A recent decision from the Tennessee Court of Appeals, authored by Judge Goldin, reminds employment litigators of a key distinction in state law: there is no right to a jury trial on Tennessee Human Rights Act (THRA) claims in circuit court. If you want a jury, though, fret not. Just be sure your case is in chancery court. In this column, we’ll review some state constitutional law principles and take a road trip through Red Bank, Lafollette, and finally, out west to Jackson.
Tennessee is one of only a handful of states to distinguish between courts of equity (chancery courts) and courts of law (in our state, circuit courts). Delaware, Mississippi, New Jersey and South Carolina are the others. For many types of cases it matters not whether they are filed in chancery or in circuit. The rights and remedies are the same. However, while THRA claims can be filed in either court, only chancery will guarantee a right to a jury.
This procedural technicality can be traced back to pre-1796, before Tennessee’s statehood. But, some fairly recent guidance (by comparison) from our state’s appellate courts should serve as a reminder to those of us who regularly litigate THRA claims in state courts.
Let’s start with a general premise: the Tennessee Constitution provides “[t]hat the right of trial by jury shall remain inviolate. …” Inviolate — free or safe from injury or violation. Sounds clear, doesn’t it? Not so fast. For every rule, we know there is at least one exception. Article I, Section 6 does not guarantee the right to a jury trial in every case. Here, the exception requires a brief account of pre-Tennessee history. The Tennessee Constitution only guarantees the right to “trial by jury as it existed at common law ... ‘under the laws and constitution of North Carolina at the time of the adoption of the Tennessee Constitution of 1796.’” The constitutional right to trial by jury does not apply to statutory rights and remedies created after the adoption of the 1796 Constitution. For such statutory rights and remedies, the legislature is free either to dispense with the right of trial by jury, or provide for it.
The General Assembly was silent on THRA claims — the act neither explicitly provides for nor prohibits jury trials. So how is one entitled to a jury in chancery court but not circuit court? Answering this question requires some travel, and the road trip begins in Red Bank, Hamilton County, Tennessee.
In Sneed v. City of Red Bank, an age discrimination case, the Tennessee Supreme Court relied on Tenn. Code Ann § 21-1-103 in holding that jury trials were allowed on THRA claims in chancery court. That statute provides: Either party to a suit in chancery is entitled, upon application, to a jury to try and determine any material fact in dispute, save in cases involving complicated accounting, as to such accounting and those elsewhere excepted by law or by this code, and all the issues of fact in any proper cases, shall be submitted to one (1) jury.
Justice Clark, writing for a unanimous Court, held in 2014 that “this statute has long been understood as affording a broad right to trial by jury in chancery court, even when the statute creating the cause of action does not otherwise expressly provide such a right.” There, the court concluded that, although the THRA provides no explicit right to a jury trial, Tenn. Code Ann. § 21-1-103 provides the right to trial by jury for THRA claims brought in chancery court. So, the Sneed decision explains why juries can hear THRA claims in chancery court. But, what about cases in circuit court? That requires a trip 150 miles to the northeast in Lafollette, Campbell County, Tennessee.
Simply put, the Supreme Court was not willing to create a right where the legislature had declined to do so.
The third and final stop on this journey requires a trip west to Jackson, Madison County, Tennessee. Here, in Terry v. Jackson-Madison County General Hospital, the Tennessee Court of Appeals had an opportunity to directly address whether there was a right to have THRA claims heard by a jury in circuit court. Following the guidance of the Supreme Court in Sneed and Young, Judge Goldin held that because there is no statute like Tennessee Code Annotated §21-1-103 for circuit court actions and because the THRA itself does not explicitly allow for a jury, then the plaintiff was not entitled to a jury trial on her THRA claim in circuit court.
When trial by jury has been demanded as provided in Rule 38, the action shall be designated upon the docket as a jury action. The trial of all issues so demanded shall be by jury, unless (a) the parties or their attorneys of record, by written stipulation filed with the court or by oral stipulation made in open court and entered in the record, consent to trial by the court sitting without a jury or (b) the court upon motion or of its own initiative finds that a right of trial by jury of some or all of those issues does not exist under the Constitution or statutes of the State of Tennessee.
The Court of Appeals held that “Rule 39 clearly places no time limitation on a movant.” It thus appears that a motion to strike a jury demand can be made at any time, regardless of how close it is to the trial date.
These cases make clear that there is no right to a jury on THRA claims in circuit court. Was this a widely known point of practice in Tennessee? It does not appear so. A quick review of Tennessee decisions indicates that numerous THRA claims have been submitted to circuit court juries. We even wrote about one in October 2016 (“Subjective Beliefs: Sufficient to Establish Pretext”), where we chronicled the Martin v. Perma-Chink Systems Inc. decision. There, a Knox County Circuit Court jury returned a verdict for $132,040 on an age discrimination claim under the THRA. It also occurred in Goree v. United Parcel Service Inc., where a Shelby County Circuit Court jury returned verdicts in excess of $4.6 million involving THRA claims. It does not appear that either side objected to a circuit court jury in those cases — and there may have been strategic reasons for empaneling a jury. Based on Rule 39.01, however, it appears that a circuit court judge could — and, in light of recent authority, perhaps should — on “its own initiative” strike a jury demand in circuit court.
In sum, the Terry decision should serve as a useful reminder that THRA claims are not to be tried in front of a circuit court jury. If you’re representing the plaintiff-employee, just be sure to file your case in chancery court, if you want a jury. And if you’re representing the defendant-employer, keep in mind that you can move to strike a jury demand in circuit court … at any time (although we don’t suggest waiting until the last minute).
1. See Tenn. Code Ann. § 4-21-311(a) (“Any person injured by any act in violation of this chapter shall have a civil cause of action in chancery or circuit court.”).
2. Tenn. Const. Art. I, § 6. This right is also enumerated in Tennessee Rule of Civil Procedure 38.01 (“The right of trial by jury as declared by the Constitution or existing laws of the State of Tennessee shall be preserved to the parties inviolate.”).
3. See Helms v. Tenn. Dep’t of Safety, 987 S.W.2d 545, 547 (Tenn.1999).
4. Id. (quoting Patten v. State, 221 Tenn. 337, 426 S.W.2d 503, 506 (1968)).
5. Tenn. Code Ann. § 21-1-103.
6. 459 S.W.3d 17, 31 (Tenn. 2014).
7. 479 S.W.3d 785 (Tenn. 2015).
11. No. W2017-00984-COA-R3-CV, 2018 WL 3203095 (Tenn. Ct. App. June 26, 2018).
13. No. E201501466COAR3CV, 2016 WL 3586949 (Tenn. App. June 27, 2016).
14. 490 S.W.3d 413 (Tenn. App. 2015).
EDWARD G. PHILLIPS is a lawyer with Kramer Rayson LLP in Knoxville, where his primary areas of practice are labor and employment law. He graduated with honors from East Tennessee State University and received his law degree from the University of Tennessee College of Law in 1978 with honors, and as a member of The Order of the Coif. He is a former chair of the Tennessee Bar Association’s Labor and Employment Law Section.
BRANDON L. MORROW is an associate with Kramer Rayson LLP in Knoxville where his primary areas of practice are labor and employment, and litigation. He earned a bachelor’s degree from the University of Tennessee and a law degree from UT College of Law in 2012.


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As so often happens, with an end comes new beginnings. The Supreme Court’s 2017–18 term now has come to a close, with no shortage of big cases to consume the attention of Court watchers and the media. And then Justice Anthony Kennedy, long seen as the “swing vote” on the Court, announced his retirement, condemning to relative obscurity much of the case law that came out of the Court in the last several weeks and making way for a newly constituted Supreme Court for the 2018–19 Term.
As readers know by now, Judge Brett Kavanaugh has been tapped to replace Justice Kennedy. With a lull in action this Summer, the Update will provide a special post on the nominee and the confirmation process later this summer, as the effort to get Judge Kavanaugh confirmed gets into full swing. But today, the Update provides the following recaps of recent decisions of which readers should be aware.
The case that grabbed the most headlines on cable news networks this year was Trump v. Hawaii, No. 17-965, which was previewed in past Update. An ever-present issue throughout the existence of the Trump Administration has been the so-called “travel ban,” which has been through several iterations since January 2017. The most recent of those was presented to the Supreme Court this year, with the challengers arguing that the President’s Executive Order restricting the entry of certain foreign nationals amounted unlawful discrimination under federal statutory law (which prohibits discrimination in the allocation of visas based on nationality) and the First Amendment (which prohibits, among other things, discrimination on the basis of religious denomination). The Court, with Chief Justice John Roberts authoring the majority opinion, rejected both challenges, holding that the Executive Order is lawful exercise of presidential power.
With respect to the statutory question, the Court pointed to basic principles of immigration law providing that the President has broad authority to set rules for the initial admissibility of foreign nationals. Only after the boundaries of admissibility have been set, the Court stated, does federal law prohibit discrimination in the allocation of visas.
The core of the challengers’ case was the argument that the Executive Order violated the First Amendment, which provides in part that “Congress shall make no law respecting an establishment of religion.” The challengers contended that the Executive Order violated that First Freedom by targeting Muslims for disfavored treatment, as a majority of the countries covered by the travel ban have Muslim-majority populations. Central to this issue were the many distasteful comments from the President that littered the 2016 presidential campaign. The challengers pointed to these as evidence that the Executive Order was indeed a mere pretext for what the President actually intended — a Muslim ban. The Chief Justice, ever the even-keeled jurist from this writer’s perspective, explained that the legality of the Executive Order must turn on the face of the Order itself, which reflects a “legitimate national security interest” underlying an action in an area in which our laws vest in the President broad discretion. It is notable that, while many consider the outcome of this Executive Order to be in some sense diametrically at odds with the outcomes of the various immigration policy decisions made by President Obama, the legal rationale underlying the actions of both presidents is the same — a fundamental power possessed by the President to set immigration policy.
In his final writing as an Associate Justice of the Supreme Court (this one came after his opinion in South Dakota v. Wayfair, Inc., which is discussed further below), Justice Kennedy authored a separate concurrence in this case, even though he joined the Chief Justice’s opinion in full. Only two pages, his concurrence makes two simple points. First, there are “numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention.” This is a reality of our constitutional structure. Indeed, as noted in the below summary of Gill v. Whitford, not all grievances against our various governmental officers and entities in this country are actionable in federal courts. Justice Kennedy’s observation further embodies the same principle as that which animates the Chief Justice’s majority opinion — that is, under fundamental separation of powers principles, some things are left to the Executive alone. The second point in Justice Kennedy’s concurrence is a qualification of the first: “That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects. The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct or even comment upon what those officials say or do. Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise.” Alas, I doubt that Justice Kennedy’s circumspect admonition reached its intended audience.
Another hot-button case that the Update previously previewed is Gill v. Whitford, No. 16-1611. This case involved a frontal attack on the practice of gerrymandering, which generally speaking involves a state legislature drawing district lines in a way that gives an advantage to the political party then in control. The Update noted previously that, because partisan gerrymandering is a fact of life in many states, this case had the potential, if the justices side with the challengers, to turn the process of districting upside down. Or, on the flip side, if the justices had affirmatively concluded that partisan gerrymandering is a purely “political question” that is not subject to judicial review, there would be no future for litigation challenging these practices in federal court.
Lest we forget that this is a financial-services focused series, the Update now turns to South Dakota v. Wayfair, Inc., No. 17-494, which also was previewed in a prior Update. Here, the question was whether a precedent from 1992, which said that the Constitution’s Commerce Clause prohibits a state from requiring out-of-state retailers that do not have a physical presence in the state to collect sales tax on sales to its residents, should be overruled. The Court, in an opinion by Justice Kennedy, answered in the affirmative and did in fact overrule that precedent, noting that the “physical presence rule” has “been the target of criticism over many years from many quarters.” The Court reaffirmed that, for a state to require retailers to collect sales taxes, the activity taxed must have a “substantial nexus” with the state but announced new law in explaining that a physical presence is not necessary to demonstrate such a nexus. The Court also noted that the physical presence rule has the effect of creating “market distortions”— putting local businesses and interstate businesses with physical presences at a competitive disadvantage relative to remote sellers without physical presences. Accordingly, the Court concluded that rejecting the physical presence rule was necessary to ensure that artificial competitive advantages are not created by the Supreme Court’s Commerce Clause jurisprudence.
As noted previously, the economic impact of such a change in the law cannot be identified with precision, but the way retailers do business, and especially tax planning, across the country will change markedly now that the Court has authorized states to require remote sellers to collect sales taxes on sales to their residents.
One of the most important separation of powers cases this Term was Lucia v. SEC, No. 17-130, which the Update has discussed twice, in February and again in May, after oral argument. As noted previously, this case casts a spotlight on the SEC’s appointment process for administrative law judges (ALJs). Endowed with all the powers necessary to effectively preside over administrative proceedings against alleged wrongdoers, ALJs serve as a powerful tool for the Commission. Perhaps even too powerful, as the Court found, in an opinion authored by Justice Elena Kagan.
The Appointments Clause requires that any “Officer of the United States” be appointed only by the President, a court of law, or the head of a department. Seizing upon the fact that ALJs are appointed by SEC staffers, rather than by the Commission proper, Mr. Lucia argued that the judgment entered against him by an ALJ was invalid. Justice Kagan agreed.
To qualify as an “Officer,” an official must hold a “continuing” position and “significant authority” to carry out its assigned functions. There was little question that an ALJ’s position is continuing, rather than temporary. More contentious was the question of whether ALJs also possess “significant authority.” The Court found its answer in an earlier case that held that the U.S. Tax Court’s “special trial judges” (STJs) qualify as officers. Finding that STJs are “near-carbon copies of the Commission’s ALJs,” the Court held that an ALJ is an officer to be appointed pursuant to the Appointments Clause. Because there was no Appointments Clause-approved ALJ for the underlying proceeding, the Court further held that Mr. Lucia is entitled to a new hearing before a different, properly appointed official.
As a result of the Court’s decision here, we are likely to see follow-on challenges to decisions and actions of various federal administrative agencies, which is a healthy dynamic. The administrative state is like the Wisteria in my background: It’s often a nice addition, and we enjoy what it brings. But if we are not careful, if we let it grow and grow without imposing limits on its reach, it will take over far more territory than we ever imagined. Lucia reaffirms a limit on the Wisteria. That limit is a simple one: Follow the Constitution.
Finally, American Express had its day in Court this Term in Ohio v. American Express Co., No. 16-1454. As readers may know, due to its superior rewards, American Express tends to attract cardholders who are wealthier and spend more money. Merchants place a higher value on these cardholders, and American Express uses this advantage to recruit merchants — but at a cost to the merchant! When a cardholder uses his American Express to buy something, American Express charges a fee to the merchant, which is typically higher than the fees of competitors Visa and Mastercard. One way that merchants try to avoid those fees, while still enticing American Express’s cardholders to shop at their stores, is by dissuading cardholders from using the card at the point of sale. This practice is known as “steering.” Thus, American Express uses its leverage to prevent steering: If the merchant wishes to accept American Express cards, American Express requires the merchant to agree to an “antisteering” contract, under which the merchant is prohibit from discouraging customers to use their American Express cards.
The question in this case was whether American Express’s model has a substantial anticompetitive effect in the market under federal antitrust law. Justice Clarence Thomas wrote for the Court, which sided with American Express. Justice Thomas concluded that there was no evidence that the price of credit-card transactions in the market was higher than one would expect to find in a “competitive” market — i.e., a market in which American Express did not require merchants to agree to its antisteering contract. As a result, American Express cardholders and merchants alike will continue to engage in transactions for high-dollar items just like they always have — and each merchant still will be contractually bound to refrain from steering a customer toward that Visa in the wallet.
Charles W. Prueter is a trial and appellate lawyer at Waller Lansden Dortch & Davis, LLP, in Birmingham. He can be reached by email at charles.prueter@wallerlaw.com. Comments and questions are welcome.
Brant Biddle is a summer associate at Waller Lansden Dortch & Davis, LLP, in Birmingham.

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Full Statute Name: United States Code Annotated. Title 16. Conservation. Chapter 67. Aquatic Nuisance Prevention and Control.
The Act focuses on all aquatics, including aquatic plants. The Act created the Aquatic Nuisance Species Task Force, which is an intergovernmental organization, administered by the Fish and Wildlife Service, committed to preventing and controlling aquatic nuisance species and implementing the Nonindigenous Aquatic Nuisance Prevention and Control Act. The Task Force coordinates Federal governmental efforts dealing with aquatic nuisance species with those of state and local governments, non-governmental organizations, academic institutions, and the private sector.
(15) resolving the problems associated with aquatic nuisance species will require the participation and cooperation of the Federal Government and State governments, and investment in the development of prevention technologies.
(5) to establish a program of research and technology development and assistance to States in the management and removal of zebra mussels.
(7) "Great Lakes" means Lake Ontario, Lake Erie, Lake Huron (including Lake St. Clair), Lake Michigan, Lake Superior, and the connecting channels (Saint Mary's River, Saint Clair River, Detroit River, Niagara River, and Saint Lawrence River to the Canandian [Canadian] Border), and includes all other bodies of water within the drainage basin of such lakes and connecting channels.
(17) "unintentional introduction" means an introduction of nonindigenous species that occurs as the result of activities other than the purposeful or intentional introduction of the species involved, such as the transport of nonindigenous species in ballast or in water used to transport fish, mollusks or crustaceans for aquaculture or other purposes.
(1) In general. Not later than 6 months after the date of enactment of this Act, the Secretary shall issue voluntary guidelines to prevent the introduction and spread of aquatic nuisance species into the Great Lakes through the exchange of ballast water of vessels prior to entering those waters.
(D) be based on the best scientific information available.
(1) In general. Not later than 2 years after the date of enactment of this Act, the Secretary, in consultation with the Task Force, shall issue regulations to prevent the introduction and spread of aquatic nuisance species into the Great Lakes through the ballast water of vessels.
(H) be based on the best scientific information available.
(3) Additional regulations. In addition to promulgating regulations under paragraph (1), the Secretary, in consultation with the Task Force, shall, not later than November 4, 1994, issue regulations to prevent the introduction and spread of aquatic nuisance species into the Great Lakes through ballast water carried on vessels that enter a United States port on the Hudson River north of the George Washington Bridge.
(4) Education and technical assistance programs. The Secretary may carry out education and technical assistance programs and other measures to promote compliance with the regulations issued under this subsection.
(1) In general. Not later than 1 year after the date of enactment of the National Invasive Species Act of 1996 [enacted October 26, 1996], and after providing notice and an opportunity for public comment, the Secretary shall issue voluntary guidelines to prevent the introduction and spread of nonindigenous species in waters of the United States by ballast water operations and other operations of vessels equipped with ballast water tanks.
(L) not apply to crude oil tankers engaged in the coastwise trade.
(3) Education and technical assistance programs. Not later than 1 year after the date of enactment of the National Invasive Species Act of 1996 [enacted October 26, 1996], the Secretary shall carry out education and technical assistance programs and other measures to encourage compliance with the guidelines issued under this subsection.
(d) Report to Congress. Not sooner than 24 months after the date of issuance of guidelines pursuant to subsection (c) and not later than 30 months after such date, and after consultation with interested and affected persons, the Secretary shall prepare and submit to Congress a report containing the information required pursuant to paragraphs (1) and (2) of subsection (e).
(e) Periodic review and revision.
(iii) carry out each of clauses (i) and (ii).
(3) Criteria for effectiveness. Not later than 18 months after the date of enactment of the National Invasive Species Act of 1996 [enacted October 26, 1996], the Task Force shall submit to the Secretary criteria for determining the adequacy and effectiveness of the voluntary guidelines issued under subsection (c).
the Secretary shall promptly promulgate regulations that meet the requirements of paragraph (2).
(B) may be regional in scope.
(3) International regulations. The Secretary shall revise regulations promulgated under this subsection to the extent required to make such regulations consistent with the treatment of a particular matter in any international agreement, agreed to by the United States, governing management of the transfer of nonindigenous aquatic species by vessel.
(1) Civil penalties. Any person who violates a regulation promulgated under subsection (b) or (f) shall be liable for a civil penalty in an amount not to exceed $ 25,000. Each day of a continuing violation constitutes a separate violation. A vessel operated in violation of the regulations is liable in rem for any civil penalty assessed under this subsection for that violation.
(2) Criminal penalties. Any person who knowingly violates the regulations promulgated under subsection (b) or (f) is guilty of a class C felony.
(3) Revocation of clearance. Upon request of the Secretary, the Secretary of the Treasury shall withhold or revoke the clearance of a vessel required by section 4197 of the Revised Statutes (46 U.S.C. App. 91 [46 USCS § 60105]), if the owner or operator of that vessel is in violation of the regulations issued under subsection (b) or (f).
(B) the recordkeeping and reporting requirements of the Act are complied with.
(h) Coordination with other agencies. In carrying out the programs under this section, the Secretary is encouraged to use, to the maximum extent practicable, the expertise, facilities, members, or personnel of established agencies and organizations that have routine contact with vessels, including the Animal and Plant Health Inspection Service of the Department of Agriculture, the National Cargo Bureau, port administrations, and ship pilots' associations.
(i) Consultation with Canada, Mexico, and other foreign governments. In developing the guidelines issued and regulations promulgated under this section, the Secretary is encouraged to consult with the Government of Canada, the Government of Mexico, and any other government of a foreign country that the Secretary, in consultation with the Task Force, determines to be necessary to develop and implement an effective international program for preventing the unintentional introduction and spread of nonindigenous species.
(j) International cooperation. The Secretary, in cooperation with the International Maritime Organization of the United Nations and the Commission on Environmental Cooperation established pursuant to the North American Free Trade Agreement, is encouraged to enter into negotiations with the governments of foreign countries to develop and implement an effective international program for preventing the unintentional introduction and spread of nonindigenous species.
(1) Master discretion. The master of a vessel is not required to conduct a ballast water exchange if the master decides that the exchange would threaten the safety or stability of the vessel, its crew, or its passengers because of adverse weather, vessel architectural design, equipment failure, or any other extraordinary conditions.
(A) In general. Except as provided in subparagraph (B), a vessel that does not exchange ballast water on the high seas under paragraph (1) shall not be restricted from discharging ballast water in any harbor.
(B) Great Lakes. Subparagraph (A) shall not apply in a case in which a vessel is subject to the regulations issued by the Secretary under subsection (b).
(3) Crude oil tanker ballast facility study.
(A) Within 60 days of the date of enactment of this Act, the Secretary of the department in which the Coast Guard is operating, in consultation with the Under Secretary of Commerce for Oceans and Atmosphere, affected shoreside ballast water facility operators, affected crude oil tanker operators, and interested parties, shall initiate a study of the effectiveness of existing shoreside ballast water facilities used by crude oil tankers in the coastwise trade off Alaska in preventing the introduction of nonindigenous aquatic species into the waters off Alaska, as well as the cost and feasibility of modifying such facilities to improve such effectiveness.
(B) The study required under subparagraph (A) shall be submitted to the Congress by no later than October 1, 1997.
(l) Non-discrimination. The Secretary shall ensure that vessels registered outside of the United States do not receive more favorable treatment than vessels registered in the United States when the Secretary performs studies, reviews compliance, determines effectiveness, establishes requirements, or performs any other responsibilities under this Act.
(a) Studies on introduction of aquatic nuisance species by vessels.
(2) Biological study. The Task Force, in cooperation with the Secretary, shall conduct a study to determine whether aquatic nuisance species threaten the ecological characteristics and economic uses of Lake Champlain and other waters of the United States other than the Great Lakes.
(b) Ecological and ballast water discharge surveys.
(ii) provide an estimate of the effectiveness of ballast water management and other vessel management guidelines issued and regulations promulgated under this subtitle in abating invasions of aquatic nuisance species in the waters that are the subject of the survey.
(2) Ballast water discharge surveys.
(A) In general. The Secretary, in cooperation with the Task Force, shall conduct surveys of ballast water discharge rates and practices in the waters referred to in paragraph (1)(A) on the basis of the criteria under clauses (i) and (ii) of such paragraph.
(ii) assess the effectiveness of voluntary guidelines issued, and regulations promulgated, under this subtitle in altering ballast water discharge practices to reduce the probability of accidental introductions of aquatic nuisance species.
(3) Columbia River. The Secretary, in cooperation with the Task Force and academic institutions in each of the States affected, shall conduct an ecological and ballast water discharge survey of the Columbia River system consistent with the requirements of paragraphs (1) and (2).
(1) Ballast exchange. Not later than 18 months after the date of enactment of this Act [enacted Nov. 29, 1990] and prior to the effective date of the regulations issued under section 1101(b) [16 USCS § 4711(b)], the Task Force shall submit a report to the Congress that presents the results of the study required under subsection (a)(1) and makes recommendations with respect to such regulations.
(2) Biological and shipping studies. Not later than 18 months after the date of enactment of this Act [enacted Nov. 29, 1990], the Secretary and the Task Force shall each submit to the Congress a report on the results of their respective studies under paragraphs (2) and (3) of subsection (a).
(d) Negotiations. The Secretary, working through the International Maritime Organization, is encouraged to enter into negotiations with the governments of foreign countries concerning the planning and implementation of measures aimed at the prevention and control of unintentional introductions of aquatic nuisance species in coastal waters.
(5) make available not to exceed $ 750,000 to fund research on aquatic nuisance species prevention and control in the San Francisco Bay-Delta Estuary through grants, to be competitively awarded and subject to peer review, to universities and research institutions.
(f) National ballast information clearinghouse.
(B) invasions of aquatic nuisance species resulting from ballast water.
(a) Department of Defense vessels. Subject to operational conditions, the Secretary of Defense, in consultation with the Secretary, the Task Force, and the International Maritime Organization, shall implement a ballast water management program for seagoing vessels of the Department of Defense to minimize the risk of introduction of nonindigenous species from releases of ballast water.
(b) Coast Guard vessels. Subject to operational conditions, the Secretary, in consultation with the Task Force and the International Maritime Organization, shall implement a ballast water management program for seagoing vessels of the Coast Guard to minimize the risk of introduction of nonindigenous species from releases of ballast water.
(1) In general. During the 18-month period beginning on the date that funds are made available by appropriations pursuant to section 1301(e) [16 USCS § 4741(e)], the Secretary of the Interior and the Secretary of Commerce, with the concurrence of and in cooperation with the Secretary, shall conduct a ballast water management demonstration program to demonstrate technologies and practices to prevent aquatic nonindigenous species from being introduced into and spread through ballast water in the Great Lakes and other waters of the United States.
(2) Location. The installation and construction of the technologies and practices used in the demonstration program conducted under this subsection shall be performed in the United States.
(4) Selection of technologies and practices. In selecting technologies and practices for demonstration under this subsection, the Secretary of the Interior and the Secretary of Commerce shall give priority consideration to technologies and practices identified as promising by the National Research Council Marine Board of the National Academy of Sciences in its report on ships' ballast water operations issued in July 1996.
(5) Report. Not later than 3 years after the date of enactment of the National Invasive Species Act of 1996 [enacted October 26, 1996], the Secretary of the Interior and the Secretary of Commerce shall prepare and submit a report to the Congress on the demonstration program conducted pursuant to this section. The report shall include findings and recommendations of the Secretary of the Interior and the Secretary of Commerce concerning technologies and practices.
(c) Authorities; consultation and cooperation with International Maritime Organization and Task Force.
(2) Consultation and cooperation. The Secretary of the Interior shall consult and cooperate with the International Maritime Organization and the Task Force in carrying out this section.
(a) Task Force. There is hereby established an "Aquatic Nuisance Species Task Force".
(7) the head of any other Federal agency that the chairpersons designated under subsection (d) deem appropriate.
(c) Ex officio members. The chairpersons designated under subsection (d) shall invite representatives of the Great Lakes Commission, the Lake Champlain Basin Program, the Chesapeake Bay Program, the San Francisco Bay-Delta Estuary Program, and State agencies and other governmental entities to participate as ex officio members of the Task Force.
(d) Chairpersons. The Director and the Under Secretary shall serve as co-chairpersons of the Task Force and shall be jointly responsible, and are authorized to undertake such activities as may be necessary, for carrying out this subtitle in consultation and cooperation with the other members of the Task Force.
(e) Memorandum of understanding. Within six months of the date of enactment of this Act [enacted Nov. 29, 1990], the Director and the Under Secretary shall develop a memorandum of understanding that describes the role of each in jointly carrying out this subtitle.
(f) Coordination. Each Task Force member shall coordinate any action to carry out this subtitle with any such action by other members of the Task Force, and regional, State and local entities.
(a) In general. The Task Force shall develop and implement a program for waters of the United States to prevent introduction and dispersal of aquatic nuisance species; to monitor, control and study such species; and to disseminate related information.
(6) develop a demonstration program of prevention, monitoring, control, education and research for the zebra mussel, to be implemented in the Great Lakes and any other waters infested, or likely to become infested in the near future, by the zebra mussel.
(C) evaluation of whether measures to prevent introductions of aquatic nuisance species are effective and environmentally sound.
(2) Implementation. Whenever the Task Force determines that there is a substantial risk of unintentional introduction of an aquatic nuisance species by an identified pathway and that the adverse consequences of such an introduction are likely to be substantial, the Task Force shall, acting through the appropriate Federal agency, and after an opportunity for public comment, carry out cooperative, environmentally sound efforts with regional, State and local entities to minimize the risk of such an introduction.
(3) provide for the early detection and prevention of infestations of aquatic nuisance species in unaffected drainage basins.
(1) In general. The Task Force may develop cooperative efforts, within the program established under subsection (a), to control established aquatic nuisance species to minimize the risk of harm to the environment and the public health and welfare. For purposes of this Act, control efforts include eradication of infestations, reductions of populations, development of means of adapting human activities and public facilities to accommodate infestations, and prevention of the spread of aquatic nuisance species from infested areas. Such control efforts shall be developed in consultation with affected Federal agencies, States, Indian Tribes, local governments, interjurisdictional organizations, and other appropriate entities. Control actions authorized by this section shall be based on the best available scientific information and shall be conducted in an environmentally sound manner.
(2) Decisions. The Task Force or any other affected agency or entity may recommend that the Task Force initiate a control effort. In determining whether a control program is warranted, the Task Force shall evaluate the need for control (including the projected consequences of no control and less than full control); the technical and biological feasibility and cost-effectiveness of alternative control strategies and actions; whether the benefits of control, including costs avoided, exceed the costs of the program; the risk of harm to non-target organisms and ecosystems, public health and welfare; and such other considerations the Task Force determines appropriate. The Task Force shall also determine the nature and extent of control of target aquatic nuisance species that is feasible and desirable.
(3) Programs. If the Task Force determines in accordance with paragraph (2) that control of an aquatic nuisance species is warranted, the Task Force shall develop a proposed control program to achieve the target level of control. A notice summarizing the proposed action and soliciting comments shall be published in the Federal Register, in major newspapers in the region affected, and in principal trade publications of the industries affected. Within 180 days of proposing a control program, and after consultation with affected governmental and other appropriate entities and taking into consideration other comments received, the Task Force shall complete development of the proposed control program.
(D) the assessment of the effectiveness of prevention, monitoring and control methods.
(2) Protocol. Within 90 days of the date of enactment of this Act [enacted Nov. 29, 1990], the Task Force shall establish and follow a protocol to ensure that research activities carried out under this subtitle do not result in the introduction of aquatic nuisance species to waters of the United States.
(3) Grants for research. The Task Force shall allocate funds authorized under this Act for competitive research grants to study all aspects of aquatic nuisance species, which shall be administered through the National Sea Grant College Program and the Cooperative Fishery and Wildlife Research Units. Grants shall be conditioned to ensure that any recipient of funds follows the protocol established under paragraph (2) of this subsection.
(g) Technical Assistance. The Task Force shall, within the program developed under subsection (a), provide technical assistance to State and local governments and persons to minimize the environmental, public health, and safety risks associated with aquatic nuisance species, including an early warning system for advance notice of possible infestations and appropriate responses.
(h) Education. The Task Force shall, with the program developed under subsection (a), establish and implement educational programs through Sea Grant Marine Advisory Services and any other available resources that it determines to be appropriate to inform the general public, State governments, governments of political subdivisions of States, and industrial and recreational users of aquatic resources in connection with matters concerning the identification of aquatic nuisance species, and control methods for such species, including the prevention of the further distribution of such species.
(i) Zebra mussel demonstration program.
(iv) provision of technical assistance to regional, State and local entities to carry out this section.
(B) Public facility research and development. The Assistant Secretary, in consultation with the Task Force, shall develop a program of research, technology development, and demonstration for the environmentally sound control of zebra mussels in and around public facilities. The Assistant Secretary shall collect and make available, through publications and other appropriate means, information pertaining to such control methods.
(C) Voluntary guidelines. Not later than 1 year after the date of enactment of this subparagraph [enacted Oct. 26, 1996], the Task Force shall develop and submit to the Secretary voluntary guidelines for controlling the spread of the zebra mussel and, if appropriate, other aquatic nuisance species through recreational activities, including boating and fishing. Not later than 4 months after the date of such submission, and after providing notice and an opportunity for public comment, the Secretary shall issue voluntary guidelines that are based on the guidelines developed by the Task Force under this subparagraph.
(ii) adhere to research protocols developed pursuant to subsection (f)(2).
(B) Authorization of appropriations. There are authorized to be appropriated to the Environmental Protection Agency to carry out this paragraph, $ 500,000.
(A) In general. The Assistant Secretary, in consultation with the Task Force, shall investigate and identify environmentally sound methods for preventing and reducing the dispersal of aquatic nuisance species between the Great Lakes-Saint Lawrence drainage and the Mississippi River drainage through the Chicago River Ship and Sanitary Canal, including any of those methods that could be incorporated into the operation or construction of the lock system of the Chicago River Ship and Sanitary Canal.
(ii) ways to incorporate those methods into ongoing operations of the United States Army Corps of Engineers that are conducted at the Chicago River Ship and Sanitary Canal.
(C) Authorization of appropriations. There are authorized to be appropriated to the Department of the Army such sums as are necessary to carry out the dispersal barrier demonstration project directed by this paragraph.
(4) Contributions. To the extent allowable by law, in carrying out the studies under paragraphs (2) and (3), the Administrator of the Environmental Protection Agency and the Secretary of the Army may enter into an agreement with an interested party under which that party provides in kind or monetary contributions for the study.
(5) Technical assistance. The Great Lakes Environmental Research Laboratory of the National Oceanic and Atmospheric Administration shall provide technical assistance to appropriate entities to assist in the research conducted pursuant to this subsection.
(1) Regulations. The Director, the Secretary, and the Under Secretary may issue such rules and regulations as may be necessary to implement this section.
(2) Participation of others. The Task Force shall provide opportunities for affected Federal agencies which are not part of the Task Force, State and local government agencies, and regional and other entities with the necessary expertise to participate in control programs. If these other agencies or entities have sufficient authority or jurisdiction and expertise and where this will be more efficient or effective, responsibility for implementing all or a portion of a control program may be delegated to such agencies or entities.
(1) Not later than 12 months after the date of enactment of this Act [enacted Nov. 29, 1990], the Task Force shall submit a report describing the program developed under subsection (a), including the research protocol required under subsection (f)(2), to the Congress.
(2) On an annual basis after the submission of the report under paragraph (1), the Task Force shall submit a report to the Congress detailing progress in carrying out this section.
(F) submit annually a report to the Task Force describing activities within the Great Lakes region related to aquatic nuisance species prevention, research, [and] control.
(2) Consultation. The Task Force shall request that the Great Lakes Fishery Commission provide information to the panel convened under this subsection on technical and policy matters related to the international fishery resources of the Great Lakes.
(3) Canadian participation. The panel convened under this subsection is encourage [encouraged] to invite representatives from the Federal, provincial or territorial governments of Canada to participate as observers.
(6) submit annually a report to the Task Force describing activities within the Western region related to aquatic nuisance species prevention, research, and control.
(2) cooperate with regional panels and similar entities that carry out the activities described in paragraph (1).
(a) State or interstate invasive species management plans.
(B) a public facility management plan to the Assistant Secretary for approval which is limited solely to identifying those public facilities within the State or within the interstate region involved for which technical and financial assistance is needed to reduce infestations of zebra mussels.
(D) a schedule of implementing the plan, including a schedule of annual objectives, and enabling legislation.
(A) In developing and implementing a management plan, the State or interstate organization should, to the maximum extent practicable, involve local governments and regional entities, Indian tribes, and public and private organizations that have expertise in the control of aquatic nuisance species.
(B) Upon the request of a State or the appropriate official of an interstate organization, the Task Force or the Assistant Secretary, as appropriate under paragraph (1), may provide technical assistance in developing and implementing a management plan.
(4) Plan approval. Within 90 days after the submission of a management plan, the Task Force or the Assistant Secretary in consultation with the Task Force, as appropriate under paragraph (1), shall review the proposed plan and approve it if it meets the requirements of this subsection or return the plan to the Governor or the interstate organization with recommended modifications.
(1) State grants. The Director may, at the recommendation of the Task Force, make grants to States with management plans approved under subsection (a) for the implementation of those plans.
(2) Application. An application for a grant under this subsection shall include an identification and description of the best management practices and measures which the State proposes to utilize in implementing an approved management plan with any Federal assistance to be provided under the grant.
(A) The Federal share of the cost of each comprehensive management plan implemented with Federal assistance under this section in any fiscal year shall not exceed 75 percent of the cost incurred by the State in implementing such management program and the non-Federal share of such costs shall be provided from non-Federal sources.
(B) The Federal share of the cost of each public facility management plan implemented with Federal assistance under this section in any fiscal year shall not exceed 50 percent of the cost incurred by the State in implementing such management program and the non-Federal share of such costs shall be provided from non-Federal sources.
(4) Adminisrative [Administrative] costs. For the purposes of this section, administrative costs for activities and programs carried out with a grant in any fiscal year shall not exceed 5 percent of the amount of the grant in that year.
(5) In-kind contributions. In addition to cash outlays and payments, in-kind contributions of property or personnel services by non-Federal interests for activities under this section may be used for the non-Federal share of the cost of those activities.
(c) Enforcement assistance. Upon request of a State or Indian tribe, the Director or the Under Secretary, to the extent allowable by law and in a manner consistent with section 141 of title 14, United States Code, may provide assistance to a State or Indian tribe in enforcing an approved State or interstate invasive species management plan.
All actions taken by Federal agencies in implementing the provisions of section 1202 [16 USCS § 4722] shall be consistent with all applicable Federal, State, and local environmental laws. Nothing in this title shall affect the authority of any State or political subdivision thereof to adopt or enforce control measures for aquatic nuisance species, or diminish or affect the jurisdiction of any State over species of fish and wildlife. Compliance with the control and eradication measures of any State or political subdivision thereof regarding aquatic nuisance species shall not relieve any person of the obligation to comply with the provisions of this subtitle [16 USCS §§ 4721 et seq.].
(a) Advice. The Task Force shall provide timely advice to the Secretary of State concerning aquatic nuisance species that infest waters shared with other countries.
(b) Negotiations. The Secretary of State, in consultation with the Task Force, is encouraged to initiate negotiations with the governments of foreign countries concerning the planning and implementation of prevention, monitoring, research, education, and control programs related to aquatic nuisance species infesting shared water resources.
Within one year of the date of enactment of this Act [enacted Nov. 29, 1990], the Task Force shall, in consultation with State fish and wildlife agencies, other regional, State and local entities, potentially affected industries and other interested parties, identify and evaluate approaches for reducing the risk of adverse consequences associated with intentional introduction of aquatic organisms and submit a report of their findings, conclusions and recommendations to the Congress.
The Task Force shall, within the program developed under subsection (a), undertake a comprehensive, environmentally sound program in coordination with regional, territorial, State and local entities to control the brown tree snake (Boiga irregularis) in Guam and other areas where the species is established outside of its historic range.
(B) $ 500,000 to the Secretary to carry out section 1102(f) [16 USCS § 4712(f)].
(6) $ 300,000 to the Department of the Interior, to be used by the Director to fund regional panels and similar entities under section 1203 [16 USCS § 4723], of which $ 100,000 shall be used to fund activities of the Great Lakes Commission.
(c) Grants for State management programs. There are authorized to be appropriated for each of fiscal years 1997 through 2002 $ 4,000,000 to the Department of the Interior, to be used by the Director for making grants under section 1204 [16 USCS § 4724], of which $ 1,500,000 shall be used by the Director, in consultation with the Assistant Secretary, for management of aquatic nuisance vegetation species.
(d) Intentional introductions policy review. There are authorized to be appropriated for fiscal year 1991, $ 500,000 to the Director and the Under Secretary to conduct the intentional introduction policy review under section 1207 [16 USCS § 4727].
(e) Ballast water management demonstration program. There are authorized to be appropriated $ 2,500,000 to carry out section 1104 [16 USCS § 4714].
(f) Research. There are authorized to be appropriated to the Director $ 1,000,000 to carry out research on the prevention, monitoring, and control of aquatic nuisance species in Narragansett Bay, Rhode Island. The funds shall be made available for use by the Department of Environmental Management of the State of Rhode Island.
The Secretary of State, in consultation with the Council on Environmental Quality, is encouraged to enter into negotiations with the governments of Canada and Mexico to provide for reciprocal cooperative environmental impact analysis of major Federal actions which have significant transboundary effects on the quality of the human environment in the United States, Canada, and Mexico.


On December 29, 2009, the California Natural Resources Agency ("Resources Agency") adopted amendments to the guidelines implementing the California Environmental Quality Act ("CEQA"). The amendments were filed with the Secretary of State on February 16, 2010 and will assist lead agencies in complying with CEQA’s existing requirements when analyzing and mitigating the impacts of greenhouse gas ("GHG") emissions associated with a proposed project.
The amendments implement Senate Bill 97 which required the Resources Agency to clarify how GHG emissions should be analyzed and mitigated during the CEQA process. Recent legislation and issuance of the California Air Resource Board’s ("CARB’s") Scoping Plan pursuant to Assembly Bill 32, the Global Warming Solutions Bill, created uncertainty regarding CEQA compliance. CARB approved the Scoping Plan a year ago. It presents strategies for achieving the statewide goal of reducing GHG emissions to 1990 levels by 2020. The Legislature passed SB 97 to give greater certainty to CEQA lead agencies as to whether CEQA requirements have been met. According to the Resource Agency’s Final Statement of Reasons for Regulatory Action (dated Dec. 2009), they do not add substantive requirements.
The amendments provide guidance to lead agencies regarding how to determine whether GHG emissions are significant, how to analyze significant impacts, how to develop appropriate mitigation measures to address significant impacts, and how to address significant impacts that cannot be mitigated to below a level of significance. The changes affect 14 sections of the existing CEQA Guidelines, Appendix F regarding Energy Conservation, and Appendix G which presents the Environmental Checklist Form.
Are the Impacts Significant? Should an EIR Be Prepared?
Under CEQA, an EIR is required if a lead agency determines there is substantial evidence that a proposed project "either individually or cumulatively, may cause a significant impact on the environment." 14 C.C.R. § 15063. Lead agencies have struggled to determine when GHG emissions associated with a project may cause a significant impact. Under the new section 15064.4(b), the following are to be considered in determining the significance of impacts from GHG emissions: (1) the extent of change in GHGs compared to the existing environmental setting, (2) whether emissions exceed an applicable threshold of significance, and (3) the extent of compliance with regulations or requirements to implement a plan for reduction or mitigation of GHGs. Id. at §§ 15064.4(b)(1)-(3); see also § 15183.5(b).
The amendments focus on the project’s potential incremental contribution of GHGs. They include the addition of section 15064.4(a) which states that the description, calculation or estimation of GHGs should be made "based to the extent possible on scientific and factual data." This subsection grants the lead agency the discretion either to use a model or methodology to quantify such emissions or to rely on qualitative analysis or performance-based standards. Id. at § 15064.4(a)(1)-(2). The amendments do not specify how GHG emissions are calculated. The lead agency must determine how it will calculate emissions.
The environmental setting is defined as the "physical environmental conditions in the vicinity of the project." Id. at 15125. An EIR is required to discuss inconsistencies between the proposed project and existing general and regional plans. Id. at 15125(d). Inconsistencies indicate that potentially significant impacts exist: they do not require a mandatory finding of significance. The amendments add specific plans to the list of plans to be considered for consistency. Id. In addition, regional blueprint plans and plans for reducing greenhouse gas emissions were added to the list of examples of regional plans that should be considered. Id. The lead agency must determine the significance of any inconsistencies with such plans.
[T]he incremental effects of an individual project . . . [must be] viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects. Id. § 15064(h)(1).
Compliance with these types of plans establishes a rebuttable presumption that the effects are not cumulatively considerable. The lead agency must still document how plan implementation ensures project effects are not cumulatively considerable.
Amendments to section 15064(h)(3) focus on the types of plans and programs that may be considered during CEQA review of cumulative impacts. They do so in the context of cumulative effects. Id. The revisions added habitat conservation plans, natural community conservation plans, and plans or programs for regulation of GHG emissions. Id. Whatever the plan, it must provide requirements that "avoid or substantially lessen the cumulative problem" of GHG emissions. Id. Also, the plan must be "specified in law" or already be adopted by a public agency that has jurisdiction to implement the law. Id. If a project complies with such a plan, then the lead agency may determine the project’s incremental contribution to a cumulative effect is not cumulatively considerable. Id.
Section 15064.7(c) was added to allow lead agencies to consider "thresholds of significance previously adopted or recommended by other public agencies or recommended by experts." The Resources Agency identifies local and regional air districts as likely sources for thresholds. Another potential resource for thresholds is the California Air Pollution Control Officers Association ("CAPCOA"). CAPCOA has issued a White Paper on the development of thresholds for GHG emissions. The purpose of this amendment is to assist lead agencies lacking expertise to develop thresholds for GHG emissions. A lead agency’s decision to employ a particular threshold must be supported by substantial evidence.
The amendments add GHG emissions reduction requirements contained in adopted land use plans, policies or regulations as an example of "uniformly applied development policies or standards." Id. at § 15183(g)(8). The effects of a project are not peculiar to a project if such adopted policies or standards will substantially mitigate the effects. Id. at § 15183(f). The agency must make this finding based on substantial evidence and can decide not to prepare an EIR on this basis. Id.
Existing CEQA law remains unchanged. If there is a fair argument, based on substantial evidence, that a project will result in significant effects, then the lead agency must prepare an EIR. This is true for the impact of GHG emissions related to a project as well. These amendments clarify how other plans and programs might affect determinations of significance and whether an EIR is prepared.
What Should the EIR Contain?
When determining what to analyze in an EIR, lead agencies often focus on the environmental factors listed in Appendix G to the CEQA Guidelines. Appendix G contains a sample checklist of potential impacts that should be analyzed. The CEQA amendments add or modify sample questions regarding forest resources, GHG emissions, and transportation. However, a lead agency should not limit its review to the items listed in the checklist. In accordance with existing case law, a lead agency must consider all substantial evidence regarding potentially significant impacts.
Other amendments provide guidance regarding the impacts to be analyzed in the EIR. Amendment of section 15126.2(a) requires that an EIR analyze the significant effects of bringing development and people to the affected area. The EIR should evaluate impacts associated with locating development in areas susceptible to hazardous conditions such as floodplains, coastlines, and wildfire risk areas. The amendments clarify that areas susceptible to hazards include those affected by climate change, and the effects of GHG emissions might include flooding, sea-level rise and wildfires. These should be considered in the project EIR in a manner consistent with the probability of the potential hazard.
The Resources Agency stated in its Final Statement that this amendment regarding hazards was made in response to public comments. Recognizing the potential for overlap, the public requested "guidance addressing the analysis of climate change on a project" in response to the 2009 California Climate Adaptation Strategy Discussion Draft (issued 2009) pursuant to Executive Order S-13-2008. The Adaptation Strategy is a programmatic document that prescribes State action for addressing the effects of climate change. CEQA is not the tool to implement the Adaptation Strategy.
Appendix F of the Guidelines was revised to ensure that lead agencies recognize that analysis and mitigation of energy impacts is not only a procedural requirement but also a substantive requirement of Public Resources Code 21100(b)(3). Analysis and mitigation are mandatory.
These amendments provide some clarification regarding what aspects of impacts of GHG emissions should be analyzed in the EIR.
How Is Mitigation of Significant Emissions Impacts Addressed?
The addition of section 15126.4(c) addresses mitigation measures related to GHG emissions. Lead agencies must consider feasible means of mitigating the significant effects of GHGs based on "substantial evidence and subject to monitoring or reporting." Id. Reductions in emissions not otherwise required may constitute mitigation pursuant to the CEQA Guidelines. Such mitigation measures may include: (1) mitigation measures in an adopted plan, (2) reductions resulting from project implementation including measures identified in Appendix F, (3) off-site measures including carbon offsets, community energy conservation projects, and forestry projects, (4) greenhouse gas sequestration, and (5) development of measures that can be implemented at the project level. Id.
The amendments also add section 15183.5 addressing GHG reduction plans in tiering and streamlining GHG emissions analyses. It recognizes that "GHG emissions may be best analyzed and mitigated at a programmatic level" consistent with state policy. Section 15183.5(a) states that existing CEQA Guidelines regarding tiering apply to GHG analysis. Section 15183.5(b) provides criteria for determining if an existing GHG reduction plan is appropriate for tiering the cumulative impacts analysis. Requirements for an existing GHG reduction plan must be binding and enforceable on the project or must be incorporated into the project as mitigation measures.
The amendments become effective March 18th of this year. Only time will tell if the amendments achieve their goal of providing greater clarity to lead agencies on how to analyze the effects of project-related GHG emissions. On a parallel track, the CARB is developing new information and criteria pursuant to Assembly Bill 32, The Global Warming Solutions Bill. The CEQA Guidelines will be amended periodically to account for this new information.
For more information, please contact Brenna Moorhead. Brenna Moorhead is an associate in the Real Estate, Lane Use and Environmental Practice Group in the firm’s San Francisco Office.
 The Amendments define GHGs as including "but not limited to: carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexaflouride" consistent with section 38505(g) of the Health and Safety Code.


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20. Jonathan CAWOOD b. 1760, Otley, Yorks, bap. 31 Dec 1760, All Saints' Church, Otley, Yorks, occupation Sadler, m. 7 Jan 1783, in All Saints' Church, Otley, Yorks, Elizabeth MYERS, bap. 11 Jan 1762, All Saints' Church, Otley, Yorks, (daughter of Thomas MYERS and Mary TOPHAM).
i. John CAWOOD b. 1784, Otley, Yorks, bap. 27 Mar 1785, All Saints' Church, Otley, Yorks, d. before 1787.
ii. Jonathan CAWOOD b. 1785, Otley, Yorks, bap. 26 Feb 1786, All Saints' Church, Otley, Yorks.
iii. John CAWOOD b. 1787, Otley, Yorks, bap. 16 Mar 1788, All Saints' Church, Otley, Yorks.
iv. Jeremiah CAWOOD b. 1792, Otley, Yorks, bap. 13 Jan 1793, All Saints'Church, Otley, Yorks, d. Jul 1809, Otley, Yorks, buried: 27 Jul 1809, All Saints' Church, Otley, Yorks.
v. Jonathan CAWOOD b. 1794, Otley, Yorks, bap. 29 Mar 1795, All Saints' ley, Yorks.
vi. Benjamin CAWOOD b. 27 Jun 1798, Otley, Yorks, bap. 5 Aug 1798, All Saints' Church, Otley, Yorks.
vii. Joshua CAWOOD b. c1806, d. Jul 1806, Otley, Yorks, buried: 30 Jul 1806, All Saints' Church, Otley, Yorks.
21. John CAWOOD b. 1763, Otley, Yorks, bap. 18 Nov 1763, All Saints' Church, Otley, Yorks, occupation Nailmaker, m. (1) 18 Apr 1785, in All Saints' Church, Otley, Yorks, Anne HARRISON, bap. 16 Mar 1760, Church of All Saints, Weston, Yorks, (daughter of William HARRISON and Jane REYNARD), m. (2) c1803, Sarah -----. Anne: Living in Otley at time of marriage.
i. Mary CAWOOD b. c1785, (Otley, Yorks), d. Apr 1786, Otley, Yorks, buried: 16 Apr 1786, All Saints' Church, Otley, Yorks.
i. Joseph CAWOOD b. 4 Apr 1804, Otley, Yorks, bap. 6 May 1804, All Saints' Church, Otley, Yorks.
22. William CAWOOD b. 1765, Otley Parish, Leeds, Yorks, bap. 9 Aug 1765, All Saints' Church, Otley, Yorks, occupation Nailmaker, m. 16 Jul 1787, in All Saints' Church, Otley, Yorks, Ann GLOVER, b. c1768, Yorks, buried: 16 Oct 1823, All Saints' Church, Otley, Yorks. William died Feb 1836, Otley, Yorks, buried: 28 Feb 1836, All Saints' Church, Otley, Yorks.
iii. Nanny CAWOOD b. 1790, Otley, Yorks, bap. 9 Apr 1790, All Saints' Church, Otley, Yorks.
iv. Alice CAWOOD b. c1792, Otley, Yorks, d. May 1793, Otley, Yorks, buried 28 May 1793, All Saints' Church, Otley, Yorks.
v. Mary CAWOOD b. 1793, Otley, Yorks, bap. 2 Mar 1794, All Saints' Church, Otley, Yorks.
vi. Jonathan CAWOOD b. c1795, (Otley, Yorks), d. Dec 1795, Otley, Yorks, buried: 20 Dec 1795, All Saints' Church, Otley, Yorks.
vii. Maria CAWOOD b. 1796, Otley, Yorks, bap. 1 Jan 1797, All Saints' Church, Otley, Yorks, m. 26 Aug 1816, in All Saints' Church, Otley, Yorks, Abraham MARSHALL, b. c1791, Yorks, bap. 20 Aug 1791, All Saints' Church, Otley, Yorks.
viii. Harriet CAWOOD b. 24 Jun 1800, Otley, Yorks, bap. 3 Aug 1800, All Saints' Church, St Otley, Yorks, m. 26 Feb 1827, in St Oswald's Church, Guiseley, Yorks, David TIFNERY, b. c1800, Yorks.
x. John CAWOOD b. 14 Mar 1805, Otley, Yorks, bap. 3 Jun 1805, All Saints' Church, Otley, Yorks, d. Dec 1807, Otley, Yorks, buried: 2 Jan 1808, All Saints' Church, Otley, Yorks.
xi. Hannah CAWOOD b. 7 Dec 1807, Otley, Yorks, bap. 2 Jan 1808, All Saints' Church, Otley, Yorks.
xii. Jonathan CAWOOD b. 15 Jul 1810, Otley, Yorks, bap. 5 Aug 1810, All Saints' Church, Otley, Yorks, d. Apr 1816, Otley, Yorks, buried: 12 Apr 1816, All Saints' Church, Otley, Yorks.
xiv. Joseph CAWOOD b. 1815, Otley, Yorks, bap. 24 Sep 1815, All Saints' Church, Otley, Yorks, d. Apr 1830, Otley, Yorks, buried: 17 Apr 1830, All Saints' Church, Otley, Yorks.
23. Anne CAWOOD b. 1767, Otley, Yorks, bap. 8 Jan 1768, All Saints' Church, Otley, Yorks, m. 20 Sep 1785, in All Saints' Church, Otley, Yorks, William PARKIN, occupation Silver Plater.
i. John PARKIN b. 1786, Otley, Yorks, bap. 4 Jun 1786, All Saints' Church, Otley, Yorks.
ii. William PARKIN b. 1788, Otley, Yorks, bap. 18 Apr 1788, All Saints' Church, Otley, Yorks.
iii. Betty PARKIN b. 1791, Otley, Yorks, bap. 1 May 1791, All Saints' Church, Otley, Yorks.
24. Jonathan CAWOOD b. 1772, Otley, Yorks, bap. 29 Nov 1772, All Saints' Church, Otley, Yorks, occupation Nail Maker, m. (1) ----- -----, m. (2) 3 Feb 1793, in All Saints' Church, Otley, Yorks, Sarah BLAKEY, b. c1772, occupation Nail Maker, d. Oct 1833, (Otley, Yorks), buried: 13 Oct 1833, All Saints' Church, Otley, Yorks.
i. James CAWOOD b. 1790, Otley, Yorks, bap. 8 Aug 1790, All Saints' Church, Otley, Yorks.
ii. Rachel CAWOOD b. 1793, Otley, Yorks, bap. 29 Dec 1793, All Saints' Church, Otley, Yorks.
iii. John CAWOOD b. 1795, Otley, Yorks, bap. 27 Mar 1796, All Saints' Church, Otley, Yorks.
iv. Jonathan CAWOOD b. 1797, Otley, Yorks, bap. 26 Nov 1797, All Saints' Church, Otley, Yorks.
v. Abraham CAWOOD b. 31 Jul 1800, Otley, Yorks, bap. 3 Aug 1800, All Saints' Church, Otley, Yorks.
vi. Sarah CAWOOD b. 15 Mar 1806, Otley Yorks, bap. 6 Aug 1806, All Saints' Church, Otley, Yorks.
vii. George CAWOOD b. 6 Nov 1808, Otley, Yorks, bap. 8 Feb 1809, All Saints' Church, Otley, Yorks.
viii. Jacob CAWOOD b. 12 Mar 1812, Otley, Yorks, bap. 17 May 1812, All Saints' Church, Otley, Yorks.
25. Sarah CAWOOD b. 1777, Otley, Yorks, bap. 3 Aug 1777, All Saints' Church, Otley, Yorks, m. 16 Sep 1794, in All Saints' Church, Otley, Yorks, Henry BROWN, bap. 5 Jun 1775, All Saints' Church, Otley, Yorks, (son of Henry BROWN and Elizabeth DAWSON) occupation Cordwainer.
i. John BROWN b. 1795, Otley, Yorks, bap. 17 May 1795, All Saints' Church, Otley, Yorks.
ii. Henry BROWN b. 1796, Otley, Yorks, bap. 29 Jan 1797, All Saints' Church, Otley, Yorks, d. Jun 1797, Otley, Yorks, buried: 24 Jun 1797, All Saints' Church, Otley, Yorks.
iii. William BROWN b. 17 Aug 1798, Otley, Yorks, bap. 10 Oct 1798, All Saints' Church, Otley, Yorks, d. Aug 1800, Otley, Yorks, buried: 8 Aug 1800, All Saints' Church, Otley, Yorks.
iv. Henry BROWN b. 26 Oct 1800, Otley, Yorks, bap. 9 Nov 1800, All Saints' Church, Otley, Yorks.
v. Mary Anne BROWN b. 23 Jul 1802, Otley, Yorks, bap. 8 Aug 1802, All Saints' Church, Otley, Yorks.
vi. Elizabeth BROWN b. c1803, (Otley, Yorks), d. May 1804, Otley, Yorks, buried: 15 May 1804, All Saints' Church, Otley, Yorks.
vii. Jane BROWN b. c1805, Otley, Yorks, d. May 1806, Otley, Yorks, buried: 18 May 1806, All Saints' Church, Otley, Yorks.
viii. Anne BROWN b. 15 Jan 1806, Otley, Yorks, bap. 6 Apr 1806, All Saints' Church, Otley, Yorks.
ix. Sarah BROWN b. 3 Jan 1808, Otley, Yorks, bap. 31 Jan 1808, All Saints' Church, Otley, Yorks.
x. George BROWN b. 27 Aug 1810, Otley, Yorks, bap. 23 Sep 1810, All Saints' Church, Otley, Yorks.
26. Elizabeth CAWOOD b. 1779, Otley, Yorks, bap. 3 May 1779, All Saints' Church, Otley, Yorks, m. 14 Jun 1797, in All Saints' Church, Otley, Yorks, John BOWLING, bap. 27 Nov 1774, All Saints' Church, Otley, Yorks, (son of Richard BOWLING and Mary BARWICK) occupation Joiner.
i. Richard BOWLING b. 1797, Otley, Yorks, bap. 12 Nov 1797, All Saints' Church, Otley, Yorks.
ii. Mary BOWLING b. 13 Jan 1790, Otley, Yorks, bap. 3 Mar 1799, All Saints' Church, Otley, Yorks.
iii. Hannah BOWLING b. 9 Feb 1801, Otley, Yorks, bap. 15 Mar 1801, All Saints' Church, Otley, Yorks.
iv. Elizabeth BOWLING b. 2 May 1803, Otley, Yorks, bap. 10 Apr 1803, All Saints' Church, Otley, Yorks.
v. Sarah BOWLING b. 2 Dec 1804, Otley, Yorks, bap. 20 Feb 1805, All Saints' Church, Otley, Yorks.
vi. Maria BOWLING b. 20 Aug 1807, Otley, Yorks, bap. 10 Oct 1807, All Saints' Church, Otley, Yorks.
vii. John BOWLING b. 22 Mar 1809, Otley, Yorks, bap. 18 Jun 1809, All Saints' Church, Otley, Yorks, d. Aug 1811, Otley, Yorks, buried: 19 Aug 1811, All Saints' Church, Otley, Yorks.
viii. Frederick BOWLING b. 7 Dec 1810, Otley, Yorks, bap. 14 Apr 1811, All Saints' Church, Otley, Yorks.
ix. John BOWLING b. 25 Sep 1812, Otley, Yorks, bap. 22 Nov 1812, All Saints' Church, Otley, Yorks.
27. Martin CAWOOD b. 1780, Otley, Yorks, bap. 29 Dec 1780, All Saints' Church, Otley, Yorks, occupation Nail Maker; Plater, m. 21 Oct 1801, in All Saints' Church, Otley, Yorks, Sarah CHEADLE, b. c1781, (Otley, Yorks), bap. 5 Aug 1781, All Saints' Church, Otley, Yorks, (daughter of George CHEADLE and Hannah THOMPSON).
i. Mary CAWOOD b. 1801, Otley, Yorks, bap. 25 Jan 1802, All Saints' Church, Otley, Yorks, d. 27 Jan 1802, Otley, Yorks, buried: 28 Jan 1802, All Saints' Church, Otley, Yorks.
ii. Martha CAWOOD b. 7 Jan 1804, bap. 19 Feb 1804, All Saints' Church, Otley, Yorks.
iii. Eliza CAWOOD b. 17 Apr 1812, Otley, Yorks, bap. 14 Jun 1812, All Saints' Church, Otley, Yorks.
28. John CAWOOD b. 1783, Otley, Yorks, bap. 27 Mar 1875, occupation Nailmaker, m. 9 Aug 1811, in All Saints' Church, Otley, Yorks, Hannah HARTLEY, b. 1778, bap. 20 Nov 1778, All Saints' Church, Otley, Yorks.
29. Thomas CAWOOD b. 1784, Otley, Yorks, bap. 10 Apr 1784, All Saints' Church, Otley, Yorks, m. c1809, Anne -----.
i. Angelina CAWOOD b. 2 Sep 1810, Otley, Yorks, bap. 2 Nov 1810, All Saints' Church, Otley, Yorks.
ii. Alfred Christopherson CAWOOD b. 1816, Otley, Yorks, bap. 26 Jan 1817, All Saints' Church, Otley, Yorks.
30. James BROWN b. 1772, Otley, Yorks, bap. 1 Nov 1772, All Saints' Church, Otley, Yorks, occupation Saddler; Bridle Cutter, m. 6 Aug 1792, in All Saints' Church, Otley, Yorks, Hannah MOODY, bap. 7 Apr 1774, All Saints' Church, Otley, Yorks, (daughter of Edward MOODY and Frances CLARK).
i. Christopher BROWN b. 1792, Otley, Yorks, bap. 7 Nov 1792, All Saints' Church, Otley, Yorks.
ii. John BROWN b. 1794, Otley, Yorks, bap. 14 Sep 1794, All Saints' Church, Otley, Yorks.
iii. Elizabeth BROWN b. 30 May 1800, Otley, Yorks, bap. 5 Jul 1800, All Saints' Church, Otley, Yorks, d. Dec 1804, Otley, Yorks, buried: 7 Dec 1804, All Saints' Church, Otley, Yorks.
iv. Fanny BROWN b. 4 Mar 1804, Otley, Yorks, bap. 1 Apr 1804, All Saints' Church, Otley, Yorks, d. Oct 1810, Otley, Yorks, buried: 22 Oct 1810, All Saints' Church, Otley, Yorks.
i. James BROWN b. c1809, Otley, Yorks, d. Nov 1809, Otley, Yorks, buried: 30 Nov 1809, All Saints' Church, Otley, Yorks.
32. Mary Grace CAWOOD b. 1784, Otley, Yorks, bap. 8 Apr 1784, All Saints' Church, Otley, Yorks.
i. Thomas CAWOOD b. 18 Mar 1803, Otley, Yorks, bap. 17 Apr 1803, All Saints' Church, Otley, Yorks.
33. Sarah CAWOOD b. 1779, Otley, Yorks, bap. 5 Dec 1779, All Saints' Church, Otley, Yorks.
i. Anne CAWOOD b. 29 Apr 1804, Otley, Yorks, bap. 10 Jun 1804, All Saints' Church, Otley, Yorks.
34. James CAWOOD b. 21 Oct 1798, Cawoods Mill, Keighley, Yorks, bap. 25 Nov 1798, Keighley, Yorks, m. 16 May 1830, in Grahamstown, South Africa, Elizabeth HARTLEY, b. 16 Dec 1806, Mansfield, Notts, (daughter of Thomas HARTLEY and Hannah HOPKINS) d. 1 Jun 1865, Stanford Hill, London. James died 17 Feb 1876, Grahamstown.
i. Mary Hannah CAWOOD b. 12 Feb 1831, Kaffir Drift, Albany, Cape, bap. 24 Feb 1831, Grahamstown, Cape, d. 1832, Somerset East.
ii. Sarah Elizabeth CAWOOD b. 27 Jul 1832, Port Natal, d. 6 Apr 1833, Port Natal.
iii. Sarah Elizabeth CAWOOD b. 1 Oct 1833, Kaffir Drift, bap. 24 Nov 1833, Bathurst, Cape, d. 15 May 1834, Somerset East, buried: Somerset East Museum Cemetery.
iv. Elizabeth Hartley CAWOOD b. 31 Jul 1835, Somerset East.
vi. Leonora Ann Hartley CAWOOD b. 12 Feb 1838, Somerset East, bap. 7 Feb 1839, Grahamstown, South Africa, m. Henry Norman DE SALIS. Leonora died 1919.
viii. Emma Thomasina CAWOOD b. 16 Oct 1839, Somerset East, d. 3 Feb 1842, Somerset East, buried: Somerset East Museum Cemetery.
x. Helen Gertrude CAWOOD b. 12 Oct 1844, Somerset East.
xi. John Jeremiah Joseph CAWOOD b. 30 Jan 1847, Somerset East, m. Elizabeth TURNEY, d. 1927. John died before 1927.
35. William CAWOOD b. 3 Aug 1800, Cawoods Mill, Keighley, Yorks, bap. 31 Aug 1800, Keighley, Yorks, m. (1) 10 Dec 1827, in Bathurst, Cape of Good Hope, Martha SENIOR b. c1811, (daughter of ----- SENIOR and Sarah -----) d. 12 Mar 1833, Kaffir Drift, m. (2) 15 Sep 1834, in Bathurst, Sarah HULLEY, b. 27 Dec 1815, Bandon, Co. Cork, Ireland, (daughter of Richard HULLEY and Ann BRANGAN) d. 11 Dec 1888, Cradock, buried: 12 Dec 1888, Cradock. William died 1 Jul 1877doc, Cradock, South Africa, buried: 2 Jul 1877, Cradock.
iii. David William CAWOOD b. 30 Dec 1836, d. 9 Jan 1837.
x. Rosina Smith CAWOOD b. 6 Jun 1847, Cradock, bap. 12 Sep 1847, Cradock Wesleyan Methodist Church, m. 19 May 1869, in Cradock Wesleyan Methodist Church, Thomas Sidney WHITE.
xv. Lydia CAWOOD b. 14 Mar 1855, Cradock, bap. 6 May 1855, Cradock Wesleyan Methodist Church, m. Herbert BAGNALL. Lydia died 1917.
36. John CAWOOD b. Jun 1801, Bingley, Yorks, bap. 4 Jul 1802, Keighley, Yorks, m. 8 Jun 1826, in Bathurst, Cape of Good Hope, Ann MURRAY, b. 1808, (daughter of James MURRAY and Mary -----) d. 1876. John died 20 Apr 1846, Grahamstown.
i. Mary CAWOOD b. 1825, Grahamstown, bap 22 Apr 1832, Bathurst, Cape, d. 5 Apr 1862, Cape.
ii. Anne CAWOOD b. 15 Jan 1829, Cawood's Postdoc, Albany, Cape, bap. 22 Apr 1832, Bathurst, Cape, m. 16 Apr 1850, in Bathurst, Cape, William MANDY, b. 1820, at sea, (son of John MANDY and Ann -----) d. 20 Jan 1887, Bathurst, Cape. Anne died 24 Apr 1903, Bathurst.
iii. Henry CAWOOD b. 1829, bap. 9 Jan 1830, Grahamstown.
v. Jane CAWOOD b. 1832, bap. 10 Feb 1833, Bathurst, Cape, d. 1854.
vi. James CAWOOD b. 1835, bap. 28 Jun 1835, Grahamstown, d. 16 Sep 1895, Victoria East, Cape.
37. Joshua CAWOOD b. 1804, Bingley, Yorks, bap. 1 Apr 1804, Keighley, Yorks, m. 12 Feb 1829, in Grahamstown, Mary MANLEY, b. 29 Apr 1813, (daughter of Thomas MANLEY and Margaret ROBINSON) d. 2 Jul 1897, Mt Stewart. Joshua died 10 Jan 1875, "Brimesdam", Aberdeen, South Africa, buried: Mt Stewart.
i. Jesse CAWOOD b. c1827, m. ----- MAREE.
iv. Henry Ralph CAWOOD b. c1831.
v. Mary Ellen CAWOOD b. c1832.
vii. David Thomas CAWOOD b. c1835, bap. 18 Oct 1835, Grahamstown.
viii. Edmund William CAWOOD b. c1836.
ix. Johanna Elizabeth CAWOOD b. c1837, m. ----- VAN RENSBURG.
x. Bella CAWOOD m. ----- VAN DER BERGH.
38. Elizabeth CAWOODdoc b. 13 Jun 1805, Waybank Hall, near Bingley, Yorks, bap. 11 Aug 1805, Keighley, Yorks, m. 1 Jan 1822, in Grahamstown, South Africa, William GRADWELL, b. Nov 1797, Thwaithead, Colton, Lancs, bap. 14 Nov 1797, Colton, Lancs, (son of William GRADWELL and Sarah RIGG) d. 26 Nov 1849, Grahamstown. Elizabeth died 4 Sep 1896, Somerset East.
iii. James GRADWELL b. 10 Jun 1826, Albany, Cape, South Africa.
iv. John Strickland GRADWELL b. 26 Apr 1829, Kaffir Drift, Albany, Cape, bap. 28 Mar 1830, Clumber, Albany, Cape, m. (1) 3 Jun 1851, in Grahamstown, Catherine SULLIVAN, m. (2) 22 Sep 1857, in Grahamstown, Lelia Jane HILL, b. c1836, Grahamstown, South Africa.
v. David Cawood GRADWELL b. 11 Aug 1831, Albany, Cape, South Africa, bap. 23 Oct 1831, Grahamstown, d. 22 Oct 1896, Woodlands, Albany, Cape.
vi. Agnes GRADWELL b. 5 Jan 1834, Albany, Cape, m. Charles KENT.
vii. Isabella GRADWELL b. 21 Jun 1836, Albany, Cape, bap. 25 Sep 1836, Grahamstown, d. 1837.
viii. Sarah GRADWELL b. 7 Dec 1838, m. Benjamin HULLEY, b. 4 Jul 1826, Trappe's Valley, (son of Richard HULLEY and Ann BRANGAN) d. 20 Jan 1901, Somerset East. Sarah died 9 Jul 1920.
x. Elizabeth Ann GRADWELL b. 8 Nov 1843, Sundays River, Albany, Cape, bap. 13 Feb 1844, Port Elizabeth, d. 19 Jun 1920, Somerset East.
xi. Betty GRADWELL b. 19 Mar 1846, Port Elizabeth, d. 1917.
This file is continued in The Cawood File (Part III). Click on the appropriate link on the right.

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


text:
3 Q1: What consequences does the GDPR has for the XMPP network, XMPP server operators and what can/should the XSF do with that?
3.1 Q1.1: What consequences does the GDPR has for the XMPP network?
3.1.5.1 Is the user supplied data of special categories or not?
3.3 Q1.3: What can/should the XSF do with it?
4 Q2: What consequences does the GDPR has for the XSF run XMPP server?
5 Q3: What consequences does the GDPR has for the work processes of the XSF itself (membership, voting, wiki etc)?
Collaboration with IETF was mentioned during previous board meeting that started this ad-hoc group. Who is working on it, (how) should we collaborate with them?
Q1: What consequences does the GDPR has for the XMPP network, XMPP server operators and what can/should the XSF do with that?
General note: The legal entity (person, company) that is responsible for a XMPP server is a 'Controller' of data. A hosting service (or other services) are 'processors'.
When federating, data is transferred from one controller to an other.
Q1.1: What consequences does the GDPR has for the XMPP network?
The GDPR is applicable to anyone offering services from EU, or to EU citizens, paid or non-paid and to anyone explicitly targeting EU inhabitants.
Data Controller - a person or organisation who collects, stores or processes data about a natural person and who determines the goals and the means of the processing of the data.
Data Processor - a person (not employee of the controller) or organisation who processes data on behalves of a Data Controller.
Third Party - a Data Controller that receives data from an other Controller. This transfer of Data is a processing on its own within the GDPR.
Third Party: the XMPP server of the receiving person.
Message storage (MAM, offline storage): Note: the data here is a personal conversation, this conversation contains messages from one or more other users but these are stored under the responsibility of and as personal from the user using the storage.
Note: Storage is considered as processing under art. 4.2.
typical: stored while receiving user is online (to avoid having to send out probes for new resources).
minimal: handing over to receiving users server if online; storage of roster-related things with account.
minimal: forwarded to receiving users connections if online; storage of roster-related things with account.
Spam detection is not standardized, so hard to assess here. There are also many thin lines, like reading messages for manual tweaking of spam-rules, using machine learning and filtering on words that may indicate content from art. 9.1. Therefore we can not give a general answer about spam detection, but we do need to give some guidance on it.
Art. 6.1b can be used as ground for processing, so the permission is implicitly granted when signing up for the XMPP service. The EULA must then contain information about the information processed.
Is the user supplied data of special categories or not?
Though most servers do process messages that contain data like that, it is not processing, analogue to the status of pictures. Though it contains such sensitive data, as long as it is not analysed and categorized on those categories, it is not subject to art. 9.
As soon as such analysis is done, e.g. for spam filtering, it is not covered any more by the legal framework sketched here. Processing such data for spam filtering for example mus have explicit consent.
Processing is done for the performance of a contract with the data subject (art. 6.1b). The contract (does not have to be an explicit contract) would then be: "to take care of the communication"
Message Archive Management (MAM) is not obvious a service when signing up with a XMPP server. So it can not be covered by the same legal ground for processing, it should be off by default and the user should turn it on manually. The ground for processing is here article 9.1a.
Q. by Winfried: is this indeed 6.1a or a second 6.1b? By requesting the archiving service, the user has second(ary) service he wants to perform. Art. 6.1a is problematic, because it brings in the permission question as described in art 7.
Any additional processing, not needed for the contract the data subject is engaged in, is not covered.
The structure of XMPP ensures that all data subject rights are guaranteed, except for the right of deletion and the right to transfer the data. The right of deletion is not implemented in all standards. The right to transfer, though only applicable to data that is processed under art 6.1a, not 6.1b, is also not guaranteed. Two elements would help to ensure the right tot transfer is ensured correctly: a 'download client' and automatic transfer to an other server.
These are WIP and will be moved to git(hub), under some template form, to allow for server operators to benefit from last changes directly.
Q1.3: What can/should the XSF do with it?
Should changes required for GDPR compliance be mentioned directly into the XEPs we want to modify, or should they be mentioned in another XEP proper to GDPR, as discussed in standards@ thread. Do we want local law requirements to appear in protocol specifications.
Q2: What consequences does the GDPR has for the XSF run XMPP server?
Q3: What consequences does the GDPR has for the work processes of the XSF itself (membership, voting, wiki etc)?
Voting results, that could be considered as "political opinions".
Link with IETF and other projects with similar issues.
will be passed to third parties"
MUC status code: 170 when MAM enabled. Also something to say if the logs are public or private.
last online timestamp, status message, online status, list of online devices: contacts, chatroom participants?
Add a note to the MAM XEP about GDPR consent requirements.
MAM XEP doesn't provide a way to differentiate between "explicitely set" and "enabled by default"
Note: Jingle-FT, server-side, doesn't support deletion. goffi mentioned he would submit a protoXEP for this.
List data types and their means of export, in ways that allow reuploading to other servers.
Provide an xmpp "client" as an export tool?
resurrect the idea of automatic transfer of an account to an other server, see XEP-0227 & XEP-0283.
Does 9.1 automatically apply to all (not e2e encrypted) user-sent content, or only if we are analyzing it for profiling/other purposes? Does using e2e encryption change this?
opaque blob and don't analyse it, art9 doesn't apply, (See r51). Not sure how this plays with mod_firewall processing, spam filtering etc.
Lawyer 2: 9.1 is not applicable because it is revealed by the user (9.2e).
Can (implicit) consent as in art. 6.1b also apply to transfer to other controllers (as in other XMPP server operators)?
The transfer to the other itself can be covered by 6.1b (and 49.1b when transfer outside the EU), because it is necessary to deliver the service the user requested.
The processing on the other server can also be covered by 6.1b, but only as long as not further processing is done.
This page was last modified on 22 May 2018, at 12:37.

matches:
art. 4
art. 9
Art. 6
art. 9
Art. 6
art 7
art 6
art9
art. 6


This recent judgment of HH Judge Molyneaux (sitting as a Judge of the High Court) concerned the issue of adequacy of consideration for a restrictive covenant in an amended employment contract. It may be contrasted with the case of Reuse Collections Ltd v Sendall  EWHC 3852;  IRLR 226, where an amended contract imposing a restrictive covenant on the employee was held to be unsupported by consideration. This bulletin considers Decorus and contrasts it with Sendall.
Mr Penfold (“D1”) was employed as a sales manager at Decorus Ltd (“C”), an IT reselling company. He resigned to establish his own company, Procure Store Limited (“D2”), with the objective of competing with Decorus. D1 admitted accessing confidential information during the course of his employment. He approached C’s existing clients, informed them he was setting up his own business, and deliberately undercut his employer’s prices in order to secure their custom. Unsurprisingly, the Judge concluded this conduct breached the employee’s duty of fidelity (at §52), and that there was an equitable duty upon D1 and D2 not to use the information to their benefit (at §94). More significantly however, C sought to enforce a post-termination restrictive covenant (“PTR”) in D1’s employment contract, and claimed damages for breach.
When D1 joined C in 2012 he signed a contract with relatively onerous non-compete and non-solicitation clauses. It is trite law that clauses in restraint of trade are prima facie unenforceable unless the employer can show that they do no more than is reasonably necessary to protect the employer’s business interests, and are in the public interest (Herbert Morris Limited v Saxelby  1 AC 688, per Lord Atkinson at 706). The clause in the 2012 contract may not have met that standard, and as such, may have been unenforceable against D1. However, in May 2013 D1 signed a new contract with amended terms, including a more nuanced PTR. Significantly, the duration of the non-compete and non-solicitation clauses in the 2012 contract was reduced from nine months to six. An HR consultant to C gave evidence that the nine-month clause in the 2012 contract was longer than the industry standard, and she had advised C that a six-month restraint was more likely to be enforceable (at §66). It is well established that, where a restrictive covenant is sought to be introduced or amended during an employment relationship, the change must be supported by consideration. The critical issue was therefore whether there was good consideration for the 2013 amendment.
A similar issue was considered in Sendall. In that case, the employee was not initially subject to a written contract. A written contract was eventually introduced which included, among other terms, a restrictive covenant. It was argued for the employer that "the covenants contained in the contract of employment were supported by consideration, because they were introduced as part of a package under which benefits were conferred upon [the employee], including a pay rise. Alternatively, it is said that consideration can be found in his continued employment in the months after the contract of employment was produced" (at §72). Rejecting that argument, HH Judge Stephen Davies (sitting as a Judge of the High Court) held in Sendall that there was insufficient evidence that the new contractual terms and the pay rise were linked, and that it had not been “made clear to [the employee] that the increase was conditional upon his accepting the contract of employment” (at §81). The Judge held that the PTR was not supported by consideration.
The circumstances in which the contract was varied in Decorus were very similar to those in Sendall. In both cases, there was a gap of around three weeks between the new contract and the employee receiving a pay rise. In both cases, the bulk of thecontractual terms remained unchanged both before and after the variation. And in both cases, a period of consultation had preceded the introduction of the new terms. Yet, in HH Judge Molyneux’s judgment, the combination of circumstances in Decorus constituted valid consideration (at §72). A similar outcome was reached in Pickwell & Anor v Pro Cam CP Ltd  IRLR 761, where HH Judge Curran QC (sitting as a Judge of the High Court) distinguished Sendall and found that there was good consideration for a newly introduced restraint clause.
The judgment in Sendall was cited in passing in Decorus (at §57), but without reference to the similarities between them. Are the two cases necessarily inconsistent, or can they be reconciled? Although the initial PTR in Decorus may have appeared more onerous than its successor provision, it would probably have been less onerous in practice. This is because the more onerous the PTR, the less likely it is to be enforceable. Thus, a variation to an employment contract which introduces an ostensibly less onerous PTR, may have the paradoxical effect of becoming more onerous for the employee. It replaces an unenforceable PTR with an enforceable one. Decorus can perhaps be distinguished from Sendall on the basis that the contractual amendment in Sendall included a PTR for the first time, whereas the variation in Decorus simply amended an existing PTR. Since neither judgment has been appealed, however, we are unlikely to find out for some time.


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On this week's edition of the show, we'll celebrate the birthdays of Stan Greening, Frank Winegar and the State of Ohio, do some marching, go to the movies, have a couple of records from the grab bag and have the last word. As always, just click on the link below to instantly listen streaming online and/or download the show. And as always, your comments, topic suggestions and requests are always welcome. Enjoy!
He's The Last Word – The Broadway Bellhops / Irving Kaufman, v.
You're The Very Last Word In Love – Gray Gordon and His Tic-Toc Rhythm / Betty Lane, v.
Moonlight March – Ted Wallace and His Campus Boys / Smith Ballew, v.
Marching Along Together – Ben Bernie AHO / Ben Bernie, v.
My Ohio Home – Eddie South and His Alabamians / Eddie South and Jerome Burke, v.
Billy Scott-Comber, v. / Jack Payne, Jack Jackson, et.al., sp.
Sad Sap Scuker Am I – Fats Waller and His Rhythm / Fats Waller, v.
Au Revoir, Pleasant Dreams – Rhythmic Troubadors / Tom Barrett, v.


text:
15. A coetus fidelium ("group of the faithful") can be said to be stabiliter existens ("existing in a stable manner"), according to the sense of art. 5 § 1 of the Motu Proprio Summorum Pontificum, when it is constituted by some people of an individual parish who, even after the publication of the Motu Proprio, come together by reason of their veneration for the Liturgy in the Usus Antiquior, and who ask that it might be celebrated in the parish church or in an oratory or chapel; such a coetus ("group") can also be composed of persons coming from different parishes or dioceses, who gather together in a specific parish church or in an oratory or chapel for this purpose.
a.) Every Catholic priest who is not impeded by Canon Law7 is to be considered idoneus ("qualified") for the celebration of the Holy Mass in the forma extraordinaria.
30. As regards tonsure, minor orders and the subdiaconate, the Motu Proprio Summorum Pontificum does not introduce any change in the discipline of the Code of Canon Law of 1983; consequently, in Institutes of Consecrated Life and Societies of Apostolic Life which are under the Pontifical Commission Ecclesia Dei, one who has made solemn profession or who has been definitively incorporated into a clerical institute of apostolic life, becomes incardinated as a cleric in the institute or society upon ordination to the diaconate, in accordance with canon 266 § 2 of the Code of Canon Law.
33. If there is a qualified priest, a coetus fidelium ("group of faithful"), which follows the older liturgical tradition, can also celebrate the Sacred Triduum in the forma extraordinaria. When there is no church or oratory designated exclusively for such celebrations, the parish priest or Ordinary, in agreement with the qualified priest, should find some arrangement favourable to the good of souls, not excluding the possibility of a repetition of the celebration of the Sacred Triduum in the same church.
3 Cf. Code of Canon Law, Canon 838 §1 and §2.
4 Cf. Code of Canon Law, Canon 331.
5 Cf. Code of Canon Law, Canons 223 § 2 or 838 §1 and §4.
6 BENEDICTUS XVI, Epistola ad Episcopos ad producendas Litteras Apostolicas motu proprio datas, de Usu Liturgiae Romanae Instaurationi anni 1970 praecedentis, AAS 99 (2007) 799.
7 Cf. Code of Canon Law, Canon 900 § 2.
8 Cf. Code of Canon Law, Canon 249; Second Vatican Ecumenical Council, Constitution Sacrosanctum Concilium, 36; Declaration Optatum totius, 13.9 BENEDICTUS XVI, Epistola ad Episcopos ad producendas Litteras Apostolicas motu proprio datas, de Usu Liturgiae Romanae Instaurationi anni 1970 praecedentis, AAS 99 (2007) 797.

matches:
art. 5
§ 1
§ 2
§1
§2
§ 2
§1
§4
§ 2


On October 30, 2017, Governor Tom Wolf signed legislation giving oil and gas operators specific mechanisms to shield themselves from claims that an oil and gas lease has terminated due to a cessation of production.
1) The lessor accepts a royalty payment following the recommencement of production after less than a year of non-production. 72 P.S. § 1610-E(a)(1).
2) The lessor accepts a royalty payment following the recommencement of production after more than a year of non-production and the lessee provides “an explanation, in plain terms, that the acceptance of the royalty payment shall constitute acknowledgment of an existing lease with the operator[.]” Id.
3) The operator, “after notifying the lessor of its intent to drill a new well and giving the lessor 90 days within which to object, drills a new well under the lease.” Notably, as to this third mechanism, the statute does not specify the level of detail required for the notice. 72 P.S. § 1610-E(a)(2).
Importantly, the statute does not apply to leases that expressly provide for termination following a fixed period of nonproduction. See 72 P.S. § 1610-E(b). Nor can it be used to circumvent an operator’s obligation to commence operations within a lease’s primary term. Id.
The statute offers operators an opportunity to resolve uncertainties that exist under Pennsylvania’s common law. Under the common law, the question of whether a temporary cessation of production terminates a lease can be difficult to answer and depends on the facts surrounding the period of nonproduction and evidence demonstrating an intent to abandon the lease. For instance, in Cole v. Philadelphia Co., 26 A.2d 920 (Pa. 1942), the Supreme Court of Pennsylvania held that a three to four-month cessation while the operator reworked the only producing well on the leasehold was not unreasonable and did not result in termination. In Clark v. Wright, 166 A. 775 (Pa. 1933), the same court held that a cessation of two years and 10 months during which time no rentals or royalties were paid demonstrated an intent by the lessee to abandon or surrender the lease. Under the common law, once a lease has been abandoned or surrendered, its termination is final and any further activities conducted by the operator are as a tenant at will. See Brown v. Haight, 255 A.2d 508 (Pa. 1969).
For more information, please contact Kenneth Witzel, Nicholas Koch or any other member of Frost Brown Todd’s Energy and Natural Resources Industry Team.