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What should economists do now?
Robert Sugden
School of Economics, University of East Anglia, Norwich NR4 7TJ, UK
email@example.com
This essay is intended for inclusion in Richard E. Wagner (ed.), James M. Buchanan: A Theorist of Political Economy and Social Philosophy (in Palgrave Macmillan series: Remaking Economics: Eminent Post-War Economists)
Abstract This essay discusses the arguments in Buchanan's 1964 paper, 'What should economists do?', in the light of recent developments in behavioural economics. Criticizing the preference-satisfaction criterion of neoclassical economics, Buchanan argues that the central concern of economics should be to design and maintain institutions that allow individuals as much opportunity as possible to make their own choices and to engage in voluntary cooperation. He worries that using preference rather than choice as the fundamental normative concept might license social planners (and economists who see themselves as their advisers) to set themselves up as the judges of what individuals 'truly' prefer. This is exactly what behavioural welfare economics is now doing by using the satisfaction of (supposed) latent preferences as its criterion. Following Buchanan, I propose an opportunity-based criterion and argue that the contractarian justification for this criterion is unaffected by behavioural findings.
Keywords James Buchanan; contractarianism; opportunity; behavioural economics; paternalism.
Acknowledgements Some of the ideas presented in this essay were developed in discussions with Malte Dold, Alan Hamlin, Shaun Hargreaves Heap and Christian Schubert. My work is part of a project that has received funding from the European Research Council (ERC) under the European Union's Horizon 2020 research and innovation programme, grant agreement No. 670103.
Short biography Robert Sugden is Professor of Economics at the University of East Anglia, Norwich. His research uses a combination of theoretical, experimental and philosophical methods to investigate issues in behavioural economics, normative economics, the foundations of decision and game theory, the methodology of economics, and the evolution of conventions. His recent books include Experimental Economics: Re-thinking the Rules (Princeton University Press, 2009, with five co-authors) and The Community of Advantage: A Behavioural Economist's Defence of the Market (Oxford University Press, 2018). His current research focuses on the problem of reconstructing normative economics to make it compatible with behavioural findings.
What should economists do now?
'What should economists do?' is the title of the 1962 presidential address given by James Buchanan to the Southern Economic Association (Buchanan, 1964). It is a combative critique of what was then the prevailing understanding of economics – that economics is the science of constrained maximization, or of rational choice. Buchanan defends an alternative view of the discipline in which individual freedom and voluntary exchange are central concepts. In Buchanan's framework, the concept of preference is redundant: there is no useful sense in which individuals have preferences, independently of their actual choices. Conventional welfare economics, in which the normative criterion is the satisfaction of preferences, is therefore fundamentally misguided. My essay revisits Buchanan's arguments in the light of subsequent developments in behavioural economics, particularly the normative analysis that most behavioural economists have favoured and my own attempts to develop an alternative approach.
My work as an economist has been deeply influenced by Buchanan ever since I met him in 1977. I was then a very junior summer visitor to the Center for Study of Public Choice at Virginia Polytechnic Institute. Buchanan had invited me after reading and liking a paper I had written, criticizing Amartya Sen's formalization of the concept of individual liberty. 1 During my stay at the Public Choice Center, I came to see how my critique of Sen's theoretical framework fitted into Buchanan's contractarian conception of normative economics. Ever since that visit, I have thought of my own work in normative and philosophical economics as contractarian in the sense that Buchanan expresses in 'What should economists do?'
Since the early 1980s, I have also seen myself as working in what has come to be called 'behavioural economics'. The distinguishing feature of behavioural economics is that, in explaining economic behaviour, it draws on ideas and research methods from cognitive psychology. I have never seen any tension between these two aspects of my work. To the contrary, I have come to see David Hume's Treatise of Human Nature (1739-40/ 1978), which I first read on Buchanan's recommendation, not only as one of the greatest works in the liberal tradition of social thought, but also as a founding contribution to cognitive psychology. 2 However, I have been increasingly disturbed by the tendency for behavioural
1 The ideas in that paper appear in a more fully worked-out form in Sugden (1985).
2 I defend this view of Hume's Treatise in Sugden (2006).
economists to present their empirical findings as supporting, or even as necessitating, a paternalistic form of normative economics. I will say more about this tendency later .
There can be no doubt that behavioural research sets a serious challenge for neoclassical welfare economics. In neoclassical welfare economics, the normative criterion is the satisfaction of individuals' preferences. Each individual's preferences are assumed to be reasonably stable over time and to be independent of 'irrelevant' contextual features of the decision problems in which they are revealed. By virtue of these assumed properties, preferences are taken to be indicators of the individual's settled judgements about the value to her of alternative consumption options, or about the contributions those options would make to her well-being. But a large body of evidence shows that individuals' economic decisions often vary according to contextual cues that have no plausible relevance for welfare, but whose influence on decision-making can be explained by well-established psychological principles.
This evidence makes it difficult to defend (or even to use) preference-satisfaction as a normative criterion. But does it force economics to be paternalistic? I have spent much of the last fifteen years developing a form of normative economics that is compatible with the findings of behavioural economics, but is contractarian rather than paternalistic. Crucially, preference-satisfaction is not used as a normative criterion; instead, the criterion is the availability of opportunities for voluntary transactions. 3 I have claimed that my approach is broadly in continuity with Buchanan's. In this paper, I try to flesh out this claim by going back to Buchanan's texts.
1. Buchanan's vision of economic order
In 'What should economists do?', Buchanan's chosen adversary is Lionel Robbins. Buchanan takes issue with Robbins's famous definition of the 'economic problem' – the central subject-matter of economics – as the allocation of scarce means among alternative or competing ends. Buchanan points out that this definition says nothing about whose ends are relevant for economics. The implication is that economics is about constrained maximization or rational choice, considered in general. Buchanan's response is that concern with allocation problems per se 'is not a legitimate activity for practitioners of economics, as I want to define the discipline'; it is 'applied mathematics' or 'managerial science', not economics (1964, pp. 32–33).
3 This work is brought together in Sugden (2018).
4
As I read him, Buchanan is not saying that models of optimization should have no place in economics. On any plausible account of what we economists should do, our job description includes trying to understand the workings of resource-allocation systems in general, and of the price system in particular. Buchanan has certainly seen his own work in this way. He has described how, as a graduate student at the University of Chicago, he was 'converted into strong advocacy of the market' by Frank Knight's price theory lectures, and how his work at the University of Virginia between 1957 and 1968 focused on promoting 'understanding of the price system' (1986a, pp. 3, 10). There are many areas of economic life where the immediate problems faced by individuals can usefully be modelled as the maximization of given objective functions subject to known constraints. It would be unreasonable to deny that neoclassical models of rational choice can throw light on significant features of human behaviour in markets.
Buchanan seems to acknowledge this in his discussion of the model of perfect competition. He says that this model has a 'basic flaw' – its 'conversion of individual choice behaviour from a social-institutional context to a physical-computational one' (1964, p. 36). I think that what Buchanan has in mind is that, in the model of perfect competition, there is no direct interaction between economic agents. Each individual's decision problem can be represented as that of maximizing a utility function subject to constraints imposed by technology and by market prices. The decision problems of different individuals are connected only through prices which, although endogenous to the model as a whole, are taken as given by each individual. As a modelling device, this representation enormously simplifies the analysis of a complex network of economic interactions. Buchanan is perhaps recognizing the legitimacy of this kind of modelling when he says that what is wrong with the model of perfect competition 'is not its lack of correspondence with observed reality; no model of predictive value exhibits this' (1964, p. 36). His objection is that the model provides a misleading framework for thinking about how markets work and what they do. It encourages the thought that a competitive market just is a solution to a set of equations – that we can understand the market without considering the actual process by which equilibrium is reached. 4 For Buchanan (as for Friedrich Hayek [1948], who makes a similar argument as part of his analysis of the limitations of central planning), that process is fundamental:
4 A similar thought is implicit in David Gauthier's (1986, pp. 83–112) account of the market as a 'morally free zone'. Gauthier's contractarian theory treats a competitive market as morally equivalent to an archipelago of mutually isolated one-person island economies: 'Each person is thus a Robinson Crusoe, even in the market' (p. 91).
A market is not competitive by assumption or construction. … [An equilibrium] solution, if there is one, emerges as a result of a whole network of evolving exchanges, bargains, trade, side payments, agreements, contracts which finally at some point, ceases to renew itself. At each stage in this evolution towards solution, there are gains to be made, there are exchanges possible, and this being true, the direction of movement is modified. (1964, pp.36–37)
This is a picture of the market as a process in which individuals are free to engage in mutually beneficial interactions. Competitive equilibrium is understood as a state in which all opportunities for such interactions have been exhausted.
Buchanan's fundamental opposition to Robbins is not about the kinds of models that we economists should or should not use. In this sense, it is not really about what we should do. It is about how we should understand what we are doing. What, ultimately, is economics about?
Buchanan's answer is that economics is about exchange rather than choice. The 'idea that should be central to our discipline' is that of exchange as 'a unique sort of relationship, that which involves the cooperative association of individuals, one with another, even when individual interests are different' (1964, p. 35). Or, as he puts it in another paper, economics provides 'an understanding of the social process through which a society of free persons can be organized without overt conflict while at the same time using resources with tolerable efficiency' (1986, p. 15). Notice how the second quotation suggests an alternative definition of the 'economic problem', as a problem of institutional or constitutional choice for the members of a free society.
There is a delicate balance here between normative and descriptive argument. Buchanan has a conception of an economy based on relations of voluntary cooperation between individuals who recognize both the separateness of their interests and the existence of opportunities for them to realise mutual benefit. He clearly believes that this is a desirable form of economic order, but (as I understand him) he sees the role of economics as to help us understand how, as a matter of empirical fact, such a system works. For my part, I would not go so far as to say that this is how all economists ought to understand their subject matter, but it is a large part of how I understand it.
2. Buchanan versus Robbins
If we accept Buchanan's idea that economics is about exchange, how exactly does Robbins's definition lead us astray?
Most obviously, economics goes astray if it treats the combined outcome of the decisions made in a society of interacting individuals as if it were the solution to a single maximization problem. This thought is the core of Buchanan's (1954) early and underappreciated critique of Kenneth Arrow's Impossibility Theorem. Arrow's theorem is about the construction of a 'social' ranking of possible outcomes for society, using data about individuals' preferences over those outcomes. It is crucial to the impossibility result that the social ranking of outcomes is required to have 'collective rationality' properties that are formally similar to those that neoclassical economics attributes to individuals' preferences. Buchanan argues that there is no good justification for that requirement:
Social rationality [for Arrow] appears to imply that the choice-making process produce results which are indicated to be 'rational' by the ordering relation, that is, the social welfare function. But why should this sort of rationality be expected? … Rationality or irrationality of the social group implies the imputation to the group of an organic existence apart from that of its individual components. (1954, p. 92)
My critique of Sen's analysis of individual liberty – the critique that won Buchanan's approval back in 1977 – followed a similar logic: Sen was trying to formulate the idea that society should respect individual liberty, using a conceptual framework that included requirements of collective rationality.
To require that 'social choice' is collectively rational is to treat the combined outcome of many individual choices as if it were the choice of a single agent. As Buchanan has often said (usually citing Knut Wicksell as the originator of this critique), economists characteristically address their recommendations to some imagined single agent who takes decisions on behalf of society – the 'social planner', the 'policy-maker', the 'government'. Since the recommendations themselves are supposed to maximize social welfare, the agent to whom they are addressed must be assumed to have both the desire and the power to do whatever is necessary to maximize welfare. In other words, the imagined addressee is a benevolent despot (Buchanan, 1986a, p. 23). If one's conception of society is of voluntary interaction between free individuals, the idea that it ought to work as if were under the control of a benevolent despot is deeply anomalous.
To use the model of the benevolent despot when making a normative appraisal of the market is to think of the market as a mechanism for solving an 'economic problem' in Robbins's sense – as the means by which some independently specified social objective might be achieved. For Buchanan, this way of thinking is fundamentally mistaken:
The 'market' or market organization is not a means toward the accomplishment of anything. It is, instead, the institutional embodiment of the voluntary exchange processes that are entered into by individuals in their several capacities. That is all there is to it. (1964, p. 38).
But there is more to Buchanan's objection to Robbins's definition of economics than a rejection of the fiction of the social planner. The most basic normative principle in neoclassical welfare economics is the Pareto principle – that if, for some pair of social states x and y, every member of society weakly prefers x to y and at least one member strictly prefers x, then x is better for society than y. It is not self-evident that 'better for society' should be read as 'better, as judged by a social planner'. Might it not instead be read as 'better, as agreed by all members of society'? On this reading, one might think, the Pareto principle uses the idea that individuals have rational preferences without presupposing anything about social rationality. Extending this idea, one might think of the concept of individual preference as one of the basic building blocks of any liberal form of normative economics. This thought becomes particularly plausible if, moving beyond the kind of mathematics used by Robbins, one considers the role of (non-cooperative) game theory in present-day economists' models of human interaction. Game theory is based on maximizing principles of individual rationality that are stronger than the ordinal principles invoked by Robbins: the concept of 'payoff' used in game theory presupposes that individuals' preferences satisfy the axioms of expected utility theory. (Thus, utility is assumed to be cardinal, but there is no assumption of interpersonal comparability.) But the 'solution concepts' used in game theory are intended to represent the players' common knowledge of each other's individual rationality; there is no assumption that the solution to a game is collectively rational in Arrow's sense. Think of the Prisoner's Dilemma. Defection by both players is normally understood to be the uniquely correct solution to this game – the only combination of strategies that is consistent with common knowledge of rationality – even though it is clearly sub-optimal from a social point of view.
Nevertheless, 'What should economists do?' is written as an objection to the maximizing perspective in general, and not merely to the idea of maximizing a social welfare function. Buchanan is more explicit about this in a later work, in which he argues that economics took a wrong turn after Alfred Marshall. As in the 1964 paper, that wrong turn is characterized as the search for 'maximizing or optimizing solutions within the constraints of specific wants, resources and technology', which Buchanan now calls the 'mathematical perspective'. Explaining what is wrong with this perspective, he says:
I suggest that the mathematical perspective takes hold once we so much as define persons as utility or preference functions and implicitly presume that these functions exist independently of the processes within which persons make actual choices… By postulating such functions independently, and by imposing the resource constraints, it then becomes possible to define, at least conceptually, the 'efficient' allocation of resources, quite apart from any voluntary process of agreement among trading parties. This formalization of the efficiency norm then allows the market to be conceptualized as merely a means, a mechanism, one among others, to be tested or evaluated in terms of its efficacy in attaining desired results in the utilization of resources. (1986, pp. 16–17)
What Buchanan is objecting to here is an assumption that he takes to be implicit in most forms of neoclassical economics – the assumption that an individual's preferences can be identified prior to decision problems in which they can be expected to be revealed.
An economist who takes the 'mathematical perspective' might question whether economics does assume this. She might point out that the economic concept of preference is understood in relation to choice. According to one common account of the relationship between preference and choice, a preference for x over y is a prevailing disposition to choose x rather than y. Alternatively, according to a strict revealed-reference account, to say that a person prefers x to y is to say that she would not choose y from an opportunity set that contained x. On either account, the economist's claim to knowledge about a person's preferences at any given time is based on evidence about what that person has chosen in the past, or on other information that is relevant for predicting how she will choose in the future. Nevertheless, Buchanan's claim is correct. Whenever economists use propositions about preference to explain or predict individuals' choices, they are endorsing a conceptual distinction between preference and choice – the distinction between what justifies one in making a prediction and what makes that prediction true or false.
If I am reading Buchanan rightly, he does not deny the potential usefulness of preference-based models as aids to predicting individual behaviour. But when what is at issue is the normative evaluation of institutions, he sees the separation of preference and choice as inconsistent with his favoured conception of individual liberty. This alleged inconsistency has two sources, which I will consider in turn.
3. Liberty as individual sovereignty
When Buchanan (1986a, 1986b) writes about his own intellectual development, he describes his political position before going to the University of Chicago in 1945 as 'libertarian socialist' or 'populist'. Explaining the libertarian component of this position, he says:
The person who shares this perspective places a primary value on liberty, as such. He personally disputes, rejects, resents, opposes attempts by others to exercise control or power over his own choice behaviour. He does not like harness. There is an exhilaration in simply being free. (1986a, p. 4)
This attitude to liberty, he says, is encapsulated in the words 'Don't tread on me' on the rattlesnake banner flown in the American War of Independence (1986a, p. 5). Socialism and populism enter the picture through the young Buchanan's identification of those who might exercise power over him as 'robber barons' (people who, he says, seemed very real to him in 1945) and the 'Eastern establishment' (with which even the later Buchanan was never quite able to reconcile himself). The point of the story is that Buchanan's socialism was shortlived, but his commitment to libertarianism continued throughout his life.
'Don't tread on me' expresses a first-person conception of liberty. Liberty is something that I can demand. I do not need to give reasons why my having liberty is fitting for me as a human being, or why this is good for society as a whole, or even why it is good for me. No one has the standing to ask me for reasons. It is enough that I want liberty and am entitled to have it. In more philosophical vein, Buchanan describes this position as 'normative individualism':
The justificatory foundation for a liberal social order lies… in the normative premise that individuals are the ultimate sovereigns in matters of social organization, that individuals are the beings who are entitled to choose the organizational-institutional structures under which they will live… If individuals are considered the ultimate sovereigns, it follows directly that they are the addressees of all proposals and arguments concerning constitutional-institutional issues' (1991, p. 288).
The sentence about addressees expresses what I take to be the fundamental principle of Buchanan's contractarianism – that normative analysis is addressed to individual citizens as potential parties to mutually beneficial agreements. The relationship of citizen to government is not that of passive subject to benevolent ruler; it is that of principal to agent.
If one thinks in terms of a principal–agent relationship, it is easy to understand why an individual citizen might be reluctant to allow public decisions to be justified in terms of claims about what he and his fellow-citizens prefer. For a citizen to allow this would be for him to transfer normative authority from himself as sovereign chooser to someone else (let us call her the 'social planner') who acts as the judge of what he prefers. It opens up the possibility that the planner might use her own judgements about the citizen's true preferences to overrule his actual choices. Buchanan characterizes the standard approach to normative
economics as a construction in which there is an 'ontological assumption that there is "something" – whether called a utility function or not – that exists and can, at least conceptually, be objectified and separated from individual choice'. If this assumption is made:
[The] relationship between an individual's choice behaviour and his or her utility function becomes a matter of fact. That is, there arises a factual question open to investigation concerning the correspondence between the choices made and the change in the individual's position as measured on the independent scalar… [And then it makes sense] to raise the question as to whether the individual or some third party or parties can most reliably identify the choices that are defined as 'best' in terms of the given utility function. (1991, p. 283)
Buchanan is committed to a different assumption: 'My own ontological presuppositions do not allow any conceptual separation or distinction between an individual's choice behaviour and his or her utility function… All there is are individual choices' (1991, p. 286).
Thus, for Buchanan, an individual's liberty should not be understood in terms of his getting what he prefers, with 'preferring' defined independently of 'getting'. His liberty should be understood in terms of what he is free to choose. This is a property of his choice set – the set of options between which he is able to choose. Crucially, an individual's choice set is defined without reference to his preferences. This line of thought leads Buchanan to the conclusion that it is in each person's interest that his choice set is 'as open as is naturally possible' (1979, pp. 258–259).
Taking the first-person view of liberty, you can demand that you are not prevented from choosing a certain option, say x, without having to give any reason for that demand, other than that x is something that you might want to choose. You can say that without actually having any current desire to have x. Thus, your demand cannot be countered by a social planner who judges, perhaps on the best possible evidence of your previous behaviour, that you have no current preference for x and are unlikely to have such a preference in the future. Notice that, in making this demand, you are asserting your sovereignty now to act on behalf of your future self, and the principle on which you are acting is that of trying to ensure that, in the future, you will be able to get what you then want – even if you do not yet know what that will be. You now want it to be the case that if, in the future, you want x, you will
be able get x. 5 That seems to me to be an uncomplicated application of the principle of 'Don't tread on me'.
In some of his writing, however, Buchanan seems to want to connect the demand for freedom of choice to philosophically deeper notions of ontology and to morally deeper ideas about what it means to be human. I believe that these moves are not necessary for Buchanan's contractarian approach, and are liable to undermine it. Let me explain.
4. Liberty as autonomy
In 'What should economists do', Buchanan objects to the conception of human agency that he sees as built into the theory of rational choice:
In one sense, the theory of choice presents a paradox. If the utility function of the choosing agent is fully defined in advance, choice becomes purely mechanical. No "decision", as such, is required; there is no weighing of alternatives. On the other hand, if the utility function is not wholly defined, choice becomes real, and decisions become unpredictable mental events. (1964, p. 34)
The idea seems to be that, because choice theory represents decisions as predictable (given data about preferences), it is modelling human agents as mere mechanisms, lacking in autonomy. The decisions of an autonomous agent, it is implied, would necessarily be unpredictable.
These thoughts are developed much further in Buchanan's 1979 paper 'Natural and artifactual man'. This paper has a more Austrian flavour than most of Buchanan's other work; he says that it was influenced by the work of George Shackle, which he had been reading at the time (Buchanan, 1979, p. 251). Buchanan wants to contrast 'natural man', understood as a being whose behaviour can be predicted and explained naturalistically, with 'artifactual man', understood as an actor whose decisions are autonomous and thereby unpredictable, and who views his future self as his own construction (1979, pp. 246–248).
As in his 1964 paper, Buchanan argues that rational choice theory represents individuals as non-autonomous:
The rational ideal eliminates choice, as Shackle emphasizes. Choice requires the presence of uncertainty for its very meaning. But choice also implies a moral responsibility for action. To rationalize or to explain choices in terms of either
5 This is a conception of individual agency as a continuing locus of responsibility. I say more about this in Sugden (2004).
genetic endowment or social environment removes the elements of choice and responsibility. (1979, p. 257)
Notice that Buchanan is classifying rational choice theory together with other branches of natural and social science that claim to give empirical explanations of human behaviour. Such explanations, he claims, treat human beings as if Homo sapiens were just a 'natural animal', one animal species among many. But it is intrinsic to the nature of human beings that their behaviour cannot be fully predicted; and unpredictability is an essential part of moral responsibility:
If individual man is to be free, he is to be held accountable, he is to be deemed responsible for his actions. But at the same time he is allowed to take credit for his achievement. Who can claim credit for results that could have been predicted from nature? From a knowledge of his genetic endowment or his social environment, or both? But once man is conceived in the image of an artifact, who constructs himself through his own choices, he sheds the animalistically determined path of existence laid out for him by the orthodox economists' model. (1979, pp. 257– 258)
On this view, the whole idea of a science of human behaviour is morally objectionable.
The aspect of autonomy that is central to Buchanan's 1979 paper is the possibility of deliberately choosing the kind of person that you will become. He gives the example of spending on education, characterized as 'investing in becoming' – investing in creating 'the person that we want to be rather than the one we think we might be if the spending is not made in this way'. Musical appreciation is another example: through study and practice, you can invest in a way that will shift your preferences towards being appreciative of certain kinds of music (1979, pp. 248–249). Buchanan's approval of self-creation extends to forms of 'investment in becoming' by which you voluntarily subject yourself to constraints that you cannot then reverse, or authorize other people to coerce your future self against acting on its desires (p. 253). 6
As long as trying to influence your future preferences is understood as just one of the many ways in which you might use freedom of choice, there is perhaps no tension between this line of thought and 'Don't tread on me'. But Buchanan takes a further step: he presents his picture of artifactual man as the reason why liberty is valuable.
6 Approval of unilaterally self-imposed constraints is a recurring theme in Buchanan's work, aligned with his advocacy of constitutional rules to restrict day-to-day political decision-making. His analysis of the 'Samaritan's dilemma', for which the solution is a self-imposed rule against generosity to would-be 'parasites', is an example (Buchanan, 1975a).
[Man wants liberty] precisely because he does not know what man he will want to become in time. Let us remove once and for all the instrumental defense of liberty, the only one that can possibly be derived directly from orthodox economic analysis. Man does not want liberty in order to maximize his utility, or that of the society of which he is a part. He wants liberty to become the man he wants to become. (1979, p. 259; italics in original)
And he tells us that we ought to want liberty for this reason: 'Individually, persons must recapture an ability to imagine themselves as "better" persons than they are' (1979, p. 254).
I think these are wrong moves for a contractarian who values liberty. A contractarian justification of liberty needs to show each and every individual that liberty is in his or her own interests, as he or she understands them. But if the value of liberty really is tied to the unpredictability of human choice, a person who believes that his own decisions are predictable will not be able to see why his own liberty is valuable to him. And if the true reason for wanting liberty is to act as an 'artifactual man', a person who does not think of his future self as his own artifact is left without a reason for wanting to be free. Remember that the addressees of a contractarian argument are individual citizens, viewed as sovereigns. Ultimately, the only reasons that matter are the reasons that those citizens actually accept. The greater the degree to which an argument depends on specific ontological claims or on specific ethical commitments, the less power that argument has. Viewed in this perspective, 'Don't tread on me' looks a more promising justification for liberty than self-creation.
Why might someone want liberty without subscribing either to the ontology or to the self-creation ethic of Buchanan's 1979 paper? With respect to the ontology, my answer is that predictability is compatible with autonomy. Autonomy, as I understand it, is a sense of volition. It is a person's subjective perception of herself as the cause of her own actions – her perception that she has the power to act in ways that in fact she chooses not to do. It is possible to have this sense about highly predictable decisions. Take a personal example. Over the last five years, I have faced hundreds of decision problems in which my choice set contained both coffee and Coke. In that time, I have chosen coffee hundreds of times and (I am fairly sure) never chosen Coke. This pattern of behaviour is consistent with the hypothesis that, with respect to those two drinks, I prefer coffee to Coke and make rational choices between them. The proximate explanation for this behaviour is that I like the taste of coffee and do not particularly like that of Coke (which I can remember from drinking it long ago). These tastes may well have physiological causes. But whatever the explanation, my choices between the two drinks feel autonomous to me. On any occasion on which I face this choice, I have no sense of compulsion to choose coffee: my internal sense is that I could choose Coke, I just don't want to. And because I can imagine wanting to choose Coke in future situations, I can want Coke to continue to be an option in my choice set. I can say to a social planner: Just because I haven't chosen Coke for five years, don't presume that I will never want to choose it in the future. Let me choose for myself. Don't tread on me.
What about the ethic of self-creation? I can accept that some people make conscious efforts to shape their future preferences, but liberty also matters to those who don't. As far as I can recall, I never thought of my own educational choices as attempts to change my preferences. When I went to university at the age of eighteen, I had a strong sense of what Buchanan describes as exhilaration in being free – free from the oversight of parents and schoolteachers, free to try out new experiences. I looked forward to enjoying new intellectual challenges and having new opportunities to exercise my abilities. And, like most of my contemporaries, I expected that getting a university degree would be a stepping stone to some fulfilling career from which I would earn a comfortable income. Although I had only hazy ideas about what exactly these opportunities would be, I was excited about what might lie ahead. All this gave me good enough reasons to value my liberty. If someone had said to me that I ought also to have been trying to improve my preferences, I could reasonably have replied that it was up to me to decide whether or not my preferences were in need of improvement. 7 Don't tread on me.
Treating unpredictability and self-creation as the reasons for valuing liberty reduces the constituency to which contractarian arguments for liberty can be addressed. It can also provide would-be social planners with arguments for restricting citizens' freedom of choice. From the idea that autonomy necessarily involves unpredictability, it is a short step to the idea that people whose choice behaviour is stable over time are not autonomous agents, but merely natural animals for whom liberty serves no purpose. From the idea that liberty has value precisely because it allows individuals to engage in self-creation, it is a short step to the idea that liberty has no value to individuals who make no effort to improve themselves. Dual-self models of self-constraint, in which a person's 'planning' self imposes constraints on his 'impulsive' self – the model that is implicit in the story of Odysseus and the Sirens – encourage would-be social planners to suppose that their fellow-citizens have latent desires
7 In fairness to Buchanan's adversary, I should add that I was fortunate in being able to go one of the 'new universities' established in Britain in the 1960s on the recommendation of a committee chaired by the then Lord Robbins. My education there had all the properties that tend to foster self-creation.
for restrictions to be imposed on their choice sets. I do not want to claim that Buchanan's account of the connection between liberty, autonomy and self-creation directly justifies any constraints on choice other than those that each individual chooses to impose on herself. Still less do I want to claim that Buchanan favoured such constraints. But I do maintain that there is a tension between Buchanan's treatment of autonomy and his contractarianism.
It seems to me that the best way to resolve this tension is to distinguish between contractarian arguments and personal value judgements about a good society. When you write as a contractarian, your arguments are addressed to your fellow-citizens and are intended to engage with their judgements about their interests. But taking a contractarian perspective in your work as a normative economist does not debar you from expressing your own ideas about a good society – provided you acknowledge the distinction between the two activities. In Buchanan's picture of a good society, each person wants liberty to become the person he or she wants to become. And so, in that imagined society, each person wants its institutions to be structured so that each person has a rich range of opportunities for selfcreation, including opportunities for Odysseus-like self-constraint. But unless actual people, here and now, want these things, all this just is a picture of an ideal world. There is a sense in which painting such pictures is what Buchanan (1975b, pp. 1–2) has called 'play[ing] at being God'. That is not an intellectual crime, but it is not contractarianism.
5. What should economists do with the findings of behavioural science?
Buchanan's arguments about what economists should do were written in a period when almost all economists were content to assume that individuals' decisions revealed wellbehaved context-independent preferences. In denying the usefulness of the concept of preference, Buchanan was opposing a central feature of received economic theory. His critique of the way the concept of preference was used in normative economics was taken up by only a tiny minority of economists (of whom I was one). But since then, there has been a huge change in economists' understanding of decision-making behaviour. How far individuals' choices reveal well-articulated preferences is one of the central topics of behavioural economics, and behavioural economics is at least well on the way to becoming mainstream.
One of the fundamental findings (or rediscoveries 8 ) of behavioural economics is that individuals' choices are often context-dependent. That is, an individual's choices between what economics has normally understood as 'given' options vary according to features of the decision environment that seem to have little relevance to the individual's interests or welfare, but whose effects are psychologically explicable. To give just a few examples: choices from given sets of options are systematically influenced by which option is described as the status quo and by manipulations that direct the chooser's attention to particular features of those options; preferences between given pairs of options differ according to whether they are elicited directly in choices or inferred from monetary evaluations elicited for the two options separately; preferences between 'smaller sooner' and 'larger later' payoffs reverse as the 'sooner' date approaches. 9
On the most natural interpretation, this body of evidence confirms Buchanan's criticism of the 'mathematical perspective' of neoclassical economics – the criticism that it illegitimately assumes that preferences exist independently of the processes within which persons make actual choices. Ironically, however, the confirmation takes a form that Buchanan might not have welcomed. Recall that one of Buchanan's objections to the conventional theory of rational choice is that it treats human decision-making as predictable by the methods of empirical science; he thinks that this approach fails to recognize human choice as autonomous. Behavioural economics is much more empirical than rational choice theory. An advocate of rational-choice theory might claim that the reason why that theory can be expected to predict successfully is that human decision-makers really are autonomous rational agents: all that is being predicted about them is that their reasoning is consistent with the principles that define what is meant by 'rationality'. But if behavioural economics is grounded on empirical psychology (as its practitioners normally claim it is), it must use what Buchanan calls a model of 'natural man'. Given Buchanan's distrust of genetic and social-
8 Many of these effects were known, to psychologists and to some economists, long before the explosion of interest in behavioural economics. (For example, Wicksteed's [1910] exposition of neoclassical economics includes psychologically acute discussions of many now-familiar 'anomalies'.) What is new is the widespread recognition of the economic significance of these effects.
9 There is far too much evidence about these and other 'anomalies' for specific citations to be useful. A representative sample of this evidence is collected in Kahneman and Tversky (2000).
environmental explanations of choice behaviour, it is reasonable to guess that he would not have felt much sympathy for the programme of behavioural economics. 10
For my purposes in this essay, what is particularly interesting about the way that behavioural economics has developed is its confirmation of one of Buchanan's criticisms of what his fellow-economists do. Recall his argument that if utility can be 'objectified and separated from individual choice', it becomes meaningful to ask 'whether the individual or some third party or parties can most reliably identify the choices that are defined as "best" in terms of the given utility function' (1991, p. 283). To an economist who is confident in the predictive power of rational-choice theory, Buchanan's concern might seem misplaced. If an individual's utility function really can be constructed from observations of her previous choies, and if that function really can predict her future choices, why should she worried if the identification of what is best for her is made by a 'third party' who knows what that function is? Of course, Buchanan's starting point was scepticism about the predictive power of rational-choice theory, given the autonomy of human decision-makers. But behavioural economics gives further reason for that scepticism, and therefore further reason for concern about allowing social planners to judge what is best for an individual.
Among behavioural economists, there is now a broad consensus about how normative analysis should be conducted. The essential idea can be traced back to Cass Sunstein and Richard Thaler's (2003) well-known story of the (hypothetical) cafeteria in which customers' choices between food items are influenced by the relative positioning of the items on the cafeteria counter. Other things being equal, more prominently displayed items are more likely to be chosen. The cafeteria director can choose what display to use. Treating this example as a microcosm of the problem of how to do welfare economics when individuals' choices are context-dependent, Sunstein and Thaler ask how the director should make this choice. They conclude that, because individuals lack well-defined preferences that the director could try to respect, the idea that there are 'viable alternatives to paternalism' is a 'misconception'. They argue that the director should be a libertarian paternalist: she should not constrain the customers' opportunities for choice, but she should display the items in the
10 As far as I can recall, issues arising from behavioural economics did not feature in any of the many conferences at which Buchanan and I were co-participants. In his later years, I would have been reluctant to initiate discussion of topics on which I expected the two of us to have fundamental disagreements.
way that results in their making the choices 'that she thinks would make the customers best off, all things considered' (Sunstein and Thaler, 2004, pp. 1164–1165, 1182).
In their later book Nudge, Thaler and Sustein (2008) are more explicit about the criterion that normative economics should use. They say that their recommendations are designed to 'make choosers better off, as judged by themselves'. Expanding on this, they say that behavioural economics has shown that 'in many cases, individuals make pretty bad decisions – decisions that they would not have made if they had paid full attention and possessed complete information, unlimited cognitive abilities, and complete self-control' (p. 5). The clear implication, confirmed over the subsequent course of the book, is that 'better off, as judged by themselves' is to be interpreted by reference to the preferences that the relevant individual would have revealed, had his decision-making not been impaired by limitations of attention, information, cognitive ability or self-control. In other words, normative analysis should try to reconstruct individuals' underlying or latent preferences by simulating what they would have chosen, had they not been subject to imperfections of reasoning and information. Notice the implicit assumption that latent preferences are not themselves context-dependent. (Remember that the point of using latent rather than revealed preferences is that revealed preferences are context-dependent.) As Gerardo Infante, Guilhem Lecouteux and I have argued, this method of analysis proceeds as if, inside each individual, there is an inner rational agent with neoclassical preferences; behavioural deviations from neoclassical theory are supposed to occur because of psychologicallyinduced 'errors' in the implementation of the agent's latent preferences (Infante et al., 2016).
In slightly different forms, this implicit model of an inner rational agent recurs in many attempts to derive normative conclusions from behavioural economics. 11 Some authors try to 'purify' revealed preferences by identifying and removing the alleged effects of errors of reasoning. Others try to identify the environments in which individuals' decisions are least prone to error and then infer individuals' preferences by using only data generated in those environments. Clearly, this strategy of behavioural welfare economics can work only if the concept of latent preference has an objective definition – if it is not just another word for the analyst's personal judgement about what is best for each individual – and only if latent preferences are context-independent. But the advocates of this strategy usually offer (at best) only rough sketches of how 'error' is to be defined operationally, and almost never try to
11 This paragraph contains sweeping claims that some behavioural economists might dispute. The evidence on which they are based is presented in Infante et al., 2016 and Sugden, 2018).
justify the crucial assumption that, after the effects of error have been eliminated, preferences will be found to be context-independent. Viewed in the perspective of empirical psychology, the whole concept of latent preference seems question-begging and redundant. (If actual choices can be explained as the result of known mental processes, why should we expect there to be other mental processes, as yet undiscovered, that generate preferences that are not used in decision-making but which happen to have the properties that correspond with the axioms of rational-choice theory?) Thus, whatever its advocates may intend, the strategy of behavioural welfare economists leaves the social planner or her adviser with a large amount of discretion in specifying individuals' latent preferences, and very little useful guidance about how that discretion should be used.
I conclude that Buchanan was right to be worried about the conceptual distinction in neoclassical economics between preference and choice, and about the practice of using preference rather than choice as the fundamental normative criterion. His worry was that this practice might license social planners (and economists who think of themselves as advisers to social planners) to set themselves up as the judges of what individuals 'truly' prefer, and to design social institutions to satisfy those supposed preferences. That is exactly what behavioural welfare economics is now doing.
How else might normative economics be done? Buchanan offers an obvious answer – obvious, that is, to anyone who shares his commitment to individual sovereignty:
[Each person] has a clear interest in seeing that the choice set, the set of alternative imagined futures, remains as open as is naturally possible, and, if constrained, that the constraints be also of his own choosing. (1979, pp. 258–259)
In other words, the normative criterion should be one of opportunity. Roughly speaking, the aim should be to set up institutions that give individuals as much opportunity as possible to do whatever they want to do, both in their actions as separate individuals and in voluntary transactions with one another. In designing these institutions, there is no need to consider what individuals' preferences in fact are: the aim should be to ensure that individuals are able to act on whatever preferences they may happen to have in any particular context, at any particular time. Or, as Buchanan might put it, there is no need to talk about preferences at all; all that matters are opportunities to choose. Whether or not an individual's choices can be rationalized by context-independent preferences is beside the point.
This general strategy can be followed in at least two different ways. One way is arguably in the spirit of Buchanan's arguments about autonomy and self-creation. Its aim is to design and maintain institutions that individuals would want, were they to attach sufficient importance to being free to engage in self-creation. Or to put this another way, its aim is to create a society in which individuality and self-creation can flourish. Some ideas about how this approach to normative economics might be developed can be found in the work of Shaun Hargreaves Heap (2013, 2017), Christian Schubert (2015) and Malte Dold (2018).
The other way forward is the one that I have been developing, and which is summarized in my book The Community of Advantage (Sugden, 2018). This way, I believe, is more faithful to the spirit of Buchanan's contractarianism and to the slogan of 'Don't tread on me'. It accepts that individuals' choices are often context-dependent in ways that psychological theories can predict and that neoclassical theory would classify as irrational, but does not interpret that fact as compromising individuals' autonomy as choosers or their claims to sovereignty. It views the market favourably, for the same reasons that Buchanan does when he says that the market is the institutional embodiment of voluntary exchange between individuals in their several capacities. The market, and civil society more generally, is not a means to the accomplishment of anything – not even a means to the flourishing of individuality. Voluntary interaction is, as Buchanan says, all there is to it.
References
Buchanan, James (1954). Social choice, democracy, and free markets. Journal of Political Economy 62: 114–123. Reprinted in Buchanan (1999).
Buchanan, James (1964). What should economists do? Southern Economic Journal 30: 213–222. Page references to reprint in Buchanan (1999).
Buchanan, James (1975a). The Samaritan's dilemma. In Edmund Phelps (ed.), Altruism, Morality and Economic Theory. New York: Russell Sage Foundation, 71–85. Reprinted in Buchanan (1999).
Buchanan, James (1975b). The Limits of Liberty: Between Anarchy and Leviathan. Chicago: University of Chicago Press.
Buchanan, James (1979). Natural and artifactual man. In James Buchanan, What Should Economists Do? Indianapolis: Liberty Fund, 93–112. Page references to reprint in Buchanan (1999).
Buchanan, James (1986a). Liberty, Market, and State. Brighton: Wheatsheaf.
Buchanan, James (1986b). Better than plowing. In Banco Nazionale del Lavoro Quarterly Review 159: 359–375. Page references to reprint in Buchanan (1999).
Buchanan, James (1991). The foundations for normative individualism. In James Buchanan, The Economics and the Ethics of Constitutional Order. Ann Arbor, MI: University of Michigan Press. Page references to reprint in Buchanan (1999).
Buchanan, James (1999). The Collected Works of James M. Buchanan: Volume 1. Indianapolis, IN: Liberty Fund.
Dold, Malte (2018). Back to Buchanan? Explorations of welfare and subjectivism in behavioral economics. Journal of Economic Methodology 25: 160-178.
Gauthier, David (1986). Morals by Agreement. Oxford: Oxford University Press.
Hargreaves Heap, Shaun (2013). What is the meaning of behavioural economics? Cambridge Journal of Economics 37: 985–1000.
Hargreaves Heap, Shaun (2017). Behavioural public policy: the constitutional approach. Behavioural Public Policy 2. Available online at: https://doi.org/10.1017/bpp.2016.8
Hayek, Friedrich von (1948). Individualism and Economic Order. Chicago: University of Chicago Press.
Hume, David (1739-40/ 1978). A Treatise of Human Nature. Oxford: Oxford University Press.
Infante, Gerardo, Guilhem Lecouteux and Robert Sugden (2016). Preference purification and the inner rational agent: a critique of the conventional wisdom of behavioural welfare economics. Journal of Economic Methodology 23: 1–25.
Kahneman, Daniel and Amos Tversky (eds) (2000). Choices, Values, and Frames Cambridge: Cambridge University Press and Russell Sage Foundation.
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Schubert, Christian (2015). Opportunity and preference learning. Economics and Philosophy 31: 275–295.
Sugden, Robert (1985). Liberty, preference and choice. Economics and Philosophy, 1: 213– 229.
Sugden, Robert (2004). The opportunity criterion: consumer sovereignty without the assumption of coherent preferences. American Economic Review 94: 1014–1033
Sugden, Robert (2006). Hume's non-instrumental and non-propositional decision theory. Economics and Philosophy 22: 365–391.
Sugden, Robert (2018). The Community of Advantage: A Behavioural Economist's Defence of the Market. Oxford: Oxford University Press.
Sunstein, Cass and Richard Thaler (2003). Libertarian paternalism is not an oxymoron. University of Chicago Law Review 70: 1159–1202.
Thaler, Richard and Cass Sunstein (2008). Nudge: Improving Decisions About Health, Wealth, and Happiness. New Haven, CT: Yale University Press.
Wicksteed, Philip (1910). The Common Sense of Political Economy. London: Macmillan.
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Lowestoft Archaeological and Local History Society
Volume 43 Number 5 – NEWSLETTER – May 2015
Society website: www.lowestoftlocalhistory.co.uk
What's On in 2015
14 May 2015 "A Kirkley slide show" – by Chris Brooks
18 May 2015 Annual General Meeting
10 Sept 2015 "A Suffolk Village in Wartime" – by Sheila Wright
24 Sept 2015 "The Amazing Tale of Ali Pasha" – by Don Friston
Most meetings are held in the SOUTH LOWESTOFT METHODIST CHURCH HALL, at the corner of LONDON ROAD SOUTH and CARLTON ROAD, at 7.30 pm (Entry via LONDON ROAD SOUTH)
Please ring bell if the door is locked
Chairman's Report
The Annual General Meeting will be held on Thursday May 28 th .
I would like to ask members to please consider if they want to make suggestions about the running of the Society which can be done by speaking to me, the Secretary or any Committee member.
The Curator of Southwold Museum has invited Members to make a morning visit to the Museum. If there is sufficient interest, I will contact her and find a suitable date which is likely to be late September or early October. Please let me or another Committee member know if you are interested. A date will be fixed in September.
Reminder of our summer church visit to Great Yarmouth Minster, 6.30 Tuesday June 23 rd , followed by a meal at the Foxburrow Inn. Please let Jenny know if you have not already done so.
Marilyn Duerden – Chairman
Recent talks and meetings
23 April 2015 – "Lost Villages of Norfolk" – by Richard Mundy
Before Richard started, he displayed an outline map of Norfolk with lost villages marked in red and existing places in black, and it was amazing to see how many lost ones there were. He commenced by asking "Why Norfolk?" The reply was that in the 11th century, it was the most densely populated county in England and that over 150 villages known then have subsequently disappeared or been noticeably changed. Before going on to explain the reasons that had been responsible for this, he asked "What is a lost village?" In Norfolk, it applies not only to settlements destroyed by coastal erosion but also to deserted, shrunken or shifted villages, for which Richard outlined the factors which were most influential.
Richard's talk continued under nine headings as follows:
Climate change resulting in crop failure. The 13th century enjoyed stable and warm dry weather but colder and wetter conditions in the 14th century caused failed harvests in 1315 and 1316. Years of poor harvests and widespread food shortages, undermined the stability of many rural communities.
Disease and pestilence. During poor climatic conditions between 1319 and 1321 came cattle disease, then The Black Death in 1349, followed by further plague outbreaks in 1361-2, 1369, 1379-83 and 1389-93. Norfolk's already declining rural population was badly hit. Little Ringstead was one of the lost villages identified as having been directly affected (with 17 tax payers in 1332 but needing massive tax relief after 1349) and never recovered.
Farming practices. Partly as a result of falls in population and partly in response to the demand for wool, there was a change from the traditional three-field system, which required a lot of labour, to grazing sheep. Richard gave several examples of "flockmasters". These were men who bought up land that had once been open arable fields and converted it into enclosed sheep pasture. Thomas Thursby (1450-1510) was one of the most well documented as he was mayor of King's Lynn several times, also Lord of the Manor of Gayton and an ancestor of Prince William through the Spencer family. Others were Henry Fermur in Thorpland, William Day in Alethorpe, Edmund Jermyn in Sturston, and William Fermur (son of Sir Henry) in Pudding Norton. The behaviour of these, and others like them, towards the landless peasants was often very poor and one of the main causes leading to Robert Kett's rebellion in 1549.
Embarking. The practice by the lord of the manor of building stately homes and enlarging landscape gardens on land that was once part of a village's field system, either after natural wastage or by ruthless acquisition (similar to Engrossment, below). Houghton is a good example of a village lost when Sir Robert Walpole built his Hall, and Wolterton suffered similarly when Horatio Walpole commissioned a Hall there.
Soil quality in Brecklands. With over 30 identified locations, the Brecklands was reknowned for having the highest concentration of deserted villages in Norfolk. In prehistoric times, the light, workable soils encouraged a very high residency level. The early farmers practised a 'slash and burn' technique and the 'broken' plots of land became known as Brecks, which after a dry spell could be seriously affected by wind erosion. After a visit in 1677, John Evelyn recorded a local joke: "Which county is your farm in, Norfolk or Suffolk? Well, that depends on which way the wind's blowing". Sheep and rabbits contributed to the removal of vegetation leading to further erosion of the fragile soils.
Coastal erosion. The removal of the soft glacial deposits which make up the East Anglian coastline has been an on-going process due to isostatic recovery following the most recent glaciation, and when it affected settlements, was the one most likely to be highlighted in the news. Just offshore from Cromer was the village of Shipden, submerged in the 14th century. In 1888, a coastal passing tug struck the ruined tower of St. Peter's church. Further south along the coast was once the famous village of Eccles-on-Sea. Much of it was washed away in a violent storm of 1604, but the church tower remained on the beach to be gradually removed by subsequent storms and high tides, finally disappearing in 1895. Clare near Mundesley, Keswick near Bacton, Wimpwell near Happisburgh and Waxham Parva near Horsey are further examples on this stretch of coastline.
Engrossment. This was the gradual enlarging of the lord of the manor's lands from the 16th century onwards. Unlike embarking, the lord often purchased the land of his tenants, usually after they had died. Ultimately, this process would create an estate consisting of a sole manor house, a home farm and a church.
Military requisition. Some Norfolk villages were "lost" more recently. During WW2 the Stanford Military Training Area (known as STANTA) was established after a public meeting, in June 1942, when villagers from Lynford, Langford, West Tofts, Tottington, and Stanford were given one month to move out. Nearly 1,000 men, women and children were forcibly evacuated from the 17,500-acre site. The promised return after the war never took place. Some of the churches (only visitable by permission of the MoD), remain as reminders of the lost settlements. In September 2009, William Hancock, one of the evacuees, was interred next to members of his family, by special dispensation, in the churchyard of St. Andrew's, Tottington, the first for 50 years to be buried at the church in which he had been christened.
Proximity to Norwich. As Norwich, the second city of England in the Middle Ages, continued to prosper, it may have sucked in the population from surrounding marginal villages. See Neil Batcock The Ruined Churches of Norfolk , where he suggests the abandonment of Markshall, to the south of Norwich, may have been due to its closeness to the city. Bowthorpe, Earlham and Bixley may have suffered a similar fate in later years.
For each of his nine listed categories, Richard produced examples with diagrams and photographs, mostly of ruined church towers, often all that remains visible of what were once thriving settlements. One location well worth a visit is Godwick, between Dereham and Fakenham, in the care of English Heritage and possessing some of the finest surviving earthworks for a medieval lost village. It suffered from several of the problems listed above, also weather, disease and heavy clay soils. It declined in the 15th century and was virtually abandoned by 1595.
Richard ended with a selection of photographs of the delightful round tower church of St. Margaret's at Hales, now at some distance from the resident population. With the many other examples described, these should encourage those who heard the talk to visit this, and as many of the other "lost villages" as possible.
23 April 2015 – "The Mappa Mundi" – by Ron Ashman
What is a Mappa Mundi? Mappa means 'cloth or chart' – Mundi means 'of the world'. In other words it is a map of the then known world. Mappa Mundi is actually a generic term and there are more than one Mappa Mundi. However, the one on display in Hereford Cathedral is unique as it is the only complete wall map of the world known to have survived since the Middle Ages. The map is drawn on vellum, a type of leather that is fine and strong. A single skin has been used meaning there are no seams or joins. The map measures 64 inches top to bottom and 54 inches across. It is dated to the end of the 13th century, probably about 1280, and was thought to have been a teaching aid. The original text was in Latin and Norman French, but all the pictures shown in Ron's talk were taken from a copy of the map that was available to view afterwards, and used an English translation.
There had been a larger and older map, called the Ebstorf Map, but that was destroyed in an allied bombing raid in 1943. It measured 11 feet by 11 feet and was possibly dated to 1235.
The Hereford Mappa Mundi has a number of style differences to maps of today and can look primitive and inaccurate. It was never meant to be used for navigational purposes – the land mass and seas were 'sketches'. The British Isles are rather elongated and kidney shaped with Scotland being shown separated from England by the river Tweed. There are also some geographical inaccuracies as Durham is shown to be to the west of York. Cities are marked by a castle-shaped building symbol. The Paris castle is much larger than that depicting London, which tends to indicate that Paris was the more prominent city. Containing more than a modern map the Mappa Mundi is packed with information including history, legend and stories from the bible. For example, there are: 420 cities and towns; 15 biblical events; 33 plants, animals, birds and strange creatures; 32 images of people; 8 pictures of classical mythology.
Having been drawn according to the Tripartite plan, it shows a world of three continents enclosed within a circle, with east at the top. Asia is shown at the top with Africa in the bottom right hand segment and Europe in the left hand segment. Some thought there should be a fourth continent, the Antipodes, but to suggest this was considered at the time to be heresy. Unfortunately this method of drawing placed limits on the designer, forcing them into distortions of scale and distance. At the centre of the map is Jerusalem, the City of God in the centre of the known world.
The Hereford map is thought to have originated in Lincoln and to be the work of Richard de Bello, who in 1283 was a senior churchman at Lincoln Cathedral. However, in 1305 there was a Canon Richard de Bello at Hereford Cathedral, therefore it is possible that this is the same man and explains how the map came to be in Hereford. The first recorded mention of the map in Hereford is in 1682 when it was listed as 'a map of ye world' which was found among other 'curiosities'. It was described as being kept in a frame with two doors, suggesting that it could have been used as an altar screen. In 1862 it was put on display at an international exhibition in London where it was viewed by thousands. After that it was returned and exhibited in the South Choir aisle in Hereford cathedral.
In 1990 disaster nearly struck the map. Hereford cathedral is constructed of soft sandstone that had deteriorated due to the weather and air-borne pollution. Expensive repairs were required and help was not forthcoming from the government, so it was decided by the Dean & Chapter to raise funds by selling the Mappa Mundi. This controversial decision was strongly opposed by many people. However, in 1991 a generous donation was received that not only paid for the building repairs but also the construction of a new building that would house the Map and the Chained Library (the historic library of medieval books) in a controlled environment.
At the very top of the map is the Doom, and in the centre is the son of God, Christ in Majesty, seated in the clouds, a figure with both hands raised, showing the nail marks in his hands and feet. Below him, inside the gates of Heaven is his mother Mary with attendant angels – she is pleading with him to have pity on the souls of the dead and allow them into Heaven. On Christ's left-hand side one batch of condemned sinners, having been roped together, is being dragged by a horned and winged devil towards the head of a monster with gaping jaws – this is the gateway to hell.
Ron showed detail pictures from the map of biblical events including Noah's Ark, Adam & Eve, the destruction of Sodom & Gormorrah and the passage of Moses through the Red Sea: various animals and plants and some strange creatures. One of the drawings shows two men indulging in a 'cannibal' feast, one eating a human leg and the other an arm. Around the map are strange creatures. There are people with no heads and their eyes in their chests, horse-footed men and bat-eared men. These are the monstrous races, weird fantastical, beyond belief as they appear to us, but must have meant something to those who lived in earlier times.
Ron finished by showing pictures of the Chained Library, the preserved and restored library of medieval books that can also be seen in Hereford Cathedral.
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Obituary: Jon Reed
Jonathan (Jon) Reed was born in London on 30 June 1931 and died in James Paget Hospital on 10 April 2015. He qualified as a Chartered Mechanical Engineer and worked for Pye Electric, later TASC Drives, on the design of electric motors and their control systems.
As a member of the Society’s Committee from 1980 he served in various roles including Editor of the Newsletter. He also arranged fieldwalking and many summer outings, including some by coach to places such as Colchester, Woodbridge, Sutton Hoo and Norwich. In 1995 he became Honorary Curator at the Lowestoft Museum, a position he held until he retired in 2002.
A nice man, Jon was well thought of and respected by Society members and the Museum team. He did much for the Lowestoft Archaeological and Local History Society and for the Lowestoft Museum in his various roles. In recognition of this work he was made a life member.
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Please give any items for inclusion in the Newsletters to Don Friston or Ron Ashman, at our Society meetings.
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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ILLINOIS
REGINALD STROTHER, No. 12594-078,
Petitioner, v.
D. SPROUL, Warden, FCI-Marion,
Respondent.
MEMORANDUM AND ORDER
This matter comes before the Court on petitioner Reginald Strother's petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. 1). The petitioner is incarcerated at the Federal Correctional Institute at Marion, Illinois, where respondent D. Sproul is the warden. The petitioner challenges his sentence on the grounds that the case was initiated by someone without Article III standing to bring a criminal case, so the district court did not have jurisdiction over his prosecution. However, in light of Jones v. Hendrix, 599 U.S. 465 (2023), he may not use § 2241 to collaterally attack his sentence in this way.
This matter is now before the Court for preliminary review pursuant to Rule 4 of the Federal Rules Governing Section 2254 Cases in United States District Courts. Rule 4 provides that upon preliminary consideration by a district judge, "[i]f it plainly appears from the petition and any attached exhibits that the petitioner is not entitled to relief in the district court, the judge must dismiss the petition and direct the clerk to notify the petitioner." Rule 1(b) of the Federal Rules Governing Section 2254 Cases gives this Court the authority to apply the rules to other habeas corpus cases.
The petitioner attempts to take advantage of § 2255's "savings clause" to access § 2241, but that route to relief is no longer available to him after Jones v. Hendrix. If he seeks relief
Case No. 24-cv-1932-JPG
from his criminal conviction, he must seek it under § 2255, and the Court must dismiss this § 2241 petition.
I. Background
In a prior § 2241 case, Judge David W. Dugan summarized the history of Strother's case:
On December 6, 2006, in the Eastern District of Texas, Petitioner was indicted for one count of knowingly and intentionally possessing, with the intent to distribute, more than fifty grams of a Schedule II controlled substance under 21 U.S.C. § 841(a)(1). See U.S. v. Strother, No. 6-cr-182, Doc. 16 (E.D. Tex. Dec. 6, 2006). On February 4, 2009, Petitioner was sentenced to a term of life imprisonment, supervised release of 10 years, and a $100 special assessment. See Strother, No. 6-cr-182, Doc. 199. Petitioner directly appealed the conviction, which was denied. ([No. 3:23-cv-1686-DWD,] Doc. 1, pg. 2). For purposes of 28 U.S.C. § 2255, Petitioner suggests he is not challenging the validity of his conviction or sentence as imposed. (Doc. 1, pg. 3). Petitioner has filed at least three motions to vacate, set aside, or correct his sentence under § 2255, all of which were denied. See Strother, No. 6-cr-182, Doc. 303.
Mem. & Order 2 (No. 3:23-cv-1686-DWD, Doc. 7).
In the case at bar, Strother argues that there was no Article III standing to prosecute his criminal case because it began with a criminal complaint signed by a local law enforcement officer who was not authorized to commence a federal prosecution. Only an Assistant United States Attorney, a United States Attorney, or the Attorney General has standing to commence a federal criminal prosecution on behalf of the United States. He claims he is entitled to bring this argument in a § 2241 petition because § 2255 is inadequate or ineffective to test the legality of his conviction.
Interestingly, Strother made the same argument before Judge Dugan as he does in this petition. Judge Dugan rejected Strother's attacks on his sentence, finding that Strother's prosecution was procedurally and constitutionally proper. That resolution is currently on appeal to the Court of Appeals for the Seventh Circuit in Appeal No. 24-1441.
II. Analysis
The petitioner (again) argues that the Court should overturn his sentence because the local law enforcement officer that signed the original criminal complaint did not have standing to bring a federal criminal prosecution. His collateral attack on his sentence is not cognizable in a § 2241 proceeding in light of Jones v. Hendrix, 599 U.S. 465 (2023), which held that, with few exceptions, a motion under 28 U.S.C. § 2255 is the sole method of collaterally attacking a sentence.
Generally, an inmate must bring a challenge to his sentence in a § 2255 motion in the district of his conviction. Chazen v. Marske, 938 F.3d 851, 856 (7th Cir. 2019). He is limited to one § 2255 motion and may file a second or successive motion only if he relies on "newly discovered evidence," § 2255(h)(1), or "a new rule of constitutional law," § 2255(h)(2), as his basis for relief. However, there is an exception to this rule under the "savings clause" of § 2255(e), which allows an inmate to attack his sentence in a § 2241 petition in the district of his incarceration where a § 2255 motion is "inadequate or ineffective to test the legality of his detention."
The Court of Appeals for the Seventh Circuit used to take the position that § 2255 was "inadequate or ineffective to test the legality of [an inmate's] detention" if the inmate did not have "a reasonable opportunity to obtain a reliable judicial determination of the fundamental legality of his conviction and sentence." In re Davenport, 147 F.3d 605, 609 (7th Cir. 1998). It held that this occurs where "(1) the claim relies on a statutory interpretation case, not a constitutional case, and thus could not have been invoked by a successive § 2255 motion; (2) the petitioner could not have invoked the decision in his first § 2255 motion and the decision applies retroactively; and (3) the error is grave enough to be deemed a miscarriage of justice." Beason v.
Marske, 926 F.3d 932, 935 (7th Cir. 2019). That is, the Seventh Circuit Court of Appeals allowed an inmate to collaterally attack a sentence in a § 2241 petition based on new rules of statutory law that the inmate could not have raised in his criminal proceeding or in a § 2255 motion, either because of timing or the limitation on successive petitions. This is no longer good law.
Last year, the Supreme Court held in Jones v. Hendrix, 599 U.S. 465 (2023), that § 2255 is not "inadequate or ineffective to test the legality of [an inmate's] detention" in the situations allowed by In re Davenport and many other Courts of Appeal. Id. at 477. On the contrary, it held § 2255 is only "inadequate or ineffective" to challenge a sentence in "unusual circumstances in which it is impossible or impracticable for a prisoner to seek relief from the sentencing court," such as, for example, where the court of conviction no longer exists. Id. at 474. The Court held that allowing a collateral attack in a § 2241 petitions in any other circumstance would work an end-run around § 2255(h)'s limitations on successive collateral attacks to two, and only two, circumstances—"newly discovered evidence," § 2255(h)(1), or "a new rule of constitutional law," § 2255(h)(2). Id. at 477. The Court drew a "straightforward negative inference" from this limitation—that no other successive collateral attacks on a sentence are allowed, period. Id. at 477-78.
Thus, § 2241 is not available to challenge a sentence where an inmate has already filed a § 2255 motion and is barred from filing another because his challenge does not fall within the gateway criteria of § 2255(h). As a consequence, § 2241 is not available to Strother.
III. Conclusion
For the foregoing reasons, the Court DISMISSES with prejudice Strother's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 (Doc. 1) and DIRECTS the Clerk of Court
to enter judgment accordingly and notify the petitioner.
If the petitioner wishes to appeal this decision, generally he must file a notice of appeal with this Court within 60 days of the entry of judgment. Fed. R. App. P. 4(a)(1)(B). A motion
under Federal Rule of Civil Procedure 59(e) may toll the 60-day appeal deadline. Fed. R. App.
P. 4(a)(4). A Rule 59(e) motion must be filed no more than 28 days after the entry of the judgment, and this 28-day deadline cannot be extended. Other motions, including a Rule 60
motion for relief from judgment, do not toll the deadline for an appeal.
If the petitioner files a motion for leave to appeal in forma pauperis
his motion a description of the issues he intends to present on appeal.
, he must include in
SeeFed. R. App. P.
24(a)(1)(C). If he appeals and is allowed to proceed in forma pauperis
, he will be liable for a portion of the $605.00 appellate filing fee (the amount to be determined based on his prison trust
fund account records for the past six months) irrespective of the outcome of the appeal. SeeFed.
R. App. P. 3(e); 28 U.S.C. § 1915(e)(2); Ammons v. Gerlinger, 547 F.3d 724, 725-26 (7th Cir.
2008).
It is not necessary for the petitioner to obtain a certificate of appealability from this disposition of his § 2241 petition.
Walker v. O'Brien, 216 F.3d 626, 638 (7th Cir. 2000).
IT IS SO ORDERED.
DATED: August 28, 2024
5
s/ J. Phil Gilbert
J. PHIL GILBERT
DISTRICT JUDGE
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SIST EN ISO 18135:2017 SLOVENSKI STANDARD
01-julij-2017
SIST EN 14778:2011
Biogene Festbrennstoffe - Probenahme (ISO 18135:2017)
Biocarburants solides - Échantillonnage (ISO 18135:2017) (standards.iteh.ai)
Solid Biofuels - Sampling (ISO 18135:2017)
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ICS:
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EUROPEAN STANDARD NORME EUROPÉENNE EUROPÄISCHE NORM
ICS 75.160.40
EN ISO 18135
April 2017
Supersedes EN 14778:2011
English Version
Solid Biofuels - Sampling (ISO 18135:2017)
Biocarburants solides - Échantillonnage (ISO 18135:2017)
Biogene Festbrennstoffe - Probenahme (ISO 18135:2017)
This European Standard was approved by CEN on 6 March 2017.
CEN members are bound to comply with the CEN/CENELEC Internal Regulations which stipulate the conditions for giving this European Standard the status of a national standard without any alteration. Up-to-date lists and bibliographical references concerning such national standards may be obtained on application to the CEN-CENELEC Management Centre or to any CEN member.
This European Standard exists in three official versions (English, French, German). A version in any other language made by translation under the responsibility of a CEN member into its own language and notified to the CEN-CENELEC Management Centre has the same status as the official versions.
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European foreword
This European Standard shall be given the status of a national standard, either by publication of an identical text or by endorsement, at the latest by October 2017 and conflicting national standards shall be withdrawn at the latest by October 2017.
This document (EN ISO 18135:2017) has been prepared by Technical Committee ISO/TC 238 "Solid biofuels" in collaboration with Technical Committee CEN/TC 335 "Solid biofuels" the secretariat of which is held by SIS.
Attention is drawn to the possibility that some of the elements of this document may be the subject of patent rights. CEN [and/or CENELEC] shall not be held responsible for identifying any or all such patent rights. This document supersedes EN 14778:2011.
According to the CEN-CENELEC Internal Regulations, the national standards organizations of the following countries are bound to implement this European Standard: Austria, Belgium, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, Former Yugoslav Republic of Macedonia, France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Latvia, Lithuania, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, Romania, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Turkey and the United Kingdom. iTeh STANDARD PREVIEW (standards.iteh.ai) SIST EN ISO 18135:2017
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INTERNATIONAL STANDARD SIST EN ISO 18135:2017
Solid Biofuels — Sampling
Biocarburants solides — Échantillonnage
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ISO 18135
First edition 2017-04
©
ISO 2017
ISO 18135:2017(E)
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Contents
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12.3 Methods for sampling moving material
ISO 18135:2017(E)
...................................................................................................................................................................................
12.3.1 General
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Foreword
The procedures used to develop this document and those intended for its further maintenance are described in the ISO/IEC Directives, Part 1. In particular, the different approval criteria needed for the different types of ISO documents should be noted. This document was drafted in accordance with the editorial rules of the ISO/IEC Directives, Part 2 (see www.iso.org/directives).
ISO (the International Organization for Standardization) is a worldwide federation of national standards bodies (ISO member bodies). The work of preparing International Standards is normally carried out through ISO technical committees. Each member body interested in a subject for which a technical committee has been established has the right to be represented on that committee. International organizations, governmental and non-governmental, in liaison with ISO, also take part in the work. ISO collaborates closely with the International Electrotechnical Commission (IEC) on all matters of electrotechnical standardization.
Attention is drawn to the possibility that some of the elements of this document may be the subject of patent rights. ISO shall not be held responsible for identifying any or all such patent rights. Details of any patent rights identified during the development of the document will be in the Introduction and/or on the ISO list of patent declarations received (see www.iso.org/patents).
Any trade name used in this document is information given for the convenience of users and does not constitute an endorsement.
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For an explanation on the voluntary nature of the standards, the meaning of ISO specific terms and expressions related to conformity assessment, as well as information about ISO's adherence to the World Trade Organization (WTO) principles in the Technical Barriers to Trade (TBT) see the following URL: www.iso.org/iso/foreword.html . This document was prepared by Technical committee ISO/TC 238, Solid biofuels . iTeh STANDARD PREVIEW (standards.iteh.ai) SIST EN ISO 18135:2017
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ISO 18135:2017(E)
Introduction
This document is made for all stakeholders. Solid biomass is defined in ISO 16559 and according to the specification in ISO 17225-1 covers organic, non-fossil material of biological origin which may be used as fuel for heat and electrical generation. This document was developed with significant content from EN 14778:2011.
The objective of this document is to provide unambiguous and clear principles for sampling solid biofuels. It also aims to serve as a tool to enable efficient trading of biofuels and a good understanding between seller and buyer, as well as a tool for communication with equipment manufacturers. It will also facilitate authority permission procedures and reporting.
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Solid Biofuels — Sampling
1 Scope This document describes methods for preparing sampling plans and certificates, as well as taking samples of solid biofuels, for example, from the place where the raw materials grow, from production plant, from deliveries, e.g. lorry loads, or from stock. It includes both manual and mechanical methods, and is applicable to solid biofuels that are either:
— fine (particle sizes up to about 10 mm) and regularly shaped particulate materials that can be sampled using a scoop or pipe, for example, sawdust, olive stones and wood pellets;
— large pieces (particle sizes above 200 mm) that are either picked manually or automatically; — vegetable waste, fibrous waste from virgin pulp production and from production of paper from pulp that has been dewatered; — thermally treated and densified biomass materials; — roundwood. iTeh STANDARD PREVIEW (standards.iteh.ai)
— coarse or irregularly shaped particulate materials (particle sizes up to about 200 mm) that can be sampled using a fork or shovel, for example, wood chips and nut shells, forest residue chips, and straw; — baled materials, for example, baled straw or grass;
This document is not applicable to airborne dust from solid biofuels. It may be possible to use this document for other solid biofuels. SIST EN ISO 18135:2017 https://standards.iteh.ai/catalog/standards/sist/a4d55622-6a69-499c-b262-
2 Normative references The following documents are referred to in the text in such a way that some or all of their content constitutes requirements of this document. For dated references, only the edition cited applies. For undated references, the latest edition of the referenced document (including any amendments) applies. ISO 13909-8, Hard coal and coke — Mechanical sampling — Part 8: Methods of testing for bias Solid biofuels — Sample preparation
The methods described in this document may be used, for example, when the samples are to be tested for moisture content, ash content, calorific value, bulk density, durability, particle size distribution, ash melting behaviour and chemical composition. d834f38077d4/sist-en-iso-18135-2017
ISO 14780,
Solid biofuels — Terminology, definitions and descriptions
Hard coal and coke — Guidance to the inspection of mechanical sampling systems
ISO 16559,
3 Terms and definitions For the purposes of this document, the terms and definitions given in ISO 16559 and the following apply. ISO and IEC maintain terminological databases for use in standardization at the following addresses: — IEC Electropedia: available at http://www.electropedia.org/
ISO 21398,
— ISO Online browsing platform: available at
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1
ISO 18135:2017(E)
3.1 bias systematic error that leads to the average value of a series of results being persistently higher or persistently lower than those that are obtained using a reference sampling method 3.2
Note 1 to entry: For pellets the diameter is used to determine the nominal top size. Note 2 to entry: Includes additional information not found in ISO 16559. 3.4 overall precision closeness of agreement between independent test results obtained under stipulated conditions; including sample preparation and sample analysis large stockpile stockpile with a capacity >40 t 3.3 nominal top size aperture size of the sieve through which at least 95 % by mass of the material passes
Note 1 to entry: A determination might be made with great precision and the standard deviation of a number of determinations on the same sub-lot might, therefore, be low; but such results are accurate only if they are free from bias. iTeh STANDARD PREVIEW
4 Symbols
i
d
95
nominal top size biofuel, in mm
d
i
difference between individual pair members
m
lot
mass of the lot or sub-lot, tonne
n
number of increments per (sub-) lot minimum number of increments per (sub-) lot number of pairs (for estimating VPT)
n
min
nPn mp N L , N SL
maximum practicable number of increments per sub-lot
number of lots/sub-lots overall precision for the sampling, sample preparation and testing for the whole biofuel lot at 95 % confidence level similar to PL but then for the sub-lot
PL
P
SL
S
sample estimate of the population standard deviation
V Vol
SPT
total variance of the results for replicate samples volume for the combined sample, l
Combined Sample
Volincr
volume of an increment, l
Vol V
min
minimum volume of increment, l
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primary increment variance
2
© ISO 2017 – All rights reserved
VPT W
preparation and testing variance
X
5 Principle The main principle of correct sampling is to obtain a representative sample (samples) from the whole lot concerned. Every particle in the lot or sub-lot to be represented by the sample should have an equal probability of being included in the sample. In order to do so, a sampling plan is needed. Figure 1 shows the actions needed for the development of a sampling plan. When sampling is to be carried out according to the same plan repeatedly or continuously (e.g. daily), a full sampling plan shall be prepared according to 6.2 (it is necessary to do this only once). A brief sampling plan shall be prepared for routine use according to 6.3 (same type of sampling object or situation occasionally). In the case of a new material or supplier, the existing plan shall be checked and updated or a new full sampling plan shall be developed.
width of a sampling tool, mm value of the analyzed parameter
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Micropropagation of Sweet Cherry Dwarf Rootstock (PHL-C)
Zohreh hoshyar 1 , Ebrahim Ganji moghadam 2 , Bahram Abedi 1 , Gholamhosein Davari nejad 1
ABSTRACT
PHL-C is one of dwarf sweet cherry rootstocks which is a hybrid between Prunus.avium L. × Prunus.cerasus L. and is recommended for high density plantation of the commercial orchards. In this study the effect of different media types and plant growth regulators for proliferation and rooting of PHL-C rootstock were investigated in Khorasan Razavi Agriculture and Natural Resources Research and Education Center. For proliferation, three culture media (MS, DKW, WPM) and four concentrations of BAP (0.0, 1.0, 1.5, 2.0 mgL -1 ) were experimented. Also, effects of six culture media (solid and double phase of MS, DKW, WPM) supplemented with four concentrations of IBA (0, 1, 1.5 and 2 mgL -1 ) on rooting were investigated. Results showed that, the highest shoot multiplication rate was observed in MS + 1 BAP mgL -1 , while the highest quality (strong and vigorous Explants, with no signs of vitrification, necrosis, yellow apex and leaves ) of plantlet was observed in DKW medium. Moreover, MS media supplemented with either 1.5 or 2 mgL -1 IBA proved to be superior to other treatments in terms of root number and length.
Keywords: Double phase medium; micropropagation; Proliferation; Rooting.
INTRODUCTION
Iran is one of the largest producers of sweet cherry in world after turkey and United States (FAO, 2012). The conventional rootstocks like Mazzard (Prunus avium L.) and Mahlab (Prunus. Mahlab L.) are used as rootstock for sweet cherry in Iran. Due to the basic role in growth rate and resistance to disease; selection of rootstock plays an important role in the management of orchard. Since 1963, experiments on the dwarf cherry trees rootstocks were conducted in the Research and Breeding Institute of
1Department of Horticultural Science, Faculty of Agriculture, Ferdowsi University, Mashhad, IRAN
2Department of Horticultural Science, Khorasan Razavi Agriculture and Natural Resources Research & Education Center, Mashhad, IRAN
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Pomology Holovousy Ltd. In Czech Republic. Among the plants grown from the seeds of cherry trees, three clones the numbers 6, 84 and 224 were selected from six clones in numbers 6, 4, 5, 84, 103 and 224. There were named PHL-A, PHL-B and PHL-C rootstocks, respectively (Erbenova et al, 2001). PHL series are dwarf rootstock resulted from a cross between P. avium L. and P.cerasus L. PHL-C rootstock is compatible with a variety of cherries and might result in 80% growth reduction in trees compared to PHL-A and PHL-B as they reduce growth by 70% and 50%( Erbenova et al, 2001). It is tolerant to waterlogging, calcareous soils, pseudomonas syringae, and agrobacterium and recommended to be used for high density cultivation (Sulusoglu and Cavusoglu, 2013). Direct rooting of sweet cherry rootstocks is difficult which can be solved by using in vitro propagation.
Received on 4/4/2016 and Accepted for Publication on 16/6/2016.
Moghaddam et al (2013) reported that, MS 1 medium containing 1.2 mgL -1 BAP was best for proliferation while 1/2 MS contains 1 mgL -1 IBA was suitable for rooting of Gisela 6. Mahdavian et al (2011) reported full rooting rate was obtained in DKW medium without growth regulator in PHL-A rootstock. In proliferation stage, shoot multiplication rate of (5.37 microshoots/ explant) was achieved in hormone free MS medium. In a study about the effect of different culture media and growth regulators on proliferation and rooting of St. Lucie rootstock 64, Mahdavian et al (2011) reported that DKW medium without hormone was the best medium for Rooting of shoots, with up to 100 percent efficiency. Erbenova et al (2001) reported that 1.5 mgL -1 BAP in MS medium was the optimum concentration for multiplication. Hussain et al (2003) in micropropagation of plum reported that MS medium containing 0.5 mgL -1 BA+ 0.2 mgL -1 NAA was the best treatment for proliferation phase, and 1/2 MS medium supplemented with 1 mgL -1 IBA showed to be the best medium for rooting stage. We studied micropropagation of PHL-C dwarfing rootstock. The objective of this work was to investigate the effects of different culture media and growth regulators on shoot proliferation and rooting of a dwarfing cherry rootstock.
2. Materials and Methods
2.1 Shoot proliferation
The axillary bud were taken from one years old tree of PHL-C rootstock maintained in the experimental garden of Khorasan Razavi Natural Resource and Agricultural Research Center. Nodal segments, 1-1.5 cm in length, without leaves were then excised from the shoots.
The explants were washed by water and dishwashing
1 Murashige and Skoog
liquid to removed surface contamination. Then they were divided to some parts containing one bud and were pre sterilized by immersion in 70% ethanol for 60 sec followed by a rinse with sterile distilled water. These presterilized explants were then exposed to 0.1% and 0.2% mercuric chloride for 1 and 2 minutes. After being sterilized by ethanol and mercuric chloride, explants were washed 3 times with sterile distilled water and then culture in medium. Three media (MS, DKW and WPM 2 ) were used in presence of BAP and IBA plant growth regulators (Table 1). In proliferation stage, different concentrations of BAP (0.0, 1.0, 1.5 and 2.0 mgL -1 ) were added to the mentioned media. After three subcultures, number and length of shoots were measured. Number of shoots after three subculture was compared with number of shoots at first for proliferation rate. After three subcultures(21 days between each subculture), number and length of shoots were measured. Number of shoots after three subculture intervals was compared with number of shoots at first for proliferation rate.
2.2 Rooting
To determine the best rooting medium, after removal of lower leaves, suitable shoots from elongation phase transferred to solid and double-phase medium(Liquid medium and perlite). containing IBA at four levels (0, 1, 1.5 and 2 mgL -1 ). All media were supplemented with 6.7 gL -1 agar and 30 gL -1 sucrose. In all media, pH was adjusted to 5.7 before autoclaving. The cultures were grown under 16-h photoperiod and 23±1º. After 6 weeks, number and length of root, rooting percent, leaf number and stem length were measured.
2 Woody plant medium
2.3 Acclimation
For acclimation, rooted shoots washed in tap water for traces of agar and planted in pots filled with cocopeat and perlite and put in moist chamber in greenhouse with 70% humidityAll media were supplemented with 6.7 gL -1 agar and 30 gL -1 sucrose. In all media, pH was adjusted to 5.7 before autoclaving. The cultures were grown under 16-h photoperiod and 23±1º
2.4 Experimental design
A factorial experiment was laid out in a completely randomized design with three replications and each consisted of three explants that repeated 3 times. Collected data were analyzed statistically by jmp8 software and significant differences among treatment means were compared by Tukey test at P < 0.05.
3. Result
3.1 Proliferation phase:
Infection rate for initial deployment explants about 4% for the next subculture were less than 1% .To determine the best medium, different medium and growth regulators for proliferation were used. At the end of the fourth week, the number and height of explants were recorded. There was significant difference (P< 0.05) in multiplication rate between media and BAP concentrations. Results showed that the highest proliferation rate, 6.20 micro-shoots, was observed in MS medium enriched with 1 mgL -1 BAP (Figure 1). Positive effect of BAP on proliferation of Gisela 6 and Gf rootstock was reported by daneshvar hoseini et al (2010) and nazary moghaddam and yadollahi(2011). Moreover, shoot branching was always reported to be controlled hormonally mainly by cytokinin (Dobránszki, and Silva, 2010), by way of initiation and activity of auxiliary meristems which results in shoot formation, but influence of cytokinin can be differed based on the kind of culture, variety of plant and age of explants (Thorpe et al, 2008).
Medium without growth regulator had the lowest number of shoot. There were significant differences (P< 0.01) in shoot length between media and different concentrations of BAP. The longest shoots were observed in the DKW medium. The best plantlet in terms of quality was observed in DKW medium and least at concentration of 2 mgL -1 BAP, which may be due rosette growth and large number of branches (results are not shown). The function of the BAP is breaking the apical dominance and stimulate growth of new shoots. The longest stem and leaf growth in proliferation stage observed in control treatment which can be explained in this way that all plantlets rooted in proliferation phase before being transferred to rooting phase. Optimal BAP concentration in proliferation stage was 1 mgL -1 (Figure 3-A). The results in our study were similar to those reported by Ruzic and Vajovic(2013) and Movsiuw(2011) who showed that MS medium with 1 mgL -1 of BAP had highest number of shoot in Myrobelan rootstock multiplication. So, it can be concluded that higher concentrations of BAP reduced shoot number, therefore, lower concentrations are recommended to reduce the adverse effects of high BAP concentrations.
3.2 rooting
Rooting percentage was 100% in most treatments. The lowest percentage of rooting was observed in control without IBA. Regarding root number, there was significant difference (P< 0.05) between media and IBA concentrations. The highest root number was observed in MS medium containing 1.5 mgL -1 IBA with an average of 14/62 roots (Figure 2 and 3-B). Reults reported by Hossain et al (2003) indicated that, highest root number is obtained by using of 1.5 mgL -1 IBA. Plantlets grown in MS medium with 2 mgL -1 IBA had the longest roots with average length of 4.75 cm. The minimum root length, on average 1.67 cm, was observed in MS double-phase
of Sweet… Zohreh hoshyar et al medium containing 2 mgL -1 IBA (Table 2). Maximum shoot elongation was observed in MS+ 1 mgL -1 IBA with the average of 4.64 cm. DKW medium without hormone resulted in minimum elongation data of the shoot . The ability of plant tissues to form adventitious roots depends on the interaction of many exogenous and endogenous factors such as hormone, elements and type of culture medium (Frankel and Hess, 1973) and roots formation in vitro can be induced by exogenous auxins such as IBA, NAA and IAA. Another related study showed that, IBA had a better effect on rooting compared to IAA. In our study, the aim was to study the effect of different concentrations of IBA on rooting phase. IBA at different concentrations improved rooting but the best results were obtained at the concentration of 1.5 mgL -1 . This hormone is more stable and less sensitive to reducing auxin enzymes (Riov, 1993). Different media have different effects on rooting stage. In this study, root number and length in MS medium were higher than other media. Putting roots in the dark increased rooting. Root formation in double -phase media was obtained earlier than other media types which can be explained by low concentration of agar, which provides adequate contact between plant tissue and medium (suthar et al ., 2010). In our study, survival percentage of plantlets, 100% in most treatments, was higher than previous many other studies (Mahdavian et al., 2011; Daneshvar Hossini et al., 2010; and Sulusoglu and Cavusoglu, 2013) who conducted in vitro rooting experiments on prunus rootstocks.
3.3 Acclimatization
Plantlets with better quality were more successful in acclimatization. For survival rate, there was no difference between plantlets rooted in liquid media and those rooted in agar-gelled media. Roots from double-phase medium were not injured during transplantation. The lowest survival rate was 71% in double-phase WPM medium. In general, survival percentage in most treatments was 100%. Acclimatization was affected by rooting treatment and Leaf development. Plantlets with longer roots were more successful than plantlets with short roots. Plantlets from liquid media produced more lateral roots and root hair compared to agar-gelled media, therefore they showed good performance in acclimatization phase (Figure 3-C) but there was no significant difference between agar and double-phased media.5. Conclusion
The results of this study indicate that MS medium with BAP at concentration of 1 mgL -1 had about the highest number of shoots in proliferation phase with 6.20 micro shoot . In rooting stage, MS medium with 1.5 mgL 1 IBA had average 14.62 roots. application of the doublephase media, composed of liquid medium with perlite, instead of commonly used agar-gelled medium gave better support for the root formation and resulted in better compatibility.
4. Acknowledgment
I have to thank all who helped me in my laboratory experiments, in particular the personnel of Husbandry and Biotechnology Department of Khorasan Razavi Natural Resource and Agricultural Research Center.
Table1. Media used for shoot proliferation and rooting
| Composition | MS | WPM | DKW |
|---|---|---|---|
| NH4NO3 | 1650 | 400 | 1416 |
| KNO3 | 1900 | - | - |
| CA(NO3)2.4H2O | - | 556 | 1367.41 |
| CaCL2.2H2O | 440 | 96 | 149 |
| K2SO4 | - | 990 | 1559 |
| MgSO4.7H2O | 370 | 370 | 361.38 |
| KH2PO4 | 170 | 170 | 265 |
| MnSO4.4H2O | 22.3 | 370 | - |
| MgSo4.H2O | - | - | 33.5 |
| Na2MoO4.2H2O | 0.25 | 0.25 | 0.39 |
| ZnSO4.7H2O | 8.6 | 8.6 | - |
| Zn(NO3)2.6H2O | - | - | 17 |
| KI | 0.83 | - | - |
| H3BO3 | 6.2 | 6.2 | 4.8 |
| CuSO4.5H2O | 0.025 | 0.25 | 0.25 |
| CoCL.6H2O | 0.025 | - | - |
| FeSO4.7H2O | 27.8 | 27.8 | 33.8 |
| Na2EDTA.2H2O | 37.3 | 37.3 | 45.4 |
| Myo-inositol | 100 | 100 | 100 |
| Thiamino-HCL | 0.1 | 1 | 2 |
| Nicotinic acid | 0.5 | 0.5 | 1 |
| Pyridoxine-HCL | 0.5 | 0.5 | - |
| Glicine | 2 | 2 | 2 |
Table 2. Comparison of various culture media' effects on growth rooted plantlets
| Medium | IBA (mgL-1) | Rooting | Leaf number | Shoot length(cm) | Root length (cm) | Survival rate |
|---|---|---|---|---|---|---|
| | 0 | 65.5 ±0.5 | 7.8 c-f | 2.41 d-g | 3.43 bc | 85±0.2 |
| | 1 | 99± 0.5 | 10.53 a-d | 4.64 a | 3.40 bcd | 97±0.2 |
| MS | 1.5 | 99± 0.5 | 10.12 a-d | 3.62 a-e | 4.37 ab | 99±0.2 |
| | 2 | 100± 0.5 | 11.75 ab | 3.37 a-e | 4.75 a | 100 ±0.2 |
| | 0 | 76 ± 0.5 | 8.08 b-f | 3.25 b-f | 2.29 e-i | 89±0.2 |
| WPM | 1 | 99 ± 0.5 | 8.76 a-f | 3.66 a-d | 2.5 c-i | 100 ±0.2 |
| | 1.5 | 93± 0.5 | 11.81 ab | 3.55 a-e | 3.45 bc | 91±0.2 |
| | 2 | 93± 0.5 | 12.16 a | 3.91 abc | 3.24 cde | 85±0.2 |
| | 0 | 92 ± 0.5 | 7.68 c-f | 1.8 g | 2.61 c-i | 100 ±0.2 |
of Sweet… Zohreh hoshyar et al
| Medium | IBA (mgL-1) | Rooting | Leaf number | Shoot length(cm) | Root length (cm) | Survival rate |
|---|---|---|---|---|---|---|
| | 1.5 | 100 ± 0.5 | 11.28 abc | 3.34 b-e | 2.78 c-h | 100 ±0.2 |
| | 2 | 66 ± 0.5 | 8.36 a-f | 2.87 b-g | 3.07 c-f | 100±0.2 |
| | 0 | 75± 0.5 | 6.02 f | 2 fg | 2.37 d-i | 100 ±0.2 |
| | 1 | 75 ± 0.5 | 8.45 a-f | 2.68 c-g | 2.62 c-i | 99 ±0.2 |
| Double phase MS | 1.5 | 66 ± 0.5 | 6.26 ef | 2.37 efg | 1.9 hi | 100±0.2 |
| | 2 | 75± 0.5 | 7.35 def | 2.37 efg | 1.67 i | 100±0.2 |
| | 0 | 92 ± 0.5 | 8.75 a-f | 2.41 d-g | 3.18 cde | 81±0.2 |
| | 1 | 51± 0.5 | 8.66 a-f | 2.62 d-g | 3.28 cde | 71 ±0.2 |
| Double phase WPM | 1.5 | 80 ± 0.5 | 9.10 a-f | 4 ab | 2.79 c-h | 73±0.2 |
| | 2 | 58± 0.5 | 7.75 c-f | 3.32 b-e | 3.07 c-f | 100±0.2 |
| | 0 | 92± 0.5 | 8.5 a-f | 3.3 b-e | 2.12 f-i | 81 ±0.2 |
| | 1 | 100± 0.5 | 10.1 a-e | 3.97 ab | 3 c-g | 81±0.2 |
| Double phase DKW | 1.5 | 92 ± 0.5 | 8.62 a-f | 3.22 b-f | 1.97 ghi | 80 ±0.2 |
| | 2 | 92± 0.5 | 9.75 a-f | 3.25 b-f | 2.42 c-i | 100±0.2 |
Values in the same column with different lower-case letters are significantly different at P<0.01.
Fig 1. Effect of BAP on shoot proliferation of PHL-C rootstock
media
Fig 2. Effect of IBA on number of roots in PHL-C rootstock
n of Sweet… Zohreh hoshyar et al
REFERENCES
Daneshvar Hossini, A.; Ganji Moghadam, E.; and Anahid, S, 2010, Effects of Media Cultures and Plant Growth Regulators in Micro Propagation of Gisela 6 Rootstock, Annals of Biological Research, V.1:135-141.
Dobránszki, J.; and Teixeira da Silva, J. A, 2010, Micropropagation of apple – A review. Biotechnology Advances., NO.4, pp.62-488. Doi: 10.1016/ j. biotechadv. 2010.02.008
Erbenová, M.; Paprstein, F.; and Sedlák, J, 2001, In vitro Propagation of dwarfed rootstock For Sweet Cherry. Acta Horticulturae, NO.60, pp. 477-480. Doi:10.17660/ActaHortic.2001.560.95
Frankel, C.; and Hess, C, E, 1973, Isozymic changes in relation to root initiation in mung bean. Journal Botany, NO.2,pp. 295-297. Doi: 10.1139/b74-038.
Hossain, S. N.; Munshi, M. R.; and Islam, M.R, 2003, In vitro propagation of plum (Zyziphus jujube lam). Plant tissue culture, NO.1,pp. 81-84.
Mahdavian, M.; Bouzari, N.; Abdollahi, H, 2011, Effects of media and plant growth regulators on micropropagation of a dwarfing cherry rootstock (PHL-A). Biharean Biologist. NO.2,pp. 86-90.
Movsiuw, A, 2011, In vitro propagation of virus-free Myrobalan 29C rootstock. Agriculture, V.73 NO.49,pp.101-102Nazary Moghaddam Aghaye, R, 2012, Micropropagation of GF 677 Rootstock. Journal of Agricultural Science, NO. 5,pp. 132-138.
Nazary Moghaddam Aghaye, R.; Yadollahi, A.; Moeini, A.; Sepahvand, S, 2013, In vitro Culture of Gisela 6 Semidwarf Rootstock. Journal Biology Envirement Science. NO.2o,pp. 57-64.
Pruski, K.; T. Astatkie and J, Nowak, 2005, Tissue culture propagation of mongolian cherry (Prunus fruticosa) and Nanking cherry (Prunus tomantosa). Plant Cell, Tissue and Organ Culture, NO.2, pp.207-211. Doi: 10.1007/978-1-4020-6352-7_36
Riov, J, 1993, Endogenous and exogenous auxin conjugates in rooting of cuttings. Acta Horticulturae, NO.329, pp.284-288. Doi: 10.17660/ActaHortic.1993.329.67.
Ruzic, D.V.; and Vajovic, T.I, 2013,The effect of cytoknins types and their concentration on in vitromultiplication of sweet cherry. Horticulture science, NO. 35,pp. 12-21.
Sarropoulou, V.; Dimassi-Theriou, K.; Therios, I., Koukourikou-Petridou, M, 2012, Melatonin enhances root regeneration, photosynthetic pigments, biomass, total carbohydrates and proline content in the cherry rootstock PHL-C (Prunus avium _ Prunus cerasus). Plant Physiology and Biochemistry,NO. 61, pp.162-168. Doi: 10.1016/j.plaphy.2012.10.001.
Sulusoglu, M.; and Cavusoglu, A, 2013, Micropropagation of cherry laurel Prunus laurocerasus L. Journal of Food, Agriculture & Environment, NO. 1,pp.576-579.
suthar, R, K.; Habibi, N.; Purohit, S, D, 2010, Influence of agar concentration and liquid medium on in vitro propagation of boswellia serrata roxb. Indian journal of biotechnology, NO.10,pp. 224-227.
Thorpe, T,; Stasolla, C.; Yeung E,C.; de Klerk G,J.; Roberts, A.; and George, E, F, 2008, The Components of Plant Tissue Culture Media II: Organic Additions, Osmotic and pH Effects, and Support Systems. Plant Propagation by Tissue Culture, NO.1, pp.115173.Doi:10.1007/978-1-4020-5005-3_4
إﻛﺛﺎر اﻷﺻوﻝ اﻟﻣﻘﺎوﻣﺔ اﻟﻣﻘزﻣﺔ ﻣن اﻟﻛرز اﻟﺣﻠو (PHL-C)
زﻫرة ﻫوﺷﻳﺎر 1 ، إﺑراﻫﻳم ﺟﺎﻧﺟﻲ ﻣوﻏﺎدام 2 ، ﺑﻬرام ﻋﺎﺑدي 1 ، ﻏوﻻ ﻣﻬوﺳﻳن ﻧﺟﺎدي 1
ﻣﻠﺧـص
ﺑﻳن ﻫو واﺣد ﻣن اﻷﺻوﻝ اﻟﻣﻘﺎوﻣﺔ اﻟﻣﻘزﻣﺔ ﻟﻠﻛرز اﻟﺣﻠو واﻟذي ﻳﻌد ﻫﺟﻳن ﻣﺎ ( PHL-C)runus cerasus L. و Prunus avium L. وﻳﻧﺻﺢ ﺑﻪ ﻟزراﻋﺔ ﻋﺎﻟﻳﺔ اﻟﻛﺛﺎﻓﺔ ﻣن اﻟﺑﺳﺎﺗﻳن اﻟﺗﺟﺎرﻳﺔ. وﻓﻲ ﻫذﻩ اﻟدراﺳﺔ ، ﺗم اﺧﺗﺑﺎر ﺗﺄﺛﻳر أﻧواع ﻣﺧﺗﻠﻔﺔ ﻣن وﺳﺎﺋط وﻣﻧظﻣﺎت اﻟﻧﻣو اﻟﻧﺑﺎﺗﻳﺔ ﻻﻧﺗﺷﺎر وﺗﺟذﻳر ﻫذا اﻷﺻﻝ اﻟﻣﻘﺎوم ﻓﻲ ﻣرﻛز ﺧراﺳﺎن رﺿوي ﻟﻠﺑﺣوث اﻟزراﻋﻳﺔ واﻟﻣ وارد اﻟطﺑﻳﻌﻳﺔ. ﻟدراﺳﺔ اﻻﻧﺗﺷﺎر، ﻗد ﺟرﺑت ﺛﻼث وﺳﺎﺋط ﻧﻣو (MS,DKW, WPM) ﻣﺧﺗﻠﻔﺔ BAP وأرﺑﻌﺔ ﺗراﻛﻳز ﻣﺧﺗﻠﻔﺔ ﻣن (0.0, 1.0, 1.5, 2.0 mg/L). . وﻗد ﺗﻣت أﻳﺿﺎً دراﺳﺔ آﺛﺎر اﺳﺗﺧدام ﺳﺗﺔ وﺳﺎﺋط ﻧﻣو ﻣﺧﺗﻠﻔﺔ (Solid and double phase of MS, DKW, WMP) .ﻋﻠﻰ ﻋﻣﻠﻳﺔ اﻟﺗﺟذﻳر (0, 1, 1.5 and 2.0 mg/L) IBA ﻣﻊ أرﺑﻌﺔ ﺗراﻛﻳز ﻣن وﻗد أظﻬرت اﻟﻧﺗﺎﺋﺞ أن أﻋﻠﻰ ﻣﻌدﻝ ﻟﺗﻛﺎﺛر اﻟﻧﻣو اﻟﺧﺿري ﻗد ﻟوﺣظ ﻋﻧد اﺳﺗﺧدام ، (MS+ 1BAP mg/L) ﻓﻲ ﺣﻳن أن أﻋﻠﻰ ﻣﺳﺗوى ﻣن اﻟﺟودة ﻣن ﺣﻳث اﻧﺗﺎج ﻧﺑﺎﺗﺎت ﻗوﻳﺔ وﻧﺷطﺔ ﻣﻊ ﻋدم وﺟود ﻋﻼﻣﺎت ﻧﺧر وﻗﻣﺔ وأوراق ﺻﻔراء (.DKW ﻗد ﻟوﺣظ ﻋﻧد اﺳﺗﺧدام وﺳط)ﻋﻼوة ﻋﻠﻰ ذﻟك ، ﻓﻘد أﺛﺑﺗت اﻟدراﺳﺔ ﺗﻔوق وﺳط (mg/L) 1.5 أو 2 ﻣزوداً ب (MS) ﻋﻠﻰ ﻏﻳرﻩ ﻣن اﻟﻣﻌﺎﻣﻼت ﻣن ﺣﻳث ﻋدد وطوﻝ اﻟﺟذور.
اﻟﻛﻠﻣﺎت اﻟداﻟﺔ : وﺳط اﻟﻧﻣو اﻟﻣزدوج، اﻻﻛﺛﺎر اﻟدﻗﻳق، اﻻﻧﺗﺷﺎر، اﻟﺗﺟذﻳر .
1 .ﻗﺳم ﻋﻠم اﻟﻣﺣﺎﺻﻳﻝ، ﺟﺎﻣﻌﺔ ﻓﻳردوﺳﻲ، اﻳران
2 .ﻗﺳم ﻋﻠم اﻟﻣﺣﺎﺻﻳﻝ، ﻣرﻛز ﺧوراﺳﺎن ﻟﻠﺑﺣوث اﻟزراﻋﻳﺔ واﻟﻣوارد اﻟطﺑﻳﻌﻳﺔ، اﻳران
ﺗﺎرﻳﺦ اﺳﺗﻼم اﻟﺑﺣث 4/4/ 2016 وﺗﺎرﻳﺦ ﻗﺑوﻟﻪ 19 /6/ 2016 .
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Timeline
Event 8.1
UCL Space Week 2021
Monday 8 th November 2021 13:15 – 17:45 Gustav Tuck
Looking ahead
| 13:15 – 13:20 13:20 – 13:25 | Opening Introduction | Prof David Price Prof Alan Smith | Vice Provost Research, Innovation and Global Engagement Director, Space Domain |
|---|---|---|---|
| 13:25 – 13:55 | Invited Speaker | Prof Pascale Ehrenfreund | President International Space University, President IAF |
| 13:55- 15:40 13:55 – 14:10 14:10 – 14:25 14:25 – 14:40 14:40 – 14:55 14:55 – 15:10 15:10 – 15:20 15:20 – 15:30 15:30 – 15:45 | Session 8.1.1 UK Space Agency International Space Policy European Space Agency UCL Space Domain Enterprise at UCL Satellite App. Catapult UCL Students Q & A | Chair: Prof Alan Smith Claire Barcham Prof Serge Plattard Dr Joseph Aschbacher Prof Alan Smith Prof David Price Lucy Edge Estelle Janin | Director UCL Space Domain UKSA Strategic Director Deputy Director, UCL SD ESA Director General (recorded message) Director UCL SD Vice Provost, RIGE Satellite Application Catapult Chief Operating Officer President UCL Space Society |
| 15:45 – 15:55 | Coffee/tea | | |
| 15:55 – 17:45 15:55 – 16:15 16:15 – 16:30 16:30 – 16:45 16:45 – 17:00 17:00 – 17:15 17:15 – 17:30 17:30 – 17:45 | Session 8.1.2 Royal Astronomical Society GAIA Euclid Solar Orbiter SMILE COSS Q & A | Chair: Prof Serge Plattard Prof Emma Bunce Prof Mark Cropper Prof Tom Kitchin Prof Chris Owen Prof Graziella Branduardi- Raymont Dr David Jeevendrampillai | Deputy director SD/UCL President Royal Astronomical Society Mullard Space Science Laboratory/UCL MSSL/UCL MSSL/UCL MSSL/UCL Anthropology/UCL |
| 17:45 – 18:30 | Drinks reception | | |
Monday 8 th November 2021 18:30 – 20:00
The Artistry of Dan Curry
Dan Curry & Ben Robinson with Rachal Hill Gustav Tuck Public Lecture
| 18:00 | | |
|---|---|---|
| 18:30 – 18:35 | Introductions | Dr David Jeevendrampillai |
| 18:35 – 19:30 | Interview | Dan Curry (on-line) Ben Robinson Rachal Hill (Host) |
| 19:30 – 20:00 | Q&A | |
| 20:00 – 21:00 | | |
Tuesday 9 th November 2021 10:00 – 13:00
The Robotic Exploration of the Solar System
Chair: Professor Andrew Coates, UCL
Deputy Chair: Professor Alan Smith
Anatomy G29 JZ Young Lecture Theatre
| 09:30 – 10:00 | | |
|---|---|---|
| 10:00 – 11:45 10:00 – 10:30 10:30 – 11:00 11:00 – 11:30 | Session 9.1.1 To be announced ExoMars Comet Interceptor | Dr Lewis Dartnell Prof Andrew Coates Prof Geraint Jones |
| 11:30 – 11:45 | | |
| 11:45 – 13:00 11:45 – 12:05 12:05 – 12:20 12:20 – 12:35 12:35 – 13:00 | Session 9.1.2 The abiotic carbon cycle in soils from the lifeless surface of Oceanus Procellarum, Chang’e 5 sample return landing site Titan negative ions Seeing Jupiter in a New Light The lunar surface as a recorder of astrophysical processes | Prof Dominic Papineau Dr Annie Wellbrock Affelia Wibisono Prof Ian Crawford |
th November 2021
Tuesday 9 14:00 – 17:00
Humans in Space
Chair: see individual sessions Anatomy G29 JZ Young Lecture Theatre
| 14:00 – 15:40 14:00 – 14:30 14:30 – 14:50 14:50 – 15:00 15:00 – 15:10 15:10 – 15:40 | Session 9.2.1 Moon OWLI Biology Inspired TBD Q & A | Chair: Dr Iya Whiteley Dr Aidan Cowley Prof Andrew Edkins Malica Schmidt Dr Aaron Pankhurst |
|---|---|---|
| 15:40 – 15:55 | | |
| 15:55 – 17:00 15:55 – 16:25 16:25 – 16:40 16:40 – 16:55 16:55 – 17:10 17:10 – 17:30 | Session 9.2.2 Mars The psychological dimension UCL-lead pilot analogue mission Can your kidneys make it to Mars and back? Q & A | Chair: Prof Andrew Edkins Dr Romain Charles Dr Iya Whiteley Miles Harris Prof Keith Siew/Prof Stephen Walsh |
Wednesday 10 th November 2021 10:00 – 17:00
The future role of academia in the space sector
Chair: Alan Smith
Rapporteur: Serge Plattard
UCL Space Policy Workshop
Archaeology G6 Lecture Theatre
| 09:30 – 10:00 | Coffee/tea and registration | | |
|---|---|---|---|
| 10:00 – 10:10 | Introduction Alan Smith | | |
| 10:10 – 11:30 10:10 – 10:20 10:20 – 10:30 10:30 – 10:40 10:40 – 10:50 10:50 – 11:30 | Session 10.1.1 Discussion | Prof Sarah Matthews Steve Welch Natacha Callens Dr Lorraine Hanlon | Skills and education MSSL/UCL Director, KTN ESA Academy University of Dublin |
| 11:30 – 11:45 | Coffee/tea | | |
| 11:45 – 13:00 11:45 – 11:55 11:55 – 12:05 12:05 – 12:15 12:15 – 12:25 12:25 – 13:00 | Session 10.1.2 Discussion | Prof Nabil Aouf Prof Martin Sweeting John Spindler Kemil Thomas | Innovative technologies City University London Space Innovation Centre Exec Chair, SSTL; University of Surrey, Surrey Space Centre, Chair CEO Capital Enterprise UCL Innovation and Enterprise |
| 13:00 – 13:30 | Buffet lunch | | |
| 13:30 – 15:00 13:30 – 13:40 13:40 – 13:50 13:50 – 14:00 14:00 – 14:10 14:10 – 14:20 14:20 – 15:00 | Session 10.1.3 Discussion | Roger Ward Barbara Ghinelli Eddie Ross Dr Chris Castelli Prof Martin Barstow | Collaboration Thales Director, Harwell Science and Innovation Campus, UKRI-STFC Satellite Applications Catapult Director of Programmes/UKSA Director of Strategic Partnerships, University of Leicester |
| 15:00 – 15:15 | Coffee/tea | | |
| 15:15 – 17:00 15:15 – 15:25 15:25 – 15:35 15:35 – 15:45 | Session 10.1.4 | Prof Lucy Green Pallab Ghosh Prof Anu Ojha | Inspiration MSSL/UCL BBC Discovery Director, |
Event 11.1
| 09:30 – 10:00 | | |
|---|---|---|
| 10:00 – 10:30 10:00 – 10:30 | Session 11.1.1 Invited Speaker | Prof Suzanne Aigrain |
| 10:30 – 11:30 10:30 – 11:00 11:00 – 11:30 | PLATO Science PLATO Technology | Dr Vincent Van Eylen Alan Smith |
| 11:30 – 11:45 | | |
| 11:45 – 13:00 11:45 – 12:15 12:15 – 12:45 12-45 – 13:00 | Session 11.1.2 Ariel Science Ariel Technology Q & A | Prof Giovanna Tinetti Dr Giorgio Savini |
Thursday 11 th November 2021 13:30 – 17:00 Gustav Tuck
ESA_Lab
Chair: Prof Serge Plattard
| 13:00 – 13:30 | | |
|---|---|---|
| 13:30 – 15:00 13:30 – 14:00 14:00 – 14:15 14:15 – 14:30 14:30 – 14:45 14:45 – 15:00 | Session 4.3 ESA ESA_Lab@UCL ESA_Lab@Oxford ESA_Lab@Lanc ESA_Lab@Leicester | Isabelle Duvaux-Bechon Prof Alan Smith Prof Simon Jackman Prof Rick Wylie Prof Nigel Bannister |
| 15:15 – 15:30 | | |
| 15:30 – 17:00 15:30 – 15:45 15:45 – 16:00 16:00 – 16:15 16:15 – 16:30 16:30 – 16:45 16:45 – 17:00 | Session 4.4 Artificial Intelligence Comms Material Sciences Orbital Dynamics PM and SE Space Weather | Dr Ingo Waldmann Prof Kasia Balakier Prof Kwang-Leong Choy Prof Marek Ziebart Ian Raper Prof Lucie Green |
| 17:00 – 18:00 | | |
Thursday 11 th November 2021 18:00 – 19:30 Gustav Tuck
Conference Débat
| 18:00 – 18:20 | How can satellites help us monitor climate change? | Dr Michel Tsamados |
|---|---|---|
| 18:20 – 18:40 | How can satellites help us adapt to climate change? | Prof Dan Osborn |
| 18:40 – 19:20 | To be announced | Prof Catherine Prigent |
Event 12.1
Friday 12 th November 2021 10:00 – 13:00 Gustav Tuck 09:30 – 18:00
Pecha Kucha
| 09:30 – 10:00 | |
|---|---|
| 10:00 – 11:30 | Session 5.1 |
| 11:30 – 11:45 | |
| 11:45 – 13:00 | Session 5.2 |
Friday 12 th November 2021
15:00 – 17:00 Gustav Tuck 09:30 – 18:00
Debate
Settling on Mars is essential for the future of humanity.
| 15:00 – 15:10 | Introduction | David Jeevendrampillai |
|---|---|---|
| 15:00 – 17:00 | Debate | Malica |
| | For | Dr Xiavier De Kestelier Prof Andrew Edkins TBC |
| | Against | Prof Sanjeev Gupta Prof Sylvia Ekstrӧm Prof Andrew Coates |
| 17:00 – 18:00 | | |
|
Practical Skills: Money Management
By Stacy Francis
Times of transition are now the norm. Whether you are a recent law school graduate, a pink slip casualty, ready to reenter the workforce or an aboutto-be-retired lawyer, this is an article you have to read.
It is more important than ever to master the practical skills of money management and get a firm handle on your finances. Here is some advice to get you on the right path . . . fast!
Law School Grad
Life is not so grand for newly minted law school graduates. We are in the fifth straight year of a depressed job market for new graduates. According to new U.S. Labor Department data, 1 the legal services sector added 2,700 jobs in August, the second highest single-month jump in the past year but still well below pre-recession employment levels. Instead of $150,000 a year salaries, many grads are earning as little as $25 an hour for contract work. At the same time expenses – especially in the Big Apple – continue to rise. Rents and home prices are at the highest levels we have seen in the last six years.
Don't Stop Learning Just Because You Are Out of School
When you needed to learn about contracts, you took Contracts. The same should be true about managing money. In fact, the practical skills of money management are much more important to your overall financial security than any course you took in law school.
Stacy Francis is president and CEO of Francis Financial, Inc., a boutique wealth management and financial planning firm in New York City. A Certified Financial Planner, she attended the New York University Center for Finance, Law and Taxation. In 2013, she was listed as a National Money Hero by CNN Money Magazine.
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Get smart and learn about money. Start with a book that is geared toward individuals in their 20s and 30s. Set yourself a goal to read at least one personal finance book a quarter.
Start an Emergency Fund
Before putting your student loan debt repayment plan in high gear, start to build an emergency fund. Put at least three months of living expenses in a high-interest savings account to ensure that you never have to move back home. Online savings accounts at Ally Bank and Capital One offer some of the highest interest rates. Remember that an emergency might occur due to a medical issue, job loss or unforeseen major expense. Please note, the release of the latest iPhone 5S is not an emergency.
Pay Off Your Debt
The average law school debt is upwards of $100,000 and it can even top out at $150,000. While your interest rate may be low, it is wise to start paying off your student loan debt now to ensure that you are not still making payments in 20 years' time. Be sure to make on-time payments; this will start to build your positive credit history.
Credit Score
While a credit score of 850 would not have gotten you into an Ivy League law school, it may help you get the job of your dreams. According to many employers, your credit score clearly defines how fiscally responsible you are and how you manage your obligations.
Be sure to pull your free credit report by visiting www. annualcreditreport.com. Review your report to make sure all information is accurate.
On Your First Day, Think About Retirement
Most likely you have not even had a chance to hang up your shiny new law school diploma, so retirement is most likely not on the top of your mind; however, it should be. The best time to start to plan for retirement is your first day of work. Sign up for your employer's 401(k) plan as soon as you are eligible. You can contribute up to $17,500 for the year. If you are not able to part with this much cash, be sure to contribute at least the amount required to get your employer's match.
Pink Slip Position
A sad part of working in the law field is that sometimes, despite your hard work and effort, you get laid off. All of a sudden you are without a paycheck and the security that comes with it.
Difficult as this may seem, a pink slip can give you the opportunity to re-assess your career. Which areas of law are you most passionate about? What aspects of your last position did you love or hate? What skills do you want to develop further?
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An in-depth review of these questions and their answers will give you the direction you need to make smart moves with your career. The most lucrative investment vehicle you have is neither your investment accounts nor your home – it is your career. By mapping out a strategy that adds critical skills to your career portfolio, you will be adding major earnings potential.
Secure Heath Insurance
While your career plan and next steps are important, there are other vital decisions you need to make immediately. One of these critical decisions is regarding health insurance. You have the ability to maintain your current health insurance through COBRA. This may be a good option for you; however, it can be expensive. Another option is to get insurance through New York State of Health, New York's health plan marketplace. 2 This is an organized marketplace designed to help people shop for and enroll in health insurance coverage. Individuals, families and small businesses will be able to use the health plan marketplace to help them compare insurance options, calculate costs and select coverage.
American Express, Visa and MasterCard Are NOT Your Friends
Studies have shown that you are more likely to spend more if you use your credit card to pay versus paying cold hard cash. Resist the urge to whip out your credit card and if you do use your plastic, be sure to pay your balance in full every month. Pay your rent and mortgage first. Keeping a roof over your head is most important.
The "B" Word
Don't get turned off by the "B" word. Your budget plan is the path to financial security and the vacation, home and retirement of your dreams. Track your expenses for one month. Record what you pay right down to the newspaper, bagel and latte you grab on your way to an interview. Evaluate the results and pinpoint where you are spending your money. Cut out expenses that are unnecessary.
Roll Over Your 401(k)
Many job changers get burned because they leave their 401(k) at their old employer and forget about it. Be sure to roll over your 401(k) to a rollover IRA and rebalance your portfolio every year. Another option is to roll your 401(k) into your new employer's retirement plan. Strong arguments can be made on both sides. You need to weigh all the factors and make a decision based on your own needs and priorities.
Most individuals decide to roll their plan into a rollover IRA, as it generally offers more investment choices than an employer's 401(k) plan. You also may be interested in eventually converting your IRA to a Roth IRA. You'll have to pay taxes on the amount you
roll over from a regular IRA to a Roth IRA, but any qualified distributions from the Roth IRA in the future will be tax-free.
* Chiropractic treatment
* Laboratory fees
* Over-the-counter items
Roughly 75% of 401(k) plans allow you to borrow money, making the option of rolling your 401(k) into your next employer's plan more appealing. If you roll over your retirement funds to a new employer's plan that permits loans, you may be able to borrow up to 50% of the amount you roll over, up to $50,000.
* Prescriptions
* Mental health counseling
Dependent Care FSA
If you have kids, most likely you will have additional child care costs. You can contribute up to $5,000 a year to
Retirement can be the saddest or happiest day of your life. It is the extent of your preparation that will determine which it is for you.
Returning to the Workforce
Whether it is because your kids are getting older, your partner lost a job or you are looking to get back into the career you love, returning to the workforce can be a major adjustment financially.
Rework Your Cash Flow
It is indeed a material world. However, don't let a "sudden money" mentality take hold of you now that more income is coming in the door. New cars, trips and even a larger home might be on your mind. Hold off on these purchases and maintain your pre-work level of spending.
Review your current budget and be sure to add new expenses such as child care, work clothing, dry cleaning and commuting costs. Be sure to calculate how much of a bite these new expenses will take out of your budget each month and make adjustments as needed.
Spending Accounts Save You Money in Taxes
Using a spending account is like getting a discount on certain expenses – not because the expenses are less, but because you are paying them with money that has not been taxed.
Medical Flexible Spending Plan
Medical costs have skyrocketed, so be sure to enroll in the Medical Flexible Spending Plan (FSA) at your new job. The limits are $2,500 per person, per employee for 2013.
Here are just some of the expenses that you can pay with your Medical FSA:
* Health plan copays and more
* Dental work and orthodontia
* Doctor's fees
* Eye exams and eyeglasses
* Contact lenses and saline solution
* Hearing aids
this account. All contributions are pretax, thus reducing your taxable income and cutting the money due to Uncle Sam. You can use a Dependent Care FSA to reimburse you for the work-related cost of care for a child who is under age 13, or any other tax dependent, such as an elderly parent or spouse, who is physically or mentally incapable of self-care. Note that they must reside in the same principal residence as you.
Catch Up on Retirement
Many people reentering the workforce need to make up for lost time, because their retirement savings are nowhere near the levels they should be. The goal is to save as much of your new income as possible. Therefore, enroll in your company 401(k) or 403b plan on your first day of work, if you are eligible. Your contributions will be taken directly out of your paycheck – before taxes. This has the added benefit of lowering your taxable income and allowing you to pay less to the government come April 15th. Once you have maxed out your employer retirement plan, open an IRA. You can put $5,000 a year into your IRA and up to $6,000 a year if you are over age 50.
Review Your Benefits
Many employers offer plush employee benefits such as life and disability insurance. Understand your benefits and whether you need to supplement them with a private policy outside of work. Now that you are earning a salary, you need to make sure that you have insurance to replace income that would be lost to your family if you were to die or be unable to work due to health reasons.
You Are a Retiree . . . Finally!
Retirement can be the saddest or happiest day of your life. It is the extent of your preparation that will determine which it is for you.
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Make Your Money Work for You
The investment selection in your retirement plan is more important today than ever. Many soon-to-be retirees have chosen conservative investments to be "safe." While this may seem like a wise choice, you should realize that this portfolio must last you another 25, or even 40, years. You must be careful about the "decumulation" phase and make sure that you have enough money to see you and your family through retirement. Choose an appropriate mix of stocks and bonds based on your age and risk tolerance. A fantastic resource to help you discover your hidden risk tolerance is Morningstar. 3
Are You Ready to Retire?
Before you hand in your notice, make sure that you are well positioned for retirement. Do a retirement calculation. Do you know how much you need to have saved to live comfortably after retirement? About half of people queried in retirement confidence surveys think they'll need less than 70% of their pre-retirement income. However, we suggest that you have at least 90% of your pre-retirement wages.
Use a retirement needs calculator to determine how well you have prepared and what you can do to improve your retirement outlook. It is important that you periodically re-evaluate your preparedness. Changes in economic climate, inflation, achievable returns, and in your personal situation will impact your plan. 4
Rome Wasn't Built in a Day and Not by
One Person Alone
You only get one chance to retire successfully, but an experienced financial planner has been through this many times before. You will want to select a competent, qualified professional with whom you feel comfortable as well as one whose expertise and business style suits your financial planning needs.
The term "financial planner" is used by many financial professionals (and many non-professionals). Ask the planner what qualifies him or her to offer financial planning advice and whether he or she holds a financial planning designation such as the Certified Financial Planner™ mark.
Look for a Fee-Only Financial Planner
These advisors receive no compensation from any product recommended (like insurance or annuities) and do not represent any product or company. They never accept commissions, trails, cross-selling fees, referral fee arrangements, kickbacks, surrender fees, sales contests, "educational cruises" and vacations, or "free" gifts. For a fee-only advisor in your area visit the website www. NAPFA.org.
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Conclusion
Transition is the new normal. You may not be able to predict or anticipate when and how change will come, but a firm financial foundation will help maintain stability – no matter what the future brings. n
1. See Tom Huddleston, Jr., Legal Sector Adds 2,700 Jobs in August, The AmLaw Daily, Sept. 6, 2013.
2. https://nystateofhealth.ny.gov/.
3. http://corporate.morningstar.com/us/documents/NASDCompliance/ IWT_CurrentReport_RiskToleranceQuest.pdf.
4. http://finance.yahoo.com/calculator/retirement/ret02/.
Transitions
As a Senior Associate in the Corporate Restructuring Group at Skadden, Arps, Slate, Meagher & Flom LLP, Suzanne Lovett represents corporations, boards of directors, shareholders and creditors. She joined Skadden six years ago, after taking six years off to raise her three children. Prior to that, Suzanne had worked as a restructuring lawyer for almost nine-and-a-half years. While she found fulfillment in her job and career, the competing demands of raising her children won out. When asked what inspired her to go back to work, she said that she always missed the challenge of her job but needed to be sure that her children were settled in school and ready to have a working mom. She also indicated how incredibly fortunate she is to have a supportive husband who helped make the transition possible. Suzanne's advice for others going through transition is to "talk to everyone about your plans. I have heard from women who say they are reluctant to ask friends for help. Don't view it as asking for a favor; instead, just speak from your heart. Your passion will come through and you would be surprised how many people are willing to help with an introduction or a job lead."
– Jocelyn Cibinskas
Starting January 1, 2014, NYSBA has a new advertising representative.
Fox Associates Inc. 116 West Kinzie St., Chicago, IL 60654 312-644-3888 FAX: 312-644-8718 Email: firstname.lastname@example.org
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LARAMIE COUNTY LAND USE REGULATIONS 1-5-102 ADMINISTRATIVE APPEALS ................................................................... 19
LARAMIE COUNTY LAND USE REGULATIONS TITLE 1 ADMINISTRATION
CHAPTER 1 GENERAL ADMINISTRATION
1-1-100 PURPOSE AND INTENT
The purpose of the Laramie County Land Use Regulations is to endorse and support the public health, safety and general welfare of Laramie County. As enabled by the Wyoming Statutes, these regulations are hereby promulgated to implement guidance provided by the adopted Laramie County Comprehensive Plan.
The regulatory intent and focus of these rules are: to further efficient development patterns while protecting property rights, to create fair and consistent review processes for the development and redevelopment of land, and to minimize the negative impact of development on land and water resources. The County's Comprehensive Plan and AMEC Memo, which are intended to work in tandem with these rules, shall also be made available to the public at all times on the County's website.
1-1-101 AUTHORITY
These regulations are adopted by the Laramie County Commissioners under the authority granted by Wyoming Statutes: Title 34 Property, Conveyances and Security Transactions, Title 18 Counties, Title 15 Cities and Towns, Title 24 Highways, Title 9 Administration of the Government, Title 35 Public Health and Safety, and Title 31 Motor Vehicles. Exclusion or absence from this enumerated list of any authority shall not abrogate or otherwise prevent exercise of any authority or enforcement or same, granted to Laramie County by law, regulation or judicial decision or interpretation. The standards, regulations, requirements, instructions, as well as the processes contained within these regulations are the result of the legislative decision-making authority by the Board of County Commissioners granted by the Wyoming State Statutes.
1-1-102 APPLICABILITY
These regulations shall apply to all lands within Laramie County, except as noted. These regulations shall neither apply to federal lands nor any land within the incorporated limits of any town or city.
1-1-103 USE OF LANGUAGE
To ensure the clarity of these regulations, words and terms used, defined, interpreted or further described within are to be understood as follows:
a. The present tense includes the future tense, and vice versa.
b. The word "shall" means mandatory.
c. The word "may" means permissive.
d. The word "should" means permissive.
e. The masculine includes the feminine, and vice versa.
f. Words used in the singular number include the plural, and vice versa, unless the context clearly indicates the contrary.
g. The phrase "used for" includes "designed for", "arranged for", "intended for", "maintained for", and "occupied for".
h. The term "permitted use" means the same as "use by right."
i. Any reference to an administrative official shall mean that particular official or their designee.
j. Any reference to other local, state or federal government regulations shall mean the most current promulgated version.
k. Any reference to "person" also includes corporations, partnerships of all types, firms, and companies.
l. Where the word "days" is used to indicate a required time for meeting a requirement of the regulations, the specified number refers to calendar days.
1-1-104 SEVERABILITY, INTERPRETATION, ABATEMENT, AND TRANSITION PROVISIONS
a. Severability.
Should any specific section or provision of these regulations be declared invalid or unconstitutional by any court of competent jurisdiction, the declaration shall not affect the validity of the regulations as a whole or any other part thereof, which is not specifically declared to be invalid or unconstitutional.
b. Conflicts with Other Public Laws, Regulations or Requirements.
These regulations are not intended to revoke or repeal any other public law, regulation or permit. Where the conditions imposed by any provision of these regulations is either more or less restrictive that comparable conditions imposed by any other provisions within the regulations, or any other applicable public law, resolution, rule, or regulation of any type that applies, the regulations which are more restrictive and impose higher standards or requirements shall govern.
c. Conflicts with Private Agreements.
Laramie County shall neither be a party to, nor enforce or intervene with any recorded or unrecorded private easement, private covenant, or private agreement made between or amongst members of the public or business entities for their benefit. Laramie County enforces these regulations across all applicable lands within its jurisdiction to ensure that fairness, consistency, due process, equal treatment, and individual property rights are upheld through the promulgation of these regulations and their requirements.
d. No Abatement of Existing Actions.
These regulations shall not be construed as abating any action now pending under prior regulations. These regulations do not discontinue, abate, modify or alter any penalty accruing or about to accrue; or as affecting the liability of any person, firm or corporation. These regulations do not waive any right of the County under any section or provision existing at the time of adoption of these regulations. These regulations neither vacate nor annul any rights obtained by any person through lawful action of the County, except as expressly provided for within the body of these regulations.
e. Transition Provision.
If a written action or request, or a complete application is submitted prior to the effective date of the new Laramie County Land Use Regulations it shall be reviewed; then may be approved, denied, or tabled using the previous set of regulations. Should a written action or request, or complete application be submitted after the effective date of these regulations, such submittals are subject to all of the provisions of these new regulations.
f. Minimum Requirements.
All provisions of these regulations shall constitute the minimum requirements in Laramie County. Except as explicitly provided in these rules, nothing herein shall prevent anyone, including landowners, homeowner associations, developers, and contractors, from adopting their own standards above or beyond these minimum requirements.
1-1-105 EFFECTIVE DATE
These regulations are in full effect upon approval by the Laramie County Board of Commissioners, and the signature of the Chairperson of the Board, with the County Clerk attesting to the signature, upon the resolution which approves these regulations.
1-1-106 VIOLATIONS AND PENALTIES
a. Violations.
No land shall be developed, used or occupied, and no structure shall be used, constructed, occupied, extended, converted, remodeled, or altered without full compliance with the terms of these regulations and other applicable regulations.
b. Penalties For Violations.
Violation of the provisions of these regulations by failure to comply with any of its requirements, including violations of conditions and safeguards established in connection with conditions shall constitute a misdemeanor pursuant to W.S.§ 18-5-206. Unless otherwise provided for in these regulations, any person who violates these regulations, or fails to comply with any of its requirements shall, upon conviction thereof, be fined not more than $750.00 for each violation, and in addition shall pay all costs and expenses in the case. Each day such violation continues shall constitute a separate offense. Nothing
herein contained shall prevent Laramie County from taking such other lawful action as is necessary and reasonable to prevent or remedy any violation.
c. Legal Actions to Prevent Violations.
In the event that any land is developed, subdivided, used or occupied, or any building or structure is erected, constructed, reconstructed, repaired, converted, or any building, structure or land is used in violation of these regulations, Laramie County Planning and Development or other appropriate authority, in addition to other remedies, may institute an injunction, mandamus or other appropriate action in a court of appropriate jurisdiction to stop the violation.
1-1-107 TEXT AMENDMENTS
a. Anyone May Draft Amendment Proposals.
These regulations may be amended through additions, changes, modifications, or repeal. Anyone may propose a text amendment. To do so, they must provide a redlined document to the Planning Director and/or Public Works Director showing exactly what language is proposed to be added, removed, and/or repealed, and the location(s) the language appears in this document.
b. Amendment Procedure.
Upon receipt of a redlined proposal to change these regulations, the Director(s) shall send the proposal to the County Attorney for legal review. The County Attorney shall determine whether the proposal lies within the scope of the authority of the County Commissioners under state law and advise the Director accordingly.
Once the legal review is complete, the Director(s) shall schedule the proposal for the next feasible Planning Commission meeting. The Director(s) shall provide a report to the Commission with recommendations as to the Director's position on the proposal. The Planning Commission shall conduct a public hearing on the proposal and vote to recommend adoption or to deny the proposal.
If the Planning Commission votes to recommend adoption of the proposal, the County shall begin rulemaking under the Wyoming Administrative Procedures Act. Legal advertisement for a Notice of Intent to Adopt Rules issued by the Board of Commissioners shall be published in a local newspaper a minimum of 45 days prior to public hearing(s). The notice shall include the date, time, location and purpose of the public hearing and direct interested parties to address inquiries and comment to Planning and Development and/or Public Works.
Upon completion of the legal notice period, the Board of County Commissioners shall then hear the proposed rule changes at the next following meeting at a public hearing and shall vote on whether to adopt the proposal.
c. Immediate Effect Presumed.
If the Commissioners vote to adopt a proposal to change these regulations, they are changed with immediate effect unless the Commissioners resolve to specify a delayed effective date.
***END OF CHAPTER 1 – GENERAL ADMINISTRATION***
LARAMIE COUNTY LAND USE REGULATIONS CHAPTER 2 DEVELOPMENT ACTION PERMITTING
1-2-100 PERMITS AND APPROVALS REQUIRED
a. Permits Required.
An individual, property owner, agent, contractor, consultant or other person shall be required to obtain a permit/approval from Laramie County for the following development action categories which shall be furnished in writing.
b. No Verbal Permits.
There shall be no permits or approvals given verbally.
c. Failure to Obtain Permits is Violation.
Failure to obtain a permit or approval shall constitute a violation of Section 1-1-106 contained within this regulation.
d. Permit Types.
The following is a list of the types of permits and approvals issued by Laramie County under these rules:
Building Permit
Floodplain Development Permit
Home Occupation Permit
Non-traditional Housing Permit
Temporary Use Permit
Conditional Use Permit
Grading, Erosion, and Sediment Control Permit
Preliminary Subdivision Plan
Small Subdivision Permit
Minor Subdivision Permit
Major Subdivision Permit
Zone Change
Variance
Subdivision Exemption
Certificate of Review/Compliance
Administrative Adjustment
Access Permit
Utility Permit
ROW Permit
OSOW Permit
General Public Works Permit
1-2-101 DEVELOPMENT ACTION APPLICATIONS
a. Planning and Public Works to Develop Applications.
The Planning and Development Department and the Public Works Department shall provide applications for all development actions. The applications shall include the submittal requirements and processes pertinent to the development action.
b. Changes to Applications.
Changes to the application and procedures may occur at the discretion of the Planning and Public Works Directors. Applications may require attachments which become part of the submittal process. Applications shall be made available at the Planning and Development Department and the Public Works Department via their respective websites.
c. Applications Incorporated by Reference.
The applications, their requirements and procedures are incorporated into these regulations by reference.
1-2-102 FEES, CHARGES, AND EXPENSES FOR DEVELOPMENT ACTIONS
a. Schedule of Fees.
A written schedule of fees, charges, and expenses shall be made available at the Planning and Development and Public Works Departments and on their respective websites.
b. Fees Due At Submittal.
The initial fee for any application is due at the time of submittal.
c. Fees Due Upon Approval.
No final action to permit, record, authorize or allow any application as required by these regulations before the Board, Planning Commission, Planning and Development and Public Works Departments shall be carried out until all final fees have been paid in full.
d. Fees Updated Yearly.
A schedule of fees may be reviewed by the Planning Commission and adopted by the Board of County Commissioners effective July 1 st of each year.
e. How Fees Derived.
Apart from Community Facility and Public Safety fees, all fees shall be established based upon average cost time, as well as the materials and overhead expenses accrued by County staff for services provided. See Title 4, Chapter 5 for additional fees related to subdivision permits.
***END OF CHAPTER 2 - DEVELOPMENT ACTION PERMITTING
LARAMIE COUNTY LAND USE REGULATIONS CHAPTER 3 PUBLIC NOTICE, PUBLIC HEARINGS, AND DECISION-MAKING
1-3-100 PUBLIC NOTICE AS REQUIRED BY STATUTE
Public Notice required by these regulations will be in accordance with state statutes. The following public notice procedures are required, except as otherwise provided by the regulations. The procedures shall include legal notice, written notice to area property owners and property posting by the applicant.
1-3-101 APPLICANTS TO ATTEND HEARINGS
The applicant or a representative agent for a development action is required to participate in all public hearings related to the project. Attendance may be accommodated for virtually. Failure to do so may result in the matter being tabled.
1-3-102 SCHEDULE OF PUBLIC NOTICE, REQUIRED HEARINGS, AND DECISIONMAKING AUTHORITIES
The following chart outlines required legal notice, posted notice, and written notice to area property owners by development action type:
| Development Action Requiring Public Notice | Public Notice Includes: Legal Notice, Written Notice and Property Posting | Public Hearing(s) |
|---|---|---|
| Zone Change | Yes | Planning Commission and Board |
| Variance Request | Yes | Planning Commission |
| Administrative Variance Request | Yes | No |
| Conditional Use Class A Types | Yes | No |
| Conditional Use Class B Types | Yes | Planning Commission |
| Conditional Use – Class C Types | Yes | |
| | | Planning Commission and Board |
|---|---|---|
| New Site Plan | Yes | Possible with Board |
| Conditional Use Site Plan – Class A | Yes | No |
| Conditional Use Site Plan Class B | Yes | Planning Commission |
| Conditional Use Site Plan Class C | Yes | Planning Commission and Board |
| Preliminary Subdivision Plan | Yes | Planning Commission |
| Subdivision Permit and Plat For Minor and Major Subdivisions | Yes | Planning Commission and Board |
| Small Subdivisions | Yes | Board |
| Development Action With No Decision But Requires Public Notice | Public Notice Includes: Legal Notice, Written Notice and Property Notice | Public Hearing Only |
| High power transmission line public hearing - easement or right-of-way is 100 feet wide or more. | Yes | Yes |
| Water pipeline public hearing - pipe is at least a 24-inch-transmission pipeline. | Yes | Yes |
| Energy pipeline public hearing - transmission line at least 12 inches | Yes | Yes |
1-3-103 LEGAL NOTICE
a. 30 Days Minimum.
Legal Notice for development actions or projects is to be published in a local newspaper at least 30 calendar days prior to the first public hearing, or administrative decision about a site plan or simple subdivision by the Planning Department.
b. Legal Notice Contents.
The notice shall include the date, time, location and purpose of the public hearing and directs interested parties to address inquiries and questions to Planning and Development.
1-3-104 WRITTEN NOTICE TO PROPERTY OWNERS
a. Letters to Specified Distances from Development Actions.
Planning and Development shall send, by first class mail, a letter to property owners who are within a specified distance of the property seeking a development action. The letter will describe the projects' purpose, provide a map of the proposed project if possible, and give the date, time, and location for the public hearing. The letter shall be mailed no later than 30 days prior to the first scheduled public hearing or earliest possible date of administrative decision. The applicant for a development action shall pay for the required mailing upon approval of the project by the decision-making person or body.
b. Distances for Written Notice.
Distance, not including right-of-way from development action property lines for written notice to property owners, shall be as follows:
1-3-105 POSTED PROPERTY NOTICE
a. Planning To Provide Signs at Applicant's Expense.
Public Notice signs provided by the Planning Department giving notice of the proposed development action shall be posted on the property by the applicant. The applicant shall pay for the sign(s) with the initial application fee.
b. Visible Posted Notice Required at Frontage(s).
The sign or signs shall be posted at the property frontage(s) no less than 30 days prior to the first public hearing or administrative decision. Proof of posting is to be provided to the Planning Department within the same time frame. Public Notice signs are to be visible from the right-of-way, public easement or private road. The number of signs required shall depend upon the number of property road frontages.
***END OF CHAPTER 3 - PUBLIC NOTICE, PUBLIC HEARINGS, AND DECISIONMAKING***
LARAMIE COUNTY LAND USE REGULATIONS CHAPTER 4 LARAMIE COUNTY PLANNING COMMISSION
1-4-100 PLANNING COMMISSION COMPOSITION AND DUTIES
a. Composition and Terms of Planning Commission.
The Planning Commission shall be a five (5) member body appointed by the Board of County Commissioners serving staggered three (3) year terms.
b. Responsibilities of Planning Commission.
The Planning Commission shall carry out the following duties and responsibilities:
i. Conduct public hearings as directed by the Board of County Commissioners.
ii. Conduct public hearings on any text or map change for the Laramie County Comprehensive Plan and make a recommendation to the Board of County Commissioners. The Planning Commission shall make zone change recommendations utilizing criteria contained within these regulations.
iii. Conduct public hearings on any text or map change for the Laramie County Land Use Regulations and make a recommendation to the Board of County Commissioners. The Planning Commission is to use criteria contained within these regulations.
iv. Conduct public hearings about Class B conditional uses, and make a decision to approve,
approve with conditions, deny, or table the request.
v. Conduct public hearings about subdivision permit and plat applications and make a recommendation to the Board of County Commissioners. The Planning Commission may recommend approval, approve with conditions, table, or deny. Any item tabled or any recommendation to table, or approve with conditions, or recommended denial, shall have the written reasoning for such action placed in the record.
vi. Conduct public hearings about Class C conditional uses and make a recommendation to the Board of County Commissioners. The Planning Commission may recommend approval, approve with conditions, table, or deny. Any item tabled or any recommendation to table, or approve with conditions, or recommended denial, shall have the written reasoning for such action placed in the record.
vii. Conduct public hearings and decide upon variance requests using criteria within these regulations. The reasoning for a decision is to be entered as part of the written record.
viii. Conduct public hearings and decide upon appeals related to interpretation of the land use regulations. The reasoning for the decision is to be entered as part of the written record.
ix. Conduct public hearings on preliminary subdivision plans. The Planning Commission shall also approve, approve with conditions, table or deny a preliminary subdivision plan. A decision to table, approve with conditions or deny shall have the rationale for such action as part of the record.
***END OF CHAPTER 4 – LARAMIE COUNTY PLANNING COMMISSION***
LARAMIE COUNTY LAND USE REGULATIONS CHAPTER 5 VARIANCES, ADMINISTRATIVE ADJUSTMENTS,
AND APPEALS
1-5-100 VARIANCES
a. Planning Commission to Hear and Decide on Variances.
The Planning Commission shall have the authority to hear and decide on applications for any type of variance. The variance may be from any portion of these regulations related to any specific standard for its application, and any numerical requirement of these regulations, except Chapters 3 and 4 contained within Title 5. The applicant shall provide written evidence related to each criteria component as part of the application depending upon the type of variance requested. The Planning Commission may approve, approve with conditions, or deny a variance request.
b. No Variance If Administrative Adjustment Sufficient.
If a request for a variance may qualify as an administrative adjustment, it shall be processed as such and not as a variance.
c. No Use Variances.
A variance for a use is prohibited. A variance which has the force to rid the requirement or change the requirement to make it ineffective is prohibited. Any such request is considered an amendment to the regulation.
d. Procedures for all Variances.
An applicant for a variance shall attend a pre-application meeting, apply with required fees, and attend the public hearing where the Planning Commission will decide. Public notice requirements apply to a variance request. There shall be a letter of notice to area property owners as required, property posting by the applicant and a newspaper legal notice published at least 30 days prior to the Planning Commission public hearing.
1-5-101 ADMINISTRATIVE ADJUSTMENTS
a. Administrative Adjustments Generally.
The administrative adjustment is a management tool designed to make the operation of the zoning, subdivision, and infrastructure regulations more efficient. It may be employed when there is a need for minor deviations from stated standards. Decision principles are used so the decision is fair and consistent. An administrative adjustment is not a request for interpretation of the requirements and their application.
b. Decision Principles for Administrative Adjustments.
The Planning and Public Works Directors shall utilize the following principles in deciding whether to grant an administrative adjustment:
1. The administrative adjustment shall meet the intent of the regulations and have the same effect as if it had not been granted.
2. The administrative adjustment shall not be harmful to surrounding properties.
3. Shall demonstrate it upholds public health, safety, and the general welfare of the community.
4. The administrative adjustment is reasonable given the existing circumstances on the site.
5. Financial rationales are prohibited.
6. The applicant shall not have created the problem in question requiring adjustment.
7. The applicant shall explain in writing how their situation meets the decision principles for an administrative adjustment. All six (6) principles are to be met in order to receive an administrative adjustment.
c. Zoning Administrative Adjustments.
The following standards within the regulations are eligible for an administrative adjustment:
1. Landscape Plan Alternative which meets the requirements by having the same effect.
2. Signs: May increase total square footage by up to 10%.
3. Plot Plan: Where central water and sewer is provided minimum lot size may be decreased by 10%. In all areas, the maximum lot coverage and maximum height may be increased up to 10%.
4. In all areas, setbacks may be decreased by up to 10%.
d. Subdivision Administrative Adjustments
The following standards within the regulations may be eligible for an administrative adjustment.
1. The time frame for recording a plat may be extended up to 30 days.
2. Plat layout and content requirements may be modified as long as the plat requirements within the State Statutes are still maintained.
e. Drainage and Stormwater Management Administrative Adjustments
The following standards within the regulations may be eligible for an administrative adjustment.
1. Modifications to the Drainage Certification.
The following items (singular or in combination) may be considered eligible for an administrative adjustment to the specific requirements of a Drainage Report.
1. Engineering information is provided to substantiate there are no potential drainage problems at the site, upstream and downstream of the site (including impacts to downstream floodplains).
2. The development or redevelopment will not result in an increase in the historic impervious area and/or runoff, as shown by engineering information.
3. The development or redevelopment of an area is immediately adjacent to a major drainage way that is shown to be capable of conveying the fully developed basin 100-year flood without impact to the base flood elevation.
4. The development or redevelopment is unlikely to create drainage problems for the property itself and/or for adjacent property (upstream and downstream), based upon an engineering analysis.
5. There are existing conveyance systems upstream, through the site and downstream of the site to adequately handle existing and proposed runoff.
6. There are no drainage easements needed to convey runoff or for detention/retention ponds for the platted area or site plan area.
7. There are no proposed culverts needed for the project unless it is only culverts for private residential driveway access roads.
8. There are no FEMA Special Hazard/Floodplain Areas within the property or subdivision.
f. Grading, Erosion and Sediment Control Administrative Adjustments
The following standards within the regulations may be eligible for an administrative adjustment.
1. Modifications to the specific requirements to be included with a GESC permit application.
2. Alternative BMP references to be used.
g. Road Standards Administrative Adjustments
The following items within Title 5, Chapter 6 may be eligible for an administrative adjustments:
1. Substitutions for specific materials to be used.
2. Substitution of the standard specifications being used for the project.
3. Modifications to the access road requirements when there are three (3) or less tracts/lots.
4. Modifications to the construction drawings and notes outlined in these regulations.
5. Modifications to the specific requirements to be included in a traffic impact study.
6. Modifications to the construction testing, inspections and construction data/records requirements.
1-5-102 ADMINISTRATIVE APPEALS
a. Administrative Appeals Generally.
A person directly affected by an administrative decision of the Planning Director or Public Works Director may appeal such decision to the Laramie County Board of Commissioners. The appeal must be related to a process or requirement upon which a formal decision has been made and may not be a general grievance.
b. Procedures for Administrative Appeals.
An appeal is filed through and at the County Clerk's Office on a County form. An administrative appeal shall be initiated within ten (10) days of the decision by the Planning Director or Public Works Director. The administrative process determined by the County Clerk shall be followed.
a. Administrative Appeals shall be carried out as follows.
i. An administrative appeal shall be requested in writing on a County form by a party aggrieved through a decision or action by the Planning Director or Public Works Director, while enforcing any of the provisions of these regulations.
ii. The administrative appeal shall be filed at the Office of the County Clerk within ten (10) calendar days from the date of the decision or action. The Laramie County Clerk is located at 309 West 20 th Street in downtown Cheyenne.
iii. The administrative appeal shall be specific about the action(s) or decision(s) which are being appealed. The appeal shall describe the type of application presented, the date of the decision or action, and a statement of issues on appeal. The appeal shall also reference the section of this regulation or other regulations which are subject of the appeal.
iv. The appeal will be placed on the first regularly scheduled Board meeting that occurs at least seven (7) calendar days after the Office of the County Clerk receives the appeal. The Board's decision will be rendered within forty-five (45) days from the date the appeal is filed with the County Clerk.
c. Appeals of Planning Commission or Board Decision
Appeals from any final decision by the Planning Commission or Board of County Commissioners shall be made in accordance with W.S.§18-3-31.
LARAMIE COUNTY LAND USE REGULATIONS ***END OF CHAPTER 5 – VARIANCES, ADMINISTRATIVE ADJUSTMENTS, AND APPEALS***
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Clinical Profile and Conventional Risk Factors of Acute Coronary Syndrome in Late Elderly Patients
Rabindra Simkhada 1 , Barkadin Khan 1 , Sanjay Singh KC 1
1
Department of Cardiology, Shahid Gangalal National Heart Centre, Kathmandu, Nepal
Corresponding Author: Dr. Rabindra Simkhada
Department of Cardiology, Shahid Gangalal National Heart Centre,
Kathmandu, Nepal. Phone: +977-9841249210
Email: email@example.com
ORCID ID NO: 0000-0002-3704-0175
Cite this article as: Simkhada R, Khan B, KC SS. Clinical Profile and Conventional Risk Factors of Acute Coronary Syndrome in Late Elderly Patients. Nepalese Heart Journal 2022; 19(2), 9-12
Submission date: 6th August, 2022
Accepted date: 24th September, 2022
Abstract
Background and Aims: Acute coronary syndrome is an important health issue. There is paucity of its data in late elderly. We aimed to study their clinical profile and prevalence of conventional risk factors.
Methods: Descriptive cross-sectional study conducted at Shahid Gangalal National Heart Centre from February 2022 to May 2022 including 71 consecutive patients of acute coronary syndrome of age >75 years. They were evaluated focusing their chief complaints and cardiovascular risk factors.
Results: Mean age was 80.32±4.06 years. Forty (56.33%) were male and 31 (43.66%) were female. Thirty-nine (54.92%) were hypertensive, 29 (40.84%) were diabetic, 18 (25.35%) were smoker, 10 (14.08%) had history of dyslipidemia and 6 (8.45%) had family history of cardiovascular disease. Chest pain was present in 54 (76.05%), dyspnea in 28 (39.43%), sweating in 15 (21.12%) and nausea/vomiting in 8 (11.26%). Palpitation was present in 7 (9.85%), and epigastric pain in 13 (18.30%). Seven (9.85%) gave history of pre-syncope/ syncope and 6 (8.45%) had altered mental status. There was significant correlation of smoking (p=0.02) and types of ACS (p=0.001) with gender.
Conclusion: Acute coronary syndrome were plausibility common in late elderly female. Chest pain was commonest complaint in both genders. Dyspnea, sweating and epigastric pain were also common. Pre-syncope/ syncope and altered mental status were also present in some cases. Conventional risk factors were quite common in both genders. These symptoms can be features acute coronary syndrome in elderly hence should be evaluated cautiously.
Keywords: Acute coronary syndrome, Clinical features; Elderly, Risk factors.
DOI: DOI: https://doi.org/10.3126/njh.v20i2.48834
Introduction
Elderly ACS patients can have autonomic symptoms like dyspnea, sweating, pre-syncope or syncope, nausea and vomiting as presenting complaints, so they might be recognized late and can have poor outcomes. 2,5 Studies have shown increasing age also changes the overall characteristics of ACS. Women represented less than 30% of ACS in randomized controlled trials when mean age was 60 to 63 years, whereas it was 50% among the participants of mean age 80 years. 6 Conventional risk factors like diabetes (DM), hypertension (HTN), dyslipidemia, smoking have also been reported in significant in elderly. 7 Previous studies in different settings have emphasized that trials should make efforts to enroll the elderly ACS to define risk and benefit of treatment. 8,9
Acute coronary syndrome (ACS) is a significant health problem of elderly and majority of ACS related death occurs on them. 1 However, clinical trials have included substantially low number of elderlies of ACS and they are often excluded. 2,3 So there is scarcity on evidences in ACS in elderly. 4
Elderly constitutes an important part of every society and they deserve special care. There is lack of data on ACS of elderly in our part of world. The objective of this study was to study on clinical profile and prevalence of traditional risk factors of ACS in late elderly of age more than 75 years in our setting and compare them in relation to gender which will guide us for their better management in future.
Methods
This was a descriptive cross-sectional study conducted at Department of Cardiology, Shahid Gangalal National Heart Centre (SGNHC), Bansbari Kathmandu Nepal from February 2022 to May 2022. The study was conducted after getting approval from institutional review board (IRB) of SGNHC. Informed consent was taken from all the participants. Consecutive patients of acute coronary syndrome with age > 75 years of age were included. Those who could not recall exact age, who didn't provide voluntary consent for participation, whose detail clinical information were not available were excluded. A total of 71 participants were enrolled in the study.
Participants were interviewed regarding presence of cardiovascular risk factors described previously in literatures including the established conventional risk factors.10 Their history of HTN, DM, smoking, dyslipidemia as four conventional risk factors and other probable risk factors like family history of cardiovascular disease (CVD) and dietary pattern (non-vegetarian or vegetarian) were taken in consideration. They were asked about their chief complaints and noted if there were chest pain, dyspnea, sweating, nausea/vomiting, palpitation, epigastric pain, pre-syncope/syncope and altered mental status or not. Their blood pressure (BP), height and weight were measured. Both groups of participants with history of hypertension or those having BP ≥140/90 mmHg confirmed by two readings taken 5 minutes apart were enrolled as hypertensive.
Data entry and analysis were done in Statistical Package for the Social Sciences (SPSS) version 20 for windows. Frequency, percentage distribution and mean ± standard deviation were calculated for variables to be tested. Multi linear regression analysis were done to see level of correlation between findings of male and female. R coefficient was calculated. P value were calculated and value <0.05 were considered statically significant.
Diagnosis of ACS was confirmed and categorized into STsegment elevation myocardial infarction (STEMI), Non-ST-segment elevation myocardial infarction (NSTEMI) and unstable angina (UA) as described in literature.11 History, electrocardiogram (ECG) and cardiac biomarkers that is troponin I and /or creatinine phosphokinase myocardial band (CPK-MB) were taken on consideration. They were categorized as STEMI for those who had 1 mm or more ST elevation in at least 2 anatomically contiguous ECG leads. However for leads V2-V3, ST elevation of at least 2 mm or more in male ≥40 years, 2.5 mm or more in male <40 years and 1.5 mm or more in female were considered STEMI. Those with positive cardiac biomarker (positive troponin I and /or more than 2 fold rise in CPK-MB) but no ST elevation were categorized as NSTEMI and those with negative biomarker and no ST elevation in ECG were categorized as UA.
Results
Age of participants ranged from 76 to 92 years and mean age was 80.32±4.06 years. A total of 40 (56.33%) were male and 31 (43.66%) were female which is shown in figure 1.
A total of 39 (54.92%) were hypertensive, 29 (40.84%) were diabetic, 18 (25.35%) were smoker, 10 (14.08%) had history of dyslipidemia. Six (8.45%) had family history of CVD. Fifty-eight (81.69%) were non-vegetarian. The baseline characteristics of the participants including the prevalence of conventional risk factors is shown in table 1.
Table 1: Baseline characteristics of participants.
| Characteristics | Frequency |
|---|---|
| Hypertension | 39 |
| Diabetes | 29 |
| Smoking | 18 |
| Dyslipidemia | 10 |
| Family history of CVD | 6 |
Mean blood pressure and body mass index (BMI) of participants were 141.25±23.48/84.82±16.05 mmHg and 25.27±3.44 (range 19.8-34) kg/m2 respectively.
Among the participants of ACS 36 (50.70%) were of STEMI, 16 (22.53%) were of NSTEMI and 19 (26.70%) were of UA which is shown in figure 2.
Chest pain was present in 54 (76.05%) participants, dyspnea in 28 (39.43%), sweating in 15 (21.12%) and nausea/vomiting in 8 (11.26%). Similarly palpitation was present in 7 (9.85%), and epigastric pain in 13 (18.30%). A total of 7 (9.85%) gave history of pre-syncope/ syncope and 6 (8.45%) complained of altered mental status. The chief complaints of participants are shown in table 2.
Table 2: Chief complaints of participants.
| Chest pain | 54 | 76.05% |
|---|---|---|
| Dyspnea | 28 | 39.43% |
| Sweating | 15 | 21.12% |
| Nausea/vomiting | 8 | 11.26% |
| Palpitation | 7 | 9.85% |
| Epigastric pain | 13 | 18.30% |
| Pre-syncope / syncope | 7 | 9.85% |
| Altered mental status | 6 | 8.45% |
Linear regression analysis revealed significant correlation of smoking and types of ACS with gender (R=0.60). Other tested variables showed no significant correlation with gender. The analysis of tested variables and their P values are shown in table 3.
Table 3: Linear regression analysis report including P values of variables in relation to gender.
| Variables | Male (40 No.) | Female (31 No.) | P value |
|---|---|---|---|
| Age (Mean±SD years) | 79.32±3.25 | 81.61±4.65 | 0.089 |
| Chest pain (No.) | 29 | 25 | 0.107 |
| Dyspnea (No.) | 16 | 12 | 0.462 |
| Sweating (No.) | 10 | 5 | 0.621 |
| Nausea/vomiting (No.) | 5 | 3 | 0.089 |
| Palpitation (No.) | 4 | 3 | 0.199 |
| Epigastric pain (No.) | 9 | 4 | 0.878 |
| Pre-syncope / syncope (No.) | 5 | 2 | 0.399 |
| Altered mental status (No.) | 4 | 2 | 0.12 |
| Hypertension (No.) | 22 | 17 | 0.427 |
| Diabetes (No.) | 15 | 14 | 0.856 |
| Smoking (No.) | 14 | 4 | 0.02 |
| Dyslipidemia (No.) | 5 | 5 | 0.319 |
| Family history of CVD (No.) | 4 | 2 | 0.706 |
| Non Veg. Diet (No.) | 33 | 25 | 0.379 |
| BMI (Mean±SD kg/m2) | 24.72±3.13 | 25.98±3.74 | 0.059 |
| Types of ACS (No.) STEMI NSTEMI UA | 25 9 6 | 11 7 13 | 0.001 |
Discussion
In a study by Paudel et al. the total of 53.8% of participants of ACS of age more than 65 years were male and 46.2% were female. 12 The average age was 80 years in a study similarly to ours done on late elderly of age more than 75 years by Morici et al. and 60.5% of their participants were male, which was similar to our findings. 7
Mean age of participants of this study was 80.32±4.05 years and 56.33% were male. Chest pain was the most common presenting complaints of our participants and it was present in 76.05%. Dyspnea was present in 39.43%. Sweating and epigastric pain was present in 21.12% and 18.30% respectively. Presyncope / syncope was present in 9.85% and altered mental status was present in 8.45%. We found 54.92% hypertensive, 40.84% diabetic, 25.35% smoker, 14.08% dyslipidemic in our study.
Hypertension was present in 55%, DM in 30%, smoking in 20% and dyslipidemia in 35% of elderly MI of age ≥ 75 years in a study by Goch et al. 13 Hypertension was present in 71.6% of STEMI and 81% of Non ST elevation acute coronary syndrome
(NSTACS), DM was present in 25.4% of STEMI and 31.7% of NSTEACS and 10.6% of STEMI and 8% NSTEACS were smoker in a study by Morici et al. 7
Linear regression analysis revealed significant correlation of smoking and type of ACS with gender. We didn't find any significant correlation of other tested variables in between the male and female genders of ACS in late elderly. Tai et al. also reported significant correlation of smoking and types of ACS (STEMI vs. NSTEACS) in between male and female in elderly patients of age ≥ 75 years. Men had higher prevalence of smoking and number of STEMI was more in male compared to female. They found DM significantly more common in female. 15 Dong et al. also showed excess risk of ACS associated with diabetes in women than in men.16 Though, we did not find significant difference in DM in late elderly in relation to gender, authors have suggested further work on it. 16
In a study by Su et al. chest pain was present in 59.6%, dyspnea in 40.4%, sweating in 17.5% epigastric pain in 14% and syncope in 3.5% in elderly patients of age 65 years and above. 14 Chest pain was present in 47.5% and dyspnea/fatigue in 45% of patients of MI of age ≥ 75 in a study by Goch et al. 13 A study by Leonardi et al. have stated that though atypical presentations of ACS are common in elderly, chest pain is the most frequent presenting symptoms which is in accordance with our findings. 3
This study tried to address on an important health issue of ACS in late elderly in our setup. This study has several limitations to mention. It was a single center study with limited sample and limited study duration. We encourage larger studies including more variables.
Conclusion
Nearly half of the participants of the present study were female, so ACS was plausibility common in late elderly female. Chest pain was the commonest complaints in elderly patients of ACS, but other symptoms like dyspnea, sweating, epigastric pain were also common. Few patients had pre-syncope / syncope and altered mental status as presenting complaints. Presence of these symptoms should raise the suspicion of ACS on elderly. Conventional risk factors of ACS were quite common. Gender showed positive correlation with type of ACS and smoking. This findings will help in recognizing and thus in managing elderly ACS more precisely in our context.
Source of funding
Conflict of interest
None
None
References
1. Messerli A, Zida KM. Interventions in the elderly: special considerations. In: Camm AJ, Luscher TF, Maurer G, et al, editors. The ESC Textbook of Cardiovascular Medicine. Volume 2. 3rd ed. New Delhi: Oxford University Press; 2019. p. 2981-2983.
2. Engberding N, Wenger NK. Acute Coronary Syndromes in the Elderly. F 1000 Research. 2017; 6:1791. https://doi. org/10.12688/f1000research.11064.1
3. Leonardi S, Bueno H, Ahrens I, Hassager C, Bonnefoy E, Lettino M. Optimised care of elderly patients with acute coronary syndrome. European Heart Journal: Acute Cardiovascular Care. 2018; 7(3): 287-295. https://doi. org/10.1177/2048872618761621
4. Padilla IM, Martı´n-Asenjo R, Bueno H. Management of Acute Coronary Syndromes in Geriatric Patients. Heart, Lung and Circulation. 2017; 26: 107–113. https://doi.org/10.1016/j. hlc.2016.07.008
5. Dai X, Whitehead JB, Alexander KP. Acute coronary syndrome in the older adults. Journal of Geriatric Cardiology. 2016; 13: 101-108. https:// doi:10.11909/j.issn.1671-5411.2016.02.012
6. Savonitto S, Morici N, De Servi S. Treatment of Acute Coronary Syndromes in the Elderly and in Patients With Comorbidities. Rev Esp Cardiol. 2014; 67(7):564-573. https:// doi.org/10.1016/j.recesp.2014.02.010
7. Morici N, Savonitto S, Ferri LA, Grosseto D, Bossi I, Sganzerla P, et al. Outcomes of Elderly Patients with ST-Elevation or Non-ST-Elevation Acute Coronary Syndrome Undergoing Percutaneous Coronary Intervention. The American Journal of Medicine. 2019; 132: 209-216. https://doi.org/10.1016/j. amjmed.2018.10.027
8. Alexander KP, Newby LK, Armstrong PW, Cannon CP, Gibler WB, Rich MW, et al. Acute Coronary Care in the Elderly, Part II ST-Segment–Elevation Myocardial Infarction A Scientific Statement for Healthcare Professionals From the American Heart Association Council on Clinical Cardiology. Circulation. 2007; 115:2570- 2589. https://doi.org/10.1161/ CIRCULATIONAHA.107.182616
9. Alexander KP, Newby LK, Cannon CP, Armstrong PW, Gibler WB, Rich MW, et al. Acute Coronary Care in the Elderly, Part I Non–ST-Segment–Elevation Acute Coronary Syndromes A Scientific Statement for Healthcare Professionals From the American Heart Association Council on Clinical Cardiology. Circulation. 2007; 115:2549-2569. https://doi.org/10.1161/ CIRCULATIONAHA.107.182615
10. Khot UN, Khot MB, Bajzer CT, Sapp SK, Ohman EM, Brener SJ, et al. Prevalence of Conventional Risk Factors in Patients With Coronary Heart Disease. JAMA. 2003; 290(7):898-904. https://doi:10.1001/jama.290.7.898
11. Kumar A, Cannon CP. Acute coronary syndromes: diagnosis and management, part I. Mayo Clin Proc. 2009; 84(10):917-38. https://doi: 10.1016/S0025-6196(11)60509-0
12. Paudel R, Panta OB, Paudel B, Paudel K, Pathak OK, Alurkar VM. Acute Coronary Syndrome In Elderly – The Difference Compared with Young in Intensive Care Unit of a Tertiary Hospital in Western Nepal. Journal of Clinical and Diagnostic Research. 2009; 3:1289-1296.
13. Goch A, Misiewicz P, Rysz J, Banach M. The Clinical Manifestation of Myocardial Infarction in Elderly Patients. Clin. Cardiol. 2001; 32(6):E46–E51. https://doi.org/10.1002/ clc.20354
14. Su PH, Chen PY, Lee SY, How CK, Chien DK, Chang WH. Comparison of clinical presentations and outcomes between adult and elderly acute myocardial infarction patients in emergency department. Health Technol. 2019; 3(7): 1-12. https://doi.org/10.21037/ht.2019.08.01
15. Tai S, Li X, Yang H, Zhu Z, Tang L, Fu L, et al. Sex Differences in the Outcomes of Elderly Patients with Acute Coronary Syndrome. Cardiology Research and Practice. 2020; 5091490: 1-8. https://doi.org/10.1155/2020/5091490
16. Dong X, Cai R, Sun J, Huang R, Wang P, Sun H, et al. Diabetes as a risk factor for acute coronary syndrome in women compared with men: a meta-analysis, including 10 856 279 individuals and 106 703 acute coronary syndrome events. Diabetes Metab Res Rev. 2017;33(5): E2887. https://doi: 10.1002/dmrr.2887
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Long-Term Relations Among Prosocial-Media Use, Empathy, and Prosocial Behavior
Prot, S. , Gentile, D. A. , Anderson, C. A. , Suzuki, K. , Swing, E. , Lim, K. M. , Horiuchi, Y. , Jelic, M. , Krahe, B. , Liuqing, W. , Liau, A. K. , Khoo, A. , Petrescu, P. D. , Sakamoto, A. , Tajima, S. , Toma, R. A. , Warburton, W. , Zhang, X. and Lam, B. C. P.
Author post-print (accepted) deposited in CURVE February 2016
Original citation & hyperlink:
Prot, S. , Gentile, D. A. , Anderson, C. A. , Suzuki, K. , Swing, E. , Lim, K. M. , Horiuchi, Y. , Jelic, M. , Krahe, B. , Liuqing, W. , Liau, A. K. , Khoo, A. , Petrescu, P. D. , Sakamoto, A. , Tajima, S. , Toma, R. A. , Warburton, W. , Zhang, X. and Lam, B. C. P. (2014) Long-Term Relations Among Prosocial-Media Use, Empathy, and Prosocial Behavior. Psychological Science, volume 25 (2): 358-368
http://dx.doi.org/10.1177/0956797613503854
ISSN 0956-7976
ESSN 1467-9280
DOI 10.1177/0956797613503854
Copyright © and Moral Rights are retained by the author(s) and/ or other copyright owners. A copy can be downloaded for personal non-commercial research or study, without prior permission or charge. This item cannot be reproduced or quoted extensively from without first obtaining permission in writing from the copyright holder(s). The content must not be changed in any way or sold commercially in any format or medium without the formal permission of the copyright holders.
This document is the author's post-print version, incorporating any revisions agreed during the peer-review process. Some differences between the published version and this version may remain and you are advised to consult the published version if you wish to cite from it.
Long-Term Relations between Prosocial Media Use, Empathy and Prosocial Behavior
Sara Prot, Douglas A. Gentile, Craig A. Anderson
Iowa State University, USA
Kanae Suzuki
University of Tsukuba, Japan
Edward Swing
Iowa State University, USA
Kam Ming Lim
National Institute of Education, Singapore
Yukiko Horiuchi
Ochanomizu University, Japan
Margareta Jelic
University of Zagreb, Croatia
Barbara Krahé
University of Potsdam, Germany
Wei Liuqing
Beijing Normal University, China
Albert Liau, Angeline Khoo
National Institute of Education, Singapore
Poesis Diana Petrescu
West University Of Timisoara, Romania
Akira Sakamoto
Ochanomizu University, Japan
Sachi Tajima
Kantogakuen University, Japan
Roxana Andreea Toma
West University Of Timisoara, Romania
Wayne Warburton
Macquarie University, Australia
Xuemin Zhang
Beijing Normal University, China
Ben Chun Pan Lam
Iowa State University, USA
Author Note
Correspondence concerning this article should be addressed to:
Sara Prot, Department of Psychology, Iowa State University
W112 Lagomarcino Hall, Ames, IA 50011-3180
Email: email@example.com
2
Abstract
Despite recent growth of research on prosocial media effects (e.g., Greitemeyer, 2011a & b), processes underlying these effects are not well understood. Two studies explored theoretically relevant mediators and moderators of prosocial media effects on helping. Study 1 examined associations among prosocial and violent media use, empathy, and helping with participants from 7 countries. Prosocial media use was positively associated with helping. This effect was mediated by empathy and was similar across cultures. Study 2 explored longitudinal relations among prosocial video game use, violent video game use, empathy, and helping in a large sample of Singaporean children and adolescents measured three times across two years. Path analyses yielded significant longitudinal effects of prosocial and violent video game use on prosocial behavior through empathy. Latent growth curve modeling revealed significant mediated effects of change in video game use on change in helping through change in empathy over the two-year period.
Keywords: mass media, cross cultural differences, social behavior, prosocial media, violent media, prosocial behavior, empathy, helping, General Learning Model
Long-Term Relations between Prosocial Media Use, Empathy and Prosocial Behavior
Recent years have witnessed increasing interest in positive effects of prosocial media. A growing research literature demonstrates that prosocial media can foster prosocial interactions. Significant effects of prosocial media on helping have been demonstrated for a variety of media, including television shows (Mares & Woodard, 2005), video games (Saleem, Anderson, & Gentile, 2012a) and music lyrics (Greitemeyer, 2009). 1 For example, Gentile, Anderson, Yukawa, et al. (2009) found adolescents' prosocial video game use to be related to more frequent helping, cooperation and sharing, in cross-sectional, longitudinal, and experimental studies. Other studies have shown significant associations between watching prosocial television programs and prosocial acts in real life (e.g. Rosenkoetter, 1999; Sprafkin & Rubinstein, 1979).
Experimental studies demonstrate short-term causal effects of prosocial media. For example, Greitemeyer and Osswald (2010) showed that playing prosocial video games made participants more likely to help researchers pick up fallen pencils, agree to participate in further experiments and come to the aid of a female experimenter who was being harassed by an ex-boyfriend.
Longitudinal studies suggest that habitual use of prosocial media can cause long-term increases in prosocial behavior. Gentile et al. (2009) found that prosocial video game play predicted increases in prosocial behavior over a period of 3 to 4 months. D. Anderson et al. (2000) found that children who watched the television show Blue's Clues showed significantly greater increases in prosocial behaviors than nonviewers. Together, correlational, experimental, and longitudinal studies in this area provide evidence of prosocial media effects on prosocial behavior.
These effects can be understood within the framework of the General Learning Model, an extension of the General Aggression Model (Anderson & Bushman, 2002; Barlett & Anderson, in press; Buckley & Anderson, 2006; Gentile, Groves, & Gentile, in press; Maier & Gentile, 2012). The GLM is a metatheoretical framework that integrates key ideas from several more specific models, including Social Learning Theory and Social Cognitive Theory (Bandura, 1973; 1983), script theory (Huesmann, 1986; 1998), cognitive-neoassociation theory (Berkowitz, 1984), cultivation theory (Comstock & Scharrer, 2007), desensitization theory (Carnagey, Anderson, & Bushman, 2007), and social information processing theory (Crick & Dodge, 1994). It provides a general framework for understanding how long-term beliefs, attitudes and affective traits are developed from various life experiences. People learn from environmental interactions, including from the media, and they do so through several learning mechanisms. Media content determines much of what is learned. Violent media are likely to increase the probability of aggressive behavior and decrease the probability of prosocial behavior because of changes in attitudes, beliefs, affect and scripts. Prosocial media are expected to decrease the likelihood of aggression and increase the likelihood of prosocial behavior. In short-term contexts, prosocial media are thought to affect behavior by priming prosocial cognitions (including scripts) and increasing positive affect (Saleem, Anderson, & Gentile, 2012a; 2012b). In long-term contexts, prosocial media are posited to affect behavior through long-term changes in beliefs, attitudes, behavioral scripts and affective traits.
Although prosocial media effects have been demonstrated, processes underlying these effects are less extensively researched and less understood than processes underlying violent media effects (e.g. Anderson et al., 2003). At present, there is empirical support for short-term predictions of the GLM concerning prosocial media effects; several experimental studies
demonstrate short-term effects of prosocial media on helping using diverse samples, manipulations and measures (Barlett & Anderson, in press). However, no studies have examined long-term mediators of prosocial media effects on helping. Empirical evidence is also lacking concerning potential moderators of these relationships. Whereas several studies indicate that age, culture and parental involvement in media habits may significantly moderate media violence effects (e.g. Anderson et al., 2003; Anderson, Gentile, & Buckley, 2007), no comparable data are available for prosocial media effects.
To address these gaps, we conducted two studies on potential mediators and moderators of prosocial media effects on helping. Study 1 examined relations among prosocial media use, empathy and helping with participants from seven countries. We hypothesized that prosocial media use would be associated with more frequent helping (defined here as voluntary behavior intended to benefit another) and that this effect would be at least partially mediated by empathy (the tendency to be aware of and react to the mental and emotional states of other people; Davis, 1983). Given past findings of prosocial media effects on empathy and prosocial behavior in short-term contexts (e.g. Greitemeyer, 2009; Greitemeyer, Osswald, & Brauer, 2010), we focused on empathy as a potential key mediator of habitual prosocial media use on prosocial behavior in the long-term. Study 1 also explored culture, age and sex as potential moderators. Based on the General Learning Model, we expected prosocial media effects on empathy and prosocial behavior to generalize across gender, age and culture.
Study 2 examined relations among prosocial and violent media use, empathy and helping with a longitudinal sample of 3,034 children and adolescents measured three times over a period of 2 years. The longitudinal design allows for stronger tests of our causal mediation model. We hypothesized that prosocial media use would predict increases in trait empathy and prosocial behavior over time.
STUDY 1
Method
Participants
A cross-sectional correlational study explored relations among prosocial media use, empathy and prosocial behavior across cultures. Samples were obtained in seven countries: Australia (426 participants), China (203 participants), Croatia (438 participants), Germany (200 participants), Japan (395 participants), Romania (233 participants) and the U.S. (307 participants). The total sample of 2,202 adolescents and young adults was 40% male with a mean age of 21 years, SD = 5.6.
Measures
Media use was measured using a version of the General Media Habits Questionnaire (Anderson & Dill, 2000; Gentile et al., 2004). Participants listed their three favorite television shows, movies and video games and rated: (1) frequency of use for each title (9 items rated on a 5-point scale from "Watched/played once a month or less" to "Watched/played 5 or more times a week"), (2) the amount of prosocial content present in each title (9 items, example item "How often do characters help each other?" rated on a 7-point scale from "Never" to "All the time"), and (3) the amount of violent content present in each title (9 items, example item "How often do characters try to physically injure each other?" rated on a 7-point scale "Never" to "All the time"). Each favorite media title was named and rated separately. Such self-ratings of media content have been shown to correlate highly with and yield validities similar to expert ratings (Gentile et al., 2009; Busching, Gentile, Krahé, et al., in press).
7
Empathy was measured by the empathic concern and perspective taking subscales from the Interpersonal Reactivity Index (Davis, 1980, 1983; 14 items). The IRI measures empathy as a stable personality characteristic. An example item is "Before criticizing somebody, I try to imagine how I would feel if I were in their place". Items were rated on a scale from 1 ("Does not describe me well") to 5 ("Describes me very well").
Prosocial behavior was measured using the Brief Prosocial Scale (adapted from Cheung, Ma, & Shek, 1998; 10 items). An example item is "I try to be helpful to people even if I don't expect to see them ever again". Items were rated on a scale from 1 ("Extremely uncharacteristic of me") to 5 ("Extremely characteristic of me").
Also assessed were total screen time, sex, age, race, GPA, SES, and parental education. Participants responded to the questionnaire either online or in face-to-face interviews by trained research assistants, based on methods appropriate to each country.
Results and Discussion
Preliminary Analyses
To calculate total prosocial media exposure, prosocial content ratings for each favorite television show, movie and video game were multiplied by the corresponding amount of time spent watching or playing and then averaged across these 9 products. Violent media exposure was calculated similarly. Total screen time was computed by summing participants' ratings of time spent watching television shows, movies and playing video games. Descriptive statistics are shown in Table 1. Correlations between main variables are shown in Section 1 of the supplemental materials. Based on geographical location and scores on the cultural dimension of individualism-collectivism (Hofstede, 1980, 2001), nations were divided into three cultural
9
groups: individualistic Western countries (Australia, Germany and the U.S.), collectivistic East European countries (Croatia, Romania) and collectivistic East Asian countries (China, Japan).
Multigroup confirmatory factor analyses were conducted with Mplus 6.1 to test the measurement equivalence of empathy and prosocial behavior across cultural groups. Missing data were treated using Full Information Maximum Likelihood estimation. Because of the large sample size, differences in Comparative Fit Index were used to test invariance instead of nested Chi square tests (Cheung & Rensvold, 2002). Differences in the CFI of an absolute value less than .01 suggest invariance. A measurement model of empathy and prosocial behavior across culture without parameter constraints showed adequate model fit ( 2 = 121.74, df = 32, p < .01; TLI = .98; CFI =.98; RMSEA = .06, 90% CI = .05 – .08). Based on the results of cross-group equality-constrained models (shown in Section 2 of the supplemental materials), metric equivalence was established for the measures of empathy and prosocial behavior across groups. In analyses, the forms and factor loadings of empathy and prosocial behavior were constrained to be equal across culture.
Main Results
A structural model of media use, empathy and prosocial behavior was examined (Figure 1). Within each group, prosocial media consumption was linked to higher levels of prosocial behavior; this association was fully mediated by empathy. Constraining the indirect effects of prosocial media use on prosocial behavior through empathy to be equal across groups resulted in a significantly poorer model fit ( CFI = .03). Paired comparisons showed significant differences between all three groups ( CFI > .01 for all three paired comparisons). Thus, differences exist in prosocial media effects between cultural groups. Nonetheless, the indirect effects of prosocial media use on prosocial behavior through empathy were of similar magnitudes in all three groups (standardized indirect effect of 0.38 Western countries, 0.21 for East European countries and 0.28 for East Asian countries, all ps < 0.01). These results suggest considerable cross-cultural generalization of the links between prosocial media use, empathy, and prosocial behavior.
To examine sex as a potential moderator, three series of multigroup models were run comparing results for men and women within each culture group. As in the previous model, prosocial media use was entered as a predictor of helping, with empathy as a mediator, and with total screen time, violent media use, and age statistically controlled. Good model fit was obtained for an unrestricted multigroup model (Western sample: 2 = 146.06, df = 60, p < .01; TLI = .96; CFI =.97; RMSEA = .06, 90% CI = .04 – .08; East European sample: 2 = 107.58, df = 60, p < .01; TLI = .96; CFI =.97; RMSEA = .05, 90% CI = .03 – .06; East Asian sample: 2 = 98.04, df = 60, p < .01; TLI = .95; CFI =.96; RMSEA = .05, 90% CI = .03 – .06). Constraining path coefficients from prosocial media use to empathy and from empathy to prosocial behavior to be equal across sex did not result in a significant reduction in model fit (Western sample: CFI = .00; East European sample: CFI = .00; East Asian sample: CFI = .00). Thus, prosocial media effects were similar for men and women.
To examine age as a moderator, interaction terms were added to the model between age and prosocial media use as well as age and violent media use. No significant interactive effects of age and media habits on empathy or helping were found (all ps > .05).
Discussion
Study 1 results are consistent with a causal theoretical model linking prosocial media use to helping behavior through changes in empathy, but of course the cross-sectional nature of these data precludes strong causal conclusions. Therefore, we conducted a 2-year 3-wave longitudinal study to provide a more thorough test.
STUDY 2
Method
Participants
The initial sample consisted of 3,034 children and adolescents from six primary and six secondary schools in Singapore (73% male, average age 11.2 years, SD = 2.1). Data were collected annually. Samples of 3,034, 2,360 and 2,232 participants were collected in wave 1, wave 2 and wave 3, respectively. Questionnaires were administered in class by teachers who received detailed instructions from research personnel. The response rate was 99% at wave 1, 87.5% at wave 2 and 85% at wave 3.
Measures
For practical reasons, we assessed only video game habits. At each wave, participants listed their three favorite video games and indicated how often they play each game (2 items, one for school days, one for weekends): "On a usual school day (Monday through Friday) (weekend/Saturday and Sunday), how many hours do you play this game?" using 16 time choices ranging from "None" to "More than 10 hours"). Participants also indicated how frequently each of their listed games contains violent or prosocial themes (4 items, example violent item "How often do you shoot or kill creatures in this game?"; example prosocial item "How often do you help others in this game?" Each item was rated on a 4-point scale from "Never" to "Almost always"). Children who reported playing no videogames received a score of 0 for both prosocial and violent game exposure.
The Children's Empathic Attitudes Questionnaire (Funk et al., 2008; 16 items) measured trait empathy. An example item is "I would feel bad if my mother's friend got sick". Items were rated on a 3-point scale ("No" ,"Maybe" and "Yes").
The helping and cooperation subscales of the Prosocial Orientation Questionnaire (POQ; Cheung, Ma & Shek, 1998; 18 items) measured helping. An example item is "I would spend time and money to help those in need" (rated on a scale from 1 "Strongly disagree" to 5 "Strongly agree"). Also assessed were sex, age, race, SES, school grades, and parental education.
Results and Discussion
Preliminary Analyses
Table 2 displays basic statistics for the main measures. At each wave, prosocial media use was positively related to empathy (r1 = .10, r2 = .09, r3 =.08, all ps < .01) and to prosocial behavior (r1 = .09, r2 = .08, r3 =.06, all ps < .01). Violent media use was negatively related to empathy (r1 = -.15, r2 = -.14, r3 = -.14, all ps < .01) and to prosocial behavior (r1 = -.13, r2 = -.13, r3 = -.13, all ps < .01). Correlations of the main variables are in supplemental materials Section 3.
Longitudinal Results
An autoregressive path model using Mplus 6.1 was run with prosocial and violent video game play at time 1 as predictors of prosocial behavior at time 3, with empathy at time 2 as a mediator (model shown in Figure 2). Missing data were treated using Full Information Maximum Likelihood estimation. Initial levels of prosocial behavior, empathy, total amount of video game time and sex were included as predictors. The model yielded a good fit ( 2 = 9.05, df = 5, p > .05; TLI = 0.98; CFI = .99; RMSEA = .02, 90% CI = .00 – .03). Prosocial video game use at time 1 had a significant positive indirect effect on prosocial behavior at time 3 through empathy at time 2. Violent game use at time 1 had the opposite effect on prosocial behavior at time 3, through its effect on empathy at time 2. Two alternative path models were tested to explore the possibility of reverse causal effects between prosocial behavior and media habits (see supplemental materials Section 4). No evidence was found of such effects. However, the indirect effects of prosocial and violent video game use on later prosocial behavior through empathy remained significant. These longitudinal results strongly support our causal theoretical model.
To check for potential effects of sex as a moderator, a multigroup path model was conducted. Good model fit was obtained ( 2 = 16.47, df = 10, p > .05; TLI = 0.971; CFI = .99; RMSEA = .02, 90% CI = .00 – .04). For both boys and girls, prosocial media use predicted greater helping indirectly through its effect on empathy. Similarly, violent media use predicted less helping through its effect on empathy in both groups. Constraining path coefficients to be equal across sex did not result in a significant reduction in model fit ( CFI = .00). Thus, the longitudinal media effects on helping were essentially equivalent for males and females.
To examine age as a moderator, age X media use interaction terms were added to the model. Interactive effects of age and media habits on empathy and prosocial behavior were not significant (all ps > .05).
Latent Growth Curve Results
Latent growth curve modeling further examined these relations over time (Figure 3). Latent growth curve modeling does not test causal relations, as did the autoregressive path models described above, but it can provide useful insights into relations of variables over time once a causal order has been established. Good model fit was obtained ( 2 = 145.9, df = 46, p = < .01; TLI = .98; CFI = .99; RMSEA = .03, 90% CI = .02–.03). Higher initial levels of prosocial video game use predicted higher initial levels of prosocial behavior (standardized indirect effect through the intercept of empathy equaling .33, p < .01). In contrast, the initial level of violent video game use predicted lower initial levels of prosocial behavior (standardized indirect effect through the intercept of empathy equaling -.61, p < .01). The rate of change in prosocial gaming had both a positive direct effect on change in helping (standardized effect of .66, p < .01) and an indirect effect through change in empathy (standardized effect of .20, p < 0.02). In comparison, the rate of change in violent video gaming negatively predicted change in prosocial behavior through change in empathy (standardized effect of -.22, p < .02).
GENERAL DISCUSSION
Main Findings and Implications
Two main goals of the present research were to explore mediators and moderators of long-term prosocial media effects on prosocial behavior. Both studies demonstrated that prosocial media use is positively associated with prosocial behavior in real life. More importantly, both studies found empathy to be a key mediator of prosocial media effects. Longitudinal findings from Study 2 are especially noteworthy because they demonstrate simultaneous positive long-term effects of prosocial media and negative long-term effects of violent media on later prosocial behavior. Most important of all, both the prosocial and the violent media effects on prosocial behavior were mediated by changes in empathy, and were evident even after controlling for relevant covariates.
Another interesting finding from both studies was the effect of total time, independent of prosocial or violent content. In both studies, total media time was associated with less prosocial behavior, mediated through empathy. At first glance, the total media time effect on prosocial behavior might be seen as the simple result of more media time automatically means less time is available to help others. However, the fact that this effect was mediated by empathy suggests that some other process must be underlie this effect. Perhaps excessive entertainment media time leads to less socialization opportunities in which one can learn empathy for others.
On the whole, the present results complement past findings from short-term experimental studies (e.g. Greitemeyer & Osswald, 2009; 2010; Saleem, Anderson & Gentile, 2012a; 2012b)
and suggest that short-term effects of prosocial and violent media accumulate, bringing about lasting changes in behavioral patterns and personality traits. These findings support long-term predictions of the General Learning Model, the General Aggression Model, and other socialcognitive models of personality.
Our findings advance theory in several ways. Study 1 is the first to directly compare prosocial media effects on empathy and helping across cultures. It demonstrated yielded some intercultural differences, but also showed mostly similarities in prosocial media effects. It also is the first to demonstrate empirically that trait empathy appears to mediate long term effects of prosocial media on helping. Another major theoretical advance is the finding from Study 2 over a two year period, trait empathy was significantly affected by amount of time youths spent consuming prosocial and violent. These findings provides novel evidence that entertainment media can not only cause short-term changes in empathy in laboratory studies, but also can lead to stable changes in empathy as a personality trait.
Other findings of note concern potential moderators of prosocial media effects on prosocial behavior. In Study 1, prosocial media consumption was found to predict higher levels of prosocial behavior in samples from Western, East European and East Asian countries. Empathy was shown to significantly mediate this relationship in all three groups. Although multigroup modeling demonstrated significant differences in magnitude of prosocial media effects in Western, East European and East Asian countries, the direction of prosocial media links with helping was the same across groups. In short, the links between prosocial media use and prosocial behavior generalize across cultures. The cross-cultural differences that did appear may be the result of different regulations (e.g., social norms) and contexts (e.g., relationship with the target) of prosocial behaviors in individualistic and collectivistic cultures (Miller, Bersoff &
Harwood, 1990; Yamagishi & Yamagishi, 1994). This speculation suggests future research directions.
Potential effects of sex as a moderator were examined in both studies. In both, links between prosocial media use, empathy and helping were similar for males and females. Findings of robust media effects in different groups are consistent with findings from the media violence literature (e.g. Anderson et al., 2003, 2007). The cross-culture, cross-age, and cross-gender similarity of the media effects in the present studies further suggests that the mechanisms through which media affect behavior are fairly general.
Limitations
Both studies were based on self-reports, so these findings may have been influenced by selfreport biases. In future studies, it may be useful to employ other measures of media use, empathy and prosocial behaviors (such as informant reports or observational measures, although it seems unlikely that other reporters would be better at reporting someone else's media use or empathy). It is possible that both social desirability and self-enhancement tendencies influence self-reports of prosocial behavior. However, past research supports the construct and predictive validity of the prosocial behavior scale used in these two studies (e.g. Cheung, Ma & Shek, 1998; Gentile et al., 2009). Furthermore, such measurement error would tend to weaken the observed relationship between prosocial media use and prosocial behavior.
The obtained effect sizes of prosocial media effects on trait empathy and helping found in both studies were small. However, effects of this magnitude are to be expected given the longterm stability of personality traits and the many factors that may influence them (Caspi, Roberts, & Shiner, 2005; Roberts, Walton, & Viechtbauer, 2006). The fact that a single environmental factor such as prosocial media consumption was found to predict significant changes in trait
empathy and prosocial behavioral tendencies over time is noteworthy. Furthermore, the positive associations among the multiple predictors may well have led to underestimations of the true effect sizes, a necessary but conservative statistical consequence of such data (Prot & Anderson, 2013).
Conclusion
This research provides evidence that prosocial media use can lead to long-term increases in trait empathy and helping. Furthermore, these relationships generalized across sex, age and culture. These findings underscore the fact that media are powerful teachers. Just as media violence exposure can lead to negative outcomes such as desensitization and increased aggression, using prosocial media can lead to positive changes such as increased empathy and helping. Coupled with the rapid increases in media use among youth in developed countries, our studies suggest that accumulation of media effects has the potential to significantly alter important interpersonal behaviors in both positive and negative ways. Knowledge of these longterm effects may help parents, policy makers, and other concerned citizens make decisions about what kind of society they want for the future and how to create it.
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1
Table 1 Means, standard deviations and reliabilities for the main scales of interest, Study 1.
Table 2 Means, standard deviations and reliabilities for the main scales of interest, Study 2.
| | | Time 1 | | Time 2 | | Time 3 | |
|---|---|---|---|---|---|---|---|
| | Items | | M (SD) | | M (SD) | | |
| | | | | | | | M (SD) |
| Prosocial video | | | | | | | |
| | 6 | 0.85 | 1.34(0.87) | 0.84 | 1.28(0.88) | 0.85 | 1.35(0.89) |
| game use | | | | | | | |
| Violent video | | | | | | | |
| | 6 | 0.75 | 1.39(0.91) | 0.75 | 1.27(0.90) | 0.76 | 1.15(0.91) |
| game use | | | | | | | |
| Total video | | | | | | | |
| | 6 | 0.88 | 3.53(2.84) | 0.89 | 4.05(2.47) | 0.89 | 3.88(2.42) |
| game play time | | | | | | | |
| Empathy | 16 | 0.86 | 2.32(0.40) | 0.87 | 2.32(0.39) | 0.89 | 2.33(0.39) |
| Prosocial | | | | | | | |
| | 18 | 0.84 | 3.05(0.45) | 0.84 | 3.05(0.43) | 0.84 | 3.05(0.41) |
| behavior | | | | | | | |
1 We use "helping" as synonymous with "prosocial behavior" throughout this article, for simplicity of exposition.
|
1
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1 This course provides students the opportunity to demonstrate knowledge and skills that they have developed during the program in a culminating project that, in turn, may showcase their interests and abilities as they seek employment beyond graduation. In addition, students will self-assess their relative progress towards the intended learning outcomes of the program.
Doctor of Education (D.ED.)
Requirements listed here are in addition to Graduate Council policies listed under GCAC-700 Professional Degree Policies (https:// gradschool.psu.edu/graduate-education-policies/).
The D.Ed. requires a minimum of 90 credits, of which at least 30 credits must be earned in residence at the University Park campus. A maximum of 30 credits from a completed master's degree earned at an institution that does not grant a doctorate in Higher Education may be accepted towards this minimum, subject to restrictions outlined in GCAC-309 Transfer Credit (http://gradschool.psu.edu/graduateeducation-policies/gcac/gcac-300/transfer-credit/). A maximum of 60 credits beyond the baccalaureate may be accepted towards this minimum, subject to restrictions outlined in GCAC-309 Transfer Credit (http://gradschool.psu.edu/graduate-education-policies/gcac/gcac-300/ transfer-credit/).
Total Credits
60
In addition, the program may require a 9-credit internship depending on students' previous professional experiences in higher education administration. D.Ed. students must pass a qualifying examination, a comprehensive written and oral examination, and a final oral examination (the dissertation defense). Their dissertation must also be accepted by the doctoral committee, the head of the graduate program, and the Graduate School.
Doctor of Philosophy (Ph.D.)
Requirements listed here are in addition to Graduate Council policies listed under GCAC-600 Research Degree Policies. (https:// gradschool.psu.edu/graduate-education-policies/)
A minimum of 51 credits is required:
Code
Title
Credits
Total Credits
51
Ph.D. students must pass a qualifying examination, a comprehensive written and oral examination, and a final oral examination (the dissertation defense). Their dissertation also must be accepted by the Ph.D. committee, the head of the graduate program, and the Graduate School.
Dual-Titles
Dual-Title M.Ed., D.Ed., and Ph.D. in Comparative and International Education
Requirements listed here are in addition to requirements listed in GCAC-208 Dual-Title Graduate Degree Programs (https:// gradschool.psu.edu/graduate-education-policies/gcac/gcac-200/ gcac-208-dual-titles/).
Admission Requirements
Students must apply and be admitted to the graduate program in Higher Education and The Graduate School before they can apply for admission to the dual-title degree program. After admission to their primary program, students must apply for admission to and meet the admissions requirements of the Comparative and International Education dual-title program. Refer to the Admission Requirements section of the Comparative and International Education Bulletin page (http:// bulletins.psu.edu/graduate/programs/majors/comparative-internationaleducation/). Doctoral students must be admitted into the dual-title degree program in Comparative and International Education prior to taking the qualifying examination in their primary graduate program.
Degree Requirements
To qualify for the dual-title degree, students must satisfy the degree requirements for the degree they are enrolled in Higher Education. In addition, students must complete the degree requirements for the dual-title in Comparative and International Education, listed on the Comparative and International Education Bulletin page (http:// bulletins.psu.edu/graduate/programs/majors/comparative-internationaleducation/). Some courses may satisfy both Higher Education and Comparative and International Education degree requirements. Final course selection must be approved by the student's Ph.D. committee.
The qualifying examination committee for the dual-title Ph.D. degree will be composed of Graduate Faculty from Higher Education and must include at least one Graduate Faculty member from the Comparative and International Education program. Faculty members who hold appointments in both programs' Graduate Faculty may serve in a combined role. There will be a single qualifying examination, containing elements of both Higher Education and Comparative and International Education. Dual-title graduate degree students may require an additional semester to fulfill requirements for both areas of study and, therefore, the qualifying examination may be delayed one semester beyond the normal period allowable.
In addition to the general Graduate Council requirements for Ph.D. committees (http://gradschool.psu.edu/graduate-education-policies/ gcac/gcac-600/phd-dissertation-committee-formation/), the Ph.D. committee of a Higher Education and Comparative and International Education dual-title Ph.D. student must include at least one member of the Comparative and International Education Graduate Faculty. Faculty members who hold appointments in both programs' Graduate Faculty may serve in a combined role. If the chair of the Ph.D. committee is not also a member of the Graduate Faculty in Comparative and International Education, the member of the committee representing Comparative and International Education must be appointed as co-chair. The Comparative and International Education representative on the student's Ph.D. committee will develop questions for and participate in the evaluation of the comprehensive examination.
Students in the dual-title program are required to write and orally defend a dissertation on a topic that is approved in advance by their Ph.D. committee and reflects their original research and education in Higher Education and Comparative and International Education. Upon completion of the doctoral dissertation, the candidate must pass a final oral examination (the dissertation defense) to earn the Ph.D. degree. The dissertation must be accepted by the Ph.D. committee, the head of the graduate program, and the Graduate School.
Joint Degrees
Joint J.D/M.Ed., D.Ed., and Ph.D. with Penn State Law
Requirements listed here are in addition to requirements listed in GCAC-211 Joint Degree Programs (https://gradschool.psu.edu/graduateeducation-policies/gcac/gcac-200/gcac-211-joint-degree-programs/).
Penn State Law (PSL) and the Higher Education (HIED) Program offer a joint degree program leading to a Juris Doctor (J.D.); and either a Master of Education (M.Ed.), a Doctor of Education (D.Ed.), or a Doctor of Philosophy (Ph.D.) in Higher Education.
Admission Requirements
Applicants to the joint degree program must apply and be admitted first to Penn State Law, and subsequently to the Higher Education graduate program. Admissions requirements and applications for admission for Penn State Law are listed in the J.D. Admissions (https:// pennstatelaw.psu.edu/penn-state-law-jd-admissions/) section of the Penn State Law website. The admission requirements for the Higher Education graduate program are listed on the Admission Requirements tab. When applying to the Higher Education graduate program, applicants must include two letters of recommendation from Penn State Law faculty members and a career statement. Applicants to the joint degree program may submit LSAT scores instead of GRE scores.
Residency
Students will normally spend four semesters in residence at PSL and as many additional semesters in residence as needed to complete the additional requirements for the pertinent HIED degree. Ph.D. candidates must arrange the sequence of semesters to ensure that they are in residence as full-time students in the HIED program for at least two consecutive semesters (Fall-Spring or Spring-Fall) excluding summer in a single twelve-month period.
Degree Requirements
Students must fulfill all requirements for each degree in order to be awarded that degree, subject to the double-counting of credits as outlined below. Degree requirements for the J.D. program are listed on the Penn State Law website (https://pennstatelaw.psu.edu/jd-degreerequirements/). Degree requirements for the Ph.D., D.Ed., and M.Ed. degrees are listed on the Degree Requirements tab.
Penn State Law
A maximum of twelve credits for HIED course work may be doublecounted for credit toward the J.D. degree at PSL. Students must obtain a grade satisfactory to PSL for the course work to be credited towards the J.D. degree. The following HIED courses may qualify for credit in PSL:
Code
Title
Credits
Higher Education
The courses that may be double-counted will be determined by the student's degree program. Normally a maximum of twelve credits of PSL
3
course work will be counted for credit for the minimum requirements for a master's degree, subject to approval by the student's advisory committee.
Sequence
The sequence of courses will be determined by the students and their advisors.
Recommended Program of Study and Advising
All students in the program will have two advisers, one from PSL and one from HIED. Periodic interaction between the two advisers is encouraged.
Tuition
Students will be charged the applicable PSL tuition to cover the J.D. program and the applicable graduate tuition to cover the HIED degree program. PSL tuition will be paid for the semesters in which the student is registered for PSL courses, and graduate tuition will be paid for the semesters in which the student is registered for graduate courses. A student may take up to one course (3 credit hours) per semester in the program where the student is not primarily registered without any change in tuition, but must pay additional tuition to the program that the student is not primarily registered if he or she wishes to take additional course work pursuant to that program during the semester.
Financial Aid and Assistantships
Decisions on financial aid and assistantships will be made by each school according to that school's procedures. Generally, assistantships and financial aid granted by HIED will not apply to time spent at PSL.
Fulfillment of Degree Requirements and Graduation
All courses in one program that will count toward meeting the requirements of the other program must be completed before the awarding of either degree. If students accepted into the joint degree program are unable to complete the J.D. degree, they are still eligible to receive the Higher Education degree if all Higher Education degree requirements have been satisfied.
Minor
A graduate minor is available in any approved graduate major or dualtitle program. The default requirements for a graduate minor are stated in Graduate Council policy GCAC-218 Minors (https://gradschool.psu.edu/ graduate-education-policies/gcac/gcac-200/gcac-218-minors/).
Student Aid
Graduate assistantships available to students in this program and other forms of student aid are described in the Tuition & Funding (https:// gradschool.psu.edu/funding/) section of the J. Jeffrey and Ann Marie Fox Graduate School's website. Students on graduate assistantships must adhere to the course load limits (https://gradschool.psu.edu/graduateeducation-policies/gsad/gsad-900/gsad-901-graduate-assistants/) set by the Fox Graduate School.
Courses
Graduate courses carry numbers from 500 to 699 and 800 to 899. Advanced undergraduate courses numbered between 400 and 499 may be used to meet some graduate degree requirements when taken by graduate students. Courses below the 400 level may not. A graduate student may register for or audit these courses in order to make up deficiencies or to fill in gaps in previous education but not to meet requirements for an advanced degree.
Higher Education (HIED) Course List (https://bulletins.psu.edu/universitycourse-descriptions/graduate/hied/)
Learning Outcomes
Master of Education (M.Ed.)
1. Demonstrate reading proficiencies to deal effectively with theoretical, empirical, and policy material in higher education.
2. Demonstrate writing proficiencies to analyze problems of practice, draw upon and apply concepts studied, and synthesize ideas into relevant and useful conclusions.
3. Demonstrate critical thinking skills that require suspended judgment and the application of relevant theory to varied areas of practice.
4. Demonstrate responsibility toward the goal of becoming a proactive, reflective, life-long learner.
5. Demonstrate the ability to collaborate with others to facilitate problem-solving and decision making through reflective practice.
6. Demonstrate an understanding of purpose, audience, and context in communication activities.
7. Demonstrate appropriate use of communication technologies.
8. Demonstrate an ability to draw upon key theories, concepts, and research findings to assess current issues and challenges facing higher education institutions.
9. Demonstrate the ability to collect and analyze data to improve practice in particular administrative areas of higher education.
10. Demonstrate an understanding of professional and ethical practice.
Doctor of Education (D.Ed.)
1. Distinguish various aspects of higher education—including perspectives on its past, present, and future.
2. Interpret and communicate knowledge of higher education that informs research, policy, and professional practice.
3. Demonstrate competence in designing and conducting applied research that results in, informs, and improves professional practice.
4. Identify and address ways in which power operates in higher education, and has been differentially distributed by race and by other marginalized social identities.
5. Utilize concepts, theories, and frameworks from education and other fields of inquiry in exploring and critically analyzing programs and practices in higher education.
6. Evaluate required competencies, needed preparation, and potential rewards relative to pursuing a range of career opportunities in all sectors of academia.
Doctor of Philosophy (Ph.D.)
1. Distinguish various aspects of higher education—including perspectives on its past, present, and future.
2. Interpret and communicate knowledge of higher education that informs research, policy, and professional practice.
3. Demonstrate competence in designing, conducting, and communicating (including in written form) research that generates new knowledge.
4. Identify and address ways in which power operates in higher education, and has been differentially distributed by race and by other marginalized social identities.
5. Utilize concepts, theories, and frameworks from education and other fields of inquiry in exploring and critically analyzing topics in higher education.
6. Evaluate required competencies, needed preparation, and potential rewards relative to pursuing a range of career opportunities in all sectors of academia.
Contact
Campus
University Park
Graduate Program Head
Adrienne Denise Dixson
Director of Graduate Studies (DGS) or Professor-in-Charge (PIC)
Karly Sarita Ford
Program Contact
Diane Lupp
400 Rackley Building
135 River Birch Road
University Park PA 16802
email@example.com (814) 863-2690
Program Website
View (https://ed.psu.edu/ academics/departments/ department-education-policy- studies/higher-education-program/)
Campus
World Campus
Graduate Program Head
Adrienne Denise Dixson
Director of Graduate Studies (DGS)
or Professor-in-Charge (PIC)
Karly Sarita Ford
Program Contact
Diane Lupp 400 Rackley 135 River Birch Road University Park PA 16802 firstname.lastname@example.org (814) 863-2690 View (http://
Program Website
www.worldcampus.psu.edu/ degrees-and-certificates/higher- education-masters/apply/)
|
The Mobility Scenario vs Green Deal Objectives
Antonio Imbruglia Stradale Primosole 50, 95121 STMicroelectronics Catania, Italy email@example.com
Francesco Gennaro Stradale Primosole 50, 95121 STMicroelectronics Catania, Italy
Pietro Di Grazia Stradale Primosole 50, 95121 STMicroelectronics Catania, Italy
Abstract—To achieve the objectives indicated in the new Green Deal of July 2021 for year 2030 (- 55% GHG emissions) and finally year 2050 (Getting closer to zero emissions)), an important role will be played by mobility. In fact, electric vehicles, such as trains, trams, and subways, have always been the most energy efficient and environmentally sustainable solutions
Keywords— mobility, EV, WBG
I. INTRODUCTION
An interesting overview of the objectives for Europe at 2030 was given in SFM (Shaping Future of Mobility) Congress held in Lisbon last November 2021 [1].
Looking at terrestrial mobility by 2030, there are several objectives to reach:
- Minimum 30 Mu zero-emission cars and 80 ku zeroemission trucks in operation;
- Scheduled collective travel under 500 km should be carbon-neutral within the EU;
- Doubled high-speed rail traffic, rail freight traffic increased by 50%;
- Rail & waterborne-based intermodal will be able to compete on equal footing with road-only transport in the EU;
- Automated mobility deployed at a large scale;
- Operational multimodal Trans-European Transport Network equipped for sustainable and smart transport with high speed connectivity (core network).
There is a clear interest in Europe in electric vehicles (EVs) and Rail mobility. In both cases the introduction of new cars and trains equipped with more and more efficient technologies is foreseen.
Railway is the most electrified sector among all transport modes, with electricity accounting for over 40% of energy consumption in 2020. In the APS (Announced Pledges Scenario) the share of electricity reaches almost 60% in 2030, compared with nearly 65% in the NZE (Net Zero Emission). Plans for further electrification of railways are planned in several countries (e.g. Germany, India and United Kingdom), involving in some projects hydrogen powered trains too (e.g. Germany) [2].
Some of the transport modes are already fully electric (trains, trams, subways), undergoing a rapid transformation from internal combustion engine (ICE) to hybrid and fully electric (EV) cars. So looking at 2030 objectives, in both cases it will be a question of optimizing the efficiency of the transport system (trains, trams, subways) or of accelerating the transition to electric cars [3].
II. ELECTRONICS FOR MOBILITY
In this work we analyze the case of terrestrial mobility: electric vehicles, trams, and trains, representing a mean of private and collective mobility. Thanks to new technologies they can benefit for efficiency and reliability.
In Figure1 the area of application of power semiconductors technologies, as a function of power rating and frequency range, is represented. Table 1 lists the required breakdown voltage for a given end application and semiconductor technology.
Table 1: SUMMARY OF DEVICES BY APPLICATION (source Yole)
| | Voltage required | Rail | | EV / HEV and automotive auxiliaries | |
|---|---|---|---|---|---|
| IGBT | 250V-900V | | | | SiC |
| | 1.2kV-1.7kV | SiC | SiC | SiC | SiC |
| | >3.3kV | | | | |
| MOSFET | <40V | | | | |
| | 60V-100V | | | | |
| | 150V-400V | | | | |
| | >500V | | | | |
Silicon IGBT vs SiC MOSFET
Substantial improvements in the performance of power electronics systems are due to power electronic devices based on wide bandgap semiconductors. They offer higher blocking voltages, improved efficiency, and reliability (higher performance/cost ratio), easier paralleling, and reduced thermal requirements, thus leading to the realization of more efficient green electronic systems.
Anyway IGBT devices with high breakdown voltage like 3.3kV are available while SiC counterpart is still under development. In Table II, a comparison between two devices at 1.7kV is provided in terms of Rdson and chip area. Similar performances and advantages already get for 1.7kV and 2.2kV and are expected for next 3.3kV generation.
Table II: key power devices parameters for IGBT and SiC.
| Paramet er | Si IGB T 1.7k V | SiC MOSFET 1.7kV | SiC MOSFET 2.2kV | SiC MOSFET 3.3kV |
|---|---|---|---|---|
| Operatin g Voltage | 1700 V | 1700 V | 2200 V | 3300 V |
| Rdson | | 60 mΩ | 30 mΩ | 80 mΩ * |
| Normalized active chip area | 100 | 20 | | |
* prototype
Comparing the turn-off behavior of silicon IGBT and SiC MOSFET shown in Fig. 2, it is easy to conclude that, thanks to SiC MOSFETs higher efficiency values can be obtained when the switching frequency increases.
III. MOBILITY
Mobility in general has to be considered collective as well as private, in order to define the specific characteristics in the Green Deal scenario.
A. Colletive mobility
A train is ideal in the range between 500km to 800km distance. The earliest high-speed rail line built in Europe was the Italian "Direttissima", the Florence–Rome high-speed railway (254 km/158 mi) in 1978, which used FS Class E444 3 kV DC locomotives. Italy pioneered the use of the Pendolino tilting train technology. The Italian "Treno Alta Velocità" (High Speed Train) has been adding to the highspeed network in Italy, with some lines already opened. The Italian operator NTV is the first open access high-speed rail operator in Europe, since 2011, using AGV ETR 575 multiple units.
In March 2011, a contract for the second phase of construction on the Milan–Verona high-speed line was
1 The TSI Energy specifies the following power systems: AC 25 kV 50 Hz system, AC 15 kV 16,7 Hz system, DC 3 kV system and 1,5 kV system.
signed. This section will be 39 km. Originally planned to be completed by 2015, it was open to Brescia late 2016.
The Italian high-speed railway network consists of 1342 km of lines, which allows speed of up to 300 km/h. The safety system adopted for the network is the ERMTS/ETCS II, the best existing solution in terms of railway signaling and safety. The power supply follows the European standard of 25 kV AC 50 Hz single-phase current. The Direttissima segment is still supplied with 3 kV DC current, but it is planned that this will be conformed to the rest of the network. [1] In particular, the 3kV technology is of interest for the recent very high voltage power semiconductor which is the 3.3kV Silicon Carbide MOSFET.
B. An example of railway performances
It is interesting to give a look at some characteristics of a high speed train. This is the case of "Frecciarossa 1000", shown in Fig. 3, with related power level and electronics.
"Frecciarossa" is the high-speed service launched by Trenitalia in 2009 that connects the major Italian cities from North to South:
- Turin-Milan-Bologna-Florence: 25 kV - 300 km / h;
- Florence-Rome: 3 kV - 250 km/h;
- Rome-Naples: 25 kV - 300 km/h.
The fleet of 59 trains travels 20 million km/year.
The train introduces many technological innovations in all its parts.
The aerodynamic profile has been optimized to contain resistance to motion and noise at high speeds. Any external appendages that could create turbulence have been eliminated.
The pantograph is positioned directly in electrical continuity on the roof of the train with no isolators. The galvanic isolation from ground was achieved by inserting a structural insulator in the lower arm of the pantograph, which is a novelty in the field of railway traction.
The effect is that the noise requirements are met even at maximum speeds not fully covered by TSI 1 .
The most extreme performances required are for the 3 kV pantograph which has to pick up about 3000 A from a single heavy catenary pantograph (4 wires).
For this reason, special contact strips have been developed to guarantee a good tradeoff between achieving a low resistivity while maintaining a low weight to not compromise the dynamic characteristics of the pantograph head.
The traction system is characterized by high modularity as it consists of 16 independently driven motors with the possibility of single isolation and overload of the rest to compensate for the loss of power and strength. The adhesion committed is always less than half of that required by the TSI. All the logic of the redundancies and related management has been made to guarantee the availability of force and power to obtained even very aggressive schedules. The power converter is based on IGBT power switches.
C. Private mobility
In the scenario of private mobility, hybrid electric vehicle (HEV) and electric vehicle (EV) must be considered. A hybrid electric vehicle (HEV) is a type of hybrid vehicle that combines a conventional internal combustion engine (ICE) system with an electric propulsion system (hybrid vehicle drivetrain). The presence of the electric powertrain is intended to achieve either better fuel economy than a conventional vehicle or better performance. There is a variety of HEV types and the degree to which each function as an electric vehicle (EV) also varies. The most common form of HEV is the hybrid electric car, although hybrid electric trucks (pickups and tractors), buses, boats and aircraft also exist.
A pure-electric vehicle or all-electric vehicle (EV) is powered exclusively through electric motors. The electricity may come from a battery (battery electric vehicle), solar panel (solar vehicle) or fuel cell (fuel cell vehicle).
Obviously, all the electronics connected to the electric vehicle from photovoltaic systems, to charge stations for domestic and public use, can be optimized to have a low impact in CO2 emissions.
Dedicated electronics is used for HEV and EV to convert energy and drive the motor, as shown in Fig. 4.
Looking at each block, the most suitable technology must be identified. A schematization is listed in Table III.
Table III: key power technologies vs. application.
| Material | Technology vs. application | |
|---|---|---|
| | Technology | Focus applications |
| Si | IGBT | Traction, OBC, DC-DC, PTC heater and aircon |
| | HV MOSFET | OBC, DC-DC converter and exploring traction inverter |
| SiC | SiC MOSFET | Traction, OBC and DC-DC converter |
| GaN | Power GaN | OBC and DC-DC converter |
| | PM and IPM | Traction, OBC, DCDC converter and aicon |
a. PM Power Module, IPM Intelligent Power Module
All the identified technologies can be used equally in each application: so that a DC-DC converter or an On-Board Charger (OBC) can be realized with any of them. Of course, different specifications and use case for OBCs may require SiC or GaN instead of Si.
IV. SMARTSYSTEM FOR MOBILITY
To successfully pursue the electric way for mobility some smart systems are needed. Just considering the EV these smart systems are crucial to achieve efficiency, reliability and be competitive with railway for medium distances:
1. ELECTRIC MOTOR CONTROL
2. DC/AC CONVERTER (Energy from the battery to the motor and vice versa)
3. SUPERFAST CHARGER
4. On Board Battery Charger
5. KERS (Kinetic Energy transformation system into Electrical)
A key system that for us is key are the superfast charger and On Board Battery Charger; with his performances users can be ready for medium distances travels with EV.
A. Super fast charger 300kW
The spread of charging infrastructures is a determining factor for the development of sustainable mobility. The availability of recharging is therefore a decision-making element for the passage and diffusion of electric vehicles.
Charging stations for electric cars represent a fundamental element for "Car Electrification".
A wide spread of charging stations will have an impact on the network infrastructure and management, especially in the Smart Grid area with the V2G application.
The fundamental factors for the development of a charging station are: Power Quality, efficiency, size and cost!
In the fig.5 the main blocks that make up the high-power charging columns, highlighting how the new technologies improve the performance of charging systems. In addition to the charging stations available on the road, there are also new ones so called 350kW superchargers. These are built using a modular approach.
Instead in the Fig.6 it shown the positioning of the Charging station and main Smart Systems cited in the technologies scenario including WBG.
Fig.6 Applications in technologies scenario [Source: STMicroelectronics].
In the AEIT Automotive 2019 some numbers were presented by Bender and charging time span from few hours for AC charging to 30mn for DC fast charging.
B. On-Board Battery Charger
The on-board battery charger, OBC, is the direct link with the Grid, charges the battery of plug-in HEVs and EVs from the single-phase or 3-phase power grid. In Fig. 7 is shown a basic single phase solution for 400V battery system.
Further optimization in terms of efficiency can be introduced with higher performance topologies for PFC stage with bridge-less architectures as well as synchronous rectification on the output of the DC/DC stage. Such improvements are made possible thanks to WBG device characteristics.
Different architectures and topologies in automotive are required to support scalable solutions. The availability of different power semiconductor technology helps in finding the best trade-off between performance and cost.
In addition to Si and SiC based power components, there is the introduction of the "newcomer" GaN power transistor. The advantage of such new technology is highlighted in Fig. 7, where the efficiency evaluation of a DC-DC converter in Boost topology is shown using different power semiconductor technology in the 650V voltage class.
The efficiency of GaN transistors is superior compared to SiC, so it may be used in OBC developments with promising perspectives in terms of overall performance.
C. Electric Veichole as a challange
An important step for SiC adoption for power electronics happened in 2018 when Tesla decided to adopt this technology for its traction inverter. After two years and almost 1 million cars on the road, SiC demonstrated its ability to support high current and high voltage with very low electrical losses, high thermal and electrical conductivity and reliability.
SiC added value for electrical vehicles, at a nominal installed power, are:
- Extended range or smaller battery size (5 to 10% range) by improved partial load efficiency, leading to significant system level savings (-400$ to -800$)
- Less cooling needs: -60% size of cooling system
- Higher power density: Size reduction by 40 to 50% at same power output
- Increased charging speed at 800V battery voltage: down to 15 min.
- Extended current carrying capability due to higher thermal limits 200°C (vs. 175°C for silicon).
Therefore, SiC material is firstly identified as a material of choice to replace silicon in the traction inverter to drive the electric motor, bringing increased performance, lower losses and decreasing battery size which impacts vehicle weight, cost and overall reliability. With its ability to work at very high power, SiC also enables increased charging speed, a major argument for the massive adoption of electrical vehicles, and could be used with on board as well as off board chargers.
With SiC device costs still being three times higher than the traditional Si insulated-gate bipolar transistor (IGBT) we need to consider the total cost of ownership (TCO) at system level. With benefits at system level, lower system weight and volume and user-oriented benefits, SiC technology is already addressing the high-end markets as of today. The funded Project TRANSFORM aims to reduce component and system cost of ownership further to address an even broader accessible market, by introducing newly engineered substrates, accelerating the introduction of 200 mm SiC wafer to reduce cost efforts further, and implement design innovations at device and system levels.
D. Abbreviations and Acronyms
GaN Gallium nitride
IGBT insulated-gate bipolar transistor
EV Electric Vehicle
HEV Hybrid Electric Vehicle
HV High Voltage
OBC On Board Battery Charger
PFC Power Factor Correction
SiC Silicon Carbide
TOC total cost of ownership
WBG Wide Band Gap
V. CONCLUSION
Next generation very high voltage power devices have been introduced and discussed in order to highlight the benefits of the mobility in the Green Deal scenario. In particular, silicon IGBT and Silicon Carbide MOSFETs have been considered for this purpose.
Two examples of mobility have been illustrated, railway and automotive, which are used respectively - for medium and short distances respectively.
It has been considered also main Smart System that take benefits form new technologies looking at 300kW Super chargers and On-Board Battery Charger.
Thanks to the intrinsic characteristics of the WBG materials, the next generation power devices will allow to increase the efficiency of the applications and consequently the working temperature. This will bring benefits by reducing CO 2 emissions: Train 25, Auto 68, Airplane 113 kg of CO 2 for passenger.
ACKNOWLEDGMENT
Some works described here was conducted during research activities in a funded project. The TRANSFORM project has received funding from the Electronic Component Systems for European Leadership Joint Undertaking (ECSEL JU) under grant agreement: 101007237. This Joint Undertaking receives support from the European Union's Horizon 2020 research and innovation programme.
REFERENCES
[1] Keir Fitch, DG MOVE'S Expectations on Green Deal Strategy SFM '21 | Lisbon | November 10-12, 2021
[2] World Energy Outlook 2021
[3] MacKay, D.J. (2009). Sustainable energy - without the hot air . UIT Cambridge, England.
[4] Antonio Imbruglia;Francesco Gennaro;Gianfranco Di Marco (2021) Silicon and Wide Bandgap technologies in automotive power electronics and their applications – 2021 AEIT International
Conference on Electrical and Electronic Technologies for Automotive (AEIT AUTOMOTIVE)
[5] "Roma – Firenze – Alta Velocità – Alta Capacità – Italferr". Italferr.it. Archived from the original on 22 January 2016. Retrieved 28 March 2015.
[6] P.Masini - Innovazione in Trenitalia sui treni ad alta velocità: Telediagnostica e FrecciaRossa1000 Atti Convegno Annuale AEIT – anno 2013, vol. 105, pag. C1.1
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CC No. 299/2019 (Old CC No. CBI/33/2017)
RC No. 219 2014 (E) 0017
Branch: CBI, EO-I, New Delhi
CBI Vs. M/s SKS Ispat Ltd & Others
U/s 120-B r/w 420 IPC and also substantive offences thereof.
06.08.2020.
Matter taken up today in compliance of Office Order No. Power/Gaz./RADC/2020/E-7784-7871 dated 30.07.2020 and also in continuation to orders No.819-903/DJ/RADC/2020 dated 16.05.2020, No. E17921876/DJ/RADC/2020 dated 22.05.2020, No. E-2574-2639/DJ/RADC/2020 dated 29.05.2020, No. E-3943-4029/DJ/RADC/2020 dated 13.06.2020, No. E-41214205/DJ/RADC/2020 dated 15.06.2020 and No. Power/Gaz./RADC/2020/E-55775661 Dated 29.06.2020 and Power/Gaz./RADC/2020/E-6836-6919 Dated 14.07.2020, of Ld. District & Sessions Judge-Cum-Spl. Judge (PC ACT) (CBI) Rouse Avenue District Court, New Delhi.
The present matter is being taken up today through video conferencing as regular functioning of the Courts at District Courts has been suspended since 23.03.2020 vide office orders of Hon'ble High Court of Delhi bearing Nos. 373/Estt./E1/DHC dated 23.03.2020, No.159/RG/DHC/2020 dated 25.03.2020, No.R77/RG/DHC/2020 dated 15.04.2020, No. R-159/RG/DHC/2020 dated 02.05.2020, No. R-235/RG/DHC/2020 dated 16.05.2020, R-305 /RG/DHC/2020 dated 21.05.2020, No.1347/DHC/2020 dated 29.05.2020, No.17/DHC/2020 dated 13.06.2020, No.22/DHC/2020 dated 29.06.2020, No. 24/DHC/2020 dated 13.07.2020 and No. 26 /DHC/2020 dated 30.07.2020.
The hearing of the present matter is being taken up via Cisco WebEx Platform in the presence (onscreen) of:
Present: Ld. Senior PP Sh. A.P. Singh, Ld. DLA Sh. V.K. Sharma and Advocate Ms. Tarannum Cheema for CBI alongwith IO Inspector Bodh Raj Hans.
Ld. Counsel Sh. Atul Shankar Mathur for A-1 company M/s SKS Ispat & Power Ltd.
Ld. Counsel Sh. Shishir Mathur for A-2 Deepak Gupta.
Ld. Counsel Sh. Jai Sahai Endlaw for A-3 Satya Narain Dwivedi.
Ld. Counsel Sh. Arvind Kumar Verma for A-4 Amrit Singh.
Ld. Counsel Sh. Atul Shankar Mathur for A-1 M/s SKS Ispat & Powre Ltd submits that he does not intend to file written submissions in the present case.
Ld. Counsel Sh. Jai Sahai Endlaw for A-3 Satya Narain Dwivedi submits on the last date of hearing he had sought time to file written submission but now he does not intend to file any written submissions on the point of charge.
Ld. Counsel Sh. Arvind Kumar Verma for A-4 Amrit Singh submits that he has already filed written submissions.
Heard. Considered.
Ld. Counsel is requested that a hard copy thereof be also placed in the judicial file as and when normal functioning of the courts is resumed.
Case is now adjourned to 31.08.2020 for consideration.
A scanned signed copy of this order is being sent to Sh. Mukesh JJA, Computer Branch, RADC via WhatsApp for uploading it on the official website of Delhi District Courts.
A copy of order is being retained, to be placed in the judicial file as and when normal functioning of the courts is resumed.
The present order has been dictated on phone to Steno Pawan
Singhania. Digitally signed by BHARAT
BHARAT PARASHAR
PARASHAR Date: 2020.08.06 12:12:02 +05'30'
(Bharat Parashar) Special Judge, (PC Act) (CBI), Court No. 608 Rouse Avenue Court New Delhi 06.08.2020.
CC No. 292/2019 (New CC No. 74/16 & 02/14)
RC No. 219 2012 E 0011
Branch: CBI/EOU-IV/EO-II, New Delhi
CBI Vs. Y. Harish Chandra Prasad & Ors.
U/s. 120-B IPC, 406 IPC, 409 IPC, 420 IPC,
U/s 120-B/409/420 IPC U/s 13(1)(c) & 13(1)(d) P.C. Act, 1988
06.08.2020.
Matter taken up today in compliance of Office Order No. Power/Gaz./RADC/2020/E-7784-7871 dated 30.07.2020 and also in continuation to orders No.819-903/DJ/RADC/2020 dated 16.05.2020, No. E17921876/DJ/RADC/2020 dated 22.05.2020, No. E-2574-2639/DJ/RADC/2020 dated 29.05.2020, No. E-3943-4029/DJ/RADC/2020 dated 13.06.2020, No. E-41214205/DJ/RADC/2020 dated 15.06.2020 and No. Power/Gaz./RADC/2020/E-55775661 Dated 29.06.2020 and Power/Gaz./RADC/2020/E-6836-6919 Dated 14.07.2020, of Ld. District & Sessions Judge-Cum-Spl. Judge (PC ACT) (CBI) Rouse Avenue District Court, New Delhi.
The present matter is being taken up today through video conferencing as regular functioning of the Courts at District Courts has been suspended since 23.03.2020 vide office orders of Hon'ble High Court of Delhi bearing Nos. 373/Estt./E1/DHC dated 23.03.2020, No.159/RG/DHC/2020 dated 25.03.2020, No.R77/RG/DHC/2020 dated 15.04.2020, No. R-159/RG/DHC/2020 dated 02.05.2020, No. R-235/RG/DHC/2020 dated 16.05.2020, R-305 /RG/DHC/2020 dated 21.05.2020, No.1347/DHC/2020 dated 29.05.2020, No.17/DHC/2020 dated 13.06.2020, No.22/DHC/2020 dated 29.06.2020, No. 24/DHC/2020 dated 13.07.2020 and No. 26 /DHC/2020 dated 30.07.2020.
The hearing of the present matter is being taken up via Cisco WebEx Platform in the presence (onscreen) of:
Present: Ld. Senior PP Sh. A.P. Singh, Ld. DLA Sh. V.K. Sharma and Advocate Ms. Tarannum Cheema for CBI along with IO Dy. SP. K.L. Moses.
Ld. Counsels Sh. Shri Singh and Sh. Yogesh Raavi for A-1 Y. Harish Chandra Prasad.
A-2 P. Trivikrama Prasad.
Ld. Counsels Sh. Arshdeep Singh and Sh. Faraz Maqbool for A-2 P. Trivikrama Prasad.
Ld. Counsels Sh. P.K. Dubey and Sh. Anurag Andley for A-3 M/s BTPL.
Ld. Counsel Sh. Rahul Tyagi for A-4 H.C. Gupta, A-5 K.S. Kropha and A-6 K.C. Samria.
Ld. Senior PP Sh. A.P. Singh pointed out that in the present case examination-in-chief of PW IO Dy. SP K.L. Moses has already been recorded and it is cross-examination which is to be carried out by Ld. Counsels.
Heard. Considered.
On the suggestion of the Court, Ld. Counsels for all the accused persons very fairly agreed to give a trial to carry out cross-examination of PW IO Dy. SP. K.L. Moses, through video conferencing mode via Cisco WebEx Platform.
Accordingly, matter be now put up for cross-examination of IO Dy. SP K.L. Moses on 19.08.2020 at 02.15 pm.
A scanned signed copy of this order is being sent to Sh. Mukesh JJA, Computer Branch, RADC via WhatsApp for uploading it on the official website of Delhi District Courts.
A copy of order is being retained, to be placed in the judicial file as and when normal functioning of the courts is resumed.
The present order has been dictated on phone to Steno Pawan Singhania.
BHARAT PARASHAR
Digitally signed by BHARAT PARASHAR Date: 2020.08.06 12:14:06 +05'30'
(Bharat Parashar) Special Judge, (PC Act) (CBI), Court No. 608 Rouse Avenue Court New Delhi 06.08.2020
CC No. 276/2019 (Old CC No. 14/17)
RC No. 219 2014 (E) 0016
Branch: CBI, EO-I, New Delhi
CBI Vs. M/s SKS Ispat & Power Ltd. & Ors.
U/s 120-B r/w Section 420 IPC & substantive offences thereof
06.08.2020.
Matter taken up today in compliance of Office Order No. Power/Gaz./RADC/2020/E-7784-7871 dated 30.07.2020 and also in continuation to orders No.819-903/DJ/RADC/2020 dated 16.05.2020, No. E17921876/DJ/RADC/2020 dated 22.05.2020, No. E-2574-2639/DJ/RADC/2020 dated 29.05.2020, No. E-3943-4029/DJ/RADC/2020 dated 13.06.2020, No. E-41214205/DJ/RADC/2020 dated 15.06.2020 and No. Power/Gaz./RADC/2020/E-55775661 Dated 29.06.2020 and Power/Gaz./RADC/2020/E-6836-6919 Dated 14.07.2020, of Ld. District & Sessions Judge-Cum-Spl. Judge (PC ACT) (CBI) Rouse Avenue District Court, New Delhi.
The present matter is being taken up today through video conferencing as regular functioning of the Courts at District Courts has been suspended since 23.03.2020 vide office orders of Hon'ble High Court of Delhi bearing Nos. 373/Estt./E1/DHC dated 23.03.2020, No.159/RG/DHC/2020 dated 25.03.2020, No.R-77/RG/DHC/2020 dated 15.04.2020, No. R159/RG/DHC/2020 dated 02.05.2020, No. R-235/RG/DHC/2020 dated 16.05.2020, R-305 /RG/DHC/2020 dated 21.05.2020, No.1347/DHC/2020 dated 29.05.2020, No.17/DHC/2020 dated 13.06.2020, No.22/DHC/2020 dated 29.06.2020, No. 24/DHC/2020 dated 13.07.2020 and No. 26 /DHC/2020 dated 30.07.2020.
The hearing of the present matter is being taken up via Cisco WebEx Platform in the presence (onscreen) of:
Present:
Ld. Senior PP Sh. A.P. Singh, Ld. DLA Sh. V.K. Sharma and Advocate Ms. Tarannum Cheema for CBI along with IO Inspector M.R. Atrey.
Ld. Counsel Sh. Atul Shankar Mathur for A-1 company M/s SKS Ispat & Power Ltd.and A-2 Anil Gupta.
Ld. Counsel Sh. Shishir Mathur for A-3 Deepak Gupta.
Ld. Counsel Sh. Arvind Kumar Verma for A-4 Amrit Singh.
Ld. Counsels Sh. Neeraj Chaudhari and Sh. Atul Shankar Mathur for A-5 Sudhir Kumar Sahay.
Ld. Counsels Sh. Atul Shankar Mathur and Sh. Neeraj Chaudhari submit that they do not intend to file written submissions in the present case.
Ld. Counsel Sh. Arvind Kumar Verma for A-4 Amrit Singh submits that he has already filed written submissions.
Heard. Considered.
Ld. Counsel is requested that a hard copy thereof be also placed in the judicial file as and when normal functioning of the courts is resumed.
Matter be now put up on 31.08.2020 for consideration.
A scanned signed copy of this order is being sent to Sh. Mukesh JJA, Computer Branch, RADC via WhatsApp for uploading it on the official website of Delhi District Courts.
A copy of order is being retained, to be placed in the judicial file as and when normal functioning of the courts is resumed.
The present order has been dictated on phone to Steno Pawan Singhania. Digitally signed by
12:10:11 +05'30'
BHARAT
PARASHAR
BHARAT PARASHAR
Date: 2020.08.06
(Bharat Parashar) Special Judge, (PC Act) (CBI), Court No. 608 Rouse Avenue Court New Delhi 06.08.2020.
CC No. 289/2019 (Old CC No. 79/16)
RC No. 219 2014 E 0015
Branch: CBI/EO-I/New Delhi
CBI Vs. M/s. SKS Ispat & Power Ltd. & Ors.
U/s. 120-B/420/467/468/471/201 IPC &
Sec. 13 (2) r/w 13 (1) (d) P.C. Act, 1988
06.08.2020.
Matter taken up today in compliance of Office Order No. Power/Gaz./RADC/2020/E-7784-7871 dated 30.07.2020 and also in continuation to orders No.819-903/DJ/RADC/2020 dated 16.05.2020, No. E17921876/DJ/RADC/2020 dated 22.05.2020, No. E-2574-2639/DJ/RADC/2020 dated 29.05.2020, No. E-3943-4029/DJ/RADC/2020 dated 13.06.2020, No. E-41214205/DJ/RADC/2020 dated 15.06.2020 and No. Power/Gaz./RADC/2020/E-55775661 Dated 29.06.2020 and Power/Gaz./RADC/2020/E-6836-6919 Dated 14.07.2020, of Ld. District & Sessions Judge-Cum-Spl. Judge (PC ACT) (CBI) Rouse Avenue District Court, New Delhi.
The present matter is being taken up today through video conferencing as regular functioning of the Courts at District Courts has been suspended since 23.03.2020 vide office orders of Hon'ble High Court of Delhi bearing Nos. 373/Estt./E1/DHC dated 23.03.2020, No.159/RG/DHC/2020 dated 25.03.2020, No.R-77/RG/DHC/2020 dated 15.04.2020, No. R159/RG/DHC/2020 dated 02.05.2020, No. R-235/RG/DHC/2020 dated 16.05.2020, R-305 /RG/DHC/2020 dated 21.05.2020, No.1347/DHC/2020 dated 29.05.2020, No.17/DHC/2020 dated 13.06.2020, No.22/DHC/2020 dated 29.06.2020, No. 24/DHC/2020 dated 13.07.2020 and No. 26 /DHC/2020 dated 30.07.2020.
The hearing of the present matter is being taken up via Cisco WebEx Platform in the presence (onscreen) of:
Present:
Ld. Senior PP Sh. A.P. Singh, Ld. DLA Sh. V.K. Sharma and Advocate Ms. Tarannum Cheema for CBI along with IO Dy. SP Sanjay Sehgal.
Ld. Senior Advocate Sh. Mohit Mathur with Ld. Counsels Sh. Atul Shankar Mathur, Sh. Vivek Mathur for A-1 Company SKS Ispat & Power Ltd. and A-2 Anil Gupta.
Ld. Counsel Sh. Shishir Mathur for A-3 Deepak Gupta.
Ld. Counsel Sh. Arvind Kumar Verma for A-4 Amrit Singh and A-6 Jagannath Panda.
Ld. Counsel Sh. Jai Sahai Endlaw for A-5 Rakesh Kumar Singh.
Ld. Counsel Sh. Rahul Tyagi for A-7 H.C. Gupta and A-8 K.S. Kropha.
APPLICATION U/S 173 (8) Cr.PC MOVED ON BEHALF OF A-1 M/S SKS ISPAT LTD.
Arguments have been heard on the aforesaid application as advanced by Ld. Senior Advocate Sh. Mohit Mathur on behalf of A-1 M/s SKS Ispat & Power Ltd. and by Ld. Senior PP Sh. A.P. Singh on behalf of Prosecution.
Ld. Senior Advocate Sh. Mohit Mathur has also addressed arguments in rebuttal.
Both the parties are at liberty to file written submissions and case laws, if any, in support of their arguments within one week.
Ld. Counsel Sh. Arvind Kumar Verma has filed written submissions on behalf of A-4 Amrit Singh and he has also submitted online the submissions as were received from A-6 Jagannath Panda.
E-copy supplied to prosecution.
Ld. Counsel is requested that a hard copy thereof be also placed in the judicial file as and when normal functioning of the courts is resumed.
Ld. Counsel Sh. Jai Sahai Endlaw for A-5 Rakesh Kumar Singh submits that though on the last date of hearing he had sought time to file written submissions but now he does not intend to file any written submissions on the point of charge.
Ld. Counsel Sh. Rahul Tyagi however seeks some more time to address arguments on behalf of accused H.C. Gupta and accused K.S. Kropha.
Heard. Considered.
Case is now adjourned to 31.08.2020 for orders on the application u/s 173 (8) Cr.PC moved on behalf of A-1 M/s SKS Ispat Ltd.
A scanned signed copy of this order is being sent to Sh. Mukesh JJA, Computer Branch, RADC via WhatsApp for uploading it on the official website of Delhi District Courts.
A copy of order is being retained, to be placed in the judicial file as and when normal functioning of the courts is resumed.
The present order has been dictated on phone to Steno Pawan Singhania.
Digitally signed by BHARAT PARASHAR Date: 2020.08.06 12:09:21 +05'30'
BHARAT PARASHAR
(Bharat Parashar) Special Judge, (PC Act) (CBI), Court No. 608 Rouse Avenue Court New Delhi 06.08.2020.
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How Do You Earn Respect (Kavod)? – Parshat Shemot
written by Refael Kramer January 8, 2023
Who doesn't want to be honored and respected? Everyone wants honor, but who decided that honor is something that a person needs to request, seek after, and even suffer humiliation for—just to get some respect? Let's learn about a different type of honor where a person chooses on his own to honor another. This kind of respect is actually the completion of G-d's honor, and in its merit, we will be freed from all our troubles, including the exile we are suffering in now. This is the
message of this week's parsha.
This week's Torah portion is parshat Shemot. The Torah tells of the enslavement of the Nation of Israel in Egypt. After Joseph and his brothers passed away, the Egyptians began to enslave the Jews with hard labor and treated them cruelly. Pharaoh decreed that all the male children who were born to the Jews would be cast into the Nile, along with other unbearable decrees. During the time of this decree, Moses was born, and his mother Yocheved placed him in a basket in the Nile in a last-ditch attempt to save him. Batyah, the daughter of Pharaoh, discovered Moses on the bank of the river and rescued him from the water, raising him in the house of her father Pharaoh, the king of Egypt. This whole sequence of events was beyond belief.
Moses grew up in Pharaoh's house and rose to greatness when Pharaoh appointed him over his house (Rashi on Exodus 2:11), and yet he did not turn a blind eye to the bondage of his Jewish brothers. His empathy for them caused him to go out to see them, and he observed their sufferings, as is recorded in the Torah: "In those days, when Moses was grown, he went out to his brothers and saw their suffering. He saw an Egyptian man beating a Jew, one of his brethren. He looked all around, and when he saw no one was there, he struck down the Egyptian and hid his body in the sand. He went out on the second day, and behold, two Jews were quarreling, and he said to the wicked one, 'Why are you striking your neighbor?' 'Who appointed you ruler and judge over us?' he answered him. 'Are you planning to kill me in the same way that you killed the Egyptian?' Moses became frightened and said, 'I see the matter has become known" (Exodus 2:11-14).
When Moses realized that it was now common knowledge that he had struck down the Egyptian, he became afraid. Rashi brings the Midrash which explains that Moshe started worrying when he saw that there were wicked Jews who were informers. He said: "If that is the case, then perhaps they are not worthy of being redeemed. Indeed, if this matter is widely known, now I can understand that which I was wondering about: What sin could the Jews have done that could be worse than all the seventy nations that they should be sentenced to hard labor? But now I see that they deserve it" ( Shemot Rabba 1:30).
Rabbi Natan expresses his great astonishment at Rashi's words which are quoted from the Midrash and asks: "Is it possible that for the sin of gossiping and informing the Jews should deserve to be sentenced to hard labor—were they worse than all the seventy nations? Can we compare the gossip between Jews—no matter how bad it might have been—with the sins of the nations which involved wars, murder, and far more severe crimes? Why, then, was the Nation of Israel specifically doomed to suffer exile rather than any of the other seventy nations?
To understand these things, let us examine the root cause of the exile of the Nation of Israel to Egypt, as it is explained in a lesson taught by Rebbe Nachman:
The kavod (honor) is the root of all souls, and when the soul passes away, it passes into the kavod which is its root, in the aspect of: "the glory (kavod) of G-d shall gather you in" (Isaiah 58:8). Because the kavod is the root of the soul, a defect in kavod signifies a defect in the soul. Honor is the root and garment of the soul, and when kavod comes to a person, it can come in one of two ways. One, it could be that it has come to take the soul with it because it is the root of the soul; it comes to collect (take) the soul, as in the verse, "the glory (kavod) of G-d shall gather you in." The second possibility is the aspect of "middah tova merubah—the measure of good is great," which means, the reward is greater than the punishment. Usually, the kavod that enclothes the soul comes in order to renew the soul and to strengthen its power. Therefore, a person must be very careful not to damage the kavod, meaning he must be careful not to take the honor for himself, because it can, G-d forbid, cause a person's soul to depart.
For example, if a person rises to greatness, it may sometimes signify that he is at his end, because the kavod that is the root of the soul is revealed in order to collect the soul. But "middah tova merubah—the measure of good is great" and usually when a person rises to greatness it means that his soul has grown, and new channels and additional abilities are being opened up for him in his soul that were hitherto hidden and dormant. This would mean that now he will be able to exercise these powers of the soul and reach his spiritual goals more easily.
However, Rabbi Nachman teaches, "Anytime that there is a concealment of G-d's face and harsh judgments arise, G-d forbid, then the kavod falls to the brazenfaced of the generation, that is, the nations of the world, and the wicked forcefully take the leadership, kingship, power to rule, and also the kavod which really belongs only to G-d" (Kitzur Likutei Moharan I, 67).
Now let us return to the enslavement in Egypt that is described in our parsha. The essence of the exile in Egypt, the first exile of the Nation of Israel—which included within it all the subsequent exiles as has been stated—is rooted in the fact that the kavod and kingship of G-d fell into the hands of the wicked Egyptians who took the kavod for themselves by physical force and enslaved the Nation of Israel to whom all the honor and kingship truly belong, because everything was created only for the Nation of Israel. When the Egyptians took for themselves the kavod of holiness, they essentially wanted that all the souls of the Nation of Israel whose roots are in the honor of G-d would become enslaved to them, as it is written: "He takes pride in Israel" (Psalms 68:35), because, as we mentioned, the honor is the root of our souls.
If indeed the Nation of Israel had descended to Egypt against their will, being compelled by the Egyptians, they could not have endured the humiliation they received from the Egyptians. G-d did a great and profound kindness for the souls of Israel that the descent into Egypt came through the exaltedness of the honor of Joseph who had ascended to greatness there, as it is written: "And you shall tell my father of all my honor in Egypt and all that you have seen, and you shall hasten and bring my father down here" (Genesis 45:13). In any case, it had been decreed that the Nation of Israel was to go into exile in Egypt. (As it is stated in the Kabbalistic writings, it was to correct the sin of Adam HaRishon who was defiled through eating from the Tree of Knowledge). If they had gone down to Egypt in humiliation, G-d forbid, being forced to do so by the Egyptians—as our sages said: "Our father Jacob should have gone down to Egypt in iron chains…However, his merit caused him to go down without suffering" (Shabbat 89b)—they would never have had the strength to withstand the bitterness of the exile, despite the fact that afterwards the Egyptians overcame them and forcibly took for themselves the kavod which is the root of the souls of the Jewish people and enslaved them. But they were unable to conquer the souls of Israel completely, because of the power of Joseph who had merited to the kavod of holiness.
Therefore, when Moses saw how "an Egyptian was striking one of his Jewish brothers" (Exodus 2:11), it grieved him to no end. How could the honor of G-d have fallen so low that an evildoer could take the honor and rulership for himself and thus humiliate a Jew so blatantly? He received the answer the next day when he went out again and saw two Jews, Datan and Aviram, quarreling with each other. It was then that Moses understood the reason and said, "Surely the matter is known." From where do the wicked goyim draw the power to take the kavod for themselves and humiliate the Nation of Israel? It is from the fighting and quarreling between the Jews themselves and from their informing on one another. This is why the people of
Israel deserved, more than all the seventy nations, to be humiliated and humbled, because when the children of Israel do not treat each other with respect—and even worse, when they humiliate and demean one another—this damages both G-d's honor and the honor of the Nation of Israel and gives the goyim the power to humiliate the Nation of Israel.
This is the reason why the Nation of Israel deserved to undergo such a suffering in Egypt, more than all the seventy nations: because all the other nations are not connected to the honor of G-d. Only the people of Israel, of whom each one contains part of the kavod of the Shechinah (Divine Presence), are connected to the honor of G-d, for everything was created only for them, as it is written: "I created them for my honor" (Isaiah 43:7). Israel is called "His honor" (see Likutei Moharan I, 14). When Jews do not show respect for one another, the goyim and the wicked take the honor for themselves and humiliate and enslave the children of Israel.
All this applies to each and every one of us, especially at this time when we are very close to the coming of the Messiah. Rabbi Natan explains it with a parable: It is like when two people are fighting and one of them sees that the other is close to victory. He then will make an extra valiant attempt to overcome his foe. So too, because we are very close to the coming of the Messiah, the Sitra Achra ("the Other Side") wants to push off the redemption through creating controversy, by causing one person to depreciate the honor of another, and especially by creating arguments between the tzaddikim who are on a higher level and therefore have a greater level of kavod. And when the kavod of the tzaddikim is damaged, G-d forbid, it is much, much more terrible. In fact, as we saw above, Rebbe Nachman taught that a person should be very careful not to take the honor for himself; the real honor is when a person is careful to show respect for others, as it is written: "for those who honor Me shall I honor" (Samuel I, 2:30). And as our sages said, "Who is he that is honored? He who honors his fellow human beings" (Pirkei Avot 4:1).
When we are careful with each other's honor and when the entire Nation of Israel will together assemble all the parts of the kavod of the Shechina, then the honor of G-d will be perfected and the kingship and honor will ascend and return to G-d in perfection, and then we will be privileged to be redeemed from this exile. May we soon merit to see the perfection of G-d's honor.
(Based on Likutei Halachot Chovel b'Chavero 3:5)
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Interim report – Q1 2017/18 (the period 1 November 2017 – 31 January 2018)
Full-year guidance for 2017/18 is maintained
The Board of Directors of Roblon A/S has today considered and approved the interim report for Q1 2017/18
Roblon has concluded an agreement to sell the largest part of the Engineering segment effective at 23 February 2018. The profit/loss from the divested business for Q1 2017/18 is reported under discontinued operations, and comparative figures have been restated.
Guidance for 2017/18:
Highlights of the Q1 interim report of the continuing operations of the Roblon Group:
* The order intake was DKKm 48.7 (DKKm 45.9).
* The order book at 31 January 2018 stood at DKKm 34.4 (DKKm 40.2).
* Revenue was DKKm 63.9 (DKKm 34.5).
* Operating profit (EBIT) was DKKm 10.5 (DKKm 3.4).
* Profit before tax was DKKm 11.5 (DKKm 4.4).
* Profit before tax was DKKm 9.0 (DKKm 3.4).
The consolidated revenue and performance for Q1 2017/18 was better than expected. However, revenue for the quarter was positively affected by project sales which were projected to be realised over a period later in the financial year. The positive development thus does not change Management's full-year guidance for the Group, which, as stated in announcement no. 2/2018, is also affected by overhead costs of around DKKm 6 that were previously allocated to and included in the profit/loss from the divested part of Roblon Engineering.
After Q1, Management maintains its guidance for 2017/18 as set out in announcement no. 2/2018. For the financial year 2017/18, unchanged revenue of around DKKm 235 and profit before tax of around DKKm 25 is forecast in respect of the Group's continuing activities.
Roblon A/S
Jørgen Kjær Jacobsen Lars Østergaard
Chairman of the Board Managing Director and CEO
Enquiries regarding this announcement should be addressed to: Managing Director and CEO Lars Østergaard, tel. +45 9620 3300.
Financial highlights
for the Roblon Group
Financial ratios
for the Roblon Group
(1) The interim report has not been audited or reviewed by the company's auditors.
(2) The ratio is calculated on a full-year basis.
(3) Continuing operations
(4) The ratio has not been converted to full-year figures
The ratios are defined in the accounting policies section on page 82 of the 2016/17 annual report.
Management's review
Comments on the performance in Q1 2017/18.
* Composite (composite materials for onshore and offshore industries)
Roblon has concluded an agreement, effective at 23 February 2018, to sell the largest part of the Roblon Engineering business segment, comprising sale of rope-making equipment, twisters and winders. Company Announcement No 2-2018 "Roblon enhances focus on the Industrial Fiber business segment" provides details about the transaction.
Management's resolution to initiate the above-mentioned sale was made at Roblon's board meeting held on 19 December 2017.
The Group's profit for Q1 2017/18 from the divested business is reported as profit/loss from discontinued operations, and comparative figures have been restated. Net assets transferred in connection with the sale are reported in the consolidated balance sheet under assets held for sale and liabilities relating to assets held for sale.
After the sale of the largest part of Roblon Engineering business segment, Roblon will report on a single segment. Revenue will consequently be disclosed by product groups in the notes to the interim report and the product groups are:
* FOC (optic cable components and cable machinery for the fibre optic cable industry)
Consolidated income statement
The consolidated revenue and performance for Q1 2017/18 was better than expected. However, revenue for the quarter was positively affected by project sales which were projected to be realised over a period later in the financial year.
Order intake
The Group's order intake was DKKm 48.7 in Q1 2017/18, an improvement of 6.1% on last year (2016/17: DKKm 45.9). The DKKm 2.8 improvement was composed of a DKKm 9.3 improvement in FOC, of which DKKm 8.3 related to the acquired business in the USA, and a DKKm 6.5 decline in Composite
Book-to bill was 76.2% for Q1 2017/18 (2016/17: 133.0%).
Revenue
For Q1 2017/18, Roblon's revenue amounted to DKKm 63.9, compared with DKKm 34.5 for the same period last year. Of the DKKm 29.4 improvement, DKKm 23.2 was generated by FOC and DKKm 6.2 by Composite. Of the total DKKm 29.4 improvement, DKKm 11.6 related to last year's business acquisition in the USA.
The USD/DKK development did not affect reported consolidated revenue for Q1
2017/18. The Group's outlook for 2017/18 is based on a projected USD/DKK exchange rate of 625.
Gross profit and gross margin
The Group's gross profit amounted to DKKm 31.1, a year-on-year increase of DKKm 12.3, of which DKKm 3.2 related to the business acquired in the USA last year. The gross margin for Q1 2017/18 amounted to 48.7%, a drop compared to last year's gross margin of 54.5%, which was entirely attributable to the diversified revenue mix.
Other external costs
Other external costs amounted to DKKm 7.5, which was an increase of DKKm 3.1 compared to last year. Of the total increase, DKKm 2.5 was attributable to the US subsidiary.
Staff costs
Staff costs increased from DKKm 9.5 for Q1 2016/17 to DKKm 11.8 in Q1 2017/18, and the increase was due to recruitments in sales and development due to the increased focus on these areas.
Depreciation, amortisation and impairment
The Group's depreciation, amortisation and impairment amounted to DKKm 2.2, which was an increase of DKKm 0.6 compared with last year. Of the total increase, DKKm 0.6 related to amortisation, depreciation and impairment of intangible assets and property, plant and equipment added in connection with last year's acquisition in the USA.
Operating profit (EBIT)
For Q1 2017/18, operating profit (EBIT) was DKKm 10.5, against DKKm 3.4 in the year-earlier period.
Net financial items
Financial items amounted to net income of DKKm 1.0, in line with last year.
Profit before tax from continuing operations
The profit before tax from continuing operations for Q1 2017/18 amounted to DKKm 11.5, which was an increase of DKKm 7.1 compared with last year.
Tax
Tax is calculated at a rate of 22% of profit for the year before tax.
Discontinued operations
Profit/loss from discontinued operations after tax was a loss of DKKm 0.5 for Q1 2017/18. It related to the operating results for the largest part of the Roblon Engineering business segment, which was sold effective at 23 February 2018 (2016/17: DKKm 1.3 relating to the discontinuation of Roblon Lighting).
Profit for the period
Profit for the period after tax from continuing and discontinued operations was DKKm 8.5 in Q1 2017/18, against DKKm 4.7 last year.
Consolidated balance sheet
Total assets for the Group amounted to DKKm 286.0 at 31 January 2018 – a DKKm 3.7 decrease from last year.
Assets held for sale and liabilities relating to assets held for sale in the balance sheet at 31 January 2018 related to the sale of the largest part of the Roblon Engineering segment. Comparative figures have not been restated.
The Group's net working capital amounted to DKKm 50.8 at 31 January 2018, corresponding to 19.9% on full-year recalculation of realised revenue for Q1 2017/18. In the annual report for 2016/17, net working capital was reported at DKKm 80.4 and realised revenue at DKKm 284.5. Since 31 October 2017, the ratio of working capital to revenue has dropped from 28.3% to 19.9%.
Total investment in product development amounted to DKKm 1.4 for Q1 2017/18, against DKKm 0.2 last year. Investments in property, plant and equipment declined to DKKm 1.0 in Q1 2017/18 from DKKm 4.9 in the year-earlier period.
The Group's equity stood at DKKm 242.5 at 31 January 2018, against DKKm 240.6 at 31 October 2016. The equity ratio at 31 January 2018 was 85%, against 83% last year.
Consolidated cash flows
The Group's contribution of cash from operations in Q1 2017/18 was DKKm 6.6, against DKKm 0.0 last year.
Securities were sold in Q1 2017/18, resulting in a net cash inflow of DKKm 15.1 from the Group's investing activities, against a net cash outflow of DKKm 5.5 last year.
Contribution of cash from financing activities, related to dividend payments, was an outflow of DKKm 16.0 in Q1 2017/18, in line with last year.
Capital resources
At 31 January 2018, marketable securities and net cash amounted to DKKm 88.6, against DKKm 98.2 last year. In addition to this, Roblon has an undrawn credit facility of DKKm 10.0 with the Group's bankers.
Outlook for 2017/18
The consolidated revenue and performance for Q1 2017/18 was better than expected. However, revenue for the quarter was positively affected by project sales which were projected to be realised over a period later in the financial year. The positive development thus does not change Management's full-year guidance for the Group, which, as stated in announcement no. 2/2018 is also affected by overhead costs of around DKKm 6 that were previously allocated to and included in the profit/loss from the divested part of Roblon Engineering.
After Q1, Management maintains its guidance for 2017/18 as set out in announcement no. 2/2018. For the financial year 2017/18, unchanged revenue of around DKKm 235 and profit before tax of around DKKm 25 is forecast in respect of the Group's continuing activities.
Forward-looking statements
The above forward-looking statements, in particular revenue and earnings projections, are inherently uncertain and subject to risk. Many factors are beyond Roblon's control and, consequently, actual results may differ significantly from the projections expressed in this interim report. Such factors include, but are not limited to, changes in market and competitive situation, changes in demand and purchasing behaviour, foreign exchange and interest rate fluctuations and general economic, political and commercial conditions.
Roblon's sales are characterised by a structure based on project sales. This makes it difficult at any given time to forecast future revenue for a specific period, i.e. three-month, six-month or 12-month periods.
Financial calendar
Announcements
– NASDAQ Copenhagen
During the period 1 November 2017 to 13 March 2018, the company sent the following announcements to NASDAQ Copenhagen; these can be found on the company's website, www.roblon.com.
Statement by the Management
The Board of Directors and Executive Management have today considered and approved the interim report of Roblon A/S for Q1 2017/18 (the period 1 November 2017 to 31 January 2018).
The interim report, which has not been audited or reviewed by the company's auditor, is presented in accordance with IAS 34 "Interim Financial Reporting" as adopted by the EU and additional requirements under the Danish Financial Statements Act.
It is our opinion that the interim financial statements give a true and fair view of the Group's assets, liabilities and financial position as of 31 January 2018 and of the results of the Group's operations and cash flows for Q1 2017/18.
Furthermore, in our opinion the management's review includes a fair review of the development and performance of the Group's business, results for the period and the Group's financial position together with a description of the principal risks and uncertainties that the Group faces.
Frederikshavn, 13 March 2018
Executive Management
Lars Østergaard Managing Director and CEO
Board of Directors
Jørgen Kjær Jacobsen Chairman
Randi Toftlund Pedersen
Carsten Michno Chief Financial Officer (CFO)
Ole Lønsmann Andersen Deputy Chairman
Nita Svendsen Employee representative
Kim Müller Chief Operating Officer (COO)
Peter Sloth Vagner Karlsen
Flemming Nielsen Employee representative
Consolidated income statement
for the period 1 November 2017 to 31 January 2018
Consolidated statement of comprehensive income
for the period 1 November 2017 to 31 January 2018
Consolidated balance sheet
at
Consolidated statement of changes in equity
Consolidated statement of cash flows
for the period 1 November 2017 to 31 January 2018
Notes to the financial statements
1. Accounting policies
2. Estimates
3. Seasonality
4. Segment reporting
5. Sale of business operations
The most significant estimates made by Management in the application of the Group's accounting policies, and the most significant uncertainties associated therewith, in preparing the consolidated interim report are identical to those applying to the preparation of the annual report for 2016/17.
Note 1 – Accounting policies
The interim report is presented in accordance with IAS 34 "Interim Financial Reporting" as adopted by the EU and Danish disclosure requirements for listed companies. No interim report has been prepared for the parent company.
The accounting policies applied in the interim report are consistent with those applied in Roblon's annual report for 2016/17, which was prepared in accordance with the International Financial Reporting Standards (IFRS) as adopted by the EU and additional Danish disclosure requirements for annual reports of listed companies. For a more detailed description of the accounting policies, see the annual report for 2016/17.
New or amended standards and interpretations which have come into force effective for the financial year 2017/18 have no effect on recognition and measurement.
Note 2 – Estimates
The preparation of interim reports requires Management to make accounting estimates that will affect the accounting policies and recognised assets, liabilities, income and costs. Actual results may differ from these estimates.
Note 3 – Seasonality
The Group's activities in the interim report have not been affected by seasonal or cyclical fluctuations.
Note 4 – Segment reporting
In 2015/16, Roblon changed its segment reporting to comprise three segments: Industrial Fiber, Lighting, Engineering. During the financial year 2016/17, Roblon Lighting was divested and, as announced in company Announcement no. 2/2018, the largest part of Roblon Engineering was divested on 23 February 2018 with effect at 14 March 2018.
As a consequence of these two divestments, the Group's segment reporting will comprise a single segment as from 1 November 2017, and additional information on external revenue by product groups will be disclosed in the notes to the financial statements.
Effective at 1 November 2017, the Roblon Group has the following product groups:
* FOC (comprising cable materials and cable machinery for the fibre optic cable industry)
* Composite (comprising composite materials for onshore and offshore industries)
Of the Group's non-current assets, DKKm 44.2 were located in Denmark (2016/17: DKKm 63.0) and DKKm 14.6 in North America (2016/17: DKKm 0).
The Group's revenue was largely derived from the sale of goods.
Of the Group's total revenue, DKKm 11.5 (DKKm 10.2) and DKKm 8.5 (DKKm 5.1) related to two of the Group's major customers. Accordingly, revenue from these two customers constituted more than 10% of the Group's total revenue for Q1 2017/18 and 2016/17. These customers' percentage of total revenue dropped from 44.3% to 31.3% in Q1 2017/18.
10 / 11
Notes to the financial statements
Note 5 – Discontinued operations
Roblon has concluded an agreement, effective at 23 February 2018, to sell the largest part of the Roblon Engineering business segment, comprising sale of rope-making equipment, twisters and winders. Information on the transaction can be found in Company Announcement No 2-2018 "Roblon enhances focus on the Industrial Fiber business segment". The profit/loss for Q1 2017/18 from these operations is reported as discontinued operations, and comparative figures have been restated. The selling price payable to Roblon on a debt-free basis is DKKm 64, and Roblon expects net proceeds from the sale after transaction costs of around DKKm 10.
The restated comparative figures for Q1 2016/17 and full year 2016/17 furthermore comprise the profit/loss of Roblon Lighting, which was divested in 2017 and was also reported as discontinued operations for the period.
11 / 11
|
ANNUAL REPORT 2022-2023
MJRSC-THE CARE NETWORK
A NOTE FROM THE EXECUTIVE DIRECTOR
The 2022-2023 year brought much growth, change, and success for the organization. MJRSC – The Care Network began the relocation of its primary office space to its new location at 25 Rothermel Drive, Yeagertown, PA 17099. The move was broken up into two phases; the first phase took place the week of November 14, 2022, and the second phase was completed in the week of February 19, 2023. The Care Network saw changes in leadership this fiscal year, including a new Executive Director, Samantha Slautterback, and Area Agency on Aging Director, Chelsea Reed. Additionally, the Area Agency on Aging grew by one, adding a Case Aide position to the Care Management team.
The Care Network continued to offer the Money in Your Pocket Tax Program for Mifflin and Juniata Counties under the leadership of the United Way of the Capital Region. In total, 545 low- and moderate-income citizens taxes were prepared by 9 volunteers and employees. This is an increase over the last fiscal year of 79 individuals. Taxes were completed in-person this year.
The annual Senior Games event was held during the week of June 12-17 with 140 active participants, one of the biggest crowds to date. This year, Senior Games extended its events to include Saturday activities at Body and Soul. Popular events included chair volleyball, cornhole, water volleyball, pickleball, and table tennis. Painting by Judy was also added as a new event this year and was very well attended. Yard games included the football throw, softball throw, soccer kick, bucket ball, bocce ball, and more.
This fiscal year, 553 consumers received Home Delivered Meals, an increase of 43 consumers over the previous fiscal year. Home Delivered Meals provide homebound individuals with a nutritious, high-quality meal for each day of the week. Volunteers of The Care Network distribute these meals twice a week. Without the volunteers who give their time each week to personally deliver meals door to door, this program would not be possible. For those older adults who have mobility outside the home, congregate meals are offered daily at all 4 senior centers operated by The Care Network. This fiscal year, 190 consumers received a congregate meal, an increase of 44 individuals from last year.
The Care Network remains committed to maximizing the independence and well-being of older adults and adults with disabilities in Mifflin and Juniata Counties. I am thankful to The Care Networks employees for their hard work, dedication, and the continued time and support of 93 volunteers. Without you, we would not have accomplished these successes in the community over the last year. I am excited for the continued opportunities for growth that are to come for the organization in the upcoming year – stay tuned!
All the best,
Samantha Slautterback MJRSC-The Care Network Executive Director
REGIONAL SERVICES CORPORATION
Mifflin-Juniata Regional Services Corporation (MJRSC) maximizes the independence and well-being of residents in Mifflin and Juniata counties. MJRSC provides administrative support and oversight to all Affiliates, while also coordinating the following direct services.
* PA MEDI—Free health insurance counseling for Medicare beneficiaries in Pennsylvania.
o 1102 CLIENTS SERVED
o 2 STAFF AND A TEAM OF 4 VOLUNTEERS
o OVER 287 VOLUNTEER HOURS
* Ombudsman Program—empowering, supporting, and
advocating for residents in long-term care facilities.
o 26 CASES SETTLED
o 49 COMPLAINTS RESOLVED
o 82.5 VOLUNTEER HOURS
* Money In Your Pocket Tax Program—provides help to income-eligible working families with completing federal and state returns and obtaining tax credits.
o 309 VOLUNTEER HOURS
o 545 CONSUMERS SERVED
o 8 DEDICATED VOLUNTEERS
* Volunteer Coordination
o MORE THAN 3,730 TOTAL HOURS SERVED
o OUR VOUNTEERS DROVE 52,578 MILES IN THEIR ROLES
* PA LINK— providing objective information, advice, and person-centered counseling.
o 11 COMPLETED PERSON CENTERED COUNSELING ENTRIES
o 54 COLLABORATIVE PARTNER AGENCY MEMBERS
| Income | |
|---|---|
| Admin. Management Fees | $839,250 |
| Other | $39,030 |
| Total Income | $878,280 |
| Expenses | |
| Wages | $483,522 |
| Benefits | $165,235 |
| Occupancy | $70,873 |
| Contracted Services | $46,980 |
| Other | $41,199 |
| Total Expenses | $807,809 |
| Unrestricted Net Assets | |
| Beginning | $905,483 |
| Ending | $975,954 |
| Difference | $70,471 |
AREA AGENCY ON AGING
The Mifflin-Juniata Area Agency on Aging (MJAAA) serves individuals age 60 and older, fostering independence, dignity, and respect through their various programs and services.
Care Management – Individual Consumers Served:
* Home Delivered Meals -553
* Home Support (laundry, shopping) -125
* Personal Care -112
* Personal Emergency Response Systems (PERS) -239
* Aging Waiver Information and Assistance
* Caregiver Support Program -315
* Domiciliary Care -4
* Needs Assessments -614
Protective Services—investigates abuse, neglect, exploitation, and abandonment of older adults. Anyone may make a report to the Mifflin-Juniata Area Agency on Aging, and a reporter's information always remains confidential. Staff investigated 217 cases this year.
Senior Community Services
* Nutrition Services reached 742 unduplicated consumers through Home Delivered Meals and Congregate Meals served at our local centers. Additionally, a monthly box of nutritious food is provided to low-income seniors through the Central PA Food Bank. Income
* 37 th Annual Senior Games: 140 registered participants competed in bocce ball, soccer kick, water volleyball, football toss, virtual archery, mini golf, and more!
* Centers In Motion - Active seniors age 55 and older who are interested in bus trips, workshops, educational opportunities, and more! We hosted 69 program events this year.
* Senior Centers- each center offers opportunities for nutritious meals, social activities, and a range of programs open to all adults age 60 and older.
o Four Seasons Center (Mifflintown): 717-436-6847
o McAlisterville Center: 717-463-3588
o Lewistown Center: 717-242-1036
o Milroy Center: 717-667-2547
| Income | |
|---|---|
| PA Dept. of Aging | $2,918,196 |
| Other | $154,316 |
| Total Income | $3,072,512 |
| Expenses | |
| Wages | $759,457 |
| Benefits | $330,681 |
| Occupancy | $214,713 |
| Contracted Services | $894,239 |
| Admin. Services | $649,500 |
| Other | $223,922 |
| Total Expenses | $3,072,512 |
| Unrestricted Net Assets | |
| Beginning | $217,933 |
| Ending | $211,366 |
| Difference | $(6,567.00) |
CALL A RIDE SERVICE (CARS)
Call A Ride Service (CARS) is a shared ride, door-to-door, bus transportation service that is available to any resident of Mifflin or Juniata County who has registered with the CARS office. Transportation runs during daytime hours Monday through Saturday. All CARS buses are equipped with seat belts and wheel chair lifts to ensure safe and accessible accommodations.
* Total number of one-way rides for local customers in the 2022-2023 Fiscal Year: 35,640
* The Pennsylvania Lottery Fund provided 17,271 one-way rides for residents of Mifflin and Juniata Counties
* The Medical Assistance Transportation Program (MATP) funded 15,609 one-way rides
* The Persons with Disabilities Program provided 2,756 rides to eligible consumers age 18-64
* Volunteers provided out-of-county transportation to medical appointments for 261 individuals this year
* CARS added 3 new vehicles to their fleet in June of 2023 through PennDOT's Capital Grant Program, which maximizes efficiency and safety.
* While CARS rides are available for all sorts of trips, Medical appointments were our most popular category with 12,957 one-way trips this fiscal year.
| Income | |
|---|---|
| PA Dept. of Aging | $38,529 |
| Penn DOT | $626,216 |
| PA Dept. of Human Services | $777,289 |
| Other | $70,516 |
| Total Income | $1,512,550 |
| Expenses | |
| Wages | $471,357 |
| Benefits | $162,110 |
| Contracted Services | $90,457 |
| Depreciation | $193,790 |
| Administrative Services | $189,750 |
| Other | $1,402,492 |
| Total Expenses | $1,170,960 |
| Unrestricted Net Assets | |
| Beginning | $1,330,656 |
| Ending | 1,440,714 |
| Difference | $110,058 |
2022-2023 BOARD OF DIRECTORS
Mifflin-Juniata Regional
Mifflin-Juniata
Call A Ride Services, Inc.
Services Corporation
Board of Directors
Samantha Slautterback,
Executive Director
OFFICERS
Lou Ann Fisher—President
Mark Partner—Vice President
Harry Margritz—Treasurer
Kevin Kodish—Secretary
MEMBERS
Alice Gray
Cher Harpster
Colette Hartzler
Donis Zagurskie
Marie Mulvihill
Rick Bender
Sandy Hershey
Area Agency on Aging, Inc.
Board of Directors
Chelsea Reed,
Affiliate Director
OFFICERS
Kevin Kodish—President
Allison Fisher—Vice President
Beth Zong—Treasurer
Mark Partner—Secretary
MEMBERS
Alice Gray
Bob Henry
Crystal Paige
Harold Jenkinson
Jackie Leister
Steven DeArment
Wanda Gable
Steve Bell
MJRSC-The Care Network expresses gratitude to Lou Ann Fisher, Cheryl Bressler, and Beth Zong for their contributions to the organization in their terms of service to our Boards of Directors.
Board of Directors
Cindy Sunderland,
Affiliate Director
OFFICERS
Marie Mulvihill—President
Bonnie McCurry—Vice
President
Kevin Kodish—Treasurer
MEMBERS
Alice Gray
Kathie Graham
Kristy Hine
|
The Temporal Efficiency of SO2 Emissions Trading by A. Denny Ellerman and Juan-Pablo Montero
02-003 WP
September 2002
The Temporal Efficiency of SO2 Emissions Trading
A. Denny Ellerman and Juan-Pablo Montero *
Abstract
This paper provides an empirical evaluation of the temporal efficiency of the U.S. Acid Rain Program, which implemented a nationwide market for trading and banking sulfur dioxide (SO2) emission allowances. We first develop a model of efficient banking and select appropriate parameter values. Then, we use aggregate data from the first seven years of the Acid Rain Program, to assess the temporal efficiency of the observed banking behavior. We find that banking has been surprisingly efficient and we discuss why this finding disagrees with the common perception of excessive banking in this program.
* Ellerman <firstname.lastname@example.org> is with the Center for Energy and Environmental Policy Research (CEEPR) and the Sloan School of Management, Massachusetts Institute of Technology (MIT). Montero < email@example.com > is with the Department of Economics, Catholic University of Chile, and he was a visiting professor at the Sloan School of Management during the writing of this paper. We thank Paul Joskow, Matti Liski, Robert Stavins, Robert Pindyck, Dick Schmalensee, Stephen Smith, Martin Weitzman and seminar participants at Harvard, MIT and University College London for useful comments; Brice Tariel for research assistance; and CEEPR and the U.S. EPA (STAR grant award #R-82863001-0) for financial support.
1. Introduction
Emissions trading usually refers to trades across space in the same period of time, but it can also refer to trades through time, typically by banking, which implies being able to carry over unused allowances from one period for use in later periods. 1 Over the past decade, this latter dimension of emissions trading has drawn increasing attention in the literature and current proposals to decrease emission caps suggest a larger role for banking in the future. 2 Several authors have studied the theoretical properties of intertemporal trading, 3 but no work has yet evaluated how firms have actually responded to the possibility of trading emissions through time. The U.S. Acid Rain Program (Title IV of the 1990 Clean Air Act Amendments) provides a unique opportunity to do so since it allows banking (but not borrowing) and it is by far the most significant experiment in emissions trading to date.
By every measure, banking has been a major form of emissions trading in the U.S. Acid Rain Program. During the first five years of the program constituting Phase I, 1995-99, only 26.4 million of the 38.1 million allowances distributed were used to cover emissions. The remaining 11.65 million allowances (30% of all the allowances distributed) were banked. Equivalently, the reduction in emissions during Phase I was about twice what was required to meet the Phase I cap. 4 Then, in 2000-01, 2.8 million, or about a quarter, of these banked allowances were used to cover SO2 emissions that were
1 Logically, borrowing could also be included, but it is usually not.
2 President Bush's Clear Skies Initiative would reduce the existing U.S. SO2 emissions cap by another 70% in two steps starting in 2010 and current legislative proposals before the U.S. Congress would effect similar reductions. Moreover, an effective policy for reducing atmospheric greenhouse gas concentrations would likely include emission caps that would become more stringent over time.
3 See Rubin (1996) and Cronshaw and Kruse (1996) for general formulations; Schennach (2000) for a formulation specific to the U.S. Acid Rain Program; and Rubin and Kling (1993) for a simulation of a potential banking program for hydrocarbon emission standards imposed on light-duty vehicle manufacturers.
4 A reasonable estimate of counterfactual emissions from all the units receiving allowances during the five years of Phase I is 48 million tons. The difference between this estimate of what emissions would have been without the Acid Rain Program and observed emissions from these same units is about 21 million tons, or a little more than twice the amount of abatement required to achieve the five-year cap of 38 million tons.
greater than the issuance of allowances for use in these years under the much tighter Phase II SO2 emission cap. 5
Banking was expected to occur in the Acid Rain Program, but there was little agreement on the size of the bank at the end of Phase I. The two-phased structure of the program created what would have been, without banking, an obvious and significant difference in required abatement between Phases I and II, and thus in the expected marginal cost of abatement. The provision permitting an unlimited carry-over of unused allowances made the equalization of marginal costs on a discounted basis possible and thereby provided the incentive for agents to abate more in Phase I and to use the banked allowances to abate less in the early years of Phase II. While all analyses agreed that banking would occur, early estimates of the size of the bank at the end of Phase I varied by a factor of five: from two to ten million tons. As Phase I began, one consulting firm created a small sensation by predicting a bank as large as 15 million tons. 6
Enough years have passed that an evaluation of the temporal efficiency of this aspect of emissions trading can be made. The accumulation phase of the banking period is over, the size of the end-of-Phase-I bank is known, and the rate of draw down in the first two years of Phase II can be observed. In contrast to the earlier papers on banking, which developed theoretical properties or simulated what might occur in a particular program, this paper looks at aggregate behavior in an actual program over a period of
5 Phase II, beginning in the year 2000, differs from Phase I in both the stringency and the scope of the required emission reductions. In Phase I, units larger than 100 MW e capacity and with 1985 emission rates of 2.5 #/mmBtu or higher were required to be subject to the SO2 cap and to reduce emissions to an average emission rate equal to 2.5 lbs. SO2 per mmBtu of heat input (#/mmBtu) times average 1985-87 (baseline) heat input. In Phase II, all fossil-fired generating units greater than 25 MW e were subject to SO2 caps, regardless of historical emission rates, and they were required to reduce emissions, absent any trading, to an amount that is less than half the Phase I rate: 1.2 #/mmBtu times baseline heat input. Units with a 1985 emission rate less than 1.2 #/mmBtu received allowances equal to baseline heat input times the 1985 emission rate.
6 A report from the General Accounting Office published in December 1994 (USGAO, 1994) projected a Phase I bank of two million tons. An earlier and more thorough analysis by EPRI published in August 1993 (EPRI, 1993) predicted a bank "between 5 and 10 million tons, with our current projections at the higher end of the range." RDI, a coal and electric utility consulting firm, forecast a 15 million ton bank in mid1995 as the first emission monitoring reports became available (RDI, 1995). A later EPRI report (EPRI, 1997) written with the benefit of the 1995 compliance data stated: "The bank size by 2000 is surprisingly uncertain—from 10 to 15 million short tons."
time that spans about half of the entire banking period and assesses whether observed behavior is efficient. 7
Contrary to the common perception of excessive banking during Phase I, 8 we find that the evolution of the SO2 allowance bank has been reasonably efficient. We argue that this misperception has been largely based on two mistakes: the use of a higher discount rate for SO2 allowances than is warranted by price behavior in allowance markets and an assumption of less ability to adapt to the significantly lower than expected allowance prices at the beginning of Phase I coupled with a misunderstanding of the effect of that adjustment on the banking behavior of electric utilities.
The rest of the paper is organized as follows. Section 2 presents the model of banking that is used to generate efficient banking paths for comparison with observed banking behavior. Section 3 discusses the key assumptions underlying any banking program—program-specific parameters and assumptions about counterfactual emissions, the cost function, and the discount rate—and it provides estimates of the appropriate values for simulating efficient SO2 allowance banking. Section 4 compares observed banking with simulated efficient paths and draws inferences from that comparison. Section 5 discusses why the findings from this research differ from the common perception of excessive SO2 allowance banking. We conclude in section 6.
2. A Model of Efficient Banking
The theory of permits banking follows directly from the theory of nonrenewable resources pioneered by Hotelling (1931). Because the cost of creating the permits that constitute the cap is zero, a banking model with no uncertainty and perfect competition would predict that during the banking period the price P(t) of permits will rise at the riskfree rate of interest r, r t P t P = ) ( /) ( & , where a dot denotes a time derivative. In practice,
7 Since a permits bank is similar to a non-renewable resource, this paper also adds to the extensive literature on the empirical validity of the Hotelling's rule to predict price and extraction paths (e.g., Farrow, 1985). In this regard, our paper provides a simpler test because we do not need to deal with extraction costs (and how they change as the resource is exhausted) and uncertainty regarding the size of the resource. We do have, however, some uncertainty on the demand side due to counterfactual emissions.
8At least, that was our perception before writing this paper (Ellerman et al., 2000; Smith et al., 1998).
however, firms will not know with certainty the number of permits they will demand in the near and distant future, and consequently, the market equilibrium price of permits becomes an uncertain variable. 9
When the price and demand for permits are random variables, investments in abatement and holding permits are no longer risk-free activities, and affected firms will choose an abatement path that minimizes their expected present value of compliance costs using an appropriate risk-adjusted discount rate ρ . Risk-adverse agents will diversify this risk by holding a portfolio of assets including permits.
Because modeling the efficient path of the SO2 allowance bank is analogous to modeling the efficient extraction path of an exhaustible resource sold in a competitive market under conditions of uncertainty, we follow the approach put forward by Slade and Thille (1997), who combined the Hotelling model for pricing exhaustible resources with the capital asset pricing model (CAPM) for risky assets. Accordingly, the evolution of allowance prices during the banking period is governed by the arbitrage condition
where Et is the expected value operator, r m is the expected rate of return on a well diversified market portfolio, and β , a common financial variable that determines the asset-specific risk premium, is the ratio of the covariance of ρ and r m to the variance of r m , that is 2 / m m σ σ β ρ = . Note that both r and r m can change overtime.
In a continuous setting efficient banking also requires instant cost minimization, i.e., at each point in time firms equalize their marginal abatement costs to the current market price. Assuming that there is a sufficiently large number of individual firms so that the aggregate abatement cost function is strictly convex, continuous and twice differentiable, the arbitrage condition can be rewritten as a function of the aggregate marginal abatement costs, )) ( ( t q C′ , as follows
9 In the case of the SO2 program, firms are never certain about future electricity demand and the future prices for fuels of differing sulfur content.
where q(t) is the total amount of abatement at time t.
A further condition that must hold during the banking period is that the cumulative number of allowances issued equal cumulative emissions. 10 Therefore, at any time t during the banking period, the time τ at which the bank is expected to end must satisfy the exhaustion condition 11
where B(t) ≥ 0 is the size of the allowance bank at t, 12 a(t) is the number of allowances allocated at t that is specified by the legislation, and u(t) are counterfactual emissions, i.e., emissions that would have been observed in the absence of the SO2 trading program, so actual emissions are u(t) – q(t).
In addition, a terminal condition must hold at τ . At that point in time and thereafter, temporal trading ceases and the only form of emissions trading observed will be spatial trading. 13 Emissions must be equal to the cap, a(t), for each period of time thereafter; and abatement, which will determine the marginal cost of abatement and the price of allowances, will be equal to the shortfall of allowances from counterfactual
10 In exhaustible resource markets, this condition is commonly known as the exhaustion condition.
11 Note that to allow for an allowance carry over at the end of the banking period a small negative term on the left hand side should be added. Numerical exercises, however, indicate a minor effect on the efficient banking path. For example, a large carry over of as much as 20% (2 million allowances) would increase the size of the bank at the end of Phase I by less than 2%.
12 Initially we have that B(0) = 0.
13 Differences between the current price and price expected in the next period may cause an allowance inventory to be built up and drawn down after τ. This form of intertemporal trading will occur mostly between adjacent years and never lead to the multi-year accumulation and draw-down that characterizes the transition between Phase I and Phase II.
emissions. Thus, at any time t during the banking period, the time τ at which the bank is expected to end must also satisfy the terminal condition
Conditions (1), (2) and (3) together with assumptions about both counterfactual emissions u(t) and the functional form of the aggregate abatement cost function C(q) allows us to solve for τ and derive explicit efficient abatement and banking paths during the banking period. Counterfactual emissions are modeled as emissions at t = 0 increasing at some (varying) rate, g(t), that is, u(t) = ui(0)e G ( t ) , where i = 1 during the Phase I years and 2 thereafter, and ∫ = t ds s g t G 0 ) ( ) ( . To estimate actual counterfactual emissions at time t, we let g to change from 0 to t according to past information on actual emissions and fuel use. 14 To estimate the evolution of expected counterfactual emissions beginning at t, we simply assume that agents expect g to remain constant throughout.
For abatement costs we assume that aggregate marginal abatement costs depend on aggregate abatement in the following form
The scaling parameter, α i, takes the subscript 1 during Phase I and the subscript 2 thereafter. Two time-differentiated cost functions exist because Phase II expands the scope of the Acid Rain Program to include additional generating units and abatement opportunities. 15 The exponent, γ , reflects the curvature of the relationship and we assume it is the same for both the Phase I and Phase II aggregate cost functions and that it remains unchanged during the banking period. 16
14 See Ellerman et al. (2000) for more details.
15 Firms that are not affected until 2000 are nonetheless present in the market and able to accumulate a bank during Phase I by purchasing allowances.
16 The possibility of technological change will be discussed later.
Given the functional form in (4), conditions (1) and (3) can be combined to obtain the expected amount of abatement in each period ) (t q as function of abatement at τ
where T denotes the end of Phase I and q(τ ) is given by (3). Substituting (5) into (2) yields a single equation that solves for the expected end of the efficient banking path τ as function of B(t) and expectations formed at t.
We can now use the model to estimate τ and the evolution of the efficient bank at the beginning of the trading program ( t = 0) by solving
where g0 denotes the expected growth rate of counterfactual emissions at t = 0.
The two terms on the left-hand-side of (6) state the number of allowances available in Phase I and during the years of Phase II constituting the draw-down phase of banking period. The first two terms on the right-hand-side give cumulative counterfactual emissions for units affected during Phase I and for all units during Phase II up to the end of the banking period. The third term on the right-hand side states the cumulative emission reductions over the entire banking period. The term in parentheses outside the brackets is q(τ ), the amount of abatement required at t = τ , and the two terms in the brackets are indices of cumulative abatement, normalized to q(τ ), for Phase I and for the Phase II part of the banking period, respectively.
Thus, once given a set of parameter values expressing the allowance cap, counterfactual emissions, and the abatement cost function, equation (6) can be solved for τ ; and an expected efficient banking path ) (t B can be easily computed as
Although the model has been solved for parameter values estimated at the beginning of the banking period and assumed to remain constant throughout, it can be easily adapted to incorporate changes in agents' expectations or in market conditions during the banking period. With such changes, the observed banking path will reflect segments of differing efficient paths each reflecting successive starting points and the associated parameter values and accumulated banks.
3. Parameter Values
3.1. Allowances and Counterfactual Emissions
The allowance cap and the assumptions concerning counterfactual emissions define the annual required reduction of emissions absent any banking, as depicted in Figure 1. The annual allowance caps are specified in the legislation and implementing regulations. The annual, aggregate allowance cap for Phase I, a1, is 7.62 million allowances, the cap for Phase II, a2, is 9.39 million allowances, and the transition from Phase I to Phase II, T, occurs at t = 5. 17
17 A total of 38.09 allowances were distributed for the five Phase I years and the annual cap cited here is this cumulative sum divided by five. In fact, more allowances were allocated in 1995 and 1996 than in the last three years; however, the distribution of the total five-year amount among years in Phase I is without importance from the standpoint of an efficient banking program at reasonable discount rates because of the short duration of Phase I. The Phase II cap is an average for the period 2000-09 including the following components: 8.9 million allowances from the basic allocation distributed annually to units and through the EPA auction, 0.10 million allowances to ¶ 410 opt-in units, and an assumed annual average of .39 million bonus and extra allowances over this period. The assorted bonus and extra allowances amounted to .96 and .56 million allowances in 2000 and 2001, respectively, but they will be fewer in subsequent years.
Initial counterfactual emissions can be estimated with considerable accuracy. For the generating units first affected in Phase I and remaining so since then, we assume that initial counterfactual emissions, u1(0), are defined by a simple technique for calculating the counterfactual, 9.07 million tons of SO2. 18 The initial counterfactual for the much larger universe of units affected in 2000, u2(0), is the sum of the counterfactual for the Phase I units and observed 1995 emissions for the units first affected in 2000. This value is 15.79 million tons.
Estimation of the expected growth rate in counterfactual emissions, g, is subject to much greater uncertainty. Both EPRI and EPA's contractor, ICF, conducted careful early studies for the purpose of analyzing the effect and cost of the Acid Rain Program and they contained estimates, as of the early 1990s, of what emissions without the program were thought likely to be (EPRI, 1993; ICF, 1989). Although growth in the demand for electricity was expected to be between 1.5% and 2.5% per annum, expectations for counterfactual SO2 emissions varied greatly depending on assumptions about the
18 The simple counterfactual assumes that, in the absence of the SO2 program, emission rates would have remained unchanged at the values observed in 1993 for Phase I units, and that total emissions would vary according to observed changes in heat input. As discussed more extensively in Ellerman et al. (2000) and especially in the appendix by Schennach, this simple counterfactual closely tracks aggregate emissions as estimated by econometric techniques that take trends in emission rates into account.
retirement of coal fired units, the utilization of nuclear capacity, and the economic competitiveness of new gas-fired generating units. High emissions scenarios predicted emissions growing at annual rate of about 1.25% per annum through 2010, while the low emissions cases predicted either constant SO2 emissions after 2000 (EPRI, 1993) or emissions that are declining at rates between 0.5% and 1% per annum (ICF, 1989). The predicted increase in heat input was remarkably accurate (2.1% between 1993 and 2001), but the growth rate in counterfactual emissions has been much higher than expected. Over this period, the average annual rate of increase was 2.0%, considerably more than the 1.25% rate that was seen as the high end of the likely range.
While the early-1990s predictions of constant or declining counterfactual emissions are no longer plausible, it is also unlikely that the relatively high growth rate in counterfactual emissions since 1993 will continue. Two considerations are relevant. The first concerns the ability of existing coal-fired generating units to meet incremental demand by increasing utilization over the rest of the banking period, as they have over the past ten years. If these units are near capacity, so that incremental demand will have to be met by new units with low emissions, whether gas-fired units or coal units meeting stringent New Source Performance Standards, the rate of increase in emissions will be relatively low. 19 Announcements and construction of new base-load capacity, both coal and natural gas fired, over the past few years suggest that the ability of existing units to meet incremental demand is reaching a limit, even if further increases in the utilization of coal-fired units are possible, especially if the recent increase in the relative price of natural gas to coal persists.
The second consideration affecting assumptions about counterfactual emissions is what requirements may be placed on existing coal-fired units in response to other provisions of the Clean Air Act, such as new source review, visibility, fine particulates, or mercury regulations, to name only a few of the possibilities. Any requirement like these would reduce counterfactual emissions. 20
19 In fact, about ninety percent of planned generating capacity additions are gas-fired.
20 There is always the possibility that allowances freed up by such actions would be "sterilized." If so, the allowance cap is reduced by the same amount of as the counterfactual and the amount of reduction required would be the same as before.
The effect of both considerations is that a confident prediction of the growth in counterfactual emissions cannot be made, but the possibilities can be bounded. A forecast of no growth in emissions absent the cap imposed by the Acid Rain Program is no longer plausible, much less a decline in counterfactual SO2 emissions. At the other extreme, it seems unlikely that counterfactual emissions could increase at the rate of growth in electricity production, as has been the case for the past seven years, because of technical limits on increased utilization of existing coal-fired generating capacity, the effects of other provisions on the Clean Air Act on these units, and the entry of a large amount of new combined-cycle gas-fired capacity after 2000.
For the simulations in this paper, we use four different values for expected growth in counterfactual emissions, g. Based on EPA's forecast (Pechan, 1995), we use a value of g = 0.65% to provide a single value representing expectations at the beginning of Phase I. This estimate is approximately half way between the high and low emission scenarios in the early EPRI and ICF analyses of expected emissions absent the SO2 cap. Based on the observed growth in demand for electricity during the 1990s and the recent change in the price of natural gas relative to coal, we use three values for g, 1.0%, 1.25%, and 1.50%, to reflect revised expectations that would be more appropriate for evaluating the remainder of the post-2000 banking period.
3.2. The Cost Function
Two parameter values define the cost functions: the convexity parameter, γ , and the scaling parameters of the cost functions for the Phase I units, α 1, and for all units, α 2. In equation (6), only the ratio of the scaling parameters is needed and it can be easily shown using equation (3) that (α 1/α 2) 1/ γ = q2/q1, or the ratio of abatement by all units in Phase 2 to that by Phase I units in the same year. This ratio can be observed in 2000 and 2001 it is 1.21. 21
The convexity parameter indicates the rate at which marginal cost rises with the quantity of abatement, and values for this parameter can be inferred from various studies. The early EPRI study of abatement costs contains several charts of this relationship,
21 Depending on assumption about the counterfactual this ratio varies between 1.19 and 1.23. The effect of this variation on the total amount of allowances banked at the end of Phase I is less than 2%.
which is linear over the relevant range. 22 Ongoing analysis by the authors and colleagues at MIT concerning the cost of reducing SO2 emissions from the 2000 levels by retrofitting scrubbers to unscrubbed coal-fired units indicates a similar relationship (Ellerman and Joskow, 2002). Accordingly, we assume a linear relationship between the quantity and marginal cost of abatement, γ = 1.0.
With these assumptions, the marginal cost of the annual reduction required by the SO2 cap without banking can be calculated as is shown by the solid line in Figure 2. 23 This is the price dual of the quantity path given in Figure 1 and the opportunity to reduce cost or increase profit by banking is immediately evident.
Since prices can be expected to be equal to marginal costs at all times during the banking period, equation (1) implies that the actual price path with banking will depend on the discount rate, which would be a real rate since the marginal abatement cost function is stated in today's dollars. The dashed lines in Figure 2 show the price paths for real discount rates of 3%, 6%, and 9%. The end of the banking period, τ , differs for each
22 EPRI, 1993; Figures 5-4 and 6-15.
23 In making this estimate, the scaling parameter, α 2, is assigned a value of 26 that causes the simulated 2001 prices to approximate observed 2001 prices. Average monthly prices during 2001 ranged from $159 in January to $208 in August and the average monthly price for the year was $185. The price paths in Figure 2 will be shifted up or down to the extent that the true value of α 2 is higher or lower than 26, or that 2001 prices were below or above true equilibrium prices.
discount rate and higher discount rates are associated with shorter banking periods, lower initial prices, and greater increases in marginal abatement cost during the banking period. Once a banking program has ended, prices would cease rising at the discount rate and increase instead at a uniform lower rate characterizing the post-banking period. 24
3.3. The Risk-Adjusted Discount Rate
SO2 allowances are financial assets that are readily tradable and can be turned into cash. As such, holding allowances implies foregoing the return that could be earned by investing the cash during the holding period in other financial assets having similar risk characteristics. The relevant criterion for determining this return is the degree of undiversifiable risk associated with holding SO2 allowances, indicated by the beta (β) coefficient in equation (1). With over seven years of SO2 allowance price data now available, the monthly returns from holding SO2 allowances can be readily calculated and correlated with the returns from holding a broadly diversified portfolio of equities.
Table 1 provides estimates of β when the monthly returns from holding SO2 allowances are regressed by ordinary least squares on the monthly returns from holding various market indices over the same period.
| Market Index | Beta coefficient |
|---|---|
| S&P 500 | -0.098 |
| NYSE | -0.219 |
In all cases β is not significantly different from zero and the same result occurs when the same regression is made over shorter periods, for instance, leaving out the earlier
24 This rate, which is about 1.3% per annum in Figure 2, would depend upon the rate of increase in counterfactual emissions (0.65%) and the elasticity of the marginal abatement cost curve (1.0). Some inventory might be carried from year to year and actual prices might fluctuate from this post-τ path, reflecting year-to-year variations in demand, but the average annual increase in price would be less than the discount rate and as determined by the interaction between the rate of growth of counterfactual emissions and the marginal abatement cost curve.
observations when it could be argued that markets were not as well formed, or even for periods as short as two years (24 observations). The use of robust variance estimators and corrections for serial correlation do not change the result. With a beta of zero, there is no undiversifiable risk associated with holding SO2 allowances and the appropriate discount rate is the risk-free rate.
This result, which will strike most as surprising, as it did us, is critical to the analysis that follows, and indeed to any analysis of the extent to which banking, or any other form of temporal flexibility in emissions trading, is efficient.
Two factors explain this result. First, the beta associated with producing electricity is very low. Equity betas are typically around 0.5 for regulated electric utilities and 1.0 for unregulated producers of electricity, who are more highly leveraged. When the observed equity betas for these two types of electricity producers are un-leveraged to account for the equity risk associated with varying debt levels, the resulting asset betas are similar, 0.2, which is low, although not zero.
Second, and perhaps more importantly, the factors determining allowance prices are considerably different from those determining profits from generating electricity, not to mention the profits of the corporate sector as a whole. The profits of electricity producers will be influenced mostly by the price of electricity, the cost of fuel, regulatory treatment, and the growth in demand for electricity. The first three factors will have little direct influence on allowance prices, and the growth in the demand for electricity is only one of several factors determining counterfactual emissions. More important factors for the latter are the relative prices of fuels of differing sulfur content and non-Title-IV regulatory requirements affecting SO2 emissions. Whatever the effect of these factors on the profits of the owners of electricity generating assets, the effect on equity returns for the market as a whole is negligible. Thus, it is not surprising that the returns from holding SO2 allowances are uncorrelated with market returns and that the beta for SO2 allowances is zero.
Treasury notes provide the standard for determining risk-free rates of return in the U.S. economy. Since a real rate is appropriate for this analysis, inflation-indexed Treasury notes are an obvious source; however, these notes have been offered only since the beginning of 1997. 25 For estimating the risk-free, real rate for years prior to 1997, we use the one-year Treasury note less the inflation rate over the past year as indicated by the GDP deflator. Figure 3 shows the real risk-free rate determined by both of these methods.
For the period prior to 1997, the real risk-free rate fluctuates between 1.5% in early 1994 to about 4.0% in early 1995 and averages 3.1% for the period 1994-1996. From 1997 through 2000, the period when the two methods overlap, similar rates are indicated: an average of 3.9% by the inflation-indexed notes and 3.7% by the one-year note less the past year's rate of inflation. The two methods diverge significantly at the end of 2001, but lower rate reflects the steep forward curve prevailing at this time because of actions taken by the Federal Reserve to inject liquidity into the U.S. economy. For the simulations in this paper, we assume a range from 3.0% to 5.0%. The real risk-free rate for the appropriate maturity seems have been between 3% and 4% for most of the period and we use a 5% rate to illustrate the effect of using a higher than the risk-free rate.
25 In particular, we use inflation-indexed notes with maturities in 2007-2008 to span most of the likely banking period.
4. Is the Evolution of the SO2 Bank Efficient?
A convenient means of depicting alternative banking programs is to plot the accumulation and draw down of banked allowances at the end of each calendar year, as is done in Figure 4.
Figure 4: Optimal Banking Programs
14
The shaded, fuzzy line tracks the actual evolution of the SO2 allowance bank through 2001. All the other lines indicate efficient banking programs with plausible assumptions about discount rates and growth in counterfactual emissions as of 1995. The bold line in the center, which closely tracks the observed banking path through 1999, represents a program with parameter values corresponding to a 4.0% real discount rate and growth in counterfactual emissions at 0.65% per annum. The lines above and below this banking path reflect combinations of higher or lower growth in counterfactual emissions (1.25% and 0% per annum, respectively) and higher or lower discount rates (5% and 3%), as indicated in the legend to Figure 4. These variations yield larger (smaller) banking programs reflecting higher (lower) expected costs without banking because of higher (lower) rates of growth in counterfactual emissions or a higher (lower) valuation of future costs relative to the present reflecting lower (higher) discount rates.
The efficiency of the observed banking path can be assessed by comparison with these simulated banking programs either directly, by reference to a best estimate of the parameter values that would have prevailed at the beginning of the banking period, or inversely by evaluating whether the parameter values that replicate the observed banking path are reasonable. It is readily apparent in Figure 4 that the actual banking path during Phase I implies a discount rate of about 4.0% and growth of counterfactual emissions of 0.65%. These are approximately correct values; and, if anything, the real discount rate in 1995 might have been closer to 3% than to 4%, which would imply that there has been too little banking. These paths also assume that the single values of g and r representing expectations at the start of Phase I remained unchanged in the succeeding years. During Phase I, assumptions about both g and r would likely have increased somewhat, but the effects of each would have been off-setting, thereby imparting more consistency to the observed banking path than was true of the underlying parameters.
The inverse approach is helpful in evaluating the apparent departure in 2000-01 from the constant 4.0%-0.65% efficient path that fits the 1995-99 data. Figure 5 plots draw-down rates on the vertical axis against real discount rates on the horizontal axis for different assumptions about the growth in counterfactual emissions.
The bold, horizontal lines in Figure 5 indicate the observed draw-down rates in 2000 (solid line) and 2001 (dashed line) and the downward sloping lines map the points corresponding to efficient programs for the indicated values for 2000 and 2001 given the initial banks in those years. Intersections of the horizontal lines with the downward sloping lines indicate combinations of parameter values characterizing efficient banking programs. For example, the observed 2000 draw-down is consistent with the following pairs (g = 1.00%, r = 3.35%) and (g = 1.25%, r = 3.80%). If the real discount rate in late 1999 and early 2000 was between 3.75% and 4.00%, as seems likely, the observed 2000 draw-down is consistent with assumptions concerning g ranging from about 1.20% and 1.35%. As discussed earlier, the mean expectation concerning growth in the counterfactual emissions is more likely to have been close to these numbers than to the value of 0.65% that represents a reasonable reflection of expectations in 1995. Similarly, the observed 2001 draw-down is consistent with the pairs (g = 1.00%, r = 3.10%) and (g = 1.25%, r = 3.50%). Given the decline in the real discount rate during 2001, and perhaps also in expectations concerning the growth in counterfactual emissions, these combinations of g and r cannot be dismissed as implausible or clearly irrational.
5. Discussion of Results
The finding of reasonably efficient SO2 allowance banking is surprising in view of the common perception that, if anything, there has been too much banking during Phase I. Since we shared this point of view prior to conducting this research, an explanation of the misperception helps to clarify these results and the source of the misunderstanding.
5.1. Risk-free Discount Rate
The most obvious explanation for the discrepancy is the discount rate. The beta for SO2 allowances could not have been estimated in the years preceding the start of Phase I because no market existed and there were no analogous financial assets with which comparison might have been made. Most electric utilities probably used a higher discount rate appropriate for evaluating investments in electricity generation. 26 Whether utilities used a project-specific discount rate reflecting the asset beta for electricity generation or a weighted average cost of capital, the rate would have been higher than the risk-free rate. We are not aware of any published analysis of banking using a higher than risk-free rate, but anyone making back-of-the-envelope calculations using such a rate would have concluded that SO2 allowance banking was excessive.
5.2. Initial Error and Irreversibility
Another reason for the perception of excessive banking is the unexpected and persistent fall in SO2 allowance prices as Phase I got underway and a concomitant belief that much of the abatement undertaken then was irreversible. The allowance price revealed by the first EPA auction in March 1993, $131, was lower than the few trades then reported at prices ranging between $250 and $300 and an informed estimate of $250 (EPRI, 1993). More importantly, as the Phase I requirements took effect beginning in 1995, allowance prices fell even more to an all-time low, slightly under $70, in early 1996. Almost half of the abatement in the first years of Phase I resulted from investments in scrubbers, which require significant lead-times in construction and are irreversible for long periods of time. Moreover, some of the switching to low-sulfur coal involved long term contracts, which would have contributed additional elements of irreversibility.
While an initial error in expectations and significant irreversibility in abatement cannot be doubted, the critical issue is the extent to which the irreversibility would have led to a larger bank. Excessive banking would occur only if most of the abatement undertaken at the beginning of Phase I had been irreversible for the duration of Phase I. If agents had sufficient ability to adapt to lower prices, that is, if a sufficient proportion of the initial commitments to abatement were reversible in the course of Phase I, and especially in 1995 as prices were falling, the amount of excess banking would not have been very large.
The effect of sufficient ability to adapt to lower prices can be illustrated by the simulation reported in Table 2 that assumes irreversibility is completely absent. These results show the effect of an initial counterfactual, u(0), that is 10% and 20% above and
26 For instance, a real discount rate of 6% was used in EPRI (1993) for evaluating investments in scrubbers.
below the base case on allowance price, abatement, allowances banked, and emissions in the first year of the banking program, while assumptions about the discount rate, the expected growth in counterfactual emissions, and the cost function are held constant.
Table 2: Effect of Variations in the Level of Initial Counterfactual Emissions on 1995 Price and Quantities
| | 1995 Price (1995$/ton) | Abatement in 1995 (million tons) | Allowances Banked in 1995 (millions) |
|---|---|---|---|
| +20% | $162 | 5.41 | 2.11 |
| +10% | $134 | 4.48 | 2.09 |
| Base Case | $107 | 3.57 | 2.09 |
| - 10% | $80 | 2.67 | 2.1 |
| -20% | $54 | 1.81 | 2.15 |
There is a remarkable difference between the effects expressed in the first two data columns and the last two. The initial price and quantity of abatement fall significantly with lower initial counterfactual emissions; yet, the amount of banking and the level of predicted initial emissions with the cap hardly change. Since abatement in the accumulation phase of a banking program can be divided into that required for achieving the cap without banking and the additional abatement for banking, it is obvious that, when irreversibility is absent, all of the adjustment will be made in the former. The amount banked remains relatively unchanged since the different counterfactual assumptions affect the required reductions in Phase I and Phase II more or less equally and leave the difference in marginal costwhich determines the amount of bankingrelatively unchanged.
Whatever the level of the counterfactual, and therefore of the abatement to meet the cap, efficient banking would always call for more abatement in Phase I to equalize expected marginal costs between Phases I and II, even when the cap is initially nonbinding (zero marginal cost), as it would be in the minus 20% case in Table 2. In this instance, all the abatement is undertaken for the purpose of banking, and the amount banked and the initial emissions level would be only slightly changed from what they would be with an initially binding cap.
The clear implication of this simulation, when considered together with the evidence of efficient banking, is that the responses to the Acid Rain Program have been characterized by less irreversibility than has been commonly assumed. Further support for this conclusion is provided by the choices of abatement technique since 1995 by the units continuously subject to the Acid Rain Program since 1995, as shown in Table 3.
| | Scrubbing (million tons) |
|---|---|
| 1995 | 1.77 |
| 1996 | 1.88 |
| 1997 | 1.95 |
| 1998 | 1.94 |
| 1999 | 1.85 |
| 2000 | 2.03 |
| 2001 | 2.05 |
Switching, the form of abatement requiring the least lead time and having the least irreversibility, increased by about 50%, or slightly more than a million tons, while the amount of abatement from scrubbing increased relatively little from 1997, when all the Phase I scrubbers were first operating for the full year. Table 2 indicates that a 10% variation in the level of the initial counterfactual (about 1.5 million tons of SO2) translates into about 0.9 million tons of initial abatement. The magnitude of the initial error in expectations is not knowable, but the magnitudes are such that earlier intentions to abate one or even two million tons more by switching in 1995 could be presumed either to have been cancelled or to have been quickly reversed as prices fell from around $150 in late 1994 to the all time low of $70 in early 1996. Then, as allowance prices increased in the ensuing years to highs of as much as $200, much of what may have been cancelled abatement by switching was restored.
5.3. Technological Change
A final explanation for the belief that there has been too much banking in SO2 allowance trading program concerns technological change. It can be easily shown using the equations in Section 2 that the effect of including some positive rate of continuous cost diminution is the same as an equivalent increase in the discount rate. If the impact of technological change on costs is to reduce α i at a rate of δ per period, the new efficient banking paths can be obtained by simply replacing the original discount rate ρ by ρ + δ .
Although it is evident now that the cost of scrubbing has diminished over the past decade, it is not clear that this improvement in abatement costs was expected, much less that it was included in banking calculations. There is, for instance, no record of studies discussing the effects of technological change on the costs of the Acid Rain Program, much less on banking behavior. Even if expected, the effect on banking would have depended on whether the reduction in scrubber cost was a one-time event or a continuing process. If it is a one-time event, the aggregate cost function is shifted downward in both Phases I and II and the effect is the same as that of the error in initial counterfactual emissions just discussed: current abatement and price change, but not the amount of banking. The banking program would change only if future, as yet unrealized, cost reductions are expected to reduce the difference between marginal costs in Phase I and Phase II.
Whether some rate of cost diminution should now be included, and if so, what rates, are good questions. It seems unlikely that all the cost diminution in abatement has been exhausted, but it also seems evident from the inverse calculations in Figure 5 that technological change is not being included in banking calculations, perhaps inappropriately.
6. Conclusion
The results of this evaluation of the temporal efficiency of SO2 allowance banking are both reassuring and surprising. The results are reassuring in affirming once again that properly constructed markets produce good results. The surprise arises from the widespread perception of excess banking among participants and analysts in this market.
Since we shared this misperception, a good part of this paper (and an even greater part of its preparation) has been devoted to explaining it. Two assumptions seem to explain the error. The first is the belief that the appropriate discount rate for holding SO2 allowances is that for investments in electricity generating capacity, which would be higher than the rate appropriate for the zero-beta asset that we find SO2 allowances to be. The second assumption concerns the effect of an initial over-commitment to abatement on banking. Observers appear to have assumed that initial abatement was more irreversible than it was in fact, and they failed to understand the extent to which the adjustment to this error affects current abatement instead of the quantity banked.
The results of this paper should not be read as asserting that SO2 allowance banking has been efficient in any exact sense; few real-world examples of economic behavior meet this test. The uncertainties about discount rates, growth in counterfactual emissions, and abatement cost functions are too great to allow such a statement. Nevertheless, the uncertainties can be bounded within relatively narrow ranges and when these likely values are used, reasonably efficient banking is indicated. Some agents may have hoarded or even dumped banked allowances in a manner that could not be judged to be economically efficient, but these exceptions have not been important enough to affect aggregate behavior noticeably. The aggregate behavior of the SO2 bank indicates that most agents have made reasonably efficient abatement decisions during Phase I and the first two years of Phase II. 27 Perhaps, this conclusion should not be surprising. SO2 allowances are financial assets and agents should be expected to treat them accordingly, despite their novelty and peculiar attributes.
27 Montero (2002) shows that when some agents do not fully participate in the market, or are able to exercise market power, the evolution of the actual bank would noticeably differ from the evolution of an efficient bank.
References
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Anthony Yusuf
Mr Anthony Olukayode Yusuf, M.Sc. research student, Department of Quantity Surveying, Obafemi Awolowo University, PMB 003, Ile-Ife, Nigeria. Phone: +2347037590877, email: <anthonyoyusuf@yahoo. com>, ORCID: https://orcid. org/0000-0003-1574-788X
Akintayo Opawole
Dr Akintayo Opawole, Department of Quantity Surveying, Obafemi Awolowo University, PMB 003, Ile-Ife, Nigeria. Phone: +2348035125849, email: <tayoappmail@gmail. com>, ORCID: https://orcid. org/0000-0001-8326-7824
Esther Ebunoluwa
Dr Esther Ilori Ebunoluwa, Department of Quantity Surveying, Obafemi Awolowo University, PMB 003, Ile-Ife, Nigeria. Phone: +2348066226592, email: <owoyemi_ email@example.com>, ORCID: https:// orcid.org/0000-0002-1356-4142
ISSN: 1023-0564 ▪ e-ISSN: 2415-0487
Received: January 2022 Peer reviewed and revised: February 2022 Published: June 2022
KEYWORDS: Building information modelling, BIM implementation, building projects, organisational capability attributes, public sector
HOW TO CITE: Yusuf, A., Opawole, A. & Ebunoluwa, E. 2022. Evaluation of the organisational capability of the public sector for the implementation of building information modelling on construction projects. Acta Structilia, 29(1), pp. 26-58.
© Creative Commons With Attribution (CC-BY) Published by the UFS http://journals.ufs.ac.za/index.php/as
EVALUATION OF THE ORGANISATIONAL CAPABILITY OF THE PUBLIC SECTOR FOR THE IMPLEMENTATION OF BUILDING INFORMATION MODELLING ON CONSTRUCTION PROJECTS
RESEARCH ARTICLE 1
DOI:
http://dx.doi.org/10.18820/24150487/as29i1.2
ABSTRACT
Organisations are required to possess certain capabilities in order to implement Building Information Modelling (BIM), one of the emerging technologies for overcoming the problem of fragmentation in the construction industry. This study examines the organisational capability attributes required for the implementation of BIM in construction projects, with a view to enhancing the performance of public sector projects. The study adopted a quantitative descriptive analysis based on primary data obtained from public sector organisations in Lagos State, Southwestern Nigeria. One hundred and ninetyeight (198) valid questionnaires, obtained from construction professionals within the organisations, provided quantitative data for the assessment. Data collected were analysed, using both descriptive and inferential statistics. The findings indicate that public sector organisations possess the capability attributes for BIM implementation in building projects at different levels of availability (LAv) and adequacy (LAq), with adequate power supply rated
1 DECLARATION: The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
at (LAv = 76.00%; LAq = 75.80%); speedy internet connection (LAv = 70.20%; LAq = 69.80%); change from traditional workflow (LAv = 69.80%; LAq = 64.60%); adequate work environment for workers (LAv = 69.60%; LAq = 64.40%); standardised process (LAv = 66.00%; LAq = 63.40%); sufficient number of workers (LAv = 65.60%) and datasharing skills (LAv = 65.00%); standardised process (LAq = 63.40%), and collaborative team culture (LAq = 63.00%). The study established that the organisational capability attributes with high availability rating also have high adequacy rating. The research concludes that the general organisational capability attributes of the public sector for BIM on construction projects are not yet sufficiently developed and thus suggests the need to strengthen specific capability attributes that are required to implement BIM.
ABSTRAK
Daar word van organisasies vereis om sekere vermoëns te besit om Bouinligtingmodellering (BIM), een van die opkomende tegnologieë om die probleem van fragmentasie in die konstruksiebedryf te oorkom, te implementeer. Hierdie studie ondersoek die organisatoriese vermoë-eienskappe wat benodig word vir die implementering van BIM in konstruksieprojekte, met die oog daarop om die prestasie van openbare sektorprojekte te verbeter. Die studie het 'n kwantitatiewe beskrywende analise aangeneem wat gebaseer is op primêre data wat verkry is van openbare sektor-organisasies in Lagos-staat, Suidwes-Nigerië. Honderd agt-en-negentig (198) geldige vraelyste, verkry van konstruksieprofessionele persone binne die organisasies, het kwantitatiewe data vir die assessering verskaf. Data wat ingesamel is, is ontleed deur beide beskrywende en afleidingsstatistieke te gebruik. Die bevindinge dui daarop dat organisasies in die openbare sektor beskik oor die vermoë-eienskappe vir BIMimplementering in bouprojekte op verskillende vlakke van beskikbaarheid (LAv) en toereikendheid (LAq), met voldoende kragtoevoer wat gegradeer is teen (LAv = 76.00%; LAq = 75.80%); vinnige internetverbinding (LAv = 70.20%; LAq = 69.80%); verandering vanaf tradisionele werkvloei (LAv = 69.80%; LAq = 64.60%); voldoende werksomgewing vir werkers (LAv = 69.60%; LAq = 64.40%); gestandaardiseerde proses (LAv = 66.00%; LAq = 63.40%); voldoende aantal werkers (LAv = 65.60%) en vaardighede om data te deel (LAv = 65.00%); gestandaardiseerde proses (LAq = 63.40%), en samewerkende spankultuur (LAq = 63.00%). Die studie het vasgestel dat die organisasievermoëeienskappe met 'n hoë beskikbaarheidsgradering ook 'n hoë toereikendheidgradering het. Die navorsing kom tot die gevolgtrekking dat die algemene organisatoriese vermoëeienskappe van die openbare sektor vir BIM op konstruksieprojekte nog nie voldoende ontwikkel is nie en dui dus op die behoefte om spesifieke vermoë-eienskappe wat nodig is om BIM te implementeer, te versterk.
Sleutelwoorde: Bou-inligtingmodellering, BIM-implementering, bouprojekte, openbare sector, organisatoriese vermoë-kenmerke
1. INTRODUCTION
Tsang, Jardine and Kolodny (1999: 712) as well as Chuks (2022) define capability as the ability to carry out a specific function, that is getting things done in relation to quality, responsiveness and rate within a range of performance levels. In services rendering, this depends not only on technology, but human capabilities are similarly important (Straub, 2010: 1190; Koay & Muthuveloo, 2021: 188). Kangas et al. (1999: 35) and Moingeon et al. (1998: 299) define organisational capability as the strategic usage and deployment of competencies. The term 'competency' is the ability or capacity of an organisation to use its resources, in order to achieve specific organisational outcomes (Amit & Schoemaker, 1993: 35; Chuks, 2022). Organisational capability involves diverse concepts such as people, systems, processes, structures, and culture that determine the ability of organisations to deliver results (Schmidtchen & Cotton, 2014: 2; Koay & Muthuveloo, 2021: 170). It combines these concepts that contribute to continuous improvement in the performance of organisations (Schmidtchen & Cotton, 2014: 2: Koay & Muthuveloo, 2021: 170). Building Information Modelling (BIM) implementation by the public sector requires new processes, new technologies, and new behaviour and will inevitably cause organisational changes (Juan et al., 2015: 359; Hardin & McCool, 2014: 45). Such changes will force much improvement of the organisational capabilities to deliver projects (Arayici et al., 2009). These capabilities include personnel's adequacies in education, training, skills development, infrastructure, internet facilities, adequate power supply, government's support, and IT-literate personnel, among others (Abbasnejad et al., 2021b: 987; Elhendawi, Smith & Elbeltagi, 2019: 11; Onungwa, Uduma-Olugu & Igwe, 2017: 27; Bui, Merschbrock & Munkvold, 2016; Kori & Kiviniemi, 2015; Alufohai, 2012).
Dim, Ezeabasili and Okoro (2015: 001) assert that, in the Nigerian construction industry (NCI), building projects are procured through the traditional system by public and private clients. This traditional system is known for shortcomings such as rework, ineffective sharing of information, lack of proper co-ordination, lack of interoperability and collaboration, as well as adversarial relationship among participants in the project-delivery process, giving rise to the poor performance of projects (Abbasnejad et al., 2021a: 413; Dim et al., 2015: 1; Idoro & Patunola-Ajayi, 2009: 28). Several attempts have been made in terms of initiatives, innovations, and tools such as new contractual arrangements, integrated projected delivery, modelling, and technological innovations, to achieve better performance of construction projects (Isikdag & Underwood, 2010: 550; Olatunji, Sher & Gu, 2010: 68). BIM is one of such processes leading healthy disruptions in construction project delivery across the globe, ensuring collaboration among construction participants, bringing about the expected changes, and leading to successful project delivery (Abbasnejad et al., 2021a: 413; Eadie et al., 2013: 348). BIM is moving the construction industry from the current fragmented and paper-based processes to an integrated workflow, where tasks are condensed into a collaborative and more coordinated process using computation capabilities, internet communication, and data processing into information (Eastman et al., 2011; Saka, Chan & Siu, 2020: 1). This is done to manage the built environment within a realistic and verifiable decision by manipulating reality-based models (Abdullahi et al., 2011). Hence, the implementation of BIM by public sector clients becomes imperative, owing to its ability to substantially reduce the problems associated with public project delivery.
In spite of success reports on BIM and its potential to confront challenges of the public sector, Olugboyega and Aina (2016: 22) conclude that, in Nigeria, governments at all levels are not requesting BIM to be used in their projects. This could be partly due to lack of organisational capabilities by the public sector client for its implementation (Babatunde, 2015). This is unexpected because BIM has adequate potential to reduce disputes, address time and cost overrun, improve efficiency, and handle corruption (Alufohai, 2012; Saka et al., 2020: 2). Saleh and Alshawi (2005: 58) suggest that, in order to make effective decisions towards attaining the required capabilities, organisations need to evaluate their current capabilities before implementing ICT systems.
In this study, assessment of the organisational capability attributes of the public sector for BIM implementation is, therefore, justified for a number of reasons. The necessity of BIM usage by all stakeholders in the construction industry to curb the problems inherent in the traditional method of project delivery is well established in literature. The public sector as the major stakeholder is expected to set the pace for other participants in the industry. The public sector is the major client of complex projects in Nigeria. Hence, there is n doubt as to the financial ability of the public sector to implement BIM. Moreover, BIM has been used by public sectors in countries such as the United Kingdom, the United States of America, and so on, and its benefits have been well established (Van Wyk, KajimoShakantu & Opawole, 2021). This study has, therefore, become imperative to understand the preparedness of the public sector organisation for the implementation of BIM in the Nigerian construction industry.
2. LITERATURE REVIEW
2.1 Building Information Modelling
BIM has several definitions, due to its ever-changing nature (Aranda-Mena et al., 2009: 426). One of these is that BIM is a product, a technology, a strategy, or an innovation. Regardless of its definition, the significant objective of BIM is to provide a complete replication of a structure in a computerised climate, with the sole objective of giving a community stage to overseeing building data all through its life cycle (Aouad et al., 2014; Ibrahim, Hashim & Jamal, 2019: 2). This definition tends to the shortcomings of the past CAD advances. Hassan and Yolles (2009: 53) state that BIM is seven-dimensional. A BIM model begins with a parametrically advanced 3D that has both mathematical and non-mathematical data. The 3D model is a highly rich three-dimensional model (X, Y and Z) made up of intelligent/ smart parametric objects extending to scheduling and sequencing (4D), cost estimating (5D), sustainable design, also termed green design (6D), and facility management (7D). However, as more data is added to the parametric articles in a 3D BIM model, the model becomes more extravagant and more vigorous, highlighting other dimensions (nD). Specialists arrange BIM as 3D, 4D, 5D, 6D, 7D and nD (Aouad, Wu & Lee 2006: 152).
2.2 BIM implementation stages
BIM stages are the multiple stages that demarcate capability milestones. BIM functionality, according to Succar (2010: 6), is the ability to perform a mission, produce a service, or create a product. BIM capability stages (or BIM stages) are described as the major milestones that teams and organisations must achieve as they implement BIM. BIM stages define a fixed starting point (the state prior to BIM implementation), three fixed BIM stages, and a variable ending point that allows for unanticipated future technological advances. Pre-BIM refers to the state of the industry prior to BIM implementation, while integrated project delivery (IPD) refers to a method or end objective for implementing BIM (Succar, 2010: 7). Technology, process, and policy components are all part of the BIM stages (Succar, 2010: 9; Koseoglu, Keskin & Ozorhon, 2019). Pre-BIM, BIM stage 1 (object-based modelling), BIM stage 2 (model-based collaboration), BIM stage 3 (network-based integration), and IPD are the stages to go through (Succar, 2014: 8).
The minimum requirements for BIM stages are specified. For instance, an organisation must have deployed an object-based modelling software tool to be considered at BIM capability stage 1 (Figure 1). An organisation must also be part of a multidisciplinary model-based collaborative project for BIM capability stage 2. An entity should utilise an organisation-based arrangement such as a model worker to share object-based models with any two different orders to be at BIM stage 3 (Succar, 2010: 7; Koseoglu et al., 2019). The pre-BIM status addresses incoherent venture conveyance, where antagonistic connections describe the development business. Much reliance is put on 2D documentation to portray a 3D reality. In addition, the focus is not on community-oriented practices between partners, and work process is straight and non-concurrent (Succar 2009: 11; Saka et al., 2020: 3). Under pre-BIM conditions, industry experiences low interest in innovation and absence of interoperability (Succar, 2010: 8).
The volume and intricacy of changes needed to accomplish every one of the three BIM stages are groundbreaking and surprisingly revolutionary (Henderson & Clark, 1990: 22; Taylor & Levitt, 2005; Ibrahim et al., 2019: 3). Notwithstanding, steady or transformative advances populate the entry from pre-BIM to BIM Stage 1, through every one of the three phases and towards IPD. Recognising these BIM Steps (Figure 1) is instrumental in empowering organisations and people to build their BIM capability and maturity in a methodical way (Succar, 2009: 12; Koseoglu et al., 2019).
Figure 1: Steps leading to/separating BIM stages Source: Succar, 2009: 12
2.3 Organisational capability attributes required for BIM implementation
Succar (2010: 10) and Dakhil, Underwood and Alshawi (2019: 83) refer to these attributes as BIM competency set, which represents the ability of a BIM player to achieve a BIM requirement. The potential of the BIM concept and its capacity to integrate different participants in the sector will be dependent on the adoption of standardised processes alongside the acquisition of technological equipment able to handle the necessary software, in addition to training and education needed to handle and analyse the information provided correctly. Consequently, this gives rise to the BIM paradigm defined by the triad of policies, processes and technology (Kori & Kiviniemi, 2015; Yusuf, 2014: 22; Succar, 2009: 11). Koseoglu et al. (2019), Haron (2013: 49) and Olatunji, Sher and Gu (2010: 68) identified people, process, and technology as the three vital areas of BIM investment for it to be successfully implemented. However, Zahrizan et al. (2013: 391) opine that people, technology, and policy are three paramount factors in BIM implementation. Similarly, Bew and Underwood (2010) consider them to be the main variables that must be put in place for BIM to be delivered. Although people and process are vital to change and improvement, technology is the enabler that sustains both elements.
In the implementation of e-commerce, for example, Ruikar, Anumba and Carrillo (2006: 105) introduced a management element to justify the role of management in coordinating and managing the implementation. Hence, to implement new technologies successfully, management's awareness, vision, and mission to implement new technologies are needed, in order to plan and drive policies (Abbasnejad et al., 2021b: 989). This was supported by Smith and Tardif (2009) and Eastman et al. (2011). As Abbasnejad et al. (2021b: 976) and Smith and Tardif (2009) further explain, the ability to motivate people, leadership, and management buy-in are critical factors to be considered, in order to implement BIM within an organisation. In addition, to implement BIM, Haron (2013: 43) and Saka et al. (2020: 17) note the need for software evaluation strategy, use of design and build type of project delivery and compatibility, as well as interoperability of BIM software. Hence, some researchers identify technology, process, and policy as the key factors in BIM implementation. Others highlight technology, process, and people, while some include management. After thorough examination, it was found that these classifications are essentially the same, depending on the context and content of each category. Hence, the classification of technology, process, and policy will be adopted as it basically encapsulates the factors of management and people in BIM implementation.
Succar (2010: 15) and Saka et al. (2020: 17) posit that for BIM stage 2, which involves model-based collaboration, database-sharing skills, and collaborative processes are essential to achieve it. Davenport (1993: 11, cited in Bew & Underwood [2010]) define process as an organised and measured array of activities aimed at producing specified outputs. In relation to BIM, Yusuf (2014: 24) explains that processes are the means whereby BIM uses are achieved, and process redesign is vital for BIM implementation. In this regard, in an attempt to implement BIM, a clear definition with a consideration of the entire life cycle and monitoring of BIM processes that the organisation will need to deliver its projects are extremely vital. The difference between failure and success of a BIM implementation plan can be having the right process (Abbasnejad et al., 2021b: 990). In addition, there will be a need to alter the conventional workflow practice, in order to provide coordination between BIM and CAD process flow (Succar, 2010: 6). Therefore, the initial compulsory attempt to achieve BIM compliance will be to clearly state the due processes as the yardstick for all activities of the model (Yusuf, 2014: 24).
Innovations are important in achieving accuracy, gaining a competitive edge, and attaining greater outcomes and outputs (Bew & Underwood, 2010). Usage of the right technology will be required to aid the already developed BIM processes, as it is a significant part of BIM implementation. BIM requires reasonable innovations to be carried out successfully and ought to be assessed by firms to comprehend the advantages and boundaries of each (Yusuf, 2014: 24; Saka et al., 2020: 17). An adequate plan to adopt international guidelines must be in place, in order to manage change effectively when a beneficial technology is identified. The BIM modeller needs to specify, define, and manage suitable hardware, version and structure, certified software (BIM authoring tools), interoperable data formats, storage processes, user workstation, and good internet connections, among others. It is important to match organisational capabilities with the required technology and BIM authoring tools (Yusuf, 2014: 25). According to Succar (2010: 6) and Adam et al. (2022: 825), the availability of BIM tools assists in the change from drafting-based to objectbased workflow. BIM implementation requires adequate infrastructure, skilled and trained workers, sufficient awareness of BIM technology, and knowledge of BIM tools (Abubakar et al.,2013; Onungwa et al., 2017: 26;
Elhendawi et al., 2019: 10). Ruya, Chitumu and Kaduma (2018: 4) and Abbasnejad et al. (2021b: 976) opine that, in order to implement BIM, there should be awareness among stakeholders, standards to guide implementation, investment in education, BIM technology, information technology, adequate power supply, training programmes, and government intervention. Arayici et al. (2009) and Dakhil et al. (2019: 91) opine that the following are essential for BIM implementation: continuous staff training on the new process; continuous BIM education; new workflow/work process; new software and technology; new process and workflow implementation; new process establishment; adequate work environment, and the ability to mitigate risks.
People are the key asset of the construction industry. Therefore, the public sector must employ enough diligent people, retain them, and develop their skills and capacities to meet the ever-increasing demand of the industry (HM Government, 2013; Elhendawi et al., 2019: 10). To successfully implement BIM, the public sector must engage the right workforce with the necessary skills and develop a collaborative work culture (Gu & London, 2010: 992; Adam et al., 2022: 826). For this reason, new roles such as BIM modeller and BIM administrator have emerged to provide coordination so as to ensure team integration and collaboration efforts in BIM implementation (Gu & London, 2010: 990, Dakhil et al., 2019: 90; Adam et al., 2022: 829). The core objective of the BIM administrator is to guide the team in implementing BIM. The BIM administrator must work to ensure that the people, process, and technology work harmoniously (Yusuf, 2014: 37). According to Succar (2010: 12), alliance-based and risk-sharing contractual arrangements are essential to network-based integration (BIM Stage 3). Laakso and Kiviniemi (2012: 145) and Elhendawi et al. (2019: 10) suggest that BIM implementation requires contract amendment, process change, standardised process, technology adoption, and formal training to develop skill and knowledge. Table 1 summarises these organisational capability attributes.
Table 1: Organisational capability attributes required for BIM implementation
| S/No. | Organisational capability attributes required for BIM implementation |
|---|---|
| 1 | Adequate power supply |
| 2 | Process redesign |
| 3 | Collaborative team culture |
| 4 | Management awareness |
| 5 | The ability to motivate people |
| 6 | Effective risk-management skill |
| S/No. | Organisational capability attributes required for BIM implementation | Author(s) |
|---|---|---|
| 8 | Collaborative process | Succar (2010); Abbasnejad et al. (2021a) |
| 9 | Management’s vision and missions for BIM implementation | Ruikar et al. (2006); Smith and Tardif (2009); Abbasnejad et al. (2021b) |
| 10 | Plan to adopt international guidelines | Yusuf (2014); Abbasnejad et al. (2021b) |
| 11 | Coordination between BIM and CAD process flow | Succar (2010); Yusuf (2014) |
| 12 | The use of design and build type of project delivery | Haron (2013) |
| 13 | Contract amendment | Laakso and Kiviniemi (2012); Elhendawi et al. (2019) |
| 14 | Defined responsibilities for the BIM administrator | Gu and London (2010); Dakhil et al. (2019) |
| 15 | Defined responsibilities for the BIM modeller | Gu and London (2010) |
| 16 | Formal training to develop skill and knowledge | HM Government (2013); Laakso and Kiviniemi (2012); Abbasnejad et al. (2021b) |
| 17 | Continuous BIM education and awareness | Arayici et al. (2009); Abubakar et al. (2013); Abbasnejad et al. (2021a) |
| 18 | Continuous on-the-job training | Arayici et al. (2009); Elhendawi et al. (2019) |
| 19 | Sufficient number of workers | HM Government (2013) |
| 20 | Adequate work environment for workers | Arayici et al. (2009); Dakhil et al. (2019) |
| 21 | Change from traditional work process | Yusuf (2014); Dakhil et al. (2019) |
| 22 | Adequate ICT infrastructure | Yusuf (2014); Olatunji et al. (2010) |
| 23 | Adequate technical support for BIM implementation | Succar (2010); Yusuf (2014) |
| 24 | Software evaluation strategy | Haron (2013); Dakhil et al. (2019) |
| 25 | Compatibility and interoperability of BIM software | Haron (2013); Saka et al. (2020) |
| 26 | Standardised process | Kori and Kiviniemi (2015) |
3. RESEARCH METHODOLOGY
3.1 Research design
The study evaluates the organisational capability attributes of the public sector for BIM implementation on construction projects in Nigeria. The methodology adopted in this study is quantitative descriptive analysis based on primary data collected through self-administered questionnaires. Singh (2006: 7) explains that research design is basically a statement of the objective of inquiry, strategies for collection of evidence, analysis of evidence, and recording of findings. The study employs a quantitative approach in collecting and analysing suitable data. In the questionnaire, the 27 organisational capability attributes identified through the literature review are presented to the respondents for evaluation with respect to their levels of availability and levels of adequacy.
3.2 Population, sample, and response rate
The target population for this study consists of 1,634 construction professionals in Lagos State Public Service, obtained from the disposition list of Lagos State Public Service. Lagos is located in the Southwestern part of Nigeria. Being a former federal capital and now the commercial nerve centre of the country, Lagos hosts many of the reputable construction companies operating in Nigeria. Lagos is listed as one of the 25 megacities of the world with an estimated population of roughly 17 million in 2007 and a growth rate of 3.2%, which has an attendant pressure on its infrastructure. The numerous construction projects in Lagos are executed by both the private and the public sectors to meet the housing as well as the economic and infrastructure requirements of the emerging megacity (Ameh & Osegbo, 2011: 60). The sampling frame comprises one hundred and fiftyfour (154) architects, eighty-five (85) quantity surveyors, two hundred and five (205) builders, five hundred and eighty-six (586) civil engineers, two hundred and eighty-three (283) electrical engineers, and three hundred and twenty-one (321) mechanical engineers in Lagos State Public Service. A 20% sample was selected from each category of the professionals. This makes a total of 327 respondents. Each respondent was chosen entirely by chance, not biased in a systematic manner. Each member of the population had the same chance of being included in the sample (Singleton et al., 1988; Kothari & Gary, 2004). For this reason, randomisation is employed to achieve an unbiased sample. Hence, the portions selected from each professional classification represent the entire population (Pilot & Hungler 1999: 25).
A total of 327 copies of the structured questionnaire were administered. Research instruments are fact-finding strategies and tools used for datacollection (Gajewska & Ropel, 2011: 11). One hundred and ninety-eight (198) copies, which represent a response rate of 60.55%, were the valid copies returned and used for the analysis. The total retrieved questionnaires made the breakdown of the study sample to be 17 quantity surveyors, 23 architects, 77 civil engineers, 32 builders, 30 electrical engineers, and 19 mechanical engineers. The response rate of 60.55% is adjudged adequate for a questionnaire survey by Moser and Kalton (1971: 35), who recommend not lower than 30-40%.
Table 2: Sample size for the study
| Respondents | Sampling frame |
|---|---|
| Architects | 154 |
| Quantity surveyor | 85 |
| Builders | 205 |
| Civil engineers | 586 |
| Electrical engineers | 283 |
| Mechanical engineers | 321 |
| Total | 1634 |
Source: Disposition List of Lagos State Public Service, 2019
3.3 Data collection
Data were collected using self-administered well-structured questionnaires where specific information was listed for the respondents to complete (Bell & Bryman, 2007: 15). A structured questionnaire has been considered an effective data-collection method when measuring respondents' beliefs, attitudes, and opinions (Van Laerhoven, Van der Zaag-Loonen & Derkx, 2004: 833). The survey questionnaire was designed as a closedended type. According to Kothari (2004), closed-ended questionnaires can be easily completed and are relatively quick to analyse. The use of a questionnaire enabled freedom of opinion of individual respondents without fear of stigmatisation, since it ensures anonymity, confidentiality of responses, and protects the identity of respondents (Godfred, 1996, cited in Gajewska & Ropel, 2011: 11). The questionnaire was developed based on the constructs of the literature review and was administered between July and August 2021. The respondents were key professionals that are central to the execution of construction projects and BIM implementation within the public sector.
The questionnaire is divided into three parts. Part one, on the respondents' profiles, obtains information about their academic and professional qualifications, occupation, organisation type, and years of work experience. Part two, on the construct 'availability', is a set of 27 Likert-scale measurement items. Respondents were required to indicate the level of availability of organisational capability attributes from the scale measurements, in order to examine their level of availability for BIM implementation in the public sector (see Table 4). Part three, on the construct 'adequacy', is a set of 27 Likert-scale measurement items. Respondents were required to indicate the level of adequacy of organisational capability attributes from the scale measurements, in order to examine their level of adequacy for BIM implementation in the public sector (see Table 5). Respondents were informed about the purpose of this study and their freedom to be anonymous.
3.4 Method of analysis and interpretation of the findings
Both descriptive and inferential statistics are used for the analysis. These were achieved using the Statistical Package for Social Sciences (SPSS) version 20 (Pallant, 2013: 134). The respondents' background information was analysed, using descriptive statistics, while the specific concepts were analysed, using frequency distribution, percentage, mean, and the Kruskal-Wallis test. Descriptive statistics are considered effective tools in understanding the underlying details of a data set and putting them in a meaningful perspective (Castillo et al., 2010: 168). The 27 organisational capability attributes identified for BIM implementation were rated on a fivepoint Likert scale. According to Leedy and Ormrod (2015: 185), Likert-type or frequency scales use fixed choice response formats and are designed to measure opinions. For levels of availability, 1 = Never available; 2 = Rarely available; 3 = Sometimes available; 4 = Often available, and 5 = Always available. For level of adequacy, 1 = Very inadequate; 2 = Not adequate; 3 = Averagely adequate; 4 = Adequate, and 5 = Highly adequate. The 5-point scales in each case were converted in the analysis such that 1 = 10%, 2 = 40%, 3 = 60%, 4 = 80% and 5 = 100%. The Kruskal-Wallis test was used to test whether there is any significant difference in the ranking of the attributes by the different categories of respondents (architects, quantity surveyors, civil engineers, electrical engineers, mechanical engineers, and builders) at a 5% significance level. The normality test indicated that the data used in this study significantly deviated from a normal distribution as Shapiro-Wilk Test (SPW) values in all cases were < 0.05. Hence, the Kruskal-Wallis test is considered appropriate for testing the differences in the opinions expressed by the group of respondents.
3.5 Limitations
The study was conducted in Lagos State, the commercial nerve centre and the most populous city in Nigeria. The study focuses on BIM implementation on building construction projects by the public sector. The findings mainly reflect the organisational capability attributes of the public sector for BIM implementation in the study environment and may not be generalised, because it could only be applied to the public sector in states or regions with a similar economic, political, and social context.
4. FINDINGS
4.1 Profile of the respondents
The profiles of the respondents analysed include organisation, profession, years of working experience, highest academic qualifications, and professional qualifications of the respondents. Other variables analysed were the number of projects in which the respondents were involved, where BIM was used, and the number of projects involved in general since employment. The results of the analysis in Table 3 show that half of the participants (49.5%) worked for the Ministry of Housing (22.7%) and the Ministry of Works and Infrastructure (26.8%). Overall, half of the respondents (65.1%) had either a Bachelor of Science/Bachelor of Technology, B.Sc/B.Tech) (32.8%), or a M.Sc. degree (32.8%), and 64.2% had over 10 years' work experience in their organisation. Except for civil engineers (38.9%), respondents were almost equally distributed in their occupations, with quantity surveyors (8.6%), architects (9.6%), mechanical engineers (9.6%), electrical engineers (11.6%), and builders (15.2%). This implies that most of the respondents have adequate tertiary qualifications and experience in the public service system of operation to provide information that could help in making useful deductions on organisational capability attributes of the public sector for BIM implementation.
The respondents had different professional affiliations, indicating their competence to practise in their various areas of disciplines. This was supported by their membership in their respective discipline regulatory institutions. Over half of the respondents were affiliated with The Nigerian Society of Engineers (62.1%), and the remainder of them were almost equally affiliated with the Nigerian Institute of Quantity Surveyors (NIQS) (8.6%), the Nigerian Institute of Building (NIOB) (16.2%), and the Nigerian Institute of Architects (NIA) (12.1%).
The vast majority of the respondents (78.8%) were involved in over 11 public sector projects, in general, but the vast majority of them (88.9%) had not been involved in projects where BIM was used. This reveals the paucity of BIM usage in the public sector. In general, the background information of the respondents gives credence to the validity of information gathered.
Table 3: Background information of the respondents
| Organisation | Ministry of Works and Infrastructure | 53 | 26.8 |
|---|---|---|---|
| | Ministry of Housing | 45 | 22.7 |
| | Ministry of Transportation | 32 | 16.2 |
| | Ministry of Environmental and Physical Planning | 27 | 13.6 |
| | Ministry of Waterfront Infrastructure | 25 | 12.6 |
| | Ministry of Education | 16 | 8.1 |
| Profession | Civil engineer | 77 |
|---|---|---|
| | Builder | 32 |
| | Electrical engineer | 30 |
| | Architect | 23 |
| | Mechanical engineer | 19 |
| | Quantity surveyor | 17 |
| Education | Higher National Diploma (HND) | 50 |
| | Postgraduate Diploma (PGD) | 19 |
| | Bachelor of Science/Bachelor of Technology (B.Sc./B.Tech) | 65 |
| | M.Sc. | 64 |
| Professional registration | NIQS | 17 |
| | NIOB | 32 |
| | NIA | 24 |
| | NSE | 123 |
| | Other | 2 |
| Experience (years) | 1-5 | 18 |
| | 6-10 | 53 |
| | 11-15 | 57 |
| | 16-20 | 42 |
| | 21-25 | 17 |
| | Over 25 | 11 |
| Number of BIM projects since employment | 0 | 176 |
| | 1-5 | 14 |
| | 5-10 | 4 |
| | 11-15 | 1 |
| | 16-20 | 3 |
| Number of general projects since employment | 1-5 | 16 |
| | 6-10 | 26 |
| | 11-15 | 45 |
| | 16-20 | 40 |
| | Over 20 | 71 |
4.2 Availability of organisational capability attributes of the public sector for BIM implementation
Data were collected to assess the organisational capability attributes of the public sector for BIM implementation in building projects. In order to achieve this sub-objective, the organisational capability attributes of the public sector were examined based on levels of availability. The result is presented in Table 4. Adequate power supply was the organisational capability attribute with the highest rating in terms of level of availability (LAv = 76.00%). This is followed by speedy internet connection (LAv = 70.20%), change from traditional workflow (LAv = 69.80%), adequate work environment for workers (LAv = 69.60%), standardised process (LAv = 66.00%), sufficient number of workers (LAv = 65.60%), data-sharing skills (LAv = 65.00%), and continuous on the job training (LAv = 64.80%). The low rated organisational capability attributes with respect to availability were clearly defined roles for the BIM modeller (LAv = 41.40%), clearly defined roles for the BIM administrator (LAv = 41.80%), compatibility and interoperability of BIM (LAv = 42.20%), the use of design and build type of project delivery (LAv = 42.8%), and coordination between BIM and CAD process flow (LAv = 44.60%). These were followed by attributes such as software evaluation strategy (LAv = 45.00%), contract amendment (LAv = 49.20%), management's vision and missions for BIM implementation (LAv = 49.20%), and documented plan to adopt international guidelines and standards (LAv = 49.40%).
The high rating of adequate power supply (LAv = 76.00%) and of speedy internet connection (LAv = 70.20%) is presumably the result of alternative sources of power supply being used by the public sector in Lagos State. These alternative sources of power supply could include generator, solar energy, and inverter, among others. Most of the public offices depend on generators and are still paper based (Abubakar et al., 2014; Sawhney, 2014; Abbasnejad et al., 2021b: 974). The dependence on generator for power supply increases the running cost of offices and affects the judicious use of the limited available resources. The current paper-based and traditional system of operation within public offices is prone to errors and omissions, and also wastes time and money. This is in consonance with Ayodele and Alabi (2011: 143) and Saka et al. (2020: 2) who opined that the current system often leads to cost overruns, delays, and conflicts among the project team which are not favourable for BIM implementation.
The high rating of sufficient number of workers (LAv = 65.60%) and adequate work environment for workers (LAv = 69.60%) may result from the fact that the public sector remains the major employer of labour in Nigeria. The large workforce in the public sector has not translated to effectiveness and efficiency because they remain incapable of managing their projects and their private sector counterpart with slim workforce performs better in project delivery (Fitsilis & Chalatsis, 2014: 131; Olufemi et al., 2020: 846). Olufemi, Afegbua & Etim (2020: 849) and Babatunde (2015) earlier revealed that the private sector performs better in their project execution and their capability for PPP projects is higher than the public sector, despite being the major stakeholder in the Nigerian construction industry. The high ranking of adequate work environment for workers is expected since Lagos is the commercial nerve centre of Nigeria and an emerging megacity. Therefore, several projects are being executed to meet the need of the emerging megacity (Ameh & Osegbo, 2011: 60). In addition, the current global pandemic occasioned by COVID-19 has forced several organisations, including the public sector, to make certain capability attributes available, in order to align with the new normal in the discharge of their operation.
The low rating of several core capability attributes such as clearly defined roles for the BIM modeller (LAv = 41.40%); clearly defined roles for the BIM administrator (LAv = 41.80%); software evaluation strategy (LAv = 45.00%), and coordination between BIM and CAD process flow (LAv = 44.60%), among others, shows that the public sector lacks the necessary personnel to develop these capability attributes. The reason for this is that the sufficient number of workers is ranked high, but the necessary expertise required for BIM implementation is ranked low. This indicates that the public sector lacks the necessary expertise and know-how required for BIM implementation, although they have a sufficient number of workers. This agrees with previous research by Opawole et al. (2019), Tembo and Rwelamila (2008: 8), and Awwad (2013) which identified the public sector as having an over-reliance on outsourced consultants in managing projects and merely obtaining the reports of the construction process. It is also a reflection of the apathy of the public sector toward BIM and other related templates and software usage. It further underscores the fact that the public sector has no clear policy on the usage of computer software and other technological developments in its operations (HammaAdama & Kouider, 2018: 1118; Ihemeje & Afegbua, 2020: 60). This is not surprising because the usage of BIM technologies in Nigeria appears to be limited to 3D visualisation and the knowledge of BIM is low (Onungwa et al., 2017: 27). The low rating of capability attributes such as the use of design and build type of project delivery (LAv = 42.80%), contract amendment (LAv = 49.20%), and documented plan to adapt international guidelines (LAv = 49.40%) portrays that the public sector in Nigeria is still entrenched in the traditional method of project delivery. Many professionals within Nigeria's public sector are not conversant with new development in the global construction landscape (Onungwa et al., 2017: 27; Ihemeje & Afegbua, 2020: 60).
These results reveal the absence of several basic organisational attributes for BIM implementation in the study area. Roughly 50% of these organisational attributes were rated below 60.00%. This agrees with Onungwa et al. (2017: 27) and Abubakar et al. (2014) who opine that public offices lack capability attributes to implement BIM. This confirm the absence of the required facilities for BIM implementation in the study area. Hence, to implement BIM, these organisational capability attributes must be made available and effectively deployed in public sector organisations.
| CEG | R | 1 | 4 | 2 | 3 | 6 | 5 | 7 | 9 | 9 | 8 | 11 | 13 | 12 | 15 | 14 | 17 | 16 | 18 |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| | LAv (%) | 74.60 | 69.60 | 71.00 | 70.20 | 66.40 | 66.80 | 65.20 | 64.40 | 64.40 | 65.00 | 63.80 | 62.80 | 63.20 | 60.80 | 62.40 | 57.40 | 59.40 | 56.60 |
| MEG | R | 1 | 2 | 4 | 7 | 4 | 7 | 3 | 9 | 13 | 9 | 18 | 9 | 15 | 9 | 17 | 4 | 13 | 15 |
| | LAv (%) | 83.20 | 75.80 | 64.20 | 63.20 | 64.20 | 63.20 | 73.60 | 61.00 | 60.00 | 61.00 | 54.80 | 61.00 | 59.00 | 61.00 | 57.80 | 64.20 | 60.00 | 59.00 |
| ARC | R | 1 | 2 | 4 | 2 | 6 | 8 | 7 | 5 | 14 | 10 | 10 | 9 | 15 | 13 | 17 | 10 | 15 | 17 |
| | LAv (%) | 74.80 | 71.40 | 69.60 | 71.40 | 66.00 | 62.60 | 63.40 | 67.80 | 57.40 | 60.80 | 60.80 | 61.80 | 56.60 | 60.00 | 55.60 | 60.80 | 56.60 | 55.60 |
| EEG | R | 1 | 4 | 2 | 2 | 7 | 6 | 5 | 9 | 13 | 10 | 17 | 10 | 8 | 10 | 16 | 13 | 13 | 18 |
| | LAv (%) | 78.60 | 67.40 | 69.40 | 69.40 | 62.60 | 63.40 | 64.00 | 62.00 | 59.40 | 60.00 | 57.40 | 60.00 | 60.60 | 60.00 | 58.00 | 59.40 | 59.40 | 56.00 |
| BLDR | R | 1 | 2 | 3 | 4 | 5 | 7 | 10 | 5 | 8 | 15 | 9 | 14 | 12 | 10 | 13 | 16 | 16 | 18 |
| | LAv (%) | 74.40 | 71.20 | 70.60 | 70.00 | 68.80 | 66.80 | 62.60 | 68.80 | 66.20 | 59.40 | 64.40 | 60.00 | 61.80 | 62.60 | 60.60 | 58.80 | 57.60 | 53.80 |
| QS | R | 1 | 5 | 3 | 2 | 6 | 4 | 9 | 8 | 12 | 9 | 6 | 14 | 12 | 14 | 18 | 14 | 14 | 20 |
| | LAv (%) | 74.20 | 67.00 | 70.60 | 71.80 | 65.80 | 69.40 | 63.60 | 64.80 | 61.20 | 63.60 | 65.80 | 60.00 | 61.20 | 60.00 | 58.80 | 60.00 | 60.00 | 57.60 |
| OVERALL | R | 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 | 17 | 18 |
| | SD | 0.780 | 0.911 | 0.696 | 0.703 | 0.847 | 0.794 | 0.916 | 0.856 | 0.910 | 0.935 | 0.905 | 0.898 | 0.899 | 0.966 | 0.942 | 0.883 | 0.993 | 0.967 |
| | LAv (%) | 76.00 | 70.20 | 69.80 | 69.60 | 66.00 | 65.60 | 65.00 | 64.80 | 62.40 | 62.40 | 62.00 | 61.40 | 61.20 | 60.80 | 59.80 | 59.20 | 58.80 | 56.20 |
| Organisational capability attributes | | Adequate power supply | Speedy internet connection | Change from traditional work process | Adequate work environment for workers | Standardised process | Suf i fcient number of workers | Data-sharing skills | Continuous on-the-job training | Collaborative process | Adequate ICT infrastructure | Formal training to develop skill and knowledge | Ability to motivate people | Collaborative team culture | Continuous BIM education and awareness | Effective management skill | Management awareness of BIM | Adequate technical support for BIM implementation | Process redesign |
| CEG | R | 21 | 20 | 19 | 22 | 23 | 23 | 26 | 25 | 27 |
|---|---|---|---|---|---|---|---|---|---|---|
| | LAv (%) | 48.80 | 51.20 | 51.40 | 45.40 | 44.20 | 44.20 | 42.00 | 42.40 | 40.60 |
| MEG | R | 20 | 21 | 19 | 21 | 21 | 25 | 24 | 36 | 27 |
| | LAv (%) | 44.20 | 39.00 | 45.20 | 39.00 | 39.00 | 33.60 | 37.80 | 31.60 | 29.40 |
| ARC | R | 21 | 19 | 23 | 27 | 20 | 24 | 25 | 25 | 22 |
| | LAv (%) | 49.60 | 52.20 | 46.00 | 43.40 | 50.40 | 45.20 | 44.40 | 44.40 | 47.80 |
| EEG | R | 20 | 22 | 19 | 21 | 23 | 24 | 27 | 25 | 25 |
| | LAv (%) | 44.00 | 40.00 | 52.00 | 42.60 | 41.40 | 39.40 | 38.60 | 37.40 | 37.40 |
| BLDR | R | 18 | 20 | 21 | 21 | 25 | 27 | 23 | 23 | 26 |
| | LAv (%) | 53.80 | 50.00 | 45.60 | 45.60 | 43.80 | 39.40 | 42.60 | 42.60 | 41.20 |
| QS | R | 18 | 11 | 26 | 23 | 25 | 22 | 26 | 23 | 21 |
| | LAv (%) | 58.80 | 62.40 | 50.60 | 54.20 | 51.80 | 55.20 | 50.60 | 54.20 | 56.40 |
| OVERALL | R | 19 | 21 | 20 | 22 | 23 | 24 | 25 | 26 | 27 |
| | SD | 1.074 | 1.216 | 1.107 | 0.969 | 1.146 | 1.191 | 1.036 | 1.218 | 1.167 |
| | LAv (%) | 49.40 | 49.20 | 49.20 | 45.00 | 44.60 | 42.80 | 42.20 | 41.80 | 41.40 |
| Organisational capability attributes | | Plan to adopt international guidelines | Contract amendment | Management’s vision and missions for BIM | Software evaluation strategy | Coordination between BIM and CAD process l fow | The use of design and build type of project delivery | Compatibility and interoperability of BIM | Clearly de i fned roles for the BIM administrator | Clearly de i fned roles for the BIM modeller |
The study established that there is no statistically significant difference in the opinions of the group of respondents regarding the availability of the organisational capability attributes of the public sector for BIM implementation, except in two, namely contract amendment (LAv = 49.20%, p-value = 0.022) and clearly defined role for the BIM modeller (LAv = 41.40%, p-value = 0.008). The p-values of the attributes were ≤ 0.05 level of significance (Table 4). This implies that the construction professionals have different perceptions about the availability of these two organisational capability attributes (contract amendment and clearly defined role for the BIM modeller) in the study area. The respondents' consensus on the availability of most of the organisational capability attributes might be a reflection of bias to protect and portray their organisations in good light. In addition, the different level of engagement and interaction of the respondents with these organisational capability attributes, based on their various professional roles and responsibilities, might have influenced their opinions.
4.3 Adequacy of organisational capability attributes of the public sector for BIM implementation
Data were collected to assess the organisational capability attributes of the public sector for BIM implementation in building projects. In order to achieve this sub-objective, the organisational capability attributes of the public sector were examined, based on levels of adequacy. The result is presented in Table 5. Adequate power supply was the organisational capability attribute with the highest rating in terms of level of adequacy (LAq = 75.80%). This is followed by speedy internet connection (LAq = 69.80% ); change from traditional work flow (LAq = 64.60%); adequate work environment for workers (LAq = 64.40%); data-sharing skills (LAq = 63.60%); standardised process (LAq = 63.40%); collaborative team culture (LAq = 63.00%); the ability to motivate people (LAq = 62.60%); collaborative process (LAq = 62.20%), and effective risk-management skills (LAq = 62.00%), which ranked 2 nd , 3 rd , 4 th , 5 th , 6 th , 7 th , 8 th , 9 th and 10 th , respectively. The least rated capability attributes were the clearly defined roles for the BIM modeller (LAq = 38.20%); the clearly defined roles for the BIM administrator (LAq = 39.00%); the use of design and build type of project delivery to implement BIM (LAq = 40.40%); coordination between BIM and CAD process flow (LAq = 40.60%); compatibility and interoperability of BIM software (LAq = 42.40%); contract amendment (LAq = 43.40%); plan to adopt international standards (LAq = 43.60%), and software evaluation strategy (LAq = 43.60). These ranked 27 th , 26 th , 25 th , 24 th , 23 rd , 22 nd , 21 st , and 20 th , respectively.
The high rating of adequate power supply (LAq = 75.80%) could result from dependence on generator and other alternative sources of power supply. This agrees with Abubakar et al. (2014), Manu et al. (2019), as well as with Ihemeje and Afegbua (2020: 63), who noted that public offices in Nigeria depend more on generators for power supply. Although previous research (Afolabi et al. 2019; Onungwa et al., 2017: 26; Abubakar et al., 2014) noted that the use of ICT in public offices is low, speedy internet connection was rated high (LAq = 69.80%). This could have improved as a result of the current global pandemic (COVID-19), which has forced several organisations (public sector inclusive) to embrace the use of ICT in their operations. Most of the public offices operations are paperbased, with minimal usage of software, technology, and innovations that require high-speed internet connection to download and upload large files such as BIM (Sawhney, 2014; Zhao et al., 2016: 156; Afolabi et al., 2019). The high rating of collaborative team culture (LAq = 63.00%) and collaborative process (LAq = 62.20%) reflect the nature of the construction project execution, which entails interaction and cooperation with different professionals. This is especially the case in the public sector, where there can be diverse stakeholders on a particular project. Evidently, in such work environment, collaboration is very important for project execution and day-to-day operations. In addition, the current COVID-19 pandemic has forced several organisations, including the public sector, to improve on their capability attributes, in order to manage the disruptions in business operations and workflow.
The low rating of many core capability attributes, which are software related, such as clearly defined roles for the BIM modeller (LAq = 38.20%); clearly defined roles for the BIM administrator (LAq = 39.00%); the use of design and build type of project delivery to implement BIM (LAq = 40.4%); coordination between BIM and CAD process flow (LAq = 40.60%); compatibility and interoperability of BIM software (LAq = 42.4%); contract amendment (LAq = 43.40%), and software evaluation strategy (LAq = 43.60%) indicates that the public sector is lagging in the usage of software and modern techniques. The public sector still appears entrenched in the traditional practice, where lines and symbols on paper have been used to prepare working drawings, construction plans, bills of quantities, and engineering drawings. These results agree with previous research (Muhammed & Isah, 2012: 660; Kasimu & Usman, 2013: 126; Olorunkiya, 2017).
In Nigeria, where public projects dominate the construction sector (Alufohai, 2012; Hamma-Adama & Kouider, 2018: 1117), the implementation of modern methods and techniques is non-negotiable to enhance the performance of public projects. This is crucial to confront fragmentation and the uncoordinated way in which projects are being executed have been identified as the main causes of poor project performance. Unfortunately, compatibility and interoperability of BIM software, which is crucial for the public sector to implement BIM and eradicate the disjointed practices in project delivery, were rated very low in adequacy. Overall, the results show the poor state of organisational capability attributes of the public sector for BIM implementation. It is noteworthy that over 50% of these capability attributes have a level of adequacy below 60.00%. A good number of the capability attributes possessed by the public sector appear grossly inadequate although available. Hence, BIM may not be implemented soonest. This finding agrees with Afolabi et al. (2019), Iwarere and Lawal (2011: 23), Arnaboldi, Azzone and Savoldelli (2004: 218), and MOUCSF (2015), who identify the public sector as presently not capable of managing projects using modern methods. This is especially the situation in Nigeria, where there is no legislative roadmap for the use of technology, software, and innovative tools. This is unfortunate, despite the large-scale construction activities being undertaken by the public sector which is expected to take advantage of BIM, in order to enjoy its enormous advantage.
| CEG | R | 1 | 2 | 3 | 4 | 7 | 9 | 4 | 11 | 10 | 7 | 12 | 6 | 13 | 13 | 17 | 13 |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| | LAq (%) | 74.20 | 70.20 | 65.80 | 65.20 | 63.80 | 63.40 | 65.20 | 62.40 | 62.80 | 63.80 | 61.80 | 64.20 | 59.80 | 59.80 | 58.00 | 59.80 |
| MEG | R | 1 | 2 | 5 | 10 | 3 | 12 | 5 | 5 | 4 | 12 | 5 | 11 | 5 | 17 | 12 | 16 |
| | LAq (%) | 83.20 | 75.80 | 62.20 | 61.00 | 68.40 | 57.80 | 62.20 | 62.20 | 63.20 | 57.80 | 62.20 | 59.00 | 62.20 | 52.60 | 57.80 | 54.80 |
| ARC | R | 1 | 2 | 8 | 3 | 3 | 3 | 13 | 3 | 10 | 10 | 12 | 3 | 8 | 16 | 14 | 14 |
| | LAq (5) | 74.80 | 70.40 | 64.40 | 65.20 | 65.20 | 65.20 | 58.20 | 65.20 | 61.80 | 61.80 | 59.20 | 65.20 | 64.40 | 56.60 | 57.40 | 57.40 |
| EEG | R | 1 | 2 | 9 | 9 | 8 | 6 | 4 | 4 | 6 | 11 | 11 | 15 | 3 | 13 | 16 | 18 |
| | LAq (%) | 77.40 | 72.60 | 62.00 | 62.00 | 62.60 | 63.40 | 64.60 | 64.60 | 63.40 | 61.40 | 61.40 | 58.00 | 65.40 | 59.40 | 56.00 | 53.40 |
| BLDR | R | 1 | 4 | 2 | 2 | 12 | 5 | 10 | 6 | 8 | 6 | 9 | 12 | 15 | 10 | 15 | 12 |
| | LAq (%) | 77.60 | 65.00 | 65.60 | 65.60 | 59.40 | 63.20 | 60.00 | 61.80 | 61.20 | 61.80 | 60.60 | 59.40 | 57.60 | 60.00 | 57.60 | 59.40 |
| QS | R | 1 | 3 | 3 | 5 | 6 | 2 | 6 | 13 | 13 | 11 | 6 | 17 | 25 | 17 | 9 | 11 |
| | LAq (%) | 69.40 | 65.80 | 65.80 | 64.80 | 63.60 | 67.00 | 63.60 | 57.60 | 57.60 | 58.80 | 63.60 | 56.40 | 50.60 | 56.40 | 61.20 | 58.80 |
| OVERALL | R | 1 | 2 | 3 | 4 | 5 | 6 | 7 | 8 | 9 | 10 | 11 | 12 | 13 | 14 | 15 | 16 |
| | SD | 0.816 | 0.991 | 0.841 | 0.848 | 0.942 | 0.905 | 0.792 | 0.824 | 0.881 | 0.893 | 0.864 | 0.870 | 0.934 | 0.880 | 0.911 | 1.004 |
| | LAq (%) | 75.80 | 69.80 | 64.60 | 64.40 | 63.60 | 63.40 | 63.00 | 62.60 | 62.20 | 62.00 | 61.40 | 61.40 | 60.20 | 58.40 | 57.80 | 57.80 |
| Organisational capability attributes | | Adequate power supply | Speedy internet connection | Change from traditional work process | Adequate work environment for workers | Data-sharing skills | Standardised process | Collaborative team culture | The ability to motivate people | Collaborative process | Effective risk-management skills | Suf i fcient number of workers | Continuous on-the-job training | Management awareness of BIM | Continuous BIM education and training | Adequate ICT infrastructure to support BIM | Process redesign |
| CEG | R | 16 | 18 | 19 | 22 | 20 | 20 | 23 | 24 | 25 | 25 | 27 |
|---|---|---|---|---|---|---|---|---|---|---|---|---|
| | LAq (%) | 59.40 | 56.40 | 53.20 | 43.80 | 46.00 | 46.00 | 43.60 | 42.80 | 41.60 | 41.60 | 41.60 |
| MEG | R | 19 | 15 | 18 | 20 | 22 | 22 | 21 | 22 | 25 | 26 | 27 |
| | LAq (%) | 47.40 | 56.80 | 48.40 | 41.00 | 32.60 | 32.60 | 36.80 | 32.60 | 29.40 | 26.40 | 25.20 |
| ARC | R | 17 | 18 | 19 | 26 | 20 | 21 | 21 | 24 | 23 | 27 | 25 |
| | LAq (5) | 55.60 | 51.40 | 47.00 | 37.40 | 43.40 | 40.80 | 40.80 | 39.20 | 40.00 | 36.60 | 38.20 |
| EEG | R | 13 | 17 | 19 | 20 | 25 | 21 | 22 | 24 | 22 | 25 | 27 |
| | LAq (%) | 59.40 | 54.00 | 49.40 | 43.40 | 38.00 | 42.60 | 42.00 | 39.40 | 42.00 | 38.00 | 37.40 |
| BLDR | R | 15 | 18 | 19 | 20 | 21 | 23 | 22 | 24 | 24 | 26 | 27 |
| | LAq (%) | 57.60 | 56.80 | 48.80 | 43.20 | 42.60 | 40.00 | 40.60 | 35.60 | 35.60 | 35.00 | 36.20 |
| QS | R | 13 | 9 | 19 | 21 | 13 | 19 | 26 | 24 | 21 | 21 | 26 |
| | LAq (%) | 57.60 | 61.20 | 55.20 | 54.20 | 57.60 | 55.20 | 49.40 | 51.80 | 54.20 | 54.20 | 49.40 |
| OVERALL | R | 17 | 18 | 19 | 20 | 21 | 22 | 23 | 24 | 25 | 26 | 27 |
| | SD | 0.897 | 0.961 | 1.111 | 1.039 | 1.229 | 1.162 | 1.074 | 1.186 | 1.162 | 1.130 | 1.081 |
| | LAq (%) | 57.40 | 56.00 | 51.00 | 43.60 | 43.60 | 43.40 | 42.40 | 40.60 | 40.40 | 39.00 | 38.20 |
| Organisational capability attributes | | Formal training to develop skills and knowledge | Adequate technical support for BIM | Management’s vision and missions for BIM | Software evaluation strategy | Plan to adopt international guidelines | Contract amendment | Compatibility and interoperability of BIM | Coordination between BIM and CAD | The use of design and build contract | Clearly de i fned roles for the BIM administrator | Clearly de i fned roles for the BIM modeler |
It is noteworthy that capability attributes with a high level of availability (adequate power supply, speedy internet connection, change from traditional workflow, and adequate work environment for workers) also have a high level of adequacy. Similarly, attributes with a low level of availability (clearly defined roles for the BIM modeller, clearly defined roles for the BIM administrator, the use of design and build type of project delivery to implement BIM, compatibility and interoperability of BIM implementation, and coordination between BIM and CAD process flow) also have a low level of adequacy. This finding reveals the need for the public sector to improve on the critical attributes and make the same adequate, in order to implement BIM in the execution of building projects. These findings agree with Ihemeje and Afegbua (2020: 63), Olufemi et al. (2020: 846), Mayedwa and Van Belle (2016: 50), who posited that the public sector lacks adequate capability attributes to successfully execute its projects.
The study established that there is no statistically significant difference in the opinions expressed on the adequacy of the organisational capability attributes of the public sector for BIM implementation, except in four as observed by the respondents, namely plan to adopt international guidelines (LAq = 43.60%, p-value = 0.037); the use of design and build type of contract (LAq = 40.40%, p-value = 0.025); clearly defined role for the BIM administrator (LAq = 39.00%, p-value = 0.003), and clearly defined role for the BIM modeller (LAq = 38.20%, p-value = 0.019). The p-values of the attributes were ≤ 0.05 level of significance (Table 5). This implies that the construction professionals have a similar perception about the adequacy of these organisational capability attributes, except in four, namely plan to adopt international guidelines; the use of design and build type of contract; clearly defined role for the BIM administrator, and clearly defined role for the BIM modeller in the study area. The differences in the respondents' opinions on these four (4) organisational capability attributes are as expected, because all these capability attributes ranked low and are more or less peculiar to BIM implementation. It will be most unlikely for them to be adequate in an organisation that is not implementing BIM.
5. CONCLUSION
This study examined the organisational capability attributes of the public sector for the implementation of BIM and indicated the implications for enhancing the performance of public sector projects. Findings revealed that the capability attributes for BIM implementation with high rating are those that are not peculiar to BIM implementation, but are used for general and day-to-day operations in any typical organisation. Most of the attributes with low ratings are those that are specifically for BIM implementation. This suggests that the competence and capability of the public sector must be further developed, not only to capture capability attributes that are deployed in the general operational activities of the organisations, but also to include the specific requirements for BIM implementation. The findings of the study also showed that organisational capability attributes with high level of availability also had a high level of adequacy and those with low availability rating have a low adequacy rating. It can be further deduced from the results that roughly 50% of the organisational capability attributes have an availability rating below 60%, while over 50% of the organisational capability attributes have an adequacy rating below 60%. This shows that the organisational capability attributes of the public sector for BIM implementation are not yet satisfactorily developed. Hence, the public sector organisations in the study area need to aggressively pursue improvement measures to enhance the successful implementation of BIM on construction projects.
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Sustainable Forestry Initiative® Forest Management Audit Report
Missouri Department of Conservation
Certificate # SCS-SFI/FM-010232
SFI 2022 Standards and Rules®, Forest Management Surveillance Audit
SCS Contact:
Managing Director, Forestry
Maggie Schwartz
Natural Resources Division email@example.com
TABLE OF CONTENTS
Public Summary Report SFI® Forest Management Standard
SECTION A – PUBLIC SUMMARY
Foreword
Organization of the Report
This report of the results of your audit assessment is divided into two sections. Section A provides the public summary and background information that is required by the Sustainable Forestry Initiative® (SFI) Section A is made available to the public and is intended to provide an overview of the audit process, the management programs and policies applied to the forest, and the results of the audit. Section A will be posted on the SFI® website and Section B contains more detailed results and information for required SFI record-keeping or for use by the Certified Organization.
Principles of SFI Forest Management
The SFI 2022 Standards and Rules for Forest Management promotes sustainable forestry and includes measures to protect water quality, biodiversity, wildlife habitat, species at risk and Forests with Exceptional Conservation Value.
The 13 SFI Principles for Forest Management are:
1. Sustainable Forestry: To practice sustainable forestry to meet the needs of the present while promoting the ability of future generations to meet their own needs by practicing a land stewardship ethic that integrates reforestation and the managing, growing, nurturing and harvesting of trees for useful products or the provision of ecosystem services such as the conservation of soil, air and water quality and quantity, climate change adaptation and mitigation, biological diversity, wildlife and aquatic habitats, recreation and aesthetics.
2. Forest Productivity and Health: To provide for regeneration after harvest, maintain the health and productive capacity of the forest land base, and to protect and maintain long-term soil health and productivity. In addition, to protect forests from economically, environmentally or socially undesirable impacts of wildfire, pests, diseases, invasive species and other damaging agents and thus maintain and improve long-term forest health and productivity.
3. Protection of Water Resources: To protect and maintain the water quality and quantity of water bodies and riparian areas, and to conform with forestry best management practices to protect water quality, to meet the needs of both human communities and ecological systems.
4. Protection of Biological Diversity: To manage forests in ways that protect and promote biological diversity, including animal and plant species, wildlife habitats, ecologically and culturally important
species, threatened and endangered species (i.e., Forest with Exceptional Conservation Values) and native forest cover types at multiple scales.
5. Aesthetics and Recreation: To manage the visual impacts of forest operations, and to provide recreational opportunities for the public.
6. Protection of Special Sites: To manage lands that are geologically or culturally important in a manner that takes into account their unique qualities.
7. Legal Compliance: To comply with applicable federal, provincial, state, and local forestry and related environmental laws, statutes, and regulations.
8. Research: To support advances in sustainable forest management through research, science and technology.
9. Training and Education: To improve the practice of sustainable forestry through training and education programs.
10. Community Involvement and Social Responsibility: To broaden the practice of sustainable forestry on all lands through community involvement, socially responsible practices, and through recognition and respect of Indigenous Peoples' rights and traditional forest-related knowledge.
11. Transparency: To broaden the understanding of forest certification to the Forest Management Standard by documenting certification audits and making the findings publicly available.
12. Continual Improvement: To continually improve the practice of forest management, and to monitor, measure and report performance in achieving the commitment to sustainable forestry.
13. Responsible Fiber Sourcing in North America: To use and promote sustainable forestry across a diversity of ownership and management types in the United states and Canada that is both scientifically credible and socially, environmentally, and economically responsible and to avoid sourcing from controversial sources both domestically and internationally.
1. General Information
1.1 Name, Contact, and Certificate Information
| | Organization Name |
|---|---|
| | Certification |
| | Representative, Address, |
| | Phone Number |
| | Audit Dates |
| SFI Certificate Type | |
2. Summary Description of the Management Unit(s)
☒ SFI: List of all sites/FMUs under scope of the certificate, including certified acres.
The Missouri Department of Conservation (MDC) holds a centralized certification that covers eight geographic regions, with management headquarters located in Jefferson City, Missouri. The Sustainable Forestry Initiative (SFI) manager at MDC is in charge of a robust internal audit program.
As of July 1, 2020, the Conservation Department has reorganized to a new structure. The previous structure consisted of disciplinary divisions (e.g., Forestry, Fisheries, Wildlife, etc.). The new structure created Regional Units focusing on either state land or private land natural resources work. Each of the eight Regions now have a Regional Administrator who is responsible for all management on that region. A Statewide Resource Management Branch has oversight responsibility on all regional natural resource management. This branch includes Forestry, Wildlife and Fisheries disciplines.
The Missouri Conservation Commission, as established within the Missouri Constitution, is comprised of 4 citizen volunteers appointed by the Governor and confirmed by the Senate. The Conservation Commission is vested with control, management, restoration, conservation, and regulation of fish, forest, and wildlife resources of Missouri by the Missouri Constitution. The commission appoints the director of MDC and serves as MDC's policy makers, approving wildlife code regulations, strategic planning, budget development, and major expenditure decisions. They fulfill this responsibility through selection of a director who organizes and administers the Missouri Department of Conservation under Conservation Commission policy and oversight.
One of several administrative units within the Conservation Department is the Forestry Section led by the Missouri State Forester. The State Forester reports to the Deputy Director through the Statewide Resource Management Branch Chief. The Forestry Section has specific oversight of the George O. White State Forest Nursery, Fire Program, Rural Forest Fire Equipment Center, Forest Products
Description of Ownership
Total Forest Area (Acres)
Management Unit Maps
Forest Types and Key Ecological Features and Utilization, and Forest Systems. Each Region is under t h e d ir ect i o n of a Regional Administrator who is assigned varying number of staff depending on the Region's workload. Each Region is further divided into Districts.
(Source, Agency Overview and Background - Lands to be Certified)
| Sites | Sites Audited 2023 |
|---|---|
| Jefferson City | X |
| Northeast Region | |
| Southeast Region | |
| Ozark Region | X |
| St. Louis Region | |
| Central Region | X |
| Southwest Region | |
| Kansas City Region | |
| Northwest Region | |
☐ ATFS: List of all sites/FMUs under scope of the certificate, including certified acres.
For purposes of SFI certification, approximately 696,000 acres are considered within the scope of compliance with the SFI Forest Management Standard.
If a Group certificate provide a description of the group structure
Provide a link to any public maps.
Missouri Department of Conservation - Natural Areas Map (arcgis.com)
The Forest and Woodland Program includes:
* Landscape Design with Priority Lands
LANDSCAPE LEVEL
* Natural Community Restoration on Priority Lands
* Terrestrial Habitat for Public Use Management
* Conservation Area Planning Coordination
* Ecological Health
* Wetlands
AQUATIC
* Aquatic Habitat Management for Priority Species
* Sport Fish Management
* Habitat Management for Streams
* Other Harvestable Fish Species
* CAP Lakes
* Commercial Fishing
* Aquatic Species Production
* Grasslands
OPENLAND
* Ag Crop
* Forest and Woodland
FOREST
* Forest Health Management
* State Forest Nursery
* Fire Detection and Suppression
* Forest Products Industry
INVASIVE SPECIES
* Missouri Forest Ecosystem Project - MOFEP
* Feral Hogs
WILDLIFE
* Invasive Species Management
* Deer
* Furbearers
* Turkey
* Migratory Birds
* Bear
* Small Game
* Elk
* Commercial / Confined Wildlife
* Bird Conservation
* Wildlife Damage and Wildlife Human Interaction
OTHER
* Wildlife Diversity and Endangered Species
* Natural Resource Management Planning Training Program
* Statewide Resource Management Branch Public Contact & Response program
* SRM Branch Information Management Program
* Federal Aid Program - Wildlife and Sportfish Restoration Program
* Statewide Resource Management Branch Contracts, Grants and Agreements
Forest Management Planning
Sustainable Harvest Level Assessment
Monitoring Program Description
The management plan outlines forest management policies and objectives: The MDC links Strategic Priorities, Budgets, Work Plans, and Accomplishments to Deliver Priority-based Conservation. Strategic plan,
Sustainable Harvest Levels are maintained through use of:
https://mdc.mo.gov/sites/default/files/2023-04/CCS.pdf. The state conservation lands are organized under areas guided by Finalized Area Plans | Missouri Department of Conservation (mo.gov). Resources (compendium) for planning include: Atlas of Missouri Ecoregions (this publication can also be found here); MDC Conservation Opportunity Areas; MDC Continuous Forest Inventory; Conservation Commission Policy - Area Planning; MFMG - 11 - Missouri Forest Management Guidelines - Chapter 11: Generally Accepted Principles for Silviculture; MDC Vegetative Management Scheduling and Documentation. Restoration goals are prioritized by areas classified using a Tiered system, described and available here, Missouri Comprehensive Conservation Strategy - MDC Tiered Approach to Natural Community and Habitat Management (arcgis.com)
1. Inventory and Planning: Area Managers use multiple data sources like Ecological Land Classification System, Web Soil Survey, GIS data, Natural Heritage Database, and more for forest inventory. They work under the guidance of the Forestry Field Programs Supervisor and follow an inventory schedule.
3. No Fixed Cut: Missouri Department of Conservation (MDC) doesn't set a fixed allowable cut but focuses on natural community restoration.
2. Reentry Periods: Harvesting cycles are between 10 and 20 years depending on site quality and overall objectives.
4. Research and Modeling: Ongoing research using LANDIS and MOFEP data for growth and yield modeling.
6. Continuous Forest Inventory (CFI): Implemented in 2010, it involves 462 plots across 8 regions. One-fifth of these are measured annually to calculate sustainable harvest levels.
5. Area Control Method: Previously used to calculate sustainable harvest levels to address neighbor concerns.
References:
* Atlas of Missouri Ecoregions
* CFI Summary Report - 2021.pdf
* MDC Conservation Opportunity Areas
* Conservation Commission Policy - Area Planning
* MDC Continuous Forest Inventory
* Missouri Forest Management Guidelines - Chapter 11
* FY'20 State Land Accomplishments
* MDC Vegetative Management Scheduling and Documentation
Metrics
* Inventory Systems: CFI started in 2010, used for annual or periodic harvest level determination.
* Current Harvest Trends: Fall within long-term sustainable levels identified in the forest management plan.
* Periodic Updates: Inventory and harvest plans are updated to account for environmental changes like drought, climate change, etc.
* Social, Environmental, Economic Impacts: Management considers local and regional impacts.
* Documentation: All practices and treatments are recorded in Forestry E-GIS and MOFITS.
* Additional Tools: Various guidelines and policies provide the framework for management practices.
* MOFITS: Data collection system for timber sale documentation and forest inventory.
Technologies and Systems Used
* Forestry E-GIS: Geographical Information System for forest management.
* Public Lands Performance Reporting Tool: Used by field staff to report accomplishments.
* Survey 123: New reporting system in development.
References above.
3. Audit Process
3.1 Applicable Standards and Audit Objectives
Certificate Code
SCS-SFI/FM-010232
Valid from 5 October 2023 Expiry Date 18 October 2027
Audit Type
☐ Stage 1, Preliminary Review Audit
☐ Stage 2, Certification Audit
☐ Re-Certification
☐ COVID-19 Additional Surveillance
☒ 1 st , ☐
2 nd
, ☐ 3 rd or
☐ 4 th Surveillance
☐ Transfer
☐ Expansion of Scope
☐ Other (describe
):
Applicable Standards
☒ SFI: 2022 Forest Management. Objectives 1-17. Objectives 1-17: 3, 6, 11, 15, 16, and 17
☒ SFI: Rules for Use of SFI On-Product Labels and Off-Product Marks
☐ SFI: Audits of Multi-Sites
☐ ATFS: Forest Management, 2021. Standards 1-8
☐ ATFS: AFF 2021 Standards for Independently Managed Groups. Sections 1-4
☐ ATFS: ATFS 2021 Logo Use Guidelines
Multiple Standards
☒ N/A, this is not a multi-standard nor a multi-CB audit. List/Describe other schemes
SFI Substitute or Modified Indicators
☒ None, ☐ Yes, Substitute or Modified Indicators used and justification:
Certificate Scope/ Statement
The scope of this audit is “land management on Department o f C onse rvat ion owned land in the state of Missouri”. The audit was conducted against the SFI 2022 Forest Management Standard. The 2023 Audit evaluated Objectives 1-17: 3, 6, 11, 15, 16, and 17. There was no substitution or modification of indicators. Specifically, two objectives of the SFI audit were to, 1) verify that the certified organization’s SFI Program is in conformance with the SFI Objectives, Performance Measures, and Indicators, and any additional indicators that the certified organization chooses, and 2) verify whether the certified organization has effectively implemented its SFI Standard program requiremen t s on t he g roun d.
Description of Sampling Approach
The lead auditor pre-selected field sites to meet sampling requirements of the Standard. For random site/forest selection, the lead auditor used a list of harvest sites done for the prior year to sample a range of conditions and common forest management activities. The preliminary list of sites was submitted to the lead auditor by the certified organization. Alternate sites were selected by the lead auditor to substitute if needed. Forestry environmental risk categories included FORI; RT&E; road infrastructure such as road construction and maintenance; stream crossings; BMP or remediation work; riparian areas; planting; chemical/herbicide applications; recreation; and other unique/special sites. The lead auditor adjusted the sampling and itinerary in the following: additional sites were added during the audit within compartments with active and closed timber sales.
Deviations from the Audit Were there any significant deviations from the Audit Plan?
☐
3.2 Audit Team
| | Auditor name: | Beth Jacqmain | Auditor role: |
|---|---|---|---|
| Qualifications: | Qualifications: | | |
3.3 Total Time Spent on Audit
| A. Number of days spent on-site for the Audit | 4 |
|---|---|
| B. Number of auditors participating in on-site audit | 1 |
| C. Number of days spent by any technical experts (in addition to amount in line A) | 0 |
| D. Additional days spent on preparation, stakeholder consultation, and follow-up | 5 |
3.4 Summary of Audit Itinerary and Site Visits
| | Location(s) sampled | Central and Ozark Regions |
|---|---|---|
| | Number of field sites | 10 |
| Summary of Cover Types visited | | Central hardwoods. Noting that MDC managed based on eco-types and ecosystem restoration |
| | | goals drives all management, not timber production. As such standard cover types are |
| | | gradually being converged with ecological plant/wildlife community units over time. |
| Summary Description /Number of Silviculture Activities inspected | | The audit reviewed the full range of standard MDC management of silviculture activities |
| | | including harvests from thinnings to clearcuts, patch cuts, and active prescribed burning |
| | | program, scarification projects, and others designed to restore, maintain, and enhance native |
| | | plant communities and ecosystems. |
| | Summary Description | The audit included 6 active and closed timber sales used to achieve restoration goals to |
| | /Number of Harvest | examine BMPs, potential environmental impacts, and review documentation and process |
| | Areas inspected | aspects. |
| | Summary Description of | Roads were examined throughout the audit, were well done and in good condition. Road |
| | Road infrastructure | projects were primarily maintenance and culvert replacement work. |
| | inspections | |
3.5 Evaluation of Management Systems
SCS deploys teams with expertise in forestry and other relevant fields to assess the certified organization's conformance to SFI standards and policies. Audit methods include reviewing documents and records, interviewing personnel and contractors, implementing sampling strategies to visit a broad number of forest cover and harvest prescription types, observing implementation of management plans and policies in the field, and collecting and analyzing relevant stakeholder input. When there is more than one team member, each member may review parts of the standards based on their background and expertise. Applicable aspects of the Management System under evaluation, such as Management System Review and other relevant Objectives, Performance Measures, and Indicators will also inform the audit team. On the final day of an evaluation, team members convene to deliberate the findings of the audit jointly. This involves an analysis of all relevant field observations, interviews, reviewed documents and records, and relevant stakeholder input. Where consensus among team members cannot be achieved due to lack of evidence, conflicting evidence or differences of interpretation of the standards, the team is instructed to report these in the certification decision section and/or in observations.
3.6. Changes to Management System
☒ There were no significant changes in the management and/or harvesting methods that affect the FME’s conformance to the SFI standards, rules, and policies.
☐ Significant changes that affect the management system occurred since the last audit described as follows (describe):
3.7 Confirmation of Meeting Audit Objectives
1. Determination of the conformity of the client's management system, or parts of it, with audit criteria (Selected Objectives, Performance Measures, and/or Indicators).
3. Determination of the effectiveness of the management system to ensure the client can reasonably expect to achieve specified objectives.
2. Determination of the ability of the management system to ensure the client meets applicable statutory, regulatory and contractual requirements.
4. As applicable, identification of areas for potential improvement of the management system. The objectives for this audit included:
Audit Objectives were met.
Yes ☒
No
☐ If no, provide an explanation:
4. Results of Audit
4.1 Grading of Possible Findings
Once a consensus is reached by the audit team, determinations of grading are made as to the level of findings. Grading of findings may occur as follows:
[x] Major CARs: Major Corrective Action Requests (CARs) occur when one or more of the SFI 2022 Standard(s) performance measures or indicators has not been addressed or has not been implemented to the extent that a systematic failure of a Certified Organization's SFI system to meet an SFI objective, performance measure or indicator occurs.
[x] Minor CARs: An isolated lapse in SFI 2022 Standard(s) implementation which does not indicate a systematic failure to consistently meet an SFI objective, performance measure or indicator.
[x] Opportunities for Improvement: Opportunities for Improvement (OFIs) are identified by audit team members where the client is in conformance, but there is a risk to conformance in the future. Nonconformance with the standard requirements cannot be recorded as OFIs.
[x] Exceeds: Practices that exceed the basic requirements of the SFI 2022 Standards and Rules for Forest Management or Fiber Sourcing.
4.2 Table of Audit Results and History of Findings for Certificate Period
This table lists Findings to the Performance Measure and/or Indicator level for each year of the certificate period and is updated annually.
| SFI Objective | Cert/Re-cert | | 1st Annual | | 2nd Annual | | 3rd Annual | 4th Annual |
|---|---|---|---|---|---|---|---|---|
| | Evaluation | | Evaluation | | Evaluation | | Evaluation | Evaluation |
| | (2022) | | (2023) | | (2024) | | (2025) | (2026) |
| No findings | ☒ | ☒ | | ☐ | | ☐ | | |
| 1 | | | | | | | | |
| 2 | | | | | | | | |
| 3 | | | | | | | | |
| 4 | | | | | | | | |
| 5 | | | | | | | | |
| 6 | | | | | | | | |
| 7 | | | | | | | | |
| 8 | | | | | | | | |
| 9 | | | | | | | | |
| 10 | | | | | | | | |
| 11 | | | | | | | | |
| 12 | | | | | | | | |
| 13 | | | | | | | | |
| 14 | | | | | | | | |
| 15 | | | | | | | | |
| 16 | | | | | | | | |
| 17 | | | | | | | | |
| COC | | | | | | | | |
| Trademark | | | | | | | | |
| Group | N/A | N/A | | N/A | | N/A | | |
| Other | | | | | | | | |
4.3 General Description of Evidence of Conformity
This section summarizes the general evidence found to verify conformity that is detailed in Appendix 5.
Objective 2. Forest Health and Productivity. To ensure long-term forest productivity and conservation of forest resources through prompt reforestation, afforestation, deploying integrated pest management strategies, minimized chemical use, soil conservation, and protecting forests from damaging agents.
Objective 3. Protection and Maintenance of Water Resources. To protect the water quality and water quantity of rivers, streams, lakes, wetlands, and other water bodies.
Objective 4. Conservation of Biological Diversity.
Objective 5. Management of Visual Quality and Recreational Benefits. To manage the visual impact of forest operations and provide recreational opportunities for the public.
To maintain or advance the conservation of biological diversity at the stand- and landscape- level and across a diversity of forest and vegetation cover types and successional stages including the conservation of forest plants and animals, aquatic species, threatened and endangered species, Forests with Exceptional Conservation Value, old-growth forests and ecologically important sites.
Objective 6. Protection of Special Sites. To manage lands that are geologically or culturally important in a manner that takes into account their unique qualities.
Objective 7. Efficient Use of Fiber Resources. To minimize waste and ensure the efficient use of fiber resources.
Not evaluated in 2023.
All harvest sites in the audit complied with the Missouri Watershed Protection Practices (BMP), exceeding guidelines in some areas such as stream management zones. While water bars are in place on roads and skid trails, they do require ongoing monitoring to ensure proper installation by loggers. Timber harvests are subject to inspections that check for BMP compliance; although there's some variability in how inspection forms are filled out, this hasn't led to any program failure. Stream crossings observed during the audit were executed exceptionally well, effectively preventing sediment from entering the water. Logging contracts have built-in clauses that mandate BMP compliance. Overall, the agency relies on the implementation of BMPs to maintain water quantity. Its forest management activities are conducive to this aim, given the minimal clear-cutting and the largely forested nature of the lands, which ensure a stable flow of water.
Not evaluated in 2023.
Not evaluated in 2023.
MDC manages the natural heritage database, which includes information on cultural and historical resources. The potential presence of these resources is examined during activity planning processes
Not evaluated in 2023.
| Objective 8. Recognize and Respect Indigenous Peoples’ Rights. To recognize and respect Indigenous Peoples’ rights and traditional knowledge. | Not evaluated in 2023. |
|---|---|
| Objective 9: Climate Smart Forestry. To ensure forest management activities address climate change adaptation and mitigation measures. | Not evaluated in 2023. |
| Objective 10. Fire Resilience and Awareness. To limit susceptibility of forests to undesirable impacts of wildfire and to raise community awareness of fire benefits, risks, and minimization measures. | Not evaluated in 2023. |
| Objective 11. Legal and Regulatory Compliance. To comply with all applicable laws and regulations including, international, federal, provincial, state, and local. | MDC employs contract terms, planning, training, and monitoring to achieve and ensure regulatory compliance. A written policy addressing social laws, including gender equality and diversity, is in place. |
| Objective 12. Forestry Research, Science and Technology. To invest in research, science, and technology, upon which sustainable forest management decisions are based. | Not evaluated in 2023. |
| Objective 13. Training and Education. To improve the implementation of sustainable forestry through appropriate training and education programs. | Not evaluated in 2023. |
| Objective 14. Community Involvement and Landowner Outreach. To broaden the practice of sustainable forestry through public outreach, education, and involvement, and to support the efforts of SFI Implementation Committees. | Not evaluated in 2023. |
| Objective 15. Public Land Management Responsibilities. To participate and implement sustainable forest management on public lands. | The agency is required to get input from the public and adjoining landowners as part of its area planning process. This is a formal process, but also includes opportunities during public outreach efforts. |
| Objective 16. Communications and Public Reporting. To increase transparency and to annually report progress on conformance with the SFI Forest Management Standard. | MDC’s 2022 recertification audit report as found on the SFI; Inc. website as required for public review. MDC provides copies of past reports publicly online. |
| Objective 17. Management Review and Continual Improvement. To promote continual improvement in the practice of sustainable forestry by conducting a management review and monitoring performance. | MDC has instituted a structured data collection framework aimed at assessing the agency's adherence to the SFI standards. Internal audits are routinely conducted to evaluate this conformance, and the findings are then relayed to senior management. Progress toward SFI objectives is consistently reviewed in both monthly staff meetings and quarterly managerial sessions. |
4.4 Existing Corrective Action Requests, OFIs, and Exceeds
No open findings from prior year audits.
4.5 New Corrective Action Requests, OFIs, and Exceeds
No new findings were issued as a result of the 2023 audit.
5. Certification Decision
The certificate holder has demonstrated continued overall conformance to the applicable Sustainable Forestry Initiative standards. The SCS annual audit team recommends that the certificate be sustained, subject to subsequent annual audits and the Certified Organization’s response to any open CARs.
Yes ☒
No ☐
Comments: Exceptional stewardship ethic demonstrated by all staff throughout the audit, and also demonstrated a very high level of understanding of the standard and requirements with well organized evidence and materials.
|
Nutrition Journal
BioMedCentral
Research
Open Access
More distinct food intake patterns among women than men in northern Sweden: a population-based survey
Anna Winkvist* 1 , Agneta Hörnell 2 , Göran Hallmans 3 , Bernt Lindahl 4 , Lars Weinehall 5,6 and Ingegerd Johansson 7
Address: 1 Department of Clinical Nutrition, Sahlgrenska Academy, University of Gothenburg, Göteborg, Sweden, 2 Department of Food and Nutrition, Umeå University, Umeå, Sweden, 3 Nutrition Research, Department of Public Health and Clinical Medicine, Umeå University, Umeå, Sweden, 4 Behavioral Medicine, Department of Public Health and Clinical Medicine, Umeå University, Umeå, Sweden, 5 Department of Community Medicine, Västerbotten County Council, Umeå, Sweden, 6 Epidemiology and Public Health Sciences, Department of Public Health and Clinical Medicine, Umeå University, Umeå, Sweden and 7 Cariology, Department of Odontology, Umeå University, Umeå, Sweden
Email: Anna Winkvist* - firstname.lastname@example.org; Agneta Hörnell - email@example.com; Göran Hallmans - firstname.lastname@example.org; Bernt Lindahl - email@example.com; Lars Weinehall - firstname.lastname@example.org; Ingegerd Johansson - email@example.com
* Corresponding author
Published: 19 February 2009
Nutrition Journal 2009, 8:12 doi:10.1186/1475-2891-8-12
This article is available from: http://www.nutritionj.com/content/8/1/12
© 2009 Winkvist et al; licensee BioMed Central Ltd.
This is an Open Access article distributed under the terms of the Creative Commons Attribution License (http://creativecommons.org/licenses/by/2.0), which permits unrestricted use, distribution, and reproduction in any medium, provided the original work is properly cited.
Abstract
Background: The need to promote a healthy diet to curb the current obesity epidemic has today been recognized by most countries. A prerequisite for planning and evaluating interventions on dietary intake is the existence of valid information on long-term average dietary intake in a population. Few large, population-based studies of dietary intake have been carried out in Sweden. The largest to date is the Västerbotten Intervention Program (VIP), which was initiated in 1985, with data collection still ongoing. This paper reports on the first comprehensive analyses of the dietary data and presents dietary intake patterns among over 60,000 women and men in northern Sweden during 1992–2005.
Methods: Between 1992 and 2005, 71,367 inhabitants in Västerbotten county aged 30, 40, 50, and 60 years visited their local health care center as part of the VIP. Participants of VIP filled in an 84- or 64-item food frequency questionnaire (FFQ) and provided sociodemographic information. Complete and realistic information on consumption frequency was provided by 62,531 individuals. Food intake patterns were analyzed using K-means cluster analyses.
Results: The mean daily energy intake was 6,83 (± 1,77) MJ among women and 8,71 (± 2,26) MJ among men. More than half of both women and men were classified as Low Energy Reporters (defined as individuals reporting a food intake level below the lower 95% confidence interval limit of the physical activity level). Larger variation in frequency of daily intake was seen among women than among men for most food groups. Among women, four dietary clusters were identified, labeled "Fruit and vegetables", "High fat", "Coffee and sandwich", and "Tea and ice cream". Among men, three dietary clusters were identified, labeled "Fruit and vegetables", "High fat", and "Tea, soda and cookies".
Conclusion: More distinct food intake patterns were seen among women than men in this study in northern Sweden. Due to large proportions of Low Energy Reporters, our results on dietary intake may not be suitable for comparisons with recommended intake levels. However, the results on food intake patterns should still be valid and useful as a basis for targeting interventions to groups most in need.
Page 1 of 9
(page number not for citation purposes)
Received: 12 October 2008
Accepted: 19 February 2009
Background
Chronic diseases are on the rise worldwide. At the risk factor level, these can be regarded as communicable diseases in so far as major risk factors such as diet and physical activity patterns are spreading from culture to culture, thus changing the disease pattern globally [1]. Convincing evidence exists for associations between high intake of energy-dense foods, as well as low intake of fruits and vegetables, and obesity as well as cardiovascular diseases [1]. Convincing evidence also exists for associations between high intake of sugars, and dental caries; low intake of vitamin D, and osteoporosis; high intake of red meat and processed meat, and colorectal cancer; and high intake of alcohol, and cancer of the oral cavity, pharynx, larynx, esophagus, and breast [1,2].
The need to promote a healthy diet to curb the obesity epidemic has today been recognized by most countries. In 2004, the World Health Organization presented its Global Strategy on Diet, Physical Activity and Health, which urges all United Nations member states to promote lifestyles that include a healthy diet and foster energy balance [3]. Similar plans of action on diet and physical activity have recently been adopted by European as well as Nordic countries [4,5].
A prerequisite for planning and evaluating interventions on dietary intake is the existence of valid information on long-term average dietary intake as well as patterns of intake in a population. Few large, population-based studies of dietary intake have been carried out in Sweden. The largest to date is the Västerbotten Intervention Program (VIP), which was initiated in 1985, with data collection still ongoing. This paper reports on the first comprehensive analyses of the dietary data and presents dietary intake patterns among over 60,000 women and men in northern Sweden during 1992–2005.
Methods
Study population
Since 1985, inhabitants in Västerbotten county in northern Sweden (population of 255,000) have been invited by a mailed invitation letter to their local health center for a medical examination when turning 40, 50, and 60 years of age. Initially, also 30-year olds were invited. Participants fill in an extensive diet and lifestyle questionnaire. During 1992–1993, 57 percent of eligible inhabitants participated and there were no systematic differences between participants and non-participants [6]. Participation rates have since been 58–66 percent.
Food intake measurements
The questionnaire includes a semi-quantitative food frequency questionnaire (FFQ). Portion sizes are indicated by color photographs of four plates of increasing portion sizes for staple food, meat, and vegetables. Frequency of dietary intake is reported on a 9-level scale, from "none" to "four or more times a day". Initially, the FFQ included 84 food items, but from 1996 a 64 food item version was introduced. The reduction to 64 food items was achieved by deleting entire foods or, in a few cases, by merging similar food items. Among the participants included here, 59.2% of the 40, 50 and 60 yrs old participants had filled in the 64-food item version and 40.8% the 84-food item version. Among the 30 yrs old participants, 16.3% had filled in the 64-food item version and 83.7% the 84-food item version, reflecting participation only in the early phase of VIP. Women had a reported energy intake of 7.45 (± 1.84) MJ for the 84-food item version and 6.38 (± 1.58) MJ for the 64-food item version (P < 0.000). Men had a reported energy intake of 9.01 (± 2.23) MJ for the 84-food item version and 8.51 (± 2.25) MJ for the 64-food item version (P < 0.000). These two sources of dietary data have been combined into one file for the purpose of the food patterns analyses, after harmonizing both data sources. In this process, food items in the 84-food item version were merged to correspond with similar food item groups in the 64-food item version.
Daily intake has been calculated by multiplying frequency of intake by a portion size value using the national food composition database [7]. Portion sizes used were those indicated on the photographs, natural sizes such as an orange, or average portion sizes for the sex and age as determined in a national survey [8,9]. Energy and nutrient contents were calculated using the software MATs (Rudans Lättdata, Västerås, Sweden).
A validation of the 84-item FFQ was carried out among 246 participants, using ten repeated 24 hour dietary recalls and plasma β-carotene [9]. These participants repeated the FFQ one year later to assess reliability. Good agreement was found for energy and nutrients between the two occasions (median Pearson correlation 0.68). A moderately higher dietary intake was found for the FFQ compared with the 24 hour dietary recall with respect to dairy products, bread/cereals, vegetables, fruits, and potato/rice/pasta. By contrast, a moderately lower dietary intake was found for meat, fish, sweet snacks, and alcohol. The average Spearman's correlation coefficient between the two methods was 0.15–0.69 for various foods and 0.31–0.61 for various nutrients, indicating poorer ability of the FFQ to accurately estimate levels of nutrient intake. However, more than 68 percent of the participants placed within the lowest and highest FFQ quartiles were classified also into the corresponding quartiles of the 24 hour dietary recalls for both foods and nutrients. Extreme misclassification between the lowest and highest quartiles with respect to any food or nutrient was noted for fewer than five individuals. Also, the measurements in the 24
hour dietary recalls increased monotonically over the quartiles of the FFQ measurement for all foods and most nutrients. Hence, the FFQ should be valid for the ranking of individuals with regard to food and nutrient intake.
In total, 83,013 health checkups (43,128 in women and 39,885 in men) were performed 1992 – 2005. Information provided before 1992 was not optically readable and was therefore not available. Among the 83,013 visits, 71,367 were first-time visits and only these were included here. Among these 71,367 individuals, information on portion sizes was missing for 1,747 individuals and information on consumption frequency was missing on more than 10% of the food items for 1,293 individuals. Food intake level (FIL) was calculated as reported total caloric intake, divided by estimated basal metabolic rate (BMR) [10]. Altogether, 5,425 individuals with an FIL below the 5th percentile or above the 97.5th percentile (calculated separately by sex and FFQ version) were deemed unrealistic and excluded. Another 371 individuals lacked FIL information. The final sample included only individuals with acceptable data on portion sizes, intake frequencies, and FIL (n = 62,531; 32,600 women and 29,931 men).
To assess levels of low energy reporting, the FIL was compared with physiologically plausible physical activity levels (PALs), calculated as the ratio of total energy expenditure to BMR [11]. Confidence interval limits for agreement between FIL and PAL were calculated as follows:
where SD is the number of SDs corresponding to the confidence interval (CI) chosen, S is the overall coefficient of variation for PAL, taking into account the variability in energy intake and BMR, and n is the number of subjects included. S was calculated as follows:
where CW 2 IW is the within-individual variation in energy intake, k is the number of measurement days, CV 2 B is the precision of estimated vs. measured BMR, and CV 2 P is the between-subject variation in PAL. In our analyses, CW IW equaled 28.6% and was derived from the ten 24 hour dietary recalls in our validation study [9]; CV B was set to 8% [10], and CV P was assumed to be 12.5% [12]. Furthermore, n equaled one individual, and k for food frequency = ∞, meaning that CW 2 IW /k = 0. The SD was set to -1.96 to obtain the lower limit of a 95% CI. The PAL was estimated from reported physical activity at work and at leisure [13]. Accordingly, the lower 95% CI limit of the FIL corresponded to PAL × 0.748 and this was used to define Low Energy Reporters on an individual level. Similarly, the upper 95% CI limit corresponded to PAL × 1.336 and this was used to define High Energy Reporters.
Data analyses
Food intake patterns were evaluated using cluster analysis of observations, which separates participants into mutually exclusive groups and maximizes differences in intake of a number of food groups. The QUICK CLUSTER procedure in SPSS, version 14.0 (Chicago, IL, USA), was used, based on the K-means method. This procedure organizes individuals into optimal clusters, starting with the initial individual in the data file and thereafter adding individuals one by one. To minimize any effect of the ordering of individuals, five random variables were created and used to sort the data file in ascending as well as descending order. Cluster assignment was robust for both women and men across the ten runs obtained; 97 to 99% of the women and 92 to 100% of the men were assigned to the same cluster in all runs. Emerging patterns were evaluated for two to ten clusters for women and men, respectively. Differences among the clusters in intake of all included food groups were scrutinized and the F-statistic for the analysis of variance tables was inspected. Food items from the FFQ were grouped into meaningful food groups according to nutrient content and/or culturally relevant culinary preferences. Finally, 36 food groups were included (Table 1). Dietary data based on frequency of intake were used in the analyses. To improve robustness of the analyses the frequency of intake was energy adjusted by using frequency/1000 kcalories. The cluster analyses also were repeated after removing all Low Energy Reporters. Groups with similar unique dietary intake characteristics to those reported for the whole sample were found among both women and men; only exception was lower coffee intake among women in the group labeled "Coffee and sandwich" and lower tea intake among men in the group labeled "Tea, soda and cookies". Finally, the cluster analyses were repeated on the 64-item and the 84item FFQs separately, and the patterns were stable across the two versions.
Differences in background characteristics between included and excluded individuals as well as between Low Energy Reporters and normal reporters were evaluated using Student's t-test and chi-square test. Differences in food consumption patterns between women and men were investigated using the Mann-Whitney U-test, and differences among clusters within each sex were investigated using the Kruskal-Wallis analysis of variance test. This project was approved by the regional ethical committee, Göteborg, Sweden.
Table 1: Food items included in the 36 food groups used in cluster analyses
Results
Study population
Important differences between the 62, 531 included and 8, 836 excluded individuals included age [47.6 (± 9.3) vs. 49.3 (± 10.2) yrs, P < 0.001]; body mass index [25.7 (± 4.0) vs. 26.6 (± 5.0), P < 0.001]; marital status (81.2% married/cohabitating vs. 73.0% married/cohabitating, P < 0.001), education (25.0% basic level education only vs. 38.4% basic level education only, P < 0.001) and smoking (17.4% current smokers vs. 21.4% current smokers, P < 0.001).
Information on socio-demographic characteristics and dietary intake of the included individuals is given in Table 2. Among women, 19.0% were current smokers and 5.1% were current snuff users. Among men, 15.7% were current smokers and 26.8% were current snuff users.
The proportion of different macronutrients of total energy intake was similar for both sexes. The proportion of individuals defined as Low Energy Reporters was high for both sexes. For both sexes, low energy reporting was significantly more common with higher BMI, higher age, and lower education (P < 0.05). Also, low energy reporting was significantly more common with higher levels of physical activity both at work and at leisure (P < 0.05), which probably reflects that energy reporting is evaluated in relation to level of physical activity. Reported intake of macro- and micronutrients decreased with increasing age among both women and men [see Additional file 1].
Dietary patterns
Among the women, four distinct food intake pattern clusters were identified and these were labeled "Fruit and vegetables", "High fat", "Coffee and sandwich", and "Tea and ice cream". Among men, three distinct clusters were identified and were labeled "Fruit and vegetables", "High fat", and "Tea, soda and cookies". In Tables 3 and 4, intake of the 36 contributing food groups is indicated for these clusters as variation above and below the mean frequency of daily intake for each of the 36 food groups. The last column gives the overall mean frequency of intake per day for all women (Table 3) and men (Table 4).
In general, women had significantly more frequent consumption of fruits and vegetables compared with men (P < 0.000). Among the women's clusters, the average daily frequency intake of fruit and vegetables ranged from 0.91 to 2.00 and from 0.91 to 2.43 times per day, respectively. Among the men's clusters, the average daily intake of fruit and vegetables ranged from 0.49 to 0.65 and from 0.53 to 0.72 times per day, respectively. Also, women significantly more often consumed staple foods, bread, cheese, fish, chicken, sweets, wine, coffee, and tea compared with men (P < 0.000). By contrast, men consumed sugar and jam, beer, and spirits significantly more often compared with women (P < 0.000). Overall, larger variation in intake was seen among women than among men. This was indicated by the number of clusters identified as well as the larger SD in mean frequency of daily intake for most food groups among women than among men (Tables 3 and 4).
Consumption patterns for food groups and nutrients differed significantly among the clusters for both sexes (P < 0.000). The women in the "Fruit and vegetables" group typically had more frequent consumption of fruit and vegetables, chicken, fish, and red meat, compared with the other groups. Of the four groups, this group had the highest intake of carotenoids and vitamin C and the lowest intake of energy, fat, iron and retinol (data not shown). Typical for the women in the "High fat" group was a more frequent consumption of high-fat spreads, high-fat milk and high-fat cheese and cream. These women had the
Table 2: Basic characteristics of participants in the Västerbotten Intervention Program during 1992–2005
highest intake of fat (data not shown). Women in the "Coffee and sandwich" group reported more frequent consumption of coffee, bread, low-fat spreads, low-fat cheese and cold cuts. Finally, the women in the "Tea and ice cream" group had more frequent consumption of tea and ice cream, resulting in the highest intake of energy, protein, carbohydrates, calcium, and iron among the groups (data not shown).
had the highest intake of protein, fat, carbohydrates, vitamin C, calcium, and iron among the groups (data now shown).
The men in the "Fruit and vegetables" group had a more frequent consumption of fruits and vegetables, low-fat spreads, high fiber bread, low-fat milk and low-fat cheese, chicken, and wine. These men showed the lowest intake of fat and the most frequent intake of carotenoids among the three groups (data not shown). Typical for the men in the "High fat" group was a more frequent consumption of high-fat spreads, coffee, fat in cooking, high-fat milk, sugar and jam, and beer. Concurrently, these men exhibited the lowest intake of energy, protein, carbohydrates, alcohol, retinol, carotenoids, vitamin C, calcium, and iron among the groups (data now shown). Finally, the men in the "Tea, soda and cookies" group demonstrated more frequent consumption of soda, tea and cookies. These men
Among women, typical characteristics of the "Fruit and vegetables" group were a higher proportion of Low Energy Reporters, as well as a higher mean age and a higher mean BMI and weight. Among the "High fat" group, typical characteristics included a higher proportion of smokers, lower education, and lower mean BMI and weight. Among the "Coffee and sandwich" group, common characteristics were a higher proportion of Low Energy Reporters, a higher proportion of smokers, and lower education. Finally, typical characteristics of the "Tea and ice cream" group were a lower mean age, a low proportion of smokers, and high education. These differences between groups were significant (P < 0.000).
Among men, typical characteristics of the "Fruit and vegetables" group included a higher proportion of Low Energy Reporters, and a higher mean BMI and weight. Among the "High fat" group, typical characteristics were a higher proportion of Low Energy Reporters and a higher proportion
Table 3: Food intake patterns in women in northern Sweden, 1992–2005
SD, Standard deviation
1 The sign – indicates variation below the mean daily frequency of intake for all women, while + indicates variation above the mean daily frequency of intake for all women. For example, we used + (or -) for 0.1–0.49 SD units (SDUs); ++ (or --) for 0.5–0.99 SDUs; and +++ (or ---) for 1.0–1.99 SDUs. The sign = means equal to mean frequency of intake. For example, for "High-fat spreads", the "Fruit and vegetables" group had a mean intake that was 0.1–0.49 SDUs below the mean intake for all women, i.e., 0.1 × 0.75 – 0.49 × 0.75 below 0.66 times/day, which equals between 0.29 and 0.58 times/day.
of smokers, as well as a higher proportion of snuff users, and lower education. Finally, among members of the "Tea, soda and cookies" group, typical features included lower age and being unmarried. These differences in mean characteristics between groups were significant (P < 0.000).
Discussion
The strength of the VIP dietary database is its size, with over 60,000 records between 1992–2005. The most suita- ble dietary data collection tool for such large epidemiological studies is the FFQ, which provides approximations of habitual diet over longer periods of time, and may allow ranking of individuals according to food or nutrient intake [14]. The FFQ is simple and user-friendly but, unfortunately, has limitations. The large proportion of Low Energy Reporters among both women and men in our study illustrates one common limitation of FFQs. Even so, our levels are higher than those commonly reported. This may reflect the relatively limited number of
Table 4: Food intake patterns in men in northern Sweden, 1992–2005
SD, Standard deviation
1 The sign – indicates variation below the mean frequency of intake, while + indicates variation above the mean frequency of intake. For example, we used + (or -) for 0.1–0.49 SD units (SDUs); ++ (or --) for 0.5–0.99 SDUs; and +++ (or ---) for 1.0–1.99 SDUs. The sign = means equal to mean frequency of intake. For example, for "High-fat spreads", the "Fruit and vegetables" group had a mean intake of 0.5–0.99 SDUs below the mean intake, i.e., 0.5 × 0.64 – 0.99 × 0.64 below 0.70 times/day, which equals 0.07–0.38 times/day.
food items in our FFQ (84 and 64), because reported intake levels tend to correlate with number of food items available in the FFQ [14]. In accordance with other studies, low energy reporting in our study was more common among those with higher BMI, higher age, and lower education [15-17]. Thus, results from the VIP dietary database should be interpreted with caution in comparisons with recommended levels of intake. However, our validation study demonstrated the database's ability to correctly rank individuals and it is for this purpose that we recommend that the VIP dietary database be used in the future. Conse- quently, our results on food intake patterns, which are based on rankings, should still be valid. This is supported by our comparison of results from cluster analyses on the entire sample (as shown in this paper) and cluster analyses only on plausible reporters (see Methods above). Similar conclusions also were reached in an American comparison of dietary patterns based on the entire study sample and based only on plausible reporters [18].
To improve robustness and account for differences in reported energy intake, our analyses were based on
reported frequency of intake/1000 kcalories. Groups with high levels of underreporting, such as the "Fruit and vegetables" groups, may thus be represented by higher frequencies/1000 kcalories than other groups with lower levels of underreporting. This may falsely enhance differences among groups in the cluster analyses process. However, reported differences in frequency of intake among cluster groups were indeed large even without energy adjustment, as seen in Tables 3 and 4.
On the whole, women reported significantly more frequent consumption of fruit and vegetables compared with men, consistent with earlier findings from the Swedish national dietary study [19]. Indeed, in our study the female cluster with the least frequent intake reported 40% more frequent consumption of fruits and 26% more frequent consumption of vegetables than the male cluster with the most frequent intake. The Swedish national dietary study [19] found higher intakes of fruit and vegetables among women than among men. In our study, men had a significantly more frequent consumption of sugar and jam, beer, and spirits compared with women, also this consistent with the Swedish national dietary study [19]. Consequently, most patterns by sex found in our study are in line with national data.
Women and men exhibiting a "Fruit and vegetables" eating pattern in general reported a healthy diet, with frequent consumption of fruit and vegetables and low-fat products. A typical characteristic of "Fruit and vegetables" women and men was a higher proportion of underreporting, which may reflect a desire to report only what is healthy. Thus, it is possible that the profile of healthy eating in these groups partly reflects a desire to eat healthy and partly what is actually being consumed. Similarly, the higher BMI values in these groups may reflect this desire to eat healthy or it may reflect a pre-existing condition that has encouraged these women and men to change to a healthier diet.
Women and men with a "High fat" diet had frequent consumption of high-fat products, beer and sugar. "High fat" women and men typically were smokers and had a lower educational level. Other studies have also reported clusters with distinct healthy and non-healthy profiles, e.g., among Americans [20], Italians [21], and Irish individuals [22]. Of these studies, only the Italian one developed clusters for women and men separately. Hence, cluster membership can probably be said to capture a broad lifestyle profile. This will be further explored in a forthcoming paper.
Among women in our study, two additional distinct patterns were seen, the "Coffee and sandwich" and "Tea and ice cream" clusters, while among men, a third group emerged, labeled "Tea, soda and cookies". Women in the "Coffee and sandwich" group had frequent consumption of coffee, bread and low-fat products, while women in the "Tea and ice cream" group and men in the "Tea, soda and cookies" group reported frequent consumption of the food items indicated in their names. Such patterns have not been reported in studies from other countries using cluster analyses and this may reflect consumption patterns more typical for Sweden. A study of food clusters among adults (both sexes together) in southern Sweden identified one cluster with "Sweets and cakes" and one with "White bread" [23]; these may correspond to our "Coffee and sandwich" group.
In our analyses, excluded individuals reported higher body mass index and less healthy life style habits than did included individuals; a finding consistent with most studies evaluating this phenomenon. However, due to our large sample size, even small differences in background variables exhibited large statistical significance. Still, future analyses of associations between dietary patterns and health outcomes need to take possible consequences of selection bias into account. Finally, it was not within the scope of this analysis to evaluate changes in intake that may have occurred during the data collection period. However, this would be valuable to further investigate in the future.
Conclusion
In conclusion, more distinct food patterns, including larger variation in frequency of daily intake, was found among women than among men for most food groups. Due to the high level of low energy reporting, our results on dietary intake may not be suitable for comparisons with recommended intake levels. However, the results on food intake patterns should be valid and useful as a basis for targeting interventions to groups most in need.
Abbreviations
BMI: body mass index; BMR: basal metabolic rate; CI: confidence interval; FFQ: food frequency questionnaire; FIL: food intake level; PAL: physical activity level; and VIP: Västerbotten Intervention Program.
Competing interests
The authors declare that they have no competing interests.
Authors' contributions
GH, BL, LW and IJ designed and carried out the Västerbotten Intervention Project and the collection of dietary data. IJ was responsible for the validation of dietary data. AW and IJ were responsible for the creation of a coherent dietary data base. AW and AH carried out the statistical analysis. AW drafted the manuscript. All authors read and approved the final manuscript.
Additional material
Additional file 1
Reported intake of important macro- and micronutrients among study women and men by age groups. As supplementary information, we present four tables on intake of macro- and micronutrients among women and men in northern Sweden in 1992–2005, by age. Many nutrients exhibit a skewed distribution; hence, both means and standard deviations (SDs) are included.
Click here for file
[http://www.biomedcentral.com/content/supplementary/14752891-8-12-S1.doc]
Acknowledgements
This work was supported by the Swedish Council for Working Life and Social Research; the Swedish Cancer Society, the Swedish Research Council; the Wallenberg Foundation and the Västerbotten County Council, Sweden. We gratefully acknowledge Salmir Nasic for his help with the statistical analysis.
None of the above-mentioned funding bodies had any influence on study design, data collection, analysis or interpretation; writing or decision to submit the manuscript for publication.
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South Carolina State Historic Preservation Office, South Carolina Department of Archives and History scdah.sc.gov
Tax Savings for Owners of Historic Buildings
▲
RVATION HOTLINE #11 REHABILITATION INCENTIVES▼PRESERVATION HOTLINE #11▲REHABILITATION INCENTIVES▼PRESERVATION HOTLINE #11
In South Carolina, there are a number of state and federal tax incentives to help with the costs of preserving historic buildings. Both owner-occupied historic homes and historic buildings used to produce income, such as stores, offices, and apartments, may be eligible for tax incentives.
| Tax Incentive Program | Owner-Occupied Historic Residence | Income-Producing Historic Building |
|---|---|---|
| A. 20% Federal Historic Rehabilitation Tax Credit | | ✔ |
| B. 10% State Historic Rehabilitation Tax Credit (25% option ) | | ✔ |
| C. 25% State Historic Rehabilitation Tax Credit | ✔ | |
| D. Local Property Tax Special Assessment | ✔ | ✔ |
Note: A rehabilitation project involving mixed uses (a store on the first floor and an owner-occupied residence on the second floor, for example) may be eligible for two different tax incentive programs. In these projects, rehabilitation costs must be allocated for each use, with a corresponding allocation of the tax credits. For more information, refer to Tips on How to Apply for Mixed-Use Projects. Available at https://scdah.sc.gov/historicpreservation/programs/tax-incentives/income-producing.
Historic Preservation Tax Incentives — The Basics
The descriptions that follow are brief and do not include all of the detailed requirements for each program. Taxpayers/ owners should read the other sources of information indicated at the end of each description and consult with an accountant or other professional tax advisor for help in determining whether the programs will be of benefit to them. For rehabilitation projects, contact the State Historic Preservation Office (SHPO) early in the planning process. Some of the programs require approval before work begins.
A. 20% Federal Historic Rehabilitation Tax Credit
Review of work: The National Park Service must certify that the rehabilitation meets the Secretary of the Interior's Standards for Rehabilitation. Review begins with the State Historic Preservation Office (SHPO).
Incentive: Federal income tax credit equal to 20% of rehabilitation costs. In general, one dollar of tax credit earned reduces federal income taxes owed by one dollar. Eligible buildings: Buildings listed individually in the National Register of Historic Places or buildings that contribute to a National Register historic district. Eligible use: Income-producing use (such as offices, stores, or rental housing).
Expenditure requirements: Costs must exceed the adjusted basis of the building (the purchase price, minus the cost of the land, plus the value of improvements made, minus depreciation already taken).
Authorizing legislation: Tax Reform Act of 1986 (PL99514; Internal Revenue Code Section 47), also Tax Cuts and Jobs Act of 2017 (Public Law 115-97).
For more information: SHPO (https://scdah.sc.gov/historicpreservation/programs/tax-incentives/income-producing) and National Park Service (https://www.nps.gov/tps/index.htm) websites.
B. 10% State Historic Rehabilitation Tax Credit (25% option)
Owners of income-producing historic buildings in South Carolina who meet the requirements for the 20% Federal Historic Rehabilitation Tax Credit may also qualify for a state income tax credit. Taxpayers do not have to go through a separate state application process. Successfully completing the federal application process qualifies them for the state credit.
Authorizing legislation: SC Rehabilitation Incentives Act (Section 12-6-3535, SC Code of Laws, 1976, as amended).
Incentive: State income tax credit equal to 10% or 25% (25% credit capped at $1 million per historic structure, 10% credit not capped). In general, one dollar of tax credit earned reduces state income taxes owed by one dollar. Eligible use: Income-producing use.
For more information: (https://scdah.sc.gov/historicpreservation/programs/tax-incentives/income-producing).
C. 25% State Historic Rehabilitation Tax Credit Incentive: State income tax credit equal to 25% of allowable rehabilitation expenses. In general, each dollar of tax credit earned reduces state income taxes owed by one dollar. Allowable expenses include exterior rehabilitation work; historic structural systems repair, improving energy efficiency; repairs and installation of heating, airconditioning, plumbing, and electrical systems historic plaster restoration; architectural and engineering fees. Eligible buildings: Buildings must be listed in the National Register of Historic Places, individually eligible for the National Register, contribute to a National Register historic district, or be a historic outbuilding associated with a residence that is eligible for the program. Eligible use: Owner-occupied residence (not used in a trade or business, held for the production of income, or held for sale or disposition in the ordinary course of the taxpayer’s trade or business).
Expenditure requirements: $15,000 of allowable rehabilitation expenses within 36 months. (See above.) Review of work: The State Historic Preservation Office (SHPO) must review and approve plans before work begins. The SHPO must certify that the rehabilitation meets the Secretary of the Interior's Standards for Rehabilitation.
For more information: (https://scdah.sc.gov/historicpreservation/programs/tax-incentives/homeowner).
Authorizing legislation: SC Rehabilitation Incentives Act (Section 12-6-3535, SC Code of Laws, 1976, as amended).
D. Local Property Tax Special Assessment
Eligible buildings: Building must be designated historic by the local government. Local government must have adopted an ordinance to implement the property tax abatement. Buildings designated historic by the local government can include buildings listed individually in the National Register of Historic Places, contributing to a National Register historic district, or buildings that meet the local government's criteria for historic designation.
Incentive: The property is assessed on the prerehabilitation fair market value for the length of the special assessment (up to 20 years; length set by the local government).
Eligible use: Owner-occupied residence or incomeproducing building.
Review of work: A reviewing authority must approve that the proposed and completed rehabilitation work is appropriate for the historic building and the historic district in which it is located. The reviewing authority is the local board of architectural review, another designated entity with historic preservation expertise, or the State Historic Preservation Office (SHPO).
Expenditure requirements: Expenditures for rehabilitation must exceed the minimum expenditure set by the local government. This can range from 20% to 100% of the fair market value of the building.
Authorizing legislation: Sections 4-9-195 and 5-21-140, SC Code of Laws, 1976, as amended (often referred to as the "Bailey Bill"). You must check with your local government to determine if it has passed an ordinance. For more information: (https://scdah.sc.gov/historicpreservation/programs/tax-incentives/local-property-tax).
E. Federal Income Tax Incentives for Easement Donations
Incentive: Income and estate tax deductions. Eligible buildings: Buildings listed individually in the National Register of Historic Places or buildings that contribute to a National Register historic district. (Historically important land areas are also eligible.) Eligible use: Owner-occupied residence or incomeproducing building.
buildings, they pledge to preserve significant historic features and agree to obtain the easement holder's consent before making alterations.
Authorizing legislation: Tax Reform Act of 1986 (Internal Revenue Code Section 170(h)).
Expenditure requirements: Rehabilitation work is not required for this incentive. The incentive is based on the charitable contribution of a partial interest in a historic property (i.e. easement) to a government or nonprofit organization. When donors donate easements on historic
For more information: SHPO (https://scdah.sc.gov/historicpreservation/programs/tax-incentives/easements) and National Park Service (https://www.nps.gov/tps/index.htm) websites. Note: SC law does not mandate tax incentives for the donation of easements to preserve historic properties. However, the Conservation Easement Act of 1991 states: "For ad valorem tax purposes real property that is burdened by a conservation easement must be assessed and taxed on a basis that reflects the existence of the easement." (Section 27-8-70, SC Code of Laws, 1976, as amended).
Other Tax Incentives for Rehabilitation Projects
TION HOTLINE #11
25% SC Textile Revitalization Credit
improves, renovates, or redevelops an abandoned building is eligible for either a credit against local property taxes or a state income tax credit.
Federal Income Tax Credit for Low Income Housing
The SC Textiles Communities Revitalization Act (SC Code of Laws 12-65, 1976, as amended) provides tax incentives to encourage the rehabilitation, renovation and redevelopment of abandoned textile mill sites. A taxpayer who meets the requirements of the law and improves, renovates, or redevelops an abandoned textile mill building is eligible for either a credit against local property taxes or a state income tax credit.
25% Abandoned Buildings Revitalization Credit The SC Abandoned Buildings Revitalization Act (SC Code of Laws 12-67, SC Code of Laws, 1976, as amended) provides tax incentives to encourage the rehabilitation, renovation and redevelopment of abandoned buildings. A taxpayer who meets the requirements of the law and
The Tax Reform Act of 1986 (Internal Revenue Code Section 42) created an income tax credit for the acquisition, construction, or rehabilitation of low income housing. Developers can use the Low Income Housing Tax Credit (LIHTC) with the 20% Federal Historic Rehabilitation Tax Credit to rehabilitate historic buildings to provide rental units for low income residents. For more information, visit the website of the State Housing Finance and Development Authority at https://www.schousing.com/), which allocates the LIHTC in South Carolina.
Questions? SC Department of Archives & History / 8301 Parklane Road / Columbia, SC 29223 / 803-896-6174 (income-producing) 803-896-5638 (owner-occupied historic residence)
This publication does not provide legal, tax or accounting advice; the information provided is intended to be general in nature. You are strongly encouraged to consult your own professional tax, accounting and legal advisors on individual tax matters, or consult the SC Department of Revenue or the Internal Revenue Service (IRS). The SHPO is not responsible for the information or advice provided here as it may affect the specific tax consequences to any individual (including sole proprietor), corporate, partnership, estate or trust taxpayer, which will depend on many other facts and circumstances. The information is for the general benefit of persons interested in obtaining certifications that may allow them to qualify for federal and/or state historic income tax credits. Given the frequency of changes in federal and state tax laws, regulations and guidance, the information represents a good faith effort to reference controlling laws and regulations as accurately as possible.
The activity that is the subject of this fact sheet has been financed, in part, with federal funds from the National Park Service, Department of the Interior. However, the contents and opinions do not necessarily reflect the views or policies of the Department of the Interior, nor does the mention of trade names or commercial products constitute endorsement or recommendation by the Department of Interior. Under Title VI of the Civil Rights Act of 1964 and Section 504 of the Rehabilitation Act of 1973, the Department of the Interior prohibits discrimination on the basis of race, color, national origin, or handicap in its federally assisted programs. If you believe you have been discriminated against in any program, activity, or facility as described above, or if you desire further information, please write to: Office of Equal Opportunity, U.S. Department of the Interior, Washington, DC 20240.
|
Is Increasing Age Associated with Mortality in the Critically III Elderly
IYO Leong, D Y H Tai
ABSTRACT
Introduction: Age has been cited as a predictor of mortality in the intensive care unit (ICU) and suggested as a criterion for rationing resources. We investigated the association of age with both ICU mortality and hospital mortality.
Materials and Methods: Patients admitted in 1998 to our Medical ICU (MICU) were retrospectively analysed by stratifying them into four groups: the reference group (55 - 64 years), the young old (65 - 74 years), the old old (75 - 84 years) and the oldest old (more than 85 years). The statistical association of age with ICU mortality and total hospital mortality was determined whilst controlling for the APACHE II(M) score (APACHE II score modified to exclude points for age), the number of organ failures and the presence of a high risk admitting diagnosis.
Results: After controlling for disease severity, the ICU mortality and the total hospital mortality were not associated with age. The total hospital mortality was associated with the APACHE II(M) score (Odds ratio (OR), 1.08; 95% Confidence intervals (CI), 1.04 - 1.12), the number of organ failures (OR, 2.03; CI, 1.50 - 2.67) and the presence of a high risk diagnosis (OR, 3.50; CI 1.93 - 6.37). The ICU mortality was also associated with the APACHE II(M) score (OR, 1.07; CI, 1.03 - 1.11), the number of organ failures (OR, 1.63; CI, 1.26 - 2.09) and the presence of a high risk diagnosis (OR, 3.22; CI 1.81 - 5.76).
Conclusions: We did not find a statistically significant association between age and mortality. We recommend that age should not be used as a criterion for admission.
Keywords: aged, mortality, intensive care unit, prognosis, APACHE system
Singapore Med J 2002 Vol 43(1):033-036
INTRODUCTION
Singapore has a rapidly ageing population. The elderly, which forms 7% of the population today, would form 19% of the population by the year 2030 (1) . Expenditure for health will rise to 7% of the gross domestic product by 2030 (1) . As intensive care units (ICUs) are a scarce resource, it would be logical and ethical that only patients with a reasonable chance of recovery be admitted. Some workers have shown age to be an independent poor prognostic indicator (2-4) although others have refuted this (5-7) . Our objective in this study was to assess if increasing age in the elderly impacted on mortality in our Medical ICU (MICU).
PATIENTS AND METHODS
A retrospective study was conducted in the eightbedded MICU of Tan Tock Seng Hospital, Singapore. All patients above 55 admitted in 1998 were included. They were followed up till death or discharge/transfer from the hospital.
These patients were grouped into four age strata: the reference group (aged 55 to 64 years), the young old group (65 to 74 years), the old old group (75 to 84 years) and the oldest old group (85 years and older) (8) .
Demographic and illness characteristics were studied. Scores of established prognostication systems were obtained; this included the number of organ failures (based on criteria from Le Gall et al) (9) and the Acute Physiology and Chronic Health Evaluation (APACHE) II score (4) .
The APACHE II score was calculated without inclusion of points for age to obtain the APACHE II(M) score (5-6) . This latter score has been shown by Wu et al to be an independent predictor of mortality and a useful way of demonstrating disease severity without the influence of age (5) . The admitting diagnosis and the indication for MICU admission were classified based on the coefficients of severity in the APACHE II system to high risk diagnosis and low risk diagnosis (5,6) . Examples of high risk diagnosis would be cardiopulmonary arrest, septic shock and respiratory failure from pneumonia.
Department of Geriatric Medicine Tan Tock Seng Hospital 11 Jalan Tan Tock Seng Singapore 380433
IYO Leong, MBBS, MRCP (UK) Registrar
Department of General Medicine
DYH Tai, MRCP (UK), EDIC, FCCM, FCCP, FAMS Consultant
Correspondence to: Dr Ian Yi Onn Leong Tel: (65) 357 7851 Fax: (65) 357 7837 Email: ian_leong@ ttsh.gov.sg
Table I. Relation of total mortality to different risk factors.
Table II. Statistical association of age, APACHE II(M) score, diagnostic category and the number of organ failures to total hospital mortality.
* Odds ratios are for every point increase in the APACHE II(M) score.
**Odds ratios are for every organ failure above zero.
Table III.Statistical association of age, APACHE II(M) score, diagnostic category and the number of organ failures to ICU mortality.
* Odds ratios are for every point increase in the APACHE II(M) score.
**Odds ratios are for every organ failure above zero.
Examples of low risk diagnosis were respiratory failure from chronic obstructive lung disease, respiratory failure from acute pulmonary oedema and seizure disorders.
An organ failure was considered present if it occurred at any time during the MICU admission. The primary outcomes measured in this study were mortality in the intensive care unit (ICU mortality) and the hospital mortality (which included mortality in the ICU or in the general ward).
Results were considered statistically significant when p<0.05. The Chi-square test was used for analysis of the proportion of patients who had died during hospitalisation in relation to various factors: age, sex, APACHE II scores, number of organ failures and the diagnostic category.
Logistic regression was used to study the independent statistical association of age with mortality (ICU mortality and hospital mortality). Age and known predictive factors affecting mortality (the APACHE II(M) score, the number of organ failures, the diagnostic category) were entered in one step during the logistic regression analysis. Odds ratios and their 95% confidence intervals were reported.
RESULTS
A total of 282 patients aged 55 and above were recruited in the study. Sixty-one percent were males. There were 72 patients in the reference group, 121 young old patients, 65 years old old patients and 24 oldest old patients. The mean APACHE II score was 23.4 ± 8.8. The mean number of organ failures was 2.1 ± 1.3. Forty-five percent of patients had a high risk admitting diagnosis.
The hospital mortality for this group was 50.7%, of which 110 (39.0%) died in the MICU and 33 (11.7%) died in the general medical wards. Table I summarises the relation of hospital mortality to various risk factors. The difference in mortality between age groups was not significant (p = 0.08). The difference in mortality was statistically significant with increasing APACHE II scores (p<0.005), increasing number of organ failures (p<0.005) and a high risk diagnosis (p<0.005). None of the patients (n = 13) with five or more organ failures survived.
Using multivariate analysis, the statistical association of age, APACHE II(M) score, the number of organ failures, the presence of a high risk diagnosis with total hospital mortality are presented in Table II. Similar variables for ICU mortality are presented in Table III. The results indicate that age was not a significant predictor of ICU and total hospital mortalities, while other risk factors were.
DISCUSSION
In our study, increasing age in the elderly was not associated with hospital and MICU mortalities. Scores of illness severity (number of organ failures, APACHE II(M) score and a high risk diagnosis) were consistently predictive of a poor outcome. This is also one of the few papers, to our knowledge, that have studied the subset of the "oldest old" and shown there to be no increase in mortality for this age group when compared to a younger control group (10,11) .
Age forms an integral part of some widely accepted ICU prognostication systems like the APACHE systems and the Simplified Acute Physiology scores. However in our study, age was not associated with ICU mortality, although there is a trend towards so. This may be the result of a type II error; however post-hoc analysis suggests it would take five years of patient recruitment before there would be a significant difference. This brings to question whether the statistical difference so found would be meaningful clinically. Papers published on the relation of age to mortality in critical illness have not shown a clear predictive relation. In the APACHE II validation study by Knaus et al (4) , age was described as "a welldocumented risk factor of death from acute illness that is independent of the severity of disease." Campion et al has also found a relationship between age and poor outcome (2) . However, Wu et al demonstrated that age was not an independent risk factor for mortality when it was taken out from the APACHE II calculations (APACHE II(M)) (5) . Rockwood et al concluded in their study that only 5% of the variance in mortality could be accounted for by age (7) . Nicolas et al found that the effect of age diminished with increasing disease severity (21) . A reason for this discrepancy in previous studies may be an age-related difference in treatment intensity after controlling for disease severity. Castilo-Lorente et al reported that elderly patients with a more severe illness, as demonstrated by a higher APACHE II score, had a lower Therapeutic Intervention Scoring System score (TISS), suggesting that the treatment intensity was less (20) . Although this may not be the practice worldwide, it may be a reflection of the more "conservative" attitudes towards treating the elderly in certain ICUs.
Our paper did not show a statistically significant increased mortality in the oldest old. Firstly, it is known that the chronological age of a patient may not be equivalent to the biological age. The biological age would be the sum of age-related deterioration in organ function (primary ageing), the effects of medical illnesses and the effects of the environment on the organism (secondary ageing) (12) . The biological age cannot be quantified by any severity scoring scales routinely used in the intensive care setting. The premorbid functional capacity has been proposed as one possible measure of the biological age. Function as a predictor for outcome after ICU stay has been studied. Mayer-Oakes et al found that although patients 75 years and older were at increased risk of death, when this was coupled with functional capacity, the increased risk was only in patients with functional limitation rather than those with normal function (6) . Zaren et al found a similar age-function relationship (13) . McClish et al (14) and Roche et al (15) have also reported a similar lack of influence of age in predicting mortality once function has been put into the multivariate analysis. Thus far, the functional status scales used in studies of ICU mortality have been relatively simplistic, mostly a three- to five- point scale, which hardly reflects the complexity of a patient's functional status. Further studies should be done using more widely accepted functional scoring systems such as the Lawton scale for instrumental activities of living (16) and the Katz scale for the activities of daily living (17) . It is likely that patients who are 85 and above would be a more functionally independent group as selection bias would tend not to have selected this group for more aggressive treatment (18) .
Secondly, patients who are aged 85 years and above, who would be 10 years more than the local life expectancy may represent the biological elite rather than the frail elderly. They may therefore have a lower biological age than some younger patients, who may be approaching their expected biological demise.
Thirdly, as the number of patients above 85 were few (n = 24), there may have been a type II error in the analysis. Post-hoc analysis suggests that it would take five years of patient recruitment to show a statistically significant difference in mortality between those who are more than 85 and those who are less than that.
CONCLUSION
Our paper showed no statistical relationship between age and hospital mortality or ICU mortality. Instead, markers of illness severity, such as the APACHE II(M) score, a high risk diagnosis and the number of organ failures were better indicators for mortality. We would not advise using age as a criteria in gatekeeping ICU admissions.
REFERENCES
1. Ministry of Community Development Singapore. Report of the interministerial committee on the ageing population. Singapore, 1999; 29-34.
2. Campion EW, Mulley AG, Goldstein RL, Barnett GO, Thibault GE. Medical intensive care in the elderly: a study of current use, costs and outcomes. JAMA 1981; 246:2052-6.
3. Thibault GE, Mulley AG, Barnett GO, Goldstein RL, Reder VA, Sherman EL, et al. Medical intensive care: indications, interventions and outcomes. N Eng J Med 1980; 302:938-42.
4. Knaus WA, Draper EA, Wagner DP, Zimmerman JE. APACHE II: a severity of disease classification system. Crit Care Med 1985; 13:818-29.
5. Wu AW, Rubin HR, Rosen MJ. Are elderly people less responsive to intensive care? J Am Geriatr Soc 1990; 38:621-7.
6. Mayer-Oakes SA, Oye RK, Leake B. Predictors of mortality in older patients following medical intensive care: the importance of functional status. J Am Geriatr Soc 1991; 39:862-8.
7. Rockwood K, Noseworthy TW, Gibney RTN, Konopad E, Shustack A, Stollery D, et al. One-year outcome of elderly and young patients admitted to intensive care units. Crit Care Med 1993; 21: 687-91.
8. Kramer AM. Demography and health status. In: Jahnigen D, Schrier R, editors. Geriatric Medicine. Massachusetts: Blackwell Science, 1996: 18-41.
9. Le Gall JR, Brun-Buisson C, Trunet P, Latournerie J, Chantereau S, Rapin M, et al. Influence of age, previous health status, and severity of illness on outcome from intensive care. Crit Care Med 1982: 10:575-7.
10. Kass JE, Castriotta RJ, Malakoff F. Intensive care unit outcome in the very elderly. Crit Care Med 1992; 20:1666-71.
11. Chelluri L, Pinsky MR, Grevnik ANA. Outcome of intensive care of the "oldest old" critically ill patients. Crit Care Med 1992; 20:757-61.
12. Holloszy JO. The biology of ageing. Mayo Clin Proc 2000; 75(suppl): S3-S9.
13. Zaren B, Bergstrom R. Survival of intensive care I: Prognostic factors from the patient's medical history. Acta Anaesthesiol Scand 1988; 32:93-100.
14. McClish DK, Powell SH, Montenegro H, Nochomovitz M. The impact of age on utilisation of intensive care resources. J Am Geriatr Soc 1987; 35:983-8.
15. Roche VML, Kramer A, Hester E, Welsh C H. Long-term functional outcome after intensive care. J Am Geriatr Soc 1999; 47:18-24.
16. Lawton MP, Brody EM. Assessment of older people: self-maintaining and instrumental activities of daily living. Gerontologist 1969; 9:179-86.
17. Katz S, Ford A, Moskowitz R, et al. The index of ADL: a standardised measure of biological and psychosocial function. JAMA 1963; 185: 914-9.
18. Sprung CL, Geber D, Eildelman LA, Baras M, Pizov R, Nimrod A, et al. Evaluation of triage decisions for intensive care admission. Crit Care Med 1999; 27:1073-9.
19. Nicolas F, Le Gall JR, Alperovitch A, Loirat P, Villers D. Influence of patient's age on survival, level of therapy and length of stay in intensive care units. Intensive Care Med 1987; 13:9-13.
20. Castillo-Lorente E, Rivera-Fernandez R, Vazquez-Mata G. Limitation of therapeutic activity in elderly critically ill patients. Crit Care Med 1997; 25:1643-8.
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JOINT PUBLIC STATEMENT
19 August 2021
Index: MDE 22/4626/2021
Kenyan labour rights activist leaves Qatar after paying hefty fine for publishing "false news"
Malcolm Bidali, a Kenyan national, who was forcibly disappeared by Qatari authorities on 4 May and held in solitary confinement for a month, has finally been allowed to leave the country after paying a hefty fine for his human rights activism. The 28-year-old is a security guard, blogger and activist, who has been vocal about the plight of migrant workers like himself, and has written for a number of online platforms.
On 14 July, Qatar's Supreme Judiciary Council handed down a criminal order stating Malcolm Bidali had broadcast and published "false news with the intent of endangering the public system of the state" under Article 6 of the controversial cybercrime law arising purely from the exercise of his right to freedom of expression. The charges violate international human rights law and standards and particularly the right to freedom of expression, and as such the Qatari authorities should take immediate steps to have the unjust 'conviction' quashed. Malcolm was ordered to pay a fine of QR25,000 (approximately US $6,800), as well as having his personal mobile confiscated and his social media accounts on Twitter and Instagram (@NoahArticulates) through which "the crime was committed", blocked.
Throughout his detention Malcolm Bidali was denied access to legal counsel. The criminal order was handed down without him ever having been formally charged, brought before a court or even informed of the nature of the criminal charges he was facing, even after he obtained access to a lawyer following his conditional release on 31 May.
Although dated 14 July, Malcolm Bidali was only made aware of the criminal order on 27 July 2021, two weeks after it was issued, leaving only one day to appeal the decision. An organization working on the rights of migrant workers paid the fine and he was allowed to leave Qatar on 16 August.
Speaking after leaving, Malcolm Bidali said:
"I'm extremely fortunate to have gotten out (relatively) unscathed, given the selection of charges levelled against me. Outrageous charges, and an even more outrageous fine, for simply sharing our lived experiences and pointing out shortcomings of the specific entities responsible for workers' welfare, none of which translates to 'misinformation'.
"What I learnt from this was that a) free speech is expensive, and b) free speech is immensely effective. The latter is why so many activists and advocates do what they do, despite the very real risks involved. It's an honour for me to be counted as one.
"I'd like to thank all involved from the moment I was detained, all the way to my release."
Amnesty International, the Business and Human Rights Resource Centre, FairSquare, Human Rights Watch and Migrant-Rights.org, a coalition of civil society organizations that have advocated on Malcolm Bidali's behalf since his detention, welcomed the news of his departure from Qatar after almost four months, but remain concerned that his treatment stemmed solely from his legitimate human rights activism, and what this means for other migrant workers and freedom of expression more widely. The coalition calls on Qatar to urgently reform its judicial processes, including the cybercrime law that has been used against Malcolm.
The coalition said:
"While we are relieved that Malcolm Bidali's ordeal is over and he has finally been able to leave Qatar, he should never have been detained in the first place. It has been clear all along that he was being penalized for his human rights activism, and this unjust 'conviction' for spreading 'false information' only confirms that.
"Malcolm's abduction, forced disappearance, detention, interrogation and hefty fine – all carried out without due process – risk leaving a chilling legacy on freedom of expression in Qatar. If the government is serious about protecting human rights ahead of the 2022 World Cup, it must stop using abusive laws to criminalize those who dare to speak up in the country, including about the dire treatment of the very migrant workers making the tournament possible. The abuse and exploitation Malcolm wrote about through his blogs and social media accounts has been well documented by human rights and labour rights organizations over many years."
A SERIES OF DUE PROCESS VIOLATIONS
The detention and conviction of Malcolm Bidali was beset with a raft of due process violations from the moment of his arrest.
ENFORCED DISAPPEARANCE
On 4 May, Malcolm was taken at the request of the Qatari authorities from his labour accommodation to the state security office for questioning. He was then forcibly disappeared by state security services for almost a month. During this time, the authorities refused to reveal Malcolm's whereabouts to his family or explain why he had been detained, despite repeated requests for information from his mother and human rights and labour rights organizations. On 12 May, Qatari authorities acknowledged that Malcolm Bidali was in their custody, but would not disclose his location.
An enforced disappearance is a crime under international law, which, according to the UN Convention on Enforced Disappearances, occurs when any person is arrested or otherwise detained by agents of the state, "followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place(s) such a person outside the protection of the law."
SOLITARY CONFINEMENT AND LACK OF LEGAL REPRESENTATION
Following his enforced disappearance, the Qatari authorities held Malcolm Bidali in solitary confinement for 26 days, until his conditional release from custody on 31 May.
On 20 May, Qatari state security services permitted Malcolm to call his mother, following an intervention by the Kenyan ambassador in Qatar. In the 10-minute phone call, he assured his mother that he had not been harmed but was unable to tell her where he was being held or why. He said he was being held in solitary confinement for 23 hours a day and that he had no legal representation. He also told his mother that two officers were present as he made the call.
During his detention, Qatari interrogators repeatedly questioned Malcolm without the presence of a lawyer and made him sign multiple papers in Arabic, a language he does not understand, without written translation.
As a state party to the International Covenant on Civil and Political Rights (ICCPR), Qatar is obligated to ensure that everyone has the right to due process, and that no one is arbitrarily detained or subjected to torture or to cruel, inhuman or degrading treatment or punishment.
The right to due process includes the right of all suspects or accused to have access to and assistance of legal counsel from the outset of any criminal investigation and throughout questioning. The Special Rapporteur on torture has recommended that anyone who has been arrested "should be given access to legal counsel no later than 24 hours after the arrest".
Further, the ICCPR and the Convention Against Torture, to which Qatar is also a state party, prohibits the use in court of any evidence obtained through coercion, which includes, but is not limited to, torture and other cruel, inhuman or degrading treatment. Prolonged solitary confinement – as Malcolm Bidali was subjected to – can constitute torture. Under international law, as reflected in the UN Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules), solitary confinement can be used "only in exceptional cases as a last resort, for as short a time as possible". Further, as the UN special rapporteur on torture described in 2020, prolonged solitary confinement of more than 15 consecutive days is considered a form of torture, and is therefore also a form of prohibited coercion.
As such, Qatar should have excluded from court proceedings any "evidence" gathered while Malcolm Bidali was being held in solitary confinement.
TRUMPED-UP CHARGES AND A TRAVEL BAN
On 29 May, Qatar's Government Communications Office (GCO) released a statement to the press saying Malcolm Bidali had "been officially charged with offences related to payment received from a foreign agent for the creation and distribution of disinformation within the State of Qatar".
However, Malcolm was not aware of any charges brought against him and when he was conditionally released two days later on 31 May, told his mother he would be free to leave the country. Since then, he was prohibited from travelling and did not receive any official charge sheet. The GCO statement also said that Malcolm was "receiving legal advice and representation", although that was not the case until he left detention.
Indeed, when Malcolm was finally presented with official record of charges against him, they did not relate to receipt of payments from foreign agents, but rather to his online activism.
The right to due process also includes the right to be informed promptly after arrest, and in a language the accused understands, of the nature of charges faced. This is critical to the effective exercise of the right to challenge the lawfulness of detention. Once formal charges are brought, the accused has the right to be given sufficiently detailed information about the charges to enable them to prepare their defence. This includes information about the law under which they are charged and the alleged facts which form the basis of the accusation. According to UN Human Rights Council General Comment 32, "The right to be informed of the charge "promptly" requires that information be given as soon as the person concerned is formally charged with a criminal offence under domestic law, or the individual is publicly named as such."
SUPPRESSION OF FREEDOM OF EXPRESSION
On 28 July, Malcolm Bidali was presented with a criminal order from Qatar's Supreme Judiciary Council, however up until this point he had not been informed, whether formally or informally, of the charges or allegations against him. The order was dated 14 July but was not relayed to Malcolm or his lawyer until two weeks later, leaving him with just one day to appeal. It stated that after reviewing "evidence and all the papers and documents accompanied by it", it found Malcolm had "established and published false news with the intent of endangering the public system of the state" - "criminal" acts which it says are punishable under Article 6 of the Cyber Crime Prevention Law of 2014. Article 6 carries a maximum sentence of three years in prison and a fine of QAR 500,000 (approximately US $137,000) for anyone who "through an information network or an information technology technique sets up or runs a website to publish false news to threaten the safety and security of the State or its public order or domestic and foreign security." Anyone who "promotes, disseminates or publishes in any way such false news for the same purpose" can be punished with up to a year in prison and a fine of QAR 250,000 (US $68,000).
Multiple credible organizations have called on Qatar to repeal or significantly amend the cybercrime law under which Malcolm was charged. When the law was published in 2014, the New York-based Committee to Protect Journalists stated that, "this law is ostensibly to stop cybercrime but at least two articles [including Article 6] will severely restrict freedom of expression, which is not a crime". Amnesty International raised particular concerns about provisions on "false news" and said the law contained "broad and vaguely-worded provisions that fly in the face of international standards". The governments of France, Czechia, Sweden and Austria all called on Qatar in its 2019 Universal Periodic Review to make amendments to the law to bring it into compliance with international standards on free expression.
More recently, Qatar amended the penal code introducing vaguely worded provisions criminalizing a broad range of speech and publishing activities further restricting freedom of expression in Qatar. This is contrary to the ICCPR, which Qatar received international praise for joining in 2018, Article 19 of which guarantees the right to seek, receive and impart information and ideas.
BACKGROUND
After arriving in Qatar in 2018, Malcolm Bidali had been on the front line of the fight to reform Qatar's labour laws, including by writing about his experiences as a migrant worker in the country. Malcolm tweeted about labour abuses in Qatar using a pseudonym and a week before his arrest, gave a presentation to a large group of civil society organizations and trade unions about his experiences working in Qatar.
On 26 April2021, a Twitter user tagged Malcolm Bidali in a tweet containing a graphic which Human Rights Watch had used for an August 2020 report about wage abuse in Qatar. The tweet also contained what appeared to be a YouTube link to a Human Rights Watch publication. However, according to Amnesty International's analysis, the link led to a suspicious URL capable of recording the IP address and other data about the person who clicked on it. This is a social engineering tactic known as phishing, and may have been used to identify or locate Malcolm. State security forces detained him on 4 May, barely a week after the phishing attack.
Under the UN Declaration on Human Rights Defenders, governments must actively protect human rights defenders from harm. They have an obligation to put in place social and legal structures to create environments that are safe and supportive for human rights defenders to carry out their work.
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Efficient Verification of Multi-Property Designs (the benefit of wrong assumptions)
E. Goldberg, M. Güdemann, D. Kroening
Diffblue Ltd,
Oxford, UK
R. Mukherjee Cadence Design Systems, USA
Outline
* Motivation and problem definition
* "Just-assume" verification
* Experimental results
* Conclusions
2
Motivation
* Main bulk of research: single property verification
* A design can have thousands of properties
* A hard property conjunction of easier properties
Need for efficient methods of multiple-property verification
3
Problem Definition
* Given sequential circuit and safety properties P 1 ,...,P k
* if some P i fails design is incorrect
* check if every P i is true
* How many failed properties does one need to find?
* Straightforward approach:
* find every failed property P i
* a flaw: same bug can break many properties
* We take a more practical approach:
* find a (small) subset of failed properties identifying bugs
4
Joint and Separate Verification
* Joint verification: check aggregate property P := P 1 ... P k
* design is correct iff P holds
* Separate verification: prove each P i separately
* different properties can have quite different proofs
* P i is weaker than P it should be easier to prove
* inductive invariant for P i can be re-used when proving P m
* "Just-assume" verification: an instance of separate verification
* verify P i assuming that every P m , m ≠ i holds
* no justification of assumptions is necessary, hence the name
5
Background
* Using design structure to group similar properties
* G.Cabodi, S.Nocco (DATE 2011)
* P. Camurati, C. Loiacono, P. Pasini, D. Patti, S. Quer (DIFTS 2014)
* G. Cabodi, P.E. Camurati, C. Loiacono, M. Palena. P. Pasini, D. Patti, S. Quer (Int J Software Tool Tech Tran, 2017)
* On-line information on multi-property verification by ABC
* ABC implements joint verification
* HWMCC results, multi-track (up to 2013)
6
Outline
* Motivation and problem definition
* "Just-assume" verification
* Experimental results
* Conclusions
7
Proving Properties Globally and Locally
Proving P i globally: no CEX s 1 ,.., s n ,s n+1 where s 1 ,..,s n are P i -states and s n+1 is ~P i state
Proving P i locally: (w.r.t P := P 1 ... P k ) no CEX s 1 ,.., s n ,s n+1 where s 1 ,..,s n are P-states and s n+1 is ~P i state
Proving P i locally means assuming that every P m , m ≠ i holds
8
Relation Between Global and Local Proofs
s k is P i -state and ~P-state
If P i holds globally it does locally too
The opposite it not true
If P i holds locally it either
* holds globally OR
* every CEX breaking P i first breaks P m
s k breaks some property P m
9
Advantage of Verifying Properties Locally
* Proving P i locally is easier than P
* proving P : can one reach ~P-state by transitions from P-states ?
* proving P i locally : can one reach ~P i -state by transitions from P-states ?
* the ~P i -states is a subset of the ~P-states
* If P i holds locally, it is most likely not a bug-identifying property
* even if P i fails globally, some property P m fails before P i
* If P i fails locally, it is a bug-identifying property
* there is a CEX where P i is the first to fail
* If P fails at least one P i fails locally (and hence globally)
Example
```
module counter (enable, clk, request); parameter reset_val = 1 << 7; input enable, clk, request; reg [7:0] val ; wire reset ; initial val = 0; assign reset = (( val == reset_val ) && request); always @( posedge clk ) begin if ( enable ) begin if (reset ) val = 0; else val = val +1; end end endmodule
```
```
P 1 : assert property (request == 1); P 2 : assert property (val <= reset_val); Both P 1 and P 2 fail globally Consider proving P 1 and P 2 locally with respect to P: = P 1 P 2 P 1 fails locally (i.e. assuming P 2 is true) P holds locally (i.e. assuming P is true)
```
```
2 1
```
"Just-Assume" (Ja) Verification
* Check every property P i locally
* If every P i holds locally aggregate property P holds otherwise
* i.e. we assume that every P m , m ≠ i holds
* Properties failing locally identify bugs
* No justification of assumptions is required
* When proving P i locally
* assumption "P m holds" is useful even if it is wrong:
* we simply drop traces where P m fails before P i
Re-using Inductive Invariants
Let R be the set of reachable states
Proving P i by induction: Find strengthening G i such that P i G i is an inductive invariant
Both P i and G i over-approximate R
Let G ,..,G be strengthenings for P ,..,P
1 i 1 i Proving P i+1 proving G 1 .. G i P i+1
Outline
* Motivation and problem definition
* "Just-assume" verification
* Experimental results
* Conclusions
Implementation of Ja-Verification
* In experiments, we used IC3-db, a Diffblue version of IC3
* To prove P i locally, IC3-db treats P m , m ≠ i as constraints
* Ja-verification was implemented as a Perl script
* IC3-db is called in a loop to prove properties locally one by one
* Order in which properties are verified matters
* the reason is re-using of inductive invariants
* a rule of thumb: prove easy properties first
* re-use inductive invariants when proving harder properties
* We verified P 1 ,..,P k in the order they were listed
Implementation of Joint Verification
* We also used IC3-db to implement joint verification
* as a Perl script iteratively calling IC3-db
* Implementation is meant for solving all properties globally
* The script first calls IC3-db to check P := P 1 ... P k
* If P holds, all properties P i are true otherwise
* false properties are removed, remaining properties are conjoined
* We cross-checked results of IC3-db by ABC (UC, Berkeley)
* Joint verification is a natural mode of operation for ABC
Comparison of Joint and Ja-verification
* Joint verification is less robust than separate verification
* Complexity of proving P := P 1 ... P k blows up
* if a few properties P i are too hard to solve
* properties P i depend on different local behaviors
* This problem can be solved by clustering similar properties
* we want to make a semantic comparison
* We used HWMCC-13 benchmarks
* correct designs: 8 designs solved by joint verification without clustering (under 1000 properties each)
* faulty designs: 8 designs where at least one property was proved false
Designs with Failed Properties
| #lat- ches | #pro- per- ties | Joint verification | | | | | |
|---|---|---|---|---|---|---|---|
| | | ABC | | IC3-db | | | |
| | | false (tr) | time | false (tr) | time | time limit | false (tr) |
| 84,925 | 124 | 1 (0) | 10 h | 1 (0) | memout | 0.3 h | 1 (123)* |
| 2,179 | 35 | 1 (0) | 10 h | 1 (0) | 10 h | 0.5 h | 1 (34)* |
| 1,790 | 80 | 25 (0) | 10 h | 30(0) | 10 h | 0.3 h | 1 (72) |
| 7,415 | 3 | 2 (0) | 10 h | 2 (0) | 10 h | 0.3 h | 2 (1)* |
| 3,012 | 33 | 6 (0) | 10 h | 10 (0) | 10 h | 0.3 h | 2 (31)* |
| 762 | 14 | 13 (1)* | 25 s | 13 (1)* | 225 s | 0.3 h | 1 (13)* |
| 1,658 | 61 | 26 (35)* | 2 h | 26 (35)* | 260 s | 0.3 h | 20 (41)* |
| 5,606 | 897 | 399 (0) | 10 h | 395 (0) | 10h | 0.3 h | 3 (894)* |
20 March 2018
Efficient verification of multi-property designs
Correct Designs
| Name | #lat- ches | #pro- per- ties | Joint verification | | Ja-verification by IC3-db | | |
|---|---|---|---|---|---|---|---|
| | | | ABC time | IC3-db time | time limit | #un- solved | total time |
| 6s124 | 6,748 | 630 | > 10 h | 2.9 h | 0.8 h | 0 | 1.9 h |
| 6s135 | 2,307 | 340 | 123 s | 335 s | 0.8 h | 0 | 746 s |
| 6s139 | 16,230 | 120 | 4.7 h | 1.7 h | 2.8 h | 2 | 6.5 h |
| 6s256 | 3,141 | 5 | > 10h | 602 s | 2.8 h | 1 | 2.9 h |
| bob12m09 | 285 | 85 | 1,692 s | 930 s | 0.8 h | 0 | 784 s |
| 6s407 | 11,379 | 371 | 1.3 h | 3.4 h | 0.8 h | 0 | 2,077 s |
| 6s273 | 15,544 | 42 | 1.8 s | 325 s | 0.8 h | 0 | 290 s |
| 6s275 | 3,196 | 673 | 334 s | 1,154 s | 0.8 h | 0 | 1,611 s |
20 March 2018
Conclusions
* We introduce "Just-Assume" (Ja) verification
* it is a special case of separate verification
* We give a semantic version of Ja-verification
* a structure-aware method can be built on top of it
* In Ja-verification, assumptions do not need justification
* CEXs are built only for failed properties identifying bugs
* this can give big performance gains (finding CEXs can be very hard)
* Joint and Ja-verification are competitive on correct designs
|
OMB No. 7243923646518 edited by
1
OMB No. 7243923646518
Corporate Finance Essentials 7th Edition Solutions
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Corporate Finance Essentials 7th Edition Solutions
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2023-02-21
|
Open Access International Journal of Endocrinology and Diabetes Volume 6 Issue 2 ISSN: 2694-3875
Post-prandial glucose changes in mild diabetic patient with clinical effect for EquMet
(vildagliptin and metformin)
Arakawa T a , Ogawa H a , Bando H a,b , Nagahiro S a , Nakanishi M a , Watanabe W a a Yoshinogawa Hospital, Tokushima, Japan
bMedical Research/ Tokushima University, Tokushima, Japan
Article Info
Abstract
Article History:
Received: 7 July, 2023
Accepted: 13 July, 2023
Published: 16 July, 2023
*Corresponding author: Bando H, Tokushima University/Medical Research, Nakashowa 1-61,
Tokushima 770-0943 Japan;
Tel No: +81-90-3187-2485;
DOI: https://doi.org/10.36266/IJED/153
This case is 74-year-old male with mild type 2 diabetes (T2D). HbA1c level kept 6.5-6.9% for recent several years, and took no oral hypoglycemic agents (OHAs). He likes to take delicious food of carbohydrate, and his post-prandial blood glucose levels usually increased to more than 200 mg/dL in 3 meals a day. He showed remarkable arterial stiffness, which may be from legacy effect of glucose variability. Providing vildagliptin and metformin (EquMet) has brought diabetic improvement for HbA1c 7.3% to 6.1%. Meal tolerance test (MTT) showed post-prandial hyperglycemia for 3 hours, in which prolonged glucose elevation was found after lunch.
Keywords: legacy effect, arterial stiffness, vildagliptin and metformin (EquMet), post-prandial hyperglycaemia, Vildagliptin Efficacy in combination with metfoRmIn For earlY treatment of type 2 diabetes (VERIFY)
Copyright: © 2023 Bando H, et al. This is an open-access article distributed under the terms of the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.
Introduction
Arteriosclerosis has been crucial problem in the world, which includes several pathophysiology of Metabolic Syndrome (MetS), and type 2 diabetes (T2D) [1,2]. The purpose for treating T2D would be the prevention of macro-angiopathy and microangiopathy [3]. In order to maximize beneficial long-term protection, clinical importance of earlier and more intensive therapy has been observed for newly diagnosed T2D patient [4]. Glycemic legacy effect on clinical outcomes for T2D patient seems to be predominantly due to previous HbA1c levels that showed greater impact than recent HbA1c levels [5]. For legacy effects, several observational cohort studies and other major diabetes trials have been found. Long-term follow-up method for established diabetes cases would not be supportive. Among them, legacy effect has been found in macrovascular events as well as microvascular complications [6].
For novel treatment for diabetes, several novel oral hypoglycemic agents (OHAs) have been introduced to medical practice [7]. However, actual glycemic control in T2D has been suboptimal situation across the world. As to diabetic complications, macroangiopathy and microangiopathy have been crucial problem for long uncontrolled level of HbA1c. Consequently, early attainment of satisfactory glycemic control would be a legacy effect for T2D patient in each later life. Combination of cardio-renal-gluco-centric therapeutic strategies will develop complementary efficacy in the reduction results of trajectory for renal-cardio-related diseases [8].
metformin has been the first-line agent for T2D so far [10]. From these points of view, international large studies were investigated. The Vildagliptin Efficacy in combination with metfoRmIn For earlY treatment of T2D (VERIFY) studies were performed, which included vildagliptin as dipeptidyl peptidase 4-inhibitor (DPP4-i) and metformin as biguanide [11]. The combined agents of vildagliptin/metformin would be known as EquMet, which has been widely used for medical practice [12]. Authors et al. have continued diabetic research for long on various OHAs including EquMet [13]. In addition, the relationship of Equmet and lipids were reported [14]. We recently experienced a T2D case with impressive characteristics. Its general progress and related perspective will be described in this report.
Presentation of cases
Medical History
This case has been 74-year-old male patient with T2D with mild degree for 11 years. When he was 63 years old, his HbA1c was proved to be slightly higher than the standard level. He sometimes checked blood glucose before meal and after meal. The HbA1c values are summarized (Table 1, upper), in which HbA1c was 6.3-6.5% during 2012-2016, and 6.6-6.9% until 2019, and more than 7.0% after 2020. Thus, HbA1c values are gradually increased.
Concerning the treatment for T2D, actual practice for T2D guideline has been somewhat different in United States, European countries, and Asian countries [9]. However,
Concerning his daily meal habit, he likes to eat delicious dish with carbohydrate. In 2023, he was advised to refrain from taking much carbohydrate, and to start oral hypoglycemic agents (OHAs) for better glucose control. The diabetologist and pharmacist in charge have explained the importance of lowering
Pubtexto Publishers | www.pubtexto.com 1 Int J Endocrinol Diabetes
DOI: https://doi.org/10.36266/IJED/153
daily profile of blood glucose and HbA1c levels. He has begun the intake of combination agents of vilidaglipti/metformin (EquMet LD), and after that HbA1c was acutely decreased to almost normal ranges (Table 1. lower).
arteriosclerosis for brachial-ankle pulse wave velocity (baPWV). The result of baPWV was more than 2100 cm/sec bilaterally. It was more than +2SD above the standard level [15]. Consequently, it is situated at the higher risk category.
Table 1: Changes in HbA1c.
| | Year | | Month | | HbA1c | OHAs |
|---|---|---|---|---|---|---|
| 2012 | | | | 6.3 | | |
| 2013 | | | | 6.3 | | |
| 2014 | | | | 6.5 | | |
| 2015 | | | | 6.5 | | |
| 2016 | | | | 6.5 | | |
| 2017 | | | | 6.8 | | |
| 2018 | | | | 6.6 | | |
| 2019 | | | | 6.9 | | |
| 2020 | | | | 7 | | |
| 2021 | | | | 7.5 | | |
| 2022 | | | | 7.2 | | |
| 2023 | | Jan | | 7.3 | | |
| | | Feb | | 7.3 | | |
| | | Mar | | 7.2 | | |
| | | Apr | | 6.8 | | |
| | | May | | 6.5 | | |
| | | Jun | | 6.2 | | |
| | | Jul | | 6.1 | | |
Several exams
This case has received laboratory exam in Feb 2022 (Table 2). As a result, TG, HDL-C and LDL-C were within normal ranges. HbA1c showed 7.3% that reveals in diabetes range. Otherwise, it showed unremarkable data concerning liver, nutrition, renal and complete blood count (CBC).
Table 2: Laboratory results for several years.
| | | | | | | | fasting | | |
|---|---|---|---|---|---|---|---|---|---|
| physique | | BMI | | 23.2 | Diabetes | | | | 144 |
| | | | | | | | gluc | | |
| | obesity | | +5.6 | | | HbA1c | | 7.3 | |
| | abd circum | | 85.6 | | | urinary gluc | | - | |
| Lipids | T-Cho | | 179 | | | amylase | | 82 | |
| | TG | | 95 | | Renal | uric acid | | 6.7 | |
| | HDL-C | | 70 | | | creatinine | | 0.96 | |
| | LDL-C | | 80 | | | BUN | | 13 | |
| liver | AST | | 20 | | | eGFR | | 59.2 | |
| | ALT | | 16 | | CBC | RBC | | 438 | |
| | GGT | | 23 | | | HbA1c | | 14.1 | |
| | ALP | | 107 | | | Ht | | 43,7 | |
| | LDH | | 139 | | | MCV | | 99.8 | |
| | ChE | | 241 | | | MCH | | 32.2 | |
| | T-Bil | | 1.4 | | | MCHC | | 32.3 | |
| | T- Protein | | 7.4 | | | WBC | | 44 | |
| nutrition | | | | | | | | | |
| | Albumin | | 4.1 | | | Plts | | 18.5 | |
| | | | | | Others | | | | |
His electrocardiogram (ECG) showed negative with no remarkable ST-T changes. He received the exam of
This case has sometimes tried to check his pre-prandial and post-prandial blood glucose during 2013 to 2021. It was meal tolerance test (MTT). His data included from 0, 1, 2, 3 hours for breakfast, lunch and supper. Several obtained data for three meals are shown in Figure 1. Pre-prandial blood glucose ranges from 93 to 148 mg/dL. The peak level of post-prandial blood glucose ranges from 200 to 240 mg/dL. The characteristic point includes that 3-hr post-prandial level after breakfast tends to be rather lower, whereas it tends to be increased in lunch and supper.
The actual meals for these are not the same content but different. Among them, three typical meals can be presented in Figure 2a, 2b and 2c. Total carbohydrate amount can be calculated as 0.5g, 0.9g and 27.8g, respectively.
Figure 2: Examples of meals including carbohydrate amount
Fig 2a includes meat steak, vegetable salad, and consomme soup, in which carbohydrate amount is 0.1g, 0.1g and 0.3g for 130mL, respectively. It has only 0.5g of carbohydrate in total. Fig 2b has 2 pieces of meat ham, and one egg, that has 0.8g and 0.1g, respectively with totally 0.9g of carbohydrate. Fig 2c is sandwich of own making. It includes plain bread 22g, half egg 0.05g, tomato 0.55g, meat ham 0.8g, vegetable 0.1g and yogurt (100mL) 4.3g with totally 27.8g of carbohydrate.
Ethical consideration
This case complies with the ethical guidelines of the Declaration of Helsinki. Moreover, some commentaries are
DOI:
presented for the standard regulation for personal information. Current principle has been for ethical rule about medical practice and research. Certain medical problem of human is present. Its guideline has been on the regulation of Japanese government, which are Ministry of Health, Labor and Welfare and Ministry of Education, Culture, Sports, Science Technology. The authors and co-researchers have our ethical committee about this case. It is present in Yoshinogawa hospital, Tokushima, Japan. The committee has some professional members, including the director of the hospital, physician, pharmacist, head nurse, nutritionist, medical laboratory staff and legal professional. Our team have discussed for satisfactory situation concerning current case, and agreed with general protocol. The required informed consent was given from the case for document paper.
all-cause mortality (ACM) and myocardial infarction (MI) for T2D (n=3802) [5]. HR for ACM with 1% higher HbA1c was 1.08, 1.18, and 1.36 for 5, 10 and 20 years, respectively. Similarly, HR for MI was 1.13 for 5 years, and 1.31 for 20 years. As to HbA1c reduction in early stage at diagnosis, ACM risk was decreased 18.8% for 10-15 years after. However, HbA1c reduction was only 2.7% (one-seventh) when HbA1c was decreased 10 years later after the diagnosis.
Discussion
The characteristics of this case can be found in some points, which are i) certain amount of carbohydrates have been usually taken, ii) mild diabetes has kept for years and arterial stiffness was remarkable, iii) EquMet showed diabetic improvement for short period. Concerning these aspects, some perspectives are discussed in this order.
Firstly, the basic concept of nutritional therapy would be crucial. The recommendation has been changed and prevalent from calorie restriction (CR) to low carbohydrate diet (LCD) [16]. Accumulated evidence showed the useful and predominance of LCD for actual clinical practice [17]. When carbohydrate is taken per os for T2D, blood glucose elevates 3 mg per 1g of carbo 1g [18].
Secondly, WHO and ADA announced that the response for 75gOGTT shows four categories, which are normal, impaired fasting glucose (IFG), impaired glucose tolerance (IGT), and diabetes patterns [19]. IGT means the case who has postprandial hyperglycemia. Such patients tend to develop macroangiopathy rather than microangiopathy [20]. This case has kept higher HbA1c for years, and seemed to have postprandial hyperglycemia during his daily meal habit. He showed normal value of ankle brachial index (ABI), but remarkably increased baPWV. Its normal range is less than 1400 cm/sec, and cut-off level of developing arteriosclerotic cardiovascular accident (ASCVD) is less than 1800 cm/sec. He has currently showed no apparent macroangiopathy or microangiopathy, but post-prandial hyperglycemia may develop aggravation of angiopathy in the future.
Legacy effect has been known for early glycemic control to diabetic angiopathy. Cohort study for diabetic complication was conducted (n=34,737) [21]. Compared with the group 1 (HbA1c <6.5%), hazard ratio (HR) of diabetic complication was 1.204 for group 2 (HbA1c 6.5-6.9%), and HR of death was 1.290 for group 3 (HbA1c 7.0-7.9%). Consequently, legacy effect was observed, where keeping HbA1c ≥6.5% for the first year will cause worse outcomes. Another legacy effect was reported for
For legacy effect, recent report is found from DCCT/ EDIC research group. EDIC means Epidemiology of Diabetes Interventions and Complications (EDIC) study, in which intensive treatment was compared for earlier 10 years vs. later 10 years [22]. Then, impressive results were found. A hypothetical case (A) is supposed as HbA1c 7% for 1-10 years, and 9% for 11-20 years. Another case (B) is supposed as HbA1c 9% for 1-10 years, and 7% for 11-20 years. When compared both A and B, case A showed 33% reduction of CVD risk, and 52% reduction of eGFR rather than case B.
Thirdly, the beneficial aspect of early combined treatment would be found in the group of earlier and later onset of T2D, from the result of sub-analysis of the VERIFY [23]. The risk reduction was observed for macrovascular events for the combination therapy of vildagliptin/metformin, where HR was 0.71 [11]. Glycemic durability was studied for comparison with early EquMet vs. metformin monotherapy [23]. The patients have two groups of young-on set (YOD) and late-onset (LOD) after 40 years old, which is included for VERIFY trials. The detail analyses were conducted by statistical analysis plan (SAP) method in VERIFY study [24]. The protocol included the end point time until treatment failure (TF) of HbA1c 7.0 %<. As a result, early combination decreased the TF risk for 48% vs. 46%, in YOD vs. LOD, respectively (p<0.0001). Consequently, treatment-naïve YOD (6.5-7.5%) showed improvement of glycemic target with early durability and also delayed aggravation of glycemic variability.
From economic point of view, T2D brings higher risk of developing ASCVD that is accompanied by mortality, morbidity, and health care involvement. Lots of T2D cases (n=80,305) were studied for economic expenses, including ASCVD, PAD, MI and CVD [25]. Annual expenses were compared with cases with T2D/ASCVD vs. cases with T2D without ASCVD (control). As a result, annual costs per case showed higher in cases with ASCVD, in which 2.7x for PAD, previous CVD x2.2, ASCVD 1.9x and previous MI x1.7. These results suggested the required assessment for ASCVD risk and implementation for T2D therapy in the healthcare system.
In this article, some limitation may exist. Current case showed several factors for mild diabetes, intake of carbohydrate, remarkable arterial stiffness, clinical efficacy of EquMet, and others. Certain mutual influences would be involved in the pathophysiology of the case.
In summary, 74-year-old male showed impressive progress for diabetes, lipid and arteriosclerosis. Future follow-up with careful attention will be required for the adequate management
DOI:
with protecting macroangiopathy. This report becomes hopefully useful reference for clinical research and practice.
https://doi.org/10.36266/IJED/153
Clin Image. 2023; 5: 197.
References
1. Schillinger D, Bullock A, Powell C, Fukagawa NK, Greenlee MC, Towne J, et al. The National Clinical Care Commission Report to Congress: Leveraging Federal Policies and Programs for Population-Level Diabetes Prevention and Control: Recommendations From the National Clinical Care Commission. Diabetes Care. 2023; 46: e24-e38.
2. ElSayed NA, Aleppo G, Aroda VR, Bannuru RR, Brown FM, Bruemmer D, et al. 1. Improving Care and Promoting Health in Populations: Standards of Care in Diabetes-2023. Diabetes Care. 2023; 46: S10-S18.
3. Saleem SM, Bhattacharya S, Deshpande N. Non-communicable diseases, type 2 diabetes, and influence of front of package nutrition labels on consumer's behaviour: Reformulations and future scope. Diabetes Metab Syndr. 2022: 102422.
4. Laiteerapong N, Ham SA, Gao Y, Moffet HH, Liu JY, Huang ES, Karter AJ. The Legacy Effect in Type 2 Diabetes: Impact of Early Glycemic Control on Future Complications (The Diabetes & Aging Study). Diabetes Care. 2019; 42: 416-426.
5. Lind M, Imberg H, Coleman RL, Nerman O, Holman RR. Historical HbA1c Values May Explain the Type 2 Diabetes Legacy Effect: UKPDS 88. Diabetes Care. 2021; 44: 2231–7.
6. Folz R, Laiteerapong N. The legacy effect in diabetes: are there long-term benefits? Diabetologia. 2021; 64: 2131-2137.
7. ElSayed NA, Aleppo G, Aroda VR, Bannuru RR, Brown FM, Bruemmer D, et al. 9. Pharmacologic Approaches to Glycemic Treatment: Standards of Care in Diabetes-2023. Diabetes Care. 2023; 46: S140-S157.
8. Chan SP, Lim LL, Chan JCN, Matthews DR. Adjusting the Use of Glucose-Lowering Agents in the Real-World Clinical Management of People with Type 2 Diabetes: A Narrative Review. Diabetes Ther. 2023; 14: 823-838.
9. Nolan JJ, Kahkoska AR, Semnani-Azad Z, Hivert MF, Ji L, Mohan V, et al. ADA/EASD Precision Medicine in Diabetes Initiative: An International Perspective and Future Vision for Precision Medicine in Diabetes. Diabetes Care. 2022; 45: 261266.
10. Verdecchia P, Murdolo G, Coiro S, Santucci A, Notaristefano F, Angeli F, Cavallini C. Therapy of Type 2 diabetes: more gliflozines and less metformin? Eur Heart J Suppl. 2023; 25: B171-B176.
11. Matthews DR, Paldanius PM, Proot P, Chiang Y, Stumvoll M, Del Prato S, et al. Glycaemic durability of an early combination therapy with vildagliptin and metformin versus sequential metformin monotherapy in newly diagnosed type 2 diabetes (VERIFY): a 5-year, multicentre, randomised, double-blind trial. Lancet. 2019; 394: 1519-1529.
12. Bando H, Yamashita H, Kato Y, Kawata T, Kato Y, Kanagawa H. Seasonal Variation of Glucose Variability in Rather Elderly Patients with Type 2 Diabetes (T2D) Treated by Vildagliptin and Metformin (EquMet). Asp Biomed Clin Case Rep. 2022; 5: 146151.
13. Ogura K, Bando H, Kato Y, Yamashita Hand Kato Y. A Case of Intraductal Papillary Mucinous Neoplasm (IPMN) Analyzed by Curved Planar Reconstruction (CPR) With Treatment of Twymeeg and Equmet for Type 2 Diabetes (T2D). Int J Case Rep
14. Bando M, Tanaka N, Imamura Y, Yoneda S, Yamada K, Yuasa Ma and Bando H. Remarkable Response of Vildagliptin/Metformin (EquMet) for Diabetic Patient with Recovered Ratio of Eicosapentaenoic Acid/ Arachidonic Acid (EPA/AA) by EPA Intake. Int J Case Rep Clin Image. 2023; 5: 205.
15. Munakata M. Brachial-ankle pulse wave velocity in the measurement of arterial stiffness: recent evidence and clinical applications. Curr Hypertens Rev. 2014; 10: 49-57.
16. Pavlidou E, Papadopoulou SK, Fasoulas A, Mantzorou M, Giaginis C. Clinical Evidence of Low-Carbohydrate Diets against Obesity and Diabetes Mellitus. Metabolites. 2023; 13: 240.
17. Hansen CD, Gram-Kampmann EM, Hansen JK, Hugger MB, Madsen BS, Jensen JM, et al. Effect of Calorie-Unrestricted LowCarbohydrate, High-Fat Diet Versus High-Carbohydrate, LowFat Diet on Type 2 Diabetes and Nonalcoholic Fatty Liver Disease : A Randomized Controlled Trial. Ann Intern Med. 2023; 176: 10-21.
18. Bando H. Effective proposal of food pyramid for understanding of low carbohydrate diet (LCD). Case Rep Rev Open Access. 2020; 1: 101.
19. Yip WCY, Sequeira IR, Plank LD, Poppitt SD. Prevalence of PreDiabetes across Ethnicities: A Review of Impaired Fasting Glucose (IFG) and Impaired Glucose Tolerance (IGT) for Classification of Dysglycaemia. Nutrients. 2017; 9: 1273.
20. Grundy SM. Pre-diabetes, metabolic syndrome, and cardiovascular risk. J Am Coll Cardiol. 2012; 59: 635-43.
21. Laiteerapong N, Ham SA, Gao Y, Moffet HH, Liu JY, Huang ES, Karter AJ. The Legacy Effect in Type 2 Diabetes: Impact of Early Glycemic Control on Future Complications (The Diabetes & Aging Study). Diabetes Care. 2019; 42: 416-426.
22. Chan JCN, Paldánius PM, Mathieu C, Stumvoll M, Matthews DR, Del Prato S. Early combination therapy delayed treatment escalation in newly diagnosed young-onset type 2 diabetes: A subanalysis of the VERIFY study. Diabetes Obes Metab. 2021; 23: 245-251.
23. Matthews DR, Paldanius PM, Stumvoll M, et al. A pre-specified statistical analysis plan for the VERIFY study: Vildagliptin efficacy in combination with metformin for early treatment of T2DM. Diabetes. Obes Metab. 2019; 21: 2240–2247.
24. Steen Carlsson K, Faurby M, Nilsson K, Wolden ML. Atherosclerotic Cardiovascular Disease in Type 2 Diabetes: A Retrospective, Observational Study of Economic and Clinical Burden in Sweden. Diabetes Ther. 2023; 14: 1357-1372.
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Cisco Ccna Packet Tracer Labs Answers Chuguoore
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Cisco CCNA Packet Tracer Ultimate Labs Cisco Press Working at a Small-to-Medium Business or ISP CCNA Discovery Learning Guide Working at a Smallto-Medium Business or ISP, CCNA Discovery Learning Guide is the official supplemental textbook for the Working at a Small-to-Medium Business or ISP course in the Cisco® Networking Academy® CCNA® Discovery curriculum version 4.1. The course, the second of four in the new curriculum, teaches networking concepts by applying them to a type of network you might encounter on the job in a small-to-medium business or ISP. After successfully completing the first two courses in the CCNA Discovery curriculum, you can choose to complete the CCENT® (Cisco Certified Entry Network Technician) certification exam, which would certify that you have developed the practical skills required for entry-level networking support positions and have an aptitude and competence for working with Cisco routers, switches, and Cisco IOS® Software. The Learning Guide, written and edited by instructors, is designed as a portable desk reference to use anytime, anywhere to reinforce the material from the course and organize your time. In addition, the book includes expanded coverage of CCENT/CCNA exam topics. The book's features help you focus on important concepts to succeed in this course: Chapter Objectives—Review core concepts by answering the focus questions listed at the beginning of each chapter. Key Terms—Refer to the lists of networking vocabulary introduced and highlighted in context in each chapter. The Glossary defines each key term. Summary of Activities and Labs—Maximize your study time with this complete list of all associated exercises at the end of each chapter. Check Your Understanding—Evaluate your readiness with the end-of-chapter questions that match the style of questions you see in the online course quizzes. The answer key explains each answer. Challenge Questions and Activities—Apply a deeper understanding of the concepts with these challenging end-of-chapter questions and activities. The answer key explains each answer. Hands-on Labs—Master the practical, hands-on skills of the course by performing all the tasks in the course labs and additional challenge labs included in Part II of the Learning Guide. Allan Reid is the curriculum lead for CCNA and a CCNA and CCNP® instructor at the Centennial College CATC in Toronto, Canada. Jim Lorenz is an instructor and curriculum developer for the Cisco Networking Academy. How To—Look for this icon
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to study the steps you need to learn to perform certain tasks. Interactive Activities—Reinforce your understanding of topics with more than 30 different exercises from the online course identified through-out the book with this icon. The files for these activities are on the accompanying CDROM. Packet Tracer Activities— Explore and visualize networking concepts using Packet Tracer exercises interspersed throughout most chapters. The files for these activities are on the accompanying CD-ROM. Packet Tracer v4.1 software developed by Cisco is available separately. Hands-on Labs—Master the practical, hands-on skills of the course by working through all 42 course labs and 3 additional labs included in this book. The labs are an integral part of the CCNA Discovery curriculum; review the core text and the lab material to prepare for all your exams. Companion CD-ROM **See instructions within the ebook on how to get access to the files from the CD-ROM that accompanies this print book.** The CD-ROM includes Interactive Activities Packet Tracer Activity Files CCENT Study Guides IT Career Information Taking Notes Lifelong Learning CCNA Exploration Labs and Study Guide Cisco Press
Trust the best-selling Official Cert Guide series from Cisco Press to help you learn, prepare, and practice for exam success. They are built with the objective of providing assessment, review, and
practice to help ensure you are fully prepared for your certification exam. This book, combined with CCNA 200-301 Official Cert Guide, Volume 1, covers all the exam topics on the CCNA 200-301 exam. · Master Cisco CCNA 200-301 exam topics · Assess your knowledge with chapter-opening quizzes · Review key concepts with exam preparation tasks This is the eBook edition of CCNA 200-301 Official Cert Guide, Volume 2. This eBook does not include access to the Pearson Test Prep practice exams that comes with the print edition. CCNA 200-301 Official Cert Guide, Volume 2 presents you with an organized test preparation routine through the use of proven series elements and techniques. "Do I Know This Already?" quizzes open each chapter and enable you to decide how much time you need to spend on each section. Exam topic lists make referencing easy. Chapter-ending Exam Preparation Tasks help you drill on key concepts you must know thoroughly. CCNA 200-301 Official Cert Guide, Volume 2 from Cisco Press enables you to succeed on the exam the first time and is the only self-study resource approved by Cisco. Best-selling author Wendell Odom shares preparation hints and test-taking tips, helping you identify areas of weakness and improve both your conceptual knowledge and hands-on skills. This complete study package includes · A test-preparation routine proven to help you pass the exams · Do I Know This Already? quizzes, which enable you to decide how much time you need to spend on each section · Chapterending Key Topic tables, which help you drill on key concepts you must know thoroughly · The powerful Pearson Test Prep Practice Test software, complete with hundreds of well-reviewed, exam-realistic questions, customization options, and detailed performance reports · A free copy of the CCNA 200-301 Network Simulator, Volume 2 Lite software, complete with meaningful lab exercises that help you hone your hands-on skills with the command-line interface for routers and switches · Links to a series of hands-on config labs developed by the author · Online interactive practice exercises that help you enhance your knowledge · More than 50 minutes of video mentoring from the author · An online interactive Flash Cards application to help you drill on Key Terms by chapter · A final preparation chapter, which guides you through tools and resources to help you craft your review and test-taking strategies · Study plan suggestions and templates to help you organize and optimize your study time Well regarded for its level of detail, study plans, assessment features, hands-on labs, and challenging review questions and exercises, this official study guide helps you master the concepts and techniques that ensure your exam success. CCNA 200-301 Official Cert Guide, Volume 2, combined with CCNA 200-301 Official Cert Guide, Volume 1, walk you through all the exam topics found in the Cisco 200-301 exam. Topics covered in Volume 2 include · IP access control lists · Security services · IP services · Network architecture · Network automation Companion Website: Companion Website: The companion website contains CCNA Network Simulator Lite software, practice exercises, 50 minutes of video training, and other study resources. See the Where Are the Companion Files on the last page of your eBook file for instructions on how to access. In addition to the wealth of content, this new edition includes a series of free hands-on exercises to help you master several real-world configuration activities. These exercises can be performed on the CCNA 200-301 Network Simulator Lite, Volume 2 software included for free on the companion website that accompanies this book. CCNA V3 Lab Guide Cisco Systems
"This course tests your knowledge of CCNA topics with practical, hands-on labs, including both configuration as well as troubleshooting labs. This course helps you prepare for the exam and gain the confidence to pass it! There are many topologies and many labs in this course! Networks are all around us and you are using one right now to access this course. Imagine, for a moment, how different your life would be without access to Facebook, Snapchat, Google, YouTube, Whatsapp, or any other websites on the internet? How would you live with no internet?. The internet is extremely important in modern life today and all websites and internet communication rely on networking. This reliance is only predicted to continue with the growth of the internet of Things (IoT) in the next few years. Without routers, switches, network cabling, and protocols such as BGP, there would be no internet! This course will teach you how networks actually work and how you are able to connect to websites like Facebook, Google, and YouTube. Companies throughout the world (from the smallest to the largest) rely on networks designed, installed, and maintained by networking engineers. Join this in-demand industry! By the end of this course, you will be able to confidently discuss networking topics and start configuring real networking devices such as routers and switches. This is an introductory course, but contains a lot of information that can be directly applied to the CCNA certification."--Resource description page.
Cisco via CPTS (Routing Labs) K.Mohan
The completely revised and only authorized textbook For The Cisco Networking Academy Program
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CCNA 4 curriculum.
CCNA 200-301 Official Cert Guide, Volume 2 Pearson Education
Describes the objectives of the CCNA INTRO exam and provides information on such topics as network types, switching fundamentals, TCP/IP, WAN technologies, IOS devices, and managing network environments.
Self Study CCNA 200-125 Cisco Press
Useful study material especially if you can setup a lab at home. In this lab guide, we have used Cisco Packet Tracer simulator to demonstrate all the step by step lab exercises. The instructions are mentioned in such as details that a candidate having just the basic knowledge of computer can easily perform all the mentioned lab exercises without requiring any help from a trainer/instructor/institute.
CCNA Exam Preparation Labs, Part 2 Cisco Press
Do you want to find out how a computer network works? Do you want to know how to keep your network safe? This book is all you need! In this book, you will get to know about resolving hostnames, resetting cisco router and switch password, CDP and LLDP, Telnet and SSH, Netflow collector and many other interesting networking topics are well described in this book. Please go through it, hope you will find it informative. All the chapters in this book written based on the author knowledge itself who is working in the network field for a long time. He has a good command of networking over few years. Chapters are based on practical based which will help readers to understand networking easily. Please send an email to firstname.lastname@example.org for any query related. You will get a response instantly.
101 Labs for the Cisco CCNA ExamCisco Press
Introduction to Networks (CCNA v7) Companion Guide is designed as a portable desk reference to use anytime, anywhere to reinforce the material from the Introduction to Networks course and organize your time. The book's features help you focus on important concepts to succeed in this course: Chapter Objectives - Review core concepts by answering the focus questions listed at the beginning of each chapter. Key Terms - Refer to the lists of networking vocabulary introduced and highlighted in context in each chapter. Glossary - Consult the comprehensive Glossary with more than 250 terms. Summary of Activities and Labs - Maximize your study time with this complete list of all associated practice exercises at the end of each chapter. Check Your Understanding Evaluate your readiness with the end-of-chapter questions that match the style of questions you see in the online course quizzes. The answer key explains each answer. How To - Look for this icon to study the steps you need to learn to perform certain tasks. Interactive Activities - Reinforce your understanding of topics with dozens of exercises from the online course identified throughout the book with this icon. Videos - Watch the videos embedded within the online course. Packet Tracer Activities - Explore and visualize networking concepts using Packet Tracer. There are 40 exercises interspersed throughout the chapters and provided in the accompanying Labs & Study Guide book. Part of the Cisco Networking Academy Series from Cisco Press, books in this series support and complement the Cisco Networking Academy curriculum.
ALL PACKET TRACER LABS Cisco Press
CCNA 200-301 Certification Lab Guide CCNA certification has become increasingly difficult and requires proper preparation to pass the exam. This lab guide is designed to prepare you 100% for the new exam. Learn all CCNA topics with a configuration-oriented "learn by doing" approach. Practice and verify your CLI technical skills with simulation labs that include configuration and operational commands. Cisco is aligning the new CCNA 200-301 certification exam with a shift to internet-based connectivity model and IP-only routing. The new exam removes all routing protocols except OSPFv2. There is a significant amount of wireless, automation and cyber security topics. That is attributed to the popularity of mobility services, cloud computing and SDN. The management of network infrastructure has radically changed with open source architecture. Cisco has programmable network devices and virtualization of physical equipment. CCNA engineers now support private and cloud data center connections. CCNA 200-301 Certification Lab Guide Learn Cisco CLI configuration skills Setup Your Own Virtual Lab Network Access, IP Connectivity Wireless, Security, IP Services Simulation Practice Labs CCNA Configuration Tool CCNA IOS Show Commands Shaun Hummel is author of certification books, video courses and recipient of Cisco spotlight awards. 15+ years of experience with Fortune 100 companies, large data centers, certification training, and globally connected infrastructure. www.cisconetsolutions.com CCNA Exam Preparation Labs, Part 1 Cisco Systems
Enterprise Networking, Security, and Automation (CCNA v7) Companion Guide is designed as a
Cisco Ccna Packet Tracer Labs Answers Chuguoore portable desk reference to use anytime, anywhere to reinforce the material from the Enterprise Networking, Security, and Automation course and organize your time. The book's features help you focus on important concepts to succeed in this course: Chapter Objectives - Review core concepts by answering the focus questions listed at the beginning of each chapter. Key Terms - Refer to the lists of networking vocabulary introduced and highlighted in context in each chapter. Glossary Consult the comprehensive Glossary with more than 250 terms. Summary of Activities and Labs Maximize your study time with this complete list of all associated practice exercises at the end of each chapter. Check Your Understanding - Evaluate your readiness with the end-of-chapter questions that match the style of questions you see in the online course quizzes. The answer key explains each answer. How To - Look for this icon to study the steps you need to learn to perform certain tasks. Interactive Activities - Reinforce your understanding of topics with dozens of exercises from the online course identified throughout the book with this icon. Packet Tracer Activities - Explore and visualize networking concepts using Packet Tracer exercises interspersed throughout the chapters and provided in the accompanying Labs & Study Guide book. Videos Watch the videos embedded within the online course. Hands-on Labs - Work through all the course labs and additional Class Activities that are included in the course and published in the separate Labs & Study Guide. Part of the Cisco Networking Academy Series from Cisco Press, books in this series support and complement the Cisco Networking Academy curriculum. Introduction to Networks Companion Guide Cisco Press
This book covers CCNA Labs for the following topics. Basics of networking Introduction to "Cisco Packet Tracer Student" Basic configuration using "Cisco Packet Tracer Student" Routing Labs Static routing Dynamic routing using RIPv2 Dynamic routing using EIGRP OSPF multiple area Standard ACL Extended ACL Static NAT Dynamic NAT PAT
Network with PracticalCisco Systems
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CCNA Cisco Certified Network Associate Study Guide, 7th Edition Createspace Independent Publishing Platform
Accessing the WAN CCNA Exploration Companion Guide Bob Vachon Rick Graziani Accessing the WAN, CCNA Exploration Companion Guide is the official supplemental textbook for the Accessing the WAN course in the Cisco Networking Academy CCNA Exploration curriculum version 4. This course discusses the WAN technologies and network services required by converged applications in enterprise networks. The Companion Guide, written and edited by Networking Academy instructors, is designed as a portable desk reference to use anytime, anywhere. The book's features reinforce the material in the course to help you focus on important concepts and organize your study time for exams. New and improved features help you study and succeed in this course: Chapter objectives: Review core concepts by answering the focus questions listed at the beginning of each chapter. Key terms: Refer to the updated lists of networking vocabulary introduced and turn to the highlighted terms in context in each chapter. Glossary: Consult the all-new comprehensive glossary with more than 250 terms. Check Your Understanding questions and answer key: Evaluate your readiness with the updated end-of-chapter questions that match the style of questions you see on the online course quizzes. The answer key explains each answer. Challenge questions and activities: Strive to ace more challenging review questions and activities designed to prepare you for the complex styles of questions you might see on the CCNA exam. The answer key explains each answer. Bob Vachon is the coordinator of the Computer Systems Technology program and teaches networking infrastructure courses at Cambrian College in Sudbury, Ontario, Canada. Bob has worked and taught in the computer networking and information technology field for 25 years and is a scholar graduate of Cambrian College. Rick Graziani teaches computer science and computer networking courses at Cabrillo College in Aptos, California. Rick has worked and taught in the computer networking and information technology field for 30 years. How To: Look for this icon to study the steps that you need to learn to perform certain tasks. Packet Tracer Activities: Explore networking concepts in activities interspersed throughout some chapters using Packet Tracer v4.1 developed by Cisco. The files for these activities are on the accompanying CD-ROM. Also available for the Accessing the WAN Course Accessing the WAN, CCNA Exploration Labs and Study Guide ISBN-10: 1-58713-201-X ISBN-13: 978-1-58713-201-8 Companion CD-ROM **See instructions within the ebook on how to get access to the files from the CD-ROM that accompanies this print book.** The CD-ROM provides many useful tools and information to support your education: Packet Tracer Activity exercise files A Guide to Using a
2021-06-25
Networker's Journal booklet Taking Notes: A .txt file of the chapter objectives More IT Career Information Tips on Lifelong Learning in Networking This book is part of the Cisco Networking Academy Series from Cisco Press. The products in this series support and complement the Cisco Networking Academy online curriculum.
CCNA 200-301 Lab Guide John Wiley & Sons
"Get the hands-on experience to pass your CCNA exam! Make sure you are ready to pass the CCNA exam! Prepare practically for the Cisco CCNA certification which is the most in-demand networking certification in the world today! Make sure you can pass the Cisco CCNA Routing and Switching 200-125 exam! This course tests your knowledge of CCNA topics with practical, hands-on labs. Labs include both configurations as well as troubleshooting labs. Start your journey today learning about networking."--Resource description page.
Packet Tracer Network SimulatorCisco Press
Take your first step to CCNA certification From bestselling author Todd Lammle comes the most up-to-date book on CCNA exam 640-821, the first exam in Cisco's popular two-exam Cisco Certified Network Associate (CCNA) certification track. Understand networking for the small or home office market, prepare for the exam, and acquire the skills you need with this comprehensive guide. Inside you'll find: Complete coverage of all exam objectives in a systematic approach, so you can be confident you're getting the instruction you need Practical hands-on exercises to reinforce critical skills Real-world scenarios that show you life beyond the classroom and put what you've learned in the context of actual job roles Challenging review questions in each chapter to prepare you for exam day Exam Essentials, a key feature at the end of each chapter that identifies critical areas you must become proficient in before taking exam 640-821 A handy tear card that maps every official exam objective to the corresponding chapter in the book, so you can track your exam prep objective by objective Look inside for complete coverage of all exam objectives. Featured on the CD SYBEX TEST ENGINE: Test your knowledge with advanced testing software. Includes all chapter review questions and bonus exams. ELECTRONIC FLASHCARDS: Reinforce your understanding with flashcards that can run on your PC, Pocket PC, or Palm handheld. Also on CD, you'll find preview editions of the CCNA Video Series and the CCNA Audio Series from author Todd Lammle, as well as the entire book in searchable and printable PDF. Study anywhere, any time, and approach the exam with confidence.
CCNA INTRO: Introduction to Cisco Networking Technologies Study Guide BookRix Networking for Home and Small Businesses CCNA Discovery Learning Guide Allan Reid • Jim Lorenz Networking for Home and Small Businesses, CCNA Discovery Learning Guide is the official supplemental textbook for the Networking for Home and Small Businesses course in the Cisco® Networking Academy® CCNA® Discovery curriculum version 4. The course, the first of four in the new curriculum, teaches networking concepts by applying them to a type of network you may encounter in a home or small office. The Learning Guide, written and edited by instructors, is designed as a portable desk reference to use anytime, anywhere to reinforce the material from the course and organize your time. In addition, the book includes expanded coverage of CCENT™/CCNA exam topics. The book's features help you focus on important concepts to succeed
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Volume 58 Issue 1 Winter
Winter 2018
Water Planning, Tribal Voices, and Creative Approaches: Seeking New Paths Through Tribal-State Water Conflict by Collaboration on State Water Planning Efforts
Stephen H. Greetham University of Oklahoma College of Law
Recommended Citation
Stephen H. Greetham, Water Planning, Tribal Voices, and Creative Approaches: Seeking New Paths Through Tribal-State Water Conflict by Collaboration on State Water Planning Efforts, 58 Nat. Resources J. 1 (2018).
Available at: https://digitalrepository.unm.edu/nrj/vol58/iss1/3
This Article is brought to you for free and open access by the Law Journals at UNM Digital Repository. It has been accepted for inclusion in Natural Resources Journal by an authorized editor of UNM Digital Repository. For more information, please contact email@example.com, firstname.lastname@example.org, email@example.com.
*
Stephen H. Greetham
WATER PLANNING, TRIBAL VOICES, AND CREATIVE APPROACHES: SEEKING NEW PATHS THROUGH TRIBAL-STATE WATER CONFLICT BY COLLABORATION ON STATE WATER PLANNING EFFORTS
ABSTRACT
More than a century after the Supreme Court issued its foundational Indian water law cases, only a handful of American Indian tribes have secured decrees or settlements of legally enforceable water rights. Efforts to resolve tribal water claims are typically hampered by legal and factual complexities as well as the equitable and political legacy of the United States' western expansion. Meanwhile, those difficulties notwithstanding, planners are refining their methodologies and rising to new challenges our water resource management systems now face (e.g., climate variability, aging infrastructure, changing usevalue priorities, etc.). Signaling a departure from exclusive reliance on formal dispute resolution mechanisms for facilitating tribal-state engagement on water resource issues, states have begun to engage tribal governments in collaborative water planning efforts. While planning cannot serve as a substitute for the enforceable legal finality of a decree or congressionally approved settlement, tribal-state collaboration in appropriate context and structure may present new opportunities for making overdue progress. Drawing on law, history, political science, Native American studies, and principals of dispute resolution and management, this article situates and explores the experiences of California, New Mexico, and Oklahoma in their outreach to tribes in state-led water planning efforts.
I. INTRODUCTION
Early twentieth century water planning facilitated development of massive infrastructure and made widespread western settlement and economic development
* Stephen Greetham serves as Senior Counsel and Special Counsel, Water and Natural Resources, to the Chickasaw Nation and as Adjunct Professor of Law for the University of Oklahoma College of Law. As an attorney, he has represented Taos Pueblo and the Chickasaw Nation in securing negotiated settlements of their water claims. He offers his heartfelt and everlasting gratitude to Amanda CobbGreetham—his wife, partner, sounding board, and invaluable collaborator in all things.
possible. 1 While they do not create law, these plans and the projects they produced gave shape to the physical, economic, and policy context in which the law has long been applied. Largely coinciding with federal assimilationist and terminationist policies 2 though, the government developed its plans without tribal input and with little concern for the adverse impact its projects would have on tribal lands, resources, and collective legal rights. This boundary limitation imposed on first generation water plans—the exclusion of tribal voices and failure to integrate identifiable tribal interests—has thus contributed to generations of complex and confounding water resource conflicts, which regularly sharpen tribal-state conflict lines.
Today, rising to a new era of challenges, water planners are refining their art and bending themselves to the task of developing new strategies, institutions, and funding priorities to address this century's resource management challenges. 3 Like the earlier plans, today's will not decide legal rights; nonetheless, they will establish frameworks and relationships that will shape how we move forward with our inherited conflicts. I have previously suggested that adapting water planning boundary conditions to better integrate tribal voices—an approach that would seem more in keeping with modern policies that support tribal self-determination and government-to-government engagement 4 —may provide opportunities for productive intergovernmental collaboration. 5 This article further explores the concept.
1. E.g., John R. Mather, WATER RESOURCES: DISTRIBUTION, USE, AND MANAGEMENT 294, 296301 (1984); W. Eugene Hollon, THE GREAT AMERICAN DESERT, THEN AND NOW 160,161-74 (1966).
2. E.g., COHEN'S HANDBOOK OF FEDERAL INDIAN LAW §§ 1.04-1.06, at 71-93 (Nell Jessup Newtoned., 2012) (hereinafter, "COHEN'S").
3. See, Water Resources Planning Act, Pub. L. 89-80, § 2, 79 Stat. 244 (1965) (declaring national policy of encouraging "the conservation, development, and utilization of water and related land resources . . . on a comprehensive and coordinated basis"); National Water Commission Act, Pub. L. 90515, § 3(a), 82 Stat. 868 (1968) (directing newly established commission to evaluate "national water resource problems" and, in doing so, "consider economic and social consequences of water resource development"); Cal. Water Code § 10004(a) (West 2001) (directing plan "for the orderly and coordinated control, protection, conservation, development, and utilization of the water resources of the state"); NMSA 1978, § 72-14-3.1 (2003) (directing "comprehensive state water plan" to serve as "strategic management tool" for enumerated objectives); Okla. Stat.tit. 82 § 1086.1 (1992) (directing plan "for the management, protection, conservation, structural and nonstructural development and utilization of water resources," with particular emphasis on "excess and surplus waters," and enumerating specific considerations); See also, James P. Morris, Who Controls the Waters? Incorporating Environmental and Social Values in Water Resource Planning, 6 Hastings W.-N.W. J. ENVTL. L. & POL'Y 117, 118-19, 120-29 (2000) (discussing history and
evolution of modern water planning); Cf. , Kathleen A. Miller, Grappling with Uncertainty: Water
Planning and Policy in a Changing Climate, 5 ENVTL. & ENERGYL. & POL'YJ. 395, 395-
96, 406-07 (2010) (discussing methods for adapting water planning to the uncertainties presented by climate change).
4. E.g., COHEN'S, supra note 2, § 1.07 at 93-108.
5. See, Stephen H. Greetham, Water Planning: An Opportunity for Managing Uncertainties at the Tribal-State Interface?, 64 OKLA. L. REV. 593, 594, 604-13 (2012). Accord, Curtis Berkey, Tribal Participation in California Water Planning 1-5 (November 4, 2009) (unpublished manuscript), http://www.berkeywilliams.com/docs/Briefing_Paper_2009_Tribal_Water_Summit.pdf.
Of course, fostering collaboration among heterogeneous interests is a challenge, 6 particularly when polarizing legal disputes remain outstanding. All the same, while natural resource fights do not intuitively foster partnerships, cooperative engagement in this area does occur, even across cultural, legal, and political lines 7 , and such occurrences–whether they succeed or fail prompt useful questions starting with: What can we learn from those experiences? What do they teach about the hurdles inherent to the tribal-state dynamic? What do they teach about how competing sovereignty and proprietary concerns might be handled (or at least not harmed) by supplemental approaches potentially capable of securing additional social goods? And more to the point: Are there not other, perhaps supplemental, mechanisms we can rely on in our efforts to reach workable resolutions of longstanding conflict?
Discussions of tribal water tend to focus on conflict and injustice. As political scientist Burton wryly notes:
There is a vast literature bemoaning the immoral treatment of indigenous Americans, in part because there is no shortage of examples of such treatment. Less common is some consideration of how we might go about righting old wrongs (restoring tribal water supplies) without committing news ones (taking water from non-Indians who thought they had acquired good title to it under state law). 8
The point of this article, however, is not to add to the literature "bemoaning" the treatment of American Indian tribes. It is instead intended to lay out a sober overview of relevant dynamics for purposes of examining a potential mechanism for increasing the likelihood of improving tribal-state efforts in a manner that affirms American Indian rights and sovereignty without undue disruption to the complex of equities and otherwise lawful rights vested during the past centuries of tribal dispossession. Efforts to achieve fair and workable resolutions of reserved tribal rights must continue, and in those efforts, there is no substitute for the enforceable finality only legal proceedings can provide; all the same, water planning may offer useful tools for improving our approaches to tribal-state water conflict in those instances where enforceable finality has not yet been achieved. For such potential to be realized, planners must break from the boundary conditions of prior generations and actively seek the integration of tribal voices into the collaborative fact finding and assessment, issue spotting, and strategic policy formation processes that make up modern water planning.
With this potential in mind, this article evaluates the context and experience of tribal-state engagement in water planning, focusing specifically on
6. Edella Schlager and William Blomquist, Resolving Common Pool Resource Dilemmas and Heterogenities Among Resource Users 1 (June 10-14, 1998) (unpublished conference paper), http://dlc.dlib.indiana.edu/dlc/bitstream/handle/10535/1009/schlager.pdf?sequence=1&isAllowed=y.
7. E.g., Zoltán Grossman, Unlikely Alliances: Treaty Conflicts and Environmental Cooperation between Native American and Rural White Communities, AM. IND. CULTURE & RESEARCH J. 29.4 at 21-43 (2005). Professor Grossman's article has been expanded to his recent book: Unlikely Alliances: Native Nations and White Communities Join to Defend Rural Lands (2017).
8. Lloyd Burton, AMERICAN INDIAN WATER RIGHTS AND THE LIMITS OF LAW x (1991).
state outreach to, and integration of, tribal government participation in state water planning efforts. As foundation for the discussion, Part II situates recurrent and archetypal tribal-state water conflict interests—interests that go beyond the water resources themselves—within the relevant legal and historical setting and offers a brief assessment of how traditional adversarial modes of conflict resolution, i.e., litigation and formal negotiation, have fared in reconciling those interests. Part III examines water planning as an evolving tool for approaching complex common pool resource challenges and reviews specific state efforts (by California, New Mexico, and Oklahoma) to integrate tribes into their planning processes, and evaluates those efforts to discern broader lessons before offering broader observations. Part IV offers a conclusion, lessons learned, and questions for us to answer moving forward.
II. A FRAMEWORK FOR UNDERSTANDING THE CHALLENGES: CONTEXT, INTERESTS, AND HOW WE HAVE FARED SO FAR
A. The Origin, Context, and Contours of Western Water Conflict
From the Louisiana Purchase 9 to the Gadsden Purchase, 10 the United States took a mere fifty years to stretch from the Mississippi to the Pacific. 11 It took only another fifty-eight years to establish state governments throughout the region. On the one hand, the United States' settlement of the American West offers a breathtaking example of territorial expansion and administrative nation-building; on the other, however, it offers the violent story of colonial and military displacement of North American indigenous populations—a displacement followed by the ongoing legalistic expansion of a plenary and paternalistic control of tribal peoples and resources. 12 Today, more than a century later, we continue to work to resolve the conflicts, inequities, and policy implications set in motion during this period.
As the United States expanded westward, the norms of constitutional federalism evolved generally to privilege state primacy in local water allocations. 13 Toward the end of the United States' period of westward expansion, however, in United States v. Rio Grande Dam and Irrigation Company, the United States Supreme Court reasserted the superiority of federal law, 14 holding that Congress's
9. Louisiana Purchase Treaty, Fr.-U.S., Apr. 30, 1803, 2 Stat. 245.
10. Gadsden Treaty, Mex.-U.S., Jun. 8, 1854, 10 Stat. 1031.
11. Proclamation, 37 Stat. 1728 (Feb. 14, 1912) (proclaiming statehood for Arizona, the last of the continental states to enter the Union).
12. E.g., COHEN'S, supra note 2, §§ 5.01-5.03, at 383-405 (2005); See also, Lone Wolf v. Hitchcock, 187 U.S. 553, 221 (1903) (concluding federal plenary authority empowers the United States to unilaterally abrogate treaties with American Indian tribes in the disposition of tribal land resources); United States v. Kagama, 118 U.S. 375, 380, 384-85 (1886) (concluding federal plenary authority vests Congress with requisite authority to enact statutes for the regulation of affairs internal to tribal communities without regard to constitutional basis or consideration of lack of tribal political franchise in federal systems).
13. California v. United States, 438 U.S. 645, 653, 656-63 (1978) (discussing statutory history of federal water development as basis for deference to state law).
14. United States v. Rio Grande Dam & Irrigation Co.,174 U.S. 690, 703-06 (1899).
practice of deferring to state law water allocation systems did not, of itself, signal the United States' abandonment of its constitutional prerogatives with respect to broader federal interests, thus providing the fundamental conflict line in western water battles—competing assertions of state and federal rights and authority. 15
Within the decade, the Court decided United States v. Winans 16 and Winters v. United States, 17 a pair of rulings that frame the tribal reserved rights doctrine—a rule of the federal common law of Indian affairs that holds, first, a tribal nation reserves to itself those rights not ceded by treaty or direct operation of federal law 18 and, second, the United States reserves from public use water sufficient to accomplish its purpose when it sets aside land for the use and benefit of an American Indian tribe. 19 Given the affirmation of paramount federal law, tribal reserved rights have long been held to be outside the presumed ambit of substantive state primacy, 20 providing the next and most relevant conflict line—the bounds of tribal versus state right and authority.
Throughout the Twentieth Century, the legal and factual situation grew more complex. For reasons remote from (and typically contrary to) tribal interests, the federal government engaged in massive reclamation projects that fostered an explosion in water development and dramatically altered the physical nature and operation of the region's watercourses. 21 Operating in conjunction with local water law systems and the economics and politics that drove them, these projects contributed to a significant over-allocation and eventual over-utilization of water resources as overseen by an expanding and increasingly conflicted federal-state water bureaucracy, 22 typically to the detriment of tribes whose reserved rights had yet to be perfected. 23 These dynamics gave rise to two lasting characteristics of our water laws: first, the vesting of diverse, overlapping, and conflicting sovereign, proprietary, and equitable interests in a limited resource; and second, the evolution of a complex body of federal statutes and regulations 24 designed to address
15. E.g., Reed D. Benson, Deflating the Deference Myth: National Interests vs. State Authority Under Federal Laws Affecting Water Use, 2006 UTAH L. REV. 241, 242-67 (2006).
16. United States v. Winans, 198 U.S. 371 (1905).
17. Winters v. United States, 207 U.S. 564 (1908).
18. E.g., COHEN'S, supra n.2, § 2.02[2] (describing Supreme Court conceptualization of "an Indian treaty as a grant of rights from the tribe to the United States, with the tribe reserving for itself all interests not clearly ceded," which rule is a fundamental element of the reserved rights doctrine).
19. E.g., id. § 19.02 (describing implied reservation of water rights recognized in Winters in relation to rights recognized in Winans).
20. See Arizona v. San Carlos Apache, 463 U.S. 545, 571 (1983); See also, New Mexico v. Aamodt, et al., 537 F.2d 1102, 1111 (1976).
21. E.g., Marc Reisner, CADILLAC DESERT: THE AMERICAN WEST AND ITS DISAPPEARING WATER 145-213 (1986); See also, Hollon, supra n.1, at 160-80.
22. See, Donald J. Pisani, WATER, LAND, AND LAW IN THE WEST: THE LIMITS OF PUBLIC POLICY 1-49 (1996).
23. See, U.S. National Water Commission, WATER POLICIES FOR THE FUTURE 476 (1973) (observing "in the water-short West, billions of dollars have been invested, much of it by the Federal Government, in water resource projects benefiting non-Indians but using water in which the Indians have a priority of right if they choose to develop water projects of their own in the future"), https://www.gpo.gov/fdsys/pkg/CZIC-hd1694-a57-1973/html/CZIC-hd1694-a57-1973.htm.
24. See generally, Endangered Species Act, 16 U.S.C. §§ 1531-1544; Clean Water Act, 33 U.S.C. §§ 1251-1388; National Environmental Policy Act, 42 U.S.C. §§ 4321- 4370m-12.
environmental and public participation considerations not present when the original infrastructure and water use allocation systems were developed and implemented. These characteristics provide our next set of conflicting interests, neither of which neatly conform to a "one versus another" construct—first, non-tribal property right claimants who are general beneficiaries, both legally and politically, of state water law allocation systems but are also frequently vested in the operation of federal water projects; and, second, non- government public interest groups engaged in the implementation of major federal environmental statutes or public lands law. In addition to implicating tribal, state, and federal governmental interests, these complex aggregations of non-governmental interest introduce to the mix non-tribal use-rights arising under state law and non-property use-value interests represented by advocacy organizations. 25
Meanwhile, as the facts and associated interests grew more complex, only modest progress was made in converting tribal reserved right claims to meaningful value. In the century since the Court issued its Winans and Winters decisions, two challenges have predominated: First, with respect to the particulars of water law, neither ruling offered much in the form of guidance as to how to disentangle tribal from state sovereignty interests or tribal property rights from those claimed under state law. 26 Second, efforts to develop fair and workable claims resolution have so far produced only limited success. Those ongoing efforts at disentanglement, definition, and resolution turn on a consistent practical question: What is the legally actionable definition of each tribe's reserved right as applied within a fact pattern that typically has been shaped by state law normative water right systems and competing non-tribal legal, equity, and policy interests? 27 Without a concrete answer to that question, everything else remains provisional and uncertain, at least for tribes and those whose rights may be subject to a federal law-based tribal claim.
It is through this thicket of colonial legacy, constitutional law and federalism, national growth, tribal sovereignty, private property, economic interest, and environmental law and policy that each tribal-state water conflict, particularly in the West, 28 must find its way. For those planning the trip, pack a lunch, for that is not an easy path to walk.
25. The terms "use-right" and "use-value" are intended to highlight the distinction between: (1) a right based on possession of a proprietary interest, the exercise of which is typically for purposes of a private good; and (2) a social utility or non-proprietary public good served by a certain mode of water use, such as leaving a flow in situ to support ecological, aesthetic, recreational, or other indirect economic values.
26. See, Greetham, supra note 5, at 594-99 (offering an overview of the significance and limitations of Winans and Winters in disentangling the specific substance of tribal water rights from state law normative riparian or appropriative water allocation systems). Cf. Pisani, supra note 22, at 170 (noting the Bureau of Reclamation's early inter-agency insistence on quantification of tribal claims in accord with state law appropriative rules rather than reserved right principles).
27. See, Greetham, supra note 5, at 599 n.17 (discussing significance of distinction between defining versus quantifying tribal reserved rights). Cf., Daniel McCool, Native Waters: Contemporary Indian Water Settlements In The Second Treaty Era 32 (2002) (Tribal governments are increasingly turning from courtroom battles to practical efforts to translate their paper rights into tangible benefits for the reservation.).
28. While reserved rights are typically associated with western water and tribal reservation land contexts, it merits noting that legal scholars have long contested that limitation, See, Hope M. Babcock, Reserved Indian Water Rights in Riparian Jurisdictions: Water, Water Everywhere, Perhaps Some
B. Situated Perspectives
Conflicts over common pool resources, such as water, can be uniquely complex. Each water system presents its own hydrologic and ecologic context and characteristics, but as political scientists Edela Schlager and William Blomquist note, heterogeneity among resource user interests also significantly contributes to common pool conflict complexity. These variations "present real challenges to gaining a common understanding of their shared problems, to communication, to devising fair rules of access and use, and to monitoring and enforcement of those rules." 29 In turn, this diversity informs perspectives on the disputed resource itself, introducing another level of complexity, i.e., each individual actor's sense of the problem to be solved. 30 While the particular setting and sets of interests, perspectives, and senses of the problem must be carefully assessed on their own terms and in the context of a particular conflict, 31 the broad historical, legal, and policy setting of western water conflicts allows us, at least for present purposes, to outline an archetypal set of interests, the contours of which help us to understand the shape and flavor of what parties bring to the table and what they seek from engagement.
1. American Indian Tribes
The peoples indigenous to North America are diverse in their histories, cultures, and the landscapes that comprise their homelands. Regardless of that diversity, a significant commonality is tribal status as political and cultural collectives that, similar to other collectives, seek recognition of and respect for their distinct identity and right to exist as such. Federal Indian law and policy scholar Charles Wilkinson discusses this as the goal of achieving "a measured separatism"—one that differs from the goals of other cultural or ethnic groups engaged in civil rights struggles in that it seeks not only a normative equality of individual rights but also a group right to "homelands . . . islands of tribalism largely free from interference" from non-tribal systems, including state governments. 32 Notwithstanding the diminished and checker-boarded tribal jurisdictions that have resulted from various and conflicting federal policies, the
Drops for Us, 91 CORNELL L. REV. 1203 (2006); Judith V. Royster, Winters in the East: Tribal Reserved Rights to Water in Riparian States, 25 WM. & MARY ENVTL. L. & POL'Y REV. 169 (20002001); Taiawagi Helton, Indian Reserved Rights in the Dual-System State of Oklahoma, 33 TULSA L.J. 979 (1998). More importantly, negotiating parties appear likewise not to have seen themselves as so limited. E.g., Water Infrastructure Improvement for the Nation Act, Pub. L. 114-322, § 3608, 33 Stat 2 (Dec. 16, 2016) (approving, among others, the Choctaw Nation of Oklahoma and the Chickasaw Nation Water Settlement); Seminole Indian Land Claims Settlement Act, Pub. L. 100-228, § 7, 101 Stat. 1560 (Dec. 31, 1987) (approving Seminole Nation water rights compact); Kickapoo Tribe Water Rights Settlement Agreement (settlement pending federal approval) (on file with author).
29. Schlager and Blomquist, supra note 6, at 1.
30. William M. Adams, et al., Managing Tragedies: Understanding Conflict Over Common Pool Resources, 302 SCIENCE 1915, 1915-16 (2003).
31. Schlager & Blomquist, supra note 6, at 3 (commending use of Elinor Ostrom's institutional analysis and development framework).
32. Charles Wilkinson, AMERICAN INDIANS, TIME, AND THE LAW, at 14 (1987). Accord Robert A. Williams, Jr., LIKE A LOADED WEAPON: THE REHNQUIST COURT, INDIAN RIGHTS, AND THE LEGAL HISTORY OF RACISM IN AMERICA xxxv-xxxvi (2005).
core tribal goal remains: To exist and thrive as unique political, ethnic, and cultural collectives—to continue. 33
Flipping the lens around, federal and state policy makers and advocates have frequently treated tribal "separatism" and continuance as something to be tolerated and managed until broader assimilationist goals can be achieved, a dynamic that has been present from the outset of the federal common law of American Indian affairs. In Worcester v. Georgia, 34 example, Chief Justice Marshall laid out a robust framework for the protection of tribal sovereignty, famously holding "[t]he Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force . . . ." 35 Importantly, though, what motivated the Court's opinion was not a respect for an inherent and self-evident tribal right to sovereignty. (Indeed, the Cherokee Nation was not even a party to the lawsuit. 36 ) Instead, the Court was preoccupied with affirming an overriding federal interest in monopolizing relations with tribal nations free from state interference. 37 Justice McLean's concurring opinion underscores that this federal-state conflict was the Justices' real concern:
The exercise of self-government by the Indians, within a state, is undoubtedly contemplated to be temporary. . . . At best, they can enjoy a very limited independence within the boundaries of a state, and such a residence must always subject them to encroachments from the settlements around them; and their existence within a state, as a separate and independent community, may seriously embarrass or obstruct the operation of the state laws. If, therefore, it would be inconsistent with the political welfare of the states, and the social advance of their citizens, that an independent and permanent power should exist within their limits, this power must give way to the greater power which surrounds it, or seek its exercise beyond the sphere of state authority. 38
33. Amanda J. Cobb, Understanding Tribal Sovereignty: Definitions, Conceptualizations, and Interpretations, AM. STUDIES 46:3/4 115, 124 (2005) (discussing Kathy Seton's explication of indigenous peoplehood to emphasize "'[t]heir struggles for self-determination are struggles to retain and/or regain cultural solidarity which unite them as a distinct people'"); Stephen Cornell, THE RETURN OF THE NATIVE: AMERICAN INDIAN POLITICAL RESURGENCE 7 (1988) (discussing the paramount tribal goal of "survival: the maintenance of particular sets of social relations, more or less distinct cultural orders, and some measure of political autonomy in the face of invasion, conquest, and loss of power").
34. Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
35. Id. at 520.
36. Cf. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 19-20(1831) (rejecting tribe's effort to invoke Court's original jurisdiction in action challenging same state laws).
37. See 31 U.S. (6 Pet.) at 561 ("[T]he acts of Georgia are repugnant to the Constitution, laws and treaties of the United States. They interfere forcibly with the relations established between the United States and the Cherokee nation, the regulation of which, according to the settled principles of our constitution, are committed exclusively to the government of the union." (Emphasis added.)); see also Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543, 574 (1823) (restraining legal effect of tribal alienation of lands in favor of centralized federal control).
38. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 593-94 (McLean, J., concurring).
As a matter of doctrine, the Chief Justice's views on federal primacy in federal-tribal affairs remains the rule, though the meaning of which is still regularly contested. 39 On the other hand, the "measured separatism" the law has so far protected, has often wrestled with and perpetuated a colonial "otherness" problem for tribes in relation to the American constitutional system 40 —a problem illustrated by Justice McLean's argument and one that is too often compounded by the common law's difficulty in shaking off the rhetorics and frameworks of racism with which this area of federal law was founded. 41
This problematic and unsettled dynamic was made worse by the federal bureaucracy's botched attempts to address the human toll of western expansion. For example, between 1890 and 1930—prior to which period the United States had forcibly contained or relocated most of the West's tribal population to reservations and during which period had then allotted much of those reservation lands to individual ownership, both tribal and non-tribal—the government constructed a patchwork of tribal irrigation projects. By 1928, the United States had spent approximately $36 million on 150 separate projects that served nearly 700,000 acres. 42 While these projects were justified by tribal needs arising from federal policies that sought to impose agricultural economies on tribal peoples forced to live within restricted land bases, 68 percent of the acreage benefitted by these irrigation projects was farmed by non-Indians—illustrating the disproportionate non-tribal benefit derived from ostensibly tribal projects. 43 Western water law and policy historian Donald Pisani offers this discussion of the conversion of tribal projects to non-tribal benefit during this period:
The Indian Irrigation Service enjoyed modest success in the 1890s, but that ended after Congress passed the Reclamation Act in 1902. Reclamation Service officials quickly recognized that the Indian reservations contained a great deal of land that could be purchased or leased by white farmers and that the proceeds from surplus land sales could be used to pay for reclaiming land owned by whites as well as Indians. In 1907, the Reclamation Service took over the construction of the largest irrigation projects on Indian reservations or former reservations—with the
39. Cf. White Mountain Apache v. Bracker, 448 U.S. 136, 143-45 (1980) (establishing balancing test for evaluation of respective federal, tribal, and state interests relating to state effort to regulate nonIndian activity within reservation).
40. See Philip P. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 HARV. L. REV. 381, 383-84, 390-406 (1993) (analyzing the power-law tension inherent to the common law of federal Indian affairs and the difficulty the law has had in mediating the subject matter's colonial foundation within a normative constitutional framework); see generally Frank Pommersheim, Is There a Little (Or Not So Little) Constitutional Crisis Developing in Indian Law?: A Brief Essay, 5 U. PA. J. CONST. L. 271, 271 (2003).
41. Williams, supra note 32; David E. Wilkins, AMERICAN INDIAN SOVEREIGNTY AND THE U.S. SUPREME COURT: THE MASKING OF JUSTICE (1997); cf. Stephen H. Greetham, Tribes in "Unexpected Places": The NLRA, Tribal Economic Actors, and Common Law Expectations of Tribal Authenticity, 38.4 AM. IND. Q. 427, 438-49 (2014) (analyzing challenges the common law's understanding of "tribe" presents in applying concepts of tribal sovereignty in the context of modern tribal economic actors).
42. Peter W. Sly, RESERVED WATER RIGHTS SETTLEMENT MANUAL 14 (1988). 43. Id. at 15.
complicity, if not full support, of the Indian Office. Officials in the Bureau of Indian Affairs hoped that white farmers would serve as models to would-be Indian irrigators. Therefore, they encouraged whites to take up land on the former reservations. 44
As Pisani concludes, "[b]y the 1920s, the Indian irrigation projects served far more whites than Indians—often at the expense of the Indians." 45
Particularly when compared with the contemporaneous socio-political and physical circumstance of tribal peoples 46 and the plenary control asserted by the federal government that came to its zenith during this time, 47 the failure of these and similar federal programs to serve tribal peoples is unconscionable. But this was not the end of the missed opportunities: By 1975, after reallocating administration of non-tribal projects to the Bureau of Reclamation and retaining Bureau of Indian Affairs oversight of the tribal projects, the government had made $201 million in capital expenditures on tribal projects, though the average area under irrigation had dropped to 648,000 acres. 48 Meanwhile the federal government spent billions to develop waters subject to tribal claim for predominantly non-tribal expansion and economic benefit. 49 This entire period of development amounted largely to an exercise of inefficient federal paternalism, incompetently implemented and inadequately realized, which had the effect of empowering state and other nontribal interests at the expense of tribal right and benefit.
The largest and perhaps most (in)famous example of these projects is the Navajo Indian Irrigation Project (NIIP), a project authorized by Congress in 1962, 50 which has never been fully funded. 51 While the United States originally calculated the Navajo Nation reserved right for the NIIP to be 787,000 acre-feet per year, nontribal political opposition to a tribal project of that size stymied progress and led to the Navajo Nation's being pressured to accept an ostensibly guaranteed annual entitlement of 508,000 acre-feet, which the Department of the Interior later scaled back to 370,000 acre-feet, citing improved water delivery efficiencies. 52 Meanwhile, as the Navajo's water allocation was slashed to less than half of the government's original calculation, Congress tied the appropriation of monies for the construction of NIIP to the San Juan-Chama Project, which was developed for the benefit of New Mexico—though "[e]ight years after authorization, NIIP was only seventeen percent completed" while "New Mexico's San Juan-Chama project was about two-
44. Pisani, supra note 22, at 161.
45. Id. at 161-62.
46. See generally Institute for Gov't Research, THE PROBLEM OF INDIAN ADMINISTRATION (1928) (documenting impact of prior federal policies), http://www.narf.org/nill/resources/meriam.html.
47. E.g., COHEN'S, supra note 2, §1.05 at 79-80; Williams, supra note 32, at 71-83, 85 n.35; Wilkins, supra note 41, at 105-17; see also Lone Wolf v. Hitchcock, 187 U.S. 553, 565-66 (1903).
48. Sly, supra note 42, at 16-17.
49. See supra text accompanying notes 21-22.
50. An act to authorize the Secretary of the Interior to construct, operate, and maintain the Navajo Indian irrigation project and the initial stage of the San Juan-Chama project as participating projects of the Colorado River storage project, and for other purposes, Act of Jun. 13, 1962 Pub. L. 87-483, 76 Stat. 96 (codified at 43 U.S.C. §§ 615ii).
51. Sly, supra note 42, at 17-18.
52. Burton, supra note 8, at 30-31.
thirds built." 53 Today, the Navajo Nation Council continues to work to secure the funding and federal commitment to complete NIIP, 54 while San Juan-Chama has been in full operation for years.
Finally, as the common law continued to fumble with its handling of tribal sovereignty, as the federal government continued to mismanage tribal assets, and as the state's regulatory hand grew stronger, the slow and steady trend of the western water bureaucracy has been "to treat tribes like mere individual owners of water rights and less like sovereigns with the authority and power to govern those water rights within their own territories." 55 As Richard Monette frames the matter:
Indian tribes should not own water rights. Individuals own water rights; sovereigns govern water rights . . . . Should tribes be more like individuals, who merely own water rights under the property scheme of some other sovereign? Or should tribes be more like sovereigns, with the authority and power to own water and to govern water rights within their respective territories and jurisdictions, including the power to vest individuals with ownership? 56
Tribes, of course, have proprietary interests in water resources, but the failure of the law and bureaucracy to adequately integrate both tribal sovereignty and proprietary interests exacerbates the difficulty for tribal leaders seeking to obtain that "measured separatism" with respect to their tribes' reserved right claims.
As a whole, this history of disregard, hostility, and mismanagement promotes a tribal skepticism, if not overt cynicism, when it comes to law, water resources, and promises of justice. 57 While the particulars vary, each tribal government and community has some local version of this story, which tends to bolster a sense of distrust, both among tribal leaders and the members of the respective polity to which they owe a duty of responsibility and stewardship. It merits emphasis that much of this history of failure, including the Indian Irrigation Projects, is within the living memory of many tribal members and citizens—and many more who were raised by those individuals. Furthermore, given the tendency of the current Supreme Court to manifest sympathy for state interests over federal
53. Id. at 31.
54. See Media Release, Office of the Speaker of the 23rd Navajo Nation Council, Council moves forward with efforts to complete the Navajo Indian Irrigation Project (Feb. 29, 2016) (on file with author).
55. Richard Monette, One Hundred Years after Winters: The Immovable Object of Tribes' Reserved Water Meets the Irresistible Force of States' Reserved Rights under the Equal Footing Doctrine, in THE FUTURE OF INDIAN AND FEDERAL RESERVED WATER RIGHTS: THE WINTERS CENTENNIAL 89 (Barbara Cosens et al., eds., 2012).
56. Id. (emphasis added).
57. Cf. Pisani, supra note 22, at 160 (discussing nature of American Indian skepticism and opposition to federal Indian Irrigation Projects); Burton, supra note 8, at 60 ("It is little wonder that while tribal leaders are not wildly enthusiastic about negotiation, many of them are reluctant to reject that alternative unequivocally."). See also Berkey, supra note 5, at 2 ("Historically, Indian Tribes have kept the State at a distance with regard to legal and political matters, no doubt due to the hostile relationship between the State and the Tribes in the years following statehood and the numerous court battles to protect tribal water and fishing rights.").
authority or tribal interests, tribal wariness of the legal system finds basis in current events, not only history. 58
Regardless of any skepticism, tribal leaders still must do what all community leaders must do: They must navigate the broader legal and political systems to address their communities' material challenges with respect to securing reliable water supplies for human consumption, economic growth, ecological health, and, in many instances, particularized cultural and/or religious needs. 59 While all polities must address similar needs, tribal government must (and do) do so in contexts in which their governments may lack recognized legal control over the watersheds on which they depend 60 or face opposition when the law does give them control 61 (or even access to the possibility of a degree of control) 62 and where poverty rates are generally high, rates of economic development comparatively low, and sources of government revenue constrained. 63 As western and tribal water law scholar David Getches observed, "[t]he futures of tribes have long been trapped behind unclaimed, unusable water rights," 64 the truth of which speaks to the ultimate material interest driving tribal efforts to resolve claims: As a general matter, tribes want the value, utility, and benefit of legally enforceable water rights so they can protect their homelands and provide for their own future. But they want more than that, as well.
American Indian tribes have been able to capitalize on the late-1960s shift in federal policy and have expanded institutional capacities in government, law, and economic development. 65 Taking advantage of "treatment in the same manner
58. Cf. Burton, supra note8, at 34, 36-37, 61-62.
59. E.g., Rebecca Tsosie, Tribal Environmental Policy in an Era of Self-Determination: The Role of Ethics, Economics, and Traditional Ecological Knowledge, 21 VT. L. REV. 225, 242-47 (1996) (discussing unique complex of challenges relating to implementation of tribal environmental programming).
60. See, e.g., Complaint for Declaratory and Injunctive Relief, Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, Civ. No. 16-1534 (D.D.C., Jul. 27, 2016).
61. See, e.g., Montana v. U.S. EPA, 137 F.3d 1135 (9th Cir. 1998) (addressing challenge to EPA's delegation of Clean Water Act regulatory authority to tribal environmental program); City of Albuquerque v. Browner, 97 F.3d 415 (10th Cir. 1996) (addressing challenge to EPA's integration of tribal water quality standards in permitting of upstream off-reservation discharges).
62. See, e.g., Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users, Pub. L. 109-59, § 10,211, 119 Stat. 1144 (Aug. 10, 2005) (imposing unique procedural requirements on tribes in Oklahoma seeking "tribes as states" status); Travis Snell, Tribal officials angry over transportation bill, CHEROKEE PHOENIX, May 3, 2006, http://www.cherokeephoenix.org/Arti cle/index/1417; Editorial, Filling the Bill: Inhofe's sage rider targets tribes, OKLAHOMAN, Aug. 11, 2005 http://newsok.com/article/2907126.
63. Harvard Project on American Indian Economic Development, THE STATE OF THE NATIVE NATIONS: CONDITIONS UNDER U.S. POLICIES OF SELF-DETERMINATION 112-22 (2008).
64. David Getches, Foreward, to NEGOTIATING TRIBAL WATER RIGHTS: FULFILLING PROMISES IN THE ARID WEST xiv (Bonnie Colby et al., 2005).
65. Harvard Project, supra note 65, at 115 (observing tribes have "leverage[d] policies of selfdetermination into self-selected investments and focus on developing the legal, regulatory, and physical infrastructure that rewards productivity, holds decision makers accountable, and holds down the risks of political instability for individuals and businesses"); Matthew L.M. Fletcher, Retiring the "Deadliest Enemies" Model of Tribal-State Relations, 43 TULSA L. REV. 73, 74 (2007).
as states" provisions in certain major environmental statutes, 66 many tribes may also now operate environmental programs and have promulgated standards governing activities within or affecting their jurisdictional territories. 67 While the legacy of failed federal policies–e.g., poverty, unemployment, and other economic and associated social challenges–remains problematic throughout Indian country, tribal economic and governance capacities have grown, as has a collective tribal ability to impact matters affecting tribal communities. 68 And with respect to that central tribal-state conflict line, federal Indian law scholar Matthew L.M. Fletcher argues that "American Indian law is transforming":
The political relationship between the United States and Indian tribes remains, but a new and more dynamic relationship between states and Indian tribes is growing. States and Indian tribes are beginning to smooth over the rough edges of federal Indian law— jurisdictional confusion, historical animosity between states and Indian tribes, competition between sovereigns for tax revenue, economic development opportunities, and regulatory authority— through cooperative agreements. In effect, a new political relationship is springing up all over the nation between states, local units of government, and Indian tribes. . . . Many states now recognize tribes as de facto political sovereigns, often in the form of a statement of policy whereby the state agrees to engage Indian tribes in a government-to-government relationship mirroring federal policy. The tribal-federal political relationship remains, but more and more tribal-state political relationships form every year . . . . 69
Sovereignty, as among governments, is a constant negotiation. Its exercise and health requires engagement and relationship, not the mere drawing of lines or the defining of legal rights. Monette implies this point when discussing tribes as sovereigns, not merely proprietors, and David Wilkins and Heidi Kiiwetinepinesilk Stark state the point more directly when arguing that tribal survival has long "necessitated the practice of aboriginal sovereigns negotiating political compacts, treaties, and alliances with European nations and later the United States." 70 All of this, Wilkins and Kiiwetinepinesilk Stark argue, is part of a broader "governmental interdependency" that is inherent to the modern exercise of all sovereignties, requiring the constant negotiation, development, and maintenance of relationships
66. Safe Drinking Water Act, 42 U.S.C. § 300j-11(2012); Clean Water Act, 42 U.S.C. § 1377(e) (2012); Clean Air Act, 42 U.S.C. § 7601(d) (2012); Stephen Greetham, Native American Sovereignty and the Clean Water Act: The Historic Judicial Treatment of Tribal Sovereign Powers and Recent Statutory Reforms, 3 N.U. FORUM 1 (1998); Daniel I.S.J. Rey-Bear, The Flathead Water Quality Standards Dispute: Legal Basis for Tribal Regulatory Authority over Non-Indian Reservation Lands, 20 AM. IND. L. REV. 151 (1995-1996).
67. See supra note 61 and 66.
68. Harvard Project, supra note 63, at 117-21.
69. Fletcher, supra note 65, at 74; see also Harvard Project, supra note 63, at 72-77.
70. David E. Wilkins & Heidi Kiiwetinepinesilk Stark, AMERICAN INDIAN POLITICS AND THE AMERICAN POLITICAL SYSTEM 34 (2011).
between and among sovereigns. 71 Scholars have disputed the wisdom and utility of tribal engagement with non-tribal political systems; 72 as political scientist Daniel McCool puts the question, can a "strategy of political compromise, via an alien system of values, truly protect the long-term best interests of Indian tribes?" 73 However, given that water is typically a trans-jurisdictional matter, engagement— in one form or another—is largely unavoidable, and ultimately the success of any engagement will be shaped by the health of the relationship of the engaged parties. 74
While not uniform throughout Indian country, the growth in tribal government institutions and economic development has created expanding opportunities for mutually beneficial intergovernmental alliance. The opportunity for conflict will always inhere to the tribal-state dynamic, but as former Arizona Governor Bruce Babbitt said on the subject:
This is not a problem, it's an opportunity . . . . What we have is an intergovernmental environment in which, if we could just quit thinking of Indian tribes and nations as problems and start thinking of them as peoples, communities, and governmental units, we can get on which business and make it happen. 75
The act of claiming and securing tangible, material value in the provision of reliable access to necessary waters is, of course, a paramount tribal goal, but tribes generally seek not only the water; they also seek intergovernmental relationships that are respectful of their status as recognized political collectives and which integrate them, as such, into the broader "governmental interdependency" of sovereignty. They seek a mode of integration that affords "a measured separation" within, not barred from, the evolving American legal, political, and cultural dynamic. 76 In short, in addition to water rights, tribes are generally looking for partners who approach them in the same spirit commended by former Governor Babbitt.
71. Id. at 38. (citing Valerie Lambert, CHOCTAW NATION: A STORY OF AMERICAN INDIAN RESURGENCE 211 (2007)).
72. Compare Robert B. Porter, The Demise of the Ongwehoweh and the Rise of the Native Americans: Redressing the Genocidal Act of Forcing American Citizenship upon Indigenous Peoples, 15 HARV. BLACKLETTER L.J. 107 (1999), (arguing the imposition of United States citizenship on indigenous peoples was a unilateral act of colonization and advocating repeal of the Indian Citizenship Act and indigenous resistance and general withdrawal from non-indigenous political processes) with John P. LaVelle, Strengthening Tribal Sovereignty Through Indian Participation in American Politics: A Reply to Professor Porter, 10 KAN. J.L. & PUB. POL'Y 533 (2001), (responding and arguing in rebuttal to Porter's article). See also Carol Goldberg and Duane Champagne, Ramona Redeemed? The Rise of Tribal Political Power in California, WICAZO SA R. 17.1 at 44 (2002).
73. McCool, supra note 27, at 9.
74. See, e.g., Adams, supra note 30, at 1916.
75. Colby, supra note 64, at 33.
76. See supra text accompanying notes32-33; see also Cobb, supra note 33, at 119-20 (discussing inherency of sovereignty but its "political effect" as dependent on relational recognition).
2. State Governments
While American Indian tribes wrestle with the challenge of colonial "otherness," states occupy a privileged position within the federal system. Though, among the fundamental tensions inherent in the United States' Constitution is the exact metes and bounds of state versus federal power, states—particularly western states—have consistently asserted their rights against perceived federal overreach. 77 With respect to the control and local allocation of water, states assert those rights from a reasonably solid foundation.
The legal control and local allocation of water was largely an afterthought in the federal government's implementation of western expansion. With the passage of the Homestead Act of 1862, 78 Congress opened the vast western public domain to lawful private settlement, and the resulting flood of migration increased local needs for works to provide water for domestic, industrial, and agricultural use throughout the predominantly arid region. As most of the land remained in federal title, much of those works were constructed on federal lands. 79 Soon thereafter Congress enacted the Mining Act of 1866, signaling its deference with respect to private rights to the continued use of water in accord with "local customs, laws, and the decisions of the courts." 80 As the California Supreme Court tells the Story:
For a long period the general government stood silently by and allowed its citizens to occupy a great part of its public domain in California, and to locate and hold mining claims, water rights, etc., according to such rules as could be made applicable to the peculiar situation; and, when there were contests between hostile claimants, the courts were compelled to decide them without reference to the ownership of the government, as it was not urged or presented. In this way, from 1849 to 1866, a system had grown up under which the rights of locators on the public domain, as between themselves, were determined, which left out of view the paramount title of the government. 81
77. See In re U.S. Dep't of Def,, U.S. E.P.A. Final Rule: Clean Water Rule: Definition of Waters of U.S., 817 F.3d 261 (6 th Cir. 2016), cert granted sub nom. Nat'l Assoc. of Mfrs. v. Dep't of Def., 137 S.Ct 811, 196 L. Ed. 2D 595 (2017); see also Memorandum from U.S. EPA and U.S. Army Corps of Engineers on Administration of Clean Water Programs in Light of the Stay of the Clean Water Rule, Improving Transparency and Strengthening Coordination (Nov. 16, 2015), https://archive.epa.gov/epa/sites/production/files/2015-11/documents/2015-11-16_signed_cwr_post- stay_coordination_memo.pdf (This conflict line has flared most recently in relation to the Army Corps of Engineers' and Environmental Protection Agency's promulgation of Clean Water Act jurisdictional rules, which are now heading to the Supreme Court).
78. Homestead Act of 1862, Pub. L. 37-64, 12 Stat. 392, Ch. 75.
79. E.g., California, 438 U.S. 645 at 656 (1978).
80. Mining Act of 1866, 39 Cong. Ch. 262, § 9, 14 Stat. 253, 43 U.S.C. § 661.
81. Cave v. Tyler, 133 Cal. 566, 567, 65 P. 1089, 1090 (1901). Accord A. Dan. Tarlock, et al., WATER RESOURCE MANAGEMENT: A CASEBOOK IN LAW AND PUBLIC POLICY 106 (2009) ("In settlement of the West, Congress's silence about water rights on the public lands had been at once confusing and convenient. The states did as they pleased.").
Next, Congress enacted the Desert Lands Act of 1877, 82 the central act of congressional deference in this area of the law and which the Supreme Court has interpreted as effecting a severance of non-navigable waters within the enumerated western states and a general reservation of those waters "for the use of the public under the laws of the states and territories." 83 Finally Congress enacted the Reclamation Act of 1902 84 to authorize the construction of massive works to supplement local supply infrastructure for expanding non-tribal settlement, agriculture, and industry. 85 The Court has since interpreted the Reclamation Act as generally subordinating federal operation of projects built under its authority to state water allocation rules and administration. 86
In the words of Justice Rehnquist, this statutory history manifests "the consistent thread of purposeful and continued deference to state water law by Congress" 87 though, as already noted, not without exception. 88 Paramount federal sovereignty interests have not been waived by this tradition of deference, 89 nor have the nature and extent of reserved tribal water rights been subordinated to state substantive law. 90
With respect to state substantive water law, those laws generally perform three functions: They establish the rule system by which persons obtain new water rights, they provide adjudicative processes for the determination of existing water rights, and they administer the ongoing use, transfer, and distribution of established water rights. 91 The existence of inchoate federal reserved rights can challenge stateled efforts in system-wide water management and complicate administrative efforts to define and administer property rights. 92 This has particularly, though not exclusively, been a concern in normatively appropriative systems. 93
82. Desert Lands Act of 1877, Ch. 107, § 1, 19 Stat. 377, 43 U.S.C. 321.
83. California Oregon Power Co. v. Beaver Portland Cement Co., 295 U.S. 142, 162 (1935); see also California, 438 U.S. 645 at 657.
84. Reclamation Act of 1902, Ch. 1093, 32 Stat. 388, 43 U.S.C. 416.
85. California v. United States, 438 U.S. 645 at 663.
86. Id. at 667-70.
87. Id. at 653.
88. See U.S. v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 703 (1899).Cf. Tarlock, supra note 81, at 107 ("Many years after Winters the Supreme Court said that, simply passing three post-Civil War statutes that scarcely mentioned water, Congress had deferred to the states to fashion their own water law systems.
89. See U.S. v. Rio Grande Dam & Irrigation Co., 174 U.S. 690, 703-07 (1899).
90. Arizona v. San Carlos Apache Tribe of Arizona, 463 U.S. 545, 570-571 (1983).
91. Conference of Western Attorneys General, AMERICAN INDIAN LAW DESKBOOK 587 (Mazurek, Joseph et al. eds., 2014).
92. See Oklahoma v. Tyson, 258 F.R.D. 472, 479 (N.D. Okla. 2009) (dismissing state damages claim based on procedural implications arising from unresolved tribal water rights claims). See also Matthew L.M. Fletcher, Tribal Disruption and Federalism, 76 MONTANA L. REV. 97, 97 (2015). The rights of tribes and tribal populations can also be challenged. See id. at 99. (describing generally and in contemporary context the relationship and relative power of tribes and tribal populations with respect to state electoral and political systems, as contrasted with the tribal-federal trust relationship).
93. Royster supra note 28 at 169 ("With one partial exception, Indian reserved rights to water have been litigated only for reservations located in states following the prior appropriation system of state water law rights.").
Starting early in the Twentieth Century, many western state legislatures adopted water codes that provided for comprehensive water rights adjudications. 94 Limitations on state substantive jurisdiction and the federal government's sovereign immunity, however, placed reserved rights outside the reach of state law adjudication proceedings; indeed, the Justice Department consistently used the reserved rights doctrine for defensive purposes only, i.e., to enjoin non-tribal diversions or state proceedings it viewed as contrary to federal interests, 95 which thwarted state authority to conduct comprehensive water right adjudications. 96 In 1952, Congress opened the door for such state authority by enacting the McCarran Amendment, 97 which serves to waive federal immunities in state-led stream adjudications. Since its enactment, the Supreme Court has construed it as opening the door for state court determinations of federal reserved right claims, 98 and subsequent litigation suggests a general rule that state courts are not only available for these actions but may be the preferred forum—even where tribal water rights are at issue. 99
Tribes have continued to challenge the states' procedural hold on the litigation of tribal water rights, 100 but state privilege has burrowed deep roots. 101 In short, states have spent considerable institutional, financial, and political capital on securing the legal authority to control the relevant litigated processes.
This procedural advantage notwithstanding, states do not run the table. The Supreme Court has consistently and unambiguously reaffirmed that federal law, not state, controls the substance of tribal reserved rights. 102 While this rule may be of debatable immediate value to federal and tribal interests, given McCarran's empowering of state courts to take the first pass on the questions presented, 103 federal law's substantive primacy continues to increase transactional
94. E.g., Colorado River Water Conservation Dist. v. U. S., 424 U.S. 800, 804 (1976).
95. E.g., Winters v. U. S., 207 U.S. 564, 565, (1908) (the United States seeking, and obtaining, relief in the form of enjoining non-tribal water use, rather than a definition of the tribal water right itself).
96. COHEN'S, supra note 2, at 19.05[1] ("Historically, the states lacked subject matter jurisdiction over Indian water rights.").
97. See 43 U.S.C. § 666(a) (2012).
98. U.S. v. Dist. Ct. In and For Eagle County, Colo., 401 U.S. 520, 524 (1971).
99. Arizona v. San Carlos Apache Tribe of Arizona, 463 U.S. 545, 570 (1983) (rejecting secondary assault on Colorado River abstention); U.S. for and on Behalf of Acoma and Laguna Indian Pueblos v. Bluewater-Toltec Irrigation Dist. of New Mexico, 806 F.2d. 986, 987 (10th Cir. 1986) (per curiam) (affirming denial of removal effort).
100. E.g., Confederated Salish and Kootenai Tribes v. Clinch, 992 P.2d 244, 250 (Mont. 1999) (holding state jurisdiction over water resources limited unless determination made regarding quantity of water "legally available," which could not be determined without quantification of tribal reserved rights). See also e.g., Oklahoma Water Res. Bd. v. United States, et al., Civ. No. 12-275 (Mar. 12, 2012) (motion to remove state stream adjudication to federal court).
101. San Carlos Apache Tribe of Arizona, 463 U.S. at 570 (rejecting secondary assault on Colorado River abstention); Bluewater-Toltec Irrigation Dist. of New Mexico, 806 F.2d. 986, 987 (10th Cir. 1986) (per curiam) (affirming denial of removal effort).
102. See Arizona v. San Carlos Apache Tribe of Arizona, 463 U.S. 545, 571, 580 (1983).
103. See, e.g., Scott B. McElroy & Jeff. J. Davis, Revisiting Colorado River Water Conservation District v. United States—There Must Be a Better Way, 27 ARIZ. ST. L.J. 597, 599, 618 (1995) (analyzing state court handling of the substantive law of federal reserved rights).
complexity, risk, and cost—factors which bear directly on state government pursuit of clean and clear resolutions. In short, no matter the litigated and legislated successes of state governments, formal resolution of reserved rights—of water rights, in general—remains hard, expensive, and polarizing work. 104 States have, accordingly, supported increased federal investment in achieving negotiated resolutions—acting in the belief that formal negotiations will provide a surer path to workable resolution. 105
Finally, surrounding the tribal-state relationship are the myriad of water resource regulatory and policy responsibilities the state owes to its state-law constituents. As Peter Sly puts it, "the state is like a 'traffic cop'" with a "primary interest" in the supervision and "administ[ration] of state- created water rights in a comprehensive and simplified process, to minimize surprises and uncertainties for water users." 106 Given the predominance and diversity of the exercise of those "state-created water rights" and the privileged status federal law has afforded state regulation of them, the state's role as "traffic cop" can be fairly viewed as less a desire to thwart tribal rights and sovereignty and more simply as a public duty— one that strongly informs, if not drives, its interests in these matters.
In sum, states continue to seek not only resolution of reserved rights but workable resolutions that support regulatory stability. If it is acceptable to repurpose Justice McLean's sour argument in Worcester, it may be fair to say states seek a resolution to reserved rights on terms that do not "seriously embarrass or obstruct the operation of state laws." 107 It is one thing to say that reserved rights lie outside the reach of state authority; it is another (and far more complicated) thing to arrive at legally actionable definitions of those reserved rights in a manner that does justice to the claim while integrating them to a broader property rights system without undue prejudice or harm to other lawful and equitable interests vested under state law. The first statement presents the conflict; the second offers a form of fair resolution. The consequence of our shared history is complex and challenging, but states—like all sovereigns—are not inclined to abandon local interests or claimed governmental rights based solely on appeals to that history. Instead, fundamental to the approach of state regulators and political leaders in these matters is a path to reconciliation that does minimal violence to current legal, property, and power systems.
3. The Other Parties
The tribal-state relationship, of course, does not exist in isolation. Multiple other actors have relevant affected interests, and each has its own relationship, common cause, and conflict with tribal and/or state sovereigns—most prominently, the United States, non-tribal use-right claimants, and use-value advocacy organizations.
104. See, e.g., Rhett Larson & Kelly Kennedy, Bankrupt Rivers, 49 U.C. DAVIS L. REV. 1335, 135859 (2016) (discussing high cost and transactional uncertainty of stream adjudications).
105. E.g., Western States Water Council, Resolution (Position No. 376) In Support of Indian Water Rights Settlements (Oct. 10, 2014) (on file with author).
106. See generally Sly, supra note 42, at 47, 44-54.
107. 31 U.S. (6 Pet.) at 594.
Of the other parties involved, the United States is the most complex. As prime mover of the nation's western expansion, it implemented a series of policies designed to remove tribal populations to small corners of their pre-expansion aboriginal homelands. 108 These homelands were then made ready for non-tribal settlement through the construction of massive reclamation and other water infrastructure projects. 109 As legacy of this history, the United States today owes a myriad of public responsibilities, in addition to its role as fiduciary of the federaltribal trust. 110 Historian Patricia Nelson Limerick describes the government's arguably untenable position as follows:
By 1980, Interior's jurisdiction was a crazy mosaic. Overseeing the Fish and Wildlife Service, the National Park Service, the Bureau of Mines, the Geological Survey, the Bureau of Indian Affairs, the Bureau of Land Management, and the Bureau of Reclamation, the secretary of the interior wore more hats than a head could support. The interests of mining, for instance, were often in conflict with the interests of wildlife, of Indian people, and of national parks. Beyond the likelihood of conflicting interests among bureaus, the range of each bureau could make the head spin. 111
The Supreme Court has offered little guidance in sorting out management of this mess. 112 Instead offering its own complications by affirming the primacy of state and local water allocation laws. 113
As a result of this network of sovereign and proprietary rights, statutory and common law duties, and concurrent status as sovereign, developer, and trustee, there are few water issues in which the United States does not have a vested interest. 114 As sovereign, it must act as steward of national interests, which includes enactment and implementation of water and natural resource protection systems
108. E.g., COHEN'S, supra note 2, at 4 (discussing sweep of tribal land losses); See also COHEN'S, supra note 2, at 23-30, 38-41, 79-84 (discussing arc of federal policies implementing the diminishment of tribal lands and resources); Harvard Project on American Indian Economic Development, supra note 62, at 95-98.
109. See supra notes 1, 21-23 and accompanying text.
110. E.g., Colby, supra note 64 at 14-18; Cohen, supra note 2, at 412-416.
111. Patricia Nelson Limerick, THE LEGACY OF CONQUEST: THE UNBROKEN PAST OF THE AMERICAN WEST 307 (2011). Accord Mather, supra note 1, at 305 ("Clearly, many [federal programs dealing with water resources development and management] overlap and conflict. It is certain that even the agencies involved do not know of all possible conflicting or supporting programs in other agencies or, even possibly, the full ramifications of the programs they have been authorized to establish or enforce within their own agencies.").
112. See Nevada v. U.S., 463 U.S. 110, 128 (1983) ("The Government does not 'compromise' its obligation to one interest that Congress obliges it to represent by the mere fact that it simultaneously performs another task for another interest that Congress has obliged it by statute to do."); E.g., id. at 135 (providing an example for the same point).
113. See California v. U. S., 438 U.S. 645, 656 (1978).
114. See, e.g., Mather, supra note 1, at 302 ("Current federal water laws and programs are quite complex. More than forty federal agencies have some water programs or statutory responsibilities and the programs keep changing.").
such as the Clean Water Act 115 and the Endangered Species Act. 116 Using its financial and scientific resources, the government also acts in its sovereign capacity by funding technical studies intended to better inform water resource management and environmental protection efforts. 117 As proprietor, the government acts to protect its rights appurtenant to federal reserved lands and water infrastructure 118 and, likewise, to fulfill its contractual obligations to derivative property right holders who enjoy the use of those federal assets. 119 Finally, as trustee, it has an obligation to represent the interests of tribal sovereigns who hold reserved rights to water resources as well as jurisdictional authorities relating to the use and enjoyment of those resources. 120 The government's balance of these varied and conflicting interests is driven less by the law and more by executive and legislative branch politics and policy, with the courts simply playing referee pursuant to statutory, common law, or constitutional standards. 121 In short, government tends to be on no one party's side in any water dispute but, instead, manages what it views as its interests in accord with predominating law, policies, and politics.
While the federal government could be understood as a single entity with a myriad of interests, non-tribal property right claimants are a myriad of entities with a singular—though individually held—interest, i.e., a property right in the use of water, a right which is generally governed by and within a state law water allocation system. Such use-rights are held by towns and cities, irrigators and ranchers, energy producers and power plants, large industry, and individual homeowners. 122 Given the nature of state verses federal politics, these claimants generally have a strong interest in protecting the state's regulatory and management role. 123 Echoing the federal-state conflict line, this tendency can put tribal and nontribal claimants at odds.
115. See 33 U.S.C. § 1251(a) (2012).
116. See 16 U.S.C. § 1531 (2012).
117. See, e.g., U.S. BUREAU OF RECLAMATION, RECLAMATION COLLABORATES WITH COLORADO RIVER BASIN TEN TRIBES PARTNERSHIP IN TRIBALLY FOCUSED WATER STUDY (2013); U.S. BUREAU OF RECLAMATION, COLORADO RIVER BASIN TEN TRIBES PARTNERSHIP TRIBAL WATER STUDY (2016).
118. See, e.g., United States v. New Mexico, 438 U.S. 696 (1978) (construing scope of federal reserved rights appurtenant to forest service lands); Cappaert v. United States, 426 U.S. 128 (1976) (seeking injunction against groundwater diverters for purposes of protecting federal reserved water right and associated interests).
119. See supra note 107 (enforcing federal reclamation contract obligations); see also, e.g., Pyramid Lake Paiute Tribe v. Morton, 354 F. Supp. 252, 261 (D.D.C. 1972) (reversing agency decision regarding promulgation of flow regulation affecting Newlands Reclamation Project for failure to properly balance federal obligations regarding prior adjudication decrees, federal fiduciary obligations to tribes, and the contract rights of irrigators using reclamation project waters).
120. Id.; see also Criteria and Procedures for the Participation of the Federal Government in Negotiations for the Settlement of Indian Water Rights Claims, Fed. Reg. (Mar. 12, 1990), https://www.usbr.gov/native/policy/12mar1990_fedreg_indianwaterrights.pdf ("Indian water rights are vested property rights for which the United States has a trust responsibility, with the United States holding legal title to such water in trust for the benefit of the Indians.")
121. See supra note 118.
122. Colby et al., supra note 64, at 32.
123. See, e.g., Colby et al., supra note 64, at 32; cf. Sly, supra note 42, at 49-53 (discussing state as parens patriae).
Finally, use-value advocates also have a significant role in these matters. Environmental groups and recreational users are not frequent participants in tribal water disputes, but they are regular participants in water fights more generally, typically relying on federal statutory systems that secure public participation rights to advocate positions framed as serving the public's interest, such as environmental protection and government and corporate accountability. 124
4. The Interests Aggregated
Much of the complexity summarized above arises out of, on the one hand, the unique relationship between tribal sovereigns and the federal government and, on the other hand, the unique competition between tribal and state sovereigns. Viewing it as a whole, its contours drape a generalized structure built on sovereignty and proprietary considerations: Sovereignty concerns (primarily represented by tribal, state, and federal government parties) that focus on questions of control, authority, autonomy, and certainty; and proprietary concerns (primarily represented by use-right claimants, both tribal and non-tribal, and use-value advocates such as environmental or other policy organizations) that focus on maximal realization of an individualized material value (i.e., amount of water reliably obtained for a desired use-right or use-value, such as for municipal, agricultural, recreation, fish and wildlife, or other purposes).
From tribes (seeking a "measured separatism" and dynamic intergovernmental relations) to states (seeking to protect a privileged legal position with respect to the implementation of administrative regulatory systems necessary for ecological and economic health) to the United States (acting on its crazy quilt of interests and obligations) and all the use-right and use-value interests entangled among them, each party brings legitimate concerns to the table. These interests are each informed and shaped by history, culture, law, and context, and each, in turn, shapes the nature of the conflict to be addressed—a conflict that typically goes far beyond the water resource itself and, instead, ought to be viewed as part of ongoing efforts to reconcile America's colonial past with its constitutional present. 125
In short, this is about more than water. 126
C. Traditional Tactics and Paths to Resolution
Parties typically seek resolution among this rowdy set of interests by reliance on traditional adversarial means, i.e., litigation or the nominally more cooperative approach of formal negotiations. Regardless of approach, the law requires resolution of reserved rights claims to include finality and enforceability of right. 127 Exclusive focus on enforceable finality, however, tends to deepen conflict
124. Colby et al., supra note 64, at 3233.
125. See supra note 40.
126. McCool, supra note 27, at 7-9 (discussing water settlements as marking a "second treaty era.")
127. E.g., Nevada v. U.S., 463 U.S. 110, 129 n.10 (1983) ("The policies advanced by the doctrine of res judicata perhaps are at their zenith in cases concerning real property, land and water."); Criteria and Procedures for the Participation of the Federal Government in Negotiations for the Settlement of Indian Water Rights Claims, supra note 119, at 9223 ("Settlements should be completed in a way that all outstanding water claims are resolved and finality is achieved.")
by miring the parties in pie-cutting zero-sum games, thus restricting combatants to distributive competition rather than facilitating integrative cooperation. Each approach, in its own way, has proven itself to be less than ideal.
For much of the Twentieth Century, litigation has been the primary tool for addressing reserved rights to water, 128 but such reliance has proven expensive, polarizing, and not certain to provide clear or transportable results—in a word, unsatisfactory. The adjudication of the rights of the Eastern Shoshone and Northern Arapahoe tribes often serves as an illustration of the limited efficacy of litigation: After thirty-seven years, including seven trips to the Wyoming Supreme Court, the tribes are still unable to fully utilize their substantial decreed water right without continued conflict and uncertainty. 129 Meanwhile, lingering uncertainty due to adversarial relations continues to inhibit economic growth and forestall ecological restoration efforts. 130 Another illustration of litigation's limitations can be found in northern New Mexico, where it took approximately twenty-seven years to produce a useable legal standard for determining Pueblo water rights, 131 after which a separate district court concluded it was not bound by the product of those efforts leaving the parties free to litigate the questions anew. 132 Indeed, underscoring a level of frustration with his state's experience, former New Mexico State Engineer John D'Antonio estimated it would take "another 600 years to complete the adjudication of water rights" within its jurisdiction if it continued at its current pace. 133
With these experiences in mind, it is not hard to understand why parties started taking a step back and moved from the courtroom to the conference table. 134 In 1979, for example, Montana established its Reserved Water Rights Compact Commission to represent the state in efforts to negotiate settlements of outstanding reserved right claims. 135 Around that same time, the Conference of Western Attorneys General reached out to the Native American Rights Fund to, likewise, explore the development of standard practice and procedural norms for securing enforceable settlements, which resulted in the 1988 publication of the RESERVED
128. See, e.g., Burton, supra note 8, at 48-58 (indicating only fourteen of fifty tribal water conflicts involved formal negotiation efforts and, of those, ten included litigation as well). Efforts to resolve claims through negotiation were not meaningfully pursued until after promulgation of the criteria and procedures for federal participation in tribal water settlements. See generally supra note 119.
129. E.g., McCool, supra note 27; Anne MacKinnon, Eyeing the Future on the Wind River, 15 WYO. L. REV. 517 (2015); Jason Robison, Wyoming's Big Horn General Stream Adjudication, 15 WYO. L. REV. 244 (2015).
130. MacKinnon, supra note 128, at 518, 520.
131. New Mexico filed the Aamodt adjudication in 1966, and the parties thereafter completed trial litigation over questions relating to a methodology for quantifying Pueblo water rights by 1993. See New Mexico ex rel. State Eng'r v. Aamodt, et al., 537 F.2d 1102 (10th Cir. 1976); New Mexico ex rel. State Eng'r v. Aamodt, et al., 618 F. Supp. 993 (D.N.M. 1985); New Mexico ex rel. State Eng'r v. Aamodt, et al., No. CV-6639 (D.N.M., Dec. 29, 1993) (Memorandum Opinion and Order).
132. New Mexico ex rel. State Eng'r v. Abousleman, No. 83-1041 (Dist. Ct. N.M. Oct. 4, 2004).
133. Lora Lucero and A. Dan Tarlock, Water Supply and Urban Growth in New Mexico: Same Old, Same Old or a New Era?, 43 NAT. RESOURCES J. 803, 819 (2003).
134. Cf. Greetham, supra note 5, at 602 n.27 (discussing tribal motivations for turning to negotiated resolutions).
135. Mont. Code Ann. § 2-15-212 (1979).
WATER RIGHTS SETTLEMENT MANUAL 136 and years of coordinated tribal-state advocacy at the federal level for deeper federal commitment to resolution of reserved rights claims. 137
Since the 1980s, the value of the multi-party and congressionallyapproved negotiated settlement has been accepted, almost as an article of faith, as the preferred method of formal tribal reserved right dispute resolution, though the record suggests one may want to hold to that faith with something less than righteous enthusiasm. 138 Since, 1978, when Congress approved the Ak-Chin Indian Water Rights Settlement Act, 139 the first express settlement of tribal water rights claims, only forty-four of the more than 560 federally recognized American Indian tribes have obtained a formal settlement of their claims, 140 with twelve settlements accomplished during the Obama Administration alone. 141 This progress marks a significant collective achievement, but it remains slow work. As the Western Water Policy Review Advisory Committee observed nearly twenty years ago, negotiation has its own limitations:
[N]egotiated settlements are not an easy solution. They rely on the willingness of parties to negotiate. Delays and political maneuvering are often considerable. Settlements generally must be ratified by the Congress and, in most instances, need judicial recognition to be effective. Most importantly, settlements generally rely on large infusions of federal funds to provide additional water for tribes without damaging the rights of other water users. Federal budgetary concerns will probably restrict funding of new water settlements and project-based solutions. Accordingly, future negotiators will have to be even more creative. 142
The overall pace of settlement seems to justify the Committee's cautionary tone and, more dauntingly, suggests—like New Mexico's former State Engineer once estimated for his state 143 —it may take as much as another half a millennium to resolve the reserved right claims of the more than five hundred
136. Sly, supra note 42.
137. WESTERN STATES WATER COUNCIL & NATIVE AMERICAN RIGHTS FUND, THE IMPORTANCE OF INDIAN WATER RIGHTS SETTLEMENT FUNDING (2014).
138. Cf. Daniel McCool, Intergovernmental Conflict and Indian Water Rights: An Assessment of Negotiated Settlements, 23 PUBLIUS 85, 9293 (1993) (noting lack of methodological assessment of effectiveness of negotiated settlements in obtaining identified goals).
139. Ak-Chin Indian Water Rights Settlement Act, Pub. L. No. 95328, § 1582, 92 Stat. 409 (1978).
140. Charles V. Stern, CONG. RESEARCH SERV., R44148, INDIAN WATER RIGHTS SETTLEMENTS 6-8 (2015) (tabulating settlements approved by Congress as of that publication date); see also Pub. L. 114322, supra note 28 (including approval of new water settlements relating to the claims of four tribes, i.e., Blackfeet Tribe, Chickasaw Nation, Choctaw Nation, and Pechanga Band, while completing steps necessary for the fulfillment of the prior settlement of the claims addressed in the San Luis Rey Indian Water Rights Settlement, see infra note 192).
141. U.S. Dep't of The Interior, SECRETARY JEWELL, TRIBAL LEADERS MARK ENACTMENT OF FOUR ADDITIONAL WATER RIGHTS SETTLEMENTS FOR INDIAN COUNTRY (2017).
142. Denise Fort et al., WATER IN THE WEST: CHALLENGE FOR THE NEXT CENTURY 349 (1998).
143. See Lucero & Tarlock, supra note 132 and accompanying text.
federally recognized tribes that have not yet converted (or, for many, even yet stated) their claims. That is a sobering prospect.
Thus, more than a century after the Court decided Winans and Winters, we find ourselves acknowledging tribal sovereignty and proprietary rights as a general matter but having produced few specifically-defined and enforceable articulations of those rights. That lack of finality notwithstanding, tribal and non-tribal communities, public water suppliers, resource users, and others continue to wrestle with exigencies driven by shifting use-value priorities, climate variability, and aging infrastructure—exigencies that demand analysis and decision, even if only provisionally. This is a circumstance ripe for creative thinking and reform.
III. A FRAMEWORK FOR WATER PLANNING AS A SUPPLEMENTAL APPROACH: ITS EVOLUTION AND APPLICATION IN THE TRIBAL-STATE CONTEXT
Tribal water right litigation and negotiation efforts are fundamentally organized around that single, practical question: What is the legally actionable definition of each tribe's reserved right as applied within a fact pattern that typically has been shaped by state law normative water right systems and competing non-tribal legal, equity, and policy interests? 144 Answering the question, though, is not the end itself; the question serves to organize efforts intent on reconciling competing interests within a framework with which our legal systems can deal, i.e., rights. Our aspiration in resorting to those mechanisms is to create a level of certainty that will allow our pursuit of material goals, ideally without prejudice to or caused by our neighbor, e.g., development of water supplies, restoration of habitat, support for diverse economic development efforts, etc. Leaving aside the legal system's focus on rights and the ultimate requirement for enforceable finality, water planning efforts are generally driven by the same aspiration. 145 Given the demonstrable limitations of our legal systems for efficiently achieving the goal, water resource planning appears to be a reasonable supplemental approach.
A. Water Planning as an Evolving Resource Management Tool
Water planning has become an increasingly popular tool for assessing water resource policy and management challenges and options. 146 Evolving from an engineering tool originally used to develop disaggregated, single-purpose projects, 147 water planning today requires an interdisciplinary and comprehensive approach to address a growing list of scientific, political, and use-value
144. See Greetham, supra note 5 at 599 n.17; McCool, supra note 27 and accompanying text.
145. See supra note 3.
146. Craig Bell & Jeff Taylor, WATER LAWS AND POLICIES FOR A SUSTAINABLE FUTURE: A WESTERN STATES' PERSPECTIVE 21 (2008), http://www.westernstateswater.org/wpcontent/uploads/2012/10/laws-policies-report-final-with-cover-1.pdf; see also Vanessa Cassado-Peréz, et al., All Over the Map: The Diversity of Western Water Plans, CA. J. OF POL. & POL'Y 7(2) 3 (2015) (noting that water planning now appears to be predominantly performed by state governments).
147. E.g., Morris, supra note 3, at 120-121 (discussing Gilbert F. White, STRATEGIES OF AMERICAN WATER MANAGEMENT, 4-5 (1969)).
uncertainties. 148 This evolution in practice and utility demonstrates the plasticity of the tool itself, suggesting its amenability to adaptation for application to a variety of fact and policy challenges.
For all their diversity in application, 149 today's water plans fundamentally involve a uniform set of elements, i.e., a quantitative and qualitative assessment of available water supplies, a characterization of current and projected future demands, an analysis of the adequacy of supplies relative to demands, and an exploration and comparative evaluation of strategic options for closing any shortfall, as judged against identified policy goals or "performance objectives." 150 Engineering professor Jay Lund notes that building on this common foundation, water planning can be adapted to specific needs or approaches, including traditional single-purpose planning, benefit-cost planning, multi-objective planning, and— most importantly for our purposes—conflict resolution planning. 151
Lund describes conflict resolution planning as uniquely serving "to reconcile individuals or groups with conflicting objectives for water management to a single plan or plan strategy." 152 He notes these efforts typically occur in a quasi-adversarial context in which "parties have alternatives to participating in a formal planning process," and typically emphasize the value of recruitment, such as requirements that the participants "communicate, understand, and negotiate." 153 This approach generally invests "considerable emphasis, effort and time . . . to establish broad confidence and communication in both technical and decisionmaking processes," 154 again emphasizing the need for recruitment of would-be adversaries to a more collaborative forum. Given the fact-intensive nature of the planning exercise and the increased prioritization of public engagement, the tool may even be superior to traditional adversarial modes for certain purposes.
As Schlager and Blomquist argue, adversarial and collaborative modes of engagement are "'psychologically incompatible,'" with the former rewarding "'strategic, and even opportunistic, communication and withholding of information—and a good deal of distrust against potential misinformation'"—while the latter "'requir[es] creativity, effective communication, and mutual trust.'" 155 Given these distinctions between adversarial and collaborative modes, "[i]nformation asymmetries can contribute to creating an atmosphere of distrust and deception, discouraging individuals from working together to find outcomes superior to what they currently achieve." 156 In the tribal-state water conflict
148. Id. at 122; see also Miller, supra note 3, at 395-396.
149. Cassado-Peréz, supra note 145, at 6-14.
150. Jay R. Lund, APPROACHES TO PLANNING WATER RESOURCES 2-3 (Mar. 30, 2006) (unpublished paper), http://www.waterboards.ca.gov/centralvalley/water_issues/salinity/library_reports_programs/lun d_water_resource_planning.pdf.; accord Greetham, supra note 5, at 606-607.
151. Lund, supra note 149, at 3, 5-6.
152. Id. at 5.
153. Id.
154. Id.
155. Schlager & Blomquist, supra note 6, at 6-7 (quoting Fritz Scharpf, GAMES REAL ACTORS PLAY (1997)).
156. Id. at 7.
context, political scientist Lloyd Burton similarly observes that the combatants do not always appear focused on resolution as much as competitive position:
[F]or one or more parties in a dispute, settlement may not be a primary goal. Indeed, keeping the dispute unsettled, active, off balance, and costly to all concerned may in some situations be the preferred strategy. Also, in the disputing process each party plans and executes strategy to get the dispute into the friendliest forum under the most favorable conditions possible at the lowest costs to themselves and the greatest cost to their opponents. In short, each party tries to manage the dispute (regarding forum, transaction costs, movement toward or away from settlement, at so on) to its own advantage. 157
Indeed, given the sweeping nature of the issues and history of distrust, relegation of tribal and state actors to adversarial forums may compound the typical challenges arising from competition. Certainly Schlager's, Blomquist's, and Burton's observations echo concerns voiced by the Western Water Policy Review Advisory Committee twenty years ago. 158
Conversely, properly structured opportunities for cooperative fact-finding and information distribution and analysis outside of or insulated from adversarial contexts, i.e., properly structured planning exercises, can facilitate breaking down the distrust and gamesmanship inimical to building consensus and collaboration. 159 Admittedly, water planning has no legal force and can provide no enforceable finality, 160 which can serve as a legitimate basis for criticism. 161 Critics have also pointed to the general lack of uniform water planning methodologies as well as structural challenges to reliable information gathering and implementation. 162 These critiques and observations are valid, but they also serve primarily to underscore the fact that water planning remains an evolving tool, which may be part of its value—allowing a flexibility to permit locally appropriate exercises in joint fact finding, issue spotting, and policy debate. 163 Indeed, given the burden and pace of achieving enforceable finality through formal legal mechanisms, the opportunity for interim or supplemental progress through enhanced intergovernmental engagement has manifold attractions.
And it is not an entirely new idea. In its 1978 National Indian Water Policy, the United States Department of the Interior recommended ensuring tribal
157. Burton, supra note 8, at 36.
158. See Fort, supra note 141 and accompanying text.
159. E.g., Lawrence Susskind, Alejandro E. Camacho & Todd Schenk, Collaborative Planning and Adaptive Management in Glen Canyon: A Cautionary Tale, 35 COLUM. J. ENVTL. L. 1, 29-54 (2010) (discussing the U.S. Department of the Interior's failure to adhere to specific "best practices" with respect to, for example, joint fact-finding and group decision making in its effort to implement a collaborative adaptive management program among diverse water resource interests and stakeholders).
160. Cassado-Peréz, supra note 145, at 18.
161. Lucero & Tarlock, supra note 132, at 823.
162. Cassado-Peréz, supra note 145, at 18; see also Bell & Taylor, supra at note 144, at 22-24 (discussing criticisms made of water planning in New Mexico and California as well as watershed planning, in general).
163. Susskind, supra note 158, at 2-3; Lund, supra note 149, at 5-6.
participation in water resource planning development and making federal technical resources available for such purposes. 164 While this policy was never fully implemented, federal technical resources are available to tribes for purposes of water development planning, 165 which tribes have used to deepen capacities for water resources assessments and to develop and implement supply and restoration projects. 166 However, the skepticism that tends to affect tribal regard for legal processes 167 can tend also to adversely impact tribal willingness to engage in intergovernmental planning efforts; as tribal planner Sharon Hausam puts it, "[a]fter centuries of being excluded, ignored, or misunderstood in decision-making processes, it is reasonable to doubt that regional planning might be an improvement." 168 Hausam's comments help to re-ground discussion of engagement efforts in the same history that contributes to the complexities affecting tribal-state water conflict generally. 169
B. State Water Planning and Tribal Engagement: Experiences in California, New Mexico, and Oklahoma
As water management challenges have continued and compounded, states increasingly have turned to water planning to build support for initiatives and to better inform management decisions. 170 However, the question remains, how well have they fared in engaging tribes in state water planning efforts? The next section examines the experience in three states that seem so far to have made the most effort in this regard: California, New Mexico, and Oklahoma.
Collectively, these three states have 171 federally recognized American Indian tribes within their borders—nearly a third of all federally recognized tribal governments throughout the United States. 171 Among them, however each differs
164. Thomas W. Fredericks, Developing a National Indian Water Rights Policy, in BEST PRACTICES FOR PROTECTING NATURAL RESOURCES ON TRIBAL LANDS 1, 19-20 (Aspatore, 2016).
165. See, e.g., U.S. Bureau of Indian Affairs, Branch of Water Resources, https://www.bia.gov/WhoWeAre/BIA/OTS/NaturalResources/Water/index.htm (last visited Jan. 18, 2017); U.S. Geological Survey, USGS and Tribes Work Together to Gain Water Knowledge, https://water.usgs.gov/coop/tribes_2014.pdf (last visited Jan. 18, 2017); U.S. Geological Survey, PNW Tribal Water Resources Assessment, https://wa.water.usgs.gov/projects/pnwtribal/ (last visited Jan. 18, 2017); U.S. Bureau of Reclamation, Native American Affairs, https://www.usbr.gov/native/ (last visited Jan. 18, 2017).
166. See, e.g., Office of the Tribal Water Engineer Eastern Shoshone & Northern Arapahoe Tribes, Drought Mitigation Plan, http://wrir.wygisc.org/content/drought-mitigation-plan (last visited Jan. 18, 2017); Spokane Tribe, Water and Fish Program, http://www.spokanetribe.com/dnr-water (last visited Jan. 18, 2017); CPN Public Information Office, CPN Water Plan an Example for Oklahoma Tribes, CITIZEN POTAWATOMI NATION, Feb. 26, 2013 (on file with author).
167. See Pisani, supra note 57 and accompanying text; Berkey, supra note 57 and accompanying text; Burton, supra note 58 and accompanying text.
168. Sharon Hausam, MAYBE, MAYBE NOT: NATIVE AMERICAN PARTICIPATION IN REGIONAL PLANNING, IN RECLAIMING INDIGENOUS PLANNING 162, 169 (Ted Jojola, et al. eds., 2013).
169. See, e.g., supra notes 32-76 and accompanying text.
170. See, e.g., Meghan Leemon, Western Water Planning Processes: Lessons for Colorado, 17 U. DENV. WATER L. REV. 368, 368 (2014) (noting that "[i]n the west, Arizona, Colorado, and Washington are the only states without comprehensive water plans"); see also Bell &Taylor, supra at note 145, at 22.
171. Indian Entities Recognized and Eligible to Receive Services from the United States Bureau of Indian Affairs, 81 Fed. Reg. 5019 (Jan. 29, 2016); See also NATIONAL CONFERENCE OF STATE
from the other with respect to tribal populations and land bases. For example, less than one percent of California's land base is formally recognized as tribal land, 172 much of which is isolated or otherwise extensively checker-boarded; while a greater percentage of lands within Oklahoma are tribally held, 173 those lands, too, are largely checker-boarded and non-contiguous. In contrast, nearly eleven percent of lands within New Mexico is tribally held, 174 much of it in substantially contiguous parcels.
These variations in size and degree of contiguity contribute to jurisdictional and land ownership diversities that can pose different challenges to water resource management efforts. Each state also varies in its demographics. As indicated in Figure 1, the non-Hispanic white population makes up only a large plurality in California and New Mexico while such population is the significant majority in Oklahoma. Meanwhile, the American Indian population of California is only one percent of the state's total population, less than the national proportion of one and one-fifth percent, 175 while New Mexico and Oklahoma have American Indian populations of approximately nine percent, each.
| Fig. 1 - State Population Demographics170F | | | | |
|---|---|---|---|---|
| | Total population | American | Non-Hispanic | Hispanic only |
| State | | Indian only | white only | |
| California | 37,254,522 | 1.0% | 40.1% | 37.6% |
| New Mexico | 2,059,198 | 9.4% | 40.5% | 46.3% |
| Oklahoma | | | | 8.9% |
176
These demographics reflect each states' varied ethnic, cultural, and legal histories, all of which impacts their particular relations with the American Indian tribes within their borders. With this as background, the following discussion examines each of these state's individual efforts to engage tribes in their water plan efforts.
LEGISLATURES, FEDERAL AND STATE RECOGNIZED TRIBES (Oct. 2016), http://www.ncsl.org/research /state-tribal-institute/list-of-federal-and-state-recognized-tribes.aspx .
172. U.S. Forest Serv., Appendix D: Indian Nations D-3 (1990) https://www.fs.fed.us/people/tribal/tribexd.pdf. (Of California's total land base, 520,049 acres are tribal lands, 66,769 are individually allotted tribal lands, and 808 acres are other federal-tribal lands).
173. See Id. (illustrating that of Oklahoma's land base, 96,839 acres are held by tribes, 1,000,165 acres are allotted lands, and 2,298 acres are other federal-tribal lands, for an overall share of 2.5%).
174. See Id. (illustrating that of New Mexico's land base, 7,252,326 acres are tribal lands, 630,293 are individually allotted lands, and 270,276 are other federal-tribal lands).
175. U.S. CENSUS BUREAU, QUICK FACTS: UNITED STATES, (2010), https://www.census.gov /quickfacts/table/PST045216/00.
176. See U.S. CENSUS BUREAU, QUICK FACTS: CA, (2010), http://www.census.gov/quickfacts /table/PST045216/06; See also U.S. CENSUS BUREAU, QUICK FACTS: NM, (2010) http://www.census.gov/quickfacts/table/PST045216/35; See also U.S. CENSUS BUREAU, QUICK FACTS: OKLA., (2010) http://www.census.gov/quickfacts/table/PST045216/40.
1. California
The United States' possession of California began with the signing of the Treaty of Guadalupe Hidalgo in 1848 at the close of the Mexican-American War. 177 As the ink was drying on that treaty, gold was discovered at Sutter's Mill, "prompting a huge influx of Americans seeking their fortunes" and violent conflict between the new migrants, who were backed by the United States military, and the indigenous American Indian peoples who resisted displacement. 178 Of this period of violence and dispossession, California historian Hubert Bancroft said, "[i]t was one of the last human hunts of civilization, and the basest and most brutal of them all." 179 While the federal government made preliminary efforts to secure treaties with the tribes of the region, California's objection to tribal land assignments and reservations scuttled the enterprise. 180 Meanwhile, the California government enacted and implemented laws to effect the disenfranchisement of tribal peoples and expedite the expropriation of tribal resources. 181 As a result, tribal populations and holdings were decimated, leaving the vast majority of American Indians "landless" by the dawn of the Twentieth Century. 182 Federal efforts between 1906 and 1934 made some progress in restoring lands and otherwise supporting tribal populations, 183 but the explosion of California settlement was disastrous for American Indian tribes. Legal scholar Carol Goldberg and sociologist Duane Champagne make the point that, following the gold rush era and "[t]hroughout much of the Twentieth Century, California Indians have been administratively, culturally, economically, and politically disadvantaged, even compared with tribes elsewhere in the United States." 184
During this same period of time, the United States responded to local agricultural producers' call for the development of massive water infrastructure— resulting in the Central Valley Project, a quintessential Bureau of Reclamation project. 185 As historian Donald Worster argues, the Central Valley Project was not only instrumental in engineering water resources in support of epically scaled California agricultural development, it also served to mature the Bureau of Reclamation into "the technical master of water in the richest agricultural region on
177. Treaty of Guadalupe Hidalgo, Mex.-U.S., art. 5, Feb. 2, 1848, , 9 Stat. 922.
178. Veronica E. Velarde Tiller, TILLER'S GUIDE TO INDIAN COUNTRY: ECONOMIC PROFILES OF AMERICAN INDIAN RESERVATIONS 359-60 (2005). Accord COHEN'S, supra note 2, § 1.03[5], at 58 ("The discovery of gold in California transformed the non-Indian migration westward into a stampede.").
179. Hubert Howe Bancroft, HISTORY OF CALIFORNIA: VOL. VII, 1860-1890 474 (1890).
180. COHEN'S, supra note 2, § 1.03[5], at 58-59.
181. See An Act for the Government and Protection of Indians, 1850 Cal. Stat. 408-10 (1850); ); Kimberly Johnston-Dodds, Early California Laws and Policies Related to California Indians, Cal. Res. Bureau, CRB-02-014, at 5 (2002), https://www.library.ca.gov/crb/02/14/02-014.pdf, ("The 1850 Act and subsequent amendments facilitated removing California Indians from their traditional lands, separating at least a generation of children and adults from their families, languages, and cultures (1850 to 1865), and indenturing Indian children and adults to Whites.")
182. Tiller, supra note 177, at 360; Accord COHEN'S, supra note 2, § 1.03[5] at 59.
183. Id.
184. Goldberg and Champagne, supra note 72, at 44.
185. C.f., Reisner, supra note 21, at 9-10.
earth . . . the indispensable partner of western industrial farming." 186 In other words, through building some of the West's most storied water infrastructure, California proved to be the incubator of the federal government's primary western water developer.
Today, California has within its borders 109 federally recognized American Indian tribes and several other federally unrecognized tribal communities. 187 Few of these tribes have significant contiguous land holdings, and poverty and limited access to infrastructure continue to pose challenges for the health and stability of many tribal communities. 188 At the same, some tribes located near urban centers have been able to capitalize on gaming, 189 which has had significant positive local and statewide economic impact. 190 Perhaps more importantly, success in economic development has provided means for strengthening tribal institutions and potentially enhancing the exercise of tribal sovereignty in an intergovernmental context. 191
California has a comprehensive water law system, which includes provisions for the conduct of stream adjudications, 192 and has secured water rights settlements with several American Indian tribes, i.e., the La Jolla, Ricon, San Pasquale, Pauma, and Pala Bands of Mission Indians, 193 the Pechanga Band, 194 and the Soboba Band of Luiseno Indians. 195 Through its Water Resources Control Board, the state also develops a comprehensive statewide water plan 196 and provides financial, technical resources, and facilitation services support to regional water planning efforts. 197 And in recent years, the state has made significant tribal outreach efforts. 198
186. See Donald Worster, RIVERS OF EMPIRE: WATER, ARIDITY, AND THE GROWTH OF THE AMERICAN WEST 256 (1985).
187. See supra note 170.
188. E.g., Advisory Council on California Indian Policy, THE ACCIP ECONOMIC DEVELOPMENT REPORT: ECONOMIC DEVELOPMENT ISSUES OF CONCERN TO INDIANS IN CALIFORNIA 1 (1997).
189. Id.; see also Mark Fogarty, "California Controls 25 Percent of All Indian Gaming Revenues," Indian Country Media Network (Mar. 25, 2016) (on file with author). Indeed, modern tribal gaming can be said to have originated among California tribes. California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987) (preempting state effort to shut down tribal gaming operation conducted on tribal lands).
190. California Tribal Gaming Impact Study, AN UPDATED ANALYSIS OF TRIBAL GAMING ECONOMIC AND SOCIAL IMPACTS, WITH EXPANDED STUDY OF RSTF AND CHARITABLE EFFECTS, (Beacon Economics, LLC ed. 2014), https://cniga.com/wp-content/uploads/2017/02/EIS-Final-2014.pdf.
191. Goldberg & Champagne, supra note 72, at 57-59 ("The California tribes' political battle over gaming also created an economic base that makes it easier to implement their sovereignty, establishing sovereign realities "on the ground" that change options for both state and federal governments.").
192. See Cal. Water Code §§ 2000-2900 (1943); See, e.g., Decree, In re Determination of Rights to the Waters of the Scott River Sys., No. 30,662 (Cal. App. Dep't Sup. Ct. Jan. 16, 1980).
193. San Luis Rey Indian Water Rights Settlement Act, Pub. L. No. 100-675, 102 Stat. 4000 (1998); see also San Luis Rey Settlement Agreement Implementation, Pub. L. No. 114-322, § 3605 (2016); Supra note 28.
194. See Water Infrastructure Improvements for the Nation Act, supra note 28, §§ 3401-02.
195. Soboba Band of Luiseño Indians Settlement Act, Pub. L. 110-297, 122 Stat. 2975 (2008).
196. CAL. WATER CODE §§ 10000-10013 (West 2017).
197. See id. § 10013; Cal. Dep't of Water Res., Integrated Regional Water Management, http://www. water.ca.gov/irwm/ (last visited Sept. 24, 2017); Tom J. Lutterman, P.G., & Scott D. Woodland, P.E.,
Early in the state's outreach efforts, California water law practitioner Curtis Berkey made the case that Indian tribes "acknowledge that California's water planning process may present an opportunity for collaboration in devising water management plans that protect tribal resources and foster cooperation between Tribes and their neighbors," but are "too often seen as merely part of the general public, rather than sovereign entities with enforceable water rights under federal law." 199 He pointed to the Coachella Valley Water District's local water plan, for example, and explained it "contains no evidence that Indian Tribes were consulted in its formulation," notwithstanding the district's inclusion of four Indian reservations comprised of nearly 50,000 acres. 200 As he suggested, this omission appears conscious, since the plan admitted it made "no distinctions among 'Indian trust assets and other lands within District boundaries.'" 201 Berkey contrasted this approach with that of the North Coast Regional Water Quality Control Board, which was "making efforts to include Indian Tribes within that region in development of a water quality restoration plan for the Klamath River Basin, and has held at least one hearing on an Indian reservation affected by the plan." 202 Berkey's focus on the Coachella District's omission may have been prescient; four years after he made his case, the district was sued by the Agua Caliente Band of Cahuilla Indians, which has successfully asserted reserved rights to the groundwaters of the Coachella Valley. 203
Berkey suggested several factors that may contribute to the "near invisibility of Indian Tribes in state and regional water planning," 204 including the legal and political complexities of the issues, the history of distrust and hostility among the parties, and the absence of state statute obligating state agency consideration of tribal rights and interests. 205 However, California's efforts in recent years indicate it is taking serious steps toward ameliorating some of those concerns. 206
For example, in 2009, California formed a Tribal Communications Committee "to advise the California Department of Water Resources on how to
Regional Services: Technical Services Facilitation Services Regional Coordination, Cal. Dep't of Water Res. (n.d.), http://water.ca.gov/irwm/archives/docs/partnership/Module%202A_IRWM%20Regional %20Services.pdf (last visited Sept. 24, 2017). California also requires the development of Urban Water Management Planning Act. Id. §§ 10610,-10610.4.
198. E.g., Cal. Dep't of Water Res., California Water Plan Tribal Water Summit, ca.gov http://www.water.ca.gov/waterplan/tribal/tws/index.cfm (last visited Jan. 28, 2017). California water plan documents are generally available at http://www.water.ca.gov/waterplan.
199. Berkey, supra note 5, at 1, 3.
200. Id. at 2.
201. Id.
202. Id. at 3.
203. Complaint for Declaratory & Injunctive Relief at 1, Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., et al., Civ. No. 13-883 (C.D. Cal., May 14, 2013); Agua Caliente Band of Cahuilla Indians v. Coachella Valley Water Dist., et al., 849 F.3d 1262, 1265 (9th Cir. 2017), petition for cert. filed, (U.S. filed July 7, 2017) (No. 17-42).
204. Berkey, supra note 5, at 3.
205. Id. at 2-3.
206. E.g., Cal. Dep't of Water Res., CAL. WATER PLAN 2013 UPDATE Vol. 1, Ch. 4, at 4-20 to 4-22, http://www.water.ca.gov/waterplan/docs/cwpu2013/Final/05_Vol1_Ch04_Strengthening_Gov_Align.pdf.
better contact, and communicate with, the more than 160 Native American Tribes in California." 207 In that first effort, twenty-seven Tribal representatives participated in the formulation of a written tribal communication plan. 208 That same year, the first Tribal Water Summit was held under the water plan's auspices to provide a forum for relevant discussion and to facilitate coordination of tribal input. (It was in this forum that Berkey presented his paper.) 209 The summit produced a detailed set of Recommended Actions for Addressing California Native American Tribal Water Issues, 210 and thereafter, California took a series of responsive actions designed to increase government-to-government tribal-state engagement, including:
- the formation of a Tribal Advisory Committee, apparently supported by direct outreach to tribal leaders; 211
- Governor Brown's issuance of Executive Order B-10-11, which provided that "it is the policy of this Administration that every state agency and department subject to my executive control shall encourage communication and consultation with California Indian Tribes" and "permit elected officials and other representatives of tribal governments to provide meaningful input into the development of legislation, regulations, rules, and policies on matters that may affect tribal communities;" 213 and
- the establishment of a California Water Plan's Tribal Advisory Committee and establishment of the group's charter; 212
- pursuant to the governor's executive order, the creation of the Governor's Tribal Advisor Office, which reports directly to the state's chief executive with respect to oversight and implementation of "effective government-togovernment consultation between the Governor's Administration and California Tribes on policies that affect California tribal communities." 214
As of 2013, the California Water Plan Tribal Advisory Committee included representation from forty state and federally recognized tribes (15%), plus
207. Cal. Water Plan Tribal Water Summit, supra note 197. See id. (including within its count of tribes state as well as federally recognized tribes); see also id. at 4-20 (discussing plan's definition of "Native American Tribe").
208. See Tribal Commc'n Comm. (TCC), Tribal Communication Plan (Working Draft) 27 (Summer 2008), www.vision.ca.gov/docs/Tribal_Comms_Plan.pdf.
209. See Cal. Dep't of Water Res., Cal. Water Plan Tribal Water Summit (2009), http://www.water. ca.gov/waterplan/docs/tws/CTWS_ProceedingsFull_v2df_02-08-10.pdf.
210. Cal. Tribal Water Summit Planning Team, Recommended Actions for Addressing Cal. Native Am. Tribal Water Issues (Feb. 8, 2010), http://www.water.ca.gov/waterplan/d ocs/tws/CTWS_SummitNextStepsSorted_v7df_02-08-10.pdf.
211. Letter from Calif. Dep't of Water Resources Director Mark Cowin to "Dear Sir or Madam" (Nov.15,2010), http://www.water.ca.gov/waterplan/docs/tribal_engagement/inviteletter_tribalorganization.pdf.
212. Cal. Water Plan Tribal Advisory Comm. Group Charter (Aug. 6, 2011), http://www.water.ca.gov/waterplan/docs/tac/Final_TribalACCharter.pdf.
213. Calif. Exec. Ord. No. B-10-11 (Sept. 19, 2011),https://www.gov.ca.gov/news.php?id=17223.
214. Governor's Tribal Advisor Office, ca.gov, http://tribalgovtaffairs.ca.gov/.
two additional tribal organizations, 215 and in April of that year, the second Tribal Water Summit was held, organized primarily by tribal representatives. 216 The Proceedings from these summits suggest a significant level of substantive tribal engagement. 217
The 2013 update to the California Water Plan emphasized three fundamental policy goals: commitment to integrated water management, strengthening of government agency alignment, and investment in innovation and infrastructure. 218 Notably, the state policy goal of engagement and collaboration with tribal governments is woven throughout the plan's call for strengthening of government agency alignment, generally. 219 Meanwhile the California Water Plan Tribal Advisory Committee is preparing for the 2018 plan update. 220
2. New Mexico
Like California, the United States' possession of New Mexico began at the end of the Mexican-American War and the Treaty of Guadalupe Hidalgo. 221 While the United States' acquisition and establishment of the New Mexico Territory triggered its citizens' increased migration to the region, it was not nearly the stampede occasioned by the California gold rush. 222 During this period, the United States surveyed and confirmed American Indian tribal land title previously vested under Spanish and Mexican law, 223 offering basic protection for some tribal property interests and some stability in the early development of the region. However, the sovereign status of the individual tribal collectives and their relation to the federal common law of Indian affairs was not established until statehood, 224 which led to interim confusion regarding certain land transactions. 225 Still, such tribal status and land bases were confirmed within twenty years of statehood, and the federal law's protection of the rights and powers incident thereto has likewise
215. See CALIF. DEP'T OF WATER RES., CALIF. WATER PLAN UPDATE 2013: TRIBAL ADVISORY COMMITTEE MEMBER LIST (2013); see also CALIF. DEP'T OF WATER RES., CALIF. WATER PLAN UPDATE 2013 TRIBAL ADVISORY COMMITTEE: ACCOMPLISHMENTS 2011-PRESENT (2014).
216. See CALIF. DEP'T OF WATER RES., CALIFORNIA WATER PLAN TRIBAL WATER SUMMIT PROCEEDINGS 7-8 (2013).
217. See Id.
218. See CALIF. DEP'T OF WATER RES., CALIFORNIA WATER PLAN UPDATE 2013 INTEGRATED WATER MANAGEMENT: PRESENTATION TO CALIF. WATER COMM'N, 11 (2013).
219. E.g., Id. at 10; see also CALIF. DEP'T OF WATER RES., CALIF. WATER PLAN 2013 UPDATE: STRENGTHENING GOVERNMENT ALIGNMENT, supra note 205.
220. See, e.g., CALIF. DEP'T OF WATER RES., CALIFORNIA WATER PLAN UPDATE 2018: TRIBAL ADVISORY COMMITTEE ORIENTATION WEBINAR (Oct. 19, 2016).
221. See Treaty of Guadalupe Hidalgo, supra note 176.
222. See generally, supra note 177-78 and accompanying text.
223. See e.g., Act of July 22, 1854, ch.103, 10 Stat. 308 (1854) (appointing surveyor for evaluation of pre-treaty land claims); Act of December 22, 1858, chap. 5, 11 Stat. 374 (1858) (recognizing multiple Pueblo land grants); Act of February 9, 1869, ch. 26, 15 Stat. 438 (1869 (recognizing additional grant); Act of March 3, 1931, ch. 438, 46 Stat. 1509 (1931) (same).
224. See U.S. v. Joseph, 94 U.S. 614, 616-19 (1876); U.S. v. Sandoval, 231 U.S. 28, 36-49 (1913).
225. See e.g., Pueblo Lands Act of 1924, ch. 331, 43 Stat. 636 (Jun. 7, 1924); Pueblo Compensation Act of 1933, ch. 45, 48 Stat. 108 (May 31, 1933).
long been affirmed. 226 Today, while challenges remain, the tribes in New Mexico have reclaimed their collective position as a significant part of the region's economy, particularly with respect to tribal gaming; 227 meanwhile the State of New Mexico has evolved over the decades has developed a culturally diverse, fiscally conservative, and generally socially tolerant political atmosphere. 228
New Mexico, situated in the high plains desert of the American southwest, has a long history of water rights litigation and negotiation. Three of its oldest stream adjudications—the Lewis adjudication initiated in the 1956, 229 the Aamodt adjudication initiated in 1966, 230 and the Abeyta adjudication initiated in 1969 231 — are generations old and have each produced decrees of tribal water rights; in fact, of the twenty-three American Indian tribes with lands in New Mexico, 232 eight have obtained final and enforceable declarations of their water rights through either litigation 233 or negotiated settlement. 234 As already noted, the unique complexities of Pueblo water rights have so far hindered the development of a uniform standard for defining those rights, 235 but New Mexico has nonetheless established a fairly successful, if slow, 236 tradition of handling tribal water rights matters within traditional adversarial processes. It has also long worked to engage tribal governments in regular water planning efforts. 237
New Mexico's Office of the State Engineer (OSE) and its Interstate Stream Commission (Commission) produced New Mexico's first statewide water plan in 2003 238 and, since then, have produced updates every five years. 239 The
226. See New Mexico v. Aamodt, 537 F.2d 1102, 1111 (10 th Cir. 1976).
227. See Thaddieus W. Conner and William A. Taggart, The Impact of Gaming on the Indian Nations in New Mexico, 90 SOC. SCI. Q. 50 (2009).
228. See Marilyn C. O'Leary, Water Planning in New Mexico: Enigma, Paradox or Pattern?, 24 J. LAND RESOURCES & ENVT'L L. 343, 346-47 (2004).
229. State ex rel. State Engineer v. Lewis, 1973-NMSC-035, 508 P.2d 577.
230. N.M.
ex rel. Reynolds v. Aamodt, 618 F. Supp. 993 (D.N.M. 1985).
231. Procedural and Scheduling Order for Review of Proposed Settlement Agreement and Partial Final Judgement Rights of Taos Pueblo at 8, N.M. ex rel State Engineer v. Abeyta, 6:69-CV-07896-MV (D.N.M. 2013).
232. Indian Entities Recognized and Eligible to Receive Services From the United States Bureau of Indian Affairs, 81 Fed. Reg. 5019-23 (Jan. 29, 2016).
233. State ex rel. Martinez v. Lewis, 1993-NMCA-063, 116 N.M. 194, 861 P.2d 235 (1993) (decreeing water rights for the Mescalero Apache Tribe).
234. Claims Resolution Act of 2010, Pub. L. No. 111-291, 124 Stat. 3064 (providing for the settlement of water rights claimed, respectively, by the Navajo Nation and the Pueblos of Nambé, Pojoaque, San Ildefonso, Taos, and Tesuque); Jicarilla Tribe Water Rights Settlement Act, Pub. L. No. 102-441, 106 Stat. 2237 (providing for the settlement of water rights claimed by the Jicarilla Apache Tribe).
235. See supra notes 130-31 and accompanying text.
236. Lucero & Tarlock, supra note. 132.
237. NMSA 1978 §§ 72-14-3.1(J) (2003); 72-14-44(B) (1987).
238. Interstate Stream Commission, NEW MEXICO STATE WATER PLAN: WORKING TOGETHER TOWARDS OUR WATER FUTURE (Dec. 23, 2003), http://www.ose.state.nm.us/Planning/SWP/ PDF/2003StateWaterPlan.pdf, (hereinafter, "NM 2003 Plan.").
239. Interstate Stream Commission, WORKING TOWARD SOLUTIONS: INTEGRATING OUR WATER AND OUR ECONOMY, STATE WATER PLAN 2013 REVIEW (2013) [hereinafter NM 2013 Plan Review]; Interstate Stream Commission, REVIEW AND PROPOSED UPDATE N.M. STATE WATER PLAN (June 2008)
state developed the narrative substance of its first plan through extensive public input, including twenty-nine public meetings in which approximately 1,500 individuals participated, 240 the plan offered the following declaration:
The [Commission and OSE] shall consult directly with the governments of Indian nations, tribes and pueblos to formulate a statement of policy and process to guide: (1) coordination or integration of the water plans of Indian nations, tribes and pueblos located wholly or partially within New Mexico with the state water plan; and (2) final adjudication or settlement of all water rights claims by Indian nations, tribes and pueblos located wholly or partially within New Mexico. 241
This declaration is now included in New Mexico's water law statutes. 242
Contemporaneous with this declaration, New Mexico took steps to formalize mechanisms for intergovernmental tribal-state engagement and collaboration. The first step, in 2003, was Governor Bill Richardson's uniting of leaders from tribes throughout the state to sign a joint Statement of Policy and Process to, among other things, "establish and promote a relationship of cooperation, coordination, open communication and good will, and work in good faith to amicably and fairly resolve issues and differences." 243 Two years later, Governor Richardson issued Executive Order 2005-004, relating to the Statewide Adoption of Tribal Consultation Plans. 244 Finally in 2009, New Mexico enacted its State-Tribal Collaboration Act, which directed the establishment of tribal liaison positions in each agency of state government, the training of state employees in cultural competencies, and the development of state-tribal communication and collaboration policies and capacities. 245 In short, during this relatively short period of time, New Mexico took several specific and concrete actions to develop and refine its ability to engage directly and in a government-to-government capacity with American Indian tribes located within its borders.
Meanwhile, in its 2013 Plan Review, the Commission and OSE provided a substantive update on the progress of tribal-state engagement, reporting that long-
[hereinafter NM 2008 Review]. New Mexico water plan documents are generally available at http://www.ose.state.nm.us/Planning/.
240. O'Leary, supra note 227, at 345.
241. NM 2003 Plan, supra note 237, Sec. E at 73. The statement expands on this policy declaration to include statements that the state water planning process "will not limit Pueblo or Tribal water claims," that the state will engage in good faith on a "government-to-government" basis, and that the state recognizes the unique cultural importance of water to American Indian communities and the paramount importance of tribal sovereignty. Id.
242. NMSA 1978, § 72-14-3.1(E) (2003).
243. STATEMENT OF POLICY AND PROCESS (Jan. 17, 2003), https://www.env.nm.gov/OOTS/Trib al_Liaison/statement_pp.pdf.
244. STATEWIDE ADOPTION OF TRIBAL CONSULTATION PLANS (Feb. 1, 2005), http://archives. elpalacio.org/cdm/ref/collection/p267801coll5/id/2634; see generally, Richard Nichols and George Colyer, PILOT TRIBAL CONSULTATION EFFORTS BY THE STATE OF NEW MEXICO: STUDY OF THE IMPLEMENTATION OF EXECUTIVE ORDER 2005-004, (Jun. 2009), https://www.cms.gov/Outreach-andEducation/American-Indian-Alaska-Native/AIAN/Downloads/Pilot-Tribal-Consultation-Efforts-by-theState-of-New-Mexico.pdf.
245. NMSA 1978, §§ 11-18-1 to -5 (2009).
standing efforts to achieve negotiated water right settlements with the Navajo Nation and the Pueblos of Nambe, Taos, Tesuque, Pojoaque, and San Ildefonso had been successful since the 2003 plan's release. 246 The agencies also reported that the New Mexico Legislature had recently enacted the Indian Water Rights Settlement Fund and appropriated $35 million toward the three tribal water settlements. 247 Finally, though less remarkably, the agencies reported that they had "met with the Tribes, Pueblos and Nations in public meetings over the course of the past ten years to address water planning goals. All the parties involved have a strong commitment to create a mutually agreeable statement of policy and process to guide coordination and integration of the water plan." 248
In addition to its statewide plan, New Mexico conducts regional water planning, which provides tribe-specific engagement data. 249 The Commission generally provides central oversight and guidance, while "self-defined water planning regions" perform data collection and water planning strategy prioritization. 250 The regional process emphasizes the value of public engagement but provides that "the extent and nature of public involvement in the regional water planning process is the prerogative of each region . . . ." 251
As to tribal engagement, the Commission's regional planning handbook offers:
Indian tribes and pueblos are a key stakeholder group in New Mexico. The [Commission] has a tribal liaison and conducts periodic tribal summits on water resource issues. The state and the regions will encourage tribal participation in the regional and state water plan updates. However, the state respects tribal sovereignty and will abide by tribal decisions regarding the extent of their participation in the process. 252
Of New Mexico's sixteen planning regions, seven (44%) included significant tribal lands and waters, and a review of the 2016 regional plan updates 253 indicates
246. NM 2013 Plan Review, supra note 237, at 26-27.
247. Id. at 28.
248. Id.; see generally Nichols & Colyer, supra note 243.
249. NMSA 1978, § 72-14-43 and -44 (2007).
250. John R. Brown, "Whisky's Fer Drinkin'; Water's Fer Fightin'!" Is it? Resolving a Collective Action Dilemma in New Mexico, 43 NAT. RESOURCES J. 185, 194-95 (2003). New Mexico's planning regions are based on a blended consideration of the natural and the political, i.e., "[a] water planning region . . . is an area within the state that contains sufficient hydrological and political interests in common to make water planning feasible." NMSA 1978, § 72-14-44(D) (1987).
251. New Mexico Interstate Stream Commission, UPDATED REGIONAL WATER PLANNING HANDBOOK: GUIDELINES TO PREPARING UPDATES TO NEW MEXICO REGIONAL WATER PLANS 5 (Dec. 13, 2015).
252. Id. at 7.
253. See generally, Regional Water Planning, http://www.ose.state.nm.us/Planning/regio nal_planning.php.
consistent efforts to integrate tribal voices and issues—an effort regional planners appear focused on continuing to evaluate and potentially improve. 254
For example, as tabulated in Figure 2, six (86%) of the seven water planning regions included representation from tribal governments on their steering committees, and the seventh indicated that tribal leaders had been invited but did not report participation. Of the twenty-three tribes in New Mexico, ten (43%) participated through appointees to regional planning steering committees, with four (17%) participating in multiple regions. 255 Thirteen (57%) appear not to have participated in any regional planning body. 256
| Planning Region | No. of Tribes | No. of Tribes on |
|---|---|---|
| | Within Region | Steering |
| Region 2 (San Juan) | 3 | C i 1 |
| Region 3 (Jemez y Sangre) | 8 | 3 |
| Region 6 (Northwest New Mexico) | 4 | 4 |
| Region 7 (Taos) | 2 | 0 |
| Region 10 (Lower Pecos) | 1 | 1 |
| Region 12 (Middle Rio Grande) | 12 | 2 |
| Region 14 (Rio Chama) | | |
As to the relationship between participation in water planning and traditional adversarial processes, there seems little relationship. For example, seven (70%) of the ten tribes that participated in regional water planning are also party to ongoing stream adjudications, 257 of the five non-participating tribes that are already party to ongoing stream adjudications, three (60%) are party to the same case, 258 which may suggest the possibility of a cause specific to that proceeding, and one
254. N.M. Reg'l Water Plan. Governance Study Grp., Tribal Participation: Draft (2015), http://www.waterassembly.org/Archives/Water%20Assembly%20Documents/GSG06bTribal%20Participation.pdf. (evaluating and proposing reforms to state's outreach efforts).
255. See 2016 Regional Planning Reports, supra note 252, Navajo Nation participated in Regions 2 and 6, appearing not to have participated in Region 12; Jicarilla Nation participated in Region 14, appearing not to have participated in Regions 2 and 12; Santa Clara Pueblo participated in Regions 3 and 14, appearing not to have participated in Region 12; Laguna Pueblo participated in Regions 6 and 12; Pojoaque and Tesuque Pueblos participated in Region 3; Acoma and Zuni Pueblos participated in Region 6; Mescalero Apache Nation participated in Region 10; and Sandia Pueblo participated in Region 12.
256. See id. Ute Mountain Ute Tribe, Ohkay Owingeh, Cochiti Pueblo, Kewa, Nambe Pueblo, San Ildefonso Pueblo, Taos Pueblo, Picuris Pueblo, Isleta Pueblo, Jemez Pueblo, San Felipe Pueblo, Santa Ana Pueblo, and Zia Pueblo.
257. See id. Acoma Pueblo, Jicarilla Nation, Laguna Pueblo, Mescalero Apache Tribe, Navajo Nation, Santa Clara Pueblo, and Zuni Tribe, though two of these tribes (Jicarilla and Mescalero) have already obtained a decree of rights.
258. See id. Jemez Pueblo, Santa Ana Pueblo, and Zia Pueblo, each of whom is a claimant in the Jemez adjudication, New Mexico, ex rel. State Engineer v. Abousleman, et al., 83cv01041 (D.N.M. July 5, 2012).
(20%) has very limited land holdings in New Mexico, 259 with the majority of its lands lying within Colorado's borders, which suggests tribal priorities may lie north of the state line. Furthermore, while it may be a safe assumption that participation in an active adjudication would dissuade a tribe from engagement in collaborative water planning, three (23%) of the non-participating tribes are party to completed water right settlements that resolved their water right claims, 260 a status that should reduce perception and concern of legal risk associated with intergovernmental cooperative engagement. Admitting that this is a small sample size, these numbers do not suggest any clear correlation between participation in regional water planning and participation in active litigation or formal negotiations; whether to participate or not in planning efforts seems a decision made without necessary regard to prior or contemporaneous participation in litigation or negotiation efforts.
Finally, each of the 2016 regional planning reports include discussions of applicable tribal water codes and water quality standards applicable to water use within their boundaries—discussing, for example, the Jicarilla Nation's water code as well as its water and wastewater utility codes and water quality standards promulgated by seven tribes.
3. Oklahoma
The United States acquired the lands that now comprise Oklahoma as part of the Louisiana Purchase, 261 a portion of which was set aside from the public domain for purposes of implementing President Andrew Jackson's Indian removal policies. 262 During the pre-statehood period, tens of thousands of American Indians were forcibly removed from their aboriginal homelands, effectuating the near complete ethnic cleansing of the United States east of the Mississippi as tribes were relocated to treaty lands in what was loosely denominated Indian Territory. 263 Those tribes were not long alone in their new homelands, however.
Following the American Civil War, American expansion came to Indian Territory. 264 Expedited by post-war enthusiasm for western development and new treaties that allowed the railroads access to tribal lands, 265 American Indians were
259. See id. Ute Mountain Ute Tribe, which is primarily located within the borders of Colorado.
260. See id. Nambé Pueblo, San Ildefonso Pueblo, and Taos Pueblo.
261. E.g., Louisiana Purchase, http://www.historynet.com/louisiana-purchase (last visited Sept. 8, 2017).
262. COHEN'S, supra note 2, § 1.03[4][a], at 31.
263. Id. at 44-51(discussing legal history of President Jackson's removal policy, concluding "by 1850, the majority of Indian tribes had been removed from the eastern states."); Choctaw Nation v. Oklahoma, 397 U.S. 620, 622-27 (1970) (discussing removal treaties, Indian Territory, and formation of the State of Oklahoma). See generally, e.g., Amanda L. Paige, et al., CHICKASAW REMOVAL 23-70 (2010); see also, L. Susan Work, THE SEMINOLE NATION OF OKLAHOMA: A LEGAL HISTORY 3-4 (2010).
264. See David A. Nichols, LINCOLN AND THE INDIANS: CIVIL WAR POLICY AND POLITICS 204-06 (U. of Mo. Press 1978) (discussing post-war initiation of federal efforts to set up centralized territorial government in Indian Territory).
265. Id. at 163-64; see also COHEN'S, supra note 2, § 1.03[8]; BLUE CLARK, INDIAN TRIBES OF OKLAHOMA: A GUIDE 13 (U. of Okla. Press: Norman 2009); Daniel F. Littlefield, The Chickasaw
soon overwhelmed by non-Indian migrants. Within the first decade of the new century, Congress again imposed and coerced the dismantlement of tribal treaty homelands to make way for Oklahoma's entry as the forty-sixth state, 266 a process that included massive government-sponsored land runs that facilitated an overwhelming inflow of non-tribal settlement. 267 The establishment of the State of Oklahoma seems to have been contemporaneously presumed to have effectuated the erasure of the tribal communities and systems on which it was superimposed, 268 and as a result of the policies attendant to that goal, tribal peoples were reduced to a remarkable level of poverty and disenfranchisement under new state law systems. As Oklahoma historian Angie Debo observed in 1951 with respect to the Five Tribes of eastern Oklahoma, "they were protected theoretically by laws and courts, which they did not understand and could not use; actually the whole legal system of Eastern Oklahoma was warped to strip them of their property" 269 as result, "[t]hese Indians, who less than fifty years ago owned half of what is now the state of Oklahoma, live in appalling poverty." 270
But the later decades of the Twentieth Century saw a remarkable resurgence of tribal governance in Oklahoma. 271 Beginning with the American Civil Rights movement, grassroots tribal leaders emerged to reorganize efforts to take back control of tribal assets and rebuild tribal institutions. 272 Among other successes, these efforts led to the enactment of the Principal Chiefs Act, 273 which ended federal law limitations on tribal selection of leaders of Oklahoma tribes, and to litigation that culminated in the revitalization of pre-statehood tribal constitutionssources of organic tribal national sovereignty that survived Oklahoma statehood. 274 Today, thirty-eight federally recognized American Indian tribes are located within Oklahoma's borders, 275 many of whom have helped establish a regionally robust gaming economy, resulting in tribal governments serving collectively as a major economic engine in modern Oklahoma, particularly its rural areas. 276
Freedmen: A People Without A Country, in CONTRIBUTIONS IN AFRO-AMERICAN AND AFRICAN STUDIES No. 54, at 40-45 (Greenwood Press 1980).
266. Proclamation No. 780 (Nov.16, 1907).
267. E.g., W. David Baird and Danney Goble, OKLAHOMA: A HISTORY 141-48 (U. of Okla. Press: Norman 2008).
268. See, e.g., Last Indian Legislation, Chickasaw Legislature Has Held Last Session, DAILY ARDMOREITE Sept. 16, 1907, at 1 (describing dismantlement of tribal government on eve of Oklahoma statehood).
269. Angie Debo, THE INDIAN RTS. ASS'N., THE FIVE CIVILIZED TRIBES OF OKLAHOMA: REPORT ON SOCIAL AND ECONOMIC CONDITIONS 1 (1951).
270. Id. at 4.
271. E.g., Clark, supra note 264, at 16-17.
272. E.g., Phillip Carroll Morgan, CHICKASAW RENAISSANCE 96-109 (Chicksaw Press 2010).
273. An Act to authorize each of the Five Civilized Tribes of Oklahoma to popularly select their principal officer, and for other purposes, Pub. L. 91-495, 84 Stat. 1091.
274. See Harjo v. Andrus, 581 F.2d 949 (D.C. Cir. 1978).
275. Steven C. Agee, Okla. City U. Econ. Res. & Pol'y Inst., THE STATEWIDE IMPACTS OF OKLAHOMA TRIBES 3 (2012).
276. Id.at 3; Catherine Sweeney, Tribes provide counties, towns with money for roads, internet access, THE JOURNAL RECORD, Jan. 25, 2017, at 1.; Report: Oklahoma tribes paid state $1.123 billion
Meanwhile, Oklahoma's mechanisms for tribal-state relations regarding water are uncertain. As a general matter, the state governor, whose staff includes a statutorily designated Native American Liaison, 277 is authorized "to negotiate and enter into cooperative agreements on behalf of the state with federally recognized Indian tribes" within the state to address issues of mutual interest. 278 While the state has secured numerous tribal-state compacts through this and associated mechanisms, the governor's authority is explicitly curtailed with respect to any agreement "involving the surface water and/or groundwater resources of this state or which in whole or in part apportions surface and/or groundwater ownership." 279 The state has developed no water compact through this mechanism, and it has otherwise had very little experience of water rights litigation, in general; what litigation it has had has been locally idiosyncratic 280 or otherwise lost in the complexities of the state's unique water law system, giving rise to significant uncertainties. 281
Oklahoma enacted its first water planning statute in 1963, which called for the development of "statewide and local plans to assure the best and most effective use and control of water to meet both the current and long-range needs of the people of Oklahoma." 282 Relying on data from state and federal agencies, the Oklahoma Water Resources Board (Board) produced the first phase of a statewide water plan in 1975, 283 which included the following policy declaration:
The overall objective of the Plan is the maximum utilization of the State's water resources for all citizens. Because State law notes that all stream water originating in or flowing through the State, within limits of interstate compacts, is the property of the State of Oklahoma, tribes must file for water rights. Equal care is taken to ensure that these water rights are protected. Stream and ground water rights currently held by various tribes were given full consideration in the formulation of the plan to ensure this protection, and water needs for present and long- range tribal development have also been considered. 284
since 2006, THE OKLAHOMAN, Jan. 24, 2017, http://newsok.com/article/5535467 (noting $7.2 billion operations and construction impact, "of which 60 percent was in rural areas").
277. OKLA. STAT. tit. 74 § 7401207 (2014).
278. OKLA. STAT. tit. 74, § 74-1221 (B)-(C)(1) (2014).
279. OKLA. STAT. tit. 74, §1221(C)(3) (2012); OKLA. STAT. tit. 74 §1221(A) (2012).
280. E.g., Joseph F. Rarick, Oklahoma Water Law, Stream and Surface in the Pre-1963 Period, 22 OKLA. L. REV. 1 (1969); Joseph F. Rarick, Oklahoma Water Law, Stream and Surface Under the 1963 Amendments, 23 OKLA. L. REV. 19 (1970).
281. See, e.g., Gary Allison, Oklahoma Water Rights: What Good Are They?, 64 OKLA. L. REV. 469 (2012) (criticizing Oklahoma water law instability based on uncertainties relating to riparian rights, the failure to address hydrologic interconnections, and the embrace of groundwater mining principles).
282. OKLA. STAT. tit. 82, § 1085.2 (2012).
283. OKLA. Water Res. Bd., PHASE 1: OKLAHOMA COMPREHENSIVE WATER PLAN (1975) [hereinafter Okla. 1975 Plan]. Oklahoma water plan documents are generally available at http://www .owrb.ok.gov/supply/ocwp/ocwp.php.
284. Id. at Summary 7-8.
Again not appearing to provide for public participation, the Board produced its first full water plan in 1980, in which it stated the following:
In regard to Indian water rights, the State of Oklahoma recognizes the Winters Doctrine . . . , which doctrine maintains that water rights may be attached to Indian reservations created by lawful means, i.e., treaties, acts of Congress or executive orders. However, it should be noted that no Indian reservations presently exist in Oklahoma, with those previously existing being substantially dissolved by allotment of lands in severalty during the period of time from 1891 through 1906. The future water needs of Oklahoma's substantial Indian population have been considered within the water requirement projections included in the Oklahoma Comprehensive Water Plan. 285
Both of these statements manifest a specific view of and attitude toward tribal water rightsone which directly discourages tribal participation or invocation of federal law rights.
First, after years of litigation, 288 the state and several tribes negotiated and were now implementing significant tax compacts, 289 opting for negotiated intergovernmental cooperation rather than conflict. Likewise, the state and several tribes entered into gaming compacts pursuant to the Indian Gaming Regulatory Act, 290 producing positive economic impacts that have proven instrumental in rebuilding tribal institutions, programs, and services.
The Board did not update its water plan again until 1995, 286 but this time, it significantly engaged public input via two Water Plan Advisory Committees—a Citizens Advisory Committee, which brought a "grass-roots perspective to the planning table," and a Technical Advisory Sub-Committee, which "allowed state and federal water agencies to contribute their knowledge and experience." 287 There is no indication in the 1995 Update of any outreach to American Indian tribes; though, outside of these processes, other matters may have affected the state's approach.
Second, the Chickasaw Nation and Choctaw Nation of Oklahoma asserted their water rights during this period to object to a state effort to sell water
285. Okla. Water Res. Bd., OKLAHOMA COMPREHENSIVE WATER PLAN 11 (1980) [hereinafter Okla. 1980 Plan].
286. Okla. Water Res. Bd., UPDATE OF THE OKLAHOMA COMPREHENSIVE WATER PLAN (1995) [hereinafter Okla. 1995 Update].
287. Id. at 6.
288. E.g., Oklahoma Tax Comm'n v. Chickasaw Nation, 515 U.S. 450 (1995); Oklahoma Tax Comm'n v. Sac and Fox Nation, 508 U.S. 114 (1993); Oklahoma Tax Comm'n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505 (1991); Oklahoma Tax Comm'n v. Graham, 489 U.S. 838 (1989).
289. E.g., OKLA. STAT. tit. 68, § 346 (2014) (authorizing the state executive to enter tobacco tax compact with tribal sovereigns); OKLA. STAT. tit. 68, § 500.63 (2013) (same with respect to motor fuel taxes). The full collection of tribal-state compacts in Oklahoma are available at the website of the Oklahoma Secretary of State: https://www.sos.ok.gov/gov/tribal.aspx.
290. See OKLA. STAT. tit. 3A, §§ 261 (codifying model state-tribal compact offer).
originating from the tribes' historic treaty territory to out-of-state water users. 291 Those tribal claims triggered a new era in the handling of tribal water rights in Oklahoma, as suggested by the 1995 Plan's statement:
Indian water rights in Oklahoma concern both fundamental sovereignty and water quantity and quality. Indian claims to water rights could have a significant effect on existing state water law as well as the current system of water rights administration and water quality regulation in Oklahoma. 292
Consistent with this new recognition of the subject matter significance, the Board included in the 1995 Update a call for increased outreach, partnership, and the identification of specific projects the state and tribes could pursue jointly in an effort to "develop a level of trust" and seek resolution of "the Indian water rights issue in a non-confrontational manner. . . . " 293 The primary efforts toward this end were spent on addressing Chickasaw and Choctaw opposition to the state's plan to sell water to Texas water users and coming to terms on a possible compact. 294 However, those efforts failed to produce a compact and, instead, resulted in the state legislature's restricting the Governor's compacting authority, as already described. 295
Prior to the completion of its next 2012 water plan update, three new developments further affected tribal-state relations. First, in a natural resources damages lawsuit Oklahoma filed against poultry farmers in the upper Illinois River watershed, the federal district court issued a July 2009 dismissal of state claims on the grounds that the Cherokee Nation, which was not a party to the action and could not be joined due to its sovereign immunity, had "a real and substantial interest in some as-yet undetermined portion of the waters of the Illinois River." 296 The court dismissed the state's damages claims notwithstanding an agreement its Attorney General had entered with the Cherokee Nation on the subject, 297 nor would it later allow the Cherokee Nation to intervene, concluding such motion was untimely. 298 In short, the unanswered questions relating to tribal water rights in Oklahoma resulted in the state's inability to pursue a high-profile integrated resource damages claim. 299
291. Lambert, supra note 71, at 209-10.
292. Okla. Water Res. Bd., supra note 285, at 119.
293. Id.
294. See Okla. H. Con. Res. 1066 (1999) (directing Oklahoma Water Resources Board to work with the Choctaw Nation, the Chickasaw Nation, and local representatives on the development and protection of the Kiamichi River); see also Okla. Water Res. Bd., FINAL REPORT: KIAMICHI RIVER BASIN WATER RESOURCES DEVELOPMENT PLAN (2000), https://www.owrb.ok.gov/studies/report s/reports_pdf/KiamichiWRDPlan_2000.pdf; Okla. Water Res. Bd., JOINT STATE/TRIBAL WATER COMPACT & WATER MARKETING PROPOSALS (2002),
295. See supra note 278 and accompanying text; see also Mark A. Willingham, The Oklahoma Water Sale Moratorium: How Fear and Misunderstanding Led to an Unconstitutional Law, 12 U. DENV. WATER L. REV. 357 (2009).
296. Tyson, 258 F.R.D. at 479.
297. Id. at 475-76.
298. Oklahoma ex. rel. Edmondson v. Tyson Food, Inc., et al., 619 F.3d 1223, 1226 (10th Cir. 2010).
299. Greetham, supra note 5, at 599-601.
Next, in May 2010, a state policy group coordinated with the Board to hold a multi-day, state-wide public input session on water and water resource matters as an adjunct to the state's water planning efforts. This session produced a final report, which included the following consensus policy recommendation:
State/Tribal Issues. State and tribal issues must be resolved through meaningful government-to-government negotiations, preservation and building up on history of "good neighbor" relations, and implementation of the specific recommendations made on this subject in the 1995 state water plan so that the state and tribes can work cooperatively and more efficiently to resolve water issues. Tribal governments should be involved in the development of the 50 Year Water Plan so as to best address tribal water issues . . . . 300
This statement, produced through a consensus-based public input process, marked a significant departure from the prior discussed state policy statements concerning tribal relations and water.
Finally, in August 2011, Oklahoma faced its first tribal water litigation when the Chickasaw and Choctaw filed suit to stop a proposed trans-basin water project affecting their historic treaty territories. 301 In this suit, the tribes argued Oklahoma was preempted from exercising state law authority over the proposed transfer without federal law inquiry into the potential impact such administrative action would have on the tribes' claimed treaty right to a sustainable homeland. 302 The tribes alleged that resort to litigation was necessary because the state has not taken seriously their prior efforts to seek cooperative resolution. 303
In response,Oklahoma's former Attorney General Scott Pruitt, who now serves as Administrator of the United States Environmental Protection Agency under President Donald Trump, personally wrote to Oklahoma citizens in several of the affected basins to express the state's position that, one, it was "doubtful" the tribes had any water rights whatsoever and, two, responsive litigation, i.e., a statefiled general stream adjudication, was the only means available "to move forward with any confidence that [the state] will not be plagued with claims of Tribal rights again and again in the future as either moods or tribal leaders change." 304 Through his office, he then represented to the Oklahoma Supreme Court that the tribes'
300. Okla. Acad. Town Hall Nat'l Emp. Dev. Ctr., WATER: FINAL REPORT 9 (2010), https://www.owrb.ok.gov/supply/ocwp/pdf_ocwp/TownHall_FinalReport.pdf.
301. E.g., Felicity Barringer, Indians Join Fight for an Oklahoma Lake's Flow, N.Y. Times, Apr. 11, 2011, at A1; Stephen H. Greetham, Water Policy in the Former Indian Territory: Chickasaw, Choctaw, and Oklahoma at a Crossroads over Sardis Reservoir, 82 THE WATER REPORT 1 (2010); David Moon, Oklahoma Water Storage: Tribal Concerns Raised, 79 THE WATER REPORT (2010).
302. Complaint at 5, Chickasaw Nation and Choctaw Nation of Oklahoma v. Fallin, No. 5:11-CV927 (W.D. Okla., Aug. 18, 2011).
303. E.g., Okla. Water Res. Bd., SPECIAL MEETING OFFICIAL MINUTES 8 (2010) (recording Choctaw Nation Chief Pyle's request that state delay action on controversial water project); Letter from Governor Bill Anoatubby and Chief Greg Pyle to Governor Mary Fallin (Aug. 18, 2011) (on file with author); Letter from Michael Burrage to Attorney General Scott Pruitt (Aug. 18, 2011) (on file with author).
304. Letter from Oklahoma Attorney General E. Scott Pruitt to "Oklahomans and Others with water rights to protect" at 4-5 (Feb. 10, 2012) (on file with author).
lawsuit put "the very future of [the] State of Oklahoma" at risk, warning that the "State could become an economic dust bowl" if the tribal lawsuit proceeded in federal court. 305
In the midst of (and contrast to) this rancor, the Board completed its most recent water plan update 306 and, in doing so, for the first time included specific outreach to tribal governments. This outreach began prior to the litigation through the Board's contracting a member of the University of Oklahoma College of Law faculty to serve as liaison with tribal representatives in a series of informal consultations. 307 These consultations, the tribal participants to which were not disclosed, resulted in a report and recommendations that differed starkly from the Attorney General's contemporaneous legal position. 308 Specifically, the report and the 2012 plan update's policy recommendations regarding tribal water issues emphasized the substantive reality of unaddressed tribal water rights in Oklahoma 309 and focused on the state's lack of process for tribal-state engagement, calling on it to:
- identify what state government entity has the authority to develop a tribalstate water rights negotiation process, to conduct such negotiations, and approve any product of negotiation once completed;
- engage with tribes, pursuant to such established process, to complete binding negotiated resolution of claims; and
- establish an authorized team to work with tribal representatives on the development of a negotiation process;
- develop and implement tribal-state consultation protocols. 310
Oklahoma has taken no specific legislative or administrative steps based on its 2012 Update's recommendation, though in August 2016, Oklahoma and the Chickasaw and Choctaw Nations announced a comprehensive settlement of litigation that addressed the proposed trans-basin project and included a framework for tribal-state engagement on future water permitting and planning. 311
305. Application to Assume Original Jurisdiction at 4, Okla. Water Res. Bd. v. United States, No. 110375 (Okla. S. Ct., Feb. 10, 2012).
306. Okla. Water Res. Bd., OKLAHOMACOMPREHENSIVEWATERPLAN: EXECUTIVEREPORT(2012).
307. Okla. Water Res. Bd., OKLAHOMA COMPREHENSIVE WATER PLAN SUPPLEMENTAL REPORT:
RIBAL
T WATERISSUES& RECOMMENDATIONS(2011).
308. Update of the Oklahoma Comprehensive Water Plan, Executive Report, supra note 305, at 13; Oklahoma Comprehensive Water Plan, Tribal Water Issues and Recommendations, supra note 306, at 9.
309. Update of the Oklahoma Comprehensive Water Plan, Executive Report, supra note 305, at 3536 (observing regarding tribal water claims in Oklahoma that "judicial rules of treaty construction—that treaties with Tribes are to be interpreted as the Indians would have understood them, that ambiguities in Indian treaties are to be liberally construed in favor of the Indians—tend to favor the tribal position").
310. Id. at 13 (stating the policy recommendation of "Building Cooperation to Avoid Future Conflict and Remove Uncertainties to Water Use").
311. Joe Wertz & Logan Layden, INSIDE THE LANDMARK STATE AND TRIBAL AGREEMENT THAT ENDS STANDOFF OVER WATER IN SOUTHEAST OKLAHOMA, NPR.com, (Aug. 12, 2016), https://stateimpact.npr.org/oklahoma/2016/08/12/inside-the-landmark-state-and-tribal-agreement-thatends-standoff-over-water-in-southeast-oklahoma/.
C. Observations on the Experiences in California, New Mexico, and Oklahoma
The experiences of California, New Mexico, and Oklahoma show a range of approaches and results: California and New Mexico have achieved a significant level of tribal engagement, while Oklahoma has not.
With respect to the historical and relational context, none of these states depart markedly from the generalized discussion of Part II. 312 One might suggest that California and Oklahoma, both of which were founded in contexts that involved substantial tribal dispossessions enacted by law and violence, would problematize their outreach efforts. Indeed, Berkey intimated as much, 313 and the apprehension of tribes to participate in Oklahoma's planning process is documented; 314 on the other side of the table in Oklahoma, its litigation positions continue to adhere to arguments that cast tribal treaty rights as presenting an existential threat to the state itself, suggesting a significant hostility regarding tribal sovereignty. 315 Notwithstanding both states' having difficult histories, their approaches and experiences differ markedly, however— with California's outreach and engagement obtaining positive tribal response after only a few years' effort, while Oklahoma's fractured approach has failed to engage directly with tribes, despite having identified it as a policy priority twenty years ago.
With respect to legal processes, each state has significant experience litigating and negotiating with tribal governments. In California and New Mexico, this experience includes engagement over water rights, which has been playing out for decades, and has produced numerous tribal water right settlements. 316 Conversely, though it has had substantial experience in the litigation and negotiation of compacts with American Indian tribes on other complex intergovernmental matters, 317 Oklahoma has participated in only one tribal water lawsuit and negotiation, which was only recently initiated and completed. 318 While Oklahoma's relative lack of experience in water resource litigation and negotiation may be relevant, the experience of each state suggests an ability to bridge complex differences with tribal sovereigns and to find cooperative approaches on divisive issues.
312. See supra notes 9-76 and accompanying text.
313. Berkey, supra note 5, at 2.
314. Tribal distrust of state planners is evident in the 2011 supplemental report to the Oklahoma Comprehensive Water Plan, Tribal Water Issues & Recommendations, supra note 306, which records concerns, based on the state's failure to implement prior policy statements regarding tribal outreach "that their interests were being ignored", at 2; likewise, the anonymous tribal participants expressed distrust that their participation "would be construed as support for the end product" even though they "lack[ed] control over that product", at 3; other concerns focused on the state's potential to use any information a tribe may provide against them in future legal proceedings regarding water rights", at 2.
315. See supra notes 303-04, and accompanying text. Cf. Osage Nation v. Okla., ex rel. Okla. Tax Comm'n, 597 F. Supp. 2d 1250, 1254 (N.D. Okla. 2009) (ruling against tribal preemption argument and, in so doing, emphasizing the state attorney general's arguments of the "staggering" implications and near-existential threat occasioned by the tribe's jurisdictional argument).
316. See supra notes191-94, 228-33, and accompanying text.
317. See supra notes 276-77, 288-89, and accompanying text.
318. See supra notes 300-04, 310, and accompanying text.
Finally, in each of these states, American Indian tribal communities have successfully engaged in tribal institution building and economic development initiatives in accord with federal self-determination policies, 319 which create additional opportunities for mutually beneficial intergovernmental alliances. 320 Rather than suggest challenges, this characteristic would suggest a greater likelihood of success for tribal-state engagement, if the effort were properly framed and supported.
Turning to the details of each state's effort, larger distinctions appear. Specifically, success appears driven by the substance and institutional foundation for outreach efforts. New Mexico's and California's outreach, for example, specifically included a focus on establishing known mechanics and protocols for intergovernmental engagement. Both states established high- level liaisons within their respective chief executive's offices and have launched agency-specific implementation strategies and projects across state government. Furthermore, both states developed the mechanics and protocols for intergovernmental engagement through government- to-government talks with American Indian tribes, building a mutual investment in the success of those efforts.
Additionally, both California and New Mexico have made high-level institutional commitments to their efforts. In New Mexico, the state's efforts are founded on both statutory and executive department authorizations, while state efforts in California have been founded on explicit executive department actions alone. In both instances, implementation has been led by the state's chief executive, and in both states, tribal communities have responded.
In contrast, Oklahoma lacks a functional mechanism or protocol for government-to- government tribal engagement on water issues, and while statute authorizes the state governor to negotiate agreements with tribes on matters of mutual interest, that same statute expressly ties the governor's hands with respect to water resource agreements. Tribal concerns on this point are well documented in the state's 2012 plan update 321 and were otherwise publicly cited as reason for the initiation of litigation in 2011. 322
Additionally, while the state's lead water planning agency has consistently acknowledged interest in and the importance of collaborative engagement with tribal governments, 323 its prior plan's preemptive denial of the validity of tribal water right claims 324 appears to continue with some force and influence through the positions of other executive department denials of the legitimacy and substance of tribal claims to sovereignty, relying on polarizing rhetoric of tribal "otherness" that cast tribal treaty rights as a marked existential threat to state government. 325 At best, the history of Oklahoma's institutional approach to tribal governments regarding water suggests dysfunction, ambivalence, and uncertainty. By any
319. See supra notes 187-90, 226, 275, and accompanying text.
320. See supra notes 68-69, and accompanying text.
321. See supra note 305.
322. See supra note 302 and accompanying text.
323. See supra notes 291, 310-11, and accompanying text.
324. See generally supra notes 281-83, and accompanying text.
325. See supra notes 303-04, 314, and accompanying text.
measure, its track record regarding tribal engagement stands in stark contrast to California's and New Mexico's.
D. Lessons, Questions, and Concluding Thoughts
When one examines water conflict, substantial common interests can appear. While parties differ on how they would individually approach a given issue, for example, they may share common ground in the desire for reliable access to and management of water resources, improved community and intergovernmental relations, locally appropriate economic development, and effective planning for a future of shared success. 326 The history of water in the United States (and elsewhere) is easily viewed as a history of conflict, and our reliance on adversarial processes tends to focus differing parties on disaggregating competition while blinding them to potential common ground.
There are, of course, exceptions—modes of conflict and responses that can "serve as an embryo from which cooperation can emerge." 327 The challenge is to create the environment in which that opportunity can emerge. Notwithstanding their successes so far, it is not clear yet whether California's or New Mexico's efforts will create those sorts of opportunities, but they mark a start in the right direction.
In their work on heterogeneities in common pool resource disputes, Schlager and Blomquist discuss interaction orientations such as individualism, competition, altruism, and hostility, and they identify solidarity—the state in which a benefit to any member of a group is viewed as success for the members of the group—as a necessary "precondition to unrestricted cooperation." 328 Likewise, in discussing mechanisms that foster the necessary conditions for cooperation, they discuss the value of strategies such as building efforts on common or related sets of interests 329 or party types. 330
In a fascinating article, geographer Zoltán Grossman brings these concepts to life in his exploration of case studies of natural resource conflicts involving tribal and non-tribal communities. 331 In each of his cases, "members of Native and rural white communities unexpectedly came together to protect the same natural resources from a perceived outside threat." 332 In each conflict, a tribal group asserted a treaty based right to the affected resource that was damaged by the subject activity, and triggered "a backlash from some rural whites" and "created a conflict around the use of land or natural resources." 333 And in each of his selected cases, Grossman shows, as the conflict's intensity calmed over time, tribal and nontribal factions "initiated dialogue" and "increased collaboration around the
326. E.g., Colby, supra note 64, at 31.
327. Grossman, supra note 7, at 35.
328. Schlager & Blomquist, supra note 6, at 7-8.
329. Id. at 10.
330. Id. at 10-11.
331. Grossman, supra note 7.
332. Id. at 21.
333. Id. at 21-22.
protection of their community livelihood and common natural resources." 334 As he observes, the combatants ultimately "believed that if they continued to contest the place, to fight over resources, there may not be any left to fight over." 335
Grossman identified key factors that facilitated this shift. Chief among them was a shared sense of place or "'place membership,' based on local-scale multiethnic territorial identity" that served as a replacement for a more narrow "state citizenship"; integral to this commonality was the combatants' ability to build "a sense of a common place or a common bond to the landscape." 336 Next, he emphasized the importance of developing a "common purpose in legal, political, or economic fields" as well as a shared desire to find resolution rather than mere partisan victory—or, as he put it, "a sense of a common understanding." 337 Fundamentally, Grossman documents efforts within diverse communities to build upon a shared interest in a common, if not collective, enjoyment of place and appurtenant resources and, thus, to shift from distributive competition to integrative cooperation.
While conflict is our tradition with respect to management of water resources and while the potential for conflict inheres to the tribal-state relationship, conflict is not the only path we can take in our search for progress. The options our formal dispute resolution mechanisms present are limited, i.e., litigation or formal negotiation, and our nearly exclusive reliance on these tools has so far produced only modest progress. However, options for seeking collaborative engagement, conflict avoidance, and mutual problem solving appear far more extensive, and as water planning methodologies grow more sophisticated, opportunities for greater progress through constructive, non-adversarial engagement may open.
Given the challenges we face in reconciling America's colonial past with its constitutional present, it seems significant that private and public good, both tribal and non-tribal, would be well served by our continuing to "be even more creative" 338 in our exploration of all potential paths. Our failure to do so may result in, as Grossman observes, our contest over place and may leave us with no place to fight over. 339
IV. CONCLUSION
More than 100 years have passed since the Supreme Court announced its framework for tribal reserved rights to water, 340 and nearly forty years have passed since finalization of the first negotiated settlement of tribal water rights. In that time, tribes, states, and the federal government have wrestled with how to do justice to tribal claims within the complex physical, legal, and political realities of water use and needs. We have made progress, though not enough, and if we want to
334. Id. at 23.
335. Id.
336. Id. at 35-36.
337. Id. at 36.
338. See supra note141 and accompanying text.
339. See supra note 334 and accompanying text.
340. See supra note16-19 and accompanying text.
make further progress, to borrow the words of the Wester Water Policy Review Advisory Committee, we "will have to be even more creative." 341
Stepping aside from our adversarial processes, water planning appears to be a tool well-suited for the further pursuit of collaborative engagement and problem solving, and the experiences in California and New Mexico show that integrated and well supported state engagement efforts within a government-togovernment framework can be successful in promoting tribal-state water planning efforts. Planning cannot substitute for the law's ability to provide enforceable finality, but—creatively structured and skillfully used—it may provide a means for enhanced intergovernmental engagement that could lead to more efficient dispute resolution in the future. It could, perhaps, even facilitate sustainable and just conflict avoidance.
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Original Scientific paper 10.7251/AGRENG1701091G UDC 633.812
ADAPTIVE CAPACITY OF SOME LAVENDER AND LAVANDIN CULTIVARSIN VITRO AND IN SITU
Oksana GREBENNIKOVA, Anfisa PALIY, Valentina BRAILKO, Olga MITROFANOVA, Valery RABOTYAGOV, Irina ZHDANOVA, Irina MITROFANOVA*
Nikita Botanical Gardens, National Scientific Centre, Nikita, Yalta, 298648, Russia *Corresponding author: irimitrofanova@yandex. ru
ABSTRACT
Lavandula angustifolia Mill. and (LavandulaxintermediaEmericexLoisel) are promising fragrant plants with medicinal, aromatic and ornamental properties. Since the collection plantations of these crops are very damaged with viral pathogens and there is lack of seed propagation in valuable cultivars 'Belyanka', 'Record' (lavender) and 'Rabat', 'Snezhnyi Bars' (lavandin), were introduced in vitro. Chemotherapy was used for cleaning up. Regenerants were cultured (4-5 months) on MS medium with 0. 3 mg L - Kinetin, 0. 025 mg L - NAA and 0. 25 mg L - GA3 at 25±1°C under 16-h photoperiod. Intact plants were studied during the growing season. In order to reveal plants` biotechnological and genetic capacity some biochemical stress indicators, indexes of photosynthetic activity and water regime were identified. Under the open field cultivation, tested plants were rich in ascorbic acid, phenolic compounds, and redox enzymes (catalase, polyphenol oxidase, superoxide dismutase) were active. Leaf tissue hydration was 56-62%, with greater part of bound water. Photosynthetic activity was reduced only in the samples with visible damages with viral pathogens. In plants cultured in vitro, amount of ascorbic acid and phenolic compounds were lower, so as enzymatic activity and proline concentration were higher than in intact plants. The rate of hydration was high (70-77%), with the same trend of water fractional composition. Photosynthetic activity and vitality index indicated no photoinhibition. It was found out the lavandin cultivars had better capacity for a wide use under various culture conditions.
Keywords: Lavandula sp, tissue culture, biochemical indicators, photosynthetic activity, water regime.
INTRODUCTION
Lavender (Lavandula L. ) is a valuable essential oil, aromatic, decorative and medicinal culture. The main cultivated species are Lavandula angustifolia Mill. and lavandin (L. hybrida Rev. or LavandulaxintermediaEmericexLoisel). Lavender and Lavandule plants contain valuable essential oil, which is used in medicine, perfume, cosmetics and food industry (Libus et al., 2004). Phenolic compounds, which have a wide range of physiological activities, were also identified in plant feedstock (Torras-Claveria et al., 2007).
Thus, the aim of the work was to determine physiological and biochemical changes in vegetative organs of valuable lavender and Lavandula cultivars in plants with symptoms of viral diseases and after cleaning up in vitro.
Medical feedstock is the entire aboveground mass of plants. Traditionally, these crops are propagated by seeds (L. angustifolia) or vegetative (L. angustifolia and L. hybrida). In recent years, high degree of viral pathogens damages was noticed for cultivated plants. High quality planting material may be obtained by cleaning up in vitro. Besides, biotechnological methods enable to produce a large number of genetically homogeneous virus-free plants (Mitrofanovа et al, 2014; Gonçalves and Romano, 2013). Plants damaged with viral pathogens are exposed to stress. One of the earliest responses to the stress effect is active forms of oxygen (AFO) formation and they violate many processes in the cell and its structure. To prevent such violations antioxidant systems including low molecular weight protective compounds and specific antioxidant enzymes are present in cells. The study of the antioxidant systems functioning is important for predicting plant adaptive capacity (Mittler, 2002; Mullineaux and Baker, 2010). The sensitive parameter for changes in plant functional state is also photosynthetic activity and the viability index (Byron et al, 2000; Stirbet and Govindjee, 2011).
MATERIAL AND METHODS
Regenerants were cultured for 4-5 months on the modified MS medium with 0. 3 mg l - Kinetin, 0. 025 mg l - NAA and 0, 25 mg l - GA3. Explants in the culture vessels were kept in a growth chamber at 25 ± 1°C under 16-h photoperiod supplied by cool-white fluorescent lamps giving 37. 5 μmol m - s - . The callus formed 2-5 microshoots, 23-82 mm height and each microshoot produced from 10 to 26 lanceolate leaves, 9-15 mm length.
The objects of this study were valuable cultivars of lavender (Belyanka, Record) and lavandula (Rabat, Snezhnyi Bars) from the collection of Nikita Botanical Gardens. The researches of intact plants were carried out during the phenophase "technical maturity" (the second and third decade of July 2015). For the studies plants without visual symptoms of viral diseases and damaged ones were selected. Apical meristems of axillary buds were introduced in vitro. Chemotherapy in vitro was used for cleaning up.
Biochemical parameters were determined by standard methods: the content of proline due to modified procedure by Chinarda using ninhydrin reagent (Andryushchenko et al.,1981), the amount of phenolic substances by photometric method using Folin-Ciocalteu reagent (Gerzhikova, 2002), ascorbic acid by iodometric titration (Richter, 1999). The activity of catalase (EC 1. 11. 1. 6) was determined titrimetrically (Voskresenskayaetal.,2006), polyphenol oxidase (EC 1. 14. 18. 1) - in the presence of catechol and p-phenylenediamine (Ermakov, 1987), superoxide dismutase (EC 1. 15. 1. 1) – due to quercetin oxidation reaction (Kostyuk et al., 1990). Such physiological criteria characterizing the water regime as the total water content in leaves, water fractional composition and the water deficit under the cultivation in the field were used (Ross, 2012). Weather data of the study period are presented according to the observations of agrometeorological station "Nikita Garden": the average air temperature in the period of water deficit studies was 22. 2˚C, the maximum air temperature – 32. 4˚C, minimum relative humidity – 39%. The basic amount of precipitation fell in the beginning of July; their sum for the month was 15. 6 mm or 50% of the norm. In late July, stocks of productive soil moisture at the depth of the lavender root layer (0-20 cm) were 40 mm. The parameters of photosynthetic activity were measured with a portable fluorometer "Florotest" (Ukraine, 2010). During the experiments the following indexes of Kautsky fluorescence induction kinetics were registrated: the initial fluorescence (F0), the maximum (Fm) and stationary (Fst) fluorescence values after dark adaptation. Viability index and photosynthetic activity were calculated (Bajron et al., 2000).
RESULTS AND DISCUSSION
In the conditions of the open field growing for lavender and Lavandula plants withoutvisual symptoms of viral diseases proline content was the highest and it decreased slightly (to 29%) in the plants with symptoms of viral diseases (Table 1). Perhaps, proline reduction in the plants with viral symptoms was due to proline synthesis slowdown in response to stress and its consumption for engagement with surface hydrophilic residues of proteins to increase their solubility and protection from denaturation. In regenerants under in vitro conditions, proline concentration was higher than in intact plants, despite the high water content in tissues. This suggests that free proline can influence the processes of cell growth and differentiation in Lavender and Lavandula.
To evaluate the adaptive capacity of plants requires data about protective compounds of various chemical origin are needed. Proline is among those compounds and it is a source of energy, carbon and nitrogen under the lack of resources and reduce of synthesis enzyme activity caused by stress (Kavi Kishor et al., 2005). Other proline functions including osmoregulation and participate in gene expression were found out (Lyers and Caplan, 1998).
Phenolic substances are also among the main plant protective compounds. They are involved in the basic processes of plant cell activity: photosynthesis, respiration, as well as stress protection (Zaprometov, 1993). Plant response to viral infection is the increase of phenolic compounds content (Dikilitas et al., 2011).
Lavender and Lavandula intact plants without visual viral diseases symptoms accumulated maximum amount of phenolic compounds. Together with viral diseases symptoms appearance phenolics content reduced (to 14-31%), which is probably corresponds to the specific reactions of these cultures for viral infection, i. e. preferred accumulation of protective compounds of the other chemical origin. Antioxidant protection of that type plants can be carried out due to the presence of high-molecular antioxidants and volatile compounds.
Considering that influence of adverse factors on plant resulted in oxidative stress ascorbic acid is under the interest as a protective compound. It is the most common antioxidant in plants. It is known that this compound is a regulator of cell growth and cofactor for many enzymes and it is involved in photosynthesis, respiration and growth of plants (Smirnoff, 2000).
In plants under controlled conditions in vitro concentration of phenolic compounds and ascorbic acid were lower than in intact plants, due to high water content in tissues and absence of stress factors.
In intact plants without visual viral diseases symptoms concentration of ascorbic acid was the highest and it slightly decreased (by 15-29%) together with viral diseases symptoms appearance. The exception was Lavandula cultivar Snezhnyi Bars, in which the changes in ascorbic acid content under the appearance of viral diseases symptoms did not demonstrate significant difference.
Table 1. Biochemical indexes of lavender and Lavandula cultivars
| Сultivars | | Proline, µg g- | Ascorbic acid, mg 100 g- | Phenols, mg 100 g- |
|---|---|---|---|---|
| Belyanka | in situ | 7. 69±0. 23 | 20. 06±0. 58 | 1033±26 |
| | in situ* | 5. 49±0. 16 | 18. 04±0. 52 | 785±23 |
| | in vitro | 8. 24±0. 24 | 5. 61±0. 16 | 645±17 |
| Record | in situ | 12. 95±0. 37 | 18. 92±0. 54 | 1181±31 |
| | in situ* | 10. 99±0. 32 | 15. 05±0. 44 | 816±24 |
| | in vitro | 33. 75±0. 99 | 5. 94±0. 17 | 490±14 |
| Rabat | in situ | 6. 67±0. 20 | 19. 14±0. 55 | 1305±34 |
| | in situ* | 5. 49±0. 14 | 15. 40±0. 45 | 1119±30 |
| | in vitro | 35. 72±1. 04 | 4. 95±0. 13 | 668±19 |
| Snezhnyi Bars | in situ | 21. 59±0. 63 | 14. 96±0. 44 | 1492±40 |
| | in situ* | 18. 05±0. 53 | 15. 62±0. 46 | 1165±32 |
| | in vitro | 35. 32±1. 05 | 5. 98±0. 17 | 777±22 |
* - plants with visual symptoms of viral diseases
The results presented in Table 2 demonstrate that in the studies of redox enzymes in and lavender and Lavandula cultivars it was determined that plants without visual symptoms of viral diseases are characterized by maximum values of catalase, polyphenol oxidase and superoxide dismutase activities.
In plants with symptoms of viral infection activity of all studied enzymes decreased: catalase activity by 10-56%, SOD activity - by 5-26%, PPO activity - by 22-60, suppose that is associated with reduced antioxidant status of plants due to excessive accumulation of the active forms of oxygen. The greatest decrease in catalase and PPO activity together with poor changes of SOD activity was observed in infected Lavandula plants cultivar Rabat.
Table 2. Redox enzymes activity in lavender and lavandin cultivars
| Cultivars | | Catalase activity, g Оg- min- 2 | SOD activity, a. u g- |
|---|---|---|---|
| Record | in situ | 18. 13±0. 45 | 13. 60±0. 33 |
| | in situ* | 15. 45±0. 39 | 11. 28±0. 27 |
| | in vitro | 6. 80±0. 16 | 6. 12±0. 20 |
| Belyanka | in situ | 30. 68±0. 87 | 12. 98±0. 32 |
| | in situ* | 25. 50±0. 64 | 10. 83±0. 27 |
| | in vitro | 7. 65±0. 19 | 5. 62±0. 14 |
| Snezhnyi Bars | in situ | 36. 97±0. 92 | 14. 82±0. 38 |
| | in situ* | 36. 12±0. 90 | 10. 83±0. 26 |
| | in vitro | 2. 98±0. 08 | 10. 48±0. 28 |
| Rabat | in situ | 31. 45±0. 77 | 12. 55±0. 32 |
| | in situ* | 13. 74±0. 43 | 11. 93±0. 30 |
| | in vitro | 3. 68±0. 09 | 12. 43±0. 31 |
Under in vitro culture catalase activity in Lavender cultivars was higher than that in Lavandula ones. At the same time, SOD and PPO activity in lavender in vitro had lower values than the in Lavandula. Comparative analysis of enzymes activity in intact plants without viral diseases symptoms and plants cleaned up in vitro demonstrated that minimum values of catalase and polyphenol oxidase activity are characteristics of Lavender and Lavandula cultivars grown in vitro. Reduction of enzyme activity corresponds to the high water content in tissues, low content of ascorbic acid and phenolic compounds, as well as the absence of stress factors. SOD activity in Lavandula cultivars in vitro was at the same level with the healthy plants grown in situ, and in Lavender cultivars in vitro it was 50% lower than in healthy intact plants.
Table 3. Indexes of the water regime and the relative quantum efficiency of photosystem-2 in Lavender and Lavandula cultivars
| Indexes | | | | |
|---|---|---|---|---|
| | | Belyanka | Record | Rabat |
| Total water content, % | in situ | 61. 1 ± 3. 0 | 57. 9 ± 2. 5 | 56. 3 ± 4. 8 |
| | in situ* | 59. 1 ± 2. 9 | 58. 1 ± 2. 8 | 70. 8 ± 1. 9 |
| | in vitro | 76. 1 ± 3. 3 | 72. 3 ± 2. 9 | 77. 0 ± 2. 5 |
| Bound water fraction, % of total water content | in situ | 78. 3 ± 4. 9 | 90. 6 ± 3. 5 | 82. 1 ± 4. 3 |
| | in situ* | 84. 9 ± 2. 3 | 87. 4 ± 1. 9 | 79. 3 ± 5. 0 |
| | in vitro | 69. 5 ± 4. 1 | 58. 1 ± 2. 2 | 68. 3 ± 4. 8 |
| Plant-water deficit, % | in situ | 26. 9 ± 1. 4 | 24. 8 ± 2. 9 | 23. 1 ± 2. 9 |
| | in situ* | 23. 5 ± 2. 9 | 38. 2 ± 4. 1 | 26. 4 ± 1. 4 |
| Relative photosynthetic activity(F -F )/ F m st m | in situ | 0. 68 ± 0. 09 | 0. 70 ± 0. 05 | 0. 75 ± 0. 10 |
| | in situ* | 0. 62 ± 0. 07 | 0. 52 ± 0. 08 | 0. 73 ± 0. 12 |
| | in vitro | 0. 28±0. 10 | 0. 45±0. 05 | 0. 55±0. 08 |
| Viability index F /F m st | in situ | 2. 61 ± 0. 50 | 2. 51 ±0. 61 | 3. 18 ± 0. 52 |
| | in situ* | 1. 94 ± 0. 31 | 1. 82 ± 0. 29 | 2. 73 ± 0. 68 |
| | in vitro | 1. 41±0. 03 | 1. 71±0. 12 | 2. 36±0. 37 |
Under the open field growth conditions water content in leaves was 56-62% (Table 3) and the part of bound water was from 79 to 93% of the total water content. After a long period (18 days) period without precipitation total water content in vegetative organs decreased, while the part of bound water increased. The maximum water-holding capacity was characteristic of the vegetative organs tissue in the cultivars Snezhnyi Bars and Record due to the fraction of bound water. Studied parameters did not reveal any significant differences between the plants with visual symptoms of viral diseases and ones without symptoms.
Leaf water content in in vitro regenerants was higher in Lavandula plants (74-77%) and no significant differences in this parameter was not revealed between the cultivars. However, the lowest variability of water content in regenerants during the culture and maximum ratio bound/free water fraction let us to select the cultivars Rabat and Record. The high photosynthetic activity of leaves in regenerated plantlets was found. Viability index was normal for plants grown under controlled conditions in vitro and the same was in plants grown at a relatively heterotrophic nutrition type. According to these indexes, better functional state was characteristic of Lavandula cultivars.
The level of leaf-water deficit was 23-29% in the cultivars Rabat, Belyanka and Snezhnyi Bars. The maximum (38%) leaf-water deficit was noticed in Record cultivar plants with the symptoms of viral pathogens damages. We did not notice significant differences between the affected and unaffected plants in other studied cultivars. Changes in the water regime and the degree of cultivar susceptibility affected largely on the photosynthetic activity of Lavender cultivars. They demonstrated decrease of the relative quantum efficiency of photosystem 2, photochemistry and efficiency of the energy capture with open reaction centers. Viability index was in the normal, but it was lower in Lavender cultivars. Photoinhibition expressed in plants with visual symptoms of viral diseases. The observed effect of changes in the photosynthetic apparatus activity together with visual damages of vegetative organs in the studied plants are in agreement with the conclusions by S. Nogues and L. Alegre (2002).
Functional state indexes of the studied plants in vitro demonstrated no photoinhibition and normal activity of photosystems at both light harvesting complexes and at the time of electron donors' oxidation in the reaction center of photosystem 2.
CONCLUSIONS
It was found that in the open field growth conditions content of proline, phenolic compounds, ascorbic acid and the activity of catalase, superoxide dismutase and polyphenol oxidase were maximum in Lavender and Lavandula symptomless and they decreased in plants with symptoms of viral diseases. According to those parameters, no significant differences between Lavender and Lavandula cultivars were revealed. Changes in the water regime of the cultivars and the degree of their susceptibility affected largely on the photosynthetic activity in Lavender cultivars.
In plants under in vitro conditions proline concentration was higher and the content of phenolic compounds, ascorbic acid and the enzymatic activity was lower than in intact plants. Photosynthetic activity and vitality index demonstrated no photoinhibition.
It was revealed that studied Lavandula cultivars have greater plasticity and capacity for growing in vitro and in situ.
ACKNOWLEDGEMENT
This study was funded by research grant N 14-50-00079 of the Russian Science Foundation.
REFERENCES
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Ermakov, A. I. (1987). Methods of plants biochemical research. Agropromizdat, Leningrad, p. 430.
Gonçalves, S., Romano, A. (2013). In vitro culture of lavenders (Lavandula spp) and the production of secondary metabolites. Biotechnol Adv., 31 (2), pp. 166174.
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REVISED PLAN AND POLICY MEMORANDUM ATTACHMENT A
December 28, 2018
Date:
To:
Larry Lewis and Kerry Kemp, City of Waldport David Helton, Oregon Department of Transportation
From: Matt Bell and Susan Wright, Kittelson & Associates, Inc.
Project: Waldport Transportation System Plan (TSP) Update
Subject: Revised Plan and Policy Memo (Subtask 2.2)
Project #: 22254.0
PLAN AND POLICY PROJECTS
This memorandum documents the status of identified projects from existing transportation plans for the Waldport area. Transportation plans reviewed for projects include:
» Waldport TSP (1999),
» Waldport Comprehensive Plan (2010),
» Yaquina John Point Land Use & Transportation Plan (2012),
» Waldport Industrial Park Master Plan (2017), and
» Lincoln County TSP (2017).
The projects were classified as complete, scheduled, incomplete, or no longer necessary. These projects will be reviewed further as part of the Waldport TSP Update to determine their relevance to existing and future transportation needs. Table 1 summarizes the identified projects.
Table 1: Adopted Plan Projects
| | Description | | Status | Advance, Remove, |
|---|---|---|---|---|
| | | | | Reconsider |
| | The most important improvement at this intersection is the need for a center turn lane for southbound Highway 101 traffic. Additional improvements may include access improvements to the commercial establishments on the west side of Highway 101 so that access to this commercial area aligns with the realigned Range Drive. | | Ongoing | |
| | Continuous pedestrian/bicycle facilities are needed between Highway 34 and the elementary school. Bicycle lanes and pedestrian pathways are preferred on both sides of the street; however, they need to at least be continuous on one side. Initially, it may be more feasible to construct a pedestrian facility (sidewalk or pathway) on the east side of Crestline Drive north of Range Drive, and on the west side south of Range Drive. However, it may be appropriate to extend the pathway along the west side, through Crestline Park, just north of Range Drive. The northern portion of Crestline Drive, where the hill and curves are located, is currently an unsafe section of road, especially for bicyclists and pedestrians. | | Incomplete | |
| G. Maintain Access to | | Maintain public access to amenities and to improve connectivity. This includes | Ongoing | |
| Amenities and To | | prohibiting street vacations where they provide access to amenities, i.e. the bay, or | | |
| Undeveloped Land | | provide better connectivity to adjacent land. | | |
| | Require new development to provide connections to adjacent streets and pedestrian/bicycle facilities. This should occur through the land use application process and include provisions that transportation improvements be constructed concurrent with development, that right-of-way be dedicated, and that connections to adjacent properties occur to ensure future development connectivity. | Require new development to provide connections to adjacent streets and | Ongoing | |
| | | pedestrian/bicycle facilities. This should occur through the land use application process | | |
| | | and include provisions that transportation improvements be constructed concurrent with | | |
| | | development, that right-of-way be dedicated, and that connections to adjacent | | |
| | | When redevelopment occurs, ensure adequate and safe access occurs, i.e. ingress and | Ongoing | |
| | | egress issues near intersections such as the service station and auto store at the Highway | | |
| | | 101/Highway 34 intersection. | | |
| Project | | Description | | Status | Advance, Remove, |
|---|---|---|---|---|---|
| | Project | | | | |
| | | | | | Reconsider |
| | J. Ensure Transportation | Ensure transportation facilities are in accordance with Americans with Disability Act standards wherever possible, and that public transportation services accommodate special needs, i.e. disabled and elderly. | | Ongoing | Advance – May |
| | Facilities and Services | | | | need to revisit/ |
| | Accommodate Special | | | | update given new |
| | Needs | | | | ODOT standards |
| K. New East-West Road in South Waldport Connecting Hwy. 101 and Crestline Drive | | This would serve the developing industrial area and reduce truck traffic on Range Drive and Crestline Drive. It would also serve the developing residential zoned land and the elementary school, particularly for traffic approaching this area from Highway 101, south of the City. Potential locations include: » West from Crestline Drive through the industrial zoned land and through land currently located outside the Urban Growth Boundary. This would necessitate an exception to the statewide goal of prohibiting development of new roads outside urban growth boundaries; » Extend Seabrook Lane east and south, connecting to Crestline Drive south of the Golf Course, i.e. Green Dr. | | Incomplete | |
| M. Highway 34lCrestline Drive/Mill Street Intersection | | The Highway 34/Crestline Drive intersection is offset from the Highway 34/Mill Street intersection. In addition, it is currently confusing and unsafe for eastbound Highway 34 traffic to turn north on to Mill Street. The recommended alternative is to reroute northbound turning traffic from Highway 34 to Broadway Street and prohibit the northbound turn on Mill Street from eastbound Highway 34. If high school redevelopment/ improvements occur, consider realigning Crestline Drive to align with Broadway Street. | | Ongoing | |
| N. Highway 34/Bay Street Intersection Improvements | | | Eastbound Highway 34 traffic exits to the school parking lot at the location where | No Longer Necessary | |
| | | | vehicles entering Highway 34 from city hall and the school are stopped for Highway 34 | | |
| | | | traffic. | | |
| | Description | | Status | Advance, Remove, |
|---|---|---|---|---|
| | | | | Reconsider |
| | Improvements will primarily occur with redevelopment to ensure that better ingress and egress is provided to businesses located on or near the intersection. However, improved (safer) pedestrian crossing improvements could occur sooner. | | Ongoing | Advance – |
| | | | | Pedestrian |
| | | | | improvements have |
| P. Pavement Striping | | Crosswalk, bicycle lane, and fog line improvements to provide better demarcation and | Ongoing | |
| Improvements | | vision for motorists. | | |
| Q. Improve the | Inadequate sight distance at the curve near the east edge of Waldport (east of slough bridge, near the RV Park). | | Incomplete | Advance – Revisit/ |
| Inadequate Sight Distance | | | | update Highway 34/ |
| at the Curve in East | | | | Waldport Heights |
| Waldport | | | | intersection |
| | Conduct a study to determine appropriate improvements, i.e. that vary from creating a landscaped drainageway with pedestrian and bicycle path to covering Red Ditch to provide for additional parking. | | Incomplete | Advance – May |
| | | | | want to reconsider |
| | | | | covering ditch to |
| | | | | create more |
| S. (South) Highway 101 | Long term provide a continuous center turn lane between the seawall and Beachside State Park on Highway 101. | | Incomplete | Advance – Should |
| Continuous Center Turn | | | | be Patterson State |
| Lane to Beachside State | | | | Park (Not |
| Park | | | | Beachside) |
| T. Highway 101/Spring | Improvements to prevent southbound Highway 101 traffic from accessing eastbound Spring Street which is currently prohibited but physically possible. | | Complete | |
| Street Turning Movement | | | | |
| Improvements | | | | |
| Project | Description | Status | Advance, Remove, |
|---|---|---|---|
| | | | Reconsider |
| U. Additional Downtown Parking | Provide additional parking for downtown businesses, particularly for Highway 101 businesses. This may occur through a central parking lot(s) located close to downtown businesses. Potential sites, near Hwy. 101, were identified in the planning process. However, a decision was made not to specifically identify (in the TSP) privately-owned parcels that may be utilized for future downtown parking. This decision was made in order to be sensitive to the needs of existing property owners, and to help ensure that land asking prices are not escalated due to a perception that the City is interested in acquiring specific parcels. The City should pursue acquisition of parcels near Highway 101 for additional public parking in the future. | Ongoing | |
| V. Downtown Access Management and Pedestrian Circulation Improvements | Potential improvements include consolidation of driveways and a continuous, consistent pedestrian facility (sidewalk) on both sides of Highway 101 and Highway 34. | Ongoing | |
| W. Improve Auto, Bus, Bicycle, and Pedestrian Improvements at Waldport High School | Better define circulation for automobile, bus, bicycle, and pedestrian circulation and provide additional parking. | Ongoing | Advance – This was |
| | | | for former high |
| | | | school location – |
| | | | Need improved |
| | | | transportation |
| | | | facilities at school |
| | | | campus |
| Description | | Status | Advance, Remove, |
|---|---|---|---|
| | | | Reconsider |
| Increase public transit (bus and van) service between Waldport and other cities, i.e. Newport, Lincoln City, Corvallis, Salem, and Portland. Improved public transit service and increased ridership can occur through alternative mechanisms: » Increasing public awareness of the existing service that currently runs four times a day during the week; » Increasing public transportation trips to include weekend, early morning, and evening services; » Physical public transportation-related improvements within Waldport, i.e. ensuring an adequate number and easily identifiable drop-off/pick-up locations; and attractive bus/van shelters with routing and scheduling information. | | Ongoing | |
| | Provide safe pedestrian crossings at intersections on Highway 101 and Highway 34. | Ongoing | |
| | Potential crosswalk improvements could include striping and other markings making | | |
| | motorists aware of pedestrians, pavement color and texture improvements, signage, | | |
| | lighting, and curb extensions. Pedestrian crossings on Highway 101 and Highway 34 are | | |
| | recommended at the following locations: | | |
| | » Highway 101/Highway 34 | | |
| | » Highway 101/Willow Street | | |
| | » Highway 101 near the Bakery and Flounders | | |
| | » Highway 101 near the Texaco Station | | |
| | » Highway 34/John Street | | |
| | » Highway 34/Cedar Street | | |
| | » Highway 34/Commercial Street | | |
| | » Highway 34/Crestline Drive | | |
| | » Highway 34/Verbena Street | | |
| Description | Status | Advance, Remove, |
|---|---|---|
| | | Reconsider |
| Require new development to provide connections to adjacent streets and pedestrian/bicycle facilities. This should occur through the land use application process and include provisions that transportation improvements be constructed concurrent with development, that right-of-way be dedicated, and that connections to adjacent properties occur to ensure future development connectivity. | Ongoing | |
| When redevelopment occurs, ensure adequate and safe access occurs, i.e. ingress and egress issues near intersections. | Ongoing | |
| Ensure transportation facilities are in accordance with Americans with Disability Act standards wherever possible, and that public transportation services accommodate special needs, i.e. disabled and elderly. | Ongoing | |
| ODOT plans to upgrade the Hwy. 34 Lint Slough Bridge in 2011. | Incomplete | Advance – New |
| | | bridge under |
| | | construction |
| Project | | Description | Status | Advance, Remove, |
|---|---|---|---|---|
| | | | | Reconsider |
| K. New East-West Road in South Waldport Connecting Hwy. 101 and Crestline Drive | | A new east-west road(s) connecting Highway 101 and Crestline Drive would serve the developing industrial area and reduce truck traffic on Range Drive and Crestline Drive. It would also serve the developing residential zoned land and the Crestview Heights School, particularly for traffic approaching this area from Highway 101, south of the City. Potential locations include: » West from Crestline Drive through the industrial zoned land and through land currently located outside the Urban Growth Boundary. This would necessitate an exception to the statewide goal of prohibiting development of new roads outside urban growth boundaries; » Extend Seabrook Lane east and south, connecting to Crestline Drive south of the Golf Course, i.e. Green Dr. » East from Highway 101 near the existing weigh station connecting to Crestline Drive south of the Golf Course. | Incomplete | |
| L. Highway 34 Improvements – Hwy. 101 to Crestline Drive | | Center turn lane, landscaped medians, sidewalks, curb extensions, parking improvement, and landscaping/ street furniture. | Incomplete | |
| M. Highway 101 – Keady Wayside to Ocean Hills Drive Corridor Plan | | Develop and implement a highway corridor plan to ensure that this section of Highway 101 will properly function in the future, i.e. alternative travel lane configurations such as the need for center turn lanes, right turn refuge lanes, local street connectivity, access management, sight distance issues, bicycle and pedestrian facilities, and storm drainage improvements. | Incomplete | |
| | N. Improve the Inadequate | Improve the inadequate sight distance at Highway 34 and Waldport heights Drive. | Incomplete | |
| | Sight Distance at the Curve | | | |
| | at Hwy. 34 and Waldport | | | |
| | Heights Drive | | | |
| Description | Status | Advance, Remove, |
|---|---|---|
| | | Reconsider |
| Crestview Heights School to Range Drive via the west side of the golf course. | Incomplete | |
| An east Waldport loop including a pathway along the slough. | Incomplete | |
| Pedestrian access between Crestline Drive and Waldport High School. There is an existing partial, unimproved pedestrian connection. This connection would likely require right-of-way acquisition or an easement through private property. Due to topographic constraints, this connection would likely be pedestrian-only. | Incomplete | |
| Connections between residential developments, i.e. from Norwood Drive and Dolores Drive to Kelsie Way and Forest Parkway, along Pacific View Drive, etc. These ped/bike connections would typically occur through the land use application process where the City will require connections concurrent with land development. | Incomplete/ Ongoing | |
| An east-west oriented pathway connection. There is an existing unimproved pathway along this route. | Incomplete | |
| A trail connecting Waldport Heights to the City Water Plant to Lint Slough. | Incomplete | |
| Project | | Description | | Status | | Advance, Remove, |
|---|---|---|---|---|---|---|
| | | | | | | Reconsider |
| US 101 Seawall Long-Term Phase | | Widen travel lanes, shoulder/bike lanes to ODOT standards, build retaining wall | | Incomplete | | Advance –2018-21 |
| | | | | | | STIP project – design |
| | | | | | | only City decisions |
| | | | | | | on whether to |
| | | | | | | proceed in February |
| US 101 Seawall Bridgeview Multi-Use Path Long-Term Phase | | Bridgeview multi‐use trail on east side traversing down slope to US 101 at maintenance road intersection (includes 6’ retaining walls) | | Incomplete | | |
| US 101 Seawall Shoulder bikeway on US 101 east shoulder from maintenance road to Maple | | Widen shoulder to 8’ on east side of US 101 from powerline easement maintenance road intersection to Maple Street | | Incomplete | | |
| US 101 South Highway | | Provide separated 6’ sidewalks both sides for full section and construct continuous two‐ direction left turn lane from Adahi Avenue to Range Drive, and from Range Drive to Ocean Hills Drive. | | Incomplete | | |
| US 101 South Multi‐use Path Parallel to 101 on East Side | | Provide multi‐use path from Forestry Way‐Kelsie Lane to North Forest Service Drive (10’ asphalt path with 2’ gravel shoulders each side) | | Incomplete | | |
| | US 101 South Highway | | Realign Patterson State Park Entrance and Ocean Hills Drive | | Incomplete | Advance |
| US 101 South | | | Provide protected pedestrian crossing of US 101 at Ocean Hills/Patterson State Park | Incomplete | | |
| | | | Entrance by widening highway, constructing center median island, pedestrian‐actuated | | | |
| | | | flashing beacon, and striped crosswalk. | | | |
| | Description | | Status | | Advance, Remove, |
|---|---|---|---|---|---|
| | | | | | Reconsider |
| | Protected pedestrian crossing of US 101 Immediately south of realigned Forestry Way‐ Kelsie Lane extension intersection to include constructing center median island, pedestrian‐actuated flashing beacon, and striped crosswalk. | | Incomplete | | |
| S1: Alley from Range Drive | | Provides a 20’ alley “backage road” for adjacent property access (thereby reducing | Incomplete | | |
| to New Kelsie‐Forestry Way | | congestion on US 101) and to serve as a local north‐south bicycle and pedestrian | | | |
| Connection | | connection. | | | |
| | | Extends Kelsie Lane from its current western terminus westward via Forestry Way to | Incomplete | | Advance – |
| | | intersect with US 101 directly opposite Corona Court. This is the portion of this connection | | | Reconsider |
| | | inside the Study Area. | | | alignment at US 101 |
| | Provides a connection from Norwood Drive Extension (S4) to Skyline Terrace (via S11). | | Incomplete | | |
| | Provides a new north‐south connection from the south terminus of Norwood Drive to the new Forestry Way‐Kelsie Way extension. | | Incomplete | | |
| | Extends Dolores Drive from its current terminus south and east to connect to a new north‐ south street between Norwood Drive and Wedge Drive. | | Incomplete | | |
| | Connects Wedge Drive from its western terminus west of Fairway Drive to Forest Parkway | | Incomplete | | |
| S8: Park Drive Extension* | | Extends Park Drive westward to Wedge Drive to‐Norwood Drive extension (S12). | | Incomplete | Reconsider |
| Project | | Description | | Status | | Advance, Remove, |
|---|---|---|---|---|---|---|
| | | | | | | Reconsider |
| S9: Ocean Terrace Extension | | Extends Ocean Terrace southward to vacant undeveloped land to south. | | Incomplete | | |
| S10: Seabrook Lane Extension to Range Drive | | Extends Seabrook Lane eastward to connect with Range Drive opposite Fairway Drive. | | Incomplete | | |
| S11: Norwood Drive to Skyline Terrace Connection* | | Provides the eastern portion of the connection from Norwood Drive Extension (S3) to Skyline Terrace. This is the portion of this connection outside the Study Area. | | Incomplete | | |
| S12: Wedge Drive to Norwood Connection | | Provides connection from Wedge Drive to Norwood Drive. | | Incomplete | | |
| | P2: Corona Beach Access | | Improve/sign existing access trail to beach from Corona Court. | | Incomplete | Advance |
| P3: Waziyata Beach Access | | Improve/sign existing access trail to beach from Waziyata Avenue. | | Incomplete | | Advance – |
| | | | | | | Completion by |
| P4: Sherwood Beach Access | | Improve/sign existing access trail to beach from Sherwood Lane. | | Incomplete | | |
| P5: State Park Beach Access | | Improve/sign existing access trail to beach from state park. | | Complete | | |
| P6: Seawoods Terrace to Sherwood Lane Trail Connection | | Improve/sign existing trail from Seawoods Terrace to Sherwood Lane. | | Incomplete | | |
| Project | | Description | | Status | | Advance, Remove, |
|---|---|---|---|---|---|---|
| | | | | | | Reconsider |
| P10 Phase 1: Powerline Corridor Multi-use Trail North using existing maintenance road to US 101 | | Powerline multi-use trail from North Forest Service Drive to North Terminus (maintenance road), includes bridge over creek | | Incomplete | | |
| P10 Phase 2: Powerline Corridor Multi-use Trail North ADA-accessible connection to US 101 | | Powerline multi-use trail traversing down slope to US 101 at maintenance road intersection (includes 6’ retaining walls) | | Incomplete | | |
| P11: Shoulder bikeway on US 101 east shoulder from maintenance road to Maple | | Widen shoulder to 8 feet on east side of US 101 from powerline easement maintenance road intersection to Maple Street | | Incomplete | | |
| P12: Forest Service North Multi-use path to US 101 | | Construct multi-use path to connect with Norwood Drive extension (S4) to US 101 slightly north of Waziyata | | Incomplete | | |
| | P14: Southmayd Lane to | | Improve existing trail on city easement from eastern terminus of Southmayd Lane to | Incomplete | | |
| | Seabrook Terrace Trail | | Seabrook Terrace. | | | |
| P15: Sailfish Loop to Seabrook Terrace Nature Trail | P15: Sailfish Loop to | Improve/sign existing nature trail from Sailfish Loop to Seabrook Terrace Trail. | | Incomplete | | |
| | Seabrook Terrace Nature | | | | | |
| P16: Seabrook Terrace to Range Drive Nature Trail | | Improve/sign existing nature trail from Seabrook Terrace to Range Drive. | | Incomplete | | |
| P17: Skyline Drive to Norwood Drive Nature Trail | | Improve/sign existing nature trail from Skyline Drive to Norwood Drive. | | Incomplete | | |
| | P18: Skyline Drive Trail | | Improve existing nature trail from Skyline Drive south terminus to 500’ westward. | | Incomplete | Advance |
*Connection identified in the 1999 TSP as a planned trail connection. Yaquina John Point identifies this as a full roadway improvement, superseding the planned trail identified in the TSP at this location.
|
Annual Report 2005-06
KVK Mayurbhanj-I
BRIEF DESCRIPTION KRISHI VIGYAN KENDRA MAYURBHANJ, SHAMAKHUNTA
The Krishi Vigyan Kendra, Mayurbhanj is established at Shamakunta as per the sanction of ICAR vide letter No.3-56-93-AE-II dt.19.05.05 of the Deputy Secretary (AE), ICAR and is functioning from 28 th May, 2005. As a premier institution for transfer of technology from lab to land, Krishi Vigyan Kendra is aiming to solve the problems of farmers in his own field through the principle of learning by doing and seeing is believing, covering all the branches of agriculture and allied lines like animal husbandry, fishery, agriculture engineering, forestry and home science etc. Krishi Vigyan Kendra is a multidisciplinary approach for overall upliftment of the farmers through self-development in knowledge, skill, attitude and behavioral attributes.
Mandate:
i) Vocational training to farmers/farm women/rural youth on agriculture and allied fields like animal husbandry, fishery, Agril, Engineering, forestry and home science.
ii) In-service training to extension functionaries on advanced technology.
iii) Frontline demonstration on different crops and practices.
iv) On-farm testing in a location specific farming system perspective.
Basic information of the Agro-climatic Zone: North Central Plateau
Climate : Hot and humid
Rainfall:
1554mm annually
Mean max. Summer temp : 36.6 0 C
Mean Winter temperature:
11.1 0 C
Soil groups : Lateritic, Red & Yellow and Mixed red and
black
Latitude
Basic information of the district
85
o
o
40' to 87 11' east
ANNUAL REPORT -2006
1. KVK Code :
2. Name of the KVK :
3. Address of KVK :
Telegraphic Address Telephone No. with STD
KRISHI VIGYAN KENDRA, MAYURBHANJ
Krishi Vigyan Kendra, Mayurbhanj
At/P.O.- Shamakhunta
Dist. Mayurbhanj, Orissa Pin. - 757049:
……………………………………………………
:
e-mail :
| | STD Code |
|---|---|
| Office | |
| Residence | |
| Fax | |
………………………………………………………
4. Name of the Host Institution :
Orissa University of Agriculture and Technology, Bhubaneswar
5. Address of the Host Institution :
Telegraphic Address :
Telephone No. with STD :
e-mail
……………………………………………………
STD Code
Phone Nos
Office
Residence
Fax
0674
0674
0674
2392677
2391606
2397780:
firstname.lastname@example.org
6. Staff Position (as on March, 2006):
| Sl. | Designation | Name | Discipline | Highest degree | Pay-Scale | Date of joining |
|---|---|---|---|---|---|---|
| 1 | Training Organizer | Dr. Bhagirathi Panigrahi | Animal Sc. | Ph.D. (LPM) | 10000- 15500/- | 06-07-05 |
| 2 | Training Associate | Sri Jagannath Patra | Ext. Edu. | M. Sc. (Ag) | 8000-13500/- | 18-07-05 |
| 3 | Training Associate | Ms. Manasi Bhol | Home Sc. | M.Sc (Home Sc.) | 8000-13500/- | 02-01-06 |
| 4 | Training Associate | Sri Sangram Keshari Swain | Ag. Eng. | M.Sc (Ag. Tech.) | 10000- 15500/- | 07-01-06 |
| 5 | Training Associate | Ms.Sanghamitra Pattanayak | Horticulture | M. Sc. (Ag) | 8000-13500/- | 10.01.06 |
| 6 | Training Associate | Ms. Arundhati Sasmal | Plant Protection | M. Sc. (Ag) | 8000-13500/- | 10.01.06 |
| 7 | Training Associate | Vacant | | | 8000-13500/- | |
| 8 | Training Assistant | Sri Dillip Ranjan Sarangi | Soil Sc. | M. Sc. (Ag) | 5500-9000/- | 20.01.06 |
| 9 | Farm Manager | Sri Biswanath Sahoo | Horticulture | M. Sc. (Ag) | 5500-9000/- | 06.07.05 |
| 10 | Computer Programmer | Sri Jitendra Kumar Panda | Information Technology | M. Sc. (IT) | 5500-9000/- | 27.01.06 |
| 11 | Office Suptd.-cum- Accountant | Vacant | | | | |
| 12 | Junior Steno. Cum Computer Operator | Vacant | | | | |
| 13 | Driver cum Mechanic | Vacant | | | | |
| 14 | Driver cum Mechanic | Vacant | | | | |
| 15 | Supporting Staff | Sri Manoranjan Nandi | - | Under Matric | 2550-3200/- | 08-08-05 |
| 16 | Supporting Staff | Sri Dhirendranath Bera | - | do | 2550-3200/- | 06-09-05 |
7. Total Land with KVK (ha)
:
27.94 ha
| a. Under Building |
|---|
| b. Under Demonstration Units |
| c. Under Crops |
| d. Orchard/ Agro Forestry |
| e. Others |
8. Infrastructural facilities :
| Sl. No. | Particulars | Unit (No.) | Plinth area (Sq. feet) | Stage (Plinth Area) | |
|---|---|---|---|---|---|
| | | | | Complete | Incomplete |
| 1 | Administrative building (400 Sq. mt.) | Nil | - | - | |
| 2 | Farmers’ hostel (200 Sq. mt.) | Nil | - | - | |
| 3 | Staff quarters (100 sq.mt.) | 13 nos. | - | Very old (more than 50 years) | |
| 4 | Demonstration Unit (in ha) (20 sq. mt.) | Nil | - | - | |
9. Details of KVK Bank account :
| Sl. No. | Particulars | Name of the Bank | Location |
|---|---|---|---|
| 1 | With the Host Institute | | |
10. Description of Agro-Climatic zones and farming situation of the district.
Agro climatic zone :
North central plateu
Characteristic :
Hot and moist, subhumid
Rain fall:
Normal
Mean Annual Rain fall (mm.):
1534 mm
Mean max. temp. (Summer) : 36.6 0 C
Mean min. temp. (Winter) :
11.1 0 C
Broad Soil group :
Laterite, Red & Yellow, Mixed Red & Black
Agro-ecological situation (AES):
Four
AES – I
Characteristics :
Low Rainfall, Low Elevation
Blocks (Five) : Tiring, Rirangpur, Rasgovindpur, Bahalda, Shuliapada
AES – II
Characteristics :
Low Elevation, Medium Rainfall Baripada, Badasahi, Shamakhunta, Khunta, GB Nagar Betonati, Muruda, Kuliana, Bangiriposi, Udala, Saraskana, Kusumi, Bishoyee, Bijatota, Jamuda
Blocks (Fifteen) :
AES – III
Characteristics :
Low Elevation, High Rainfall
Blocks (One) : Kaptipada
AES – IV
Characteristics :
Medium Elevation, Medium Rainfall Karanjia, Sukruli, Jashipur, Raruan, Thakurmunda
Blocks (Five)
:
11. Thrust areas ideentifioed throiugh PRA, Survey or any other method
i. Seed production technique in Paddy and vegetables
ii. Vermicomposting and organic farming
iii. Off-season vegetable cultivation
iv. Commercial floriculture
v. Paddy straw and Oyster mushroom cultivation
vi. Value addition of fruits and vegetables
vii. Nutritional garden
viii. Broiler farming and backyard synthetic poultry rearing
ix. Commercial goatery
x. Use of improved farm implements like paddy thresher and paddy winnower, Groundnut planter, fertilizer broadcaster, Power tiller, tractor operated implments
12. Training Achievement – On Campus
A. Training of farmers/ farm-women (Period: From April' 05 to March' 06)
Summery of training for farmer/farm-women (Period: From April' 05 to March' 06)
| Subject | No. of Pragr a- mme | Dur. (Day s) | | | | | | | | | | | |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| | | | SC | | | ST | | | Other | | | | |
| | | | M | F | Total | M | F | Total | M | F | Total | M | F |
| Crop Production | 2 | 4 | - | - | - | 27 | - | 27 | 23 | - | 23 | 50 | - |
| Horticulture | 2 | 4 | - | 1 | 1 | 36 | 11 | 47 | 2 | - | 2 | 38 | 12 |
| Plant Protection | 2 | 5 | 3 | - | 3 | 24 | 1 | 25 | 22 | - | 22 | 49 | 1 |
| Live Stock Production & Management | 2 | 4 | - | 1 | 1 | 4 | - | 4 | 13 | 32 | 45 | 17 | 33 |
| Agril. Engineering | 1 | 2 | 1 | - | 1 | 9 | - | 9 | 15 | - | 15 | 25 | - |
| Extension Education | 2 | 5 | 1 | 1 | 2 | 15 | 2 | 17 | 7 | 24 | 31 | 23 | 27 |
| Total | 11 | 24 | 5 | 3 | 8 | 115 | 14 | 129 | 82 | 56 | 138 | 202 | 73 |
B. Training of Rural Youths (Period: From April' 05 to March' 06)
| Title of Training | Durati -on (Days) | No. of participant | | | | | | | | | | | |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| | | SC | | | ST | | | Other | | | Total | | |
| | | M | F | Total | M | F | Total | M | F | Total | M | F | Total |
| Horticulture | | | | | | | | | | | | | |
| 1. Commercial Floriculture | 2 | - | - | - | 25 | - | 25 | - | - | - | 25 | - | 25 |
| Total | | | | | | | | | | | | | |
| Extension Education | | | | | | | | | | | | | |
| 1. Paddy straw mushroom cultivation | 2 | - | - | - | 2 | 1 | 3 | 13 | 9 | 22 | 15 | 10 | 25 |
| Total | 2 | - | - | - | 2 | 1 | 3 | 13 | 9 | 22 | 15 | 10 | 25 |
Summery of training for Rural youth (Period: From April' 05 to March' 06)
| Subject | No. of Pragr a- mme | Dur. (Day s) | | | | | | | | | | | |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| | | | SC | | | ST | | | Other | | | | |
| | | | M | F | Total | M | F | Total | M | F | Total | M | F |
| Horticulture | 1 | 2 | - | - | - | 25 | - | 25 | - | - | - | 25 | - |
| Extension Education | 1 | 2 | - | - | - | 2 | 1 | 3 | 13 | 9 | 22 | 15 | 10 |
C. Training of In-service personnel (Period: From April' 05 to March' 06)
| Title of Training | Durati -on (Days) | No. of participant | | | | | | | | | | | |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| | | SC | | | ST | | | Other | | | Total | | |
| | | M | F | Total | M | F | Total | M | F | Total | M | F | Total |
| Agril. Engineering | | | | | | | | | | | | | |
| 1. Soil conservation methods | 3 | - | - | - | 2 | - | 2 | 13 | - | 13 | 15 | - | 15 |
| Total | 3 | - | - | - | 2 | - | 2 | 13 | - | 13 | 15 | - | 15 |
| Extension Education | | | | | | | | | | | | | |
| 1. Training management | 4 | - | - | - | 2 | - | 2 | 13 | - | 13 | 15 | - | 15 |
| 2. Planning and Conducting Demonstration | 2 | - | - | - | 3 | - | 3 | 12 | - | 12 | 15 | - | 15 |
| 3. Preparation and use of Audio Visual Aids | 3 | - | - | - | 1 | - | 1 | 14 | - | 14 | 15 | - | 15 |
| Total | 9 | - | - | - | 6 | - | 6 | 39 | - | 39 | 45 | - | 45 |
| Grand Total | 12 | - | - | - | 8 | 8 | 8 | 52 | - | 52 | 60 | - | 60 |
Summery of training for In-service personnel (Period: From April'05 to March'06)
| Subject | No. of Pragr a- mme | Dur. (Day s) | | | | | | | | | | | |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| | | | SC | | | ST | | | Other | | | | |
| | | | M | F | Total | M | F | Total | M | F | Total | M | F |
| Agril. Engineering | 1 | 3 | - | - | - | 2 | - | 2 | 13 | - | 13 | 15 | - |
| Extension Education | 3 | 9 | - | - | - | 6 | - | 6 | 39 | - | 39 | 45 | - |
| Total | 4 | 12 | - | - | - | 8 | 8 | 8 | 52 | - | 52 | 60 | - |
13. Training Achievement – Off Campus
A. Training of farmers/ farm-women (Period: From April'05 to March'06)
| Title of Training | Durati -on (Days) | No. of participant | | | | | | | | | | | |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| | | SC | | | ST | | | Other | | | Total | | |
| | | M | F | Total | M | F | Total | M | F | Total | M | F | Total |
| Plant Protection | | | | | | | | | | | | | |
| 1.Spraying techniques of plant protection chemicals | 2 | - | - | - | - | - | - | 23 | 2 | 25 | 23 | 2 | 25 |
| Total | 2 | - | - | - | - | - | - | 23 | 2 | 25 | 23 | 2 | 25 |
| Agril. Engineering | | | | | | | | | | | | | |
| 1.Use of implements in Post Harvest Technology | 2 | 2 | - | 2 | 18 | 5 | 23 | - | - | - | 20 | 5 | 25 |
| Total | 2 | 2 | - | 2 | 18 | 5 | 23 | - | - | - | 20 | 5 | 25 |
| Women in Agriculture | | | | | | | | | | | | | |
| 1.Value addition of fruits and vegetables | 2 | - | - | - | - | 7 | 7 | - | 18 | 18 | - | 25 | 25 |
| 2.Nutritional garden | 2 | - | - | - | - | - | - | - | 25 | 25 | - | 25 | 25 |
| Total | 4 | - | - | - | - | 7 | 7 | - | 43 | 43 | - | 50 | 50 |
| Grand Total | 8 | 2 | - | 2 | 18 | 1 2 | 30 | 23 | 45 | 68 | 43 | 57 | 100 |
Summery of training for farmer/farm-women (Period: From April'05 to Mar'06)
| Subject | No. of Pragr a- mme | Dur. (Day s) | | | | | | | | | | | |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| | | | SC | | | ST | | | Other | | | | |
| | | | M | F | Total | M | F | Total | M | F | Total | M | F |
| Plant Protection | 1 | 2 | - | - | - | - | - | - | 23 | 2 | 25 | 23 | 2 |
| Agril. Engineering | 1 | 2 | 2 | - | 2 | 18 | 5 | 23 | - | - | - | 20 | 5 |
| Women in Agril. | 2 | 4 | - | - | - | - | 7 | 7 | - | 43 | 43 | - | 50 |
| Total | 4 | 8 | 2 | - | 2 | 18 | 12 | 30 | 23 | 45 | 68 | 43 | 57 |
B. Training of Rural Youths (Period: From April'05 to Mar'06)
Summery of training for Rural youth (Period: From April'05 to Mar'06)
| Subject | No. of Pragr a- mme | Dur. (Day s) | | | | | | | | | | | |
|---|---|---|---|---|---|---|---|---|---|---|---|---|---|
| | | | SC | | | ST | | | Other | | | | |
| | | | M | F | Total | M | F | Total | M | F | Total | M | F |
| Women in Agril. | 1 | 2 | - | - | - | - | - | - | - | 25 | 25 | - | 25 |
| Total | 1 | 2 | - | - | - | - | - | - | - | 25 | 25 | - | 25 |
C. Training of In-service personnel (Period: From April'05 to Mar'06) -Nil
D. Sponsored Training Programme -Nil
14. Result of Front Line Demonstration
(A) Oilseeds -Nil
(B) Pulses -Nil
(C) Farming situation and results of demonstration on Oilseed crops -Nil
(D) Farming situation and results of demonstration on Pulse crops -Nil
(E) Analytical Review of component demonstration (Crop wise separate table required) - Nil
(F) Technical Feedback
(G) Farmers' Reaction
(I) Results of FLDs other than Oilseed and Pulse Crops
N.B. – Attach a few good photographs with title at the back of photographs with pencil
| Crop | Season | Area (ha)/Nos | Area (ha)/Nos | | No. of farmers/ Demo | | |
|---|---|---|---|---|---|---|---|
| | | | Proposed | Actual | SC/ ST | Other | Total |
| Paddy Straw Mushroom | Kharif | 50 | 50 | 50 | 04 | 21 | 25 |
| Paddy | Kharif | 2.0 | 2.0 | 2.0 | 05 | - | 05 |
| Hybrid Papaya | Kharif | 0.2 | 0.2 | 0.2 | - | - | - |
| Oyster Mushroom | Rabi | 100 | 50 | 100 | 16 | 34 | 50 |
| Bee-keeping | Rabi | 05 | 02 | 05 | 01 | 04 | 05 |
(J) Farming situation and results of demonstration on Other than Oilseed and Pulse crops
| Crop | Season | Sowing Date | Harvest ing Date | Situati on | Soil Type | Agro- climatic Zone | Previous crop pattern | Status of NPK |
|---|---|---|---|---|---|---|---|---|
| Paddy straw mushroom | Kharif | 29.09.05 | 10.10.05 to 11.10.05 | homest ead | - | North- Central plateau | vacant | - |
| Paddy | Kharif | 10.07.05 | 22.11.05 to 24.11.05 | Irrigate d medium land | Loam y clay | North- Central plateau | Rice + Ground nut | - |
| Hybrid Papaya | Kharif | 25.11.05 | - | Rain fed upland | Sand y loam | North- Central plateau | Fallow | - |
| Oyster Mushroom | Rabi | 28.02.05 | 06.03.05 | homest ead | - | North- Central plateau | Vacant | - |
| Bee- keeping | Rabi | 31.03.05 | - | homest ead | - | North- Central plateau | Vacant | - |
FLD – 1 : Paddy Straw Mushroom
Interpretation and Critical Analysis of the results obtained :
Paddy straw mushroom is very much income generating entrepreneur as farmers get a minimum of Rs.50 from bed by selling mushroom @ Rs.40/- per kg with recurring investments of Rs.27/only and marketability of the product is very high.
FLD – 2 : Use of Nimin in rice
Interpretation and Critical Analysis of the results obtained:
| Variety | No. of farmers | Area (ha) | Yield of Demonstration (q/ ha) | | | | Increase in yield (%) | Cost of additional cash (Rs/ha) | |
|---|---|---|---|---|---|---|---|---|---|
| | | | Highest | Lowest | Avg . | Local check | | Demo | Local Check |
| Surendra | 05 | 2.0 | 50 | 35 | 45 | 42 | 7.1 | Rs.125/- per demo | |
Due to intervention of application of Nimin i.e., coated with Urea, the yield of paddy increased by 7% with an additional input of Rs.125/-, farmers get more income of Rs.1500/- per ha. due to maximum utilization of Nitrogenous fertilizers.
FLD – 3: Introduction of Hybrid Papaya
| Variety | No. of farmers | Area (ha) | Yield of Demonstration (q/ ha) | | | | Increase in yield (%) | |
|---|---|---|---|---|---|---|---|---|
| | | | Highest | Lowest | Avg. | Local check | | Demo |
| Farm Selection – I | 5 nos. | 0.2 | Not harvested | | | | | Rs.1000.00 per demo |
FLD – 4: Oyster Mushroom cultivation
| Variety | No. of farmers | Area (ha) | Yield of Demonstration (q/ ha) | | | | Increase in yield (%) | |
|---|---|---|---|---|---|---|---|---|
| | | | Highest | Lowest | Avg . | Local check | | Demo |
| Pleurotus Sajarcaju | 50 nos. | 100 nos. | 1.8 kg per bed | 1.2 kg per bed | 1.75 kg per bed | - | - | Rs.12 per demo |
Interpretation and Critical Analysis of the results obtained:
Oyster Mushroom cultivation is very promising drudgery reduction activity by which an entrepreneur gets Rs.30/- to Rs.35/- profit from one bed by investing only Rs.15 to Rs.20/- only and also having good marketing potentiality.
FLD – 5: Bee Keeping
| Variety | No. of farmers | Area (ha) | Yield of Demonstration (q/ ha) | | | | Increase in yield (%) | |
|---|---|---|---|---|---|---|---|---|
| | | | Highest | Lowest | Avg . | Local check | | Demo |
Interpretation and Critical Analysis of the results obtained :
15. On-farm Testing
Subject :
a. Title of experiment : Control of Kid mortality and low body weight of Goat
b. Problem : high rate of kid mortality & low body weight gain of local goat
c. Hypothesis : routine de-worming along with mineral supplements may reduce the moratlity and increase in body weight gain in local goat.
d. Experiment Year – I
e. Treatment :
3 nos.
f.
Plot Size : N.R
g. No. of farmers/ replication :
5 nos.
h. Date of intervention :
31.03.06
i.
Date of completion : Quarterly
j. Results with captions :
Awaiting
| Treatment | Replication | | | | |
|---|---|---|---|---|---|
| | 1 | 2 | 3 | 4 | 5 |
| 1.Farmers practice (No de-worming) | - | - | - | - | - |
| 2.Routine de-worming | - | - | - | - | - |
| 3.De-worming + Mineral supplements for 6 months | - | - | - | - | - |
Interpretation and Critical Analysis of the results obtained :
16. Literature developed/published (give details)
a. Research paper
b. Technical Reports
1. Annual report for Second Workshop - 2005
2. Achievement report for OUAT convocation
c. Technical bulletins
d. Popular articles
e. Extension Literature
1. Mayurbhanjare Chhatu Chasa
2. Paniparibare Paribeshapriya Keeta Niyantrana
3. Panipariba 'O' Phalara Mulyayukta Bajara Chahida Brudhi
4. Prathmika Chasa Pain Unnata Krushi Jantrapati
NB : Please enclose a copy of each. In case literature prepared in local languages please indicate the titles in English.
17. Success Story/ Case Study if any
(Two-three pages write-up with suitable photographs)
18. Constraints
a. Administrative :
Lack of Infrastructural facilities like Administrative building,
training Hall, Compound Wall, Water supply etc.
b. Technical :
Lack of demonstration units, Sophisticated Audio visual Aids
c. Financial :
19. Functional Linkage with different organization
| Sl. No | Name of the organization |
|---|---|
| 1 | Department of agriculture, Govt. of Orissa |
| 2 | Department of horticulture, Govt. of Orissa |
| 3 | Department of soil conservation, Govt. of Orissa |
| 4 | Department of animal resource development, Govt. of Orissa |
| 5 | Department of fishery, Govt. of Orissa |
| 6 | Department of forestry, Govt. of Orissa |
| 7 | Seed certification office, Govt. of Orissa |
| 8 | Orissa state seed corporation |
| 9 | Central Rice Research Institute, Cuttack |
| 10 | Central Avian Research Institute, Bhubaneswar |
| 11 | Central Institute Of Fresh Water Aquaculture, Bhubaneswar |
| 12 | ATMA, Mayurbhanj |
| 14 | Banks and MRT division of SBI |
|---|---|
| 15 | Women and child development department |
20. Performance of demonstration units (other than crops) -
Nil
21. Performance of instructional farm (crops) including seed production
| Sl No. | Crop | Area covered (ha) | Variety | Date of sowing | Date of harvesting | Total Production (please specify the unit of yield)/ Nos | Cost of Inputs (Rs) | Gross Income (Rs) |
|---|---|---|---|---|---|---|---|---|
| 1 | Paddy | 4 | Surendra (certified) | 17.7.05 | 28.11.05 | 180 Q (45 Q/ ha.) | 64000/- | - |
22. Utilization of Hostel facilities :
Not available
23. Indicate any innovative technology or any innovative methodology of Transfer of Technology developed during the year. : Nil
24. Indicate indigenous technology practiced by the farmers in the KVK operational area which can be considered for technology development (in details with suitable photographs). : Nil
25. Indicate the specific training need tools/ methodology followed for
-
Identification of courses
for farmers/ farm women : PRA outputs. Group discussion, Observation
- Rural Youth :
PRA outputs, Secondary data
- In-service personnel :
Questionnaire, Brainstorming, Group
Discussion
Any other special programme taken up by the KVK which has been financed by the
26.
state Govt./ Other Agencies:
Nil
27 (A). Seed/ Seedling/ Sapling and sold to the farmers
: Nil
28. Scientific Advisory Meetings(s) (SAC) Please indicate the date(s) of meeting(s)
:
New KVK
29. Impact of training programmes carried out during last three years in the KVK adopted villages : New KVK
30. Field activities
i. Number of Villages adopted :
Five
ii. Number of farm families selected :
425 nos.
iii. Number of Survey/ PRA conducted:
Five nos.
31. Other Extension Activities
32. Utilization of KVK funds during the year 2004-05
| Item | Sanctioned | Released |
|---|---|---|
| Pay and allowances (Rs in lakh) | 5,00,000 | 5,00,000 |
| Recurring Contingencies | 3,00,000 | 3,00,000 |
| TA | 50,000 | 50,000 |
| Non-Recurring Contingencies a. Furniture b. Tractor equipment c. Library | 50,000 5,00,000 10,000 | 50,000 5,00,000 10,000 |
| Total | 14,10,000 | 14,10,000 |
33. Utilization of funds under FLD on Oilseed/ Pulse :
Nil
34. Status of Revolving Fund (in lakhs) for 3 years
| Year | Total Sanctioned | Opening Balance | Expected Income | |
|---|---|---|---|---|
| | | | Fixed Deposit | Farm income |
35. Please indicate information which has not been reflected above (write in detail) : Nil
|
BRISANET PARTICIPAÇÕES S.A.
Publicly Held Company Corporate Taxpayer ID (CNPJ) nº 19.796.586/0001-70 Corporate Register (NIRE) 23.300.045.742
BYLAWS
CHAPTER I CORPORATE NAME, HEADQUARTERS, PURPOSE AND DURATION
Article 1 - BRISANET PARTICIPAÇÕES S,A, ("Company") is a joint-stock company, with registration as a publicly-held company before the Brazilian Securities and Exchange Commission ("CVM"), governed by these bylaws ("Bylaws") and the applicable legal provisions, in particular Law No, 6404 of December 15, 1976, as amended from time to time (" Brazilian Corporation Law") and the Novo Mercado Regulations of B3 S,A, - Brasil, Bolsa, Balcão, effective January 2, 2018 ("B3") - ("Novo Mercado Regulations").
Paragraph 1 - Upon the Company's entrance in the special listing segment called Novo Mercado (New Market), the Company, its shareholders, including controlling shareholders, senior managers and members of the Fiscal Council, when installed, are subject to the provisions of the Novo Mercado Regulations.
Paragraph 2 - The provisions of the Novo Mercado Regulation will prevail over the provisions of these Bylaws, in the event of prejudice to the rights of the addressees of the public offerings provided for in these Bylaws.
Paragraph 3 - The Company, its Management and shareholders must observe B3 Regulation, particularly the Novo Mercado Regulation.
Article 2 - The Company's head office and jurisdiction is in the City of Pereiro, State of Ceará, at Rodovia CE-138, Trecho Pereiro CE Divisa com RN - Km 14 - Estrada Carrossal Brisa 1Km, Portão A, Prédio 1, Entrada 2, 1º Andar, Sala 2, Zip Code 63460-000, where its administrative office is located.
Sole Paragraph - The Company may, when it serves its interests, open branches and close branches, offices, representations or agencies in any location in the country or abroad, by resolution of the Executive Board.
Article 3 - The Company's corporate purpose is to participate, as a shareholder or quota holder, in other companies or undertakings, in Brazil or abroad, as long as they are related to the following activities:
(i) operation of telecommunications services or activities related to the performance of these services, such as making available audio, video, image and text content, applications and the like; data center, including hosting and colocation; storage, processing and management of data,
information, text, images, videos, applications and information systems and the like;
(ii) information technology;
(iii) information and communication security;
(iv) electronic security systems related to theft, intrusion, fire and others; and
(v) licensing and sublicensing of software of any nature, among others.
Article 4 - The Company has an indefinite duration.
,
CHAPTER II CAPITAL AND STOCKS
Article 5 - The capital stock, fully subscribed and paid up, is R$1,321,859,218,92, (one billion, three hundred twenty one million, eight hundred fifty nine thousand, two hundred eighteen reais and ninety two cents) divided into 449,094,916 (four hundred forty nine million, ninety four thousand, nine hundred sixteen) common shares, all nominative, registered and without par value.
Paragraph 1 - Each common share entitles its holder to one (1) vote at the General Meetings, the ownership of the shares will be evidenced by the existing record in the shareholder's account with the depositary institution.
Paragraph 2 - The shares will be indivisible with respect to the Company, when a share belongs to more than one person, the rights conferred to it shall be exercised by the representative of the condominium.
Paragraph 3 - Subject to the provisions of the Corporation Law, these Bylaws and other applicable rules, the Company may acquire its own shares, these shares shall be held in treasury, sold or canceled, as decided by the Board of Directors, pursuant to the applicable CVM regulations.
Paragraph 4 - The issuance of preferred shares and participation certificates by the Company is prohibited.
Article 6 - Upon resolution of the Company's Board of Directors, the capital stock may be increased, regardless of amendments to the bylaws, up to the limit of 900,000,000 (nine hundred million) additional common shares to those described in the Art, 5, caput.
Paragraph 1 - The Board of Directors will set the conditions of the issue, subscription, form and term of payment, price per share, form of placement (public or private) and its distribution in the country and/or abroad.
Paragraph 2 - At the discretion of the Board of Directors, an issue may be made, without preemptive rights or with reduction of the term referred to in Article 171, Paragraph 4 of the Corporation Law, of shares, debentures convertible into shares or subscription bonuses, whose placement is made through sale on the stock exchange or by public subscription, or by exchange for shares in a public offering for the acquisition of control, under the terms established by law, within the limit of the authorized capital.
Article 7 - The Company's shares are book-entry, held in deposit accounts in the name of their holders, with a financial institution authorized by CVM.
Sole Paragraph – Subject to the maximum limits established by CVM, the cost of the service of transferring ownership of book-entry shares may be charged directly to the shareholder by the depositary institution, as defined in the share bookkeeping contract.
Article 8 - Subject to the provisions of these Bylaws and of the Brazilian Corporation Law, shareholders shall have preemptive rights to, in proportion to their holdings, subscribe for shares, subscription warrants and securities convertible into shares issued by the Company, observing the term established by the General Meeting, which shall not be less than thirty (30) days, subject to the exceptions provided for by law and by these Bylaws.
Article 9 - Should the subscriber not pay in the amount subscribed under the conditions foreseen in the bulletin or in the call required by the management body, this will constitute, by operation of law, the shareholder in default, according to Articles 106 and 107 of the Corporate Law, subjecting the subscriber to the payment of the amount in arrears, monetarily corrected according to the variation of the General Price Index to the Market, published by the Getúlio Vargas Foundation, or another index that replaces it, in the shortest periodicity legally admitted, besides a moratorium interest of twelve percent (12%) a year, pro rata temporis, and a fine corresponding to ten percent (10%) of the value of the installment in arrears, duly updated.
CHAPTER III
SHAREHOLDER'S GENERAL MEETING
Article 10 - The General Meetings will be held: (a) ordinarily, once a year, in the first 4 (four) months following the end of each fiscal year, to deliberate on the matters provided by law; or (b) extraordinarily, whenever the corporate interests so require or when the provisions of these Bylaws or the applicable legislation require a resolution of the shareholders.
Sole Paragraph - The Ordinary General Assembly and the Extraordinary General Assembly may be cumulatively convened and held at the same place, date and time, and documented in a single set of minutes.
Article 11 - Subject to the exceptions provided for in the Brazilian Corporation Law, the General Meetings shall be called, in accordance with the provisions of the Brazilian Corporation Law, by the Board of Directors, through its Chairman or by two members of the Board of Directors jointly, Regardless of any formality provided for in these Bylaws and in the Brazilian Corporation Law, any General Meeting attended by the totality of the shareholders shall be considered to be regularly installed.
Paragraph 1 - Subject to the exceptions provided by law, the General Meetings shall only be convened and validly deliberate on first call with the presence of shareholders representing at least 1/4 (one quarter) of the total voting shares and, on second call, with any number, whereby blank votes will not be counted for the deliberations.
Paragraph 2 - Shareholders may be represented at the Company's General Meetings by an attorney-in-fact appointed in accordance with Article 126 of the Brazilian Corporation Law.
Paragraph 3 - Notwithstanding the provisions of Paragraph 2 above, the shareholder who attends the General Meeting bearing the documents that prove his status as a shareholder, referred to in Article 126 of the Brazilian Corporation Law, up to the moment the Meeting opens, may participate and vote, even if he has failed to present them previously.
Paragraph 4 - The General Meetings will be conducted by the Chairman of the Company's Board of Directors or, in his absence, by a shareholder elected by the majority of the shareholders present at the General Meeting, the secretary for the General Meeting will be appointed by the President of the General Meeting from among those present at the General Meeting, whether a shareholder of the Company or not.
Paragraph 5 - The exercise of voting rights in the special cases of condominium, shareholders' agreement, usufruct, and pledged or fiduciary alienated shares is subject to the specific legal requirements and to the proofs established by law.
Paragraph 6 - Shareholders whose corporate rights have been suspended under the terms of Articles 120 and 122, item V, of the Corporation Law may not vote at the General Meeting.
Paragraph 7 - The shareholder may not vote in deliberations concerning the appraisal report of the assets with which he contributes to the capital stock and the approval of his accounts as administrator, nor in any other deliberations that may benefit him in a particular way or in which he has interests conflicting with those of the Company.
Paragraph 8 - Subject to the exceptions provided for by law, the resolutions of the General Meetings will depend on the affirmative vote of the majority of shareholders present at the General Meeting, and blank votes will not be counted.
Paragraph 9 - Minutes of the General Meeting's work and deliberations will be drawn up in the appropriate book, signed by the members of the board and by the shareholders present, From the minutes, certificates or authentic copies will be extracted for legal purposes.
Article 12 - In addition to the other matters provided for in Articles 122, 132 and 136 of the Brazilian Corporation Law, the General Meeting shall have exclusive authority to decide on the following:
(i) amendments to the Company's bylaws;
(ii) increase of the Company's capital stock, beyond the limit of the capital stock authorized in article 6 of these Bylaws, its reduction and/or the issuance of shares or any securities or securities convertible into shares of the Company and any of its subsidiaries;
(iii) approval of the cancellation of the Company's registration as a publicly-held company, as well as its exit from Novo Mercado;
(iv) approval of the initial public offering of shares of companies controlled by the Company;
(v) deliberation on any operation of merger, incorporation (including shares), split, transformation or any act of corporate reorganization involving the Company, as well as on its liquidation or dissolution;
(vi) election of the liquidator, as well as the Fiscal Council that will operate during the liquidation period;
(vii) deliberation on the judicial or extrajudicial reorganization of the Company or the filing for its bankruptcy;
(viii) election and removal of members of the Board of Directors;
(ix) setting of the overall annual compensation of the members of the Board of Directors, the Executive Board and the Fiscal Council, if installed;
(x) attributing bonus shares and deciding on any grouping and splitting of shares;
(xi) resolving, in accordance with the proposal presented by management, on the allocation of the income for the year and the distribution of dividends;
(xii) approval of any stock option plans or similar incentive and long-term compensation plans for its managers and employees, as well as for managers and employees of companies directly or indirectly controlled by the Company;
(xiii) approval of any change to the profit distribution policy of the Company and its subsidiaries and of any dividend distribution in disagreement with the profit distribution policy, pursuant to the terms of the respective bylaws and articles of incorporation, as the case may be; and
(xiv) resolving on any matter submitted to it by the Board of Directors.
Article 13 – The Board President shall observe and enforce the provisions of any shareholders' agreements filed at the Company's headquarters and is charged with not computing votes cast in violation of the provisions of such agreements.
CHAPTER IV
ADMINISTRATIVE BODIES
SECTION I
GENERAL PROVISIONS
Article 14 - The Company shall be managed by a Board of Directors and an Executive Board, as provided for by law and these Bylaws.
Paragraph 1 - The investiture of the members of the Board of Directors and of the Executive Board will take place by means of a term drawn up in a proper book, signed by the manager who takes office and contemplating his subjection to the arbitration clause dealt with in Article 48 of these Bylaws, waived any guarantee of management, and will be conditioned to compliance with the applicable legal requirements.
Paragraph 2 - The members of the Board of Directors and the Executive Board must comply with the Policy for Disclosure of Relevant Act or Fact and the Policy for Trading Securities.
Paragraph 3 - The managers will remain in their positions until the investiture of their replacements, unless otherwise deliberated by the General Meeting or by the Board of Directors, as the case may be.
Paragraph 4 - The positions of Chairman of the Board of Directors and Chief Executive Officer or main executive of the Company may not be accumulated by the same person, except in cases of vacancy in which the accumulation of the above positions must cease within one (1) year, as established by the Novo Mercado Regulation.
Paragraph 5 - Subject to the provisions of the Policy for Disclosure of Relevant Act or Fact, the Company shall disclose the resignation or removal of its managers up to the next business day on which the Company is notified of such resignation or on which such removal is approved.
Paragraph 6 - The General Meeting will set the annual global compensation for distribution among the managers and the Board of Directors will be responsible for distributing the amount individually.
Paragraph 7 - The members of the Board of Directors and the Executive Board may receive profit sharing, observing the applicable legal limits.
Paragraph 8 - The prior call for a meeting of any administrative body will only be waived as a condition for its validity if all its members are present, the members of the management body who manifest their vote by means of the delegation made in favor of another member of the respective body, by anticipated written vote, and by written vote transmitted by e-mail or by any other legitimate means of communication that can be proven its authorship and origin, in this case, until the closing of the respective meeting, are considered present.
SECTION II BOARD OF DIRECTORS
Article 15 - The Board of Directors will be composed of at least five (5) and at most seven (7) effective members, shareholders or not, resident in Brazil or abroad, all elected and removable by the General Meeting of Shareholders, the members of the Board of Directors elected by the General Meeting will not have alternates for their positions elected and dismissible by the General Meeting.
Paragraph 1 - The term of office of the members of the Board of Directors will be 2 (two) years, reelection being allowed, The Board Members may be removed from office during their term of office and replaced at any time.
Paragraph 2 - A minimum of two (2) or twenty percent (20%), whichever is greater, of the members of the Board of Directors shall be independent board members, expressly characterized as such based on the criteria and requirements established by the Novo Mercado Regulation; the qualification of the nominees to the Board of Directors as independent board members must be deliberated at the General Meeting that elected them, and the board members elected by means of the options provided for in article 141, paragraphs 4 and 5, of the Corporation Law, in the event there is a controlling shareholder, shall also be considered independent.
Paragraph 3 - When the calculation of the percentage referred to in the Paragraph above yields a fractional number, it will be rounded up to the next whole number.
Paragraph 4 - The Board of Directors will have a Chairman elected by the General Meeting, The Chairman will have, in addition to his own vote, the casting vote in the event of a tie in voting as a result of the eventual composition of an even number of members of the Board of Directors, Each member of the Board of Directors will have the right to one (1) vote in the deliberations of the body, In the event of a tie in the vote as a result of a possible composition of an even number of members of the Board of Directors and absence of the Chairman at the meeting, the matter must be re-presented at the subsequent meeting with the presence of the Chairman.
Paragraph 5 - In case of vacancy, impediment or permanent absence of any Board member, including the Chairman, the remaining members of the Board of Directors shall appoint a substitute, in compliance with the rules of the Company's "Nomination Policy for Members of the Board of Directors, Statutory Management and Committees" and the Shareholders' Agreement to which it is a party, and shall serve on an interim basis until the General Meeting following the vacancy, If vacancies occur in the majority of the members of the Board of Directors, the General Meeting will be convened to proceed with a new election, under the terms of Article 150 of the Brazilian Corporations Law.
Article 16 - The Board of Directors will meet, ordinarily, quarterly, according to an annual calendar to be approved by the Board of Directors ("Annual Calendar") and, extraordinarily, whenever and to the extent that the Company's business and corporate interests so require, The Chairman of the Board of Directors shall preside over the meetings of the Board of Directors and shall appoint one of those present (who need not be a Board Member) to act as secretary, The majority of the Board of
Directors members present shall decide who will preside over the meeting, should the Chairman of the Board of Directors be absent, and the substitute shall indicate among those present the one who will act as secretary of the meeting.
Paragraph 1 - Subsequent to its approval, the Annual Calendar will be sent to all members of the Board of Directors, including those who may be absent from the meeting at which the respective Annual Calendar was approved.
Paragraph 2 - The meetings of the Board of Directors shall be called by written notice sent by the Chairman of the Board of Directors or by the other members, as the case may be, by mail or e-mail, all with return receipt, to the address previously indicated by each Director for this purpose, The call notice will contain information about the place, date, time and agenda of the meeting (which cannot include generic matters), and will be sent with all the documents that will be subject to deliberation, The first call notice will be sent at least five (5) business days prior to the meeting date, and, if the meeting is not held, a new second call notice will be sent at least two (2) business days prior to the new meeting date.
Paragraph 3 - Notwithstanding the formalities set forth in the Paragraph above, the meetings of the Board of Directors will be considered duly installed and regular when all its members are present, under the terms of Article 14, Paragraph 5 of these Bylaws.
Paragraph 4 - Meetings via teleconference, videoconference or other means of communication that allow the identification of the board member and simultaneous communication with the other persons present at the meeting will be admitted, The members of the Board of Directors that participate remotely in the meeting of the Board of Directors shall express their votes by means of an electronic communication (e-mail) sent to the Chairman of the Board of Directors that unequivocally identifies the sender and the vote of the member of the Board of Directors taken based on prior knowledge of the matters deliberated in the meeting, The members who cannot participate in the meeting by any of the means mentioned above may be represented at the meeting by another member of the Board of Directors through the granting of a power of attorney with specific powers, or send their vote in writing to the Chairman of the Board of Directors or to the president of the board meeting before its installation or until its conclusion, via electronic communication (email), and the president of the board meeting is empowered to sign the respective minutes of the meeting on behalf of the member who is not physically present.
Paragraph 5 - The members of the Board of Directors may consent to waive the meeting and decide on the matters to be discussed in writing if they consider that such matters have already been sufficiently discussed by any other means and provided that all members of the Board of Directors execute a written document formalizing such consent.
Paragraph 6 - Minutes of the meetings will be drawn up in a proper book, signed by all members present, with due regard for the provisions of paragraph 3 above, and those containing resolutions intended to produce effects before third parties shall be filed with the Commercial Registry.
Paragraph 7 - The Executive Officers must provide the Board of Directors with any and all information requested in relation to the Company and its subsidiaries and, if requested, must attend meetings of the Board of Directors in order to provide clarification.
Paragraph 8 - The Board of Directors cannot deliberate on any matter that was not included in the notice of convocation, except in the case where all members of the Board of Directors attend the meeting and agree to deliberate on it.
Article 17 - Unless there are special cases provided for in the Brazilian Corporation Law and in the first paragraph of Article 19 of these Bylaws, the decisions of the Board of Directors will be taken by majority vote of the members of the Board of Directors present at the respective meeting.
Article 18 - The Board of Directors, for its advisory purposes, may create executive or advisory committees, permanent or not, to analyze and manifest on any subject, as determined by the Board of Directors, always with the purpose of assisting the Board of Directors in its duties, The members of such committees, whether shareholders or not, must have specific experience in the areas of competence of their respective committees, be elected and have eventual remuneration fixed by the Board of Directors.
Article 19 – It is incumbent on the Board of Directors, in addition to the duties established by law:
(i) to call General Meetings of the Company when it deems appropriate, or in the cases provided for in these Bylaws and in the Brazilian Corporation Law;
(ii) to elect and dismiss members of the Executive Board and to determine their attributions, in compliance with the Policy for the Appointment of Members of the Board of Directors, the Executive Board and the Company's Committees;
(iii) to carry out the IPO and initial public offering of shares of subsidiaries or affiliates of the Company;
(iv) to modify the policy for distribution of profits of the Company's subsidiaries and the declaration of dividends, or any other form of distribution of profits or resources by the Company's subsidiaries, including interest on equity capital, in excess of twenty-five percent (25%) of the net income for the fiscal year;
(v) to inspect, supervise, advise and support the Executive Board in the fulfillment of the Company's corporate purpose;
(vi) to increase the consolidated indebtedness composed of: (i) onerous liabilities with financial institutions or similar entities; (ii) commercial leasing/financial leasing; (iii) public or private securities, representing debt; and (iv) liabilities arising from the Company's derivative financial instruments in excess of 3,2 times the consolidated EBITDA (earnings before interest, income taxes including social contribution on net income, depreciation and amortization)
for the twelve (12) months preceding the event in question, as adjusted pro forma in the case of material acquisitions or expansions in the period;
(vii) to resolve on the acquisition of interest in the capital stock of another company, group of companies or consortia, or of a substantial part of the assets or business of other companies, by the Company or its subsidiaries, provided that such acquisitions do not exceed na amount corresponding to up to 2,5% (two and a half percent) of the net equity at the end of the fiscal year of the previous year;
(viii) to resolve on the acquisition or establishment, by the Company or by its controlled or subsidiary companies, of new subsidiaries having as partner any person other than the Company or its controlled or subsidiary companies, provided that such acquisitions do not exceed the amount corresponding to 2,5%(two and a half percent) of the net equity at the end of the fiscal year ended in the previous year;
(ix) to decide on the execution of new agreements, amendments to existing agreements or termination of operations or existing agreements with related parties of the Company or its subsidiaries, including lease agreements;
(x) to approve the leasing or renting of assets by the Company or its subsidiaries that is not foreseen in the annual budget and that exceeds, in one or more related operations, R$ 1,500,000,00 (one million and five hundred thousand reais), per fiscal year ;
(xi) to approve the divestiture, assignment, transfer, creation of any liens or disposition of assets by the Company or its subsidiaries, in any case exceeding, in one or more related transactions, per fiscal year, up to five percent (5%) of the net equity at the end of the previous year;
(xii) to approve any merger, consolidation (including stock merger), spin-off or any act of corporate reorganization involving any controlled or subsidiary company of the Company;
(xiii) to approve the granting of any in rem or fiduciary guarantees, including endorsements and sureties, by the Company or its subsidiaries, for the benefit of any third party, regardless of the amount of the guarantee, except when such guarantee is provided in the context of obligations assumed by the Company or its subsidiaries that have been approved under items (viii), (ix) and (xiii) above;
(xiv) to resolve on the alteration of the business of any subsidiary of the Company and the initiation of any business that is materially different from the current business of any subsidiary of the Company, subject to the Company's corporate purpose set forth in Article 3 of these Bylaws;
(xv) to resolve on the transformation, liquidation or dissolution of the Company's subsidiaries;
(xvi) to deliberate on voluntary requests for judicial or extrajudicial reorganization, self-bankruptcy or insolvency proceedings of the Company's subsidiaries;
(xvii) to appoint and dismiss the Company's and/or its subsidiaries' independent auditor;
(xviii) to decide on the allocation of profits and the distribution of dividends, including interim or intercalary dividends or interest on equity, ad referendum of the General Meeting;
(xix) to elect or appoint the senior managers of the companies controlled by the Company;
(xx) to set the general orientation and strategic direction of the business of the Company and its subsidiaries, approving guidelines, corporate policies and basic objectives;
(xxi) to express its opinion about the management report, financial statements and the accounts of the Executive Board, after submission by the Audit Committee;
(xxii) to approve the annual budget and major changes related to it;
(xxiii) to resolve on the issuance of shares of the Company, within the limits authorized in Article 6 of these Bylaws, fixing the conditions of issuance, including the price and payment term, and may also exclude (or reduce the term for) the preemptive right in issues of shares, subscription warrants and convertible debentures, whose placement is made through sale on the stock exchange or by public subscription or in a public offering for the acquisition of control, under the terms of the current legislation;
(xxiv) to deliberate on the public or private issue of non-convertible debentures, promissory notes and other securities not convertible into shares;
(xxv) to decide on the granting of any and all guarantees, including in rem and fiduciary guarantees, in favor of third parties;
(xxvi) to approve the creation of advisory committees to the Company's management;
(xxvii) to approve the company's internal regulations or regulatory acts and its administrative structure, including, but not limited to: (a) code of ethics; (b) compensation policy; (c) nomination policy for members of the board of directors, statutory management and committees; (d) risk management policy; (e) policy on transactions with related parties; (e) disclosure policy of relevant acts and/or facts; and (g) policy for trading securities;
(xxviii) to grant stock options or similar benefits to its senior managers, employees and service providers, as well as to the senior managers, employees and service providers of its subsidiaries, without preemptive rights for the current shareholders, in accordance with the plans approved at the General Meeting;
(xxix) to express itself in favor of or against any public offering for the acquisition of shares ("Public Tender Offer") that has as object the shares issued by the Company, by means of a grounded prior opinion, disclosed within fifteen (15) days of the publishing of the announcement of the Tender
11
Offer, and which must address, at least (a) the convenience and opportunity of the Tender Offer in relation to the interest of the Company and of the shareholders as a whole, including with regard to the price and potential impacts on the liquidity of the securities owned by the Company; (b) the strategic plans disclosed by the offeror in relation to the Company; and (c) the alternatives to the acceptance of the Tender Offer available in the market;
(xxx) to authorize the acquisition of its own shares issued by the Company for holding in treasury or for cancellation, redemption, repurchase or later disposal, except in the cases expressly provided for in the applicable regulations;
(xxxi) to approve and establish the internal regulations of the Audit Committee;
(xxxii) to comply with the other responsibilities established by law and in these Bylaws; and
(xxxiii) to express an opinion about votes to be cast by the Company or its subsidiary in the capacity of partner, shareholder or quota holder of any person in which the Company or its subsidiary holds a relevant participation in deliberations listed in items (ii) to (xxxi) above.
Paragraph 1 - Any and all transactions entered into between the Company and any of its related parties must be approved by an absolute majority of the members of the Audit Committee, which will report to the Board of Directors, Then, such related-party transaction must be approved by a majority of the members of the Board of Directors, mandatorily including all independent directors, according to the Company's Policy on Transactions with Related Parties.
Paragraph 2 - For the purposes of the provisions in Paragraph 1 of this Article 19, the competence of the General Meeting will prevail in the event of conflict between the matters to be submitted for the deliberation of the General Meeting or of the Board of Directors.
Paragraph 3 - The exercise of voting rights by members of the Board of Directors on the matters provided for in the head of this ARTICLE 19 and in any other matters within its competence, especially in deliberations regarding the exercise of voting rights by the Company within its subsidiaries and affiliates, shall observe the provisions set out in the shareholders agreement filed at the headquarters of the Company.
SECTION III
EXECUTIVE BOARD
Article 20 -The Executive Board will be composed of at least 4 (four) and at most 7 (seven) Officers, shareholders or not, residents in the country, all elected by the Company's Board of Directors and removable by it at any time, being one Chief Executive Officer, one Investor Relations Officer, one Chief Operating Officer, one
Commercial Officer and the other Officers without specific designation, for a unified term of 2 (two) years, reelection being allowed as long as Article 21, Paragraph 8 th of these Bylaws are observed.
Paragraph 1 - The Executive Officers will remain in their positions until the investiture and investiture of their respective substitutes, The competencies of the executive offices that have not been filled, or whose holder is impeded or absent, will be exercised by the executive officer that, among the others, is chosen and designated by the Board of Directors, until the designation of the respective executive officer takes place.
Paragraph 2 - In case of vacancy, resignation or definitive impediment of any Officer, a meeting of the Board of Directors will be called within 15 (fifteen) days counted from the vacancy, resignation or definitive impediment to deliberate on the election of a substitute to complete the replaced Officer's mandate.
Paragraph 3 - Any omission or act performed on behalf of the Company by any Officer that does not comply with the instructions of the Board of Directors, with the provisions of these Bylaws or with the excess of powers, shall be considered null and void and shall not bind the Company.
Paragraph 4 - The Executive Officers must be persons with an unblemished reputation, proven practical experience in their area of activity and absence of conflicts of interest, whose mandates must be exclusive.
Article 21 – The Executive Officers will have the duties defined below, according to their respective designations:
Paragraph 1 – The Chief Executive Officer (CEO) shall:
(i) represent the Company in the execution of any and all documents that imply liability or obligation to the Company, jointly with another Officer;
(ii) perform all routine administrative acts;
(iii) open and operate bank accounts, transact, cede and waive rights, and, finally, perform all normal administrative acts necessary for the achievement of the corporate purposes and regular operation of the Company, jointly with another Officer and/or attorney-in-fact;
(iv) represent the Company, actively and passively, in or out of court, before federal, state and municipal public agencies, independent entities and mixed-capital companies;
(v) build, communicate and implement the vision, mission and overall direction of the organization, managing the development and implementation of the company's overall strategy;
(vi) direct, guide and evaluate the work of other executive leaders;
(vii) ensure that the Company's strategic plan, which guides the direction of the company, is implemented;
(viii) plan and coordinate the execution of the financial, budgetary, accounting, cost, purchasing and sales policy;
(ix) contribute to strategic planning and financial management;
(x) prepare management reports, annual financial and budgetary planning, budget forecasting;
(xi) be aware of the external and internal competitive scenario, expansion opportunities, customers, markets, new developments and business industry standards;
(xii) represent the organization for civic and professional association responsibilities and activities in the local community, the state and the country;
(xiii) participate in industry-related events or associations that will enhance the CEO's leadership skills or the organization's reputation and potential for success, and make sure that team members understand that each employee is responsible for helping the company maintain its bonds;
(xiv) develop a learning organization that will continue to grow and improve the skills of the employees;
(xv) ensure that the organization's leaders experience the consequences of their actions, whether through reward and recognition or performance training and disciplinary actions; and
(xvi) appraise the organization's success in achieving its objectives.
Paragraph 2 – The Investors Relations Officer shall:
(i) be responsible for providing information to the investing public, to the CVM and to the stock exchanges or national and international over-the-counter markets, as well as to the corresponding regulatory and inspection entities, keeping the Company's registrations updated with these institutions;
(ii) represent the Company before the CVM, stock exchanges and other capital market entities, as well as to provide relevant information to investors, the market in general, the CVM and B3;
(iii) ensure that compliance policies are enforced;
(iv) keep the registration as a publicly-held company updated with the CVM; and
(v) fulfill other tasks established by law and the regulations in force.
Paragraph 3 – The Commercial Officer shall:
(i) replace the Chief Executive Officer in his/her absences and eventual impediments;
(ii) plan, organize and develop the Company's commercial strategy policies;
(iii) monitor performance indicators for his/her area;
(iv) develop a business plan to meet targets; and
(v) cooperate with the other Executive Officers in the Company's management.
Paragraph 4 – The Chief Operating Officer shall:
(i) plan, organize, control and manage the activities of the Company's technical and operational areas;
(ii) take care of the quality control of products and services; and
(iii) work towards the achievement of operational result targets.
Paragraph 6 - It is up to the Officers without specific designation the other acts of management of the Company whose competence is not attributed to the other Executive Officers designated in this Article.
Paragraph 7 - The Directors are exempt from posting bond, as permitted by law.
Paragraph 8º - The positions of Investor Relations Officer, Commercial Officer and Chief Operating Officer may be accumulated by another Officer of the Company, However, an Officer may only accumulate two (2) positions.
Article 22 -The Executive Board is not a collegiate body, but may, however, meet whenever, at the discretion of any Officer, it is necessary, in the presence of Officers representing the majority of the members of the Executive Board, and such meetings will be chaired by the Chief Executive Officer or, in his absence, by the Director who at the time is chosen by the majority of the members.
Paragraph 1 - The meetings of the Executive Board will be held at the Company's headquarters or by video conference, and the respective calls may be made by any Officer,
Paragraph 2 Calls will be made in writing and must contain the date of the meeting and the agenda, The calls must be sent at least 2 (two) days before the date of the event, by e-mail, all with proof of receipt,
Paragraph 3 - The meetings of the Executive Board shall only be installed and validly deliberated with the presence of the majority of the Directors who are in office at the time,
Paragraph 4 - The decisions of the Executive Board will be adopted by majority vote of the Officers present at the meeting, In the event of a tie in the vote due to a possible composition of an even number of members of the Executive Board, the casting vote will be taken by the Chief Executive Officer,
Article 23 - The Executive Board has the powers to perform the acts necessary to achieve the corporate purpose, observing the limits of these Bylaws, and is especially responsible for:
(i) the execution of the duties conferred by law and these Bylaws to ensure the full and regular operation of the Company and its subsidiaries, affiliates and business divisions;
(ii) submitting, annually, until the end of each fiscal year, to the appreciation of the Board of Directors, a proposal for the general orientation of the business of the Company, its subsidiaries and its business divisions, relative to the following fiscal year, including:
(a) the business strategy of the Company and its subsidiaries and affiliates;
(b) the operational structure of the business, indicating the Officer who shall be responsible for the follow-up of each of its divisions;
(c) the budget and goal plan of each executive office;
(d) the investment and divestment policy of each executive office;
(e) the compensation of the officers in each executive office;
(f) the capital structure necessary for the execution of the budget and goal plan of each executive office; and
(g) the planning of payment of interests on equity.
(iii) presenting, annually, within three (3) months after the closing of the fiscal year, to the appreciation of the Board of Directors and shareholders, its report and other documents pertaining to the accounts of the fiscal year, as well as the proposal for allocation of net income, subject to legal requirements and to the provisions of Chapter VI of these Bylaws;
(iv) preparing, based on the Company's bookkeeping, the financial statements;
(v) to approve the Company's vote in a corporate resolution on the election and dismissal of the managers of the controlled and affiliated companies, in accordance with the indications made by the Board of Directors;
(vi) opening and closing branches, warehouses, offices or representations in any location of the country and abroad, as the evolution of the business plan and goals achieved indicate to be necessary;
(vii) opening, operating and closing bank and investment accounts;
(viii) compromise, waive, desist, make agreements, enter into commitments, contract obligations, invest resources, acquire, dispose of assets, signing the respective terms and contracts involving an amount equal to or less than 0.5% of the Company's shareholders' equity, except in relation to for the approval of any investment, expense or financial application, whose value, individually or aggregated, must be equal to or less than 5% (five percent) of the Company's shareholders' equity, being certain that in amounts higher than the mentioned the competence for approval will be of the Board of Directors;
(ix) resolving on the granting of any and all guarantees, including in rem and fiduciary guarantees, in favor of its subsidiaries;
(x) representing the Company, in or out of court, actively or passively, before any third parties, including public offices or federal, state or municipal authorities; and
(xi) complying with the other attributions established by the Company's Board of Directors, by law and by these Bylaws.
Article 24 - The representation of the Company, actively or passively, in or out of court, before any third parties and federal, state and municipal public agencies or departments, as well as the signing of deeds of any nature, bills of exchange, checks, payment orders, contracts in general and any other documents or acts that may imply liability or obligation for the Company or that may exonerate the Company from obligations to third parties, shall be incumbent upon and mandatorily performed by:
(1) by one (1) Officer or one (1) attorney-in-fact, acting alone, for routine or necessary acts and measures to comply with applicable laws and to maintain the Company's regularity before government authorities, including: (a) to perform administrative acts before federal, state and municipal agencies; and (b) to sign documents and correspondences and perform routine administrative acts of the Company before third parties; or
(2) by two (2) Officers acting jointly, or one (1) Officer acting jointly with one (1) attorney-in-fact with special powers, in any transaction subjecting the Company to any commitment, obligation or liability of any amount.
Sole Paragraph - The powers of attorney granted on behalf of the Company shall necessarily be signed by 2 (two) Executive Officers and shall specify the powers granted, which shall be valid for a maximum of 1 (one) year, except for the powers of attorney intended to represent the Company in legal or administrative proceedings, which may be valid for an indefinite term, or those related to guarantees presented in transactions carried out in the financial or capital markets, which may be valid for a term established up to the settlement date of the respective financing agreement.
Article 25 - It is not allowed to use the corporate name in documents of favor and not related to the corporate objectives, such as letters of guarantee, sureties or endorsements to third parties, except for the benefit of the Company's subsidiaries in the normal course of their business.
Article 26 - Any acts of any Officer, attorney-in-fact, employee or agent that may involve the Company in obligations related to business or transactions outside the corporate purpose are expressly forbidden and shall be considered null and void in relation to the Company.
Article 27 - The Company shall forward to the members of the Board of Directors, on a monthly basis or whenever requested by them, a financial report on the situation of the Company and its subsidiaries.
SECTION IV
AUDIT COMMITTEE
Article 28 - The Audit Committee is an advisory body linked to the Board of Directors, with operational autonomy and its own budget approved by the Board of Directors.
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Sole Paragraph - The Audit Committee must adopt an internal regulation, approved by the Board of Directors, which will govern in detail the functions of the Audit Committee, as well as its operating procedures, also defining the activities of the Audit Committee coordinator.
Article 29 - The Audit Committee will be composed of at least three (3) members, elected by a simple majority of the Board of Directors, at least one (1) of whom will be an independent director of the Company and at least one (1) will have recognized experience in matters of corporate accounting.
Paragraph 1 - The same member of the Audit Committee may accumulate both characteristics referred to in the caput.
Paragraph 2 - The activities of the coordinator of the Audit Committee are defined in its internal regulation, approved by the Board of Directors.
Article 30 - It is incumbent upon the Audit Committee, among other matters:
(1) to express an opinion on the hiring and dismissal of independent audit services;
(2) to review the quarterly information, interim statements and financial statements, sending them to the Board of Directors with its recommendations;
(3) to monitor the activities of the Company's internal audit and internal controls area;
(4) to evaluate and monitor the company's risk exposures;
(5) to evaluate, monitor, and recommend to management the correction or improvement of the Company's internal policies, including the Policy on Transactions with Related Parties;
(6) to have means for receiving and processing information about non-compliance with legal and regulatory provisions applicable to the Company, in addition to internal regulations and codes, including the provision of specific procedures for protecting the provider and the confidentiality of the information; and
(7) issuing an approval opinion regarding related-party transactions, where the Audit Committee shall recommend only transactions with related parties deemed fair and under market conditions.
CHAPTER V FISCAL COUNCIL
Article 31 - The Company will have a Fiscal Council, which will operate on a nonpermanent basis and will only be installed by resolution of the General Meeting, or at the request of shareholders, in accordance with and in the cases provided for by law.
Paragraph 1 - The members of the Fiscal Council will be entitled to the remuneration established by the General Meeting of Shareholders.
Paragraph 2 - The members of the Fiscal Council must take office by signing the term of investiture that must contemplate their subjection to the arbitration clause dealt with in Article 48 of these Bylaws, as well as compliance with the applicable legal requirements, drawn up in a proper book, and must remain in their positions until the election of their successors.
Article 32 - The Fiscal Council, when installed, will be composed of at least 3 (three) and at most 5 (five) effective members and an equal number of substitutes, elected by the General Meeting that decides on the installation of the body, reelection being allowed, with the duties and terms of office established by law.
Sole Paragraph - In the event of a vacancy in the position of Fiscal Council member, the respective substitute will take his/her place.
Article 33 - The members of the Fiscal Council shall be individuals resident in Brazil, who cannot be shareholders or managers of the Company and must meet all the legal requirements to hold the position, including minimum professional qualifications, as required by the Brazilian Corporation Law and its subsequent amendments.
Sole Paragraph - No person who maintains any relationship with any company that may be considered a competitor of the Company ("Competitor") may be elected as a member of the Company's Fiscal Council, It is forbidden, among others, to elect a person who: (i) is an employee, partner, shareholder or member of an administrative, technical, advisory or fiscal body of a Bidder or of a Controller, Subsidiary or company under common Control with a Bidder; (ii) is a spouse or relative to the second degree of a partner, shareholder or member of a management, technical, advisory or fiscal body of a Bidder or of a Controller, Subsidiary or company under common Control with a Bidder; a n d (iii) is a supplier or buyer, direct or indirect, of services and/or products of the Company, in a magnitude that implies loss of independence.
Article 34 The Fiscal Council, when installed, will have the attributions established by law, and the functions of its members are non-delegable, The Internal Regulations of the Fiscal Council must be drawn up, discussed and voted on by its members at the first meeting called after its installation.
CHAPTER VI
FISCAL YEAR AND PROFITS
Article 35 - The fiscal year will begin on January 1st and end on December 31st of each year, occasion on which the balance sheet and other financial statements must be prepared in accordance with the deadlines and other conditions set forth in the applicable legislation.
Sole Paragraph - The Company's financial statements shall be audited, according to the applicable legislation, by an independent auditor, duly registered at CVM.
Article 36 - From the result of the fiscal year will be deducted, before any participation, the accumulated losses, if any, and the provision for income tax and social contribution on profit, The loss for the year must be absorbed by retained earnings, profit reserves and the legal reserve, in this order, The net income shall be allocated as follows:
(i) 5% (five percent) will be destined to the legal reserve, which will not exceed 20% (twenty percent) of the capital stock;
(ii) the amount, eventually proposed by the administration bodies, destined to the formation of a contingency reserve and revision of the same reserves formed in previous fiscal years, in the manner provided for in Article 195 of the Corporation Law;
(iii) at least 25% (twenty-five percent) of adjusted earnings according to Article 202 of the Corporation Law will be destined to the payment of the minimum mandatory dividend due to the shareholders, observing the other provisions of these Bylaws and the applicable legislation; and
(iv) the remaining balance after the deductions foreseen in items (i) and (ii) above will be allocated as deliberated by the General Meeting, in the form of the applicable legislation.
Sole Paragraph - In the fiscal year in which the amount of the mandatory dividend exceeds the realized portion of the profit for the year, the General Meeting may, by proposal of the management bodies, allocate the excess to the creation of an Unrealized Profit Reserve, in compliance with the provisions of Article 197 of the Brazilian Corporation Law.
Article 37 - The Company may:
(i) draw up semi-annual balance sheets and, based on these, declare interim dividends, to the account of the profit calculated, of the retained earnings and of the profit reserve;
(ii) draw up balance sheets for periods of less than one semester and distribute interim dividends, provided that the total dividends paid in each semester of the fiscal year do not exceed the amount of capital reserves referred to in Article 182, Paragraph 1 of the Brazilian Corporation Law; and
(iii) pay or credit to its shareholders, in the periodicity it decides, interests on equity, which will be imputed to the value of the mandatory dividend, integrating it for all legal effects.
Article 38 - By means of a proposal from the Board of Directors, ad referendum of the General Meeting, the Company may pay or credit to its shareholders interests on equity respecting the limits and rules imposed by the applicable legislation.
Article 39 - The dividends and interests on equity that are not claimed within 3 (three) years from the date they were made available to the shareholders will revert in favor of the Company.
CHAPTER VII
DISPOSAL OF CONTROL, DEREGISTERING AS A PUBLICLY-HELD COMPANY AND DELISTING FROM THE NOVO MERCADO
Article 40 - The direct or indirect disposal of the Company's control, whether by means of a single transaction or by means of successive transactions, must be contracted under the condition, either suspensive or dissolutive, that the control acquirer makes a public tender offer for the shares issued by the Company held by the other shareholders of the Company, observing the conditions and deadlines provided for in the legislation in force and in the Novo Mercado Regulations, so as to ensure them equal treatment to that given to the selling shareholder.
Sole Paragraph - The public offering referred to in this Article 40 will also be required (i) when there is an onerous assignment of subscription rights for shares and/or other securities or rights related to securities convertible into shares, or that entitle their subscription, which results in the sale of the Company's control; and (ii) in the event of disposal of control of a company that holds the Company's power of control, in which case the acquirer must disclose the value attributed to the Company for the purpose of defining the price of the Tender Offer, as well as disclose the reasoned statement of this value.
Article 41 - The Company's withdrawal from Novo Mercado may occur as a result of (i) a decision of the controlling shareholder or the Company; (ii) non-compliance with the obligations of the Novo Mercado Listing Rules; and (iii) the cancellation of the Company's registration as a publicly-held company or the conversion of the registration category at the CVM.
Article 42 - The Company's voluntary withdrawal from Novo Mercado must be preceded by a public tender offer, in compliance with the applicable legal and regulatory provisions, and observing the following requirements: (i) the price offered must be fair, which must be obtained as provided in Article 32 of these Bylaws and in other applicable legal and regulatory provisions, being possible the request for a new appraisal by the Company; and (ii) shareholders holding more than 1/3 (one third) of the outstanding shares must accept the Tender Offer or expressly agree with the delisting from Novo Mercado without selling their shares, For the purposes of the calculation referred to in the head of this Article, outstanding shares are considered to be those whose holders qualify for the Tender Offer auction or expressly agree with the exit from the Novo Mercado, in accordance with the regulations issued by the CVM applicable to public offerings for acquisition of shares of a publicly-held company for cancellation of registration.
Paragraph 1- The acceptors of the Tender Offer may not be subject to apportionment in the sale of their participation, observing the procedures for exemption from the limits provided for in the applicable regulations.
Paragraph 2 - The offeror will be obliged to acquire the remaining outstanding shares, for a period of one (1) month, as of the date of the auction, at the final price of the Tender Offer auction, updated up to the date of the effective payment, in accordance with the public notice, the legislation and the regulation in force, which must occur within, at most, fifteen (15) days as of the date of the exercise of the option by the shareholder.
Paragraph 3 - Regardless of the provision contained in the caput of this article, the voluntary withdrawal of the Company from the Novo Mercado may occur in the event of a waiver of the tender offer approved by a majority vote of the holders of outstanding shares present at a General Meeting, provided that it is installed in (i) first call, with the presence of shareholders representing at least two thirds (2/3) of the total outstanding shares, or (ii) second call, with the presence of any number of shareholders holding outstanding shares.
Article 43 - In the Tender Offer to be made by the controlling shareholder or by the Company for the cancellation of the registration as a publicly-held company, the minimum price to be offered shall correspond to the economic value ascertained in the valuation report referred to in Paragraphs 1 and 2 of this article, in compliance with the applicable legal and regulatory rules.
Paragraph 1 - The appraisal report mentioned in the caput of this article shall be prepared by a specialized institution or company, with proven experience and independence as to the decision-making power of the Company, its managers and its controlling shareholder(s), in addition to meeting the requirements of Paragraph 1 of Article 8 of the Brazilian Corporation Law, and contain the responsibility provided for in Paragraph 6 of this same article.
Paragraph 2 - The choice of the institution or specialized company responsible for determining the economic value of the Company is the exclusive competence of the General Meeting of Shareholders.
Article 44 - In the event of a corporate reorganization involving the transfer of the Company's shareholder base, the resulting company(ies) must apply for listing on the Novo Mercado within 120 (one hundred and twenty) days of the date of the General Meeting that approved the transaction.
Sole Paragraph - If the corporate reorganization operation involves a resulting company that does not intend to apply for admission to Novo Mercado, the majority of the holders of the Company's outstanding shares present at the General Meeting must agree to this structure.
Article 45 - The Company's withdrawal from Novo Mercado due to noncompliance with the obligations contained in the Novo Mercado Regulations will be conditioned to the execution of a Tender Offer to be carried out with the same characteristics described in Article 31 of these Bylaws.
Sole Paragraph - In the event of not reaching the percentage referred to in the caput of Article 31 of these Bylaws, after the Public Tender Offer, the shares issued by the Company will still be traded for a period of six (6) months in the Novo Mercado, as of the Public Tender Offer auction, without prejudice to the application of monetary sanctions.
CHAPTER VIII WINDING-UP AND LIQUIDATION
Article 46 - The death, bankruptcy, insolvency, declaration of incapacity or withdrawal of any of the shareholders will not dissolve the Company, which will continue with the other shareholders.
Article 47 - The Company shall be dissolved or liquidated in the cases provided for by law or by resolution of the General Meeting, which shall be the competent body to determine the form of liquidation and indicate the liquidator and, if it deems necessary, to install the Fiscal Council during the liquidation period, setting their remuneration.
CHAPTER IX
RESOLUTION OF CONFLICTS
Article 48 - The Company, its shareholders, managers and Fiscal Council members, effective and alternate, agree to resolve, by means of arbitration, before the Market Arbitration Chamber, pursuant to its rules, any and all disputes or controversies that may arise between them, related to or arising from their status as issuers, shareholders, managers and Fiscal Council members, and, in particular, arising from the provisions contained in Law No, 6,385, of December 7, 1976, as amended (Securities Market Law), Corporate Law, in these Bylaws, in the rules edited by the National Monetary Council, by the Central Bank of Brazil and by CVM, as well as in the other rules applicable to the operation of the Stock Market in general, in addition to those contained in the Novo Mercado Regulations, in the other regulations of B3 and in the Novo Mercado Participation Agreement.
CHAPTER X
FINAL PROVISIONS
Article 49 - The omitted cases will be regulated by the applicable provisions of the Brazilian Corporation Law.
Article 50 - The Executive Board must always ensure that related-party agreements, shareholders' agreements filed at the Company's headquarters, investment agreements and stock option programs or other securities issued by the Company are available to shareholders or are readily available upon request.
Article 51 - The Company will comply with the shareholders' agreements filed at its headquarters, pursuant to Article 118 of the Brazilian Corporation Law, and it is expressly forbidden for the Chairman of the General Meetings and meetings of the Board of Directors to accept voting declarations of any signatory shareholder or administrator bound to the shareholders' agreements filed at the Company's headquarters that have been proffered in disagreement with their respective terms, and it is also expressly forbidden for the Company to accept and proceed with the transfer of shares or other securities in non-compliance with the provisions of the shareholders' agreements filed at the Company's headquarters.
Article 52 - These Bylaws are governed by the Brazilian Corporation Law, any cases not provided for in these Bylaws shall be resolved by the General Meeting and governed in accordance with the provisions of the Brazilian Corporation Law, with due regard for the Novo Mercado Listing Rules.
Article 53 - The Company will observe, as applicable, the disclosure rules set forth in the CVM regulation and in the B3 rules, applicable to listed companies in general and to the Novo Mercado, in particular.
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1 INTRODUCTION
ATTENDANCE
Cr J Hamling (Mayor), Cr K Duffy (6.36pm), Cr G Floyd, Cr T Greenhalgh, Cr F Kinghorne, Cr D Mallard, Cr M McDonell, Cr T Mileto, Cr S Peterson, Cr G Power (Deputy Mayor), Cr J Whitton
Acting Chief Executive Officer (Greenham), Director Corporate and Commercial Services, Director Development Services, Director Community, Recreation and Cultural Services, Manager Corporate Governance
1.1 APOLOGIES
RESOLVED - 24/034
Cr J Whitton/Cr T Greenhalgh
That the apologies be accepted from Cr J Evans and Cr K Duffy (Lateness) for the Council Meeting of Orange City Council on 20 February 2024.
For: Cr J Hamling, Cr G Floyd, Cr T Greenhalgh, Cr F Kinghorne, Cr D Mallard, Cr M McDonell, Cr T Mileto, Cr S Peterson, Cr G Power, Cr J Whitton
Against: Nil
Absent: Cr J Evans, Cr K Duffy
1.2 LIVESTREAMING AND RECORDING
The Mayor advised that the meeting was being livestreamed and recorded.
1.3 ACKNOWLEDGEMENT OF COUNTRY
The Mayor conducted an Acknowledgement of Country.
ORANGE CITY COUNCIL
MINUTES OF THE
ORDINARY COUNCIL MEETING
HELD IN COUNCIL CHAMBER, CIVIC CENTRE, BYNG STREET, ORANGE
ON 20 FEBRUARY 2024
COMMENCING AT 6:30PM
1.4 DECLARATION OF PECUNIARY INTERESTS, SIGNIFICANT NON-PECUNIARY INTERESTS AND LESS THAN SIGNIFICANT NON-PECUNIARY INTERESTS
Nil.
1.5 OPENING PRAYER
Bernadette Collins of the Shalom House of Prayer led the Council in Prayer.
THE MAYOR DECLARED THE ORDINARY MEETING OF COUNCIL ADJOURNED FOR THE CONDUCT OF THE OPEN FORUM AT 6.32PM
4.2 – Notice of Motion - Lords Place South Independent Review
* Richard Hattersley
THE MAYOR DECLARED THE ORDINARY MEETING OF COUNCIL RESUMED AT 6.34PM
2 MAYORAL MINUTES
2.1 MINING AND ENERGY RELATED COUNCILS NSW AGM AND DECEMBER MEETING 2023
TRIM REFERENCE: 2024/141
RESOLVED - 24/035
Cr T Mileto/Cr J Whitton
That the information contained in this Mayoral Minute be acknowledged.
For: Cr J Hamling, Cr G Floyd, Cr T Greenhalgh, Cr F Kinghorne, Cr D Mallard, Cr M McDonell, Cr T Mileto, Cr S Peterson, Cr G Power, Cr J Whitton
Against: Nil
Absent: Cr J Evans, Cr K Duffy
3 CONFIRMATION OF MINUTES OF PREVIOUS MEETING
RESOLVED - 24/036
Cr G Floyd/Cr S Peterson
That the Minutes of the Ordinary Meeting of Orange City Council held on 6 February 2024 (copies of which were circulated to all members) be and are hereby confirmed as a true and accurate record of the proceedings of the Council meeting held on 6 February 2024.
For: Cr J Hamling, Cr G Floyd, Cr T Greenhalgh, Cr F Kinghorne, Cr D Mallard, Cr M McDonell, Cr T Mileto, Cr S Peterson, Cr G Power, Cr J Whitton
Against: Nil
Absent: Cr J Evans, Cr K Duffy
*Cr Duffy arrived at the meeting with the time being 6.36pm*
4 NOTICES OF MOTION/NOTICES OF RESCISSION
4.1 NOTICE OF MOTION - SUPPLY OF LIFE VAC DEVICES IN ALL NSW SCHOOLS
TRIM REFERENCE: 2024/170
MOTION
Cr T Greenhalgh/Cr G Power
That Orange City Council resolves to:
1 Advocate for the supply and introduction of Life Vac devices in all NSW Schools/ Childcare Centres by lobbying our Local and State members for funding for the Life Vac Devices.
2 Encourage all local sporting clubs to consider including them as a must have in addition to a defibrillator as part of their first aid toolkit.
3 Write to Prue Car, Deputy Premier, Minister for Education and Early Learning in support of this initiative.
AMENDMENT
Cr T Mileto/Cr S Peterson
That consideration of this item be deferred for the purpose of writing to the Australian Medical Association, College of Medical Physicians, NSW Health and Minister for Education and Early Learning to obtain expert information on the Life Vac device.
For: Cr T Mileto
Against: Cr J Hamling, Cr K Duffy, Cr G Floyd, Cr T Greenhalgh, Cr F Kinghorne, Cr D Mallard,
Cr M McDonell, Cr S Peterson, Cr G Power, Cr J Whitton
Absent: Cr J Evans
THE AMENDMENT ON BEING PUT WAS LOST
THE MOTION ON BEING PUT WAS CARRIED
RESOLVED - 24/037
Cr T Greenhalgh/Cr G Power
That Orange City Council resolves to:
1 Advocate for the supply and introduction of Life Vac devices in all NSW Schools/ Childcare Centres by lobbying our Local and State members for funding for the Life Vac Devices.
2 Encourage all local sporting clubs to consider including them as a must have in addition to a defibrillator as part of their first aid toolkit.
3 Write to Prue Car, Deputy Premier, Minister for Education and Early Learning in support of this initiative.
For: Cr J Hamling, Cr K Duffy, Cr G Floyd, Cr T Greenhalgh, Cr F Kinghorne, Cr D Mallard, Cr M McDonell, Cr T Mileto, Cr S Peterson, Cr G Power, Cr J Whitton
Against: Nil
Absent: Cr J Evans
4.2 NOTICE OF MOTION - LORDS PLACE SOUTH INDEPENDENT REVIEW
TRIM REFERENCE: 2024/169
RESOLVED - 24/038
Cr F Kinghorne/Cr G Floyd
That Orange City Council arrange, as soon as practicable, an independent review of the planning, approval, and construction of the Lords Pl Sth Future Cities development. This review should consider the following:
1 Whether all relevant accurate information was officially given to councillors prior to the approval.
2 Whether all required/usual planning protocols and procedures were undertaken in relation to this matter.
3 Whether there were any concerns raised by staff involved in the development, especially in relation to the apparent haste in implementing the project, and, if so, how were these concerns addressed?
4 Whether the immediate start on the project was consistent with regulations, especially in relation to the effective blocking of any potential rescission motion.
5 Whether there was effective consultation/ communication with the business owners during the development. Did the minutes of the meetings held, accurately reflect the content of those meetings and were these minutes adopted at subsequent meetings?
6 Whether the differences between the concept plans and the actual development were necessary, specifically in relation to the arrangement of the double tree pits as perpendicular to the footpath rather than angled to align better with the parking spaces.
7 What internal reviews have already been conducted to date, and what is the outcome of any such reviews?
For: Cr J Hamling, Cr K Duffy, Cr G Floyd, Cr T Greenhalgh, Cr F Kinghorne, Cr D Mallard, Cr M McDonell, Cr T Mileto, Cr S Peterson, Cr G Power, Cr J Whitton
Against: Nil
Absent: Cr J Evans
5 GENERAL REPORTS
5.1 LORDS PLACE FURNITURE
TRIM REFERENCE: 2024/128
RESOLVED - 24/039
Cr G Floyd/Cr K Duffy
That the report on the Lords Place furniture EOI be acknowledged and the EOI process be endorsed.
For: Cr J Hamling, Cr K Duffy, Cr G Floyd, Cr T Greenhalgh, Cr F Kinghorne, Cr D Mallard, Cr M McDonell, Cr T Mileto, Cr S Peterson, Cr G Power, Cr J Whitton
Against: Nil
Absent: Cr J Evans
Cr Duffy asked how the EOI will go out.
The Director Corporate & Commercial Services advised the EOI will be aimed at the local business community not the general public, in association with Council needs.
4
Cr Power asked if there was a closing date for the EOI.
The Director Corporate & Commercial Services advised that the EOI would be open for a four week period.
QUESTION TAKEN ON NOTICE
Cr M McDonell
Cr McDonell asked what for the dollar value of Lords Place furniture items part of the EOI.
Cr Whitton asked why the EOI would only be for certain groups and not allowing everyone to have a say.
The Director Corporate & Commercial Services advised that the furniture was taken from the CBD businesses so aimed at the business community. There were also public liability considerations needing to be taken into account if furniture was placed in a public space.
Cr Whitton asked if Development Applications would be needed to install furniture.
The Director Development Services stated that it would depend on the item. It may be possible to use section 68 of the Local Government Act for approvals, however if it related to outdoor dining for example this would be administered under the Roads Act.
Cr Whitton asked how a business could obtain public liability insurance if they do not own the footpath.
The Director Corporate & Commercial Services advised that is items where used within their business liability would be transferred and the business responsibility.
Cr Mileto asked how we could ensure transparency when the EOI's come back to Council for a decision to choose the successful applicants.
The Director Corporate & Commercial Services advised that an assessment criteria would be established with weighting and scoring across the criteria's provided to Council.
5.2 FUTURECITY
TRIM REFERENCE: 2024/3
MOTION
That Council Resolves to:
1 Note the report from the Chief Executive Officer.
2 Note the list of potential projects under the FutureCity program; Maintain Projects 1-8 in the 2023/24 budget; and
3 Adjust the 2023/24 budget accordingly in the next quarterly review to match the adopted project list under recommendat on 2.
i
AMENDMENT
Cr K Duffy/Cr T Mileto
That Council defer consideration of the FutureCity Program for the purpose of obtaining more information about the projects.
For: Cr J Hamling, Cr K Duffy, Cr G Floyd, Cr T Greenhalgh, Cr F Kinghorne, Cr D Mallard, Cr M McDonell, Cr T Mileto, Cr S Peterson, Cr G Power, Cr J Whitton
Against: Nil
Absent: Cr J Evans
Cr G Power/Cr M McDonell
THE AMENDMENT ON BEING PUT WAS CARRIED AND BECAME THE MOTION
THE MOTION ON BEING PUT WAS CARRIED
RESOLVED - 24/040
Cr K Duffy/Cr T Mileto
That Council defer consideration of the FutureCity Program for the purpose of obtaining more information about the projects.
For: Cr J Hamling, Cr K Duffy, Cr G Floyd, Cr T Greenhalgh, Cr F Kinghorne, Cr D Mallard, Cr M McDonell, Cr T Mileto, Cr S Peterson, Cr G Power, Cr J Whitton
Against: Nil
Absent: Cr J Evans
Cr Whitton asked what were the parameters for use of the Grant funding and whether it could be used for anything or if it was only for beautification.
The Acting Chief Executive Officer stated that it needed to be in line with FutureCity ideals and could be used if it fit within the criteria.
Cr Kinghorne noted the report stated a Future Council could not be committed however the projects went into the 2024/25 Financial Year.
The Acting Chief Executive Officer stated that the current Council would be in for July & August of that period.
Cr Peterson asked if delaying projects would increase prices, whether carparks would see additional capacity from laying chipseal or asphalt, what the concerns are with the current CCTV infrastructure and what are we trying to achieve with that upgrade.
The Acting Chief Executive Officer stated that delays would only impact on timing until October 2024, both options for chipseal and asphalt are provided for Council to consider given there is a substantial difference in cost and no additional capacity is achieved, it is to improve the quality of the existing carparks.
The Director Community, Recreation & Cultural Servies stated that there are thirty CCTV cameras which function satisfactorily, we have a close working relationship with the police and upgrades would bring CCTV up to current standards.
Cr McDonell asked if the festoon lighting had already been purchased and the cost was only for install.
The Acting Chief Executive Officer stated that they had not yet been purchased and most of the cost is for individual poles.
QUESTION TAKEN ON NOTICE
Cr M McDonell
Cr McDonell asked if the proposed FutureCity Festoon Lighting was of better quality than the current lighting.
Cr Duffy noted a recent incident at Esso Park stating Council should not only be considering lighting at Robertson Park.
Cr Mileto asked what sampling of mulch is occurring to ensure it is safe for the site it is being used and how often that mulch is being tested to ensure it complies with regulations. The Acting Chief Executive Officer stated that every pile is tested, not specifically for asbestos, however we do not believe there is any building waste in our mulch. We are now testing the end product for asbestos and will keep Council informed.
5.3 RECOMMENDATIONS AND RESOLUTIONS FROM POLICY COMMITTEES
TRIM REFERENCE: 2023/2287
RESOLVED - 24/041
Cr K Duffy/Cr D Mallard
That Council resolves:
1 That the Minutes of the Planning & Development Policy Committee at its meeting held on 6 February 2024 be and are hereby confirmed as a true and accurate record of the proceedings.
2 That the Minutes of the Infrastructure Policy Committee at its meeting held on 6 February 2024 be and are hereby confirmed as a true and accurate record of the proceedings.
3 That the Minutes of the Environmental Sustainability Policy Committee at its meeting held on 6 February 2024 be and are hereby confirmed as a true and accurate record of the proceedings.
4 That the Minutes of the Finance Policy Committee at its meeting held on 6 February 2024 be and are hereby confirmed as a true and accurate record of the proceedings.
5 That the Minutes of the Services Policy Committee at its meeting held on 6 February 2024 be and are hereby confirmed as a true and accurate record of the proceedings.
For: Cr J Hamling, Cr K Duffy, Cr G Floyd, Cr T Greenhalgh, Cr F Kinghorne, Cr D Mallard, Cr M McDonell, Cr T Mileto, Cr S Peterson, Cr G Power, Cr J Whitton
Against: Nil
Absent: Cr J Evans
QUESTION TAKEN ON NOTICE
Cr K Duffy
Cr Duffy asked for a Report to be provided to Council on complaint Statistics around Companion Animals.
5.4 QUARTERLY BUDGET REVIEW - QUARTER 2 OF 2023/2024
TRIM REFERENCE: 2024/80
RESOLVED - 24/042
Cr G Floyd/Cr S Peterson
That Council resolves:
1 That the information provided in the report on the quarterly budget and performance indicators review for October 2023 to December 2023 be acknowledged.
2 To adopt variations in the consolidated overall cost to council arising from the December 2023 quarterly review amounting to $5,000.
For: Cr J Hamling, Cr K Duffy, Cr G Floyd, Cr T Greenhalgh, Cr F Kinghorne, Cr D Mallard, Cr M McDonell, Cr T Mileto, Cr S Peterson, Cr G Power, Cr J Whitton
Against: Nil
Absent: Cr J Evans
Cr Peterson noted the reduction in cost for stormwater drainage and asked if this was a delay in Blackmans Swamp Stormwater Harvesting.
The Acting Chief Executive Officer stated that the changes were around projects not progressing this financial year, the stormwater harvesting would be one of those.
5.5 STATEMENT OF INVESTMENTS - DECEMBER 2023/JANUARY 2024
TRIM REFERENCE: 2024/87
RESOLVED - 24/043
Cr K Duffy/Cr J Whitton
That Council resolves:
1 To note the Statement of Investments for the periods December 2023 and January 2024.
2 To adopt the certification of the Responsible Accounting Officer.
For: Cr J Hamling, Cr K Duffy, Cr G Floyd, Cr T Greenhalgh, Cr F Kinghorne, Cr D Mallard, Cr M McDonell, Cr T Mileto, Cr S Peterson, Cr G Power, Cr J Whitton
Against: Nil
Absent: Cr J Evans
QUESTION TAKEN ON NOTICE
Cr F Kinghorne
Cr Kinghorne noted that the Aus Bond Bank Bill Index had been sitting at 0.94% for some months and has now been changed to 4.5% from back in June 2023, and asked for clarification as to why this has occurred.
The Acting Chief Executive Officer advised Councillors via email following the meeting that an internal review noted that the Aus Bond Bank Bill Index reporting commenced in 2023. An incorrect dataset had been referenced and this was corrected for the February 2024 Statement of Investment report.
5.6 FEES AND CHARGES AMENDMENTS - ORANGE CITY COUNCIL CHOICES AT HOME HOME MAINTENANCE SERVICE FEE (LAWN MOWING) - POST EXHIBITION
TRIM REFERENCE: 2023/2252
RESOLVED - 24/044
Cr D Mallard/Cr K Duffy
That Council adopt the amended fees and charges for the client contribution fee of $40.00 per hour ($20.00 per half hour), for lawn mowing service provision to seniors under the Commonwealth Home Support Programme, effective from 26 February 2024.
For: Cr J Hamling, Cr K Duffy, Cr G Floyd, Cr T Greenhalgh, Cr F Kinghorne, Cr D Mallard, Cr M McDonell, Cr T Mileto, Cr S Peterson, Cr G Power, Cr J Whitton
Against: Nil
Absent: Cr J Evans
5.7 FEES AND CHARGES AMENDMENTS - ORANGE REGIONAL MUSEUM TOURING EXHIBITIONS - POST EXHIBITION
TRIM REFERENCE: 2023/2253
| Activity | Existing fee EX GST | Proposed fee Ex GST |
|---|---|---|
| Touring Exhibition Cost | Not included in Fees & Charges | $0 to $10,000 |
For: Cr J Hamling, Cr K Duffy, Cr G Floyd, Cr T Greenhalgh, Cr D Mallard, Cr M McDonell, Cr T Mileto, Cr S Peterson, Cr G Power, Cr J Whitton
Against: Cr F Kinghorne
Absent: Cr J Evans
Cr Kinghorne asked why there was a wide range of the proposed fee and how this is calculated.
The Director Community, Recreation & Cultural Services advised that depends on the exhibition and it is difficult to identify. One element of an exhibition may cost $1,000, the next $2,000 and another $100 to tour the exhibition. The Fees and Costings are set out between the parties and made on a cost recovery basis.
5.8 SPORTNSW INDUSTRY CONFERENCE - PANEL DISCUSSION SESSION
TRIM REFERENCE: 2024/100
RESOLVED - 24/046
Cr K Duffy/Cr J Whitton
That Council resolves to send the Mayor and Cr Greenhalgh to the Sport NSW Industry Conference to participate on a Panel at Sydney Olympic Park on 23 February 2024.
For: Cr J Hamling, Cr K Duffy, Cr G Floyd, Cr T Greenhalgh, Cr F Kinghorne, Cr D Mallard, Cr M McDonell, Cr T Mileto, Cr S Peterson, Cr G Power, Cr J Whitton
Against: Nil
Absent: Cr J Evans
6 CLOSED MEETING
In accordance with the Local Government Act 1993, and the Local Government (General) Regulation 2021, in the opinion of the Chief Executive Officer, the following business is of a kind as referred to in Section 10A(2) of the Act, and should be dealt with in a Confidential Session of the Council meeting closed to the press and public.
In response to a question from the Mayor, the Acting Chief Executive Officer advised that no written submissions had been received relating to any item listed for consideration by the Closed Meeting of Council.
The Mayor extended an invitation to any member of the public present at the meeting to make a presentation to the Council as to whether the meeting should be closed for a particular item.
RESOLVED - 24/047
Cr G Power/Cr G Floyd
That Council adjourn into a Closed Meeting and members of the press and public be excluded from the Closed Meeting, and access to the correspondence and reports relating to the items considered during the course of the Closed Meeting be withheld unless declassified by separate resolution. This action is taken in accordance with Section 10A(2) of the Local Government Act, 1993 as the items listed come within the following provisions:
6.1 Tender - Lake Canobolas Accessible Boardwalk
This item is classified CONFIDENTIAL under the provisions of Section 10A(2) of the Local Government Act 1993, which permits the meeting to be closed to the public for business relating to (c) information that would, if disclosed, confer a commercial advantage on a person with whom the Council is conducting (or proposes to conduct) business.
6.2 Minutes of the Audit Risk and Improvement Committee Meeting 6 December 2023
This item is classified CONFIDENTIAL under the provisions of Section 10A(2) of the Local Government Act 1993, which permits the meeting to be closed to the public for business relating to (f) matters affecting the security of the Council, Councillors, Council staff or Council property.
For: Cr J Hamling, Cr K Duffy, Cr G Floyd, Cr T Greenhalgh, Cr F Kinghorne, Cr D Mallard, Cr M McDonell, Cr T Mileto, Cr S Peterson, Cr G Power, Cr J Whitton
Against: Nil
Absent: Cr J Evans
The Mayor declared the Ordinary Meeting of Council adjourned for the conduct of the Closed Meeting at 7.47pm.
The Mayor declared the Ordinary Meeting of Council resumed at 7.54pm.
7 RESOLUTIONS FROM CLOSED MEETING
The Acting Chief Executive Officer read out the following resolutions made in the Closed Meeting of Council.
6.1 TENDER - LAKE CANOBOLAS ACCESSIBLE BOARDWALK
TRIM REFERENCE: 2024/88
RESOLVED - 24/048
Cr G Power/Cr T Greenhalgh
1 That the Tender F665-4 for Installation of Lake Canobolas Boardwalk be awarded to MDE Projects for their tendered price of $350,208.00 (Ex GST).
2 That permission be granted for the use of the Council Seal on any relevant document as required.
For: Cr J Hamling, Cr K Duffy, Cr G Floyd, Cr T Greenhalgh, Cr F Kinghorne, Cr D Mallard, Cr M McDonell, Cr T Mileto, Cr S Peterson, Cr G Power, Cr J Whitton
Against: Nil
Absent: Cr J Evans
6.2 MINUTES OF THE AUDIT RISK AND IMPROVEMENT COMMITTEE MEETING 6 DECEMBER 2023
TRIM REFERENCE: 2024/67
RESOLVED - 24/049
Cr G Floyd/Cr F Kinghorne
That Council resolves:
1 That Council acknowledge the reports presented to the Audit, Risk & Improvement Committee at its meeting held 6 December 2023.
2 That Council determine recommendation 4.2(4) & 4.17 from the minutes of the Audit, Risk & Improvement Committee of 6 December 2023:
4.2(4) That Council confirm the ARIC Membership from 1 July 2024 under the new OLG guidelines.
4.17 That Council acknowledges the ARIC Annual Report for the year ending 31 December 2023.
3 That the remainder of the minutes of the Audit, Risk & Improvement Committee at its meeting held on 6 December 2023 be adopted.
For: Cr J Hamling, Cr K Duffy, Cr G Floyd, Cr T Greenhalgh, Cr F Kinghorne, Cr D Mallard, Cr M McDonell, Cr T Mileto, Cr S Peterson, Cr G Power, Cr J Whitton
Against: Nil
Absent: Cr J Evans
MATTER ARISING
Cr McDonell noted that at item 5.4 – Quarterly Budget Review – she called a point of order as the discussion from Cr Duffy was not on the agenda for that item, noting that Councillors could only raise business part of the agenda.
THE MEETING CLOSED AT 8.00PM
This is Page Number 11 and the Final Page of the Minutes of the Ordinary Meeting of Orange City Council held on 20 February 2024.
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technical
matters
Column by
Cedric Verdier
The most important action will be to bring the victim to the sur face safely and as quickly as reasonable.
Images courtesy of Jan Jørgensen jj-technique.com
Rescue How to a rebreather diver By Cedric Verdier Photos courtesy of Jan Jørgensen
How to deal with an unconscious rebreather diver?
The purpose of this article is to provide some guidelines on how to safely and efficiently deal with an unconscious diver. These guidelines are meant to be:
rebreather diver is found underwater.
In any rescue-scenario, not just div ing, it is paramount to first consider the two following important factors before taking any action:
Simple and easy to remember.
In a real life emergencies rescue techniques are always more complex to perform and more difficult to remember, even if the rescuer practises it on a regular basis.
the unconsciousness is not really crucial, and the rescuer shouldn't waste precious time trying to deter mine whether the root problem is hypercapnia, hypoxia or hyperoxia.
more than a minute.
1. The safety of the rescuer.
The victim is already in trouble. Make sure that the rescuer doesn't get into trouble, too, and turn one accident into two.
The title of this article was originally: "What to do if a convulsion hap pens". Based on a lot of discussion, private or on various forums, the protocol being presented here can actually be used for any kind of situation where an unconscious
Flexible enough to be used in most of the circumstances: Dry suit or wet suit, overhead envi ronment or open water, deep Trimix or shallow Nitrox dive—and with all the rebreathers available (back-mounted/OTS CLs, SCR/ CCR, FFM, etc).
2. What is the most life-threatening problem for the victim. In most of the cases regarding diving, drown ing should be considered the major threat. People can recover from DCS or even from AGE, but not from complete drowning. Hypoxia is also a very important issue.
Hyperoxia is a special case, which requires observation as a convulsion could appear. Susceptibility to a high level of oxygen varies both between indi viduals and within the same person from day to day. A grand mal con vulsion generally occurs in three phases:
The most important action will be to bring the victim to the surface safe ly and as quickly as reasonable. Establishing what initially caused
1. The 'Tonic' phase – a period characterised by body rigidity. In this phase, it is dangerous to attempt to surface the casualty because spasms of the glottis and respiratory muscles will cause inad equate exhalation that in turn may result in pulmonary barotrauma. Fortunately, this phase doesn't last
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2. The 'Clonic' phase during which the casualty undergoes true con vulsions. This can last for widely varying periods of time. Based on some studies and discussions with medical experts (see reference), it looks like the airway is not blocked at this stage.
3. The 'Post-Ictal' phase during which the victim rests and actually resumes breathing. Depending on the circumstances, the victim can "wake-up" and be confused, disoriented or even combative for quite a long time, or simply stay unconscious. Other convulsions may follow the first one, sooner or later.
So, what to do?
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Step 1: Stabilize the victim in the water column.
Rescue rebreather
If the diver is found unconscious close to the bottom, find a stable position on the bottom or a shot line. If the diver is found uncon scious in mid-water or during deco, try to maintain the depth by catching the ascent line.
If the rescuer can attract atten tion and get some help, a second diver can be very handy to assist the rescuer in doing the following:
* In open water, to send up an emergency SMB to alert the surface support team
* At the surface, to help remov ing the victim's gear and to provide first aid
* In a cave, to aid going through restrictions or simply to take care of the navigation
* In general, to control buoyancy on the bottom and during the ascent
Step 2: Assess the situation
The rescuer has to assess the vic tim, the equipment and the envi ronment in order to determine the best course of action, and if the ascent has to be immediate or slightly delayed. In any case, this assessment should be quick and shouldn't delay the rescue, but make it more efficient. The res cuer has to deal with a high level of stress as time is crucial.
Is the mouthpiece still in the mouth? If not, do not attempt to replace it but ensure that the mouthpiece is switched to the surface position. Try to seal the mouth and ascend immediately.
Assessing the victim
Is it an oxygen toxicity seizure? In case of a convulsion underwa ter, the dangerous part being the Tonic phase that doesn't last very long, the diver's depth has only to be kept constant at the very beginning (a few seconds up to one minute). If drowning is the major concern (as it should be if the rebreather diver does not wear a FFM or a neckstrap that efficiently protects their airway), the main priority is to bring the victim as soon as safely possible.
Is the victim breathing? If there is no obvious sign of breathing (no bubble, no chest movement, no movement of the counterlungs), it is of the utmost importance to bring the victim to surface to administer artificial respiration/ CPR.
Assessing the equipment
during the ascent. Is the loop content safe to breathe? This is only a concern if the diver breathes, and the air way is protected. The rescuer can check the pO2 readings to make
sure that the victim will be able to breathe a safe mix dur ing the ascent.
Hypoxia: It is crucial to check the loop content, as the pO2 will drop when ascend ing to the shal lows.
Hyperoxia:
Is the mouthpiece still in the mouth?
Note: Opening the mouth to put in a regulator might only achieve water introduction/drowning.
sion standpoint).
In case of Mixed-gas diving, the Open Circuit mix has to be breathable all the way up to the surface, and the amount of gas in the tank has to be sufficient (and the valve open).
Hypercapnia: Without a proper scrubber monitor, it will be dif ficult for the rescuer to assess the CO2 level in the loop, and it's not a major issue anyway. A diluent flush will help in any case, as it could also help in case of a par tial loop flood.
Note: To efficiently flush the loop on most of the units, the rescuer has to open the over-pressure valve first.
Flushing the loop with dilu ent or switch ing to an integrated OC second stage (BOV) could be an option to consider.
If the victim doesn't breathe or doesn't have a properly pro tected airway, the ascent to the surface should be immediate.
Some rescuers feel con fident in attempting to seal a second stage with a breathable mix against the lips in the hope that if breathing resumes air will be inspired instead of water. None of these actions should delay the ascent or compromise the efficiency of the rescue.
(Remember that breathing a high O2 content in the loop could also be beneficial on a decompres
Is there any water in the mask?
Does the diver wear a full face mask or a neckstrap that effi ciently protects the airway? If it is not the case, even if the diver still has the mouthpiece in place, drowning is a major concern and any delay in the ascent should be avoided.
A partially or completely flooded mask could be a major problem for the victim's airway. If it is the case, try to pinch the nose
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Is there any physical problem that could delay the ascent?
Assessing the environment
A strong current could make the rescuer consider swimming to an ascent line rather than drifting far from the boat. An overhead envi ronment (cave, ice, wreck pen etration) could delay the ascent as the rescuer will have to swim to the exit point.
Is there any physiological concern that could delay the ascent? If a breathing victim with a prop erly protected airway (Full face mask, neck strap) has a significant decompression obligation, the rescuer has to consider the pos sibility of performing the required stops to minimize the risks of DCS.
In this case, three main options are available:
If the victim does not breathe or does not have a properly pro tected airway, the ascent to the surface should be immediate. Nevertheless, the rescuer could have a significant decompression obligation as well.
1. Ascending with the victim at the surface, provide first aid or hand over the victim to the sur face support, then eventually follow a missed deco proce dure
2. Handing the victim over to another diver with no/less decompression obligation
3. Sending the victim to the sur face on their own, hoping that the surface support will be effi cient and fast enough
Note: This is a personal decision, based on a lot of factors that have to be quickly considered by a highly stressed rescuer:
* The apparent state of the vic
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rebreather
Rescue tim (not breathing for a very long time, etc.)
* The amount of decompression obliga tion and the perceived risk of DCS
* The accepted risk (that could depend on the relationship with the victim)
* The efficiency and the availability of the surface support
* The surface condition (rough sea where the victim will not be seen, etc)
Step 3: Ascending to the surface
Opening the airway
Ensure that the victim's airway is open by keeping the neck slightly extended.
Controlling the ascent
It is often very difficult to keep control of the buoyancy of two divers at the same time, particularly in the shallows:
* Slowly inflate the victim's BC to start ascending.
* Open the victim's loop OPV (and the dry suit purge if appropriate).
* Control the victim's BCD purge.
* Control the rescuer's own buoyancy.
Note: In case of a malfunctioning unit (leaking solenoid, ADV, manual injector, BCD inflator, etc), it may be difficult for the rescuer to quickly find out if there is a leak, where it comes from and how to stop it. The rescuer has to be aware that the rescue could end up in an uncon trolled ascent.
Establishing positive buoyancy at the surface
If the loop is not flooded, simply fully inflate the victim's BC should provide enough buoyancy to maintain the diver at the surface. Make sure that the DSV is closed when removed from the mouth. Depending on the equipment or if the loop is flooded, it may be necessary to release some weight or accessories (can ister light, sling tank, etc).
It is a challenge to control the ascent rate of two divers
Step 4: Providing first aid
This means first care for the victim and the rescuer:
* Call for help. If no help is available, it may be necessary for the rescuer to stop for a few seconds to keep the stress level reasonable and assess the victim and the resources available at the surface.
* Ensure the victim is breathing or initiate artificial ventilation (as taught in all the basic Rescue Diver courses).
* Hand over the victim to the surface
support or swim to the nearest platform available (boat, shore, etc) in order to provide better care (CPR/first aid/O2).
* Arrange for evacuation (nearest chamber/ diving physician).
References:
* The prevention and management of diving accidents (revised October 1997). Royal Navy INM Report No. R97066
* U.S. Navy diving manual (Chapter 17 and 17b), USN
* Commercial diving operations, OSHA Occupational Safety and Health Administration
* Extreme survival: A deep technical div ing accident. Trytko B, Mitchell S. South Pacific Underwater Medicine Society Journal
* Proceedings of rebreather forum 2.0, Michael Menduno. DSAT
* Oxygen toxicity protocol, Scott Hunsucker, WKPP
* Oxygen and the diver. Donald KM., England
* A statistical analysis of recent NEDU single-depth human exposures to 100-percent oxygen at pressure. Harabin AL, Survanshi SS. Bethesda, M.D. Naval Medical Research Institute
* Glottal patency during experimental cortical seizures in piglets. Leaming. Academic Emergency Medicine
* The rescuer may perform missed deco procedures if appropriate (without delay ing evacuation). ■
* Current thoughts on mechanisms of hyperoxic seizures. Johnny E. Brian Jr. University of Iowa Hospitals and Clinics
This document is only a guideline to help developing a widely accept ed standard for rebreather rescue. Such a standard doesn't exist in the sport diving industry and may never exist.
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MY PRAYER FOR YOU…
我为你们祷告…
WALK WORTHY OF CHRIST 行事为人对得起基督
Colossians 歌罗西书 1:9-14
Colossians 歌罗西书 1:9-14 part 2 第二部分
Walk Worthy of the Lord =
行事为人对得起主=
[x] fruitful in every good work, *
善事上结果子,
渐渐多知道神;
[x] increasing in the knowledge of God; *
[x] strengthened to persevere with joy,.. *
力上加力欢欢喜喜的忍耐宽容
[x] giving thanks in Christ *
在基督里感恩
Colossians 歌罗西书 1:9-14 part 1 第一部分
Because we heard about your spiritual progress in Christ, we pray unceasingly for you:
[x] that you might be filled with the knowledge of His will in all wisdom and understanding (from the Spirit);
so that ye might walk worthy of the Lord
因为听见你们灵性在基督里的长进, 我们就为你们不住的祷告:
愿你们在一切属灵的智慧悟性上, 满心知道神的旨意;
好叫你们行事为人对得起主
Walk Worthy of Christ 行事为人对得起基督
"Walk Worthy"
[x] formula appearing on inscriptions in the province of Asia – including pagan inscriptions.
[x] also found in Eph 4:1; 1 Thess. 2:12; 3 John 6; Matt. 10:37
"行事为人对得起主"
公式出现在亚洲省的碑文上- 包括异教徒的碑文上
也出现在弗4:1; 帖前2:12; 约叁6; 马太10:37
Walk Worthy of Christ 行事为人对得起基督
"行事为人"
"Walk"
= Everyday living 每天的生活
Walk Worthy of Christ
行事为人对得起基督
"Walk Worthy"
Everyday-life conduct that matches up to / balances with
"行事为人对得起主"
每天的生命行为有达到/ 与平衡
My Prayer for you… Walk Worthy of Christ 我为你们祷告……行事为人对得起基督
Live in a way that matches up with the worth of Christ.
过着能达到对得起基督的生活
Walk Worthy of Christ 行事为人对得起基督
[x] Emphasis of "worthiness" is the worth of Christ Matthew 10:37
He that loveth father or mother more than me is not worthy of me: and he that loveth son or daughter more than me is not worthy of me.
[x]强调" 配得" 是对得起基督
马太福音10:37
爱父母过于爱我的，不配作我的门徒，爱儿女过于爱我的，不 配作我的门徒。
Colossians 歌罗西书 1:9-14 part 1 第一部分
Because we heard about your spiritual progress in Christ, we pray unceasingly for you:
[x] that you might be filled with the knowledge of His will in all wisdom and understanding (from the Spirit);
so that ye might walk worthy of the Lord unto all pleasing
因为听见你们灵性在基督里的长进, 我们就为你们不住的祷告:
愿你们在一切属灵的智慧悟性上, 满心知道神的旨意;
好叫 你们行事为人对得起主
Colossians 歌罗西书 1:9
"…that ye might be filled with the knowledge of His will in all wisdom and understanding (from the Spirit)…"
"...愿你们在一切属灵的智慧悟性上, 满心知道神的 旨意..."
My Prayer for you… Walk Worthy of Christ 我为你们祷告……行事为人对得起基督
Pray that the Holy Spirit may fill us through His Word to know His moral will in all wisdom and understanding;
so that we might walk worthy of the Lord
祷告愿圣灵藉着祂的道充满我们使在一切属灵的智慧悟性上满
心知道祂道德上的旨意;
好叫我们行事为人对得起主
Colossians 歌罗西书 1:9-14 part 2 第二部分
Walk Worthy of the Lord =
行事为人对得起主=
[x] fruitful in every good work, *
善事上结果子,
渐渐多知道神;
[x] increasing in the knowledge of God; *
[x] strengthened to persevere with joy,.. *
力上加力欢欢喜喜的忍耐宽容
[x] giving thanks in Christ *
在基督里感恩
Colossians 歌罗西书 1:9
"…that ye might be filled with the knowledge of His will in all wisdom and understanding (from the Spirit)…"
"...愿你们在一切属灵的智慧悟性上, 满心知道神的 旨意..."
Colossians 歌罗西书 1:9-14 part 2 第二部分
Walk Worthy of the Lord =
行事为人对得起主=
[x] fruitful in every good work, *
善事上结果子,
渐渐多知道神;
[x] increasing in the knowledge of God; *
[x] strengthened to persevere with joy,.. *
力上加力欢欢喜喜的忍耐宽容
[x] giving thanks in Christ *
在基督里感恩
My Prayer for you… Walk Worthy of Christ 我为你们祷告……行事为人对得起基督
A LIFE OF ONGOING SPIRITUAL GROWTH!
一个在属灵上成长的生命!
Walk Worthy of Christ 行事为人对得起基督
[x] Growing– in good works,& in the knowledge of God
在善事上成长&
在认识神上
Walk Worthy of Christ 行事为人对得起基督
[x] Growing– in good works, & in the knowledge of God
[x] 在善事上成长&
在认识神上
Colossians 歌罗西书 1:11
Strengthened with all might (dunamis), 力上加力 according to his glorious power (kratos), 照祂荣耀的权能 unto all patience and longsuffering with joyfulness; 凡事
欢欢喜喜的忍耐宽容;
Walk Worthy of Christ 行事为人对得起基督
[x] Growing– in good works, & in the knowledge of God
在善事上成长&
在认识神上
Colossians 歌罗西书 1:11
Strengthened with all might (strength - dunamis), 力上加力 according to his glorious power (kratos), 照祂荣耀的权能 unto all patience and longsuffering with joyfulness;
凡事欢欢喜喜的忍耐宽容;
Walk Worthy of Christ 行事为人对得起基督
[x] Strengthened- to persevere with joy
[x] 力上加力欢欢喜喜的忍耐
My Prayer for you… Walk Worthy of Christ
我为你们祷告……行事为人对得起基督
[x] Colossians 1:12-14
Giving thanks unto the Father, which hath made us meet to be partakers of the inheritance of the saints in light:
Who hath delivered us from the power of darkness, and hath translated us into the kingdom of his dear Son:
In whom we have redemption through his blood, even the forgiveness of sin.
My Prayer for you… Walk Worthy of Christ 我为你们祷告……行事为人对得起基督
[x] Colossians 1:12-14
Giving thanks unto the Father, which hath made us meet to be partakers of the inheritance of the saints in light:
Who hath delivered us from the power of darkness, and hath translated us into the kingdom of his dear Son:
In whom we have redemption through his blood, even the forgiveness of sin.
Walk Worthy of Christ 行事为人对得起基督
[x] Thankful - Giving thanks in Christ…
[x] 感恩的心-在基督里感恩
My Prayer for you… Walk Worthy of Christ 我为你们祷告……行事为人对得起基督
[x] 歌罗西书1:12-14
又感谢父，叫我们能与众圣徒在光明中同得基业。
他救了我们脱离黑暗的权势，把我们迁到祂爱子的国里。
我们在爱子里得蒙救赎，罪过得以赦免。
My Prayer for you… Walk Worthy of Christ 我为你们祷告……行事为人对得起基督
[x] 歌罗西书1:12-14
又感谢父，叫我们能与众圣徒在光明中同得基业。
他救了我们脱离黑暗的权势，把我们迁到祂爱子的国里。
我们在爱子里得蒙救赎，罪过得以赦免。
My Prayer for you… Walk Worthy of Christ
我为你们祷告……行事为人对得起基督
[x] Colossians 1:12-14
Giving thanks unto the Father, which hath made us meet to be partakers of the inheritance of the saints in light:
Who hath delivered us from the power of darkness, and hath translated us into the kingdom of his dear Son:
In whom we have redemption through his blood, even the forgiveness of sin.
Walk Worthy of Christ 行事为人对得起基督
[x] Thankful- Giving thanks in Christ…
[x] 感恩的心-在基督里感恩
Walk Worthy of Christ 行事为人对得起基督
[x] Growing – in good works, & in the knowledge of God
在善事上成长 & 在认识神上
[x] Strengthened- to persevere with joy
力上加力欢欢喜喜的忍耐
[x] Thankful - Giving thanks in Christ…
感恩的心-在基督里感恩
My Prayer for you… Walk Worthy of Christ 我为你们祷告……行事为人对得起基督
[x] 歌罗西书1:12-14
又感谢父，叫我们能与众圣徒在光明中同得基业。
他救了我们脱离黑暗的权势，把我们迁到祂爱子的国里。
我们在爱子里得蒙救赎，罪过得以赦免。
My Prayer for you… Walk Worthy of Christ
我为你们祷告……行事为人对得起基督
Pray that the Holy Spirit may fill us through His Word to know His moral will in all wisdom and understanding;
so that we might walk worthy of the Lord
祷告愿圣灵藉着祂的道充满我们使在一切属灵的智慧悟性上满 心知道祂道德上的旨意;
好叫我们行事为人对得起主
MY PRAYER FOR YOU… 我为你们祷告…
WALK WORTHY OF
CHRIST
行事为人对得起基督
Colossians 歌罗西书 1:9-14
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ID. No. 53/17
Jameel Akhtar Vs. M/s Sahara India Mass Communication
29.07.2020
Present: None.
Matter has been taken up through video conferencing hosted by Ms. Samita Bhatt, Reader of this Court in terms of orders of Hon'ble High Court of Delhi bearing Nos. R-235/RG/DHC/2020 dated 16.05.2020, 16/DHC/2020 dated 13.06.2020, 22/DHC/2020 dated 29.06.2020 and 24/DHC/2020 dated 13.07.2020.
Matter is fixed for workmen evidence.
In view of the above mentioned orders of Hon'ble High Court, it is felt appropriate that matter fixed for WE, be taken up for hearing on 01.09.2020, the date already fixed vide order of the Ld. District and Sessions Judge, Rouse Avenue District Courts, New Delhi, in this regard.
A copy of this order be sent to the Computer Branch for uploading on the official website. A signed copy of the order sheet may be filed after resuming of the courts normal functioning.
ID No. 84/17
Shiv Kumar Tiwari Vs.M/s Sahara India TV Network
29.07.2020
Present: None.
Matter has been taken up through video conferencing hosted by Ms. Samita Bhatt, Reader of this Court in terms of orders of Hon'ble High Court of Delhi bearing Nos. R-235/RG/DHC/2020 dated 16.05.2020, 16/DHC/2020 dated 13.06.2020, 22/DHC/2020 dated 29.06.2020 and 24/DHC/2020 dated 13.07.2020.
Matter is fixed for Misc/appearance.
Let notices be issued (through email or WhatsApp only) to Ld. AR(s) for the parties with following directions:
i. To give their consent that they are agreeable for taking up the matter through video conferencing; and
ii. In the eventuality that Ld. AR(s) for the parties, are not inclined for video conference hearing of the matter, the case shall stand adjourned with the other en bloc cases to be taken up for physical court hearing as and when the Courts resume the normal functioning.
In the meantime, Ahlmad is directed to get the case file scanned.
List the matter awaiting the consent and scanning of the file on 01.09.2020, the date already fixed vide order of the Ld. District and Sessions Judge, Rouse Avenue District Courts, New Delhi, in this regard.
A copy of this order be sent alongwith the notices to the Ld. AR(s) for the parties. A copy of this order be also sent to the Computer Branch for uploading on the official website. A signed copy of the order sheet may be filed after resuming of the courts normal functioning.
ID No. 56/17
Suresh Kumar Rai Vs. M/s Sahara India Mass Communication
29.07.2020
Present: None.
Matter has been taken up through video conferencing hosted by Ms. Samita Bhatt, Reader of this Court in terms of orders of Hon'ble High Court of Delhi bearing Nos. R-235/RG/DHC/2020 dated 16.05.2020, 16/DHC/2020 dated 13.06.2020, 22/DHC/2020 dated 29.06.2020 and 24/DHC/2020 dated 13.07.2020.
Matter is fixed for Misc/appearance.
Let notices be issued (through email or WhatsApp only) to Ld. AR(s) for the parties with following directions:
i. To give their consent that they are agreeable for taking up the matter through video conferencing; and
ii. In the eventuality that Ld. AR(s) for the parties, are not inclined for video conference hearing of the matter, the case shall stand adjourned with the other en bloc cases to be taken up for physical court hearing as and when the Courts resume the normal functioning.
In the meantime, Ahlmad is directed to get the case file scanned.
List the matter awaiting the consent and scanning of the file on 01.09.2020, the date already fixed vide order of the Ld. District and Sessions Judge, Rouse Avenue District Courts, New Delhi, in this regard.
A copy of this order be sent alongwith the notices to the Ld. AR(s) for the parties. A copy of this order be also sent to the Computer Branch for uploading on the official website. A signed copy of the order sheet may be filed after resuming of the courts normal functioning.
ID No. 82/17
Digpal Singh Bisht Vs. M/s Sahara India TV Network
29.07.2020
Present: None.
Matter has been taken up through video conferencing hosted by Ms. Samita Bhatt, Reader of this Court in terms of orders of Hon'ble High Court of Delhi bearing Nos. R-235/RG/DHC/2020 dated 16.05.2020, 16/DHC/2020 dated 13.06.2020, 22/DHC/2020 dated 29.06.2020 and 24/DHC/2020 dated 13.07.2020.
Matter is fixed for Misc/appearance.
Let notices be issued (through email or WhatsApp only) to Ld. AR(s) for the parties with following directions:
i. To give their consent that they are agreeable for taking up the matter through video conferencing; and
ii. In the eventuality that Ld. AR(s) for the parties, are not inclined for video conference hearing of the matter, the case shall stand adjourned with the other en bloc cases to be taken up for physical court hearing as and when the Courts resume the normal functioning.
In the meantime, Ahlmad is directed to get the case file scanned.
List the matter awaiting the consent and scanning of the file on 01.09.2020, the date already fixed vide order of the Ld. District and Sessions Judge, Rouse Avenue District Courts, New Delhi, in this regard.
A copy of this order be sent alongwith the notices to the Ld. AR(s) for the parties. A copy of this order be also sent to the Computer Branch for uploading on the official website. A signed copy of the order sheet may be filed after resuming of the courts normal functioning.
ID No. 28/16
Surya Narain Jha & 59 Ors. Vs. Steel Authority of India
29.07.2020
Present: None.
Matter has been taken up through video conferencing hosted by Ms. Samita Bhatt, Reader of this Court in terms of orders of Hon'ble High Court of Delhi bearing Nos. R-235/RG/DHC/2020 dated 16.05.2020, 16/DHC/2020 dated 13.06.2020, 22/DHC/2020 dated 29.06.2020 and 24/DHC/2020 dated 13.07.2020.
Matter is proceeding at the stage of hearing of any further arguments/order.
Let notices be issued (through email or WhatsApp only) to Ld. AR(s) for the parties with following directions:
i. To send their written submissions in synopsis form, as brief as possible;
ii. To give their consent that they are agreeable for final disposal of the case through their written submissions;
iii. Whether they want to address oral arguments through video conferencing as well in addition; and
iv. In the eventuality that Ld. AR(s) for the parties or any one of them are not inclined for video conference arguments and they are not willing for disposal of the case even on written submissions, the case shall stand adjourned with the other en bloc cases to be taken up for physical court hearing as and when the Courts resume their normal functioning.
In the meantime, Ahlmad is directed to get the case file scanned.
List the matter awaiting the consent and scanning of the file on 01.09.2020, the date already fixed vide order of the Ld. District and Sessions Judge, Rouse Avenue District Courts, New Delhi, in this regard.
A copy of this order be sent alongwith the notices to the Ld. AR(s) for the parties. A copy of this order be also sent to the Computer Branch for uploading on the official website. A signed copy of the order sheet may be filed after resuming of the courts normal functioning.
ID No. 865/16
Raj Singh Verma Vs. DTC
29.07.2020
Present: None.
Matter has been taken up through video conferencing hosted by Ms. Samita Bhatt, Reader of this Court in terms of orders of Hon'ble High Court of Delhi bearing Nos. R-235/RG/DHC/2020 dated 16.05.2020, 16/DHC/2020 dated 13.06.2020, 22/DHC/2020 dated 29.06.2020 and 24/DHC/2020 dated 13.07.2020.
Matter is proceeding at the stage of hearing of any further arguments/order.
Let notices be issued (through email or WhatsApp only) to Ld. AR(s) for the parties with following directions:
i. To send their written submissions in synopsis form, as brief as possible;
ii. To give their consent that they are agreeable for final disposal of the case through their written submissions;
iii. Whether they want to address oral arguments through video conferencing as well in addition; and
iv. In the eventuality that Ld. AR(s) for the parties or any one of them are not inclined for video conference arguments and they are not willing for disposal of the case even on written submissions, the case shall stand adjourned with the other en bloc cases to be taken up for physical court hearing as and when the Courts resume their normal functioning.
In the meantime, Ahlmad is directed to get the case file scanned.
List the matter awaiting the consent and scanning of the file on 01.09.2020, the date already fixed vide order of the Ld. District and Sessions Judge, Rouse Avenue District Courts, New Delhi, in this regard.
A copy of this order be sent alongwith the notices to the Ld. AR(s) for the parties. A copy of this order be also sent to the Computer Branch for uploading on the official website. A signed copy of the order sheet may be filed after resuming of the courts normal functioning.
Susamma Mathai Vs. R.B. Seth Jessa Ram Hospital
29.07.2020
Present: None.
Matter has been taken up through video conferencing hosted by Ms. Samita Bhatt, Reader of this Court in terms of orders of Hon'ble High Court of Delhi bearing Nos. R-235/RG/DHC/2020 dated 16.05.2020, 16/DHC/2020 dated 13.06.2020, 22/DHC/2020 dated 29.06.2020 and 24/DHC/2020 dated 13.07.2020.
Matter is fixed for Misc/appearance.
Let notices be issued (through email or WhatsApp only) to Ld. AR(s) for the parties with following directions:
i. To give their consent that they are agreeable for taking up the matter through video conferencing; and
ii. In the eventuality that Ld. AR(s) for the parties, are not inclined for video conference hearing of the matter, the case shall stand adjourned with the other en bloc cases to be taken up for physical court hearing as and when the Courts resume the normal functioning.
In the meantime, Ahlmad is directed to get the case file scanned.
List the matter awaiting the consent and scanning of the file on 01.09.2020, the date already fixed vide order of the Ld. District and Sessions Judge, Rouse Avenue District Courts, New Delhi, in this regard.
A copy of this order be sent alongwith the notices to the Ld. AR(s) for the parties. A copy of this order be also sent to the Computer Branch for uploading on the official website. A signed copy of the order sheet may be filed after resuming of the courts normal functioning.
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Part 5 – Working Paper
The Effects of Large-Scale Land Acquisitions on Households in Rural Communities of the Global South
Ghana: Case Study GADCO, Volta Region
Kristina Lanz
1
1. Common introduction to the case studies
1.1. Research questions
The central question of this interdisciplinary project was: How do LSLA influence local actors' configurations (e.g. local councils, "chiefs", farmers' associations, NGOs, intermediaries, traders, landowning farmers, non-land-owning farmers, women), actors' strategies and decision making about the food system, and what are the impacts on the food security (and related food sovereignty) of local women and men?
We approached this main question considering that LSLA are more than a new form of land tenure; we maintained that LSLA are a partial appropriation of the food system with corresponding impacts on gender relations, governance and food security. Consequently, we expected LSLA to have impacts on (1) food production, (2) food processing, (3) food distribution and (4) food consuming, the four constitutive elements of the food system 1 , all of which are highly gendered processes. This shift of focus which puts the appropriation of the food system (rather than merely land) in the center of the analysis simultaneously puts gender issues into the limelight.
We examined our overall research question from the perspective of two main questions:
Q1. What are the impacts of LSLA on the configuration of actors who are using, maintaining and organizing the local food system and what coping/resisting strategies do these actors develop?
1.1. How do the relationships among local actors change with the arrival of LSLA considering the impact of LSLA on the tight web of existing rights to natural resources, guaranteed either by formal institutions (property titles, contracts, access right guaranteed by laws, legal agreements) or by informal institutions (customary law, informal agreements such as crop sharing systems, redistribution of heritage of use rights of commons in the context of community property)? How LSLA influence the power relations within and among groups of actors?
1.2. Do actors and actors' networks favor or oppose LSLA? What are their strategies to defend their rights and interests in the local food system in front of LSLA?
1.3. How do the relationships between men and women (decision-making power, division of unpaid and paid work, care arrangements) change with the arrival of LSLA?
Q2. What are the impacts of the configurations of actors and their strategies on the local food system in terms of food security?
2.1. What are the impacts of the actors' configurations and strategies created by LSLA on the four components of the food system? What are the corresponding effects on food security and food sovereignty?
2.2. How deliberative and inclusive is decision making regarding the local food system before and after the establishment of a LSLA? How are marginalized actors (local women, landless laborers, ethnically oppressed groups) involved?
2.3 How do women and men get involved in the four components of the food system, i.e. food production, food processing, food distribution and food consuming?
1 Ericksen P.J., Ingram J.S.I., Liverman D.M. (2009) Food security and global environmental change: emerging challenges. Environmental science and policy 12: 373–377.
1.2. Methodology
LSLA exist in many different forms. In this research, we focused on types of LSLA in which property rights on and access to commons are restricted and in which (at least some) small-scale farmers have the possibility to access to contract farming with investors.
We compared Ghana and Peru. Each PhD- researcher was in charge of one case study (Ghana or Peru). Both countries governments encourage LSLA and consequently have attracted many investors, particularly in the biofuel sector. Furthermore, both countries experience high levels of food insecurity in rural areas. Two related study sites per country were be analyzed using a variety of mainly qualitative methods. We choose countries with a very different cultural, social and economic background in order to test the general validity of our hypotheses («most different system design») 2 . In other words, if our hypotheses are confirmed in two very different settings, we expect that our conclusions will apply to more average settings as well.
Our analysis took place at three different moments in time: (1) before the implementation of LSLA (t–1); (2) today, i.e. two or three years after the implementation of LSLA (t0); and (3) in the near future (t+1) as the result of changes resulting from more or less voluntaristic intervention scenarios.
1.3. Investigation, methods and data collection procedure
Our research project was divided into three main phases of research. Dissemination of the results is a transversal task that took place throughout the whole project:
1. Collection of available information: Literature review, first analysis of the institutional regimes at national level (laws, regulation, property rights, court decisions, past LSLA, institutional context, etc.)
2. Field work in Ghana and Peru: First we gathered all relevant written information concerning the study sites: maps, scientific literature, secondary literature, annual reports of commercial actors, statistical data, registry of land titles, contracts, press articles, etc. Second we approached gatekeepers (local chiefs, mayors, teachers) in each community in order to identify the main actors and actors' networks involved in the opposition or endorsement of LSLA. These actors were interviewed using semi-structured interviews to find out their strategies and networks. Third, we randomly selected a first number of households (the initial sample was further expanded through snowball sampling). Wherever possible a female and a male member of the household were interviewed using semi-structured interviews. Two focus group discussions per community helped us to further highlight differences between the male and female experiences of LSLA.
Institutional resource regime (land tenure law, customary law, public policies): The first part of the semi-structured interview focused on rules and regulation. This was an in situ extension of phase 1: the concrete implementation of national rules and regulation, as well as the distribution of property rights and customary law can only be identified through direct interviews of concerned actors.
Actor networks and strategies with a special focus on gender: This second part of the interview helped reconstructing actors' strategies, networks, alliances, common interests, conflicts, etc. We also analyzed if investors consulted with local women and men before/during the appropriation process.
Condition of the food system: The third part of the interview focused on the evaluation of the condition of the food system, i.e. on changes in production, processing, distribution and
2 Przeworski, A., Teune, H. (1970) The Logic of Comparative Social Inquiry. New York, Wiley.
consumption patterns, as well as individual decision-making power regarding these four processes.
3. Data analysis and writing of SNIS report: Collected documents and interviews were analyzed according to their thematic content. This information was used to analyze the relationship between the analytical variables and to discuss the research hypotheses.
2. Ghana: Specific country characteristics
2.1. Summary of the main characteristics: land, history and political system
2.1.1. Land
Ghana is located on the Atlantic Coast of West Africa, sharing borders with Togo in the East, Ivory Coast in the West and Burkina Faso in the North. The total land area is 239'460 km². It is divided into 10 administrative regions (Northern, Upper East, Upper West, Brong Ahafo, Ashanti, Western, Central, Eastern, Greater Accra, Volta) and 170 districts with the capital being in Accra.
The Volta basin in the centre of Ghana, stretching from Tamale in the North to the mouth of the river Volta in Ada in Ghana's Volta region, is the country's most important drainage system. It is covered by the lake Volta, which is the world's largest artificial water body and home to Ghana's hydro-electric plant, providing both Ghana and its neighbouring countries with electricity.
Ghana is very rich in natural resources including wood, timber and of course arable land, as well as minerals, such as gold, diamonds, manganese and bauxite. Furthermore large oil reserves were discovered off the coast of Takoradi in 2008 (?).
2.1.2. History
Before colonialism the territory that now makes up Ghana was home to several independent kingdoms, with the savannah kingdom of Dagomba in what is now Ghana's North and a very powerful confederation of Asante states under the control of an Asante king (the Asantehene) in the center of modern-day Ghana. Basing their power on long-established trade of gold and later on slaves, among others with the Portuguese, who were the first Europeans to arrive in Ghana in 1471, the Asante Confederacy represented "an elaborate military hierarchy with powerful armies, a bureaucracy, and a taste for imperialism which brought them into immediate conflict with the British, often to latter's temporary demise (Apter 1972:23)."
After the Portuguese, word quickly spread of the immense gold reservoirs in Ghana, and British, Dutch, Swedish and Prussian traders all established outposts (forts along the coast) in the territory known as the "Gold Coast". The Gold Coast protectorate "developed as an alliance of African states with British and Danish interests that had arisen in opposition to Asante domination and was committed to the ideology of free trade. (Amanor 1999, p.47)". The British Gold Coast was established in 1867, after having signed a number of protectorate treaties with chiefs and kings in the coastal area and the Northern Savannah and having annexed the Danish Gold Coast. The Dutch Gold Coast was annexed in 1872. However, in order to get the Asante Confederacy to surrender, three wars were fought with the final military defeat of the Asante taking place in 1901 (Boone 2003).
Mamdani argues on a general basis for much of Africa that before colonialism custom was very much in flux, as many changes were sweeping the continent (i.e. the abolishment of the slave and ivory trade) and traditional leaders were unsure how to keep their power. Colonial governments all over Africa, but particular in countries where indirect rule was the preferred mode of government, enshrined the power of chiefs and other traditional leaders, at the same time eliminating the powers of other traditionally powerful actors (i.e. council of elders, age sets, gender association) (Mamdani 1996). The same holds true for Ghana. By vesting extensive powers in local chiefs and enshrining them in law, the British to a large extent shaped what is today called custom. In 1930, the British established Native authorities, recognizing precolonial political jurisdictions and centralizing power in paramount chieftaincies. Native authorities were given extensive powers of taxation, their claims to land were enshrined in law and they were
given the right to demand land tribute from their subjects. Furthermore Native tribunals were made mandatory courts of first instance (Boone 2003, p.147-48).
As a result of massive popular protests against British indirect rule in 1948, the Conventions People Party (CPP) with Kwame Nkrumah as a leader was formed. The CPP demanded immediate independence. Kwame Nkrumah won his first election in 1951 and the Gold Coast, as the first African country, was finally granted independence in 1957. Kwame Nkrumah changed the country's name from Gold Coast to Ghana. The institution-building strategy Nkrumah engaged in since 1951 has been described as "path-switching, rather than path-dependent (Boone 2003:173)". Nkrumah, through several reforms of the colonial rural government institutions, radically tried to dismantle the power of local chiefs. In 1952, he replaced the Native Authorities, by elected Local Councils with some "traditionally appointed" members. Soon after independence these "traditionally appointed" members were abolished altogether. Old local government institutions were stripped piecemeal of their powers (Boone 2003). However, a closer look reveals, that where chiefs were sympathetic to Nkrumah and his CPP, Nkrumah did not hesitate to ally with them against his opponents. Ultimately, Nkrumah "failed to uproot chiefly authority and prerogative at the micro-level, where it remained embedded in relations of production and land access and in deeply personalized structures of obligation, dependency and authority (Boone 2003:177)."
In 1966, the Nkrumah government was overthrown by a military coup – the first of four military coups and nine changes in government between 1966 and 1981. In 1981 Flight Lieutenant Jerry Rawlings took over power in a military coup. He implemented one of Africa's first and most farreaching structural adjustment programme in the 1980s, which amongst others led to an opening up of the market to foreign investment. He also pushed forward the agenda of decentralization by setting up a "Public Administration Restructuring and Decentralization Implementation Committee" (PARDIC) to "review all the changes and initiatives of local governance that had been discussed and taken place since independence" (Hofmann and Metzroth 2010:5).
As a response to increasing demands from international donors, Ghana's first presidential and multiparty elections were held in 1992 – Rawlings won the elections and stayed in power until 2000 when he was succeeded in the 2000 elections by John Kufuor and his National-Patriotic Party. Kufuor stayed in power for four two-year terms and was succeeded in free and fair elections by John Atta Mills from the National Democratic Congress (NDC) in 2008, who in turn was succeeded by John Dramani Mahama (NDC) in 2012.
2.1.3.
Political system
Modern-day Ghana is a democratic republic, in which the president acts both as head of state and head of government. While executive power is vested in the government, legislative power is vested in both government and parliament, which consists of 275 members. Both parliamentary members and the president are elected every four years by majority vote. While there are 23 registered political parties, only 11 are active. Since 1992, all presidents have come from one of the two major parties – the Convention Peoples Party (CPP) and the Democratic Peoples Party (DPP). The 1992 Constitution forms the basis of the current system of decentralization and establishes the District Assembly as the highest political authority in the District. The District Chief Executive is to be appointed directly by the President (with a 2/3 parliamentary approval) and each electoral area is to elect one member to the DA. Furthermore, a maximum of 30 % of the seats are reserved for people directly appointed by the President in consultation with traditional authorities and interest groups in the district (Art.242). In practice however, these stipulations not only mean that DCE's are close allies of the government, but also that the 30% of seats appointed by the President are made up of political allies, thus expanding the central governments control.
Chieftancy as an institution is recognized by the Ghanaian constitution in Art. 270 (1): "The institution of chieftancy together with its traditional councils as established by customary law and usage is hereby guaranteed".
The Constitution defines customary law to be part of the common law of the country (Art.11 23) and establishes a National House of Chiefs as well as a Regional House of Chief in each region, with the aim of codifying customary law and abolishing harmful customary practices (Art. 271).
Furthermore, the 2008 Chieftancy Act (Section 15) declares that the government has no jurisdiction over chieftancy disputes. The country thus officially recognizes two legal fora for dispute settlement: the Judiciary made up of superior courts, regional tribunals and lower courts as well as traditional courts, which are usually the first point of call for minor crimes, as well as land conflicts. While the statutory system suffers from corruption and lack of resources, there are also indications that traditional mechanisms of conflict management are breaking down due to the increasing importance of Christianity as opposed to the worshipping of traditional Gods and the increasing "Westernization" of cultures and values, which leads the youth to turn away from tradition (Agymean-Duah 1998).
While chiefs are not supposed to be politically active (Art.276 1), they nevertheless have a lot of weight in political decisions. On the one hand, the Constitution specifically makes room for chiefs to advise on any matters or laws concerning or affecting chieftancy (Art.272), on the other hand chiefs have a lot of influence within the areas of their jurisdiction and their opinions thus carry a lot weight at election times (in 2012 selected chiefs were thus given brandnew Toyota's by the leading NDC and in 2015 – at the time of research – the NDC government spent 37.5 million $ on Nissan Patrol's to be given to chiefs for their support in the 2016 election).
Hofmann and Metzroth (2010:5) summarize the power struggles between chiefs and the Ghanaian state: "Since the era of colonization, Ghanaian governments have struggled with how to use traditional authorities to achieve their own objectives without making chiefs more powerful than themselves. The back and forth between the strengthening and weakening of chiefs is an ever‐present element of Ghana's history and politics."
2.2. Characteristics of land tenure/land use
2.2.1. Statutory institutions
Land tenure in Ghana is a highly complex issue, as can be witnessed by the 166 laws currently dealing with land, the high number of formal and informal institutions dealing with land, as well as the backlog of about 30'000 land cases in Ghanaian courts. An attempt will be made here to provide an overview of the most important institutions.
The Ghanaian Constitution distinguishes between public land and stool lands, which make up app. 20% and 80% of the land surface. All public lands, as well as all minerals and water bodies in Ghana are thus vested in the President on behalf of the people of Ghana (Art. 257). The constitution also establishes the National Lands Commission and its regional branches as the managing bodies for public and vested land.
Art. 267 states that "All stool lands in Ghana shall vest in the appropriate stool on behalf of, and in trust for the subjects of the stool in accordance with customary law and usage." While recognizing chiefly authority, the Constitution however also tries to limit it through several provisions. It for example stipulates that there shall be "no disposition or development of any stool land unless the Regional Lands Commission of the region in which the land is situated has certified that the disposition or development is consistent with the development plan drawn up or approved by the planning authority for the area concerned" (Art.267). However, a study by Yeboah and Shaw (2013) finds that 80% of all developments in Ghana proceed without
authorisation from the relevant planning authorities. This has a variety of reasons, often chiefs, who have the ultimate control over land contract self-styled planners and surveyors in order to keep all proceeds from leased out parcels, furthermore there is a lack of qualified planners, lack of funds and a lack of deterrent legal measures (i.e it is more economical to build without permission and pay a fine if caught).
Other institutions have been created in the Constitution and consequent laws to cut the power of chiefs. The Office of the Administrator of Stool Lands (OASL) for example has been created through the 1994 OASL Act. This office was created in order to collect all "rents, dues, royalties, revenue or other payments whether in nature or income or capital from the stool lands". The revenue thus collected shall be disbursed in the following proportions: 10% to the OASL to cover administrative expenses, 25% to the stool for maintenance, 20% to the traditional authority, and 55% to the District Assembly (Sections 3 & 8, OASL Act 1994). However, most chiefs have heavily resisted this imposition and claimed that they are perfectly able to manage their own lands (Alden Wily & Hammond 2001).
While there are a large number of national, regional and district level land agencies (different papers quote different numbers and Spichiger and Stacey speak about "23 or so land agencies") overlapping mandates, budgetary and staff constraints and crucially contradictions with local customary rules, have made policy implementation difficult (see for esample Ubink & Quan 2008, Toulmin 2009).
2.2.2. Customary institutions
Most people in Ghana thus derive their access to land through the customary institutions of chieftancy, lineage and kinship, which vary according to the different regions. As has been outlined above, customs have been strongly influenced by colonial and post-colonial governments and are rapidly changing. Generally, the allodial title in land, which is the highest interest in land, is vested in communities, who are represented by stools or skins 3 . The various chiefs, who represent these stools or skins are charged with land management, governance, as well as dispute settlement. In certain areas of Ghana, the allodial title is also vested in tendamba (first settlers), clans, families or village communities. Within these systems, families and individuals have rights over individual parcels of land, which are inherited through the male or female line, depending on the inheritance system. Individual parcels can be leased out to other families within the same community and in some cases also sold. Strangers, who wish to acquire land, first have to seek the permission of chiefs (Kasanga & Kotey 2001, p.13). Customary systems are characterized by a lack of written records, i.e. neither the size of individual parcels, nor any leases or sales are recorded. Increasing land values and population pressure in certain areas have led to increasing disputes over boundaries, multiple land sales and a shift in the perception of chiefs from custodians of the land to owners of the land. An increasing individualisation of land is also noted in certain areas with increasing land sales to strangers (Kasanga and Kotey 2001).
Regarding access to land it is important to note that while women in customary systems (patrilineal and matrilineal) often have access to land, this tends to be mediated through their relationship with a male family member, be it a husband, father or brother. They rarely have control over the allocation of land, which is carried out by chiefs, male lineage heads and household heads. This implies that when women are allocated land, it is often a relatively smaller and qualitatively worse plot as compared to men's plots (see Amanor 1999, Tsikata and Yaro 2011). Particularly in patrilineal societies, women often loose all access to their fathers
3 While in the Southern regions of Ghana, chiefs are usually seated on wooden stools, which are the symbol of their authority, animal skins are the equivalents of stools in Northern Ghana.
land once they get married. Upon divorce or death of their husband, land accessed through their husbands tends to revert back to the husbands family, often leaving women and children destitute.
2.2.3. Dispute settlement
People whose rights have been infringed have a number of options: district or magistrate courts are the lowest level courts applying formal state law. They are supervised by state courts or high courts – it is envisaged in the current Land Administration Project (LAP) (see 3.2.2) that all high courts shall have a land court. While these formal courts are often inaccessible to local people, due to high costs involved, around 110 districts also offer alternative dispute resolution or mediation services by the Commission on Human Rights and Administrative Justice.
Most people however choose to solve disputes locally through family heads, village elders and chiefs and only use state courts as last option when traditional mechanisms have failed (Spichiger and Stacey 2014). Traditional mechanisms of conflict management rely on elders to mediate in the process of conflict resolution, as well as on the power of ancestors and local gods and shrines, as disputants usually have to take an oath and untruthfulness or non-compliance with the punishments would lead to severe retribution. Women are usually not represented within the council of elders.
2.3. Characteristics of gender issues
While women in Ghana play a major role in the largely informal labour market, and particularly food production, processing, trading and marketing (see Chapter 2.4), there are several factors of discrimination. Even though the majority of women are engaged in agriculture, they have limited access to land (see 2.2), agricultural assets, labour and capital. Agricultural extension services also often do not reach women, as they are not visible as farmers in their own right.
Time-consuming reproductive activities, such as child rearing, cooking, fetching water and fuel wood, cleaning, looking after sick people, are almost exclusively done by women. While men are supposed to contribute monetarily to the upkeep of the household, high unemployment, migration and widespread polygamous practices often mean that women are in fact the main income earners.
Women are also highly under-represented in formal employment, particularly in higher paid managerial positions, as well as in public administration, i.e. within the Ministry of Food and Agriculture, "women make up just 16% of the total workforce, and 9.5% located at a high enough status to participate in decision making" (FASDEP, p.17)
A similar picture emerges in political life – in the 2012 elections, women won only 11% of the parliamentary positions and out of the 72 Ministers of State, 24% are women. Similarly, in customary decision-making structures, such as lineage meetings, traditional dispute resolution mechanisms, women are heavily under-represented.
Regional differences are however important, as women tend to have more power in matrilineal communities than in patrilineal ones and in the Ashanti Region for example Queen Mothers tend to play very important roles in the community.
Women are however a very heterogeneous group, and they have different roles and status in their communities according to age, kinship, migrations status and wealth.
2.4. Characteristics of food security issues
Ghana is predominantly an agricultural economy, with agriculture contributing app. 37% of the country's GDP. The 2000 census revealed that 50.2 % of the labour force, about 4.2 million people, were directly involved in agriculture. It is estimated that about 2.74 million households operate a farm or hold livestock, with approximately 90% of the farms having a size of less than 2ha. 80% of Ghana's agricultures produces comes from small-scale family-operated farms (FASDEP II 2007). Women are particularly engaged in the agricultural sector, with about half of Ghana's female population being self-employed in agriculture (FASDEP II). Most small-scale farmers engage mainly in food crop production and rely exclusively on rain for crop irrigation, making them vulnerable to climatic vagaries (less than 1% if Ghanaian farmers have access to irrigation). The main food crops grown vary slightly by climatic region, with cassava and maize being dominant on the coast, cassava, plantain and maize in the forest zone and maize, groundnuts and millet in the savannah zone (Chamberlin 2008, p.15). The main cash crops are cocoa, oil palm, coconut, coffee, cotton, kola and rubber, with oil palm, coconuts and rubber being mainly produced on large plantations (WFP 2009, p.37). Livestock ownership is especially prevalent in the North and in the Volta region, with the main animals being poultry, goats, sheep and cattle.
Most farmers use mainly traditional hand tools for farming, i.e. the hoe and the cutlass. Other farming tools, such as a tractor or a donkey/cow plough are only used by a small percentage of Ghanaian small-scale farmers, and where used tend to be rented or borrowed rather than owned. The majority of farm labour is drawn from within the household. About half of all small-scale farming households temporarily hire farm labour. (WFP 2009).
One of the major constraints for farmers is the lack of storage and drying facilities. According to the MoFA, post-harvest losses make up 20-50% of the harvest for fruits, vegetables, roots and tubers and 20-30% for cereals and legumes (FASDEP II). Combined with poor road networks, which make markets inaccessible to many farmers, this means that small-scale farmers often have to sell their produce to traders at post-harvest time, when the prices are low and in turn rely on markets during the lean season, when food prices are high (WFP 2009, Amanor 1999). Poor road infrastructure also aggravates women's time constraints, as they often have to walk a long way to the market centres carrying heavy headloads.
Due to the risks and the low returns associated with small-scale farming, as well as the lack of alternative employment opportunities in rural areas, there is an increasing out-migration to rural areas, particularly by young men, leaving older and female family members in charge of farming activities (WFP 2009).
A comprehensive survey conducted by the World Food Programme in 2008 found that across Ghana approximately 5% of the population (1.2 million people) were food insecure and another 9% were vulnerable to food insecurity. However there were great regional differences, with 34% of people in the Upper West Region qualifying as food insecure, followed by Upper East (15%) and Northern (10%). The lowest food insecurity was found in the Western Region (1%) and Greater Accra (1%). Rural areas are generally also much more affected by food insecurity than urban areas (WFP 2009). Furthermore, women tend to be more affected by food insecurity than men, due to the high prevalence of female-headed households in some regions and a lack of income-earning opportunities for women (FASDEP II).
In order to establish why food insecurity occurs in Ghana, I will look more closely at the three dimensions of food security as provided by the FAO food security definition.
2.4.1. Food availability
Ghana is to a large extent self-sufficient with regards to food production. The major staple foods, maize, cassava, plantain, yam and cocoyam are all produced in more than sufficient quantity.
The only staple foods that are not produced in sufficient quantity are rice and wheat. This indicates that food availability is not a major problem in Ghana.
The commons can also provide major sources of food and cooking inputs (water, fuel wood) to rural people and are of major importance to the livelihoods of the rural poor. Large-scale land acquisitions of so-called 'unused land' thus pose a particular threat to food security (Tsikata & Yaro 2011).
2.4.2. Food Access
A majority of people in Ghana depends largely on their own rainfed subsistence production and on locally-sourced food from the market for their food consumption (Quaye et al. 2010, WFP 2009). This means that rainfall variability poses high stress on households and food insecurity is often associated with poor harvests due to environmental degradation, droughts, natural disasters or conflicts (FASDEP II). However most households also substitute their own production with considerable amount of locally purchased food and are thus also vulnerable to food price fluctuations. Since 2000 food prices in Ghana have been soaring with a stark price increase witnessed in 2007/2008 (international food price crisis), when prices for cowpea, rice and maize increased by 73%, 48% and 88% respectively (Quaye et al. 2010, WFP 2009).
2.4.3. Food utilization
One way of assessing food utilization is to look at child malnutrition and stunting, which is very high in Ghana. According to the WFP survey in 2009, almost 12% of children below the age of five were underweight and almost one quarter of children were stunted or too short for their age. Malnutrition is also one of the main causes of child mortality in Ghana. Underlying causes are lack of access to adequate health service, lack of clean water and lack of access to adequate sanitation (WFP 2009).
2.5. History of LSLA at national level
Large-scale land acquisitions for export agriculture and gold mining in Ghana predate even the colonial era. During the gold boom of the 1980s, more than 400 mining companies held concessions in the Gold Coast territory (Amanor 1999). Furthermore in the mid-1890s Ghana already exported significant quantities of cocoa, a result mainly of the selling of large tracts of land by chiefs in Akwapim to companies of migrant farmers. Production soon spread to Southern Asante. In 1911, Ghana was the world's largest cocoa exporter (Boone 2003).
While the British were eager to promote the cocoa industry, they were also concerned of the increasing land commercialization in rural areas, as it would free peasants from the control of chiefs, which was of paramount importance to British indirect rule. They thus gave chiefs widereaching powers to allocate land and collect land tributes. Sara Berry (1993:107, 111) recounts how the colonial authorities "persuaded the chiefs in Asante and Brong Ahafo to prohibit the sale of land in their domains. … They endorsed the chiefs' right to demand tribute from "strangers" who sought permission to cultivate [stool] land. … [C]hiefs in Asante and neighbouring states demanded one third of the cocoa crop as tribute from stranger farmers." These far-reaching measures served effectively to empower and enrich local chiefs. "The system was also rife with abuse and corruption. Chiefs were known to privatize stool resources, exploit tenants, abuse debtors, and forsake material and spiritual obligations to their subjects: from the 1920s onward, popular protests and anger at chiefly abuses led to an ever-rising number of "destoolments" of chiefs. More ominously class-like tensions between commoners and chiefs simmered across the entire cocoa belt (Boone 2003, p.154)".
It was however only after independence that the development of state-led large-scale industrial agriculture became a policy objective. Large swaths of land were thus expropriated through compulsory acquisition by the state for the development of these state farms, the majority for the development of industrial crops, such as sugar, palm oil, rubber and cotton. The objective to replace small-scale food production with large-scale mechanized farming however was not achieved, and most food continued to be produced by small-scale farmers (Amanor 1999).
During the Acheampong military regime in the 1970s a new approach to agriculture was developed with guidance and aid from the World Bank. It was focused on the establishment of large-scale industrial agriculture, especially oil palm, cocoa, cotton and tobacco, as well as irrigated rice and vegetables – and involved the establishment of large plantation and the involvement of outgrowers. The Special Scheme for Participation in Agriculture aimed to encourage foreign and transnational capital to invest in agriculture. While the state helped with land acquisitions and the provision of infrastructure, investments had to have at least 40% Ghanaian ownership and investors were obliged to create outgrower schemes. According to Amanor (1999:37) "outgrower schemes were written into these projects as a means of camouflaging the expropriation of land, by appearing to give farmers a role in new development projects, but also as a means of creating levers by introducing contract farming and integrated peasant farms as a source of low-cost labour for agribusiness." While only 12 companies participated in this special scheme and most of them dropped out again after a few years, the expropriation of land was significant.
The changes that had been introduced in the 70s were cemented and expanded in the 80s under structural adjustment. Structural adjustment policies promoted by the World Bank and the IMF in the 1980s and implemented by most developing countries have been heavily criticized on many fronts – which has led to development scholars calling the 1980s the "lost decade". Ghana was one of the first countries to implement very far-reaching SAP policies. Policies included the removal of subsidies from inputs and seeds, removal of protective tariffs on imported food, as well as the divestment of state enterprises and the promotion of foreign investment in agriculture through extensive tax concessions and other policy measures (Amanor 1999). The promotion of export crops, the increased competition from cheap food imports, as well as the rising costs of seeds and other farm inputs served to undermine local food production, with women, who made up a large part of food producers and traders, being particularly hurt by these changes (Manuh 1994). Structural adjustment in Ghana, as in other countries, paved the way for the increasing commoditization of natural resources and the environment.
The 2000s saw an increasing investment in large-scale horticultural ventures, especially pineapple. The term land-grabbing has cropped up in academia in 2008, after a research report by the international NGO GRAIN, highlighting how the food and financial crisis have triggered a new rush on land in developing countries by foreign investors. Since then much research has been conducted and land grabbing has become a topic of media interest and public debate all over the world. The previous sections have served to show, that land grabbing is by no means a new trend, but has been going on for many years, not only in Ghana, but in many developing countries. However, there are indications, that also in Ghana, large-scale land acquisitions by foreign investors have risen drastically since 2008. Between 2007 and 2012 annual foreign direct investment has increased more than six-fold (UNCTAD 2012).
According to Schoneveld et al. (2011) since oil prices reached a peak in 2006, more than twenty commercial plantation companies (mostly foreign owned) have gained access to an estimated 1.184million ha of land in order to develop biofuel crops – an equivalent of 4.6% of Ghana's land area (Schoneveld 2011). However, according to a personal conversation with the author, by now there is only one company left operating in the biofuel sector. While some companies never took off or went bankrupt after a few years due to unrealistic yield projection for jatropha, others have generated very large resistance and have thus switched to food crop production. Recent years have however also seen a renewed rise in investments in the horticultural and food crop sectors (Amanor 2009, Tsikata and Yaro 2011). These are aided by Ghana's conducive policy environment – the Growth and Poverty Reduction Strategy 2006-2009 (GPRS II), as well as the
Food and Agriculture Sector Development Policy (FASDEP II) both place high priority on private sector-led industrial agriculture in order to generate growth and reduce poverty in rural areas. Furthermore, the Ghana Investment Promotion Centre offers extensive concessions to foreign investors.
However, it is interesting to note that the majority of recent large-scale land acquisitions have been negotiated directly between foreign investors and traditional authorities, in many instances bypassing relevant authorities, i.e. the Lands Commission or the Environmental Protection Agency. Local chiefs have been very welcoming to foreign investors, granting them long-term leases of land for up to 99 years, sometimes for as little payment as 1.50$ per hectare per year (Tsikata and Yaro 2011, Schoneveld et al. 2013). What little evidence there is of actual contracts signed between investors and chiefs, also shows that duties of the investors are often geared to the fulfillment of the chiefs personal ambitions rather than the aspirations of communities.
2.6. Why Ghana is a good country to study
Ghana is an interesting case study with regards to our overall research question for a variety of reasons. It not only has a long history of large-scale land acquisitions, it also offers an ideal background for the study of gender and food systems. The country is characterized by smallscale agriculture, with women all over Ghana playing a substantial role not only in the production of food crops, but similarly in processing activities, as well as in trading and marketing food crops and products. Furthermore, as in most countries, women tend to be in charge of household food security, and are thus bound to be particularly affected by any changes in the food system. Another aspect, which makes Ghana an interesting case to study is it's land tenure system, which is characterized by two competing and at times collaborating systems – a large body of state laws and agencies and a very strong customary system, which takes different forms in different regions of Ghana.
3. General institutional context
3.1. Relevant public policies in connection with the food system:
The main policy of importance to our research questions in Ghana are agricultural policies, which heavily promote large-scale land acquisitions, with a specific focus on outgrower schemes. Gender is mainstreamed in most of the Ghanaian agricultural policies
3.1.1. Agricultural Policies
Ghana's agricultural policy environment is very conducive to large-scale industrial agriculture – the Growth and Poverty Reduction Strategy 2006-2009 (GPRS II), as well as the Food and Agriculture Sector Development Policy (FASDEP II) both place high priority on private sectorled industrial agriculture in order to generate growth and reduce poverty in rural areas. One of the main objectives of Ghana's agricultural policy, as well as its Private Sector Development Policy and National Development Plan is to modernize Ghanaian agriculture away "from a subsistence-based small-holder system to a sector characterized by a stronger market-based orientation based on a combination of productive small-holders alongside larger commercial enterprises engaged in agricultural production, agro-processing and other activities along the value chain (GCAP website)."
The policy objectives of FASDEP II are 1) Food Security and Emergency Preparedness; 2) Improved Growth in Incomes; 3) Increased Competitiveness and Enhanced Integration of into Domestic and International Markets; 4) Sustainable management of land and environment; 5) Science and Technology Applied in food and agriculture development; 6) Improved Institutional Coordination. Various steps are outlined to reach these goals, i.e. development of irrigation schemes, post-harvest management strategies and infrastructure, as well as the development and enforcement of community land use plan and the heavy promotion of nucleus-outgrower linkages. FASDEP II furthermore places high emphasis on gender equality and commits all relevant agencies to mainstream gender in all programmes and policies according to the Gender and Agricultural Development Strategy (GADS).
GADS has eight key strategies which are being used as the basis for mainstreaming gender into the policies and programmes of the agricultural sector. While gender awareness among MoFA staff and agricultural stakeholders, particularly MoFA directors, have apparently increased there has been a rather slow implementation of strategies in the GADS by MoFA Directorates and stakeholders. This has been attributed to the absence of a monitoring framework that would hold stakeholders accountable for implementing the GADS.
The implementation is in the hands of the Ministry of Agriculture (MofA) and the District Directorates of Agriculture with their agricultural extension officers. Districts commit themselves to develop their district development plans according to the objectives of FASDEP, however taking the specific situation in the district into account. Plans have to be developed in consultation with the private sector and NGO's and the contribution of the private sector and other stakeholders needs to be clear in the final district plan. The implementation of these policies relies heavily on donor funding, i.e. the following funding mechanisms are identified in FASDEP II: Budget support from Development Partners; co-financing with the private sector; beneficiary contribution; internally generated funds/non-tax revenue; loans and grants received from international financial institutions and bilateral agreements.
This policy focus is thus heavily aided and encouraged by donor-driven projects, such as the Ghana Agriculture Project (GCAP), a US$ 145m Government of Ghana project funded jointly by the World Bank and USAID that aims to develop the commercial agriculture sector in Ghana. It includes interventions and matching grants aimed at supporting Ghana's "commercial agriculture renaissance": develop large irrigation canals, facilitate land acquisition, support and extend nucleus farms for the benefits of smallholders and outgrowers, expand infrastructure into outgrower lands, promote a secure investment climate that focuses on access to land (see FASDEP website). Projects finances under GCAP are also supposed to integrate a minimum of 30% women in their outgrower schemes.
3.2. Formal property rights
3.2.1. The state of property rights formalization in Ghana
There have been several attempts to formalize property rights in Ghana. While deeds registration has existed since colonial times, but is fraught with several problems (see 3.2.3), land registration has first been introduced in 1986 by the Land Title Registration Law. Since it has been found that this law has had little effect (see 3.2.3), the 1999 comprehensive National Land Policy (revised in 2002) aimed to strengthen the Land Title Registration Law. The Land Administration Project (LAP) as a multi-donor funded initiative of the Ministry of Lands and Natural Resources is based on the National Land Policy and lays the basis for ensuing land reforms. It started in 2003 with several pilot projects and is supposed to last 20 years (Spichiger and Stacey 2014). It aims to "develop a sustainable and well-functioning land administration system that is fair, efficient, cost effective, decentralized and that enhances land tenure security" (Ministry of Lands and Forestry 2003, p.12) by building on customary land tenure systems and officially vesting control over land management, registration and dispute settlement into Customary Land Secretariats (CLS). So far 37 Customary Land Secretariats (CLS) have been established by local landowning communities or traditional areas with the support from central government under the auspices of the Land Administration Project of the Ministry of Lands and
Natural Resources. „Their aim is to improve land management and administration at the local level and to „serve as an interface between the landowning communities and the public land sector agencies. (Government of Ghana Official Portal 2014)"
LAP can thus be seen as an attempt to formalize the customary – a process which has been criticized by many as it endorses the roles of chiefs as administrators of land, as if it were a timeless principle (Amanor 2005, ppp.110-111) and at the same time neglects inherent social and power disparities within customary systems. It is feared that this process will increase the power of chiefs to shape customary institutions in their own interest at the expense of local smallholder farmers (Ubink & Quan 2008, p.205). First studies on the effectiveness of LAP show that chiefs often use the establishment of Customary Land Secretariats "for centralizing the management of land transactions and the recording and formal documentation of land rights – as instruments for land disposals by the elite by concentrating on facilitating and documenting new land transactions, and failing to document the rights of indigenous land holders (Ubink and Quan 2008, p.208)."
3.2.2. Relevant legislation defining formal property rights
The Ghanaian Constitution differentiates between public and customary land (see 2.2).
Art. 266 states that "No interest in, or right over, any land in Ghana shall be created which vests in a person who is not a citizen of Ghana a freehold interest in any land in Ghana." It goes on to outline that foreigners may hold only a leasehold interest of up to 50 years.
The Land Title Registration Law (1986) unlike the Constitution recognizes the following interests in land:
- Allodial title: Vested in customary authorities (skins, stool, lineage heads). They have complete and absolute freedom in dealing with the land without compromising the rights of subjects who may be in possession of the land.
- Customary freehold: Interest in community land held by subgroups or individuals. Freehold continues as long as individuals acknowledge superior title of the customary authority. Interest is inheritable and holders have the rights to sell, lease, mortgage or pledge their title, as long as they recognize the superior authority of the chief. Land holders are required to perform certain services to the stool. If services are not performed or holders deny authority of the chief they might have to give up the land. Land also reverts back to the stool if it is abandoned.
- Common law freehold: Can be acquired through a grant made by the allodial owner, either by sale or by gift. This grant requires the parties to agree that their obligations and rights will be regulated by common law.
- Leasehold rights: Allow a person to occupy land for a certain period of time. It can be granted by the allodial freeholder or the individual holding land under customary freehold. Sharecropping agreement in many areas are an important means of gaining access to scarce land.
- Lesser interest in land are not very well defined
3.2.3. Information about cadaster, register of deed, use and transfer rights (including inheritance)
While a system of deeds registration has been in existence in Ghana since 1843, it has been replaced by the 1962 Land Registry Act. It however provides only for the registration of land transactions, and as such provides no proof of ownership of the seller of land. Very often inaccurate and unscientific plans are used. Furthermore, deeds are not stored electronically, but rather chronologically and in paper form, thus making them very badly accessible. Many of the older deeds also provide no residential or postal address (Aha Cashnoba 2013).
In 1986 a Land Title Registration Law was introduced as a more effective system of land titling (Spichiger & Stacey 2014). The law was designed to introduce a scheme for registering all interests in land, including those held by stools, skins or lineage groups (who were supposed to register their group right without providing names of members of the group). So far, the focus of this law has been on the two metropolitan areas Greater Accra and Kumasi. The impact of the law has been negligible, due to serious design and implementation defects. On the one hand deeds registration and title registration are carried out by different agencies, who work entirely separate, thus the scale of site plans and the numbering of parcels of land has been completely different (Kasanga and Kotey 2001). While title registration was eventually to phase out deed registration, this has not yet happened and the two continue working alongside each other with poor integration (Jones-Casey & Knox 2011)
Jones-Casey and Knox (2011) found that between 1986 and 2006 only 42'000 applications for land registration were submitted to the Land Title Registry, but due to weak administrative capacities only 30% of those were actually registered and Ghanaian courts were clogged with over 35'000 land disputes.
Inheritance is also mainly regulated through customary institutions and follows either matrilineal or patrilineal patterns according to the region. However, in order to combat discriminatory inheritance practices, the government passed the Intestate Succession Law in 1991. The law emphasizes the importance of the nuclear family and provides for equal shares of inheritance for both spouses and states that upon death of the husband, 2/3 of the inheritance shall go to his wife and children, while 1/3 shall go to his family. Furthermore, it prohibits the ejection of a spouse of child from the marital home prior to the distribution of the estate. The law however does not cover customary and polygamous marriages and generally tends to be overridden by customary inheritance practices.
3.3. Relevant customary institutions in connection with the food system
Customary institutions are of high relevance to the food system, as most land in Ghana is under customary tenure and state policies often tend to be weakly implemented. The local chieftaincy structure with its rules and regulations is thus of primary relevance to local land users. The main customary institutions that will be highlighted in the case study are those concerning land governance and dispute settlement, which have been briefly outlined in 2.2.
4. General description of the case
The Ghana Agricultural Development Cooperation (GADCO), a company made up of a multinational shareholder team and registered in the Netherlands, first came to the South Tongu District in 2011. The proximity of the Volta river and the district's climate make it a perfect location for rice growing. At the time of research, the company had leased app. 2000 ha of land directly from the Fievie Traditional authorities in exchange of an agreement that 2.5% of the company's sales go into a "community development fund" administered by the traditional authorities. While local state institutions were initially largely bypassed, the company has now registered the land deal with the Regional Lands Commission and is paying a water tax.
The company proclaims itself to be committed to "embedding the principles of sustainability into its core business strategy and operations (GADCO Website)" and has also received much positive media attention inside and outside Ghana (i.e. UNDP 2012, the Guardian 2013, Huffington Post 2014, Weltsichten 2014).
It however went bankrupt shortly after the first research stay in 2014, and was then taken over by the agro-processing company RMG Ghana Limited and restarted operations in 2015 (still using the name of GADCO).
4.1. "Issue at stake" Why is it a good case in connection with the research question?
This case study is particularly interesting, because it exemplifies one of the main conflicts visible in Ghana with regards to land use and ownership, i.e. the conflict between the customary system and the state. The fact that the company initially bypassed the state to negotiate directly with the customary authorities appears to strengthen their position vis-à-vis the state. While both GADCO and the traditional authorities refer to each other as "business partners", state authorities are also devising strategies to "get a piece of the pie".
In a rather traditional food system, where most people are small-scale farmers and common property resources, such as fuel wood, fishponds and grazing land are of major importance to people's livelihoods, the entry of a large-scale mechanized farm is bound to lead to disruptions and changes in the local food system. Several conflicts and divisions became visible during the research – while some people benefited from the company's outgrower scheme and employment and saw the LSLA as bringing "development", many people were affected by the destruction of common property resources and farmland, as well as the company's heavy use of pesticides. Power issues became highly visible, as benefits seemed to be distributed according to closeness and allegiance to the traditional authorities.
Furthermore, while the company claims to specifically help and empower women through its outgrower scheme and through the collection of left-over rice, these issues merit to be closely examined.
4.2. Description of the spatial and temporal boundaries of the case study
The GADCO investment is located in the South Tongu District. There are 5 traditional areas, which are at least partly located in the South Tongu district (boundaries of traditional areas and districts do not overlap). Most of the land GADCO has leased is located on the territory of the Fievie Traditional Area, while parts are however going onto Bakpa territory. The boundaries of the investment thus are the main boundaries of the research perimeter. For the purposes of this case study, 4 villages have been chosen for investigation according to the way they have been differently affected by the investment: Bakpa Adzani as a "migrant settlement" with no rights to land, but heavily affected by LSLA; Kpodzi and Kpevikpo, cattle herder settlements that have been partly surrounded by LSLA and heavily affected by loss of commons and spraying of pesticides; Fievie-Dugame, seat of the Fievie Paramouncy as the village that received most benefits from LSLA.
Local food systems are usually centred around a major market place. While the affected villages buy food in two markets, the most important one is located in Sogakope. Changes in the market have thus also been partly analyzed for this research.
Temporarily, this case study will look at the situation before GADCO arrived (t-1). There is no exact year/time that can be defined, as the context even before the arrival of GADCO has already been transformed by various outside interferences and the past will be largely reconstructed through the eyes of interviewees.
T0 marks the entrance of the investment in 2011. However, also the investment per see needs to be seen as a process, rather than a specified point in time. Through the various interviews and participant observation, the continuous implementation and expansion of the investment from 2011 to 2014 can be traced. Shortly after my field work, GADCO went bankrupt. Production was thus stalled for several months before a new investor took over operations in 2015. The period during which the investment was stalled has been analyzed by two MA students from University of Berne and a second field research in 2016 will look at changes that have been brought about by the new investor.
4.3. Independent variable: Institutions
The South Tongu District is located in the Volta Region of Ghana. The government is represented by the District Assembly (DA) headed by the District Chief Executive (DCE). It has as its main task to "see to the general decentralization of government policies from the national level to the local levels, which is done through the various decentralized and other centralized structures (Interview DCE)". The district is thus engaged in education, health, planning and agricultural development – the concrete implementation of policies is however often made difficult by a lack of funds and staff. The South Tongu District is furthermore divided into 40 electoral areas, who each have a representative at the DA. As in most countries, the majority of higher level district officials, as well as 39 out of the 40 local Assembly members are male.
Agricultural policies are mainly implemented through the District Directorate of Agriculture and its various extension officers, who offer trainings to local farmers and provide inputs at subsidized prices.
The government exercises its control with regards to land matters mainly through the Town and Country Planning Department, located in Sogakope, as well as through its regional agencies, such as the Lands Commission and Environmental Protection Agency, both located in Ho.
However, according to the District Chief Executive, most land developments take place without the knowledge of the Town and Country Planning Department, as it is heavily understaffed. Many land developments, such as roads, hospitals etc. are funded and executed by large international NGO's and UN or WB funded projects in collaboration with the government agencies.
Furthermore Fievie has been one of the pilot areas for the new LAP project. A Customary Land Secretariat has thus been established in Sogakope and the land belonging to the Fievie Traditional Area has been registered with the Lands Commission. While the aim of LAP is also to register and map individual land rights within the Fievie State, this has not been done so far.
4.3.1. Fievie and Bakpa Traditional Areas
Within the South Tongu District there are 5 traditional areas, who operate according to their own "traditional" rules and regulations and particularly regulate land access and use. The main traditional areas of interest for this dissertation are Fievie and Bakpa.
The Fievie traditional area is headed by a Paramount Chief and his Stool Father, who acts as his main advisor particularly regarding land matters. Both are highly educated and do not reside in the local area, but rather in Accra. At the state level, we also find a Paramount Queen Mother, in charge of "women's affairs" (i.e. settling quarrels between women, organizing women for communal work etc.). It is further divided into 4 divisions, headed by the 4 clan heads and their advisors (stoolfathers). These and the war leader (Awadada) of the Fievie State represent the traditional council of the Paramouncy, who is supposed to be consulted before any major decisions are taken.
The Traditional Area is made up of 57 villages, most of which are headed by a village chief or village head (53 in total), who are in charge of organizing village life, settling minor land and other disputes within the village, as well as general developments at village level. Furthermore most villages also have Queen Mothers and Youth Chiefs. It is important to note that the large majority of chiefs and elders are male, and Queen Mothers tend to have less powers, particularly with regards to land matters.
Bakpa Traditional Area is largely located in the North Tongu District. However, a severe flood in 1968 affected several communities within Bakpa, which led to their resettlement to South Tongu. Up to this day it is not clear, whether the land the resettled communities now occupy was given to them by Fievie Traditional Area or by Mafi Traditional Area. While Fievie claims to have provided the land for the Bakpa resettlement and thus sees the Bakpa people as mere "settlers" or "migrants" with no rights, some of the Bakpa people claim to have been given the land by the Mafi Traditional Area in the Central Tongu District, which is bordering on the Fievie Traditional Area.
Bakpa Traditional Area is structured along similar lines as Fievie with a Paramount Chief, his Secretary, 3 clans and several sub-chiefs.
Bakpa still practices the outlawed tradition of Trokosi, which implies that families who have committed a crime (i.e. stealing) have to provide a daughter to the local priest. Through this tradition, priests live outside the villages with several young girls, who are used as sex slaves, as well as free labour. These girls typically have no schooling and only have access to the land of the priests, with no individual rights to any piece of land. Bakpa people have also "sold" many children to work on fishing boats on the Volta lake, as well as in Northern Ghana. These are now being "rescued" by international NGO's and reintegrated into various Bakpa communities.
4.3.2. Customary land rights
Within the Fievie Paramouncy, clans and within them individual families thus control the use of large parcels of land and inherit it through the male line. They can exercise most of the rights usually associated with property ownership, apart of selling it. They, through the male head of the family, can decide on the use of the land, allocate it to family members or rent it out to landless people.
Within this general context of land insecurity for smallholder farmers and other land users, women are even more vulnerable to everyday dispossession of their land due to patrilineal inheritance practices and customs. While women can inherit land from their fathers, this land tends to revert back to the male line once a woman gets married. Upon marriage, their husband is supposed to allocate a piece of land to them. However, often these lands are small and of inferior quality. Upon death of the husband or divorce, the land always reverts to the husband's family. While in such cases, women may be able to retrieve access to a piece of their own family land, this is not always possible, as male family members may resist.
Even though the Intestate Succession Law would prohibit such land grabs from women, most women do not know about it and customary practices seem to override formal legislation.
Land users in Bakpa Traditional Area also derive access to land through chiefs and inherit it through the male line. However, because the original ownership of the land is not clear, land rights of Bakpa people are even more vulnerable, as the Fievie Traditional Area perceives them as settlers, who do not need to be consulted about any land leases or developments. In 2008, the Fievie Paramouncy has for the first time leased out large tracts of land used by Bakpa people to an Isreali Jatropha company. Since parts of the land were clearly on the territory of the Mafi traditional area, Mafi Traditional Area took Fievie to court and a litigation case is still pending to resolve who the rightful owners of the land are.
4.3.3. Common property resources
In many communities, people also "own" fishponds. These have been established by their forefathers and are now administered by the family head. In the rainy season, these fishponds flood and fish can be caught by anybody. In the dry season, when the main harvesting takes place, their use reverts back to the family. They can then be used by any family member in accordance with the rules established by the family head (i.e. he sets the dates for fishing). Fishponds are harvested by taking out the water and manually catching the fish hiding in the mud (mainly mudfish and eel). The harvest is then shared among the whole family and particularly the elders are given a quota.
Land used as commons, i.e. for the collection of fuel wood, wild fruits and cattle grazing, is also "owned" by individual families, but has been allocated to the community for specific purposes by the Paramountcy many decades ago. Families wishing to establish farms on this land thus have to first consult with the chiefs. However, no clear boundaries seem to exist for these lands, as cattle can also cross between different traditional areas. The main rule is that the cattle shall not destroy any crops.
4.4. Intermediary variable: Actors of the food system and their organization
For the case at hand it makes sense to distinguish between actors who "regulate" access to food system through implementing and interpreting the various statutory and customary rules and regulations, and those who depend on the local food system for their livelihoods. While the regulatory framework potentially includes actors at various levels (international, national, regional, local), only those active in the local context will be analysed in detail for this dissertation. Furthermore, so far mainly those directly affected by LSLA have been analysed and less those indirectly affected (i.e. traders, market women).
Frequent and important interactions are marked in bold.
Regulating Actors
Users of the food system
Regional Lands
Commission
National House
of Chiefs
Regional House
of Chiefs
Fievie
Trad. Area
Ministry of Food
and Agriculture
Ministry of Lands,
Forestry and Mines
Ministry of Environ‐
ment and Science
International donors
(i.e. World Bank)
GADCO (Company)
District Chief
Executive
Local Assembly
Members
Environmental
Protection Agency
District Direct.
of Agriculture
Members of
Parliament
Outgrowers
Small‐scale
farmers
Employees
Cattle owners
Women
Fishpond
users and
owners
Bakpa
Trad. Area
Fievie Trad. Area: The Fievie traditional area is one of 5 traditional areas in the South Tongu District. The leaders of the Fievie Traditional Area have provided the land for GADCO and are the company's main negotiation partners.
Bakpa Traditional Area: Bakpa Traditional Area is largely located in the North Tongu District, however several of the resettled communities are affected by the GADCO investment. They have not been informed or consulted about the LSLA and have thus engaged in armed resistance, which has led to some results. However, at the time of research, several conflicts between Fievie and Bakpa were visible, some relating to previous land acquisitions on Bakpa territory. Since the two traditional areas do not communicate, the only option for Bakpa to claim its rights is through state agencies and courts. However, they suspect that all relevant state actors have been bribed by Fievie and GADCO.
District Chief Executive: Has not been engaged in the process of land acquisition and complains about how the government is usually left out of land acquisition processes. However due to the heavy policy focus on private sector investments in the agricultural sector (FASDEP) has an interest in portraying GADCO as an example of how the district has provided an enabling environment to investors.
GADCO: The Ghana Agricultural Development Cooperation (GADCO), a company founded by a Nigerian investment banker, made up of a multi-national shareholder team and registered in the Netherlands, first came to the South Tongu District in 2011. While they have large outgrower operations on two government-owned irrigation schemes in the region, and also work with individual outgrowers in Hohoe, their operations in South Tongu are based around a 850 ha nucleus farm and 45 outgrowers working on the company's land. At the time of research, they were aiming to expand their outgrower operations to include an additional 120 outgrowers.
In total, the company had already leased app. 2000 ha of land directly from the Fievie authorities in exchange of an agreement that 2.5% of the company's sales go into a "community development fund" administered by the traditional authorities. The company went bankrupt shortly after the termination of my field research at the end of 2014. One of GADCO's suppliers (RMG Ghana Limited) took over operations in spring 2015. Only minor changes to the companies operations were made under new management.
Outgrowers: Only the outgrowers located in South Tongu near the plantation have been included in the research. At the time of the second research, they were 60. Most outgrowers came from Fievie-Dugame and were either part of the chieftancy structure or related to one of the chiefs or hailing from other locally important families. Most of them were thus already quite well off before engaging in outgrowing and some were paying poorer people to do the work for them. While most outgrowers were women, some of the men only signed up and send their wives to do the work.
Employees: GADCO employed approximately 150 people on the farm and 30 people in the rice mill. Only few workers had a permanent contract. Most were hired on temporary basis, with appointment letters rather than contracts or as casual labourers paid daily. Many of the rice mill employees came from Brasil (because the technology was imported from Brasil), while many of the Ghanaians came from Sogakope or other small cities. Some men came back from Accra specifically to work for the company. Women were only hired as casual labourers for the application of fertilizer, as well as cooks and cleaners. The main worry of all employees were low salaries. A labour union had recently been established and started negotiating with GADCO about salary increases.
Cattle owners: There are approximately 100 cattle owners within the Fievie Traditional Area with some owning up to 1000 cows. Almost all cattle owners are male and they are organized through a cattle owner association. All cattle owners live in an area that has been designated for cattle grazing by the Fievie Paramountcy. GADCO has acquired their grazing land in 2 waves. While the first wave, all cattle owners agreed to the lease since much land was left, the second was acquired against the will of cattle owners and many of the ponds (used by both animals and humans for drinking) were destroyed. At the time of research, the company was aiming to acquire most of the remaining land for cattle grazing to expand their outgrower scheme. This led to many community meetings and much resistance by cattle herders.
Fishpond owners: There are many fishpond owning families in various communities of the Fievie Traditional Area. For all of them, fish is a very important part of their diet and the fishponds also provide a good income-earning opportunity. All fishponds were destroyed by GADCO without compensation. This has led to much resistance by fishpond owners. Some people were able to adapt their livelihoods by fishing in GADCO canals (however only those who are able to swim and own the necessary gear).
Small-scale farmers: Most people in the area are small-scale farmers, with some medium-scale farmers. Almost all people (male and female) plant both cash and subsistence crops, sometimes using different plots (riverbasin and upland) for seasonal agriculture. Most depend more on their own production for food security, rather than on the market (even though all buy some food on the market). GADCO has destroyed many people's farmland with only little compensation. While most wealthier farmers received either compensation and/or were able to access outgrower positions, many of the poorer farmers had to either access another land from within their family (if possible), others had to engage in sharecropping or renting, while still others were left landless.
Women: Even though women are highly heterogeneous and their ability to benefit from the investment depends on other markers, such as age and social status, there are some similarities. Generally, women in the area have no access to formal employment, but are in charge of feeding their families (often with no support from their husbands). Therefore, they pursue diverse income earning strategies. Many women farm both on their husbands and their own plots and in addition engage in the collection and sale of firewood, trading and of course child care. This means that women generally have much longer working days than men and consequently more time constraints. While the general institutional context is highly discriminatory, i.e. access to resources, such as land, as well as decision-making is very restricted to women, there are large differences among women, i.e. some women belonging to powerful families may have access to large tracts of land and also be involved in decision-making processes. While there are many polygamous households, which tend to be rather hierarchical with the men as main decisionmakers, many younger couples are choosing monogamous marriages with some men also being involved in care responsibilities. There are also many female-headed household. Polygamy is still widespread in the area – most often men live with one of their wives, while his other wives are heading a separate household. While men are supposed to look after all their wives equally, many women in polygamous households receive no monetary benefits from their husbands and are thus in charge of feeding their own families. The fact that younger men often migrate or have no means to support their wives, has also led to many children being brought up by their grandmothers, as their mothers have no means to look after them. The area is thus characterized by a high number of female-headed households in charge of feeding their children and grandchildren.LSLA destroyed one of the main income-earning opportunities of poorer women – collection and sale of firewood, but offered new income-earning opportunities to some (outgrowing, rice picking).
4.5. Dependent variable: Description of the local food system
4.5.1. Food Production
The majority if the population is engaged in rainfed small-scale agriculture, growing traditional subsistence crops, such as maize and cassava, and to a lesser extent occro, beans and cowpeas. The areas cash crops are pepper and groundnuts, which are sold to traders, who come from as far as Togo and Benin. While pesticides (both chemical and organic) are used by a majority of farmers, the use of fertilizers is very low, due to the high soil fertility, which is maintained by the seasonality of the crops and consequent fallow periods.
Many people use the swampy riverbasin area to grow cash crops during the dry season (occro, cassava and tomatoes). The clayey soil is apparently particularly well suited for this type of agriculture.
While women often engage in both cash crop and subsistence crop production, men are more active in the production of cash crops. Men tend to have larger plots than women and often depend crucially on the labour of their wives and children. Women sometimes have to divide their time between farming on their husbands plots and cultivating their own plots (land which has been given to them for cultivation either by their husbands or their fathers). In other cases, women and men farm together on the same plot.
While cattle rearing is a male activity that is mostly done by better-off households, most households rear some small livestock (guinea fowls, pigs, goats, chicken). These are usually looked after by women and mainly kept as assets that can be sold to buffer stresses on the household, such as illness, droughts etc.
There are many man-made fishponds, which provide important resources to the local food system, as fish is a key ingredient of local diets and fish can also be sold to derive an income. Land used as commons also provides important resources to the local food system. Women collect fuel wood on the large areas of fallow land, which is then processed into charcoal, sold and used for cooking.
Many villages that have no running water and no easy access to the river and thus use small ponds, creek or dams to collect water for household use – an activity mainly done by women and small children.
4.5.2. Food Processing
Women are also in charge of food processing, which is mainly done at household level. The main processing activities are the processing of cassava into cassava dough or gari, as well as conservation activities (i.e. drying of maize, boiling of pepper). Processed food stuff are also sold locally or to female traders, who then sell the produce on the local market, or in some cases in regional, national or even international markets.
Particularly in Bakpa, local women use fruits from Baobab trees (growing wild) and process them into a local porridge.
4.5.3. Food Distribution
Trading and selling food is almost exclusively in women's hands, and tends to be portrayed as a "boring" task by men. Whether women are able or not to keep the money from trading and selling food stuffs, seems to depend on various factors, i.e. whether the produce was produced on their fields or their husbands, the amount of produce sold (i.e. only enough money generated for subsistence or more) whether they are the only wife or one of several wifes of the husband etc. A variety of constellations seem to exist at the local level, from husband and wife having a joint account, each having their individual account or the household having one account controlled by the husband.
There are two main market centres – Sogakope and Dabala – where people buy and sell food stuffs. People producing cash crops usually do not sell them directly on the market, but rather sell them to female traders, who sometimes go to several regional markets to sell their produce.
4.5.4. Food Consumption
Food security is high in the area, mainly due to the abundance of land and consequent ease of accessing new land for farming. The main staple crops, corn and cassava, are used to produce local meals such as Banku and Akple. Fish is eaten with every meal and many women report that they would rather not eat, than eat a meal without fish. Meat on the other hand is eaten rarely. The majority of households produces more food than they buy on the market and are thus more vulnerable to climatic shocks (i.e. droughts) rather than to market price fluctuations.
The general context in the case study area is one in which women are heavily engaged both in productive and reproductive activities, while men suffer from high unemployment. While most older men are still engaged in agriculture, many younger men are temporarily migrating to Accra or other areas, others are suffering from alcoholism.
4.6. Documentation of available data
The following methods were employed during fieldwork from March 2014 to August 2014:
a) Participant observation
b) 15 expert interviews
c) Two focus group discussions
d) 30 semi-structured interviews with participants from three villages that were chosen according to the different ways they had been affected by LSLA
The following methods were applied during the second field stay from April to July 2016.
a) Participant observation
b) 18 biographic interviews
c) 12 expert interviews
d) 3 focus group discussions
5. Analysis of the different phases of the LSLA process and its impacts
5.1. T-1 Situation
This chapter will show how the grip of the state on the local food system prior to LSLA was quite weak, as local people rely mainly on various customary institutions for their access to the food system. Women play an important role within the food system and pursue diverse income earning strategies, while men are mostly farmers or unemployed, with many youth leaving the area.
It will be highlighted how there are tensions within the customary system prior to LSLA and how the Land Administration Project (LAP) has actually served to strengthen the power of the Fievie customary authorities, who reinterpret the customary in a way to enable them to accumulate profits from land registration and sales.
Despite a changing environment, land was abundant at T-1 and food security high, with people producing more food than they have to purchase on the markets and generally having healthy and varied diets.
5.1.1. Institutional regime of the food system
The institutional regime of the food system is the same as outlined above (4.3) and is largely focused on the customary institutions regulating land use. The introduction of a CLS through LAP has given Fievie authorities more power. While the aim of LAP is also to register and map individual land rights within the Fievie State, this has not been done so far. Rather the Fievie Customary Authorities appear to use the increased recognition by the state in order to strengthen their position as "land owners" and negotiate directly with foreign investors. The claims to land that the Paramount Chief, his Stoolfather and the four clan heads have, have now also been formalized, as they are members of the Customary Land Secretariat. The establishment of a State Account under the auspices of the Customary Land Secretariat has helped the Paramouncy to increase its revenue collection, as any income from land leases flows directly into the state account. This revenue is largely used for land litigation cases against neighbouring traditional areas aimed at expanding the land area controlled by the Fievie traditional authorities.
In fact, it appeared that the customary authorities were able to use the establishment of the CLS strategically to completely change the structure of land governance in the area and increase their own power and control over land.
"They haven't formally told us this, but we go on visits and sometimes we talk to the community and they think that the chief is using the CLS to capture their land. It is like, the chief wanted to establish the CLS, so that all the family land would come under the CLS and he will have authority. Interview, LAP Representative, 12 March 2016"
At the same time, land sales by "land-owning families" have been increasing, despite the fact that customary rules forbid individual families the sale of land.
"The land is a communal land, and this idea of individuals owning the land was not there formally, but now it is creeping into them. People want to own the land, so that they can sell it. And we want to avoid that. That's why we told them, you don't own the land, you are just a licensee. (Interview Stoolfather, 24.5.14)"
However, the customary authorities have also managed to benefit from this by changing customary rules in a way that any family wishing to sell land, now needs to pay 1/3 of the proceeds into a state account.
"Under normal circumstances it is only the Fievie state that can convey, because it is a communal land, but that practice is coming under serious threat. People are challenging it. They are selling their land. And you cant be litigating with your citizens, so what we see is that, if a practice is under pressure, that practice is calling for a change. So you have to listen to the people. So what we do is that, if you want to convey, fine, do it, but come to the community – we have a Secretariat, so we are going to convey the land and give 2\3 to you, then the State takes 1/3. That money we use to manage the state (Interview Stoolfather, 24.5.14)."
5.1.2. Organization of the food system, decision-making, actors and strategies
Even prior to LSLA, there were conflicts between regulating actors of the food system. There is an ongoing conflict between Bakpa Traditional Area and Fievie Traditional Area, which erupted in 2008, when Fievie leased out large tracts of Bakpa land to an Israeli Jatropha company (see 4.3). Furthermore, in 2008, Fievie also provided land, which was partly on Bakpa territory to some Austrian investors to establish a large football academy. This led to ongoing conflict and demonstrations by Bakpa people, as the investors were also mining laterite in the area and in the process destroying Bakpa access roads.
Users of the food system pursue various strategies to guarantee their food security prior to LSLA (see 4.5).
5.1.3. Condition of the food system: Ability to guarantee food security
Land is still abundant in the area and food security rather high (see 4.5)
5.2. t-0 situation
This section will show up, how the company has used the customary system to acquire vast tracts of land and has in the process reshaped traditional institutions governing resource access. The strong links between the company and some of the Fievie Traditional Authorities will be highlighted, as well as the selective use of government policies. Strategies by government authorities to gain control over the investment will also be highlighted. Changes in the food system will be highlighted and local people's adaptation and resistance strategies outlined.
5.2.1. Institutional regime of the food system
Land privatization
GADCO has leased 2000 ha of land for 50 years from the Fievie traditional authorities (however only 850 ha were in use at the time of research). Even though it is a lease and not a sale, land that was previously subject to complex customary rules and regulations has effectively been privatized.
People, who continue ploughing their own land (which is not yet used by the company) are now doing this "illegally". GADCO furthermore enforces their property rights through the use of 15 regular security guards and 4 specialized armed guards (who do not have a licence to carry guns and thus once clashed with the police). Furthermore, whenever there is a problem (i.e. act of resistance, "illegal ploughing of land", GADCO provides a pick-up car to Fievie authorities, who mobilize and arm local to chase away offenders.
Traditional authorities seem to reinterpret their role in the community more and more as being the actual owners of the land, relegating people to be mere caretakers:
"It is just like, if you are growing up, your mother will give you a chicken, so you claim like it is your chicken, you'll be feeding it, looking after it, but the day of selling the chicken, your mother will not seek permission from you before selling the chicken. Or let's say they want to slaughter it to prepare soup for the family, they won't seek your permission. So, it's like you are just a caretaker. (Interview Stoolfather, 24.5.14)"
New commons
While the much of the commons have been privatized, new commons were also created by the company. After the company's first harvest, women started to collect the rice that was left behind by the company's harvesters. While the company decided to allow this practice, it is also regulated by the company, i.e. women are only allowed on the fields between 9 am and 4 pm. Furthermore, some people have started fishing in the GADCO canals – however, since the water is deep, people need to be able to swim and they also need nets. So far, this practice seems to be ignored by the company.
Outgrower scheme
The company itself is accessing money through the Ghana Agriculture Commercialization Project (GCAP) for the expansion of its outgrower scheme, which aims to strengthen smallholders access to markets and stipulates that at least 30% of outgrowers should be women. Unlike other contract farming schemes, which employ outgrowers on their own lands, the people engaged as outgrowers for GADCO continue farming their own land, while at the same time engaging in rice production on the company's land. Outgrowing thus represents a new institution in the local context.
5.2.2. Organization of the food system, decision-making, actors and strategies
The company has acquired land in several waves. A community meeting was called, and all people present (mainly from Fievie-Dugame) agreed that a piece of swamp land should be leased out to the company. With continuous expansions, the company took over lands previously used for cattle grazing, small-scale farming, as well as hosting many fishponds, and important common property resources, such as fuel wood, thatch grass and wild fruit trees. Community meetings were still held to inform local people about these expansions – however many people whose land has been appropriated by the company were not invited to these meetings and information about the ongoing acquistions seems to have been imparted only selectively. While some people have been clearly able to benefit from the investment, others have looked for strategies to adapt to the changing circumstance. Many people have also resisted the investment and several conflicts have been observed, both between those regulating the food system (i.e. traditional authorities, government authorities and GADCO), as well as among local land users and between local land users and regulating authorities.
Customary authorities as intermediaries
The initial agreement was made between the Paramount Chief, some sub-chiefs and the company, bypassing any government authorities. However, after a short period of time, a reshuffling occurred within the Fievie Traditional Area, as the Paramount Stoolfather felt left out of the agreement. He managed to halt the investment through abducting one of the company's operators and involving the District Chief Executive, who so far had not been informed of the investment.
With this new main partner, the initial 2.5% agreement was now officially signed in the presence of the District Chief Executive, several members of the District Assembly, as well as the Traditional Council.
„When they first came, they came to see the Paramount Chief and some chiefs from Agokpo and Sogakope. So, someone informed me that this company had come and I asked them, whether they have to inform me or not. They said that they had delegated someone to come and see me and I told them that this is not the proceeding, because I have to be at the forefront. So they said they would come to me, but because I did not assert myself, we held a meeting on Sunday and on Monday I heard that GADCO has entered the land. So, I delegated the youth to go and stop the project. And that day I came myself, so we went to stop them. So on a Wednesday we all agreed that Friday we meet in the community. But Thursday they defied my orders and went to the field again. So that day my boys went to hijack them. They took them to the community to report to the police. Because the DCE was also not aware, the police honour was also not aware of the coming of GADCO. So it was then that they knew that we were serious. So they called me, and I told them: What did I tell you? So the police honourable elected me and I told him all that transpired and then that Saturday we all came in the community. GADCO also came and we started renegotiating the agreement. (Interview Stoolfather, 24.5.14)"
According to the GADCO manager, the 2.5% deal has meant that the Customary Authorities now have a stake in the success of the company and are thus also actively engaged in maintaining the company's success and expanding its profits. All "community issues", such as choosing outgrowers, dealing with compensation claims and resistance are left to the customary authorities to deal with. Both parties confirmed that when there is resistance (i.e. illegal ploughing of land), the company provides a pick-up truck to the Fievie authorities and they mobilize and arm the youth to deal with the offenders.
Even though the government authorities have been largely sidelined by the investors, the district is keen to highlight its role in creating the enabling environment for GADCO to operate:
"We only need the more generic data for statistical purposes so we can use it to project that this district has created an enabling environment for GADCO at Fievie to produce 200 000 tonnes for the year and then the Brazillian company too may have produced so and so tones etc but we are not directly involved in the day-to-day administration of the project." (Interview DCE, 22.5.14)
Similarly, the District Director for Agriculture, appears keen to highlight his Ministry's role in the GADCO project and emphasizes that the "business strategy of GADCO is in line with MOFA's emphasis on value chains and with FASDEP as an inclusive business model linking smallholders to value chains". He stresses that his office is providing an enabling environment for GADCO through selling subsidized fertilizers, tractors and servicing their machines. However, he also maintains, that the district should try to establish land banks by acquiring land from the chiefs "so that when investors come, they would rather go to the assembly instead of going to the chiefs then the procedure becomes much easier (Interview District Director of Agriculture, 16.4.14)."
GADCO has received quite some positive press in Ghanaian media and the opening of the GADCO mill, several politicians held speeches (often however criticizing that the government had not been involved in the processes and needed to come on board) and even the vice President of Ghana pledged its support to the company.
"Community development account"
While the agreement that 2.5% of the company's sales should go into a community development account has received a lot of praise in the national and international media, most people interviewed did know what the money was used for.
While the money generated from the investment is supposed to be used for community development purposes, the company does not check whether this has really been the case and within the local communities, suspicions are rising, as to where the money is going to. One participant at a group discussion compared the situation to that of the Ashanti Kingdom: "You know that there is a lot of gold around, but you never see it." (Male PRA, 11.5.14)
Various customary authorities, including the Paramount Stoolfather, mentioned that a large part of the money is going into land litigation with adjoining traditional areas, i.e. the court case between Mafi and Fievie Traditional areas.
"GADCO is actually having a tremendous impact on that. Every month we take 2.5% from them and that is a lot – on the average it is about 15'000 GHC a month (app. 5000 CHF).. When it reaches 5%, that will amount to 30'000, and that depends on the size. If they increase, we will even be taking 40'000 GHC a month. It is a lot of money. We appreciate it. I am telling you, we appreciate it a lot. As a result now, you cant toy with us, because we can match you, we have the resources. They are actually helping us a lot, they are helping us. (…) The money is used for community development. And litigation is very expensive. People are litigating us over the land, and without resources you cant litigate. So with the help of GADCO, we are able to pay our legal fees without any challenge." (Interview Stoolfather, 24.5.14)"
Employment
At the time of research GADCO had leased 2000ha, of which only 850 ha were under production. The company operated a large-scale mechanized plantation and rice mill, which employed approximately 150 and 30 people respectively. Some men came back from Accra to get employment with the company. The majority of the company's employees are male, most often working on temporary basis and everybody complained about low wages. Workers have at the time of research founded a union and complained several times to the company about wages. Many former employees said that they were laid off for no reason and with short notice.
"What happened is that, working with GADCO, when you work for three months that they have to make you a permanent worker then they sack you, so most are made casual workers rather than permanent workers (Interview male employee,28.6.14)."
Women were mainly hired as low-paid casual labourers, mainly for the application of fertilizer, as cooks for the workers and as cleaners. The justification for this was that it is tedious work, which is better suited for women.
One women said she was run over by a tractor while working for GADCO – the company apparently did not pay for her hospitalization and as a result of the accident, she could not work again. Another man lost his eye sight on one eye due to a battery explosion at GADCO's pump station, where he was working. GADCO paid for his treatment, doubled his salary and gives him a free bag of rice every month.
Outgrowing
The company also employed 45 outgrowers on 45 ha of land. All outgrowers were selected by the chiefs and thus came mostly from Fievie-Dugame, the seat of the Paramountcy – often they were either related to one of the chiefs or came from other locally important families. While about half of the outgrowers were male and the other half female, several men who signed up for outgrowing actually send their wives to do the work.
At the time of the research, an additional lease of 120 ha for the integration of a further 120 outgrowers was negotiated, with 2/3 of the positions supposed to go to women, due to funding regulations from GCAP. This led to many conflicts, which will be discussed below.
Loss of land
While originally, the company's plantation was set up on swampy land, which local people used for fishponds and seasonal agriculture, it soon expanded to include large parts of land used for cattle grazing and the collection of fuel wood, as well as farmland used by both Bakpa and Fievie people.
In the process of establishing the plantation, all fishponds were destroyed and most of the trees used for fuel wood were uprooted.
Compensation
Compensation for loss of agricultural crops (not land!) was paid to some individuals – from interviews it appears that most of those claiming to have been compensated were either chiefs themselves or closely related to the chiefs or other important local people and almost all of them hail from Fievie-Dugame. No compensation has been paid for loss of fishponds or other resources. Many people have asked for compensation, but have been kept at bay with tactics of delaying (i.e. asked to see another person, come back another time).
No compensation has been paid for the loss of common property resources
Conflicts and resistance
The GADCO investment appears to have given rise to many intra-community conflicts, as some welcome the investment and see it as a way of "development" and others are concerned about the negative impacts.
Initially, there was much resistance, including armed resistance by some elders and sub-chiefs and several death threats were issued against the company's manager. Interestingly, all chiefs that I was told were initially against the investment, turned out to be the most fervent supporters during my interviews. Interestingly also, all of them were in the process of building a new house. It thus appears that all important people have been bribed to support the investment.
Furthermore, as has been highlighted above, many people from important local families have been given outgrower positions or employment and only important people seem to have received compensation.
Those people thus are very keen to highlight the potential of the investment, calling rice "the new gold of Fievie", while those who have lost access to land, fishponds and grazing land and have not received compensation complain about their losses.
"I don't know if I have even 1 cattle left. If your neighbours beard is burning, you should go and fetch water to put it out. This is the 10 th time that we meet on this project. The land we are talking about now is the major grazing field left for our animals, they go there from morning till evening. We have always gone there. The small portion that would be left, we cant even go there. And there is only one pond left, even we, Fievie-Dugame depend on that pond. I explained before, and we also met at another community, if things are like this, the project should not be allowed. Maybe we can get an alternative land. If we all go there to work and the project fails, we will be hungry. Only one project in another community is for this project, every one else here is against it. Some people should not be crying, so that others will be laughing (Elder at a community meeting, 18.5.14)."
Generally, people's first point of call to voice their grievances and demand compensation are the traditional authorities, as they are the main negotiation partners of GADCO.
"We also realized that it's only Stoolfather that can tell them something that they would do and we cannot tell them anything that they would take serious."(Interview male employee,28.6.14)
Particularly, people in Kpevikpo have been greatly affected by the aereal spraying of pesticides, as the company sprays some houses directly and apparently sometimes even sprays children on their way to school. Similarly, many water ponds have been destroyed or poisoned by the company and Kpevikpo remained with no access to water.
When traditional mechanisms of dispute settlement seemed to bring no results, many people went on to inform their local assembly members and also complained to the district directorate of agriculture or members of parliament. Particularly, the cattle herders have used various means to get their plight heard, amongst others local media.
"As we discussed yesterday, if they insist to take it, I will shout for the government of Ghana to hear because they are farmers and I am also a farmer. Do they want to come and destroy my farm? I will never agree. The animal industry is supported by government so I will try and tell them not to do it. The farmland was big and we gave them some but now, it is small so I will not agree. I have a lot of animals here so if I destroy all the land is it good?" (Interview with Kpodzi chief, 19.5.14)
However, as has been mentioned above, various government officials appear keen to portray GADCO as a best practice example and even the Vice President of Ghana pledged its support to the company. Furthermore, GADCO and also the traditional authorities have many good connections to political figures. Several people also suspected that GADCO was bribing relevant authorities. Therefore these initiatives have shown little results.
Some individual families have also engaged in court cases against the traditional authorities, but these are very expensive. Furthermore, the Stoolfather is a lawyer by profession and thus knows how to navigate the system very well.
Fishpond owners also have grouped together and decided to go against the will of their elders and engage in a court case against GADCO for lack of compensation
Everyday resistance
People, who have been deprived of their livelihoods, have also engaged in a number of forms of everyday resistance, i.e. putting up red tape around their farms to prevent GADCO from entering the land, stealing and destroying of machinery, or pulling out pegs that GADCO had placed to delineate their land, as well as „illegal ploughing" of fields not yet used by GADCO. In most of these cases, the customary authorities intervened by asking people to stop and if necessary threatening to take other measures, i.e. taking them to the police. Four members of the Fievie community were furthermore armed and given the task to patrol the fields at night and report anybody stealing. Illegal ploughing of land by Bakpa was often met with violence, as customary authorities armed local youth and send them to chase off offenders.
"This season when we were ploughing to plant our pepper, a mob from Fievie came and attacked us including our chief. They were in a KIA truck, came and heckled, buckled us out of the farm physically. A report was made to the Police and records are there to show. Some of us are thinking of the next line of action to take because when this was reported to the Adidome police, they told us that they were in court so they couldn't respond to the situation. (…) Their body language spoke for itself so we left and took the police form and went to the hospital, treated and discharged and it took them 11 days to take our statement. They took our numbers that they will call us and if they don't call us we shouldn't come down. They never called us until the 11 th day and we went only to be told that the commander isn't around and the CID too is busy so we should go and come the next day. So we went to give the report and ever since they kept inviting us but when we go Fievie people would not come. We are starting to think that the police has been bought by Fievie. (Interview with Secretary of the Bakpa Adzani Chief, 13.6.14)"
The situation of Bakpa settlers
When Bakpa first realized that their land was being ploughed again, a group of elders armed themselves and threatened to kill anybody who would come near. As a result the DCE`s and the Security Councils of South Tongu and Central Tongu were informed and called a meeting with Fievie, GADCO and Bakpa.
"We organized a joint District Security Council (DISEC) meeting to try settling the dispute and we came up with a proposal and brought on board agricultural valuation experts to come and value the crops destroyed so they pay compensation. GADCO came back and said the compensation was a bit too high for them but we told them the valuation was done by an individual expert so they have to pay." (Interview DCE, 22.5.14)
However agreements made at the meeting were not honoured and out of 29 affected people only 9 people received compensation.
The court case between Bakpa Adzani and Mafi against Fievie has also regained new attention. For the second time since 2008, Fievie has leased out land used by Bakpa people to a foreign investor, thus Bakpa Adzani have added the current lease to the original court case and are waiting for it to be resolved. They however fear that the Fievies have bribed the court, as the case continues to be delayed everytime they are supposed to meet.
Female resistance
Interestingly, no women appeared to be engaged in any resistance. This appears to have various reasons, which are mainly rooted in traditional notions of masculinity and femininity, as well as specific gender roles. On the one hand, most land belonged to men, so women can also not contest the loss of land. Furthermore, women tend to have less voice in the customary system and thus also less access to the traditional leader. Violence and direct confrontation are male strategies, or as one woman puts it: "Women are not having strength and it is the men that have
the power to go and face those people and resist in some way but we are weak, we cannot resist." (Focus Group Ricepickers, 16.3.15)
The most important reason however seems to be that women have found a way to adapt to the changing circumstances, which men due to prevalent notions of masculinity can not do – the picking of left-over rice from GADCO fields. This is used to supplement household food security and is also sold to traders or on the local market, thus providing women with an income. Whether or not it has actually empowered women and added to household food security will be discussed below.
"Initially we were so much afraid mainly because of the firewood they were destroying. A lot of our livelihoods depended on firewood at that time so we were so much afraid when they (the company) were destroying everything. But when they (the company) continued and we started picking the rice that was when we relaxed, and the fears went down."(Focus Group Rice pickers, 16.3.15)
5.2.3. Condition of the food system: Ability to guarantee food security
Since the investment first took off, the investors have continually acquired more land, previously used for cattle rearing, small-scale farming, fishing, as well as hosting important common property resources (i.e. fuel wood, thatching grass and wild fruits).
Decreased farming activities
Particularly farming in the riverbasin, where many people previously grew their cash crops, is no longer possible. For many households the LSLA has led to a reduction in or complete withdrawal from farming. This not only implies that an important source of income is missing, but also that these households are becoming more dependent on the market to guarantee their food security. Several households that were interviewed had sold all their livestock and were experiencing increased food insecurity. Others were accessing land through sharecropping or renting from those, who did not loose land.
Many employees and outgrowers also reported decreased farming activities (due to loss of land or due to time constraints) and consequently increased dependency on the market to buy food. However, unlike those who lost land and have not benefited in any way from the investment, most employees and outgrowers did not experience increases in food insecurity. In particular the outgrowers felt that LSLA had made them better off: before LSLA they were dependent on rainfall for their own agriculture and only had two harvests a year, now they can get 3 harvests a year, earn more and be less dependent on the weather (however most outgrowers were previously already well off).
Furthermore, many local people were concerned about GADCO's heavy use of fertilizers and lacking fallow periods, as they fear that the soil will lose its fertility and they will be unable to use it once the company leaves.
Pesticides are not only affecting people's and animal's health, but many people claim that their vegetable nurseries have been destroyed by the pesticides.
Disappearing commons and its effects
As most grazing lands have been leased by the company, cattle rearing is slowly becoming unviable. Many people had to sell their cattle, others were still grazing in on the small grazing land left, which is leading to increased degradation of those lands
Furthermore, the company has destroyed many ponds, creeks and dams used for drinking water and most of the remaining ones are poisoned by pesticides. This implies that people are either drinking dirty water, women have to walk further to collect water or water needs to be bought.
The destruction of trees not only makes fuel wood/charcoal selling an unviable activity, it also leads to the destruction of remaining trees, as women cut them down for fuel wood.
Furthermore, the destruction of fish ponds has translated into fish now having to be bought on the market. This is a very important aspect, since fish is a crucial part of the local diet.
„We used to catch fish and get firewood from there. Our forefathers dug ponds in the water logs and fishes remain in them when the water dries up but all these things were destroyed and now we buy even firewood for cooking (Interview woman, who lost land, 14.6.14)"
Increasing consumption of rice
Another effect the LSLA has had is that there is now more rice in the local food system and rice has become more affordable to many families.
After-harvest rice picking now attracts hundreds of women of all ages, some coming from villages as far as 20 km away. The majority of women, who engage in this practice use some of the rice for cooking and sell some to rice traders, who process it at a local mill operated that has sprung up as a result of this practice.
"The presence of GADCO is source of food and income as some of us could go pick rice in order to cook and eat and even sell some to get income. So the company being here is helpful (Female outgrower at PRA workshop, 4.5.14)".
"The rice picking has helped, my struggling has also reduced. When GADCO was not here, I was always thinking in the afternoon where to get the food from to cook, but no I don't need to worry again (Interview with female outgrower, 6.6.14)."
A change in consumption patterns is also visible, as many people report eating less of their traditional food stuffs and eating more rice. Some people also substitute the lacking fish with rice, making the diets more unhealthy.
"Sometimes we would not like to eat rice but we don't have the food we want, so we would just take the rice like that." (Interview male employee, 8.6.14)
"Since they have destroyed our fish ponds, we don't have fish to add to the banku to eat at all time so we used the rice to supplement our diet." (Focus Group rice pickers, 16.3.15)
The income women derive from after-harvest rice picking is also often used for food items. While some women claim that they have to give all the money to their husbands, others keep parts of it to themselves.
"Yes sometimes we use our money to buy the fish but when it reaches the critical time we were having the money but we tell our husbands we do not have money and we keep it for our personal use" (Focus Group Rice Pickers, 16.3.15)
However, it is important to note that many women cannot engage in after-harvest rice picking (i.e. because of physical or time constraints) and the fact that hundreds of women do it, means that many women only get very little rice in exchange for very strenuous work.
While those household affected by loss of land and other resources and not able to access any new income-earning opportunities report decreases in food security, many people claim that food security has remained the same. What appears to have changed for most people is their increased dependence on the local market to buy food, as well as their changed consumption patterns.
6. Diachronic comparative analysis of the case at t-1 and t0, including predictions for t+1
6.1. Comparison
Increased conflicts are visible at the local level. Conflicts are situated at various levels:
- between regulatory authorities, i.e. between state and customary authorities, between different traditional areas, between GADCO and the state
- between local land users, i.e. between those profiting from the investment and those loosing out
- between local land users and regulating authorities (i.e. between local land users and GADCO, between local land users and traditional authorities)
Fievie Customary Authorities appear to be the main winners in the scenario, as they are dividing most of the profits from the investment among themselves and use them to engage in land litigation to get access to more land (to be leased out to investors). The Land Administration Project, as well as the fact that state authorities are also very keen to provide an enabling environment to investors appears to strengthen their position.
However, government authorities are also devising solutions to "get a piece of the pie" and reduce the power of chiefs. Furthermore, chiefs seem to be loosing some of their legitimacy at the local level, as they appear to act more and more autocratic.
While most local people try to use traditional mechanisms of dispute settlement first, when these fail, they usually turn to state authorities. However, so far this seems to have brought only few results, as there are varied connections between chiefs and the government and state authorities are also keen to portray GADCO as best practice.
Customary authorities, state authorities and the company itself portray the investment as development and modernity and in particular the customary authorities appear keen to describe traditional practices as backwards.
"If you are able to cultivate 1 ha for GADCO, you can make 4000 Cedis, from maize you cannot do that. So this is a good initiative, as compared to the cow business, with which you cannot make as much money. So the cattle owners should release their land to this more profitable business and move to more profitable occupations." (Stoolfather at Community meeting, 11.5.14)
"They are purely subsistence farmers occupied with survival. Its rainfed, so its risky business. And then the cattle, is at the mercy of the weather like the farming. So we decided to help them." (Interview Stoolfather, 24.5.14)
Both the customary authorities and the investors also portray the investment as helping women (more women involved in outgrower scheme, after-harvest rice picking helps food security).Women are thus instrumentalized by investors and chiefs to promote "sustainability of the investment. However, many livelihood strategies of women were destroyed and outgrowing benefits mainly those women close to chiefs. While most women engaged in after-harvest rice picking acknowledge that it has helped them to feed their families and in many cases also to derive an income, whether it can really empower women in the long term is highly questionable, as the bankruptcy of GADCO has shown.
"There are lots of risks in picking the rice like the sunshine scorching us so hardly and sometimes we meet snakes whilst we were picking rice and all that but as they (GADCO) have destroyed everything that is our last resort we could turn to. We keep on picking the rice to compensate our losses but it is just unfortunate that they have stopped farming and we do not have any other source of compensation to our losses now. " (Focus Group Discussion Rice Pickers, 16.3.15)
The GADCO investment also seems to have led to increased land scarcity and people who have lost access to farmland now often have to resort to sharecropping or renting land from other families.
It also appears to have led to increased land degradation, particularly of grazing land, as the small area left is now overused.
People generally appear to be more dependent on the market to buy food, particularly fish and also fuel wood, water, which makes them more vulnerable to market price fluctuations. While rice was previously hardly ever eaten, it has quickly become a staple food and even seems to partly replace traditional foods, such as Akple and Banku.
6.2. Prediction
GADCO has already failed and has been succeeded by a new investor in spring 2015. The company has plans to expand its outgrower scheme, which could potentially benefit more people.
However, land for the new outgrower scheme is located on Bakpa territory, which may lead to an escalation of the conflict between Bakpa and Fievie, unless the company or the government mediates between the two traditional areas and finds a solution acceptable to all.
Furthermore, the vision of the Stoolfather is to get access to more land through litigation with neighbouring traditional areas and invite more investors to come in. His vision is to stop farming traditional crops and stop herding cattle, but rather everybody should be growing rice:
"Let me tell you, we don't see the wisdom of continuing with the traditional crops again. Because when you look at the use of rice as compared to them, the profit is more. (…) The cattle too, a whole year, you may not even sell 1 cow. They have that attachment to it, because they are cattle owners, but they are suffering. But lets say if everybody has a hectare of rice, in 5 years when you come, you will see that their life will transform tremendously."(Interview Stoolfather, 24.5.14)
His vision may not be completely unrealistic, as at the time of research one Indian and one British- Bangladeshi company were in the process of acquiring vast tracts of land for rice production (apparently not from Fievie, even though Fievie claim it is also their land).
As GADCO (a so-called "best practice" example), as well as Galten, the abandoned Israeli Jatropha company on Bakpa land have demonstrated, companies come and go and are often just in business to get a quick profit.
Once the people who have taken over from GADCO give up, the land in the traditional area may already be depleted from heavy use of fertilizers and pesticides and the opportunities the company has provided will be lost, leading to instability in food supplies.
"They have destroyed everything and uprooted the trees with their stumps so the trees are not able to grow again even as they have stopped their operations to get firewood or other resources from the land again." (Focus Group Rice Pickers, 16.3.15)
In the meantime, local people who have lost parts of their livelihoods will continue fighting for their rights and possibly achieve small gains, i.e. compensation for lost fishponds, construction of a road to Kpevikpo, prior notification before spraying etc.
Even though, the profit-oriented mind-frame of investors and the self-serving behavior of political and customary elites makes it's fulfilment unlikely, I would like to end with the wish of a local ex-employee of the company:
"Since they are coming to work with human beings, whatever they do, they should do it in such a way that it wouldn't spoil anything and when we complain they should also take us seriously." (Interview with male employee, 28.6.14)
7. Conclusion: Discussion of the research hypothesis
H1. LSLA are a form of unilateral appropriation of the food system; as such they have a negative impact on food security
The case study can partly confirm this hypothesis, as investors have had a massive influence over the food system. Their influence has come through a) the appropriation of large tracts of land, which were previously regulated through a variety of localized customary institutions and hosted many important resources for the local food system (farm land, water, fishponds, grazing land, fuel wood); b) the provision of few outgrowing and employment positions, which have allowed people to buffer any negative effects of the investment and to derive benefits; c) the introduction of rice, which has led to changing consumption patterns and new opportunities to generate income for some.
While particularly, the enclosure of land and destruction of many resources has had negative consequences for the food security of many households, there is no conclusive evidence that food security in the whole region has reduced. What is more clearly visible is that most households report increased market dependency for their food consumption (which partly comes with decreased quality of food), as well as changed consumption patterns (reduced fish consumption, reduced consumption of other traditional food stuffs and increased rice consumption).
H1.1 The private-law nature of LSLA leads to an impoverishment of democratic decision-making procedures (less transparency and accountability) in the management of the food-system resource (production, processing, distribution, consuming). Actors develop strategies to counterbalance this loss.
The Fievie Traditional Area is proud of its democratic decision-making system – i.e. most community issues are discussed during community meetings in which everybody can have their say. I have personally attended many of these meetings and was initially impressed at how openly everybody could voice their concerns, provide solutions to problems etc. However it soon became clear that all decisions had already been taken by the customary leaders together with GADCO and many people felt disillusioned by the customary system (i.e. many people did not attend meetings anymore). While I do not have any information on how well the system worked before, it appears that the LSLA has led to an impoverishment of democratic decision-making structures. Rice is portrayed as the "crop of the future" and all people are supposed to engage in rice picking, while cattle rearing, picking of fuel wood and even farming traditional crops is portrayed as backwards and in need to be eradicated in order to make way for profit accumulation through rice production.
However, it has to be noted that while decision-making appeared democratic within the Fievie Traditional Area, Bakpa people, who are heavily affected by decisions (even prior to this specific LSLA) are by default left out of decision-making, due to their status as settlers/migrants. Similarly, state authorities appear to be generally left out of any decisions affecting community issues. They mainly become involved when there is conflict.
The various adaptation and resistance strategies local people have developed have been described above.
H1.2 Contract-farming arrangements represent an alternative form of LSLA which can lead to "win-win situ-ations" for both investors and local people regarding management of the foodsystem resource in comparison with "classical" LSLA because food producers retain a greater control over the resource, which leads to increased food security.
The type of contract farming GADCO uses differs from conventional contract farming schemes, since outgrowers work on the company's land, rather than on their own land. Nevertheless, it (at least in the short term) appears as a win-win scenario. Outgrowers receive (comparatively) high prices for their harvest and can at the same time continue to work on their own farms, while the company has much lower production costs (no mechanization) and much higher yields. However, while the arrangement benefits the outgrowers and most of them do report either higher or similar levels of food security as before, the land they are using has been taken away from other users, who consequently suffer. Furthermore, outgrowers had only had 2 harvests at the time of research and are heavily dependent on the company to buy the harvest (which became a problem during my field stay, as the company had problems with their harvesters), as well as on the information the company provides (regarding prices, quantities etc.).
The research also found that since the selection of outgrowers was done by local chiefs, most of the outgrowers were related to the chiefs or held other important positions in the community. Rather than benefiting the most vulnerable members of the community, the outgrower scheme just served as additional employment for many already wealthy individuals.
H2. LSLA have a differential impact on men and women; considering women's role in the food system, they suffer proportionally more than men from the impacts of LSLA on the food system.
The resources women and men were using prior to LSLA are partly different, as are the roles they play in the food system. While both women and men were affected by the loss of land and fishponds, men suffered more from the loss of grazing land and women from the loss of fuel wood. Women are also bound to be more affected by destruction of water sources, as they need to walk further to get water and women in Kpevikpo were also specifically affected by the destruction of the road (as they could not go to the market anymore during rainy seasons and whenever GADCO irrigated their fields).
However, after-harvest rice picking appeared as a new income earning opportunity for women (replacing the sale of fuel wood), as well as an opportunity to get some food for their families. Furthermore, some women also benefited from the integration into the outgrower scheme (even though at the time of research this only applied to few women, most of them already better off). While it is not clear how much these activities really led to an empowerment of women (as some women had to give any income to their husbands and suffered from increased time burden), most women did agree that outgrowing and after-harvest rice picking were beneficial for them.
The main way for men to offset any losses would be outgrowing and employment, but these only benefit a small number of men (and most of the better paid jobs at GADCO were given to people from Sogakope, who have not lost anything to the investment). Other strategies include migration, as well as resistance to the investment.
Both men and women also try accessing new land through sharecropping arrangements or rentals.
While in the short term, the hypothesis cannot be confirmed, in the long term (if after-harvest rice picking is no longer an option) women are bound to bear the brunt of the changed environment, as they will have to find new ways to guarantee their families food security.
The main people benefiting from the investment are those men (and few women) close to the chiefs.
2.1. Because women tend to be in charge of subsistence-oriented food production and preparation, actors' networks and organizations where women are involved are expected to be more considerate with the sustainable management of the food system resource.
There were no major women's organisations or movements in the area and women did not engage in resistance against the appropriation of land and resources.
2.2. The food system resource is expected to be sustainably and equitably managed, i.e. provide greater food security, if no user of the resources can impose oneself unilaterally in front of the others without agreed compensation.
This appears to be true, since prior to LSLA, various resource uses were managed through a variety of local institutions. Various resource uses were able to co-exist side by side, i.e. smallscale farming, cattle rearing, collection of fuel wood, fishponds etc. Minor conflicts tended to be settled through customary dispute settlement mechanisms. The only major conflict appears to have been between Bakpa and Fievie, as Bakpa people are considered by Fievie to be migrants with no rights to the land, who thus do not need to be informed about or compensated for any land losses.
LSLA has led to a situation in which GADCO and some Fievie chiefs are able to impose their own rules on all resource users and unilaterally decide who will get compensated and who not and how institutions are to be adapted.
8. Bibliography
Amanor, K. S. (1999) 'Global restructuring and land rights in Ghana. Forest food chains, timber and rural livelihoods'. Uppsala: Nordiska Africa Institute.
Aha Cashnoba, B. (2013). The Land Title Registration Law: A Panacea To The Land Registration Problems In Ghana? Modern Ghana, available: https://www.modernghana.com/news/466968/1/the-land-title-registration-law-a-panacea.html
Alden Wily, L., Hammond, D., 2001. Land security and the poor in Ghana. Is there a way forward? A land sector scoping study. DFID, London.
Apter, D.E. (1972). Ghana in transition. Princeton, New Jersey: Princeton University Press.
Berry, Sara. 1993. No condition is permanent: The social dynamics of agrarian change in subSaharan Africa. Madison, Wisconsin: The University of Wisconsin Press.
Boone, C. (2003). Political topographies of the African state. Territorial authority and institutional choice. Cambridge: Cambridge University Press.
Hofmann, B.D. and K.M. Metzroth (2010). The political economy of decentralization in Ghana. World Bank, Washington
Jones-Casey, Kelsey and Anna Knox. Ghana: Land Administration at a Crossroads. Policy Brief. Focus on Land in Africa. 2011.
Kasanga, R. K. and N.A. Kotey (2001) 'Land management in Ghana: Building on tradition and modernity'. London: IIED.
Mamdani, M. (1996) Citizen and Subject: Contemporary Africa and the legacy of late colonialism. Princeton, New Jersey: Princeton University Press.
Toulmin, C. (2009) 'Securing land and property rights in sub-Saharan Africa: The role of local institutions', Land Use Policy 26 (1), pp.10-19
Yeboah, E. and D.P. Shaw (2013). ‚Customary land tenure practices in Ghana: examining the International Development Planning Review 35
relationship with land-use planning delivery', (1)
Schoneveld, G., L. A. German and E. Nutakor (2011) 'Land-based Investments for Rural Development? A Grounded Analysis of the Local Impacts of Biofuel Feedstock Plantations in Ghana', Ecology & Society 16 (4).
Spichiger, R. and P. Stacey (2014). 'Ghana Land Reform and Gender Equality'. DIIS (Danish Institute for International Studies), Copenhagen
Tsikata, D. and J. Yaro (2011) 'Land market liberalization and trans-national commercial land deals in Ghana since the 1990s'. Paper presented at the International Conference on Global Land Grabbing, Brighton (6-8 April).
Ubink, J. M. and J. F. Quan (2008) 'How to combine tradition and modernity? Regulating customary land management in Ghana', Land use policy 25 (2): 198–213.
World Food Programme (2009). Ghana Comprehensive Food Security and Poverty Analysis. WFP, Rome.
Quaye, W. et al. (2010). 'Globalization vs. localization: global food challenges and local solutions', International Journal of consumer Studies 24(3), pp.357-366.
|
3COM CORP Form SC 13G February 14, 2008
UNITED STATES SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549
SCHEDULE 13G (Rule 13d-102)
Information Statement Pursuant to Rules 13d-1 and 13d-2 Under the Securities Exchange Act of 1934 (Amendment No. )*
3Com Corporation
(Name of Issuer)
Common Stock, $0.01 par value
(Title of Class of Securities)
885535104 (CUSIP Number)
There is No Date of Event Requiring This Filing. The Reporting Persons are Switching from a Schedule 13D Filer to a Schedule 13G Filer.
Date of Event Which Requires Filing of the Statement
Check the appropriate box to designate the rule pursuant to which this Schedule is filed:
o
Rule 13d-1(b)
x
Rule 13d-1(c)
o
Rule 13d-1(d)
*The remainder of this cover page shall be filled out for a reporting person's initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of
1
Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
Page 1 of 13
| 1. | NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Citadel Investment Group, L.L.C. | | |
|---|---|---|---|
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) x (b) o | | |
| 3. | SEC USE ONLY | | |
| 4. | CITIZENSHIP OR PLACE OF ORGANIZATION Delaware limited liability company | | |
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | | 5. | SOLE VOTING POWER 0 |
| | | 6. | SHARED VOTING POWER 38,521,187 shares |
| | | 7. | SOLE DISPOSITIVE POWER 0 |
| | | 8. | SHARED DISPOSITIVE POWER See Row 6 above. |
| 9. | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON See Row 6 above. | | |
| 10. | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES o | | |
| 11. | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) Approximately 9.6% as of the date of this filing1 | | |
| 12. | TYPE OF REPORTING PERSON OO; HC | | |
___________________________________
1 Based on 402,207,736 outstanding shares of the Common Stock of Issuer, as reported in the Issuer's Quarterly Report on Form 10-Q for the period ended November 30, 2007, as filed with the Securities and Exchange Commission on January 9, 2008.
| 1. | |
|---|---|
| 2. | |
| 3. | |
| 4. | |
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 5. |
| | 6. |
| | 7. |
| | 8. |
| 9. | |
| 10. | |
| 11. | |
| 12. | |
__________________________________
2
See footnote 1 above.
5
| 1. | NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Citadel Limited Partnership | | |
|---|---|---|---|
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) x (b) o | | |
| 3. | SEC USE ONLY | | |
| 4. | CITIZENSHIP OR PLACE OF ORGANIZATION Delaware limited partnership | | |
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | | 5. | SOLE VOTING POWER 0 |
| | | 6. | SHARED VOTING POWER 38,521,187 shares |
| | | 7. | SOLE DISPOSITIVE POWER 0 |
| | | 8. | SHARED DISPOSITIVE POWER See Row 6 above. |
| 9. | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON See Row 6 above. | | |
| 10. | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES o | | |
| 11. | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) Approximately 9.6% as of the date of this filing3 | | |
| 12. | TYPE OF REPORTING PERSON PN; HC | | |
_____________________________________
3
See footnote 1 above.
| 1. | |
|---|---|
| 2. | |
| 3. | |
| 4. | |
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 5. |
| | 6. |
| | 7. |
| | 8. |
| 9. | |
| 10. | |
| 11. | |
| 12. | |
____________________________________
4
See footnote 1 above.
| 1. | NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON Citadel Holdings I LP | | |
|---|---|---|---|
| 2. | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) x (b) o | | |
| 3. | SEC USE ONLY | | |
| 4. | CITIZENSHIP OR PLACE OF ORGANIZATION Delaware limited partnership | | |
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | | 5. | SOLE VOTING POWER 0 |
| | | 6. | SHARED VOTING POWER 38,521,187 shares |
| | | 7. | SOLE DISPOSITIVE POWER 0 |
| | | 8. | SHARED DISPOSITIVE POWER See Row 6 above. |
| 9. | AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON See Row 6 above. | | |
| 10. | CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (9) EXCLUDES CERTAIN SHARES o | | |
| 11. | PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (9) Approximately 9.6% as of the date of this filing5 | | |
| 12. | TYPE OF REPORTING PERSON PN; HC | | |
________________________
5 See footnote 1 above.
| 1. | |
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| 2. | |
| 3. | |
| 4. | |
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 5. |
| | 6. |
| | 7. |
| | 8. |
| 9. | |
| 10. | |
| 11. | |
| 12. | |
______________________
6 See footnote 1 above.
| 1. | |
|---|---|
| 2. | |
| 3. | |
| 4. | |
| NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH | 5. |
| | 6. |
| | 7. |
| | 8. |
| 9. | |
| 10. | |
| 11. | |
| 12. | |
_________________________
7
See footnote 1 above.
350 Campus Drive Marlborough, MA 01752
Item 2(a)
Name of Person Filing 8 Address of Principal Business Office Citizenship
Item 2(b)
Item 2(c)
Citadel Investment Group, L.L.C.
131 S. Dearborn Street 32nd Floor Chicago, Illinois 60603 Delaware limited liability company
Citadel Investment Group II, L.L.C. 131 S. Dearborn Street 32nd Floor Chicago, Illinois 60603 Delaware limited liability company
Citadel Limited Partnership 131 S. Dearborn Street 32nd Floor Chicago, Illinois 60603 Delaware limited partnership
Kenneth Griffin 131 S. Dearborn Street 32nd Floor Chicago, Illinois 60603 U.S. Citizen
Citadel Holdings I LP c/o Citadel Investment Group II, L.L.C. 131 S. Dearborn Street 32nd Floor Chicago, Illinois 60603 Delaware limited partnership
________________________
8 Citadel Holdings Ltd., a Cayman Islands company ("CH"), is majority owned by Citadel Kensington Global Strategies Fund Ltd., a Bermuda company ("CKGSF"). Citadel Equity Fund Ltd. ("CEF") is a subsidiary of CH. CKGSF and CH do not have control over the voting or disposition of securities held by CEF. Citadel Derivatives Group LLC ("CDG") is majority owned by Citadel Derivatives Group Investors, LLC, a Delaware limited liability company ("CDGI"). CDGI does not have control over the voting or disposition of securities held by CDG.
Citadel Equity Fund Ltd. c/o Citadel Investment Group, L.L.C. 131 S. Dearborn Street 32nd Floor Chicago, Illinois 60603 Cayman Islands company
Citadel Derivatives Group LLC c/o Citadel Investment Group II, L.L.C. 131 S. Dearborn Street 32nd Floor Chicago, Illinois 60603 Delaware limited liability company
2(d)
Title of Class of Securities:
Common Stock, par value $0.01.
2(e)
CUSIP Number: 885535104
Item 3 If this statement is filed pursuant to Rules 13d-1(b), or 13d-2(b) or (c), check whether the person filing is a:
(a)
[__] Broker or dealer registered under Section 15 of the Exchange Act;
(b)
[__]
Bank as defined in Section 3(a)(6) of the Exchange Act;
(c)
[__]
Insurance company as defined in Section 3(a)(19) of the Exchange Act;
(d)
[__] Investment company registered under Section 8 of the Investment Company Act;
(e)
[__] An investment adviser in accordance with Rule 13d-1(b)(1)(ii)(E);
(f) [__] An employee benefit plan or endowment fund in accordance with Rule 13d-1(b)(1)(ii)(F);
(g) [__] A parent holding company or control person in accordance with Rule 13d-1(b)(1)(ii)(G);
(h)
[__] A savings association as defined in Section 3(b) of the Federal Deposit Insurance Act;
(i)[__]A church plan that is excluded from the definition of an investment company under Section 3(c)(14) of the Investment Company Act;
(j)
[__] Group, in accordance with Rule 13d-1(b)(1)(ii)(J).
If this statement is filed pursuant to Rule 13d-1(c), check this box. x
Item 4
Ownership:
CITADEL INVESTMENT GROUP, L.L.C.
CITADEL INVESTMENT GROUP II, L.L.C.
CITADEL LIMITED PARTNERSHIP
KENNETH GRIFFIN
CITADEL HOLDINGS I LP
CITADEL EQUITY FUND LTD.
CITADEL DERIVATIVES GROUP LLC
(a)
Amount beneficially owned:
38,521,187 shares
(b)
Percent of Class:
Approximately 9.6% as of the date of this filing 9
(c)
Number of shares as to which such person has:
(i)
sole power to vote or to direct the vote:
0
(ii)
shared power to vote or to direct the vote:
See Item 4(a) above.
(iii)
sole power to dispose or to direct the disposition of:
0
(iv)
shared power to dispose or to direct the disposition of:
See Item 4(a) above.
Item 5
Ownership of Five Percent or Less of a Class:
Not Applicable.
Item 6
Ownership of More than Five Percent on Behalf of Another Person:
Not Applicable.
I t e m 7 Identification and Classification of the Subsidiary which Acquired the Security Being Reported on by the Parent Holding Company:
_________________________
9 See footnote 1 above.
Page 11 of 13
See Item 2 above.
Item 8
Identification and Classification of Members of the Group:
Not Applicable.
Item 9
Notice of Dissolution of Group:
Not Applicable.
Item 10
Certification:
By signing below I certify that, to the best of my knowledge and belief, the securities referred to above were not acquired and are not held for the purpose of or with the effect of changing or influencing the control of the issuer of the securities and were not acquired and are not held in connection with or as a participant in any transaction having that purpose or effect.
John C. Nagel is signing on behalf of Kenneth Griffin as attorney-in-fact pursuant to a power of attorney previously filed with the Securities and Exchange Commission on February 24, 2006, and hereby incorporated by reference herein. The power of attorney was filed as an attachment to a filing by Citadel Limited Partnership on Schedule 13G for Morgans Hotel Group Co.
Page 12 of 13
After reasonable inquiry and to the best of its knowledge and belief, the undersigned certify that the information set forth in this statement is true, complete and correct.
Dated this 14th day of February, 2008.
Page 13 of 13
|
ALBERT EINSTEIN COLLEGE of MEDICINE of YESHIVA UNIVRESITY
DEPARTMENT of ENVIRONMENTAL HEALTH and SAFETY
ASBESTOS AWARENESS TRAINING
Substance: Asbestos
CAS Registry Number: 1332-21-4
Synonyms: chrysotile, amosite (cummingtonite-grunerite), actinolite, actinolite Asbestos, anthrophylite, brown Asbestos, mysorite, avibest C, cassiar AK, calidria RG 144, calidria RGG600, serpentine, white Asbestos, blue Asbestos, crocidolite, tremolite, tremolite Asbestos.
Description: Asbestos is a term used to describe a group of 6 naturally occurring minerals with needle like structures that are greater than or equal to 5 microns in length and have a length to width ratio greater than or equal to 3. Asbestos looks fibrous in form, is often white and has no smell or immediate health effects. Asbestos fibers are resistant to most chemicals, are fire proof and very strong. These same qualities that make Asbestos useful for industry make it a severe health hazard. Asbestos is an airborne hazard. It can enter the body through inhalation. Asbestos fibers can penetrate deep into the lungs' air sacks where its needle-like structure, combined with its physical and chemical resistance, can cause scarring of the lung tissue and various forms of cancer. Asbestos has been used in many products and is currently in use today. It has been used in products such as brake lining, laboratory bench tops, pipe insulation, floor tiles, and mastic. Asbestos has a long history in civilization. People have used Asbestos since Roman times, but during the 19 th Century, production increased exponentially. By the late 1960s, Asbestos was used in various building materials for most construction.
Asbestos is non-flammable and non-reactive. Acute exposure to Asbestos, which is a large exposure for a short period of time, can, in some very rare cases, lead to mesothelioma, but has no other effects. Chronic exposure, which is low exposure for prolonged periods, can result in a variety of diseases including Asbestosis, lung cancer, mesothelioma, pleural scarring and cancer of various organs in the digestive track.
In addition, smoking and Asbestos exposure can increase the risk of developing lung cancer by up to 90 times. Although most of the diseases associated with Asbestos exposure show a dose response relationship, mesothelioma can be contracted after even a very short exposure. There is a latency period for lung cancer and mesothelioma of up to 30 years. The latency period is the time between exposure and the onsite of the disease.
Employee exposure to Asbestos must be below the Permissible Exposure Limit set by the Occupational Safety and Health Administration (OSHA) of 0.1 fiber per cubic centimeter of air (0.1 f/cc) over an 8-hour time weighted average (TWA). Asbestos workers may also not exceed a short-term excursion limit of 1 f/cc over a 30-minute TWA.
Asbestos is regulated by many different agencies at all levels of government. The OSHA Construction Standard, 29 CFR 1926.1101, is the primary standard that is
DEPARTMENT of ENVIRONMENTAL HEALTH and SAFETY
applied to employees. OSHA, the New York State Department of Labor (NYS DOL), the New York City Department of Environmental Protection (NYC DEP), and the New York City Department of Buildings (NYC DOB) govern the work area at Yeshiva University with respect to Asbestos. The EPA regulates disposal and some work practices. The Environmental Protection Agency (EPA) also regulates Asbestos management in public schools.
Key provisions of the Asbestos regulations:
How much Asbestos can you safely be exposed?
- A limit on work place exposure of 0.1 fiber per cubic centimeter of air (0.1 f/cc) averaged over an eight hour day (8-hour TWA)
- An excursion limit of one fiber per cubic centimeter 1 f/cc) averaged over a sampling period of 30 minutes.
Required work practices for Asbestos removal:
Within the work area of an Asbestos project, employees must:
- Use engineering controls and work practices to reduce exposure, including negative filtered air pressure and wet methods. The negative filtered air machine filters the air leaving the work area free of released fibers. Wet methods keep fibers from entering the air.
- Monitor the use of personal protective equipment including respirators.
- Take air samples for employees and work areas.
- Place signs at all entrances to work areas.
- Label all Asbestos-containing material.
- Dispose of Asbestos waste properly.
Use of respirators:
Respirators shall be used to control exposure only in the following circumstances:
- While feasible engineering and work practice controls are being installed.
- During maintenance, repair, and other operations for which engineering controls are not feasible.
- In work situations where there is a potential for exposure at or above the Permissible Exposure Limit (PEL)
- During construction and remediation work with friable Asbestos. Friable Asbestos is Asbestos-containing material, which is easily disturbed by hand pressure.
- In emergencies.
A respirator is required whenever working with friable Asbestos. The level of respiratory protection is dependent upon the concentration of fibers in the air. If an air-purifying respirator (i.e. a respirator with a filter) is used, NIOSH approved P100 HEPA filters should be used. Before a respirator is assigned to an employee, a medical evaluation and fit test must be given to the worker.
2
ALBERT EINSTEIN COLLEGE of MEDICINE of YESHIVA UNIVERSITY
DEPARTMENT of ENVIRONMENTAL HEALTH and SAFETY
Workplace Requirements for Exceeding Action Levels:
Action Level (8 hour 1TWA: 0.1 f/cc; 30 minute TWA:1.0f/cc) – If the eight-hour concentration of Asbestos is equal to or exceeds either action level, employers must establish and implement a written program to reduce employee exposure to or below the TWA and to or below the excursion limit.
Requirements for Negative Exposure Assessment:
Employers who perform a Negative Exposure Assessment for non-friable Asbestos, demonstrating that the work they will be doing is below the action level, need not comply with many parts of the various regulations. However, this demonstration must be based on previous jobs with the same material, objective manufacturer data, or an initial exposure assessment. A Negative Assessment is also used to determine what level of respirator protection is needed.
Requirements for Exposure Monitoring During Asbestos Removal:
Two types of exposure monitoring are conducted on a routine basis during Asbestos remediation jobs. The first type is called area sampling. Area sampling is air monitoring that is conducted in and around the work area. Area monitoring is conducted during all phases of the remediation and is subject to different limits depending on what phase the remediation is in. Air monitoring is an important control for Asbestos work to ensure that no one is unexpectedly exposed to Asbestos fibers in the surrounding area. A third party contractor unaffiliated with the owner or Asbestos removal contractor is required to take these samples. The second type of monitoring is called OSHA personal monitoring. A representative number of the workers performing each task during remediation is monitored using a personal air monitor attached to them so that their breathing air is monitored.
Requirements for Medical Surveillance:
The OSHA Construction Standard requires a comprehensive medical surveillance program to be conducted by or under the supervision of a licensed physician. Employers must provide medical surveillance annually to:
* Employees who are exposed to Asbestos levels greater than the PEL for over 30 days per year,
* Employees who perform class I, II, or III work for 30 days or more per year,
* And to employees who are required to wear a respirator.
Medical surveillance consists of a questionnaire, a chest X-ray and pulmonary function tests.
Requirements for Regulated Areas:
Employers must post signs wherever there is friable Asbestos. Damaged friable Asbestos must be cordoned off and repaired, encapsulated or removed immediately.
3
ALBERT EINSTEIN COLLEGE of MEDICINE of YESHIVA UNIVERSITY
DEPARTMENT of ENVIRONMENTAL HEALTH and SAFETY
Asbestos remediation jobs must be closed off to the general public and only authorized personnel allowed. Never enter an area that has been posted "Asbestos Hazard", unless you are a trained and certified Asbestos worker. "Asbestos Hazard" areas are required to have signs at all entry points.
Requirements to Communicate Asbestos Hazards to Employees:
Employees who come in contact with Asbestos, or who handle Asbestos-containing materials, must receive initial training and then annual training. This includes housekeeping staff and maintenance staff who may come into contact with Asbestos during their routine duties.
Activities such as cleaning and building maintenance may bring an employee in contact with Asbestos-containing material. These employees must be alert to their work area, know how to recognize possible Asbestos-containing material, and know what to do (Call Environmental Health and Safety at X4150 for AECOM and X081 for YU). In addition, areas where there is a potential for exposure to Asbestos must be marked through signs and labels. Known Asbestos-containing materials must be labeled and areas where there is Asbestos work being performed must be clearly marked with signs at all entrances, and at the entrance to the building. The signs are designed to keep untrained and uncertified workers out of the area.
Requirements for Record Keeping:
All medical records associated with Asbestos must be retained for the duration of the employees' work with the employer plus 30 years. Fit test records must be kept until the next fit test (one year).
Where do the Regulations Apply?
The regulations regarding Asbestos apply to workplaces where Asbestos is handled, removed, or repaired. Asbestos regulations also apply to Asbestos disposal. Working in an area that contains Asbestos material in good condition (i.e. not in disrepair), is not a health hazard. If Asbestos-containing material is observed with breaches, or in bad conditions such as visible powder released, the area should be evacuated. Only Asbestos licensed professionals should remove any Asbestos hazards before reoccupancy.
To protect Asbestos workers against exposure, follow these safety precautions:
* Be aware of your surroundings.
* Report suspicious situations such as white powder on the floor near a pipe to Environmental Health and Safety.
* Have only trained and certified Asbestos workers handle, manipulate, encapsulate, enclose, remove or repair Asbestos-containing materials.
* Always wear proper personal protective equipment while in the work area. This protective equipment includes a tyvek suit, gloves, and a proper respirator designed to keep Asbestos fibers out of the body.
4
DEPARTMENT of ENVIRONMENTAL HEALTH and SAFETY
* Always follow proper decontamination techniques when leaving an Asbestos-contaminated area. This includes removal of protective equipment in equipment room, shower, and then removal of respirator.
* Do not smoke. Smoking and Asbestos exposure have a synergistic (additive) effect. If you smoke and are exposed to Asbestos fibers, you can have a 90 times greater chance of developing lung cancer. The employer is required to have a smoking cessation program available to all Asbestos workers.
* Do not eat in the Asbestos work area. Likewise, smoking is prohibited and removal or application of contact lenses or make-up is prohibited.
* Avoid anything that may result in fiber entering the body.
Emergency Procedures:
Medical emergencies – call 911 and X4111 at AECOM and X221 at YU To report suspicious Asbestos conditions call EH&S X4150 at AECOM and X081 at YU.
* Inhalation Emergencies – Remove person to fresh air. If not breathing, give artificial respiration. If breathing is difficult, give oxygen.
* Skin Contact – There is no significant health risk from Asbestos due to skin contact. Asbestos cannot be absorbed through the skin, but prolonged contact will produce scarring called an Asbestos wart. Also, Asbestos fibers may be ingested if in contact with the skin.
* Ingestion Effects – Ingestion is a secondary route of entry into the body for Asbestos. This can occur when Asbestos fibers are coughed up in mucous slurry and swallowed or when Asbestos fibers are not washed off hands before eating. In the event of ingestion, wash out mouth with copious amounts of water.
* Material Safety Data Sheets (MSDS) – Read the attached Material Safety Data Sheet for additional information on Asbestos and its hazards.
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AGENDA ITEM
8
Strategic Policing and Crime Board
28 th November 2023
Police and Crime Plan Priority: Regular Item
Title: Performance Report
Presented by: DCC Scott Green
Purpose of paper
1. To provide an overview of performance against the National Crime and Policing Measures in a format to be used as West Midlands Police's (WMP) official statement on performance and activities undertaken.
2. This statement will be published along with a statement from the Police and Crime Commissioner as well as a Police and Crime Plan Key Performance Indicator (KPI) scorecard for measures where data is currently available.
3. The PCC (Police and Crime Commissioner) has asked for the Force to provide an update on incident demand and response times for P1-P3 grades, with a focus on the impact of the new operating model.
National Policing Priorities
4. Please note the National Baseline set by the Government is calendar year 2019.
Measure: P1-P3 Incident Demand and Response Times
5. In the first 6 months of the financial year the force created (excluding duplicate calls about same incident) 96,379 P1 immediate response incidents. This is about 5% more than same period last year.
6. The median response time for these incidents was 13 minutes and 2 seconds, with 54% of incidents being responded to within 15 minutes. This is a minute and 10 seconds quicker than same period last year which had a median response time of 14minutes and 12 seconds; and the SLA has improved by 4% compared to the 50% SLA last year.
7. For P2 Priority Response incidents, 48,416 incidents were created, this is a 3% increase in same period last year.
8. The median response time for these incidents was 69 minutes and 11 seconds, with 35% of incidents being responded to within 60 minutes. This is over 36 minutes quicker than same period last year which had a median response time of 106 minutes and 5 seconds; and the SLA has improved by 8% compared to the 27% SLA last year.
9. For P3 Priority investigations incidents, 43,299 incidents were created, this is a 182% increase in same period last year. A significant proportion of the increase is due to no longer creating P4 scheduled investigations anymore, and most of these being transferred to P3 incidents: with such a change to grading profile no direct comparison with performance is comparable but the median response time of 9 hours 45 mins is significantly below the 24-hour SLA.
10. For Domestic Abuse, the Median Response time for P1 response for 23/34 was 15 minutes 41 seconds with an SLA of 46%, which has seen improvements of 1 minute and 47 seconds with the SLA improving by 6%. For P2 Response 23/34 was 2 hours 19 minutes 12 seconds with an SLA of 27%, which has seen improvements of 58 minutes and 6 seconds with the SLA improving by 10%.
11. For Missing people, incidents the Median Response time for P1 response for 23/34 was 18 minutes 24 seconds with an SLA of 38%. This represents an improvement of 1 minute and 27 seconds on the median time, with the SLA improving by 5%. For P2s, response times in 23/34 were 1 hour 47 minutes 33 seconds, with an SLA of 27% - an improvement of 62 minutes and 35 seconds and 9% SLA for the SLA.
Measure: Reduce Murder and Other Homicide
12. The volume of Homicides in West Midlands has remained relatively stable in recent years averaging less than five a month. Volumes from Oct 2022 to Sep 2023 saw 46 homicides, compared to 43 in the year ending Dec 2019 baseline (National Baseline set by Home Office). The rate of homicides in the West Midlands is similar to that of most similar forces.
13. The last 12 months data from Homicide Index showed 20% of all Homicide was domestic-related, Drugs (47%) and alcohol (33%) are also significant factors. Analysis of victims and offenders also show the high proportion of victims (17%) that are under the age of 25. Almost one in four homicides take place within WMP's Impact Areas.
14. These factors will drive activity towards improving performance over the forthcoming quarter, Gang Related Violence remains one of the Force Tactical Priorities for the next period.
Measure: Reduce Serious Violence
15. The national measure for Serious Violence relates to hospital admissions. After seeing several years of increases, levels of hospital admissions for under 25s with sharp object wounding have reduced since the peak in the baseline year (2019). The last 12 months (June 2022 to May 2023) saw 165 episodes, a reduction of 25 compared to the national baseline year ending Dec 2019. Police recorded crime data for Youth Violence with Injury is showing an increase of 181 (+2.4%) vs year ending Dec 19.
16. Between 01/10/2022 and 30/09/2023 WMP recorded 95 lethal barrelled firearms discharges. This is a reduction of 31 when compared to the 12-month period prior to this when 126 lethal barrelled firearms discharges were recorded.
17. Shotguns remain the most commonly used lethal barrelled firearm. In the 12month period between 01/08/2022 and 31/07/2023, 45% of discharges continue to be shotguns.
18. With regards to recoveries, between 01/10/2022 and 30/09/2023, WMP have recovered 139 lethal barrelled firearms which is an increase of 17 compared to the 12 months previous where 122 lethal barrelled firearms were recovered.
19. WMP's response to firearms is through Operation Captiva. This coordinates firearms activity throughout the force, understanding the current threat picture and monitoring performance. Between 1 st April 2023 and 21 st June 2023, WMP have completed 31 firearms warrants, 18 other warrants and 79 Captiva visits.
20. Under 25 Violence is a tactical priority for West Midlands Police and is reviewed monthly at the Force Tactical Delivery Board (FTDB) where decisions are made on where to invest the Guardian Taskforce and other force resources.
21. Grip funding comprises £3.2m per annum for three years, with WMP having entered year 2. WMP are required to demonstrate 20% match funding in year one, 30% in year two and 40% in the final year. This fund is delivered under Project Guardian
22. The aim of Project Guardian is to suppress and reduce Serious Youth Violence (U25 violence with injury with a focus on knife enabled criminality). It is recognised that Serious Youth Violence spans a number of portfolio areas including Violence and Intimidation Against Women and Girls (VAIWG), Nighttime Economy (NTE), Serious and Organised Crime (SOCEX), Acquisitive Crime and County Lines.
23. Targeted Guardian Patrol activity continued throughout this period across 48 areas of the West Midlands (Phase 2) whilst the evaluation of Phase 1 (Q1) was undertaken. Planned patrol compliance during this period was 84%, up from 76% in Q1, the average time of a patrol was 49 minutes (46 in Q1), and 28% of the patrols were conducted by a warranted officer (PC) the same as Q1.
24. Focus with LPA Leads has been on ensuring that as many of the patrols are conducted by a PC as possible, in order that that they can utilise their warrant powers should they need to. These patrols reflect the areas and locations that are suffering the most Serious Youth Violence and are at risk of a knife-enabled violent incident: it is therefore imperative to have our Police Constables being deployed and not our PCSO (Police Community Support Officers) colleagues.
25. The evaluation paper led by the Data Lab was taken to Ethics Committee in September. Evidence to date from the 6 months of testing (October 2022 – April 2023) is that the additional patrols have had an impact on violent incidents: circa 100 less victims were reported; and that there is also evidence of a residual impact of the patrol (meaning that there is an ongoing reduction effect in subsequent days) once it has occurred. This has informed the approach we will take in Phase 3 (Nov onwards). Currently there is a disagreement with ethics regarding the control areas and the method of comparison which is being worked through.
26. Overall, Targeted Guardian Patrol activity has ensured we have had our staff in the right place at, the right time during the summer months. Where we seasonally expect to see an increase in violent offences, this period was controlled and saw a -6.4% reduction is Serous Youth Violence.
Measure: Disrupt Drug Supply and County Lines
27. Recorded Drug offending has significantly increased over the last 12 months compared to the national baseline. Overall increases have been 32% with 7838 trafficking or possession of drugs offences recorded. Possession offences account for 2/3 of the volume with an increase of 30% with trafficking offences increasing by 36%.
28. The Country Lines Taskforce operating model continues to embed, operating across all West Midlands LPA's, regionally and nationally, supported by a clear 4P plan. The specialist investigative function now includes a dedicated capability to investigate exploitation of children and vulnerable adults linked to County Lines.
29. The digital forensic capability has been enhanced, whilst maintaining both digital media and drug expert witness support. Additional CDIU resilience has been created to support the additional demand placed against that function.
30. County Lines Financial Investigators are now generating income through seizure, confiscation and forfeiture of criminal assets.
31. Home Office line closure targets have increased during 23/24 to 240. During Q2, a continuation of strong drug line closures and positive CJ outcomes was maintained with a total of 67 closed down. Year to date the Taskforce has now secured nearly 70% of Home Office targets for 23/24. Cash seizures alone in Q2 are in excess of £250,000; with multiple confiscation orders being progressed regarding other criminal assets including houses, bank accounts and vehicles.
32. In addition to Op Mabble and the proactive investigative strategy that is seen as best practice under Project Housebuilder (National response led by NCA) other notable investigations include Operation Andesine, concerning a prominent Birmingham gang nominal who utilized social media channels to distribute Class
A drugs. The Shocker Line was enforced against in July, which was a Class A drug line supplying a significant number of service users linked to local serious acquisitive crime. Action against the Ezra Line led to the recovery of 3 viable (and loaded) firearms in Birmingham following close work with the covert investigations team.
Measure: Reduce Neighbourhood Crimes
33. Burglary Residential during the year ending Dec 2019 saw West Midlands record 18,733 Residential Burglaries. The last rolling 12 months ending July 23 saw 15,056, so this equates to a 20% reduction. The detection rate for burglary in September 2023 was the highest for over 5 years.
34. Personal Robbery during the year ending Dec 2019 saw 7,714 Persons Robberies recorded. The last 12 months have seen 7,570 Robberies, a 2% reduction. The detection rates for July and August were the highest in 5 years apart from initial lockdown for Covid.
35. Vehicle Crime has now seen increases compared to the baseline of 14%, especially around theft of vehicles, with October 22 being the highest month for several years. It is assessed that the issue of global supply for car parts is driving demand in relation to this offending pattern. This conclusion is drawn in part from evidence from the legal car market, where the lack of key components such as microprocessors and semi-conductors have seen an increase in the demand for second hand vehicles as a substitute for brand new vehicles. A Vehicle Crime Taskforce was launched at the start of September 2022 to tackle organised vehicle crime under Operation Seclusion. Since April volume crime numbers have been reducing, with the first six months of this year being 10% lower than same period in 2022: this is drive in part by the efforts to arrests more offenders and understand the offending patterns under Operation Seclusion. July 23 saw the highest level of arrests for vehicle crime for over 3 years. The proactive local neighbourhood work has seen the last 6 months all show reductions on previous 12 months with September 23 being lowest volume month for 2 years. October 23 was a record month for volume of detections for vehicle crime.
36. As part of this, West Midlands Police has been undertaking wider intelligence and investigative work to understand why vehicles are being stolen or have parts removed, the prevalence of 'chop shops', whether vehicles remain intact, whether vehicles or
parts remain in the UK, whether they are used to commit further crime, how they are stolen and whether they are stolen to order as part of wider organised criminality. This may involve the exploitation of vulnerable individuals.
37. Theft from Person has increased by 43% compared to the baseline. Theft of mobile phones is a significant contributor to this, especially in the night time economy (NTE), 20% of all thefts occur within Birmingham City Centre neighbourhoods. Licensing officers are working with key venues to encourage customers to keep phones and bank cards safe whilst out. Birmingham West is running Operation Equate targeting key offenders and joint patrols with partners in key areas. Crime prevention messages are in key hotspot areas as well as targeted social media campaign aimed at people attending large events.
38. Anti-Social Behaviour (ASB) has reduced by 8,113 incidents (-26%) in the last 12 months compared to national baseline, however the vast majority of this will now be crimed as Public Order offences which has increased by 10,386 during same period. Levels of ASB are fairly stable over the last 12 months with approx. 2000 incidents recorded a month and makes up approx. 3% of total incident demand the force receives.
Measure: Improve Satisfaction
39. There is no local data for the national measure since before the pandemic hit, however the latest Crime Survey for England and Wales sample showed West Midlands to be below the national average for perceptions that police do a good job.
40. Following the pilot of an SMS survey in late 2020 the citizen satisfaction project has embedded the SMS survey into Force Contact and Force Response since February 2021, giving an increased voice to the public about the service they have received. The survey obtains real time service satisfaction from the public across a much wider range of police involvement that our previous surveys have been able to. Information from SMS surveys is segmented against multiple factors, including incident type, caller demographics, location, day of the week, time of the day and down to team and individual level in order to gain insight, learn, develop, and reward.
41. WMP have received 16,272 completed surveys (approx. completion rate 9%) over the last 12 months, the results showed 67% of respondents giving an 8 out of 10 score or higher to the question focusing on whether WMP helped with their issue.
42. A pilot is currently underway to understand satisfaction with service surveying people after they have been subject of stop and search. A quick response (QR) code is used to capture feedback of individuals subject to stop & search which people take away to fill in; this has also been trialled in a similar format in Custody. In the first 10 months 457 responses (inc peak month in July with 77) have been recorded from people who have been subject of stop and search – which is approx. 2% of all stop and search undertaken in this period. 72% of respondents stated they felt the police officer acted fairly and 79% said the reasons for search were explained.
43. West Midlands Police are taking part in a pilot for the new National Victim Experience Survey (NVES).
44. The NVES will be an ongoing survey of victims of crime, reported to and recorded by any of the 43 territorial police forces in England and Wales. Kantar Public have been commissioned by the Home Office to develop and test the survey, before considering further rollout.
45. National fieldwork for the pilot commenced mid-September and will run for two months. Between the pilot and the survey going live nationally, Kantar will produce pilot report and pilot learnings will be shared with us for consideration.
46. The survey will be opportunity for victims of crime to provide feedback on their experiences and will ask about their experience of reporting a crime, the police response and how well they were treated throughout their criminal justice journey. Participation in the survey is entirely voluntary and victims will be able to change their mind at any point.
47. One of the aims of the WMP Victim Strategy is to listen to victims and change the way we work in response to their feedback. The NVES will support that aim through detailed insights into victims' views and attitudes and will also support work on improving trust and confidence in policing by highlighting disparities among victims
Measure: Tackle Cyber Crime
48. The national measure data is not available at Police Force Area level. Therefore, proxy measures on Online and Fraud offences will be used, this will be from WMP data systems rather than Home Office data.
49. From 01/05/2023 to date there have been 6201 reports of Fraud / Cyber Crime within the West Midlands Police force area equating to £40.9m worth of losses.
50. To date the Economic Crime Unit have supported all Op Advance days. During Op Advance days, WMP carries out Fraud & Cyber Crime Prevention Roadshows at multiple locations within that particular LPA, supporting as many different events that are taking place during the day of the Operation. This has raised the profile of our department / team and our capabilities significantly. During this Operation we have identified DA support groups and have extended our support to deliver more specific/tailored materials. I.e. Cyber Stalking and Harassment sessions. These sessions have received positive feedback and are high in demand. We have several sessions scheduled, going in to 2024.
51. We are currently working with Banks / Building Societies in order to increase awareness of Courier Fraud. During these sessions, we share the recently produced Courier Fraud video to raise awareness of what Courier Fraud is and what to look out for. Further to this we have identified knowledge gaps amongst staff in Banks / Building Societies when it comes to Banking Protocol, confidence in probing / challenging customers, invoking Banking Protocol. Further training has been delivered around the Banking Protocol process; When to invoke, why to invoke and providing reassurance and the confidence to do so etc. which greatly reduce the number of victims and prevent further harm. We have supported the creation of Courier Fraud guidance specific to Force Contact in order to improve the forces response to identifying, responding and investigating Courier Fraud reports.
52. October was Cyber Security Awareness month and throughout every day of the month, the ECU have been a visible presence within the community, carrying out a roadshow of events in different Banks, across different LPA's. We have upskilled both staff and customers on Cyber Security. We have produced and published an article in Newsbeat to educate officers and staff on Cyber Security. We are currently working with Corporate Communications to produce TikTok videos to raise awareness of Cyber Security. We continue to engage with nominals that have carried our Computer Misuse offence to educate, deter and issue C&D notices.
Equality Implications
53. Levels of crime are not equally spread across the West Midlands area both in terms of geographically or population. Areas where analysis has shown there is
a disproportionate amount of crime, demand, deprivation and harm have significant disproportionality around victimology.
54. Young People in particular are more likely to be victims of violent crime such as robbery and serious youth violence is a force priority.
55. Details are provided where applicable within the relevant sections of the report, areas like Burglary and Vehicle crime are more targeted for the property that is
stolen.
Next Steps
56. The board is asked to note the contents of this report.
Author: Scott Green
Job Title: Deputy Chief Constable – West Midlands Police
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Kimberley Kinder, DIY Detroit: Making Do in a City without Services, Minneapolis: University of Minnesota Press, 2016. ISBN 978-0-8166-9707-6 (cloth); ISBN 978-0-8166-9709-0 (paper)
In the summer, Dale cuts the grass of vacant houses on his block. In the winter, he shovels their snow. Gene tries to make empty houses on his street look occupied by planting flowers, trimming shrubs and decorating them for the holidays. Edna hangs white curtains in her windows so she can leave them closed but still see activity on the street. In Ellison's neighborhood, where half of the street lights no longer work, he and his neighbors leave their porch lights on all night. Such everyday practices are the focus of Kimberly Kinder's DIY Detroit, an account of how urban residents "self-provision" in response to inadequate city services, depopulation, and disinvestment, and the effect of these practices on the social and spatial logic of the city. For Kinder, the Motor City, which declared bankruptcy in 2014, epitomizes these trends and serves as a sort of cautionary tale. If there is one argument to take away from DIY Detroit, it is that selfprovisioning should not be romanticized in an era of neoliberal urbanism.
Kinder illuminates a particular kind of informality: self-provisioning strategies that Detroit residents use to maintain and compete for control of "gray spaces"–a term borrowed from Oren Yiftachel (2009)–near their homes. Whereas Yiftachel uses it to refer to spaces that reflect colonial relations and the ways new urban regimes are expediting what he describes as "creeping apartheid", Kinder's usage is more theoretically and historically circumscribed. For her, gray spaces are in-between spaces that public officials and private owners have neglected. Think abandoned buildings and overgrown parks. In Detroit, there are many such spaces. In 2016, city officials categorized over 150,000 houses as "vacant" or "abandoned". Kinder argues that gray spaces frequently become sites of competition, for example, between residents trying to maintain their neighborhoods and scrappers scavenging houses for metal and other valuable material. Drawing on surveys, participant observations, and interviews, DIY Detroit chronicles the ways residents manage and try to gain control over gray space in three Detroit neighborhoods
(Brightmoor, Springwells Village, and MorningSide). The book chapters are organized around six different collective self-provisioning strategies that Detroit residents use to "make do" in neighborhoods without services: recruiting new residents; protecting vacant homes; repurposing abandoned spaces; domesticating public works; improving public safety; and producing new knowledge.
While Kinder is mostly interested in an uptick in self-provisioning in US cities in the wake of the late 2000s through early 2010s Great Recession, she situates the residential stewardship practices that are the focus of DIY Detroit within a longer history that goes something like this: Before the rise of the modern city, self-provisioning was a norm evidenced by the commonness of urban homesteads, backyard gardens, volunteer fire brigades, and informal room rentals. By the mid 20 th century, self-provisioning began to wane. Municipal roads, waterlines, fire trucks, and other urban public works became more widespread, zoning laws became more stringent, and rising incomes and welfare programs provided alternatives for people who previously provisioned for themselves. In the 1970s, self-provisioning resurfaced as deindustrialization, welfare cuts, and the rise of unemployment and precarious labor made urban living difficult. It reappearance was particularly pronounced among people of color who often lived in segregated neighborhoods and faced precarious labor positions. To counter municipal neglect, they exchanged food, clothing, childcare, and car rides, participated in street cleanups and neighborhood watches, and organized housing redevelopment campaigns. In the 1980s and 1990s, the privatization of city services from street maintenance to ambulance services, waste management, and drug treatment centers led to increased residential vulnerability and, thus, an expansion in self-provisioning strategies. The 2008 subprime mortgage crisis and slew of municipal bankruptcies that followed marked a new self-provisioning apex: not only were residents taking it upon themselves to self-provision, they were now being encouraged by nonprofit organizations, governments, and activists to "self-sacrifice their time, bodies, and
emotional energy cleaning trash and organizing safety patrols in their chronically underserved neighborhoods" (p.27).
A great strength of DIY Detroit is the care with which Kinder captures the minutiae of the stewardship practices residents use to "make do" in neighborhoods where the government has withdrawn or neglected public infrastructure and they can't afford the cost of private services. Such a grounded portrait of everyday life serves as a sort of counter narrative to the national and international media attention lavished on the city in recent years that has too often offered up crude and misunderstood portrayals of its "empty" landscape and supposed renaissance. The book also makes a timely contribution to urban studies by drawing analytical attention to urban informality in global North cities. Informality, commonly understood as economic relationships that fall outside of the formal sector, such as petty trade, unsanctioned shelter, and nonpayment of taxes, is often studied in the global South, but has received less attention in the global North (Schindler 2014). DIY Detroit provides a ground-level view of what the growth of informality as a new "mode of metropolitan urbanization" (Roy 2005) means for residents and for deepening stratification within cities between the haves and have-nots. It is not a rosy picture.
DIY Detroit seems to be a corrective aimed at those who hold romantic notions of selfprovisioning and community governance, particularly those who see it as something that is "inherently revolutionary". While it's unclear whom Kinder has in mind, what is clear is that DIY Detroit seeks to interrupt arguments that such makeshift practices could be a panacea for contemporary urban crisis. The one culpable party that Kinder identifies are city planners, who, in the late 2000s, started embracing urban informality of a certain sort–like taco trucks and guerilla gardens–for its trendiness, counter-cultural cache, and potential to stimulate revitalization. She argues that such celebrations of informality are misguided because for most urban dwellers self-provisioning is not about counter-cultural reform but survival in underserved cities.
Kinder acknowledges some of the benefits that come from self-provisioning, such as its capacity to strengthen community bonds, solve practical problems, and exert influence on how the municipal government and nonprofits distribute resources, but she ultimately sees it as a "limited coping mechanism" that won't solve long histories of racialized disinvestment nor combat neoliberal governance. While others may romanticize self-provisioning, most residents only engage in such short-term actions, she contends, because "too few politically viable alternatives exist" (p.201). Instead of spending their spare time managing failed municipal environments, they want neighbors and functional public works. Self-provisioning reflects, as she writes, "the profound political loss of a multigenerational effort to build democracy and public good into urban life" (p.31). For these reasons, Kinder sees it as a "weapon of the weak" (Scott 1985) that needs to be connected to other modes of engagement like developing regional taxation, national anti-racism programs, and public policy focused on limiting social inequality. However, DIY Detroit does not provide any detailed discussion of historical or contemporary movements for such reforms within Detroit–a city with a rich history of labor and Black radical activism 1 –or how such movements might relate to past or present forms of residential selfprovisioning. In concluding that there needs to be more civic action, the suggestion is that at present self-provisioning and civic activism are mutually exclusive. Yet many Detroit residents are engaging in both self-provisioning and civic activism, such as fighting foreclosures and evictions, campaigning to reform racist emergency manager laws, and working for citywide community benefits agreements and for more accountability in local governance. Given this, DIY Detroit provokes a number of questions that other researchers might explore.
In recent years, there has been a concerted push for urban studies scholars and urban geographers to engage more with critical race, queer, and feminist theory in order to illuminate the lived
1 See, for example, Antipode's recent symposium "The Detroit Geographical Expedition and Institute Then and
Now: Commentaries on 'Field Notes No.4: The Trumbull Community'"
https://antipodefoundation.org/2017/02/23/dgei-field-notes/ (last accessed 30 March 2017).
experiences of social difference in place and how people resist oppressive structures (Buckley and Strauss 2016; Derickson 2015, 2017; McKittrick 2013; Oswin 2016). This push is not simply to rectify a gap in the literature but stems from an understanding that how we theorize the city has consequences for how urban futures are imagined and the scope of what is considered possible. Kinder's focus on self-provisioning as a "weapon of the weak" has the potential to illuminate political openings, but might benefit from deeper engagement with Scott's concept.
James Scott's call to recognize the "weapons of the weak" sought to redefine what kind of movements and resistance strategies were considered authentically political. In Weapons of the Weak (1985) and Domination and the Arts of Resistance (1990), Scott drew attention to how subaltern groups resisted domination in subtle ways that were not accounted for by political science's theories of collective action and focus on revolt and rebellion. Scott distinguished between what he called the "public transcript" and the "hidden transcript". The public transcript is produced when people play the political roles you'd expect them to in public settings. However, if we only pay attention to the public transcript, he argued, we may misread subordinate groups' actions as consent and overlook a dissident political culture that manifests in quotidian struggles and the discursive practices of everyday life.
Given Scott's charge, DIY Detroit leaves me with the question of how a study of selfprovisioning like Kinder's might look different if situated in relationship to the historical Black experience and collective social struggle. How, for example, would the history of selfprovisioning that Kinder offers need to be altered if it also accounted for what we might call "community provisioning"? In the predominantly Black city of Detroit, that would include the Black church, mutual aid societies, economic cooperatives, and the extensive survival programs established by the Black Panther Party (Dillard 2007; Hilliard 2002; Nembhard 2014). Would such collective practices simply be seen as a response to state withdrawal or would we also need to consider how African Americans and other groups have historically been positioned outside the body politic and the ramifications thereof for the strategic ways that self-provisioning or
community provisioning is practiced by marginalized groups in different historical moments? I pose these questions to suggest how other scholars might build on Kinder's rich empirical work and further expand our understandings of the relationship between disinvestment, survival strategies, and resistance.
Ultimately, Kinder has produced a timely and detailed account of how residents are getting by amidst disinvestment. Her ability to bring her characters and neighborhoods alive by elucidating otherwise unremarkable moments and encounters is impressive. DIY Detroit is an eminently accessible text, stemming, in part, from Kinder's skill at crafting crisp sentences and her choice to leave citations to the endnotes. Given this, it will be a welcome addition to many undergraduate urban studies courses, particularly those concerned with state retrenchment and conditions of informality in the global North. It is a book that I anticipate will find a wide readership and a home on the shelves of many people ranging from scholars of Detroit and US cites to urban enthusiasts, planners, and theorists of informality.
References
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Dillard A (2007) Faith in the City: Preaching Radical Social Change in Detroit. Ann Arbor: University of Michigan Press
Hilliard D (2002) Introduction. In D Hilliard and D Weise (eds) The Huey P. Newton Reader (pp9-24). New York: Seven Stories Press
McKittrick K (2013) Plantation futures. Small Axe 42:1-15
Nembhard J G (2014) Collective Courage: A History of African American Cooperative Economic Thought and Practice. University Park: Pennsylvania State University Press
Oswin N (2016) Planetary urbanization: A view from outside. Environment and Planning D: Society and Space DOI: https://doi.org/10.1177/0263775816675963
Roy A (2005) Urban informality. Journal of the American Planning Association71(2):147-158
Schindler S (2014) Understanding urban processes in Flint, Michigan: Approaching "subaltern urbanism" inductively. International Journal of Urban and Regional Research 38(3):791-804
Scott J (1985) Weapons of the Weak: Everyday Forms of Peasant Resistance. New Haven: Yale University Press
Scott J (1990) Domination and the Arts of Resistance: Hidden Transcripts. New Haven: Yale University Press
Yiftachel O (2009) Theoretical notes on "gray cities": The coming of urban apartheid? Planning Theory 8(1):88-100
Sara Safransky
Department of Human and Organizational Development
Vanderbilt University email@example.com
March 2016
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Citation 1
Interpretation 2
Exemption in connection with private trust business 3
Exemption in connection with members of recognised professional bodies 4
Exemption where licensed co-trustee administers the trust 5
Exemption where trust records are held by licensed trustee 6
Other exemptions 7
Retention of records [revoked] 8
THE SCHEDULE
In exercise of the powers conferred upon the Minister by section 10(2) of the Trusts (Regulation of Trust Business) Act 2001, the following order is hereby made:—
Citation
This Order may be cited as the Trusts (Regulation of Trust Business) Exemption Order 2002. 1
Interpretation
In this Order— 2
"the Act" means the Trusts (Regulation of Trust Business) Act 2001;
"professional person" means a member of a professional body;
"professional body" means a body which regulates the practice of a profession;
BERMUDA
TRUSTS (REGULATION OF TRUST BUSINESS) EXEMPTION ORDER 2002
BR 38 / 2002
TABLE OF CONTENTS
TRUSTS (REGULATION OF TRUST BUSINESS) EXEMPTION ORDER 2002
"recognised professional body" means a professional body recognised by order of the Minister pursuant to an application made under paragraph 1 of the Schedule;
"trust records" include deeds creating a trust and any associated documents, particulars of trust assets, trust accounts, and resolutions of meetings of the trustees.
Exemption in connection with private trust business
A trust company is exempted from the requirements of section 9 of the Act if it is authorised to provide the services of a trustee only to the trusts specified— 3 (1)
in its memorandum of association; or (a)
in the case of an overseas company, in its permit; (b)
and to such other trusts as the Minister may approve from time to time ("an exempted company").
An exempted company shall— (2)
within three months of the date of coming into force of this Order; or (a)
in the case of a company which has been registered or granted a permit under the Companies Act 1981 after the date of coming into force of this order, within three months of its registration or the grant to it of a permit, (b)
notify the Authority in writing that it qualifies for an exemption by virtue of the restriction specified in subparagraph (1) and give to the Authority particulars of the nature and scope of its trust business.
An exempted company shall notify in writing the Authority of any change in the nature and scope of the trust business that has been approved by the Minister as soon as practicable after approval. (3)
An exempted company shall, on or before 31 March in every year, where it continues to qualify for exemption in accordance with subparagraph (1), file a declaration with the Authority that it continues to qualify for exemption. (3A)
A declaration filed with the Authority in accordance with subparagraph (3A), shall be in such form and contain such information and documents as the Authority may determine. (3B)
In subparagraph (1) "permit" means a permit granted under section 134 of the Companies Act 1981 to an overseas company . (4)
[Regulation 3 amended by BR 137 / 2019 para. 2 effective 31 December 2019]
Exemption in connection with members of recognised professional bodies
A trustee who is a member of a recognised professional body is exempted from the requirements of section 9 of the Act if he holds a certificate issued for the purposes of this Order by a recognised professional body. 4 (1)
TRUSTS (REGULATION OF TRUST BUSINESS) EXEMPTION ORDER 2002
The Schedule has effect with regard to recognising professional bodies. (2)
Exemption where licensed co-trustee administers the trust
A trustee is exempted from the requirements of section 9 of the Act if he is a cotrustee of a trust and at least one other co-trustee is a licensed trustee. 5
Exemption where trust records are held by licensed trustee
A trustee is exempted from the requirements of section 9 of the Act if— 6 (1)
he is a professional person; and (a)
he appoints a specified licensed trust company to maintain trust records of the trust of which he is a trustee. (b)
The following licensed trust companies are specified for the purposes of subparagraph (1)(b)— (2)
a company owned (whether directly or indirectly) by an undertaking of which the professional person is a director, partner or employee; (a)
a company in respect of which the professional person is a director or controller; or (b)
a company forming part of a settlement of which the professional person is a beneficiary. (c)
In subparagraph (2) "settlement" includes every disposition or arrangement under which property is held in trust. (3)
Other exemptions
A bare trustee is exempted from the requirements of section 9 of the Act. 7 (1)
A trustee of the following trusts is exempted from the requirements of section 9 of the Act— (2)
a pension plan registered under the National Pension Scheme (Occupational Pensions) Act 1998; (a)
a pension trust fund registered under the Pension Trust Fund Act 1966; (b)
an investment fund authorised under the Investment Funds Act 2006; and (c)
an investment fund exempted under section 7 of the Investment Funds Act 2006. (d)
[Article 7 para (d) inserted by BR2/2006 effective 6 January 2006; paras (c) and (d) amended by 2006:37 s.77(3) effective 7 March 2007]
Retention of records
[Revoked by 2012 : 27 s. 6] 8
[Paragraph 8 revoked by 2012 : 27 s. 6 effective 13 July 2012]
THE SCHEDULE
(Regulation 4 (2))
PART I: RECOGNITION OF A PROFESSIONAL BODY
APPLICATION FOR RECOGNITION
A professional body may apply to the Minister for an order declaring it to be a recognised professional body for the purposes of this Order. 1 (1)
Any such application— (2)
shall be made in such manner as the Minister may direct; and (a)
shall be accompanied with such information as he may reasonably require for the purpose of determining the application; and (b)
shall be in such form or verified in such manner as he may specify. (c)
Every application shall be accompanied with a copy of the applicant's rules and of any guidance issued by the applicant which is intended to have continuing effect. (3)
The Minister may, on application duly made in accordance with this paragraph and after being furnished with all such information as he may require, make or refuse to make an order ("a recognition order") declaring the applicant to be a recognised professional body. (4)
The Minister after consulting with the Authority may make a recognition order if it appears to him from the information furnished by the body making the application and having regard to any other information in his possession that the requirements of Part II of the Schedule are satisfied as respects that body. (5)
Where the Minister refuses an application for a recognition order, he shall give the applicant a written notice to that effect, stating the reasons for the refusal. (6)
REVOCATION OF RECOGNITION
A recognition order may be revoked by a further order made by the Minister if at any time it appears to him that any requirement of Part II of the Schedule is not satisfied in the case of the body to which the recognition order relates. 2 (1)
An order revoking a recognition shall state the date on which it takes effect and that date shall not be earlier than two months after the day on which the revocation order is made, and may contain such transitional provisions as the Minister thinks necessary or expedient. (2)
Before revoking a recognition order, the Minister shall give written notice of his intention to do so to the recognised body and shall state the reasons for which the Minister proposes to act and give particulars of the rights conferred by subparagraph (4). (3)
A body on which notice is served under subparagraph (3) may within one month from the date of service of the notice make written representations to the Minister and the Minister shall have regard to such representations in determining whether to revoke the recognition order. (4)
A recognition order may be revoked at the request or with the consent of the professional body and any such order shall not be subject to the requirements of subparagraphs (3) and (4). (5)
PART II : REQUIREMENTS FOR RECOGNITION OF A PROFESSIONAL BODY STATUTORY STATUS
The body must regulate the practice of a profession in the exercise of statutory powers. 3
CERTIFICATION
The body must have rules, practices and arrangements for securing that no person can be certified by the body for the purposes of this Order unless the following conditions are satisfied— 4
the certified person must be an individual who is a member of the body; and (a)
his main business must be the practice of the profession regulated by the certifying body. (b)
SAFEGUARDS FOR CLIENTS
The body must have rules regulating the carrying on of trust business by persons certified by it which , in the Minister's opinion, afford an adequate level of protection for clients. 5 (1)
In determining in any case whether an adequate level of protection is afforded for clients, regard shall be had to the nature of the trust business carried on by persons certified by the body, the kinds of clients involved and the effectiveness of the body's arrangement for enforcing compliance. (2)
MONITORING AND ENFORCEMENT
The body must have adequate arrangements and resources for the effective monitoring of the continued compliance by persons certified by it with the conditions mentioned in paragraph 4 of this Schedule and rules, practices, arrangements for the withdrawal or suspension of certification in the event of any one of those conditions ceasing to be satisfied. 6 (1)
The body must have adequate arrangements and resources for the effective monitoring and enforcement of compliance by persons certified by it with the rules of the body relating to the carrying out of trust business. (2)
TRUSTS (REGULATION OF TRUST BUSINESS) EXEMPTION ORDER 2002
The arrangements for enforcement must include provision for the withdrawal or suspension of certification. (3)
INVESTIGATION OF COMPLAINTS
The body must have effective arrangements for the investigation of complaints relating to the carrying on by persons certified by it of trust business in respect of which they are subject to its rules. 7
PROMOTION AND MAINTENANCE OF STANDARDS
The body must be able and willing to promote and maintain high standards of integrity and fair dealing in the carrying on of trust business and to co-operate by the sharing of information and otherwise, with the Minister, the Authority and any other person having responsibility for the supervision and regulation of trust business or other financial services. 8
Made this 9th day of August , 2002
Minister of Finance
[Amended by:
BR 2 / 2006
2006 : 37
2011 : 20
2012 : 27
BR 137 / 2019]
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User Manual
Model: Breezy Blue Response (SKU: BBR01)
With Bluetooth® Wireless Technology
Manufacturer and Contact Information
Manufacturer: Build With Robots
Address: 429 Commercial Street NE Albuquerque, NM 87102
For product information, sales, service, and technical support:
https://buildwithrobots.com/
Customer Support Phone: (833) 273-3991
Email: email@example.com
This manual covers model: Breezy Blue Response (BBR01)
SPECIFICATIONS:
Voltage: 110-120 VAC
Watts: 1080 W
Amps: 9.0 A
Hertz: 50-60 Hz
Safety Symbols
These symbols and terms may appear on the product and in this user manual:
General Safety Summary
Review the following safety precautions to avoid injury and prevent damage to this product.
To avoid potential hazards or harm, use this product only as specified.
Failure to comply with the precautions and warnings in this manual violates the safety standards of the design, and the intended use of the product. The manufacturer assumes no liability for harm of persons or damage of property due to the customer's failure to comply with these requirements as the protection provided by the product may be impaired.
To avoid fire or personal injury:
Use proper power cord. Use only the power cord specified for this product and certified for the country of use.
Do not use the provided power cord for other products.
Ground the product. This product is grounded through the grounding conductor of the power cord. To avoid electric shock, the grounding conductor must be connected to earth ground.
Do not disable the power cord grounding connection.
Observe all ratings. To avoid fire or shock hazard, observe all ratings and markings on the product.
Power disconnect. The power cord disconnects the product from the power source. See Product Overview for the location. Do not position equipment so that it is difficult to disconnect the power cord; it must always remain accessible to the user to allow for quick disconnection if needed.
Do not operate without covers. Do not operate this product with covers or panels removed.
Avoid exposed circuitry. Do not touch exposed connections and components when power is present.
Do not operate with suspected failures. If you suspect that there is damage to this product, have it inspected by qualified service personnel.
Disable the product if it is damaged. Do not use the product if it is damaged or operates incorrectly. If there is doubt about the safety of the product, turn it off and disconnect the power cord. Clearly mark the product to prevent its further operation.
Examine the exterior of the product before use. Look for cracks or missing pieces.
Do not operate in wet/damp conditions.
Do not operate in an explosive atmosphere.
Do not operate while moving. Breezy Blue is intended to be operated in a stationary, level position.
Provide a safe working environment. Always place the product in a location convenient for viewing the button or waist-light status indicators.
Place the product where it would not be easily overturned.
Use care when lifting and carrying the product. This product is provided with a handle for lifting and carrying.
Use only BWR-approved solution in the product. Read and understand all safety and operational documentation for solution. Consult the safety data sheet and follow the recommended safety precautions when handling the solution and fogging.
Stay clear of area being treated while in use. Keep the room, vehicle, or immediate area to be treated clear of people, animals, food, etc. while device is in use and the fog is settling.
Avoid excess sound exposure. The device can produce sound levels greater than 80dBA while fogging. Be sure to wear appropriate hearing protection as needed and fog areas when there are no people present.
Keep product surfaces clean and dry.
Provide proper ventilation. To ensure the product functions as intended, keep the rear of device clear of obstructions.
Environmental Considerations
This section provides information about the environmental impact of the product.
Product End-of-Life Handling
Observe the following guidelines when recycling an instrument or component:
Equipment recycling. Production of this device required the extraction and use of natural resources. The device may contain substances that could be harmful to the environment or human health if improperly handled at the product's end of life. To avoid the release of such substances into the environment and to reduce the use of natural resources, we encourage you to recycle this product in an appropriate system that will ensure that most of the materials are reused or recycled appropriately. It is recommended that this device be taken to a certified Waste Electronic and Electrical Equipment recycler.
Do not throw in trash at end of product life.
Contents
Keep this user manual in a readily accessible location
List of Figures
Preface
This manual describes the setup and operation of Build With Robots automated fogging technology. The following device is supported by this manual:
Breezy Blue Response
Where to find more information
General Information
The Build With Robots Breezy Blue™ Response is a self-contained, portable, and remote controlled cold fog dispensing system. Compatible with Build With Robots approved solutions, Breezy Blue Response can eliminate dangerous pathogens and organisms. Breezy Blue also collects and presents data to assure that your space has been thoroughly and properly treated.
Table 1: General features for Breezy Blue Response
*Contact Build With Robots for other approved aHP disinfectants
Service Information
The product contains no serviceable parts and should not be disassembled, repaired, or modified by anyone other than the manufacturer or approved technicians.
Before Unpacking
Inspect the package carton for external damage. If the carton is damaged, notify the carrier.
Remove the device from its package and check that it has not been damaged in transit. Verify that the carton contains the device and contents listed below.
Contents Included:
* 1 x Safety and Compliance Instructions (printed)
* 1 x AC power cord
* 1 x Breezy Blue Response
The appearance or components of the product may differ depending on the model. If anything is missing, please contact Build With Robots.
Product Overview
1. Fog outlet
2. Handle
3. Fogger enable/disable button
4. Fill port cap
5. Status lights (waist and button)
6. Power connector
7. Air intake
Getting Started
Operating Requirements
Install the device in a location meeting the following guidelines:
* Rear clearance: 5 cm (2 inches) or greater
* Recommended Height from ceiling: 1.2 m (4 feet) or greater
* Place device on a solid, level surface or cart
* Device is not meant to be operated while moving
* Install equipment so that power cord is easily accessible
* Do not place a unit near any motion or fire sensors. It is possible that the fog can set off these alarms.
Table 2: Environmental Specifications for Breezy Blue Response
Specifications are subject to change without notice.
Power Supply Requirements
WARNING. To reduce the risk of fire and shock, ensure that the main supply voltage fluctuations don't exceed 10% of the operating voltage range.
Table 3: Power Specifications for Breezy Blue Response
WARNING. This product is grounded through the grounding conductor of the power cord. To avoid electric shock, the grounding conductor must be connected to earth ground.
WARNING. Do not disable the power cord grounding connection. Without the safety ground connection, all accessible conductive parts may provide an electric shock. Failure to use a properly grounded approved outlet and the included three-conductor AC line power cable may result in injury or death.
Cleaning
Inspect the device as often as operating conditions require. To clean the exterior surface, perform the following steps:
1. Unplug the device to power off.
2. Remove loose dust on the outside of the device with a lint free cloth.
3. Use a soft cloth dampened with water to clean the device. Use an aqueous solution of 70% isopropyl alcohol for more efficient cleaning.
4. Inspect the air intake slots and clean as needed using a vacuum or soft brush.
CAUTION. To avoid surface damage to the device, do not use any abrasive or chemical cleaning agents.
CAUTION. Avoid getting moisture inside the device during external cleaning. Use only enough water/cleaning solution to dampen the cloth or swab.
Powering the Device ON and OFF
The following instructions show how to apply power to the device and turn it on and off. Refer to Figure 1 and 2.
1. Power On. Connect the power cord to the underside of the unit and to an electrical outlet. The waist status light will turn either blue or yellow, indicating that the device is powered on.
2. Power Off. Disconnect the power cord from the underside of the unit or from the electrical outlet to power off.
Functions and Operating Descriptions
Below are the default settings and instructions for using the unit without the use of a Breezy Smart Controller (sold separately). The unit will provide the user visual and audio status using the mechanisms shown in Table 4. Also see Fill Port Instructions – Filling the Solution Tank when Low for more information.
Default Factory Settings
* Push-button mode: ENABLED
* Countdown duration: 20 (or 7) seconds
* Fogging duration: 30 seconds
* Settling duration: 10 minutes
* Name: serial number
Push Button Operation
(Refer to Figure 1.)
1. Depress the fogger enable button (if already depressed, press two times).
a. A 20 (or 7) second countdown to fogging will begin, accompanied by flashing red status lights and an audible alert on Breezy Blue during which the area being treated must be cleared of all people, animals, etc.
b. A 30 second fogging will begin when the status lights turn solid red, and the fogger motor turns on.
c. After fogging is complete, the lower status lights will flash yellow to indicate the fog settling phase for 10 minutes.
d. After the settling is complete the lower status light will turn blue, and the area can be opened for fresh air circulation.
Table 4: States and Status Indicators for Breezy Blue Response
| Status | LED Ring | Button LEDs | Audio | Status Icon |
|---|---|---|---|---|
| Not currently seen by controller, but previously seen by controller | Any option below | Any Option below | | |
| Idle + Enabled | Blue | Off | | Ready to Fog |
| Idle + Disabled | Yellow | Yellow | | Disabled |
| Fogging Countdown | Red, blinking | Red, blinking | [Beep] “Alert, disinfectant fogging will begin soon. Please leave the area or press the disable button.” | Countdown |
| Fogging | Red | Red | | Fogging |
| Fog Settling | Yellow, blinking | Off | | Settling |
| Firmware updating | White, then magenta | Off | | Progress bar |
| Error | Magenta, blinking | Off | | Error |
BB01-WC Smart Controller Setup (Not included with Breezy Blue Response)
Breezy Smart Controller User manual can be found at: https://buildwithrobots.com/support
Approved BWR Solutions
Safety and operational information, including fogging and fog settling times using BWR approved solutions, can be found at Breezy Chemicals (buildwithrobots.com) and Breezy Products Support (buildwithrobots.com)
Fill Port Instructions
Filling the Solution Tank from Empty
1. Unscrew the fill port cap.
2. Ensure the screen filter is in place and free of debris.
3. Pour up to 3.8L (1 gal) of Build With Robots approved solution into tank. Stop filling if solution level is visible in the screen filter. Do not overfill.
4. Replace the fill port cap.
Filling the Solution Tank When Solution Level is Low
1. Unscrew the fill port cap.
2. Ensure screen filter is in place and free of debris
3. Slowly pour up to 3.8L (1 gal) of Build With Robots approved solution into tank until the tank icon on the controller shows the tank is full or if solution level is visible in the screen filter*. Do not overfill.
*Note - without the Breezy Smart Controller, the user will not be able to view the level of the solution in the tank. The user can temporarily remove the screen filter to visually check the fluid level in the tank. Be sure to replace the screen filter before filling the unit or replacing the fill port cap.
Emptying the Solution Tank
In the case that the solution in the tank needs to be emptied, power off the unit, remove the fill port cap and screen filter and tip the unit so the fill port is at the lowest elevation possible. Be sure to properly dispose of the solution removed from the tank (refer to solution SDS).
Troubleshooting
Table 5: Breezy Blue Troubleshooting
| PROBLEM | POSSIBLE CAUSES |
|---|---|
| Waist band light does not illuminate | Unit is not powered |
| | Damaged fuse |
| | Other |
| Fogger motor won’t turn on when started from app, but lights are illuminated on unit | Fogger disable switch is in the up position (un- depressed) |
| Fogger motor turns on, but fog does not come out | Solution level is too low |
| | Air intake ports are blocked |
| Excessive moisture builds up on unit or surrounding area after fogging | Build-up or obstruction at the fogger intake or output ports |
| Waistband Light Flashing Magenta | Fogger motor or Solenoid valves are not functioning properly |
Maintenance
Table 6: Breezy Blue Scheduled Maintenance
| Fill port screen filter | Remove and clean fill port screen filter every 10 gallons of solution or when contaminated using water and a soft brush |
|---|---|
| Exterior | Wipe down exterior of unit monthly using a cloth wetted with water or 70% isopropyl alcohol |
| Synchronize time | If using the scheduling feature, Synchronize Breezy Blue with the controller time every three months or as needed. |
LIMITED WARRANTY (USA/CANADA)
Build With Robots warrants that this product will be free from defects in materials and workmanship for a period of one (1) year from the date of shipment. If any such product proves defective during this warranty period, Build With Robots, at its option, either will repair the defective product without charge for parts and labor, or will provide a replacement in exchange for the defective product. Parts, modules and replacement products used by Build With Robots for warranty work may be new or reconditioned to like new performance. All replaced parts, modules and products become the property of Build With Robots.
In order to obtain service under this warranty, Customer must notify Build With Robots of the defect before the expiration of the warranty period and make suitable arrangements for the performance of service. Customer shall be responsible for packaging and shipping the defective product to the service center designated by Build With Robots, with shipping charges prepaid. Build With Robots shall pay for the return of the product to Customer if the shipment is to a location within the country in which the Build With Robots service center is located. Customer shall be responsible for paying all shipping charges, duties, taxes, and any other charges for products returned to any other locations.
This warranty shall not apply to any defect, failure or damage caused by improper use or improper or inadequate maintenance and care. Build With Robots shall not be obligated to furnish service under this warranty a) to repair damage resulting from attempts by personnel other than Build With Robots representatives to install, repair or service the product; b) to repair damage resulting from improper use or connection to incompatible equipment; c) to repair any damage or malfunction caused by the use of non-Build With Robots supplies; or d) to service a product that has been modified or integrated with other products.
THIS WARRANTY IS GIVEN BY BUILD WITH ROBOTS WITH RESPECT TO THE PRODUCT IN LIEU OF ANY OTHER WARRANTIES, EXPRESS OR IMPLIED. BUILD WITH ROBOTS AND ITS VENDORS DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. BUILD WITH ROBOTS' RESPONSIBILITY TO REPAIR OR REPLACE DEFECTIVE PRODUCTS IS THE SOLE AND EXCLUSIVE REMEDY PROVIDED TO THE CUSTOMER FOR BREACH OF THIS WARRANTY. BUILD WITH ROBOTS AND ITS VENDORS WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IRRESPECTIVE OF WHETHER BUILD WITH ROBOTS OR THE VENDOR HAS ADVANCE NOTICE OF THE POSSIBILITY OF SUCH DAMAGES.
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No. 37 JOURNAL
STATE OF MICHIGAN OF THE House of Representatives
96th Legislature
REGULAR SESSION OF 2011
House Chamber, Lansing, Thursday, April 28, 2011.
12:00 Noon.
The House was called to order by the Speaker Pro Tempore.
The roll was called by the Clerk of the House of Representatives, who announced that a quorum was present.
Agema—present Ananich—present Barnett—present Bauer—present Bledsoe—present Bolger—present Brown—present Brunner—present Bumstead—present Byrum—present Callton—present Cavanagh—present Clemente—present Constan—present Cotter—present Crawford—present Daley—present Damrow—present Darany—present Denby—present Dillon—present Durhal—present Farrington—present Forlini—present Foster—present Franz—present Geiss—present Genetski—present
Gilbert—present Glardon—present Goike—present Haines—excused Hammel—present Haugh—present Haveman—present Heise—present Hobbs—present Hooker—present Horn—present Hovey-Wright—present Howze—present Hughes—present Huuki—present Irwin—present Jackson—present Jacobsen—present Jenkins—present Johnson—present Kandrevas—present Knollenberg—present Kowall—present Kurtz—present LaFontaine—present Lane—present LeBlanc—present Lindberg—present
Lipton—present Liss—present Lori—present Lund—present Lyons—present MacGregor—present MacMaster—present McBroom—present McCann—present McMillin—present Meadows—present Melton—present Moss—present Muxlow—present Nathan—present Nesbitt—present O'Brien—present Oakes—present Olson—present Olumba—present Opsommer—present Ouimet—present Outman—present Pettalia—present Poleski—present Potvin—present Price—present
Pscholka—present Rendon—present Rogers—present Rutledge—present Santana—present Schmidt, R.—present Schmidt, W.—present Scott—present Segal—present Shaughnessy—present Shirkey—present Slavens—present Smiley—present Somerville—present Stallworth—present Stamas—present Stanley—present Stapleton—present Switalski—present Talabi—present Tlaib—present Townsend—present Tyler—present Walsh—present Womack—present Yonker—present
Zorn—present
Mr. Mike Jackson, of Rugged Cross Church in Hancock, offered the following invocation:
"I am a slave of Jesus Christ.
I fear the LORD, the God of heaven, who made the sea and the dry land, (Jonah 1:9) the God of the ancient Hebrew, the God of Abraham, and Isaac, and Jacob. (Exodus 3:6)
The Great I AM! (Exodus 3:14)
Blessed be the Name of the LORD. (Job 1:21)
O LORD, our Lord, how majestic is Your Name in all the earth! You who have set Your glory above the heavens. When I look at Your heavens, the work of Your fingers, the moon and the stars, which You have set in place, what is man that You are mindful of him, and the son of man that You care for him? (Psalms 8:1 & 3-4)
O LORD, You search the hearts of all men and You know them! (Psalms 139:1)
And I, O LORD, am a man of unclean lips, and I dwell in the midst of a people of unclean lips. I am undone! (Isaiah 6:5)
For, Your wrath O God is revealed from heaven against all ungodliness and unrighteousness of men, we who by our unrighteousness suppress the truth. For what can be known about You is plain to us, because You have shown it to us. For Your invisible attributes, namely, Your eternal power and divine nature, have been clearly perceived, ever since the creation of the world, in the things that have been made. So we are all without excuse.
For although we have known You, we have not honored You as God or given thanks to You, but we have become futile in our thinking, and our foolish hearts have been darkened. Claiming to be wise, we have become fools, and exchanged the glory of You, our immortal God, for images of the mortal. (Romans 1:18-23)
Have mercy on us, O God, according to Your steadfast love; according to Your abundant mercy blot out our transgressions. Wash us thoroughly from our iniquity, and cleanse us from our sin! Grant us repentance, O God, for against You, You only, have we sinned. (Psalms 51:1-4)
You who so loved the world, that You gave Your one and only Son, that whoever believes in Him should not perish but have eternal life. (John 3:16)
Praise You O Christ!
Praise You Jesus our Lord, You who have been delivered up for the sins of Your people and raised for their justification. (Romans 4:25)
O Christ, may Your people, Your sheep, hear Your voice! Call them by name Lord Jesus! (John 10:3)
O Father, that Your Son would have the reward of His sufferings, this day, in this place.
Please, show us Your glory!
Make Your goodness pass before us. Be gracious, O LORD, to whom You will be gracious, and show mercy on whom You will show mercy. (Exodus 33:18 &19)
O that at the name of Jesus every knee should bow, in heaven and on earth and under the earth, and every tongue confess that Jesus Christ is Lord, to the glory of God the Father. (Philippians 2:10-11)
Amen."
______
Rep. Lund moved that Rep. Haines be excused from today's session.
The motion prevailed.
Motions and Resolutions
Reps. Goike, Barnett, Constan, Crawford, Darany, Denby, Dillon, Heise, Hooker, Horn, Huuki, Kowall, LeBlanc, Liss, McCann, Poleski, Slavens and Tyler offered the following resolution:
House Resolution No. 69.
A resolution to declare April 28, 2011, as Community College Day in the state of Michigan.
Whereas, The first Michigan two-year college, Grand Rapids Junior College, opened in 1914 and provided high school graduates with two years of general education classes preparing them for future education or workforce experience; and Whereas, Twenty-seven additional community colleges have been established throughout the state of Michigan since 1914. The community colleges of Michigan include Alpena Community College, Bay College, Delta College, Glen Oaks Community College, Gogebic Community College, Grand Rapids Community College, Henry Ford Community College, Jackson Community College, Kalamazoo Valley Community College, Kellogg Community College, Kirtland Community College, Lake Michigan Community College, Lansing Community College, Macomb Community College, Mid Michigan
Community College, Monroe County Community College, Montcalm Community College, Mott Community College, Muskegon Community College, North Central Community College, Northwestern Michigan College, Oakland Community College, St. Clair County Community College, Schoolcraft College, Southwestern Michigan College, Washtenaw Community College, Wayne County Community College District, and West Shore Community College. These institutions educate nearly a half-million students each year; and
Whereas, Michigan community colleges have developed and evolved their educational offerings to include state-of-the-art technical and vocational programs while maintaining high academic standards; and
Whereas, Our state's community colleges are now recognized as leaders in workforce preparation, training, and retraining, as well as offering community services and cultural opportunities to Michigan communities; and
Whereas, Students investing in a Michigan community college education enjoy an attractive return on investment because of future earning capacity; and
Whereas, The role community colleges play in Michigan's economic development continues to be more vital as our state's workforce looks to compete both nationally and globally for the jobs of tomorrow; now, therefore, be it
Resolved by the House of Representatives, That the members of this legislative body declare April 28, 2011, as Community College Day in the state of Michigan. We urge appropriate observance of this occasion; and be it further
Resolved, That copies of this resolution be transmitted to the Michigan Community College Association members as a token of our appreciation.
The question being on the adoption of the resolution,
The resolution was adopted.
Reps. Nesbitt, Barnett, Brown, Constan, Crawford, Darany, Denby, Dillon, Heise, Hooker, Horn, Huuki, Kowall, LeBlanc, Liss, McCann, Poleski, Slavens and Tyler offered the following resolution:
House Resolution No. 70.
A resolution to declare April 2011 as Esophageal Cancer Awareness Month in the state of Michigan.
Whereas, With more than 16,500 new cases in the United States in 2010, esophageal cancer is one of the fastest growing cancer diagnoses in our nation; and
Whereas, Esophageal cancer is a disease in which cancer cells form in the tissues of the esophagus, often preceded by symptoms of pain or difficulty swallowing, indigestion, heartburn, hoarseness and coughing. Risk factors for esophageal cancer include gastric reflux, heavy alcohol and tobacco use; and
Whereas, Esophageal cancer is often discovered during advanced stages, but if discovered early, chances for recovery and survival are far better, and treatments for the disease include surgery, chemotherapy, radiation, laser therapy and electrocoagulation; now, therefore, be it
Resolved by the House of Representatives, That the members of this legislative body declare April 2011 as Esophageal Cancer Awareness Month in the state of Michigan. We encourage citizens to pay attention to esophageal cancer symptoms in order to promote early detection.
The question being on the adoption of the resolution,
The resolution was adopted.
Third Reading of Bills
House Bill No. 4361, entitled
A bill to amend 1967 PA 281, entitled "Income tax act of 1967," by amending the title and sections 2, 4, 6, 24, 26, 28, 30, 30f, 36, 51, 51a, 52, 91, 102, 103, 105, 110, 115, 132, 195, 201, 251, 255, 256, 265, 266, 270, 271, 278, 301, 311, 315, 322, 325, 351, 355, 365, 402, 408, 451, 455, 471, 475, 510, 512, 514, 520, 522, 526, 527a, 530, and 532 (MCL 206.2, 206.4, 206.6, 206.24, 206.26, 206.28, 206.30, 206.30f, 206.36, 206.51, 206.51a, 206.52, 206.91, 206.102, 206.103, 206.105, 206.110, 206.115, 206.132, 206.195, 206.201, 206.251, 206.255, 206.256, 206.265, 206.266, 206.270, 206.271, 206.278, 206.301, 206.311, 206.315, 206.322, 206.325, 206.351, 206.355, 206.365, 206.402, 206.408, 206.451, 206.455, 206.471, 206.475, 206.510, 206.512, 206.514, 206.520, 206.522, 206.526, 206.527a, 206.530, and 206.532), section 4 as amended by 2003 PA 52, section 26 as amended by 2003 PA 50, section 30 as amended by 2009 PA 134, section 30f as added by 2000 PA 163, sections 51 and 270 as amended by 2007 PA 94, sections 51a, 255, 256, 301, and 475 as amended by 1996 PA 484, section 52 as added by 1988 PA 1, section 110 as amended by 2003 PA 21, section 265 as amended by 1998 PA 19, section 266 as amended by 2008 PA 447, section 278 as added by 2010 PA 235, section 311 as amended by 2004 PA 199, section 315 as amended by 2003 PA 49, sections 325 and 514 as amended by 1987 PA 254, sections 351, 355, and 365 as amended by 2008 PA 360, section 402 as added and section 408 as amended by 1980 PA 169, section 451 as amended by 2003 PA 46, section 471 as amended by 2002 PA 486, sections 510 and 520 as amended by 1995 PA 245, sec tion 512 as amended by 2003 PA 29, section 522 as amended by 2000 PA 41, section 527a as amended by 2004 PA 335, and section 530 as amended by 1982 PA 480, by designating sections 1 to 532 as part 1, and by adding section 421 and part 2; and to repeal acts and parts of acts.
Was read a third time and passed, a majority of the members serving voting therefor, by yeas and nays, as follows:
Roll Call No. 88
Agema
Bolger
Bumstead
Callton
Cotter
Crawford
Daley
Damrow
Denby
Farrington
Foster
Franz
Genetski
Gilbert
Ananich
Barnett
Bauer
Bledsoe
Brown
Brunner
Byrum
Cavanagh
Clemente
Constan
Darany
Dillon
Durhal
Forlini
In The Chair: Walsh
The question being on agreeing to the title of the bill,
Rep. Stamas moved to amend the title to read as follows:
A bill to amend 1967 PA 281, entitled "Income tax act of 1967," by amending the title and sections 2, 4, 6, 24, 26, 30, 30f, 36, 51, 52, 91, 102, 103, 105, 110, 115, 132, 195, 201, 251, 255, 256, 265, 266, 270, 271, 272, 278, 301, 311, 315, 322, 325, 351, 355, 365, 402, 408, 451, 455, 471, 475, 508, 510, 512, 514, 520, 522, 526, 527a, 530, and 532 (MCL 206.2, 206.4, 206.6, 206.24, 206.26, 206.30, 206.30f, 206.36, 206.51, 206.52, 206.91, 206.102, 206.103, 206.105, 206.110, 206.115, 206.132, 206.195, 206.201, 206.251, 206.255, 206.256, 206.265, 206.266, 206.270, 206.271, 206.272, 206.278, 206.301, 206.311, 206.315, 206.322, 206.325, 206.351, 206.355, 206.365, 206.402, 206.408, 206.451, 206.455, 206.471, 206.475, 206.508, 206.510, 206.512, 206.514, 206.520, 206.522, 206.526, 206.527a, 206.530, and 206.532), section 4 as amended by 2003 PA 52, section 26 as amended by 2003 PA 50, section 30 as amended by 2009 PA 134, section 30f as added by 2000 PA 163, sections 51 and 270 as amended by 2007 PA 94, section 52 as added by 1988 PA 1, section 110 as amended by 2003 PA 21, sections 255, 256, 301, and 475 as amended by 1996 PA 484, section 265 as amended by 1998 PA 19, section 266 as amended by 2008 PA 447, section 272 as added by 2006 PA 372, section 278 as added by 2010 PA 235, section 311 as amended by 2004 PA 199, section 315 as amended by 2003 PA 49, sections 325 and 514 as amended by 1987 PA 254, sections 351, 355, and 365 as amended by 2008 PA 360, section 402 as added and section 408 as amended by 1980 PA 169, section 451 as amended by 2003 PA 46, section 471 as amended by 2002 PA 486, section 508 as amended by 1990 PA 283, sections 510 and 520 as amended by 1995 PA 245, section 512 as amended by 2003 PA 29, section 522 as amended by 2000 PA 41, section 527a as amended by 2004 PA 335, and section 530 as amended by 1982 PA 480, by designating sections 1 to 532 as part 1, and by adding part 2; and to repeal acts and parts of acts.
The motion prevailed.
Glardon
Haveman
Heise
Hooker
Horn
Hughes
Huuki
Jacobsen
Jenkins
Johnson
Knollenberg
Kowall
Kurtz
Lori
Geiss
Goike
Hammel
Haugh
Hobbs
Hovey-Wright
Howze
Irwin
Jackson
Kandrevas
LaFontaine
Lane
LeBlanc
Yeas—56
Nays—53
Lyons
MacGregor
MacMaster
McBroom
McMillin
Moss
Muxlow
Nesbitt
O'Brien
Olson
Opsommer
Ouimet
Pettalia
Poleski
Lindberg
Lipton
Liss
Lund
McCann
Meadows
Melton
Nathan
Oakes
Olumba
Outman
Rutledge
Santana
Potvin
Price
Pscholka
Rendon
Rogers
Schmidt, W.
Scott
Shaughnessy
Shirkey
Stamas
Tyler
Walsh
Yonker
Zorn
Schmidt, R.
Segal
Slavens
Smiley
Somerville
Stallworth
Stanley
Stapleton
Switalski
Talabi
Tlaib
Townsend
Womack
The House agreed to the title as amended.
Rep. Stamas moved that the bill be given immediate effect.
The motion prevailed, 2/3 of the members serving voting therefor.
______
Rep. Geiss, having reserved the right to explain his protest against the passage of the bill, made the following statement:
"Mr. Speaker and members of the House:
Mr. Speaker:
I rise today in opposition to House Bill 4361.
This bill will be a fundamental shift of burden from businesses in Michigan to Michigan's citizens. There will be an 82% reduction in corporate taxes, with Michigan's citizens taking on a higher tax rate, seniors paying more money and school children taking a substantial hit.
In my communities, this bill will result in the closing of a library Romulus, reduction of our police force in Taylor by over 50% and the safety and welfare of my constituents being unfairly compromised due to this unprecedented windfall to corporations.
This bill, but its very nature, is Voodoo economics. In these tough economic times, by passing this legislation, we are gambling our current vitality and viability on the false premise that jobs will be created - someday.
Mr. Speaker, we cannot afford to make this gamble, and I fully refute the claims that this is the answer to solve Michigan's problems. I did not come to Lansing to see our schools and communities decimated.
While many in this chamber have cloaked themselves in the tea parties rhetoric, I ask, where are they now? This bill raises taxes on Michigan's taxpayers. Period. Services are guaranteed to be reduced. Period. Is this the winning formula? Pay more, get less?
As this bill is a primary example of legislative schizophrenia, where we undo promises made just a few short years ago, I have a simple message for businesses which may choose to locate to Michigan. This windfall will not last. This policy will be revisited. Enjoy your short term gains, because as this bill breaks promises that were made to food banks, communities, schools, the film industry and many others, this bill too will be revisited in the years to come.
I urge a no vote from my colleagues. Let your constituents know you are fighting for them - That you value their safety and welfare."
Rep. Irwin, having reserved the right to explain his protest against the passage of the bill, made the following statement: "Mr. Speaker and members of the House:
This measure will drastically and immediately change tax policy in Michigan for the worse. Specifically, HB 4163 shifts the burden of funding government onto seniors and low-income workers and away from corporations. After the passage of this bill into law, the total tax obligation of corporations plummets from just over 2.2 billion dollars in this fiscal year to just over 300 million dollars in the following fiscal year (according to the House Fiscal Agency). This represents a near total elimination of tax obligation for corporations and places that burden on struggling citizens. This is an unfair and unproductive tax policy. In addition, this bill removes support for urban renewal programs such as Historic Preservation Credits and Brownfield Redevelopment credits. These programs have demonstrated effectiveness in producing jobs and economic development and eliminating these credits is yet another public policy mistake folded into this monumental bill. Finally, but not comprehensively, this bill removes the favorable tax treatment for charitable donations. This is another cruel mistake that further restricts our success as a state and the success of the charitable organizations that operate here."
Rep. Durhal, having reserved the right to explain his protest against the passage of the bill, made the following statement:
"Mr. Speaker and members of the House:
The elimination of the EITC will have a devastating effect upon families that are in poverty. The actions of the majority party speaks to their total disregard for working families that are scrambling to keep their heads above water. With the combined actions of this House of taxing pensions, attacking collective bargaining, eliminating statutory revenue sharing, reducing the length of time for unemployment benefits, removing people in need from the public assistance rolls after 48 months retroactively, and eliminating programs that help troubled families to survive, I could not in good conscience, support this or any other legislation that will hurt my district's people more."
Rep. Hovey-Wright, having reserved the right to explain her protest against the passage of the bill, made the following statement:
"Mr. Speaker and members of the House:
While I agree that changes need to be made to the tax on business, these changes are in the wrong direction. The huge tax shift from business to seniors, the working poor and middle class will not serve to grow the economy or produce jobs."
Rep. Lund, having reserved the right to explain his protest against the passage of the bill, made the following statement: "Mr. Speaker and members of the House:
While I applaud the efforts put forth here to make Michigan a more attractive state to attract and grow jobs, specifically the elimination of the Michigan Business Tax…there are some of the provisions of the bill I disagree with.
I am hopeful that as our economy recovers, jobs grow, and unemployment shrinks, we can revisit some of the provisions of these bills that are difficult to accept for my constituents.
Unfortunately, as it stands, I must vote on the bills in their entirety. As such, I must cast a No vote."
Rep. Townsend, having reserved the right to explain his protest against the passage of the bill, made the following statement:
"Mr. Speaker and members of the House:
The people of Michigan sent us here to solve the state's problems - not win philosophical arguments. Instead, we've seen nothing but a parade of legislation pushing a Far-Right agenda to strip worker rights and balance Michigan's budget by shifting the burden of paying our bills from corporations to low income and older Michiganders.
There's a double-standard at work here. When they're calling for massive tax-cuts for corporations, the Governor and the majority in this House tell us that taxes matter. We must lower people's taxes so they'll behave in ways we want. The Lt. Governor places great importance on where Michigan ranks with respect to business tax climate. Yet, when they're proposing to strip away the earned-income tax credit, they tell us that taxes don't affect the behavior of low-income people. We can raise their taxes, plunge tens of thousands into poverty and our communities and welfare rolls won't be affected. We have one set of principles for those who own corporations and another for the middle class, seniors and the working poor.
Cutting corporate taxes by $1.7 billion without any evidence that such a move will create good-paying jobs is not a balanced or pragmatic approach to our state's problems. It's ideology. It's a plan that Grover Norquist, who is the acknowledged leader of the Far Right's shrink-government-no-matter-what crusade in Washington, DC would heartily endorse. Norquist likes to brag that he wants to shrink government down to the size that would enable him 'drown it in a bathtub.' That may excite the ideologues and wealthy patrons of his cause but we should all remember that he's talking about drowning our schools, our communities, our families.
Mr. Speaker, in addition to eliminating the EITC, this bill would impose new taxes on the majority of our seniors' pensions, for which they have worked hard for all their lives and around which they have planned their retirements.
This bill also reneges on the Governor's promise to support of our center cities and urban communities. By elimination the Historic Preservation Tax Credit and the Brownfield Redevelopment Credit, they have taken away proven tools that help our urban centers evolve and thrive. These are job creators and revenue enhancers for our local communities and should not be cast aside.
We need to push the reset button on this tax-cut and work with our businesses to simplify our system, reduce compliance costs and create a tax regime that works for our businesses and our people and will stand the test of time - so we are not back here in another year or two changing it all over again."
House Bill No. 4362, entitled
A bill to amend 2007 PA 36, entitled "Michigan business tax act," by amending sections 107 and 117 (MCL 208.1107 and 208.1117), section 117 as amended by 2009 PA 142, and by adding section 500; and to repeal acts and parts of acts. Was read a third time and passed, a majority of the members serving voting therefor, by yeas and nays, as follows:
Roll Call No. 89 Yeas—57
Glardon
Nays—52
Ananich
Barnett
Bauer
Bledsoe
Brown
Brunner
Byrum
Cavanagh
Clemente
Constan
Darany
Dillon
Durhal
Forlini
Geiss
Goike
Hammel
Haugh
Hobbs
Hovey-Wright
Howze
Irwin
Jackson
Kandrevas
LaFontaine
Lane
In The Chair: Walsh
The question being on agreeing to the title of the bill,
Rep. Stamas moved to amend the title to read as follows:
A bill to amend 2007 PA 36, entitled "Michigan business tax act," by amending sections 107, 117, and 455 (MCL 208.1107, 208.1117, and 208.1455), section 117 as amended by 2009 PA 142 and section 455 as amended by 2010 PA 312, and by adding section 500; and to repeal acts and parts of acts.
The motion prevailed.
The House agreed to the title as amended.
Rep. Stamas moved that the bill be given immediate effect.
The motion prevailed, 2/3 of the members serving voting therefor.
House Bill No. 4479, entitled
A bill to amend 1969 PA 343, entitled "An act to adopt a multistate tax compact to facilitate and promote convenient, uniform, nonduplicative and proper determination of state and local tax liability of multistate taxpayers," by amending section 1 (MCL 205.581).
Was read a third time and passed, a majority of the members serving voting therefor, by yeas and nays, as follows:
Roll Call No. 90 Yeas—56
Potvin
Price
Pscholka
Rendon
Rogers
Lindberg
Lipton
Liss
Lund
McCann
Meadows
Melton
Nathan
Oakes
Olumba
Outman
Rutledge
Santana
Schmidt, R.
Segal
Slavens
Smiley
Somerville
Stallworth
Stanley
Stapleton
Switalski
Talabi
Tlaib
Townsend
Womack
547
JOURNAL OF THE HOUSE [April 28, 2011]
Nays—53
Forlini
In The Chair: Walsh
The House agreed to the title of the bill.
Rep. Stamas moved that the bill be given immediate effect.
The motion prevailed, 2/3 of the members serving voting therefor.
House Bill No. 4480, entitled
A bill to amend 1943 PA 240, entitled "State employees' retirement act," by amending section 40 (MCL 38.40), as amended by 2002 PA 99.
Was read a third time and passed, a majority of the members serving voting therefor, by yeas and nays, as follows:
Roll Call No. 91
Yeas—56
Nays—52
In The Chair: Walsh
The House agreed to the title of the bill.
Rep. Stamas moved that the bill be given immediate effect.
The motion prevailed, 2/3 of the members serving voting therefor.
______
Rep. Meadows, under Rule 31, made the following statement:
"Mr. Speaker and members of the House:
I did not vote on Roll Call No. 91 because of a possible conflict of interest."
House Bill No. 4481, entitled
A bill to amend 1980 PA 300, entitled "The public school employees retirement act of 1979," by amending section 46 (MCL 38.1346), as amended by 2002 PA 94.
Was read a third time and passed, a majority of the members serving voting therefor, by yeas and nays, as follows:
Roll Call No. 92
Yeas—56
Nays—50
Ananich
Geiss
Liss
Segal
Barnett
Goike
Lund
Slavens
Bauer
Hammel
McCann
Smiley
Bledsoe
Haugh
Meadows
Somerville
Brown
Hobbs
Melton
Stallworth
Byrum
Howze
Nathan
Stanley
Cavanagh
Irwin
Oakes
Stapleton
Clemente
Jackson
Olumba
Switalski
Constan
Kandrevas
Outman
Talabi
Darany
LaFontaine
Rutledge
Tlaib
Dillon
Lane
Santana
Townsend
Durhal
LeBlanc
Schmidt, R.
Womack
Forlini
Lipton
In The Chair: Walsh
The House agreed to the title of the bill.
Rep. Stamas moved that the bill be given immediate effect.
The motion prevailed, 2/3 of the members serving voting therefor.
______
Rep. Brunner, under Rule 31, made the following statement:
"Mr. Speaker and members of the House:
I did not vote on Roll Call No. 92 because of a possible conflict of interest."
Rep. Hovey-Wright, under Rule 31, made the following statement:
"Mr. Speaker and members of the House:
I did not vote on Roll Call No. 92 because of a possible conflict of interest."
Rep. Lindberg, under Rule 31, made the following statement:
"Mr. Speaker and members of the House:
I did not vote on Roll Call No. 92 because of a possible conflict of interest."
House Bill No. 4482, entitled
A bill to amend 1957 PA 261, entitled "Michigan legislative retirement system act," by amending section 57 (MCL 38.1057), as amended by 2002 PA 97.
Was read a third time and passed, a majority of the members serving voting therefor, by yeas and nays, as follows:
Roll Call No. 93
Yeas—109
Bumstead
Hooker
McCann
Segal
Byrum
Horn
McMillin
Shaughnessy
Callton
Hovey-Wright
Meadows
Shirkey
Cavanagh
Howze
Melton
Slavens
Clemente
Hughes
Moss
Smiley
Constan
Huuki
Muxlow
Somerville
Cotter
Irwin
Nathan
Stallworth
Crawford
Jackson
Nesbitt
Stamas
Daley
Jacobsen
O'Brien
Stanley
Damrow
Jenkins
Oakes
Stapleton
Darany
Johnson
Olson
Switalski
Denby
Kandrevas
Olumba
Talabi
Dillon
Knollenberg
Opsommer
Tlaib
Durhal
Kowall
Ouimet
Townsend
Farrington
Kurtz
Outman
Tyler
Forlini
LaFontaine
Pettalia
Walsh
Foster
Lane
Poleski
Womack
Franz
LeBlanc
Potvin
Yonker
Geiss
Lindberg
Price
Zorn
Genetski
Nays—0
In The Chair: Walsh
The House agreed to the title of the bill.
Rep. Stamas moved that the bill be given immediate effect.
The motion prevailed, 2/3 of the members serving voting therefor.
House Bill No. 4483, entitled
A bill to amend 1927 PA 339, entitled "An act to authorize the establishment of a system of retiring allowances for employes of public libraries now existing or which may hereafter be established in incorporated cities of 250,000 population or more," by amending section 5 (MCL 38.705).
Was read a third time and passed, a majority of the members serving voting therefor, by yeas and nays, as follows:
Roll Call No. 94
Yeas—56
Nays—53
Forlini
In The Chair: Walsh
The House agreed to the title of the bill.
Rep. Stamas moved that the bill be given immediate effect.
The motion prevailed, 2/3 of the members serving voting therefor.
House Bill No. 4484, entitled
A bill to amend 1992 PA 234, entitled "The judges retirement act of 1992," by amending section 720 (MCL 38.2670), as amended by 2002 PA 95.
Was read a third time and passed, a majority of the members serving voting therefor, by yeas and nays, as follows:
Roll Call No. 95
Yeas—57
Glardon
Nays—52
No. 37]
Bledsoe
Brown
Brunner
Byrum
Cavanagh
Clemente
Constan
Darany
Dillon
Durhal
[April 28, 2011] JOURNAL OF THE HOUSE
Haugh
Lund
Hobbs
Hovey-Wright
Howze
Irwin
Jackson
Kandrevas
LaFontaine
Lane
LeBlanc
In The Chair: Walsh
The House agreed to the title of the bill.
Rep. Stamas moved that the bill be given immediate effect.
The motion prevailed, 2/3 of the members serving voting therefor.
______
Rep. Stamas moved that House Committees be given leave to meet during the balance of today's session.
The motion prevailed.
By unanimous consent the House returned to the order of
Announcement by the Clerk of Printing and Enrollment
The Clerk announced the enrollment printing and presentation to the Governor on Thursday, April 28, for his approval of the following bills:
Enrolled House Bill No. 4135 at 9:48 a.m.
Enrolled House Bill No. 4248 at 9:50 a.m.
The Clerk announced that the following bills and joint resolutions had been printed and placed upon the files of the members on Thursday, April 28:
House Bill Nos. 4585 4586 4587 4588 4589 4590 4591
House Joint Resolution U
Senate Bill Nos. 347 348
Senate Joint Resolution M
The Clerk announced that the following Senate bills had been received on Thursday, April 28:
Senate Bill Nos. 174 176 181 218 219 220 265 318
Reports of Standing Committees
The Committee on Appropriations, by Rep. Moss, Chair, reported
House Bill No. 4523, entitled
A bill to make, supplement, adjust, and consolidate appropriations for various state departments and agencies, the judicial branch, and the legislative branch for the fiscal years ending September 30, 2012 and September 30, 2013; to provide for certain conditions on appropriations; and to provide for the expenditure of the appropriations.
With the recommendation that the substitute (H-1) be adopted and that the bill then pass.
The bill and substitute were referred to the order of Second Reading of Bills.
McCann
Meadows
Melton
Nathan
Oakes
Olumba
Outman
Rutledge
Santana
Smiley
Somerville
Stallworth
Stanley
Stapleton
Switalski
Talabi
Tlaib
Townsend
Womack
Favorable Roll Call
To Report Out:
Yeas: Reps. Moss, Haveman, Agema, Genetski, Kowall, Lori, Rogers, Bumstead, Cotter, Forlini, Goike, Jenkins, MacGregor, MacMaster, Poleski, Pscholka and Potvin
Nays: Reps. LeBlanc, Ananich, Bauer, Dillon, Durhal, Jackson, Lindberg and Lipton
The Committee on Appropriations, by Rep. Moss, Chair, reported
House Bill No. 4524, entitled
A bill to make, supplement, adjust, and consolidate appropriations for various state departments and agencies, the judicial branch, and the legislative branch for the fiscal years ending September 30, 2012 and September 30, 2013; to provide for certain conditions on appropriations; and to provide for the expenditure of the appropriations.
With the recommendation that the substitute (H-1) be adopted and that the bill then pass.
The bill and substitute were referred to the order of Second Reading of Bills.
Favorable Roll Call
To Report Out:
Yeas: Reps. Moss, Haveman, Agema, Genetski, Kowall, Lori, Rogers, Bumstead, Cotter, Forlini, Goike, Jenkins, MacGregor, MacMaster, Poleski, Pscholka and Potvin
Nays: Reps. LeBlanc, Ananich, Bauer, Dillon, Durhal, Jackson, Lindberg, Lipton and McCann
COMMITTEE ATTENDANCE REPORT
The following report, submitted by Rep. Moss, Chair, of the Committee on Appropriations, was received and read:
Meeting held on: Tuesday, April 26, 2011
Present: Reps. Moss, Haveman, Agema, Genetski, Kowall, Lori, Rogers, Bumstead, Cotter, Forlini, Goike, Jenkins, MacGregor, MacMaster, Poleski, Pscholka, Potvin, LeBlanc, Ananich, Bauer, Dillon, Durhal, Jackson, Lindberg, Lipton and McCann
Absent: Rep. Tlaib
Excused: Rep. Tlaib
The Committee on Appropriations, by Rep. Moss, Chair, reported
House Bill No. 4525, entitled
A bill to make, supplement, adjust, and consolidate appropriations for various state departments and agencies, the judicial branch, and the legislative branch for the fiscal years ending September 30, 2012 and September 30, 2013; to provide for certain conditions on appropriations; and to provide for the expenditure of the appropriations.
With the recommendation that the substitute (H-1) be adopted and that the bill then pass.
The bill and substitute were referred to the order of Second Reading of Bills.
Favorable Roll Call
To Report Out:
Yeas: Reps. Moss, Haveman, Agema, Genetski, Kowall, Lori, Rogers, Bumstead, Cotter, Forlini, Jenkins, MacGregor, MacMaster, Poleski, Pscholka and Potvin
Nays: Reps. LeBlanc, Ananich, Bauer, Dillon, Durhal, Jackson, Lindberg, Lipton, McCann and Tlaib
The Committee on Appropriations, by Rep. Moss, Chair, reported
House Bill No. 4526, entitled
A bill to make, supplement, adjust, and consolidate appropriations for various state departments and agencies, the judicial branch, and the legislative branch for the fiscal years ending September 30, 2012 and September 30, 2013; to provide for certain conditions on appropriations; and to provide for the expenditure of the appropriations.
With the recommendation that the substitute (H-1) and amendment be adopted and that the bill then pass.
1. Amend page 228, following line 14, by inserting:
"Sec. 662. It is the intent of the legislature that the department work with the Graafschap fire department and Laketown Township to develop a gated, limited access point along US-31 in Allegan County in order to improve emergency response times along this highway.".
The bill, substitute and amendment were referred to the order of Second Reading of Bills.
Favorable Roll Call
To Report Out:
Yeas: Reps. Moss, Haveman, Agema, Genetski, Kowall, Lori, Rogers, Bumstead, Cotter, Forlini, Goike, Jenkins, MacGregor, MacMaster, Poleski, Pscholka and Potvin
Nays: Reps. LeBlanc, Ananich, Bauer, Dillon, Durhal, Jackson, Lindberg, Lipton and McCann
COMMITTEE ATTENDANCE REPORT
The following report, submitted by Rep. Moss, Chair, of the Committee on Appropriations, was received and read: Meeting held on: Wednesday, April 27, 2011
Present: Reps. Moss, Haveman, Agema, Genetski, Kowall, Lori, Rogers, Bumstead, Cotter, Forlini, Goike, Jenkins, MacGregor, MacMaster, Poleski, Pscholka, Potvin, LeBlanc, Ananich, Bauer, Dillon, Durhal, Jackson, Lindberg, Lipton, McCann and Tlaib
The Committee on Local, Intergovernmental, and Regional Affairs, by Rep. Ouimet, Chair, reported
House Bill No. 4436, entitled
A bill to amend 1893 PA 206, entitled "The general property tax act," by amending sections 44 and 44a (MCL 211.44 and 211.44a), section 44 as amended by 2008 PA 352 and section 44a as amended by 2008 PA 498.
Without amendment and with the recommendation that the bill pass.
The bill was referred to the order of Second Reading of Bills.
Favorable Roll Call
To Report Out:
Yeas: Reps. Ouimet, Pettalia, Crawford, Daley, Hughes, LaFontaine, Shaughnessy, Rendon, Stanley, Constan, Townsend and Rutledge
Nays: Rep. Lane
COMMITTEE ATTENDANCE REPORT
The following report, submitted by Rep. Ouimet, Chair, of the Committee on Local, Intergovernmental, and Regional Affairs, was received and read:
Meeting held on: Thursday, April 28, 2011
Present: Reps. Ouimet, Pettalia, Crawford, Daley, Hughes, LaFontaine, Shaughnessy, Rendon, Stanley, Constan, Townsend,
Rutledge and Lane
Absent: Reps. Price and Stapleton
Excused: Reps. Price and Stapleton
The Committee on Judiciary, by Rep. Walsh, Chair, reported
House Bill No. 4416, entitled
A bill to amend 1949 PA 300, entitled "Michigan vehicle code," by amending section 601a (MCL 257.601a), as added by 2006 PA 549.
Without amendment and with the recommendation that the bill pass.
The bill was referred to the order of Second Reading of Bills.
Favorable Roll Call
To Report Out:
Yeas: Reps. Walsh, Heise, Gilbert, Horn, Damrow, Muxlow, Jacobsen, Pettalia, Somerville, Meadows, Constan, Oakes,
Brown, Irwin and Cavanagh
Nays: None
The Committee on Judiciary, by Rep. Walsh, Chair, reported
Senate Bill No. 19, entitled
A bill to amend 1931 PA 328, entitled "The Michigan penal code," by amending section 169 (MCL 750.169).
With the recommendation that the substitute (H-3) be adopted and that the bill then pass.
The bill and substitute were referred to the order of Second Reading of Bills.
Favorable Roll Call
To Report Out:
Yeas: Reps. Walsh, Heise, Gilbert, Horn, Damrow, Muxlow, Jacobsen, Pettalia, Somerville, Constan and Oakes Nays: None
The Committee on Judiciary, by Rep. Walsh, Chair, reported
Senate Bill No. 99, entitled
A bill to amend 1978 PA 368, entitled "Public health code," by amending section 7403 (MCL 333.7403), as amended by 2010 PA 352.
Without amendment and with the recommendation that the bill pass.
The bill was referred to the order of Second Reading of Bills.
Favorable Roll Call
To Report Out:
Yeas: Reps. Walsh, Heise, Gilbert, Horn, Damrow, Muxlow, Jacobsen, Meadows, Constan, Oakes, Brown, Irwin and Cavanagh
Nays: None
COMMITTEE ATTENDANCE REPORT
The following report, submitted by Rep. Walsh, Chair, of the Committee on Judiciary, was received and read:
Meeting held on: Thursday, April 28, 2011
Present: Reps. Walsh, Heise, Gilbert, Horn, Damrow, Muxlow, Jacobsen, Pettalia, Somerville, Meadows, Constan, Oakes, Brown, Irwin, Cavanagh and Olumba
Absent: Rep. Scott
Excused: Rep. Scott
The Committee on Appropriations, by Rep. Moss, Chair, reported
House Bill No. 4325, entitled
A bill to amend 1979 PA 94, entitled "The state school aid act of 1979," by amending sections 1, 3, 6, 11a, 11g, 11j, 11k, 11m, 15, 18, 20, 20d, 22a, 22b, 24, 24a, 24c, 26a, 26b, 31a, 31d, 31f, 32b, 32d, 32j, 39, 39a, 40, 51a, 51c, 51d, 53a, 54, 56, 61a, 62, 74, 81, 94a, 98, 99, 101, 104, 107, 109, 147, and 152a(MCL 388.1601, 388.1603, 388.1606, 388.1611a, 388.1611g, 388.1611j, 388.1611k, 388.1611m, 388.1615, 388.1618, 388.1620, 388.1620d, 388.1622a, 388.1622b, 388.1624, 388.1624a, 388.1624c, 388.1626a, 388.1626b, 388.1631a, 388.1631d, 388.1631f, 388.1632b, 388.1632d, 388.1632j, 388.1639, 388.1639a, 388.1640, 388.1651a, 388.1651c, 388.1651d, 388.1653a, 388.1654, 388.1656, 388.1661a, 388.1662, 388.1674, 388.1681, 388.1694a, 388.1698, 388.1699, 388.1701, 388.1704, 388.1707, 388.1709, 388.1747, and 388.1752a), sections 11m, 22a, 51a, and 56 as amended by 2010 PA 217, sections 11j, 24c, 26a, 39a, 81, 94a, and 104 as amended by 2010 PA 204, sections 3, 6, 11a, 11g, 11k, 15, 18, 20, 20d, 22b, 24, 24a, 26b, 31a, 31d, 31f, 32b, 32d, 32j, 39, 51c, 51d, 53a, 54, 61a, 62, 74, 98, 99, 101, 107, and 147 as amended by 2010 PA 110, section 40 as amended by 2000 PA 297, section 109 as amended by 1994 PA 283, section 152a as added by 2010 PA 217, and section 1 as added by 1979 PA 94; and by adding sections 173a, 173b, 173c, 174a, 174b, 175a, 175b, 176a, 176b, 176c, 176d, 176e, 176f, 176g, 181a, 181b, 181c, 181d, 181e, 182a, 182b, 182c, 182d, 182e, 183a, 183b, 183c, 183d, 183e, 183f, 183g, 184a,
184b, 184c, 184d, 184e, 184f, 184g, 185a, 185b, 185c, 186a, 186b, 191, 192, 193, 194, and 195; and to repeal acts and parts of acts.
With the recommendation that the substitute (H-1) be adopted and that the bill then pass.
The bill and substitute were referred to the order of Second Reading of Bills.
Favorable Roll Call
To Report Out:
Yeas: Reps. Moss, Haveman, Agema, Genetski, Kowall, Lori, Rogers, Bumstead, Cotter, Forlini, Goike, Jenkins, MacMaster, Poleski, Pscholka and Potvin
Nays: Reps. LeBlanc, Ananich, Bauer, Dillon, Durhal, Jackson, Lindberg, Lipton, McCann and Tlaib
COMMITTEE ATTENDANCE REPORT
The following report, submitted by Rep. Moss, Chair, of the Committee on Appropriations, was received and read: Meeting held on: Thursday, April 28, 2011
Present: Reps. Moss, Haveman, Agema, Genetski, Kowall, Lori, Rogers, Bumstead, Cotter, Forlini, Goike, Jenkins, MacGregor, MacMaster, Poleski, Pscholka, Potvin, LeBlanc, Ananich, Bauer, Dillon, Durhal, Jackson, Lindberg, Lipton, McCann and Tlaib
COMMITTEE ATTENDANCE REPORT
The following report, submitted by Rep. Callton, Vice-Chair, of the Committee on Health Policy, was received and read:
Meeting held on: Thursday, April 28, 2011
Present: Reps. Callton, Opsommer, Kurtz, Wayne Schmidt, Shirkey, Hooker, Huuki, Muxlow, Yonker, Liss, Darany, Segal and Hovey-Wright
Absent: Reps. Haines, Scott, Stallworth and Womack
Excused: Reps. Haines, Scott, Stallworth and Womack
Messages from the Senate
Senate Bill No. 171, entitled
A bill to make appropriations for community colleges and certain state purposes related to education for the fiscal year ending September 30, 2012; to provide for the expenditure of those appropriations; to provide anticipated appropriations for the fiscal year ending September 30, 2013; to establish or continue certain funds, programs, and categories; and to prescribe the powers and duties of certain state departments, institutions, agencies, employees, and officers.
The Senate has passed the bill.
The bill was read a first time by its title and referred to the Committee on Appropriations.
Senate Bill No. 174, entitled
A bill to make appropriations for the department of education and certain other purposes relating to education for the fiscal year ending September 30, 2012; to provide for the expenditure of the appropriations; to provide anticipated appropriations for the fiscal year ending September 30, 2013; and to provide for the disposition of fees and other income received by the state agency.
The Senate has passed the bill.
The bill was read a first time by its title and referred to the Committee on Appropriations.
Senate Bill No. 176, entitled
A bill to make appropriations for the department of environmental quality for the fiscal year ending September 30, 2012; to provide for the expenditure of those appropriations; to provide anticipated appropriations for the fiscal year ending September 30, 2013; to create funds and accounts; to require reports; to prescribe certain powers and duties of certain state agencies and officials; to authorize certain transfers by certain state agencies; and to provide for the disposition of fees and other income received by the various state agencies.
The Senate has passed the bill.
The bill was read a first time by its title and referred to the Committee on Appropriations.
Senate Bill No. 178, entitled
A bill to make appropriations for the state institutions of higher education and certain state purposes related to education for the fiscal year ending September 30, 2012; to provide for the expenditures of those appropriations; to provide anticipated appropriations for the fiscal year ending September 30, 2013; and to prescribe the powers and duties of certain state departments, institutions, agencies, employees, and officers.
The Senate has passed the bill.
The bill was read a first time by its title and referred to the Committee on Appropriations.
Senate Bill No. 181, entitled
A bill to make appropriations for the department of military and veterans affairs for the fiscal year ending September 30, 2012; to provide for the expenditure of the appropriations; to provide anticipated appropriations for the fiscal year ending September 30, 2013; to provide for certain powers and duties of the department of military and veterans affairs, other state agencies, and local units of government related to the appropriations; and to provide for the preparation of certain reports related to the appropriations.
The Senate has passed the bill.
The bill was read a first time by its title and referred to the Committee on Appropriations.
Senate Bill No. 183, entitled
A bill to amend 1979 PA 94, entitled "The state school aid act of 1979," by amending sections 3, 6, 11, 11a, 11g, 11j, 11k, 11m, 15, 18, 20, 20d, 22a, 22b, 22d, 22e, 24, 24a, 24c, 26a, 31a, 31d, 31f, 32b, 32d, 32j, 39, 39a, 40, 51a, 51c, 51d, 53a, 54, 56, 61a, 62, 74, 81, 93, 94a, 98, 99, 101, 104, 107, 109, 147, and 152a (MCL 388.1603, 388.1606, 388.1611, 388.1611a, 388.1611g, 388.1611j, 388.1611k, 388.1611m, 388.1615, 388.1618, 388.1620, 388.1620d, 388.1622a, 388.1622b, 388.1622d, 388.1622e, 388.1624, 388.1624a, 388.1624c, 388.1626a, 388.1631a, 388.1631d, 388.1631f, 388.1632b, 388.1632d, 388.1632j, 388.1639, 388.1639a, 388.1640, 388.1651a, 388.1651c, 388.1651d, 388.1653a, 388.1654, 388.1656, 388.1661a, 388.1662, 388.1674, 388.1681, 388.1693, 388.1694a, 388.1698, 388.1699, 388.1701, 388.1704, 388.1707, 388.1709, 388.1747, and 388.1752a), sections 3, 6, 11a, 11g, 11k, 15, 18, 20, 20d, 22b, 22d, 24, 24a, 31a, 31d, 31f, 32b, 32d, 32j, 39, 51c, 51d, 53a, 54, 61a, 62, 74, 98, 99, 101, 107, and 147 as amended by 2010 PA 110, sections 11, 11m, 22a, 51a, and 56 as amended and section 152a as added by 2010 PA 217, sections 11j, 22e, 24c, 26a, 39a, 81, 94a, and 104 as amended and section 93 as added by 2010 PA 204, section 40 as amended by 2000 PA 297, and section 109 as amended by 1994 PA 283, and by adding sections 12, 22f, and 166f; and to repeal acts and parts of acts.
The Senate has passed the bill.
The bill was read a first time by its title and referred to the Committee on Appropriations.
Senate Bill No. 185, entitled
A bill to make appropriations for the state transportation department and certain transportation purposes for the fiscal year ending September 30, 2012; to provide anticipated appropriations for the fiscal year ending September 30, 2013; to provide for the imposition of fees; to provide for reports; to create certain funds and programs; to prescribe requirements for certain railroad and bus facilities; to prescribe certain powers and duties of certain state departments and officials and local units of government; and to provide for the expenditure of the appropriations.
The Senate has passed the bill.
The bill was read a first time by its title and referred to the Committee on Appropriations.
Senate Bill No. 218, entitled
A bill to amend 1939 PA 288, entitled "Probate code of 1939," by amending section 43 of chapter X (MCL 710.43), as amended by 1996 PA 409.
The Senate has passed the bill.
The bill was read a first time by its title and referred to the Committee on Families, Children, and Seniors.
Senate Bill No. 219, entitled
A bill to amend 1935 PA 220, entitled "An act to provide family home care for children committed to the care of the state, to create the Michigan children's institute under the control of the Michigan social welfare commission, to prescribe the powers and duties thereof, and to provide penalties for violations of certain provisions of this act," by amending section 9 (MCL 400.209), as amended by 2004 PA 470.
The Senate has passed the bill.
The bill was read a first time by its title and referred to the Committee on Families, Children, and Seniors.
Senate Bill No. 220, entitled
A bill to amend 1939 PA 288, entitled "Probate code of 1939," by amending section 19c (MCL 712A.19c), as amended by 2008 PA 203.
The Senate has passed the bill.
The bill was read a first time by its title and referred to the Committee on Families, Children, and Seniors.
Senate Bill No. 265, entitled
A bill to amend 1949 PA 300, entitled "Michigan vehicle code," by amending section 722 (MCL 257.722), as amended by 2009 PA 146.
The Senate has passed the bill.
The bill was read a first time by its title and referred to the Committee on Transportation.
Senate Bill No. 318, entitled
A bill to amend 1909 PA 279, entitled "The home rule city act," by amending section 36a (MCL 117.36a), as amended by 2011 PA 7.
The Senate has passed the bill.
The bill was read a first time by its title and referred to the Committee on Local, Intergovernmental, and Regional Affairs.
Introduction of Bills
Rep. McBroom introduced
House Bill No. 4592, entitled
A bill to authorize the state administrative board to convey a certain parcel of state-owned property in Delta county; to prescribe conditions for the conveyance; to provide for certain powers and duties of certain state departments in regard to the property; and to provide for disposition of revenue derived from the conveyance.
The bill was read a first time by its title and referred to the Committee on Appropriations.
Reps. Glardon, Opsommer, Howze, Shaughnessy, Roy Schmidt, Johnson, Hooker, Rendon, Kandrevas and LeBlanc intro duced
House Bill No. 4593, entitled
A bill to amend 1956 PA 218, entitled "The insurance code of 1956," (MCL 500.100 to 500.8302) by adding chapter 21A.
The bill was read a first time by its title and referred to the Committee on Insurance.
Reps. Opsommer, Glardon, Howze, Shaughnessy, Roy Schmidt, Johnson, Hooker, Rendon, Kandrevas and LeBlanc introduced
House Bill No. 4594, entitled
A bill to amend 1956 PA 218, entitled "The insurance code of 1956," (MCL 500.100 to 500.8302) by adding sections 2153 and 2156.
The bill was read a first time by its title and referred to the Committee on Insurance.
Reps. Shaughnessy, Opsommer, Glardon, Howze, Roy Schmidt, Johnson, Hooker, Rendon, Kandrevas and LeBlanc introduced
House Bill No. 4595, entitled
A bill to amend 1956 PA 218, entitled "The insurance code of 1956," (MCL 500.100 to 500.8302) by adding section 2154.
The bill was read a first time by its title and referred to the Committee on Insurance.
Reps. Howze, Opsommer, Glardon, Liss, Stallworth, Talabi, Kandrevas, Townsend, Irwin, Ouimet, Melton, Cavanagh, Brunner, Stapleton, Ananich, Geiss, Hobbs, Darany, Roy Schmidt, Olumba, Durhal, Stanley, Wayne Schmidt, Hooker, LeBlanc, MacMaster, Jackson, Smiley, Yonker, Scott, Potvin and Segal introduced
House Bill No. 4596, entitled
A bill to amend 1956 PA 218, entitled "The insurance code of 1956," (MCL 500.100 to 500.8302) by adding section 2157.
The bill was read a first time by its title and referred to the Committee on Insurance.
Rep. Switalski introduced
House Joint Resolution V, entitled
A joint resolution proposing an amendment to the state constitution of 1963, by amending section 12 of article IV, to reduce salaries and expense allowances of members of the legislature.
The joint resolution was read a first time by its title and referred to the Committee on Government Operations.
Announcements by the Clerk
April 27, 2011
Received from the Auditor General a copy of the following audit report and/or report summary:
Financial audit, including the provisions of the Single Audit Act as applicable to the Michigan Strategic Fund (MSF), a discretely presented component unit of the State of Michigan, for the period October 1, 2008 through September 30, 2010.
Gary L. Randall Clerk of the House
______
Rep. O'Brien moved that the House adjourn. The motion prevailed, the time being 3:30 p.m.
The Speaker Pro Tempore declared the House adjourned until Tuesday, May 3, at 1:30 p.m.
GARY L. RANDALL Clerk of the House of Representatives
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Agreement to Terms and Conditions of the Wafi Rewards Program
The Wafi Rewards Program ("Wafi Rewards") is administered by Wafi Property LLC, located at Wafi City, Umm Hurair 2, Dubai, UAE.
About These Terms & Conditions (T&Cs)
By downloading the Wafi Rewards mobile application ("Wafi Rewards App") and creating an account via the Wafi Rewards App for the Wafi Rewards Program, you fully and unconditionally agree to accept the Wafi City Terms and Conditions and Privacy Policy available at https://www.wafi.com/privacy-policy/ and these Wafi Rewards Terms and Conditions ("T&Cs"). By registering to be a Wafi Rewards Member, you understand and agree to abide by the decisions of participating merchants and/or Wafi City Management as administrator of the Wafi Rewards Program including, but not limited to, regarding eligible purchases and the awarding of Rewards, which are final and binding in all matters related to the Wafi Rewards Program.
These T&Cs govern your use of the Wafi Rewards Program and the Wafi Rewards App whether you act in a personal or professional capacity. If you act in a professional capacity on behalf of an organization (for example, your employer), you represent and warrant that you are authorized to accept and agree to these T&Cs on behalf of that organization which shall be bound by these T&Cs, and "user", "you" and "your" shall be construed accordingly.
Wafi City Management's failure to enforce any term of these T&Cs shall not constitute a waiver of that term or any other term in these T&Cs. In the event that any provision of these T&Cs is determined to be invalid or otherwise unenforceable or illegal, these T&Cs shall otherwise remain in full force and effect and shall be construed in accordance with these terms as if the invalid or unenforceable provision were eliminated from the T&Cs.
Your participation in the Wafi Rewards Program, and your use of the Wafi Rewards App, are subject to these T&Cs, and we ask that you read them carefully. By using any part of the Wafi Rewards Program or the Wafi Rewards App, you will be deemed to have accepted these T&Cs in full and to agree to abide by them whether or not you are registered as a User. If you do not agree to these T&Cs, you must immediately cease using the Wafi Rewards Program and the Wafi Rewards App as you are not entitled to use any part of it.
We may revise these T&Cs at any time by posting an update on this page. By continuing to participate in the Wafi Rewards Program and using the Wafi Rewards App after any such change, you agree to be bound by the new T&Cs. You should regularly check for updates, as indicated by the "Last updated" date at the top of these T&Cs.
Your Obligations
By accepting these T&Cs, downloading the Wafi Rewards App, and creating your Wafi Rewards account, you are agreeing to:
- Use the Wafi Rewards App only for the lawful purpose for which it is intended;
- Provide information that is accurate and complete;
- Safeguard your Wafi Rewards Program account credentials and Wafi Rewards App login information;
- Notify Wafi City Management immediately if your account or login credentials are, or appear to be, compromised;
- Not do anything to impair the functionality or availability of the Wafi Rewards App.
Wafi Rewards Program Details
The Wafi Rewards Program provides Users (defined as individuals who have registered to participate in the Wafi Rewards Program) with rewards earned through purchases at participating stores within Wafi City. The Wafi Rewards Program also provides Users with special promotions and membership benefits. The Wafi Rewards Program includes the downloadable Wafi Rewards App to track rewards and provide for redemption of earned rewards by Users.
Members of the Program may be able to receive benefits, discounts, and special offers (each an "Offer") from stores which are participating in the Program (each a "Participating Store").
The Wafi Rewards Program will:
- Provide details of the Wafi Rewards Program and the Participating Stores;
- Keep an accounting of your eligible transactions and available rewards;
- Keep you informed about relevant promotions and offers;
- Provide opportunities for you to redeem your rewards through the Wafi Rewards App;
- Provide you with information about how you can benefit from your Wafi Rewards Program membership.
For a list of Participating Stores, please visit the Wafi Rewards App and navigate to the directory where the Participating Stores will be highlighted. The list of Participating Stores may change from time to time. Not all stores will participate in the Wafi Rewards Program. For purchases made within Wafi City from non-Participating Stores, Wafi Rewards Members should bring the receipt for such purchases to Wafi City Guest Services to have the purchases added to their Wafi Rewards account.
If the Wafi Rewards App and the Wafi Rewards Program provide, and you enable location tracking on your device for the Wafi Rewards App, you will benefit from our location features, including notifications about useful information when you arrive at Wafi City such promotions and special benefits.
Points and Rewards for Wafi Rewards Program
As a member of the Wafi Rewards Program, you will earn one Point for every one AED spent at participating stores. Points are allocated based on the total transaction value after excluding any discounts. These points can be accrued from purchases made at full price as well as on promotional and markdown items.
Points have no monetary value and cannot be sold or assigned to others or used as value in any other transaction other than those facilitated by Wafi Rewards in accordance with the T&Cs. You understand and accept that the Points are loyalty points for the sole purpose of redemption within Wafi Rewards Program, and the Points cannot be redeemed for cash nor considered either exchangeable to monetary currency nor that it represents monetary assets of the Member. Wafi City Management may cancel any earned Points or the whole or any part of Wafi Rewards as and when it deems fit without notice and without liability.
It's important to note that the points accumulated have no cash value and will expire after 365 days of earning inactivity. Wafi City Management is not responsible for any delays or errors in the crediting of points.
Once you have joined the program, you can redeem them for various rewards, such as vouchers, discounts on purchases, promotional offers, or selected products at participating stores. However, rewards and discounts may vary by brand and store, so it's advisable to contact the store directly for more details.
Points will be visible on a member's account within 24 hours of the transaction in store. The following are excluded for the earning of points: Financial institutions such as banks and exchange services, telecommunication services, travel agencies, governmental services such as Dubai Courts, Ministry of Tolerance, charitable organizations, temporary kiosks and events in the context of punctual exhibitions, etc. Wafi City Management reserves the right to edit the list of point earning partners at any time. Please consult with Wafi Guest Services for more details.
When points are redeemed by availing Wafi Rewards, such as vouchers, discounts on purchases, promotional offers, or selected products at participating stores, they are deducted from your balance. Standard brand or store refund policies apply, and points will not be refunded if goods or services are returned or exchanged.
This structured approach to earning and redeeming points is designed to enhance your shopping experience at Wafi City, providing you with exclusive benefits and rewards as a token of appreciation for your loyalty.
Offers Provided By Participating Stores
The Wafi Rewards App will notify you of offers or promotions ("Offers") at Participating Stores. Any issues that may arise relating to a Promotion or Offer from a Participating Store should first be directed to the Participating Store. If you are unable to satisfactorily resolve the dispute, further assistance may be requested from Wafi City Management through Guest Services.
The Offers available to you will be presented on the Wafi Rewards App and you will also receive push notifications and emails about the Wafi Rewards Program. The Offers you have access to may vary from time to time, and each User may receive different Offers.
Offers are subject to availability and subject to change. It may sometimes be necessary for a Participating Store to make changes to an Offer after the Offer or Promotion has already been published. From time to time, it may be necessary, and is within their discretion, for Wafi City Management or a Participating Store to withdraw an Offer or Promotion from the Wafi Rewards Program without advance notice.
To redeem an Offer, you should follow the Wafi Rewards App's instructions for redemption.
Each Offer or Promotion will be subject to additional terms and conditions established by the Participating Store including Offer expiration dates, exclusions, qualifying criteria, and/or rules for combining offers. To avoid disappointment, please read the additional Terms and Conditions for the selected Offers or Promotions carefully on the Wafi Rewards App.
You may be prevented from redeeming an Offer if:
- The Participating Store has reason to suspect fraud or misconduct; or
- The Offer is being used or combined with other offers or discounts improperly.
General Conditions: Suspension or Termination of the Wafi Rewards Program Wafi City Management, as administrator of the Wafi Rewards Program, reserves the right, in its sole discretion, to terminate, modify, or suspend the Wafi Rewards Program or any part of it at any time at its discretion and without reason. Further, Wafi City Management is entitled to immediately suspend and/or terminate your Wafi Rewards Program account and/or access to the Wafi Rewards Program if:
- Wafi City Management terminates the Wafi Rewards Program;
- You fail to comply with these T&Cs; or
- Your use of the Wafi Rewards Program or Wafi Rewards App appear to be fraudulent, inappropriate, or illegal.
You will not be able to redeem Offers while your account and/or access to the Wafi Rewards Program is suspended or terminated. In the event that Wafi City Management does terminate the Wafi Rewards Program, Rewards accrued through the date of Wafi Rewards Program's termination will be honoured at the discretion of the relevant retailer and pursuant to the Terms of the Program.
Wafi City Management, in its sole discretion, reserves the right to disqualify any User or member it believes to be tampering with the operation of the Wafi Rewards Program or to be acting in violation of these T&Cs. Any attempt by any person to deliberately undermine the legitimate operation of the Wafi Rewards Program may be a violation of criminal and/or civil law and, should such an attempt be made, Wafi City Management reserves the right to prosecute and/or seek damages from any such person to the fullest extent permitted by law.
Additional Disclaimer and Limitation of Liability Wafi City Management is not responsible for Participating Stores that do not accurately record, report, or input purchase information eligible for rewards under the Wafi Rewards Program. If you believe that your eligible purchases have not been accurately recorded, or your eligible purchase was at a non-Participating Store, the User should provide their proof of purchase to the Wafi City Guest Services group as above identified for assistance with verification of the purchase. No mechanically reproduced, illegible, incomplete, forged, software-generated, or otherwise multiple transactions will be accepted.
Wafi City Management is not responsible for interrupted, inaccessible, or unavailable networks, servers, satellites, Internet service providers, websites, or other connections; or for miscommunications, failed, jumbled, scrambled, delayed, or misdirected computer, telephone, or cable transmissions; or for any technical malfunctions, failures, difficulties, or other errors of any kind or nature; or for the incorrect or incomplete capture of information, or the failure to capture any information. In the event of any discrepancy or inconsistency between these T&Cs and statements contained in any Wafi Rewards Program-related materials, including but not limited to print or online advertising, these T&Cs shall prevail, govern, and control.
Wafi City Management accepts no liability for:
- Any Offers made by a Participating Store;
- The failure of a Participating Store to honor an Offer;
- Loss of any anticipated savings or discounts;
- The failure of a Participating Store to operate systems necessary to redeem an Offer; or
- The nature or suitability of any goods or services which you purchase from a Participating Store.
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Mountain Fen Distribution, Types and Restoration Priorities, San Juan Mountains, Colorado, USA
Rod A. Chimner & Joanna M. Lemly & David J. Cooper
Received: 27 October 2009 /Accepted: 29 March 2010 /Published online: 25 April 2010 # Society of Wetland Scientists 2010
Abstract Mountain fens are vital ecosystems for habitat, biodiversity, water and carbon cycling, but there is little comprehensive information on their distribution, abundance or condition in any region of the western U.S. Our study objectives were to: 1) evaluate fen distribution, abundance and characteristics in the San Juan Mountains of Colorado, 2) quantify disturbances, and 3) prioritize restoration needs of fens. We mapped 624 fens in 37 watersheds and collected field data on 182 of these fens. We estimated that approximately 2,000 fens occur in the San Juan Mountains, primarily in the subalpine zone at an average elevation of 3,288 m. Fens ranged from 0.2 to 20.5 ha in size, peat thickness ranged between 0.40 to >4.00 m, and surface slope ranged from 0–21%. Groundwater pH ranged from 3.1–7.6 and Ca +2 from 1–341 mg/L, reflecting the diverse geochemistry of watershed parent materials. We identified 188 vascular and 63 bryophyte taxa, and classified the 309 sampled stands into 20 plant communities that formed along complex hydrogeomorphic and geochemical gradients. The majority of fens were in excellent condition;
Electronic supplementary material The online version of this article (doi:10.1007/s13157-010-0039-5) contains supplementary material, which is available to authorised users.
R. A. Chimner (*) School of Forest Resources and Environmental Sciences, Michigan Technological University, 1400 Townsend Drive, Houghton, MI 49931, USA e-mail: email@example.com
J. M. Lemly : D. J. Cooper Department of Forest, Rangeland and Watershed Stewardship, Colorado State University, Fort Collins, CO 80523, USA
however 10% of our sampled fens had high to very high restoration potential due to impacts from roads, mining, and ditching.
Keywords Disturbances . Fens . Peatlands . Restoration . Vegetation
Introduction
Mountainous regions cover nearly a quarter of the earth's land area and, although they house only 10% of the world's population, are heavily utilized for forestry, livestock grazing, energy and mineral production, and recreation (Millennium Ecosystem Assessment 2005). Mountain ranges are also globally important for carbon storage and water cycling (Viviroli et al. 2003; Schimel and Braswell 2005). Many of the world's major rivers originate in mountains because of high precipitation rates from orographic lifting. These processes support a high density of rivers and a vast array of wetlands, including riparian areas, wet meadows, and marshes (Cooper and Andrus 1994; Gerdol 1995; Clausen et al. 2006; Chimner et al. 2007). Among mountain wetlands, peatlands can be the most abundant type in many high-elevation regions (Cooper and Andrus 1994).
In the southern Rocky Mountains of the United States, all peatlands are classified as fens, supported by groundwater input and not solely by direct precipitation (Cooper and Andrus 1994). These fens are often areas of high biodiversity and are regionally important refugia for rare plant and animal species that are otherwise limited to colder environments of boreal and arctic regions (Cooper 1996). Species such as Altai cottongrass (Eriophorum altaicum), buckbean (Menyanthes trifoliata), purple cinquefoil (Comarum palustre), and Sphagnum balticum occur within the
southern Rocky Mountains, disjunct by hundreds or thousands of km from their main ranges in boreal North America (Cooper et al. 2002; Weber 2003). Rocky Mountain peatlands also provide important habitat for elk (Cervus elaphus), moose (Alces alces), and many species of amphibians and migratory birds.
Mountain fens have long been altered by human activities, but little information exists on the types of impacts that have occurred and the proportion of fens in need of restoration. Disturbances may reverse the 10,000+ year old process of peat accumulation (Chimner and Cooper 2002) and lead to peatland destruction in many areas (Cooper et al. 1998; Chimner and Cooper 2003a; b; Patterson and Cooper 2007). Common anthropogenic disturbances that have been noted in western North American fens include hard rock and gravel mining, water reservoir construction, irrigation diversions for agricultural water use, trans-basin water diversions, road construction, timber and energy development, livestock grazing, housing and ski area development, and recreation (Cooper and Wolf 2006; Patterson and Cooper 2007; Zier and Baker 2006). Despite the ecological and hydrologic importance of mountain fens, there is little comprehensive information on their distribution, abundance, aerial extent, and type in any region of North America. Because many fens lack navigable waters, they may have little or no federal, state, or local protection and are often overlooked in largescale wetland and watershed protection programs (Tiner et al. 2002). Our objectives were to: 1) determine the distribution, abundance, and characteristics of fens, 2) document the range of disturbances to fens, and 3) prioritize restoration needs for fens in the San Juan Mountains in southern Colorado.
Methods
Study Area
The San Juan Mountains (Fig. 1) are geologically complex, with a core of Precambrian crystalline rocks, localized areas of volcanism and intrusive igneous rock, and sedimentary rocks along the range margins. Large areas of unsorted Quaternary deposits of glacial, colluvial, and alluvial origin occur in valleys and on hillslopes (Winters et al. 2003). The San Juan Mountains are the highest elevation range of the entire Rocky Mountain system, with 14 peaks reaching over 4,270 m elevation, and hundreds of peaks over 3,660 m. Glaciated high elevation valleys have broad U-shapes with numerous tarns, cirques, and moraines, while narrow lower elevation valleys have been cut by rivers. Higher elevation areas have snowmelt driven hydrologic regimes, and lower elevations are rainfall driven (Winters et al. 2003).
Fen Identification and Mapping
We used natural color aerial photograph stereo pairs and digital aerial imagery to identify wetlands with brownish colors and peat generated landforms typical of fens in our region. We mapped and field verified fens in 11 adjacent watersheds in two Colorado counties (San Miguel and Ouray) to perfect methods for fen identification. We then mapped and visited fens in randomly selected watersheds across the entire mountain range, which covers 44,194 km 2 . We used the National Hierarchical Framework of Aquatic Ecological Units in North America (Maxwell et al. 1995) and the National Watershed Boundary Data sets Federal Standards for Delineation of Hydrologic Unit Boundaries to identify HUB 6 th level watersheds. We developed a watershed classification using agglomerative cluster analysis based upon the percent of each bedrock type (calcareous, intrusive igneous, and volcanic), elevation categories, and climate in each watershed (Winters et al. 2003; Wohl et al. 2007). A total of nine watershed types were identified, and two watersheds of each type were randomly selected for inventory. We also added nine additional HUB 6 th level watersheds with unique geological characteristics. Within each watershed, the boundary of each fen was delineated with the GIS software package ArcView 9.2 (ESRI 2006). We field verified our image interpretation by investigating
soils and hydrologic regime, and corrected fen polygon boundaries. We determined the ownership, elevation, and exact location of each fen from available GIS layers.
Field Assessments
In many watersheds, all mapped fens were field verified and sampled. In watersheds with large numbers of fen polygons, we visited a subsample by selecting only a few from areas with large clusters of similar fen types. Subsamples were chosen to maximize the diversity of fens sampled and to not oversample areas with large numbers of fens. A total of 182 fens were field sampled during June–August 2006 and 2007. We defined fens as wetlands with organic soils at least 40 cm thick and used the Natural Resources Conservation Service's Soil Taxonomy to identify organic soils (Soil Survey Staff 2006). In all field verified fens, we determined location and ownership, overall site characteristics, condition and disturbances, and collected stand-level vegetation composition data. All data were entered into a Palm Pilot® using the software program EcoNab (NIISS 2006). Data were downloaded each day into Microsoft Access® creating an easily accessible electronic database.
In each study fen, homogenous stands (usually between 1–5 stands per fen) of vegetation were identified and data were collected within these stands. A 40-cm deep pit was opened with a shovel in each stand, the pH and temperature of groundwater that filled the hole was measured using an YSI 100 handheld pH meter, and water table depth was recorded once it equilibrated. One ground water sample was collected from each fen, stored in a 20-ml scintillation vial, sealed immediately, and kept refrigerated until analyzed by the U.S. Forest Service, Grand Rapids, Minnesota, for major anion and cation concentrations. A soil sample from 30–40 cm depth was collected from each site for analysis of percent organic matter content by loss on ignition (Belyea and Warner 1996). The approximate thickness of the peat body was measured using a tile probe and the level of peat decomposition was determined with the von Post scale (Rydin and Jeglum 2006). Percent slope was measured with a clinometer and each fen was placed into a hydrogeomorphic class of either sloping or depression (Brinson 1993).
Vegetation composition within each stand was analyzed using the relevé method (Mueller-Dombois and Ellenberg 1974). The canopy cover of each vascular plant and bryophyte species was visually estimated and voucher specimens of any unknown species were collected. Sphagnum spp. were identified by Richard Andrus (Binghamton University, New York, BING) and all other mosses by William Weber (University of Colorado, Boulder, (COLO), where vouchers were deposited. Taxonomy from the Flora of Western Colorado was followed (Weber and Wittmann 2001).
Vegetation data from homogenous stands were classified using agglomerative cluster analysis with Sørensen distance measure and flexible beta linkages method with β=-0.25, using the computer program PC-ORD 5.0 (McCune and Mefford 2006). Indicator species analysis was used to prune the dendrogram and optimize the number of clusters (McCune and Grace 2002). We averaged p-values across all species for each cluster level using Monte Carlo Analysis and the cluster level with the lowest average pvalue was used as the optimal level. Ordination of vegetation, soil and water chemistry, and environmental variables was conducted using Nonmetric Multidimensional Scaling (NMS) in PC-ORD 5.0 using Sørensen distance measure and 3-axes, as determined by the stress test (McCune and Grace 2002).
Disturbances and Restoration Potential
We identified disturbances on aerial imagery, topographic maps, and during site visits. The level of severity of each disturbance was assessed by the proportion of fen it impacted and the intensity of the impact. Disturbances were ranked by severity, those that impacted <1% of the fen were ranked as low, 1–5% as moderate, 5–15% as high, and >15% as very high. We also assessed hydrologic disturbances, including headcuts, gullies, ditches, diversions, and road cuts to fens by estimating the proportion of area that was altered. Vegetation disturbance was assessed by identifying the proportion of bare soil or the presence of invasive or non-wetland plant species, and the degree of grazing or browsing. Soil disturbance was the proportion of fen with bare soil, mineral material overlying peat soil, or undergoing erosion.
We assessed each site's restoration priority as very high, high, low, or very low based on the likely ease or difficulty of restoration and the rarity or commonness of the fen type. Sites considered high or very high restoration priorities could easily be restored or were rare fen types. Sites rated as low or moderate restoration priority were slightly impacted or so severely impacted that restoration would be cost prohibitive.
Results
Mapping
We preliminarily identified 624 sites as fens on aerial imagery in the 37 study watersheds (Fig. 1). Our field surveys indicate that our delineation had an accuracy of 92% for correctly identifying polygons that were fens. We altered boundaries on a number of polygons in the field, and a few polygons were added. We estimate that
approximately 10% of fens were missed in the image based delineation. Mapped sites ranged from 0.2 to 20.5 ha in area, with a mean of 1.2 ha and a median of 0.8 ha. Site elevations ranged from 2,532 to 3,832 m. Approximately 90% of fens occurred above 3,000 m elevation, with an average elevation of 3,288 m (Fig. 2a).
Physical and Chemical Characteristics
We visited 182 fens (30% of all mapped fens) and analyzed 309 homogenous stands in these fens (Fig. 1). Mean peat thickness was 1.25 m (std=0.78) and ranged from 0.40 to >4.00 m. We likely underestimated the thickest peat bodies because our soil probe was 4 m long. Mean soil organic matter content was 60% (std=15%), which is approximately 30% organic carbon (Chimner unpublished data). Peat
decomposition, as indicated by the von Post scale, averaged 5, moderately decomposed, with Sphagnum peat being least decomposed and drained Carex peat the most decomposed. Approximately 28% of fens had formed in depression landforms and 78% on slopes. The mean fen slope was 5% and the maximum 21% (Fig. 2b).
Groundwater pH in most fens ranged from 5.0 to 6.5; although, several fens were basic with pH>7.0 and a number were highly acid with pH<4.5 (Fig. 2c). Groundwater pH varied due to watershed bedrock composition and surficial deposit geochemistry (Table 1). Watersheds with some calcareous bedrock had the highest concentrations of Ca +2 , Mg +2 , and Na + in ground water. Intrusive igneous watersheds had the highest concentrations of K + , while volcanic watersheds had high Fe +3 .
Vegetation
We identified 188 vascular and 63 bryophyte species in the study plots (Supplementary Material, Appendix A). A total of 30 species of Carex were found (34 in Cyperaceae) and ∼80% of the stands were Carex-dominated (>50% cover). Carex aquatilis was the most common species found, occurring in 65% of plots. Rhynchospora alba was found in one fen, and this genus was not previously known for the Rocky Mountains south of Idaho (Flora of North America Editorial Committee 2002). Unlike many regions with peatlands (Rydin and Jeglum 2006), fens in the Rockies have little tree cover (Johnson 1996). Only 5% of the study fens supported any trees, and only one species, Picea engelmannii, commonly occurred in fens. Most of the forested fens analyzed occurred at the margins of large fen complexes. Many fens were shrub covered. However, instead of species in the family Ericaceae, as is common in most boreal peatlands, southern Rocky Mountain fens are covered by six species of Salix, with Salix planifolia being most common. Bryophyte cover and diversity was dominated by mosses in the family Amblystegiaceae with 18 species and Warnstorfia fluitans was the most common member of this family. Other common brown mosses included Aulacomnium palustre, Ptychostomum pseudotriquetrum, and Climacium dendroides.
Hierarchal cluster analysis separated the 309 stands into 20 community types (Table 2). The communities are divided into three main groups based on geochemistry (rich, intermediate, and iron fens) and secondarily divided into the hydrogeomorphic classes of sloping and depressional fens (Table 2). We classified vegetation communities with an average pH >6.5 as rich fens. These communities generally also had high ground water Ca +2 and Mg +2 concentrations, although there were a few with lower concentrations. Fens with pH between 5 and 6.5 were classified as intermediate fens and had low Ca +2 and Mg +2
Table 1 Mean (±se) water chemistry (mg/L) of ground water by dominant watershed rock type
Letters denote significant difference (P<0.05) between watershed types as tested by ANOVA using Tukey's post-hoc test
concentrations. Fens with low pH (<5) in the study area were iron fens, not ombrotrophic bogs, and occurred in watersheds with outcroppings of highly mineralized iron pyrite that oxidizes to form sulfuric acid, creating ground water with naturally low pH but high Ca +2 and Mg +2 concentrations. The majority of fens in our study were intermediate fens (66% of total fens sampled), followed by rich fens (23%) with iron fens being rare (1%).
The most common species in iron fens were Betula glandulosa, Carex aquatilis, and a continuous carpet of Sphagnum mosses. Ten species of Sphagnum were identified in iron fens including S. obtusum, which was not been previously known for the Rocky Mountains (Andrus personal communication). We also found additional populations of another rare peat moss Sphagnum balticum, which is disjunct from its main range in boreal regions of Canada (Cooper et al. 2002). The most common Sphagnum species were S. russowii, S. fimbriatum, and S. angustifolium.
Table 2 Plant community types grouped by geochemistry (rich, intermediate, and iron) and landform (sloping and depression)
Group
Plant Community
Rich Fens:
Sloping Rich Fens
1.1: Salix monticola/Alnus incana
1.2: Salix wolfii/Pentaphylloides floribunda
1.3: Carex buxbaumii/Eriophorum angustifolium
1.4: Eriophorum angustifolium/Juncus albescens
1.5: Psychrophila leptosepala/Primula parryi
Depression Rich Fens
2.1: Carex utriculata/Galium trifidum
2.2: Carex magellanica/Carex utriculata
2.3: Carex limosa/Menyanthes trifoliata
Intermediate Fens:
Sloping Intermediate Fens
3.1: Picea engelmannii/Calamagrostis canadensis
3.2: Salix planifolia/Carex aquatilis
3.3: Eleocharis quinqueflora/Carex aquatilis
3.4: Carex illota/Pedicularis groenlandica
3.5: Carex aquatilis/Psychrophila leptosepala
3.6: Carex aquatilis/Pedicularis groenlandica
3.7: Carex saxatilis/Scorpidium cossonii
3.8: Eleocharis quinqueflora/Warnstorfia fluitans
Depression Intermediate Fens
4.1: Carex canescens/Calamagrostis canadensis
4.2: Carex lasiocarpa/Drosera anglica
Iron Fens:
5.1: Betula glandulosa/Sphagnum russowii
5.2: Carex aquatilis/Sphagnum fimbriatum
Community types named by a combination of dominant species and indicator species
More intermediate fen communities (10) than rich fen communities (8) or iron fen communities (2) occur in the study area, and more sloping fen (14) than depression fen (6) community types occur (Table 2). Sloping fens had higher total vascular and bryophyte species richness and diversity than depression fens, but there was little difference between rich sloping fens and intermediate sloping fens, or between rich depression fens and intermediate depression fens (Table 3). Iron fens had the lowest number of total and vascular species, although many of their species are regionally rare.
Multivariate Nonmetric Multidimensional Scaling (NMS) analysis had a 3-dimensional solution of 21.45 and a final instability 0.0038 (Fig. 3). Axis 1 had an r 2 of 0.19 and was most correlated to elevation (r 2 =0.29) and Ca +2 concentrations in ground water (r 2 =0.14; Table 4). Axis 2 had an r 2 of 0.18 and was most correlated with elevation (r 2 =0.15) and slope (r 2 =0.12). Axis 3 had an r 2 of 0.16 and was most correlated with pH (r 2 =0.17).
Disturbance and Restoration Potential
Forty-two (23%) of the fens visited had some level of disturbance. The most severe disturbances were from ditching, mining, urban development, and roads, with roads being the most common disturbance (Table 5). The least severe disturbances were from native animal use (e.g., elk wallows) and recreational uses (e.g., skiing, biking). Disturbances impacted vegetation, hydrological functions, soil stability, or all three.
Five fens were classified as having very high restoration priority and 13 additional fens as having a high restoration priority (data not shown). Six fens classified as having high or very high restoration priority were rare iron fens (out of
Table 3 Total number of species (T) present and Simpsons Diversity Index (D) of major fen vegetation types. Separated by all species, vascular species and bryophytes
15 iron fens surveyed). Nineteen fens were ranked as medium and the remaining 145 fens as low restoration priority. All but one of the low restoration priority fens were in good or excellent condition and did not require restoration. However, one fen was in poor condition from a highway bisecting it and was ranked as low restoration priority due to the cost of restoration. Common disturbances ranked as having high or very high restoration priorities were from small roads, mining, and ditching. However, some fens with severe disturbance from roads or mining were ranked as medium or low restoration priorities due to the high cost of restoration required to fix these sites.
covering 2,400 ha, or 1% of area. Few studies have estimated fen abundance on the scale of an entire mountain region, but information from this and other studies indicate that fens are numerous in mountain regions of western North American (Chadde et al. 1998; Cooper and Wolf 2006; Lemly 2007; Patterson and Cooper 2007).
Discussion
Mountain Fen Characteristics
We estimate that approximately 2,000 fens occur in the subalpine zone (∼3,000–4,000 m) of the San Juan Mountains,
Mountain peatlands also occur along the entire length of the Andes, and in tropical and subtropical regions including the pàramo of Colombia, Venezuela, and Ecuador (Samaniego et al. 1998; Chimner and Karberg 2008); the puna in Chile, Peru, and Boliva (Preston et al. 2003; Earle et al. 2003; Cooper et al. 2010); central Andes and Patagonia (Coronato et al. 2006; Chimner et al. 2007); and Tierra del Fuego where peatlands cover large areas (Kleinebecker et al. 2008). Mountain peatlands also occur in other temperate mountain ranges including the Alps, Himalayas, in Japan, and the Southern Alps of New Zealand (Gerdol 1995; Wahren et al. 2001; Dickinson et al. 2002; Chen et al. 2008; Koch et al. 2008; Fujita et al. 2009), as well as Hawaii, Africa and Indonesia (Islebe et al. 1996; Chimner 2004).
Fens in mountain regions are typically small in size because they are limited by steep slopes and the small size of watersheds supporting them (Patterson and Cooper
Table 4 Pearson (r 2 ) and Kendall ranked (tau) correlations of environmental values with ordination axes
Table 5 Disturbance categories, number of times disturbance was encountered during field surveys, and average severity level of disturbance (1 = lowest severity and 5 = most severe impact)
Categories ranked by average severity
Numbers are based on stand level data and each site can have more than one disturbance
2007). The average fen in our study was 1.2 ha in area, which is similar to fen size in other mountain ranges in the western U.S., with the largest fens generally being less than 100 ha (Cooper and Wolf 2006; Lemly 2007).
Mountain fen peat bodies are relatively thin, averaging 1–1.25 m thick in the Rockies and Sierra Nevada (Cooper and Wolf 2006; Lemly 2007; this study, Chimner unpublished data). However, some mountain peatlands are >4 m in the Rocky Mountains, and >7 m in the Peruvian Andes (Cooper et al. 2010). Mountain fen soils typically have high mineral and low organic carbon content (Chimner and Karberg 2008). Soils from 419 Colorado fens average 30% organic carbon (60% soil organic matter) (this study, Chimner unpublished data), which is similar to the carbon content of Sierra Nevada fen soils (Cooper and Wolf 2006). However, carbon accumulation rates can be quite high in mountain fens because soil bulk density is typically high (Chimner et al. 2002).
Bogs do not occur in our study area. Mountain bogs occur only in mountain ranges with a hypermaritime climate (e.g., coastal areas of British Columbia, Canada, and southeastern Alaska) that receive ample rain and have high humidity throughout the year (Asada et al. 2003). Mountain regions with dry summers (e.g., Rockies and Sierra Nevada) have fens (Cooper and Andrus 1994; Cooper and Wolf 2006; Lemly 2007). Because most mountain fens are sloping and supported by ground-water discharge, watershed geology exerts a strong influence in ground-water chemical content (Vitt and Chee 1990; Cooper and Andrus 1994; Bedford and Godwin 2002; Bragazza et al. 2003), which strongly influences fen plant community composition (Vitt and Chee 1990; Cooper and Andrus 1994; Cooper 1996; Bedford and Godwin 2002; Bragazza et al. 2003). Hydrogeomorphic landform can also control fen plant community composition (Bridgham et al.
1996; Grootjans et al. 2006). We used well known geochemical fen categories to organize the plant communities into rich, intermediate, and iron fen types. Intermediate fens are common on granite and other intrusive igneous watersheds while rich fens are common in districts with calcareous rocks (e.g., limestone and dolomite) and iron fens are present where iron pyrite rich rocks outcrop (Cooper and Andrus 1994; Cooper 1996; Cooper et al. 2002).
Disturbances and Fen Restoration
Ten percent of the fens sampled were highly disturbed, and were ranked as having high to very high restoration priorities, indicating that a large number of fens in the San Juan Mountains are in need of restoration. The most common disturbance encountered was roads, which are present in most study watersheds. Roads impact fens by intercepting water flow, bisecting fens, and are commonly a source of mineral sediment that can bury organic soils. Most roads had limited impacts to fens, but a few roads have caused severe impacts, especially where poor culvert placement created channels and erosion. Several fens also showed signs of off-road vehicles driving through or adjacent to them causing erosion.
Many fens were impacted by development other than roads (e.g., golf courses, parking structures, ski runs and structures), especially around the tows of Mountain Village and Telluride. The main impact from these developments was filling or structures that altered ground-water flow supporting fens.
Several fens had drainage ditches or water diversions. Dewatering is a severe disturbance in fens because it lowers the water table allowing peat to oxidize and the ground surface to subside due to increased decomposition (Chimner and Cooper 2003a).
Invasive species and heavy livestock grazing were minor issues. The few non-native species found, including Breea arvensis, Descurainia sophia, Taraxacum officinale, and Trifolium repens occurred in the dried and disturbed portions of a few fens. Relatively little domestic livestock grazing occurs in the study area at present and impacts were minor compared to grazing impacts in other mountain regions (Dull 1999; Preston et al. 2003; Cooper and Wolf 2006; Cooper and Wolf 2006; Chimner et al. 2007). We also found disturbances from native animals, primarily elk wallows and trampling, which caused erosion and gulling.
Two fen types were most likely to be highly disturbed and in need of restoration. Iron fens, which are rare in the western U.S., were frequently in poor condition with 6 out of 15 iron fens surveyed requiring restoration. Metal mines were often located near iron fens, which were used as tailings dumps. Besides the physical factor of tailings covering peat, tailing piles can disrupt surface and
ground-water flow and alter chemical and mineral sediment influx into fens. Some iron fens have been mined for "bog iron ore", which left the fen completely denuded even a century later, with bare soils undergoing severe frost heave and erosion.
Stands of rich sloping fens dominated by Eleocharis quinqueflora were disturbed in many areas, and their string and flark patterns and "step-terraces" were eroded by off road vehicles, horses, or elk. Most sites undergoing gully erosion were of this community type.
In summary, fens are an important component of subalpine zone ecosystems in the San Juan Mountains. However, the role mountain fens play in regional water and carbon cycles, and the provision of local and regional habitat for plants and animals is largely unknown (Vitt et al 2001; Bedford and Godwin 2002). Most mountain fens occur on slopes supported by ground-water discharge, which makes them especially vulnerable to disturbances that intercept ground water, for example roads and ditches, or cause erosion, for example mining, vehicle travel, and trampling. Iron fens and E. quinqueflora dominated fens are most likely to need protection and restoration.
Acknowledgements This research was funded by two Wetland Program Development grants from EPA Region 8. We would like to thank landowners, especially the San Juan National Forest, for help in conducting this project. We thank Kerry Cutler, Krista Northcott, Erin Hagland and Adam Birken for help with GIS and field assistance and three anonymous reviewers for improving this manuscript.
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Sorghum Accessions for Use as Cover Crops and
Biofuel Feedstocks
Abram Jared Bicksler (Corresponding author)
ECHO Asia Impact Center
PO Box 64, Muang, Chiang Mai, Thailand
Tel: +66-80-033-4601 E-mail: firstname.lastname@example.org.
John B. Masiunas
Department of Crop Sciences, University of Illinois at Urbana-Champaign
260 ERML, 1201 W. Gregory Dr., Urbana, Illinois, 61801, United States
Tel: 1-217-244-4469 E-mail: email@example.com.
Received: August 7, 2015
Accepted: August 22, 2015.
doi:10.5296/jas.v3i2.8114
URL: http://dx.doi.org/10.5296/jas.v3i2.8114
Abstract
Phenotypes of sorghum species (Sorghum sp.) have characteristics making them valuable summer annual cover crops and/or biofuel feedstocks for temperate climates. In field studies conducted at Urbana, IL, USA, fourteen USDA sorghum landrace accessions and three commercial sorghum accessions were evaluated for their growth habits and regrowth potential. In Canonical Discriminant Analysis (CDA) analysis, the first two canonical variates were significant and accounted for 86% of the among-accession variability. Unmown tiller number, regrowth tiller number, and regrowth biomass best discriminated between accessions in CDA and scattergrams. The accessions clustered into three subgroups. Three multi-stemmed accessions (two commercial varieties and one USDA accession) with an ability to regrow clustered away from the bulk of the USDA sorghums. Multi-stemmed accessions are useful for breeding improved summer annual cover crops that are tall, produce copious amounts of biomass, and rapidly regrow after defoliation; although propensity to lodging and poor germination of accessions will need attention. Additionally, landrace sorghum accessions in the USDA germplasm collection are useful for breeding cover crop and biofuel feedstocks, due to their great height and biomass production, although it will be necessary to select for improved regrowth potential. Crosses between USDA landraces and
the commercially available multi-stemmed accessions could lead to a sorghum cover crop and biofuel plant with great biomass and height and ability to regrow following defoliation.
Keywords: Sorghum, accessions, Canonical Discriminant Analysis, cover crops, biofuel
1. Introduction
1.1 Background
Sudangrass (Sorghum sudanense [Piper] Stapf.) rapidly closes canopy, reaches heights of 3m, produces up to 8 MT ha -1 shoot biomass, and immobilizes nutrients, making it more competitive than weeds (Ngouajio et al., 2003; Snapp et al., 2005). Its terminal buds and basal and axillary tillers allow sudangrass to be repeatedly mown at 15 to 20 cm (Chamblee et al., 1995) and to re-grow following cutting (Bicksler et al., 2012; Muldoon, 1985). Most research on weed suppression has used a relatively few commercially available sorghum cultivars from the United States (Czarnota et al., 2003; Nimbal et al., 1996). Moreover, sorghum species have the potential to be used as a biofuel through cellulosic ethanol conversion or as a powerplant feedstock (Hallam et al., 2001; Murray et al., 2008; Rooney et al., 2007), but research has also tended to focus on commercially available cultivars (Venuto and Kindiger, 2008; Zhao et al., 2009). The United States Department of Agriculture (USDA) maintains a sorghum germplasm repository with over 32,000 accessions from around the world (GRIN, 2013) with traits that could prove useful for weed suppressive cover crops or as biofuel feedstock.
1.2 Weed Suppression Potential
Weed suppression from sorghum cover crops may be improved by identifying cultivars or accessions with more competitive growth habits. Traits important for weed suppression by cover crops include: rapid biomass production, tall height, large surface area index, ability to regrow following defoliation to maintain interference against weed species, allelochemical production, and adaptation to local environmental conditions (Foley, 1999; Teasdale, 1998). Among these, increased height producing much biomass has been found to increase weed suppressive ability in cereal crops (Murphy et al., 2008; Foley, 1999). Cover crop light reduction originating from rapid growth rates, high shade tolerance, and competitive completion for light can effectively suppress weeds (Bicksler and Masiunas, 2009; Perry and Galatowitsch, 2006). Greenhouse research found that sudangrass regrowth after defoliation is important for suppressing Canada thistle, but tillering was not as important (Bicksler et al., 2012). The use of sorghum or sudangrass as a weed suppressing cover crop warrants further investigation. In other cereal cultivar studies, weed suppressive ability has varied considerably across cultivars (Hoad et al., 2008). Understanding the traits that make sorghum accessions have high weed suppressive ability would be beneficial for breeding or selecting improved weed-suppressive cover crops.
1.3 Allelopathy Potential
Besides their competitiveness, sorghum species can be allelopathic, inhibiting the growth of weeds. Sorgoleone (2-hydroxy-5-methoxy-3-[(Z,Z)-8',11',14'-pentadecatriene]p-benzoquinone) and dhurrin (p-hydroxy-(S)-mandelonitrile-β-D-glucoside) are major hydrophobic components of sorghum (Czarnota et al., 2003; Dayan, 2006; Weston and Duke, 2003). Allelochemical production varies according to genotypes (Czarnota et al., 2003;
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Nimbal et al., 1996). Sorghum shoots, as a surface mulch or a soil-incorporated residue, release phenolic compounds and cyanogenic glucosides, such as dhurrin, that can suppress weeds (Nielsen et al., 2008). Traditionally, farmers in many developing countries have used sorghum as a weed suppressing mulch and leaf extracts as a natural herbicide (Cheema, 2000; Cheema et al., 2004; Sène et al., 2000). Differences in suppression of indicator plants vary between sorghum genotypes and have been correlated with phenolic concentration (Alsaadawi et al., 2007; Ben-Hammouda et al., 1995). It may be assumed that increasing sorghum biomass is a useful trait to suppress weeds both by its physical presence and potential allelopathic potential.
1.4 Biofuel Crop Potential
Sorghum also has potential as a warm-season annual biofuel crop (Saballos, 2008; Rooney et al., 2007, Murray et al., 2008, Stefaniak et al., 2012). Sorghum has high productivity, drought tolerance, and many accessions likely vary in traits useful for biofuel crops, such as high amounts of lignocellulose, sugar, and starch (Rooney et al., 2007). Also, many of the traits that make sorghum a useful cover crop (height, tillers, ability to undergo defoliation, and large biomass production) could also make sorghum a useful biofuel feedstock (Hallam et al., 2001; Saballos, 2008; Venuto and Kindiger, 2008), if accessions could be isolated for specific traits and targeted for breeding. The ability of late-maturing sorghums to regrow after defoliation would be beneficial in a temperate biofuel usage where repeated defoliations could be made during the growing season (Venuto and Kindiger, 2008).
1.5 Using CDA to Assess Genetic Diversity
Assessing genetic diversity in sorghums (Teshome et al., 1997), hairy vetch (Yeater et al., 2004), and tall fescue (Vaylay and van Santen, 2002), has used Canonical Discriminant Analysis (CDA). CDA is an effective research tool because it can be paired with a nonhierarchical clustering procedure to group accessions into smaller subgroups that are most similar to each other (SAS Institute, 1999b; Yeater et al., 2004). By joining CDA, clustering procedures, and graphical representations, accessions can be differentiated by phenotypic characteristics of importance for cover cropping and biofuel applications.
1.6 Purpose of the Study
The interest in sorghum as a temperate annual cover crop and its potential as a biofuel, coupled with the limited availability of commercial sorghum cultivars, formed the rationale for the present study. The purpose of this research was to identify Sorghum sp. accessions with potential for use as cover crops and/or biofuels. We hypothesized that the multi-stemmed accessions would segregate from the rest of the landraces based upon tiller number and regrowth following defoliation. We also hypothesized that several of the USDA landraces would be capable of producing large quantities of biomass and be tall.
2. Materials and Methods
2.1 Sorghum Accessions
Sorghum accessions were identified in the USDA's Genetic Resources Information Network (GRIN, 2013) by querying the Southern Regional Sorghum Germplasm Collection (Griffin, GA, USA) for accessions with large height, numerous tillers, and midrib moisture, in order to focus on accessions with potentially beneficial traits for use as a cover crop or biofuel. Representative commercial sudangrass accessions were obtained from Seeds of Change, NC+
Organics, and Welter Seed and Honey American seed companies and were sold as either animal forage or cover crops (Table 1). Characteristics useful for biofuel and cover crops include: large unmown mass, large regrowth mass and large total mass.
Table 1. Name, source, species, origin, and given trait information of various sorghum accessions used in the experiment.
| Name | Sourcea | Species | Origin | | |
|---|---|---|---|---|---|
| | | | | Height (cm) | Tillers (# plant-1) |
| Akur Gok | PI 152591 | Sorghum bicolor | Kenya | 430 | 5 |
| Andiwo | PI 521346 | S. bicolor (L.) Moench ssp. drummondiid | Kenya | 346 | - |
| ‘Black African Sorghum’ | Seeds of Change | Sorghum bicolor | Africa | 275 | - |
| Budy | PI 152611 | Sorghum bicolor | Kenya | 410 | 2-5 |
| FAO 49967 | PI 562367 | Sorghum sp.e | Kenya | 185 | 1 |
| IS22852 | PI 570074 | Sorghum bicolor | Sudan | 500 | 2 |
| Juar 20 | PI 164416 | Sorghum bicolor | India | 310 | 3 |
| Kamuria | PI 152955 | Sorghum bicolor | Kenya | 240 | 0 |
| Macro Chaeta 4 | PI 563237 | Sorghum bicolor | Kenya | 167 | 2 |
| Muembe | PI 153877 | Sorghum bicolor | Kenya | 375 | 2 |
| Ndola | PI 152904 | Sorghum bicolor | Kenya | 285 | 1 |
| Ochuti | PI 521344 | S. bicolor (L.) Moench ssp. Drummondii | Kenya | 245 | 0 |
| Ogolo | PI 521341 | S. bicolor (L.) Moench ssp. Drummondii | Kenya | 275 | - |
| Orolo | PI 153830 | Sorghum bicolor | Kenya | 225 | 3 |
| ‘Special Effort’ | Welter Seed | S. bicolor Moench x S. sudanense [Piper] Stapf. | USA | NA | NA |
| Stoneville Synthetic | PI 542962 | Sorghum bicolor | USA | NA | NA |
| ‘Sweetleaf II’ | NC+ Organics | S. bicolor Moench x S. sudanense [Piper] Stapf. | USA | NA | NA |
a Provenance numbers (PI) from USDA germplasm collection; Southern Regional PI Station, Griffin, GA, USA.
b Height, tiller number, and midrib description from USDA website information
(www.ars-grin.gov/npgs/searchgrin.html) or description of seed company.
c Midrib traits describe moisture content of midrib of leaf: dry, juicy, or intermediate (inter).
d Full name is Sorghum bicolor (L.) Moench ssp. drummondii (Nees ex Steud.) De Wet ex Davids.
e Unknown species.
2.2 Field Study Location
The study was conducted in 2007 and 2008 using fourteen USDA landrace accessions and three commercial cultivars (Table 1). Field experiments were conducted at the University of Illinois' Vegetable Crops Research Farm in Champaign, Ill, USA, which experiences a humid continental climate with severe winters, no dry season, and hot summers. It is classified as a Dfa Köppen-Geiger classification (Climatemps, 2015) and a USDA Plant Hardiness Zone 5a. The soil type was a Flanagan silt loam (fine montmorillonitic, mesic Aquic Agridoll), with a soil pH between 6.5 and 7.1, soil organic matter content between 4.3% and 4.7%, and cation exchange capacity (CEC) between 12 meq/100 g and 16 meq/100 g. From June to October, the mean monthly temperatures ranged from 15.5 o C to 25.7 o C in 2007 and from 12.7 o C to 23.2 o C in 2008, while the total monthly precipitation ranged from 3.8 cm to 14.4 cm in 2007 and from 1.9 cm to 20.7 cm in 2008. On March 26 and 23 in 2007 and 2008, respectively, 129 kg ha -1 N, 113 kg ha -1 P, and 135 kg ha -1 K was broadcast applied to the experimental site. The site was disked using a tandem disk-harrow and rototilled to remove emerged weeds and prepare for planting on June 15 and 6 in 2007 and 2008, respectively.
2.3 Experimental Design
The experiment was conducted as a randomized complete block design with four replicates and two subsamples for each treatment. Treatments were the 17 sorghum accessions. Plots were 1.44 m 2 and contained two plants of a single accession, spaced 61cm between plants.
2.4 Plot Establishment
On June 20 and June 12 in 2007 and 2008, respectively eight seeds per plot (4 seeds in each planting hole) of each sorghum accession were hand seeded at a depth of 1.3 cm into freshly prepared soil and hand watered twice weekly until established (3 weeks after planting). At 14 days after planting (DAP), emergence was recorded as a ratio of seeds emerged to seeds planted (8) in each plot. At the same time, emerged seedlings were thinned to two plants per plot with a spacing of 61cm between plants. Weeds were managed using disking and hand-pulling. One plant per plot was defoliated 2.5 months after planting to evaluate regrowth and tillering after simulated mowing, and the other plant was allowed to grow until maturity.
2.5 Dependent Variables
At 79 DAP in 2007 and 82 DAP in 2008, when many of the landrace varieties were just beginning to flower, reaching their maximum size, one plant in each plot was cut at a height of 10 cm to measure regrowth and tillering ability. At 132 DAP in 2007 and 121 DAP in 2008, the experiment was terminated. Sorghum final free-standing height and final number of shoots were measured for both plants without defoliation and the regrowth of the cut plants. Sorghum free-standing height was measured from the soil surface to the tallest naturally occurring apex of leaves. Shoot numbers (tillers) were counted at the base of each plant. Shoots were cut at the soil surface, chipped in a chipper-shredder to allow easier handling,
Journal of Agricultural Studies
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2015, Vol. 3, No. 2
and weighed for wet mass. Five hundred gram subsamples of chipped shoots were dried at 70 o C until constant mass, and weighed. Total shoot dry mass was extrapolated from total fresh mass and subsample dry mass.
2.6 Data Analysis
Data were analyzed using Canonical Discriminant Analysis (CDA) and a nonhierarchical clustering method on the seven continuous variables (unmown height, regrowth height, unmown dry mass, regrowth dry mass, unmown tiller number, regrowth tiller number, and emergence). These analyses were conducted using the CANDISC and FASTCLUS procedures in SAS (SAS Institute; Cary, North Carolina, USA). In CDA, a classification variable (sorghum accessions) and measured traits were analyzed to derive canonical variables (SAS Institute, 1999a; Yeater et al., 2004). Canonical variables were used to group the accessions into clusters with small within-cluster variation relative to between-cluster variation. Mean values of canonical variables (group centroids) were then used to calculate distances between centroid values of each group called the Mahalanobis distance (D 2 ) (Yeater et al., 2004). Then, a k-means approach was used in a nonhierarchical clustering procedure (FASTCLUS) to assign all accessions to similar clusters (SAS Institute, 1999b). In addition to CDA and clustering, the accessions with the best ability to produce biomass and height and to regrow after mowing were identified using Fisher's Protected LSD and three-dimensional scattergrams. Accessions were compared to an ideotype of sorghum that would best suppress weeds and act as a biofuel based upon: 1) tall height, 2) large quantity of biomass, 3) ability to regrow to tall height, and 4) ability to regrow large quantity of biomass. All continuous and ordinal data were analyzed as linear mixed models using the MIXED Procedure of SAS. Both repeats and block were random factors, while sorghum accession was a fixed factor. For all dependent variables, degrees of freedom were adjusted using the Satterthwaite correction (Littell, et al. 2002), and normality of the raw data and residuals was evaluated using the UNIVARIATE procedure of SAS. When factors were significant, means were separated with Fisher's Protected LSD Test at an alpha = 0.05 using the PDMIX800 macro (Saxton, 1998). The scattergrams were constructed using the G3D procedure in SAS to evaluate overall unmown and regrowth plant stature and traits with greatest potential for cover cropping and biofuel use. Overall unmown plant growth was determined from the parameters of dry mass, number of tillers, and final height of sorghums grown to experiment termination without defoliation. Plant growth after mowing was determined from the parameters of dry mass, number of tillers, and height of the defoliated plants when the experiment was terminated.
3. Results and Discussion
3.1 CDA Clustering
Canonical discriminant analysis discriminated between sorghum accessions. The first two canonical variates accounted for 86% of among-sorghum accession variance. The canonical correlation was 0.97 between accessions and the first canonical variate, and canonical correlation was 0.82 between accessions and the second canonical variate, suggesting that these canonical variates can explain much of the differences in accessions. The first canonical discriminant function was influenced by loadings from unmown tiller number, regrowth tiller
number, and regrowth biomass. The second canonical discriminant function was dominated by loadings from regrowth height, unmown height, and regrowth biomass. The first canonical variate has the most discriminatory power in separating class variables. The traits that loaded for the two canonical variates suggest the sorghum accessions differ most in their tillering and regrowth after defoliation. An accession that would function well as a cover crop should regrow from tillering stems following mowing because it increases competitive ability, modifies the cover crop canopy, and allows for repeated mowing (Foley, 1999). The two canonical variates were used to cluster the accessions into three groups (Figure 1). The Mahalanobis distances were 90 between clusters I and II, 17.7 between clusters I and III and 77.1 between clusters II and III. All pairwise differences between clusters were significant (P = <0.0001). Cluster groups display smaller within-cluster phenotypic variation than among-cluster phenotypic variation (Teshome et al., 1997; Vaylay and van Santan, 2002). Accessions in clusters I and III contained USDA sorghum accessions and one commercial cultivar ('Black African Sorghum'). 'Black African Sorghum' was sold by Seeds of Change as a tall, early maturing, sorghum for use as a cover crop. Clusters I and III differed from each other mainly due to differences in height and regrowth biomass due to loadings of traits in canonical variate 2. Accessions in cluster II were two commercially-available hybrid sudangrass cultivars ('Special Effort' and 'Sweetleaf II') and the USDA's Stoneville Synthetic sorghum that produce many tillers; all three accessions originated in the USA. 'Special Effort' and 'Sweetleaf II' sudangrass are marketed for their ability to produce many tillers and to regrow after grazing.
Figure 1. Scattergram of the Three Cluster Groupings on the Two Canonical Discriminant Functions for Sorghum Accessions.
Cluster groups were determined by PROC FASTCLUS in SAS using Mahalanobis Distance
(D 2 ) of the centroid values of two canonical variables. Seventeen accessions grown in both years were used in the cluster analysis. Cluster I includes Andiwo, FAO49967, Muembe, Ndola, Ochuti, and Ogolo. Cluster II includes 'Special Effort,' Stoneville Synthetic, and 'Sweetleaf II'. Cluster III includes Akor Gok, 'Black African Sorghum,' Budy, IS22852, Juar 20, Kamuria, Machro Chaeta 4, and Orolo.
3.2 Emergence
Percent emergence was greatest using LSD for 'Black African Sorghum,' 'Sweetleaf II,' Muembe, Ochuti, Machro Chaeta 4, Kamuria, and Andiwo, averaging 77.6% (Table 2). Among the other commercial accessions, 'Special Effort' and Stoneville Synthetic averaged 50% emergence and four of the USDA sorghums averaged below 50% emergence, for unknown reasons. The seed from the USDA accessions may have been old, needing to be renewed.
Table 2. Effect of sorghum accession on emergence, averaged across 2007 and 2008 runs of the experiment.
| Name | Emergence (%) |
|---|---|
| Akur Gok | 43 |
| Andiwo | 75 |
| ‘Black African Sorghum’ | 85 |
| Budy | 52 |
| FAO49967 | 36 |
| IS22852 | 48 |
| Juar 20 | 51 |
| Kamuria | 75 |
| Macro Chaeta 4 | 76 |
| Muembe | 78 |
| Ndola | 51 |
| Ochuti | 77 |
| Ogolo | 59 |
| Orolo | 22 |
| ‘Special Effort’ | 46 |
| Stoneville Synthetic | 54 |
| ‘Sweetleaf II’ | 77 |
| LSD within column | 22.7***a |
a P-value of ANOVA, where *P<0.05, **P<0.01, and ***P<0.001.
3.3 Biomass, Height, and Tillers
The greatest unmown dry mass plant -1 and unmown height was in several of the USDA landrace accessions (Muembe, Ochuti, Ogolo, Ndola, and Andiwo, averaging 1700 g plant -1 and 275 cm), as well as commercially available 'Sweetleaf II' (Table 3, Figure 2). Several USDA landrace accessions (Andiwo, Ogolo, and Ndola) were close to the ideotype for an unmown sorghum cover or biofuel crop, offering potential for breeding on the basis of unmown dry biomass and height, two parameters useful for a cover and biofuel crop (Figure 2). Three multi-stemmed accessions ('Sweetleaf II,' 'Special Effort,' and Stoneville Synthetic, averaging 117 g plant -1 ) that clustered together using CDA and scattergrams had the greatest
regrowth dry mass plant -1 (Table 3, Figure 3). 'Sweetleaf II' and 'Special Effort' had the greatest combined regrowth height, regrowth biomass, and regrowth tillers of the 17 accessions (Figure 3), suggesting they were good starting places for regrowth breeding, but are hybrids. Additionally, 'Special Effort,' and 'Sweetleaf II,' cultivars grouped together near the ideotype for an ideal cover crop (Figure 4), yet both could be improved by increasing unmown height and biomass, to make them equally useful for biofuel purposes.
Table 3. Effect of sorghum accession on unmown and regrowth height, unmown and regrowth biomass, and unmown and regrowth tillers, averaged across 2007 and 2008 runs of the experiment.
| Name | Heighta (cm) | | Biomassb (g plant-1) | | Tillers (# plant-1) | |
|---|---|---|---|---|---|---|
| | Unmown | Regrowth | Unmown | Regrowth | Unmown | Regrowth |
| Akur Gok | 238 | 38 | 1372 | 4 | 7.5 | 2.7 |
| Andiwo | 314 | 94 | 1517 | 73 | 5.6 | 8.9 |
| ‘Black African Sorghum’ | 231 | 76 | 880 | 37 | 7.5 | 8.3 |
| Budy | 201 | 52 | 1337 | 13 | 7.1 | 3.7 |
| FAO49967 | 255 | 69 | 1456 | 39 | 7.5 | 8.4 |
| IS22852 | 228 | 34 | 1201 | 6 | 9.3 | 2.7 |
| Juar 20 | 216 | 105 | 480 | 41 | 9.0 | 9.9 |
| Kamuria | 215 | 59 | 898 | 16 | 5.0 | 3.1 |
| Macro Chaeta 4 | 199 | 92 | 625 | 129 | 6.1 | 12.4 |
| Muembe | 260 | 38 | 1820 | 23 | 13.8 | 12.4 |
| Ndola | 282 | 64 | 1683 | 27 | 9.8 | 8.9 |
| Ochuti | 248 | 80 | 1780 | 51 | 5.9 | 6.6 |
| Ogolo | 271 | 80 | 1703 | 79 | 13.8 | 16.5 |
| Orolo | 210 | 75 | 1212 | 44 | 14.4 | 23.3 |
| ‘Special Effort’ | 220 | 126 | 1039 | 182 | 30.8 | 41.9 |
| Stoneville Synthetic | 169 | 96 | 786 | 103 | 30.8 | 42.5 |
| ‘Sweetleaf II’ | 247 | 130 | 1763 | 231 | 34.1 | 47.4 |
| LSD within column | 41.1***d | 32.4*** | 457.1*** | 77.0*** | 5.3*** | 10.7*** |
a Height measured from ground to tallest free-standing leaf.
b Biomass measured on a plant-clump basis.
c Variances between years were not statistically significant for any dependent variable, so years were combined for analysis.
d P-value of ANOVA, where *P<0.05, **P<0.01, and ***P<0.001.
Black triangle represents sorghum ideotype for use as a cover crop or biofuel feedstock. Unmown data were collected 126 DAP.
Figure 3. Scattergram of 17 Sorghum Accessions Clustered by Regrowth Parameters (Regrowth Tiller Number, Regrowth Dry Biomass, and Regrowth Height), Averaged Across
2007 and 2008 Runs of the Experiment.
Black triangle represents sorghum ideotype for use as a cover crop or biofuel feedstock. Regrowth data were collected 46 days after mowing.
Black triangle represents sorghum ideotype for use as a cover crop. Unmown data were collected 126 DAP and regrowth data were collected 46 days after mowing.
4. Conclusions
4.1 Sorghum's Potential as a Cover Crop
Regrowth mass and height is an important trait for summer annual cover crops to increase competitive ability, canopy diversity, and tolerance to mowing (Foley, 1999; Teasdale, 1998). Ability to regrow after mowing allows for increased mulch production, which can smother weeds. Of the three multi-stemmed accessions, 'Sweetleaf II' had greater number of unmown and regrowth tillers, unmown and regrowth mass, and regrowth height than 'Special Effort' or Stoneville Synthetic. Yet, regrowth ability alone does not maximize competitive ability. Initial unmown height and biomass (within first 2.5 months after planting) are also important for increased weed control (Murphy et al., 2008), and were best exhibited by several of the USDA landrace sorghums such as Andiwo and Ogolo, consistent with Stefaniak et al. (2012),
who found that biomass yields of biomass sorghums and sweet sorghums were greater than sorghum-sudangrass hybrids. The inbred parents of 'Sweetleaf II' and several of the USDA landrace sorghums might be a good starting point for breeding programs to increase both unmown and regrowth height and biomass of sudangrass cover crops. A combination of Andiwo's and Ogolo's unmown height and unmown biomass with 'Sweetleaf II's' regrowth biomass could produce a cover crop with excellent overall competitive ability and regrowth potential following defoliation. Improvements to these accessions for use as cover crops should target: increasing emergence, reducing lodging, increasing unmown biomass and height, and increasing secondary traits, such as allelopathy.
4.2 Sorghum's Potential as a Biofuel Crop
Assuming the feasibility of converting lingo-cellulose to usable fuels or using dried biomass directly in power plants, biofuel feedstock breeding on the basis of unmown mass (Saballos, 2008) could target these African USDA accessions. If multiple defoliations were desired for the biomass crop production, regrowth biomass production found in the multi-stemmed accessions would be the best for future research and crosses with the USDA landraces (Saballos, 2008).
4.3 Future Directions
Overall, CDA and nonhierarchical clustering, LSD, and scattergrams consistently discriminated sorghum accessions on the basis of phenotypic traits and commercial breeding. 'Sweetleaf II,' 'Special Effort,' and Stoneville Synthetic were in one cluster, while USDA sorghum accessions were in two different clusters that were similar in tillering to each other, yet differed in regrowth height, unmown height, and regrowth biomass. These three accessions of multi-stemmed commercial sorghums originating in the USA with excellent regrowth potential are a good starting point for farmers to use in cover cropping applications and for breeders to improve upon as summer annual cover crops. Increased cover crop growth, biomass production, and canopy production has been shown to be directly related to weed suppression (Foley, 1999). Our research has built upon the work of Rooney et al. (2007), Saballos (2008), and Venuto and Kindiger (2008) to distinguish USDA landrace accessions such as Muembe, Ochuti, Ogolo, Ndola, Andiwo, and Orolo, which would be excellent candidates for biofuel breeding and/or could be improved upon for regrowth potential as summer annual cover crops because of their height and biomass potential. But, their limited regrowth would not be favorable for multiple harvests. Crosses between USDA landraces and the multi-stemmed accessions could lead to a sorghum cover crop with great unmown biomass and height and ability to regrow following mowing, and would approximate a sorghum cover crop ideotype. Previous research on several sorghum accessions confirmed that sorghum had the lowest cost per ton of biomass produced compared to switchgrass, big bluestem, alfalfa, and reed canary grass (Hallam et al., 2001). This research has confirmed that several of the USDA's accessions of landrace sorghums would be useful for biomass breeding (Stefaniak et al., 2012) and the effectiveness of CDA for rapid clustering of accessions for targeted traits (Teshome et al., 1997). Future research should examine optimal plant spacing, seeding density, and plant populations in field scale
experiments for biofuel production (Goff et al., 2010).
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2022-23
SPSA Title Page
School Plan for Student Achievement (SPSA) Template
Instructions and requirements for completing the SPSA template may be found in the SPSA Template Instructions.
Purpose and Plan Summary
Briefly describe the purpose of this plan (Select from Schoolwide Program, Comprehensive Support and Improvement, Targeted Support and Improvement, or Additional Targeted Support and Improvement)
The purpose of this plan is to describe the use of federal and state resources toward promoting equitable, including sustained improvement of student outcomes.
Summarize the school's plan for effectively meeting the ESSA requirements in alignment with the Local Control and Accountability Plan and other federal, state, and local programs.
The Trajan School Plan for Student Achievement (SPSA) is aligned to the San Juan Unified Local Control and Accountability Plan (LCAP.) The SJUSD LCAP describes four goals:
Goal 1: Connected School Communities
Goal 2: Healthy Environments for Socio-Emotional Growth
Goal 3: Engaging Academic Programs
Goal 4: Clear Pathways to Bright Futures
Our site goals are:
Goal 1: We will actively engage and build trusting relationships with students, families, and our diverse community to create a unified, collaborative learning environment focused on academic success.
Goal 2: We will provide resources and support, as well as actively engage and build relationships with students, families, and our community to positively impact the social/emotional well-being of all students.
School Plan for Student Achievement (SPSA)
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Goal 3: We will regularly monitor student progress, using data to identify student needs and implement effective, innovative strategies to increase student achievement.
Goal 4: We will implement engaging and creative strategies and learning opportunities to increase student interest and achievement.
All goals, actions and resources are directed toward improving academic and social-emotional outcomes for students.
School Plan for Student Achievement (SPSA)
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Table of Contents
Recommendations and Assurances...............................................................................................................33
Stakeholder Involvement
How, when, and with whom did the school consult as part of the planning process for this SPSA/Annual Review and Update?
Involvement Process for the SPSA and Annual Review and Update
School Site Council, PTA, the site Leadership Team and staff were consulted in March and April of 2022 to review data, identify priority areas and actions, and discuss the budget as part of the planning process for this SPSA/Annual Review and Update. School Site Council and PTA consist of parents, teachers, other school staff, and the principal. Teachers and the principal answered questions from parents or other staff regarding the need for continued small group interventions and instructional practices to support students. School Site Council agreed with the current actions. Teachers and staff participated in the development of the plan through the site Leadership Team, PTA, and School Site Council. The proposed SPSA budget plan was also shared with and discussed with school staff at the May 2022 site staff meeting.
The SPSA is shared on the school website so that all stakeholders are able to read it and provide input.
School Plan for Student Achievement (SPSA)
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Resource Inequities
Briefly identify and describe any resource inequities identified as a result of the required needs assessment, as applicable.
Based on data analysis, root cause analysis, and review of budgets, the following resource inequities were identified:
1. All grades, K-5, continue to need additional curriculum resources and to provide appropriate and engaging small group instruction and intervention, particularly in reading.
2. The 2021/2022 small group intervention was provided by one full-time intervention teacher so not all students in need were able to receive this additional intervention support.
3. Based on our most recent relevant data, particularly in Reading, targeted small group intervention and small group classroom instruction to overcome learning gaps across the curriculum areas should be the emphasis for our professional learning this year.
School Plan for Student Achievement (SPSA)
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Goals, Strategies, & Proposed Expenditures
Complete a copy of the following table for each of the school's goals. Duplicate the table as needed.
Goal Subject
Connected School Communities
LEA/LCAP Goal
Goal 1. Connected School Communities: Caring staff actively build community relationships, identify assets and needs, and connect students and families with resources to help them access the best opportunities schools have to offer.
SPSA/Goal 1
We will actively engage and build trusting relationships with students, families, and our diverse community to create a unified, collaborative learning environment focused on academic success.
Annual Review
SPSA Year Reviewed: 2021-22
Respond to the following prompts relative to this goal. If the school is in the first year of implementing the goal, an analysis is not required and this section may be deleted.
ANALYSIS
What data did you use to monitor progress and how often?
Spring 2022 Parent, Student, & Staff Survey data; Attendance data; and student behavior data in Q.
What worked and didn't work? Why? (monitoring)
Based on the Spring 2022 Survey data, over 90% of parents, students, and staff agreed that Trajan has High Expectations/Caring Relationships and 94.3% of parents feel that school is a safe place for all students. Also based on the Survey data, in the area of Participation/Engagement/Motivation, less than 80% of parents, staff and students feel that students are prepared for the next step of their educational experience and that quality classes/activities are offered that meet each child's/student's interests and talents. During discussion at the Site Council, PTA, and staff meetings, we discussed the gaps in learning due to the pandemic and the inability to hold events and enrichment programs due to COVID as contributing factors.
School Plan for Student Achievement (SPSA)
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What modification(s) did you make based on the data? (evaluation)
We used ELO Grant funds to have extra-curricular sports activities from the Elevo "Sports for Learning" company during recess time 3 days per week and for extra PE time once a week for each class. We also had small group reading intervention during the school day for K-5th grades, extended day reading intervention for 1st grade students, and after-school math intervention for 3rd-5th grade students. For the 2022/2023 school we plan to expand our intervention offerings and possibly add an after-school VAPA program, such as band and/or choir.
2021-22
Identified Need
Based on the Comprehensive Needs Assessment and the above analysis of this goal, through a collaborative process with educational partners, the following need has been identified: Our Low SES students, homeless students, and students with disabilities in particular are in need of engaging classes and activities to increase student motivation and promote student success academically and socially.
Annual Measurable Outcomes
School Plan for Student Achievement (SPSA)
Page 6 of 33
Complete a copy of the Strategy/Activity table for each of the school's strategies/activities. Duplicate the table, including Proposed Expenditures, as needed.
Strategy/Activity & Proposed Expenditures
School Plan for Student Achievement (SPSA)
Page 7 of 33
Create opportunities for student voice and engagement.
Provide additional materials for use in the Family Resource Center area.
Provide support for the PTA sponsored Book Exchange area
Provide time to recognize volunteers for their services, such as a Volunteer Appreciation event.
Expand and strengthen our communication with our parents and community through the use of current and
School Plan for Student Achievement (SPSA)
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Trajan Elementary School relevant
School Plan for Student Achievement (SPSA)
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information
board to create
awareness for
families.
1.3
All Students
English Learners
Low-Income Students
Foster Youth
Other
School Plan for Student Achievement (SPSA)
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Goals, Strategies, & Proposed Expenditures
Complete a copy of the following table for each of the school's goals. Duplicate the table as needed.
Goal Subject
Healthy Environments for Socio-Emotional Growth
LEA/LCAP Goal
Goal 2. Healthy Environments for Social and Emotional Growth: All staff cultivate inclusive, safe, equitable, culturally responsive and healthy environments by integrating social and emotional learning to ensure essential student development.
SPSA/Goal 2
We will provide resources and support, as well as actively engage and build relationships with students, families, and our community to positively impact the social/emotional well-being of all students.
Annual Review
SPSA Year Reviewed: 2021-22
Respond to the following prompts relative to this goal. If the school is in the first year of implementing the goal, an analysis is not required and this section may be deleted.
ANALYSIS
What data did you use to monitor progress and how often?
Spring 2022 Parent, Student, & Staff Survey data; SAEBRS & MySAEBRS Survey data; and student behavior data in Q.
What worked and didn't work? Why? (monitoring)
Based on the 2022 Spring Survey data, there is a disparity in the percentage of students who agree that their needs are met in the areas of Safety and School Culture/Sense of Belonging compared to the percentage of parents and staff in those areas. 94.3% of parents and 100% of staff feel that school is a safe place for all students, while 71% of students agree with that. And, 92% of parents and 94.1% of staff agree that people are respectful to others at school compared to 62.7% of students. Our discussion during Site Council, PTA, and staff meetings regarding the disparity between the parents & staff percentages compared to student percentages revolved around the fact that students' perceptions are based on the return to school after being in distance/hybrid learning and that
School Plan for Student Achievement (SPSA)
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Trajan Elementary School they were readjusting to in-person instruction and not being able to have as many activities during the school year because of COVID protocols.as contributing factors.
What modification(s) did you make based on the data? (evaluation).
We continue our work with the MTSS staff, as well as our school wide behavior expectations and character education to continue to increase feelings of safety and fair treatment at school. The character education and behavior expectations incorporate strategies from Project GLAD (Guided Language Acquisition Design) T-Charts and personal standards, as well as a continued focus on equity and inclusiveness.
2021-22
Identified Need
Based on the Comprehensive Needs Assessment and the above analysis of this goal, through a collaborative process with educational partners, the following need has been identified: In the area of school culture/sense of belonging, we will focus on increasing the percentage of students who feel that people are respectful to others at school.
Annual Measurable Outcomes
School Plan for Student Achievement (SPSA)
Page 12 of 33
Metric/Indicator
Baseline 2021-22
Expected Outcome 2022-23
Complete a copy of the Strategy/Activity table for each of the school's strategies/activities. Duplicate the table, including Proposed Expenditures, as needed.
Strategy/Activity & Proposed Expenditures
School Plan for Student Achievement (SPSA)
Page 13 of 33
Provide access to and/or purchase character education and social/emotion al learning materials and resources to support the social/emotion al learning and needs of our student (such as mindfulness activities or programs like Second Step or Centervention).
Teach, model, and reinforce character traits and educational equity practices through the use of Project GLAD strategies; such as, the Social Skills Tcharts and 3 Personal Standards and through our
School Plan for Student Achievement (SPSA)
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Trajan Elementary School focus on the San Juan 8Point Commitment to Educational Justice and the Learning for Justice Social Justice Standards.
Conduct engaging assemblies to recognize positive behavior from the previous month and to introduce the upcoming monthly character trait or distance learning expectations.
Implement systems that acknowledge positive behaviors (such as assemblies, Tracker tshirts, Dragon Dollars, public recognition of
School Plan for Student Achievement (SPSA)
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Trajan Elementary School positive character traits in newsletters) with the help of PTA.
School Plan for Student Achievement (SPSA)
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Goals, Strategies, & Proposed Expenditures
Complete a copy of the following table for each of the school's goals. Duplicate the table as needed.
Goal Subject
Engaging Academic Programs
LEA/LCAP Goal
Goal 3. Engaging Academic Programs: All educators engage and support each student in a challenging and broad course of study that builds skills, knowledge and experiences preparing all to be critical thinkers who communicate effectively, collaborate and are civic minded.
SPSA/Goal 3
We will regularly monitor student progress, using data to identify student needs and implement effective, innovative strategies to increase student achievement.
Annual Review
SPSA Year Reviewed: 2021-22
Respond to the following prompts relative to this goal. If the school is in the first year of implementing the goal, an analysis is not required and this section may be deleted.
ANALYSIS
What data did you use to monitor progress and how often?
iReady Winter Reading & Math test data; Spring text level data; and Spring 2021 ELPAC data.
What worked and didn't work? Why? (monitoring)
With an overall increase of 23.1% of students scoring at grade level from Fall 2021 to Spring 2022 on the iReady Reading assessment and an increase of 41% of K-2 students at grade level proficiency from Fall 2021 to Spring 2022 iReady Reading/Text Level assessments; as well as a 20.7 % increase in students at grade level proficiency from Fall 2021 to Spring 2022 on the iReady Math assessment, small group interventions and small group classroom instruction are making a positive impact on student progress. Although there was a significant increase in the percentage of students at grade level proficiency in reading and math, the overall percentage of students at grade level proficiency needs to increase more. 49.5% of K-5 students scored at grade level on the Spring
School Plan for Student Achievement (SPSA)
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2022 iReady Reading test and 29.8% of K-5 students scored at grade level on the Spring 2022 iReady Math test. In K-2, 59% of students scored at grade level on the Spring 2022 iReady Reading/Text Level assessments.
What modification(s) did you make based on the data? (evaluation)
Based on information gathered from the Comprehensive Needs Assessment data in the area of Reading, we saw the need for increased small group instruction and intervention in math and, especially, reading. Opportunities were provided for small group reading intervention and small group classroom instruction throughout the school day, as well as for extended school day and afterschool interventions in math and reading.
2021-22
Identified Need
Based on the Comprehensive Needs Assessment and the above analysis of this goal, through a collaborative process with educational partners, the following need has been identified: Increase targeted small group intervention and small group classroom instruction to overcome learning gaps, especially in the area of reading and with a focus on the needs of our Low SES students, students with disabilities and our EL students.
Annual Measurable Outcomes
School Plan for Student Achievement (SPSA)
Page 18 of 33
Complete a copy of the Strategy/Activity table for each of the school's strategies/activities. Duplicate the table, including Proposed Expenditures, as needed.
Strategy/Activity & Proposed Expenditures
School Plan for Student Achievement (SPSA)
Page 19 of 33
SPSA # Action/Service Principally Serving
Person(s)
Source(s)
Responsible
Proposed
Allocation
Implementation
Timeline
School Plan for Student Achievement (SPSA)
Page 20 of 33
Ensure collaboration time in order to develop and analyze Common Core curriculum to enhance small group instructional practices to overcome learning gaps as needed; implement GLAD instructional strategies, as well as explore common assessments and data (iReady, running records, overall math & math fluency, ondemand writing) to guide, revise, and inform instruction.
Provide opportunities for teachers to earn additional
School Plan for Student Achievement (SPSA)
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Trajan Elementary School assignment
School Plan for Student Achievement (SPSA)
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Trajan Elementary School meeting growth
School Plan for Student Achievement (SPSA)
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Trajan Elementary School practices and
School Plan for Student Achievement (SPSA)
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| | teachers provided if needed. | |
|---|---|---|
| 3.5 | | All Students English Learners Low-Income Students Foster Youth Other |
School Plan for Student Achievement (SPSA)
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Goals, Strategies, & Proposed Expenditures
Complete a copy of the following table for each of the school's goals. Duplicate the table as needed.
Goal Subject
Clear Pathways to Bright Futures
LEA/LCAP Goal
Goal 4. Clear Pathways to Bright Futures: Our whole school community engages each student in discovering their limitless potential, and through coordinated efforts prepares them for college, career and bright futures filled with opportunity
SPSA/Goal 4
We will implement engaging and creative strategies and learning opportunities to increase student interest and achievement.
Annual Review
SPSA Year Reviewed: 2021-22
Respond to the following prompts relative to this goal. If the school is in the first year of implementing the goal, an analysis is not required and this section may be deleted.
ANALYSIS
What data did you use to monitor progress and how often?
Spring 2022 Parent, Student, and Staff Survey data
What worked and didn't work? Why? (monitoring)
We were able to offer extracurricular activities from the Elevo Sports for Learning company using ELO Grant funds during recesses and for extra PE time for each class. However, other enrichment programs; such as band or choir were not able to be offered this school year. Although 91.4% of parents feel that students are happy at school, 67% of students feel they are happy at school which indicates a need to offer activities and classes that meet students' interests.
What modification(s) did you make based on the data? (evaluation)
School Plan for Student Achievement (SPSA)
Page 26 of 33
For the 2022/2023 school year, we plan to expand our enrichment offerings and possibly add an after-school VAPA program, such as band and/or choir.
2021-22
Identified Need
Based on the Comprehensive Needs Assessment and the above analysis of this goal, through a collaborative process with educational partners, the following need has been identified: Our students are in need of engaging enrichment classes or activities to increase their engagement and achievement.
Annual Measurable Outcomes
School Plan for Student Achievement (SPSA)
Page 27 of 33
Complete a copy of the Strategy/Activity table for each of the school's strategies/activities. Duplicate the table, including Proposed Expenditures, as needed.
startcollapse
Strategy/Activity & Proposed Expenditures
School Plan for Student Achievement (SPSA)
Page 28 of 33
Centralized Services for Planned Improvements in Student Performance
The following actions and related expenditures support site program goals and will be performed as a centralized service to eligible students, district wide. Proposed expenditures are central costs. Specific school expenditures vary by need and identified Resource Inequities.
Budget Summary
Complete the table below. Schools may include additional information. Adjust the table as needed. The Budget Summary is required for schools funded through the ConApp, and/or that receive funds from the LEA for Comprehensive Support and Improvement (CSI).
Budget Summary
Description
Total Funds Provided to the School Through the Consolidated Application
Total Federal Funds Provided to the School from the LEA for CSI
Total Funds Budgeted for Strategies to Meet the Goals in the SPSA
Amount
Other Federal, State, and Local Funds
List the additional Federal programs that the school is including in the schoolwide program. Adjust the table as needed. If the school is not operating a Title I schoolwide program this section is not applicable and may be deleted.
startcollapse
Federal Programs
Allocation ($)
Subtotal of additional federal funds included for this school: $
List the State and local programs that the school is including in the schoolwide program. Duplicate the table as needed.
startcollapse
Subtotal of state or local funds included for this school: $31,500.00
Total of federal, state, and/or local funds for this school: $31,500.00
School Plan for Student Achievement (SPSA)
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Budgeted Funds and Expenditures in this Plan
The tables below are provided to help the school track expenditures as they relate to funds budgeted to the school.
Funds Budgeted to the School by Funding Source
startcollapse
Expenditures by Budget Reference and Funding Source
startcollapse
Expenditures by Goal
startcollapse
School Plan for Student Achievement (SPSA)
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School Plan for Student Achievement (SPSA)
Page 31 of 33
800.00
School Site Council Membership
California Education Code describes the required composition of the School Site Council (SSC). The SSC shall be composed of the principal and representatives of: teachers selected by teachers at the school; other school personnel selected by other school personnel at the school; parents of pupils attending the school selected by such parents; and, in secondary schools, pupils selected by pupils attending the school. The current make-up of the SSC is as follows:
1 School Principal
3 Classroom Teachers
1 Other School Staff
5 Parent or Community Members
startcollapse
Name of Members
Role
At elementary schools, the school site council must be constituted to ensure parity between (a) the principal, classroom teachers, and other school personnel, and (b) parents of students attending the school or other community members. Classroom teachers must comprise a majority of persons represented under section (a). At secondary schools there must be, in addition, equal numbers of parents or other community members selected by parents, and students. Members must be selected by their peer group.
School Plan for Student Achievement (SPSA)
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Recommendations and Assurances
The School Site Council (SSC) recommends this school plan and proposed expenditures to the district governing board for approval and assures the board of the following:
The SSC is correctly constituted and was formed in accordance with district governing board policy and state law.
The SSC reviewed its responsibilities under state law and district governing board policies, including those board policies relating to material changes in the School Plan for Student Achievement (SPSA) requiring board approval.
The SSC sought and considered all recommendations from the following groups or committees before adopting this plan:
Signature
Committee or Advisory Group Name
XOther: PTA
The SSC reviewed the content requirements for school plans of programs included in this SPSA and believes all such content requirements have been met, including those found in district governing board policies and in the local educational agency plan.
This SPSA is based on a thorough analysis of student academic performance. The actions proposed herein form a sound, comprehensive, coordinated plan to reach stated school goals to improve student academic performance.
This SPSA was adopted by the SSC at a public meeting on 04/28/22.
Attested:
School Plan for Student Achievement (SPSA)
Principal, Monica Curiel on 04/28/22
SSC Chairperson, Paula Lasick on 04/28/22
Page 33 of 33
Budget By Expenditures
Trajan Elementary School
Funding Source: LCFF Supplemental Site Allocation
Proposed Expenditure
Object Code
Actively promote PTA involvement and foster support for family and school events.
Create opportunities for student voice and engagement.
Provide additional materials for use in the Family Resource Center area.
Provide support for the PTA sponsored Book Exchange area
Provide time to recognize volunteers for their services, such as a Volunteer Appreciation event.
Expand and strengthen our communication with our parents and community through the use of current and relevant methods.
Increase staff participation with parents through SSC & PTA..
Provide information regarding training and committee opportunities related to school curriculum to parents and the community to increase parent voice and further support Trajan students' success.
4000-4999: Books And Supplies
$31,500.00 Allocated
Amount
Goal
$250.00
Connected School Communities
Action
Trajan Elementary School
Continue to implement systems for positive school attendance.
Display a daily attendance information board to create awareness for families.
Continue implementation of character education programs, successful practices, and educational equity instruction in which students are recognized for exhibiting inclusiveness, positive character and successful practice traits.
Provide access to and/or purchase character education and social/emotional learning materials and resources to support the social/emotional learning and needs of our student (such as mindfulness activities or programs like Second Step or Centervention).
Teach, model, and reinforce character traits and educational equity practices through the use of Project GLAD strategies; such as, the Social Skills Tcharts and 3 Personal Standards and through our focus on the San Juan 8-Point Commitment to Educational Justice and the Learning for Justice Social Justice Standards.
Conduct engaging assemblies to recognize positive behavior from the previous month and to introduce the upcoming monthly character trait or distance learning expectations.
Implement systems that acknowledge positive behaviors (such as assemblies, Tracker t-shirts, Dragon Dollars, public recognition of positive character traits in newsletters) with the help of PTA.
4000-4999: Books And
Supplies
4000-4999: Books And
Supplies
$250.00
$500.00
Connected School
Communities
Healthy
Environments for
Socio-Emotional
Growth
Trajan Elementary School
Fund Intervention teacher for small group, targeted reading and math intervention.
Implementation of Common Core State Standards (CCSS) with materials and resources to build 21st Century skills for student success.
Provide opportunity for teachers to attend Project GLAD (Guided Language Acquisition Design) and Distance Learning professional development throughout the year.
Ensure collaboration time in order to develop and analyze Common Core curriculum to enhance small group instructional practices to overcome learning gaps as needed; implement GLAD instructional strategies, as well as explore common assessments and data (iReady, running records, overall math & math fluency, on-demand writing) to guide, revise, and inform instruction.
Provide opportunities for teachers to earn additional assignment pay for curriculum planning and collaboration outside of the work day.
Provide ongoing professional development in Math, Science, Reading & Writing Workshop, Critical Literacy, GLAD, interventions to address learning gaps, and all content areas in alignment with CCSS Provide resources for after school intervention/tutoring to students, including EL and Low SES students, not meeting growth targets in reading & math.
4000-4999: Books And Supplies
4000-4999: Books And Supplies
$600.00
Engaging Academic Programs
$200.00 Engaging Academic
Programs
Trajan Elementary School
Identify and obtain intervention materials, resources, and programs to support reading & math instruction.
Purchase identified technology and instructional materials to be utilized by students and teachers to meet CCSS, address learning gaps, and implement Project GLAD instruction.
Staff participate in book studies related to curriculum & instruction or successful practices and social skills. Identify and obtain materials/resources & programs, such as ESGI and Starfall, needed for implementation of CCSS.
Teachers & administration attend math, science, reading or writing curriculum related conferences, virtually or at a venue, with guest teachers provided to attend.
Teachers attend Education Through Music and Physical Education conferences with guest teachers provided if needed.
Offer before and/or after school enrichment opportunities for students, including EL and Low SES students.
Create opportunities for student voice and engagement.
4000-4999: Books And Supplies
5800: Professional/Consulting Services And Operating Expenditures
1000-1999: Certificated Personnel Salaries
4000-4999: Books And Supplies
1000-1999: Certificated Personnel Salaries
$1,036.00
$1,500.00
$26,364.00
$300.00
Engaging Academic
Programs
Engaging Academic Programs
Engaging Academic
Programs
Clear Pathways to
Bright Futures
$500.00 Clear Pathways to Bright Futures
Trajan Elementary School
$31,500.00
LCFF Supplemental Site Allocation Total Expenditures:
LCFF Supplemental Site Allocation Allocation Balance:
$0.00
Trajan Elementary School Total Expenditures:
$31,500.00
|
SECTION 1
Introduction
Th e objective of the Guidelines for Assessment and Instruction in Statistics Education (GAISE) Report is to provide a conceptual framework for K–12 statistics education. Th e GAISE Framework outlines three statistical maturity levels—A, B, and C—that are based on experience, not on age or grade level. Th e framework stresses hands-on active learning and that statistical analysis is an investigative process that turns loosely formed ideas into scientifi c studies by doing the following:
1. Formulating a question that can be answered with data
2. Designing a plan to collect appropriate data
3. Analyzing the collected data by graphical and numerical methods
4. Interpreting the results to refl ect light on the original question
Th e four-step statistical problem-solving process is also part of the Common Core State Standards, as found in the Grade 6 Statistics and Probability Content Standards, 6.SP.
Develop understanding of statistical variability.
6.SP.1 Recognize a statistical question as one that anticipates variability in the data related to the question and accounts for it in the answers. Ex. "How old am I?" is not a statistical question, but "How old are the students in my school?" is a statistical question, because one anticipates variability in students' ages.
6.SP.2 Understand that a set of data collected to answer a statistical question has a distribution, which can be described by its center, spread, and overall shape.
6.SP.3 Recognize that a measure of center for a numerical data set summarizes all of its values with a single number, while a measure of variation describes how its values vary with a single number.
Summarize and describe distributions.
6.SP.4 Display numerical data in plots on a number line, including dot plots, histograms, and box plots.
6.SP.5 Summarize numerical data sets in relation to their context, such as by the following:
a. Reporting the number of observations
b. Describing the nature of the attribute under investigation, including how it was measured and its units of measurement
c. Giving quantitative measures of center (median and/or mean) and variability (interquartile range and/or mean absolute deviation), as well as describing any overall pattern and striking deviations from the overall pattern with reference to the context in which the data were gathered
d. Relating the choice of measures of center and variability to the shape of the data distribution and context in which the data were gathered.
Th e purpose of the following investigation is to help your students learn how to formulate a statistical question—a question that can be answered with data.
Investigation 1.1 Formulating a Statistical Question
Overview
Th e GAISE report emphasizes the process of doing a statistical study. Th e fi rst step in that process requires the investigator to formulate a question that will be the focus of the study. Th is investigation provides a framework for teachers to use to help their students construct questions that can be addressed through the collection and analysis of data. Th ese types of questions are called statistical questions. In posing the questions, students will be encouraged to think about the population (subjects) to be studied, the variable (characteristic) to be measured, and the variation that may occur in the measurement of that characteristic.
As stated in the Common Core State Standards, a statistical question is one that "anticipates variability in the data and accounts for this variability in the analysis." Th e objective of this investigation is to assist students in generating statistical questions about their schools, neighborhoods, and interesting phenomena in the world and describing the type of data that would need to be collected to answer those questions.
GAISE Components
Th is investigation stresses the fi rst component (formulate a question) of statistical problem solving put forth in the GAISE report. It can be used with GAISE Level A and Level B students.
Learning Goals
Students will be able to do the following after fi nishing this investigation:
* Distinguish statistical questions from nonstatistical questions
* Identify the population (subjects) to be studied
* Identify the data (values of a variable) to be collected
* Develop an intuitive understanding of the expected variation in the data
Common Core State Standards for Mathematical Practice
1. Make sense of problems and persevere in solving them.
4. Model with mathematics.
Common Core State Standards Grade Level Content
6.SP1 Recognize a statistical question as one that anticipates variability in the data related to the question and accounts for it in the answers.
NCTM Principles and Standards for School Mathematics
Data Analysis and Probability
Grades 6–8 Formulate questions that can be addressed with data and collect, organize, and display relevant data to answer them.
Materials
Statistical Questions Worksheet Level A and Level B
Estimated Time
One day
Instructional Plan
1. Begin the investigation by asking your students what they would be interested in fi nding out about their school, neighborhood, or families and friends. Many questions students generate will be interesting, but may not be statistical questions. Discuss with your students that a statistical question is one that can be answered with data and that variability in the data is expected. A well-written statistical question refers to a population of interest, a measurement of interest, and anticipates answers that vary.
While the question, "How old is my math teacher?" might be of interest, it is not a statistical question because there is only a single subject, and hence no variability. "How old are the teachers in our school?" is a statistical question because "teachers in our school" is the population, "age" is the measurement variable, and we expect several ages.
A well-written statistical question refers to a population of interest, a measurement of interest, and anticipates answers that vary.
Help your students understand that nonstatistical questions may be too broad or specifi c. Th e question, "Do people like pizza?" is too broad. It is unclear exactly what the population is. A better version would be, "Of all the 4th-graders in our school, who likes pepperoni pizza?" Th e population is "the 4th-graders in our school," the measurement is "like or don't like pepperoni pizza," and we would expect some people to like this type of pizza and some not to like it. Th e question, "How many words are in this sentence?" is narrow and has no variability in its answer. However, "How many words are in the sentences in this book?" is a statistical question. Th e population is "all the sentences in this book," the measurement is the "length of the sentences," and we would expect the sentences to be diff erent lengths.
2. Pose the following question to your students and have them decide whether it is a statistical question. "How old is my pet dog?" Th is is not a statistical question because there is no variability—there is a single subject or unit, and hence no variability. Discuss with your students how this question could be rewritten into a statistical question about the class. One suggestion: "How old are the pets of the students in our class?" Th e population of interest is the "students' pets," the measure-
ment is the "pets' ages," and we would expect the pets would be diff erent ages.
3. Pose the question, "What is my favorite topping on a pizza?" Ask your students why this is not a statistical question, and ask them to rewrite it into a statistical question. Possible answer: "What do the students in this class prefer as their favorite topping on a pizza?" Th e population is the "students in class," the measurement is their "favorite pizza topping," and we would expect diff erent answers such as cheese, sausage, or pepperoni.
4. Place your students into groups of four. Give each group the appropriate level A or B list of questions in Table 1.1.1 or Table 1.1.2. For each question, the groups should indicate whether the question is a statistical question and give reasons for their answer. If they answer that the question is a statistical one, they should specify the
population, measurement taken, and expected variation. If it is not a statistical question, they should explain why it is not a statistical question and rewrite it so it is a statistical question.
Table 1.1.1: Level A Questions
| Question | Statistical Question (Y or N) | Explain Your Answer | Question | Statistical Question (Y or N) | Explain Your Answer |
|---|---|---|---|---|---|
| What colors are the shoes worn by the teachers in our school? | | | How many languages does my friend speak? | | |
| What are the shapes of all the buttons on the clothes worn by the students in this class? | | | How far can I jump? | | |
| How many times does the word “bridge” appear in the rhyme “London Bridge Is Falling Down”? | | | Does my best friend like McDonald’s Happy Meals? | | |
| How many pockets do I have? | | | Is my last name the longest name in class? | | |
Table 1.1.2: Level B Questions
| Question | Statistical Question (Y or No) | Explain Your Answer | Question | Statistical Question (Y or No) | Explain Your Answer |
|---|---|---|---|---|---|
| Can I roll my tongue? | | | Who was the oldest U.S. president when inaugurated? | | |
| How do the lengths of the f irst names of students in class compare to the lengths of their last names? | | | Are students in our class who are 4’5” or taller able to jump higher than students who are shorter than 4’5”? | | |
| Am I going to win a prize at the school carnival? | | | Which brand of pizza has the most pepperoni? | | |
| What is the longest- lasting brand of AA batteries? | | | Do plants grow better under colored lights? | | |
| A teacher asks her class, “What is your shoe size?” | | | Is it easier to remember a set of objects or a list of words? | | |
| Which brand of bubble gum holds its f lavor the longest? | | | | | |
5. Discuss with your students their answers to each question. Following are suggested answers.
Table 1.1.3: Suggested Answers to Level A Questions
| Question | Statistical Question (Y or N) | Explain Your Answer |
|---|---|---|
| What colors are the shoes worn by the teachers in our school? | Y | Population is teachers in school; measurement is shoe color, data are various colors |
| What are the shapes of all the buttons on the clothes worn by the students in this class? | Y | Population is all the buttons worn by students in class; measurement is button shape; data are various shapes |
| How many times does the word “bridge” appear in the rhyme “London Bridge Is Falling Down”? What is the frequency of the words that appear in the nursery rhyme “London Bridge is Falling Down”? | N | There is one word in the population, hence no variability—only single frequency for an answer. Population is all words in the rhyme; measurement is number of times each appears; data are words with their frequency of occurrence |
| How many pockets do I have? How many pockets do the students in class have on the clothes they are wearing today? | N | There is one person in the population, hence no variability in number of pockets I have. Population is all students in class; measurement is number of pockets; data are 0, 1, 2, … |
| How many languages does my friend speak? How many languages do the students in my school speak? | N | There is one person in the population, hence no variability—only one number for an answer. Population is all students at my school; measurement is number of languages each student speaks; data are 1, 2, 3, … |
| How far can I jump? How far can the students in this class jump? | N | There is one person in the population, hence no variability—only one distance. Population is all students in class; measurement is distance one can jump; data are real numbers |
| Does my best friend like McDonald’s Happy Meals? Of the f fith-graders in our school, who likes McDonald’s Happy Meals? | N | There is one person in the population—my friend—so there is no variability only one answer—yes or no. Population is all f fith-graders in our school; measurement is yes/no liking of Happy Meals; data are a listing of students with yes or no response for each |
| What is my sister’s favorite animal at the zoo? Which animal in the local zoo would the f fith-graders pick as their favorite? | N | There is one person in the population, hence no variability—only one animal name for an answer. Population is f fith-graders; measurement is favorite zoo animal; data are various animals |
| Is my last name the longest name in class? How long are the last names of students in this class? | N | There is one person in the population, hence there is no variability—only one answer. Population is class students; measurement is length of last name; data are various last names |
Table 1.1.4: Suggested Answers to Level B Questions
| Question | Statistical Question (Y or N) |
|---|---|
| Can I roll my tongue? How do boys and girls compare regarding the ability to roll their tongues? | N |
| How do the lengths of the f irst names of students in class compare to the lengths of their last names? | Y |
| If everyone in class plays “spin- the-wheel” at the school carnival, what are their chances of winning? | Y |
| What is the longest-lasting brand of AA batteries? | Y |
| A teacher asks her class, “What is your shoe size?” | Y |
| Which brand of bubble gum holds its f alvor the longest? | Y |
| Who was the oldest U.S. president when inaugurated? How old were the U.S. presidents when they were inaugurated? | N |
| Are students in our class who are 4’5” or taller able to jump higher than students who are shorter than 4’5”? | Y |
| Which brand of pizza has the most pepperoni? | Y |
| Do plants grow better under colored lights? Do tomato plants grow taller under red light, blue light, or daylight? | N |
| Is it easier to remember a set of objects or a list of words? Are the seventh-graders able to memorize the names of a set of objects better than a list of words? | N |
Assessment with Answers
Level A
A third-grader's favorite sport was soccer. She asked all the students in her room, "Who likes to watch a soccer game?" Explain why this is a statistical question. The population is "all the students in her room." The measurement is "whether a student likes to watch soccer." Variation is expected with some students answering "yes" and some answering "no."
Level B
A group of seventh-grade students asked the question, "What's the fastest animal in the world?"
1. Explain why this is not a statistical question. There is no variability— there is just one fastest animal.
2. Rewrite the question so it is a statistical question. How many miles per hour can various animals run?
Extension
Ask your students to choose one of the questions they have decided is a statistical question or one they have rewritten into a statistical question. Have students discuss how they might collect data to help answer the question and describe the variability in the data they might expect.
Note: Some of the questions in tables 1.1.1 and 1.1.2 will be addressed in the investigations in this book.
References
Franklin, C., G. Kader, D. Mewborn, J. Moreno, R. Peck, M. Perry, and R. Scheaff er. 2007. Guidelines for assessment and instruction in statistics education (GAISE) report: A pre-k–12 curriculum framework. Alexandria, VA: American Statistical Association.
National Council of Teachers of Mathematics. 2000. Principles and standards for school mathematics. Reston, VA: National Council of Teachers of Mathematics.
Common Core State Standards for Mathematics, www.corestandards.org.
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Review
PET/CT and Conventional Imaging for the Assessment of Neuroendocrine Prostate Cancer: A Systematic Review
Francesco Dondi 1, * , Alessandro Antonelli 2 , Nazareno Suardi 3 , Andrea Emanuele Guerini 4 , Domenico Albano 1 , Silvia Lucchini 1 , Luca Camoni 1 , Giorgio Treglia 5,6,7 and Francesco Bertagna 1
1 Nuclear Medicine Department, University of Brescia and ASST Spedali Civili di Brescia, 25123 Brescia, Italy
2 Department of Urology, AOUI Verona, University of Verona, 37134 Verona, Italy
3 Department of Urology, Spedali Civili di Brescia, 25123 Brescia, Italy
4 Department of Radiation Oncology, University of Brescia and ASST Spedali Civili di Brescia, 25123 Brescia, Italy
5 Nuclear Medicine, Imaging Institute of Southern Switzerland, Ente Ospedaliero Cantonale, 6500 Bellinzona, Switzerland
6 Department of Nuclear Medicine and Molecular Imaging, Lausanne University Hospital, University of Lausanne, 1011 Lausanne, Switzerland
7 Faculty of Biomedical Sciences, Università della Svizzera Italiana, 6900 Lugano, Switzerland
* Correspondence: firstname.lastname@example.org
Simple Summary: Neuroendocrine prostate cancer is a rare neoplasm with aggressive behavior and poor prognosis. Its diagnostic approach is challenging since no specific features are present when using conventional imaging or positron emission tomography (PET). The aim of this systematic review was, therefore, to evaluate the role of these imaging modalities for the assessment of neuroendocrine prostate cancer. At present, it is still uncertain which tracer performs best, and although [ 18 F]FDG has been evaluated and seems to offer some advantages in availability and clinical staging, other tracers may be more useful to understand tumor biology or identify targets for subsequent radioligand therapy. Further research is therefore desirable. In contrast, data are still limited to draw a final conclusion on the role and the specific characteristics of CI in this rare form of neoplasm, and therefore, more studies are needed in this setting.
Abstract: Background: Neuroendocrine prostate cancer (NEPC) is a rare neoplasm, and the role of both conventional imaging (CI) and positron emission tomography/computed tomography (PET/CT) for its assessment has not been clearly evaluated and demonstrated. The aim of this systematic review was to analyze the diagnostic performances of these imaging modalities in this setting. Methods: A wide literature search of the PubMed/MEDLINE, Scopus, and Web of Science databases was made to find relevant published articles about the role of CI and PET/CT for the evaluation of NEPC. Results: 13 studies were included in the systematic review. PET/CT imaging with different radiopharmaceuticals has been evaluated in many studies (10) compared to CI (3 studies), which has only a limited role in NEPC. Focusing on PET/CT, a study used [ 18 F]FDG, labeled somatostatin analogs were used in 5 cases, a study used [ 68 Ga]Ga-FAPI-04, [ 68 Ga]Ga-PSMA-11 was evaluated in a single case, and two works used different tracers. Conclusion: Published data on the role of PET/CT for the assessment of NEPC are limited. At present, it is still uncertain which tracer performs best, and although [ 18 F]FDG has been evaluated and seems to offer some advantages in availability and clinical staging, other tracers may be more useful to understand tumor biology or identify targets for subsequent radioligand therapy. Further research is therefore desirable. In contrast, data are still limited to draw a final conclusion on the role and the specific characteristics of CI in this rare form of neoplasm, and therefore, more studies are needed in this setting.
Citation: Dondi, F.; Antonelli, A.; Suardi, N.; Guerini, A.E.; Albano, D.; Lucchini, S.; Camoni, L.; Treglia, G.; Bertagna, F. PET/CT and Conventional Imaging for the Assessment of Neuroendocrine Prostate Cancer: A Systematic Review. Cancers 2023, 15, 4404. https://doi.org/10.3390/ cancers15174404
Academic Editor: Hideya Yamazaki
Received: 4 July 2023
Revised: 28 August 2023
Accepted: 1 September 2023
Published: 3 September 2023
Copyright: © 2023 by the authors. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (https:// creativecommons.org/licenses/by/ 4.0/).
Keywords: neuroendocrine prostate cancer; NEPC; positron emission tomography; PET/CT; conventional imaging
Cancers2023,15, 4404. https://doi.org/10.3390/cancers15174404
https://www.mdpi.com/journal/cancers
1. Introduction
Neuroendocrine prostate cancer (NEPC) is a rare type of prostate cancer (PCa) that can arise de novo from normal prostatic neuroendocrine cells that undergo oncogenic mutation (0.5–2% of the cases) or can derive after neuroendocrine transdifferentiation of adenocarcinoma in the case of castration-resistant prostate cancer (CRPC) (17–20%) [1–3]. While the first form is particularly rare, this latter type is characterized by the presence of particular molecular changes that can make it resistant to traditional castration therapy, including androgen receptor-targeted drugs [4]. In the presence of metastatic CRPC, treatment-emergent NEPC can be observed as the development of resistance to androgen deprivation therapy (ADT) and after progression, while taking potent androgen receptor signaling inhibitors, such as abiraterone and enzalutamide. In this setting, previous analyses indicated that the treatment-emergent form of NEPC detected using immunohistochemical staining is present in approximately 20% to 30% of metastatic castration-resistant tumors [2]. Even if the exact pathogenesis of neuroendocrine differentiation in the human prostate is still poorly understood, it is presumed that no single pathway is involved in this phenomenon, and many different mechanisms of ADT resistance have been proposed, such as the development of genetic changes that restore the presence of androgen receptor (AR) signaling even when androgen levels are low (including genomic amplification), mutation that convert antiandrogens into agonists and splice variants of AR that can activate them independently from the presence of a specific ligand. Moreover, upregulation of glucocorticoid receptor levels and activity can bypass the blockade of AR and lineage switching in letting tumor cells acquire phenotypic characteristics typical of a cell lineage whose survival does not depend on the drug target [1].
Speaking of epidemiology, it is thought that the incidence of NEPC could be higher than what is really observed, given the recent introduction of new androgen signaling inhibitors, the limited number of biopsies performed, and the frequent misclassification of NEPC as high-grade prostate adenocarcinoma [2]. Furthermore, a mixed form of adenocarcinoma and NEPC can be present [5].
From a clinical point of view, NEPC is far more aggressive than adenocarcinoma, and pure NEPCs are rapidly more symptomatic, locally advanced, or metastatic at the time of diagnosis, with the frequent presence of visceral metastases [6–10]. In this scenario, the prognosis of patients affected by NEPC is extremely poor, with a median estimated survival of around 10 months [11]. Most patients with this neoplasm die within 1 to 2 years from the diagnosis. Interestingly, in the setting of localized disease, an increased proportion of neuroendocrine differentiation confers an adverse prognosis independent from the Gleason grade or tumor stage [2]. In this setting, the main clinical presentations of NEPC include androgen deprivation resistance, low levels of prostate-specific antigen (PSA), the disproportion between PSA kinetic and tumor burden progression, and the eventual increase in neuroendocrine tumor markers [3,12]. These markers can be useful for the diagnosis and the evaluation of the transdifferentiation of the disease; chromogranin A (CgA) and neuron-specific enolase (NSE) reflect its neuroendocrine nature and could also be used as prognostic factors [13,14]. Several published studies have reported a correlation between CgA and NSE serum levels, androgen independence, progression of the disease, and prognosis. [9]. Although still not well defined, the reasons that might cause the poor prognosis of NEPC may include active neuroendocrine cell production of growth factor and the lack of AR in such cells, which would also account for unresponsiveness to hormonal treatment, as mentioned. In patients with castration-resistant tumors, elevated serum levels of CgA are significant predictors of poor prognosis independently from serum PSA levels. Moreover, pretreatment measurement of CgA and NSE levels can predict prognosis after hormone therapy [13].
There are many clues that can suggest the presence of NEPC at presentation, such as the limited temporal response to primary ADT (<6 months), high PSA nadir on ADT, the presence of visceral metastases (including lungs, liver, and central nervous system), the predominant presence of lytic bone metastases, low absolute PSA levels compared to the burden of the disease and the elevation of the aforementioned neuroendocrine serum markers [2]. Even if these clinical features may be suggestive of the presence of NEPC, the final diagnosis currently remains based on histopathology. Therefore, biopsy should be strongly considered whenever clinical features and/or serum markers are suggestive of neuroendocrine differentiation. In this setting, standard pathologic evaluation should quantify the level of expression of the aforementioned markers and determine if small cell features are present. As previously underlined, a diagnosis of neuroendocrine differentiation has both prognostic and therapeutic implications from a pathological point of view [2].
Speaking of diagnosis, conventional imaging (CI) such as magnetic resonance (MR), computed tomography (CT), and ultrasound (US) are useful for staging and restaging of classic PCa, even if their role in NEPC could be limited and not specific [15,16]. In particular, CI cannot directly differentiate between NEPC and other prostatic neoplasms, but this imaging modality can reflect the presence of aggressive forms. In this setting, the presence of necrosis and hemorrhage, local invasion, nodal and visceral metastases, and their rapid progression may suggest the presence of NEPC, which often requires histopathologic confirmation, as stated before [17].
Focusing on therapy, the treatment of NEPC relies mainly on the use of systemic therapy, such as chemotherapy with carboplatin and cabazitaxel, which are the main therapeutic agents used in the first-line regimen [5,18]. Since this neoplasm is a highly proliferative subset of PCa, it frequently responds rapidly to cytotoxic chemotherapy with minimal or absent response to ADT, as previously underlined [2]. Furthermore, if intensive neuroendocrine differentiation is identified, it should be considered milder ADT, such as intermittent androgen deprivation or antiandrogen monotherapy, to slow this differentiation and/or neuroendocrine-targeted therapy. Potential therapies directed toward neuroendocrine hormones and/or their antagonists, such as somatostatin, bombesin, and serotonin, have been receiving attention in the past, however, without clear evidence of their therapeutic role [13].
Generally speaking, it is known that nuclear medicine has a prominent role in the assessment of PCa, in particular with the use of positron emission tomography/computed tomography (PET/CT) and bone scintigraphy [19]. In the first case, prostate-specific membrane antigen (PSMA) labeled with both [ 18 F] or [ 68 Ga] is a radiopharmaceutical that has proved its high diagnostic accuracy for the evaluation of PCa and enables the selection of patients that could be treated with [ 177 Lu]Lu-PSMA-617. Furthermore, this imaging modality can also be used for the evaluation of different medical conditions not related to the prostate, both malignant and benign [3,20–22]. As mentioned, NEPC can evolve from classical PCa with a neuroendocrine transdifferentiation process, and therefore, different tracers have been used to study such neoplasm. In this scenario, [ 18 F]fluorodeoxyglucose ([ 18 F]FDG), a radiolabeled glucose analog and the most used radiopharmaceutical worldwide, is a tracer able to evaluate a wide range of tumors, and in PCa, it can reflect the possible resistance to castration therapy that can lead to the presence of NEPC, even if clear evidence has not been demonstrated in this setting [3,23,24]. Interestingly, the use of PET/CT with radiolabeled somatostatin analogs in PCa and in particular for NEPC, has been investigated in order to eventually propose peptide receptor radionuclide therapy (PRRT) for these patients [25,26].
The aim of this systematic review is, therefore, to evaluate the role of both CI and PET/CT, performed with different tracers, for the assessment of NEPC.
2. Materials and Methods
2.1. Search Strategy
A wide literature search of the PubMed/MEDLINE, Scopus, and Web of Science databases was performed in order to find significant published articles concerning the role of PET/CT and CI for the assessment of NEPC. The algorithm used for the research was the following: "neuroendocrine" AND "prostate" AND ("PET" OR "positron emission tomography" OR "MR" OR "magnetic resonance" OR "CT" OR "computed tomography" OR "imaging" OR "diagnosis" OR "US" OR "ultrasound" OR "staging").
No beginning date limit was applied to the search, and it was updated until 1 March 2023. Preclinical studies, conference proceedings, case reports with only one patient, reviews, or editorials were excluded. To expand our search, the references of the retrieved articles were also screened for additional papers.
2.2. Study Selection
Two researchers (F.D. and D.A.) independently reviewed the titles and abstracts of the retrieved articles. The same two researchers then independently reviewed the full-text version of the remaining articles to determine their eligibility for inclusion.
2.3. Quality Assessment
The quality assessment of these studies, including the risk of bias and applicability concerns, was carried out using the Quality Assessment of Diagnostic Accuracy Studies version 2 (QUADAS-2) evaluation [27].
2.4. Data Extraction
For each study included in the review, data concerning authors' names, year of publication, country of origin, design of the study, radiopharmaceuticals used if applicable, number of patients, type of scan and tomograph used, and the setting were collected. The main findings of the articles are reported in the Results section.
3. Results
3.1. Literature Search
A total of 3427 articles were extrapolated with the computer literature search, and by reviewing the titles and abstracts, 3414 of them were excluded because the reported data were not within the field of interest of this review. Thirteen articles were therefore selected and retrieved in full-text version [28–40]; no additional studies were found screening the references of these articles (Figure 1).
In general, the quality assessment using QUADAS-2 evaluation underlined the presence of a high risk of bias and applicability concerns in some of these studies for patient selection, and this is mainly related to the fact that these studies were characterized by heterogeneous cohorts (Figure 2).
Among the total number of studies included in the systematic review, 10 were of a retrospective nature [28,29,33–40], whereas 2 had a prospective design [28,29], and in 1 case, it was not specified its nature [32]. Ten studies focused on PET/CT imaging [28,37], while three studies were performed using CI [38–40].
Speaking about radiopharmaceuticals used for PET/CT imaging, 1 of the study was performed with [ 18 F]FDG [29], in 3 cases [ 68 Ga]Ga-DOTANOC was used [28,30,31], in 2 cases [ 68 Ga]Ga-DOTATATE was used [32,36], [ 68 Ga]Ga-FAPI-04 was used in 1 case [34], 1 study was performed with [ 68 Ga]Ga-PSMA-11 [35] and lastly two works used different tracers: 1 with [ 68 Ga]Ga-PSMA, [ 68 Ga]Ga-DOTATATE and [ 18 F]FDG [33] and 1 with [ 18 F]PSMA-1007, [ 18 F]-AIF-NOTA-octreotide and [ 18 F]FDG [37].
The main characteristics of the studies and their results are briefly presented in Table 1.
Table 1. Characteristics of the studies selected and considered for the systematic review.
Table 1. Cont.
Table 1. Cont.
* 15 anaplastic prostate cancer and 12 small cell cancer of the prostate. N.: number; NEPC: neuroendocrine prostate cancer; Pts: patients; Ref: reference; NET: neuroendocrine tumor; NED: neuroendocrine differentiation; CRCP: castration-resistant prostate cancer; PET/CT: positron emission tomography/computed tomography; PSA: prostate-specific antigen; MR: magnetic resonance; US: ultrasound, CI: conventional imaging; [ 18 F]FDG: [ 18 F]fluorodeoxyglucose; PSMA: prostate-specific membrane antigen; SUV: standardized uptake value; ns: not specified.
3.2. PET/CT Studies
As previously underlined, different studies evaluated the value of PET/CT imaging for the assessment of NEPC [28–37], demonstrating some insights into its possible usefulness.
3.2.1. [ 18 F]FDG
Speaking about [ 18 F]FDG PET/CT, its role in NEPC was first evaluated by Spratt et al. [29], revealing the presence of tracer-avid lesions in 15/23 patients. Interestingly, PET was able to demonstrate 5.4% and 6.8% of the lesions that were not detected with CT or bone scan, respectively. For soft tissue lesions, 95.1% of them were demonstrated using hybrid imaging, with PET that was also able to underline a lesion not detected using CT. Notably, an average standardized uptake value (SUVmax) of 4.52 for bone lesions and 6.65 for soft tissue lesions were reported. In a prognostic setting, patients with more bone and soft tissue avid lesions at PET/CT (p values 0.06 and 0.01, respectively) or higher average SUVmax at the bone and soft tissue lesions (p value 0.04 and <0.01, respectively) had lower survival. Interestingly, no correlation between PET results and serum marker levels was reported.
3.2.2. Radiolabeled Somatostatin Analogs
The first study in this setting was performed by Fanti et al. [28], who evaluated different unusual neuroendocrine tumors comprising 3 NEPC with [ 68 Ga]Ga-DOTANOC. PET/CT was true positive in 1/3 cases and true negative in 2/3 cases.
[ 68 Ga]Ga-DOTANOC PET/CT was more recently used by Savelli et al. [30] to evaluate 2 cases of NEPC, reporting that it had the capability to visualize bone metastatic lesions, in particular for lytic ones that had higher uptake, but also lymphangitic neoplastic spread to the lungs. In subsequent work, the same authors evaluated six patients with CRPC again with [ 68 Ga]Ga-DOTANOC PET/CT, revealing in 2 of them the presence of bone or lung metastases, however, with scant uptake (SUVmean 1.57); interestingly, a case of false negative scan in comparison with [ 18 F]-choline was reported [31]. Similarly, somatostatin receptor expression in CRPC was evaluated by Gofrit et al. [32] with [ 68 Ga]Ga-DOTATATE, confirming its ability to detect both blastic and lytic bone metastases with a moderately high tracer uptake on most of the blastic ones (mean SUVmax for blastic lesions 5.3, 7.2 for lytic or nodal lesions). Moreover, the authors reported that patients with multiple bone lesions had a significantly higher SUVmax compared with patients with few metastases (p value 0.05), but, despite that, only a low correlation was reported between the degree of uptake and PSA or Gleason Score (R 2 0.02 and 0.29, respectively).
Bilen et al. [36] evaluated both 15 CRPC and 2 NEPC subjects with [ 68 Ga]Ga-DOTATATE PET/CT in a prognostic setting. All patients demonstrated at least one avid lesion (mean SUVmax 12.19), and all seven patients with marked uptake were non-responders to systemic therapy and died in the follow-up, with a mean time to death of 8.1 months. In the group of six patients with moderate uptake, four died with a median time to death of 13.3 months, and of the surviving patients, none of them had the presence of NEPC. In the remaining group of three patients with mild uptake, all patients were still alive after 36 months of follow-up. Interestingly, the two patients with NEPC had higher SUVmax in comparison with the 14 subjects with non-NEPC CRPC (p value 0.04).
3.2.3. PSMA
Sixty patients with liver metastases were evaluated with [ 68 Ga]Ga-PSMA-11 PET/CT, in comparison with CT or MR, by Mattoni et al. [35] in a multicentric study and in 2/9 subjects that performed biopsy, the presence of NEPC was demonstrated. The overall detection rate of PET/CT was 92%, with a moderate and positive correlation between PSA and the presence of metastatic disease. Overall, the sensitivity, specificity, positive predictive value, negative predictive value, and accuracy were 58%, 92%, 82%, 77%, and 78%, respectively. The mean SUVmax of all PSMA-positive lesions was 20, significantly higher than the mean uptake of normal liver (p value < 0.01). A higher number of liver lesions was demonstrated in subjects with PSMA-positive PET compared to PSMA-negative scan (p value 0.013), and, in multivariate analysis, PSA and PET/CT were associated with the presence of liver metastases (p value < 0.01). Interestingly, the authors also build a radiomics model combining both CT and PET features for the detection of liver lesions, with an area under the curve of 0.807.
3.2.4. Other Tracers and Study with Mixed Radiopharmaceuticals
Iravani et al. [33] performed an interesting study by comparing the results of [ 68 Ga]GaPSMA-11, [ 68 Ga]Ga-DOTATATE, and [ 18 F]FDG PET/CT scans in 5 NEPC subjects, revealing that the median whole-body tumor volume was significantly higher for [ 18 F]FDG (280 mL) compared to other radiopharmaceuticals (7 mL for [ 68 Ga]Ga-PSMA-11 with a p value of 0.01 and 0 for [ 68 Ga]Ga-DOTATATE with a p value of 0.02). Moreover, the median SUVmax values of the most avid lesion for [ 68 Ga]Ga-PSMA-11, [ 68 Ga]Ga-DOTATATE, and [ 18 F]FDG were 13, 9.8 and 18.5, respectively. Three patients demonstrated both [ 18 F]FDG and [ 68 Ga]Ga-PSMA avidity, and for 2 of them, avidity of [ 68 Ga]Ga-DOTATATE was also reported, even if spatial discordance for the lesions between the tracers was present, with [ 18 F]FDG avid ones that lacked either [ 68 Ga]Ga-PSMA and [ 68 Ga]Ga-DOTATATE uptake. Interestingly, immunohistochemistry findings were consistent with both [ 68 Ga]Ga-PSMA and [ 68 Ga]Ga-DOTATATE results.
More recently, Vargas Ahumada et al. [37] performed an analysis on NEPC induced from CRPC with [ 18 F]-PSMA-1007, [ 18 F]-AIF-NOTA-octreotide and [ 18 F]FDG, revealing that these tracers were able to assess the presence of bone, visceral, nodal and prostate lesions. Interestingly, [ 18 F]-PSMA-1007 had the greater uptake compared to other radiopharmaceuticals: average SUVmax for [ 18 F]-PSMA-1007, [ 18 F]-AIF-NOTA-octreotide and [ 18 F]FDG were 6.75, 4.6 and 6.4, respectively. Nevertheless, [ 18 F]FDG was identified as the best tracer for the overall identification of such lesions, in particular for visceral localization. Moreover, 85/273 lesions detected were concordant between [ 18 F]-PSMA-1007 and [ 18 F]FDG, and the summation of both these imaging modalities reached a visualization rate of 98.9% of all the lesions present at CT. [ 18 F]-AIF-NOTA-octreotide showed only a low detection rate.
Lastly, Kesch et al. [34] performed an interesting and innovative study with [ 68 Ga]GaFAPI-04 PET/CT in a theranostic setting with immunohistochemistry, performing two scans on CRPC subjects underlying the presence of multiple bones and nodes metastatic lesions. In this setting, the mean SUVmax for bone, nodal, and lung metastases were 12.19, 12.58, and 6.30, respectively.
3.3. CI Studies
As mentioned, the role of CI in NEPC is limited due to the fact that it can underline features that are nonspecific and reflect the aggressiveness of these neoplasms. As a consequence, only a few studies have been published in this setting [38–40].
First, Schwartz et al. [38] evaluated the role of CT in the assessment of small cell (12 patients) and anaplastic PCa (15 subjects) and correlated its findings with PSA levels. The authors reported that, in the small cell cancer group with prostatic or abdominal masses, the mean PSA levels were less than 10 ng/mL, compared to less than 20 ng/mL for the group with small cell cancer and bone metastases.
More recently, He et al. [39] proposed an evaluation of 2 NEPC patients, underlying the fact that the US revealed the presence of an enlarged prostate while CT confirmed such insights, the presence of enhancing tissue, and eventually multiple metastases. MR characteristics of NEPC, performed; however, only in one patient, were the presence of a higher signal in T2-weighted imaging (T2WI) and diffusion-weighted imaging (DWI) sequences, arterial phase enhancement, irregular form, and/or the presence of metastases.
Lastly, Feng et al. [40] described the MR appearance of uncommon prostatic malignancies, including three subjects with small cell carcinoma. In this setting, T2WI imaging revealed a large heterogeneous, mildly hyperintense prostatic mass with an incomplete capsule, while T1WI imaging underlined an isointense lesion with mild or moderate heterogeneous enhancement after contrast agent injection. Moreover, invasion of adjacent structures (bladder, seminal vesicles, and rectum) and lymphatic or distant metastases were reported.
4. Discussion
NEPC is an aggressive form of PCa characterized by rapidly progressive symptoms, and it is locally advanced or metastatic at the time of diagnosis with frequent visceral metastasis, resulting in an extremely poor prognosis [6–11].
On the basis of these characteristics, imaging is mandatory for its work-up and assessment in order to evaluate disease extension and the possible presence of metastases. As mentioned, CI plays an important role in the evaluation of PCa andMR, CT, and US are useful for staging and restaging of classic forms of this tumor, even if their role in NEPC could be limited and not specific [15,16]. In particular, the role of CI in NEPC has been mostly evaluated in a staging setting in order to improve its preoperative diagnosis. Moreover, CI cannot directly differentiate NEPC from other PCa tumors since it gives only indirect information about the presence of necrosis, local invasion, metastases, or rapid progression [15,17]. As a consequence, only a small number of studies regarding the role of CI in NEPC have been published and were therefore included in the review, most of them with a limited sample of patients analyzed [38–40]. In general, CT revealed the ability to assess both primary NEPC and its metastases, while the role of MR seemed to have a relative ability to characterize this neoplasm, in particular for T2W1 and DWI sequences. However, data are still limited to draw a final conclusion on the role and the specific characteristics of CI in this rare form of neoplasm, and therefore, more studied are needed in this setting.
In contrast, the role of nuclear medicine imaging (and in particular PET/CT) in NEPC has been more widely studied [28–37]. In this setting, our review was performed considering different radiopharmaceuticals in order to assess their diagnostic usefulness for NEPC, and different mechanisms of uptake have been described for each tracer. Starting from [ 18 F]FDG, it has been reported that NEPC is characterized by an elevation of glycolytic activity, resulting in an augmented expression of hexokinase and some specific glucose transporter (GLUT) isoforms with high affinity to the tracer [41]. Conversely, a reduction in PSMA expression as a result of augmented lineage plasticity related to AR inhibition in NEPC has been reported, and furthermore, this expression inversely correlates with the presence of markers of neuroendocrine differentiation [41,42]. Speaking of radiolabeled somatostatin analogs, it is known that normal prostatic tissue is characterized by physiological tracer uptake, but it has been demonstrated that neuroendocrine transdifferentiation can lead to both a reduction in PSMA levels and an augmented expression of somatostatin receptor (SSTR), in particular, SSTR2, that are a specific site of binding of such tracers [25,42]. Lastly, in the case of FAPI PET/CT, it has been demonstrated that FAPI expression increases with the progression of Pca, in particular, in CRPC that, as mentioned, can be associated with the development of NEPC [34].
[ 18 F]FDG is the most common PET radiopharmaceutical used worldwide, and it is known that while tracer avidity is low in naive PCa, its uptake can be increased in CRPC and NEPC [3]. In this setting, three articles included in the review used [ 18 F]FDG, and two of them compared it with other PET radiopharmaceuticals [29,33,37]. In general, it proved its ability to detect NEPC and its metastases, demonstrating a higher number of lesions compared to other tracers. Interestingly, some prognostic insights for [ 18 F]FDG PET/CT were proposed. Nevertheless, it is important to underline that the mentioned findings on the role of [ 18 F]FDG are based on the analyses of the accumulated clinical data in PCa patients rather than the analyses of the mechanism of NEPC. In this setting, this tracer cannot differentiate neuroendocrine differentiation from complex PCa cases by only relying on tumor uptake mechanism, and cases of positive PET/CT scans have been mainly described in treatment-induced NEPC [43]. Generally speaking, it has been reported that neuroendocrine differentiation is not always associated with [ 18 F]FDG uptake, and moreover, PET/CT with this radiopharmaceutical is usually performed for high-grade and poorly differentiated forms of neuroendocrine neoplasms [3,44,45].
Another important class of positron emitters radiotracers particularly studied in NEPC are somatostatin analogs, given their ability to assess the presence of somatostatin receptors, possibly enabling the use of PRRT in these patients [25,26]. In this setting, [ 68 Ga]GaDOTANOC has demonstrated good accuracy for the assessment of NEPC and CRPC and their metastases, even if sometimes scant uptake of such lesions has been reported [28,30,31]. Some studies also evaluated the role of [ 68 Ga]Ga-DOTATATE PET/CT, revealing that this imaging modality was able to underline the presence of NEPC metastases. Interestingly, some insights on its prognostic value were also proposed in the setting of therapy response and survival. The ability to reveal the presence of NEPC was also demonstrated for PSMA PET/CT even if, compared to [ 18 F]FDG, discordant findings have been described [33,35,37]. Interestingly, PSMA PET/CT demonstrated high specificity for the assessment of liver metastases in CRPC [35]. Lastly, a single study reported some insights on the usefulness of [ 68 Ga]Ga-FAPI-04 PET/CT for the evaluation of bone and node metastases in NEPC [34].
Speaking about tracer uptake, based on the data reported in this review, it is hard to define clear evidence on which radiopharmaceutical has the greatest one. In particular, the studies included are characterized by a small cohort of patients, and in most of them, only the mean SUVmax values of all the patients for each tracer were reported. In general, a total of 36 subjects were evaluated with [ 18 F]FDG, 53 with radiolabeled somatostatin analogs, 73 with PSMA, and 2 with [ 68 Ga]Ga-FAPI-04. Overall labeled PSMA had the highest reported mean uptake (SUVmax 20) even if the range of mean SUVmax were really heterogeneous (18.5–4.52 for [ 18 F]FDG, 12.19–1.57 for labeled somatostatin analogs, 20–6.75 for labeled PSMA and 12.58–5.90 for [ 68 Ga]Ga-FAPI-04) to draw a final conclusion on tracer uptake.
As mentioned, some insights on the prognostic role of PET/CT in NEPC were proposed. Such findings were reported by Spratt et al. [29], who evaluated 23 NEPC with [ 18 F]FDG, and by Bilen et al. [36], who imaged 17 patients with both metastatic CRPC or NEPC with [ 68 Ga]Ga-DOTATATE. In the first case, patients with tracer-avid lesions or higher SUVmax had lower survival, while, in the second paper, subjects with marked uptake were non-responders to systemic therapy and died in the follow-up. Based on these findings, on the number of subjects included in both studies, and on the fact that the second paper also focused on CRPC subjects, clear evidence on the prognostic role of PET/CT in NEPC is not available, and further research is needed in this field.
Even if not included in this review, data published in the literature have also underlined the role of PET/CT imaging in PCa and NEPC in preclinical settings. In this scenario, it has been proposed that specific forms of NEPC, depending on their origin, can be imaged with different radiopharmaceuticals based on preclinical evidence [41,43,46,47]. Moreover, new tracers able to evaluate the presence of NEPC or its progression from CRPC are continuously developed and hopefully will help in the assessment of the disease [34,48–50]. Lastly, some interesting insights on the role of these new radiopharmaceuticals for the evaluation of treatment response with innovative drugs specific to NEPC have been reported [51].
As previously underlined, NEPC can develop as a de novo form arising from normal prostatic neuroendocrine cells or can derive after neuroendocrine transdifferentiation of PCa in the case of CRPC. These two tumoral entities are characterized using different clinical behavior and prognosis, and therefore, an imaging diagnostic tool able to characterize their differences would be helpful in the clinical management of such patients. However, our review is not able to clearly identify discrepancies in terms of PET/CT performances with different radiopharmaceuticals between de novo and derived NEPC since only a small amount of patients with the first type were included in the studies selected for the review and, therefore, clear evidence in this setting can not be underlined.
This review is not without limitations, and one of the most important is the fact that most of the studies included were performed only with small samples of patients, a fact that needs to be correlated with the rarity of NEPC. Furthermore, some of these studies were performed with heterogeneous cohorts, with the inclusion not only of patients with NEPC but also of CRPC subjects. Another significant limitation is that we evaluated the analyses of the accumulated clinical data in prostate cancer patients rather than the analyses of the mechanism of NEPC. In this setting, the insights reported by this review need to be confirmed using wider and multicentric studies.
5. Conclusions
In conclusion, published data on the role of PET/CT and CI for the assessment of NEPC are limited. In this setting, at present, it is still uncertain which tracer performs best, and although [ 18 F]FDG has been evaluated and seems to offer some advantages in availability and clinical staging, other tracers may be more useful to understand tumor biology or identifying a target for subsequent radioligand therapy. Moreover, it should be underlined that most of the available data concerned labeled somatostatin analogs, while only two papers evaluated the role of [ 18 F]FDG in this rare neuroendocrine neoplasia. Further research is therefore desirable, and the possibility to compare different tracers in future studies should be considered. In contrast, data are still limited to draw a final conclusion on the role and the specific characteristics of CI in this rare form of neoplasm, and therefore, more studies are needed in this setting.
Author Contributions: Conceptualization, F.D., F.B. and A.A.; methodology, G.T.; writing—original draft preparation, F.D., A.A. and N.S.; writing—review and editing, N.S., A.E.G., D.A., G.T., S.L., L.C. and F.B. All authors have read and agreed to the published version of the manuscript.
Funding: This research received no external funding.
Institutional Review Board Statement: Not applicable.
Informed Consent Statement: Not applicable.
Data Availability Statement: Data supporting the reported results can be found using the public PubMed/MEDLINE, Scopus and Web of Science databases.
Conflicts of Interest: The authors declare no conflict of interest.
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4. Santoni, M.; Scarpelli, M.; Mazzucchelli, R.; Lopez-Beltran, A.; Cheng, L.; Cascinu, S.; Montironi, R. Targeting prostate-specific membrane antigen for personalized therapies in prostate cancer: Morphologic and molecular backgrounds and future promises. J. Biol. Regul. Homeost. Agents 2014, 28, 555–563. [PubMed]
5. Conteduca, V.; Oromendia, C.; Eng, K.W.; Bareja, R.; Sigouros, M.; Molina, A.; Faltas, B.M.; Sboner, A.; Mosquera, J.M.; Elemento, O.; et al. Clinical features of neuroendocrine prostate cancer. Eur. J. Cancer 2019, 121, 7–18. [CrossRef] [PubMed]
6. Abbas, F.; Civantos, F.; Benedetto, P.; Soloway, M.S. Small cell carcinoma of the bladder and prostate. Urology 1995, 46, 617–630. [CrossRef]
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8. Sciarra, A.; Innocenzi, M.; Ravaziol, M.; Minisola, F.; Alfarone, A.; Cattarino, S.; Panebianco, V.; Buonocore, V.; Gentile, V.; Di Silverio, F. Role of neuroendocrine cells in prostate cancer progression. Urologia 2011, 78, 126–131. [CrossRef]
9. Vashchenko, N.; Abrahamsson, P.A. Neuroendocrine differentiation in prostate cancer: Implications for new treatment modalities. Eur. Urol. 2005, 47, 147–155. [CrossRef]
10. Amato, R.J.; Logothetis, C.J.; Hallinan, R.; Ro, J.Y.; Sella, A.; Dexeus, F.H. Chemotherapy for small cell carcinoma of prostatic origin. J. Urol. 1992, 147, 935–937. [CrossRef]
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12. Hvamstad, T.; Jordal, A.; Hekmat, N.; Paus, E.; Fosså, S.D. Neuroendocrine serum tumour markers in hormone-resistant prostate cancer. Eur. Urol. 2003, 44, 215–221. [CrossRef]
13. Sagnak, L.; Topaloglu, H.; Ozok, U.; Ersoy, H. Prognostic significance of neuroendocrine differentiation in prostate adenocarcinoma. Clin. Genitourin. Cancer 2011, 9, 73–80. [CrossRef] [PubMed]
14. Muoio, B.; Pascale, M.; Roggero, E. The role of serum neuron-specific enolase in patients with prostate cancer: A systematic review of the recent literature. Int. J. Biol. Markers 2018, 33, 10–21. [CrossRef] [PubMed]
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16. Stein, M.E.; Bernstein, Z.; Abacioglu, U.; Sengoz, M.; Miller, R.C.; Meirovitz, A.; Zouhair, A.; Freixa, S.V.; Poortmans, P.H.; Ash, R.; et al. Small cell (neuroendocrine) carcinoma of the prostate: Etiology, diagnosis, prognosis, and therapeutic implications--a retrospective study of 30 patients from the rare cancer network. Am. J. Med. Sci. 2008, 336, 478–488. [CrossRef]
17. Taher, A.; Jensen, C.T.; Yedururi, S.; Surasi, D.S.; Faria, S.C.; Bathala, T.K.; Mujtaba, B.; Bhosale, P.; Wagner-Bartak, N.; Morani, A.C. Imaging of Neuroendocrine Prostatic Carcinoma. Cancers 2021, 13, 5765. [CrossRef]
18. Beltran, H.; Demichelis, F. Therapy considerations in neuroendocrine prostate cancer: What next? Endocr. Relat. Cancer 2021, 28, T67–T78. [CrossRef]
19. Annunziata, S.; Pizzuto, D.A.; Treglia, G. Diagnostic Performance of PET Imaging Using Different Radiopharmaceuticals in Prostate Cancer According to Published Meta-Analyses. Cancers 2020, 12, 2153. [CrossRef]
20. Dondi, F.; Albano, D.; Bertagna, F.; Treglia, G. Bone Scintigraphy versus PSMA-Targeted PET/CT or PET/MRI in Prostate Cancer: Lessons Learned from Recent Systematic Reviews and Meta-Analyses. Cancers 2022, 14, 4470. [CrossRef]
21. Rizzo, A.; Racca, M.; Albano, D.; Dondi, F.; Bertagna, F.; Annunziata, S.; Treglia, G. Can PSMA-Targeting Radiopharmaceuticals Be Useful for Detecting Hepatocellular Carcinoma Using Positron Emission Tomography? An Updated Systematic Review and Meta-Analysis. Pharmaceuticals 2022, 15, 1368. [CrossRef] [PubMed]
22. Dondi, F.; Albano, D.; Cerudelli, E.; Gazzilli, M.; Giubbini, R.; Treglia, G.; Bertagna, F. Radiolabelled PSMA PET/CT or PET/MRI in Hepatocellular Carcinoma (HCC): A Systematic Review. Clin. Transl. Imaging 2020, 8, 461–467. [CrossRef]
23. Albano, D.; Dondi, F.; Gazzilli, M.; Giubbini, R.; Bertagna, F. Meta-Analysis of the Diagnostic Performance of 18F-FDG-PET/CT Imaging in Native Valve Endocarditis. JACC Cardiovasc. Imaging 2021, 14, 1063–1065. [CrossRef]
24. Dondi, F.; Albano, D.; Giubbini, R.; Bertagna, F. 18F-FDG PET and PET/CT for the evaluation of gastric signet ring cell carcinoma: A systematic review. Nucl. Med. Commun. 2021, 42, 1293–1300. [CrossRef] [PubMed]
25. Shahrokhi, P.; Emami-Ardekani, A.; Karamzade-Ziarati, N. SSTR-based theranostics in neuroendocrine prostate cancer (NEPC). Clin. Transl. Imaging 2022, 11, 321–328. [CrossRef]
26. Luboldt, W.; Zöphel, K.; Wunderlich, G.; Abramyuk, A.; Luboldt, H.J.; Kotzerke, J. Visualization of somatostatin receptors in prostate cancer and its bone metastases with Ga-68-DOTATOC PET/CT. Mol. Imaging Biol. 2010, 12, 78–84. [CrossRef]
27. Whiting, P.F.; Rutjes, A.W.; Westwood, M.E.; Mallett, S.; Deeks, J.J.; Reitsma, J.B.; Leeflang, M.M.; Sterne, J.A.; Bossuyt, P.M.; QUADAS-2 Group. QUADAS-2: A revised tool for the quality assessment of diagnostic accuracy studies. Ann. Intern. Med. 2011, 155, 529–536. [CrossRef]
28. Fanti, S.; Ambrosini, V.; Tomassetti, P.; Castellucci, P.; Montini, G.; Allegri, V.; Grassetto, G.; Rubello, D.; Nanni, C.; Franchi, R. Evaluation of unusual neuroendocrine tumours by means of 68Ga-DOTA-NOC PET. Biomed. Pharmacother. 2008, 62, 667–671. [CrossRef]
29. Spratt, D.E.; Gavane, S.; Tarlinton, L.; Fareedy, S.B.; Doran, M.G.; Zelefsky, M.J.; Osborne, J.R. Utility of FDG-PET in clinical neuroendocrine prostate cancer. Prostate 2014, 74, 1153–1159. [CrossRef]
30. Savelli, G.; Muni, A.; Barbieri, R.; Valmadre, G.; Biasiotto, G.; Minari, C.; Ghimenton, C.; Pagani, R.; Pecini, E.; Falcone, M. Neuroendocrine Differentiation of Prostate Cancer Metastases Evidenced "In Vivo" by 68Ga-DOTANOC PET/CT: Two Cases. World J. Oncol. 2014, 5, 72–76. [CrossRef]
31. Savelli, G.; Muni, A.; Falchi, R.; Zaniboni, A.; Barbieri, R.; Valmadre, G.; Minari, C.; Casi, C.; Rossini, P. Somatostatin receptors over-expression in castration resistant prostate cancer detected by PET/CT: Preliminary report of in six patients. Ann. Transl. Med. 2015, 3, 145. [CrossRef] [PubMed]
32. Gofrit, O.N.; Frank, S.; Meirovitz, A.; Nechushtan, H.; Orevi, M. PET/CT With 68Ga-DOTA-TATE for Diagnosis of Neuroendocrine: Differentiation in Patients With Castrate-Resistant Prostate Cancer. Clin. Nucl. Med. 2017, 42, 1–6. [CrossRef] [PubMed]
33. Iravani, A.; Mitchell, C.; Akhurst, T.; Sandhu, S.; Hofman, M.S.; Hicks, R.J. Molecular Imaging of Neuroendocrine Differentiation of Prostate Cancer: A Case Series. Clin. Genitourin. Cancer 2021, 19, e200–e205. [CrossRef]
34. Kesch, C.; Yirga, L.; Dendl, K.; Handke, A.; Darr, C.; Krafft, U.; Radtke, J.P.; Tschirdewahn, S.; Szarvas, T.; Fazli, L.; et al. High fibroblast-activation-protein expression in castration-resistant prostate cancer supports the use of FAPI-molecular theranostics. Eur. J. Nucl. Med. Mol. Imaging 2021, 49, 385–389. [CrossRef]
35. Mattoni, S.; Farolfi, A.; Formaggio, F.; Bruno, G.; Caroli, P.; Cerci, J.J.; Eiber, M.; Fendler, W.P.; Golfieri, R.; Herrmann, K.; et al. PSMA PET for the Evaluation of Liver Metastases in Castration-Resistant Prostate Cancer Patients: A Multicenter Retrospective Study. Cancers 2022, 14, 5680. [CrossRef] [PubMed]
36. Bilen, M.A.; Akintayo, A.; Liu, Y.; Abiodun-Ojo, O.; Kucuk, O.; Carthon, B.C.; Schuster, D.M.; Parent, E.E. Prognostic Evaluation of Metastatic Castration Resistant Prostate Cancer and Neuroendocrine Prostate Cancer with [68Ga]Ga DOTATATE PET-CT. Cancers 2022, 14, 6039. [CrossRef]
37. Vargas Ahumada, J.; González Rueda, S.D.; Sinisterra Solís, F.A.; Pitalúa Cortés, Q.; Torres Agredo, L.P.; Miguel, J.R.; Scavuzzo, A.; Soldevilla-Gallardo, I.; Álvarez Avitia, M.A.; Sobrevilla, N.; et al. Multitarget Molecular Imaging in Metastatic Castration Resistant Adenocarcinoma Prostate Cancer with Therapy Induced Neuroendocrine Differentiation. Diagnostics 2022, 12, 1387. [CrossRef]
38. Schwartz, L.H.; LaTrenta, L.R.; Bonaccio, E.; Kelly, W.K.; Scher, H.I.; Panicek, D.M. Small cell and anaplastic prostate cancer: Correlation between CT findings and prostate-specific antigen level. Radiology 1998, 208, 735–738. [CrossRef]
39. He, H.Q.; Fan, S.F.; Xu, Q.; Chen, Z.J.; Li, Z. Diagnosis of prostatic neuroendocrine carcinoma: Two cases report and literature review. World J. Radiol. 2015, 7, 104–109. [CrossRef]
40. Feng, Z.Y.; Min, X.D.; Wang, L.; Li, B.S.; Ke, Z.; Zhang, P.P.; Kang, Z. MRI feature analysis of uncommon prostatic malignant tumors. Asian J. Androl. 2018, 20, 313–315. [CrossRef]
41. Bakht, M.K.; Lovnicki, J.M.; Tubman, J.; Stringer, K.F.; Chiaramonte, J.; Reynolds, M.R.; Derecichei, I.; Ferraiuolo, R.M.; Fifield, B.A.; Lubanska, D.; et al. Differential Expression of Glucose Transporters and Hexokinases in Prostate Cancer with a Neuroendocrine Gene Signature: A Mechanistic Perspective for 18F-FDG Imaging of PSMA-Suppressed Tumors. J. Nucl. Med. 2020, 61, 904–910. [CrossRef] [PubMed]
42. Bakht, M.K.; Derecichei, I.; Li, Y.; Ferraiuolo, R.M.; Dunning, M.; Oh, S.W.; Hussein, A.; Youn, H.; Stringer, K.F.; Jeong, C.W.; et al. Neuroendocrine differentiation of prostate cancer leads to PSMA suppression. Endocr. Relat. Cancer. 2018, 26, 131–146. [CrossRef] [PubMed]
43. Cohen, D.; Hazut Krauthammer, S.; Fahoum, I.; Kesler, M.; Even-Sapir, E. PET radiotracers for whole-body in vivo molecular imaging of prostatic neuroendocrine malignancies. Eur. Radiol. 2023, 33, 6502–6512. [CrossRef] [PubMed]
44. Liu, G.; Qi, C.; Shi, H. Neuroendocrine Neoplasms: Total-body PET/Computed Tomography. PET Clin. 2023, 18, 251–257. [CrossRef] [PubMed]
45. Mohamed, A.; Asa, S.L.; Lee, Z.; Tirumani, S.H.; Li, Q.; Avril, N.; Bajor, D.; Mahipal, A.; Chakrabarti, S.; Selfridge, J.E.; et al. The predictive impact of dual somatostatin receptor/fluorodeoxyglucose (FDG) positron emission tomography (PET) in metastatic gastroenteropancreatic neuroendocrine tumors (GEP-NETs): Review of literature and a single institution experience. J. Gastrointest. Oncol. 2023, 14, 1087–1094. [CrossRef]
46. Sedlack, A.J.H.; Saleh-Anaraki, K.; Kumar, S.; Ear, P.H.; Lines, K.E.; Roper, N.; Pacak, K.; Bergsland, E.; Quelle, D.E.; Howe, J.R.; et al. Preclinical Models of Neuroendocrine Neoplasia. Cancers 2022, 14, 5646. [CrossRef]
47. Olkowski, C.; Fernandes, B.; Griffiths, G.L.; Lin, F.; Choyke, P.L. Preclinical Imaging of Prostate Cancer. Semin. Nucl. Med. 2023, 53, 644–662. [CrossRef]
48. Gonzalez, P.; Debnath, S.; Chen, Y.A.; Hernandez, E.; Jha, P.; Dakanali, M.; Hsieh, J.T.; Sun, X. A Theranostic Small-Molecule Prodrug Conjugate for Neuroendocrine Prostate Cancer. Pharmaceutics 2023, 15, 481. [CrossRef]
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50. Guan, B.; Zhou, N.; Wu, C.Y.; Li, S.; Chen, Y.A.; Debnath, S.; Hofstad, M.; Ma, S.; Raj, G.V.; He, D.; et al. Validation of SV2ATargeted PET Imaging for Noninvasive Assessment of Neuroendocrine Differentiation in Prostate Cancer. Int. J. Mol. Sci. 2021, 22, 13085. [CrossRef]
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Senate Assembly Committee Updates for December 16, 2019
Senate Assembly Committees (Advisory to Executive Officers)
Academic Affairs Advisory Committee (AAAC), Chair: Kentaro Toyama
The Academic Affairs Advisory Committee (AAAC) is advisory to the Provost of the Ann Arbor campus. The committee met on November 8 and on December 11. On November 8, the committee discussed the Sexual Misconduct Umbrella Policy with Provost Philbert, Special Counsel Gerdes, AVP Burkel, and Associate Vice President and Deputy General Counsel Petrowski. Of the points that the AAAC raised, the following beliefs were expressed the most strongly: (1) that there should be oversight of the Office of Institutional Equity by a committee formed of representatives of the groups that it directly affects -- students, staff, and faculty; (2) that there should be impartial hearings conducted by trained hearing officers and with review panels populated by the accused employee's peers (e.g., staff or faculty); (3) that employees should have a formal opportunities for appeal -- of the facts, of the hearing outcome, and of sanctions; (4) that no university employees (including staff and non-tenured faculty) should experience suspension of pay or other punitive Interim Measures before a determination of guilt has been made through a procedure that accords the accused employee due process. (5) The committee would like to have more clarity about who is being referred to whenever the draft mentions "the University" as an agent that makes decisions and imposes actions. Otherwise, the committee also supported the recommendations that were being discussed by the Faculty Senate as follows:
a. Consistent timelines for students, faculty and staff
c. The opportunity to have a fair and impartial hearing with a trained hearing officer and review panel composed of trained faculty members in the case of a faculty member hearing or trained staff members in the case of a staff member hearing
b. The opportunity to participate in a mediated resolution if possible
d. The opportunity to have a neutral case manager
f. Interim decision-making authority assigned to a relevant unit administrator for both faculty and staff to suspend a member of the faculty or staff
e. The opportunity to challenge in writing Interim Measures prior to implementation
g. Review of an immediate suspension, which must be based on the determination that the faculty or staff member poses an immediate danger to the university community, within 2 working days
i. The opportunity to provide a sanctioning input statement
h. Notification of a hearing outcome at least 10 calendar days prior to implementation of sanctions
j. The opportunity to appeal findings
l. The opportunity to appeal sanctions
k. The opportunity to appeal a hearing outcome
m. Appeal reviews that are conducted by an external reviewer chosen by a predetermined faculty panel for appeals by faculty members, or by an external reviewer chosen by a predetermined panel of staff for appeals by staff members
Communications Advisory Committee (CAC), Chair: Dorene Markel
The Communications Advisory Committee (CAC) is advisory to the Vice President for Communications. The committee met on October 31, 2019. After discussing the mission of the committee, Kallie Michels, Vice President for Communications, presented a graphic outline of functions within her office, including eight distinct areas covering communications around marketing, human resources, policy and administration, as well as Michigan Radio, Michigan News, executive communications, social media, and public affairs. The committee discussed how the Office of the Vice President for Communications interacts with communicators across campus through a Communicators' Form and M-19, a marketing group of high-level communications leads. The committee touched on plans to host a 2020 presidential debate. Future topics of interest were identified including handling crisis communications, media training, FOIA training, and debate planning.
Development Advisory Committee (DAC), Chair: John Pasquale
The Development Advisory Committee (DAC) is advisory to the Vice President for Development. The committee met on October 25 and on November 14. On October 25, an overview of the structure of the Office of University Development was provided as well as assessments of 35 fundraising units. The committee reviewed a campaign assessment document and discussed the donor base, fundraising goals, collaborative projects, and donor prospect cooperation and collaboration. The committee discussed the difference between daily giving and a campaign. The committee's feedback was solicited on endowment minimums for faculty positions. During the November 14 meeting, the committee discussed in more detail endowed faculty positions, including pre-tenure endowments. Additional topics discussed included undergraduate and graduate student support. Specifically, the committee discussed faculty priorities, including what is the most valuable kind of student support. The committee also discussed how the Office of University Development can communicate effectively with faculty.
Financial Affairs Advisory Committee (FAAC), Chair: Brian Love
The Financial Affairs Advisory Committee (FAAC) is advisory to the Executive Vice President and Chief Financial Officer. The committee met on October 24, 2019. Ms. Lorraine Currie, Director of Enterprise Strategic Risk Management was a guest. Ms. Currie provided an overview of her role to help identify and assess strategic risks and put processes in place to manage them. She also gave an overview of the university's Risk Philosophy and Guiding Principles, and she distributed draft common risk language.
General Counsel's Advisory Committee (GCAC), Chair: Margaret Hannon
The General Counsel's Advisory Committee (GCAC) is advisory to the Vice President and General Counsel. This Committee met on November 5, but does not keep formal minutes due to the confidential nature of meetings. The agenda for the meeting is available on the Faculty Senate Office website.
Government Relations Advisory Committee (GRAC), Chair: Ellen Bauerle
The Government Relations Advisory Committee (GRAC) is advisory to the Vice President for Government Relations. The committee met on November 8 and on December 6. On November 8, after introductions and announcements, the committee discussed the South Fifth Avenue site. There have been ongoing conversations about how to use the South Fifth site. The potential
6052 Fleming Administration Building 503 Thompson St. Ann Arbor, MI 48109-1340
use of the site for student housing has been discussed, but no decisions have been made. Committee members mentioned the ongoing challenges of parking on North Campus and the general lack of amenities on South Campus (the former Fingerle Lumber site). Vice President Wilbanks gave an update on the State's funding for higher education for UM and for other public colleges and universities. The committee planned to discuss the budget further at the next meeting, as well as community reaction to UM hosting one of next year's presidential debates.
Information Technology Committee (ITC), Chair: Melvin McInnis
The Information Technology Committee (ITC) is advisory to the Vice President for Information Technology and Chief Information Officer. The committee met on November 6 and on December 12. On November 6, the committee discussed online voting, phishing and security, and data sharing and access. Software was discussed, such as Biorender, which is used to develop professional science figures. Chair McInnis introduced the concept of Question Zero: What exactly are we trying to accomplish? Committee members commented and themes emerged around innovative approaches for online courses, shared technology that aligns across the institution, and ensuring ready access to state-of-the-art programs and technology.
Medical Affairs Advisory Committee (MAAC), Chair: Rishindra Reddy
The Medical Affairs Advisory Committee (MAAC) is advisory to the Executive Vice President for Medical Affairs. The committee met on November 20. The committee discussed conflict of interest with an emphasis lessons learned from a significant conflict of interest situation at Memorial Sloan Kettering. Memorial Sloan Kettering's response to the findings of violations were discussed, as well as checkpoints at U-M through several existing committees such as UMMS MEDCOI Board, UM Institutional COI Committee, and UMMS Human Data and Biospecimen Release Committee. The committee discussed protecting data through Data Use and Tech Agreements, and with Fast Forward Medical Innovation review of requests to share information.
Research Policies Committee (RPC), Chair: Francine Dolins
The Research Policy Committee (RPC) is advisory to the Vice President for Research. The Committee met on October 25 and on November 22. On October 25, Jay Vornhagen, a postdoc from UM's Postdoc Association, presented to the committee about postdocs at the UM, including describing the characteristics and role of a postdoc, and concerns about pay and benefits. Dr. Vornhagen discussed a cross-sectional survey that was administered in 2018 which analyzed the population of postdocs. Dr. Vornhagen indicated that there is a desire to have a centralized postdoctoral office at UM. He encouraged committee members to advocate for a centralized office and to connect postdocs with UM administrators who postdocs can partner with in establishing a centralized office. On November 22, the committee discussed library support for research. Guests were Marisa Conten, Health Sciences Librarian, and Jake Carlson, Director of Research Data Services at the University Library.
Secretary of the University Advisory Committee (SAC), Chair: Megan Schimpf
The Secretary of the University Advisory Committee (SAC) is advisory to the Vice President and Secretary of the University. The Committee met on November 25 and continued conversations about previous items discussed, such as replacement of long time Vice President for Student Life, E. Royster Harper, the planned presidential debate in October 2020 and nationwide trends in declining enrollment in undergraduate education.
Student Relations Advisory Committee (SRAC), Chair: Gina Cervetti The Student Relations Advisory Committee (SRAC) is advisory to the Vice President for Student Life. The committee met on October 25, November 15, and December 13. During the October 25 meeting, several guests from the Ginsberg Center attended, including Mary Jo Callan, Director; Dave Waterhouse, Associate Director; and Erin Byrnes, Lead for Democratic Engagement. The committee heard a presentation about democratic engagement and student voting. The Ginsberg Center has been charged with re-shaping the landscape at UM by bringing people with different views together to have dialogue across the spectrum of social and political identities. Mary Jo Callan expressed that faculty engagement is critical to success. The committee discussed and shared ideas about encouraging civic engagement. Some thoughts that emerged during the discussion included issues around voter registration, facilitating open communication and engagement, and ways to convey information about the voting process and rights to students. Committee members were encouraged to collect data from colleagues about how they engage students around voting and civic engagement for the November meeting. During the November meeting the committee continued its work with Ginsberg Center staff regarding civic engagement, the voting challenge, and civil discourse.
Senate Assembly Committees (Other)
Building, Facilities and Infrastructure Committee (BFIC), Chair: Doug Richstone The committee met on October 28 and on December 4. On October 28, the committee discussed parking and mobility on campus. Steve Donlan, UM Director of Parking Operations, provided data in response to questions posed during the previous year. A high level overview of the data included data that faculty and staff increased by 38% from 2005 to 2018, and total gross square feet of buildings on the Ann Arbor campus increased by 35% during the same time period. It was noted that while blue parking spaces have increased by 24%, it is believed that more than half of these new spaces can be attributed to NCRC, which is distant from the congested areas of Central, Medical, and North Campuses. The committee also discussed how new buildings contribute to parking, as well as alternative options to parking on campus. It was stated that the university does not have a consistent policy to estimate future increases in faculty and staff, and the need for additional parking, when new buildings are built. There was consensus among committee members who were polled by email after the meeting that there is a problem with the availability of parking on Central, Medical, and North Campuses, and that there is a need for additional parking spaces. On Dec 4, the BFI committee met with Graham Institute Director Jennifer Haverkamp to hear about Sustainability and in particular about the President's Commission on Carbon Neutrality. Members of the committee have indicated considerable interest in sustainability last year, and the committee thought this was a good way to continue that discussion. Looking to the new year, the committee hopes to have a joint meeting with the Financial Affairs Advisory Committee.
Committee on Civil Rights and Liberties (CCRL), Chair: Barry Belmont
The Committee on Civil Rights and Liberties (CCRL) met on October 24 and on October 29. Two meetings were held to maximize participation in discussing and drafting a resolution in response to the University's drafted changes to its Student Sexual Misconduct policy, currently "Sexual Misconduct Umbrella Policy." The committee developed a Resolution urging the University to address eight items that were presented to Senate Assembly on November 18, and that will be presented again for consideration on December 16 due to the lack of a quorum
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Ann Arbor, MI 48109-1340
to vote on the Resolution in November. The committee discussed Faculty Senate rules for proposing a resolution as well as the voting process. The committee also reviewed Michigan ACLU's open letter regarding the student sexual misconduct policy and SPG 601.38 "Required Disclosure of Felony Charges and/or Felony Convictions." The committee discussed additional issues including transgender rights/protections in Michigan under consideration by the US Supreme Court, facial recognition policy, DNA collection from migrants on the border, and election support.
Committee on the Economic Status of Faculty (CESF), Chair: Martha McComas The Committee on the Economic Status of the Faculty (CESF) met on November 6 and on December 4. On November 6, the committee discussed comparing faculty economic data with peer institutions. A list of peer institutions provided by UM officials was discussed. The committee considered non-tangible items that are relevant to the economic status of faculty, such as retirement benefits, health benefits, child/elder care, and tuition assistance. The committee determined that data could be obtained through College and University Professional Association for Human Resources (CUPA-HR). Academic HR at U-M agreed to gather data. Integrated Postsecondary Education Data System (IPEDS) data obtainable through the US Department of Education will also be analyzed. On December 4, the committee looked at initial comparison data from the National Center for Education Statistics, and discussed creating a plan for the development of comparison tables and the research/writing of a report. The committee plans to invite an administrator from Academic Human Resources at UM to attend a meeting in January.
Committee for an Inclusive University (CIU), Co-Chairs: Maria do Carmo Pereira da Costa and Hitomi Tonomura
The Committee for an Inclusive University (CIU) met on October 28. The main topic of discussion was clarification of the committee's charge. Toward this goal, the committee framed the discussion around Vice Provost Rob Seller's presentation at the Community Conversation event that took place on October 16. The discussion focused on the composition of the audience at this and at other DEI events, and noted gender and possibly racial and ethnicitybased imbalance among attendees. Ideas were solicited to understand the possible causes of this imbalance, and to promote a more inclusive representation of the UM population at DEI public events. The committee discussed the structure of departments and colleges that tend to allocate DEI related responsibilities to people of color that may reduce engagement from others in events. A decentralized structure that emphasizes vertical rank-differentials among tenuretrack faculty, research-track faculty, staff, graduate students, and undergraduate students was also noted as a potential inhibitor of coordinated efforts to work toward common goals. The committee considered various concrete initiatives and measures that might promote a more balanced and inclusive representation at DEI events.
Davis, Markert, and Nickerson Academic Freedom Lecture Committee (DMNC), Co-Chairs: Michael Atzmon and Gary Krenz
The DMN Academic Freedom Lecture Committee (DMNC) finalized a slate of four panelists for the 30 th anniversary DMN Lecture, which will take place on Tuesday, October 27, 2020. The panelists include:
Nadje S. Al-Ali, Brown University
Jan Tomasz Gross, Princeton University Michael Bérubé, Pennsylvania State University Susan Benesch, Harvard University Additional Scheduled or Pending Other Committee Meetings:
Tri-Campus Committee (TCC), Chair: Caitlin Finlayson The Tri-Campus Committee (TCC) will meet on December 16.
Administration Evaluation Committee (AEC), Chair: Keith Riles Meeting Pending spring 2020
6052 Fleming Administration Building 503 Thompson St. Ann Arbor, MI 48109-1340
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United States Department of Labor Employees' Compensation Appeals Board
__________________________________________
J.S., Appellant
and
DEPARTMENT OF THE NAVY, NAVAL DISTRICT WASHINGTON SECURITY POLICE, Washington, DC, Employer
__________________________________________
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Docket No. 22-0386
Issued: October 19, 2022
Appearances:
Case Submitted on the Record
Appellant, pro se Office of Solicitor, for the Director
DECISION AND ORDER
Before:
ALEC J. KOROMILAS, Chief Judge PATRICIA H. FITZGERALD, Deputy Chief Judge JAMES D. McGINLEY, Alternate Judge
JURISDICTION
On January 5, 2022 appellant filed a timely appeal from an October 1, 2021 merit decision of the Office of Workers' Compensation Programs (OWCP). Pursuant to the Federal Employees' Compensation Act 1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case. 2
1 5 U.S.C. § 8101 et seq.
2 The Board notes that, following the October 1, 2021 decision, appellant submitted additional evidence to OWCP. However, the Board's Rules of Procedure provides: "The Board's review of a case is limited to the evidence in the case record that was before OWCP at the time of its final decision. Evidence not before OWCP will not be considered by the Board for the first time on appeal." 20 C.F.R. § 501.2(c)(1). Thus, the Board is precluded from reviewing this additional evidence for the first time on appeal. Id.
ISSUE
The issue is whether OWCP has met its burden of proof to reduce appellant's compensation, effective October 1, 2021, pursuant to § 8113(b), for failure to cooperate with vocational rehabilitation without good cause.
FACTUAL HISTORY
On August 21, 1988 appellant, then a 39-year-old police officer, filed a traumatic injury claim (Form CA-1) alleging that on that date he sustained injuries when he was involved in a motor vehicle accident while in the performance of duty. He stopped work. OWCP accepted appellant's claim for cervical sprain. It paid him wage-loss compensation on the supplemental rolls, effective October 6, 1988, and on the periodic rolls, effective February 27, 1990.
On May 14, 2020 OWCP expanded the acceptance of appellant's claim to include lumbar sprain and lumbosacral spondylosis without myelopathy.
On July 6, 2020 OWCP referred appellant, along with a statement of accepted facts (SOAF), the case record, and a series of questions to Dr. Robert Moore, a Board-certified orthopedic surgeon, for a second-opinion evaluation to determine the extent of his employment injury and work capacity. In an August 3, 2020 report, Dr. Moore indicated that he reviewed appellant's records and noted that his claim was accepted for neck strain, lumbar strain, and lumbosacral spondylolisthesis. He reported appellant's complaints of lower back pain. Upon examination of appellant's cervical spine, Dr. Moore observed full range of motion and no tenderness in the cervical region. Examination of appellant's lumbar spine revealed mild tenderness in the lumbar midline and paravertebral muscles. Straight leg raise testing was negative. Dr. Moore diagnosed lumbar degenerative disc disease, status post lumbar fusion for spondylolisthesis, and cervical strain, resolved.
In response to OWCP's questions, Dr. Moore opined that appellant's neck sprain had resolved, but that he continued to suffer residuals of his accepted lumbar strain and lumbosacral spondylolisthesis. He reported that appellant was unable to return to his date-of-injury job as a police officer, but could work with restrictions. Dr. Moore further opined that appellant could participate in vocational rehabilitation. In an August 3, 2020 work capacity evaluation (Form OWCP-5c), he indicated that appellant could work full time with restrictions of no bending/stooping, no stair climbing, and pushing, pulling, and lifting up to 12 pounds for 3 hours.
In September 2020, OWCP referred appellant to Rachel Boling, a vocational rehabilitation counselor. It noted that appellant's work restrictions should be based on Dr. Moore's August 3, 2010 report and Form OWCP-5c.
Appellant subsequently underwent vocational evaluation. In a September 28, 2020 report, Ms. Boling reported appellant's educational history and noted his employment history. She indicated that she had conducted an initial interview with appellant on September 24, 2020 and that appellant advised her that he was not capable of working due to various medical conditions, including chronic obstructive pulmonary disease (COPD), prediabetes, and hypertension.
On October 5 and 19, 2020 appellant asserted that he could not work and requested another second-opinion evaluation.
In a work and educational history form signed by appellant on October 5, 2020, he reported no employment history, job-related training, or computer skills.
On October 6, 2020 Ms. Boling completed a transferable skills analysis and forwarded her report to OWCP. She noted that appellant had an Associate Degree in Business Administration and listed Dr. Moore's work restrictions. Ms. Boling identified the positions of order clerk, Department of Labor, Dictionary of Occupational Titles (DOT) No. 249.362-026, and information clerk, DOT No. 237.367-022, as viable employment options for appellant. Both order and information clerks were considered to be in the sedentary demand level. 3 On October 26 and November 2, 2020 Ms. Boling completed labor market surveys for the positions of order clerk and information clerk. She noted that these jobs were reasonably available within a 55-mile commuting distance of appellant's residence. Ms. Boling also recommended that appellant undergo online computer training.
In a November 5, 2020 note, Ya H. Taylor, a certified nurse practitioner, indicated that appellant was "disabled due to multiple comorbidities preventing him from performing tasks required by most employment (sanding, bending, heavy lifting)." She noted that appellant was morbidly obese and had a history of spinal fusion and moderate COPD.
On January 22, 2021 Ms. Boling recommended, and OWCP approved, a rehabilitation plan for appellant to undergo free online computer courses through nonprofit organization. The plan requested 60 days of job placement services.
In a letter dated January 27, 2021, OWCP informed appellant of the rehabilitation plan developed by Ms. Boling for his return to work as an order clerk or information clerk and its determination that those jobs duties were within his medical limitations. Appellant was advised that he was expected to cooperate fully so that he may return to work in the specified job or one similar to it. He was informed that, if he failed to cooperate fully, OWCP would assume that the vocational services would have resulted in a wage-earning capacity and, therefore, may reduce his compensation pursuant to 5 U.S.C. § 8113 and 20 C.F.R. § 10.519.
In a February 2, 2021 note, Ms. Taylor reported that appellant was disabled for more than 10 years and was unable to return to work due to his comorbidities.
In a letter dated February 19, 2021, Ms. Taylor indicated that she had reviewed notes from appellant's cardiologist and pulmonologist. She explained that shortness of breath due to morbid obesity and COPD had limited appellant from being able to ambulate a short distance. Ms. Taylor reported that appellant had chronic heart failure, which required medication, and a history of spinal
3 A sedentary demand level required exerting up to 10 pounds occasionally and/or a negligible amount of force frequently to lift, carry, push, pull, or otherwise move objects. Sedentary work also involved sitting most of the time, but may involve walking or standing for brief periods of time.
fusion, which limited his physical mobility. She opined that appellant's "labored work of breathing from his COPD and his severe back pain limits him from participating in physical work."
OWCP received a letter dated March 4, 2021 signed by Dr. John R. Greene, an emergency medicine physician, which was identical to Ms. Taylor's February 19, 2021 letter.
In an email dated March 28, 2021, Ms. Boling informed OWCP of the dates that job search meetings took place with appellant. She also indicated that appellant did not apply with any of the positions provided to him, had not retaken tutorial quizzes through the nonprofit organization to achieve an eighty percent score, and did not submit independent employer contacts.
In an attending physician's report (Form CA-20) dated April 12, 2021, Dr. Greene noted the September 21, 1988 employment injury and reported specific findings of fusion of lumbar spine. He indicated that appellant was permanently disabled from work.
In a report dated April 27, 2021, Dr. Greene indicated that appellant had been permanently disabled from work for the past 20 years. He noted that appellant would be off work indefinitely.
On May 26, 2021 appellant alleged that he was still disabled and unable to work. He disagreed with the second-opinion physician and again requested a second-opinion examination.
In a rehabilitation report dated May 26, 2021, Ms. Boling indicated that appellant had reported that he was unable to do anything according to his doctor. She indicated that appellant had not applied for the job leads provided, nor worked on online tutorials, nor made any independent employer contacts.
On June 25, 2021 vocational rehabilitation services were terminated because of appellant's lack of compliance. The closure report noted that appellant was able to check his email and apply for jobs with the rehabilitation counselor's assistance, but he would not complete the tasks on his own, alleging that he was too busy attending medical appointments. It also indicated that appellant submitted only 9 of 29 assigned contacts, citing that he was busy with medical appointments. The rehabilitation counselor also determined that the position remained vocationally suitable and that such position was reasonably available in his commuting area.
In a memorandum dated July 19, 2021, the rehabilitation counselor indicated that, during the placement assistance period, appellant did not fully cooperate with the reemployment effort because he felt that he was unable to work. She noted that appellant had informed her that he could not follow up on job leads or complete computer skill refresher courses because he was busy attending to medical issues. The rehabilitation counselor reported that the positions of order clerk and information clerk remained vocationally suitable and that such positions were reasonably available in his commuting area.
In a report dated July 22, 2021, Dr. Greene indicated that appellant had low back pain for years after he sustained a low back injury at work. He noted that appellant underwent lumbar fusion surgery in 1988 and had a nerve stimulator placed in his lower back. Dr. Greene indicated that appellant complained of severe low back pain radiating down the right lower extremity. He opined that appellant was "clearly disabled from performing jobs requiring stamina in walking, bending, lifting, carrying, etc…." Dr. Greene also noted that, after 30 years of unemployment and 70 years of age, it would be unreasonable to expect appellant to enter the work force.
By notice dated August 4, 2021, OWCP proposed to reduce appellant's wage-loss compensation because he did not fully cooperate with vocational rehabilitation training. It noted that the August 3, 2020 report by Dr. Moore demonstrated that he was capable of working with restrictions and that the physical requirements of the information clerk position did not exceed these medical restrictions. OWCP provided appellant 30 days to submit additional evidence if he disagreed with the proposed reduction of compensation.
Appellant submitted additional medical reports, including eye examination reports dated August 18 through 27, 2021 and hospital records and diagnostic reports dated August 15 through 18, 2021 regarding treatment for sudden loss of vision in his right eye.
On September 20, 2021 appellant again requested a second-opinion examination and indicated that he did not want his compensation reduced.
By decision dated October 1, 2021, OWCP finalized the August 4, 2021 proposed reduction of appellant's wage-loss compensation, pursuant to 5 U.S.C. §§ 8104 and 8113(b), because he failed without good cause to undergo vocational rehabilitation as directed. It included the DOT #237.367-022 and the position description for an information clerk. OWCP indicated that the information clerk position had a sedentary strength level with restrictions of exerting up to 10 pounds of force occasionally (up to 1/3 of the time) and/or a negligible amount of force frequently (from 1/3 to 2/3 of the time) to lift, carry, push, pull, or otherwise move objects, including the human body and walking or standing for brief periods of time. It further noted that the physical requirements of the information clerk position did not exceed appellant's current work restrictions as provided by Dr. Moore on August 3, 2020 and was, therefore, medically suitable. OWCP indicated that had appellant successfully completed the approved vocational rehabilitation program, he would have been capable of securing reemployment as an information clerk, which had an entry-level wage of $423.60 per week. It applied the Shadrick formula, 4 finding that he had 51 percent wage-earning capacity. OWCP reduced appellant's wage-loss compensation, effective that day.
LEGAL PRECEDENT
Once OWCP accepts a claim, it has the burden of proof to establish that the disability has ceased or lessened before it may terminate or modify compensation benefits. 5 Section 8104(a) of FECA provides that OWCP may direct a permanently disabled employee to undergo vocational rehabilitation. 6
4 Albert C. Shadrick, 5 ECAB 376 (1953); codified at 20 C.F.R. § 10.403.
5 S.B., Docket No. 19-0781 (issued February 2, 2022); S.C., Docket No. 19-1680 (issued May 27, 2020); Betty F. Wade, 37 ECAB 556 (1986).
6 5 U.S.C. § 8104(a).
Section 8113(b) of FECA 7 provides:
"If an individual without good cause fails to apply for and undergo vocational rehabilitation when so directed under section 8104 of this title, the Secretary, on review under section 8128 of this title and after finding that in the absence of the failure the wage-earning capacity of the individual would probably have substantially increased, may reduce prospectively the monetary compensation of the individual in accordance with what would probably have been his wage-earning capacity in the absence of the failure, until the individual in good faith complies with the direction of the Secretary." 8
Section 10.519 of Title 20 of the Code of Federal Regulations details the actions OWCP will take when an employee without good cause fails or refuses to apply for, undergo, participate in, or continue to participate in a vocational rehabilitation effort when so directed. Section 10.519(a) provides, in pertinent part:
"Where a suitable job has been identified, OWCP will reduce the employee's future monetary compensation based on the amount, which would likely have been his or her wage-earning capacity had he or she undergone vocational rehabilitation. [It] will determine this amount in accordance with the job identified through the vocational rehabilitation planning process, which includes meetings with the OWCP nurse and the [employing establishment]. The reduction will remain in effect until such time as the employee acts in good faith to comply with the direction of OWCP. 9 "
OWCP's procedures state that specific instances of noncooperation include a failure to appear for the initial interview, counseling sessions or other interviews conducted by the rehabilitation counselor, vocational testing sessions, and work evaluations, lack of response or inappropriate response to directions in a testing session, as well as failure to attend an approved training program. 10
ANALYSIS
The Board finds that OWCP has met its burden of proof to reduce appellant's compensation, effective October 1, 2021, for failure to cooperate with vocational rehabilitation without good cause.
When determining whether OWCP properly reduced appellant's wage-loss compensation benefits based on his failure to participate in vocational rehabilitation, the Board must first analyze
7 Supra note 1.
8 5 U.S.C. § 8113(b).
9 20 C.F.R. § 10.519(a).
10 Federal (FECA) Procedure Manual, Part 2 -- Vocational Rehabilitation Services, Non-Cooperation and Sanction Decisions, Chapter 2.813.17 (February 2011).
whether OWCP properly determined appellant's work restrictions and ability to work. 11 OWCP initially referred appellant to vocational rehabilitation based on the August 3, 2020 report of Dr. Moore, an OWCP second opinion examiner, who conducted an examination and opined that appellant still suffered residuals of his accepted lumbar spine injury. Dr. Moore indicated that appellant could work full time with restrictions of no bending/stooping, no stair climbing, and pushing, pulling, and lifting up to 12 pounds for three hours. He also noted that appellant was able to participate in vocational rehabilitation.
As Dr. Moore's report was sufficiently rationalized and based on examination findings, the Board finds that OWCP properly determined that Dr. Moore's opinion represents the weight of the medical evidence and, accordingly, that appellant had the physical capacity to perform the duties of an information clerk. 12 The position was classified as sedentary and required no bending, stooping, or climbing and lifting, pushing, and pulling up to 10 pounds. The Board finds that the restrictions of Dr. Moore fall within these sedentary work requirements.
Based on Dr. Moore's findings, OWCP referred appellant for vocational rehabilitation. The vocational rehabilitation counselor identified the position of order clerk and information clerk as the best employment options for appellant and provided a rehabilitation plan, which OWCP approved. On March 28 and May 26, 2021 the counselor informed OWCP that appellant did not apply to any of the positions provided to him, take any of the online tutorials or tutorial quizzes, or make any independent employer contacts. OWCP's procedures state that specific instances of noncooperation include lack of response or inappropriate response to directions in a testing session, as well as failure to attend an approved training program; failure to attend classes; failure to apply appropriate effort to succeed in such classes; and failure to undergo training after a training program had been approved. 13 The Board finds that the evidence of record establishes that appellant failed to continue in vocational rehabilitation without good cause.
Appellant has alleged that he was unable to continue vocational rehabilitation and return to work because of various medical conditions. He submitted reports and a Form CA-20 dated March 4, April 12, and July 22, 2021 by Dr. Greene who noted appellant's history of a workrelated back injury. Dr. Greene indicated that appellant complained of severe low back pain radiating down the right lower extremity. He noted that appellant was permanently disabled. Although he opined that appellant was permanently disabled, Dr. Greene did not provide sufficient medical reasoning to support his opinion on disability nor did he refer to any physical examination findings or objective evidence to support his opinion. The Board has found that findings on examination are generally needed to support a physician's opinion that an employee is disabled from work. 14 Dr. Greene's reports, therefore, are insufficient to establish that appellant was unable to work a modified duty schedule. In addition, the reports by Ms. Taylor are also insufficient to establish appellant's disability from work because medical reports signed solely by a nurse
11 See F.N., Docket No. 20-0435 (issued February 26, 2021); L.C., Docket No. 12-972 (issued November 9, 2012).
12 See S.C., Docket No. 19-1680 (issued May 27, 2020); see also M.P., Docket No. 19-1364 (issued February 4, 2020).
13 Supra note 10.
14 R.C., Docket No. 17-0748 (issued July 20, 2018); Dean E. Pierce, 40 ECAB 1249 (1989).
practitioner are of no probative value. 15 As these reports were not countersigned by a qualified physician, they are of no probative value to establish appellant's claim. 16
Accordingly, the Board finds that OWCP properly determined that appellant had, without good cause, failed to continue vocational rehabilitation. 17 Pursuant to 5 U.S.C. § 8113(b) and the implementing regulations, OWCP may reduce appellant's compensation based on the amount which would likely have been his wage-earning capacity had he undergone vocational rehabilitation. The rehabilitation counselor identified the position of information clerk, DOT No. 237.367-022, with wages of $423.60 per week. This represents the amount, which would likely have been appellant's wage-earning capacity had he completed vocational rehabilitation. OWCP followed its procedures and advised him that, if he did not continue vocational rehabilitation, his compensation would be reduced. It properly applied the Shadrick formula, as codified in section 10.403 of its regulations, 18 in determining appellant's LWEC and reducing his compensation. The Board, thus, finds that appellant had, without good cause, failed to continue participation in vocational rehabilitation, and his compensation was properly reduced to reflect a wage-earning capacity as an information clerk.
CONCLUSION
The Board finds that OWCP has met its burden of proof to reduce appellant's compensation, effective October 1, 2021, for failure to cooperate with vocational rehabilitation without good cause.
15 5 U.S.C. § 8102(2) of FECA provides as follows: (2) physician includes surgeons, podiatrists, dentists, clinical psychologists, optometrists, chiropractors, and osteopathic practitioners within the scope of their practice as defined by State law. 20 C.F.R. § 10.5(t). See also Federal (FECA) Procedure Manual, Part 2 -- Claims, Causal Relationship, Chapter 2.805.3a(1) (January 2013); David P. Sawchuk, 57 ECAB 316, 320 n.11 (2006) (lay individuals such as physician assistants, nurses, and physical therapists are not competent to render a medical opinion under FECA); W.Z., Docket No. 20-0191 (issued July 31, 2020) (medical reports signed solely by nurse practitioners or physical therapists are of no probative value as such healthcare providers are not considered "physician[s]" as defined under FECA and are, therefore, not competent to provide medical opinions).
16 K.C., Docket No. 18-1330 (issued March 11, 2019); see K.W., 59 ECAB 271, 279 (2007); FECA Procedure Manual, supra note 10, Chapter 2.805.3.a(1).
17 See D.T., Docket No. 16-1590 (issued January 17, 2018); M.K., Docket No. 16-1676 (issued February 16, 2017).
18 20 C.F.R. § 10.403.
ORDER
IT IS HEREBY ORDERED THAT the October 1, 2021 decision of the Office of Workers' Compensation Programs is affirmed.
Issued: October 19, 2022
Washington, DC
9
Alec J. Koromilas, Chief Judge Employees' Compensation Appeals Board
Patricia H. Fitzgerald, Deputy Chief Judge Employees' Compensation Appeals Board
James D. McGinley, Alternate Judge Employees' Compensation Appeals Board
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An ERG initiative
An ERG initiative
Content
Introduction
In December 2018, the ERG Clean Cobalt Framework and goals for responsible production of cobalt in the DRC was released.
With this Performance Report, Metalkol RTR provides a first report on performance against the Clean Cobalt Framework as it relates to the management system and processes of the cobalt reclamation process at Metalkol RTR.
Our performance against the Framework is assured by independent auditors through their limited assurance opinion on the Performance Report.
As our operations develop, we may review and improve upon our goals in reaction to a dynamic risk environment and changing market priorities.
All statements in this performance report are based upon the policies and procedures in place as of 1 March 2019.
General status update
Metalkol RTR, in the Haut-Katanga province of the Democratic Republic of Congo (DRC), will reprocess historical cobalt and copper tailings previously deposited in the Kingamyambo Tailings Dam and Musonoi River Valley.
As of 1 March, 2019, Metalkol RTR is in the final stages of commissioning for cobalt production and expects to begin commercial production in 2019. Copper production commenced in late 2018.
Our goal is continuous improvement and to drive positive outcomes by pursuing seven Clean Cobalt goals. We apply the OECD due diligence five step guidance on human rights risks but go beyond the implementation in terms of rigor, risk management and opportunity enhancement.
1. PwC provided their independent ISAE 3000 limited assurance report on this Performance Report in respect of the activities undertaken by Metalkol RTR as of March 1st 2019 to demonstrate compliance with the ERG's Clean Cobalt Framework
The Clean Cobalt Goals
We drive positive outcomes for the DRC people, global society and the cobalt value chain by pursuing seven Clean Cobalt goals.
We do not only apply the OECD due diligence five-step framework on human rights risks, but go beyond the implementation in terms of rigour and risk management. ERG commits to continual improvement and stakeholder engagement.
* Building sustainability & responsibility into cobalt supply chains
* Initiating, supporting & participating in international initiatives
* Knowledge sharing & advocating for a more responsible cobalt industry
* Zero tolerance of child labour embedded into all policies & management systems, including contractors
* Implementing strict controls during on-boarding & access control
* Excluding ASM material from supply chain
TRACEABLE
COBALT
NOT SOURCED
FROM ASM
SOURCED
WITHOUT
CHILD LABOUR
RESTORING THE
ENVIRONMENT
COLLABORATING
FOR SUSTAINABLE
DEVELOPMENT
SECTOR
LEADERSHIP
METALKOL
Clean
Cobalt
Framework
• Applying chain of custody procedures across origination, processing & transportation
• Implementing controls/ IT system with automatic checks & alerts
• We mine fine materials from reclaimed legacy tailings
• Screening & reconciling material through rigorous processes in closed loop facility
• ASM policy, procedures & management system
• Supporting regional community development with NGO partnerships & multi-stakeholder initiatives
• Prioritising stakeholder relationships & collaborating with communities through participatory approaches
• Decontaminating Musonoi River & Kingyambo Dam legacy sites
• Increasing viable land & water resources for agriculture/ aquaculture
• Improving biodiversity & sustainable waste management systems
1. PwC provided their independent ISAE 3000 limited assurance report on this Performance Report in respect of the activities undertaken by Metalkol RTR as of March 1st 2019 to demonstrate compliance with goals 1-6 of the ERG's Clean Cobalt Framework
Goal 1
Compliance with the OECD Due Diligence Guidance
COMPLIANCE STATEMENT
As of 1 March 2019, Metalkol RTR has established and implemented management systems and procedures to align with the Clean Cobalt Framework and to conform with the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas (OECD Due Diligence Guidance).
SYSTEMS FOR MANAGING OPERATIONAL RISKS
1A
WE HAVE ESTABLISHED STRONG COMPANY MANAGEMENT SYSTEMS
The Clean Cobalt Framework describes our commitment and approach for achieving sustainability, conducting our business responsibly, and respecting human rights in our operations and supply chain.
Compliance with the OECD Due Diligence Guidance is a commitment in the Clean Cobalt Framework, and as such has been translated into our management systems and policies, in particular the Metalkol Human Rights Statement of Commitment. The Clean Cobalt Framework and the Metalkol Human Rights Statement of Commitment summarises our salient risks and sets out the governance structure for our human rights due diligence practices. The Metalkol Human Rights Statement of Commitment ensures our alignment with ERG's Group Level Human Rights Policy, which has been approved by the ERG Board. It lays out our commitment to respecting human rights and describes our approach for achieving this. It applies to all our operations and employees. All of these documents are available on the ERG website.
At Metalkol RTR, the General Manager is responsible for overall governance and for managing human rights risks. A Human Rights Working Group is responsible for approving and over-seeing the implementation of the Clean Cobalt Framework and Human Rights Statement of Commitment. The Human Rights Working Group is chaired by the General Manager and comprises representatives from senior management including Compliance and Legal; Processing; Community and Responsible Mineral Development; Human Capital; Environment, Health & Safety; Security; Procurement and Supply Chain; Government Relations and Communications. The Human Rights Working Group meets on a regular basis.
Metalkol RTR has established management systems and policies across its business areas to support human rights due diligence practices and to ensure that responsibility lies at the management level. These include the ERG Group Code of Conduct and key policies in areas including anti-bribery and corruption, anti-money laundering, health and safety, management of social and environmental impacts, management of incidents and grievances, as well as a chain of custody procedure, which allows traceability of our product from the point of extraction.
We have commenced roll out of these policies and commitments to staff and contractors through induction training, posters in high traffic areas and articles on electronic notice boards. All new employees and contractors will undergo our induction training. Additional human rights training is provided to targeted employees and general refresher trainings will be conducted on a yearly basis.
Procedures of human rights and public and private security are in place. Our guiding principles to human rights and security are documented and communicated in the 12 Golden Rules for Security.
An ERG initiative
Goal 1 Compliance with the OECD Due Diligence Guidance
1B
WE IDENTIFY AND ASSESS OUR RISKS AND IMPACTS
Metalkol RTR has established a Human Rights Risk Assessment that allows us to identify and assess the human rights risks and impacts of our operations. Each identified risk is assessed based on its likelihood and impact, and categorised as salient or nonsalient. The saliency of risks is determined through a scoring system on the basis of scale/seriousness of the impact, scope, irremediability, and probability.
The Human Rights Working Group is responsible for overseeing this process. Updates to the Human Rights Risk Assessment are conducted by each department and reviewed at each Human Rights Working Group meeting, including any changes to the risk profiles, new risks and the progress of mitigation measures. The Metalkol RTR management meeting, chaired by the General Manager, is held weekly and includes a standing agenda item for any time critical items to be raised and reviewed. The areas identified as salient are set out in the Metalkol RTR Human Rights Statement of Commitment.
In addition to the human rights risk assessment, an Environmental and Social Impact Assessment (ESIA) was conducted and approved by the DRC government in 2018. A gap analysis audit was performed in 2017 against IFC Performance Standards to align the submitted ESIA to international standards. The ESIA forms the basis of management plans for the identified environmental and social impacts.
Health and safety is a top priority at Metalkol RTR and a Sustainable Health and Safety system has been implemented for risks and impacts for employees, suppliers and surrounding communities. An External Traffic Management Plan manages the transportation of product and of hazardous goods. Controls will include road risk survey and assessments, awareness training and supplier audits.
Our risk identification and assessment process integrates stakeholder engagement. We have established internal and external grievance and whistleblowing mechanisms to enable continuous identification of risks and provide various channels where grievances can be voiced by employees, contractors and community stakeholders. Grievances can be voiced through letters, complaint forms, community meetings, union representatives, community boards, our website and a separate dedicated email inbox managed by Metalkol, as well as the ERG Hotline (including email, web-intake and phone), which is 100% confidential and is manned 24 hours a day, seven days a week by an independent company. Grievances are managed according to our Grievance Management Procedure and recorded in our grievance registry.
In order to promote awareness of our human rights policy, whistleblowing hotline and grievance mechanisms, we have developed a communication plan to proactively communicate with our staff, contractors, suppliers and community stakeholders. As of 1 March 2019, this includes the initiation of employee, supplier, contractor and community meetings, prominently displayed posters in all relevant languages and distribution of copies of relevant documents to employees, suppliers and contractors.
Identification and assessment of risks specifically related to sourcing and transportation of our product and chain of custody are in accordance with the Chain of Custody Procedure.
Goal 1 Compliance with the OECD Due Diligence Guidance
1C
WE MANAGE OUR RISKS AND IMPACTS
1D
WE SUPPORT CUSTOMER AUDITS AND INDEPENDENTLY ASSURE OUR REPORTING
1E
WE PUBLICLY REPORT ON OUR PROGRESS IN FULFILLING THE CLEAN COBALT COMMITMENTS
For each identified and assessed human rights risk, Metalkol RTR has developed a mitigation plan with corresponding responsibilities, timelines and milestones. The mitigation plans are developed, overseen and implemented by the relevant company departments. The departments report their progress at the Human Rights Working Group meetings, which tracks the implementation of the mitigation plans. To mitigate and monitor the environmental and social impacts identified in the ESIA, specific management plans have been developed.
Obligations from the ESIA are documented in a web-based database system, Isometrix. All safety, health, environment and community data will be transitioned to the Isometrix system throughout 2019 and allow us to track our performance in mitigating these risks and impacts.
A gap analysis for ISO 14001 and ISO 45001 certification (international standards for environmental management systems and health and safety management systems) will be conducted in 2019 with certification to follow.
Metalkol RTR allows customers to conduct due diligence and audits on its operations through a provision included in customer contracts. We support these exercises by completing customer questionnaires and allowing customer and auditor access to our sites, documentation and by facilitating contact with our staff and stakeholders.
PwC Bedrijfsrevisoren bcvba/PwC Reviseurs d'Entreprises sccrl ("PwC") provided their independent ISAE 3000 limited assurance report on this Performance Report in respect of the activities undertaken by Metalkol RTR on March 1st 2019 to demonstrate compliance with the Clean Cobalt Framework. We will publish on our website, a statement that outlines how we have received independent third party validation on goal 1 to 6 from PwC on compliance with the Clean Cobalt Framework.
This Performance Report is Metalkol RTR's update as of 1 March 2019 to demonstrate that management systems and procedures have been designed to enable Metalkol RTR to be in compliance with the Clean Cobalt Framework. The report is issued as a stand-alone report. The Clean Cobalt Framework, ERG Human Rights Policy and Metalkol Statement of Commitment are also publicly available.
In addition, we will publish on our website, a statement that outlines how we have received independent third party validation on goal 1 to 6 from PwC on the compliance with the Clean Cobalt Framework. Customers will receive the Clean Cobalt Framework, this Performance Report and the ISAE 3000 limited assurance report as a documentation package with their contract.
Goal 1 Compliance with the OECD Due Diligence Guidance
SYSTEMS FOR MANAGING SUPPLIER RISK
As of 1 March 2019, Metalkol RTR has adopted and implemented a Supplier Code of Conduct, which guides our approach to conducting business with suppliers or contractors.
Our suppliers and contractors are contractually obliged to adhere to the Supplier Code of Conduct and to the ERG Human Rights Policy and other key policies including Anti-bribery and Corruption, Anti-Money Laundering, Agents Compliance, Competition Compliance and International Economic Sanctions. The Supplier Code of Conduct communicates our expectations for existing and potential suppliers and contractors regarding the management of risks related to health, safety and environment, integrity, fair employment practices, human rights, supply of ore and mineral products, confidentiality and data protection. It is distributed as part of our suppliers package.
We monitor our suppliers for adherence with the Code of Conduct by sending out an extended questionnaire to all business partners every two years and by checking on any allegations of human rights violations in relation to our suppliers. We require business partners to record all relevant documentation, which they must share with us upon request. For suppliers and contractors that are found to be non-compliant with our Supplier Code of Conduct, we will review the circumstances of the non-compliance with the supplier and work with them to address and remediate risk. If risks cannot be mediated, we will terminate the business relationship.
Selected suppliers have been trained by Metalkol RTR or Group Compliance on Metalkol RTR's policies and procedures, such as the Human Rights Policy through face to face sessions. Further training in relation to the Supplier Code of Conduct is scheduled together with supplier audits for 2019.
For new business relationships, Metalkol RTR applies a risk assessment on two levels:
1. Risk assessment of the nature of the product or service; and
2. Counterparty Due Diligence of the supplier or contractor itself.
The Counter Party Due Diligence (CPDD) process vets new suppliers and other business partners from a threshold of 25,000 USD annual contract value. The purpose of the CPDD is to prevent risks of cooperation with persons or entities that are involved in bribery and corruption, money laundering, financing of terrorism and other crimes, or are subject to inter-national sanctions. The CPDD also includes questions on environment, health and safety and human rights. The CPDD process is conducted by our Compliance Department. The combination of both risk assessments result in a risk score for a business partner, which influences our decision to enter into a business relationship with counter-parties. Counterparties can be accepted, accepted with additional terms and conditions to address identified risk, or rejected.
Where we identify a supplier as high risk, we follow up to ensure clarity and provide advice and support as needed such as mitigation measures. Our contracts with suppliers and contractors include a right to audit clause.
Goal 2 Cobalt is sourced without child labour
COMPLIANCE STATEMENT
As of 1 March 2019, Metalkol RTR has established processes and controls to prevent child labour in its operations. These processes and controls furthermore aim to ensure we abide by DRC Labour Legislation on employment ages and comply with ILO Conventions on Child Labour.
PERFORMANCE STATEMENTS
Metalkol RTR has established processes and controls that make sure all of our workforce (including contractors) are above 18 years old and have a valid labour contract. Our policies, including our Recruitment and Selection Policy, do not permit employees or workers of our contractors to be below 18 years of age. An age-check is performed during the on-boarding process, when staff members or staff of contractors are issued a site-pass. We, or our contractors, keep a record of all IDs and proof of age. The Labour Inspector of the DRC government may verify compliance with DRC Labour Regulation during their site inspections of which there has been one as of 1 March 2019.
An Access Control Procedure is in place. Every person within our operational area must be admitted through access control. Two levels of control are applied to access the site:
1. Possession of a site pass
2. Identity check through photograph and fingerprints, which are checked against records of all authorised permanent and temporary workers to make sure there is no passswapping.
Entry into an operational area is not possible without passing the access control. Security personnel are trained on our zero tolerance of child labour and keep patrol schedules and logs.
Any visitors are issued passes only upon receipt and verification of identification documents.
Our standard contract requires all our contractors to abide by DRC labour law and stipulates a right for Metalkol RTR to audit contractors. Our Supplier Code of Conduct references child labour and requires contractors to have in place procedures to verify the age of employees. In addition, we proactively communicate and mitigate the risk of child labour through the promotion of our Human Rights policy, whistleblowing hotline, and grievance mechanism.
We manage the risk of child labour also through our ASM Management Plan nd Chain of Custody Procedure, ensuring that our product only comes from our operations.
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Goal 3 Traceable Cobalt
COMPLIANCE STATEMENT
As of 1 March 2019, Metalkol RTR is establishing the processes and controls for the implementation of a chain of custody from the point of extraction up to point of sale to a customer.
PERFORMANCE STATEMENTS
Metalkol RTR has established a Chain of Custody Procedure and is developing related systems that make sure that our cobalt product is traceable only to our operations. The Procedure outlines the chain of custody management system and related roles and responsibilities of various departments. It includes provisions for material segregation, bagging and tagging, transportation, warehousing, data management, sign off and approvals, incident management, training and communication, and third-party audits. The procedure enables our material to be traced back to the date, shift, and point of extraction, and allows for verification of the flow and handling of cobalt, including all stages of transformation, physical transfer and storage.
Our Chain of Custody Management System will consist of three major stages: origination, processing and transport.
At the first stage of our product chain, between the extraction point and our plant, we have implemented the following physical controls: we have fenced pumping stations, initiated a fencing plan (at Kingamyambo tailings) and have systems in place to secure the extraction area that is not fenced (dredging of the Musonoi river). Permanent security guards are placed around these points, and security patrols are conducted from the extraction points along the pipelines to the plant. The extracted tailings are fed from these secured areas into a closed and secured pipeline system which brings the extracted material to our processing plant.
At the second stage of our product chain, material enters from the pipeline into our secured processing plant and production line. The plant area is fenced and security surveillance and patrols are in place. Within the plant, processes are closely monitored: we take manual assay samples at the extraction points and automatic assay samples within the plant at every stage of the production process in order to cross-check whether the material's consistency differs from that of the extraction point.
At the end of processing, our product is bagged, data recorded, assayed and, once in commercial production, will be secured with tamper-resistant tags including GPS tracking devices. Every bag is marked with a unique identification number, a lot number, its weight and shift of bagging. The bagged and tagged product will be loaded to trucks in lots.
In the third stage, which will be operationalised upon commercial production, the bags will be monitored and tracked from the on-site export area to the customer, by applying weight controls, visual inspections, GPS tracking of trucks and accompaniment by security personnel.
To enhance and further automate data management, Metalkol RTR is developing and will apply a digital data management system, which keeps a record with key data on who handled the product in what form, in which location and when, supported by evidence and verified through checks and balances. The IT system will conduct automatic checks of evidence and inconsistencies and alerts. As of 1 March 2019, this is in proof of concept phase.
A pilot blockchain project has been initiated at Metalkol RTR with IBM to explore traceability enhancements.
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An ERG initiative
Goal 4 Cobalt is not sourced from artisanal and small scale mining
COMPLIANCE STATEMENT
As of 1 March 2019, Metalkol RTR has established processes and controls to monitor, assess and mitigate risks associated with artisanal and small-scale mining (ASM). Metalkol RTR does not purchase ASM material.
PERFORMANCE STATEMENTS
Metalkol RTR has established an ASM policy and ASM Management Plan outlining the approach to managing ASM activities on and around its concession. We implement ASM standard operating procedures and tools setting out prevention, mitigation and remediation actions to address ASM-related risks. A management structure has been implemented in the form of a cross-departmental Joint ASM Working Group. The Joint ASM Working Group meets weekly and is responsible for reviewing ASM-related information, risks and incidents, assessing and classifying these, and devising recommendations for remediation or mitigation measures.
Metalkol RTR has established an ASM Monitoring and Reporting Procedure, for the recording of ASM developments on and around Metalkol RTR's concession, including an ASM incident reporting procedure and grievance system. ASM-related information, risks and incidences are documented and managed by an ASM specialist in the Community and Responsible Mineral Development Department and reviewed by the ASM Joint Working Group.
The ASM Management Plan devises a differentiated management approach depending on the type of ASM activity and its location. Inside Metalkol RTR's operational areas, Metalkol RTR allows no trespassing and follows a zero-tolerance approach to ASM. All security staff have been trained to follow security standards based on the Voluntary Principles on Security and Human Rights. A Voluntary Principles Train the Trainer programme was developed by international NGO, Pact, for the security department. The Security Department has permanent security posts around Metalkol RTR's concession and conducts regular patrolling. Security procedures are defined to perform controls per sub-station and restricted areas. The Security Department has a fencing plan that informs security personnel about high risk areas that are not fenced.
Outside the secured areas, but still on Metalkol RTR's concession, we allow for public access and ASM washing activities, as long as they do not interfere with Metalkol RTR's operations. However, ASM mining and digging operations in these areas are not authorised by Metalkol RTR. Metalkol RTR will report new mining and digging operations on the concession that are not able to be resolved by Metalkol community relations or security to the holder of the subsurface rights. Material mined from ASM and unknown sources on the concession is kept separate from Metalkol RTR's processing in a secured container and will be returned to the legal owner of the subsurface rights. Outside the concession, Metalkol RTR monitors ASM activities in the close surroundings.
Metalkol does not source or buy material from any other source including ASM. Our Chain of Custody Procedure ensures that our product only originates from our operations and remains in a closed loop from extraction to processing. Our processing plant can only process tailings material, not ore; any other material is discarded. The tailings pump stations at Kingamyambo and Musonoi are fenced and with a 24 hour security patrol. The processing plant is located in a restricted access area.
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Goal 5 Restoring the environment
COMPLIANCE STATEMENT
As of 1 March 2019, Metalkol RTR has begun reclaiming legacy tailings from the historical Kingamyambo tailings dam and initiated testing in the Musonoi River basin. We are implementing an environmental management system that is compliant to ISO14001 Standards.
PERFORMANCE STATEMENTS
In September 2018, Metalkol RTR began the extraction and re-processing of historical, non Metalkol, tailings which are contaminating the natural environment of the Kingamyambo tailings dam. We are constructing a new permitted tailings storage facility to consolidate our own residual waste and controlled through a Tailings Management System of inspection, monitoring and reporting. As of 1 March 2019, we removed 3,118 tonnes of contaminated material from the Musonoi river and 1,415,947 tonnes from Kingamyambo tailings. The water used on our site is in a closed-loop system, and no process water is discharged from our site. A monitoring programme and stations have been set up for surface water, ground water, noise, GHG emissions and air quality as per statutory requirements and the approved ESIA.
Proper non-tailings waste management implementation and coordination of Metalkol RTR's approved waste landfill site is in place. Waste is separated into streams, disposed into demarcated waste trenches, compacted and covered with a layer of soil. A water monitoring program is in place to identify leachate from the landfill site.
To start to prepare for rehabilitation, we are collaborating with the DRC university in the development of a nursery to identify species tolerant to tailings "pollution" as described in the ESIA, which will assist with the rehabilitation process and development of a biodiversity monitoring programme. A Top Soil Management Plan is in place to enable future rehabilitation. A rehabilitation plan is to be developed based on these outcomes. We have a land clearance procedure in place, to manage unnecessary clearing of land.
An Environmental Impact Assessment was approved by DRC authorities in 2018 and an Environmental Management System established. This included environmental management procedures and management plans for environmental aspects including soils, land use and land quality, climate and air quality, greenhouse gas impacts, noise and vibration, surface water and groundwater and terrestrial ecology.
The Metalkol Environmental Department is responsible for monitoring the environmental performance. Monthly reports are provided to the Metalkol General Manager and bi-monthly to the DRC government by means of the Safety and Health Committee Meeting and annually in the Sustainability Report.
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An ERG initiative
Goal 6 Collaborating to promote sustainable development
COMPLIANCE STATEMENT
As of 1 March 2019, Metalkol RTR has created the processes and controls that ensure engagement and collaboration with stakeholders and local communities. Through these, Metalkol RTR mitigates social impacts and contributes to community development
PERFORMANCE STATEMENTS
Metalkol RTR has established and is implementing a Social Management System including procedures and plans for stakeholder engagement, sustainable socio-economic development, social risk and impacts, community health, safety and security, influx management, ASM management, land compensation, involuntary resettlement and livelihoods restoration and grievance management.
The Stakeholder Engagement Procedure and Plan structures our engagement with local communities and provides the basis for Metalkol RTR's community relations approach and priorities. The Procedure defines the purpose, scope, requirements and roles and responsibilities for our engagement with key stake-holders. Through this procedure, we have identified and mapped relevant stakeholders, which include 9 communities with a population of approximately 100,000 – 150,000 people. Metalkol RTR's engagement with these communities is structured in a Community Engagement Calendar that outlines which stakeholder we are engaging, on which scope, when, and through which engagement methods.
Metalkol RTR has adopted a Strategic Community Investment Plan, which defines our process for social investment. Within our stakeholder communities, this is structured through a participatory rural appraisal process, in order to define needs and priorities for community development. As of 1 March 2019, we have conducted 9 Participatory Rural Appraisals covering the Project Affected Population. A priority across com-munities was identified as access to clean water and Metalkol has installed solar powered water stations in 7 of the 9 communities to date. In addition, we have invested in local employment and as of March 1st more than 90% of our workforce are DRC nationals and we promote short term employment in our immediate villages.
A Grievance Mechanism Procedure for communities has been rolled out in all communities whereby community members can raise concerns to Metalkol RTR.
Metalkol RTR partners with civil society organisations and NGOs to promote sustainable development. With the Good Shepherd Sisters, we started a 3 year agreement in 2017 to support their activities on child protection, women's empowerment, alternative livelihoods and capacity building. As of 1 March 2019, a new child protection centre facilities in construction and due to open in mid-2019. In February 2019, we entered into a partnership with international NGO Pact to implement the Children out of mining programme in Northern Kolwezi focused on awareness raining, positive parenting and apprenticeships for child miners.
In January 2019, Metalkol RTR resettled 16 households from Samukonga village to a new codesigned village with solar powered services, and is implementing a Livelihood Restoration Programme.
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Goal 7
Leading our industry towards more sustainable cobalt value chains
COMPLIANCE STATEMENT
As of 1 March 2019, Metalkol RTR supported and participated in industry and value chain initiatives.
PERFORMANCE STATEMENTS
ERG is a founding member, partner and core funder of the Global Battery Alliance, a multistakeholder initiative hosted by the World Economic Forum, aimed at ensuring the global battery value chain is socially responsible, environmentally and economically sustainable and innovative. Since 2017, the CEO of ERG has been a co-chair of the Global Battery Alliance. ERG participates in the Steering Council, Executive Board and Cobalt Working Group.
Metalkol RTR is a member of the Cobalt Institute and its Responsible Sourcing Task Group. Metalkol has adopted the Cobalt Institute Responsible Assessment Framework (CIRAF) and was an active member in its development. CIRAF seeks to make ethical and sustainable risk assessment and mitigation of cobalt production more standardized whilst aligning with the OECD Due Diligence Guidance.
Through the Clean Cobalt Framework, Global Battery Alliance, Cobalt Institute and independence assurance of our performance report, Metalkol RTR goes beyond current guidance and practices and leads the industry towards more sustainable cobalt value chains.
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Management conclusion
As of 1 March 2019, Metalkol RTR implemented process and controls for its cobalt production in line with the principles and commitments stated in the Metalkol RTR Clean Cobalt Framework and in accordance with the OECD Due Diligence Guidance for Responsible Supply Chains of Minerals from Conflict-Affected and High-Risk Areas.
Metalkol RTR has developed processes and controls to implement a chain of custody, allowing our product to be tracked and its handling verified from the point of extraction up to our on-site warehouse. In addition, Metalkol RTR has implemented processes and controls to prevent and mitigate the risk of child labour in our operations, as well as risks around ASM.
Metalkol RTR has managed social and environmental impacts, has contributed to community development and has supported industry initiatives on an international level.
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Report Workshop 1 Session 2
"EYCE 2005: National Experiences – European Challenges"
Berlin, Friday, December 02, 2005. 02.30 p.m.
Country Profiles
Belgium: Wim Taelman, Flemish Organisation for Human Rights Education
Italy: Valentina Cinti, Association School Instrument of Peace (EIP)
Finland: Jorma Turunen, Workers Educational Association
Turkey: Esat Sagcan, Director of Adult Education Unit, Ministry of Education
Chair: Anne-Marie Eeckhout, Human Rights Education Associates (HREA), The Netherlands
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WORKSHOP 2: THE MOST IMPORTANT RESULTS
In the above-mentioned countries, it is clear that more or less the EDC carries out the reform of European Year. But there are still more problems than solutions to them.
We have been facing some of the problems for a very long time.
One of the participants of the Workshop decisively defined primary and basic problem that "the EDC is not sexy". The interest for the EDC among the most important target group / youth should be roused and that it is not such a simple task.
Some of the problems were related to the translation of the most important items. For example in Germany, the term "politische Bildung" is in use. Literally, translation of the expression will not have the same meaning in some other languages, as it does in German language. Even in English language two expressions are contrasted to each other «civic education and the EDC".
It causes following difficulty, that was discussed in our work group, because of what no one is able to define the real distinction between following expressions: EDC, HRE, ESD, Global Education, Intercultural Education, Peace Education, etc.
Unfortunately, "European Year" could not be used for integration of these expressions. Thus, the integration of these expressions is necessary with the aim to achieve as effective and efficient work as possibly.
Of course, it would be great-and we also talked about- if the projects of different organizations could be better coordinated, information better exchanged then the results of the real work would be achieved better. Related to above mention, it was disastrous to hear the presentation of Belgium representative who informed participants that in his country there were three systems of education. In this context, what does coordination mean at the European level?
Other problems mentioned are insufficient financial sources, which have been setaside for the EDC and problems with the media, which do not pay enough attention to this subject. "Civic education" as it was said "is not sexy".
Reporter:
Haris Muhić, D@dalos, Bosnia and Herzegovina
Sarajevo 12.12.2005.
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Presentation Country Profile - Belgium:
Wim Taelman, Flemish Organisation for Human Rights Education (VORMEN)
EDC IN THE FLEMISH COMMUNITY
a) EDC IN THE FORMAL EDUCATION SYSTEM
The curriculum of the cross-curricular theme 'Educating for citizenship' for the Flemish secondary education, introduced gradually in the Flemish education system since the late 90's, defines citizenship as "being open to the political, economic, social and cultural life of the society of which one forms a part and being willing to participate in it. Citizenship therefore assumes insight into the four aspects above, as well as into the basic rules which form the basis of our legal order and of our democratic system. One important element of citizenship is contained in human rights and liberties, as laid down in the constitution and in various charters. Citizenship assumes:
a) Awareness of belonging to a community of citizens with rights and obligations including the ensuing responsibilities and tasks;
b) Readiness to honour those rights and to comply with those obligations;
c) Initiative to bear responsibility;
d) Readiness to acquire attitudes such as tolerance, sense of justice, an eye for general wellbeing, willingness to cooperate and sense of responsibility."
Flemish schools have an obligation of effort towards this cross-curricular curriculum, not an obligation of results as they have towards the more classical subjects.
Besides the curriculum EDC is embedded in other policy areas as well. A decree on participation establishes pupils' participation in schools. A decree on equal opportunities in education puts in places regulations and structures on various aspects thereof.
For the support of the citizenship curriculum a series of measures have been taken. Some books and brochures with information and suggestions on the curriculum have been published and distributed. The school networks have their pedagogical advisors who provide schools and teachers with training and advice for free. Priority themes for in service teacher training temporarily allowed institutions and NGO's providing in service teacher training for free. Some NGO's providing support (educational materials or in service teacher training) for the education system get financial and/or personnel support for projects they submitted. The official' magazine for teachers provides information and support; the same applies for pupils and for parents. On themes (such as 'school and democracy' and 'global education') schools can get financial support when setting up projects. In the implementation of citizenship education a range of difficulties occur. There are the increasing expectations and demands from society towards the education system and its schools. In connection with this, a lack of time/resources for the teacher(s) to devote to this aspect, as well as a lack of time in the classroom seem to play a significant role. Another challenge is the perception, still, by many teachers of their task and of the school's mission as rather subject-oriented. Also a lack of expertise and experience needed for the implementation of EDC is felt by quite some teachers.
b ) EDC IN YOUTH WORK
In youth work no formal policy on citizenship education has been established in Flanders, though policy on youth and youth work encompasses aspects which are of relevance to EDC: integration of children's rights in all policy areas, an effective and open information policy, attention to diversity and interculturality, youth participation…
Besides this initiatives and campaigns on citizenship issues are initiated by youth NGO, such as the actual campaign "VerdraaiDe Wereld" ("Turn The Globe"??).
c ) EDC IN INFORMAL ADULT EDUCATION
Also in informal adult education there is no formal policy in place, but some impulses are given to EDC in its context. There is a funding system which allows institutes for specialised adult education working on citizenship issues to be funded, which also applies to socio-cultural movements dealing with issues that can be considered as citizenship issues.
d ) OBSERVATIONS AND COMMENTS
Though by many observers citizenship education is seen as an important element in all educational contexts, no coherent and concerted efforts are made towards implementing it in a more systematic way. This also applies to human rights education. As a result of the fragmentized funding system (separate funding systems for formal education, youth work, informal adult education, work with special target groups,…) and of the lack of an initiative from the government until now no strong support structure or expert centre for citizenship education (or for human rights education or, ideally, covering both educational fields) has been established. The establishment of such a support structure would add substantially to more vibrant EDC practices in all educational sectors.
There is a need for a platform where all Flemish ngo's, institutions and initiatives carrying out support for EDC regularly meet, in order to avoid overlap, to create synergies and develop common projects. Such a platform should be cross-sectoral.
EDC is not on itself a 'sexy' subject or theme in educational settings. Spontaneous interest for EDC is not obvious. In order to be attractive for learners EDC needs to be approached with attractive methods or be embedded in projects, approaches or themes which attract interest or are of more direct relevance for the learners. Schools and educational institutes and organisations are approached by an overwhelming diversity of themes and 'educations' (peace education, human rights education, intercultural education, education for sustainable development, global education,…). There is a need for integrated approaches of all these themes.
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Presentation Country Profile - Turkey
Esat Sagcan, Director of Adult Education Unit, Ministry of Education
EUROPEAN CITIZENSHIP EDUCATION AT PUBLIC TRAINING CENTRES
General Directorate of Apprenticeship and Non-formal Education deals with organizing all the activities regarding the training of journeyman and masters through apprenticeship training, authorizing adult education providers; private/ formal institutions or NGO's; monitoring and supervising their activities.
Some other institutions under Ministry of National Education which is responsible for organizing formal educational activities are also authorized to organize adult education activities.
As it is clearly understood, systematic and planned educational activities called "Continuous Education", "Adult Education", "Public Training", "Mass Education", "Lifelong Learning" etc. out of formal education have been implemented as "Nonformal Education" in Turkey. Therefore, adult education is seen and applied as a sub-system of Non-formal Education.
In Turkey, there are total 923 public training centres of which equipment, lighting, water expenditures and the wages of the full-time/half-time staff are paid by the government. The centres have such an organisation to provide adult education for free to some 40.000 settlement units.
Activities such as courses, seminars, meetings, exhibitions, symposiums, panels, etc. are available in the centres for free all day.
The following programs at these centres are implemented; literacy courses, vocational training, Social and cultural courses, Social and cultural activities.
The subjects of the courses might vary according to the needs. At the moment there are courses on 350 subjects.
The courses are opened on requisition of 15 or less learners according to the characteristics of the programme, environmental conditions etc. For disabled individuals, street children, working children, prisoners and detainees, drug addicts under treatment the limitation can be below 10. Likewise, for literacy courses and the traditional arts which tend to be forgotten there is no limitation in number.
Some 1.600.000 individuals benefit from the courses. Around 5.000.000 citizens benefit from the meetings, seminars, lectures, panels, festivals, contests, exhibitions etc a year.
CIVIC EDUCATION AT FORMAL EDUCATION INSTITUTIONS
In order to improve people to be decent, qualified, open minded, actively participating individuals, civic education have been provided to some 18.000.000 students at formal education institutions within the curriculum of Social Sciences, Turkish Language, Maths and Science courses although there isn't a separate course with this title.
2005, YEAR OF EUROPEAN CITIZENSHIP THROUGH EDUCATION
Within the framework of the project "2005, Year of European Citizenship through Education", which is being carried out by our Ministry, the following seminars were hold:
* Seminar on Human Rights and Democracy Education which was held between 22-26.07 2005 with the participation of 81 teachers.
* Seminar on Human Rights and Democracy Education held in collaboration with our Ministry and the British Council.
* Seminar on Education of Children's Rights held between 28.08– 02.09 2005.
CIVIC EDUCATION AND ITS SUBJECTS
* As to the adults who are out of formal education, citizenship education is provided either at public training centres as separate courses, or within the curriculum of other vocational and literacy courses. It is also provided at seminars, meetings, lectures, discussions, panels, symposiums and other similar educational occasions.
* The curriculum of Citizenship Education at public training centres includes basic terms such as society, state, public, law, democracy, civil society, collective living, individual rights, agreements, social security, tax, legacy, international laws, adjudication, trade unions, work life and so on.
EU CITIZENSHIP EDUCATION
By EU process initiated in 1963 aiming at Turkey's full membership to EU, primarily the education provided to our citizens by full time or part time teachers or instructors has been revised recently so as to provide EU citizenship education.
CIVIC EDUCATION AT FORMAL EDUCATION INSTITUTIONS
1-10 articles of EU constitution consider all the citizens of member countries to be European citizens. In accordance with these articles, all the European citizens shall equally benefit from the rights identified in EU constitution. They shall inhabit in and move freely to any European territory, participate in the elections equally with the other citizens of the country they live, apply to European Parliament, be protected equally as the other citizens are, apply to any EU organization in any of the EU languages. In addition to informing our learners about all those rights, we also try to create a correct understanding of what EU Process is and European citizenship is away from prejudice.
DEMOCRACY EDUCATION AND SCHOOL COUNCILS
Another activity involving citizenship education is "Democracy Education and School Councils" project. Pursuant to a protocol agreed by Ministry of National Education and Chairmanship of Turkish Great National Assembly on January, 23 th ., 2004 the above mentioned project has been initiated. The objective of the project is to provide a live example of democracy; thus, rise the primary and secondary school students' awareness of how democracy functions, respect the others' opinions, and teach them the importance of tolerance and social/political involvement along with handling their problems looking from their point of view.
The project was first initiated in 2004 at 300 pilot schools. In 2005, it was expanded to whole primary/secondary schools.
FINANCING EDUCATION
* In Turkey, primary, secondary and non-formal education are provided at government institutions and financed mostly by the government. Private schools are financed by citizens, private sectors and NGO's.
* Citizenship education is imparted not only at government institutions, but also by private schools, universities, NGO's. The curriculum is identified by Ministry of National Education and the Board of Education
COLLABORATION ON EU CITIZENSHIP EDUCATION
* Especially for the last two years, Turkey have focused on European Citizenship Education at the seminars and research trips organized to create a mutual insight to adult education activities in Germany and Turkey.
* Moreover, Turkey built collaboration between partner countries on setting up a centre for documentation, exchanging experiences, developing didactic material and forming mechanisms which enables multi-sided exchange to promote the dialogue between different cultures to eliminate prejudice and eventually to build the consciousness of European Citizenship; so, Istanbul Bakırköy Public training Centre developed a Grundtvig 1 project". Policies for Future Europe" in cooperation with partner adult education provider institutions from Germany, Austria, Bulgaria and Greece and proposed it to European Council.
* Thus, wishing to reach the goals of expanding European Citizenship Education which is already being imparted at our public training centres, we invited 10 managers or trainers from different pilot public training centres to the seminar held in İstanbul on Sept. 27th.- Oct 1st. 2005 where experts on European Citizenship Education had been assigned to train the trainers.
* In addition to those activities, Turkey is participating in a EU-Grundtvig 2 project called "Women's Empowerment for Active Citizenship".
LANGUAGE AND COMPUTER LITERACY
Language and computer literacy are the most required and mostly organized courses at our public training centres as they facilitate the integration with the world, learning how to learn and promote individual learning.
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Presentation Country Profiles - Italy
Valentina Cinti, Association School Instrument of Peace (EIP)
THE NORMATIVE ITALIAN BACKGROUND
The reform of the national system of education.
In 2003 was renewed the nature and the structure of the Italian national system of training and education. From a pyramidal model, based on the exclusive prerogatives of the State and its administration, it's been turned to a model that includes and presumes interactions and cooperation at 4 different levels:the State; Regions and local authorities; schools ; the family.
Thank to the new reform the school is interested in the education of the student in all his relationships, at different dimensions. From this perspective, it's implied also a review of the training of teachers, both the first one and the long life, preferring an effective "learning by doing" approach.
School and EDC
The Law n. 53/2003 that reformed the national system of education and training underlines once more the key role of the student in the whole system, and in its relationships with all the partners in charge of promoting its development. It remarks also the "right to learn" that each student has (art. 21, co. 9 law n. 59/97), and it focuses on the contributions and the responsibilities of families, schools and teachers, regions and local authorities, and the ones of other partners who have to work actively together.
The school system assumes that the new "autonomous school" is "a site of democratic citizenship and Human Rights Education" that involves in its educational programme, practical activities and experiences of participation based upon the value of pluralism, of the respect of differences, of recover of memory and cultural roots.
The most critical committing tasks assigned to the school is its function as a filter and link among heterogeneous and complex experiences, the education of young people can be considered a sort of new form of citizenship, defined by the Council of Europe "multiple citizenship".
EDC
The theme of the European Citizenship (active citizenship, democratic citizenship, European citizenship) is considered and included, as an important and transverse element that crosses several subjects in the curricula of the high schools.
The EDC is understood as a whole of good practices and activities aiming at promoting and empowering young people, to participate actively to the democratic life, availing themselves of their own rights and taking responsibilities in the society through:
* effective participation
* building up of a strong collaboration
* common targets to achieve with the efforts of all the actors involved
The cultural identities and the citizenship dimensions are in fact strongly interwoven, not only as far as learning at school is concerned, but also in the social environment, in lifelong education, and they require the participation of the school system along with that of all the educational institutions in the civil society
The 4 National Projects issued in the Plan of actions
* European Pilot project training for trainers in Education to the Democratic European citizenship. To increase the participation, the students are the real protagonists "e-learning methodology".
* Three-year project for headmasters and teachers of the secondary schools on the theme of Citizenship.
* National project "Education to the citizenship and to solidarity: the culture of human rights", addressed to teachers as well as students.
* National Project: "Protection of the Environment, safety of the territory" which involves teachers in their function of "multipliers".
"Ad hoc" initiatives developed in the Plan of actions
- Making aware Conference: the national meeting to inform and making people aware, in order to satisfy the need of disseminating in a better way key concepts as the EDC one, to aware consciences and personal responsibilities in the society.
- Organization of the students camp, (like Orvieto 2003, organised for the signatures of the European Constitution, and in 2003 and 2004)
- School and voluntary work.
- Project "Students in Europe – for a governance of young citizens of the Enlarged Europe". It empowered the participation and the belief to the European values of the Enlarged Europe of the students.
E.I.P. INITIATIVES, EYCE 2005
Fields: Peace, Human Rights and Citizenship.
* "Training regional course for teachers: "schools as laboratories of democratic citizenship to promote the social cohesion"
* "Training course for teachers/tutors EIP network "Education to the citizenship and civil cohabitation: teaching and living democracy"
* XXXIV annual EIP national competition for schools on the issue: "2005 European Year for education through citizenship"
* XXXV annual EIP national competition: "Cultures and citizenship: Scents, tastes, colours, values, sounds and voices, signs and symbols, as roots and proofs"
* HR and Citizenship in the Enlarged Europe, training course for teachers and students: human rights and citizenship in the enlarged European Union – with the collaboration of the Council of Europe.
* Training course for an active citizenship: "environmental education" workshops, management and IT communication
* Living the sports, project that focus on combating the violence in the sports – sport vs society
* Citoyen (fr ) – Citizen. Europe and Democratic Citizenship, international project.
Challenges and objectives:
Although all the actors and the practitioners involved are strongly committed in fostering this "active citizenship" there are still difficult challenges to face and needs to be met.
It's crucial to achieve:
* a deeper collaboration among the partners, that could allow a better sharing of experiences, projects and outcomes;
* an easier accessibility to funding, which sometimes are hard to find;
* responsible mass media, that regrettably don't pay the attention required to the EDC and HRE.
* ◦ ◦
Presentation Country Profiles - Finland Jorma Turunen, Workers Educational Association
Civic Education
* knowledge are nessery
* skills
* learning to participate by participation
* translating policy to practice
Examples (1) concrete actions
* participation as a natural part of curricula
– EYCE
* a national network of training for teachers
– promoting an interactive structure of schools
* "Citizen Participation in Teacher Training"-project
–
* strengthening the knowledge of citizens on the functions of society
teaching materials
Examples (2)
* "Youth Participation Project"
– preventing marginalisation of young people
* role of voluntary organisations
– training the personnel
– regulating the legislative provisions
– development grants
* collaboration with the scientific community
– maintaining contacts with the Nordic, OECD, Council of Europe and EU discourses
* a national media education programme
* promoting media literacy and encouraging critical attitudes to media
DEMOS – a Nordic case
* a Nordic learning network on democracy and active citizenship
* a range of Nordic non-formal adult educations behind the initiative
* DEMOS aims at producing a Nordic white paper on democracy, active citizenship and lifelong learning based on recent discussions of the EU, Council of Europe, OECD etc.
* another aim of DEMOS is to create a deliberative learning process based on discussions and discursive debates
* DEMOS will establish a think tank having an immense synergy potential for the involved organisations
* a kick-off conference in February 2006
The White Paper
* including a comparative analysis of available written material and scientific studies relating to Nordic studies on structures of power and democracy
Contents of the White Paper:
* how non-formal adult education becomes a proactive sector in the society
* conclusions of the Nordic studies on power and democracy
* citizenship and diversity
– what are the consequences to non-formal education viewing the citizens from a local, European and global perspective?
– a lot of existing practical networks have a European and global perspective
Contents…
* legal rights
– how are the communities affected by the fact that we live in a world of an increased individualization and perception of legal rights?
* social capital focusing on structures of basic trust and civic communities
|
Enquires: Adv. Megan Puchert
www.echsa.net
firstname.lastname@example.org
email@example.com
072 207 8226
firstname.lastname@example.org
31 January 2018
The Deputy Director-General: Curriculum Policy, Support and Monitoring
The Department of Basic Education
222 Struben Street
Pretoria
0002
BY E-MAIL: email@example.com
For Attention: Ms P. Ngcobo
COMMENTS ON: DRAFT POLICY ON HOME EDUCATION IN TERMS OF THE NATIONAL EDUCATION POLICY ACT 27 OF 1996
Introduction
1. The Eastern Cape Home Schooling Association (hereinafter referred to as "ECHSA") herewith presents its response to the invitation for public comments on the Draft Policy on Home Education (hereinafter referred to as the "Draft Policy") which was published on 17 November 2017.
2. ECHSA thanks the Department of Basic Education (hereinafter referred to as the "DBE") for the extension to submit comments on the Draft Policy, of which we were notified on 9 December 2017.
3. This submission replaces the ECHSA submission which was submitted on 8 December 2017.
4. ECHSA was established in 1998, and represents home educators in the Eastern Cape Province. ECHSA represents approximately 500 families.
5. The Draft Policy addresses matters pertaining to home education nationally and provincially and as such ECHSA, as a provincial association of home educators, has a direct interest. ECHSA's members are directly affected by the proposed provisions.
Objection to time-frame for filing of proper comments
6. Although ECHSA is grateful for the extension granted to submit revised comments on the Draft Policy, it is submitted that the time frame is still inadequate. The initial time-frame provided fell over a period when many home educating families and children were writing exams and completing their school year. The extension period fell over the December holiday period and the start of the school year period. Due to the nature of home education, the fact that membership is spread across the Eastern Cape Province in a decentralised fashion, the short time-frame and period of the school year, many challenges were experienced in formulating complete comments. The period for the submission of comments on the Draft Policy also came soon after the closing date of the call for comments on the Basic Education Laws Amendment Bill of 2017. This has added to the burden of submitting meaningful comments at a difficult time of the year.
Objection to the timing of the invitation for public comments
7. ECHSA objects to the timing of the publishing of the Draft Policy for comments. The Basic Education Laws Amendment Bill of 2017 was published on 13 October 2017 and the closing date for comments was 17 November 2017. (ECHSA also objected to the inadequate time-frame provided for public comments to the Basic Education Laws Amendment Bill of 2017.)
8. Within a week of the closing date for public comments on the Basic Education Laws Amendment Bill of 2017, the Draft Policy was published for public comments.
9. The Draft Policy refers to provisions in the South African Schools Act 84 of 1996 (hereinafter referred to as the "SA Schools Act") in its current unamended form (see paragraphs 6.2.(2) and 7 of the Draft Policy), and in its proposed amended form (see for example paragraphs 8.2 and 13(2)(e) of the Draft Policy).
10. The DBE has therefore issued a draft policy (which at most may be categorised as subordinate legislation) relying on provisions in draft primary legislation (in other words, the Basic Education Laws Amendment Bill of 2017) which are still to be analysed, discussed, debated and consulted on.
11. The fact that a Draft Policy was issued by the DBE, which incorporates provisions of draft primary legislation for which consultation processes are not complete, indicates a flagrant disregard for the democratic rights of the citizens in South Africa.
12. This furthermore begs the question whether the DBE intends to take seriously the submissions made on the draft primary legislation or whether the call for public comments was merely lip service being paid to consultation processes.
13. It would appear that the Executive is usurping the role of the Legislature; and infringing on its power by pre-empting the outcome of the consultation processes on the Basic Education Laws Amendment Bill of 2017; whereas such process only began on 13 October 2017.
14. These actions are providing grounds for judicial challenge of the proposed amendments, which will result in the provisions being declared invalid.
Request to engage in meaningful consultation
15. ECHSA requests that the DBE invites representatives of ECHSA to engage in a meaningful consultation process on matters affecting its members, including all aspects relating to the regulation of home education in the SA Schools Act, or any other matters which may affect home education in the Eastern Cape Province.
16. ECHSA requests that its members be given an opportunity to participate in meaningful consultations, be invited to present opinions and expert evidence, and to be heard in public hearings nationally and in the Eastern Cape Province.
17. The content of the provisions which are proposed creates a tension between the private and public spheres of society, and applies to and affects different human rights (the right to human dignity, the right to privacy, the freedom of conscience, religion, thought, belief and opinion, the freedom of expression, children's rights, the right to a basic education, and the right to just administrative action). Due to the fact that children are the focus of the proposed provisions, the application of the best interests of children, has to be of paramount importance. The very nature of the provisions which are proposed therefore demand that extensive consultation and public participation processes be followed throughout the proposed promulgation of the legislation.
Objection to the enabling provision
18. The Policy for the Registration of Learners for Home Education (GG No.20659 published on 23 November 1999) (hereinafter referred to as the "Current Policy"), was issued in terms of section 3(4)(g) of the National Education Policy Act 27 of 1996 (hereinafter referred to as the "National Education Policy Act"). Section 3(4)(g) of the National Education Policy Act provides that the Minister may determine national policy for the organisation, management, governance, funding, establishment and registration of education institutions.
19. Home education is not an "education institution" as is referred to in section 3(4)(g) of the National Education Policy Act. "Education institution" is defined in the National Education Policy Act as "any school contemplated in the South African Schools Act, 1996". "School" is defined in the National Education Policy Act as "a pre-primary, primary or secondary school". The SA Schools Act, in turn, defines "school" as "a public school or an independent school which enrols learners in one or more grades between grade zero and grade twelve". The definition for public schools in the SA Schools Act refers to a school contemplated in Chapter 3 (which does not include home education). The definition for independent schools in the SA Schools Act refers to a school registered or deemed to be registered in terms of section 46 (which again does not include home education). Home education therefore does not fit within the definition of education institution, as per the definitions of the National Education Policy Act or the SA Schools Act, and it is argued that the empowering provision of the Current Policy, is incorrect and invalid.
20. There does not appear to be any reference to the empowering provision of the Draft Policy.
21. In light of the fact that there is no reference to the empowering provision within the Draft Policy, ECHSA questions whether the Department of Basic Education concedes that the reference to section 3(4)(g) of the National Education Policy Act is/was incorrect and invalid.
22. ECHSA furthermore submits that there are insufficient grounds to argue that the
empowering provision is the general introductory portion of section 3(4) of the National Education Policy Act without any reference to the specific subsections listed under section 3(4), due to this general section's referring to the education system. The general portion of section 3(4) reads as follows: "Subject to the provisions of subsections (1) to (3), the Minister shall determine national policy for the planning, provision, financing, co-ordination, management, governance, programmes, monitoring, evaluation and well-being of the education system (our underlining) and, without derogating from the generality of this section, may determine national policy for - …".
23. The term "education system" is not defined in either the National Education Policy Act or the SA Schools Act.
24. The term "education" is however defined in the National Education Policy Act as "any education and training provided by an education institution, other than training as defined in section 1 of the Manpower Training Act, 1981". The term "education" is not defined in the SA Schools Act. Therefore, again, the term "education institution" is incorporated into the definition of "education", and it is clear that there exists no empowering provision for the promulgation of a national policy on home education in terms of section 3(4) of the National Policy Education Policy Act.
Comments on Provisions
25. Although ECHSA submits that the empowering provisions are not in existence, and that the Current Policy, and the Draft Policy are invalid, ECHSA does wish to provide detailed comments on proposed provisions, in order to participate in the development and understanding of home education in South Africa.
26. The fact that ECHSA wishes to provide comments, must in no way whatsoever be seen or interpreted to be that it concedes that the Current Policy and/or the Draft Policy are valid.
27. As mentioned above, ECHSA has not had sufficient time to prepare comments on the proposed provisions, even though it wishes to do so. In no way, whatsoever, should these comments be seen to be complete, and where comments are not made on provisions which appear in the Draft Policy, these omissions should not be interpreted to infer that ECHSA agrees with the provisions.
28. Please find below a limited number of comments on the specific paragraphs in the Draft Policy, in the format as was requested on the Department of Basic Education website. (ECHSA strongly opposes many of the provisions in the Draft Policy, as it does in the current SA Schools Act, and the proposed amendments in the Basic Education Laws Amendment Bill of 2017) and therefore ECHSA rejects the mere revision of some of the wording in the paragraphs under discussion.
29. As mentioned, ECHSA requests that extensive consultation occurs, whereby these provisions and the premise on which they are based can be analysed, discussed and solutions reached.
30. You are also referred to the submission made by ECHSA on the Basic Education Laws Amendment Bill of 2017 (Annexure A), as there are provisions which were commented on which directly pertain to the provisions in the Draft Policy.
DRAFT POLICY ON HOME EDUCATION
Policy Page Chapter/Section
Comment education'. By incorporating this definition, there will be confusion, inconsistency, uncertainty and ambiguity.
"school"
This definition for school does not correspond with the definition for school in the SA Schools Act or the National Policy Act. With the introduction of this definition, there will be 3 different definitions for 'school'. There is no consistency between the various documents.
"tutor"
The definition for tutor is limited and ambiguous. There is no indication as to what is meant by the term 'qualified educator'. It is also submitted that if it is the intention of the DBE to limit tutoring services for home educated children, to people who have obtained qualifications in teaching only, it is a severely limiting and restricting factor, which loses sight of the many rich learning experiences which home educators internationally and in South Africa expose their children to. An example is where an illiterate member of the community provides arts, crafts or music lessons which provide authentic exposure to traditional practices, diversity, and cultural values to a home educated child, the positive impact of which may far exceed that which a 'qualified teacher' may provide.
| | Policy Page | | Chapter/Section | Comment |
|---|---|---|---|---|
| 7 | | Paragraph 4. | | |
| | | 4. The International Covenant on Civil and Political Rights. Not only are these International Legal Instruments applicable, but also case law, and foreign law. |
|---|---|---|
| 7-10 | Paragraphs 4.-9. | It is not clear why it is necessary to incorporate these paragraphs into the Draft Policy. Although certain aspects are accurate and ECHSA appreciates the fact that the DBE has attempted to understand the character of home education in paragraph 8.3, many aspects are incomplete or inaccurate. These aspects require much further analysis and discussion. Paragraph 8.2 also refers to ‘purposeful programme of education’ which ECHSA disagrees with as commented on above pertaining to the definitions. ECHSA also objects to the incorporation of the requirement to register learners. As mentioned above, and in the ECHSA submission on the BELA Bill, ECHSA disagrees with the requirement to register a learner for home education. ECHSA also objects to the inclusion of the wording ‘illegal independent educational institution’ in the scope of home education. The determination of whether an educational institution is legal or illegal is a question of law and fact depending on the circumstances of each case. ECHSA submits that it is inappropriate to incorporate this wording or a negative explanation of what home education is into a policy. |
| | Policy Page | | Chapter/Section | Comment |
|---|---|---|---|---|
| 10-11 | | Paragraph 10.1 | | |
| 11-13 | | Chapter 2 | | |
| 11 | Chapter 2 Paragraph 12.(2)(b) |
|---|---|
| 12 | Chapter 2 Paragraph 13.(1)(a) |
| Policy Page | Chapter/Section | Comment |
|---|---|---|
| 12 | Chapter 2 Paragraph 13.(2)(e)(ii) |
|---|---|
| 12 | 14 |
|---|---|
| 13 | Chapter 3 Paragraph 18.1(1) |
|---|---|
| | Paragraph 18.5 |
Policy Page Chapter/Section
Comment on home educated learners. Home education is a positive alternative for many children who struggle within a mainstream school environment. There are ample home educated learners, who may be classified as children with 'additional support needs', who have benefited greatly from home education, away from mainstream schooling, and who have or are developing into healthy, functional, contributing, well-adjusted and upstanding citizens of South Africa. It is unfortunate that the Draft Policy misunderstands the benefits of and attraction to home education for children with 'additional support needs'. The use of the term 'barriers to learning' is also inappropriately applied to the home education environment. The term is defined in the SIAS 2014 definition section as referring to 'difficulties that arise within the education system as a whole, the learning site and/or within the learner him/herself which prevent access to learning and development' is not a definition which is acceptable to be used in a home education environment. Many home educated learners who had learning barriers while in a mainstream school system overcome the barriers merely by being removed from the 'education system' and the 'learning site' which are often the very cause of the barriers. It is requested that additional requirements and administrative burdens not be added to these children or their families who provide loving, caring and nurturing environments for their children. It is submitted that there are alternative measures
| | Policy Page | | Chapter/Section | Comment |
|---|---|---|---|---|
| 15 | | Chapter 3 Paragraph 23. | | |
Conclusion
31. We would like to thank the Department of Basic Education for the opportunity to provide constructive comments in relation to matters which affect home education in South Africa in general and the Eastern Cape in particular.
32. We are however concerned about the validity of the Current Policy and the Draft Policy, and therefore strongly reject the proposed provisions contained within in their entirety.
33. We sincerely hope that there will be further opportunities for constructive and collaborative interactions to address the complex problems with actual solutions.
Yours sincerely
Adv. Megan Puchert Chairperson
The Eastern Cape Home Schooling Association
|
Article
The fi nancial knowledge of Canadians
by Leslie-Anne Keown
March 8, 2011
Standard symbols for Statistics Canada
The following standard symbols are used in Statistics Canada publications:
. not available for any reference period
.. not available for a specifi c reference period
… not applicable
0 true zero or a value rounded to zero
0 s value rounded to 0 (zero) where there is a meaningful distinction between true zero and the value that was rounded
p preliminary
r revised
x suppressed to meet the confi dentiality requirements of the Statistics Act
E use with caution
F too unreliable to be published
The financial knowledge of Canadians
by Leslie-Anne Keown
Introduction
For optimum control over their financial lives, Canadians need to be knowledgeable about a multitude of financial options and actively engaged in the financial sector. Research, mostly conducted in a non-Canadian context, has shown that the ability to function within this complex system may influence people's capacity to buy a home, retire comfortably or support their children's postsecondary education. 1
Many things influence how Canadians navigate their way through the many financial options and services available. One of the factors affecting the finances of individuals is their level of financial knowledge. 2 This article uses the objective assessment (quiz) of financial knowledge that was asked as part of the 2009 Canadian Financial Capability Survey (CFCS). It explores, for the first time in a national Canadian context, how financial knowledge is related to sociodemographic characteristics and other financial behaviours like having a budget or investments. In particular, this article looks at two sets of characteristics: individual demographic characteristics such as age, income and sex; and the financial behaviour of individuals. The study includes individuals aged 18 to 64 who responded to the household income question of the CFCS and answered all the questions in the
30
Canadian Social Trends financial knowledge quiz (for more information about the data and concepts see "What you should know about this study").
The financial knowledge test of the CFCS was a multiple-choice quiz comprised of 14 questions compiled and adapted from a variety of
What you should know about this study
This article uses information from the 2009 Canadian Financial Capability Survey (CFCS). The CFCS was sponsored by Human Resources and Skills Development Canada, Finance Canada and the Financial Consumer Agency of Canada. Specifically, the survey was conducted to shed light on Canadians' knowledge, abilities and behaviour concerning financial decision making. In other words, how Canadians understand their financial situation, the financial services available to them and their plans for the future. The survey was designed to collect information surrounding respondents' approaches to day-to-day money management and budgeting, longer term money management and general financial planning.
The survey population was all persons 18 years and over living in the 10 provinces. The final survey sample was 15,519 individuals representing approximately 26 million Canadians. This article focuses on Canadians aged 18 to 64 who stated their household income and responded to all questions in the financial knowledge quiz. This gives a study population of 8,319 representing just over 14 million Canadians. Results are presented in the tables for those who did not report their household income, but these results are not discussed or analyzed in the text of the article.
Income 1 was grouped into three categories: people in households where the household income was in the median or middle income range ($67,001 to $95,000); people in households where the household income was lower than the median income range ($0 to $67,000); and those in households with incomes greater than the median range (over $95,000). 2
1. Approximately 30% of individuals did not state their household income and are not included in this article.
2. Collapsing of quintiles into three groups was done after the collapsed groups were verified as being similar.
Statistics Canada — Catalogue no. 11-008
sources. 3 These questions were asked for the first time in a national survey and provide a baseline measure. The quiz included questions on inflation and interest rates, credit reports and credit ratings, stocks and risk, insurance, taxation, debts and loans, and banking fees. The quiz questions and answers appear in Appendix A.
How did Canadians do on the quiz?
Overall, Canadians received a grade of 67% on the quiz. In other words, the average Canadian between 18 and 64, who reported household income in the survey, answered about 9 of the 14 questions correctly. Since this was the first time this group of questions had been asked in a national survey, it is not possible to know if financial knowledge is increasing or decreasing. However, it is possible to determine which characteristics are related to scoring higher or lower than average on the quiz.
The importance of income
Past research, largely done outside Canada, has indicated that income and financial knowledge are related in important ways. 4 Generally, it has been found that people with higher incomes do better on financial knowledge tests. One reason for this may be that people in lower income brackets may not need to use the same financial services as those in higher income brackets. As a result, people in lower income brackets may have less need for some financial services or knowledge and thus less experience in using these services. 5 For instance, limited disposable income or other financial resources may mean some individuals do not invest in the stock market and may not have acquired the same knowledge as others who do invest in the stock market.
Another reason for the relationship between income and financial knowledge may be that characteristics associated with higher incomes, such as higher levels of education, also influence performance on the quiz. 6
Statistics Canada — Catalogue no. 11-008
Furthermore, some international research has found a link between financial literacy (of which financial knowledge is an element) and financial behaviours like saving for retirement or using credit— particularly among those in lower income groups. 7
The CFCS quiz confirms the important association between household income and financial knowledge. Canadians with household incomes of $67,000 or less achieved an average score of 62%. Those with income in the median range ($67,001 to $95,000) had an average score of 67%. Those with incomes above the median (above $95,000) had an average grade of 71%, about 10 percentage points greater than those in the lower income group (Chart 1).
knowledge. Thus, it is also important to examine the relationship between financial knowledge and other characteristics both globally and within each income range.
The university-educated score higher on financial knowledge
Education was clearly associated with scores on the financial knowledge quiz. Across all income levels those who had a university degree had higher scores than those with less education. For example, university graduates had an average score of 73% while those with a high school diploma or less had an average score of 60% (Chart 2).
Not only did income impact f i n a n c i a l k n o w l e d g e s c o r e s directly, but it often influenced the relationship of individual demographic characteristics and financial behaviours with financial
Men consistently scored somewhat higher than women on the quiz but the difference in scores was relatively small for those in the lower and median income groups. The difference was most pronounced in the upper income group where men, on average, scored 3.1 percentage points higher than women (Table 1).
† reference group
* statistically significant difference from the reference group at p < 0.05
Source: Statistics Canada, Canadian Financial Capability Survey, 2009.
† reference group
* statistically significant difference from the reference group at p <0.05
Source: Statistics Canada, Canadian Financial Capability Survey, 2009.
Chart 3 Age only made a difference for the highest income group
* statistically significant difference from the reference group at p <0.05
Source: Statistics Canada, Canadian Financial Capability Survey, 2009.
32 Canadian Social Trends
The relationship between certain characteristics and financial knowledge differs by income level
Labour force status was also associated with quiz scores but the relationship varied across income groups. In the lowest and highest income groups, those who were self-employed or those who were retired scored higher than those were employed. In the median income group, the relationship between labour force status and financial knowledge was statistically significant but relatively weak.
In the aggregate, it appears that homeowners had higher financial knowledge scores than renters. However, once household income was considered, the relationship between home ownership and higher financial knowledge scores existed only for those in the lower income group. For the middle and higher income groups, home ownership was not associated with financial knowledge scores.
A similar situation occurs when the relationship between age and financial knowledge is considered. In general, the data show that younger individuals (18 to 24 years of age) had less financial knowledge than older individuals. However, once income is considered, the impact of age was seen only in the highest income group—it did not influence scores in the lower and middle income groups (Chart 3). Thus, older people with higher incomes had greater financial knowledge than their younger counterparts, but there were no agebased differences for the other two income groups.
Immigrants score lower on financial knowledge than those born in Canada
Immigrants had lower financial knowledge scores than people born in Canada. However, among immigrants, the length of time they had been in Canada was an important related characteristic—with those in Canada more than 10 years generally scoring higher than more recent immigrants
Statistics Canada — Catalogue no. 11-008
Table 1 Demographic characteristics and financial knowledge quiz scores
† reference group
1. Overall percentage means do not include those who did not state their household income.
* statistically significant difference from the reference group at p < 0.05
2. Results reported for those who did not state their household income, but no analysis is provided in the article.
Source: Statistics Canada, Canadian Financial Capability Survey, 2009.
Statistics Canada — Catalogue no. 11-008
(except in the highest income group). In addition, the difference in scores between those born in Canada and immigrants decreased in size as household income increased (Chart 4).
Financial knowledge scores vary by region of residence and income
Overall, scores on the financial knowledge quiz increased from east to west—from 64% in Atlantic Canada to 69% in British Columbia. However, as seen with the other socioeconomic and demographic characteristics, once household income is considered the relationship becomes more complex. For the lower income group, scores were higher in the west than in the east. For those in the middle income group, region of residence was not associated with financial knowledge. People in the highest income group had lower scores in Atlantic Canada and Quebec compared with those in Ontario and the west.
Among the various household types, people who lived alone did better on the financial knowledge quiz than those in families (Chart 5). This may be because those who live alone have sole responsibility for their day-to-day financial transactions and other financial decisions.
Financial behaviour and financial knowledge are related but income also plays a role
Not only is there a relationship b e t w e e n f i n a n c i a l k n o w l e d g e and demographic characteristics, but financial behaviour is also linked to financial knowledge. Individuals may acquire financial knowledge and subsequently use this knowledge in their day-to-day financial transactions. For example, individuals can learn about how credit, interest rates and general banking work when using a credit card to pay for purchases or withdrawing money for paying bills. Individuals can use and acquire financial knowledge while undertaking more complex and
34 Canadian Social Trends
† reference group
* statistically significant difference from the reference group at p <0.05
Source: Statistics Canada, Canadian Financial Capability Survey, 2009.
† reference group
* statistically significant difference from the reference group at p <0.05
Source: Statistics Canada, Canadian Financial Capability Survey, 2009.
Statistics Canada — Catalogue no. 11-008
Table 2 Household financial behaviours and financial knowledge quiz scores
† reference group
1. Overall percentage means do not include those who did not state their household income.
* statistically significant difference from the reference group at p < 0.05
2. Results reported for those who did not state their household income, but no analysis is provided in the article.
Source: Statistics Canada, Canadian Financial Capability Survey, 2009.
Statistics Canada — Catalogue no. 11-008
long-term financial transactions like investing, saving for retirement or making decisions about loans and mortgages. 8 These activities and transactions can be thought of as financial behaviours and they play an important role in the financial knowledge of individuals.
scored 3 percentage points higher than when responsibility was assumed by someone else (63% versus 60%). In contrast, for those in the above median group, the difference between these two groups is larger at 10 percentage points (74% versus 64%) (Table 2).
One important element of financial behaviour when considering its relationship to financial knowledge is the choices, decisions and actions made regarding household financial decisions and transactions. There are two distinct areas of financial participation: day-to-day transactions like paying bills and longer term financial decisions like financial investment and planning. In both of these areas, regardless of household income, those who have sole responsibility for these decisions had higher financial knowledge scores than those who had no responsibility or shared the responsibility. For instance, in the below median income group those with sole responsibility for day-to-day financial transactions
Specific actions or behaviours like having a credit card or taking a financial course are also financial behaviours that are related to financial knowledge. Regardless of income level, people with a credit card had higher financial knowledge scores than those who did not (67% versus 58%). People with investments also scored higher than those without, but the magnitude of the difference varied by income. Similarly, having taken some type of financial course in the 12 months preceding the survey was associated with higher scores on the financial knowledge quiz. Furthermore, people in the highest income group who followed a budget or made bill payments on time were significantly more likely
† reference group
* statistically significant difference from the reference group at p <0.05
Source: Statistics Canada, Canadian Financial Capability Survey, 2009.
36
Canadian Social Trends to have higher financial knowledge scores than those who were in the high income grouping but did not make bill payments on time or follow a budget (Table 2).
Summary
Navigating the myriad of financial options and understanding the underlying choices available can be a daunting task. Financial knowledge can assist with this navigation while simultaneously being enhanced by these activities.
The relationship between household income and financial knowledge is notable. Those in the higher income group had higher average scores than those in the lower and middle income groups, and the relationship between financial knowledge and other characteristics like demographics and financial behaviours often varied by income group.
Among the demographic characteristics, the relationship between education and financial knowledge was strong, with those with higher education having higher average scores. Men had slightly higher scores than women and the selfemployed had higher scores than those employed by someone else and those without work. Home ownership, region of residence, family status and age were also related to financial knowledge and the nature of these relationships varied by income. Immigrants had lower financial knowledge scores than people born in Canada. This relationship was complex, with income and time in Canada being important considerations when looking at average financial knowledge scores among immigrants.
Financial behaviours and financial knowledge were also related and often varied by income group. Being solely responsible for day-today financial responsibilities and other types of financial decisions was associated with having higher financial knowledge scores compared t o o t h e r s w h o s h a r e d t h e s e responsibilities, but the magnitude
Statistics Canada — Catalogue no. 11-008
of the difference varied by income group. Similarly, other financial behaviours like having a credit card or using a budget were also associated with financial knowledge.
CST
Leslie-Anne Keown is an analyst with Canadian Social Trends, Social and Aboriginal Statistics Division at Statistics Canada.
2. Braunstein, S. and C. Welch. 2002; and Hung, A., A. Parker and J. Yoong. 2009. Defining and Measuring Financial Literacy. Working Paper WR-708. http://ssrn.com/ abstract=1498674 (accessed March 2010).
3. Pignal, Jean and Sarah Guay. 2009. Validation of the Canadian Financial Capability Assessment. Unpublished. Special Surveys Division, Statistics Canada. Ottawa. p.10.
6. Bernheim, B. D. 1998. "Financial illiteracy, education, and retirement saving." Living with Defined Contribution Pensions. O. Mitchell and S. Schieber (eds.). Philadelphia. University of Pennsylvania Press p. 38-68.
Scott, J. 2006. "Financial knowledge of the low-income population: Effects of a financial education program." Journal of Sociology and Social Welfare. March.
7. Policy Research Initiative. 2006; Policy Research Initiative. 2004. Financial capability and poverty: discussion paper PRI (SEDI).
1. Braunstein, S. and C. Welch. 2002. "Financial literacy: An overview of practice, research, and policy." Federal Reserve Bulletin. November. p. 445-457.
4. Policy Research Initiative (PRI). 2006. Why financial capability matters: synthesis report on Canadians and their money. Ottawa. PRI.
5. Financial Services Authority of Great Britain (FSA). 2005. Measuring Financial Capability: An Exploratory Study. University of Bristol, Personal Finance Research Centre. FSA.
8. Braunstein, S. and C. Welch. 2002; Hilgert, M. and J. Hogarth. 2003. "Household financial management: The connection between knowledge and behavior." Federal Reserve Bulletin. July. p. 309-322; and Policy Research Initiative (PRI). 2006.
Appendix A The financial knowledge quiz of the Canadian Financial Capability Survey
Each of the 14 questions in the quiz is listed below. The correct answers and the percentage of the study population that selected the correct answer are presented in the answer key at the end of the box.
1. If the inflation rate is 5% and the interest rate you get on your savings is 3%, will your savings have at least as much buying power in a year's time?
a) Yes
b) No
2. A credit report is…?
a) A list of your financial assets and liabilities
b) A monthly credit card statement
c) A loan and bill payment history
d) A credit line with a financial institution
3. Who insures your stocks in the stock market?
a) The National Deposit Insurance Corporation
b) The Securities and Exchange Commission
c) The Bank of Canada
d) No one
4. True or false. By using unit pricing at the grocery store, you can easily compare the cost of any brand and any package size.
a) True
b) False
Statistics Canada — Catalogue no. 11-008
Appendix A The financial knowledge quiz of the Canadian Financial Capability Survey (continued)
5. If each of the following persons had the same amount of take home pay, who would need the greatest amount of life insurance?
a) A young single woman with two young children
b) A young single woman without children
c) An elderly retired man, with a wife who is also retired
d) A young married man without children
6. If you had a savings account at a bank, which of the following statements would be correct concerning the interest that you would earn on this account?
a) Sales tax may be charged on the interest that you earn
b) You cannot earn interest until you pass your 18th birthday
c) Earnings from savings account interest may not be taxed
d) Income tax may be charged on the interest if your income is high enough
7. Inflation can cause difficulty in many ways. Which group would have the greatest problem during periods of high inflation that lasts several years?
a) Young working couples with no children
b) Young working couples with children
c) Older, working couples saving for retirement
d) Older people living on fixed retirement income
8. Lindsay has saved $12,000 for her university expenses by working part-time. Her plan is to start university next year and she needs all of the money she saved. Which of the following is the safest place for her university money?
a) Corporate bonds
b) Mutual Funds
c) A bank savings account
d) Locked in a safe at home
e) Stocks
9. Which of the following types of investment would best protect the purchasing power of a family's savings in the event of a sudden increase in inflation?
a) A twenty-five year corporate bond
b) A house financed with a fixed-rate mortgage
c) A 10-year bond issued by a corporation
d) A certificate of deposit at a bank
10. Under which of the following circumstances would it be financially beneficial to borrow money to buy something now and repay it with future income?
a) When something goes on sale
b) When the interest on the loan is greater than the interest obtained from a savings account
c) When buying something on credit allows someone to get a much better paying job
d) It is always more beneficial to borrow money to buy something now and repay it with future income
11. Which of the following statements is not correct about most ATM (Automated Teller Machine) cards?
a) You can get cash anywhere in the world with no fee
b) You must have a bank account to have an ATM card
c) You can generally get cash 24 hours-a-day
d) You can generally obtain information concerning your bank balance at an ATM machine
Canadian Social Trends
Statistics Canada — Catalogue no. 11-008
38
Appendix A The financial knowledge quiz of the Canadian Financial Capability Survey (continued)
12. Which of the following can hurt your credit rating?
a) Making late payments on loans and debts
b) Staying in one job too long
c) Living in the same location too long
d) Using your credit card frequently for purchases
13. What can affect the amount of interest that you would pay on a loan?
a) Your credit rating
b) How much you borrow
c) How long you take to repay the loan
d) All of the above
14. Which of the following will help lower the cost of a house?
a) Paying off the mortgage over a long period of time
b) Agreeing to pay the current rate of interest on the mortgage for as many years as possible
c) Making a larger down payment at the time of purchase
d) Making a smaller down payment at the time of purchase
Answer key:
Statistics Canada — Catalogue no. 11-008
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Case 3:22-cv-03461-JSC Document 73 Filed 05/14/24 Page 1 of 26
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA
IN RE: BAM TRADING SERVICES INC.
Case No. 22-cv-03461-JSC
SECURITIES LITIGATION
AMENDED ORDER RE: MOTION TO
COMPEL ARBITRATION
1
Re: Dkt. No. 40
Lead Plaintiff Michael Nuveen brings this putative securities class action against BAM Trading Services Inc., and its CEO Brian Shroder following the May 2022 collapse of the algorithmic stablecoin UST (a form of cryptocurrency). Defendants' motion to compel arbitration is now pending before the Court. (Dkt. No. 40. 2 ) Having considered the parties' briefs and having had the benefit of oral argument on February 2, 2023 and March 5, 2024, as well as supplemental briefing following the Ninth Circuit Court of Appeals decision in Bielski v. Coinbase, Inc., 87 F.4th 1003, 1014 (9th Cir. 2023), and again following the March 5, 2024 hearing, the Court GRANTS the motion to compel arbitration. //
1 The Court amends its prior order solely to correct the caption and name of the lead plaintiff. See Fed. R. Civ. Pro. 60(b).
2 Record Citations are to material in the Electronic Case File ("ECF"); pinpoint citations are to the ECF-generated page numbers at the top of the document.
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//
Case 3:22-cv-03461-JSC Document 73 Filed 05/14/24 Page 2 of 26
BACKGROUND
A. Parties
BAM Trading Services, which operates under the trade name Binance U.S., is a "cryptoasset exchange that operates a platform on which customers discover, research, buy, and sell digital assets." (Dkt. No. 36, Amended Complaint at ¶¶ 1, 17.) Among other crypto-assets, BAM's website offered a platform for users to buy and sell UST. (Id. at ¶ 2.) Plaintiff began using BAM to purchase crypto-assets in December 2020 and first purchased UST through BAM's platform in April 2022. (Dkt. Nos. 48-1 at ¶ 2; 28-5 at ¶ 3.)
B. BAM's Terms of Use
To create an account and use BAM's platform, users must check a box indicating the user' consent to BAM's Terms of Use. (Dkt. No. 49-2 at ¶ 4.) The Terms of Use are available via a hyperlink next to the checkbox. (Id.) At the time Plaintiff opened his account in December 2020, the applicable Terms of Use were those that became effective October 30, 2020. (Id. at ¶ 3.) The Terms of Use stated in relevant part:
(Dkt. No. 49-3 at 2.)
// // // // // //
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C. The Arbitration Agreement
The October 2020 Terms of Use also included the following arbitration provision (the
"Arbitration Agreement"):
(Dkt. No. 49-3 at 19.)
The "complaint process" referenced in the Arbitration Agreement included the following
language:
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(Dkt. No. 49-3 at 16.)
D. Procedural Background
Plaintiff filed this putative class action in June 2022—a month after UST crashed and lost all its value—alleging Defendants failed to comply with state and federal securities laws. In November 2022, Defendants moved to compel arbitration. The case has been stayed pending a ruling from the Ninth Circuit Court of Appeals in Bielski v. Coinbase, No. 22-15566. Following the Ninth Circuit's ruling, see Bielski v. Coinbase, Inc., 87 F.4th 1003 (9th Cir. 2023), the Court directed the parties to submit supplemental briefing which is now complete. (Dkt. Nos. 59, 60, 61.) On March 5, 2024, the Court held a further hearing on the motion to compel arbitration. The parties submitted supplemental briefing following the hearing. (Dkt. Nos. 70, 71.)
LEGAL STANDARD
The Federal Arbitration Act ("FAA") provides arbitration agreements "shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for revocation of any contract." 9 U.S.C. § 2. Under the FAA, "arbitration agreements [are] on an equal footing with other contracts," and therefore courts must "enforce them according to their terms." Rent-ACenter, West, Inc. v. Jackson, 561 U.S. 63, 67 (2010) (internal citations omitted). A party may petition a court to compel "arbitration [to] proceed in the manner provided for in such agreement." 9 U.S.C. § 4.
The United States Supreme Court recognizes a "liberal federal policy favoring arbitration agreements." AT&T Mobility LLC v. Concepcion, 563 U.S. 333, 339 (2011); see also Moses H. Cone Mem'l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 24-25 (1983) (noting "as a matter of federal law, any doubts concerning the scope of arbitrable issues should be resolved in favor of arbitration"). Thus, courts must direct parties to proceed to arbitration should it determine: (1) a valid arbitration agreement exists; and (2) "the agreement encompasses the dispute at issue." Berman v. Freedom Fin. Network, LLC, 30 F.4th 849, 855 (9th Cir. 2022) (internal citation omitted).
DISCUSSION
The parties dispute (1) whether there was an agreement to arbitrate, (2) whether the
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Arbitration Agreement delegates the question of arbitrability to the American Arbitration Association ("AAA") arbitrator or can be properly heard by this Court, and (3) whether the Arbitration Agreement is unconscionable and thus unenforceable.
I. WHETHER THERE WAS AN AGREEMENT TO ARBITRATE
At oral argument, Plaintiff agreed that in light of the Ninth Circuit's recent decision Patrick v. Running Warehouse, LLC, 93 F.4th 468, 477 (9th Cir. 2024), Defendants have produced sufficient evidence Plaintiff consented to the Terms of Use in effect in October 2020 when he signed up for his account in December 2020. (Dkt. No. 69 at 4-5; see also Dkt. No. 65-3.) So, it is undisputed the parties formed an agreement to arbitrate under the October 2020 terms.
II. WHETHER ARBITRABILITY IS DELEGATED TO THE ARBITRATOR
The next question is who decides whether Plaintiff's claims must be arbitrated. "Gateway" questions of arbitrability are typically for a court, and not the arbitrator, to decide, even when there is a facial agreement to arbitrate. See Portland GE v. Liberty Mut. Ins. Co., 862 F.3d 981, 985 (9th Cir. 2017) (stating gateway questions of arbitrability "are presumptively reserved for the court"). Gateway questions include "whether the parties have a valid arbitration agreement or are bound by a given arbitration clause, and whether an arbitration clause in a concededly binding contract applies to a given controversy." Id. (internal quotation marks and citation omitted). Notwithstanding the presumption of judicial determination, "parties may delegate the adjudication of gateway issues to the arbitrator if they 'clearly and unmistakably' agree to do so." Id.; Rent-ACtr., 561 U.S. at 68-69 ("parties can agree to arbitrate 'gateway' questions of 'arbitrability,' such as whether the parties have agreed to arbitrate or whether their agreement covers a particular controversy" through a delegation clause.) (internal citation omitted). In Brennan v. Opus Bank, the Ninth Circuit held incorporating the AAA rules into an agreement can evince a "clear and unmistakable" intent to delegate. Brennan v. Opus Bank, 796 F.3d 1125, 1131 (9th Cir. 2015) (holding that at least in a contract between sophisticated parties, "incorporation of the AAA Rules constitutes clear and unmistakable evidence contracting parties agreed to arbitrate arbitrability").
Defendants insist the Arbitration Agreement clearly and unmistakably delegates arbitrability questions to the arbitrator because it incorporates the AAA rules. The relevant
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provision of the Arbitration Agreement states: "Arbitration shall be conducted in accordance with the rules of the American Arbitration Association ('AAA')." (Dkt. No. 49-3 at 19.) Plaintiff counters this is not clear and unmistakable evidence of delegation because (1) he was an unsophisticated consumer, and (2) the language is insufficient to incorporate the rules.
A. Sophistication of the Parties
In Brennan, the plaintiff was an experienced attorney and businessman who "became the Executive Vice President and Director for Strategy and Corporate Development for Opus Bank in December 2010, when he signed an Employment Agreement with Opus Bank" which included the arbitration provision incorporating the AAA rules. 796 F.3d at 1126-27. It was thus undisputed he was a sophisticated party. Id. Because the issue of sophistication was only raised at oral argument, the Ninth Circuit did not reach the issue. Id. at 1130. However, it noted its "holding today should not be interpreted to require that the contracting parties be sophisticated or that the contract be 'commercial' before a court may conclude that incorporation of the AAA rules constitutes 'clear and unmistakable' evidence of the parties' intent." Id. The court explicitly left open "the possibility that this rule could also apply to unsophisticated parties or to consumer contracts" which would be consistent with "the vast majority of the circuits that hold that incorporation of the AAA rules constitutes clear and unmistakable evidence of the parties' intent do so without explicitly limiting that holding to sophisticated parties or to commercial contracts." Id. at 1130-31 (citing Petrofac, Inc. v. DynMcDermott Petroleum Operations Co., 687 F.3d 671, 675 (5th Cir. 2012); Republic of Arg. v. BG Grp. PLC, 665 F.3d 1363, 1371 (D.C. Cir. 2012); Fallo v. High–Tech Inst., 559 F.3d 874, 878 (8th Cir. 2009); Qualcomm Inc. v. Nokia Corp., 466 F.3d 1366, 1373 (Fed. Cir. 2006); Terminix Int'l Co. v. Palmer Ranch LP, 432 F.3d 1327, 1332 (11th Cir.2005); Contec Corp. v. Remote Sol. Co., 398 F.3d 205, 208 (2d Cir. 2005); Awuah v. Coverall N. Am., Inc., 554 F.3d 7, 10–12 (1st Cir. 2009)).
The Ninth Circuit has still not answered this question. See Patrick, 93 F.4th at 481 ("Our circuit has not yet decided whether Brennan's holding should extend to arbitration clauses in consumer contracts between a sophisticated entity and an average unsophisticated consumer."). District courts throughout the Ninth Circuit remain split over whether the incorporation of
Case 3:22-cv-03461-JSC Document 73 Filed 05/14/24 Page 7 of 26
arbitration rules, such as the AAA rules, constitute "clear and mistakable" evidence the parties intended for the arbitrator to decide arbitrability issues when one of the parties is "nonsophisticated." See Eiess v. USAA Fed. Sav. Bank, 404 F. Supp. 3d 1240, 1252–53 (N.D. Cal. 2019) (explaining split). Recently, several "courts in this district have concluded that incorporation of the AAA or JAMS rules is sufficient for a court to find intent to delegate arbitrability, regardless of the parties' sophistication." Singh v. Payward, Inc., No. 23-CV-01435CRB, 2023 WL 5420943, at *7 (N.D. Cal. Aug. 22, 2023); see, e.g., Bazine v. Kelly Servs. Global, LLC, No. 22-cv-7170-BLF, 2023 WL 4138252, at *6 (N.D. Cal. June 21, 2023) (siding with courts holding incorporation of rules is adequate regardless of sophistication of parties); Gerlach v. Tickmark, Inc., No. 21-cv-2768-YGR, 2021 WL 3191692, at *4 (N.D. Cal. July 28, 2021) ("the greater weight of authority" holds incorporating rules is enough to delegate).
This Court also concludes incorporation of the AAA rules is clear and unmistakable evidence of an intent to arbitrate regardless of the parties' sophistication. First, this conclusion is consistent with the approach taken by other federal courts of appeal. See Brennan, 796 F.3d at 1131 (collecting circuit court decisions). It is also consistent with California law which governs the contract interpretation question here. See McLellan v. Fitbit, Inc., No. 3:16-CV-00036-JD, 2017 WL 4551484, at *3 (N.D. Cal. Oct. 11, 2017) ("California law…does not make a categorical distinction between 'sophisticated' and 'unsophisticated' parties for purposes of enforcing an incorporated delegation clause.") (citing Rodriguez v. American Technologies, Inc., 136 Cal. App. 4th 1110, 1123 (Cal. Ct. App. 2006)).
Second, an alternative approach "requires impractical line-drawing." Singh, 2023 WL 5420943, at *8; see also McLellan, 2017 WL 4551484, at *3 ("A party-by-party assessment of sophistication under some loose amalgam of personal education, line of work, professional knowledge, and so on would undermine contract expectations in potentially random and inconsistent ways. Applying such an individualized inquiry in the class action context would likely raise additional problems.").
Third, Plaintiff has not alleged, let alone offered evidence, that he is an unsophisticated consumer. To the contrary, in seeking to be appointed as lead plaintiff in this matter, Plaintiff,
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who works as an orthodontist, represented himself as an "experienced crypto investor" of more than five years. (Dkt. No. 28 at 5.) "He purchased over $437,151.82 in UST on Binance U.S., investments on which he has suffered losses of at least $406,322.78." (Id.) As an experienced crypto trader investing over $400,000, and a professional who himself has customers, he is a far cry from the unsophisticated consumers in the cases on which he relies. (Dkt. No. 48 at 11 (citing Ingalls v. Spotify USA, Inc., No. C 16-03533 WHA, 2016 WL 6679561, at *4 (N.D. Cal. Nov. 14, 2016) ("two ordinary consumers" who signed up for Spotify's free music streaming service); Meadows v. Dickey's Barbecue Rests. Inc., 144 F. Supp. 3d 1069, 1079 (N.D. Cal. 2015) (finding individuals who had never run a business or owned a franchise before unsophisticated when they were "asked to sign a complicated, 60-page agreement, drafted by Dickey's, containing a myriad of legal terms"). It is thus unsurprising he does not argue he himself is unsophisticated, and instead contends "he is not a large corporation or trained in the law—he is a 'far less sophisticated' than Binance." (Dkt. No. 48 at 18 (citation omitted).) No case holds one must be a corporation or a lawyer to be bound by a delegation clause.
Finally, Plaintiff's reliance at oral argument on Mikhak v. Univ. of Phoenix, No. C1600901 CRB, 2016 WL 3401763 (N.D. Cal. June 21, 2016), is unavailing. The court there declined to enforce the delegation clause "because the courts remain divided on whether parties must be sophisticated to delegate arbitrability and because Mikhak's sophistication is subject to dispute, it is not certain that Mikhak clearly and unmistakably delegated arbitrability." Id. at 5. But as the Ninth Circuit recently clarified in Fli-Lo Falcon, LLC v. Amazon.com, Inc., No. 22-35818, 97 F.4th 1190, 2024 WL 1547091 (9th Cir. Apr. 10, 2024), Plaintiff must identify evidence that creates a dispute of fact as to sophistication, and Plaintiff has not done so here. Id. at *8 (citing Hansen v. LMB Mortg. Servs., Inc., 1 F.4th 667, 670 (9th Cir. 2021) (holding motions to compel arbitration are subject to the summary judgment standard)); see also Patrick, 93 F.4th at 481 ("Plaintiffs offered no evidence concerning their sophistication or lack thereof to the district court.").
So, the Court rejects Plaintiff's "unsophisticated consumer" attempt to avoid the delegation clause.
B. The Arbitration Agreement Sufficiently Invokes the AAA Rules
Plaintiff also insists incorporating the AAA rules generally—without appending the AAA Rules or specifying the AAA Consumer Arbitration Rules apply—is insufficient to clearly and unmistakably delegate arbitrability to the arbitrator. No court has so held. In Fli-Lo-Falcon, the arbitration agreement included the following language: "The arbitration will be conducted by the American Arbitration Association (the "AAA") under its rules, including the AAA's Commercial Arbitration Rules. The AAA's rules are available at www.adr.org or by calling 1-800-778-7879." The Ninth Circuit assumed this language constituted an enforceable delegation provision. Fli-Lo Falcon, 2024 WL 1547091, at *7. Further, the Ninth Circuit has held the failure to attach the AAA rules does not render an arbitration agreement procedurally unconscionable. Poublon v. C.H. Robinson Co., 846 F.3d 1251, 1262 (9th Cir. 2017). Moreover, Plaintiff does not contend there is any difference as to a delegation clause among the various AAA rules; regardless of which AAA rules apply, the arbitrator decides arbitrability. See Khraibut v. Chahal, No. C15-04463 CRB, 2016 WL 1070662, at *5 (N.D. Cal. Mar. 18, 2016) (holding arbitration agreement that incorporated AAA rules without specifying which AAA rules clearly and unmistakably delegated arbitrability because regardless of which rules apply, "the same [delegation] language applies and does not create enough ambiguity or confusion to defeat a 'clear and unmistakable' showing").
None of the cases Plaintiff cites, in his briefs and at oral argument, persuades the Court otherwise. In Dembiczak v. Fashion Nova, LLC, No. 2:23-CV-00408-LK, 2024 WL 580701 (W.D. Wash. Feb. 13, 2024), for example, the arbitration agreement stated the arbitration would be conducted in accordance with specific rules that did not exist. Id. at *5. And in MacClelland v. Cellco P'ship, 609 F. Supp. 3d 1024 (N.D. Cal. 2022), the party bringing the claim could choose between AAA's consumer arbitration rules or the BBB's rules for binding arbitration, and the latter did not contain an explicit delegation clause. Id. at 1032. No such ambiguity exists here.
Finally, Plaintiff contends the Arbitration Agreement does not adequately incorporate the AAA rules. Not so. The Agreement explicitly provides arbitration will be conducted "in accordance with the rules of the American Arbitration Association." (Dkt. No. 49-3 at 19.) Those rules delegate arbitrability to the arbitrator. So, "in accordance with the rules of the American
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Arbitration Association," the arbitrator decides arbitrability here. In Davenport v. Nvidia Corp., No. 23-CV-01877-PCP, 2024 WL 832387 (N.D. Cal. Feb. 28, 2024), for example, the court concluded:
[the] Agreement does not include a delegation provision explicitly. It states only that NVIDIA customers with certain disputes agree to "submit the dispute to binding arbitration before an arbitrator from Judicial Mediation and Arbitration Services ('JAMS') located in Santa Clara County, California under the Optional Expedited Arbitration Procedures then in effect for JAMS."
Id. at *3. The court contrasted that language with the language in Brennan when "the incorporation was express—the arbitration agreement at issue stated that claims "'shall be settled by binding arbitration in accordance with the Rules of the American Arbitration Association.'" Id. (quoting Brennan, 796 F.3d at 1128) (emphasis in original). The language here mirrors that in Brennan: "Arbitration shall be conducted in accordance with the rules of the American Arbitration Association ('AAA')." (Dkt. No. 49-3 at 19.)
***
Accordingly, the parties clearly and unmistakably delegated the question of arbitrability to the arbitrator, and, consequently, the next question is whether the agreement to delegate arbitrability is unconscionable.
III. WHETHER THE DELEGATION CLAUSE IS UNCONSCIONABLE
Under the FAA, an arbitration agreement is invalid when it is unenforceable under "generally applicable contract defenses" recognized by state law, such as "unconscionability." Concepcion, 563 U.S. at 339 (internal quotation marks and citation omitted). Under California law, plaintiffs seeking to invalidate a contractual provision as unconscionable must prove both procedural and substantive unconscionability. See Tompkins v. 23andMe, Inc., 840 F.3d 1016, 1023 (9th Cir. 2016) (citing Armendariz v. Found. Health Psychcare Servs., 24 Cal. 4th 83, 114 (2000)). However, "California courts employ a sliding scale to determine unconscionability, the more substantively oppressive the contract terms, the less evidence of procedural unconscionability is required to conclude the terms are unenforceable, and vice versa." Fisher v. MoneyGram Int'l, Inc., 66 Cal. App. 5th 1084, 1093 (2021). Procedural unconscionability
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"focus[es] on oppression or surprise due to unequal bargaining power" whereas substantive unconscionability focuses "on overly harsh or one-sided results." Sonic-Calabasas A, Inc. v. Moreno, 57 Cal. 4th 1109, 1133 (2013).
To challenge a delegation provision on unconscionability grounds, "the party resisting arbitration must specifically reference the delegation provision and make arguments challenging it," but the party can "use the same arguments to challenge both the delegation provision and arbitration agreement, so long as the party articulates why the argument invalidates each specific provision." Bielski, 87 F.4th at 1011. Defendants do not dispute Plaintiff properly challenged the delegation clause as Bielski requires. (Dkt. No. 69 at 20.)
A. Procedural Unconscionability
"Procedural unconscionability concerns the manner in which the contract was negotiated and the respective circumstances of the parties at that time, focusing on the level of oppression and surprise involved in the agreement." Chavarria v. Ralphs Grocery Co., 733 F.3d 916, 922 (9th Cir. 2013) (internal citations omitted); see also Sanchez v. Valencia Holding Col, LLC, 61 Cal. 4th 899, 910 (2015) (describing procedural unconscionability as focusing on "oppression or surprise due to unequal bargaining power.") (internal citation omitted).
Plaintiff argues as a threshold matter the delegation clause is procedurally unconscionable because it is part of a contract of adhesion. A "contract of adhesion signifies a standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject it." Armendariz, 24 Cal. 4th at 113 (cleaned up). Defendants concede, as they must, "take-it-or-leave-it adhesion contracts always contain some degree of procedural unconscionability." Bielski, 87 F.4th at 1014 (cleaned up). Defendants nonetheless maintain the availability of market alternatives defeats Plaintiff's argument regarding the adhesive nature of the contract. However, "[t]he availability of alternative business opportunities does not preclude a finding of procedural unconscionability under California law." Pokorny v. Quixtar, Inc., 601 F.3d 987, 997 (9th Cir. 2010) (internal citations omitted). Plaintiff insists regardless of any market alternatives the delegation clause is procedurally unconscionable because (1) the pre-arbitration dispute process is onerous, and (2) the
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Terms of Use neither attach the AAA rules nor specify which AAA rules apply.
1. The Pre-Arbitration Dispute Process
In Bielski, the Ninth Circuit considered whether Coinbase's three-step dispute process rendered the agreement procedurally unconscionable. Bielski, 87 F.4th at 1014. Under the agreement "a user must first try resolving any dispute with Coinbase informally, and if that fails, a user must file a formal complaint with Coinbase before initiating arbitration." Id. "Coinbase has obligations under this process too: it must acknowledge receipt of the complaint; review and evaluate it; and within fifteen business days, resolve the issue in the way requested by the user, reject the user's complaint and provide reasons why, or offer an alternative solution." Id. Bielski concluded these "pre-arbitration dispute resolution procedures are not onerous or beyond the reasonable expectation of the user" and so the level of procedural unconscionability was low. Id.
BAM's agreement likewise references a three-step process: informal complaint, written notice of intent to arbitrate, and arbitration. (Dkt. No. 49-3 at 16, 19.) Plaintiff insists BAM's agreement is more onerous than in Bielski and thus warrants a finding of a high level of procedural unconscionability because there is no time limit to the complaint process, and after a customer submits a written notice of intent to arbitrate, the customer must wait another 30 days before commencing the arbitration process. Neither argument is availing. First, Plaintiff ignores a critical distinction between BAM's agreement and that in Bielski—the complaint process here is not mandatory. The arbitration provision states "[i]f we cannot resolve your dispute through the complaint process (See Filing a Complaint), you agree that any dispute or controversy arising out of or relating to these Terms shall be settled through binding arbitration on an individual basis." (Dkt. No. 49-3 at 19.) It does not require customers to first exhaust the complaint process. The lack of mandatory language for the complaint process is highlighted by BAM's use of mandatory language later in the same section when discussing the requirement of written notice: "[a] party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail, Federal Express, UPS, or Express Mail (signature required) ("Notice")." (Id. (emphasis added).) Further, in Bielski, the agreement allowed Coinbase to seek dismissal if the consumer does not follow the complaint process:
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If we cannot resolve the dispute through the Coinbase support team, you and we agree to use the Formal Complaint Process set forth below. You agree to use this process before filing any arbitration claim or small claims action. If you do not follow the procedures set out in this Section before filing an arbitration claim or suit in small claims court, we shall have the right to ask the arbitrator or small claims court to dismiss your filing unless and until you complete the following steps.
Bielski v. Coinbase, Inc., No. C 21-07478 WHA, 2022 WL 1062049, at *3 (N.D. Cal. Apr. 8, 2022). The BAM agreement does not include any similar provision, further highlighting that the complaint process is not a mandatory prerequisite to filing suit.
But, even if the process was mandatory, Plaintiff does not explain why a 30-day time period for responding to complaints (BAM) as opposed to a 15-day time period (Bielski) is onerous beyond reasonable expectations. And as Plaintiff concedes, both agreements allow the 30 or 15day time periods to be extended under exceptional circumstances. (Dkt. No. 60 at 10 n.2.) While Bielski's clause contains a date certain by which Coinbase would resolve a dispute, BAM's agreement requires the complaint officer use reasonable efforts to resolve the dispute in 30 days absent exceptional circumstances, and even then, the complaint officer is required to provide the consumer with a deadline by which the officer will respond. (Dkt. No. 49-3 at 16.) Plaintiff does not explain how such a provision is beyond a consumer's reasonable expectations.
Finally, Plaintiff emphasizes BAM's requirement that consumers mail their written notice of an intent to arbitrate. (Dkt. No. 49-3 at 19.) To be sure, to require a consumer mail the notice via certified mail, Federal Express, UPS, or Express Mail—as opposed to also providing an online option—is likely to deter consumers from filing notice. But Plaintiff has not cited any California or federal case holding mail notice in any context is unconscionable. And waiting 30 days after mailing the complaint to initiate arbitration is not so onerous as to be beyond the reasonable expectation of the consumer.
So, as in Bielski, the pre-arbitration dispute resolution process warrants at most a low level of procedural unconscionability. Bielski, 87 F.4th at 1014 ("Pre-arbitration dispute resolution procedures are commonplace and can be both 'reasonable and laudable'" and warrant a low level of procedural unconscionability).
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2. Incorporation of AAA Rules by Reference
Failure to attach the AAA rules and/or failure to specify which AAA rules apply does not in and of itself warrant a finding of procedural unconscionability.
[A] viable claim of procedural unconscionability for failure to identify the particular version of the applicable arbitral rules—like a claim for failure to attach the rules themselves—depends in some manner on the substantive unfairness of a term or terms contained within the unidentified version of the rules applicable to the dispute. That is, if the unidentified rules are not themselves substantively unfair, then the employer cannot be faulted for vaguely referring to such rules.
Davis v. Kozak, 53 Cal. App. 5th 897, 909 (2020) (citation omitted); see also Poublon, 846 F.3d at 1262 ("While courts will more closely scrutinize the substantive unconscionability of terms that were 'artfully hidden' by the simple expedient of incorporating them by reference rather than including them in or attaching them to the arbitration agreement, incorporation by reference, without more, does not affect the finding of procedural unconscionability.") (cleaned up). The question then is whether Plaintiff has identified a substantive unfairness in the AAA arbitration rules. He has not.
Plaintiff's reliance on Shahtout v. California Psychcare, Inc., 562 F. Supp. 3d 913, 928 (C.D. Cal. 2022), is unpersuasive. Shahtout relied on two California Court of Appeals cases, Fitz v. NCR Corp., 118 Cal. App. 4th 702, 721 (2004), and Harper v. Ultimo, 113 Cal. App. 4th 1402, 1406 (2003), to conclude failure to provide notice of the specific applicable AAA rules weighs in favor of a finding of procedural unconscionability. Shahtout, 562 F. Supp. 3d at 927-28. However, as the California Supreme Court clarified in Baltazar v. Forever 21, Inc., Fitz and Harper do not stand for the proposition that a "failure to provide a copy of the arbitration rules to which the employee would be bound supported a finding of procedural unconscionability"; rather, "[t]hese cases [] stand for the proposition that courts will more closely scrutinize the substantive unconscionability of terms that were 'artfully hidden' by the simple expedient of incorporating them by reference rather than including them in or attaching them to the arbitration agreement." 62 Cal. 4th 1237, 1246 (2016) (quoting Harper, 113 Cal. App. 4th at 1406); see also Nguyen v. Applied Med. Res. Corp., 4 Cal. App. 5th 232, 249 (2016) ("following Baltazar, the failure to attach the applicable AAA rules did not increase the procedural unconscionability of the
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application or its arbitration provision"). Plaintiff has not identified any "artfully hidden" terms in the AAA rules at issue here.
Accordingly, Defendants' failure to attach or reference the specific AAA rules warrants no more than a low—if any—finding of procedural unconscionability.
B. Substantive Unconscionability
Under California law, "[s]ubstantive unconscionability focuses on the one-sidedness of the contract terms." Ting v. AT&T, 319 F.3d 1126, 1149 (9th Cir. 2003) (citing Armendariz, 24 Cal. 4th at 114). A delegation "clause may be found substantively unconscionable where it imposes an unfair burden that is different from the inherent features and consequences of delegation clauses." Pinela v. Neiman Marcus Grp., Inc., 238 Cal. App. 4th 227, 246 (2015).
Plaintiff insists the delegation clause is substantively unconscionable because it (1) lacks mutuality, (2) imposes an onerous unfair burden in the form of a pre-arbitration dispute process beyond that of a typical delegation clause, (3) reserves to itself the unilateral ability to amend or modify the Terms, (4) is silent on the issue of arbitration costs, and (5) the Terms of Use contain a limitation of liability provision. (Dkt. Nos. 48 at 21-25, 60 at 13-17, 70 at 11-14.) Recent Ninth Circuit decisions dispose of the first, second, and third arguments. Patrick, 93 F. 4th at 479-80 (disposing the third argument); Bielski, 87 F.4th at 1014-15 (disposing the first and second arguments). The final argument was raised by Plaintiff for the first time at oral argument and the Court granted the parties leave to submit supplemental briefing regarding it and arbitration costs issue. (Dkt. Nos. 70, 71.)
1. Lack of Mutuality and the Pre-Arbitration Dispute Process
In Bielski, the Ninth Circuit considered whether "[a] lack of mutuality and the presence of user-only pre-arbitration dispute resolution processes" warranted a finding of substantive unconscionability. 87 F.4th at 1015. While the court began with the premise "both weigh toward finding a provision substantively unconscionable," it concluded both established at most a low level of substantive unconscionability. Id. Given the similarities between the Bielski provisions and the parties' agreements here, Bielski is dispositive. As here, the Coinbase arbitration provision only required users to arbitrate. Id. "But because 'the California Supreme Court has
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confirmed that a one-sided contract is not necessarily unconscionable,' something more than the absence of mutuality is required for us to find the provision unconscionable." Id. (quoting Tompkins v. 23andMe, Inc., 840 F.3d at 1030). The Bielski court concluded the pre-arbitration dispute resolution process did not establish "something more." Bielski, 87 F.4th at 1015.
Plaintiff contends the pre-arbitration dispute process here establishes the something more because it does not require BAM to resolve the disputes within a reasonable time and it only requires customers to pursue the dispute resolution process. The latter argument was flatly rejected by Bielski. Bielski, 87 F.4th at 1015 ("It is undisputed that only Coinbase's users must engage in the pre-arbitration dispute resolution process, giving Coinbase a 'free peek' at users' potential claims without affording users that same opportunity. But we do not find these prearbitration procedures to be overly harsh or unfairly one-sided."). And the former argument is likewise unavailing for the reason discussed above—the complaint process is not mandatory. Further, BAM's agreement requires the complaint officer use reasonable efforts to resolve the dispute in 30 days absent exceptional circumstances, and even then, the complaint officer is required to provide the consumer with a deadline by which the officer will respond. (Dkt. No. 49-3 at 16.)
So, the "lack of mutuality in the delegation provision, combined with the pre-arbitration dispute resolution process establishes, at most, a low level of substantive unconscionability." Bielski, 87 F.4th at 1015.
2. Unilateral Amendment of Terms
Plaintiff also argues the unilateral modification provision renders the agreement substantively unconscionable. The Ninth Circuit in Patrick expressly rejected this argument: "the presence of a unilateral modification provision, without more, does not render a separate arbitration clause at all substantively unconscionable" as "California courts have held that the implied covenant of good faith and fair dealing prevents a party from exercising its rights under a unilateral modification clause in a way that would make it unconscionable." Patrick, 93 F. 4th at 480 (quoting Tompkins v. 23andMe, Inc., 840 F.3d at 1033 (considering whether a provision giving "Defendants the unilateral right to amend terms with no notice to users, presents at least
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some substantive unconscionability" (cleaned up)). Because Plaintiff has not argued "something more" than the mere presence of the unilateral modification provision, the existence of this clause does not establish any substantive unconscionability.
3. Arbitration Costs
Finally, Plaintiff insists the delegation clause is substantively unconscionable because it is silent as to costs if BAM initiates arbitration as well as on costs beyond the initial filing fee regardless of which party initiates. (Dkt. Nos. 48 at 26, 60 at 16-17, 70 at 8-11.)
As a preliminary matter, Defendants insist "Plaintiff's payment argument fails because the payment issue does not address the delegation clause but, at most, the arbitration agreement so it should be delegated to the arbitrator." (Dkt. No. 61 at 5.) Defendants cite no authority for this proposition and Plaintiff expressly challenges the delegation clause as substantively unconscionable based on the fee issue. (Dkt. No. 60 at 16.) Defendants do not dispute—nor could they—that the issue of cost apportionment applies equally to arbitration under the delegation clause as to arbitration of the parties' dispute generally; that is, the parties incur the same types of arbitration costs to decide the arbitrability question delegated to the arbitrator as when the arbitrator decides the underlying dispute between the parties. See Lim v. TForce Logistics, LLC, 8 F.4th 992, 1003 (9th Cir. 2021) (concluding arbitration agreement's requirement that the plaintiff pay half the fees, "including with respect to the gateway issue of arbitrability," made a delegation clause substantively unconscionable). So, the cost issue goes to the conscionability of the delegation clause.
The Arbitration Agreement's lone provision regarding costs/fees states:
If you choose to file an arbitration proceeding and you are required to pay a filing fee, BAM will reimburse you for that filing fee, unless your claim is for greater than US $10,000, in which case you will be responsible for the filing fee.
(Dkt. No. 49-3 at 19.) Under California Code of Civil Procedure, Section 1284.2,
[u]nless the arbitration agreement otherwise provides or the parties to the arbitration otherwise agree, each party to the arbitration shall pay his pro rata share of the expenses and fees of the neutral arbitrator, together with other expenses of the arbitration incurred or approved by the neutral arbitrator, not including counsel fees or witness fees or other expenses incurred by a party for his own benefit.
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Cal. Civ. Proc. Code § 1284.2. Plaintiff insists because the Arbitration Agreement is silent as to fees and costs other than the filing fees, and silent as to all fees if BAM initiates arbitration, Section 1284.2 requires the parties to split any other fees or costs. Including a cost-sharing provision in an arbitration agreement, "impermissibly imposes a 'type of expense that [plaintiff] would not be required to bear if he [ ] were free to bring the action in court.'" Lim, 8 F.4th at 1003 (quoting Armendariz, 24 Cal. 4th at 110–11); see also Reyes v. Hearst Commc'ns, Inc., No. 2116542, 2022 WL 2235793, at *1 (9th Cir. June 22, 2022) ("The district court correctly held that Hearst's arbitration agreement with Reyes violated this rule because it contained a provision requiring Reyes to pay an equal share of all arbitration fees."). While Lim, Armendariz, and Reyes all arose in the context of employment agreements, "Courts have also found cost-shifting provisions unconscionable in contexts beyond employment agreements." Shahtout, 562 F. Supp. 3d at 925 (collecting cases). For example, in Ting v. AT&T, 319 F.3d 1126, the Ninth Circuit held a cost-splitting provision in a consumer contract unconscionable because "it imposes on some consumers costs greater than those a complainant would bear if he or she would file the same complaint in court." Id. at 1151.
In their supplemental reply brief, Defendants argue for the first time the Arbitration Agreement is not silent as to fees because it incorporates the AAA rules, and the applicable AAA Consumer Rules address all other payments. In particular, Defendants urge these rules provide: "(1) a $200 filing fee for the consumer and $1,700 for the business (for one arbitrator), (2) the 'business' pays the arbitrator fees unless the consumer volunteers, and (3) low-income consumer exemptions." (Dkt. No. 61 at 5-6 (citing AAA Consumer Rules pp. 33-34, "Costs of Arbitration (Including AAA Administrative Fees)." (Consumer Rules.pdf (adr.org)).)
Defendants did not initially submit a copy of these rules, but they have done so with their second supplemental reply brief. (Dkt. No. 71-4.) However, the fee schedule in the document Defendants provide does not appear to be the updated fee schedule. See Consumer Arbitration Rules, Costs of Arbitration, updated January 15, 2024, https://go.adr.org/consumerfeeschedule.html (last visited Apr. 12, 2024). The filing fee in this updated schedule is slightly higher than the amount of fees stated by Defendants ($225 versus
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$200), but nonetheless lower than the $405 fee to file an action in this Court and thus does not run afoul of Armendariz. Further, the AAA Consumer Rules Fee Schedule provides that the other fees—the case management fees, hearing fees, and arbitrator's compensation—shall be paid by the business, unless, in the case of the arbitrator's fees, the "individual, post dispute, voluntarily elects to pay a portion of the arbitrator's compensation." See
https://go.adr.org/consumerfeeschedule.html.
If incorporation of the AAA rules, which in turn give the arbitrator the authority to decide arbitrability, is "clear and unmistakable evidence that contracting parties agreed to arbitrate arbitrability," there is no principled basis to conclude incorporation of the AAA rules which include a fee schedule does not also incorporate the AAA fee schedule. See Brennan, 796 F.3d at 1130. Because the Arbitration Agreement incorporates the AAA rules, and thus the AAA fee schedule, the agreement is not silent as arbitration costs; so, California Civil Code Section 1284.2 does not apply.
This holding is consistent with the Ninth Circuit's reasoning in Lifescan, Inc. v. Premier Diabetic Servs., Inc., 363 F.3d 1010, 1011 (9th Cir. 2004), which considered what happens when a party to an arbitration agreement is unable to pay its pro-rata share of arbitration fees. The party seeking to compel the other to pay its pro rata share argued Section 1284.2 required pro rata apportionment of fees. Id. at 1013. The Ninth Circuit rejected this argument noting "section 1284.2 comes into play only if the parties' agreement is silent about the apportionment of fees" and the agreement at issue was "not silent because it incorporates the rules of the AAA, which do cover the apportionment of fees: They leave it up to the arbitrators." Id. So too here. Because the Arbitration Agreement is not silent as to fees, Section 1284.2 does not apply.
Plaintiff attempts to avoid this conclusion by arguing in his second supplemental brief that because this is a putative class action, the "AAA Supplementary Rules of Class Arbitration," rather than the consumer rules, apply. (Dkt. No. 70 at 10.) The AAA Class Arbitration rules, unlike the consumer rules, do not require the business to pay the arbitration costs and fees. See AAA Supplementary Rules for Class Arbitrations, https://www.adr.org/sites/default/files/Supplementary_Rules_for_Class_Arbitrations.pdf (last
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visited Apr. 22, 2024). But, Plaintiff himself pleads the applicability of the consumer rules. The consumer rules state in relevant part the parties have made the rules "part of their arbitration agreement whenever they have provided for arbitration by the" AAA and "the arbitration agreement is contained within a consumer agreement…that does not specify a particular set of rules." (Dkt. No. 71-4 at 10.) As explained above, the Arbitration Agreement does not specify a particular set of AAA rules. And, Plaintiff alleges the BAM Terms of Use is a "consumer contract." (Dkt. No. 36 at ¶ 185.) So, the AAA consumer rules apply. Further, Plaintiff alleges the Terms of Use include a class action waiver. (Dkt. No. 36 at ¶¶ 172, 180, 184, 185.) Having alleged the Terms of Use formed a consumer contract containing a class action waiver, Plaintiff cannot now argue the delegation clause is substantively unconscionability because a consumer would hesitate to initiate arbitration because the AAA class action rules do not require the business pay the fees. See Lim, 8 F.4th at 1003 (discussing the chilling effect of "a fee-shifting clause [that] puts [plaintiffs] who demand arbitration at risk of incurring greater costs than they would bear if they were to litigate their claims in federal court" rendering it "substantively unconscionable.") (internal citation omitted).
The Arbitration Agreement incorporates the AAA rules and under the AAA Consumer Rules Fee Schedule, the only fee Plaintiff will bear is the $205 filing fee. That fee is less than the filing fee to bring an action in court. As Plaintiff has not argued he cannot afford this fee, the requirement he do so is not substantively unconscionable.
4. Limitation on Liability Provision
At oral argument, Plaintiff argued for the first time the limitation on liability clause in the Terms of Use renders the agreement substantively unconscionable. (Dkt. No. 69 at 47-49.) Defendants insist this argument goes to the validity of the contract as a whole and not the delegation clause.
The limitation on liability clause in the Terms of Use appears five pages before the Arbitration Agreement and states:
Limitations Of Liability. IN NO EVENT SHALL ANY OF THE INDEMNIFIED PERSONS BE LIABLE TO YOU OR ANY OTHER PERSON OR ENTITY FOR ANY LOSS OF BUSINESS,
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PROFITS OR OPPORTUNITIES, OR ANY SPECIAL, PUNITIVE, AGGRAVATED, INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES. WHETHER ARISING OUT OF OR IN CONNECTION WITH OUR SITES, THE PLATFORM, YOUR ACCOUNT(S), THE SERVICES, THESE TERMS, THE TRADING RULES, THE DISCLOSURES, THE PRIVACY POLICY, AND/OR ANY AGREEMENT ENTERED INTO PURSUANT TO, OR IN CONNECTION WITH, THESE TERMS OR OTHERWISE. OUR LIABILITY, AND THE LIABILITY OF THE INDEMNIFIED PERSONS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE ACTUAL AMOUNT OF LOSS OR DAMAGE WHICH IS CAUSED DIRECTLY AND IS REASONABLY FORESEEABLE BY OUR BREACH OF THESE TERMS AND SHALL IN NO EVENT EXCEED $3,000.
(Dkt. No. 49-3 at 13-14.) Plaintiff contends Defendants will use this limitation on liability to "preclude Plaintiff from recovering the actual loss he suffered, approximately $405,322.78 (see ECF 28 at 8), and from recovering the attorneys' fees he is entitled to as a statutory remedy under his California claims. (Dkt. No. 70 at 12.)
"[A] party may use the same arguments to challenge both the delegation provision and arbitration agreement, so long as the party articulates why the argument invalidates each specific provision." Bielski, 87 F.4th at 1011. Plaintiff has not articulated how his arguments regarding the limitation on liability provision render the delegation clause unconscionable. Rather, Plaintiff's arguments all go to the unconscionability of the Terms of Use as a whole, and maybe alsothe Arbitration Agreement, and thus do not invalidate the arbitrator deciding arbitrability in the first instance pursuant to the delegation clause. See Falls v. Soulbound Studios, LLC, No.2:21cv-00961-SVW-JPR, 2021 WL 4295137, at *3 (C.D. Cal. July 6, 2021) (holding limitation of liability clause did not invalidate delegation clause).
The cases on which Plaintiff relies considered whether a limitation on liability clause rendered an arbitration agreement unconscionable, not a delegation clause. See Dennison v. Rosland Cap. LLC, 47 Cal. App. 5th 204, 210 (2020) (finding the agreement failed to specifically delegate the question of enforceability to the arbitrator and thus the Court would determine whether the arbitration provision in the contract was enforceable.); MacClelland, 609 F. Supp. 3d at 1032 ("no[] clear and unmistakable evidence that the parties agreed to arbitrate issues of arbitrability"); Newton v. Am. Debt Servs., Inc., 854 F. Supp. 2d 712, 722 (N.D. Cal. 2012) (no
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delegation clause). In Benitez v. GMRI, Inc., No. 22-CV-2031-L-JLB, 2023 WL 5490136, at *6 (S.D. Cal. Aug. 24, 2023), the court considered the unconscionability of the agreement as a whole and the arbitration clause concurrently, but did not address how particular provisions rendered the delegation clause in particular unconscionable.
To prevail on his challenge to the delegation clause based on the limitation on liability, Plaintiff must explain how the limitation on liability as applied to the delegation clause renders the delegation clause unconscionable. See Rent-A-Ctr., 561 U.S. at 74. He has not done so. The limitation on liability will not apply to arbitration proceedings deciding whether the dispute is arbitrable, including whether the Arbitration Agreement is unconscionable, as such proceedings do not determine liability. Plaintiff's invocation of Lim, 8 F.4th at 1004, is misplaced as there the arbitration agreement allowed the arbitrator to award fees to the prevailing party, including the defendant/employer, and such fees could include those incurred during the initial arbitrability proceedings. Plaintiff does not argue such similar provision exists here.
***
Plaintiff has shown only a low degree of procedural unconscionability. Such a showing is insufficient to render the delegation clause unconscionable without a high degree of substantive unconscionability—a showing that Plaintiff has not made.
IV. WHETHER SHRODER CAN INVOKE THE ARBITRATION AGREEMENT
BAM's CEO Brian Shroder is not a party to the Terms of Use, but seeks to invoke the Arbitration Agreement to compel arbitration as to the claims against him. Plaintiff brings three claims for control person liability under the Section 15 of the Securities Act, Section 20 of the Exchange Act, and the California Securities Act, Cal. Corp. Code 25504. (Dkt. No 36 at ¶¶ 211218, 265-270, 291-296.)
"[A] litigant who is not a party to an arbitration agreement may invoke arbitration under the FAA if the relevant state contract law allows the litigant to enforce the agreement." Kramer v. Toyota Motor Corp., 705 F.3d 1122, 1128 (9th Cir. 2013) (citing Arthur Andersen LLP v. Carlisle, 556 U.S. 624, 632 (2009). Defendants contend Mr. Shroder can invoke the arbitration clause under either an agency or equitable estoppel theory. California law governs this determination.
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Kramer, 705 F.3d at 1128.
A. Agency
In California, "an agent may enforce an arbitration agreement to which its principal is a party." Ronay Fam. Ltd. P'ship v. Tweed, 216 Cal. App. 4th 830, 838 (2013) (internal citations omitted); see also Dryer v. Los Angeles Rams, 40 Cal. 3d 406, 418 (1985) (holding defendants who were sued as agents of corporate defendant, a signatory to arbitration agreement, could invoke the arbitration clause as to claims arising out of arbitration agreement, even though they were not signatories to contract). Plaintiff alleges Mr. Shroder was "a control person over Binance U.S." and as "CEO of Binance U.S., Shroder had the power and authority to direct the management and activities of Binance U.S. and its employees, and to cause Binance U.S. to engage in the wrongful conduct complained of [in the complaint]." (Dkt. No 36 at ¶¶ 18, 214, 268.) Plaintiff seeks to hold Mr. Shroder jointly and severally liable for all of BAM's conduct and alleges he "knowingly and culpably participated in, and/or aided and abetted, Binance U.S.'s violations of the Securities Act alleged." (Id. at ¶¶ 217-218, 270, 293, 296.)
Plaintiff contends even if Mr. Shroder was BAM's agent, he cannot invoke the Arbitration Agreement because the claims against him are not related to the Terms of Use and do not require interpretation of the Terms of Use. In Britton v. Co-op Banking Grp., 4 F.3d 742, 748 (9th Cir. 1993), on which Plaintiff relies, the plaintiff's allegations against the officer director were "that he in some way attempted to defraud the investors into not pursuing their law suits [sic] against the persons who originally sold the securities under the contract." The Ninth Circuit held these "subsequent, independent acts of fraud, unrelated to any provision or interpretation of the contract" did not provide standing to compel arbitration regardless of his status as an agent. Id. at 748. 3 Not so here. Plaintiff's allegations as to Mr. Shroder are he directed Biance U.S.'s alleged violations of the Securities Act and among other things he is liable for damages "inclusive of
3 Plaintiff's reliance on the California Court of Appeals unpublished decision in Newstyle Cap. Inv. Mgmt. (Hong Kong) Ltd. v. Mobile Gaming Techs., Inc., No. A159013, 2021 WL 2176857 (Cal. Ct. App. May 28, 2021), is improper. See Olive v. Gen. Nutrition Centers, Inc., 30 Cal. App. 5th 804, 816 n. 6 (2018) ("California Rules of Court, rule 8.1115 prohibits the citation of unpublished California state opinions, with certain limited exceptions inapplicable here.").
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transaction fees" which necessarily implicates and relies on the Terms of Use. (Dkt. No. 36 at ¶ ¶ 215, 218; see also ¶ 268 ("Shroder purposefully exercised his power and influence to cause Binance U.S. to violate the Exchange Act as described herein, including by (1) operating unregistered exchanges and, in the course of operating such exchanges, entering unlawful contracts to sell UST and to receive transaction fees for sales of UST").)
Accordingly, Mr. Shroder may invoke the Arbitration Agreement to compel arbitration of the claims against him under an agency theory.
B. Equitable Estoppel
Alternatively, Mr. Shroder may compel arbitration under an equitable estoppel theory. "Generally, in the arbitration context, equitable estoppel allows a nonsignatory to a written agreement containing an arbitration clause to compel arbitration where a signatory to the written agreement must rely on the terms of that agreement in asserting its claims against the nonsignatory." GE Energy Power Conversion France SAS, Corp. v. Outokumpu Stainless USA, LLC, 140 S. Ct. 1637, 1644 (2020) (cleaned up). "Equitable estoppel precludes a party from claiming the benefits of a contract while simultaneously attempting to avoid the burdens that contract imposes." Kramer, 705 F.3d at 1128 (internal citation omitted).
Where a nonsignatory seeks to enforce an arbitration clause, the doctrine of equitable estoppel applies in two circumstances: (1) when a signatory must rely on the terms of the written agreement in asserting its claims against the nonsignatory or the claims are "intimately founded in and intertwined with" the underlying contract, and (2) when the signatory alleges substantially interdependent and concerted misconduct by the nonsignatory and another signatory and "the allegations of interdependent misconduct [are] founded in or intimately connected with the obligations of the underlying agreement."
Kramer, 705 F.3d at 1128-29 (cleaned up).
Plaintiff insists any allegations of interdependent misconduct are not based on any obligations under the Terms of Use and Plaintiff's securities claims against Shroeder are "fully viable without reference to the Terms." (Dkt. No. 48 at 30.) Not so. Equitable estoppel applies here for the same reasons as agency. Plaintiff's second claim for relief alleges "Shroder is jointly and severally liable for the violations of the Securities Act by Binance U.S. complained of herein
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and is liable to Plaintiff and the Class for damages, inclusive of transaction fees, as to each transaction in which any UST purchased in the Class Period was subsequently sold at a loss." (Dkt. 36 at ¶ 218.) Each such transaction occurred pursuant to the Terms of Use and the transaction fees are governed by the Terms of Use. Plaintiff's claim is not viable without reference to and consideration of the Terms of Use. The same is equally true for the other claims pled against Mr. Shroder. (Dkt. No. 36 at ¶¶ 268, 296.) Accordingly, equitable estoppel applies.
V. WHETHER THE COURT SHOULD STAY OR DISMISS
Defendants contend dismissal, rather than a stay, is appropriate if the Court grants their motion to compel.
"Section three of the FAA provides that, upon determination by a court that an issue or issues are referable to arbitration, the court, on application of a party, 'shall' stay the trial of the action pending arbitration (provided the stay applicant is not in default)." Forrest v. Spizzirri, 62 F.4th 1201, 1204 (9th Cir. 2023) (citing 9 U.S.C. § 3). The Ninth Circuit has carved out an exception to this plain language, holding "notwithstanding the language of [section three], a district court may either stay the action or dismiss it outright when, as here, the court determines that all of the claims raised in the action are subject to arbitration." Id. at 1204–05 (quoting Johnmohammadi v. Bloomingdale's, Inc., 755 F.3d 1072, 1074 (9th Cir. 2014) (alterations in original)). The Supreme Court recently granted certiorari regarding this issue. See Smith v. Spizzirri, ––– U.S. ––––, 144 S.Ct. 680, 217 L.Ed.2d 341 (2024); see Petition for a Writ of Certiorari, Spizzirri, 2024 WL 133822, 2023 WL 4108513, at *i. (Question presented: "Whether Section 3 of the FAA requires district courts to stay a lawsuit pending arbitration, or whether district courts have discretion to dismiss when all claims are subject to arbitration.").
The Court, in its discretion, stays this action pending arbitration.
CONCLUSION
For the reasons stated above, Defendants' motion to compel arbitration is GRANTED. This action is stayed pending arbitration. On or before December 1, 2024, the parties shall jointly provide the Court with a written update on the status of arbitration.
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IT IS SO ORDERED.
JACQUELINE SCOTT CORLEY
United States District Judge
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Dated: May 14, 2024
JACQUELINE SCOTT CORLEY
United States District Judge
Case 3:22-cv-03461-JSC Document 73 Filed 05/14/24 Page 26 of 26
This Order disposes of Docket No. 40.
|
Report for the 24th General Assembly FIG Working Week in Seoul, 6-11 May 2001
PRESIDENT'S REPORT
General
The past year has been a time for preparation for a new culture in the history of the Federation. The General Assembly in Prague decided in principle on the new governance model and statutes for a fully democratic FIG. This work has been followed by preparations of the statutes and internal rules both by the Task Force on the Future Governance of FIG and by the Bureau in discussions with member associations. I am happy to say that we are completing this long process that started with the establishment of the permanent office in Copenhagen two years ago.
Much work, however, is required before the new governance model is in full operation by January 2007. The FIG General Assembly in Seoul is in this respect most important because that is where we will discuss the principles of the future commission structure and the long-term strategies of the Federation during the breakout sessions. I am convinced that the new governance model will support the multicultural approach in the administration of the Federation. I want to encourage the member associations to express their views on increased FIG participation in the arrangements of congresses and working weeks which might allow FIG to generate additional, non-member income.
The Bureau has begun implementation of its work plan – with the help of member associations and the ten technical commissions. The highlights of the past year have been the successful working week in Prague in which I, because of family reasons, was unable to participate, and the several joint commission events. The very successful event organised for the Mediterranean region in Malta in September, hosted by several commissions, and the Commission 2-driven seminar in Rosario, Argentina were examples of the regional activities this Bureau has been anticipating and advocating.
This President's report takes the place of the former reports of the President, the Secretary General and the FIG office. Instead of a secretary general, a treasurer and three vice presidents we now have five vice presidents each having different responsibilities defined both by professional content and geographic region.
United Nations relations
FIG has for several years had close co-operation with the United Nations and several of its agencies, especially UNCHS (Habitat). FIG was invited to participate in the Urban 21
Conference in Berlin last July and the Experts Group meeting in Västerås, Sweden in November 2000 to prepare the draft Declaration on "Cities and other Human Settlements in the new Millennium" and review the implementation of the Habitat Agenda for the UN Special Session on Istanbul +5. Further, FIG has been represented at the 18 th Session of the Committee on Human Settlements and the 2 nd Prep Com on Istanbul + 5 in Nairobi this year and has taken a key part in preparations for the follow-up session itself. FIG will have an active role in New York in June together with partners from the Habitat Professionals Forum. We have also started our preparations for the FIG contribution of effort to the Rio + 10 process.
Last year FIG participated in the UN Regional Cartographic Conferences for Asia and the Pacific. This year we had a high profile at the UNRCC for the Americas in New York in January 2001. Both these meetings will result in new events and activities in which FIG will play an active role, to take place in the Mekong region and in Mexico in fall 2002.
The long-time co-operation with UN FAO is leading to a formal Memorandum of Understanding between FIG and FAO. I expect to have more information on this agreement to report to the General Assembly in Seoul.
Sister organisations
Co-operation between FIG and the other international professional surveying organisations has been developed on bilateral basis since IUSM was disbanded in 1999. The former members of IUSM still meet during the congresses once a year but the main effort is on bilateral co-operation that is more closely related to commission activities and provides more deliverables.
The first Memorandum of Understanding with sister organisations was signed with the International Society for Mine Surveying (ISM) in Krakow during the ISM Congress in September 2000. A similar Memorandum of Understanding has been prepared with the International Association of Geodesy (IAG) that will be adopted by both associations during the spring.
It is our objective to formalise good relations with the other professional associations like ICA, ISPRS and IHO with similar agreements in the near future. I would also like to see us develop closer contact to the international association of surveying students (IGSO).
Commissions and Task forces
The work of the Federation is dependant upon the ten technical commissions and their activities. I would again like to encourage member associations to nominate delegates to all commissions and to actively support their participation in that work. Delegates should be supported in attending seminars and meetings; if unable to attend, delegates should be encouraged to participate by correspondence, taking advantage of the many possibilities of modern communications technology.
The Bureau is pleased with the many activities of the commissions when organising their own events but especially with the increased number of joint events. Commissions 2, 3, 5 and 7 are examples of commissions that implement not only their own work plans and policies but also the FIG policy. A good example was the Commission 2 seminar organised in Rosario, Argentina in October representing the Federation and promoting FIG in South America and Latin America. Commission 3 is organising, jointly with UNCHS (Habitat) and the Institution of Surveyors of Kenya, a larger conference in Nairobi to be held in October this year. That will be the biggest FIG commission-driven event ever in Africa. This event is also a good example of the joint commission activities that have increased remarkably over the years. Another good example was the Symposium for the Mediterranean area organised in September 2000 in Malta to which five commissions took part under Commission 5 leadership while The Land Surveyors Society, Malta made the practical arrangements.
In Prague we established a new task force to review the role and structure of commissions, task forces and permanent institutions in FIG. I look forward to final proposals to encourage the commissions to take an even more active role in implementing the goals of the Federation. I would like to thank all the commissions for their good work during the past year.
I extend thanks also to the task forces that are making good progress on their special topics. I would especially like to recognize the work that we are doing in international standardisation, on supporting women and under-represented groups, and on work on mutual recognition. Mutual recognition was the subject of a joint expert seminar hold in November in Delft on Enhancing Professional Competence of Surveyors in Europe. This seminar was a cooperative effort of FIG and the European surveying association CLGE.
Finally I would like to mention the Task Force on Sustainable Development that has now completed its work. The final report, "FIG Agenda 21", is an important contribution from FIG to implement Agenda 21 and the Habitat Agenda in the surveying profession.
Membership
I am happy to report that the membership of FIG continues to grow. After adopting four new member associations last year we have this year an additional four new member applications (two from Armenia, one each from Finland and Puerto Rico).
I am also happy to say that in the beginning of the year academic members increased in numbers to over 30 from more than 20 nations. We also have new correspondents in Africa and have new affiliate members from Latin America supported by the US aid project "Hurricane Mitch Recovery Program".
Our sponsor membership – or corporate membership as it will be called in the future – continues to grow as well. During the past year Terra Map Server GmbH and Hansa
Luftbild Sensorik und Photogrammetric GmbH from Germany have joined FIG as corporate members. We expect to announce additional new corporate members at the meeting in Seoul. FIG depends on the support of the corporate members; and in return we offer certain advantages to corporate members.
Information delivery
The FIG information delivery system is now available to more people than ever. I often hear positive comments on the FIG web site that we attempt to keep up to date, that includes relevant information for surveyors. I would like everyone to use it more actively and promote it to members of the member associations. Through the web site we can reach people that we may never contact through traditional communication methods.
The Bureau will continue to publish the FIG Bulletin quarterly. There have been some technical problems that have caused delays but they are now solved. We would like to raise the quality of the Bulletin and study possibilities to print it in full colour while keeping its newsletter profile. The second Bulletin this year will be an experiment, including both the Bulletin and the Annual Review 2000.
In addition to FIG Agenda 21 the General Assembly must decide on another important FIG publication in Seoul: the publication on FIG guidelines on women's access to land. The document is based on the work by a Commission 7 working group supported by Swedesurvey and accomplished by Dr. Susan Nichols and Katalin Komjathy.
Visits
The Bureau intends to visit as many member associations as possible during its term of office. We will be unable to visit all countries, however, due to a shortened term of office while we convert to the new governance structure.
Following the Prague working week and prior to the Seoul meeting FIG Bureau members or FIG representatives will have visited members in Argentina, Chile, Colombia, Czech Republic, Denmark, El Salvador, Finland, France, Germany, Greece, Kenya, Korea, Ireland, Japan, Latvia, Lithuania, Malta, Morocco, the Netherlands, Poland, Puerto Rico, Slovak Republic, Sweden, Turkey, USA and Venezuela.
Although unable to attend the working week in Prague last year I helped the DdL celebrate their 125 th anniversary in Copenhagen in September after which I flew to Krakow, Poland, where I met with the Council of the International Society of Mine Surveying for signing of our new Memorandum of Understanding. I enjoyed taking part in the symposium the "Mediterranean Surveyor in the New Millennium" in Malta that same month. In December the Bureau visited Providence, Rhode Island in the US, where the American Congress on Surveying and Mapping held a joint conference with the American Society for Photogrammetry and Remote Sensing. Later in December Markku Villikka and I visited Japan; we were warmly greeted by representatives of the local surveying profession who arranged a tour for us of the Sokkia and Topcon facilities. From there we traveled to Seoul for a review of plans for WW2001.
I joined Stig Enemark, Ian Williamson and John Parker in New York in January for our participation in the UN Regional Cartographic Conference for the Americas. It is indeed gratifying to experience the respect afforded to FIG by agencies of the United Nations. At this meeting we made important contacts with leaders of the surveying profession in Latin and South America. In April I will make a tour of the Czech Republic, the Slovak Republic, Lithuania and Latvia where I am expecting to discovered that the surveying profession is growing ever stronger in those emerging economies. Once again it is clear that land and land markets are at the center of all economic activity and that the surveying profession is vital to the fair and efficient workings of those markets.
Permanent office
The FIG office will continue in its Copenhagen office into the forseeable future. The Bureau will sign a new contract with the Danish Association of Chartered Surveyors, DdL, in Seoul. This new contract will assure the continuation of the excellent service provided out of the DdL offices on the best of terms between FIG and DdL. I extend my warm thanks here to DdL and the Danish surveyors for their superb support of FIG.
The FIG Foundation has been moved from Australia to Denmark for administration. New statutes will be agreed and confirmed at the meeting of the Board of Directors in Seoul, to be confirmed by the General Assembly. The new format of the Foundation will offer better opportunities for FIG to serve its members in developing countries with greater efficiency, and to assist young surveyors in those countries.
Working Week 2001 and FIG Congress 2002
I look forward to a highly successful working week in Seoul. The professional programme will be larger than ever for an FIG Working Week and the organisers have prepared an event that will be remembered for many years. Working Week 2001 is approaching a congress in scope with more than 30 sessions and workshops and more than 150 presentations. As for the administrative meetings I expect interesting discussions and new ideas especially from the breakout sessions whose themes are the future strategy of FIG; review of the Commission structure; and cultures and languages in FIG to be prepared by the task force established for that purpose by the General Assembly last year in Prague.
Our next major event after Working Week 2001 will be the Congress in Washington, DC in April 2002. The arrangements are proceeding smoothly. The combination of highquality technical program and technical visits, biggest-ever surveying exhibition in the US, and grand social activities will provide a memorable 2002 Congress. As a result of the good relations FIG has with the United Nations and the commercial market we are able to announce the two keynote speakers for the opening ceremony: Dr. Anna K
Tibaijuka, Executive Director of UNCHS (Habitat) and Jack Dangermond, President and Founder of ESRI.
We look forward to see you all in Seoul in 2001 and in Washington in 2002.
Robert W. Foster President of FIG
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Standard Title Page: Report on a State Project
| Report No. VTRC 06-R8 | Report Date October 2005 | No. Pages 29 | Type Report: Final Period Covered: September 2004-October 2005 | Project No. 75851 |
|---|---|---|---|---|
| | | | | Contract No. |
| Title: Development of a Pavement Warranty Contract and Performance Specification for a Hot-Mix Asphalt Resurfacing Project | | | | Key Words: Warranty, pavement, falling weight deflectometer, interstate |
| Authors: Brian K. Diefenderfer and James W. Bryant | | | | |
| Performing Organization Name and Address: Virginia Transportation Research Council 530 Edgemont Road Charlottesville, VA 22903 | | | | |
| Sponsoring Agencies’ Name and Address: Virginia Department of Transportation 1401 E. Broad Street Richmond, VA 23219 | | | | |
Abstract:
As the primary focus of the Virginia Department of Transportation (VDOT) changes from highway construction to transportation maintenance, there is an increased need to extend the value derived from limited funding resources by increasing the service life of pavement rehabilitation treatments. In this regard, the development of a pavement warranty contract and a performance specification was considered in an effort to ensure that VDOT continues to deliver the highest quality pavement to the traveling public.
The concept of a pavement warranty allows for a department of transportation to specify either performance criteria or materials properties that are to be met at the time of project acceptance or throughout the warranty period. These criteria are to be met through the efforts of the contractor in performing periodic maintenance or rehabilitation if required. Reports from the literature suggest that implementing warranty specifications may improve the final quality of the pavement project, reduce the state inspection forces required, and shift some of the responsibility from the department to the contractor. Other reports suggest that disadvantages may include a potential for reduced competition and higher material bid prices during the initial stages of warranty implementation.
In an effort to help increase the overall quality of the roadway network and thus increase the service life of pavement resurfacings, VDOT sought to investigate the use of a warranty clause as part of an upcoming resurfacing contract. A performance-based warranty clause was developed in this pilot study to be included as part of the contract documents for a typical interstate resurfacing project. In this process, the bidding contractors would be given information about the condition of the pavement obtained from data collected through cores and the falling weight deflectometer and then the contractor would be responsible for developing the resurfacing pavement design that fulfilled the conditions of the warranty clause. The review of the submitted bids would be conducted in two stages where the technical merit of a proposal would be evaluated prior to the opening of a cost estimate.
Because of the extensive deterioration of the pavement, the warranty concept was not pursued for the pilot project. This report recommends that the warranty concept be applied in another location as part of a future study. Reports in the literature from other state departments of transportation indicate that although warranties have the potential to improve overall pavement performance and reduce life-cycle costs, they must be developed such that competition between contractors is not reduced.
FINAL REPORT
DEVELOPMENT OF A PAVEMENT WARRANTY CONTRACT AND PERFORMANCE SPECIFICATION FOR A HOT-MIX ASPHALT RESURFACING PROJECT
Brian K. Diefenderfer, Ph.D. Research Scientist Virginia Transportation Research Council
James W. Bryant, Jr., Ph.D., P.E. Program Manager Asset Management Division Virginia Department of Transportation
Virginia Transportation Research Council (A Cooperative Organization Sponsored Jointly by the Virginia Department of Transportation and the University of Virginia)
Charlottesville, Virginia
October 2005 VTRC 06-R8
DISCLAIMER
The contents of this report reflect the views of the authors, who are responsible for the facts and the accuracy of the data presented herein. The contents do not necessarily reflect the official views or policies of the Virginia Department of Transportation, the Commonwealth Transportation Board, or the Federal Highway Administration. This report does not constitute a standard, specification, or regulation.
Copyright 2005 by the Commonwealth of Virginia.
ABSTRACT
As the primary focus of the Virginia Department of Transportation (VDOT) changes from highway construction to transportation maintenance, there is an increased need to extend the value derived from limited funding resources by increasing the service life of pavement rehabilitation treatments. In this regard, the development of a pavement warranty contract and a performance specification was considered in an effort to ensure that VDOT continues to deliver the highest quality pavement to the traveling public.
The concept of a pavement warranty allows for a department of transportation to specify either performance criteria or materials properties that are to be met at the time of project acceptance or throughout the warranty period. These criteria are to be met through the efforts of the contractor in performing periodic maintenance or rehabilitation if required. Reports from the literature suggest that implementing warranty specifications may improve the final quality of the pavement project, reduce the state inspection forces required, and shift some of the responsibility from the department to the contractor. Other reports suggest that disadvantages may include a potential for reduced competition and higher material bid prices during the initial stages of warranty implementation.
In an effort to help increase the overall quality of the roadway network and thus increase the service life of pavement resurfacings, VDOT sought to investigate the use of a warranty clause as part of an upcoming resurfacing contract. A performance-based warranty clause was developed in this pilot study to be included as part of the contract documents for a typical interstate resurfacing project. In this process, the bidding contractors would be given information about the condition of the pavement obtained from data collected through cores and the falling weight deflectometer and then the contractor would be responsible for developing the resurfacing pavement design that fulfilled the conditions of the warranty clause. The review of the submitted bids would be conducted in two stages where the technical merit of a proposal would be evaluated prior to the opening of a cost estimate.
Because of the extensive deterioration of the pavement, the warranty concept was not pursued for the pilot project. This report recommends that the warranty concept be applied in another location as part of a future study. Reports in the literature from other state departments of transportation indicate that although warranties have the potential to improve overall pavement performance and reduce life-cycle costs, they must be developed such that competition between contractors is not reduced.
FINAL REPORT
DEVELOPMENT OF A PAVEMENT WARRANTY CONTRACT AND PERFORMANCE SPECIFICATION FOR A HOT-MIX ASPHALT RESURFACING PROJECT
Brian K. Diefenderfer, Ph.D. Research Scientist Virginia Transportation Research Council
James W. Bryant, Jr., Ph.D., P.E. Program Manager Asset Management Division Virginia Department of Transportation
INTRODUCTION
As the primary focus of the Virginia Department of Transportation (VDOT) changes from highway construction to transportation maintenance, there is an increased need to extend the value derived from limited funding resources by increasing the service life of pavement rehabilitation treatments. In this regard, the development of a pavement warranty was considered in an effort to ensure that VDOT continues to deliver the highest quality pavement to the traveling public.
The concept of a pavement warranty allows for a department of transportation (DOT) to specify either performance criteria or materials properties that are to be met at the time of project acceptance or throughout the warranty period. These criteria are to be met through the efforts of the contractor in performing periodic maintenance or rehabilitation if required. Prior to the passage of the Intermodal Surface Transportation Efficiency Act (ISTEA) in 1991, the use of warranties was prohibited on federal-aid highway contracts as warranty provisions could be used to fund maintenance costs indirectly (Federal Highway Administration [FHWA], 2000). If the project is found not to comply with the specified performance criteria or desired materials properties, the contractor may be responsible for either providing financial restitution to the DOT or providing corrective action at no additional cost.
The National Cooperative Highway Research Program's (NCHRP) Project 451, Guidelines for Warranty, Multi-Parameter, and Best Value Contracting, reported on various projects using pavement warranties and found that warranty contracting appears to improve the final quality of the paving project, may reduce the state inspection forces required, and may shift some responsibility from the DOT to the contractor (Anderson and Russell, 2001). Other literature suggests that disadvantages include a potential for reduced competition and higher material costs during the early stages of implementing a warranty contract (Johnson, 1999; Aschenbrener and DeDios, 2001; Bayraktar et al., 2004; Cui et al., 2004).
Current data from VDOT's Asset Management Division indicate that the typical hot-mix asphalt (HMA) surface layer placed on the interstate network remains in service for approximately 8 to 9 years. In an effort to help increase the overall quality of the roadway network and thus increase the service life of pavement resurfacings, VDOT sought to investigate the use of a warranty clause as part of an upcoming resurfacing contract. A performance-based warranty clause was developed during this pilot study to be included as part of the contract documents for a typical interstate resurfacing project. The bidding contractors would be given information about the existing condition of the pavement, obtained from data from cores and falling weight deflectometer (FWD) deflection testing. The contractor would then be responsible for developing the resurfacing pavement design that fulfilled the conditions of the warranty clause. The review of the submitted bids was to be conducted in two stages where the technical merit of a proposal would be evaluated prior to a cost estimate being opened.
It was anticipated that the use of a warranty specification on a pavement resurfacing project would allow VDOT to transfer some of the liability for the performance of the end product to the contractor. It was thought that this would occur as the contractor would also have a financial interest in delivering a product with a low life-cycle cost. It was also anticipated that the contractor might be encouraged to develop or implement innovative techniques or procedures that could improve the quality of the final product. Details of pavement warranty implementation have been recently published by state DOTs in New Mexico (May et al., 2003), Texas (Chen et al., 2002), Colorado (Aschenbrener and DeDios, 2001), Wisconsin (Krebs et al., 2001; Dukatz et al., 2001), Minnesota (Johnson, 1999), and Indiana (Haddock and Ward, 1998).
PURPOSE AND SCOPE
The purpose of this research project was to develop and study the implementation of a performance-based pavement warranty clause for use in a typical HMA pavement resurfacing project.
The subject of this pilot study was a portion of I-66 in Prince William County, Virginia, located between mile posts 36.48 to 40.33 and 36.72 to 40.58 for the eastbound and westbound directions, respectively. This section of interstate was constructed between 1975 and 1978 and is a four-lane divided limited access facility.
This study directly applies to projects where HMA overlays are placed on existing flexible pavements. However, the methodologies and concepts described herein may be applied to the maintenance of other infrastructure assets through the use of warranties.
METHODOLOGY
To achieve the purpose of this study, the following tasks were conducted:
1. Conduct a literature review.
2. Establish a Pavement Warranty Task Group.
3. Develop a performance specification and identify an appropriate warranty period.
4. Conduct a field investigation to determine the existing condition of the pavement where the overlay warranty specification was to be applied.
5. Design a typical rehabilitation treatment for the pavement.
6. Study the implementation of the warranty and performance specification.
Literature Review
A literature review was conducted to determine the experiences of other state DOTs with regard to the implementation of similar warranty specifications. Documents were identified using the Transportation Research Information Services (TRIS) website, the Transportation Libraries Catalog (TLCat) website, and the WebSPIRS Transport database.
Establishment of Pavement Warranty Task Group
A Pavement Warranty Task Group was established to oversee the warranty development and implementation processes. The task group consisted of members of VDOT's Asset Management Division, Administrative Services Division, District Pavement Engineers, and Materials Division and the Virginia Transportation Research Council (VTRC). The members were assembled based on their interest in the project and particular expertise. The members of the group are as follows:
* James Bryant, Program Manager, Asset Management Division
* Kevin Chisnell, District Pavement Management Technician, Staunton
* James Cline, Assistant Division Administrator for Infrastructure Management, Asset Management Division
* Tanveer Chowdhury, Pavement Management Engineer, Asset Management Division
* Betty Cousins, Transportation Engineer, Asset Management Division
* Jim Gray, District Infrastructure Manager, Northern Virginia
* Brian Diefenderfer, Research Scientist, VTRC
* Mike Hall, Assistant Division Administrator, Administrative Services Division
* Welford King, Transportation Technology Program Supervisor, Scheduling and Contracts Division
* Garry Jarrell, Transportation Engineer, Asset Management Division
* Deborah Mintiens, District Pavement Manager, Staunton
* Don Silies, Assistant Division Administrator, Scheduling and Contracts Division
* Albert Rollins, Interstate Maintenance Manager, Northern Virginia
* Clinton Simpson, Senior Transportation Engineer, Asset Management Division
* Thomas Tate, Pavement Program Engineer, Materials Division.
Development of Warranty Contract and Performance Specification
Through the efforts of the task group, a warranty contract and a performance specification for the pilot study were developed. The warranty outlined the contractual obligation of the contractor and the methods with which payment for the construction and maintenance periods would be made. The specification focused on future annual measurements of items such as cracking, rutting, number of potholes, raveling, rideability, and skid resistance. As part of the contractual language, the contractor would be required to maintain the pavement in a condition such that severity levels for each criterion would not be exceeded.
Warranty Period
The task group selected an appropriate warranty period based on information reported by other state DOTs in the literature, data regarding typical performance of HMA pavements in Virginia, and consultation with representatives from local contractors and the surety industry.
Field Investigation
As stated previously, the subject of this pilot study was a portion of I-66 in Prince William County, Virginia, located between mile posts 36.48 to 40.33 and 36.72 to 40.58 for the eastbound and westbound directions, respectively. This section of interstate was constructed between 1975 and 1978 and is a four-lane divided limited access facility. This location was chosen because of its placement on VDOT's upcoming paving schedule and the willingness of the local district representatives to participate in the study.
The field investigation consisted of pavement coring, subgrade boring, and structural analysis using VDOT's FWD. This testing was undertaken to aid in establishing the conditions at the project site and to compare the pavement cross-section with that found in VDOT's Highway Transportation Records and Inventory System (HTRIS) database. The existing pavement cross-section for the eastbound and westbound lanes from the HTRIS database is shown in Tables 1 and 2, respectively. Table 2 shows several instances where incomplete pavement cross-section data exist in the HTRIS database. This is a typical problem encountered with historical pavement data at some locations.
Four pavement cores and subgrade borings from the pavement were obtained in the eastbound and westbound lanes in April 2005 to establish the existing pavement design and material conditions. FWD deflection testing was performed in April and May 2005 for the eastbound and westbound lanes, respectively.
Table 1. Pavement Design for Eastbound I-66 (Right Lane) from HTRIS Database
| From | To | | | |
|---|---|---|---|---|
| 36.59 | 37.21 | SM-2Aa | 1.6 | 1995 |
| | | S-5a | 1.2 | 1975 |
| | | B-3b | 8 | 1975 |
| | | 21Ac | 6 | 1975 |
| | | Cement stabilized subgrade | 6 | 1975 |
| 37.84 | 38.46 | SM-2A | 1.6 | 1995 |
| | | S-5 | 1.2 | 1975 |
| | | B-3 | 8 | 1975 |
| | | 21A | 6 | 1975 |
| | | Cement stabilized subgrade | 6 | 1975 |
| 38.77 | 38.94 | SM-2A (modified) | 1.6 | 1995 |
| | | S-5 | 1.2 | 1975 |
| | | B-3 | 6 | 1975 |
| | | 21A | 6 | 1975 |
| | | Cement stabilized subgrade | 6 | 1975 |
| 39.53 | 40.01 | Experimental | 1.6 | 1995 |
| | | S-8/PFCd | 0.5 | 1982 |
| | | S-5 | 1.5 | 1975 |
| | | B-3 | 8 | 1975 |
| | | Aggregate base, Type 1e | 6 | 1975 |
| | | Cement stabilized subgrade | 6 | 1975 |
bHMA base mix.
aHMA surface mix.
cDense-graded aggregate base.
eLocally available aggregate material.
dPermeable friction course.
Table 2. Pavement Design for Westbound I-66 (Right Lane) from HTRIS Database
| Milepost | | Material | Thickness, in | Year Placed | Description |
|---|---|---|---|---|---|
| From | To | | | | |
| 39.15 | 43.5 | Latex emulsion, Type C | n/a | 1993 | |
| | | S-8/PFC | 0.7 | 1981 | 6.3% binder content |
| | | S-8/PFC | 0.8 | n/a | 6.5% binder content |
| | | S-5 | 1.5 | 1980 | 5.4% binder content |
| | | n/a | n/a | n/a | |
| 38.67 | 39.15 | Latex emulsion, Type C | n/a | 1993 | |
| | | S-8/PFC | 0.7 | 1982 | 6.5% binder content |
| | | S-5 | 1.5 | 1980 | 5.4% binder content |
| | | B-3 | 6.0 | 1980 | 4.5% binder content |
| | | Aggregate base, Type 21A | 6.0 | 1980 | |
| 36.8 | 38.67 | Latex emulsion, Type C | n/a | 1993 | |
| | | S-8/PFC | 0.7 | 1980 | 6.5% binder content |
| | | S-5 | 1.5 | 1979 | 5.8% binder content |
| | | B-3 | 8.0 | 1979 | 4.5% binder content |
| | | 21A | 6.0 | 1979 | |
| | | Type 1, Select material | 6.0 | 1979 | |
| | | Aggregate base, Size 20 | n/a | n/a | |
PFC = permeable friction course.
FWD deflection testing is a common tool used by many DOTs to conduct nondestructive evaluations of the structural capacity and in-situ condition of in-service pavements. The FWD operates through the application of an impulse load through an 11.8-in-diameter loading plate. Through use of a series of geophones located at known radial distances from the center of the loading plate, the deflection attributable to the applied load is measured. The resilient modulus of the subgrade and a combined resilient modulus of the different pavement layers (in addition to the elastic moduli) can be calculated through a process known as backcalculation provided that the overall pavement thickness is known or estimated accurately. The FWD used by VDOT is a Dynatest Model 8000. This FWD is trailer mounted and is towed behind a van that includes an onboard data storage and processing computer. Loads, ranging from 1,500 to 24,000 lb, may be applied to the pavement by dropping known weights (110, 220, 440, or 660 lb) from heights ranging from 0.8 to 15 in.
During this study, FWD deflection testing was conducted at four load levels (6,000, 9,000, 12,000, and 16,000 lb). At each load level, three deflection basins were collected. This process resulted in a total of 12 deflection basins collected at each testing location. Two seating drops at 12,000 lb preceded the recorded FWD measurement as specified by Virginia Test Method 68 (VDOT, 2001). Testing spacing was set at 75-ft intervals to ensure that a representative statistical sample of the pavement sections was tested. MODTAG software was used to process the FWD data. The structural capacity of the existing pavement was determined from the results of the FWD deflection testing, pavement coring, and subgrade boring.
Design of Rehabilitation Treatment for the Pavement
To anticipate what responses might be received from potential contractors, members of the Pavement Warranty Task Group analyzed the core and FWD data to determine the "most likely" design of a rehabilitation treatment for the pavement. This most likely scenario would form the basis for analyzing the technical merit of received proposals by potential contractors and give the local VDOT district an idea of the cost for the warranty project. These steps were followed during this process: determination of existing conditions, estimation of future traffic levels, and calculation of pavement structure to carry future traffic.
RESULTS AND DISCUSSION
Literature Review
Following passage of ISTEA in 1991, FHWA created the Special Experimental Project No. 14 in an effort to investigate innovative contracting methods that could stretch the impact of funding and to promote the acceleration of highway construction and maintenance activities (FHWA, 2004). As a result, the following alternatives to traditional contract bidding were identified: design-build, multi-parameter bidding (cost plus time), lane rental, and warranty. The purpose of identifying these alternatives was to assist the state DOTs with developing choices that could minimize construction time, reduce life-cycle costs, and encourage innovative
construction techniques/materials. Although warranty specifications were identified as a potentially beneficial method to improve the highway and construction maintenance activities, a major roadblock to successful implementation is the continued use of traditional prescriptive specifications by DOTs. Ultimately, specifications containing warranty language could stipulate the desired performance of the end product and relieve the DOT of constant quality assurance and inspection duties during construction.
Prescriptive specifications dictate to the contractor the type of materials to be used and the method in which they must be used. These prescriptive specifications also inherently assign any liability for premature failure or deterioration as a result of using the specified materials according to the specified methods to the DOTs. In contrast, warranty specifications differ from prescriptive specifications in that the contract is developed around the desired end product rather than the methods used to produce the end product. Warranty specifications may rely on quantitative measures of performance to indicate initial acceptance and functionality throughout the life of a particular construction or maintenance project. Examples of performance measures are ride quality, skid resistance, and rut/cracking measurements. Often, the limiting value of these performance measures varies during the course of the warranty period to account for expected pavement deterioration or unforeseen sudden increases in traffic levels.
Aschenbrener and DeDios (2001) defined four types of warranty specifications: prepaid maintenance warranties, workmanship warranties, materials and workmanship warranties, and performance warranties.
1. The prepaid maintenance warranty is a typical arrangement where the owner specifies the design, materials to be used, and prescriptive workmanship process. The contractors' responsibilities include the development of an estimate to maintain the pavement in accordance with the owner's construction requirements.
2. A workmanship warranty requires the contractor to correct any future defects that might arise from poor workmanship. As the owner is responsible for the design, the contractor does not carry any responsibility for defects that are a result of an inadequate design.
3. A materials and workmanship warranty requires the contractor to correct any future defects that result of either defective materials or poor workmanship. The owner is responsible for any future defects related to an inadequate design.
4. A performance warranty assigns full responsibility for the pavement performance to the contractor during the warranty period as the contractor prepares the design.
A potential fifth type that could be included is a partial performance warranty wherein the contractor is responsible for the pavement performance attributable to materials, workmanship, and design but the owner still retains control over the actual design.
Details of pavement warranty implementation have been published by many state DOTs including New Mexico (May et al., 2003), Texas (Chen et al., 2002), Colorado (Aschenbrener and DeDios, 2001), Wisconsin (Krebs et al., 2001; Dukatz et al., 2001), Minnesota (Johnson, 1999), and Indiana (Haddock and Ward, 1998). These projects represent some of the first efforts by state DOTs to implement warranties on newly built or rehabilitated roadways. Although the warranty concept is widely used in Europe, it is still regarded as innovative in the United States (Anderson and Russell, 2001). Initial pavement warranty efforts in the United States resulted from a desire to achieve longer lasting pavements by requiring contractors to warrant their work under a partial performance warranty for up to 5 years. However, some states have implemented longer warranty periods prior to studying their effectiveness.
From a paving contractor's perspective, a major drawback to these initial warranty projects was that the contractors had limited input in the design and performance specifications processes and thus were required to accept responsibility for subsequent failures attributable to the roadway design. As a result, the material bid prices for HMA on early warranty projects increased by 15% to 25% per ton (Bayraktar et al., 2004; R. Battey, personal communication, 2005). The increase in bid prices also reflected great uncertainty during early projects, as these were some of the first pavement warranty projects attempted in the United States. It is anticipated that as more warranty contracts are let, this uncertainty will be reduced as the industry becomes more comfortable with the warranty process and the DOTs have a better understanding of developing performance-based specifications.
To date, VDOT's only experience with a warranty specification for pavements was during the new construction of a portion of Route 288, west of Richmond. A private organization was given the freedom to design fully the pavement on a portion of the roadway to meet specific performance criteria for 20 years, a full performance warranty. As part of this contract, the private organization was even allowed to develop the performance specifications upon which the warranty was based. The benefits and/or consequences of this project are still under study by VDOT.
The difference in costs between warranted and non-warranted projects varies depending on the report cited, the duration of the analysis, and the methods in which projects are selected for implementation of the warranty process. Krebs et al. (2001) reviewed the cost of warranted pavement projects versus non-warranted pavement projects. They reported that the warranted projects constructed between 1995 and 1999 actually cost approximately 14% less than nonwarranted pavements constructed at the same time in terms of life-cycle costs. Aschenbrener and DeDios (2001) reported that the differences in initial bid and maintenance costs were negligible after 3 years (if the cost of the weigh-in-motion scale, required by the Colorado DOT on warranted projects within this study, was disregarded). The Ohio DOT (2000) reported an increase in the material bid price of 8.5% for HMA projects involving 5-year warranties. As the result of a survey where state DOTs responded to a questionnaire, Bayraktar et al. (2004) reported that although initial bid prices increased 0% to 15%, changes in maintenance and project life-cycle costs were expected to be minimal.
Krebs et al. (2001) also performed an analysis based on distress and International Roughness Index surveys of 18 warranted pavement projects versus non-warranted pavement projects and found the warranted pavements to perform better initially and after 5 years. The warranted projects were approximately 30% smoother after construction than were the nonwarranted projects, and the increase in roughness after 5 years for warranted pavements was approximately 16% versus approximately 30% for non-warranted pavements.
Krebs et al. (2001) attributed the reduced cost of warranted pavements to be due primarily to the selection process that the Wisconsin DOT uses to select projects to become eligible for inclusion in the warranty process. Included among the qualifications were verification of adequate subgrade support and inclusion of an accurate subgrade strength value in the design process. Although these steps may have biased the results in favor of the warranty, these are concepts that ideally should already be a part of any overlay design process used by a DOT (warranty or non-warranty). However, most overlay designs are not given such detailed analysis and the same typical rehabilitation treatment is often applied across many different conditions.
Warranty Contract and Performance Specification
The warranty contract developed in this project consisted of two phases: a resurfacing action and a maintenance period. The maintenance period was to begin on the date of the final acceptance of the resurfacing and extend for a period of 9 years. The project was to be bid at a lump sum price that included the cost of the resurfacing and maintenance. The contractor would be paid 80% of the lump sum upon acceptance and one-ninth of the remaining 20% annually provided that the pavement complied with the performance specification. Following discussions with representatives from local contractors and the surety industry, VDOT decided that the contractor would be required to obtain a performance bond for the initial 80% of the lump sum contract price to cover the actual resurfacing and annually renewable 1-year bonds, each in the amount of the remaining 20% of the lump sum contract price to cover the maintenance period. It was thought that this significantly reduced the risk to the surety and, therefore, the cost to the contractor.
The performance specification developed during this study defined allowable limits of deterioration on items such as cracking, rutting, number of potholes, raveling, rideability, and skid resistance that would be measured on an annual basis. As part of the contractual language, the contractor was required to maintain the pavement in a condition such that the severity level for each criterion would not be exceeded. The developed HMA overlay performance specification is provided in Appendix A.
Warranty Period
The previously cited reports by other state DOTs indicated warranty periods ranging from 2 to 20 years. In general, as the warranty period increases, so does the material bid price. This is a typical result of increased uncertainty on behalf of the contractor and surety (Johnson, 1999; Cui et al., 2004). As with any construction project, the contractor must secure a performance bond that assures that the contractor will perform the work within the contract. As a warranty involves a long-term contractual obligation, the surety assumes a greater risk with an increase in warranty period and passes along this risk in terms of cost to secure the bond to the contractor. Aschenbrener and DeDios (2001) stated that although the most cost-effective duration of the
warranty period is still unclear, the warranty should be enforced long enough to ensure the desired performance over the service life of the project but not so long as to drive up the contract price artificially.
A warranty period of 9 years was set for this pilot study following an analysis of the annual visual condition survey data collected by VDOT's Asset Management Division. This information showed that the surface layer of flexible pavements on Virginia's interstate system had an average service life of between 8 and 9 years before resurfacing was required (based on a visual condition index rating). After discussion within the Pavement Warranty Task Group, it was decided to set the warranty period at 9 years for this pilot study. Selection of this time period was thought to be the most cost-effective means for improving the average (by reducing the number of premature failures) while not greatly increasing the risk to the contractor.
Field Tests
Field testing, consisting of pavement coring, subgrade boring, and FWD deflection testing, was performed between April and May 2005.
Pavement Coring and Subgrade Boring
The results of the pavement coring and subgrade boring are presented in Tables 3 and 4 for the eastbound and westbound directions of I-66, respectively. The results are given as a location, description, and depth from the surface for each material collected; any remarks based on the condition of the material found; and the results of standard penetration tests (SPT). The SPT results indicate the penetration resistance of the subgrade material by recording the number of blows required to drive the sample collector a distance of 6 in at depths of between 1 and 5.5 ft. Pavement coring and subgrade test borings were performed in the right-hand lane. The data show that stripping of the HMA was observed within the surface layer in two of the four cores from the eastbound direction and in three of the four cores from the westbound direction. In one core from the westbound direction, stripping was also noted at a depth of approximately 5 in. The SPT results generally indicated a stronger upper subgrade material (depths ranging from 1.5 to 3.5 ft) lying above weaker subgrade material (depths from 3.5 to 5.5 ft) in both directions. The average SPT values of the subgrade at depths from 1.5 to 3.5 ft were 11.3 and 10.1 for the eastbound and westbound directions, respectively. The average SPT values for the subgrade at depths of 3.5 to 5.5 ft were 8.3 and 6.9 for the eastbound and westbound directions, respectively.
The pavement structure in each direction can be separated into two sections: an eastern and a western section. The eastern section, including data from mile posts 37.0 and 38.0, consisted of approximately 9 to 11 in of HMA over approximately 8 to 10 in of crushed aggregate. The western section, including data from mile posts 38.9 and 39.8, consisted of approximately 10 to 12 in of HMA over approximately 3 to 5 in of crushed aggregate. Similar subgrade material, red-brown sandy silt with traces of clay, was found across the entire project.
Table 3. Existing Pavement Structure for Eastbound I-66 (Right Lane) from Core Data
| Location, MP | Field Description | Depth, ft | Remarks | |
|---|---|---|---|---|
| | | | | Depth, ft |
| 37.0 | 10.25-in HMA | 0.00- 0.85 | 2.25-in HMA surface mix (1 layer) 8.00-in HMA base/intermediate mix (2 layers) | 1.52- 3.52 3.52- 5.52 |
| | 9.25-in crushed aggregate | 0.85- 1.62 | | |
| | Red-brown, micaceous f-m sandy SILT with f-c weathered rock fragments, trace clay | 1.62- | | |
| 38.0 | 10.75-in HMA | 0.00- 0.90 | 2.38-in HMA surface mix (1 layer), mildly stripped 8.37-in HMA base/intermediate mix (2 layers), upper layer contains significant voids | 1.69- 3.69 3.69- 5.69 |
| | 9.50-in crushed aggregate | 0.90- 1.69 | | |
| | Red-brown, micaceous f-m sandy SILT with f-c weathered rock fragments, trace clay | 1.69- | | |
| 38.9 | 11.50-in HMA | 0.00- 0.96 | 3.25-in HMA surface mix (2 layers) 8.25-in HMA intermediate/base mix (2 layers) | 1.24- 3.24 3.24- 5.24 |
| | 3.31-in crushed aggregate | 0.96- 1.24 | | |
| | Red-brown, micaceous f-m sandy SILT with f-c weathered rock fragments, trace clay | 1.24- | | |
| 39.8 | 10.75-in HMA | 0.00- 0.90 | 2.75-in HMA surface mix (2 layers), lower layer moderately stripped 8.00-in HMA intermediate/fine base mix (2 layers) | 1.16- 3.16 3.16- 5.16 |
| | 3.06-in crushed aggregate | 0.90- 1.16 | | |
| | Red-brown, micaceous f-m sandy SILT with f-c weathered rock fragments, trace clay | 1.16- | | |
f-m = fine-to-medium; f-c = fine-to-coarse.
FWD Deflection Testing
The results of the FWD deflection testing are summarized in Table 5. The average, standard deviation, and coefficient of variation of the backcalculated subgrade resilient modulus; effective structural number; deflection under the FWD load plate; and deflection at a distance of 72 in from the load plate for the eastbound and the westbound directions of I-66 are shown.
Table 5 shows that the summarized subgrade resilient modulus for the eastbound and westbound directions of I-66 is similar in terms of both average magnitude and variability. Table 5 also shows that the westbound lanes have a higher structural capacity than do the eastbound lanes. The average deflection under the load plate is higher for the eastbound direction. However, the average deflection at a distance of 72 in from the load plate is higher for the westbound direction. Because of the high coefficient of variation, there may be no statistical difference between the deflection measurements of the eastbound and westbound directions.
Table 4. Existing Pavement Structure for Westbound I-66 (Right Lane) from Core Data
| Location, MP | Field Description | Depth, ft | Remarks | |
|---|---|---|---|---|
| | | | | Depth, ft |
| 39.8 | 10.50-in HMA | 0.00- 0.88 | 0.25-in thin surface overlay 2.25-in HMA surface mix (1 layer), top stripped 8.00-in HMA base/intermediate mix (2 layers) | 1.30- 3.30 3.30- 5.30 |
| | 5.12-in crushed aggregate | 0.88- 1.30 | | |
| | Red-brown, micaceous f-m sandy SILT with f-c weathered rock fragments, trace clay | 1.30- 5.30 | | |
| 38.9 | 10.25-in HMA | 0.00- 0.85 | 0.25-in thin surface overlay 2.25-in HMA surface mix (1 layer), top stripped 7.75-in HMA base/intermediate mix (2 layers) | 1.27- 3.27 3.27- 5.27 |
| | 4.94-in crushed aggregate | 0.85- 1.27 | | |
| | Red-brown, micaceous f-m sandy SILT with f-c weathered rock fragments, trace clay | 1.27- 5.27 | | |
| 38.0 | 9.00-in HMA | 0.00- 0.75 | 0.38-in thin surface overlay 1.75-in HMA surface mix (1 layer), moderately stripped 7.75-in HMA base/intermediate mix (2 layers), interface between layers moderately stripped | 1.19- 3.49 3.49- 5.49 |
| | 8.88-in crushed aggregate | 0.75- 1.49 | | |
| | Red-brown, micaceous f-m sandy SILT with f-c weathered rock fragments, trace clay | 1.49- 5.49 | | |
| 37.0 | 10.25-in HMA | 0.00- 0.85 | 0.20-in thin surface overlay 2.00-in HMA surface mix (1 layer) 8.05-in HMA base/intermediate mix (2 layers) | 1.52- 3.52 3.52- 5.52 |
| | 8.00-in crushed aggregate | 0.85- 1.52 | | |
| | Red-brown, micaceous f-m sandy SILT with f-c weathered rock fragments, trace clay | 1.52- 5.52 | | |
f-m = fine-to-medium; f-c = fine-to-coarse.
Table 5. FWD Results Showing Subgrade Resilient Modulus, Effective Structural Number, Deflection Under Load Plate, and Deflection at Distance of 72 in for Eastbound and Westbound I-66
| Statistic | Backcalculated Subgrade Resilient Modulus, psi | | Effective Structural Number | | Deflection Under Load Plate, mils | | |
|---|---|---|---|---|---|---|---|
| | EB | WB | EB | WB | EB | WB | EB |
| Average | 32,330 | 33,098 | 3.66 | 4.60 | 14.1 | 10.7 | 1.1 |
| Standard Deviation | 16,484 | 17,305 | 0.4 | 0.4 | 7.4 | 4.5 | 0.9 |
EB = eastbound; WB = westbound.
Additional details from the FWD testing are provided in Appendix B. Figure B1 presents the backcalculated subgrade resilient modulus for each direction by project mile post. This figure shows the subgrade conditions to be similar for each direction. It is also shown in Figure B1 that the subgrade is weak in both directions between mile posts 36.5 and 37.0. Figure B2 shows the effective pavement structure number as calculated from the FWD testing. The number is an empirical quantification of the structural capacity of the pavement. Figure B2 shows that the structural capacity of the westbound direction was higher than that of the eastbound direction.
Figures B3 and B4 present the deflection of the eastbound and westbound directions, respectively, as measured by the FWD during field testing. A lower deflection indicates a stronger pavement. The deflection from two sensors, D1 and D9, is shown in each figure. Sensor D1 is located at the load plate and is an indicator of the strength of all pavement layers. Sensor D9 is located at a distance of 72 in from the center of the load plate and is an indicator of the strength of the subgrade material. Figures B3 and B4 show a higher deflection between mile posts 36.5 and 37.0 than for the remainder of the project. In fact, the average deflection for both sensors in both directions between mile posts 36.5 and 37.0 is approximately twice the average deflection of the remainder of the project.
Design of Rehabilitation Treatment
To anticipate what responses might be received from potential contractors, members of the Pavement Warranty Task Group analyzed the data from the field investigation to determine the "most likely" design of a rehabilitation treatment for the pavement. The following steps were followed during this process: determination of existing conditions, estimation of future traffic levels, and calculation of pavement structure to carry future traffic.
The existing condition of the pavement was noted through a cursory visual survey, from the collection of pavement cores, and from analysis of the FWD deflection testing. The visual survey revealed that the condition of the eastbound lanes was worse than that of the westbound lanes. In each direction, fatigue cracking was evident at the surface of the pavement. In addition, pumping of fines from the subgrade was evident at the pavement surface in portions of the eastbound lanes. The collected pavement cores showed that the most recently applied HMA plant mix layer had stripped in five of the eight cores. Thus, it was suggested that any future rehabilitation would need to include milling of a minimum of 3 in of existing pavement to remove stripped material. It was also suggested that given the 9-year warranty period and the goal to keep existing traffic lanes open as much as possible, the likely rehabilitation effort would be to place an HMA overlay.
The anticipated future traffic was calculated in terms of the number of equivalent single axle loads (ESALs) using DarWin pavement design software and inputs from existing VDOT data. Based upon data from VDOT's Traffic Division, the ESALs the rehabilitation design would be required to carry was calculated using a current AADT of 38,000 with 10% trucks and a growth rate of 4%. The DarWin software calculated that the rehabilitation design would need to be capable of accommodating slightly more than 8.46 million ESALs (using a truck factor of
1.28) for the 9-year warranty period. Other assumptions, such as serviceability, percent traffic in the design lane, etc., were made following VDOT's Guidelines for 1993 AASHTO Pavement Design (VDOT, 2003).
The results of the FWD testing showed the average existing structural capacity of the pavement to vary depending on the direction; therefore, the analysis of the most likely rehabilitation design was conducted separately for each direction. The required structural number for the overlay was calculated based on future ESALs, existing subgrade resilient modulus, and current structure number of the pavement. The subgrade resilient modulus for each direction was calculated as 33% of the average backcalculated subgrade resilient modulus (Mr) from the FWD testing. Part III, Chapter 5.3.4, of the American Association of State Highway and Transportation Officials' (AASHTO) Guide for Design of Pavement Structures (AASHTO, 1993) states that this correction is necessary to make the backcalculated subgrade Mr value consistent with the subgrade from the AASHO Road Test (Highway Research Board, 1962). Following this methodology, the design subgrade Mr of the eastbound and westbound directions was calculated to be 10,600 and 10,900 psi, respectively. Based on this information, the structural numbers for future traffic were calculated as 5.15 and 5.10 for the eastbound and westbound directions, respectively. Therefore, the overlay structural numbers for the eastbound and westbound directions were 1.49 and 0.5, respectively.
The thickness of the pavement overlay was calculated based on the estimated structural coefficients of the existing pavement layers and the required design overlay structural number. The estimated structural coefficients for the existing pavement layers were based on the AASHTO guide (AASHTO, 1993). This guide provides typical coefficient values depending on the severity of deterioration at the pavement surface. Coefficient values for the eastbound and westbound directions were modified until the sum of the coefficient multiplied by the thickness for each layer was equal to the structure number of the existing pavement as determined by the FWD testing. This information is shown in Table 6.
Table 6. Estimated Structural Coefficients for Calculating Overlay Design Thickness
| | Eastbound | | | Westbound | | |
|---|---|---|---|---|---|---|
| | Average Existing Thickness, in (A) | Estimated Layer Coefficient (B) | = A x B | Average Existing Thickness, in (A) | Estimated Layer Coefficient (B) | = A x B |
| HMA | 10.5 | 0.26 | 2.73 | 9.50 | 0.40 | 3.80 |
| Aggregate | 6.0 | 0.08 | 0.48 | 6.00 | 0.12 | 0.72 |
| Treated subgrade | 6.0 | 0.08 | 0.48 | - | - | - |
| Estimated structure number | | | 3.69 | | | 4.52 |
| Average structure number from FWD testing | | | 3.66 | | | 4.60 |
Based on the assumptions, shown in Table 6, the thickness of a new overlay was determined by subtracting the value of the layer coefficient of the existing HMA layers multiplied by the depth of the milled pavement from the existing structural number and then adding the value of the layer coefficient of the new overlay multiplied by the new overlay thickness. For typical HMA surface mixes, VDOT uses a structural layer coefficient of 0.44. The thickness of the new overlay was adjusted until the structural number of the rehabilitated pavement (SNexisting – SNmilled + SNoverlay) was equal to the required structural number as calculated by the DarWin software for the analysis period (5.15 and 5.10 for the eastbound and westbound directions, respectively).
Table 7 shows the resulting pavement design based on the methods described. The overlay thickness for the eastbound and westbound directions was calculated as 6.5 and 5.0 in, respectively. The existing HMA thickness for the eastbound and westbound directions, shown in Table 7, is based on a milled thickness of 5.5 and 4.0 in, respectively. There is a resultant increase in surface elevation of 1.0 in in each direction.
Prior to the analysis, the local VDOT district representatives had estimated that the scope of the project should consist of a 2-in milling operation followed by a 2-in HMA overlay, a decision that was not based on the analysis of the pavement structural capacity. This operation would not result in any increase in the elevation of the pavement surface. This was considered critical as the clearance to one overhead structure was already substandard and increasing the surface elevation by as little as 1 in would result in two more structures having a substandard overhead clearance. Calculations using the DarWin software showed this rehabilitation option to be associated with an expected service life of approximately 4.5 years.
Following the same analysis, a rehabilitation design that would meet the needs for future traffic (9 years) while not increasing the pavement surface elevation was found to be feasible in the eastbound direction using a combination of an 8.0-in milled thickness and an 8.0-in overlay; the resultant structure number for this design was calculated as 5.13. However, in the westbound direction, the maximum structure that could be achieved (without manipulating the aggregate base) was calculated to consist of a 9.5-in milled thickness (accomplished by milling all the existing HMA material) and a 9.5-in overlay, resulting in a structure number of 4.9. Analysis
Table 7. Rehabilitation Pavement Design for Eastbound and Westbound I-66
| | Eastbound | | | | |
|---|---|---|---|---|---|
| | Thickness, in (A) | Layer Coefficient (B) | = A x B | Thickness, in (A) | Layer Coefficient (B) |
| Overlay HMA | 6.5 | 0.44 | 2.86 | 5.0 | 0.44 |
| Existing HMA | 5.0 | 0.26 | 1.30 | 5.5 | 0.40 |
| Aggregate base | 6.0 | 0.08 | 0.48 | 6.00 | 0.12 |
| Treated subgrade | 6.0 | 0.08 | 0.48 | - | - |
| Rehabilitated structure number | | | 5.12 | | |
| Required structure number from DarWin analysis | | | 5.15 | | |
showed that a structure number of 4.9 would be adequate for the pavement to carry the traffic for approximately 1.8 years less than a design based on the required structure number. It was assumed by the researchers that neither of these options would be feasible given the deep milling required and the desire to maintain traffic in this vital commuting corridor.
Warranty Implementation
Given the large difference in scope between the expected design of a 2-in mill and overlay and the calculated design for the 9-year warranty period, the researchers and other selected members of the Pavement Warranty Task Group recommended not pursuing implementation of the warranty concept at the location of this pilot study. This decision was based on the restricted overhead clearances and the fact that the contractor would not be allowed to apply a resurfacing treatment that increased the surface elevation. It is the intent of the Pavement Warranty Task Group to apply the pavement warranty concept at another location following a review of VDOT's upcoming pavement overlay schedule (including review of any associated overhead obstructions). Ideally, the warranty concept should be employed on a trial basis across several projects that represent a range of existing conditions rather than on one site, as was attempted within this study.
If the implementation of this concept moves forward again in the future, a materials and workmanship warranty should be considered in place of a performance warranty. The materials and workmanship warranty may be a better choice for warranty implementation in Virginia in that the DOT is still responsible for developing the design and the contractor is not held responsible if the design is found to be insufficient. This is a similar relationship as with the current practice; however, the contractor is typically held to a higher standard of quality control. Under a materials and workmanship warranty, contractors would be required to meet certain standards for items over which they have direct control; an example is a percent within limits specification on gradation, binder content, thickness, air void content, and density.
CONCLUSIONS
* The use of core sampling and FWD deflection testing allowed for a thorough analysis of the existing condition of the pavement. This underscores the need for advanced nondestructive testing of pavements in order to design an effective rehabilitation treatment.
* Literature published by other state DOTs shows that implementation of pavement warranties on selected projects has the potential to improve quality and increase the service life of new and rehabilitated pavements. However, the specifications governing the warranty must be written such that the contractor is not so restricted that competition is stifled and benefits are gained by large contractors that are better able to absorb risk.
RECOMMENDATIONS
1. VDOT should pursue another pavement warranty pilot study for HMA overlays on multiple projects having varying deterioration conditions.
2. In future studies of pavement warranties, VDOT should consider a materials and workmanship warranty and include development of a set of criteria based on existing levels of accepted quality and typical rates of pavement deterioration. Using this type of warranty specification, a shorter warranty period may be employed that reduces costs and risks to all parties.
3. Sites for future pavement warranty pilot studies should be considered based on potential obstacles (such as substandard overhead clearances) that might negatively impact the ability to implement a cost-effective rehabilitation design.
4. VTRC and VDOT's Materials Division should work together to develop a set of materials and workmanship specifications for HMA paving that encourages the delivery of projects having high quality (such as percent within limits specifications). This may achieve the same desired outcome of the warranty process without the need for future performance monitoring.
5. VTRC and VDOT's Materials Division should work together to develop a mechanistic-based overlay design methodology using existing software for use prior to the acceptance of the Mechanistic-Empirical Pavement Design Guide (ARA, Inc., 2004). This would allow for a realistic comparison among multiple pavement overlay designs.
6. In future field testing involving core sampling and FWD testing, VDOT should consider conducting the FWD testing prior to core sampling. This might be more beneficial to the pavement designer. As the FWD deflection is measured, rather than calculated based on existing pavement thickness, areas having high deflection can be identified such that cores may be collected from these locations. This method may offer additional input regarding the reasons for pavement failure through the collection of information at specific locations of interest rather than the use of a standard spacing.
7. VTRC and VDOT's Materials Division should work together to implement the use of nondestructive methods to determine both the existing thickness (e.g., ground-penetrating radar) and structural condition of the pavement (e.g., FWD). Jointly employing these technologies is already current practice in other leading state DOTs.
COSTS AND BENEFITS ASSESSMENT
According to the literature review, employing pavement warranties appears to be beneficial, although few reports are able to quantify the benefit. Aschenbrener and DeDios (2001) reported no difference in initial bid or maintenance costs after 3 years. However, Anderson and Russel (2001) stated that warranties have the potential to improve the long-term performance of pavements. Krebs et al. (2001) reported a life-cycle cost savings of
approximately 14% after 5 years. Bayraktar et al. (2004) summarized a survey of state DOTs and industry representatives by stating that warranty contracts slightly increase the quality of projects as compared to non-warranted projects; however, the usage of warranties was reported to be worthwhile if used as an assurance against premature failures rather than as a way of achieving innovative practices.
In 2002 and 2003, VDOT spent an average of $120 million per year on pavement resurfacing. Assuming that use of the warranty concept in Virginia can effect a similar reduction in life-cycle costs as reported by Krebs et al. (2001), approximately 14%, the annual savings would be approximately $17 million per year. A similar percentage increase in the service life of HMA pavement overlays would increase the average life of the typical pavement surface by nearly 1 year.
ACKNOWLEDGMENTS
The authors acknowledge the comments provide by the technical review panel members: Bill Maupin, Kevin McGhee, and Tom Tate. The authors also appreciate the reviews and comments provided by Stacey Diefenderfer and Khaled Galal of VTRC. The authors acknowledge Randy Combs, Ed Deasy, and Linda Evans of VTRC for their assistance with the graphics and the editorial process.
REFERENCES
American Association of State Highway and Transportation Officials. (1993). Guide for Design of Pavement Structures. Washington, DC.
Anderson, S.D., and Russel, J.S. (2001). Guidelines for Warranty, Multi-Parameter, and Best Value Contracting. Report No. 451. National Cooperative Highway Research Program, Washington, DC.
ARA, Inc., ERES Consultants Division. (2004). Guide for Mechanistic-Empirical Design of New and Rehabilitated Pavement Structures. NCHRP Project 1-37A. http://www.trb.org/mepdg/guide.htm Accessed October 27, 2005.
Aschenbrener, T.B., and DeDios, R.E. (2001). Materials and Workmanship Warranties for Hot Bituminous Pavement. Report No. CDOT-DTD-2001-18. Colorado Department of Transportation, Denver.
Bayraktar, M.E., Cui, Q., Hastak, M., and Minkarah, I. (2004). State-of-Practice of Warranty Contracting in the United States. Journal of Infrastructure Systems, Vol. 10, No. 2, pp. 60-68.
Chen, D., Scullion, T., Bilyeu, J., Yuan, D., and Nazarian, S. (2002). Forensic Study of Warranty Project on US82. Journal of Performance of Constructed Facilities, Vol. 16, No. 1, pp. 21-32.
Cui, Q., Bayraktar, M.E., Hastak, M., and Minkarah, I. (2004). Use of Warranties on Highway Projects: A Real Option Perspective. Journal of Management in Engineering, Vol. 20, No. 3, pp. 118-124.
Dukatz, E., Volker, T., and Sewandt, S. (2001). Specifying Performance into Asphalt Pavements: The Wisconsin Warranty Specification and the I-39 Experience. Journal of the Association of Asphalt Paving Technologists, Vol. 70, pp. 800-820.
Federal Highway Administration. (2000). Warranty Clauses in Federal-Aid Highway Contracts. FHWA Briefing, December 7. http://www.fhwa.dot.gov/programadmin/contracts/ warranty.htm. Accessed November 22, 2004.
Federal Highway Administration. (2004). Construction Program Guide: Special Experimental Project No. 14—Innovative Contracting. http://www.fhwa.dot.gov/construction/cqit/ sep14.htm. Accessed September 3, 2004.
Haddock, J.E., and Ward, D.R. (1998). Performance of a Warranted Hot-Mix Asphalt Pavement in Indiana. Journal of the Association of Asphalt Paving Technologists, Vol. 67. pp. 433457.
Highway Research Board. (1962). The AASHO Road Test, Report 7: Summary Report. Washington, DC.
Johnson, A. (1999). Use of Design/Build and Warranties in Highway Construction: Guidelines for Program Implementation. Report No. 1999-37. Minnesota Local Road Research Board, Minnesota Department of Transportation, St. Paul.
Krebs, S.W., Duckert, B., Schwandt, S., Volker, J., and Brokaw, T. (2001). Asphaltic Pavement Warranties: Five-Year Progress Report. Wisconsin Department of Transportation, Madison.
May, R.W., Palmer, W.A., Valerio, M.E., Solaimanian, M., Winford, J., Rowe, G., Tam, W.O., Scherocman, J., and Decker, D.S. (2003). NM-44: A Case History of Long-Term Warranted Performance. Journal of the Association of Asphalt Paving Technologists, Vol. 72, pp. 595-634.
Ohio Department of Transportation. (2000). Implementation of Warranted Items on Construction Projects. Columbus.
Virginia Department of Transportation, Materials Division. (2001). Virginia Test Methods. Richmond.
Virginia Department of Transportation, Materials Division. (2003). Guidelines for 1993 AASHTO Pavement Design. Richmond.
APPENDIX A
HMA OVERLAY PERFORMANCE SPECIFICATION
No pavement section shall contain the following pavement distresses in excess of the defined failure criteria (either severity or frequency). A pavement section is defined as an individual mainline or shoulder lane 528.4 feet (0.1 mile) in length, beginning at the limits of the project as defined within the contract. A pavement section is considered to have failed if the failure criteria (either severity or frequency) are exceeded for any of the following distresses during the time period stated.
Longitudinal Cracking - Cracks that are predominantly parallel to the pavement centerline, including longitudinal joints, but not within the wheel paths.
| Transverse Cracking – Random cracks that are predominantly perpendicular to the pavement centerline, but not over joints in underlying layers. | |
|---|---|
| Time Period | Criteria |
| Years 1 - 9 | Maximum unsealed crack length of 100 feet per mile (for cracks greater than 1/4 inch width) |
Alligator Cracking* - Usually found in the wheel paths, beginning as a single longitudinal crack, may form a series of interconnecting longitudinal and transverse cracks forming a series of blocks up to approximately 1foot each on a side in a complete pattern. Low severity may be seen as single longitudinal crack within the wheel path; medium severity may be seen as an area of interconnecting cracks.
*Criteria shall be waved at year 5 if the predicted total cumulative ESALs at year 5 are exceeded by more than 50%.
*Criteria shall be waved at year 5 if the predicted total cumulative ESALs at year 5 are exceeded by more than 50%. +Criteria shall be waved for shoulder areas.
| Potholes – Bowl shaped depressions in the pavement surface | |
|---|---|
| Time Period | Criteria |
| Years 1 - 9 | Existence |
Rideability* + - Smoothness of the pavement measured by the International Roughness Index (IRI). Rideability testing shall be measured using equipment conforming to or exceeding the specifications outlined in VTM 106. Testing shall be performed following the procedures outlined in VTM 106.
*Criteria shall be waved at year 5 if the predicted total cumulative ESALs at year 5 are exceeded by more than 50%. +
Criteria shall be waved for shoulder areas.
| Skid Resistance+ - Measured by skid testing using a locked wheel device conforming to ASTM E274 and E524 specifications and procedures. | |
|---|---|
| Time Period | Criteria |
| Years 1 - 4 | No section shall have a SN40S of less than 25 |
| Years 5 - 9 | No section shall have a SN40S of less than 25 |
+Criteria shall be waved for shoulder areas.
WHEEL PATH DEFINITION
APPENDIX B
RESULTS OF FWD TESTING
Figure B1. Backcalculated Subgrade Resilient Modulus from FWD Testing for Eastbound and Westbound Interstate 66
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ISSN:
2574 -1241
DOI:
10.26717/BJSTR.2023.47.007572
"Hot Points" in Scientific Research in Surgery
Gabriele De Sena 1 *, Gianmarco Ascolese 2 , Francesca Romana Ciorra 3 , Vincenza Capuozzo 4 and Danilo Porpora 5
1Faculty of Medicine, University of Ostrava, Czech Republic
2Department of Advanced Medical and Surgical Sciences, University of Campania Luigi Vanvitelli, Italy
3Emergency Department, AORN Cardarelli, Italy
4Department of Surgery, "Santa Maria della Pietà" Hospital, Italy
5Department of Translational Medical Sciences, University of Campania Luigi Vanvitelli, Italy *Corresponding author: Gabriele De Sena, Faculty of Medicine, University of Ostrava, Ostrava, Czech Republic
ARTICLE INFO
ABSTRACT
Citation: Gabriele De Sena, Gi anmarco Ascolese, Francesca Roma na Ciorra, Vincenza Capuozzo and Danilo Porpora. "Hot Points" in Sci entific Research in Surgery. Biomed J Sci & Tech Res 47(5)-2023. BJSTR. MS.ID.007572.
Received:
Published:
December 13, 2022
January 05, 2023
In the last century, surgery has changed dramatically. We have moved from con sidering only the demolition sphere, to trying more and more approaches as less inva sive as possible, trying not only to eradicate the disease, but also to protect the validity of the Person as much as possible. This change of views has been possible only thanks to innovation, which has allowed surgeons to possess increasingly efficient and so phisticated biotechnological instruments and approaches. However, it should not be forgotten that, unlike clinical trials of drugs, experimentation in surgery is more empirical and still little standardized and codified and is left to the intuition of the individual surgeon, who tries to put into practice his original idea. The authors ana lyze the official and unofficial rules where present and the criticalities of this specific experimental field also from a regulatory and deontological point of view. Finally, they propose ideas for a bioethical debate of no small moment, but still largely unexplored and open on experimentation in Surgery and which now cannot be avoided nor de lude.
Introduction
Medicine and Surgery in the last century have undergone profound changes and although the goal is always the same, namely, the protection of the life and health of the Person, the relational priorities have changed extremely. Historically, for centuries, surgery has focused mainly on amputations and cauterizations of wounds, in which mainly the demolition approach was codified and inescapable There have been periods, especially in medieval times, in which Surgery was distinguished from Medicine, because while the latter was closely linked to academic rank and culture, Surgery was also practiced by people with lower degrees of education 'minor' surgeons and cerusici - who dedicated themselves to the exercise of bloodletting, on the recommendation of the doctor, to the treatment of abscesses, fistulas, fractures, dislocations in general, but they could also perform the most complex operations. Subsequently, while remaining the main problems faced unchanged, the professionalism of the surgeon, with the advent of anesthesia and antisepsis and sterilization techniques, has developed up to the current era, in which surgery has become increasingly complex, technologically sophisticated, minimal in the approach and careful not only to eradicate the disease, but also to safeguard the suffering person, in its relational sphere. This radical change has required the surgeon not only those manual skills, typical of his profession, but also in-depth biological, pathophysiological and technological knowledge about the materials and biomaterials, biological and synthetic, that are used and about the instrumentation used (which is no longer limited to the scalpel alone, as in the past).
Evaluation Criteria
Traditionally, the criteria for evaluating the effectiveness of a surgical innovation have been the reduction of morbidity and mortality of patients, objective and easily measurable criteria. Today, these criteria have been accompanied by others that are more difficult to interpret, such as the increase in the period of disease-free survival, the greater residual validity of the person, the reduction in recurrence rates, or the reduction of hospital days and, in general, of the social costs of the disease. To achieve these objectives, the extraordinary technological development of the last century has come to the aid of surgeons, which has made increasingly effective, sophisticated and complex instruments available to operators; Just think of robotic surgery or the possibility of operating on a person remotely. Innovation and Experimentation
Definition Innovation, and therefore experimentation, are an important part of surgery, even if, contrary to what happens in the field of clinical trials of drugs, there are no certain and well-codified procedures and rules of behavior. This innovation gap in surgery has its roots in the peculiarities of surgery itself. It should be considered that, very often, a new technique is not a completely original technique, but rather is based on an old technique, which is readapted to new needs and new technologies, so it is a continuum, which develops and perfects day by day with practice and experience. The innovation or modification can also be made in urgent conditions and adapted to the specific patient. It must also be taken into account that surgery, at the time of today, is a complex act, in which different figures and specialties come into play such as the surgical, anesthesiological, nursing and clinical team and then there are factors related to the specific surgical technique, post-operative management, etc. The intrinsic difficulty of standardizing the complexity of surgical action is evident. An innovative procedure in surgery is defined as «a new or modified surgical procedure, which differs from the one currently used, the results of which have not yet been described and which may involve risk to the patient». In addition to this definition, the introduction of new technologies and biotechnologies, invasive or not, which, coming into contact with the body, can involve interactions both for the instrument-tissue interface (with the most varied exposure times: in a few moments to the perennial permanence in the organism), and by creating other interactions with the passage, for example, of electricity or other energies, must also be considered as innovative in surgery. These forms of innovation are increasingly flanked, nowadays, by the use of biotechnologies, aimed at achieving substantial therapeutic advantages. It should also be emphasized that some standardized studies, pertinent to the surgical field, extend their interest also towards 'perisurgery' aspects, such as
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anesthesia and postoperative management, not limiting themselves only to the actual surgical act. Types of Innovation According to Barkun et Al three types of innovations in surgery can be distinguished: the first is inherent in the surgical procedure with the change of part of an already known technique or with the introduction of a new surgical therapy (new intervention based on new pathophysiological knowledge) or with the experimentation of a new modality both on the technological level and on that of the pathophysiological approach (eg videolaparoscopy or robotic surgery). The second type concerns the modification of a single instrument or a specific instrumentation (e.g. from a Kocher gripper to the modification of more sophisticated devices such as stapplers or trocars for SIS). The third type, finally, concerns the change of approach, biotechnological or combined, (eg gene-chip microarrays, use of glues for tissue synthesis, for hemostasis, etc.). Regulations Currently in Italy there is no specific legislation on surgery experimentation, but more generally it is traced back to that on clinical trials. Not even in the Code of Medical Deontology (18.05.2014) is made a reference to this specific problem, while it speaks in article 49 of clinical trials, with reference to the medical one, but not to the surgical one, The Association of Italian Hospital Surgeons (ACOI) has included in its ethical manifesto, approved on April 4, 2009, a paragraph, inserted in section V entitled «Surgeons and Society», inherent to research in surgery, in which good rules of conduct are enunciated in the field of surgical experimentation. On the contrary, the experimentation of medical devices or devices has recently been well codified, through Legislative Decree 25.01.2010. Animal and Cadaver Experimentation Particular attention deserves a widespread practice in the past, namely the experimentation of surgical techniques on animals or cadavers. Cadaver experimentation has distant roots and in the past it was very common for surgeons to implement their knowledge and dexterity in the sector rooms. However, this practice is not widespread in Italy even if abroad it is increasingly increased with real cadaver surgery courses. Transplant Surgery A particular area of experimentation in surgery is that relating to transplant surgery. This particular branch of surgery, defined by the National Committee for Bioethics in 1991 as «a safe and irreplaceable therapeutic opportunity capable of positively resolving objective situations of danger and damage to life or individual validity, not otherwise and / or not as effectively treatable « appears more regulated, since several times the State has intervened in the regulation of the donation, removal and
transplantation of organs and tissues, however here as in the rest of the discipline there is no specific legislation on experimentation. The lack of legislation on the subject cannot, however, slow down the experimentation in surgery, which is continuous and takes place mostly empirically in all operating rooms, but always in constant compliance with the rules concerning informed consent, although they are contemplated almost exclusively in the code of professional ethics, given the continuing absence of an organic state discipline on the subject. The Design of an Experimental Study The design of an experimental study in surgery still remains far from what is performed in clinical trials of drugs and above all there are problems in identifying the type of study to be implemented (randomized or not, controlled or not). Randomized controlled trials (RCTs) are considered the gold standard for establishing the safety and efficacy of an intervention, as with any clinical trial. However, despite the fact that since the 70s we have tried to make surgery more rigorous, the use of randomized controlled trials has always been very low [1,2]. Randomized trials, however, are prospective, so the trial is conducted in parallel in two groups in which the patient is randomly assigned, treatment and follow-up are strictly standardized, and the results are analyzed at the end. It is evident that to have statistical significance one must have an adequate sample. To this end, it would be desirable, precisely in order to improve the statistical significance of the final data, to collaborate on shared research protocols of several teams of operators, comparing the results of the experimentation also on selected control groups. The experimental treatment is assigned to a part of the eligible patients, consecutively observed for a standard period of time, also predefined. The others are treated differently and serve as controls. The allocation of treatments is made through a lottery system that promotes comparability between groups. In this methodological context, however, there is a major and important criticality, which makes experimentation in Surgery peculiar. Specifically, it is a matter of being clear: what is meant by control cases and, conversely, by placebo surgery (sham surgery), we will talk about later.
a) I = Idea: in this phase the method is implemented on a single patient or on a very limited number of patients selected by very few surgeons and can constitute a case report
Over the years, experimental models have been proposed, to date the most interesting is the IDEAL protocol. This protocol aims to standardize and apply the methodology of clinical trials also in surgery. The study is structured in five different phases:
b) D = Development: the number of patients and surgeons involved increases slightly while remaining a very small number, in this phase we are still in a descriptive phase of the
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c) E = Exploration: in this phase there are many patients who are subjected to the new method because the indications are enlarged and many surgeons use it, the new method is compared with others, the safety, short-term effects and feasibility of the trial by randomized controlled procedure are evaluated
intervention and at a methodological level we can begin to develop a prospective study
d) A = Assessment: the indications for the new procedure are many and well defined, so the number of patients increases, consequently the number of surgeons who implement that method also increases. At this stage we are still looking for comparison with other methods already known, but we begin to have complete information from non-randomized studies. In addition, the medium and long-term effects and the cost impact can be assessed
Standardization From a point of view of methodological speculation, then, it should be considered that in the evaluation of a surgical trial, in addition to the problems attributable to factors related to the design of the study (randomized controlled trials vs nonrandomized trials), there are also those related to the nature of the surgery (complexity of the intervention and factors related to the operator) [6,7]. In fact, the standardization of surgical treatment is difficult, if not impossible: surgeons have different experience, each surgeon may have preferences in performing a technique, the technique itself can be modified / evolved during the study; Consequently, the question arises as to whether it is actually preferable to involve more surgeons in the study in order to have a greater generalization or instead to limit oneself to the activity carried out by a few specialized surgeons, in order to have greater standardization [8-10]. In addition, there are undeniable problems intrinsic to the surgery itself, since surgery is in itself invasive and irreversible, problems about the long duration of studies, the huge cost and about the general medico-legal problems with particular regard among others to those concerning: (a) The consent of the persons on whom the trial is conducted
e) L = Long-Term Study: in this phase the method is applied to all eligible patients, long-term effects are studied and the rarest and most unique cases are reported [3-5].
(b) Guarantees of the safety of the trial (c)
The professional liability of the investigator [11].
Finally, the choice of control group and its implications must be assessed.
Sham Surgery In the design of randomized clinical trials, the so-called placebo controls have been introduced in order to increase the scientific nature of the study and minimize the confounding factors related to the investigator and the patient and which, in the surgical field, as already mentioned, are numerous and very conditioning. Placebo surgery ([12] sham surgery) occurs when a subject included in the trial is subjected to a surgical procedure that apparently seems therapeutic, but during which the main therapeutic maneuvers are omitted and therefore an invasive, intrinsically dangerous and ineffective action is used as a control group of the experimentation itself. According to Heckerling, placebo surgery is a tool to measure the effectiveness of invasive procedures and, therefore, eliminate for future patients the risks of surgical procedures that do not offer benefits. The use of placebo surgery, however, has aroused considerable debate in fact we can identify elements favorable to its use and contrary elements. Among the favorable elements we can include the fact that the use of a placebo control group increases the scientific validity of the study. It must also be considered that there will be greater benefits for future patients, being able to prevent the introduction of insufficiently validated techniques and potentially risky interventions in clinical practice, in addition to the fact that, according to many authors, the risks to which these subjects are subjected are acceptable. On the other hand, according to other authors, correction of a study based on the placebo effect may not be necessary, since the extent of this effect is often magnified, and the use of the placebo control group does not increase the statistical validity of the study. The other objections that are made to the use of placebo surgery in the control groups in the surgical trial are related to the fact that the subjects included within the placebo group do not receive a substantial benefit and, therefore, are subjected to risks that cannot be accepted [13-19].
Therefore, the use of placebo control groups in the surgical trial remains debated. Although placebo-controlled trials are currently considered the gold standard in the design of a study, they require in any case the prior opinion of an Ethics Committee, specially constituted according to current regulations. (Ministerial Decree of 18 March 1998 and subsequent amendments) and with the participation, among others, of professionals who are experts in the field [20]. Hot Points. It is clear that the peculiar problems of the design of the study are flanked by some of a general nature on experimentation in surgery, and others of mainly medico-legal value including in addition to those already mentioned above: information to be given to the patient on the risks, validity and limits of the consent given, revocation of consent, position of guarantee of the doctor with regard to the protection of life and health of the patient, the compatibility of the procedure with the content of art. 5 of the Civil Code, insurance aspects. Please note
10.26717/BJSTR.2023.47.007572
This problem, which has unfavorable repercussions on prior information, which substantiates the validity of the consent of the person entitled, is common with that of patient safety. In fact, especially at an early stage, there is not enough data to be able to evaluate the results in the medium and long term. In studies where a placebo control group is used, it is even more difficult to obtain valid informed consent, since for subjects, randomized in the control group, the therapy carried out will be very far from what is the standard of care. As far as the learning curve is concerned, it should be noted that once performed in a pilot center, the innovation can also be performed elsewhere, by other surgeons for the first time. The «learning curve» refers to the increased risks to patients during the time the surgeon and surgical team become familiar with the new procedure. The curve can only be analyzed retrospectively, so at the time the patient is operated it is not known in which part of the learning curve the surgeon is. However, the patient must be informed about the level of practice of the surgeon with that innovative methodology [21,22].
that in order to obtain valid informed consent from a patient prior to surgery, consent must be conscious, i.e. informed, free, explicit, authentic, current, revocable and free from defects. However, in the case of experimentation, and in particular that in surgery, the surgeon himself cannot be aware of everything that surgery may involve.
This aspect is also much debated in surgical practice (volumes of activity) both from an ethical and professional point of view: a surgeon must necessarily have a first time in his surgical activity and, indeed, in his professional life, he will have more than one first time: they will be many, how many innovations and new approaches will be, which will have in its surgical activity as a direct consequence of its experimental activity. The management of this aspect is still crude and not codified and greatly affects research programs and, if it is not defined, it will greatly condition innovation in surgery and the new generations of surgeons, because if it is correct to inform the patient about the specific situation, it is easy to expect negative reactions from patients. Training An answer to such a problem could be given by the involvement of a possible animal experimentation and the use of simulators, this, more specifically for training only. Costs Finally, the problem of costs, new procedures often depend on a new technology that is almost always more expensive than the traditional one and on the other hand the new procedure can make bolder innovative techniques safer and expand their profitable use. It should also be remembered that the longer operating time
must also be considered among the costs [23]. This additional cost, globally, may have implications for the availability of the innovative surgical procedure for the population. More specifically, depending on the Health System, present in the various countries, the additional costs could make the new procedure available only to those, who, wealthy, can support them or the additional costs could be distributed throughout the Health System taking resources from other conventional therapies. Ultimately, the surgeon must always clearly assess the cost implications before undertaking innovative procedures. Ethical Aspects
The bioethical debate must fill the gaps and finally inspire the surgeon-actor, the scientific community and the legislator. In this perspective, it seems necessary for scientific societies to try to regulate the field of surgical experimentation, protecting the patient as much as possible from unscrupulous treatments, on the other hand allowing the surgeon to put into practice, in a short time,
Whenever we talk about surgical innovation, we must not ignore, moreover, the considerable potential for conflicts of interest for innovators in their relationships with companies, which produce the technology, which makes innovation possible. The surgeon who develops a new technique is a surgeon who can increase his fame and potentially become the expert in that specific field: all this could push the surgeon to support the innovative procedure. On the other hand it is right to uphold the standards of professionalism of surgeons. The surgeon's ability must be to always objectively evaluate new techniques, always aiming at the good of the patient. Surgeons, in order to maintain their professional position in society, must not allow the recall of the new in itself and the potential financial benefit to influence their assessment of the effectiveness and validity of any surgical operation or instrumentation, whether traditional or innovative. It is widely accepted that the future progress of surgery depends on innovative solutions to contemporary problems. Yet the future of surgical innovation is fraught with ethical concerns. Thus, innovation is not only the key to surgical progress, but also the greatest challenge for the professionalism of surgeons.» Everything, therefore, leads to the centrality of the Experimenter-Surgeon and his ethical conviction, made up of non-negotiable values of Life-Health, respect for the human Person and a profound respect for all that is in Nature, starting from animals and involving all the harmony of it. The vocation of human speculation is not to leave alone any Individual, however appreciable it may be, in deciding Others and Himself: in this case the Surgeon must ask for help in bioethical reflection and this must feel the obligation to deepen, speculate and discuss the problems exposed so far, as food for thought. Conclusion
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2. Armocida G, Dionigi R (2002) Cenni di storia della chirurgia in Chirurgia (edited by Renzo Dionigi). Milan: Masson.
original ideas to improve or revolutionize a specific treatment of his branch. Finally, a correct legislative regulation of experimentation in surgery would have the double advantage of allowing the surgeon to be able to work and experiment in conscience, in full legality and in safety for himself and for the patient, and therefore for society as a whole, to benefit from the innovations that result from the brilliant idea and its correct experimentation of it. References 1. Di Salvo E (2012) The use of technologies in medicine: problems and criticalities in surgery. In: Claudio Buccelli (Eds.)., Proceedings of the conference "Clinic and Technology in contemporary medicine", Naples 21-23.11.2012.
4. Biffl WL, Spain DA, Reitsma AM (2008) Responsible development and application of surgical innovations: a position statement of the Society of University Surgeons. J Am Coll Surg 206: 1204-1209.
3. Petrini C (2013) Surgical experimentation and clinical trials: differences and related ethical problems. Ann Ist Super Health Care 49(2): 230-233.
5. Barbarisi A (2007) Biotechnology in Surgery. Milan: Springer-Verlag; 201110 TROUET C, GOBERT M, PODOOR M. Clinical Trials in Belgium: The Belgian Implementation of the European Clinical Trials Directives. Antwerp: Intersentia.
7. Barkun JS, Aronson JK, Feldman LS, Guy J Maddern, Steven M Strasberg, et al. (2009) Evaluation and stages of surgical innovations. Lancet 374(9695): 1089-1096.
6. Ergina PL, Cook JA, Blazeby JM, Isabelle Boutron, Pierre-Alain Clavien, et al. (2009) Challenges in evaluating surgical innovation. Lancet 374: 1097-1104.
8. McCulloch P, Altman DG, Campbell WB, David R Flum, Paul Glasziou, et al. (2009) No surgical innovation without evaluation: the IDEAL recomandations. Lancet 374(9694): 1105-1112.
11. Brubaker L, Nager CW, Richter HE, Dennis Wallace, Susan Meikle, et al. (2014) Effectiveness of blinding: sham suprapubic incisions in a randomized trial of retropubic midurethral sling in women undergoing vaginal prolapse surgery. Am J Obstet Gynecol 211(5): 554. e1-7.
9. Cook RC, Alscher KT, Hsiang YN (2003) A debate on the value and necessity of clinical trials in surgery. Am J Surg 185(4): 305-310.
10. Morreim H, MJ Mack, RM Sade (2006) Surgical innovation: too risky to remain unregulated? Ann Thorac Surg 82(6): 1957-1965.
12. Dunlop SR, McCormick M (2015) Placebo Surgery in Clinical Research Trials for Parkinson Disease. The Journal for Nurse Practitioner 11(2): 240-247.
15. London AJ, Kadane JB (2002) Placebos that harm: sham surgery controls in clinical trials. Stat Methods Med Res 11(5): 413-427.
13. Heckerling PS (2006) Placebo surgery research: a blinding imperative. J Clin Epidemiol 59(9): 876-880.
16. Polgar S, Ng J Ethics (2005) methodology and the use of placebo controls in surgical trials. Brain Research Bulletin 67(4): 290-297.
14. Albin RL (2005) Sham surgery controls are mitigated trolleys. Journal of Medical Ethics 31(3): 149-152.
17. Niemansburg SL, van Delden JJ, Dhert WJ, Annelien L Bredenoord (2015) Reconsidering the ethics of sham interventions in an era of emerging technologies. Surgery 157(4): 801-810.
18. Macklin R (1999) The ethical problems with sham surgery in clinical research. N engl J Med. Sep 341(13): 992-996.
21. Sevladis N, Lyons M, Healey A (2009) The Observational Teamwork Assessment for Surgery (OTAS). Observational Teamwork Assessment for Surgery. Ann Surg 249(6): 1047-1051.
19. Flowers A (1999) Forensic medicine of medical liability. Milan; Giuffrè Publisher.
20. Angelos P (2013) Ethics and surgical innovation: challenges to the professionalism of surgeons. Int J Surg 11(S1): S2-S5.
ISSN: 2574-1241
DOI: 10.26717/BJSTR.2023.47.007572
Gabriele De Sena.
Biomed J Sci & Tech Res
Submission Link:
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22. McDonald PJ, Kulkarni AV, Farrokhyar F (2010) Ethical issues in surgical research. Can J Surg 53(2): 133-136.
23. Angelos P (2013) Ethics and surgical innovation: challenges to the professionalism of surgeons. Int J Surg 11(s1): s2-s5.
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Microwave Assisted Synthesis of Pyrido [2,3,4kl]Acridines Unit of Some Marine Alkaloids via Nitrene Insertion
Preeti S.Zade 1* , M.M.V.Ramana 2
Assistant Professor, Department of Applied Sciences, Bharati Vidyapeeth College of Engineering,
Navi Mumbai, India
1
Professor, Department of Chemistry, University of Mumbai, Vidyanagari, India 2
ABSTRACT: Many marine alkaloids are known which have a common structural feature of tetracyclic pyrido [2,3,4kl]acridine system 1 . Most of these molecules exhibit very interesting biological properties like antitumor, cytotoxic and antiviral activities. 2 Microwave irradiation is well known for its ability to reduce reaction times dramatically, to increase product yields, and to enhance product purities by reducing unwanted side reactions compared with conventional heating. This is due to their interesting biological activities and challenging structures. We report a simple and convenient synthesis of pyrido [2, 3, 4-kl] acridine utilizing microwave irradiated intramolecular nitrene insertion reaction as key step for generating the tetracyclic framework of marine alkaloids.
KEYWORDS: Microwave, marine alkaloids, nitrene insertion, pyrido[2,3,4-kl]acridine.
I. INTRODUCTION
Marine organisms have been the source of a wide variety of novel natural products. There is currently great interest in marine pyridoacridines due to their significant biological properties. Almost all have been reported as having significant cytotoxicity; however, several specific biological properties have also emerged for different compounds: inhibition of anti-HIV activity, 3 topoisomerase II, 4,5 Ca 2+ release activity, 6 metal chelating properties, 7 and intercalation of DNA. 5,7 In addition, pyridoacridines have drawn attention because of their novel heterocyclic chemistry and an unprecedented distribution across several phyla of marine invertebrates.
The short reaction times and expanded reaction range that is offered by microwave assisted organic synthesis are suited to the increased demands in industry The main reasons for the increase include the availability of commercial microwave equipment intended for organic chemistry and the development of the solvent-free technique, which has improved the safety aspects, but are mostly due to an increased interest in shorter reaction times. Microwave irradiation has gained popularity in the past decade as a powerful tool for rapid and efficient synthesis of a variety of compounds because of selective absorption of microwave energy by polar molecules 8
The unique structural features, biological activities of pyrido [2,3,4-kl]acridine and related compounds have prompted us to undertake this work . They are generally prepared by the following methods; (a) refluxing for hours (b) using solvents. The disadvantage of these methods include drastic conditions, tedious work up, time consuming and use of solvents. Here, we report an alternative synthesis for pyrido [2,3,4-kl]acridine unit, along with their cytotoxicity profile against three different tumour cell lines.
II. RELATED WORK
Although elegant synthetic methodologies for most of pyridoacridne alkaloids have been developed and total synthesis of many of these natural products have been achieved, such alkaloids are still continuing to be the focus of many synthetic groups 9,10 . This is due to their interesting biological activities and challenging structures. It seems that any
contribution toward the synthesis of pyridoacridines units is worthwhile since most of the strategies involve the synthesis of such units. In addition, pyridoacridines have drawn attention because of their novel heterocyclic chemistry and an unprecedented distribution across several phyla of marine invertebrates.
III.MATERIALS AND METHODS
The melting points were determined using capillary tube and are uncorrected. The FTIR spectra were recorded on Spectrum One Perkin Elmer (US). The 1 H NMR spectra were recorded on a Bruker AVANCE (300 MHz) spectrometer (with TMS as internal reference). 13 C NMR spectra were recorded on Bruker AVANCE (75MHz) spectrometer. Mass spectra were recorded on API-3000 MD-series (US). Elemental analyses were carried out in EA 3000, Euro Vector, Italy. The purity of the compounds was checked by TLC on pre-coated SiO2 gel (200mesh).
IV. RESULTS AND DISCUSSION
The synthesis of this important pyridoacridines intermediate (19) (Figure-1) has been achieved in 7 steps with overall 76% yield. Our synthesis stared with the condensation of commercially available benzoylacetic ethyl ester and 2methoxy -5-nitrobenzenamine which led to the formation of the amide(5) in 81% yield. Such a condensation reaction is carried out by heating for longer time in a Dean stark apparatus. Hence, we have to carry out in a microwave oven to decrease the time required for condensation. In the electromagnetic spectrum the microwave radiation region is located between infrared radiation and radio-waves 11,12 . In order to avoid interference with these systems, the household and industrial microwave ovens operate at a fixed frequency of 2.45 GHz. 13,14 The energy of the quantum involved can be calculated by the Planck's law E = h ν and is found to be 0.3 cal mol –1 .In microwave heating, the substance must possess a dipole moment. A dipole is sensitive to external electric field and tries to align itself with the field by rotation. If submitted to an alternating current, the electric field is inversed at each alterance and therefore dipoles tend to move together to follow the inversed electric field. Such a characteristic induces rotation and friction of the molecules, which dissipates as internal homogeneous heating.
The cyclization of the corresponding product with 80% H2SO4, which smoothly yielded the quinolinone(7) in 49% yield. After constructing the quinolinone ring successfully, we concentrated on building the last ring, utilizing the intramolecular nitrene insertion methodology. Conversion of quinolinone ring to the corresponding azide(10) was then carried out by the classical nitrous acid followed by sodium azide combination of reactions. The next step in the synthesis of pyrido [2,3,4-kl]acridine unit was the key intramolecular nitrene insertion reaction. The synthesis of the tetracyclic compound constitutes achievement of one of the major objectives, namely the synthesis of an advanced tetracyclic intermediate in which the B ring is functionalized. Analogues of natural products containing pyridoacridine units could be available from it by manipulation of the quinolinone ring. The key compound (19) was then easily prepared from (18) by conversion to the chloroquinoline in 83% yield.
Experimental procedure:
:
N-(2-methoxy-5-nitrophenyl)-3-oxo-3-phenylpropanamide (5)
A mixture of 2-methoxy-5-nitroaniline (0.009mol) and benzoylacetic ethyl ester (0.009mol) was irradiated in a microwave oven at 100% intensity for 7 min. The reaction mixture was taken out of microwave oven and was allowed to cool. The yellow coloured solid was recrystallized from chloroform .Yield 3.56 g, 81%, yellow crystals, m p 183185°C (lit. 15 ).
MS: m/z 314 (M+). 1H NMR(CDCl3): 4.02 (s, 3H), 4.08 (s, 2H), 6.86 (d, J = 8.4 Hz,1H), 7.60 (s, 5H), 8.0 (m, 2H).Anal. calcd. for C16H14N2O5:C 61.14, H 4.49, N 8.91; found: C 60.98, H 4.53, N 8.78
8-methoxy-5-nitro-4-phenylquinolin-2(1H)-one was prepared as per procedure reported in literature 16.
8-methoxy-5-nitro-4-phenylquinolin-2(1H)-one (7):
N-(2-Methoxy-5-nitrophenyl)-3-oxo-3-phenylpropanamide (0.014mol) was stirred in H2SO4 (80%, 100 ml) at 75°C for 1 hour. The reaction mixture was cooled to room temperature and poured into ice water. The resulting solution was then neutralized with Na2CO3 and the Na2SO4 which separated was removed by filtration and the filtrate was extracted with CH2Cl2 (30X4 ml) and the combined extracts were dried (MgSO4) and the solvent was evaporated under reduced pressure. The crude product obtained was recrystallized from toluene. to give yield: 2.030 g, 49%, orange solid, m.p. 155-158 0 C.MS: m/z 296 (M+). 1 H NMR (CDCl3): 9.853(s, 1H; H-1) ,7.643-7.692(m, 5H; Ar H- 2',3',4',5',6'),7.5187.548(d,1H ; H-6), (J = 9 Hz),6.982 -6.952(d, 1H; H-7), (J = 9 Hz), 5.728 (s, 1H; H-3), 3.982 (s, 3H; -OCH3).IR:3370(ν amide N-H),1624.93 (ν amide C=O),1605.65 (ν Ar C=C),1326.99 and 1514.48 (ν –NO2),1017.07 (ν C-O) 13 C-NMR: 159.9(C-2, C=O), 158.8 (C-8), 139.7 (C-5), 139.0 (C-7), 137.1 (C-6),129.5 (C-4), 128.4(C-8a),128.2 (C-4a), 127.5 (C3),127.3 (C-1'), 125.2(C-2'),123.4 (C-3'), 120.7 (C-5'),115.6 (C-6'),111.4 (C-4'),56.2(-OCH3).
Anal. calcd. for C
16
H
14
N
2
O
5
:C 64.86, H 4.08, N 9.46; found: C 65.02, H 4.22, N 9.65
5- amino-8-methoxy-4-phenylquinolin-2(1H)-one (10):
5- Amino-8-methoxy-4-phenylquinolin-2(1H)-one was prepared from 8-methoxy-5-nitro-4-phenylquinolin-2(1H)-one (0.005mol) , Zn dust (0.006 mol) in methanol (5ml) and 90% HCOOH (2.5ml) After completion of the reaction (monitored by TLC), the mixture was filtered off. The organic layer was evaporated and the residue dissolved in CHCl3 and washed with saturated NaCl. The organic layer upon evaporation gave the yellow crystalline product of 5- amino8-methoxy-4-phenylquinolin-2(1H)-one,( yield: 78%), m.p. 216-218°C (lit. 15 ).
5-azido-8-methoxy-4-phenylquinolin-2(1H)-one (14)
:
5-azido-8-methoxy-4-phenylquinolin-2(1H)-one was prepared from 5-amino-8-methoxy-4-phenylquinolin-2(1H)-one (0.007 mol), concentrated H2SO4 (1.72 ml), sodium nitrite (0.001mol) and sodium azide (0.001mol), The mixture was stirred for 10 minutes at room temperature, then more water (3 ml) was added and the mixture was cooled to 0–5°C in an ice water bath. A solution of sodium nitrite (0.001mol) in water (5 ml) was carefully added drop wise and the mixture was stirred for 45 minutes. With constant stirring, a solution of sodium azide (0.001mol) in water (5 ml) was then added drop wise and stirring was continued for a further 40 min. The reaction mixture was poured into water (30 ml), and the resulting solution neutralized with Na2CO3 and extracted with CH2Cl2 (3 × 40 ml). The organic extracts were dried (MgSO4), filtered, and the solvent was evaporated under reduced pressure. The yellow crystalline solid of 5azido-8-methoxy-4-phenylquinolin-2(1H)-one was obtained, (yield: 90%), m.p. 261 0 C.
4-methoxy -3H-pyrido [2,3,4-kl]acridin-2(7H)-one(16):
5-Azido-8-methoxy-4-phenylquinolin-2(1H)-one (2 mmol) was refluxed in xylene for 1.5 hours. The reaction mixture was cooled to room temperature and left overnight. The solid, which separated, was collected by filtration and washed with petroleum ether (bp 40–60°C, 25 ml). The dark brown residue thus obtained was purified by column chromatography using silica gel adsorbent. Elution with mixture of ethyl acetate and ethanol (4:2) followed by distillation for recovery of solvent. Yield: 0.39 g ,75%, brown crystalline solid, m. p. 270 °C (lit 15 . m.p.270°C).
2-chloro-4-methoxy -7H-pyrido[2,3,4-kl]acridine(18):
4-Methoxy -3-H-pyrido [2,3,4-kl]acridin-2(7H)-one ( 0.75mmol) was refluxed in POCl3 (30 ml) for 1 hour. The reaction mixture was cooled to room temperature and poured into water (50 ml). The resulting solution was neutralized with solid Na2CO3 and the solid, which separated, was collected by filtration . Yield: 1.74g, 83%, red crystalline solid,m.p.202°C (lit 15 . m.p.202°C).
Formation of 4-methoxy -7H-pyrido [2,3,4-kl] acridine (19):
A suspension of 2-chloro-4-methoxy -7H-pyrido [2,3,4-kl]acridine (0.002mol) , Zn dust (0.006 mol) in methanol (5ml) was stirred with 90% HCOOH (2.5ml) at room temperature. After completion of the reaction (monitored by TLC), the mixture was filtered off. The organic layer was evaporated and the residue dissolved in CHCl3 and washed with saturated NaCl. The organic layer upon evaporation gave the red crystalline product of 4-methoxy -7H-pyrido [2,3,4kl] acridine. Yield: 0.94 g ,76%), m.p. 224°C (lit. 15 ).
BIOLOGICAL RESULTS
The cytotoxic activity of compounds 16, 18 and 19 was tested in murine limphoma (P388D), human cell lung carcinoma (A549), human colon carcinoma (HT-29), and human melanoma (SK-MEL-28) cell lines and the results are detailed in Table 1. All those compounds present cytotoxic activity. A comparison of the activity of our tetracyclic compounds 16–19 with ascididemine 1; shows a minor activity for 16&19, although 18 has a similar potency. Finally, the tetracyclic compound 18 presented an excellent cytotoxic activity, especially against human cell lung carcinoma (A-549) and human melanoma (MEL-28).
Table 1. Cytotoxic activity IC50 (ìM) of compounds 1, 16, 18&19
| 1a | 0.02 | 0.33 | 0.35 | 0.003 |
|---|---|---|---|---|
| 16 | 4.32 | 4.32 | 21.37 | 4.16 |
| 18 | 0.004 | 0.03 | 0.16 | 0.009 |
| 19 | 4.25 | 1.08 | 4.31 | 4.31 |
[a] Tested on related HCT-116 line cells.
17
V. CONCLUSION
We have successfully synthesized pyrido [2,3,4-kl]acridine unit. The route we present here involves two important key steps, cyclization to form the quinolinone moiety by utilization of microwave irradiation and intramolecular nitrene insertion to build a tetracyclic system. Microwave irradiation reduced reaction time dramatically, increases product yield and enhance product purities by reducing unwanted side reactions.
This new synthetic route to pyrido [2,3,4-kl]acridine unit has substantially reduced synthesis time and uses less reagents compared to the reported procedure. 18 Analogues of natural products containing pyridoacridine units could be available from it by manipulation of the quinolinone ring. Some of them are Arnoamine B, Arnoamine A, Norsegoline , Styelsamine D, Cystodytins –A, Methyl ether, Cystodytin J, Amphimedine, Eupomatidine, Eilatiane. Above table result shown that compound 5 have selective cytotoxicity towards the carcinoma(A-549) and human melanoma (MEL-28).
VI. ACKNOWLEDGEMENTS
Authors are thankful to Department of Chemistry, University of Mumbai, Mumbai for the facilities and to The Advanced Centre for Treatment, Research and Education in Cancer (ACTREC),Kharghar, Navi Mumbai for biological testing .PSZ thanks Bharati Vidypeeth college of Engineering,Navi Mumbai for Support.
REFERENCES
1. Ma del Mar Blanco, Carmen A.,J. Carlos Menendez, Tetrahedron, 55,12637-12646.,1999.
2. (a) Munro M.H.G., Luibrand R.T., and Blunt J.W.. In Bioorganic marine chemistry. Vol. 1. Edited by P.J. Scheuer. Springer, New York. 1987; (b) Ozturk. T. In The alkaloids.Vol. 49. Edited by G.A. Cordell. Academic Press, New York.1997; (c) Moody C.J. and Thomas R.. Adv. Heterocycl. Nat.Prod. Synth. 2, 377 (1992); (d) Molinski T.F. Chem. Rev. 93,1825 (1993).
3. McDonald, L. A., Eldredge, G. S., Barrows, L. R., Ireland, C. M. : J. Med.Chem. , 37, 3819,1994.
4. Schmitz, F. J., Deguzman, F. S., Hossain, M. B., Vanderhelm, D;J. Org. Chem., 56, 804,1991.
5. Taraporewala, I. B., Cessac, J. W., Chanh, T. C., Delgado, A. V., Schinazi, R. F.; J.Med. Chem., 35, 2744, 1992.
6. Kobayashi, J., Cheng, J., Walchi, M. R., Nakamura, H., Hirata, Y., Sasaki, T., Ohizumi, Y.; J. Org. Chem., 53, 1800, 1988.
7. Gunawardana, G.P., Koehn, F.E., Lee, A.Y., Clardy, J., He, H.Y., Faulkner, D. J.;J.Org.Chem.,57,1523-1526, 1992.
8. Kappe CO;Angrew Chem. Int Edn;43,6256, 2004.
9. (a) Molinski, T. F.; Chem. Rev. 1993, 93, 1825–1838. (b) Salomon,C. E.; Faulkner, D. J.; Tetrahedron Lett. 1996, 37, 9147–9148. (c)Plubrukarn, A.; Davidson, B. S.; J. Org. Chem. 1998, 63, 1657–1659. (d) Copp, B. R.; Jompa, J., Tahir, A., Ireland, C. M.; J. Org.Chem. 1998, 63, 8024–8026. (e) Eder, C., Schupp, P., Proksch, P.,Wray, V., Steube, K.; Muller, C. E.; Frobenius, W., Herderich, M.,Van Soest, R. W. M. ;J. Nat. Prod. 1998, 61, 301–305. (f) de Guzman, F. S., Carte, B., Troupe, N., Faulkner, D. J., Harper,M. K., Concepcion, G. P., Mangalindan, G. C., Matsumoto, S. S.;Barrows, L. R.; Ireland, C. M.; J. Org. Chem. 1999, 64, 1400–14021.(g)Schmitz, F. J., Agarwal, S. K., Gunasekera, S. P., Schmidt, P. G., Shoolery, J. N.; J. Am. Chem. Soc. 1983, 105, 4835.
10. Delfourne, E., Bastide, J.; Med. Res. Rev. 2003, 23, 234.
11. Galema SA; Halstead BSJ; Mingos DMP; Chem. Soc. Rev.; 2; 213–232, 1998.
12. P.Lidstrom, et.al ;Tetrahedron ,57,9225-9283, 2001.
13. Horikoshi S; Hamamura T; Kajitani M; Yoshizawa-Fujita M; Serpone N; Org. Process Res. Dev.,12, 1089–1093, 2008.
14. Varma RS; Green Chem; 1, 43–55,1999.
15. Turan, O., Alexander, Mc.; Canadian Journal of chemistry , 78(9), 1158-1164,2000.
16. Gedye RN; Smith FE; Westaway KC; Can. J. Chem.; 66; 17–26,1988.
17. Delfourne, E., Roubin, C. and Bastide, J.; J.Org. Chem., 65, 5476-5479,2000.
18. J. Kobayashi, J. Cheng, H. Nakamura, Y. Ohizumi, Y. Hirata, T. Sasaki, T. Ohta, S. Nozoe, Tetrahedron Lett. 29, 1177–1180, 1988.
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Funda GÜNGÖR UĞURLUCAN, a Ahmet Cem İYİBOZKURT, a Selen GÜRSOY, a Samet TOPUZ a a Department of Obstetrics and Gynecology, İstanbul University Faculty of İstanbul Medicine, İstanbul
Ka bul Ta ri hi/Ac cep ted: 15.04.2013
Ge liş Ta ri hi/Re ce i ved: 18.12.2012
This case report was presented as a poster at 8 th National Obstetrics and Gynecology Congress, 18-23 May 2010, Antalya, Turkey.
Ya zış ma Ad re si/Cor res pon den ce: Funda GÜNGÖR UĞURLUCAN İstanbul University Faculty of İstanbul Medicine, Department of Obstetrics and Gynecology, İstanbul, TÜRKİYE/TURKEY email@example.com
Cop yright © 2013 by Tür ki ye Kli nik le ri
Febrile Neutropenia Following Single Dose Methotrexate for Medical Management of Ectopic Pregnancy: Case Report
ABSTRACT Methotrexate is a folic acid antagonist and can be used as single or multi-dose regimen for the medical management of ectopic pregnancy. Rarely, side effects are observed during or after methotrexate treatment. Febrile neutropenia is one of these rare complications. We report a 33-year old patient suffering from unruptured ectopic pregnancy and treated with single dose methotrexate treatment and developed febrile neutropenia, thrombocytopenia, dermatitis, diarrhea, stomatitis and alopecia. She was managed with folinic acid (leucovorin), granulocyte colony stimulating factor, fresh frozen plasma, and thrombocyte suspensions in addition to intravenous antibiotics. She responded well to treatment; the clinical state and laboratory values normalized in 12 days.
Key Words: Pregnancy, ectopic; 3',5'-dichloromethotrexate; acquired agranulocytosis
ÖZET Metotreksat folik asit antagonistidir. Ektopik gebeliğin medikal tedavisinde tek doz veya multidoz şeklinde uygulanabilir. Nadiren de olsa metotreksata bağlı yan etkiler görülebilir. Febril nötropeni de bu nadir komplikasyonlardan biridir. 33 yaşında, ektopik gebelik nedeniyle tek doz metotreksat tedavisi sonrasında febril nötropeni, trombositopeni, dermatit, diyare, stomatit ve alopesi gelişen vakayı takdim ediyoruz. Tedavide folinik asit (lökovorin), granülosit koloni stimülan faktör, taze donmuş plazma, trombosit süspansiyonu ve intravenöz antibiyotikler kullanılmıştır. Vaka tedaviye iyi yanıt vermiş, klinik durumu ve laboratuvar değerleri 12 günde normale dönmüştür.
Anahtar Kelimeler: Gebelik, ektopik; 3',5'-diklorometotreksat; kazanılmış agranülositoz
Tur rkiye Klinik kleri J Gynecol Obs st 2013;23(4):258-60
ctopic pregnancy is observed in 1-2% of all pregnancies. 1 While the incidence and mortality/morbidity rate of ruptured ectopic pregnancy is high, almost all of the patients diagnosed with ectopic pregnancy are treated either with surgery or medical treatment. Till 1980's, with the introduction of early diagnosis of ectopic pregnancy, medical management with methotrexate (MTX) has been performed. 2
MTX is a folic acid antagonist, it inhibits DNA synthesis and cell proliferation. It is used in the treatment of neoplasias, psoriasis, and rheumatoid arthritis. It may be used parenterally or locally, with single dose or multidose regimens in the management of ectopic pregnancy. Main side effects are mild side effects such as mucositis, stomatitis, diarrhea.
Myelosuppression is the major dose-limiting side effect of high-dose MTX. Rarely, with lowdose treatment, as used in rheumatoid arthritis, pancytopenia may develop. 3 Occasionally, anemia, leukopenia, or thrombocytopenia may occur without significant reductions in other cell lines.
Here we report a case of febrile neutropenia after single dose MTX therapy for medical management of ectopic pregnancy for the first time in the literature as far as we know.
The definition of neutropenia varies from institution to institution, but severe neutropenia is usually defined as absolute neutrophil count less than 500 cells/microL. 4 The Infectious Diseases Society of America defines fever in neutropenic patients as a single oral temperature of >38.3°C or a temperature of >38.0°C sustained for >1 hour. 4
CASE REPORT
33-year-old gravida 5 para 2 patient, applied with delay in the menstrual period and vaginal spotting. Her medical history was unremarkable except for three ectopic pregnancies treated laparoscopically. Gynecologic examination revealed minimal vaginal spotting and pelvic tenderness. Transvaginal sonography showed an endometrium 4 mm in thickness and a 3-cm mass in the right adnexal area without any fetal pole and no free fluid. β-hCG was 2080 mIU/mL, hematocrit 34.3%, leukocyte 6.400/mL, thrombocyte 325 000, blood urea nitrogen (BUN): 17 mg/dL, creatinine 0.8 mg/dL, aspartate aminotransferase (AST): 16 IU/L, alanine aminotransferase (ALT): 10 IU/L, lactate dehydrogenase (LDH): 493 IU/L. The treatment options were discussed and the patient preferred medical treatment with single dose MTX. The weight and height of the patient was 55 kg and 1.65 m, respectively and intramuscular 75 mg single dose MTX according to 50mg/m 2 regimen was administered. On the fifth day of the MTX treatment, oral ulcers, dermatitis on the scalp and face, alopecia, and diarrhea developed. βhCG was 1799 mIU/mL. No pathology was observed in the blood count. Intravenous 40-mg/day methylprednisolone and oral diphenoxylate hydrochloride were begun in addition to intramuscular 7.5 mg folinic acid. On the ninth day of MTX treatment, the patient developed fever up to 39.4˚C; hematocrit was 24.8%, leukocyte 600/mL, and thrombocytes 92 000/mL. Liver and renal function tests were normal. Subcutaneous thirty million units of filgrastim (granulocyte colony stimulating factor) twice a day was begun with the diagnosis of febrile neutropenia in addition to intramuscular calcium folinate 4x15 mg, intravenous meropenem 3x500 mg and teicoplanin 1x400 mg, and oral nystatin 4x1. On the 12 th day of MTX treatment, as the patient still had intermittent fever and hematocrit was 22.4%, leukocyte 500/mL, thrombocyte 10 000/mL and the blood, urine and stool cultures were sterile, bone marrow biopsy was performed. β-hCG was 141.8 mIU/mL at this time. Bone marrow biopsy revealed agranulocytosis and cellular hypoplasia in all three cell lines and folic acid deficiency. Fresh frozen plasma and thrombocyte suspensions were administered three times a day and six days afterwards the fever subsided and laboratory results normalized and the β-hCG was negative.
DISCUSSION
MTX treatment can be administered as a single dose or multidose regimen. The dosage used for the treatment of ectopic pregnancy is far less than used for other indications; usually doses are given intramuscularly in 50 mg/m 2 or 1 mg/kg regimens. 7 MTX is eliminated from the kidneys. 8 Contraindications to MTX treatment are being hemodynamically unstable, ruptured ectopic pregnancy, hematologic, hepatic, and renal pathologies, immune insufficiency, active pulmonary disease, peptic ulcer, hypersensitivity to MTX, coexistent viable intrauterine pregnancy, and lactation. 7
With the introduction and common use of early pregnancy ultrasonography, the early detection of ectopic pregnancy before rupture and its medical treatment has been possible. The success of medical treatment is as high as 90% in hemodynamically stable cases with β-hCG less than 5000 mIU/mL and without fetal cardiac activity. 5,6
Side effects related to MTX are generally mild and rarely observed. Multidose protocol leads to
more side effects when compared to single dose protocol. 5 40% of the cases receiving multidose protocol develop side effects as compared to 30% of cases receiving single dose protocol. Single dose protocol is cheaper, requires less monitorization, and there is no need for folinic acid administration.
Our case is unique in that, she developed febrile neutropenia and thrombocytopenia after single dose MTX treatment for medical management of ectopic pregnancy. Folinic acid in addition to granulocyte colony stimulating factor administration is critical in the treatment of this pathology. Folinic acid diminishes the toxicity of
Association between MTX side effects and methylenetetrahydrofolate reductase (MTHFR) polymorphism have been evaluated. In a metaanalysis of 14 studies investigating MTHFR C677T polymorphism in patients with acute lymphoblastic leukemia, MTHFR C677T polymorphism was significantly associated with increased risk of MTX-induced liver toxicity, myelosuppression, oral mucositis, gastrointestinal toxicity, and skin toxicity. 10 The authors suggested that genotyping of MTHFR polymorphism prior to treatment with MTX is likely to be useful with the aim of tailoring MTX therapy and thus reducing the MTX-related toxicities.We did not analyze MTHFR polymorphism in our patient, but it may be speculated that this might be a reason for this complication despite single dose MTX treatment. However, we believe that it is not feasible to check MTHFR polymorphism prior to treatment with MTX for ectopic pregnancy in order to assess the risk of complications.
Myelosuppression is mostly observed in high dose MTX treatment as used in the treatment of rheumatoid arthritis. 3 There is only one case of myelosuppression following multidose treatment for medical management of ectopic pregnancy reported in the literature. 8 This case developed highgrade fever, vomiting, melena, oral ulcerations, pneumonitis, subconjunctival haemorrhages and skin pigmentation, even severe third space fluid collection and shock. Her hematological picture showed severe neutropenia and thrombocytopenia. She was managed in the intensive care unit with ventilatory support, high-dose leucovorin and injection filgastrim.
In conclusion, single dose MTX treatment used for the medical management of ectopic pregnancy is highly successful; but may lead to life-threatening complications, especially in patients with MTHFR polymorphism.
1. Centers for Disease Control and Prevention (CDC). Ectopic pregnancy--United States, 1990-1992. MMWR Morb Mortal Wkly Rep 1995;44(3):46-8.
by the infectious diseases society of america. Clin Infect Dis 2011;52(4):e56-93.
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4. Freifeld AG, Bow EJ, Sepkowitz KA, Boeckh MJ, Ito JI, Mullen CA, et al.; Infectious Diseases Society of America. Clinical practice guideline for the use of antimicrobial agents in neutropenic patients with cancer: 2010 update
3. Gutierrez-Ureña S, Molina JF, García CO, Cuéllar ML, Espinoza LR. Pancytopenia secondary to methotrexate therapy in rheumatoid arthritis. Arthritis Rheum 1996;39(2):272-6.
5. Barnhart KT, Gosman G, Ashby R, Sammel M. The medical management of ectopic pregnancy: a meta-analysis comparing "single dose" and "multidose" regimens. Obstet Gynecol 2003;101(4):778-84.
8. Dasari P, Sagili H. Life-threatening complications following multidose methotrexate for medical management of ectopic pregnancy. BMJ Case Rep 2012;2012.
6. Morlock RJ, Lafata JE, Eisenstein D. Cost-effectiveness of single-dose methotrexate compared with laparoscopic treatment of ectopic pregnancy. Obstet Gynecol 2000;95(3):40712.
7. Practice Committee of the American Society for Reproductive Medicine. Medical treatment of ectopic pregnancy. Fertil Steril 2006;86(5 Suppl 1):S96-102.
10. Yang L, Hu X, Xu L. Impact of methylenetetrahydrofolate reductase (MTHFR) polymorphisms on methotrexate-induced toxicities in acute lymphoblastic leukemia: a meta-analysis. Tumour Biol 2012;33(5):1445-54.
MTX; however may decrease the efficacy of MTX in high doses. 9
9. Shiroky JB, Neville C, Esdaile JM, Choquette D, Zummer M, Hazeltine M, et al. Low-dose methotrexate with leucovorin (folinic acid) in the management of rheumatoid arthritis. Results of a multicenter randomized, doubleblind, placebo-controlled trial. Arthritis Rheum 1993;36(6):795-803.
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The Bylaws for Ramsey County Children's Mental Health Collaborative Article 1
Name and Purpose:
Section 1.1 Name: The name of the organization will be the Ramsey County Children's Mental Health Collaborative and hereinafter will be referred to as "RCCMHC".
Section 1.2 JPA Partners: RCCMHC was formed pursuant to a Joint Powers Agreement by and between RAMSEY COUNTY, through its Human Services and Community Corrections departments, the St. Paul – Ramsey County Department of Public Health; ST. PAUL PUBLIC SCHOOLS DISTRICT 625 (the "Joint Powers Agreement"), for the purpose as set forth therein.
Section 1.3 Minnesota Collaboratives and Purpose: In 1993, the State Legislature enacted legislation that established Collaboratives as special districts in Minnesota. Collaboratives are responsible for engaging systems and families to identify needs, develop systems of care, and assure that services cut across traditional system boundaries. Collaboratives promote promising prevention and early intervention strategies through an expansive public health approach encompassing all developmental dimensions of well-being (cognitive, social, emotional/behavioral, physical, environmental, economic, spiritual, and educational/vocational).
Collaboratives were envisioned to reduce fragmentation and enhance funding flexibility by creating a multi-agency system of care in which the family is a full partner. Minnesota Statutes directs children's mental health collaboratives to establish an integrated mental health system that targets the complex, multisystem needs of youth with (or at risk for) mental health disorders and their families. Collaboratives report outcomes to the State.
1.3.1 State-Mandated Partners: Mandated partners for a children's mental health collaborative are: one county, one school district or special education cooperative, one mental health entity, and one juvenile justice or corrections. Collaboratives who use Local Collaborative Time Study dollars (LCTS) must also include Public Health and any school district/county agency that participates in the time study for that Collaborative.
Section 1.4 Minnesota Statutes: Minnesota Collaboratives are governed by State Statute. Statues that guide the work of children's mental health collaboratives include but are not limited to:
1.4.1 Statutes directly related to Children's Mental Health Collaboratives
* Minn. Stat. § 124D.23 FAMILY SERVICES AND COMMUNITY-BASED COLLABORATIVES
* Minn. Stat. § 245.491 CITATION; DECLARATION OF PURPOSE.
* Minn. Stat. § 245.492 DEFINITIONS
* Minn. Stat. § 245.493 LOCAL CHILDREN'S MENTAL HEALTH COLLABORATIVE.
* Minn. Stat. § 245.4931 INTEGRATED LOCAL SERVICE SYSTEM.
* Minn. Stat. § 245.4932 REVENUE ENHANCEMENT; AUTHORITY AND RESPONSIBILITIES
* Minn. Stat. § 245.495 ADDITIONAL FEDERAL REVENUES.
1.4.2 Statutes indirectly related to Children's Mental Health Collaboratives
* Minn. Stat. § 4.045 CHILDREN'S CABINET
* Minn. Stat. Ch. 13 MINNESOTA GOVERNMENT DATA PRACTICES ACT
* Minn. Stat. § 245.4875 LOCAL SERVICE DELIVERY SYSTEM
(MGDPA)
* Minn. Stat. § 471.59 JOINT EXERCISE OF POWERS
* Minn. Stat. Ch. 13D OPEN MEETING LAW
* Minn. Stat. § 179A.60 JOINT POWERS AGREEMENTS
* Minn. Stat. § 179A.03 DEFINITIONS (Public Employment Labor Relations)
Section 1.5 RCCMHC History and Purpose: RCCMHC was established in 1997 to engage systems and families in the development and sustainment of responsive, integrated, and coordinated service delivery for youth with Emotional Disturbance (ED) or Serious Emotional Disturbance (SED) in Ramsey County.
Today, RCCMHC brings stakeholders with mutual interests together to exchange information, plan jointly, align resources, and make systems-level decisions. RCCMHC builds on member strengths, addresses community challenges, and leverages resources and capabilities such as: funds, services, technologies, ideas, and expertise to coordinate and develop:
* cross-system services/supports that align with its core mission and goals
* community capacity building and workforce development trainings for youth/family service providers and policy makers
* family and community education, outreach, and engagement
1.5.1 Values: Core values provide the foundation which drives the work of RCCMHC. Services and supports should be: Accessible, Consumer-Directed, Culturally Affirming and Responsive; Linguistically Appropriate, Data-Driven, Individualized, Strengths-Based, Trauma-Informed, and Wellbeing- Focused.
1.5.2 Vision: Ramsey County youth will have the strengths, skills, relationships, supports, and opportunities that they need to experience mental health and wellbeing.
1.5.3 Mission: RCCMHC will work across systems and with families to meet the complex needs of youth with or at risk for emotional disturbance (ED) or serious emotional disturbance (SED).
1.5.4 Goals: The goals of the RCCMHC are: 1) A responsive children's mental health delivery system; 2) health equity; and 3) youth and whole-family wellbeing.
Article 2
The Governing Board: Structure and Responsibilities
Section 2.1 Board Structure: The Governing Board will be comprised of sixteen members who have been elected, nominated or appointed to represent the various constituents of the RCCMHC.
Section 2.2 Board Authority: The Governing Board is the ultimate decision-making body for the RCCMHC.
Section 2.3 Major Duties of the Governing Board: The major duties of the Governing Board include, but are not limited to, the following:
2.3.1 Define and safeguard the organizational mission, vision, and values of the RCCMHC.
2.3.2 Assess needs and establish strategic direction.
2.3.3 Develop policies and planning objectives.
2.3.4 Monitor outcomes and metrics to evaluate RCCMCH impact with respect to: 1) cross-system services and supports; 2) family and community engagement; and 3) community capacity building/workforce development.
2.3.5 Assure compliance with all statutes concerning Collaboratives as well as laws, regulations, and ethical practices, including review and approval of any external reporting done on behalf of RCCMHC.
2.3.6 Oversee finances and protect assets, including development of the annual budget and operating plan.
2.3.7 Account to constituents as identified in the Joint Powers Agreement and to the public for the services provided by the RCCMHC and for its expenditures of funds.
2.3.8 Participate in RCCMHC fund and resource development.
2.3.9 Engage in community relations by representing RCCMHC to stakeholders and acting as a "RCCMHC ambassador."
2.3.10 Select, support, direct, evaluate, and determine compensation for the Executive Director.
2.3.11 Appoint committee chairs and recommend with the input of the Executive Director who will serve on committees.
2.3.12 Chair or serve on committees and task groups and take on special assignments
Section 2.4 Board Member Characteristics and Qualifications:
2.4.1 Board members must support and champion the vision and values of RCCMHC.
2.4.2 Board members must perform the following service requirements:
1. Consistently attend Governing Board meetings and review Board documents (2-4 hours per month);
2. Participate in one annual Board retreat/strategic planning session;
3. Potentially chair a standing committee;
4. Potentially serve on the Executive Committee; and
5. Serve on a task group or committee as needed.
2.4.3 Board members must have the ability to work collaboratively.
2.4.4 Board members must value youth and caregivers as equal partners with providers and policy makers. Board members must be committed to engaging family and community members as invested stakeholders and systems builders.
Section 2.5 Board Membership: The Governing Board will vote to approve all new Board members. The Governing Board shall have 16 members as stated in Sections 2.5.1, 2.5.2, and 2.5.3.
2.5.1 Board Members-Appointed: The following Board positions will be appointed by their respective agencies, districts or boards:
1. One Ramsey County Commissioner;
2. One representative from Ramsey County Social Services;
3. One representative from Ramsey County Public Health;
4. One representative from Ramsey County Corrections;
5. One representative from Mounds View Public Schools, Independent School District No. 621;
6. One representative from North St. Paul-Maplewood-Oakdale, Independent School District No. 622;
7. One representative from Roseville Area Schools, Independent School District No. 623;
8. One representative from White Bear Lake Area Schools, Independent School District No. 624;
9. One representative from St Paul Public Schools, Independent School District No. 625; and
10. One representative from Northeast Metro Intermediate School District No. 916.
2.5.2 Board Members- Elected: The following Board positions will be elected by their respective committees:
1. Both co-chairs of the Family Services Committee (parent/caregiver);
2. The chair of the Advisory Council; and
3. The chair of the Cultural Outreach Committee.
2.5.3 Board Members- Nominated: The following Board members will be nominated by the Board or Nominating Committee:
1. One member from a children's mental health entity; and
2. One youth member (up to age 24).
2.5.4 Board Alternates:
* Governing Board members may choose to pre-designate an alternate. All alternates must be employees or active members of the agency, school district, or constituency group that is represented by the Board member. All designated alternates shall be filed in writing with RCCMHC. No Board member may send an alternate for more than 40 percent of the scheduled Governing Board meetings per year.
* Board members may not designate alternates to perform Board Officer tasks.
Section 2.6 Board Terms and Limits: Governing Board members will be appointed, elected, or nominated for a term of three years. The exception to this rule is that youth Board members may be nominated for a one-year term. Elected and nominated Board members shall have a term limit of two consecutive three-year terms.
Board members' terms will begin initially as one, two, or three-year terms that transition into three-year staggered terms on the following schedule:
| Ramsey County Commissioner | Youth (up to age 24) | Ramsey County Social Services |
|---|---|---|
| Ramsey County Public Health | | Co-Chair #1 of the Family Service Committee |
| Mounds View Public Schools District No. 621 | | North Saint Paul Maplewood Oakdale School District No. 622 |
| Roseville Area School District No. 623 | | White Bear Lake Area Schools District No. 624 |
Section 2.7 Officers of the Board: Officers of the Board will act only in service to the Board and no individual officer may act in place of the Board except when acting together as the Executive Committee in accordance with these Bylaws. The Officers of the Board will be comprised of Board members who have agreed to serve in the following positions each of whom will be elected by the Board to serve for a oneyear term and may be re-elected.
2.7.1 Board Chair: The Chair presides over Board activities to ensure that the Board follows its own rules and those imposed upon it by statute or regulation. The Chair has the following responsibilities:
* Oversees Executive Committee meetings and serves as a member of the Executive Committee;
* Offers input on the agenda to the Executive Director;
* Signs RCCMHC contracts;
* Acts as a check signer for the RCCMHC bank account;
* Approves the Executive Director's timesheet;
* Works in partnership with the Executive Director to make sure Board resolutions are carried out;
* Calls special meetings if necessary;
* Oversees searches for a new Executive Director;
* Coordinates the Executive Director's annual performance evaluation with the Executive Committee;
* Works with the Nominating Committee to recruit new board members;
* Periodically consults with Board members on their roles and helps them assess their performance; and
* Acts as a spokesperson for the RCCMHC;
* Serves as an ex-officio member of all committees.
2.7.2 Vice-Chair: It will be presumed, but not required, that the Vice-Chair will be elected to the position of Board Chair following the expiration of the final term of the preceding Chair. The Vice-Chair has the following responsibilities:
* Serves as a member of the Executive Committee;
* Carries out special assignments as requested by the Board Chair;
* Acts as a check signer for the RCCMHC bank account;
* Understands the responsibilities of the Board Chair and performs these duties in the Chair's absence; and
* Participates as a vital part of the Board leadership.
2.7.3 Treasurer: The Treasurer will monitor the financial activities of RCCMHC and ensure that complete and accurate records are kept of all RCCMHC financial matters in accordance with appropriate and financially sound record keeping and accounting practices. The Treasurer has the following responsibilities:
* Understands financial accounting- especially for government entities;
* Serves as a member of the Executive Committee;
* Manages, with the Finance Committee, the Board's review of and action related to the Board's financial responsibilities;
* Serves as the Chair of the Finance Committee;
* Works with the Executive Director and the Office Manager to ensure that appropriate financial reports are made available to the Finance Committee and Board as needed;
* Presents monthly Treasurer's reports to the Board;
* Reviews the annual audit with the Executive Director and answers Board members' questions about the audit; and
* Presents the annual budget to the Board for approval;
* Participates as a vital part of the Board leadership.
2.7.4 Secretary: The Secretary will ensure that all secretarial functions are performed for the Board and Executive Committee. The Secretary has the following responsibilities:
* Serves as a member of the Executive Committee;
* Announces if quorum has been met with respect to Board and Executive Committee meetings (conducts roll call as needed);
* Ensures the safety and accuracy of all Board records;
* Takes minutes of Board and Executive Committee meetings and submits the minutes to the Executive Director in a timely manner;
* Assumes responsibilities of the Chair in the absence of the Board Chair, Vice-Chair, or Past Board Chair;
* Works with the Executive Director to ensure minutes, agendas and meeting notices are distributed and posted online in a timely manner; and
* Participates as a vital part of the Board leadership.
2.7.5 Past Board Chair: The most immediate Past Board Chair will advise the current Board, Board Chair, and Executive Director on RCCMHC history and procedure. The Past Board Chair has the following responsibilities:
* Serves as a member of the Executive Committee;
* Carries out special assignments as requested by the Board Chair;
* Chairs the Nominating Committee;
* Assumes responsibilities of the Chair in the absence of the Board Chair or Vice-Chair; and
* Participates as a vital part of the Board leadership.
Article 3 Committees of the Board
Section 3.1 Function of Standing Committees: Committees serve an advisory function to the Board. They are tasked by the Board to support the work of the RCCMHC. They do not speak or act for the Board unless such authority is delegated, time-limited and for a specific purpose. Committees have no authority to direct staff although they may ask the Board to allocate resources to support committee activities. Committees isolate the key issues requiring Board consideration, propose alternative actions, present implications and make recommendations to the Board for a decision.
Section 3.2 Composition of Standing Committees: The Board will appoint a Board member as the Chair of the Impact and Outcomes Committee and the Appropriations Committee. The Advisory Council, Family Service Committee, and Cultural Outreach Committee will elect their own chairs/representatives to the Board pending final Board approval.
The composition of the committees will be representative of the Board and where possible of the members of the community at large. The Board will appoint members to the Nominating Committee, Finance Committee, Impact and Outcomes Committee, and Appropriations Committee for one-year terms. The Cultural Outreach Committee, Family Services Committee, and Advisory Council will be open committees. These open committees may self-limit membership and determine the use of stipends with oversight and approval of the Board.
Section 3.3 Ad Hoc Committees: In addition to the Standing Committees set forth below, the Board may establish ad hoc committees, which will serve as temporary committees formed for specific needs.
Section 3.4 Standing Committees and Committee Charges: With the understanding that a Standing Committee is one with a continued existence and is formed to do its assigned work on an ongoing basis, the RCCMHC, acting through the Board will maintain the following standing committees:
3.4.1 The Executive Committee:
Purpose:
* As tasked by the Board, the Executive Committee may act on behalf of the Board in between Board meetings.
* It is responsible for supervision of the day to day activities of the RCCMHC; including the activities of the Executive Director.
Structure:
* The Executive Committee has closed-membership. It is comprised of the officers of the Board-Chair, the Vice-Chair, the Secretary, and the Treasurer as well as the Past-Chair.
* The Board Chair chairs the Executive Committee.
Responsibilities/ Tasks:
* Assists the Executive Director in conducting new Board member orientation.
* Conducts the annual evaluation of the Executive Director.
Minutes and Agendas:
* RCCMHC staff will create an agenda with input from Committee members and the Committee Chair. Executive Committee meeting reminders and announcements will be sent out by the Secretary or RCCMHC staff. Minutes of Executive Committee meetings will be taken by the Secretary or by an appointed recording secretary. Copies of the agendas and minutes will be maintained at the RCCMHC office.
Quorum:
* A minimum of three Executive Committee members must be present for a quorum to be convened. RCCMHC Staff are not to be considered part of the quorum.
3.4.2 The Nominations Committee:
Purpose:
* The Nominations Committee is responsible for developing and recommending to the Board potential candidates for election to the Board that have the appropriate skill set, experience and diversity necessary to ensure balanced community representation as required by the Joint Powers Agreement and effective governance.
Structure
* The Past Chair of the Board chairs the Nominations Committee.
* The Board will annually appoint the other members of the Nominations Committee, which should include both Board members, and members from the community at large.
3.4.3 Impact and Outcomes Committee:
Purpose:
* The Impact and Outcomes Committee advises the Governing Board on current and future RCCMHC-funded services and supports using both qualitative and quantitative data.
* It also advises the Governing Board on how to implement datadriven and practice-informed services that produce best outcomes for youth and families.
Structure
* The Governing Board will appoint a Board member as the Impact and Outcomes Committee Chair.
* The Board will annually appoint the other members of the Committee, which should include both Board members, and members from the community at large.
Responsibilities/ Tasks
* The Committee will work with RCCMHC staff to develop data collection and evaluation tools.
* The Committee will be responsible for supervising and monitoring data collection and data management by RCCMHC staff and other committees.
* The Committee will work with RCCMHC staff or a contracted research/evaluation team to conduct evaluation and analysis of data.
* The Committee will work with RCCMHC staff or a contracted research/evaluation team to review and monitor progress and outcomes reports from RCCMHC grantees. The Committee will report grantee progress and make recommendations to the Governing Board.
* At least one member of the Impact and Outcomes Committee must serve on the Appropriations Committee
* The Committee will work with RCCMHC staff or a research/evaluation team to develop impact/outcomes reports for the Governing Board, wider membership, and the community.
* The Committee will use RCCMHC's strategic plan, input from the community, and current research to make recommendations to the Board on services/activities that RCCMHC should fund/support.
Minutes and Agendas:
* RCCMHC staff will create agendas with input from Committee members and the Committee Chair. Meeting reminders and announcements will be sent out by a member of the Committee or RCCMHC staff. Minutes of Committee meetings will be taken by a Committee member or by an appointed recording secretary. Copies of the agendas and minutes will be maintained at the RCCMHC office.
Quorum
* A minimum of three committee members must be present for a quorum to be convened. RCCMHC staff are not considered part of the quorum.
3.4.4 Cultural Outreach Committee:
Purpose:
* The Cultural Outreach Committee advises the Governing Board on services, policies, procedures, and systems-building practices to ensure they are culturally affirming and responsive as well as linguistically appropriate.
Structure:
* The Cultural Outreach Committee will elect a Committee Chair who will also serve as a voting member of the Governing Board with a three-year term.
* The Cultural Outreach Committee is an open committee. As such, its members may self-limit membership and determine the use of stipends with oversight and approval of the Board.
Responsibilities/ Tasks:
* The Committee will engage cultural communities including: ethnic groups, faith groups, civic groups, and other similar types of communities.
* The Committee will work with local providers and cultural communities to identify needs, to analyze results, and to develop recommendations for addressing service gaps.
* The Committee will work to enhance cultural humility among community providers through outreach and education, including conferences, dialogues, publications, and trainings.
* The Committee will advise the Governing Board on evidencebased, practice-informed, and community-defined approaches, including promising practices which may be new or emerging.
Minutes and Agendas:
* RCCMHC staff will create agendas with input from Committee members and the Committee Chair. Meeting reminders and announcements will be sent out by a member of the Committee or RCCMHC staff. Minutes of Committee meetings will be taken by a Committee member or by an appointed recording secretary. Copies of the agendas and minutes will be maintained at the RCCMHC office.
Quorum:
* A minimum of three Committee members must be present for a quorum to be convened. RCCMHC staff are not considered part of the quorum.
3.4.5 Finance Committee:
Purpose:
* The Finance Committee advises the Governing Board on RCCMHC finances.
* The Committee is responsible for supervising the fiscal management activities of the RCCMHC staff, monitoring the budget and independent auditors, and making budget recommendations to the Board.
Structure:
* The Treasurer of the Governing Board will serve as the Committee Chair
* The Board will annually appoint the other members of the Committee, which should include both Board members, and members from the community at large.
Responsibilities/ Tasks:
* The Committee will review detailed RCCMHC financial statements monthly and work with the Executive Director and Office Manager to ensure that appropriate financial reports are made available to the Board.
* The Committee will review and monitor expense reports from RCCMHC grantees.
* At least one member from the Finance Committee must serve on the Appropriations Committee.
* The Committee will approve a Treasurer's Report to be presented to the Board on a monthly basis.
* The Committee will work with the Executive Director and Office Manager to conduct a mid-year budget review and report to the Board.
* The Committee will develop the annual budget for Board approval.
* The Committee will review the annual audit with the Executive Director and Office Manager.
Minutes and Agendas:
* RCCMHC staff will create agendas with input from Committee members and the Committee Chair. Meeting reminders and announcements will be sent out by a member of the Committee or RCCMHC staff. Minutes of Committee meetings will be taken by a Committee member or by an appointed recording secretary. Copies of the agendas and minutes will be maintained at the RCCMHC office.
Quorum:
* A minimum of three Committee members must be present for a quorum to be convened. RCCMHC staff are not considered part of the quorum.
3.4.6 Family Service Committee:
Purpose:
* The Family Service Committee advises the Governing Board on services, policies, procedures, and systems-building practices that affect youth and families.
* The Committee provides a youth/caregiver perspective on effective mental health services that are strength-based, trauma-informed, and family-centered.
Structure:
* The Family Services Committee will elect two Committee Co-Chairs who will both serve as voting members of the Governing Board with three-year terms.
* The Family Service Committee is an open committee. As such, its members may self-limit membership and determine the use of stipends with oversight and approval of the Board.
Responsibilities/ Tasks:
* The Committee will work with RCCMHC staff to coordinate and develop family and community engagement workshops and trainings, legislative advocacy, education, and outreach.
* The Committee will periodically conduct or participate in the coordination of needs assessments.
* The Committee will advise the Governing Board on evidencebased, practice-informed, and community-defined approaches, including promising practices which may be new or emerging.
* The Committee will provide recommendations for specific services, policies, or procedures as directed by the Governing Board.
Minutes and Agendas:
* RCCMHC staff will create agendas with input from Committee members and the Committee Chair. Meeting reminders and announcements will be sent out by a member of the Committee or RCCMHC staff. Minutes of Committee meetings will be taken by a Committee member or by an appointed recording secretary. Copies of the agendas and minutes will be maintained at the RCCMHC office.
Quorum:
* A minimum of three committee members must be present for a quorum to be convened. RCCMHC staff are not considered part of a quorum.
3.4.7 Advisory Council:
Purpose:
* The Advisory Council is an opportunity for the community (providers, leaders, and families) to guide and inform the work of the RCCMHC through recommendations to the Governing Board.
Structure:
* The Advisory Council will elect a Committee Chair who will also serve as a voting member of the Governing Board with a three-year term.
* The Advisory Council is an open committee. As such, its members may self-limit membership and determine the use of stipends with oversight and approval of the Board.
Responsibilities/ Tasks:
* The Advisory Council will advise the Governing Board on evidencebased, practice-informed, and community-defined approaches, including promising practices which may be new or emerging.
* The Advisory Council will work to identify needs and develop recommendations for addressing service gaps.
* Advisory Council members will network and share information with each other. Members will collaborate in cross-disciplinary training to increase commonality in purpose and improve service coordination and integration.
* Advisory Council members will collaborate to identify and share resources across systems.
Minutes and Agendas:
* RCCMHC staff will create agendas with input from Committee members and the Committee Chair. Meeting reminders and announcements will be sent out by a member of the Advisory Council or RCCMHC staff. Minutes of Advisory Council meetings will be taken by an Advisory Council member or by an appointed recording secretary. Copies of the agendas and minutes will be maintained at the RCCMHC office.
Quorum:
* A minimum of three Advisory Council members must be present for a quorum to be convened. RCCMHC staff are not considered part of a quorum.
3.4.8 Appropriations Committee:
Purpose:
* The Appropriations Committee will review funding requests and proposals as well as any supplementary financial or program materials in order to make informed funding recommendations to the Governing Board.
Structure:
* The Governing Board will appoint a Board member to serve as the Chair of the Appropriations Committee.
* The Board will annually appoint the other members of the Committee, which can include but are not limited to:
o Representatives from RCCMHC system partners – school districts, Ramsey County Corrections, Ramsey County Public Health, Ramsey County Social Services, and a children's mental health entity;
o A minimum of two caregivers of youth with ED or SED, two youth with ED or SED, or a combination of youth and caregivers;
o A member of the Impact and Outcomes Committee; and
o A member of the Finance Committee.
Responsibilities/ Tasks:
* The Appropriations Committee will review, discuss, and score funding requests or proposals collectively.
* If necessary, Appropriations Committee members will individually and privately review and score funding requests or proposals prior to Committee meetings. Members will also review any supplementary financial or program materials necessary to make an informed decision.
* If necessary, the Appropriations Committee may conduct on-site visits with agencies that are requesting funding.
* The Appropriations Committee will make funding recommendations to the Governing Board.
Minutes and Agendas:
* RCCMHC staff will create agendas with input from Committee members and the Committee Chair. Meeting reminders and announcements will be sent out by a member of the Committee or RCCMHC staff. Minutes of Committee meetings will be taken by a Committee member or by an appointed recording secretary. Copies of the agendas and minutes will be maintained at the RCCMHC office.
Quorum:
* A minimum of six Committee members must be present for a quorum to be convened. RCCMHC staff are not considered part of a quorum.
Article 4 Policies of the Board and RCCMHC
Section 4.1 Board Attendance: Effectively carrying out the work of the Governing Board requires a commitment to attend all regularly scheduled monthly meetings of the Board. Elected and nominated Board members who are absent without prior notice and excuse, from 50% of scheduled meetings during any 12-month period will automatically be deemed to have resigned their position as a Board member. In the event such Board member wishes to be reinstated, a letter requesting such reinstatement must be sent to the Board within 10 days of receipt of the notice of deemed resignation from the Board. A decision on whether to allow such reinstatement will be voted on at the next meeting of the Board.
Section 4.2 Board and Committee Meeting Guidelines: The RCCMC Board will annually approve a meeting schedule. Meeting time and place will be determined in advance and circulated to all Board members. Board meetings will follow Robert's Rules of Order as agreed upon by the Board. RCCMHC Committees will set their own meeting schedules pending final approval by the Board. RCCMHC staff will create agendas with input from Board/Committee members and the Board/Committee Chairs.
Section 4.3 Board Member Removal: Any Board member, including the Chair, may be removed from the Governing Board with cause by the affirmative vote of 66 percent of all Board Members in attendance. Any vacancy occurring as a result of such removal will be filled by the appointment or election of a new Board member in accordance with the provisions of the Joint Powers Agreement regarding the appointment and election of Board members.
Section 4.4 Board Orientation: Board members are responsible for safeguarding the RCCMHC's mission and for developing/maintaining strategic direction, policies, and planning objectives. Board members are also responsible for the ongoing financial health of the RCCMHC and should understand the content and significance of the RCCMHC's financial statements and audit.
New Board members must complete a Board orientation with the Executive Director and at least one member of the Executive Committee. New Board Officers must complete an Officer Orientation with the Executive Director.
* Board members will receive the RCCMHC Policies and Procedures Manual and a brief orientation on its contents.
* Board members will also receive a brief orientation on how to read RCCMHC financial reports.
Section 4.5 Board Voting and Quorum Requirements.
4.5.1 Quorum: A quorum will be considered 50 percent of sitting Board members (filled positions).
4.5.2 Board Action: Any decision or action by the Board will require the approval of 66 percent of those Board members in attendance, once a quorum is present.
4.5.3 Voting: Voting and discussions will be conducted per Robert's Rules of Order as agreed upon by the Board.
* Every Governing Board member will have one vote.
* A member must be present (either in person or by interactive TV if conducted in accordance with Minnesota Statutes Section 13D.02) to cast a vote.
* No member may cast a vote on behalf of another member.
Section 4.6 Code of Conduct and Ethics: The Board will prescribe and adopt a code of conduct that encourages the development of a spirit of collective decision-making, shared objectives, and shared ownership of the purpose and mission of the RCCMHC. All Board members will sign the code of conduct annually and will be expected to fully comply with such code of conduct.
Section 4.7 Conflict of Interest Policy: The Board will adopt a formal conflict of interest policy to identify potential and perceived conflicts of interests and a procedure for dealing with them and will periodically review and update or modify such policy to ensure the achievement of those objectives.
All Board members and the Executive Director will sign the conflict of interest policy annually and must provide a full written disclosure of all direct or indirect fiscal interests that could potentially result in a conflict of interest. This written disclosure will be kept on file and will be updated as needed. Board members and the Executive Director must disclose any interests in a proposed transaction or decision that may create a conflict of interest. After disclosure, the Board member or the Executive Director will not be permitted to participate in the transaction or decision.
Should there be any dispute as to whether a conflict of interest exists, the Board will make a determination as to whether a conflict of interest exists with respect to the Board member or the Executive Director and will determine the appropriate response.
Section 4.8 Confidentiality Policy: The Board will prescribe and adopt a confidentiality policy. Occasionally, private or confidential information concerning RCCMHC, donors, staff or clients/consumers may be included in Board discussions. Board members should not disclose private or confidential information to anyone. All Board members will sign the confidentiality policy annually and will be expected to fully comply with this policy.
Section 4.9 Gift Policy: The RCCMHC requires that all Board members/officers, committee members/officers, and RCCMHC employees sign a Gift Policy form which indicates that they will decline to accept certain gifts, consideration, or remuneration from individuals or companies that seek to do business with RCCMHC or are a competitor of it. Exceptions exist for gifts of a value less than $50 which could not be refused without discourtesy and any gift approved by the Board. All Board members/officers, committee members/officers, and RCCMHC
employees will provide a signed statement at the end of each calendar year certifying they have not received any such gifts, entertainment, or other favors during the preceding year.
Section 4.10 Grievance Policy: In the event of a disagreement between two or more RCCMHC members, the parties must abide by the following dispute resolution protocol:
Step 1: Direct Communication: The parties in disagreement will attempt to work out the dispute through direct communication with each other. If the dispute is not resolved, then:
Step 2: Seek Formal Review: Either of the grieving parties may notify the Board, in writing, of the nature of the dispute and request the Board to hear the dispute at its next regular meeting and seek resolution at the meeting. The meeting will be subject to the Open Meeting Law, Minnesota Statutes Chapter 13D. If the dispute is not resolved at this step, then:
Step 3: Board to Recommend Solution: The Board will take the matter under advisement and, at its following regular meeting, recommend a solution for the participants in disagreement.
Step 4: Mediation or Arbitration: If the grieving parties do not accept the recommendation by the Board, the parties may mutually submit the dispute to a third-party mediator or agree to submit the dispute to binding arbitration. If the parties cannot mutually agree to submit the dispute to binding arbitration, or the mediation does not resolve the dispute, then either party will be free to seek whatever remedies may be available to it under applicable law.
Step 5: Final Communication: With the parties' consent, upon resolution of the dispute, a joint communication will be issued by the Board to all affected parties.
Section 4.11 Insurance: Whereas a collaborative organized as a separate legal entity may choose to procure its own insurance; RCCMHC will use its status as a Joint Powers Entity to procure and maintain its own General Liability and Directors/Officers' Liability Insurance.
Section 4.12 Minnesota Government Data Practices Act: The RCCMHC is subject to the Minnesota Government Data Practices Act, Minnesota Statutes Chapter 13 and must comply with the Act.
4.12.1 Financial Records: The financial records of the RCCMHC are public information and will be made available to the membership, the Governing Board, RCCMHC Committees, and the public.
4.12.2 Books and Records: All books and records of the RCCMHC will be open for inspection provided that personnel records of the staff or contractors, private confidential records on any individual, or other information subject to the regulations of the Minnesota Government Data Practices Act or other laws
governing the release of private or confidential data, will not be disclosed except in accordance with such laws.
Section 4.13 Open Meeting Law: The RCCMHC is subject to the Open Meeting Law, Minnesota Statutes Chapter 13D which generally applies to meetings of a quorum or more members of a governing body at which members "discuss, decide, or receive information" on issues relating to the official business of that governing body.
Section 4.14 Statutes, Regulations, and Rules: The RCCMHC will comply with any applicable state or federal statutes, regulations, and rules. These include, but are not limited, to the statutes set forth in Section 1.3 of these Bylaws.
Article 5 RCCMHC Staff
Section 5.1 Executive Director Purpose: The Executive Director will work, as directed by Governing Board to coordinate the day-to-day operations of the RCCMHC and to provide the primary interface between the RCCMHC staff and the Governing Board. The Executive Director will serve at the pleasure of the Board for such compensation as the Board may determine. Duties and responsibilities of the Executive Director will be outlined in an Executive Director job description to be developed and reviewed by the Executive Committee.
Section 5.2 Executive Director as Ex-Officio Observer: The Executive Director may attend all Board and committee meetings as an ex-officio non-voting member to ensure the coordination of staff operations with the policies and procedures envisioned by the Board and its committees.
Section 5.3 Removal of the Executive Director: The Executive Director serves at the discretion of the Board. The Executive Director will be notified at least 10 days in advance of a Governing Board meeting at which termination of the Director's appointment, employment, or contract is to be considered, and the Director will have the right to address the Governing Board at such meeting, prior to a vote on the Director's dismissal. Dismissal may be with or without cause.
Section 5.4 RCCMHC Staff: The duties of the RCCMHC staff will be to work as directed by the Executive Director with the Board, committee chairs, and community members to support the coordinated operations of the RCCMHC. The RCCMHC staff will be subject to RCCMHC employment policies and practices and will be compensated as agreed by the Board.
Article 6 Human Resources Management
Section 6.1 Employment Services and Human Resources Management: Whereas a Collaborative organized as a separate legal entity may choose to set up its own administrative capacity; RCCMHC will use its status as a Joint Powers Authority to manage its own payroll, benefits, employment services, and human resources.
6.1.1 Payroll Management: The Executive Director will work with the Executive Committee and the Finance Committee to direct the payroll activities of the RCCMHC Office Manager/Bookkeeper and the contracted payroll/HR agency.
6.1.2 Benefits Management: The Executive Director will work with the Executive Committee and the Finance Committee to secure benefits contracts and manage RCCMHC staff benefits.
6.1.3 Employment Services and HR: The RCCMHC will manage its own Employment Services and Human Resources. The Executive Director will work with the Executive Committee to direct the work of the contracted payroll/HR agency.
6.1.4 Policies and Procedures: The Executive Director will work with the Executive Committee and other committees (as needed) to establish RCCMHC policies and procedures including an employee handbook or personnel policy.
Article 7 Fiscal Management
Section 7.1 Fiscal Management: Whereas a collaborative organized as a separate legal entity may choose to set up its own administrative capacity; the RCCMHC will use its status as a joint powers authority to set up its own fiscal management. As such, the RCCMHC will hold its own funds. The RCCMHC staff will take responsibility for the fiscal duties of the RCCMHC including developing and maintaining an accounting and fiscal management system to support all claims for federal reimbursement, as well as a clear audit trail. The RCCMHC staff will report, claim, and receive payments, and will expend monies as directed by the Governing Board.
Section 7.2 Fiscal Duties and Responsibilities: The RCCMHC will maintain an Office Manager/Bookkeeper. Immediate oversight of this person will be by the Executive Director and the Finance Committee. Transparency and fiscal accountability will be ensured through regular reporting, adherence to financial control procedures, and an annual independent audit.
Section 7.3 Financial Control Procedure: The RCCMHC Executive Director, Board Chair, Vice Chair, and Treasurer are authorized check signers. Checks up to $1,000 require signature by the Executive Director and regular oversight by the Finance Committee. Checks over $1,000 and up to $10,000 require two signatures. All checks over $10,000 require three signatures.
Section 7.4 Receipt of County and Federal Funds: Ramsey County is designated by the State as the grantee agency for various grant funds including the Children's Mental Health Combined Grant and the Local RCCMHC Time Study (LCTS) monies. These various grants and LCTS monies are designated for payment of services under the governance of the RCCMHC. Therefore, the County will contract directly with the RCCMHC to distribute these funds and monies to RCCMHC.
Section 7.5 Policies and Procedures: The RCCMHC will establish and maintain a set of Fiscal Policies and Procedures which will be incorporated into a Fiscal Policy and Procedure Manual and will be reviewed annually by Finance Committee.
Section 7.6 Annual Budget: The Governing Board must approve the RCCMHC budget, and all expenditures must be within the budget. The Board must approve any change in major budget line items that are over $500. Regular reports are required to be submitted to the Board showing income, expenditures, and pending income.
Section 7.7 Fiscal Year: The fiscal year of the RCCMHC is January 1 – December 31 of each calendar year.
Article 8 Family and Community Engagement
Section 8.1 Definition: "Youth-Guided and Family-Driven Care" means that young people and families have the right to be empowered, educated, and given a primary decisionmaking role in the planning and delivery of their own services as well as the policies and procedures governing care in their communities. Going beyond mere input, "Family and Community Engagement" means that youth and caregivers are valued as equal partners with providers and policy makers and are actively engaged as invested stakeholders and systems builders in Ramsey County.
Section 8.2 Family and Community Involvement: RCCMHC will work across systems and with families/community at every level.
Individual Level:
* The RCCMHC will empower, educate, and provide resources and community connections so that caregivers and youth feel knowledgeable, supported and hopeful as they make mental health decisions.
Family and Community Level:
* The RCCMHC will engage families/community and work across systems to support and coordinate children's mental health outreach, education, training, and advocacy.
Systems Level:
* The RCCMHC will engage community leaders and promote community/family participation as equal voting partners on state and local oversight, advisory, and policy making groups- especially the RCCMHC's Governing Board, committees and related work groups.
Section 8.3 Caregiver Definition: Caregiver definitions and qualifications will vary based on the service or activity.
8.3.1 Board and Committees: To participate on a RCCMHC Board or a committee, the term "Caregiver" is operationally defined as "any Ramsey County parent, foster parent, or guardian of youth (birth to age 24) who has a mental health disorder."
Caregivers who have permanently lost custody of their child are not eligible to participate.
8.3.2 Outreach, Education and Respite Events: To participate in RCCMHC monthly trainings, outreach, education, and social/respite events, the term "Caregiver" is operationally defined as "any Ramsey County parent, foster parent, or guardian of youth (birth to age 24) who has a mental health disorder." Caregivers who have permanently lost custody of their child are not eligible to participate.
8.3.2 Advocacy Events: To participate in Advocacy events such as Children's Mental Health Day at the Capitol, the term "Caregiver" is operationally defined as "any Ramsey County parent, foster parent, or guardian of youth (any age) who has a child with a mental health diagnosis or is at risk for developing a mental health disorder."
Section 8.4 Compensation: The RCCMHC may develop caregiver and youth stipend and reimbursement policies to provide incentives and support to caregivers and youth participating in the RCCMHC. The RCCMHC will review and adopt compensation guidelines annually.
Article 9 Integrated Fund
Section 9.1 Integrated Fund Definition and Purpose: It is the intent of RCCMHC to establish and develop an Integrated Fund as required by State legislation (Minnesota Statutes Sections 245.491 to 245.495). The Integrated Fund is a pool of both public and private local, state, and federal resources as well as in-kind donations and services which are consolidated at the local level and used to develop and implement cross-system and integrated services or supports that meet locally agreed-upon goals for youth with mental health disorders and their families.
Section 9.2 Participation in the Integrated Fund: Each member agency must commit a portion of its funds, resources, or services annually to the Integrated Fund. Donations must directly benefit children or families involved in the RCCMHC. All contributions to the Integrated Fund must be authorized by the RCCMHC. Contributions will be under the control of the RCCMHC and are non-refundable. The RCCMHC will create and maintain Board-approved policies and procedures to guide fund and resource development.
Article 10 Amendments and Dissolution
Section 10.1 Amendment of Bylaws: These Bylaws may be amended as needed by a twothirds vote of the full membership of the Governing Board. Notice of the meeting and proposed changes must be provided in writing to all Governing Board
members not less than 10 days but not more than 30 days before the changes to the Bylaws are to be adopted.
Section 10.2 Dissolution of the RCCMHC: In the event that the RCCMHC is dissolved or terminates, it is agreed that the RCCMHC will follow the guidelines stated in the Minnesota Department of Human Services Memo dated April 27, 2009 regarding "Dissolution of Collaboratives," as it may be amended from time to time.
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Research Group on Soft Computing and Intelligent Information Systems http://sci2s.ugr.es
On the Combination of Evolutionary Algorithms and Stratified Strategies for Training Set Selection in Data Mining
J.R. Cano, F. Herrera, M. Lozano
Technical Report #SCI2S-2004-05 Nov, 2004
Dept. of Computer Science and Artificial Intelligence
E.T.S. de Ingenier´ıa Inform´atica. University of Granada
E-18071 Granada, SPAIN
Fax: +34 958 243317
On the Combination of Evolutionary Algorithms and Stratified Strategies for Training Set Selection in Data Mining ⋆
Jos´e Ram´on Cano a , Francisco Herrera b , Manuel Lozano b a Dept. of Computer Science, University of Ja´en, 23071, Ja´en, Spain b Dept. of Computer Science and Artificial Intelligence, University of Granada, 18071, Granada, Spain
Abstract
In this paper we present a new approach for training set selection in large size data sets. The algorithm consists on the combination of stratification and evolutionary algorithms. The stratification reduces the size of domain where the selection is applied while the evolutionary method selects the most representative instances. The performance of the proposal is compared with seven non-evolutionary algorithms, in stratified execution. The analysis follows two evaluating approaches: balance between reduction and accuracy of the subsets selected, and balance between interpretability and accuracy of the representation models associated to the these subsets. The algorithms have been assessed on large and huge size data sets from the UCI repository. The study shows that the stratified evolutionary instance selection consistently outperforms the non-evolutionary ones. The main advantages are: high instance reduction rates, high classification accuracy and models with high interpretability.
Key words: evolutionary algorithms, stratification, instance selection, training set selection, data mining
⋆ This work was supported by TIC2002-04036-C05-01 Email addresses: firstname.lastname@example.org (Jos´e Ram´on Cano), email@example.com (Francisco Herrera), firstname.lastname@example.org (Manuel Lozano).
1 Introduction
In Data Mining (DM ), the construction of classification rules from data is a basic problem ([1]). Data sets can be so large that it is impractical to train the classification rule using all available data.
Instance selection in an approach which selects a set of the available data for training [2]. The DM algorithm generates, using the subset selected as input, representation models which predict the outcome class of new unseen instances. In training set selection the objective is to select the highest quality training subsets so the models generated by DM algorithm presents the highest performances [3].
As training set selection can be viewed as a search problem, it could be solved using Evolutionary Algorithms (EAs [4]). In [5], the evolutionary instance selection is studied, comparing it performances with non-evolutionary ones, having as conclusion that evolutionary one outperforms the other methods.
When the size of data sets evaluated grows, the issue of scalability is present. The scaling up problem (due to this size) produces excessive storage requirement, increases times complexity and affects to generalization accuracy. In EAs these drawbacks are increased for the size of the chromosome used to represent the solutions in training set selection.
Our proposal face offto this drawbacks combining EAs and stratification. In large size data sets it is impractical to evaluate the algorithms over the complete data set so the stratification is a way to carry out the executions. Combining the subset selected per strata we can obtain the subset selected for the whole data set. The stratification reduces the data set size where the selection is carried out, while the EAs select the best local training subset.
The aim of this paper is to study the stratified evolutionary instance selection applied for training set selection in large size data sets. The approach is compared with non-evolutionary ones following the stratified strategy. As representative and efficient EA model has been chosen the CHC algorithm ([6]), considering the performances it offers in [5].
In order to do this, this paper is set out as follows. In Section 2, we introduce the main ideas about training set selection, describing the process and the scaling problem which affects it due to large size data sets. In Section 3, we describe the new approach proposed, giving details of how stratified EAs can be applied to the training set selection problem. In Section 4, we explain the methodology followed in the experiments. Section 5 deals with the results and the analysis in large and huge size data sets. Finally, in Section 6, we reach our conclusion.
2 Training Set Selection
This section describes the training set selection, showing the drawbacks introduced by the size of data sets evaluated. In Subsection 2.1 we situate the training set selection process in the data reduction domain. Subsection 2.2 is dedicated to describe the key points of training set selection. Finally, the Subsection 2.3 presents the scaling up problem induced by the large size of data sets.
2.1 Data Reduction
As we know, DM techniques learn models from the data sets ([7,8]). When the size of these data sets is large, DM techniques present problems to generate models which generalize properly. To address this situation, data reduction is a feasible way. The objective of data reduction methods is to select the most representative information from data set. This information, introduced as input in DM algorithm, can increase the models capabilities and generalization properties.
By means of data reduction the following
To describe data reduction, we consider data as flat file and composed by terms called attributes or features. Each line in the file consists of attribute-values and forms an instance in a multi-dimensional space defined by the attributes. Data reduction can be achieved in many ways:
* by selecting features [9], we reduce the number of columns in the data set;
* by discretizing feature-values [10], we reduce the number of possible values of discretized features;
* and by selecting instances [2,11], we reduce the number of rows in the data set.
We focus our attention in data reduction by means of Instance Selection (IS). In IS we want to isolate the smallest set of instances which enable us to predict the class of a query instance with the same quality as initial data set ([12]).
By reducing the "useful" data set size we can:
* Reduce space complexity.
* Decrease computational cost.
* Diminish the size of formulas obtained by a subsequent induction algorithm on the reduced and less noise data sets. This may facilitate interpretation
tasks.
IS raises the problem of defining relevance for a prototype subset. From the statistical viewpoint, relevance can be partly understood as the contribution to the overall accuracy, that would be e.g. obtained by a subsequent induction. We emphasize that removing instances does not necessarily lead to a degradation of the results: we have observed experimentally that a little number of instances can have performances comparable to those of the whole sample, and sometimes higher. Two reasons come to mind to explain such an observation. First, some noises or repetitions in data could be deleted by removing instances. Second, each instance can be viewed as a supplementary degree of freedom. If we reduce the number of instances, we can sometimes avoid over-fitting situations.
The training set selection is developed by means of IS algorithms. In the following subsection this process is described.
2.2 Model construction via Training Set Selection
There may be situations in which there are too much data and these data in most cases are not equally useful in the training phase of the learning algorithm. IS mechanisms have been proposed to choose the most suitable points in the data set to become instances for the training data set used by the learning algorithm.
Figure 1 shows the general framework for the application of the IS algorithm in training set selection. Starting from the data set, TR, the IS algorithm finds a suitable subset, TSS, then a learning or DM algorithm is applied to evaluate each subset selected (C4.5 in our case [13]) to obtain the model from the data set. This model is assessed using the test data set, TS.
2.3 The Scaling Up Problem
The majority IS algorithms cannot deal with large size data sets, In this section we study the effect of the data set size in both groups of algorithms, evolutionary and non-evolutionary.
To test the effect of increasing the data set size, we have evaluated large and huge size data sets. The main difficulties the algorithms have to face are the following:
* Efficiency. The efficiency of non-evolutionary IS algorithms evaluated is at least of Θ(n 2 ), being n the number of instances in the data set. There are another set of IS algorithms (like Rnn in [14], Snn in [15], Shrink in [16], etc.) but most of them present an efficiency order much greater than Θ(n 2 ). Logically, when the size grows, the time needed by each algorithm also increases.
* Resources. Most of the algorithms assessed need to have the complete data set stored in memory to carry out their execution. If the size of the data set was too big, the computer would need to use the disk as swap memory. This loss of resources has an adverse effect on efficiency due to the increased access to the disk.
* Generalization. Algorithms are affected in their generalization capabilities due to the noise and over fitting effect introduced by larger size data sets.
* Representation. EAs are also affected by representation, due to the size of their chromosomes. When the size of these chromosomes is too big, the algorithms experience convergence difficulties, as well as costly computational time.
These drawbacks produce considerable degradation in the behavior of IS algorithms. There is a group of them that can't be applied due to its efficiency (the case of Snn in [15] with Θ(n 3 )).
Algorithms evaluated directly over the whole large size data sets are unefficacy and unefficient.
3 The Evolutionary Stratified Instance Selection Algorithm
Trying to avoid the drawbacks previously mentioned, our proposal is directed towards the hybridation between EAs and stratified strategy. In Subsection
3.1 we offer the application of EAs in training set selection. The Subsection
3.2 describes the stratified strategy and its integration with IS algorithms.
3.1 Evolutionary Algorithms in Training Set Selection
The application of EAs in training set selection is accomplished by tackling two important issues: the specification of the representation of the solutions and the definition of the fitness function.
3.1.1 Representation
Let's assume a data set denoted TR with n instances. The search space associated with the instance selection of TR is constituted by all the subsets of TR. Then, the chromosomes should represent subsets of TR. This is accomplished by using a binary representation. A chromosome consists of n genes (one for each instance in TR) with two possible states: 0 and 1. If the gene is 1, then its associated instance is included in the subset of TR represented by the chromosome. If it is 0, then this does not occur.
3.1.2 Fitness Function
Let TSS be a subset of instances of TR to evaluate and be coded by a chromosome. We define a fitness function that combines two values: the classification performance (clas per) associated with TSS and the percentage of reduction (perc red) of instances of TSS with regards to TR:
The 1-NN classifier is used for measuring the classification rate, clas rat, associated with TSS. It denotes the percentage of correctly classified objects from TR using only TSS to find the nearest neighbour. For each object y in TSS, the nearest neighbour is searched for amongst those in the set TSS \{y}. Whereas, perc red is defined as:
The objective of the EAs is to maximize the fitness function defined, i.e., maximize the classification performance and minimize the number of instances obtained. In the experiments presented in this paper, we have considered the value α = 0.5 in the fitness function, as per a previous experiment in which we found the best trade-offbetween precision and reduction with this value.
The evolutionary model applied is the CHC algorithm, described in Subsection 4.1.2.
3.2 Stratification Strategy
This strategy divides the initial data set into strata. The strata are disjoints sets with equal class distribution. The number of strata will determine the size of them (see Figure 2).
Using the proper number of strata we can reduce significantly the set size where the selection will be applied. This situation allows us to avoid the drawbacks commented in Subsection 2.3.
Following the stratified strategy, initial data set D is divided into t disjoint sets Dj, strata of equal size, D1, D2, ..., and Dt. We maintain class distribution within each set in the partitioning process.
In the stratified strategy, the IS algorithm is applied in each Dj to obtain its DSj associated. The training set selected is obtained using the DSj (see equation (3)) and it is called Stratified Training Subset Selected (STSS).
The test set TS will be the TR complementary one in D.
After evaluate all strata by means of the IS algorithm, we have to reunite the results in a last phase, where the final subset is created (STSS).
The evolutionary stratified instance selection algorithm follows this model, using CHC as IS algorithm to select each DSj.
4 Experimental Methodology
We have carried out our study in training set selection using two size problems: large and huge. We evaluate the behavior of the algorithms increasing the size of the data set where they are assessed.
Section 4.1 is dedicated to describe the algorithms which appear in the experiments. In Section 4.2 we present the data sets evaluated. Section 4.3 shows the stratification and partition of the data sets that were considered, and finally, in Section 4.4 we describe the table contents that report the results.
4.1 Instance Selection Algorithms for experiments
The algorithms selected in this study are the most efficient ones shown in [5]. The nature of the algorithms, evolutionary or not let us classify them in two groups:
4.1.1 Non-Evolutionary Algorithms
In this subsection we present the summary of non-evolutionary IS algorithms included in this study. The algorithms used will be:
* Cnn ([17]) - It tries to find a consistent subset, which correctly classifies all of the remaining points in the sample set. However, this algorithm will not find a minimal consistent subset.
* Drop1 ([18]) - Essentially, this rule tests to see if removing an instance would degrade leave-one-out cross-validation generalization accuracy, which is an estimate of the true generalization ability of the resulting classifier.
* Drop2 ([18]) - Drop2 changes the order of removal of instances. It initially sorts the instances in TR by the distance to their nearest enemy (nearest instance belonging to another class). Instances are then checked for removal beginning at the instance furthest from its nearest enemy. This tends to remove instances furthest from the decision boundary first, which in turn increases the chance of retaining border points.
* Drop3 ([18]) - Drop3 uses a noise filtering pass before sorting the instances in TR. This is done using the rule: Any instance not classified by its knearest neighbours is removed.
* Ib2 ([16]) - It is similar to Cnn but using a different selection strategy.
* Ib3 ([16]) - It outperforms Ib2 introducing the acceptable instance concept to carry out the selection. The parameters associated to Ib3 appear in Table 1.
The following table presents the parameters associated with the algorithms:
Table 1 Algorithm's Parameters
4.1.2 Evolutionary Algorithms
We have evaluated the CHC algorithm as representative and efficient EA model ([6]). It has been chosen due to in [5], CHC is the algorithm which shows the best behaviour among evolutionary and non-evolutionary ones.
During each generation the CHC develops the following steps:
(1) It uses a parent population of size n to generate an intermediate population of n individuals, which are randomly paired and used to generate n potential offspring.
(2) Then, a survival competition is held where the best n chromosomes from the parent and offspring populations are selected to form the next generation.
CHC also implements a form of heterogeneous recombination using HUX, a special recombination operator. HUX exchanges half of the bits that differ between parents, where the bit position to be exchanged is randomly determined. CHC also employs a method of incest prevention. Before applying HUX to two parents, the Hamming distance between them is measured. Only those parents who differ from each other by some number of bits (mating threshold) are mated. The initial threshold is set at L/4, where L is the length of the chromosomes. If no offspring are inserted into the new population then the threshold is reduced by 1.
No mutation is applied during the recombination phase. Instead, when the population converges or the search stops making progress (i.e., the difference threshold has dropped to zero and no new offspring are being generated which are better than any members of the parent population) the population is reinitialized to introduce new diversity to the search. The chromosome representing the best solution found over the course of the search is used as a template to re-seed the population. Re-seeding of the population is accomplished by randomly changing 35% of the bits in the template chromosome to form each of the other n-1 new chromosomes in the population. The search is then resumed.
The parameters associated to CHC algorithm appear in Table 1.
4.2 Data sets for experiments
To evaluate the behaviour of the algorithms applied in different size data sets, we have carried out the experiments increasing complexity and size of data sets. We have selected large and huge size data sets as we can see in Table 2 (these data sets can be found in the UCI Repository in [19])
Table 2 Data sets
4.3 Partitions and Stratification: An specific model
We have evaluated each algorithm in a ten fold cross validation process. In the validation process TRi, i=1, ..., 10 is a 90% of D and TSi its complementary 10% of D.
In our experiments we have executed the IS algorithms following two perspectives for the ten fold cross validation process:
In the first one, we have executed the IS algorithms as we can see in Figure 3. We call it Ten fold cross validation classic (Tfcv classic). The idea is use this result as baseline versus the stratification ones.
In Tfcv classic the subsets TRi and TSi, i=1, ..., 10 are obtained as the
equations (6) and (7) indicate:
where t is the number of strata, and b is the number of strata grouped (b = t/10, to carry out the ten fold cross validation).
Each set TSSi is obtained by the IS algorithm applied to TRi subset.
The second way is to execute the IS algorithms in a stratified process as the Figure 4 shows. We call it Ten fold cross validation strat (Tfcv strat).
In Tfcv strat each TRi is defined as we can see in equation (6), by means of the union of Dj subsets (see Figure 4).
ISA: Instance Selection Algorithm
Fig. 4. Training Set Selection in Stratified Ten fold cross validation
In Tfcv strat (see Figure 4) STSSi is generated using the DSj instead of Dj (see equation (8)).
STSSi contains the instances selected by IS algorithms in TRi following the stratified strategy.
The subset TSi is defined by means the equation (7). Both, TRi and TSi are generated in the same way in Tfcv classic and Tfcv strat.
4.4 Table of Results
In the following subsection we will offer the structure of table where we present the results.
Our table shows the results obtained by the evolutionary and non-evolutionary IS algorithms, respectively. In order to observe the level of robustness achieved by all algorithms, the table presents the average in the ten fold cross validation process of the results offered by each algorithm in the data sets evaluated. Each column shows:
* The first column shows the name of the algorithm. In this column the name is followed by the sort of validation process: strat or classic meaning the validation process followed.
* The second column contains the average execution time (in seconds) associated to each algorithm. The algorithms have been run in a Pentium 4, 2.4 Ghz, 256 RAM, 40 Gb HD.
* The third column offers the mean number of rules associated to the decision tree generated by C4.5.
* The fourth column shows the average reduction percentage from the initial training sets.
* The fifth column contains the accuracy when C4.5 is applied using the training set selected. It shows the training accuracy associated to the model generated using the subset selected (STSS) in TR.
* Last column offers the test accuracy of the algorithms in the model obtained by C4.5 (TS assessed using STSS).
5 Experimental Results and Analysis
This section shows the results and its associated analysis in the evaluation of large and huge size data sets.
5.1 Experimental Results
Tables 3 and 4 contain the results obtained in the evaluation of Adult and Kdd Cup'99 data sets, respectively. The number of strata used in Adult data set is t = 10. In Kdd Cup'99 the number of strata is t = 100.
Table 3 Results for Adult data set
Table 4 Results for Kdd Cup'99 data set
5.2 Analysis of the Results
The analysis is developed paying attention to the balance among reduction, accuracy and interpretability offered by the algorithms assessed. The study of third, fourth and sixth columns in Tables 3 and 4 allow us to make the following comments according to the balance among the three objectives:
* Most of the non-evolutionary algorithms which present higher reduction rates, decrease their prediction capabilities. Stratified CHC is the one which
provides the highest reduction rates in the problems evaluated, independently of their size. In both cases, it reduces more than 99% of the initial data set.
* In the case of accuracy rate (sixth column), C4.5 assessed without any kind of reduction is the best one. Our proposal is only slightly improved by nonevolutionary algorithms which offer lower reduction rates.
* Most of non-evolutionary algorithms present much bigger decision trees than evolutionary one. C4.5 applied without any kind of reduction generates the biggest decision trees. Our proposal presents the smaller decision trees among all algorithm assessed.
The main conclusion that can be drawn is that Stratified CHC is the algorithm among the studied which offers the most interpretable training set selected, with the best accuracy and reduction rates associated in large and huge size data sets.
Briefly summarizing this comments, we conclude that when stratified CHC is applied to training set selection in large size data sets it produces the most interpretable models with highest accuracy and reduction rates. This small model size increases the decision tree's speed in classification, reducing its storage necessities and increasing its human interpretability.
6 Conclusions
In this paper the stratified evolutionary instance selection algorithm for training set selection in large size data sets is presented. It selects the minor number of most representative instances which maintain classification capabilities and increase the interpretability of the models generated by DM algorithms. While the stratification face offthe scaling up problem, CHC selects the most representative instances.
The main conclusions reached in the experimental study are the following:
* Stratified CHC outperforms the classical algorithms, simultaneously offering the best balance among data reduction, accuracy and interpretability. Our proposal significantly reduces the size of the decision tree associated to the model obtained. This characteristic produces decision trees that are easier to interpret.
* In large and huge size data sets, non-evolutionary algorithms do not present balanced behaviour. If the algorithm reduces the size then its accuracy rate is poor. When accuracy increases there is no reduction. The stratified version of CHC offers the best results when the data set size increases.
Therefore, as a final concluding remark, we consider Stratified strategy combined with CHC to be the best mechanism for training set selection in DM. Our proposal offers as principal characteristics its balance among reduction, precision and interpretability.
It has become a powerful tool to obtain smaller and high quality training sets and therefore scaling down data. CHC can select the most representative instances, satisfying the objectives of high accuracy and reduction rates, and the most interpretable models. Stratified strategy permits the reduction of the search space so we can carry out the evaluation of the algorithms in acceptable execution time.
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J Ma
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Table of Contents
Advantages of eBooks Over Traditional Books
Identifying 2.
Exploring Different Genres
Considering Fiction vs. Non-Fiction
Determining Your Reading Goals
Understanding the eBook 1.
The Rise of Digital Reading
Choosing the Right eBook Platform 3.
Popular eBook Platforms
Features to Look for in an
User-Friendly Interface
Exploring eBook Recommendations from 4.
Personalized Recommendations
User Reviews and Ratings
and Bestseller Lists
Accessing Free and Paid eBooks 5.
Public Domain eBooks
eBook Subscription Services
Budget-Friendly Options
Navigating eBook Formats 6.
ePub, PDF, MOBI, and More
Compatibility with Devices
Enhanced eBook Features
Enhancing Your Reading Experience 7.
Adjustable Fonts and Text Sizes of
Highlighting and Note-Taking
Interactive Elements
Staying Engaged with 8.
Joining Online Reading Communities
Participating in Virtual Book Clubs
Following Authors and Publishers
Balancing eBooks and Physical Books 9.
Benefits of a Digital Library
Creating a Diverse Reading Collection
Overcoming Reading Challenges 10.
Dealing with Digital Eye Strain
Minimizing Distractions
Managing Screen Time
Cultivating a Reading Routine 11.
Setting Reading Goals
Carving Out Dedicated Reading Time
Sourcing Reliable Information of 12.
Fact-Checking eBook Content of
Distinguishing Credible Sources
Promoting Lifelong Learning 13.
Utilizing eBooks for Skill Development
Exploring Educational eBooks
Embracing eBook Trends 14.
Integration of Multimedia Elements
Interactive and Gamified eBooks
Introduction
In todays digital age, the availability of books and manuals for download has revolutionized the way we access information. Gone are the days of physically flipping through pages and carrying heavy textbooks or manuals. With just a few clicks, we can now access a wealth of knowledge from the comfort of our own homes or on the go. This article will explore the advantages of books and manuals for download, along with some popular platforms that offer these resources. One of the significant advantages of books and manuals for download is the cost-saving aspect. Traditional books and manuals can be costly, especially if you need to purchase several of them for educational or professional purposes. By accessing versions, you eliminate the need to spend money on physical copies. This not only saves you
money but also reduces the environmental impact associated with book production and transportation. Furthermore, books and manuals for download are incredibly convenient. With just a computer or smartphone and an internet connection, you can access a vast library of resources on any subject imaginable. Whether youre a student looking for textbooks, a professional seeking industry-specific manuals, or someone interested in self-improvement, these digital resources provide an efficient and accessible means of acquiring knowledge. Moreover, PDF books and manuals offer a range of benefits compared to other digital formats. PDF files are designed to retain their formatting regardless of the device used to open them. This ensures that the content appears exactly as intended by the author, with no loss of formatting or missing graphics. Additionally, PDF files can be easily annotated, bookmarked, and searched for specific terms, making them highly practical for studying or referencing. When it comes to accessing books and manuals, several platforms offer an extensive collection of resources. One such platform is Project Gutenberg, a nonprofit organization that provides over 60,000 free eBooks. These books are primarily in the public domain, meaning they can be freely distributed and downloaded. Project Gutenberg offers a wide range of classic literature, making it an excellent resource for literature enthusiasts. Another popular platform for books and manuals is Open Library. Open Library is an initiative of the Internet Archive, a non-profit organization dedicated to digitizing cultural artifacts and making them accessible to the public. Open Library hosts millions of books, including both public domain works and contemporary titles. It also allows users to borrow digital copies of certain books for a limited period, similar to a library lending system. Additionally, many universities and educational institutions have their own digital libraries that provide free access to PDF books and manuals. These libraries often offer academic texts, research papers, and technical manuals, making them invaluable resources for students and researchers. Some notable examples include MIT OpenCourseWare, which offers free access to course materials from the Massachusetts Institute of Technology, and the Digital Public Library of America, which provides a vast collection of digitized books and historical documents. In conclusion, books and manuals for download have transformed the way we access information. They provide a cost-effective and convenient means of acquiring knowledge, offering the ability to access a vast library of resources at our fingertips. With platforms like Project Gutenberg, Open Library, and various digital libraries offered by educational institutions, we have access to an ever-expanding collection of books and manuals. Whether for educational, professional, or personal purposes, these digital resources serve as valuable tools for continuous learning and self-improvement. So why not take advantage of the vast world of books and manuals for download and embark on your journey of knowledge?
FAQs About Books
What is a PDF? A PDF (Portable Document Format) is a file format developed by Adobe that preserves the layout and formatting of a document, regardless of the software, hardware, or operating system used to view or print it. How do I create a PDF? There are several ways to create a PDF: Use software like Adobe Acrobat, Microsoft Word, or Google Docs, which often have built-in PDF creation tools. Print to PDF: Many applications and operating systems have a "Print to PDF" option that allows you to save a document as a PDF file instead of printing it on paper. Online converters: There are various online tools that can convert different file types to PDF. How do I edit a PDF? Editing a PDF can be done with software like Adobe Acrobat, which allows direct editing of text, images, and other elements within the PDF. Some free tools, like PDFescape or Smallpdf, also offer basic editing capabilities. How do I convert a PDF to another file format? There are multiple ways to convert a PDF to another format: Use online converters like Smallpdf, Zamzar, or Adobe Acrobats export feature to convert PDFs to formats like Word, Excel, JPEG, etc. Software like Adobe Acrobat, Microsoft Word, or other PDF editors may have options to export or save PDFs in different formats. How do I password-protect a PDF? Most PDF editing software allows you to add password protection. In Adobe Acrobat, for instance, you can go to "File" -> "Properties" -> "Security" to set a password to restrict access or editing capabilities. Are there any free alternatives to Adobe Acrobat for working with PDFs? Yes, there are many free alternatives for working with PDFs, such as: LibreOffice: Offers PDF editing features. PDFsam: Allows splitting, merging, and editing PDFs. Foxit Reader: Provides basic PDF viewing and editing capabilities. How do I compress a PDF file? You can use online tools like Smallpdf, ILovePDF, or desktop software like Adobe Acrobat to compress PDF files without significant quality loss. Compression reduces the file size, making it easier to share and download. Can I fill out forms in a PDF file? Yes, most PDF viewers/editors like Adobe Acrobat, Preview (on Mac), or various online tools allow you to fill out forms in PDF files by selecting text fields and entering information. Are there any restrictions when working with PDFs? Some PDFs might have restrictions set by their creator, such as password protection, editing restrictions, or print restrictions. Breaking these restrictions might require specific software or tools, which may or may not be legal depending on the circumstances and local laws.
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INTERNATIONAL JOURNAL OF CONSERVATION SCIENCE
Volume 7, Issue 3, July-September 2016: 719-724
PRELIMINARY SURVEY ON ASIATIC BLACK BEAR IN KASHMIR HIMALAYA, PAKISTAN: IMPLICATIONS FOR PRESERVATION
Muhammad NAEEM AWAN 1,2* , Alexandros A. KARAMANLIDIS 3,4 , Muhammad SIDDIQUE AWAN 1 , Muhammad ALI NAWAZ 5 , Muhammad KABIR 6
1
2
Department of Zoology, University of Azad Jammu and Kashmir, 13100 Muzaffarabad, Pakistan
13100 Kashmir, Pakistan
Himalayan Nature Conservation Foundation, Sufa School of Learning Building, Muzaffarabad,
3 ARCTUROS – Civil Society for the Protection and Management of Wildlife and the Natural Environment, 53075 Aetos, Florina, Greece
6 Department of Forestry and Wildlife Management, University of Haripur, Khyber Pakhtunkhwa, Pakistan.
4 Department of Ecology and Natural Resource Management, Norwegian University of Life Sciences, P.O. Box 5003, 1432 Ås, Norway 5 Department of Animal Sciences, Quaid-i-Azam University, 44000 Islamabad, Pakistan
Abstract
Asiatic black bears (Ursus thibetanus thibetanus) are considered vulnerable throughout their range. In 2012 we conducted field surveys and questionnaires in the autonomous state of Azad Jammu and Kashmir in Pakistan to document the presence of bears and to evaluate human – bear conflicts. We recorded bears mainly in the northern and eastern part of the study area and documented wide-scale human – bear conflicts, which often resulted in the killing and a generally negative public perception of bears. We recommend additional studies to more accurately evaluate black bear status, biology and human – bear conflicts and the establishment of a protected area for bears in the region. On a national level, an Asiatic Black Bear Action Plan that will guide and coordinate research, management and conservation efforts is necessary to safeguard the future of the species in the country.
Keywords: Ursus thibetanus thibetanus; Crop damages; Endangered species; Himalayas; Livestock depredation; Management;
Introduction
Economic development, human encroachment and unsustainable land – use patterns have led to an increase in fragmentation of natural habitats [1] and human – wildlife conflicts [2], which in turn have driven species worldwide towards extinction [1, 3-4]. Large carnivores are particularly predisposed to conflicts with humans [5] due to induced human mortality, livestock depredation and agricultural damages [6], and often their populations are endangered due to retaliatory human persecution [7]. Conflicts between humans and bears are currently globally on the rise and the negative impact on their conservation is increasing [8]. The success of carnivore conservation in general and of bears specifically, depends largely on the support of rural people [9], however such support may diminish if conflicts with humans increase [10-11].
The Asiatic black bear (Ursus thibetanus thibetanus) has been classified as vulnerable [12]; widespread illegal killing of bears and trade in parts, combined with loss of habitat, have
* Corresponding author: firstname.lastname@example.org
resulted in the decline of the species in most parts of its range [13]. In Pakistan, Asiatic black bears used to be common 20 – 30 years ago [14], but now occupy only the Himalayan moist and dry temperate forests in the northern part of the country and the autonomous state of Azad Jammu and Kashmir (AJK) (Fig. 1). With fewer than 1,000 individuals remaining [15] Asiatic black bears are considered vulnerable in Pakistan and are threatened by habitat loss, poaching and live capture for bear baiting (i.e., exhibition fights between bears and dogs) [16]. On a national level Asiatic black bears in Pakistan are protected by the "Pakistan Wildlife Ordinance" of 1970 and on a local level by wildlife protection acts issued by each autonomous state [17]. However, no systematic monitoring and management actions for the species are currently in place and a National Action Plan has not been formulated yet. Habitat assessment, public awareness and conservation education have been identified as the main conservation priorities for black bears in Pakistan [16].
In Figure 1 black circles indicate villages where human – bear conflicts were recorded, grey circles indicate villages where no human – bear conflicts were recorded. Grey shaded cells indicate areas where bear evidence was found during the field surveys; no bear evidence was found in the white cells. The inset map indicates the location of the study area within Pakistan and the approximate distribution of Asiatic black and brown bears in the country.
In 2012 we initiated a preliminary survey to document the presence and to describe and evaluate human – Asiatic black bear conflicts in a Himalayan landscape in Pakistan. Considering the current conservation status of the species, as well as the socio – economic situation in the country, we propose management actions to decrease human - bear conflicts and facilitate the effective conservation of Asiatic black bears in Pakistan.
Study area
The study was carried out in a 406 km 2 large and mountainous area in the Pir-Chinasi / Pir-Hasimar mountains (34 0 22' 12''N, 73 0 30' 47''E) in the State of AJK in Pakistan (Figure 1), which belongs to the Western Himalayan biodiversity hotspot [18]. Other carnivore species living in the study area include the leopard (Panthera pardus), leopard cat (Prionailurus bengalensis), Asiatic jackal (Canis aureus), red fox (Vulpes vulpes) and yellow throated martin (Martes flavigula) [5]. Human population density in the State of AJK is high (i.e., 258 people per sq km) and has been steadily increasing since 2000, which has resulted in increasing habitat destruction and demand for natural resources [19-20].
Methods
We evaluated black bear presence by dividing the study area in 17 cells (5 x 5km) using ArcMap (version 9.1, ESRI INc., Redlands, California, USA) (Figure 1). Within each cell we randomly selected 10 survey plots of 50m radius, which we inspected once (July – September 2012) in search of direct (i.e., observations, dead animals) and indirect signs of bear presence (i.e., claw marks, feeding signs, scats, tracks, etc.).
Information on bear presence and human – bear conflicts was corroborated by evaluating the official records of the AJK Wildlife Department on killed bears.
At the same time we conducted questionnaire surveys on human - bear conflicts among residents of 35 randomly selected villages in the study area. The main aims of the questionnaire surveys were to explore the different aspects of human – Asiatic black bear conflicts and the attitude of locals towards the species. The questionnaire consisted of 13 questions organized in three main sections: (1) demographic and socio-economic characteristics of respondents: information about the respondent and his livestock and/or agricultural property was collected; (2) human – bear conflict experience: information on human - bear conflicts in the area was collected, including information on the type, year, season and estimated distance from forest edge (i.e., <250m, 250 - 500, >500m) of bear damage (i.e., livestock depredation and crop damage) in the last 5 years; and 3) information on the perceptions towards bears in the area was collected. Only reliable damage data were used in the study; reliable data were considered damage cases, where the person questioned either saw the bear causing the damages, or could provide sufficient information on the damage incident to be considered reliable.
We used descriptive statistics to summarize results and non-parametric tests (i.e., Kruskal Wallis test, Chi-square goodness-of-fit) for comparisons [21]. The significance level was set to P ≤ 0.05. We plotted all field and questionnaire data using ArcMap software.
Results
Black bear presence was documented in 52 cases (i.e., 6 claw marks, 5 feeding signs, 10 footprints, 31 scats), in 47 out of the 170 plots and in 12 of the 17 cells surveyed (Figure 1). Bear presence was recorded more frequently in the northern and eastern parts of the study area (i.e., cells BH249, BH250, BI251, BI250 and BK250) and less frequently or not at all at the western and southern borders of the study area (i.e., cells BH247, BI247, BJ248, BK249, BL249 and BL250).
Black bears killed a total of 103 livestock, mainly goats (58%) and sheep (23%); goats were attacked significantly more often (Kruskal – Wallis H = 21.18, 3 df, P < 0.001). The mean number of livestock loss per respondent was 2.06 individuals, with 42% of respondents suffering the loss of a single livestock.
We carried out 105 questionnaire surveys on human – Asiatic black bear interactions throughout the autonomous State of AJK (July - September 2012). People interviewed were older males of the cast of the choudry (38%), involved mostly in animal herding (76%). All respondents kept cattle, goats (78%) and sheep (58%). The mean number of livestock kept per respondent was 48 animals (i.e., 27 goats, 12 sheep, 4 cattle and 5 other). Also, all respondents cultivated corn, 69% had wheat and 57% rice. During the five years for which data were collected, 46.6% of the people interviewed reported damages to their livestock and 57% to their crops.
The annual number of livestock damaged increased from 9 and 5 in 2008 and 2009 respectively to 30 and 39 in 2010 and 2011 respectively. In 2012 it dropped to 19 livestock killed. Most livestock was killed by Asiatic black bears during the summer months of June, July and August (50%), there was however no significant relationship between type of livestock damaged and season of damage (Chi-square test of association x 2 = 1,317, 4 df, P = 0,141). Livestock attacks occurred significantly more often at locations more than 500 m from the forest edge (Kruskal – Wallis H = 30.06, 2 df, P< 0.001).
Local people generally had neutral (46%) or negative (32%) attitudes towards bears because of the damages caused by bears to their property. People who were negatively predisposed towards bears believed that they were dangerous and a major threat to their livestock and therefore should be eliminated.
A total of 108 cases of damages to corn fields by Asiatic black bears were reported; the mean number of crop damages per respondent was 1.02, with 29% of respondents suffering a single damage to their crops during the study period. Most crop damages by Asiatic black bears were reported during the summer (38%) and autumn months (60%). The annual number of crops damaged increased from 4 and 9 in 2008 and 2009 respectively to 25 and 48 in 2011 and 2012 respectively. Crop damage occurred significantly more often at locations very close to the forest edge (i.e., < 250m) (Kruskal – Wallis H = 8.311, 2 df, P < 0.05).
The official records of the AJK Wildlife Department indicated an increasing trend in the cases of bears illegally killed in the study area between 2008 – 2012 (adult females N = 7; adult males N = 4; cubs N = 2).
Discussion
We present the results of the first field survey on Asiatic black bear presence and human – bear conflicts in the autonomous State of Azad Jammu and Kashmir in Pakistan. The combined results of our field and questionnaire surveys indicate that Asiatic black bears are widely distributed in the study area: bear presence was confirmed from almost throughout the entire study area, except from the western- and southernmost parts of it. This is most likely due to the fact that habitat quality in the western- and southernmost parts of the study area has been reduced through commercial logging and human encroachment. Knowledge on species presence is essential in effective conservation planning [22]. Considering the limited amount of data on bear presence collected in this study it is important that additional field work is carried out in order to more accurately understand the distribution of Asiatic black bears in the State of AJK.
The damages caused by bears resulted in a generally negative attitude towards bears and occasionally in their deliberate killing. Such a negative attitude towards bears and large carnivores in general is quite common in the region [5, 26-27]. Although bear are legally protected, the increase in human population in the area is most likely going to lead to an increase in human – bear conflicts in the future and in an increase in illegal bear killings, thus making the application of effective mitigation measures an immediate conservation priority.
During the study we recorded human – bear conflict patterns commonly observed in most bears species [8, 23-25]. Our interviews with local villagers indicated that human – bear conflicts, including agricultural and livestock damages were widespread and that damage patterns likely reflected the biological needs of the bears, the availability of the resources and the need to hide from humans.
Recommendations
Though based on limited field data, our results suggest that Asiatic black bears in AJK face numerous conservation challenges, and therefore actions are needed to safeguard the future of the species. We recommend the following priority research and management actions:
1) Systematic monitoring efforts are required in order to understand species population trends and conflicts with humans and ultimately develop an effective and outreaching conservation strategy for the species [28].
2) Public awareness, including community education and skill development in order to provide alternative livelihood prospects and reduce pressure on Asiatic black bear habitat in the region.
These research and management actions should be part of a more comprehensive Species Action Plan that will guide conservation efforts aiming to secure the future of the Asiatic black bear in Pakistan.
3) Establishment of a protected area that will provide adequate protection for critical black bear habitat in the area.
Conclusions
Asiatic black bears although IUCN red listed species and also categorized a protected species by the state wildlife act but bears are killed either in conflicts with human or for some bear parts. These killings are especially high outside protected areas like in the present study area. Wildlife protection staffs do not have the capacity in handling conflicts and protecting bears, additionally department also short of resources to protect bears outside protected areas. The current study provides baseline information on the level of human back bear conflicts along with some suggestion to help minimize these conflicts. Based on the information provided, wildlife department could develop conservation strategies to help protect the species and its habitat from further degradation which is very important and need of the time.
Acknowledgments
We thank the field teams of the Snow Leopard Foundation for their help in the field work. Our special thanks are due to Shoab Hameed and Dost Ali for their help collecting the data and the GIS work. We would like also to thank the State Wildlife Department for granting research permits and the wildlife field staff for their help in the field work and in conducting the questionnaires.
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Received: January, 15, 2016
Accepted: September, 05, 2016
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Historical Overview of the English Language Curriculum and the Present English Language Curriculum of Upper-Secondary Education in Mongolia
Byambasuren Nyamkhuu,* Atti la Czabaji Horváth** and Adrian Estrela Pereira,***
DOI: 10.21549/NTNY.44.2024.1.5
This article attempts to provide a historical overview of the English language curriculum in Mongolia as well as the development of the present upper-secondary English language curriculum. The history of the English language curriculum is an important but often overlooked topic in the literature. Thus, the paper attempts to reduce the gaps and deficiencies with recent data in the literature. It focuses on the experiences of educational reforms in the English language curricula in the past as well as the present English language curriculum of upper-secondary education. The study utilises document analysis as the methodological approach to scrutinise materials contributing to the development of knowledge supporting the discussions presented.
Keywords: English Language Education in Mongolia, English Language Curriculum of Upper-secondary Education, Foreign Language Curriculum, Curriculum, Upper-secondary Education
Introduction
Mongolia is a landlocked country with a population of 3.3 million ( Mongolian Institute for Educational Research, 2019a). It has a rich and long history that has shaped the education system as well as national curricula. In terms of its historical timeline, the Mongol Empire was the largest contiguous land empire in history in the 13th and 14th centuries. Then, Mongolia declared its independence from Manchus in 1911, and Bogd Gegeen was declared Bogd Khaan. The roots of the modern Mongolian education system can be approximately traced back to this phase. Following this autonomous period, The Mongolian People's Republic was established in 1921 as a result of the victory of the People's Revolution, with the assistance of the young Soviet Republic (Baldayev, 1959). As a result, the Soviet Union exerted significant influence over Mongolia. Subsequently, the Mongolian revolution of 1990 led to the severance of any connections to the former Soviet Union. Mongolia's social and political situation had been changed from a centrally planned system to a free and market-oriented one (Pastore, 2010). Along with a new Mongolian constitution in 1992, a new education system was formed. Thereupon, new curricula have been developed, phasing out heavy Soviet influence and
* PhD candidate, Doctoral School of Education, Faculty of Education and Psychology, Eötvös Loránd University, Budapest, Hungary, email@example.com
** Full professor, Institute of Education, Faculty of Education and Psychology, Eötvös Loránd University, Budapest, Hungary, firstname.lastname@example.org
*** PhD candidate, Doctoral School of Education, Faculty of Education and Psychology, Eötvös Loránd University, Budapest, Hungary, email@example.com
communist ideology and reviving Mongolian national heritage (Robinson, 1995), national culture, customs (Galsan, 2008), and science and technology (Spaulding, 1990).
At the present time, the country is divided administratively into 21 provinces, including the capital city, Ulaanbaatar, which has independent administrative status. Further local subdivisions include some1 and bags2 (Yembuu, 2010). The education system is a 12-year system. Primary education is five years, lower-secondary education is four years, and upper-secondary education is three years. The Mongolian government has made an immense effort to develop the education sector at all levels since its transition to democracy. Russian was the most significant foreign language before 1990; however, the number of younger people learning English has grown in the last three decades as it increases the chances of obtaining employment overseas and getting access to more opportunities, including travel and communicating with people from different countries.
Mongolia has made significant efforts to reform the curriculum. However, due to the unpredictability of the reform process and the short-term nature of the reforms, it still faces some challenges, such as difficulty in effectively implementing, updating and evaluating the curriculum. The major changes in policy and institutional reforms in Mongolia's education sector have intensified since the 1990s; the 10-year system shifted to an 11year system in 2006, and the 11-year system shifted to a 12-year system in 2008. Through the education reform, the following changes have been made in the curriculum. In this regard, national standards and programs could be referred to such as 'The standards for the content of primary and lower- secondary education' of 1998, competency-based 'Primary and Secondary Education Standards' in 2004, 11-Year Content Framework for the general education of 2006, 12-year curricula for general education and curricula of mathematics, natural science and English language that meet international standards from 2009 to 2012, curricula for primary, lower secondary and upper-secondary education from 2013 to 2018. However, there is no specific assessment of the implementation of the curriculum and standards except the evaluation in 2009 on primary and lower-secondary education adopted in 2004, which is a major problem facing the continuing development of the curriculum. Due to these continual reforms and changes in a short period, English language curricula for all levels of education were also modified based on new policies and regulations.
This article delineates English language education in Mongolia since the democratic revolution of 1990. It consists of two main parts. The first part is a historical overview of the English language curriculum, which describes the appearance of the English language as a foreign language in the Mongolian education system, the development of the English language curriculum in primary, lower-secondary and upper-secondary education and reforms and changes in the curriculum. The second part particularly narrows down to the upper-secondary education English language curriculum. It focuses on the historical background of the development of the curriculum and a brief description of its characteristics.
An essential but frequently ignored subject in the literature is interest in the history of the English language curricula. Thus, the research attempted to fill in the gaps by using the latest data. Using a historical research perspective, this paper presents a twofold aim: 1) to explore the changes and reforms of English language curricula in the past and 2) to describe the historical background of the present English language curriculum of upper-secondary education. In accordance with these aims, this article aims to answer the following research questions.
1. Small district in the countryside (Yembuu, 2010)
2. Sub-districts in the countryside (Yembuu, 2010)
1. What are the changes and reforms of English language curricula historically?
2. What aspects influenced the alteration of the present English language curriculum of upper-secondary education?
By responding to these research questions, this study hopes to provide an insight into the historical overview and present English language curriculum of upper-secondary education in Mongolia, which is an important but often overlooked topic in the literature and attempts to reduce the gaps and deficiencies in recent data in the literature. By delving into this understudied area, the research aims to fill a notable gap in scholarly discussions, offering fresh insights into the evolution, challenges, and transformations of recent data within English language education in Mongolia. The nature of the research on the historical overview and present English language curriculum in Mongolia adopts a document analysis methodology to examine the evolution of the curriculum over time comprehensively. The researcher utilises publicly available primary sources such as curricula and secondary sources such as reports, articles, and guidelines to shed light on aspects of the history of the English curriculum in Mongolia. Moreover, the research seamlessly integrates the 'Asia as Method' framework, emphasising the importance of incorporating Mongolian perspectives and experiences into academic discourse moving beyond Western-centric references and using more Mongolian references to offer a more nuanced understanding of English language education in Mongolia.
Literature review
English language education in Mongolia has undergone significant transformations over the years, shaped by historical, cultural and socio-economic factors. Understanding the evolution of English language education and the current state of the curriculum in upper-secondary schools is essential for assessing its impact on students' linguistic proficiency and educational outcomes. This literature review aims to explore the historical development of English language education in Mongolia and provide insights into the present English language curriculum in upper-secondary education. Before the 1990s, Mongolia's education system was heavily influenced by Soviet educational models. Russian language held primacy as being primary foreign language in schools. With Mongolian, Russian language was forming the core of the secondary school curriculum (Pritchatt, 1974). The Cyrillic alphabet, introduced in the 1940s, underscored the close ties between Mongolia and the Soviet Union (Krueger, 1961). However, following the democratic revolution of the early 1990s, Mongolia embarked on a path of political and economic liberalisation, leading to a shift away from Soviet influence. The collapse of the Soviet Union catalysed a shift in Mongolia's linguistic landscape, with English emerging as a prominent foreign language in schools and universities (Dovchin, 2017). The economic and social significance of English as a global lingua franca prompted the Mongolian government to prioritise its inclusion in the national curriculum (Marav, 2022). Consequently, English replaced Russian as the premier foreign language taught in schools, reflecting Mongolia's aspirations for international integration and economic development (Cohen, 2005). The post-Soviet era witnessed sweeping educational reforms aimed at modernising Mongolia's education system and aligning it with global standards. The passage of new education laws in 1992 and 1995 heralded significant changes in curriculum design, pedagogical approaches and administrative structures (Robinson, 1995; Choijoo, 2013). English became a compulsory subject in secondary schools, reflecting its pivotal role in fostering educational and economic opportunities for Mongolian students (Batchuluun, 1996). The transition to a market-oriented economy prompted the Mongolian government to revamp its education system, including the development of standardised curricula and content standards. The introduction of content standards for foreign language education in 1998 marked a shift towards competency-based teaching and learning (Nookoo, 2016). Subsequent revisions in 2003 and 2004 further refined the curriculum, emphasising communicative and constructivist approaches to language instruction (Namsrai, 2004; Bayangol, 2006). In 2006, Mongolia embarked on a comprehensive educational reform initiative, culminating in the adoption of a 12-year education system (Nookoo, 2016). This shift aimed to align Mongolia's education system with global practices and enhance students' academic preparedness and competitiveness (Government of Mongolia, 2006). The curriculum for the 12-year system reflects continuity with previous frameworks while incorporating updated standards and cross-curricular linkages (Mongolian Institute for Educational Research, 2019c). Following this reform, in pursuit of educational excellence and global competitiveness, the Mongolian government partnered with Cambridge International Examinations to modernise the English language curriculum (Nookoo, 2016) in 2011. This collaboration aimed to introduce modern pedagogical approaches and assessment standards, aligning Mongolian education with international best practices. The Mongolia-Cambridge Education Initiative (MCEI) was established to reform education in Mongolia, leveraging the expertise of Cambridge Assessment International Education and the University of Cambridge Faculty of Education (Cambridge Assessment International Education, 2018). This joint initiative aimed to build an education system based on internationally recognised standards and practices. Mongolia's 12-year education system encompasses primary, lower-secondary and upper-secondary education, with English language education introduced from grade 5 (Marav, 2022). The curriculum emphasises student-centeredness, group activities and hands-on learning, aligning with global best practices (Ragchaa, 2020). The collaboration between Mongolia and Cambridge International Examinations has played a pivotal role in transforming English language education in Mongolia. By leveraging international expertise and best practices, Mongolia has developed a curriculum aimed at enhancing students' communicative competence.
Research Methodology
This study utilises document analysis as the methodological approach to scrutinise materials contributing to the development of knowledge supporting the discussions presented. Bowen (2009) defines document analysis as a systematic procedure for reviewing or evaluating documents—both printed and electronic material. He further narrates the specific uses of the documents as follows.
First, documents can provide data on the context within which research participants operate, a case of text providing context. Second, the information contained in documents can suggest some questions that need to be asked and situations that need to be observed as part of the research. Third, documents provide supplementary research data. Information and insights derived from documents can be valuable additions to a knowledge base. Fourth, documents provide a means of tracking change and development. Where various drafts of a particular document are accessible, the researcher can compare them to identify the changes. Fifth, documents can be analysed as a way to verify findings or corroborate evidence from other sources (Bowen, 2009, pp. 29–30).
As the paper explores the historical changes in the curriculum, the researcher has embraced the document analysis method. It provides an opportunity to investigate history as stated by Bowen (2009, p. 31) 'documents may be the most effective means of gathering data when events can no longer be observed or when informants have forgotten the details'.
The study entailed the following Creswell's (2009, p. 172–176) steps of qualitative data analysis and interpretation to analyse the documents. 1) organise and prepare the data for analysis 2) read through all the data 3) begin detailed analysis with a coding process 4) generate categories and themes based on the codes 5) represent themes in the qualitative narrative 6) interpret and explain the meaning of the data. Following this direction, the researcher utilised publicly available primary and secondary sources, including curricula, reports, articles, guidelines for the curricula, and documents that shed light on the history of the English curriculum. The information from articles, reports and documents by Mongolian authors have been coded into several themes, namely, soviet influence in foreign languages, challenges, embrace of English after the soviet era, education law, educational reforms, competency-based education, and categorised into periods of time which marks the important shifts and changes. As a result, the two main themes, 1) historical overview of the English language curriculum and 2) Historical background of the present English language curriculum of upper-secondary education, were sorted out and produced from the document analysis.
Furthermore, the study is seamlessly incorporated into the framework known as 'Asia as Method', which Chen (2010, p. 223) describes as 'multiplying frames of reference in our subjectivity and worldview through the unique histories and cultures of Asian societies while acknowledging the West as constitutive of Asian subjectivity'. 'Asia as Method' offers a new conception of study that extends beyond a constant reference to the West toward alternate viewpoints, with Asian history, politics, and culture as main points of reference (Zhang et al., 2015). In this way, the study employed the concept of 'Asia as Method' to underscore the significance of incorporating Mongolian perspectives and experiences as integral components of the study. This approach allows the researcher to 'move beyond' (Zhang & Chan, 2023) Western references. Aligned with Chen's recommendation to move beyond Western references in academic research, this chapter employs a discourse that integrates non-Western references and sources. The majority of the literature informing this discussion is sourced and referenced mainly from Mongolian-authored articles, documents and publications.
Historical overview of the English language curriculum
In the early 1990s, Mongolia's social and political situation had changed from a centrally planned system to a free and market-oriented one as a consequence of the democratic revolution. The economic transition from plan to market in Mongolia began in 1990 and broke old trade links with the former Soviet Union (Pastore, 2010). Before 1990, the influence of Russia was strong in the education system (Wolff, 1970), and the Mongolian school system is more or less patterned on the Russian system (Krueger, 1961). For instance, an alphabet based on Cyrillic was employed in the 1940s Field (Krueger, 1961). Pritchatt (1974) claimed that when he visited Mongolia in 1971, the curriculum in secondary school involved the Mongolian language and Russian language as the language subjects along with Mongolian literature, algebra, geometry, physics, general history, the constitution of Mongolian People's Republic, biology, chemistry, geography, technical drawing, physical education, woodwork or metalwork. Furthermore, he stated that the Russian language was studied as a foreign language, and there was barely any evidence of another language.
Following the collapse of the Soviet Union, Mongolia embraced linguistic and cultural diversity and English and other foreign languages have replaced the once-popular Russian language (Dovchin, 2017). Until 1990, Russian had been the premier foreign language taught in secondary schools and universities across the country (Cohen, 2005). The English language is closely linked to educational and economic opportunities, employability, personal development and social mobility in the country (Marav, 2022). Thus, English became pivotal in the country, and the Mongolian government prioritised the English language.
The new law on education in 1992 presented educational reforms that influenced all levels of education, restructuring, management, organisation, policy, and the curriculum in terms of its content and teaching approaches. Along with the new education system, new curricula have been developed, phasing out heavy Soviet influence and communist ideology and reviving the Mongolian national heritage (Robinson, 1995), national culture, customs (Galsan, 2008), and science and technology (Spaulding, 1990). English became an obligatory subject in secondary schools (Batchuluun, 1996) from the academic year 1992-1993, and the official decision to teach English as a primary English language at all levels of educational institutions from the academic year 1997–1998 was made by the Mongolian government in 1997 (Marav, 2022). The reform brought more 'educational and economic opportunities, employability, personal development, and social mobility' (Cohen, 2005 cited in Marav, 2022, p.1). Additionally, new approaches to teaching and learning are being sought, using more activity-based and participative learning to replace the customary transmission-of-knowledge mode and formal class teaching most often found (Robinson, 1995). It is also important to note the reform was not implemented as smoothly as it was intended. Along with more opportunities provided to the people, certain challenges had arisen. One of the major drawbacks during the reform was that 'English was rarely studied in Mongolia previously, teachers were virtually non-existent when English began to spread throughout the country.' The major issues included 'the needs of English language teachers, the lack of substantial funds, inservice training and the provision of adequate materials' (Cohen, 2004, p. 9).
The law on education was revised in 1995 and introduced the policy of democracy and openness in educational administrative structures, decentralised the administration and financing of all public schools, transferred the management of schools to local governments in the provinces, increased the autonomy of colleges and universities and enabled the establishment of private educational institutions (Choijoo, 2013). Additionally, the education law of 1995 affirmed that the education system consists of 10 years: 4 years of primary education, 4 years of lower secondary education and 2 years of upper secondary education (Galsan, 2008). Nookoo (2016) asserted that the first content standards and core curricula were implemented in 1998. Until then, the English language curriculum was not standardised and 'teachers were unable to properly ascertain their students' levels based on explicit criteria' (Cohen, 2004, p. 12). The standard was applied to preschool, primary, lower and upper secondary education levels. It was the first time that standard-based education was introduced. It determines the minimal content of English education that must be mastered by students at certain education levels, its assessment, the teacher's professional level and basic requirements for educational institutions.
The curriculum standard for the foreign language, which is titled the content standards of foreign languages, was revised in 2003 and intended to be implemented officially starting 1 January 2005. It is noteworthy to mention that Russian and English languages are considered foreign languages nationally.
* The aim of the standards for Foreign language education is to plan the curriculum which enables each learner to get the intended education, implement it and evaluate the quality of monitoring activities and further develop them (Namsrai, 2004)
* All testing and evaluation will be based on these competencies. Learning through the communicative and constructivist approaches will be emphasised. The teaching of grammar should be integrated and tested with the four skills and not taught as a separate subject (Cohen, 2004).
* The content standards target the set of competence of foreign language education and specific skills. They are expressed by content domains that reflect the features of learning activities at a particular level of education and the relations with other components of the education content (Namsrai, 2004).
The comprehensive revision of the national educational standards in 2004 is another significant action taken by the government and played an important step in implementing competency-based teaching and learning. It is now understood that the main priority of the new standard is to develop pupils' competence in such a way as to promote life skills and help them to be able to apply their knowledge, skills, and abilities effectively in their lives (Bayangol, 2006).
Competences are defined as a combination of knowledge, skills and attitudes. Knowledge is composed of facts and figures, concepts, ideas and theories that are already established and support the understanding of a certain area or subject. Skills are defined as the ability and capacity to carry out processes and use existing knowledge to achieve results. On the other hand, attitudes describe the disposition and mindsets to act or react to ideas, persons or situations. Gaining the skills and competencies needed for personal fulfilment, health, employability, and social inclusion helps to strengthen people's resilience in a time of rapid and profound change. Thus, it ensures the ability to adapt to change (The Council of the European Union, 2018, p. 7).
The content standard marked a shift from teacher-centred education and replaced it with a studentcentred approach. However, it should be noted that this concept and the standards are still valid (UNESCO, 2020). The learning and teaching process is based on the development of pupils' competency, and UNESCO's four pillars of core competencies: learning to know, learning to do, learning to be and learning to live together were selected as the basis for the review and reform of the national educational standards (Nookoo, 2016). Based on these four pillars of competencies, the educational standard for the English language consists of four domains - listening, speaking, reading and writing – with expected knowledge, skills and competencies. On the basis of the four pillars of learning, the researchers have formulated the essential competencies. The competencies of upper-secondary education for the English language are exemplified as shown in Table 1.
Table 1. Competencies of the English language in upper secondary education (Ministry of Education, Culture, Science and Sports, 2003)
| Four pillars of learning | Codes | Competencies |
|---|---|---|
| Learning to know | 3FL1:C1 | Recognise and distniguish discourse markers |
| | 3FL2:C1 | Use language knowledge correctly in speech |
| | 3FL3:C1 | Find the logical sequence of information within the topic, understand the meaning, sort, interpret, generalise |
| | 3FL4:C1 | Sort and plan your ideas in writnig |
| Learning to do | 3FL1:C2 | Transform the information you hear into another format |
| | 3FL2:C2 | Express your ideas in an orderly manner |
| | 3FL3:C2 | Identify the meaning of words and sentences within the context |
| | 3FL4:C2 | Organise your ideas in a logical order and edit what you write |
| Learning to be | 3FL1:C3 | Predict the meaning of what is being heard in an unfamiliar situatoin |
| | 3FL2:C3 | Be critcial of any issue based on evidence |
| | 3FL3:C3 | Use your knowledge creatviely to explain the meaning of what you read |
| | 3FL4:C3 | Select the necessary facts and informatoin from the materials and write your idea |
| | 3FL1:C4 | Encourage others to listen and respond appropriately |
| | 3FL2:C4 | Communicate, convey what others said and able to present |
| | 3FL3:C4 | Enhance knowledge of life, history, culture and traditions of your country and other countries within the context. |
Every composition of secondary education English language standard has been coded. For example, the code 3FL1:C1 means the first competence of the first domain of the English language in upper secondary education standards. 3 means upper secondary education, and FL means Foreign language. However, a foreign language is the English language in this circumstance. 1 means the first domain of the contents, C means the competence, and 1 first competence of the particular domain (Ministry of Education, Culture, Science and Sports, 2003).
The following year, the education system changed from a 10-year education system to an 11-year one in 2005. Thus, the curriculum was developed based on the educational standards of 2004 (Mongolian Institute for Educational Research, 2019e). Galsan (2008) claimed that the 11-Year Content Framework for primary, lower and upper secondary education was developed as a sample and published in 2004, discussed by teachers and educators and piloted and evaluated in certain schools. Moreover, the 11-Year Content Framework was initiated in line with the educational standard for subjects in all grades. Hence, it incorporated a few requirements, including being developed based on the knowledge and skills defined in the educational standards, considering cross-curricular links of the content. The content for 1st grade deepens and expands as it escalates. It conforms to the hours of a program plan. In 2006, the Government of Mongolia approved the Master Plan 2006-2015, which defined the overall goals and development indicators, implementation strategy, required resources and funding opportunities from multiple sources. Under this strategy, the government decided to switch from an 11-year education to a 12-year system (Nookoo, 2016). The plan is considered to be the first in Mongolia to be developed utilising a sector-wide approach. The Master Plan places a high priority on the expansion of the school system and seeks to bring it in line with global practices (Choijoo, 2013). It aspires to renew educational standards and curriculum at levels and renew standards, policy, strategies, and regulations systematically to be pursued in order to ensure demands and needs to reveal and develop talents, to learn continuously responsibility and ethics of living independently in society, to work, live a quality life and make choices (Government of Mongolia, 2006). The transition of schools to a 12-year education system began in the autumn of 2008 and was planned to be completed by the academic year 2014–2015 (Nookoo, 2016). The 12-year education system consists of primary education (five years), lower secondary education (four years) and upper secondary education (three years), as shown in Table 2. Primary education caters to children starting at age six. The curriculum for the 12-year system was developed that has consistency and continuity with the previous curriculum (Mongolian Institute for Educational Research, 2019e).
| 18 | Bachelor degree (4-6 years) | Diploma (Insttiution and college) | Technical education (3 years) | Technical education (1.5 years) |
|---|---|---|---|---|
| | | | | Vocational education (1 year) |
| 15 | Upper secondary education (3 years) | | | |
| 11 | | | | |
| 6 | | | | |
Above all, it can be seen that the educational system in Mongolia has undergone many reforms over the last three decades. Improvements were made in the educational standards, curriculum, and teaching methodology in the past. The improvement of the curriculum is shown in Table 3.
Table 3. The main changes that influ enced the alteration of the curricula
| Year | Characteristics of the curriculum |
|---|---|
| 1992 | The curriculum has been developed, phasing out heavy Soviet influence and communist ideology and reviving Mongolian natoinal heritage (Robinson, 1995), national culture, customs (Galsan, 2008), and science and technology (Spaulding, 1990). |
| 1998 | The content was flexible and suggested alternatvie content in view of the pupils' particular interests and needs. |
| 2005 | The 11-year content framework was initiated in line with the educatoinal standard for subjects in all grades, and it incorporated knowledge and skills defined in the educational standards. |
| 2008 | 12-year curriculum that provides succession and incorporates correlation of an 11-year content Framework. |
| 2013 | Competency-based curriculum which embeds knowledge and skills that meet international standards. |
| 2019 | Updated the curriculum by revising the content and learning objectvies. |
Historical background of the present English language curriculum of upper-secondary education
English, as the most influential foreign language, has been learned on a large scale in Mongolia (Batchuluun, 1996) following the democratic revolution of 1990. English now has an immense role in both institutional and non-institutional contexts (Dovchin, 2017). The curricula of the English language were developed for primary, lower-secondary, and upper-secondary education levels. The current English language curriculum of uppersecondary education can be traced back to cooperation between the government of Mongolia and Cambridge English Language Assessment, Cambridge International Examinations and the Cambridge University Faculty of Education.
The Government of Mongolia decided to adopt and use the Cambridge International teaching methods and assessment standards in Mongolia, with the aim of training a globally competitive, skilled labour force. In 2011, the Government of Mongolia signed a Memorandum of Understanding with Cambridge International Examinations (CIE) for cooperation on the reform of standards and curricula for elementary and secondary education (Nookoo, 2016).
The curriculum needed to be modernised, and the government wanted to introduce a new, more modern and interactive pedagogical approach. The aim was to develop a system in which high-quality education was available across the entire country, where every child could flourish and realise their individual talents. The Mongolia-Cambridge Education Initiative was formed. The goal of the Mongolia-Cambridge Education Initiative was to undertake a joint collaborative program to reform education in Mongolia using the combined skills and knowledge of the Mongolian government, Cambridge Assessment International Education, Cambridge Assessment English and the Faculty of Education at the University of Cambridge (Cambridge Assessment International Education, 2018). The long-term project goal is to build a world-class education system incorporating internationally recognised best practices and standards. The collaboration project also includes teacher training, capacity building, performance and quality assurance, and development (Khalifa & Brooker, 2018, p. 12). In order to introduce this program, a pilot study was undertaken in Mongolia (Nookoo, 2016) from 2011 to 2016. The first phase, covering curriculum reform and a new assessment model, was piloted by over 40 schools across the country and resulted in a national rollout starting in 2014 (Khalifa & Brooker, 2018, p. 12). The scope of the reform in the curriculum was English, Mathematics, and Science for primary education and English, Mathematics, Physics, Biology and Chemistry for secondary education (Cambridge Assessment International Education, 2018) that will be adjusted to Cambridge International standards. It is considered to be one of the most reputable teaching and testing programs globally. The main prerequisite for the successful achievement of the learning objectives is to have a detailed 'Scheme of work', which provides clear guidance to schools and teachers on how to implement the standards. This Scheme of work includes detailed guidelines for teachers regarding the learning objectives and the methods to be used in the teaching process (Nookoo, 2016). Nookoo (2016) highlighted that heated public discussion and debates are still going on about whether English curricula can be borrowed and adapted for national schools or whether such curricula should be developed purely based on national traditions.
The election happened, and the new government took office in 2012. The government started 'working towards the implementation of the Education Quality Reform policy and Educated Mongolian Citizens national programs' (Nookoo, 2016). Within this framework, the curriculum was revised and decided to be expanded to all schools nationally. Based on the decision by the Minister of Education, Culture, Science and Sports, committees were created for all subjects to develop curricula accordingly. From 2012 to 2017, the committee developed a curriculum to develop cognitive, social and behavioural attitudes, bring the national education content, methodology and system up to international educational standards, and teach a self-study approach. Learning guidelines for its implementation have been developed for each level of education and subject (Mongolian Institute for Educational Research, 2019e). The curriculum was reformed and implemented according to the following stages, as illustrated in Table 4.
Table 4. Timeline of implementation of competency-based curriculum (Mongolian Institute for Educational Research, 2019e)
Mongolia currently has a 12-year education system. There are 5 years for primary education, 4 years for lower-secondary education and 3 years for upper-secondary education. From 5th grade, the English language has started being taught in public schools beginning with A1 level, and the students graduate with low B1 level as shown in Table 5.
Table 5. Language levels of English language curriculum in Mongolia based on the CEFR (Mongolian Institute for Educational Research, 2019b)
| Primary education (English language is taught starting from the 5th grade) | 5th grade |
|---|---|
| Lower-secondary education | 6th grade |
| | 7th grade |
| | 8th grade |
| | 9th grade |
| Upper-secondary education | 10th grade |
| | 11th grade |
| | 12th grade |
Public schools implemented the National Curriculum for English Language Education, which was designed by the Ministry of Education and Science (MES) following the Common European Framework of Reference for Languages (CEFR) English levels of A1–B1 in 2015 (Marav, 2022). CEFR encourages a communicative approach to teaching, but it is not broken down by grade level. Thus, each country has to create lessons, textbooks and assessments based on the framework. Mongolia has created core curricula, identified which level corresponds to which grade and formulated its learning objectives and assessment criteria based on CEFR standards (Ragchaa, 2020). These learning objectives are introduced to the students through the curricular topics. According to Mongolian Institute for Educational Research (2019d), the upper-secondary English language curriculum has common themes in the curricular topics including daily life, individual and social life, environment, education, employment, business world, information communication, external world, arts, cultures and creative thinking.
The curriculum emphasises student-centeredness, group activities and hands-on learning (Ragchaa, 2020). Cambridge English is supporting the development of an English language curriculum, making sure it conforms to Mongolia's educational values and beliefs and also meets the specific needs and demands of the country's education system (Khalifa & Brooker, 2018, p. 12). Locally written textbooks, designed within the framework of the curriculum for every grade at the primary and secondary levels, are used by Mongolian public schools (Marav, 2022).
According to Mongolian Institute for Educational Research (2019b), the English language curriculum in Mongolia has been developed as the CEFR's learning objective-oriented for English education. The aim of English language teaching is to provide learning conditions for students to achieve communicative competence in social contexts, including family, school, local community, country and global world, and environmental issues studied through curriculum content given in a levelled form graded according to difficulty. The English course for each grade aims to fulfil learning objectives and develop students' English language skills, such as listening and speaking, reading and writing with some relevant vocabulary and pronunciation patterns within social contexts. Some learning objectives have been reformulated in accordance with the cognitive levels of Bloom's taxonomy to assess and evaluate the student's knowledge and abilities.
Along with this general aim, the aim of the upper-secondary English language curriculum was developed, and its aim is that students learn the skills to utilise information and further use foreign language knowledge creatively and communicate in accordance with needs and interests within the framework of society, culture, science and life (Ministry of Education, Culture, Science and Sports, 2019). The curriculum content is given in a levelled form graded according to difficulty (Mongolian Institute for Educational Research, 2019b). Moreover, the scope of the curriculum is to develop skills and knowledge to international standards and formative assessment practices where teachers can evaluate their students' skills as well as subject content (Mongolian Institute for Educational Research, 2019b). Overall, the curriculum aims to enhance students' communicative English language skills.
In the upper-secondary education level, The English language curriculum is divided into two parts: compulsory and elective content. Each part delineates the speaking, writing, listening, reading, and use of grammar skills (Nyamkhuu et al., 2021). The teachers focus on developing students' listening and speaking skills in the 11th grade and reading and writing skills in the 12th grade (Ministry of Education, Culture, Science and Sports, 2019). Students receive three classes of English per week as a mandatory subject in each grade of their school year. Each class consists of 40 minutes (Marav, 2022). The number of classes increases to six if students choose English as an elective subject in grades 10–12. According to the curriculum, the goal of English education in each grade is to develop students' four language skills. Those are speaking, listening, reading, and writing skills along with English Usage, which is particularly intended to improve students' English grammar and vocabulary through student-centred ways of teaching.
Conclusion
It is now understood that the Russian language played an important role as a foreign language until the Mongolian democracy of 1990. However, it was replaced by the English language, and over the last three decades, the number of people wanting to learn English has increased at a higher rate than that of any other foreign language. This is because it brings more opportunities for employment and access to the world. English language education and curriculum already have thirty years of history within the Mongolian education system. It has marked its importance and become an in-demand language in Mongolia. Therefore, the government acknowledged its significance and improved it through the course of history.
English is the mandatory language to learn besides Russian in public schools. Thus, the Mongolian government paid and is paying a lot of attention to English language education by implementing different programs, standards and curricula and introducing international projects and international assessments (Ragchaa, 2020).
The major changes in policy and institutional reforms in Mongolia's education sector have intensified since the democratic revolution. Due to political change, curricula have been changed several times, and because of this change, continual reforms and changes were also made in a short period in relevance to English language curricula for all levels of education based on new policies and regulations. There were four sets of improvements and reforms to the curriculum in 1998, 2008, 2013, and 2019 (UNESCO, 2020). The arrangement of the education system was restructured, and a standard-based core curriculum was introduced in 1998; the 10-year system shifted to an 11-year system in 2006, and the 11-year system shifted to a 12-year system in 2008, and all the curricula were updated by revising the content and learning objectives in 2019. These modifications also influenced the upper-secondary English language curriculum along with other curricula. The core decision that influenced the alteration of the English language curriculum of upper-secondary education was that of the Mongolian government, which decided to adopt and use the Cambridge International teaching methods and assessment standards in Mongolia with the aim of training a globally competitive, skilled labour force and to adjust to Cambridge International standards. The aim of an upper-secondary English language curriculum is that students learn the skills to utilise information and, further, use foreign language knowledge creatively and communicate in accordance with needs and interests within the framework of society, culture, science and life. In upper-secondary education, teachers focus on developing students' listening and speaking skills in the 11th grade and reading and writing skills in the 12th grade, and it is intended for the students to achieve midA2 level in 10th grade and high-A2 level in the 11th grade and graduate with a low-B1 level. I would like to conclude by mentioning that the B1 level enables the student to understand the main points of certain texts that they are familiar with. It still remains a question as to why English language education has developed slowly in Mongolia and why our students still cannot be fluent in speaking and writing or in the underlying listening and reading skills compared to other Asian countries, especially China, Japan and The Philippines (Ragchaa, 2020). I, as a researcher and English language teacher, agree with Ragchaa and have concerns about students' English language proficiency after they graduate. However, it does not relate to the aim and research questions of this paper, but it is noteworthy to highlight and think about.
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Az angol nyelvi tanterv történeti átte kintése és jelenlegi tanterve a felső középiskolában Mongóliában
Tanulmányunkban megkísérlünk történelmi áttekintést nyújtani a mongóliai angolnyelv-oktatás tanterveiről, valamint a jelenlegi felső középfokú angol nyelvi tanterv kialakulásáról. Az angol tanterv fejlődése fontos problémakör, ám a szakirodalomban gyakran figyelmen kívül hagyott téma. Írásunk a szakirodalomban fellelhető hiányosságokat igyekszik pótolni a legújabb adatokkal. Módszertani megközelítésként dokumentumelemzést alkalmaztunk a felső középfokú angolnyelv-oktatás és az angol nyelvi tantervre vonatkozó adatok szintetizálása érdekében.
Kulcsszavak: angolnyelv-oktatás Mongóliában, a felső középfokú angolnyelv-oktatás tanterve, idegen nyelvi tanterv, felső középfokú oktatás.
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Rules And Regulations
| Medical Staff Rules & Regulations | |
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| Appendix A-FAIR HEARING PLAN | 1 |
| Definitions | 1 |
| ARTICLE I- INITIATION OF HEARING | 1 |
| COPY 1.1 RECOMMENDATION OR ACTIONS | 1 |
| 1.2 WHEN DEEMED ADVERSE | 2 |
| 1.3 NOTICE OF ADVERSE RECOMMENDATION OR ACTION | 2 |
| 1.4 REQUEST FOR HEARING | 3 |
| 1.5 WAIVER BY FAILURE TO REQUEST A HEARING | 3 |
| ARTICLE II- HEARING PREREQUISITES | 4 |
| 2.1 NOTICE OF TIME & PLACE FOR HEARING | 4 |
| 2.2 STATEMENT OF ISSUES & EVENTS | 4 |
| 2.3 PRACTITIONER'S WITNESSES | 4 |
| 2.4 EXAMINATION OF DOCUMENTS | 5 |
| 2.5 APPOINTMENT OF HEARING COMMITTEE | 5 |
| ARTICLE III- HEARING PROCEDURE | 6 |
| 3.1 PERSONAL PRESENCE | 6 |
| 3.2 HEARING OFFICER | 6 |
| 3.3 REPRESENTATION | 7 |
| 3.4 RIGHTS OF THE PARTIES | 7 |
| 3.5 PROCEDURE & EVIDENCE | 7 |
Owner
Area
Applicability
Bonnie Stephens
Medical Staff
Community
Medical Center
3.6 OFFICIAL NOTICE
7
| 3.7 BURDEN OF PROOF | 8 |
|---|---|
| 3.8 RECORD OF HEARING | 8 |
| 3.9 POSTPONEMENT | 8 |
| 3.10 PRESENCE OF HEARING COMMITTEE MEMBERS & VOTING | 8 |
| 3.11 RECESSES & ADJOURNMENT | 8 |
| ARTICLE IV- HEARING COMMITTEE REPORT & FURTHER ACTION | 9 |
| 4.1 HEARING COMMITTEE REPORT | 9 |
| 4.2 ACTION ON HEARING COMMITTEE REPORT | 9 |
| 4.3 NOTICE & EFFECT OF RESULT | 9 |
| ARTICLE V- INITIAL & PREREQUISITES OF APPELLATE REVIEW | 10 |
| 5.1 REQUEST FOR APPELLATE REVIEW | 10 |
| 5.2 GROUNDS FOR APPEAL | 10 |
| 5.3 WAIVER BY FAILURE TO REQUEST APPELLATE REVIEW | 10 |
| 5.4 NOTICE OF TIME & PLACE FOR APPELLATE REVIEW | 11 |
| 5.5 APPELLATE REVIEW BODY | 11 |
| ARTICLE VI- APPELLATE REVIEW PROCEDURE | 11 |
| COPY 6.1 NATURE OF PROCEEDINGS | 11 |
| 6.2 WRITTEN STATEMENTS | 11 |
| 6.3 PRESIDING OFFICER | 12 |
| 6.4 ORAL STATEMENT | 12 |
| 6.5 CONSIDERATION OF NEW OR ADDITIONAL MATTERS | 12 |
| 6.6 PRESENCE OF MEMBERS & VOTING | 12 |
| 6.7 RECESSES & ADJOURNMENT | 12 |
| 6.8 ACTIONS TAKEN | 12 |
| 6.9 CONCLUSION | 13 |
| ARTICLE VII- FINAL DECISION OF THE BOARD | 13 |
| ARTICLE VIII- GENERAL PROVISIONS | 13 |
| 8.1 HEARING OFFICER APPOINTED & DUTIES | 13 |
| 8.2 ATTORNEYS | 13 |
| 8.3 NUMBER OF HEARINGS & REVIEWS | 13 |
| 8.4 RELEASE | 14 |
| 8.5 WAIVER | 14 |
ARTICLE IX- AMENDMENT OF FAIR HEARING PLAN
14
| Appendix B-RULES AND REGULATIONS | 14 |
|---|---|
| Definitions | 14 |
| ARTICLE I- ADMISSION OF PATIENTS | 16 |
| 1.1 ADMITTING POLICY | 16 |
| 1.2 ADMITTING POLICY PRIORITIES | 17 |
| 1.3 PATIENT TRANSFERS | 17 |
| 1.4 SUICIDAL PATIENTS | 17 |
| 1.5 DISCHARGE OF PATIENTS | 18 |
| 1.6 DECEASED PATIENT | 19 |
| 1.7 AUTOPSIES | 19 |
| 1.8 UNANTICIPATED OUTCOMES | 19 |
| ARTICLE II- MEDICAL RECORDS | 20 |
| 2.1 PREPARATION/COMPLETION OF MEDICAL RECORDS | 20 |
| 2.2 ADMISSION HISTORY | 20 |
| 2.3 SHCEDULED OPERTIONS/DIAGNOSTIC PROCEDURES | 20 |
| 2.4 PROGRESS NOTES | 21 |
| COPY 2.5 OPERATIVE/PROCEDURAL REPORTS | 21 |
| 2.6 CONSULTATIONS | 21 |
| 2.7 OBSTETRICAL PATIENT HISTORIES | 21 |
| 2.8 CLINICAL ENTRIES/AUTHENTICATION | 21 |
| 2.9 ABBREVIATIONS/SYMBOLS | 22 |
| 2.10 FINAL DIAGNOSIS | 22 |
| 2.11 REMOVAL OF MEDICAL RECORDS | 22 |
| 2.12 ACCESS TO MEDICAL RECORDS | 22 |
| 2.13 PERMANENTLY FILED MEDICAL RECORDS | 22 |
| 2.14 STANDING ORDERS | 22 |
| 2.15 COMPLETION OF MEDICAL RECORDS | 22 |
| 2.16 DEINQUENT MEDICAL RECORDS | 23 |
| 2.17 TREATMENT & CARE WRITTEN ORDERS | 24 |
| 2.18 ALTERATIONS/CORRECTION OF MEDICAL RECORD ENTRIES | 24 |
| 2.19 COMPUTERIZED PHYSICIAN ORDER ENTRY | 24 |
| ARTICLE III- GENERAL CONDUCT OF CARE | 24 |
3.2 WRITTEN/VERBAL/TELEPHONE TREATMENT ORDERS
25
| 3.3 ILLEGIBLE TREATMENT ORDERS | 25 |
|---|---|
| 3.4 PREVIOUS ORDERS | 25 |
| 3.5 ADMINISTRATION OF DRUGS/MEDICATIONS | 25 |
| 3.6 ORDERING/DISPENSING OF DRUGS | 26 |
| 3.7 QUESTIONING OF CARE | 26 |
| 3.8 PATIENT CARE ROUNDS | 26 |
| 3.9 ATTENDING PROVIDER UNAVAILABILITY | 26 |
| 3.10 PATIENT RESTRAINT ORDERS | 26 |
| 3.11 PRACTITIONERS ORDERING TREATMENT | 26 |
| 3.12 TREATMENT OF FAMILY MEMBERS OR SELF-TREATMENT | 27 |
| ARTICLE IV- GENERAL RULES REGARDING SURGICAL CARE | 27 |
| 4.1 RECORDING OF DIAGNOSIS/TESTS | 27 |
| 4.2 ADMISSION OF DENTAL CARE PATIENT | 27 |
| 4.3 ADMISSION OF PODIATRIC PATIENTS | 28 |
| 4.4 INFORMED CONSENT | 29 |
| 4.5 PATIENT REQUESTS & REFUSALS OF TREATMENT | 29 |
| COPY 4.6 EXAMINATION OF SPECIMENS | 29 |
| 4.7 ELECTIVE SURGERY SCHEDULING | 29 |
| 4.8 POST-OPERATIVE EXAMINATION | 30 |
| 4.9 ANESTHESIA | 30 |
| 4.10 POST ANESTHESIA EVALUATION | 31 |
| 4.11 ORGAN & TISSUE DONATIONS | 31 |
| ARTICLE V- GENERAL RULES REGARDING OBSTETRICAL CARE | 32 |
| 5.1 CARE OF HIGH RISK NEWBORNS | 32 |
| 5.2 LABOR & DELIVERY | 32 |
| 5.3 EMERGENCY MEDICAL SCREENING OF WOMEN IN LABOR | 32 |
| 5.4 PATIENTS PRESENTING TO LABOR & DELIVERY UNIT | 32 |
| ARTICLE VI- EMERGENCY MEDICAL SCREENING, TREATMENT, TRANSFER & ON-CALL ROSTER | 33 |
| 6.1 SCREENING, TREATMENT & TRANSFER | 33 |
| 6.2 CONSULTATIONS, REFERRALS & EMERGENCY DEPARTMENT CALL | 34 |
| ARTICLE VII- ADOPTION & AMENDMENT OF RULES & REGULATIONS | 36 |
| 7.2 ADOPTION, AMENDMENT & REVIEWS | 36 |
|---|---|
| 7.3 DOCUMENTATION & DISTRIBUTION OF AMENDMENTS | 36 |
| 7.4 SUSPENSION, SUPPLEMENTATION, OR REPLACEMENT | 37 |
| Appendix C-POLICY REGARDING BEHAVIOR THAT UNDERMINES A CULTURE OF SAFETY | 37 |
| 1.1 PURPOSE & OBJECTIVE | 37 |
| 2.1 BEHAVIOR THAT UNDERMINES A CULTURE OF SAFETY | 38 |
| 3.1 REPORTING OF UNDERMINING BEHAVIOR | 39 |
| 4.1 DOCUMENTATION | 39 |
| 5.1 INVESTIGATION | 40 |
| 6.1 MEETING WITH PRACTITIONER | 40 |
| 7.1 DISCIPLINARY ACTION PURSUANT TO BYLAWS | 41 |
| Appendix D-PROVIDER WELLNESS POLICY | 42 |
| 1.1 REPORT & REVIEW | 42 |
| 2.1 REHABILITATION & REINSTATEMENT GUIDELINES | 45 |
| Appendix E- PROFESSIONAL PERFORMANCE REVIEW POLICY | 48 |
| 1.1 PURPOSE | 48 |
| 2.1 SCOPE | 49 |
| COPY 3.1 DEFINITIONS | 49 |
| 4.1 POLICY | 49 |
| 5.1 SCREENING | 50 |
| 6.1 RESPONSIBILITIES | 50 |
| 7.1 CRITERIA/INDICATORS FOR REVIEW | 51 |
| 8.1 REVIEW PROCESS | 51 |
| 9.1 OPPE | 53 |
| 10.1 FPPE | 53 |
| 11.1 RATING SCALE | 54 |
| 12.1 ACTIONS BASED ON THE RATINGS | 55 |
| 13.1 EXTERNAL PEER REVIEW | 57 |
| 14.1 DOCUMENTATION | 57 |
| 15.1 REPORTING | 57 |
| 16.1 CONFIDENTIALITY & MAINTENANCE OF FILES | 57 |
APPENDIX A – FAIR HEARING PLAN
This Fair Hearing Plan is adopted in connection with the Medical Staff Bylaws and made a part thereof. The definitions and terminologies of the Bylaws also apply to the Fair Hearing Plan and proceedings
hereunder.
DEFINITIONS
The following definitions, in addition to those stated in the Medical Staff Bylaws or herein, shall apply to the provisions of this Fair Hearing Plan.
1. "Appellate Review Body" means the group designated pursuant to this Plan to hear a request for Appellate Review that has been properly filed and pursued by the practitioner.
2. "Corporation" shall mean RCHP Billings-Missoula, LLC d/b/a Community Medical Center.
3. "Hearing Committee" means the committee appointed pursuant to this Plan to hear a request for an evidentiary hearing that has been properly filed and pursued by a practitioner.
4. "Parties" means the practitioner who requested the hearing or Appellate Review and the body or bodies upon whose adverse action a hearing or Appellate Review request is predicated.
5. "Special Notice" means written notification sent by certified or registered mail, return receipt requested, or delivered by hand with a written acknowledgment of receipt.
ARTICLE I - INITIATION OF HEARING
1.1 RECOMMENDATION OR ACTIONS
5. Denial of requested advancement of staff category, if such denial materially limits the physician's exercise of privileges.
COPY The following recommendations or actions shall, if deemed adverse pursuant to Article I, Section 1.2 of this Fair Hearing Plan (Plan), entitle the practitioner affected thereby to a hearing: 1. Denial of initial staff appointment; 2. Denial of reappointment; 3. Suspension of staff membership in excess of fourteen (14) days/ except for automatic suspensions pursuant to the Medical Staff Bylaws; 4. Revocation of appointment/staff membership;
6. Reduction of staff category due to an adverse determination as to a practitioner's competence or professional conduct;
7. Limitation of the right to admit patients;
8. Denial of an initial request for particular clinical privileges;
9. Reduction of clinical privileges for a period in excess of thirty (30) days;
10. Permanent suspension of clinical privileges;
11. Revocation of clinical privileges;
12. Terms of probation, if such terms of probation materially restrict the physician's exercise of privileges for more than thirty (30) days; and
13. Summary suspension of privileges or staff membership for a period in excess
of fourteen (14) days.
14. mandatory concurring consultation requirement (i.e., the consultant must approve the course of treatment in advance); or
15. denial of reinstatement from a leave of absence if the reasons relate to professional competence or conduct.
1.2 WHEN DEEMED ADVERSE
A recommendation or action listed in Article I, Section 1.1 of this Plan shall be deemed adverse only if it is based upon competence or professional conduct, is practitioner-specific and has been:
1. Recommended by the MEC; or
2. Taken by the Board contrary to a favorable recommendation by the MEC under circumstances where no right to hearing existed; or
3. Taken by the Board on its own initiative without prior recommendation by the MEC.
1.3 NOTICE OF ADVERSE RECOMMENDATION OR ACTION
A recommendation by the Medical Executive Committee that would entitle the individual to request a hearing will be forwarded to the CEO, who will promptly inform the individual by special notice.
A practitioner against whom an adverse recommendation or action has been taken pursuant to Article I, Section 1.1 of this Plan shall promptly be given special notice of such action. Such notice shall:
COPY 1. Advise the practitioner of the basis for the action and his/her right to a hearing pursuant to the provisions of the Medical Staff Bylaws of this Plan; 2. Specify that the practitioner has thirty (30) days following the date of receipt of notice within which a request for a hearing must be submitted in writing; 3. State that failure to request a hearing within the specified time period shall constitute a waiver of rights to a hearing and to an Appellate Review of the matter; 4. State that upon receipt of this hearing request, the practitioner will be notified of the date, time and place of the hearing, the grounds upon which the adverse action is based, and a list of the witnesses expected to testify in support of the adverse action;
5. Provide a summary of the practitioner's rights at the hearing; and
6. Inform the practitioner if the recommended action may be reportable to the National Practitioner Data Bank and appropriate licensing agencies.
1.4 REQUEST FOR HEARING
A practitioner shall have thirty (30) days following his/her receipt of a notice pursuant to Article I, Section 1.3 to file a written request for a hearing. Such request shall be delivered to the CEO either in person or by certified or registered mail and will include, at minimum, the name of the individual's counsel, if any. Together with any request for hearing, the individual making the request shall provide to the Medical Center President written assurance that all documents and information will be maintained as confidential and will not be disclosed or used for any purpose outside the hearing. The individual shall also provide a written representation that his or her counsel and any expert(s) have executed Business Associate agreements in connection with any patient Protected Health Information contained in any documents provided.
1.5 WAIVER BY FAILURE TO REQUEST A HEARING
A practitioner who fails to request a hearing within the time and in the manner specified waives any right to such hearing and to any Appellate Review to which he/she might otherwise have been entitled. Such waiver in connection with:
1. An adverse recommendation or action by the Board, CEO, or their designees, shall constitute acceptance of that recommendation or action. (Hereinafter, references to decisions by these entities or individuals shall be designated as decisions or actions of the Board); and
2. An adverse recommendation by the MEC or its designee shall constitute acceptance of that recommendation, which shall thereupon become and remain effective pending the final decision of the Board. The Board shall consider the MEC's recommendation at its next regular meeting following the waiver. In its deliberations, the Board shall review all relevant information and material considered by the MEC and may consider all other relevant information received from any source. The Board's action on the matter shall constitute a final decision of the Board. The CEO shall promptly send the practitioner special notice informing him/her of each action taken pursuant to this Article I, Section 1.5(2) and shall notify the Medical Staff President and the MEC of each such action.
ARTICLE II- HEARING PREREQUISITES
2.2 STATEMENT OF ISSUES & EVENTS
COPY 2.1 NOTICE OF TIME & PLACE FOR HEARING Upon receipt of a timely request for hearing, the CEO shall deliver such request to the Medical Staff President or to the Board, depending on whose recommendation or action prompted the request for hearing. The CEO will send the practitioner special notice of the time, place, and date of the hearing. The hearing date shall not be less than thirty (30) nor more than ninety (90) days from the date of receipt of the request for hearing; unless an earlier hearing date has been specifically agreed to in writing by the parties; provided, however, that a hearing for a practitioner who is under suspension then in effect shall, at the practitioner's request, be held as soon as arrangements for it reasonably may be made, but not later than thirty (30) days from the date of receipt of the request for hearing.
The notice of hearing required by Article II, Section 2.1 shall contain a concise statement of the practitioner's alleged act or omissions, and a list by number of specific patient records in question (if applicable) and/or the other reasons or subject matter forming the basis for the adverse recommendation or action which is the subject of the hearing. If adverse action was based on, or included, professional misconduct, specific dates, locations, and details of alleged misconduct shall be included in the notice of hearingThe notice shall further contain a list of witnesses expected to testify in support of the adverse recommendation or action.
2.3 PRACTITIONER'S WITNESSES
At least ten (10) days prior to the scheduled hearing under Section 2.2, the affected practitioner shall deliver, by special notice, a list of witnesses expected to testify on his/her behalf at the due process hearing.
The witness list of either party may, in the discretion of the Presiding Officer, be amended at any time during the course of the hearing, provided that notice of the change is given to the other party.
Neither the affected practitioner, nor any other person acting on behalf of the affected practitioner, may contact Medical Center employees whose names appear on the Medical Executive Committee's witness list or in documents provided pursuant to this section concerning the subject matter of the hearing, until the Medical Center has been notified and has contacted the employees about their willingness to be interviewed. The Medical Center will advise the affected practitioner once it has contacted such employees and confirmed their willingness to meet. Any employee may agree or decline to be interviewed by or on behalf of the affected practitioner who requested a hearing.
2.4 EXAMINATION OF DOCUMENTS
The practitioner will be allowed to examine any documents to be introduced in support of the adverse recommendation. The body initiating the adverse action shall also be entitled to examine all documents expected to be produced by the practitioner at the hearing. The parties shall exchange such documents at a mutually agreeable time at least ten (10) days prior to the hearing. Copies of any patient charts, which form the basis for the adverse action shall be made available to the practitioner, at his/her expense, within a reasonable time after a request is made for same.
2.5 APPOINTMENT OF HEARING COMMITTEE
The affected individual shall have ten (10) days after notice of the appointment of the Hearing Committee members to object and identify in writing the basis for the objection, which the affected individual believes should disqualify the Hearing Committee member(s). from service.The failure of the affected individual to object and identify any basis for objection as stated above shall constitute a waiver of any such right. Within seven (7) days of the receipt of the objections, the Medical Staff President shall determine whether such grounds asserted by the affected individual are sufficient for disqualification. If a determination is made that a disqualification is appropriate, a replacement shall be appointed within seven (7) days of the determination. The Medical Staff President shall advise the affected individual accordingly. One (1) of the members so appointed shall be designated as Chairperson by Medical Staff President.
COPY 2.5(a) By Medical Staff A hearing occasioned by an adverse MEC recommendation pursuant to Article I, Section 1.2(1) shall be conducted by a Hearing Committee appointed by the Medical Staff President and composed of three (3) members of the Medical Staff. None of the Hearing Committee members shall be partners, associates, relatives or in direct economic competition with the affected individual. Should the Medical Staff President find it impossible to appoint a committee meeting the above requirements or otherwise find good cause to utilize practitioners outside the staff, he/she may, upon approval by the CEO, appoint an independent panel of three (3) practitioners meeting all requirements of this section with the exception of Medical Staff membership.
Employment by, or other contractual arrangement with, the Medical Center or an affiliate will not preclude an individual from serving on the Panel.
2.5(b) By Board
A hearing occasioned by an adverse action of the Board pursuant to Article I, Section 1.2(2) or 1.2(3)
shall be conducted by a Hearing Committee appointed by the Chairperson of the Board and composed of three (3) physicians when feasible. At least one (1) Active Medical Staff member shall be included on this committee. Should the Board Chairperson find it impossible to appoint a committee meeting the above requirements or otherwise find good cause to utilize a practitioner outside the staff, he/she may, upon approval by the CEO, appoint a practitioner meeting all requirements of this section with the exception of Active Medical Staff membership. One (1) of the appointees to the committee shall be designated as Chairperson. If the matter concerns or arises from issues regarding a practitioner's clinical competence or performance, the Hearing Committee must be composed of three (3) physicians who may or may not be members of the Hospital's Medical Staff.
The affected individual shall have ten (10) days after notice of the appointment of the Hearing Committee members to object and identify in writing, any conflict of interest with any Hearing Committee members which the affected individual believes should disqualify the Hearing Committee member(s) from service. The failure of the affected individual to object and identify any conflict of interest as stated above shall constitute a waiver of any such right. Within seven (7) days of the receipt of the objections, the Board Chairman shall determine whether such grounds asserted by the affected individual are sufficient for disqualification. If a determination is made that a disqualification is appropriate, a replacement shall be appointed within seven (7) days of the determination. The Board Chairman shall advise the affected individual accordingly. One (1) of the members so appointed shall be designated as Chairperson.
COPY 2.5(c) Service on Hearing Committee Individuals who were involved in the initial investigation, and/or members of the Medical Executive Committee or Board who voted against the provider shall not serve on the Hearing Committee. Employment by, or other contractual arrangement with, the Medical Center or an affiliate will not preclude an individual from serving on the Panel. ARTICLE III -HEARING PROCEDURE
3.1 PERSONAL PRESENCE
The personal presence of the practitioner who requested the hearing shall be required. A practitioner who fails without good cause to appear and proceed at such hearing shall be deemed to have waived his/her rights to a hearing in the same manner and with the same consequence as provided in Article I, Section 1.5. and the matter will be transmitted to the Board for final action.
3.2 HEARING OFFICER
The Hearing Officer shall be appointed pursuant to Article VIII, Section 8.1. The Hearing Officer shall act to maintain decorum and to assure that all participants in the hearing have a reasonable opportunity to present relevant oral and documentary evidence, subject to reasonable limits on the number of witnesses and duration of direct and cross-examination. He/She shall be entitled to determine the order of procedure during the hearing and shall make all rulings on matters of law, procedure, and the admissibility of evidence.
The Hearing Officer may participate in the private deliberations of the Hearing Panel and be a legal
advisor to it but will not be entitled to vote on its recommendations.
3.3 REPRESENTATION
The practitioner who requested the hearing shall be entitled to be accompanied and represented at the hearing by an attorney, a member of the Medical Staff in good standing, a member of his/her local professional society, or other individual of the physician's choice. The MEC or the Board, depending on whose recommendation or action prompted the hearing, shall appoint an individual to present the facts in support of its adverse recommendation or action, and to examine the witnesses. Either party may be represented by an attorney at law. The hearing will be restricted to those individuals participating in the proceeding or acting in support thereof. Administrative personnel may be present as requested by the Medical Center President or the Medical Staff President.
3.4 RIGHTS OF THE PARTIES
During a hearing, each of the parties shall have the right to:
1. Call and examine witnesses to the extent they are available and willing to testify.
2. Present evidence determined to be relevant by the Presiding Officer, regardless of its admissibility in a court of law.
COPY 3. Cross-examine any witness on any matter relevant to the issues. 4. Impeach any witness. 5. Rebut any evidence. 6. Have a record made of the proceeding, copies of which may be obtained by the physician upon payment of any reasonable charges associated with the preparation thereof; and 7. Submit a written statement at the close of the hearing. 8. The Hearing Panel may question witnesses, request the presence of additional witnesses, and/ or request documentary evidence
If any practitioner who requested the hearing does not testify on his/her own behalf, he/she may be called and examined as if under cross-examination.
3.5 PROCEDURE & EVIDENCE
The hearing need not be conducted strictly according to rules of law relating to the examination of witnesses or presentation of evidence although these rules may be considered in determining the weight of the evidence. Any relevant matter upon which responsible persons customarily rely in the conduct of serious affairs shall be admitted, regardless of admissibility of such evidence in a court of law. Each party shall, prior to or during the hearing, be entitled to submit memoranda concerning any issue of law or fact, and such memoranda shall become part of the hearing record. The Hearing Officer may, but shall not be required to, order that oral evidence be taken only on oath or affirmation administered by any person designated by him/her and entitled to notarize documents in the state where the hearing is held.
3.6 OFFICIAL NOTICE
In reaching a decision, the Hearing Committee may take official notice, either before or after submission of the matter for decision, of any generally accepted technical, medical, or scientific matter relating to the issues under consideration and of any facts that may be judicially noticed by the courts of the state where the hearing is held. Parties present at the hearing shall be informed of the matters to be noticed and those matters shall be noted in the record of the hearing. Any party shall be given opportunity on timely motion, to request that a matter be officially noticed and to refute the officially noticed matters by evidence or by written or oral presentation of authority, the manner of such refutation to be determined by the Hearing Committee.
3.7 BURDEN OF PROOF
1. When a hearing relates to the matters listed in Article I, Sections 1.1(1), 1.1(5) or 1.1(8), the practitioner who requested the hearing shall have the burden of proving, by clear and convincing evidence, that the adverse recommendation or action lacks any substantial factual basis or that the action is arbitrary, capricious, or impermissibly discriminatory.
2. For the other matters listed in Article I, Section 1.1, the body whose adverse recommendation or action occasioned the hearing (the Medical Executive Committee or the Board) shall bear the burden of proof, the body must demonstrate by a preponderance of the evidence, that the actions taken were reasonable and appropriate. The standards of proof set forth herein shall apply and be binding upon the Hearing Committee and on any subsequent review or appeal.
3.10 PRESENCE OF HEARING COMMITTEE MEMBERS & VOTING
COPY 3.8 RECORD OF HEARING A record of the hearing shall be kept that is of sufficient accuracy to permit an informed and valid judgment to be made by any group that later may be called upon to review the record and render a recommendation or decision in the matter. The method of recording the hearing shall be by use of a court reporter. The cost of the reporter will be borne by the Medical Center. Copies of the transcript will be available at the individual's expense. 3.9 POSTPONEMENT Request for postponement of a hearing shall be granted by agreement between the parties or the Hearing Committee only upon a showing of good cause and only if the request therefor is made as soon as is reasonably practical.
A majority of the Hearing Committee must be present throughout the hearing and deliberations. If a committee member is absent from a substantial portion of the proceedings, he/she shall not be permitted to participate in the deliberations of the decision.
3.11 RECESSES & ADJOURNMENT
The Hearing Committee may recess the hearing and reconvene the same without additional notice for the convenience of the participants or for the purpose of obtaining new or additional evidence for consultation. Upon conclusion of the presentation of oral and written evidence, the hearing shall be closed. The Hearing Committee shall thereupon, at a time convenient to itself, conduct its deliberations outside the presence of the parties and without a record of the deliberation being made. Upon conclusion of its deliberations, the hearing shall be declared finally adjourned.
ARTICLE IV
HEARING COMMITTEE REPORT & FURTHER ACTION 4.1 HEARING COMMITTEE REPORT
Within fourteen (14) days after the transcript of the proceedings has been delivered to the proper officer of the hearing, or if no transcript is ordered, then thirty (30) days after the hearing ends, the Hearing Committee shall make a written report of its findings and
recommendations in the matter. The Hearing Committee shall forward the same, together with the hearing record and all other documentation considered by it, to the Board or the MEC, for action consistent with Section 4.2 below. All findings and recommendations by the Hearing Committee shall be supported by reference to the hearing record and the other documentation considered by it. Recommendations must be made by a majority vote of the members and the committee may only consider the specific recommendations or actions of the Board or MEC. The practitioner who requested the hearing shall be entitled to receive the written recommendations of the Hearing Committee, including a statement of the basis for the recommendation.
4.2 ACTION ON HEARING COMMITTEE REPORT
If the MEC initiated the action, and the Hearing Committee's report alters, amends, or modifies the MEC's recommendation, the MEC shall take action on the Hearing Committee report no later than twenty-eight (28) days after receipt of same, and prior to any appeal by the practitioner. If the MEC initiated the action and the Hearing Committee has not altered, amended, or modified the MEC recommendation, or if the Board initiated the action and the action remains averse to the practitioner, the practitioner shall be given notice of the right to appeal pursuant to Section 4.3(c) prior to final action by the Board. If the Board initiated the action, and the Hearing Committee recommendation is favorable to the practitioner, the Board shall take action on the Hearing Committee's report no later than twenty-eight (28) days from receipt of same.
2. Adopted by the Medical Executive Committee: If the MEC's result is favorable to the practitioner, the CEO or Medical Staff President shall promptly forward it, together with all supporting documentation, to the Board for its final action. The Board shall take action thereon by adopting or rejecting the MEC's result in whole or in part, or by referring the matter back to the MEC for further consideration. Any such referral back shall state the reasons therefore, set a time limit within which a subsequent recommendation to the Board must be made, and may include a directive that an additional hearing be conducted to clarify issues that are in doubt. After receipt of such subsequent recommendation and any new evidence in the matter, and consultation with the Corporation as necessary, the Board shall take final action. The CEO shall promptly send the practitioner special notice informing him/ her of each action taken pursuant to this Article IV, Section 4.3(b)(2). Favorable action shall become the final decision of the Board, and the matter shall be considered finally closed.
COPY 4.3 NOTICE & EFFECT OF RESULT 4.3(a) Notice The CEO shall promptly send a copy of the result to the practitioner by special notice, including a statement of the basis for the decision. 4.3(b) Effect of Favorable Result 1. Adopted by the Board : If the Board's result is favorable to the practitioner, such result shall become the final decision of the Board and the matter shall be considered finally closed.
4.3(c) Effect of Adverse Result
At the conclusion of the process set forth in Section 4.2, if the result continues to be adverse to the practitioner in any of the respects listed in Article I, Section 1.1 of this Plan, the practitioner shall be informed, by special notice of his/her right to request an Appellate Review as provided in Article V, Section 5.1 of this Plan. Said notice shall be delivered to the practitioner no later than fourteen (14) days from the MEC action, or Hearing Committee report, as appropriate under Section 4.2.
ARTICLE V
INITIAL & PREREQUISITES OF APPELLATE REVIEW 5.1 REQUEST FOR APPELLATE REVIEW
A practitioner shall have fourteen (14) days following his/her receipt of a notice pursuant to Article IV, Section 4.3(c) to file a written request for an Appellate Review. Such request shall be delivered in writing to the CEO either in person or by certified or registered mail and may include a request for a copy of the report and record of the Hearing Committee and all other material, favorable or unfavorable, if not previously forwarded, that was considered in reaching the adverse result.
5.2 GROUNDS FOR APPEAL
The grounds for appeal will be limited to the following:
(a) there was substantial failure by the Hearing Panel to comply with this Policy and/ or the Bylaws of the Medical Center or Medical Staff during the hearing, so as to deny a fair hearing; and/or
(b) the recommendations of the Hearing Panel were made arbitrarily or capriciously and/or were not supported by credible evidence.
COPY 5.3 WAIVER BY FAILURE TO REQUEST APPELLATE REVIEW A practitioner who fails to request an Appellate Review within the time and manner specified in Article V, Section 5.1 shall be deemed to have waived any right to such review. Such waiver shall have the same force and effect as that provided in Article I, Section 1.5 of this Plan. 5.4 NOTICE OF TIME & PLACE FOR APPELLATE REVIEW Upon receipt of a timely request for Appellate Review, the CEO shall deliver such request to the Board. As soon as practicable, the Chair of the Board shall schedule and arrange for an Appellate Review which shall be not less than twentyone (21) days from the date of receipt of the Appellate Review request; provided, however, that an Appellate Review for a practitioner who is under a suspension then in effect shall be held as soon as the arrangements for it may reasonably be made, but not later than twenty-one (21) days from the date of receipt of the request for review. At least ten (10) days prior to the Appellate Review, the CEO shall send the practitioner special notice of the time, place, and date of the review. The time for the Appellate Review may be extended by the Appellate Review Body for good cause and if the request therefore is made as soon as reasonably practical.
5.5 APPELLATE REVIEW BODY
The Appellate Review Body shall be composed of the Board of Trustees or a committee of at least three (3) members of the Board of Trustees. One (1) of its members shall be designated as the Chairperson of the committee.
ARTICLE VI
APPELLATE REVIEW PROCEDURE
6.1 NATURE OF PROCEEDINGS
The proceedings of the Appellate Review Body shall be in the nature of an Appellate Review based upon the record of the hearing before the Hearing Committee, and the committee's report, and all subsequent results and actions thereon. The Appellate Review Body also shall consider the written statements, if any, submitted pursuant to
Article VI, Section 6.2 of this Plan and such other material as may be presented and accepted under Article VI, Sections 6.4 and 6.5 of this Plan. The Appellate Review Body shall apply the standards of proof set forth in Article III, Section 3.7.
6.2 WRITTEN STATEMENTS
The practitioner seeking the review shall submit a written statement detailing the findings of fact, conclusions, and procedural matters with which he/she disagrees, and his/her reasons for such disagreement. This written statement may cover any matters raised at any step in the hearing process but may not raise new factual matters not presented at the hearing. The statement shall be submitted to the Appellate Review Body through the CEO at least seven (7) days prior to the scheduled date of the Appellate Review, except if such time limit is waived by the Appellate Body. A written statement in reply may be submitted by the MEC or by the Board, and if submitted, the CEO shall provide a copy thereof to the practitioner at least three (3) days prior to the scheduled date of the Appellate Review.
6.3 PRESIDING OFFICER
The Chairperson of the Appellate Review Body shall be the Presiding Officer. He/ She shall determine the order of procedure during the review, make all required rulings, and maintain decorum.
COPY 6.4 ORAL STATEMENT The Appellate Review Body, in its sole discretion, may allow the parties or their representatives to personally appear and make oral statements supporting their positions, not to exceed 20 minutes. If the Appellate Review Body allows one of the parties to make an oral statement, the other party shall be allowed to do so. Any party or representative so appearing shall be required to answer questions put to him/her by any member of the Appellate Review Body. 6.5 CONSIDERATION OF NEW OR ADDITIONAL MATTERS
New or additional matters or evidence not raised or presented during the original hearing or in the hearing report, and not otherwise reflected in the record shall not be introduced at the Appellate Review, except by leave of the Appellate Review Body. The Appellate Review Body, in its sole discretion, shall determine whether such matters or evidence shall be considered or accepted, following establishment of good cause by the party requesting the consideration of such matter or evidence as to why it was not presented earlier. If such additional evidence is considered, it shall be subject to cross examination and rebuttal.
6.6 PRESENCE OF MEMBERS & VOTING
A majority of the Appellate Review Body must be present throughout the review and deliberations. If a member of the Appellate Review Body is absent from a substantial portion of the proceedings, he/she shall not be permitted to participate in the deliberations or the decision.
6.7 RECESSES & ADJOURNMENT
The Appellate Review Body may recess the review proceedings and reconvene the same without additional notice for the convenience of the participants or for the purpose of consultation. Upon the conclusion of oral statements, if allowed, the Appellate Review shall be closed. The Appellate Review Body shall thereupon, at a time convenient to itself, conduct its deliberations outside the presence of the parties. Upon the conclusion of those deliberations, the Appellate Review shall be declared finally adjourned.
6.8 ACTIONS TAKEN
The Appellate Review Body may affirm, modify, or reverse the adverse result or action taken by the MEC or by the Board pursuant to Article IV, Section 4.2, or Section 4.3(b)(2) or, in its discretion, may refer the matter back to the Hearing Committee for further review and recommendation to be returned to it within fourteen (14) days and in accordance with its instructions. Within seven (7) days after such receipt of such recommendations after referral, the Appellate Review Body shall make its final determination.
6.9 CONCLUSION
The Appellate Review shall not be deemed to be concluded until all of the procedural steps provided herein have been completed or waived.
ARTICLE VII
FINAL DECISION OF THE BOARD
No later than twenty-eight (28) days after receipt of the recommendation of the Appellate Review Body, or twenty-eight (28) days after waiver of Appellate Review, the Board shall consider the same and affirm, modify, or reverse the recommendation. When a matter of Hospital policy or potential liability is presented, the Board shall consult with Corporation prior to acting. The decision made by the full Board after receipt of the written recommendation from the Appellate Review Body will be deemed final, subject to no further appeal under the provisions of this Fair Hearing Plan. The action of the Board will be promptly communicated to the practitioner in writing by certified mail.
COPY ARTICLE VIII GENERAL PROVISIONS 8.1 HEARING OFFICER APPOINTED & DUTIES The use of a Hearing Officer to preside at an evidentiary hearing is optional. The use and appointment of such an officer shall be determined by the CEO after consulting with the Medical Staff President. A Hearing Officer may or may not be an attorney at law but must be experienced in conducting hearings. He/She shall act as the Presiding Officer of the hearing and participate in the deliberations.
8.2 ATTORNEYS
If the affected practitioner desires to be represented by an attorney at any hearing or any Appellate Review appearance pursuant to Article VI, Section 6.4, his/her initial request for the hearing should state his/her wish to be so represented at either or both such proceedings in the event they are held. The MEC or the Board may be represented by an attorney.
8.3 NUMBER OF HEARINGS & REVIEWS
Notwithstanding any other provision of the Medical Staff Bylaws or of this Plan, no practitioner shall be entitled as of right to more than one (1) evidentiary hearing and Appellate Review with respect to an adverse recommendation or action.
8.4 RELEASE
By requesting a hearing or Appellate Review under this Fair Hearing Plan, a practitioner agrees to be bound by the provisions of the Medical Staff Bylaws relating to immunity from liability in all matters relating thereto.
8.5 WAIVER
If any time after receipt of special notice of an adverse recommendation, action or result, a practitioner fails to make a required request of appearance or otherwise fails to comply with this Fair Hearing Plan or to proceed with the matter, he/she shall be deemed to have consented to such adverse recommendation, action or result and to have voluntarily waived all rights to which he/she might otherwise have been entitled under the Medical Staff Bylaws then in effect or under this Fair Hearing Plan with respect to the matter involved.
ARTICLE IX – AMENDMENT OF FAIR HEARING PLAN
This Appendix A shall only be amended in accordance with Article XV of the Medical Staff Bylaws.
APPENDIX B – RULES AND REGULATIONS
These Rules & Regulations are adopted in connection with the Medical Staff Bylaws and made a part thereof. The definitions and terminologies of the bylaws also apply to the Rules & Regulations and proceedings hereunder APPENDIX
DEFINITIONS
The following definitions apply to terms used in this Policy:
(1) "MEDICAL STAFF-ADVANCED PRACTICE PROFESSIONALS" ("MS-APPs") means individuals other than Medical Staff members who are authorized by law and by the Medical Center to provide patient care services. (e.g.: Physician Assistant-Certified; Advanced Practice Nurses, Certified Nurse Midwife)
4. "CLINICAL PRIVILEGES" or "PRIVILEGES" means the authorization granted by the Board to render specific patient care services, for which the Medical Staff leaders and Board have developed eligibility and other credentialing criteria and focused and ongoing professional practice evaluation standards.
COPY (2) "BOARD" means the Board of Directors of the Medical Center, which has the overall responsibility for the Medical Center, or its designated committee. 3. "BOARD CERTIFICATION" is the designation conferred by one of the affiliated specialties of the American Board of Medical Specialties ("ABMS"), the American Osteopathic Association ("AOA"), the Royal College of Physicians and Surgeons (Canada), the American Board of Podiatric Surgery, or the American Dental Association Boards, upon a practitioner, as applicable, who has successfully completed an approved educational training program and an evaluation process, including passing an examination, in the applicant's area of clinical practice.
5. "CORE PRIVILEGES" or "CORE" means a defined grouping of privileges for a specialty or subspecialty that includes the fundamental patient care services that are routinely taught in residency and/or fellowship training for that specialty or subspecialty and that have been determined by the Medical Staff leaders and Board to require closely related skills and experience.
6. "CREDENTIALS POLICY" means the Medical Center's Medical Staff Policy on Appointment, Reappointment and Clinical Privileges.
7. "DAYS" means calendar days.
8. "DENTIST" means a Doctor of Dental Surgery ("D.D.S.") or Doctor of Dental Medicine ("D.M.D.").
9. "MEDICAL CENTER PRESIDENT" means the individual appointed by the Board to act on its behalf in the overall management of the Medical Center.
10. "MEDICAL EXECUTIVE COMMITTEE" means the Executive Committee of the Medical Staff.
11. "MEDICAL CENTER" means Community Medical Center.
12. "MEDICAL STAFF" means all physicians, podiatrists, and dentists who have been appointed to the Medical Staff by the Board.
13. "MEDICAL STAFF LEADER" means any Medical Staff officer, department chair, section chair, or committee chair.
14. "PATIENT CONTACT" includes any admission, consultation, procedure, response to emergency call, evaluation, treatment, or service performed in any facility operated by the Medical Center or affiliate, including outpatient facilities.
15. "PHYSICIAN" includes both Doctors of Medicine ("M.D.s") and doctors of osteopathy ("D.O.s").
16. "PODIATRIST" means a doctor of podiatric medicine ("D.P.M.").
17. "SPECIAL NOTICE" means hand delivery, certified mail (return receipt requested), or overnight delivery service providing receipt.
18. "SPECIAL PRIVILEGES" means privileges that fall outside of the core privileges for a given specialty, which require additional education, training, and/or experience beyond that required for core privileges in order to demonstrate competence.
COPY 19. "CHIEF MEDICAL OFFICER" means the individual appointed by the Board to act as the chief medical officer of the Medical Center, in cooperation with the Medical Staff President. (CMO) 20. "PRESIDING OFFICER" means any Medical Staff officer, department chair, section chair, committee chair or their designee. ARTICLE I-ADMISSION OF PATIENTS 1.1 ADMITTING POLICY The admission policy is as follows: 1.1(a) Excluding emergencies, all patients admitted to the Hospital shall have a provisional or admission diagnosis. A provisional diagnosis for emergency admissions shall be provided as promptly as possible.
1.1(b) A patient may be admitted to the Hospital only by an attending member of the Medical Staff or APP staff with admitting privileges. The privilege to admit shall be delineated and is not automatic with Medical Staff membership.
1.1(c) Physicians admitting patients shall be held responsible for giving such information as may be necessary to assure protection of other patients or to assure protection of the patient from self-harm.
1.1(d) Emergency Department Physicians, and physicians providing care in the Intensive Care Unit (ICU), shall be required to maintain documentation regarding current ACLS certification. Physicians admitting to ICU without ACLS certification will be required to co-manage the case with an ACLS certified physician.
1.1(e) The management and coordination of each patient's care, treatment and services shall be the responsibility of a provider with appropriate privileges. Each Medical Staff or APP staff member shall be responsible for the medical care and treatment of each of his/her hospitalized patients, for the prompt completeness and accuracy of the medical record, for necessary special instructions, for transmitting reports of the condition of the patient to any referring practitioner and to relatives of the patient where appropriate. The patient shall be provided with pertinent information regarding outcomes of diagnostic tests, medical treatment, and surgical intervention. Whenever a provider's responsibilities are transferred to another staff member, a note covering the transfer of responsibility shall be entered on the
order sheet of the medical records.
1.1(f) Each member of the Medical Staff shall designate a member of the Medical Staff who may be called to care for his/her patients in an emergency at those times the Attending Physician is not readily available. In cases of inability to contact the Attending Physician, the following should be contacted, in order of priority listed below:
1. An alternate physician (preferably a partner, associate, or designee of the Attending Physician);
2. The Medical Staff President, who may assume care for the patient or designate any appropriately trained member of the staff, whichever is appropriate; or
3. In the absence of the above, any appropriately trained member of the Medical Staff requested by the CEO to provide care for the patient.
1.1(g) The provider certification must be completed, signed, dated and documented in the medical record prior to discharge unless otherwise permitted by law. This requires authentication of the order for inpatient admission prior to discharge.
1.2 ADMITTING POLICY PRIORTITIES
COPY Priorities for admission are as follows: 1.2(a) Emergency Admissions the admitting provider shall have a history and physical dictated documenting the need for the admission. Failure to furnish this documentation or evidence of willful or continued misuse of this category of admission will be brought to the attention of the Medical Executive Committee (MEC) for appropriate action. 1.2(b) non-elective Preoperative Admissions
This includes all patients scheduled for non-elective surgery. If it is not possible to handle all such admissions, the Chairman of the Department of Surgical Services may decide the urgency of any specific admission.
1.2(c) Medically Necessary Admissions (non-elective, non-operative)
This will include admissions involving all services.
1.2(d) Elective Preoperative Admissions
This includes all patients scheduled for elective surgery. If it is not possible to handle all such admissions, the Chairman of the Department of Surgical Servicesurgery may decide the urgency of any specific admission.
1.2 (e) Other Elective Admissions
1.3 PATIENT TRANSFERS
1.3(a) No patients will be transferred between departments, units, or services without notification to the Attending Provider.
1.3(b) If an intensive care unit is full and a patient requires ICU care; all physicians attending patients in that ICU will be called to discuss the possibility of transferring a patient to a med/surg floor, pediatric floor, or other appropriate unit. If there is no agreement to transfer, the Medical Staff President may consult any appropriate specialist in making this determination and shall make the decision.
1.4 SUICIDAL PATIENTS
For the protection of patients, the medical and nursing staff, and the Hospital, the care of the potentially suicidal patient shall be as follows:
1.4(a) A patient suspected to be suicidal in intent shall be admitted to an appropriate room consistent with the patient's medical needs and Hospital policy. If these accommodations are not available, the patient shall be transferred, if possible, to another institution where suitable facilities are available. When transfer is not possible, the patient may be admitted to a general area of the Hospital as a temporary measure. Appropriate restraints may be used as permitted by these Rules & Regulations or Hospital policy. The patient will be afforded psychiatric consultation;
1.4(b) The Hospital social worker should be consulted for assistance; and
COPY 1.4(c) If the patient presents to the emergency room, the steps set forth in Section 1.4(a) shall be followed, except that the patient shall not be transferred absent an appropriate medical screening examination, any necessary stabilizing treatment, and a certification, pursuant to the Hospital's EMTALA policy, that the benefits of transfer outweigh the risks. 1.5 DISCHARGE OF PATIENTS The discharge policy is as follows:
1.5(a) Patients shall be discharged only on order of the Attending provider. Should a patient leave the Hospital against the advice of the Attending provider or without proper discharge, a notation of the incident shall be made in the patient's medical record by the Attending provider. The discharge process and corresponding documentation shall provide for continuing care based on the patient's assessed needs at the time of discharge
1.5(b) If any questions as to the validity of admission to or discharge from the facility should arise, the subject shall be referred to the Physician Advisor for assistance.
1.5(c) The Attending provider is required to document the need for continued hospitalization prior to expiration of the designated length of stay. This documentation must contain:
1. Adequate documentation stating the reason for continued hospitalization. A simple reconfirmation of the diagnosis will not be considered adequate;
2. Estimate of additional length of stay the patient will require; and
3. Plans for discharge and post-hospital care.
Upon request of the Utilization Management Committee or other committee responsible for case management, the Attending Physician must provide written justification of the necessity for continued hospitalization of any patient hospitalized longer than specified by the committee, including an estimate of the number of additional days of stay and the reason, therefore. This report must be submitted within a reasonable period of time. Failure to comply with this policy will be brought to the attention of the MEC for action.
1.5(d) The Attending provider shall keep the patient and the patient's family informed concerning the patient's condition throughout the patient's term of treatment. The Attending provider and Hospital staff shall ensure that the patient (or appropriate family member or legally designated representative) is provided with information that includes, but is not limited to, the following:
1. Conditions that may result in the patient's transfer to another facility or level of care;
(2) Alternatives to transfer, if any;
(3) The clinical basis for the discharge;
(4) The anticipated need for continued care following discharge;
(5) When indicated, educational information regarding how to obtain further care, treatment, and services to meet the patient's needs, which are arranged by or assisted by the hospital; and
(6) Written discharge instructions in a form and manner that the patient or family member can understand.
For all patient deaths, a death summary is required.
COPY 1.5 (e) DISCHARGE SUMMARIES A discharge summary is required for all patients hospitalized more than 48 hours. For patients hospitalized less than 48 hours, a final progress note may be substituted for the discharge summary. 1.6 DECEASED PATIENT In the event of a patient death the deceased shall be pronounced dead by the Attending provider, another member of the Medical Staff, the Emergency Department Physician, or the medical examiner, as appropriate. Such pronouncement shall be documented in the patient's medical record.
1.7 AUTOPSIES
Autopsies shall be secured by the Attending Physician as guided by Medical Staff approved criteria, and in accordance with applicable state regulations governing the performance of autopsies by the Medical Examiner. If an autopsy is indicated, the Attending provider should request permission from the family or guardian for a complete or limited autopsy. Efforts to obtain permission shall be documented in the medical record, and consents, if obtained, should be in writing signed by the family or guardian and placed in the medical record. Autopsies to be performed by the medical examiner shall be governed by applicable state law.
1.8 UNANTICIPATED OUTCOMES
In the event of an unanticipated outcome or adverse event, the patients' treating and/or consulting physician shall participate in discussion of the outcome or event with the patient, family and/or legal representative to the extent appropriate under the Hospital's Policy on Disclosure of Treatment Outcomes.
ARTICLE II - MEDICAL RECORDS
2.1 PREPARATION/COMPLETION OF MEDICAL RECORDS
Each CMC credentialed provider shall be responsible for ensuring the preparation of a complete and legible medical record for the care that they provide to each patient. Its contents shall be pertinent and current. The record shall include identification data, complaint, personal history, family history, history of present illness, physical examination, special reports, such as consultations, clinical laboratory, radiology services, other diagnostic and therapeutic orders and results thereof, provisional diagnosis, medical or surgical treatments, operative report, pathological findings, progress notes, final diagnosis, condition on discharge, discharge summary or note, clinical résumé and autopsy report, when performed. The record shall also contain a report of any emergency care provided to the patient; evidence of known advance directives; documentation of consent; and a record of any donation of organs or tissue or receipt of transplant or implants. The record shall also contain a written plan of care, treatment and services appropriate to the patient's needs, identifying the patient's needs, goals, timeframes, settings, and services required to meet the patient's needs. Such plan of care shall be discussed with the patient and shall be revised as necessary, and where appropriate, consider strategies to limit the use of restraints and/or seclusion of the patient.
All Medical and Medical Staff-Allied Health Staff members will be trained and competent prior to being granted access to the Electronic Health Record applications including CPOE.
COPY The Medical Record shall include Computerized Physician Order Entries as required by these Rules & Regulations in order to be considered complete. Admission orders will be entered electronically. Verbal orders will be recorded on the patient's chart and routed to ordering provider for signature, through the EMR. Use of the Electronic Health Record and Computerized Provider Order Entry (CPOE) will be considered part of the routine practice of medicine at Community Medical Center and as such, will be a condition of securing and maintaining privileges.
Medical and Medical Staff-Allied Health Staff will be required to comply with all the policies and procedures necessary to perform their patient care duties as they apply to the Electronic Health Record systems (e.g., order management, privacy regulations).
All practitioners must maintain the confidentially of passwords and may not disclose passwords to anyone.
2.2 ADMISSION HISTORY
Each patient admitted for inpatient care shall have a complete admission history and physical examination as required by the Medical Staff Bylaws.
2.3 SCHEDULED OPERATIONS/DIAGNOSTIC PROCEDURES
A history and physical exam must be recorded before all inpatient surgical and diagnostic procedures, and before all outpatient procedure requiring sedation. When a history and physical examination including ASA risk assessment and airway assessment, NPO status, pertinent ordered laboratory, x-ray and EKG reports, and informed consent are not recorded before a scheduled operation or any potentially hazardous diagnostic procedure, the procedure shall be canceled unless the Attending Physician documents the emergent nature of the case such that delay would be a threat to the patient's health.
2.4 PROGRESS NOTES
Pertinent progress notes shall be recorded at the time of observation, sufficient to permit continuity of care and transferability. Wherever possible, each of the patient's clinical problems should be clearly identified in the progress notes and correlated with specific orders, as well as results of tests and treatment. Progress notes shall be written or dictated at least daily on all patients except on the day of admission. The written admission note shall serve as the progress note for the day of admission unless the patient's condition warrants further progress notes on that date.
COPY 2.5 OPERATIVE/PROCEDURAL REPORTS For acute rehabilitation patients, a progress note must be written at a minimum of three times per week. Operative/procedural notes shall be written or dictated immediately following surgery and before the patient is transferred to the next level of care, and shall be immediately viewable in the electronic health record A full Operative/procedural report shall be completed within 24hours and include a preoperative diagnosis, a detailed account of the findings at surgery, name and the details of the procedure/surgical technique, primary surgeon and assistants, estimated blood loss, postoperative diagnosis and tissue or specimens removed or altered. Any practitioner failing to dictate operative/procedural notes as required herein will be brought to the attention of the Medical Staff President for appropriate action.
2.6 CONSULTATIONS
It will be the responsibility of the Attending Physician or surgeon to obtain consultation in those circumstances outlined in the consultation policy(ies) of this Hospital. Consultations shall be obtained through written order of the Attending Physician. The consultation report shall include evidence of a review of the patient's record by the consultant, pertinent findings on examination of the patient (when indicated), the consultant's opinion and recommendations. The report shall be made a part of the patient's record.
2.7 OBSTETRICAL PATIENT HISTORIES
The prenatal record for obstetrical patients, when adequately updated with progress notes setting forth the current (last 30 days) history and changes in physical findings that meet the requirements of Bylaws 3.4, shall be accepted as a valid and actual history and physical throughout the Hospital for surgery and
other procedures related to obstetrical patients.
2.8 CLINICAL ENTRIES/AUTHENTICATION
All clinical entries in the patient's medical record, including written and verbal orders, shall be accurately and promptly dated, timed, authenticated, and legible. Authentication shall be defined as the establishment of authorship by written signature, identifiable initials, or computer key. The use of a rubber stamp signature is not acceptable.
2.9 ABBREVIATIONS/SYMBOLS
MEC will approve a list of abbreviations and symbols for the "do not use" list. Abbreviations and symbols listed on the "do not use" list may not be utilized in medical records. This list shall be filed with the Health Information Management Department. Abbreviations and symbols may not be used in the final diagnostic statement or in documentation of an operative procedure.
2.10 FINAL DIAGNOSIS
COPY 2.11 REMOVAL OF MEDICAL RECORDS The final diagnosis pending the results of lab, pathology and other diagnostic procedures shall be recorded in full without the use of symbols or abbreviations. It shall also be dated and signed by the responsible practitioner at the time of discharge of all patients. Records may be removed from the Hospital's jurisdiction and safekeeping only in accordance with a court order, subpoena, or statute. All records, including imaging films, are the property of the Hospital and shall not otherwise be removed from the premises. In cases of patient readmissions, all previous records shall be available for the use of the Attending Physician. This shall apply whether the patient is attended by the same practitioner or by another. Unauthorized removal of records from the Hospital is grounds for suspension of the practitioner for a period to be determined by the MEC.
2.12 ACCESS TO MEDICAL RECORDS
Access to all patient medical records shall be afforded to members of the Medical Staff for bona fide study and research, consistent with preserving the confidentiality of personal information concerning the individual patients. All such projects shall be approved by the MEC before records can be studied. Subject to the discretion of the Medical Staff President, former members of the Medical Staff shall be permitted access to information from the medical records of their patients, covering all periods during which they attended such patients in the Hospital.
Certain types of information, including, but not limited to, psychiatric medical records, alcohol and drug abuse records and HIV records are protected by statute, and require a signed release from the patient or a court order before being released to any person.
Information should not be released to a patient's family member unless a signed consent has been obtained from the patient, guardian, or legally authorized individual.
2.13 PERMANENTLY FILED MEDICAL RECORDS
A medical record shall not be permanently filed until it is completed by the responsible practitioner(s) or is ordered filed by the MEC, the Medical Staff President or CEO with an explanation of why it was not completed by the responsible practitioner(s).
2.14 STANDING ORDERS
In order to ensure continued appropriateness, practitioner-specific standing orders shall be reviewed semi-annually by the physician and the Utilization Management Committee. Standing orders shall be dated and signed by the practitioner and reproduced in detail on the order sheet of the patient's record. Standing orders shall not replace or void those orders written for a specific patient.
2.15 COMPLETION OF MEDICAL RECORDS
The patient's medical record shall be complete at the time of discharge, including progress notes and final diagnosis. The written or dictated discharge summary shall be completed within thirty (30) days of discharge. When final laboratory or other essential reports are not received at the time of discharge, a notation shall be written or dictated that this information is pending.
2.16 DELINQUENT MEDICAL RECORDS
COPY · Discharge Summary - Within 7 days after discharge · Post-Anesthesia Evaluation - Within 48 hours after surgery or a procedure requiring anesthesia · Clinic notes within 72 hours Completion of the medical record refers to the timely completion of all aspects of the medical record, including histories and physicals (H&P), progress notes, discharge summaries, immediate post-operative notes, operative reports, and post-anesthesia evaluations. Timely completion is further defined in 3.4 but includes:
Patient medical records are required to be completed within thirty (30) days of discharge. The Health Information Management Department will monitor the completion of the medical record and will provide each physician with a list of his/her incomplete medical records and deficiencies every seven (7) days. The twenty-first (21 st ) day notification for any incomplete medical records, will include a warning that the record(s) will be delinquent at thirty (30) days and the physician's privileges will be suspended if any records become delinquent. Deficiencies will be reported to the appropriate Department chair and/or CMO, who will follow up with the provider.
2.16(a) Suspension. A chart which is not completed within thirty (30) days of discharge will trigger suspension of the responsible physician's privileges. When a provider is notified of suspension, the provider may not provide any hands-on patient care, whether inpatient or outpatient. Surgeries scheduled for that day may proceed. Any surgeries scheduled thereafter shall be postponed until all delinquent records are completed. New admissions or the scheduling of procedures are not permitted. Consultations are not permitted. The suspended provider may not cover Emergency Room call, may not provide coverage for partners or another provider, nor admit under a partner's or other provider's name. Any exceptions must be approved by the President of the Medical Staff and the CEO.
Failure to complete the medical records that caused suspension within 3 months will result in an automatic voluntary resignation of clinical privileges and membership.
2.16(b) The suspended provider is obligated to provide to the Hospital CEO and the President of the Medical Staff the name of another physician who will take over the care of his/her hospitalized patients, take his/her call, emergency room coverage, consultations, and any other services that physician provides. In the event that no provider is specified, the process as defined in 8.3 of the Bylaws will be followed.
2.16(c) All Hospital departments shall be notified of a suspension to enable the enforcement of the suspension.
2.16(d) Any physician who remains on suspension for seven (7) calendar days or longer will be referred to the MEC for further action.
A medical record shall not be permanently filed until it is completed by the responsible practitioner(s) or is ordered filed by the appropriate department chair, the CEO, or the chairperson of the Quality Management Committee, or equivalent Medical Staff committee. If notice is provided to the Health Information Department regarding vacations or absences, an extension may be granted.
2.17 TREATMENT & CARE WRITTEN ORDERS
Orders for treatment and care of patients may be written by any practitioner who has been granted privileges to do so, within the scope of their licensure.
COPY Preoperative orders must be cosigned by the appropriate physician prior to being followed unless the orders are verbal telephone orders given by the physician as prescribed in Article III, Section 3.2 of these Rules & Regulations. 2.18 ALTERATIONS/CORRECTION OF MEDICAL RECORD ENTRIES Only the original author and/or co-signing physician of a medical record entry is authorized to correct or amend an entry. Any correction must be dated and authenticated by the person making the correction. When the EMR is not available: to correct or amend an entry, the author should cross out the original entry with a single line, ensuring that it is still readable, enter the correct information, sign with legal signature and title, and enter the date and time the correction was made. Medical record entries may not be erased or otherwise obliterated, including the use of "whiteout".
Any alteration in the medical record made after the record has been completed is considered to be an addendum and should be dated, signed and identified as such.
2.19 COMPUTERIZED PHYSICIAN ORDER ENTRY
CPOEs shall be utilized by providers to the extent available and operational. Use of the Electronic Health Record and Computerized Provider Order Entry (CPOE) will be considered part of the routine practice of medicine at Community Medical Center and as such, will be a condition of securing and maintaining privileges.
Medical and Medical Staff-Allied Health Staff will be required to comply with all the policies and procedures necessary to perform their patient care duties as they apply to the Electronic Health Record systems (e.g., order management, privacy regulations).
All practitioners must maintain the confidentiality of passwords and may not disclose passwords to anyone.
ARTICLE III - GENERAL CONDUCT OF CARE
3.1 GENERAL CONSENT FORM
A general consent form, signed by or on behalf of every patient admitted to the Hospital, must be obtained at the time of presentation for admission. The patient business office should notify the Attending Physician whenever such consent has not been obtained. When so
notified it shall, except in emergency situations, be the practitioner's obligation to obtain proper consent before the patient is treated in the Hospital.
3.2 WRITTEN/VERBAL/TELEPHONE TREATMENT ORDERS
Orders for treatment shall be in writing, dated, timed, and authenticated. Verbal orders are discouraged except in emergency situations. A verbal or telephone order shall be considered to be in writing if dictated to an R.N. and signed by the R.N. and countersigned by the physician giving the order. Registered physical therapists, occupational therapists, speech therapists, lab technicians, radiology technologists, clinical dieticians, respiratory therapy technicians, pharmacists and LPNs may accept verbal orders relating to their area of practice. All verbal and telephone orders shall be signed by the qualified person to whom the order is dictated. The recipient's name, the name of the practitioner, and the date and time of the order shall be noted. The recipient shall indicate that he/she has recorded the order and shall read the verbal order back to the provider and indicate that the individual has confirmed the order. The provider who gave the verbal order or another provider (who is credentialed and granted privileges to write orders) who is also responsible for the care of the patient shall authenticate, time and date any order, including but not limited to medication orders, as soon as possible, such as during the next patient visit, and in no case longer than forty-eight (48) hours from dictating the verbal order. Failure to do so shall be brought to the attention of the MEC for appropriate action. Orders for outpatient tests require documentation of a diagnosis for which the test is necessary.
All previous orders are suspended and must be reviewed for continuation, reinstatement, or cancellation when a patient changes levels of care (including surgery).
COPY Verbal orders will generally not be accepted for investigational drug, device or procedure protocols, orders to withhold (including Do Not Resuscitate orders) or withdraw life support. Verbal orders will not be accepted for chemotherapy drug orders. Withdrawing of life support will only be implemented with an order written and authenticated by the prescribing practitioner, AND in accordance with applicable Hospital policies regarding advanced directives. 3.3 ILLEGIBLE TREATMENT ORDERS The practitioner's orders must be written clearly, legibly, and completely. Orders which are illegible or improperly written will not be carried out until rewritten or understood by the nurse. 3.4 PREVIOUS ORDERS
3.5 ADMINISTRATION OF DRUGS/MEDICATIONS
All drugs and medications administered to patients shall be those listed in the Formulary of the American Society of Hospital Pharmacists. Drugs for bona fide clinical investigations may be utilized only after approval by the committee performing the pharmacy and therapeutics function and the MEC.
The Medical Staff shall develop policies and procedures for appropriate use of patientcontrolled analgesia, spinal/epidural or intravenous administration of medications and other pain management techniques.
3.6 ORDERING/DISPENSING OF DRUGS
The physician must order drugs by name, dose, route, and frequency of administration. Drugs shall be dispensed from and reviewed by the Hospital pharmacist, or as circumstances demand (i.e., exigent patient need, or unavailability of the pharmacist) another qualified health care professional, subject to retrospective review by the Hospital pharmacist to determine: the appropriateness of the medication, dose, frequency, and route of administration; therapeutic duplication; real or potential allergies or sensitivities; real or potential interactions between the prescribed medication and other medications, food, and laboratory values; other
contraindications; and variation from Hospital dispensing criteria. When the patient brings medication to the Hospital with him/her, those medications which are clearly identified may be given to and administered by the nursing staff only if ordered by the physician and verified and identified by the Pharmacist on duty. Upon discharge all medications shall be returned to the patient. The Director of Pharmacy shall be consulted for any deviations from this rule and his/ her decision shall be binding. The physician must document in the medical record a diagnosis, condition, and indication-for-use for each medication ordered.
3.7 QUESTIONING OF CARE
If a nurse or other provider has any reason to question the care provided to any patient or believes that consultation is needed and has not been obtained, he/she shall attempt to address this directly with the provider. If a satisfactory resolution is not achieved, he/she shall call this to the attention of his/her supervisor, who in turn may refer the matter to the Chief Nursing Officer. The supervisor or Chief Nursing Officer shall contact the Attending Physician to attempt to alleviate this question. The Chief Nursing Officer may then bring this matter to the attention of the Medical Staff President. If the circumstances are such as to justify such action, the Medical Staff President may request a consultation.
3.8 PATIENT CARE ROUNDS
COPY Hospitalized patients shall be seen by the attending physician or his/her designated alternate at least daily and more frequently if their status warrants. Patients in the Inpatient Rehabilitation Facility shall be seen at least every three days, and more frequently if their status warrants, by the Attending Physician or his/her designated alternate. Patients admitted to Critical Care should be seen by the Attending Physician or his/her designated alternate as soon as possible after admission to the unit, per medical staff policy. 3.9 ATTENDING PROVIDER UNAVAILABILITY Should the Attending Provider be unavailable, his/her designee will assume responsibility for patient care. 3.10 PATIENT RESTRAINT ORDERS All Medical Staff members shall abide by federal law, Joint Commission standards, and all Hospital policies pertaining to restraints and seclusion. 3.11 PRACTITIONERS ORDERING TREATMENT
Licensure and Medicare/Medicaid eligibility will be verified for all practitioners ordering treatment (i.e., home health, cardiac rehabilitation, physical therapy, chemotherapy), regardless of the practitioner's Medical Staff status or lack thereof. Orders for outpatient services may only be made by practitioners who are (1) responsible for the care of the patient; (2) licensed in, or holds a license recognized in, the jurisdiction where he/she provides care to the patient; (3) acting within his/her scope of practice under State law; and (4) authorized by the Medical Staff to order the applicable outpatient services under a written Hospital policy that is approved by the Board. This includes both practitioners who are on the Hospital Medical Staff, as well as other practitioners who are not on the Hospital Medical Staff, but who satisfy the Hospital's policies for ordering applicable outpatient services.
3.12 TREATMENT OF FAMILY MEMBERS OR SELF-TREATMENT
Treatment by practitioners of immediate family members or self-treatment should be reserved only for minor illnesses or emergency situations. Practitioners may not self-prescribe or prescribe to immediate family members any controlled substances. Written records must be maintained of any written prescriptions or administration of any drugs. A practitioner may not perform surgery on an immediate family member except in an emergency situation where no viable alternative is available
ARTICLE IV - GENERAL RULES REGARDING SURGICAL CARE
4.1 RECORDING OF DIAGNOSIS/TESTS
Excluding emergencies, prior to any invasive procedure, a history, physical and other appropriate information including the preoperative diagnosis and appropriate laboratory tests must be recorded on the patient's medical record. If not recorded, the procedure shall be canceled. In all emergencies, the practitioner shall make a comprehensive note regarding the patient's condition prior to induction of anesthesia and the start of surgery.
4.2 ADMISSION OF DENTAL CARE PATIENT
A patient admitted for dental care is a dual responsibility involving the dentist and a physician member of the Medical Staff.
4.2(a) Dentist's Responsibilities
The responsibilities of the dentist are:
1. To provide a detailed dental history justifying Hospital admission;
2. To provide a detailed description of the examination of the oral cavity and preoperative diagnosis;
(3) To complete an operative report describing the finding and technique. In case of extraction of teeth, the dentist shall clearly state the number of teeth and fragments removed. All tissue, excluding teeth and foreign objects, shall be sent to the Hospital pathologist for examination;
COPY 1. To provide medical history pertinent to the patient's general health, which shall be on the patient's chart, prior to induction of anesthesia and start of surgery; 2. To perform a physical examination to determine the patient's condition, which shall be on the patient's chart prior to anesthesia and surgery; and (4) To provide progress notes as are pertinent to the oral condition; and (5) To provide a clinical summary. 4.2(b) Physician's Responsibilities The responsibilities of the physician are:
(3) To supervise the patient's general health status while hospitalized. and be responsible, through consultation, for the care of any other medical problems that may be present on admission or that may arise during hospitalization
4.2(c) The discharge of the patient shall be the dual responsibility of the dentist member of the Medical Staff and the Attending Physician.
4.3 ADMISSION OF PODIATRIC PATIENTS
A patient admitted for podiatric care is the dual responsibility of the podiatrist who is a staff member and the physician member of the Medical Staff designated by the podiatrist.
4.3(a) Podiatrist's Responsibilities
The responsibilities of the podiatrist are:
1. To provide a detailed podiatric history justifying hospital admission;
2. To provide a detailed description of the podiatric findings and a preoperative diagnosis;
3. To complete an operative report describing the findings and technique. Any tissue shall be sent to the Hospital pathologist for examination;
4. To provide progress notes as are pertinent to the podiatric condition; and
5. To provide a clinical summary.
4.3(b) Physician's Responsibilities
The responsibilities of the physician are:
1. To provide medical history pertinent to the patient's general health, which shall be on the patient's chart prior to induction of anesthesia and start of surgery;
2. To perform a physical examination to determine the patient's condition, which shall be on the patient's chart prior to anesthesia and surgery; and
3. To supervise the patient's general health status while hospitalized and be responsible, through consultation, for the care of any other medical problems that may be present on admission or that may arise during hospitalization.
4.3(c) A discharge for the patient shall be the dual responsibility of the Attending Podiatrist and Physician
COPY 4.4 INFORMED CONSENT A written, informed and signed surgical consent shall be obtained and placed on the patient's chart prior to all operative procedures, invasive diagnostic procedures, and other high-risk treatments (as provided by Hospital policy and/or state law) except in those situations wherein the patient's life is in jeopardy and suitable signatures cannot be obtained due to the condition of the patient. The consent form shall be signed by the patient, or any person to whom the patient has properly delegated representative authority, only after the risks and benefits of the procedure, alternative treatment methods, current health status of the patient, plan of care, and other information necessary to make a fully informed consent has been explained to the patient by the responsible physician. After informed consent has been obtained by the surgeon, the physician shall obtain the patient's signature on the consent form and shall witness the signature. In those emergencies involving a minor or unconscious patient in which consent for surgery cannot be immediately obtained from parents, guardian or next of kin, the circumstances should be fully explained on the patient's medical record. If it is known in advance that two (2) or more specific procedures are to be carried out at the same time, said procedures may be described and consented to on the same form.
Each consent form shall include the name of the Hospital where the procedure is to take place; the name of the specific procedure for which consent is being given; the name of the responsible practitioner who is performing the procedure; a statement that the procedure, including the anticipated benefits, material risks, and alternative therapies, was explained to the patient or the patient's legal representative; and the signature of the patient or the patient's legal representative. The form must also comply with the requirements of applicable state law.
4.5 PATIENT REQUESTS & REFUSAL OF TREATMENT
All refusals of consent to treatment by the patient, or one legally authorized to consent to treatment on
the patient's behalf, must be documented in the patient's permanent Hospital record.
Patients have the right to request any treatment at any time, and such requests shall be documented in the patient's permanent chart. However, such requests may be declined if determined to be medically unnecessary by the treating physician or his/her designee.
4.6 EXAMINATION OF SPECIMENS
Specimens, excluding teeth and foreign objects removed during a surgical procedure, shall be evaluated by a pathologist. Each specimen must be accompanied by pertinent clinical information. Categories of specimens requiring only a gross description and diagnosis shall be determined by the pathologist and the Medical Staff and documented in writing.
4.7 ELECTIVE SURGERY SCHEDULING
In order to reduce patient anxiety resulting from a long wait, reduce staff overtime for elective work and allow time for possible emergencies, the relevant approved medical staff policy will be used for scheduling elective surgeries. Emergency procedures shall take priority above all other cases.
4.8 POST-OPERATIVE EXAMINATION
4.9(a) Anesthesia services throughout the Hospital shall be organized into one anesthesia service under the direction of a qualified physician. The director of anesthesia services shall, in accordance with state law and acceptable standards of practice, be a physician who by experience, training, and/or education is qualified to plan, direct, supervise, and evaluate the activities of the anesthesia service. The director of anesthesia services will be an anesthesiologist member of the Medical Staff. Responsibility for the management of anesthesia services for an individual patient lies with the physician or licensed independent practitioner who provided the anesthesia services.
COPY For all outpatient surgery patients discharged from recovery room to home, a post-operative examination will be conducted by the surgeon 4.9 ANESTHESIA Anesthesia services include a range of services, including topical or local anesthesia, minimal sedation, moderate sedation, monitored anesthesia care (MAC) including deep sedation, regional anesthesia, and general anesthesia. For purposes of this Section, these services are defined in the same manner as in the Centers for Medicare and Medicaid Services Revised Hospital Anesthesia Services Interpretive Guidelines.
4.9(b) The Hospital shall maintain policies and procedures governing anesthesia services provided in all Hospital locations. Such policies and procedures shall indicate the necessary qualifications that each clinical practitioner must possess in order to administer anesthesia as well as moderate or deep sedation or other forms of analgesia. In addition, such policies and procedures shall, on the basis of nationally recognized guidelines, provide guidance as to whether specific clinical applications involve anesthesia as opposed to analgesia.
4.9(c) Only credentialed and qualified individuals as defined in the policies and procedures of the Hospital may provide anesthesia services. The Department of Surgery shall approve credentialing
guidelines consistent with federal regulations and Joint Commission standards for individuals providing anesthesia services. Specific privileges to provide anesthesia services shall be granted in accordance with the procedures of the Medical Staff Bylaws and must be approved by the Board of Trustees.
4.9(d) The anesthesiologist shall maintain a complete anesthesia services record, the required contents of which shall be set forth in the appropriate policies and procedures of the Hospital and shall be consistent with the requirements of applicable state law, the Joint Commission, and the CMS Hospital Conditions of Participation. For each patient who receives general anesthesia, regional anesthesia, or monitored anesthesia care (MAC), this record shall include a pre-anesthesia evaluation, an intraoperative record, and a post anesthesia evaluation.
Where required, a pre-anesthesia evaluation must be performed by an individual credentialed and qualified to provide anesthesia as defined in the policies and procedures of the Hospital. The preanesthesia evaluation must be completed and documented within forty-eight (48) hours immediately prior to any inpatient or outpatient surgery or procedure requiring anesthesia services. In addition, the anesthetist or anesthesiologist will reevaluate and document the patient's condition immediately before administering moderate or deep sedation or anesthesia, as such terms are defined by The Joint Commission.
4.10 POST-ANESTHESIA EVALUATION
COPY The individual who administered the patient's anesthesia, or another individual credentialed and qualified to provide anesthesia as defined in the policies and procedures of the Hospital, must also perform a post anesthesia evaluation of the patient, and document the results of the evaluation no later than forty-eight (48) hours after the patient's surgery or procedure requiring anesthesia services. Individual patient risk factors may dictate that the evaluation be completed and documented sooner than forty-eight (48) hours, as addressed in Hospital policies and procedures. For those patients who are unable to participate in the post anesthesia evaluation, a post anesthesia evaluation should be completed and documented within forty-eight (48) hours with notation that the patient was unable to participate, description of the reason(s) therefore, and expectations for recovery time, if applicable
A post-anesthesia evaluation must be completed and documented no later than 48 hours after surgery or a procedure requiring anesthesia services. This evaluation is required any time general, regional, or monitored anesthesia has been administered to the patient. This evaluation is not required for those patients receiving moderate sedation. This post-anesthesia evaluation must be completed and documented by an Anesthesiologist; however, this does not need to be the same Anesthesiologist who administered the anesthesia to the patient. This post-anesthesia evaluation will contain the following:
* Respiratory function
* Cardiovascular function, including vital signs
* Mental status
* Temperature
* Pain
* Nausea and vomiting
* Postoperative hydration
* Any necessary types of monitoring which would be dependent on the surgery performed
4.9(e) The anesthetist or anesthesiologist will be responsible to obtain and document informed consent for anesthesia in the medical record. In order to ascertain the patient's
wishes as they relate to the continuance of advanced directives, said advanced directives and
DNR orders will be discussed with the patient by the anesthetist or anesthesiologist or the attending physician prior to surgery. If the patient's wishes have changed, documentation
signed by the patient and the surgeon or other physician participating in the discussion must be obtained and witnessed as required by state law applicable to advance directives.
4.9(f) The Hospital must be able to provide anesthesia services within thirty (30) minutes after the determination that such services are necessary. Thus, the response time for arrival of the qualified anesthesia provider must not exceed twenty (20) minutes.
4.11 ORGAN & TISSUE DONATIONS
The Hospital shall refer all inpatient deaths, emergency room deaths and dead on arrival cases (term birth to age 75) to the designated organ procurement agency and/or tissue and eye donor agency in order to determine donor suitability and shall comply with all CMS conditions of participation for organ, tissue, and eye procurement.
No physician attending the patient prior to death or involved in the declaration of death shall participate in organ removal.
COPY The attending physician shall notify the family of each potential organ donor of the potential to donate, or decline to donate, organs, tissues, or eyes. The patient's medical record shall reflect the results of this notification. ARTICLE V - GENERAL RULES REGARDING OBSTETRICAL CARE 5.1 CARE OF HIGH RISK NEWBORNS Subject to other state or accreditation requirements, only by those physicians or APPs who have training in neonatal resuscitation and NICU care, with a current Neonatal Resuscitation Program certification from the American Academy of Pediatrics will provide care for newborns at high risk for complications or neonates in the NICU 5.2 LABOR & DELIVERY
Physicians providing care for newborns delivered via cesarean section or other high risk newborns are required to arrive at the Emergency Department or Labor and Delivery Unit, as applicable, within thirty (30) minutes of initial contact regarding a cesarean delivery or other emergency condition which requires specialized pediatric or neonatal care.
5.3 EMERGENCY MEDICAL SCREENING OF WOMEN IN LABOR
When a pregnant female presents unscheduled to the Hospital requesting medical evaluation, regardless of the location to which the female presents, this presentation is considered a presentation for medical screening evaluation (MSE) pursuant to the facility's EMTALA policy. An MSE is required to be conducted face-to-face by a licensed independent provider. In late pregnancy, defined as gestation greater than sixteen weeks (16), the initial triage nurse will consider best location for the MSE to occur. Pregnancy related complaints in late pregnancy may be evaluated in the Hospital's Labor and Delivery Unit, considered an extension of the emergency department for purposes of compliance with EMTALA. The decision regarding best location for the MSE is based upon the patient's gestational age and presenting condition. For those patients who are referred to the Labor and Delivery Unit for MSE, an RN trained in obstetrics, as defined by Hospital policy, will initiate the order of the obstetric provider to determine the onset of labor or obstetrical conditions that may require immediate medical intervention. For the patient who is determined not to be in active labor, a face-to-face medical screening exam by qualified medical personnel is required to determine the diagnosis and the
disposition
5.4 PATIENTS PRESENTING TO LABOR & DELIVERY UNIT
Any patient admitted directly to the Labor and Delivery Unit for onset of labor by order of her treating physician or otherwise shall undergo the screening described in Section 5.2, above. The nurse shall contact the admitting physician upon any change in the patient's condition or deviation from the standard course of labor progression. The physician shall be required to come to the Hospital within twenty (20) minutes upon being contacted by the nurse and requested to come to the Hospital due to a change in condition or deviation from the standard course of progress. A patient admitted to the Labor and Delivery Unit should be seen by the Attending Physician at any time that her condition warrants, and per approved medical staff policy.
ARTICLE VI - EMERGENCY MEDICAL SCREENING, TREATMENT, TRANSFER
& ON-CALL ROSTER POLICY
6.1 SCREENING, TREATMENT & TRANSFER
6.1(a)Screening
COPY 1. Any individual who presents to the Emergency Department of this Hospital for care shall be provided with a medical screening examination to determine whether that individual is experiencing an emergency medical condition. Generally, an "emergency medical condition" is defined as active labor or as a condition manifesting such symptoms that the absence of immediate medical attention is likely to cause serious dysfunction or impairment to bodily organ or function, or serious jeopardy to the health of the individual or unborn child. 2. Examination and treatment of emergency medical conditions shall not be delayed in order to inquire about the individual's method of payment or insurance status, nor denied on account of the patient's inability to pay. 3. All patients shall be examined by qualified medical personnel, which shall be defined as a physician, or in the case of a woman in labor, a registered nurse trained in obstetric nursing, where permitted under state law and Hospital policy, who may determine true, false or no labor but may not make a medical diagnosis.
4. Services available to Emergency Department patients shall include all ancillary services routinely available to the Emergency Department, even if not directly located in the department.
6.1(b)Stabilization
1. Any individual experiencing an emergency medical condition must be stabilized prior to transfer or discharge, excepting conditions set forth below.
a. A patient is Stable for Discharge, when within reasonable clinical confidence, it is determined that the patient has reached the point where his/her continued care, including diagnostic workup and/or treatment, could reasonably be performed as an outpatient, provided the patient is given a plan for appropriate follow-up care with the discharge instructions; or, the patient requires no further treatment and the treating physician has provided written documentation of his/her findings.
b. A patient Stable for Transfer if the treating physician has determined, within reasonable clinical confidence, that the patient is expected to leave the Hospital and be received at a second facility, with no material deterioration in his/her medical condition; and the treating physician
reasonably believes the receiving facility has the capability to manage the patient's medical condition and any reasonably foreseeable complication of that condition. The patient is considered to be Stable for Transfer when he/she is protected and prevented from injuring himself/herself or others.
c. A patient does not have to be stabilized when:
i. the patient, after being informed of the risks of transfer and of the Hospital's treatment obligations, requests the transfer and signs a transfer request form; or
ii. based on the information available at the time of transfer, the medical benefits to be received at another facility outweigh the risks of transfer to the patient, and a physician signs a certification which includes a summary of risks and benefits to this effect.
(2)If a patient refuses to accept the proposed stabilizing treatment, the Emergency Department Physician, after informing the patient of the risks and benefits of the proposed treatment and the risks and benefits of the individual's refusal of the proposed treatment, shall take all reasonable steps to have the individual sign a form indicating that he/she has refused the treatment. The Emergency Department Physician shall document the patient's refusal in the patient's chart, which refusal shall be witnessed by the Emergency Department supervisor. If the patient so desires, the patient will be offered assistance in finding a physician for outpatient follow-up care.
(3)Upon transfer, the Emergency Department shall provide a copy of appropriate medical records regarding its treatment of the individual including, but not limited to, observations of signs or symptoms, preliminary diagnosis, treatment provided, results of any test, informed written consent or transfer certification, and the name and address of any on-call physician who has refused or failed to appear within a reasonable period of time in order to provide stabilizing treatment.
COPY 6.1(c)Transfer (1)The Emergency Department Physician shall obtain the consent of the receiving hospital facility before the transfer of an individual. Said person shall also make arrangements for the patient transfer with the receiving hospital. (2)The condition of each transferred individual shall be documented in the medical records by the physician responsible for providing the medical screening examination and stabilizing treatment.
(4)All reasonable steps shall be taken to secure the written consent or refusal of the patient (or the patient's representative) with respect to the transfer. The Emergency Department Physician must inform the patient (or the patient's representative) of the risks and benefits of the proposed transfer.
6.2 CONSULTATIONS, REFERRALS & EMERGENCY DEPARTMENT CALL
6.2(a)When the Emergency Department Physician determines that a consultation or specialized treatment beyond the capability of the Emergency Department Physician is needed, the patient shall be permitted to request the services of a specific private physician. This request will be documented in the patient's medical record
6.2(b)The physician whom the patient requests shall be contacted by a person designated by the physician in charge of the Emergency Department and that person will document the time of the contact in the patient's medical record.
6.2(c)An appropriate attempt to contact the physician will be considered to have been made when the Emergency Department Physician or Emergency Department designee has:
1. Attempted to reach the physician in the Hospital;
2. Called the physician at home;
3. Called the physician at his/her office; and
4. Called once on the physician's pager or cell phone.
Twenty minutes (20) will be considered a reasonable time to carry out this procedure.
6.2(d)The rotation call list, containing the names and phone numbers of the on-call physicians shall be posted in the Emergency Department. In the event that the patient does not have a private physician, the private physician refuses the patient's request to come to the Emergency Department, or the physician cannot be contacted within twenty (20) minutes of the initial request, the rotation call list shall be used to select a private physician to provide the necessary consultation or treatment for the patient.
COPY A physician who has been called from the rotation list may not refuse to respond. The Emergency Department physician's determination shall control whether the on-call physician is required to come in to personally assess the patient. Any such refusal shall be reported to the CEO and Medical Staf President for further action and may constitute grounds for revocation of the physician's Medical Staff appointment and clinical privileges. Patients reporting to the Emergency Department for treatment and who do not identify a personal physician will, when appropriate, have the appropriate Unassigned Patient Call physician assigned for their outpatient follow-up.
Unassigned Patient Call Violations:
If a physician neglects to respond to Unassigned Patient Call as published, in final version, the Community Medical Center House Supervisor will be notified by the staff. The House Supervisor will document on the Medical Staff Episode Form* and forward to Medical Staff Services. The House Supervisor will then notify the Medical Center President and/or Administrator on call, as well as the Chief Medical Officer. After review, the Medical Executive Committee will take appropriate actions.
*The Episode Form will be maintained as part of the physician's peer review records and process.
6.2(e)The physician called from the rotation schedule shall be held responsible for the care of a patient until the problem prompting the patient's assignment to that physician is satisfactorily resolved or stabilized to permit disposition of the patient. This responsibility may include follow-up care of the referred patient in the physician's office. If, after examining the patient, the physician who is consulted or is called from the rotation schedule feels that a consultation with another specialist is indicated, it will be that physician's responsibility to make the second referral. The first physician consulted retains responsibility for the patient until the second consultant accepts the patient.
6.2(f)All members of the Active Staff shall participate in the on-call backup to the Emergency Department if and as required by the Board, upon recommendation of the MEC. Participation in the oncall backup to the Emergency Department is not a right. The MEC and the Board shall retain ultimate authority for making determinations regarding call requirements based upon the needs of the Hospital and its patients, and upon the Hospital's obligation to ensure that the services regularly available to its Hospital patients are available to the Emergency Department. In the event any physician or specialty represented on the Active Staff is excused from call, the MEC and the Board shall document the reasons, and shall ensure that such decision does not negatively impact upon the Hospital's ability to fulfill its obligations as outlined above.
Physicians called are required to respond to Emergency Department call by telephone within ten (10) minutes. If requested to come in, they are required to do so within twenty (20) minutes after responding by telephone.
6.2(g)The system for providing on-call coverage shall be approved by the Board of Trustees and documented by written policy.
ARTICLE VII - ADOPTION & AMENDMENT OF RULES & REGULATIONS
These rules and regulations shall be considered a part of the bylaws, except that they may be amended or replaced at any regular General Medical Staff meeting at which a quorum present and without previous notice, or at any special meeting on notice, by a majority vote of those present and eligible to vote. These actions require the approval of a majority of the Board. If the Medical Staff fails to act within a reasonable time after notice from the Board to such effect, the Board may initiate revisions to the Medical Staff Rules & Regulations, taking into account the recommendations of Medical Staff members. The Rules & Regulations shall be reviewed and revised as needed, but at least every two (2) years.
COPY 7.1 DEVELOPMENT The Medical Staff shall have the initial responsibility to bring before the Board formulated, adopted and recommended Medical Staff Rules & Regulations and amendments thereto which shall be effective when approved by the Board. The Medical Staff shall exercise its responsibility in a reasonable, timely and responsible manner, reflecting the interest or providing patient care of recognized quality and efficiency and of maintaining a harmony of purpose and effort with the CEO, the Board and the community. 7.2 ADOPTION, AMENDMENT & REVIEWS
7.3 DOCUMENTATION & DISTRIBUTION OF AMENDMENTS
Amendments to these Rules & Regulations as set forth herein shall be documented by either:
7.3(a) Appending to these Rules & Regulations the approved amendment, which shall be dated and signed by the Medical Staff President, the CEO, the Chairperson of the Board of Trustees and approved as to form by Corporate Legal Counsel; or
7.3(b) Restating these Rules & Regulations, incorporating the approved amendments and all prior approved amendments which have been appended to these Rules & Regulations since their last
restatement, which restated Rules & Regulations shall be dated and signed by the Medical Staff President, the CEO, the Chairperson of the Board of Trustees and approved as to form by Corporate Legal Counsel.
Each member of the Medical Staff shall be given a copy of any amendments to these Rules & Regulations in a timely manner.
7.4 SUSPENSION, SUPPLEMENTATION, OR REPLACEMENT
The Board reserves the right to suspend, override, supplement, or replace all or a portion of the Rules and Regulations in the event of exigent and compelling circumstances affecting the operation of the Hospital, welfare of its employees and staff, or provision of optimal care to patients. However, should the Board so suspend, override, supplement or replace such rules and regulations, it shall consult with the Medical Staff at the next regular staff meeting (or at a special called meeting as provided in the bylaws), and shall thereafter proceed as provided in Section 8.2 for adoption and amendment of Rules & Regulations. If an agreement cannot be reached, the Board shall have the ultimate authority as to adoption and amendment of the Rules & Regulations but shall exercise such authority unilaterally only when the Medical Staff has failed to fulfill its obligations and it is necessary to ensure compliance with applicable law or regulation, or to protect the well-being of patients, employees or staff.
COPY APPENDIX "C" – POLICY REGARDING BEHAVIOR THAT UNDERMINES A CULTURE OF SAFETY 1.1 PURPOSE & OBJECTIVE It is the policy of the Hospital for all individuals working in the Hospital to treat others with respect, courtesy, and dignity, and to conduct ourselves in a professional, cooperative manner, and in compliance with the Code of Conduct of LifePoint Hospitals. This policy sets forth the requirement that all physicians and APPs who work in the Hospital will act in a professional and respectful manner at all times. Further, this policy defines behavior or behaviors that undermine a culture of safety and outlines how to report and address it.
The objectives of this policy are to ensure quality patient care by promoting a safe, cooperative, and professional health care environment, and to provide Hospital employees with a work environment based on respect and one that encourages personal and professional growth.
This policy is applicable to all medical staff members and all APPs (collectively referred to in this policy as "Practitioners").
Conduct of a criminal nature by a Practitioner, including but not limited to assault, battery, rape, or theft shall be handled through local law enforcement officials in accordance with local and State laws, in addition to application of this policy to address Practitioner's medical staff or allied health membership.
Any employee who engages in behavior or behaviors that undermine a culture of safety, including employed Practitioners, may be dealt with in accordance with the Hospital's human resource policies. Practitioners or Hospital employees who observe undermining behavior on the part of a Hospital employee shall follow the reporting mechanisms set forth in the human resource policies
2.1 BEHAVIOR THAT UNDERMINES A CULTURE OF SAFETY
For purposes of this policy, behavior that undermines the culture of safety (herein referred to as "Undermining Behavior") is any behavior that substantially intimidates others; affects morale or staff turnover; disrupts the smooth operation of the Hospital; adversely affects the ability of others to perform their jobs appropriately; poses a threat or potential threat to safe quality patient care; or exposes the Hospital or Medical Staff to potential liability. Behavior that does not substantially impact a culture of safety is behavior that is outside the scope of this policy. Behavior which may rise to the level of Undermining Behavior may include, but is not limited to, behavior such as
2.1(a) Rude, abusive, or intimidating behavior or comments to Hospital personnel, other Practitioners, Hospital visitors, patients or their families, or other behavior that negatively affects the ability of others to do their jobs. Such behavior can include the failure to cooperate, the refusal to return calls, or other passive activities when such substantially impacts the culture of safety
2.1(b) Attacks, verbal or physical, directed at other Practitioners, Hospital personnel, patients, or visitors, that are personal, inappropriate, irrelevant, or beyond the bounds of fair professional conduct
COPY 2.1(c) Impertinent and inappropriate comments (or illustrations) made in patient medical records or other official documents, or inappropriate written or verbal statements to patients and/or members of the community impugning the quality of care in the Hospital, or attacking particular Practitioners, nurses, other Hospital employees, or Hospital policies 2.1(d) Non-constructive criticism that is addressed to its recipient in such a way as to intimidate, undermine confidence, belittle, or imply stupidity or incompetence. 2.1(e) Refusal to accept, or causing a disturbance of, medical staff assignments or participation in committee or departmental affairs. 2.1(f) Interference with Hospital operations, Hospital or Medical Staff committees, or departmental affairs, or placing quality care at the Hospital in jeopardy.
2.1(g) Knowingly making false accusations or falsifying any patient medical records or Hospital documents
2.1(h) Verbal or physical maltreatment of another individual, including physical or sexual assault or battery, or retaliation of any kind for making a report under this policy.
2.1(i) Sexual, racial, or other harassment, including words, gestures and actions, verbal or physical, that interferes with a person's ability to perform his or her job
2.1(j) Behavior that adversely affects or impacts the community's confidence in the Hospital's ability to provide quality patient care
3.1 REPORTING OF UNDERMINING BEHAVIOR
3.1(a) Hospital employees who observe, or are subjected to, Undermining Behavior by a Practitioner should notify their supervisor about the incident. If the supervisor's behavior is at issue, the employee should notify the Chief Executive Officer (or his/her designee) or the Hospital Human Resources Director. Any Practitioner who observes Undermining Behavior of another Practitioner shall notify the Chief Executive Officer or President of the Medical Staff directly. Supervisors who have received a report of
Undermining Behavior shall report the same to the Chief Executive Officer (or his/her designee) and encourage documentation by the reporting individual.
3.1(b) If a reporting individual is uncomfortable with reporting Undermining Behavior directly, then a report of the incident must be made to the Hospital's Ethics & Compliance Officer or the LifePoint Ethics Line at 1-877-508-LIFE (5433).
4.1 DOCUMENTATION
4.1(a) Documentation of Undermining Behavior is critical since it is ordinarily a pattern of conduct, rather than one (1) incident, which justifies disciplinary action. Practitioners, nurses, and other Hospital employees who observe and report Undermining Behavior by a Practitioner must document the behavior or in the alternative, the supervisor/Chief Executive Officer shall document the incident as reported. That documentation shall include:
(1) The date and time of the questionable behavior;
(2) A statement of whether the behavior affected or involved a patient in any way; and if so, the medical record number of the patient;
4.1(b) The report shall be submitted to the President of the Medical Staff, who shall provide the report to the Chief Executive Officer. In performing all functions hereunder, the Chief Executive Officer and President of the Medical Staff, and their designees, shall be deemed authorized agents of the Medical Executive Committee and shall enjoy all immunity and confidentiality protection afforded under state and federal law.
COPY (3) Known circumstances which precipitated the situation; (4) A description of the questionable behavior limited to factual, objective language; (5) Known consequences, if any, of the Undermining Behavior as it relates to patient care or Hospital operations; (6) The names of other witnesses to the incident; and (7) A record of any action taken to remedy the situation including date, time, place, action, and name(s) of those intervening.
4.1(c) After a report of Undermining Behavior, the Chief Executive Officer or his or her designee shall insure those making the report are aware of the Hospital's standards of behavior and process for assuring professional and appropriate behavior in the Hospital. Individuals that reported the potentially undermining behavior will be advised of policies preventing retaliation and will be requested to report any perceived acts of retaliation to the CEO or his or her designee. This follow-up discussion with individuals that made a report will occur as soon as practical after each report of Undermining Behavior.
5.1 INVESTIGATION
Once received, a report will be investigated by the Chief Executive Officer and/or the President of the Medical Staff. The Chief Executive Officer or Medical Staff President may delegate this investigation to the Hospital's Human Resources Director, Chief Nursing Officer, Department Chair or Assistance
Committee, Or other individual who may have applicable expertise or skill. This investigation may include meeting with the individual who reported the behavior and any other witnesses to the incident. If the Chief Executive Officer and Medical Staff President determine after investigation that the report lacks merit, this conclusion shall be documented, and no further action is necessary. Those reports considered accurate will be addressed through the procedure set out below. This documentation shall be placed in the Practitioner's confidential peer review file.
If at any time it appears to the Medical Staff President, the Chief Executive Officer, or any committee charged with implementation of this policy that a physician's behavior may result from impairment, the procedure set forth in the Practitioner Wellness Policy shall be followed
6.1 MEETING WITH THE PRACTITIONER
6.1(a) A first confirmed incident requires a discussion with the offending Practitioner. The Medical Staff President and Chief Executive Officer, or designee, shall initiate a meeting with the Practitioner and emphasize that such behavior is inappropriate and violates Hospital policy and the Medical Staff bylaws.
COPY 6.1(b) These individuals shall discuss the matter informally with the Practitioner, emphasizing that if the behavior continues, more formal action will be taken to stop it. The identity of the individual who made the report of Undermining Behavior shall not be disclosed at this time, unless the Chief Executive Officer and Medical Staff President, after consulting with legal counsel, agree in advance that legal requirements or unusual circumstances make it appropriate to do so. The following guidelines shall be followed regarding the meeting: (1) The initial approach should be collegial and designed to be helpful to the physician; (2) The parties should emphasize that if the behavior continues, more formal action will be taken to stop it (3) Informal meetings shall be documented with a written summary of the meeting. This documentation shall be maintained in a confidential peer review file of the Practitioner;
(4) A follow-up letter to the physician (summary of the meeting) shall state that the physician is required to behave professionally and cooperatively, along with a copy of this Hospital policy on Undermining Behavior; and
(5) Nothing herein shall be deemed to prohibit more formal corrective action as a result of a single incident should the Medical Staff President and/or the Chief Executive Officer determine that the seriousness of the incident justifies such action
6.1(c) If an additional incident of Undermining Behavior occurs, or if the Medical Staff President or the Chief Executive Officer determines it to be necessary, the Chief Executive Officer and the Medical Staff President or designee, shall meet with and advise the physician that such behavior is intolerable and must stop. This meeting constitutes the physician's final warning. It shall be followed with a letter reiterating the warning and summarizing the meeting. The Practitioner may prepare a written response to the letter. This documentation shall be maintained in the Practitioner's confidential peer review file. More formal corrective action may be pursued at this juncture if deemed warranted by the Medical Staff President and/or Chief Executive Officer.
6.1(d) Every meeting with the Practitioner shall include a review of the Hospital's policy against retaliation. Such discussions shall be explicitly documented.
6.1(e) All meetings with the Practitioner shall be documented.
6.1(f) After each meeting with the Practitioner, a letter shall be sent to the Practitioner confirming the Hospital's and medical staff leadership's position - that the Practitioner is required to behave professionally and cooperatively, and which also shall include the potential consequences of continued non-compliance or retaliation against individuals the Practitioner believes to have reported the behavior in question
7.1 DISCIPLINARY ACTION PURSUANT TO BYLAWS
7.1(a) A single additional incident of behavior that undermines a culture of safety, after the above process has been completed, shall result in initiation of formal disciplinary action pursuant to the medical staff bylaws. The Chief Executive Officer and Medical Staff President shall be responsible for presenting the history of behavior to the Medical Executive Committee.
7.1(b) Summary suspension may be appropriate pending this process, depending upon the seriousness of the offense, and after consultation with operations counsel.
7.1(e) Although the above outline is a suggested method of progressive counseling and discipline, nothing herein shall be deemed to require such progressive discipline in the event that the seriousness of the individual's behavior warrants immediate corrective action. A single egregious incident, including but not limited to physical or sexual harassment, a felony conviction, assault, a fraudulent act, stealing, damaging Hospital property, or jeopardizing patient care may result in immediate corrective action. As such, if they deem it appropriate based upon the circumstances, the Hospital's Chief Executive Officer, Medical Staff President or Board Chairperson may initiate formal disciplinary action under the Bylaws for a single incident of Undermining Behavior without first resorting to the progressive disciplinary approach set forth herein.
COPY 7.1(c) The Medical Executive Committee must be fully advised of all of the previous meetings and warnings, if any, and must take them into account, so that it may pursue whatever action is necessary to cease the Undermining Behavior. 7.1(d) The Medical Executive Committee must take action or refer the matter to the Board with a recommendation as to action. This recommendation shall be processed as provided in the administrative corrective action section of the Medical Staff Bylaws. The Board will review and may initiate action if the Medical Executive Committee fails to take action, refer the matter, or make a recommendation as to action regarding the matter.
7.1(f) The Hospital's Human Resource Director may be formally included as an ex-officio member of the applicable committee without vote. If the Human Resource Director is so included, the minutes of the applicable committee shall so indicate. To the extent possible, the Hospital's Human Resource Director should be advised of the action taken against a Practitioner resulting from a report of Undermining Behavior by a Hospital employee.
APPENDIX "D" –PROVIDER WELLNESS POLICY
It is the policy of this Hospital to properly review and act upon concerns that a provider, as defined in the Medical Staff Bylaws, is suffering from an illness or impairment. The Hospital will conduct its review and act in accordance with pertinent state and federal law, including, but not limited to, the Americans with Disabilities Act. For purposes of this policy, impaired shall mean inability to practice with reasonable skill and safety without jeopardy to patient care due to acute and ongoing physical, psychiatric, and emotional illness or injury, as well as health issues due to alcohol and drugs.
As part of the Hospital's commitment to the safe and effective delivery of care to patients, the Hospital and Medical Staff shall conduct education sessions concerning provider health and impairment issues, including illness and impairment recognition issues specific to providers ("at-risk" criteria).
Impaired Providers shall be referred to the Assistance Committee for confidential assistance. Providers may self-refer or be referred by Medical/Allied Health members or Medical Center employees.
Assistance Committee Duties:
The Committee shall develop individual plans for monitoring Medical/ APP Staff members with impairment to maximize patient protections while assisting the member.
1.1(a)An oral or, preferably, a written report shall be given to the Chief Executive Officer or the Medical Staff President. The reporting individual shall otherwise keep the report and the facts related thereto confidential. The report shall include a description of the incident(s) that led to the belief that the provider may be impaired. The report must be factual. The individual making the report need not have proof of the impairment but must state the facts leading to the suspicions. A provider who feels that he/ she may be suffering from impairment may also make a confidential self-report.
COPY Such activities shall be confidential and privileged. However, in the event information received by the committee clearly demonstrates that the health or known impairment of a Medical/ APP Staff member poses an unreasonable risk of harm to hospitalized patients or others, that information may be referred for corrective action, both internally and through a professional assistance program provided by the state of Montana. 1.1Report & Review If any individual in the Hospital has a reasonable suspicion that a provider appointed to the Medical or APP Staff and/or with clinical privileges is impaired, the following steps shall be taken:
1.1(b)Notwithstanding the foregoing, in the event that any person observes a provider who appears to be currently impaired that person shall report the events to the Medical Staff President and/or CEO immediately. The Medical Staff President and CEO may order an immediate drug or alcohol screen if, in their opinion, circumstances so warrant. Failure to submit to required testing will result in automatic suspension.
1.1(c)If, after discussing the incidents with the individual who filed the report, the Chief Executive Officer and Medical Staff President believe there is sufficient information to warrant further inquiry, the Chief Executive Officer and Medical Staff President may:
1. Meet personally with the provider or designate another appropriate person to do so; and/or
2. Direct in writing that a review be instituted, and a report thereof be rendered by the Assistance Committee.to the committee will review the issue within five (5) days of receipt of the request.
1.1(d)In performing all functions hereunder, the Chief Executive Officer and Medical Staff President shall be deemed authorized agents of the MEC and the Assistance committee and shall enjoy all immunity and confidentiality protections afforded under state and federal law.
1.1(e)Following a written request to review, the Assistance committee shall review the concerns raised and any and all incidents that led to the belief that the provider may be impaired. The assistance committee's review may include, but is not limited to, any of the following:
1. A review of any and all documents or other materials relevant to the review;
2. Interviews with any and all individuals involved in the incidents or who may have information relevant to the review, provided that any specific inquiries made regarding the provider's health status are related to the performance of the provider's clinical privileges and Medical Staff duties and are consistent with proper patient care or effective operation of the Hospital;
3. A requirement that the provider undergo a complete medical examination as directed by the Assistance committee, so long as the exam is related to the performance of the provider's clinical privileges and Medical Staff duties and is consistent with proper patient care or the effective operation of the Hospital; and
COPY 4. A requirement that the provider take a drug test to determine if the provider is currently using drugs illegally or abusing legal drugs. 1.1(f)The Assistance committee shall meet informally with the provider as part of its review. This meeting does not constitute a hearing under the due process provisions of the Hospital's Medical Staff Bylaws or pertinent credentialing policy and is not part of a disciplinary action. At this meeting, the Assistance committee may ask the provider health-related questions so long as they are related to the performance of the provider's clinical privileges and Medical Staff duties and are consistent with proper patient care and the effective operation of the Hospital. In addition, the Committee may discuss with the provider whether a reasonable accommodation is needed or could be made so that the provider could competently and safely exercise his or her clinical privileges and the duties and responsibilities of Medical Staff appointment.
1.1(g)Based on all of the information reviewed, the Assistance committee shall determine:
1. Whether the provider is impaired, or what other problem, if any, is affecting the provider;
2. Whether the provider would benefit from professional resources, such as counseling, medical treatment, or rehabilitation services for purposes of diagnosis and treatment of the condition or concern, and if so, what services would be appropriate;
3. If the provider is impaired, the nature of the impairment and whether it is classified as a disability under the ADA;
4. If the provider's impairment is a disability, whether a reasonable accommodation can be made for the provider's impairment such that, with the reasonable accommodation, the provider would be able to competently and safely perform his or her clinical privileges and the duties and responsibilities of Medical Staff appointment;
5. Whether a reasonable accommodation would create an undue hardship upon the Hospital,
such that the reasonable accommodation would be excessively costly, extensive, substantial, or disruptive, or would fundamentally alter the nature of the Hospital's operations or the provision of patient care; and
6. Whether the impairment constitutes a "direct threat" to the health or safety of the provider, patients, Hospital employees, physicians, or others within the Hospital. A direct threat must involve a significant risk of substantial harm based upon medical analysis and/or other objective evidence. If the provider appears to pose a direct threat because of a disability, the Committee must also determine whether it is possible to eliminate or reduce the risk to an acceptable level with a reasonable accommodation.
1.1(h)If the review produces sufficient evidence that the provider is impaired, the CEO or Assistance Committee shall meet personally with the provider or designate another appropriate individual to do so. The provider shall be told that the results of a review indicate that the provider suffers from an impairment that affects his/her practice. The provider should not be told who filed the report, and does not need to be told the specific incidents contained in the report
1.1(i)If the Assistance committee determines that there is a reasonable accommodation that can be made as described above, the Committee shall attempt to work out a voluntary agreement with the provider, so long as that arrangement would neither constitute an undue hardship upon the Hospital or create a direct threat, also as described above. The Chief Executive Officer and Medical Staff President shall be kept informed of attempts to work out a voluntary agreement between the Committee and the provider and shall approve any agreement before it becomes final and effective.
COPY 1.1(j)If the Assistance committee determines that there is no reasonable accommodation that can be made as described above, or if the Assistance Committee cannot reach a voluntary agreement with the provider, the committee shall make a recommendation and report to the MEC, through the Medical Staff President, for appropriate corrective action pursuant to the Bylaws. If the MEC's action would provide the provider with a right to a hearing as described in the Hospital's Medical Staff Bylaws or credentialing policy, all action shall be taken in accordance with the Fair Hearing Plan, and strict adherence to all state and federal reporting requirements will be required. The Chief Executive Officer shall promptly notify the provider of the recommendation in writing, by certified mail, return receipt requested. The recommendation shall not be forwarded to the Board until the individual has exercised or has been deemed to have waived the right to a hearing as provided in the Hospital's Medical Staff Bylaws or credentialing policy
1.1(k)The original report and a description of the actions taken by the Assistance committee shall be included in the provider's confidential file. If the initial or follow-up review reveals that there is no merit to the report, the same shall be noted on the report and no further action shall be taken. If the initial or follow-up review reveals that there may be some merit to the report, but not enough to warrant immediate action, the report shall be included in a separate portion of the provider's file and the provider's activities and practice shall be monitored until it can be established that there is, or is not, an impairment problem
1.1(l)The Chief Executive Officer shall inform the individual who filed the report that follow-up action was taken but shall not disclose confidential peer review information or specific actions implemented.
1.1(m)All parties shall maintain confidentiality of any provider referred for assistance, except as limited by law, ethical obligation, or when safety of a patient is threatened. Throughout this process, all parties shall avoid speculation, conclusions, gossip, and any discussions of this matter with anyone outside those described in this policy.
1.1(n)In the event of any apparent or actual conflict between this policy and the bylaws, rules and regulations, or other policies of the Hospital or its Medical Staff, including the due process sections of those bylaws and policies, the provisions of this policy shall control.
1.1(o)Nothing herein shall preclude commencement of corrective action, including summary suspension under the Medical Staff Bylaws, or termination of any contractual agreements between the Hospital and the provider, including any employment agreement, in the event that the provider's continued practice constitutes a threat to the health or safety of patients or any person.
1.1 (p) The hospital may seek the advice of hospital counsel to determine whether any conduct must be reported to law enforcement authorities or other government agencies, and what further steps must be taken.
2.1Rehabilitation & Reinstatement Guidelines
COPY 1. Hospital and Medical Staff leadership shall assist the provider in locating a suitable rehabilitation program. A provider who may benefit from counseling or rehabilitative services, but who is not believed to be impaired in his ability to competently and safely perform his/her clinical privileges or the duties of Medical Staff membership, may be referred for assistance while still actively practicing at the Hospital. In cases where the provider's ability is believed to be impaired, the provider shall be allowed a leave of absence if necessary. A provider who is determined to have an impairment which requires a leave of absence for rehabilitation shall not be reinstated until it is established, to the satisfaction of the Assistance committee, the MEC and the Board, that the provider has successfully completed a program in which the Hospital has confidence. 2.1(a)Substance Abuse - If it is determined that the provider suffers from a drug or alcohol related impairment that could be reasonably accommodated through rehabilitation, the following are guidelines for rehabilitation and reinstatement:
2. Upon sufficient proof that a provider who has been found to be suffering from an impairment has successfully completed a rehabilitation program that provider may be considered for reinstatement to the Medical Staff.
3. In considering an impaired provider for reinstatement, the Hospital and Medical Staff leadership must consider patient care interests paramount.
4. The Assistance Committee must first obtain a letter from the physician director of the rehabilitation program where the provider was treated. The provider must authorize the release of this information. That letter shall state:
i. Whether the provider is participating in the program; (ii)Whether the provider is in compliance with all of the terms of the program; (iii)Whether the provider attends AA meetings or other appropriate meetings regularly (if appropriate); (iv)To what extent the provider's behavior and conduct are monitored;
(v)Whether, in the opinion of the director, the provider is rehabilitated;
(vi)Whether an after-care program has been recommended to the provider and, if so,
a description of the after-care program; and
(vii)Whether, in the director's opinion, the provider is capable of resuming medical practice and providing continuous, competent care to patients.
5. The provider must inform the Assistance Committee of the name and address of his or her primary care physician and must authorize that physician to provide the Hospital with information regarding his or her condition and treatment. The Assistance Committee has the right to require an opinion from other physician consultants of its choice.
6. From the primary care physician, the Assistance Committee needs to know the precise nature of the provider's condition, and the course of treatment as well as the answers to the questions posed above in (4)(e) and (g).
7. Assuming all of the information received indicates that the provider is rehabilitated and capable of resuming care of patients, the Assistance Committee, MEC and the Board shall take the following additional precautions when restoring clinical privileges:
i. The provider must identify another provider who is willing to assume responsibility for the care of his or her patients in the event of his or her inability or unavailability; and
COPY ii. The provider shall be required to obtain periodic quarterly reports for the Assistance Committee from his or her primary physician-for a period of time specified by the Chief Executive Officer-stating that the provider is continuing treatment or therapy, as appropriate, and that his or her ability to treat and care for patients in the Hospital is not impaired. 8. The provider's exercise of clinical privileges in the Hospital shall be monitored by the department chairperson or by a physician appointed by the department chairperson. The nature of that monitoring shall be determined by the Assistance Committee after its review of all of the circumstances.
9. The provider must agree to submit to an alcohol or drug screening test (if appropriate to the impairment) at the request of the Chief Executive Officer or designee, the Chairperson of the Assistance Committee or the pertinent department chair.
(10) All requests for information concerning the impaired provider shall be forwarded to the Chief Executive Officer for response.
2.1(b)Physical, Psychiatric or Emotional Illness - If it is determined that the provider suffers from an acute or ongoing physical, psychiatric, or emotional illness or injury that is not drug or alcohol related and could be reasonably accommodated through rehabilitation or treatment, the following are guidelines for rehabilitation or treatment and reinstatement:
1. If applicable, the Hospital and Medical Staff leadership shall assist the provider in locating a suitable rehabilitation program or treatment plan. A provider who may benefit from counseling or rehabilitative services, but whose illness or injury is not believed to interfere with his ability to competently and safely perform his/her clinical privileges or the duties of Medical Staff membership, may be referred for assistance while still actively practicing at the Hospital. In cases where the provider's ability is believed to be undermined, the provider shall be allowed a leave of absence if necessary. A provider who is determined to have an illness or injury which requires a leave of absence for rehabilitation or treatment shall not be reinstated until it is established, to the satisfaction of the committee, the MEC and the Board, that the provider has successfully completed any necessary rehabilitation or treatment in which the Hospital has confidence.
2. Upon sufficient proof that a provider who has been found to be suffering from an illness has successfully completed treatment or has been cleared for return to practice by his/her treating physician (as applicable), that provider may be considered for reinstatement to the Medical Staff.
3. In considering a provider for reinstatement, the Hospital and Medical Staff leadership must consider patient care interests paramount.
4. If requested by the committee, the provider must provide the name and address of his or her primary care physician and must authorize that physician to provide the Hospital with information regarding his or her condition and treatment. The committee has the right to require an opinion from other physician consultants of its choice.
5. Assuming all of the information received indicates that the provider is rehabilitated or recovered and capable of resuming care of patients, the committee, MEC and the Board may take the following additional precautions when restoring clinical privileges:
6. The provider's exercise of clinical privileges in the Hospital shall be monitored by the department chairperson or by a physician appointed by the department chairperson. The nature of that monitoring shall be determined by the committee after its review of all of the circumstances.
COPY i. The provider must identify another provider who is willing to assume responsibility for the care of his or her patients in the event of his or her inability or unavailability; and ii. The provider may be required to obtain periodic reports for the committee from his or her primary physician, for a period of time specified by the Committee, stating that the provider is continuing treatment or therapy, as appropriate, and that his or her ability to treat and care for patients in the Hospital is not impaired.
(7)All requests for information concerning the impaired provider shall be forwarded to the Chief Executive Officer for response
APPENDIX "E" – PROFESSIONAL PERFORMANCE REVIEW POLICY
1.1PURPOSE
1.1(a)To define the process for conducting performance evaluations, establish the method and duration of monitoring, and circumstances under which monitoring by an external source or focused review may be required;
Mechanisms utilized to accomplish this evaluation include:
1. Individual Record Review
2. Ongoing Professional Practice Evaluation
3. Focused Professional Practice Evaluation
1.1(b)To define the type of data (criteria/indicators), outlined in Addendum A, to be collected for the ongoing and focused professional practice evaluation and ensure this information is integrated into performance improvement initiatives and used to determine whether to continue, limit or revoke any existing privilege(s);
1.1(c)To ensure reported concerns regarding a privileged practitioner's professional practice are uniformly investigated and addressed as defined by the organization and applicable laws; The purpose of peer review is to ensure quality medical services at Community Medical Center. The Medical Staff seeks to ensure a uniform and consistent method of review, evaluation and documentation of provider occurrences and peer review for the purpose of performance improvement, risk reduction, patient safety, appropriate utilization, and reduction of morbidity and mortality.
1.1(d)To measure, assess, and resolve clinical performance issues on an organization-wide basis and to promote high quality patient care; and
1.1(e)To conduct an effective peer review process that is evidence-based, consistent, timely defensible, balanced, useful, and ongoing.
2.1SCOPE
This policy applies to all Medical Staff and APPs privileged through the medical staff credentialing process of the Hospital. However, providers who, by virtue of staff category (e.g., consulting, honorary, affiliate, etc.), have not been granted privileges and have no volume at the facility are exempt from the OPPE and FPPE requirements contained herein.
COPY 3.1DEFINITIONS 3.1(a)Focused Professional Practice Evaluation (FPPE) – A time-limited (for a specific period of time OR a specific volume/number of procedures, admissions, encounters, etc.) evaluation of practitioner or APPP's competence in performing a specific privilege. This process is implemented for (1) all newly requested privileges, and (2) whenever recommended by the applicable committee or department when a question arises regarding a practitioner's ability to provide safe, high quality patient care, or a "trigger" event, as outlined in Addendum A, occurs. 3.1(b)Ongoing Professional Practice Evaluation (OPPE) – A documented summary of ongoing data collected for the purpose of assessing a practitioner or APP's clinical competence and professional behavior. The information gathered during this process factors into the decision to maintain, revise or revoke existing privileges
3.1(c)Peer – An individual who possesses the same or similar medical specialty knowledge and training as the individual being reviewed. Note that an individual functioning as a peer reviewer will not have performed any medical management on the patient whose case is under review. However, opinions and information may be obtained from participants that were involved in the patient's case.
Only those providers who have successfully completed and/or are not currently under FPPE for the same privileges are able to conduct FPPE for another provider.
3.1(d)Practitioner – The definition of "practitioner" shall be the same as in the Medical Staff
Bylaws.
4.1POLICY
The Medical Staff, through the activities of departmental and committee review, will monitor and evaluate the quality and appropriateness of patient care provided by all medical staff licensed independent practitioners and allied health professionals with delineated clinical privileges and/or scopes of practices.
The review process involves monitoring, analyzing, and understanding those special
circumstances of practitioner performance which require further evaluation. If there is uncertainty regarding the practitioner's professional performance, the course of action defined in the Medical Staff Bylaws for further evaluation should be followed. It is not intended that this Policy supersede any provisions of the Medical Staff Bylaws. If the performance of the practitioner is sufficiently egregious, the Medical Staff President or CEO shall determine, within his/her sole discretion, whether the provisions of this Policy need not be followed, whereupon the provisions of the Medical Staff Bylaws, and not this Policy, shall govern.
If behavior that undermines a culture of safety or practitioner wellness is identified as a potential concern, the Behavior that Undermines a Culture of Safety Policy or Practitioner Wellness Policy, as appropriate, may be implemented in conjunction with this Policy. However, nothing herein limits the appropriate committee, MEC or Board's obligations or authority under either Policy.
When findings of this process are relevant to an individual's performance the Medical Staff is responsible for determining their use in ongoing evaluation of a practitioner's competence, in accordance with Joint Commission standards on renewing or revising clinical privileges.
5.1 SCREENING
The Quality Director or his/her designee will perform concurrent and retrospective chart reviews as part of the routine peer review process, which shall not be considered an "investigation" as that term is contemplated by the Medical Staff Bylaws. Any individual (including patients/family, medical staff, allied health professional or Hospital staff) may report any concerns regarding the professional performance of a practitioner. If a case meets the screening indicator criteria, the screener will refer the case to an appropriate physician peer reviewer for evaluation and scoring.
COPY 6.1 RESPONSIBILITIES The Quality Director or his/her designee is responsible for coordinating and facilitating review activities, forwarding cases to the designated Department Chairperson or his/her designee, as appropriate, per the criteria/indicators for review identified in Addendum A, trending data related to individual practitioner performance, and providing periodic summary reports for review by the Department, applicable peer review committees and MEC of patterns/trends identified.
Each department chair responsible for the ongoing review of patient care rendered by the members of his/her department may, at his/her discretion, designate other members of the department to collaborate with him/her or conduct FPPE as appropriate.
The department chair, or his/her designee peer review screener, will review the medical record, score the case using the rating scale contained herein, identify opportunities for improvement and make recommendations whether any further intervention/action is needed. All cases scored as 3, 4 or 5 will be referred for a higher level of departmental review or by a special panel of peers assigned by the Department Chairperson, Medical Staff President, MultiSpecialty peer review committee (MSPR) or MEC.
Functions and duties of the MSPR committee will be to:
a. Review all charts that are referred to the committee;
b. Review any significant fallout from the peer review indicators identified by the medical staff;
c. Oversee all Ongoing Professional Practice Evaluation (OPPE) and Focused Professional Practice Evaluation (FPPE);
d. Provide recommendation to the MEC for any sanctions related to a medical staff
members performance on the medical staff and
(e) Review physician and other practitioner related hospital wide quality data.
The MEC will serve as the oversight committee for all medical staff performance improvement activities, review findings of ongoing and focused practice evaluations, and take action as appropriate. The MEC will consider all documented cases which meet the criteria for review at the time of renewing, revising, limiting or revoking existing privileges, and make recommendations to the Board of Trustees regarding ongoing and focused professional practice reviews, as appropriate.
The MEC reviews and modifies, as appropriate, this Policy at least every two (2) years and peer review indicators as needed, but at least annually, with input from the individual departments and the Quality Department.
7.1 CRITERIA/INDICATORS FOR REVIEW
The following are six (6) areas of general competence that may be considered in review:
* Patient care;
COPY • Medical/clinical knowledge; • Practice-based learning and improvement; • Interpersonal and communication skills; • Professionalism; and • Systems-based practice The Medical Staff, in conjunction with the applicable departments, will develop and update the criteria/indicators to be collected for OPPE and the "triggers" for FPPE, attached hereto as Addendum A III.A.2. The Medical Staff Departments and Committees establish criteria and indicators against which medical records are screened for reviewable circumstances. The indicators and criteria may apply to a single event, a series of events, or to practice patterns.
III.B.4.Trauma Committee Peer Review
a. Trauma Peer Review will be conducted during the Trauma Committee and not follow the Multispecialty Peer Review Committee process as outlined above. This process is as follows:
i. The Trauma Committee Chair and the Trauma Coordinator will identify charts for peer review using the Peer Review Trauma indicators.
FPPE may also be conducted when questions arise regarding a practitioner's professional performance that may affect the provision of safe, high-quality patient care as an outcome of the peer review process.
8.1REVIEW PROCESS
8.1(a)Professional performance reviews, which include OPPE and FPPE, may include, but shall not be limited to:
* Periodic chart reviews;
* Use of external peer review;
* Simulation;
* Proctoring by direct observation;
* Extension of monitoring period to further evaluate competency and/or performance evaluation;
* Evaluation of medical assessment and treatment of patients;
* Consultations/discussions with other individuals involved in the care of the patient;
* Adverse privileging decisions;
* Use of medications;
* Use of blood and blood components;
* Operative and other procedures;
* Appropriateness of clinical practice patterns;
* Significant departures from established patterns of clinical practice;
* Use of developed criteria for autopsies;
* Monitoring of diagnostic and treatment techniques;
COPY • Discussion with other individuals involved in the care of each patient, including consulting physicians, assistants at surgery, nursing, and administrative personnel. The Chair of the MPRC or designee will assign FPPE/peer review case to a member of the MPRC for review prior to Committee discussion. To this aim, the Multispecialty Peer Review Committee (MPRC) functions as the peer review arm of the Medical Staff. 8.1(b) Duties of the MPRC Peer Reviewer: a. Cases are to be reviewed timely (should be within 30 days of referral or by the next committee meeting). 8.1(c) Evaluation is accomplished through a review of various data sources, which may include, but are not limited to the following:
* Monitoring clinical practice patterns
* Complications
* Complaints/Compliments
* Volume
* Length of stay patterns
* Morbidity and mortality data
* Peer review cases/chart reviews
* Suspensions
* Medical record deficiencies
* Patient, peer, family, staff complaints
* Pharmacy, Therapeutics/Infection Control Committee
* Medical Records/Utilization Review Committee
* Patient Care Conferences
* Blood and Tissue Reviews
* Patient Safety data
* Quality Core Measures
* Occurrence reports
* Sentinel event data
* Mortality Reviews
* Other relevant criteria as determined by the organized medical staff
Data Sources for Evaluation: Data for FPPE must include activities performed at the organization where privileges have been requested whenever possible. Low volume practitioners may request that supplemental data be used from another CMS-certified organization where they hold the same privileges. 8.1 dTrauma Committee Peer Review
a. Trauma Peer Review will be conducted during the Trauma Committee and not follow the Multispecialty Peer Review Committee process as outlined above. This process is as follows:
i. The Trauma Committee Chair and the Trauma Coordinator will identify charts for peer review using the Peer Review Trauma indicators.
9.1OPPE
COPY ii. The Trauma Committee Chair will present those identified peer review charts to the Trauma Committee for discussion and the Committee will determine the recommended action. iii. The Trauma Committee meeting minutes will reflect the rationale for the recommendation made for each peer review chart reviewed. iv. The Trauma Committee Chair or the Trauma Coordinator will report all Trauma peer review recommendations to the Multispecialty Peer Review Committee. v. The Multispecialty Peer Review Committee reserves the right to conduct a second peer review of trauma cases.
OPPE is used to assess the competence of those practitioners privileged through the medical staff process. All OPPE data will be reviewed by the applicable department or service chairperson or his/her designee/reported for review/action at least annually for overall performance and comparison purposes or to determine whether there are any performance improvement initiatives that need to be addressed further, which are related to organizational processes or clinical practices.
All reviews shall be considered a part of the confidential peer review activity of the medical staff, and the written results of OPPE shall become part of the practitioner or APP's quality file and will be included in the decision to maintain existing privileges, revise existing privileges or to revoke existing privileges prior to or at the time of renewal. Results of OPPE shall be communicated in writing to the practitioner or APP at least annually.
10.1FPPE
The Medical Executive Committee will determine the number of cases and type of evaluation to be completed for all initially granted privileges.
FPPE is implemented (1) for all newly requested privileges, and (2) whenever a question arises regarding a practitioner's ability to provide safe, high quality patient care, or a "trigger" event occurs. The Credentials Committee, a Department, a Department Chairperson, any peer review committee, the MEC, or the Board may recommend FPPE.
Periods of FPPE implemented for reasons other than for a newly requested privilege must be timelimited (for a specific period of time OR a specific volume/number of procedures, admissions, encounters, etc.). The terms of the FPPE must be communicated to the affected practitioner or APP in writing, which shall include the reasons for the FPPE; the specific period of time or specific volume/ number of procedures, admissions, encounters, etc.; and the method for monitoring specific to the privileges giving rise to the review.
Cases reviewed pursuant to an FPPE may be selected either by ongoing monitoring of clinical practice patterns using the criteria/indicator "triggers" outlined in Addendum A, attached, or when there is an unexpected patient outcome. Such FPPE may be accomplished through:
10.1(a)Review of certain cases/procedures (e.g., all laparoscopic cholecystectomy cases; or all cesarean sections) during an identified period of time;
COPY 10.1(b)Review of an identified number of cases or procedures performed; or 10.1(c)Review of a randomly selected percentage of cases during a specified time period. All reviews shall be considered a part of the confidential peer review activity of the medical staff, and the written results of FPPE shall become part of the practitioner or APP's quality file and will be included in the decision to maintain existing privileges, revise existing privileges or to revoke existing privileges prior to or at the time of renewal. 11.1RATING SCALE The peer reviewer uses the following rating scale to assess the cases:
| 0 | Quality of care, treatment, or services meets or exceeds medical standards of practice |
|---|---|
| 1 | Medical management in variance with acceptable standards of practice but it is without potential for: • Anatomical or physiological impairment, disability or death • Unnecessary prolonged treatment, complications, or readmissions |
| 2 | Medical management in variance with standards of medical practice and it is with the potential for adverse consequence: • Anatomical or physiological impairment, disability or death • Unnecessary prolonged treatment, complications, or readmissions |
| 3 | Medical management does not meet acceptable standards of practice (disease, or symptoms caused, exacerbated or allowed to progress) resulting in: |
| | • Anatomical or physiological impairment or disability • Unnecessary prolonged treatment, complications or readmissions |
|---|---|
| 4 | Medical management does not meet acceptable standards of practice resulting in: • Adverse Outcome |
| 5 | Medical management does not meet acceptable standards of practice resulting in: • Death |
MPRC will refer concerns as follows directly to The Assistance Committee or referred to the CMO and handled by the Collegial Intervention process identified previously in this document:
I. Malevolent or Willful Misconduct
II. Possible Unintended Human Error
III. Possible System Induced Error
COPY RATING ACTION 0, 1 Case approved. • Results used for trending only 12.1ACTIONS BASED ON THE RATINGS The criteria utilized to determine the type of action/intervention imposed are based on severity, frequency of occurrence, and trigger threshold parameters. The following actions/interventions are taken based upon the rating assigned: LEVEL 1—DEPARTMENTAL CHAIR REVIEW (or designated initial peer reviewer)
* Case review sheet to Medical Staff Coordinator for physician's reappointment file
LEVEL 2—REVIEW BY APPROPRIATE CLINICAL DEPARTMENT
2, Further review indicated
3
* Department Chair may decide to track and trend
* Presented at appropriate department meeting
Recommendation of the department may include
A. Case found to be acceptable – No further action needed
* Results used for trending only
* Case review sheet to Medical Staff Coordinator for physician's reappointment profile
A. Further review indicated—Refer to MEC
* A focus review plan is proposed
LEVEL 3—MEDICAL EXECUTIVE COMMITTEE REVIEW
2, 3, 4, Further review indicated by the department.
5
* Responsible physician notified case to be reviewed by MEC and given notice of the meeting
Recommendation of the MEC may include:
A. Require additional education
B. A review of additional cases
I. Assignment of proctor for certain procedures
I. Require consultation for specific diagnoses
COPY A. Institute a focused professional practice evaluation (FPPE) or specified scope and duration A. Limit, modify, restrict, suspend, or revoke existing privilege(s) • MEC notifies responsible physician by special notice of recommendation(s) made • Case review sheet to Medical Staff Coordinator for physician's reappointment file 13.1EXTERNAL PEER REVIEW
The Board of Trustees, the Medical Executive Committee, the Medical Staff President, CEO or a Department Chairperson or CHAIR of PEER REVIEW has the authority to request external peer review. Circumstances that may indicate an external review may include, but are not limited to:
There is no member who qualifies as a "peer", or expertise is lacking;
* Conflict of interest exists that cannot be appropriately resolved by the MEC or Board;
* Professional standards are not clear, non-existent, or inconsistent;
* Need for opinion from an impartial, expert outsider due to confusing, ambiguous, or conflicting internal review opinion;
* There is potential for medical malpractice suit or significant compliance issue, legal counsel or risk management may recommend external review;
* When a matter has the potential to lead to an action that would require a hearing pursuant to the Health Care Quality Improvement Act of 1986.
14.1DOCUMENTATION
Cases presented at meetings will be referred to and referenced by the medical record number/patient account number/case ID number and not by the patient's name. The physician's ID# will be used rather than the name of the physician. The reason the case is being reviewed (i.e., mortality review, blood criteria not met, complications, etc.), and results of peer review findings, recommendations to continue, limit, modify or restrict privileges, will be recorded in meeting minutes
15.1REPORTING
Department-specific case review results are reported quarterly in aggregate to the respective clinical department. Composite case review ratings for all departments are presented to the Medical Executive Committee and Board quarterly
16.1CONFIDENTIALITY & MAINTENANCE OF FILES
No copies of peer review documents will be created or distributed, unless required and authorized by applicable law or allowed the Medical Staff Bylaws or Fair Hearing Plan. A practitioner or APP may review his/her quality file by making an appointment with the Medical Staff Office and Medical Staff President, provided that the Medical Staff President and CEO may, in their sole discretion, redact any personal information (e.g., reviewer, patient, or employee identities) from the file before the practitioner or APP reviews the file.
The Medical Staff President, the Medical Staff President Elect, the Credentials Chair, the Department Chair, CEO, Chief Medical Officer, and the Director of the Quality department may access the files of medical/allied health staff members only for performance of the responsibilities of the position as it relates to peer review.
COPY Practitioners or APPs shall be permitted to submit written responses to any peer review matter for which he/she is being reviewed for placement in his/her peer review/quality file. Any physician can access their quality files under the supervision of the Chief Medical Officer and/or a member of the Quality Risk Management department. All quality records are confidential and will be retained in the Quality Department. Arrangements will be made for a review location on a case-by-case basis.
Approval Signatures
|
JOURNAL OF WATER AND LAND DEVELOPMENT
e-ISSN 2083-4535
Polish Academy of Sciences (PAN) Institute of Technology and Life Sciences – National Research Institute (ITP – PIB)
JOURNAL OF WATER AND LAND DEVELOPMENT DOI: 10.24425/jwld.2024.150268 2024, No. 61 (IV–VI): 143–150
Strategic sustainability: Unveiling the crucial role of solid waste management in environmental balance
Seror N.M. Aldouri
University of Samarra, College of Administration and Economics, Department of Business Administration, University St, Salh al Deen, 34010, Samarra, Iraq
RECEIVED 11.12.2023
ACCEPTED 22.04.2024
AVAILABLE ONLINE 07.06.2024
Abstract: This research investigates sustainable solid waste management practices at the State Company for the Manufacture of Medicines and Medical Supplies in Samarra. Using Statistical Package for the Social Sciences (SPSS) ver. 23, key variables such as education, participation, implementation, and policy were analysed to assess their impact on environmental balance. A sample of 62 staff members was surveyed from a population of 785, ensuring reliability and representative insights. The study revealed high internal consistency and validity for the analysed variables. Sustainable management dimensions were thoroughly explored, and the average score for sustainable management was found to be 3.102, indicating a strong level of agreement among participants regarding these dimensions. Specific hypotheses related to education, participation, implementation, and policy were confirmed through robust statistical analyses. Variation analysis revealed statistically significant differences in sustainable management dimensions and their impact on environmental balance. Regression analysis demonstrated relationships between participation, implementation, policy, and environmental balance, with R 2 (coefficient of determination) values indicating the explanatory power of these relationships. The results underscore the critical role of education, participation, implementation, and policy in achieving environmental balance within the context of sustainable waste management practices. This study contributes valuable insights into effective strategies for promoting environmental sustainability in waste management initiatives, emphasising the importance of targeted interventions in education, participatory engagement, implementation strategies, and policy frameworks.
Keywords: environmental balance, pollution, recycling solid waste, solid waste, sustainable management
INTRODUCTION
raise sustainable performance (Tsai et al., 2020; Malinowski et al., 2021).
The State Company for the Manufacture of Medicines and Medical Supplies in Samarra is striving to minimise waste and promote sustainability in alignment with the global economic shift towards sustainable development. Recognising the environmental impact and depletion of natural resources, the company aims to address the accumulation of solid waste through international efforts, considering medical waste as a potential economic resource and energy source. The quality and quantity of solid waste generation are influenced by socio-economic factors, cultural habits, urban structures, population, and commercial activities (Ghacha, Ammari and Ben Allal, 2020). Public service systems must include integrated solid waste management. Proposals and evaluations of better waste management systems are needed to improve waste process activities and
The negative impact of industrial and technological development, coupled with the misuse and rapid depletion of natural resources, has raised global concerns about the threat to humanity. The international community has responded by emphasising environmental balance as a crucial aspect of sustainable development at all levels. The contemporary focus on environmental protection and management is underscored as a significant theme in scientific research and international conferences. The aim is to formulate development plans that mitigate environmental degradation while promoting economic and social integration (Kaczmarek, et al. 2022). On this basis, global interest in and good governance of the environment in the context of sustainable development has been strengthened through international platforms that have sought to engage
a few experts and actors in environmental balance management. There will always be a need for leaders who can work together in harmony to promote environmental awareness and long-term development. According to the conditions in which we find ourselves, the decision to integrate peacefully is based on local needs (Ikegbu, 2017; Ge, Yang and Fekete, 2021).
The attainment of ecosystem and environmental balance relies on implementing environmental policy perspectives and adhering to the principles of environmental sustainability. This entails a nuanced understanding of macroeconomic and microeconomic actions, alongside effective leadership for policy management and sustainability. Introducing the concept of environmental capitalism, it advocates for recognising nature's inherent capital, termed natural capital or environmentally profitable ecosystems. Governments are urged to adopt this perspective and utilise existing policy tools to tackle environmental challenges. Sustainability, broadly defined, entails promoting human well-being while preserving environmental and natural system capacities. The three pillars approach underscores the pursuit of economic, social, and environmental sustainability goals in businesses. Ethical treatment of individuals, both within and outside organisations, is deemed critical for achieving sustainability. "Corporate sustainability" encompasses diverse efforts by firms to enhance stakeholders' lives and benefit communities, with a focus on conserving resources, protecting the environment, and addressing employee needs at the corporate level. These principles are supported by studies such as those by Ghabbour (1992), Dyllick and Hockerts (2002), Rheede van and Blomme (2012), Pérez and Bosque del (2014), and Eslami et al. (2022).
Solid waste management must be done in a way that protects community health and the environment by utilising an integrated, complex, multicomponent, and interconnected system supplied by the environmental leader (Abad et al., 2023; Nejatian et al., 2023). As a result, it is important to take the right steps, taking into account what resources and conditions are available, and choosing the best solutions that meet environmental policy and sustainability criteria at the lowest cost and recovery possible. The long-term sustainability of a company's environmental impact is heavily influenced by the values held by environmentally conscious managers, as emphasised by Park and Kim (2014) and Han et al. (2015). Altruistic behaviour, rooted in environmental values, plays a crucial role in pro-environmental activities. The norm-activation theory of altruism, as proposed by Schwartz (1977) and further supported by Nordlund and Garvill (2002), suggests that an individual's values activate altruistic conduct through moral norms or responsibilities. The theory of environmentalism based on values, beliefs, and norms (VBN), as outlined by Stern (2000), argues that individuals with strong environmental values are more likely to be environmentally aware, take personal responsibility for their actions, and support or engage in pro-environmental efforts. As companies have gained prominence, there is a growing recognition of their responsibility to address environmental challenges (Metcalf and Benn, 2013). According to Epstein and Buhovac (2014), the development and communication of sustainability plans are crucial for long-term success. The literature emphasises the role of responsible leadership in improving a company's social and environmental performance (Voegtlin, Patzer and Scherer, 2012), defined by Maak (2007) as the ability to build trusting relationships and coordinate responsible action toward a shared corporate purpose. Environmental leadership is characterised as the skill of engaging both internal and external stakeholders in pursuit of the company's environmental sustainability goals. Effective communication is crucial for environmentally responsible leadership, necessitating engagement with both internal and external stakeholders. Leaders responsible for a company's environmental decisions must consider the impacts on all stakeholders and employees (Voegtlin, Patzer and Scherer, 2012; Epstein and Buhovac, 2014). An essential skill for environmentally conscious leaders is the ability to persuade employees about the importance of environmental sustainability as a core company value (Shacheri et al ., 2022). This skill fosters employee recognition of environmental issues in their daily routines, encouraging active participation in environmental initiatives (Farrukh et al ., 2022). Previous research, such as the work by Hoogh De and Hartog Den (2008), has established a connection between leadership style and company performance. Voegtlin, Patzer and Scherer (2012) emphasise the association between a company's social or environmental performance and socially responsible leadership. In the context of Indian managers, Khuntia and Suar (2004) found a strong correlation between empowerment and altruistic leadership styles, suggesting that environmentally conscious leaders are more likely to exhibit commitment to environmental issues. Shifting to the broader perspective of sustainable development goals, UN-HABITAT (2010) highlights sustainable solid waste management as a crucial strategy. However, many nations face challenges in solid waste management due to a lack of knowledge and regulatory infrastructure, as indicated in the literature this evaluation focuses on.
In the context of discussing previous knowledge efforts, the review of past studies examines an orthographic view, revealing the contemporary nature of the subject due to its crucial applications. Additionally, past knowledge efforts have played a vital role in shaping a shared vision of management science in environmental sciences. This is achieved through the study and analysis of sustainable management variables and solid waste management. Furthermore, the identification of specific models in organisations, prioritising some over others, enhances the relevance of the topic in the examination of the researched organisation. The current research emphasises sustainable management as a key instrument for implementing environmental policy and ensuring long-term sustainability. Focusing on aspects such as environmental culture and solid waste management, it underscores the importance of a comprehensive, integrated system led by environmental leaders to safeguard community health and the environment. The approach involves considering available resources and conditions to select cost-effective solutions that align with environmental policy and sustainability criteria.
MATERIALS AND METHODS
SUSTAINABLE SOLID WASTE MANAGEMENT STRATEGIES IN SAMARRA'S PHARMACEUTICAL INDUSTRY
The methodology for this study was structured to address the problem, significance, aims, and hypotheses outlined in the research.
1) Problem statement. How the dimensions of sustainable management for solid waste could be achieved by the State Company for the Pharmaceutical Industry and Medical Appliances in
Samarra was investigated. The gap between management and environmental research in businesses was closed. Long-term solid waste management for a safer working environment in green businesses was focused on. Environmental consciousness was raised by expanding knowledge among affected individuals.
2) Aims of the research. The progression of study variables was followed through description, interpretation, and analysis. The reality of the company's solid waste management application within the model was diagnosed. Environmental balancing data for the implementation of solid waste management was evaluated. The significance of scientific and modern solid waste management and disposal was emphasised.
3) Hypotheses for research. Sustainable management could address environmental aspects, eliminate waste, and achieve environmental balance.
4) Research goals. (i) Investigate the potential for sustainable management dimensions related to education in the company. (ii) Explore the potential for sustainable management dimensions related to participation in the company. (iii) Examine the potential for sustainable management dimensions related to implementation in the company. (iv) Assess the potential for sustainable management dimensions related to politics in the company.
5) Expected outcome. Statistically significant differences in sustainable management and environmental balance within the researched company were anticipated. Statistical moral differences in sustainable management in the education domain of the researched organisation were anticipated. Statistical moral differences in sustainable management in the participation domain of the researched organisation were predicted. Statistical moral differences in sustainable management in the implementation domain of the researched organisation were expected. Statistical moral differences in sustainable management in the politics domain of the researched organisation were predicted. Statistical moral differences in sustainable management in the implementation domain of the researched organisation were expected. Statistically significant differences were anticipated in sustainable management within the political domain of the researched organisation. Section 2.2 covers the Methods of Information Gathering.
In defining research variables, the researcher employed theoretical description, logical analysis, and statistical analysis approaches. Data gathering methods included an inquiry into desk research sources and the distribution of a questionnaire to staff across medical, technical, and administrative disciplines. Out of 70 distributed questionnaires, 62 valid responses were obtained for subsequent statistical analysis.
PRACTICAL BASIS OF RESEARCH
The research involves describing and diagnosing variables using SPSS Ver23, including iterations, percentages, arithmetic settings, and standard deviations. The theoretical aspects of the model (education, participation, implementation, and politics) are discussed, focusing on the investigated corporation. A simple random sample of 62 administrative and medical staff was selected from a community of 785 to gain insights into sustainable management. The resolution's stability and reliability were assessed with a sample size of 30, revealing acceptable values for both the independent variable (0.867) and the dependent variable (0.906), exceeding the minimum acceptance rate of 0.60. This indicates the resolution's suitability for the study sample. The information on various variables and dimensions assessed in the research, along with relevant statistics.
1. Education:
a) number of questions (4): this variable, focusing on educational aspects, comprises four questions within the survey;
b) Alpha-Kronbach coefficient (0.894): the high coefficient (0.894) signifies strong internal consistency among the questions related to education in the survey;
c) validity (0.945): the validity score of 0.945 indicates that the questions effectively measure the intended educational aspects.
2. Participation:
a) number of questions (4): this variable, assessing participation-related aspects, includes four questions;
b) Alpha-Kronbach coefficient (0.884): the coefficient of 0.884 demonstrates high internal consistency among the questions related to participation;
c) validity (0.940): the high validity score (0.940) implies that the questions effectively capture the intended participation-related dimensions.
3. Implementation:
a) number of questions (4): this variable, examining implementation-related factors, comprises four questions;
b) Alpha-Kronbach coefficient (0.876): the coefficient of 0.876 indicates strong internal consistency among the questions related to implementation;
c) validity (0.935): with a validity score of 0.935, the questions are deemed effective in measuring the intended implementation-related aspects.
4. Politics:
a) number of questions (4): this variable, focusing on political aspects, includes four questions;
b) Alpha-Kronbach coefficient (0.904): the high coefficient (0.904) reflects strong internal consistency among the questions related to politics;
c) validity (0.950): the validity score of 0.950 indicates that the questions effectively measure the intended political dimensions.
5. Sustainable management:
a) number of questions (16): this variable, encompassing various aspects of sustainable management, is composed of 16 questions;
b) Alpha-Kronbach coefficient (0.867): The coefficient of 0.867 suggests a high internal consistency among the questions related to sustainable management;
c) validity (0.931): The validity score of 0.931 indicates that the questions effectively measure the intended dimensions of sustainable management.
APPLIED STATISTICAL APPROACHES
The collected data underwent tabulation, audit, and processing using SPSS and statistical methods. Variables were measured based on recent references, ensuring consistency in presentation with some adjustments for content. The researcher utilised the Likert five scale and applied statistical methods, including the arithmetic
average to gauge variable importance, standard deviation for answer concentration, Test T, Test F, and variance analysis.
This study employs a quantitative research design to analyse the impact of the educational dimension (X1) within the sustainable management variable on environmental balance (Y) (Eq. 1). A simple random sample of 62 administrative and medical staff from a community of 785 within the State Company for the Manufacture of Medicines and Medical Supplies in Samarra participated in the study.
where: Y = dependent variable (environmental balance), X1 = independent variable (educational dimension), a0 = intercept, a1 = estimated regression coefficient, indicating the change in Y for a one-unit change in X1, e = error term.
Collected data were analysed using simple linear regression to estimate the relationship between the educational dimension and environmental balance. The null hypothesis assumed no significant relationship, while the alternative hypothesis suggested a significant impact. The significance level was set at 0.05. The study provides insights into the strength and significance of the relationship through the estimated regression tilt, significance level (sig), and R-squared value (the coefficient of determination), indicating the proportion of variability in environmental balance explained by the educational dimension. Ethical considerations were ensured throughout the research process.
THEORETICAL AND CONCEPTUAL FRAMEWORK
Sustainable management of solid waste
The paragraph highlights the global shift towards sustainable solid waste management practices, emphasising waste as a valuable resource for conserving landfill space and natural resources. Producers are urged to take responsibility for product life cycles, promoting sustainability at every stage. The need for skilled professionals in light of advancing technologies is underscored. A systematic approach to waste management is outlined, emphasising waste avoidance, cleaner technology use, recycling, and proper treatment and disposal methods. Sustainability, defined as meeting current needs without compromising future generations' ability to meet their own, is a central theme. Governments increasingly focus on sustainable development, aiming to preserve environmental quality for future generations. Implementing responsible waste management technologies contributes to long-term economic and ecological stability. Social sustainability goals include empowerment, equity, and poverty alleviation. However, globalisation poses challenges to waste management, impacting public health, economic progress, and the environment. Sustainable waste management is crucial for environmental quality and the well-being of future generations, aligning with sustainable development goals (Papa, 2014; Oghenekohwo and Akporehwe, 2015; Assuah and Sinclair, 2021; Sharma et al., 2021).
Environmental balance achievement
Environmental balance management requires the involvement of various stakeholders, including the state, to preserve and sustain the environment in line with the principles of sustainable development. The environmental planning process, emphasising the integration of the environmental dimension into a participatory framework involving the state, civil society, and citizens, represents a key practice in environmental management. This participatory approach involves collective contributions to compensate affected environmental parties, utilising mechanisms like liability insurance and compensation funds. The international community aims to achieve a balance between environmental protection and natural resource conservation for economic and social well-being through the development of programs, schemes, and legal mechanisms integrated into a comprehensive development strategy, engaging all actors.
Solid waste management model
The critical role of waste management in organisations is to mitigate potential negative environmental impacts and protect public health. Diagnostic and control tools, such as solid waste management indicators, play a crucial role in decision-making, supporting information, and enhancing public health (Moreira et al., 2018). However, it highlights that weak waste management initiatives can lead to public health deterioration. Organisations address socio-environmental issues through environmental management systems, aiming to reduce natural resource consumption. The paragraph notes that these tools are insufficient for waste management decisions and lack sensitivity (Peng, Botelho and Matinlinna, 2012). It concludes by introducing the four basic dimensions of solid waste management models: education, participation, implementation, and policy, forming a composite indicator with subsets of variables (Moreira et al., 2018).
1. Education. Integral to the organisation's solid waste management model, the relationship between a company and environmental issues in employee training was emphasised. The obligation to build knowledge, train the community, and address societal challenges, such as climate change, was highlighted. Global efforts by green organisations and the adoption of environmental management systems (EMS) for environmental friendliness were observed by many European countries.
2. Participation. Post-participation criteria were employed to illustrate organisational responsibility in preparing new leaders based on sustainability principles. The community was engaged in everyday activities to foster a sustainable culture. Criteria for assessing solid waste management achievements, including considerations of sustainability culture, individual orientation, and professional development, were detailed (Yanthi et al., 2019).
3. Implementation. Day-to-day operations, solid waste treatment, process appraisal, and measurement of waste generated were encompassed. Organisations were morally obliged to lead efforts in proper solid waste management. Varied approaches, including long-standing waste management plans in industrialised nations and effective recycling programs in the United States, were observed (Vega De, Benítez and Barreto, 2008).
4. Politics. The paragraph emphasises the importance of criteria for policy and management in solid waste activities, as highlighted by McCartney (2003). The criteria involve assessing policy support and senior management's focus on transitioning to sustainable waste management. To conduct a comprehensive evaluation of waste management solutions, trustworthy data and tables are crucial at every step. Arazo (2015) stresses that a thorough understanding of the organisation's
waste structures, processing, and disposal processes is essential for organisational sustainability. Effective solid waste management requires an in-depth knowledge of the processes leading to waste generation, emphasising the need for various methods to gather quantitative data on waste amount, location, and characteristics. These methods include reviewing waste management files, visual assessments, and in-depth interviews with waste management staff.
Understanding trash generation is crucial for effective solid waste management. Identifying the sources of waste is paramount for a successful program. Organisations are morally obligated to lead in responsible waste management due to the global expansion of enterprises leading to increased waste. The introduction of solid waste management systems is imperative. Recycling and waste reduction projects, as highlighted by He et al. (2022), have proven to be highly effective in addressing the growing issue of solid waste.
The determination and measurement of the dependent variable, environmental balance, involved establishing specific metrics related to waste management practices and environmental indicators. This encompassed both quantitative and qualitative methods, including surveys, on-site observations, and analysis of waste management records. Quantitative data underwent statistical analyses, while qualitative aspects involved subjective assessments based on environmental guidelines and industry best practices.
STUDY AREA
This paper focuses on the State Company for the Manufacture of Medicines and Medical Supplies in Samarra, established in 1965 through a cooperation agreement with the former Soviet Union. Positioned as a major player in the pharmaceutical industry, the company is headquartered in Samarra and aspires to become a key pharmaceutical business in the region. The current waste management method involves regular collection from buildings across the site, utilising plastic boxes distributed in functional areas. Collected garbage, approximately 750 Mg daily, is transported to a nearby disposal facility.
The study revealed the daily volumes of waste produced from various sources within a particular organisation or location. The mess area contributes 250 Mg of waste per day. Waste generated from residential areas amounts to 200 Mg daily. The company building itself produces 170 Mg of waste each day. Various site areas and miscellaneous sources contribute an additional 120 Mg of waste per day. In summary, the data highlights the distribution of waste generation across different sources within the specified context, providing insights into the daily waste management requirements of the organisation or location. Data was collected from the management of the company concerned with waste management.
RESULTS AND DISCUSSION
DESCRIPTION OF SUSTAINABLE MANAGEMENT DIMENSIONS
Two key aspects are addressed: firstly, to describe the dimensions of sustainable management in the company, and secondly, to test the main premise, "The possibility of sustainable management in the company under study." The survey sample's perspectives on sustainable management were thoroughly analysed. Notably, the average score for the sustainable management variable was 3.102, surpassing the hypothetical average of 3. This signifies the general agreement among sample members with the statements on sustainable management. The standard deviation of 1.048 indicates homogeneity in the responses of sample members, with a relative importance of 62.03%. The first main hypothesis is affirmed based on the results. The arithmetic average of the educational dimension is 3.153, surpassing the hypothetical average, with a relative importance of 63.06%. This signifies a particular interest in the educational dimension of sustainable management. The low standard deviation (1.027) indicates homogeneity in sample members' responses. Specific paragraphs, such as "Practice awareness projects focused on waste management," received high average scores (3.548 and 70.96% relative importance), demonstrating the company's focus on awareness and guidance. The analysis confirms the first hypothesis: "The possibility of achieving the sustainable management dimensions of education in the company under study."
Table S1 summarises findings on sustainable management dimensions. 1) Participation: average (3.230), indicating significant interest (64.5% relative importance); standard deviation (1.035) suggests response homogeneity; the highest average (3.339) confirms interest in waste management programs, while the lowest (3.065) suggests clarity in business performance. 2) Implementation: average (3.044) reflects interest (60.89% relative importance), with a standard deviation (1.067) indicating response homogeneity; the highest average (3.194) highlights focus on environmental balance, while the lowest (2.919) suggests a vision for environmental conservation. 3) Policy: average (2.984) indicates interest (59.68% relative importance), with a standard deviation (1.066) suggesting response homogeneity; the highest average (3.065) implies a management vision for waste management, the while lowest (2.839) suggests a weak stance in sustainable planning.
These results provide insights into the company's focus and performance in each dimension of sustainable management, supporting or confirming specific hypotheses.
In the second main premise test, we conducted a one-way variation analysis to explore statistically significant differences in the dimensions of sustainable management and environmental balance (Y) within the researched company. Simple linear regression, with an estimated regression tilt value of 0.349, was employed to assess how changes in sustainable management (X) influenced environmental balance (Y). The analysis of the sustainable management variable revealed a probability value (sig = 0.0000) lower than the statistical morale value (α = 0.05), supporting the acceptance of the second main hypothesis. The R 2 value for the sustainable management variable was 0.455, signifying that 45.5% of the variability in environmental balance was explained by the sustainable management variable alone, while the remaining 54.5% was attributed to other unexamined variables. For the first hypothesis related to education (X1) and environmental balance (Y), a similar approach was taken. The estimated regression tilt (0.385) indicated the change in environmental balance (Y) with a one-unit change in the educational dimension (X1) within the sustainable management variable. The variation analysis of the educational dimension supported the hypothesis, with a probability value (sig = 0.0000) below
the statistical morale value (α = 0.05). The R 2 value for the educational dimension was 0.435, revealing that 43.5% of the variability in environmental balance was explained by the educational dimension alone, leaving 56.5% attributed to other unexamined variables according to the study sample members' perspectives.
Anticipates statistical moral differences in sustainable management in participation (X2) and environmental balance (Y). The estimated regression tilt (0.267) suggests a change in environmental balance Y with a one-unit change in participation dimension X2. The variation analysis indicates statistical significance (sig = 0.0000), accepting the hypothesis. The R 2 value for participation is 33.2%, indicating that this dimension alone explains that proportion of the environmental balance, with the remaining 66.8% attributed to other variables. This predicts statistical moral differences in sustainable management in implementation (X3) and environmental balance (Y). The estimated regression tilt (0.208) suggests a change in environmental balance Y with a one-unit change in the implementation dimension X3. The variation analysis shows statistical significance (sig = 0.0000), accepting the third hypothesis. The R 2 value for implementation is 21.3%, explaining that proportion of the environmental balance, with the remaining 78.7% attributed to other variables. This expects statistical moral differences in sustainable management in policy (X4) and environmental balance (Y). The estimated regression tilt (0.232) suggests a change in environmental balance Y with a one-unit change in the policy dimension X4. The variation analysis shows statistical significance (sig = 0.0000), accepting the fourth hypothesis. The R 2 value for policy is 14.4%, explaining that proportion of the environmental balance, with the remaining 85.6% attributed to other variables (Tab. 1).
Table 1. Variance analysis of sustainable management impact on environmental balance: focusing on education, participation, implementation, and policy
| Independent variable | a | β | R2 | F-value | sig |
|---|---|---|---|---|---|
| Education | 2.174 | 0.385 | 0.435 | 23.73 | 0 |
| Participation | 2.161 | 0.267 | 0.332 | 28.854 | 0 |
| Implementation | 2.259 | 0.208 | 0.213 | 63.073 | 0 |
| Policy | 2.539 | 0.232 | 0.144 | 39.243 | 0 |
| The sustainable management | 2.127 | 0.349 | 0.455 | 60.985 | 0 |
Explanations: a, β = regression coefficients, R 2 = coefficient of determination, sig = statistical significance level. Source: own study.
In summary, the study finds support for the hypothesised relationships between sustainable management dimensions (participation, implementation, policy) and environmental balance, as indicated by significant regression tilts and acceptance of hypotheses. The R 2 values highlight the proportion of environmental balance explained by each dimension individually.
The study's actionable recommendations encompass multifaceted approaches to enhance sustainable waste management within the researched organisation. Initiatives include implementing awareness projects and training programs to fortify employee knowledge. Encouraging active participation, especially among professional and technical staff, is vital, alongside reinforcing cultural interventions and technical training for a coherent business policy. Supporting waste reduction programs, engaging company management in environmental conservation, and enforcing comprehensive waste management policies are crucial for effective implementation. Regular assessment and improvement, coupled with policy updates, ensure alignment with cutting-edge waste management practices, fostering environmental balance. These recommendations collectively aim to optimise waste management strategies and contribute to a more sustainable organisational framework.
EXPLORING SUSTAINABLE MANAGEMENT DIMENSIONS: INSIGHTS AND IMPLICATIONS FOR ENVIRONMENTAL STEWARDSHIP
The findings reveal a notable level of interest and engagement in sustainable management dimensions within the company, as evidenced by the average scores and relative importance values. Particularly, the emphasis on education, participation, implementation, and policy aspects underscores a holistic approach towards sustainable waste management. The high scores in areas such as awareness projects and waste reduction programs indicate a proactive stance towards environmental stewardship and resource conservation. These results align with global trends highlighting the growing importance of corporate sustainability initiatives in mitigating environmental impacts and promoting responsible business practices. Moreover, the homogeneity in responses suggests a consistent understanding and alignment among stakeholders regarding the importance of sustainable management practices (Martin et al., 2022).
In the context of world literature, these findings resonate with studies emphasising the crucial role of education, participation, and policy frameworks in fostering sustainable development and environmental conservation efforts. Numerous research works have highlighted the positive correlation between effective waste management strategies and improved environmental outcomes (Koul, Yakoob and Shah, 2022). Additionally, insights from developed countries, where advanced waste management technologies and policies have led to significant environmental improvements, further validate the significance of the observed trends in the present study (Atiya, Chung and George, 2023). Overall, the results contribute to the growing body of knowledge on sustainable management practices and provide practical insights for organisations seeking to enhance their environmental performance and societal impact.
CONCLUSIONS
The discourse on environmental balance and sustainable management highlights several critical considerations. The adoption of participatory methods emerges as pivotal, ensuring the integration of the environmental dimension into broader economic and social development strategies. Despite the importance of environmental assessments in averting damage from developmental activities, challenges such as financial constraints and limited scientific oversight by authorities persist. The need for an evaluative approach extends beyond the establishment of new
waste management systems to include a comprehensive assessment of existing conditions, utilising available tools with awareness of persistent gaps and challenges. The substantial contribution of waste recycling to environmental protection, pollution prevention, and resource preservation is underscored, drawing parallels with successful models observed in developed nations. The study underscores the significant role of sustainable solid waste management variables in shaping corporate environmental balance, with the hypotheses shedding light on positive relationships within the theoretical framework. While most variables exhibit high values, the third-place ranking of participation signals potential shortcomings in the company's waste management practices.
However, the limitations of the study include the focus on a specific company and industry, potentially limiting generalisability to other contexts. The sample size of 62 participants might also be considered relatively small, impacting the broader applicability of the results. Additionally, the study relies on selfreported data, which could introduce response bias.
SUPPLEMENTARY MATERIAL
Supplementary material to this article can be found online at https://www.jwld.pl/files/Supplementary_material_Aldouri.pdf
ACKNOWLEDGEMENTS
The author wishes to express gratitude to the University of Samarra. He thanks all the staff of the State Company for the Manufacture of Medicines and Medical Supplies (Samarra) for their assistance.
CONFLICT OF INTERESTS
The author declares no conflict of interests.
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No. 14–55397
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
___________________________________________________
ARTHUR MERKIN AND JAMES SMITH, Plaintiffs-Appellees
v.
VONAGE AMERICA, INC., Defendant-Appellant.
___________________________________________________
Appeal from an Order of the United States District Court for the Central District of California, Case No. 2:13-CV-08026
___________________________________________________
AMICUS CURIAE BRIEF OF NATIONAL ASSOCIATION OF CONSUMER ADVOCATES IN SUPPORT OF PLAINTIFFS-APPELLEES' PETITION FOR REHEARING EN BANC
___________________________________________________
Stephen Gardner Stanley Law Group 6116 N. Central Expressway, Ste. 1500 Dallas, TX 75206
Telephone: (214) 443-4300
Facsimile: (214) 443-0358
email@example.com
James C. Sturdevant The Sturdevant Law Firm The Dividend Building 354 Pine Street, Fourth Floor San Francisco, CA 94104
Telephone: (415) 477-2410
Facsimile: (415) 477-2420
David H. Seligman Towards Justice 1535 High Street, Ste. 300 Denver, CO 80218
Telephone: (720) 248-8426
Facsimile: (303) 957-2289 firstname.lastname@example.org
Counsel for Amicus Curiae National Association of Consumer Advocates
CORPORATE DISCLOSURE STATEMENT
Pursuant to Federal Rule of Appellate Procedure 26.1, the National Association of Consumer Advocates states that it has no parent corporation and that there is no publicly held corporation that owns 10% or more of its stock.
TABLE OF CONTENTS
CONCLUSION ......................................................................................................... 9
TABLE OF AUTHORITIES
Case: 14-55397, 03/31/2016, ID: 9923473, DktEntry: 65, Page 5 of 20
STATEMENT OF AMICUS CURIAE
The National Association of Consumer Advocates ("NACA") is a nationwide non-profit corporation whose over 1,000 members are private, publicsector, legal services and non-profit lawyers, law professors, and law students, whose primary practices or interests involve consumer rights and protection. NACA is dedicated to furthering the effective and ethical representation of consumers and to serving as a voice for its members and for consumers in an ongoing effort to curb deceptive and exploitative business practices. NACA has furthered this interest in part by appearing as amicus curiae in support of consumer interests in federal and state courts throughout the United States. NACA has appeared as amicus curiae in support of consumer interests in many California courts, including Loeffler v. Target Corp., 58 Cal. 4th 1081 (2014); Kwikset Corp. v. Superior Court, 51 Cal. 4th 310 (2011); Californians For Disability Rights v. Mervyn's, LLC, 39 Cal. 4th 223 (2006); Hood v. Santa Barbara Bank & Trust, 143 Cal. App. 4th 526 (2006); and Am. Int'l Indus. v. Superior Court, 72 Cal. App. 4th 1376 (ordered not to be officially published Oct. 20, 1999). 1 gh
1 Pursuant to Federal Rule of Appellate Procedure 29(c)(5), amicus affirms that no counsel for a party authored this brief in whole or in part and that no person other than amicus, its members, or its counsel has made any monetary contributions intended to fund the preparation or submission of this brief. All parties have consented to the filing of this brief.
SUMMARY OF THE ARGUMENT
For the reasons discussed in Plaintiffs-Appellees' petition for en banc review, this Court should reconsider the panel's decision in this case not only to correct its clear error but also to forestall any of the confusion that that decision might otherwise cause in this Circuit regarding preemption under the Federal Arbitration Act ("FAA"), 9 U.S.C. § 1, et seq..
NACA submits this amicus brief to highlight just how much of an outlier the panel's decision is. First , the panel's decision amounts to an implicit rejection of the well-established doctrine that arbitration agreements are unconscionable if they lack a "modicum of bilaterality." California courts have long held that, like other exceptionally one-sided contract provisions, arbitration provisions that permit the drafter to choose whether to arbitrate or go to court but require consumers or employees to arbitrate all their claims are unconscionably one-sided. The panel decision would overrule years of California precedent.
Second , the panel's conclusion that the mutuality doctrine is preempted because it "appl[ies] only to arbitration or derive[s] [its] meaning from the fact that an agreement to arbitrate is in issue," Merkin v. Vonage Am., Inc., No. 14-55397, 2016 WL 775620, at *1 (9th Cir. Feb. 29, 2016), relies on an overly simplistic understanding of California law and FAA preemption—one that this Court has already rejected. Consistent with Judge Wardlaw's carefully drawn dissent, the full
Court should clarify that the FAA means what it says: Arbitration agreements are unenforceable if they conflict with principles "as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. It is a generally-applicable principle of California contract law that a contract is unenforceable if it is unreasonably onesided. It therefore does not conflict with the FAA to deny enforcement of an arbitration clause on that basis.
ARGUMENT
I. CALIFORNIA'S DOCTRINE AGAINST UNCONSCIONABLY ONESIDED CONTRACTS IS A WELL-ESTABLISHED, GENERALLY APPLICABLE PRINCIPLE OF CONTRACT LAW.
The mutuality doctrine is by now well defined: In the "absence of 'justification,'" contracts that have "'overly harsh' or 'one-sided' results" are substantively unconscionable. A & M Produce Co. v. FMC Corp., 135 Cal. App. 3d 473, 487 (Cal. Ct. App. 1982). One example of this kind of one-sided contract arises "[w]here the party with stronger bargaining power has restricted the weaker party to the arbitral forum, but reserved for itself the ability to seek redress in either an arbitral or judicial forum." Nagrampa v. MailCoups, Inc., 469 F.3d 1257, 1285 (9th Cir. 2006) (en banc). That is precisely the doctrine that Plaintiffs raised to defend against enforcement of the arbitration clause here and precisely the doctrine that the panel found preempted by the FAA.
The amicus brief filed by Public Justice sets out the number of ways in which the panel decision conflicts with precedent from state and federal courts around the country, including multiple decisions from this Court. The panel rejected this precedent without even citing to it, let alone carefully considering it. The panel's opinion thus creates a split not only between federal circuits but also between federal and state courts within this Circuit—federal courts bound by the panel's determination and state courts bound by the clear and careful precedent of their state supreme courts.
Also without citation or consideration, the panel opinion tosses aside multiple correct and carefully drawn California cases. California courts have long held that unreasonably one-sided contract terms arising from abuses in bargaining power are unenforceable. This generally-applicable contract doctrine did not arise in the context of arbitration, and it is not specific to arbitration. Indeed, the Uniform Commercial Code—indisputably a generally applicable source of contract law—itself defines the "basic test" of unconscionability as "whether the clauses involved are so one-sided as to be unconscionable." U.C.C. § 2-302, cmt. 1; accord Cal. Civ. Code § 1670.5, Leg. Cmt. 1 (California's unconscionability statute, which is identical to the Uniform Commercial Code).
California courts have repeatedly applied this test to all sorts of contracts— contracts for farm equipment, loans, checking accounts, used cars—none of which had anything to do with arbitration. See, e.g., Lona v. Citibank, N.A., 202 Cal. App. 4th 89 (2011); Donovan v. RRL Corp., 26 Cal. 4th 261 (2001); Ilkhchooyi v. Best, 37 Cal. App. 4th 395 (1995); Perdue v. Crocker Nat'l Bank, 38 Cal. 3d 913 (1985). For example, in Lona v. Citibank, the California Court of Appeal held that a jury could find that a loan contract with an "extreme disparity between the amount of the monthly loan payments and [the borrower's] income" was "overly harsh and one sided and thus substantively unconscionable." Lona, 202 Cal. App. 4th at 111.
In Donovan v. RRL Corp., the California Supreme Court rescinded an auto sales contract where a newspaper had mistakenly advertised a used car for sale well below the intended sale price. Donovan, 26 Cal. 4th at 266. The dealer's "honest mistake," the Court found, "resulted in an unfair, one-sided contract," in which the dealer would receive much less for the car than it was worth. Id. at 293. Such "one-sided results," the Court held, were "sufficient to establish unconscionability entitling [the dealer] to rescission" of the contract. Id. at 292.
In the same way California courts have held that loan contracts or car sales contracts are unconscionable if they are unfairly one-sided, so too they have held unfairly one-sided arbitration contracts unconscionable. 2 Under California law, a
2 See, e.g., Capili v. Finish Line, Inc., 116 F. Supp. 3d 1000, 1007 (N.D. Cal. 2015); Poublon v. Robinson Co., No. 2:12-CV-06654-CAS MA, 2015 WL 588515, at *5-6 (C.D. Cal. Jan. 12, 2015); ACORN v. Household Int'l, Inc., 211 F. Supp. 2d 1160 (N.D. Cal. 2002) (deeming arbitration agreement unconscionable in part
contract is not unconscionable solely because it results in unfair outcomes. Contracts, after all, allocate risks, and at the time a party seeks to enforce the contract, at least some of those risks will presumably have come to fruition. Rather, unconscionability doctrine turns on an "overly harsh allocation of risks or costs which is not justified by the circumstances under which the contract was made." Carboni v. Arrospide, 2 Cal. App. 4th 76, 83 (1991) (concluding that loan with 200% interest rate was unconscionable). Contracts where the drafter reserves the right to choose whether to go to court or arbitrate, but requires the other party to arbitrate exhibit such an "overly harsh" allocation of risks or costs." The California Supreme Court has explained:
[i]f the arbitration system established by the [drafter] is indeed fair, then [both parties] should be willing to submit claims to arbitration. Without reasonable justification for this lack of mutuality, arbitration appears less as a forum for neutral dispute resolution and more as a means of maximizing [drafter] advantage. Arbitration was not intended for this purpose.
Armendariz v. Found. Health Psychcare Servs., Inc., 24 Cal. 4th 83, 118 (2000).
(continued . . . )
because it required the consumer to submit all claims to arbitration but allowed the lender to pursue foreclosure proceedings outside of arbitration); O'Hare v. Mun. Res. Consultants, 107 Cal. App. 4th 267, 274 (2003) (arbitration agreement lacked "modicum of bilaterality" where it allowed employer to pursue injunctive and equitable relief against the employee in a public forum); Fitz v. NCR Corp., 118 Cal. App. 4th 702, 725 (2004).
For example, in Jarmillo v. JH Real Estate Partners, Inc., residential tenants brought claims against their landlords related to "water incursion and dangerous and unhealthful levels of moisture in walls and ceilings, mold, mold mycotoxins, airborne mold spores, fungus, and bacteria in the rental unit." 111 Cal. App. 4th 394, 397 (2003). The defendants invoked an arbitration requirement in their standard form lease that said that "any dispute between the parties relating to a claim for personal injury, directly or indirectly relating to, or arising from, the condition of the leased premises, or the apartment community, shall be resolved by arbitration conducted by the American Arbitration Association." Id. at 398 (internal quotation marks omitted). The contract also stated, however, that nothing in it "limited the landlord's rights in the event of a resident's breach or default under this agreement, including the landlord's right to bring an action for unlawful detainer." Id. The appellate court affirmed the trial court's denial of the defendant's motion to compel arbitration. The court noted that "the reality is that personal injury claims arising from the condition of the leased premises are largely, if not exclusively, tenant claims." Id. at 405. By denying tenants the right to go to court, but allowing the landlord the advantages of judicial procedure, the arbitration agreement lacked even the modicum of bilaterality required in an enforceable contract.
On the other hand, in Sanchez v. Valencia Holding Co., LLC, 61 Cal. 4th 899 (2015), the California Supreme Court rejected a consumer's argument that the arbitration clause in his auto-financing contract was unconscionable because it allowed the dealership to use self-help to repossess the car without going to arbitration, but required the car-buyer to arbitrate his claims against the dealer. The court recognized the principle that "arbitration provisions are unconscionable if they provide for the arbitration of claims most likely to be brought by the weaker party but exempt from arbitration claims most likely to be filed by the stronger party." Id. at 921. But the court rejected the consumer's argument because selfhelp repossession is authorized by statute and sought outside of litigation. Id. at 922.
Hewing to California unconscionability law requiring courts to closely scrutinize contracts to determine whether they are unreasonably one-sided in the circumstances presented, California courts have sometimes found arbitration clauses unconscionable when they seek to impose arbitration on a weaker party while allowing the stronger party to benefit from the judicial process. But California courts have also held that other arbitration clauses do not run afoul of that principle. In both kinds of cases, California courts have addressed the question carefully and thoughtfully and in accordance with the state's generally applicable contract law. The panel's opinion conflicts with this substantial and consistent precedent without citation.
II. THE PANEL ERRED IN CONCLUDING THAT THE FAA PROHIBITS CALIFORNIA FROM APPLYING ITS GENERALLY APPLICABLE DOCTRINE AGAINST ONE-SIDED CONTRACTS TO ARBITRATION AGREEMENTS.
The FAA provides that written agreements to arbitrate shall be enforceable "save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. To reconcile this "savings clause" with the protections that the FAA was intended to afford against "judicial hostility to arbitration agreements," Shearson/Am. Exp., Inc. v. McMahon, 482 U.S. 220, 225 (1987), the Supreme Court and this Court have described two FAA-based restrictions on courts' authority to deny enforcement of arbitration agreements: (1) courts must not treat arbitration agreements with disfavor relative to other agreements, see, e.g., DIRECTV, Inc. v. Imburgia, 136 S. Ct. 463, 468 (2015) (arbitration clauses must be placed on "equal footing with other contracts" (internal quotation marks omitted)), or arbitration with disfavor relative to resolution in a public forum, see, e.g, Marmet Health Care Ctr., 132 S. Ct. 1201 (2013); Ferguson v. Corinthian Colleges, Inc., 733 F.3d 928, 934 (9th Cir. 2013) (state rule must not "prohibit[] outright arbitration of a particular type of claim"); and (2) courts must not employ generally applicable laws or rules of decision—meaning rules that do not on their face single out arbitration—to prohibit a fundamental attribute of arbitration.
Concepcion, 563 U.S. 333, 344 (2011); see also Smith v. Jem Grp., Inc., 737 F.3d 636, 641 (9th Cir. 2013).
There can be no argument that exempting certain claims from arbitration is a fundamental attribute of arbitration. And so the only way the mutuality doctrine can be preempted is if it disfavors arbitration agreements. It clearly does not.
First, as explained above, California law treats arbitration contracts the same as all other contracts: Egregiously one-sided contracts are unconscionable, regardless of whether or not they involve arbitration. The refusal to enforce an unconscionable arbitration contract no more takes its meaning from the fact that arbitration is involved than the refusal to enforce a loan contract with an unreasonably high interest rate takes it meaning from the fact that a loan is involved. Cf. Carboni, 2 Cal. App. 4th at 84 (concluding that 200% interest rate was substantively unconscionable because it was one-sided without justification).
In other words, the mutuality doctrine is not preempted where courts' articulation of it involves mention of arbitration. See Chavarria v. Ralphs Grocery Co., 733 F.3d 916, 927 (9th Cir. 2013). Under California law, if a contract is unfairly one-sided, it is unconscionable—regardless of whether that contract is an arbitration contract or not. A&M Produce, 186 Cal. Rptr. at 487. If this Court were to "immunize" arbitration clauses from the general principle that contracts may not be unfairly one-sided, it would "elevate" arbitration contracts over other contracts, which would be "inconsistent with the" FAA's mandate that arbitration contracts not be treated differently than other agreements. Prima Paint Corp. v. Flood & Conklin Mfg. Co., 388 U.S. 395, 404 n.12 (1967).
Second, California law does not impermissibly assume that arbitration is inferior to litigation. While the vast majority of courts have held that the FAA does not preempt state unconscionable doctrines like California's, 3 a single court of appeals—the Tenth Circuit—has held that state law holding asymmetrical arbitration contracts unconscionable may impermissibly depend on the view that arbitration is inferior to litigation. THI of New Mexico at Hobbs Ctr., LLC v. Patton, 741 F.3d 1162, 1170 (10th Cir. 2014). The panel decision in this case did not reference THI, nor did it suggest that the reason for its ruling was that it believed California law impermissibly depended on the view that arbitration is inferior to litigation. Nor could it: California law does not, in fact, depend on such a view.
As the dissent in this case points out, there is no need to assume that arbitration is inferior to conclude that a contract is unfairly one-sided if it reserves
3 See, e.g., Noohi v. Toll Bros., 708 F.3d 599, 612-13 (4th Cir. 2013); Glob. Client Sols., LLC v. Ossello, No. DA 15-0301, 2016 WL 825140, at *9 (Mont. Mar. 2, 2016); Berent v. CMH Homes, Inc., 466 S.W.3d 740, 752 (Tenn. 2015); Alltel Corp. v. Rosenow, 2014 Ark. 375, 11 (2014); Brewer v. Missouri Title Loans, 364 S.W.3d 486, 495 (Mo. 2012); Dan Ryan Builders, Inc. v. Nelson, 230 W. Va. 281, 291 (2012);
to just one party the right to choose the forum for its most likely claims, while giving that party the right to unilaterally require the other party to arbitrate her claims. This principle assumes not that litigation is better than arbitration but rather that it is different than arbitration—that each form of dispute resolution has advantages and disadvantages. 4 That premise is entirely consistent with the FAA.
Indeed, the United States Supreme Court itself has repeatedly acknowledged the trade-offs of arbitration. See, e.g., Concepcion, 56 U.S. at 344. By agreeing to arbitration, the Court has explained, parties "forgo the procedural rigor and appellate review of the courts" in favor of the "lower costs, greater efficiency and speed, and the ability to choose expert adjudicators" provided by arbitration. Id. While this trade-off is often worthwhile, there are also circumstances in which the benefits of informal, expeditious dispute resolution are not worth the costs of giving up the procedural safeguards of the court system. See id. (explaining that "[t]he absence of multilayered review makes it more likely that errors will go uncorrected" in arbitration than in court, and therefore a corporation is likely to favor arbitration for individual claims against it, but may be unwilling to accept the risk of error for larger class-wide claims). It does not discriminate against
4 Large merchants and lenders have themselves recognized this fact. System Slowdown: Can Arbitration Be Fixed?, Inside Counsel, May 2007, at 50–58, available at http://accord-adr.com/Arbitration%20Slowdown-Inside%20CounselMay%2007.pdf.
arbitration to say that it is unfair for a company to reserve for itself—but not its consumers—the right to choose when to make these trade-offs. 5
This is precisely the analysis that California courts have applied when concluding that mutuality doctrine is not preempted by the FAA. In Malone v. Superior Court, for example, the California Court of Appeal explicitly rejected the idea that state law holding one-sided arbitration contracts are unconscionable depends on the view that arbitration is inferior to litigation. Malone v. Superior Court, 226 Cal. App. 4th 1551 (2014). That idea, the court explained, is "too simplistic," id.:
While we would not, as a general rule, take issue with a forum selection clause choosing Alaska courts to resolve disputes under a contract, we would look with skepticism at a clause providing that a California employee's claims against its Alaskan employer must be brought in Alaska court, while the employer's claims against its employee must be brought in California court. That the two fora are courts of equal dignity cannot be denied; however, the application of the clause would clearly be unfair to a California employee who cannot easily go to a distant forum to pursue his or her claims. Similarly, while arbitration is not inferior to litigation in the abstract, an agreement with an arbitration clause that does not operate bilaterally may be unfair in its application.
Id. at 1568 n. 15; see also Carlson v. Home Team Pest Def., Inc., 239 Cal. App. 4th 619, 638 (2015).
5 Even the Tenth Circuit has recognized that a choice of whether to arbitrate or litigate is preferable to being required to arbitrate (or, for that matter, litigate) in all cases. See THI, 741 F.3d at 1170.
Finally, as Judge Wardlaw wrote in dissent here,
The FAA rejects the view that arbitration is inherently inferior to litigation. However, a choice between arbitration and litigation is superior to arbitration with no alternative. That is because choice yields strategic flexibility—here, the opportunity to assess the circumstances of any particular dispute and determine which forum would be most advantageous. This is a valuable choice that Vonage, as the drafter of this adhesive agreement, reserved for itself but denied its customers. The unfairness of a provision that greatly favors the party with all the bargaining power is not unique to arbitration, and the FAA does not require its enforcement.
Merkin, 2016 WL 775620, at *3 (Wardlaw, J. dissenting) (internal citations omitted). The Court should revisit the panel's determination and adopt Judge Wardlaw's reasoning.
CONCLUSION
For these reasons, the Court should grant en banc review.
Respectfully submitted,
Dated: March 31, 2016
/s/ Stephen Gardner Stephen Gardner Attorney for Amicus Curiae National Association of Consumer Advocates
CERTIFICATE OF COMPLIANCE
(Fed. R. App. P. 32(a) & 9th Cir. Rule 32-l)
This brief complies with the type-volume limitation of Federal Rule of
Appellate Procedure 32(a) because this brief contains less than 4200 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure
32(a)(7)(B)(iii).
This brief complies with the typeface requirements of Federal Rule of
Appellate Procedure 32(a)(5), and the type style requirements of Federal Rule of
Appellate Procedure 32(a)(6) because this brief has been prepared in a proportionally spaced typeface using Microsoft Word 2010 word processing
program, a 14-point font size, and the Times New Roman type style.
Respectfully submitted,
Dated: March 31, 2016
/s/ Stephen Gardner
Attorney for Amicus Curiae
Stephen Gardner
National Association of Consumer Advocates
15
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SHORT COMMUNICATION
Spectrographic analysis points to source–filter coupling in rutting roars of Iberian red deer
Ilya Volodin & Elena Volodina & Roland Frey & Juan Carranza & Jerónimo Torres-Porras
Received: 11 May 2012 /Revised: 8 August 2012 /Accepted: 23 August 2012 # Springer-Verlag and ISPA 2012
Abstract Source–filter coupling is the rarest acoustic phenomenon not only in Iberian red deer, but in any mammal. In most mammals, sound production can be well described in the framework of source–filter theory. The vocal output is the result of combined work of the larynx (the source) and of the supralaryngeal vocal tract (the filter). The source–filter theory suggests the independence of source and filter. Thus, vocal tract filtering should not affect the fundamental frequency (f0) of the sound created in the larynx. Spectrographically, the source is mostly characterized by the f0 and its harmonics, while the filter by the vocal tract resonances, i.e., formant frequencies. Nevertheless, a non-independent (coupled) source and filter can be proposed when the vocal folds start oscillating at one of the formant frequencies. Coupling between source and filter has been found in human singers and predicted for red deer Cervus elaphus by a computer modeling approach. This study describes different modes of phonation in a natural bout of rutting calls of Iberian red deer Cervus elaphus hispanicus and the transition from a chaotic mode to a probable source–
* I. Volodin ()
Department of Vertebrate Zoology, Faculty of Biology, Lomonosov Moscow State University, Vorobievy Gory, 12/1, Moscow 119991, Russia e-mail: firstname.lastname@example.org
I. Volodin : E. Volodina Scientific Research Department, Moscow Zoo, B. Gruzinskaya, 1, Moscow 123242, Russia
R. Frey Leibniz Institute for Zoo and Wildlife Research, Alfred-Kowalke Str., 17, Berlin 10315, Germany
J. Carranza : J. Torres-Porras Cátedra de Recursos Cinegéticos y Piscícolas, Universidad de Córdoba, Córdoba 14071, Spain
filter coupling mode. This phenomenon might be involved in the production of extremely high-frequency bugles of North American and Asian subspecies of C. elaphus.
Keywords Vocalization . Source–filter theory . Mammal . Source–tract coupling . Cervus elaphus
Introduction
Source–filter coupling is apparently the rarest acoustic phenomenon not only in Iberian red deer, but in any mammal. Instructive spectrograms, illustrating this phenomenon in a non-human mammal, are not available to date. Most mammalian vocalizations are well described in the framework of the source–filter theory of voice production (Fant 1960; Taylor and Reby 2010). According to this theory, the fundamental frequency (f0) of mammalian vocalizations is generated by vibrations of the vocal folds in the larynx (the source). Subsequently, it is filtered by the supralaryngeal vocal tract, revealing formants representing the vocal tract resonances. The source–filter theory suggests the independence of source and filter; that is, vocal tract filtering should not affect the f0 of the sound created in the larynx (Fant 1960; Titze 1994; Taylor and Reby 2010). Some apparent departures from this theory (e.g., higher f0 in the oral than in the nasal calls) may result from a rotational movement of the thyroid cartilage at mouth opening, and thus do not contradict to the predictions of the theory (Efremova et al. 2011; Volodin et al. 2011).
Spectrographic analysis of mammalian vocalizations may provide insights on the involvement of source- and filterrelated effects in sound production (Reby and McComb 2003; Taylor and Reby 2010; Volodin et al. 2011) and also may help to reveal the existence of source–filter coupling (Titze et al. 2008). Vocal apparatus oscillations at one of the formant frequencies, like in a wind instrument, may be the result of source–filter coupling (Titze 2008). Modeling has
shown that source–filter coupling is possible in red deer Cervus elaphus (Titze and Riede 2010), but the phenomenon has not yet been observed in live animals. Earlier, close values of f0 and first formant were suggested as a mechanism facilitating the appearance of other acoustic nonlinear phenomena (Wilden et al. 1998), such as biphonation (Herzel and Reuter 1997; Mergell and Herzel 1997), subharmonics (Peters et al. 2004; Hatzikirou et al. 2006), frequency jumps, and chaos (Hatzikirou et al. 2006). The coincidence of fundamental and formant frequencies increases the call amplitude in human singers (Titze et al. 2008) and in songbirds (Riede et al. 2006; Riede and Suthers 2009).
The species C. elaphus originated in Middle Asia and then distributed in two opposite directions: to Siberia and further to North America, and to Europe (Mahmut et al. 2002; Ludt et al. 2004). The ancient Bactrian subspecies of red deer Cervus elaphus bactrianus lives in the center of origin. Common origin, rather recent evolutionary history, and existence of many subspecies within European, Asian, and American lineages of red deer show that C. elaphus may be considered in a broad sense as a continuum of subspecies and recent species (Mahmut et al. 2002; Ludt et al. 2004; Zachos and Hartl 2011).
In different parts of the distribution area, red deer stags produce rutting calls different in acoustic structure. European subspecies produce low-frequency roars (Reby and McComb 2003; Kidjo et al. 2008; Frey et al. 2012), whereas North American and Siberian subspecies mainly produce extremely high-frequency bugles (Struhsaker 1968; Feighny et al. 2006; Nikol'skii 2011). Middle Asian ancient Bactrian subspecies produce bugles and roars as well as biphonic rutting calls, comprising both low and high fundamental frequencies in their spectra (Nikol'skii 1975; Nikol'skii et al. 1979). Roars of European red deer may be subdivided into common roars with a clearly visible f0 and its harmonics, and harsh roars, where f0 is masked with deterministic chaos and subharmonics for most part of call duration (Reby and McComb 2003; Frey et al. 2012). The Fig. 1 represents male rutting calls of a few red deer subspecies, recorded by the authors either in the wild or in captivity.
Male red deer retract the larynx down to the sternum during their rutting calls (Fitch and Reby 2001; Feighny et al. 2006; Frey et al. 2012). This results in vocal tract elongation and a lowering of formants, which are clearly visible in spectrograms of the low-frequency roars of European red deer (Reby and McComb 2003; Kidjo et al. 2008). However, similar retraction of the larynx in high-frequency bugles of North American/ Asian subspecies does not reveal a clear formant structure (Feighny et al. 2006; Titze and Riede 2010; Nikol'skii 2011).
Despite very different patterns of rutting calls, larynges and vocal folds of European and North American/Asian red deer are very similar morphologically and potentially both capable of producing an f0 range of 60–1,200 Hz (Riede and Titze 2008; Titze and Riede 2010; Frey et al. 2012). The mechanisms underlying such great vocal variation among subspecies with basically the same larynx are poorly understood to date. Potentially, source – filter coupling may account, at least partially, for such vocal flexibility of red deer (Titze and Riede 2010 ).
Iberian red deer Cervus elaphus hispanicus is a relict subspecies of the Iberian refugium from where red deer recolonized Western Europe after the Late Pleistocene glacial maximum occurred 25,000–12,000 years ago (Zachos and Hartl 2011). Iberian stags produce relatively low-frequency roars, with average maximum f0 223 Hz and average mean f0 186 Hz (Frey et al. 2012). Among acoustic nonlinear phenomena, the subharmonics and deterministic chaos occur regularly in rutting calls of Iberian stags, but we never detected biphonation (Frey et al. 2012). This study documents and describes an unusual mode of vocal production in rutting roars of Iberian red deer, pointing to source–filter coupling.
Materials and methods
Audio recordings of 2,928 rutting roars were collected from about 75 free-ranging unmarked adult male Iberian red deer stags during September 2007 in Andalusia and Extremadura, Spain. These recordings were part of a combined study of the underlying anatomy, the vocal behavior and the acoustics of Iberian red deer male rutting calls (Frey et al. 2012). The distance of the animals to the microphone varied from 10 to 150 m. For the audio recordings (48 kHz, 16 bits), we used a Fostex Field Recorder FR–2LE (Fostex Company, Tokyo, Japan) and a Sennheiser MKH 70 P48 condenser directional microphone (Sennheiser, Wedemark, Germany). We analyzed one natural three-call bout from a wild Iberian red deer stag.
For creating spectrograms and acoustic measurements, we used Avisoft SASLab Pro software (Avisoft Bioacoustics, Berlin, Germany) and Praat DSP package (Boersma and Weenink 2009). Single Fast Fourier Transform (FFT) spectra (6.4 ms wide) were created with 5,000 Hz sampling frequency, Hamming window, FFT 1,024 points, frame 50%, and overlap 96.87%. For comparison with FFT spectra, linear predictive coding (LPC) spectra were created in 20-ms fragments around the same time points, using "To Formants (Burg)" command in Praat, window length 0.04 s, time step 0.01 s, maximum number of formants 8, maximum formant frequency 2,000 Hz. Peak formant values were extracted with "To Spectrum (slice)" command in Praat.
Results
The spectrogram in Fig. 2 visualizes a natural bout of three rutting roars of an Iberian red deer stag. The first call in this bout is a short common roar. The second call is a longer common roar. The third call is a harsh roar with insertion of an unusual acoustic phenomenon.
For the second call of the bout, the FFTspectra at 1.5 and 2.2 s show clear fundamental frequency (f0) and its integer multiple harmonics (Fig. 3). The f0 at the beginning of this call (at 1.5 s) comprises 174 Hz and increases to the middle of the call (at 2.2 s) up to 239 Hz. The acoustic energy is distributed non-uniformly over the spectrum, showing local maxima of about 0.6 and 1.4 kHz and local minima of about 0.3 and 1.0 kHz.
In the spectrogram of the third call, the onset segment also exhibits the f0 with harmonics (Fig. 2). The FFT spectrum at 4.0 s also clearly reveals the f0 (186 Hz) and its integer multiple harmonics (Fig. 3). This spectrum matches those created for the onset part of the second call (at 1.5 s) and demonstrates approximately the same distribution of local power maxima and minima (Fig. 3). The onset segment of the third call also shows the lowering formants (Figs. 2 and 4), similarly to the onset part of the second call (Fig. 2 ). The next segment of the third call represents deterministic chaos, revealing formants, especially third, fourth, fifth, and sixth (F3 – F6, Fig. 4 ). Formants at this segment are nearly horizontal and are lowering very steadily. The FFT spectrum at 5.0 s does not reveal harmonic structure (Fig. 3 ). However, the four well-visible spectral peaks correspond to central values of the four formants (F3 – F6) that confirmed by the LPC spectrum, created at the same time point (Fig. 3 , Table 1 ).
At 5.1 s, the segment of deterministic chaos transfers abruptly into the harmonic segment with f0 and its integer multiple harmonics (Fig. 2). The new fundamental frequency has much higher value (728 Hz at 5.4 s) than maximum f0 values achieved in the centrum of the second call of the bout (Figs. 2 and 3). At the same time, the new f0 is very close in value to the preceding value of the fourth formant
(723 Hz at 5.0 s). The spectrogram shows that the frequency of the fourth formant transits smoothly into the fundamental frequency band (Fig. 4). The waveform above the spectrogram shows, that at the point of the transition the call amplitude increases strongly (Fig. 2 ). As a result, the sound changes from harsh roar to siren.
The final segment of the call is represented by deterministic chaos (Figs. 2 and 4), and the FFT spectrum at 6.0 s does not reveal harmonic structure (Fig. 3). Spectral peaks match formant frequencies (Fig. 3) whose values are close to those of formants in the preceding segment with deterministic chaos (Table 1). The high fundamental frequency transits into the frequency of the fourth formant, whereas the harmonics of the high fundamental frequency stop abruptly and do not continue along the final segment of the calls (Fig. 4). This moment corresponds to the abrupt decrease of the call amplitude (Fig. 2).
Discussion
This study describes different modes of phonation in a natural bout of rutting calls of Iberian red deer. The second call is produced by a normal mode of phonation (Wilden et al. 1998), in which the effects of the sound source and the vocal tract are independent from each other (Fant 1960; Taylor and Reby 2010). The spectrogram of the second call clearly depicts the f0 and its harmonics, resulting from the
oscillation of the vocal folds within the larynx (sound source), and the descending formants at the beginning of the call, resulting from an elongation of the vocal tract effected by larynx retraction during the roar. The third call starts with the f0 and its harmonics followed by deterministic chaos with clearly accented formants. Then the fourth formant continues into the new high fundamental frequency band, creating own harmonics. At the point where the sound source starts producing the fundamental frequency at the frequency of the fourth formant, the sound amplitude of the call increases strongly, suggesting a resonance effect, as for a wind instrument. As a result, the sound changes from harsh roar to siren. The final part of the call again represents deterministic chaos, returning to the initial formants of the roar. Thus, the third call shows the transition from a chaotic mode to a probable source–filter coupling mode (Titze 2008), in which the vocal folds start to vibrate on the frequency of the fourth vocal tract formant.
Table 1 Comparison of values of spectral peaks from FFT and LPC spectra, taken in the same time points (5.0 and 6.0 s) along the spectrogram on the Fig. 2
Numbers of formants, corresponding to these peaks, are given in parentheses within cells
The third call with the probable source–filter coupling has been produced immediately after the common roars, showing usual vocal pattern for Iberian red deer. This suggests that the caller was a healthy stag with normal vocal function, i.e., capable also of normal vocal production. However, source– filter coupling was a rare acoustic phenomenon in Iberian red deer, as it was found in less than 0.1% of the rutting roars compared to, e.g., deterministic chaos, found in more than 10% of roars (Frey et al. 2012).
The new high fundamental frequency of 728 Hz of the siren fragment of the third call corresponded to the fourth formant of the preceding harsh part of the same roar (Fig. 2). Also, it approximately corresponded to the average value of the fourth formant (744 Hz), measured for this sample of rutting roars of male Iberian red deer (Frey et al. 2012). The f0 value of 728 Hz was substantially higher than the average maximum f0 values, found in the roars of Iberian stags (223 Hz, Frey et al. 2012) or in any European subspecies of red deer: 52 Hz in Cervus elaphus corsicanus (Kidjo et al. 2008) and 137 Hz in Cervus elaphus scoticus (Reby and McComb 2003).
Maximum f0 values of roars recorded at the study site never exceeded 338 Hz (Frey et al. 2012), therefore there is no reason to expect that it was an occasional increase of f0 of the source up to 728 Hz. Also, the observed mode of production could not be a true whistle phenomenon (a vortex-shedding obstruction in the vocal tract), as the true whistle harmonics of the fundamental frequency are poorly visible in the call spectrum. However, the siren call part clearly shows harmonics, suggesting against the possibility that the sound is a whistle. Thus, the source–filter coupling (Titze 2008) seems most plausible explanation for production mode of the siren call part in Iberian red deer.
At the same time, the f0 value of 728 Hz, achieved due to source–filter coupling in an Iberian stag in this study, was substantially lower than the f0 of the bugles reported for North American and Asian subspecies, from 1,000 to over 2,000 Hz (Struhsaker 1968; Feighny et al. 2006; Riede and Titze 2008; Titze and Riede 2010; Nikol'skii 2011). In bugles, harmonics of this fundamental frequency are spaced respectively by 1,000 to over 2,000 Hz, whereas formants of red deer stags are spaced four times more closely (Fitch and Reby 2001; Reby and McComb 2003; Frey et al. 2012). Formants only increase the energy, already presented in call spectra. They are invisible in bugles, as most of them fall between harmonics, where the acoustic energy is lacking, whereas some of them fall on the harmonics, but are undistinguishable from them. Thus, it is unclear whether the bugle fundamental frequency coincides with one of formants or not, without alternating between coupling and non-coupling. This could be the reason, why source–filter coupling has not yet been found in bugling deer.
Nevertheless, we may hypothesize that source–filter coupling can play some role in production of extremely highfrequency bugles of these subspecies (Feighny et al. 2006; Titze and Riede 2010; Nikol'skii 2011; see also Fig. 1). As the larynx retraction inevitably changes the resonance characteristics of the vocal tract, the deer should be capable of adjusting to which formant of the call the f0 will be coupled. This would suggest a different function of larynx retraction in the production of high-frequency bugles compared to the low-frequency roars by rutting stags. In roars, retraction of the larynx accents the lowering formants assumed to provide acoustic cues to male body size (Fitch and Reby 2001; Fitch and Hauser 2002; Reby and McComb 2003). In bugles, formants are not accented because of widely spaced harmonics, but retraction of the larynx nevertheless shortens the distance between neighboring formants, thereby facilitating the tuning of the f0 of the source to the resonance frequencies of the vocal tract.
The unusual vocalization found in this study gives insight into the bugling of red deer. Potentially, a vocal fold of 3 cm long, as in American stags, can be damaged or even broken when producing calls higher 1,000 Hz (Riede and Titze 2008). Source–filter coupling allows to avoid the traumatic tension of vocal folds, thus explaining how the extremely high-frequency and high-amplitude bugles can be produced without special histological adaptations (Titze and Riede 2010). However, in case if bugling is achieved by source–filter coupling, this acoustic phenomenon should be widespread rather than the rarest, at least for the North American/ Asian subspecies of C. elaphus.
Acknowledgments We would like to thank David Reby, Tobias Riede, and Hansjoerg Kunc for discussion and Robert Huber and the two anonymous reviewers for their kind and instructive comments. During our work, we adhered to the "Guidelines for the treatment of animals in behavioural research and teaching" (Anim. Behav., 2006, 71, 245–253) and to the laws of Spain, Germany, and the Russian Federation, the countries where the research was conducted. This study was supported by the Russian Foundation for Basic Research, grant 12-04-00260 (for IV and EV) and Spanish projects CGL2007-63594 and CGL2010-17163 (for JC and JT).
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The Solace of the Sojourn: Towards a Praxis-oriented Phenomenological Methodology and Ethics of Deep Travel in Martin Heidegger's Sojourns
Andrew Urie
Introduction
Martin Heidegger's little-read travel journal, Sojourns (1962), is a literary-philosophical gem that yields surprisingly fruitful insights into our contemporary era of neoliberal globalization via its implicit exploration of the complex interconnections between travel, phenomenology, and ethics. As I demonstrate in this paper, Sojourns contains an implicit praxis-oriented phenomenological methodology and ethics of global travel that together gesture towards a coherent practice of "deep travel," which American literature scholar Cinzia Schiavini aptly defines as "a vertical movement in a closed space which starts from the surface of the land and goes backward in time, searching for the hidden social and cultural dynamics embedded in that [given] geographical context" (94).
Sociohistorical Context
Originally intended as a seventieth birthday gift for Heidegger's wife, Elfriede, Sojourns bears the following dedication: "To the mother, For her seventieth birthday, A token of Appreciation" (vi). Although penned in 1962 during Heidegger's first journey to Greece, the text would not be published until 1989, when it was released in Germany as Aufenthalte by the venerable Frankfurt am Main publishing house Vittorrio Klostermann. It would not be available in an official English edition until 2005, when it was published as Sojourns by SUNY Press via a translation by scholar John Panteleimon Manoussakis.
Sojourns opens with the following quote from the poem "Bread and Wine" (1801) by the German Romantic poet Friedrich Hölderlin (1770-1843), Heidegger's favourite poet:
But the thrones, where are they? Where are the temples, the vessels, Where to delight the gods, brim-full with nectar, the songs? Where, then, where do they shine, the oracles winged for far targets? Delphi's asleep, and where now is great fate to be heard?" (qtd. in Heidegger 1)
Here Hölderlin expresses a sense of longing for the poetically nourishing spirit of mythos that he feels is disappearing amidst Europe's post-Enlightenment culture of burgeoning modernity. In this sterile, technocratic modern age, the fecund and imaginative mythopoetic spirit of ancient Greece has waned and the wise oracle Delphi now slumbers.
As the socio-religious cultural critic Karen Armstrong notes in her book The Case for God (2009), it was during the time period ranging from the Renaissance to the dawn of the European Enlightenment that mythos became overtaken by modern conceptualizations of logos, 1 thereby paving the way for the birth of our contemporary Western society of sterile technocratic orthodoxy:
During the sixteenth and seventeenth centuries . . . Western people began to develop an entirely new kind of civilization, governed by scientific rationality and based on technology and capital investment. Logos achieved such spectacular results that myth was discredited and the scientific method was sought to be the only reliable means of attaining truth" (xv).
Informed by a utilitarian worldview, this sterile modern ethos has today bequeathed a vulgar "means to an end" psychosocial mentality, which political theorist Janice Gross Stein has defined as the "cult of efficiency" (Stein 3-4). As a prefatory poetic quote, the Hölderlin lines constitute a fitting introduction to Sojourns, in which Heidegger recounts his journey to Greece and his search for its mythic foundations. Similar to Hölderlin, who was concerned about the enervation of mythos in a post-Enlightenment era of burgeoning modernity, Heidegger worries about the enervated state of mythopoetics in a post-WWII world: "We, who are in greater need, in greater poverty for poetic thoughts, we need, perhaps, to pay a visit to the island of the islands, if only in order to set on its way the intimation that we have cherished for a long time" (4). Writing at the height of the Cold War when the world was divided between the opposing blocs of the capitalist West and the communist East, Heidegger undoubtedly recognized that both blocs were dominated by very similar forms of spiritual and mythopoetic stultification.
Heidegger and Globalization
Although he never employs the term "globalization" in any of his writings, Heidegger is today regarded as an early theorist of globalization. 2 As scholar Eduardo Mendieta observes in his essay "The Globalization of Ethics and the Ethics of Globalization" (2002), Heidegger "contributed to an incipient philosophy of globalization" via his 1938 essay, "The Age of the World Picture" (45), in which he outlines the dawn of a modern perspective that was witnessing the world become apprehended as a totalizing picture, which was subject to humankind's calculatory desires: "The fundamental event of the modern world is the conquest of the world as picture. . . . In such producing, man contends for the position in which he can be that particular being who gives the measure and draws up the guidelines for everything that is" (134). In his later 1950 essay, "The Thing," he further elaborated upon this protoglobalizing worldview by associating it with time-space compression, which is today regarded as one of the most salient features of techno-economic globalization: "All distances in time and space are shrinking. Man now reaches overnight, by plane, places which formerly took weeks and months of travel" (163). Writing before the birth of the Internet, he presciently recognized how this late modern worldview was being facilitated by a geo-unifying technological system that was giving birth to a pervasive superficial fascination with images: "Distant sites of the most ancient cultures are shown on film as if they stood this very moment amidst today's street traffic. . . . The peak of this abolition of every possibility of remoteness is reached by television, which will soon pervade and dominate the whole machinery of communication" ("The Thing" 163).
Intriguingly, Heidegger implies that this technologically facilitated process of geo-unification was not truly uniting the global community in humanist solidarity, but rather further alienating humankind from its rich cultural diversity via a uniform assimilatory matrix: "Everything gets lumped together into uniform distanceless. How? Is not this merging of everything into the distanceless more unearthly than everything bursting apart" ("The Thing" 164). In his most foreboding passage of "The Thing," he addressed the popular Cold War-era anxiety about nuclear conflict by implying that global nuclear annihilation might potentially give final form to the humanistic and spiritual annihilation that technological geo-unification was already accomplishing:
Man stares at what the explosion of the atom bomb could bring with it. He does not see that the atom bomb and its explosion are the mere final emission of what has long since taken place, has already happened. Not to mention the single hydrogen bomb, whose triggering, thought through to its utmost potential, might be enough to snuff out all life on earth. (164)
As Heidegger rhetorically questioned, "What is this helpless anxiety still waiting for, if the terrible has already happened?" ("The Thing" 164). In other words, if modern humanity had become so entrapped within a technocratic matrix of its own making that it was incapable of fathoming how it was the master of its own potential demise, then had its end not already been accomplished?
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With Sojourns, Heidegger is clearly building upon such previously articulated concerns about the relationship between globalization and technology, for his motivation in journeying to Greece emanates from an evident desire to escape the malaise of modernity: "Who is to show us the path? What is to give us a hint about the field that we seek? This field lies behind us, not before us. What is of necessity is to look back and reflect on that which an ancient memory has preserved for us and yet, through all the things that we think we know and we possess, remains distorted" (3). In a modern world that has for Heidegger lost its guiding spirit of humanity, Greece holds the potential ability to reinvigorate the mythic impetus that continues to exist as a sort of intimation in the minds of the poetically inclined: "We, who are in greater need, in greater poverty for poetic thoughts, we need perhaps, to pay a visit to the island of islands, if only in order to set on its way the intimation that we have cherished for a long time" (4).
For a man with such prescient insights into globalization, Heidegger did not travel much. As Heidegger scholar John Sallis notes in his "Foreword" to Sojourns, Heidegger "took himself to belong to the southwest German region where, except for the five year period in Marburg, he spent his entire life" (xiii). While noting that Heidegger did make "brief lecture trips to other German cities" as well as a "ten-day trip to Rome in 1935," Sallis observes that Heidegger mostly "avoided" travel and "actively discouraged others from undertaking extensive travels" (xiv). In journeying to Greece, Heidegger seems to have made a "great exception" (xiv), as he finally elected to travel there in 1962 when he was more than seventy years old. Although fascinated by Greek antiquity, Heidegger had "[f]or years hesitated about making such a trip" (xiv).
Accordingly, Heidegger is pursuing not just a visceral travel experience, but a mental one as well. In this regard, the title of his journal is a particularly apt one, for as the Oxford English Dictionary indicates, a sojourn denotes "[a] temporary stay at a place" ("sojourn, n."). In journeying to Greece, Heidegger thus seeks both a temporary physical stay there as well as a temporary mental immersion in the mythic essence of its ancient Dasein or being. 3 As we shall see, his journey ultimately reveals itself to be less a sojourn in one particular place than a series of sojourns in a variety of Greek locales, several of which afford him temporary mental sojourns via which he is able to experience fruitful phenomenological encounters with ancient Greek Dasein and its constitutive mythic elements.
As Sallis proceeds to note, Heidegger had hesitated to make this journey partly because he feared that the Greece of antiquity had been totally lost and partly because he feared that his presuppositions about Greece might not correspond to the reality he encountered:
Heidegger's hesitation had to do partly with his doubts about modern Greece, his doubts as to whether the Greece of today could still reveal anything of the Greece of antiquity. Yet there was also, as he confesses, a deeper doubt: he was concerned that the concrete revelation of Greek antiquity . . . might prove at odds with what – in relation to Greek antiquity – Hölderlin had poetized and he had attempted to think. (xv)
To his credit, Heidegger is quite candid in acknowledging his personal doubts. As he notes, the proposal of a journey to Greece was met with initial hesitation on his behalf:
That proposal was followed, of course, by a long hesitation due to the fear of disappointment: the Greece of today could prevent the Greece of antiquity, and what was proper to it, from coming to light. But also a hesitation that stems from the doubts that the thought dedicated to the land of the flown gods was nothing but a mere invention and thus the way of thinking (Denkweg) might be proved to be an errant way (Irrweg). (4-5)
Heidegger's account of his initial philosophical hesitation is here most interesting, as it clearly relates to the unique form of hermeneutic phenomenology that he employs throughout his journey.
As popular culture scholar Ueli Gyr notes in "The History of Tourism: Structures on the Path to Modernity" (2010), the dawn of the 1960s had heralded the massive expansion of European tourism:
Indeed, in searching for traces of Greece's ancient Dasein, Heidegger neither relies solely on his rationalist presuppositions about Greece nor argues that the visceral or empirical experience of traveling there is enough to allow for the discovery he seeks. Instead, he seems to fuse rationalism and empiricism in relation to mental attunement, thereby developing a unique form of hermeneutic phenomenology that might grant him a psychogeographic traveling experience via which he can gain sojourning access to Greece's originary culture. In this respect, he is not concerned with the modernized Greece that is present but rather the mythos-dominated Greece that is absent. Consequently, he is faced with the prospect of seeking out buried psychogeographic fragments of insight in modern Greece that might allow him to experience the call of its ancient Dasein: [W]hat matters is not us and our experience of Greece, but Greece itself" (9).
The apex of European tourism began in the 1960s: in response to the economic situations and strategic innovations in the market economy, commercial tour operators and travel companies transformed the nature of competition through increasingly cheaper offers, propelling it in the direction of mass tourism, introducing new destinations and modes of holidaying. (Gyr)
Deeply concerned about the potentially distortive psychosocial effects of this then burgeoning tourist industry, Heidegger associates the "unthoughtful onslaught of tourism" with the manifestation of an "alien power [that] enforces its own commands and regulations" (55). In this respect, he seems to be implicitly channeling his theory of "Ge-Stell" or "enframing," which Manoussakis succinctly defines as follows in his "Translator's Notes": "It [GeStell] has been rendered into English as 'im-position,' 'en-framing,' and 'framework;' it indicates a certain kind of calculative thinking that deprives things from their possibilities by not letting them appear (as they are) but instead pre-establishing their functionality" (66).
When Heidegger subsequently turns his meditative attention to modern Greece, he explicitly ponders whether it has also been enframed or whether it can still "speak" its ancient cultural Dasein: "Can Greece still 'speak' what is proper to it and claim us, the people of today, as listeners to its language, we, the people of an age whose world is throughout pervaded by the force and artificiality of the ramifications of the enframing (Ge-Stell)?" (10). In his subsequent travels throughout the region, he is often disappointed with what he finds. Upon arriving in Olympia, for example, he discovers a "plain village disfigured by the unfinished new buildings [to become] hotels for the American tourists" (12). Further elucidating his concept of enframing, Heidegger reflects on how the Museum of Olympia distorts the cultural essence of its various artifacts by presenting them for modern visual consumption, thereby robbing them of their mythic power:
In reflecting on his stay in Venice during the early stages of his journey to Greece, Heidegger alludes to this process of enframing when he notes how Venice has been deterritorialized of its historic spirit via the reterritorializing ethos of consumerist-imbued modernity: "It has become an object of historiography, attractive scenery for confused novelists, the playground for international conferences and exhibitions, loot for the tourist industry to squander" (5). In essence, the tourism industry has enframed Venice within the distortive cultural currents of a modernity that denies this historic city the opportunity of expressing the traces of its historic being: "Aged was everything and yet not exactly old; everything belonged to the past and yet not a past that still continues and gathers itself into something remaining so it can give itself anew to those who await it" (6).
At moments a chasm was opened between the act of dedication and the exhibits; the latter were placed in accordance with the contemporary artistic intentions, but, at the same time, were out of place; caught in themselves as they were, they became subjected to the machinations of the industrial era – they remain unable to show even what is proper to themselves to this world, let alone to indicate the paths of its transformation. (17)
In subsequently departing Olympia, the fabled home of Greece's mythic Gods, Heidegger concludes that while the "Greek world" can still speak "in an immediate way through the sculptures," the fact that these sculptures are housed in a museum ultimately negates the possibility of a true sojourn from being granted: [T]he region of Olympia did not yet set free the Greek element of the land, of its sea and its sky" (18-19).
To be sure, our contemporary "cosmopolitics" is defined by a form of shallow anomic wanderlust, which is epitomized by the popular Internet meme that reads, "Travel. As much as you can. As far as you can. As long as you can. Life's not meant to be lived in one place" ("Travel"). By envisioning the world as a sort of global amusement park in which "new" and "unique" experiences can be constantly sought out and consumed, today's generally privileged global travelers remain ignorant of how their wanderlust powers the very system of cultural homogenization from which they seek to escape. An excellent example of this phenomenon can be found in the current circumstances
Amidst our technologically interwoven Web 3.0 era of twenty-first-century globalization, Heidegger's concerns about the process of enframing seem more relevant than ever. What Heidegger is addressing in Sojourns is not merely the enframing of ancient Greece, but also the enframing of the international community itself: "What for us today is called world is the inestimable entanglement of a technological apparatus of information that confronted the unscathed and took her place, while the function of the world became accessible and tractable only by calculation" (35). As modern logos now systematically enframes our global community within a unifying neoliberal apparatus that systematically eradicates our humanity and positions us as drone-like knowledge consumers, we are in more need of mythos than ever before. To quote biologist and cultural critic E.O. Wilson, "We are drowning in information, while starving for wisdom" (Wilson 294).
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surrounding the ruins of the once sacred Inca citadel of Machu Picchu in Peru, which are now suffering from devastating erosion caused by the yearly influx of tourists to the site. Despite UNESCO's recent calls for Peru's government to implement a public use plan to mitigate the devastation to Machu Picchu and its surrounding area, the global influx of tourists to the site had as of 2014 surged to nearly 1.2 million visitors per year ("Drastic new rules"). One can only speculate that this rapacious touristic desire has been fueled by a hypocritical desire to visually consume Machu Picchu's ruins before they are ultimately destroyed and the seemingly inevitable commemorative simulatory theme park is erected on their once sacred grounds.
Heidegger seems to have recognized the emergence of this commercialized wanderlust as early as 1962, for in Sojourns, he describes the dawn of a globalized era in which "technology and industry" are enabling people to feel everywhere at home while also paradoxically inculcating an insatiable desire for new experiences via travel:
In specific reference to Greece, we might note how this contemporary wanderlust and its transformative modernizing currents have affected Athens's fabled Acropolis site, which contains many historic buildings, the most notable of which is the Parthenon. As we shall see, Heidegger's experience of visiting the Parthenon proves to be of significance in his quest to attain a pure sojourning experience in Greece. Yet while the Acropolis was once a sacred region, it is currently in danger of being overshadowed and obscured by the construction of two ten-story buildings that are slated for construction in Athens, which is today a trendy global hotspot. As noted in a February 22, 2009 Neos Kosmos newspaper article entitled "Petition launched to stop new building projects from 'boxing' in the Acropolis," the decision to build these two structures has enraged local residents. As Athens's current mayor, Kostas Bakoyannis, notes in the article, "The Acropolis belongs to everyone. . .. Therefore we have to respect it. We cannot allow urban monstrosities to pop up around it and cast their own shadows upon its light."
What if, then, this groundless "homeness," secured only by means of technology and industry, abandons every claim to a home by being contented with the desert-like expansion of traveling? As a consequence, even this question could cease to be of interest, because the concept of "content" would have been cancelled out by the supply of an always-increasing demand for new things. (37)
In essence, Heidegger here schematicizes the inaugural phase of the shallow "unity in diversity" rhetoric that now defines neoliberal globalization, which glibly champions the novelty of superficial "diversity" while simultaneously obfuscating the techno-capitalistic uniformity that increasingly engulfs our world's formerly differentiated countries. By enframing the world in this manner, we are fetishizing the most trivial forms of cultural difference while altogether ignoring how a unifying dogma of techno-capitalistic efficiency is exterminating the unique cultural mythopoetics that once granted individual nations their own distinct forms of Dasein.
In reading Sojourns today, one gets a sense of how Heidegger's insights into his journey constitute a sort of prologue to our global present. Writing roughly five years before the French intellectual Guy Debord would publish his landmark Society of the Spectacle (1967), which chronicles the rise of a Western consumer society in which human relationships were becoming increasingly "mediated by images" (Debord 1.4, 12), Heidegger associates the touristic zeal for travel with a superficial desire for visual consumption:
The annoyance with the crowds was not that they blocked the ways and obstructed access to different places. What was much more bothersome was their tourist's zeal, their toing and froing, in which one was, without being aware, included, as it threatened to degrade what was just now the element of our experience into an object read-at-hand for the viewer. (42)
In subsequently reflecting on the crowd that gathers in the once sacred region of Delphi, Heidegger alludes to how tourists practice a form of superficial image consumption that seems entirely divorced from any sense of an attempt to appreciate the mythic currents that once defined the region: "The throw their memories in the technically produced picture. They abandon without clue the feast of thinking that they ignore" (54).
One can only imagine what Heidegger would make of our contemporary Web 3.0 world, in which travel-hungry masses use Facebook to exchange images of foreign locales like trading cards. In our wired global society, travel becomes a game of crass one-upmanship to outdo one's fellow "cosmopolitans" by visually documenting one's latest "exotic" foreign escapade for Internet consumption. What is increasingly lost in this shallow touristic process, however, is the possibility of a deep phenomenological sojourn that might provide a respite from neoliberal technocapitalism and its mythos-exterminating dogma. While Hans Holbein would caution against envisioning the world as a mere playground for human desire via his painting The Ambassadors (1533), which brilliantly juxtaposes the Renaissance impetus for global exploration against an anamorphic vanitas image of a skull, such an enlightened
worldview seems unimaginable in our current epoch. Indeed, while Heidegger's journey to Greece was born of his desire to pursue a meditative confrontation with history that naturally entailed that he accept the finite nature of his existence, the shallow restlessness of today's global travelers seemingly emanates from a Thanatophobic angst on their behalf. Amusingly, this angst is insightfully conveyed in the opening scene of the 2009 film Up in the Air, in which the film's perpetually traveling corporate protagonist, Ryan Bingham (George Clooney), delivers a glib motivational talk to a rapt audience of "fellow travelers,"noting, "Make no mistake, moving is living. . . . The slower we move, the faster we die."
Hermeneutic Phenomenology and Deep Travel
Yet if Sojourns constitutes an insightful critique of globalization, it also functions as a praxis-oriented schematic for a form of phenomenologically engaged deep travel that holds out the possibility of a sojourn from modernity. By having first engaged in a deep intellectual exploration of Greece, Heidegger then makes his empirical-experiential trip there. What results is a psychogeographic journey via which he seeks out gaps within the grid of modernity that might allow him sojourn-like moments of access to the remaining traces of ancient Greek Dasein that he is able to phenomenologically intuit.
This somewhat mystical approach leads Heidegger to an unexpected insight into the very historical essence of Greece. The beginning of this insight is first sparked when he visits the island of Crete and discovers, to his surprise, that it "encloses a strange, pre-Greek world" (22) that manifests itself in the "Egyptian-oriental essence" (23) of the palace of Knossos at Herakleion: "Everything is focused on the luxurious, on adornment and embellishment, from the large frescoes to the insignificant utensils of everyday life" (23). Clearly, Heidegger is astute in this recognition, for it is today widely recognized that ancient Greece was in indebted to intercultural dialogue with Egypt, for as Robert Garland notes in his book Ancient Greece: Everyday Life in the Birthplace of Western Civilization (2008),
By claiming to be the oldest people on the face of the earth, the Greeks were able to [misguidedly] feed their sense of national pride and to claim special status among the other people they encountered, although it is fair to state as well that educated Greeks, like the historian Herodotus, were open and forthright in acknowledging the debt of Greek culture to other, older cultures, notably that of Egypt (1-2).
Intrigued by what he observes at Herakleion, Heidegger ponders whether the palace's luxurious allure constitutes mere superficial appeal or the trace of a deeply buried history: "And yet, what shines in this amazing shine? Is the question not fitting? Could it be that what shines in the shine is only the shine itself and therefore neither can conceal nor hide anything?" (24). Further ruminating on this experience upon arriving in Rhodes near the coast of Asia Minor, Heidegger pursues a form of deep recollective thinking that leads him to conclude that ancient Greek Dasein was the byproduct of an historic intercultural dialogue between East and West: [T]he confrontation [Auseinandersetzung] with the Asiatic element was for the Greek Dasein a fruitful necessity" (25).
For Heidegger, the realization of this pivotal East-West intercultural dialogue proves of immense importance. In his view, Greece's historic confrontation with the East holds the potential for an alternative theorization of globality:
This confrontation is for us today – in an entirely different way and to a greater extent – the decision about the destiny of Europe and what is called the Western world. Insofar, however, as the entire earth – and not only the earth anymore – is enclosed and penetrated by the radiation zones of modern technology and the atomic fields that technology has activated, the decision was overnight transformed to the question, whether and how man sets himself free in relation to a power that is capable of warding off the violence in the essence of technology. Faced with such a global situation, the thinking [Andenken] of the global proper character of Greece is a world-alienating occupation. (25-26)
By engaging in recollective thinking and resurrecting and confronting the mythic currents that once bound East and West together in an early world interculture, Heidegger discovers a potential alternative path for global awareness that might herald an escape from the techno-capitalistic currents that he fears are now engulfing the modern world.
Yet as potentially "world alienating" (26) as this discovery is, it is still not enough to qualify as a sojourn for Heidegger, who does not experience his first true sojourn until he visits the island of Delos: "Only through the experience of Delos did the journey to Greece become a sojourn . . ." (34). The fabled birthplace of the Greek god Apollo and his twin sister, the goddess Artemis, Delos was an important locale in Greek mythology. As Heidegger fast capitalism Volume 16 • Issue 2 • 2019
discovers, the location constitutes a sort of gap with the grid of modernity that allows for a temporary sojourn within ancient Greek Dasein . In phenomenologically intuiting and accessing this absent presence, Heidegger utilizes a hermeneutic aid that is found in the etymological significance of the Greek word aletheia or ἀ λήθεια , for as he notes, "It is only seldom then and after long preparation that we can succeed in looking at the presence of that which had once received form and measure from the field of ἀ λήθεια " (35).
Energized and invigorated by this sojourn, Heidegger recognizes that the remainder of his journey will constitute a series of experiences that will necessitate his piercing through many phenomenological layers of meaning. As he notes upon his arrival in Athens, "The awareness that we should go through many layers became stronger, that we should overcome many things that distract our attention, and to leave behind many familiar representations, in order to allow the Hellenism that is sought even here in Athens to show itself" (39). In contrast to his experience of the sheltered Delos, Heidegger finds that Athens has become a popular tourist locale. To this end, it is only during a lonely early morning visit to the Parthenon that he experiences a pure sojourn, albeit a "distantly fitting one" (41) given that he achieves this transcendence only through the contemplation of how modernity has deterritorialized the site of its mythic aura: "Through an inconceivable shine the entire building began to float, as, as the same time, it assumed a firmly defined presence, akin to that of the supporting rock. This presence was fulfilled by the abandonment of the holy. In this abandonment the absence of the flown goddess draws invisibly near" (40-41).
While the Romans had rendered aletheia as truth, Heidegger recognizes that the term had actually denoted "unconcealment" in ancient Greece. As Barbara Bolt notes in Heidegger Reframed (2011), "For the Greeks, as for Heidegger, truth is not propositional, but rather it is a revealing that brings forth the being of something out of concealment forth into unconcealment" (171). By engaging in recollective thinking, Heidegger hermeneutically engages aletheia and experiences a sojourn within ancient Greek Dasein via the gap or clearing that Delos affords within modernity's grid: "The meditations that for a long time occupied me with regards to ἀλήθεια, and the relationship between concealment and unconcealment have found, thanks to the sojourn in Delos, the desired confirmation" (34). Further ruminating upon Delos's connection to ἀλήθεια during his departure from the island, Heidegger concludes that Delos now functions as a contemporary sanctuary, for he notes how it is essentially concealed in plain sight by the neighboring isle of Mykonos, a "fashionable spot of international tourism" (36): "Perhaps it is good that, because of Mykonos, an oblivion cloaks the lonely Delos, for in this way it remains protected" (36).
Interestingly, it is not until Heidegger approaches Delphi near the end of his journey that he makes it clear that it is this location that has been the central object of his thoughts throughout his travels through Greece: "Judging from the previous experiences of the sojourns I was expecting that this last one, which had been considered as the crowning visit of the entire journey [emphasis added], would surpass all knowledge and imagination carried with me and would speak with its own language" (50). The hallowed site of the Temple of Apollo, Delphi was the veritable locus point of ancient Greek Dasein. As mythologist J.A. Coleman notes in The Dictionary of Mythology, Delphi was home to the Greek earth-mother and oracle Gaia (or Gaea) and was "regarded as the centre of the world" in ancient Greece (see "Delphi). In subsequently making his way throughout the region, Heidegger intuits that its sacred Dasein comes not from "the ruins of the temples" but rather from "the greatness of the region itself" (51). In this regard, he is able to recognize that the key to Delphi's essence is not found in its Temple of Apollo, but rather in the entire region, which essentially constitutes a temple in and of itself: "Under the lofty sky, in the clear air of which the eagle, Zeus's bird, was flying in circles, the region revealed itself as the temple of this place" (51). Paradoxically enough, Delphi engages in the concealment of that which is in plain view.
Commenting on this very phenomenon in his essay "Ontical Craving versus Ontological Desire," Michael E. Zimmerman situates Heidegger's concerns about technological Dasein in relation to the competing geopolitical systems of capitalism and communism:
In subsequently departing Delphi before making his return trip home, Heidegger ponders the immense value of the various sojourns he has been granted. His melancholic conclusion is that such respite from modernity will become ever more difficult as the world becomes increasingly engulfed within geo-unification: "The irresistible modern technology together with the scientific industrialization of the world is about to obliterate any possibility of a sojourn" (56). In essence, he fears that humanity will become captured by the relentlessly future-oriented discourse of globalization, which entails an attendant denial of the recollective thinking that constitutes a core element of the hermeneutic phenomenology that he has found essential for a deep travel sojourn. Amidst this globalizing condition, the potential for the revelation of any form of cultural Dasein apart from that of the inauthentic Dasein of modern technology will be suppressed.
[T]echnological Dasein has ended in the grip of a control obsession that elevates a means – technological mastery over entities – over all other ends. By making power an end in itself, capitalism and communism alike undermine not only traditional religious beliefs and cultural values, but also the ontological motion of transcendence (ek-sistence) that makes human existence possible. In his role as ontological therapist, Heidegger sought to diagnose such self-destructive compulsiveness. (515)
Faced with a marked awareness of these then competing geopolitical systems, Heidegger chose to eschew overt political commentary in favor of instead exploring how human Dasein was becoming endangered by modern logos, which defined both capitalism and communism alike. In essence, Heidegger recognized how post-WWII humanity was trapped between the devil and the deep blue sea, for he understood that any attempt to enframe the world within a geo-unifying technological system could only succeed at the expense of humanity's richly diversified forms of cultural Dasein.
Yet in spite of his contention that "modern technology" and "scientific industrialization" are about to "obliterate any possibility of a sojourn" (56), Heidegger maintains that his departure from Greece does not constitute an ultimate farewell to its originary culture, but rather a pivotal recognition of its absent presence beneath modernity's grid: "The departure from it [Greece] became its arrival. What had arrived and brought the assurance of its stay was the sojourn of the flown gods that opens itself to recollective thinking" (56). To this end, he once again praises Hölderlin by quoting the last strophe from Hölderlin's "German's Song," a passage from which he divines obvious inspiration for a stand against the "futureless progress" of the technological epoch (57):
Where is your Delos, where is your Olympia, For celebration that would conjoin us all? How shall your son divine the gift that, Deathless one, long you have darkly fashioned? (qtd. in Heidegger 57)
Clearly, Heidegger admires Hölderlin's call for modernity to confront its absence of mythopoetics, an invocation that presumably inspired his own practice of recollective thinking.
If, then, modern technology and scientific industrialization together encompass a sojourn-denying grid, this is only because they have systematically reoriented the collective consciousness of mass society in relation to modern logos. Indeed, Heidegger suggests that a phenomenological sojourn from modernity is still possible for those who are able to cultivate recollective thinking and develop a sufficient sense of phenomenological intuition. In essence, Heidegger is seemingly endorsing a phenomenological perspective that lies somewhere between William Shakespeare and William Faulkner, for while Antonio in Shakespeare's The Tempest (c. 1611) admonishes that "what's past is prologue" (I.ii.278), Gavin Stevens in Faulkner's Requiem for a Nun (1951) suggests, "The past is never dead; it's not even past" (92). Accordingly, Heidegger concludes Sojourns by cryptically yet informatively advising that Greece, "the birthplace of Occident and modern age, secure in its own island-like essence, remains in the recollective thinking of the sojourn" (57).
If we distill Sojourns and relate it to Heidegger's unique phenomenological views, we can divine the core elements of a comprehensive framework via which he intimates a praxis-oriented methodology and ethics for deep travel. To this end, language and its status as a cultural repository of history play a key role throughout Sojourns, for as Heidegger had earlier pronounced in his "Letter on Humanism" (1947), "Language is the house of Being. In its home man dwells" (217). In other words, language defines our conceptions and perceptions of social reality; it is the central matrix through which we form and process meaning. Accordingly, Heidegger first explores various historic mythopoetic narrative accounts of Greece before making his actual physical journey there, for traces of Greece's originary culture inhere within the ancient Greek language itself.
Put in more praxis-oriented methodological terms, Heidegger desires to intuitively excavate the remnants of Greece's originary culture. In order to accomplish this feat of knowledge, he does not turn to popular travel guides that will likely distort Greece's cultural history by enframing it within superficial contemporary narratives; instead, he builds upon his accrued knowledge of ancient Greek mythopoetics and the grand tradition of Western Hellenism. For Heidegger, deep travel thus begins with deep reading and deep study, for as he notes, "The Greek element remained an expectation, something that I was sensing in the poetry of the ancients, something that I intimate through Hölderlin's Elegies and Hymns, something that I was thinking on the longs paths of my own thought" (19).
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Deep Travel Ethics
Viewed from an ethical perspective, deep travel involves cultivating a sufficient level of phenomenological perception to intuit the essence of a foreign culture. While this phenomenological approach may initially seem somewhat mystical to contemporary readers, this is only because it rejects the intellectually confining parameters of modern logos in favor of cultivating a mythopoetic sensibility. More specifically put, Heidegger's travel ethics are not commensurate with our contemporary system of techno-capitalism, which enframes the world as a sort of high-tech global shopping mall via which privileged travel consumers can avail themselves of the latest commodified travel experience. 5 For Heidegger, travel is a serious matter that emanates not from the superficial "cosmopolitics" of globalization rhetoric, but rather from a sincere cosmopolitan quest to appreciate international cultural diversity in all of its uncommodified forms.
Long accused of intellectual sophistry by philosophers working within the Anglo-American analytic tradition, Heidegger is, of course, an easy critical target for those seeking easily articulable answers to highly complex problems. In this respect, the British philosopher A.J. Ayer undoubtedly spoke for many within the Anglo-American analytic tradition when he uncharitably opined of Heidegger, "The question of Being? A senseless querying of what must be an absolute presupposition. . . . Heidegger has displays of surprising ignorance, unscrupulous distortion and what can fairly be described as charlatanism" (qtd. in Collins 7). Yet in contrast to analytic-minded individuals like Ayer who would likely contend that Sojourns is a mere embodiment of sophistry or "charlatanism," I would counter that the work is actually highly amenable to praxis-oriented application.
If one doubts the salience of Heidegger's concerns about modernity's sojourn-denying ethos, then they should consider the current state of Greece. Ravaged by crippling debt and faced with calls for draconian austerity sanctions from Germany, Greece is about to be permanently deterritorialized of the remnants of its originary cultural Dasein by the cold, calculatory reterritorializing ethos of neoliberalism. Fundamentally incompatible with neoliberal technocapitalism and its crude rhetoric of efficiency, Greece is effectively being punished not just for its debt but also for its continued cultural resistance to the lifestyle norms of neoliberal capitalism. As the IMF's 2012 call for Greece to accept a six-day workweek suggests, the international community resents the premium that Greek citizens continue to place upon their distinct lifestyle. Despite OECD findings that clearly indicate that Greeks average longer weekly working hours than any other European workers (McCarthy), Greece is routinely impugned in the Western media for its ritualistic afternoon siesta time and its historic emphasis on valuing leisure as a vital component of its daily life-world. Once considered the bedrock of any enlightened society oriented towards the jouissance of existence, the very concept of the leisured life has today become anathematized in a global neoliberal society calibrated to the insatiable velocity of techno-capitalism. Amidst this new global condition, the prospect of achieving a sojourn from neoliberal ideology has become a near impossibility.
Deep Travel Phenomenology and Ethics: From Theory to Praxis
It is my view that Sojourns contains the theoretical fundamentals of an ethics of deep travel that can be distilled and applied. To cite a recent personal experience that involved the praxis-oriented application of what I term Heidegger's phenomenology of deep travel, I had the unique and valuable experience of first reading Sojourns and applying its implicit deep travel techniques while visiting Central Europe for the fist time. As I wandered the cobblestone streets of Prague throughout the resplendent chill of a mid-February week, I found myself surprised to discover that this historic city had seemingly become completely reconfigured as a marketplace for global neoliberal capitalism and its attendant culture of conspicuous consumption. What, I wondered, had happened to Prague's historic Dasein? Surely, the historic being of this city was not expressed in the omnipresence of such varied multinational corporate brand names as Rolex, Cartier, H&M, and Starbucks? What had happened to the Prague of history? Had Prague been completely deterriorialized of its historic cultural Dasein by the reterritorializing and geounifying ethos of global neoliberal capitalism?
Interestingly, a visit to Prague's Franz Kafka museum helped me work through all of the above questions. Although initially hesitant to visit the museum because I feared Kafka's life and works would be distortedly enframed by a hoary touristic apparatus, I found myself pleasantly surprised to discover a nuanced commemorative site that avoided enframing Kafka and his works within some simplistic exhibitional narrative. Having studied Kafka's works
at both the undergraduate and graduate levels, I found that the museum did justice to the immense complexity of Kafka and his literary masterpieces. Of particular use was a guidebook sold by the museum, The City of K.: Franz Kafka and Prague (2010), which I happily elected to purchase. It was in perusing the opening section of this guidebook that I came across a passage that reminded me of a key aspect of Prague's historic culture that I had been exposed to during my formal study of Kafka but had subsequently forgotten during the intervening years. Situating Kafka in relation to Prague's historically complex and divided urban culture, the passage notes,
Frank Kafka was born inside a vortex named Prague. A city in which three ethnic groups (Czechs, Germans and Jews) had lived together for centuries, yet still separated by differences in language, customs and culture. This conflict leaves its mark on the city's physiology, transforming it into hermetic compartments and defining invisible borders, without determining the size or the very essence of the cage. That cage has to be intuited from the bird's perspective. (9)
As the passage reminded me, Prague had been historically marked by unreconciled sociocultural differences
To this end, I could only appreciate Prague's historic Dasein by engaging in the practice of recollective thinking that was triggered by my visit to the Kafka museum, an experience which subsequently provided the avenue for a deep phenomenological sojourn via which I was able to fuse my rationalist presuppositions about Prague with my actual experience of it. By harnessing my knowledge of Kafka and his relationship to Prague as a hermeneutic aid, I experienced the phenomenological realization that traces of Prague's originary cultural Dasein were still discernible throughout the city's landscape. Paradoxically enough, however, I was only able to achieve this realization by observing how Kafka had become commodified and assimilated within the giant neoliberal marketplace that contemporary Prague had become.
that had resulted in a psychosocially conflicted urban society characterized by varying forms of cultural neuroticism. This cultural neuroticism was, of course, manifested in Kafka's deeply introspective literary works and Prague's historically creative intellectual milieu, the latter of which was obviously born of the city's collective socioexistential anxiety about the indeterminate state of its cultural identity. Intriguingly, Prague's historic sense of cultural neuroticism and its attendant penchant for intellectualism were continued throughout the Communist period. Even during Soviet totalitarianism, Prague had maintained a vibrant culture of creativity and difference that proved resistant to the crude assimilatory dictates of Soviet socialist realism. Only recently, it seems, has the city's creatively fruitful cultural neuroticism approached its seeming end – an end that has been ushered in via a totalizing global neoliberal apparatus that preaches the rhetoric of difference as it systematically proceeds to geo-unify all cultural diversity within its assimilatory ethos.
If Kafka had once been a marginalized voice of a neurotic yet creative culture, he was now firmly integrated within the cultural monomania of consumer capitalism that had come to define contemporary Prague. As I wandered the city's consumer-inundated streets I was constantly bombarded by kitschy Kafka dolls, Kafka mugs, and Kafka T-shirts that were available for sale via countless stores, newsstands, and street vendors. Once a tortured, introspective writer who had toiled away in virtual obscurity, Kafka was now an essential "brand name" that had become indelibly associated with Prague. Curiously, this had the effect of rendering Prague even more surreal than in Kafka's writings. If Kafka had toiled away creating works that he feared would neither be accepted nor comprehended by the reading public of his era, his name was now omnipresent in a city that had embraced his image while seemingly having ignored the introspective content and quality of his works.
Again, the overall effect of experiencing this phenomenon was even more Kafkaesque than a work by Kafka himself. While Kafka had achieved ubiquitous status in contemporary Prague, the majority of the city's tourists had likely never seriously engaged with a work by him. Only by harnessing Kafka as a hermeneutic aid and drawing upon my knowledge of his life and works could I intuit Prague's historic Dasein of vexatious cultural neuroticism, the remnants of which were still detectable in the city's unique art, architecture, and monuments. A deep travel sojourn was thus possible in Prague, albeit one born of a concentrated phenomenological effort to pierce through the city's contemporary cultural monomania of neoliberal capitalist consumerism.
Conclusion
Heidegger's Sojourns is perhaps now more relevant than ever, though its praxis-oriented methodology and ethics of deep travel will be accessible only to those who are able to achieve a temporary break from neoliberal fast capitalism Volume 16 • Issue 2 • 2019
techno-capitalism and its attendant forces of Das Man. 6 Accordingly, a journey abroad must be preceded by a sojourn within one's self, for cultivating an authentic sense of personal Dasein is a virtual necessity for those who harbor the ultimate ambition of pursuing a deep travel experience. Undoubtedly, there will be those who will argue that this very notion of deep travel is rooted in mystic sophistry. Should this be the inevitable case with some people, however, this is perhaps because the calculatory coordinates of neoliberalism have simply rendered them unable to fathom the inherent solace that a deep travel sojourn might provide.
Endnotes
1. Our modern understanding of logos as "reason" or "logic" differs considerably from its ancient Greek meaning. As Heidegger notes in his chapter "Logos" in his book Early Greek Thinking (1975), logos had meant "the Laying that gathers" in ancient Greece (76). Roughly speaking, this had denoted a process of cultural deliberation via which ancient Greek society had laid ideas out and gathered them together in a manner that disclosed their fundamental essence.
2. For an excellent recent anthology of essays exploring this topic, see editors Antonio Cerella and Louiza Odysseos's Heidegger and the Global Age (2017).
3. Defining Dasein in her book Heidegger Reframed (2011), scholar Barbara Bolt notes, "From [the German] 'da' (there) and 'Sein' (being). Heidegger uses the term 'Dasein' for the fundamental fact of being-right-there that characterises human existence. It relates to the German term for 'Being,' 'das Sein,' i.e. 'the to be' or 'existenz". . . . Dasein is constituted by being-in-theworld."
4. In employing the term "Web 3.0" I am borrowing from cultural critic Andrew Keen, who coins it in his book
References
Armstrong, Karen. The Case for God. 2009. Toronto: Vintage Canada, 2010. Print.
Bolt, Barbara. Heidegger Reframed. London: I.B. Tauris & Co. Ltd, 2011. Print.
The City of K.: Franz Kafka and Prague. Prague: Mucha Museum, 2010. Print.
Coleman, J.A. The Dictionary of Mythology: An A-Z of Themes, Legends, and Heroes. London: Arcturus Publishing, 2008. Print.
Digital Vertigo: How Today's Online Revolution is Dividing, Diminishing, and Disorienting Us (2012) to distinguish between "the Web 2.0 of Google, YouTube, and Wikipedia" and "the Web 3.0 of Facebook, Twitter, Google+ and LinkedIn (17).
5. As John Carlos Rowe notes in The Cultural Politics of the New American Studies (2012), the model of the American shopping mall has now become a global phenomenon: "Whether directly exported by U.S. business interests or developed by multinational corporations to look like its U.S. prototypes, the international mall is often traceable back to U.S. funding, design, and marketing sources or models" (108).
6. Literally translated from German, Das Man means "the one" or "the they." As Heidegger scholar Daniel O. Dahlstrom notes in his book The Heidegger Dictionary (2013), Heidegger employed Das Man "to designate Dasein in its average everyday way of beingwith others, where, figuratively and literally, it exists by following the crowd" (207-208).
Debord, Guy. Society of the Spectacle. 1967. Trans. Donald Nicholson-Smith. New York: Zone Books, 1995.
"Drastic new rules coming very soon for visitors to Machu Picchu." Andean Air Mail & Peruvian Times. 12 Mar. 2014. Web. 24 Mar. 2017.
Faulkner, William. Requiem for a Nun. 1951. New York: Random House, 1966. Print.
Collins, Jeff. Heidegger: A Graphic Guide. 1998. London: Icon Books, 2010. Print.
Garland, Robert. Ancient Greece: Everyday Life in the Birthplace of Western Civilization. New York: Sterling Publishing, 2008. Print.
Gyr, Ueli. "The History of Tourism: Structures on the Path to Modernity." EGO: European History Online. 3 Dec. 2010. Web. 7 Feb. 2017.
Heidegger and the Global Age. Eds. Antonio Cerella and Louiza Odysseos. London: Rowman & Littlefield International, 2017. Print.
Heidegger, Martin. "The Age of the World Picture." 1938. The Question Concerning Technology and Other Essays. Trans. William Lovitt. New York: HarperCollins 2013. Print. 113-154.
---. Early Greek Thinking. Trans. David Farrell Krell and Frank A. Capuzzi. 1975. New York: Harper & Row, 1984. Print.
---. "Letter on Humanism. 1947. Trans. Frank. A. Capuzzi. Basic Writings. Ed. David Farrell Krell. New York: HarperCollins, 2008. Print.
---. Sojourns. 1989. Trans. John Panteleimon Manoussakis. Albany: SUNY Press, 2005. Print.
---. "The Thing." 1950. Poetry, Language, Thought. Trans. Albert Hofstader. New York: HarperCollins, 2013. Print. 161-180.
Holbein, Hans. The Ambassadors. 1533. National Gallery, London. The Renaissance: A Very Short Introduction. By Jerry Brotton. Oxford: Oxford UP, 2006. 2. Print.
Keen, Andrew. Digital Vertigo: How Today's Online Social Revolution Is Dividing, Disorienting, and Diminishing Us. New York: St. Martin's Press, 2012. Print.
Manoussakis, John Panteleimon. "Translator's Notes." Sojourns: The Journey to Greece. New York: SUNY Press, 2005. Print. 59-70.
"Petition launched to stop new building projects form 'boxing' in the Acropolis." Neos Kosmos. 22 Feb. 2019. Web. 24 Jul. 2019.
Rowe, John Carlos. The Cultural Politics of the New American Studies. Ann Arbor: Open Humanities Press, 2012. Print.
Sallis, John. Foreword. Sojourns. Trans. John Panteleimon Manoussakis. Albany: SUNY Press, 2005. Print.
Schiavini, Cinzia. "Writing the Land: Horizontality, Verticality, and Deep Travel in William Least Heat-Moon's PrairyErth." RSA Journal: Rivista di Studi Nord Americani 15-16 (20042005): 93-113. Web. 19 Mar. 2017.
Shakespeare, William. The Tempest. c. 1611. New York: Barron's Educational Series, 2002. Print.
"sojourn, n." OED Online. Oxford University Press, June 2015. Web. 24 Feb. 2017.
Stein, Janice Gross. The Cult of Efficiency. Toronto: House of Anansi Press, 2001. Print.
Up in the Air. Dir. Jason Reitman. Paramount, 2009. DVD.
"Travel. As Much as you can. As far as you can. As long as you can. Life's not meant to be lived in one place." Lifestyle of the Unemployed. 17 Sept. 2013. Web. 30 Feb. 2017.
Wilson, E.O. Consilience: The Unity of Knowledge. New York: Alfred A. Knopf, 1999. Print.
Young, Julian. Friedrich Nietzsche: A Philosophical Biography. New York: Cambridge, 2010. Print.
McCarthy, Niall. "Greeks work the longest hours in Europe." Statista. 11 Mar. 2015. Web. 23 Feb. 2017.
Zimmerman, Michael E. "Ontical Craving versus Ontological Desire." From Phenomenology to Thought, Errancy, and Desire: Essays in Honour of William J. Richardson, S.J. Ed. Babette E. Babich. Dordrecht, The Netherlands: Kluwer Academic Publishers, 1995. Print. 501-523.
fast capitalism Volume 16 • Issue 2 • 2019
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STANFORD Policy Practicum: Creating a Social Media Oversight Board
Recommendations for the Facebook Content Review Board
2018-19 PRACTICUM RESEARCH TEAM:
Shaimaa BAKR,Ph.D. Electrical Engineering '20
Fernando BERDION-DEL VALLE, J.D. '20
Isabella GARCIA-CAMARGO, B.S.'20
Julia GREENBERG, J.D. '19
Tara IYER, B.S.'19
Alejandra LYNBERG, J.D. '19
Madeline MAGNUSON, J.D. ’20
Shawn MUSGRAVE, J.D. '21
Ashwin RAMASWAMI, B.S. ‘21
Nora TAN, B.S. ’1 9
Marlena WISNIAK, LL.M. ’19
Monica ZWOLINSKI, J.D. ’1 9
INSTRUCTORS:
Paul BREST, Faculty Director, Law and Policy Lab
Daniel HO, William Benjamin Scott and Luna M. Scott Professor of Law
Nathaniel PERSILY, James B. McClatchy Professor of Law
Rob REICH, Faculty Director, Center for Ethics in Society
TEACHING ASSISTANT:
Liza STARR, J.D./M.B.A. '21
POLICY CLIENT:
Project on Democracy and the Internet, Stanford Center on Philanthropy and Civil Society
559 Nathan Abbot Way Stanford, CA
https://law.stanford.edu/education/only-at-sls/law-policy-lab//
SPRING 2019
Contents
Executive Summary
In order to provide greater transparency and accountability for enforcement of its Community Standards, Facebook has called for the establishment of an independent board to oversee content decisions. 1 Following a period of consultation with NGOs and other interested parties around the world, Facebook has asked for public comment and input on the concept and structure of the board. In partnership with its policy client, the Stanford Project on Democracy and the Internet, the Stanford Law and Policy Lab engaged in research to inform the design of a social media oversight board, within the broad outlines of the draft charter that Facebook issued for public comment.
The recommendations presented here reflect the work of a team of Stanford law and engineering students, who, over the spring 2019 term, engaged in qualitative interviews with Facebook personnel, representatives from NGOs, academics, and legal experts to assess tradeoffs and prioritize options across different adjudicatory and regulatory models. The report assesses different design features for an oversight board for Facebook. It discusses the need for governing principles for any oversight board, the structure and membership of such a board, its case selection process, procedures for the board to review cases and issue decisions, and the board's authority to implement its decisions.
The Need for Governing Principles
If the board is to have any independence and authority, its responsibility cannot be merely to interpret Facebook's internal Community Standards. The reason is that the Community Standards are nearly continuously revised by Facebook's Content Policy team. Any interpretation of a provision in the Community Standards is, therefore, subject to Facebook reversal, rendering all board decisions potentially advisory. While we take no position on the appropriate source of authority (whether a "Constitution" for Facebook or international human rights law), we believe serious thought should be given to an external source of governing principles that the board applies in its decisions.
Although we do not make specific recommendations on the source of authority, we agree with the general principles as spelled out by Facebook. First, the board should be independent. Independence requires that no other entities, including Facebook itself, exert inappropriate or unwarranted interference in the board's operations, composition, and decision-making. Second, the board should be publicly accountable and transparent in its decision-making process. The board should ensure transparency in its decisions while providing requisite privacy protections. Third, the board should reflect the wider society it serves. Facebook recognizes this point, remarking that "the success and the ultimate effectiveness of the Oversight Board will depend on its ability to accommodate an inclusive and diverse range of perspectives, across language, culture and experience." 2
1 See Facebook, Draft Charter: An Oversight Board for Content Decisions, January 28, 2019, https://perma.cc/6T65-LWKB. The research from this Stanford Law and Policy Lab report is issued independently of Facebook's June 27, 2019, report, Global Feedback & Input on the Facebook Oversight Board for Content Decisions, https://perma.cc/RA6R-9TG8.
2 Ime Archibong, "Strengthening Safety and Encouraging Free Expression: Facebook's Goals for a New Content Oversight Board," Facebook Newsroom (blog), March 26, 2019, https://perma.cc/FXB6-W8X5.
Structure and Membership
To be effective, the board must be global, diverse, and sufficiently well-staffed to select and consider a diverse array of cases.
* Membership. Facebook has stated its intention to establish a forty-member, part-time board to handle content review decisions. We believe a part-time board of that size will not be sufficient to handle case selection, thorough consideration of the evidence, deliberation, and decision writing at any meaningful scale. We hence recommend that Facebook consider making board positions full-time, with staggered terms, and/or increasing the number of part-time board members.
* Inclusive Representation. Diversity in board membership will ensure that a wide range of perspectives — including national origin, ethnicity, or religion — is taken into account in the board's decisions. To ensure that the board reflects the diversity of Facebook users, the board membership should reflect, in some proportionality, Facebook's user population, while not allowing any one set of voices to dominate the rest.
* Appointment Process. To ensure board independence, Facebook may want to refrain from singlehandedly appointing board members and instead constitute an independent selection committee. This committee should also focus on ensuring diversity according to criteria of geography, expertise, race, religion, and gender.
* Staff. Given the complexity and caseload, the board will need a substantial permanent staff to aid with case selection, case preparation, research, writing, and monitoring.
* Funding. The board cannot be institutionally independent if Facebook can cease funding it at any point. Facebook should explore mechanisms to guarantee funding for the board, such as an independent trust fund or endowment.
Case Selection
To maintain credible independence from Facebook, the board must be able to select its own cases. This process should include:
* Petitioning for Review. Any interested party who has exhausted his or her ability to file appeals internal to Facebook and wants to appeal a content decision to the board should be able to petition the board for review. 3 This includes posters of content, flaggers of content, targets of content, and interested third parties such as Facebook itself, non-governmental organizations (NGOs), other companies, and governments. The petition forms should be structured, requiring petitioners to expend some effort and also eliciting relevant contextual information to guide the board through selection and decision.
3 Our understanding of the current internal appeals system is that exposure to the content is required to be able to petition for review. The exhaustion requirement may need to be relaxed or the internal petition process expanded in instances where parties whose interests are clearly implicated (e.g., an NGO that is not a Facebook user or a user who is depicted in but not exposed to content) are unable to exhaust internal mechanisms.
* Case Selection. A three-tiered system can help cope with the vast scale of disputed content decisions. "Elevation Teams," organized by region and content category and comprised of full-time staff members, can sort through the large pool of petitions to present a subset to a "Selection Panel" twice each month for consideration. The Selection Panel, composed of board members, can consider the cases nominated by the Elevation Teams, alongside a random (or stratified random) sample of cases, and decide which cases to select for review by a "Decision Panel."
* Selection Criteria. To select cases, the Elevation Teams and Selection Panels should follow established criteria, prioritizing cases that: (1) raise important undecided issues, (2) reveal considerable variance between moderators, (3) involve potential miscarriages of justice, and (4) conflict with board precedent and/or governing principles. Selectors should also ensure that cases reflect the range of issues along geographic region, types of petitioners, and types of violations.
* Information Sharing. Given the vast quantities of content removed by Facebook and appealed by users, Facebook will need to give the board access to existing internal decision-making processes for appeals. In order to apply the selection criteria listed above, board selectors need to be able to access and sort petitions based on metrics such as how often particular pieces of content are shared, flagged, and removed; selectors will also need to understand how Facebook content moderators make their decisions and utilize do-not-post rules and other internal Facebook guidelines.
* Appeals Eligibility. Facebook should ensure that adequate appeals mechanisms are in place for all types of content and that the board has authority to review those decisions. While some types of content (e.g., copyright claims) may be generally ill-suited to board review, that content should still be within the board's purview, given that, for example, pretextual copyright claims could be used to shield an otherwise improper takedown from further review.
Procedures
Clear and effective procedures are essential for the legitimacy of an oversight board, including:
* Case Review. Cases should be heard by three-member panels where at least one panel member represents the region in question. In cases of exceptional importance, en banc review by a panel of nine (randomly selected) board members may be granted after a majority vote by the en banc panel.
* Input and Evidence for Cases. In addition to statements from direct parties, cases may include expert briefs on relevant geopolitical, social, and cultural contexts, national law, and international human rights law.
* Opinions. Opinions should describe the panel's reasoning and identify criteria for the decision. Any panel member may file a dissenting opinion. Opinions should always be issued in a timely fashion, but the board may also establish mechanisms for expedited review of urgent matters.
* Publication. Pending cases, membership, and board procedures should be posted on the board website. Opinions should be posted, where appropriate, but may be redacted for privacy and other reasons. To protect board member deliberation, specific panelists assigned to individual cases should not be identified.
Implementation of Board's Decisions
To be effective, the board should be able to deploy a wide range of remedies and monitor content moderators and algorithms for compliance with its decisions.
* Remedial Authority. The board should have the authority to review disputed content for content moderation errors and, as necessary, issue decisions that directly address Facebook content moderation policies, practices, and Community Standards.
* Precedent. The board should have authority to determine which of its content-related decisions have precedential authority and specify the scope of its precedents, enhancing the board's flexibility to cabin decisions that are context-specific.
* Orders to Revise Community Standards, Training, and Algorithms. Given that the underlying problems of content moderation may emanate from the Community Standards, training, or algorithmic decisions, the board's power should extend beyond isolated content decisions. Where appropriate, the board should have the power to order Facebook to revise the Community Standards, modify training, and update algorithmic content decisions. Unlike orders with respect to specific content, these board orders should be rebuttable: Facebook may choose not to implement the board's order, but it must provide a public, written rationale of refusals to comply with an order.
* Monitoring. Effective and legitimate oversight can be achieved only if Facebook adheres to the board's decisions. The board should monitor Facebook's implementation of its decisions in three areas: (1) updates to the Community Standards, (2) content moderator adherence to board decisions, and (3) algorithmic adherence to board decisions.
* Annual Report. Board members will develop a unique perspective on Facebook's rapidly evolving content moderation system. Based on its experience and perspective, the board may issue an annual report making recommendations for reform.
Conclusion
We applaud Facebook for its creative proposal to address the problems of content moderation. As other social media platforms contemplate reforming their content moderation policies, Facebook has the unique opportunity to lead by example. If designed poorly, the board runs the risk of serving as a quasi-judicial rubber stamp on a system plagued by deep structural problems. If implemented well, the board may help to institute genuine reform and systematic improvement, based on transparency and accountability.
Introduction
In the space of twenty years, the infrastructure of free expression and association has undergone a profound transformation. The digital revolution has given billions of people the opportunity to express themselves in words, images, and videos to billions of others. Yet this revolution has come at a price: Social media platforms have unintentionally become gatekeepers of free expression worldwide. With social media companies increasingly under fire for their regulation of speech online, new solutions for content moderation are required.
Facebook is now incubating one potential solution: the creation of a social media oversight board. On November 15, 2018, Mark Zuckerberg announced that Facebook would create an independent governance and oversight body to oversee content moderation decisions. 4 This independent oversight board aims to enhance the company's existing means of moderating content and alleviate the burden on internal content officers to manage complex instances of arguably impermissible speech.
As part of the process of developing this board, Facebook opened a call for public comment and input. That charge led to a Draft Charter and a report on Global Feedback & Input on the Facebook Oversight Board for Content Decisions. 5 This report presents research by the Stanford Law and Policy Lab on how to design such a board. This research reflects the work of a team of Stanford law and engineering students, who, over the spring 2019 term, studied the problem and asked: If one were designing an oversight board, what should it look like?
This independent research contributes broadly to work underway with the Stanford Project on Democracy and the Internet, which served as this project's policy client. While the recommendations are specific to Facebook, the research seeks to inform concerns across social media platforms as they seek methods to manage content decisions. The research team engaged with Facebook officials and experts across the field to learn about the problem, but did not have full access to Facebook's internal data or the considerations facing its existing cohorts of content moderators, product designers, or algorithm developers. The team of student researchers developed consensus positions, which are presented in this report, but those views do not reflect the individual opinions of each student and advisor.
Thus, by necessity, our proposed design is the result of difficult choices. If the board is nimble and responsive to crises, its deliberative ability may suffer. If the board seeks to maintain consistent standards for Facebook's worldwide user base, local context will invariably get lost. And the more control the board has over Facebook's content moderation decisions, the greater the risk of open conflict between the board and Facebook. Facebook must weigh these tradeoffs, among others, and will need to make compromises. Although the board cannot satisfy all of these competing and contradictory demands, its success will depend on its perceived legitimacy and the efficiency with which it handles a diverse set of cases arising from content decisions made throughout the world.
4 Mark Zuckerberg, "A Blueprint for Content Governance and Enforcement," Facebook, November 15, 2018, https://perma.cc/4WBK-Z33P.
5 Facebook, Draft Charter; Facebook, Global Feedback.
This report is organized into five sections. Section I briefly describes the need for governing principles for the board, beyond Facebook's own Community Standards. Section II discusses the board's structure and membership. Section III addresses the process and criteria for case selection, and Section IV discusses the board's procedures. Finally, Section V considers the board's reach and its power to remedy violations of Facebook's Community Standards.
I. The Need for Governing Principles
If the board is to have independence and authority, its responsibility cannot be merely to interpret Facebook's internal Community Standards. The reason is that the Community Standards are nearly continuously revised by Facebook's Content Policy team. Any interpretation of a provision in the Community Standards is hence subject to Facebook reversal, rendering all board decisions potentially advisory.
Instead, Facebook should consider creating or adopting a set of higher-order principles for the board that supersede the Community Standards (and cannot readily be changed or altered by Facebook). These fundamental principles would serve as essential values for Facebook and the board and may guide decisions to revise the Community Standards.
As part of the public input process following the issuance of the Draft Charter, commentators have suggested different potential sources for these higher principles. Some have suggested that the board adopt international human rights law, for example, or free speech law derived from various national constitutions. Alternatively, the board or Facebook could draft a set of original "Guiding Principles," relying on Facebook's Mission Statement or other higher order principles from which the Community Standards are derived. These principles would express the competing values that govern both user behavior and Facebook policy on the platform: free expression, safety, privacy, community, and the like.
Although we take no position on the appropriate source of authority (whether a "Constitution" for Facebook or international human rights law), we believe an external source of governing principles is essential to the board's ongoing legitimacy. Without such governing principles, the board's decisions will have little enduring weight, as Facebook can override them or render them irrelevant simply by revising the Community Standards. Over time, the board's own precedents will add nuance to the principles and develop a gravitational force of their own.
II. Structure and Membership
The legitimacy of a social media content review board will depend on its independence and the representativeness of its membership. Like a court or regulatory agency, a truly independent board must be "immune from undue influences from public, private, or other special interest." 6 There must be no "inappropriate or unwarranted interference" by another entity, 7 such as Facebook, in the board's operations, composition, and decision-making. The structure of the board and its relationship to the platform it oversees – from its inception and selection process through its execution – greatly affect how independent and, thus, legitimate the board will be.
We recommend several features to preserve the board's independence, including that Facebook delegate board member selection power to a selection committee and fund the board through an independent trust. Measures such as these help ensure that the board serves as an independent check on power, rather than a dependent functionary of Facebook itself. At the same time, effective oversight for a global platform must come from a globally representative body that reflects, in some proportionality, Facebook's user population. The board's legitimacy depends not only on the geographic diversity of its members, but also on diversity of expertise, viewpoint, race, religion, gender, and more.
A. Selection Process for Board Members
1. Independent Selection Committee
In a letter to Mark Zuckerberg, David Kaye, UN Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, stressed that achieving an independent board depends on establishing a "well-entrenched independent mechanism … responsible for the appointment, promotion, transfer and dismissal of judges." 8 The failure of Google's recent AI ethics board, including its subsequent dismantling due to internal opposition to the selected members, 9 demonstrates just how critical a fair, independent, and transparent selection process is.
6 Stanford Global Digital Policy Incubator, Article 19, and United Nations Special Rapporteur on Freedom of Opinion and Expression, Conference Report: Social Media Councils - From Concept to Reality (February 1-2, 2019), 32, https://perma.cc/6S99-ZZ6K; see also Kanstantsin Dzehtsiarou and Donal Coffey, "Legitimacy and Independence of International Tribunals: An Analysis of the European Court of Human Rights," Hastings International and Comparative Law Review, no. 37 (2014), https://perma.cc/K9HF-CA46; Martino Maggetti, "Legitimacy and Accountability of Independent Regulatory Agencies: A Critical Review," Living Reviews in Democracy (2010), https://perma.cc/X62R-2AQR.
7 United Nations Office of the High Commissioner for Human Rights, Basic Principles on the Independence of the Judiciary, adopted September 6, 1985, https://perma.cc/9P5N-BLDC. The principles were "formulated principally with professional judges in mind, but they apply equally, as appropriate, to lay judges, where they exist."
8 David Kaye, Mandate of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, OL OTH 24/2019, May 1, 2019, 5, https://perma.cc/DCH3-KYET .
9 Kent Walker, "An external advisory council to help advance the responsible development of AI," Google Blog, March 26, 2019 (updated April 4, 2019), https://perma.cc/2R9A-LEDT; see also Nick Statt, "Google dissolves AI ethics Board just one week after forming it," The Verge, April 4, 2019, https://perma.cc/W79C-UAYM.
In its Draft Charter, Facebook proposed to select the initial members of the board based on a public "review of qualifications." 10 The board members would later appoint their own successors. We urge the company to consider alternative selection processes, discussed below. Although our recommendations may slightly increase the cost and time of selection, we believe these costs are a small trade-off for the overall legitimacy and longterm success that the oversight board would gain.
We recommend that Facebook appoint an external body that will be responsible for selecting the first round of board members. Kaye rightfully notes that "the experience of international human rights law indicates that another option under consideration – delegating initial appointments to a selection committee – may be a more robust guarantee of the board's independence." 11 Facebook should recruit and publicly call for nominations and applications of independent experts to serve on a reasonably small (e.g., five- to nine-member) selection committee. These individuals would ideally come from civil society and academia, with a track record of working at the intersection of technology, policy, and human rights, and with experience in issues pertaining to social media platforms and content moderation. To the extent possible for such a small group, they must also meet the diversity criteria established for the board itself (i.e., demographic, cultural, and geographic diversity).
Once the members of the selection committee are confirmed, they will be responsible for the initial appointment of board members. Although most board members would be selected directly by the selection committee, Facebook may want to consider requiring a small fraction of board members (e.g., twenty percent) to be selected from among a pool of nominees selected by the Facebook user population. For example, board members could be selected from users who volunteer and go through a nomination process, a mechanism similar to selection for Wikimedia's Arbitration Committee, which resolves Wikimedia content disputes. 12 Alternatively, users who meet minimal eligibility criteria could be nominated by user "election" — that is, by a majority vote of Facebook users who participate in the election process. While this process would increase the legitimacy of the board, there is a risk of electing the most vocal and potentially extremist users to the board (let alone allowing for potential manipulation of the election process by nation-states and other strategic actors). If an outside process is used to nominate some fraction of the board members, then, the pool of "external" candidates will still need to be approved and vetted by the selection committee.
2. Inclusiveness of Process
Whether selection is done by an independent committee or other means, Facebook should ensure that the selection process is inclusive and built on meaningful consultation with diverse stakeholders. Facebook has made unprecedented efforts in consulting with a diverse array of communities in its outreach efforts in the predesign period for the board. The company should further intensify its efforts to include in the design process vulnerable and marginalized groups. The company must ensure at each stage of the development of
10 Facebook, Draft Charter, 2; see also Nick Clegg, "Charting a Course for an Oversight Board for Content Decisions," Facebook Newsroom (blog), https://perma.cc/3FL5-95WK.
11 Kaye, Mandate of the Special Rapporteur, 4.
12 Wikipedia, "Wikipedia:Arbitration_Committee," last edited April 29, 2019, https://perma.cc/MY2W-KMAB.
the board to include diverse representation along lines of political ideology, gender and gender identity, sexual orientation, race, ethnicity, religion, disability, and other classifications typically targeted for discrimination. Groups that have been historically at risk of censorship or attacks, such as human rights defenders, should also be included in the design and implementation process. 13
Meaningful consultation requires including affected communities in the conversation – from the initial design throughout the entire implementation process – by listening to them, and, most importantly, acting upon their insights, concerns, and recommendations. We applaud Facebook for its commitment to stakeholder engagement throughout the institutional design process, and urge the company to incorporate lessons learned from this process into its final decision-making. Established best practices for stakeholder engagement, such as those developed in the context of the United Nations' Guiding Principles on Business and Human Rights, should serve as a guide. 14
B. Membership Criteria
1. Geographic diversity
Board members should be as diverse as Facebook's global community. After all, "[o]nline content does not fall neatly within national boundaries. The problem is global, and solutions must address and reflect those global dimensions." 15 At the same time, different countries and regions face unique challenges from social media. Any oversight board thus must balance the need for consistency across the platform with sensitivity to local circumstances and culture. We therefore recommend a global board, divided into regional subsections, such as:
1. US/Canada
2. Latin America
3. Europe
4. The Middle East and North Africa
5. Sub-Saharan Africa
6. South Asia
7. Asia (excluding South Asia)
8. Oceania/Australia
We recommend allocating seats to each regional subsection in some proportionality to Facebook's user population, while not allowing any one set of voices to drown out the rest.
13 Kaye, Mandate of the Special Rapporteur, 5.
14 United Nations Office of the High Commissioner for Human Rights, "Guiding Principles on Business and Human Rights: Implementing the United Nations 'Protect, Respect and Remedy' Framework" (HR/PUB/11/04), June 2011, https://perma.cc/6ZV5-U4QC; see also United Nations Human Rights Council, Resolution 17/4 - Human rights and transnational corporations and other business enterprises, July 6, 2011, https://perma.cc/28VF-5UMK; Shift, Oxfam, and Global Compact Network Netherlands, "Stakeholder engagement," in Doing Business with Respect for Human Rights: A Guidance Tool for Companies, 2016, https://perma.cc/DJ45-5VE6.
15 Stanford Global Digital Policy Incubator, Article 19, and United Nations Special Rapporteur on Freedom of Opinion and Expression, 27.
Content moderation will only be legitimate in users' eyes if done with knowledge and understanding of a case's specific local and cultural context. 16 A global board, however, will not always have the necessary knowledge to understand localized needs and fairly apply Facebook's Community Standards. Thus, in addition to a representative board, we recommend establishing a roster of country and regional experts who would support the global board. These experts can help provide additional context when the board itself lacks the requisite cultural knowledge.
A global board will also need to overcome language barriers. To the extent possible, board members should be multilingual and speak at least one language practiced within their assigned region. We also recommend that Facebook define "working languages" for the board, requiring each board member to be fluent in at least one of them, much as international courts do. 17
After the initial selection of board members, specific diversity requirements can be adjusted on a yearly basis by accepting more or fewer members from each region than were initially recommended. Flexibility is necessary, so that the board can adapt if it becomes clear that certain regions have become under- or over-represented.
2. Demographic and Ideological Diversity
The democratic legitimacy of a judicial body directly depends on its ability to reflect the wider society that it serves. 18 Facebook itself has recognized that "the success and the ultimate effectiveness of the Oversight Board will depend on its ability to accommodate an inclusive and diverse range of perspectives, across language, culture, and experience. 19
Achieving genuine diversity is one of the most difficult undertakings Facebook will face in creating this board. The board's jurisdiction will cover virtually every country, each of which exponentially expands the number of relevant languages, cultures, ideologies, and experiences represented on the platform. As one commentator remarked, a forty-member oversight board "cannot hope to represent even a meaningful fraction" of the views represented by Facebook's global membership. 20 This limitation is a product of Facebook's unparalleled scale and must be publicly addressed by Facebook at the creation of this board.
We make several suggestions to guide the initial board selection committee when considering demographic diversity among board members. First, a reasonable level of gender parity is an achievable metric, which should certainly guide the selection of the initial cohort. Second, when considering other axes of demographic diversity, such as race, ethnicity, or religion, a good starting point may be to ensure regional representation in proportion
16 Ibid., 16-20.
17 The International Criminal Court, for example, requires its judges "have an excellent knowledge of and be fluent in at least one of the working languages of the Court." International Criminal Court, Rome Statute of the International Criminal Court, Art. 36.3(c), July 17, 1998, https://perma.cc/C5PW-8SFD.
18 Some empirical evidence suggests that there may be substantive differences in decision-making arising from a diverse judiciary. See Rosemary Hunter, "More than Just a Different Face? Judicial Diversity and Decision-making," Current Legal Problems 68, no. 1, 2015, 119–141, https://perma.cc/7RAQ-7MW5.
19 Archibong, "Strengthening Safety.".
20 Evelyn Douek, "Facebook's 'Oversight Board': Move Fast with Stable Infrastructure and Humility," North Carolina Journal of Law and Technology 21, no. 1 (2019), https://perma.cc/38P2-UT9X.
to Facebook's user population, as described above. While this is certainly an imperfect proxy and it will be impossible to represent all constituencies in the user population, it is an important first step to legitimize this body as a truly global oversight board.
Finally, as emphasized above, we consider ideological diversity to constitute a critical component to ensuring the board's legitimacy. Different democracies strike the balance between free speech and other values, such as security, privacy and anti-discrimination, in different ways. It would be wrong and harmful to the credibility of the board, if, for example, all board members adhered to a single country's perspective on how to strike that difficult balance. At the same time, Facebook should not feel compelled to provide board representation to authoritarians, merely because many of its users live under such regimes. Nor should it feel compelled to provide representation to those who espouse ideologies completely at odds with the company's values of free expression, tolerance, equal treatment, and user safety.
3. Professional Diversity
Facebook's own Draft Charter recommends that members have deep expertise in a range of topics, including "content, privacy, free expression, human rights, journalism, civil rights, safety and other relevant disciplines." 21 We agree.
Advisory boards and courts commonly require expertise from their members. Judicial bodies, like the International Criminal Court, generally require that judges have established competence in relevant areas of law. 22 Meanwhile, other international bodies, such as ICANN or the Wikimedia Arbitration committee, look for members with technological expertise. 23
Social media oversight boards, generally, and the Facebook board, specifically, should also include members with diverse expertise, drawing from civil society, academia, and industry. Some board members should be legal experts—including a combination of experts in local, national, and international laws and norms. In addition to lawyers, board members should include professionals working in business, media, technology, and nonprofits, as well as community leaders.
4. Eligibility and Independence of Board Members
As important as the board's own independence is, the independence of individual board members is also paramount to ensure they are not swayed by external interests. We thus propose adding several eligibility requirements to preserve individual board members' independence.
21 Facebook, Draft Charter, 1.
22 Rome Statute, Art. 36(a); see also International Court of Justice, Statute of the International Court of Justice, Art. 2, October 24, 1945, https://perma.cc/G265-HELL; Inter-American Commission on Human Rights, American Convention on Human Rights, Art. 42, November 22, 1969, https://perma.cc/PDA9-JUMY; Organization of African Unity, African Charter on Human and Peoples' Rights, Art. 31.1 & 32, October 21, 1986, https://perma.cc/9WN9-VLXB.
23 ICANN, Board Governance Guidelines, "Board Membership Criteria," amended July 18, 2018, https://perma.cc/LE69-8C72; Wikipedia, "Wikipedia:Arbitration_Committee."
In order to avoid state capture of the board, members of the legislative and executive branches of government should be precluded from serving as board members unless they are retired and unlikely to return to government service. Former judges should be eligible, as long as they do not simultaneously sit on the bench in their respective jurisdictions. Likewise, staff members from international organizations should be considered so long as they do not hold political positions requiring them to represent their country's interests.
Of course, current or recent Facebook employees could not serve on the board if it is to maintain perceived and actual independence. Yet we also recognize that service by former employees could be valuable, given their technical expertise or familiarity with internal Facebook processes. To balance these competing considerations, board members should neither have been employed at Facebook within the last five years, nor should they be permitted to rejoin the company for five years after the end of their term of service on the board.
C. Structure of the Board
1. Size of the Board
The optimal size of an effective social media oversight board depends on a number of factors. The required diversity of its membership is one constraining factor, as only boards of a certain size will be able to provide adequate representation from each region or demographic group. Moreover, the size of the board should be optimized for the expected workload of each member, which will depend at least in part on whether board members serve full time or part time. At the same time, a board that is too big will be unwieldy, costly, and less efficient.
Facebook's Draft Charter proposed a 40-member, part-time board to oversee global content moderation decisions. 24 Even with most decisions made by three-member panels (as we recommend below), given the size of Facebook's user population, in conjunction with the huge volume of appealed content — in the first quarter of 2019, for example, users appealed more than 2 million times just for content removals based on the "Adult Nudity and Sexual Activity" sections of the Community Standards 25 — we believe this proposed size is too constraining to allow Facebook to achieve a truly diverse board able to represent its global user base. If board members are to serve part-time, the board must be significantly larger to handle any meaningful volume of appeals. Alternatively, board members could serve full time, although this might limit Facebook's ability to attract a high-profile slate of candidates from diverse fields.
Finally, given the large size of the board, a Chair of the Board will be critical to managing internal processes and ensuring that the board fulfills its duty as an independent check on Facebook. In addition, each regional subsection should have a vice president to handle matters of particular importance to the region.
24 Facebook, Draft Charter, 1.
25 Facebook, Facebook Transparency Report: Community Standards Enforcement Report, May 2019, https://perma.cc/YC4V-J6JD.
2. Board Term
We recommend that board members serve staggered, multi-year terms (e.g., three- to five-year terms) and be subject to removal only for cause.
Multi-year board terms are critical to effective oversight, and are typical for analogous institutions. For example, members of the ICANN Board serve three-year terms, 26 and judges at the International Court of Justice serve nine-year terms. 27 This structure enables board members to serve long enough to cement institutional memory and provide some measure of continuity. However, given the importance of engaging diverse viewpoints, we suggest allowing each member to serve only one term. Term limits ensure that the initial cohort of board members will not come to dominate the board and become entrenched. Turnover in board membership is necessary to ensure responsiveness to changing dynamics in the social media environment and to protect the board against any individual member having too much power.
A 3-to-5-year term limit requires the board to implement additional measures. First, it is important to have staggered terms, not only to ensure continuity of institutional knowledge, but also to allow newcomers ample opportunity to contribute to the board. 28 Second, board members should not have absolute immunity for misconduct, such as for a breach of board confidences, and there should be mechanisms for holding them individually responsible and removing them, if necessary. It is common in other systems of governance that an external body votes on removal; for example, U.S. federal judges can be impeached and removed by Congress. 29 However, allowing Facebook, or even the selection committee, to remove board members at their whim could pose serious problems for the board's independence and legitimacy. Thus, serious thought should be given to which entity (the board as a whole, the standing selection committee) has the power of removal, under what conditions, and according to what kind of process. Removal provides a potential backstop on abuses of power by any individual member, but should be deployed only for good cause.
3. Staff
We agree with Facebook that the board must "be supported by a full-time staff." 30 The staff should be employed by the board, not Facebook, and should include: 1) subject-matter experts on particular regions, content types, and/or technologies; 2) staff to recommend cases for board review; and 3) general staff members to assist the board members in their duties. These permanent staff members would be complemented by experts or others on an ad hoc basis, as required for particular cases.
With a global board, it is impossible to have members with expertise on all topics that might arise in individual cases. Thus, the board will require a group of subject-matter experts who are familiar with major issues and concepts from around the world. Each of these staff members could be responsible for a particular region, maintaining contacts with other experts in their region and bringing them in to offer additional expertise when necessary. Additionally, this standing staff should include experts in other domains, including technical ones,
26 ICANN, Board Governance Guidelines.
27 International Court of Justice, Statute of the International Court of Justice, Art. 13.
28 The ICJ, for example, has staggered terms. Ibid.
29 Under the United States Constitution, the House of Representatives files articles of impeachment and the Senate conducts the impeachment trial. U.S. Constitution, Art. I. For an explanation of the judicial impeachment process in the United States, see Douglas Keith, Brennan Center for Justice, "Impeachment and Removal of Judges: An Explainer," March 23, 2018, https://perma.cc/8HLL-TV24.
30 Facebook, Draft Charter, 1.
because not everyone on the board will have the requisite knowledge of the technical implications of their decisions or the practicality of implementing those decisions. This structure could be loosely based on the U.S. Congressional Research Service, which offers nonpartisan research and report service to Members of Congress. 31
Additionally, a single board member's workload is likely to be too much to handle by that member alone, especially if members work only part-time. We therefore recommend that each member be given the resources to hire at least one full-time staff member. This staff member would be in charge of writing opinions or performing research on behalf of the board member, thus lessening that member's workload and allowing that member to focus his or her attention on hearing and deciding cases.
4. Funding
Finally, the source and dynamics of the board's funding will be critical to maintaining its independence. We considered three possible funding sources: Facebook itself, international government entities, and nonprofit donations. International, government-backed funding could aid in ensuring the adoption of the board as a truly global entity. However, the risk of state capture dramatically increases with the introduction of large government actors into the funding model. Third-party nonprofits might also attempt to exert undue influence on the board, as any external entity capable of contributing a significant financial donation may be associated with a particular agenda.
We find funding through Facebook to be the most viable option. This option is practical: Facebook has the resources to pay for it. We also believe it is Facebook's responsibility to bear the costs of enforcing its own Community Standards and ensuring fairness in content moderation. Facebook should consider a funding mechanism to pledge a fixed budget for an extended period of time. Facebook could do so by setting up an independent trust, controlled by people with no relation to Facebook, which actually controls disbursement of funding to the board.
31 Congressional Research Service, About CRS, April 16, 2019, https://perma.cc/6MWK-N8VY.
III. Case Selection
To maintain legitimacy as a body independent from Facebook, the board must be able to select its own cases from among the pool of eligible content moderation decisions. To achieve procedural fairness, any interested party who has exhausted his or her internal appeals and wants to appeal a content decision to the board should be able to petition for review. This includes posters of content, flaggers of content, targets of content, and interested third parties, such as Facebook itself, non-governmental organizations (NGOs), other companies, and governments. The petition forms should be structured, requiring petitioners to expend some effort and eliciting relevant contextual information to guide the board through selection and decision.
To cope with the vast scale of disputed content decisions, we propose a three-tiered system composed of Elevation Teams, Selection Panels, and Decision Panels. A set of Elevation Teams, organized by region and content category and comprised of full-time staff members, sorts through the large pool of petitions to present a subset to a Selection Panel for consideration. The Selection Panel, composed of rotating board members, considers the cases nominated by the Elevation Teams, alongside a few cases picked as a random sample from among all content takedowns, and decides which cases to select for review by future Decision Panels.
When choosing which petitions to elevate and ultimately select, both the Elevation Teams and Selection Panels should follow four guiding criteria, prioritizing cases that:
* Raise important undecided issues,
* Reveal considerable variance between moderators,
* Involve potential miscarriages of justice, or
* Conflict with prior board precedent and/or governing principles.
In order to ensure that no single type of petition dominates the board's decisions, both sets of case selectors should also consider the following types of diversity: geographic region, petitioner type, and violation category.
Given the vast quantities of contested content removed by Facebook and appealed by users, Facebook may need to modify its existing internal appeals system for the board's selection process to be effective. First, to apply the guiding criteria, selectors need to be able to access and sort petitions based on metrics such as how often particular pieces of content are shared, flagged, and removed, and what rules Facebook content moderators followed to make decisions on those pieces of content. Second, Facebook should ensure that adequate appeals mechanisms are in place for all types of content and that the board has authority to review those decisions.
A. Cases Eligible for Board Review
What types of cases should even be eligible for board review? Facebook has stated that the board's primary function will be to review specific content decisions made when enforcing the Community Standards. 32 We offer a few caveats.
Facebook asserts that the board should "not decide cases where reversing Facebook's decision would violate the law." 33 After all, since Facebook is a public company, it cannot be compelled by an external body to act outside the law and thus put its members in legal jeopardy. That said, some alleged violations of national law are in fact pretextual. For example, it has been reported that freedom of speech violations have been committed under the guise of intellectual property violations. 34 In particular, copyright claims can be deployed by governments to limit political dissident speech, interfere with elections, or just threaten censorship in general. 35 Excluding these cases from board review would raise serious concerns and undermine the board's ability to check attempts at chilling speech on the platform.
In addition to content takedowns, some account takedowns should be within the board's purview. Accounts are sometimes shut down due to content standard violations (and not for other policy reasons, such as impersonation or fake names). We think it is important for account disabling to be eligible for review by the board since the effect of disabling an account flows from a Community Standards violation and chills speech.
Finally, while a danger lies in writing off any category of content from appealability, it may be necessary for spam, due to the sheer volume of potential appeals. From the data Facebook has published for the first three months of 2019, the volume of spam content pieces at issue dwarfs all other published categories combined. Spam alone accounted for 1.8 billion pieces of content removed, 20.8 million appealed, and 15.1 million appeals denied. The equivalent figures for all non-spam categories published combined, per three-month period, are: 73.0 million removed, 4.1 million appealed, and 3.4 million appeals denied and therefore theoretically eligible for appeal. 36 At the very least, if spam decisions can be appealed, review by selectors would need to be highly abbreviated.
32 Facebook, Draft Charter, 3.
33 Ibid.
34 See Daphne Keller, "Who Do You Sue? State and Platform Hybrid Power Over Online Speech," Aegis Series Paper No. 1902, January 2019, Hoover Institution. https://perma.cc/K5TH-4SHD; Irene Caselli, "Taking Down the Critics: Is Ecuador's Government Silencing Social Media Users?" Index on Censorship 43, no. 3 (September 2014), https://perma.cc/8CDG-Z4AS.
35 See Corynne McSherry, Electronic Frontier Foundation, "Platform Censorship: Lessons From the Copyright Wars," September 26, 2018, https://perma.cc/N4YJ-MTYM; Stephen Gray, "Copyright Strikes as a Tool for Censorship, Bullying, Extortion," NYU Journal Of International Law And Politics (blog), March 7, 2019, https://perma.cc/2AUX-UA9K; Alex Hern, "Revealed: How copyright law is being misused to remove material from the internet," The Guardian, May 23, 2016, https://perma.cc/TD59-JRHP.
36 Facebook, Community Standards Enforcement Report. Note that, according to the guide accompanying the report, Facebook's enforcement statistics do not incorporate second-level appeals or appeals by content reporters. See Facebook, "Understanding the Community Standards Enforcement Report," May 2019, https://perma.cc/8GTH-TFRF.
FIRST-LEVEL POSTER APPEALS DENIED BY FACEBOOK
Calculations based on Facebook's Community Enforcement Report, May 2019.
B. Petitioners
To promote the accessibility, independence, and accountability of the board, we recommend implementing an open petition process. This petition process should be accessible to (1) individuals who are unsatisfied with the result of their appeal via the Facebook process; (2) organizations (i.e. NGOs, companies, and governments) that disagree with a content moderation decision taken on their own content or the content of an individual; and (3) Facebook itself. Petitions to the board should be tailored to a content takedown decision and can additionally call on the board to specifically reconsider a policy detailed in the Facebook Community Standards. We also recommend the inclusion of a defined number of cases selected at random from the pool of content takedowns that were not appealed, in order to acquaint the board with the operation of the Community Standards in garden variety, as opposed to edge or hard cases, and to allow them to provide oversight even in run-of-the-mill cases.
We recognize that opening the petition process in this manner might open the floodgates and require a substantial investment of resources. However, we believe this accessibility is essential to the legitimacy of the board. By opening access to the board to the Facebook community at large, and by empowering the board to select from the petitions it receives, the board's independence and accountability to the broader Facebook community can be secured.
1. Who Can Petition the Board?
a. Original Parties
The first category of petitioners that can directly petition the board are individuals that have (1) posted content that was removed by Facebook, (2) flagged content to be taken down, or (3) been victimized or targeted by content that has been posted on Facebook.
For content that is appealable, individuals generally must have exhausted the internal appeals process prior to submitting a petition to the board. That said, our understanding of the current internal appeals system is that only individuals who have viewed content are able to petition for review. The exhaustion requirement thus may need to be relaxed or the internal petition process expanded in instances where parties whose interests are clearly implicated (e.g., a user who is depicted in but not exposed to content) are unable to exhaust internal mechanisms.
b. Outside Groups
Outside groups such as NGOs, companies, and governments should also be able to submit petitions directly to the board. These outside groups can petition regarding the takedown of their own content (e.g., if they have a Facebook Page that they use to post to their communities). Facebook should also consider allowing these outside groups to petition on behalf of individuals, at least where individuals cannot necessarily petition the board themselves (e.g., where the victims of a post are unidentifiable). Governments will not be able to petition the board regarding compliance with their national laws.
To address concerns that well-resourced outside groups will be better equipped to prepare petitions to the board (and thus be selected over individual petitions), we recommend that case selection targets be set for the various types of petitioners. These targets will be detailed later in this section and will function to ensure an equitable distribution of the board's resources.
c. Facebook
Because of Facebook's unique perspective and access to information about potential cases, the company should be able to petition the board directly. We envision several different sources of Facebook petitions: (1) nominations by content moderators, (2) contentious content seeing a high volume of flags or appeals from users, and (3) escalations by Facebook employees. Facebook petitions to the board should not be granted automatically and should be considered alongside the petitions from individuals and outside organizations.
We also considered whether or not there should be a "crisis channel" for emergency decisions. This crisis channel would bypass the full case selection process and funnel a case directly to a Decision Panel for review. As a recent example of a possible crisis event, consider the Christchurch, New Zealand shooting in which the perpetrator of the attack live streamed his actions on Facebook. 37
A crisis channel would have the benefit of allowing Facebook to call on an independent third party, the board, to reach an independent decision on the content while the crisis is ongoing. Given the sensitivity, reach, and potential safety implications of crisis content, an impartial board imbued with expertise would be particularly beneficial.
37 Cade Metz and Adam Satariano, "Facebook Restricts Live Streaming After New Zealand Shooting," New York Times, May 14, 2019, https://perma.cc/78SS-2KCR.
There are, however, some disadvantages to implementing a crisis channel. First, given the time-sensitive nature of these issues, some board members would have to be on call throughout the year to monitor this channel. Second, there is the potential for abuse, especially without a clear definition of what qualifies as a "crisis." Too many escalations via this channel would take resources away from individual petitioners and outside organizations. If Facebook does adopt a crisis channel, crisis escalations should be capped (although setting that numerical cap would almost certainly be arbitrary).
An alternative to creating a crisis channel is to keep the status quo. Facebook would continue to be responsible for making time-sensitive content moderation decisions in times of crisis, and eligible petitioners would raise petitions with the board after the fact if they disagreed with the action taken by Facebook.
d. Random Sample
Finally, we suggest that the board consider an allotted number of randomly generated cases per month, to perform a quality assurance function on the content moderation process, to ensure that the board is not only seeing the edge cases, and to compensate for any inequities in the petitioning process. These randomly selected cases should be pulled from: (1) the pool of non-exhausted Facebook appeals and (2) the pool of content takedowns, such as intellectual property disputes, for which internal appeals are not available. 38
Including randomly selected cases will ensure that the board is educated on and aware of decisions being made in the run-of-the-mill cases, rather than only having a view into the edge cases. Random review will serve two purposes. First, it will ensure fairness. As we understand it, not all users are necessarily aware of the various appeal offerings, nor do all users have the resources (education, language ability, etc.) to go through the appeals process. Including a random sample of these cases will ensure that these members of the community are also heard by the board. Second, it will serve as a quality control process. The board will be looking to ensure that content was appropriately tagged for violating a particular Community Standard and that the takedown was justified.
Cases generated by random sample will skip the first stage of the case selection process, but Selection Panels will still review for frivolous cases and compare with the wider set of potential cases before passing these cases on to Decision Panels. 39
2. How to Petition
Petitioners will be able to file petitions related to content that was removed or left up during the Facebook content moderation process. (This will include content takedowns that resulted in an account or Facebook Page being disabled.) Petitioners should file petitions to the board through topic-specific forms. For example, if a petitioner's content was removed because it violated the Hate Speech Community Standard, the petitioner would fill out the Hate Speech form. As part of their petition, petitioners should have the option to request a change or clarification of the Facebook Community Standards.
Petition forms should be structured and detailed to ensure that the board has the information and context they need to make informed decisions, as well as to create some minimal hurdle to reduce the overall volume of petitions. An example form is included in the Appendix.
38 Facebook, Community Standards Enforcement Report.
39 Subsection IV.B elaborates on these procedures.
C. Selection Process
Given the challenges posed by the large volume of appeals that are submitted every day, we propose a threetiered selection process. In the first tier, appeals to the board are reviewed by an Elevation Team which will be comprised of permanent staff members. Members of the Elevation Team select some number of cases to be reviewed by the board. In the second tier, a rotating panel of board members (a Selection Panel) will choose a subset of the cases recommended by the Elevation Team to present to the larger board for decision. Finally, a Decision Panel comprising a portion of the board members will deliberate on all cases recommended by the Selection Panel, and ultimately reach a decision on each case. Each tier of this proposed selection process is described in greater detail in this subsection.
3-TIER SELECTION PROCESS
CONTENT APPEALS
Facebook employees review content
moderation decisions on appeal.
ELEVATION TEAMS
Elevation Teams,
comprised of full-time staff
members, recommend
cases for board review.
SELECTION PANELS
Rotating panels of board
members select which cases the
board will decide.
DECISION PANEL
A panel of three board members
decides each case.
01
02
03
1. Tiers of the Selection Process
a. Elevation Teams
Elevation Teams will recommend cases for board review. Elevation Teams should be able to join similar cases together at this stage, to ensure the board has full insight into a given issue. For example, if multiple petitions concern the same piece of content or related pieces of content, they should be joined together before being sent to the Selection Panel.
We believe that Elevation Teams should be comprised of full-time staff members who report to the Chair of the Board and whose work is overseen by a board committee. In order to ensure fair consideration of appeals across different content categories and geographic regions, the staff members should collectively have content-level expertise across all appealable categories, and proportionately represent the eight core geographic regions. This can be achieved in two ways: Teams can be divided by region with content-level experts on each regional team, or teams can be divided by content type with representatives from each region on every team.
Organizing teams by region will arguably allow for greater range of language capabilities, as well as more effective consideration of region and culture-specific appeals, particularly when local or regional context is important to the appeal. For example, this would be especially true when judging whether or not a piece of content is "newsworthy" in a particular region. Having content-level experts on each regional team (e.g., experts on hate speech, bullying, violence and graphic content, etc.) should allow the team to collectively make nuanced decisions on different types of content. However, compared to an organizational model where Elevation Teams are organized first by category and then by region, this regional model makes it somewhat more difficult for Elevation Team members to choose cases representing the most significant undecided issues within each category type to bring to the Selection Panel.
Organizing Elevation Teams by category is advantageous in that it enables each team to gain nuanced contentlevel expertise. For example, an Elevation Team focused on hate speech would review all appeals of content taken down for a hate speech violation, and would be able to compare the relative significance of different hate speech appeals, selecting those that are more controversial or broadly representative of wider trends. While each content-focused Elevation Team would be comprised of staff members from every region, it is clear that these teams would be unable to integrate region-specific understandings to the same extent as regional elevation teams.
Since the primary purpose of the Elevation Teams is to filter through appeals to present to the board, we believe that members of the Elevation Teams should be chosen by and accountable to the board itself. We view the Elevation Teams as separate from Facebook's content moderator teams: That is, Elevation Team members should not also be content moderators, and they should work independently from Facebook. Having board members each select a number of staff members to work on the Elevation Teams would help ensure geographic and professional diversity, mirroring the diversity of the board itself.
The required number of Elevation Team staff members will depend heavily on the number of petitions the board receives. We estimate, however, the potential need for more than a hundred Elevation Team members. Let us assume that only 20 percent 40 of users appeal their final determination by Facebook—likely an underestimate, unless Facebook introduces significant friction into the appeals process. Even with that conservative assumption, 60 full-time staff members reviewing petitions for 35 hours per week would have to sort through 27 petitions an hour to keep up with our estimated number of incoming non-spam petitions. To achieve a still aggressive but more manageable rate of 10 petitions per person per hour, the Elevation Teams would need over 150 full-time staff members. 41
Moreover, the number of cases that the Elevation Team recommends to the Selection Panel will vary with the total volume of appeals and the size of the board itself. If the board had 60 members for example—already more than Facebook is recommending—the Elevation Teams might collectively send no more than 90 pieces of content to each twice-monthly Selection Panel, which in turn would select no more than 20 pieces of content to be heard by Decision Panels. 42
b. Selection Panel
Cases would then go to a Selection Panel, a rotating subset of board members who decide which cases should be brought to the entire oversight board. Members of the Selection Panel will be board members who rotate onto the Selection Panel on a monthly or bi-monthly basis. We propose a Selection Panel of three members, who represent different regions and have expertise in different subject areas. In that way, the Selection Panel is not unfairly biased towards any one region or subject area for a particular month. The rotational aspect of the Selection Panel will also help ensure that the panel brings a diverse set of cases to the overall board.
The Selection Panel should forward a diverse set of cases on to Decision Panels. First, a small percentage of cases should come from the random sample, as opposed to from Elevation Teams (e.g., 10 percent of all cases forwarded to the Decision Panel). Second, the selection of all cases should be subject to minimum target percentages by geographic region, petitioner type, and violation category. We discuss these targets in more detail in the next subsection.
40 See, e.g., Theodore Eisenberg, "Appeal Rates and Outcomes in Tried and Nontried Cases: Further Exploration of Anti-Plaintiff Appellate Outcomes," Journal of Empirical Legal Studies 1, no. 3 (2004), https://perma.cc/SV5P-H3K3 (noting that 21 percent of cases with a definitive judgment for the plaintiff or defendant are appealed in the U.S. federal court system).
41 These estimates are based on Facebook's Community Standards Enforcement Report from May 2019. For January through March 2019, across all violation categories except for spam, Facebook decided to keep down 3,363,500 pieces of content that were appealed. Dividing this by three gives a per-month estimate of 1,121,167. Given a volume of 1,121,167 pieces of non-spam content eligible for appeal per month, and assuming only 20 percent are actually appealed to the board, we estimate that Elevation Teams would need to sift through 224,233 petitions each month. Given that volume of petitions, 150 Elevation Team members spending 35 hours per week would thus each have to go through an average of 11 appeals per hour. Since Facebook's published appeals data does not include second-level reviews, this number may fluctuate downward, but since this data also does not include reporter appeals and unappealable categories of content, the number could also conceivably fluctuate upwards.
42 The case numbers here represent the maximum that a 60-person part-time board could reasonably consider. Given an estimate of each case requiring 8 hours of member attention and a member being able to spend half of his or her time on the case itself (and the other half on case selection, board administration, and other tasks), 60 board members spending 8 hours per week and sitting on 3-judge decision panels could hear a maximum of 40 cases per month. That caseload would equal just 0.02% of the total pool (224k).
The Selection Panel's choice whether or not to refer a case to the Decision Panel should be public to the extent possible. For non-referrals, at least the geographic region, petitioner type, and violation category should be published. For referrals, the panel should also publish which of the four guiding criteria provided the basis or bases for the selection decision.
c. Decision Panels
The Decision Panels will be comprised of three board members not currently serving on the Selection Panel. A Decision Panel will not participate in the selection of its own cases, instead hearing all cases referred to it by the Selection Panel, in order to ensure adequate diversity and objectivity in its decision-making process. Where appropriate, a Decision Panel may elect to dispose of certain cases on a summary judgment basis—that is, without the presentation of additional evidence—rather than requiring full review. 43
2. Basis for Selection
a. Distributive Considerations
To protect the board's legitimacy, all judges and staff considering which cases to elevate and select should consider three key dimensions of representativeness: geographic region, petitioner type, and violation category.
Geographic Region:
Case selectors should aim to select cases in rough proportion to the distribution of users across different regions of the world. If the majority of cases heard by the board arose in any one country or continent, that would fatally compromise the global legitimacy of the board. On the other hand, adhering to requirements to select numbers of cases strictly proportionate to the user populations of each country would be unworkable and hamstring the case selection process. Measuring geographical diversity at the level of regions or continents would provide more flexibility and workability to selectors.
Selectors could consider one or both of two types of user population measures: (1) the distribution of platform users across different regions of the world and (2) the distribution of petitioners across different regions of the world. Prioritizing the distribution of users may further perceived legitimacy, but prioritizing the distribution of petitioners may better serve procedural fairness. At the same time, focusing on the distribution of petitioners may over-sample certain populations with better information about and access to appellate rights and exacerbate structural bias against petitioners from under-served linguistic groups. Accordingly, we recommend aiming for regional diversity in proportion to user population, rather than petitioner population.
Petitioner Type:
Case selectors should ensure that minimum proportions of cases raised by individual content posters, flaggers, and targets reach the board, alongside cases raised by Facebook and other institutions such as non-profits, companies, and governments. To preserve perceptions of procedural fairness and actual legitimacy, no one type of petitioner should dominate the cases heard by the board. We focus here on the petitioner category, including both individuals (posters, flaggers, and targets of content) and non-individuals (non-profit organizations, governments, companies, and Facebook itself). Although diversity of other petitioner characteristics also warrants consideration—no one race, gender, age range, sexual orientation, etc., should dominate the
43 A case decided on a summary judgment basis would bypass the usual board procedures, described in Section IV. Instead, the Decision Panel should issue a short order with its decision.
conversation—the board's institutional design risks systematically under-sampling certain petitioner types unless they receive programmatic attention. For instance, if the board hears only cases raised by petitioners who want content to be restored—and none by petitioners who want content to be removed—lopsided rulings will result.
Selecting cases without regard to whether or not individual users' voices are being drowned out by betterfunded companies and NGOs would imperil the board's legitimacy and impair procedural fairness. Adding procedural friction to the petitioning process is essential for meaningfully filtering the vast body of internal appeals down to a scale and into a form that a handful of Elevation Teams can manually review. However, companies, NGOs, and governments will generally have more ability than individuals to navigate lengthy forms. Even if petitioning requires only filling an unstructured text box, better-resourced institutions will have more capacity than would lone individuals to persuasively articulate why the board should take their case. Accordingly, requiring some proportion of cases presented to come from individual users who posted or flagged content—or are targeted by the disputed content—is necessary. Otherwise, operating via the path of least resistance, selection bias may shut these individuals out.
Equally importantly, if Facebook itself dominates the board's docket, that would fatally undermine the board's legitimacy as an independent voice. While Facebook will have special insight into what controversies most impact Facebook users, divide Facebook's content moderators, and deserve emergency escalation, it cannot equally represent the multiplicity of perspectives brought to the table by other individual and institutional actors.
Violation and Sanction Category:
Case selectors should enable the board to hear cases from a broad variety of Community Standards categories rather than focusing narrowly on one or two issue types, such as bullying or adult nudity. Some Community Standards categories will naturally receive more attention from the board than others. For instance, hate speech would fairly account for more cases heard by the board than violence and graphic content. Facebook users appeal more than 27 percent of removals of hate speech, compared to around 0.5 percent for removals of violence and graphic content. 44 This makes sense as a function of both the complexities of Facebook's relevant hate speech Community Standards and users' attachments to expressing what they see as political opinions. However, a board that never hears a graphic content case will not represent procedural fairness for any of the users whose approximately 147,100 internal appeals of graphic content decisions were denied in the first three months of 2019. 45
44 Calculated using statistics from Facebook's Community Standards Enforcement Report, for January through March 2019. 45 Ibid.
FACEBOOK FIRST-LEVEL POSTER APPEALS: RATES
Calculations based on Facebook's Community Enforcement Report, May 2019.
b. Mechanism: Targets, Quotas, or Intangibles
In order to ensure case selector consideration of these dimensions (geography, petitioner type, violation category), specific targets or quotas could guide the Elevation Teams' choices of which cases to present to the Selection Panel or the Selection Panel's choices of which cases to select for review by Decision Panels.
Of course, articulating numerical quotas or targets has some disadvantages. Quotas may reduce the flexibility of selectors to choose the most pressing cases free from other constraints. They also increase the complexity of the selection process, requiring more coordination between Elevation Teams and/or more time dedicated by Selection Panel members to ensuring the math works out.
We believe the benefits outweigh these costs, though. Quotas will ensure that the board actually decides on a diverse set of cases, and they will encourage more coordination between Elevation Teams. Instead of each Elevation Team potentially just picking its top cases in isolation, the teams will have to work together to achieve a mandated configuration.
Given these tradeoffs, we recommend that target percentages operate as minimums for the Elevation Teams but not bind the Selection Panels. Since Elevation Teams have more manpower, are dedicated to board business full-time, and are picking larger numbers of cases at a time, they will be better able to navigate the algebraic logistics of ensuring minimum levels of representation than the few board members sitting on a given month's Selection Panel. To help keep Selection Panels somewhat accountable to these diversity considerations, their decisions to refer or not refer cases to Selection Panels should be made public, or at least information about each case's geographic region, petitioner type, and violation category.
c. Guiding Criteria
Case selectors (both Elevation Teams and Selection Panels) should prioritize cases that (1) raise important undecided issues, (2) reveal considerable variance between moderators, (3) involve potential miscarriages of justice, and (4) conflict with the board's prior precedent and/or governing principles.
Raise Important Undecided Issues: The significance of a particular undecided issue or set of content should be the most important criteria selectors consider. Clarifying how the Community Standards should be interpreted when their application to a piece of content is unclear is one of the board's fundamental functions. The analogy to a U.S. judicial framework would be an issue of first impression. This criterion incorporates how often a particular piece of content or substantially similar pieces of content are posted, flagged, and removed. Therefore, access to these metrics will be key for meaningful and efficient case selection.
Reveal Considerable Variance: When the same or substantially similar pieces of content are treated differently by large numbers of moderators, that not only suggests an area where the Community Standards may be ambiguous and in need of clarification, but it also potentially a identifies a gap in Facebook's enforcement policy. The U.S. judicial analogy would be a circuit split, in which lower courts disagree on how to interpret a certain principle. For this criterion, access to how moderators decided to remove or restore disputed content will be important. This would help selectors, as well as the board members ultimately deciding on a case, pinpoint where disagreement arose and tailor their recommendations accordingly.
Potential Miscarriages of Justice: Where a selector feels strongly that an appealed content decision was deeply wrong—even if other selectors feel that it was right—that may point to a close issue that calls for the board's intervention. This may be particularly likely when the consequences of a content decision are especially severe. This criterion would enable the board to act when members feel that moderators made a grievous error, that a particular piece of content has fundamental importance, or that there should be an exception to a Community Standards rule given its unintended consequences.
Conflict with Precedent and/or Governing Principles: As described in Section V, we believe the board should be able to set its own precedent. Where content moderators take down content inconsistently with past board precedent, board review is warranted. Likewise, selectors should also consider conflict with the board's own Constitution or "Guiding Principles" (to the extent they exist) as a reason to hear a case.
D. Information Required about Facebook's Appeals Process
The process of selecting cases requires granular issue-tagging of content takedowns and appeals, data to shed light on the magnitude of certain content takedown petitions, and potentially an expansion of the appeals process.
When a petition is submitted for board review, the case selectors should be able to see what Community Standards category the content violates (or is alleged to violate) at the most granular level possible. Assuming that content moderators are provided with detailed decision trees to guide their decisions, 46 the board should be able to see which decision tree was applied to the piece of content being petitioned, and—if possible—how
46 See The Economist, "The unacknowledged legislators of the online world," June 15, 2019, https://perma.cc/29PP-3BJ5.
it was applied. This categorization will be critical for compliance with category thresholds (to ensure diversity of cases) through the case selection process. The decision trees will also provide needed context for individuals selecting cases to be heard by the board, as well as aiding Decision Panels in their assessment of the cases they hear.
Furthermore, to aid the Elevation Teams and Selection Panels, the board should have access to data indicating how many times a particular piece of content has been flagged or appealed by users. Additionally, the Elevation Teams will need to know which users and pieces of content have satisfied the exhaustion requirement (i.e. have gone through the full Facebook appeals process where available) before petitioning the board.
Finally, we recommend that a full appeals process be available for all content types, if it is not already. Assuming that all exhausted cases would be eligible for board review, an expanded appeals process would mean that petitioners must expend more effort before their case reaches the board. This, in turn, will minimize the volume of petitions that the board receives, helping with the challenges of scale that we anticipate.
IV. Procedures
Clear and effective procedures are essential for the legitimacy of the social media oversight board. This Section lays out the process the board should follow once an issue is selected for full board review. First, we outline the general timeline for the board's process. Second, we explain how the board will announce an issue publicly and solicit comments from individuals directly affected and outside stakeholders, where appropriate. Third, we consider what should be included in the record for the panel, the governing standards and principles that the panel should apply, as well as the makeup of the panels. Finally, we discuss written opinions, procedures for en banc review, and necessary steps to ensure public transparency.
A. Overview: Timeline
The board should resolve issues expeditiously. The board will likely be viewed as more legitimate if it is able to quickly review cases and provide public guidance. Memes, viral stories, and misinformation move fast. A slow response time may undermine the effectiveness of the board's decisions. Nonetheless, well-researched and reasoned decisions take time.
Facebook should set a timeline by which a three-member panel must make and publish an opinion after an issue is announced. This timeline should allow enough time for deliberation, without letting the issue languish on the board's case list. While dependent on the scale of the board and its caseload, the time from selection to decision could be targeted to around 30-45 days. The board should publicly announce an issue it has taken under review on its website. After an issue is announced, staff will solicit and collect comments from the original poster, anyone who believes themselves injured by the posting, from user advocate third parties, regional and/or subject matter experts, and from Facebook. This information should be collected expeditiously, while providing enough flexibility in the timing for anyone interested in responding. (The board might consider requiring all comments within, say, 14 days, while extending that period for particularly complicated issues that involve multiple regions, individuals, or pieces of content.)
While the information is collected, staff will set a date for a conference for the panelists. Once comments are collected, they will be distributed to panelists.
Comments Solicited and Collected
Comments Distributed to Panelists
Decision Written and Circulated
Issue
Announced
Conference
Set
Panel
Conference
Decision Posted
Publicly
The panelists should discuss the case in a "Panel Conference," which would give them an opportunity to verbally discuss the arguments and issues before them. Decisions shall be made by majority vote.
When the panelists have come to a conclusion about how the issue should be resolved, one panelist will be selected to draft the opinion. Once the opinion is drafted, the panelist will circulate it to the other panelists, who may offer suggestions or revisions. If any panelist disagrees with the decision and/or its accompanying opinion, she can draft a dissenting or concurring opinion to accompany the final decision. The opinion should be posted publicly within only a few weeks of the panel conference. Staff will assist the panelists to ensure that the opinion does not include any personally identifying information.
The board may sometimes elect to hear cases en banc—that is, to convene a larger, nine-member panel—to review decisions made by three-member panels. En banc panels would also need to make and publish an opinion as soon as is practically feasible.
As discussed in Section III, the board could consider creating a "crisis channel" for urgent matters. The board should consider carefully the benefits and drawbacks of crisis procedures, including tradeoffs between the need for swift resolution and the procedural safeguards proposed here.
B. Initial Disclosures
1. Announcement
The board should publicly announce on its website an issue it has taken up for review. The issue should be described with enough generality and anonymity to ensure the privacy of all individuals and parties involved. The facts of the issue (e.g., content removed or account left up) should be described in general terms such that it does not identify the poster, target, or details of the content. The announcement must also exclude any personally identifiable information. 47
2. Comments from Individuals and/or Organizations Directly Involved
The board may invite individuals and/or organizations directly involved in an issue to comment after the issue has been announced. The board must solicit comments from the original poster of the content and others affected by the content (e.g., specific targets of harassment, named or seen individuals in a video, affiliated groups, etc.).
Board staff should reach out to all directly affected parties to ensure their voices are heard. Directly affected parties may fill out a standardized form made available to them through Facebook or via email. If directly affected parties cannot be reached, the board will proceed with its processes. If a directly affected party does not want to participate in the comment process, no further action will be taken by the board to include that party.
Once a decision has been made by the board to review a case, no individual or organization has the power to abort the process. As stated in Section III with respect to case selection, proper confidentiality mechanisms should protect the privacy of involved stakeholders.
47 See IV.D.3 for more details on transparency.
3. Comments from Other Interested Parties
The board should solicit comments from groups beyond the specifically interested parties to consider varied perspectives on the issue. Other interested parties may include non-governmental organizations, political groups, religious groups, advocacy groups, and the general public. Comments from these groups might include:
* Descriptions on whether similar content should be permitted, forbidden, etc.
* Suggested decision-making processes to be used for the case in accordance with the Community Standards.
* Suggested changes to the Community Standards based on the content and issue.
To ensure that the ultimate decision is well-informed, after an issue has been announced, the board could open a public portal for comments from individuals, groups, or organizations interested in providing comments on the issue. 48 Of course, an open commenting system does risk inundating the board with information or skewing the board's perspective where comments overwhelmingly come from a single interest group. Indeed, the FCC's recent efforts to repeal net neutrality are instructive; there, the FCC received over 20 million comments, many of them coming from bots. 49
The board would thus need mechanisms to sift through a large volume of comments. For example, the board will need to employ filters for spam and frivolous, repeated comments. Staff could then review all other comments, extracting patterns and common concerns from the public. The board might also consider ways to create friction and limits on responses (e.g., page limits for comments, requiring a Facebook account or email address to comment) to cut down on spam.
To ensure a thorough and fair review process, it is important that the board staff review (though not necessarily respond to) all comments. The board staff would then provide a written synthesis of all public comments to the panel for its deliberation process. While staff would have discretion in drafting the report, it should generally include the following Sections: (a) summary of the comments; (b) descriptions of the key concerns and recommendations brought forth by the public; and (c) patterns and conclusions from the comments. The report should not include any suggestions by the board staff on how to deliberate about the case.
C. Deliberation
1. Panels
All cases should be decided initially by a three-member decision panel, made up of current board members. In contrast to the rules that govern many private arbitration organizations, parties should not have the opportunity to select one of the panelists or request particular members from an approved list. Instead, the appointment of board members to particular panels should be automated and randomized.
48 One model of notice-and-comment in the rulemaking process is that used by U.S. administrative agencies: See Todd Garvey, Congressional Research Service, A Brief Overview of Rulemaking and Judicial Review, March 27, 2017, https://perma.cc/S6VA-W8DL.
49 Glenn Fleishman, "FCC Chair Ajit Pai Admits Millions of Russian and Fake Comments Distorted Net Neutrality Repeal," Fortune, December 5, 2018, https://perma.cc/AG43-BLRC.
At least one appointed panelist should be from the geographic region from which the dispute arose. 50 Conversely, in order to ensure a diversity of viewpoints and to prevent a fragmentation of Facebook's policies by regions, we recommend that no more than two of the three panelists come from the geographic region from which the content originated.
Admittedly, there is a danger that the panelists who are from the country or region from which the post originates will exercise undue influence on their colleagues; the panelists who are not from the same nation or region as the dispute may defer to the panelists who do share that cultural background, assuming that their colleagues are better positioned to come to a reasonable decision. These potential sources of panelist bias likely cannot be eliminated without also sacrificing the effectiveness and knowledge of the panel system. The best solution is to identify and warn against these dangers.
Panelists will typically serve on more than one panel at a time. However, they may accept or decline assignments in order to manage their workload. Panelists should also be permitted to decline particular assignments in instances in which they believe they could not give the matter a fair hearing, either because of a personal, financial, or professional conflict of interest.
The Chair of the Board should develop clear standards for when a matter represents a conflict of interest. For example, if there is a dispute between a student and a university administration with which a board member has an academic affiliation, must that member be recused? Similarly, if a board member has donated money to or volunteered for a political party or non-profit organization in the past, would he or she be permitted to hear a matter involving that party or organization? This report does not offer substantive answers to these questions. However, it is imperative that the board develop clear guidelines. The board could, for example, develop a checklist for "conflicts of interest" that board members can consult if concerned about potential conflicts. 51
2. The Record & Argument
The record should include all relevant material. Panelists should enjoy discretion to admit information into the record that they consider necessary to make a reasoned, well-informed decision. In determining what information is necessary, the panelists should weigh the relevance and probative value of the information against projected costs, delay, and general practicality of gaining access to it. While the panelists have broad discretion to shape the record, they should nevertheless follow a common set of guidelines.
The record should presumptively include the following materials:
* The content in question (e.g., the original post)
* All materials submitted by the directly-affected parties (e.g., the appeals from the original poster)
* Comments from outside parties
50 In cases in which a controversy spans two or more geographic regions, the Chair of the Board can determine which nation or region has the most significant relationship to the reported content. The Chair might adopt something akin to the "most significant relationship" test applied under U.S. conflict of laws rules. See, e.g., Itar-Tass Russian News Agency v. Russian Kurier, Inc., 153 F.3d 82 (2d Cir. 1998) (applying the test in a cross-border copyright infringement case).
51 The board might consider models from other dispute resolution systems for "conflict checks." See, e.g., International Bar Association, IBA Guidelines on Conflicts of Interest in International Arbitration, 2015, https://perma.cc/2D9R-DHQM. The IBA guidelines include "red," "orange," and "green" levels of potential conflicts.
* An operational record from Facebook (e.g., when and why the post was taken down, how much it had been
shared, what happened on appeal, etc.)
* A statement from Facebook that includes:
−− Analysis of the content as governed by the Community Standards as currently interpreted
−− Questions that Facebook requests the panel to answer
−− At its option, Facebook's recommended approach.
The board might also consider establishing a "User Advocate," who would be independent from Facebook and funded alongside the board. Original posters or account holders for issues under review may choose not to participate in a review. Some users might not provide significant background or justification for why a certain policy should be adopted. Some users might not respond in time. Others simply might not care. In those circumstances, a User Advocate could step in and defend the best case position for the user. The User Advocate would be, in a sense, the representative for all Facebook users. We recommend that Facebook study and implement the best practices of other sectors where consumer advocates have been in place for decades, such as in electrical utility regulation. 52
The board should also have access to briefings by relevant subject matter experts. The Decision Panel may ask for briefings on the social, political, and cultural context implicated by a given matter. We recommend that Facebook maintain a roster of subject matter experts who can be called on to provide briefings or consultations on particular matters.
As a general rule, the expert briefings should come from independent scholars, researchers, or consultants unaffiliated with the board or Facebook. However, it may sometimes be appropriate for Facebook to refer the board to its own employees. In particular, Facebook data scientists and operational experts can offer unique insights into the prevalence of content on the platform, the typical behavior of users in relation to that content, and the feasibility of using deranking or other remedies, other than content takedown, across the platform.
In many cases, a briefing from a legal expert knowledgeable in international human rights standards and freedom of expression will be especially important. Keeping in mind that the board is not a judicial body, it is nevertheless essential that its members consult with legal scholars with expertise in international human rights standards, and with particular knowledge in laws related to freedom of expression, access to information, freedom of assembly, and other rights implicated by online content moderation. 53
The board can invite additional interest groups and non-governmental organizations to present written arguments to the panelists. Like amici curiae in a U.S. federal court, outside interest groups can provide valuable substantive knowledge to the decision-makers and ensure that the panel is considering the best possible arguments.
Given the sensitive nature of much of the content at issue, the record will generally not be public. The board will only share descriptions of the relevant issues, being careful to withhold or redact personally identifiable
52 See Adam R. Fremeth, Guy L. F. Holburn & Pablo T. Spiller, "The Impact of Consumer Advocates on Regulatory Policy in the Electric Utility Sector," Public Choice 161, no. 1-2 (2014), 157-181, https://perma.cc/N36D-5B9X.
53 See David Kaye, A/HRC/38/35, Report of the Special Rapporteur on the Promotion and Protection of the Right to Freedom of Opinion and Expression, April 6, 2018, https://perma.cc/EZA9-P72J.
information. Pre-screening of outside groups and rigorous non-disclosure agreements may sometimes be needed to safeguard the privacy of directly affected parties as well as the general integrity of the deliberation process. In some exceptional cases, it may not be appropriate to solicit opinions from outside parties at all, despite the general presumption in favor of allowing them to participate.
3. Governing Standards & Principles
The board should articulate the standards and principles it uses in reviewing issues.
Facebook's Community Standards should presumptively govern the board's decision, as should any "Guiding Principles" or Constitution-like document that the board develops (as described in Section I). The Community Standards are the guiding document for Facebook's internal policy team and guide the decisions made by content reviewers. The Community Standards also publicly set expectations and rules for Facebook users. When the board reviews an issue, members should first review the Community Standards to see how the issue might be resolved based on the text, as understood in the light of the context in which it was drafted.
In many cases, however, the Community Standards alone will not suffice. Where the Community Standards are vague, unreasonable, or unfounded, the board must look elsewhere. The board should look first and foremost to its "Guiding Principles" or Constitution (to the extent they exist). Where Community Standards conflict with the board's "Guiding Principles," the board can and should recommend that the Community Standards themselves undergo revision.
D. Decision
1. Opinions
The outcome of this process will be the board's decision, accompanied by an opinion. Generally, the board's decision will apply and interpret the Community Standards in relation to a piece of content, although other recommendations may flow from the board's decision as well (see Section V).
While the board has significant freedom to determine what standards and principles it should use to make its decision, its written opinion should explicitly state what standards and principles it has considered and how they apply to the issue at hand. In its written opinion, the board should cite to any authorities, sources, and experts used to make determinations, explaining their relevance to the decision. This transparency will contribute to the board's legitimacy. And its reasoning may provide Facebook users with guidance about why the board made its determination and how similar posts might be viewed in the future.
The opinions should not be steeped in legal jargon or require expertise to understand. Rather, anyone reading the opinion should be able to understand the central issue reviewed, why the panelists came to the determination they did, and what this decision means for the future of content (or accounts) similar to the one at issue. Although the board may want to describe the issue in the opinion in general terms, it should ensure the opinions do not include any personally identifying information prior to their publication. The names of specific panelists should not be included on the opinion, but rather the opinion should be signed by the board as a whole. After a decision is made, the relevant Community Standard should be publicly annotated with a citation to the board's opinion.
2. En Banc Review
The structure of rotating, three-member panels allows the board to review a greater number of cases than it could with larger panels or by having the full group weigh in on each case. At the same time, the three-member panels may be ill-positioned to recommend significant changes to Facebook's content policies without the input of their colleagues. Moreover, some issues may be especially divisive and require input from more than just three board members. Nevertheless, asking for review by the full board may be unduly cumbersome and would substantially limit the number of cases that the board could consider each year. Therefore, we recommend that the board develop a system of en banc review using a larger (e.g., nine-person) panel, randomly selected from the board membership.
We recommend that if the three-member panel decides it is divided about an interpretive question that reaches beyond the issue at hand, a petition for en banc review may be filed. Upon receipt of a petition for en banc review, a majority of the en banc panel will determine whether they should re-hear a case that led to the original panel's decision.
3. Transparency
The board should view its constituency as social media users rather than Facebook itself. The board should strive to provide as much transparency and access to information publicly as possible. In addition to creating an initial set of rules promoting transparency, the board should develop a process by which it revisits its transparency policies in order to ensure that its approach adapts to the evolving nature of the board's tasks.
The board should have an online presence distinct from Facebook. The website should operate in multiple languages. The website should include basic information about the board, its procedures, and biographies of its members. The board might consider using government or international organization websites as a model for the level of transparency it should provide. 54 A website would provide significant benefits to the public: it would allow users to understand the process of appealing to the board as well as access to information about prior decisions.
The board's website should also include sections for issues pending review and decisions rendered. The "pending review" section should include descriptions of all issues under consideration (without personally identifiable information). It may also include the option for public comments on the issues. The "decisions rendered" section should include the final written opinion for every case.
The board should exercise caution in describing the content and affected users. Any issue that is reviewed by the board will be magnified on a global scale; it may receive significant press and public attention. Users can often be identified based on a few pieces of information, even when they seek to remain anonymous. 55 While this might be less concerning for public figures, private individuals have a right to privacy even if they post quasipublicly on Facebook.
54 See, e.g., Court of Justice of the European Union, https://perma.cc/JW6E-WU7U; Conseil Constitutionnel (France), https://perma. cc/QFY5-YSNM; International Court of Justice, https://perma.cc/GKZ8-Q9DJ; Supreme Court of India, https://perma.cc/8JUX-VLQW; Supreme Court of the United States, https://perma.cc/CPH8-MJPG.
55 Natasha Singer, "With a Few Bits of Data, Researchers Identify 'Anonymous' People," New York Times, January 29, 2015, https://perma. cc/P65F-63KS.
The board must be cognizant of users' significant interests in privacy and control of their identity. The online community can, at times, "dox" (or identify) users, harass users, and shame users who would have otherwise wanted to remain anonymous. As such, the board should consider what risks it takes in providing contextual user information when writing an opinion and describing an issue.
In our view, the board does not need to post the piece of content (text, photo, video, or otherwise) as part of its issue announcement or written opinion. Rather, a brief, abstracted description of the content at issue should suffice in most scenarios. If the board needs to provide information that could be traced back to the individuals involved in the posting, or if even an abstract description of the content would reveal their identities (e.g., with especially high-profile content), the board must obtain consent of all individuals. This could pose a significant hurdle for transparency in the decisions, which is why the board might err on the side of providing less factual background and more policy-based reasoning in its decision.
V. Implementation of Board's Decisions
This Section considers how Facebook can ensure that the board is effective in carrying out its oversight mandate, as well as enhance the board's legitimacy in the eyes of users and other stakeholders.
We note at the outset that our concerns about the board's authority and the implementation of board decisions are motivated by a longstanding critique of the effectiveness of judicial review in contexts analogous to Facebook's. In the context of agency mass adjudication, leading scholars have documented that case-bycase judicial review can be ineffective at improving systemic problems of mass decision-making. 56 A court may provide lengthy reasoned decisions for isolated cases, but such decisions may have little effect on the accuracy and consistency of frontline decision-making due to sheer caseload pressures. In Facebook's context, these challenges strike us as acute: each of some 30,000 content moderators makes decisions once every few seconds, providing little opportunity for deliberation.
We consider six dimensions that affect the implementation of precedential board decisions. First, we consider the scope of the board's decisions, including whether the board can recommend correcting flaws in Facebook's content moderation policies and procedures that are more likely the source of systematic error. Second, we consider what remedies the board can issue beyond reversing a specific decision. Third, we address the extent to which the board's decisions will be binding on Facebook, including whether the board should have the capacity to issue advisory opinions outside the context of an actual content dispute. Fourth, we consider whether the board's decisions will be binding on the board itself—that is, whether decisions will carry precedential weight. Fifth, we address the board's powers to monitor compliance with its decisions. Finally, we discuss how an annual report by the board could serve the board's oversight mandate.
A. Decision Scope
Facebook can constrain the board's decisional purview to various degrees. The Draft Charter proposes the board focus on reviewing moderator decisions. But in reviewing such frontline decisions, the board will develop insights into the Community Standards and other Facebook policies and procedures. In some cases, the board may conclude that Facebook's policies are themselves inconsistent or unfair, and not just their application to specific disputed content. In such cases, the board should not restrict its decision to specific content decisions rather than addressing underlying flaws or inconsistencies. Indeed, it would undercut the board's perceived legitimacy by suggesting Facebook created the board to offload criticism over tricky, one-off decisions rather than to invite meaningful scrutiny.
To achieve its mandate then, the board needs defined authority to assess a discrete subset of Facebook's policies, procedures, and processes. The relevant basket of policies and procedures will likely change as Facebook's content moderation system itself evolves, but should include the Community Standards and, ideally,
56 See, e.g., Daniel E. Ho, Cassandra Handan-Nader, David Ames, and David Marcus, "Due Process and Mass Adjudication: Crisis and Reform," Stanford Law Review 72 (2019, forthcoming), https://perma.cc/G8XW-4N7C; David Hausman, "The Failure of Immigration Appeals," University of Pennsylvania Law Review 164 (2016), 1177-1238, https://perma.cc/EB9U-XLW2; Jerry L. Mashaw, "How Much of What Quality? A Comment on Conscientious Procedural Design," Cornell Law Review 65, no. 5 (1980), 823-835, https://perma.cc/XX79-VXLD.
content moderator training and perhaps even algorithmic design. Reversing individual take-down or leave-up decisions as inconsistent with the Community Standards is counterproductive if the Community Standards themselves are flawed or if the procedures for enforcing them are ineffective.
Mark Zuckerberg recently suggested the need for third-party oversight for social media standards. 57 And the Draft Charter tentatively proposes a wider scope for the board's review authority in suggesting that "Facebook can incorporate the board's decisions in the policy development process." 58 Accordingly, a number of civil society organizations have called for the board to play "a meaningful role in developing and modifying policies." 59 The board's legitimacy was a top concern:
Providing the board with such policy-setting authority would also help legitimize the board, and ensure it is not viewed as simply a mechanism for Facebook to shirk responsibility for making challenging contentrelated decisions. 60
Endowing the board with authority to review Facebook policies and practices — including, at minimum, the Community Standards — demonstrates that Facebook takes seriously its need for independent review. As discussed below, giving the board authority to review policies and procedures is not the same as giving it power to mandate changes.
B. Remedies
When the board finds that a piece of content violates the Community Standards, what "remedies" can it issue? Can it order remedies that reach more broadly than the particular content in question?
We recommend that Facebook empower the board to issue a wide range of remedies for content violations, recognizing that content deletion is not always the best solution. Even though only content-related takedowns— and not, for example, News Feed rankings—should be appealable to the board, the board should not be so constrained in its choice of remedy. The board should also be able to suggest demoting content in the News Feed algorithm, providing greater disclosure as to source, hiding part of the content (by blurring faces, for example), or other measures short of taking content down.
The board should also be able to use individual cases to recommend changes to the constantly evolving Community Standards (although, as discussed below, those recommendations would be non-binding). For example, the board could provide specific language to update the Standards or ask Facebook to clarify language in a particular Community Standard.
Finally, the board may suggest improvements to content moderator review processes and training or to algorithmic updates, given that changes to these processes will be necessary for effective implementation of the board's decisions. For example, the board might recommend content moderator training after every update to the Community Standards and recommend the inclusion of certain training topics. Similarly, for algorithms,
57 Mark Zuckerberg, "Mark Zuckerberg: The Internet needs new rules. Let's start in these four areas," Washington Post, March 30, 2019, https://perma.cc/Z3JD-JU7W.
58 Facebook, Draft Charter, 3.
59 AfroLeadership et al., Facebook's Draft Charter: Joint Statement, May 2019, https://perma.cc/BX2S-FUAH.
60 Ibid.
the board might suggest specific goals and factors to consider for algorithmic updates, leaving Facebook to coordinate with engineers to update technologies accordingly.
C. Decision Authority on Facebook
We now address whether board decisions should be binding on Facebook with respect to content and the Community Standards.
BOARD'S DECISION AUTHORITY
REBUTTABLE DECISION
BINDING DECISION
(A decision that is binding on Facebook unless Facebook provides a public, detailed, and written response as to why it declines to follow the decision in full or in part.)
(A decision that Facebook must follow or carry out without any discretion to ignore or modify.)
Applies to all content decisions, save for narrow, predefined exceptions
03
02
Applies to Facebook policies and practices, including potential revisions to the Community Standards
ADVISORY DECISION
(A rebuttable decision which the board may issue in response to petitions unrelated to a content dispute.)
01
Our recommendation is three-fold. First, the board's decisions should be binding with respect to content decisions, save for narrow, predefined exceptions. Second, the board's decisions should be rebuttable with respect to Facebook policies and practices, such that Facebook must publicly articulate why it declines to adopt any decision in whole or in part. Third, the board should have authority to provide Facebook with advisory decisions on policy matters, including potential revisions to the Community Standards.
By binding decision, we mean one which Facebook must follow or carry out without any discretion to ignore or modify. By contrast, a rebuttable decision is binding on Facebook unless the company articulates — in a public, detailed, and written response — why it declines to follow the decision in full or in part. Finally, an advisory decision is a type of rebuttable decision which the board may issue in response to petitions unrelated to a content dispute, such as in response to Facebook proposals for revisions to the Community Standards.
Facebook agrees that the board's decisions should be binding as to content. 61 In announcing the idea for an independent review body, Mark Zuckerberg indicated its decisions "would be transparent and binding." 62 Similarly, the Draft Charter indicates board decisions will be "binding on the specific content brought for review." 63
61 Facebook, Draft Charter, 3.
62 Mark Zuckerberg, "A Blueprint for Content Governance and Enforcement," Facebook, November 15, 2018, https://perma.cc/4WBK-Z33P.
63 Facebook, Draft Charter, 3.
We agree that Facebook should be bound by the board's content decisions, both to ensure the board's efficacy at correcting errors and to maintain the board's public legitimacy. Facebook must carefully consider circumstances under which it declines to follow a board decision. The Draft Charter suggests one such circumstance by indicating the board "will not decide cases where reversing Facebook's decision would violate the law." 64 Cases may nonetheless arise where the board makes a decision that might direct Facebook to violate laws in some countries, particularly in countries with restrictive speech regimes. Other unforeseeable cases may arise where Facebook's other obligations, such as to its shareholders, may contravene the board's decisions. In these circumstances, Facebook must publicly articulate in writing how implementing the board's otherwise binding decision contravenes Facebook's legal obligations or capacities.
We believe binding authority will lend legitimacy to the board and credibility to Facebook. Chris Hughes' sharpest criticism of the board proposal was that Facebook's compliance would be voluntary. 65 By binding itself to follow the board's decisions on content, Facebook can partially mitigate this critique. In addition, by giving the board binding authority, Facebook signals to stakeholders — including board members themselves — that the oversight board is a worthwhile and meaningful project.
Yet a binding decision alone is not enough if Facebook can easily render that decision moot by revising or eliminating the relevant Community Standard. For this reason, the board should have higher-order, governing principles that cannot readily be revised (see "Governing Principles," Section I). Moreover, Facebook may need to change its process for revising the Community Standards, perhaps by decreasing the frequency of revisions or by involving the board in the revision process. Indeed, Facebook might seek the board's input on proposed revisions via an advisory opinion, as discussed above.
That said, there are certain advantages to non-binding decisions. Non-binding international treaties, for instance, can provide parties valuable flexibility by avoiding haggling over specifics. 66 Similarly, the rise in non-binding mediation as an alternative to civil litigation suggests there is value in having a third party issue a reasoned opinion, even if it does not have binding weight. 67 Some bodies have a quasi-binding authority that combines the advantages of both. Of particular relevance is the model of the inspector general. 68 Government agencies generally are not bound to adopt an inspector general's recommendations, but they are required to respond to such recommendations in writing. 69 Based on this literature, the board can effectively oversee Facebook's policies and practices via targeted, non-binding decisions.
We recommend that the board's decisions regarding Facebook policies and practices be non-binding but require Facebook's detailed response. This arrangement gives the board the flexibility to propose structural
64 Ibid.
65 Chris Hughes, "It's Time to Break Up Facebook," New York Times, May 9, 2019, https://perma.cc/79PW-XVC7.
66 Gregory Shaffer and Mark Pollack, "Hard vs. Soft Law: Alternatives, Complements and Antagonists in International Governance," University of Minnesota Law School Legal Studies Research Paper Series Research Paper No. 09-23, 713, https://perma.cc/PE39-F7CU
67 Jeffrey A. Brimer et al., "Using Negotiation and Mediation to Resolve International Franchise Disputes," International Journal of Franchising Law 11, no. 6 (2013), 3-26.
68 Glenn Fine, "Seven Principles of Highly Effective Inspectors General," Center for the Advancement of Public Integrity, May 2017, https://perma.cc/GD4U-E5SQ.
69 See Kathryn A. Francis, Congressional Research Service, Statutory Inspectors General in the Federal Government: A Primer, Jan. 3, 2019, https://perma.cc/VYX6-PGAN. For an example at the municipal level, see New York Police Department, Office of the Inspector General, NYPD's Official Responses to Reports from the Office of the Inspector General, https://perma.cc/HV4R-7B5Y.
changes and allows Facebook to balance them against fiscal, legal, and other considerations. In turn, Facebook can bolster both its own credibility — and the board's legitimacy — by adopting the board's recommendations despite having no binding obligation to do so and by articulating its rationale for declining particular recommendations.
Finally, the board should have authority to issue advisory opinions when Facebook seeks guidance or interpretation outside of a given content dispute. The Draft Charter envisions such a capacity for the board, in that Facebook "may request policy guidance from the board." There is wide debate over whether adjudicative bodies should issue advisory opinions in the absence of an actual dispute — U.S. federal courts, for instance, cannot, while courts in other countries and certain U.S. states do. 70 The key advantages of advisory opinions is their proactive nature and flexibility, since they offer answers to broad, complex questions without awaiting claims, at considerable savings in time and cost. 71 Critics note that many disputes are highly context-specific, such that issuing opinions in a factual vacuum is inappropriate. But the evolutionary speed for online content militates in favor of giving Facebook and the board the opportunity to be in direct dialogue about emergent issues. This is particularly true given that Facebook regularly revises the Community Standards, which has the potential to undercut past board decisions.
D. Precedential Value of Board Decisions
In addition to deciding whether the board's decisions should bind the company, Facebook must decide the extent to which decisions will bind the board itself. Does a given decision bear only on the current content dispute, or does it contribute to a precedential body of "jurisprudence" that the board must draw from in deciding future cases?
Facebook's Draft Charter provides that the board should consider "consistency with other issued opinions" as a guidepost in reviewing content disputes, 72 suggesting Facebook envisions some precedential authority. We recommend that Facebook explicitly give the board authority to determine the extent of the precedential authority of its content-related decisions. This retains the board's flexibility to cabin particular decisions that are incredibly context-specific. In addition, we recommend that the board have the authority to review previous decisions en banc to overturn precedent that has proven incorrect or unworkable.
Precedential decisions are generally thought to promote consistent application of standards, since decisionmakers must consider not only the facts and parties before them but also the precedents and potential ramifications of a given decision on future cases. 73 Similarly, precedential decisions give parties — such as Facebook users and content moderators — interpretive benchmarks to gauge whether posts violate the
70 Lucas Moench, "State Court Advisory Opinions: Implications for Legislative Power and Prerogatives," Boston University Law Review 97 (2017), 2243-2301, 2246, https://perma.cc/7SF5-SQRS.
71 James R. Rogers and Georg Vanberg, "Judicial Advisory Opinions and Legislative Outcomes in Comparative Perspective," American Journal of Political Science 46, no. 2 (April 2002), 379-397, https://perma.cc/NU69-8BNW.
72 Facebook, Draft Charter, 5.
73 See generally John Hanna, "The Role of Precedent in Judicial Decision," Villanova Law Review 2, no. 3 (April 1957), 367-384, 377-378, https://perma.cc/B6BJ-R5AV; Daniel B. Levin, "Fairness and Precedent," Yale Law Journal 110, no. 7 (2001), 1295-1302, https://perma. cc/XCM8-UCMD; Luca Anderlini et al, "Legal Efficiency and Consistency," Georgetown University Working Paper, July 2018, https:// perma.cc/X7SP-CLZ6.
Community Standards. Precedent also serves the logistical purpose of eliminating the need for the board to hear similar cases multiple times.
Precedential decisions have their drawbacks, however. Notably, precedential decisions might lock the board into bad decisions, until the board is willing to review them en banc. 74 By contrast, non-precedential decisions have the advantage of simplicity. If the board is only deciding whether a certain post should be taken down or stay up, the panel has no need to consider unforeseen consequences on future cases. Reviewing each case afresh also gives the board considerable flexibility to tailor each ruling to the specific facts of a given appeal.
Our recommendation reconciles the aims of consistency and flexibility. We draw on such models as the U.S. Merit Systems Protection Board, which hears appeals regarding government employee terminations and primarily issues non-precedential decisions but has authority to issue precedential ones, too. 75 With latitude to choose which of its decisions have precedential authority, the board can marry the procedural fairness of adjudication with the flexibility of an administrative process. 76 This maximizes the board's capacity to correct individual content moderation errors — including errors that are so context-specific as to be of minimal precedential value — and also to decrease future content moderation errors by authoritatively interpreting the Community Standards to reduce ambiguities.
E. Monitoring
Effective and legitimate oversight can only be achieved if Facebook actually adheres to the board's decisions. A major hurdle to compliance with the board's decisions, and more generally with the Community Standards, is the volume of content on Facebook's platform and the operational complexity of reviewing this content. An effective monitoring function would keep the board informed about Facebook's challenges and about the level of compliance with the board's decisions. We believe that, to be effective, the board will need to monitor three different areas: (1) updates to the Community Standards, (2) content moderator adherence to board decisions, and (3) algorithmic adherence to board decisions.
1. Updates to the Community Standards
As Facebook itself acknowledges, the Community Standards "continuously evolve." 77 While these changes are necessary given the dynamic nature of social media content, these revisions risk adversely affecting compliance with the board's decisions. The revisions might flatly contradict board precedent or, more likely, might result in new content moderation rules that indirectly undermine the board's existing understanding of the Community Standards. While we considered the possibility that the board would not proactively monitor updates to the Community Standards, that would leave the board in the dark about whether Facebook is adhering to its decisions (unless of course Facebook sought an advisory opinion from the board on a proposed Community Standards revision). We also considered the possibility of requiring Facebook to report on all Community
74 Brandon J. Murrill, Congressional Research Service, The Supreme Court's Overruling of Constitutional Precedent, September 24, 2018, 8, https://perma.cc/7XZK-C4NB.
75 5 C.F.R. § 1201.117, "Board decisions; procedures for review or reopening," 1994, https://perma.cc/S4U7-WA2U.
76 Robert Vaughn, "The Opinions of the Merit Systems Protection Board: A Study in Administrative Adjudication," Administrative Law Review 34, no. 1 (Winter 1982), 25-58, https://perma.cc/94QX-NLND.
77 Facebook, Community Standards Enforcement Report.
Standards revisions, using metrics defined by the board. However, this risks inundating the board with too much information, potentially converting its Community Standards review function into a rubber stamp.
Instead, we recommend that the board have the authority to order periodic or ad hoc reports on revisions to the Community Standards, as the board deems necessary. For example, these reports might discuss the impact of Community Standards revisions on the accuracy and consistency of content reviewer and algorithmic decisions. These reports would thus complement and inform the board's power to recommend revisions, via rebuttable order, to the Community Standards and to issue advisory opinions at Facebook's request.
2. Content moderator adherence to board decisions
To ensure effective implementation of the board's decisions, the board must also stay abreast of how content moderators are implementing their decisions on the ground. Because Facebook relies heavily on human reviewers, who review millions of pieces of content every year, there is a significant risk that the board's decisions will be implemented inconsistently or not at all.
To combat these risks, we recommend that the board be able to order periodic reports related to content moderator review (including the internal appeals process) and training. In doing so, the board may specify which metrics to track, as well as suggest improvements to Facebook's internal enforcement protocols.
3. Oversight of Algorithms
Most of Facebook's content moderation is done through automated filtering rather than human decisionmaking. 78 If the board is to have power over content moderation policies, it must have some power to review those algorithms and recommend changes. To be sure, reviewing algorithms and recommending changes to them requires a level of technical expertise beyond that possessed by many who might serve on the board. Nevertheless, to better understand exactly how Facebook is controlling and magnifying the content on its platform, some oversight of the algorithms must be within the purview of the board. Moreover, making recommendations as to the reach of certain content may serve as an intermediate measure between taking down content and leaving it up. Many details as to how algorithms could be reviewed or tweaked will need to be worked out. But oversight of the algorithms must be within the purview of the board.
F. Annual Report
Board members will develop a unique perspective on Facebook's rapidly evolving content moderation system. An annual report would help to distill the board's insights from a wide array of cases and would ensure open communication between Facebook and the board about the overall efficacy of Facebook's content moderation policies.
78 For example, while automated filtering algorithms are responsible for take-downs of 96% of all nudity in violation of the Community Standards content, they are responsible for the removal of just 65% of hate speech content. See Cade Metz and Mike Isaac, "Facebook's A.I. Whiz Now Faces the Task of Cleaning It Up. Sometimes That Brings Him to Tears," New York Times, May 17, 2019, https://perma.cc/M5JD-U68E; Mark Zuckerberg, Facebook post, May 10, 2019, https://perma.cc/J25V-V8XL.
The Chair of the Board should shepherd the annual report process. While the content of each annual report should be left to the board's discretion, reports might include: a summary of the board's recent decisions, reflections on Facebook's successes and failures in implementing those decisions, recommendations for improvements to the Community Standards and Facebook's content moderation policies, and/or lessons for other social media platforms.
Facebook would undoubtedly stand to benefit from the insights of the board. So would the board, whose legitimacy depends in large part on its ability to check Facebook and assure members of the public that their concerns are being addressed. But the benefits of an annual report extend beyond the Facebook platform. As the first real attempt at a social media oversight board, Facebook's board will face—and hopefully overcome— unexpected challenges, with far-reaching consequences for other social media platforms. It would be unfortunate not to memorialize those lessons, especially as other social media platforms contemplate oversight boards and seek to improve their content moderation policies.
Conclusion
Facebook's efforts to build a social media oversight board are now well-underway. The company has solicited and reviewed feedback from hundreds of different communities globally, as summarized in its "Global Feedback" report, 79 and is preparing to launch a board in the near future.
Our findings and recommendations reinforce an emerging consensus about what the board should be. Like other commentators, we prioritize independence, transparency, and diversity for an external oversight board. And, as input across international communities has revealed, it is critical that the board have the power to influence Facebook's policy development. Yet, just as the Global Feedback report found no "silver bullet" in solving the dilemma of an effective board, this Policy Lab research report reveals the tradeoffs and ambiguities in policy choices, ranging from the size and composition of the board to modes of appeal. Developing an oversight board is no simple task, but doing so is crucial to fulfilling the principles of responsible free expression that allow social media to realize its full potential while avoiding now well-recognized social harm.
Throughout the board development process, Facebook has considered an array of oversight models, seeking one that is effective in guaranteeing due process, the validity and salience of the information considered, procedural fairness, transparency, and efficient disposition of cases. The proposal we have crafted here accommodates these diverse values. Our report highlights the costs and benefits relevant to our proposal and details a plan for implementation.
We applaud Facebook for its willingness to address the problems of content moderation and develop an appellate mechanism for content moderation that has strong institutional legitimacy. As other social media platforms contemplate reforming their content moderation policies, Facebook has the unique opportunity to lead by example. If designed poorly, the board runs the risk of serving as a quasi-judicial rubber stamp on a system plagued by deep structural problems. If implemented well, the board may help to institute genuine reform and systematic improvement, based on transparency and accountability.
79 Facebook, Global Feedback.
Appendix
A. Example Hate Speech Petition
Below is an example of a structured petition form for the Content Standards Hate Speech category — chosen because this category generates the highest rates of appeal. 80 Please note that a user will have to log in to their Facebook profile to submit this form for identity and authentication purposes; thus, the form does not explicitly ask for a user name and link to Facebook profile. If a user's Facebook profile is disabled, they will still be able to submit the petition and their associated Facebook profile will be logged for the case selection process. Ideally an individual without a Facebook profile (i.e., someone victimized by content that does not have a Facebook profile) would also be able to submit a petition for review by the board, but we are not aware of technical mechanisms available to authenticate individuals and prevent spam and impersonation. To prevent spamming, we also recommend that each Facebook account be capped at a specified number of active petitions at any given time. Finally, we recommend the inclusion of a question regarding the privacy expectations of the petitioner because this can serve as a helpful piece of information in the case selection process (for example, if there is an interest in having precedent announced and explained publicly) and because it could inform how much information is included when the board publicizes whether or not a particular case is referred to a Decision Panel.
80 Facebook, "An Update on How We Are Doing At Enforcing Our Community Standards," Facebook Newsroom (blog), May 23, 2019, https://perma.cc/H6C5-QNU2.
HATE SPEECH VIOLATION BOARD PETITION
If the piece of content that you would like the board to consider violated (or is believed to be a violation of) the Hate Speech provisions of the Facebook Community Standards, please fill out this form.
BACKGROUND INFORMATION: First we need to collect some basic information about your petition to the board.
1. Link to the content that was removed or the content that you believe should be removed from the platform:________________________________________
2. Date that content was posted: ______________________________________
3. Date that content was removed (or first flagged):_______________________
4. Was your Facebook account disabled as a result of this piece of content: [Yes | No]
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a. If so, please explain why you posted this content. Provide some background on who you are.
6. Is your image or name included in the content you are petitioning? [Yes | No]
a. If so, please describe your involvement in the creation of the content.
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a. If so, please describe how you are victimized by the content.
8. Did Facebook interpret the Hate Speech provisions of the Community Standards correctly when they removed this content (or when they decided to allow the content to remain on the platform)?
a. Yes, but the Content Standards should be changed because this decision is wrong.
b. No, Facebook did not correctly apply the Community Standards to this piece of content.
c. No, my issue does not involve an interpretation of the Community Standards.
9. [OPTIONAL] If you believe the Hate Speech Community Standards should be changed, please include an excerpt of the relevant text of the Community Standards and explain how it should be modified and why: __________________________________________________________
_______
10. Do you want to keep this case to be kept confidential? [Yes | No]
CONTEXTUAL INFORMATION: Help us better understand why you think an incorrect decision was made. The more information you can provide in response to the below questions, the better we will be able to assess your petition and its eligibility to be heard by the board.
11. Who is being attacked or targeted by this piece of content? Is it a specific individual?
12. Why is this individual or group of individuals being attacked or targeted? On what account are they being targeted? Are they being attacked or targeted because they possess a particular characteristic (i.e., religion, race, ethnicity, religious affiliation, sexual orientation, gender, a disability, etc.)?
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Is there any additional information you would like us to know to process your petition? [Open Text Field]
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2012 IL App (2d) 110155-U No. 2-11-0155 Order filed April 11, 2012
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
CANDACE T. PYDO,
) Appeal from the Circuit Court
) of Du Page County.
Plaintiff-Appellant,
)
)
v.
) No. 10-L-529
)
DOMINICK'S FINER FOODS, LLC,
) Honorable
) John T. Elsner,
Defendant-Appellee.
) Judge, Presiding.
______________________________________________________________________________
JUSTICE HUTCHINSON delivered the judgment of the court. Justices McLaren and Burke concurred in the judgment.
Held: The trial court properly determined that defendant had no constructive notice of water on the floor of its establishment and that defendant did not have a duty to provide a slip-free surface. We affirmed the judgment of the trial court.
ORDER
¶ 1 Plaintiff, Candace T. Pydo, brought suit against defendant, Dominick's Finer Foods, LLC, alleging that she suffered physical injury as a result of defendant's alleged breach of its standard of care. Defendant moved for summary judgment, which the trial court granted. Plaintiff appeals, contending that the trial court erred when it concluded first, that defendant had no constructive notice of water on the floor, and second, defendant did not have a duty to provide a slip-free surface. For the reasons that follow, we affirm.
¶ 2 The pleadings, depositions, admissions, and affidavits reflect the following. On March 24, 2009, plaintiff was shopping for groceries at defendant's establishment. Upon completion of the shopping, plaintiff went to register #5 to check out. During the check out process, plaintiff left to retrieve a bag of ice from the freezer located at the front of defendant's establishment. Plaintiff walked to the area of register #6 to obtain a plastic bag and went to the freezer located in front of register #9. Plaintiff stood on a floor mat in front of the freezer, but then returned to register #5 and told the cashier that the ice bags she wanted were not available. As plaintiff walked back to the freezer, but before she reached the floor mat, she slipped and fell. Plaintiff claimed that she did not observe any water but that she felt wetness on her skin. Plaintiff fell at approximately 4:29 p.m.
¶ 3 Ammarah Shah, the cashier at register #11, was the first to approach plaintiff after the fall. Shah testified she noticed one nickel-sized drop of water and a second very small drop of water next to it near plaintiff. Shah did not know the source of the water drops. Beth Curran, the store manager, inspected the area following the fall. Curran observed two to three nickel-to-quarter-sized drops of water approximately four to five feet from the freezer. Curran did not know the source of the water. After the fall, Rutilo Randa, a utility clerk, observed two drops of water near where plaintiff fell. Maria Selvaggi, the cashier at register #5, observed drops of water around the area where plaintiff fell, but that was approximately 5 to 10 minutes after plaintiff had fallen.
¶ 4 The record reflects that inspections of the floor were performed hourly. The inspections consisted of employees walking throughout the store looking for water or other hazards. Randa performed an inspection between 3:53 and 4:08 p.m., and he specifically recalled inspecting the area in front of the freezer. Randa testified there was no water or ice on the floor at the time of his inspection. According to the surveillance footage, at approximately 3:58 p.m., Shah walked by the freezer area to her register. Shah testified there was no water or ice on the floor when she walked past the freezer.
¶ 5 On August 14, 2009, plaintiff filed suit against defendant on the basis of premises liability. As amended, plaintiff alleged that defendant allowed a pool of water to remain on the floor; failed to inspect the premises; failed to warn of the pool of water on the floor; failed to clean and remove the pool of water on the floor; and failed to provide a reasonably slip-free surface in an area that defendant knew or should have known was frequently wet.
¶ 6 On September 17, 2009, defendant filed its answer and affirmative defense. Defendant denied the material allegations of the amended complaint. Defendant alleged that plaintiff owed a duty of care for her own safety and failed to exercise reasonable care by being inattentive and unobservant to the surrounding conditions; failing to observe and avoid conditions that were open and obvious; failing to keep a proper lookout; and being otherwise careless or negligent. Alternatively, defendant alleged that any injuries plaintiff suffered were caused by her sole negligence or that she contributed to the cause of her injuries.
¶ 7 On November 15, 2010, defendant filed a motion for summary judgment. Defendant argued that the water on the floor was not present as a result of a store employee, and plaintiff failed to establish actual or constructive notice. Defendant also argued that plaintiff failed to present any evidence that a slip-free surface was required by law and failed to present any evidence that the floors at defendant's establishment were inappropriate for a business setting.
¶ 8 On December 8, 2010, plaintiff filed her response to defendant's motion for summary judgment. Plaintiff argued that a reasonable mind could find defendant vicariously liable for its employees' failure to notice the water on the floor and that defendant was put on constructive notice of such water. Plaintiff asserted that defendant breached its standard of care by negligently performing an inspection of its floors in that more frequent patrolling of the floor was required because the establishment was crowded with customers.
¶ 9 On December 21, 2010, defendant filed its reply. Defendant countered that plaintiff failed to present any evidence supporting her version of events and highlighted various inaccurate statements alleged by plaintiff. For example, plaintiff claimed that, from 3:53 p.m. until 4:29 p.m. (when plaintiff fell), store employees were at or around the freezer. Defendant countered that the store surveillance footage established that no employees could be seen near the freezer from the time of the last store inspection, 3:53 p.m., until the time of plaintiff's fall at 4:29 p.m. Defendant argued that its inspection of the subject area 30 minutes before plaintiff's fall was appropriate and sufficient monitoring to prevent a finding of constructive notice.
¶ 10 On January 13, 2011, the trial court conducted a hearing on defendant's motion for summary judgment. Following arguments of the parties, the trial court granted summary judgment as to all allegations and counts in favor of defendant. In its ruling, the trial court stated the parties agreed that an employee of defendant's did not create, or was not responsible for, the water being on the floor. The trial court also stated that no employee of defendant had actual notice of the presence of water on the floor. The trial court further stated:
"The evidence is that neither party knows the source of the water. Neither party knows the amount of time that the water was on the floor; that [defendant] did perform inspections of the floor, and there was no water on that floor.
There were cashiers. One cashier said that another cashier's [station] could see the area of the fall.
That this is not sufficient to create constructive notice. Even when accepting the conflicting testimony that the one cashier may have been able to see the area of the fall, *** we don't know the amount of time the water was present.
*** And the duties of the cashier, it's uncontested, were to be a cashier and remain at their station."
¶ 11 Plaintiff filed a timely notice of appeal, contending that the trial court erred when it granted summary judgment in favor of defendant. Plaintiff challenges the trial court's conclusions that defendant had no constructive notice of water on the floor and that defendant did not have a duty to provide a slip-free surface.
¶ 12 Summary judgment is proper when the pleadings, depositions, and affidavits demonstrate that no genuine issue of material fact exists and that the moving party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2010). In ruling on a motion for summary judgment, the trial court is to determine whether a genuine issue of material fact exists, not try a question of fact. Williams v. Manchester, 228 Ill. 2d 404, 417 (2008). A party opposing a motion for summary judgment "must present a factual basis which would arguably entitle" that party to a judgment. Allegro Services, Ltd. v. Metropolitan Pier & Exposition Authority, 172 Ill. 2d 243, 256 (1996). In adjudicating a summary judgment motion, a trial court must construe the evidence strictly against the movant and liberally in favor of the nonmoving party. Jackson v. TLC Associates, Inc., 185 Ill. 2d 418, 423-24 (1998). We conduct a de novo review of an order granting summary judgment. Jackson, 185 Ill. 2d at 424, citing Espinoza v. Elgin, Joliet & Eastern Ry. Co., 165 Ill. 2d 107, 113 (1995).
¶ 13 To recover damages based on a negligence claim, the plaintiff must establish the existence of a duty owed by the defendant, a breach of that duty, and an injury proximately resulting from that breach. Pavlik v. Wal-Mart Stores, Inc., 323 Ill. App. 3d 1060, 1063 (2001) (citing Miller v. National Ass'n of Realtors, 271 Ill. App. 3d 653, 656 (1994)). In the present case, neither party disputes that defendant owed a duty of reasonable care to plaintiff, a business invitee. A business owner breaches its duty to an invitee who slips on a foreign substance if: (1) the substance was placed there by the negligence of the proprietor; (2) its servant knew of its presence; or (3) the substance was there a sufficient length of time so that, in the exercise of ordinary care, its presence should have been discovered, i.e., the proprietor had constructive notice of the substance. Pavlik, 323 Ill. App. 3d at 1063 (quoting Hayes v. Bailey, 80 Ill. App. 3d 1027, 1030 (1980)). Although a plaintiff is not required to prove his or her case at the summary judgment stage, evidentiary facts must be presented to support the elements of the cause of action. Helms v. Chicago Park District, 258 Ill. App. 3d 675, 679 (1994). Plaintiff failed to do so in this case.
¶ 14 Plaintiff claimed that she did not observe any water but that she felt wetness on her skin. Curran, defendant's store manager, inspected the area following the fall and observed two to three nickel-to-quarter-sized drops of water approximately four to five feet from the freezer. Curran did not know the source of the water. Defendant's other employees acknowledged the drops of water after plaintiff's fall, but none knew the source of the water. Thus, there was no clarity or certainty as to what caused the floor to be wet. Nevertheless, where a business invitee is injured by slipping and falling on the premises and there is no way of showing how the substance became located on the floor, liability may be imposed if the defendant or its employees had constructive notice of its presence. Thompson v. Economy Super Marts, Inc., 221 Ill. App. 3d 263, 265 (1991). Constructive notice exists if the substance was there for a long enough time period that the exercise of ordinary care would have made it known. Thompson, 221 Ill. App. 3d at 265. Liability cannot be based on guess, speculation, or conjecture as to the cause of the injury. Bermudez v. Martinez Trucking, 343 Ill. App. 3d 25, 30 (2003). Proximate cause can only be established if it is reasonably certain the defendant's acts caused the plaintiff's injury. Bermudez, 343 Ill. App. 3d at 25 (quoting Salinas v. Werton, 161 Ill. App. 3d 510, 514 (1987)).
¶ 15 The record reflects that inspections of the floor were performed hourly. Randa performed an inspection between 3:53 and 4:08 p.m., and he specifically recalled inspecting the area in front of the freezer. Randa testified there was no water or ice on the floor at the time of his inspection. According to the surveillance footage, at approximately 3:58 p.m., Shah walked by the freezer area to her register. Shah testified there was no water or ice on the floor when she walked past the freezer. Plaintiff offered no evidence to show that there was any water on the floor before she fell or evidence suggesting how long any water might have been on the floor that should have been discovered in the exercise of ordinary care. Under these circumstances, constructive notice, and thus liability, did not attach to defendant. See Tomczak v. Planetsphere, Inc., 315 Ill. App. 3d 1033, 1040 (2000).
¶ 16 Plaintiff asserts, however, that the period of time between the last inspection and the time of her fall at approximately 4:29 p.m. was sufficient to constitute constructive notice. We disagree.
In a case involving constructive notice, the time element to establish constructive notice is a material factor. Hayes v. Bailey, 80 Ill. App. 3d 1027, 1030 (1980). The plaintiff bears the burden to establish that the foreign substance was on the floor long enough to constitute constructive notice to the proprietor of the establishment. Id. Plaintiff admitted she did not see the water near the freezer. Plaintiff herself did not know how long the water had been there. Plaintiff presented no evidence that anyone knew there was water, what caused the water to be present, or how long the water was present. The best person who would have had the opportunity to discover and observe the water on the floor was plaintiff, who had walked to the freezer to retrieve a bag of ice; stood on a floor mat in front of the freezer; returned to the register; and then walked back to the freezer right before she fell. Under these circumstances, liability cannot be imposed upon defendant for the presence of a substance that no one had knowledge of immediately prior to plaintiff's fall. See Tomczak v. Planetsphere, Inc., 315 Ill. App. 3d 1033, 1040 (2000) (finding no constructive notice of the presence of water despite the plaintiff's assertion that water was twice present on the floor within 45 minutes).
¶ 17 In the absence of any evidence establishing constructive notice or a causal connection between plaintiff's injuries and defendant's conduct, we conclude that the trial court properly granted summary judgment in favor of defendant.
¶ 18 In so holding, we reject plaintiff's alternative claim that the water near the freezer was a recurring incident. Initially, we note that plaintiff's claim was not presented to the trial court, so the trial court had no opportunity to make any findings or rulings on the matter. See Lawrence & Allen, Inc. v. Cambridge Human Resource Group, Inc., 292 Ill. App. 3d 131, 136 (1997) (stating that, upon appellate review of a trial court's summary-judgment determination, the appellant may (1) refer to the record only as it existed at the time the trial court ruled, (2) outline the arguments made at the time, and (3) explain why the trial court erred when it granted summary judgment). Plaintiff's claim that Randa testified that it was not unusual to discover water there is insufficient to rise to any level of a recurring condition putting defendant on constructive notice. Moreover, neither plaintiff nor defendant knew the source of the water or the cause of the alleged recurrences so as to reasonably guard against it. We also reject plaintiff's contention that the trial court erred when it determined that defendant did not have a duty to provide a slip-free surface. Although plaintiff's brief argues that defendant had a duty to provide a "safe" floor, the issue presented at summary judgment concerned a "slip-free" floor. Other than an allegation, plaintiff failed to establish that a duty to provide a slip-free floor exists and that defendant's floor was not properly slip-resistant. See American National Bank & Trust Co. of Chicago v. National Advertising Co., 149 Ill. 2d 14, 26 (1992) (stating that "unless a duty is owed, there is no negligence").
¶ 19 For the foregoing reasons, we affirm the judgment of the circuit court of Du Page County.
¶ 20 Affirmed.
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May 25, 2022
BY ELECTRONIC MAIL: email@example.com AND FIRST CLASS MAIL
Ms. Sarah Mellish, Chair Manchester Zoning Board of Appeals Manchester Town Hall 10 Central Street Manchester-by-the-Sea, MA 01944-1399
Re: Application for Comprehensive Permit – School Street, Manchester
Dear Chair Mellish:
As you know, this firm represents the Manchester Essex Conservation Trust ("MECT") in the above-referenced matter. Earlier today, I submitted a new comment letter from our civil engineer, John Chessia, P.E., regarding the Applicant's revised drainage plans and calculations. Through this letter I would like to briefly address the Applicant's proposal to connect its on-site drainage system to a culvert under School Street that discharges onto Town-owned land across the street. Additionally, MECT remains troubled by the lack of details and analysis for the proposed extensions of the municipal water and sewer systems, under Route 128, to the project site. As the omnibus permit granting authority under Chapter 40B, the Board's public hearing, which will presumably close in a just a few weeks, is the Town's only opportunity to evaluate, and impose conditions on, these critical public utility extensions.
1. The Applicant's Proposed Diversion of Stormwater Onto Town Land, and the Installation of a Drain Line within School Street, are Unlawful.
The Applicant is proposing an overflow drainage connection from a stormwater facility labelled "bio-retention area / rain garden #2" to an existing 18" culvert that runs underneath School Street. The stormwater facility is proposed to be adjacent to the Project's entrance on School Street. Plan Sheet C-103.2 clearly shows a proposed pipe that will divert runoff from the facility to the culvert. The connection to the culvert will necessarily require excavation of School Street, and a perforation of the culvert in order to make the physical connection. The culvert headwall on the project site is located within a wetland area, and was presumably installed to prevent flooding of School Street during periods of seasonal high water within the wetland. The culvert's outlet is located on Assessor's Parcel 43-21, which is owned by the Town. School Street is a public way, and therefore is also owned by the Town.
To our knowledge, the Applicant has no easement rights either in the School Street rightof-way or in Parcel 43-21 that would allow the construction and installation of a drainage line
May 25, 2022
and manhole and the artificial channeling of runoff onto town land. It is well established that the extraordinary powers under Chapter 40B do not extend to forcing municipalities to relinquish real property interests, or to convey easements to developers. See, Zoning Bd. of Appeals of Groton v. Housing Appeals Comm., 451 Mass. 35 (2008); 135 Wells Avenue, LLC v. HAC, 478 Mass. 346 (2017). We are not aware of any prescriptive rights the Applicant could claim either. Certainly, there would be no such right to install a pipe in School Street, since a pipe does not exist there today, and the artificial discharge of stormwater into the culvert would exceed the scope of the culvert's utility under existing conditions, which is likely to prevent the adjacent wetland from overtopping onto School Street. In any event, the Applicant has provided no legal foundation to support such an unprecedent intrusion into the Town's real property interests.
2. The Adequacy of Municipal Sewer and Water Capacity Must be Reviewed Now, Not After the Permit is Issued.
Your civil engineering peer reviewer, Beals and Thomas, appropriately commented that given the unique circumstances including a 3,700-foot water line extension across Route 128 and a 75' elevation change from the School Street entrance to the proposed building, the Applicant should demonstrate that there will be adequate water pressure for domestic and fire flow needs. The Applicant responded as follows:
Due to schematic nature of the building and absence of required water/fire demands it is not possible to complete the design of the booster pump currently. The applicant is agreeable to a comprehensive permit condition which would require that adequate water pressures could be produced as a condition to receipt of a building permit.
Beals and Thomas stated that it did not "take exception to this approach." 1
Deferring review of the adequacy of necessary infrastructure until after a zoning permit is issued may be acceptable for conventional zoning projects, but it does not work under Chapter 40B. The law is clear under Chapter 40B that zoning boards cannot subject a developer to a post-permit review and approval process, the reasoning being that it would frustrate the "comprehensive" permitting function of the statute. Specifically, the state Housing Appeals Committee ("HAC"), which hears developer appeals from local comprehensive permit decisions, has consistently held that conditions that expose the applicant to future discretionary decisions by other boards and officials are prohibited. HD/MW Randolph, LLC v. Milton ZBA, HAC No. 2015-03, 2018 MA Housing App. LEXIS 4, *116-117, citing, LeBlanc v. Amesbury, HAC No. 2006-08, at p. 23 (Sept. 27, 2017 Ruling) ("improper conditions subsequent are 'conditions that reserve for subsequent review matters that should have been resolved by the Board during the comprehensive permit proceeding. Such conditions include, for example, those requiring new test results or submissions for peer review, and those which may lead to disapproval of an aspect of a development project.'"). The HAC has been particularly vigilant lately in scrubbing such
1 Beals and Thomas also concurred with the Applicant's suggestion that a comprehensive Construction Management Plan ("CMP") could be reviewed after the permit is issued. The Applicant has specifically declined to provide a CMP for Beals and Thomas' review, just as it is refusing to extend the public hearing deadline to accommodate the Town's review of the water and sewer extensions.
conditions from locally-approved comprehensive permits. See, e.g., Weiss Farm Apartments, LLC v. Stoneham ZBA, HAC No. 2014-10, p. 76, 2021 MA HOUSING APP. LEXIS 5 (Mar. 15, 2021) ("this condition also constitutes an improper condition subsequent, as it allows the Board to make a subsequent decision regarding whether the parcel is suitable for development. See Milton, No. 2015-13, slip op. at 56, n.33").
The Board should not assume that the Applicant will consent to conditions imposed on the permit that give the Board or other municipal officials the authority to deny approvals that would have the effect of stalling or blocking the Project. In the event of an appeal from the Board's permit (which seems likely), the Applicant will almost certainly challenge such conditions, and the HAC will almost certainly strike those conditions.
3. Zoning Board Review of Water and Sewer Extensions is Customary Under Chapter 40B.
The Applicant has also stated that its water and sewer infrastructure will be reviewed by the state Department of Environmental Protection, seeming to suggest that no local approvals are required and therefore there is nothing for the Board to consider during this hearing. The fact, however, is that water and sewer connections and extensions are regulated by the Town of Manchester, through the application of state laws and local regulations and policies. The water and sewer distribution systems are owned and maintained by the Town, through its Department of Public Works. Thus, the Board can, and should, scrutinize the feasibility and propriety of extending these utilities to the project site, and consider what impacts these extensions will have, financial or otherwise, on the Town.
The HAC, which is normally protective of developer interests, has recognized that zoning boards can require developers to provide mitigation for problems associated with their proposed projects, particularly in the context of off-site water and sewer extensions. In the seminal case of Hilltop Preserve L.P. v. Walpole ZBA, HAC No. 00-11 (April 10, 2002), the HAC stated "sorting out what mitigation is required because of the proposed development and what is necessitated by existing problems requires detailed factual analysis." Here, it will be impossible for the Board to "sort out" what mitigation would be appropriate until the Applicant provides the capacity analyses and construction details that we advised the Board should require in our April 27, 2022 comment letter.
Any further discussion of this issue is probably academic, because (i) the deadline to close the public hearing is quickly approaching, (ii) the Applicant is unwilling to consent to an extension of that deadline to accommodate further review of its plans, and (iii) the Applicant has refused to prepare and submit the capacity studies for water and sewer that are needed to evaluate the feasibility of the proposed extensions and service connections. Thus, our recommendation is for the Board to consider the Applicant's unfortunate position on these critical design issues as it weighs conditions and waiver denials that could address the concerns with capacity and construction feasibility.
Manchester Zoning Board of Appeals
May 25, 2022 Page 4 of 4
Thank you for your attention to these matters.
Very truly yours, /s/ Daniel C. Hill
Daniel C. Hill
Enc.
cc: Client
Town Counsel
Manchester Board of Selectmen
Manchester Department of Public Works
Beals and Thomas
Applicant
2018 MA Housing App. LEXIS 4
December 20, 2018
No. 2015-03
MA Housing Appeals Committee
Reporter
2018 MA Housing App. LEXIS 4 *
HD/MW RANDOLPH AVENUE, LLC ; v. ; MILTON BOARD OF APPEALS
Core Terms
wetland, site, has, was, foot, zoning, driveway, slip opinion, local concern, stormwater, parking area, modify, traffic, space, cost, fire chief, buffer, uneconomic, bylaw, loop, roadway, snow, site plan, sidewalk, proposed project, parking space, subsidize, setback, municipal, vegetate
Panel: Shelagh A. Ellman-Pearl, Chair; Joseph P. Henefield; Marc Laplante; Rosemary Connelly Smedile; James G. Stockard, Jr.
Opinion
DECISION
Appellant's Counsel
Andrew E. Goloboy, Esq.
Dunbar Law, P.C.
197 Portland Street, 5th Floor
Boston MA 02114
Counsel to Interveners Jacob and Christina Carlin
Robert W. Galvin, Esq. Galvin & Galvin, SP 10 Enterprise Street, Suite 3 Duxbury, MA 02332
Appellant's Witnesses
Paul Holland Lynne Sweet Robert Engler James Burke, PE Daniel Dulaski, PhD, PE
Scott Morrison, PWS, RPSS, SE
Kevin Hastings, PE, LEED AP
Interveners' Witnesses (Carlini)
Jacob W. Carlin Janet Carter Bernardo, PE
Board's Counsel
John P. Flynn, Esq.
Doris A. MacKenzie Ehrens, Esq.
Murphy, Hesse, Toomey & Lehane, LLP
300 Crown Colony Drive, Suite 410
P. O. Box 9126
Quincy, MA 02169
Counsel to Interveners Joseph R Mullins and Charlene Mullins
Dennis E. McKenna, Esq.
Robert C. Buckley, Esq.
Riemer & Braunstein, LLP
Three Center Plaza
Boston, MA 02108
Board's Witnesses
Jeffrey S. Dirk, PE, PTOE, FITE,
Scott D. Turner, PE, AICP, LEED AP ND
Cheryl Tougias, AIA, LEED AP
Maurice M. Pilette, PE, FSPE, CFPS, CET-IV
John J. Grant, Jr.
Joseph [*2] Prondak
John E. King
Joseph W. Lynch
John A. Kiernan, Esq.
Glenn Pavlicek
Joseph R. Mullins
I. INTRODUCTION AND PROCEDURAL BACKGROUND
This is an appeal pursuant to G.L. c. 40B, § 22 of a decision by the Milton Board of Appeals granting a comprehensive permit with conditions to the Appellant HD/MW Randolph Avenue, LLC (HD/MW). On or about November 6, 2014, HD/MW applied to the Board for a comprehensive permit to build a development consisting of 90 residential rental units in two buildings on land at 693-711 Randolph Avenue in Milton. The Board held hearings on 11 days between December 2, 2014 and June 17, 2015. By decision filed with the town clerk on July 30, 2015, the Board granted a comprehensive permit for the construction of 35 units subject to numerous conditions. Exh. 76.
On August 18, 2015, HD/MW filed an appeal with the Housing Appeals Committee. A conference of counsel was held on September 8, 2015. With encouragement from the presiding officer, the parties engaged in mediation, but later reported that mediation was not successful. The presiding officer thereafter granted in part the motion of Jacob and Christina Carlin to intervene to "participate with regard to: 1) [*3] the issue of storm water and snow melt runoff as it may specifically affect their property only, including location of the proposed snow storage area near the boundary of their land; 2) the 50-foot buffer and grading issues with respect to erosion, infiltration, runoff, and light and noise impacts on their property; and 3) other direct impacts of light and noise from the Project on their property." HD/MW Randolph Ave., LLC v. Milton, No. 2015-03, slip op at 11 (Mass. Housing Appeals Committee Dec. 9, 2015 Ruling on Motions to Intervene ...). In the same ruling, the presiding officer granted in part the motion to intervene of abutters Joseph Mullins and Charlene Mullins "with regard to the direct impacts of the hillside excavation and construction of the retaining walls on their properties." Â 1 Id.
Pursuant to 760 CMR 56.06(7)(d)(3), the parties negotiated a pre-hearing order, which the presiding officer issued on December 6, 2016. Thereafter, the developer and the Board each filed motions for summary decision. The Board's motion was denied. The developer's motion was granted with respect to Condition [*4] 17, which was struck, and was denied with respect to Conditions 18 and 19, and regarding whether the conditions rendered the project uneconomic as a matter of law. We concur with the presiding officer's ruling on the summary decision motions. In preparation for hearing, the parties submitted pre-filed direct testimony of 20 witnesses. In April 2017, the Committee conducted a site visit and four days of hearing to permit cross-examination of witnesses. A total of 121 exhibits was entered into evidence. Following the presentation of evidence, the parties submitted post-hearing briefs and reply briefs.
II. FACTUAL BACKGROUND
HD/MW received a determination of project eligibility under the New England Fund Program of the Federal Home Loan Bank of Boston (NEF), dated May 27, 2014 and reaffirmed on November 3, 2014, from the Massachusetts Housing Finance Agency (MassHousing) pursuant to 760 CMR 56.04. Pre-Hearing Order, § 11,1 5. The developer has satisfied the project eligibility requirements of 760 CMR 56.04(1)(b)-(c) and has agreed to become a limited dividend organization, thus satisfying 760 CMR 56. [*5] 04((1)(a). Pre-Hearing Order, § II, P 16.
HD/MW proposes to build 90 rental units, of which 23 units will be low or moderate income units. Exhs. 24-4; 76, p. 5. The development will consist of two buildings on a 7.81 acre site on the westerly side of Randolph Avenue, a four-lane state highway (Route 28). The property is located in both Residence A and Residence C zoning districts. Pre-Hearing Order, § II, PP 14, 15. The neighborhood is predominantly residential, with a convenience store and church located within walking distance. Milton Hospital, the Milton Library and Town Hall are slightly less than a mile from the proposed development. Public bus transportation on Route 28 provides access to the MBTA red line. Exhs. 24-4; 29; Tr. III, 85-86.
Residential properties owned by the Carlins and property owners named Bautista abut the project site on the southerly side. The residential properties owned by the Mullinses and other property owners named Shea, Kingston and Lombardi abut the site to the west. The Town Department of Public Works (DPW) and the homes of several residents abut the property to the north. A bordering vegetated wetland resource area, identified by a Massachusetts [*6] Department of Environmental Protection (DEP) Superseding Order of Resource Area Delineation (SORAD), lies on the project site behind the houses fronting on Randolph Avenue from the DPW
1 The Mullins, however, chose not to participate in the evidentiary hearing or briefing of this appeal. The Board submitted testimony of Mr. Mullins as part of its case.
property to the Carlin property. Other wetland resources are located in the north corner of the lot and in isolated pockets elsewhere. Exhs. 17; 18; 24-4; 56; 59; 83, P 31; 101, P 3. The wetlands comprise 1.93 acres of the property, leaving 5.88 acres of buildable land. According to James Burke, PE, the project engineer, the project is designed so that 75 percent of the site area will remain open space. The only frontage for the development is on Randolph Avenue. Exhs. 24-6; 24-13(C); 55; 56; 79; 83, P 2; 86, P 5; Pre-Hearing Order § II, P 18.
The project proposes a 24-foot wide access driveway from Randolph Avenue to cross the wetlands extending in an upward slope to the two apartment buildings and the exterior parking areas in the upland portion of the site. A culvert under the wetland crossing is proposed to address the impact of the access driveway over the wetland area. The wetland area will be disturbed, both on a temporary and permanent basis; the developer proposes wetland replication that will [*7] exceed the area of permanent disturbance. Exhs. 24-4; 86, P 6. HD/MW's engineering report described the site topography as ranging "from a high elevation of 160 located along the westerly rear property line to a low elevation of 108 located to the south… The properties on Randolph Avenue are at elevation 120 and slope to the west toward a wetland that is partially located on the property." Exh. 17, Project Narrative, p.1.
The proposed project consists of two buildings: Building 1 (13,600 square feet, 200 feet long and 62 feet wide), will contain 30 units and 30 garage parking spaces. Building 2 (23,500 square feet, 300 feet long and 70 feet wide), will contain 60 units and 54 garage parking spaces. Total parking of 156 spaces, or 1.7 spaces per unit, will also include exterior parking areas, one of which is a five-car parking area near the property line with the Carlin property. The development will include one-, two- and three-bedroom units. The buildings are proposed to have a height of 45 feet. Exterior lighting for the parking and building is planned to be dark sky compliant. The project includes a small recreation area. The developer proposes a stormwater management system [*8] intended to comply with the DEP Stormwater Management Handbook. Exhs. 10; 17; 24-4; 59; 86, PP 9-11, 15, 19; Tr. IV, 113. The design of the buildings provides for breaking the exterior appearance of the buildings into sections defined by varying roof lines and projecting building elements to reduce the appearance of the overall length of the buildings. Exh. 24-4.
III. ECONOMIC EFFECT OF THE BOARD'S DECISION
When a developer appeals a board's grant of a comprehensive permit with conditions, the ultimate question before the Committee is whether the decision of the Board is consistent with local needs. Pursuant to the Committee's procedures, however, there is a shifting burden of proof. The appellant must first prove that the conditions in the aggregate make construction of the housing uneconomic. See 760 CMR 56.07(2)(a)3.; Board of Appeals of Woburn v. Housing Appeals Comm., 451 Mass. 581, 594 (2008); Haskins Way, LLC v. Middleborough, No. 2009-08, slip op. at 13 (Mass. Housing Appeals Comm. Mar. 28, 2011). HD/MW argues, relying on testimony of its experts and documentary evidence, that it has provided sufficient [*9] evidence that the Board's conditions and denials of waivers in the decision render the project uneconomic. The Board contends that the developer has failed to make its prima facie showing.
A. Return on Total Cost Analysis
1. The Developer's Presentation
HD/MW alleges that numerous conditions and denials of waivers cumulatively render the project uneconomic because it cannot achieve a reasonable return on this project. Under 760 CMR 56.00 and the DHCD Guidelines, G.L. c. 40B Comprehensive Permit Projects, Subsidizing Housing Inventory (Dec. 2014) (Guidelines), HD/MW must prove that:
any condition imposed by [the] Board in its approval of a Comprehensive Permit, brought about by a single factor or a combination of factors, … makes it impossible … for [HD/MW] to proceed and still realize a reasonable return in building or operating such Project within the limitations set by the Subsidizing Agency on the size or character of the Project, or on the amount or nature of the Subsidy or on the tenants, rentals, and income permissible, and without substantially changing the rent levels and unit sizes proposed by the Applicant.
760 CMR 56. [*10] 02: Uneconomic; Exh. 1 (Guidelines), p. 1-5. See G. L. c. 40B, § 20. We apply the Guidelines' methodology for analyzing "reasonable return" for a rental housing project, a Return on Total Cost (ROTC) analysis. 2 Exh. 1, pp. 1-5, 7. The ultimate question is whether the projected ROTC for the project as conditioned by the Board's decision fall shorts of the minimum reasonable return in the Guidelines (the economic threshold). See Autumnwood, LLC v. Sandwich, No. 2005-06, slip op. at 3 (Mass Housing Appeals Comm. Decision on Remand Mar. 8, 2010); 511 Washington Street, LLC v. Hanover, No. 2006-05, slip op. at 9, 12-14 (Mass. Housing Appeals Comm. Jan. 22, 2008).
If the ROTC of the development as proposed is below the ROTC economic threshold, as is the case here, the developer must also show that the Board's conditions render the project significantly more uneconomic than the project proposed in the developer's application for a comprehensive permit. See Cirsan Realty Trust v. Woburn, No. 2001-22, slip op. at 3 (Mass. Housing Appeals Comm. Apr. 23, 2015); Haskins Way, supra, No. 2009-08, slip op. at 18; [*11] Avalon Cohasset, Inc. v. Cohasset, No. 2005-09, slip op. at 13 (Mass. Housing Appeals Comm. Sept. 18, 2007).
In contending that many of the Board numerous conditions contribute to rendering the project uneconomic, HD/MW relied on testimony of three witnesses. Paul Holland, the manager of HD/MW, testified that he is an engineer and experienced builder in the development and construction of residential real estate as well as the financing and operation of rental properties, although this is his first project to build a development under Chapter 40B. Exh. 83, P 1; Tr. II, 108-09. He stated that the project approved by the Board was both uneconomic and significantly more uneconomic than the proposed 90-unit project. He provided pro forma analyses of the economics of the developer's proposed 90-unit development and the Board's approved 35-unit development. The pro forma for the 35-unit development took into account the design changes required by the Board's decision, including, most significantly, reduction in the number of units, reduction in buildable area, change in number and design of buildings, looped roadway, sidewalk and parking requirements, and requirement to contribute [*12] additional land and tear down a single family house to achieve adequate frontage on Randolph Avenue, but did not include costs associated with MEPA review, if that is required by the Board's conditions. Exhs. 83, PP 8; 42-47; 83-2; 83-3.
HD/MW also proffered the testimony of Lynne Sweet, a housing consultant, who testified regarding the rental market analysis and expected rents she had prepared for the proposed development and the project as conditioned by the Board's decision. Her market analysis evaluated comparable rental developments in and near Milton and included details explaining the comparison of the subject property and the comparable properties she identified. Exh. 84-3. She provided an opinion regarding the appropriate rental rate for one-, two- and three-bedroom units for the proposed 90-unit project and for one- and two-bedroom units for the approved 35-unit development. Exh. 84, P 3; Tr. III, 60. During the hearing, she also addressed rents for a 35-unit project as conditioned if it included threebedroom units. Tr. III, 83, 86-88.
Robert Engler, the developer's economic expert with experience in the permitting and development of affordable housing, relied on the evidence [*13] of Mr. Holland and Ms. Sweet to conduct his ROTC analysis. He calculated the ROTC for the 90-unit proposed project to be 5.93% and for the 35-unit project as conditioned to be 4.13%. In his rebuttal, he acknowledged minor corrections based on testimony of the Board's witness, Joseph Mullins, but stated that the modifications adjusted the difference between the proposed and conditioned project by less than one basis point, resulting in a ROTC of 5.88% for the proposed project and 4.10% for the project as conditioned. Exhs. 85, PP 5-9, 22; 104, P 5; 104A, p. 5; 104-B, p. 5. He stated that the minimum economic threshold for the project would be 6.84%, based on the Guidelines' requirement to add 450 basis points to the applicable 10-year Treasury rate. Exhs. 1, pp. I-5, 7; 85, P 13; 104-A, B. He stated that the return for the approved project would be 2.74 basis points (2.74%) below the minimum economic threshold, and would be 178 basis points (1.78%) below the return for the proposed project. He concluded that such a reduction in ROTC was significantly more
2 We have previously stated that that while "DHCD Guidance does not have the force of law because it was not promulgated as a regulation," in considering statutory and regulatory provisions, we generally give "deference to policy statements issued by DCHD, the state's lead housing agency." Matter of Waltham and Alliance Reality Partners, No. 2016-01, slip op. at 22 n.22 (Mass. Housing Appeals Comm. Feb. 13, 2018), and cases cited.
uneconomic than the ROTC for the proposed project. Exhs. 104-A, B. He also testified that if the Board's decision had allowed [*14] for three-bedroom units (four units), the ROTC for the project would increase from 4.10% to 4.15%, but this would not change his opinion that the approved project is significantly more uneconomic than the proposed project, as it would result in a change in the differential from 274 to 269 basis points, only 5 basis points. Tr. III, 103-04.
HD/MW argues that finding the approved project uneconomic with these ROTC results is consistent with Cirsan Realty Trust, supra, No. 2001-22, slip op. at 15 (ROTC of 1.66% lower is significantly more uneconomic); Haskins Way, supra, No. 2009-08, slip op. at 17-18 (reduction of profits by 275 basis points (2.75%) renders the project significantly more uneconomic). By contrast, in Avalon Cohasset, supra, No. 2005-09, slip op. at 22, the Committee found a reduction of profits by only .11% (11 basis points) did not render the proposed project "significantly more uneconomic."
2. Board's Challenge to HD/MW's ROTC Analysis
Site Acquisition Costs. The Board did not submit a contrasting ROTC analysis, but presented the testimony of Mr. Mullins, an abutter to the site who is a real estate developer. [*15] Â 3 The Board argues that the developer's costs to construct the project as conditioned by the Board are too high. It objects to the $ 450,000 acquisition cost for 711 Randolph Avenue, which HD/MW would have to acquire to attain the lot frontage required by Condition 9 of the Board's decision. Mr. Holland stated that $ 450,000 represented a conservative estimate of the value of the parcel. The Board argues, that since MassHousing appraised the proposed project site as $ 800,000, a valuation of $ 450,000 for 711 Randolph Avenue is excessive. It argues that Mr. Holland, who gave the opinion, lacks expertise as an appraiser to determine the value, and that the opinion was unsupported by fact. It also questions whether the original MassHousing appraisal included the entire site at 711 Randolph Avenue, therefore precluding adding additional site acquisition costs for that parcel. Exhs. 83, P 45; 100-B; Tr. II, 21.
With regard to the value for 711 Randolph Avenue, we agree with the developer that a value for that property, which must be acquired, is a necessary cost of the condition for lot frontage. We find credible Mr. Holland's testimony [*16] that only a portion of the 711 Randolph Avenue lot was included in the original acquisition price of $ 800,000. Although we recognize that some acquisition cost is a part of the developer's expenses, Mr. Holland offered insufficient explanation of his method of determining his figure of $ 450,000, and we do not find it credibly supported on this record. We exclude it from the site acquisition costs.
Site Development and Construction Costs. The Board argues that Mr. Holland's site development and construction cost estimates for the 90-unit and 35-unit versions of the project are not credible, relying on testimony of Mr. Mullins that construction of the 35-unit project would be "cheaper and easier because of reduced site construction costs." Exh. 100, P 4. Mr. Holland testified that the site construction costs for the 35-unit development exceed those for the 90-unit development by $ 168,236 because of increased costs for looping and widening the access driveway and sidewalks, increasing the size of the culvert, increasing water main and gas connections, constructing additional retaining walls and demolishing the house on 711 Randolph Avenue. Exhs. 83-2; 83-3; 83, PP 39-47; 100, [*17] P 4; 103, PP 5-7.
Mr. Engler responded that the specific charges objected to by the Board's witness address only minor aspects of the construction costs, and do not change the result that the Board's conditions render the project significantly more uneconomic. He testified that "fiddling with numbers here and there" does not add up; "in order to make them equally economic, you would have to take $ 3 1/2 million out of the $ 12.6 million budget to give you the same rate of return you get" with 90 units. Tr. III, 105-06.
We accept the testimony of Mr. Holland and Mr. Engler as more credible than that of Mr. Mullins. We also find that the Board's challenges to the project development costs, even if accurate, would represent an insignificant portion
3 Although granted intervener status, Mr. Mullins' testimony was proffered by the Board. He did not participate in the preparation of the Pre-Hearing Order, nor did he submit other evidence or argument as a Party.
of the development costs and do not materially affect the outcome of whether the conditions render the project uneconomic.
Rental Revenues. The Board challenges the testimony of the developer's consultant, Ms. Sweet, with respect to the anticipated rents attributable to the project as approved by the Board. It argues Ms. Sweet underestimated rental income for the approved project because she used only comparables with two bedrooms rather [*18] than three and said "I don't know" when asked if she would have chosen different sites for comparison if she had included three-bedroom units. 4 Tr. III, 83. On redirect, Ms. Sweet offered rental figures if two-bedroom units would be converted to three-bedroom. Tr. III, 86-88. Even if the Board's decision had permitted three bedroom units, as noted above in § III.A.1, Mr. Engler gave his opinion that in that circumstance, the change in his calculation would be "minuscule." Tr. III, 103-04.
The Board focused on Ms. Sweet's comparison of the proposed project with properties identified as Sunset Lake and 50 Eliot Street. The report prepared by Ms. Sweet compared unit amenities between the subject property and comparable small developments. Ms. Sweet's list comparing amenities between the HD/MW 35-unit configuration and the comparables, indicated 19 unit amenities for the HD/MW property and 50 Eliot Street, but only 13 for Sunset Lake. Exh. 84-3; Tr. III, 81. Ms. Sweet also compared common area amenities for smaller developments, noting that the subject property and Eliot Street each had five and Sunset Lake had four. Her report identified [*19] Sunset Lake as most comparable based on location, proximity to amenities and transportation, as well as facility amenities, although she noted that Sunset Lake is located south of Interstate 93/Route 1, and further from Boston than the project site. Exh. 84-3.
The Board also criticized Ms. Sweet's assumption there would be no added or community amenities in the 35-unit development, such as a passive recreation area or dog washing area. When she acknowledged the developer did not tell her to assume there would be no such amenities, she noted that only one of her comparable properties included these amenities. Tr. III, 71-72. Ms. Sweet also stated that smaller rental projects tend to have one building with minimal amenities, and that with "multiple buildings on a small lot ...you have smaller buildings, there tends not to be … room for amenities ..." Tr. III, 72. The Board argues she excluded amenities because they would have added value and resulted in higher rates. We do not give credence to this argument. The Board offered no evidence that amenities would produce higher rental rates for a project this size that would outweigh the costs of such amenities.
The Board argues that Sunset [*20] Lake, the property which Ms. Sweet said she determined to be the most comparable, was not comparable. It points out that Ms. Sweet acknowledged that Sunset Lake was a renovated nursing home, rather than new construction built in 2014 as she had earlier testified, and that pictures of the project show a dated building, and she acknowledged that this difference could be a descriptor affecting rents. Tr. III, 7071, 78, 84. Although both the project site and Sunset Lake are suburban, the Board contends that substantial differences exist between Sunset Lake, a single building directly on the street with no landscape, and the HD/MW approved 35-unit project, which is 300 or 400 feet set back from the street. Tr. III, 79-80; IV, 26-28; Exhs. 83-4; 115. Ms. Sweet testified that 50 Eliot Street had a far superior location, located in downtown Milton, next to the trolley line and in walking distance to the supermarket and walking trails. She stated she felt "Sunset Lake was priced a bit low and [50 Eliot] a little high and we picked between those two." Tr. III, 82; Exh. 84-3. Based on the evidence, we find Ms. Sweet's evidence explaining her choice of comparable rents was credible. Accordingly, [*21] we accept her rental figures for the ROTC calculation.
Alternative Revenue Resources. Mr. Mullins challenged Mr. Engler's determination that the project was uneconomic as conditioned, because, he stated, he would consider the 35-unit project with the 4.13% return originally projected by Mr. Engler in his direct testimony to be "a viable development opportunity," stating that the developer could obtain financial support from numerous federal and state government resources that boost returns
4 The Board claims that Ms. Sweet admitted the decision did not prohibit three-bedroom units. Even if true, Ms. Sweet's opinion on this issue carries no weight. As we discuss in § IILB, infra, we find that the Board's decision did not allow three bedroom units. Therefore, appropriate comparable rents would be those for developments without three-bedroom units.
on affordable housing "well above what would be an economic return." Exhs. 85, P 22; 100, PP 2-3. However, he provided no other specific factual evidence to support this assertion; therefore we do not credit Mr. Mullins' testimony on this point. Nor does it assist our analysis, as the standard for determining whether a project is uneconomic is the ROTC methodology established by our regulations and the Guidelines. Moreover, our regulations and the Guidelines do not require a developer to seek out such funding to determine whether a project is uneconomic. See Exh. 104, P 3.
3. The Committee's Findings
With regard to the disputed aspects of the developer's economic analysis, we [*22] accept its construction costs figures, but do not accept Mr. Holland's site acquisition cost for 711 Randolph Avenue. We accept Ms. Sweet's recommended rental costs. These findings require a slight adjustment to the ROTC calculation made by Mr. Engler based on the testimony of the developer's witnesses. Â 5 Accordingly, below is our modification of the ROTC analysis for the 35-unit project as conditioned by the Board:
35-Unit Project
Exh. 105-B. ROTC (Return on Total Cost) is calculated by dividing NOI (Net Operating Income) by TDC (Total Development Cost). Thus, ROTC is: $ 517,185 / $ 12,152,531 = 4.26%.
As noted above, both the 5.88% ROTC for the proposed project and this figure of 4.26% are below the ROTC threshold of 6.84%. The ROTC for the approved project is 1.62% below that for the proposed project, comparable to Cirsan, supra, No. 2001-22, slip op. at 15. Thus, we find [*23] the ROTC for the approved project is both uneconomic and significantly more uneconomic than the ROTC for the developer's proposal.
B. Three-Bedroom Requirement
HD/MW argues that, apart from the ROTC analysis, the Board's decision prohibits three-bedroom units in violation of the January 17, 2014 Interagency Agreement that requires affordable housing projects to contain at least 10 percent three-bedroom units. See Exh. 13. Condition 2 of the Board's decision provides: "[t]he Project shall include no more than thirty-five (35) units of rental housing. The Applicant shall indicate the mix of one and two bedroom units on its Site Plans. Four of the units shall be fully handicapped accessible." The developer argues that this language, by excluding a reference to three-bedroom units, prohibits them, and therefore precludes HD/MW from obtaining final approval from MassHousing, thus rendering the projected as approved uneconomic.
MassHousing, the Department of Housing and Community Development (DHCD), and two other state housing agencies have executed an Interagency Agreement that provides that "it is the intention of the State Housing Agencies that at least ten percent (10%) of the [*24] units in Affordable Production Developments funded, assisted or approved by a State Housing Agency shall have three (3) or more bedrooms except as provided herein." Exh. 13, Bedroom Mix Policy, § 1. The Bedroom Mix Policy also provides in § 5, that:
The bedroom mix policy shall be applicable to all Production Developments provided a Subsidy as defined under 760 CMR 56.02 or otherwise subsidized, financed, and/or overseen by a State Housing Agency under the M.G.L. Chapter 40B comprehensive permit rules for which a Chapter 40B Project Eligibility letter is issued
5 Since the developer did not provide any cost projections for complying with MEPA, even if we had found that compliance with MEPA is necessarily a cost resulting from the Board's conditions, we would include no amount as a projected expense for compliance with MEPA requirements and concomitant delays attributed to that process. See § VI, infra.
on or after March 1, 2014. The policy shall be applicable to all other Affordable Production Developments funded, assisted, or approved by a State Housing Agency on or after May 1, 2014.
Exh.13. See also Guidelines, Exh. 1, p. 11-3, § 2.1.f. HD/MW argues that the project eligibility letter from MassHousing requires that the development comply with this requirement. Exhs. 14, pp. 3, 8; 78; 83, PP 12-17.
HD/MW argues that Condition 2 unambiguously precludes three-bedroom units. Pointing to language of a proposed decision drafted by the Town's attorney that expressly prohibited three-bedroom [*25] units, the developer argues that her participation influenced the Board's decision. Mr. Holland testified that during the Board's deliberations, the Town's attorney sat at the deliberation table with the Board members, and her proposed decision was described as a draft decision during the deliberations. The developer points out that it was required to identify the number of dwelling units and the number of bedrooms for each unit as part of its comprehensive permit application, and its architectural plans depict the number. Exhs. 24-3; 24-12B; 83, P 22; 111, p. 6; Tr. II, 109-11.
The Board members were aware of the Interagency Agreement and its requirements. The developer cannot obtain a waiver of this requirement. After inquiring with MassHousing regarding the necessity of compliance with the Interagency Agreement to obtain final approval and financing from that agency, HDMW obtained a letter in response stating it must comply with the Interagency Agreement, and that MassHousing will not grant a waiver. Mr. Engler testified, that since this prohibition precludes the developer from obtaining final approval, it renders the project uneconomic. Exhs. 24-13A, p. 8; 24-13B, p. 2; 83, P [*26] 19; 85, P 23.
The Board claims that the decision does not prohibit three-bedroom units, claiming that the Town attorney's draft decision was not the Board's draft, and cannot be evidence of the Board's intent to prohibit three bedrooms. Tr. I, 149. It also argues that because the hearing before the Committee is de novo, the thinking behind the Board's action is not relevant. Â 6 The Board argues also that even if the Town attorney prepared a draft decision, the fact that the condition she had written eliminating three-bedroom units was excluded from the final decision is evidence there was no intent to prohibit three-bedroom units.
The Board argues that this provision must be read to effectuate the purpose of the Legislature, rather than to frustrate it, and therefore it must be read to allow three bedrooms, even though they are omitted from the listing of permitted unit types. It suggests that by showing the mix of one and two- bedroom units, the site plans will also show three-bedroom units. Otherwise, it argues, the Board's decision would be meaningless. It suggests that the omission of a specific reference to three-bedroom units [*27] can be addressed by modification.
We do not consider the Town attorney's draft to be an act of the Board. However, the Board's suggestion that we must not assume it would have omitted the subsidizing agency's requirement, even by mistake, belies the fact that the decision explicitly referenced the specific types of units that should be identified on the site plans. The Board received an application to develop an affordable housing project with a mix of unit types including three-bedrooms. Its decision states that there shall be a mix of one- and two-bedroom units but omits three-bedrooms. Given that the application requested three-bedrooms, we read the language of the condition to not grant the request to construct three-bedroom units, consistent with the rule of construction that "to express or include one thing implies the exclusion of the other." Kitras v. Town of Aquinnah, 474 Mass. 132, 143-44 (2016). We do not find it credible that the Board meant to include three-bedroom units when its condition deliberately omits mention of them despite the developer's inclusion of three-bedroom units in its proposal.
We conclude this condition prohibiting three-bedroom [*28] units in the project renders the project uneconomic as it prohibits final approval from the subsidizing agency. See Delphic Associates v. Hudson, No. 2002-11, slip op. at 4 (Mass. Housing Appeals Comm. Dec. 23, 2002) (condition which causes subsidizing agency to not fund project renders project uneconomic); Atwater Investors, Inc. v. Ludlow, No. 2001-09, slip op. at 10-11 (Mass. Housing
6 HD/MW asks us to ignore the Board's reference to Board chairman John S. Leonard's affidavit which was submitted in connection with the parties' summary decision motions. We agree that since that affidavit was not entered into evidence and the affiant was not subject to cross examination, it may not be considered.
Appeals Comm. Jan. 26, 2004) (developer met burden of demonstrating Board's conditions rendered project uneconomic based on bank letter stating that Board's conditions precluded financing under NEF program).
C. Nonwaiver of Wetlands Bylaw
The final basis on which HD/MW argues that the project as approved is uneconomic is its assertion that the Board refused to waive necessary local wetlands bylaws. It argues that the denial of its requested waivers of Chapter 15 of the Wetlands-Bylaw and § IV.B of the Zoning Bylaw prevents HD/MW from constructing the access driveway across the wetlands, as the wetlands bylaw prohibits activity within the wetlands, and the zoning bylaw requires a special permit before performing construction in a wetland area. Exhs. 3, § IV.B; 4, § XI(b); 76, PP 22-23; Tr. [*29] I, 17.
The waiver denial would require the developer to construct the project without performing any work within the wetlands plus an additional 25-foot no disturb zone. The developer argues that, since work within the wetlands is required to construct the only means of access to the buildings on the site from Randolph Avenue, the prohibition on constructing the access driveway over the wetlands precludes construction of the project. The Board argues that since its decision provides conditions for the width of the access roadway over the wetlands, there is no denial of construction in the wetlands. Tr. I, 17; Exhs. 18; 83, PP 32-36; 86, PP 4-7.
Here unlike the three-bedroom condition, the Board's decision contains provisions that expressly conflict with the blanket denial of a waiver to construct in the wetlands and in the 25-foot no disturb zone. Therefore, it is appropriate to read the denial of the wetlands waiver and the special permit provision to be consistent with the more specific provisions regarding work in the wetlands. Even though the Board did not use the language, "except as otherwise provided in this decision" for this provision as it did elsewhere in its decision, [*30] we will read the language of the waiver denial to incorporate that language. Therefore, the developer has not demonstrated that it is prohibited from constructing an access driveway in the wetlands and it cannot demonstrate the project as approved is uneconomic on this basis.
IV. LOCAL CONCERNS
Since the developer has sustained its initial burden to demonstrate that conditions and denials of waivers in the Board's decision would, in the aggregate, render the project uneconomic, the burden then shifts to the Board to prove, with respect to those conditions and requirements challenged on economic grounds, first, that there is a valid health, safety, environmental, design, open space or other local concern that supports each of the conditions and requirements imposed, and then, that such concern outweighs the regional need for low and moderate income housing. 760 CMR 56.07(1)(c), 56.07(2)(b)3. See also Pre-Hearing Order, § IV, PP 3, 5. The burden on the Board is significant: the fact that Milton does not meet the statutory minima regarding affordable housing establishes a rebuttable presumption that a substantial regional housing need outweighs the [*31] local concerns in this instance. 760 CMR 56.07(3)(a); Pre-Hearing Order, § II, P 19; G.L. c. 40B, §§ 20, 23. See Zoning Bd. of Appeals of Lunenburg v. Housing Appeals Comm., 464 Mass. 38, 42 (2013) ("there is a rebuttable presumption that there is a substantial Housing Need which outweighs Local Concerns" if statutory minima are not met), quoting Boothroyd v. Zoning Bd. of Appeals of Amherst, 449 Mass. 333, 340 (2007), quoting Board of Appeals of Hanover v. Housing Appeals Comm., 363 Mass. 339, 346, 365, 367 (1973) ("municipality's failure to meet its minimum [affordable] housing obligations defined in § 20 will provide compelling evidence that the regional need for housing does in fact outweigh the objections to the proposal").
A. Overview - Density, Intensity and Project Redesign
HD/MW argues that the Board has improperly redesigned the project, and that its changes are not supported by valid local concerns. Most significantly, it argues that the Board requires the developer to redesign the entire project including requirements to 1) reduce the number of units [*32] to no more than 35 (Condition 2); break two residential buildings into several smaller buildings (Condition 6); construct the internal driveway as a looped roadway (Conditions 7, 28); locate all dwelling units within 100 feet of an elevator (Condition 22); redesign the architectural style of buildings (Condition 23); add an additional right hand turning lane to the access driveway (Condition 29); add additional and wider sidewalks to the access driveway (Condition 30); and requirements regarding parking (Conditions 13, 14). The Board also denied waivers from the zoning bylaw with regard to the following matters: disturbance of wetlands (§ IV B, wetlands regulations, and Wetlands Bylaw, Chapter 15); building height over 2 1/2 stories or 35 feet (§ V.A.1); reduction in lot frontage to less than required 150 feet (§ VI.A.1); rear yard setbacks (§ VI.D.3); parking (§§ VII.B.2, VII.G, and VII.H.10); sidewalks in parking areas (§ VII.F.4); and site plan approval (§ VELD). Exhs. 3; 4; 76.
Viewing the above conditions as a group, it is clear that the Board was concerned with the density and intensity of the proposed project. The Board dramatically reduced the size of the project from 90 to [*33] a maximum of 35 units, and presented several witnesses who testified that the density of the project was excessive and expressed concerns regarding the environment, open space, density and intensity of use of the site.
We have previously emphasized that a "board must review the proposal submitted to it, and may not redesign the project from scratch." Pyburn Really Trust v. Lynnfield, No. 2002-23, slip op. at 14 (Mass. Housing Appeals Comm. Mar. 22, 2004), quoting from CMA, Inc. v. Westborough, No. 1989-25, slip op. at 24 (Mass. Housing Appeals Comm. June 25, 1992). See also Peppercorn Village Realty Trust v. Hopkinton, No. 2002-02, slip op. at 6 n.4 (Mass. Housing Appeals Comm. Jan. 26, 2004). However, a board is permitted to deny requests for waivers and to impose conditions even if such action would require a developer to modify its project, if the action is supported by valid local concerns that outweigh the need for affordable housing. See Hanover, supra, 363 Mass. 339, 346; CMA, supra, at 24 n.13; See also 760 CMR 56.05(8)(d). Â 7 One of the important [*34] distinctions is that the Board may not itself order a specific design. For example, in Pyburn, the board's condition requiring "flipping of the buildings to the opposite side of the property" in addition to requiring a reduction in the number of buildings, was struck by the Committee. Id.
The question to be addressed here is whether the Board's conditions appropriately address valid local concerns that outweigh the need for low and moderate income housing, or whether they go beyond properly addressing local concerns and constitute improper redesign of the project. Even when a board demonstrates a valid local concern, we examine the conditions imposed to ensure that they are supported by that local concern, and may modify a condition that is not properly tailored to the local concern. For the reasons set out below, we find that several of the conditions are not credibly supported and constitute improper redesign of the project and must therefore be struck or modified.
The Board argues that the 90-unit project is too dense, not consistent with the residential character of the neighborhood, damaging to the environment, and will interfere with the privacy of abutters. It relies [*35] on testimony of its engineers, planner, architect and traffic witnesses, as well as its fire and police chiefs. For example, Cheryl Tougias, AIA, LEED AP, the architect witness for the Board, also stated that a 90-unit development is not consistent with the residential character of the neighborhood. Tr. III, 158. She believed limiting the development to 35 units would likely alleviate most if not all of the local concerns, including vehicle access, protection of the environment, providing a design that is appropriate for the neighborhood and preserving open space. Â 8 Exh. 92, P 3. Police Chief John King testified generally that the density of the project "raises significant safety concerns
7 760 CMR 56.05(8)(d) states, "[t]he Board shall not issue any order or impose any condition that would cause the building or operation of the Project to be Uneconomic, including a requirement imposed by the Board on the Applicant … 2. to reduce the number of units for reasons other than evidence of Local Concerns within the purview of the Board (see 760 CMR 56.05(4)(e)...."
8 HD/MW objected to the admission of Ms. Tougias' testimony on the ground that she lacked expertise for her opinions. Tr. Ill, 88. The presiding officer admitted her testimony de bene. In its brief, the developer renewed its argument that she had no expertise outside of architecture and argued that her testimony should be given no weight HD/MW brief, p. 24n.l0. In addition to her experience as an architect, Ms. Tougias is a member of the Milton Planning Board. She testified that as an architect, she would coordinate the team for a project, including deciding on the consultants to include on the team, such as the civil engineer, landscape architect and others. Although we will not strike her testimony, we accord little or no weight to her opinions on technical issues within the expertise of the civil engineers, traffic engineers and wetlands specialists, which are outside her identified expertise as an architect. See Tr. III, 108-18.
regarding the ability of first responders and emergency personnel to quickly and expediently address issues concerning the health and safety of the residents and guests of the proposed development, and with respect to motor vehicle traffic circulation and pedestrian use." Exh. 96, P 7.
HD/MW argues that its proposed development is not too dense and is safe. As it points out, the project site comprises 7.81 acres, including 1.93 acres of wetlands. [*36] Mr. Burke, the project engineer, testified that project density is 11.5 units per acre, or 15.2 units per buildable acre. 9 Exhs. 86, PP 5, 8; 55; 56. The developer argues that this is over five times the amount of open space required by the Milton Zoning Bylaw, and the density is significantly less than at other, unsubsidized housing developments in Milton. Exhs. 3, § VI.F.2; 59, p. 4. Mr. Burke testified that Milton Landing has a density of 26.5 units per acre (73 units on approximately 2.75 acres). Exhs. 86, PP 5, 8, 11; 82, p. 1.
HD/MW also argues that the Board has failed to meet its burden with respect to the unit reduction and associated conditions that address the design of the proposed project. Mr. Burke stated that the developer's proposal was designed to conform to accepted engineering practices and is safe for future residents and the general community. Exh. 86, P 2. Kevin Hastings, PE, LEED AP, the developer's fire safety expert, testified that the project fully complies with the National Fire Safety Code. Exhs. 89, PP 3, 6-9; 108, PP 2, 11. Scott Morrison, PWS, RPSS, SE, an environmental and wetlands scientist, stated [*37] on behalf of the developer that the project design has been sited and includes measures to prevent negative impact on the wetland resource areas on the project site. Exhs. 88, P 6; 107, PP 2, 7. Daniel Dulaski, PhD., PE, a civil engineer and associate professor at Northeastern, testified with respect to traffic safety that construction of the proposed project would not "significantly adversely impact the future inhabitants of the development or the general community." Exh. 87, P 4. Therefore, HD/MW argues that the Board has not met its burden with regard to these conditions and the denial of requested waivers.
General or vague arguments alone regarding density and intensity are insufficient to warrant a reduction in a project size. Webster Street Green, LLC v. Needham, No. 2005-20, slip op. at 12 (Mass. Housing Appeals Comm. Sept. 18, 2007); Princeton Development, Lnc. v. Bedford, No. 2001-19, slip op. at 6 (Mass. Housing Appeals Comm. Sept. 20, 2005), and cases cited. Our decision have discussed the difference between issues of density and intensity: "Density involves determining the impact of the development on factors ranging from municipal services and traffic to aesthetics [*38] and overall livability of the surrounding neighborhood." Hastings Village, Inc. v. Wellesley, No. 1995-05, slip op. at 20 (Mass. Housing Appeals Comm. Jan. 8, 1998), aff'd, Zoning Bd. of Appeals of Wellesley v. Housing Appeals Committee, 54 Mass. 1113 (2002). "Density usually refers to a large area or neighborhood. It may be used to compare a proposed development to the neighborhood, often in the context of the impact of a large development on municipal services or overall aesthetics." Page Place Apartments, LLC v. Stoughton, No. 2004-08, slip op. at 13 (Mass. Housing Appeals Comm. Feb. 1, 2005), citing Canton Housing Authority v. Canton, No. 1991-12, slip op. at 4 n.2 (Mass. Housing Appeals Comm. July 28, 1993). In this context, the dispute primarily addresses the impact of the project on neighboring and abutting properties.
By contrast, intensity focuses within the site:
Intensity involves the functioning of the housing on the particular site, which includes questions such as the adequacy of open space and recreational space, the functionality of common areas, the provisions made for the privacy of the tenants, the accessibility of the [*39] site to and from other parts of the neighborhood, and related factors which look to whether the number of units are too large not for the surrounding area but for the particular parcel of land.
Id. at 15, citing Hastings Village, supra, No. 1995-05, slip op. at 26. "Intensity is used in discussing the adequacy of the proportion of unbuilt to built space … on a particular site." Id., citing Canton, supra, No. 1991-12, slip op. at 4 n.2.
Thus, our discussion of the alleged specific impacts of the proposed project on emergency and general vehicle access, pedestrian safety, stormwater management and wetlands protection, will address issues of the intensity of
9 The Board's engineer, Mr. Turner, stated that the wetlands comprised 84,146 square feet. Exh. 91, P 8.
the proposed use of the project site. However, general declarations of degradation of the environment, without more, cannot demonstrate a valid local concern. In addition to stating general concerns, the Board is obligated to show how local requirements and regulations support those concerns with respect to the project site, and how those concerns require either denials of waivers of local requirements or the imposition of conditions. Herring Brook Meadow, LLC v. Scituate, No. 2007-15, slip op. at 26 (Mass. [*40] Housing Appeals Coram. May 26, 2010), aff'd, Zoning Bd. of Appeals of Scituate v. Herring Brook Meadow, LLC, 84 Mass. App. Ct. 1132 (2014).
B. Emergency Access and Fire Safety
The Board imposed several conditions relating to fire safety and emergency access, which HD/MW has challenged: 1) 24-foot wide looped access driveway; 2) emergency access to buildings from access driveway; 3) location of elevators; and 4) fire hydrants.
1. Looped Roadway
Condition 28. Vehicular circulation shall be looped through the Site to facilitate the movement of emergency vehicles and trucks and eliminate the necessity for back-up movements in the parking areas and driveway access.
The access driveway enters the site from Randolph Avenue, crosses the wetlands and extends to the buildings and parking areas within the site, for a total length of 350 feet. Exh. 71, p. 1. HD/MW challenges conditions dictating that the access driveway be looped through the site. Relying on several witnesses, the Board argues that emergency vehicles will not be able to maneuver and turn around in the parking lots proposed on the site but would have to back up to the entrance of [*41] the access driveway, causing delays for emergency vehicles to respond to emergencies offsite. Jeffrey Dirk, PE, PTOE, FITE, a professional engineer with expertise in traffic engineering, transportation planning and highway and roadway design, testified for the Board that with only a single access to the development, a temporary road blockage could occur. Exh. 90, P 14. Fire Chief Grant testified that Milton requires all developers to comply with the most recent edition of the Code of the National Fire Prevention Association, as amended by the Massachusetts Comprehensive Fire Safety Code 10 and to obtain written approval of the fire department to ensure compliance with federal law, the state fire code and local regulations. Exh. 94, P 21; Tr. I, 77-78.
Both Fire Chief Grant and Maurice Pilette, PE, FSPE, CFPS, CET, a fire protection engineer, testified for the Board that there is inadequate turnaround space for fire apparatus, which would hinder maneuvering in an emergency, potentially damage parked and fire vehicles in the area, and cause "significant delay" in responding to a call at a different location. Exhs. 94, P 17; 93, P 18. [*42] Chief Grant stated that the "proposed [90] unit development would not provide sufficient turnaround area for fire apparatus to turn around and drive back down the access road in a forward direction. A ladder would need to back down the access road and back into Randolph Avenue… before making a turning movement." Exh. 94, P 20. He stated that if the fire department is on site, no one would be able to leave while fire apparatus is clogging the area. Tr. I, 90. He also testified that "...as far as the parking lot goes, some of -- especially in the upper end of it, you come into the lot, and you have to jog up to the left and then jog back. We are going to have significant egress problems." Tr. I, 66. When asked about the impact in an emergency if the rear parking lot is full, he further stated:
In an emergency up there, depending on what it is, an engine is going to have to back down and come around a compound curve to the site beyond the smaller of the two buildings before it can turn around… So for us to back out, we are going to have to come down, navigate two bends in that parking lot, back further down to the end of the smaller of the two buildings and turn around there. [*43] I would go beyond that to say that if we
10 During the hearing the witnesses frequently referred to the legal requirement as based upon the fire code issued by the National Fire Protection Association (NFPA-1). The Massachusetts Comprehensive Fire Safety Code, promulgated as 527 CMR 1.00, has modified the NFPA-1 and is the applicable fire safety code for the purposes here. This regulation specifically states, "NFPA-1 2015 edition is modified, on a Chapter by Chapter basis, as follows...." 527 CMR 1.05. Exhs. 94, P 21; 93, P 7; Tr. I, 97-98.
have to put the ladder truck up into the site that the ladder truck is going to have to back all the way to the street.
Tr. I, 67-68.
The Board argues that this issue supports the reduction in project size, and that the looped road is necessitated by public safety concerns. Fire Chief Grant went on to state that a 35-unit development would allow all fire apparatus to execute a turnaround maneuver at the site of the project. Exh. 94, P 20. Mr. Dirk testified that a looped roadway is consistent with applicable standards since the development will have only one means of access and has challenging topography for the site layout. He stated that emergency vehicles risk being blocked by an accident, utility break, fallen tree or pole, or pavement repairs. He testified that a looped roadway will facilitate emergency movement throughout the site and is supported by the Institute of Transportation Engineers (ITE) Neighborhood Street Design Guidelines. Exhs. 90, PP 14-15; 112; 71. Scott Turner, PE, AICP, LEED AP ND, a professional engineer, testified on behalf of the Board in support of the looped roadway as reasonable to insure safe and efficient movement [*44] of emergency vehicles through the development. He stated looped systems are required in many other municipalities and will "facilitate the health and safety of the Project's occupants while driving or walking within the site" and allow for easier access for emergency vehicles. Exh. 91, P 22. Police Chief King testified generally that the looped roadway would address the safety concerns he expressed regarding the ability of first responders and emergency personnel to quickly and expediently address issues of health and safety, and motor vehicle traffic circulation and pedestrian use. Exh. 96, P 7. The Board argues that the Committee has previously allowed a condition requiring an additional turnout on the ground that it was warranted by concerns raised by the fire chief. See Cozy Hearth Community Corporation v. Edgartown, No. 2006-09, slip op. at 18 (Mass. Housing Appeals Comm. Apr. 14, 2008).
The developer argues that the Board has not demonstrated a valid local concern supporting its contention that a looped roadway is necessary to facilitate movement of emergency vehicles throughout the site, arguing that the Board did not identify a local, state or federal requirement for one. [*45] HD/MW points out that neither Fire Chief Grant nor Mr. Pilette testified in support of a looped access drive. Exhs. 93; 94. The developer also points out that neither Mr. Turner nor Mr. Pilette suggested during their peer review of the project that a looped roadway was necessary. Exhs. 57, 75.
Mr. Hastings, the developer's fire safety expert, testified that the access road complies with the Massachusetts Fire Comprehensive Fire Safety Code, 527 CMR 1.00, and that these regulations do not require a looped roadway. He also stated that the emergency access plans provide for emergency vehicles to safely access the site and turn around. Exhs. 89, PP 3-4, 7; 67. Mr. Burke testified that the access drive and traffic pattern have been designed in accordance with accepted engineering principles, and agreed with Mr. Hastings that a looped roadway is not required by the fire safety code. Exhs. 86, P 13; 60. Dr. Dulaski, the developer's traffic expert, testified that traffic impacts from construction of the proposed project would not "significantly adversely impact the future inhabitants of the development or the general community." Exh. 87, P 4. He also stated that [*46] the developer's emergency access plans demonstrate compliance with the fire code requirement for provisions to allow fire vehicles to turn around on dead end roads more than 150 feet long. Exhs. 108, P 8; 60; 89, P 7; Tr. I, 82.
HD/MW argues that this evidence, and the lack of support for a looped road by the Fire Chief Grant and Mr. Pilette undercuts the police chiefs recommendation for a looped roadway because fire vehicles are larger than police vehicles. Exh. 96, PP 14, 16; Tr. I, 82, 112-13. Dr. Dulaski testified that a looped roadway was not needed for the project and has no relationship to site access. He stated that, regardless of the number of units, vehicles will travel over the same 24-foot wide driveway, even if there is a looped roadway. Exh. 106, PP 16-17; Tr. IV, 147. Mr. Hastings pointed out that Milton Landing, another property in Milton, has one point of access, no looped roadway and no fire truck access to two sides of the building. Exhs. 108, P 10, 108-A.
Under the state fire protection code, "[f]ire department access roads shall have an unobstructed width of not less than 20 ft. (6.1 m.)...." 527 CMR 1.05, § 18.104.22.168.1.1. The regulation [*47] also provides, "[t]he minimum inside turning radius of a fire department access road shall be 25 feet. The AHJ shall have the ability to increase the minimum inside turning radius to accommodate the AHJ's apparatus." 527 CMR 1.05, § 22.214.171.124.3.1. The Milton fire chief is the "authority having jurisdiction" (AHJ) with the authority to determine whether the turning radius for the project will accommodate the fire vehicles. 11 See Exh. 93, P 16; Tr. I, 73, 100. Although Mr. Dirk testified that the ITE and the NFPA-1 recommend two means of access for safety reasons in circumstances where there will be queuing of vehicles exiting a development, testimony shows vehicle queuing should not be significant. See note 14. Moreover, the Board has cited to no local or state requirement for a looped roadway. Exh. 90, P 13. We agree that it is a safety concern that emergency vehicles be able to maneuver within the development site. However, the Board has not satisfied its burden that a requirement of a looped roadway for this development is supported by a valid local concern, as long as the project provides a sufficient [*48] turning radius for large emergency vehicles to turn around within the development, as required by the fire code. Its requirement for a looped roadway constitutes an improper redesign of the project. See Pyburn, supra, No. 2002-23, slip op. at 14. Condition 28 is struck and requirements for a looped roadway in other conditions are also struck.
The state tire code requires the developer to have a safe turning radius for emergency vehicles within the site. Since the Committee may not waive state requirements, the developer must comply with this requirement. However, although the state fire code gives the fire chief the authority to make determinations, we have previously noted in Sugarbush Meadow, LLC v. Sunderland, No. 2008-02, slip op. at. 9 (Mass. Housing Appeals Comm. June 21, 2010), that the determinations made by the fire chief are actions of a local official and hence subject to determination by the Board and the Committee:
[I]t is precisely because the State Building Code grants the fire chief broad discretion that his recommendation here is subject to review. The developer is not seeking waiver of any specific provision of the uniform state building code, Rather, [*49] it challenges the j udgment of the fire chief, who is a local official … having supervision of the construction of buildings… G.L. c. 40B, § 20. As such, his approval, as one who would otherwise act with respect to [the comprehensive permit] application, is within the jurisdiction, initially, of the Board and, on appeal, of this Committee. G.L. c, 40B, § 21.
Id. (Internal quotations omitted). The Supreme Judicial Court affirmed this ruling in Sunderland Zoning Bd. of Appeals v. Sugarbush Meadow, LLC, 464 Mass. 166 (2013) stating that "a fire chief does not have unbridled discretion effectively to deny a comprehensive permit by refusing to approve fire construction documents...." Id. at 182. It also noted that with respect to comprehensive permit applications, "the fire chief is a 'local board or official who would otherwise act with respect to such application,' and the board [or the Committee] in reviewing such application has the 'same power to issue … approvals' as the fire chief. G.L. c. 40B, § 21." Id. at 183.
Therefore, we shall require the developer to include in its project [*50] and show on revised plans a vehicle turnaround location that meets the turning radius specifications for the Town's largest emergency vehicle when exterior parking spaces are completely occupied. This will allow the fire chief, in the exercise of reasonable judgment, to increase the minimum turning radius to accommodate the municipality's emergency vehicles consistent with the state requirements while addressing the local safety concern.
2. Emergency Access to Buildings
The Board argues that the project does not comply with the state fire prevention requirement for emergency vehicle access to all sides of a building. The state regulation requires that where, as here, the buildings will have an automatic sprinkler system, fire department access roads shall be provided such that any portion of the facility or any portion of an exterior wall of the first story of the building is located not more than 250 feet from fire department access roads as measured by an approved route around the exterior of a building or facility. 527 CMR 1.05, § 126.96.36.199.2.1; Exhs. 93-2; 94, PP 9-10; Tr. I, 100. Fire Chief Grant expressed concern that the 90-unit project did not [*51] comply with this requirement of the state fire code. Exhs. 74; 94, PP 10-13; Tr. I, 65, 66, 70-72.
Chief Grant stated that there was inadequate room for fire apparatus to fight a fire in the rear of the larger building, potentially causing access and egress issues because the fire department responds to box alarms with a total of 4 vehicles - two engines, a ladder truck and a command vehicle. Exh. 94, PP 7-13. In response to the fire chiefs
11 The NFPA-1 provides that "[d]ead-end fire department access roads in excess of 150 ft. (46 m) in length shall be provided with approved provisions for the fire apparatus to turn around." Exhs. 93, P 8; 93-2.
concern about meeting the 250-foot distance requirement, HD/MW proposed to add an exterior stairway attached to a portion of the rear of the larger building to provide additional access to the rear of that building. Exhs. 89, P 8; 892. Chief Grant testified that this was not adequate because "it would be poor firefighting strategy to predetermine apparatus placement for a structure such as this," that a "determination would be made based on a size up of the building to locate the size and extent of a fire," and the "preferred location of apparatus would be as close to the point of entry as possible." Exhs. 94, P 13. He also stated that having one of the locations identified on the plan shown on an uphill slope of the access road may be unacceptable [*52] because "fire operations may restrict access of later arriving emergency vehicles" and [i]n a fire emergency the access road should be kept clear." Â 12 Exh. 94, P 13. Mr. Pilette agreed with Fire Chief Grant. Exh. 93, P 14.
In response to Chief Grant's testimony, Mr. Hastings testified that if there was access within 250 feet, for any building and fire event the fire department could still choose its preferred location to position vehicles, whether or not within 250 feet. Exh. 108, P 5. This seems to be a reasonable solution.
The proposed exterior stairs appear to facilitate some access from the roadway consistent with the 250-foot requirement. Exhs. 59, p. 5; 60; 86-2; Tr. IV, 33-37. However, we are concerned that locating multiple large fire vehicles on the access drive for a period of time for firefighting increases the risk of blockage of the access driveway. Therefore, by condition, we will require the developer to provide a paved area for placement of fire vehicles during an emergency approach on the southerly size of Building 2, as either a parking area or access driveway sufficiently wider than 24 feet wide to accommodate the [*53] largest of the fire department's vehicles.
3. Fire Hydrants
Condition 32. The buildings shall be fully sprinklered. Fire hydrants shall be placed at the discretion of the Fire Chief.
The parties agree that the buildings will be fully sprinklered. HD/MW's disagreement with this condition is with the fire chiefs discretion in placement of fire hydrants. It requests Condition 32 to be modified to state: "The buildings shall be fully sprinklered and the project site shall contain two fire hydrants as previously agreed between HD/MW and the Fire Chief." Citing testimony of Mr. Burke, HD/MW argues that Chief Grant previously agreed two fire hydrants is the appropriate number. HD/MW brief, p. 30 n.15; Exh. 105, P 31. Mr. Hastings testified that the Milton fire chief may riot impose requirements that conflict with the state fire safety code. Tr. II, 155.
Fire Chief Grant testified that Milton requires developers to seek his approval when placing fire hydrants, both for subsidized and unsubsidized housing. He testified that this is consistent with Fire Safety Code § 188.8.131.52, which states that "[p]lans and specifications for fire hydrant systems shall be submitted to the fire [*54] department for review and approval prior to construction." 13 Exhs. 94, P 22; 93-2.
The Board argues that since this condition is consistent with state law, it must be allowed. Nevertheless, as we noted above, fire hydrant specification decisions by the fire chief are actions in his role as a local official. In response to the developer's testimony that two fire hydrants were agreed upon by Chief Grant, the Board has given
12 On cross examination, Chief Grant acknowledged that during the March 31, 2015 hearing before the Board he had stated that "even with the outdoor parking lot substantially filled with parked cars that it would not in any way inhibit the fire apparatus from accessing the buildings or from extricating people from these buildings" and that "even with the parked cars that the fire department would be able to put its equipment where it needed to put it." Tr. I, 57-58. He was asked on cross-examination whether he had previously testified that the parking lot situation was something he had seen in other locations in Milton and that HD/MW should not be penalized for it. Upon having his recollection refreshed, he stated: "[t]o the extent that the set of the plans I was working off of at the time, yes." Tr. I, 62-63. He also acknowledged that there are other buildings in Milton where fire trucks do not have direct access to all four sides of a building. Tr. I, 69. However, on redirect, he sought to explain the discrepancy between his statements, testifying "I was off in my distances around the building… I was off on topography. So, although we do have good access to three sides of the building, as I see it, we do have a significant problem in the rear of the building. We have topographical problems back there." Tr. I, 65-68.
no other number of fire hydrants that should be required. Therefore, the evidence in the record supports a requirement of two hydrants, and the Board has not supported further discretion in the number of hydrants by the fire chief. We will modify Condition 32 to provide that there will be two fire hydrants, whose placement shall be determined by the fire chief, who shall exercise reasonable judgment. See Sugarbush, supra, No. 2008-02, slip op. at. 9; Roger LeBlanc v. Amesbury, No. 2006-08, App. at 23 (Mass. Housing Appeals Comm. Sept. 27, 2017 Ruling) (LeBlanc II).
4. Elevators
Condition 22. The design shall insure that no dwelling unit is located more than one hundred [*55] feet from an elevator.
The Board argues that Condition 22, requiring no dwelling unit to be located more than 100 feet from an elevator, is supported by public safety concerns. Police Chief King testified that with only one elevator in each building, if that elevator is not working, emergency medical transport would require the stairs. He also stated that because the floors on the larger building are approximately 300 feet long, the condition "is sound from a public safety and public health perspective. Every second saved in a medical emergency could be a matter of life and death." Exh. 96, PP 17, 19; Tr. I, 124-26. Ms. Tougias stated that elevators should be placed within a reasonable distance to all units for safe, easy and quick emergency access and egress and testified that, to her knowledge, no other residential building in Milton of this scale and type has only one elevator located at one end of a 300-foot hallway. Exh. 92, P 16.
The developer argues that the Board has raised only vague statements that do not support a valid safety concern for this requirement. Mr. Hastings, its fire safety expert, testified that this condition is not supported by any provision of the state [*56] building code, fire code, Massachusetts Architectural Access Board regulations or ADA standards regulating the maximum travel distance allowed from a dwelling unit to an elevator, and the Board has offered no information to the contrary and no citation to any local requirement supporting this condition. Exh. 108, P 9; Tr. I, 113-14.
We agree with the developer that the Board has not demonstrated a valid local concern, for this condition that outweighs the need for affordable housing. It is therefore struck.
C. Traffic Safety for Vehicles and Pedestrians
The Board included a number of conditions relating to general traffic safety. Certain conditions relate to safety with regard to traffic outside the project site, and others relate to internal traffic. These conditions, other than the looped roadway addressed above, include the following requirements: 1) a right turning lane from the development to Randolph Avenue; 2) a pedestrian and vehicle waiting area on Randolph Avenue or near the exit from the development for individuals waiting for school buses; and 3) a minimum of five-foot sidewalks on both sides of the entrance driveway, rather than the single four-foot sidewalk proposed.. [*57]
1. Right Hand Turning Lane
Condition 29. A right-hand turning lane shall be provided at the exit on Randolph Avenue. The Applicant shall impose a right-turn only restriction between Monday through Friday during the morning peak commuting hours.
HD/MW objects to the Board's requirement of a right turning lane; it has agreed to establish a prohibition on left hand turns out of the development onto Randolph Avenue (State Route 28) during morning peak weekday commuting hours; therefore, this is not at issue. See Exhs. 87, P 6; 106, P 13.
The Board's primary arguments for the requirement for a right hand turning land are provided by its traffic engineer, Mr. Dirk, who stated that the right turn restriction would minimize the queuing during morning commuting hours, and during other times the right turn lane would allow traffic turning right to bypass the left turning traffic. Â 14 Exh. 90, PP 16-18. Police Chief King also supported the right turning lane, because there is no traffic light at this location. Exh. 96, P 9.
The developer argues that the Board has not demonstrated a valid local concern with this condition; instead [*58] this requirement will create a more hazardous situation for vehicles exiting the site and for those traveling on Randolph Avenue. It also argues that widening the access drive would require it to be wider than permitted by Milton bylaws. Exh. 106, P 10.
HD/MW relies on its traffic expert, Dr. Dulaski, who stated that the additional lane would increase the danger of exiting the development because when left turns were prohibited, two right turning lanes would result in two drivers simultaneously attempting to turn right onto Randolph Avenue resulting in the obstruction of sight lines and potential crashes. He also stated it would likely create driver confusion, as a driver might interpret the right turn lane to mean left turns could be made from the left lane. Dr. Dulaski also stated that, based on his traffic study, the right hand turning lane is unnecessary. Exhs. 106, PP 12-13; 87, P 6.
We find credible Dr. Dulaski's testimony that sight lines were found to be adequate for drivers entering Randolph Avenue from the development, as well as for drivers entering the development from Randolph Avenue. He also stated that the trip generation figures showed that the expected trips from [*59] the proposed 90 unit development would not adversely impact the traffic on Randolph Avenue. Â 15 Exh. 106, PP 6-7. We accept his testimony that a right hand turning lane would create more safety concerns than it would solve. We also note Mr. Dirk's peer review comments that queuing would be minimally affected by the proposed project. See note 14. We do not find the Board has demonstrated a valid local safety concern that supports the requirement, and will require it to remove the first sentence of this condition as requested by HD/MW. Â 16 HD/MW brief, Exh. 1, P 6.
2. Sidewalk on Access Drive and Parking Areas
Condition 30. Sidewalks on the Site shall be widened to five feet and shall be provided on both sides of the driveway access. Curbing shall be low. The roadway itself shall be not less than twenty-four feet wide.
The developer's proposed access driveway is 24 feet wide, the maximum permitted in the Town's zoning bylaws, and therefore complies with this condition. Exhs. 3, § VII.F.5; 59, p. 4; 106, P 10. HD/MW seeks removal of the requirement for a sidewalk five feet [*60] wide and on both sides of the access driveway. The developer also seeks the grant of a waiver of § VII.F.4 of the zoning bylaws, which requires sidewalks for pedestrian traffic in parking areas.
The Board argues that the development is not pedestrian friendly because pedestrians must cross the driveway to reach a four-foot sidewalk on only one side and the sidewalk is not adequate for accommodating parents and children waiting for a bus. It argues that reducing the project from 90 to 35 units would alleviate this issue, although it does not explain why such a large reduction would be necessary. Mr. Dirk testified that five foot sidewalks with
14 Although Mr. Dirk testified that reducing the number of units would alleviate the queuing at the entrance to the project, due to reduced traffic volume generated by a smaller project, Exh. 90, P 17, in his peer review of the TIAS, he noted the analysis results indicated the proposed project would have minimal impact on motorist delays and vehicle queuing. Exh. 57, p. 8. The police chief stated that a reduction in units would permit safer access to and from the site. Exh. 96, P 16. Noting that Police Chief King was not a traffic or transportation engineer and had not performed a traffic impact study of the project as proposed or as conditioned, the developer argues that this testimony was undercut by Dr. Dulaski and his Traffic Impact and Access Study (TIAS), as well as Mr. Dirk's peer reviews of Dr. Dulaski's findings. Tr. I, 102-03.
15 We also find credible his testimony, based on his TIAS that there is no transportation related safety need for reducing the number of units from 90 to 35. Exhs. 106, PP 4-9; 87, PP 3-5.
16 Dr. Dulaski also testified that the crash rates for the intersections surrounding the proposed development were significantly below state and district crash rates and a warrant study he conducted to determine whether a traffic signal is needed for the 90unit development showed no traffic signal was warranted. Exhs. 50, pp. 14-15, 31; 106, PP 5, 8. The developer argues that Mr. Dirk reviewed the TIAS and its conclusions and agreed with them. Exhs. 57; 90; 106, PP 4-5.
low curbings on both sides of the driveway would be consistent with guidelines by the ITE for a residential street serving between 2.1 and 6.0 units per gross acre. Exh. 90, P 20. Mr. Turner testified that five-foot sidewalks are "common and provide for better pedestrian access." Exh. 91, P 23. Police Chief King expressed concern that having access to the recreational area through the parking area would present a safety concern for the public and parents and children. Exh. 96, P 12.
HD/MW argues that the Town bylaws do not require five-foot minimum [*61] sidewalks and do not require sidewalks to be on both sides of a driveway. Â 17 Dr. Dulaski stated that the crosswalks and sidewalks in the development did not pose safety risks to persons, including children accessing the recreational area. He also stated that the four-foot sidewalk width complies with the Americans with Disabilities Act and the Massachusetts Architectural Access Board regulations. Exh. 106, P 15. See Tr. II, 127-28, 173; Exh. 57, p. 10. Mr. Burke testified that there are market rate developments in Milton that do not have sidewalks on both sides of access driveways. Exh. 86, P 14.
The Board has not shown a valid local concern that supports its requirement to either construct a second sidewalk on the opposite side of the access drive or to widen the sidewalk for the development. Nor has it shown by evidence or argument a valid local concern that supports the requirement of additional sidewalks in the vicinity of the parking area. Accordingly, this condition is struck, and § VII.F.4 of the zoning bylaw is waived to the extent necessary to construct the plans as conditioned by this decision.
3. Pick-up and Drop-Off [*62] Area
Condition 31. The Applicant shall provide a vehicle and pedestrian waiting area on Randolph Avenue or at the Site entrance for the pick-up and delivery of school children.
HD/MW argues that the Board has not demonstrated a basis for requiring this waiting area. Nevertheless, it proposes to modify this condition to read: "HD/MW shall provide a pedestrian waiting area at the site entrance for pick-up and delivery of school children." HD/MW brief, Exh. 1, P 7.
School buses do not pick up or drop off students on private property; therefore schoolchildren will be picked up from the development on Randolph Avenue. Exh. 99, P 7. The Board's traffic engineer, Mr. Dirk, testified that this condition is required so that school children would not have to get on and off the bus in a vehicle traveled way on the access drive or alongside Randolph Avenue (Route 28). He suggested this area could be "a widened sidewalk area along the driveway at the entrance to the Project." Exh. 90, P 23. He also stated a separate vehicle waiting area along the driveway or off Randolph Avenue is necessary to avoid inhibiting traffic entering and exiting the development. Police Chief King and Mr. Turner [*63] testified that this condition was necessary to protect children and parents at pickup and discharge. Chief King also expressed concern about the walking distance from the buildings to Randolph Avenue for parents and children, stating that vehicles waiting for the bus would result in traffic delays with long lines of vehicles. Exhs. 91, P 24; 96, P 10.
Dr. Dulaski testified that creation of a vehicular waiting area on Randolph Avenue could lead to blockages on Randolph Avenue with drivers pulling out of the site and immediately pulling into the waiting area. He stated there was no need for a vehicular waiting area along the access driveway within the development, because drop-offs would take seconds and would not interfere with traffic. Exh. 106, P 14. He also testified that since most motor vehicles are 7 feet wide and the access drive is 24 feet wide, adequate width exists for two vehicles to pass a stopped vehicle. Exh. 106, P 14. The developer argues, therefore, that there is no need for a vehicular waiting area and the pedestrian area it is willing to construct is sufficient.
On the record before us, the Board has not demonstrated a valid local concern that outweighs the need [*64] for affordable housing with regard to a vehicular waiting area. With regard to the pedestrian area, the developer shall
17 It also contends that this requirement would increase the permanent alteration of the wetlands by more than 700 square feet which would have an adverse environmental impact on the site and trigger a review under the Massachusetts Environmental Protection Act (MEPA). See § VI, infra.
provide a widened paved area along the access driveway next to the sidewalk. HD/MW's suggestion shall be modified consistent with this requirement.
D. Stormwater Management and Wetlands Protection
1. Under Building Stormwater System
Condition 11. The Applicant shall comply with the requirements of Milton's Rules for Comprehensive Permits, including that the Project comply with the Mass. Stormwater Handbook, including the requirement that any proposed stormwater facility not be located beneath any site building and is at least 20 feet away from any building slab or footing.
Condition 34. No section of the stormwater system shall be located under the buildings or located within 20 feet of the foundation of a building.
HD/MW proposes to include a portion of its infiltration system under the garages in the two buildings. The Board imposed Condition 11 to preclude this infiltration system, arguing that the ban is supported by health, safety and environmental concerns. 18 Mr. Turner testified that [*65] Condition 11 is consistent with the Massachusetts Stormwater Management Guidelines in the Massachusetts Stormwater Handbook, and referenced the Board's "Rules and Regulations for Comprehensive Permit Applications pursuant to M.G.L. c. 40B, §§ 20-23." 19 Exhs. 6; 10; 91, PP 17-18. He testified that the Handbook's site design criteria for infiltration trenches require that stormwater infiltration trenches must be a minimum of 20 feet from any building foundations including slab foundations without basements. He also stated that the setback is required to prevent stormwater from possibly undermining nearby building foundations or causing leaking into a building, and that placing stormwater infiltration systems beneath the buildings creates logistical issues for cleaning, inspection, maintenance and repairs. He stated he had never designed or endorsed a stormwater infiltration facility beneath buildings in a suburban development. Exhs. 91, PP 17-18; 91-E, p. 97; 91-F, p. 32.
HD/MW argues that the portion of the infiltration system below the garages in the two buildings does not pose a health, safety or environmental risk. It also points [*66] out that Mr. Turner's peer review acknowledged that the project complies with the 10 standards in the Massachusetts Stormwater Handbook. Exh. 75, pp. 22-26. Mr. Burke testified that the sole purpose of the under building infiltration systems is to recharge roof generated stormwater; that the systems are located below parking areas, not adjacent to or below living space; and due to their location, there is no possibility the collected stormwater could leak into the building's living space or impact the foundations of the proposed buildings, or even abutters' buildings. He also stated that under building infiltration systems are routinely utilized by engineers and he has designed such systems for both urban and suburban areas. Exh. 105, PP 9-11. HD/MW argues that Mr. Turner's peer review did not indicate the under building stormwater system proposal would violate any local or state regulations or the Handbook, and that his only concern during peer review related to maintenance access and related concerns. HD/MW argues that it has addressed these concerns by submitting an operations manual that Mr. Turner peer reviewed. Exhs. 61-62; 75; 105, P 10; Tr. II, 171. It argues that Mr. Turner's [*67] change in view in his pre-filed testimony is therefore not credible, and no health or safety basis exists for Conditions 11 and 34.
In requiring a setback for the infiltration system, the Board relies specifically in the language of the condition on its comprehensive permit regulations applicable only to comprehensive permit developments exceeding four units, not all comparable market rate construction projects in Milton. The Board has not demonstrated that the Stormwater Handbook requires the setback specified in this circumstance, and the record does not support a valid local concern for the requirement. And Mr. Turner's previous acceptance of the developer's response to concerns raised about
18 Condition 34 is redundant and therefore unnecessary. It is struck from the permit. We note that the Board incorporated its arguments related to Condition 11 to support Condition 34. Board brief, p. 54.
19 These local comprehensive permit regulations provide, "[i]f the proposed project exceeds four (4) house lots, or dwelling units, or exceeds one acre of construction area, the project shall conform to the Massachusetts Stormwater Policy Manual." Exh. 6, § 5.00(n).
the underbuilding infiltration system supports our determination that the Board has not shown a valid local concern with regard to this condition. Â 20 Exh. 75, p. 19. Conditions 11 and 34 are therefore struck.
2. Snow Storage
Condition 12. No snow from the Site shall be deposited into any wetland resource area on the Site. Applicant shall make adequate provisions for snow to be removed and transported offsite as necessary and shall [*68] store snow on the Site in a manner that avoids impacts on neighboring properties. In particular, the snow storage area proximate to the Carlin property at 11 Reed Street, Milton shall be relocated so as not to drain on or be visible from the Carlin property.
Condition 39. All snow storage areas shall be located outside the 100 foot buffer zone.
With respect to Condition 12, the dispute addressed by the developer and the Carlins related to the proposed snow storage area near the Carlin property. HD/MW has agreed to eliminate the snow storage area originally planned to be near the Carlin property. Exhs. 105, P 29; 59, pp. 4-5; Tr. IV, 105. In their brief, the Carlins acknowledge the developer's position.
The developer now proposes that Condition 12 be modified to state: "The snow storage area located closest to the Carlin property line shall be eliminated. The snow storage area downgradient from the Carlins adjacent to the Bautista lot shall not be eliminated. HD/MW shall make adequate provision for snow to be removed and transported offsite as necessary." HD/MW brief, Exh. 1, P 3.
Mr. Turner testified that Condition 12 is reasonable and necessary to avoid degradation of wetlands [*69] and damage to abutting property, noting that snow storage on densely developed sites is difficult because there are limited opportunities for significant snow storage. He stated that reducing the site development footprint will reduce the amount of snow that would need to be stored, while increasing the amount of area available to store snow. Exh. 91, P 19.
The Board argues that Condition 39 is supported by environmental and property protection concerns. Mr. Turner testified that it is common to require snow storage areas to be located away from wetlands resources, and referred to DEP Snow Disposal Guidance, which recommends storing snow on upland areas away from water resources and drinking water wells because of the amount of pollutants that accumulate in cleared snow. Since the DEP guidance allows a buffer zone of 50 feet in emergency declarations, Mr. Turner suggested a greater setback should therefore exist for nonemergencies. Exhs. 91, P 28; 91-G, p 2. The Carlins support this condition.
Mr. Burke stated, however, that the guidance cited by Mr. Turner applies to private businesses and municipalities that dispose of snow. He and HD/MW's wetland scientist, Mr. Morrison, testified [*70] generally that there would be no negative impact from the project on the wetlands or the health and safety of occupants or neighboring properties. Mr. Morrison testified that the locations of snow storage have been sited and include construction erosion control measures to prevent negative impacts on wetland resource areas. Exhs. 88, P 6; 105, P 29; 107, P 7.
The Board did not identify which locations proposed by the developer would be within the 100 foot limit, or how they were particularly an area of risk. Therefore, the Board has not established a local concern that outweighs the need for affordable housing with regard to the siting proposed by the developer for snow storage, now that it has agreed to eliminate the snow storage closest to the Carlin property. The proposed modification of Condition 12 by HD/MW, however, does not address the requirement to protect wetlands. Therefore, we will modify the condition, retaining the first sentence of the condition and replacing the last sentence with the final two sentences of HD/MW's proposed language. Condition 39 is hereby struck.
3. Activity in Wetland or Non-Disturbance Zone
20 If this infiltration system were subject to the state Wetlands Protection Act, the developer would be required to comply with the requirements of the statute and its implementing regulations.
Condition 10. (a). No building construction [*71] activity shall occur within any wetland area or within the 25foot non-disturbance zone created by the Milton Bylaw, Chapter 15; (b) buildings shall not be erected within any wetland area or within the 25-foot non-disturbance zone created by the Milton Wetland Bylaw, Chapter 15; …
Activity within Wetlands or Non-Disturbance Zone. The parties have raised several issues relating to Condition 10(a): the non-disturbance zone, and lack of a waiver for the work to construct the access driveway, stormwater runoff effects on the Carlin property from upgradient properties, and wetlands inundation from the management of flow under the access driveway crossing of the wetland. The Board argues that this condition is necessary to prevent damage to environmentally sensitive areas abutting both sides of the wetland and the bridge and to protect abutting Town owned and private property.
The Board argues that purpose of the 25-foot non-disturbance zone is generally to "preserve the quality of certain wetland resources and serve the interests protected by this Bylaw," and the zone was "established to create a boundary or buffer between the activity proposed and the resource area to be protected." [*72] Exh. 4, § XI. It relies on testimony of Mr. Kiernan, Conservation Commission Chairman, that the project will negatively affect the wetlands on the site. Exh. 98, P 5. Specifically he stated that the non-disturbance zone would be clear cut for construction purposes. 21 Tr. I, 40. The Board argues that the requirement for the buffer zone can be waived only if the granting the waiver "will not have a significant adverse impact on the interests protected by this Bylaw." Exh. 4, § XI(d). Mr. Turner testified that Condition 10 provides a reasonable level of protection for the state's wetlands resources and downstream abutters. Exh. 91, P 16. See Exhs. 2, 6, 10. HD/MW argues that there will be no negative effect on the wetlands, citing the testimony of its wetlands expert, Mr. Morrison. Exh. 88, P 6; 107, P 2.
Neither the Board nor HD/MW has identified any aspects of the proposed development that would conflict with this local requirement, other than the wetland crossing. The Carlins acknowledge that some disturbance of the wetlands and the buffer zone must necessarily occur to construct the project, and state they do not object to a [*73] waiver of the wetlands regulations for this specific purpose. Their concern is that there be no more disturbance than necessary to construct the project. They argue instead that the developer's plans do not accurately depict the actual area to be impacted by the proposed wetland crossing.
Given the Board's approval of the access driveway crossing the wetlands, its denial of the waiver of Chapter 15 is unsupported by a valid local concern. To the extent it argues the developer must undertake a special permit review before construction, it mistakes the purpose of the comprehensive permit to subsume all other local permits. The hearing before the Board replaced any special permit process that would have been required before the Conservation Commission. See Exh. 98, PP 13-15. As we discussed in § III.C, supra, regarding the economic impact of this condition, Condition 10(a) will be modified consistent with the other provisions of the comprehensive permit, specifically to allow building construction activity in the wetlands and the non-disturbance zone to the extent necessary to construct and maintain the access driveway and wetland replication area. Similarly, Chapter 15 and § [*74] IV.B shall be waived to the same extent.
Condition 38. The Applicant shall provide a hydrological study confirming that the size of the culvert located under the driveway access is adequate for the anticipated water flow without increasing the potential for off-site flooding of abutting properties.
Hydrological Study. There is no disagreement that the culvert in the wetlands under the access driveway must be correctly sized to ensure there will not be an obstruction to water flowing through the system, including during higher intensity storms. Mr. Turner testified that Milton's subdivision regulations require culverts to be designed for the 100-year storm event. He stated that "a properly sized culvert beneath the access driveway is necessary to ensure that the hydrology of the wetlands system is not significantly altered" by the permanent impact of the
21 The Board's reference in its brief to a MassHousing website identifying buffer zones in other municipalities is disregarded, as that information was not admitted into the record of this proceeding. In any event, the existence of buffer zones in other municipalities does not determine whether maintaining the buffer zone is supported by a valid local concern in this circumstance. Board brief, p. 32.
wetlands crossing. Otherwise, water flow will be obstructed, particularly during higher intensity storms. Exhs. 91, PP 26, 27; 91-H. The Board put forth the testimony of John Kiernan, Chairman of the Conservation Commission, that a hydrological study is appropriate because the project as designed creates a significant [*75] potential for off-site flooding, and part of the site has a history of flooding. Exh. 98, P 7.
The Carlins assert that the developer has not adequately demonstrated the scope of the work in the wetlands. They contend that the plans do not accurately reflect the proposed work or the actual design of the wetlands crossing or its impacts. They argue that the requirement of the hydrological study is authorized by the Wetlands Bylaw and that the studies previously provided by the developer are flawed and cannot be relied upon. Exh. 102, P 17. They also argue specifically that no evaluation was made of the outlet structure at Randolph Avenue, and if it is undersized, it will cause prolonged inundation of the wetlands causing flooding on their property, resulting in a loss of trees and vegetation. Their witness, Janet Carter Bernardo, PE, a civil engineer, testified that during construction when the site is stripped of its trees and vegetation, the natural drainage of the site will be impacted and stormwater will surface flow into the wetland resources, and when the wetlands are "seasonally full of water, the area will flood to a greater degree, including on the Carlins' property as the volume [*76] of water backs up before exiting the Carlins' property." She also stated that prolonged exposure to flooding will cause the trees and vegetation to be impacted. Exh. 102, P 16.
HD/MW argues that Mr. Morrison testified that the proposed wetland crossing and 12 x 4 box culvert will not have an adverse impact on the wetlands. Tr. III, 40-41. Therefore, it argues that Chapter 15 and § IV.B should be waived and Conditions 10(a) and 38 should be struck. The developer argues that the Board has not submitted any evidence that the proposed box culvert is not properly sized or cannot adequately handle the water. It argues that Ms. Bernardo only speculated that flooding or standing water would occur on the wetlands on the Carlin property, but offered no data or analysis to support this conjecture. See Exh. 102, P 16. It argues that it has complied with DEP stormwater standards and already submitted a hydrological study performed by Mr. Burke which confirmed that even in the event of a 100-year storm the obstruction of water in the wetlands is de minimis.
Mr. Morrison, who designed the wetland replication area and protocol, disagreed with Ms. Bernardo. Although he agreed prolonged flooding [*77] would cause the impact she described, he testified that he did not think such a condition would be likely. He testified that the project-related change in hydrology of the wetlands will not result in a significant change in the vegetational community of the wetlands and that he would not expect the wetland crossing and culvert to cause a change to the wetlands or vegetation on the Carlin property. Exh. 107, P 5; Tr. III, 40-41, 48. He testified that a serious blockage of the kind that could cause significant impact, such as one caused by a beaver dam blocking the outlet structure outside the project site or on part of the HD/MW development, would be unlikely. Tr. III, 47; IV, 116-17; Exh. 66.
Although Ms. Bernardo's testimony suggested the possibility of water backing up on the Carlin property, the Carlins have not demonstrated that this will occur. We find Mr. Morrison's testimony in this regard more credible. We also note that the Board has approved this development, and had it believed the hydrological study was seriously flawed, it could have sought further peer review or denied the application for a comprehensive permit. However, as noted in § V.C, infra, what the Board cannot [*78] do is require another study to be conducted for a further substantive review of matters that the Board should have addressed before issuing its decision. Accordingly, Condition 38 is struck.
4. Stormwater from Upgradient Properties toward Carlin Property
Condition 10. … (c) documentation shall be provided demonstrating that the proposed stormwater system has been designed to accommodate the runoff from properties upgradient of the project site, that the natural runoff from such upgradient properties does not cause flooding around any buildings on the Site, and that any potential increase in stormwater volume over existing conditions will not negatively impact the downgradient system.
The Carlins argue that the proposed stormwater management system is flawed because stormwater intended to be diverted from entering the smaller building (Building 1) and the southernmost parking area will be diverted from the
Lombardi and Mullins properties to their property. 22 They argue the parking area proposed to be nearest their property does not comply with the zoning bylaw, §§ VILG, VI.C.6, VII.H.1, and which prohibits runoff from [*79] being channeled so as to increase the flow of stormwater into their neighboring property. Ms. Bernardo testified that construction of an elevated berm on the project site will capture some of the drainage, but the proposed two-foot wide one-foot high earth berm located along the rear property line will direct runoff from the Mullins and Lombardi properties toward the Carlin property. She testified that during construction the site is stripped of its trees and vegetation, causing the natural drainage of the site to be impacted and stormwater to surface flow into the wetland resources. Mr. Burke, on cross-examination, acknowledged that there were no features on the plans to address the construction-related impact of stormwater onto the Carlin property, and that he had not calculated the amount of water coming from the Mullins and Lombardi properties to the Carlin property, but he stated that construction would be done to ensure that no surface water from the Lombardi and Mullins properties will enter the Carlin property. His markings during cross-examination on Exhibit 59, p. 5 indicated flow toward and along the Carlin property. Exhs. 102, PP 16, 19; 105, P 28; Tr. W, 93-96, 121, 144. [*80]
HD/MW argues that the topography of the site slopes down toward Randolph Avenue so that, with gravity, stormwater will naturally flow toward Randolph Avenue, not toward the Carlin property, and that the grading in the area closest to the Carlin property will direct stormwater and snow runoff away from the Carlin property. The developer argues that Mr. Turner's peer review confirms this testimony, and the Carlins have not shown there will be runoff onto their property from the Mullins and Lombardi properties. Exh. 75, p. 8, P 20.
Citing Weston Development Group v. Hopkinton, No. 2000-05, slip op. at 20 (Mass. Housing Appeals Comm., May 26, 2004), the Carlins contend Mr. Burke's assertion that he will address the flow of stormwater to ensure no runoff occurs on their property is merely conjecture, because he did not know the amount of stormwater being intercepted and diverted. Tr. IV, 93, 96, 144. Mr. Burke has stated his intention to ensure compliance with this standard of the Stormwater Handbook, with the use of additional berms, if necessary. Tr. IV, 121-22. We will require this compliance by condition: HD/MW's revised stormwater management plans shall show the means by which [*81] the diversion of stormwater away from the Carlin property is managed. Condition 10(c) is retained.
E. Potential Impacts on Abutters
1. Setbacks and Buffer for Abutters
Condition 5. To protect the health and safety of the occupants of a proposed Project and of Milton, to protect the natural environment, to promote better site and building design in relation to the surroundings and municipal and regional planning, and to preserve open spaces, the Applicant shall submit the Site Plans to the Board for further approval. Â 23 Any such Site Plans shall provide for a vegetated buffer area along the southerly and westerly limits of the site not less than 50 feet wide.
Condition 25. To the maximum extent possible, the Applicant shall retain mature trees, particularly along the property lines to the north, west and south.
Both the Board and the Carlins ask the Committee to retain the second sentence of Condition 5, which requires a 50-foot vegetated buffer along the Carlin property line. They also ask that the denial of waivers of the zoning bylaw, §§ VII.G (parking area setbacks) and H (parking area design standards) be [*82] upheld. In support of the 50foot buffer, the Board does not cite a local requirement or regulation that mandates such a buffer. Rather it relies on the general testimony of its witness, Ms. Tougias, that the condition strikes a balance between development and
22 Their argument that this would constitute a nuisance or trespass is "not an issue within the Committee's jurisdiction." White Barn Lane, LLC, v. Norwell, No. 2008-15, slip op. at 23 n.15 (Mass. Housing Appeals Comm. July 18, 2011), citing Tiffany Hill, Inc. v. Norwell, No. 2004-15, slip op. at 3 n.4 (Mass. Housing Appeals Comm Sept. 18, 2011).
23 In its brief, the Board notes that the "subject matter of the first sentence of Condition 5 is addressed by Condition 1" and therefore "requests that the first sentence of Condition 5 be deleted." Board brief, p. 24. Accordingly, we will require the deletion of the first sentence of Condition 5.
protection of the environment and preservation of open space, and allows a more gradual transition in topography, providing a less steep slope for the development. Exh. 92, P 6. The Board also cites Princeton Development, supra, No. 2001-19, in which the Committee upheld a condition requiring a vegetated buffer for a rural bike trail on a former railroad right of way. It suggests that the buffer imposed here similarly strikes a reasonable balance between development and protection of the environment and wildlife.
The Carlins argue that the condition is based on § VIII.D.3(a), (e) and (f) of the zoning bylaw, which enables the town to impose conditions on site plans to protect adjoining premises against detrimental or offensive uses on a site, ensure proper use of the site with respect to unit density and proximity of adjacent buildings to one another, and to assure the adequacy of lighting to maintain a safe level of illumination [*83] on the site, and to shield lighting to protect adjacent properties. They refer to Ms. Tougias' testimony that proposed Building 1 is more than 40 feet higher that the two-story Carlin home (depending on the height of the roof), see Tr. III, 146. They argue that the parking area located near the Carlin property creates a stormwater impact as discussed above, a lighting impact from fixtures that will be visible to the Carlins even if the light does not illuminate their property, light overspill from vehicle headlights, and noise impacts from an electrical transformer.
The Carlins argue that the site layout plans fail to specify the limit of work or show a setback from the parking lot and Building 1 to the Carlin property line. They also argue that the proposed construction will necessarily require all the vegetation and trees between the parking areas and the Carlin property line to be destroyed to change the grades to create the parking area, building site and access drive, noting Mr. Burke agreed there would be some disturbance to existing conditions. Tr. IV, 103. Therefore, they argue that without a 50-foot buffer, the Carlins will be completely exposed to the full mass, scale, [*84] height, noise and lighting impacts from the cars exiting the garage level, lighting of the parking area, light from the three levels of residential apartments and their decks. Exh. 102, P 20. By contrast they argue, citing Ms. Bernardo's testimony, that the required buffer will slow water runoff, mitigate against noise and light impacts, provide a continuous upland corridor for wildlife habitat and minimize the heat impact of the new impervious surfaces on the Carlin property. Exh. 102, P 20. They cite Settlers Landing Realty Trust v. Barnstable, No. 2001-08, slip op. at 5 (Mass. Housing Appeals Comm. Sept. 22, 2003 order) (noting no logical connection between Board's dramatic reduction in project size and concerns for open space, but stating 25-foot buffer around entire site was an "appropriate" approach). They also argue that such a condition is ordinarily agreed to by developers when a dense residential development is proposed to abut a single-family housing neighborhood. Â 24 Mr. Turner testified that maintaining mature trees is supported by concerns to preserve wildlife habitat, reduce environmental damage and provide screening [*85] for the project's occupants as well as a buffer between the project and neighboring property and is required for many projects. Exhs. 91, P 21; 92, P 19.
The Board and the Carlins raised additional objections to the layout, location and design of the parking area closest to the Carlin property. Exhs. 101, P 14; 102, PP 21-25; 3, § VII.G. They argue that the project fails to meet parking requirements designed to protect abutters, including a zoning bylaw requirement that parking areas for five cars be "screened from the street and any lot of an adjoining owner with shrubs and trees of a size and number sufficient to provide effective screening within 3 years from the date on which shrubs and trees are established. The use of vegetated berms may be used to provide screening." Exh. 3, § VII. H.7. The Carlins also refer to the requirement that parking be designed in compatibility with the terrain and features of surrounding land, to avoid unnecessary removal of trees, and be designed to prevent lighting overspill to adjoining properties. Exh. 3, §§ VII.H.9-10.
HD/MW argues that the proposed parking area closest to the Carlin property complies with the 35-foot side yard setback and 35-foot [*86] parking lot set back requirements. Mr. Burke also stated that the closest point of either building to the Carlin property is 118.9 feet. Exhs. 59, p. 4; 86, P 18; 105, P 32. He stated that the "Carlin property will be appropriately screened from light, noise, dust, and stormwater during both the temporary period while HD/MW constructs its project and following the completion of construction." Exh. 105, P 28. Mr. Carlin testified that he understood that the developer would construct a berm to screen the parking and buildings from his home. Exh. 101, P 5.
24 The Carlins also argue that this condition would be required if the development were a conventional subdivision with less density.
The Board argues it has denied 1-ED/MW's request for a waiver of a 30-foOt rear yard setback requirement, citing the testimony of Ms. Tougias that the setback protects against the intrusion of taller buildings on abutting properties and protect abutters' use of their backyards. Board brief, p. 78. Exhs. 3, § VI.D.1, 3; 92, P 11; Tr. III, 132-33, 15860. HD/MW asserts that it arguably requires a waiver from the rear yard setback only to the extent that the border with the Mullins lot is considered subject to the rear yard, rather than the side yard, setback. Mr. Burke testified that the closest building on the project site is 39.2 feet [*87] away from the property line of the Mullins vacant lot and at least 190 feet away from abutting homes located in the rear yard. 25 Exh. 105, P 32.
HD/MW points out that the Board's required 50-foot vegetated buffer between the project site and the Bautista, Carlin, Mullins and Lombardi properties would require the elimination of the parking areas near the Carlin and Bautista properties. Exh. 59, p. 4. It argues that there is no local bylaw requiring this condition. The Board has not demonstrated a local open space or environmental concern that supports expanding the buffer beyond the setbacks proposed for the development. As noted by the developer, the proposal includes 257,347 square feet of open space already, over five times the amount required by Milton's bylaw. Exh. 59, p. 4.
The developer also argues that neither the Board nor the Carlins submitted substantive testimony regarding the impact of light and noise from the completed development on the Carlin property and they have therefore failed to meet their burden of proof. 26 To the extent the asserted local concern involves [*88] protection of abutters from the interference of light, noise, dust and stormwater, the Carlins have not demonstrated that a local concern supports the additional 15 feet buffer sought over the buffer established by the 35-foot side yard setback, and to the extent a waiver of rear setbacks is required, the setbacks established by the proposed project design. See § IV.E.2, infra. The project site is in an established, settled neighborhood, and is bordered on one side by the DPW property, thus separating neighboring properties from the DPW site. The proposed parking lot near the Carlin property will comply with the 35-foot side yard setback requirement. The developer plans to maintain as many existing mature trees as possible. We will require a condition that the developer will take measures to ensure that, with the modifications to the earth berm described below in § IV.E.2, the Carlin property will be adequately screened by the earth berm in the parking area, fencing and additional trees to be planted following construction that will create a vegetated buffer. Exhs. 22; 86, P 18; 105, PP 26, 28; Tr. II, 74-75.
We agree with the developer that the Board has not demonstrated credibly [*89] that the project must be shielded from abutters with a 50-foot buffer, as opposed to the setbacks proposed. Not only have the Board and Carlins not shown a local requirement for a 50-foot buffer, they have not demonstrated why such a large buffer is necessary in the context of this project. Herring Brook Meadow, supra, No. 2007-15, supra, slip op. at 26. Accordingly, Condition 5 is struck. Since the record is unclear regarding HD/MW's compliance with rear setbacks, we will grant a waiver of any rear setback requirements to the extent necessary to construct the project as proposed. See Exhs. 59, p. 4; 3, § VI.D.1, 3. We will retain Condition 25, but modify it to require that HD/MW shall retain mature trees "to the maximum extent reasonably practicable."
2. Exterior Lighting
Condition 24. All exterior lighting on the Site shall be installed and maintained so that no Tight or glare shines on any nearby property and, to the maximum extent reasonably feasible, so that headlight glare from vehicles entering or exiting the parking areas and any garage shall be shielded so as not to shine on abutting or other nearby properties. The Site shall [*90] be dark sky compliant.
25 If indeed, the closest building to the Mullins property is 39.2 feet away from the property line, the record does not indicate how the project fails to meet the 30-foot rear set back referenced by the Board.
26 We note that HD/MW has offered to include a condition that if possible, and subject to approval by the utility company, it shall attempt to relocate the proposed electrical transformer closest to the Carlin property depicted on the Grading and Utility Plan, Exh. 59, to a location further away from the Carlin property. HD/MW brief, Exh. 1, P 21. We will require the inclusion of this condition.
The Board and the Carlins argue that Condition 24 is supported by public safety and design concerns. They refer to Exh. 3, Zoning Bylaw § VII.H (parking design standards) which regulates offsite overspill from lighting of parking areas. Mr. Turner testified this condition is reasonable and required to reduce impacts on abutters from lights on the buildings and in parking areas as well as headlight glare. He noted that most towns require lighting fixtures that are "dark sky compliant." Exh. 91, P 20. Ms. Tougias agreed, testifying that balancing a safe level of illumination and shielding of lighting to protect adjacent properties is good architectural practice and a matter of common courtesy. Exh. 92, P 18. Ms. Bernardo stated that while the lighting is proposed to be directed downward, the lighting fixtures themselves will be visible from their property and the downward lighting effect will be diffused. Exh. 102, PP 23, 25.
Mr. Burke also testified that the closest building is 118.9 feet away from the Carlins' home, and that the closest light in the parking area will be 35 feet from the property line and 71 feet from the Carlins' home. HD/MW has agreed that [*91] the proposed project will be dark sky compliant, that the lights will be pointed downward, and there will be no light pollution on the Carlin property. Exhs. 86, P 19; 59, p. 4; 53-54; 105, P 26; 75, p. 6; 102, P 23; Tr. IV, 11213. Thus there is no dispute about its compliance with the last sentence of the condition.
The Carlins also claim that headlights from the parking area and garage exiting from Building 1 will overspill onto the Carlin property, shining onto their home, interfering with their use and enjoyment of their property. They argue that Mr. Burke acknowledged that SUVs and cars exiting the parking level with a finished elevation of 138 will have headlights that are two or three feet higher than the elevation of the finished grade south of Building 1, thereby permitting headlight glare to be directed onto the Carlin property, although he did not expect there would be a problem with light from cars shining on the Carlin property. Tr. IV, 110-12.
HD/MW proposes to place an earth berm at the edge of the parking area, sloping back toward the parking area to serve as a natural wall. Additionally, Mr. Burke stated that there will be a vegetated buffer between the parking spaces [*92] and the property line, as well as trees planted above the berm. Exhs. 86, P 18; 105, P 26; Tr. IV, 118. The developer also proposes a condition to require a "six foot tall cedar fence along the rear property line between its Property and the Carlin property" to provide additional screening. Â 27 HD/MW brief, Exh. 1, P 20. It argues that lights from cars, at about two to three feet above the ground, exiting the garage of Building 1 or the parking area closest to the Carlin property will be screened by the fence, the earth berm and trees planted above the berm, as well as the existing vegetated buffer on the Carlin property. Exh. 105, P 26. Therefore it argues, citing Mr. Burke's testimony, that the Carlin property is adequately screened from the parking area and the garage in compliance with the zoning bylaws that govern parking area design. Tr. IV, 119, 125-26.
HD/MW argues that neither the Carlins nor the Board have met their burden with regard to light and noise, that no light or noise studies were submitted to show adverse impacts that will occur as a result of the development. While no studies were submitted, the concerns the condition [*93] is intended to address are valid. Although the record shows that the developer intends to comply with this condition, we agree that it is appropriate to require that the developer ensure that lights do not shine into the Carlins' home. We will retain this condition, and will require HD/MW to ensure that the fencing, vegetation and the earth berm will be sufficient to screen lights from cars and SUVs. With respect to the effects of light and noise during construction, HD/MW's construction management plan shall address these concerns.
3. Ban on Parking Lot in Deed Restricted Area
Condition 13. No structure or parking shall be located within the Deed Restricted Area described in the Deed from Claire A. Kingston, Trustee, dated November 28, 2005 and recorded with Norfolk County Registry of Deeds in Book 23180, page 181.
The Board argues that this condition is required because the parking area proposed at the top of the development would be unsafe and hamper fire apparatus turnaround maneuvers. It argues that testimony of the fire chief and the Board's fire protection engineer witness showed an engine would need to back down around two bends in the parking lot to the end of [*94] the smaller building to turn around, and that a ladder truck would not be able to turn
27 We incorporate this proposed condition by HD/MW into the comprehensive permit.
around and would have to back down the entire length of the driveway to Randolph Avenue. Exhs. 93, P 21; 94, P 20; Tr. I, 66-68, 81-83. Relying on Ms. Tougias' testimony, it argues that eliminating the 36 proposed spaces would create additional room for fire and emergency vehicles and reduce the potential for environmental damage with less regrading and retaining walls. Exh. 92, P 12.
The developer argues that the purpose of this condition is to improperly rewrite a private deed restriction, and that the condition is more restrictive than the actual deed restriction, which prohibits the construction of a "commercial structure" or a "parking structure which will serve any commercial structure" in the restricted area. Exh. 12. It points out that Mr. Dirk agreed on cross-examination that the developer is not proposing to build a "parking structure." Tr. II, 126. It also notes that Mr. Holland reported that the Board stated during deliberations that the prohibition was for the purpose of saving Mr. Kingston from having to litigate whether the project violated the deed restriction. Exh. 103, P 8. Therefore, [*95] it argues, the condition is not based on a valid health, safety, or other local concern that outweighs the regional need for housing and it exceeds the Board's legal authority as it does not have the authority to rewrite the terms of a private deed restriction.
HD/MW claims that neither Fire Chief Grant nor Police Chief King supports the Board's argument regarding the need for more room for emergency vehicles to turn around.
The Board has not demonstrated that this condition is supported by a valid local concern. Even if addressing an abutter's alleged property interest in the deed restriction in its conditions was within its authority, the Board has not demonstrated that a paved turning area is different from a parking lot within the meaning of the deed restriction. 28 Therefore, this condition is struck. We are mindful, however, that our requirement for sufficient turnaround space for emergency vehicles may require HD/MW to modify this parking area. See § IV.B, supra.
4. Mechanicals on Roof
Condition 21. Any mechanicals that are installed on the roof shall not be visible from any home abutting the Site.
HD/MW [*96] argues that the Board's condition is not supported by a local regulation, and it has not demonstrated a valid local concern supporting this condition. Ms. Tougias testified that because nearby properties are at a higher elevation than the site, "good design practice" dictates that the mechanicals not be visible from adjoining property. Exh. 92, P 15. As HD/MW pointed out, the homes on the abutting lots are not located within 190 feet of the project buildings. Exh. 105, P 32. Therefore, the Board has not shown the likelihood that the mechanicals will be visible from neighboring homes, or that any visibility represents a valid local concern. Nevertheless, although we will strike this condition, we encourage the developer to ensure, to the extent reasonably practicable, that any mechanicals that are installed on the roof are not visible from any home abutting the site.
F. Project Design
1. Number and Configuration of Buildings and Units
Condition 2. The Project shall include no more than thirty five (35) units of rental housing. The Applicant shall indicate the mix of one and two bedroom units on its Site Plans. Four of the units shall be fully handicapped accessible.
[*97] Condition 6. To avoid deforestation of mature wooded area, preserve wildlife habitat, minimize impacts to wetlands, mitigate view and noise impacts to abutters along the rear property line, reduce the amount of impervious cover on the Site, make the project more consistent with the Commonwealth's sustainable
28 See Zoning Bylaw, § VII.H.12. which provides:
Parking Structures. Parking facilities provided in an enclosed structure shall meet ail requirements of the State Building Code and other applicable law and shall be subject to the requirements of this bylaw regarding buildings except that there shall be no parking required for such a structure...." Exh. 3.
development principles, and to render the Project more consistent with the character of the surrounding neighborhood, the development footprint shall be reduced and the massing of the buildings broken up by creating a series of smaller buildings.
As noted above in § III.B., the Board argues Condition 2 was not intended to preclude three-bedroom units, and now recommends modifying Condition to state that "The Applicant shall indicate the mix of one, two and three bedroom units on its Site Plans."
The Board specifies a precise number of units as the limit on the project size. However, the Board has not drawn any logical connection between its concerns about density, open space and the environment and the limitation of the development specifically to 35 units. See Settlers Landing, supra, No. 2001-08 slip op. at 5; 760 CMR 56.05(8)(d)2. The Board's [*98] reduction in project size to a maximum limit of 35 units without support for that specific figure is not consistent with local needs. Therefore, consistent with our rulings above, Condition 2 is modified to provide that the project shall include no more than 90 units and the applicable mix of units shall include three bedroom units in accordance with the Interagency Agreement.
The Board argues that Condition 6 is required by the extent of wetlands on the site and the proposed significant changes in topography. Mr. Turner stated that breaking up the buildings will make a better development because the site is steeply sloped and smaller building pads are more suitable for developments on a steeply sloped site. Exh. 91, P 15. Ms. Tougias also recommended reducing the scale and footprint of the buildings and elimination of the parking area between Building 1 and the Carlin property, and moving the building further back from adjoining properties. Exh. 92, P 7.
However, making a better development is not the standard for whether the Board has shown a valid local concern that outweighs the need for affordable housing and it does not support the breakup of the two residential buildings into [*99] multiple buildings. As the condition is not credibly supported, it constitutes an improper redesign of the project. See Webster Street Green, supra, No. 2005-20, slip op. at 12 (general or vague arguments alone regarding density and intensity are insufficient to warrant a reduction in a project size); Pyburn, supra, No. 2002-23, slip op. at 14 and discussion supra at § IV.A. Therefore Condition 6 is struck.
2. Number and Configuration of Parking Spaces
Condition 3. The Project shall comply with the Town of Milton's Parking Regulations contained in the Zoning By-law.
Condition 14. The Project shall include not fewer than sixty (60) standard parking spaces, ten (10) compact parking spaces and ten (10) handicapped spaces. Parking shall be located as shown on a new parking plan to be submitted by the Applicant. The Applicant shall be entitled to construct below grade spaces.
The developer challenges Conditions 3 and 14, which specify the number and type of parking spaces for the project. It also challenges the denial of its requested waiver of § VII.B.2 of the zoning bylaw. HD/MW proposes to construct 156 parking spaces for its 90 units, or 1.7 spaces per [*100] unit. Its witnesses, Mr. Burke and Dr. Dulaski, testified that the proposed number of spaces is reasonable. Exhs. 86, P 11; 87, P 4.
The Board argues that the development must comply with the local regulation requiring two parking spaces per unit for the Residence A zoning district (Condition 3) and its specific allocation of parking spaces (Condition 14). It argues that the parking space requirement is supported by public safety concerns and concern with preserving the integrity and amenity of the residential area. Its traffic engineer, Mr. Dirk, testified that two different parking requirements apply because HD/MW's project is located in both Residence A and Residence C districts. The zoning bylaw requires two parking spaces for each unit in the Residence A district and one parking space for each unit in the Residence C district. Exhs. 90, P 6; 3, § VII.B.2. Mr. Dirk nevertheless testified he believed the more stringent requirement should apply because it would not be practical to enforce both requirements. He stated that two spaces per unit was consistent with ITE's observed peak parking demand for a suburban residential apartment community, 1.94 spaces per dwelling unit. Exh. [*101] 90, P 6. He testified this requirement was designed to provide sufficient parking, ensure safe access and egress for all vehicles, reduce traffic congestion, and promote vehicular and pedestrian safety, as well as promote aesthetics and convenience. Exh. 90, PP 8-9. However, during his peer review of the project, Mr. Dirk agreed that 1.7 parking spaces per unit would afford sufficient parking to accommodate the parking demands for the residents and visitors of the development. He also acknowledged that ITE indicates that suburban apartment communities with limited access to public transportation have an average parking demand of 1.23 spaces. Tr. II, 124-25; Exhs. 32, pp. 11-12; 57, p. 13. Although Mr. Turner testified that this provision is intended to reduce traffic congestion, promote motorist and pedestrian safety, and preserve the amenity of the town's residential areas, he acknowledged that during his peer review, he concurred with Mr. Dirk's and HD/MW's view that 156 spaces for 90 units was acceptable. Exh. 91, P 13; Tr. II, 169-70. Ms. Tougias' general testimony that Condition 3 is supported because it has design characteristics appropriate to the neighborhood, respects the [*102] environment and avoids excessive degradation of the site is too vague to credibly support the condition. Exh. 92, P 4.
Mr. Dirk stated that the zoning bylaw, §§ VII and VII.H, support Condition 14's requirement of allocation of specific types of parking spaces, and the condition is consistent with ITE findings. Although this condition requires more than 2 spaces per unit, he stated that Condition 14 will ensure adequate handicapped access and address the need for adequate parking for residents and guests, given the prohibition of parking on Randolph Avenue, and the hazard of parking along the access driveway. Exh. 90, P 11.
HD/MW also argues that Condition 14 establishes 80 parking spaces, exceeding the two parking spaces per unit required by the zoning bylaw. Mr. Burke stated that Milton approved 1.5 spaces per unit at 50 Eliot Street. Exhs. 86, P 11; 81, p. 7.
The Board's argument that it is prudent to require two spaces to provide sufficient parking is negated by the requirement for the Residence C district of one parking space for each unit. Exh. 90, P 6; Exh. 3, § VII.B.2. Mr. Dirk's testimony that, with two different parking requirements, the more stringent one should apply to [*103] the entire site, is not credible on this record. We find therefore that Condition 3 and the Board's refusal to waive the parking space requirements of § VII.B.2 are not supported by valid local concerns. Accordingly, this condition will be modified to require 1.7 parking spaces per unit. Condition 14 is modified to require a comparable proportion of compact and handicapped parking spaces consistent with a total of 156 parking spaces.
3. Building Height
The Board denied the developer's request for a waiver from the 2Y2 or 35 feet maximum building height requirement in § V.A.I of the zoning bylaw. Exh. 76, p. 22. The Board's architect, Ms. Tougias, stated that, viewed from Randolph Street, Building 2, the larger building, will appear to be six stories. Tr. III, 153-57. She stated that the height and length of the proposed buildings are significantly larger than for the majority of residential structures in the town, and they will tower over the neighboring single-family homes. Exh. 92, P 17.
HD/MW argues that the Board is subjecting the developer to unequal treatment in comparison to unsubsidized housing developments, because there are taller unsubsidized housing developments in [*104] Milton, including Milton Landing, which is six stories and has a height of more than 60 feet, and 50 Eliot Street, which has a height of 46 feet. Fire Chief Grant acknowledged there are taller buildings in Milton used for residential purposes, and in the hearing before the Board he testified that he did not believe there was a problem with the building height from a firefighting perspective. Exhs. 81, p. 1; 82; Tr. I, 63-64. Mr. Burke testified that the development's buildings will not tower over the neighbors' homes and will comply with side yard setbacks. Exh. 105, P 32.
On this record, the Board has not established a valid local concern with regard to the denial of the building height waiver that outweighs the need for affordable housing. Accordingly the denial of the waiver from this requirement is overturned.
4. Architectural Style
Condition 23. The design shall reflect the architectural styles of the surrounding neighborhood which is a mix of single family colonials, Victorians, and mid-century split levels.
Ms. Tougias testified that this condition is supported by design considerations and consistency with the style of the single-family homes in the neighborhood, [*105] stating that the proposed buildings are significantly larger than the majority of the residential structures in Milton. She stated that Milton Hill House on Eliot Street is approximately 175 feet long and 75 feet wide. Exh. 92, P17; Tr. III, 158.
The developer argues that this condition requires it to redesign the architectural style of its proposed buildings, which are two garden style buildings, from both an architectural and an engineering perspective. See Exhs. 19, 24, 29, 30. It argues that the Board did not submit evidence of a valid local concern to justify this condition or identify a local bylaw which governs the architectural style of the buildings or that this condition is imposed on unsubsidized housing developments. HD/MW's application notes that "[t]he properties adjacent to the development site are comprised of various architectural styles, primarily single family homes sided with wood shingles or clapboard...." For the proposed development, the developer plans "[t]wo colors of vinyl clapboard, divided horizontally with trim bands sit[ting] above a stone-veneer base to define the levels of the building and help create scale. The fenestration includes various types [*106] and sizes of large durable vinyl windows and patio doors, along with balconies to provide variety to the building surfaces." It also intends to break up the lengths of the buildings into sections defined by roofs and projecting building elements at the corners and along the facades to reduce the overall length of the building. Exh. 24-4. HD/MW argues that the buildings will contain traditional building elements that are consistent with the architectural style of the homes in Milton, including projecting bays, dormers, walk-out decks, porches, columns and mansard roofs. Â 29 While the intent of the condition appears to address a local concern for the advancement of design consistency in the neighborhood, we note that the neighborhood includes the abutting DPW property. The condition, itself, is not supported by an identified local regulation or bylaw, and is improperly vague and ambiguous, since it identifies three distinct historical styles, spanning different time periods of residential design. The Board has not shown a valid local concern that outweighs the need for affordable housing to support this condition. It is therefore struck. [*107]
5. Lot Frontage
Condition 9. The Applicant shall comply with the lot frontage requirements of the Milton Zoning Bylaw through the use of other adjacent property it owns.
HD/MW had requested a waiver of Zoning Bylaw, § VI.A.A, lot frontage requirements. Exh. 3. It challenges both the denial of the waiver and the imposition of Condition 9.
We agree with the developer that the Board has not presented a valid local concern to support this condition and waiver denial. Ms. Tougias' general testimony that this requirement is essential for public safety, to provide safe access to the property and that lot frontage is an important factor in Milton Planning Board consideration of multifamily developments does not credibly support the condition here. Exh. 92, P 9. Dr. Dulaski testified that the proposed project was designed with the 24-foot access driveway to meet the maximum permitted width. He performed a TIAS that confirmed the project is designed consistent with accepted engineering principles and does not pose a safety risk. As he noted, the Board's witness, Mr. Dirk, did not dispute the findings during his peer review. Exhs. 106, PP 2-4, 9-10; 57. Accordingly, the Board has [*108] not demonstrated a local concern that outweighs the need for affordable housing to support retaining the lot frontage requirement and the comprehensive permit will be modified to grant this requested waiver and strike Condition 9.
V. LAWFULNESS OF THE BOARD'S CONDITIONS
In Zoning Board of Appeals of Amesbury v. Housing Appeals Comm., 457 Mass. 748 (2010) (Amesbury), the Supreme Judicial Court made clear that "the local zoning board's power to impose conditions is not all encompassing but is limited to the types of conditions that the various local boards in whose stead the local zoning board acts might impose, such as those concerning matters of building construction and design, siting, zoning, health, safety, environment, and the like." Id. at 749. The Amesbury court also stated, "...insofar as the board's …
29 Although this issue was not within the scope of the Carlins' intervention, their brief includes a section on this issue. We do not consider their arguments as they are outside the scope of their permitted participation.
conditions included requirements that went to matters such as, inter alia, project funding, regulatory documents, financial documents, and the timing of sale of affordable units in relation to market rate units, they were subject to challenge as ultra vires of the board's authority under § 21." Id. at 758. [*109] HD/MW challenges a number of conditions as exceeding the authority of the Board and requests that these conditions be struck from the comprehensive permit.
A. Conditions Imposing Fees
Condition 41. If the Building Commissioner determines that it is necessary to hire consultants to assist with the review of the building plans and proposed water, stormwater and wastewater system plans and plumbing, gas and electrical inspections, the Applicant shall pay for the reasonable cost of such review and inspection.
Condition 55. The Applicant shall pay the costs of all inspections (as may be required by the Building Commissioner) to ensure compliance with state and local regulations. Â 30
With regard to Condition 41, the Board argues that public health and environmental concerns support the fees, and that it is common to require developers to pay for the use of consultants to provide or assist with required inspections of large projects, as the work may exceed the resources of the Milton Inspectional Services Department, The Board relies on general testimony from Mr. Turner and Ms. Tougias that it is common to hire consultants [*110] to review plans for the building commissioner, but cites no local regulatory requirement. See Exhs. 91, P 29; 92, P 28. It argues this condition applies only if the building commissioner determines assistance is needed for inspections.
HD/MW argues that requiring the payment of fees for a second peer review or additional consultants after the issuance of the comprehensive permit exceeds the Board's authority and is beyond the scope of fees allowed in 760 CMR 56.05(5), which establishes permitted fees for the public hearing before the Board. It also opposes any peer review for a redesigned project, as it contends the Board lacks authority to redesign the project and thus require additional peer review of changes. It also argues that Condition 55 allows the building commissioner to charge any amount for any inspection he deems necessary. In its brief, the developer offers suggested language for a condition requiring it to pay all necessary inspection fees as set out in the Town's inspection fee schedule. HD/MW brief, Exh. 1, P 16. See Exhs. 95, P 15; 95-A. It argues it should not be required to pay any other fees.
We have typically prohibited boards [*111] from imposing fees that are not already established by regulation in a municipal fee schedule. Therefore, Conditions 41 and 55 are modified to provide that such other fees are imposed only if in compliance with municipal bylaws or regulations. In order to charge a particular fee, the Board is required to produce to HD/MW the local bylaw or regulation that authorizes charging such a fee in this context. See LeBlanc II supra, No. 2006-08, slip op. at 10.
B. Conditions Within the Province of the Subsidizing Agency
Condition 18. The Applicant shall execute a Permanent Restriction/Regulatory Agreement, in form and substance reasonably acceptable to the Board and Town Counsel (the "Town Regulatory Agreement"). The Town Regulatory Agreement shall be recorded with the Norfolk County Registry of Deeds prior to the issuance of a building permit for the Project. The Town Regulatory Agreement: (i) shall only become effective if and when the Regulatory Agreement with the subsidizing agency is terminated, expires or is otherwise no longer in effect and is not replaced with another regulatory agreement with another subsidizing agency; (ii) shall require that at least twenty five (25%) [*112] percent of the apartments in the project shall be rented in perpetuity to low and moderate income households as that term is defined in M.G.L. Chapter 40B, Sections 20-23; and (iii) shall in no event contain any provisions restricting or limiting the dividend or profit of the Applicant. While the Regulatory Agreement with the subsidizing agency (or one with another subsidizing agency) is in effect, the subsidizing agency shall be responsible to monitor compliance with affordability requirements pursuant thereto.
30 The Board proposes to eliminate Condition 65, addressing reimbursement of attorneys' fees and expenses. Therefore, this condition is struck.
Condition 19. When the Town Regulatory Agreement takes effect, the affordability requirements shall be enforceable by the Town or its designee, to the full extent allowed by M.G.L. Chapter 40B, Sections 20-23. At such time as the Town becomes responsible for monitoring the affordability requirements for the Project, the Applicant shall provide the Town with a reasonable monitoring fee.
The Board argues that in the event the subsidizing agency's regulatory agreement ceases to be in effect, unless a town regulatory agreement is in place, Milton will be unable to enforce the affordability requirements for maintenance of the units on the Subsidized Housing Inventory (SHI) [*113] thereafter. Citing Zoning Bd. of Appeals of Wellesley v. Ardetnore Apartments Ltd Partnership, 436 Mass. 811, 825 (2002), it notes that developments are required to remain affordable as long as they benefit from the waivers from local requirements obtained in the comprehensive permit. Ardemore stated, "[u]nless otherwise expressly agreed to by a town, so long as the project is not in compliance with local zoning ordinances, it must continue to serve the public interest for which it was authorized." Id. at 825.
The developer argues that these conditions are unsupported by local concerns, exceed the Board's authority and interfere with the regulatory discretion of MassHousing, citing Attitash Views, LLC v. Amesbury, No. 2006-17 (Mass. Housing Appeals Comm. Oct 15, 2007 Summary Decision), which was affirmed by Amesbury, supra, 457 Mass. 748, 764-65. HD/MW argues that the Board submitted no evidence to support these conditions. We note the Board has provided no evidence regarding MassHousing's position with regard to this condition. See Delphic Associates v. Hudson, supra, No. 2002-11, [*114] slip op. at 8 ("We find that although the Board's interest in ensuring longterm affordability is a legitimate local concern, the Board has not met its burden of proving that protection from extinguishment of the affordability restriction on foreclosure outweighs the regional need for affordable housing"), citing 760 CMR 31.06(7); Hanover, supra, 363 Mass. 339, 367. Similarly, the Board has not sought testimony or evidence regarding DHCD' s position on such a condition. Since DHCD has established guidelines regarding regulatory agreements in the Local Initiative Project (LIP) context under Chapter 40B, its view of the Board's conditions would be important. Exh. 1 (Guidelines), § VI.
The Board has also inadequately briefed the issue of the responsibility of the subsidizing agency and the role of DHCD with regard to maintaining the affordability obligations under the regulatory agreement. According to the Guidelines, the purpose of a regulatory agreement "is to memorialize the rights and responsibilities of the parties" and provide "for monitoring of the project throughout the term of affordability." Exh 1, p. VI-10. [*115] Therefore, if it would be appropriate for continued monitoring of affordability after the termination of a subsidizing agency's role, it would be important to consider DHCD's role with regard to approving and executing regulatory agreements and maintaining oversight of them. See Exh. 1, pp. VI-10-12.
Finally, under Attitash, as confirmed by Amesbury, two considerations are in play: First, as we noted, it is important that the Board not "impinge on the regulatory responsibilities of the subsidizing agency," Attitash, supra, No. 200617, slip op. at 7. Additionally, a requirement to execute an additional regulatory agreement subject to the review and approval of the Board and Town counsel represents "the sort of condition subsequent requiring future review and approval [by the Board] of which we have frequently disapproved." Id. at 9. Therefore, on the record before us, the Board has not demonstrated that requiring HD/MW to execute and record an additional regulatory agreement with the Town in the fashion it has set out is within the authority of the Board. Accordingly this condition is struck. Â 31
C. Conditions [*116] Subsequent Requiring Inappropriate Post-Permit Review
The parties are in agreement that conditions that merely require post permit review for consistency with the final comprehensive permit are proper. HD/MW challenges a number of conditions on the ground that they improperly
31 In addition, the Board has not addressed whether Conditions 18 and 19 would create an additional affordable housing restriction under G.L. c. 184, §§ 31-32, and would require IID/MW to convey an interest in property in exchange for the grant of a comprehensive permit, or whether it would be within the Board's authority under Chapter 40B. See 135 Wells Avenue, LLC v. Housing Appeals Comm., 478 Mass. 346, 356-57 (2017). Also, affordable housing restrictions held by a city of town must be approved by the Undersecretary of DHCD. G.L. c. 184, § 32.
require post permit review that goes beyond review for consistency with the comprehensive permit. In its brief, the developer submitted proposed modifications to certain of these conditions that it is willing to accept. The Board similarly offered modifications to certain conditions. Where applicable, we have applied the modifications to the conditions.
In LeBlanc II, supra, No. 2006-08, slip op. at 7, we noted that inappropriate conditions subsequent "undermining the purpose of a single, expeditious comprehensive permit" shall be struck or modified, and that "[t]he Board is permitted to designate individuals or municipal departments with expertise to review various aspects of the plans for consistency with the final comprehensive permit. The Board may even conduct that review itself, if it has the necessary expertise, as long as the review is for consistency with the permit." We stated that improper conditions [*117] subsequent are "conditions that reserve for subsequent review matters that should have been resolved by the Board during the comprehensive permit proceeding. Such conditions include, for example, those requiring new test results or submissions for peer review, and those which may lead to disapproval of an aspect of a development project." Id. at 7-8 and cases cited. "Our precedents, as well as 760 CMR 56.05(10)(b), 'permit technical review of plans before construction, and routine inspection during construction, by all local boards or, more commonly, by their staff, e.g., the building inspector, the conservation administrator, the town engineer, or a consulting engineer hired for the purpose. Such review ensures compliance with the comprehensive permit, state codes, and undisputed local restrictions, as well as any conditions included in the final written approval issued by the subsidizing agency." Id. at 8, quoting Attitash, supra, No. 2006-17 at 12.
Condition 1. The Project shall be constructed in conformance with the Site and Architectural Plans ("Site Plans") to be submitted for Site Plan Review in accordance with this Decision. The [*118] final Site Plan is subject to review and approval for consistency with this Decision by the Building Commissioner. Certain sections of the final Site Plans are also subject to review for consistency with this Decision by other Town officials as set forth in the Conditions below. Â 32
The Board argues that it is necessary for the building commissioner or other town officials, as appropriate, to review site plans for consistency with the permit. Joseph Prondak, the Building Commissioner, testified that site plan review is applicable to Chapter 40B and unsubsidized projects in Milton and Milton requires developers to submit detailed final site plans for review to ensure that the more detailed plans comply with the final permit. Mr. Holland agreed he would not have a problem submitting site plans for review for the project ultimately approved. Exhs. 95, PP 5-6; 3, § VIII.D; Tr. I, 144-45. We agree that this sort of review for consistency with the final comprehensive permit is appropriate.
Condition 1 is modified to state:
The Project shall be constructed in accordance with the Site Development Plans prepared by DeCelle Burke & Associates, [*119] Inc., revised May 29, 2015, Sheets 1-13, Exh. 59, as modified by this Comprehensive Permit. Final detailed Site and Architectural Plans ("Site Plans") shall be submitted to the Building Commissioner for review for consistency with the final Comprehensive Permit by the Building Commissioner or other Town officials or individuals with expertise to review the plans for consistency with the Comprehensive Permit.
The Board may assist the Building Commissioner in designation of the appropriate individuals or municipal departments to conduct the review. See LeBlanc II, No. 2006-08, slip op. at 7-8, App. at 2.
For this condition, as with all conditions and provisions in the final comprehensive permit, any specific reference made to the "Board's Decision," "this Decision" or "this comprehensive permit" shall mean the comprehensive permit as modified by the Committee's decision. Any references to the submission of materials to the Board, the building commissioner, or other municipal officials or offices for their review or approval shall mean submission to the appropriate municipal official with relevant expertise to determine whether the submission is consistent with the final comprehensive [*120] permit, such determination not to be unreasonably withheld. In addition such review
32 The Board proposes that Condition 20 should be deleted as duplicative of Condition 1. Therefore, Condition 20 is struck.
shall be made in a reasonably expeditious manner, consistent with the timing for review of comparable submissions for unsubsidized projects. See 760 CMR 56.07(6).
Condition 35. In connection with Site Plan Review, the Applicant shall submit updated Stormwater Designs and a proposed Operation and Maintenance Plan to the Department of Public Works for review and approval.
Condition 38. The Applicant shall provide a hydrological study confirming that the size of the culvert located under the driveway access is adequate for the anticipated water flow without increasing the potential for off-site flooding of abutting properties. Â 33
Condition 43. Prior to the filing of a building permit, the Applicant shall provide drainage plans to the Department of Public Works. Applicant shall be solely responsible for the costs of the installation of the drainage improvements.
HD/MW argues generally that these conditions also requires it to seek a new comprehensive permit determination from the Board. Mr. Turner testified [*121] that it is standard for the DPW to review stormwater designs and operations and maintenance plans. Exh. 91, P 25. Joseph Lynch, DPW Director, testified that the DPW typically requires submission of final stormwater designs and proposed operation and maintenance plans and drainage plans to the DPW for review. He also testified that the costs of drainage improvements are typically paid for by the developer. He stated that the review is for consistency with the final comprehensive permit and with local, state and federal law. He also stated that the developer is required to submit the designs and plans under the National Pollutant Discharge Elimination System Program, given the property's proximity to wetlands. He stated this review was critical because preliminary plans submitted are often not detailed. He stated this procedure applies to unsubsidized housing as well as to Chapter 40B developments. Exh. 97, PP 7, 8, 11.
The Board argues that we have required developers to submit drainage plans when none were provided to the Board with the preliminary plans for the comprehensive permit proceeding. See An-Co, Inc. v. Haverhill, No. 199011, slip op. at 18 (Mass. Housing Appeals Comm. [*122] June 28, 1994) (developer's deferral of final calculations and engineering plans is basis for condition requiring their submittal), citing John Owens v. Belmont, No. 1989-21, slip op. at 11-14 (Mass. Housing Appeals Comm. June 25, 1992).
Although it argues that the Board has not met its burden with regard to Condition 43, and that the stormwater system complies with the 10 DEP standards and HD/MW has already submitted peer reviewed drainage calculations, citing Exhs. 65; 75, p. 1, the developer offers a modification of Condition 43, to require drainage plans prior to the commencement of construction, and it agrees to responsibility for the costs of installation of drainage improvements. HD/MW brief, Exh. 1, P 10.
Since we have required the developer to provide revised plans that ensure that stormwater runoff from upgradient properties is not diverted to the Carlin property, HD/MW must submit those plans to the DPW for review, see note 34, HD/MW shall be required to comply with Conditions 35 and 43, which are modified to require review for consistency with the final comprehensive permit.
Condition 26. The Applicant shall submit a revised Landscaping Plan with the Site [*123] Plans for Site Plan Review consistent with this Comprehensive Permit.
The Board argues that the Committee has upheld review of landscaping plans in Owens, supra. See also LeBlanc II, supra, App. at 19. The developer's proposed alternative condition, "[t]o the extent necessary, HD/MW shall
33 We determined, in § IV.D.3, supra, that Condition 38 was struck on the ground that a valid local concern had not been demonstrated to support it. A condition requiring further hydrological testing falls squarely within the category of an improper condition subsequent, a condition that reserves for subsequent review matters that should have been resolved by the Board during the comprehensive permit proceeding. Condition 38 is struck on this basis as well. HD/MW, however, is required to comply with Condition 10(e), which requires the submission of documentation demonstrating the developer has addressed the issues relating to off-site flooding of abutting properties. See §§ IV.D.3, 4, supra.
submit … updated landscaping plans for review to ensure consistency with the Committee's decision" effectively agrees with this condition. HD/MW brief, Exh. 1, P 2. We will modify this condition to require the developer to submit updated landscaping plans with the Site Plans for review for consistency with the final Comprehensive Permit.
Condition 36. The Applicant shall apply to the DPW for a "New Drain/Excavation in Right-of-Way" Permit prior to installation.
The Board argues that this is a requirement typically made on all new properties, even those that are not Chapter 40B projects. DPW Director Lynch stated that all new properties must apply to the DPW for such a permit. Exh. 97, P 9. HD/MW points out that the Board has required it to obtain a separate permit, although, under Chapter 40B, individual permits are to be included in the one comprehensive permit issued by the Board. [*124] We agree with the developer. The Board has not demonstrated that this permit should be exempted from inclusion in the comprehensive permit. Therefore, this condition is struck.
Condition 42. All designs for connection of the Project to the municipal water system and the municipal sewer system and the designs for stormwater management shall be subject to review and approval for consistency with this Decision and for compliance with the Town's technical requirements for water and sewer system connections and stormwater management by the Department of Public Works and the Building Commissioner.
HD/MW generally objects to this condition as a condition subsequent, and proposes a modification of this condition that excludes review for compliance with technical requirements. HD/MW brief, Exh. 1, P 9. Building Commissioner Prondak testified that Milton requires all developers to submit designs for connections for municipal water and sewer systems, as well as for stormwater management, to the DPW for review, and he signs off on water and sewer connection designs after the DPW reviews and approves them. He noted that he views this condition as requiring him to review the designs for [*125] consistency with the final comprehensive permit. Exh. 95, P 8. Accordingly, we will add a clarification that the review for technical requirements for water and sewer system connections and stormwater management is to be for consistency with the final comprehensive permit.
Condition 46. Prior to the issuance of a Building Permit, the Building Commissioner shall review the Site Plans for consistency with this Comprehensive Permit and the Applicant shall demonstrate to the satisfaction of the Building Commissioner that:
a. all Site Plans and landscaping plans have been reviewed by the Building Commissioner for consistency with this Comprehensive Permit;
b. the Applicant has submitted all plans to the Massachusetts Department of Transportation and has obtained any necessary approvals and permits for access on Randolph Avenue
c. the applicant has paid all reasonable fees for consultant review of site, building and water, stormwater and wastewater plans to ensure that this Project complies with this Comprehensive Permit and state and local requirements (except as waived by this Comprehensive Permit) and all reasonable consultant fees required by the Town for plumbing, electrical, [*126] and gas inspections. Inspection fees incurred after the issuance of the building permit shall be paid upon invoice.
d. the Applicant has initiated and participated in a pre-construction meeting to discuss the proposed construction schedule with its contractor and the Town, including but not limited to the Building, Public Works, Police and Fire Departments.
e. the Board of Health and the Building Commissioner have approved the Construction Management Plan.
Condition 48. Prior to commencement of construction and subject to approval by the Building Commissioner, the Applicant shall provide a Construction Management Plan that shall include but not be limited to: limit of work areas, the protection of abutting properties, the locations for storage of construction materials and equipment, dust and airborne particle control, security fencing, trash areas, earthwork calculations to determine earth and rock removal, the timetable for excavation and removal of ledge on the Site, if any, and the approximate number of necessary truck trips.
The Board argues that Conditions 46 and 48 are consistent with municipal practice and are necessary to ensure compliance with the comprehensive [*127] permit and town requirements. The Board correctly points out that construction management plans are typical for all projects, both those constructed under Chapter 40B and those not subsidized. Building Commissioner Prondak testified that Milton requires such a plan for developments like this one. Exh. 95, P 11. HD/MW only makes general objections regarding post permit review and proposes specific modifications of aspects of this condition. We will modify these conditions to clarify that all approvals are for consistency with the comprehensive permit, with the exception of the Mass Department of Transportation review, and that fees referenced in the permit shall be those that are substantiated by applicable bylaw or regulation.
Condition 47. During construction, the Applicant shall conform to all local, state and federal laws regarding air quality, noise, vibration, dust and blocking of any roads. The Applicant shall at all times use reasonable means to minimize inconvenience to residents in the general area. The Applicant shall provide the Police Department with the name and 24-hour telephone number for the project manager responsible for construction. The hours for operation [*128] of construction equipment, deliveries and personnel shall be determined by the Building Commissioner. Any noise or traffic complaints during these hours will be investigated by the appropriate Town agencies and departments.
The Board argues that public safety, public health and environmental concerns support this requirement because of the location of the project in a thickly settled neighborhood bordering on a well-traveled state highway, as Ms. Tougias testified. Exh. 92, P 32. Building Commissioner Prondak and Mr. Turner testified that the condition is a typical requirement in a construction management plan. Exhs. 95, P 10; 91, P 33.
HD/MW expresses concern that the building commissioner would exercise discretion regarding work hours for the project, and argues that Milton does not publish designated construction hours applicable to all construction projects, and this was not a condition imposed on some unsubsidized projects, citing to grants of a variance or special permit. Exhs. 2-3, 81-82. In light of the neighborhood and proximity of abutters, we consider this to be a reasonable condition with a modification to require that the building commissioner shall impose reasonable [*129] requirements for hours of operation.
Condition 50. In the event of any off-site erosion or deposition, Applicant shall be given written notice of the problem and Applicant shall use best efforts to correct the situation. If for any reason a remedy is not implemented within one week of the day of notification, work on the Site shall cease and desist until such time as remedial measures are implemented, inspected, and approved by the Town.
HD/MW suggests modifying this condition to remove the second sentence. The Board argues that this is a typical condition it includes for all construction projects. DPW Director Lynch testified that Milton typically gives developers less than a week to remedy off-site erosion or deposition. Exh. 97, P 12. We consider this a reasonable condition. It is retained.
Condition 52. Prior to commencement of construction, the Applicant shall provide a blasting/drilling plan for review and approval by the Fire Chief and the Building Commissioner that includes methods to protect buildings, residents, pedestrians, and vehicles, and coordination with the DPW, the DOT and utility companies. All drilling and blasting pertaining to the Project and/or [*130] Site shall be in accordance with federal, state and local blasting permit laws and regulations and in accordance with the conditions contained thereto.
The Board argues that this is a typical condition, and even if the developer does not expect to perform any blasting or drilling, there may be a need if it encounters unexpected ledge. HD/MW argues that there will be no blasting or drilling on the site. It offers a modified condition providing that in the event it determines it is necessary to blast or drill, it shall provide a plan, consistent with the first sentence of Condition 52. HD/MW brief, Exh. 1, P 14. We will modify this condition to require that, prior to the commencement of construction, the developer shall provide either the required blasting/drilling plan, or a statement certifying that there will be no blasting or drilling on the project site. Should it thereafter determine any blasting or drilling is necessary, it shall promptly amend its blasting and drilling report to provide the required blasting/drilling plan.
Condition 53. Prior to the issuance of the Certificate of Occupancy, the Applicant shall submit an as-built plan stamped by a Registered Professional [*131] Engineer in Massachusetts that shows all construction, including all utilities, grading and other pertinent features. This as-built plan shall be submitted to the Building Commissioner for approval and to the Board for its files. The Applicant shall also submit a letter from the Project architect and engineer stating that the building, landscaping and site layout comply with the Site Plans, the Stormwater Management Report, and the requirements of this Comprehensive Permit.
The Board argues that this is a typical and universally accepted requirement for all major projects, and some smaller ones. Exh. 95, P 14. HD/MW argues generally that this condition is an improper condition subsequent and proposes a modification which would provide for filing the as-built plan and letter as described in Condition 53, but not require the building commissioner's approval. HD/MW brief, Exh. 1, P 15. We will modify the condition to require that the as-built plan is to be reviewed for consistency with the comprehensive permit.
D. Other Conditions Challenged as Unlawful
Condition 62. This Comprehensive Permit shall expire if construction is not commenced within three years from the date [*132] of [sic] this Comprehensive Permit becomes final as provided in 760 CMR 56.05(12)(c), and subject to the tolling provisions of 760 CMR 56.05(12)(c). The Applicant may apply to the Board for extensions to this Comprehensive Permit in accordance with 760 CMR 56.05(12)(c).
Condition 63. If the Applicant revises any of the Plans (or any other materials listed in Item 2 hereof), it shall present the revised plans or other materials to the Board in accordance with 760 CMR 56.05(11).
The Board argues that these conditions are intended to reflect applicable law and has proposed a modification. HD/MW argues that Conditions 62 and 63 exceed the Board's authority because they restate the Committee's regulations in an inaccurate or incomplete manner, and therefore should be struck. HD/MW is correct that the Board has inaccurately characterized the Committee's regulations as they reflect only portions of the applicable regulations. Moreover, since they are intended to reflect the Committee's regulations, they are superfluous. Accordingly, Conditions 62 and 63 are struck. [*133] Â 34
Condition 56. If any part of this Comprehensive Permit is for any reason held invalid or unenforceable, such invalidity or unenforceability shall not affect the validity of any other portion of this Decision.
HD/MW argues that this condition is unlawful because a comprehensive permit is not a contract, citing Autumnwood, supra, No. 2005-06, slip op. at 20 (striking condition that Board's conditions "supersede all other documents or agreements concerning the development"). The developer also suggests that this condition should be struck because the Committee has the power to render the entirety of the Board's decision moot. This provision is reasonable and is retained.
Condition 58. The Board shall retain jurisdiction over the Project to ensure compliance with the terms and conditions of this Comprehensive Permit.
The Board proposes in its brief to eliminate this condition. Condition 58 is struck.
Condition 60. Any person aggrieved by this Comprehensive Permit may appeal pursuant to the Act.
The Board proposes in its brief to modify this condition to provide "or a Comprehensive Permit ordered as a result [*134] of an appeal therefrom." Board brief, p. 75. HD/MW also proposes a modification of this condition. Since our standard decision provides for appeal of our comprehensive permit decisions, this condition is struck.
Condition 61. Subsequent to the expiration of all applicable appeal periods and prior to the commencement of construction, the Applicant shall record this Decision with Norfolk County Registry of Deeds and shall provide
34 HD/MW did not challenge Condition 64 in its brief. However, we accept the proposed modification suggested by the Board in its brief and incorporate it into this decision.
the Board and the Building Commissioner with a copy of this Decision with the applicable recording information.
The Board proposes to amend Condition 61 to replace "Decision" with "Final Comprehensive Permit as defined by 760 CMR 56.05(12)(a)." HD/MW agrees to the recording requirement but proposes eliminating the requirement of providing a copy of the recording information to the Board and the building commissioner. HD/MW brief, Exh. 1, P 18. We will retain the courtesy requirement to provide copies to the Board and building commissioner.
VI. Massachusetts Environmental Protection Act (MEPA) Requirements
The Board claims that the project is subject to review by the Executive Office of Energy and Environmental Affairs [*135] (EOEEA) under the Massachusetts Environmental. Protection Act (MEPA), G.L. c. 30, §§ 61-621, because the project will meet or exceed a MEPA review threshold -- that the project is expected to alter 5,000 or more square feet (sf.) of bordering or isolated vegetated wetlands. See 301 CMR 11.03(3)(b)1.d. The Board argues that the access driveway crossing over the bordering vegetated wetlands will cause temporary and permanent alteration of more than 5,000 sf. 35
The proposed access driveway crossing across the wetlands will necessitate the alteration of bordering vegetated wetlands on the project site. See Exh. 59, p. 5. Mr. Burke, the project engineer, determined that the project, as proposed, will only alter 4,854 sf., of which 4,344 sf would be permanently altered and 510 sf would be temporarily altered during construction of the access drive. Exh. 86, P 6. In his original design Mr. Burke proposed using two foot-wide hay hales for erosion control. Tr. IV, 124. His calculation of a total disturbance of 4,854 sf., however, did not include the area occupied by the hay bales as part of temporarily altered [*136] wetlands, and he acknowledged that had he included that area, the total area of alteration would have exceeded 5,000 sf. Tr. IV, 71.
Using Mr. Burke's proposed layout plan, the Board's engineer, Mr. Turner, measured total altered wetlands to be 5,233 sf, of which 4,339 sf would be permanently altered. Exhs. 91, PP 3, 9; 59; Tr. II, 167-68. In response to Mr. Turner's pre-filed testimony, Mr. Burke modified his design to replace the hay bales with an erosion control barrier consisting of geotextile fabric attached to a welded wire fence mounted on steel staked posts along the work limit boundary where the bales of hay were to be laid, maintaining a total altered area of 4,854 sf. Exhs. 105, PP 4-5; 105-1. Mr. Turner agreed that replacing the hay bales with the geotextile barrier would reduce his calculation of 5,233 sf. of total altered wetlands by the area attributable to the hay bales to less than 5,000 sf Tr. II, 164-68.
The Carlins argue that Mr. Burke's testimony that the impact on the wetlands would be less than 5,000 square feet is not credible, and that he professed ignorance and avoided answering questions designed to elicit an admission that the wetlands disturbance would [*137] be more than 5,000 sf. They challenge his credibility generally because he said he should be trusted although detailed information is not shown on the plans he prepared. Tr. IV, 70, 142.
Much of the temporarily impacted area shown on the grading and drainage plan consists of the area 2 to 2 1/2 feet on either side of the roadway to the work limit boundary. Tr. IV, 70, 76; Exh. 59, p. 5. The Carlins' witness, Ms. Bernardo, testified that it would not be practical to expect that construction of the roadway would remain only within the proposed work area of only two feet on either side of the access driveway, as "the walls sit on a wall base and the box culvert beneath the walls will be keyed into footings that require excavation below the finished grade and will extend outward from the walls necessarily pushing the excavation further into the wetland resource area...." Exh. 102, P 13. She estimated that the increase in width of the work area would cause a disturbance closer to four feet on either side of the retaining walls bringing the amount of disturbance over the 5,000 sf. threshold. Exhs. 102, P 13; 59, p. 13. Â n 36
35 The developer argues that the Board cannot raise this issue as it was not included in the Pre-Hearing Order. Although the Board may have waived this by not including it in the Pre-Hearing Order, the Committee must comply with 760 CMIt 56.07(5)(c).
36 Condition 30's requirement for the access driveway to have five-foot sidewalks on either side of the driveway would also increase the total altered area of the wetlands. RD/MW also argues that Condition 29's required addition of a right-hand turn lane would increase the wetlands altered area, although it offered no citation or explanation.
On balance, we [*138] conclude that Ms. Bernardo's testimony regarding the extent of the potential temporary disturbance to the wetlands is more credible than that of Mr. Burke. We conclude that the disturbance is close enough to the MEPA threshold that there is a reasonable likelihood that the disturbance will meet or exceed the MEPA threshold.
Accordingly, HD/MW shall either file an ENF with the EOEEA pursuant to 301 CMR 11.01(4)(a) or a request for an advisory opinion from the Secretary under 301 CMR 11.01(6) within 30 days of this decision, serving a copy thereof on the Committee. If applicable, pursuant to 760 CMR 56.07(5)(c), the comprehensive permit shall not be implemented until the Committee has fully complied with MEPA, and the Committee will retain the authority to amend our decision in accordance with the findings or reports prepared in accordance with MEPA requirements.
VII. CONCLUSION AND ORDER
Based upon review of the entire record and upon the findings of fact and discussion above, the Housing Appeals Committee concludes that the decision of the Board is not consistent with local needs. The decision of [*139] the Board is vacated and the Board is directed to issue a comprehensive permit that conforms to this decision as provided in the text of this decision and also subject to the following conditions.
1. Any specific reference made to the "Board's Decision," "this Decision" or "this comprehensive permit" shall mean the comprehensive permit as modified by the Committee's decision. Any references to the submission of materials to the Board, the building commissioner, or other municipal officials or offices for their review or approval shall mean submission to the appropriate municipal official with relevant expertise to determine whether the submission is consistent with the final comprehensive permit, such determination not to be unreasonably withheld. In addition such review shall be made in a reasonably expeditious manner, consistent with the timing for review of comparable submissions for unsubsidized projects. See 760 CMR 56.07(6).
2. Should the Board fail to carry out this order within thirty days, then, pursuant to G.L. c. 40B, § 23 and 760 CMR 56.07(6)(a), this decision shall for all purposes be deemed the action of the [*140] Board.
3. Because the Housing Appeals Committee has resolved only those issues placed before it by the parties, the comprehensive permit shall be subject to the following further conditions:
(a)Construction in all particulars shall be in accordance with all presently applicable local zoning and other bylaws except those waived by this decision or in prior proceedings in this case.
(b)The subsidizing agency may impose additional requirements for site and building design so long as they do not result in less protection of local concerns than provided in the original design or by conditions imposed by the Board or this decision.
(c)If anything in this decision should seem to permit the construction or operation of housing in accordance with standards less safe than the applicable building and site plan requirements of the subsidizing agency, the standards of such agency shall control.
(d)No construction shall commence until detailed construction plans and specifications have been reviewed and have received final approval from the subsidizing agency, until such agency has granted or approved construction financing, and until subsidy funding for the project has been committed.
[*141] (e) The Board shall take whatever steps are necessary to ensure that a building permit is issued to the applicant, without undue delay, upon presentation of construction plans, which conform to the comprehensive permit and the Massachusetts Uniform Building Code.
4. The comprehensive permit shall be subject to the following further conditions:
(a) The development shall be constructed as shown on the site plans set out in prepared by DeCelle Burke & Associates, revised May 29, 2015, Sheets 1-13 (Exhibit 59), as modified by this decision.
(b)All construction shall comply with all Massachusetts and federal regulations and requirements concerning noise and vibration, and with similar local requirements. Local officials and residents may take whatever actions are normally taken to ensure enforcement of such requirements.
2018 MA Housing App. LEXIS 4
(c)Construction and marketing in all particulars shall be in accordance with all presently applicable state and federal requirements, including without limitation, fair housing requirements.
(d)This comprehensive permit is subject to the cost certification requirements of 760 CMR 56.00 and DHCD guidelines issued pursuant thereto.
(e) [*142] The Board shall not issue any further decision that imposes further conditions.
This decision may be reviewed in accordance with the provisions of G.L. c. 40B, § 22 and G.L. c. 30A by instituting an action in the Superior Court or the Land Court within 30 days of receipt of the decision.
HOUSING APPEALS COMMITTEE
December 20, 2018
MA Housing Appeals Committee
End of Document
|
HEBREWS
INTRODUCTION
LESSON ONE by Milt Langston
A. Relate the setting when the book was written... describe the pomp and ceremony of an evening sacrifice in Jerusalem.
1. Consider the Jewish Xian living in Jerusalem who might chance to witness from afar this ceremony with all its prestige and ceremony.
2. Or Consider the Jew who might be looking into the teachings of Jesus Christ. What did he think? Look at what was in store for him if he dares become a Xian!
a. He will be persecuted...
b. His parents will hold a funeral service for him outside the city gates as they disown him...
3. Hebrews addresses both these problems...
B. Notice the Greek background: They had an influence upon the Jews and the thinking of this time.
1. Plato and other Greek philosophers had long taught that all known to man was a shadow, or a pattern, or copy of a real world. Truth existed and all man knows is a imperfect representation of the truth.
2. Hebrews seems to be saying to this thinking: "All your lives you've been trying to get from the shadows to the truth. That is exactly what Jesus Christ can enable you to do..."
C. Notice also the Hebrew background:
1. The Jews had a great fear and respect for God...
a. They would not even write down His name out of respect for Him.…this is why Matthew calls the kingdom the "kingdom of heaven" and not the "kingdom of God" as Luke and Mark do.
2. They had been Christians long enough to suffer persecution (10:32-34).
2. MAN'S DESTINY IS RECOVERED BY CHRIST'S INCARNATION AND RESURRECTION (2:10-18).
II. JESUS IS A SUPERIOR PRIEST (3:1-10:18).
A. HE IS A SUPERIOR PRIEST WITH BETTER SALVATION (3:1-7:28).
1. PREEMINENT TO THE MOSAIC ORDER (3:1-4:13).
a. HE IS SUPERIOR TO MOSES (3:1-6).
b. WARNING #2: DOUBTING CHRIST'S SUFFICIENCY AND POWER (3:74:13). "The Peril of
1) Unbelief."
2. SUPERIOR TO THE LEVITICAL PRIESTHOOD (4:14-7:28).
a. HE IS THE PERFECT HIGH PRIEST (4:14-5:10).
b. WARNING #3: BECOMING DULL TOWARDS THE WORD OF GOD (5:11-6:20). "The Peril of
1) Disobedience."
c. HE IS A ROYAL PRIEST LIKE MELCHIZEDEK (7:1-28).
B. HE IS A SUPERIOR PRIEST WITH A BETTER SECURITY [COVENENT] (8:113).
1. NEW COVENANT IS BETTER BECAUSE JESUS IS A BETTER PRIEST SERVING IN A BETTER PLACE (8:1-6).
2. NEW COVENANT IS BETTER WITH BETTER PROMISES (8:6-8).
3. NEW COVENANT IS BETTER BECAUSE IS IS DIFFERENT (8:9-12).
4. NEW COVENANT MAKES THE OLD OBSOLETE (8:13).
C. HE IS A SUPERIOR PRIEST WITH A BETTER SANCTUARY (9:1-28).
1. THE INFERIOR OLD COVENANT SANCTUARY (9:1-10).
2. THE SUPERIOR HEAVENLY SANCTUARY (9:11-28).
b. God said to Moses: "Man shall not see me and live..."
1) After Jacob wrestled with God he said, "I have seen God face to face, and Yet my life was spared" (Gen. 32:30).
2) When Samson's father realized that he and his wife had entertained an angel of God they were terrified.
c. Only once a year did a high priest enter into God's presence, and then not without blood for atonement...he was not to linger there "Lest he put Israel to terror..."
2. The Jews viewed their relationship with God through a covenant...so Israel did have access to God, but only if she kept the law!
a. To sin sat up a barrier which stopped the way to God.
b. The sacrifice of atonement was meant to open the way to God through the barrier, but it's yearly observance became only a reminder of the barrier which existed blocking man's way to God.
D. Hebrews shows Jesus as the perfect priest with the perfect sacrifice.
1. To the Greeks He provides a way out of the shadows to get to the truth.
2. To the Jews Jesus is the perfect sacrifice and the perfect priest to give the Jew access to God's presence.
E. To whom was the epistle written?
1. They had been Christians long enough that they ought to be teachers now (5:12).
3. They were established enough to have elders (13:7,17).
F. Who wrote the book?
1. Paul?
2. Luke?
3. Apollos?
4. Barnabas...he is known as the "son of exhortation." This epistle calls itself "a word of exhortation (13:22).
"
G. OUTLINE:
HEBREWS
I JESUS AS A SUPERIOR PERSON (1:-2:18).
A. HE IS SUPERIOR IN HIS MAJESTY AS THE SON OF GOD (1:1-2:4).
1. HE IS GOD'S LAST WORD TO MAN (1:1-3).
2. HE IS SUPERIOR TO ANGELS (1:4-14).
3. FIRST WARNING: DRIFTING FROM GOD'S WORD (2:1-4). “The Peril of Neglect.”
B. HE IS SUPERIOR IN HIS MINISTRY AS THE SON OF MAN (2:5-18).
1. JESUS RECOVERED MAN'S LOST DESTINY (2:5-9).
D. HE IS A SUPERIOR PRIEST WITH A BETTER SACRIFICE (10:1-18).
1. HE IS THE ONLY TRUE SACRIFICE FOR SINS (10:1-10).
2. THE FINALITY OF CHRIST'S SACRIFICE (10:11-18).
III. JESUS PROVIDES A SUPERIOR PATH (10:19-13:25).
A. THE CONFIDENCE OF FAITH IN CHRIST'S SACRIFICE (10:19-39).
1. THE EXHORTATION TO CONFICENCE OF FAITH (10:19-25).
2. WARNING #4: DESPISING THE WORD THAT CREATES FAITH (10:2631). "The Peril of
a. Rejection."
3. THE APPEAL TO CONFIDENCE OF FAITH (10:32-39).
B. AN EXPLANATION OF SAVING FAITH (11:1-3).
1. THREE WORDS WHICH HELP EXPLAIN FAITH (11:1-2).
a. FAITH IS SUBSTANCE TO A BELIEVER.
b. FAITH IS EVIDENCE.
c. FAITH IS A WITNESS FROM GOD.
2. FAITH IS SEEING WHAT CANNOT BE SEEN (11:3).
C. EXAMPLES OF SAVING FAITH (11:4-40).
1. SAVING FAITH IN THE PRE-DELUVIAN AGE (11:4-7).
a. ABLE...WORSHIPPING BY FAITH (11:4).
b. ENOCH...WALKING BY FAITH (11:5-6).
c. NOAH...WORKING BY FAITH (11:7).
2. SAVING FAITH IN THE PATRIARCHAEL AGE (11:8-22).
a. ABRAHAM...WAITING BY FAITH (11:8-10).
b. ABRAHAM...ENABLED BY FAITH (11:11-12).
c. THE PATRIARCHS...SEEING BY FAITH (11:13-16).
d. ABRAHAM...FAITH TESTED (11:17-19).
e. ISAAC...BLESSING BY FAITH (11:20).
f. JACOB...FAITH TO THE FINISH (11:21).
g. JOSEPH...CONFIDENCE OF FAITH (11:22).
3. SAVING FAITH IN THE PATRIOTIC AGE (11:23-31).
a. MOSES...WAGING WAR BY FAITH (11:23-29).
b. JOSHUA & RAHAB...WINNING BY FAITH (11:30-31).
4. SAVING FAITH BY VARIOUS HEROS (11:32-40).
D. THE ENDURANCE OF SAVING FAITH (12:1-13).
1. THE ORIGINATOR OF SAVING FAITH (12:1-4).
2. THE FELLOWSHIP OF GOD IN SAVING FAITH (12:5-13).
E. MANIFESTATIONS OF SAVING FAITH (12:14-13:21).
1. WARNING #5: DEFYING THE WORD NULIFYING SAVING FAITH (12:1429). "The Peril of
a. Refusal."
2. FAITH MANIFESTS ITSELF IN LOVING CHURCHES (13:1).
3. FAITH MANIFESTS ITSELF IN HOSPITALITY (13:2-3).
4. FAITH MANIFESTS ITSELF IN PURE MARRIAGES (13:4).
5. FAITH MANIFESTS ITSELF IN CONTENTED CONFIDENCE IN GOD'S POWER (13:5-8).
6. FAITH MANIFESTS ITSELF IN A SACRIFICIAL SPIRIT (13:9-16).
7. FAITH MANIFESTS ITSELF IN AN OBEDIENT MENTALITY (13:17-19).
8. FAITH MANIFESTS ITSELF IN GLORY PRODUCED FOR GOD (13:20-21).
F. CLOSING EXHORTATIONS (13:22-25).
HEBREWS
GOD HAS SPOKEN THROUGH HIS SON
(1:1-4)
LESSON TWO by Milt Langston
I. JESUS AS A SUPERIOR PERSON (1:1-2:18
).
A. HE IS SUPERIOR IN HIS MAJESTY AS THE SON OF GOD (1:1-2:4).
* What are some restaurants, vacation spots, books, movies, or other areas of interest that you consider the best of their kind?
_________________________________________________________________________
* What situations might tempt a Christian to turn his or her back on Christ?
____________________________
________________________________________________________________________________________
1. H E IS G OD ’ S L AST W ORD TO MAN (1:1-4). T HE S ON IS LIKE THE F ATHER.
A missionary to Africa years ago was setting and writing a letter. A small native boy sat watching him. He didn't know about writing or reading, and asked the missionary what he was doing. The missionary replied, "I am writing..." Realizing that the little boy did not understand he said, "I'm committing my thoughts to paper." The little boy said, "Oh, you mean you are placing your thoughts in prison?" "No," the missionary said, "I'm setting them free."
a. JESUS EXPOUNDS THE MIND OF GOD (READ 1:1-2A).
*How did God speak to people in the past?
(1:1)__________________________________________________
* What was God's means for speaking to mankind in "these last days"? (1:2)____________________________
God had spoken through prophets in the past like Jonah, Jeremiah, David, Daniel and even Moses. But there remained so much to be said. Communicating is such a tricky thing. The Prophets of old did not understand all that was being said (READ 1 PETER 1:10-12). Jesus was able to speak with authority (Matt. 7:28-29). He also spoke with perfect understanding.
* Is Jesus a prophet?
________________________________________________________________________
* What is the danger of viewing Him as only a spokesman?
_________________________________________
________________________________________________________________________________________
* What do you know about the "antichrist"? How would you describe an "antichrist" type person today?____
________________________________________________________________________________________
* How is Jesus superior to the prophets?
_________________________________________________________
b. JESUS EXECUTES THE WILL OF GOD (READ 1:2b-3).
* What unique honors or activities did God the Father delegate to Jesus?
(1:2)__________________________
________________________________________________________________________________________
* What works did Jesus do that only God could do? (1:2-3, 10)_______________________________________
________________________________________________________________________________________
In the person of Jesus, God found a perfect vehicle of expression. He translated Deity into humanity. John says it this way: "The Word became flesh..." Let's not run over these first three verses too quickly. Dayton Keesee calls these three verses the PREPARATORY PROPOSITION! That's his way of saying these three verses are the thesis to the whole book. Notice what has been said about Jesus:
a. He is the Divine Son, "appointee heir of all things."
b. He is the Divine Builder, "through whom He made the universe."
c. He is the Divine Glory, "the radiance of God's glory."
d. He is the Divine Personality, "the exact representation of His being."
e. He is the Divine Power, "sustaining all things by his powerful word."
f. He is the Divine Savior, "provided purification for sins."
g. He is the Divine Authority, "sat..at the right hand of the Majesty."
Isaiah, Moses, John and others have seen glimpses of God heavenly glory. Jesus made it known so that you and I could see and recognize it if we really want to! There are more who will never see it than those who will recognize it. We like to think of the lightening and thunder of His majesty, yet when Jesus revealed it to us, he revealed it as trust and faith. He is the radiance of God's Glory explained to us through faith in God's power. He is God's power demonstrated by faith. He is God's savior demonstrated by submission to God's will. Jesus was heir of all things and maker of all things, yet he did not own a thing upon this earth. He was buried in a borrowed tomb, yet he demonstrated to us the glory and essence of God in a way we can understand it. With enough power in himself to say, "Light be!" which would cause light to become created at His beck and call; Jesus existed upon the earth in human form. Jesus was everything you and I could be if we would not sin. If you and I were as submitted to the will of God as Jesus was, the power of God would rest upon us. Now because Jesus executes the perfect will of God, He has made Himself available to you and I to bring us to the perfect will of the Father.
b. HE EXPRESSES THE HEART OF GOD (READ 1:3).
* What does Jesus show us about the nature of God?
(1:3)__________________________________________
* What astonishing feat is attributed to the Word of Christ?
(1:3)_____________________________________
* What was Jesus' primary ministry on earth?
(1:3)________________________________________________
Jesus is the representation of God's Person, Power and Glory, and He is the destroyer of man's sins! Notice the contrast. Everything we are not but were created to be Christ is, but He is also the redeemer of man. He expresses the heart of God. He is not only the creator, but He is also the Redeemer of what was very good.
God has stated that our own righteousness are, in His sight, as filthy rags, so what must our sins be to Him? But the Lord Jesus has made purification for our sins by dying on a cross.
Some people would like to keep Jesus a little baby in the arms of Mary or in a manger. Others would like to keep Him as a helpless sufferer on a crucifix. God never does. God sits Him down in Glory at the right hand of Majesty. There is a childhood to be lived. There is a cross to bear, but God's hearts desire for you and for me is that we too sit down in Glory in heaven.
Notice God's expression of the Sonship of Christ to us as revealed in Hebrews 1:1-3: He reveals God to us, as the One who has created the entire fabric of the material universe and is its rightful Heir, and is the One who not only died for us but who is now enthroned in heaven.
c. L
OOK AGAIN AT
1:1-4 (R
EAD
1:1-4). E
IGHT CLAIMS CONCERNING THE
S
ON:
He is heir of all things (12b)— “whom he appointed heir of all things.”
He is creator of all things (1:2c)— “thorough whom also he created the world.”
He is the effulgence of God’s glory (1:3a)— “He is the radiance of God’s glory.”
He is the image of God's substance (1:3b)—"and the exact imprint of His nature."
He upholds all things by His powerful word (1:3c)— “he upholds the universe by the word of his power.”
He made purification for sins (1:3d)— “After making purification for sins.”
He sat down on the throne of God (1:3e)— “He sat down at the right hand of the Majesty on high.”
He inherited a name more excellent than the angels (1:4)— “having become as much superior to angels as the name he has inherited is more excellent than theirs.”
HEBREWS
HE IS SUPERIOR TO ANGELS
(1:5-2:4)
LESSON THREE by Milt Langston
I. JESUS AS A SUPERIOR PERSON (1:1-2:18).
A. HE IS SUPERIOR IN HIS MAJESTY AS THE SON OF GOD (1:1-2:4).
1. He is God's Last Word to Man (1:1-4).
2. He is Superior to Angels (1:4-14).
2. JESUS AS THE SON OF GOD IS SUPERIOR TO ANGELS (1:4-14).
a. HIS EXCELLENT NAME (READ 1:4-5).
* Who is Jesus? (1:2-
4)_______________________________________________________________________
* What does Christ's exalted status in heaven say about His similarity to angels? (1:4)____________________
Only Jesus has been given the name, SON OF GOD. We only know the names of two maybe three angels: Michael, Gabriel and "Palmoni" if we go to the Hebrew in Dan. 8:13. Michael means "Who is like God?" Gabriel means "man of God." Michael is mighty as God's commander in chief, but Jesus is almighty as God's only Son. Gabriel was mighty as God's messenger to man concerning the birth of Jesus, but Jesus is the message, the word, the Son of God! Jesus is not as an angel of God. He is God! In the flesh He is God's Son!
* How is Jesus distinguished from God?
(1:5)_____________________________________________________
b. HIS EARTHLY FAME (READ 1:6-7).
* What is the relationship of Jesus and the angels?
(1:6)____________________________________________
* To what extent do the angels honor the Son?
(1:6)_______________________________________________
The Hebrew writer quotes Deut 32:43 and Ps. 104:4. There is some debate as to where the "again" belongs in the Deut. quote. It could refer to when Jesus was born, or it could refer to when He comes again depending on where the "again" goes, but regardless...angels praise God, and Jesus is superior to angels! He is praised my man and by angels!
* What are angels like?
(1:7)_________________________________________________________________
c. HIS ETERNAL CLAIM (READ 1:8-14).
* What name or title applies to Jesus, the Son?
(1:8)______________________________________________
In vs. 8-9 which is a quote of Ps. 45:6-7 God states that Jesus is an eternal King. It is interesting to note that the Hebrew writer shows this messianic prophecy to be fulfilled. So much for Jesus ruling later on for a thousand years. This states that Jesus is king right now! What angel rules as King?
* What is Jesus' nature? (1:10-
12)_____________________________________________________________
In vs. 10-12 which is a quote of Ps. 102:25-27 God declares Jesus to be the eternal creator of the heavens and earth. They will pass away, but the creator will not be moved! What angel has created the earth?
* What will happen to the enemies of Christ? (1:12)_______________________________________________
In vs. 13 which is a quote of Ps. 110:1 God declares that Jesus shall rule! What angel rules?
* What do angels do? (1:14)__________________________________________________________________
Finally that it has been firmly established that Jesus' place is far above angels, their place is summarized: They are ministering servants ministering to those who will be saved. They are servants of salvation like we are. Jesus is the savior! Jesus is therefore superior!
GET IT
* What difference does it make to you that Jesus is "heir of all things" and that the Father made the universe through Him?
* What are some ways we can honor Christ?
* What steps can you take to remind yourself that Jesus is the Son of God and worth following?
3. F IRST W ARNING : D RIFTING AWAY FROM G OD ’ S W ORD ( R EAD 2:1-4 ). M AN ’ S ACCEPTANCE OF J ESUS C HRIST AS THE S ON OF G OD AND THE SUPERIORITY OF H IS WORD !
QUESTIONS:
* In school, in what class was it hardest to pay attention?
___________________________________________
* When your parents leave you alone, who are you "subject to"?
_____________________________________
* What are some warnings you are glad you heeded?
______________________________________________
* What are some warnings you wish you had heeded?
_____________________________________________
One of man's basic problems is his tendency for majoring in minors or passing by the preeminent for the insignificant. This section addresses this problem. The section begins with a "therefore" which means that based upon what has just been established this is the conclusion. It has just been proved that Jesus is God's powerful, glorious, wonderful Son who is superior to angels. Since Jesus is God's unique Son, it is imperative that we accept, at its full face value, the salvation He has procured for us or in this case the gospel concerning it.
Why does a person drift from the word of salvation? Only because he has not accepted that salvation as the truth. This section is a warning against passing up salvation for something inferior. As Jesus said, "What shall a man give in exchange for his own soul?"
a. WE MUST APPROPRIATE THE GOSPEL (READ 2:1-3a).
We must appropriate the Gospel by paying good heed to it. It is possible to "drift away" from the truth. The word for "drift away" means to float passively past, a picture of indolence and criminal neglect. Just look at the enormous privileges which have been set forth already. Jesus is everything we are not as God's Son in the flesh, yet He extends to us salvation from what we are and help to become what He is. To do nothing about these new privileges in Christ, to float indolently past them, is to incur God's wrath. This section is a warning!
If I were to tell you that every door in Jal was booby-trapped with bombs which would kill you, but that I could teach you how to disarm the bombs, how would you listen to my instruction? If you were learning how to be a bomb defuser, how would you listen to instruction? When our lives depend upon it indolence and carelessness would be the height of folly.
*What did the writer of Hebrews want his readers to pay attention to?
(2:1)___________________________
* What danger awaits Christians who carelessly forget the truth? (2:1)________________________________
We are here talking about matters of far greater significance than just life and death. We are talking about eternal life in either heaven or hell. We deserve hell, but listen careful, Jesus can give you eternal life in glory.
The Jews listened carefully to the law of Moses. If you read your Bible carefully you will find that the death penalty could be given for violation of each and every one of the ten commandments. You could even receive the death penalty for numerous other offenses like profaning God's altar or the tabernacle vessels, or for uttering false prophecy, for witchcraft, for bestiality, for incest, for homosexuality, or for just rebelling against constituted authority. The Jews knew well that God's judgment against their past sins had always come... If God punished men who drifted from the law with such severe punishments, what do you suppose He will do to us if we drift away from the gospel?
* What happened to those who violated the "message spoken by angels" (that is, the Mosaic Law)? (2:2)_____
________________________________________________________________________________________
* Who played a major role in delivering the Mosaic Law? (2:2)_______________________________________
* What does it mean to drift away?
_____________________________________________________________
We have become tolerant of unfaithfulness in the church....is that a sign of our overall drifting? If the Jews were held accountable for unfaithfulness to that which was only a shadow of salvation, will God not hold us accountable for allowing drifting today from the salvation to which the law was pointing. How can we expect to escape if we neglect the fully lighted salvation brought to earth by God's Son.
In verse 1 we read, "pay more careful attention….to," and in verse 3 we are told not to "ignore." What is it
that we are to focus our lives on?__________________________________________________________
Is this the focus of your life? If not, what is?
What is the answer to the rhetorical question in verse 3?
________________________________________
We must accept the salvation of Jesus. We must accept it by being loyal to Jesus and His church where it dwells. To neglect salvation is to neglect the church which is the body of Christ.
b. WE MUST APPRECIATE THE GOSPEL (READ 2:3b-4
).
* Who revealed the message of "great salvation" to the world? How? (2:3)_____________________________
Salvation was revealed by Jesus. He brought it to fruition from what the Old Testament taught. It was Jesus who gave us the heart of the law. He fulfilled the requirements and showed us how to become righteous through faith in His work.
* Who confirmed the salvation that Jesus announced? How? (2:3-
4)__________________________________
This salvation was confirmed by the witness of the first disciples of Jesus. READ 1 JOHN 1:1-2. For three and one-half years these disciples ate and drank with Jesus. They walked and talked with Jesus.
*What did God do to validate the gospel message?
(2:4)___________________________________________
This salvation was also confirmed by God Himself "by signs, wonders and various miracles, and gifts of the Holy Spirit distributed according to his will."
So the Hebrew writer brings the Hebrews to a crossroads of faith...Because of who Jesus is and what He has done, and because of the truths embodied in Himself, there is no escape for those who neglect salvation through Him.
QUESTIONS:
* What leads people to start drifting?
a. Not looking at God's word.
b. Self-sufficiency
c. Trusting in others instead of God.
d. Putting other things first.
e. Evil companionship.
f. Faction between brothers.
* What is the key to solving all these areas of difficulty? "Pay more careful attention..."
GET IT
* Why do you think the Hebrew Christians were in greater danger if they ignored "such a great salvation" than those who violated Old Testament law?
* How do we as modern Christians fail to pay careful attention to what God tells us?
* How can we help ourselves pay closer attention to God's Word?
* What are some ways you can nurture your attention span toward God this week?
HEBREWS
HE IS SUPERIOR IN HIS MINISTRY AS THE SON OF MAN
(2:5-18)
LESSON FOUR by Milt Langston
I. JESUS AS A SUPERIOR PERSON (1:1-2:18).
A. HE IS SUPERIOR IN HIS MAJESTY AS THE SON OF GOD (1:1-2:4).
B. HE IS SUPERIOR IN HIS MINISTRY AS THE SON OF MAN (2:5-18).
"To read it is to breathe the atmosphere of heaven itself. To study it is to partake of strong spiritual meat. To abide in its teachings is to be led from immaturity to maturity in the knowledge of Christian truth and of Christ Himself. It is to `go on unto perfection.'"[1]
The Epistle to the Hebrews reigns unchallenged as the best New Testament commentary on the Old Testament and its relationship to Jesus Christ. It makes clear that the sacrifices and other priestly activities were but shadows pointing forward to Christ, the once-for-all sacrifice for sin, the true Priest, the one mediator between God and man. Indeed, Hebrews may be considered a grand portrait of Christ with the Old Testament as its background.
* What is the most helpful act a brother or sister has ever done for you?
The term "son of man" as used by the Jews has come to mean Jesus Christ to us today. But to the Jews the term "the son of man" meant that the person so addressed was well and truly a man. The book of Ezekiel uses the term to refer to Ezekiel himself, but also to the Christ. A son of man was the offspring of man. When it refers to Jesus it emphasizes His humanity. As a man the Lord Jesus, in His sovereignty, His sufferings, and His sympathy, meets all the needs of mankind. In chapter one Jesus has been seen as God completely and totally. Here He is described as a man and related to all mankind. Much will be made of this later in the book, but for now we are instructed that for all Jesus' superiority, he is still very near to us. He is approachable, and He is the kind of savior we need.
Angels were most important in the Jewish religion, primarily because thousands of angels assisted in the giving of the Law at Mount Sinai. This fact is stated in Deuteronomy 33:2 (where "saints" in KJV means "holy ones" or "angels"); Psalm 68:17; Acts 7:53; and Galatians 3:19. Since the theme of Hebrews is the superiority of Christ and His salvation to the Law of Moses, the writer would have to deal with the important subject of angels.
This long section on angels is divided into three sections. First, there is an affirmation (Heb. 1:4-14) of the superiority of Christ to the angels. The proof presented consists of seven quotations from the Old Testament. Second, there is en exhortation (Heb. 2:1-4) that the readers (and this includes us) pay earnest heed to the Word God has given through His Son. Finally, there is an explanation (Heb. 2:5-18) as to how Christ, with a human body, could still be superior to angels who are spirits.
….Warren
Wiersbe
1. J ESUS RECOVERED MANKIND ’ S LOST DESTINY (2:5-9).
A. SOVEREIGNTY WAS BESTOWED UPON MANKIND (READ 2:5-8B). MAN—MADE A LITTLE LOWER THAN THE ANGELS!
In these verses God shows us the ideal of what man was intended to be. Man was made in God's image. Man was created a little less than the angels. There was a sovereignty given man. Angels must one day yield before man because it was not to angels that God subjected the world to come, but to man.
So man's destiny eclipses that of angels. Angels are ministering servants sent to serve those who will inherit salvation (Heb. 1:14). Man will inherit. Paul states that man (in this case Christians) will judge both the world and angels (READ 1 COR. 6:2-3). The existing world is under the control of angels. Revelation shows them working to dispatch the enemies of the early church doing "things which will shortly come to pass." Throughout the Bible they have been seen time to time working out the rule of God. Angels destroyed Sodom & Gomorrah. An angel destroyed the Assyrians who surrounded Jerusalem in Hezekiah's day. The kingdom of heaven which will one day be handed by Jesus up to God will be served by men. Have you ever thought of
that?
Man's dignity is no less than his destiny. The "man" and the "son of man" in verse 6 are one and the same. The quote is from Psalm 8:4-6. Man was created for glory. Sin has interrupted God's original intentions for the human race, but it has by no means thwarted them as we will learn.
God dignified man by placing him between the world of angels and the world of the beasts. He is higher than the beasts but a little lower than the angels. God has given man a dominion over everything. Sin has cursed this dominion, but there is a hint of restored dominion through the man Jesus to a position of glory in a higher realm (READ AGAIN v.8a & b).
* What is our God-given place on earth? (2:6-
8)___________________________________________________
* What is the relationship between Jesus Christ and the rest of the universe? (2:8)_______________________
b. MANKIND LOST HIS SOVEREIGNTY BECAUSE OF REBELLION (READ V.8C
).
Having reviewed the sovereignty bestowed on man by God, the writer of Hebrews now brings us back to reality. Having shown us the ideal he now gives us the actual state of man. Because of sin man has entered into defeat instead of mastery. Man has made a mess of the world God gave him. We infest ourselves with diseases like A.I.D.S. We make deserts where forests once grew. We spew crude oil all over the creation over which God gave us dominion, but our greatest failure is our failure to control self. We talk about peace, but wars continue. Reality must soak in. Every generation starts out with such great expectations and dies defeated and worn with the majority rejecting the perfection which can only be found in Jesus Christ! Brethren, let's be the exception, and let's do P.R. for Jesus who can restore what man has lost.
c. Mankind’s sovereignty bestowed by God is revived in Christ as the Son of Man ( READ 2:9-10 ). Jesus— made a little lower than the angels.
* To prove that Jesus is too great and too valuable to neglect, the writer tells us more about Him (vs.5-9). What major
facts does he cite here?
_____________________________________________________________________
* What is Christ's present heavenly status? (2:9)__________________________________________________
* What actions by Christ led to His current exalted position at the right hand of God? (2:9)________________
* What was unique about the death that Christ suffered? (2:9)_______________________________________
Reality tells us that all is lost and being even further destroyed, but "we see Jesus!" God has made glory easy to be seen again by placing it in Jesus Christ! He has been made a little lower than the angels in a position which to Him is not natural. He stepped down from equality with God (Phil. 2:5ff). What a position Jesus took! He stepped off the throne of the universe to be placed in the womb of a young virgin. If the universe is filled with awe at the position He took, what can be said of the purpose for which He took the position? He came to die. We all shrink from death's dark prospect. So did Jesus in Gethsemane, but He suffered it for the opposite reason. He came to reveal the glory of God intended for man to all who will see Him. He reveals:
THE DIVINE PLANNER: "by the grace of God"
THE DIVINE PLAN: "because He suffered death"
THE DIVINE PRIVILEGE: "now crowned with glory and honor"
THE DIVINE PRICE: "He might taste death for everyone"
Now passages like Romans 5:12-21 come to life. Death came to man through the man Adam. Life comes through the man Jesus. The dominion Adam so recklessly threw away has been picked up by the Man, Jesus Christ.
We can better understand other passages like Ephesians 1:22-23. Jesus, who had all this honor inherit as God, has now purchased the honor afresh as a Man for mankind to all who will believe in Him or His body, the church.
a. Jesus has become for man what man was destined to be!
b. God has predestined that every Christian become like Jesus (Rom. 8:28-31).
c. From this can you see what the work of a Christian is to be?
The glory Jesus has restored to man is a glory which cannot be hemmed into a single garden, or a single world. It is not to be confined to a 1000 year rule upon the earth. It is an eternal glory which will extend into heaven itself!
Brethren, the world is very blind to all this. The glory of God which Christ revealed is recognized only by faith—that comes to us from studying books like Hebrews. I am so blessed to be here tonight!
QUESTIONS:
a. At what point might you be tempted to give up on faith in Jesus Christ?
1) After a big disappointment?
2) When you are away from fellowship?
3) When things are not going your way?
4) When people laugh at Christianity?
5) Any others?
b. How do the accomplishments and example of Jesus encourage you in times of great trial?
2. Jesus has established a brotherhood of holiness based upon His (2:11-18). Mankind's destiny was recovered through Jesus' incarnation and His atonement!
b. JESUS IDENTIFIED WITH MEN BY SUFFERING AS A MAN (READ 2:10-13). HE IS OUR PIONEER!
Jesus is the "author" or "captain" or "pioneer" of our salvation through suffering. The word "ARCHEGOS" is the word in Greek for "author." It literally means the chief or leader. It carries with it the idea of paving the way. Jesus paved the way of our salvation becoming the author or captain of salvation. ILLUSTRATION: A new wider bridge was built on a canal where I used to live as a child. We used to swim under the old bridge which was about 15 feet across. The new bridge was 35 or 40 feet across. Tony Taylor pioneered the way under this new bridge for the rest of we children by swimming under it first. In the same way Jesus pioneered our salvation by suffering, dying, being buried, and finally rising to glory in a way which we can follow. It is a way of faith, and we can believe because Jesus provided the righteousness!
Look how this can become encouragement to the lost sinner. He can believe, and has good reason to believe. The perfect Son of God has become our perfect Savior (v. 10), opening the way to God. In order to accomplish that, he must endure suffering and death. The path WE tread HE first had to tread as our leader to God. Only such a perfect Leader can be our adequate representative in God's presence.
Man suffers because of sin. Suffering is a result of sin. Jesus identified himself with man through suffering. Jesus also suffered because of sins. He suffered to purchase our salvation. By suffering he became like us sharing in our sufferings. Yet His suffering purchased salvation for us, and we can also share in His sufferings.
This shows He is not ashamed to be related to man. We can be related to Jesus. We have been allowed the privilege to be freed from our own sins, but there is a depth here which suggests that we also can share with Christ in suffering to free others from their own sins.
Through His suffering Jesus identified with man, and through Christian suffering He continues His work through us...the church.
* What is God's ultimate goal for us?
(2:10)______________________________________________________
* What does Christ do to qualify a person for membership in the family of God?
(2:11)_________________
* What is required from us to become a "brother" to Jesus? (2:13)____________________________________
b. JESUS OFFERED ATONEMENT AS A MAN TO SYMPATHIZE WITH MANKIND (2:14-18).
1) JESUS BECAME HUMAN TO DELIVER US FROM DEATH (READ 2:14-16).
Jesus identified with man by becoming a man and enduring suffering as a man. As such He sympathized with man's weaknesses. It is very hard to tell how sister Charlotte Cox feels if we do not have the same ailment she has. It is very hard to tell how it feels to be like brother David van Winkle unless we have walked in his shoes for a while. Jesus walked in our shoes and shared our problems by becoming like us.
Because He sympathizes Jesus can really help. He has met our sorrows; He has faced our temptations. As a result He knows exactly what help we need; and He can give it!
Jesus is the perfect example of what Paul was talking about (Read 1 COR. 9:22).
* Why did Jesus become flesh like us?
___________________________________________________________
* What effect did His death in the flesh have on Satan and his power? (2:14)____________________________
* What effect did the death of Christ have on those who were enslaved to the fear of death? (2:15)_________
2) JESUS IS A HEAVENLY HELPER WITH AN EARTHLY INSIGHT SUPPLYING A DIVINE SOLUTION (READ 2:17-18).
Our Lord Jesus Christ has been made like us so that He can be to us all that we need. We need someone to intercede for us compassionately. He is merciful. Oh, that you and I can learn to become like Him for the world needs Jesus. We need someone to intercede for us continuously. Jesus is faithful. Jesus has been equipped to take all our needs into God's presence for us.
Moreover, Jesus understands our needs through experience "because He Himself suffered when He was tempted, He is able to help those who are being tempted." A man who has been poor can understand the plight of the poor better than a person who has always been rich. Jesus has experienced temptation. He knows what it is like. Therefore, He is able to "succor" those who are being tempted. Jesus knows what we need and He is prepared to give us exactly what we need. Praise God for Jesus!
* Why did we need someone with flesh and blood like us….not an angel….to die in our place? Verse 17 tells us why God
required it:______________________________________________________________________________
* What makes Christ especially qualified to help Christians when they are being tempted? (2:18)___________
________________________________________________________________________________________
"Be sure your seatbelts are securely fastened," the airline captain warns you because of approaching turbulence. How can we help one another to be "securely fastened" to Jesus?
HEBREWS
THE PRIESTHOOD OF JESUS IS PREEMINENT TO THE MOSAIC ORDER
(3:1-19)
LESSON FIVE by Milt Langston
I. JESUS AS A SUPERIOR PERSON (1:1-2:18).
II. JESUS AS A SUPERIOR PRIEST (3:1-10:18).
A. HE IS A SUPERIOR PRIEST WITH BETTER SALVATION (3:1-7:28).
1. HIS PRIESTHOOD IS PREEMINENT TO THE MOSAIC ORDER (3:1-4:13).
ü Who are (or were) some of the heroes of your generation?
_______________________________________
For us today it has been almost 2,000 years since God tore apart the Temple veil signifying the end of an era which had lasted 1,500 years. Because of the lapse of time it is very difficult for us to imagine the difficulty of a Hebrew adjusting to the thought that God had brought an end to all his religious observances, associations, and concepts. It was hard for the Jew to realize that the law had been fulfilled and was no longer needed.
Next to Abraham, Moses was undoubtedly the man most greatly revered by the Jewish people. To go back to the Law meant to go back to Moses, and the recipients of this Letter to the Hebrews were sorely tempted to do just that. It was important that the writer convince his readers that Jesus Christ is greater than Moses, for the entire system of Jewish religion came through Moses. In this section, we learn that Jesus Christ is superior to Moses in at least three respects.
a. CHRIST'S SUPERIORITY TO MOSES (3:1-6). (Moses and Jesus)
Notice how chapter three begins. It begins with a "therefore" or a "wherefore" which means in view of what has just been said. The Hebrew writer calls his readers "holy" because he has said that they are sanctified (READ 2:11a). He calls them "brethren" because he has already stated it (READ 2:11b-13). He also describes those to whom he is writing as those "who share in the heavenly calling" which is described in chapter 2 as the loss of the fear of death (READ 2:14-15). When you come to think about it these are the marks of every Xian. We have been made holy, and we now possess a holy character in a holy kingdom. We are brethren with Jesus Christ Himself and with one another. This fellowship is not an optional thing...it is not a take or leave it type of thing...it is everything. If I am a child of God, as long as I am able to breath I will not be separated from the children of God. It is a holy thing! And we have a heavenly calling. Our life is invested in higher things than my feelings, my pride...all those base things associated with my earthly tabernacle. With a heavenly calling we are becoming spiritual every day. We are becoming less and less carnal even though the flesh is passing away because we have a heavenly calling.
So the chapter begins bringing to our memory our sanctification, our holy fellowship with Christ and our eternal destiny in Him, but it also begins with an exhortation to "CONSIDER" Him. The N.I.V. reads, "fix your thoughts on Jesus"because "consider" comes from a Greek word "KATANOEO" which means "...to observe, to understand... to consider attentively, to fix one's eyes or mind upon" (Thayer, p. 334). The Hebrew writer is saying, "Now listen to this!" or "Look carefully here!" at Jesus!
1) WE ARE TO CONTEMPLATE JESUS(READ 3:1-2).
We have been asked to consider the believer's titles, then, the Hebrew writer turns at once to the titles of Jesus. He is the "Apostle and High Priest of our confession." An apostle is one "sent forth." To the Jews Moses was God's "apostle" because God sent Him forth from the desert to represent God to the people. Aaron was made the first High Priest. The high priest represented the people to God. In Jesus we see a combination of both the functions of an apostle of God and a High Priest of man.
Christ's titles are unique, but so is His trust. He was faithful to the one who appointed Him." In this Jesus is like Moses which is the fulfillment of prophecy (READ ACTS 3:21-23 which is a quote of Deut. 18:18-19). Moses was reluctant at first to execute the task set upon him, but finally he agreed. With God's help he fulfilled his commission magnificently because he was willing. He became Israel's redeemer, revealer of divine truth, and their ruler. He was used by God to overthrow Egypt and to lay it in the dust of defeat. He brought Israel out of Egypt through the blood of the Passover lamb, through the water of the Red Sea and finally brought her through the wilderness of unbelief to the promised land. The followers of Moses persecuted and killed these new Jewish Xians, but Moses was faithful, and so was Jesus...in a greater cause and at immeasurable greater cost. The Jews are being told here to get their eyes off of Moses and get them on Jesus instead. Moses' journey was just a shadow of Christ's greater journey.
ü Who is Jesus? (3:1-
2)_______________________________________________________________________
ü What does the word "Apostle" mean?
________________________________________________________
ü Who sent Jesus to the world?
_______________________________________________________________
2) NOTICE THE CONTRAST BETWEEN JESUS AND MOSES (READ 3:3-6).
Jesus has been seen as superior to the prophets, superior to the angels, now superior to Moses. To us this sort of loses its meaning because we would put Moses with the prophets. The Jews did not. They thought that Moses was superior to the angels. In Num. 12:6ff it states that Moses was unlike any other prophet. He is said to be "faithful in all my house." The Jews took this to mean that Moses' was superior even to the ministering angels.
ü With one word describe in what way Moses and Jesus are similar? (3:2, 5-
6)_________________________
Moses was indeed faithful in God's house which refers to Israel's place in the kingdom. To the Jews it was the kingdom. Moses deserves glory for his service, and his name is mentioned some 700 times in the Bible. He was one of the cornerstones in God's plan to bring salvation to every man. He "testified of what would be said in the future." The word used for servant in verse 5 is not the usual word for "servant." It is not deacon or slave, but a word meaning "a ministering servant of great esteem."
üWhy is Jesus worthy of more honor than Moses? (3:3-
6)__________________________________________
üWhat is this "house" made of, or of what does it consist?
_________________________________________
But Jesus is not only greater than the prophets, the angels, He is also greater than Moses. Moses is seen as "in" God's house, Jesus is seen as "over" it! He is greater than Moses in two ways here: 1) He is greater as the builder of the house, and 2) He is greater as the Son over the house!
JESUS IS GREATER THAN THE GREATEST! When Jesus asked His disciples who men said that He was, they answered that some thought He was Jeremiah, Elijah or one of the prophets. But that is not enough. Jesus is not just a great man, nor is He like great men. That is why He expected a better answer from His own disciples, and it is why He was pleased with Peter's confession: "You are the Christ, the Son of the Living God." Jesus is greater than the greatest!
Moses was great, and his ministry was a great ministry. But Jesus is greater and His ministry is far greater. There is a wilderness of unbelief to cross, and there is a promised land to enter which is far greater than that which Moses led the Children of Israel into.
There is a great statement of glory and fact which ends this section: "And we are His house, if we hold on to our courage and the hope of which we boast!" With these thoughts we turn to the next section...
QUESTIONS:
a. If you were lost in the desert what would you do?
b. If you were lost on a trip in your car what would you do?
c. If you are usually early or late getting somewhere, why is it?
d. How does this relate to Jesus?
e. What is the significance of Jesus as "apostle and high priest?"
f. How are Moses and Jesus similar? Can our study of the events of Moses'
life help us understand better how to follow Jesus?
g. How are Moses and Jesus different?
b. WARNING AGAINST DOUBTING CHRIST'S SUFFICIENCY AND POWER (3:7-4:13).
This is the second warning found in the book of Hebrews. The first warning had to do with disregarding the salvation of God by drifting from the word of truth. Now this is a warning against doubting the power and sufficiency of Christ. It is a warning not to do as the Children of Israel did who rebelled against God in the wilderness through unbelief.
ü What does it mean to rebel?
________________________________________________________________
ü What are the pros and cons of procrastination? PRO:___________________
CON:____________________
1) DON'T HARDEN YOUR HEARTS—THIS IS A WARNING AGAINST UNBELIEF (PROCRASTINATION)—HEBREWS USES THE EXAMPLE OF THE DISASTER OF REBELLION OF ISRAEL IN THE WILDERNESS IN O.T. TIMES AS AN EXAMPLE (3:7-19).
There is the danger here of these Hebrew Christians becoming only second-class Christians which the writer stressed in chapter 2:1-4. Now he develops this same theme by appealing to scripture. Notice that this warning comes directly from the Holy Spirit. It is God's warning!
A) THE ISRAELITES' EXAMPLE OF UNFAITHFULNESS (READ 3:7-13) (NOW'S THE TIME TO LISTEN!)
The writer draws an exact parallel between an historical incident and their present day experience. I believe we can draw the same parallel between their situation to our situation today.
We are reminded of the rebellion of the Children of Israel which provoked God in the wilderness. The Children had seen God pour out His plagues upon the land of Egypt, separating, as the judgments proceeded, between the land of Goshen, where the Hebrews lived, and the rest of Egypt. How could they doubt that God was with them and that His favor rested upon them? They witnessed the crowning judgment: the slaying of the firstborn in every Egyptian home. They saw God deliver them from the armies of Egypt and lead them to safety through the Red Sea. Then they saw Him destroy that army in the sea. Yet they complained and cried and rebelled against God. It's amazing isn't it? Because they provoked God, He punished them. Notice from our text:
üHow is Israel's period of wandering in the wilderness described in this passage?
(3:8)__________________
ü Why was God angry with the generation of Israelites who came out of Egyptian exile? (3:9) "They ___ ___ ___ ___ ___ ___ and ___ ___ ___ ___ ___ me and for forty years saw what I did."
ü For forty years they saw what God did, and before that they saw how God took them out of Egypt, but did they
trust God? (Yes or No)______________________________________
b) THE EXHORTATION TO FAITHFULNESS (READ 3:14-19) (GOD TELLS US TO HOLD ON TIGHT).
The offer God made the Children of Israel was the Promised Land. The promise God makes man today is a new Promised Land of eternal life in heaven.
i. TO OBTAIN THE BLESSINGS OF GOD TWO THINGS ARE NECESSARY.
i) TRUST IS NECESSARY.
We must believe that what God says is true. We must be willing to stake our lives on His promises. The Jews of old were not willing to take this chance. They wanted God's blessings, but they were not willing to trust God to keep them, so they rebelled against His instructions.
ii) OBEDIENCE IS NECESSARY.
The Children of Israel would not do what God instructed. They let fear (which is a lack of trust) keep them from obedience. It is kind of like going to a doctor. The doctor can cure our ailments if and only if we trust him enough to follow his instructions.
The message to us is clear. God is the expert on life. He created us. If we are to really live, we must have enough faith to obey God and follow his instructions. Obedience will bring joy and excellence into our lives.
ii. THERE IS A LIMIT TO THE OFFER OF GOD HINTED HERE.
The exhortation repeated in verse 13— "Today if you hear His voice, do not harden your hearts..." "...encourage one another daily as long as it is called today..." The limit of God's offer to us is the duration of our lives. We never know when the limit of our lives will be reached. Someone has said, "We should live each day as if it were a lifetime." Hell is populated with many who planned to heed God's offer of life, but not today. Their "tomorrow" did not come in time (READ 2 COR. 6:1-2).
iii. LOOK AT THESE "DO'S AND 'DON'TS":
Do take heed.
Don't have a sinful, unbelieving heart that turns away from God.
Do encourage one another daily.
Don't be hardened by sin's deceitfulness.
Do hold firmly to the confidence you had at first and thus continue to share in Christ.
Don't harden your hearts and rebed against God as did the Israelites.
Don’t incur the displeasure and anger of God as did the Israelites who were not permitted to enter His rest because of unbelief.
QUESTIONS:
a) What are some practical ways we can put verse 13 into practice?
b) What might help you keep from becoming hardened?
c) Can you share a time in your own life when you became rebellious spiritually?
d) What or who brought you back?
e) Describe your own heart now: Is it soft? Hard? Cold? Warm? Why?
f) What according to verses 14-18 will be the outcome of our faithfulness?
g) Is the Christian family important in helping us remain true to God? Does that shed new light on 1 John 4:20-21?
HEBREWS
THE PRIESTHOOD OF JESUS IS SUPERIOR WITH BETTER SALVATION JESUS IS THE HEAVENLY HIGH PRIEST
(4:1-16)
LESSON SIX by Milt Langston
I. JESUS AS A SUPERIOR PERSON (1:1-2:18).
II. JESUS AS A SUPERIOR PRIEST (3:1-10:18).
A. HE IS A SUPERIOR PRIEST WITH BETTER SALVATION (3:1-7:28).
1. HIS PRIESTHOOD IS PREEMINENT TO MOSAIC ORDER (3:1-4:13).
a. JESUS IS SUPERIOR TO MOSES (3:1-6).
b. WARNING #2: DOUBTING CHRIST’S SUFFICIENCY AND POWER (3:7-4:16) “THE PERIL OF UNBLIEF.”
1) DON'T FALL SHORT OF ENTERING YOUR REST...THE IMPORTANCE OF FAITH WHICH PRODUCES EFFORT TO AVOID THE DANGER OF REBELLION BY UNBELIEF TODAY (4:1-11).
READ 4:1-11. Brother Dayton Keesee calls this section: "THE SUPERIORITY OF CHRIST'S REST!" The jest is that the Children failed to enter into God's rest because of rebellion, nor did Moses, Caleb or Joshua enter into it. David did not enter into it, but through Jesus Christ we can enter into that rest if we do not miss it by not making the proper effort (READ v.11 AGAIN).
ü How do we know that not everyone will experience God's rest (that is, His salvation)? (4:1-
2)___________
________________________________________________________________________________________
ü Why didn't the Israelites of the Exodus enter God's rest? (4:2)_____________________________________
üWhat should we learn from the Israelites' negative example?
(4:11)________________________________
ü If the Children of Israel did not enter into God's rest because of unbelief, and because their negative example to us is disobedience; we can conclude that faith in God's word will result in ________________!
This section of scripture is very difficult to understand. One reason is that the writer refers to God's "rest" as meaning at least three different things: (1) It can refer to the "peace of God" which is a cessation of hostilities between man and God because of the removal of sins by Christ's sacrifice. (2) It surely refers to the "Promised Land" as it does in chapter 3:11-19. (3) It also refers to God's rest from creation. A rest He wanted to share with the Children of Israel but they failed to enter into it because of their rebellion, and a rest He is willing to share with us through Christ.
The Jewish rabbis had long held that God's Sabbath-rest was a never ending rest. They observed in Genesis chapters 1 & 2 that at the end of each day of the creation, the Bible records a beginning and an end to each of the six days. But for the Sabbath day there is no such qualification. Therefore, the Jewish rabbis concluded that God's Sabbath rest was a continual and eternal rest. The Hebrew writer elaborates upon this concept.
QUESTIONS:
1) After you have been to church on Sunday, what is your favorite way to spend a restful afternoon?
2) From what you have read and learned so far, how would you describe to an unbeliever "God's rest"?
3) It is obvious that hearing the word is not enough, but what is the proper response of faith to the warning found in verses 1 & 11?
2) THE IMPORTANCE AND TERROR OF THE WORD OF GOD (4:12-13).
Remember that this is the concluding exhortation to heed this second warning. A warning not to harden our hearts to the word of God, and a warning not to fall short of God's rest (READ 4:12-13).
We must remember too that God created the world by the power of His word. Jesus is described by the apostle John as the incarnation of the word! There are several words used to describe the word. It is living (Greek, "zao" = to live, be among the living...to live and be strong" Thayer, p.269f). It is active (Greek, "energes" = "active...efficient, energetic,...adapted to accomplish a thing."). The word is penetrating described as a sharpened sword. It penetrates to the division of soul and spirit.
In Greek the "psuche", the "soul", is the life principle. All living things possess "psuche", it is physical life. In Greek the "pneuma", the "spirit", is that which is characteristic of man. It is by spirit that man thinks and reasons and looks beyond the earth to God. It is as if the writer to the Hebrews were saying that the word of God tests a man's earthly life and his spiritual existence. He says that the word of God scrutinizes a man's "desires" (RSV) and "intentions." "Desire" ("enthumesis") is the "emotional" part of man, "intention" ("ennoia") is the "intellectual" part of man. It is as if he said: "Your emotional and intellectual life must alike be submitted to the scrutiny of God." (Wm. Barclay, The Letter to the Hebrews, pages 39-40).
QUESTIONS:
a) What efforts (from verse 11) can help us enter into God's rest? (see Matt. 11:28-30).
b) What evidence can you give that the word of God is living and active in
the church in San Angelo? In your own life?
Everything that we are and have done is exposed before God's eyes. We are indeed naked before Him, and we will be judged by His word (John 12:48-50). There is one interesting word used in verse 13. It is the Greek word "tetrachelismenos" which is translated in the N.I.V. as, "...laid bare before the eyes of Him to whom we must give account." In the K.J.V. it is rendered "...opened unto the eyes of him with whom we have to do." This Greek word is difficult to translate. Here are three ways the word was used:
a) It was a wrestler's word and was used for describing a wrestler seizing an opponent by the throat in such a way and to render him immovable. The point is that God and His word are one issue which no man can finally evade. We try. We deceive ourselves into thinking that we have covered our shame, but for all who are trying to hide from God in the end they will be forced to stand before God face to face.
b) It was also a word used for skinning animals leaving the animal hanging exposed without its hide for a covering. Men may judge us by our outward appearance, but God knows what we are like inside.
c) One of the most intriguing uses for this word was how it was used to describe how guilty men were brought publicly to judgment. Have you seen men arrested on T.V.? They try to hide their faces from the cameras by covering their heads with a coat or something. The Greek language used this word to describe a process whereby when a criminal was brought to justice a dagger was placed at his neck denying him from bowing his head in shame and exposing his shame to the gaze of all onlookers. There comes a day when every man and woman on earth will be forced to meet the gaze of our Creator, and we will not be allowed to avert our face in shame and dishonor. Kermit Eby writes in The God in You: "At some time or other, a man must stop running from himself and his God --possibly because there is just no other place to run to." That being true let's not harden our hearts or fall short of God rest by not expending the effort which faith demands!
3) LOOK AT THREE "THEREFORE'S" LISTED IN CHAPTER FOUR…
a) Since God's promise of entering His rest still stands, "Let us fear lest any of you should seem to have failed to reach it!" In other words, "Be careful not to miss it!" (4:1-5).
b) Because "formerly" those preached to did not enter into God's rest because of disobedience; don't harden your hearts but obey God and enter God's rest (4:6-13). "Therefore strive to enter that rest" (v.11).
c) Since we have a great high priest who has gone into heave, Jesus the Son of God, let us hold on to our faith which we profess (4:14-16).
2. JESUS' PRIESTHOOD IS SUPERIOR TO THE LEVITICAL PRIESTHOOD (4:14-7:28)
In the New Testament the priesthood is centered in Jesus Christ. The Roman Catholic Church still does not understand His priesthood having "priests" who serve as mediators in each congregation. And to the Jews this was a drastic departure from what they had been accustomed. For that reason the writer is careful and detailed in his handling of this subject. Jesus is depicted as the perfect high priest in the book. His task is to bring the voice of God to man and to usher men into the presence of God. As this high priest he at the same time must perfectly know man and perfectly know God. Such is the claim this epistle makes for Jesus.
During His ministry upon the earth Jesus was more a prophet than priest. But toward the end of His ministry as He "set His face toward Jerusalem", He began His task as high priest. He offered Himself as sacrifice for our sins, and He entered heaven. He represented God to man upon the earth, and He now represents man to God in heaven where He serves as King of God's people.
When Israel fought against the Amalekites in the wilderness, Moses was on the mount while Joshua and the army were in the valley. As long as he made intercession for the people by lifting his hands to God, Joshua and his men prevailed. But because Moses was a mere man, his arms became heavy and he became tired. Aaron and Hur had to come to the aid of Moses. Indeed Moses was not up to the work of intercession...it wore on him. But we now have a priest in heaven whose arms never grow tired. He cannot tire or fail in upholding us in all our weakness before the throne of God. Jesus is indeed a real high priest!
A. JESUS IS THE PERFECT HIGH PRIEST (4:14-5:10).
Jesus is declared to be perfect in at least three ways in this text. He is perfect in His identity with man, His selection by God and His submission (obedience through suffering). Jesus never served as an Aaronic priest. He did not even attempt to do so. He came to fulfill all the shadows of the old with a new reality.
His greatness is declared in verse 14, "Therefore, since we have a great high priest who has gone into heaven, Jesus the Son of God, let us hold firmly to the faith we profess." His greatness as man comes from his name "Jesus" or "Joshua" which means "savior." And His greatness as God comes from His name "The Son of God!" He is not just a high priest, but a "great" high priest. He did not "pass through" an earthly tabernacle, but He has "passed through" heaven itself of which the tabernacle is only a representation.
Notice that His greatness demands a confession from man. To the Jews this confession had a particular point...to confess Jesus as their great High Priest called for a sharp break with Judaism. Just as the same confession from us demands that we make a distinct break with the world from which we are attempting to escape through His leadership.
1) JESUS IS PERFECT IN HIS SYMPATHY WITH MANKIND (READ 4:14-16).
Jesus can identify with man, and man can identify with Jesus because He has felt the same depression we have felt. He has known the same temptations, and greater temptations than we have endured. Satan tempts us till we sin, then he lets up. Jesus was tempted in all points as we are yet He did not sin. Satan hit Jesus with a level of temptation which you and I have not yet reached because we cannot endure it. Jesus endured it all!
Opal Wilson came to me with the news that Lesotho had had a change of governments because she knew that I had been there. That night in prayer there were tears of concern and feeling for the Basotho...I cried. Why didn't Opal cry for Lesotho? Because she had not been there. Through Jesus, God can now sympathize with man because Jesus has been there!
Knowing this the Hebrew writer exhorts us to approach the throne of God's grace with confidence...not in self but in Christ's power as our high priest! When we come to God we will receive the mercy God has to offer and the grace He can give to help us in our time of need. How many times do we allow problems to keep us from the help we need?!? God give us more faith!
HEBREWS
JESUS IS THE PERFECT HIGH PRIEST
(5:1-10)
LESSON SEVEN by Milt Langston
I. JESUS AS A SUPERIOR PERSON (1:1-2:18).
II. JESUS AS A SUPERIOR PRIEST (3:1-10:18).
A. HE IS A SUPERIOR PRIEST WITH BETTER SALVATION (3:1-7:28).
1. HIS PRIESTHOOD IS PREEMINENT TO MOSAIC ORDER (3:14:13).
2. HIS PRIESTHOOD IS SUPERIOR TO THE LIVITICAL ORDER (4:14- 7:28).
a. JESUS IS THE PERFECT HIGH PRIEST (4:14-5:10).
1) JESUS IS PERFECT IN HIS SYMPATHY WITH MAN (4:14-16).
Read Hebrews 4:14-6. This will give us a bit of a review before joining back into our study of Jesus' perfection as our High Priest. Notice in verse 14 that Jesus "passed through" the heavens. Jews believed that there were varying levels of heaven. The apostle Paul stated that he has ascended into the third heaven. Look at Solomon's statement…Read 1 Kings 8:27. If there are layers of heaven Jesus in human form (after His resurrection) rose to the top level where he is seated at the Father's right hand. Read Romans 8:34.
It is important to note that Jesus has not ceased to be in human form when He ascended into heaven. He provides in His human body—the church—a vehicle into which you and I can enter to go where He has gone. According to 1 Corinthians 15 Jesus will exist in this form until the last enemy—death will be brought into subjection under His feet.
Read Hebrews 5:1-10. Here we will see that Jesus is…
begotten of God…
a priest forever…
praying, beseeching, crying on our behalf…
the source of eternal salvation…
learned obedience through His suffering…
perfect (in human form) as our High Priest!
…
2) JESUS IS PERFECT THROUGH HIS SELECTION BY GOD (READ 5:1-4).
These verses give the general qualifications of a high priest. Later in verses 5-10 we'll see Jesus qualifications which supersede Aaron's
Aaron did not seek to become high priest. He and his family were chosen by God. Jesus too was chosen by God. He did not choose His task; God chose it for Him. At His baptism God said, "You are my Son; today I have begotten you" (Ps. 2:7). Like Aaron, Jesus accepted God's appointment. Unlike Aaron, Jesus is a priest like Melchizedek—a royal priest of God. Jesus was never intended to become a Levitical priest. He is a priest as Melchizedek is a priest. We will hear more on this in chapter 7.
LET'S LOOK AT SOME OF THE GENERAL QUALIFICATIONS FOR A HIGH PRIEST FOUND IN VERSES 1-4—
1. He must be taken from among men (v.1; cf. Numbers 8:6,14)
2. He must be a mediator of both worship (gifts) and atonement (sacrifices for sins)(v.1).
3. He must be appointed by God (v.1).
4. He is appointed for mankind (v.1).
5. He is appointed in things pertaining to God (in spiritual areas)(v.1).
6. He offers gifts (v.1).
7. He offers sacrifices for sins (v.1).
8. He must be able to bear gently with the ignorant and the erring (v.2).
9. He was himself encompassed with infirmities (v.2).
10. He is obligated to offer sacrifices for sin for himself and for the people (v.3).
11. He is not self-appointed (v.4).
These were the qualifications of a high priest. What priesthood are we talking about here? Aaron's of course. How long did Aaron's priesthood last? So you can see that the shortcomings of a human high priest was death resulting from sin. Jesus is going to destroy death through his resurrection from the dead providing God and mankind with a human high priest who will not be affected by death nor sin.
3) JESUS IS PERFECT BY HIS SUBMISSION AND SUFFERING (READ 5:5-10).
Here is Jesus' qualifications which are superior to Aaron's qualifications. Jesus was "made perfect", but He was already perfect. This indicates His service to and for us. He was "made perfect" for our sake so that we can have "eternal salvation" by obeying Him. Note that we are not going to be saved by our obedience, but by His. Someone had to earn this salvation. We cannot, so Jesus did...not for Himself, but for us! Our obedience is in response to His salvation. It is then proof of it.
A high priest had to identify with men and with God. In this Jesus was perfect. He identifies with God through his submission which led to His obedience which resulted in His suffering. He identified with God in sinless obedience, and He identified with man with His suffering. Because of sin man suffers. Because of sin Jesus suffered. The resultant sacrifice satisfies both God's and man's needs. God receives perfect obedience through Christ, and man receives the atonement of sins through the suffering of Jesus. There is absolutely no life outside of Christ. There is no joy outside of Christ. There is only impending doom outside of Jesus Christ and His body the church of Christ. No wonder we are to run with a warning to those who are in danger of losing their protection in Christ through dullness towards the word. And that is exactly what the Hebrew writer does beginning in verse 11.
JESUS' QUALIFICATIONS FROM HEBREWS 5:5-10—
1. He was begotten of God (v.5).
2. He is a priest forever (v.6).
3. He offered up prayers/supplications and was heard because of His godly fear (v.7 ASV).
4. He learned obedience by the things He suffered (v.8).
5. He is found perfect (v.9).
6. He is the source of eternal salvation (v.9).
7. He is named of God as a High Priest (v.10).
Jesus reveals the secret of His success for man, at the same time He reveals the spirit which every Christian must adopt. Upon the cross Jesus made a request to God as a High Priest for man... He said, "Father, forgive them for they know not what they do." Our text states that "He was heard because of His reverent submission." God could have saved Him, but He submitted even to the death upon the cross. Jesus said, "...the world must learn that I love the Father and that I do exactly what my Father has commanded me" (John 14:31). The world has learned it, and Jesus has been heard because of His submission. Salvation has been brought down! Now every Xian must adopt a spirit of submission in our obedience to Jesus. READ MATT. 5:3-12.
Salvation at one time was out of man's grasp because God's requirement was and still is sinless perfection. Jesus fulfilled that requirement, not for Himself, but for us. Now His request to forgive us has been granted because of righteousness, and His demands upon us as the recipients of this salvation is not sinless perfection in practice, but loving submission in spirit, and we can do that! Thanks to Jesus salvation is now within grasp not only to us, but to everyone who will call upon the name of Jesus as Lord.
QUESTIONS:
1) When you "blew it" as a youngster, to whom did you turn? Mom? Dad? Brother?
2) What is encouraging about Jesus' priesthood as seen in verses 14-15?
3) That should give us confidence to receive what from God (v.16)?
4) Verses 6 & 10 give two qualities that only Jesus has which make Him a priest after the order of Melchizedek.
5) What are these? (He is eternal, He has been designated by God as such)
6) Why is it so hard for many people to trust the love of God? How could you explain the meaning of the priesthood of Jesus to such a person?
7) Have you ever contemplated turning away from Christ? If you have what made you contemplate this? At such times, of what advantage is it to you to remember Jesus as your high priest?
b. WARNINGS AGAINST BECOMING DULL TOWARDS GOD'S WORD (5:11-6:20).
HEBREWS
JESUS IS THE PROMISED HIGH PRIEST
(5:11-6:20)
LESSON EIGHT by Milt Langston
I. JESUS AS A SUPERIOR PERSON (1:1-2:18).
II. JESUS AS A SUPERIOR PRIEST (3:1-10:18).
A. HE IS A SUPERIOR PRIEST WITH BETTER SALVATION (3:1-7:28).
1. HIS PRIESTHOOD IS PREEMINENT TO THE MOSAIC ORDER (3:1-4:13).
2. HIS PRIESTHOOD IS SUPERIOR TO THE LEVITICAL ORDER (4:14-7:28).
A. JESUS IS THE PERFECT HIGH PRIEST (4:14-5:10).
1) JESUS IS PERFECT IN HIS SYMPATHY WITH MANKIND (4:14-16).
2) JESUS IS PERVECT THROUGH HIS SELECTION BY GOD (5:1-4).
3) JESUS IS PERFECT BY HIS SUBMISSION AND HIS SUFFERING (5:5-10).
b. WARNINGS AGAINST BECOMING DULL TOWARDS GOD WORD (5:11-6:20).
Here we come to one of those digressions so prevalent in the book of Hebrews. He is teaching us about the priesthood of Jesus, and has been using the example of Melchizedek's priesthood. Deep teaching which he warns is hard for some to grasp. The Hebrew writer pauses to cause his readers to face up to their mental immaturity. So we come to the third warning in this book so far.
First we were warned of drifting from the word (cp.2). Then the warning against doubting God's power and His word by failing to act (cps. 3 & 4). Now we are being warned concerning becoming dull to the word. Notice the progression of apostasy: First we drift from God's word losing interest, then we become lethargic and uninvolved through unbelief, and now we progress to becoming bored with it all failing to even learn never reaching spiritual maturity. This reminds me when congregations shorten the Bible Study periods and worship periods as short as they can to cut the misery. When Bible Study becomes a bore to teach and to set through it is a symptom of the third stage toward falling completely away from the Lord!
1) THOSE WHO ARE DULL TOWARDS THE WORD REFUSE TO GROW UP SPIRITUALLY (READ 5:11-14).
The term "dull of hearing" (KJV) or "slow to learn" (NIV) comes from a Greek word, "nothros." It means "slow-moving in mind, torpid in understanding, dull of hearing, witlessly forgetful. It can be used of the numbed limbs of an animal which is ill. It can be used of a person who has the interceptive nature of a stone" (Wm. Barclay).
Those who are not excited about learning...who are dull toward the word...will never grow up spiritually. How could they? There are two ways we can lack maturity: (1) WE CAN BE IMMATURE BECAUSE OF A LACK OF KNOWLEDGE. There are many who do not study the word. They say things like, "If it was good enough for mom and dad it is good enough for me!" You can see that their Xianity is not theirs, but their parent's. The word of God is so boring to some that they do not even bother to find out the truth, but take the word of others. This is dangerous because they can fall so easy to false teaching because they don't know the truth first hand. For a Xian who does not study and remain up on the teachings of the word, it would be like a doctor who refused to learn the new treatments and techniques available today. God is infinite. The teachings of Christ are unsearchable. When study of the word becomes boring and painful, the problem is not with God, but with the one who is bored! (2) WE CAN BECOME IMMATURE IN PRACTICE. When the word of God becomes dull, and we are not interested in its deep secrets we fail to reach maturity, not only in knowledge, but also in behavior. Some remain preoccupied with first principles because they are not interested in knowing more. They may know all about church organization, baptism, and the resurrection from the dead, but have not learned to act like a Xian through love, patience, kindness, goodness, etc. They are still a baby drinking milk and not eating solid food. Xians who fuss, find fault, complain, carry grudges are spiritually immature because they do not know any better. They don't know better because the word is dull to them.
In a Bible Class of mature Christians, there should not be a man (or lady if it was a ladies' class) there who would be unable to teach the class. As a matter of fact, an insistence and continual desire for teachings on first principles, is a sign that we are bored by the word, and that we are not mature. When we cannot teach (and teaching is mot just standing up in a classroom) it is also a sign that we are immature.
When we are confused about what is right and what is wrong, it is also a sign that we are immature spiritually. Some feel that it is alright to miss assembly, to withhold contributions, to hold a grudge because they don't know better, and they don't know better because they have only learned the word superficially, not deeply. Indeed the immature would rather there be confusion about right and wrong than to know for sure. When we become opposed to a deeper study of God's word, we progress in a direction toward total rejection of God's word which the Hebrew writer covers in cps. 10 & 12.
QUESTIONS:
a) If you could eat it hot from the oven right now with a glass of cold milk, what would you prefer: Chocolate chip cookies? Pound cake?
b) Home-made bread with butter? What helps you choose what you prefer? (appetite).
c) When we do not prefer to study the deep secrets of God's word what does it say about our appetite?
d) How is Xian practice related to Xian knowledge? Why then do some not want to learn?
LOOKING AT THE TEXT (HEBREWS 5:11-14)
1. The oracles of God, to these first century Jews, were the Old Testament scriptures (cf. Acts 7:37-38; Romans 3:1-2; 1 Peter 4:11).
2. The word "oracle" from v.12 is from the Greek word "logion" which means "sayings."
3. The "basic principles" or "rudiments" in others versions in v.12 refers to the fundamentals or the ABC's of the first principles.
4. These "basic principles" or "rudiments" of the first principles of the "oracles" of God relate not to faith, repentance, confession and baptism as we might think here, but to, the primary introduction of the Messiah in the Old Testament (Note Luke 24:13-49 as an example).
5. The Hebrew writer here is comparing their spiritual state to an immature childhood state (vs. 13-14).
2) REASONS TO GO ON TO MATURITY (6:1-12).
In verses 11-14 of chapter five the Hebrew Christians are being accused. Now motivation is given to cure the problem. Three reasons are listed as to why they ought to go on to maturity: (1) Because growth is necessary spiritually, (2) Because if we do not mature we will crucify the Lord afresh, and (3) Because we need to avoid becoming lazy (or dull) toward the word of God. Really being lazy it the key. One who does not want to learn, who has no spiritual appetite, is dull or lazy toward the word of God. A lazy person does not want to learn what needs to be done because he does not want to do anything. Therefore remaining preoccupied with first principles will avoid learning anything new.
QUESTIONS:
a) Why are people lazy physically?
b) How can this help us understand spiritual laziness?
a) THE NECESSITY OF PROGRESSING SUPRITUALLY (READ 6:1-3).
The exhortation by the Hebrew writer is to progress in our teaching past first principles. To build upon the foundation we have built and not to continue only in foundation teachings.
LOOKING AT THE TEXT (HEBREWS 6:1-3)
PRESS ON UNTO PERFECTION
1. The word "leave" in v.1 comes from the Greek word "aphiemi" which means "to send forth or to send away, to leave alone; to forsake; to divorce" (cf. 1 Corinthians 7:11-12; Matthew 15:14).
2. The word "perfection" also in v.1 to the Hebrew writer (in this context) is the reality or the completeness of Christ and His priesthood as opposed to the shadow system contained in the Old Testament which could never bring perfection (See also 7:11, 19; 8:7; 9:9; 10:1, 12, 14).
3. The Foundation principles that were not to be laid again listed in verses 1-2.
a. Repentance from dead works.
b. Faith towards God.
c. Teachings of baptisms or "washings."
d. Laying on of hands.
e. Resurrection of the dead.
f. Eternal judgment.
4. The appeal of the writer all the way through the book of Hebrews is going to be to leave Judaism and enjoy the new Christian privilege.
QUESTIONS:
1] What are the elementary teachings listed here? How are these a foundation?
2] Are foundation teachings important?
3] When should we go on and progress past these teachings?
b) THOSE WHO ARE IMMATURE CRUCIFY CHRIST AFRESH (READ 6:4-8).
This is the strongest warning yet, and the strongest reason to press on toward maturity. When we become lazy toward the word of God, we have become dulled to the knowledge of salvation. The suggestion is obvious. We can find ourselves outside having "fallen away" from salvation and now dull toward the only thing that can save us. That's worse than being lost.
Notice that this passage like Gal. 5:4 teaches that a person can fall away from ace and salvation. A person who dies unfaithful to Jesus and His church brings Jesus again to public disgrace. It is a sad thing to read in the obituaries of a person we know who used to be a member of the Church of Christ. That person is more lost than a pagan because of his or her choice to forsake Jesus Christ and His salvation. They were believers who became lazy and dull toward the word which at one time they believed. They want to believe but are too lazy to believe. They are worse than lost, they were saved but became lost again. They chose to crucify Christ afresh. Instead of honoring His death, they mock it.
When faith fails to produce fruit for God, but instead produces the fruit of unbelief it will reap destruction. Faith saves, but laziness will destroy faith. Salvation is not by works. The works of the saved do not and can not save them. But the saved will produce works of faith. Works then are a result of salvation. Laziness will kill faith and rob us of salvation!
This does not teach that our salvation is not secure if we believe. Nor does this passage teach that a person is saved by what he does. Grace from God is needed because of our sins. Grace is needed for our justification as well as our sanctification. There would never come a time when God's grace is not enough to keep us saved. There is however a condemnation upon the person who loves life more than he loves Christ and the greatest mockery against Christ is to become so dull towards the word of God that we become lazy. To pretend devotion to Christ while we really do not believe crucifies Christ afresh!
c) LAZINESS WILL KILL FAITH KEEPING US FROM MATURITY AND ROBBING US OF SALVATION (READ 6:9-12).
The Hebrew writer gives the brighter side in these verses. His warnings are designed to keep these Hebrew brethren from falling from grace, and from losing what they had gained in Christ. He refers to their works which he says "accompany salvation." Notice they are the product of salvation. They are the love we have for God and the help we have been to His people.
The Hebrew writer's desire is that the Hebrews imitate those who inherit God's promises. Those who inherit the promises of God are those who believe and are patient in that faith till the end!
Notice that being lazy is what must be avoided! Being lazy does not cause us to fall from grace. We loose salvation when we loose our inheritance. We loose our inheritance when we stop believing and being patient. Laziness is not the problem, but the result of a problem. A lazy person is an unbeliever. Faith will spur us on to action in works of love and help to others!
LOOKING AT THE TEXT (HEBREWS 6:4-12)—
WARNING AGAINST APOSTASY
1. Some first principles of Christianity.
a. Enlightenment.
b. Tasting the heavenly gift.
c. Partaking of the Holy Spirit.
d. Tasting the good word of God.
e. Tasting the powers of the age to come.
2. The word "once" in v.4 is from the Greek "hapax" 9:28; Jude v.3).
and denotes once for all (cf.
3. Four things that are impossible in the book of Hebrews:
a. It is impossible to renew the man once enlightened, etc., to repentance (6:4).
b. It is impossible for God to lie (6:18).
c. It is impossible for the blood of bulls and goats to take away sins (10:4).
d. It is impossible to please God without faith (11:6).
4. The warning against apostasy (6:4-6).
5. The danger and the tragedy of apostasy illustrated (6:7-8).
6. Apostasy is not a fact yet—the writer's encouragement (6:9-12).
7. Two things we need to pay attention t in order to assure ourselves that we have the things which accompany salvation:
a. Faith in God.
b. Patience in tribulation.
2) THE CERTAINTY OF GOD'S PROMISE IS MOTIVATION TO BELIEVE (READ 6:13-20).
Here we are led to the example of Abraham. We have become partakers of the promises to Abraham because in that promise God promises to bless "all the nations of the earth." There were other promises to Abraham, but this one includes us. It was a long time before Abraham even began to even see any of God's promises being fulfilled. For twenty-five years he went without even a son, yet his faith did not waver and he was patient. Oh, he did try to help God out from time to time. In the 15th chapter of Genesis God swears by Himself that he will keep His promises. God does this when Abraham tries to make things easier for God by asking God to bless him through his servant instead of a son. This shows that Abraham did not have a clue as to how God was going to keep his promise. Yet it also shows an Abrahamic faith which was stubbornly placed upon the integrity of his God. God rewarded Abraham's faith and He bolstered it by swearing upon Himself to do what He promised. The Hebrew writer speaks as if this promise was made not only to Abraham, but also to us who believe in Christ. This idea is supported by Paul in Romans 4:16-25.
There is a great lesson here for us. We have been warned not to lapse into a dullness which makes us dull or lazy. Dullness is a sign of a lack of faith, and when we loose our faith, we have lost Christ. Remember that those who inherit God's promise do so "through faith and patience" (v.12), and Abraham received what was promised after waiting patiently for it (v.15).
God has given us two "unchangeable things" as reasons to believe in the promises of God:
A LOOK AT THE TEXT (HEBREWS 6:13-20)
HE ERTAINTY OF OD S ROMISES
T C G ' P
1. The example of Abraham (6:13-15; cf. v.12).
2. The reason God swore to Abraham (6:17)—to show to the heir of the promise the immutability of His counsel (To show that God keeps His promises).
3. The two immutable things in which it is impossible for God to lie:
a. His promise.
b. His oath.
4. The description of the hope set before us (6:18-19).
a. A refuge.
b. An anchor.
c. Sure.
d. Steadfast.
e. Penetrates the veil.
5. The word "forerunner" in v.20 comes from the Greek word "prosdromos." It suggests a trailblazer, one who goes before. One who is first to go.
6. The Christian's hope is based upon:
a. The immutability of God's counsel—His promises.
b. The work of Christ as a forerunner.
a) HE HAS BASED HIS PROMISE UPON HIS OWN INTEGRITY!
Notice that the promises of God are not based upon man's integrity. We would really be in trouble. If I dwell upon my weaknesses or your weaknesses, I have not lifted my eyes high enough. A lot of people lose their faith when they see the weaknesses and mistakes of others. We need to consider God's integrity. In old Testament times when a person made a promise to someone else, he killed an animal and cut it in halves. Then he walked between the halves and said, "Be it done to me as it has been done to this animal if I do not keep my promise." If you will note in Genesis 15 God did this with not just one animal, but with a heffer, a goat, a ram a pigeon and a dove. Our salvation is secure because God has sworn that He will keep His promises. Jesus is the proof of His integrity.
b) GOD HAS GIVEN US HOPE IN JESUS CHRIST WHO SERVES AS OUR HIGH PRIEST.
A Xian's only hope is Jesus. Our hope now resides in heaven. Our hope is not dead but alive. There is a depth of principle suggested here. Our relationship with Christ, and our faith in Christ must grow till He becomes our only hope. A lazy person hopes there is some other way to be saved. But a Xian, who has put to death all hope in self or anything else, has only one hope. That hope is Jesus Christ. This is the anchor to which Xians cling when their faith is being tested, and this is the power which bolsters faith in God's promises!
QUESTIONS:
a) Sometimes we must wait patiently. What is hardest for you to do? Elevators? Traffic jams? Christmas? Waiting for food in a restaurant?
b) How would Abraham's example help us help those who turn away from the living God (3:12) or crucify Christ afresh (6:6)?
c) How did God's promise to Abraham affect Abraham's heirs?
d) Does it have an affect on us today?
e) When is it easiest in life for you to trust in God? When is it hardest?
HEBREWS
JESUS IS AN ETERNAL HIGH PRIEST AFTER THE ORDER OF MELCHIZEDEK
(7:1-28)
LESSON NINE by Milt Langston
I. JESUS AS A SUPERIOR PERSON (1:1-2:18).
II. JESUS AS A SUPERIOR PRIEST (3:1-10:18).
A. HE IS A SUPERIOR PRIEST WITH BETTER SALVATION (3:1-7:28).
1. HIS PRIESTHOOD IS PREEMINENT TO THE MOSAIC ORDER (3:1-4:13).
2. HIS PRIESTHOOD IS SUPERIOR TO THE LEVITICAL ORDER (4:14-7:28).
A. JESUS IS THE PERFECT HIGH PRIEST (4:14-5:10).
1) JESUS IS PERFECT IN HIS SYMPATHY WITH MANKIND (4:14-16).
2) JESUS IS PERVECT THROUGH HIS SELECTION BY GOD (5:1-4).
3) JESUS IS PERFECT BY HIS SUBMISSION AND HIS SUFFERING (5:5-10).
b. WARNINGS AGAINST BECOMING DULL TOWARDS GOD WORD (5:11-6:20).
c. JESUS IS A ROYAL PRIEST AFTER THE ORDER OF MELCHIZEDEK (7:1-28).
To understand this passage better it is well to learn to think like a Jewish scholar. To the Jewish Rabbi there were four meanings found in every passage: (1) There was the literal meaning. This meaning was arrived at simply by looking at the facts. (2) There was also the suggested meaning. (3) Then, there was the meaning which the Jews called "Derush." This was the meaning arrived at after careful and deep investigation. (4) There was also, however; the inner or allegorical meaning. This meaning to the Jews many times was the most important. By reading the apostle Paul's writings we can see some of these interpretation methods in practice. The Jews also placed as much importance on what a passage did not say as they did on what it did say.
In this section the Hebrew writer states that Christ's priesthood is "after the order of Melchizedek." He does this to prove that Christ's priesthood is superior to the Levitical priesthood because Melchizedek's priesthood was superior to the Levitical priesthood. To bring us up to the discussion Read 5:1-10.
1) A TRUE KING AND A TRUE PRIEST (READ 7:1-3).
Notice that Melchizedek was not only a king, but he was also a king. This could never occur in the Aaronic Priesthood because the priest had to be of the tribe of Levi, and the king of the tribe of Judah. Melchizedek's name means "king of righteousness"; but he was the king of Salem which made him also the king of "peace." Notice then the following qualities of Melchizedek's priesthood:
A) IT WAS A PRIESTHOOD OF RIGHTEOUSNESS.
B) IT WAS A PRIESTHOOD OF PEACE.
C) IT WAS A ROYAL PRIESTHOOD, HE WAS A KING.
D) IT WAS A PERSONAL PRIESTHOOD, NOT AN INHERITED PRIESTHOOD BECAUSE HE HAD NO GENEALOGY.
E) IT WAS AN ETERNAL PRIESTHOOD BECAUSE HE HAD NO BEGINNING AND NO END.
We can summarize that Jesus is a High Priest, whose priesthood depends not on any genealogy but on him alone. Genealogy was very important to a Jew, and Christ's genealogy as to His right to be King of the Jews is very precise. But when it comes to His right to be a priest, it was not an inherited right, but His by right according to His own might. It was declared by God Himself through the prophet David in Psalms 110:4.
We can also summarize that Jesus is a High Priest who lives for ever. Therefore His priesthood lasts forever.
Why didn't the Hebrew writer just come out and say these things instead of using Melchizedek as an example? To the Jews Melchizedek was a fact they could not deny. If Melchizedek could be a priest of God, so could Jesus. If Melchizedek was superior to Abraham—the founder of the Jewish nation—the ancestor to the Levitical priesthood—so is Christ.
2) THE GREATNESS OF MELCHIZEDEK (READ 7:4-10).
If Melchizedek was superior to Abraham, then his priesthood was superior to any priesthood which would come from Abraham; and because Christ's priesthood is like Melchizedek's, His is superior! Notice the Jewish logic here:
a) MELCHIZEDEK TITHED ABRAHAM, THEREFORE HE WAS SUPERIOR TO HIM.
Abraham was one of the patriarchs; the patriarchs are superior to their descendants; therefore Melchizedek is greater than the Children of Israel; the Jewish priests are the descendents of Abraham; therefore Melchizedek is superior to them also!
1] THAT MAKES MELCHIZEDEK GREATER THAN THE SONS OF LEVI WHO WERE THE OFFSPRING OF
ABRAHAM.
The Levites received the tithes from the rest of the tribes as a legal enactment. Melchizedek on the other hand received the tithes from Abraham as a right he personally possessed, and Abraham conceded that right.
HE EVITES RECEIVED TITHES AS MORTAL MEN ELCHIZEDEK RECEIVED TITHES AS ON WHO LIVES
2] T L ; M
FOREVER
(7:8).
The Children of Israel were instructed by the Law to give a tenth of all they had to help support the Levite tribe who were not to work for a living but to be a tribe who's purpose was to serve the Lord. They received the tithes as their help to live. Melchizedek received tithes from Abraham because he lived, not in order to live.
3] LEVI, TO WHOM THE ISRAELITES PAID THTHES, MAY BE SAID TO HAVE PAID TITHES TO MELCHIZEDEK
WHEN
A
BRAHAM PAID TITHES.
They paid tithes to Melchizedek when Abraham did, because by the Hebrew writer's logic, they came from Abraham not having yet been born. In other words, when Abraham paid tithes, they paid tithes. The point is that the one who receives tithes is greater than the one who pays tithes. Therefore, Melchizedek is greater than the Aaronic priests, and his priesthood was greater than theirs.
b) ABRAHAM WAS BLESSED BY MELCHIZEDEK.
It is always the the superior who blesses the inferior, therefore Melchizedek was superior to Abraham even though Abraham was the founder of the Jewish race and the father of all who will receive God's blessings. That Gives Melchizedek the unique position of which there is none higher. This is a point we may miss, but which was profound to a Jew, and it was true.
2) THE NEW PRIESTHOOD AND THE NEW WAY MAKES THE OLD OBSOLETE (7:11-19).
Read 7:11-14) To the Hebrew mind the function of religion was to bring man to God. The very function of the Levitical priests was a constant reminder of man's failure as the priest made atonement for sins. Instead of providing access to God the Levitical priesthood only illuminated man's distance from God. If man could have been brought into God's presence by keeping the law and through the Levitical priesthood, then there would be no need for a new priesthood and a new High Priest. The Hebrew writer only introduces the thought here, but the introduction of a new priesthood was a radical thought to the Jews. Because Jesus was not a Levite, but of the tribe of Judah this idea suggested the whole old Mosaic law system be superseded.
Read 7:15-19. The introduction of an eternal and everlasting priesthood like Melchizedek's priesthood makes the Levitical priesthood only temporary. To the Jews this was a powerful idea indeed. This indicated to the Jews that a person could be a Xian without any of the Jewish traditions at all. This is a fact that the Hebrew writer wants his readers to finally come to before he is finished.
LOOKING AT THE TEXT
II. A CHANGE IN PRIESTHOODS (HEBREWS 7:11-19 ).
A. PERFECTION (V.11), TO THE HEBREW WRITER, MEANS TO WALK INTO THE PRESENCE OF GOD (THE HOLY OF HOLIES) WITHOUT A VEIL.
B. AARON'S (LEVITICAL) PRIESTHOOD COULD NOT PRODUCE THAT UNVEILED RELATIONSHIP WITH GOD (V.11).
C. TWO REASONS WHY THE LAW MUST BE CHANGED WITH THE PRIESTHOOD IS CHANGED (VS. 12-16):
1. Jesus belonged to the tribe of Judah, not the tribe of Levi (vs. 13-14).
2. Christ has a non-genealogical priesthood.
D. THE WORD "ANOTHER" (GREEK HETEROS) (VS. 11,15) MEANS "OF ANOTHER KIND, DIFFERENT"—NOT ANOTHER IN A SERIES, BUT A DIFFERENT ONE.
E. THE DECISION TO CHANGE THE PRIESTHOOD WAS GOD'S (PSALM 110:4).
3) THE GREATER PRIESTHOOD OF CHRIST (7:20-28).
The point being made here is that Christ's priesthood is superior to the Aaronic priesthood, but the writer is also introducing another thought which he will deal with later, and that is that the new covenant is superior to the old covenant.
a) THE NEW PRIESTHOOD WAS INTRODUCED BY AN OATH FROM GOD (READ 7:20-21).
This is a quote of Psalms 110:4. The Jew knew that God does not swear or make oaths lightly. He never introduced the ordinary priesthood with such an oath. This is something new and something better.
b) CHRIST IS GOD'S GUARANTEE OF A BETTER COVENANT (READ 7:22).
The whole way of coming to God has been changed. The Jews tried to come to God by keeping the law. They never made it even though they tried. The new way is through the righteousness of Jesus Christ when we have faith in God. What is the proof that God will accept us when we come to God in faith? The answer here is: Jesus Christ is the proof. He is the guarantee of our salvation but through a new covenant.
c) CHRIST'S ETERNAL NATURE MAKES HIS PRIESTHOOD AN ETERNAL PRIESTHOOD (READ 7:23-25).
We have already seen that the Levitical priesthood was temporary. The death of the priests made it so. This is not the case when Jesus is our High Priest. His is an eternal priesthood.
d) CHRIST HAD NO NEED TO OFFER SACRIFICE FOR HIMSELF (READ 7:26-27a
).
In the Old Testament, the priest had to first make atonement for himself before he could make atonement for others. Because Jesus is sinless and pure, this need not be done.
F) CHRIST DOES NOT NEED TO ENDLESSLY REPEAT SACRIFICES FOR OUR SINS BECAUSE HIS SACRIFICE IS SUFFICIENT (READ 7:27b-28).
Jesus is the sacrifice for our sins. He made one sacrifice which never needs to be made again. He has opened up the way through His priesthood for man to come to God's presence!
QUESTIONS:
a) As a child, who was your favorite super-hero? What could he do that you wished you could do?
b) How did Abraham regard Melchizedek?
c) What is the main point being made regarding Abraham and Melchizedek?
d) Why was a new type of priesthood needed?
e) Had the law failed? How was it weak and useless (7:18)?
f) How does verse 11 and verse 18 tie together?
g) In what ways is Jesus a better high priest than the priests of the Jewish system?
h) The Hebrew writer was showing the Jews who were being tempted to go back to the old way the superiority of
Christ's priesthood over that to which they were returning. What are some of the "old ways" which tempt you
to turn aside from Jesus?
Lesson 10 is not in the original
HEBREWS
JESUS IS A SUPERIOR PRIEST IN A SUPERIOR COVENANT
(8:1-6)
LESSON ELEVEN by Milt Langston
I. JESUS AS A SUPERIOR PERSON (1:1-2:18).
II. JESUS AS A SUPERIOR PRIEST (3:1-10:18).
A. HE IS A SUPERIOR PRIEST WITH BETTER SALVATION (3:1-7:28).
B. HE IS A SUPERIOR PRIEST WITH A BETTER SECURITY [COVENANT] (8:1-13).
1. THE NEW COVENANT IS A BETTER COVENANT BECAUSE JESUS IS A BETTER PRIEST WHO SERVES IN A BETTER PLACE (8:1-6).
In the next six verses the Hebrew summarizes his discussion of Jesus being a priest after the order of Melchizedek. He previews a discussion concerning the tabernacle which he will continue in chapter nine, and he introduces the topic of the new covenant over which Jesus is a High Priest.
There is an underlying theme in this book. It is as if the Hebrew writer is trying to get his readers to see the real world. The reality which will endure after the world and all that is in it is destroyed. He is trying to get his readers to see spiritual realities which are perceived only by faith. He says that Jesus now serves in the "true tabernacle", and that the Jews of old served only in "a sanctuary that is a copy and shadow of what is in heaven." The pattern from which Moses built that first tabernacle was heaven itself. In chapter 10 he will say that "the law is only a shadow of the good things to come."
Therefore, the book of Hebrews gives us insights as to heaven and glory by interpreting the shadows which we know. Christ's function as a ministering priest is very valuable to the Christian who is striving to be conformed to His image. We could very well call this section THE MAJESTY OF SERVICE (8:1-6).
A. JESUS IS SEATED WITH GOD AS AN EQUAL. THIS IS MAJESTY (READ 8:1).
Jesus is a priest like Melchizedek who will serve forever because He lives forever. He is a priest based upon his own personal greatness not upon legal appointments or racial qualification. His priesthood death cannot touch. Now notice the place of His ministry. It is heaven itself! When any person went before a king he was expected to bow before that king in reverence and respect. Jesus has approached the greatest, highest, loftiest throne in existence, and He has seated Himself there, at God's right hand as an equal. Can you think of any high priest more exalted than that?
Just think about it. Jesus exists in heaven now as God's representative to man and man's representative to God to serve as our high priest. His function is to provide our access to the father. His heart beats for us. Who would ever want some other high priest other than this great high priest, Jesus?
1) Jesus sits at or on the right hand of the Father.
2) Jesus place is of the throne of God.
3) Jesus place is of the majesty of God.
4) Jesus place as our High Priest is in heaven.
B. THE PLACE OF MAJESTY IS A PLACE OF SERVICE (READ 8:2).
Jesus does not use his majestic position for selfish reasons, but He combines majesty with service. He reveals that indeed the majesty of God is service to others. His high position enables others to attain it and share in it also. In Jesus the supreme majesty and supreme service meet.
The Spirit of Christ dwells in Christians. Christians do not dread service, nor do they attempt to avoid it because they know that Jesus serves others and still does. He is the first fruits of God who will fill heaven with servants. The Jewish tabernacle was a place of service to God. We find in verse 9 that it was a copy of heaven itself. We can conclude that heaven will also be a place of service. The glory of Christ is service, and the glory of Christianity is service!
1) Jesus serves in the sanctuary (in the true tabernacle).
2) Jesus serves in the tabernacle "set up" by God and not man.
a) Set up by God.
b) Not set up by man.
QUESTIONS
Open It
1. What items in your home or office would you consider obsolete? Why?
2. Why is it so difficult to forget the wrongs others do to us?
Explore It
3. Where is Christ right now? (8:1)
4. With what title is God described? (8:1
)
5. What is Christ doing presently in heaven? (8:2
)
C. THE MAJESTY OF THE PLACE OF CHRIST'S MINISTRY (IN HEAVEN) EMPHASIZES THE SUPERIORITY OF HIS PRIESTHOOD AND INTRODUCES THE SECURITY HE HAS TO OFFER IN THE NEW COVENANT (8:3-6).
Christ's position in heaven proves his priesthood to be superior to the levitical priesthood. Were He were still upon the earth He could not honor the law and become a priest. The Hebrew writer says, "He would not be a priest." Jesus is not that kind of priest. He is a priest after the order of Melchizedek, and his position in heaven proves it. This idea introduces the next thought the Hebrew writer wants to develop. Christ has introduced to man a new covenant which replaces the old covenant; after all He could not be a Levitical priest or a priest upon the earth. His position in heaven not only proves Him to be a priest like Melchizedek, but it also proves that man is now under a new covenant.
1)NOTICE THE MINISTRY OF HIGH PRIESTS (READ 8:3-5).
High Priests offer gifts and sacrifices prescribed by the Law.
High Priests serve at a sanctuary (tabernacle).
This tabernacle is a copy and a shadow of heavenly things.
This tabernacle is in accordance to the pattern shown to Moses.
QUESTIONS
1. How do earthly sanctuaries and tabernacles differ from the heavenly one in which Christ is currently serving? (8:2, 5-6)
2. Why would Jesus not be a priest on earth? (8:4)
3. What do the terms "copy," "shadow," and "pattern" indicate about the Levitical priesthood? (8:5)
2)NOTICE NOW THE MINISTRY OF JESUS CHRIST (READ 8:6).
a) Jesus serves by offering Himself for atonement.
b) Jesus' ministry is different which necessitated a change in the covenant…
Jesus Christ belonged to the wrong tribe to serve in the earthly tabernacle.
He belonged to the wrong order of priesthood to serve in the earthly tabernacle.
Jesus is a heavenly priest and therefore must serve in a heavenly sanctuary.
c) Jesus' ministry is a superior (more excellent) ministry.
He is a mediator of a better covenant.
He has founded (established) it on better promises.
QUESTIONS
1. In what ways is the new covenant superior to the old? (8:6)
2. Why did God decide to initiate a new covenant? (8:7-12
3. How motivated would you be to love and worship God if you had to depend solely on animal sacrifices offered by a stranger?
4. What do we learn about God from the fact that He set aside the old covenant in favor of the new?
5. How much should biblical principles and God's truths govern our thoughts and actions?
Apply It
6. In what ways can we show your thanks to God for the fact that He remembers our sins no more?
2. THE NEW COVENANT IS A BETTER COVENANT WITH BETTER PROMISES (8:7-8).
HEBREWS
JESUS SERVES IN A SUPERIOR COVENANT (8:7-13)
LESSON TWELVE by Milt Langston
I. JESUS AS A SUPERIOR PERSON (1:1-2:18).
II. JESUS AS A SUPERIOR PRIEST (3:1-10:18).
A. HE IS A SUPERIOR PRIEST WITH BETTER SALVATION (3:1-7:28).
B. HE IS A SUPERIOR PRIEST WITH A BETTER SECURITY [COVENANT]
(8:1-13).
1. THE NEW COVENANT IS A BETTER COVENANT BECAUSE JESUS IS A BETTER PRIEST WHO SERVES IN A BETTER PLACE (8:1-6).
2. THE NEW COVENANT IS A BETTER COVENANT WITH BETTER PROMISES (Read 8:7-8).
Jesus has been portrayed as a superior high priest. He is to be preferred. Now the Hebrew writer also states that the new covenant of Jesus Christ is also far better than the old covenant. It contains better promises which we will be looking into in the verses to come. The old covenant was weak because of sin, the new one is strong because of Christ. The old Law condemned, but forgiveness of sins is promised in the new covenant.
3. THE NEW COVENANT IS BETTER BECAUSE IT IS DIFFERENT FROM THE OLD ONE—IT IS AN IMPROVED COVENANT (8:9-12).
If the New Covenant is better than the Old one, it stands to reason that it will be different. In the next few verses the Hebrew writer will show some of the ways the New Covenant is different proving it to be superior.
a. IT IS A KEEPABLE COVENANT (READ 8:9).
The reason is given here why a new covenant was sought by God. "Because they did not remain faithful to my covenant, and I turned away from them, says the Lord." If the Jews could not keep the old covenant, it can be concluded logically that this new one can be kept! The Old Law did require faith, but a person was judged by his works (Gal. 3:12: Lev. 18:5). In the New Covenant our faith must produce works (Eph. 2:10), but we will be justified by faith (Eph. 2:8-9; Gal. 3:23-25). Hebrews 5:8-9 states that Jesus has become perfect to save through His obedience and suffering, and He saves all who will obey Him. Salvation is through works, but the works of Christ. Christians can now keep the new covenant because our obedience is through faith in Jesus who serves as our Lord...we now obey Him. We could not keep the Law, but we can serve Christ through faith. The New Covenant is now keepable (my word)...not easy, but keepable through faith!
b. IT IS AN INWARD COVENANT...A COVENANT OF THE MIND AND THE HEART (READ 8:10a).
The Laws of the Old Covenant were written on stone. They became lost to the people. The laws of the New Covenant will be written on the hearts of men and women. There it cannot be forgotten. We do not follow the letter of the law, but we have gone to the heart of the law, and we follow the spirit of the law because we follow the lead of Jesus who serves as our Lord and High Priest.
c. IT IS A COVENANT OF GOD RULED PEOPLE (READ 8:10b).
When Jesus taught us to pray He showed us that our greatest need was to be ruled by God. He said, "Thy kingdom come, thy will be done on earth as it is done in heaven." The Hebrew writer shows that God will be our God and the covenant people will be His people. This indicates loyalty and uniqueness. Because God is our God we have no other loyalties. Because we are God's people we serve no other power.
d. IT IS A COVENANT OF GOD TAUGHT PEOPLE (READ 8:11).
In the Old Covenant people were born in covenant relationship. In the New Covenant people will be reborn into it. Teaching must precede covenant relationship. This is seen in the Great Commission. Jesus insists that His people go out to teach others. Why? Because teaching must preceed conversion. Before a person can be saved by God, he must know God. Therefore, teaching is the command of the Lord Jesus to His people (see also John 6:44-45).
e. IT IS A COVENANT PROVIDING FORGIVENESS (READ 8:12).
Here is the kicker. The New Covenant will make provision for the forgiveness of sins. The Old Covenant did not! The New Covenant is different, and it is better. There is no comparing it to the Old Covenant which is the whole point of this book.
4. THE NEW COVENANT MAKES THE OLD COVENANT OBSOLETE (READ 8:13).
When we get something new, it makes the old obsolete. This is true of most things. The Hebrew writer applies this logic to the Old Covenant. It has become unnecessary and obsolete because it has been replaced by a better covenant!
QUESTIONS:
a. What are you best at forgetting: Names? Assignments? Birthdays?
b. When your car develops chronic problems, are you the type to keep on fixing it up, or to buy a new one? How do you decide "it's got to go"?
c. Why was a new covenant needed (vs.7-9,13)?
d. Which aspect of the new covenant brings you the greatest joy: Having God's law in your heart and mind? Being one of God's people? Knowing God? Having your sins forgiven?
e. Why do these aspects of the new covenant bring you joy?
f. Which of these aspects of the covenant would you like to experience more?
g. Has your experience of these promises been gradual and almost imperceptive, or was it sudden and dramatic?
h. If we have not experienced them at all, why might this be so? Let's be honest with ourselves.
i. The old covenant ended up focusing in on man's abilities (or inabilities) to measure up to God's demands. Do you ever try to come to God on that same basis? What results? What does it mean to you that the new covenant is based on God's actions in Christ, not on yours?
QUESTIONS:
1. Can you think of two faults with the first covenant?
2. Can you name the four improvements in the new covenant?
3. Can you name the "new" ingredients of the "new" covenant?
4. Why did God decide to initiate a new covenant? (8:7-12
)
5. What became of the old covenant when the new was introduced? (8:13)
6. What do we learn about God from the fact that He set aside the old covenant in favor of the new?
7. A person despondent trying to earn God's approval needs to go to whom? How can we show them the way?
HEBREWS
JESUS IS A SUPERIOR PRIEST WITH A SUPERIOR SANCTUARY (9:1-10)
LESSON THIRTEEN by Milt Langston
PART ONE
JESUS AS A SUPERIOR PERSON (1:1-2:18)
PART TWO
JESUS AS A SUPERIOR PRIEST (3:1-10:18)
I. HE IS A SUPERIOR PRIEST WITH BETTER SALVATION (3:1-7:28).
II. HE IS A SUPERIOR PRIEST WITH A BETTER SECURITY [COVENANT] (8:1-13).
III. HE IS A SUPERIOR PRIEST WITH A BETTER SANCTUARY (9:1-28).
The Christian is really a citizen of two worlds, the earthly and the heavenly. We must render unto Caesar the things that are Caesar's and to God the things that are God's (Matt. 22:21). Because we have become citizens of heaven and still live on the earth, we must learn how to walk by faith in a world that is governed by sight. We must become like Moses who was pulled by the world but who saw by faith the invisible God (READ HEBREWS 11:24-27). Practical man says, "Seeing is believing!" But the man of faith replies, "Believing is seeing!"
This same principle of faith must apply to our relationship to the heavenly sanctuary or tabernacle. We have never seen this sanctuary. Yet we believe the Bible's instruction concerning it. Some religious people have not been able to make this step of faith, and they regress back into a faithless concept of ritualistic worship making the church building and facilities become to them the sanctuary. Sadly, they miss out on the real albeit unseen sanctuary in heaven. Some of these religious people call themselves "church of Christers." They think doing anything but worshipping God in the auditorium is somehow forbidden by God. Some in the past have denounced kitchens and fellowships on the church property as if to do so would defile the sanctuary. What is needed is faith in what the Bible teaches. We know that God is not worshipped today in temples made with hands (Acts 7:46-50). There is no special place on earth where God dwells. We may call the building the "house of God," but we know that God does not live there. We may dedicate a building to God and to His service, but it is not His dwelling place. God dwells inside his church. Not the building but the people (1 Cor. 3:16-17; 6:19-20).
In this chapter we are presented with a detailed contrast between the Old Covenant sanctuary (the tabernacle) and the New Covenant heavenly sanctuary where Jesus now ministers. We were introduced to this thought in chapter 8:1-2. (READ 8:1-2).
A. THE INFERIOR OLD COVENANT SANCTUARY [THE TABERNACLE] (9:1-10).
We are reminded that the regulations and practices in the tabernacle were ordained by God. If there was any inferiority in the tabernacle service, it was not because God. He had established the ritual. While the Old Covenant was in force, the ministry of the priests and Levites was ordained by God Himself and perfectly proper.
What, then, was it that made the Jewish tabernacle inferior? There are five answers to that question:
1. IT WAS AN EARTHLY SANCTUARY (READ 9:1).
It was made by man (9:11), and it was pitched by man (8:2). The ex-slaves gave generously till they had to be stopped. From these materials the tabernacle was constructed. Then God gave spiritual wisdom and skill to Bezalel and Oholiab to do the intricate work of making the various parts of the tabernacle and its furnishings (Ex. 35-36). When the tabernacle was finished and set up, it was dedicated to God (Ex. 40). Even though the glory of God moved into the sanctuary, it was still an earthly building, constructed by humans out of earthly materials.
It didn't get the job done. It needed constant repairs. It had geographical limitations. It was close to some yet far from others. It had to be painstakingly taken down and carried when the people moved from one place to another place. Its greatest weakness was that it belonged to the nation of Israel and not to the entire world.
2. IT REPRESENTED SOMETHING MUCH GREATER (READ 9:2-5)
Here we have listed the furnishings of the tabernacle because each of these carries with it a spiritual meaning. They were "copies of the heavenly things" (Heb. 9:23) which Moses followed when he built the first tabernacle in the wilderness.
THE JEWISH TABERNACLE:
The Holy Place ("It's first room…" 9:2) contained….
The table of show bread
The candlestick
The incense altar
The veil
(The position of the incense altar was ordinarily in the Holy Place. "And you shall put it in front of the veil that is above the ark of the testimony, in front of the mercy seat that is above the testimony, where I will meet with you. 7And Aaron shall burn fragrant incense on it. Every morning when he dresses the lamps he shall burn it, 8and when Aaron sets up the lamps at twilight, he shall burn it, a regular incense offering before the LORD throughout your generations" [Exodus 30:6-8 ESV]. However on the day of atonement the incense altar was placed into the Most Holy Place. "Aaron shall present the bull as a sin offering for himself, and shall make atonement for himself and for his house. He shall kill the bull as a sin offering for himself. 12And he shall take a censer full of coals of fire from the altar before the LORD, and two handfuls of sweet incense beaten small, and he shall bring it inside the veil 13and put the incense on the fire before the LORD, that the cloud of the incense may cover the mercy seat that is over the testimony, so that he does not die" [Leviticus 16:11-13 ESV]. In our text, Hebrews 9:4 the incense altar is inside the Most Holy Place so we can assume that the writer of Hebrews is describing the tabernacle on the day of atonement as he says in verse 7, )
Holy of Holies (the "inner room" 9:7) was separated from the Holy Place by the veil and contained….
The Arc of Covenant
A golden pot holding the manna
Aaron's rod that budded
The tables of the covenant (10 commandments)
The cherubim of glory overshadowing the mercy-seat
a. NOTICE THE SPLENDOR OF THE SHADOW.
The following is a detailed descriptive summery written by William Barclay:
The main description of the Tabernacle in the wilderness is in Exodus 25-31 and 35-40. God said to Moses: "Make me a sanctuary that I may dwell in their midst" (Ex. 25:8). It was constructed out of the freewill offerings of the people (Ex. 25:1-7), who gave with such lavish generosity that a halt had to be called to their giving (Ex. 36:5-7).
The Court of the Tabernacle was 150 feet long and 75 feet wide. It was surrounded by a curtain-like fence of fine, twined linen 7 1/2 feet high. The white linen stood for the wall of holiness that surrounds the presence of God. The curtain was supported by twenty pillars on the north and south sides, and by ten on the east and west sides; and the pillars were set in sockets of brass and had tops of silver. There was only one gate. It was on the east side and it was 30 feet wide and 7 1/2 feet high. It was made of fine, twined linen wrought with blue and purple and scarlet. In the court there were two things. There was the Brazen Altar, 7 1/2 feet square and 4 1/2 feet high and made of acacia wood sheathed in brass. Its top was a brazen grating on which the sacrifice was laid; and it had four horns to which the offerings was bound. There was The Laver . The laver was made from the brass mirrors of the women (glass mirrors did not exist at that time) but its dimensions are not given. The priests bathed themselves in the water in it before they carried out their sacred duties.
The Tabernacle itself was constructed of forty-eight acacia beams, 15 feet high and 2 feet 3 inches wide. They were overlaid with pure gold and rested in sockets of silver. They were bound together by outside connecting rods and by a wooden tie beam which ran through their center. The Tabernacle was divided into two parts. The first - two thirds of the whole - was The Holy Place; the inner part - one-third of the whole - a cube 15 feet on each side, was The Holy of Holies. The curtain which hung in front of The Holy Place was supported on five brass pillars and made of fine linen wrought in blue, purple and scarlet.
The Holy Place contained three things. (i) There was The Golden Lampstand. It stood on the south side; it was beaten out of a talent of solid gold; the lamps were fed with pure olive oil, and were always lit. (ii) On the north side stood The Table of the Shewbread. It was made of acacia wood covered with gold; it was 3 feet long, 1 1/2 feet wide and 2 feet 3 inches high. On it there were laid every Sabbath twelve loaves made of the finest flour, in two rows of six. Only the priests could eat these loaves when they were removed. They were changed every Sabbath. (iii) There was The Altar of Incense. It was of acacia wood sheathed in gold; it was 1 1/2 feet square and 3 feet high. On it incense, symbolizing the prayers of the people rising to God, was burned every morning and evening.
In front of The Holy of Holies there was The Veil which was made of fine, twined linen, embroidered in scarlet and purple and blue, and with the cherubim upon it. Into The Holy of Holies no one but the High Priest might enter, and he only once a year, on the Day of Atonement, and only after the most elaborate preparations. Within the Holy of Holiesstood The Ark of the Covenant. It contained three things--the golden pot of manna, Aaron's rod that budded, and the tables of the law. It was made of acacia wood sheathed outside and lined inside with gold. It was 3 feet 9 inches long, 2 feet 3 inches wide, and 2 feet 3 inches high. Its lid was called The Mercy Seat. On the Mercy Seat there were two cherubim of solid gold with overarching wings. It was there that the very presence of God rested, for He had said: "There I will meet with you, and from above the mercy seat, from between two cherubim that are upon the ark of the testimony"(Ex. 25:22).
The Hebrew writer brings all this splendor and glory to the remembrance of his Jewish audience, yet he is declaring that all this glory was only a shadow of reality. The tabernacle was only a representation of something much better. That better tabernacle is where Jesus our High Priest now serves in heaven!
b. IF THE SHADOW HAD SO MUCH SPLENDOR IMAGINE THE GLORY OF THE HEAVENLY.
Here follows a chart of the tabernacle and its furniture in type-and-anti-type. There may be some question about some of these, but scripture is given for study and to indicate why this arrangement is given:
HOLY PLACE CHURCH tab. of Ex. 26 (esp.v.33); 1 Pet.2:5,9-11; Heb.
witness, Nu.18:1-7; Lev.16: 12:22-23; 13:15-16;
Nu.18:2; 2-3,11-13,15-19, Rev. 1:4-6; 5:9-10;
1:50; 32-34; Heb.9:6-7; 2 Cor.6:16-17; Acts
Acts 7:44 Ex.40. 1:8.
CANDLE- LIGHT light for Ex. 25:31-40; 27: Ps.119:105; 1 Jn.2:
STICKS Holy Place 20-21; 37:17-24; 8-11; 2 Pet.1:19-21;
(Ex.40:4 Lev.24:1-3. Matt.24:35; Heb.1:1-2
with
Jn.17:4-
21).
TABLE OF LORD'S Weekly Ex.25:23-30; Lev. Lk.22:17-20,28-30;
SHEWBREAD SUPPER Memorial 24:1-3. Matt.26:26-29; 1 Cor. 11:20-34; 10:14-21.
HOLY OF HEAVEN Where Ex.30:6,10; 25: Heb.4:14; 6:20; 9:12,
HOLIES man meets 21-22; Lev.16: 23-24.
God 15-19.
GOLDEN PRAYERS Ex.30:1-10; 37: Ps.141:2; Lk.1:9-10;
INCENSE 25-29; Lev.4:7; Rev. 5:8; 8:3-4; Heb.
ALTAR 16:12-13; Ex.25: 9:3-4.
10-16.
ARK OF THE COVENANT
G.POT OF GOD'S Ex.16:32-34. Jn.6:30-68; 14:26; Eph
MANNA PROVISIONS 1:3; 2 Cor.9:8-11.
AARON'S GOD'S Num. 17:1-11. Heb.3:1; 5:10; 7:14,
ROD PRIEST 21-22.
TABLES OF GOD'S Deut.10:1-5; Ex. Jn.17:6-8; Rom.16:25-
COVENANT PRECEPTS 20:1-17. 27; Heb.1:1-2; Acts
3:22-26; Jn.1:17.
CHERUBIM GOD'S PARDON Num.7:89; Ex. Eph.2:4-10; 1 Tim.1:
25:21-22. 15-17.
Many spiritual truths are wrapped up in these pieces of furniture, and all of them are of great value. But the most important truth is this: all of this was symbolism and not the spiritual reality. It was this fact that made the tabernacle of the Old Covenant inferior.
3. IT WAS INACCESSIBLE TO THE ORDINARY PEOPLE (READ 9:6-7).
The Jewish tabernacle was not a place of worship to God by the ordinary people. The Jews never went into the tabernacle. Only priests and Levites could enter into the Holy Place, and then only to perform some service. The ordinary people could never enter the Tabernacle. Most would live from birth till death never having seen the glory of that tabernacle. Only hearing about it. No one ever entered the Most Holy Place. It was empty except for the smoke from the incense altar. Only once a year could the High Priest enter, and only then when he had made elaborate preparations for the atonement of his and the people's sins. Contrast the Heavenly tabernacle. Everyone who is a Christian can enter, and Christ has gone before us into the Most Holy Place where we will follow. Where the way once was closed, it is now open for all!
4. IT WAS TEMPORARY (READ 9:8).
We said that the ordinary people could not enter into the first tabernacle. That fact that it still stood the Hebrew writer says was a constant reminder that the way into the Holy of Holies was not yet opened. As a matter of fact the people could not even enter into the Holy Place.
This verse shows, that although the first tabernacle was temporary, it did serve a purpose. Its purpose was to point the way to the future. God planned the ritualistic worship not to satisfy man's needs but to whit his appetite. It taught that the way to the Holy of Holies, the way into God's presence, was not yet open to man. Sir Robert Anderson writes:
While the old covenant had an earthly sanctuary and a human priesthood, the sanctuary of the new covenant is heaven itself, and the Great Priest who ministers there is no other than the Son of God...So exclusive are the prerogatives of the sons of Aaron, that while on earth not even the Lord Jesus Christ could share them. What a staggering fact it is that, during His earthly ministry, the Son of God Himself could not pass within the veil which screened the antechamber to the holy shrine!...The very existence of this antechamber - the "first tabernacle" of Hebrews - gave proof that "the way into the holiest of all was not yet made manifest." An earthly place of worship is proof that the heavenly place of worship is still closed.
5. ITS MINISTRY WAS EXTERNAL [CARNAL], NOT INTERNAL [SPIRITUAL] (READ 9:9-10).
The worship of the first tabernacle was ritualistic. It was carnal, not spiritual. The sacrifices offered, and the blood applied to the mercy seat, could never change the heart or the conscience of the worshiper. All the rituals of the first tabernacle had to do with ceremonial purity, not moral purity. They were "carnal ordinances" that pertained to the outer man. The inner man could not be changed because the blood of Christ had not yet been shed. And because the blood of Christ had not yet been shed, sins remained.
THE TABERNACLE RITUALS (HEBREWS 9:6-10)
1. The priests went continually into the first tabernacle (the Holy Place)(v.6)—but the high priest alone entered the second tabernacle (the Holy of Holies) on the day of atonement (v.7).
2. The way into the Holy of Holies was not made manifest while the first tabernacle stood (v.8).
3. The veil between the Holy Place and the Holy of Holies was rent at the death of Jesus (Matthew 27:50-51).
4. The veil represented the SIN PROBLEM.
5. The old covenant sanctuary was a symbol of BROKEN FELLOWSHIP—the new covenant sanctuary is a symbol of RESTORED FELLOWSHIP.
6. The worshiper under to old covenant was separated from the presence of God by two veils and the priesthood.
7. The TIME OF REFORMATION (v.10) refers to CHRISTIANITY!
QUESTIONS:
a. In your childhood home, was there a "holy of holies" or place where you were forbidden? Was there any things you were not allowed to do?
b. From verses 1-5 how do you picture this earthly sanctuary? What is the significance of each item in the Holy Place?
c. According to verses 8-9 what did not happen in the Jewish tabernacle?
d. Should our conscience be cleared by our worship today? Why?
e. Why were the gifts and sacrifices of the Old Testament not able to clear their consciences?
f. Is it possible today to revert to an outward ritualistic type of worship again?
g. When you feel guilty how do you try to clear your conscience?
B. THE SUPERIOR HEAVENLY SANCTUARY (9:11-28).
Having just described the earthly or Jewish tabernacle as being earthly, as only a representation of a greater...it was only a shadow with splendor, as being inaccessible to ordinary people, as temporary, and finally as ministering to the carnal and not the spiritual; we now see contrasted the ministry of the heavenly tabernacle in the rest of this chapter.
1. IT IS HEAVENLY, NOT EARTHLY (READ 9:11).
The Hebrew writer is trying to get his readers to shift their attention from things upon the earth to things of heaven itself. Man has always had to be reminded to look with faith and not with the eyes of the flesh. The beautiful temple that was in Jerusalem was soon to be destroyed by the Romans. As a matter of fact all the beautiful and seemingly important things of the earth will be someday destroyed, but heavenly realities will endure forever.
The tabernacle of Moses was built with materials from "this creation," and the world is only temporary. Yet this heavenly tabernacle "is not of this creation." It will endure through the aging process. It will endure through the trials and tribulations. It exists now, and the benefits are ours now by faith for Jesus is a high priest "of the good things that are already here!" We no longer need a pattern of the heavenly because we now possess the heavenly where our Lord Jesus Christ now serves our needs. The old tabernacle was like a 100 watt light bulb burning in the night. It was brilliant. But as the sun rises and the brightness and brilliance of its light lightens every nook and cranny, the 100 watt light bulb pales to insignificance. You will not even notice if it is on or off. Such is the comparison between the old and new tabernacle.
THE BETTER TABERNACLE (HEBREWS 9:11)
1. Christ serves in a greater tabernacle. Reasons why that tabernacle is greater:
It is heavenly (9:24).
b. It is the true tabernacle (8:2).
It was pitched by God (8:2).
2. Christ serves in a perfect tabernacle. It is perfect because it does not have a veil inside.
HEBREWS
JESUS IS A SUPERIOR PRIEST WITH A SUPERIOR SANCTUARY AND SACRIFICE (9:11-28)
LESSON FOURTEEN by Milt Langston
PART ONE
JESUS AS A SUPERIOR PERSON (1:2:18)
PART TWO
JESUS AS A SUPERIOR PRIEST (3:1-10:18)
I. HE IS A SUPERIOR PRIEST WITH BETTER SALVATION (3:1-7:28).
II. HE IS A SUPERIOR PRIEST WITH A BETTER SECURITY [COVENANT] (8:1-13).
III. HE IS A SUPERIOR PRIEST WITH A BETTER SANCTUARY (9:1-28).
A. THE INFERIOR OLD COVENANT SANCTUARY (9:1-10)
B. THE SUPERIOR HEAVENLY SANCTUARY (9:11-28).
Having just described the earthly or Jewish tabernacle as being earthly, as only a representation of a greater...it was only a shadow with splendor, as being inaccessible to ordinary people, as temporary, and finally as ministering to the carnal and not the spiritual; we now see contrasted the ministry of the heavenly tabernacle in the rest of this chapter.
1. IT IS HEAVENLY AND NOT EARTHLY (READ 9:11
).
The Hebrew writer is trying to get his readers to shift their attention from things upon the earth to things of heaven itself. Man has always had to be reminded to look with faith and not with the eyes of the flesh. The beautiful temple that was in Jerusalem was soon to be destroyed by the Romans. As a matter of fact all the beautiful and seemingly important things of the earth will be someday destroyed, but heavenly realities will endure forever.
The tabernacle of Moses was built with materials from "this creation," and the world is only temporary. Yet this heavenly tabernacle "is not of this creation." It will endure through the aging process. It will endure through the trials and tribulations. It exists now, and the benefits are ours now by faith for Jesus is a high priest "of the good things that are already here!" We no longer need a pattern of the heavenly because we now possess the heavenly where our Lord Jesus Christ now serves our needs. The old tabernacle was like a 100 watt light bulb burning in the night. It was brilliant. But as the sun rises and the brightness and brilliance of its light lightens every nook and cranny, the 100 watt light bulb pales to insignificance. You will not even notice if it is on or off. Such is the comparison between the old and new tabernacle.
2. THE MINISTRY OF THE HEAVENLY TABERNACLE EFFECTIVELY DEALS WITH SIN OPENING THE WAY TO GOD (READ 9:12-15).
Several contrasts are here provided:
a. A CONTRAST IN THE SACRIFICES PROVIDED (9:12).
The ministry of the heavenly tabernacle involved the sacrifice of Jesus Christ while the ministry of the earthly tabernacle involved the sacrifices of animals. Again the Hebrew writer lays a foundation for a more complete discussion which will be discussed in chapter 10. Do we need proof that the blood of Jesus is superior to the blood of animals? How can the blood of animals solve the problem of man's sins? Jesus became a man. He lived a perfect life, and He gave that life voluntarily for our sins. No animal ever gave its life of its own accord. The high priest in the old covenant took the blood of the animal and presented it in the holy of holies, but Jesus took His blood into heaven itself to present it to God Himself!
The atonement provided by the sacrifice of the Old Covenant was only temporary, but notice that Christ's sacrifice provides "eternal redemption!" Paul speaks of saving faith as a faith that is "from faith unto faith..." in Romans 1:16-17. You and I were led to conversion because we have all believed that Jesus is willing and able to save us. We need to have a faith that will lead us from conversion trusting in God's ability to keep us saved. And Christian works are the proof of such a faith. When works are absent, faith is absent.
b. A CONTRAST IN THE CLEANSING PROVIDED (9:13-14).
The ancient sacrifices cleansed the body from ceremonial uncleanness, but the sacrifice of Jesus cleanses the soul of man (READ 1 JOHN 1:7-9). In the Old Testament a person's heart could be far from God, yet he could still be ceremonially clean by going through the outward motions. In the New
Testament God judges the heart of man, and it is the inward man which is made clean by the sacrifice of Jesus Christ.
In the Old Testament an ordinary person could not serve God in the holy place even if he were cleansed by the sacrifice, but in the New Testament by Christ's sacrifice we are enabled to leave the deeds of death to become the servants of the living God! The carnal man (we all have that side) chafes and resists service. The carnal side of us resists being imposed upon or put out, but the inward and eternal part of us considers it pure joy to be able to serve Jesus by serving others! It is a carnal headache to provide used clothes for poorer folks, but it is a spiritual joy. It is a carnally exhausting to teach V.B.S., but spiritually it is a joy. Can't you see how even as we live in Christ we are putting to death the deeds of the flesh and beginning to find real life in the eternal spirit. Aren't you glad that Christ's sacrifice and blood has redeemed you making your service to God possible?
c. A CONTRAST IN THE BLESSINGS PROVIDED (9:15).
Jesus is the mediator of a new covenant because the old one depended on man's obedience and perfection. Therefore the blessings were only temporary and conditional. If the people obeyed God He blessed them, but if they disobeyed Him, He withheld His blessings. The blessings were also temporal. No mention is made of spiritual blessings. He blessed their crops, their land, their prosperity and their peace. That made it temporary because eventually death claims everyone. But the blessings of Christ are spiritual (EPH. 1:3). Even if every physical blessing is removed, our spiritual blessings remain (Romans 8:31-39).
The New Covenant does not depend on our righteousness but upon Christ's. We are only required to have faith (to be faithful) in Him and in service to Him in His church. The blessings do not depend on our work but His. Our work is only a proof of our faith in Him, and faith is what ties us to Him. The works then are not ours to claim because they were offered in faith. They are His possession. They are His work because we are only a part of His body. (This is an important concept hard for some to grasp and follow).
In the New Testament we have freedom from sin. Therefore we have freedom to serve. Therefore we have eternal blessings from God.
* By means of what blood did Jesus enter the greater and more perfect tabernacle?
* According to verse 13, what was cleansed or sanctified by the blood of animals?
* What does the blood of Jesus cleanse or purge in us?
* What is said about Christ's offering of Himself in verse 14? It was through the eternal Spirit.
* What do you think is significant about the phrase "how much more?" In verse 14?
* What is said in verse 15 about the transgressions which were committed under the first covenant?
3. THE MINISTRY OF THE HEAVENLY TABERNACLE IS BASED UPON THE SACRIFICE OF CHRIST'S DEATH WHICH IS THE ONLY WAY IN WHICH SINS CAN BE
FORGIVEN (READ 9:16-22)
This is a very hard section of scripture for us to understand fully. It could be that it is difficult because of the Hebrew logic being presented. While we may not discover the depths of its meaning, there are some truths which are fairly evident:
a. CHRIST'S DEATH WAS NECESSARY FOR SALVATION (9:16-17).
A covenant is an "agreement," but it can also be like a will. The argument is that a will is not in force till the one who makes it dies. This is the Hebrew writer's way of saying that Jesus had to die to save man. Luke records Christ as saying when He partook of the fruit of the vine in the last supper, "This cup is the new covenant in my blood, which is poured out for you" (Luke 22:20). Before the terms of the New Testament could be in force, Jesus had to die.
I believe that the Hebrew writer will tell us why this is true in the verses which follow, but it is a bit hard to follow. Verse 22 will finish by stating, "without the shedding of blood there is no forgiveness." Jesus had to die to provide the life which was represented in the blood.
* List the things that are said in these two verses about a testament: (1) The death of the one who makes the will must be established. (2) A will does not come into effect while the one who made it is alive. It comes into effect only after the death of the one who made it.
* According to this passage, when did the New Testament (covenant) become effective?
b. THE SIGNIFICANCE OF BLOOD IN THE PLAN OF GOD (9:18-21).
From the beginning God has associated the life with the blood. READ GEN. 9:4-6. Notice that God will require an accounting for our own lifeblood. Animals and men must also give an account, and we are not to eat the blood because the blood represents the life of an animal.
Blood was used in Abel's acceptable sacrifice. It was used in Passover ritual. It was used to consecrate the first covenant when Moses delivered the law to the Children of Israel. It was also demanded in most of the ceremonial rituals of the Old Testament worship. Moses said, "For the life of a creature is in the blood, and I have given it to you to make atonement for yourselves on the altar; it is the blood that makes atonement for one's life" (Lev. 17:11). The Children of Israel had to provide the sacrifice, but it was God who gave life through the blood by allowing atonement.
This helps me understand that God did not view the blood as viewing the death of the animal, but the life of the animal. And the blood of the animals was only a shadow of the blood of Jesus.
Now this New Covenant must also be consecrated by blood. It required Christ's death to provide the blood!
c. WITHOUT THE SHEDDING OF CHRIST'S BLOOD THERE CAN BE NO FORGIVENESS (9:22).
Perhaps Romans 6:23 will shed light on this passage. "The wages of sin is death, but the free gift of God is eternal life in Christ Jesus." Jesus provided the payment for the sins of the world by dying. He gave to God His life by providing His blood. With that life God can now provide eternal life to others. God sees life in the blood. He always has!
There is a depth of meaning here. God's nature demands that we give Him our most prized possession. That would be our life...our own blood. But our life is unacceptable because of our sins. So Jesus provided His life for us by giving His life upon the cross and shedding His blood. Now we can give our most prized possession to God because our life has been made a part of Christ. Christ has provided us a way to give God our most prized possession. Without Him we are lost. Without his blood we are nothing with nothing to give. There is a glimpse of spiritual joy here which we cannot comprehend with the carnal mind.
4. OUR MINISTER (OR JESUS) CONTROLS OUR INHERITANCE FOR US THROUGH HIS CONTINUING LIFE (9:23-28).
A. CHRIST'S MINISTRY PROVIDES PERFECT PURIFICATION FOR OUR SINS (READ 9:23-24).
You and I are now living for God. In our feeble way we are giving God our most prized possession. We have offered God ourselves as "living sacrifices." But even in this we are helpless without Christ's fellowship. He purifies our life's service with His continued presence in the heavenly tabernacle serving as our high priest with the adequate sacrifice. He serves as our Master and our Lord! In return for His provisions we serve God as His servants and as a part of His body the church upon the earth. We are dead to sin but alive to God in Christ (Rom. 6:11). We do this by remaining alert to the Holy Spirit. We are led by the Spirit and not by the flesh.
* List the things that were dedicated with blood under the first covenant: The book, the people, the tent of the tabernacle, the vessels used in worship in the tabernacle!
* According the law of Moses (v.22) how many things were cleansed with blood?
* Under the law, was the same thing true concerning remissions? Give the scripture phrase which verifies your answer: "…without the shedding of blood there is no forgiveness of sins!"
* What is said about the "heavenly things" in verses 23-24? It requires the blood of a better sacrifice than that used in the earthly tabernacle.
* What is said about Jesus in verse 24? He has appeared in heaven on our behalf.
b. CHRIST'S MINISTRY PROVIDES FINAL AND COMPLETE FULFILLMENT OF OUR NEEDS IN FACING GOD (READ 9:25-28).
Again we see the contrast a bit. Jesus' sacrifice is not like the sacrifice of the priests of old. His work as a sacrifice is done. He has provided the fulfillment of all our needs. Man must live then give an account for his life. Jesus has already lived a perfect life in the flesh. Because He is perfect, instead of judgment, He has received justification not only for Himself, but also for those who will believe in Him. He has entered heaven with the blood of that perfect and sinless life, and by doing that He has provided God with life to offer us through Him. When He returns He will bring with Him our salvation if we will wait for it. That's the faith of it. Isn't it?
* How often and with what did the earthly high priest enter the tabernacle?
* How often and with what did Jesus enter the heavenly sanctuary (verse 26)?
* Why do you think the Hebrew writer inserted verse 27 into this discussion?
* What does verse 28 say about (1) Christ's first appearance? And (2) Christ's second appearance?
QUESTIONS:
1) What event in your life have you gone through "once" but never want to go through again?
2) Have you ever seen a "blood and gore" movie? Which one?
3) By what right has Jesus entered into heaven for us (v.12)?
4) Contrast the cleansing of the old testament to the cleansing of the new testament.
5) Because the new covenant is like a will, what did it require of Christ?
6) What does God see in the blood?
7) Does the fact that Jesus died to take away your sins free you to serve Him more? Does it make you spiritually "lazy?" Why?
8) How does the death of Christ provide us a way to give God our most prized possession...our life?
9) So does the blood of Christ represent not only His eternal life but our eternal life as well?
10) Is your life Christ's life?
HEBREWS
JESUS IS A SUPERIOR PRIEST WITH A SUPERIOR SACRIFICE (10:1-18)
LESSON FIFTEEN by Milt Langston
PART TWO JESUS AS A SUPERIOR PRIEST
3:1-10:18
I. HE IS A SUPERIOR PRIEST WITH BETTER SALVATION (3:1-7:28).
II. HE IS A SUPERIOR PRIEST WITH A BETTER SECURITY [COVENANT] (8:1-13).
III. HE IS A SUPERIOR PRIEST WITH A BETTER SANCTUARY (9:1-28).
IV. HE IS A SUPERIOR PRIEST WITH A BETTER SACRIFICE (10:1-18).
Back in chapter 9:11 the idea of Christ's blood introduces the better sacrifice of Jesus our high priest. Yet the discussion in chapter 9 is concerning Christ's ministry within the heavenly tabernacle which is superior to the earthly tabernacle. Now in chapter 10 the Hebrew writer focuses his attention on the sacrifice of Jesus.
THOUGHT QUESTIONS:
1. Why was there a year-by-year remembrance of sins under the old covenant?
2. What was God's will and who came to do that will?
3. Why are sins and iniquities not remembered under the new covenant?
A. CHRIST IS THE ONLY TRUE SACRIFICE (10:1-10).
We need to remember that this book was written to the Jewish Christians who were growing cold in their faith. They were being tempted and drawn back into the Jewish religion. Like so many even today they were losing their vision. They were becoming discouraged. They were becoming lax allowing daily living to drag them away from the riches of eternity in Christ which is the Christian's vision of faith.
This chapter will give us some of the most glorious truths concerning man's salvation in Christ found in the entire Bible. It is almost as if the Hebrew writer will reach a climax of importance here. And the chapter will also contain some of the most stern warnings found in all the Bible concerning the dangers of becoming unfaithful to Christ.
To our section now (verses 1-18) we can say that no religion is better than its ability to deal with sin. Sin is man's problem. All have sinned (Rom. 3:23). If a religion cannot deal with sin, it is of no value to man. Man has long proved that he is unable to resist sin. Even when we do not want to sin, we sin! The knowledge of good and evil is more than we can handle.
1. THE INEFFICIENCY OF THE SHADOW DEMANDED A BETTER SACRIFICE (READ 10:1-4).
The Law required that animal sacrifices be made for the atonement of sins. While it is true that the Jews fulfilled God's requirements in an empty ritualistic manner (ISAIAH 1:11-15), many others came to God in faith and were blessed by God in doing so.
From verse 1 what things are said about the law and sacrifices under the old covenant?
From verse 2 what two things would have occurred if the sacrifices under the old covenant could make perfect?
We are told here that without Jesus (and remember that the Jewish Christians were considering giving Him up) a person can never get beyond the shadows of God. The Law was a "shadow." The word for "shadow" here is from the Greek word, "skia" which means "a pale shadow, a nebulous reflection, a mere silhouette or a form without reality." The sacrifices of old were not real, they were only a shadow of what was real, and Jesus'
sacrifice is what is real. The shadow of a key cannot unlock a door. The shadow of a meal cannot satisfy the stomach's hunger, and neither can the shadow of Christ's sacrifice remove man's sins.
The Old Testament sacrifices far from removing sins only reminded the sinner of his sins. They promised to remove sins, but guilt remained. Those who died in faith were blessed by Christ's death and sacrifice for sins (Rom. 3:25). But the repeated sacrifice being only a shadow of the real sacrifice instead of removing sins reminded the Children of Israel of their sins.
If the doctor gives you a bottle of pills, and you recover from your illness, that bottle of pills will always remind you of your cure. But if the same bottle of pills does not cure you of your illness, it will be a constant reminder that you are still sick. The animal sacrifices of the Old Testament did not remove sins. They only reminded the sinner of his sin because they were repeated year after year.
The blood of bulls and goats declared the desperate need for a better sacrifice. They could never effect the removal of man's guilt, only Christ's sacrifice could accomplish that. Yet, the Hebrew Christians were being tempted to trade the real sacrifice to return to the shadow. Just as some today are flirting with abandoning the sacrifice of Jesus Christ. Even tonight some are so weak in their faith that they have traded fellowship with Jesus and His body for a warm comfortable chair in their living rooms in front of a T.V. set.
2. T
HROUGH
C
HRIST
G
OD HAS PROVIDED THE BETTER SACRIFICE
(R
EAD
10:5-9).
The only effective sacrifice for sin is the sacrifice of Jesus Christ. To make this point the Hebrew writer quotes Psalm 40:6-9. Yet the quote is not a quote of the Hebrew but a quote of the Greek translation known as the Septuagint. There are three major statements made in these verses in the following order: 1) God prepared for Christ a body to accomplish His purpose. 2) The requirement of God is a sacrifice of obedience rather than an animal sacrifice. 3) Jesus took away the first in order to establish the second. For my discussion, I will take the second first, and discuss the first second.
a. THE REQUIREMENT OF GOD IS A SACRIFICE OF OBEDIENCE.
This is really the major thrust of these verses, and it is not a new concept to the Jews. READ 1 SAMUEL 15:22; PSALM 51:16-17; HOSEA 6:6; ISAIAH 1:11-20; MICAH 6:6-8. The Hebrew writer has already said, "Although he was a son, he learned obedience from what he suffered and, once made perfect, he became the source of eternal salvation for all who obey him" (Heb. 5:8-9). Jesus' suffering and death fulfilled the requirements of obedience. While Jesus was in the flesh He perfectly did God's will. Our life is marred by rebellion against God, but Jesus' life was perfect. It is Christ in the Psalm quoted who says, "I have come to do your will, O God." In chapter 9 we learned that the life is in the blood, therefore; the blood of Christ's sacrifice satisfies the requirement of obedience because Christ's life perfectly obeyed God's will.
b. G
OD PREPARED FOR
C
HRIST A BODY!
The Hebrew writer says, "Sacrifice and offering you did not desire, but a body you have prepared for me." This is the same as it is rendered in the Septuagint. Read Psalm 40:6, there it says, "Sacrifice and offering you did not desire, but my ears you have pierced." The meaning here is not real clear. Most think it refers to Exodus 21:1-6 where if a slave did not want to leave his master, the master would pierce his ear to show that he was a willing slave. This description aptly fits Jesus' service to the father. He submitted willingly as God's slave. Another thought is that everything I hear you say I will obey which is how Jesus obeyed the Father to fulfill the requirements of obedience.
But there is another meaning the holy spirit uses here in Hebrews. The body of Christ through out the New Testament has a duel meaning. It refers to His sacrifice in the Lord's supper which is represented by the bread, but it also always refers to the church. Again Hebrews 5:8-9 will help us. Jesus has become the "source of eternal life for all who obey Him." In the body or in the church the perfect requirement of obedience still continues.
In chapter 9 we said that man's greatest gift to the Father is his own life, and through the blood of Jesus we have found a way to offer God that life as a gift of gratitude. Our life as a Christian is swallowed up in Christ. There, in Christ, our life is given to God as the willing slave of Jesus. He became the willing slave to God (Ps. 40:6) so that you and I might become the willing slave of God in Christ who now serves not only as our high priest but as our Lord as well.
Now in chapter 10 we see another parallel to the thought in chapter 9. The true sacrifice to God for sin is obedience, and you and I have the opportunity to become a part of that obedience when we become a part of the body or church of Christ. Christ is the perfect sacrifice, but you and I become a part of Christ dwelling in His body!
c. J
ESUS TOOK AWAY THE FIRST IN ORDER TO ESTABLISH THE SECOND.
The first sacrifice was insufficient. At most it was a translucent shadow of the real sacrifice of Christ which can even involve others who call upon His Name as Lord and Master. That first sacrifice was removed now that Christ has provided the reality of sacrifice. A sacrifice that can bring everybody back to God if that person will just remain faithful! And that is just the point. The Hebrew Christians were on the verge of losing all this glory.
Notes from Sunset's Book:
I. THE NATURE OF THE OLD COVENANT SACRIFICIAL SYSTEM (10:1-8).
A. The old covenant did not reproduce the new covenant privilege (v.1a)—it was a shadow, not the real thing.
B. The old covenant could not with its yearly sacrifices make the worshipers perfect (vs. 1b-2).
1. If those sacrifices could have made the worshipers perfect, then they would have ceased to be offered.
2. For the worshipers once cleansed would have had no more conscience of sins (would no longer have felt guilty for their sins—NIV.
REMEMBER: Under the old covenant the worshipper was separated from God by two veils and the priesthood and was consequently never perfected in his relationship with God.
C. The old covenant sacrifices were an annual reminder of sins (v.3). Sins were remembered by: 1) God; 2) The people; and 3) The priests.
D. The old covenant sacrifices (blood of bulls and goats) could not take away sins (v.4). This is the reason sins were remembered under the law.
E. The old covenant sacrifices did not do God's will (vs. 5-9).
NOTE: The word "will" (vs. 7,9) is being used in the sense of "desire."
3. THE BETTER SACRIFICE OF CHRIST IS EFFECTIVE TO MAKE MAN HOLY (READ 10:10).
Here is the greatest thought yet. Christians have been set apart for God's service...made holy...sanctified by the sacrifice of Jesus Christ. No old Testament sacrifice could ever do that. In the Old Covenant a person had to be ceremonially cleansed repeatedly, but by the sacrifice of Jesus Christ a believer is set apart finally and completely.
B. THE FINALITY OF CHRIST'S SACRIFICE (READ 10:11-18).
When Jesus hung upon the cross for our sins, just prior to His death He made a profound statement: He said, "It is finished!" The Hebrew writer will help us understand this statement by Christ in this section. If the work of redemption is finished, what is left for you and I to do? When we can answer this question we will begin to understand the significance of Christ's power and sacrifice!
1. T
HE FINALITY OF
C
HRIST'
S ACHIEVEMENT
(R
EAD
10:11-12).
Again the Hebrew writer contrasts the new covenant with the old. In the old the priests stood and performed his religious duties again and again with sacrifice after sacrifice. The Hebrew writer states that this cannot take away sins. It only stands as a reminder of sins. Jesus served as our high priest with only one sacrifice, then He sat down. His work finished!
a. I
T CANNOT BE REPEATED OR DUPLICATED.
There are some things which cannot be repeated. Who can do what Christ did? If we search for some alternative to Christ as the Hebrews were on the verge of doing, who could you turn to who could duplicate what Christ has done? That's why, when a person rejects Jesus, it is "impossible" to bring them back to repentance because they are crucifying Jesus afresh (Heb. 6:4-6).
b. IT NEED NOT BE REPEATED.
Jesus' work as high priest need not be repeated because the work is done. It is finished! Verse 18 states: "And where these have been forgiven, there is no longer any sacrifice for sin." Because of Christ's sacrifice sins are remembered no more! Therefore, there need be no repeat of the sufficient sacrifice.
2. THE FINALITY OF CHRIST'S EXALTATION (READ 10:12-13).
The exaltation of Christ is seen in the fact that He no longer stands offering a sacrifice, He has taken His seat in the exalted place. This shows that His work of redemption is completed. He now rules victoriously "till all His enemies are the footstool of His feet." (Psalm 110:1). This idea is a recurring concept in the New Testament. We can face Jesus now as His friend and slave, or we can face Him later and call Him Lord as a conquered enemy. But one thing is sure: every knee will bow to Jesus one way or the other. It's just a matter of time which is based upon God's eternal purpose and plan. To believers James says, "Be patient, then, brothers, until the Lord's coming. See how the farmer waits for the land to yield its valuable crop and how patient he is for the fall and spring rains. You too, be patient and stand firm, because the Lord's coming is near." (James 5:7-8). Christ is exalted, and Christians belong to that exaltation. By faith we wait till that exaltation is made manifest to those who doubt it and disregard it.
3. THE FINALITY OF CHRIST'S TRIUMPH (READ 10:14-18)
The sacrifice of Jesus has "made perfect forever those who are being made holy." The N.I.V. reading here brings out the tense of the verbs. The sacrifice's work is complete, but the process of our being made holy by our faith is still in the process of being accomplished. The emphasis is on the finality of Christ's triumph.
The Holy Spirit testifies to us. His testimony in words we have written in our hearts and minds. I don't think this refers to the indwelling of the Holy Spirit here though it might. It refers to the testimony that Jesus' sacrifice is sufficient. This fact is written in our hearts and on our minds. For proof of this the Hebrew writer goes back to Jeremiah chapter 31 again quoting the Spirit's testimony. The conclusion of that prophesy is summed up in verse 17. God will not remember our sins anymore because of Christ's sacrifice. That is the triumph of Christ's sacrifice and the witness of the Holy Spirit!
So final was Christ's triumph that He need never offer Himself again (10:18). When Jesus hung upon the cross suffering for our sins. God saw it and His justice was satisfied for hanging there was the life of a perfect unspotted sacrifice. God looked for a spot or a blemish, and found none, and if Satan was there and if he looked on he must have began to tremble as the reality of the significance of the sacrifice soaked in. The door to heaven has been opened through His blood. The sacrifice of a sinless man has been made available to any who will believe in Him. Moses E. Lard says of this scene:
Never did the Son of God appear in the eyes of His Father in an attitude of such grace and loveliness as when He expired on the cross. It was 'the savor of the burnt offering' filling the heaven of heavens with its divine fragrance. It was the infinite love of 'the Only Begotten' unfolding its hidden riches to the eye - the all-searching eye of the Father. He saw down into the unfathomable depths of His mighty soul the purest, the brightest flame of undying affection and unshaken devotion to the will of God that was ever seen before or since. History furnishes no fact that even faintly illustrates this scene of unutterable tenderness, of dutiful affection, of intelligent obedience, of unswerving fidelity; and fiction, in its widest range of invention, is struck dumb in view of the heroism and grandeur of the dying scene of Calvary! It must stand alone in the history of the universe, as the most tender, touching, and impressive event ever known; and which will furnish the theme of all the songs in the ages of eternity: 'Unto Him who loved us and washed us from our sins in His own blood be glory and dominion forever and ever.'
C. S
UMMARY
: T
HERE ARE FOUR THINGS THAT
C
HRIST DID FOR US THAT ONLY DEITY COULD DO…
1. HE DIED FOR US (2 COR. 5:14-15).
2. HE AROSE FROM THE DEAD FOR US (ROMANS 1:4-5; PHIL 3:10-11).
3. HE RULES IN HEAVEN FOR US (MATTHEW 28:18; EPH. 1:22-23; JER. 10:23; 1 PET. 2:21).
4. HE INTERCEDES FOR US (1 TIM. 2:5; EPH. 5:20).
QUESTIONS:
1) What repetitious activity do you dislike the most: (a)Cleaning the bathroom? (b)Mowing the lawn? (c)Shaving? (d)Driving to and from work? (e)Doing dishes? (f)Getting out of bed in the morning? Why?
2) What daily rituals do you enjoy the most?
3) Why according to 10:1 is the law insufficient? Knowing what you do about how a shadow is produced, how then is the law a "shadow" of reality? What is the true reality? How can you know that?
4) What is the single most difference between the animal sacrifices of the old and the sacrifice of Christ as is discussed in verses 11-18?
5) Why was the first sacrificial system taken away?
6) In what sense are Christians already made perfect, while still in the process of being made perfect (v.14)? Look carefully at this verse again.
7) According to Romans 6:1-11 what part of man is dead and what part is made alive? Who are we now alive for?
8) Who came to do God's will? Did He do it? How does He still do it from heaven?
9) How are we sanctified?
10) How much of your time is spent with a gnawing and vague sense of guilt? Let's be honest! Can you tell me where you are living according to verse 14: Are you already made perfect, or are you being made holy? What does this tell you about yourself?
11) How can we change guilt to gratitude?
Notes from Sunset's book:
II. THE NATURE OF THE NEW COVENANT SACRIFICIAL SYSTEM (10:9-18).
A. The new covenant sacrifice did do God's will (vs. 9-10).
1. Christ came to do God's will (v. 9a).
2. The first sacrificial system (that did not do God's will) was taken away so that the second sacrificial system (that did God's will) could be established (v.9b).
3. By that will we are sanctified through the offering of the body of Jesus (v.10).
B. The new covenant sacrifice was and is complete and final (vs. 11-14, 18).
1. Seen in contrast between the Levitical priests and Christ (vs. 11-12).
2. Since that time, Christ waits — not to offer another sacrifice but for His enemies to be made His footstool (v.13).
3. By one sacrifice He (Jesus) has perfected forever those that are sanctified (v.14). The Christian does not need another sacrifice because
Christ offered the once-for-all perfect sacrifice.
4. Where sins have been forgiven (remitted) there is no more offering for sin ((v.18).
C. The new covenant sacrifice does not bring a remembrance again of sins (vs. 1517) — "Their sins and iniquities will I remember no more!"
PART THREE
JESUS AS A SUPERIOR PATH (CHRIST THE WAY THROUGH FAITH)
HEBREWS 10:19-13:25
LESSON 16 is not in the original
HEBREWS
THE CONFIDENCE OF FAITH IN JESUS' SACRIFICE
(10:19-39)
LESSON SEVENTEEN by Milt Langston
PART THREE
JESUS AS A SUPERIOR WAY TO GOD
10:19-13:25
I. THE CONFIDENCE OF FAITH IN CHRIST'S SACRIFICE (10:19-39).
In introducing this book the writer pointed out Christ's superiority as a person. He is the Son of God and He is the Son of Man. Then, he demonstrated Christ's superiority as a high priest. As our high priest He provides a better salvation, a better covenant, a better sanctuary, and a better sacrifice. Now in the closing comments of this book the writer will concentrate on the better provisions of Christ's priesthood to we who claim them through faith in His working. This section, then, is a section on faith—faith in Christ's better sacrifice, better sanctuary, better covenant, and better salvation.
The confidence of faith we can now have because of Christ's work as our high priest is that we can enter boldly into God's presence. Fear has been removed because Christ has established peace between God and man. Peace through the blood of Jesus which He has carried into heaven itself. But this confidence in Christ's work as our high priest must be exercised through faith in His working.
And notice that faith issues from the heart. Jesus has made acceptable religion an inward religion! The Jews had turned their religion into a heartless ritualistic observance of commands by God. It had become outward observances, and they had strayed far from the heart of God's desires and God's will. This is not to be so when we come to God by faith. We are told to come to God with "a sincere heart in full assurance of faith, having our hearts sprinkled to cleanse us from a guilty conscience and having our bodies washed with pure water." The sprinkling refers to the blood of Jesus' sufficient sacrifice which represents His sinless life given for our sins. Our hearts are sincere because of Christ's sacrifice, and we know this only through faith. Now our hearts are cleansed not because of the outward cleansing of baptism which is alluded to here, but because of our faith in what God did to us when we were baptized. Baptism is only an outward cleansing of the flesh, but inwardly...in the heart...it cleansed us of all sins removing guilt and providing confidence. But this is not experienced outwardly at baptism. It has been revealed to have occurred inwardly at baptism, and we know it only by faith. Jesus has become the "new and living way" to God's presence, and it is a way of faith in the power and working of God through Jesus Christ our sufficient priest.
THOUGHT QUESTIONS
What are the blessings of having Jesus as a high priest over the house of God? (What should our response be?)
What does it mean to "sin willfully?" (What are the consequences of such sin?)
What can we do to keep from "shrinking back" when faced with trials?
A. THE EXHORTATION TO CONFIDENCE OF FAITH (10:19-25).
Notice in this text that the phrase "let us" occurs five times. Jesus is being described as the way to heaven. A "new and living way" to heaven and God has been opened up to us through faith by the work of Jesus as our high priest. But notice that in this section of scripture we are being exhorted to exert effort ourselves to take advantage of Christ's work. This reminds us that faith without works is indeed dead. It does not mean that the new and living way to heaven depends upon our works, but it does tell us that it involves our works. We are here being exhorted to do something. Salvation comes through the works of Christ which saves man and involves him in working for Christ. Not to merit salvation, but in response to salvation through a faith that obeys Christ (READ 5:8-9). Before we are exhorted to produce effort, we are reminded of three things about Jesus:
1. CONFIDENCE IS SUPPORTED BY THREE THINGS JESUS IS BY FAITH TO THE CHRISTIAN (READ 10:19-22):
Suppose you were a Gentile looking down at the Jewish tabernacle out in the desert. You would not be allowed to enter even into the outer court unless you were born a Jew. Suppose you were a Jew and you looked at those entering into the Holy Place having washed in the golden Laver. You would not be allowed to even do that unless you were born a Levite. Suppose you were a Levite and you looked longingly beyond the veil in the temple. You would not be allowed to do that unless you were chosen to be a high priest, and then only for a very short time. Do you see the significance of Christ's sacrifice? Because of it we are being invited to do what no Jew could even do....enter into the Holy of Holies with Christ because of His blood. And remember that this Holy of Holies in Hebrews is heaven itself.
Before we get into this thought more, there are three things about Jesus that we need to recognize:
a. JESUS IS THE NEW AND LIVING WAY INTO THE PRESENCE OF GOD (READ 10:19-20).
Jesus has provided access into the presence of God. This text tells us that His body was represented in the shadow by the curtain or the veil in the Temple which separated man from God. Jesus represented God to man in the flesh in a way that man could understand...through faith. In all that Jesus did He revealed God to man in a way that we could understand but in a way that required faith on man's part. Some believed Christ. But most doubted Him in unbelief thus rejecting Him. The one thing that separated Jesus from God in many people's eye was His flesh...His body. Like that veil it hid God's presence. But when Jesus offered His body which was torn upon the cross, the love of God shone through revealing access to the Father. Access to God today is through His death and through His body which is also the church. It requires faith to all who will see the torn veil or the torn body of Jesus Christ which provided access to God!
b. JESUS IS THE HIGH PRIEST OVER GOD'S HOUSE (READ 10:21).
The function of the priest in Jewish history was to bridge the gap between God and man with his service and his sacrifices. Jesus has bridged that gap. His sacrifice satisfies God's righteous requirements. The standard of righteousness has not been lowered in order for God to associate with lowly man. Christ fulfills the most demanding of God's righteous requirements. God is still righteous. He is still just, and Christ enables Him to be so. This provides us with satisfaction and confidence. We know that through Christ's sacrifice we now have peace with God, and a way has been opened to us whereby we might offer our service to God through Christ in His body the church.
c. JESUS IS THE ONE PERSON WHI CAN REALLY CLEANSE (READ 10:22).
Man is cleansed by God through the sacrifice of Christ. But even this requires faith in God. For the righteousness is outside of ourselves and our ability. We must humble ourselves under the protective grace of God in Christ. We must stand not apart, not alone, but together in Christ. And we must stand not by our power, but by God's power in Christ. We stand by faith and not by sight.
2. WITH CONFIDENCE A BELIEVER IS URGED TO DO THREE THINGS (READ 10:22-25):
The power of faith is in the object of faith. Some believe in a Jesus of their own making...much like the Jews who rejected Him in the first place. Much like the Hebrew Christians to whom this book is addressed were thinking of doing. We too must guard against any faith other than one based upon the word of God concerning Jesus. He has been portrayed as the only way to God, our ministering high priest, and the only one who can cleanse us from the guilt of sin. Now we must believe in Him, and He is revealed in the Word (Romans 10:17).
Many think that faith is just a mental ascent. But we are to learn that the Lordship of Christ makes demands of our faith, and saving faith produces obedience to the leadership of Christ. Salvation could never be found through obedience to the law because of man's weakness. But, in Christ through the sacrifice of Christ, those, who have submitted to Christ through faith, produce works which are the result of His salvation! Notice three things we are encouraged to do:
a. LET US APPROACH GOD IN FAITH (READ 10:22). NUMBER ONE!
God has opened a "new and living way" whereby we might approach God, but we must enter it and progress upon that way. Christianity is described as "walking in newness of life" (Rom. 6:4), and John describes it as "walking in the Light" (1 John 1:7). A "walk" requires two things: 1) Direction...you must be headed in the right direction to go the right way. And it requires 2) Progress...once headed in the right direction we must make an effort. Growth is expected in our new spiritual life. We must draw near to God.
We draw near to God through our worship. Worship can be divided into two areas of involvement: 1) Worship is praising God. We praise God with our money, with our voices in song, with our voices in prayer, with our minds in study, with our commemoration of the death of Jesus upon the cross at the Lord's Supper. We worship God together in joyful assembly. We find our identity with others in the body of Christ, and thereby draw near to God. But worship also involves 2) Service to God. We serve God by serving others (Matt. 25:3146).
God is perfect. He is holy. He is wonderful, mighty, awesome, and righteous. He does not need to move. Man is the one who needs to change. You and I need to become like God. We need to move by faith towards God. God does not need to change. Jesus came to provide a way..."a new and living way" whereby you and I might go to God, but we must make the effort in response to Christ's majestic effort for us!
You suggest to me some ways that a Christian can draw near to God. (Prayer, Bible study, Bible reading, assembling, et.al.). READ 4:14-16.
b. LET US HOLD FAST OUR HOPE (READ 10:23). NUMBER TWO!
A Gentile had absolutely no hope of ever entering into the Holy of Holies unless he were born again. Christ has provided us with that opportunity. He has brought hope even to these Hebrew Christians where there was no hope in the Old Covenant. They were on the verge of forsaking the salvation they had obtained in Christ for the Old system. They were on the verge of this because they had lost hold of their hope.
There are many enemies to our hope. Materialism, cynicism, legalism, liberalism all try to cause us to loose sight of what we believe. Even fear and boredom can try to take away our hope. That is why our fellowship together is so important, and why we will be further exhorted to worship together and encourage one another.
c. L
ET US SERVE THE NEEDS OF OTHERS IN LOVE
(R
EAD
10:24-25). N
UMBER
T
HREE!
Have you noticed that the Hebrew writer has stressed faith, hope and love? The Holy Spirit revealed through the apostle Paul that the "greatest of these is love!" In these two verses we are being told how to love others.
1) We must spur each other on to noble living (10:24).
Someone said to me the other day, "Milt, you have hound dogged me to death about daily Bible reading till I've started to read my Bible." That is spurring one another on to what is good. In the Greek "to spur" means "to prod or provoke"like the man who wears spurs who provokes his horse to run. It is the only place in the Bible where we are told to provoke one another, and in this case we are to provoke to love and good works.
A mother provokes her children to eat the right food because she loves them. We must spur one another on because of our love for one another. If I know you love me, I'll take almost anything you say or do to me because I know you love me.
When I was a newly married young man, the elders of the church in Mesa asked for volunteers to preach and lead singing at Eloy, Arizona. I would have never preached because I would have never had the courage to volunteer. Two men helped me. Delbert Taylor was asked to preach because he had in the past. He told the elder, brother Ken Davidson, that I should also preach. Ken came to me and told me he thought I should try it because he thought I could do it. Here two brothers provoked me to do something that left to myself I would have never done. God wants us to provoke one another to love and good works because God wants results from our faith (READ EPHESIANS. 2:10).
David Shero took a wayward brother aside on a hunting trip for the sole purpose of provoking him to repentance, and it worked. God give us all enough love for others that we will want to provoke one another to grow spiritually.
We must be careful because some will only get provoked when we try to spur them on. Here we must learn the wisdom to know who to spur on. God tells us not to cast our pearls before swine, and not to give that which is holy to dogs. When the love that motivates us is genuine, most of these problems will take care of themselves. Even a person who gets provoked at us will know if your motive was love or not. Therefore we must take care to love others more deeply because we will never purposefully antagonize one we love, even though we will do anything to keep one we love from falling from grace and losing the precious eternal life we have all found in Jesus Christ.
2)
E
W
MUST WORSHIP TOGETHER
(10:25a).
When Judy I and the children lived in Africa we used a coal fire in the fireplace in the living room to keep warm in the winter. I've built and watched many a coal fire. Once the coal all begins to burn the coal turns red hot, and sometimes we would use a poker to stir the fire so it would breath. But sometimes a piece of the red hot coal would fall out of the grate. Alone it would quickly loose its red luster. It would smoke a bit then turn black again till soon it would be cool enough to pick up by hand.
The same principle applies to our assembly. We have already been told to keep each other stirred up. Together the church burns red hot, but when we begin to forsake the assembly we will turn cold. Without the closeness of Christ and His body, we imperceptibly turn colder toward the things of God until, finally, for all the evidence of eternal life in us, we are no different from the worldly, unsaved people around us.
The word "assembling" or "meeting together" comes from the Greek word "EPISUNAGOGE." It can be translated"assembling together or gathering together." The word is used in only two places in the New Testament. Here in Heb. 10:25, and in 2 Thess. 2:1. In 2 Thess. 2:1 Christians are assembled together in the air with Christ in order to dwell with Him throughout eternity in heaven, and here in Hebrews we are warned against forsaking the gathering together, and the reason we are told not to forsake this assembling is because the approaching of a coming day. To the Hebrew writer, and to believers the assembling together of Christians is no less important than that coming day when Christians will be gathered together to dwell in eternity with Jesus in heaven. The inescapable warning is there. If we loose our desire to assemble with Jesus in His body, we stand to miss the great assembly on the coming Day of gathering.
All this requires faith. To many Jesus is easy to believe in, but this wretched bride of His is harder to take. She (the church) is harder to believe in. She is in the process of becoming perfect, she is not yet made perfect as He is. Therefore, even our assembling requires faith. There are some who love Jesus, but just can't love His bride, and this is shown by their unwillingness to assemble with them, but Jesus has warned that to reject those who represent Him is to reject Him. So we are being exhorted to increase our faith.
a) R
EASONS WHY PEOPLE DO NOT GO TO CHURCH.
There were some who had abandoned the practice of meeting together with other Christians whom the writer of Hebrews is here warning. There are many who still consider themselves Christians who have abandoned the habit of meeting regularly with other Christians. They become Christians in isolation. Let's try to discover some of the reasons why people stop going to church.
i) SOME DO NOT GO TO CHURCH BECAUSE OF FEAR.
Some are ashamed of being seen going to church. They may live or work among people who will make fun of them for going to church. This is why many teenagers when they grow older stop attending church. They are associating with people who will make fun of them for going to church or getting too involved with it.
This type of disciple is trying to be a secret disciple, but someone has said that "discipleship kills secrecy or else secrecy kills discipleship." Therefore, one of the reasons we go to church is to demonstrate where our loyalty lies. Even if it is boring and dry as dust, going to church shows men on who's side you are on.
ii) Some do not go to church because of fastidiousness.
This is the person who shrinks from crowds of people who are not "like himself." When an entire congregation becomes like this, that congregation becomes more like a social club than like the body of Christ. Christians should never make people from different ethnic or economic groups feel uncomfortable. No person to God is "common." But there are people who refuse to worship with a certain congregation because of the kind of people who attend.
iii) SOME DO NOT GO TO CHURCH BECAUSE OF CONCEIT.
This is the person who doesn't think he needs the help of others. He can do it all on his own. He is the person who will say, "You take care of your responsibilities, and I'll take care of mine." They say things like, "I'll take care of the needs of my kids, I'll not go down there and try to take care of the needs of someone else's." No man can live the Christian life without the fellowship of the church, and this verse proves it. The wisest man is only a fool compared to God who is the head of the church. The strongest man is weak in the face of temptation. We cannot survive without Christ, and we need the fellowship of His people. Together we stand. Alone we fall.
b) REASONS WHY WE SHOULD GO TO CHURCH.
Fellowship must never become selfish. We must also fellowship with other Christians in the local assembly. The emphasis in these two verses is not on what we get from the assembly, but rather on what we can contribute to the assembly. People who move to a new area and shop around for the church which will give them the most are not spiritual. They should look for congregations which will give them the most opportunities for service. Faithfulness in church attendance encourages others and provokes them to love and good works. One of the strongest motives for faithfulness is the soon return of Jesus.
3) WE MUST ENCOURAGE ONE ANOTHER (10:25b).
This is the thrust of the thought. When we have a gospel meeting, if the local members do not attend, their unfaithfulness will kill the gospel effort. Unfaithful attendance discourages everything. We need to become encourages of one another. We need to encourage our shepherds. We need to encourage our deacons. We need to encourage our Ladies Bible Class. We need to encourage all our teachers. We need to encourage our new young married adults. We need to encourage our children. The victory is won. Jesus is coming soon. We need to encourage one another to be faithful to Him!
(from Sunset's notes)
BECAUSE WE HAVE A GREAT HIGH PRIEST OVER THE HOUSE OF GOD…
I. WE SHOULD ENTER BOLDLY… (10:19-25) ("Boldly"— freedom in speaking,
unreserved in speech. Free and fearless confidence, cheerfull courage, boldness, assurance …Thayer, p. 491).
A. "…LET US DRAW NEAR…" (V.22).
1. "True heart"—sincere (Hebrews 3:12-13).
2. "Full assurance of faith"—confident (Hebrews 3:6, 14).
3. "Hearts sprinkled from an evil conscience"—innocent (Hebrews 9:13-14; 1 Peter 3:21).
4. "Body washed with pure water"—cleansed.
B. "…LET US HOLD FAST THE CONFESSION OF OUR HOPE…" (V.23).
1. "That it waver not" (Hebrews 2:1).
2. "For He is faithful that promised" (Hebrews 6:13-20).
C. "…LET US CONSIDER ONE ANOTHER…" (VS. 24-25).
1. "Provoking one another."
2. "Not forsaking our own assembling together."
3. "Exhorting one another."
QUESTIONS:
a) How did you meet your spouse?
b) What was the first date with your spouse?
c) Why can we enter boldly through the veil? (What does boldly mean?)
d) What is the "confession of our hope?"
e) Based upon Christ's priesthood and His sacrifice, what attitude of faith should we adopt?
f) What does it mean to "provoke one another to love and good works?"
g) In what specific ways could you spur another Christian on toward love and good deeds?
h) How have you been spurred on by others? Whose exhortation, example, or encouragement means the most to you?
i) Why is meeting (assembling) together so important in Hebrews?
B. WARNING #4 DESPISING THE WORD THAT CREATES FAITH (READ 10:26-31).
The major theme of Hebrews is "God has spoken....how are you responding to His Word?" The Hebrew writer has shifted into high gear now. He has moved into the response God desires from us....faith! We now have confidence to move into God's presence, to spur one another on, to demonstrate our faithfulness and to encourage one another. But the opposite of faith is warned against in this section.
The Hebrew writer has gone to great lengths to compare the superiority of this covenant through the blood of Christ to the inferiority of the old covenant made by Moses. Under the Old Law (Deut. 17:2-7) a covenant breaker was to be killed without mercy at the testimony of two or three witnesses. Since the Old Covenant was inferior to this new covenant we are being led to believe that the punishment will be more severe. Those who contemplated breaking with Christ faced a far greater punishment than the Law ever demanded. This makes this section of scripture a very sobering section indeed.
Notice the progression of the Hebrew writer's warnings: The person who begins to drift from the Word (2:1-4) will soon start to doubt the Word (3:7-4:13). Soon, he will become dull toward the Word (5:116:20) and become "lazy" in his spiritual life. This will result in despising the Word, which is the theme of this warning.
We need to state at the outset here that to one who has repented of sin, the sin he commits are not his life's practice. A repentant sinner is no longer a practicing sinner. However deliberate sin is not forgiven. Deliberate sin comes from one who has not repented or who has reverted.
Let's bear in mind the context once again. The Hebrew writer saw the horror of sin for two reasons: First the church was under persecution during these days. It was actively being opposed by the Jews, and New Testament prophets foretold of the coming persecution from the Romans. The worst possible advertisement for the church was a sinful Christ
HEBREWS
AN EXPLANATION OF SAVING FAITH
(11:1-3)
LESSON EIGHTEEN by Milt Langston
PART THREE
JESUS AS A SUPERIOR WAY TO GOD
10:19-13:25
I. THE CONFIDENCE OF FAITH IN CHRIST'S SACRIFICE (10:19-39).
II. AN EXPLANATION OF SAVING FAITH (11:1-3).
HERE ARE SOME THOUGHTS TO PONDER
1. What is "faith?"
2. What are the benefits of faith?
3. How does faith affect those who have it?
4. When you were a child, what are some ways you showed trust in your parents?
The Hebrew writer has shown Jesus to be superior as a person and as a priest, and now he is showing Him to be superior as the way back to God's presence. That way is a way of faith. If Jesus is a superior person to Moses or angels, and if He is superior as our High Priest, now the writer is exhorting us to trust in Him. The Jewish Christians were being tempted to transfer their trust in Christ back to Moses and the law. They stood to lose everything.
Before the world existed God existed. God is the power which created everything we know. In order for us to get back to God...after all we were created in His image...we must learn to see past and beyond the clutter of all that is physical. Verse three shows us that only through faith will man ever see God and know God. Man can know God in no other way. Peter reminds us that all that is physical will one day be removed...burned up. This will leave only God, and the only ones who will be able to see Him or get to Him are those who have trusted in Him. Those who trusted in anything else will be lost because everything else will no longer be!
Faith is man's access to God. But man is no stranger to faith. We exercise it every day. When we come into this building we had faith. We trusted James' and Johnny's ability to build a save dwelling. We trusted the truss maker's ability to create a safe roof over our heads. When we write a check to pay a bill, we trust the bank to honor our debt. When we take a 5 dollar bill and place it in the contribution plate, we trust the government to honor its worth. When we eat at Underwood's we are trusting the people that work there to provide clean and healthy food to eat. Everyone trusts in something: The Muslim puts his faith in the Koran and in Muhammad; the idolater puts his faith in his graven images; the humanist puts his faith in himself; the philosopher puts his faith in his own ideas; the materialist puts his faith in his money; and the legalist puts his faith in his own good works. Therefore, the importance of saving faith is the object of our faith. No faith other than a faith in Jesus Christ can save. Only Jesus can save sinners, no one else nor nothing else can save us. Peter said it this way: "And in none other is there salvation: for neither is there any other name under heaven, that is given among men, wherein we must be saved" (Acts 4:12 ASV).
Because the Jewish Christians were being tempted to abandon the truth concerning Jesus thinking they could rely upon the older ways, the Hebrew writer gives in this section an explanation of what saving faith is. Then starting in verse 4 to the end of this chapter he will illustrate what he explains in our text.
Having turned our attention to the whole idea of faith we will next be shown the faith of a significant sampling of Old Testament believers who trusted in God. Enoch had never seen a person translated, Noah had never seen a flood, Abraham had never seen the Promised Land. Yet each of these was held to God by knowledge. They did not restrict themselves to what they knew or could do, they trusted in the word and promises of God. Most did not receive what they hoped for in their own lifetime. Abraham died living as a wanderer. He was connected to God not by what he received, not by what he had, not by what he knew, not by what he could see; but by what he believed. If you take away the physical, you have taken nothing away from a believer in God! It was these believers who stood as a great "cloud of witnesses" to bar the way of any believing Jew from going back to the law. These Jewish Christians were on the verge of trading the Spiritual realities which are not seen nor can be seen for what could be seen. They were about to abandon what Abraham, Moses and David longed for and lived for.
The lesson to us is that the world must see to believe, but Christians believe to see. This brings us into contact with the unseen and eternal world that will not be burned up. This is not blind acceptance of which the world accuses us. It is not unquestioning acceptance. It is confidence and knowledge of what we cannot see based upon the integrity and power of God Himself.
True Bible faith is confident obedience to God's Word in spite of circumstances and consequences. The issue is clouded because there are so many who claim to believe who really do not. They want to believe, but fail to obey because of fear or opposition. The book of James reveals to us the attacks against our faith.
Bible faith works quite simply. God speaks, and we hear His word. We trust Him and His word and act on it regardless of the consequences or the circumstances at the time. I know my mother believes in God, not because she has told me, but because she was a daily Bible reader all the days of her life. What was she most interested in? She used to read to me as a child. She heard God, and acted on it. When circumstances and problems arose in her life, she always went to the word for an answer. Sometimes the circumstances in life do not lend themselves to obeying God. And many times the consequences of obeying Him are frightening. It might cost us our job or worse, but believers will obey in spite of the circumstances and consequences.
One of the reasons the world knows so little about real Biblical faith, is because it sees it practiced so little these days. Faith is not a feeling. It is confidence in the one in whom we trust. Unbelievers do not trust God. Believers know Him and trust Him. Believers will give up their own children to let them go do mission work. Believers will go do mission work both home and abroad. Believers will put their jobs second to their God and His kingdom. Believers are just like the people who will be described in this chapter.
A. THERE ARE THREE WORDS WHICH HELP US UNDERSTAND SAVING FAITH (READ 11:1-2)...
"Now faith is the substance of things hoped for, the evidence of things not seen. For by it the elders obtained a good report." (KJV).
"Now faith is assurance of things hoped for, a conviction of things not seen. For therein the elders had witness borne to them." (ASV).
"Now faith is being sure of what we hope for and certain of what we do not see. This is what the ancients werecommended for." (NIV).
Of the three versions above the KJV is probably the most familiar, and the NIV is probably the easiest to understand and get the meaning, but the ASV is the closest to the original meaning in the Greek. From all three we will get our three words: SUBSTANCE, EVIDENCE, WITNESS.
1. SUBSTANCE.
Faith is the "substance," or "assurance," or "being sure" of what you hope for. The word in the Greek which is so translated literally means "to stand under, to support." Faith is to a Christian what a foundation is to a house. It is faith which substantiates our hope. As a house's foundation gives the house a firm footing and confidence to stand, so the faith of a Christian gives the Christian confidence that he will be able to stand. Why do we hope? Because we believe what God has said! What can we show to explain our hope? Only our faith, our confidence, our being sure that God will do what He says!
2. EVIDENCE.
The Hebrew writer also shows that faith is "evidence" or "conviction" or "commendation" to God and others that a person is convinced that God will keep His word. The Greek word from which the K.J.V. translates "evidence" means"conviction." The A.S.V. uses this word. How do I know that I am convinced that God is telling the truth? Do I take the Lord's Supper each time I can to proclaim my faith? Our faith becomes the evidence of our trust in God. Faith is the proof of our certainty. Faith shows others, God included, that I am certain of what I do not see, and faith is the acceptance of what God says. The rest of chapter eleven the Hebrew writer will give examples of men who believed God enough to become active in doing what God said.
This makes what Jesus said a little clearer (LOOK AT JOHN 8:31-47). "31So Jesus said to the Jews who had believed in him, "If you abide in my word, you are truly my disciples, 32and you will know the truth, and the truth will set you free." 33They answered him, "We are offspring of Abraham and have never been enslaved to anyone. How is it that you say, 'You will become free'?" 34Jesus answered them, "Truly, truly, I say to you, everyone who commits sin is a slave to sin. 35The slave does not remain in the house forever; the son remains forever.
36 So if the Son sets you free, you will be free indeed. 37I know that you are offspring of Abraham; yet you seek to kill me because my word finds no place in you. 38I speak of what I have seen with my Father, and you do what you have heard from your father." 39They answered him, "Abraham is our father." Jesus said to them, "If you were Abraham's children, you would be doing what Abraham did, 40but now you seek to kill me, a man who has told you the truth that I heard from God. This is not what Abraham did. 41You are doing what your father did." They said to him, "We were not born of sexual immorality. We have one Father—even God." 42Jesus said to them, "If God were your Father, you would love me, for I came from God and I am here. I came not of my own accord, but he sent me. 43Why do you not understand what I say? It is because you cannot bear to hear my word. 44You are of your father the devil, and your will is to do your father's desires. He was a murderer from the beginning, and has nothing to do with the truth, because there is no truth in him. When he lies, he speaks out of his own character, for he is a liar and the father of lies. 45But because I tell the truth, you do not believe me. 46Which one of you convicts me of sin? If I tell the truth, why do you not believe me? 47Whoever is of God hears the words of God. The reason why you do not hear them is that you are not of God." (ESV) The only people who know God are those who accept the word of Christ. Our faith is the evidence that we can see what is not seen. There are many who do not see. Jesus said, "They have eyes but they do not see!" There are many who do not believe but who think that they do. That is the deceptiveness of Satan. The narrow gate is entered by those who have faith, and that faith is evident! Did you notice that Jesus used Abraham as an example just as the Hebrew writer does. Abraham's faith made him accept the word of God even when it was hard to do so. Even when it was seemingly against God's own promises such as when God asked Abraham to sacrifice his own son, Isaac. Abraham did not understand, but he was going to do what God asked—that's the evidence of Abraham's faith!
Notice in the following verses:
a. By faith Able offered...
b. By faith Noah built...
c. By faith Abraham obeyed...
d. By faith Abraham was enabled...
e. By faith Abraham offered...
f. By faith Isaac blessed...
g. By faith Jacob blessed...
h. By faith Joseph spoke...
i. By faith Moses' parents hid...
j. By faith Moses refused...and chose...
k. By faith the people passed...
l. By faith walls fell when people marched...
m. By faith Rahab welcomed...
n. By faith Gideon, Barak, Samson, Jephthah, David, Samuel and the prophets conquered, administered, gained, shut the mouths of lions, etc., etc.
Faith is a conviction which leads a person to some action or another. Our faith is evident because of what it causes us to do which an unbeliever would never do!
3. WITNESS.
Verse 2 in the A.S.V. reads, "For therein the elders had witness borne to them." This Greek word translated "witness"in the A.S.V. and "commended" in the N.I.V. and "obtained a good report" in the K.J.V. is used twice in verse 4, once in verse 5 and again in verse 39. The word is used again in chapter 12:1. Believers of the past are witnesses to us because through faith God bore witness to them. Look at verse 39, "And these all, having had witness born to them through their faith..."
God witnesses to us through our faith. God communicates in a very special way to man through faith. I suppose this is true because Biblical faith is based upon God's integrity, and that is the only power whereby God can effectively communicate salvation to us. As John taught in 1 John 5:13, we can know we are saved, but it is by faith! Jesus makes an interesting observation in John 6:29, "The work of God is this: to believe in the one whom He has sent." Faith is the work of God. It is the witness of God to us that we are saved.
B. Faith is seeing what cannot be seen (READ 11:3).
If a person does not think he is saved, he is not saved at all because he lacks faith. A person who is not sure lacks the substance of salvation, the evidence of salvation and the witness of God because he lacks faith. Faith is God's way of working with man based solely upon the working and power of God...working on the integrity of God. If a person believes, that faith lets him know his future is secure. "By faith we understand that the worlds have been framed by the word of God." Faith takes away the worlds which have been created, and gets us back to the power of God which cannot be seen any other way. By faith man understands and sees what cannot be seen with the eyes of the flesh, and by faith saints move from the carnal to the spiritual. Just as our baptism made us dead to the flesh and alive in the spirit (Romans 6:1-11; 8:10), faith is what caused us to understand it and to see it.
Faith becomes very practical. It causes us to understand what God does. It helps us to see what others cannot see (READ 11:7,13,27). Faith will enable a person to do what no one else can do. People of faith in the past were ridiculed and made fun of by unbelievers, but they were empowered by God because they looked at the future as if it were the present, and viewed the invisible as if it were seen.
The best way to grow in faith is to walk with the faithful. Let's not forget chapter 10:24-25. Men of God hear His word. They obey it, and God bears witness to them by their efforts for God.
QUESTIONS:
1. Consider someone in our group and describe them with one positive adjective.
2. In chapter 10:32-39 there is an appeal to look at their past, present and future. See the good of the past. Don't throw away your confidence now, and secure a future by not shrinking back. How does this relate to the theme in chapter 11?
3. What three verbs describe faith in verses 1 & 2? What is the object of the first verb? The second?
4. So what is faith?
5. What does faith help us comprehend about the creation of the world?
6. How doe we teach others to believe?
HEBREWS
THE DEMONSTRATION OF SAVING FAITH
(11:4-40)
LESSON NINETEEN by Milt Langston
PART THREE JESUS AS A SUPERIOR WAY TO GOD
10:19-13:25
I. THE CONFIDENCE OF FAITH IN CHRIST'S SACRIFICE (10:19-39).
II. AN EXPLANATION OF SAVING FAITH (11:1-3).
III. THE DEMONSTRATION OF SAVING FAITH (11:4-40).
LESSON AIMS
1. What is "faith?"
2. What are the benefits of faith?
3. How does faith affect those who have it?
Now that faith has been explained, it helps us understand the people of faith recorded in the Bible. (1) Their faith in God placed them at odds with the world. Therefore we see Shadrack, Meshack and Abednego risking death rather than conform to the world's dictates. (2) Their faith caused them to trust the spirit of God's word against the testimony of the senses. Abraham will trust God to cause Sarah to become pregnant even after she has passed the age of having children. He will be willing to kill his own son even though God has promised through him specifically to bless the world. (3) Their faith caused them to invest more in the unseen future rather than spending all on the present. Joseph will make the people promise to carry his bones out of Egypt in faith that something better was in store for his people. Abraham trusted God to provide a promised land even though he died in a tent as a sojourner.
So the Hebrew writer turns now to examples of the faith he has explained in verses 1-3...
A. SAVING FAITH IN THE PRE-DELUVIAN AGE (11:4-7).
To demonstrate faith in action the Hebrew writer first brings our attention to the age before the flood. He introduces us to Able, Enoch and Noah. Able's faith had to do with his worshipping. Enoch's had to do with his walking with God, and Noah's faith had to do with his working for God and his preaching for God.
1. ABLE—WORSHIPPING BY FAITH (READ 11:4).
Genesis chapter 4:1-12 contains the Biblical account of Cain's murder of Able. The Jews had many traditional reasons why Cain killed Able. We can speculate ourselves, but the plain fact from this passage is that Able's faith caused him to worship God in an acceptable manner where Cain's sacrifice was unacceptable. Many point to the fact that because Able's sacrifice required the giving of a life (to the Jews the shedding of blood where the life is found) it was a sacrifice acceptable because it pointed to the sacrifice of Christ. That would place Able's faith in Jesus. We can assume that Able was probably the first human being to die, yet because of his faith, he yet speaks to man concerning the sacrifice of Jesus our savior.
2. ENOCH—WALKING BY FAITH (READ 11:5-6).
Enoch is the seventh descendent of Adam through Seth who replaced Able. A contemporary with Enoch is Lamech who was the seventh descendent of Adam through Cain. As Lemech was godless, Enoch was godly. We know very little about Enoch. The Bible says that "he was not" (Gen. 5:24). He just turned up missing and was never seen again. The Hebrew writer tells us that God took him, and that he did not die. He was a man who lived a righteous life in a time when there were not many who were living so. He exercised his faith. He lived by faith, and he was taken to heaven by faith. The Hebrew writer will summarize that "It is impossible to please God without faith." It is absolutely impossible to please God without faith.
All these heroes of faith produced works, but faith must be in God. Faith in works will cause a person to be condemned. However saving faith always manifests itself in righteousness.
LOOKING CLOSER AT THE FAITH OF ENOCH
1. How was Enoch pleasing to God? What did Enoch do that pleased God?
2. Why would anyone "earnestly seek" God? What would you have to believe?
3. How can you and I seek God?
4. How does God reward us when we seek after Him?
3. NOAH—WORKING BY FAITH (READ 11:7).
"Warned about things not yet seen." Noah saw what had never to this point happened. He saw what was not seen because he believed God's word. Noah took God at His word. The wicked and unbelieving and fearful doubt God's word. They think within themselves that God's description of what will happen will not, and just like those who perished in the flood they are condemned to hell.
"In holy fear built an ark to save his family." Noah took God as this word....he believed God never doubting God's pronouncement. The proof of his faith is that he built that ark. Noah was not saved by his works because he would have never known what to do had he not believed and obeyed God. His building of the ark was the product of his faith. Because of his faith he saved his family.
Acappella (The singing group) sings a song which says, "Let's build us an ark..." How can we build an ark in today's world? (camp?) (V.B.S.?) (others?)
If building an ark is the result of faith. Seeing the coming judgment of us all....ourselves, our children, our relatives, our friends, and our neighbors...doing nothing will result in nothing and is the activity of unbelievers. Sometimes God's people become in this category. May it never be with us!
What is the exhortation to us all and to the Hebrews?
Noah preached for 100 years as the ark was being built. He endured ridicule and persecution from the people as he demonstrated his faith in God's warning. (What does pressure from the outside do to us?).
"By his faith he condemned the world." When old Noah and his family stepped into that ark, he condemned the world, and they were left without an excuse when the floods came. (READ 2 COR. 2:14-16).
"He...became heir of the righteousness that comes by faith." Were it not for Noah's faith Jesus would or could not have come to man. Salvation truly comes by faith. By the faith of these heroes Jesus came into the world. Jesus brought righteousness into the world, and we become righteous by our faith. Faith brought Jesus, and faith connects man to Him now! (READ 2 COR. 5:21; ROMANS 4:23-25).
LOOKING CLOSER AT NOAH'S FAITH
1. What is "reverent fear?"
2. What caused Noah to have this reverence or fear about "events as yet unseen?" (Cf. Romans 10:17)
3. What are some of the "warnings" God has given us in
His word that would cause us to be moved with godly fear?
B. SAVING FAITH IN THE PATRIARCHAL AGE (11:8-22).
1. ABRAHAM—WAITING BY FAITH (READ 11:8-10).
There are many traditions about Abraham. The Arabs have some interesting traditions. The truth is that Abraham believed the promises of God concerning the promised land and concerning the gospel without ever seeing them come to pass. He is put forward to us as the father of our faith. Notice concerning him.
a. ABRAHAM'S FAITH MADE HIM READY FOR ADVENTURE.
When God called Abraham it meant that he had to leave his own home, his own culture, his own family and his own business. He was truly the world's first missionary. Most of us live a cautious life and stress safety first. But to really be a Christian we must learn to be a little reckless. That adventurous spirit comes through faith. We will launch out into the unknown when we believe the message and promises of God.
b. ABRAHAM'S FAITH CAUSED HIM TO BECOME PATIENT.
When Abraham entered into the promised land he was never allowed to possess any of it. He was never allowed to stay in one place. He wandered around like the Children of Israel did in the wilderness for 40 years, yet he never lost his faith.
Most of us lack the faith to be adventurous, yet we are probably more deficient of the faith which will give us patience. We are always in too big of a hurry. For many of us God has to slow us down with old age to get us to believe. But Abraham had a faith which caused him to wait as long as it took. God caused him to wait all his life. I believe that the same will be true of every one of us!
c. ABRAHAM'S FAITH CAUSED HIM TO LOOK BEYOND THIS WORLD.
Abraham was a man with a vision. No man can follow God by faith without it. We must be able to see what is unseen by faith...that is a vision (READ 2 CORINTHIANS 4:18). Faith will cause us to see what is eternal!
2. ABRAHAM—ENABLED BY FAITH (READ 11:11-12).
There are so many lessons here that it is hard to start. Sarah was past the age of having children, and Abraham was "as good as dead." He too had passed the age of fertility. He and Sarah were past 90 years of age. God promised Abraham a seed through Sarah. They had tried to compromise with God. Sarah according to the customs of the day offered Hagar to provide fertility to replace her own infertility. As the years passed the implication became clear to both Abraham and Sarah. God's promise did not depend upon man's wisdom, but upon God's power. This is a lesson we all desperately need to learn.
a. ABRAHAM'S FAITH BEGAN FROM AN UNBELIEVABLE PROMISE BY GOD.
When Abraham first heard the promise of God he fell down on his face and laughed (Gen. 17:17). When Sarah heard it she laughed to herself (Gen. 18:12). And that is not too different from what we all do. God's promises are just too good to be true. Someone has written:
How Thou canst think so well of us, And be the God Thou art, Is darkness to my intellect, But sunshine to my heart.
The message that God loved man so much that He died to save us and make us like Himself so that we could eternally live with Him is too good to be true. That is why we call it gospel...good news!
Abraham's faith started out by laughing at the sheer incredulousness of the promise. But when the baby was finally born God named him Isaac which means, "he laughs!"
b. FAITH IS THE DAWNING REALIZATION THAT GOD DOES NOT LIE.
A person should never promise his children what he cannot give them. Because, if he does promise what he cannot give, he introduces his children to a broken promise fostering dishonesty. When Abraham realized that it was God who was promising that Sarah would have a child, it finally dawned that this was God promising, and nothing is impossible to God. We need this same dawning in our own hearts.
c. FAITH GROWS TILL WE CAN BELIEVE THE IMPOSSIBLE.
For Abraham and Sarah to have children was humanly impossible. Sarah said after Isaac was born, "Who would have said to Abraham that Sarah would nurse children?" (Gen. 21:7). Yet for 15 years Abraham clung to the promise of God that she would. He was not believing in man's power, but God's! Paul said of him, "Against all hope, Abraham in hope believed and so became the father of many nations..." (Read Romans 4:18-21).
d. FAITH'S REWARD IS THAT WE ARE ENABLED TO DO THE IMPOSSIBLE.
The KJV says that Sarah and Abraham received "strength." The ASV states that they were given "power" to do what is impossible to do for a man. The NIV uses the word, "enabled." The reward for faith in God's power is that we are blessed by God to do impossible things through faith!
When we listen to the arguments and plans of men, there are lots of things that are impossible for us. I know some here who thought it would be impossible for this congregation to build and pay for a new auditorium. Now that we have done it wouldn't it be a shame to brag about our own power? There are a lot of desirable things I wish this congregation would do to preach the gospel of Jesus Christ, but there are still skeptics who believe that it is not possible for this small group of people to do it. When are we going to grow up in faith? If it is desirable and God wants (in the congregational context if a majority of the saints desire it) nothing is impossible because the church operates on God's power, not man's. God will enable the church which has faith like Abraham! (READ MATTHEW 28:18-20....DO WE BELIEVE THIS?).
Faith is the ability to lay hold of the grace of God which is sufficient for all things so that the things which are humanly impossible become divinely possible. If God is for us who can be against us? With God all things are possible, therefore; the word impossible has no place in the Christian's or church's thought or vocabulary.
3. THE PATRIARCHS—SEEING BY FAITH (READ 11:13-16).
Did you listen carefully to what was being said? In the face of opposition, disappointments and failures the men of faith continued on in faith till they died. They did not get what was promised. Yet they did not give up on God who promised. Their faith still speaks beyond their death...they were living not for the present but for what was to come. Their faith caused them to be able to see what the world cannot see. They saw a better land.
When our faith is unwavering in spite of the fact that the promises of God to us are unfulfilled to the point of death, and at that point instead of giving up we just die secure in our faith till the end; this pleases God. I believe God would say, "That's what I'm talking about! His or her faith is in Me and in heaven!" Our text states that "God is not ashamed to be called their God!"
It is hard to live as a stranger and foreigner among people who are settled. It is hard for a Yankee to come from the north and live in Bangs, Texas where everyone is related to everyone else. He will live out his days as a stranger...only his children will be at home. But a person of faith chooses to be regarded by the world as a temporary resident. Because we live for heaven, we will never be at home in the world.
The only person who will subject himself to the role of an outsider is the person who has a faith which sees the world to come!
4. ABRAHAM—FAITH TESTED (READ 11:17-19).
The assurance of faith will cause us to do what God instructs. Again Abraham is placed forward as our example. Abraham believed God. His faith had grown to the point that he did not question God. He just did what God instructed. Obedience is the by-product of faith.
God has given us instructions...preach to the lost, seek out the wayward, and discipline the rebellious. Our faith can be measured by our willingness to do these things. Our faith is also tested by our response to the Lordship of Jesus Christ.
LOOKING CLOSER AT ABRAHAM'S FAITH
1. Why did Abraham become a sojourner dwelling in tents in the first place?
2. What was Abraham looking for?
3. If his inheritance was a city made by God — a heavenly city — could he see it? Why did he keep looking?
4. Why did Abraham offer Isaac?
5. What was involved in this trial? What did Abraham's faith have to overcome? How did he do it?
5. ISAAC—BLESSING BY FAITH (READ 11:20).
Isaac's blessing was given when he was old and about to die. The very fact that he was passing on the blessings which had been promised to him are a witness to his faith.
6. JACOB—FAITH TO THE FINISH (READ 11:21).
Like Isaac Jacob passed on the promises of God to his descendents.
7. JOSEPH—CONFIDENCE OF FAITH (READ 11:22).
Joseph knew that God had plans for His people. His faith was evident when he made the people promise to carry his bones out of Egypt. Look at this faith. He did not know how or when God would do what He promised. He didn't even understand what God was going to do, but he saw something and lived and died in faith that God would do it!
C. SAVING FAITH IN THE PATRIOTIC AGE (11:23-31).
Now the Hebrew writer shifts from the age of the patriarchs to the period of history when God began to make the Jews into a nation. We'll call it the patriotic age.
1. MOSES—WAGING WAR BY FAITH (11:23-29).
a. FAITH FROM GODLY PARENTS (READ 11:23).
Moses' faith started in his parents. Moses could thank God for his parent's faith. Just like we today can thank God for our parents' faith. We all as parents need to have a strong faith too for our children's sake. So they can have a example of faith and assurance and sight of things not seen.
b. FAITH TO CHOOSE RIGHTEOUSNESS INSTEAD OF PLEASURE (READ 11:24-26).
Did you notice that Moses' faith caused him to serve Jesus even though he did not know Jesus yet? His faith caused him to choose slavery above luxury in order to have God's promise. Is that any different from our choice? To call Jesus Lord is to make ourselves powerless as slaves. Only by faith will we ever make such a choice!
c. FAITH TO SUSTAIN IN THE WILDERNESS (READ 11:27).
Moses when he ran away went to the wilderness. Maybe he was not ready yet for God's service, but this verse tells us what sustained him there—it was his faith in God's promises. We do not know what he had been taught by his mother, but it must have been a great lesson! Faith in what he had learned sustained him in his seemingly meaningless sojourn in the wilderness.
d. FAITH TO AVOID GOD'S WRATH (READ 11:28).
Moses' faith caused him to do what God commanded concerning the night when God's wrath would fall upon all who did not believer. Moses' faith caused others to believe, and it saved the entire nation. God give us such an influence by our faith!
e. FAITH TO SEE YOU THROUGH TO VICTORY (READ 11:29).
Moses stood by his own might powerless to save himself, but because of his faith in God a way was opened to him which gave freedom to God's people and which destroyed the enemy of God's people. God ever give us such a faith.
LOOKING CLOSER AT MOSES' FAITH
1. List the things Moses did by faith. Why did he do them?
2. What does "recompense of reward" mean in the ASV? What reward is being talked about? (Cf. 2 Corinthians 4:17-18)
3. How did he endure, not fearing Pharaoh, when he forsook Egypt?
4. How can we see God who is invisible?
2. JOSHUA & RAHAB—WINNING BY FAITH (READ 11:30-31
).
D. SAVING FAITH BY VARIOUS HEROES (READ 11:32-40).
QUESTIONS:
1. What aspect of faith (v.1) is demonstrated by Enoch (v.5)? By Noah (v.7)?
2. How is faith demonstrated or explained in each of the three examples from Abraham's life?
3. Give me a Texas definition of faith we have seen here.
4. Give some verbs that describe your faith.
5. Of all the people described in this chapter who do you feel you have the most in common with?
6. How has your faith changed your life?
7. In what sense are we aliens and strangers on earth?
8. Who are some contemporary heroes of faith that spur you on today?
HEBREWS
THE ENDURANCE OF GOD THROUGH SAVING FAITH
(12:1-13)
LESSON TWENTY by Milt Langston
PART THREE JESUS AS A SUPERIOR WAY TO GOD
10:19-13:25
OUTLINE OF THE BOOK TO THIS POINT
I. JESUS IS A SUPERIOR PERSON (1:1-2:18).
II. JESUS IS A SUPERIOR PERSON (3:1-10:18).
III. JESUS PROVIDES A SUPERIOR WAY TO GOD
(10:19-3:25).
A. THE CONFICENCE OF SAVING FAITH (10:19-39).
B. AN EXPLANATION OF SAVING FAITH (11:1-3).
C. EXAMPLES OF SAVING FAITH (11:4-40).
D. THE ENDURANCE OF SAVING FAITH (12:1-13).
E. MANIFESTATIONS OF SAVING FAITH (12:14-13:21)
F. CLOSING EXHORTATIONS (13:22-25).
I. THE CONFIDENCE OF FAITH IN CHRIST'S SACRIFICE (10:19-39).
II. AN EXPLANATION OF SAVING FAITH (11:1-3).
III. THE DEMONSTRATION OF SAVING FAITH (11:4-40).
IV. THE ENDURANCE OF SAVING FAITH (12:1-13).
We've seen the demonstration of saving faith in Hebrews chapter 11. Faith was defined as seeing by faith what cannot be seen any other way. Because we believe God we see His plan for us. The Hebrew writer points out those heroes of faith that are paraded in chapter 11. He finishes by saying that the world is not worthy of them. Then he places the thrust of saving faith by telling us that their faith was not fulfilled in their own lifetime, but they—the people this book was written to—were charged with the opportunity to finish up or fulfill the faith of those who died looking for what God had handed these Christians. In short he is saying, "It is time to go on!" "By all means press on in your faith!"
A. THE EXHORTATION—FOLLOW THE ORIGINATOR OF SAVING FAITH (READ 12:1-3). "…LOOKING TO
JESUS…"
The theme of chapter 12 is hope! This is not the "I hope so" kind of hope. It is a hope for when the doctor tells you that he has exhausted all efforts to prolong your life and now there is no hope. It is a hope that will stand even when the judge looks at you as says, "You are condemned to die!" Hebrew chapter 12 is telling us that our life is no longer hopeless.
There are three things in Hebrews "set before us." (1) First based on the integrity of God we are told to "hold fast to the hope set before us" in Hebrews 6:18. Having run to Jesus as sinners seeking refuge in Him we are being exhorted to hold on to the hope God has provided for us in Jesus. Hold on to your salvation —hold on to your faith—hold on to your hope! Never give up! (2) Second here we find "the race…that is set before us." Before Isaiah was born God had a course for his life to follow—the same with the apostle Paul. Here we find that God also has a plan and purpose for all our individual lives. (3) Thirdly there is the "joy set before" Jesus our Lord. The salvation Jesus purchased was not for Himself, but for us. That's why we are to hold fast to the hope He sat before us. Jesus considered it a joy to suffer for us because his hope and his faith was in the finished product—namely eternal glory in heaven. As we run our race "set before us" we are to look "to Jesus the founder and perfecter of our faith, who for the joy set before him endured the cross, despising the shame…" Jesus' joy was not from the suffering He endured, but for the result of the suffering He was enduring. He anticipated the outcome with joy—that brethren is hope! Short term losses in this life cannot distract from the glory waiting for Christians—that's our hope! And our hope gives birth to our joy because glory is now through our faith in Christ's work a sure thing!
The word picture here is that of a race. At this race there are witnesses—all the people of faith that we looked at in chapter eleven. Let's go back and read 11:39-40. Picture a cross country race. The crowd is not in the arena, but on each side of the course. Who is cheering us on—those whose faith is connected to our race— those who are looking and longing to see the fulfillment of their faith in our faith. They are cheering us on as we run.
Where will our race take us? We don't know, but God does. Read 13:10-15! We are told to look to Jesus who endured the suffering of the cross with joy—not the joy of suffering, but knowing that His sacrifice was bring life and glory to you and to me and to all recorded in chapter 11.
When Jesus died there were to sacrificial fires. One was at the altar before the temple with all the pomp and ceremony and the blood. But there was another fire outside the camp at the dump. It was not a savoring fire with cooking meat, but as defiled fire that stunk of burning refuge and guts and skin. Jesus represents both fires, and our race can take us to both places in our sacrifice to God. How are we going to run? How are we going to endure the suffering? The Jewish Christians were on the verge of quitting. They are being told to press on and run with a renewed faith. That message is the same to you and to me.
1. FIRST THERE IS THE AUDIENCE. "THEREFORE, SINCE WE ARE SURROUNDED BY SO GREAT A CLOUD OF WITNESSES…"(12:1a).
Look who is watching us—Abraham—Paul—David—Moses—all have run their races, and they are looking with bated breath for our race to start. They have a stake in it. They are cheering us on to run and finish our race. They all want us to endure to the finish. They want us to win. They have shown us that it will not be without a struggle, but like Jesus let's look beyond the pain to the glory which motivated Him.
2. THE STRUGGLE. "LET US ALSO LAY ASIDE EVERY WEIGHT, AND SIN WHICH CLINGS SO CLOSELY, AND LET US RUN WITH ENDURANCE THE RACE THAT IS SET BEFORE US." (12:1b).
First of all here there is a discipline required when the writer says, "Lay aside every weight, and sin which clings so closely…" The word "weight" comes from a Greek word "ogkos." This word translated means "whatever is prominent, protuberance, bulk, mass…burden, weight, encumbrance…" This is what sin does to us when we run our race. The word picture here is a track runner who takes off most of his clothes so he can run unencumbered his race. It is obvious that being a Christian and follower of Jesus makes it essential in our repentance to discard certain things in life. You tell me what you think these might be? (habits, pleasures, selfindulgences, associations). In short we are to discipline ourselves as does an athlete shedding anything in our lives which might lead to sin. Can legitimate things like family, home, country become weights that hinder our race? How?
Secondly we are to "run with patience the race that is set before us!" Who set us on this race? Who sets the course we are to run? Notice that we are not set adrift by God. God gives a way. In John 14:6 we are given a way identified as Christ! In the words "set before us" from the Greek it means "to lie or be placed before (a person or thing)…to be appointed, destined…the hope opened to us, offered, given…" (Thayer, p.540).
Patience is needed because this race is not a 100 yard dash. It is a distance race which lasts our whole life through. The need for patience in our race has been stressed in this letter. It is easy to start a race, but it takes perseverance to finish a race. We as Christians are forever on our way to the promised land. The goal is eternal life with Christ. It requires patient perseverance to finish our race.
3. THE STRATEGY—LOOKING TO JESUS (Read 12:2-3).
Our total motivation for running this race is Jesus. It's not for the prize of running the race—Jesus has given us the prize. It is not even because of those described as the "cloud of witnesses" who cheer us on and who have ran their race before us. Our eyes are on Jesus who has set us on our course. The word "looking" comes from a Greek word "aphorao"used only here in verse two. It means "looking away from all else, looking at that which fills the heart." Jesus thrills the soul of a true believer. He has diverted us from the world and caught our eye turning it heavenward.
Jesus is the "founder and perfecter of our faith." The word "founder" or "author" comes from the Greek word,"archēgos" which translated is "a chief leader, prince, author, founder, captain…" This means that Jesus runs this race with us to lead us; he helps point out the pit falls, and lifts us when we fall.
Not only does he set us on our course, he helps us run it. Not only does he lead us he "perfects" our race of faith. This word comes from another Greek word "teleiōtēs" which translated means, "a completer, that is, consummater:—finisher, perfecter." As you can see this race is totally associated with our relationship with Christ. Not only has he moved our sight from worldly pursuits to a heavenly one, he is also the captain and originator of our course and our race. He is the one who set it before us, and when we respond to the race he is there to help us reach the finish because he is the finisher too.
And we are reminded that He is good at finishing because the Hebrew writer says, "…who for the joy that was set before him endured the cross, despising the shame, and is seated at the right hand of the throne of God." (12:2b). Remember the Hebrew Christians were considering giving up. In these verses they are being urged to press on. Jesus' position is being stressed here. He ran His course and because He did He purchased for you and for me—for these Hebrew Christians—this glory and position He has attained. He is setting at the right hand of the throne of the Father. Where He is we will be. We have only to run with Him this race He has set before us.
(Read 12:3) Jesus endured the hostility and opposition against Him from sinners for us that we might have courage to run our race. I believe this means that our race too will be opposed by Satan, but don't fall victim to Satan's trap. You will win this race if you will only run it with patience because Jesus is with us!
NOTES FROM SUNSET'S STUDY GUIDE:
I. LET US RUN WITH PATIENCE (12:1-3).
A. The word "therefore" (v.1) brings us to a conclusion based on the great demonstration of faith presented in chapter 11.
B. The "cloud of witnesses" (v.1) refers to the righteous people mentioned in chapter 11. Those witnesses are witnessing the fact that FAITH IS A VALID RULE OF LIFE!
C. The language of this context is competitive—the language of the Olympic games.
D. The "weights" (v.1) would possibly symbolize:
1. Sins.
2. Materialism.
3. Fleshly attachments and distractions.
E. The "besetting sin" or "sin which clings" of v.1 is THE SIN OF UNBELIEF!
F. The Christian and his running of the race set before him…
1. The Christian runs no to be saved but because he is saved.
2. The Christian runs with patience.
3. The Christian runs looking to Jesus.
a. Jesus is the author and finisher of faith.
b. Jesus, for the joy set before Him, endured the cross.
c. Jesus endured the cross despising the shame.
d. Jesus then sat down at the right hand of the throne of God.
UNDERSTANDING WHAT WE HAVE READ:
What do the following words/or terms mean?
a) "Therefore"
b) "Cloud of witnesses"
c) "Weights"
Describe the race we as Christians run…
B. THE FELLOWSHIP OF GOD IN SAVING FAITH (12: 4-13).
Remember that this section is speaking of the endurance of saving faith. These Hebrew Christians were on the verge of giving up. So in verses 1-3 of this chapter the Hebrew writer has exhorted us to run with patience our race of faith looking to Jesus as we do. From this point he passes on quite naturally and without a break to speak of the important matter of the chastening of the Lord—it is but an extension of this same theme of endurance. God has fellowship with us in our race set before us! We could call this section of our study "The Chastening of the Lord!"
Brother Lynn Anderson said, "What can someone who has never suffered teach you?" In that same vein brother Paul Frizell who for the past 11 years has been serving his wife hand and foot could teach us all a good bit about Christian marriage. What about brother Charlie Young? Could he teach us some things about the value of Christ in our marriages?
1. THE EXPLANATION (READ 12:4).
Jesus has given us a race to run. He is the leader and perfecter of this race. This verse shows the need for chastening as a spiritual discipline in life, for, if this race is to be won and our hope is to be realized, God has to bring pressure on us in certain areas of our lives to help us get rid of weights and sins. If the Hebrew Christians stop running, they are not going to finish this race. We are opening the door to God's fellowship with us in saving faith which begins in the next verse.
My mom used to quote this passage in verse 4 to me when I was feeling sorry for myself—you know what I mean—when I was saying, "Poor, poor, me, look at what I'm going through." She would say, "In your struggle against sin you have not yet resisted to the point of shedding your blood."
What do you think this means? I think mom was right. You have not suffered near as much as you could be suffering. This could be a warning of the suffering the New Testament Christians were about to face. Jesus suffered, but He finished His race. This is also the spirit we need in our suffering that we might finish the race.
The sin mentioned in this verse could be the sins incurred in the things of life which trip us up. It could also refer to the sin these Hebrew Christians need to avoid of throwing in the towel and giving up short of the finish line.
What are some of the trials we endure in life in our struggle against sin?
2. THE EXHORTATION (READ 12:5-6).
This exhortation comes from Proverbs 3:11-12. The Hebrews should have well known the value of God's discipline. The exhortation is the fact that we all need chastening as a spiritual discipline in life, for, if the race is to be won and our hope is to be realized, God must bring pressure upon us in certain areas of our lives to help us get rid of the weights of sin.
Remember the suffering of the Jews because of their sin of idolatry. God could not ignore their trespasses so he caused them to be defeated in battle. He caused Jerusalem to be sacked and destroyed. He even caused the Jews to be carried away with fish hooks in their skin into Babylonian captivity. Jeremiah speaks of God's discipline in Lamentations 3:1-21. (Read Lamentations 3:22-33).
Did God love Israel? Was his wrath seen in their destruction accompanied with His love? Jeremiah seemed to think so. This leads us to our next point…
3. THE EXPECTATION (READ 12:7-8).
It is to be expected that God's chastening will accomplish something. After the destruction of Jerusalem by Babylon, and after a remnant of the Jews returned to rebuild Jerusalem. There was never again a trace of idolatry of foreign gods seen among the Jews. They had plenty of other problems, but idolatry will not be one of them.
When we discipline our own children, why do we do it?
What do you think was good or bad about the discipline you received as a child?
4. THE EXAMPLE (READ 12:9-10).
Now the Hebrew writer gives us an example, an analogy from everyday life. There is obvious lessons from parental chastening. We had to submit to human chastening, but instead of hating our parents, we love them all the more because we know that their disciplining of us was done for our own good. We respect our earthly fathers for their discipline
5. THE EXPERIENCE (READ 12:11-13).
The actual experience of chastening is not pleasant, and the writer of Hebrews has more insight than to pretend that it is. However, chastening does bring about a change. No boy ever relishes a whipping from his father, but the punishment might bring him away from a worse consequence if his actions are not corrected. The punishment of God serves the same purpose!
Let's look at some benefits of discipline by God seen in these verses:
a. Discipline is a sign of sonship (12:6).
b. Discipline is designed to make us chaste (12:7-8).
c. Discipline is for our own good (12:9-10).
d. Discipline purifies us from sins (12:11).
e. Discipline keeps us from falling (12:14-17).
Questions:
1) What measures does the Lord sometimes take toward those who are His "sons"? Why? (12:5-6)
2) What do we learn about God from the fact that He disciplines us? (12:6-7)
3) What sobering truth can be inferred by those who never experience the discipline of God? (12:8
)
4) What are some specific ways God disciplines us?
5) What state might your life be in if God neglected to discipline you when you went astray?
6) Why should we not lose heart when the Lord rebukes or corrects us?
A CLOSER LOOK AT THE SCRIPTURE
II. THE CHASTENING OF THE LORD (12:4-13).
A. Read Hebrews 12:1-13; Proverbs 3:11-12; Deuteronomy 29:18-19 and Genesis 27:30-40.
B. The value of discipline (chastening) as it produces perseverance.
1. Discipline is a sign of sonship (v. 6; Proverbs 3:11-12).
2. Discipline is designed to make one chaste (vs. 7-8).
3. Discipline is for one's profit (vs. 9-10).
4. Discipline is to purify one from sins (v.11).
5. Discipline is to keep one from falling (vs. 12-17).
a. Warning (vs. 14-15; Deuteronomy 29:18-19).
b. Example (vs. 16-17; Genesis 27:30-40).
HEBREWS
DEFYING THE WORD NULLIFYING SAVING FAITH
(12:14-29)
LESSON TWENTY-ONE by Milt Langston
PART THREE
JESUS AS A SUPERIOR WAY TO GOD
10:19-13:25
OUTLINE OF THE BOOK TO THIS POINT
I. JESUS IS A SUPERIOR PERSON (1:1-2:18).
II. JESUS IS A SUPERIOR PRIEST (3:1-10:18).
III. JESUS PROVIDES A SUPERIOR WAY TO GOD (10:19-3:25).
A. THE CONFICENCE OF SAVING FAITH (10:19-39).
B. AN EXPLANATION OF SAVING FAITH (11:1-3).
C. EXAMPLES OF SAVING FAITH (11:4-40).
D. THE ENDURANCE OF SAVING FAITH (12:1-13).
E. MANIFESTATIONS OF SAVING FAITH (12:14-13:21)
F. CLOSING EXHORTATIONS (13:22-25).
I. THE CONFIDENCE OF FAITH IN CHRIST'S SACRIFICE (10:19-39).
II. AN EXPLANATION OF SAVING FAITH (11:1-3).
III. THE DEMONSTRATION OF SAVING FAITH (11:4-40).
IV. THE ENDURANCE OF SAVING FAITH (12:1-13).
V. MANIFESTATIONS OF SAVING FAITH (12:14-13:21)
A. WARNING #5: DEFYING THE WORD NULLIFYING SAVING FAITH (12:14-29).
There has been a progression of five warnings to the Hebrew Christians found in this epistle. The first is a warning against drifting from God's Word through neglect. This warning is found in Hebrews 2:14. The second warning is a warning against doubting Christ's power and Lordship. This warning is found in chapter 3:7 – 4:13. The third warning is found in chapters 5:11 – 6:20. This warning is a warning against becoming dull towards God's word. Here we have a warning against taking God's Word for granted and ceasing to see the glory of God in it. The fourth warning is found in chapter 10:26-31. It is a warning against despising and hating God's Word. This is when a person says, "I hate that passage!" The final warning is found in our text today. It is the final step towards apostasy. This is a warning against defying the Word of God. It is a warning against defying the kingdom of Christ.
The path to nullifying a person's faith which results in salvation is as follows: drifting from God's word, doubtingit, becoming dull towards God's word, despising it and finally defying God and His word.
1. THE NEED FOR SPIRITUAL EXERCISE TO AVOID DEFYING GOD'S WORD (READ 12:14-17).
In verse 14 there is a path we need to follow—it is the path of peace (Read 12:14). Back in verses 12 & 13 we were told to stop drooping around and prepare for getting on with it. What we are to get on to is this path of peace found in fellowship with God in pursuing holiness which is mentioned here. So the path we are to follow is a path of peace and sanctification (holiness). We could call this "path of peace" God's "eternal purpose" which the apostle Paul refers to it. We could call it God's way or God's will for which Jesus prayed when He prayed in the garden.
A provision for this Christian journey is found in verse 15, "the grace of God!" Any Christian endeavor will fall short without this provision. So the writer says "See to it…"
A set of problems are will result if we do not follow God's plan and try to make endeavors without God's grace. These are mentioned in the latter part of verse 15 & verse 16 Esau being used as an example (Read verses 15-17). The peril we might be headed towards without God's grace is the peril which befell Esau. We need to remember Matthew 7:20-21 where Jesus declares that many who serve in His name will be called "evil doers." It is possible to go on in our own wisdom and unwittingly defying the will of God by trying to serve God on our own.
2. THE GOAL WE NEED TO ATTAIN (READ 12:18-24). "FROM MT. SINAI TO MT. ZION!"
There follows here an edifying contrast between the errors of the past and the thrills of the present. This contrast seems so balanced that it can be laid down in a striking parallel. All the trembling, fear, and imperfections of the past are seen gloriously transformed into the thrills, favors, and perfection of the present. This is a very brief summation of all that the book of Hebrews has been doing from the first. The text makes us all want to shout out: "How blest are we in Christ Jesus!"
THE TERRIFYING PAST:
1. The mount that might be touched (tangible)—v.18.
2. That burned with fire; darkness; tempest; a God to fear—Heb. 12:18b; Ex. 19:16-18.
3. The sound of a trumpet (a call by angles) who warn of sin, causing all to tremble—Heb. 12:19; cf. Ex 19:13,19; Gal. 3:19; Rev. 8:2,6, etc.
4. The voice of words—they that heard entreated that no more word should be spoken unto them—verse 19; Ex. 20:19-20. They feared His voice "lest we die."
5. For they could not endure that which was enjoined by God—verse 20. If they drew near God they would perish.
6. So fearful was the appearance that Moses said, "I tremble with fear"—verse 21. A mediator who himself was made to fear before God.
THE THRILLING PRESENT:
1. Unto Mount Zion (intangible)—verse 22.
2. Unto the city of the living God; unto the heavenly Jerusalem—Gal. 3:21-31; Heb. 12:22; a God who favors—1 Tim. 3:15; 1 John 3:1.
3. An innumerable host of angels—to the general assembly (a company of angels who are sent to serve)—verse 22b; Heb. 1:13-14.
4. The church of the firstborn—verse 23; 1 Pet. 2:9-11; 2 Thess. 2:13-14. They loved this voice for it is His call from darkness to light; a call to be His firstborne ones (James 1:18). These are enrolled in heaven—Phil. 4:3; Rev. 3:5; 13:8.
5. Unto God the judge of all, and to the spirits of just men made perfect—verse 23; Col. 1:21-12, 27-28. If we draw near to God, He will perfect us (James 4:8-10; Heb 13:20).
6. To Jesus the mediator of a new covenant, and to the blood of sprinkling that speaks better than that of Abel—verse 24; 7:22; 8:610; 9:15. A Mediator who prayed to be brought back near to God (John 17:1-5) so we could draw near to God with boldness (Heb. 4:14-16; 7:22-28; 1 John 3:21-24).
Jesus' superiority has been displayed in multiple ways in this book. It these verses the Hebrew writer seems to summarize the sublime relationship one sustains with the Savior as a prelude and proof-text for the proposition we'll see in verse 25 following: "See that you do not refuse Him who is speaking…"
In verse 18 we are reminded that God's presence was fearful and dark because of our sins. But because Jesus has died to atone for our sins we are drawing near to Zion the Temple where God dwells, and it is a beautiful place as contrasted to the scene at Mt. Sinai. This is the contrast depicted by the Hebrew writer. Mt. Sinai was a terrifying sight, burning like a volcano, dark with clouds, roaring with strong winds. Out of that and even worse came the trumpet blast and voice—such a fearful voice that the people begged Moses to ask God to speak through Moses and not out loud. No one not even animals were permitted even to touch the mountain. At the center of this contrast is that the holiness coming from Mt Zion is welcoming, cleansing and healing.
Here we need to be very careful not to make the mistake that many religious people make in this contrast between the law and the gospel. This false notion is that the Mosaic dispensation was about an exclusive sort of holiness and the new covenant is a matter of inclusiveness which simply lets everybody come as they are. Verses 12-17 shows us that the gospel does not include everyone regardless of faith. Indeed faith in God is demanded to become a part of God one true plan of salvation. The holy requirements of God under the law and the gospel are the same. The contrast is teaching us that by faith God has obtained through the sacrifice of Christ forgiveness of sins making the holiness of Mt. Zion open to those who by faith "draw near!"
Almost every feature of Zion described in verses 22-24 emphasizes the fact that those who live in this city are not those who have simply been told to come as they are, but those in whom the lavish grace of God has been granted with such cleansing, such transformation, that they now belong as a right—by sheer grace—within the holy city itself.
Angels in the city in which we have now come (verse 18) don't give the law, they celebrate the fact that what the law had not been able to do has been accomplished through the Son of God! The fact that inside the city dwell the "spirits"of righteous men who have "been made perfect" sums up the contrast and the sin-forgiving nature of this new covenant. Finally in verse 24 the mention of the "blood" which calls, not for vengeance as Abel's did (Genesis 4:10), but for the full pardon and cleansing which Hebrews has already described at some length in chapters 9 & 10. What a glorious picture.
And remember from verse 18 that we by faith (or the Hebrew believers) are already in a sense arrived at this heavenly city! You would not want to go back to the dark forbidding Mt. Sinai.
3. THE PERIL WE MUST AVOID (12:25-29).
The Hebrew writer has a habit of exalting God's greatness and then describing the gravity of our departing from Him. Now again, in this context, the superiority of Jesus' system is forcefully contrasted with Moses and the law given at Mt. Sinai (12:18-24), leaving it evident that we should not reject nor refuse this richly rewarding redemption that will remain and endure God's shaking.
God in this section will tell us that His plan is to remove everything transient, temporary, secondary and secondrate. This will take place when the present heaven and earth are shaken. This will leave that which is of the new creation, based on Jesus himself and his resurrection to shine out all the more brightly. Everyone who belongs to the new covenant is to be included.
However, this promise is not make in the form of a promise, but in the form of a warning because, remember, these Jewish Christians were contemplating escaping the persecution of fellowship with Christ by going back to the Jewish traditions and unfulfilled promises of the past.
A. THE DEMANDED RESPONSE (READ 12:25a). "SEE THAT YOU DO NOT REFUSE HIM WHO IS SPEAKING."
The key phrase here is the phrase "him who is speaking." These points us back to the giving of the first covenant at Mt. Sinai. The Children of Israel did not want to hear God speak. It was too fearful. It was too dreadful. The exhortation to the Hebrew Christians is that they had better see to it that they listen and learn, rather than reject and refuse, what Jesus says. The Jews feared God but did not listen to Him. The Hebrews and we are being told to listen to God, this time and heed carefully what Jesus has revealed to us.
B. THE DEVELOPED REASON FOR THE RESPONSE DEMANDED (READ 12:25b-29).
The jest of this section is summed up in the last two verses. Verses 25b-28 tell us of perils to ponder—these are the things that can happen if we fail to heed the warning, then verses 28-29 give us the possibilities to pursue!
Verse 28 tells us to be grateful for receiving a kingdom which will endure God's shaking. When God is finished shaking His creation (which by the way is what the word "shaken" implies). The shaking experienced by the Jews at Mt. Sinai was only a foreshadow of the shaking that is to come. We might note that this kingdom is not a millennial kingdom which will one day be given to us. It is a present kingdom which the Hebrews were being given by God were they to remain faithful. The tense of the verb indicate it is continual action—people are continuing to be added to this kingdom even today.
Verse 29 reminds us by describing God as a "consuming fire" that all that smoke and thundering and dangerous sounding noise experienced by the Jews at Mt. Sinai was witness to God's consuming nature for all who fall into His hands without the benefit of Jesus' atoning blood. The Hebrew writer has come full circle. He has carefully depicted Jesus as greater than Moses, greater than angels, greater as a priest and king. And he has shown God the Father not as an indulgent parent, someone always there to comfort, never wanting to make too much of a fuss. But the true God is not tame, nor does he spoil his children. He is like a fire: the holiness of God, emphasized through the Temple rituals, is not undermined by the fact that, in the new covenant, his people are invited into His presence in a new way through faith. To think like that would be to make a radical mistake.
God has not stopped being holy. God has not changed a bit. It is , rather, that Jesus has opened up a new and living way, through the "curtain" and right up to God Himself. Only when we see and appreciate the holiness of God will we appreciate the significance of what Jesus has achieved for us.
The fearful God depicted in Mt. Sinai is the same God who through the cross has brought His plan to save man to a triumphant conclusion. He is the same God, and to slight His working is very unwise.
Going back to verse 28 again we are be grateful to God for all He has done and we are to render to Him "acceptable worship (service)." The word "worship" here is the word latreuo in the Greek. It is a word sometimes translated worship, and sometimes translated service. We are being exhorted to offer religious service or homage to worship—to perform sacred services, to offer gifts, to worship God in the observance of the rites instituted for His worship. The appropriate response to God's plan and working to save man is gratitude and worship! When you and I bow down before the living God and with our lives thank Him from the bottom of our hearts for what He has done and for what He has promised to do for us giving us an eternal future; it is as though you and I are priests in the Temple, offering the purest, most unblemished sacrifice. This is the holy privilege of being a follower of Jesus Christ our Lord, and it is the life this firey God calls us to.
In short the Hebrew writer has finished his warning to the Hebrews. If they continue to the point of defying God's word—they forfeit any chance to be apart of the wonderful kingdom of God which is the only vehicle upon which we can endure God's final judgment or shaking. Great are the possibilities for them in Christ, but great is the destruction for them if they reject Christ and His word.
Questions:
1. What are some warnings that you have been grateful for? Why?
2. Why is holiness important? (12:14)
3. What kinds of things do Christians need to watch out for? Why? (12:15-17, 25-27)
4. How should we worship God? Why? (12:28-29)
5. What roadblocks make it difficult for us in pursuing holiness?
6. What does it mean to worship God with reverence and awe?
7. Make a contrast between Mt. Sinai and Zion…
8. Who are the "spirits of just men made perfect" (v.23)?
9. What should our response be to the Kingdom of Christ (12:28-29)?
SUNSET'S STUDY GUIDE:
1. Discipline is to keep one from falling (vs. 14-17).
a. Warning (vs. 14-15).
b. Example (vs. 16-17).
III. THE DIGNITY OF THE CHRISTIAN POSITION (12:18-29).
A. Read Hebrews 12:18-29; Exodus 19 and Haggai 2:4-6.
B. The contrast between SINAI and ZION (vs. 18-24).
1. The picture of Mt. Sinai (vs. 18-21; cf. Exodus 19).
a. Physical (vs. 18-19).
b. Not to be touched—not even by an animal (v.20).
c. Moses approached fearfully even thought he had been invited to draw near (v.21).
2. The picture of Mt. Zion (vs. 22-24).
a. For the Jew, Mt. Zion was the most holy place on the earth.
b. The residents of Mt. Zion:
1) Innumerable hosts of angels.
2) General assembly and church of the firstborn, who are enrolled in heaven.
3) God, the judge of all.
4) Spirits of just men made perfect.
5) Jesus, the mediator of a new covenant.
C. The "spirits of just men made perfect" (v.23) refers to ALL OF THE RIGHTEOUS WHO LIVED BEFORE THE TIME OF CHRIST (cf. 11:39-40).
D. The "blood of sprinkling" (v.24) is the BLOOD of CHRIST (cf. 9:14). The Blood of Jesus speaks better than the blood of Abel (v.24) because CHRIST'S BLOOD IS REDEMPTIVE.
E. The speaker in verse 25 is the Son through whom God speaks (1:1-2).
F. The "things that are shaken" (vs. 26-27) of Haggai's prophecy (Haggai 2:4-6) refers to the removing of the Jewish commonwealth which occurred at the destruction of Jerusalem in 70 A.D.
G. The "Kingdom of Christ" (vs. 28-29).
1. Was present as the writer wrote—"having received."
2. Cannot be shaken.
3. Response: Exercise your privilege—"let us have grace whereby we may offer service (worship) well pleasing to God with reverence and awe."
4. Warning: DON'T NEGLECT YOUR PRIVILEGE, FOR OUR GOD IS A CONSUMING FIRE.
The words in chapter 12 represent a challenge to Christian living. Rate the following phrases concerning your spiritual maturity:
____Running with perseverance
____Eyes fixed on Jesus
____Steadfast, not growing weary nor losing heart
____Struggling against sin
____Leading a disciplined life
____Having the right attitude toward hardships
____Living in peace with all men
____Being holy
____Faithfulness in listening to God (Bible Study)
____Being thankful and worshiping God
HEBREWS
THE MANIFESTATIONS OF SAVING FAITH (13:1-25)
LESSON TWENTY-TWO by Milt Langston
PART THREE JESUS AS A SUPERIOR WAY TO GOD
10:19-13:25
OUTLINE OF THE BOOK TO THIS POINT
I. JESUS IS A SUPERIOR PERSON (1:1-2:18).
II. JESUS IS A SUPERIOR PRIEST (3:1-10:18).
III. JESUS PROVIDES A SUPERIOR WAY TO GOD (10:19-3:25).
A. THE CONFICENCE OF SAVING FAITH (10:19-39).
B. AN EXPLANATION OF SAVING FAITH (11:1-3).
C. EXAMPLES OF SAVING FAITH (11:4-40).
D. THE ENDURANCE OF SAVING FAITH (12:1-13).
E. MANIFESTATIONS OF SAVING FAITH (12:14-13:21)
F. CLOSING EXHORTATIONS (13:22-25).
I. THE CONFIDENCE OF FAITH IN CHRIST'S SACRIFICE (10:19-39).
II. AN EXPLANATION OF SAVING FAITH (11:1-3).
III. THE DEMONSTRATION OF SAVING FAITH (11:4-40).
IV. THE ENDURANCE OF SAVING FAITH (12:1-13).
V. MANIFESTATIONS OF SAVING FAITH (12:14-13:21)
A. WARNING #5: DEFYING THE WORD NULLIFYING SAVING FAITH (12:14-29).
B. FAITH MANIFESTS ITSELF IN LOVING CHURCHES (READ 13:1).
We've entitled this section The Manifestation of Saving Faith. In other words the way faith shows in the lives of believers. I've seen this section referred to as The Way of Love. Christian life is a changed life. God's fellowship through the Holy Spirit changes a believer moving him back from rebellion to a practical life that pleases God and honors His will through the Lordship of Jesus as our new leader in life.
There is a theme that runs through this section. The Hebrew writer will say over and over again, remember, remember, remember—don't forget—let us, let us, let us. It is obvious an exhortation to Christian living which a new life (as per Paul) lived in faith. Christians are believers, and faith manifests itself in our life.
The first words out of the box sets the tone for this whole section: "Let brotherly love continue…" ESV, The NASB reads, "Let love of the brethren continue." I like the NIV it reads, "Keep on loving each other as brothers." So the title The Way of Love is an apt title for this section. John the apostle said, " We know that we have passed out of death into life, because we love the brothers. Whoever does not love abides in death." (1 John 3:14).
Someone penned the following words:
To dwell above, with saints in love
That will indeed be glory;
To dwell below, with saints we know—
Well, that's another story!
I was talking today to Linda Fluitt about some of the squabbles we hear about over at the School (SACA). But there are also squabbles in most families even in the church. But like sibling rivalries in our homes, there needs to be a spiritual love. I know that in our family you might gripe about your brother, but you would defend him if someone else complained about him. Christian love needs to be cultivated. By faith we recognize that the needs of others in our spiritual family are important to all of us. It make passages like those in Philippians chapter 2 where we are told to consider the needs of others as more important than our own needs. This is what Jesus did, and remember what He said. He said, "A new commandment I give to you, that you love one another: just as I have loved you, you also are to love one another. 35By this all people will know that you are my disciples, if you have love for one another."
Our love is to be like His love—sacrificing, giving. And this kind of love for each other is the gospel to the world that we are Christians—that we are His disciples! Love is a manifestation of a Christian as it is of faith.
C. FAITH MANIFESTS ITSELF IN HOSPITALITY (READ 13:2-3).
1. CHRISTIANS ARE URGED TO SHOW HOSPITALITY TO STRANGERS (13:2).
This was impressed upon us when we lived in Africa. It was a cultural requirement to show hospitality to strangers. I was always impressed at the hospitality shown to me when I was in a strange home. Another situation presented itself to us while there. There were a great many men who would come by our house in town asking for food because they were hungry. Judy and I determined to show them hospitality. We never turned anyone away, but fixed a large cup of tea with sugar in it and bread with butter on it. If I was home I would visit with them as they ate. They were always grateful accepting the hospitality as if it were normal as it was in their culture. We never had people who abused this hospitality. I've noticed that people asking for food here in the 'States are a whole lot different from the people who asked for food there.
I've always wondered if we entertained angels not being aware of it. The exhortation is that if we show hospitality to strangers God promises will bring guests into our lives which will be a thing of honor to us. We have the example of Abraham in Genesis 18 and Lot in Genesis 19. Both entertained angels.
2. CHRISTIANS ARE URGED TO SHOW HOSPITALITY TO THOSE IN PRISON AND THOSE WHO HAVE BEEN MISTREATED (13:5).
Just as Christians are to love strangers and not shun them, we are also told to love those who are suffering. Some suggest that in Hebrews when this book was written this might have been an exhortation to show kindness to brothers and sisters who had fallen victim to the persecution which was coming upon the church from Rome which was punishing Christians for not worshipping Caesar as a god. If this was the case it was an exhortation not to sit on the fence concerning our loyalty to Christ. This is an apt exhortation to us today as Christian values are being demeaned and holding to them labels us a bigoted.
There is a fellowship of suffering being suggested here. "Remember those in prison as though in prison with them." Jesus suffered because of sin. Most suffering suffered by anyone in this life is because of sin. If there was no sin there would be no suffering. Because God placed us into the body of Christ when one member hurts every member hurts. Our faith in Jesus will manifest itself in our hospitality and service to others around us who are hurting.
D. FAITH MANIFESTS ITSELF IN PURE MARRIAGES (READ 13:4).
Marriage is a sanctified place where the most beautiful part of human expression of love for two people can be kept safe. It sanctifies these God given urges by mutual honor and protection. Sexual expression outside of this protection dishonors God's creation and will be judged by God. Marriage is to be honored. Celibacy practiced as holiness I believe dishonors marriage. Of course adultery and fornication dishonors marriage, but marriage is honorable.
There was a time that marriage was dishonored by Gnostic teachers who started the Catholic Church. They taught that any fleshly pleasure was unholy, and Christianity (false teaching) labeled the physical part of marriage as being unholy and shameful. This passage forever dispels this myth. "Let marriage be held in honor by all!" is the ringing exhortation of this verse! And "let the marriage bed be undefiled" lets us know that whatever occurs in the marriage bed is honorable and it is holy. Marriage makes it holy. Marriage is a covenant between two people. It sanctifies the most intimae form of the communication of love between a man and a woman!
Marriage is the most beautiful part of our society. It should not surprise us that Hollywood and the world constantly attacks it and will not portray it in a positive light. Unrestrained sexual expression floods our society today. It is a lie and it builds up the wrath of God against all who fall victim to it. The saving faith of Christianity will hold up marriage as honorable and beautiful
E. FAITH MANIFESTS ITSELF IN CONTENTED CONFIDENCE IN GOD'S POWER (READ 13:5).
Faith in God will illuminate itself in the lives of Christians in the form of contentment. Basic to faith in God is the fact that God is the ultimate provider. He feeds the birds and the beasts. He sends springtime and harvest and the refreshing rains that cause things to grow. Christians even know that our temporal employment and the ability to work are provided for us by God.
This was a constant teaching by Jesus. He said, "Are not two sparrows sold for a penny? And not one of them will fall to the ground apart from your Father" (Matthew 10:29). "Are not five sparrows sold for two pennies? And not one of them is forgotten before God. 7Why, even the hairs of your head are all numbered. Fear not; you are of more value than many sparrows" (Luke 12:6-7). Did you notice that two sparrows are sold for a penny, and at a bargain five are sold for two pennies? What happened to that one sparrow worth nothing? Even its affairs are God's business.
The faith of Christians trusts God with contentment and that faith is a light to those who are afraid without God.
F. FAITH MANIFESTS ITSELF IN COURAGE TO TRUST GOD (READ 13:6).
The old ASV reads, "So we with good courage can say…" The ESV reads, "So we can confidently say…" Then the Hebrew writer uses David's words from various Psalms to say, "The Lord is my helper; I will not fear; what can man do to me?" The word courage or confidence comes from the Greek word θαρρέω (tharreo) which can mean confidence, courage or boldness, but Thayer says the word's deeper meaning is confidence born of faith.
Faith gives us confidence in God and in His protection even in the face of persecution. It is not a boldness born of pride like Peter's when he told Jesus that he would not depart from Him even if everyone else did. We know what Peter did. This confidence is from our faith and will be present even when we fear and quake to express it. The book of Hebrews was written to Christians who were about to be tested by the governmental power of Rome. Rome's persecution weeded out those who trusted in God to the point of suffering and those who would not stand in their faith against the terrible persecution which was coming.
G. FAITH MANIFESTS ITSELF IN CONSIDERATION OF OUR SPIRITUAL LEADERS (READ 13:7).
Faith will cause Christians to be considerate with their spiritual leaders—elders—deacons— preachers. Faith causes Christians to respect those whom God entrusts with positions of leadership among His people. The KJV describes them as those who "rule" over you. The word used by the Holy Spirit in the Greek is ἡγέομαι (hegeomai). You can translate this word as "1. to lead, i.e. a. to go before; b. to be a leader; to rule, command; to have authority over; in the N.T….leading as respects influence, controlling in counsel…Acts 15:22… of the persons over whom one rules, so of the overseers or leaders of Christian churches: Hebrews 13:7, 17, 25" (Thayer, p. 276). The Hebrew writer describes these leaders as "those who spoke to you the word of God." These leaders have brought the message of salvation to us.
Then the Hebrew writer tells us that in the exercise of our faith we are to consider the way of life of our leaders. They are to be an example to the rest of the flock. Then we are to imitate their faith. Faithful leadership in the church results in faithful membership in the church which will insure that there will be faithful leaders coming up to replace the leaders as God calls them home.
Men who become elders learned about the eldership from observing their elders, deacons and preachers as their faith was being developed and matured in Christ.
A CLOSER LOOK AT THE SCRIPTURE:
I. AN EXHORTATION TO REMEMBRANCE AS TO GOOD WORKS AMONG MANY (13:1-7).
A. Affection for brethren—"Let brotherly love continue" (13:1; John 13:24025; 1 John 3:10-11, 16-19).
B. Affection for strangers—"Forget not to show love ('entertain'—KJV) unto strangers" (13:2).
C. Alert to the captive—"Remember them that are in bonds, as bound with them" (13:3; cf. 10:32, 34; 2 Timothy 4:16-18).
D. Akin to the ill-treated——"Remember…them that are ill-treated, as being yourselves also in the body" (13:3b; 1 Corinthians 12:14-26; 2 Corinthians 11:29; Philippians 2:1-5).
E. Adorn the marriage relationship—"Let marriage be had in honor among all, and let the bed be undefiled" (13:4a; cf Genesis 1:27-28, 31; Genesis 2:18-25; Matthew 19:4-7).
F. Adulterer warned—"For fornicators and adulterers God will judge" 913:4b).
G. Avoid covetousness and materialism (13:5).
H. Assurance from the Almighty (13:6).
1. Courage
2. Co-worker
3. Calm
I. Adjust according to approved men (13:7). Whether we ever know who these men were, we know what they were. In knowing this we have a charge and challenge.
1. Their position
2. Their practice
3. Their pattern
H. FAITH MANIFESTS ITSELF IN MIRRORING CHRIST'S CONSISTENCY (READ 13:8).
No one knows our trials and tribulation that come from life better than Jesus. He understands our problems and temptations. Yet He is our example for Christian living. When things were going well and many were following Jesus. When His popularity was rising He trusted the Father and set about doing the Father's will. Later when His popularity began to wane and less and less came to hear Him, and as the opposition from the Jewish leaders began to increase day by day; Jesus continued to devote Himself to doing the Father's will. He trusted the Father. Even when His world came apart—when His disciples scattered—when Judas betrayed Him—when Peter denied Him—when on the cross He was separated from the Father He consistently set about doing the Father's will trusting the Father.
This is the type of consistency God wants from us—total faith—total trust! We will have trouble doing the Father's will the way Jesus did, but we can trust God. God rewards such faith with total forgiveness and help to do the Father's will which has become our goal and desire.
F. FAITH MANIFESTS ITSELF IN CONVICTION TO THE WORD (READ 13:9).
Verse 8 speaks of the consistency of faith, but verse 9 speaks of the conviction of faith. The central person in this system of faith is Jesus as we saw in verse 8. Now, Christians are being exhorted not to be led from Jesus by "diverse and strange teachings." Consistency is born of faith in Jesus.
These diverse and strange teachings are any teaching which leads one from Jesus, or any teaching that seeks to minimize Jesus' authority as Lord. It could refer to Jewish traditions because of the reference to food which follows. Can you think of any teaching which might lead a believer from Jesus or from faith in Jesus? Can our opinions lead us from Jesus? Can our traditions lead us from Jesus? Wisdom and great care is to be given in determining what leads away from Jesus because the Lordship of Jesus is absolute.
"It is good for the heart to be strengthened by grace." From our study of Romans chapters 9-11 we learn that the Jews would not let go of trying to obtain righteousness through the law. Salvation by grace ran them up a tree. In the end many Jews rejected the righteousness which comes by faith in Jesus because they would not let go of the law. I believe this passage refers to that. Grace insures real righteousness which comes from the work of Jesus who is the center of our faith system. This knowledge will refresh the heart and remove the dread of failure replacing it with an assurance of salvation in Christ.
I know that is what is being discussed because of what is said next: "…not by foods, which have not benefited those devoted to them." We're talking about kosher food restrictions from the law. These restrictions did not strengthen the Jews nor did it provide comfort to the heart by providing righteousness. It all goes back to Jesus who provided what we need. He does not change!
This can apply to us as well. How much devotion do we give to eating which benefits the flesh? Is not the spiritual food provided by Christ of much more value?
I. FAITH MANIFESTS ITSELF IN COMMUNION WITH CHRIST IN SACRIFICIAL LIVING (READ 13:10-14).
Verse 10 implies our communion service in the church—the Lord's Supper. By faith Christians share with Jesus' sacrifice by eating the bread and drinking the fruit of the vine which represents the body and blood of Christ. Under the law the Jews were not allowed to share in this food. Priests could share in certain sacrifices, but never in the sacrifice of atonement. It was carried outside the camp and burned (v.11).
Now reading verses 12, 13 & 14 we get the following message. Jesus our atoning sacrifice (our altar from verse 10) took place outside of Jerusalem—outside of the city. Verse 13 exhorts us to have the faith to go with Christ and share His reproach. Verse 14 reminds the Jew that Jerusalem is not their city anymore— the city of the Saints. Our city is that city not made with hands—in heaven! So, the Hebrew writer is making a bold appeal to the Jewish Christians to have enough faith to suffer the shame and rejection Jesus suffered. That would include being kicked out of the Jewish traditions—being expelled from Jerusalem. This was a heavy cost to the Jews. They are being asked to give up their former religion completely.
But we can apply these same principles to ourselves who are not Jews by nature. How do we share with Jesus in His rejection and reproach today?
J. FAITH MANIFESTS ITSELF IN SACRIFICIAL CONSECRATION THROUGH PRAISE AND SERVICE (READ 13:15-16).
One of the manifestations which are seen in the life of one who truly believes is a consecration of that person's life which issues in praise and service to God. When I think of consecration I think of Romans 12:1-2 where Paul says, " I appeal to you therefore, brothers, by the mercies of God, to present your bodies as a living sacrifice, holy and acceptable to God, which is your spiritual worship. Do not be conformed to this world, but be transformed by the renewal of your mind, that by testing you may discern what is the will of God, what is good and acceptable and perfect."
We could speak a great deal with this passage found in Romans 12, but this response to God's love in a faith that issues in praise and service is something which our text states pleases God when it says, "… for such sacrifices are pleasing to God."
Romans 12:1 states that you and I are the living sacrifices which pleases God. Our text here in Hebrews 13:15-16 is almost the same. Romans 12:1 says that our giving of ourselves totally to God in our "spiritual worship." Some translations say it is our "reasonable service." Both are reasonable translations. The word in the Greek from which we get "service" is a word sometimes translated as "service" or "worship."
Worship comes in two forms. One of the forms comes from the word proskeneo which means literally to "kiss towards." The other is letreuo which means "to serve."(this is the word used in Romans 12:1). So worship to God is the praise type of worship which says good things about the one we are praising. This comes from the word translated "to kiss towards." And worship is also serving God with acts of service for Him which comes from the word translated "to serve."
Although the two words for worship are not in our text, the type of consecration being demonstrated by our faith includes both these types of worship. Verse 15 says we are to continually offer up a sacrifice of praise which is referred to as the "fruit of the lips." This is worship in praise. And the words in our songs of praise acknowledge God's name. It is an act of confession. Did you notice that this worship is not a sacrifice of music (from a piano, organ or guitar) but the "fruit of the lips"—singing. The other type of worship is described in verse 16 which is worship in service to God. It is service to others and sharing with others.
We do not have to say that our acts of service are never intended as an inducement to God to have mercy on us, but it is an act of gratitude to God for His Son and His righteousness or for the mercy God has already shown. Our worship to God in service pleases Him, and that is our desire. It also fulfills God's desire to make us a blessing to others.
K. FAITH MANIFESTS ITSELF IN AN OBEDIENT CONCERN FOR OUR LEADERS (13:17-19).
As the Hebrew writer is about to end his epistle he pauses here to exhort the Hebrew Christians to honor the leaders among them and to pray for the writer whom they obviously knew and who was quite possibly an elder among them.
1. THE MINISTRY OF THE ELDERS (READ 13:17).
"Obey your leaders and submit to them…" When he tells the brethren to obey their leaders he is asking them to recognize their authority over them as well as to honor them. Christianity is not a democracy in which the majority rules, nor is it anarchy where everyone does what pleases themselves. It is a theocracy in which Jesus rules His church.
The authority a church leader has is Christ's authority which is channeled through them. For example if the elders have given us an assignment—a bible class—a combined gospel effort to save sinners—or whatever, it is an assignment from Christ. And an elder or other church leader has no authority to make doctrine. Their authority is in implementing the stated will of God in Jesus Christ, and an elder or leader who runs rough shod over the wishes or desires of the whole congregation is asking for trouble. The wishes (in matters of choice) of the whole is really the wishes of the church, and wise elders will determine what that desire is, and when they choose what we will be doing they place the authority of Christ of the thing being done.
The church is told to submit and obey our leaders because "they are keeping watch over your souls, as those who will have to give an account." This reminds leaders that they will be held accountable for their leadership. As we have already said in the last paragraph our leaders are not to lord it over those who are told to submit to them. Elders, deacons, preachers, teachers are all servants first in their leadership. We are all under the authority of Jesus "the great shepherd of the sheep, by the blood of the eternal covenant!" (13:20).
There is a call for common sense here also. Since elders and leaders are held to a higher standard in our behalf, it would be foolish to hinder their work. So the Hebrew writer says, "Let them do this with joy and not with groaning, for that would be of no advantage to you." If our elders are going to give an account for our soul we should make their service easier because it is to our advantage. Never make it hard for them because they are serving for our salvation's sake! The reactions of our elders are two fold. They can react with joy our with sorrow. We are being exhorted to bring our leaders joy and not sorrow.
A CLOSER LOOK AT THE SCRIPTURE:
II. AN EXHORTATION TO REMEMBRANCE AS TO A RIGHT RELATIONSHIP WITH THE REDEEMER (13:8-17).
A. Strengthened to stand (13:8-9).
1. The person—Christ is the foundation stone on which redeemed souls rest (v.8; 1 Corinthians 3:10).
2. The plan—"for it is good that the heart be established by grace" (v.9; Titus 2:11-14; Ephesians 2:4-10; Romans 5:1-2).
B. Sanctified to serve (13:10-12). The point in this section relates back to verse 9 and opens the door (as to incentives) for the suggestions in verses 13-16. The key word is "grace" for the heart in contrast to a fleshly visible sacrifice pattern of yesterday. Our hearts are to be established by grace, not meats. Meats do not profit (v.9).
C. Sharing and seeking for security (13:13-14; 11:9-16; Philippians 3:20-21).
1. The course—"Let us…go forth unto him" (cf. John 14:6; Matthew 11:2829; Acts 4:13).
2. The condition—"…without the camp, bearing his reproach." Christ was cast aside by the Jews. He was cast outside of Jerusalem as a token of His being rejected by all that Jerusalem represented (cf. Matthew 21:33-45; 27:22-26; John 19:17-18; Acts 7:51-53).
3. The cause—"for we have not here an abiding city, but we seek after the city which is to come" (v.14; 11:9-10; Galatians 4:21-31).
D. Sacrifices offered through speech (13:15).
E. Sacrifices offered through serving (13:16).
F. Submitting our souls (13:17).
2. THE REQUEST FOR THE HEBREW BROTHER'S PRAYERS (READ 13:18-19).
Having almost finished this epistle having exposed the horrors of apostasy and revealed the glories of a future in Christ the Hebrew writer asks for their prayers. They obviously knew whoever wrote this epistle. Not only did they know him, but they understood his circumstances.
He asks stating the clearness of his conscience. You only ask people that love you and are close to you to pray for you. He wants to be restored to them. It could be that he was away. Was he in prison? We don't know.
A CLOSER LOOK AT THE SCRIPTURE:
III. AN EXHORTATION TO REMEMBERANCE AS TO PRAYER AND PURE PRACTICES AMONG BRETHREN (13:18-19). This part is primarily personal. Yet, entwined within this Christian personality are several of the active principles for which he has pleaded in this epistle.
A. Dependent—prayer; "Pray for us" (13:18; cf. Hebrews 4:16).
B. Devoted—pure practices: "…we have a good conscience, desiring to live honorably in all things. And I exhort you the more exceedingly to do this…" (13:18-19).
1. Cleansed
2. Consecrated
3. Consistent
4. Concerned
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Commission on Domestic & Sexual Violence
STANDARDS OF PRACTICE
for the Supervision of Domestic & Sexual Violence Attorneys
This project was supported by Grant No. 2017-TA-AX-K020 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.
DISCLAIMER: The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the policy of the American Bar Association.
Table of Contents
I. Preface
The ABA Commission on Domestic & Sexual Violence (hereinafter "Commission") would like to extend our deepest gratitude to all those who informed the development of these Standards of Practice for the Supervision of Domestic & Sexual Violence Attorneys (hereinafter "Standards"). Thank you to the Department of Justice, Office on Violence Against Women, who supported this project from conceptualization through final publication. The Commission would also like to thank the twenty attorneys who comprised the Steering Committee that helped to draft these standards:
II. Introduction
The Commission provides national training and technical assistance regarding civil legal practice on behalf of victims of gender-based violence. These Standards arise from a trend that the Commission has noticed in recent years: attorneys representing domestic and sexual violence (hereinafter "DSV") victims often do not have adequate supervision. The Commission sees this problem manifest itself generally in two situations: first, attorneys in legal settings such as firms, legal aid or legal services units whose supervisors are not trained in supervision or given appropriate time to properly supervise, and second, attorneys in non-legal settings, such as victim services programs, state coalitions, counseling or shelter programs who are the only attorney on staff and who therefore lack proper legal supervision and face other ethical dilemmas. One notable request for help of many was from an attorney who had never met or spoken with the supervisor named in the grant proposal funding her position. Another shocking request for guidance of many was from an attorney whose non-attorney Executive Director was demanding to see her client files.
In response to these issues and this trend, the Commission decided to host a Steering Committee Meeting to Develop Best Practices for Supervision of Domestic & Sexual Violence Attorneys (hereinafter "Steering Committee Meeting"). This Steering Committee convened in November 2018 for two days, and was comprised of twenty DSV attorneys from across the country who work in both traditional legal and non-legal settings. When selecting members for the Steering Committee, the Commission strove for geographic and demographic diversity. All Steering Committee members had experience supervising attorneys and being supervised within this field.
These Standards were borne from the Steering Committee Meeting and have been peer reviewed by additional attorneys prior to publication. They are intended to serve as best practice guidelines for the supervision of DSV attorneys in both legal and non-legal settings. The Standards are divided into three parts: Foundational Principles, Agency Responsibilities and Standards, and Supervisor Responsibilities and Standards.
The Foundational Principles outline some of the basic values of supervision which emerged from the Steering Committee Meeting, such as employee retention and a commitment to diversity. These are the ideologies through which all Standards and their accompanying comments should be read and interpreted.
Agency Responsibilities and Standards is directed toward organizations and organizational executive leadership. These Standards provide guidance to organizations on important duties that they must perform before, during, and after hiring attorney supervisors for their office.
Supervisor Responsibilities and Standards is directed toward individual attorney supervisors. These Standards outline best practices for supervisors to utilize when supervising DSV attorneys.
III. Foundational Principles
A. Agencies must recognize that providing meaningful supervision takes time and preparation. Agencies must include the act of supervision as a professional activity in supervisors' work plans.
B. As a foundation for providing high quality legal services to survivors, agencies must make a commitment to retaining employees.
C. The responsibility to retain employees includes developing timed and measurable goals for increasing staff benefits, hiring, and promotion packages, and implementing formal plans to address, prevent, and remedy both vicarious and direct work-related trauma.
D. Individualized self-care should be institutionalized, including provision of up-todate tools, training, and resources, as well as building an office culture that embraces self-care.
E. Supervisors should be trained about how to recognize vicarious trauma, and should remain aware of each supervisee's caseload and cumulative vacation days.
F. Agencies must make a commitment to diversity and equity at all levels of the organization, including the Board of Directors.
G. Agencies must make significant financial commitments and prioritize organizational structures to reduce or eliminate barriers to hiring, retention, or promotion, consistent with principles of diversity, equity, and inclusion.
H. Supervisors must explicitly and actively acknowledge, address, and work to mitigate privilege and oppression in their work, their agency, and in relationship to their staff.
A. Agencies must recognize that providing meaningful supervision takes time and preparation. Agencies must include the act of supervision as a professional activity in supervisors' work plans.
Comment:
Supervision itself takes time; supervisory activities include sitting in on client intakes, attending hearings, reviewing employee files, and conducting employee reviews and check-ins. As such, supervision should be included as one of the professional activities in a work plan for supervisors. These responsibilities take more time when a supervisor has more supervisees assigned to them. Having a written work plan will help protect both supervisors and their supervisees from being overextended by upper management.
B. As a foundation for providing high quality legal services to survivors, agencies must make a commitment to retaining employees.
Comment:
Turnover is an endemic problem among legal staff at DSV agencies, and it is critical to have policies and an office culture that strive to retain valued employees and the experience, expertise, and maturity they bring to the work. One reason for turnover among staff is a failure to respond appropriately to vicarious trauma and burnout from the difficult nature of the work. It is important for organizations to encourage meaningful self-care for all staff and to support their employees who are experiencing vicarious trauma. Some employers have started vicarious trauma support groups, where members can speak confidentially about frustrations with their work. Employers must ensure that supervisors are well-versed in the effects of vicarious trauma and recognize the signs when they develop in their supervisees. Possible policies to slow the onset of vicarious trauma include banning emails after the close of business or reserving email phone privileges for senior staff only. 1
C. The responsibility to retain employees includes developing timed and measurable goals for increasing staff benefits, hiring, and promotion packages, and implementing formal plans to address, prevent, and remedy both vicarious and direct work-related trauma.
Comment:
In addition to turnover due to staff burnout, many legal staff are forced to leave their jobs because of inadequate compensation. Many attorneys carry large amounts of student debt which require high monthly payments. Where possible, organizations should include salary increases in grant applications so attorneys can be more appropriately compensated. Where it is not possible to increase staff salary, there are numerous other ways to compensate staff for their work with an aim to retain them. Many offices have implemented flex time policies for employees to take time off when necessary, outside of vacation or sick days, or to structure their work hours around both client and family demands. This can also be helpful to slow or prevent vicarious trauma and burnout. Offices are also giving employees the opportunity to regularly work from home. This demonstrates that the supervisee is valued, and goes a long way toward establishing trust between the employee and the employer. Other important benefits include healthcare packages with comprehensive mental health coverage and 401(k) or 403(b) matching, as well as meaningful professional development opportunities, so employees see that the overall value of their compensation is higher than their salary alone.
D. Individualized self-care should be institutionalized, including provision of up-to-date tools, training, and resources, as well as building an office culture that embraces self-care.
Comment:
One concern raised by the Steering Committee was the presence of "martyr culture" within many legal organizations. In this context, the Commission defines "martyr culture" as a professional environment which encourages unhealthy work habits, and where employees feel the need to sacrifice their personal needs for the benefit of clients or the greater organization. While on its face, agencies may believe that having "martyr" employees will be beneficial to client outcomes, or to their grant deliverables, unfortunately the opposite is often true. The quality of work that may arise in this environment is likely to be lower than work produced by employees practicing healthy work habits. Additionally, while short-term goals may be met in an office that maintains a martyr culture, it is simply unsustainable for the long term, as staff often end up leaving the agency, exhausted, embittered, or too traumatized to continue. Staff who remain will almost certainly provide a lower standard of care to their clients. In this difficult line of work, where attorneys are likely to experience vicarious trauma through their clients, it is essential that martyr culture be dismantled and replaced with institutionalized self-care for all staff. In other words, self-care should not be an afterthought;
t
1 For resources on dealing with vicarious trauma, including an organization blueprint and leadership talking points, see U.S. Dep' of Just., Off. for Victims of Crime, Vicarious Trauma Toolkit, available at https://vtt.ovc.ojp.gov (last visited May 13, 2019).
rather, legal agencies should provide opportunities and resources for employees to engage in self-care.
Self-care is a broad concept and can look very different for different people. The Oxford Dictionary defines "self-care" as "the practice of taking action to preserve or improve one's own health." 2 For some, self-care may mean taking a ten-minute walk around the office every afternoon to get fresh air. For others, self-care may mean only answering the phone between certain hours. Agencies should not only permit but encourage each individual's self-care routines, so long as they do not make service delivery impossible or unethical.
E. Supervisors should be trained about how to recognize vicarious trauma, and should remain aware of each supervisee's caseload and cumulative vacation days.
Comment:
Supervisors must be trained on recognizing trauma and its effects in their supervisees. More specifically, supervisors should remain aware of each supervisee's caseload and unused paid time off to ensure that they are not overloaded, and are taking advantage of breaks from work. Often, supervisors themselves have difficulty using their paid time off and are prone to some of the bad habits discussed above. It is essential for supervisors to model appropriate work hours and vacation habits, in addition to other self-care practices, for the rest of the staff. Only when leadership begins to engage in healthy work habits will non-supervisory staff feel fully comfortable practicing self-care.
F. Agencies must make a commitment to diversity and equity at all levels of the organization, including the Board of Directors.
Comment:
Organizational diversity is important in all workplaces, but it is critical in offices that house DSV attorneys. Because DSV attorneys represent a diverse array of clients, attorneys and others in their organization must reflect that same diversity. Only by featuring a broad spectrum of experiences and opinions will organizations provide the best representation to DSV survivors. This diversity is important at all levels, from entry-level staff through the Executive Director and the Board of Directors. There must be organizational commitment to the guiding principle of diversity, and resources must be directed toward this goal. The American Bar Association has adopted a policy which "urges all providers of legal services, including law firms and corporations, to expand and create opportunities at all levels of responsibility for diverse attorneys and urges clients to assist in the facilitation of opportunities for diverse attorneys, and to direct a greater percentage of the legal services they purchase, both currently and in the future, to diverse attorneys." 3 As a basic matter, agencies must have nondiscrimination policies in place, and must ensure that staff are aware of the policies. Agencies must also develop inclusive policies and practices. Some agencies may find it helpful to develop a diversity committee whose purpose is to educate staff and guide leadership on matters of diversity, equity, and inclusion. Where an agency chooses to develop a diversity committee, the committee should be funded and should be held accountable for its actions in order to be effective.
2 Self-care, English Oxford Living Dictionaries, https://en.oxforddictionaries.com/definition/self-care (last visited May 13, 2019). 3 A.B.A., Policy and Procedures Handbook 2018–2019, at 16A113, available at https://www.americanbar.org/content/dam/aba/ad-
ministrative/board_of_governors/2018_2019_greenbook_april_18_2019.pdf (last visited May 13, 2019).
G. Agencies must make significant financial commitments and prioritize organizational structures to reduce or eliminate barriers to hiring, retention, or promotion, consistent with principles of diversity, equity, and inclusion.
Comment:
It is important for hiring staff to understand implicit bias, as bias often subconsciously plays a role in the hiring of new staff. To educate hiring staff about implicit bias, it may be helpful to have each member of a hiring panel take an Implicit-Association Test through Harvard University's Project Implicit. 4 These tests often reveal the unconscious biases that each person holds and can help hiring staff be conscious to avoid bias in the interview and hiring process. It is important that staff reflect on the results of this bias test, either by bringing in an outside professional, or discussing it internally. 5
To ensure that hiring staff have a diverse pool of applicants, it may be necessary to use additional resources to post open positions. For example, posting positions to community-specific forums may help increase the diversity of an applicant pool. In addition, paying for new hires to relocate may increase diversity among new staff. Agencies should also take care to recruit a diverse set of pro bono attorneys. Agency leadership should be involved in local specialty or minority bar associations to help recruit diverse pro bono attorneys and employees.
Involvement in the community is also essential to developing and maintaining a diverse work environment. When organizations are fully integrated into communities, they have a greater opportunity to contribute positively to the field. In order to have the most impact, it is essential for agencies to have a presence in their communities, and for agencies to reflect those communities.
H. Supervisors must explicitly and actively acknowledge, address, and work to mitigate privilege and oppression in their work, their agency, and in relationship to their staff.
4 Project Implicit, https://implicit.harvard.edu/implicit/takeatest.html (last visited May 13, 2019).
5 See Frequently Asked Questions, Project Implicit, https://implicit.harvard.edu/implicit/faqs.html (last visited May 14, 2019); Implicit Bias Awareness: Resources and Activities, Univ. of Oregon, Off. of the Vice President Fin. & Administration, https://vpfa.uoregon.edu/implicit-bias-awareness-monthevents-and-resources-february-2018 (last visited May 14, 2019); Cheryl Staats et al., State of the Science Implicit Bias Review (5th ed. 2017), available at http://kirwaninstitute.osu.edu/wp-content/uploads/2017/11/2017SOTS-final-draft-02.pdf; Reading List and Education Resources Implicit Bias and Racial Impact Statements, Cal. Courts, Beyond the Bench Conference (2015), https://www.courts.ca.gov/documents/BTB_23_4P_1.pdf.
IV. Agency Responsibilities and Standards
A. Staff
1. Agencies should have a dedicated annual training budget for both new hires and existing staff. All job descriptions should include participation in regular job-related training.
2. Agencies should provide cross-training on the ethical standards and norms of all professions present within the agency and partner agencies.
3. Executive leadership at agencies that are not covered by attorney privilege should find competent sources of legal supervision for staff.
4. Agencies should develop comprehensive, detailed, written, and realistic job descriptions when engaging in hiring and promotion.
5. All staff should be trained in work management skills, including establishing appropriate boundaries for the successful and timely completion of work.
6. Organizations should develop opportunities for advancement and compensation that are not solely tied to supervisory responsibilities.
7. Agencies should develop a comprehensive, dynamic safety plan for all worksites and ensure physical security measures exist in each office, in court, and online.
8. Agencies should commit funding to security where necessary, and train all staff on the safety plan.
9. Agencies must provide appropriate work space and tools for attorney staff, including but not limited to a secured private office, a secure, separate client database, malpractice insurance, bar dues reimbursement, and case research access.
B. Supervisors
1. All supervisors, including the Executive Director, should receive comprehensive training on supervision and management of staff within 90 days of promotion or hire.
2. Agencies should provide access to regular mentorship and professional development regarding supervisory responsibilities.
3. Legal departments and teams should develop comprehensive annual work plans that include legal representation, outreach, training, policy, and future planning.
4. Legal departments and teams should periodically reassess their priorities.
5. Implementers of grant deliverables should be given an opportunity to provide meaningful input into proposals, especially related to outcomes.
6. Agencies should develop protocols for evaluating supervisors' capacity, skills, and performance both before and after hire/promotion, including how supervising attorneys deal with their own and their supervisees' vicarious trauma and traumatized clients.
7. Evaluation of supervisors should include an assessment of the supervisor's communication to staff and follow-through with staff.
8. Agencies should commit to the long-term skills building of supervisors by incorporating feedback of both senior and junior employees into their evaluation of supervisors.
9. Supervisors should be holistically reviewed in a separate track from other staff review to avoid any perceived or actual conflict.
A. Staff
1. Agencies should have a dedicated annual training budget for both new hires and existing staff. All job descriptions should include participation in regular job-related training.
Comment:
One key to ensuring effective supervision of DSV attorneys is maintaining a training budget for all staff. The American Bar Association Standards for the Provision of Civil Legal Aid, Standard 6.5 states simply: "A provider should provide access to ongoing and comprehensive training for all personnel." 6 Subject matter training, and especially continuing legal education (CLE) credit courses, are integral to the continued development of good litigators. Trainings must be made available to both new hires and existing staff, and the expectation of participation in trainings must be included in all job descriptions. In addition to outlining clear expectations of a position, including training in job descriptions will inform applicants that the organization takes training seriously.
Although training opportunities are sometimes free of cost, there are often costs associated with attending trainings, such as travel, lodging, and per diem. Additionally, there are several nationally-acclaimed trainings that come with a cost. Agencies must do everything possible to maintain funding for attorneys to travel to and attend free and paid trainings. As the Commentary to Standard 6.5 states, "a provider facing budget reductions should resist the temptation to make disproportionate cuts in training. Expertise of current staff is crucial to maintaining a capacity for quality representation, and it is short-sighted and ultimately costly to postpone or eliminate training as a response to limited funding." 7
In addition to external trainings, it is important for agencies to leverage in-house knowledge to train less experienced staff. Senior attorneys should be utilized to conduct in-house trainings where they have subject matter expertise, and these trainings should be recognized as part of a senior attorney's job responsibilities. This is often a cost-effective way to conduct trainings, although as with supervision, agencies must recognize that trainings will take time from a senior attorney's case schedule, and monitor caseloads accordingly. In-house training can take the form of several single events, or could be structured to provide more targeted training to individual employees through a mentorship program. A mentorship program would pair a senior attorney with a junior attorney to provide guidance and advice on legal practice generally as well as other specific training needs.
Where there is no subject matter expertise in-house on a topic, agencies may turn to local law firms, law schools, or retired judges with subject matter expertise to provide high quality trainings on a pro bono basis. In addition to being an educational opportunity for staff, this is also a good way for an agency to remain integrated in the community.
6 Standards for the Provision of Civil Legal Aid, Standard 6.5 (on Training) (ABA Standing Comm. on Legal Aid & Indigent Defendants 2016).
7 Id.
2. Agencies should provide cross-training on the ethical standards and norms of all professions present within the agency and partner agencies.
3. Executive leadership at agencies that are not covered by attorney privilege should find competent sources of legal supervision for staff.
Comment:
Any agency that provides legal services is bound by the ethical standards of the profession. This is true regardless of whether the agency is a law firm with fifty attorneys or a domestic violence shelter with one attorney. Where an agency employs or interacts with individuals not covered by attorney-client privilege (e.g., community advocates, client support persons, etc.) executive leadership must understand the professional ethical standards that bind attorneys. This will ensure that office protocols are in place to protect both clients and employees, and will protect the agency from liability. Agency leadership should communicate early and regularly with employees about information sharing, information protection, and who has what specific duties and obligations under law, grant conditions, professional ethics, and/or agency policy. These guidelines to staff should be as specific as possible, and should serve to educate each member of the staff on not only their own responsibilities, but also the responsibilities of others. 8
4. Agencies should develop comprehensive, detailed, written, and realistic job descriptions when engaging in hiring and promotion.
Comment:
It is important that written job descriptions for all staff positions be as specific as possible. 9 Detailed, written job descriptions help ensure that supervisors and supervisees have the same expectations as one another that are open to revision and updating.
5. All staff should be trained in work management skills, including establishing appropriate boundaries for the successful and timely completion of work.
Comment:
In addition to substantive training, all staff should be trained in basic work management skills to ensure the efficiency of the office. These skills include time management, professional boundaries, and work-life balance. 10 This is particularly important for staff with supervisory roles, who must be trained on establishing boundaries with their supervisees. For example, time limits on a supervisor's "open door" policy may be a helpful boundary for a supervisor to draw when considering their other work. By the same token, supervisors should not be expected to carry a full caseload, as time must be carved out for supervision itself as a part of job responsibilities. Supervisors will be more likely to succeed when they are given reasonable workloads of both supervision duties and client responsibilities. Absent this balance, supervisors will have insufficient time and opportunity to successfully supervise their employees and handle their client's cases.
8 Additionally, the Department of Justice, Office on Violence Against Women grant regulations prohibit disclosure of any personally identifying client information to agency leadership, including for the purpose of "routine monitoring and supervision." See 28 CFR § 90.4(b).
9 For a more detailed explanation of why training must be included in all job descriptions, see Standard IV(A)(1).
10 For a more detailed explanation of the importance of work-life balance and institutionalizing self-care, see Standard III(D).
6. Organizations should develop opportunities for advancement and compensation that are not solely tied to supervisory responsibilities.
Comment:
Supervisory responsibilities should be reserved for individual employees who are suited to the role. Unfortunately, often the only way for attorneys to advance in a legal setting is promotion to a supervisor position. There are many employees who excel in their roles as litigators and should be promoted, but who would not be effective supervisors. Advancement within an organization should not be limited to supervisory positions. Agencies should have non-supervisory advancement and compensation opportunities, such as being a senior staff attorney. A senior staff attorney may be an experienced attorney who has subject matter expertise and can train younger attorneys on specific topics, or be available as a resource. Another option might be to allow experienced attorneys opportunities for greater community engagement through participation in task forces or committees—along with a change in title and compensation.
As a general matter, agencies should strive for career path transparency as well as compensation transparency. Agency leadership should value salary negotiation and supervisee self-advocacy. Salary structure must account for wage gaps created by historical marginalization. 11 Agencies should be proactive about not reinforcing these historical wage gaps by not basing starting salary on a new hire's prior salary; rather, the salary should correlate with the position. Agencies should utilize all forms of compensation in advancing deserving employees, including salary, leave policy, non-financial rewards, title, and space. 12
7. Agencies should develop a comprehensive, dynamic safety plan for all worksites and ensure physical security measures exist in each office, in court, and online.
8. Agencies should commit funding to security where necessary, and train all staff on the safety plan.
Comment:
Staff safety (in addition to client safety) must be a top priority for any agency employing DSV attorneys. Agencies must be proactive and anticipate safety risks from opposing parties, clients, and current and former staff. There must be protocol in place for staff to know what steps to take in case of an emergency, and staff must be trained on that protocol.
It is also important that agencies train on safety risks particular to DSV attorneys. Agency leadership must advise staff of any tools or protocols for security such as barring an abusive individual from the office. Alternative safety solutions include contacting local law firms to donate space, pro bono, to hold depositions or other meetings with adverse parties. Where possible, it is also beneficial to train judges and court personnel on safety for DSV victims, attorneys, and advocates while physically in court. One important lesson here for staff will be the importance of maintaining personal boundaries, such as by refraining from connecting with clients or other witnesses on social media. Additionally, staff should not use personal email accounts or phones to communicate with clients; rather, staff should have work email addresses and a work phone with which to communicate with clients. In
11 For more information on the wage gap, see Nat'l Women's L. Ctr., The Wage Gap: The Who, How, Why, and What to Do (Oct. 2018), available at https://nwlc-ciw49tixgw5lbab.stackpathdns.com/wp-content/uploads/2018/10/The-Wage-Gap-Who-HowWhy-and-What-to-Do-2018.pdf.
12 For examples of employers successfully combatting the wage gap, see Maya Raghu & Caitlin Lowell, Nat'l Women's L. Ctr., Employer Leadership to Advance Equal Pay: Examples of Promising Practices (Mar. 2017), available at https://nwlc-ciw49tixgw5lbab. stackpathdns.com/wp-content/uploads/2017/03/Equal-Pay-Practices-4.19.17.pdf.
the alternative, other technical advances such as a Google phone number may also be helpful when an attorney is out of the office but must call a client. These boundaries and precautions will be particularly important in rural or isolated communities, where many community members already know one another. Maintaining appropriate physical barriers and behavioral protocols will help mitigate some of the risk posed by these cases.
9. Agencies must provide appropriate work space and tools for attorney staff, including but not limited to a secured private office, a secure, separate client database, malpractice insurance, bar dues reimbursement, and case research access.
Comment:
Because attorneys must maintain their clients' confidences, it is essential that every attorney has a secure, private workspace that allows for confidential information to be exchanged without fear of being overheard. Databases with client information must similarly be only available to staff tied to the attorney's privilege. Malpractice insurance may be available to a nonprofit legal agency from the National Legal Aid & Defender Association for a reduced price. For case research, legal research companies like LexisNexis and Westlaw generally offer nonprofit rates. Additionally, agencies may establish partnerships with local public law libraries or law schools to access their research databases.
In addition to the physical barriers and other systems required, agencies must remember that an attorney's email, mail, and voicemail are all privileged and cannot be intercepted, handled, or accessible to anyone who is not tied to the attorney's privilege. This may require accommodations such as a separate phone and fax line and a separate PO box.
The agency may also need to maintain an Interest on Lawyers Trust Account (IOLTA) account to receive and maintain client fees. Although the legal services relevant to these Standards are unpaid, there are often circumstances under which clients may have to direct money to the organization for filing fees or other costs.
B. Supervisors
1. All supervisors, including the Executive Director, should receive comprehensive training on supervision and management of staff within 90 days of promotion or hire.
Comment:
Once management and supervisors have been hired or promoted to their positions, it is essential that they be trained specifically on management and supervision techniques. This training should begin as soon as is practicable, but no later than 90 days after the promotion or hire.
2. Agencies should provide access to regular mentorship and professional development regarding supervisory responsibilities.
Comment:
Training is essential as a general matter, 13 but supervisor-specific training is essential for several reasons. First, supervisors must be made aware of their ethical duties and responsibilities. Pursuant to American Bar Association Model Rule of Professional Conduct 5.1, any lawyer who supervises
13 For a more in-depth explanation of the importance of training for all staff, see Standard IV(A)(1).
another lawyer "shall make reasonable efforts to ensure that the other lawyer conforms to the Rules of Professional Conduct [emphasis added]." 14 Supervisors have a proactive duty under the Rules of Professional Conduct to ensure that their supervisees comply with the rules, and it is important for newly hired or promoted supervisors to be aware of that duty. Additionally, the Model Rules of Professional Conduct specify circumstances under which a supervisor shall be considered responsible for their supervisee's conduct: a supervisor "shall be responsible for another lawyer's violation of the Rules of Professional Conduct if . . . (2) the lawyer is a partner or has comparable managerial authority in the law firm in which the other lawyer practices, or has direct supervisory authority over the other lawyer, and knows of the conduct at a time when its consequences can be avoided or mitigated but fails to take remedial action." 15 In other words, inadequate supervision, such as by a supervisor failing to stop or prevent their supervisee from taking unethical action, constitutes a violation of the rules on its own.
Additionally, the American Bar Association Standards for the Provision of Civil Legal Aid, Standard 6.3 states: "A provider is responsible for the conduct of representation undertaken by its practitioners and should supervise the work to assure that each client is competently represented." 16 These standards, targeted specifically to civil legal aid organizations, reaffirms Rule of Professional Conduct 5.1's assertion that there is managerial responsibility for supervisees' actions.
Finally, as a practical matter, it is important for supervisors to be trained on management skills because this will empower them to be the most effective supervisors they can be. This should include human resources training to train a manager on how to handle difficult office situations such as another staff member being terminated. Effective supervisors can get the best out of their employees and also encourage higher levels of staff retention, and as such, training supervisors has an exponential impact on the rest of the agency.
3. Legal departments and teams should develop comprehensive annual work plans that include legal representation, outreach, training, policy, and future planning.
4. Legal departments and teams should periodically reassess their priorities.
Comment:
Supervisors should lead their department or team in developing a work plan that accounts for all activities by all members of the team. This will be helpful to clarify roles across a team, to account for employees' time, and to ensure equity among team members in terms of workload. Additionally, having a written work plan in place will be helpful if upper management asks a member of the supervisor's team to take on additional responsibility. If this occurs, the supervisor must speak frankly with upper management to assess which of that employee's pre-existing responsibilities should be foregone in favor of the newly requested responsibility.
Finally, work plans should account for attorneys who leave the organization. 17 Where an attorney has left the organization for any reason, the organization should maintain funding for malpractice tail coverage 18 to protect themselves from liability.
14 Model Rules of Prof'l Conduct r. 5.1 (Am. Bar Ass'n 2016).
15
Id.
16 Standards for the Provision of Civil Legal Aid, Standard 6.3 (on Responsibility for the Conduct of Representation) (ABA Standing Comm. on Legal Aid & Indigent Defendants 2016).
17 For a detailed explanation of planning for temporary or permanent attorney absence, see Standard V(K).
18 Malpractice tail coverage extends the period during which law firms may report a claim to their insurance carrier, allowing for coverage of claims after an attorney has left the organization.
5. Implementers of grant deliverables should be given an opportunity to provide meaningful input into proposals, especially related to outcomes.
Comment:
It is important that supervisors, as well as other employees responsible for implementing grant deliverables, have an opportunity to participate in the grant-writing process. Supervisors and others who implement grant deliverables are in the best position to realistically assess what future deliverables should be written into grant proposals as they are the individuals completing the work each day. In some offices that house DSV attorneys, supervisors are already the primary authors of grant applications. That is certainly acceptable as well, but it is important that, at a minimum, supervisors be able to provide their input on the process. Alternatively, a development team may be best-suited to write much of a grant application, while a supervisor could write portions that relate to deliverables. Where possible, consult with non-supervisor employees on grant applications as well.
6. Agencies should develop protocols for evaluating supervisors' capacity, skills, and performance both before and after hire/promotion, including how supervising attorneys deal with their own and their supervisees' vicarious trauma and traumatized clients.
Comment:
Upper management must have systems in place to evaluate supervisors' performance. This is important before hire, to determine the most effective candidate, but also after hire, to ensure that supervisors are performing at their best. As supervisors play a critical role in the continued success of agencies that employ DSV attorneys, it is essential that there are mechanisms by which to hold them accountable for their performance.
7. Evaluation of supervisors should include an assessment of the supervisor's communication to staff and follow-through with staff.
8. Agencies should commit to the long-term skills building of supervisors by incorporating feedback of both senior and junior employees into their evaluation of supervisors.
Comment:
Upper management should have protocols for getting feedback from a supervisor's supervisees. While supervisees should be encouraged to raise any supervision issues immediately, having a regular check-in on the state of their supervision creates an open environment for feedback. These regular check-ins should happen separately in time from the supervisees' own performance evaluation to avoid any real or perceived retaliation for either party providing negative feedback on the other.
In addition to learning how supervisors perform in their supervisory roles in the office, upper management should inquire into supervisors' non-supervisory performance, such as by observing their court appearances or attending a coalition meeting with them. It is important that supervisors consistently represent the ideals of their organization, and it is upper management's responsibility to ensure that they do.
9. Supervisors should be holistically reviewed in a separate track from other staff review to avoid any perceived or actual conflict.
Comment:
Protocols should be put in place to ensure there that a supervisor's own evaluation of a supervisee is not dependent on that supervisee's evaluation of them. This can be accomplished by conducting supervisor reviews at a different point in time or ensuring that reviews are kept confidential. In addition to obtaining feedback from a supervisee, agencies may find it helpful to get feedback from a supervisor's clients to ensure that case-handling responsibilities are still being met.
V. Supervisor Responsibilities and Standards
A. Supervisors should develop a time frame of substantive competency benchmarks for supervisees and customize them for each new hire.
B. Supervisors should provide for a meaningful "open door" or office hour policy in addition to routine formal feedback.
C. Supervisors should schedule regular check-in meetings with supervisees that are not performance reviews, and make observation of in-court and out-of-court performance part of their routine.
D. Where supervisors and supervisees are not in the same office, supervisors should implement a formal distance supervision and practice protocol which includes scheduled virtual meetings; in-person meetings and supervision; and long-distance work product review.
E. Remote employee job descriptions should include formal networking and community engagement.
F. Supervisors should implement randomized case file audits.
G. Supervisors should provide formal, explicit, and routine check-ins, feedback, and performance reviews for more experienced supervisees as well as CLE and non-CLE learning opportunities, including on vicarious trauma and self-care.
H. Supervisors should provide attorneys with an appropriate range of cases based on their experience in the domestic and sexual violence field, which should be reevaluated based on performance reviews and supervision.
I. There should be an overall cap on cases based on types of cases to ensure high-quality representation.
J. Caseload management should be a transparent process.
K. Supervisors should ensure that a coverage plan is in place for staff taking both expected and unexpected leave (short-term, long-term, and permanent) that is ethical and responsive to caseloads.
L. Supervisors should work with agency leadership to develop and implement alternative metrics for describing and reporting case outcomes that more accurately reflect the work than mere case closings.
M. Withdrawal from a case due to an irredeemable attorney-client relationship is permissible, but should only be considered after other strategies to meet the client's needs have been unsuccessful.
N. When weighing withdrawal from a case, supervisors should consider the unique experience of clients coping with the aftermath of domestic and sexual violence, including trauma, relocation, lack of trust, and safety concerns, as well as the unique experience of serving domestic and sexual violence clients, including a heightened risk to the attorney and the organization.
A. Supervisors should develop a time frame of substantive competency benchmarks for supervisees and customize them for each new hire.
Comment:
Supervisors should maintain a list of substantive competency benchmarks and the time period during which they should be achieved. Examples of benchmarks include conducting a client interview, drafting pleadings, co-counseling a hearing, and litigating a contested trial alone. Specific benchmarks and time frames should be modified for each hire depending on a number of factors, including if they are a new attorney, an experienced attorney, new to the practice area, new to practice in the state, or new to legal services.
B. Supervisors should provide for a meaningful "open door" or office hour policy in addition to routine formal feedback.
Comment:
In order to provide helpful feedback, supervisors need to observe their supervisees in court, in client interviews, and in community events. This means, again, that time must be allocated for supervisors to perform supervisory duties. 19 Expectations of supervisees should be clear through both written job descriptions 20 and ongoing conversations with supervisors. These conversations, along with other feedback, should take place regularly in the form of performance evaluations, but also in more informal check-ins and with a supervisor maintaining an "open door" policy. The American Bar Association Standards for the Provision of Civil Legal Aid, comment to Standard 6.4 on Review of Representation provides supplemental methods to providing oversight and review:
* ● "Day-to-day interaction between practitioners and supervisors, by means of formal conferences or informal discussions regarding pending cases and other legal work;
* ● Assignment of responsibility for complex representation jointly to a senior practitioner and one or more junior practitioners to assure that the work of the least experienced staff is overseen by someone of proven ability;
* ● Regular office or team meetings to inform supervisors and peers of the status of an individual's case and other legal work;
* ● Frequent written or electronic case management reports to supervisors on the status of the practitioner's open cases, in sufficient detail to signal a need for further inquiry in the event that a case is not proceeding properly;
* ● Attendance by the reviewer at proceedings, such as hearings and trials, meetings or other settings where the reviewer has an opportunity to observe the practitioner's performance." 21
There should not necessarily be an expectation that a supervisor will be available during all business hours, but supervisors should allocate some time each day to be available to their supervisees for questions. Face-to-face interaction with supervisees is preferable, but an "open door" policy could be effectuated where a supervisor and supervisee work in different locations. For example, remote office hours could take place over the phone or video chat. Off-site supervision in general will require more creativity and will require the supervisor to be more proactive. 22
19 For a further explanation of the necessity of having time carved out for all expected tasks, see Standard III(A).
20 See id.
21 Standards for the Provision of Civil Legal Aid, Standard 6.4 cmt. (on Review of Representation) (ABA Standing Comm. on Legal Aid & Indigent Defendants 2016).
22 For a more detailed description of how off-site supervisors can make themselves available to their supervisees, see Standard V(D).
Whether the supervisor is on-site or off-site, office hours provide an opportunity not only for supervisees to ask questions and get feedback, but also provide an opportunity for supervisors to assess their supervisees' overall well-being. As discussed in Standard III(B), it is critical that supervisors be trained on signs of vicarious trauma and burnout and be vigilant to ensure that their supervisees are practicing appropriate and effective self-care.
Communication beyond conversations between supervisors and supervisees can also be effective as a form of positive feedback. For example, if a supervisee has a particularly successful hearing, a supervisor should consider sharing that success story with the full organization. This will make the supervisee feel valued, let them know they did a good job, and can also help build morale for the whole office.
C. Supervisors should schedule regular check-in meetings with supervisees that are not performance reviews, and make observation of in-court and out-of-court performance part of their routine.
D. Where supervisors and supervisees are not in the same office, supervisors should implement a formal distance supervision and practice protocol which includes scheduled virtual meetings; in-person meetings and supervision; and long-distance work product review.
Comment:
Geography sometimes demands that supervisors and supervisees work in separate locations. This can create barriers to communication between supervisors and supervisees, so it is important for supervisors to be proactive in implementing regular check-ins and work product review. 23 Possibilities include phone calls or video chats every week at the same time to ensure an opportunity to communicate regularly. These check-ins should not only address a supervisee's work performance but their general well-being as well.
Even where a supervisor works remotely, it is still essential that they attend each supervisee's first several client interviews and hearings. Again, supervisors should have a limited caseload, particularly if their supervisees work across county or state lines such that travel times become significant.
E. Remote employee job descriptions should include formal networking and community engagement.
Comment:
Where a supervisor works in a remote location, it is important for them to foster relationships between distance supervisees and members of the local bar, local victim advocates, and other stakeholders. A supervisor should make it clear that building local relationships is part of the supervisee's job. Building these connections will help the supervisee feel like part of the advocacy community and will provide them with important relationships that may sometimes fill the space of a remote supervisor who cannot be physically present each day.
23 For a more in-depth discussion of virtual office hours, see Standard V(B).
F. Supervisors should implement randomized case file audits.
Comment:
It is important for supervisors to review their supervisees' case files periodically to ensure that files are properly maintained. Reviewing case files will ensure that the supervisor is abreast of the goings-on of their supervisees' open and closed cases, and provides an opportunity for the supervisor to give feedback or guidance on the case's progress or outcome. Auditing files will also help ensure that attorneys close their cases in a timely manner. Second, maintaining clear and organized files is helpful if an attorney is unexpectedly unavailable and a colleague must step in to handle a matter, or if a client returns to the organization several years later and a new attorney handles the case. Implementing randomized case file audits is a measure of quality control that will benefit the supervisor, the supervisee, and the organization as a whole.
G. Supervisors should provide formal, explicit, and routine check-ins, feedback, and performance reviews for more experienced supervisees as well as CLE and non-CLE learning opportunities, including on vicarious trauma and self-care.
Comment:
Many attorneys who represent DSV victims have limited litigation experience and the need for supervision is clear. However, supervisors must ensure that they supervise their attorneys with more litigation experience as well. The American Bar Association Standards for the Provision of Civil Legal Aid, Standard 6.4 states that "a provider should review representation provided to clients to assure that they receive high quality assistance and to identify areas in which the provider should offer training and support to its practitioners." 24 This guidance applies to all supervisees regardless of experience. Strategic case conferences, 25 random case audits, 26 and other forms of review should continue for the duration of a supervisee's employment with the organization. Supervisees with considerable experience should be asked how they want to grow and expand their career path as a part of check-ins or other reviews, and supervisors should create a culture that supports ongoing learning.
H. Supervisors should provide attorneys with an appropriate range of cases based on their experience in the domestic and sexual violence field, which should be re-evaluated based on performance reviews and supervision.
Comment:
Caseload management is a difficult task in a field in which there will always be more clients in need of services. It is critical that a supervisor properly manages their supervisees' caseloads to ensure the high-quality representation for all clients. The American Bar Association Standards for the Provision of Civil Legal Aid, Standard 6.2 states that "a provider should assign and manage cases and individual workloads for practitioners and other staff to promote high quality representation and legal work." 27 According to Standard 6.2, the factors that should govern the assignment and management of cases are "the availability of adequate time to represent the client competently . . . the practitioner's level of experience, training and expertise, . . . the status and complexity
24 Standards for the Provision of Civil Legal Aid, Standard 6.4 (on Review of Representation) (ABA Standing Comm. on Legal Aid & Indigent Defendants 2016).
25 For a more in-depth discussion of supplemental forms of supervision, see Standard V(B).
26 For a more in-depth discussion on the importance of case file audits, see Standard V(F).
27 Standards for the Provision of Civil Legal Aid, Standard 6.2 (on Assignment and Management of Cases and Workload) (ABA Standing Comm. on Legal Aid & Indigent Defendants 2016).
of pending cases, . . . non-representational legal work and other responsibilities, . . . [and] the provider's capacity for support." 28 Other factors to consider include any travel required for the litigation, the need for an interpreter, or access to a paralegal.
While there is no uniform number of cases that would be appropriate for all attorneys representing DSV victims, a caseload between 15–25 is likely appropriate for a full-time staff attorney. While "case" can be defined very differently by different organizations, these Standards define a case as one legal matter with one client. For example, one client with a protective order petition is one case. If that client also has a custody petition pending, that is a second case. A less experienced attorney should be at the lower end of this case range. This case number will also vary based on the type of cases, as contested custody cases often take considerably more time than protection order cases. Attorneys should carry a combination of complex and straightforward cases.
I. There should be an overall cap on cases based on types of cases to ensure high-quality representation.
J. Caseload management should be a transparent process.
K. Supervisors should ensure that a coverage plan is in place for staff taking both expected and unexpected leave (short-term, long-term, and permanent) that is ethical and responsive to caseloads.
Comment:
With attorneys often carrying full caseloads, it can be challenging for an organization when they are out of the office. When employees can give notice of their leave, for example for a vacation or parental leave, employers may have a greater opportunity to arrange case coverage. However, it is important that this case coverage plan be in place even before an organization receives notice of an attorney's expected leave so all employees share the same understanding of the redistribution of work. Additionally, having a coverage plan in place will lead to a smoother work redistribution when an attorney is on leave unexpectedly. An organization must put financial resources toward a coverage plan, and grant proposals should generally never account for just one lawyer per project. Fostering trusted ongoing relationships with other local experienced attorneys may also be helpful to ensuring case coverage. After a conflicts check, and with the express written consent of the client, cases can be transferred either temporarily or permanently to local attorneys.
In addition to ensuring that there is always an attorney designated to take over a case from another attorney on leave, every organization that employs a DSV attorney needs a formal system for locating files and searching through calendars. Maintaining an office-wide litigation calendar may assist with this process. Intake staff who are responsible for scheduling client appointments with attorneys should be kept up-to-date on any attorneys on leave and adjust their scheduling processes accordingly.
Unfortunately, there are times when grant funding is eliminated and attorneys are forced to leave an organization with open cases. To protect their own interests and their clients' interests in these cases, organizations should maintain funding for attorneys outside of the grant in order to close any remaining open cases. Additionally, where an attorney has left the organization for any reason, the organization should maintain funding for malpractice tail coverage cost to protect themselves from liability.
L. Supervisors should work with agency leadership to develop and implement alternative metrics for describing and reporting case outcomes that more accurately reflect the work than mere case closings.
Comment:
Grant applications and reports often call for specific case numbers in making funding decisions and determining an agency's progress towards fulfilling the grant deliverables. Grant applications should project anticipated case numbers, but they should be attainable and not the only descriptor of the work completed; case numbers alone are not completely reflective of the amount and type of work done by many DSV attorneys. 29 One possible alternative metric is the number of hours an attorney has spent on cases, rather than the number of total cases the attorney has closed, as that may better account for an attorney's work who has litigated several complex and time-consuming cases. Reporting variations in case types is also helpful in conjunction with reporting on case hours; for example, noting the number of "brief service" cases versus "litigated outcomes" or "negotiated settlements." Bringing funders on site to the office may also give them a deeper understanding and appreciation for the amount and variety of work being done. Supervisors and leadership should be prepared to advocate with funders on this point.
The alternative metrics recommended in this Standard should also include non-litigation work such as community outreach. Including these additional activities will show the extent of the agency's reach beyond just numbers. Case management systems should be used to track these additional non-litigation services and make them easier to report to funders when the time comes.
M. Withdrawal from a case due to an irredeemable attorney-client relationship is permissible, but should only be considered after other strategies to meet the client's needs have been unsuccessful.
Comment:
First, the factors contemplated by this Standard in the decision to withdraw from client representation are in addition to other local, state, and ethical rules that bind the organization. Agencies should cross-reference all relevant professional standards before making the decision to withdraw from representing a client.
In general, agencies will avoid or limit the circumstances under which withdrawing from a case is necessary by being very clear about the scope of representation from the beginning of the attorneyclient relationship. Any retainer should specify exactly what case the attorney agrees to represent the client on (e.g., "pending visitation case before the Smith County Family Court, Case No. 1234 through final order"), and what the attorney will not represent the client on (e.g., "no representation on appeal"). When both parties understand the limit of the attorney-client relationship, withdrawal should be necessary less frequently.
Under no circumstances should representation be conditioned on a client taking specific actions, including signing a confidentiality waiver or participating in counseling, however opting in to these services is a possibility. 30
Staff resources are a factor to consider when determining whether to withdraw from a case. Of course, resources should be a determinative factor when deciding whether to initially take on case representation, but there are instances where circumstances change. If the nature of a case
29 For these Standards' definition of what constitutes a case, see Standard V(H).
30 U.S. Dep't of Just., Off. on Violence Against Women, FY 2019 Solicitation Companion Guide OVW Grant Programs & Post-Award Information 16 (2019).
changes dramatically, funding is reduced, or attorneys leave unexpectedly, 31 an agency may need to withdraw from a case. This is particularly true for small offices. Under such circumstances, make sure to communicate promptly and clearly with the client and be available to respond to any questions or concerns they may have.
Finally, in considering whether to withdraw from a case, as with every other phase of client representation, agencies must be proactive in managing their biases. Bias-based withdrawal from representation could occur even where a lawyer withdraws representation in-part or implicitly based on the client's race, gender, or other marginalized status. Foundational Principles III. F. and III. G of these Standards provide a detailed description of the need to increase diversity and limit institutional bias. It is critical that all decisions an organization makes are made with an understanding of its own implicit biases, and supervisors should bear that in mind as they or their supervisees make any case withdrawal decisions.
N. When weighing withdrawal from a case, supervisors should consider the unique experience of clients coping with the aftermath of domestic and sexual violence, including trauma, relocation, lack of trust, and safety concerns, as well as the unique experience of serving domestic and sexual violence clients, including a heightened risk to the attorney and the organization.
Comment:
One major consideration for an agency considering withdrawal from a case is the client's safety. Safety concerns include the client's ability to communicate their needs to the court and their relative level of danger. Where a client would have major difficulties communicating on their own behalf or where they are in a tremendous amount of danger, withdrawal from representation should be avoided if at all possible. In any case where an agency is considering withdrawal from representation due to attorney-client relationship failures, attempts should first be made to mitigate the situation by transferring the case to a different attorney or having a supervisor co-counsel the case. If an agency does need to withdraw from a case, they should make every effort possible to find new counsel for the client.
31 For a more in-depth explanation of how to avoid lapses in attorney coverage by developing a coverage plan, see Standard V(K).
VI. Appendix
Resources:
(1) Model Rules of Prof'l Conduct r. 5.1 (Am. Bar Ass'n 2016).
(2) Standards for the Provision of Civil Legal Aid, Standards 6.2–6.6 (ABA Standing Comm. on Legal Aid & Indigent Defendants 2016).
(3) National Council of Nonprofits, https://www.councilofnonprofits.org.
(4) Management Information Exchange Website, Mgmt. Innovation Excellence for Legal Aid, https://mielegalaid.org.
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ORIGINAL ARTICLE
Lack of association between plasminogen activator inhibitor-1 4G/5G polymorphism and retinopathy of prematurity in premature neonates
Didem ARMANGİL 1 , İbrahim AKALIN 2,3 , Yakup ASLAN 4 , Duygu ÖZEL DEMİRALP 5
1 Department of Pediatrics, Neonatology Unit, Koru Hospital, Ankara, Turkey
2 Trabzon Kanuni Education and Research Hospital, Genetic Diseases Diagnosis Center, Trabzon, Turkey
3 Department of Medical Genetics, İstanbul Medeniyet University, Faculty of Medicine, İstanbul, Turkey
4 Department of Pediatrics, Neonatology Unit, Karadeniz Technical University, Faculty of Medicine, Trabzon, Turkey
5 Ankara University Biotechnology Institute, Besevler, Ankara, Turkey
Keywords
Retinopathy of prematurity, plasminogen activator inhibitor, 4G/5G gene polymorphism, neonate
Received: 06 July 2015
Accepted: 21 August 2015
ABSTRACT • Background and aims: Retinopathy of prematurity (ROP) is a proliferative vascular disorder in premature neonates. Due to differences in individual responses to the treatment, various genetic factors have been investigated in the etiology of ROP. We investigated the gene polymorphism of plasminogen activator inhibitor (PAI-1) 4G/5 as a risk factor of ROP development. Materials and Methods: 73 neonates with ROP and 101 controls were enrolled to study. Genotyping was analyzed using real time PCR. Results: The proportion of 4G/4G, 4G/5G and 5G/5G genotypes did not differ statistically between the ROP and control groups (p>0.05). Having PAI-1 4G/4G genotype polymorphism seems to develop the risk of ROP (OR =0.702; 95% CI: 0.300-1.639) less than PAI-1 4G/5G polymorphisms (OR =1.064; 95% CI: 0.4692.410). 4G/4G genotype frequency was decreasing as the stages of ROP were increasing though there was no statistically significant difference between proportion of genotypes and ROP stages. Conclusion: This study showed that PAI-1 4G/5G genotype which is known as a risk factor for angiogenesis is not a predisposing factor for ROP development.
INTRODUCTION
Retinopathy of prematurity (ROP) is the chief proliferative vascular disorder leading to visual impairment or complete vision loss in premature neonates as a result of incomplete and abnormal retinal vascular development (1). The main pathology in ROP is abnormal angiogenesis. During angiogen- esis extracellular proteinases and their inhibitors play important roles in the regulation of endothelial cell matrix (ECM) remodeling. The restructuring of ECM by secretion of proteolytic enzymes is one of the well-characterized steps of the angiogenic program (2) and interconnected with neonatal diseases such as respiratory distress syndrome (RDS) (3), brochopulmonary dysplasia (BPD) (4), as well as ROP (5) by responses to tissue injury (6).
Despite decades of researches on the pathogenesis of ROP, we still lack adequate knowledge to predict in which infants ROP will regress spontaneously or progress in spite of reasonable treatment. Because of differences in individual responses to the treatment, various genetic factors have been looked into to understand the etiology of ROP (7). The alterations in the regulation or expression of the responsible genes might contribute to a genetically determined susceptibility to ROP as shown in the monozygotic twin studies (8). Plasminogen activator inhibitor (PAI) is a serine protease inhibitor (serpins) (9) and play a central role in retinal angiogenesis. Intravitreal injection of human recombinant PAI-1 significantly reduced retinal neovascularization in ROP rat model and found to inhibit pathologic angiogenesis (10). The PAI-1 gene contains a common 4G/5G insertion/deletion polymorphism that plays an important role in the regulation of PAI-1 gene expression (9).
The aim of this study was to investigate the gene polymorphism of PAI-1 4G/5G as an important risk factor of tissue remodeling and angiogenesis within ROP pathophysiology. To our knowledge, this study is the first report investigating the association between PAI-1 4G/5G polymorphisms and ROP in premature infants.
MATERIAL and METHODS
Patients and controls
The study was performed at the Neonatal Intensive Care Unit (NICU) of the both Trabzon Women's and Children's Hospital and Karadeniz Technical University Children's Hospital, Trabzon, Turkey, between June 2010 and June 2011. To investigate the genotype distribution of PAI -1 4G/5G gene polymorphism, 73 preterm infants with ROP and 101 controls were enrolled in the study. Our study group included neonates with a birth weight of less than 1.500 g or gestational age of 32 weeks or less and/or selected neonates with a birth weight between 1.500 g and 2.000 g or gestational age of more than 32 weeks with an unstable clinical course, including those requiring cardio-respiratory support. Infants were submitted to fundus examination using indirect ophthalmoscopy. Before ocular examination, 2.5% phenylephrine and 0.5% cyclopentolate drops were administered for pupil dilatation. The first screening examination was conducted on all infants when their chronological age was 4-6 weeks. When premature retinopathy was not detected, they were re-evaluated within 2-week intervals until the retinal vascularization was complete. Serial eye examinations were performed according to a standard schedule suggested by the American Academy of Ophthalmology, the American Academy of Pediatrics, and the American Association for Pediatric Ophthalmology and Strabismus. ROP stages were determined according to the International Premature Retinopathy Classification Committee. Stages of retinopathy of prematurity are defined by vessel appearance at the interface between the vascular and avascular retinal areas. This interface resembles a line for stage 1, a three-dimensional ridge for stage 2, and a ridge with neovascularization extending into the vitreous gel for stage 3 (Plus disease — as in stage 3+ — indicates that two or more quadrants of the eye have dilated veins and tortuous arteries near the optic disk). The neovascularization can progress to form fibrous bands that cause partial retinal detachment (stage 4), and ultimately, total retinal detachment (stage 5). When ROP was diagnosed, patients were examined every week starting from the beginning of the disease until it regressed. Control groups were defined as premature neonates with no diagnosis of ROP. Neonates with congenital anomalies were excluded. All blood samples for hematological testing were obtained from a peripheral vein during lifetime before any blood product transfusion.
DNA extraction and genotyping of the 4G/5G polymorphism
We obtained blood samples and genomic DNA with informed consent as overseen by the Local Ethical Committee of Trabzon Numune Training and Research Hospital. EDTA-blood was collected for DNA extracted and genotyping was performed using a primer probe set of PAI-1 PCR system (Dr. Zeydanli Life Sciences, Ankara, Turkey) having 5'-3' exonuclease activity. After that, PCR reaction was set according to the manufacturer's instructions.
Statistical methods
Using Statistical Package analyzed the data for the Social Sciences (SPSS) 11.5 for Windows (Chicago, Illinois). Values were expressed as mean, ±SD. Differences between groups were analyzed using χ2, Mann-Whitney U, and Kruskal-Wallis tests. Unmatched Odds ratio (OR) and 95% confidence intervals (CI) as estimates of the relative risk of the allele frequency were calculated in the entire study population. The 95% CI were calculated from a conditional logistic regression algorithm using the maximum likelihood method. A p value <.0.5 was considered statistically significant.
RESULTS
Of 174 infants included in the study, 73 (41.9%) were infants with ROP and 101 (%58.1) were controls with gestational age ranging between 26 and 35 weeks. The mean birth weight was 1322±431 g and 1414±313 g in infants with ROP and control group, respectively. The mean gestational age was 29.4±0.8 weeks and 30±1.4 weeks, respectively and the difference was statistically significant (p<0.01). There was no statistical difference between two groups with respect to percentages of males, infants undergoing cesarean section, mean birth weight, or percentage of infants who were born with premature rupture of membranes, chorioamnionit and preeclampsia, except their 5th minute Apgar score (Table 1).
Genotype distributions of PAI-1 4G/5G polymorphisms and allele frequency in preterm infants with ROP and control groups are shown in Table 2. There are no differences between the ROP and conrtol groups for the proportion of 4G/4G, 4G/5G, and 5G/5G genotypes and 4G, 5G allele frequencies (P >0.5). Having PAI-1 4G/4G genotype polymorphism appears to developed the risk of ROP (OR =0.702; 95% CI: 0.300-1.639) less than PAI-1
ROP, retinopathy of prematurity; PROM, premature rupture of the membranes. *Mean.
4G/5G polymorphisms (OR =1.064; 95% CI: 0.4692.410), though it was not statistically significant. The percentages of 4G/4G genotype frequency were decreasing as the stages of ROP were increased although there was no statistically difference between proportion of 4G/4G, 4G/5G and 5G/5G genotypes and ROP stages (p=6.25) (Table 3) (Figure 1).
ROP, retinopathy of prematurity; PAI, plasminogen activator inhibitor; OR, odds ratio; CI, confidence interval.
ROP, retinopathy of prematurity; PAI, plasminogen activator inhibitor; OR, odds ratio; CI, confidence interval.
DISCUSSION
Retinopathy of prematurity remains a significant cause of morbidity among preterm infants worldwide. Even in developed countries screening programs and interventions aimed to prevent and treat the ROP, it still accounts for 3% to 11% of blindness in children (11). Therefore, in this study we aimed to investigate promising underlying effect of PAI-1 4G/5G gene polymorphism within ROP infants.
Of the numerous risk factors that have been investigated, gestational age and birth weight remain the most important. Taking into account the effect of gestational age and the duration of supplemental oxygen use, the investigators showed that 70% of the variance in susceptibility to ROP was the result of genetic factors alone (13). In our study, we found statistically significant lower mean gestational age within ROP infants compared to control group in consistent with the literature that it's expected to have a higher risk of developing ROP as infants who were born at a lower gestational age (14,15) (Table 1). Studies evaluating polymorphisms in specific candidate genes, such as vascular endothelial growth factor (VEGF), have also demonstrated an association between sequence variations and severity of ROP (12,16). However, the literature was lack of study which investigates the genetic susceptibility in the pathogenesis of ROP in association with PAI-1 gene polymorphism. Premature neonates are exposed to higher oxygen levels in the early stages of retinal vascular development. This hyperoxia down regulates the essential angiogenic factors those are necessary for the growth of the vasculature. This results in a vaso-obliterative phase and has seen in neonates born at early gestational ages about 30-32 weeks (1,17). The mean gestational age of our ROP group was 29.4±0.8 week.
The activity of urokinase-type plasminogen activator (uPA) and the surface expression of the uPA/ uPA receptor (uPAR) complex is tightly regulated
by PAI-1. PAI-1 a member of the serpin superfamily whose primary function is the inhibition of plasminogen activator by internalizing uPA/uPAR complex and thought to play a role in the regulation of angiogenesis (18,19). Recently, it has been speculated that genetic factors may affect in ROP development either by changing expressions of critical genes who were mentioned above (12, 20, 21) by acting as accomplice at pathogenesis and it is possible that the combined effects of those polymorphisms may differ in susceptibility to development of severe ROP. However, scientist has failed to show significant association between VEGF, IGF-1 or Norrie disease gene polymorphisms with ROP, respectively (13) . Since the PAI-1 is a critical control protein in ECM remodeling and angiogenesis in ROP pathogenesis, the absence of association between the gene polymorphisms of previous candidate genes and ROP might be because of the probable diverse expression of PAI gene in the angiogenesis cascade of the individuals.
The 4G/5G polymorphism at 675th basepairs of the 5' start site of transcription in the PAI-1 promoter has been identified, which relates to the assorted circulating PAI-1 concentrations (22). The functional nature of this mutation is that the 5G allele binds both to a transcription and to a repressor factor, whereas the 4G allele only binds the transcription factory (23). In vitro experiments have shown that the 4G allele produces more PAI-1 RNA than the 5G allele and presence of the homozygous 4G state was associated with higher PAI-1 level (24, 25) which could lead to inhibition of pathologic angiogenesis (19,26). We expected inhibition of pathologic angiogenesis due to higher PAI levels would be leaded by decreased ROP risk in 4G/4G homozygote neonates. In our study, we found PAI1 4G/4G genotype was less likely to develop ROP compared to PAI-1 4G/5G genotype, though it was not statistically significant. To our knowledge, our study is the first report to investigate the association of PAI-1 gene polymorphisms on retinal angiogenesis demonstrating decreased risk of ROP development within the 4G homozygous patients.
A recent study by Dammann et al. (27) has shown that even the genetic markers were not associated with ROP occurrence, the were found to be associated with the progression to high grade disease. In parallel, we examined the severity of ROP with staging; the percentages of 4G/4G genotype frequency were decreasing as the stages of ROP were increasing although there was no statistically difference between proportion of 4G/4G, 4G/5G and 5G/5G genotypes and ROP stages (Table 3). Since our cases were less in account, future studies with large groups to investigate PAI gene polymorphism with ROP stages would be helpful in the design of screening programs for ROP, and may also be a tool in discriminating infants at high risk of ROP, and therefore in need of treatment, from those at lesser risk.
REFERENCES
1. Chen J, Smith LE. Retinopathy of prematurity. Angiogenesis 2007;10:133-40.
2. Mignatti P, Rifkin DB. Plasminogen activators and matrix metalloproteinases in angiogenesis. Enzyme Protein 1996;49:117-37.
3. Armangil D, Yurdakok M, Okur H, Gurgey A. Plasminogen activator inhibitor I 4G/5G polymorphism in neonatal respiratory distress syndrome. Clin Appl Thromb Hemost 2011;17:352-7.
4. Ince DA, Atac FB, Ozkiraz S, Dilmen U, Gulcan H, Tarcan A, Ozbek N. The role of plasminogen activator inhibitor-1 and angiotensin-converting enzyme gene polymorphisms in bronchopulmonary dysplasia. Genet Test Mol Biomarkers 2010;14:643-7.
5. Le Gat L, Gogat K, Bouquet C, Saint-Geniez M, Darland D, Van Den Berghe L, Marchant D, Provost A, Perricaudet M, Menasche M, Abitbol M. In vivo adenovirus-mediated delivery of a uPA/uPAR antagonist reduces retinal neovascularization in a mouse model of retinopathy. Gene Ther 2003;10:2098-103.
6. Matrisian LM. Metalloproteinases and their inhibitors in matrix remodeling. Trends Genet 1990;6:121-5.
7. Mohamed S, Schaa K, Cooper ME, Ahrens E, Alvarado A, Colaizy T, Marazita ML, Murray JC, Dagle JM. Genetic contributions to the development of retinopathy of prematurity. Pediatr Res 2009;65:193-7.
In conclusion, in view of the key role of PAI-1 in ECM remodeling and angiogenesis the association of PAI-1 gene polymorphisms in neonatal diseases as IVH (28), BPD (4), RDS (3), and this study is the first report investigating the association between PAI-1 4G/5G polymorphisms in the pathogenesis of ROP in premature neonates. We found no significant difference in the genotype distribution of PAI-1 gene nor in the frequency of PAI-1 4G and 5G alleles between the ROP and control groups; however having PAI-1 4G/4G genotype appears to developed the risk of ROP less than PAI-1 4G/5G polymorphism. It would be interesting to know whether a larger dataset of ROP patients can confirm our initial findings. Further identification of new polymorphisms and mutations that may influence susceptibility to ROP could help in the development of new and innovative treatments and allow targeting reducing unnecessary exposure to potentially harmful therapies.
8. Bizzarro MJ, Hussain N, Jonsson B, Feng R, Ment LR, Gruen JR, Zhang H, Bhandari V. Genetic susceptibility to retinopathy of prematurity. Pediatrics 2006;118:1858-63.
9. Ryan MP, Kutz SM, Higgins PJ. Complex regulation of plasminogen activator inhibitor type-1 (PAI-1) gene expression by serum and substrate adhesion. Biochem J 1996;314 (Pt 3):1041-6.
10. Penn JS, Rajaratnam VS. Inhibition of retinal neovascularization by intravitreal injection of human rPAI-1 in a rat model of retinopathy of prematurity. Invest Ophthalmol Vis Sci 2003;44:5423-9.
11. Gilbert C, Fielder A, Gordillo L, Quinn G, Semiglia R, Visintin P, Zin A; International NO-ROP Group. Characteristics of infants with severe retinopathy of prematurity in countries with low, moderate, and high levels of development: implications for screening programs. Pediatrics 2005;115:e518-25.
12. Cooke RW, Drury JA, Mountford R, Clark D. Genetic polymorphisms and retinopathy of prematurity. Invest Ophthalmol Vis Sci 2004;45:1712-5.
13. Holmstrom G, van Wijngaarden P, Coster DJ, Williams KA. Genetic susceptibility to retinopathy of prematurity: the evidence from clinical and experimental animal studies. Br J Ophthalmol 2007;91:1704-8.
14. Hartnett ME. Studies on the pathogenesis of avascular retina and neovascularization into the vitreous in peripheral severe retinopathy of prematurity (an american ophthalmological society thesis). Trans Am Ophthalmol Soc 2010;108:96-119.
15. Shastry BS. Genetic susceptibility to advanced retinopathy of prematurity (ROP). J Biomed Sci 2010;17:69.
16. Watson CJ, Webb NJ, Bottomley MJ, Brenchley PE. Identification of polymorphisms within the vascular endothelial growth factor (VEGF) gene: correlation with variation in VEGF protein production. Cytokine 2000;12:1232-5.
17. Ashton N, Ward B, Serpell G. Effect of oxygen on developing retinal vessels with particular reference to the problem of retrolental fibroplasia. Br J Ophthalmol 1954;38:397-432.
18. Nykjaer A, Conese M, Christensen EI, Olson D, Cremona O, Gliemann J, Blasi F. Recycling of the urokinase receptor upon internalization of the uPA:serpin complexes. Embo J 1997;16:2610-20.
19. Basu A, Menicucci G, Maestas J, Das A, McGuire P. Plasminogen activator inhibitor-1 (PAI-1) facilitates retinal angiogenesis in a model of oxygen-induced retinopathy. Invest Ophthalmol Vis Sci 2009;50:4974-81.
20. Rasmussen SK, Lautier C, Hansen L, Echwald SM, Hansen T, Ekstrom CT, Urhammer SA, Borch-Johnsen K, Grigorescu F, Smith RJ, Pedersen O. Studies of the variability of the genes encoding the insulin-like growth factor I receptor and its ligand in relation to type 2 diabetes mellitus. J Clin Endocrinol Metab 2000;85:1606-10.
21. Hutcheson KA, Paluru PC, Bernstein SL, Koh J, Rappaport EF, Leach RA, Young TL. Norrie disease gene sequence variants in an ethnically diverse population with retinopathy of prematurity. Mol Vis 2005;11:501-8.
22. Franco RF, Reitsma PH. Gene polymorphisms of the haemostatic system and the risk of arterial thrombotic disease. Br J Haematol 2001;115:491-506.
23. Eriksson P, Kallin B, van 't Hooft FM, Bavenholm P, Hamsten A. Allele-specific increase in basal transcription of the plasminogen-activator inhibitor 1 gene is associated with myocardial infarction. Proc Natl Acad Sci U S A 1995;92:1851-5.
24. Grant PJ. Polymorphisms of coagulation/fibrinolysis genes: gene environment interactions and vascular risk. Prostaglandins Leukot Essent Fatty Acids 1997;57:473-7.
25. Panahloo A, Mohamed-Ali V, Lane A, Green F, Humphries SE, Yudkin JS. Determinants of plasminogen activator inhibitor 1 activity in treated NIDDM and its relation to a polymorphism in the plasminogen activator inhibitor 1 gene. Diabetes 1995;44:37-42.
26. McGuire PG, Jones TR, Talarico N, Warren E, Das A. The urokinase/urokinase receptor system in retinal neovascularization: inhibition by A6 suggests a new therapeutic target. Invest Ophthalmol Vis Sci 2003;44:2736-42.
27. Dammann O, Brinkhaus MJ, Bartels DB, Dordelmann M, Dressler F, Kerk J, Dörk T, Dammann CE. Immaturity, perinatal inflammation, and retinopathy of prematurity: a multi-hit hypothesis. Early Hum Dev 2009;85:325-9.
28. Heineking B, Riebel T, Scheer I, Kulozik A, Hoehn T, Buhrer C. Intraventricular hemorrhage in a full-term neonate associated with sinus venous thrombosis and homozygosity for the plasminogen activator inhibitor-1 4G/4G polymorphism. Pediatr Int 2003;45:93-6.
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GENERAL TERMS AND CONDITIONS
Gyáli Városgazda Ltd.
November 2023
Table of Contents:
1. Service Provider's Information
2. General Rules
3. Contracting Party
4. Formation of the Contract, Reservation Method, Modification, Notification Obligation
5. Cancellation Conditions
6. Prices
7. Payment Conditions
8. Steps for Online Room Reservation and Online Payment
9. Mode and Conditions of Service Utilization
10. Pets
11. Refusal of Contract Performance, Termination of Service Obligation
12. Guest's Illness, Death
13. Rights of the Contracting Party
14. Obligations of the Contracting Party
15. Liability for Damages of the Contracting Party
16. Rights of the Service Provider
17. Obligations of the Service Provider
18. Liability for Damages of the Service Provider
19. Confidentiality
20. Applicable Law, Competent Court in the Parties' Legal Relationship
1. Service Provider's Information
Company Name: Gyáli Városgazda Limited Liability Company
Short Name: Gyáli Városgazda Ltd.
Registered Office: 2360 Gyál, Ady Endre Street 22
Phone: +36 30 158 9448
Tax Identification Number: 24184409-2-13
Company Registration Number: 13-09-160450
2. General Rules
2.1. The "General Terms and Conditions" (hereinafter referred to as GTC) regulate the conditions related to the use of the Service Provider's accommodations and the services offered therein.
2.2. The Service Provider may enter into a separate agreement regarding the services it offers, and the specific provisions of this agreement may differ from the provisions outlined herein.
2.3. The Service Provider is entitled to modify these General Terms and Conditions. The provisions of the modified General Terms and Conditions shall apply to offer requests sent by the Service Provider and contracts concluded based on such requests, following the effective date of the modification.
3. Contracting Party
3.1. The contracting party is a natural person or legal entity, as well as any other organization ordering and/or utilizing the services of the Service Provider. The contracting party also includes the natural person who actually uses the services of the Service Provider. The term collectively referring to the party ordering and/or utilizing the service is hereinafter referred to as the "Guest." The Service Provider and the Guest, upon fulfillment of the conditions, become contracting parties, hereinafter collectively referred to as the "Contracting Parties."
4. Formation of the Contract, Reservation Method, Modification, Notification Obligation
4.1. Upon receiving a request for an offer from the Guest, whether orally or in writing – via letter, online, or email – the Service Provider sends a proposal. If, within 48 hours from the dispatch of the proposal, there is no specific written order accepting the Service Provider's offer, the Service Provider's obligation to the offer ceases.
4.2. The contract is formed upon the confirmation by the Service Provider, sent in writing, letter, online, or via email, of the reservation made by the Guest in writing, letter, online, or via email. Thus, it qualifies as a contract concluded in writing.
4.3. The contract, agreement, modification, or the confirmation thereof by the Service Provider made verbally does not create the contract or contract modification. It is only considered valid when confirmed in writing by all parties involved.
4.4. In the case of an order placed in person by the Guest at the Service Provider's premises, the Guest signs the printed order form for the requested service. The confirmation from the Service Provider is done by the signature of the staff member working at the Service Provider's reception on the order form, qualifying it as a contract concluded in writing.
4.5. The contract for the use of accommodation services is always valid for a specified duration.
4.6. If the Guest permanently vacates the room before the expiration of the specified duration as defined in the contract concluded between the Parties, the Service Provider is entitled to the
full consideration for the services specified in the contract, as ordered by the Guest, regardless of whether the Guest has partially utilized them.
4.7. According to section 4.6, the Service Provider is entitled to resell a room that has become vacant before the expiration of the specified duration.
4.8. To initiate an extension of the accommodation services, the Guest requires the Service Provider's prior written consent. In this case, the Service Provider may stipulate, as a condition for the extension, the reimbursement of the consideration for the services already provided.
4.9. A written agreement signed by the Parties is required for the modification and/or supplementation of the contract.
4.10. The parties may deviate from the provisions set forth in this contract through a specific agreement, in which case the legal relationship between the parties is determined by the terms specified in the specific agreement.
5. Cancellation Conditions
5.1 The Guest has the option of canceling the accommodation service without incurring a penalty until the written confirmation sent by the Service Provider is received.
5.2. The cancellation conditions vary for individual bookings, which include up to 10 natural persons or 5 concurrently booked rooms, and for group bookings, which involve reservations made by or on behalf of natural persons exceeding 10. Different provisions apply to cancellation conditions during peak periods and for the non-refundable rate category. (see 5.4, 5.7, 5.8)
5.3. Cancellation conditions for individual bookings during non-peak periods:
5.3.1. Following the receipt of the written confirmation from the Service Provider, the Guest is entitled to cancel the reservation without incurring a penalty for bookings involving fewer than 10 people, until 2:00 PM local time on the day preceding the arrival date.
5.3.2. Following the receipt of the written confirmation from the Service Provider, for bookings involving fewer than 10 people, the Guest may modify or cancel the reservation until 2:00 PM local time on the day preceding the arrival date, upon payment of a cancellation fee equal to 100% of the total consideration for the services specified in the reservation. If the modification pertains exclusively to additional service(s) beyond those confirmed by the Service Provider, the Guest is not obliged to pay a cancellation fee. In this case, the provision of the additional requested service(s) may be mutually agreed upon in writing by the parties.
5.4. Cancellation conditions for individual bookings during peak periods, holidays, and in the case of the non-refundable rate category are as follows:
5.4.1. After receiving the written confirmation from the Service Provider, for bookings involving fewer than 10 people, the Guest may modify or cancel the reservation without penalty until the 8th day preceding the arrival date. In the case of the non-refundable rate category, the hotel management may decide on a refund in the event of proven force majeure.
5.4.2. After receiving the written confirmation from the Service Provider, for bookings involving fewer than 10 people, the Guest may modify or cancel the reservation until the 7th day preceding the arrival date or within the 7 days, upon payment of a cancellation fee equal to 100% of the total consideration for the services specified in the reservation. If the modification pertains exclusively to additional service(s) beyond those confirmed by the Service Provider, the Guest is not obliged to pay a cancellation fee. In this case, the provision of the additional requested service(s) may be mutually agreed upon in writing by the parties.
5.5. Cancellation conditions for group bookings (including peak periods) are as follows:
5.5.1. Groups exceeding 10 people cannot cancel their reservations without penalty after the Provider sends a written confirmation to the Guest.
5.5.2. Groups exceeding 10 people can modify or cancel their reservations until 45 days prior to the arrival date, upon payment of a penalty equivalent to 25% of the total consideration for all confirmed services (such as room quantity, room and equipment rental fees, hospitality e.g., meals, coffee breaks - and other ordered services) ordered and confirmed by the Provider.
5.5.3. Groups exceeding 10 people can modify or cancel their reservations until 30 days prior to the arrival date, upon payment of a penalty equivalent to 50% of the total consideration for all confirmed services (such as room quantity, room and equipment rental fees, hospitality e.g., meals, coffee breaks - and other ordered services) ordered and confirmed by the Provider.
5.5.4. Groups exceeding 10 people, as well as conference and event bookings, can modify or cancel their reservations until 15 days prior to the arrival date, upon payment of a penalty equivalent to 100% of the total consideration for all confirmed services (including room quantity, room and equipment rental fees, hospitality - e.g., meals, coffee breaks - and other ordered services) ordered and confirmed by the Provider.
5.5.5. If the modification of the reservation by the Guest pertains solely to additional service(s) beyond those confirmed by the Provider in the confirmation, the Guest is not obligated to pay a penalty. In this case, the parties may agree in writing on the provision of the additional requested service(s).
5.6. If the Guest pays an advance to the Provider at the time of booking or thereafter, based on the agreement of the parties, but the Guest either partially or completely fails to utilize the confirmed service(s) or partially or completely cancels it, the Provider is entitled to retain the entire amount of the paid advance. In this case, the difference between the value of the services utilized by the Guest and the advance serves as compensation (liquidated damages) for the Provider.
5.7. The penalties specified in points 5.4. and 5.5. above may be enforced by the Provider against any advance provided by the Guest or any payment made by the Guest, offsetting them against each other.
5.8. In the event of the Guest's (No Show), the Provider is entitled to a penalty equivalent to 100% of the value of the services specified in the reservation.
5.9. Peak periods:
March 15
Easter
May 01
Pentecost
August 20
October 23
November 01
December 24. – January 01.
5.10. The Guest acknowledges and accepts that the Provider is entitled to cancel the ordered services – without refunding the advance and free from any further consequences – if, due to unforeseeable and unavoidable circumstances beyond its control (hereinafter referred to as "Force Majeure"), it is unable to perform the services. In the event of Force Majeure, the Provider is obliged to refund the advance payment for the service, but is not obligated to compensate for non-performance due to Force Majeure.
5.11. Any cancellation as detailed in point 5 must reach the Provider by 2:00 PM. Cancellations received after this time will be considered as received on the following day, and the cancellation conditions and legal consequences applicable to cancellations will be accordingly based on this timing.
6. Prices
6.1. The current room rates and prices for other services are posted online, in hotel rooms, and/or at the hotel's reception. In case of any discrepancies between the data from various sources, with respect to the prices of individual services, the rates displayed on the website shall prevail.
6.2. The Provider reserves the right to change its advertised prices freely and without prior notice.
6.3. When announcing prices, the Provider indicates the applicable value-added tax (VAT) rate, as regulated by law, at the time of the quotation. In the event of additional charges due to changes in the current tax laws (VAT), the Provider may pass on these extra costs to the Contracting Party, provided there is prior notice.
6.4. The Provider does not publicly disclose event and conference prices; they are only provided to the Guest or Organizer upon specific request.
7. Payment Conditions
7.1. The Provider may request payment for the consideration of the services provided to the Contracting Party before using the services. This may involve requesting a guarantee and/or a deposit in the form of a credit card (hereinafter: Credit Card). In this process, the total consideration for the ordered and confirmed service or a portion thereof, according to the decision of the provider, may be temporarily reserved on the credit card, or alternatively, the Provider may demand full payment of the total consideration before the use of the service.
7.2. The Provider claims the consideration for the services provided to the contracting party at the latest after the utilization, but before leaving the hotel. However, this is subject to individual agreements, and retroactive payment is possible only based on specific arrangements. Such retroactive payment may be linked to the Provider's stipulation of an advance payment, as determined in the individual agreement. In the case of retroactive payment, the payment deadline shall not exceed 30 days.
7.3. The contracting party can settle their bill in cash in the following currencies: Hungarian Forint (HUF) or Euro (EUR).
7.4. The Guest is entitled to settle the consideration for the services with the SZÉP card, as indicated by the Provider on the website.
7.5. The invoice will be issued in accordance with Hungarian tax regulations, either in Hungarian Forint (HUF) or Euro (EUR). If the price of the services is determined in a currency, the conversion to Hungarian Forint will be based on the official exchange rate of the previous day listed on the Hungarian National Bank's official website on the day of the Guest's arrival.
7.6. If the contracting party is a business entity or contracting authority and delays payment obligations to the Provider, the Provider may charge a collection cost lump sum of 40 EURO according to Act IX of 2016 on the lump sum of collection costs.
7.7. If the Guest or contracting party delays payment obligations to the Provider, the Provider is entitled to enforce its claim through legal proceedings, either civil or non-civil, with the assistance of a lawyer. The costs related to the collection of the claim shall be borne by the Guest or contracting party. In the case of a business entity or contracting authority as the contracting party, the provisions of sections 7.6 and 7.7 are applied jointly regarding the costs related to the collection.
8. Steps for Online Room Reservation and Online Payment
8.1. When booking on the www.a22hotel.hu website:
When booking a room, the following information must be provided:
a., The last name and first name of the person making the reservation.
b., The email address.
c., The phone number and residential address (postal code, city, street, house number, and country according to the residential address).
d., If the billing address is different from the previously provided residential address, selecting it requires entering the precise billing address.
e., In the comments field, you have the opportunity to provide any additional information related to the reservation for the attention of the service provider.
f., For online room reservations, a credit card guarantee is required, where the card number, expiration date, and 3-digit security code must be provided. The data will only be used in the event that a cancellation fee is applicable (see section 5. Cancellation conditions) and for bookings of non-refundable services.
8.3. Other conditions:
8.3.1. The Guest is obliged to immediately report any complaints on-site after utilizing the service. Following verbal complaints, the service receptionist endeavors to address the complaint within the scope of their authority. If this is not successful, the guest may submit their complaint in writing, and the Provider is obligated to investigate the written complaint. Subsequently, the Provider decides on the method and extent of any possible compensation. The possibility of filing a complaint after leaving the hotel is excluded by the Provider.
8.3.2. The Provider undertakes the obligation to treat personal and other information obtained during online booking as confidential and not to disclose or make it public to any third party. An exception to this is if the Guest explicitly consents to the disclosure or requests it.
9. Mode and Conditions of Service Utilization
9.1. The Guest may check into the hotel room from 3:00 PM on the day of arrival for both individual and group reservations (Check-in). On the last day of stay, the Guest is required to vacate the room by 10:00 AM, and until this time, the Guest must settle their account at the reception by returning the key card.
9.2. If a Guest does not vacate the room by 10:30 AM, the Provider is entitled to charge a surcharge of 50% of the daily room rate until 2:00 PM and 100% after 2:00 PM.
9.3. If, based on individual agreement, the Provider provides a room/storage for the Guest for the purpose of storing packages, the Guest may use it until 12:00 AM on the day of departure. The Provider does not guard the room/storage provided in this way, and assumes no responsibility for the items or packages placed therein. After the specified deadline, the Provider is entitled to place the packages and other items left in the room/storage in the hotel's common area, without guarding them. The Provider assumes no responsibility for their loss, theft, or damage. If the Guest does not retrieve the package/item by 12:00 AM on the day following their departure, the Provider is entitled to dispose of it. The Guest expressly accepts these conditions, acknowledging that if their package or any property left in the hotel is destroyed as per the above, they have no claims against the Provider.
10. Pets
10.1. Pets are not allowed in the accommodations of the Provider.
11. Refusal of Contract Performance, Termination of Service Obligation
11.1. The Provider is entitled to terminate the contract for accommodation services with immediate effect and refuse to provide any further services, apart from those already provided, if:
a) the Guest misuses the assigned room or any part of the facility, especially, but not exclusively, if they damage or cause harm to the room, the facility, or any related furnishings or equipment found in the Hotel in any way;
1. b) the Guest fails to comply with the security regulations and rules of the Provider;
2. c) the Guest behaves objectionably and/or rudely towards the employees of the Provider and/or other guests or individuals, or exhibits disruptive, offensive, or threatening behavior towards others;
3. d) the Guest, under the influence of alcohol and/or drugs, engages in threatening, offensive, or disruptive behavior towards others;
4. c) the Guest exhibits behavior that is likely to cause offense to another person, or;
5. c) the Guest is suffering from a contagious disease.
11.1.2. If the Provider exercises the right to terminate the contract with immediate effect for any of the reasons mentioned above, the Guest is required to leave the Hotel within 2 hours of the immediate termination notice provided by the Provider. Prior to leaving the Hotel, the Guest must settle the full consideration for the services specified in the confirmed reservation by the Provider. If the termination does not apply to all guests collectively using the Hotel's services based on the reservation, the remaining guests are entitled to continue using the Hotel's services. In such a case, if the unaffected guests do not wish to avail themselves of the services specified in the reservation going forward, the provisions outlined in section 4.6 shall apply to them.
12. Guest's Illness, Death
12.1. If, during the duration of the accommodation service, the Guest falls ill and is unable to manage their own affairs, the Provider offers medical assistance.
12.2. In the event of the Guest's illness/death, the Provider claims cost compensation from the patient/deceased's relatives, heirs, or the payer of the invoice; this includes any medical and procedural costs, the consideration for services used prior to death, and any potential damages incurred in equipment and furnishings related to the illness/death.
13. Rights of the Contracting Party
13.1. Pursuant to the contract, the Guest is entitled to the intended use of the reserved room, as well as the facilities of the accommodation that fall within the usual scope of services and are not subject to special conditions.
13.2. The Guest may file a complaint regarding the provision of services by the Provider during their stay at the accommodation. The Provider undertakes to handle complaints that are officially communicated in writing (or recorded by the Provider in a protocol) during this period.
13.3. The Guest's right to make a complaint ceases after departing from the accommodation.
14. Obligations of the Contracting Party
14.1. The Guest/Contracting Party is obligated to settle the consideration for the services ordered in the contract by the specified deadline and in the manner outlined in the contract.
14.2. The Guest ensures that any child under the age of 14 under their responsibility stays in the Provider's hotel only under adult supervision.
14.3. The Guest is not allowed to use a drone or quadcopter on the entire hotel premises and within a 150-meter radius of the hotel, and may not record footage with it, in order to protect the privacy of other guests. In the event of a violation of this provision, the Guest is fully responsible for any damage caused by the drone.
15. Liability for Damages of the Contracting Party
15.1. The Guest is responsible for all damages and losses caused by the Guest, their companions, or other individuals under their responsibility to the Provider or a third party. This liability persists even if the injured party is entitled to seek compensation directly from the Provider.
16. Rights of the Service Provider
16.1. If the Guest fails to fulfill their obligation to pay for the penalty-bearing services taken or ordered but not used in the contract, the Provider has a lien on the Guest's personal property brought into the hotel to secure its claims.
16.2. The Provider is entitled to take recordings, photos, and/or videos (hereinafter referred to as recording) on the Hotel premises and in the immediate vicinity for the purpose of promoting the Hotel and for marketing purposes. During such recording, the Guest has the right to indicate on-site that they do not wish to appear in it, in which case the Provider is obliged to act in accordance with the Guest's request. If the Guest does not express a preference not to appear in the recording, the parties consider that the Guest has consented to the recording, and the
Provider is entitled to make the recording public through any channels (internet, print media, television, media, hotel website, etc.) and use it for its own economic purposes.
17. Obligations of the Service Provider
17.1. The Service Provider is obliged:
1. a) The Service Provider is obliged to fulfill the contracted accommodation and other services according to valid regulations and service standards.
2. b) The Service Provider is obligated to investigate the written complaint of the guest and take necessary steps to address the issue, which it must document in writing.
18. Liability for Damages of the Service Provider
18.1. The Service Provider assumes responsibility for any damage incurred by the Guest within its facilities that resulted from the error of the Service Provider or its employees.
18.1.1. The Service Provider's liability does not extend to events of damage that occurred beyond the scope of the Service Provider's employees and guests due to unforeseeable circumstances or events caused by the Guest themselves. The Service Provider excludes liability for consequential damages (e.g., lost profits).
18.1.2. The Service Provider may designate areas within the hotel that Guests are not allowed to enter. The Service Provider is not liable for any damage or injury that may occur in such areas.
18.1.3. The Guest must report any damage incurred by them immediately to the hotel and provide all necessary information available to the hotel, which may be required to clarify the circumstances of the incident or for the preparation of a police report/police proceedings, if necessary.
18.2. The Service Provider is liable for the damage suffered by the hotel guest's property – excluding valuables (e.g., jewelry, watches, mobile devices, laptops, phones, and related accessories and components), securities, cash – due to the proven loss, destruction, or damage caused by the fault of the Service Provider or its employee, but only in the event that the Guest placed them in the location designated or generally intended for this purpose by the Service Provider or in their room, or handed them over to an employee of the Service Provider, who could clearly be considered authorized to take over their property.
18.2.1. The Service Provider is only responsible for valuables, securities, and cash if it explicitly received them for safekeeping or if the damage occurred for reasons for which it is generally liable. In this case, the burden of proof lies with the Guest.
18.3. The maximum amount of compensation is fifty times the daily room rate specified in the Agreement, except if the damage is less than this. Beyond this limit, the Service Provider excludes liability for compensation, except for damages that cannot be excluded or limited according to the Civil Code.
19. Confidentiality
19.1. The Service Provider treats confidentially the personal data voluntarily provided by the Guest – or if the orderer and the service user are not the same persons, then by the service user on behalf of the orderer, and by the orderer on behalf of the Service Provider – within the framework of voluntary data provision, including the data provided by the Guest to the Organizer for the purpose of concluding and/or fulfilling the contract. The data is used solely for the identification of individual Guests and Organizers and for the performance of the contract to the extent necessary for such performance.
19.2. The Service Provider may use the personal data of the Guest and/or the service orderer to enforce its claims against the Guest and/or the service orderer, and may disclose the personal data of the Guest and/or the service orderer to authorities authorized by law. The Guest/service orderer expressly accepts the above provisions by accepting this Terms and Conditions.
20. The Parties accept the provisions of these General Terms and Conditions. For any legal dispute arising from the service contract, the competent court at the location of the service shall have jurisdiction.
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TABLE OF CONTENTS
Section IV
(6-Year Contract from June 1, 2014 to June 30, 2020)
Elementary Integrated Social Studies
Section IV
Page 1 of 26
SECTION IV OFFICIAL LIST OF TEXTBOOKS STATE OF TENNESSEE
Contract Begins June 1, 2014 6-Year Listing Contract, Expires June 30, 2020 Social Studies & History
Recommended By The State Textbook Commission Approved By The State Board of Education
TEXTBOOK SELECTION CLASSIFICATIONS
Basal Text - This designation identifies an on-level text adopted by the local school district for use at a particular grade level in a specific subject. Except for the typical supplementation expected for any text, the basal should address all the content for that subject. The basal text is the one that local boards of education are encouraged to adopt and make available for most students.
Technology Dependent Basal – This designation identifies a basal program which requires technological hardware, software, and/or infrastructure for its implementation. Local school systems adopting these programs are responsible for determining the necessary platforms and infrastructure to support these programs and for providing the technology necessary to deliver instruction.
Co-Basal Text - This designation identifies a text which addresses a significant portion of a course but which also fails to address a significant portion of the course. School systems may adopt a combination of co-basal programs which together address the entire course. Systems might also combine a co-basal program with existing resources in order to address all components of a course. When such combinations are employed, it is the responsibility of the school system to assure that materials sufficient to address all components are provided.
Alternative Level Text - This designation may be used to identify texts adopted by a local school district to address the needs of students not on grade level. Such books are designated as "Alternative Level-Low" or "Alternative Level-High." These books may be purchased in lieu of the basal text for a limited number of students. Local systems do have the option of adopting a book or series as an alternative level text even though it has not been so designated in the official list.
ELECTRONIC FILES FOR BRAILLE PRODUCTION
Each publisher bidding textbooks for Section IV has agreed in writing to the following stipulation: We further agree to furnish to the State Department of Education, the American Printing House for the Blind, or a national repository, within 60 days of receipt of a request, electronic computer text files from which applicable Braille versions of any bound print title bid herein may be produced.
BOOKS NOT CONSTRUCTED TO SPECIFICATIONS
This list includes certain print titles not constructed in Accordance with the MANUFACTURING STANDARDS AND SPECIFICATIONS FOR TEXTBOOKS and certain titles in other media for which manufacturing standards have not been adopted. The publishers of these titles have executed the following REPLACEMENT WARRANTY AGREEMENT:
This replacement warranty shall be attached as an exhibit to any contract awarded pursuant to our bid to the State Textbook Commission for the contract period June 1, 2014 through June 30, 2020. It shall apply to all non-consumable for sale components included in our bid either hard-cover or non-consumable soft-cover texts nor to Warranty Clause One on FORM M of the same document for components in one of the electronic media formats recognized in the MSST . Publisher hereby warrants and represents that all such components shall remain in good and usable condition for six years after the date of delivery, obvious signs of student abuse or extreme use excepted. In the event during said six year period any such component shall no longer remain in good and usable condition, then upon written notice to publisher, said publisher agrees to provide replacement within thirty (30) days of said notice. THIS WARRANTY DOES NOT APPLY TO ITEMS DESIGNATED AS CONSUMABLE.
FREE ANCILLARY MATERIALS
Free ancillary materials to accompany adopted programs have been identified with the following symbols designating the ratio at which these materials will be provided:
** Free, one per teacher
@__:__ Free, specified number of free items
+ Free, one per school
per specified number
DD Free, one per district
of pupil editions purchased
Publishers were limited in the number of lines on the bid form used to describe their free materials offerings. Each local school system is responsible for maintaining a file of any offers for free materials beyond those recorded in this list. Such offers should be required in writing and should be signed and dated by the publisher's representative.
Certain items provided free are also bid for contract. These items will be available at the specified price for the full term of the contract for the benefit of those systems who need to purchase quantities beyond the ratio provided by the publisher or who choose to purchase the items independently of the programs with which they will be provided free.
Section IV
Page 2 of 26
Publisher - Title - Author
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Free
Ratio
Grade ISBN-10
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INTEGRATED SOCIAL STUDIES GRADES R/1-5
Section IV
Page 3 of 26
Code
Publisher - Title - Author
Free
Ratio
Grade ISBN-10
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WORLD HISTORY & GEOGRAPHY: EARLY CIVILIZATIONS TO
THE DECLINE OF THE ROMAN EMPIRE GRADE 6
McGraw-Hill School Education
Section IV
Page 4 of 26
Publisher - Title - Author
Code
Free
Ratio
Grade ISBN-10
WORLD HISTORY & GEOGRAPHY: EARLY CIVILIZATIONS TO
THE DECLINE OF THE ROMAN EMPIRE GRADE 6
Prentice Hall (Pearson Education)
WORLD HISTORY & GEOGRAPHY: THE MIDDLE AGES TO THE
EXPLORATION OF THE AMERICAS GRADE 7
McGraw-Hill School Education
Section IV
Page 5 of 26
ISBN-13 Wholesale
TBC Code
Publisher - Title - Author
Free
Ratio
Grade ISBN-10
WORLD HISTORY & GEOGRAPHY: THE MIDDLE AGES TO THE EXPLORATION OF THE AMERICAS GRADE 7
Prentice Hall (Pearson Education)
myWorld History & Geography: The Middle Ages to Exploration of the Americas Tennessee Student with Digital Courseware, Six Year
Student License continued
COLONIZATION OF NORTH AMERICA TO RECONSTRUCTION & THE AMERICAN WEST GRADE 8
McGraw-Hill School Education
Section IV
Page 6 of 26
ISBN-13 Wholesale
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COLONIZATION OF NORTH AMERICA TO RECONSTRUCTION & THE AMERICAN WEST GRADE 8
Prentice Hall (Pearson Education)
Tennessee Teacher's Online Access Pack
0133285669 9780133285666 $337.97
Section IV
Page 7 of 26
Code
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AFRICAN AMERICAN HISTORY - GRADES 9-12
Bedford, Freeman & Worth Publishing
ECONOMICS - GRADES 9-12
Bedford, Freeman & Worth Publishing
Section IV
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ECONOMICS - GRADES 9-12
PSYCHOLOGY - GRADES 9-12
Section IV
Free
Code
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Section IV
Free
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Section IV
Free
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UNITED STATES GOVERNMENT & CIVICS - GRADES 9-12
Houghton Mifflin Harcourt
Section IV
Code
Publisher - Title - Author
Free
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TBC Code
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Free
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UNITED STATES HISTORY & GEOGRAPHY: POST-RECONSTRUCTION TO THE PRESENT - GRADES 9-12
Houghton Mifflin Harcourt
The Americans: Reconstruction to the 21st Century
9-12
Section IV
Code
Publisher - Title - Author
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UNITED STATES HISTORY & GEOGRAPHY: POST-RECONSTRUCTION TO THE PRESENT - GRADES 9-12
Houghton Mifflin Harcourt
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UNITED STATES HISTORY & GEOGRAPHY:
POST-RECONSTRUCTION TO THE PRESENT - GRADES 9-12
Prentice Hall (Pearson Ed.)
WORLD GEOGRAPHY
Houghton Mifflin Harcourt
Section IV
Free
Ratio
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WORLD HISTORY & GEOGRAPHY: THE INDUSTRIAL REVOLUTION TO THE CONTEMPORARY WORLD
McGraw-Hill School Education
Section IV
TBC Code
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Free
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ISBN-13
WORLD HISTORY & GEOGRAPHY: THE INDUSTRIAL REVOLUTION TO THE CONTEMPORARY WORLD
Prentice Hall (Pearson Ed.)
Section IV
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A.P. U.S. HISTORY
Section IV
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A.P. EUROPEAN HISTORY
Cengage Learning
Section IV
Code
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Free
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Grade
A.P. MICROECONOMICS
McGraw-Hill School Education
Kindergarten 1:18 Grades 1-2 1:22 Grades 3-8 1:25 Grades 9-12 - Core 1:50 Grades 9-12 - Non-Core/Elective 1:35 Grades 9-12 - CTE/AP/IB 1:25 + one Per School
Section IV
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ISBN-10
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Section IV
Section IV
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AP PSYCHOLOGY
Cengage Learning
Kindergarten 1:18 Grades 1-2 1:22 Grades 3-8 1:25 Grades 9-12 - Core 1:50 Grades 9-12 - Non-Core/Elective 1:35 Grades 9-12 - CTE/AP/IB 1:25 + one Per School
Section IV
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Bedford, Freeman and Worth Publishing
Section IV
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GRAN TIERRA ENERGY, INC. Form 424B3 May 07, 2009 Filed pursuant to Rule 424(b)(3) Registration No. 333-140171
PROSPECTUS
40,988,749 Shares
Common Stock
This prospectus relates to the offering by the selling stockholders of Gran Tierra Energy Inc. of up to 40,988,749 shares of our common stock, par value $0.001 per share. These shares of common stock include (1) up to 9,627,901 shares of common stock issued or issuable to selling stockholders upon exercise of warrants, and (2) 10,984,126 shares of common stock issued or issuable to selling stockholders upon exchange of exchangeable shares of Gran Tierra Goldstrike, Inc., an indirect subsidiary of Gran Tierra. The shares of common stock, warrants and exchangeable shares were issued in a series of private offerings, and are being registered to satisfy registration rights with respect to most of the shares.
We will not receive any proceeds from the sale of common stock by the selling stockholders. We may receive proceeds from the exercise price of the warrants if they are exercised by the selling stockholders. We intend to use any proceeds received from the selling stockholders' exercise of the warrants for working capital and general corporate purposes.
The selling stockholders may sell the shares of common stock from time to time in the open market, on the NYSE Amex, the Toronto Stock Exchange, in privately negotiated transactions or a combination of these methods, at market prices prevailing at the time of sale, at prices related to the prevailing market prices, at negotiated prices, or otherwise as described under the section of this prospectus titled "Plan of Distribution."
Our common stock is traded on the NYSE Amex under the symbol "GTE" and on the Toronto Stock Exchange under the symbol "GTE." On April 29, 2009, the closing price of our common stock was US$2.42 per share on the NYSE Amex and CDN$2.96 per share on the Toronto Stock Exchange.
Investing in our common stock involves risks. Before making any investment in our securities, you should read and carefully consider the risks described in "Risk Factors" beginning on page 3 of this prospectus.
Neither the Securities and Exchange Commission nor any state securities commission has approved or disapproved of these securities or passed upon the accuracy or adequacy of this prospectus. Any representation to the contrary is a criminal offense.
The date of this prospectus is May 1, 2009.
1
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
You should rely only on the information contained in this prospectus and any free-writing prospectus that we authorize to be distributed to you. We have not authorized anyone to provide you with information different from or in addition to that contained in this prospectus or any related free-writing prospectus. If anyone provides you with different or inconsistent information, you should not rely on it. The information contained in this prospectus is accurate only as of the date of this prospectus, regardless of the time of delivery of this prospectus or of any sale of our common stock. Our business, financial conditions, results of operations and prospects may have changed since that date.
i.
PROSPECTUS SUMMARY
This summary highlights information contained elsewhere in this prospectus but might not contain all of the information that is important to you. Before investing in our common stock, you should read the entire prospectus carefully, including "Risk Factors" and our financial statements and the notes thereto included in our filings with the Securities and Exchange Commission and incorporated into this document by reference.
For purposes of this prospectus, unless otherwise indicated or the context otherwise requires, all references herein to "Gran Tierra," "we," "us," and "our," refer to Gran Tierra Energy Inc., a Nevada corporation, and our subsidiaries.
Our Company
Gran Tierra Energy Inc. is an international oil and gas exploration and production company operating in South America, headquartered in Calgary, Canada, incorporated in the United States. We hold interests in producing and prospective properties in Argentina, Colombia and Peru. We have a strategy that focuses on growing a portfolio of producing properties, plus production enhancement and exploration opportunities to provide a base for future growth. In November 2008, Gran Tierra combined with Solana Resources Limited, or Solana, in a transaction in which Solana became a wholly-owed subsidiary of Gran Tierra.
Corporate Information
Gran Tierra Energy Inc. was incorporated under the laws of the State of Nevada on June 6, 2003, under the name of Goldstrike Inc. Our principal executive offices are located at 300, 611 – 10th Avenue S.W., Calgary, Alberta T2R 0B2, Canada. The telephone number at our principal executive offices is (403) 265-3221. Our website address is www.grantierra.com. Information contained on our website is not deemed part of this prospectus.
The Offering
The following is a brief summary of the offering. You should read the entire prospectus carefully, including "Risk Factors" and the information, including financial information relating to Gran Tierra, included in our filings with the Securities and Exchange Commission, or SEC, and incorporated in this document by reference.
1.
Edgar Filing: GRAN TIERRA ENERGY, INC. - Form 424B3
common stock being offered by the selling stockholders in this document.
RISK FACTORS
Investing in our common stock involves a high degree of risk. Before making an investment decision, you should carefully consider the risk factors described in our Annual Report on Form 10-K, filed with the SEC on February 27, 2009, which is incorporated by reference in this prospectus, and the other information contained or incorporated by reference in this prospectus. The risks and uncertainties incorporated by reference are not the only risks we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may impair our future business operations. Our business, financial condition or results of operations could be materially adversely affected by any of these risks. In such case, the trading price of our common stock could decline and you could lose all or part of your investment.
SPECIAL NOTE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus contains forward-looking statements within the meaning of Section 27A of the Securities Act of 1933, as amended, or the Securities Act, and Section 21E of the Securities Exchange Act of 1934, as amended, or the Exchange Act. This prospectus includes statements regarding our plans, goals, strategies, intent, beliefs or current expectations. These statements are expressed in good faith and based upon a reasonable basis when made, but there can be no assurance that these expectations will be achieved or accomplished. These forward looking statements can be identified by the use of terms and phrases such as "believe," "plan," "intend," "anticipate," "target," "estimate," "expect," an like, and/or future-tense or conditional constructions "may," "could," "should," etc. Items contemplating or making assumptions about, actual or potential future sales, market size, collaborations, and trends or operating results also constitute such forward-looking statements.
Although forward-looking statements in this prospectus reflect the good faith judgment of our management, forward-looking statements are inherently subject to known and unknown risks, business, economic and other risks and uncertainties that may cause actual results to be materially different from those discussed in these forward-looking statements. Readers are urged not to place undue reliance on these forward-looking statements, which speak only as of the date of this prospectus. We assume no obligation to update any forward-looking statements in order to reflect any event or circumstance that may arise after the date of this prospectus, other than as may be required by applicable law or regulation. Readers are urged to carefully review and consider the various disclosures made by us in our reports filed with the Securities and Exchange Commission which attempt to advise interested parties of the risks and factors that may affect our business, financial condition, results of operations and cash flows. If one or more of these risks or uncertainties materialize, or if the underlying assumptions prove incorrect, our actual results may vary materially from those expected or projected.
USE OF PROCEEDS
We will not receive any proceeds from the sale by the selling stockholders of our common stock. We will receive approximately $10,725,000 if the selling stockholders exercise their warrants in full. The warrant holders may exercise their warrants at any time until their expiration. Because the warrant holders may exercise the warrants in their own discretion, we cannot plan on specific uses of proceeds beyond application of proceeds to general corporate purposes. These proceeds, if any, will be used for general corporate purposes and capital expenditures. We have agreed to bear the expenses in connection with the registration of the common stock being offered hereunder by the selling stockholders.
SELLING STOCKHOLDERS
The information in this prospectus with respect to the selling stockholders combines information previously presented in three different registration statements, containing information as of three different dates. As a result, set forth below
is this information from each of these registration statements. For selling stockholders appearing in more than one table, the information with respect to the number of shares being offered by the selling stockholders is not duplicative, such that shares being offered by a selling stockholder in one table and shares being offered by that same selling stockholder in another table reflect, when combined, the total number of shares being offered by that selling stockholder.
Shares Being Offered From the June 2006 Financing
This prospectus covers shares, including shares underlying warrants, sold in our June 2006, private equity offering to "accredited investors" as defined by Rule 501(a) under the Securities Act pursuant to an exemption from registration provided in Regulation D, Rule 506 under Section 4(2) of the Securities Act. The selling stockholders may from time to time offer and sell under this prospectus any or all of the shares listed opposite each of their names below. We are required, under a registration rights agreement, to register for resale the shares of our common stock described in the table below.
The following table sets forth information about the number of shares beneficially owned by each selling stockholder that may be offered from time to time under this prospectus. Certain selling stockholders may be deemed to be "underwriters" as defined in the Securities Act. Any profits realized by such selling stockholder may be deemed to be underwriting commissions. See "Plan of Distribution."
2.
The table below has been prepared based upon the information furnished to us by the selling stockholders as of February 15, 2009. The selling stockholders identified below may have sold, transferred or otherwise disposed of some or all of their shares since the date on which the information in the following table is presented in transactions exempt from or not subject to the registration requirements of the Securities Act. Information concerning the selling stockholders may change from time to time and, if necessary, we will amend or supplement this prospectus accordingly. We cannot give an estimate as to the number of shares of common stock that will be held by the selling stockholders upon termination of this offering because the selling stockholders may offer some or all of their common stock under the offering contemplated by this prospectus. The total number of shares that may be sold hereunder will not exceed the number of shares offered hereby. Please read the section entitled "Plan of Distribution" in this prospectus.
We have been advised, as noted below in the footnotes to the table, one of the selling stockholders is a broker-dealer, six of the selling stockholders are affiliates of broker-dealers and two of the selling stockholders are both broker-dealers and affiliates of broker-dealers. We have been advised that each such affiliate of a broker-dealer purchased our common stock and warrants in the ordinary course of business, not for resale, and at the time of purchase, did not have any agreements or understandings, directly or indirectly, with any person to distribute the related common stock.
The following table and footnotes thereto set forth the name of each selling stockholder, the nature of any position, office, or other material relationship, if any, which the selling stockholder has had, within the past three years, with us or with any of our predecessors or affiliates, and the number of shares of our common stock beneficially owned by such stockholder before this offering. The number of shares owned are those beneficially owned, as determined in accordance with Rule 13d-3 of the Exchange Act. Under such rule, beneficial ownership includes any shares of common stock as to which a person has sole or shared voting power or investment power and any shares of common stock which the person has the right to acquire within 60 days through the exercise of any option, warrant or right, through conversion of any security or pursuant to the automatic termination of a power of attorney or revocation of a trust, discretionary account or similar arrangement, and such information is not necessarily indicative of beneficial ownership for any other purpose.
Beneficial ownership is calculated based on 238,710,473 shares of our common stock outstanding as of February 15, 2009, which includes 10,984,126 exchangeable shares of Gran Tierra Goldstrike Inc. issued to holders of Gran Tierra Energy Inc., an Alberta, Canada company, or Gran Tierra Canada, common stock and 31,519,884 exchangeable shares of Gran Tierra Exchangeco Inc. issued to holders of Solana common stock. In computing the number of shares beneficially owned by a person and the percentage of ownership of that person, shares of common stock subject to options or warrants held by that person that are currently exercisable or become exercisable within 60 days of February 15, 2009 are deemed outstanding even if they have not actually been exercised. Those shares, however, are not deemed outstanding for the purpose of calculating the beneficial ownership of any other selling stockholder. The persons and entities named in the table have sole voting and sole investment power with respect to the shares set forth opposite the stockholder's name, subject to community property laws, where applicable.
3.
Carol Edelson†
24,999
24,999
8,333
-
-
4.
Hal Rothbaum
46,834
46,834
33,334
-
-
5.
Max Hsu Wei38
1,992,167
39,984
- 1,952,183
*
6.
* Less than 1.0%.
(a) Pursuant to Rule 416 of the Securities Act, this registration statement shall also cover any additional shares of common stock that become issuable in connection with the shares registered for sale hereby by reason of any stock dividend, stock split, recapitalization or other similar transaction effected without the receipt of consideration that results in an increase in the number of our outstanding shares of common stock.
(b) The shares listed in this column represent shares of our common stock issuable upon exercise in full of outstanding warrants initially issued with an exercise price of $1.75 per share in our June 2006 Offering. In June 2007, we amended the terms of all of the warrants issued to the investors in the June 2006 offering, which extended the term of the warrants for one year and decreased the exercise price of the warrants to $1.05 per share.
(c) The shares listed in this column include shares of common stock outstanding and shares of common stock which are issuable upon the exchange of exchangeable shares of Goldstrike Exchange Co.
(d) Assumes all of the shares of common stock and all shares of common stock underlying warrants registered in this offering are sold in the offering.
† We were unable to obtain updated information from this selling stockholder. Shares of common stock being offered based on information provided as of February 11, 2008. Shares of common stock being offered upon exercise of warrants, as applicable, based on information available as of February 15, 2009.
†† We were unable to obtain updated information from this selling stockholder. Shares of common stock being offered based on information provided as of January 10, 2007. Shares of common stock being offered upon exercise of warrants, as applicable, based on information available as of February 15, 2009.
1 James A. Banister has the power to vote and dispose of the common shares being registered on behalf of Bancor, Inc.
2 Ms. Neufeld serves as Geoscience Manager for Gran Tierra.
3 Sandell Asset Management Corp. is the investment manager of Castlerigg Master Investment Ltd. ("Castlerigg") and has shared voting and dispositive power over the securities owned by Castlerigg. Sandell Asset Management Corp. and Thomas E. Sandell, its sole shareholder, disclaim beneficial ownership of the securities owned by Castlerigg.
4 Mr. Oakes also holds 75,000 shares of common stock and warrants to acquire an additional 124,991 shares of common stock at an exercise price of $1.25 per share, acquired in a private placement offering with closing
dates on September 1 and October 7, 2005 (the "First 2005 Offering").
5 Robert and Anetta Chester, trustees, have the power to vote and dispose of the common shares being registered on behalf of Chester Family 1997 Trust UAD 12/09/1997.
6 Christian Thomas Swinbank, trustee, has the power to vote and dispose of the common shares being registered on behalf of Christian Thomas Swinbank UAD 3/14/06.
7 Mr. Foster also holds warrants to acquire an additional 12,491 shares of common stock at an exercise price of $1.25 per share, and 79,365 exchangeable shares issued on November 10, 2005 in connection with the share exchange. Also includes 99,981 shares of common stock and 49,991 shares of common stock issuable pursuant to warrants beneficially held by 893619 Alberta Ltd., of which Mr. Foster is the President and Director, and over which Mr. Foster has sole voting and investment power. Mr. Foster is an affiliate of a broker-dealer.
7.
Mr. Coffield also holds 29,985 shares of common stock and warrants to acquire an additional 14,993 shares of common stock at an exercise price of $1.25 per share, and 1,689,683 exchangeable shares issued on November 10, 2005 in connection with the share exchange. Mr. Coffield serves as our President, Chief Executive Officer
8 and as a member of Gran Tierra's Board of Directors (the "Board").
9 Mr. Dane also holds 499,985 shares of common stock and warrants to acquire an additional 249,993 shares of common stock at an exercise price of $1.25 per share.
10 James Garson has the power to vote and dispose of the common shares being registered on behalf of Datavision Computer Video, Inc.
11 David Malm has the power to vote and dispose of the common shares being registered on behalf of David Malm Anaesthesia Inc.
12 Mr. Westlund serves as Geophysics Manager for Gran Tierra.
13 Includes 158,730 exchangeable shares issued on November 10, 2005 in connection with the share exchange. Mr. Wright also holds 250,000 shares of common stock and warrants to acquire an additional 250,000 shares of common stock at an exercise price of $1.25 per share.
14 Mr. Antonsen also holds warrants to acquire 20,000 shares of common stock at an exercise price of $1.25 per share, acquired in the sale of units to accredited investors we conducted on October 27, 2005 and December 14, 2005 (the "Second 2005 Offering").
15 Mr. Muchowski also holds 158,730 exchangeable shares issued on November 10, 2005 in connection with the share exchange.
16 Frank J. Metyko Jr., Mark J. Metyko and Kurt F. Metyko, trustees, have the power to vote and dispose of the common shares being registered on behalf of the Frank Metyko Residuary Trust.
17 Mr. and Mrs. Hoy also hold 15,619 shares of common stock acquired upon exercise of warrants acquired in the First 2005 Offering.
18 Grant Sims, custodian, has the power to vote and dispose of the common shares being registered on behalf of the Eric R. Sims.
19 Grant Sims, custodian, has the power to vote and dispose of the common shares being registered on behalf of the Ryan S. Sims.
20 Grant Sims, custodian, has the power to vote and dispose of the common shares being registered on behalf of Scott A. Sims.
21 Mr. Hodgins also holds warrants to acquire 15,619 shares of common stock at an exercise price of $1.25 per share.
22 Mr. Sedun also holds warrants to acquire 62,491 shares of common stock at an exercise price of $1.25 per share.
23 This selling stockholder is a broker-dealer and an affiliate of a broker-dealer.
24 Ms. Campbell serves as Corporate Treasurer for Gran Tierra.
25 Jeremy Spring has the power to vote and dispose of the common shares being registered on behalf of Hollyvale Limited. Includes warrants to acquire 8,500 shares of common stock at an exercise price of $1.25 per share.
26 Noel Humphrey has the power to vote and dispose of the common shares being registered on behalf of the Humphrey Family Limited Partnership.
27 John Laurie Hunter has the power to vote and dispose of the shares being registered on behalf of the Hunter Capital LLC Defined Benefit Pension Plan.
28 Yoav Roth and John Doscas have the power to vote and dispose of common shares being registered on behalf of Hudson Bay Overseas Fund, Ltd. Both Yoav Roth and John Doscas disclaim beneficial ownership of shares held by Hudson Bay Overseas Fund, Ltd.
29 This selling stockholder is an affiliate of a broker-dealer.
30 This selling stockholder is a broker-dealer and an affiliate of a broker-dealer.
31 Joshua Silverman has the power to vote and dispose of the common shares being registered on behalf of Iroquois Master Fund Ltd. Mr. Silverman disclaims beneficial ownership of the shares held by Iroquois Master Fund Ltd.
32 James R. Timmins has the power to vote and dispose of the common shares being registered on behalf of James R. Timmins and Alice M. Timmins.
33 Includes 349,981 shares of common stock and warrants to acquire an additional 174,991 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering, and an additional 100,000 shares of common stock and warrants to acquire an additional 50,000 shares of common stock at an exercise price of $1.25 per share, acquired in the Second 2005 Offering. Also includes 1,688,889 exchangeable shares issued on November 10, 2005 in connection with the share exchange. Mr. Scott serves as the Chairman of the Board.
34 This selling stockholder is a broker-dealer.
35 Includes 25,000 shares of common stock and warrants to acquire an additional 12,500 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering, held by IRA for the benefit of Jodi Malanga/Pershing LLC as Custodian.
26 Mr. Cangini serves as New Ventures Manager for Gran Tierra Argentina S.A., a subsidiary of Gran Tierra Energy.
37 Lloyd Guenther has the power to vote and dispose of the common shares being registered on behalf of LSM Business Services, Ltd., and also holds 25,000 shares of common stock and warrants to acquire an additional 15,625 shares of common stock at an exercise price of $1.25 per share, acquired in the Second 2005 Offering.
9.
Edgar Filing: GRAN TIERRA ENERGY, INC. - Form 424B3
Mr. Wei also holds 1,689,683 exchangeable shares issued on November 10, 2005 in connection with the share exchange. Mr. Wei serves as our Vice-President, Operations.
39 This selling stockholder is an affiliate of a broker-dealer.
40 Svein Garberg has the power to vote and dispose of the common shares being registered on behalf of MP Pensjon.
41 Ms. Smith served as a member of our Board until March 27, 2008. Includes 433,906 shares of common stock acquired in the First 2005 Offering. Also includes warrants to acquire an additional 197,905 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering, held by Ms. Smith or Mr. John Long.
42 Includes 1,587,302 exchangeable shares issued on November 10, 2005 in connection with the share exchange and an additional 525,000 shares of common stock held by Perfco Investments Ltd. Mr. Walter Dawson is the sole owner of Perfco Investments Ltd. and has sole investment and voting power over the exchangeable shares and shares of common stock owned by Perfco Investments Ltd. In addition, Mr. Dawson directly holds 101,587 exchangeable shares issued on November 10, 2005 in connection with the share exchange, and 300,000 shares of common stock acquired in the Second 2005 Offering. Mr. Dawson disclaims beneficial ownership of 158,730 exchangeable shares held by Mr. Dawson's spouse. Mr. Dawson is a member of our Board.
43 Paul Sicotte has the power to vote and dispose of the common shares being registered on behalf of PGS Holdings Ltd.
44 Arild Eide is a Portfolio Manager at RAB Capital PLC, the Investment Manager of RAB American Opportunities Fund Limited. By virtue of his position at RAB Capital PLC, Mr. Eide is deemed to hold investment power and voting control over the common shares being registered on behalf of RAB American Opportunities Fund Limited.
45 Mr. Orunesu also holds 1,689,683 exchangeable shares issued on November 10, 2005 in connection with the share exchange. Mr. Orunesu is the President of Gran Tierra Argentina S.A., a subsidiary of Gran Tierra.
46 Francis Mailhot has the power to vote and dispose of the common shares being registered on behalf of Rahn and Bodmer.
47 Mr. Machin also holds 25,000 shares of common stock acquired in the First 2005 Offering.
48 Mr. Macleod also holds 30,000 shares of common stock and warrants to acquire an additional 15,000 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering.
49 This selling stockholder is an affiliate of a broker-dealer.
50 Ms. Santos also holds warrants to acquire 15,625 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering.
51 This selling stockholder is an affiliate of a broker-dealer.
52 Ms. Messner serves as Office Manager for Gran Tierra.
53 Sue Minton Harris, trustee, has the power to vote and dispose of the common shares being registered on behalf of Pinkye Lou Blair Estate Trust U/W DTD 6/15/91. This selling stockholder is an affiliate of a broker-dealer.
54 Francis P. Knuettel has the power to vote and dispose of the common shares being registered on behalf of the Knuettel Family Trust.
55 James Corfman has the power to vote and dispose of the common shares being registered on behalf of Theseus Fund.
56 Tom Juda and Nancy Juda, co-trustees, have the power to vote and dispose of the common shares being registered on behalf of Tom Juda & Nancy Juda Living Tr DTD 5/3/95.
57 Scott Stone, manager, has the power to vote and dispose of the common shares being registered on behalf of TWM Associates, LLC.
58 Evan Smith, portfolio manager, has the power to vote and dispose of the common shares being registered on behalf of US Global Investors — Global Resources Fund.
59 Includes 895,238 exchangeable shares issued on November 10, 2005 in connection with the share exchange. Mr. Johnson also holds warrants to acquire an additional 62,493 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. In addition, KristErin Resources Ltd., a private family-owned business of which Mr. Johnson is the President and has sole voting and investment power, holds 396,825 exchangeable shares issued on November 10, 2005 in connection with the share exchange. Mr. Johnson serves as a member of our Board.
60 Sean Molloy, Portfolio Manager, has the power to vote and dispose of the common shares being registered on behalf of GSEC Warrant Strategies Fund LLC. Reflects transfer of warrant subsequent to February 15, 2009.
61 Includes 158,730 exchangeable shares issued on November 10, 2005 in connection with the share exchange.
62 Stuart Zimmer and Craig Lucas have the power to vote and dispose of the common shares being registered on behalf of ZLP Master Opportunity Fund, Ltd.
63 Includes 79,365 exchangeable shares issued on November 10, 2005 in connection with the share exchange, and 175,000 shares of common stock and warrants to acquire an additional 87,500 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. Glenn Gurr, President of 1053361 Alberta Ltd., has sole voting and investment power over the shares held by 1053361 Alberta Ltd.
64 Includes 66,667 shares of common stock acquired on March 12, 2009 upon exercise of warrants, purchased in our June 2006 offering.
65 Includes 191,094 shares of common stock acquired in the First 2005 Offering. Also includes warrants to acquire an additional 114,595 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering, held by Mr. Long or Ms. Nadine Smith.
Shares Being Offered From Prior Financings
This prospectus covers shares, including shares underlying warrants, sold in our other private equity offerings to "accredited investors" as defined by Rule 501(a) under the Securities Act pursuant to an exemption from registration provided in Regulation D, Rule 506 under Section 4(2) of the Securities Act. The selling stockholders may from time to time offer and sell under this prospectus any or all of the shares listed opposite each of their names below. We are required, under a registration rights agreement, to register for resale the shares of our common stock described in the table below.
The following table sets forth information about the number of shares beneficially owned by each selling stockholder that may be offered from time to time under this prospectus. Certain selling stockholders are deemed to be "underwriters" as defined in the Securities Act. Any profits realized by these selling stockholder may be deemed to be underwriting commissions. See "Plan of Distribution."
The table below has been prepared based upon the information furnished to us by the selling stockholders as of February 15, 2009. The selling stockholders identified below may have sold, transferred or otherwise disposed of some or all of their shares since the date on which the information in the following table is presented in transactions using the registration statement of which this prospectus forms a part or in transactions exempt from or not subject to the registration requirements of the Securities Act. Information concerning the selling stockholders may change from time to time and, if necessary, we will amend or supplement this prospectus accordingly. We cannot give an estimate as to the number of shares of common stock that will be held by the selling stockholders upon termination of this offering because the selling stockholders may offer some or all of their common stock under the offering contemplated by this prospectus. The total number of shares that may be sold hereunder will not exceed the number of shares offered hereby. Please read the section entitled "Plan of Distribution" in this prospectus.
We have been advised, as noted below in the footnotes to the table, none of the selling stockholders are a broker-dealer and four of the selling stockholders are affiliates of broker-dealers. We have been advised that each such affiliate of a broker-dealer purchased our common stock and warrants in the ordinary course of business, not for resale, and at the time of purchase, did not have any agreements or understandings, directly or indirectly, with any
person to distribute the related common stock.
The following table sets forth the name of each selling stockholder, the nature of any position, office, or other material relationship, if any, which the selling stockholder has had, within the past three years, with us or with any of our predecessors or affiliates, and the number of shares of our common stock beneficially owned by such stockholder before this offering. The number of shares owned are those beneficially owned, as determined in accordance with Rule 13d-3 of the Exchange Act. Under such rule, beneficial ownership includes any shares of common stock as to which a person has sole or shared voting power or investment power and any shares of common stock which the person has the right to acquire within 60 days through the exercise of any option, warrant or right, through conversion of any security or pursuant to the automatic termination of a power of attorney or revocation of a trust, discretionary account or similar arrangement, and such information is not necessarily indicative of beneficial ownership for any other purpose.
Beneficial ownership is calculated based on 238,710,473 shares of our common stock outstanding as of February 15, 2009, which includes 10,984,126 exchangeable shares of Gran Tierra Goldstrike Inc. issued to holders of Gran Tierra Canada common stock and 31,519,884 exchangeable shares of Gran Tierra Exchangeco Inc. issued to holders of Solana common stock. In computing the number of shares beneficially owned by a person and the percentage of ownership of that person, shares of common stock subject to options or warrants held by that person that are currently exercisable or become exercisable within 60 days of February 15, 2009 are deemed outstanding even if they have not actually been exercised. Those shares, however, are not deemed outstanding for the purpose of calculating the beneficial ownership of any other selling stockholder. The persons and entities named in the table have sole voting and sole investment power with respect to the shares set forth opposite the stockholder's name, subject to community property laws, where applicable.
Shares
Shares of Common Percentage
* Less than 1.0%.
(a) Assumes all of the shares of common stock and all shares of common stock underlying warrants registered in this offering are sold in the offering.
† We were unable to obtain updated information from this selling stockholder. Shares of common stock being offered based on information provided as of December 20, 2007. Shares of common stock being offered upon exercise of warrants, as applicable, based on information available as of February 15, 2009.
†† We were unable to obtain updated information from this selling stockholder. Shares of common stock being offered based on information provided as of February 2, 2007. Shares of common stock being offered upon exercise of warrants, as applicable, based on information available as of February 15, 2009.
1 Includes 5,000 shares of common stock and warrants to acquire an additional 2,500 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering.
2 Includes 15,625 shares of common stock acquired in the First 2005 Offering.
3 Includes 32,000 shares of common stock and warrants to acquire an additional 16,000 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering.
4 Includes 474,000 shares of common stock and warrants to acquire an additional 77,500 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. R. Gelant and U. Fricher have the power to vote and dispose of the shares being registered on behalf of Bank Sal. Oppenheimer Jr.
5 Includes 99,988 shares of common stock and warrants to acquire an additional 49,994 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering.
6 Includes 50,000 shares of common stock and warrants to acquire an additional 25,000 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. Includes 158,703 shares of common stock issued in exchange for exchangeable shares originally issued on November 10, 2005 in connection with the share exchange.
7 Includes 92,500 shares of common stock acquired as part of the First 2005 Offering. Richard Groom has the power to vote and dispose of the common shares being registered on behalf of Bashaw Fertilizer Ltd.
8 Includes 19,985 shares of common stock and warrants to acquire an additional 9,993 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering.
9 Includes 31,250 shares of common stock and warrants to acquire 15,625 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering.
10 Includes warrants to acquire 15,625 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering.
11 Includes 50,000 shares of common stock and warrants to acquire an additional 25,000 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. Ms. Coffield is the mother of Dana Coffield, who serves as our President, Chief Executive Officer and as a member of the Board.
12 Includes 75,000 shares of common stock and warrants to acquire an additional 124,991 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. Mr. Oakes also holds 41,666 shares of common stock and warrants to acquire an additional 89,995 shares of common stock at an exercise price of $1.05 per share, acquired in the June, 2006 private offering.
13 Includes warrants to acquire 16,000 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. Mr. Stockdale is an affiliate of a broker-dealer.
14 Includes warrants to acquire 12,491 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. Mr. Foster also holds 79,365 exchangeable shares issued on November 10, 2005 in connection with the share exchange, and 39,273 shares of common stock and warrants to acquire an additional 24,996 shares of common stock at an exercise price of $1.05 per share, acquired in the June, 2006 private offering. Also includes 99,981 shares of common stock and 49,991 shares of common stock issuable pursuant to warrants beneficially held by 893619 Alberta Ltd., of which Mr. Foster is the President and Director, and over which Mr. Foster has sole voting and investment power. Mr. Foster is an affiliate of a broker-dealer.
15 Includes 29,985 shares of common stock and warrants to acquire an additional 14,993 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. Mr. Coffield also holds 66,667 shares of common stock and warrants to acquire an additional 33,334 shares of common stock at an exercise price of $1.05 per share, acquired in the June, 2006 private offering, and 1,689,683 exchangeable shares issued on November 10, 2005 in connection with the share exchange. Mr. Coffield serves as our President, Chief
Executive Officer and as a member of the Board.
16 Includes 499,985 shares of common stock and warrants to acquire an additional 249,993 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. Mr. Dane also holds 66,666 shares of common stock and warrants to acquire an additional 33,334 shares of common stock at an exercise price of $1.05 per share, acquired in the June, 2006 private offering.
17 Includes 250,000 shares of common stock and warrants to acquire an additional 250,000 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. Mr. Wright also holds 158,730 exchangeable shares issued on November 10, 2005 in connection with the share exchange, and 500,000 shares of common stock and warrants to acquire an additional 250,000 shares of common stock at an exercise price of $1.05 per share, acquired in the June, 2006 private offering.
18 Includes warrants to acquire 21,875 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering.
19 Includes warrants to acquire 20,000 shares of common stock at an exercise price of $1.25 per share, acquired in the Second 2005 Offering. Mr. Antonsen also holds warrants to acquire an additional 27,500 shares of common stock at an exercise price of $1.05 per share, acquired in the June, 2006 private offering.
20 Includes 12,000 shares of common stock and warrants to acquire an additional 6,000 shares of common stock at an exercise price of $1.25 per share, acquired in the Second 2005 Offering.
21 Includes warrants to acquire 15,625 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering.
22 Includes 25,000 shares of common stock and warrants to acquire an additional 12,500 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering.
23 Includes warrants to acquire 21,875 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering.
24 Includes 15,619 shares of common stock acquired in the First 2005 Offering. The selling stockholder also holds 8,500 shares of common stock acquired upon exercise of warrants purchased in the June, 2006 private offering.
25 Includes warrants to acquire 15,619 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. The selling stockholder also holds warrants to acquire an additional 8,500 shares of common stock at an exercise price of $1.05 per share, acquired in the June, 2006 private offering.
26 Includes warrants to acquire 62,491 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. The selling stockholder also holds warrants to acquire an additional 50,000 shares of common stock at an exercise price of $1.05 per share, acquired in the June, 2006 private offering.
27 Includes warrants to acquire 8,500 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. The selling stockholder also holds 17,000 shares of common stock acquired in the June, 2006 private offering. Jeremy Spring has the power to vote and dispose of the common shares being registered on behalf of Hollyvale Limited.
28 Includes 31,250 shares of common stock and warrants to acquire an additional 15,625 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. Mr. Powell is an affiliate of a broker-dealer.
29 Includes 35,000 shares of common stock and an additional 25,000 shares of common stock acquired upon exercise of warrants acquired in the First 2005 Offering.
30 Includes warrants to acquire 15,000 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering.
31 Includes 24,981 shares of common stock and warrants to acquire an additional 12,491 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering.
32 Includes 31,250 shares of common stock and warrants to acquire an additional 15,625 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. Jason Soprovich has the power to vote and dispose of the common shares being registered on behalf of Jason Soprovich Realty.
33 Includes 349,981 shares of common stock and warrants to acquire an additional 174,991 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering, and an additional 100,000 shares of common stock and warrants to acquire an additional 50,000 shares of common stock at an exercise price of $1.25 per share, acquired in the Second 2005 Offering. Mr. Scott also holds 100,000 shares of common stock and warrants to acquire 50,000 shares of common stock at an exercise price of $1.05 per share, acquired in our June, 2006 private offering, as well as 1,688,889 exchangeable shares issued on November 10, 2005 in connection with the share exchange. Mr. Scott serves as our Chairman of the Board.
34 Allan Gilders has sole investment and voting power over the shares of common stock owned by Jim and Kathleen Gilders.
35 Includes 25,000 shares of common stock and warrants to acquire an additional 12,500 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. The selling stockholders also hold 17,000 shares of common stock and warrants to acquire an additional 8,500 shares of common stock at an exercise price of $1.05 per share, held by IRA for the benefit of Jodi Malanga/Pershing LLC as Custodian, acquired in the June, 2006 private offering.
36 Includes 5,000 shares of common stock and warrants to acquire an additional 2,500 shares of common stock at an exercise price of $1.25 per share, acquired in the Second 2005 Offering.
37 Includes 73,250 shares of common stock, acquired in the First 2005 Offering.
38 Includes warrants to acquire 28,125 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering.
39 Includes 25,000 shares of common stock and warrants to acquire an additional 15,625 shares of common stock at an exercise price of $1.25 per share, acquired in the Second 2005 Offering. The selling stockholder also holds warrants to acquire an additional 10,000 shares of common stock at an exercise price of $1.05 per share, acquired in the June, 2006 private offering. Lloyd Guenther has the power to vote and dispose of the common shares being registered on behalf of LSM Business Services, Ltd.
40 Includes 31,250 shares of common stock and warrants to acquire an additional 15,625 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering.
41 Includes 124,981 shares of common stock and warrants to acquire an additional 62,491 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering.
42 Includes 433,906 shares of common stock acquired in the First 2005 Offering. Also includes warrants to acquire an additional 197,905 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering, held by Ms. Smith or Mr. John Long. Ms. Smith also holds 69,425 shares of common stock and a warrant to acquire an additional 31,664 shares of common stock at an exercise price of $1.05 per share, acquired in the June, 2006 private offering. Ms. Smith served as a member of our Board until March 27, 2008. The information presented is as of February 11, 2008.
43 Includes 5,000 shares of common stock and warrants to acquire an additional 2,500 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering.
44 Includes 31,250 shares of common stock and warrants to acquire an additional 15,625 shares of common stock at an exercise price of $1.25 per share, acquired in the Second 2005 Offering.
45 Includes warrants to acquire 14,000 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering.
46 Includes warrants to acquire 20,000 shares of common stock at an exercise price of $1.25 per share, acquired in the Second 2005 Offering. Tom Kusumoto has the power to vote and dispose of the common shares being registered on behalf of North Group Limited.
47 Includes 525,000 shares of common stock acquired in the First 2005 Offering. The selling stockholder also holds 300,000 shares of common stock acquired in the June, 2006 private offering, and 1,587,302 exchangeable shares issued on November 10, 2005 in connection with the share exchange. Walter Dawson is the sole owner
of Perfco Investments Ltd and has sole investment and voting power over the shares of common stock owned by Perfco and disclaims beneficial ownership of such shares. Mr. Dawson is a member of our Board
48 Includes 25,000 shares of common stock and warrants to acquire an additional 12,500 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. Jeffrey Scott, Chairman of the Board, is the President of Postell Energy Co. Ltd. and has the power to vote and dispose of the common shares being registered on its behalf.
49 Includes 50,000 shares of common stock acquired in the Second 2005 Offering. Cary Pinkowski has the power to vote and dispose of the common shares being registered on behalf of Prussian Capital Corp.
50 Includes 10,000 shares of common stock and warrants to acquire an additional 15,625 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering.
51 The selling stockholder also holds 17,500 shares of common stock acquired in the June, 2006 private offering.
52 Includes 124,985 shares of common stock and warrants to acquire an additional 62,493 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. The selling stockholder also holds 40,000 shares of common stock and warrants to acquire an additional 20,000 shares of common stock at an exercise price of $1.05 per share, acquired in the June, 2006 private offering.
53 Includes warrants to acquire 16,250 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering.
54 Includes 25,000 shares of common stock and warrants to acquire an additional 12,500 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering.
55 Includes 30,000 shares of common stock warrants to acquire 15,000 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. The selling stockholder also holds 16,666 shares of common stock and warrants to acquire an additional 8,333 shares of common stock at an exercise price of $1.05 per share, acquired in the June, 2006 private offering.
56 Includes warrants to acquire 15,625 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. The selling stockholder also holds 7,000 shares of common stock and warrants to acquire an additional 8,500 shares of common stock at an exercise price of $1.05 per share, acquired in the June, 2006 private offering.
57 Includes warrants to acquire 31,250 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. Tom and Hydri Kusumoto have the power to vote and dispose of the common shares being registered on behalf of Sanovest Holdings Ltd.
58 Includes 22,500 shares of common stock and warrants to acquire an additional 11,250 shares of common stock at an exercise price of $1.25 per share, acquired in the Second 2005 Offering.
59 Includes 1,250,000 shares of common stock and warrants to acquire an additional 625,000 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. Roderick Frasier has the power to vote and dispose of the common shares being registered on behalf of Standard Bank PLC.
60 Includes 10,000 shares of common stock and warrants to acquire an additional 5,000 shares of common stock at an exercise price of $1.25 per share, acquired in the Second 2005 Offering.
61 Includes 18,750 shares of common stock and warrants to acquire an additional 9,375 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering.
62 Includes warrants to acquire 15,625 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. Jim Brewster has the power to vote and dispose of the common shares being registered on behalf of The Brewster Family Trust.
63 Includes warrants to acquire 7,500 shares of common stock at an exercise price of $1.25 per share, acquired in the Second 2005 Offering.
64 Includes warrants to acquire 62,493 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. The selling stockholder also holds warrants to acquire an additional 50,003 shares of
common stock at an exercise price of $1.05 per share, acquired in the June, 2006 private offering, and 895,238 exchangeable shares issued on November 10, 2005 in connection with the share exchange. In addition, KristErin Resources Ltd., a private family-owned business of which Mr. Johnson is the President and has sole voting and investment power, holds 396,825 exchangeable shares issued on November 10, 2005 in connection with the share exchange. Mr. Johnson serves as a member of our Board.
65 Includes warrants to acquire 25,000 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. Bruce Nurse has the power to vote and dispose of the common shares being registered on behalf of Wildcat Investments Ltd.
66 Includes 262,500 shares of common stock and warrants to acquire 131,250 shares of common stock at an exercise price of $1.25 per share, acquired in a private placement offering completed on February 2, 2006 (the "Third 2005 Offering"). Mr. McCluskey is an affiliate of a broker-dealer.
67 Includes 175,000 shares of common stock and warrants to acquire an additional 87,500 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. The selling stockholder also holds 79,365 exchangeable shares issued on November 10, 2005 in connection with the share exchange, and 100,000 shares of common stock and warrants to acquire an additional 50,000 shares of common stock at an exercise price of $1.05 per share, acquired in the June, 2006 private offering. Glenn Gurr, President of 1053361 Alberta Ltd. has sole voting and investment power over these shares.
68 Includes warrants to acquire 15,993 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. Wade MacBain has the power to vote and dispose of the common shares being registered on behalf of 1087741 Alberta Ltd.
69 Includes 8,000 shares of common stock and warrants to acquire an additional 4,000 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. Serge Bonnet has the power to vote and dispose of the common shares being registered on behalf of 666977 Alberta Ltd.
70 Includes 99,981 shares of common stock and an additional 49,991 shares of common stock issued on April 2, 2009 upon exercise of warrants acquired in the First 2005 Offering. Dale Foster has the power to vote and dispose of the common shares being registered on behalf of 893619 Alberta Ltd. Mr. Foster is an affiliate of a broker-dealer.
71 Includes 191,094 shares of common stock acquired in the First 2005 Offering. Also includes warrants to acquire an additional 114,595 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering, held by Mr. Long or Ms. Nadine Smith. Mr. Long also holds 30,575 shares of common stock and a warrant to acquire an additional 18,336 shares of common stock at an exercise price of $1.05 per share, acquired in the June, 2006 private offering. The information presented is as of February 11, 2008.
72 Includes 16,769 shares of common stock held by Chapel Rock Holdings Ltd., acquired in the First 2005 Offering. Wayne Hucik has the power to vote and dispose of the common shares being registered on behalf of Chapel Rock Holdings Ltd.
73 Includes warrants to acquire 21,875 shares of common stock at an exercise price of $1.25 per share, acquired in the First 2005 Offering. Also includes 16,769 shares of common stock held by Chapel Rock Holdings Ltd., acquired in the First 2005 Offering. Mr. Hucik has the power to vote and dispose of the common shares being registered on behalf of Chapel Rock Holdings Ltd.
74
Includes 300,000 shares of common stock acquired in the Second 2005 Offering. Mr. Dawson also holds 101,587 exchangeable shares issued on November 10, 2005 in connection with the share exchange, and an additional 825,000 shares of common stock and 1,587,302 exchangeable shares issued on November 10, 2005 in connection with the share exchange, held by Perfco Investments Ltd., of which Mr. Dawson is the President and sole owner. Mr. Dawson has sole investment and voting power over the exchangeable shares and shares of common stock owned by Perfco Investments Ltd. Mr. Dawson disclaims beneficial ownership of 158,730 exchangeable shares held by Mr. Dawson's spouse. Mr. Dawson is a member of our Board.
This prospectus covers the offer and sale of shares issued or issuable to the selling stockholders upon exchange of exchangeable shares of Gran Tierra Goldstrike, Inc., an indirect subsidiary of Gran Tierra, previously held or currently held by the selling stockholders. The exchangeable shares were issued to the selling stockholders in a private offering on November 10, 2005. This prospectus also covers the offer and sale of 720,814 shares issuable upon exercise of warrants held by two selling stockholders issued in connection with a private placement in June 2006.
The following table sets forth information about the number of shares beneficially owned by each selling stockholder that may be offered from time to time under this prospectus. Certain selling stockholders are deemed to be "underwriters" as defined in the Securities Act. Any profits realized by these selling stockholder may be deemed to be underwriting commissions. See "Plan of Distribution."
The table below has been prepared based upon the information furnished to us by the selling stockholders. The selling stockholders identified below may have sold, transferred or otherwise disposed of some or all of their shares since the date on which the information in the following table is presented in transactions exempt from or not subject to the registration requirements of the Securities Act. Information concerning the selling stockholders may change from time to time and, if necessary, we will amend or supplement this prospectus accordingly. We cannot give an estimate as to the number of shares of common stock that will be held by the selling stockholders upon termination of this offering because the selling stockholders may offer some or all of their common stock under the offering contemplated by this prospectus. The total number of shares that may be sold hereunder will not exceed the number of shares offered hereby. Please read the section entitled "Plan of Distribution" in this prospectus.
We have been advised, as noted below in the footnotes to the table, two of the selling stockholders are broker-dealers and one of the selling stockholders is an affiliate of a broker-dealers. We have been advised that such affiliate of a broker-dealer purchased our common stock and warrants in the ordinary course of business, not for resale, and at the time of purchase, did not have any agreements or understandings, directly or indirectly, with any person to distribute the related common stock.
The following table sets forth the name of each selling stockholder, the nature of any position, office, or other material relationship, if any, which the selling stockholder has had, within the past three years, with us or with any of our predecessors or affiliates, and the number of shares of our common stock beneficially owned by such stockholder before this offering. The number of shares owned are those beneficially owned, as determined in accordance with Rule 13d-3 of the Exchange Act. Under such rule, beneficial ownership includes any shares of common stock as to which a person has sole or shared voting power or investment power and any shares of common stock which the person has the right to acquire within 60 days through the exercise of any option, warrant or right, through conversion of any security or pursuant to the automatic termination of a power of attorney or revocation of a trust, discretionary account or similar arrangement, and such information is not necessarily indicative of beneficial ownership for any other purpose.
Beneficial ownership is calculated based on 238,710,473 shares of our common stock outstanding as of February 15, 2009, which includes 10,984,126 exchangeable shares of Gran Tierra Goldstrike Inc. issued to holders of Gran Tierra Canada common stock and 31,519,884 exchangeable shares of Gran Tierra Exchangeco Inc. issued to holders of Solana common stock. In computing the number of shares beneficially owned by a person and the percentage of ownership of that person, shares of common stock subject to options or warrants held by that person that are currently exercisable or become exercisable within 60 days of February 15, 2009 are deemed outstanding even if they have not actually been exercised. Those shares, however, are not deemed outstanding for the purpose of calculating the beneficial ownership of any other selling stockholder. The persons and entities named in the table have sole voting and sole investment power with respect to the shares set forth opposite the stockholder's name, subject to community property laws, where applicable.
* Less than one percent.
† We were unable to obtain updated information from this selling stockholder. Shares of common stock beneficially owned prior to offering based on information provided as of November 15, 2007. Shares of common stock being offered upon exchange of exchangeable shares, exercise of warrants and stock options, as applicable, based on information available as of February 15, 2009.
1 Includes 1,688,889 shares of common stock issuable upon the exchange of exchangeable shares and 266,666 shares of common stock issuable pursuant to options and 274,991 shares of common stock issuable pursuant to warrants exercisable within 60 days of February 15, 2009. Mr. Scott serves as our Chairman of the Board.
2 Includes 101,587 shares of common stock issuable upon the exchange of exchangeable shares and 158,333 shares of common stock issuable pursuant to options exercisable within 60 days of February 15, 2009. Also includes 825,000 shares of common stock and 1,587,302 shares of common stock issuable upon the exchange of exchangeable shares held by Perfco Investments Ltd., of which Mr. Dawson is the President and sole owner. Also includes 158,730 shares of common stock issuable upon the exchange of exchangeable shares held by Mr. Dawson's spouse. Mr. Dawson disclaims beneficial ownership of the 158,730 shares of common stock issuable to his spouse. Mr. Dawson serves as a member of the Board.
3 Includes 158,730 shares of common stock issuable upon the exchange of exchangeable shares. Does not include shares beneficially owned by Margaret Dawson's husband, Walter Dawson, or Perfco Investments Ltd. See notes 2 and 4 to this table.
4 Includes 1,587,302 shares of common stock issuable upon the exchange of exchangeable shares. Walter Dawson, President and sole owner of Perfco Investments Ltd., has sole investment and voting power over the shares of common stock owned by Perfco Investments Ltd. Mr. Dawson is a member of the Board.
5 Includes 895,238 shares of common stock issuable upon the exchange of exchangeable shares and 158,333 shares of common stock issuable pursuant to options exercisable within 60 days of February 15, 2009, and 112,496 shares of common stock issuable pursuant to warrants exercisable within 60 days of February 15, 2009. In addition, KristErin Resources Ltd., a private family-owned business of which Mr. Johnson is the President and has sole voting and investment power, holds 396,825 shares of common stock issuable upon the exchange of exchangeable shares. Mr. Johnson serves as a member of the Board.
6 Consists solely of shares of common stock issuable upon the exchange of exchangeable shares. Verne Johnson, President and Sole Owner of KristErin Resources Inc. has the power to vote and invest the shares of common stock being registered on behalf of KristErin Resources Inc. Mr. Johnson is a member of the Board.
7 Includes 1,689,683 shares of common stock issuable upon the exchange of exchangeable shares and 254,167 shares of common stock issuable pursuant to options exercisable within 60 days of February 15, 2009 and 40,000 shares of common stock issuable pursuant to warrants that Mr. Orunesu has the right to acquire within 60 days of February 15, 2009. Mr. Orunesu is the President of Gran Tierra Argentina S.A., a subsidiary of Gran Tierra.
8 Includes 1,689,683 shares of common stock issuable upon the exchange of exchangeable shares and 375,000 shares of common stock issuable pursuant to options exercisable within 60 days of February 15, 2009 and 48,327 shares of common stock issuable pursuant to warrants exercisable within 60 days of February 15, 2009. Dana Coffield serves as our President, Chief Executive Officer and as a member of the Board.
9 Includes 1,689,683 shares of common stock issuable upon the exchange of exchangeable shares, 262,500 shares of common stock issuable pursuant to options exercisable within 60 days of February 15, 2009. Mr. Wei is our Vice President, Operations.
10 Includes 158,730 shares of common stock issuable upon the exchange of exchangeable shares and 50,000 shares of common stock issuable pursuant to warrants exercisable within 60 days of February 15, 2009.
11 Includes 79,365 shares of common stock issuable upon the exchange of exchangeable shares and 37,487 shares of common stock issuable pursuant to warrants exercisable within 60 days of February 15, 2009. Also includes 99,981 shares of common stock and 49,991 shares of common stock issuable pursuant to warrants exercisable within 60 days of February 15, 2009 beneficially held by 893619 Alberta Ltd., of which Mr. Foster is the President and Director, and over which Mr. Foster has sole voting and investment power. Mr. Foster is an affiliate of a broker dealer.
12 Consists solely of shares of common stock issuable upon the exchange of exchangeable shares.
13 Includes 158,730 shares of common stock issuable upon the exchange of exchangeable shares and 500,000 shares of common stock issuable pursuant to warrants that are exercisable within 60 days of February 15, 2009.
14 Consists solely of shares of common stock issuable upon the exchange exchangeable shares. Earle McMaster, the President and CEO of Slapco Ltd., may be deemed to have voting and investment power over the shares being registered on behalf of Slapco Ltd.
15 Includes 158,730 shares of common stock issuable upon the exchange of exchangeable shares and 50,000 shares of common stock issuable pursuant to warrants exercisable within 60 days of February 15, 2009.
16 Includes 79,365 shares of common stock issuable upon the exchange of exchangeable shares and 137,500 shares of common stock issuable pursuant to warrants exercisable within 60 days of February 15, 2009. Glen Gurr, President of 1053361 Alberta Ltd., and Rhonda Trueman, Vice President of 1053361 Alberta Ltd., have the power to vote and invest the shares registered on behalf of 1053361 Alberta Ltd.
17 Consists solely of shares issuable upon the exercise of warrants issued in connection with the June 2006 private offering. This selling stockholder is a broker-dealer, Mr. Ben Morris, Chief Executive Officer of SMH Capital Inc., has the power to vote and invest the shares registered on behalf of SMH Capital Inc.
18 Consists solely of shares issuable upon the exercise of warrants issued in connection with the June 2006 private offering. This selling stockholder is a broker-dealer. Mr. Brad Kotush, Chief Financial Officer of Canaccord Capital Corporation, has the power to vote and invest the shares registered on behalf of Canaccord Capital Corporation.
PLAN OF DISTRIBUTION
The selling stockholders may, from time to time, sell any or all of their shares of common stock on any stock exchange, market or trading facility on which the shares are traded or in private transactions. If the shares of common stock are sold through underwriters or broker-dealers, the selling stockholders will be responsible for underwriting discounts or commissions or agent's commissions. These sales may be at fixed prices, at prevailing market prices at the time of the sale, at varying prices determined at the time of sale, or negotiated prices. The selling stockholders may use any one or more of the following methods when selling shares:
* any national securities exchange or quotation service on which the securities may be listed or quoted at the time of sale;
* ordinary brokerage transactions and transactions in which the broker-dealer solicits purchasers;
* block trades in which the broker-dealer will attempt to sell the shares as agent but may position and resell a portion of the block as principal to facilitate the transaction;
* purchases by a broker-dealer as principal and resale by the broker-dealer for its account;
* transactions otherwise than on these exchanges or systems or in the over-the-counter market;
* through the writing of options, whether such options are listed on an options exchange or otherwise;
* an exchange distribution in accordance with the rules of the applicable exchange;
* privately negotiated transactions;
* short sales;
* broker-dealers may agree with the selling stockholders to sell a specified number of such shares at a stipulated price per share;
* a combination of any such methods of sale; and
* any other method permitted pursuant to applicable law.
The selling stockholders may also sell shares under Rule 144 under the Securities Act, if available, rather than under this prospectus.
The selling stockholders may also engage in short sales against the box, puts and calls and other transactions in our securities or derivatives of our securities and may sell or deliver shares in connection with these trades.
Broker-dealers engaged by the selling stockholders may arrange for other broker-dealers to participate in sales. Broker-dealers may receive commissions or discounts from the selling stockholders (or, if any broker-dealer acts as agent for the purchaser of shares, from the purchaser) in amounts to be negotiated. The selling stockholders do not expect these commissions and discounts to exceed what is customary in the types of transactions involved. Any profits on the resale of shares of common stock by a broker-dealer acting as principal might be deemed to be underwriting discounts or commissions under the Securities Act. Discounts, concessions, commissions and similar selling expenses, if any, attributable to the sale of shares will be borne by a selling stockholder. The selling stockholders may agree to indemnify any agent, dealer or broker-dealer that participates in transactions involving sales of the shares if liabilities are imposed on that person under the Securities Act.
In connection with the sale of the shares of common stock or otherwise, the selling stockholders may enter into hedging transactions with broker-dealers, which may in turn engage in short sales of the shares of common stock in the course of hedging in positions they assume. The selling stockholders may also sell shares of common stock short and deliver shares of common stock covered by this prospectus to close out short positions and to return borrowed shares in connection with such short sales. The selling stockholders may also loan or pledge shares of common stock to broker-dealers that in turn may sell such shares.
The selling stockholders may from time to time pledge or grant a security interest in some or all of the shares of common stock owned by them and, if they default in the performance of their secured obligations, the pledgees or secured parties may offer and sell the shares of common stock from time to time under this prospectus after we have filed an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus.
The selling stockholders also may transfer the shares of common stock in other circumstances, in which case the transferees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus and may sell the shares of common stock from time to time under this prospectus after we have filed an amendment to this prospectus under Rule 424(b)(3) or other applicable provision of the Securities Act amending the list of selling stockholders to include the pledgee, transferee or other successors in interest as selling stockholders under this prospectus. The selling stockholders also may transfer and donate the shares of common stock in other circumstances in which case the transferees, donees, pledgees or other successors in interest will be the selling beneficial owners for purposes of this prospectus.
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Computational Argumentation Quality Assessment in Natural Language
Henning Wachsmuth
Bauhaus-Universität Weimar Weimar, Germany
Nona Naderi
University of Toronto Toronto, Canada
Yufang Hou
IBM Research Dublin, Ireland
Yonatan Bilu IBM Research Haifa, Israel email@example.com
firstname.lastname@example.org email@example.com
firstname.lastname@example.org
Vinodkumar Prabhakaran Tim Alberdingk Thijm, Graeme Hirst Benno Stein
Stanford University Stanford, CA, USA
University of Toronto Toronto, Canada
Bauhaus-Universität Weimar Weimar, Germany email@example.com
{thijm,firstname.lastname@example.org email@example.com
Abstract
Research on computational argumentation faces the problem of how to automatically assess the quality of an argument or argumentation. While different quality dimensions have been approached in natural language processing, a common understanding of argumentation quality is still missing. This paper presents the first holistic work on computational argumentation quality in natural language. We comprehensively survey the diverse existing theories and approaches to assess logical, rhetorical, and dialectical quality dimensions, and we derive a systematic taxonomy from these. In addition, we provide a corpus with 320 arguments, annotated for all 15 dimensions in the taxonomy. Our results establish a common ground for research on computational argumentation quality assessment.
1 Introduction
What is a good argument? What premises should it be based on? When is argumentation persuasive? When is it reasonable? We subsume such questions under the term argumentation quality; they have driven logicians, rhetoricians, linguists, and argumentation theorists since the Ancient Greeks (Aristotle, 2007). Now that the area of computational argumentation is seeing an influx of research activity, the automatic assessment of argumentation quality is coming into the focus, due to its importance for envisioned applications such as writing support (Stab and Gurevych, 2014) and argument search (Wachsmuth et al., 2017), among others.
Existing research covers the mining of argument units (Al-Khatib et al., 2016), specific types of evidence (Rinott et al., 2015), and argumentative relations (Peldszus and Stede, 2015). Other works clas- sify argumentation schemes (Feng et al., 2014) and frames (Naderi and Hirst, 2015), analyze overall argumentation structures (Wachsmuth et al., 2015), or generate claims (Bilu and Slonim, 2016). Also, theories of argumentation quality exist, and some quality dimensions have been assessed computationally (see Section 2 for details). Until now, however, the assertion of O'Keefe and Jackson (1995) that there is neither a general idea of what constitutes argumentation quality in natural language nor a clear definition of its dimensions still holds.
The reasons for this deficit originate in the varying goals of argumentation: persuading audiences, resolving disputes, achieving agreement, completing inquiries, and recommending actions (Tindale, 2007). As a result, diverse quality dimensions play a role, which relate to the logic of arguments, to the style and rhetorical effect of argumentation, or to its contribution to a discussion. Consider the following argument against the death penalty: 1
Everyone has an inalienable human right to life, even those who commit murder; sentencing a person to death and executing them violates that right.
Although implicit, the conclusion about the death penalty seems sound in terms of (informal) logic, and the argument is clear from a linguistic viewpoint. Some people might not accept the first stated premise, though, especially if emotionally affected by some legal case at hand. Or, they might not be persuaded that the stated argument is the most relevant in the debate on death penalty.
This example reveals three central challenges: (1) Argumentation quality is assessed on different levels of granularity; (2) many quality dimensions are subjective, depending on preconceived opinions; and (3) overall argumentation quality seems hard to measure, as the impact and interaction of the different dimensions remain unclear.
1Taken from www.bbc.co.uk/ethics/capitalpunishment.
This paper does not propose a specific approach to assess quality; rather it defines a common ground by providing a so-far-missing holistic view on argumentation quality assessment in natural language. In particular, we first briefly but comprehensively survey all major theories and computational approaches for argumentation quality. Following Blair (2012), we distinguish three main quality aspects, each associated with several quality dimensions:
* Logical quality in terms of the cogency or strength of an argument.
* Rhetorical quality in terms of the persuasive effect of an argument or argumentation.
* Dialectical quality in terms of the reasonableness of argumentation for resolving issues.
We organize the survey along these aspects, discussing quality at four levels of granularity: (1) argument unit, i.e., a segment of text that takes the role of a premise or conclusion; (2) argument, i.e., a composition of premises and a conclusion, some of which may be implicit; (3) (monological) argumentation, i.e., a composition of arguments on a given issue; and (4) (dialogical) debate, i.e., a series of interacting argumentation on the same issue.
To unify and to consolidate existing research, we then derive a generally applicable taxonomy of argumentation quality from the survey. The taxonomy systematically decomposes quality assessment based on the interactions of 15 widely accepted quality dimensions (including the overall quality). Moreover, we provide a new annotated corpus with 320 arguments for which three experts assessed all 15 dimensions, resulting in over 14,000 annotations. Our analysis indicates how the dimensions interact and which of them are subjective, making the corpus an adequate benchmark for future research.
In summary, the contributions of this paper are:
1. A comprehensive survey of research on argumentation quality assessment (Section 2).
2. A taxonomy of all major quality dimensions of natural language argumentation, which clarifies their roles and dependencies (Section 3).
3. An annotated corpus for computational argumentation quality assessment (Section 4). 2
2 Survey of Argumentation Quality
This section briefly surveys all major existing theories and the assessment of natural language argu-
2The corpus is freely available at: http://www.arguana.com
mentation quality. While we order the discussions along the three main quality aspects, we point out overlaps and interrelations where relevant.
2.1 Theories of Argumentation Quality
We focus on the major fields dealing with argumentation quality in natural language: argumentation theory and rhetoric. Table 1 gives an overview of the quality dimensions that we detail below.
Logic Formal argumentation studies the soundness of arguments, requiring the truth of an argument's premises and the deductive validity of inferring its conclusion. In case of inductive strength, the conclusion becomes probable given the premises. While sound arguments exist in natural language, most are defeasible in nature (Walton, 2006). The desired property of such arguments is cogency.
A cogent (or logically good) argument has individually acceptable premises that are relevant to the argument's conclusion and, together, sufficient to draw the conclusion (Johnson and Blair, 2006). Here, (local) acceptability means that a premise is rationally worthy of being believed by the target audience of the argument. It replaces truth, which is often unclear (Hamblin, 1970). A premise's (local) relevance refers to the level of support it provides for the conclusion, and (local) sufficiency captures whether the premises give enough reason to accept the conclusion. In the end, sufficiency thus presupposes relevance (Blair, 2012). While acceptability is more dialectical, overall the three dimensions of cogency are, with slight variations, acknowledged to cover the logical quality of arguments.
Damer (2009) adds that a good argument also depends on the rebuttal it gives to anticipated counterarguments (a dialectical property) as well as on its structural well-formedness, i.e., whether it is intrinsically consistent, avoids begging the question, and uses a valid inference rule. These dimensions adopt ideas from the argument model of Toulmin (1958), including rebuttals and warrants, and from the argumentation schemes of Walton et al. (2008), whose critical questions are meant to evaluate inference rules. While not focusing on quality, critical questions particularly help identify fallacies.
Introduced by Aristotle as invalid arguments, fallacies have been brought back to attention by Hamblin (1970). In general, a fallacy has some sort of error in reasoning (Tindale, 2007). Fallacies range from resorting to inapplicable evidence types or irrelevant premises to rhetoric-related errors, such
Table 1: Theoretical treatment of quality dimensions in the referenced sources for the given granularities of natural language argumentation, grouped by the aspect the bold-faced high-level dimensions refer to.
as unjustified appeals to emotion. They represent an alternative assessment of logical quality. Following Damer (2009), a fallacy can always be seen as a violation of one or more dimensions of good arguments. Fallaciousness negatively affects an argument's strength (Tindale, 2007).
Pathos is not necessarily reprehensible; it just aims for an emotional state adequate for persuasion.
Argument strength is often referred to, but its meaning remains unclear: "Is a strong argument an effective argument which gains the adherence of the audience, or is it a valid argument, which ought to gain it?" (Perelman et al., 1969). Tindale (2007) sees validity as a possible but not mandatory part of reasoning strength. Freeman (2011) speaks of the strength of support, matching the idea of inductive strength. Blair (2012) roughly equates strength with cogency, and Hoeken (2001) observes correlations between evidence strength and rhetorical persuasiveness. Such dependencies are expected, as the use of true and valid arguments represents one means of persuasion: logos (Aristotle, 2007).
Rhetoric Aristotle's work on rhetoric is one of the most systematic to this day. He defines rhetoric as the ability to know how to persuade (Aristotle, 2007). Besides logos, the three means of persuasion he sees include ethos, referring to the arguer's credibility, and pathos, the successful emotional appeal to the target audience. Govier (2010) outlines how emotions interfere with logic in arguments.
In overall terms, rhetorical quality is reflected by the persuasive effectiveness, i.e., the success in persuading a target audience of a conclusion (Blair, 2012). It has been suggested that what arguments are considered as effective is subjective (O'Keefe and Jackson, 1995). Unlike persuasiveness, which relates to the actual arguments, effectiveness covers all aspects of an argumentation, including the use of language (van Eemeren, 2015). In particular, the three means of persuasion are meant to be realized by what is said and how (Aristotle, 2007). Several linguistic quality dimensions are connected to argumentation (examples follow in Section 2.2). While many of them are distinguished by Aristotle, he groups them as the clarity and the appropriateness of style as well as the proper arrangement.
Clarity means the use of correct, unambiguous language that avoids unnecessary complexity and deviation from the discussed issue (Aristotle, 2007). Besides ambiguity, vagueness is a major problem impairing clarity (Govier, 2010) and can be a cause of fallacies (Tindale, 2007). So, clarity is a prerequisite of logos. Also, it affects credibility, since it indicates the arguer's skills. An appropriate style in terms of the choice of words supports credibility and emotions. It is tailored to the issue and audience (Aristotle, 2007). Arrangement, finally, addresses the structure of argumentation regarding the presentation of the issue, pros, cons, and conclusions. Damer (2009) outlines that a proper arrangement is governed by the dimensions of a good argument. To be effective, well-arranged argumentation matches the expectations of the target audience and is, thus, related to dialectic (Blair, 2012).
Dialectic The dialectical view of argumentation targets the resolution of differences of opinions on the merit (van Eemeren and Grootendorst, 2004). Quality is assessed for well-arranged discussions that seek agreement. In contrast to the subjective nature of effectiveness, people are good in such an assessment (Mercier and Sperber, 2011). In their pragmadialectical theory, van Eemeren and Grootendorst (2004) develop rules for obtaining reasonableness in critical discussions. Reasonableness emerges from two complementary dimensions, intersubjective (global) acceptability and problem-solving validity, but effectiveness still remains the underlying goal (van Eemeren, 2015). For argumentation, global acceptability is given when the stated arguments and the way they are stated are acceptable to the whole target audience. Problem-solving validity matches the (global) relevance of argumentation that contributes to resolution, helping arrive at an ultimate conclusion (Walton, 2006).
Global relevance implicitly excludes fallacious moves, so reasonable arguments are cogent (van Eemeren, 2015). Van Eemeren sees reasonableness as a precondition for convincingness, the rational version of persuasiveness. Following Perelman et al. (1969), persuasive argumentation aims at a particular audience, whereas convincing argumentation aims at the universal audience, i.e., all reasonable beings. This fits the notion that dialectic examines general rather than specific issues (Aristotle, 2007).
Convincingness needs (global) sufficiency, i.e., all objections to an argumentation are countered. The dilemma here is that the number of objections could be infinite, but without global sufficiency the required support seems arbitrary (Blair, 2012). A solution is the relaxed view of Damer (2009) that only those counter-arguments that can be anticipated are to be rebutted. For debates, Cohen (2001) speaks of dialectical satisfactoriness, i.e., whether all questions and objections have been sufficiently answered. In case a reasonable debate ends up in either form of global sufficiency, this implies that the discussed difference of opinion is resolved.
Other Although closely related, critical thinking (Freeley and Steinberg, 2009) and persuasion research (Zhao et al., 2011) are covered only implicitly here; their views on quality largely match with argumentation theory. We have not discussed deliberation, as it is not concerned with the quality of argumentation primarily but rather with communicative dimensions of group decision-making, e.g., participation and respect (Steenbergen et al., 2003). Also, we have restricted our view to the logic found in natural language. For formal and probabilistic logic, dimensions such as degree of justification (Pollock, 2001), argument strength (Pfeifer, 2013), and premise relevance (Ransom et al., 2015) have been analyzed. As we see below, such logic influenced some practical assessment approaches.
2.2 Approaches to Quality Assessment
As for the theories, we survey the automatic quality assessment for natural language argumentation. All discussed approaches are listed in Table 2.
Logic Braunstain et al. (2016) deal with logical argument quality in community question answering: Combining relevance-oriented retrieval models and argument-oriented features, they rank sentencelevel argument units according to the level of support they provide for an answer. Unlike classical essay scoring, Rahimi et al. (2014) score an essay's evidence, a quality dimension of argumentation: it captures how sufficiently the given details support the essay's thesis. On the dataset of Correnti et al. (2013) with 1569 student essays and scores from 1 to 4, they find that the concentration and specificity of words related to the essay prompt (i.e., the statement defining the discussed issue) impacts scoring accuracy. Similarly, Stab and Gurevych (2017) introduce an essay corpus with 1029 argument-level annotations of sufficiency, following the definition of Johnson and Blair (2006). Their experiments suggest that convolutional neural networks outperform feature-based sufficiency classification.
Rhetoric Persing et al. (2010) tackle the proper arrangement of an essay, namely, its organization in terms of the logical development of an argument. The authors rely on manual 7-point score annotations for 1003 essays from the ICLE corpus (Granger et al., 2009). In their experiments, sequences of paragraph discourse functions (e.g., introduction or rebuttal) turn out to be most effective. Organization is also analyzed by Rahimi et al. (2015) on the same dataset used for the evidence
Table 2: Practical assessment of quality dimensions in the referenced sources for the given granularities and text genres of natural language argumentation, grouped by the aspect the quality dimensions refer to.
approach above. Their results indicate a correlation between organization and local coherence. Feng et al. (2014) parse discourse structure to assess global coherence, i.e., the continuity of meaning in a text. Lacking ground-truth coherence labels, they evaluate their approach on sentence ordering and organization scoring instead. Coherence affects the clarity of style, as do the thesis clarity and prompt adherence of essays. Persing and Ng (2013) find the former to suffer from misspellings, while Persing and Ng (2014) use prompt-related keywords and topic models to capture the latter (both for 830 ICLE essays like those mentioned above). For comments in lawmaking, Park et al. (2015) develop an argumentation model that prescribes what information users should give to achieve evaluability (e.g., testimony evidence or references to resources).
data, Wei et al. (2016) find that also an author's reputation impacts persuasiveness. Zhang et al. (2016) discover for Oxford-style debates that attacking the opponents' arguments tends to be more effective than relying on one's own arguments. These results indicate the relation of rhetoric and dialectic.
Not only linguistic quality, but also effectiveness is assessed in recent work: Persing and Ng (2015) score the argument strength of essays, which they define rhetorically in terms of how many readers would be persuaded. Although potentially subjective, their manual 7-point score annotations of 1000 ICLE essays differ by at most 1 in 67% of the studied cases. Their best features are heuristic argument unit labels and part-of-speech n-grams. Recently, Wachsmuth et al. (2016) demonstrated that the output of argument mining helps in such argumentation-related essay scoring, obtaining better results for argument strength and organization. Tan et al. (2016) analyze which arguments achieve persuasiveness in "change my view" forum discussions, showing that multiple interactions with the view-holder are beneficial as well as an appropriate style and a high number of participants. On similar
Dialectic Dialectical quality has been addressed by Cabrio and Villata (2012). The authors use textual entailment to find ground-truth debate portal arguments that attack others. Based on the formal argumentation framework of Dung (1995), they then assess global argument acceptability. Habernal and Gurevych (2016) compare arguments in terms of convincingness. However, the subjective nature of their crowdsourced labels actually reflects rhetorical effectiveness. Boltuži´c and Šnajder (2015) present first steps towards argument prominence. Prominence may be a product of popularity, though, making its quality nature questionable, as popularity is often not correlated with merit (Govier, 2010). In contrast, Wachsmuth et al. (2017) adapt the famous PageRank algorithm to objectively derive the relevance of an argument at web scale from what other arguments refer to the argument's premises. On a large ground-truth argument graph, their approach beats several baselines for the benchmark argument rankings that they provide.
Other Again, we have left out deliberative quality (Gold et al., 2015). Also, we omit approaches that classify argumentation schemes (Feng and Hirst, 2011), evidence types (Rinott et al., 2015), ethosrelated statements (Duthie et al., 2016), and myside bias (Stab and Gurevych, 2016); their output may help assess quality assessment, but they do not actually assess it. The same holds for argument mining,
Local
even if said to aim for argument quality (Swanson et al., 2015). Much work exists for general text quality, most notably in the context of readability (Pitler and Nenkova, 2008) and classical essay scoring. Some scoring approaches derive features from discourse (Burstein et al., 1998), arguments (Ong et al., 2014; Beigman Klebanov et al., 2016; Ghosh et al., 2016), or schemes (Song et al., 2014)—all this may be indicative of quality. However, our focus is approaches that target argumentation quality at heart. Similarly, review helpfulness (Liu et al., 2008) and deception (Ott et al., 2011) are not treated, as arguments only partly play a role there. Also, only few Wikipedia quality flaws relate to arguments, e.g., verifiability (Anderka et al., 2012).
fect quality, what interdependencies they have, and how they interact. Figure 1 illustrates the taxonomy that we propose for this purpose. The rationale behind its structure and its layout is as follows.
3 A Taxonomy of Argumentation Quality
Given all surveyed quality dimensions, we now propose a unifying taxonomy of argumentation quality. The taxonomy decomposes quality assessment systematically, thus organizing and clarifying the roles of practical approaches. It does not require a particular argumentation model, but it rests on the notion of the granularity levels from Section 1.
3.1 Overview of the Theory-based Taxonomy
Our objective is not to come up with a new theory, but to provide a unified view of existing theories that is suitable for quality assessment. We aim for a common understanding of the dimensions that af-
While Section 2 has outlined overlaps and relations between the three aspects of argumentation, we have identified one dominant high-level quality dimension of argumentation quality in theory for each aspect: logical cogency, rhetorical effectiveness, and dialectical reasonableness. The latter two benefit from cogency, and reasonableness depends on effectiveness, as discussed. Often, only one of them will be in the focus of attention in practice, or even only a sub-dimension. In particular, each highlevel dimension has a set of sub-dimensions agreed upon. The sub-dimensions are shown on the outer ring in Figure 1, roughly positioned according to the aspects they refer to, e.g., local acceptability lies next to the other dialectical dimensions. We ordered the sub-dimensions by their interrelations (left implicit for conciseness), e.g., appropriateness supports credibility and emotional appeal.
Slightly deviating from theory, we match Aristotle's logos dimension with cogency, which better fits real-world argumentation. Similarly, we omit those dimensions from Table 1 in the taxonomy that have unclear definitions, such as strength, or that are covered by others, such as well-formedness, which merely refines the acceptability part of cogency (Govier, 2010). Convincingness is left out, as it is close to effectiveness and as both the feasibility and the need of persuading the universal audience has been questioned (van Eemeren, 2015). Instead, we add global sufficiency as part of reasonableness. While global sufficiency may be infeasible, too (Blair, 2012), it forces agreement in critical discussions and, thereby, reasonableness.
3.2 Definitions of the Quality Dimensions
Cogency is seen as an argument property, whereas effectiveness and reasonableness are assessed on the argumentation level usually. For generality, we give informal literature-based definitions of these dimensions and all sub-dimensions here for an author who argues about an issue to a target audience:
Cogency An argument is cogent if it has acceptable premises that are relevant to its conclusion and that are sufficient to draw the conclusion.
* Local acceptability: A premise of an argument is acceptable if it is rationally worthy of being believed to be true.
* Local relevance: A premise of an argument is relevant if it contributes to the acceptance or rejection of the argument's conclusion.
* Local sufficiency: An argument's premises are sufficient if, together, they give enough support to make it rational to draw its conclusion.
Effectiveness Argumentation is effective if it persuades the target audience of (or corroborates agreement with) the author's stance on the issue.
* Credibility: Argumentation creates credibility if it conveys arguments and similar in a way that makes the author worthy of credence.
* Emotional Appeal: Argumentation makes a successful emotional appeal if it creates emotions in a way that makes the target audience more open to the author's arguments.
* Clarity: Argumentation has a clear style if it uses correct and widely unambiguous language as well as if it avoids unnecessary complexity and deviation from the issue.
* Appropriateness: Argumentation has an appropriate style if the used language supports the creation of credibility and emotions as well as if it is proportional to the issue.
* Arrangement: Argumentation is arranged properly if it presents the issue, the arguments, and its conclusion in the right order.
Reasonableness Argumentation is reasonable if it contributes to the issue's resolution in a sufficient way that is acceptable to the target audience.
* Global acceptability: Argumentation is acceptable if the target audience accepts both the consideration of the stated arguments for the issue and the way they are stated.
* Global relevance: Argumentation is relevant if it contributes to the issue's resolution, i.e., if it states arguments or other information that help to arrive at an ultimate conclusion.
* Global sufficiency: Argumentation is sufficient if it adequately rebuts those counterarguments to it that can be anticipated.
3.3 Organization of Assessment Approaches
The taxonomy is meant to define a common ground for assessing argumentation quality, including the organization of practical approaches. The left and right side of Figure 1 show where the approaches surveyed in Section 2.2 are positioned in the taxonomy. Some dimensions have been tackled multiple times (e.g., clarity), others not at all (e.g., credibility). The taxonomy indicates what sub-dimensions will affect the same high-level dimension.
4 The Dagstuhl-15512 ArgQuality Corpus
Finally, we present our new annotated Dagstuhl15512 ArgQuality Corpus for studying argumentation quality based on the developed taxonomy, and we report on a first corpus analysis. 3
4.1 Data and Annotation Process
Our corpus is based on the UKPConvArgRank dataset (Habernal and Gurevych, 2016), which contains rankings of 25 to 35 textual debate portal arguments for two stances on 16 issues, such as evolution vs. creation and ban plastic water bottles. All ranks were derived from crowdsourced convincingness labels. For every issue/stance pair, we took the five top-ranked texts and chose five further via stratified sampling. Thereby, we covered both high-quality arguments and different levels of lower quality. Two example texts follow below in Figure 2.
Before annotating the 320 chosen texts, we carried out a full annotation study with seven authors of this paper on 20 argumentative comments from
3The corpus and annotation guidelines are available at http://www.arguana.com. The corpus is named after the Dagstuhl Seminar 15512 "Debating Technologies" that initialized the research in this paper: http://www.dagstuhl.de/15512
Table 3: Results for the 304 corpus texts classified as argumentative by all annotators: (a) Distribution of majority scores for each dimension (2 used in case of full disagreement). (b) Krippendorff's ↵ of the most agreeing annotator pair and full/majority agreement of all annotators. (c) Correlation for each dimension pair, averaged over the correlations of all annotators. The highest value in each column is marked bold.
the unshared task dataset of the 3rd Workshop on Argument Mining. 4 The annotators assessed all 15 quality dimensions in the taxonomy for each comment (including its overall quality). Due to simple initial guidelines based on the definitions from Section 3 and the subjectiveness of the task, the agreement of all seven annotators was low for all dimensions, namely, at most .22 in terms of Krippendorff's ↵. The three most agreeing annotators for each dimension achieved much higher ↵-values between .23 (clarity) and .60 (credibility), though. 5
the whole score range. Five dimensions have the median at score 1, the others at 2. Some seem easier to master, such as local relevance, which received the highest majority score 124 times. Others rarely got score 3, above all global sufficiency. The latter is explained by the fact that only few texts include any rebuttal of counter-arguments.
The study results were discussed by all annotators, leading to a considerably refined version of the guidelines. We then selected three annotators for the corpus annotation based on their availability. They work at two universities and one company in three countries (two females, one male; two PhDs, one PhD student). For each text in the corpus, all annotators first classified whether it was actually argumentative. If so, they assessed all dimensions using ordinal scores from 1 (low) to 3 (high). 6 Additionally, "cannot judge" could be chosen.
4.2 Corpus Distribution and Agreement
Table 3(a) lists the majority scores of each dimension for the 304 corpus texts (95%) that are classified as argumentative by all annotators, all covering
4Unshared task data found at: http://github.com/UKPLab
6We chose a 3-point scale to foster clear decisions on the quality; in the annotation study, we used a 4-point scale but observed that the annotators only rarely chose score 1 and 4.
5We use Krippendorff's ↵ as is suitable for small samples, multiple ratings, and ordinal scales (Krippendorff, 2007).
Only one of the over 14,000 assessments made by the three annotators was "cannot judge" (for global relevance), suggesting that our guidelines were comprehensive. Regarding agreement, we see in Table 3(b) that the ↵-values of all logical and dialectical quality dimensions except for global sufficiency lie above 0.4 for the most agreeing annotator pair. As expected, the rhetorical dimensions seem to be more subjective. The lowest ↵ is observed for emotional appeal (0.26). The annotators most agreed on the overall quality (↵ = 0.51), possibly meaning that the taxonomy adequately guides the assessment. In accordance with the moderate ↵values, full agreement ranges between 17.4% and 44.7% only. On the contrary, we observe high majority agreement between 87.5% and 98% for all dimensions, even where scores are rather evenly distributed, such as for global acceptability (95.4%). In case of full disagreement, it makes sense to use score 2. We hence argue that the corpus is suitable for evaluating argumentation quality assessment.
Figure 2 shows all scores of each annotator for two example arguments from the corpus, referring to the question whether to ban plastic water bottles. Both have majority score 3 for overall quality (Ov),
Arguments
Scores
Annotator A
Annotator B
Annotator C
Pro Water bottles, good or bad? Many people believe plastic water bottles to be good. But the truth is water bottles are polluting land and unnecessary. Plastic water bottles should only be used in emergency purposes only. The water in those plastic are only filtered tap water. In an emergency situation like Katrina no one had access to tap water. In a situation like this water bottles are good because it provides the people in need. Other than that water bottles should not be legal because it pollutes the land and big companies get 1000% of the profit.
Co LA LR LS Ef Cr Em Cl Ap Ar Re GA GR GS Ov
3 3 3 2 3 3 3 3 3 3 33 3 2 3
2 2 3 2
23 3 2
1 2 2 2 2 1
22 2 3 3 3
22 2 1
33 3 2
2
3
Con Americans spend billions on bottled water every year. Banning their sale would greatly hurt an already struggling economy. In addition to the actual sale of water bottles, the plastics that they are made out of, and the advertising on both the bottles and packaging are also big business. In addition to this, compostable waters bottle are also coming onto the market, these can be used instead of plastics to eliminate that detriment. Moreover, bottled water not only has a cleaner safety record than municipal water, but it easier to trace when a potential health risk does occur. (http://www.friendsjournal.org/bottled-water) (http://www.cdc.gov/healthywater/drinking/bottled/)
Co LA LR LS Ef Cr Em Cl Ap Ar Re GA GR GS Ov
33 3 3 33 2 3 3 3 33 3 3 3
2 3 3 2
33 3 3
2 3 2 3 3
3
2
2 1 3 3 3
33 2 2
33 3 3
3
3
Majority score 23 3 2 22 2 3 3 3 33 3 2 3 33 3 3 33 2 3 3 3 33 3 3 3
Figure 2: The scores of each annotator and the majority score for all considered quality dimensions of one pro and one con argument from our corpus. The arguments refer to the issue ban plastic water bottles.
but the pro argument shows more controversy with full disagreement in case of effectiveness (Ef). Especially, annotator B seems to be critical, giving one point less for several dimensions. In contrast, the con argument yields majority agreement for all 15 dimensions and full agreement for seven of them. It meets main quality criteria surveyed in Section 2, such as a rebuttal or references to resources. In fact, it constitutes the only corpus text with majority score 3 for global sufficiency (GS).
5 Conclusion
4.3 Correlations between Quality Dimensions
Table 3(c) compares the correlations of all dimension pairs. Cogency (.84), effectiveness (.81), and reasonableness (.86) correlate strongly with overall quality, and also much with each other.
Cogency and local sufficiency (.84) go hand in hand, whereas local acceptability and local relevance show the highest correlation with their global counterparts (.75 and .68 respectively). Quite intuitively, credibility and appropriateness correlate most with the acceptability dimensions. The coefficients of emotional appeal seem lower than expected, in particular for effectiveness (.31), indicating the limitation of a correlation analysis: As reflected by the 235 texts with majority score 2 for emotional appeal, many arguments make no use of emotions, thus obliterating effects of those which do. On the other hand, clarity was scored 2 in most cases, too, so the very low value there (.14) is more meaningful. Clarity rather correlates with arrangement (.56), which in turn shows coefficients above .50 for all high-level dimensions.
Altogether, the correlations largely match the surveyed theory. While an analysis of cause and effect should follow in future work, they provide first evidence for the adequacy of our taxonomy.
Argumentation quality is of high importance for argument mining, debating technologies, and similar. In computational linguistics, it has been treated only rudimentarily so far. This paper defines a common ground for the automatic assessment of argumentation quality in natural language. Based on a survey of existing theories and approaches, we have developed a taxonomy that unifies all major dimensions of logical, and dialectical argumentation quality. In addition, we freely provide an annotated corpus for studying these dimensions.
The taxonomy is meant to capture all aspects of argumentation quality, irrespective of how they can be operationalized. The varying inter-annotator agreement we obtained suggests that some quality dimensions are particularly subjective, raising the need to model the target audience of an argumentation. Still, the observed correlations between the dimensions support the general adequacy of our taxonomy. Moreover, most dimensions have already been approached on a certain abstraction level in previous work, as outlined. While some refinement may be suitable to meet all requirements of the community, we thus propose the taxonomy as the common ground for future research on computational argumentation quality assessment and the corpus as a first benchmark dataset for this purpose.
Acknowledgments
We thank all attendees of Dagstuhl Seminar 15512, particularly the rest of the quality breakout group: Wolf-Tilo Balke, Ruty Rinott, and Christian Stab. Also, we acknowledge financial support of the Stanford University, the DFG, and the Natural Sciences and Engineering Research Council of Canada.
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Department of Medical Microbiology Faculty of Medicine University Malaya 50603 Kuala Lumpur Malaysia
W Y Sekhar, MBBS hons Research Officer
E H Soo, MLT Diploma Research Officer
V Gopalakrishnan, PhD Research Officer
S Devi, PhD Associate Professor
Correspondence to:
Dr Shamala Devi Email: shamala@ medicine.med.um.edu.my
Leptospirosis in Kuala Lumpur and the Comparative Evaluation of Two Rapid Commercial Diagnostic Kits Against the MAT Test for the Detection of Antibodies to Leptospira Interrogans
W Y Sekhar, E H Soo, V Gopalakrishnan, S Devi
ABSTRACT
The aim of the study was to look into the epidemiology of serodiagnosed cases of leptospirosis at the University Hospital and compare two commercial ELISA Assays to the Microscopic Agglutination Test (MAT). Demographic data for all serodiagnosed cases for the years 1991-1997 were collected. From this data, 104 sera (n=104) were selected as samples for comparative evaluation of the commercial ELISAs (INDX Dip-S-Ticks and PanBio ELISA) to the MAT test. Thirty two (n=32) negative control sera were selected from serodiagnosed cases of other differential diagnosis of leptospira infection. The MAT test is a standard test that detects agglutination antibodies to leptospira biflexa, while the INDX Dip-S-Ticks is an ELISA dot test assaying for total anti-leptospira antibodies. The PanBio ELISA is a colorometric assay in test well strips to detect anti-leptospira IgM. The sensitivity, specificity, and efficiency of tests were calculated at a MAT cut-off value of 1:320. Demographic data showed that leptospirosis peaks during March-May and Aug-Nov coinciding with the inter-monsoon period with more men being infected than women and more adults than children. The sensitivity, specificity, and efficiency of test for the INDX Dip-S-Ticks were 83.3%, 93.8% and 87.5% while the values for the PanBio ELISA were 54.2%, 96.9% and 71.3%. The suboptimal PanBio result could be related to the blocking effect of high IgG titres or could be related to the diagnostic MAT cut-off values used in this study. The data hence reflects a pattern of transmission that is related to "wet" occupational risk factors. The commercial assays evaluated, are easier to perform but interpretation of results should be based on level of endemicity. The INDX Dip-STicks allows this flexibility and is a practical alternative to the MAT test.
Keywords: leptospira, epidemiology, diagnostic assay, ELISA, Dipsticks.
Singapore Med J 2000 Vol 41(8):370-375
INTRODUCTION
Leptospirosis is a worldwide zoonosis caused by spirochaetes, Leptospira interrogans. There are over 270 serovars of leptospires, which are traditionally classified into two broad groups based on pathogenicity. The pathogenic L. interrogans, is a collective of 210 serovas, and the non-pathogenic free living L. biflexa consists of 63 serovas. Leptospira interrogans from urine of infected animals infects its host by penetration through mucous membrane, or skin that is broken or macerated through prolonged immersion in water. Inoculation can occur directly, through direct contact with animals/ livestock or indirectly by contact with contaminated soil or fresh water. Upon inoculation it spreads throughout the body and crosses the blood brain barner. After an incubation period of 2-20 days, it causes two clinical syndromes – Anicteric and Icteric Leptospirosis. Host and organ preference have been noted with certain serovars such as canicola with dogs, pomona with swine, ballum with mice and icterohaemorrhagiae with rats (1) . In organ involvement L. icterohaemorrhagiae, the most virulent strain have been observed to cause renal and liver failure and serotype grippotyphosa or canicola are frequently associated with meningeal forms (2) .
An antibody prevalence study in rural Malaysia (1960-1961) have shown leptospirosis to be endemic with an antibody prevalence ratio of 11.8%. High incidence is seen particularly in oil palm estate workers and forest dwellers (28-29%) but clinical features are usually mild and does not require hospitalisation (3) . Epidemiological studies have also noted leptospirosis to be more prevalent during wet season which allows for an increase in exposure by walking barefooted on
puddles. Occupational risk factors include plantation workers, sewer workers, loggers, vets, abattoir workers and military personnel (4,5) . However, transmission through recreational activities involving contact with water such as swimming, canoeing and river activities have become more significant in developed economies (6,7,8) .
Leptospira are fastidious organisms requiring special culture media with long chain fatty alcohols and pyrimidines and take 4-6 weeks to grow. Serology is usually only positive by the second week of illness. Diagnosis therefore have to be based on a high index of suspicion with a history of contact with animals and occupational or recreational activities as well as clinical and laboratory parameters. Early detection of leptospira in urine and CSF by PCR diagnosis have been found to be promising but this has not been applied to service laboratories here (9,10,11) .
At the University Hospital diagnosis is made by microscopic agglutination test (MAT) for the detection of agglutination antibodies on serum and CSF, and cultures of CSF, serum, and urine. The MAT test uses the broadly reacting L. biflexa (patoc 1) cultured in Korthoff's media. It is cheap to perform but technically difficult and requires the maintenance of live organisms. Cultures on Korthoff's media is technically complex requiring precautions to prevent death of leptospira or overgrowth of other pathogens. The current study aims to compare the MAT test with 2 other alternative serological ELISA methods, the Leptospira IgM ELISA Test (PanBio, antigen type not specified) and the INDX Dip-S-Ticks (Integrated Diagnostics, Inc.) for the detection of total Ig to L. biflexa (serovar patoc 1).
MATERIALS AND METHOD
Patients' sera (n=104)
The study was carried out at the University Hospital, Kuala Lumpur. Serological data collected from requested MAT test for the years 1991-1998 were screened for positive cases. Demographic data including age, sex, and race were recorded. From these samples, seventy-two sera were selected for comparative evaluation with the PanBio ELISA Test and the INDX ELISA dot Dip-S-Ticks test. Single serum samples (n=38) accounted for 38 sera collected during the acute phase of leptospirosis, 3-14 days after the onset of symptoms. The remaining 34 samples were paired samples (n=34) taken during admission and again on discharge.
Thirty-two negative controls included, sera from normal healthy population (n=6) and patients with viral hepatitis (n=10), dengue haemorrhagic fever (n=4) or diagnosed infective pyrexia of unknown origin (PUO) (n=12) which are other differential diagnosis of leptospira infection.
MAT
The MAT test uses L. biflexa (patoc 1) cultured in Korthoff's media to detect agglutination antibodies from patient sera. Patient sera is screened at a dilution of 1:80 in normal saline. 100µl of both sera and 8-14 days old culture of L. biflexa is incubated for 3 hours at room temperature. After incubation, a drop (approximately 6µl) of the above is placed on a slide and examined for agglutination under a dark-field microscope. Cultures showing agglutination at this dilution is further tested at serial two fold dilution up to 1:5,160. A MAT test is considered boderline at titres of 160-320 and positive at titres of > 1:320 for single samples.
The ELISAs were carried out as per the manufacturer's instructions as briefly described below.
Dip-S-Ticks Assay
The INDX Leptospira Dip-S-Ticks assay utilizes an enzyme-linked immunoassay (EIA) dot technique for the detection of antibodies. Briefly the antigens were dispensed as discrete dots onto a solid membrane. After adding specimen to a reaction cuvette, an assay strip is inserted, allowing patient antibodies reactive with the test antigens to bind to the strip's solid support membrane. In the second stage, the reaction is enhanced by removal of nonspecifically bound materials. During the third stage, alkaline phosphatase conjugated antihuman antibodies are allowed to react to bound patient antibodies. Finally the strip is transferred to an enzyme substrate reagent, which reacts with bound alkaline phosphatase to produce an easily distinct spot.
This assay is performed in a waterbath at 50°C: and takes approximately an hour to perform. We assayed for total Ig against leptospirosis but when assaying for IgM only, an additional reagent proSorb G (goat antihuman IgG absorbent) can be added to the first reaction
cuvette and the remaining assay continues according to the same protocol as for the total Ig assay. The dip-STicks contain 6 windows, the first two being the positive and negative control and the remaining four windows are the L. biflexa antigen at serial double dilution (Fig. 1). At the specified serum dilution, the first well represents a > 1:200 dilution. The results are interpreted based on the number or level of reactive dots and equated to the corresponding titre dilution (12) .
PanBio Leptospira IgM test
The PanBio kit utilises a direct ELISA format. Briefly polystyrene microwell test strips are coated with Leptospira antigen. Diluted serum is then added and allowed to incubate for 20 minutes at room temperature. Residual serum is then removed by washing and peroxidase conjugated anti-human IgM is added. The microwells are washed and a colourless substrate system, tetramethylbenzidine/ hydrogen peroxidase (TMB/ H2O2) is added The substrate is hydrolysed by the enzyme and the chromogen changes to a blue colour. After stopping the reaction with acid, the TMB becomes yellow. The result is read with a dual wavelength spectrophotometer at 450nm and a background of 650nm. The colour intensity is directly related to the concentration of Leptospira IgM antibodies in the test sample.
Each set of tests is run with a positive control, negative control and cut-off calibrator in duplicate. The test is valid when the absorbance readings of the above meet the specifications of the PanBio instructions. The
results are interpreted based on PanBio Units derived from the equation:
* PanBio Units = 10 X (Absorbance of sample/mean absorbance of cutoff)
* PanBio units of <10 gives a negative result interpreted as no evidence of recent infection,
* PanBio units of 10-20 is a low positive result and may suggest a recent infection and
* PanBio units of >20 is a positive result suggestive of a recent or current infection (13) .
Data Analysis
Sensitivity, specificity, positive predictive values (PPV), negative predictive value (NPV), and Efficiency of Test were calculated based on MAT cutoff of >320 dilution, using standard equations:
* % sensitivity = true positives / (true positives + false negative) X 100,
* % specificity = true negatives / (false positive + true negative) X 100,
* PPV = true positive/all positive test
* NPV = true negative/all negative test
* Efficiency of test = (true positive + true negative) / total samples
RESULTS
Demographic data
From 1991 to 1998 there has been an increase in requests for the MAT test from 50-100 requests per year to 282 requests for 1998. There is also a proportionate increase in the number of cases diagnosed, giving a the MAT test a positive yield of approximately 8%. The serological incidence detected at the University Hospital is not high, with 5-36 cases diagnosed annually. Demographic data collected from these samples shows that leptospirosis occurs in two peaks in urban Malaysia, the first peak during March-May and the second peak during AugNov (Fig. 2). Although limited, our data shows that more men are infected than women with a male to female ratio of 2:1 and more adults are affected than children with no specific peak in any age groups. Race distribution shows a higher occurrence of leptospirosis in Malays (Fig. 3a & 3b)
Diagnostic Assays
The positive and negative controls in all Dip-S-Ticks were appropriate, indicating that all sera were tested correctly. Table I shows the comparative result of the three diagnostic assays. The MAT assay was considered positive at > 1:320. We had considered the Dip-S-Ticks assay as positive for leptospira infection at a higher titre of > 1:400 as it is assaying for total immunoglobulins rather than agglutination antibodies. Based on these values the Dip-S-Ticks had tested positive for 40 out of
48 MAT positive sera. Six out of eight of the false negative sera had a MAT titre of > 1:640. There were two false positives from the MAT negative (< 1:80) sera, these sera were from serologically diagnosed Hepatitis A and B samples and had stained positive at Dip-S-Ticks titres of 1:400 and 1:800 respectively. From these results, the sensitivity and specificity of the Dip-S-Ticks were calculated to be 83.3% and 93.8% respectively, the PPV is 95.2%, NPV is 79% and the efficiency of test is 87.5% at cut-off MAT titres of > 1:320.
The controls and cut-off calibrators for the PanBio ELISA assay were valid indicating that the ELISA were performed correctly. The PanBio ELISA were considered positive at PanBio units of > 10. Using this assay, a significant number of MAT positive test at lower agglutination titres were PanBio negative and only 26 out of 48 MAT positive cases were identified. The remaining 22 false negative sera were predominantly at MAT titres of > 1:640. However, at a higher MAT titre of > 1:1280, PanBio was able to pick up most of the MAT positive cases . There was 1 false positive serum from the Scrub typhus (Orientia tsutsugamushi) sera samples which tested positive at a PanBio unit of 13.12. The sensitivity, specificity, PPV, NPV and efficiency of test of the PanBio ELISA were calculated to be 54.2%, 96.9%, 96.3°/4, 58.5% and 71.3% at MAT cut-off titres of > 1:320.
DISCUSSION
Although leptospirosis is endemic in rural Malaysia, the number of requests and diagnosed cases at the University Hospital located in an urban setting, indicates that leptospirosis is either under-diagnosed or the transmission cycle in this setting is limited The demographic data obtained from seropositive cases diagnosed at the hospital is hence limited and insufficient for conclusion although it concedes with frequently observed patterns of transmission related to "wet" occupational risk factors (14,15) .
Leptospirosis is a systemic infection with the primary lesion being endothelial cell membrane defects of small vessels leading to haemorrhage, ischaemia and secondary organ pathology. Clinically, it differs from other vasculitic or haemorrhagic infection through distinguishing clinical and laboratory features. Anicteric leptospirosis which accounts for the majority of cases (85-90%) is usually biphasic in nature with a septicaemic stage that lasts for 4-7 days, then a quiescent period of 1-3 days followed by an immune stage that can last from 4 to 30 days. The onset of the septicaemic stage is abrupt with high remitting fever, headache, myalgia, abdominal pain, nausea and vomiting, typically non-purulent conjunctival suffusion, rash, and lymphoid organ enlargement. Leptospira can be isolated from the
Table I. Comparative evaluation of MAT, INDX Dip-S-Ticks and PanBio ELISA at MAT cutoff of 1:320
blood and CSF during this phase. The immune stage follows, thought to be due to the onset of an immune response hence appearance of IgM. Within 1-2 days, leptospires are cleared from the CSF and blood giving aseptic meningitis and milder symptoms. Leptospires
remains in the renal tubules and are excreted in the urine in 95% of cases. This can persist for 4-6 weeks hence urine cultures and serology is of diagnostic value during this phase (5,19) .
Icteric leptospirosis (10-15%) or Weil's disease has more severe manifestations with symptomatic hepatic and renal failure, and bleeding diathesis associated with a 10%-50% mortality rate (15) . There is usually no demarcation between the two phases and organ failure can occur as early as the third day of illness. Jaundice as its name implies is a prognostic factor and is related with liver function failure at a subcellular level, thought to be enzyme or toxin mediated. Histochemical studies shows lime hepatocellular necrosis hence the rise in transaminases are relatively small. Severe vasculitis amplified by impaired liver production of prothrombin, albumin and globumin causes haemorrhagic and circulatory manifestations. Peri-myocarditis with ECG abnormalities can further contribute to this hypoperfusion. Anaemia, thrombocytopaenia, leucocytosis with neutrophilia are common haematological laboratory findings. Renal pathology secondary to ischaemia, results in azotemia, oliguria and anuria. Rhabdomylosis especially of the gastrocnemius muscle, hence tender calves, releases creatinine kinase and myoglobulin which have been suggested to increase the severity of renal failure. Pulmonary involvement are usually haemorrhagic manifestations that are bilateral, interstitial and peripheral causing cough, dyspnoea, haemoptosis/ frank haemorrhage and respiratory failure. Poor prognostic features associated with higher mortality includes jaundice, anuria and rhabdomylosis (50%) (5,19) .
Antibiotic treatment with penicillin, amoxicillin, ampicillin, doxycycline, and tetracycline have been shown to decrease the duration of the illness and if commenced within the first 3 days, will decrease the severity but mortality rate have not been shown to be affected (14,15) . Jarisch Herxheimer reaction is rare but has occurred, and is thought to be due to sudden release of toxins and can be fatal. Treatment is otherwise supportive and requires close observation. Early diagnosis is hence important for the treatment of patients and also allows for appropriate preventative measures by health authorities which includes surface disinfection, quarantine of animal farms, rodent control, regulations on appropriate protective occupational clothing, education, prophylactic doxycycline and animal and human vaccination.
When comparing the practical aspects of the three tests, the ELISAs are easier to perform, taking approximately an hour to complete, and is simpler to interpret. The INDX Dip-S-Ticks is a self-contained test with each Dip-S-Tick containing the controls and antigen wells. It requires a waterbath or a heat block beyond the basic laboratory apparatus. The PanBio microwell test strips contain 8 wells per strip of which 4 wells are used for control in every run. It is therefore better to run this test when there are many samples to avoid wastage of test wells. It requires a microplate washing system and an ELISA reader. The MAT test requires a tissue culture system to maintain fresh leptospira cultures and a dark-field microscope to read the agglutinated cultures on slide. It is only done against one serovar and is a difficult test to standardise especially when dealing with live organisms. Interpretation is also based on a subjective appraisal of the presence of agglutination.
The analytical evaluation of the two commercial ELISA kits against the MAT positive sera shows that the INDX Dip-S-Ticks which uses the same antigen, Leptospira biflexa (patoc 1) has a sensitivity of 83.3%, specificity of 93.8%, PPV of 95.2%, NPV of 79% and efficiency of test at 87.5% at a cut-off MAT titre of > 1:320. Cross-reactivity occurred with two sera from viral hepatitis. The PanBio IgM ELISA uses a nonspecified leptospira antigen which have been demonstrated to detect a number of L. interrogans serovars. This test, when performed and interpreted according to the manual instructions resulted in a compromised sensitivity of 54.2% compared to a high specificity of 96.9%, the NPV is 58.5%, the PPV is 96.3% and the efficiency of test is 71.3%. However at a higher MAT titre 1:1280 the PanBio ELISA was able to pick up almost all the positive sera. Cross reactivity occurred with one serum from scrub typhus. The numerous false negative results could be related to the type and quantity of antigen used as well as the MAT cut-off value of 1:320. However we should note that the PanBio kit is measuring only IgM titres while both the other two are measuring total antibodies. It is also well known that high IgG titres can block binding of IgM resulting in a false negative value. This evaluation differs significantly with previously done studies on both kits giving sensitivities of 100% when the cut-off MAT titre were 1:800 (12,17) . The incidence of leptospirosis differs regionally, and appears to be more prevalent in a rural setting where man transgresses into the zoonotic cycle of transmission. A MAT titre of > 1:800 may therefore only be diagnostically significant in an endemic region where there is continual re-exposure. In a non endemic region a lower titre is significant. Our study at a MAT cut off of > 1:320 is based on the University Hospital's diagnostic criteria as generally a MAT of > 1:400 is considered positive in non-endemic areas (16,17,18) . Commercial kits therefore should tailor their kits to allow flexibility of interpretation based on endemicity.
In conclusion, in view of the re-emerging zoonosis, the prompt diagnosis of leptospirosis is essential for both patient care and efficient implementation of public health measures. It is therefore important to have an efficient diagnostic test that is rapid, accessible and practical to general physicians. In our evaluation of a limited number of sera (n=104), the INDX Dip -S- Ticks appears to be a practical alternative but our evaluation of PanBio is suboptimal and could be related to our current MAT positive selection criteria for leptospira sera and to the blocking effect of high IgG titres. PCR diagnosis of urine, CSF and blood samples could further improve diagnosis and could be established in specialist centres.
ACKNOWLEDGEMENTS
We thank PanBio for providing the Leptospira IgM ELISA Test and Integrated Diagnostics, Inc for providing the INDX leptospira Dip-S-Ticks. We also thank R A Vinsent for his assistance in the ELISA Assays.
REFERENCES
1. Faine S. Leptospirosis. Infectious Disease, Fifth Edition. 1994. Editors Hoeprich, Jordan Ronald: Chapter 65, 619-25.
2. Dupont, Dupont-Perdrizet D, Perie JL, Zehner-Hansen S, Jarrige B, J.B.Daijardin. Leptospirosis: Prognostic factors associated with mortality. CID 1997; 25:720-4.
3. Tan SK. Leptospirosis in Rural West Malaysia. Med J of Malaysia 1970; 4:261-6.
4. Ng TP. Epidemiology of Leptospirosis in Singapore. Infectious Diseases 1981; 319-24.
5. Farr. Leptospirosis. State-of-the-Art Clinical Article. Clin Inf Disease 1995; 21:1-8.
6. Murhekar, Sugunan AP, Vijayachari P, Sharma S, Sehgal SC. Risk factor in the transmission of leptospiral infection. Indian J Med Res 1998; 107:218-23.
7. Outbreak of acute febrile illness among athletes participating in triathlonsWisconsin and Illinois, 1998. JAMA1998; 280(17):1473-5.
8. Outbreak of leptospirosis among white-water rafters-Costa Rica, 1996. JAMA1997; 278(10)808-9.
9. Gravekamp, Kemp VD, Franzen M, Carrington D, Schoone GJ, G. Van Eys G, et al. Detection of seven species of pathogenic eptospires by PCR using two sets of primers. J Gen Microbiology 1993; 139:1691-700.
10. Bal, Gravekamp C, Hartskeerl R, Meza-Brewster JD, Korver H, Terpstra W. Detection of leptospires in urine by PCR for early diagnosis of leptospirosis. J Clin Micro 1994; 32(8):1894-8.
11. Romero, Billerbeck A, Lando V, Camargo E, Souza C, Yasuda P. Detection of leptospira DNA in patients with aseptic menengitis by PCR. J Clin Micro 1998; 36(5):1453-5.
12. INOX Dip-S-Ticks. Leptospira. Cat # 5065-01-50. Rev 6 1997.
13. PanBio. Leptospira IgM ELISA Test. Cat No. LPM-200. Rev 1998.
14. Kendell. Leptospirosis update. BMJ l991; 302:301-2.
15. George Watt. Leptospirosis. Current Science 1992 ISSN 0951-7375: 659-63.
16. Silva D, Nakamura P, Camargo E, Batista L, Vaz J, Romero E, et al. Immunodiagnosis of human leptospirosis by Dot – ELISA for the detection of IgM, IgG and IgA antibodies. Am Soc of Trop Med and Hygiene 1997; 56(6):650-5.
17. Winslow, Merry D, Pirc M, Devine P. Evaluation of a commercial enzymelinked immunosorbent assay for detection of immunoglobulin M antibody in diagnosis of human leptospiral infection. J Clin Micro 1997; 35(8):1938-42.
18. Watt L, Alquila L, Padre L, Tuazan M, Lauglalin L. The rapid diagnosis of leptospirosis: A prospective comparison of the dot enzyme-linked immunosorbent assay and the genus-specific microscopic agglutination test at different stages of illness. J Inf Dis 1988; 157(4):840-2.
19. Kaufmann, Weyant RS. Leptospiraceae. Bacteriology 19, Chapter 50: 621-2.
|
Avila Twilight by Mermet Corporation
Health Product Declaration v2.1
created via: HPDC Online Builder
CLASSIFICATION: 12 24 13 Furnishings: Roller Window Shades
PRODUCT DESCRIPTION: Avila Twilight is one of the most versatile blackout fabric collections on the market today, offering nine-room facing colors and a diverse palette of coordinating streetwise colors for design uniformity. Avila Twilight is redefining the traditional role of solar shade fabric solutions to one of a critical design assist by allowing for the exterior aesthetics of the shades and their impact on glazing appearance to be consistent with the design intent of the building facade. The fabric provides between 96% - 100% light blockage and its UV blockage is 100%. Avila Twilight is available in a width of 118 in (300 cm).
Section 1: Summary
Basic Method / Product Threshold
Material
Product
MATERIAL
PBT | END ]
CONTENT INVENTORY
Inventory Reporting Format
Nested Materials Method
Basic Method
Threshold Disclosed Per
Threshold level
100 ppm
1,000 ppm
Per GHS SDS
Per OSHA MSDS
Other
Residuals/Impurities
Considered
Partially Considered
Not Considered
Explanation(s) provided for Residuals/Impurities?
Yes
No
Yes
No
Yes
No
Yes
No
Are All Substances Above the Threshold Indicated:
Characterized
Percent Weight and Role Provided?
Screened
Using Priority Hazard Lists with Results Disclosed?
Identified
Name and Identifier Provided?
CONTENT IN DESCENDING ORDER OF QUANTITY
Summary of product contents and results from screening individual chemical substances against HPD Priority Hazard Lists and the GreenScreen for Safer Chemicals®. The HPD does not assess whether using or handling this product will expose individuals to its chemical substances or any health risk. Refer to Section 2 for further details.
|SUBSTANCE| RESIDUAL OR IMPURITY
GREENSCREEN SCORE | HAZARD TYPE
AVILA TWILIGHT [ POLYETHYLENE TEREPHTHALATE (PET) LT-UNK 2- PROPENOIC ACID, 2-METHYL-, POLYMER WITH ETHYL 2-PROP ENOATE AND METHYL 2-ME THYL -2-PROPENOATE (ACRYLIC POLYMER) LT-UNK TITANIUM DIOXID E LT-1 | CAN | END FLAME RETARDANTS (ANTIM ONY TRIOXIDE) NoGS BROMINATED FLAME RETARDANTS (BFR) (DECA) LT-1 |
Number of Greenscreen BM-4/BM3 contents ... 0
Contents highest concern GreenScreen
Benchmark or List translator Score ... LT-1
Nanomaterial ... No
INVENTORY AND SCREENING NOTES:
One or more of the substances inventoried were not disclosed by name or specific identifier due to proprietary compositions from suppliers. For one or more substances a general CAS number is used to represent the substance's family. Otherwise, only SDS level disclosure was available.
VOLATILE ORGANIC COMPOUND (VOC) CONTENT
CERTIFICATIONS AND COMPLIANCE See Section 3 for additional listings.
VOC emissions: UL/GreenGuard Gold Certified
Other: ROHS 2-2011/65/EU Restriction of Hazardous Substances Directive
CONSISTENCY WITH OTHER PROGRAMS
Pre-checked for LEED v4 Material Ingredients, Option 1
Third Party Verified?
Yes
No
PREPARER: Self-Prepared
VERIFIER:
VERIFICATION #:
SCREENING DATE: 2018-04-11
PUBLISHED DATE: 2018-07-26
EXPIRY DATE: 2021-04-11
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Section 2: Content in Descending Order of Quantity
This section lists contents in a product based on specific threshold(s) and reports detailed health information including hazards. This HPD uses the inventory method indicated above, which is one of three possible methods:
Basic Inventory method with Product-level threshold.
Nested Material Inventory method with individual Material-level thresholds
Nested Material Inventory method with Product-level threshold
Definitions and requirements for the three inventory methods and requirements for each data field can be found in the HPD Open Standard version 2.1, available on the HPDC website at: www.hpd-collaborative.org/hpd-2-1-standard
AVILA TWILIGHT
PRODUCT THRESHOLD:
100 ppm
RESIDUALS AND IMPURITIES CONSIDERED:
No
RESIDUALS AND IMPURITIES NOTES: No evidence of residuals and impurities was identified by any supplier or found in our manufacturing process. Therefore residuals and impurities were not considered.
OTHER PRODUCT NOTES: This HPD covers a range of colors for the base fabric and back-coating which leads to some variation in material composition. No alternate supplier or materials are applicable for this product.
POLYETHYLENE TEREPHTHALATE (PET)
ID:
25038-59-9
%:
30.0000 - 40.0000
GS:
LT-UNK
RC:
None
NANO:
No
ROLE:
Basecloth
HAZARDS:
AGENCY(IES) WITH WARNINGS:
None Found
No warnings found on HPD Priority lists
SUBSTANCE NOTES: This substance is used as the basecloth of the fabric
2-PROPENOIC ACID, 2-METHYL-, POLYMER WITH ETHYL 2-PROPENOATE AND METHYL 2-METHYL-2-PROPENOATE (ACRYLIC POLYMER)
ID:
25133-97-5
%:
15.0000 - 30.0000
GS:
LT-UNK
RC:
None
NANO:
No
ROLE:
Forming Film
HAZARDS:
AGENCY(IES) WITH WARNINGS:
None Found
No warnings found on HPD Priority lists
SUBSTANCE NOTES: This substance is used as a film on the basecloth.
TITANIUM DIOXIDE
ID:
13463-67-7
%:
5.0000 - 10.0000
GS:
LT-1
RC:
None
NANO:
No
ROLE:
Filler
HAZARDS:
AGENCY(IES) WITH WARNINGS:
CANCER
US CDC - Occupational Carcinogens
Occupational Carcinogen
CANCER
CA EPA - Prop 65
Carcinogen - specific to chemical form or exposure route
CANCER
IARC
Group 2B - Possibly carcinogenic to humans - inhaled from occupational sources
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SUBSTANCE NOTES: This substance is a filler for the film that additionally provides opacity.
FLAME RETARDANTS (ANTIMONY TRIOXIDE)
ID:
Not registered
SUBSTANCE NOTES: Antimony Trioxide Flame Retardant, CAS #: 1309-64-4. The Antimony Trioxide is bonded in to the coating, held in by the cross-linked binder. Any associated health risks are based on contact with the powder form during manufacture of the raw ingredient.
BROMINATED FLAME RETARDANTS (BFR) (DECA)
ID:
Not registered
SUBSTANCE NOTES:
DECA Flame Retardant, CAS #: 1163-19-5
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Section 3: Certifications and Compliance
This section lists applicable certification and standards compliance information for VOC emissions and VOC content. Other types of health or environmental performance testing or certifications completed for the product may be provided.
VOC EMISSIONS
UL/GreenGuard Gold Certified
GreenGuard
CERTIFYING PARTY:
Third Party
APPLICABLE FACILITIES:
All Facilities
CERTIFICATE URL:
https://spot.ul.com/main-
app/products/detail/5ad1e83055b0e82d946a0f0f?
keywords=avila&page_type=Products%20Catalog
ISSUE DATE:
2008-
01-10
EXPIRY DATE:
2019-
11-16
CERTIFIER OR LAB:
Environmental Institute
CERTIFICATION AND COMPLIANCE NOTES:
OTHER
ROHS 2-2011/65/EU Restriction of Hazardous Substances Directive
CERTIFYING PARTY:
Third Party
APPLICABLE FACILITIES:
All Facilities
CERTIFICATE URL:
ISSUE DATE:
2015-
01-20
EXPIRY DATE:
CERTIFIER OR LAB:
St. Louis
Testing Laboratories
CERTIFICATION AND COMPLIANCE NOTES:
Section 4: Accessories
This section lists related products or materials that the manufacturer requires or recommends for installation (such as adhesives or fasteners), maintenance, cleaning, or operations. For information relating to the contents of these related products, refer to their applicable Health Product Declarations, if available.
No accessories are required for this product.
Section 5: General Notes
Avila Twilight is a commercial blackout fabric composed of a polyester fabric with an acrylic back-coating. Mermet offers a range of colors for the base fabric and back-coating, which are covered by this HPD. Health hazards and screenings completed by the HPDC Online Builder tool.
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Section 6: References
MANUFACTURER INFORMATION
MANUFACTURER:
Mermet Corporation
ADDRESS:
5970 North Main Street
Cowpens South Carolina 29330, United States
WEBSITE:
www.mermetusa.com
CONTACT NAME:
Ali Fisher
TITLE:
Product Manager
PHONE:
8644635433
EMAIL:
firstname.lastname@example.org
KEY
OSHA MSDS Occupational Safety and Health Administration Material Safety Data Sheet
GHS SDS Globally Harmonized System of Classification and Labeling of Chemicals Safety Data Sheet
Hazard Types
GEN
AQU Aquatic toxicity
CAN Cancer
DEV Developmental toxicity
END Endocrine activity
EYE Eye irritation/corrosivity
Gene mutation
GLO Global warming
MAM Mammalian/systemic/organ toxicity
MUL Multiple hazards
NEU Neurotoxicity
OZO Ozone depletion
PBT Persistent Bioaccumulative Toxic
PHY Physical Hazard (reactive)
REP Reproductive toxicity
RES Respiratory sensitization
SKI Skin sensitization/irritation/corrosivity
LAN Land Toxicity
NF Not found on Priority Hazard Lists
GreenScreen (GS)
BM-3 Benchmark 3 (use but still opportunity for improvement)
BM-4 Benchmark 4 (prefer-safer chemical)
LT-P1 List Translator Possible Benchmark 1
BM-2 Benchmark 2 (use but search for safer substitutes)
BM-U Benchmark Unspecified (insuficient data to benchmark)
BM-1 Benchmark 1 (avoid - chemical of high concern)
Recycled Types
PostC Postconsumer
PreC Preconsumer (Post-Industrial)
Both Both Preconsumer and Postconsumer
None Does not include recycled content
Unk Inclusion of recycled content is unknown
Other Terms
Nested Method / Material Threshold Substances listed within each material per threshold indicated per material
Inventory Methods:
Nested Method / Product Threshold Substances listed within each material per threshold indicated per product Basic Method / Product Threshold Substances listed individually per threshold indicated per product
Nano Composed of nano scale particles or nanotechnology
Preparer Third party preparer, if not self-prepared by manufacturer
Third Party Verified Verification by independent certifier approved by HPDC
Applicable facilities Manufacturing sites to which testing applies
The Health Product Declaration (HPD) Open Standard provides for the disclosure of product contents and potential associated human and environmental health hazards. Hazard associations are based on the HPD Priority Hazard Lists, the GreenScreen List Translator™, and when available, full GreenScreen® assessments. The HPD Open Standard v2.1 is not:
a method for the assessment of exposure or risk associated with product handling or use,
a method for assessing potential health impacts of: (i) substances used or created during the manufacturing process or (ii) substances created after the product is delivered for end use.
Information about life cycle, exposure and/or risk assessments performed on the product may be reported by the manufacturer in appropriate Notes sections, and/or, where applicable, in the Certifications section.
The HPD Open Standard was created and is supported by the Health Product Declaration Collaborative (the HPD Collaborative), a customer-led organization composed of stakeholders throughout the building industry that is committed to the continuous improvement of building products through transparency, openness, and innovation throughout the product supply chain.
The product manufacturer and any applicable independent verifier are solely responsible for the accuracy of statements and claims made in this HPD and for compliance with the HPD standard noted.
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LT-UNK List Translator Benchmark Unknown (insufficient
LT-1 List Translator Likely Benchmark 1
information from List Translator lists to benchmark)
NoGS Unknown (no data on List Translator Lists)
|
Open Access International Journal of Endocrinology and Diabetes Volume 6 Issue 3 ISSN: 2694-3875
Honeymoon Phase by the effect of Low Carbohydrate Diet (LCD) after onset of Type I Diabetes (T1D)
Wood M a,b , Ebe K a,b and Bando H a,c*
aJapan Low Carbohydrate Diet Promotion Association (JLCDPA), Kyoto, Japan
bTakao Hospital, Kyoto, Japan
c
Tokushima University/Medical Research, Tokushima, Japan
Article Info
Article History:
Abstract
Received: 25 September, 2023
Accepted: 9 October, 2023
Published: 13 October, 2023
*
Corresponding author
: Wood M,
Bando H, Japan Low Carbohydrate
Diet Promotion Association
(JLCDPA), Kyoto, Japan;
DOI: https://doi.org/10.36266/IJED/158
The case is a 68-year-old female with Type 1 diabetes (T1D). She had an unremarkable history until 2017, and developed elevated HbA1c 7.5% in Nov 2018 with positive glutamic acid decarboxylase Antibody (GADA) 154 U/mL. Consequently, she was diagnosed as T1D and daily profile of blood glucose was studied by continuous glucose monitoring (CGM). For calorie restriction diet (CRD) days 1-2, and super-low carbohydrate diet (LCD) days 3-14, time in range (TIR) was increased from 82% to 100%. LCD prolonged the honeymoon phase for 16 months without insulin administration. After that, insulin degludec 2 units/day was initiated from Mar 2021.
Keywords: Glutamic Acid Decarboxylase Antibody (GADA); Continuous Glucose Monitoring (CGM); Low Carbohydrate Diet (LCD); Time in Range (TIR); Honeymoon Phase
Copyright: © 2023 Wood M, Bando H, et al. This is an open-access article distributed under the terms of the Creative Commons Attribution License, which permits unrestricted use, distribution, and reproduction in any medium, provided the original author and source are credited.
Introduction
From historical and medical points of view, diabetes has become a crucial disease across the world. For nutritional treatment, a calorie restriction diet (CRD) was formerly applied, and after that low carbohydrate diet (LCD) has been recently prevalent. Various studies for LCD have been reported, and clinical effects have been known for weight reduction, decrease of HbA1c value, improvement of fatty liver and so on [1]. Further, LCD contributes to drop in triglyceride (TG), lowdensity lipoprotein (LDL) and blood pressure, and elevation of high-density lipoprotein (HDL) [2]. Thus, its efficacy leads to reduction of insulin resistance, HbA1c and blood glucose variability for Type 2 diabetes mellitus (T2DM) [3].
clinical remission (PCR) has been used. This mechanism is involved in the maintenance of the function of remaining beta cells. Recently, some studies clarified that adequate therapy and follow-up on the clinical progress during the honeymoon phase possibly enable the prolongation of the honeymoon phase [8]. Generally, T1D cases enter the PCR phase about 3 months after initiating insulin treatment, and this phase would persist for approximately 6-9 months. Thus, several metabolic and clinical factors are involved in the analyses for the duration and remission rate of the honeymoon phase.
On the other hand, patients with type 1 diabetes mellitus (T1D) also have clinical effects from LCD [4]. Post-prandial blood glucose will be elevated acutely in T1DM patients [5]. In many studies, LCD effects on T1DM has been beneficial for HbA1c reduction, glycemic variability and mean amplitude of glycemic excursions (MAGE), improved time in range (TIR) and lipid profile [6]. Thus, LCD continuation for T1D may bring instant effects of lower blood glucose and beneficial efficacy for a long time. Some supportive multidisciplinary approaches will be expected associated with greater diet research and supervision [4].
Patients with T1D requires insulin treatment after onset of T1D. Among them, some cases may be necessary for smaller doses shortly after initiating insulin therapy [7]. This situation is commonly referred to the honeymoon phase or remission. In most cases, it is a rather partial status where the term partial
Authors and collaborators have initiated LCD at first in Japan and developed LCD clinically and socioeconomically [9]. We established the Japan LCD promotion association (JLCDPA) and enlightened numerous people about adequate and useful methods. They are super-LCD, standard-LCD and petite-LCD that includes carbohydrate in calorie ratio as 12%, 26% and 40%, respectively [10]. We have reported various reports on LCD practice and research for T2D, T1D, SPIDDM, LADA and so on [11,12]. During our practice and research, we recently experienced a meaningful T1D female patient with a longer honeymoon phase by continued LCD. Her medical course and related perspectives will be presented in this article.
Case Presentation
Medical History
Current case is a 68-year-old female with T1D. She has a previous history of cervical cancer with complete hysterectomy, childhood asthma, acute cholangitis and reflux esophagitis (RE) but no pertinent family history. She managed RE symptoms
Pubtexto Publishers |www.pubtexto.com1 Int J Endocrinol Diabetes
with LCD for five years leading to her T1DM diagnosis. HbA1c and fasting blood glucose (FBG) values were normal in 2016 and 2017 on annual health check reports. However, HbA1c and FBG were acutely elevated in late 2018. Further workup revealed glutamic acid decarboxylase Antibody (GADA) to be 154 U/mL (normal limit <5), and then she was diagnosed with T1D in November 2018. IRI value at diagnosis was 4.1μU/mL, indicating maintained endogenous insulin production.
In early 2019, the patient was admitted to Takao Hospital for further evaluation and treatment. She received both meals of CRD and LCD, associated with continuous glucose monitoring (CGM). She was not provided any oral hypoglycemic agents (OHAs) or injections. In day 1 and 2, she was provided 1400kcal CRD meals recommended by the Japan Diabetes Society (JDS). During day 3 to 14, she was provided isocaloric super LCD meals that contains 12% of carbohydrate. For its detailed calculation, 1400 kcal/day x 0.12 = 168 kcal/day, and 168 kcal divided by 4 kcaｌ/g (carbohydrate) equals to 42g of carbohydrate per day.
Several exams
As a result of CGM, time in range (TIR; 70-180 mg/dL) for days 1 and 2 was 82% and 89%, respectively (Figure 1). After that, TIR was gradually increased from days 3-5. For 14 days, TIR increased from 82% to 100%, and time above range (TAR) decreased from 18% to 0%.
The results of biochemistry in Dec 2018 were as follows: HbA1c 7.5%, glycoalbumin 17.5%, BG 162 mg/dL, TG 77mg/dL, HDL 114 mg/dL, LDL 121 mg/dL and Cre 0.68 mg/dL. TIR showed 100% on day 8 until completion on day 14. The value of 24-hour urinary C-peptide excretion was 48.0 and 41.8 μg/day on days 3 and 4, respectively, which is lower limit normal.
Clinical progress
When she had taken CRD meal, her RE symptoms returned. Because of abdominal discomfort, she could not tolerate primarily carbohydrate-containing foods, such as rice. Following the initiation of super LCD on day 3, RE symptoms were alleviated. Despite taking no RE medications, such as proton pump inhibitors (PPIs), the patient has remained symptom-free with dietary intervention alone. No diabetes medications were prescribed at discharge. The patient's HbA1c and FBG remained stable until around the end of 2019, in which IRI was 1.4 μU/mL in November 2019, which was slightly decreased from the previous measurement.
A mutual decision was made to initiate Tresiba 2U once daily in March 2020, which provided adequate glycemic control. Insulin units have gradually been titrated up and the current dosage of Tresiba is 6-7U daily. The last CPR value was 0.3 ng/mL in January 2022, indicating continuing endogenous insulin production. The patient was 50 kg at diagnosis with weight stabilizing to around 44-46 kg (BMI 17.2 - 18.0 kg/m 2 ) throughout the clinical course. No elevation in creatinine or decline in kidney function markers was noted. The results of CGM in November 2020 are shown in Figure 2, in which the daily profile of blood glucose showed stable.
Changes in laboratory results and treatment by insulin administration are summarized in Table 1. It shows the data from 2016 to 2023, and the type and amount of insulin used. The case has been using insulin degludec (genetical recombination), a long-acting soluble insulin analogue injection (brand name Tresiba®) [13]. The case received no insulin injections during the first few years. Afterwards a small dose of degludec was initiated and the dose has been slowly increased until now (Table 1).
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Table 1: Changes in laboratory results and insulin treatment.
| Time | | Glucose variability | | | Endogeneous insulin | | | Treat | | |
|---|---|---|---|---|---|---|---|---|---|---|
| Year/Mo | | HbA1c | GA | SBG | IRI | CPR | U-CPR | Unit | TG | HDL |
| 2016 | 12 | 5.4 | | 85 | 4.1 1.4 | 0.4 0.3 | 48 | 0 | 44 | 110 |
| 2017 | 11 | 5.6 | | 93 | | | | 0 | 54 | 116 |
| 2018 | 11 | 7.2 | | 150 | | | | 0 | 86 | 108 |
| | 12 | 7.5 | 17.5 | 162 | | | | 0 | 77 | 114 |
| 2019 | 3 | 6.7 | 14.7 | 124 | | | | 0 | 52 | 108 |
| | 11 | 7.0 | 16.2 | 149 | | | | 0 | 45 | 111 |
| 2020 | 3 | 7.0 | 14.2 | 155 | | | | 2 | 77 | 104 |
| 2021 | 2 | 6.9 | 16.6 | 136 | | | | 3 | 48 | 109 |
| | 7 | 7.1 | 17.1 | 126 | | | | 4 | 45 | 103 |
| 2022 | 1 | 7.1 | 14.8 | 107 | | | | 6 | 61 | 109 |
| | 6 | 6.9 | 14.9 | 114 | | | | 7 | 64 | 102 |
| | 11 | 7.1 | 18.0 | 127 | | | | 7 | 52 | 108 |
| 2023 | 3 | 6.9 | 16.8 | 139 | | | | 7 | 62 | 100 |
| | 9 | 7.1 | 19.1 | 113 | | | | 7 | 61 | 99 |
Ethical considerations
Current patient was complied with the standard ethical guideline for Helsinki Declaration. Moreover, certain comment was found for personal information. The related principle is present in ethical rule for medical research and practice. These guidelines have been on the regulation from Japanese government. It has included Ministry of Health, Labor and Welfare and Ministry of Education, Culture, Sports, Science Technology. The author's et al. established the ethical committee concerning the case. It is present in Takao Hospital, Kyoto, Japan. This committee contains some clinical staffs, such as hospital president, physician majoring in diabetes, nurse pharmacist, dietitian, laboratory staff as well as legal professional personnel. These committee members have discussed in the satisfactory manner. The informed consent document was provided from the current case by the written data.
discomfort/disturbance and so on. These improvements are from decreased intake amount of carbohydrate. LCD also has various efficacy from elevated ketone bodies (KB) in the blood. KB shows clinical effects for neurodegenerative diseases such as Alzheimer's disease (AD) and Parkinson's disease (PD) [14]. Furthermore, KB has treatment potential for cardiovascular diseases and cancer. KB metabolism would bring dysregulation for tumorigenesis in several types of cancer [15].
Discussion
This case has several unique characteristics, which can be summarized into four aspects as follows. They are 1) The patient had been on LCD for some time due to childhood asthma and reflux esophagitis (RE), 2) After the onset of T1D, the honeymoon phase continued due to the effect of super-LCD, and insulin therapy was not required for several years, 3) CGM results revealed CRD and LCD differences, and 4) the lipid characteristics were high HDL and low TG/HDL-C ratio. The discussion is presented below in this order.
Second, due to the effects of super-LCD, the honeymoon phase is prolonged and insulin therapy was not required for several years. When this patient developed T1D, her weight was 50 kg, his BMI was 19.56, and she was thin. During the subsequent course, the patient weighed 44–46 kg and had a BMI of 17.2– 18.0. Research for the honeymoon phase has been observed. Partial clinical remission (PCR) was investigated in 159 T1D subjects [16]. Cases with higher BMI at the onset showed a shorter period of PCR than the average cases. In addition, other findings revealed that i) younger age onset may predict possible comorbidity of Celiac disease, ii) female case and lower HCO3 value at onset of T1D may predict less PCR period. Another study was found for PCR status in T1D onset, in which two groups were compared between PCR (+) and PCR (-) [17]. The protocol included the measurement of several markers, such as HbA1c, glycemic target-adjusted HbA1C (GTAA1C), insulin dose-adjusted hemoglobin A1C (IDAA1C) and actual result of glucose monitoring from 189 cases with newly onset T1D.
Third, this case received 14 days' CGM exam with CRD in 1-2 days and LCD in 3-14 days, in which TIR changed from 82% to 100% and TAR 18% to 0%. Thus, CGM showed quite useful data for instant changes in detailed blood glucose variability. The Guidelines for blood sugar control using CGM was announced in 2019, and the target range was defined as 70-
Pubtexto Publishers | www.pubtexto.com 3 First, LCD has been known for its various benefits on clinical symptoms. They include relieved allergic symptoms in dermatitis, hay fever, bronchial asthma, gastrointestinal
180mg/dL, which is called time in range (TIR) [18]. Furthermore, TAR (time above range) and TBR (time below range) were defined as >180 mg/dL and <70 mg/dL, respectively. In usual clinical practice for T1D and T2D, TIR is indicated for >70% as a target value. TIR is approximately 70% when HbA1c is 7% [19,20]. TIR has been known to correlate with average blood glucose values, but its correlation is weak for lower glucose range [21]. Thus, TIR differs fundamentally from previous diabetic markers such as HbA1c and glycoalbumin.
Recently glycemic risk index (GRI) has been introduced as a novel composite CGM metric [22]. It provides a larger emphasis on hypoglycemia rather than hyperglycemia [23]. The optimal duration for CGM was studied with GRI investigation [24]. The protocol included continuous 90 days in maximum. As a result, 14 days sampling seemed to be adequate, and 7 days of CGM can estimate proper GRI to monitor glycemic changes. Out of T1D patients (n=202), an association of GRI and other metrics was studied by intermittent scanning continuous glucose monitoring (is CGM) [25]. As a result, GRI showed the highest correlation with TIR, and a high correlation with hypoglycemia, hyperglycemia, HbA1c, and other factors. Fourth, this case has high HDL values probably from genetic characteristics as well as stable LDL values after LCD for years. Her lipid profile at onset of T1D showed TG 44 mg/dL, HDL 110mg/dL and LDL 107 mg/dL. Genetic findings have been identified in variants of familial hypercholesterolemia, where LDL-altering variants include APOE and ABCG8, and HDLaltering variants include ABCA1 and CETP [26]. HDL has been evaluated as a crucial role in atherosclerosis and possible positive effect in ASCVD therapy [27]. Regarding lipid panel concerns, patients on LCD will have a decrease, increase, or no change in LDL value [28]. An LDL-centered model has been known for predicting ASCVD risk [29]. In addition, TG to HDL ratio has been an important metabolic index, and TG/HDL > 3.5 is associated with insulin resistance and a greater risk of cardiovascular disease (CVD) [30]. The odds ratio for myocardial infarction regarding high compared to low TG/HDL-C ratio is 3.0 [31].
Certain limitations may exist in the article. The current case applied LCD for Reflux Esophagitis (RE) before T1D development. LCD seemed to be effective for glucose variability, but other factors may be involved in stable clinical progress, such as maintained beta cell function, lipid profile, slender physique and others.
In summary, the current case is an impressive female case, who has some characteristic features associated with the honeymoon phase. She has had stable diabetic variability for years, and the clinical progress will be followed carefully in the future.
Conflict of interest: The authors declare no conflict of interest.
Funding: There was no funding received for this paper.
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ISSN Online: 2208-3693
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Effect and Significance of Comprehensive Training in Infection Prevention and Control on the Psychological Health of Oral Health Staff
Zijian Wu 1 , Manli Zhang 2 *
1Clinical Research Management Department, Affiliated Cancer Hospital & Institute of Guangzhou Medical University, Guangzhou 510095, Guangdong Province, China
2Hospital Office, Affiliated Stomatological Hospital of Guangzhou Medical University, Guangzhou 510140, Guangdong Province, China
*Corresponding author: Manli Zhang, firstname.lastname@example.org
Copyright: © 2023 Author(s). This is an open-access article distributed under the terms of the Creative Commons Attribution License (CC BY 4.0), permitting distribution and reproduction in any medium, provided the original work is cited.
Abstract: Background: Oral health staff have close contact with patients in the process of diagnosis and treatment, and it is inevitable for them to come into contact with patients' secretions. Therefore, oral health staff are at greater risk of infectious diseases in their daily work, and their psychological health is also greatly challenged. Objective: To study the effect and significance of comprehensive training in infection prevention and control on the psychological health of oral health staff. Methods: We selected 400 oral health staff from a tertiary stomatological hospital in Guangzhou, China in this study. The respondents were randomly divided into an intervention group and a control group. After the first round of investigation, the intervention group received comprehensive training in prevention and control of infection for three months, while the control group received no intervention. Results: The comprehensive training in infection prevention and control improved the respondents' psychological health and job satisfaction. Further strengthening infection prevention and control training for oral health staff will increase their self-confidence, improve their mental health, and increase their job satisfaction. Conclusion: For oral health staff, it is particularly important to formulate an effective and operable preventive and control training program and then implement it in a standardized manner.
Keywords: Oral health staff; Infection prevention; Infection control; Psychological health; Comprehensive training; Job satisfaction
Online publication: May 30, 2023
1. Introduction
Studies have shown that medical workers need to be in close contact with patients of various diseases in the diagnosis and treatment process; thus, they will be at high risk for infection [1] . This situation has a significant impact on the psychological health of medical workers, as they experience varying levels of anxiety and stress due to fears of possible infection or the possibility of transmitting diseases to their family members [2] . In a study, medical staff were invited to participate in a questionnaire survey on the level of anxiety to infectious diseases. The results showed that a large proportion of medical staff expressed significant anxiety and fear of getting infected by infectious diseases [3] .
Since secretions act as a transmission medium for certain infectious diseases, and oral health workers are unable to avoid exposure to these substances in their daily work, the risk of infection faced by staff in the department of stomatology, compared with other specialties, is relatively high [4,5] . The droplets formed by high-speed dental handpieces, air/water guns, ultrasonic dental cleaning, and other oral medical equipment or the droplet nuclei formed by these substances can be suspended in the air in the form of aerosols for more than half an hour [6] . If these substances with the source of infection permeate in the air or splash onto the face or eyes, they can cause infection. Therefore, the psychological health of oral health workers is greatly challenged. In a survey of dentists, it was found that most of respondents were worried about suffering from infectious diseases upon exposure to secretions during oral treatment [7] . Through psychological assessments, it was found that half of the respondents showed some symptoms of anxiety. The most common concern of the respondents was the possibility of them contracting infectious diseases and then passing them on to their family, followed by anxiety about their own risk of infection at work [8] . A survey has found that most nurses in dental clinics were worried about being infected in clinical activities [9].
2. Research model and hypotheses
2.1. Impact of comprehensive training in infection prevention and control on the psychological health of oral health staff
Studies have shown that some oral health workers are unfamiliar with prevention and control measures and lack prevention and control training. Furthermore, there is no guarantee for these high-risk workers in terms of occupational protection. According to a survey on oral health staff's understanding of their protection status [10] , a significant proportion of respondents lacked knowledge of prevention and control of nosocomial infection and scored lower than average in terms of awareness of infection transmission pathways, infective fluids, human immunodeficiency virus (HIV) transmission, and unhealthy behaviors. From this, the conclusion was that some practitioners in dental institutions lacked training in nosocomial infection [10] . The risk of infection among medical staff and the predisposition to negative emotions, such as fear and anxiety, increase with the lack of basic knowledge of hospital infection prevention and control, familiarity with the standardized nosocomial infection prevention and control operation procedures, as well as the standardized implementation of prevention and control measures.
2.2. Role and significance of comprehensive training in infection prevention and control
In a survey on dental students, the vast majority of respondents deemed that knowledge training in nosocomial infection prevention and control has a guiding role in personal infectious disease prevention and control [11] . It has also been pointed out that dentists need to have good psychological health as well as scientific and effective knowledge reserves on prevention and control. If they can effectively protect themselves, they may have higher confidence in the diagnosis and treatment of diseases, thus overcoming their fears [12] .
2.3. Impact of psychological health of oral health workers on job satisfaction
Studies have shown that the fear and pressure that doctors endure in diagnosis and treatment have a great impact on job satisfaction. A study has found that mental stress can lead to chronic fatigue and unhealthy lifestyles among doctors, thereby being an important factor that affects job satisfaction [13] . A survey on 1,100 medical staff has shown that psychological health status is significantly related to job satisfaction and significant psychological health issues could reduce job satisfaction and affect the quality of service provided to patients [14] .
2.4. Research model
Through literature study, we can infer the priori hypothesis linking the three observed variables: "knowledge and norms of infection prevention and control," "degree of psychological impact," and "job satisfaction of oral health staff." We used these variables as the observed variables in this study and constructed a hypothetical model (Figure 1).
Studies have shown that strengthening the training in infection prevention and control plays an important role in improving the psychological health and job satisfaction of oral health workers. Through literature review, previous research on the psychological health of oral health workers predominantly remained in a relatively isolated or static perspective. Recruiting oral health staff in Guangzhou, China as respondents, we conducted two rounds of surveys to evaluate the changes of oral health staff, such as their psychological health and job satisfaction, after receiving intervention (comprehensive knowledge and skills training in infection prevention and control).
H1: The degree of comprehensive training in the knowledge and norms of infection prevention and control negatively affects the degree of psychological impact of oral health staff.
H2: The degree of psychological impact of oral health staff negatively affects their job satisfaction.
3. Method
3.1. Respondents and source
The respondents of this study were stomatologists and nurses from a tertiary stomatological hospital in Guangzhou, age ranging from 18 to 60. Guangdong Province occupies a considerable proportion of China's oral healthcare system and is currently one of the three major national medical centers in China. Guangzhou, as the capital of Guangdong Province, has taken on a leading role in China's medical and health development. This hospital is a specialized stomatological hospital with great influence in South China oral industry in terms of its technical level, social benefit, and scale; it is a representative hospital of the industry. This study was reviewed and approved by Medical Ethics Committee of Affiliated Stomatological Hospital of Guangzhou Medical University. The participants provided written informed consent prior to participating in this study.
3.2. Survey design and implementation
The survey was conducted using printed and electronic questionnaires. The data were organized in a database by a specially designated person and checked by two independent people. The first round of survey (R1) was carried out in October 2021, and the samples were selected based on the inclusion criteria. After the end of R1, the researchers analyzed the data to understand the respondents' scores on each subscale as a baseline to verify the hypothesized relationship. Thereafter, the respondents were randomly divided into two groups. One group was selected to receive comprehensive knowledge and skills training in nosocomial infection prevention and control for a period of three months, and this group was named "intervention group"; the other group did not receive training, and was named "control group." After training, the second round of survey (R2) was conducted in March 2022. The questionnaire was the same one used in R1. Differences between the two cross-sections and two groups were assessed by data analysis from both rounds of survey.
3.3. Comprehensive knowledge and skills training in nosocomial infection prevention and control for the intervention group
3.3.1. Establish a training group
The training group was made up of experts who were infection control management professionals from both inside and outside the hospital and had participated in systematic, standardized, and comprehensive knowledge and skills training in nosocomial infection as well as obtained appropriate certification of competency.
3.3.2. Professional theoretical training
Relevant knowledge of infectious disease prevention and disinfection as well as quarantine was explained by the experts. They demonstrated the standard procedure of putting on and taking off protective clothing. The oral health staff were required to put on and take off their protective clothing on site. The issues found in the current operation of each team member in wearing and taking off their protective clothing were corrected to enhance the staff's ability and awareness of emergency protection against infectious diseases as well as improve the basic skills of the trained staffs in putting on and taking off personal protective equipment.
3.3.3. Skills training
(i) With reference to corresponding international and national norms and guidelines, the staff were trained to specify the types of personal protective equipment (PPE) and gain proficiency in the methods and procedures of wearing and taking off PPE. The standard PPE includes masks, medical protective clothing, and gloves.
(ii) The staff were trained in hand hygiene, encouraged to implement the five hand hygiene indicators of the World Health Organization (WHO) in accordance with the requirements of standard prevention, and learned the seven-step hand washing method.
3.4. Instrumentation
Based on the research model and literature review, we developed a measurement system on the basis of the mature scales applied in related research. Subscales based on three major variables were established, so were the corresponding measurement dimensions of each variable. The research framework based on literature review is shown in Table 1.
(i) Knowledge and norms of infection prevention and control: standard diagnosis and treatment (SDT), hand hygiene (HH), and personal protection (PP).
(ii) Degree of psychological impact: psychological impact of work (PIW) and psychological impact of life (PIL).
(iii) Job satisfaction: general feeling (GF), management style (MS), and work autonomy (WA).
Table 1. Research framework
Abbreviations: GF, general feeling; HH, hand hygiene; MS, management style; PIL, psychological impact of life; PIW, psychological impact of work; PP, personal protection; SDT, standard diagnosis and treatment; WA, work autonomy.
3.5. Scale construction
3.5.1. Delphi method
On the basis of the established dimensions and index system and in line with literature review, we integrated the items that meet the research design goals and used Excel to build an item pool. Two experts with good nosocomial infection knowledge and familiarity with the diagnosis and treatment process were commissioned to classify and sort the items according to the research design using the Q-sort technique. Through three rounds of sorting, the experts had basically the same opinions on sorting and classification. In combination with the results, we screened out items with relatively good validity to formulate the initial scale.
3.5.2. Preliminary investigation
We randomly selected eight oral health staff from the hospital who met the inclusion criteria and invited them to fill in the initial scale. Based on their feedback, some items were inappropriately expressed. Therefore, we made further modifications and identified the official version of the formal questionnaire. The questionnaire mainly consisted of closed-ended questions in seven-point Likert scale (1 = strongly disagree; 7 = strongly agree).
3.5.3. Encoding and translation
We coded the measurement items of each dimension accordingly. The coding principle was as follows: English initial abbreviation of the dimension corresponding to the item + item serial number." Taking the subscale corresponding to SDT as an example, the item codes are as follows: SDT1, SDT2, …SDT7. Part of the measurement items were taken from literatures in English, so the preliminary questionnaire was compiled in English (the questionnaire can be obtained from https://www.scidb.cn/s/7jeUn2). However, since the survey was conducted in China, we invited a bilingual translator who is familiar with both Mandarin and English to translate the preliminary English-version questionnaire into Chinese and then invited another bilingual translator to translate the Chinese-version questionnaire into English, so as to make sure that both the English and the Chinese versions are accurate.
3.5.4. Statistical analysis
SPSS 24.0 and Amos 21 were used for statistical processing.
(i) SPSS 24.0 was used for the following processing: data entry, reliability analysis, validity analysis (exploratory factor analysis), statistical description, correlation analysis, and difference analysis.
(ii) Amos 21 was used for the following analyses: confirmatory factor analysis and establishment of structural equation model.
4. Results
4.1. Descriptive statistics
A total of 413 questionnaires were distributed in R1, and 405 questionnaires were collected, with a collection rate of 98.1%. There were 400 valid questionnaires, with an overall effective rate of 98.8%. Among the respondents, 210 (52.5%) were male, and 190 (47.5%) were female; 317 (79.3%) had a master's degree or above, while 83 (20.8%) had a bachelor's degree or below; 193 were doctors (48.3%), while 207 were nurses (51.8%); 360 (90%) were married, while 40 (10%) were single or divorced; 311 (77.8%) had children, while 89 (22.3%) were childless; 208 (52%) did not live alone, while 192 (48%) lived alone.
4.2. Reliability and validity analysis
Through adaptive test of each subscale, the Kaiser-Meyer-Olkin (KMO) value of each subscale was greater than 0.9, and Bartlett's test of sphericity showed that P < 0.001. Therefore, principal component factor analysis could be performed on each subscale. We used the varimax method to orthogonally rotate the factors, analyzed the results of 25 iterations of convergence, and extracted principal components with eigenvalues greater than 1 as common factors. The factor load value of all measurement items was more than 0.6. The items included in the eight common factors were all consistent with the original questionnaire design dimensions. The questionnaire had good validity.
4.3. Differences in the scores of different individual characteristics in each dimension
In order to compare the differences in scores of the corresponding items in each dimension among respondents with different gender, age, educational background, marital and childbirth status, and occupation, we used an independent sample t-test to analyze the results. The results showed that the difference in scores of respondents with different gender were not statistically significant (P > 0.05). Compared with the respondents in the "40–59" age group, those in the "18–39" age group had lower mean scores in PIW and PIL, but their mean scores in PP, GF, and MS were higher, and the difference was statistically significant (P < 0.05). See Table 2 for details.
Table 2. Difference tests of ages and variables
Abbreviations: GF, general feeling; HH, hand hygiene; MS, management style; PIL, psychological impact of life; PIW, psychological impact of work; PP, personal protection; SDT, standard diagnosis and treatment; WA, work autonomy.
As shown in Table 3, compared with respondents with "bachelor's degree or below," those with "master's degree or above" had lower mean in PIW and PIL, and the difference was statistically significant (P < 0.05). There were no significant differences in the scores of the remaining dimensions.
Table 3. Difference tests of education background and variables
Abbreviations: GF, general feeling; HH, hand hygiene; MS, management style; PIL, psychological impact of life; PIW, psychological impact of work; PP, personal protection; SDT, standard diagnosis and treatment; WA, work autonomy.
In terms of marital and childbearing factors, compared with "single or divorced" respondents, "married" respondents had higher mean in PIW and PIL, but lower mean in SDT, HH, PP, GF, MS, and WA. All differences were statistically significant (P < 0.05), as shown in Table 4. Compared with respondents "without children," those "with children" had higher mean in PIW and PIL, and the difference was statistically significant (P < 0.05). There was no significant difference in the scores of other dimensions (see Table 5).
Table 4. Difference tests of marital status and variables
(Continued on next page)
(Continued from previous page)
Abbreviations: GF, general feeling; HH, hand hygiene; MS, management style; PIL, psychological impact of life; PIW, psychological impact of work; PP, personal protection; SDT, standard diagnosis and treatment; WA, work autonomy.
Table 5. Difference tests of procreation status and variables
Abbreviations: GF, general feeling; HH, hand hygiene; MS, management style; PIL, psychological impact of life; PIW, psychological impact of work; PP, personal protection; SDT, standard diagnosis and treatment; WA, work autonomy.
Compared with nurses, doctors had higher mean in PIW, but lower mean in SDT, HH, PP, GF, MS, and WA, and the difference was statistically significant (P < 0.05). There was no significant difference in PIL between doctors and nurses (see Table 6).
Table 6. Difference tests of occupation and variables
(Continued on next page)
(Continued from previous page)
Abbreviations: GF, general feeling; HH, hand hygiene; MS, management style; PIL, psychological impact of life; PIW, psychological impact of work; PP, personal protection; SDT, standard diagnosis and treatment; WA, work autonomy.
4.4. Building a structural equation model
We built a structural equation model in this study to verify the research hypothesis. First, Amos 21 was used to establish a structural equation model based on the hypothesis, as shown in Figure 2. Each fitting index of the model reached the ideal value, indicating that the model fits well (minimum discrepancy function by degrees of freedom divided [CMIN/DF] = 1.357; root mean square error of approximation [RMSEA] = 0.03; normed fit index [NFI] = 0.903; incremental fit index [IFI] = 0.973; Tucker-Lewis index [TLI] = 0.971; comparative fit index [CFI] = 0.972; root mean square residual [RMR] = 0.065).
According to Table 7, in the full sample, SDT (β = -0.196, P = 0.000), HH (β = -0.405, P = 0.000), and PP (β = -0.379, P = 0.000) had significant direct negative effect on PIW; SDT (β = -0.149, P = 0.000), HH (β = -0.352, P = 0.000), and PP (β = -0.454, P = 0.000) had significant direct negative effect on PIL. Therefore, each dimension (SDT, HH, and PP) under the variable "knowledge and norms of infection prevention and control" in the research hypothesis model had significant negative effect on each dimension (PIW and PIL) of the variable "degree of psychological impact" (H1 supported). We also learned through analysis that PIW (β = -0.491, P = 0.000) and PIL (β = -0.412, P = 0.000) had significant direct negative effect on GF; PIW (β = -0.512, P = 0.000) and PIL (β = -0.236, P = 0.001) had significant direct negative effect on MS; PIW (β = -0.240, P = 0.003) and PIL (β = -0.360, P = 0.000) had significant direct negative effect on WA. Therefore, each dimension under the variable "degree of psychological impact" in the research hypothesis model had significant negative effect on each dimension (GF, MS, and WA) of the variable "job satisfaction" (H2 supported).
Table 7. Model analysis results
Abbreviations: SE, standardized effect; C.R., critical ratio; GF, general feeling; HH, hand hygiene; MS, management style; PIL, psychological impact of life; PIW, psychological impact of work; PP, personal protection; SDT, standard diagnosis and treatment; S.E., standard error; WA, work autonomy.
5. Comparison of results of the two rounds of survey
5.1. Comparison of scores between groups before and after R2
The 400 respondents who participated in R1 were randomly divided into an intervention group and a control group, with 200 individuals in each group. In order to ensure the reliability of the verification, a pre-test was carried out on the two groups before R2 to evaluate the differences in scores of the two groups in each dimension. Through analysis, no significant difference was observed between the two groups in their scoring (PIW: t = 0.096, P = 0.923; PIL: t = 0.082, P = 0.935; SDT: t = -0.314, P = 0.754; HH: t = -0.485, P = 0.628; PP: t = -0.121, P = 0.904; GF: t = -0.398, P = 0.691; MS: t = 0.023, P = 0.981; WA: t = -1.212, P = 0.226).
After the intervention group completed the training as planned, the second round of survey was carried out. A post-test was carried out for both the groups, and t-test was used to compare and analyze the differences in scores of each dimension between the two groups in the second round of survey. According to Table 8, it can be seen that the mean scores of the intervention group in PIW and PIL, compared with the control group, were lower, but the mean scores in other dimensions were higher, and the difference was
statistically significant (P < 0.05).
Table 8. Post-test difference analysis
Abbreviations: GF, general feeling; HH, hand hygiene; MS, management style; PIL, psychological impact of life; PIW, psychological impact of work; PP, personal protection; SDT, standard diagnosis and treatment; WA, work autonomy.
5.2. Difference in scores between groups in the two rounds of survey
We compared and analyzed the scores of the control group for each dimension in the two rounds of survey, and the results showed that the difference in the mean scores of the control group in the two rounds of survey was not statistically significant (P > 0.05). According to Table 9, the mean scores of the intervention group in the second round of survey were lower compared with those in the first round of survey in terms of PIW and PIL but higher in other dimensions. The differences were statistically significant (P < 0.05).
Table 9. Difference tests of the intervention group in R1 and R2
(Continued on next page)
(Continued from previous page)
Abbreviations: GF, general feeling; HH, hand hygiene; MS, management style; PIL, psychological impact of life; PIW, psychological impact of work; PP, personal protection; SDT, standard diagnosis and treatment; WA, work autonomy.
6. Discussion
6.1. Relationship between variables and dimensions
Based on our results, our hypothesis is supported. The more inferior their prevention and control capabilities, the more pronounce the negative impact on the psychological health and job satisfaction of oral health staff, and vice versa. Through group test and comparison of results of the two rounds of survey, no significant difference was observed between groups in R1. After the intervention, the scores of the intervention group in terms of "degree of psychological impact" (PIW and PIL) were significantly lower than those of the control group, and the scores of the former in terms of "knowledge and norms of infection prevention and control" (SDT, HH, and PP) and "job satisfaction" (GF, MS, and WA) were significantly higher than those of the latter. In R2, the scores of the intervention group in terms of "degree of psychological impact" significantly decreased, but the scores in "knowledge and norms of infection prevention and control" and "job satisfaction" significantly increased. The difference between scores of the control group in the two rounds of survey was insignificant. Thus, we can see that by receiving comprehensive knowledge and skills training in nosocomial infection prevention and control, the infection prevention and control capability, psychological status, and job satisfaction of the intervention group were significantly better than their own performance in R1 and that of the control group. Therefore, comprehensive training in nosocomial infection prevention and control plays a positive role in enhancing the psychological quality of oral health staff and improving their job satisfaction.
6.2. Influence of different individual attributes on various variables and dimensions
Through analysis, it was observed that the prevention and control capability of young respondents are not as good as that of older respondents. It is believed that this is related to the fact that senior oral health staff have undergone more training in the past and have a relatively solid business foundation. Concerning the relationship between age and job satisfaction, previous studies have revealed different findings. It has been proven that senior professionals bring about stronger job adaptability and higher satisfaction [19] . However, there are also research results suggesting that senior professionals are discriminated against due to the decline of knowledge and skills, thereby reducing job satisfaction [20] . The results of the present study suggested that the satisfaction of young oral health staff is higher than that of older staff. We reason that since senior oral health staff have different career goals, life experiences, living conditions, and demands on working conditions and environment from back when they were younger, their threshold of job satisfaction is higher. In addition, it has also been found that dentists aged 35–55 are more concerned and anxious about their career prospects. Perhaps, this is also one of the causes of their low job satisfaction [21] . In terms of the degree of psychological impact, the impact on those with higher education levels is lesser than those with lower education levels. Education background has a positive effect on individual psychological accomplishment. Medical personnel with higher education levels have advantage in coping with stress and handling psychological issues since they tend to experience different challenges in learning and academic research. Our results showed that married respondents had poor prevention and control capability but were less psychologically affected and satisfied with their jobs. Dentistry is a high-intensity but high-income occupation, and family ties do affect the investment of oral health staff in medical learning. Also, due to changes in living conditions and levels of demand, they have higher expectations for work, which may cause psychological discrepancy. In addition, research has shown that marriage and family are protective factors of individual psychological health. Individuals who are married and have families are more able to cope with stress and negative emotions, with their spouses acting as an alternative support [22] . The results of the present study are consistent with this conclusion. In our study, the degree of psychological impact was higher in respondents with children. Considering that dental work has a high risk of infection, out of concern for the health of their children, those with children are affected to a certain extent in terms of their psychological status.
7. Conclusion
Greater risk of infection from infectious diseases has brought great challenges to the psychological health of oral health staff engaged in oral diagnosis and treatment. Through this study, we showed that the knowledge and skills of oral health staff in infection prevention and control are closely related to their psychological health and job satisfaction. It is particularly important to formulate an effective and operable protection training program and implement it in a comprehensive and standardized manner for those engaged in high-risk diagnosis and treatment. In addition, due to the particularity of the occupation, differences in their demographics, including education background, age, marital status, and procreation status, have different effects on their professional literacy, psychological quality, and job satisfaction. These factors should be taken into account by hospital managers. In the present study, only one case in China was selected for research. In the future, multiple representative survey cases can be used to carry out further extended research. Qualitative methods such as in-depth interviews and grounded theory can be adopted to further verify or explore the relationship among the variables.
Acknowledgments
The authors wish to thank Professor Virginia Trigo from University Institute of Lisbon for providing part of the materials to support the research.
Funding
This article is based on the 2021 co-construction project of the "14th Five-Year Plan" for the development of philosophy and social sciences in Guangzhou, China (Project number: 2021GZGJ219), and it is the research result of this project.
Disclosure statement
The authors declare no conflict of interest.
Author Contributions
Data curation: Z.W.
Methodology: Z.W.
Supervision: M.Z.
Validation: M.Z.
Writing – original draft: Z.W.
Writing– review and editing: M.Z.
References
[1] Wu X, Jiang R, 2015, Analysis of the Influencing Factors and Maintenance Measures on Mental Health of Medical Workers. China Modern Medicine, 22(33): 140–143.
[2] Hill G, 2015, Misuse of the Medical Circumcision Literature: Psychological Factors. BMJ, 4: 318– 323.
[3] Cooke CE, Stephens JM, 2017, Clinical, Economic, and Humanistic Burden of Needlestick Injuries in Healthcare Workers. Medical Devices: Evidence and Research, 10: 225–235.
[4] Laskaris G, 1988, Risk of HIV Infection Among Health Care Workers, Dental Team and Household Contacts. Hell Stomatol Chron, 32(1): 23.
[5] Agrawal P, Garg AK, 2012, Universal Precautions : Prevention of Transmission of HIV, Hepatitis-B & Hepatitis-C in Dental Care Setup. Heal Talk, 5(2): 36–37.
[6] Kolahi J, Shayesteh YS, Shirani G, 2013, Transmission of Hazardous Diseases Via Nanobacterial Contamination of Medical and Dental Equipment. Dental Hypotheses, 4(3): 80–82.
[7] Tang J, 2018, Status and Influencing Factors of Mental Health and Quality of Life of Dentists, thesis, China Medical University.
[8] Wang Y, 2019, Study on the Relationship Between Mental Health, Coping Style and Stress Behavior of Clinicians, thesis, China Medical University.
[9] Zhou D, Bian L, 2004, Common Factors and Coping Styles Affecting Mental Health of Nurses in Stomatology Department. Chinese Journal of Modern Practical Medicine, 2004(21): 77–78
[10] Hekmatian E, Khalafi H, 2012, Evaluation of Awareness of Dental Practitioners in Bushehr of Infection Control Techniques During Dental Radiographic Procedures. Journal of Isfahan Dental School, 7(5): 523–533.
[11] Ebrahimpour A., Pakravan AH, Nezhad MY, et al., 2016, Knowledge and Performance of Dental Students with Regard to Infection Control Guidelines in Dental School of Mazandaran University of Medical Sciences in 2015. International Journal of Medical Research & Health Sciences, 5(8): 298– 304.
[12] Huang S, Xie Y, Zeng J, 2016, The Impact of Systematic Education of Nosocomial Infection on the Mental Health of Medical Staff. Parasitoses and Infectious Diseases, 14(4): 267–269.
[13] Rice V, Glass N, Ogle R, et al., 2014, Exploring Physical Health Perceptions, Fatigue and Stress Among Health Care Professionals. Journal of Multidisciplinary Healthcare, 7: 155–161.
[14] Lin M, Zeng C, Jie C, 2014, Study on Mental Health and Job Satisfaction of Medical Staff. Chinese Journal of Health Education, 30(2): 4.
[15] Deng L, 2007, Investigation and Analysis of Related Factors of Cross-Infection Prevention Behavior of Medical Staff in Five Stomatological Hospitals, thesis, Sichuan University.
[16] Abolfotouh MA, AlQarni AA, Al-Ghamdi SM, et al., 2017, An Assessment of the Level of Concern Among Hospital-Based Health-Care Workers Regarding MERS Outbreaks in Saudi Arabia. BMC Infectious Diseases, 17: 4.
[17] Shi R, 2013, Study on Work Stress Coping Style and Mental Health Status of Nurses in a Military
Hospital, thesis, The Fourth Military Medical University.
[18] Schwartzmiller AM, 2005, Job Satisfaction of Injured and Non-Injured Hospital Employees as Measured by the Minnesota Satisfaction Questionnaire (MSQ), thesis, University of Pittsburgh.
[19] Zacher H, Griffin B, 2015, Older Workers' Age as a Moderator of the Relationship Between Career Adaptability and Job Satisfaction. Work, Aging and Retirement, 1(2): 227–236.
[20] Griffin B, Bayl-Smith P, Hesketh B, 2016, The Longitudinal Effects of Perceived Age Discrimination on the Job Satisfaction and Work Withdrawal of Older Employees. Work Aging and Retirement, 2(4): 415–427.
[21] Liu M, 2011, Study on Job Burnout Status, Influencing Factors and Intervention Strategies of Stomatologists, thesis, Zhejiang University.
[22] Li Y, Li Y, Yang B, 2005, A Study on the Relationship Between Mental Health and Social Support of Doctors. Journal of Henan Medical College, 17(4): 232–234.
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Profile information current as at 16/10/2024 08:44 am
All details in this unit profile for BUSN20021 have been officially approved by CQUniversity and represent a learning partnership between the University and you (our student).The information will not be changed unless absolutely necessary and any change will be clearly indicated by an approved correction included in the profile.
General Information
Overview
Researching business problems is an important part of professional practice and being a successful business manager and leader. Business Research Project is an independent 12cp research unit that draws upon your area of specialisation and knowledge of research methods. You will conduct independent research in an appropriate area of relevance to your specific Masters Course. This unit requires independence and autonomy in review and analysis of literature and secondary data sources. You will identify the topic, review existing literature, develop the research questions, define the methodology, collect and analyse the data, and write up the final business project, culminating in conclusions that highlight your answer to your research questions and recommendations for practice and future research.
Details
Career Level: Postgraduate
Unit Level: Level 9
Credit Points: 12
Student Contribution Band: 10
Fraction of Full-Time Student Load: 0.25
Pre-requisites or Co-requisites
BUSN20016 Research in Business and 72 credit points of relevant unit work specific to their cognate discipline. As this unit involves integrating the majority of the content of a course in a research context, it is recommended students will undertake this research task having completed the majority of their course.
Important note: Students enrolled in a subsequent unit who failed their pre-requisite unit, should drop the subsequent unit before the census date or within 10 working days of Fail grade notification. Students who do not drop the unit in this timeframe cannot later drop the unit without academic and financial liability. See details in the Assessment Policy and Procedure (Higher Education Coursework).
Offerings For Term 1 - 2023
Online
Attendance Requirements
All on-campus students are expected to attend scheduled classes – in some units, these classes are identified as a mandatory (pass/fail) component and attendance is compulsory. International students, on a student visa, must maintain a full time study load and meet both attendance and academic progress requirements in each study period (satisfactory attendance for International students is defined as maintaining at least an 80% attendance record).
Website
This unit has a website, within the Moodle system, which is available two weeks before the start of term. It is important that you visit your Moodle site throughout the term. Please visit Moodle for more information.
Class and Assessment Overview
Recommended Student Time Commitment
Each 12-credit Postgraduate unit at CQUniversity requires an overall time commitment of an average of 25 hours of study per week, making a total of 300 hours for the unit.
Class Timetable
Regional Campuses
Bundaberg, Cairns, Emerald, Gladstone, Mackay, Rockhampton, Townsville
Metropolitan Campuses
Adelaide, Brisbane, Melbourne, Perth, Sydney
Assessment Overview
1. Research Proposal
Weighting: 40%
2. Research Assignment
Weighting: 60%
Assessment Grading
This is a graded unit: your overall grade will be calculated from the marks or grades for each assessment task, based on the relative weightings shown in the table above. You must obtain an overall mark for the unit of at least 50%, or an overall grade of 'pass' in order to pass the unit. If any 'pass/fail' tasks are shown in the table above they must also be completed successfully ('pass' grade). You must also meet any minimum mark requirements specified for a particular assessment task, as detailed in the 'assessment task' section (note that in some instances, the minimum mark for a task may be greater than 50%). Consult the University's Grades and Results Policy for more details of interim results and final grades.
CQUniversity Policies
All University policies are available on the CQUniversity Policy site.
You may wish to view these policies:
Grades and Results Policy
Assessment Policy and Procedure (Higher Education Coursework)
Review of Grade Procedure
Student Academic Integrity Policy and Procedure
Monitoring Academic Progress (MAP) Policy and Procedure – Domestic Students
Monitoring Academic Progress (MAP) Policy and Procedure – International Students
Student Refund and Credit Balance Policy and Procedure
Student Feedback – Compliments and Complaints Policy and Procedure
Information and Communications Technology Acceptable Use Policy and Procedure
This list is not an exhaustive list of all University policies. The full list of University policies are available on the CQUniversity Policy site.
Previous Student Feedback
Feedback, Recommendations and Responses
Every unit is reviewed for enhancement each year. At the most recent review, the following staff and student feedback items were identified and recommendations were made.
Feedback from Informal student feedback.
Feedback
Personalised support to individual students and their chosen research projects is important and needs to be continued.
Recommendation
Continue the approach of providing tailored, personalised support to individual students in consultation sessions.
Feedback from Informal student feedback.
Feedback
The viva voce prior to submission of both assessment items provided a useful opportunity for students to get feedback on their work before submission, and gave an opportunity for them to discuss their project in depth.
Recommendation
Retain a viva voce oral assessment component for both assessment items.
Unit Learning Outcomes
On successful completion of this unit, you will be able to:
Apply methodological knowledge to identify a research problem in your cognate area and design a feasible 1. qualitative and/or quantitative study, including the development of answerable research questions, collection of data, analysis and interpretation of findings
Identify and critically review contemporary literature relevant to your research questions 2.
Apply research skills to successfully complete the designed study in a systematic and ethical manner 3.
Synthesise literature and findings to develop critical discussion and appropriate conclusions 4.
Apply high-level written communication skills and an awareness of professional writing styles to the production of 5. research proposal and research report.
Alignment of Learning Outcomes, Assessment and Graduate Attributes
— N/A Level ⚫ Introductory Level
⚫ Intermediate Level
⚫ Graduate Level
⚬ Professional Level
⚬ Advanced Level
Alignment of Assessment Tasks to Learning Outcomes
Assessment Tasks
Learning Outcomes
1
2
3
4
5
1 - Research Proposal - 40%
⚫ ⚫
⚫
2 - Research Assignment - 60%
⚫ ⚫ ⚫ ⚫
Alignment of Graduate Attributes to Learning Outcomes
Graduate Attributes
Learning Outcomes
1 2 3 4 5
1 - Knowledge
⚬ ⚬
2 - Communication
⚬ ⚬
⚬ ⚬
3 - Cognitive, technical and creative skills
⚬
⚬ ⚬
4 - Research
⚬ ⚬ ⚬ ⚬
5 - Self-management
⚬ ⚬ ⚬ ⚬ ⚬
6 - Ethical and Professional Responsibility
⚬
⚬ ⚬ ⚬
7 - Leadership
8 - Aboriginal and Torres Strait Islander Cultures
Alignment of Assessment Tasks to Graduate Attributes
Assessment Tasks
Graduate Attributes
1 2 3 4 5 6 7 8
1 - Research Proposal - 40%
⚬ ⚬ ⚬ ⚬ ⚬ ⚬
2 - Research Assignment - 60%
⚬ ⚬ ⚬ ⚬ ⚬ ⚬
Textbooks and Resources
Textbooks
There are no required textbooks.
IT Resources
You will need access to the following IT resources:
CQUniversity Student Email
Internet
Unit Website (Moodle)
Referencing Style
All submissions for this unit must use the referencing style: American Psychological Association 7th Edition (APA 7th edition)
For further information, see the Assessment Tasks.
Teaching Contacts
Stephanie Macht Unit Coordinator firstname.lastname@example.org
Schedule
Module 1 - Overview - 06 Mar 2023
Module/Topic
IMPORTANT: The Modules in this unit are not strictly week-by-week topics. This unit requires independent study and autonomy in completing a small research project - it is expected that you use self-directed learning and identify the areas that you need to focus on in any given week. This may require you to read ahead to later Modules, or go back and revisit earlier Modules.
Chapter
There is no prescribed reading in this unit - some recommended reading for each Module is available in Moodle, but it is important you start to identify your own reading materials for your own chosen research project.
Module 1 focuses on providing the foundational overview of research projects, as well as the requirements of and assessments in this unit.
Module 2 – Data and Literature - 13 Mar 2023
Module/Topic
Chapter
Module 2 focuses on more detailed understanding of the research project options for this unit by exploring the concepts of data and literature.
There is no prescribed reading in this unit - some recommended reading for each Module is available in Moodle, but it is important you start to identify your own reading materials for your own chosen research project.
Module 3 – Refining and Proposing Research Projects - 20 Mar 2023
Module/Topic
Chapter
Events and Submissions/Topic
Work through the materials in Moodle that relate to Module 1.
In Week 1, you should hit the ground running and start to identify a suitable research project.
Events and Submissions/Topic
Work through the materials in Moodle that relate to Module 2.
In Week 2, you should continue to scope and focus a suitable research project.
Events and Submissions/Topic
Module 3 focuses on ways to refine research projects to make them manageable and feasible; the Module also focuses on the research proposal (which is a key document in research projects), and the 'Viva Voce' (which is a commonly used oral examination in research projects).
There is no prescribed reading in this unit - some recommended reading for each Module is available in Moodle, but it is important you continue to identify your own reading materials for your own chosen research project.
Module 4 – The Narrative Literature Review - 27 Mar 2023
Module/Topic
Chapter
Module 4 focuses on the narrative literature review, including: searching for literature, structuring a literature review chapter, and developing a critical literature review that is strongly grounded in the extant literature.
There is no prescribed reading in this unit - some recommended reading for each Module is available in Moodle, but it is important you continue to identify your own reading materials for your own chosen research project.
Module 5 – Methodology - 03 Apr 2023
Module/Topic
Chapter
Module 5 provides an overview of the methodology components of research proposals.
Vacation Week - 10 Apr 2023
Module/Topic
There is no prescribed reading in this unit - some recommended reading for each Module is available in Moodle, but it is important you continue to identify your own reading materials for your own chosen research project.
Chapter
Work through the materials in Moodle that relate to Module 3.
In Week 3, you should be able to finish choosing a suitable research project and start working on it.
Events and Submissions/Topic
Work through the materials in Moodle that relate to Module 4.
In Week 4, you should start to write a preliminary literature review (for your resarch proposal).
Events and Submissions/Topic
Work through the materials in Moodle that relate to Module 5.
In Week 5, you should continue writing your research proposal and get it ready for submission. During Week 5, your Assessment 1 Viva Voce will take place during the timetabled class or during a separately arranged consultation time.
Project Proposal Due: Week 5 Friday
(7 Apr 2023) 11:59 pm AEST
Events and Submissions/Topic
Use this week to progress your project.
Module 6 – Data Collection, Data Preparation, and Data Analysis - 17 Apr 2023
Module/Topic
Chapter
Events and Submissions/Topic
Work through the materials in Moodle that relate to Module 6.
In Weeks 6 to 9, you should collect the data, analyse the data, and compare your findings to the literature. You should continue reviewing literature to ensure complete review in your final report, and you should write your methodology, findings and discussion chapters.
Events and Submissions/Topic
Module 6 focuses on the processes of collecting data, preparing data for analysis, and analysing data.
There is no prescribed reading in this unit - some recommended reading for each Module is available in Moodle, but it is important you continue to identify your own reading materials for your own chosen research project.
Module 7 – Results/Findings and Discussion - 24 Apr 2023
Module/Topic
Chapter
Module 7 focuses on the writing up of findings and discussion chapters of final reports.
There is no prescribed reading in this unit - some recommended reading for each Module is available in Moodle, but it is important you continue to identify your own reading materials for your own chosen research project.
Module 8 - Final Reports and Research Methodology - 01 May 2023
Module/Topic
Chapter
Module 8 focuses on the structure and content of final research reports, with a particular focus on the contents of the methodology chapter.
There is no prescribed reading in this unit - some recommended reading for each Module is available in Moodle, but it is important you continue to identify your own reading materials for your own chosen research project.
Module 9 - Conclusion and Introduction - 08 May 2023
Module/Topic
Chapter
Module 9 focuses on the introduction and conclusion chapters of a research report.
There is no prescribed reading in this unit - some recommended reading for each Module is available in Moodle, but it is important you continue to identify your own reading materials for your own chosen research project.
Module 10 - Finalising a Research Project (and Report) - 15 May 2023
Module/Topic
Chapter
Module 10 focuses on the final stages of completing a research project and research report.
There is no prescribed reading in this unit - some recommended reading for each Module is available in Moodle, but it is important you continue to identify your own reading materials for your own chosen research project.
Module 11 – Publishing from your Project - 22 May 2023
Module/Topic
Chapter
Work through the materials in Moodle that relate to Module 7.
In Weeks 6 to 9, you should collect the data, analyse the data, and compare your findings to the literature. You should continue reviewing literature to ensure complete review in your final report, and you should write your methodology, findings and discussion chapters.
Events and Submissions/Topic
Work through the materials in Moodle that relate to Module 8.
In Weeks 6 to 9, you should collect the data, analyse the data, and compare your findings to the literature. You should continue reviewing literature to ensure complete review in your final report, and you should write your methodology, findings and discussion chapters.
Events and Submissions/Topic
Work through the materials in Moodle that relate to Module 9.
In Weeks 6 to 9, you should collect the data, analyse the data, and compare your findings to the literature. You should continue reviewing literature to ensure complete review in your final report, and you should write your methodology, findings and discussion chapters.
Events and Submissions/Topic
Work through the materials in Moodle that relate to Module 10.
In Week 10, you should polish your methodology, findings and discussion chapters, and commence work on your conclusion and introduction.
Events and Submissions/Topic
Module 11 focuses on the final Viva Voce at the end of a research project. Module 11 also provides an overview of what would happen next if you chose to publish your project findings. Good projects, which address a real gap in existing knowledge, may be publishable. If this is something you are interested in, please discuss with your tutor as early as possible.
There is no prescribed reading in this unit - some recommended reading for each Module is available in Moodle, but it is important you continue to identify your own reading materials for your own chosen research project.
In Week 11, you should polish all your chapters and start to get ready to finish your report.
Module 12 – Research Higher Degrees and Research as a Career Choice - 29 May 2023
Module/Topic
Chapter
Events and Submissions/Topic
Module 12 provides an insight into research as a career, alongside the options of making this happen (usually via a Research Higher Degree, such as a Masters of Research or a PhD).
Assessment Tasks
1 Project Proposal
Assessment Type
Research Proposal
Task Description
Unit assessment overview:
During this unit, you will work independently (although within a structure) to plan, carry out and report on an individually chosen research project. You will demonstrate a synthesis of the knowledge, learning, business research methodologies, and skills that you have acquired and practiced throughout your ENTIRE Masters course. In particular, this unit builds upon your previous work in the unit Research in Business (BUSN20016). However, this time you will actually do a research project. You have the freedom to choose a project related to your personal interest, as long as this A) relates to the specific Master course, which you are studying now, and B) does not require the collection of primary data. There are two cumulative assessments: a research proposal and a final research report; both components include a written assessment and a 'Viva Voce' (an oral presentation and discussion of your project). The key to success in this unit is twofold: (1) to choose a suitable and feasible project (that does not require primary data) early in the term, and (2) to remain on track with this suitable and feasible project throughout the remainder of the term. When choosing a project, you have two options: You can either do a project with real publicly available secondary data OR you can choose to do a systematic literature review, SLR for short (please note: a systematic literature review is a specific approach to reviewing the literature, which treats literature as secondary data, and it requires a very methodical and systematic approach – details are in Moodle).
Assessment 1: Project Proposal (40%)
The proposal is an individual assessment that contains two components: 1) a written assessment in professional report format and submitted through Turnitin, and 2) an oral assessment called Viva Voce. The written report contains the following:
Preliminaries: Title page (with a clear project title), executive summary, table of contents.
Introduction: This chapter will contain background/context of the research; problem statement; aim research questions.
Literature review: A preliminary narrative literature review that demonstrates your ability to critically review literature and theory relevant to your project.
Research methodology: If you choose option 1 (real publicly available secondary data), this section needs to present a clear outline of the data source(s) you will use, as well as a detailed description of how you will collect and analyse the data; you should attempt to also explain why your chosen approaches to data collection and analysis will be suitable for your project. If you choose option 2 (systematic literature review), this section needs to present a clear outline of the search terms and search parameters, as well as the analysis approach(es) you will use to complete the SLR; you should attempt to also explain why your chosen approaches to data collection and analysis will be suitable for your project. Justification of approaches taken and use of correct terminology are required for both options.
Gantt chart: Prepare a Gantt chart that demonstrates a realistic understanding of the various research activities, and their time duration, you need to carry out in order to complete your project.
Conclusion: A brief conclusion that summarises the proposal and provides an indication of the project's likely contributions.
Reference list. All sources, which you have used in the text of your project proposal, need to be referenced correctly in the text AND within a reference list at the end of your proposal. You are required to use a MINIMUM of 20 suitable peer-reviewed scholarly journal articles.
Note: The required length for this report is 2,000 to 2,500 words, excluding preliminaries, reference list and appendices. Appendices are optional and should be used for supplementary material only. You must use a common font (e.g. Arial or
There is no prescribed reading in this unit - some recommended reading for each Module is available in Moodle, but it is important you continue to identify your own reading materials for your own chosen research project.
In Week 12, you should finish your report. During Week 12, your Assessment 2 Viva Voce will take place during the timetabled class or during a separately arranged consultation time.
Final Project Report Due: Week 12 Friday (2 June 2023) 11:59 pm AEST
Times New Roman) with font size 11 or 12, as well as appropriate margins and spacing.
The oral 'Viva Voce' requires you to present your proposed research and answer questions about it. The Viva Voce will take place during the timetabled class or during a separately arranged consultation time in Week 5. You are required to summarise the introduction, literature review, methodology, Gantt chart, and conclusion of your proposed research project and present this verbally with the help of PowerPoint slides. The presentation will be approximately 7-8 minutes long, and it will be followed by approximately 7-8 minutes of questions and answers, during which you need to demonstrate your understanding of your own project and the research approaches and methodologies proposed. The Viva Voce is a crucial component of Assessment 1 and must be completed to pass Assessment 1.
Assessment Due Date
Week 5 Friday (7 Apr 2023) 11:59 pm AEST
The presentation takes place live during the class or arranged consultation time of Week 5; PowerPoint slides and Word document report are to be submitted via Moodle.
Return Date to Students
Viva Voce feedback will be delivered live during the class/consultation time. Assessment 1 marks and report feedback will be available in Moodle approximately within 10 business days.
Weighting
40%
Assessment Criteria
As a Masters-level student, you are required to engage in research as per the Australia Quality Framework (AQF) guidelines. Two specific requirements need to be considered. Students need to demonstrate "a body of knowledge that includes the understanding of recent developments in a discipline and/or area of professional practice", and demonstrate "knowledge of research principles and methods applicable to a field of work and/or learning". Each unit in your Masters program has a number of required weekly readings in terms of academic texts, journals and business publications that represent the appropriate body of knowledge and recent developments referred to by the AQF. In order to demonstrate the ability to engage in appropriate research, students should read and utilise these texts and journals and publications, and as a Masters student, demonstrate an ability to research beyond this minimum standard through additional texts, journals and studies that demonstrate an ability to engage in independent research. This is an advanced level unit, and accrediting bodies are also looking for evidence of independent research, so the ability to conduct this project without continually relying on your tutors and lecturers is an important part of the learning process for this unit.
You should ensure that you understand the specific research that is required for each assessment piece and recognise that if you merely meet this minimum requirement, you will receive the minimum grade for demonstrated research. Your attention is drawn to the University's stated position on plagiarism. THE WORK OF OTHERS, WHICH IS INCLUDED IN THE ASSIGNMENT MUST BE ATTRIBUTED TO ITS SOURCE. A full list of references must be submitted as part of the assessment. Your assignment will be marked on the following criteria; detailed marking rubrics are available in Moodle:
Background, problem statement and research question(s) (15%)
Preliminary critical narrative literature review (15%)
Proposed research methodology (30%)
Gantt chart (10%)
Quality and appropriateness of references, and accuracy of referencing (10%)
Professional written communication (10%)
Ability to present and discuss own proposed research project during Viva Voce (10%)
Late submission and academic misconduct penalties will be applied in accordance with the university policies.
Referencing Style
American Psychological Association 7th Edition (APA 7th edition)
Submission
Online
Submission Instructions
Presentation happens live during the class/consultation time of Week 5; PowerPoint slides and Word document report are to be submitted via Moodle.
Learning Outcomes Assessed
Apply methodological knowledge to identify a research problem in your cognate area and design a feasible qualitative and/or quantitative study, including the development of answerable research questions, collection of
data, analysis and interpretation of findings
Identify and critically review contemporary literature relevant to your research questions
Apply high-level written communication skills and an awareness of professional writing styles to the production of research proposal and research report.
Graduate Attributes
Knowledge
Communication
Cognitive, technical and creative skills
Research
Self-management
Ethical and Professional Responsibility
2 Final Project Report
Assessment Type
Research Assignment
Task Description
Assessment 2:
The final project report is an individual assessment that contains two components: 1) a written assessment in professional report format and submitted through Turnitin, and 2) a Viva Voce. The written report requires in-text referencing and a full reference list in APA style, with evidence that you have critically read and integrated a minimum of 30 suitable scholarly references. The purpose of this assessment is to present the final report of the Research Project you proposed in Assignment 1. This report should build upon the feedback you received on your Assessment 1. In order to successfully complete Assessment 2, you are required to carry out the investigation you have proposed in Assessment 1 and produce a professional research report that shows that you have followed through from finding a research question to answering that question and developing recommendations that arise from your findings. The report will follow the typical structure of a research report and will need to include the following:
Preliminaries: Title page (with a clear project title), executive summary, table of contents.
Introduction, including: background, problem statement, aim and research question(s), overview of the remainder of the report.
Critical narrative literature review.
Research methodology: If you chose option 1 (real publicly available secondary data), this includes: transparent presentation of data source(s), and how you collected and analysed the data. If you chose option 2 (SLR), this includes: transparent presentation of search parameters and search terms, as well as transparent presentation of how you collected and analysed the data. Justification of approaches taken and use of correct terminology are required for both options.
Findings from your analysis.
Discussion of findings in light of your narrative literature review.
Conclusion, including: answering your research question(s), outlining the contributions of the project, recommendations for practice, recommendations for further research, and limitations.
Reference list: All sources, which you have used in the text of your project report, need to be referenced correctly in the text AND within a reference list at the end of your report. You are required to use a MINIMUM of 30 suitable peer-reviewed scholarly journal articles.
Note: The required length for this report is 6,000 to 7,000 words, excluding preliminaries, reference list and appendices. Appendices are optional and should be used for supplementary material only. You must use common font (e.g. Arial or Times New Roman) with font size 11 or 12, as well as appropriate margins and spacing.
In addition to the written report, Assessment 2 requires you to again participate at a Viva Voce, which will take place during the class or a separately arranged consultation time of Week 12. You are required to summarise your final report contents and present these with PowerPoint slides. The presentation will be 10 - 12 minutes long, and it will be followed by approximately 10 minutes of questions and answers, during which you need to demonstrate your understanding of your own project, the research approaches and methodologies completed, and the results achieved. The Viva Voce is a crucial component of Assessment 2 and must be completed to pass Assessment 2.
Assessment Due Date
Week 12 Friday (2 June 2023) 11:59 pm AEST
The presentation takes place live during the class/consultation time of Week 12; PowerPoint slides and Word document report are to be submitted via Moodle.
Return Date to Students
Viva Voce feedback will be delivered live during the class/consultation time. Assessment 2 marks and report feedback will be available in Moodle on certification day.
Weighting
60%
Assessment Criteria
As a Masters-level student, you are required to engage in research as per the Australia Quality Framework (AQF) guidelines. Two specific requirements need to be considered. Students need to demonstrate "a body of knowledge that includes the understanding of recent developments in a discipline and/or area of professional practice", and demonstrate "knowledge of research principles and methods applicable to a field of work and/or learning". Each unit in your Masters program has a number of required weekly readings in terms of academic texts, journals and business publications that represent the appropriate body of knowledge and recent developments referred to by the AQF. In order to demonstrate the ability to engage in appropriate research, students should read and utilise these texts and journals and publications, and as a Masters student, demonstrate an ability to research beyond this minimum standard through additional texts, journals and studies that demonstrate an ability to engage in independent research. This is an advanced level unit, and accrediting bodies are also looking for evidence of independent research, so the ability to conduct this project without continually relying on your tutors and lecturers is an important part of the learning process for this unit.
You should ensure that you understand the specific research that is required for each assessment piece and recognise that if you merely meet this minimum requirement, you will receive the minimum grade for demonstrated research. Your attention is drawn to the University's stated position on plagiarism. THE WORK OF OTHERS, WHICH IS INCLUDED IN THE ASSIGNMENT MUST BE ATTRIBUTED TO ITS SOURCE. A full list of references must be submitted as part of the assessment. Your assignment will be marked on the following criteria; detailed marking rubrics are available in Moodle:
Critical narrative literature review (10%)
Research methodology (15%)
Findings from your analysis (20%)
Discussion of findings in light of narrative literature review (20%)
Introduction and conclusion (5%)
Professional written communication (10%)
Quality and appropriateness of references, and accuracy of referencing (10%)
Ability to present and discuss own research project during Viva Voce (10%)
Late submission and academic misconduct penalties will be applied in accordance with the university policies.
Referencing Style
American Psychological Association 7th Edition (APA 7th edition)
Submission
Online
Submission Instructions
Presentation happens live during the class/consultation time of Week 12; PowerPoint slides and Word document report are to be submitted via Moodle.
Learning Outcomes Assessed
Identify and critically review contemporary literature relevant to your research questions
Apply research skills to successfully complete the designed study in a systematic and ethical manner
Synthesise literature and findings to develop critical discussion and appropriate conclusions
Apply high-level written communication skills and an awareness of professional writing styles to the production of research proposal and research report.
Graduate Attributes
Knowledge
Communication
Cognitive, technical and creative skills
Research
Self-management
Ethical and Professional Responsibility
Academic Integrity Statement
As a CQUniversity student you are expected to act honestly in all aspects of your academic work.
Any assessable work undertaken or submitted for review or assessment must be your own work. Assessable work is any type of work you do to meet the assessment requirements in the unit, including draft work submitted for review and feedback and final work to be assessed.
When you use the ideas, words or data of others in your assessment, you must thoroughly and clearly acknowledge the source of this information by using the correct referencing style for your unit. Using others' work without proper acknowledgement may be considered a form of intellectual dishonesty.
Participating honestly, respectfully, responsibly, and fairly in your university study ensures the CQUniversity qualification you earn will be valued as a true indication of your individual academic achievement and will continue to receive the respect and recognition it deserves.
As a student, you are responsible for reading and following CQUniversity's policies, including the Student Academic Integrity Policy and Procedure. This policy sets out CQUniversity's expectations of you to act with integrity, examples of academic integrity breaches to avoid, the processes used to address alleged breaches of academic integrity, and potential penalties.
What is a breach of academic integrity?
A breach of academic integrity includes but is not limited to plagiarism, self-plagiarism, collusion, cheating, contract cheating, and academic misconduct. The Student Academic Integrity Policy and Procedure defines what these terms mean and gives examples.
Why is academic integrity important?
A breach of academic integrity may result in one or more penalties, including suspension or even expulsion from the University. It can also have negative implications for student visas and future enrolment at CQUniversity or elsewhere. Students who engage in contract cheating also risk being blackmailed by contract cheating services.
Where can I get assistance?
For academic advice and guidance, the Academic Learning Centre (ALC) can support you in becoming confident in completing assessments with integrity and of high standard.
What can you do to act with integrity?
|
NEST Members
NEST REGISTER OF INTERESTS 2023-2024
NAME
Paul C
Ann G
Sue Ch
Amy Webber
| ROLE | DATE OF APPT | APPOINTED BY |
|---|---|---|
| Non-Trustee Member | 01.01.16 | Founding Member |
| Non-Trustee Member | 03.12.15 | Members |
| Trustee Member | 01.01.23 | Members |
| Non-Trustee Member | 03.12.15 | Members |
| Non-Trustee Member | 03.12.15 | Members |
NEST Trustees
NAME
Paula
Ann G
Naomi
Dave St
Dee To
| ROLE | DATE OF APPT/ TERM OF OFFICE | APPOINTED BY |
|---|---|---|
| Executive Trustee / CEO NEST Chair EATS Sub-Committee | 01.12.13 (ex officio) | Ex officio |
| Non-Executive Trustee Chair of Board | 01.01.23 - 31.12.26 | Members |
| Non-Executive Trustee | 29.10.13 - 21.02.24 | Founding Trustee |
| Non-Executive Trustee Chair - HR, Pay & Performance Committee | 13.11.18 - 12.11.22 13.11.22 - 12.11.26 | Members |
| Non-Executive Trustee | 12.12.22 - 11.12.26 | Members |
| Non-Executive Trustee | 01.01.16 - 21.02.24 | Founding Trustee |
| Non-Executive Trustee Chair of Finance, Audit & Risk Committee Vice-Chair of Board | 11.12.18 - 10.12.22 11.12.22 - 10.12.26 | Members |
TRUST SCHOOLS
Alexandra Infant School (joined Trust on 01.05.18)
Maria
Jenna
Alison
| ROLE | DATE OF APPT/ TERM OF OFFICE | APPOINTED BY |
|---|---|---|
| Chair LCM - Community | 03.06.19 - 02.06.23 03.06.23 - 02.06.27 | Local Committee |
| LCM – Staff | 05.10.16 - 04.10.20 05.10.20 - 04.10.24 | Elected by staff |
| LCM - Community | 10.12.18 - 09.12.22 10.12.22 - 09.12.26 | Local Committee |
| LCM – Community | 26.11.21 - 25.11.25 | Local Committee |
| LCM – Headteacher | Ex-officio | Ex-officio |
| LCM – Parent | 19.05.21 - 18.05.25 | Elected by parents |
| LCM – Community | 30.09.22 - 29.09.26 | Local Committee |
| LCM – Parent | 02.12.22 - 01.12.26 | Elected by parents |
Alexandra Junior School (joined Trust on 01.11.17)
Alfred
Jessic
Emily
Mishia
Rache
| ROLE | DATE OF APPT/ TERM OF OFFICE | APPOINTED BY |
|---|---|---|
| LCM – Community Achievement | 12.03.20 - 11.03.24 End of office 11.03.24 | Local Committee |
| LCM – Parent | 21.05.21 - 20.05.25 | Elected by parents |
| LCM – Parent | 30.09.21 - 29.09.25 | Elected by parents |
| Vice Chair LCM – Community LCM – Community | 21.09.17 - 20.09.21 21.09.21 - 20.09.25 | Local Committee |
| LCM – Community | 30.11.23 - 29.09.27 | Local Committee |
| LCM – Community | 24.11.22 - 23.11.26 | Local Committee |
| LCM – Headteacher | Ex officio | Ex officio |
| LCM – Community | 12.03.20 - 11.03.24 Resigned 28.09.23 | Local Committee |
| Chair LCM – Community | 01.09.22 - 31.08.26 | Local Committee |
| LCM – Staff | 17.09.21 - 16.09.25 | Elected by staff |
| LCM - Community | 24.01.24 - 23.01.28 | Local Committee |
Balgowan Primary School (joined Trust on 01.09.19)
NAME
Simon
Kirsty
Matthe
Sue Bla
Domin
Sarah-J
Alan S
Patrici
Maria
| ROLE | DATE OF APPT/ TERM OF OFFICE | APPOINTED BY |
|---|---|---|
| LCM – Community | 02.02.22 - 01.02.26 Resigned 25.09.23 | Local Committee |
| LCM – Parent Vice Chair – LCM Community | 15.06.16 - 14.06.20 15.06.20 - 14.06.24 Resigned 05.09.23 | Elected by parents Local Committee |
| LCM – Staff | 02.11.20 - 01.11.24 | Elected by staff |
| LCM – Parent | 01.01.21 - 31.12.24 | Elected by parents |
| LCM – Community | 06.02.23 - 05.02.23 06.02.23 - 05.02.27 | Local Committee |
| LCM – Community | 03.03.22 - 02.03.26 | Local Committee |
| LCM – Parent | 19.01.22 - 18.01.26 | Elected by parents |
| LCM – Staff | 02.11.20 - 01.11.24 | Elected by staff |
| Chair – LCM Community | 02.10.18 - 01.10.22 01.10.22 - 31.09.26 | Local Committee |
| LCM – Headteacher | Ex officio | Ex officio |
Bickley Primary School (joined Trust on 01.05.19)
Yasmi
Amy T
Mace
| ROLE | DATE OF APPT/ TERM OF OFFICE | APPOINTED BY |
|---|---|---|
| LCM – Parent | 12.03.21 - 11.03.25 Resigned 31.01.24 | Elected by parents |
| LCM – Headteacher | Ex officio | Ex officio |
| LCM – Parent | 10.05.22 - 09.05.26 Resigned 04.01.24 | Elected by parents |
| LCM – Staff | 30.09.18 - 29.09.22 30.09.22 - 29.09.26 | Elected by staff |
| LCM – Community | 29.11.18 - 28.11.22 29.11.22 - 28.11.26 | Local Committee |
| LCM – Community | 26.09.22 - 25.09.26 | Local Committee |
| LCM – Community | 04.03.20 - 03.03.24 04.03.24 - 03.03.28 | Local Committee |
| LCM – Community | 16.12.22 - 15.12.26 | Local Committee |
| Chair LCM – Community | 20.09.22 - 19.09.26 | Local Committee |
| LCM – Community | 16.11.21 - 15.11.25 Resigned 03.01.24 | Local Committee |
| LCM – Parent | 11.03.24 - 10.03.28 | Elected by parents |
Childeric Primary School (joined Trust 01.09.22)
Ann B
Cleme
Tyson
| ROLE | DATE OF APPT/ TERM OF OFFICE | APPOINTED BY |
|---|---|---|
| LCM – Headteacher | Ex officio | Ex officio |
| LCM – Headteacher | Ex officio | Ex officio |
| LCM – Staff | 13.01.20 - 12.01.24 End of office 12.01.24 | Elected by staff |
| LCM – Community | 23.11.21 - 22.11.25 | Local Committee |
| LCM – Community | 01.10.19 - 30.09.23 01.10.23 - 30.09.27 | Local Committee |
| LCM – Staff | 07.02.24 - 06.02.28 | Elected by staff |
| LCM – Community | 27.09.22 - 26.09.25 | Local Committee |
| Vice Chair LCM – Community | 05.10.21 - 04.10.25 | Local Committee |
| LCM – Parent | 22.07.22 - 21.07.25 | Elected by parents |
| Chair LCM – Community | 04.03.19 - 03.03.23 04.03.23 - 02.03.27 | Local Committee |
| LCM – Parent | 15.11.22 - 14.11.26 | Elected by parents |
| LCM – Staff | 13.01.20 - 12.01.24 End of office 12.01.24 | Elected by staff |
Dog Kennel Hill Primary School and Rotherhithe Primary Schools (joined Trust on 01.10.23)
NAME
Jonny
Galiem
Kofi D
Cloete
Martin
Kazia
Julia L
Agatha
Jamie S
Tom Ro
Liam W
| ROLE | DATE OF APPT/ TERM OF OFFICE | APPOINTED BY |
|---|---|---|
| LCM – Parent | 12.03.20 - 11.03.24 End of office 11.03.24 | Elected by parents |
| LCM – Executive Headteacher | Ex officio | Ex Officio |
| LCM – Staff | 19.02.22 - 17.02.26 | Elected by staff |
| LCM – Community | 14.11.22 - 13.11.26 | Local Committee |
| LCM – Parent | 12.03.24 - 11.03.24 | Elected by parents |
| LCM – Community | 02.01.22 - 01.01.26 | Local Committee |
| LCM – Community Vice Chair | 08.12.20 - 07.12.24 Resigned 02.02.24 | Local Committee |
| LCM – Parent | 10.10.22 - 09.10.26 | Elected by parents |
| LCM – Staff | 10.11.22 - 09.11.26 | Elected by staff |
| LCM – Community | 22.06.21 - 21.06.25 | Local Committee |
| LCM – Community Chair | First appointed 10.21.19 10.12.23 - 09.12.27 | Local Committee |
Farnborough Primary School (formed Trust on 09.12.15)
Cathy
| ROLE | DATE OF APPT/ TERM OF OFFICE | APPOINTED BY |
|---|---|---|
| LCM – Parent LCM – Community | 12.05.17 - 11.05.21 22.06.21 - 21.06.25 | Elected by parents Local Committee |
| Chair LCM – Community | 11.07.16 - 10.07.20 11.07.20 - 10.07.24 | Local Committee |
| LCM – Community | 21.03.24 - 20.03.28 | Local Committee |
| LCM – Headteacher | Ex officio | Ex officio |
| Vice Chair LCM – Community | 11.07.16 - 10.07.20 11.07.20 - 10.07.24 | Local Committee |
| LCM – Parent | 23.11.16 - 19.04.21 20.04.21 - 19.04.25 | Elected by parents |
| LCM – Staff | 20.10.14 - 19.10.18 20.10.18 - 19.10.22 20.10.22 - 19.10.26 | Elected by staff |
Goose Green Primary School (joined Trust 01.09.22)
NAME
Zamza
Karen
Cassia
Evelyn
Robert
Stefan
Louise
Cat Sh
| ROLE | DATE OF APPT/ TERM OF OFFICE | APPOINTED BY |
|---|---|---|
| LCM – Parent | 07.10.21 - 06.10.25 | Elected by parents |
| LCM – Community | 04.07.19 - 03.07.23 04.07.23 - 03.07.27 | Local Committee |
| LCM – Staff | 05.10.23 - 04.10.23 05.10.23 - 04.10.27 | Elected by staff |
| LCM – Community | 05.10.23 - 04.10.27 | Local Committee |
| LCM – Community | 18.05.23 - 17.05.27 Resigned 28.02.24 | Local Committee |
| Chair LCM – Community | 08.07.21 - 07.07.25 Resigned 31.12.23 | Local Committee |
| LCM – Community | 07.03.24 - 06.03.28 | Local Committee |
| LCM – Headteacher | Ex officio | Ex officio |
| LCM – Community | 13.07.23 - 12.07.27 | Local Committee |
| LCM – Headteacher | Ex officio | Ex officio |
| Vice Chair LCM – Parent | 07.10.21 - 06.10.25 | Elected by parents |
Highfield Infants' School and Highfield Junior School (joined Trust on 01.11.17)
Vanes
Joann
David
Nicola
| ROLE | DATE OF APPT/ TERM OF OFFICE | APPOINTED BY |
|---|---|---|
| LCM – Parents | 09.11.22 - 08.11.26 | Elected by parents |
| LCM – Community | 22.02.24 - 21.02.28 | Local Committee |
| LCM – Community | 23.11.23 - 22.11.27 | Local Committee |
| LCM – Community | 14.07.21 - 13.07.25 Resigned 03.09.23 | Local Committee |
| LCM – Parents | 15.06.21 - 14.06.25 | Elected by parents |
| LCM – Staff | 13.09.23 - 12.09.27 | Elected by staff |
| LCM – Community | 09.11.22 - 08.11.26 | Local Committee |
| LCM – Headteacher | Ex officio | Ex officio |
| LCM – Community | 09.11.22 - 08.11.26 | Local Committee |
| Chair LCM – Community | 20.11.19 - 31.08.22 01.09.22 - 31.08.26 | Local Committee |
| LCM – Staff | 01.09.21 - 31.08.25 | Elected by staff |
John Donne Primary School (joined Trust on 01.09.22)
NAME
Susan
Dave H
Oliver
Cynthia
Kevin
Jo Roo
Laura
| ROLE | DATE OF APPT/ TERM OF OFFICE | APPOINTED BY | |
|---|---|---|---|
| LCM – Parent | 08.06.22 - 07.06.26 | Elected by parents | |
| LCM – Community | 06.03.24 - 05.03.28 | Local Committee | |
| LCM – Community | 06.07.21 - 05.07.25 | Local Committee | |
| Chair LCM – Community | 06.07.21 - 05.07.25 | Local Committee | Married to a teacher at the school |
| | | | Parent of a child at the school |
| LCM – Staff | 15.12.20 - 14.12.25 | Elected by staff | |
| LCM - Headteacher | Ex officio | Ex officio | |
| Vice Chair LCM – Community | 06.07.21 - 05.07.25 | Local Committee | |
John Keats Primary School (joined Trust on 01.09.22)
NAME
Nyrissa
Andrew Dick
Canber
Mauric
Mirand
Rehka
Rukaiy
Aneira
Matt R
| ROLE | DATE OF APPT/ TERM OF OFFICE | APPOINTED BY |
|---|---|---|
| LCM – Staff | 24.06.21 - 23.06.25 | Elected by staff |
| LCM – Community | 06.07.23 - 05.07.27 | Local Committee |
| Vice Chair LCM – Community | 04.10.22 - 03.10.26 Resigned 11.03.24 | Local Committee |
| Chair LCM – Community | 01.12.21 - 30.11.25 | Local Committee |
| LCM – Parent | 07.05.21 - 06.05.25 | Elected by parents |
| LCM – Community | 03.02.22 - 02.02.26 | Local Committee |
| LCM – Parent | 21.07.22 - 20.07.26 | Elected by parents |
| LCM – Staff | 21.07.22 - 20.07.26 | Elected by staff |
| LCM – Community | 06.07.23 - 05.07.27 | Local Committee |
| LCM – Headteacher | Ex officio | Ex officio |
| LCM – Community | 29.09.22 - 28.09.25 Resigned 22.02.24 | Local Committee |
Joydens Wood Infant and Junior Schools (joined Trust on 01.03.23)
Rache
Anwar
| ROLE | DATE OF APPT/ TERM OF OFFICE | APPOINTED BY |
|---|---|---|
| LCM - Community | 20.07.23 - 19.7.27 | Local Committee |
| LCM – Parent | 09.01.20 - 08.01.24 End of term 08.01.24 | Elected by parents |
| LCM – Staff (Infant) | First appointed 30.10.19 31.10.23 - 30.10.27 | Elected by staff |
| LCM – Staff (Junior) | 11.10.23 - 10.10.27 | Elected by staff |
| LCM – Co-Headteacher (Infant) | Ex Officio | Ex-officio |
| LCM – Community | 22.09.23 - 21.09.27 | Local Committee |
| LCM – Headteacher (Junior) | Ex Officio | Ex-officio |
| LCM – Parents Co-Chair | 17.09.21 - 16.09.25 | Elected by parents |
| LCM – Co-Headteacher (Infant) | Ex Officio | Ex Officio |
| LCM – Community Co-Chair | 16.11.21 - 15.11.25 | Local Committee |
Manor Oak Primary School (joined Trust on 01.11.17)
NAME
Jane B
David C
Rebecc
Tanel
Kit Tse
| ROLE | DATE OF APPT/ TERM OF OFFICE | APPOINTED BY |
|---|---|---|
| LCM – Headteacher | Ex officio | Ex officio |
| Vice Chair LCM – Community | 30.04.18 - 29.04.22 30.04.22 - 29.04.26 | Local Committee |
| LCM – Staff | 01.09.22 - 31.08.26 | Elected by staff |
| Chair LCM – Community | 25.09.19 - 24.09.23 25.09.23 - 24.09.27 | Local Committee |
| LCM – Community | 14.03.19 - 12.03.23 12.03.23 - 13.03.27 | Local Committee |
Perry Hall Primary School (joined Trust on 01.11.17)
NAME
Oluwa
Greg Bull
Adefioy
Kate Ca
Stuart
Christi
Olivia
Carol R
Lorrain
Kvina
Neeley
Karen
| ROLE | DATE OF APPT/ TERM OF OFFICE | APPOINTED BY |
|---|---|---|
| LCM – Community | 30.03.22 - 29.03.26 | Local Committee |
| LCM – Staff | 21.02.22 - 20.02.26 | Elected by staff |
| LCM – Community | 15.11.23 - 14.11.27 | Local Committee |
| LCM – Parent Chair – LCM Community | 02.10.15 - 01.10.19 02.10.19 - 01.10.23 Resigned 09.01.24 | Elected by parents Local Committee |
| Vice-Chair LCM - Community | 15.11.23 - 14.11.27 | Local Committee |
| LCM - Staff | 20.11.19 - 19.11.23 20.11.23 - 19.11.27 | Elected by staff |
| LCM – Parent | 03.12.19 - 02.12.23 End of office 02.12.23 | Elected by parents |
| LCM – Community | 19.07.22 - 18.07.26 Resigned 11.09.23 | Local Committee |
| LCM – Community | 25.03.24 - 25.03.28 | Local Committee |
| LCM – Headteacher | Ex officio | Ex officio |
| LCM – Community | 31.01.18 - 30.01.22 31.01.22 - 30.01.26 | Local Committee |
| LCM – Parent | 26.03.24 - 25.03.28 | Elected by parents |
| LCM – Parent | 26.03.24 - 25.03.28 | Elected by parents |
Pickhurst Infant Academy (joined Trust on 01.11.17)
NAME
Lynn Key
Beth Ri
Christi
Lauren
Robert
Jon Ro
Tusha
Sarah
| ROLE | DATE OF APPT/ TERM OF OFFICE | APPOINTED BY |
|---|---|---|
| LCM – Community | 20.05.15 - 20.05.19 20.05.19 - 19.05.23 20.05.23 - 19.05.27 | Local Committee |
| LCM - Headteacher | Ex officio | Ex officio |
| Chair LCM – Community | 17.08.12 - 16.08.16 17.08.16 - 16.08.20 17.08.20 - 16.08.24 | Board |
| LCM – Parent | 17.03.23 - 16.03.27 | Elected by parents |
| LCM – Staff | 06.10.23 - 05.10.27 | Elected by staff |
| LCM – Community | 13.07.23 - 12.07.27 | Local Committee |
| Vice Chair LCM – Community | 09.05.13 - 08.05.17 09.05.17 - 08.05.22 09.05.22 - 08.05.26 | Local Committee |
| LCM – Community | 10.12.14 - 09.12.18 10.12.18 - 09.12.22 10.12.22 - 09.12.26 | Local Committee |
| LCM – Parent | 07.07.21 - 06.07.25 Resigned 21.11.23 | Elected by parents |
Worsley Bridge Primary School (joined Trust on 01.1.16)
NAME
Lucy B
Sophie
Angela
Dawn
Peter W
| ROLE | DATE OF APPT/ TERM OF OFFICE | APPOINTED BY |
|---|---|---|
| Chair LCM – Community | 01.09.22 - 31.08.26 | Local Committee |
| LCM – Community | 29.09.22 - 28.09.26 | Local Committee |
| LCM – Head of School | Ex officio | Ex officio |
| LCM – Community | 27.11.23 - 25.11.27 | Local Committee |
| LCM – Headteacher | Ex officio 01.01.21 | Ex officio |
| LCM – Staff | 16.11.21 - 15.11.25 | Elected by staff |
| LCM – Parent | 21.06.21 - 20.06.25 | Elected by parents |
| LCM – Parent | 24.03.23 - 23.03.27 | Elected by parents |
|
T he Montreal Economic Institute (MEI) is an independent, non-profit, non-partisan research and educational institute. The Institute attempts to further the understanding of economic issues among Canadians in general, and Francophone Quebecers in particular, by organizing conferences and publishing studies, and through the print and electronic media.
The MEI's mission is to propose original and innovative solutions for the crafting of efficient public policies, using successful reforms applied elsewhere as models. It receives no public funding.
Montreal Economic Institute 6418, St-Hubert St., 2 nd floor Montreal, Quebec H2S 2M2
Tel.: (514) 273-0969
Fax: (514) 273-0967 email@example.com www.iedm.org
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OFFICERS
(on December 31, 2002)
Yves Guérard Honorary Chairman of the Board
Adrien D. Pouliot Chairman of the Board
Richard Carter Vice-Chairman of the Board
Denis Cousineau Hélène Desmarais Daniel Dorey Spiridon Kantardjieff Michel Kelly-Gagnon Normand Lebeau Ronald Monet Board members
STAFF
(on December 31, 2002)
Michel Kelly-Gagnon Executive Director
Pierre Desrochers Director of Research
Norma Kozhaya Economist
Patrick Leblanc Director of Events and Communications
Jasmin Guénette Coordinator, Students Affairs and Distribution of Publications
Avi Sokolova Administrative Assistant
Gilles Guénette Webmaster
MESSAGE FROM THE CHAIRMAN OF THE BOARD
I am often asked what purpose is served by a think tank such as the Montreal Economic Institute. Organizing events and producing studies is not very original in itself, and plenty of others are doing it.
My answer is simple: a think tank works to change things! In this sense, what our institute is doing is unique in Quebec. As former Ontario premier Mike Harris stated in the quote excerpted on the cover of this report,the MEI "is bringing a new way of thinking about Quebec's future." Its importance has to do with the fact that it brings an original outlook to the questions the province has to face.This outlook is clear and coherent,focused on the importance of having an efficient government that targets its actions more precisely as well as an economy freed of useless regulatory restraints and excessive taxes. It is an independent, non-partisan outlook that is not afraid to cast a critical look at Quebec's public policies or to deal with unpopular themes.
It is evident that this new outlook is spreading, both among the general public and among decision makers. The most striking development of this fourth year of MEI operations is that we are no longer just a producer of ideas but that these ideas are increasingly recognized and respected within Quebec society.
For example, on April 25, Opposition Leader Jean Charest quoted from an MEI study to support a question he put to Premier Bernard Landry in the National Assembly. The premier responded that he had just read the study and that he respected the work of the MEI. The National Post mentioned a few months later that "all political parties in Quebec now use MEI research to score points off each other." You need only consult the media archives on our Web site to see the impressive number of organizations and personalities who have been affected by the efforts of our dynamic little team over the year just ended.I take off my hat to them and thank them for their intellectual rigour,their devotion and their hard work.The Institute would not have reached new heights in 2002 without them.
The year 2003 is an election year in Quebec.Whatever the results of the vote, the MEI's research and popularization work have already achieved varying degrees of influence among the three main parties and among voters. Thanks to the generous and on-going support from its many donors and sympathizers, they will surely have a growing impact on the development of public policy in tomorrow's Quebec.
Adrien D. Pouliot Chairman
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MESSAGE FROM THE EXECUTIVE DIRECTOR
The year 2002 was the Montreal Economic Institute's fourth year of activity. In addition to a level of media visibility following upon the rapid growth of the previous years, our most noteworthy advance has no doubt been in the tangible influence of our institute's work on various sectors of society, particularly among decision makers.
Again this year, reform of the health care system and the quality of our education system have been the main focus of the MEI's activities, reflecting the public's two central concerns and the provincial government's two principal areas of activity.The other main themes we touched upon have included Canadian productivity and living standards, the housing crisis, sustainable forest development, and government programs for financing innovation.
Events
The MEI organized six major events in 2002. The broadest media impact undeniably came from the luncheon speech given by Robert McTeer, president and CEO of the Federal Reserve Bank of Dallas, who shared his ideas on the state of the U.S. economy. His remarks to the MEI, covered by major international
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news agencies such as Reuters, Bloomberg, AFP and Dow Jones Newswire, were distributed around the planet and appeared in newspapers as far away as Singapore.That same day, the MEI organized a roundtable discussion on the productivity and living standard gaps between the U.S. and Canada. Participants included former Bank of Canada governor Gordon Thiessen.
Two health economists, Johan Hjertqvist from Stockholm and Cynthia Ramsay from Vancouver, explained to an MEI audience how other countries have ushered in reforms to improve their health systems. As a general election approaches in Quebec,this theme goes to the heart of public debate. Representatives of both opposition parties attended these presentations and were able to exchange views with the speakers.
Two renowned Canadian politicians, federal minister Maurizio Bevilacqua and former Ontario premier Mike Harris,presented their visions of a prosperous and economically dynamic Canada during well attended luncheon speeches. These speeches have been drawing large numbers of eminent participants from the Montreal business community and from among Quebec political decision makers.MEI events are now part of a tradition of prestigious events in the city's social life.
In addition, our internal collaborators and associates have been involved in close to two dozen assorted activities,ranging from presenting briefs at hearings of cross-Canada commissions of enquiry to debates and speeches before more specific audiences.
Publications
The MEI issued seven publications during the year in addition to the dozens of opinion pieces written by our collaborators that appeared in various newspapers and other publications. As in previous years,the keenest interest was sparked by our Report Card on Quebec's
Secondary Schools, produced in collaboration with the Fraser Institute and published in its entirety in the prestigious magazine L'actualité.In addition to numerous reports in national media, special effort went this year into reaching the regional press.This effort paid off, giving us visibility in more than 50 regional weeklies across Quebec.
Beyond the criticism that greeted the first two editions, we have already seen tangible change resulting from the Report Card.This has advanced the level of debate on education in Quebec, proving the Report Card's usefulness.
The department of education has created its own "success plan" for schools.This plan is not based on the same data, but it does show recognition of parents' need to be better informed and to have the ability to compare.The Federation of school boards announced that it intended to "let the public know about the services offered by a school, defining the school's personality and its distinctive attractions to sell it more effectively,etc." — in short,selling a school more effectively, as any service provider does. We can only applaud this new spirit of excellence. Moreover, a research group at the University of Montreal also expects to launch a sort of report card of its own in 2003. The MEI rejoices in seeing that the need to evaluate school performance is moving closer to unanimity, even if there are differences in methodology.
Among the year's other publications, we should mention two research papers written by our research director,Pierre Desrochers.One evaluated the Quebec government's tax measures toward the multimedia and e-commerce "cités", leading to exchanges in the National Assembly between the premier and the opposition leader as well as between the finance minister and the Liberal finance critic. Later in the year, the finance minister announced amendments to the program that followed the general thrust of our study's recommendations. The other paper dealt with the housing crisis and also stirred a sizable response. For the first time, an outlook other than that of traditional pressure groups was heard in an intense debate that made headlines in Quebec over a period of weeks.
Finally, it should be noted that our publications are now available in most commercial and academic bookstores across the province,as well as in almost all public libraries.
Media coverage
I have already mentioned the worldwide media impact generated by one of our events.Obviously,our primary goal is to reach the Quebec public and create a deeper understanding of the mechanisms and principles underlying the operation of a market economy. The better our fellow citizens can identify the pertinent points in public policy debates, the better are the chances that our leaders will adopt policies that not only make good electoral sense but are also rational, fair and economically effective.
Over the past year we have succeeded more than ever in fulfilling this educational mission. A growing number of people in Quebec have heard us mentioned, have seen reports concerning us, or have read articles dealing with our activities or written by our collaborators. During 2002 we were mentioned more than 620 times in newspaper and magazine articles or in radio and TV reports or interviews.This is up from 430 in 2001 and only 175 in 2000, which constitutes an extraordinary advance.
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This shows that our message is of more than academic interest. It has been stirring reactions and debate among commentators as well as among the general public.This impact is an essential precondition if we want our leaders to adopt policies that are appropriate to our future prosperity.
Web site
Again this year our site has drawn growing traffic,with a very heavy peak in the days following the publication of the Report Card on Quebec's Secondary Schools and a year-round increase of nearly 40%. At year's end, the site was receiving a daily average of 400 visitors, who were consulting a total of nearly 2,000 pages.
Financial situation
After a slightly more difficult year in 2001, fundraising as well as other income generated by the MEI (publication subscriptions and sales, event registrations and sponsorships, and interest income) were up by 31% in 2002, reaching $754,951. A peak! This precious donor support left us in an excellent financial situation and helped us raise the effectiveness of our actions. Expenses (salaries, operating costs, organization of speeches and publications) climbed more slowly than revenues and were up 26%, stabilizing at $587,911. Our year-end surplus rose considerably, reaching $167,040. We thus have an assurance, even if the
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economic situation becomes more difficult over the coming years, that the MEI's financial stability and its mission will not be compromised.
2002 Financial Statement
The MEI proved again this year that it has an essential role to play in public policy debate in Quebec. This contribution is important not only in terms of quantity and quality: it also has a real influence.As stated by Linda Whetstone, president of the London-based International Policy Network, this influence is not limited to Quebec:"The Montreal Economic Institute is not only fast becoming a force to be reckoned with in Quebec but far beyond its borders as well. The MEI brings a new dynamism and urgency to the all important debates on public policies, researching and promoting approaches that genuinely deliver prosperity and long-term welfare."
To conclude,an investment in the MEI is an investment in the future dynamism and prosperity of our society.
Michel Kelly-Gagnon
Executive director
THE MEI'S CONFERENCES AND ACTIVITIES IN 2002
February 9 – Understanding Public Policy Myths Annual day-long student seminar presented jointly by the MEI and The Fraser Institute.
February 20 – Performance indicators and the measurement of added value
Conference by Richard Marceau, MEI associate researcher, for the Quebec Program Evaluation Society.
March 14 – The health care debate: Myths, realities and public policies
Presentation by Michel Kelly-Gagnon, MEI executive director, at the Quebec Public-Private Partnership Institute.
March 25 – Presentation before the Commission on the future of health care in Canada
Presentation by Dr. J. Edwin Coffey, MEI associate researcher, and Michel Kelly-Gagnon, MEI executive director.
March 27 – Productivity with a Purpose
MEI luncheon speech by Maurizio Bevilacqua, Secretary of State (Science, Research & Development), in collaboration with the Quebec Manufacturers & Exporters.
15 avril – Ce que la Commission Romanow devrait retenir des réformes de la Suède
Présentation de Johan Hjertqvist, directeur de Timbro Health Unit, sur la réforme des soins de santé en Suède dans le cadre d'un 5 à 7 de l'IEDM.
April 26 – Myths about Urban Sprawl
Presentation by Pierre Desrochers,MEI research director, for the Montreal Metropolitan Community development commission on suburban expansion.
April 30 – Are School Report Cards Useful?
Presentation by Richard Marceau, MEI associate researcher,at the Francophone summit on the evaluation of performance and accountability in education.
May 3 – Forest Management in Quebec
Presentation by Pierre Desrochers,MEI research director, at the national conference of Solidarité rurale.
May 24 – The Report Card on Quebec High Schools and the Poor
Presentation by Richard Marceau,MEI associate researcher, at a Montreal Island School Council's symposium.
May 27 – Reforming the Canadian health care system
Presentation by Dr. J. Edwin Coffey, MEI associate researcher,and Michel Kelly-Gagnon,MEI executive director, for the board members of the Canadian Chamber of Commerce.
May 30 – Productivity and Standard of Living: Convergence or Divergence?
This MEI panel discussion on the productivity gap between Canada and the U.S. included Gordon Thiessen (former governor, Bank of Canada), P.-A. Huot (Quebec Manufacturers & Exporters), Andrei Sulzenko (Industry Canada), Serge Coulombe (University of Ottawa) and Hans Black (Interinvest Corporation).
30 mai – A Status Report on the U.S. Economy: How is the Elephant Doing?
MEI luncheon speech by Robert D. McTeer Jr., president and CEO of the Federal Reserve Bank of Dallas.
June 1 – The relative decline of productivity in the Quebec economy
Presentation by Pierre Desrochers,MEI research director, at the Quebec Liberal Party general council meeting.
August 21 – The influence of a diversified economic base on the combination of techniques
Presentation by Pierre Desrochers,MEI research director, to the annual symposium of the French-Language Regional Science Association.
September 20 – Public policy and the competitiveness of cities: lessons from Quebec's "Cité" approach
Presentation by Pierre Desrochers,MEI research director, before a committee from the Organisation for Economic Cooperation and Development (OECD) studying the competitiveness of metropolitan areas.
September 26 – Universal, Affordable, Quality
Health Care: Ideas from Other Countries
Presentation by health economist Cynthia Ramsay at a MEI public policy cocktail.
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September 30 – Green or black GDP?
Presentation by Pierre Desrochers,MEI research director, on the possibility of reconciling the market economy with sustainable development, during a debate at AndréGrasset College.
October 16 – Social housing: a lasting solution to the housing crisis?
Presentation of a brief to the Land Use Commission by Pierre Desrochers, MEI research director.
October 24 – Performance reports: advantages and drawbacks
Presentation by Richard Marceau, MEI associate researcher, at a luncheon held by the Greater Montreal Public Administration Institute.
October 26 – The productivity problem in the Canadian economy
Presentation by Pierre Desrochers,MEI research director, as part of a Canadian Alliance regional conference in Quebec City.
November 8 – Urban sprawl, a false problem
Presentation by Pierre Desrochers,MEI research director, as part of a symposium organized jointly by the Montreal School Board's central committee on the environment and by the Quebec Association for the Promotion of Education on the Environment.
November 16 – The Report Card on Quebec's Secondary Schools
Presentation by Richard Marceau, MEI associate researcher,as part of a symposium held by the association of parents' committees of the Quebec City and Chaudière-Appalaches region.
November 25 – How to solve the housing crisis in Quebec?
Presentation by Pierre Desrochers,MEI research director, as part of a symposium held by the Greater Montreal Association of Apartment Owners.
November 27 – For a cohabitation of students', parents' and school staffs' points of view on success in education
Presentation by Richard Marceau, MEI associate researcher,at the opening debate of a symposium held by the Quebec association of school administrators.
December 4 – Unleashing Canada
MEI luncheon speech with the Honourable Mike Harris, premier of Ontario from 1995 to 2002.
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THE MEI'S PUBLICATIONS IN 2002
February – Les « cités »: Une politique efficace pour la nouvelle économie?
(The "cités": an efficient policy for the New Economy?) Research Paper by Pierre Desrochers,MEI research director, on the Quebec government "Cités" projects.
March – Comment assurer le développement durable de nos forêts
(How to ensure the sustainable management of our forests) This Economic Note by Pierre Desrochers, MEI research director,examines Quebec's forest management policy.
April – Les hôpitaux publics: des avenues de
réforme par un partenariat avec l'entreprise privée (Public Hospitals: Options for Reform through Publicis a translation of a World Bank publication on hospital management
Private Partnerships) This Economic Note models throughout the world.
May – Frédéric Bastiat, défenseur du bon sens économique
(Frédéric Bastiat, Defender of Economic Good Sense) Collection of the best essays by Frédéric Bastiat, a 19 th century French economist, journalist and politician.
June – Comment résoudre la crise du logement au Québec?
(How to Solve the Housing Crisis in Quebec?) This Research Paper by Pierre Desrochers, MEI research director, analyzes the causes and proposes solutions to the housing crisis.
September – Le démantèlement de l'État-providence au Québec: mythe ou réalité?
(The Dismantling of the Welfare State in Quebec: Myth or Reality?) Economic Note by MEI economist Norma Kozhaya on the real evolution of social spending in Quebec.
November – Report Card on Quebec's Secondary Schools, 2002 edition
Third edition of this study which measures and compares school performance, co-authored by Richard Marceau, associate researcher at the MEI, and Peter Cowley, Director of School Performance Studies at the Fraser Institute.
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EMERGENCY PROCEDURES
EMERGENCY PHONE NUMBERS
Fire / Paramedic / Police:
Emergency 9-1-1
Campus Safety Emergency Line:
3-3-3
SAC Campus Safety 714-564-6330
SCC Campus Safety 714-628-4730
OEC Campus Safety 714-628-5950
District Safety Office 714-480-7331
Risk Management 714-480-7570
Updated 10/20/09
Emergencies may also be reported by using the emergency phones located at various locations around campus identified by a blue light.
CHEMICAL & BIOLOGICAL SPILLS
Prepare for a Spill
The nature and quantity of hazardous substances used in laboratories require preplanning to respond safely to chemical spills. The clean-up of a chemical spill should only be done by knowledgeable and experienced personnel. Spill kits with instructions, absorbents, protective equipment and disposal bags and labels should be available to clean up minor spills. A minor chemical spill is one that the laboratory staff is capable of handling safely without the assistance of emergency personnel. All other chemical spills are considered major.
All laboratories utilizing hazardous chemicals must have standard operating procedures that address chemical spill response actions. These SOPs must identify appropriate response equipment, procedures and limitations.
Chemical Spill
* Remove any affected personnel from the area.
* Close doors to affected area.
* If spill is flammable, turn off ignition and heat sources, evacuate area, activate fire alarm.
* If spill or its vapor migrates outside of laboratory to other occupied spaces, activate building evacuation alarm
* Call the Campus Safety Office – 3-3-3.
* Attend to injured personnel, as necessary.
* Call 911 if it is a large spill or possibly life threatening.
* Before attempting to clean up the spill, know what the chemical is and locate the appropriate MSDS (Material Safety Data Sheet). Wear appropriate personal protective equipment (gloves, aprons, face shield, etc). Follow instructions on that sheet.
* Contain the spill, unless doing so poses a risk, and alert others in the immediate area.
Chemical Spill to the Body
* Immediately flood exposed area with water (faucet, safety shower) for at least 15 minutes.
* For a splash to the eyes, immediately rinse eyes and inner surface of eyelid with water continuously for 15 minutes. Forcibly hold eye open to ensure effective wash.
* Call the Safety Office.
* Locate the MSDS, follow instructions and seek medical attention.
* Report incident to supervisor.
Blood Spills
* Isolate the area and alert personnel in immediate area of spill.
* Attend to injured or contaminated persons and remove them from exposure.
* Personal protective equipment must be worn such as gloves, protective clothing, and eye and face protection.
* Notify Custodial Services for clean up.
o Use paper towels to wipe up the spill, working from the edges into the center.
o Cover spill with paper towels or other absorbent materials. Use biohazard spill kit.
o Clean spill area with fresh towels soaked in disinfectant (10% bleach solution).
QUAKE SAFETY
PREPARE BEFORE A QUAKE
1. Plan an escape route and an alternate. Locate the stairwell exit nearest you and an alternate in case the first is blocked. Keep a flashlight handy.
3. Secure tall furniture to the wall. Keep heavy items on the bottom of shelves. This applies to both home and work.
2. Keep personal supplies in your car or desk. A change of clothing, shoes, medication, water, and blanket are just a few things to have available.
4. Store chemicals properly. Separate incompatible chemicals and keep them on shelves with protective barriers or behind cupboard doors that lock.
5. Learn First Aid & CPR.
DURING A QUAKE - TAKE COVER
Indoors:
Stay indoors and take cover where you are. Watch for falling plaster, light fixtures, high bookcases, shelves, and other furniture which might slide or topple. Stay away from windows and mirrors. If in danger, get under a table or desk, against a hallway wall, or in a corner away from windows. Encourage others to follow your example. Do not run outdoors; falling debris or electrical wires may hit you.
Outdoors:
Avoid high buildings, walls, power poles, and other objects which could fall. Do not run through streets. If possible, move to an open area away from all hazards. Protect your head and neck.
In Your Car:
Stop in the safest place available, preferably an open area.
If power fails, elevators will stop and lights will go off.
If in an Elevator:
Be patient. Emergency personnel will rescue you as soon as possible.
AFTER A QUAKE…..
* Expect aftershocks over the next hours or days.
* Assess your surroundings, check for damage and hazardous conditions. Report them to supervisor or emergency personnel.
* Check yourself and others for injuries. Report any injuries to supervisor or emergency personnel.
* Phone systems may be severely impacted. Limit phone use to emergency calls only.
* If asked to evacuate to assembly areas, move swiftly. Grab keys, personal items and emergency supplies only if convenient and safe to do so. DO NOT USE ELEVATORS.
* DO NOT EVACUATE AUTOMATICALLY. Outdoor hazards may be greater than indoor hazards.
* Follow directions of emergency responders
STUDENTS WITH DISABILITIES
* Make a list of any special needs, medications, or equipment that you have. Always keep an updated copy of the list with you.
* Arrange to have "buddies" help you during an emergency.
* Keep any auxiliary device you use, along with extra batteries, medications, or other necessary items nearby at all times.
* Know how to take cover during a quake. If you are in a wheelchair, lock the wheels once you are in a protected location.
* Call for help if you need it
* If you cannot move safely and quickly, stay where you are. Cover you head and body with your arms, a pillow, or blanket.
MEDICAL EMERGENCIES
CALL FOR HELP
Report all on-campus medical emergencies immediately to Campus Safety – Call 3-3-3 from a campus phone.
When a person cannot or should not be moved has breathing difficulty or suspected heart attack
CALL 911
Report the nature of the medical problem, the location of the victim and your name. The dispatcher will call paramedics, Safety Officers and Health Center personnel where applicable. Safety Officers are trained in CPR and basic first aid.
* DO NOT MOVE VICTIM UNLESS AN IMMINENT HAZARD MAKES IT UNAVOIDABLE.
* Have someone meet and escort security staff and medical personnel to the victim. Provide all requested information.
* Keep the victim comfortable.
General Instructions
Unconscious Person
2. Open the airway, check breathing, and pulse.
1. Assess responsiveness.
o If not breathing, give 2 breaths
3. Place a breathing person on their side (recovery position)
o If no pulse, begin CPR
4. Keep person warm & comfortable
Choking
1. Stand behind the victim and wrap your arms around the victim's waist.
If victim is coughing, or able to speak, stand by and allow victim to cough up object. If the victim is unable to speak do the following:
2. Grasp your hands in front of the victim; the hand that is resting against the victim's abdomen should be in a fist. Make sure that the fist is positioned between the tip of the breastbone and the navel.
3. With your hands tightly grasped, press your fist into the victim's abdomen, using a quick, upward thrust.
5. Obtain medical help.
4. Continue abdominal thrusts if necessary.
Fainting
1. Have the person sit down with their head between the knees or lie them down with their feet elevated.
.
2. Provide circulation of air and loosen tight fitting clothing.
1. Protect the victim during the seizure by removing any obstacles or objects they could be injured from.
Seizures
2. Do not use force to restrain the person.
4. Only move the person if in danger.
3. Do not put anything in their mouth.
5. Watch for vomiting! If the victim begins to vomit, turn them on their side to help avoid inhalation and choking.
Bleeding Injuries
2. Apply direct pressure to the wound using a clean cloth or hand.
1. Protect yourself from blood splatter! Wear protective gloves.
3. Elevate the injury if possible.
Burns, Thermal & Chemical
2. Flood chemical burn with cool water for 15 minutes.
1. Immerse burned area in cold water.
3. Cover burn with dry bandages.
FIRE SAFETY
When Fire or Smoke is Discovered
| R | A | C | E |
|---|---|---|---|
| Rescue/Remove Persons in Immediate Danger | Activate Alarm and Call 9-1-1 | Confine/Contain the Fire. Close Door After Exiting Area. | Extinguish with Portable Fire Extinguisher if Possible, or Evacuate |
1. In the event of a fire, alert others, activate the nearest fire alarm and GET OUT. Move everyone away from are of fire; close (but do not lock) all doors as you move in order to slow down spread of fire.
3. Do not use elevator.
2. Walk, do not run. Keep noise to a minimum. Walk carefully to avoid tripping.
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Life expectancy of shingle beaches: measuring in situ abrasion
Authors: Dornbusch, U., Williams, R.B.G., Moses, C., and Robinson,
D.A.
Source: Journal of Coastal Research, 36(sp1) : 249-255
Published By: Coastal Education and Research Foundation
URL: https://doi.org/10.2112/1551-5036-36.sp1.249
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SI 36
ISSN 0749-0208
Life expectancy of shingle beaches: measuring in situ abrasion
U. Dornbusch, R.B.G. Williams, C. Moses, D.A. Robinson
Geography Laboratory, School of Chemistry, Physics and Environmental Science, University of Sussex, Falmer, Brighton, BN1 9QJ, United Kingdom.
ABSTRACT
In situ abrasion of shingle beach material is a neglected area of study in coastal geomorphology, with reduction in beach volumes normally attributed to longshore and offshore drift. Results from field abrasion experiments conducted on flint shingle beaches on the East Sussex coast, southern England, show that in situ reductions in volume of beach material may be more significant than has been thought. Two beaches composed almost entirely of flint shingle were seeded with hard quartzite from a Devon beach and less resistant limestone from a South Wales beach that are readily distinguishable from the flint.
Average limestone abrasion rates (0.0266% loss of weight per tide) were three times greater than those of quartzite (0.0082% per tide). Measurable abrasion rates were recorded over just a few tidal cycles, not only in severe wave conditions but also in much calmer weather. The maximum abrasion rates recorded exceeded 1% per tide for limestone.
The seeding commenced in January 2001. The pebbles, similar in size and shape to the natural flint shingle, were left in the surf zone at two sites. Prior to exposure the pebbles were engraved with a code number and weighed. At regular intervals those that could be re-found were re-weighed and returned to the beach. Abrasion rates were calculated for each pebble as percentage weight loss per tide. By the end of October 2001, more than 700 measurements of abrasion rates had been made from a total of 431 pebbles.
ADDITIONALINDEX WORDS: Attrition, quartzite, limestone, Sussex coast, pebbles, cobbles, beach, flint
INTRODUCTION
Shingle beaches1 in East Sussex (UK) protect low-lying land from flooding and chalk cliffs from erosion by dissipating wave energy. They are therefore valuable assets in coastal zone management and a major amenity for tourism. Beach volume changes are usually attributed to longshore or across shore movement of material but intensive groyning of large parts of the East Sussex coast has increasingly restricted longshore movement. Across shore movement of shingle along most of the Sussex coast over shore platforms 100-200m wide appears to be infrequent, and movement in shallow nearshore waters is assumed to be negligible (Joliffe, 1964) so that the loss of material may largely be due to in situ abrasion.
from Kent (LATHAM et al., 1998). Experiments on cubes of chert in a surf simulator (KUENEN, 1964) produced measurable abrasion though KUENEN (1964, p.42) estimated that it would "take a thousand years for chert to form an ellipsoid". In contrast, tumbling experiments on flint shingle from Sussex beaches by DORNBUSCH et al. (in prep.) show much faster abrasion rates and indicate the need for field measurements.
It is generally thought that abrasion on flint beaches "is probably a very slow process" BIRD (1996, p. 777) and that "well rounded pebbles abrade very slowly" BRAY (1997, p. 1041). Recent laboratory experiments carried out in tumbling barrels showed virtually no abrasion of beach flint
In situ assessment of shingle abrasion has been undertaken by MATTHEWS (1983) who measured the roundness development of limestone tracer pebbles on greywacke and argillite beaches, but only SALMINEN (1935) and ZHDANOV (1958) have measured actual abrasion rates for individual pebbles. SALMINEN (1935), using four freshly broken angular gneiss and two rounded
In this paper the term shingle is used as the plural term and pebble as the singular for both pebble and cobble sized beach material
Journal of Coastal Research, Special Issue 36, 2002
local granite 'stones' (between 300g and more that 1000g) on a beach near Helsinki, recorded in one case considerable weight loss. The granite on a 'stony' beach lost 3.26% of its weight in 24 days although when found it appeared not to have been moved at all. The other granite on a sandy beach lost only 0.03% of its weight in six days, which SALMINEN (1935, p.57) attributed to its movement into deep water out of the "wearing field of the beach". It would be a mistake to assume that SALMINEN's results prove that hard lithologies undergo rapid abrasion because too few stones were used and insufficient attention was paid to standardising the drying process prior to weighing. Z H D A N O V (1958) undertook a much more rigorous experiment that involved deployment of 2000 marked sandstone pebbles with a mean weight of 305g (mean size between 50 and 60mm) on one day on a shingle beach between two groynes near Sotchi (Black Sea). A small hole was drilled into each pebble, a numbered tag inserted, the hole sealed with cement and the pebble weighed. Over the following five years 20% of the pebbles were recovered during 19 searches. The pebbles were weighed and then broken to identify them. From the abrasion of the 500
pebbles ZHDANOV calculated the annual weight losses to be 4.8% after adjusting for seasonal variations in wave energy.
These results prove that in situ abrasion of shingle on beaches can be quite rapid. In the case of groyned beaches, where no natural input of beach material from longshore movement or cliff erosion occurs, the beach volume can therefore be expected to decrease with time.
STUDY AREA
Two beaches have been studied on the East Sussex coast (Figure 1). At Saltdean beach a recharged beach segment protected by two massive concrete groynes 85m apart was selected. The beach width is ~95m, 30m of which is the storm beach. Under normal conditions considerable proportions of the beach face are covered with sand and gravel but shingle usually covers the surface close to the groynes. The recharge material consists mainly of brown subangular to subrounded flints brought in from offshore sources during protection works carried out between 1996 and 1997 (Figure 2a).
Telscombe beach, the second study site, is a more natural beach consisting of rounded black flints (Figure 2b) that are thought to have been eroded from the chalk cliffs behind and to the west of the beach. It is bounded on the east by the groyne of the Telscombe sewage outfall but tapers out along the cliff towards its western end (Figure 1). The beach is ~430m long and up to 40m wide at its eastern end. Only storm waves coinciding with spring tides reach the beachcliff contact. Under average conditions the beach face is predominantly covered with shingle.
Both beaches have an average slope of 5-10° and face southwest at ~200°. The mean and spring tidal ranges are 4.5m and 6.6m, respectively. POSFORD DUVIVIER (1993) provide a frequency analysis for wave height and direction at Shoreham, 25km to the west, which indicates that 1.6% of the significant wave heights exceed 3m, and 43.4% of all waves arrive from 180° - 240°.
Porthkerry Formation) were used (Figure 2). Both rock types are lighter in colour than the majority of the local flints. Their smooth surfaces lack chatter marks that are found on the black flints. They are also well rounded which aids recognition on the beach. In addition, the limestones are distinctive because their surface dries faster than that of the flints making them particularly visible when the beach is otherwise still wet. The mean weight of the limestones was 397g (ranging from 140 to 970g) and the quartzites 295g (ranging from 45 to 1700g), which translates into a mean size between 60 and 70mm. The size and shape of the test shingle were similar to the flint on the two test beaches.
METHODS
In situ measurement of the abrasion of shingle requires the recognition and identification of individual pebbles on a beach and the measurement of weight changes over a period of time. The local material cannot be used because it would be nearly impossible to recognise individual pebbles unless they were first marked with paint as is often done when tracing the movement of shingle. For the present experiment the pebble surfaces could not be altered in this way without affecting their abrasion potential.
To allow recognition and re-finding of test shingle on the surface of the flint beaches, hard quartzite from a Devon beach, (originating from the Triassic, Budleigh Salterton Beds), and less resistant limestone from a south Wales beach, (originating from the Lower Liassic Limestone of the
To identify individual pebbles each was engraved with a number or letter combination, inked in using a water resistant marker pen (Figures 2 and 3). This method is simpler than ZHDANOV's (1958) and allows for the pebble to be returned to the beach repeatedly, without destroying it as was necessary in his experiments. The engraving is 12mm deep and remains legible even if a pebble loses up to 5% of its weight (Figure 3). To identify pebbles that lost their engraving, photographs were taken before they were released and identification was based on visual, size and weight comparison. Pebble weight in grammes was recorded to three decimal places for those <410g and to two decimal places for larger ones. The pebbles were dried at 50°C for five days prior to weighing to minimise the influence of varying moisture contents on the pebble weight. Experiments with saturating and then drying quartzite and limestone shingle showed that a five day period is sufficient to reduce the moisture content to a level where any further drying produces insignificant changes compared with the weight change due to abrasion and balance error.
Seeding and collecting
RESULTS
Engraved and weighed pebbles were placed on the middle of the beach face at each site, within a short distance of the eastern groyne during low tide, and the preceding high tide was recorded as the 'set out' time. The beaches were then visited several times each week during low tide and searched for pebbles that, when found, were collected, dried for five days and weighed in the laboratory. The preceding high tide was recorded as the 'collection time' so that the period a pebble spent on the beach could be calculated as the number of high tides that have moved over the beach face. The precise shingle collection location was not recorded regularly, but observations at Saltdean beach indicated that although the majority of pebbles were recovered close to the eastern groyne, westward movement was common, and several crossed the 85m long beach to within one metre of the western groyne.
Wave data
Wave and wind data was obtained from the UK Met Office's UK wave model for a point at 50.72°N 0.08°W, 9km south of the study beaches. Model output provided significant wave height at three-hourly intervals for the study period. The off-shore location of the data point (water depth 28m), however, provided only a general representation of the near shore wave conditions. Offshore wave height was averaged for each period between high tides to provide mean conditions.
Seeding of the beaches started in January 2001 and by the end of October 2001 involved a total of 431 pebbles (217 quartzites and 214 limestones). Pebbles recovered and weighed were put out again. 165 (38%) have never been recovered but many of the remaining 266 have been found, weighed and released several times, resulting in 710 abrasion rate measurements. Comparing the average weight of those 165 never recovered (267.9 g for quartzites and 429.15 g for limestone) with those found at least once (306.9 g for quartzites and 401.4 for limestones) no systematic collection bias towards larger or smaller pebbles could be found. Nine measurements recorded no abrasion (only with quartzites) and 20 measurements recorded a minor weight gain (only with limestone). Weight gain as well as no change are likely to have been artefacts introduced in the weighing and drying process (e.g. balance error) and these measurements were therefore excluded from further analysis. These measurements occurred only when the pebbles had been exposed to very weak waves over a short period (< 4 tides) of time. Exposure time for individual pebbles ranged from 1 to 537 tides (Figure 4). The best collection results were obtained one or two tides after the seeding (Figure 4) when only moderate wave conditions prevailed during the intervening period. The mean weight loss over a period of 10 months between seeding and collection for all quartzites recovered was 0.36% compared with 1.44% for limestones. A b e t t e r measure of the abrasion is the percent weight loss per tide shown in Figure 5. This was very variable and ranged from 7.5x10-5 to 1.27 %.
The ratio of quartz against limestone abrasion of 1:3.2 echoes that of 1:3.3 found by KUENEN (1964 – 1958 in references) during experiments with chert, quartz and limestone in a wave simulation machine.
DISCUSSION
In situ abrasion rates for limestone and quartzite shingle have been successfully measured for a large number of individuals. The abrasion rate depends on pebble characteristics (hardness, weight, density and shape), beach characteristics (energy input, sediment hardness, size and shape) and pebble movement characteristics (movement involving high velocity impacts, movement on or within the mobile layer and burial or inactivity times). Although the pebble characteristics can be determined easily, energy input in the swash zone or pebble movement characteristics can be determined accurately only with special equipment (WILLIAMS and ROBERTS 1995, VOULGARIS et al. 1999) and are difficult to even estimate in the absence of such equipment. Pebble characteristics can be excluded when analysing abrasion rates for individual pebbles assuming these do not change significantly. In addition, if the shingle has been on the beach for only a short time and has undergone appreciable abrasion it can be assumed to have moved during most of this time and that burial and inactivity has been minimal. The main factor influencing the abrasion rate under these conditions should be the wave energy.A clear relationship between abrasion rate and mean wave height can be seen in Figure 6a and 6b for most of the 17 pebbles that have been out more than five times each and in Figure 7 for all pebbles. The skewed distribution of the abrasion rates in Figures 5 - 7 reflects the skewed distribution of the mean wave heights recorded for each pebble with low or moderate waves being much more frequent than large waves resulting in more measurements of small and moderate abrasion rates.
Multiple correlation analysis of the 681 measurements (Table 1) shows that abrasion rate is linked most strongly to mean wave height and that the pebble type is the next most important factor. The pebble weight also influences the abrasion rate but whether the shingle was put on Saltdean or Telscombe beach does not seem to make a difference. The higher correlation with the 'set out' time may indicate seasonal variations.
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Figures 6 and 7 also show the influence of different mineralogical hardness on the abrasion rate with the limestones abrading at up to three times the rate of the quartzites under similar wave conditions. The lithological difference can also be seen in Figure 6c where the abrasion rate for 15 pebbles that have been out on the same beach over the same time is plotted. The mean tidal abrasion loss for limestone is 0.0266% compared to 0.0082% for quartzite (Figure 7).
Although these mean tidal abrasion rates may seem small, when sustained over one year with ~700 tides the mean weight loss due to abrasion could be expected to range between 5.7% for quartzite and 18.6% for limestone. If one assumes the abrasion relationship found in experiments with rock cubes by KUENEN (1964, p. 29) where "losses by quartzite are one-third and losses by chert one-tenth of those of limestone" the annual weight loss of flint shingle could be as high as ~1.9% per year. This weight loss only applies to the material in the profile envelope. To provide more accurate estimates for the local flint beaches, the field abrasion rates of limestone and quartzite will be correlated with laboratory tumbling data for flint (DORNBUSCH et al., in prep.).
Table 1. Pearson correlations for shingle abrasion
Acknowledgements
The authors would like to thank S. Dornbusch, H. Morley and S. Hill for their support in searching for and collecting shingle on the beach and S. Rowland for help with drawing Figure 1. Wave model data was kindly provided by the UK MetOffice.
LITERATURE CITED
BIGELOW, G.E., 1984. Simulation of pebble abrasion on coastal benches by transgressive waves. Earth Surface Processes and Landforms, 9, 383-390.
BIRD, C. F., 1996. Lateral grading of beach sediments: a commentary. Journal of Coastal Research, 12(3), 774785.
KUENEN, P.H., 1964. Experimental abrasion: 6 surf action. Sedimentology 3, 29-43.
LATHAM, J.-P., HOAD, J.P. and NEWTON, M., 1998. Abrasion of a series of tracer materials on a gravel beach, Slapton Sands, Devon, UK. Advances in Aggregates and Armourstone Evaluation. Geological Society, London, Engineering Geology Special Publication, 13, 121-135
MATTHEWS, E.R., 1983. Measurements of beach pebble attrition in Palliser Bay, southern North Island, New Zealand. Sedimentology 3, 787-799.
SALMINEN, A., 1935. On the weathering of rocks and the composition of clays. Annales Academiæ Scientiarum Fennicæ Series A 44(6)
POSFORD DUVIVIER,1993. Report: Brighton Borough Council, Brighton Sea Defences, Brighton Marina to Saltdean, numerical modelling. 22p.
VOULGARIS, G., WORKMAN, M. and COLLINS M.B., 1999. Measurement techniques of shingle transport in the nearshore zone. Journal of Coastal Research 15 (4), 1030-1039.
DORNBUSCH, U., C. MOSES, D.A.ROBINSON and R.B.G. WILLIAMS (in preparation): Laboratory abrasion tests on flint beach shingle.
BIGELOW, G.E., 1988. Laboratory study of the role of seawater in basalt pebble abrasion. Journal of Coastal Research 4(1), 103-113.
B R AY, M. J., 1997. Episodic shingle supply and the modified development of Chesil Beach, England. Journal of Coastal Research, 13(4), 1035-1049.
WILLIAMS, A . T. and G.T. ROBERTS 1995. T h e measurement of pebble impact and wave action on shore platforms and beaches: the swash force transducer (swashometer). Marine Geology 129, 137-143.
JOLIFFE, I.P., 1964. Movement of shingle on the margins of Seaford bay. Hydraulics Research Station Wallingford, Report No INT 35, 36p.
ZHDANOV, A.M., 1958. Attrition of pebbles under the wave action. Bulletin of the Oceanographic committee of the USSR Academy of Sciences 1, 81-88. Original title: Istiranie galechyh nanosov pod deistviem volneniya. Bulleten Okeanograficheskoi komissii ANSSSR.
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14 th International Dialogue on Population and Sustainable Development
Accountability to advance sexual and reproductive health and rights: Delivering on commitments together
Berlin, November 10-11, 2016
Quick Facts
Existing regional and thematic accountability mechanisms for the achievement of SRHR-related goals
High-Level Political Forum on Sustainable Development (HLPF)
Convener: United Nations Economic and Social Council (ECOSOC) and every four years the United Nations General Assembly (UNGA)
Established in: 2013
Taking place: Annually in July, New York
Participants: All UN member states, major groups and other stakeholders
Short description: The HLPF is the central platform for the review of the 2030 Agenda for Sustainable Development at the global level. It aims to promote the exchange of best practices, experiences and obstacles to the implementation of the Sustainable Development Goals (SDGs), as well as to provide transparency and enhance the accountability of UN Member States. The main mechanisms to achieve this are the National Voluntary Reviews (NVR), in which member states provide insights into the progress made and the persisting challenges in the implementation process at the national level.
SRHR milestones: In 2016, SRHR was explicitly mentioned as an important rights-based concept crucial to achieving the SDGs in several NVRs, incl. those of Finland, France, Germany, Mexico, Philippines and Venezuela, among others. In 2017, the thematic review at the HLPF will include the SDGs on Health (3) and Gender (5).
Asia Pacific Forum on Sustainable Development (APFSD)
Convener: United Nations Economic and Social Commission in Asia Pacific (UN ESCAP) – Environment and Sustainable Development Division
Established in: 2014
Taking place: Annually in April / May; Bangkok, Thailand
Participants: Member States of Asia Pacific, Observer States, UN Agency representatives, Civil Society Observers
Short description: The APFSD is an inter-governmental regional consultation process supported by UN system coordination and collaboration, constructive and inclusive engagement of stakeholders, credible assessments of progress, and an effective sciencepolicy interface. It follows the theme of the High Level Political Forum (HLPF) and provides regional input into the process.
SRHR milestones: Formation of the Asia Pacific Regional Civil Society Engagement Mechanism (RCEM) in 2015. It is a constituency based platform (loosely based on the major group system at the UN) for interfacing with ESCAP on Agenda 2030 and related development issues, to ensure that voices of all sub-regions of Asia Pacific are heard in intergovernmental processes at regional and global level.
Formation of the cross- constituency Thematic Working Group (TWG) on Gender, Sexuality and SRHR at the RCEM. The TWG aims to mobilize organizations working on SRHR from across the different constituencies, provide SRHR related input on regional and global documents and organize joint activities at regional/global events.
Citizens' Hearings
Convener: International Planned Parenthood Federation (IPPF), Save the Children, The White Ribbon Alliance and World Vision
Established in: 2015
Taking place: To date, over 100 hearings, in villages, districts and capital cities, through to the World Health Assembly
Participants: The hearings have brought citizens, community groups (including children's, youth and women's rights groups), and faith leaders together with local councillors and chiefs, district leaders, prime ministers, parliamentarians, ministers, policy officials and health professionals.
Short description: A coalition to advocate for an inclusive approach to women's, children's and adolescents' health. The Citizens' Hearings on women's, children's and adolescents' health are open and constructive dialogues that give community members the chance to share recommendations for improved health services with local and national leaders. This form of social accountability serves the double purpose of empowering citizens to know their rights and to hold their leaders to account on commitments made to end the preventable deaths of women, newborns, children and adolescents.
SRHR milestones:
So far, the hearings have engaged tens of thousands of citizens in Africa and Asia – in Mauritania, Mali, Sierra Leone, Ghana, Nigeria, Niger, Uganda, Kenya, Tanzania, Malawi, Zambia, Lesotho, South Africa, India, Nepal, Bangladesh, Cambodia, Pakistan and Indonesia.
Global Citizens Dialogue on reproductive, maternal, newborn, child and adolescent health, held during the World Health Assembly in 2015 and 2016. Campaign strategy meeting in October 2016 to build the capacity of national level stakeholders in advocacy and social accountability tools and skills.
Commission on the Status of Women (CSW)
Convener: United Nations Economic and Social Council (ECOSOC)
Established in: June 1946
Taking place: Annually in March, New York
Participants: 45 member states elected by the Economic and Social Council for a period of four years on the basis of geographic distribution. ECOSOC-accredited NGOs can attend as well as UN entities, especially UN Women.
Short description: The Commission on the Status of Women (CSW) is the global intergovernmental body dedicated to the promotion of gender equality and the empowerment of women. It discusses progress and gaps in the implementation of the 1995 Beijing Declaration and Platform for Action, the key global policy document on gender equality, and Beijing+5, as well as emerging issues that affect gender equality and the empowerment of women. The outcomes and recommendations of each session are forwarded to ECOSOC for follow-up.
SRHR milestones: Over the past years, SRHR has been highly contested at CSW. Existing language on SRHR that has been preserved has been hard won. The milestone 60th session of CSW in March 2016 was the largest CSW ever and SRHR was a major discussion theme.
Unified Accountability Framework (UAF)
Convener: The Partnership for Maternal, Newborn & Child Health (PMNCH), as part of the Every Woman Every Child (EWEC) Architecture
Established in: 2016
Continuously
Taking place:
Participants: Multi-stakeholder engagement of UAF partners (notionally includes key stakeholders in accountability for women's, children's and adolescents' health)
Short description: The Unified Accountability Framework (UAF) supplements the Every Woman Every Child accountability model to support country-led accountability processes for resources, results and rights at all levels and between different sectors. It promotes multi-stakeholder engagement and mutual accountability to monitor, review and act. The UAF helps to harmonize partner efforts to strengthen civil registration and vital statistics by linking with existing regional and global accountability work. Data on the Global Strategy monitoring framework will be reviewed and updated annually in advance of the World Health Assembly, accompanied by an annual report.
SRHR milestones: A first report presented initial data and discusses requirements to support robust monitoring of progress towards the Global Strategy's objectives. The UAF will be essential to ensure the support of a single health information system that is closely linked to national statistical systems and will contribute to the Independent Accountability Panel's (IAP) reports on progress towards women's, children's and adolescents' health in the SDG-era as appropriate.
Independent Accountability Panel (IAP)
Convener: Independent panel appointed by the UN Secretary-General, housed by The Partnership for Maternal, Newborn & Child Health (PMNCH)
Established in: 2015
Taking place: Continuously; publication of an annual report
Participants: 10 panellists from diverse regions and backgrounds that range from human rights experts, economists, policymakers and health researchers to humanitarian leaders and statisticians.
Short description: The mandate of the IAP is to promote accountability for the strategies of the SDGs and the commitments to the updated Global Strategy for Women's, Children's and Adolescents' Health.
SRHR milestones: During the UN General Assembly in September 2016, the IAP released its first annual report, titled '2016: Old Challenges, New Hopes – Accountability for the Global Strategy for Women's, Children's and Adolescents' Health'. The IAP focused on inequalities in 12 key indicators, four of which are reproductive health indicators. Using a human rights framework, the IAP makes bold recommendations for donors, national governments and the private sector.
Commission on Population Development (CPD)
Convener: United Nations Economic and Social Council (ECOSOC)
Established in: The Population Commission was established by the UN Economic and Social Council 1946. Re-named Commission on Population and Development in 1994
Taking place: Annually in April, New York
Participants: 47 member states elected by the Economic and Social Council for a period of four years on the basis of geographic distribution. ECOSOC-accredited NGOs can attend. UN entities, especially UNFPA and UNDESA.
Short description: The Commission on Population and Development (CPD) is the global intergovernmental body to discuss and give advice on issues such as population issues and trends, integrating population and development strategies, and population and related development policies and programmes. It is tasked with monitoring, reviewing and assessing the implementation of the Programme of Action (PoA) at the national, regional and international levels and to advise the Economic and Social Council thereon. The outcomes and recommendations of each session are forwarded to ECOSOC for follow-up.
SRHR milestones: The 1994 International Conference on Population and Development (ICPD) Programme of Action (PoA) put the spotlight on SRHR and generated unprecedented commitment and support from governments. In 2014, a special session of the General Assembly endorsed the findings of the 20 year review and the UN General Assembly decided that the ICPD PoA should continue until the agenda is achieved (including governments committing to intensify efforts). The Framework of Actions for the follow-up to the ICPD PoA explicitly refers to access to safe abortion and sexual rights.
Universal Periodic Review (UPR)
United Nations Human Rights Council (HRC)
Convener:
Established in: 2006, first cycle of reviews from 2008 to 2011. 2017 sees the start of the 3rd cycle
Annually in March, June and September in Geneva
Taking place:
Participants: All UN member states. 14 states are reviewed at each session. There are 3 reviews per year, meaning 42 states are reviewed annually. Hence a 4.5 year cycle to review each and every UN member state.
Short description: Reviews of the human rights situation of countries take place through an interactive discussion between the state under review and other UN member states. During the review, any state can pose questions, comments and/or make recommendations to the states under review. Reviews are based on:
1. A national report of 20 pages prepared by the state under review;
2. A compilation of ten pages prepared by the Office of the High Commissioner on Human Rights (OHCHR) containing information from treaty bodies, special procedures and UN agencies;
3. A summary of ten pages prepared by the OHCHR containing information from civil society.
SRHR milestones: During the first cycle of the UPR, a total of 21,956 recommendations and voluntary commitments were made, 5,720 of which or 26 per cent of which pertained to SRHR and 77 per cent of which were accepted or partially accepted. A large proportion of the recommendations pertain to human rights instruments, gender equality, gender-based violence and women's human rights. Fewer recommendations have been made on contraception and family planning, early pregnancy, sex work and sexuality education.
Regional Conference on Population and Development in Latin America and the Caribbean
Convener: United Nations Economic Commission for Latin America and the Caribbean (ECLAC)
Established in: 2012
Taking place: Every two years (alternating national and regional)
Participants: Member States of ECLAC
Short description: This regional conference is the successor of the Ad Hoc Committee on Population and Development, which formed in 1996. It is one of the main review mechanisms for the implementation of SRHR and SRHR-related topics in the region. Its aim is to examine the progress made in LAC countries with regards to the ICPD Programme of Action and, since 2013 to the Programme of Action Beyond 2014 and the Montevideo Consensus. The conference is informed by the Ad Hoc Committee, which is currently developing indicators for regional follow-up of the Montevideo Consensus. The Conference will inform the work of the newly created, Latin American and Caribbean Forum on Sustainable Development that will be responsible for following the implementation in the region of the Agenda 2030, including the Sustainable Development Goals (SDGs).
SRHR milestones: During the first session of the Regional Conference, the Montevideo Consensus was adopted which is the regional ICPD review document. It was applauded beyond the region for its progressive language on SRHR, which includes a definition of sexual rights.
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(3150–0181), NEOB–10202, Office of Management and Budget, Washington, DC 20503.
Comments can also be e-mailed to firstname.lastname@example.org or submitted by telephone at (202) 395– 4638.
The acting NRC Clearance Officer is Tremaine Donnell, (301) 415–6258.
Dated at Rockville, Maryland, this 16th day of June 2009.
For the Nuclear Regulatory Commission.
Tremaine Donnell,
Acting NRC Clearance Officer, Office of Information Services.
[FR Doc. E9–14982 Filed 6–24–09; 8:45 am]
BILLING CODE 7590–01–P
OFFICE OF PERSONNEL MANAGEMENT
[OMB Control No. 3206–0197; Forms RI 38– 107 and RI 38–147]
Submission for OMB Review; Request for Review of a Revised Information Collection
AGENCY
: Office of Personnel
Management.
ACTION
: Notice.
SUMMARY: In accordance with the Paperwork Reduction Act of 1995 (Pub. L. 104–13, May 22, 1995), this notice announces that the Office of Personnel Management (OPM) has submitted to the Office of Management and Budget (OMB) a request for review of a revised information collection. ''Verification of Who is Getting Payments'' (OMB Control No. 3206–0197; Form RI 38– 107) is designed for use by the Retirement Inspection Branch when OPM, for any reason, must verify that the entitled person is indeed receiving the monies payable. ''Verification of Who is Getting Payments'' (OMB Control No. 3206–0197; Form RI 38– 147) collects the same information and is used by other groups within Retirement Services Program. Failure to collect this information would cause OPM to pay monies absent the assurance of a correct payee.
The number of respondents to RI 38– 107 is 25,000. The number of respondents to RI 38–147 is 400. We estimate it takes approximately 10 minutes to complete each form. The annual burden for RI 38–107 is 4,167 hours; the annual burden for RI 38–147 is 67 hours. The total burden is 4,234 hours.
For copies of this proposal, contact Cyrus S. Benson on (202) 606–4808, FAX (202) 606–0910 or via E-mail to email@example.com. Please include a mailing address with your request.
DATES: Comments on this proposal ADDRESSES:
should be received within 30 calendar days from the date of this publication. Send or deliver comments to—
James K. Freiert, Deputy Assistant Director, Retirement Services Program, Center for Retirement and Insurance Services, U.S. Office of Personnel Management, 1900 E Street, NW., Room 3305, Washington, DC 20415–3500; and
OPM Desk Officer, Office of Information & Regulatory Affairs, Office of Management and Budget, New Executive Office Building, 725 17th Street, NW., Room 10235, Washington, DC 20503.
FOR INFORMATION REGARDING ADMINISTRATIVE COORDINATION CONTACT:
Cyrus S. Benson, Team Leader, Publications Team, RIS Support Services/Support Group, U.S. Office of Personnel Management, 1900 E Street, NW., Room 4H28, Washington, DC 20415, (202) 606–0623.
U.S. Office of Personnel Management.
John Berry,
Director.
[FR Doc. E9–15020 Filed 6–24–09; 8:45 am]
BILLING CODE 6325–38–P
POSTAL REGULATORY COMMISSION
[Docket No. CP2009–38; Order No. 223]
Priority Mail Contract
AGENCY: Postal Regulatory Commission.
ACTION: Notice.
SUMMARY: The Commission is noticing a recently-filed Postal Service request to add an additional Priority Mail contract to the Competitive Product List. This notice addresses procedural steps associated with this filing.
DATES: Postal Service responses are due
June 23, 2009. Comments are due June
26, 2009.
ADDRESSES: Submit comments electronically via the Commission's Filing Online system at http:// www.prc.gov.
FOR FURTHER INFORMATION CONTACT: Stephen L. Sharfman, General Counsel, 202–789–6820 and firstname.lastname@example.org.
SUPPLEMENTARY INFORMATION:
I. Background
On June 11, 2009, the Postal Service filed a notice, pursuant to 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5, announcing that it has entered into an additional contract (Priority Mail
VerDate Nov<24>2008 16:25 Jun 24, 2009 Jkt 217001 PO 00000
Contract 12), which it contends fits within the previously proposed Priority Mail Contract Group product. 1 In support, the Postal Service filed the proposed contract and referenced Governors' Decision 09–6 filed in Docket No. MC2009–25. Id. at 1.
The Notice states that the ''contract differs from the contract filed as Priority Mail Contract 6 only in regards to negotiated prices and a difference in termination provisions.'' Id. at 2. In addition, it states that the contract is scheduled to become effective the day that the Commission issues all necessary regulatory approval. Id. at 1.
The instant contract. The Postal Service filed the instant contract pursuant to 39 U.S.C. 3632(b)(3) and 39 CFR 3015.5. It submitted the contract and supporting material under seal, and attached a redacted copy of the contract and certified statement required by 39 CFR 3015.5(c)(2) to the Notice. Id., Attachments A and B respectively.
The Postal Service maintains that the contract and related financial information, including the customer's name and the accompanying analyses that provide prices, terms, conditions, and financial projections should remain under seal. Id. at 2.
II. Notice of Filing
The Commission establishes Docket No. CP2009–38 for consideration of the matters related to the contract identified in the Postal Service's Notice.
The Notice does not expressly use the term functionally equivalent to describe proposed Priority Mail Contract 12. Instead, it appears to implicitly make that claim by distinguishing the instant contract from Priority Mail Contract 6, filed in Docket No. CP2009–30 as part of the proposed Priority Mail Contract Group. Id. at 2. As the Postal Service recognizes, the scope of the Priority Mail Contract Group product is currently pending before the Commission. To that end, it acknowledges that the Commission's decision in Docket No. MC2009–25 may have an impact on the sufficiency of the Postal Service's filings in this case. Id. at 1, n.1. Depending on the outcome of Docket No. MC2009–25, the Postal Service may need to file additional support as required in 39 CFR 3020 subpart B. Such filings, if any, shall be due within three days of the Commission's order in Docket No. MC2009–25 addressing the scope of the proposed Priority Mail Contract Group product.
1 Notice of Establishment of Rates and Class Not of General Applicability (Priority Mail Contract 12), June 11, 2009 (Notice).
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Interested persons may submit comments on whether the instant contract is consistent with the policies of 39 U.S.C. 3632, 3633, or 3642 and 39 CFR part 3015 and 39 CFR 3020, subpart B, and whether it should be classified within the Priority Mail Contract Group or as a separate product. Comments in this case are due no later than June 26, 2009.
The public portions of these filings can be accessed via the Commission's Web site (http://www.prc.gov).
The Commission appoints Paul L. Harrington to serve as Public Representative in this docket.
III. Supplementary Information
Pursuant to 39 CFR 3015.6, the Commission requests the Postal Service to provide the following supplemental information by June 23, 2009:
1. (a) Please explain the cost adjustments made to each contract;
(b) Explain the mailer activities or characteristics that:
(i) Yield cost savings to the Postal Service,
(ii) Impose additional costs on the Postal Service;
(c) Please address every instance where an NSA partner's cost differs from the average cost.
2. (a) Please provide a timeframe of when NSA partner volumes and cubic feet measurements were collected for each contract.
(b) Please provide a unit of analysis for volumes in each contract, e.g., whole numbers, thousands, etc.
3. In the Excel files accompanying the instant contract, unit transportation costs are hard coded (See tab: ''Partner Unit Cost'' rows 18 and 19). Please provide up-to-date sources and show all calculations.
IV. Ordering Paragraphs
It is Ordered:
1. The Commission establishes Docket No. CP2009–38 for consideration of the issues raised in this docket.
2. As discussed in this order, the Postal Service shall file supplemental information, if necessary, within three days of the Commission's order in Docket No. MC2009–25 addressing the scope of the proposed Priority Mail Contract Group product.
3. Comments by interested persons in these proceedings are due no later than June 26, 2009.
4. The Postal Service is to provide the information requested in section III of this order no later than June 23, 2009.
5. Pursuant to 39 U.S.C. 505, Paul L. Harrington is appointed to serve as officer of the Commission (Public Representative) to represent the
interests of the general public in these proceedings.
6. The Secretary shall arrange for publication of this order in the Federal Register.
By the Commission.
Steven W. Williams,
Secretary.
[FR Doc. E9–14926 Filed 6–24–09; 8:45 am]
BILLING CODE 7710–FW–P
SECURITIES AND EXCHANGE COMMISSION
[Release No. 34–60152]
Order Granting Application for Extension of a Temporary Conditional Exemption Pursuant to Section 36(a) of the Exchange Act by the International Securities Exchange, LLC Relating to the Ownership Interest of International Securities Exchange Holdings, Inc. in an Electronic Communications Network
June 19, 2009.
I. Introduction
On December 22, 2008, the Securities and Exchange Commission (''Commission'') approved a proposal filed by the International Securities Exchange, LLC (''ISE'' or ''Exchange'') in connection with corporate transactions (the ''Transactions'') in which, among other things, the parent company of ISE, International Securities Exchange Holdings, Inc. (''ISE Holdings''), purchased a 31.54% ownership interest in Direct Edge Holdings LLC (''Direct Edge''), the owner and operator of Direct Edge ECN (''DECN''), a registered broker-dealer and electronic communications network (''ECN''). 1 Following the closing of the Transactions (the ''Closing''), Direct Edge's wholly-owned subsidiary, Maple Merger Sub LLC (''Merger Sub'') began to operate a marketplace for the trading of U.S. cash equity securities by Equity Electronic Access Members of ISE (the ''Facility''), under ISE's rules and as a ''facility,'' as defined in Section 3(a)(2) of the Securities Exchange Act of 1934 (''Exchange Act''), 2 of ISE. 3
1 See Securities Exchange Act Release No. 59135 (December 22, 2008), 73 FR 79954 (December 30, 2008) (order approving File No. SR–ISE–2008–85).
2 15 U.S.C. 78c(a)(2).
3 Under Section 3(a)(2) of the Act, the term ''facility,'' when used with respect to an exchange, includes ''its premises, tangible or intangible property whether on the premises or not, any right to the use of such premises or property or any service thereof for the purpose of effecting or reporting a transaction on an exchange (including, among other things, any system of communication to or from the exchange, by ticker or otherwise,
VerDate Nov<24>2008 16:25 Jun 24, 2009 Jkt 217001
DECN, which operates as an ECN and submits its limit orders to the Facility for display and execution, is an affiliate of ISE through ISE Holdings' equity interest in DE Holdings. DECN also is a facility, as defined in Section 3(a)(2) of the Exchange Act, of ISE because it is an affiliate of ISE used for the purpose of effecting and reporting securities transactions. Because DECN is a facility of ISE, ISE, absent exemptive relief, would be obligated under Section 19(b) of the Exchange Act to file with the Commission proposed rules governing the operation of DECN's systems and subscriber fees.
On December 22, 2008, the Commission exercised its authority under Section 36 of the Exchange Act to grant ISE a temporary exemption, subject to certain conditions, from the requirements under Section 19(b) of the Exchange Act with respect to DECN's proposed rules. 4
On June 15, 2009, ISE filed with the Commission, pursuant to Rule 0–12 5 under the Exchange Act, an application under Section 36(a)(1) of the Exchange Act 6 to extend the relief granted in the Exemption Order for an additional 180 days, subject to certain conditions. 7 This order grants ISE's request for a temporary extension of the relief provided in the Exemption Order, subject to the satisfaction of certain conditions, which are outlined below.
II. Application for an Extension of the Temporary Conditional Exemption From the Section 19(b) Rule Filing Requirements
On June 15, 2009, ISE requested that the Commission exercise its authority under Section 36 of the Exchange Act to temporarily extend, subject to certain conditions, the temporary conditional exemption granted in the Exemption Order from the rule filing procedures of Section 19(b) of the Exchange Act in connection with ISE Holdings' equity ownership interest in DE Holdings and the continued operation of DECN as a facility of ISE. 8
The Exemption Request notes that on May 7, 2009, EDGA Exchange, Inc., and EDGX Exchange, Inc. (together, the
maintained by or with the consent of the exchange), and any right of the exchange to the use of any property or service.''
4 See Securities Exchange Act Release No. 59133 (December 22, 2008), 73 FR 79940 (December 30, 2008) (''Exemption Order'').
5 17 CFR 240.0–12.
6 15 U.S.C. 78mm(a)(1).
7 See letter from Michael J. Simon, General Counsel and Secretary, ISE, to Elizabeth M. Murphy, Secretary, Commission, dated June 15, 2009 (''Exemption Request'').
8 See Section 3(a)(2) of the Exchange Act, 15 U.S.C. 78c3(a)(2) (definition of ''facility'').
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Survey Response Report:
Tourism Impact Survey Northern BC Tourism Association
December 7, 2023 by
Table of Contents
Executive Summary
The following report summarises information collected in a survey by Northern BC Tourism Association (NBCTA) in collaboration with the BC Hotel Association related to the impact of the provincial Travel Order that was put in place at the end of summer 2023. The survey was designed to assess the immediate and long-term impacts on NBCTA stakeholders from crisis events in the summer of 2023, such as wildfires, poor air quality, road closures, the provincial State of Emergency, and the Travel Restriction Order.
On August 19, 2023, the Province of British Columbia introduced an order, effective August 19 until the end of the day on September 4, 2023, restricting people from travelling to stay in temporary accommodations for non-essential purposes in several Southern Interior communities.
The order was lifted four days later on August 23 (West Kelowna's order was lifted on August 24). However, the impacts of the order reached far beyond the original effective period. The announcement resulted in immediate cancellations of bookings for the effective period, which included the end of summer and the Labour Day long weekend. Some bookings for September and later in autumn were also cancelled.
Although it was expected that the majority of the impacts would be felt within the Thompson Okanagan region, NBCTA believed that the Northern BC region would have also been impacted. Consequently, the survey used for the Thompson Okanagan region was slightly modified and distributed to stakeholders in the Northern BC region.
This report incorporates and highlights responses from 26 respondents, submitted between October 20 and November 29.
Survey respondents shared the following:
Issues
* Most respondents (23 out of 26) reported wildfires as an event that caused an impact on their business.
* Travel restriction order was the last in importance; however, it was considered by nine respondents.
Impacts on Business Operations
* 22 out of 26 reported lost revenues
* 19 out of 26 experienced a negative perception from customers
* 13 out of 26 experienced reduced operations,
* 7 out of 26 experienced increased operational cost
* 4 out of 26 staffing change
* 2 out of 26 experienced increased marketing costs, and others
* Another two considered no impact
Impacts on Staffing
* Stress and mental health challenges were identified by 16 respondents as the main impact on employees;
* Loss of income was another important impact on employees considered by 14 respondents.
* Altogether, four respondents planned to have 29 staff scheduled to work in the summer. Of that number, five
(17%) scheduled staff members were laid off, and 14 (48%) staff members had reduced hours.
Impacts on Finances
* 16 respondents saw a decrease in revenue.
* Almost half of respondents (10) estimated a decrease in revenues between 1% and 40% during the closure period.
* Six respondents foresee a reduction in revenues for the next three months, three of them between 1%-20%.
* Twelve respondents who do not estimate a reduction feel unsure about the next three months.
* A respondent estimated a reduction of CAD 200,000.
Recommendations for Provincial and/or Federal Governments
* 16 out of 26 respondents recommended incentives to encourage travel;
* 15 out of 26 respondents recommended for financial support;
* 13 out of 26 respondents recommended increasing marketing campaigns by DBC, and/or communities;
* 8 out of 26 thought that wage subsidies and change to insurance coverage is helpful.
Other recommendations expressed by the respondents were:
* Looking forward to information on DriveBC to help with decision-making
* Finding partnerships with nations and companies that can fight the fires on their behalf
* Working with travel tools (such as Google Maps) to ensure accurate information is being distributed - "for weeks after our evacuation alert was lifted, Google Maps was still indicating road closures and trail closures."
* "Avoid issuing travel advisories unless necessary after lifting advisories, a significant campaign to encourage travel to resume should be undertaken"
Introduction
The following report summarises information collected in a survey by the Northern BC Tourism Association (NBCTA) in collaboration with the BC Hotel Association related to the impact of the provincial Travel Order that was put in place at the end of summer, 2023. The survey was designed to assess the immediate and long-term impacts on NBCTA stakeholders from crisis events in the summer of 2023, such as wildfires, poor air quality, road closures, the provincial State of Emergency, and the Travel Restriction Order.
Methodology
Symphony Tourism Services, on behalf of the Northern BC Tourism Association (NBCTA), created a survey at https://www.symphonytourismservices.com/survey/nbc with questions about contact information, company information, and the impacts of the different events in the last summer (see Appendix A).
This report incorporates and highlights responses from 26 respondents.
Responses
Section 1. Company Information
Community(ies) of Operation by Sub-Region
The 26 respondents represent businesses in the following communities. In several instances, respondents indicated having operations in more than one community.
* Burns Lake
* Northern Rockies Regional Municipality
* Charlie Lake
* Dawson Creek
* Dease Lake
* Doig River First Nation
* Fort St John
* Granisle
* Houston
* Jade City
* Muncho Lake
* Prince George
* Prophet River First Nation
* Smithers
* Southside - Ootsa Lake
* Terrace
* Tumbler Ridge
* Vanderhoof
* West Moberly First Nation
* Wonowon
Business Type
Of the respondents, eight were accommodation providers, seven were activity/attraction providers, and six were tourism organizations.
| Type of business | Number of respondents |
|---|---|
| Accommodation | 8 |
| Activity / Attraction | 7 |
| Tourism Organisation | 6 |
| Visitor Centre | 2 |
| Other | 2 |
| Association / Network | 1 |
Number of employees by business type (overall)
According to the size of the business by the number of employees, visitor centres had 255 employees, accommodation businesses had 114 employees, Other businesses operated with 77 employees. Activity/attraction businesses had 52 employees.
Months of operation:
20 respondents work year-round. All respondents operate between May and September, meaning these are the most significant months to generate revenue.
Ownership Type
Eight respondents were non-profit organizations, six were corporations, six were others, four were sole proprietors, and two were partnerships.
23 percent (23%) of respondents' businesses are women-owned, and 8% are youth-owned firms. There were no Indigenous-owned respondents.
Section 2. Impacts on business operations:
Issues that impacted businesses between June and September:
Most respondents (23 out of 26) considered wildfires the main issue last summer. Poor air quality was the second most important issue (18 out of 26) indicated by respondents.
Respondents shared that they experienced:
* "Many businesses were impacted by the Peacock Wildfire that started in July and is still considered an active fire."
* "At one time or another all the above have impacted the NRRM. Any fires or other events that close the highway have an immediate impact. We only have one road (Hwy 97) in and out of the region. Due to distance away, neighbouring communities sometimes provide incorrect information in the attempt to help."
* "One wildfire close to town. Poor air quality due to fires in surrounding communities. A lot of travellers use Dawson Creek as the start of their trip to Alaska, the fires between Fort St. John and Fort Nelson concerned a lot of people and some cancelled their trips. Dawson Creek is an evacuation hub, so we did have a lot of other communities evacuate to Dawson Creek and were looking for things to do, but with the air quality there were few options as it had to be indoor activities."
* "Pondosy Resort was closed early due to safety concerns of the wildfires in the direct vicinity on the resort. Months of income was lost."
* "The road being closed due to the wild fire impacted us but obviously couldn't be helped. What was the issue was two governments fighting over who should pay for things and lack of communication between different parties. One sign would say closed, another would say open, and the internet would say something else. The closed sign was before tourists turn off onto Hwy 37, then five minutes in there would be an open sign and nobody could check DriveBC, because there is no cell service or wifi coverage."
* "Because we were under evacuation order and alert for most of the summer we lost over 80% of our usual revenue"
* "The biggest impact was when they asked my clients (about 40 people at the time) to evacuate this summer due to wildfire. We weren't actually put on evacuation order, but as a precaution, the wildfire branch asked them to leave. This cost me thousands of dollars in revenue." "I also lost one boat and motor to fire on a remote lake, it burned up before it could be retrieved. Was not safe to go in and get it."
* "Another impact though was the rumours that we were closed because of wildfire, which kept people away even though we were open."
* "Tse'k'wa was placed under evacuation in summer 2023, forcing us to close and relocate our staff to work from home. Then, Fort St John was also placed under evacuation alert so our staff worked from home while preparing for evacuation. Throughout the summer, our stakeholder communities were placed under various evacuations and alerts, impacting our ability to coordinate cultural activities and programming."
* "Fewer tourists this whole spring and summer resulting in fewer visitors through the museum, in our archives, or spending money in our gift shop. Several school groups or camps cancelled due to wildfire situation, road closures, or poor air quality."
* "Highway 37 Little Blue River Closure - lost approximately 40% of income in August and September due to repeated highway closures. In early May 2023, lost 50% of income that month due to road washout at Durham Creek. Usually poor communication of highway openings is what causes travellers to cancel than the actual closure itself."
* "The Blue River fire caused me immense grief due to poor communication from the government agencies regarding road closures."
* "Our community was evacuated due to wildfire. Our business was affected by air quality, travel restrictions, and road closures."
* "Early spring wildfires; Fort St. John, Alaska Highway, Highway 29, Charlie Lake, and Alberta highways & communities highway closures & evacuation orders. To some degree we were continually affected all summer by poor air quality, some days very heavy smoke. The extreme drought affected the comfort of travellers as they did not want to become stranded somewhere in the event of fires. Hudson's Hope was still affected by the construction of the Site C dam, Highway 29 reconstruction. Long waits and numerous stops between Hudson's Hope & Alaska Highway. Hudson's Hope itself was just getting the town water supply back running, we had been under a boil water advisory for a long time which affected where travellers could obtain potable water."
* "A wildfire caused the evacuation of the community for 7 days in June. Every business in Tumbler Ridge was impacted."
* "From the middle of July we have been under an evacuation order or an alert. Both in July and in August, we had fire at the resort property line and would have lost structures if we were not there to protect."
* "The wildfire season began very early in the Northeast and on June 8th Tumbler Ridge was placed under an evacuation order. Our board and staff were in separate locations spread across Northern BC and Alberta. The order was lifted on the 16th and the museum reopened on the 18th. Despite working remotely as best we could, missing that week in June left us scrambling a little at a critical juncture for seasonal hiring, leaving us short staffed for the summer resulting in a need to scale back some of our programs. We were on alert for an additional two or three weeks and the marketing messaging going out from the community at the time said to please not come here. We believe this played a role in setting the tone for the summer. From the experiences of our own staff we feel the fires, alerts, and evacuations throughout the province left many BC residents not wanting or unable to travel.
* "With the additional fires popping up as the fire season progressed resulted in Tumbler Ridge also being severely impacted by smoke, reducing our outdoor operations."
* "Wildfires were reported within one km of our lodging. The town was evacuated and guests were forced from the house. After the fire moved directions and people came back to town, the town was put on alert until almost the summer's end. We had many cancellations and trips not filled."
* "I had to cancel a couple of events due to me not being able to be there due to my property and surrounding area being on fire."
* "Temporary Travel restrictions and the corresponding change in travel habits lead to many cancellations and an overall decrease in reservations. Google maps advised many travellers to avoid our region (North Eastern BC), months after travel restrictions had lifted."
* "Smoke was pretty bad through significant portions of the summer. We are an outdoor attraction, and it affects our attendance when air quality is so poor. It most definitely impacted attendance at our largest event in July."
* "The ESS is operated by the City of Fort St. John, as is the Visitor Centre. Many staff are trained to work in the ESS when it is in place, thus pulled from their regular duties at the Visitor Information Centre and other areas"
* "The hotels are along Hwy 16 to the West of Prince George. Anything impacting access to Prince George cuts us off. Guests couldn't travel through affected areas to come stay with us."
Impacts on business operations by type
Respondents were asked to provide information about the impacts of the wildfires and other events on their businesses.
The number of respondents who reported lost revenues was 22; 19 experienced a negative perception from customers, 13 experienced reduced operations, seven and four experienced increased operational cost and staffing changes, respectively, and two experienced increased marketing costs and others. Two of the respondents reported no impact on their business.
Respondents shared that they experienced:
* "We couldn't have scheduled guests for the mining part of our business come, and those who did we ended up having to take home a different way and costing us and the guests double the amount."
* "As a single-staff team, we had to redirect my time towards emergency preparedness instead of usual operations. Additionally, nearby impacted communities meant our usual support network was also focused on emergency response. Smoke impacted our ability to complete outdoor construction, extending our planned public closure. Finally, the encroaching fire impacted our ability to insure our newly constructed building."
* "Some workers could not attend work because of evacuation orders on their homes (outside of Fort St. John). Visitors were instructed not to visit Fort St. John due to fires, evacuation alerts in town, and evacuation orders out of town. This happened early in the season, leading to reduced numbers throughout the summer. Many staff worked extra hours or were pulled from their regular duties to cover the ESS when neighbouring communities were on evacuation order."
Section 3. Impacts on Staffing
Respondents were asked to provide specific information related to the impact of wildfires and other events that occurred last summer on staffing, including the number of staff planned to work, staff laid off, and staff with reduced hours in the same period of the event. Four responses were obtained for these questions.
Altogether, four respondents planned to have 29 staff planned to work in the summer season. Of that number, five members (17%) of staff planned were laid off, and 14 members (48%) of staff had reduced hours.
Other impacts of the wildfires and other events on employees
Stress and mental health challenges were identified by 16 (62%) respondents as the main impact on employees; 14 (54%) mentioned that loss of income was another important impact on employees.
Impacts on international workers
Respondents were asked to identify impacts on their international workers and indicated that foreign workers:
* "Some employers reported having to shorten hours, however, most of the impact was on the business who still had to have staff and pay wages despite a reduction in customers"
* "Reduced international workforce"
* "Government processes have slowed significantly since the start of the pandemic and there seems to be no hurry to allow things to catch up and process anything in a timely manner."
Impact on student workers
Respondents were asked to identify impacts on student workers and indicated that students:
* "Students thought poor air quality meant we should close and go home, but we had air purifiers in place and had to explain that we are a place people will seek information on what is happening, if we advertise certain hours, we need to do what we can to stick to them. Some were not impressed by this, but every precaution was taken."
* "Extra training in wildfire procedures. One student couldn't work for several days when he was under evacuation order. Making sure out of town interns would be able to evacuate if our city's alert changed to an evacuation order."
* "We had 2 full time seasonal student workers and would say that they were not affected directly as well as a seasonal assistant manager. It was difficult to plan and operate outside activities for the public. example: Our Corn Roast Fundraiser in September was a complete bust due to heavy smoke."
* "Our summer students hadn't started yet, but they were very concerned they wouldn't have jobs to come to for July. They suffered the same stress and mental health challenges as the rest of us."
* "hired less students"
* "Same as the rest of us - physical consequences of working in poor air quality (even with masks) and mental impacts (climate anxiety, general bummer)."
* "Student workers worked and were not impacted aside from being pulled from their regular duties and working overtime to cover the ESS throughout the season."
* "We couldn't get any college students to work in the busy summer because the wildfires disrupted their travel plans or they were needed for firefighting."
Section 4. Impacts on Finances
Impact on Revenues
Respondents were asked to describe the estimated financial impact on their businesses.
Sixteen respondents reported a revenue decrease. Almost half of respondents (10) estimated a decrease in revenues between 1% and 40% in the closure period. Six respondents foresee a reduction in revenues for the next three months, three of them between 1%-20%. 12 respondents who do not estimate a reduction feel unsure about the next three months. A respondent considered a reduction of CAD 200,000.
Ability to pay expenses for the next 30 days:
Respondents were asked about their ability to pay expenses in the next 30 days because of the summer events.
Four respondents are unsure about the possibility of paying any expenses. Two reported that they could pay only 1%-49% of their expenses, and six indicated they could pay 50-99%. Fourteen said they would be able to pay 100% of expenses.
Amount of debt incurred as a result of the wildfires and other summer events.
Nine respondents incurred debt; of these, one incurred debt of about CAD 250,000, three reported between CAD 20,000 and CAD 40,000, and five said their debt was less than CAD 10,000. Seventeen respondents incurred no debt.
Time to pay back the debt related to the wildfires
Of the 26 respondents, 18 (69%) reported that this issue does not apply to them. Of those who incurred debt, one reported it would take more than 12 months to repay, while three reported a repayment period of 6-12 months; four reported less than six months.
Section 5. Recommendations for Provincial and/or Federal Governments to Support Business as a result of the wildfires.
Respondents were asked to select ways in which Provincial and/or Federal governments could support their business as a result of the impact of the wildfires and other events.
The top recommendation made by 16 of the respondents was for incentives to encourage travel, followed by the recommendation for financial support that was made by 15 respondents. In the third position, 13 respondents recommended increasing marketing campaigns by DBC, and/or communities.Eight respondents recommended wage subsidies and changes to insurance coverage. Finally, seven recommended extensions of deadlines to repay COVID Small Business Loan(s), such as the Canada Emergency Business Account (CEBA).
Other Ways for the government to support business
Respondents shared the following recommendations of other ways for the government to support business:
* "It would have been great if the fire was put out. The air quality was terrible in Houston for many months and the back country was closed, impacting campers etc..."
* "Better communication methods so business can access information and so that agencies outside the community can better access information on a region. More looking forward information on DriveBC to help with decision making - right now generally just says when to expect the next update but having even an estimated time for opening during a road closure would be helpful. People may be willing to wait 24 hours but may not be willing to wait 48 for example. As it stands many turn around or agencies reroute because there is no estimate."
* "Marketing campaigns were halted, but this didn't help us financially much, but it is something we paid for that didn't happen. Travellers were worried about visiting and some cancelled trips"
* "78,486 hectares of land was burned this year in Cheslatta Carrier Nation traditional territory impacting the many economic activities that Cheslatta Carrier Nation is trying hard to succeed with. In the past 13 years, 355,961 hectares of land has burned in Cheslatta Carrier Nation traditional territory. The Province must increase its efforts to fight fires in central and northern BC or find partnerships with nations and
companies that can fight the fires on their behalf if places like Kelowna are of higher priority to them."
* "The governments could figure out better ways of communicating with each other. It all starts from the top down. Give proper info, contact, let the Yukon help when offered, and visa versa. Have better signage, increase cell and internet coverage."
* "Pay for our losses as we had 0 choices when evacuation order is implemented and alert tourists won't book"
* "Better estimation of when highways will reopen to communicate travel plan changes with tourists better."
* "Promote travel to the region. Support with fuel costs, keep highways well maintained so travellers can visit our region."
* "We don't have any suggestions for that. Difficult to know what exactly would make a difference"
* "This survey is a bit hard to answer from a local government perspective. I will forward this to local businesses who felt more of the impact. I appreciate what DBC is doing and I hope they will offer crisis communication training again in the new year for those of us who unfortunately were unable to attend the November sessions."
* "Working with travel tools (such as google maps) to ensure accurate information is being distributed - for weeks after our evacuation alert was lifted, Google Maps was still indicating road closures and trail closures."
* "Take into consideration the implications of evacuation alerts for all stakeholders and ensure that they are implemented in a timely manner. Rescinding alerts should also be considered in a timely fashion, as alerts are a big deterrent for tourists and they don't seem to always be warranted."
* "Proper reporting"
* "Avoid issuing travel advisories unless necessary after lifting advisories a significant campaign to encourage travel to resume should be undertaken"
* "We are reimbursed by the BC government for ESS services. The municipality is able to support the operation of the Visitor Information Centre at this time."
* "Extending the CEBA deadline would be a start. In general ensuring wildfires are extinguished as soon as possible is critical. I happen to know that forestry no longer has the man-power year-round for proper forest management as my dad did in the 60s and 70s. There are four employees in this area that is vastly covered in forest. That is absolutely unacceptable to manage forests properly, and they say so themselves."
Appendices
Appendix A - Survey Questions
* Indicates required
| Question | Question Type |
|---|---|
| Company Information ● Company Name * ● Community(ies) of Operation * ● Company website ● Number of employees * ● In what year was your company founded? * | Single line |
| ● Months of Operation* ○ Year Round; ○ January; ○ February; ○ March; ○ April; ○ May; ○ June; ○ July; ○ August; ○ September; ○ October; ○ November; ○ December; | Multiple checkboxes |
| Business Type ● Primary Type of Business * ● Secondary Type of Business ○ Accommodation; ○ Activity / Attraction; ○ Association / Network; ○ Event; ○ Food & Beverage; ○ Other; ○ Retail; ○ Tour Product; ○ Tourism Organization; ○ Transportation; ○ Visitor Centre; | Single Select |
| Ownership Types ● Ownership type ○ Sole proprietor; ○ Partnership; | Single select |
| ○ Corporation; ○ Non-profit Organization; ○ Other; ● Indigenous Owned Business ○ No; ○ Indigenous Tourism Company (51% or more); ○ Indigenous Related Company (50% or less); ○ Indigenous Non-Profit; ● Female Owned Business ○ Yes - 51% or more; ○ No; ● Youth (30 or under) Owned Business ○ Yes - 51% or more; ○ No; | |
|---|---|
| Description of Events | |
| Which of the following issues have impacted your business? ○ Wildfire ○ Poor Air Quality ○ Flood ○ Road closure ○ State of Emergency ○ Travel Restriction Order ○ Evacuation Order ○ Evacuation Alert ○ Other | ○ Multiple checkboxes |
| What other issues have impacted your business? | Multi-line text |
| Describe the details of the situation impacting your business. | Multi-line text |
| ○ Other (specify below) ○ Reduced operations ○ Closed early for the season ○ Permanently closed | |
|---|---|
| What other ways have the wildfires impacted your business operations? | Multi-line text |
| Staffing | |
| How many employees were you planning to have on staff for the entire summer (from May to September)? | Number |
| How many employees did you lay off because of wildfires? | Number |
| How many employees had their hours reduced because of the wildfires? | Number |
| What impacts did the wildfires (smoke, evacuation alerts and orders, etc.) have on your employees?* Check all that apply. ○ Loss of income ○ Loss of benefits ○ Stress and mental health challenges ○ Other | Multiple checkboxes |
| What other impacts has the travel order had on your employees? | Multi-line text |
| If you employ international workers, please describe how the wildfires impacted your international employees. | Multi-line text |
| If you employ student workers, please describe how the wildfires impacted student workers. | Multi-line text |
| Financial | |
| What is the estimated decrease in expected revenue (%) caused by the wildfire impacts from May to September (including bookings, reservations, and walk-ins)?* | Single select |
| Question | Question Type |
|---|---|
| What was the estimated decrease ($) in expected revenue for your business caused by the events indicated? | Single-line text |
| What is the estimated decrease in expected revenue (%) caused by the wildfires for the next three months (including bookings, reservations, and walk-ins)? | Single-line text |
| What is the estimated decrease in expected revenue (%) caused by the wildfires for the next three months (including bookings, reservations, and walk-ins)? | Single-line text |
| Please indicate your ability to pay your expenses for the next 30 days. ● Able to pay 100% of expenses; ● Able to pay 50-99% of expenses; ● Able to pay 1-49% of expenses; ● Unable to pay any of expenses; ● Unsure; | Single select |
| What amount of debt has your business incurred as a result of the wildfires? | Number |
| Please indicate your ability to pay your expenses for the next 30 days. ● Not applicable; ● Less than 3 months; ● 3-6 months; ● 6-12 months; ● More than 12 months; | Single select |
Recommendations
Please indicate which ways you would like the Provincial and/or
Federal governments to support your business as a result of the.
wildfires
* Financial support;
* Wage subsidies;
* Changes to Insurance coverage;
* Extension of deadlines to repay COVID Small Business Loan(s) such as Canada Emergency Business Account (CEBA);
* Increased Marketing campaign by Destination BC, TOTA, and/or communities;
Multiple checkboxes
2023-12-07 Survey Response Report:
Tourism Impact Survey Northern BC Tourism Association
| Question | Question Type |
|---|---|
| ● Incentives to encourage travel; | |
|
,
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Contact
GPS coordinates in degrees, minutes, seconds: Latitude 39°50'41"N - Longitude 9° 38'40"E (Dwelling)
Address
→ Time : 1h45'
→ Via Tortoli 42
08042 Bari Sardo
* Sea port Tortolì Arbatax
→ Tortolì, Province of Ogliastra, Sardinia, Italy
→ Distance : 9mi.
→ Time : 15'
* Airport Tortolì Arbatax
→ Tortolì, Province of Ogliastra, Sardinia,
Italy
→ Distance : 7,5mi.
→ Time : 10'
* Airport Olbia Costa Smeralda
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REQUEST FOR MAYORAL DECISION – MD1368
Title: Travel Provisions for Team London Visitor Welcome volunteers
Executive Summary:
Team London is a Mayoral programme which aims to make volunteering easier to do, easier to find out about and rewards and recognises the work of everyday Londoners, voluntary groups and charities.
The 2012 Olympic and Paralympic Games saw the profile of volunteers and volunteering raised substantially. The Team London Ambassadors, Games Makers and other volunteers were seen as a key part to the success of the Games.
As such, the GLA has worked quickly to maintain the enthusiasm and momentum behind volunteering, and to ensure the legacy is maximised. A key part of the Legacy Plan has been the redeployment of Team London Ambassadors at key locations across London during the summer months, to provide a visitor welcome.
The Mayor would like to support the Visitor Welcome volunteers by providing 550 volunteers and managers with free transport for their training and volunteering activities during the period of 1 st July to 31 August 2014.
The Mayor is requested to direct Transport for London ("TfL") to implement these travel arrangements, with the GLA reimbursing TfL for the cost of travel undertaken on National Rail services. TfL will reuse Oyster cards left over from the Team London Travel Ambassador programme from 2012..
Decision:
The Mayor is requested to approve the following:
- To direct TfL under sections 155 and 174 of the Greater London Authority Act 1999 to provide 550 Oyster cards to enable the Team London volunteers and managers to travel on the TfL Network and National Rail (where the Train Operating Companies accept Oyster) to their training day and volunteering at assigned venues during the period of 1 July to 31 August, and
- To delegate to TfL the necessary powers to deliver the proposals specified in the Direction under sections 30, 34 and 38 of that Act; and
- To approve the GLA providing a revenue grant of up to £7,730 to TfL pursuant to section 121 of the GLA Act to reimburse TfL for the cost of National Rail journeys taken using the Team London Oyster cards.
Mayor of London
I confirm that I do not have any disclosable pecuniary interests in the proposed decision, and take the decision in compliance with the Code of Conduct for elected Members of the Authority.
The above request has my approval.
Signature:
Date: 18 June 2014
1
PART I - NON-CONFIDENTIAL FACTS AND ADVICE TO THE MAYOR Decision required – supporting report
1. Introduction and background
1.1 Team London is the Mayor's volunteering programme designed to deliver a volunteering legacy for from the 2012 Games. During the summer 2013, circa 800 volunteers were mobilised through Team London Visitor Welcome programme. Feedback from visitors who had interacted with the Ambassadors results were overwhelmingly positive, with over 90% of those asked answering 'strongly agree' or 'agree' to questions regarding the friendliness and usefulness of ambassadors. The programme also directly supports the recent increase in tourism in London. Following experiences in 2013 and early 2014, as well as Ambassador feedback, the deployment has focussed on 9 locations, with a deployment over the busiest period requiring circa 550 newly equipped Ambassadors, who will better complement the deployment of Team London volunteers at other events such as Ride London and the Mayors Gigs programme.
1.2 It is proposed that the Visitor Welcome programme provides 550 volunteers and managers with free transport for their training day and volunteer activities during the period of 1 st July to 31 st August 2014.
1.3 TfL will therefore be asked to provide the volunteers and managers with Oyster cards with sufficient Pay As You Go credit to enable them to travel to carry out their Team London volunteer duties during the relevant period. TfL will use Oyster cards left over from the Team London Travel Ambassador programme from 2012. GLA has agreed to reimburse TfL for any travel the volunteers take on National Rail services.
1.4 In order to provide this, TfL the following must be put in place:
- Delegation of the GLA's powers under section 30 and 34 of the Greater London Authority Act 1999 ("the GLA Act"), to ensure TfL's activity is consistent with the promotion of social development in Greater London and is facilitative of and conducive to that purpose.
- A Direction from the Mayor to use those powers as noted above and to make budgetary provision in this regard, under the duty to direct the general level and structure of fraes under sections 155 and 174 of the GLA Act.
- To approve the GLA providing a revenue grant of up to £7,730 to TfL pursuant to section 121 of the GLA Act to reimburse TfL for the cost of National Rail journeys taken using the Team London Oyster cards.
1.5 Previous decisions relating to this matter: 2012: MD941, 2013: MD1232
2. Objectives and expected outcomes
2.1 The 550 Oyster cards will enable Team London Ambassadors free travel to attend:
- training throughout July, including new and existing manager training as well as site specific sessions
- over 3000 volunteering shifts to provide a visitor welcome at 9 of London's busiest locations July 24 – August 31 2014
3. Equality comments
3.1 Under section 149 of the Equality Act 2010, as public authorities, the Mayor and TfL must have 'due regard' to the need to eliminate unlawful discrimination, harassment and victimisation as well as to advance equality of opportunity and foster good relations between people who share a protected characteristic and those who do not. In addition, the Mayor has a duty to have due regard to the principle that there should be equality of opportunity for all people (see paragraph 4.1(a) below).
3.2 The Team London service plan was informed by an equalities impact assessment and was based on consultation with the sector and teams across the GLA to ensure that the plan contributes to all of the Mayors legal duties. Diversity (and more recently employment information) is collected when volunteers resister and is monitored to ensure that all Londoners have the opportunity to benefit from volunteering through Team London. Opportunities are ring fenced for unemployed volunteers who are provided training to get them into work, training and education.
4. Other considerations
Key Risks and Issues
4.1 The key risk is that volunteers are not provided with their Oyster cards in a timely fashion and therefore have to pay for their transportation. The request is sufficiently in advance of the deployment to enable the cards to be distributed prior to deployment.
Links to other Mayoral strategies and priorities
4.2 The Team London Service Plan sets out the Mayor's priorities for volunteering. Securing a legacy from the 2012 Olympic and Paralympic Games is a key Mayoral priority and accordingly one of the 4 key aims of the Service Plan is to capitalise on the 2012 volunteering programme. The Visitor Welcome initiative is listed as a key programme to help achieve that aim.
Impact assessments and Consultation
4.3 The GLA have consulted with TfL in accordance with s 155 of the GLA Act. This has involved officers from Team London liaising with TfL staff on the availability of the remaining Oyster cards, the estimated cost of the cards and the estimated proposed reimbursement to TfL for the cost of National Rail Journeys.
5. Financial comments
5.1 The total maximum estimated cost of this decision is estimated to be £36,810, of which £29,080 is the estimated amount that Transport for London will forgo in revenue by providing the 550 Oyster cards. The balance of £7,730 equates to the proposed GLA reimbursement to TfL for the costs of the National Rail journeys made using the Team London Oyster cards. It should be noted that final costs will be dependent upon the actual number of journeys that the volunteers take during the free travel period.
6.2 The GLA's reimbursement to TFL of £7,730 as detailed above will be funded from the Team London Programme budget for 2014-15 as approved by MD1341. All appropriate budget adjustments will be made. This will be made in the form of a revenue grant under s 155 of the GLA Act 1999.
3
6. Legal comments
6.1 The Team London volunteering programme falls within the Mayor's power in section 30 of the GLA Act to act on behalf of the GLA to do anything which he considers will further the promotion of social development in Greater London. Section 34 of the GLA Act allows the Mayor to do anything which is calculated to facilitate or is conducive or incidental to the exercise of any of his functions including those in section 30.
6.2 In formulating the proposals in respect of which this decision is sought officers have complied with the GLA's related statutory duties in sections 30 to 33 of the GLA Act and section 149 of the Equality Act 2010 to:
(a) pay due regard to the principle that there should be equality of opportunity for all people (further details on equalities are set out in section 3 above) and to the duty under section 149 of the 2010 Act to have due regard to the need to eliminate unlawful discrimination, harassment and victimisation as well as to advance equality of opportunity and foster good relations between people who share a protected characteristic and those who do not 1 .
(b) consider how the proposals will effect the health of persons in Greater London, health inequalities between persons living in Greater London, the achievement of sustainable development in the United Kingdom and climate change and its consequences. Further, the Mayor must exercise the power in such a way as to promote improvement in these areas; and
(c) consult with bodies or persons the GLA considers appropriate. GLA consulted with TfL to implement this proposal.
Direction and Delegation
6.3 Section 38 of the GLA Act provides that the Mayor may delegate the exercise of his section 30 and 34 functions to TfL. Section 38(7) of the GLA Act gives TfL the power to exercise any functions delegated to it by the Mayor pursuant to section 38, whether or not TfL would otherwise have had that power and irrespective of the nature of that function.
6.5 Section 155 of the GLA Act provides that the Mayor may give directions to TfL as to the manner in which TfL is to exercise its functions, or specific directions as to the exercise of its functions. Section 174 states that the Mayor must dives directions to TfL under that provision as to the general level and structure of fares.
6.6 The GLA Act requires that Delegations under section 38 and Directions under section 155 must be in writing. An Instrument of Direction and Delegation is attached as Annex A to this MD.
6.7 The powers contained in sections 30 and 34 of the GLA Act, which are to be delegated to TfL, are sufficient to enable TfL to do all things it considers necessary or expedient to undertake the activities specified in the attached Instrument. The power under section 34 is to do anything that is considered will facilitate, be conducive or incidental to things done under the powers in section 30.
6.8 The direction specifies the manner in which the TfL is to exercise its functions. To this end, TfL is to provide to Oyster cards for the 550 Team London volunteers to travel on the TfL Network and National Rail (where the Train Operating Companies accept Oyster) to their training day and
1 The protected characteristics and groups are: age, disability, gender reassignment, pregnancy and maternity, race, gender, religion or belief, sexual orientation and marriage/ civil partnership status.
volunteering at assigned venues during the relevant period. This is covered by sections 155 and 174 mentioned above.
Legal Authority to Transfer funds from the GLA to TfL
6.9 Section 121 of the GLA Act provides that the GLA may, with the consent of the Mayor, pay a grant towards meeting revenue expenditure incurred or to be incurred by TfL for the purposes of, or in connection with, the discharge of the TfL's functions. A grant under that section must not be made subject to any limitation in respect of the expenditure which it may be applied towards meeting (other than that the expenditure must not be expenditure for capital purposes). In addition TfL may only apply it for revenue purposes, which is the case here. The letter in Annex B to this MD sets out the Mayor's expectations for the use of the grant by TfL.
7. Investment & Performance Board
Stage 1 and 2 papers were discussed and approved in principle at the IPB on 28 March 2014, with expenditure approved in MD1341.
8. Planned delivery approach and next steps
| Activity | Timeline |
|---|---|
| Visitor Welcome | |
| Recruitment of new volunteers (completed) | Apr- 14 |
| Training of visitor welcome volunteers (underway) | May-14 – Jul-14 |
| Distribution of Oyster cards | June 14 (end of) – July 2014 |
| Deployment of volunteers at locations | 24 Jul-14 – 25 Aug- 14 |
| Review of programme | Sept-14 |
Appendices and supporting papers:
- Annex A: Instrument of Direction and Delegation
- Annex B: Letter of consent to transfer
Public access to information
Information in this form (Part 1) is subject to the Freedom of Information Act 2000 (FOI Act) and will be made available on the GLA website within one working day of approval.
If immediate publication risks compromising the implementation of the decision (for example, to complete a procurement process), it can be deferred until a specific date. Deferral periods should be kept to the shortest length strictly necessary. Note: This form (Part 1) will either be published within one working day after approval or on the defer date.
Part 1 Deferral:
Is the publication of Part 1 of this approval to be deferred? NO
If YES, for what reason:
Until what date: (a date is required if deferring)
Part 2 Confidentiality: Only the facts or advice considered to be exempt from disclosure under the FOI Act should be in the separate Part 2 form, together with the legal rationale for non-publication.
Is there a part 2 form – NO
EXECUTIVE DIRECTOR, RESOURCES:
I confirm that financial and legal implications have been appropriately considered in the preparation of this report.
Signature
Date
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