Medi-Fare Drug & Home Health Center, Inc.
Between December 10, 2012, and January 18, 2013, U.S. Food and Drug Administration (FDA) investigators conducted an inspection of your facility, Medi-Fare Drug and Home Health Center, Inc., located at 300 W. Pine Street in Blacksburg, South Carolina 29702. During the inspection, the investigator noted that you were not receiving valid prescriptions for individually-identified patients for a significant number of drug products you were producing. In addition, the investigator observed serious deficiencies in your practices for producing sterile drug product, which could lead to contamination of the products, potentially putting patients at risk. These observations and others were noted on an FDA Form 483 issued on January 18, 2013. We acknowledge receipt of your firm's letter to FDA dated December 12, 2012, as well as your firm's response to the FDA Form 483 dated January 29, 2013.
On February 28, 2013, we held a teleconference with you. Among other issues discussed, we expressed our concerns related to the design of your firm's aseptic fill areas, which places sterile products at considerable risk of microbial contamination. As evidenced by photographs taken by the FDA investigator during the inspection your firm's aseptic fill area is (b)(4) In addition, other activities, including labeling and weighing of non-sterile ingredients, are performed in this same room where sterile product is manipulated, creating a risk of contamination.
We are aware that the South Carolina Board of Pharmacy has recently lifted a suspension of your pharmacy license to produce sterile products. During our February 28, 2013 teleconference, we informed you that you should not resume production of sterile drugs until you implement appropriate corrective actions. You stated that you did not intend to resume production of sterile drugs until appropriate corrective actions have been implemented. We expect that you will notify this office before resuming production of sterile drugs.
Because the drug products that you manufacture and distribute without valid prescriptions for individually-identified patients are not the subject of approved applications, they are unapproved new drugs and misbranded drugs in violation of sections 505(a) and 502(f)(1) [21 U.S.C. §§ 355(a) and 352(f)(1)] of the FDCA, respectively. In addition, because you manufacture and distribute drugs without valid prescriptions for individually-identified patients, the manufacture of those drugs remains subject to FDA's Current Good Manufacturing Practice (CGMP)regulations for Finished Pharmaceuticals, Title 21, Code of Federal Regulations (CFR), Parts 210 and 211. FDA investigators observed significant CGMP violations at your facility, causing such drug product(s) to be adulterated within the meaning of section 501(a)(2)(B) of the FDCA [21 U.S.C. § 351(a)(2)(B)].
You do not have any FDA-approved applications on file for the drug products for which you have not obtained valid prescriptions for individually-identified patients.5 Under sections 301(d)and 505(a) of the FDCA [21 U.S. C. §§ 331(d) and 355(a)] a new drug may not be introduced into or delivered for introduction into interstate commerce unless an application approved by FDA under section 505 of the FDCA [21 U.S.C. § 355] is in effect for the drug. Your marketing of these products, or other applicable products, without an approved application violates these provisions of the FDCA.
Additionally, because the drug products for which you have not obtained valid prescriptions for individually-identified patients are intended for conditions that are not amenable to self-diagnosis and treatment by individuals who are not medical practitioners, adequate directions cannot be written for them so that a layman can use these products safely for their intended uses. Consequently, their labeling fails to bear adequate directions for their intended uses, causing them to be misbranded under section 502(f)(1) of the FDCA [21 U.S.C. § 352(f)(1)]. Because your products lack required approved applications, they are not exempt under 21 CFR § 201.115 from the requirements of section 502(f)(1) of the FDCA. The introduction or delivery for introduction into interstate commerce of these products therefore violates sections 301(a) of the FDCA [21 U.S.C. § 331(a)].
1. Your firm failed to establish an adequate air supply filtered through high-efficiency particulate air filters under positive pressure in the aseptic processing areas (21 CFR 211.42(c)(10)(iii)).
2. Your firm failed to establish or follow appropriate written procedures designed to prevent microbiological contamination of drug products purporting to be sterile and that include validation of all aseptic and sterilization processes (21 CFR 211.113(b)).
3. Your firm failed to ensure that manufacturing personnel wear clothing appropriate to protect drug product from contamination (21 CFR 211.28(a)).
4. Your firm failed to establish an adequate system for monitoring environmental conditions in aseptic processing areas (21 CFR 211.42(c)(10)(iv)).
5. Your firm failed to establish and follow an adequate written testing program designed to assess the stability characteristics of drug products and to use results of such stability testing to determine appropriate storage conditions and expiration dates (21 CFR 211.166(a)).
6. Your firm does not have, for each batch of drug product purporting to be sterile and/or pyrogen-free, appropriate laboratory determination of satisfactory conformance to final specifications for the drug product (21 CFR 211.167(a)).
The violations cited in this letter are not intended to be an all-inclusive statement of violations that exist at your facility. You are responsible for investigating and determining the causes of the violations identified above and for preventing their recurrence or the occurrence of other violations. It is your responsibility to assure that your firm complies with all requirements of federal law and FDA regulations.
In your response to the FDA-483 dated January 29, 2013, your firm indicates plans to address our inspectional findings with certain corrective actions. In your letter, you referenced your purported compliance with United States Pharmacopeia (USP)-National Formulary (NF) General Chapter <797> Pharmaceutical Compounding-- Sterile Preparations. However, as noted above, your firm manufactures and distributes a significant number of drugs without valid prescriptions for individually-identified patients, and the manufacture of such drugs is subject to FDA's drug CGMP regulations, 21 CFR Parts 210 and 211. Your firm's planned corrections should meet the minimum requirements of 21 CFR Part 211 to provide assurance that the drug product(s) produced by your firm conform to the basic quality standards that ensure safety, identity, strength, quality, and purity. As part of your comprehensive assessment of your operations, you should address the design of the aseptic fill area. FDA strongly recommends that your management immediately undertake a comprehensive assessment of your manufacturing operations, including facility design, procedures, personnel, processes, materials, and systems. In particular, this review should assess your aseptic processing operations. A third party consultant with relevant sterile drug manufacturing expertise could be useful in conducting this comprehensive evaluation.
1 The CPG sets forth a non-exhaustive list of factors that FDA considers in determining whether to take enforcement action when the scope and nature of a pharmacy's activities raise concerns. The CPG is available at: http://www.fda.gov/ICECI/ComplianceManuals/CompliancePolicyGuidanceManual/ucm074398.htm.
2 Compare Western States Med. Ctr. v. Shalala, 238 F.3d 1090 (9th Cir. 2001) (holding that the solicitation and advertising prohibitions in section 503A are an impermissible regulation of commercial speech and that those provisions are unconstitutional and cannot be severed from the rest of section 503A, causing all of section 503A to be invalid); with Medical Ctr. Pharm. v. Mukasey, 536 F.3d 383 (5th Cir. 2008) (compounded drugs are ''new drugs" and "new animal drugs" within the meaning of the FDCA and therefore are subject to regulation by the FDA.
and the advertising prohibitions in section 503A previously found to be unconstitutional can be severed from section 503A, leaving the remaining parts of that section valid and effective).
individually-identified patient from a licensed practitioner. This traditional activity is not the subject of this guidance.").
4 For example, section 503A and the CPG also address anticipatory compounding, which includes compounding (not distribution) before receipt of a valid prescription order for an individual patient. We are not addressing anticipatory compounding here because you fail to obtain valid prescriptions for individually-identified patients at any time prior to distribution of a significant number of drugs you produce.
5 The specific products made by your firm are drugs within the meaning of section 201(g) of the Act, [21 U.S.C. § 321(g)] because they are intended for use in the diagnosis, cure, mitigation, treatment, or prevention of diseases. Further, they are "new drugs" within the meaning of section 201(p) of the FDCA [21 U.S.C. § 321(p)] because they are not generally recognized as safe and effective for their labeled uses.


Plaintiff in error, a Tennessee corporation, engaged in the manufacture of cotton seed oil in that state, finding it impracticable to carry on the business successfully when purchasing its supply of cotton seed from ginners or from brokers, acquired and operated cotton gins in Mississippi and other states where it ginned cotton for cotton growers, purchased from them the seed thus separated from the fiber, and then shipped it to its Tennessee factory. Mississippi passed a law forbidding corporations interested in the manufacture of cotton seed oil from owning or operating cotton gins, except of a prescribed capacity and in the city or town where their oil plants were located.
to a carrier, the gins were not instrumentalities of interstate commerce and the prohibition of their operation did not infringe the company's rights under the commerce clause. P. 257 U. S. 135.
(2) That the prohibition did not deny to the company the equal protection of the laws in applying to corporations and not to individuals, because the inherent difference between corporations and natural persons sustained the classification and because it might be assumed, in the absence of any contrary showing, that only corporations were engaged in operating both oil mills and cotton gins when the act was passed. P. 257 U. S. 137.
Error to a decree of the Supreme Court of Mississippi in a suit by the state imposing a penalty on the plaintiff in error, forfeiting its right to do local business, enjoining it from operating its cotton gins, and requiring it to dispose of them within a prescribed time.
permits cotton seed oil companies to operate gins of a prescribed capacity, but only in the city or town where their oil plants are located. Laws Miss.1914, c. 162, § 4752 et seq., Hemingway's Code 1917.
The plaintiff in error, a corporation organized under Tennessee laws, prior to 1914 owned and operated a cotton seed oil mill at Memphis in that state, and two cotton gins in Mississippi. Disregarding the Anti-Gin Act, it continued to operate its two gins in Mississippi until October, 1915, when, for the purpose of enforcing the law, the state, on the relation of its Attorney General, instituted a suit in equity against the company in a county court of chancery, which, after various vicissitudes, resulted in a decree that the act was constitutional, and that the plaintiff in error was guilty of violating it. A penalty was imposed upon the company, its right to do intrastate or local business in Mississippi was declared forfeited, it was perpetually enjoined from operating cotton gins in the state, and it was ordered that, within 90 days, the company should dispose of the two cotton gins which it owned and operated in Mississippi. The company was also found guilty of violating the antitrust law of the state, and a penalty therefor was imposed.
This is a proceeding in error to review the decree of the Supreme Court of Mississippi affirming that decree of the county court as to the Anti-Gin Act. The holding that the antitrust laws were violated was reversed by the Supreme Court.
unfairly low prices for seed. There is evidence in the record tending to show resort to such methods by the plaintiff in error.
It clearly appears that, in practice, it is an advantage to the purchaser of cotton seed to operate gins not only for the profit that may be made from them directly, but because the grower of cotton often prefers to sell his seed to the company ginning it, rather than carry it to another purchaser. It is also in evidence that individuals, as well as corporations owned and operated gins, and that other oil companies than the plaintiff in error obtained their supplies of seed from growers, from gin owners, and from brokers.
The plaintiff in error has heretofore relied, and here relies, for its defense upon the unconstitutionality of the Anti-Gin Act, which it asserts upon two grounds, viz., first, that, as applied to the plaintiff in error, it imposes a direct and substantial, and therefore an unconstitutional, burden upon an instrumentality of interstate commerce; and, second, mildly, that, the act being applicable to corporations, and not to individuals, owning and operating cotton gins, it denies to the plaintiff in error the equal protection of the laws, and therefore offends against the Constitution of the United States.
The basis of the first contention is the claim that it had become impracticable for the oil company to carry on its oil manufacturing business successfully when purchasing its cotton seed supply from other ginners or from brokers, that for this reason the company acquired its two cotton gins in Mississippi, and nine in other states, to obtain the advantage of purchasing seed direct from the growers of cotton, and that all of the cotton seed which it had purchased in connection with its gins was shipped in interstate commerce to its oil mill at Memphis, the gins being, in effect, "feeders" to its oil mill.
interstate commerce, and that therefore the act imposes a direct and unconstitutional burden on commerce between the states, in violation of § 8 of Article I of the Constitution of the United States.
Western Union Telegraph Co. v. Kansas, 216 U. S. 1, Pullman Co. v. Kansas, 216 U. S. 56, Ludwig v. Western Union Telegraph Co., 216 U. S. 146, and Harrison v. St. Louis & San Francisco Railroad Co., 232 U. S. 318, are relied upon to sustain this contention of the plaintiff in error. In the first two of the cases cited, an attempt was made by the State of Kansas to tax interstate carriers on the basis of all of their property, wherever situated, as measured by the capital stock of the companies. In the third case, a similar attempt was made by the State of Arkansas.
There was no question in any of these cases but that the principal business of the companies challenging the taxing law was interstate in character, and that their chief investment was in property used in and necessary to the conduct of their interstate commerce. The controversy in the cases was as to the incidence of the tax -- whether it was so imposed upon the property of the companies or the stock representing it as to constitute a direct and substantial burden upon the interstate commerce in which they were engaged.
It is clear that these decisions cannot be of aid in determining the question we are now considering, which is whether a cotton gin operated by an oil company in Mississippi is rendered an instrumentality of interstate commerce by the fact that the owner of it ships out of the state, for its use in another state, all of the cotton seed which may be purchased in connection with its ginning operations.
The fourth case relied upon, Harrison v. St. Louis & San Francisco Railroad Co., 232 U. S. 318, was an attempt on the part of a state to prevent removal of causes from state to United States courts, and is, if possible, yet more inapposite.
The separation of the seed from the fiber of the cotton, which is accomplished by the use of the cotton gin, is a short but important step in the manufacture of both the seed and the fiber into useful articles of commerce, but that manufacture is not commerce was held in Kidd v. Pearson, 128 U. S. 1, 128 U. S. 20-21; United States v. E. C. Knight Co., 156 U. S. 1, 156 U. S. 12-13; Capital City Dairy Co. v. Ohio, 183 U. S. 238, 183 U. S. 245; McCluskey v. Marysville & Northern Railway Co., 243 U. S. 36, 243 U. S. 38, and in Hammer v. Dagenhart, 247 U. S. 251, 247 U. S. 252; Arkadelphia Milling Co. v. St. Louis & South Western Railway Co., 249 U. S. 134, 249 U. S. 151-152. And the fact, of itself, that an article, when in the process of manufacture, is intended for export to another state does not render it an article of interstate commerce. Coe v. Errol, 116 U. S. 517; New York Central R. Co. v. Mohney, 252 U. S. 152, 252 U. S. 155. When the ginning is completed, the operator of the gin is free to purchase the seed or not, and, if it is purchased, to store it in Mississippi indefinitely, or to sell or use it in that state, or to ship it out of the state for use in another, and, under the cases cited, it is only in this last case, and after the seed has been committed to a carrier for interstate transport, that it passes from the regulatory power of the state into interstate commerce and under the national power.
The application of these conclusions of law to the manufacturing operations of the cotton gins, which we have seen precede, but are not a part of, interstate commerce, renders it quite impossible to consider them an instrumentality of such commerce, which is burdened by the Anti-Gin Act, and the first contention of the plaintiff in error must be denied.
There remains the second contention, that the Anti-Gin Act denies to plaintiff in error the equal protection of the laws because it applies to corporations, and not to individuals.
Where, as we have found in this case, a foreign corporation has no federal right to continue to do business in a state, and where, as here, no contract right is involved, and there is no employment by the federal government, it is the settled law that a state may impose conditions, in its discretion, upon the right of such a corporation to do business within the state, even to the extent of excluding it altogether. Horn Silver Mining Co. v. New York, 143 U. S. 305; Baltic Mining Co. v. Massachusetts, 231 U. S. 68, 231 U. S. 83, and cases cited. And, in such case, the inherent difference between corporations and natural persons is sufficient to sustain a classification making restrictions applicable to corporations only. Hammond Packing Co. v. Arkansas, 212 U. S. 322, 212 U. S. 343-344; Baltic Mining Co. v. Massachusetts, 231 U. S. 68, 231 U. S. 83. And see Ft. Smith Lumber Co. v. Arkansas, 251 U. S. 532, 251 U. S. 533; American Sugar Refining Co. v. Louisiana, 179 U. S. 89; Williams v. Fears, 179 U. S. 270, 179 U. S. 276; W. W. Cargill Co. v. Minnesota, 180 U. S. 452.
This would be sufficient to dispose of this second contention, but we may add that the law assailed was enacted by the state in the exercise of its police power, to prevent a practice conceived to be promotive of monopoly with its attendant evils. It is clearly settled that any classification adopted by a state in the exercise of this power which has a reasonable basis, and is therefore not arbitrary, will be sustained against an attack based upon the equal protection of the laws clause of the Fourteenth Amendment, and also that every state of facts sufficient to sustain such classification which can be reasonably conceived of as having existed when the law was enacted will be assumed. Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, and cases cited; Rast v. Van Deman & Lewis Co., 240 U. S. 342.
The record before us shows that, before the law assailed was enacted, cotton gins had been operated in Mississippi by individuals as well as by corporations, but there is no showing that oil mills and cotton gins were both operated by an individual or by groups of individuals, and we think it may well be assumed, under the rule stated, that, because of the larger capital required, and perhaps for other reasons, oil mills and cotton gins may have been operated in that state only by corporations, and that, for this reason, the restraint of the evil aimed at by the act of the legislature could be accomplished by controlling corporations only. Assuming this to be the fact when the law was enacted, obviously the classification objected to cannot be pronounced so without reasonable basis as to be arbitrary.
A number of minor contentions are discussed in the briefs. These have all been considered, but are found to be not of sufficient substance to deserve special discussion.


The Secretary is authorized to enter into an agreement for the establishment and operation of a student loan fund in accordance with this part with any public or nonprofit private school of nursing which is located in a State.
(5) contain such other provisions as are necessary to protect the financial interests of the United States.
(1) Any standard established by the Secretary by regulation for the collection by schools of nursing of loans made pursuant to loan agreements under this part shall provide that the failure of any such school to collect such loans shall be measured in accordance with this subsection. With respect to the student loan fund established pursuant to such agreements, this subsection may not be construed to require such schools to reimburse such loan fund for loans that became uncollectable prior to 1983.
(2) The measurement of a school's failure to collect loans made under this part shall be the ratio (stated as a percentage) that the defaulted principal amount outstanding of such school bears to the matured loans of such school.
(ii) in their grace period.
Subsec. (b). Pub. L. 111–148, §5310(b)(6), substituted "298d" for "297h" in pars. (2) and (3).
Subsec. (c). Pub. L. 111–148, §5310(b)(2), substituted "this part" for "this subpart" wherever appearing.
1988-Subsec. (c)(1). Pub. L. 100–607 inserted provisions relating to reimbursement of student loan fund for certain uncollectable loans.
1985-Subsec. (c). Pub. L. 99–92 added subsec. (c).
Subsec. (c)(3)(C). Pub. L. 99–129, §209(j)(2)(A), substituted provisions defining "grace period" as the period of nine months beginning on the date on which the borrower ceases to pursue a full-time or half-time course of study at a school of nursing for former provisions defining "grace period" as the period of one year beginning on (i) the date on which the borrower ceased to pursue a full-time or half-time course of study at a school of nursing; or (ii) the date on which ended any period described in clause (A) or (B) of section 297b(b)(2) of this title which was applicable to such borrower, whichever was later.
Subsec. (c)(3)(D)(ii). Pub. L. 99–129, §209(j)(2)(B), struck out "first" before "grace period."
1981-Subsec. (b)(4). Pub. L. 97–35 struck out provisions respecting prohibition on loans to students attending school before Oct. 1, 1980.
1979-Subsec. (b)(4). Pub. L. 96–76 substituted "1980" for "1978".
1975-Subsec. (a). Pub. L. 94–63, §941(h)(1), (2), substituted "subpart" for "part" and struck out "of Health, Education, and Welfare" after "Secretary".
Subsec. (b). Pub. L. 94–63, §§936(a), 941(h)(3), (i)(2), in cl. (2) substituted "from allotments under section 297d of this title" for "under this part", in cl. (4) substituted "October 1, 1978" for "July 1, 1975", and in cls. (2) and (3) substituted references to sections 836 and 841 of the Act for references to sections 823 and 829, which had previously been translated as sections 297b and 297h of this title, respectively, requiring no further translations in the text as a result of the renumbering of the Public Health Service Act.
1974-Subsec. (b)(4). Pub. L. 93–385 substituted "1975" for "1974".
1971-Subsec. (b)(4). Pub. L. 92–158 substituted "full-time or half-time course of study" for "full-time course of study" and "1974" for "1971".
1968-Subsec. (b)(2). Pub. L. 90–490, §222(a)(1), (c)(2), inserted ", except as provided in section 297h of this title," after "fund" where first appearing and added cl. (D) and redesignated former cl. (D) as (E), respectively.
Subsec. (b)(3). Pub. L. 90–490, §222(a)(1), inserted ", except as provided in section 297h of this title" after "fund" where first appearing and authorized the cancellation of an additional 50 per centum of a nursery student loan.
Subsec. (b)(4). Pub. L. 90–490, §222(a)(2), substituted "1971" for "1969".
Amendment by Pub. L. 99–129 effective June 30, 1984, see section 228(b)(5) of Pub. L. 99–129, set out as a note under section 254l of this title.
"(a) Except as provided in subsection (b), this Act [enacting section 297i of this title, transferring section 296c to section 298b–5 of this title, amending this section, sections 296k, 296l, 296m, 297, 297–1, 297b, 297d, 297e, 298, 298b, and 298b–5 of this title, sections 1332, 1333, 1336, and 1341 of Title 15, Commerce and Trade, and section 6103 of Title 26, Internal Revenue Code, repealing sections 296 to 296b, 296d to 296f, 296j, 297h, and 297j of this title, and enacting provisions set out as notes under sections 201 and 298b–5 of this title and section 1333 of Title 15] and the amendments and repeals made by this Act shall take effect on October 1, 1985.
"(b)(1) The provisions of section 9(c) of this Act [transferring section 296c of this title to section 298b–5 of this title, amending section 298b–5 of this title, and enacting provisions set out as notes under section 298b–5 of this title] and the amendment made by paragraph (1) of such section shall take effect on the date of enactment of this Act [Aug. 16, 1985].
"(2) The amendment made by section 8(a) of this Act [amending section 297a of this title] shall take effect June 30, 1984."
Pub. L. 94–63, title IX, §905, July 29, 1975, 89 Stat. 355 , provided that: "Except as may otherwise be specifically provided, the amendments made by this part [part B (§§905–937) of title IX of Pub. L. 94–63, enacting sections 296j to 296m of this title, amending sections 296, 296a, 296d, 296e, 297 to 297c, 297e, and 297j of this title, repealing sections 296d, 296g, 296i, 297f, and 298c–7 of this title, and enacting provisions set out as notes under sections 296, 296a, 296d, 296e, 296m, 297, 297b, and 297f of this title] shall take effect July 1, 1975. The amendments made by this part to provisions of title VIII of the Public Health Service Act [42 U.S.C. 296 et seq.] (hereinafter in this part referred to as the 'Act') are made to such provisions as amended by part A of this title [amending sections 296, 296d, 296e, 296g, 296i, 297j, and 298c–7 of this title]."
Pub. L. 94–63, title IX, §942, July 29, 1975, 89 Stat. 367 , provided that: "The amendments made by section 941 [enacting section 298b–3 of this title, amending sections 296a to 296d, 296f, 297a to 297e, 297g to 297k, 298, and 298b of this title, and repealing section 298c–8 of this title] shall take effect July 1, 1975. Except as otherwise specifically provided, the amendments made by section 941 to provisions of title VIII of the Act [42 U.S.C. 296 et seq.] are made to such provisions as in effect July 1, 1975, and as amended by part B of this title [see note set out above]."
Amendment by section 222(c)(2) of Pub. L. 90–490 applicable with respect to loans made after June 30, 1969, see section 222(i) of Pub. L. 90–490, set out as a note under section 297b of this title.


Ethics | Megawatt Electric, LLC.
Megawatt Electric LLC (“ME”) is committed to performing with excellence at all levels of its organization and to conducting its business with the highest degree of integrity and honesty in accordance with all applicable federal, state, and local laws. ME’s reputation is one of its most important assets, and through adoption of this Policy, ME is documenting in writing its standard of conduct with the intention of preserving and strengthening its reputation for ethical conduct, integrity, skill, and responsibility in its dealings with others and complying with FAR subpart 3.10, a copy of which is provided at Attachment 1.
ME expects every employee to review and understand this policy and to strictly comply with these requirements and applicable federal, state and local law. Employees are never authorized to violate these laws.
In many instances, ME’s work and actions are governed by specific contractual requirements. In addition, many of these items (and others) are specifically governed by state or local law. A list of potentially applicable federal law is attached hereto at Attachment 2 and Attachment 3 and potentially applicable Alaska state law is attached hereto at Attachment 4. ME’s employees are required to familiarize themselves with these requirements as they are applicable.
If an employee is uncertain as to his or her obligations in a specific instance, or unclear as to whether certain conduct is authorized or appropriate, the employee is expected to inquire of management as described further below.
Employees are required to report any actual or suspected violations of this Policy or applicable laws, as further described below. While these reports may be made anonymously and/or confidentially, the reports will be investigated as described below.
ensuring all ME employees with the authority to make certifications of any nature, including but not limited to certifications regarding the quality or nature of the work performed by ME, the appropriateness of pricing information provided by ME, and ME’s entitlement to payment for a specific item, do so appropriately, consistent with the requirements of any such certification.
Failure to comply with this Policy may result in disciplinary action, including termination of any individual’s employment. Serious violations may also subject the company and the violator to serious civil or criminal liability under various federal, state and local laws.
Removal and discipline, up to and including termination, of employees who violate these standards.
State liabilities. Liabilities may be slightly different state by state, but will typically be similar to the federal items listed above.
The Ethics Compliance Officer is responsible for day-to-day enforcement of ME’s Ethics Policy regarding overall conduct of the company’s Management Team, employees, agents and other representatives. The designation of the Ethics Compliance Officer and a more complete description of the Ethics Compliance Officer’s responsibilities are set forth at Attachment 6. The President is responsible for oversight of the Ethics Compliance Officer’s performance and conduct.
The Ethics Compliance Committee reviews information and reports provided by the Ethics Compliance Officer, as well as making recommendations as appropriate for changes to this Policy and any related plans. The members of the Ethics Compliance Committee are selected by the officers of the company. The initial Committee members are identified in Attachment 7.
ME is committed to ensure that its employees and management have access to resources needed to address questions regarding compliance with this code before a violation occurs. Employees are to certify their receipt of this Policy and their commitment to comply with it in the form attached at Attachment 10.
Employees with questions regarding application of this Policy should first contact their supervisor, or the Ethics Compliance Officer for guidance before action is taken that may violate ME’s Ethics Policy.
For questions or reporting call the home office at 907-277-6047 or email ethics@megawattelectric.com. Anonymous reporting can be done through the ME Ethics Hotline 1-888-909-4522 or send an anonymous e-mail message via a link found at www.megawattelectric.com/ethics.
ME maintains a training program appropriate for the work currently under contract. The initial training program acknowledgement is attached hereto at Attachment 8. Employees are expected to attend and participate in those trainings as outlined within the program.
Self-monitoring is key to ME’s Ethics Policy. All ME employees must report all known and suspected unethical or illegal conduct. Reports must be made to either the Ethics Compliance Officer or the employee’s direct supervisor or the ME Ethics Hotline (by either phone or email). Failure to report known wrongful activity is itself a violation of this Policy.
Management and employees who are concerned about directly reporting such wrongful activity to their supervisor or the Ethics Compliance Officer may call the anonymous ME Ethics Hotline 1-888-909-4522 or send an anonymous email message via a link found at www.megawattelectric.com/ethics.
Supervisors receiving reports of possible violations from subordinates shall provide prompt notice to the Ethics Compliance Officer, who shall be responsible for determining the appropriate response and coordinating any subsequent investigation in cooperation with the supervisor.
Any retaliation against any employee who in good faith reports a violation or suspected violation of this Policy is strictly forbidden. Such retaliation is itself considered violation of ME’s Ethics Policy.
The Ethics Compliance Officer, upon receipt of a report or complaint alleging a violation of this Policy, shall immediately authorize an investigation. This investigation shall be conducted by the Ethics Compliance Officer or her designee. The Ethics Compliance Officer shall keep the Ethics Compliance Committee apprised of the investigation and shall provide a written report at the conclusion of the investigation to the Ethics Compliance Committee.
ME will respect the confidentiality of any report or complaint as much as possible, consistent with ME’s legal obligations and the necessity to investigate any allegation that this Policy has been violated.
The investigation may consist of personal interviews and any other method or review as the Ethics Compliance Officer or her designee deems appropriate.
ME may take immediate steps, at its discretion, to protect against any risk of violation it discovers in the course of its investigation.
Employees who violate this Policy may be subject to discipline, up to and including termination.
ME will make timely written disclosure of any violations of this Policy as required by applicable federal, state or local law. The President will be responsible for the submission of this disclosure.
FAR Subpart 3.10; FAR 52-203-13; FAR 52.203-14.
This subpart prescribes policies and procedures for the establishment of contractor codes of business ethics and conduct, and display of agency Office of Inspector General (OIG) fraud hotline posters.
United States, as used in this subpart, means the 50 States, the District of Columbia, and outlying areas.
(a) Requirements. Although the policy in Section 3.1002 applies as guidance to all Government contractors, the contractual requirements set forth in the clauses at 52.203-13, Code of Business Ethics and Conduct, and 52.203- 14, Display of Hotline Poster(s), are mandatory if the contracts meet the conditions specified in the clause prescriptions at 3.1004.
(a) Insert the clause at FAR 52.203-13, Contractor Code of Business Ethics and Conduct, in solicitations and contracts if the value of the contract is expected to exceed $5,000,000 and the performance period is 120 days or more.
(3) In paragraph (d) of the clause, if the agency has established policies and procedures for display of the OIG fraud hotline poster at a lesser amount, the contracting officer shall replace “$5,000,000” with the lesser amount that the agency has established.
United States, as used in this clause, means the 50 States, the District of Columbia, and outlying areas.
(ii) Provide a copy of the code to each employee engaged in performance of the contract.
(2) The Contractor shall promote compliance with its code of business ethics and conduct.
(2) An internal control system.
(B) Ensure corrective measures are promptly instituted and carried out.
(D) Disciplinary action for improper conduct.
(2) Is performed entirely outside the United States.
(ii) Any DHS fraud hotline poster subsequently identified by the Contracting Officer.
(2) Additionally, if the Contractor maintains a company website as a method of providing information to employees, the Contractor shall display an electronic version of the poster(s) at the website.
(3) Any required posters may be obtained as follows.
(c) If the Contractor has implemented a business ethics and conduct awareness program, including a reporting mechanism, such as a hotline poster, then the Contractor need not display any agency fraud hotline posters as required in paragraph (b) of this clause, other than any required DHS posters.
Anti-Kickback Act 41 U.S.C §§ 51-58 Subcontractors at any tier may not pay prime contractors to obtain a government contract.
Conspiracy to Defraud 18 U.S.C. § 286; 18 U.S.C. § 371 Addresses claims and general conspiracy to defraud the government.
False Claims Act, Criminal Liabilities 18 U.S.C. § 287 Sets forth basis for criminal liability.
Theft from Federal Programs 18 U.S.C. § 666 Applies to theft from agencies receiving federal funds by “agents” of those agencies.
False Statements Act 18 U.S.C. § 1001 Prohibitions on false statements, including statements, false entries, oral, and unsworn statements.
Mail and Wire Fraud 18 U.S.C. §§ 1341-1350 Applies mail and/or telecommunications used to defraud the United States.
Major Fraud Act 18 U.S.C. § 1031 Applies to procurement fraud on a government contract or subcontracts thereunder valued at $1 million or more.
Obstruction of Federal Audit 18 U.S.C. § 1516 Audit and inspection (quality assurance) rights.
Sarbanes-Oxley Act of 2002 18 U.S.C. § 1519 Applies to anyone who knowingly alters a document with intent to influence proper administration of any matter within jurisdiction of a department or agency of the United States. Violators are subject to fines, imprisonment for up to 20 years, or both.
Anti-Kickback Act 41 U.S.C §§ 51-58 Prohibits kickback by subcontractors and suppliers.
Contract Disputes Act of 1978 41 U.S.C. § 604 False or unsupported claims submitted to contracting officer; necessity for certification.
False Claims Act 31 U.S.C. §§ 3729-3733 Applies to any request related to the payment of money by the United States, directly or indirectly.
Forfeiture of Claims Act 28 U.S.C. § 2515 Provides for forfeiture of entire claim if any part of it is tainted by fraud.
Program Fraud Act 31 U.S.C. §§ 3801-3812 Administration alternative to litigation in civil false statements and smaller false claims cases.
Truth in Negotiations 10 U.S.C. § 2306a; 41 U.S.C. § 254 Cost or pricing data on negotiated contracts or subcontracts; modifications of contracts in excess of $650,000; necessity for certification.
Taxpayer Identification FAR § 52.204-3 Ownership and tax status of bidder/offeror.
Covenant Against Contingent Fees FAR § 52.203-5 Agents engaged to solicit award.
Small Business Program Representations FAR § 52.219-1 Status of bidder/offeror under various SBA-related preference programs.
Disclosure Statement – Cost Accounting Prac-tices and Certification FAR § 52.230-1 Applicability of cost accounting standards to offeror.
Certification of Independent Price Determination FAR § 52-203-2 Price competition and actions to influence others in submitting offers in connection with a solicitation.
Certificate of Current Cost or Pricing Data FAR § 15.406-2 Applicable when contractor submits cost or pricing data for proposals or modifications (equitable adjustments).
Subcontractor Cost or Pricing Data – Modifications FAR § 52.215-13 Applicable when subcontractor submits cost or pricing data for pricing of contract modifications (equitable adjustments).
Certification Regarding Responsibility Matters FAR § 52-209-5 Debarment (actual or proposed), suspension, defaults, civil or criminal charges of fraud or criminal offense in connection with any public contract or subcontract.
Payrolls and Basic Records FAR § 52.222-8 Certification that Davis-Bacon wages are fully paid and data on pay roll records forms (e.g., social security numbers) is accurate and complete.
Exemption from Application of Service Contract Act Provisions FAR § 52.222-48 Contractor certification that services qualify as “commercial items” and priced based on catalog or market prices.
Recovered Material Certification FAR § 52.223-4 Applies if specification required use of EPA designated products.
NC State and Local Sales and Use Tax FAR § 52.229-2 Certification and payment of NC taxes.
Payments Under Fixed-Price Construction Contracts FAR § 52.232-5 Amounts requested are only for performance in accordance with specifications, terms, and conditions of contract; payments to subcontractor have been made from previous payments; timely payments to subcontractors will be made; and payment request includes no amount which prime contractor intends to withhold (retain) from subcontractor or supplier.
Disputes FAR § 52.233-1 Claims in excess of $100,000.00.
Termination for Convenience Settlement Proposals (Total Cost Basis) FAR § 53.301-SF 1436 Proposal reflects recognized commercial accounting practices and includes only those charges allocable to terminated contract and is fair and reasonable.
Termination for Convenience Schedule of Accounting Information FAR § 53.301-SF 1439 Disclosure of contractor’s accounting practices.
Contract Claims AS 36.30.620 Contractor is required to certify any claim.
Authority to Debar or Suspend AS 36.30.635 Commissioner of Administration or the Commissioner of Transportation and Public Facilities may debar or suspend a person from award of contracts.
Causes for Debarment or Suspension AS 36.30.640 Identifies numerous reasons for debarment or suspension.
Misrepresentations, Fraud, and Attempted Fraud AS 36.30.687 Prohibits the use of misrepresentation or fraud in support of any claim.
Requirement of Good Faith AS 36.30.880 All parties to act in good faith.
Reporting of Anti-Competitive Practices AS.36.30.920 Persons suspecting collusion or anti-competitive practices shall report same to Attorney General.
Civil and Criminal Penalties AS 36.30.930 Sets forth civil and criminal penalties for violations of the requirements of the Procurement Code.
(B) Such a number of contractor employees convicted of violations of criminal drug statutes occurring in the workplace as to indicate that the contractor has failed to make a good faith effort to provide a drug-free workplace (see 23.504).
(iii) Intentionally affixing a label bearing a “Made in America” inscription (or any inscription having the same meaning) to a product sold in or shipped to the United States or its outlying areas, when the product was not made in the United States or its outlying areas (see Section 202 of the Defense Production Act (Public Law 102-558)).
(v) Delinquent Federal taxes in an amount that exceeds $3,000.
(1) The taxpayer has received a statutory notice of deficiency, under I.R.C. §6212, which entitles the taxpayer to seek Tax Court review of a proposed tax deficiency. This is not a delinquent tax because it is not a final tax liability. Should the taxpayer seek Tax Court review, this will not be a final tax liability until the taxpayer has exercised all judicial appeal rights.
(4) The taxpayer has filed for bankruptcy protection. The taxpayer is not delinquent because enforced collection action is stayed under 11 U.S.C. 362 (the Bankruptcy Code).
(b) Indictment for any of the causes in paragraph (a) of this section constitutes adequate evidence for suspension.
The company’s Ethics Compliance Officer is the company’s ethics and business practices coordinator. This person is the company’s first point of contact for all questions by employees and third parties, including governmentagencies and officials, regardingME’s Ethics Policy and related practices.
The Ethics Compliance Officer shall develop procedures necessary to implement and maintain compliance with this code and shall develop and maintain procedures to ensure compliance with the terms and conditions of all contract awards, this code, and all applicable federal, state and local laws.
The Ethics Compliance Officer shall implement and maintain the ME Ethics Hotline and email system by which employees may report instances of improper conduct. Such systems shall provide for anonymous reporting. Instructions on how to make such reports shall be made readily available to all employees and should encourage reporting of all instances of improper conduct.
The Ethics Compliance Officer shall cause a hotline poster conforming to FAR 52.203-14 to be displayed at common work areas and job sites involving performance under all federal contracts. The Ethics Compliance Officer shall also ensure that ME’s website display an electronic version of the hotline poster for the benefit of its employees.
On an annual basis or as appropriate, the Ethics Compliance Officer may perform internal or external audits as necessary to maintain compliance with this code and special requirements imposed by any particular government contract.
On an annual basis, ME’s Ethics Compliance Officer may provide a written report to the Compliance Committee regarding the status of ME’s compliance with terms and conditions of each federal contract held by the company during the current fiscal period. Such reports may also specifically address the status of the company’s compliance under this code including a summary of known investigations of potential wrongdoing and disciplinary actions taken.
As appropriate, ME’s Ethics Compliance Officer may provide a written report to the Compliance Committee regarding the status of ME’s compliance with terms and conditions imposed on all other contracts held by the company, including those with various state and local governments, during the current fiscal period.
ME’s employees receive formal training on this Policy and applicable laws governing compliance on an annual basis and as required by the Training Policy. Such training shall be provided by the Ethics Compliance Officer or legal counsel or their designees. Following completion of initial training, and on an annual basis thereafter, each member of management shall sign to affirm his or her commitment to comply with this Policy.
The Ethics Compliance Officer shall make periodic training opportunities available to supervisors and employees to ensure compliance with this Policy and related internal reporting mechanisms. These opportunities may be offered in connection with other training events or meetings.
The Ethics Compliance Officer shall ensure that all current and future employees are provided a copy of this Policy, and those employees shall certify receipt using the form provided in Attachment Ten.
Identification of Ethics Compliance Committee members.
Role of Ethics Compliance Committee.
ME’s operations are in compliance with all applicable laws and regulations.
The Compliance Committee shall perform periodic reviews of ME’s business practices, procedures, policies, and internal controls for compliance with this code and special requirements of government contracting.
ME. shall hold training for its management level employees at the roll out of this Policy and annually thereafter, or as otherwise necessary to ensure that management is kept informed of changes to the Policy or applicable laws.
ME shall hold initial training on all projects in excess of $5 million to provide training to the management and employees of those respective projects and to ensure they are familiar with the applicable requirements for the job.
ME shall provide ongoing training through use of already scheduled meetings, such as new hire orientation for jobsite employees and safety meetings, to continue raising awareness and discussion within ME of the ethical obligations of ME and its employees.
ME, through its Ethics Compliance Committee, shall continue to assess the needs for training within ME and shall provide such training as it deems appropriate.


text:
Aksenov V.P., Dudorov V.V., Kolosov V.V., Filimonov G.A. Generation of laser vortex beams with zero orbital angular momentum and nonzero topological charge. // Optika Atmosfery i Okeana. 2017. V. 30. No. 11. P. 905–909 [in Russian].
Apeksimov D.V., Zemlyanov A.A., Iglakova A.N., Kabanov A.M., Kuchinskaya O.A., Matvienko G.G., Oshlakov V.K., Petrov A.V., Sokolova E.B. Localized light structures with high intensity at multiple filamentation of femtosecond pulses of a Ti:Sapphire laser along an air path. // Optika Atmosfery i Okeana. 2017. V. 30. No. 11. P. 910–914 [in Russian].
Apeksimov D.V., Zemlyanov A.A., Iglakova A.N., Kabanov A.M., Kuchinskaya O.I., Matvienko G.G., Oshlakov V.K., Petrov A.V. and Sokolova E.B. Localized High-Intensity Light Structures during Multiple Filamentation of Ti:Sapphire-Laser Femtosecond Pulses along an Air Path. // Atmospheric and Oceanic Optics, 2018, V. 31. No. 02. pp. 107–111.
Russkova T.V. Monte Carlo simulation of solar radiative transfer in the cloudy atmosphere using graphics processor and NVIDIA CUDA technology. // Optika Atmosfery i Okeana. 2017. V. 30. No. 11. P. 915–926 [in Russian].
Russkova T.V. Monte Carlo Simulation of the Solar Radiation Transfer in a Cloudy Atmosphere with the Use of Graphic Processor and NVIDIA CUDA Technology. // Atmospheric and Oceanic Optics, 2018, V. 31. No. 02. pp. 119–130.
Zimovaya A.V., Tarasenkov M.V., Belov V.V. Influence of radiation polarization on reconstruction of the Earth surface reflection coefficient from satellite data in the visible wavelength range. // Optika Atmosfery i Okeana. 2017. V. 30. No. 11. P. 927–932 [in Russian].
Zimovaya A.V., Tarasenkov M.V. and Belov V.V. Radiation Polarization Effect on the Retrieval of the Earth’s Surface Reflection Coefficient from Satellite Data in the Visible Wavelength Range. // Atmospheric and Oceanic Optics, 2018, V. 31. No. 02. pp. 131–136.
Starikov V.I., Petrova T.M., Solodov A.M., Solodov A.A., Dеichuli V.M. Effective atom-atom potentials for H2O–He and H2O–Ar systems. // Optika Atmosfery i Okeana. 2017. V. 30. No. 11. P. 933–940 [in Russian].
Starikov V.I., Petrova T.M., Solodov A.M., Solodov A.A. and Deichuli V.M. Effective Atom-Atom Potentials for H2O–He and H2O–Ar Systems. // Atmospheric and Oceanic Optics, 2018, V. 31. No. 02. pp. 137–145.
Ageev B.G., Gruzdev A.N., Ponomarev Yu.N., Sapozhnikova V.A. Variations of residual СО2 and total pressure in conifer woody roots. // Optika Atmosfery i Okeana. 2017. V. 30. No. 11. P. 941–947 [in Russian].
Ageev B.G., Gruzgev A.N., Ponomarev Yu.N. and Sapozhnikova V.A. Variations of Residual CO2 and Pressure in Conifer Woody Roots. // Atmospheric and Oceanic Optics, 2018, V. 31. No. 02. pp. 146–152.
Sakerin S.M., Kabanov D.M., Radionov V.F., Chernov D.G., Turchinovich Yu.S., Lubo-Lesnichenko K.E., Prakhov A.N. Generalization of results of measurements of atmospheric aerosol optical depth on Spitsbergen Archipelago in 2011–2016. // Optika Atmosfery i Okeana. 2017. V. 30. No. 11. P. 948–955 [in Russian].
Sakerin S.M., Kabanov D.M., Radionov V.F., Chernov D.G., Turchinovich Yu.S., Lubo-Lesnichenko K.E. and Prakhov A.N. Generalization of Results of Atmospheric Aerosol Optical Depth Measurements on Spitsbergen Archipelago in 2011–2016. // Atmospheric and Oceanic Optics, 2018, V. 31. No. 02. pp. 163–170.
Starodymova D.P., Vinogradova A.A., Shevchenko V.P., Zakharova E.V., Sivonen V.V., Sivonen V.P. Elemental composition of surface aerosol on the north-western Kandalaksha Bay coast of the White Sea. // Optika Atmosfery i Okeana. 2017. V. 30. No. 11. P. 956–961 [in Russian].
Starodymova D.P., Vinogradova A.A., Shevchenko V.P., Zakharova E.V., Sivonen V.V. and Sivonen V.P. Elemental Composition of Near-Ground Aerosol Near the Northwestern Coast of Kandalaksha Bay of the White Sea. // Atmospheric and Oceanic Optics, 2018, V. 31. No. 02. pp. 181–186.
Semutnikova E.G., Gorchakov G.I., Sitnov S.A., Kopeikin V.M., Karpov A.V., Gorchakova I.A., Ponomareva T.Ta., Isakov A.A., Gushchin R.A., Dazenko O.I., Kurbatov G.A., Kuznetsov G.A. Siberian smoke haze over European part of Russia in July 2016. Air pollution and radiative impact. // Optika Atmosfery i Okeana. 2017. V. 30. No. 11. P. 962–970 [in Russian].
Semoutnikova E.G., Gorchakov G.I., Sitnov S.A., Kopeikin V.M., Karpov A.V., Gorchakova I.A., Ponomareva T.Ya., Isakov A.A., Gushchin R.A., Datsenko O.I., Kurbatov G.A. and Kuznetsov G.A. Siberian Smoke Haze over European Territory of Russia in July 2016: Atmospheric Pollution and Radiative Effects. // Atmospheric and Oceanic Optics, 2018, V. 31. No. 02. pp. 171–180.
Belan B.D., Savkin D.E., Tolmachev G.N. Generation of ozone in the surface air layer versus air temperature. // Optika Atmosfery i Okeana. 2017. V. 30. No. 11. P. 971–979 [in Russian].
Belan B.D., Savkin D.E. and Tolmachev G.N. Air-Temperature Dependence of the Ozone Generation Rate in the Surface Air Layer. // Atmospheric and Oceanic Optics, 2018, V. 31. No. 02. pp. 187–196.
Yakshina D.F., Golubeva E.N. The study of the subsurface temperature maximum formation in the Canada basin of the Arctic Ocean. // Optika Atmosfery i Okeana. 2017. V. 30. No. 11. P. 980–985 [in Russian].
Mikhalev A.V. The [OI] 557.7 nm airglow emission during El Niño/La Niña extreme events in solar cycles 23–24. // Optika Atmosfery i Okeana. 2017. V. 30. No. 11. P. 986–989 [in Russian].
Mikhalev A.V. The [OI] 557.7-nm Airglow Emission during El Niño/La Niña Extreme Events in Solar Cycles 23–24. // Atmospheric and Oceanic Optics, 2018, V. 31. No. 02. pp. 197–200.
Botygina N.N., Emaleev O.N., Konyaev P.A., Kopylov E.A., Lukin V.P. The development of components for creation of adaptive optics system for the solar telescope. // Optika Atmosfery i Okeana. 2017. V. 30. No. 11. P. 990–997 [in Russian].
Botygina N.N., Emaleev O.N., Konyaev P.A., Kopylov E.A. and Lukin V.P. Development of Components for Adaptive Optics Systems for Solar Telescopes. // Atmospheric and Oceanic Optics, 2018, V. 31. No. 02. pp. 216–223.

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BURL CAIN, WARDEN ... State v. Messick, 524 So.2d 117, 118-19 (La. App. 4th Cir. 1988); St. Rec. .... to the state trial court until 2005, after he obtained affidavits from Frey and others to support his ..... Stephens, 543 F. App'x 451, 458 (5th Cir.
Jan 4, 2019 ... Edward Mitchell v. Lawrence ... Morris County Board of Chosen Freeholders, et al . v. Freedom From ... Patti Stevens-Rucker, Administrator of the Estate of Jason White, Deceased v. ...... Roy Parker v. Burl Cain, Warden, No.
Jun 10, 2003 ... About 10 years ago, Burl Cain, Angola's warden asked him to become involved with the ... He is for the time being a slave to the state” (Ruffin v.
Oct 3, 2011 ... consideration in light of Wal-Mart Stores, Inc. v. Dukes, ... BLACK, ANTHONY R. V. McDANIEL, WARDEN, ET AL. .... MITCHELL, LEROY P. V. DALLAS HOUSING AUTH. ..... WESTE, STEVEN V. UNITED STATES ..... WASHINGTON, EDWARD V. CAIN, WARDEN ...... BURL, MIKO T. V. DOTSON, WARDEN.

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Dwarf shrubs exhibit different requirements for a safe and efficient water supply compared to trees due their basitonic branching and low growth height. Though, only few studies dealt with the hydraulics of this growth form. Here we report key hydraulic parameters (vulnerability to drought-induced embolism, xylem hydraulic conductivity, cell osmotic potential, potential at turgor loss point) and related wood anatomical traits for Vaccinium gaultherioides, a wide-spread species in the European Alps. The results affirm the current knowledge, by indicating a relatively risky hydraulic strategy with low hydraulic safety compared to alpine trees and osmotic properties connected to the species’ soil humidity requirements.
Dwarf shrubs represent a wide-spread and ecologically important growth form in the (sub)alpine belt of the European Alps. They are adapted to extreme climatic conditions and on the same time highly sensitive to climate change. In contrast to countless reports on hydraulics of trees, information on shrubs and dwarf shrubs is scarce, especially for the alpine area (compare Choat et al. 2012). Shrubs are characterised by lower growth heights than trees and by basitonic branching, with consequences for transport distances, hydraulic resistances and related morphological and anatomical features (Tyree and Ewers 1991), leading to different requirements for a safe and efficient water supply. In dwarf shrubs the contrast should be even more pronounced.
Results for V. myrtillus and V. vitis-idaea indicated a high risk for drought induced embolism formation balanced by repair capacities (Ganthaler and Mayr 2015). This strategy is probably based on the small growth height that facilitates refilling (e.g. by root pressure; Brodersen and McElrone 2013). However, data so far is limited and conclusions on the general hydraulic strategy of this growth form difficult. Here we present new results for V. gaultherioides Bigelow, a dioecious up to 60 cm high dwarf shrub, to complement the present knowledge.
Samples were collected from a typical subalpine dwarf shrub heath on Mt. Patscherkofel, Tyrol, Austria (1883 m; 47°22’N/11°47’E). Plant sampling, water potential (Ψ) measurements, pv-curve analysis (osmotic potential Ψo, turgor loss point Ψtlp and cell wall elasticity aela), vulnerability to drought-induced embolism (Ψ at 12, 50 and 88% loss of conductivity ΨPLC), specific hydraulic conductivity ks, and wood characteristics (conduit diameter d, hydraulic diameter dh and wall thickness to span ration (t/b)2) were measured according to Ganthaler and Mayr (2015). Shortly, the bench dehydration method was used and the percent loss of hydraulic conductivity was quantified by comparing the hydraulic conductivity (micro-flow meter, Bronkhorst High Tech, Netherlands) before and after removal of embolism by high pressure flushes. Ks was measured on fully hydrated samples and pv-curves were constructed by plotting the inverse leaf Ψ versus the relative water saturation deficiency (WSD) of drying shoots. All values are given as mean ± SE.
The sigmoidal vulnerability curve of V. gaultherioides (Fig. 1a) revealed a ΨPLC12 of -1.66 ± 0.39 MPa, ΨPLC50 of ‑2.70 ± 0.13 MPa and ΨPLC88 of ‑3.74 ± 0.14 MPa. Analysis of pv-curves (cumulative data of ten curves shown in Fig. 1b) showed a mean Ψo of ‑1.27 ± 0.07 MPa and Ψtlp of ‑1.42 ± 0.07 MPa; aela was 0.038 ± 0.005. d, dh, (t/b)2 and ks are listed in Table 1.
Figure 1. (a) Vulnerability curve (percent loss of conductivity PLC vs. xylem water potential Ψ, lines indicate ΨPLC12, ΨPLC50 and ΨPLC88) and (b) pv-curve (inverse leaf water potential Ψ-1 vs. water saturation deficiency WSD, with turgescent (open symbols) and osmotic (filled symbols) section) of V. gaultherioides.
Table 1. Xylem anatomical parameters and ks of V. gaultherioides (n=10-15).
The resistance to drought-induced embolisms in V. gaultherioides was low compared to coniferous trees of the timberline ecotone, but similar to known dwarf shrubs (Table 2). Ψo and Ψtlp were close to values reported for V. myrtillus, a species with similar soil humidity demands, and significantly higher than reported for V. vitis-idaea, which can colonize drier sites (Landolt 2010). This underlines the connection of osmotic parameters with the aridity of the natural habitat (Maréchaux et al. 2015, Delzon 2015). ks was low compared to other angiosperms (Maherali et al. 2004). According to higher d and dh, ks was slightly higher than in other Vaccinium species (Ganthaler and Mayr 2015).
Table 2. ΨPLC50 (MPa) and growth form of co-occurring species (Mayr et al. 2006; Ganthaler and Mayr 2015).
The new results for V. gaultherioides strengthen the hypothesis of a generally riskier hydraulic strategy of dwarf shrubs, probably based on refilling facilitated by minor hydraulic distances in dwarf shrubs. Covered by snow during winter, these shrubs may furthermore be less exposed to winter water stress. The study also highlights a species-specific coordination between single hydraulic parameters, connected with the species’ ecological amplitude. Additional studies are needed to get a comprehensive hydraulic understanding of this growth form, with special focus on refilling capacities and mechanisms.
Acknowledgements : the project was supported by Sparkling Science, bmwfw, Austria (SPA 5/017 - Woody Woodpecker).

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Supreme Court says that medical malpractice expert was qualified to testify and case should not have been thrown out.
FAIQA AFTAB QURESHI, M.D., ET AL.
The administratrix of the estate of a deceased infant filed a wrongful death action against a physician and her practice group, alleging that that the doctor, practicing as a pediatrician or pediatric emergency physician, negligently discharged the infant and failed to admit him to inpatient hospital care when he presented at an emergency room with signs of respiratory distress and/or pertussis, from which he later died. During discovery, plaintiff identified a physician licensed in New Hampshire and board certified in pediatrics and pediatric infectious diseases as her only standard of care expert. Prior to trial, the defendants moved to exclude his testimony as an expert witness on the standard of care.
1. The question whether a witness is qualified to testify as an expert is largely within the sound discretion of the trial court. A decision to exclude a proffered expert opinion will be reversed on appeal only when it appears clearly that the witness was qualified.
2. In a medical malpractice action, the qualification of a witness as an expert on the standard of care is governed by Code § 8.01-581.20, under which a physician is presumed to know the statewide standard of care in his or her specialty or field of medicine either if the witness is licensed to practice in Virginia or is licensed out-of-state, but meets the educational and examination requirements of the statute.
3. The statutory presumption applied to the witness in the present case because, although he was not licensed to practice in Virginia, his credentials satisfied the educational and examination requirements for licensure in the Commonwealth, according to the letter from the Commonwealth of Virginia Department of Health Professions. Thus, it was presumed that the witness knew the statewide standard of care in his specialties of pediatrics and pediatric infectious diseases.
4. Even with the benefit of the presumption, to qualify as an expert witness on the standard of care, the witness must have expert knowledge on the standard of care in the defendant's specialty and an active clinical practice in either the defendant's specialty or a related field of medicine within one year of the date of the alleged act or omission forming the basis of the action.
5. With regard to the knowledge requirement, the proponent of the expert witness had the initial burden to show, among other things, that the specialty or field of medicine in which the witness is qualified and certified is the same as the defendant doctor's specialty or a related field of medicine. In other words, plaintiff was required to demonstrate that the witness' area of qualification and certification in pediatrics and pediatric infectious diseases had certain overlapping medical practices and similar standards of care with the defendant's area of qualification and certification in pediatric emergency medicine. This showing can be made by evidence that the standard of care, as it relates to the alleged negligent act or treatment, is the same for the proffered expert's specialty as it is for the defendant doctor's specialty.
6. An expert's lack of knowledge regarding certain procedures of emergency medicine might disqualify him from rendering expert testimony as to those procedures, but does not preclude him from giving expert testimony on procedures which are common to both emergency medicine and the field of the witness and are performed according to the same standard of care.
7. Here the proffered witness satisfied the knowledge requirement of Code § 8.01-581.20. It is undisputed that the only medical procedure at issue is the decision not to admit the infant to inpatient hospital care when he presented to the emergency room showing signs of respiratory distress and/or pertussis. The witness testified in his deposition that all pediatricians who care for acutely ill children, regardless of whether they are emergency department physicians or pediatric infectious disease physicians or general pediatricians should appreciate how pertussis can present in an infant. That uncontradicted testimony demonstrated [Page 116] that the standard of care, as it pertains to the medical procedure at issue, is the same for a physician with specialties in pediatrics and pediatric infectious diseases as it is for a physician with a specialty in pediatric emergency medicine. Thus, the witness met the “knowledge” requirement of Code § 8.01-581.20.
8. To qualify as an expert, the witness needed an active clinical practice in either the defendant's specialty or a related field of medicine within one year of the date of the alleged act or omission forming the basis of the action.
9. The purpose of the requirement in § 8.01-581.20 that an expert have an active practice in the defendant's specialty or a related field of medicine is to prevent testimony by an individual who has not recently engaged in the actual performance of the procedures at issue in a case.
10. In applying the related field of medicine test for the purposes of § 8.01-581.20, it is sufficient if in the expert witness' clinical practice the expert performs the procedure at issue and the standard of care for performing the procedure is the same.
11. Since the standard of care for the medical procedure at issue was the same with regard to the witness' specialties and the defendant's specialty, the only remaining question is whether the witness actually performed the procedure at issue in his clinical practice within one year of the date of the alleged negligent act or omission.
12. With regard to the only relevant medical procedure at issue in this case, i.e., whether the infant should have been admitted to inpatient hospital care when he presented at the emergency room showing signs of respiratory distress and/or pertussis. the record is clear that the proposed witness directly treated patients who presented with respiratory distress or pertussis within one year of the date of the alleged omission in this case, in an urgent care clinic very similar to an emergency room. Thus, he met the “active clinical practice” requirement with regard to the relevant medical procedure at issue in this case.
13. The argument that only 25 to 30 percent of the witness' time was spent in direct patient care is unpersuasive. The provisions of Code § 8.01-581.20 do not set a minimum threshold amount of time a physician must spend in clinical practice to establish that such physician maintains an “active clinical practice,” and one may not be imposed on appeal. The statute states simply that the proffered expert must have an “active clinical practice” in the defendant's specialty or a related field of medicine “within one year” of the alleged negligent act or omission.
14. The record clearly demonstrates that, within the relevant one-year time frame, the proffered witness was engaged in an ongoing clinical practice and treated patients presenting with pertussis on more than a sporadic basis. Certainly, there may be instances when the expert's clinical practice with regard to the medical procedure at issue is so de minimis that the witness would not meet the “active clinical practice” requirement. However, in the case at bar, the witness' direct involvement in the treatment and care of patients presenting with respiratory distress or pertussis was not de minimis. In this case, the purpose of the active clinical practice requirement, i.e., to prevent testimony by a physician [Page 117] who has not recently engaged in the actual performance of the medical procedure at issue, was clearly satisfied. Thus, the proffered witness met the “active clinical practice” requirement of Code § 8.01-581.20.
15. Because it appears clearly from the record that the witness met the “knowledge” requirement and the “active clinical practice” requirement of Code § 8.01-581.20, the circuit court abused its discretion in holding otherwise.
Appeal from a judgment of the Circuit Court of the City of Norfolk. Hon. Karen J. Burrell, judge presiding.
Philip J. Geib for appellant.
Glen A. Huff (John R. Braley IV; Terry L. Jenkins; Huff Poole & Mahoney, on brief), for appellees.
In this wrongful death action, the sole issue is whether a plaintiff's proffered medical expert witness satisfied the criteria of Code § 8.01-581.20 to testify on the standard of care in the defendant's specialty. Because we find that the record clearly demonstrates the witness met the statutory “knowledge” requirement and “active clinical practice” requirement, see Wright v. Kaye, 267 Va. 510, 518, 593 S.E.2d 307, 311 (2004), and was therefore qualified to testify as an expert with regard to the medical procedure at issue, we will reverse the circuit court's judgment excluding the medical expert witness' testimony.
The only issue before us concerns the question whether an expert witness was qualified to testify. Therefore, “we need recite only those facts necessary to our resolution of the appeal.” Dagner v. Anderson, 274 Va. 678, 681, 651 S.E.2d 640, 641 (2007). Accord Budd v. Punyanitya, 273 Va. 583, 587, 643 S.E.2d 180, 181 (2007); Molchon v. Tyler, 262 Va. 175, 180, 546 S.E.2d 691, 695 (2001).
Turning now to the testimony considered by the circuit court, Dr. Modlin, during his voir dire direct examination, first testified about his qualifications. Dr. Modlin has been a professor of pediatric medicine at Dartmouth Medical School for the past 15 years. He has served as chairman of the pediatric department for approximately seven years and also has worked as a physician with the infectious disease group at the Dartmouth Hitchcock Medical Center. Dr. Modlin explained that, as chairman of the department of pediatrics and as a medical director of the Children's Hospital at Dartmouth Hitchcock [Page 119] Medical Center, he has responsibility for both clinical and academic missions.
They may be admitted directly from the outside, where they do not pass through the emergency room. There will be other patients who will first come to the emergency room, and because they are sick require admission and will be directly admitted to the ward.
We at Dartmouth have what we call an urgent care clinic, where many of the pediatric patients when they first arrive at the emergency room are so called triaged by the nurses. They are evaluated, and if they don't have a medical condition that puts them at very high risk where their life is clearly being threatened right then and there, most of the patients who are sick are actually sent up to our urgent care clinic.
So, quite a bit of the care that I provide in the acute care setting actually is done in the urgent care clinic. Again, it's mostly in the setting of supervising pediatric residents and medical students who are maybe providing direct care, but . . . I would have ultimate responsibility for the outcome for those patients.
After considering the evidence and oral arguments, the circuit court granted the defendants' motion. The circuit court, in light of [Page 121] the stipulation reached between the parties, then ordered the case dismissed with prejudice. Jackson appeals from the circuit court's judgment.
 The sole issue on appeal is whether the circuit court abused its discretion by holding that Dr. Modlin was not qualified to testify as an expert on the standard of care. “The question whether a witness is qualified to testify as an expert is largely within the sound discretion of the trial court.” Lloyd v. Kime, 275 Va. 98, 108, 654 S.E.2d 563, 569 (2008) (internal quotations omitted); accord Perdieu v. Blackstone Family Practice Ctr., 264 Va. 408, 418, 568 S.E.2d 703, 709 (2002). “‘A decision to exclude a proffered expert opinion will be reversed on appeal only when it appears clearly that the witness was qualified.’” Perdieu, 264 Va. at 418, 568 S.E.2d at 709 (quoting Noll v. Rahal, 219 Va. 795, 800, 250 S.E.2d 741, 744 (1979)); see also Sami v. Varn, 260 Va. 280, 284, 535 S.E.2d 172, 174 (2000) (“we will reverse a holding that a witness is not qualified to testify as an expert when it appears clearly from the record that the witness possesses sufficient knowledge, skill, or experience to make him competent to testify as an expert on the subject matter at issue”).
Any physician . . . who is licensed to practice in Virginia shall be presumed to know the statewide standard of care in the specialty or field of medicine in which he is qualified and certified. This presumption shall also apply to any physician who is licensed in some other state of the United States and meets the educational and examination requirements for licensure in Virginia. . . . An expert witness who is familiar with the statewide standard of care shall not have his testimony excluded on the ground that he does not practice in this Commonwealth. A witness shall be qualified to testify as an expert on the standard of care if he demonstrates expert knowledge of the standards of the defendant's specialty and of what conduct conforms or fails to conform to those standards and if he has had active clinical practice in either the defendant's specialty or a related [Page 122] field of medicine within one year of the date of the alleged act or omission forming the basis of the action.
 Under this statute, a physician is presumed to know the statewide standard of care in the physician's specialty or field of medicine either if the physician is licensed to practice in Virginia or “[i]f the physician is licensed out-of-state, but meets the educational and examination requirements of the statute.” Lloyd, 275 Va. at 109, 654 S.E.2d at 569. The statutory presumption applied to Dr. Modlin. Although he was not licensed to practice in Virginia, Dr. Modlin's credentials satisfied the educational and examination requirements for licensure in the Commonwealth, according to the letter from the Commonwealth of Virginia Department of Health Professions. Thus, it was presumed that Dr. Modlin knew the statewide standard of care in his specialties of pediatrics and pediatric infectious diseases.
 Even with the benefit of the presumption, “to qualify as an expert witness on the standard of care, the witness must have expert knowledge on the standard of care in the defendant's specialty and an ‘active clinical practice in either the defendant's specialty or a related field of medicine within one year of the date of the alleged act or omission forming the basis of the action.’” Id. (quoting Code § 8.01-581.20). We have previously referred to these two requirements as the “knowledge” requirement and the “active clinical practice” requirement. Wright, 267 Va. at 518, 593 S.E.2d at 311.
 With regard to the “knowledge” requirement, Jackson, as the proponent of the expert witness, had the initial burden to “show, among other things, that the ‘specialty or field of medicine in which [Dr. Modlin] is qualified and certified’ is the same as [Dr. Qureshi's] specialty or a related field of medicine.” Lloyd, 275 Va. at 109, 654 S.E.2d at 569-70 (quoting Code § 8.01-581.20). In other words, Jackson had to demonstrate that Dr. Modlin's “area of qualification and certification” in pediatrics and pediatric infectious diseases “had certain overlapping medical practices and similar standards of care with” Dr. Qureshi's “area of qualification and certification” in pediatric emergency medicine. Id. at 110, 654 S.E.2d at 570. This requirement can be shown by evidence that the standard of care, as it relates to the alleged negligent act or treatment, is the same for the proffered expert's specialty as it is for the defendant doctor's specialty. Sami, 260 Va. at 283-84, 535 S.E.2d at 174; see also Griffett v. Ryan, 247 Va. 465, 472-73, 443 S.E.2d 149, 153-54 (1994) (holding [Page 123] that an internist was qualified to testify as an expert because the evidence demonstrated that the standard of care applicable to the internist did not vary from the standard of care in the defendant's specialty, gastroenterology, a subspecialty of internal medicine).
[The expert's] lack of knowledge regarding certain procedures of emergency medicine might disqualify him from rendering expert testimony as to those procedures, but that lack of knowledge does not preclude him from giving expert testimony on procedures which are common to both emergency medicine and the field of obstetrics-gynecology and are performed according to the same standard of care.
Id. at 284, 535 S.E.2d at 174; see also Wright, 267 Va. at 522, 593 S.E.2d at 313 (whether an expert has knowledge of the standard of care for a defendant's specialty must be determined by reference to the relevant medical procedure at issue in a particular case).
That uncontradicted testimony demonstrated that the standard of care, as it pertains to the medical procedure at issue, is the same for a [Page 124] physician with specialties in pediatrics and pediatric infectious diseases as it is for a physician with a specialty in pediatric emergency medicine. Thus, we hold that Dr. Modlin met the “knowledge” requirement of Code § 8.01-581.20. Lloyd, 275 Va. at 109-10, 654 S.E.2d at 569-70; Sami, 260 Va. at 284, 535 S.E.2d at 174.
 We now move to the question whether Dr. Modlin satisfied the “active clinical practice” requirement. To qualify as an expert, Dr. Modlin needed an “‘active clinical practice in either [Dr. Qureshi's] specialty or a related field of medicine within one year of the date of the alleged act or omission forming the basis of [the] action.’” Sami, 260 Va. at 283, 535 S.E.2d at 174 (quoting Code § 8.01-581.20).
[9-10] In Sami, this Court addressed the application of the phrase “related field of medicine” contained in Code § 8.01-581.20. There, we stated that “[t]he purpose of the requirement in § 8.01-581.20 that an expert have an active practice in the defendant's specialty or a related field of medicine is to prevent testimony by an individual who has not recently engaged in the actual performance of the procedures at issue in a case.” 260 Va. at 285, 535 S.E.2d at 175. We therefore concluded that “in applying the ‘related field of medicine’ test for the purposes of § 8.01-581.20, it is sufficient if in the expert witness' clinical practice the expert performs the procedure at issue and the standard of care for performing the procedure is the same.” Id.
 It should be clear from our discussion concerning the “knowledge” requirement that the standard of care for the medical procedure at issue was the same with regard to Dr. Modlin's specialties and Dr. Qureshi's specialty. Thus, the only remaining question is whether Dr. Modlin actually performed the procedure at issue in his clinical practice within one year of the date of the alleged negligent act or omission.
 With regard to the only relevant medical procedure at issue in this case, i.e., whether infant Jackson should have been admitted to inpatient hospital care when he presented at the emergency room showing signs of respiratory distress and/or pertussis, the record is clear that Dr. Modlin directly treated patients who presented with respiratory distress or pertussis within one year of the date of the alleged omission in this case. Although Dr. Modlin admitted that he had not treated a patient presenting with pertussis in an emergency room during the relevant time frame, he testified that he had treated [Page 125] such patients in the urgent care clinic. According to Dr. Modlin's uncontradicted testimony, the urgent care clinic where he saw those patients and an emergency room are “very similar” clinical settings. Thus, we conclude that Dr. Modlin met the “active clinical practice” requirement with regard to the relevant medical procedure at issue in this case. Lloyd, 275 Va. at 109-10, 654 S.E.2d at 569-70; Sami, 260 Va. at 284, 535 S.E.2d at 174.
 The defendants, however, argue that the 25 to 30 percent of Dr. Modlin's time spent in direct patient care was insufficient to establish that he had an “active” clinical practice with regard to the relevant medical procedure at issue. We find this argument unpersuasive. The provisions of Code § 8.01-581.20 do not set a minimum threshold amount of time a physician must spend in clinical practice to establish that such physician maintains an “active clinical practice,” and this Court is not free to impose one. The statute states simply that the proffered expert must have an “active clinical practice” in the defendant's specialty or a related field of medicine “within one year” of the alleged negligent act or omission. Code § 8.01-581.20.

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Private Letter Ruling Number 9234019 May 22, 1992 IRS reply to a request dated March 23, 1992 for a ruling as to certain federal income tax consequences of sales of qualified export property between members of the same controlled group.
Private Letter Ruling Number 200015024 January 11, 2000 IRS advice whether I.R.C. section 482 applies to taxpayer and other parties to the lease-stripping transaction at issue, and if so, what are the consequences of applying section 482.
Private Letter Ruling Number 200151019 September 19, 2001 Whether, under the recognized trade or industry usage standard of the foreign sales corporation transfer pricing grouping rules set forth in section 927(d)(2)(B) and attendant regulations, Taxpayer’s two product lines as defined in Temp. Treas. Reg. §§ 1.925(a)-1T(c)(8)(ii) and 1.925(b)-1T(b)(3) fall within the same broader product line grouping.
Private Letter Ruling Number 200207012 November 13, 2001 1. Whether Parent must allocate and apportion its research and development (R&D) expenditures for 1992, 1993, and 1994 to sales on which it pays to FSCsub a commission determined under the administrative pricing rules of section 925(a)(1) or (2) of the Internal Revenue Code, or whether the bonafide cost sharing arrangement that Parent had with CFC1 eliminates the requirement to allocate and apportion Parent’s remaining R&D expenditures. Whether this determination must be made before Parent determines its foreign source taxable income under sections 861(b), 862(b), and 863(b) for purposes of section 904(a). 2. Whether during a taxable year Parent must use the same method of allocating and apportioning its R&D expenditures for all applicable operative Code sections, including both section 925(a)(1) or (2) of the Code for purposes of determining the FSC commission due FSCsub and sections 861(b), 862(b), and 863(b) for purposes of section 904(a).
Private Letter Ruling 200229019 April 11, 2002 Taxpayer requests a ruling by the Internal Revenue Service (“Service”) that it may apply the principles of Rev. Proc. 65-17, 1965-1 C.B. 833, and its progeny, in accordance with any reasonable interpretation thereof, with respect to its tax years Year 1 through Year 3, for purposes of conforming accounts to reflect Taxpayer-initiated primary adjustments.
Private Leter Ruling 200406027 October 10, 2003 Company is the owner of all Company-related intellectual property. Company charges all of its subsidiaries royalties for the use of such intellectual property, with the royalties having been set at a percentage of sales in accordance with a § 482 transfer pricing study. Consistent with this practice, Target Subgroup members have begun using the intellectual property in their businesses and will pay Company for such use, although at a reduced rate for the remainder of Year A.
Field Service Advice 200103024 October 17, 2000 Under Treas. Reg. § 1.482-7, the value of compensatory stock options is an item of compensation cost for tax purposes that must be included in the pool of costs shared with affiliates under a qualified cost sharing arrangement.
Field Service Advice 200108003 (pdf) October 24, 2000 There is a strong basis to conclude that the sham transaction theory or sham partnership theory can prevail because the formation of the partnership and allocation scheme was undertaken solely for tax purposes. We also conclude that there is a strong basis to conclude that the allocations set forth and carried out from the Operating Agreement, in the context of all the facts and circumstances, can be shown to lack substantial economic effect. There is also a strong basis to conclude that section 482 applies in the facts of this case to reallocate income to clearly reflect the taxpayer’s income. There is also a basis to argue that the foreign investors are more appropriately viewed as lenders rather than investors. Finally, we believe that penalties should be asserted regardless of the legal theory used.
Technical Advice Memorandum 200230001 March 25, 2002 This case involves USCorpA’s activities in developing Project A in Country A. Through a joint venture, USCorpA and unrelated USCorpB used their resources and skills to identify the opportunity for Project A, to design Project A, and to develop, negotiate and obtain a complete package of authorizations and contracts providing for the financing, construction and operation of Project A. USCorpA and USCorpB caused the ownership of Project A and all of the contractual rights and obligations with respect to Project A to be held by FPtnrshipA/B, a Country B limited partnership in which USCorpA and USCorpB each held, through other foreign entities, a 50% interest in profits and losses.
Technical Advice Memorandum 200231014 June 27, 2002 Whether, in computing the overall profit percentage limitation on combined taxable income determined under the marginal costing method of Temp. Treas. Reg. § 1.925(b)-1T, a foreign sales corporation (“FSC”) must include sale transactions to which the full costing method of Temp. Treas. Reg. § 1.925(a)-1T was applied.
Technical Advice Memorandum 200348004 (pdf) August 8, 2003 Whether taxpayer’s method of accounting for the Advance Payment Transactions results in a material distortion of income under I.R.C. § 925(a) and Temp. Treas. Reg. § 1.925(a)-1T(c)(6)(iii)(B). 2. Whether the reimbursement payment claimed by taxpayer is a correct application of the “no loss” rule under Temp. Treas. Reg. § 1.925(a)-1T(e)(1)(i).
Technical Advice Memorandum 200430029 (pdf) March 25, 2004 Taxpayer presented several arguments in support of its double counting of products for OPP grouping purposes despite the plain meaning of the double-inclusion prohibition in Temp. Treas. Reg. § 1.925(b)-1T(b)(3)(ii). After careful consideration, we conclude that Taxpayer’s arguments are unfounded. Double inclusion of products for purposes of OPP computations results in a distortion of a taxpayer’s worldwide profitability – a principal limitation on FSC benefits. In other words, Taxpayer’s OPP grouping methodology computes an artificially inflated worldwide profit margin. Taxpayer’s position disregards the purpose, policy, and plain language of the OPPL rules. Taxpayer also requested that we reconsider the arguments raised by a different taxpayer and rejected in TAM 200121018. We agree with the conclusions stated in TAM 200121018 and decline to review those arguments in detail in this memorandum.
Technical Advice Memorandum 200444022 July 12, 2004 The primary issues in this case are whether the ForSub payments constitute FTGR and whether Treas. Reg. § 1.861-17(c)(3)(iv) applies to the ForSub sales for purposes of determining the R&E expenses that are allocated and apportioned to the ForSub payments. Resolution of both of these issues depends, in significant part, on the correct characterization of the property that is the subject of the ForSub payments. In particular, in the context of the FTGR issue, before we can determine whether the property is export property or qualifying foreign trade property, we must analyze the cost sharing and buy-in provisions of Treas. Reg. § 1.482-7 to determine what property was transferred in exchange for the ForSub payments. Accordingly, our analysis begins with the section 482 issue, followed by the FTGR and R&E expense issues.
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United States v. Hammond (P), 4th Cir. (Keenan) from WDNC at Charlotte (Conrad).
Holt v. Food Lion Grocery Store of Chester, EDVA at Richmond (Payne).
In this slip-and-fall case, the court has diversity jurisdiction over the controversy, and removal from state court was proper. The parties are citizens of different states, and the amount in controversy exceeds $75,000.
Following removal, Holt argued that the amount in controversy is actually $74,000, submitting an affidavit that she will not seek a greater amount in damages upon remand. But the amount in controversy is governed by the plaintiff’s state-court complaint as it appears at the time of filing the notice of removal, provided that such amount is demanded in good faith. A plaintiff may not deprive the court of diversity jurisdiction simply by amending the complaint to request damages below the jurisdictional amount. The court will not countenance a result that permits a plaintiff to file a large damages claim in state court, wait to see if removal happens, and if it does, to then seek remand based on a lower amount of damages.
United States v. Hayes (P), WDVA at Roanoke (Conrad).
The petitioner seeks vacatur of his federal conviction under 28 U.S.C. § 2255. Although he previously filed a § 2255 motion that was dismissed as untimely, he contends that the current motion shouldn’t be considered successive because it’s based on newly discovered facts that were not known at the time of the earlier motion.
Courts have distinguished between petitions containing claims, the factual predicate of which came into being after the first habeas petition and those containing claims that were ripe at the conclusion of a first habeas proceeding but weren’t discovered until afterward. Here, the factual predicate underlying the petitioner’s claim — the government’s failure to disclose potentially exculpatory or impeachment evidence — accrued before he filed his first motion, even though he was unaware of this. Consistent with the weight of authority, the court believes that this is precisely the type of situation that § 2255(h)’s successive-motion rule was designed to address.
Thus, the petitioner may pursue his claim only if he obtains authorization from the 4th Circuit. The fact that he is nearing the end of his federal sentence does not allow the court to short-circuit statutory gatekeeping requirements.