The staff of the Board of Governors of the Federal Reserve System, Federal Deposit Insurance Corporation, Financial Crimes Enforcement Network, National Credit Union Administration, Office of the Comptroller of the Currency, Office of Thrift Supervision, and the United States Department of the Treasury (Agencies) are issuing these frequently asked questions (FAQs) regarding the application of 31 C.F.R. § 103.121. This joint regulation implements section 326 of the USA PATRIOT Act and requires banks, savings associations, credit unions and certain non-federally regulated banks (bank) to have a Customer Identification Program (CIP).
1. The CIP rule applies to a customer, which is generally a person that opens a new account. (Emphasis added.) At what point does the CIP rule apply when the account is a loan? When is the account opened?
Customer does not include a person who does not receive banking services, such as a person whose loan application is denied. See 68 FR 25090, 25093 (May 9, 2003). Therefore, when the account is a loan, the account is opened when the bank enters into an enforceable agreement to provide a loan to the customer.
2. Are loan participations purchased from third parties and loans purchased from a car dealer or mortgage broker within the exclusion from the definition of account for loans acquired through an acquisition, merger, purchase of assets, or assumption of liabilities?
Yes, this exclusion is intended to cover loan participations purchased from third parties and loans purchased from a car dealer or mortgage broker. If, however, the bank is extending credit to the borrower using a car dealer or mortgage broker as its agent, then it must ensure that the dealer or broker is performing the banks CIP.
1. Is the CIP rule applicable to a banks foreign subsidiaries?
No. The CIP rule does not apply to any part of the bank located outside of the United States. Nevertheless, as a matter of safety and soundness, banks are encouraged to implement an effective CIP throughout their operations, including in their foreign offices, except to the extent that the requirements of the rule would conflict with local law.
1. Who is the customer when an account is opened by an individual who has power-of- attorney for a competent person who is the named owner of the account?
The CIP rule provides that a customer generally is a person that opens a new account. 31 C.F.R. § 103.121(a)(3)(i)(A). When an account is opened by an individual who has power-of-attorney for a competent person, the individual with a power-of-attorney is merely an agent acting on behalf of the person that opens the account. Therefore, the customer will be the named owner of the account rather than the individual with a power-of-attorney over the account. By contrast, an individual with power-of-attorney will be the customer if the account is opened for a person who lacks legal capacity. 31 C.F.R. § 103.121(a)(3)(i)(B)(1).
2. Is a person who becomes co-owner of an existing deposit account a customer to whom the CIP rule applies?
Yes, a person who becomes the co-owner of an existing deposit account is a customer subject to the CIP rule because that person is establishing a new account relationship with the bank.
3. Is a new borrower who is substituted for an existing borrower through an assumption of a loan a customer to whom the CIP rule applies?
Yes, a new borrower who is substituted for an existing borrower through an assumption of a loan is a customer because the new borrower is establishing a new account relationship with the bank.
4. The CIP rule requires a bank to verify the identity of each customer. Under the CIP rule, a customer generally is defined as a person that opens a new account. If a pension plan administrator chooses to remove a former employee from the plan pursuant to section 657(c) of the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA), it is required by law to transfer these funds to a financial institution. In addition, an administrator of a terminated plan may remove former employees that it is unable to locate, by transferring their benefits to a financial institution. Would a plan administrator or the former employee be a bank customer where funds are transferred to a bank and an account established in the name of the former employee, in either of these situations?
This interpretation applies only to (1) transfers of funds as required under section 657(c) of EGTRRA, and (2) transfers to banks by administrators of terminated plans in the name of participants that they have been unable to locate, or who have been notified of termination but have not responded, and should not be construed to apply to any other transfer of funds that may constitute opening an account.
5. A bank is an agent for a (bank) credit card issuer. The cards are co-branded, the two banks share in the revenue from the cards issued. However, the issuer approves the credit card applications and handles collections. Is a person who obtains a credit card a customer of the agent bank or the card issuer?
A person who receives a credit card is receiving an extension of credit from, and therefore is establishing an account with, the issuing bank. The agent bank is compensated by the issuing bank and not by the customer. For these reasons, the issuing bank is responsible for ensuring that its CIP applies to the customer. However, the agent bank may perform parts of the CIP on behalf of the issuing bank. As with any other responsibility performed by an agent, the issuing bank ultimately is responsible for the agents compliance with the requirements of the CIP rule. See 68 FR 25090, 25104 (May 9, 2003). Alternatively, the issuing bank may rely upon the agent bank to perform elements of its CIP, provided that the issuing bank is able to satisfy the requirements of the reliance provision, 31 C.F.R. § 103.121(b)(6), including the requirement that the person be a customer of both the issuing and agent bank.
1. A loan and a time deposit are each an account for purposes of the CIP rule. How do the requirements of the CIP rule apply to a loan that is renewed, or a certificate of deposit that is rolled over?
The CIP rule applies to a customer, generally, a person that opens a new account. 31 C.F.R. § 103.121(a)(3)(i). (Emphasis added.) Account means a formal banking relationship established to provide or engage in services, dealings, or other financial transactions including a deposit account, a transaction or asset account, a credit account, or other extension of credit. 31 C.F.R. § 103.121(a)(1)(i). For purposes of the CIP rule, each time a loan is renewed or a certificate of deposit is rolled over, the bank establishes another formal banking relationship and a new account is established. However, the rule provides that the term customer does not include a person that has an existing account with the bank, provided that the bank has a reasonable belief that it knows the true identity of the person. 31 C.F.R. § 103.121(a)(3)(ii)(C). In each of these cases, the customer has an existing account. Therefore, as long as the bank has a reasonable belief that it knows the persons true identity, the bank need not perform its CIP when a loan is renewed or certificate of deposit is rolled over. However, if a new customer is added to the loan or deposit account, the bank would need to satisfy the CIP rule with respect to that new account relationship.
2. Does the exclusion from the definition of customer in 31 C.F.R. § 103.121(a)(3)(ii)(C) for a person with an existing account extend to a person who has had an account with the bank in the last twelve months but who no longer has an account?
No, this provision only excludes from the definition of customer a person that at the time a new account is opened currently has an existing account with the bank, and only if the bank has a reasonable belief that it knows the true identity of the person. Therefore, for example, when a person has a deposit account and subsequently obtains a loan, the person has an existing account with the bank. Conversely, a person would not be deemed to have an existing account at the bank if the person had a loan, paid it off, and twelve months later obtains a new loan.
3. How can a bank demonstrate that it has a reasonable belief that it knows the true identity of a person with an existing account with respect to persons that had accounts with the bank as of October 1, 2003?
Among the ways a bank can demonstrate that it has a reasonable belief is by showing that prior to the issuance of the final CIP rule, it had comparable procedures in place to verify the identity of persons that had accounts with the bank as of October 1, 2003, though the bank may not have gathered the very same information about such persons as required by the final CIP rule. Alternative means include showing that the bank has had an active and longstanding relationship with a particular person, evidenced by such things as a history of account statements sent to the person, information sent to the IRS about the persons accounts without issue, loans made and repaid, or other services performed for the person over a period of time. This alternative, however, may not suffice for persons that the bank has deemed to be high risk.
4. Can a bank exclude from the definition of customer a person that has an existing account with its affiliate?
No, a person that has an existing account with a bank affiliate does not qualify as a person who has an existing account with the bank within the meaning of 31 C.F.R. § 103.121(a)(3)(ii)(C). However, the bank may be able to rely on its affiliate to perform elements of its CIP, as provided in 31 C.F.R. § 103.121(b)(6).
Yes, the number on the roadside mailbox on a rural route is acceptable as an address. A rural route number, unlike a post office box number, is a description of the approximate area where the customer can be located. In the absence of such a number, and in the absence of a residential or business address for next of kin or another contact individual, a description of the customers physical location will suffice.
2. Can a bank open an account for a U.S. person that does not have a taxpayer identification number?
No, the bank cannot unless the customer has applied for a taxpayer identification number, the bank confirms that the application was filed before the customer opened the account, and the bank obtains the taxpayer identification number within a reasonable period of time after the account is opened. Note, however, that a bank does not need to obtain a taxpayer identification number when opening a new account for a customer that has an existing account, as long as the bank has a reasonable belief that it knows the true identity of the customer. A bank may also open an account for a person who lacks legal capacity with the identifying information, including taxpayer identification number, of an individual who opens an account for that person.
1. Must a bank verify the accuracy of all of the identifying information it collects in connection with 31 C.F.R. § 103.121(b)(2)(i)?
The final rule provides that a banks CIP must contain procedures for verifying the identity of the customer, using the information obtained in accordance with paragraph (b)(2)(i), namely the identifying information obtained by the bank. 31 C.F.R. § 103.121(b)(2)(ii). A bank need not establish the accuracy of every element of identifying information obtained but must do so for enough information to form a reasonable belief it knows the true identity of the customer. See 68 FR 25090, 25099 (May 9, 2003).
2. Can a bank use an employee identification card as the sole means to verify a customers identity?
A bank using documentary methods to verify a customers identity must have procedures that set forth the documents that the bank will use. The CIP rule gives examples of types of documents that have long been considered primary sources of identification and reflects the Agencies expectation that banks will obtain government-issued identification from most customers. However, other forms of identification may be used if they enable the bank to form a reasonable belief that it knows the true identity of the customer. Nonetheless, given the availability of counterfeit and fraudulently obtained documents, a bank is encouraged to obtain more than a single document to ensure that it has a reasonable belief that it knows the customers true identity.
3. Can a bank use an electronic credential, such as a digital certificate, as a non-documentary means to verify the identity of a customer that opens an account over the Internet or through some other purely electronic channel?
A bank may obtain an electronic credential, such as a digital certificate, as one of the methods it uses to verify a customers identity. However, the CIP rule requires the bank to have a reasonable belief that it knows the true identity of the customer. Therefore, for example, the bank is responsible for ensuring that the third party uses the same level of authentication as the bank itself would use. See also FFIEC guidance titled Authentication in an Electronic Banking Environment (July 30, 2001).
4. How should a bank verify the identity of a partnership that opens a new account when there are no documents or non-documentary methods that will establish the identity of the partnership?
A bank opening an account for such a partnership must undertake additional verification by obtaining information about the identity of any individual with authority or control over the partnership account, in order to verify the partnerships identity, as described in 31 C.F.R. § 103.121(b)(2)(ii)(C).
5. How should a bank verify the identity of a sole proprietorship that opens a new account, (such as an account titled in the name of an individual doing business as a sole proprietorship) when there are no documents or non-documentary methods that will establish the identity of the sole proprietorship?
In some states, sole proprietorships are required to file fictitious or assumed name certificates. Banks may choose to use these certificates as a means to verify the identity of a sole proprietorship, if appropriate. However, when there are no documents or non-documentary methods that will establish the identity of the sole proprietorship, the bank must undertake additional verification by obtaining information about the sole proprietor or any other individual with authority or control over the sole proprietorship account -- such as the name, address, date of birth, and taxpayer identification number of the sole proprietor, or any other individual with authority or control over the account -- in order to verify the sole proprietorships identity, as described in 31 C.F.R. § 103.121(b)(2)(ii)(C).
1. Would it be acceptable to retain a description of the non-documentary customer verification method used (such as a consumer credit report or an inquiry to a fraud detection system) in a general policy or procedure instead of recording the fact that a particular method was used on each individual customer's record?
Yes, provided that the record cross-references the specific provision(s) of the risk-based procedures contained in the banks CIP used to verify the customers identity.
2. Can a bank keep copies of documents provided to verify a customers identity, in addition to the description required under 31 C.F.R. § 103.121(b)(3)(i)(B), even if it is not required to do so?
Yes, a bank may keep copies of identifying documents that it uses to verify a customers identity. A banks verification procedures should be risk-based and, in certain situations, keeping copies of identifying documents may be warranted. In addition, a bank may have procedures to keep copies of documents for other purposes, for example, to facilitate investigating potential fraud. (These documents should be retained in accordance with the general recordkeeping requirements in 31 C.F.R. § 103.38.) Nonetheless, a bank should be mindful that it must not improperly use any document containing a picture of an individual, such as a drivers license, in connection with any aspect of a credit transaction.
1. Does the original information obtained during account opening have to be retained or can the bank satisfy the recordkeeping requirement by just keeping updated information about the customer, i.e., the customers current address?
The CIP rule requires that a bank retain the identifying information obtained about the customer at the time of account opening for five years after the date the account is closed or, in the case of credit card accounts, five years after the account is closed or becomes dormant. 31 C.F.R. § 103.121(b)(3)(ii). Updated information serves valuable, but different, purposes.
2. If the bank requires a customer to provide more identifying information than the minimum during the account opening process, does it have to keep this information for more than five years?
The bank must keep for five years after the account is closed, or in the case of credit card accounts, five years after the account is closed or becomes dormant, all identifying information it gathers about the customer to satisfy the requirements of § 103.121(b)(2)(i) of the CIP rule. 31 C.F.R. § 103.121(b)(3)(ii). This would include any identifying information, the bank will use, at the time the account is opened, to establish a reasonable belief it knows the true identity of the customer. So, for example, if the bank obtains other identifying information at account opening in addition to the minimal information required, such as the customer's phone number, then the bank must keep that information.
3. How does the record retention period apply to a customer who simultaneously opens multiple accounts in the bank?
If several accounts are opened for a customer simultaneously, all identifying information about a customer obtained under 31 C.F.R. § 103.121(b)(2)(i) must be retained for five years after the last account is closed or, in the case of credit card accounts, five years after the last account is closed or becomes dormant. All remaining records must be kept for five years after the records are made.
No such list has been designated to date. Banks will be contacted by their functional regulators when a list is issued. As of the time of publication, lists published by OFAC have not been designated as lists for purposes of the CIP rule. Of course, banks are separately obligated to check these lists in accordance with OFACs regulations.
1. Does a bank have to provide notice to all owners of a joint account?
Yes, notice must be provided to all owners of a joint account. In addition, notice must be provided in a manner reasonably designed to ensure that a customer is able to view the notice, or is otherwise given notice, before opening an account. 31 C.F.R. § 103.121(b)(5)(ii). The Agencies agree that a bank may satisfy this requirement by directly providing the notice to any one accountholder of a joint account for delivery to the other owners of the account. Similarly, the bank may open a joint account using information about each of the accountholders obtained from one accountholder, acting on behalf of the other joint accountholders.
2. How should a bank provide notice to its customer when it engages in indirect lending through a third party such as a mortgage broker or car dealer?
When a mortgage broker or car dealer is acting as the bank's agent in connection with a loan, the bank may delegate to its agent the obligation to perform the requirements of the banks CIP rule. In contrast to the reliance provision in the CIP rule, the bank is ultimately responsible for its agents compliance with the rule. Depending upon the manner in which the account is opened, the agent can provide notice to the banks customer, for example, by posting a sign, printing the notice on the loan application given to the customer, orally providing the notice, or by providing the notice in any manner that is reasonably designed to ensure that the customer is given notice before opening an account.
1. Where a bank is entitled to rely on another financial institution to perform its CIP, whose CIP must the relied-upon financial institution implement?
Note that a bank can only use the reliance provision when the other financial institution is regulated by a Federal functional regulator and is subject to a general BSA compliance program rule, they share the customer, the bank can show its reliance upon the other financial institutions performance of an element of the banks CIP was reasonable under the circumstances, and the requisite contract is signed and certifications provided.
2. When a longstanding customer of another financial institution (including an affiliate) opens a new account at the bank, can a bank rely on the other financial institutions verification of the identity of the customer performed before a CIP procedure was required?
In addition, even when a bank is relying on the verification of identity performed by another institution, the bank would continue to be responsible for complying with all remaining requirements of the CIP rule, namely, the requirement that it keep records, provide customer notice, and as soon as a section 326 list has been designated, check the list when a new account is opened.


Lawriter - ORC - 5751.01 Definitions.
(5) Is domiciled in this state as an individual or for corporate, commercial, or other business purposes.
(J) "Tangible personal property" has the same meaning as in section 5739.01 of the Revised Code.
(K) "Internal Revenue Code" means the Internal Revenue Code of 1986, 100 Stat. 2085, 26 U.S.C. 1, as amended. Any term used in this chapter that is not otherwise defined has the same meaning as when used in a comparable context in the laws of the United States relating to federal income taxes unless a different meaning is clearly required. Any reference in this chapter to the Internal Revenue Code includes other laws of the United States relating to federal income taxes.
(L) "Calendar quarter" means a three-month period ending on the thirty-first day of March, the thirtieth day of June, the thirtieth day of September, or the thirty-first day of December.
(M) "Tax period" means the calendar quarter or calendar year on the basis of which a taxpayer is required to pay the tax imposed under this chapter.
(N) "Calendar year taxpayer" means a taxpayer for which the tax period is a calendar year.
(O) "Calendar quarter taxpayer" means a taxpayer for which the tax period is a calendar quarter.
(5) A person acting as an agent of the division of liquor control under section 4301.17 of the Revised Code.
(Q) "Received" includes amounts accrued under the accrual method of accounting.
(R) "Reporting person" means a person in a consolidated elected taxpayer or combined taxpayer group that is designated by that group to legally bind the group for all filings and tax liabilities and to receive all legal notices with respect to matters under this chapter, or, for the purposes of section 5751.04 of the Revised Code, a separate taxpayer that is not a member of such a group.
Amended by 132nd General Assembly File No. TBD, HB 133, §1, eff. 9/28/2018.
Amended by 131st General Assembly File No. TBD, SB 208, §1, eff. 2/15/2015.
Amended by 130th General Assembly File No. TBD, HB 492, §1, eff. 9/17/2014.
Amended by 130th General Assembly File No. 41, HB 72, §3, eff. 1/30/2014.
Amended by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013 and 7/1/2014.
Amended by 130th General Assembly File No. 2, SB 28, §1, eff. 3/22/2013.
Amended by 129th General AssemblyFile No.186, HB 510, §1, eff. 3/27/2013, applicable to tax periods beginning on or after January 1, 2014 except for a taxpayer that is a corporation or any other person directly or indirectly owned by one or more insurance companies subject to the tax imposed by section 5725.18 or Chapter 5729. of the Revised Code; for such taxpayers, the amendment applies to tax periods beginning on or after January 1, 2013.
Amended by 129th General AssemblyFile No.188, HB 472, §1, eff. 12/20/2012.
Amended by 129th General AssemblyFile No.117, HB 508, §1, eff. 9/6/2012.
Amended by 129th General AssemblyFile No.44, HB 277, §1, eff. 10/17/2011.
Effective Date: 06-30-2005; 03-30-2006; 2006 HB699 03-29-2007 .
Related Legislative Provision: See 131st General Assembly File No. TBD, HB 340, §803.30.
See 131st General Assembly File No. TBD, SB 208, §5.
See 131st General Assembly File No. TBD, HB 64, §803.310.
See 130th General Assembly File No. TBD, HB 492, §4.
See 130th General Assembly File No. 41, HB 72, §3.
See 130th General Assembly File No. 25, HB 59, §803.90.
See 129th General AssemblyFile No.186, HB 510, §5 .
See 129th General AssemblyFile No.186, HB 510, §4 .


text:
Etusivu Artikkelit Punitive damages slipping into IP enforcement in Europe?
Punitive damages slipping into IP enforcement in Europe?
The U.S. is known to have a regime of punitive damages in many different areas of law. This concept has however not won any significant ground in Europe, where one usually is allowed to be awarded only the actual damages suffered.
On 25 January 2017, the CJEU handed down a quite remarkable judgment on damages in IP infringement cases (case C-367/15). The Polish Supreme Court had sought guidance from the CJEU on how to interpret the Enforcement Directive (2004/48/EC).
Poland had a national provision, which provided an alternative for an IP holder to seek damages corresponding to two or three times of a hypothetical license fee. The question was whether the Polish national provision could be seen to be compatible with EU law. The Advocate General (AG), in essence, answered in the negative (AG opinion). But the CJEU took a different approach. The CJEU concluded that the Enforcement Directive does not as such preclude a provision allowing for an IP holder to claim twice the amount of a hypothetical license fee. In its reasoning, the CJEU inter alia referred to international instruments (TRIPS, Berne, Rome) and also emphasized the fact that the Enforcement Directive is a minimum standard directive.
The CJEU did however not consider whether or not a triple hypothetical license fee would also have been in line with EU law, since the Polish Constitutional Court had, after the order for reference, declared such a rule to be unconstitutional (with retroactive effect).
The judgment of the CJEU means that including a national rule providing for the IP holder to seek damages higher than a hypothetical license fee may not be contrary to EU law. Theoretically, this could be viewed as a step into the realm of damages that could be considered “punitive” to a certain extent. Such a definition may be debated of course, given that the IP holder may have suffered other financial loss, such as indirect damages and costs for enforcement etc. But it can be perceived to be a step away from the requirement to prove actual damages suffered. Nevertheless, the court is careful in its wording, limiting its interpretation to a double hypothetical license fee and requires the national court to take into account “all the appropriate aspects of a particular case”. Also, since the CJEU did not address the question regarding a rule on a triple hypothetical license fee, one could ask whether in fact such damages or even a higher amount could in fact also be in accordance with EU law, given that the Enforcement Directive is, as earlier pointed out, a minimum standard directive? Would such a question have to be referred to the CJEU again for a new interpretation?
This development should be closely followed, since it addresses a very important part of IP enforcement in Europe, i.e. damages.
This text has been published first time on the TRUSTinIP blog on 1 February 2017.

matches: CJEU CJEU CJEU CJEU CJEU CJEU CJEU CJEU CJEU


Lynn Hershman Leeson. Production still from the Art21 television series "Art in the Twenty-First Century," Season 9. © Art21, Inc. 2018.
Katy Grannan. Production still from the Art21 television series "Art in the Twenty-First Century," Season 9. © Art21, Inc. 2018.
Production still from the Art21 television series "Art in the Twenty-First Century," Season 9, Stephanie Syjuco. 2018. © Art21, Inc. 2018.
Creative Growth Art Center, Oakland, CA, USA. Production still from the Art21 television series "Art in the Twenty-First Century," Season 9. © Art21, Inc. 2018.
As each artist draws inspiration from their surrounding communities, they also travel to museums and public spaces internationally to share their work reminding us of the increasingly global nature of the world we live in. The artists in this season examine the complicated histories of colonization, war and migration, offer new perspectives on our interactions with technology and the environment, critique our conceptions of gender, sexuality and race, and ultimately inspire us to see our world in new ways.
San Francisco Bay Area features Creative Growth Art Center, and artists Katy Grannan, Lynn Hershman Leeson, and Stephanie Syjuco.


text:
Article 59. Validity of secondary homonyms.
59.1. Taxa considered congeneric. A species-group name while a junior secondary homonym must be treated as invalid by anyone who considers that the two species-group taxa in question are congeneric.
59.2. Secondary homonyms not replaced when no longer considered congeneric. If in a case of secondary homonymy the junior species-group name has not been replaced [Art. 60], and the relevant taxa are no longer considered congeneric, the junior name is not to be rejected, even if one species-group name was originally proposed in the current genus of the other.
Example. Zetterstedt (1855) established the new species Platyura nigriventris, which is now placed in the genus Orfelia. In 1910 Johannsen established the new species Apemon nigriventris, which was later referred to Platyura, its present position. The two species are not now treated as congeneric, and inasmuch as nigriventris (Johannsen) was never renamed in Platyura, a substitute name is not necessary.
59.3. Secondary homonyms replaced before 1961 but no longer considered congeneric. A junior secondary homonym replaced before 1961 is permanently invalid unless the substitute name is not in use and the relevant taxa are no longer considered congeneric, in which case the junior homonym is not to be rejected on grounds of that replacement.
Example. Deignan (1947) on taxonomic grounds merged the avian genera Muscicapa Brisson, 1760, Ficedula Brisson, 1760 and Niltava Hodgson, 1837 and took the first name as valid. He replaced seven resulting junior secondary homonyms, but because his classification and substitute names are not in use the species-group names that were replaced are not to be rejected under this Article.
59.3.1. If the use of a substitute name for a junior secondary homonym is a cause of confusion, the case is to be referred to the Commission for a ruling (under the plenary power if necessary, see Article 81) as to which name will, in its judgment, best serve stability and universality, and that name is then the valid name.
59.4. Reinstatement of junior secondary homonyms rejected after 1960. A species-group name rejected after 1960 on grounds of secondary homonymy is to be reinstated as valid by an author who considers that the two species-group taxa in question are not congeneric, unless it is invalid for some other reason.
Example. Aus niger Smith, 1950, if transferred after 1960 to Bus, becomes a junior secondary homonym of Bus niger Dupont, 1940, and is renamed Bus ater Jones, 1970. However, an author who does not consider that the two species are congeneric is to reinstate niger Smith as the valid specific name for the species concerned, with ater Jones as a junior synonym.
FranciscoWelterSchultes Art. 59.3 was once again critically commented in the [iczn-list] forum, 22 Sept 2012. M. Alonso-Zarazaga affirmed that the rule was not applied in Coleoptera. It creates the same category of problems as in Art. 23.9.5 (see my detailed comment there).
The mix-up of taxonomy and nomenclature was also addressed in a comment by Chris Thompson who emphasized that those in the 4th edition Committee who promoted these Articles did not consider that in zoology there does not exist an officially approved taxonomy.
FranciscoWelterSchultes CouldNotLock error in Art. 57 and Art. 58. I am trying to insert this here.
A name first mentioned as a junior synonym and later validated under Art. 11.6.1 takes the lowest rank of any mentioned species-group names.
It would be useful to specify precedence for names which were validated under Art. 11.6.1. My proposal is to give names which were first mentioned as synonyms the lowest rank of all. This would conribute to help reducing a little the burden created by Art. 11.6.1 in so many molluscan names.
I have no example for this case, but the more names are going to emerge out of the obscure literature (synonyms have never been recorded by indexers, every year new old synonyms are digged out and threaten widely used names), the more it gets likely to find such cases.
FranciscoWelterSchultes Art. 59.3 should be removed (and replaced by the provisions of Art. 59.4 which should extend to before 1961) or substantially modified as proposed below.
The general problem is Art. 59.3 is that taxonomy and nomenclature are mixed up, and that the Code rules only nomenclature, not taxonomy. The use of the present tense ("is" not in use) is not applicable, and should be replaced by objectively determinable terms.
How much time must pass away that we can say "the name was used in the past and is no longer used now", so that the widely used name can be used again? 2 years? 20 years? Does it depend from the frequency with which the name is mentioned in the literature? In which kind of literature?
A solution would be to copy and paste the provisions of Art. 23.9 for the situation here. It would be good to have an objectively determinable provision, which name should be used for a species.
"59.3. Secondary homonyms replaced before 1961 but no longer considered congeneric. A species-group name rejected before 1961 on grounds of secondary homonymy is to be reinstated as valid by an author who considers that the two species-group taxa in question are not congeneric, unless it is invalid for some other reason.
An author who discovers that a junior secondary homonym was replaced before 1961 and the substitute name has recently been used by many authors should cite the two names together and state explicitly that the younger name should be used for the taxon, and that the action is taken in accordance with this Article; at the same time the author must give evidence that to his or her knowledge, the condition in Article 23.9.1.2 applies. From the date of publication of that act the younger name has precedence over the older name. When cited, the younger name may be qualified by the term nomen protectum and the older name by the term nomen oblitum (see Glossary)."
The Code does not know an example where Art. 59.3 is actually applied and necessary. I do not know any case either. I know some cases where Art. 59.3 has only caused trouble.
Glischrus caelata Studer, 1820 (Gastropoda, currently in the genus Trochulus) was once classified in Helix and became a junior secondary homonym of Helix caelata [Vallot], 1801 (currently in genus Candidula). Studer's name was replaced by Helix glypta Locard, 1880, a name that since then has very rarely been used (the genus Helix was split up shortly after). Falkner 1996 considered Glischrus caelata as permanently invalid. Turner et al. 1998 announced to refer the case to the Commission, but this never happened. The species is known under the name Trochulus caelatus, the community did not follow Falkner's action.
Balea cyclostoma Bielz, 1858 (Gastropoda, currently in genus Alopia) was established for a species from Romania, not Clausilia cyclostoma Pfeiffer, 1850 from Korea. Most contemporary authors (Pfeiffer, Westerlund, Bielz, Clessin, Kimakowicz) classified Balea and Clausilia as different genera, except Kobelt who classified both species in Clausilia and in 1879 used a substitute name Clausilia pomatias Pfeiffer, 1868 (or 1865, depends on your personal interpretation of Art. 11.6) for Balea cyclostoma Bielz. After 1900 most local authors (Sóos 1928, Grossu 1955, Szekeres 1969, Grossu 1981) have used Balea cyclostoma, but suddenly Nordsieck 2008 used again Clausilia pomatias.
The examples demonstrate that Art. 59.3 has been used to threaten the stability of nomenclature.

matches:
Art. 59
Art. 23
Art. 57
Art. 58
Art. 11
Art. 11
Art. 11
Art. 59
Art. 59
Art. 59
Art. 23
Art. 59
Art. 59
Art. 11
Art. 59


1. STATUTES. Where Supreme Court had construed statutory provision that certificates of nominations should be filed not more than specified number of days, nor less than specified number of days before election, as requiring that both the day of filing and the day of election must be excluded before the enactment of statute containing similar language, the legislature must be held to have adopted the Supreme Court's prior construction. Laws 1937, c. 29, § 16, as amended by Laws 1939, c. 37. 2. TIME. Under statute requiring that nomination petitions and designations of nomination be filed with county clerk not more than 100 days or less than 40 days before the time fixed by law for the primary election, both the filing day and the primary election day must be excluded in determining whether petitions and designations were timely filed. Laws 1937, c. 29, § 16, as amended by Laws 1939, c. 37.fn1 3. EVIDENCE. Where a system of time is and has been in universal use the courts not only may but should take judicial notice of that fact. 4. TIME. When time is a material ingredient, at least so far as laws are concerned, the court should apply the time in general use and not that which by common consent has been discarded and has thus become obsolete.fn2 5. TIME. Under statute providing that all applications of persons for political party nominations must be filed not later than 5 p.m. on the last day on which the filing may be made, filing of petition to have name placed on primary ballot as candidate for nomination by Republican Party as its candidate for office of county assessor at 5:15 p.m. mountain wartime on the last day for filing petitions did not comply with statute although statute was passed when wartime or daylight saving time was not in effect. Laws 1937, c. 29, § 16, as amended by Laws 1939, c. 37.fn2 6. STATUTE. Where prior to enactment of statute specifying time within which applications for political party nominations should be filed court had laid down rule for construction of time statutes, the legislature must be held to have intended to adopt such rule where no other rule was prescribed. Laws 1937, c. 29, § 16, as amended by Laws 1939, c. 37.fn1 7. ELECTION. The background out of which the primary election law emerged and the conditions which it was sought to remedy thereby must be borne in mind in seeking to understand and harmonize the various provisions of such law. Laws 1937, c. 29, § 16, as amended by Laws 1939, c. 37. 8. ELECTIONS. When the time for filing nomination petitions closes without filing of any petitions in conformity with statute, the rights of the parties to nominate for a position on the ticket is foreclosed. Laws 1937, c. 29, §§ 5, 13, 14, 17, § 40, as amended by Laws Utah 1939, c. 37. 9. ELECTIONS. The statutory provision that vacancies on ticket occurring between any primary election and general election shall be filled by party committee and that the nominee receiving the next largest vote at the primary election shall be named by party committee to fill vacancy, provided he received not less than 25 per cent of the nominating vote, shows that legislature intended to confine party candidates to those who had filed for nomination at the primary election provided that they had received not less than 25 per cent of the nominating vote. Laws 1937, c. 29, § 40, as amended by Laws Utah 1939, c. 37. 10. ELECTIONS. The general purpose of the legislature in enacting mandatory primary laws was to preclude the making of nominations by conventions, party committees, and the like, and to require the people themselves by their direct vote to name party nominees. Laws 1937, c. 29, § 40, as amended by Laws Utah 1939, c. 37. 11. ELECTIONS. The only "vacancies" contemplated by Primary Election Law to be filled by party committee are such as may occur after the people themselves have made nominations and vacancies therein have occurred by death, resignation or other incapacity, which might, perhaps, include forfeiture to be determined by resolution of proper executive committee on proper and sufficient cause shown, and the law should not be interpreted so as to allow a political party to ignore the mandatory requirement to nominate candidates by primaries and to substitute some other method of selecting original party nominees. Laws 1937, c. 29, § 40, as amended by Laws Utah 1939, c. 37. See Words and Phrases, Permanent Edition, for all other definitions of "Vacancy." 12. ELECTIONS. The primary election law providing for filling of "vacancies on the ticket" occurring between any primary election and general election does not permit the filling of vacancies where there has been no nomination, or where no person shall have offered himself as a candidate in the primary. Laws 1937, c. 29, § 40, as amended by Laws Utah 1939, c. 37. See Words and Phrases, Permanent Edition, for all other definitions of "Vacancy on the Ticket." 13. ELECTIONS. The Supreme Court must construe the language of the primary election law as the court finds it. Laws 1937, c. 29, § 40, as amended by Laws Utah 1939, c. 37. 14. ELECTIONS. Under statute providing for the filling of vacancies on the ticket occurring between primary election and general election by party committee, the party committee has no power to make an original nomination, but the authority of the committee to nominate is contingent upon a prior primary nomination followed by a vacancy in that nomination and where a primary has been held in which there were no candidates for nomination for an office, the committee is without power to act. Laws 1937, c. 29, § 40, as amended by Laws Utah 1939, c. 37. 15. ELECTIONS. Under primary election statute, one whose name does not appear on the primary ballot cannot win a party nomination by having his name written in at the primary election since the write-in privilege is limited to the names already appearing on the printed ballot. Laws 1937, c. 29, §§ 5, 45; Rev. St. 1933, 25-6-5, 25-6-20. 16. ELECTIONS. Constitutional provision that all elections shall be free and that no power civil or military shall at any time interfere to prevent the free exercise of the right of suffrage guarantees the qualified elector the free exercise of his right of suffrage but does not guarantee any person the unqualified right to appear as a candidate upon the ticket of any political party. Cont. art. 1, § 17. 17. ELECTIONS. The constitutional provision that all elections shall be free cannot be construed to deny the legislature the power to provide regulations, machinery and organization for exercising the elective franchise, or to inhibit it from prescribing reasonable methods and proceedings for determining and selecting the persons who may be voted for at an election. Const. art. 1, § 17. 18. CONSTITUTIONAL LAW. The constitutional provision for free elections is not "self-executing" but requires the legislature to provide by law for the conduct of elections and the means of voting and the methods of selecting nominees. Const. art. 1, § 17. See Words and Phrases, Permanent Edition, for all other definitions of "Self-Executing." 19. ELECTIONS. The constitutional provision for free elections does not require reading into the direct primary law a provision which would avoid the evident purposes of such law to place the selection of candidates who are to appear upon the ticket of a political party in the hands of the electors within the party through the exercise of their elective franchise. Laws 1937, c. 29, §§ 5, 45; Rev. St. 1933, 25-6-5, 25-6-20; Const. art. 1, § 17. 20. ELECTIONS. The absence of a write-in provision does not render primary election law unconstitutional as contrary to the constitutional provision for free elections. Laws 1937, c. 29, §§ 5, 45; Rev. St. 1933, 25-6-5, 25-6-20; Const. art. 1, § 17.
Wood v. Cowan, 68 Utah 388, 250 P. 979; Home Owners' Loan Corporation v. Stevens, 98 Utah 126, 97 P.2d 744.
Salt Lake City v. Robinson, 39 Utah 260, 116 P. 442, 35 L.R.A., N.S., 610, Ann. Cas. 1913E, 61.
See 18 Am. Jur., 275; 29 C.J.S., Elections, sec. 113.
Original mandamus proceeding by Floyd C. Anderson against Merlin Cook as acting county clerk of Box Elder County, Utah, to require the defendant to issue to plaintiff a certificate of nomination as a candidate for the office of county assessor of Box Elder County, Utah, to be voted for at the election to be held in November, 1942, and to print the name of plaintiff as such candidate on the official ballot. On defendant's demurrer to plaintiff's application.
Order in accordance with opinion.
David J. Wilson, of Ogden, and Elias Hansen, of Salt Lake City, for plaintiff.
Grover A. Giles, Atty. Gen., and A. John Brennan and Zar E. Hayes, Deputy Attys. Gen., for defendant.
"Nomination paper of Floyd C. Anderson for the office of County Assessor.
"For the purpose of having my name placed on the official Primary Ballot for nomination by the Republican party as its candidate for the office of County Assessor, I, the undersigned Floyd C. Anderson, do solemnly swear (or affirm) that I can qualify to hold said office both legally and constitutionally if elected, that I reside at Number 334 So. 2nd East street, in the city or town of Brigham, County of Box Elder, State of Utah, and that I am a member of the Republican party; that I believe in and intend to support throughout my term, if elected, the principles and policies of such political party; (that I affiliated with such party at the last general election of this State, and I voted for a majority of the candidates of such party at the last general election); that I intend to vote for a majority of the candidates of said party at the ensuing election for which I seek to be a candidate; that if nominated as a candidate of said Republican party at the ensuing election I will accept said nomination and, for the protection of the County Clerk, I agree that I will not withdraw as such candidate within the period of thirty days before the said regular primary election; that I will not knowingly violate any election law or any law defining and prohibiting corrupt and fraudulent practice in campaigns and elections in this state, and that I will qualify for said office if elected thereto.
That at the primary election held on the first Tuesday of September, 1942, no name appeared on the offical ballot used at such primary election on the Republican ticket for the office of County Assessor of Box Elder County, Utah, and no petition or nominating paper was filed for such office other than by plaintiff.
That the Republican Party of Utah polled more than two per cent of the total vote cast for representatives to Congress in the general election held in Utah in 1939.
It is further admitted by both parties that the name of the plaintiff did not appear as a candidate for the office of County Assessor of Box Elder County, Utah, or for any other position on the ticket in the primary election.
1. Was the nomination petition filed within the statutory time?
2. Does the County Central Committee of a political party have the power to designate a candidate for a particular office where no petition of nomination of anyone has been previously filed?
3. Where no petition for nomination for a particular office has been filed, can an elector at a primary election, by writing in the name of a person, nominate a person for such office?
A. Was a petition filed subsequent to 5 o'clock p.m. on July 22nd, but prior to 5 o'clock p.m. July 23rd, 1942, filed within the period permitted by statute?
B. Was a petition filed at 5:15 p.m. Mountain War Time on the last day for filing petitions as allowed by statute filed within the statutory time?
"Nomination petitions and designations of nomination required by this chapter to be filed with the county clerk shall be filed not more than one hundred days or less than forty days before the time fixed by law for the primary election. * * *"
It is conceded that election day (September 1st) is not to be counted but plaintiff argues that counting backwards from that date, using August 31 as day one, July 23rd would be the fortieth day, and what is done on the fortieth day is done "[not] less than forty days" before. Unfortunately for 1, 2 plaintiff this court, prior to the enactment of the statute in question, held that the language, "not less than fifteen days before election" meant that fifteen complete days must elapse between the date of filing and the day of election, and neither of those days could be counted in the fifteen days. Wood v. Cowan, 68 Utah 388, 250 P. 979. It must follow that when the legislature used in the present statute the language so construed, it intended the same meaning and construction. See, also, Home Owners' Loan Corporation v. Stevens, 98 Utah 126, 97 P.2d 744. So computing time the petition must needs have been filed on or before July 22nd.
"* * * All applications of persons for political party nominations must be filed with and received by the proper election officers not later than 5 p.m. on the last day which the filing may be made under the provisions of this section * * *."
The plaintiff contended that since the act was passed at a time when what is commonly known as War Time, or Daylight Saving Time, was not in effect, that the Legislature contemplated the time which was in effect at the time the statute was passed as the time which would govern in determining filing time so long as the statute remained upon our books.
"* * * When, therefore, the system is and has been in universal use, as in Salt Lake City, or as in New York City, as illustrated in the case of Globe, etc., Inc. Co. v. David Moffat Co., supra [2 Cir., 154 F. 13], the courts not only may, but should, take judicial notice of that fact; and when time is a material ingredient, at least so far as laws are concerned, courts should apply the time in general use, and not that which by common consent has been discarded and has thus become obsolete."
So here, when not only the State of Utah but practically the entire nation entered upon and put into use what we call War Time, and practically all business, public and private, including schools, transportation systems, banks, stores, mail service, etc., operate upon such schedule, it becomes 5, 6 the time in general use, the standard time on which business operates and regulates political as well as social and economic life. Here too, the court having, prior to this statute, laid down the rule for construction of time statutes, it must follow that had the legislature intended some other basis of computation it would have so specified. It follows therefore that the petition was not tendered to the respondent clerk in time.
We come now to question number 2: Does the party committee have power to designate a party candidate for an office for which no member of that party had filed for the primary election? The direct primary law was enacted in this state after a series of rather hectic conventions' battles for party 7 nominations extending over some years, marked each succeeding election year by a growing demand for direct primary system of nominations. The struggles between factions within the parties, commonly called by such names as the "organization," the "machine," the "rank and file," "conservative and progressive," were often so bitter and strong as to defeat on election day a person nominated by the convention although the party won. The background out of which the act emerged, and the conditions which it was sought to remedy by the act must be borne in mind in seeking to understand and harmonize its various provisions. The act divides candidates for public office generally into two groups: Candidates of political parties, and independent candidates. Different methods of nomination are set up for the two classes. This reflects the legislative consciousness that political parties, having well-developed organizations extending from the state committee down to each election district (they are provided for by the act itself), has the equipment and machinery, unless carefully circumscribed, for selecting the party nominees through the same means and methods as the convention system. To prevent or lessen this dominance of particular groups over party nominations, the primary election was provided, whereby each individual member of the party could express his choice for party nominees, free from the pressure and surveillance of persons in a position of advantage over them.
It then provides (Section 13) that any person desiring to become a candidate for a political party nomination shall file a petition not less than forty days before the primary election, to be placed upon the primary ballot. In this petition he must swear or affirm certain facts with respect to his 8 political beliefs, history, and future conduct, and pay the fees provided. By Section 14, ten electors, members of the same political party, may accomplish a similar result by designating a party member who does not personally file for the office. Thus, if no party member satisfactory to the party voluntarily seeks a nomination, the party is not precluded from having a candidate upon its ticket; nor is it bound to the candidacy of the persons who, on their own initiative, seek the nomination. When the time for filing nomination petitions closes (not less than forty days before the primary) the right of the party to nominate for a position on the ticket is foreclosed. Any candidate so filing, or accepting a filing, knows that for forty days before the primary election he is under the spotlight of political scrutiny, and if he cannot stand the test and pass the examination he will be eliminated by the rank and file of the party. There cannot be forced down the throats of the party membership a candidate they do not want. By Section 17, an elector who seeks a party nomination and offers to subject himself to this forty-day scrutiny, is entitled to the party nomination if no one else has filed for the place. Since no other party member sought the nomination, and no ten members of the party sought to enter another candidate, it is presumed that such candidate is wholly satisfactory to the party and is its unanimous choice. No political party is obligated to enter any candidate for all or for any office. Having through the medium of individuals entering as candidates, and the party privilege of entering candidates by petition of ten members, entered no candidates the law presumes that such party does not desire to enter a candidate for election to offices not so filled, and are foreclosed thereby from doing so. This seems to be the purpose, pattern, and general mosaic of the act.
"Vacancies on the ticket occurring between any primary election and general election shall be filled by the party committee of the county, district, or state as the case may be.
"The nominee receiving the next largest vote at the primary election shall be named by said party committee to fill the vacancy; provided, that he received not less than twenty-five per cent of the nominating vote."
"The general purpose of the Legislature in enacting mandatory primary laws was to preclude the making of nominations by convention, party committees, and the like, and to require that the people themselves, by their direct votes, should name party nominees. The only vacancies contemplated by section 14 of chapter 13761, supra, to be filled by executive committees, are such as may occur after the people themselves have made nominations, and vacancies therein have occurred by death, resignation, or other incapacity, which might perhaps include forfeiture to be determined by resolution of the proper executive committee on proper and sufficient cause shown.
"The statutory provision now before us should not be interpreted so as to allow a political party to ignore the mandatory requirement to nominate candidates by primaries, and to substitute some other method of selecting original party nominees.
"A `vacancy in nomination' is to be distinguished from a failure or omission to nominate at the primaries. There can be no `vacancy in a nomination' until there has first been a nomination. When no nomination has been made, there may be a vacancy on the party ticket for the general election, but there is no vacancy `in any nomination,' for there has been no nomination. The statute does not provide that, `if for any cause there is a failure or omission by any political party to designate a nominee in the primary,' then the executive committee may designate a nominee. If such had been the legislative intent, it would have been very easy to so provide."
"when no certificate of original nomination has been filed in the office of the secretary of state, there can be no substitution of names, because the secretary of state has nothing in his office showing who had originally been nominated for the office, and whose place the substitute is to fill."
See, also, Healey v. Wipf, 22 S.D. 343, 117 N.W. 521; State v. Polley, 30 S.D. 54, 137 N.W. 565; State ex rel. Pratt v. Hayward, 141 Iowa 196, 119 N.W. 620; State ex rel Corser v. Scott, 87 Minn. 313, 91 N.W. 1101; 9 R.C.L. 1089. See notes to State ex rel. Curyea v. Wells, 92 Neb. 337, 138 N.W. 165, 41 L.R.A., N.S., 1088. Other cases involving substantially the same question under substantially similar statutes are State ex rel. Bancroft v. Frear, 144 Wis. 79, 128 N.W. 1068, 140 Am. St. Rep. 992; Udie v. Byrne, 60 N.D. 108, 233 N.W. 648; State v. Hall, 37 N.D. 259, 163 N.W. 1055; State ex rel. Lamb v. Board of Ballot Com'rs, 82 W. Va. 752, 97 S.E. 284.
We are fortified in this conclusion by the provisions of Section 45 of Chapter 29. It is there provided that any qualified person may have his name printed upon the ballot for the general election as a candidate for any office to be filled at such election as an independent candidate for office, but not as the candidate of a political party. This harmonizes with the statement made earlier that political parties must select candidates who run under the party designation by the primary method or not at all. Section 5.
This brings us to the third question: Can one whose name does not appear on the primary ballot win a party nomination by having his name "written in" at the primary 15 election? Our statute is silent as to the right of a voter to write in names on the primary ballot, except as to one veiled implication referred to hereinafter.
The general election law provides that a blank ticket must be provided on the ballot to the right of the regular tickets wherein the voter may write in the name of any person for whom he desires to vote, and whose name does not appear for such office upon the ballot. Section 25-6-5, R.S.U. 1933. The law provides for scratching ballots at the general election. Section 25-6-20. This is not possible at the primary. At the general election there is specific provision for, and how to, vote for someone whose name is not upon the ticket, (write in). Section 25-6-20. No such provision is found in the primary law.
"* * * If any elector writes upon his ticket the name of any person who is a candidate for the same office upon some other ticket than that upon which his name is so written this ballot shall be counted for such person only as a candidate of the party upon whose ticket his name is written, and in no case shall be counted for such person as a candidate upon any other ticket."
This statement implies a right of a voter to "write in" some name. The question is: Can he write in any name or is he limited to names appearing upon the printed ballot, that is, to the names of persons who had filed for the office upon one ticket or another, who had declared themselves, and exposed themselves to the forty days of scrutiny and examination before the primary. Construing these two quotations together with the general purposes and mosaic of the act as developed above, we conclude that the "write in" privilege is limited to the names already appearing on the printed ballot. A voter may thereby, if after the forty days' examination and scrutiny of the candidate upon his party ticket, and the rival candidates upon other party tickets, reject all candidates for the office upon his ticket and give his vote for his party nomination to a candidate whom he thinks in the light of publicity and examination of his qualifications would, of all persons seeking the nomination at the primary, be the best candidate for his party. But such vote cannot be combined with the vote the candidate received on his own party ticket. His vote for the party nomination is measured by his vote under that party emblem, and not by his combined vote on all tickets as is done at the general election. Since the people in Utah are so familiar with the general "write in" practice and procedure, and the legislature has so carefully prescribed it for the general elections, and could so easily have done it here, we do not feel justified in writing into the statute what it seems clear the legislature definitely left out.
"All elections shall be free, and no power, civil or military, shall at any time interfere to prevent the free exercise of the right of suffrage."
While this provision guarantees the qualified elector the free exercise of his right of suffrage, it does not guarantee any person the unqualified right to appear as a candidate upon the ticket of any political party. It cannot be construed to deny the legislature the power to provide regulations, machinery and organization for exercising the elective franchise, or inhibit it from prescribing reasonable methods and proceedings for determining and selecting the persons who may be voted for at the election. The provision not being self-executing requires the legislature to provide by law for the conduct of elections, and the means of voting, and the methods of selecting nominees. Since the legislature has prescribed the nominating machinery, the method of selecting candidates for office to be voted on at the general election, the quoted constitutional provision does not require us to read into the direct primary act a provision which would avoid the evident purposes for which the law was enacted, to wit: placing the selection of candidates who are to appear upon the ticket of a political party in the hands of the electors within the party through the exercise of their elective franchise. In Earl v. Lewis, 28 Utah 116, 77 P. 235, we held that while the right of persons having the constitutional qualifications of a voter cannot be impaired, the voter himself may waive the exercise of that right by not exercising it in the manner prescribed by the statute. The absence of a "write in" provision does not void the law on constitutional grounds. We hold therefore that plaintiff is not entitled to appear upon the ballot for the general election as the Republican candidate for county assessor, and the application for the writ is denied. Costs to respondent.
PRATT, J., on leave of absence.


text:
The Respondent is Admin of the Day, No Brains Media of Kigali, Rwanda.
The disputed domain name <lufthannsa.com> is registered with 1st Antagus Internet GmbH.
The Complaint was filed with the WIPO Arbitration and Mediation Center (the “Center”) on October 19, 2011. On October 20, 2011, the Center transmitted by email to 1st Antagus Internet GmbH a request for registrar verification in connection with the disputed domain name. On October 21, 2011, 1st Antagus Internet GmbH transmitted by email to the Center its verification response confirming that the Respondent is listed as the registrant and providing the contact details.
In accordance with the Rules, paragraphs 2(a) and 4(a), the Center formally notified the Respondent of the Complaint, and the proceedings commenced on October 27, 2011. In accordance with the Rules, paragraph 5(a), the due date for Response was November 20, 2011. The Respondent did not submit any response. Accordingly, the Center notified the Respondent’s default on November 21, 2011.
The Center appointed Marilena Comanescu as the sole panelist in this matter on November 30, 2011. 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.
The Complainant is one of the leading airlines with a history dating back in 1926, carrying over 50 million passengers per year in more than 90 countries. Since 1990, the Complainant is a member of Star Alliance Network of airlines which is operating in almost all countries of the world.
In addition to its passenger and cargo services the Complainant provides aviation-related services such as catering, maintenance, overhaul, travel related technology and tourism services.
The Complainant operates an extensive website from the domain name <lufthansa.com>, which is related to its many other websites including the word “lufthansa”.
The Complainant owns numerous trademark registrations for, or including the word “Lufthansa” worldwide, such as the International Registrations for the word mark LUFTHANSA no. 450006 since 1979 and no. 722971 since 1999. The trademarks are registered for transportation services, incentive award programs and other services such as hotels, rental cars, credit cards, clothing.
Previous UDRP panels have already established that the Complainant’s trademark LUFTHANSA enjoys a substantial reputation and fame in many jurisdictions throughout the world. See also Deutsche Lufthansa AG v. Jin Wang Huh, WIPO Case No. D2001-1226; Deutsche Lufthansa AG v. Kudakwashe Musunga / PrivacyProtect.org, WIPO Case No. D2009-1754.
According to the available WhoIs information, the disputed domain name was “created” on March 9, 2008.
The disputed domain name is confusingly similar to the Complainant’s trademark as it includes it nearly in its entirety; the only difference is the insertion of the second letter “n” which is irrelevant for the present analysis, such an obvious typographical and phonetically identical misspelling being a typical case of typosquatting.
The goods and services claimed by the trademark registrations and the content of the website related to the disputed domain name are irrelevant. The disputed domain name is linked to the website <lufthannsa.com> which contains information about travel, hotel reservation and sponsored links concerning this topic.
In the present case there is no evidence that the Respondent is using the disputed domain name in connection to a bona fide offering of goods and services. At the time of filing of the Complaint the Respondent was using the disputed domain name in connection to a website displaying sponsored links containing information about travel, hotel reservations, thus capturing and redirecting the Internet users searching for the Complainant’s website to a commercial website unrelated to the Complainant. It is presumed that the Respondent receives click-through revenues in exchange for diverting Internet users to such websites.
The Complainant is the exclusive proprietor of the trademark LUFTHANSA and is not aware of any trademark application for the word “Lufthansa” or a similar word made by the Respondent or any other third party. There is no connection between the Complainant and the Respondent. Furthermore, the Complainant has not granted the Respondent any license, permission, authorization or other consent to use LUFTHANSA or a similar term in the disputed domain name.
The Complainant’s trademark is well-known and highly distinctive and it is inconceivable that the Respondent did not have actual notice of the Complainant’s trademark rights at the moment of registering the disputed domain name.
The Respondent registered the disputed domain name in 2008, almost 30 years after the earliest registration of the trademark LUFTHANSA and it is using it in relation to a commercial website providing sponsored links in relation to travel and aviation business. It defies common sense to believe that the Respondent chose exactly this name and it is using it in relation to identical activities; therefore, it is most likely that the Respondent was aware of the Complainant’s trademarks and company name. The Respondent’s intention is to free-ride on the fame of the LUFTHANSA trademarks and to capitalize the goodwill of the Complainant.
The disputed domain name is designed to attract Internet users who are looking for the Complainant’s website, cause confusion with the Complainant’s famous trademarks, disrupt the Complainant’s business by diverting consumers away from the Complainant’s website and do all these for commercial gain as the Respondent profits from the revenue generated by this website.
Furthermore, the Respondent did not respond to the Complainant’s letter sent prior to commencing these procedures and thus did not claim, nor prove a legitimate basis to register and use the disputed domain name.
Consequently, the Panel shall further analyse the eventual concurrence of the above-mentioned circumstances in the present case.
There are two requirements that a complainant must establish under this element, namely: that it has rights in a trademark, and, if so, that the disputed domain name is identical or confusingly similar to its mark.
The Complainant’s trademark is LUFTHANSA and Complainant’s main website operates under the domain name <lufthansa.com>. The disputed domain name is <lufthannsa.com> and incorporates the Complainant’s distinctive trademark in its entirety with a misspelling, namely the addition of a second letter “n”. The Panel agrees this is a classical typosquatting case and such addition does not assist the Respondent in escaping a finding of confusing similarity. See also Louis Vuitton v. Net-Promotion, WIPO Case No. D2000-0430; Dow Jones & Company, Inc. and Dow Jones LP v. John Zuccarini, WIPO Case No. D2000-0578.
The elements “www.” and “.com” may be considered as irrelevant for the similarity analysis in the sense of the Policy and have no distinguishing capacity in the context of assessing the identity or the confusing similarity of a disputed domain name. See also Reuters Limited v. Global Net 2000 Inc, WIPO Case No. D2000-0441.
The Complainant has provided a prima facie case under this element of the Policy showing that it has had no relationship with the Respondent and has not granted the Respondent any right to register and use its trademark. Therefore, the burden of production on this element shifts to the Respondent to demonstrate its rights or legitimate interests in the disputed domain name.
In this case the Respondent has not put forward any circumstances indicating its rights or legitimate interest in connection to the disputed domain name; the Respondent failed to submit any response both in the present procedure and to the Complainant’s letter sent prior to commencing this procedure. The silence of the Respondent may support a finding, based on other relevant circumstances, that it has no rights or legitimate interests in respect of the disputed domain name. See also Alcoholics Anonymous World Services, Inc. v. Lauren Raymond, WIPO Case No. D2000-0007; Ronson Plc v. Unimetal Sanayi ve Tic.A.S., WIPO Case No. D2000-0011.
Further, there is no evidence before the Panel to suggest that the Respondent has made a bona fide use of the disputed domain name, or has been known by the disputed domain name, or is making any legitimate noncommercial or fair use of the disputed domain name. To the contrary, the disputed domain name containing the Complainant’s well-known trademark in the airlines and related services industry is connected to a website offering sponsored links, most of these related to such activities.
The pay-per-click (PPC) websites would not normally fall within the bona fide use principles where such websites seek to take unfair advantage of the value of a trademark.
For all these reasons, the Panel finds that the second element of the Policy is established and the Respondent has no rights or legitimate interests in respect of the disputed domain name, pursuant to the Policy, paragraph 4(a)(ii).
Under the third element of the Policy and given the circumstances of the present case, it is not relevant where the Complainant’s trademarks are actually registered and where the apparent location of the Respondent is, mainly because: (i) the trademark LUFTHANSA is famous worldwide and the Complainant holds trademark registrations in many countries; (ii) the Complainant operates under this mark in more than 90 countries all over the world; (iii) the Respondent’s contact address as registered in the WhoIs database was not confirmed as being the accurate one and (iv) websites are accessible worldwide via the Internet.
The Complainant’s trademark LUFTHANSA is distinctive and enjoys the status of a well-known trademark in relation to airline activities and it has been used for decades in many countries worldwide. The disputed domain name <lufthannsa.com> was presumably registered in March 2008 and contains the Complainant’s trademark in its entirety with a minor typographical error.
For these reasons, the Panel concludes that the Respondent must have had actual knowledge of the Complainant’s trademark when the disputed domain name was registered.
Further, the Respondent is using the Complainant’s trademark for a web portal, the classic method to generate financial gain via the pay-per-click or click-through device, whereby the operators of other websites pay a commission to the Respondent for traffic redirected to them.
Paragraph 4(b)(iv) of the Policy sets out non-exclusive criteria which shall be evidence of the registration and use of the disputed domain name in bad faith including circumstances where, by using the disputed domain name, the Respondent has intentionally attempted to attract, for commercial gain, Internet users to its website or other online location, by creating a likelihood of confusion with the Complainant’s mark as to the source, sponsorship, affiliation, or endorsement of its website or location or of a product or service on its website or location.
Given the awareness of the LUFTHANSA brand worldwide, indeed, an Internet user accessing the website corresponding to the disputed domain name <lufthannsa.com> and on which webpage are listed links providing services in connection with the Complainant’s activities may be confused and believe that it is a website held, controlled by the Complainant, or somehow affiliated or related to it. In this way, the Respondent is obtaining commercial gain by diverting Internet users searching for the Complainant and thus, is also disrupting the business of the Complainant.
The Respondent chose not to participate in these proceedings and has not contested any of the allegations made by the Complainant, and did not provide any evidence whatsoever of any legitimate noncommercial, or fair use of the disputed domain name, without intent for commercial gain to misleadingly divert consumers or tarnish the Complainant’s trademark and therefore reinforces this approach. See also Kabushiki Kaisha Toshiba v. Shan Computers, WIPO Case No. D2000-0325; Bayerische Motoren Werke AG v. (This Domain is For Sale) Joshuathan Investments, Inc., WIPO Case No. D2002-0787.
Moreover, the hard copy transmittals of these proceedings (Written Notice) could not be delivered to the Respondent as the address was incomplete and thus, along with the rest of the evidence before the Panel, may be inferred that the Respondent’s intention was to conceal its true identity and therefore represents another evidence of bad faith registration and use of the disputed domain name.
For all these reasons, the Panel finds that the third element of the Policy is established on the record in these proceedings, and accordingly that the disputed domain name was registered and is being used in bad faith, pursuant to the Policy, paragraph 4(a)(iii).
For the foregoing reasons, in accordance with paragraphs 4(i) of the Policy and 15 of the Rules, the Panel orders that the disputed domain name <lufthannsa.com> be transferred to the Complainant.

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Whenever the Office of Personnel Management finds that the Government’s recruitment or retention efforts with respect to 1 or more occupations in 1 or more areas or locations are, or are likely to become, significantly handicapped due to any of the circumstances described in subsection (b), the Office may establish for the areas or locations involved, with respect to individuals in positions paid under any of the pay systems referred to in subsection (c), higher minimum rates of pay for 1 or more grades or levels, occupational groups, series, classes, or subdivisions thereof, and may make corresponding increases in all rates of the pay range for each such grade or level. However, a minimum rate so established may not exceed the maximum rate of basic pay (excluding any locality-based comparability payment under section 5304 or similar provision of law) for the grade or level by more than 30 percent, and no rate may be established under this section in excess of the rate of basic pay payable for level IV of the Executive Schedule. In the case of individuals not subject to the provisions of this title governing appointment in the competitive service, the President may designate another agency to authorize special rates under this section.
The head of an agency may determine that a category of employees of the agency will not be covered by a special rate authorization established under this section. The head of an agency shall provide written notice to the Office of Personnel Management (or other agency designated by the President to authorize special rates under the last sentence of paragraph (1)) which identifies the specific category or categories of employees that will not be covered by special rates authorized under this section. If the head of an agency removes a category of employees from coverage under a special rate authorization after that authorization takes effect, the loss of coverage will take effect on the first day of the first pay period after the date of the notice.
any other circumstances which the Office of Personnel Management (or such other agency as the President may under the last sentence of subsection (a)(1) designate) considers appropriate.
any other pay system established by or under Federal statute for civilian positions within the executive branch.
Within the limitations applicable under the preceding provisions of this section, rates of pay established under this section may be revised from time to time by the Office of Personnel Management (or by such other agency as the President may designate under the last sentence of subsection (a)(1)). The actions and revisions have the force and effect of statute.
An increase in a rate of pay established under this section is not an equivalent increase in pay within the meaning of section 5335.
When a schedule of special rates established under this section is adjusted under subsection (d), a covered employee’s special rate will be adjusted in accordance with conversion rules prescribed by the Office of Personnel Management (or by such other agency as the President may under the last sentence of subsection (a)(1) designate).
The benefit of any comparability payments under section 5304 shall be available to individuals receiving rates of pay established under this section to such extent as the Office of Personnel Management (or such other agency as the President may under the last sentence of subsection (a)(1) designate) considers appropriate, subject to paragraph (2) and subsection (h).
Payments under this subsection may not be made if, or to the extent that, when added to basic pay otherwise payable, such payments would cause the total to exceed the rate of basic pay payable for level IV of the Executive Schedule.
An employee shall not for any purpose be considered to be entitled to a rate of pay established under this section with respect to any period for which such employee is entitled to a higher rate of basic pay under any other provision of law. For purposes of this subsection, the term “basic pay” includes any applicable locality-based comparability payment under section 5304 or similar provision of law.
First, determine the rate of pay to which such employee would be entitled at the new official duty station based on such employee’s position, grade, and step (or relative position in the rate range) before the move.
Then, if (in addition to the change in pay schedule) the move also involves any personnel action or other change requiring a rate adjustment under any other provision of law, rule, or regulation, apply the applicable rate adjustment provisions, treating the rate determined under paragraph (1) as if it were the rate last received by the employee before the rate adjustment.
A rate determined under a schedule of special rates established under this section shall be considered to be part of basic pay for purposes of subchapter III of chapter 83, chapter 84, chapter 87, subchapter V of chapter 55, and section 5941, and for such other purposes as may be expressly provided for by law or as the Office of Personnel Management may by regulation prescribe.
Level IV of the Executive Schedule, referred to in subsecs. (a)(1) and (g)(2), is set out in section 5315 of this title.
The provisions of this title governing appointment in the competitive service, referred to in subsec. (a), are classified generally to section 3301 et seq. of this title.
2004—Subsec. (a). Pub. L. 108–411, § 301(a)(2)(A), added subsec. (a) and struck out former subsec. (a) relating to the President’s authority to establish higher minimum rates of basic pay for specified individuals where the Government’s recruitment or retention efforts are, or are likely to become, significantly handicapped.
Subsec. (d). Pub. L. 108–411, § 301(a)(2)(C), substituted “Office of Personnel Management” for “President” and “(or by such other agency as the President may designate under the last sentence of subsection (a)(1))” for “or by such agency as he may designate”.
Subsec. (e). Pub. L. 108–411, § 301(a)(2)(D), substituted “rate of pay” for “rate of basic pay”.
Subsec. (g)(1). Pub. L. 108–411, § 301(a)(2)(F), substituted “pay” for “basic pay” and “Office of Personnel Management (or such other agency as the President may under the last sentence of subsection (a)(1) designate)” for “President (or his designated agency)”.
Subsecs. (i), (j). Pub. L. 108–411, § 301(a)(2)(H), added subsecs. (i) and (j).
1990—Pub. L. 101–509 amended section generally, substituting provisions authorizing President to make special pay increases whenever recruitment or retention efforts are handicapped for provisions requiring annual pay reports and adjustments, authorizing alternative plan in years of emergency or when economic conditions affect the general welfare, and setting forth procedure where Congressional committee disapproves such alternative plan.
1975—Subsec. (a)(3). Pub. L. 94–82, § 202(c)(1), inserted provision relating to specification in the report to the Congress of the overall percentage of the adjustment in the rates of pay under the General Schedule and under other statutory pay systems.
Subsec. (c)(1). Pub. L. 94–82, § 202(c)(2), inserted provision relating to specification in the report to the Congress of the overall percentage of the adjustment in the rates of pay under the General Schedule and under other statutory pay systems.
Amendment by Pub. L. 108–411 effective on the first day of the first applicable pay period beginning on or after the 180th day after Oct. 30, 2004, with provision relating to conversion rules, see section 301(d) of Pub. L. 108–411, set out as a note under section 5363 of this title.
Functions of President under this section assigned to the Director of the Office of Personnel Management by section 1 of Ex. Ord. No. 13415, Dec. 1, 2006, 71 F.R. 70641, set out as a note under section 4505a of this title.
any combination of classes of positions described in paragraph (1) or (2) for which the President determines a recruiting difficulty exists.
“This title [section 529 [title IV, §§ 401–412] of Pub. L. 101–509, enacting sections 4521 to 4523 of this title, amending sections 5541, 5542, 5547, 8335, and 8425 of this title, enacting provisions set out as notes under this section and sections 4521, 5541, and 8335 of this title, and amending provisions set out as a note under section 5541 of this title] may be cited as the ‘Federal Law Enforcement Pay Reform Act of 1990’.
“For the purposes of this title, except as otherwise provided, the term ‘law enforcement officer’ means any law enforcement officer within the meaning of section 5541(3) of title 5, United States Code, with respect to whom the provisions of chapter 51 of such title apply.
“SEC. 403. SPECIAL RATES FOR LAW ENFORCEMENT OFFICERS.
Notwithstanding the procedures of section 5305 of title 5, United States Code, as amended by section 101 of this Act, or similar provision of law, higher minimum rates and corresponding increases in all step rates of each designated General Schedule grade shall be established for law enforcement officers in accordance with the provisions of this section.
The higher minimum rates and corresponding higher rates for each step rate of each designated grade shall apply to every law enforcement officer in the designated grades (except in the case of any law enforcement officer for whom a higher rate is authorized under section 5305 of title 5, United States Code, as amended by section 101 of this Act, or similar provision of law) and shall be basic pay for all purposes. The rates shall be adjusted at the time of adjustments in the General Schedule to maintain the step linkage set forth in subsection (b)(2).
Any interim entry-level adjustment under section 209 of this Act [section 529 [title II, § 209] of Pub. L. 101–509, set out as a note above] which a law enforcement officer is receiving shall be eliminated on the day before the effective date of the higher minimum rates under subsection (b)(1).
“SEC. 404. SPECIAL PAY ADJUSTMENTS FOR LAW ENFORCEMENT OFFICERS IN SELECTED CITIES.
A law enforcement officer shall be paid any applicable special pay adjustment in accordance with the provisions of this section, but such special pay adjustment shall be reduced by the amount of any applicable interim geographic adjustment under section 302 of this Act [section 529 [title III, § 302] of Pub. L. 101–509, set out as a note under section 5304 of this title], any applicable locality-based comparability payment under section 5304 of title 5, United States Code, as amended by section 101 of this Act, and, to the extent determined appropriate by the Office of Personnel Management, any applicable special rate of pay under section 5305 of such title, as so amended, or any similar provision of law (other than section 403).
In the case of any area specified in paragraph (1) that includes a portion, but not all, of a county, the Office of Personnel Management may, at the request of the head of 1 or more law enforcement agencies, extend the area specified in paragraph (1) to include, for the purposes of this section, the entire county, if the Office determines that such extension would be in the interests of good personnel administration. Any such extension shall be applicable to each law enforcement officer whose post of duty is in the area of the extension.
A special pay adjustment under this section shall be administered, to the extent practicable, in the same manner as a locality-based comparability payment under section 5304 of title 5, United States Code, as amended by section 101 of this Act, and shall be considered part of basic pay to the same degree as such a locality-based comparability payment.
The Office of Personnel Management may prescribe such regulations as it considers necessary concerning the payment of special pay adjustments to law enforcement officers under this section.
“SEC. 405. SAME BENEFITS FOR OTHER LAW ENFORCEMENT OFFICERS.
The appropriate agency head (as defined in subsection (c)) shall prescribe regulations under which the purposes of sections 403, 404, and 407 shall be carried out with respect to individuals holding positions described in subsection (b).
pretrial services officer (referred to in section 3153 of title 18, United States Code).
with respect to any individual under subsection (b)(2) or (b)(3), the Director of the Administrative Office of the United States Courts.
“SEC. 406. FBI NEW YORK FIELD DIVISION.
The total pay of an employee of the Federal Bureau of Investigation assigned to the New York Field Division before the date of September 29, 1993, in a position covered by the demonstration project conducted under section 601 of the Intelligence Authorization Act for Fiscal Year 1989 (Public Law 100–453) [102 Stat. 1911] shall not be reduced as a result of the termination of the demonstration project during the period that employee remains employed after that date in a position covered by the demonstration project.


§ 260-1 Title; period of effectiveness.
§ 260-5 Word usage and interpretation.
§ 260-7 Certification of plat.
§ 260-8 Conformity with Comprehensive Plan.
§ 260-10 Analysis of required improvements.
§ 260-11 Application for approval.
§ 260-12 Submission of preapplication plans and data.
§ 260-13 Review of and report on plans and data.
§ 260-14 Preliminary plat: preparation.
§ 260-15 Preliminary plat: application for conditional approval.
§ 260-16 Preliminary plat: approval or disapproval by Council.
§ 260-17 Preliminary plat: time frame for decision; notice of Council action.
§ 260-18 Preliminary plat: conditional approval.
§ 260-19 Preliminary plat: application fee.
§ 260-20 Final plat: submission.
§ 260-21 Final plat: conformance to preliminary plat.
§ 260-22 Final plat: final approval.
§ 260-23 Final plat: extension of conditional approval.
§ 260-24 Final plat: filing.
§ 260-30 Street names and house numbers.
§ 260-31 Flood hazard areas.
§ 260-33 Streets and alleys: grade.
§ 260-34 Streets and alleys: improvement dimensions and standards.
§ 260-35 Streets and alleys: subsurface drainage.
§ 260-36 Streets: right-of-way widths; pavement and sidewalks.
§ 260-38 Utility and street improvements.
§ 260-40 Submittal of streets and other facilities for acceptance for maintenance.
§ 260-42 Improvements provided by subdivider.
§ 260-43 Water main supply system.
§ 260-46 Preapplication plans and data.
§ 260-47 Preliminary plat: size and scale.
§ 260-48 Preliminary plat: data on existing conditions.
§ 260-49 Preliminary plat: data on proposed improvements.
§ 260-50 Final plat plans and data for final approval.
§ 260-52 Designation and acquisition of public sites and open spaces.
§ 260-54 Public service facilities.
§ 260-59 Action by governing body.
Stormwater management — See Ch. 250.
Streets, sidewalks and public property — See Ch. 255.
Water and sewers — See Ch. 302.


While guns should not be in the hands of violent offenders, current federal mandatory minimum sentences for gun possession crimes are broadly written and sometimes produce absurd and unintended results, treating nonviolent gun owners as if they had committed heinous crimes.
The Problem: Federal law requires lengthy 5-, 7-, 10-, and 30-year mandatory minimum sentences for possessing, brandishing, or discharging a gun in the course of a drug trafficking crime or a crime of violence (18 U.S.C. § 924(c)). There are also mandatory minimum sentences of 25 years for each subsequent conviction. The law requires that these mandatory prison terms be served back-to-back (i.e., consecutively, not concurrently) with each other and with any other punishment the person receives for the underlying offense. This is known as “stacking,” and it can result in absurdly lengthy sentences (see the story of Weldon Angelos below, a nonviolent, small-time pot seller serving a 55-year mandatory minimum sentence). The § 924(c) law is also often applied to nonviolent gun owners who do not actually harm or injure anyone. Additionally, the law applies even to legally purchased and registered guns and rifles found in the person’s home, even if the guns were not present or used during the actual offense. All too often, a nonviolent or addicted drug offender selling drugs in their home can find themselves serving an extra five years in prison just because they also had a gun in the home — even if the gun was never used during a drug sale.
The Armed Career Criminal Act (ACCA, 18 U.S.C. § 924(e)) is another federal gun law that requires a 15-year mandatory minimum sentence for anyone who possesses a gun or ammunition and also has three prior convictions for drug trafficking or violent felonies. The mandatory minimum applies even if the prior convictions are very old, nonviolent, minor, resulted from a drug addiction, or resulted in no prison time. Currently, there is no safety valve for any federal gun crimes.
Create a safety valve that allows judges to sentence below the mandatory minimum if doing so will not endanger the public.
Fix the “stacking” problem: create a safety valve that allows the judge to make 18 U.S.C. § 924(c) sentences run concurrently, rather than consecutively.
Fix the “stacking” problem: re-write 18 U.S.C. § 924 so that the 25-year mandatory minimum sentences for subsequent convictions only apply when the person is a “true recidivist” – a person whose prior convictions under § 924 are already final (i.e., the person served a sentence for a prior § 924 violation, and then committed another § 924 offense later on).
Re-write 18 U.S.C. § 924 to reduce the length of the 25-year mandatory minimum sentences for subsequent convictions (e.g., to 10 years or 15 years).