The U.S. Environmental Protection Agency (EPA) released on August 2, 2011, the pre-publication copy of the final Toxic Substances Control Act (TSCA) Chemical Data Reporting (CDR) Rule, previously referred to as the Inventory Update Reporting (IUR) Modifications Rule. The rule was published on August 16, 2011. 76 Fed. Reg. 50816. Bergeson & Campbell, P.C. will host a webinar on the CDR Rule in mid to late September and will provide under separate cover webinar registration details.
EPA states that the CDR Rule is intended to enable EPA to collect and publish information on the manufacturing, processing, and use of commercial chemical substances and mixtures on the TSCA Chemical Substance Inventory (TSCA Inventory). A general discussion of the CDR Rule (e.g., the key components of the CDR Rule, how reporting will change from prior IUR reporting, potential issues with these changes) was discussed in our August 3, 2011, memorandum, available online. This memorandum provides a more in-depth analysis for the most significant, and sometimes controversial, issues presented by the CDR Rule.
As background, it is important to note that the IUR, now CDR Rule, has been through several iterations since it was first introduced in 1986. On January 7, 2003, EPA extensively amended the IUR, including, for example, extending reporting requirements to include inorganic chemicals, commencing collection of processing and use information, raising the reporting threshold from 10,000 to 25,000 pounds manufacture/import per site, and reducing the frequency of reporting from one out of every four to one out of every five years.
On August 13, 2010, EPA proposed TSCA IUR modifications. 75 Fed. Reg. 49656. One year later, after lengthy review at the Office of Management and Budget (OMB), EPA has issued the final, newly-renamed CDR Rule. Some will rejoice in the fact that EPA declined to implement some of the more far-reaching and contentious provisions considered in the proposal, including the reduction of the reporting threshold, additional reporting requirements for processors, retroactive production volume reporting, and Section 5 premanufacture notification (PMN) reporting aspects. EPA's decision to relent on these topics may indicate that compromises were reached with OMB on reporting burdens that allowed the CDR Rule to be issued in its current form.
Under the final CDR Rule, for the 2012 reporting period, manufacturers (including importers) are required to report if the manufacture/import volume of a chemical substance on the TSCA Inventory during the principal reporting year (i.e., 2011) meets or exceeds 25,000 pounds per site during the principal reporting year (i.e., calendar year 2011) and is not otherwise exempt. 40 C.F.R. § 710.48(a) (to be codified in the new 40 C.F.R. Part 711 as 40 C.F.R. § 711.8(a)). This is significant in that only one calendar year of information must be reviewed to determine if reporting is required, in contrast to the method for determining reporting obligations for 2016, which requires manufacturers and importers to review production volumes for all calendar years since the last principal reporting year, as discussed below.
[I]t has been the Agency's position since at least 1991 that, in order for byproduct manufacture to qualify for the 40 CFR 720.30(g)(3) exemption, "the component to be extracted must be already existing as a distinct chemical substance in the waste stream." When the chemical substance present in the byproduct and the chemical substance extracted from the byproduct are distinct chemical substances, neither the manufacture of the byproduct nor the manufacture of the extracted chemical substance qualify for the 40 CFR 720.30(g)(3) exemption.
Despite EPA's statements that its rules and guidance have consistently interpreted the reporting requirements of "byproducts," this issue became more complicated after the IUR reporting requirements expanded to inorganic chemical substances and raised questions regarding, for example, the interplay between activities (purification versus extraction) involving inorganic chemical substances and the byproduct exemption for both PMN and CDR purposes. It appears that this issue continues to lack clarity with regard to whether certain byproducts should be listed on the TSCA Inventory and/or subject to CDR reporting and whether EPA has interpreted such terms consistently and in a way countenanced by TSCA.
(2) That other person specifies the identity of the chemical substance and controls the total amount produced and the basic technology for the plant process, then that chemical substance is comanufactured by the producing manufacturer and the person contracting for such production.
Commenters argued that this definition was inconsistent with past definitions, overly-broad, and confusing. EPA states that this new definition is intended to "improve the information submitted through the CDR rule." EPA states that this definition is consistent with other definitions of "manufacture" in prior IUR reporting and includes elements from the definition of "manufacturer" under EPA's PMN regulations (40 C.F.R. § 720.3). To the extent that this definition includes references to extraction, issues similar to those raised for byproducts will be equally applicable here.
In addition to changing the definition of "manufacture," EPA has added a paragraph (c) to the regulation at 40 C.F.R. § 711.22 regarding "duplicative reporting" to clarify the reporting relationship between the contracting company and the toll manufacturer. EPA states that the contracting company and the toll manufacturer "should confer with each other to avoid duplicate reporting, and both the contracting company and the toll manufacturer are liable if no report is made." EPA reportedly added this language because it agreed with comments submitted that its proposed language -- that the contracting company is "primarily responsible" but the toll manufacturer must report in the event the contracting company does not report -- was confusing. Given the potential disparity between the revised language regarding reporting obligations and the complex relationships that may exist between contracting companies and toll manufacturers, it is clear that parties will need to agree among themselves on who should submit CDR Rule reports for which sites in particular.
A potentially surprising inclusion in the list of parties required to report are distribution centers that serve portable manufacturing units. EPA has expressed its view that units that engage in chemical reactions via portable manufacturing units are obligated to report under the CDR Rule if they meet the reporting threshold. In the August 2010 proposed rulemaking, EPA provided examples of what may constitute a "portable manufacturing unit." These examples include building or road construction projects that use tanks to produce calcium hydroxide slurry and agricultural units that remotely produce ammonium hydroxide for land use.
What Chemical Substances Are Subject to Reporting?
When the proposed rule was published in August 2010, the expectation was the next reporting cycle would be in 2011, which would include information collected from 2010. That reporting schedule was shifted in the final rule, with reporting on information collected in 2011 to occur in 2012. Presumably, EPA viewed this change as necessary to give industry sufficient time to prepare for reporting. The unfortunate result of this change, however, is that industry has potentially wasted efforts collecting process and use information in 2010 believing that such information would be required for reporting in 2011. It is unclear whether companies anticipated this shift in principal reporting year from 2010 to 2011 and maintained information collection systems for 2011 production, process, and use information.
The 2012 submission period, during which 2011 manufacturing, processing, and use information and 2010 production volume information would be reported, is scheduled to occur February 1, 2012, to June 30, 2012. Subsequent recurring submission periods will be from June 1 to September 30 at four-year intervals, beginning in 2016. 40 C.F.R. § 710.53 (to be codified in the new 40 C.F.R. Part 711 as 40 C.F.R. § 711.20). This means, of course, that EPA has again changed the reporting frequency back to every four years from every five years.
The timing for 2012 reporting instituted by EPA is significant, as EPA has actually shortened the timeframe within which industry must report. Specifically, for the 2012 report, EPA has set the reporting deadline from between February and June 2012. Since the last date of processing and use information to be collected is December 31, 2011, EPA has provided only two to six months between the last day of data collection and the submission deadline. The timeframe originally proposed in EPA's rule, and that which will apply for 2016 and subsequent reporting periods, was from June to September. The end result is that industry has lost three months to prepare these first reports under the new CDR Rule.
What Is the Standard for Reporting Information?
Starting with the 2012 reporting period, EPA is replacing the "readily obtainable" reporting standard used for the reporting of processing and use information with the "known to or reasonably ascertainable by" reporting standard. 40 C.F.R. § 710.52(c)(4) (to be codified in the new 40 C.F.R. Part 711 as 40 C.F.R. § 711.15(b)(4)). This change was widely anticipated. The new reporting standard is more rigorous than the previous "readily obtainable" standard, as it is now defined to include "all information in a person's possession or control, plus all information that a reasonable person similarly situated might be expected to possess, control, or know." By contrast, EPA states that the "readily obtainable" standard "does not even cover all the information in a submitter's possession or control."
Under the standard, a submitter would therefore prepare its report about the processing and use of a chemical substance it manufactures (including imports), without confining its inquiry solely to what is known to managerial and supervisory employees, but would also be expected to review information which the manufacturer (including importer) may have in their possession or control, plus all information that a reasonable person similarly situated might be expected to possess, control, or know. The inquiry would be as extensive as a reasonable person, similarly situated, might be expected to perform. The standard does not necessarily require that the manufacturer conduct an exhaustive survey of all employees.
"Known to or reasonably ascertainable" information includes, but is not limited to, information that may be possessed by employees or other agents of the company reporting under the CDR rule, including persons involved in the research, development, manufacturing, or marketing of a chemical substance and includes knowledge gained through discussions, symposia, and technical publications. Examples of types of information that are considered to be in a person's possession or control, or that a reasonable person similarly situated might be expected to posses, control, or know, include files maintained by the submitter, such as marketing studies, sales reports, or customer surveys; information contained in standard references, such as MSDSs, that contain use information or concentrations of chemicals in mixtures; and information from the CASRN and from the D&B number.
A Company would not fulfill its duties under this standard by reporting processing and use information as "not known or reasonably ascertainable" if it did not endeavor to supplement the information it previously knew, by asking its largest customer for process and use information, when that information was the type usually maintained by the Company but was lost due to a computer malfunction.
A Company would not fulfill its duties under this standard by reporting processing and use information as "not known or reasonably ascertainable" if it did not review its largest customer's website to fill data gaps in how a chemical substance is processed and used, when that information was never maintained previously by the Company but is typically collected from comparable manufacturers as part of reasonable business practices.
A Company would not fulfill its duties under this standard by reporting processing and use information as "not known or reasonably ascertainable" when the Company had all seasonable marketing data on changes in use pattern but for one season, and could have reconstructed that missing marketing data by contacting its largest customer and requesting such information.
A Company would have fulfilled its duties under this standard by reporting information as "not known or reasonably ascertainable" when the Company has never maintained information on how a chemical substance is processed or used by its customers (even though it is typical for comparable manufacturers to collect such information as part of their reasonable business practices), its major customer is unwilling to supply this information, and the only way for the Company to obtain such information would be to send a survey to its ten minor customers.
EPA clarifies that submitters are not required to conduct a new or additional customer survey to distribute among multiple customers under this standard, so that if "particular information cannot be derived or reasonably estimated from the information available to the company without conducting further customer surveys, it is not 'known to or reasonably ascertainable' to the submitter for purposes of the CDR." EPA's clarification that customer surveys are not needed seems to be at odds with other EPA guidance, which expresses EPA's view that submitters must search for information that would be "available after a reasonable inquiry within the organizations" and that inquiries under this standard "may entail inquiries outside the organization to fill gaps in the submitter's knowledge." EPA also states that the standard for reporting should be an objective one -- the level of diligence that a reasonable person, similarly situated, might expect to undertake.
Despite this guidance, these hypothetical examples and EPA's preamble text present a host of issues that will likely require additional guidance and greater clarity. For example, what EPA means by a company's "largest customer," and what information collections are considered "typical for comparable manufacturers," are important delimiting factors and yet are undefined terms.
If an importer does not know, or can't reasonably ascertain that a particular chemical substance is present in a mixture, it is not required to report the chemical substance. If an MSDS makes no mention of the presence of an ingredient, and the importer does not otherwise know that the ingredient is present, EPA would generally agree that the importer does not know, and cannot reasonably ascertain that it is importing that ingredient. Therefore, no IUR report for that ingredient would be required. In addition, manufacturers (including importers) are not required to report impurities.
What Manufacturing-Related Information Must Be Reported for 2012?
For a domestically manufactured substance, if the volume would have been considered to be site-limited, then the chemical substance is used on site. If the chemical substance is domestically manufactured, temporarily stored, and then packaged for shipment off of the site, that volume would not be considered "used at the reporting site." For an imported substance, any use at the importing site (e.g., consumed in a reaction or cross-linked or cured in an article) would be considered "used at the reporting site."
Volume Directly Exported: Companies must report the volume of the chemical substance directly exported and not domestically processed or used. EPA states that a chemical substance that "is processed in any way (e.g., combined with other chemical substances to form a mixture)" or that is sent to a distributor who then exports it, is not considered "directly exported."
Volume Recycled, Remanufactured, Reprocessed, or Reused: Despite concerns raised that terms like "recycle" are not well defined and will lead to difficulties in determining reporting obligations, EPA will require manufacturers to check a box to indicate whether a chemical substance they manufactured, such as a byproduct, which might otherwise be disposed of as waste, was or is expected to be recycled. EPA disagreed that a precise definition of "recycle" is needed, and asked submitters instead to "indicate, to the extent that they know or can reasonably ascertain, whether the reported volume of the chemical substance that they manufactured, which would otherwise be disposed of as waste, was or is expected to be recycled, remanufactured, reprocessed, or reused, as those terms are understood by the submitter." Because the term "reworked" could be applied too broadly, EPA removed that term from the list of recycling synonyms.
In addition to the 2011 information outlined above, companies must also report production volume for calendar year 2010.
What Processing and Use-Related Information Must Be Reported for 2012?
The new processing and use-related information required to be reported is set forth in 40 C.F.R. § 710.52(c)(4) (to be codified in the new 40 C.F.R. Part 711 as 40 C.F.R. § 711.15(b)(4)). For 2012 reporting, processing and use-related information required to be reported includes, for the principal reporting year only (i.e., 2011), processing and use information of all reportable chemical substances manufactured at 100,000 pounds or more per site, unless otherwise exempted. This means that EPA is amending 40 C.F.R. § 710.52(c) (to be codified in the new 40 C.F.R. Part 711 as 40 C.F.R. § 711.15(b)) to reduce the reporting threshold for processing and use information from 300,000 to 100,000 pounds per chemical substance for the 2012 reporting period.
Among the new processing and use information changes are the requirement to report consumer and commercial product categories separately to distinguish between the use types; to report consumer and commercial use information using a revised list of consumer and commercial product category codes; and to report the total number of commercial workers, including "those at sites not under the submitter's control," that are reasonably likely to be exposed while using the reportable chemical substance, with respect to each commercial use. EPA states that it had difficulty evaluating exposures from commercial workers and consumers based on the processing and use data it obtained during the 2006 IUR because that data did not differentiate between these populations. EPA acknowledges, however, that it received comment opposing this requirement because, according to EPA, some companies "were too removed from the consumer and commercial uses to have a clear understanding of the uses at that level of distinction, especially for commodity chemical substances with a large number of uses." EPA has attempted to reduce the reporting burden regarding the number of commercial workers by requiring that this information only be reported in ranges.
EPA's decision to add a reporting requirement for number of workers for commercial uses, even in ranges, is significant and may prove particularly challenging for industry to report. While some of this information may be available, on the Internet for example, there may be many cases where the breadth of the uses of the chemical and the number of potential sites and customers could require submitters to utilize large amounts of time, resources, and energy to collect such information, analyze it, and report it. In addition, it is unclear how EPA may react if companies opt to rely on "worst case" scenario values that may actually distort commercial uses and thus may be viewed by EPA as over-reporting. Indeed, EPA has issued penalties to companies that reported values higher than actual in past IUR reporting. The "not known or reasonably ascertainable" standard discussed above thus will be particularly instructive and important to understand with respect to these reporting elements.
While claims for confidentiality for chemical identity and site identity previously required substantiation, a new requirement starting with the 2012 reporting period is the need to provide upfront substantiation for each processing and use data element claimed as CBI if the submitter has reason to believe that release of the information would reveal trade secrets, or confidential commercial or financial information. 40 C.F.R. § 710.58 (to be codified in the new 40 C.F.R. Part 711 as 40 C.F.R. § 711.30). The substantiation questions for processing and use information (to be codified at 40 C.F.R. § 711.30(d)) have been modified from the proposed rule in one respect in recognition that there are circumstances when the release of information about a particular use could harm the competitive position of the submitter's customer. Thus, the new substantiation questions expressly allow a submitter to identify any harmful effect to a customer's competitive position in addition to the submitter's competitive position when describing competitive harm. To reduce further the potential for "unwarranted" CBI claims, EPA also states that submitters cannot claim as confidential any processing and use information identified as "not known to or reasonably ascertainable by."
EPA also clarifies some CBI substantiation points. For example, EPA states that company name and site identity are separate CBI claims, and in some cases one type of claim may be justified while the other is not. EPA will not "impute the existence of a CBI claim for site identity from a CBI claim for company identity, even if the company name appears within the site identity information."
EPA further states that a submitter must provide separate substantiation for any site identity CBI claims associated with each chemical substance. Thus, "if the submitter is reporting for five chemical substances and wishes to claim its site information confidential for three of the five chemical substances, it must assert the claim and provide separate upfront substantiation three times, once for each of the three chemical substances."
While EPA references 18 U.S.C. § 1001 in other contexts (e.g., persons that file false or misleading "Affirmation of Non-Multinational Status" forms to EPA under FIFRA Section 10(g) can be punishable under 18 U.S.C. § 1001, false or misleading statements with regard to TSCA GLP standard can be punishable under 18 U.S.C. § 1001 (40 C.F.R. § 792.17)), the inclusion of this language in the final rule may telegraph EPA's heightened scrutiny of CBI substantiation claims, perhaps as part of EPA's enhanced chemical transparency campaign.
EPA states that there are three circumstances when EPA will release CDR information claimed as CBI without further notice to the submitter. These include: a CBI claim made for the identity of a chemical substance already listed on the non-confidential portion of the TSCA Chemical Inventory; a submission lacking the certification signed and dated by the authorized official for the submitter (as required under the regulation to be codified at 40 C.F.R. § 711.15(b)(1)); or a claim requiring upfront substantiation that is not accompanied by the requisite substantiation.
What Must Be Reported for 2016?
While the 2012 reporting period is scheduled for February 1, 2012, to June 30, 2012, subsequent recurring reporting periods will be from June 1 to September 30 at four-year intervals, beginning in 2016.
EPA is finalizing this change because of the mounting evidence that many chemical substances, even larger production volume chemical substances, often experience wide fluctuations in production volume from year to year. (See Unit III.D.1. of the proposed rule (Ref. 1).) This can result in the production volume of a chemical substance exceeding the threshold for several years, then falling below the threshold during the CDR principal reporting year. EPA believes that using production volume reporting for all years since the last principal reporting year to determine reporting obligations will yield a much more accurate picture of the chemical substances currently in commerce, ensuring proper review under EPA's risk screening, assessment, and management activities and providing better information to the public.
Reporting Periods February 1 to June 30, 2012 June 1 to September 30, 2016 (and same timeframes in subsequent reporting years, 2020, 2024, etc.) To be codified at 40 C.F.R. § 711.20 EPA determined that reporting every five years is too infrequent and does not provide enough data to sufficiently cover the needs of EPA or the public.
Method to Determine Whether a Manufacturer/ Importer Is Subject to CDR Reporting For 2012, reporting is required if the manufacture/ import volume of a chemical substance meets or exceeds 25,000 pounds per site during the principal reporting year (e.g., 2011). Starting with 2016, reporting is required if the manufacture/ import volume of a chemical substance meets or exceeds 25,000 pounds per site for any calendar year since the last principal reporting year. EPA is amending 40 C.F.R. § 710.48(a) (to be codified in the new 40 CFR Part 711 as 40 C.F.R. § 711.8(a)) EPA believes that using production volume reporting for all years since the last principal reporting year to determine reporting obligations will yield a much more accurate picture of the chemical substances currently in commerce.
Manufacturing Threshold for Chemicals Subject to Certain TSCA Rules/Orders (Sections 5, 6, 7) For 2012, there is a 25,000 pound per site threshold for specific chemical substances that are the subject of particular TSCA rules and/or orders. Starting with 2016, the new reporting threshold for these chemical substances is 2,500 pounds per site. EPA is amending 40 C.F.R. § 710.48(a) (to be codified in the new 40 C.F.R. Part 711 as 40 C.F.R. § 711.8(b)) This new reporting threshold is different from the proposed rule, under which reporting would have applied regardless of the production volume. EPA decided to set a de minimis threshold and to delay its implementation for several reasons identified by commenters (e.g., "the expense and burden of collecting the information, and difficulty in knowing whether low-concentration chemical substances are present in formulated mixtures").
Production Volume Reported For 2012, only report production volumes for calendar year 2010. Starting with 2016, report production volumes for each year since the last principal reporting year (i.e., for 2016, report for 2012, 2013, 2014, 2015). EPA is amending 40 C.F.R. § 710.52(c) (to be codified in the new 40 C.F.R. Part 711 as 40 C.F.R. § 711.15(b)) The requirement to report volumes for multiple years had been proposed to apply since 2005, but in the final CDR Rule it applies only for 2016 and beyond.
Processing and Use Threshold Lowered for the 2012 reporting period from 300,000 pounds per site to 100,000 pounds per site. Starting with 2016, the reporting threshold for processing and use information will be 25,000 pounds per site. EPA is amending 40 C.F.R. § 710.52(c) (to be codified in the new 40 C.F.R. Part 711 as 40 C.F.R. § 711.15(b)) There will be no separate threshold for the reporting of production and use information after 2012 -- the applicable reporting threshold will be the same as for other types of information (25,000 pounds per site).
How Must Information Be Submitted?
Starting with the 2012 reporting period, EPA will require the use of its electronic reporting tool, e-CDRweb, to submit all CDR information through the Internet. EPA states that "requiring the use of electronic reporting will ensure that data are available in a timely manner and will reduce data entry errors, thereby increasing the usability and reliability of the data for EPA and other Federal agencies. It will also help to fulfill the EPA Administrator's commitment to increase public access to information on chemical substances."
While there has been general support to move toward electronic reporting, there are issues to be addressed, particularly regarding ensuring that information claimed as CBI is protected and the use of electronic signatures. EPA responded to concerns raised during the comment period regarding the need for multiple notarized signatures on the Electronic Signature Agreement (ESA) Form by determining that requiring a notarized signature as part of the ESA Form is no longer necessary.
EPA held an information workshop and webinar on November 30, 2010, to help companies develop a better understanding of the EPA's Central Data Exchange (CDX) registration process and the e-CDRweb electronic reporting tool. A recording of the workshop and a summary of the questions and answers is available on the IUR website (online). EPA also intends to conduct a webinar on September 23, 2011, to demonstrate e-CDRweb. According to EPA, those interested will be able to test the tool during the following week. The test version will not be usable for 2012 submissions. More information is available online.
Given the additional complexity of the information to be reported and the shortened reporting cycle, it is reasonable to expect that the vast majority of impacted entities will wait until the last few weeks in the reporting cycle to submit information. Despite numerous concerns raised by industry in comments, EPA has not offered to our knowledge a contingency plan should the electronic reporting system crash due to a mass rush of submissions or large number of parties trying to sign onto the system. EPA may well have a back-up plan, but we hope using it proves to be unnecessary.


were held, and its moneys received and disbursed, and the corporate seal kept.
A statute of Missouri enacts that "shares of stock and all other interests held in steamboats, keel boats, wharf boats, and all other vessels," shall be taxable for state purposes, and by its charter, the City of St. Louis has authority to tax all property within the city so taxable.
In this state of statutory enactment, the city authorities of St. Louis laid a tax on the value of all ferry boats used by the Wiggins Ferry Company in ferrying passengers and cargo on the Mississippi River between the City of St. Louis, Missouri, and East St. Louis, in Illinois, on the opposite shore. The ferry company refused to pay the tax on the ground that these boats were not "property within the city," and the question was whether they were so or not.
ferry boats, for which wharf boats the city charged the company a stipulated annual wharfage, which was also paid. The company was assessed and taxed for the value of these wharf boats within the city limits, in addition to the ferry license and wharfage.
The stockholders of the ferry company resided mainly in St. Louis. Some, however, resided in Ohio, some in New York, and some elsewhere, but none in Illinois. The meetings of the company as a corporation for the election of directors had been generally held in Illinois, but the meetings of the directors for the election of its officers and appointment of its employees had been generally held in St. Louis, Missouri. All the principal business of the company done by its directors, superintendent, and other agents, had been transacted in St. Louis. The money collected and received by it for ferriages and other dues were kept in St. Louis, and the books of the company were kept there, and some of the disbursements of the company were there made by its treasurer. The personal property belonging to the company, assessed for taxes by the city, for which these suits were brought, consisted solely of its already mentioned ferry boats. On these as well as on its other property it was duly assessed in Illinois, and paid taxes there. The ferry boats were enrolled at St. Louis under the laws of the United States; that is to say, under the acts of 1789 and 1792, which require every vessel to be registered in the district to which she belongs, and declare that her home port shall be that at or near to which her owner resides.
Upon this same state of facts, the Supreme Court of Missouri, in City of St. Louis v. Wiggins Ferry Company, [Footnote 2] had adjudged that the company was bound to pay the tax.
within it. The fact that the principal business office of the company was in St. Louis, and that the ferry boats were enrolled at the port of St. Louis, under the United States laws, did not, as the court below considered, essentially change the case. Judgment having been accordingly entered for the ferry company, the city excepted to the law as declared by the court upon the facts, and tendered its bill of exceptions, which was signed and sealed.
The plaintiff in error instituted five suits in the St. Louis Circuit Court for the recovery of taxes alleged to be due from the ferry company to the city. Upon the petition of the company they were removed into the circuit court of the United States for that district. In that court, by the consent of the parties, the causes were consolidated and thereafter proceeded to trial as one case. The counsel upon both sides entered into a written stipulation waiving a jury, and the cause was submitted to the court, pursuant to the act of Congress of March 3, 1865. The court found the facts specially, and the finding is a part of the record. Judgment was given for the defendant. The city excepted and has brought the case here for review.
The bill of exceptions was unnecessary. The facts having been specially found by the court, they are before us for examination as if they were embodied in the special verdict of a jury. The question presented for our consideration, as prescribed by the statute, is whether they are sufficient to support the judgment. The bill of exceptions gives them no effect which they would not have had without it and raises no question which would not have been as well presented if it had not been taken.
and passengers across the Mississippi River between the City of St. Louis and the opposite Illinois shore. The company was required to pay a specific sum for a license, and a tax was imposed upon its wharf boat, attached to the city landing. Both were duly paid. Payment of the taxes upon the ferry boats was refused, and the several suits, consolidated into the one before us, were instituted by the city to recover the amount claimed to be due.
Where there is jurisdiction neither as to person nor property, the imposition of a tax would be ultra vires and void. If the legislature of a state should enact that the citizens or property of another state or country should be taxed in the same manner as the persons and property within its own limits and subject to its authority, or in any other manner whatsoever, such a law would be as much a nullity as if in conflict with the most explicit constitutional inhibition. Jurisdiction is as necessary to valid legislative as to valid judicial action.
was not to tax the property through the proprietor, but to tax the things themselves by reason of their being "within the city." The point for us to decide, therefore, is whether they are covered by the legal provisions under which the taxes were imposed. If the taxing officer acted without authority the taxes were invalid, and the city is not entitled to recover in this action.
"when not in actual use, were laid up by the Illinois shore and were forbidden, by a general ordinance of the City of St. Louis regulating ferries and ferry boats, to remain at the St. Louis wharf or landing longer than ten minutes at a time."
that state, and from the inherent law of its nature could not emigrate or become a citizen elsewhere. As the boats were laid up on the Illinois shore when not in use and the pilots and engineers who ran them lived there, that locality, under the circumstances, must be taken to be their home port. They did not so abide within the city as to become incorporated with and form a part of its personal property. [Footnote 13] Hence they were beyond the jurisdiction of the authorities by which the taxes were assessed, and the validity of the taxes cannot be maintained. [Footnote 14] In our opinion, the facts found are sufficient to support the judgment.
It has been insisted ably and learnedly by the counsel for the defendant in error that the taxes in question are taxes upon the tonnage of vessels engaged in interstate commerce, and are prohibited by the Constitution of the United States. No argument as to this aspect of the case has been submitted by the counsel upon the other side. We have not found it necessary to consider the subject, and we express no opinion upon it.
The reader who does not recall the provisions of this act may see then supra, towards the bottom of page 78 U. S. 141.
Glaize v. South Carolina Railroad Co., 1 Strobhart 72; Cromwell's Executors v. Charleston Insurance and Trust Co., 2 Richardson 512.
Bank of Augusta v. Earle, 13 Pet. 588; Lafayette Insurance Co. v. French, 18 How. 405.
McCulloch v. Maryland, 4 Wheat. 428; Providence Bank v. Billings, 4 Pet. 563.
Story's Conflict of Laws § 379; Broom's Maxims 501, 502; In re Ewin, 1 Crompton & Jervis 156.
International Life Assurance Company v. Commissioners of Taxes, 28 Barbour 318; Hoyt v. Commissioners, 23 id. 228; Story's Conflict of Laws 550.
Finley v. Philadelphia, 32 Pa.St. 381.
Wilson v. Mayor of New York, 4 E.D.Smith 678; Hoyt v. Commissioners, 23 N.Y. (Court of Appeals) 228.
1 Stat. at Large 55.
3 Kent 133, 170; Hill v. Golden Gate, Newberry 308; S.B. Superior, ib. 181; Jordan v. Young, 37 Me. 276.
Hays v. Pacific Steamship Company, 17 How. 596; City of New Albany v. Meekin, 3 Ind. 481.
Railroad Company v. Jackson, 7 Wall. 262.


text:
Timeline of Alabama Death Row inmate Tommy Arthur's appeals and execution dates.
472 So. 2d 665 (Ala.
2nd Trial 5/13/1987 sentenced to death. Court of Criminal 1165 (Ala. Crim. App.
711 So. 2d 1097 (Ala.
COJ 4/7/1998 Certificate of judgment issues.
1st Rule 32 1/25/2001 No. 1001966 (Ala. Nov.
affirms; Alabama Supreme Court and U.S.
1st execution Set for April 27, 2001. Stayed by Ex parte Arthur, 821 So.
452 F.3d 1234 (11th Cir.
459 F.3d 1310 (11th Cir.
Seeks access to evidence for DNA testing. 2381992 (M.D. Ala. Aug.
affirms; Supreme Court denies cert. 500 F.3d 1335 (11th Cir.
affirms; Supreme Court denies cert.
1983 nominally pro se complaint is evidently 4209262 (S.D. Ala. Nov.
Nov. 15, 2007); Arthur v.
Ala. Dept of Corrs., No.
Set for December 6, 2007. Execution is Ex parte Arthur, No.
Court stays the execution on July 30 on Ex parte Arthur, No.
executed inmates body be autopsied. Arthur v. Allen, 574 F.
4th 1983 7/28/2008 Southern District dismisses the complaint Supp. 2d 1252 (S.D. Ala.
counsel in the published opinion.
Gilbert refuses to answer any questions.
3rd Rule 32 7/29/2008 No. 1091292 (Ala. Apr.
Alabama Supreme Court and U.S.
Middle District dismisses, but 11th Circuit and Order, Arthur v.
development. Middle District holds WKW-TFM (M.D. Ala.
evidentiary hearings in October 2012 and Apr. 15, 2016), ECF No.
5th 1983 6/8/2011 January 2016. Middle District enters 359; Arthur v. Dunn, No.
judgment in States favor in April 2016, 2:11-cv-438-WKW (M.D.
in July 2016. 11th Circuit affirmed on Arthur v. Commr, No.
November 2, 2016. Supreme Court denied 16-15549 (11th Cir. Nov.
2nd Habeas 2/10/2012 a second 2254 petition in the Northern 10749-P (11th Cir. Mar.
2254 in light of Martinez v. Ryan.
Rule 60(b) June 20, 2012); Arthur v.
(11th Cir. 2014); Arthur v.
date Arthur v. Myers, No.
Glossip v. Glossip v. Gross, 135 S.
decision on his fifth 1983 and the Ex parte Arthur, No.
Courts denial of his motion to stay for 2016); Order, Arthur v.
7th execution consideration of a Hurst v. Florida Dunn, No. 16-602 (Nov.
date argument. The U.S. Supreme Court 3, 2016); Arthur v.
November 3 as a courtesy to the four 2017 WL 276188 (Jan.
voted for a stay. The Court denies cert.
is due March 3, 2017.
ADOCs prohibition against telephones in 2:16-cv-866-WKW (M.D.
the viewing chamber during executions. Ala. Nov. 3, 2016), Doc.

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G.R. No. 198400, October 07, 2013 - FE ABELLA Y PERPETUA, Petitioners, v. PEOPLE OF THE PHILIPPINES, Respondent.
FE ABELLA Y PERPETUA, Petitioners, v. PEOPLE OF THE PHILIPPINES, Respondent.
thus performing all the acts of exe[cu]tion which would produce the crime of homicide as a consequence, but nevertheless, did not produce it by reason of some cause or causes independent of the will of the accused, that is the timely and able intervention of the medical attendance rendered to the said victim.
During the arraignment, the petitioner pleaded not guilty to the crime charged. Pre-trial and trial thus proceeded.
The Prosecution offered the testimonies of: (a) Benigno;10 (b) Amelita Abella11 (Amelita), Benigno’s wife; (c) Alejandro Tayrus12 (Alejandro), with whom the petitioner had a quarrel; and (d) Dr. Roberto Ardiente13 (Dr. Ardiente), a surgeon from J.R. Borja Memorial Hospital, Cagayan de Oro City, who rendered medical assistance to Benigno after the latter was hacked by the petitioner.
The Prosecution evidence established that on September 6, 1998, at around 11:00 p.m., Benigno was watching television in his house. A certain Roger Laranjo arrived and asked Benigno to pacify the petitioner, who was stirring trouble in a nearby store. Benigno and Amelita found the petitioner fighting with Alejandro and a certain Dionisio Ybañes (Dionisio). Benigno was able to convince the petitioner to go home. Benigno and Amelita followed suit and along the way, they dropped by the houses of Alejandro and Dionisio to apologize for the petitioner’s conduct.
The defense offered the testimonies of: (a) the petitioner;22 (b) Fernando Fernandez23 (Fernando), a friend of the petitioner; and (c) Urbano Cabag24 (Urbano).
The petitioner relied on denial and alibi as defenses. He claimed that from September 2, 1998 to October 2002, he and his family resided in Buenavista, Agusan del Norte. Sitio Puli, Canitoan, Cagayan de Oro City, where the hacking incident occurred, is about four (4) hours drive away.
WHEREFORE, in view of the foregoing and finding the evidence presented by the prosecution sufficient to prove the guilt of the [petitioner] beyond reasonable doubt, judgment is rendered finding [petitioner] Fe Abella GUILTY beyond reasonable doubt of the crime of Frustrated Homicide as defined and penalized by Article 249 in relation to Article 50 and Art. 6 of the Revised Penal Code. Accordingly, [petitioner] Fe Abella is hereby sentenced to suffer an indeterminate penalty of Six (6) years and One (1) day to Eight (8) years of prision mayor as minimum to Ten (10) years and One (1) day to Twelve (12) years of prision mayor as maximum; to indemnify offended-party complainant Benigno Abella the sum of Ten Thousand ([P]10,000.00) Pesos for the medical expenses incurred; to pay the sum of ONE HUNDRED THOUSAND ([P]100,000.00) PESOS as consequential damages and to pay the costs.
The RTC found the petitioner’s defenses of alibi and denial as weak. No disinterested witnesses were presented to corroborate the petitioner’s claim that he was nowhere at the scene of the hacking incident on September 6, 1998. Fernando and Urbano’s testimonies were riddled with inconsistencies. The RTC accorded more credence to the averments of the prosecution witnesses, who, without any ill motives to testify against the petitioner, positively, categorically and consistently pointed at the latter as the perpetrator of the crime. Besides, medical records show that Benigno sustained a wound in his neck and his scar was visible when he testified during the trial.
The RTC awarded P10,000.00 as actual damages to Benigno for the medical expenses he incurred despite the prosecution’s failure to offer receipts as evidence. The petitioner was likewise ordered to pay P100,000.00 as consequential damages, but the RTC did not explicitly lay down the basis for the award.
The petitioner then filed an appeal29 before the CA primarily anchored on the claim that the prosecution failed to prove by clear and convincing evidence the existence of intent to kill which accompanied the single hacking blow made on Benigno’s neck. The petitioner argued that the hacking was merely accidental especially since he had no motive whatsoever which could have impelled him to hurt Benigno, and that the infliction of merely one wound negates intent to kill.
Intent to kill may be proved by evidence of: (a) motive; (b) the nature or number of weapons used in the commission of the crime; (c) the nature and number of wounds inflicted on the victim; (d) the manner the crime was committed; and (e) the words uttered by the offender at the time the injuries are inflicted by him on the victim.
Here, the intent to kill was sufficiently proven by the Prosecution. The [petitioner] attacked [Benigno] with deadly weapons, two scythes. [The petitioner’s] blow was directed to the neck of Benigno. The attack on the unarmed and unsuspecting Benigno was swift and sudden. The latter had no means, and no time, to defend himself.
In support thereof, the petitioner avers that the courts a quo failed to appreciate relevant facts, which if considered, would justify either his acquittal or the downgrading of his conviction to less serious physical injuries. The petitioner points out that after the single hacking blow was delivered, he ran after Alejandro and Dionisio leaving Benigno behind. Had there been an intent to kill on his part, the petitioner could have inflicted more wounds since at that time, he had two scythes in his hands. Further, the CA erred in finding that the hacking blow was sudden and unexpected, providing Benigno with no opportunity to defend himself. Benigno saw the petitioner arriving with weapons on hand. Benigno could not have been unaware of the danger facing him, but he knew that the petitioner had no intent to hurt him. Benigno thus approached the petitioner, but in the process, the former was accidentally hit with the latter’s scythe.
Further, as per Dr. Ardiente’s testimony, no complications resulted from Benigno’s hacking wound in the neck and incised wound in the hand. Such being the case, death could not have resulted. The neck wound was not “so extensive because it [did] not involve [a] big blood vessel on its vital structure” while the incised wound in the hand, which only required cleansing and suturing, merely left a slight scarring.40 Besides, Benigno was only confined for seventeen (17) days at the hospital and the injuries he sustained were in the nature of less serious ones.
In its Comment,41 the Office of the Solicitor General (OSG) seeks the dismissal of the instant petition. The OSG stresses that the petitioner raises factual issues, which call for a re-calibration of evidence, hence, outside the ambit of a petition filed under Rule 45 of the Rules of Court.
Moreover, the petitioner’s argument that the development of infections or complications on the wounds is a necessary factor to determine the crime committed is specious. The petitioner’s intent to kill Benigno can be clearly inferred from the nature of the weapon used, the extent of injuries inflicted and the circumstances of the aggression. Benigno could have died had there been no timely medical assistance rendered to him.
If it were the petitioner’s wish to merely get Benigno out of the way to be able to chase Alejandro and Dionisio, a kick, fist blow, push, or the use of a less lethal weapon directed against a non-vital part of the body would have been sufficient. However, the petitioner hacked Benigno’s neck with an unsterile scythe, leaving behind a big, open and gaping wound.
filed under Rule 45 of the Rules of Court.
A petition for review on certiorari under Rule 45 is an appeal from a ruling of a lower tribunal on pure questions of law. It is only in exceptional circumstances that we admit and review questions of fact.
In the case at bar, the challenge is essentially posed against the findings of the courts a quo that the petitioner had a homicidal intent when he hacked Benigno’s neck with a scythe and that the wounds the latter sustained could have caused his death had there been no prompt medical intervention. These questions are patently factual in nature requiring no less than a re-calibration of the contending parties’ evidence.
It is settled that the general rule enunciated in Century Iron Works, Inc. and Benito Chua admits of exceptions, among which is, “when the judgment of the CA is premised on a misapprehension of facts or a failure to notice certain relevant facts that would otherwise justify a different conclusion x x x.”44 However, the factual backdrop and circumstances surrounding the instant petition do not add up to qualify the case as falling within the exceptions.
still, the instant petition is susceptible to denial.
The petitioner now wants to impress upon this Court that he had no motive to attack, much less kill Benigno. The petitioner likewise invokes the doctrine in Pentecostes, Jr.47 to argue that homicidal intent is absent in a case where the accused shot the victim only once when there was an opportunity to do otherwise. The petitioner belabors his claim that had he intended to kill Benigno, he could have repeatedly hacked him to ensure the latter’s death, and not leave right after the blow to chase Alejandro instead.
In Pentecostes, Jr., the victim was shot only once in the arm, a non vital part of the body. The attending physician certified that the injury would require medical attendance for ten days, but the victim was in fact promptly discharged from the hospital the following day.
In Benigno’s case, he sustained an 11-centimeter long hacking wound in the neck and a 4-cm long incised wound in his left hand caused by the unsterile scythe used by the petitioner. Dr. Ardiente testified that “it is possible to have complications [resulting from these] injuries because the wounds [were] extensive and [they were] big and [they were open wounds], so there is a possibility of infection[s] [resulting from these] kind[s] of wounds, and the instrument used [was] not [a] sterile instrument contaminated with other thing[s].”48 No complications developed from Benigno’s wounds which could have caused his death, but he was confined in the hospital for a period of 17 days from September 6, 1998 to September 23, 1998.
From the foregoing, this Court concludes and thus agrees with the CA that the use of a scythe against Benigno’s neck was determinative of the petitioner’s homicidal intent when the hacking blow was delivered. It does not require imagination to figure out that a single hacking blow in the neck with the use of a scythe could be enough to decapitate a person and leave him dead. While no complications actually developed from the gaping wounds in Benigno’s neck and left hand, it perplexes logic to conclude that the injuries he sustained were potentially not fatal considering the period of his confinement in the hospital. A mere grazing injury would have necessitated a lesser degree of medical attention.
This Court likewise finds wanting in merit the petitioner’s claim that an intent to kill is negated by the fact that he pursued Alejandro instead and refrained from further hacking Benigno. What could have been a fatal blow was already delivered and there was no more desistance to speak of. Benigno did not die from the hacking incident by reason of a timely medical intervention provided to him, which is a cause independent of the petitioner’s will.
All told, this Court finds no reversible error committed by the CA in affirming the RTC’s conviction of the petitioner of the crime charged.
2 Penned by Associate Justice Nina G. Antonio-Valenzuela, with Associate Justices Edgardo A. Camello and Leoncia R. Dimagiba, concurring; CA rollo, pp. 74-82.
3 Penned by Associate Justice Edgardo A. Camello, with Associate Justices Abraham B. Borreta and Melchor Quirino C. Sadang, concurring; id. at 112-116.
4 Issued by Judge Downey C. Valdevilla, id. at 31-43.
7 Original Records, p. 1-2.
10 TSN, February 20, 2003, pp. 2-20.
11 TSN, January 23, 2003, pp. 2-21.
13 TSN, May 12, 2003, pp. 3-12.
14 TSN, January 23, 2003, pp. 9, 17.
19 TSN, May 12, 2003, p. 7; see also Medical Certificate and Clinical Cover Sheet, Original Records, pp. 69-70.
20 Original Records, p. 70; TSN, May 12, 2003, p. 9.
21 TSN, May 12, 2003, pp. 9-11.
22 TSN, April 26, 2004, pp. 1-26.
23 TSN, January 22, 2004, pp. 1-32.
24 TSN, October 27, 2004, pp. 1-27.
25 TSN, January 22, 2004, p. 13.
26 TSN, October 27, 2004, pp. 5-6.
27 CA rollo, pp. 31-43.
35 Id., citing Premiere Development Bank v. Court of Appeals, 471 Phil. 704, 719 (2004).
38 G. R. No. 167766, April 7, 2010, 617 SCRA 504.
41 CA rollo, pp. 129-150.
42 G. R. No. 184116, June 19, 2013.
44Rollo, p. 20, citing Fuentes v. CA, 335 Phil. 1163, 1168 (1997).
45People v. Badriago, G.R. No. 183566, May 8, 2009, 587 SCRA 820, 832, citing SPO1 Nerpio v. People, 555 Phil. 87, 94 (2007); People v. Tolentino, G.R. No. 176385, February 26, 2008, 546 SCRA 671, 695.
46Colinares v. People, G.R. No. 182748, December 13, 2011, 662 SCRA 266, 275-276, citing People v. Pagador, 409 Phil. 338, 351 (2001); Rivera v. People, 515 Phil. 824, 832 (2006).
48 TSN, May 12, 2003, p. 9.
50Esqueda v. People, id; Serrano v. People, G.R. No. 175023, July 5, 2010, 623 SCRA 322, 341.
51People of the Philippines v. Rodel Lanuza y Bagaoisan, G.R. No. 188562, August 17, 2011; People of the Philippines v. Jesus Domingo, G.R. No. 184343, March 2, 2009, 580 SCRA 436.
52Esqueda v. People, supra note 49, at 513.
53 Please see People of the Philippines v. Jonathan “Uto” Veloso y Rama, G.R. No. 188849, February 13, 2013.

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Reading through the final 5 Psalm today a song kept running through my head. In fact, as I read through the Psalm this entire month, this song kept running through my head. “Mercy Me” are modern day psalmist who songs do much of the same thing that the original Psalms did for the people of God. They help express themselves in a variety of life’s circumstances. They help keep the person better connected to God through worship. And they help lead us into reflection and meditation of all that God has done and will do for us, His chosen people. So I want to share the lyrics today of this Mercy Me song, called All of Creation. It is one of their more famous songs, so read through the lyrics, think about many of the Psalm we read this past month and if it helps go search the song online and listen to it again with the music background. I pray you have been transformed this past month reading through the book of Psalm. Now onto Proverbs.
Psalm 142 is a lament Psalm dealing with despair, facing loss, and have emotions that bring no hope in life. The “cave” referred to in the heading is probably that of Adullam to which David retired when obliged to leave the land of Achish the Philistine. This is the last of the thirteen “maskil” or didactic psalms. It has two divisions: (1) the psalmist’s desperate condition (vv. 1–4); and (2) his determined confidence (vv. 5–7).
1–2. David resolves to seek relief by laying his distress before Yahweh. He will cry “aloud,” not merely in silent prayer. Such vocalization of distress gives relief to pent up feelings and expression of the intensity of the distress.
3–4. Yahweh knows David’s peril and loneliness, even if he has no human sympathizers. David’s spirit faints within him. He is in despair, but his comfort is that Yahweh knows the course which he must take, and the perils which beset him from treacherous enemies. On his right hand, where any protector would be standing, there is no one to take up his cause.
5–6. In the past David had cried out to God. He still continues to do so. God is his “refuge” and “portion” in the land of the living. He is confident that he will not die but live to declare the words of the Lord.
7. He now has been brought low. His persecutors were stronger than he. He is imprisoned, as it were, in distress. He prays that he may be released from that prison. Then he will praise Yahweh’s name. Then the righteous—the loyal worshipers of Yahweh—will gather round him to share in his thanksgivings. He is confident that God will deal most bountifully with him. And I love how the Psalm ends with the goodness of God even in despair. God is good and that is all I know many times.
Psalm 131 is a trust in God Psalm. It stresses the virtue of humility and was designed to get the worshipper in the right frame of attitude on their way to the Temple for worship that is why it is called a song of ascent. The imagery “small child is quiet with its mother” (131:2) suggests one who is happy and secure, having gone through the difficult weaning process. Such is the psalmist’s condition after being weaned from a desire for status. The psalmist testified to the tranquility of the one trusting God and exhorted others to trust as well. Here is the outline of the 3 small but powerful verses. Read this Psalm over and over again today and memorize it, if you are able.
A. He is not haughty (131:1).
B. He is still and quiet (131:2).
Psalm 124 is a thanksgiving Psalm. A thanksgiving Psalm is a song of praise to Yahweh for His covenant faithfulness and gratitude for His care in life. This is the type of Psalm we will be looking at this coming Sunday, so I thought it would be good to take a closer look today at the type. Whereas Psalm 138 (this Sunday’s Psalm) is a more general over view thanksgiving, Psalm 124 is a personal very specific thank you to God. Thanksgiving is a vital part of the Christian life. How can a redeemed saint of God go a day without feeling gratitude for the covenant God Yahweh who saved them on the cross and is saving them daily thought the power of the Spirit? It is like the first line of Psalm 124, “If the LORD had not been on our side”. Here is an outline to help us think more critically about this Psalm and find the gratitude in our own lives.
These verses lay out the, what if. This group of verses show the cry for deliverance that the people had for God. Whether it was the Philistines, the Assyrians, or another people group, the chosen people of God realized they were under siege and outnumbered by evil forces and if God had not saved them they would have been lost. This is still very true for us today as the people of God. “Oh but for the grace of God I”, I would have been lost and dying and going to hell in my own daily sin.
These verses are the testimony to God for what He did. If God had not been for us, we would have been lost. But God, was for us, so we escaped and were saved. The only help we could have found was in the LORD and He found us and saved us. Today, as the church, we are living testimonies to God and His saving work.
This simple verse is the praise and shout to God in thanksgiving. Praise God, He saved me. Praise God, without Him I was lost. Praise God for His protection and care. Praise God for His blessing and grace. Praise God for being God. As Heaven is already proclaiming to God, “Holy, Holy, Holy” praise be to the King of the Universe, who cares enough for me to save me.
What a way to start the second half of the Bible. As I stated yesterday Psalm 118 is the middle of the Bible, so Psalm 119 is the start of the second half. Reading through the Psalm today, it could not be helped to hear the psalmist thoughts, cries, prayers, confidence, and use of God’s Word. This Psalm is a great reminder to us. This Psalm lays out every reason for us to read God’s Word and take stock in it. This Psalm lays out every reason we should and are reading the Bible this year. So, I thought it would be good today, in honor of the great Word of God, to list some important theological words for us to consider about the Bible. Each one of these words is true about the Bible and is helpful for our faith in understanding and strength in the Word of God.
Authority: The power the Bible possesses, having been issued from Creator God, for which it “ought to be believed and obeyed”.
Autographs: The original texts of the biblical books as they were issued from the hands of the original writers.
Canon: The authoritative list of inspired biblical books. This means rule or measuring stick.
Inerrancy: The position that the Bible affirms no falsehood or wrong of any sort, that is, “it is without fault or error in all that it teaches, in matters of history, science, and faith”.
Infallibility: The position that the Bible cannot err or make a mistake and that it “is completely trustworthy as a guide to salvation and the life of faith and will not fail in accomplishing its purposes”.
Necessity: Refers to mankind’s need for God’s special revelation in the Scriptures in order to obtain knowledge of the gospel and the plan of salvation.
Scripture: From the Latin word meaning “writings” which referred to sacred texts.
Special revelation: The things that God makes know about Himself, apart from nature and conscience (general revelation). This revelation is 99.9% of the time found in the Scripture, because they deal with Christ and the plan for Salvation.
Sufficiency: All that is needed to know and believe regarding salvation and what pleases God, are found only in the Bible.
Verbal, plenary inspiration: God controlled the very writing the Bible down to the choice of word and syllable, not just the overarching themes.
Congratulations! If you have been reading the Bible with us from January 1, then today marks a big time milestone. Psalm 119 is the longest chapter in the Bible, while Psalm 117 is the shortest chapter in the Bible. Psalm 118 is important, sandwiched in between both the longest and shortest chapters in the Bible because 118 marks the exact middle of the Bible. So, when the reading today finished after Psalm 118, it means that less than half of the Bible is left. The reading is on the downhill. Congratulations for reading half of the Bible so far this year. Here are a few verses for us to remind us why we should be reading the Bible and remind us why we are reading the Bible this year.
-Your statutes (commands or words) are my delight; they are my counselors.
-Your word is a lamp for my feet and a light for my path.
-All Scripture is God-breathed and useful for teaching, rebuking, correcting, and training in righteousness.
Psalm 110 is my favorite Psalm in all of Scripture. This is the most quote Psalm in the Bible and is used by almost every New Testament Author in one form or another. This Psalm is a royal celebration Psalm that was used in the life of Israel in celebration of King David. But this Psalms plays much more importance in the life of God’s people in its prophetic use for another greeter King. Psalm 110 pointed toward another King who would be above David; this King, Jesus the Messiah, would stand between David and God the Father. This psalm is an important Old Testament passage for the book of Hebrews (Heb. 1:3, 13; 5:6; 7:17, 21; 10:13). Psalm 110 was also a crucial Old Testament passage for Peter on the Day of Pentecost for showing that the greater Son of David, Jesus, had to ascend to the right hand of God (Acts 2:34–36). Jesus used Psalm 110:1 to prove his deity to the questioning Pharisees (Matt. 22:41–45). The “Lord” refers to God the Father, while “my Lord” refers to the second person of the Trinity, Jesus the Son (110:1). The rule of Christ will be culminated in the millennial kingdom (110:2). God’s believing people will rally around the Messiah in recognition of his lordship and rule (110:3). The metaphor “the morning dew” (110:3) refers to the freshness and vitality of those who will serve God. Like Melchizedek (Gen. 14:18), Christ holds both offices of king and priest (Heb. 7:1–28). The battle scene described in Psalm 110:5–6 will take place at Christ’s second coming (Zech. 14:1–15; Rev. 19:11–21). Here is a quick outline of this amazing song.
I. He Is God (110:1).
B. The promise (110:1): The Father assures the Son that his enemies will be humbled.
II. He Is a King (110:2–3).
A. The place of his reign (110:2): It will extend from Jerusalem.
B. The power of his reign (110:3): People will serve God willingly.
III. He Is a Priest (110:4).
A. The oath (110:4): The Father vows to establish his Son’s priesthood.
B. The order (110:4): It is after the order of Melchizedek.
IV. He Is a Judge (110:6): He will punish the nations.
V. He Is a Victorious Warrior (110:5, 6–7): God is nearby and will protect his people.
This psalm is often known as the ‘Jubilate’, which is Latin for ‘O be joyful’. It is one of the most popular and often-used psalms for public worship. Here is an invitation to the whole earth (not just separate ‘lands’) to offer a great shout of joy to the Lord, and to enter his presence, singing with uninhibited joy! It may originally have been a psalm for bringing a thank-offering. The joyful shout is that of a crowd offering loyalty and welcome to a king. It is not to be given lightly, as it implies a total commitment. The people of Israel shouted in such a way when Saul became their king (1 Samuel 10:24). It is a fanfare of human hearts and voices. This is a psalm of vast and eternal perspective. God has made us and we belong to him. We are his people, his sheep. His love and purpose cover the whole context of our lives, both now and forever. To worship this God is also to serve him with our whole self (Romans 12:1). Knowing that the Lord is God is a sure foundation for our praise. We are secure in his creation and saving love. We are sure of his welcome. We belong to him. It is because God has made us and he welcomes us that we can come into his presence with such confidence and praise. The courts are the courts of the temple, where nothing unholy is allowed—and yet we may enter. This is God’s house, his place—and we can come in! Finally, the psalmist realizes that this privilege is ongoing. God’s nature doesn’t change, so his goodness will continue. His love will last forever. This invitation to acknowledge him is to all people, in every place and age. Here is the simple small outline of the chapter.
I. God Is the Song v. 1-2 -We are his singers.
II. God Is the Creator v. 3-We are his creation.
III. God Is the Shepherd v. 3-We are his sheep.
IV. God Is the Blessed One v. 4-We are his blessed ones.
V. God Is Love v. 5-We are his loved ones.
Psalm 93 is a short enthronement Psalm. This means that is stresses the place of God on His throne while being used in a royal King David celebration. This Psalm could be entitled; The King acclaimed. The affirmation of vs 1–2 moves into the picture of vs 3–4 and the solemn consequence for the Lord’s people vs 5; vs 1–2 work downwards from the securely enthroned Lord to the derivative security of the world he rules; vs 3–4 work upwards from the turbulence of earth’s ‘forces’ to the serene might of his exaltation. The earth is a safe place to live in because he reigns; and even when it is at its most turbulent he is still on the throne. Verse 1 emphasizes the Lord’s clothing: robed … robed … armed, ‘has girded himself’. As a motif, ‘clothing’ indicates character and intent (Jos. 5:13–15; Is. 59:16–18). The Lord wears the garb of royalty because he is, and intends to act as, king. Why the world is firmly established we are not told, but the fact that this truth is sandwiched between the Lord’s reign v.1 and his throne v. 2 speaks volumes. While he reigns earth remains stable. Verses 3–4 use the restless seas to portray all the forces of destruction and hostility in the created order—whether violent storms themselves, or the turbulence of nations (Ps. 2) or even (as pagans thought) the ceaseless warfare of spiritual forces of chaos against the Creator. No matter what the turbulence, the Lord on high is mighty. Verse 5 matches v. 2 in the structure of the psalm. There, God who is by nature eternal occupies his eternal throne; here the God who lives in his house among his people has spoken his unchanging word and makes holiness his unchanging requirement.
Psalms 88 is a tough read. Read over it again, if you get a chance and feel the full weight of what the psalmist is crying out to God. This is a lament Psalm but with a little different structure. This Psalm contains the address and complaint of a lament, it even contains the trust of a lament, which is harder to find in this Psalm. But this lament contains no real praise, assurance, or deliverance in it like a typical lament would. That is designed to catch our attention and give the Psalm much more weight to it. Did you feel the broken cries of distress from the writer? Here is the outline for the Psalm and I will also share a few more thoughts after the structure is given.
Here the speaker is calling on the covenant Yahweh title of God to save Him and here his prayer. He is calling God to not turn a deaf ear but to listen to the cries he is about to give.
Here the speaker is listing his troubles for Yahweh to hear. “My soul is full of trouble” or my soul is broken and in full distress. “My life draws near the grace” or the speaker is saying I am about to die. In this list of complaints death and being cut off from the care of God is a big theme that is brought out numerous times in these 3 verses.
Here the speaker is recognizing that God has brought him to the place he is in. “You have out me’, “Your wrath”, and “You have taken” is the speakers way of telling God, look, I am in this situation because you have placed me here, I know it is hard, painful, and I am being broken, but I trust in your placing me here.
Here the speaker is wondering how, if he would die, God would get the praise He deserves. The speaker is unsure how God’s love would be declared in his death and how the righteousness of God will be made know around the world, if he would die.
The speaker ends his Psalm with staking more complaints to God and telling Yahweh how much pain he is in. Look at the last night, even all of the friends and loved ones have abandoned the speaker and he is utterly alone in darkness. And look also where the speaker says that much of what he is feeling right now is because of the wrath of God.
OK, there is the structure and outline of the Psalm. Did you feel the weight of it? Did you feel the pain and brokenness of the speaker? If you can now, read it a 3rd time but this final time, read it in light of Jesus and the Cross. Feel the weight even more now. The speaker could very well be Jesus on the cross making an atonement for us (which is why this Psalm is prophetic). I pray this Psalm gives you a new light on what Jesus did for you. Because all the questions and pain were answered by that atonement for you, so that you would never have to cry this Psalm to God as the speaker.

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User-centered design (UCD) can be understood as a philosophy, a process, or even an approach, that has the objective to increase the consideration of user needs in the design process. In particular, an empathy map is a UCD method that seeks the definition of a user profile and user needs. Because the method is gaining importance in the literature and in applications to perform services and design products, we report on an application of the empathy map method and evaluate its usefulness. The empathy map was applied by 25 trainees in a controlled experiment in the concept phase for a white glue tube design process, in a partnership with a company that produces office supplies. The method helped in many aspects, mainly in organizing the information collected and understanding the user. Both the students and the company were satisfied with the results that the method provided.
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Entitlement to service connection for memory loss (claimed as dementia) is granted.
Entitlement to service connection for bilateral hip disorder is remanded.
The VA medical evidence establishes to a reasonable likelihood that the Veteran currently has a standalone cognitive disorder, which involved memory loss, incurred as the residual of a medical procedure back in 1979 for treatment and removal of an arteriovenous (AV) malformation.
The criteria to establish service connection for a disability manifested by memory loss, as due to service-connected AV malformation status post left parietal craniotomy, have been met.  38 U.S.C. §§ 1110, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2018).
The Veteran had active duty service from June 1966 to June 1968.
This case has an extensive procedural history, recounted in part.
The original Board decision that was issued in June 2007 denied the claims.  That determination was appealed to the United States Court of Appeals for Veterans Claims (Court).  In a May 2009 Memorandum Decision, the Court vacated the Board’s June 2007 decision, and remanded it for further consistent proceedings.  Following several Board remands and then another February 2014 decision upon the claim, on second appeal to the Court, the parties filed a November 2014 Joint Motion for Remand (Joint Motion) which directed still further development.
The Board last remanded this case December 2016, requesting specifically that the Veteran undergo a VA examination with regard to the claimed bilateral hip disorder, and further requested, was the issuance of a Supplemental Statement of the Case (SSOC) addressing all known evidence obtained since the case was last reviewed at the appellate level.
Since then, the October 2018 Regional Office (RO) rating decision was issued which granted then pending claims for entitlement to service connection for arteriovenous (AV) malformation, status post left parietal craniotomy; for right eye homonymous hemianopsia and left eye vitreous floaters; and for depression.
The instant matters remained in denial status pursuant to an October 2018 SSOC and have returned to the Board.  Given that further development remains required with regard to the bilateral hip disorder, that matter is again remanded.
1. Entitlement to service connection for memory loss (claimed as dementia).
Service connection may be granted for disability resulting from disease contracted or an injury incurred in service.  38 U.S.C.A. § 1110 (2012); 38 C.F.R. § 3.303(a) (2018).
Basic requirements for service connection are (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) causal relationship between the disability and service.  See generally, Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).
For chronic disease in service, the later symptoms are service-connected unless clearly from another cause.  Otherwise, continuity of symptomatology can link a condition back to service.  38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013) (limiting use of continuity of symptomatology to diseases listed as “chronic” under 38 C.F.R. § 3.309(a)).
Secondary service connection is also available for a condition that developed secondary to a service-connected disability.  This includes a condition that is due to or the result of a service-connected disability.  See 38 C.F.R. § 3.310(a). Secondary service connection also applies when service-connected disability has chronically aggravated a nonservice-connected disability.  See 38 C.F.R. § 3.310(b).
Based upon the existing record, the Board will grant this claim on appeal.
As indicated, recently, by October 2018 RO rating decision the Veteran was adjudicated in receipt of service-connected compensation for arteriovenous (AV) malformation, status post left parietal craniotomy.
It is readily established therefore both that the Veteran’s memory loss occurred secondarily to the service-connected AV malformation disorder, namely, due to post-surgical residuals of the same, and that it is indeed a separate standalone clinical condition.  Resolving reasonable doubt favorably it is concluded that memory loss indeed comprised a separate and standalone cognitive condition.  See 38 C.F.R. § 3.102.
The claim is therefore granted.
1. Entitlement to service connection for bilateral hip disorder is remanded.
The record shows the Veteran underwent a thorough VA re-examination in March 2017, and there was an April 2018 addendum opinion that found the claimed hip condition was less likely than not incurred in or caused by service.  Essentially, that subsequent VA examiner medical opinion took into account the Veteran’s competent reported in-service hip injury in 1967, that being not clinically documented within Service Treatment Records (STRs).
The examiner considered the report of worsening symptoms since service.  Further noted was that beginning February 2008, the Veteran had manifested the condition of bilateral narrowing of the hips with degenerative changes.  On this basis, the examiner concluded “there are no records to support that claim” of the stated injury in Korea in 1967, and presumably, the claimed causation relationship.
The Board points out pursuant to established VA law in fact, that viewpoint is not legally supported.  If competent and credible, then lay testimony from the Veteran is sufficient to establish the likelihood of an event having occurred during service. See Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed. Cir. 2006).
The likelihood of in-service injury while in Korea gained some credence on earlier examination.  Significantly, the Veteran for many years now said he had continuity of symptomatology since service, and identified private clinics that treated him from 1984 to 2001.  VA duly attempted to obtain said records, however, it was later determined that many of these private medical records were no longer available, or had been routinely discarded after a certain time period.  The Veteran’s own report of what his medical history is becomes all that more necessary here.
Accordingly, another addendum opinion is necessary.  The examination is requested for purposes of thoroughness to fully address the Veteran’s stated history of intervening treatment for hip problems since service discharge, and report of continuity of symptoms.
1. Schedule the Veteran for a VA examination for his hip condition.  The electronic claims folder must be made available for the examiner to review, and the examiner should confirm this review was completed.
The examiner should determine whether the Veteran’s hip condition at least as likely as not (50 percent or greater probability) is etiologically related to his military service based on the Veteran’s competent statements regarding in-service injury, along with the documented medical history.  Through interviewing the Veteran obtain a detailed account of his outpatient clinical treatment from 1984 onwards, reportedly for hip problems, in recognition of the fact that the actual clinical records are not obtainable.
The examiner should consider all competently reported post-service medical history as well as the Veteran’s assertion that he has had continuity of symptoms since service.
The examiner should include in the examination report the rationale for any opinion expressed.  However, if the examiner cannot respond to the inquiry without resort to speculation, he or she should so state, and further explain why it is not feasible to provide a medical opinion.
2. Then readjudicate the matter on appeal based upon all evidence of record.  If the benefit sought on appeal is not granted, the Veteran and his attorney should be furnished with a Supplemental Statement of the Case (SSOC) and afforded an opportunity to respond.