Section 571.5. Matter incorporated by reference.
49 CFR § 571.5 - Matter incorporated by reference.
§ 571.5 Matter incorporated by reference.
(a) Certain material is incorporated by reference into this part with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in this section, the National Highway Traffic Safety Administration (NHTSA) must publish notice of change in the Federal Register and the material must be available to the public. All approved material is available for inspection at NHTSA, 1200 New Jersey Avenue SE., Washington, DC 20590, and at the National Archives and Records Administration (NARA). For information on the availability of this material at NHTSA, or if you experience difficulty obtaining the standards referenced below, contact NHTSA Office of Technical Information Services, phone number (202) 366-2588. For information on the availability of this material at NARA, call (202) 741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.
(b) American Association of Textile Chemists and Colorists (AATCC), 1 Davis Dr., P.O. Box 12215, Research Triangle Park, NC 27709. Web site: http://www.aatcc.org.
(1) AATCC Test Method 30-1981, “Fungicides, Evaluation on Textiles: Mildew and Rot Resistance of Textiles,” into § 571.209.
(2) AATCC Gray Scale for Evaluating Change in Color into §§ 571.209; 571.213.
(c) American National Standards Institute (ANSI), 1899 L St., NW., 11th floor, Washington, DC 20036. Telephone: (202) 293-8020; Fax: (202) 293-9287; Web site: http://www.ansi.org. Copies of ANSI/RESNA Standard WC/Vol.1-1998 Section 13 may also be obtained from Rehabilitation Engineering and Assistive Technology Society of North America (RESNA), 1700 North Moore St., Suite 1540, Arlington, VA 22209-1903. Telephone: (703) 524-6686; Web site http://www.resna.org.
(1) ANSI S1.11-2004, “Specification for Octave-Band and Fractional-Octave-Band Analog and Digital Filters,” approved February 19, 2004, into § 571.141.
(2) ANSI Z26.1-1977, “Safety Code for Safety Glazing Materials for Glazing Motor Vehicles Operating on Land Highways,” approved January 26, 1977, into § 571.205(a).
(3) ANSI Z26.1a-1980, “Safety Code for Safety Glazing Materials for Glazing Motor Vehicles Operating on Land Highways,” approved July 3, 1980, into § 571.205(a).
(4) ANSI/SAE Z26.1-1996, “American National Standard for Safety Glazing Materials for Glazing Motor Vehicles and Motor Vehicle Equipment Operating on Land Highways-Safety Standard,” approved August 11, 1997, into § 571.205.
(5) ANSI/RESNA Standard WC/Vol. 1-1998, Section 13, “Wheelchairs: Determination of Coefficient of Friction of Test Surfaces,” into § 571.403.
(d) ASTM International, 100 Barr Harbor Drive, PO Box C700, West Conshohocken, PA 19428-2959. Telephone: (610) 832-9500; Fax (610) 832-9555; Web site: http://www.astm.org.
(1) 1985 Annual Book of ASTM Standards, Vol. 05.04, “Test Methods for Rating Motor, Diesel, Aviation Fuels, A2. Reference Materials and Blending Accessories, (“ASTM Motor Fuels section”),” A2.3.2, A2.3.3, and A2.7, into §§ 571.108; 571.205(a).
(2) ASTM B117-64, “Standard Method of Salt Spray (Fog) Testing,” revised 1964, into § 571.125.
(3) ASTM B117-73 (Reapproved 1979), “Standard Method of Salt Spray (Fog) Testing,” approved March 29, 1973, into §§ 571.108; 571.209.
(4) ASTM B117-97, “Standard Practice for Operating Salt Spray (Fog) Apparatus,” approved April 10, 1997, into § 571.403.
(5) ASTM B117-03, “Standard Practice for Operating Salt Spray (Fog) Apparatus,” approved October 1, 2003, into §§ 571.106; 571.111.
(6) ASTM B456-79, “Standard Specification for Electrodeposited Coatings of Copper Plus Nickel Plus Chromium and Nickel Plus Chromium,” approved January 26, 1979, into § 571.209.
(7) ASTM B456-95, “Standard Specification for Electrodeposited Coatings of Copper Plus Nickel Plus Chromium and Nickel Plus Chromium,” approved October 10, 1995, into § 571.403.
(8) ASTM C150-56, “Standard Specification for Portland Cement,” approved 1956, into § 571.108.
(9) ASTM C150-77, “Standard Specification for Portland Cement,” approved February 26, 1977, into § 571.108.
(10) ASTM D362-84, “Standard Specification for Industrial Grade Toluene,” approved March 30, 1984, into §§ 571.108; 571.205(a).
(11) ASTM D445-65, “Standard Method of Test for Viscosity of Transparent and Opaque Liquids (Kinematic and Dynamic Viscosities),” approved August 31, 1965, into § 571.116.
(12) ASTM D471-98, “Standard Test Method for Rubber Property - Effect of Liquids,” approved November 10, 1998, into § 571.106.
(13) ASTM D484-71, “Standard Specification for Hydrocarbon Drycleaning Solvents,” effective September 15, 1971, into § 571.301.
(14) ASTM D756-78, “Standard Practice for Determination of Weight and Shape Changes of Plastics under Accelerated Service Conditions,” approved July 28, 1978, into § 571.209.
(15) ASTM D1003-92, “Standard Test Method for Haze and Luminous Transmittance of Transparent Plastics,” approved October 15, 1992, into § 571.108.
(16) ASTM D1056-07, “Standard Specification for Flexible Cellular Materials - Sponge or Expanded Rubber,” approved March 1, 2007, into § 571.213.
(17) ASTM D1121-67, “Standard Method of Test for Reserve Alkalinity of Engine Antifreezes and Antirusts,” accepted June 12, 1967, into § 571.116.
(18) ASTM D1123-59, “Standard Method of Test for Water in Concentrated Engine Antifreezes by the Iodine Reagent Method,” revised 1959, into § 571.116.
(19) ASTM D1193-70, “Standard Specification for Reagent Water,” effective October 2, 1970, into § 571.116.
(20) ASTM D1415-68, “Standard Method of Test for International Hardness of Vulcanized Natural and Synthetic Rubbers,” accepted February 14, 1968, into § 571.116.
(21) ASTM D2515-66, “Standard Specification for Kinematic Glass Viscometers,” adopted 1966, into § 571.116.
(22) ASTM D4329-99, “Standard Practice for Fluorescent UV Exposure of Plastics,” approved January 10, 1999, into § 571.106.
(23) ASTM D4956-90, “Standard Specification for Retroreflective Sheeting for Traffic Control,” approved October 26, 1990, into § 571.108.
(24) ASTM E1-68, “Standard Specifications for ASTM Thermometers” (including tentative revisions), accepted September 13, 1968, into § 571.116.
(25) ASTM E4-79, “Standard Methods of Load Verification of Testing Machines,” approved June 11, 1979, into § 571.209.
(26) ASTM E4-03, “Standard Practices for Force Verification of Testing Machines,” approved August 10, 2003, into § 571.106.
(27) ASTM E8-89, “Standard Test Methods of Tension Testing of Metallic Materials,” approved May 15, 1989, into § 571.221.
(28) ASTM E77-66, “Standard Method for Inspection, Test, and Standardization of Etched-Stem Liquid-in-Glass Thermometers,” revised 1966, into § 571.116.
(29) ASTM E274-65T, “Tentative Method of Test for Skid Resistance of Pavements Using a Two-Wheel Trailer,” issued 1965, into §§ 571.208; 571.301.
(30) ASTM E274-70, “Standard Method of Test for Skid Resistance of Paved Surfaces Using a Full-Scale Tire,” revised July 1974, into §§ 571.105; 571.122a.
(31) ASTM E298-68, “Standard Methods for Assay of Organic Peroxides,” effective September 13, 1968, into § 571.116.
(32) ASTM E308-66, “Standard Practice for Spectrophotometry and Description of Color in CIE 1931 System,” reapproved 1981, into § 571.108.
(33) ASTM E1136-93 (Reapproved 2003), “Standard Specification for a Radial Standard Reference Test Tire,” approved March 15, 1993, into §§ 571.105; 571.121; 571.122; 571.126; 571.135; 571.136; 571.139; 571.500.
(34) ASTM E1337-90 (Reapproved 2008), “Standard Test Method for Determining Longitudinal Peak Braking Coefficient of Paved Surfaces Using a Standard Reference Test Tire,” approved June 1, 2008, into §§ 571.105; 571.121; 571.122; 571.126; 571.135; 571.136; 571.500.
(35) ASTM F1805-00, “Standard Test Method for Single Wheel Driving Traction in a Straight Line on Snow- and Ice-Covered Surfaces,” approved November 10, 2000, into § 571.139.
(36) ASTM G23-81, “Standard Practice for Generating Light-Exposure Apparatus (Carbon-Arc Type) With and Without Water for Exposure of Nonmetallic Materials,” approved March 26, 1981, into § 571.209.
(37) ASTM G151-97, “Standard Practice for Exposing Nonmetallic Materials in Accelerated Test Devices that Use Laboratory Light Sources,” approved July 10, 1997, into § 571.106.
(38) ASTM G154-00, “Standard Practice for Operating Fluorescent Light Apparatus for UV Exposure of Nonmetallic Materials,” approved February 10, 2000, into § 571.106.
(e)Department of Defense, DODSSP Standardization Document Order Desk, 700 Robbins Ave., Philadelphia, PA 19111-5098. Web site: http://dodssp.daps.dla.mil/.
(1) MIL-S-13192, “Military Specification, Shoes, Men's, Dress, Oxford,” October 30, 1976, into § 571.214.
(2) MIL-S-13192P, “Military Specification, Shoes, Men's, Dress, Oxford,” 1988, including Amendment 1, October 14, 1994, into § 571.208.
(3) MIL-S-21711E, “Military Specification, Shoes, Women's,” 3 December 1982, including Amendment 2, October 14, 1994, into §§ 571.208; 571.214.
(f)General Services Administration (GSA), Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402. Telephone: (202) 512-1800; Web site: http://www.gsa.gov.
(1) GSA Federal Specification L-S-300, “Sheeting and Tape, Reflective; Nonexposed Lens, Adhesive Backing,” September 7, 1965, into § 571.108.
(g) Illuminating Engineering Society of North America (IES), 120 Wall St., 7th Floor, New York, NY 10005-4001. Telephone: (212) 248-5000; Web site: http://www.iesna.org.
(1) IES LM 45, “IES Approved Method for Electrical and Photometric Measurements of General Service Incandescent Filament Lamps,” approved April 1980, into § 571.108.
(h) International Commission on Illumination (CIE), CIE Central Bureau, Kegelgasse 27, A-1030 Vienna, Austria. http://www.cie.co.at.
(1) CIE 1931 Chromaticity Diagram, developed 1931, into § 571.108.
(i) International Organization for Standardization (ISO), 1, ch. de la Voie-Creuse, CP 56, CH-1211 Geneva 20, Switzerland. Telephone: + 41 22 749 01 11. Fax: + 41 22 733 34 30. Web site: http://www.iso.org/.
(1) ISO 7117:1995(E), “Motorcycles - Measurement of maximum speed,” Second edition, March 1, 1995, into § 571.122.
(2) ISO 10844:1994(E) “Acoustics - Test Surface for Road Vehicle Noise Measurements,” First edition, 1994-09-01, into § 571.141.
(3) ISO 10844: 2011(E) “Acoustics - Specification of test tracks for measuring noise emitted by road vehicles and their tyres,” Second edition, 2011-02-01 into § 571.141.
(4) ISO 10844: 2014(E) “Acoustics - Specification of test tracks for measuring noise emitted by road vehicles and their tyres,” Third edition, 2014-05-15 into § 571.141.
(j) National Center for Health Statistics, Centers for Disease Control (CDC), National Division for Health Statistics, Division of Data Services, Hyattsville, MD 20782. Telephone: 1 (800) 232-4636. Web site: http://www.cdc.gov/nchs.
(1) DHEW Publication No. (HRA) 76-1074, “Weight, Height, and Selected Body Dimensions of Adults: United States - 1960-1962,” first published as Public Health Service Publication No. 1000 Series 11-No. 8, June 1965, into § 571.3.
(k)National Highway Traffic Safety Administration (NHTSA), 1200 New Jersey Ave. SE., Washington, DC 20590. Web site: http://www.nhtsa.gov.
(1) Drawing Package, “NHTSA Standard Seat Assembly; FMVSS No. 213, No. NHTSA-213-2003,” (consisting of drawings and a bill of materials), June 3, 2003, into § 571.213.
(2) Drawing Package, SAS-100-1000, Standard Seat Belt Assembly with Addendum A, Seat Base Weldment (consisting of drawings and a bill of materials), October 23, 1998, into § 571.213.
(3) “Parts List; Ejection Mitigation Headform Drawing Package,” December 2010, into § 571.226.
(4) “Parts List and Drawings; Ejection Mitigation Headform Drawing Package” December 2010, into § 571.226.
(l) SAE International, 400 Commonwealth Drive, Warrendale, PA 15096. Telephone: (724) 776-4841; Web site: http://www.sae.org.
(1) SAE Recommended Practice J100-1995, “Class ‘A’ Vehicle Glazing Shade Bands,” revised June 1995, into § 571.205.
(2) SAE Recommended Practice J211a, “Instrumentation for Impact Tests,” revised December 1971, into § 571.222.
(3) SAE Recommended Practice J211, “Instrumentation for Impact Tests,” revised June 1980, into §§ 571.213; 571.218.
(4) SAE Recommended Practice J211/1, revised March 1995, “Instrumentation for Impact Test - Part 1 - Electronic Instrumentation” into §§ 571.202a; 571.208; 571.218; 571.403.
(5) SAE Recommended Practice J211-1 DEC2003, “Instrumentation for Impact Test - Part 1 - Electronic Instrumentation,” revised December 2003, into §§ 571.206; 571.209.
(6) SAE Recommended Practice J227a, “Electric Vehicle Test Procedure,” revised February 1976, into §§ 571.105; 571.135.
(7) SAE Standard J527a, “Brazed Double Wall Low Carbon Steel Tubing,” revised May 1967, into § 571.116.
(8) SAE Recommended Practice J567b, “Bulb Sockets,” revised April 1964, into § 571.108.
(9) SAE Recommended Practice J573d, “Lamp Bulbs and Sealed Units,” revised December 1968, into § 571.108.
(10) SAE Recommended Practice J575-1983, “Tests for Motor Vehicle Lighting Devices and Components,” revised July 1983, into § 571.131.
(11) SAE Recommended Practice J578, “Color Specification,” revised May 1988, into § 571.131.
(12) SAE Recommended Practice J578-1995, “Color Specification,” revised June 1995, into § 571.403.
(13) SAE Recommended Practice J592 JUN92, “Clearance, Side Marker, and Identification Lamps,” revised June 1992, into § 571.121.
(14) SAE Recommended Practice J592e-1972, “Clearance, Side Marker, and Identification Lamps,” revised July 1972, into § 571.121.
(15) SAE Recommended Practice J602-1963, “Headlamp Aiming Device for Mechanically Aimable Sealed Beam Headlamp Units,” reaffirmed August 1963, into § 571.108.
(16) SAE Recommended Practice J602-1980, “Headlamp Aiming Device for Mechanically Aimable Sealed Beam Headlamp Units,” revised October 1980, into § 571.108.
(17) SAE Recommended Practice J673a, “Automotive Glazing,” revised August 1967, into § 571.205(a).
(18) SAE Recommended Practice J673, “Automotive Safety Glasses,” revised April 1993, into § 571.205.
(19) SAE Recommended Practice J726 SEP79, “Air Cleaner Test Code,” revised April 1979, into § 571.209.
(20) SAE Recommended Practice J759 JAN95, “Lighting Identification Code,” revised January 1995, into § 571.121.
(21) SAE Standard J787b, “Motor Vehicle Seat Belt Anchorage,” revised September 1966, into § 571.3.
(22) SAE Recommended Practice J800c, “Motor Vehicle Seat Belt Assembly Installations,” revised November 1973, into § 571.209.
(23) SAE Standard J826-1980, “Devices for Use in Defining and Measuring Vehicle Seating Accommodation,” revised April 1980, into §§ 571.208; 571.214.
(24) SAE Standard J826 MAY87, “Devices for Use in Defining and Measuring Vehicle Seating Accommodation,” revised May 1987, into §§ 571.3; 571.210.
(25) SAE Standard J826-1992, “Devices for Use in Defining and Measuring Vehicle Seating Accommodation,” revised June 1992, into § 571.225.
(26) SAE Standard J826 JUL95, “Devices for Use in Defining and Measuring Vehicle Seating Accommodation,” revised July 1995, into §§ 571.10; 571.111; 571.202; 571.202a; 571.216a.
(27) SAE Recommended Practice J839b, “Passenger Car Side Door Latch Systems,” revised May 1965, into § 571.201.
(28) SAE Recommended Practice J839-1991, “Passenger Car Side Door Latch Systems,” revised June 1991, into § 571.206.
(29) SAE Recommended Practice J902, “Passenger Car Windshield Defrosting Systems,” revised August 1964, into § 571.103.
(30) SAE Recommended Practice J902a, “Passenger Car Windshield Defrosting Systems,” revised March 1967 (Editorial change June 1967), into § 571.103.
(31) SAE Recommended Practice J903a, “Passenger Car Windshield Wiper Systems,” revised May 1966, into § 571.104.
(32) SAE Recommended Practice J921, “Instrument Panel Laboratory Impact Test Procedure,” approved June 1965, into § 571.201.
(33) SAE Recommended Practice J941, “Passenger Car Driver's Eye Range,” approved November 1965, into § 571.104.
(34) SAE Recommended Practice J941b, “Motor Vehicle Driver's Eye Range,” revised February 1969, into § 571.108.
(35) SAE Recommended Practice J942, “Passenger Car Windshield Washer Systems,” approved November 1965, into § 571.104.
(36) SAE Recommended Practice J944 JUN80, “Steering Control System - Passenger Car - Laboratory Test Procedure,” revised June 1980, into § 571.203.
(37) SAE Standard J964 OCT84, “Test Procedure for Determining Reflectivity of Rear View Mirrors,” reaffirmed October 1984, into § 571.111.
(38) SAE Recommended Practice J972, “Moving Rigid Barrier Collision Tests,” revised May 2000, into § 571.105.
(39) SAE Recommended Practice J977, “Instrumentation for Laboratory Impact Tests,” approved November 1966, into § 571.201.
(40) SAE Recommended Practice J1100a, “Motor Vehicle Dimensions,” revised September 1975, into § 571.3.
(41) SAE Recommended Practice J1100 JUN84, “Motor Vehicle Dimensions,” revised June 1984, into §§ 571.3; 571.210.
(42) SAE Recommended Practice J1100-1993, “Motor Vehicle Dimensions,” revised June 1993, into § 571.225.
(43) SAE Recommended Practice J1100, “Motor Vehicle Dimensions,” revised February 2001, into § 571.3.
(44) SAE Recommended Practice J1133, “School Bus Stop Arm,” revised April 1984, into § 571.131.
(45) SAE Standard J1703b, “Motor Vehicle Brake Fluid,” revised July 1970, into § 571.116.
(46) SAE Standard J1703 NOV83, “Motor Vehicle Brake Fluid,” revised November 1983, into § 571.116.
(47) SAE RM-66-04, “Compatibility Fluid,” Appendix B to SAE Standard J1703 JAN95, “Motor Vehicle Brake Fluid,” revised January 1995, into §§ 571.106; 571.116.
(48) SAE Recommended Practice J2009, “Discharge Forward Lighting Systems,” revised February 1993, into § 571.108.
(49) SAE Standard J2889-1, “Measurement of Minimum Noise Emitted by Road Vehicles,” December 2014 into § 571.141.
(50) SAE Aerospace-Automotive Drawing Standards, issued September 1963, into §§ 571.104; 571.202.
(m)United Nations Economic Commission for Europe (UNECE), United Nations, Conference Services Division, Distribution and Sales Section, Office C.115-1, Palais des Nations, CH-1211, Geneva 10, Switzerland. Web site: www.unece.org/trans/main/wp29/wp29regs.html.
(1) UNECE Regulation 17 “Uniform Provisions Concerning the Approval of Vehicles with Regard to the Seats, their Anchorages and Any Head Restraints”: ECE 17 Rev. 1/Add. 16/Rev. 4 (July 31, 2002), into § 571.202.
(2) UNECE Regulation 48 “Uniform Provisions Concerning the Approval of Vehicles With Regard to the Installation of Lighting and Light-Signaling Devices,” E/ECE/324-E/ECE/TRANS/505, Rev.1/Add.47/Rev.1/Corr.2 (February 26, 1996), into § 571.108.


Abstract: The National Popular Vote (NPV) plan is the latest in a long line of schemes designed to replace the Electoral College. Imbued with the ideals of this nation’s Founders, the Electoral College has proved itself to be both effective in providing orderly elections for President and resilient in allowing a stable transfer of power of the leadership of the world’s greatest democracy. Therefore, while it would be a mistake to replace the Electoral College, replacing this system with the NPV would be a disaster. The NPV would devalue the minority interests that the Founders sought to protect, create electoral administrative problems, encourage voter fraud, and radicalize the U.S. political system. It also would likely violate the U.S. Constitution’s Compact Clause while directly contravening the Founders’ view of federalism and a representative republic. In an age of perceived political dysfunction, effective policies already in place—especially successful policies established by this nation’s Founders, such as the Electoral College—should be preserved.
Our system for electing a president has worked pretty well. There is no real case being made that it will work better if changed—only that it will look nicer if one subscribes to one particular vision of how democracies should work.…We are so accustomed to stable, generally good government that we sometimes forget that failure of government structures is historically much more common than success.…[W]e tinker with our success at our peril.
Since the 2000 U.S. presidential election, there have been many ill-informed calls to abolish the Electoral College. Even before that contentious election, there had been more than 700 proposals introduced in Congress to amend the Constitution to change the Electoral College—more than on any other topic.
The NPV plan also strikes at the Founders' view of federalism and a representative republic—one in which popular sovereignty is balanced by structural protections for state governments and minority interests.
The Constitution provides that “Each State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors, equal to the whole Number of Senators and Representatives to which the State may be entitled in the Congress.” Although electors were initially appointed directly by state legislatures, some states like Pennsylvania and Virginia allowed popular election even in the first presidential election.
By 1836, only South Carolina did not provide for the direct election of electors, and “since the Civil War, electors have been popularly chosen in all states.” The slate of electors chosen by voters then cast their votes for President and Vice President in their respective states on the first Monday after the second Wednesday in December. Forty-eight states have a winner-take-all system that allocates all of their electoral votes to whatever presidential candidate wins the popular vote in that state.
Changing or eliminating the Electoral College can be accomplished only by an amendment to the Constitution, which requires the consent of two-thirds of Congress and three-fourths of the states. From a political standpoint, there is almost no probability that such an amendment will be approved in the near future.
This agreement would go into effect only after “states cumulatively possessing a majority of the electoral votes” needed to win an election (270 votes) join the purported compact. Because it is far easier politically to get a smaller number of states with the required electoral votes to join the compact than it is to get two-thirds of Congress and three-fourths of the states to pass an amendment, the compact is an expedient way for proponents of the NPV to circumvent the Electoral College without formally amending the Constitution.
So far, eight states representing a combined 132 electoral votes (Illinois, Washington, New Jersey, Hawaii, Maryland, Vermont, California, and Massachusetts) and the District of Columbia have approved the proposed scheme. The NPV is therefore 49 percent of the way to the goal of 270 votes—and to the activation of this unconstitutional, politically dubious, and dangerous cartel.
In creating the basic architecture of the American government, the Founders struggled to satisfy each state’s demand for greater representation while attempting to balance popular sovereignty against the risk posed to the minority from majoritarian rule. Smaller states in particular worried that a system that apportioned representatives on the basis of population would underrepresent their interests in the federal structure.
Out of this concern arose a compromise proposed by the Committee of Eleven at the Constitutional Convention, which helped to balance the competing interests of large states with those of smaller states. By allocating electors on the basis of a state’s cumulative representation in the House and Senate, the Electoral College system avoids purely population-based representation but still gives larger states greater electoral weight.
The unequal apportionment among the states of House districts caused by the inclusion of large numbers of ineligible voters (such as non-citizens) in the census count.
We should also not forget that one of the major purposes of the Bill of Rights is to protect us from majoritarian rule—otherwise, popular democracy could abolish freedom of religion, limit political speech, or restrict the ability to assemble and associate with unfavored minorities. The NPV movement seeks to create an unfair and unconstitutional system that diminishes the voting rights of citizens throughout the country and raises the prospect of increased voter fraud and post-election litigation contests over the outcome.
The Constitution’s Compact Clause provides that “No State shall, without the Consent of Congress…enter into any Agreement or Compact with another State.” The Founders created the Compact Clause because they feared that compacting states would threaten the supremacy of the federal government in matters of foreign affairs and relations among the states. If states could make agreements among themselves, they could damage the nation’s federalist structure. Populist states, for example, cannot agree to have their U.S. Senators vote to seat only one Senator from a less populous state.
The very purpose of this clause was to prevent a handful of states from combining to overturn an essential part of the constitutional design. The plain text makes it clear that all such state compacts must be approved by Congress.
By circumventing the checks and balances of Congress, the NPV would risk setting a precedent that states can validate non–congressionally approved compacts as a substitute for a constitutional amendment. Undoubtedly, many liberal activist groups would like to create their own compacts or to lobby states individually to join compacts. Such compacts could then create de facto constitutional amendments regarding many different public policy issues—including purely federal matters.
Even though the plain text of the Constitution makes it clear that no compact shall be made by states without the consent of Congress, courts have recognized certain narrow agreements as exceptions to the limitations of the Compact Clause. Interstate compacts that governed boundary disputes between states were almost always upheld as valid. Although states sometimes did submit their compacts to Congress for ratification, there has been an implied understanding that interstate agreements were legitimate as long as they had a limited, specifically local impact and did not affect national prerogatives.
In the 1920s, interstate compacts expanded their scope and began to establish regulatory agencies. As the 20th century progressed, compacts were increasingly used to tackle broader issues facing the states. Modern interstate compacts can govern everything from environmental issues to water conservation, waste disposal, education, child welfare, crime control, and others—if approved by Congress.
Should the NPV movement reach its target of 270 electoral votes, states not involved in the compact will have been co-opted into an electoral regime despite having never consented to the compact. This distinction delineates this compact from others, which have dealt with even arguably national issues.
The Unconstitutionality of the NPV: U.S. Steel Corp.
The compacting states cannot withdraw from the agreement at any time.
Unless approved by Congress, a violation of any one of these three prongs is sufficient to strike down a compact as unconstitutional; the NPV plan violates two. Of course, congressional approval of a compact that attempts to change a provision of the Constitution without following the amendment requirement of Article V would also be invalid.
By eliminating the requirement that Congress approve a virtual constitutional amendment, the NPV would enhance the power of certain states at the expense of the national government—a result that would conflict with the first prong of the U.S. Steel Corp. test. Without question, the NPV deprives non-participating states of their right under Article V to participate in deciding whether the Twelfth Amendment, which governs the Electoral College, should be changed.
The NPV would obviously disrupt the “finely wrought procedure” that the Framers designed into our presidential election process with the Electoral College that was a product of the great debates and compromises that produced the Constitution. It would trivialize the federalism principles behind the Electoral College. The supporters of NPV are not hiding their goal: trying to manipulate the Electoral College out of existence, an objective that cannot be achieved by state compact, especially without congressional approval.
Even more disconcerting, the NPV provides that if the “number of presidential electors nominated in a member state” is less than what the winner of the national popular vote is entitled to, that winner “shall have the power to nominate the presidential electors for that state.” In other words, a winning candidate (say a governor from another state like Texas or Massachusetts) could appoint the electors for New York even if the candidate never qualified to get on the ballot in New York; he or she could even designate as electors individuals who are not residents or qualified voters in New York.
Under the third prong of the test delineated in U.S. Steel Corp., the compact must allow states to withdraw at any time. The NPV, however, places withdrawal limitations on compacting states. The plan states that “a withdrawal occurring six months or less before the end of a President’s term shall not become effective until a President or Vice President shall have been qualified to serve the next term.” This provision is in direct conflict with the U.S. Steel Corp. test and therefore alone renders the compact unconstitutional without congressional approval. It could also cause an irresolvable election crisis if a state withdrew in violation of the provision and thus threw into doubt the results of a presidential election. There is no provision in the NPV for enforcing this limitation or compliance with any of the provisions of the compact.
Moreover, this withdrawal limitation is in explicit violation of the Article II provision that gives to the legislatures of each state the power to select the manner in which electors are chosen. A legislature can delegate to the people of its state the ability to choose electors, but the legislature also retains the power to withdraw that delegation. The NPV scheme would temporarily suspend that legislative power—an act that would violate the Constitution.
Outside of the question of constitutionality, however, there are also a number of public policy reasons that such an amendment would be detrimental to America’s unique democratic system.
Although some legislators have embraced the NPV, such support appears to be rather shortsighted: Under the NPV, a majority of states will see their influence over the presidential election decrease. As John Samples of the Cato Institute has determined, the influence of a state under the Electoral College can be measured by dividing the state’s electoral votes by the total electoral votes; the measure under the NPV is the number of a state’s eligible voters divided by the total eligible votes in the country.
Under the NPV, recounts would be both more prevalent and more problematic. The basic principles of federalism—the principles upon which this nation was founded—were used to design the U.S. electoral process. As a result, federal elections are decentralized affairs; each of the 50 states and the District of Columbia run their own elections on the first Tuesday of November every four years or for a varying period before then in early-voting states. Every state has different procedural rules for the administration of elections, from the definition of what constitutes a vote to how recounts are triggered and conducted.
The presidential election of 2000 saw an unprecedented vote recount in Florida. This recount was a belabored, emotional, costly process even though it was limited to only one state. For the most part, only one set of state laws was applicable in that recount. Under the NPV, however, any suspicions necessitating a recount in even a single district would be an incentive for a national recount. And why not? Every additional vote a losing candidate could obtain anywhere in the country could make the difference in winning or losing the national election—even if the extra vote would not change the results of the electoral vote in that particular state under the current system.
The prospect of a candidate challenging “every precinct, in every county, in every state of the Union,” should be abhorrent to anyone who witnessed the drama, cost, delay, and undue litigation sparked by the Florida recount of 2000. Worse still, there is little chance that the ballots would be recounted in a consistent manner across the nation or that there would be a national, as opposed to piecemeal, recount.
Election laws vary by state, which means that 50 different standards (plus the District of Columbia’s) would be applied to a recount, and no state or group of states that wanted a national recount could force other states to participate. Ironically the NPV, which is supposed to make each vote count equally, would likely result in varied and even conflicting decisions among the states as to the validity of each vote. Moreover, while the total of the national popular vote may be close, the vote totals in particular states may not be close at all—certainly not close enough to trigger a recount under that particular state’s recount laws even if a losing candidate believes a national recount is warranted.
Thus, the 2000 Florida recount madness could be replicated on a national level, with new complexities added by certain states refusing to participate in the recount or even devising their own recount rules. A national recount could result in 51 potential lawsuits heading to the Supreme Court (or more if lawsuits are filed in each relevant state and federal court). The margin of victory in the popular vote could be enough to warrant a recount in the eyes of some yet not large enough to trigger a recount in specific states with large vote margins. The votes for the presidential ticket could get recounted in selected jurisdictions across the country but not in others, leading to virtually the same type of equal protection problems the Supreme Court found in Bush v. Gore because of the unequal treatment of ballots by election officials in separate Florida counties.
A national recount would result in protracted litigation and confusion, thus weakening public faith in the election process, delaying the final resolution of a presidential election, and exacerbating the exact “problem” that NPV claims to be solving. Just as important, however, is the fact that the 2000 election crisis was only a temporary one—a testament to the strength and reliability of this nation’s electoral system. Indeed, the current electoral system has consistently produced Presidents without a constitutional crisis. Therefore, the burden is on the NPV’s supporters to justify changing a system that has functioned well for over 200 years, not those who are defending that system.
Presidential campaigns would devolve into European-style, multi-candidate races. As more candidates enter the field, individual votes will necessarily be divided among an ever-increasing number of candidates. The result will be lower vote totals per candidate and an increased likelihood that two or more candidates will have close popular vote totals.
The winner-take-all allocation of electoral votes within 48 states necessitates that a candidate be popular enough to appeal to a broad electorate, including moderate voters, and provides the winner of the presidential race with both finality and a mandate even if his popular vote total is slightly below 50 percent. With its plurality requirement, however, the NPV could lead to the election of presidential candidates by unprecedented, small margins. These smaller victory margins, combined with the overall decrease in popular support for a single candidate, could trigger chaotic and contentious elections. Furthermore, a President elected by only 25 or 35 percent of the American people would not have a mandate to govern, and questions about his legitimacy could pose grave consequences both for the nation and for any actions he took as President.
Under the NPV, provisional ballots could also lead to an extensive, widespread, and complex battle that could further delay and confuse the results of a presidential election. Federal law requires provisional ballots for all voters whose eligibility is called into question or who are unable to cast a regular ballot at the polling place because they are not on the list of registered voters.
Provisional ballots are counted by local election officials only if they are able to verify that the voter was entitled to vote, which happens after the election and after an investigation of the circumstances by election officials. Provisional ballots may not affect the outcome of the majority vote within a state under the current system because the number of provisional ballots is less than the margin of victory. However, if the total number of provisional ballots issued in all of the states is greater than the margin of victory, a national battle over provisional ballots could ensue.
Losing candidates would then have the incentive to hire lawyers to monitor (and litigate) the decision process of local election officials in every corner of the nation. This process would make the isolated fights over the chads in punch-card ballots in Florida in 2000 look almost insubstantial by comparison. Furthermore, lawyers contesting the legitimacy of the decisions made by local election officials on provisional ballots nationwide could significantly delay the outcome of a national election.
Another unforeseen consequence of the NPV is that the plan would encourage vote fraud. Currently, a fraudulent vote is counted only in the district in which it was cast and therefore can affect the electoral votes only in that particular state. Under the NPV, however, vote fraud in any state would affect the aggregate national vote.
To a would-be wrongdoer, this is a drastic increase in the potential benefit obtained from casting fraudulent ballots. Fraudsters would be encouraged to engage in fraud to obtain further votes for their national candidate or to deny votes for the opposition candidate. Under the current system, there are some states where such fraud would make no difference, but with the NPV, every fraudulent vote obtained anywhere could make the difference in changing the outcome of the national race.
This prospect is even more worrisome when one considers how much easier it is to cast fraudulent votes in strongly partisan neighborhoods and one-party districts where there are no (or few) members of the opposition party to work as election officials or poll watchers. There is little incentive to engage in such partisan fraud where it is most possible now, since the dominant party is likely to win anyway, but under the NPV scheme, there is an increased incentive to engage in fraud in such states that are the most corrupt and one-sided even if others have relatively clean elections. Thus, this scheme makes all states—especially one-party states and those with a history of tolerating fraud—targets for fraud, likely increasing this type of misbehavior nationwide.
It should be noted that “[t]he popular vote winner has triumphed in 42 of 45 elections.” Supporters of NPV point to those elections (1876, 1888, and 2000) where the popular vote winner did not prevail.
But Bradley Smith concludes that “the Electoral College clearly played a democratizing and equalizing role” in the 1876 and 1888 elections that “almost certainly better corresponded to true popular sentiment than did reported popular vote totals.” Why? Because in the 1876 election, for example, where Samuel Tilden defeated Rutherford B. Hayes in the popular vote, there was “rampant vote fraud and suppression in the southern states [that] make the actual vote totals from that election unknowable.” Similarly, in the 1888 election, Southern states voted overwhelmingly for Cleveland, the national popular vote winner, while Republican Benjamin Harrison carried the rest of the nation, winning 20 of 25 states. If blacks had not had their votes suppressed, there is little doubt that Harrison, as a Republican, would have received almost the entire black vote and would have won the national popular vote, which he lost by less than 100,000 votes.
The NPV is both unconstitutional and bad public policy. It would devalue the minority interests that the Founders sought to protect, create electoral administrative problems, and radicalize the U.S. political system. If the proponents of the NPV believe that this change is necessary, they should convince Congress and the American people and use the proper method for amending the Constitution.
America’s election systems have operated smoothly for more than 200 years because the Electoral College accomplishes its intended purposes…. [It] preserves federalism, prevents chaos, grants definitive electoral outcomes, and prevents tyrannical or unreasonable rule. The Founding Fathers created a stable, well-planned and carefully designed system—and it works.
In an age of perceived political dysfunction, effective policies already in place—especially successful policies established by this nation’s Founders, such as the Electoral College—should be preserved.
—Hans A. von Spakovsky is a Senior Legal Fellow in the Center for Legal and Judicial Studies at the Heritage Foundation. He is a former member of the Federal Election Commission and a former counsel to the Assistant Attorney General for Civil Rights at the U.S. Department of Justice. He is also a former member of the Fulton County Registration and Election Board in Georgia and currently serves as vice-chairman of a county electoral board in Virginia.
Bradley A. Smith, Vanity of Vanities: National Popular Vote and the Electoral College, 7 Election L.J. 3, 217 (2008).
 Frequently Asked Questions, U.S. Electoral College, http://www.archives.gov/federal-register/electoral-college/faq.html (last visited Oct. 17, 2001). From 1889 to 2004, 595 amendments were introduced in Congress to amend the Electoral College. Cong. Research Serv., The Electoral College: An Overview and Analysis of Reform Proposals 17 (2004).
U.S. Const. art. II, § 1, cl. 2.
McPherson v. Blacker, 146 U.S. 1, 29 (1892).
Cong. Research Serv., The Electoral College: 1–2.
U.S. Const. amend. XII; 3 U.S.C. §§ 1–21. Congress meets in joint session to count the electoral votes in January. If no candidate wins a majority of the electoral votes, the House selects the President and the Senate selects the Vice President, with each state delegation in the House having only one vote. U.S. Const. amend. XII.
Nebraska and Maine provide for allocation of their electoral vote by congressional districts with two electors awarded to the state-wide winner.
 See National Popular Vote, www.nationalpopularvote.com (last visited Oct. 11, 2011). For a justification for this change in extensive detail, see also John R. Koza et al., Every Vote Equal: A State-Based Plan for Electing the President by National Popular Vote 2011.
Letter from John Boehner, House of Rep. Speaker, Mitch McConnell, Senate Republican Leader, and Rick Perry, Governor of Texas, to Governors of the Fifty States (June 29, 2011) (hereinafter Boehner Letter), available at http://www.flashreport.org/blog/wp-content/uploads/2011/08/Letter-Boehner.McConnell.Perry-1.pdf.
 See Tara Ross, The Electoral College: Enlightened Democracy, Heritage Foundation Legal Memorandum No. 15 (Nov. 1, 2004), available at http://www.heritage.org/research/reports/2004/11/the-electoral-college-enlightened-democracy.
James Madison, Notes of Debates in the Federal Convention of 1787 573–575 (W.W. Norton & Co. 1987).
John Samples, A Critique of the National Popular Vote Plan for Electing the President, Cato Institute Policy Analysis No. 622 (Oct. 13, 2008), available at http://www.cato.org/pubs/pas/pa-622.pdf.
Ross, supra note 10, at 6.
Smith, supra note 1, at 198–199.
Samples, supra note 13, at 9.
U.S. Const. art. I, § 10, cl. 3.
The Heritage Guide to the Constitution 178 (Edwin Meese III et al. eds., 2005).
Matthew Pincus, When Should Interstate Compacts Require Congressional Consent? 42 Colum. J.L. & Soc. Probs. 511, 516 (2009).
Samples, supra note 14, at 9.
434 U.S. 452 (U.S. 1978); see also Virginia v. Tennessee, 148 U.S. 503 (1893).
The Heritage Guide to the Constitution, supra note 19.
 U.S. Steel Corp., 434 U.S. at 473.
Tara Ross, Federalism & Separation of Powers—Legal and Logistical Ramifications of the National Popular Vote Plan, 11 Engage 2, 40 (Sept. 2010).
524 U.S. 417, 439–440 (1998).
 Id. at 831 (citing Gomillion v. Lightfoot, 364 U.S. 339, 345 (1960), quoting Frost & Frost Trucking Co. v. Railroad Comm’n of Cal., 271 U.S. 583, 594 (1926)).
National Popular Vote, Agreement Among the States to Elect the President by National Popular Vote, Art. III, available at http://www.nationalpopularvote.com/resources/43-Compact-TAATS-V43.pdf (last visited October 19, 2011).
Some might argue that the NPV compacts have no formal enforcement mechanism and that states therefore maintain their right to withdraw as they see fit. See James Taranto, Faithless Lawmakers, Wall St. J. (July 29, 2010), available at http://online.wsj.com/article/SB10001424052748703578104575397100729241576.html?mod=WSJ_Opinion_MIDDLETopOpinion. Nevertheless, this scenario creates a constitutional Catch-22: Either the states have created an unconstitutional compact that can be enforced or the compact could cause an electoral crisis if a state should withdraw from the compact during or immediately before an election.
 Smith, supra note 1, at 210.
Samples, supra note 14, at 3–4.
 Id. at 6. The states that lose influence under the NPV (ranked from the smallest loss of influence to the largest) are California, Oklahoma, Minnesota, Louisiana, Oregon, Mississippi, Connecticut, Colorado, Arizona, Kansas, Arkansas, Iowa, Utah, West Virginia, Nevada, New Mexico, Nebraska, Maine, Montana, New Hampshire, Idaho, Hawaii, Rhode Island, Delaware, South Dakota, North Dakota, Vermont, Alaska, D.C., and Wyoming. Id. at 4, Table 1.
Ross, supra note 29, at 38, citing Smith, supra note 1, at 207.
Gary Gregg, Electoral College Watch, National Review Online (Oct. 25, 2004, 9:39 a.m.), http://old.nationalreview.com/gregg/gregg200410270939.asp.
 Enacting the Agreement Among the States to Elect the President by National Popular Vote, Hearing on SB 344 Before the S. Comm. on Legislative Operations and Elections, 2011 Leg., 76th Sess. (Nv. 2011) (testimony of Tara Ross).
Smith, supra note 1, at 207.
Ross, supra note 29, at 38.
Smith, supra note 1, at 203.
Provisional ballots are required by the Help America Vote Act, 42 U.S.C. § 15482 (2002).
Smith, supra note 1, at 213. Some NPV supporters also point erroneously to the election of 1824 in which the House of Representatives selected John Quincy Adams over Andrew Jackson; however, since some state legislatures still selected electors, there was no actual popular vote total.
Ross, supra note 11, at 13.


Harlan Anderson, Appellant, vs. City of Cokato, a Minnesota municipal corporation, Respondent. C3-01-265, Court of Appeals Published, July 17, 2001.
The condemning authority’s change of the use for which acquired land has been taken, after title has been transferred to the condemnor in a condemnation proceeding, is not a discontinuance under Minn. Stat. § 117.195 (2000), such as to entitle the landowner to an award of attorney fees and costs.
Appellant Harlan Anderson challenges the district court’s determination that Minn. Stat. § 117.195, subd. 2 (2000), did not provide a remedy for appellant when the condemning authority changed its purpose for condemning appellant’s former land. We affirm.
Respondent City of Cokato petitioned for condemnation of appellant Harlan Anderson’s entire tract of real estate for the purpose of storm water management. Respondent then amended the petition to include the purpose of economic development. At a later hearing, respondent again amended the petition eliminating the purpose of economic development. On April 5, 1996, the district court granted the condemnation petition, giving respondent approval to condemn appellant’s property for storm water management purposes. The court-appointed commissioners awarded appellant $40,000 in damages. Anderson appealed to the district court, and after trial, he received $83,500 in damages and costs, and $18,575.93 in interest. Respondent received possession and title to appellant’s property on July 17, 1997. Respondent satisfied the judgment on April 20, 1998.
During the condemnation proceedings, respondent approved the hiring of a technical assistance person to develop a grant application for the construction of a water tower. On April 13, 1998, respondent hired a person to write a grant application for a new water tower. In September 1998, the city decided to build the water tower on what was formerly appellant’s land.
In August 2000, appellant sued under Minn. Stat. § 117.195, subd. 2 (2000), to recover attorney fees and costs associated with the condemnation of his property. Appellant alleged that respondent discontinued its condemnation action when it decided to build the water tower on his former land. The district court granted summary judgment in favor of respondent. This appeal follows.
Is a condemnation considered discontinued under Minn. Stat. § 117.195, subd. 2 (2000), upon condemnor’s subsequent change in purpose for the use of the acquired land?
On an appeal from summary judgment, we ask two questions: (1) whether there are any genuine issues of material fact and (2) whether the lower courts erred in their application of the law.
State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990) (citation omitted). This court must “view the evidence in the light most favorable to the party against whom judgment was granted.” Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993) (citation omitted). Appellant contends that there is a material fact in dispute because respondent denies changing its purpose for condemning appellant’s land. Because we review the evidence in the light most favorable to appellant, we will accept that respondent changed its purpose for condemning appellant’s former land.
“Attorneys’ fees are allowed in eminent domain proceedings only where authorized by statute.” Sipe v. Kalitowski, 390 N.W.2d 910, 912 (Minn. App. 1986) (citation omitted), review denied (Minn. Sept. 24, 1986). The interpretation of a statute is a question of law that this court reviews de novo. Opus N.W., L.L.C. v. Minneapolis Cmty. Dev. Agency, 599 N.W.2d 582, 583 (Minn. App. 1999).
[w]hen the proceeding is dismissed for nonpayment or discontinued by the petitioner, the owner may recover from the petitioner reasonable costs and expenses including attorneys’ fees.
This eminent domain proceeding was not dismissed because the condemnor made full payment on the judgment and the landowner accepted payment. Moreover, the hearing was not discontinued because the entire tract was taken and respondent gained possession and title. From a plain reading of the statute, appellant is not entitled to attorney fees and costs based on section 117.195, subd. 2.
Despite the plain language of the statute, appellant requests that our court interpret the phrase “discontinued by the petitioner” to provide a remedy when the condemning authority uses the property for a purpose different from that announced in the petition for condemnation. A similar extension of the definition of Minn. Stat. § 117.195, subd. 2 was sought in County of Freeborn v. Bryson, 294 N.W.2d 851 (Minn. 1980). In Bryson, landowners in an eminent domain proceeding argued that the phrase “discontinued by the petitioner” should be extended to situations where the district court discontinues the hearing based on the Environmental Rights Act. Id. at 852. The supreme court stated that it was “sympathetic” to the landowners’ position but refused to “go beyond the clear limitations of section 117.195.” Id. at 853. Here, as in Bryson, there is nothing in the statutory language providing appellant the remedy he requests.
Appellant fails to cite authority that supports extending the plain statutory language of section 117.195 to include situations where the condemning authority changes its purpose for property it has acquired by eminent domain. See Tereault v. Palmer, 413 N.W.2d 283, 286 (Minn. App. 1987) (stating “the task of extending existing law falls to the supreme court or the legislature but it does not fall to this court”), review denied (Minn. Dec. 18, 1987).
The plain language of Minn. Stat. § 117.195, subd 2 (2000), does not provide a remedy when, after the judgment has been satisfied, the condemning authority changes its purpose for property taken by eminent domain.


text:
FINK v. SHEPARD S.S. CO.
Mr. James Landye, Portland, Or., for petitioner Fink.
Mr. Abraham E. Freedman, Philadelphia, Pa., for petitioner Gaynor.
Mr. Leavenworth Colby, Washington, D.C., for respondent.
These two cases raise issues which, as the facts set out below indicate, are controlled by our decision in Cosmopolitan Shipping Co. v. McAllister, 337 U.S. 783 .
The petitioner, Fink, signed on the S. S. George Davidson on June 8, 1943, as an able seaman. The shipping articles showed as the 'Registered Managing Owner or Manager' the 'War Shipping Administration (Owner) Shepard Steamship Co. (Gen. Agents).' The contract pursuant to which respondent, Shepard Steamship Co., handled certain phases of the ship's business was the standard form General Agency Agreement, GAA 4-4-42. Petitioner was procured by respondent from a union hiring hall for employment by the master of the vessel.
In August, 1943, while the ship was at sea, Fink was ordered by the master and boatswain to empty a garbage [337 U.S. 810 , 812] can overboard. No one was assigned to help him although the can was heavy, the rail high and the sea rough. The roll of the ship caused the can to be thrown backwards against petitioner injuring him.
Petitioner instituted this action for damages against respondent under the Jones Act1 in a Circuit Court of Oregon, alleging that respondent was 'in possession of, controlled, navigated, managed and operate' the Davidson and was negligent in ordering petitioner to dump the garbage in a heavy sea without assistance. 2 Respondent denied all these allegations. The jury was charged that the officers of the ship were agents of respondent and that their negligence, if any, should be imputed to respondent. Judgment was entered on a jury verdict for petitioner. The Supreme Court of Oregon reversed, Fink v. Shepard S.S. Co., Ore., 192 P.2d 258, holding that the remedy for an injury caused by the negligence of the ship's officers on a government-operated vessel such as this, subsequent to the enactment of the Clarification Act, was exclusively by suit against the United States under the Suits of Admiralty Act. It thus distinguished Hust v. Moore-McCormack Lines, 328 U.S. 707 , on the ground that there the injury occurred before the effective date of the Clarification Act. 3 A petition for certiorari was granted and the case set for argument along with Cosmopolitan Shipping Co. v. McAllister, supra.
The question here is identical with that in McAllister, i.e., whether the general agent of a vessel owned by the [337 U.S. 810 , 813] government and operated by the War Shipping Administration is liable under the Jones Act to a seaman who is injured at sea after the date of enactment of the Clarification Act by the negligence of the officer of the vessel. The reasons and arguments supporting our negative answer to that question in McAllister are equally applicable here. No purpose would be served by repeating them.
We desire to point out, however, that the testimony in this case confirms the conclusions which we have drawn from a study of the standard from General Agency Agreement. It establishes that respondent was neither the employer of officers on vessels such as the Davidson nor a party to such a relation ith them that it could be held vicariously liable for their torts. It shows that such officers were required to fill out an application form for employment captioned 'War Shipping Administration, Division of Operations Service Record.' Consideration and approval of these applications by the W.S.A. made the applicants employees of the United States. Thereafter, transfer to other W.S.A. vessels for which different companies were general agents, could be accomplished by furnishing to W.S.A. a transfer form. No new application for employment was required. It shows that the general agent had no voice in determining the destination or route of the vessel, in what service it could be operated, or how it would be handled in foreign ports. The soliciting and loading of cargo and the collection of freight were functions of the berth agents.
Petitioner Gaynor signed shipping articles in 1945 as a member of the crew of the S. S. Christopher Gadsden, a vessel which was owned by the United States and operated by the War Shipping Administration. The ar- [337 U.S. 810 , 814] ticles referred to 'Agwilines, Inc., as gen. agts. for WSA,' and also stated, '* * * The Master, Officers, and all other members of the Crew are employees of the United States subject to the provisions of (the Clarification Act, 57 Stat. 45, 50 U.S.C.Appendix, 1291, 50 U.S.C.A. Appendix, 1291), and are not employees of Agwilines, Inc.' Respondent Agwilines was the general agent for the ship under standard form contract GAA 4-4-42. The Gadsden departed from Philadelphia on a foreign voyage and stopped en route at Charleston where, while on authorized shore leave, petitioner was injured in a highway accident. Neither the ship, the general agent, nor the W.S.A. was directly involved in any way in the accident.
Petitioner sued respondent for wages and maintenance and cure, alleging that respondent 'possessed, owned, operated and controlled' the vessel. Agwilines denied these allegations, averred that it was merely the general agent under the standard form contract, that the ship was 'owned, operated and controlled by the United States,' and that petitioner had failed to comply with the Clarification Act, which required complaints of this sort to be brought pursuant to the Suits in Admiralty Act.
On the pleadings, an agreed statement of facts as summarized above, the shipping articles, the standard form agreement, and the delivery and redelivery certificates evidencing the allocation of the vessel to respondent by the W.S.A., the United States District Court for the Eastern District of Pennsylvania dismissed the action on the ground that petitioner's only remedy was a suit against the United States pursuant to the Clarification Act. 76 F.Supp. 617. The United States Court of Appeals for the Third Circuit affirmed. Gaynor v. Agwilines, Inc., 169 F.2d 612. We granted certiorari and assigned the case for argument along with Cosmopolitan [337 U.S. 810 , 815] Shipping Co. v. McAllister, and Fink v. Shepard Steamship Co., supra.
The delivery certificate, relied upon by petitioner as showing that the Gadsden was in the possession and control of Agwilines, recites in pertinent part that the ship 'was on the 31st day of December, 1942 * * * delivered * * * by the War Shipping Administration to Agwilines, Inc. Under Terms and Conditions of 'Service Agreement, Form GAA' * * *.' It is quite obvious, we [337 U.S. 810 , 816] think, that this certificate refers only to a 'delivery' for the purposes contemplated by the General Agency Agreement and adds nothing of significance to that agreement, which we have already held, McAllister, supra, to be insufficient to establish liability on the part of the general agent.
Nos. 360 and 430 affirmed.
Mr. Justice BLACK, Mr. Justice DOUGLAS, Mr. Justice MURPHY and Mr. Justice RUTLEDGE dissent.
[ Footnote 1 ] 41 Stat. 1007, 46 U.S.C. 688, 46 U.S.C.A. 688.
[ Footnote 2 ] He also filed claim on account of his injuries with the War Shipping Administration and sued the United States pursuant to the Suits in Admiralty Act, 46 U.S.C.A. 741 et seq., and the War Shipping Administration, Clarification Act, 57 Stat. 45, 50 U.S.C.Appendix, 1291, 50 U.S.C.A.Appendix, 1291. This suit was later dismissed without prejudice.
[ Footnote 3 ] See Hust v. Moore-McCormack Lines, supra, 328 U.S. at page 727, 66 S.Ct. at page 1228.
[ Footnote 4 ] Note that wages and maintenance and cure are treated along with claims for injuries in 1 of the Clarification Act, which, in the case of seamen employed on United States or foreign vessels as employees of the United States through the W.S.A., directs that all of these rights shall be enforced pursuant to the provisions of the Suits in Admiralty Act.

matches: v. v. v. v. v. v. v. v. v.


GERSHWIN A. DRAIN United States District Judge.
Defendant Frank Howard pleaded guilty to one count of Social Security Representative Payee Fraud under 42 U.S.C. § 408(a)(5), on January 14, 2016. See United States v. Howard, 15-cr-20731, ECF No. 11, p. 1 (Pg. ID 27). As part of his sentence, the Court ordered Howard to pay restitution of $79, 364.00 to the Social Security Administration (“SSA”). Id. at ECF No. 17, p. 6 (Pg. ID 77).
On December 20, 2017, Howard moved for relief from the Judgment, and on January 2, 2018, the Government responded to his motion. See Dkt. Nos. 13, 14. The Defendant filed on January 30, 2018 a reply in support of his motion. See Dkt. No. 15.
Presently before the Court is the Defendant's Motion for Relief from Judgment . The motion is fully briefed, and a hearing on the motion was held on Monday, March 12, 2018 at 2:00 P.M. For the reasons detailed below, the Court will DENY the Defendant's Motion for Relief from Judgment .
Since his January 14, 2016 sentencing, Howard has encountered financial difficulties. First, starting April 2017, the SSA has applied all of his social security benefits toward the Court-ordered restitution. Dkt. No. 13, p. 2 (Pg. ID 61); see also Dkt. Nos. 13-3, 13-4. And pursuant to divorce proceedings, as of January 2018, his ex-wife has received half of his monthly FCA U.S. LLC pension. Dkt. No. 13, p. 2 (Pg. ID 61). Therefore, according to the Defendant, his only income will be half of his FCA U.S. LLC pension and all of his veteran's pension, allegedly placing him below the poverty level. Id. at pp. 2-3 (Pg. ID 61-62).
In sentencing the Defendant, the Court did not specify a payment plan for restitution. See United States v. Howard, 15-cr-20731, ECF No. 17, p. 6 (Pg. ID 77). Accordingly, payment was due in full immediately. See 18 U.S.C. § 3572(d). Howard asks the Court to amend the payment schedule, claiming there has been a material change in his economic circumstances that affects his ability to pay restitution. See 18 U.S.C. § 3664(k). The Defendant's financial situation is unfortunate. But, the law does not entitle Howard to relief. Therefore, the Court will deny his motion.
Howard is not entitled to relief for two reasons. First, administrative relief from an order of restitution is only proper under 18 U.S.C. § 3664(o), and this provision is inapplicable here. Second, the Court lacks jurisdiction to the extent Howard contests the SSA's decision to withhold all of his social security benefits.
18 U.S.C. § 3664 governs procedures for the issuance and enforcement of restitution orders. And 18 U.S.C. § 3664(o) details the limited instances where a court can amend, correct, or adjust a restitution order. Howard vigorously, and unsuccessfully, argues 18 U.S.C. § 3664(o)(1)(D) affords him relief.
That provision authorizes an adjustment to a restitution payment schedule pursuant to 18 U.S.C. § 3664(k). 18 U.S.C. § 3664(k) allows courts to alter a payment schedule if there is a material change in a defendant's economic circumstances. Howard contends the principal change in his circumstances is that, since April 2017, the SSA has withheld his entire monthly social security benefit payment and contributed this amount toward satisfaction of the Court-ordered restitution. Additionally, as of January 2018, his ex-wife has received half of his FCA U.S. LLC pension. Howard maintains these changes will sink his income below the poverty line, and exacerbate his significant outstanding liabilities, including medical bills. Dkt. No. 13-1, p. 2 (Pg. ID 65).


text:
The Complainant is Tuyap Tum Fuarcilik Yapim Anonim Sirketi (Tuyap Fairs and Exhibitions Organization Inc.), of Istanbul, Turkey, represented by Pinar Kaya Yalcin of Turkey.
The Respondents are Tuyap /Kurumsal.net/ Koznet Kurumsal Internet Hizmetleri ("Respondent"), of Istanbul, Turkey.
The disputed domain name <tuyap.com> is registered with Bulkregister.com.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the "Center") on June 9, 2003. On June 10, 2003, the Center transmitted by email to Bulkregister.com a request for registrar verification in connection with the domain name at issue. On the same day, Bulkregister.com transmitted by email to the Center its verification response confirming that the Respondent "Tuyap" is listed as the registrant and providing the contact details for the administrative, billing, and technical contact. In response to a notification by the Center that the Complaint was administratively deficient, on the ground that the registrant of record was not the entity specified in the Complaint as the Respondent, the Complainant filed an amendment to the Complaint on June 17, 2003. The Center verified that the Complaint together with the amendment to the Complaint satisfied the formal requirements of the Uniform Domain Name Dispute Resolution Policy (the "Policy"), the Rules for Uniform Domain Name Dispute Resolution Policy (the "Rules"), and the WIPO Supplemental Rules for Uniform Domain Name Dispute Resolution Policy (the "Supplemental Rules").
The Center appointed Anne-Virginie Gaide as the sole panelist in this matter on July 16, 2003. The Panel finds that it was properly constituted. The Panel has submitted the Statement of Acceptance and Declaration of Impartiality and Independence, as required by the Center to ensure compliance with the Rules, paragraph 7.
On July 30, 2003, the Administrative Panel issued Panel Order no. 1, by which it requested Complainant to provide additional information on its relation to the holder of the registered trademark relied upon in the Complaint as well as on the legal proceedings initiated by Complainant in Turkey before the filing of the Complaint. On August 1, 2003, within the deadline set in Panel Order no. 1, Complainant filed a Reply by e-mail with the Center. Respondent did not file any observations on such Reply.
Complainant, a company founded in 1979, organizes fairs and exhibitions in Turkey and abroad.
Tuyap Holding Inc. is the registered owner of a Turkish registration for the service mark TÜYAP & design in international class 36 (reg. number 172 445), valid until October 23, 2005. The services covered are "investment, financing services".
In the course of the year 2000, Complainant entered into a Registrant Name Change Agreement with Cem Incecinar, in the name of which the Domain Name was registered at the time. This Agreement provided for the transfer of the Domain Name to Complainant.
As of November 23, 2001, the Domain Name was registered in the name of Tuyap Fuarcilik A.S. The administrative and technical contact for the Domain Name was at that time "kurumsal.net".
As of June 4, 2003, the registrant of the Domain Name was "Tuyap", the only address provided being "Istanbul, TR 80300". The administrative and technical contact for the Domain Name was still "kurumsal.net".
On May 1, 2003, the Domain Name resolved to a web page with the following content: "The Internet publishing and e-mail services have been closed for an unlimited period because Tuyap has not paid the prices for the Internet project services. The reasons for closing this web-site will be explained in the Internet site tomorrow".
On May 9, 2003, the Domain Name resolved to a web page with the following content, in Turkish and in English: "Tuyap.com Website hosting & e-mail services have been suspended permanently due to non-payment".
Since 1979, Complainant has served more than 25,000 domestic and foreign client organizations by organizing 443 domestic fairs and exhibitions. It is the owner of the TUYAP Fair, Convention and Congress Center in Istanbul, the largest fair and congress center in Turkey, covering 121,000 square meters and designed to provide a full range of services to exhibitors and visitors. Complainant owns the domain name <tuyap.com.tr>, through which it currently broadcasts its Internet site, as well as numerous domain names including the term "tuyap".
Complainant is controlled by Tuyap Holding Inc., which owns 59,8% of Complainant's shares.
Complainant entrusted the company Koznet Kurumsal Internet Hizmetleri (herafter "Koznet") with design, consultancy and management services relating to its web site and to the Domain Name <tuyap.com>. Koznet transferred the Domain Name (until then registered with Network Solutions) to the current registrar Bulkregister.com, and modified on that occasion the Whois data pertaining to the Domain Name, without Complainant's consent, thus violating its contractual agreement with Complainant and the principles of good faith and commercial ethics.
When Complainant decided to work with another service provider, due in particular to failures in the service provided by Koznet, it asked Koznet to orient the Domain Name towards the servers of the new service provider. Mr. Erdinc Muslu, responsible for Koznet, instead oriented the Domain Name towards his own servers, and then published untrue and harmful statements on Complainant. Complainant contends that it has paid all the sums due to Koznet, and does currently not owe anything to this company. The confiscation of the Domain Name by Respondent caused material and moral damage to Complainant, which had in particular to reprint its promotional material to replace <tuyap.com> by <tuyap.com.tr>.
Before turning to an analysis of these three elements, it is necessary to address a preliminary issue, concerning who the proper Respondents are in this case.
Even though only "Tuyap" is listed as Registrant in the Whois record relating to the Domain Name, Complainant contended in the Complaint that Respondent was Koznet Kurumsal Internet Hizmetleri, Mr. Erdinc Muslu, with two different addresses in Istanbul. The Center notified Complainant that the Complaint was administratively deficient, because the registrant of record was not the entity specified in the Complaint as the Respondent. In the amendment to the Complaint, Complainant indicated that Respondent should be "kurumsal.net", as this name was listed as the administrative contact for the Domain Name in the Whois record. According to Complainant, kurumsal.net and Koznet Kurumsal Internet Hizmetleri are the same entity. Complainant also mentioned that the owner of the domain name <kurumsal.net> was Mr. Erdinc Muslu.
According to the definition provided by paragraph 1 of the Rules, "Respondent means the holder of a domain-name registration against which a Complaint is initiated". Strictly speaking, the Respondent in this case should be "Tuyap", the only name listed under Registrant. In view of the fact that "Tuyap" does not appear to be a person or a legal entity (this name corresponds to Complainant's name and to the Domain Name), the Administrative Panel finds it appropriate to consider the name listed under "administrative and technical contact", i.e. kurumsal.net, as a Respondent in this case. It is also appropriate to cite Koznet Kurumsal Internet Hizmetleri as a Respondent, in view of Complainant's uncontested contention that kurumsal.net and Koznet Kurumsal Internet Hizmetleri designate the same entity (see Amazon.com, Inc. v. Wes Mayder, WeDirect, Inc. and Iclicks, WIPO Case No. D2003-0258, where the Administrative Panel considered as a proper Respondent an entity which appeared to be probably identical to one of the listed Registrant, and whose name appeared as a technical contact).
On the other hand, the Administrative Panel considers that it is not appropriate to name as a Respondent Mr. Erdinc Muslu, as this person does not appear anywhere in the Whois record for the Domain Name. This might be justified, maybe, if Mr. Muslu was the only beneficial owner of Koznet. This has however not been alleged and cannot be inferred from the sole fact that he is the registrant of the domain name <kurumsal.net>.
Accordingly, the Administrative Panel considers that Respondent in the present case is Tuyap/kurumsal.net/Koznet Kurumsal Internet Hizmetleri.
The Domain Name reproduces in its entirety the word element of the service mark "TÜYAP & design". The Administrative Panel assumes in this context that the term "TÜYAP" is distinctive, as this has not been contested. The fact that the typographic sign "" on the letter "U" is not reproduced in the Domain Name is not relevant. Indeed, it does not influence in a significant manner the visual impression produced by the mark, so that its absence does not constitute a material difference. The graphical elements of the mark consist in the font in which the word "TÜYAP" is written, as well as in a square device on the left of this word, which features what seems to be a stylized "T". This device is smaller than the word "TUYAP", which is thus clearly predominant. The Administrative Panel finds consequently that the Domain Name is confusingly similar to the service mark "TÜYAP & design".
Complainant is not the registered holder of this mark. The registered holder is indeed Tüyap Holding A. S. Complainant has declared, and Respondent has not contested, that it is controlled and managed by Tüyap Holding, which is its majority shareholder. In view of the relationship between Complainant and Tüyap Holding, the Administrative Panel considers that Complainant has rights to the service mark "TÜYAP & design" (which appears on Complainant's letterhead). It is accordingly not necessary to examine whether Complainant could be seen as having common law trademark rights due to its long use of the mark. It is to be noted in this respect that the application of the notion of common law trademark rights might not be appropriate when deciding a dispute between two parties located in a non-common law country.
In conclusion, the first condition provided in paragraph 4(a) of the Rules is satisfied.
The record contains no element that would command a finding of rights or legitimate interests of the Respondent regarding the Domain Name.
There could be a question as to whether a dispute between Respondent and Complainant on the subject of the fees due to Respondent for its services may justify the retention of the Domain Name as a security for payment. In other words, it is not impossible that Respondent could invoke, under Turkish law, some sort of lien or charge on the Domain Name, which might be a legitimate interest (see Clinomics Biosciences, Inc. v. Simplicity Software, Inc., WIPO Case No. D2001-0823, where the Administrative Panel found that the issue of whether the Respondent had a lien was outside the scope of the proceedings, because it requested an evaluation of the applicable commercial law of liens). However, in the absence of any allegation on this issue from Respondent (who is in default), the Administrative Panel infers, in conformity with paragraph 14(b) of the Rules, that no such lien or charge exists in favor of Respondent, and that Respondent has no rights or legitimate interests to the Domain Name.
In conclusion, the second condition provided in paragraph 4(a) of the Rules is satisfied.
Paragraph 4(b) of the Policy provides four circumstances which may be evidence of registration and use of a Domain Name in bad faith, with the indication that the list thus given is not exhaustive.
As of November 2001, the Domain Name was registered in the name of Complainant, the Respondent being only the administrative and technical contact for the Domain Name. Sometimes between November 2001 and June 2003, Respondent deleted the name and address of Complainant under the Registrant details, leaving only the name "tuyap" and a zip code. The only concrete details left were those of Respondent, under administrative and technical contact. This subsequent appropriation of the Domain Name must in the Panel's view be equivalent to registration within the meaning of paragraph 4(b) of the Policy. It can be noted that the notion of registration has already been stretched to encompass subsequent acquisition of a domain name (see Madonna Ciccone, p/k/a Madonna v. Dan Parisi and "Madonna.com", WIPO Case No. D2000-0847). Thus, the fact that Respondent's acts in respect of the Domain Name are not technically a registration or an acquisition should not prevent a finding of "registration in bad faith" within the meaning of paragraph 4b) of the Policy.
None of the circumstances set forth in paragraph 4(b) corresponds exactly to the present situation. It must however be examined whether the circumstances provided under letter (i) and (iii) could be applicable by analogy.
Paragraph 4(b)(i) provides that circumstances indicating that respondent has acquired the Domain Name primarily for the purpose of selling or otherwise transferring the domain name to the complainant, for a valuable consideration in excess of the out-of-pocket costs related to the domain name, shall be evidence of registration and use in bad faith.
In the present case, it might be argued that Respondent modified the Whois data of the Domain Name (thus "acquiring" it by deleting Complainant's name as Registrant and leaving only its own details in the Whois data) and used it to broadcast presumably untrue statements about Complainant for the purpose of pressuring Complainant into paying the disputed fees (in all likelihood in excess of the costs related to the Domain Name), in exchange of the restitution of the Domain Name. The Administrative Panel believes however that this interpretation of the Policy is a bit stretched, and that the situation at issue differs from the one contemplated by the drafters of the Policy, i.e. a typical cybersquatting situation. Moreover, it is not quite clear whether Respondent is willing to restitute control over the Domain Name to the Complainant if its fees were paid (there is no evidence of such an offer in the file, and the amount of the fees in dispute is unknown).
Paragraph 4(b)(iii) of the Rules, on the other hand, provides that registration of a domain name primarily for the purpose of disrupting the business of a competitor shall be evidence of registration and use in bad faith.
In the present case, it is likely that Respondent modified the Whois data for the Domain Name and used its control over the Domain Name for the purpose of disrupting the business of Complainant. First, by preventing web users from accessing Complainant's web site by means of the Domain Name, Respondent obviously caused an important disruption. Complainant explains in this respect that it had to reprint various commercial documents in order to mention <tuyap.com.tr> instead of <tuyap.com>. Moreover, assuming Complainant does not owe any sum to Respondent for its past services (as alleged without contestation by Complainant), the use of the Domain Name in connection to web pages falsely accusing Complainant of not paying its provider, is obviously apt to disrupt Complainant's business by creating doubts about its solvability and commercial honesty.
Arguably, Complainant is not a commercial competitor of Respondent, since they do not offer similar goods or services. Rather, Complainant was a customer of Respondent. The notion of "competitor", as provided in paragraph 4(b)(iii) of the Policy, has been interpreted differently by Administrative Panels. In Mission KwaSizabantu v. Benjamin Rost, WIPO Case No. D2000-0279, the Panel held that the term "competitor" should not be restricted to a commercial or business competitor but should encompass a person who acts in opposition to another. In The Toronto-Dominion Bank v. Boris Karpachev, WIPO Case No. D2000-1571, the Panel also adopted a broad approach, holding that the genre of competition referred to needed not be commercial, and that the respondent's opposition to the practices of a broker, of which he was previously a customer and which he criticized, was sufficient to qualify him as a competitor. In Tribeca Film Center, Inc. v. Lorenzo Brusasco-Mackenzie, WIPO Case No. D2000-1772, the Panel preferred a restrictive view, and held that a respondent can disrupt the business of a "competitor" only if it offers goods or services that can compete or rivals with the goods or services offered by the trademark owner.
The Administrative Panel finds it not necessary to take side in this controversy. Indeed, In view of the fact that paragraph 4(b) of the Policy is not exhaustive, it should be possible to apply its provisions by analogy to situations that differ only slightly from the situations described in this paragraph. The Administrative Panel sees no reason why registration and use for the purpose of disrupting the business of a previous customer should be treated differently from registration and use for the purpose of disrupting the business of a competitor. Even though disruption of the business of a customer is not expressly described in the Policy, it appears materially very similar to the situation concerned by paragraph 4(b)(iii). A finding of bad faith registration and use is therefore justified in the Panel's opinion, even if, arguably, the term "competitor" does not cover a previous customer of the respondent.
Finally, the fact that Respondent did not reply to the Complaint, even though it received the Complaint sent by courier, is an additional element supporting a finding of bad faith.
In view of the above, the Administrative Panel finds that Responded registered and used the Domain Name in bad faith, so that the third condition of paragraph 4(a) of the Policy is satisfied.
In the Complaint, Complainant mentioned that on May 6, 2003, its attorney had introduced "a complaint" against Koznet Internet Hizmetleri to the office of the Prosecutor of Istanbul.
According to paragraph 18(a) of the Rules, in the event of any legal proceedings initiated prior to or during an administrative proceeding in respect of a domain name dispute that is the subject of the complaint, the Panel shall have the discretion to decide whether to suspend or terminate the administrative proceeding or to proceed to a decision.
In its Panel Order No. 1, the Administrative Panel requested Complainant to provide more information about the initiated proceedings, in order to determine whether it might be appropriate to suspend or terminate the administrative proceeding. In its Reply of August 4, 2003, Complainant clarified that the proceeding at issue was a criminal proceeding. It further explained that the purpose of the criminal complaint was to prevent the use of the Domain Name by Respondent, but did not aim at the transfer of the Domain Name.
In view of the fact that the proceeding initiated on May 6, 2003, in Turkey will not address the question of the ownership of the Domain Name, the Administrative Panel has not found necessary to suspend or terminate the present administrative proceeding, and has decided to proceed with a decision, in view of the fact that the procedures at issue do not have the same object.
For all the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the domain name <tuyap.com> be transferred to the Complainant.

matches: v. v. v. v. v. v.


text:
41. 17139. Adulteration of butter. U. S. v. 14 Tubs of Butter. Decree of condemnation and forfeiture. Product released under bond.
42. 17141. Adulteration and misbranding of butter. U. S. v. 87 Cases, et al., of Butter. Default decree of condemnation, forfeiture, and destruction.
43. 17143. Misbranding of butter. U. S. v. 10 Cases of Butter. Decree of condemnation and forfeiture. Product released under bond.
44. 17188. Misbranding of butter. U. S. v. 10 Cases of Butter. Default decree of condemnation, forfeiture, and destruction.
45. 17192. Misbranding of butter. U. S. v. 12 Cases of Butter. Default decree of condemnation, forfeiture, and destruction.
46. 17194. Misbranding of butter. U. S. v. 5 Cases of Butter. Default decree of condemnation, forfeiture, and destruction.
47. 17230. Misbranding and alleged adulteration of butter. U. S. v. 8 Cases, et al., of Butter. Decrees of condemnation and forfeiture. Product released under bond.
48. 17238. Adulteration of butter. U. S. v. Walter Hans Kruger (Bruce Creamery and Bruce Creamery Co.). Plea of guilty. Fine, $25.
Walter Hans Kruger, trading as Bruce Creamery and Bruce Creamery Co.
49. 17255. Adulteration and misbranding of butter. U. S. v. 60 Tubs of Butter. Consent decree entered. Product ordered released under bond to be reprocessed.
Universal Carloading & Distributing Co.
50. 17256. Adulteration and misbranding of butter. U. S. v. 25 Tubs, et al., of Butter. Consent decrees of condemnation and forfeiture. Product released under bond.

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text:
Vysokova, O. A. ; Kalinina, T. A. ; Kanwugu, O. N. ; Cherepanova, O. E. ; Kochubei, A. A. ; Koksharova, M. K. ; Glukhareva, T. V. / Comparative in vitro study of the growth regulative activity of potato microplants under the influence of derivatives 1,2,3-triazolo-1,3,4-thiadiazines. Modern Synthetic Methodologies for Creating Drugs and Functional Materials, MOSM 2018: Proceedings of the II International. редактор / Sougata Santra ; Grigory V. Zyryanov ; Leila K. Sadieva. Том 2063 American Institute of Physics Inc., 2019.
Comparative in vitro study of the growth regulative activity of potato microplants under the influence of derivatives 1,2,3-triazolo-1,3,4-thiadiazines. / Vysokova, O. A.; Kalinina, T. A.; Kanwugu, O. N.; Cherepanova, O. E.; Kochubei, A. A.; Koksharova, M. K.; Glukhareva, T. V.
Modern Synthetic Methodologies for Creating Drugs and Functional Materials, MOSM 2018: Proceedings of the II International. ред. / Sougata Santra; Grigory V. Zyryanov; Leila K. Sadieva. Том 2063 American Institute of Physics Inc., 2019. 040065.
AU - Vysokova, O. A.
AU - Kalinina, T. A.
AU - Kanwugu, O. N.
AU - Cherepanova, O. E.
AU - Kochubei, A. A.
AU - Koksharova, M. K.
AU - Glukhareva, T. V.
A2 - Zyryanov, Grigory V.
A2 - Sadieva, Leila K.
PB - American Institute of Physics Inc.

matches: V. V. V. V. V. V.


On March 7, 1980, inmates of the South Dakota State Penitentiary in Sioux Falls, South Dakota filed a class action in the U.S. District Court for the District of South Dakota under 42 U.S.C. § 1983 against the South Dakota Department of Corrections. The plaintiffs, represented by the National Prison Project of the American Civil Liberties Union and by East River Legal Services, asked the court for class certification and declaratory and injunctive relief, alleging that their constitutional rights had been violated by the conditions of their confinement. Specifically, they complained of fire hazards, unsanitary food, work safety hazards, poor ventilation, inadequate plumbing, inadequate medical care, inadequate dental care, inadequate psychological care, overcrowding, lack of hot water, lack of heat in winter, inadequate law library, lack of recreation and exercise, and inadequate grievance procedures.
On May 31, 1984, the district court (Judge Donald J. Porter) granted declaratory and injunctive relief to the plaintiffs, ordering the defendants stop double-celling inmates and to file a plan to fix the other problems within 120 days. Cody v. Hilliard, 599 F.Supp. 1025 (D.S.D. 1984). The defendants appealed. On October 28, 1986, the U.S. Court of Appeals for the Eighth Circuit (Judge Gerald W. Heaney) affirmed the district court's decision. Cody v. Hilliard, 799 F.2d 447 (8th Cir. 1986).
The defendants asked the Eighth Circuit for a rehearing en banc, and on October 28, 1986, the Eighth Circuit agreed to rehear the case. Cody v. Hilliard, 804 F.2d 440 (8th Cir. 1986). On October 6, 1987, the en banc Eighth Circuit (Judge Pasco Middleton Bowman II) reversed the district court's order forbidding double-celling, declaring that the practice was not unconstitutional, but affirmed all other orders of the district court. Cody v. Hilliard, 830 F.2d 912 (8th Cir. 1987). The plaintiffs appealed. On February 29, 1988, the U.S. Supreme Court declined to hear the appeal. Cody v. Hilliard, 485 U.S. 906 (1988).
On July 8, 1985, the district court (Judge Porter) issued a consent decree in the case, addressing issues such as prison environmental concerns, fire safety, medical care, psychological care, prisoners' access to courts, and food preparation and sanitation. In the years that followed, the defendants paid attorneys' fees to the plaintiffs on multiple occasions, never disputing the plaintiffs' entitlement to fees.
On April 16, 1996, the defendants asked the district court to terminate the consent decree, arguing that they were in substantial compliance. On March 13, 1997, the district court (Judge Richard H. Battey) dissolved the consent decree and vacated all supplemental orders. The plaintiffs appealed. On March 27, 1998, the Eighth Circuit (Judge John R. Gibson) reversed the decision to dissolve the decree and remanded the case back to the district court, holding that the dissolution of the decree was not supported by sufficient findings or an articulation of basis for the decision. Cody v. Hilliard, 139 F.3d 1197 (8th Cir. 1998).
On February 17, 2000, the district court (Judge Lawrence L. Piersol) approved a private settlement agreement between the parties and dismissed the case without prejudice. Cody v. Hilliard, 88 F.Supp.2d 1049 (D.S.D. 2000). According to Jude Piersol’s opinion, the settlement agreement contained more specific language and guidelines than the 1985 consent decree and established procedures for continued monitoring of prison conditions. The defendants agreed to monthly self-inspections for fire safety and yearly OSHA-type inspections of all shop areas. The settlement agreement provided more relief with regards to the tuberculosis isolation provision, quality control provision, and specific shop provisions.
The plaintiffs asked the district court to award them attorneys' fees. On November 15, 2000, the district court (Judge Piersol) awarded $106,877.74 in attorneys' fees to the plaintiffs. The defendants appealed. On September 11, 2002, the Eighth Circuit (Judge Gibson) affirmed the fee award. Cody v. Hilliard, 304 F.3d 767 (8th Cir. 2002). The case is now closed.


Respondents are a class of alien juveniles arrested by the Immigration and Naturalization Service (INS) on suspicion of being deportable, and then detained pending deportation hearings pursuant to a regulation, [113 S.Ct. 1442] promulgated in 1988 and codified at 8 CFR § 242.24, which provides for the release of detained minors only to their parents, close relatives, or legal guardians, except in unusual and compelling circumstances. An immigration judge will review the initial deportability and custody determinations upon request by the juvenile. § 242.2(d). Pursuant to a consent decree entered earlier in the litigation, juveniles who are not released must be placed in juvenile care facilities that meet or exceed state licensing requirements for the provision of services to dependent children. Respondents contend that they have a right under the Constitution and immigration laws to be routinely released into the custody of other "responsible adults." The District Court invalidated the regulatory scheme on unspecified due process grounds, ordering that "responsible adult part[ies]" be added to the list of persons to whom a juvenile must be released and requiring that a hearing before an immigration judge be held automatically, whether or not the juvenile requests it. The Court of Appeals, en banc, affirmed.
1. Because this is a facial challenge to the regulation, respondents must establish that no set of circumstances exists under which the regulation would be valid. United States v. Salerno, 481 U.S. 739, 745. Pp. 300-301.
2. Regulation 242.24, on its face, does not violate the Due Process Clause. Pp. 301-309.
States v. Salerno, supra, at 751. It is therefore sufficient that the regulation is rationally connected to the government's interest in preserving and promoting the welfare of detained juveniles, and is not punitive, since it is not excessive in relation to that valid purpose. Nor does each unaccompanied juvenile have a substantive right to an individualized hearing on whether private placement would be in his "best interests." Governmental custody must meet minimum standards, as the consent decree indicates it does here, but the decision to exceed those standards is a policy judgment, not a constitutional imperative. Any remaining constitutional doubts are eliminated by the fact that almost all respondents are aliens suspected of being deportable, a class that can be detained, and over which Congress has granted the Attorney General broad discretion regarding detention. 8 U.S.C. § 1252(a)(1). Pp. 301-301.
(b) Existing INS procedures provide alien juveniles with "procedural due process." Respondents' demand for an individualized custody hearing for each detained alien juvenile is merely the "substantive due process" argument recast in procedural terms. Nor are the procedures faulty because they do not require automatic review by an immigration judge of initial deportability and custody determinations. In the context of this facial challenge, providing the right to review suffices. It has not been shown that all of the juveniles detained are too young or ignorant to exercise that right; any waiver of a hearing is revocable; and there is no evidence of excessive delay in holding hearings when requested. Pp. 306-309.
3. The regulation does not exceed the scope of the Attorney General's discretion to continue custody over arrested aliens under 8 U.S.C. § 1252(a)(1). It rationally pursues a purpose that is lawful for the INS to seek, striking a balance between the INS's concern that the juveniles' welfare will not permit their release to just any adult and the INS's [113 S.Ct. 1443] assessment that it has neither the expertise nor the resources to conduct home studies for individualized placements. The list of approved custodians reflects the traditional view that parents and close relatives are competent custodians, and otherwise defers to the States' proficiency in the field of child custody. The regulation is not motivated by administrative convenience; its use of presumptions and generic rules is reasonable; and the period of detention that may result is limited by the pending deportation hearing, which must be concluded with reasonable dispatch to avoid habeas corpus. Pp. 309-315.
942 F.2d 1352 (CA9 1991), reversed and remanded.
joined. O'CONNOR, J., filed a concurring opinion, in which SOUTER, J., joine, post, p. 315. STEVENS, J., filed a dissenting opinion, in which BLACKMUN, J., joined, post, p. 320.
Over the past decade, the Immigration and Naturalization Service (INS) has arrested increasing numbers of alien juveniles who are not accompanied by their parents or other related adults. Respondents, a class of alien juveniles so arrested and held in INS custody pending their deportation hearings, contend that the Constitution and immigration laws require them to be released into the custody of "responsible adults."
[a]n alien generally . . . should not be detained or required to post bond except on a finding that he is a threat to the national security . . . or that he is a poor bail risk.
Matter of Patel, 15 I. & N.Dec. 666 (1976); cf. INS v. National Center for Immigrants' Rights (NCIR), 502 U.S. 183 (1991) (upholding INS regulation imposing conditions upon release). In the case of arrested alien juveniles, however, the INS cannot simply send them off into the night on bond or recognizance. The parties to the present suit agree that the Service must assure itself that someone will care for those minors pending resolution of their deportation proceedings. That is easily done when the juvenile's parents have also been detained and the family can be released together; it becomes complicated when the juveniles are arrested alone, i.e., unaccompanied by a parent, guardian, or other related adult. This problem is a serious one, since the INS arrests thousands of alien juveniles each year (more than 8,500 in 1990 alone) -- as many as 70% of them unaccompanied. Brief for Petitioners 8. Most of these minors are boys in their mid-teens, but perhaps 15% are girls, and the same percentage 14 years of age or younger. See id. at 9, n. 12; App. to Pet. for Cert. 177a.
[113 S.Ct. 1444] For a number of years, the problem was apparently dealt with on a regional and ad hoc basis, with some INS offices releasing unaccompanied alien juveniles not only to their parents but also to a range of other adults and organizations.
In 1984, responding to the increased flow of unaccompanied juvenile aliens into California, the INS Western Regional Office adopted a policy of limiting the release of detained minors to "`a parent or lawful guardian,'" except in "`unusual and extraordinary cases,'" when the juvenile could be released to "`a responsible individual who agrees to provide care and be responsible for the welfare and wellbeing of the child.'" See Flores v. Meese, 934 F.2d 991, 994 (CA9 1990) (quoting policy), vacated, 942 F.2d 1352 (CA9 1991) (en banc).
In July of the following year, the four respondents filed an action in the District Court for the Central District of California on behalf of a class, later certified by the court, consisting of all aliens under the age of 18 who are detained by the INS Western Region because "a parent or legal guardian fails to personally appear to take custody of them." App. 29. The complaint raised seven claims, the first two challenging the Western Region release policy (on constitutional, statutory, and international law grounds), and the final five challenging the conditions of the juveniles' detention.