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14.1 Members, activists and supporters of armed opposition groups may have considerable fears about the consequences of disclosing their activities in evidence in their appeals.
14.2 The circumstances in which refugee status can be denied under article 1F of the Refugee Convention are deliberately narrow. The Tribunal has stated that art.1F must be interpreted restrictively, and that judges should not equate it with a simple anti-terrorist provision or adopt an 'exclusion culture' (Gurung (Exclusion - Risk - Maoist) Nepal  UKIAT 04870), see also AA (Exclusion Clause) Palestine  UKIAT 00104. In SSHD v R (JS (Sri Lanka))  UKSC 15, it was common ground before the Supreme Court that "because of the serious consequences of exclusion for the person concerned the article must be interpreted restrictively and used cautiously"; see too Al-Sirri and DD (Afghanistan) v SSHD  UKSC 54 at paragraphs 12 and 16.
14.2A The Tribunal in Gurung  UKIAT 04870 nevertheless encouraged the Home Office to allege art 1F exclusion more widely than the handful of cases in which it was then raised and, in recent years, the Home Office has indeed become much more proactive about doing so. This has led to a proliferation of caselaw, with two Supreme Court cases, nine in the Court of Appeal and ten in the Upper Tribunal in the last ten years. The detailed substantive law of exclusion is beyond the scope of this work; what follows is no substitute for a careful consideration of the leading cases such as JS (Sri Lanka)  UKSC 15, Al-Sirri  UKSC 54, T v SSHD  UKHL 8  AC 742 and the CJEU case of B and D (C-57/09 and C-101/09) in any case where art 1F may be raised. The Tribunal case of Gurung, which stood as the leading authority on exclusion for several years, has now been qualified by the higher courts (see especially paras 29-32 of JS (Sri Lanka)  UKSC 15). The key legislative provisions and extracts from JS and B and D are set out in appendices to the Upper Tribunal's decision in MT (Article 1F (a) – aiding and abetting) Zimbabwe  UKUT 00015 (IAC) and paras 95-103 and 116-119 of its decision contain useful summaries of the main principles. The decision in AH (Article 1F(b) – 'serious') Algeria  UKUT 00382 (IAC) contains a useful summary of the principles to be derived from Al-Sirri at para 30 and applies those principles to the assessment of whether a crime is a 'serious' non-political crime such as to lead to exclusion under Art 1F(b).
14.2B Exclusion from refugee status is also addressed by Article 12(2) and (3) of the Qualification Directive (implemented in domestic law by Regulation 7 of the Refugee or Person in Need of International Protection (Qualification) Regulations 2006). Art 12(2) substantially repeats the text of Art 1F of the Refugee Convention, although with additional clarification as to the meaning of "particularly serious crime" in Art 1F(b) and as to the sources of the "purposes and principles of the United Nations" in Art 1F(c). The Qualification Directive itself must be interpreted consistently with the Refugee Convention, and with the fundamental rights and principles recognised in the EU Charter of Fundamental Rights: B and D (C-57/09 and C-101/09) The Qualification Directive also provides for exclusion from Subsidiary Protection on significantly broader grounds, implemented by para 339D of the Immigration Rules in relation to Humanitarian Protection - see chapter 41.
14.2C If an individual is shown to be at real risk of a breach of Articles 2 or 3 ECHR on return to their home country, the ECHR precludes their removal regardless of the application of the exclusion clauses. In such cases, Home Office policy is to grant 'restricted leave', which is normally granted for only six months at a time, and will normally be subject to conditions similar to those granted under immigration bail such as residence, reporting and restrictions on employment, education and in some cases recourse to public funds. Settlement is only possible, if at all, after a continuous period of at least 10 years and in Babar  EWCA Civ 329, the Court of Appeal emphasised that it would only be in rare and exceptional cases that settlement would be granted even at that stage. An appellant will in such cases be protected from refoulement contrary to the ECHR, but there are very significant differences between restricted leave granted to those who are excluded, and leave to remain as a refugee or on humanitarian protection grounds. Most important among these are the right to family reunion, the availability of travel documents and the right to return to the UK during the currency of leave, as well as the sense of stability which the longer period of leave entails (and prospects of settlement after five years), and which can be critical for the recovery of survivors of torture, sexual violence and other trauma.
75 I readily accept that the Secretary of State might have had a case against DS under Article 1F(b) or (c) had the evidence and argument been presented in that way. But that was not the case advanced. The case was put squarely on participation in crimes against humanity, within Article 1F(a) . That was the basis of the Secretary of State's original decision and of her case before the immigration judge. That was the issue to which the evidence and submissions on behalf of DS were addressed. In order to pursue a case under Article 1F(b) or (c) , the Secretary of State would have had to give notice of the precise way in which the case was put, and DS would have had to be given an opportunity to obtain additional expert evidence and make further submissions. That was not done. The issues arising under Article 1F are potentially complex and the immigration judge could not sensibly reach a view on the application of Article 1F(b) or (c) simply on the basis of evidence and submissions directed to Article 1F(a) . If, despite the way in which the Secretary of State's case was put, the immigration judge considered that Article 1F(b) or (c) ought to be considered, it would have been open to her to invite the parties to deal with the issues, granting an appropriate adjournment for the purpose. But it cannot be said that she was required to go down that line, let alone that she was required to determine the case under Article 1F(b) or (c) on the basis of the existing material. Even if the Secretary of State is entitled to rely on the Robinson principle in relation to an issue such as this, which it is unnecessary to decide, the applicability of Article 1F(b) and (c) was not an obvious point (one with a strong prospect of success) such as to engage the principle and to require the immigration judge to take the point for herself.
Cases will arise where an individual's claims concerning potential Article 1F crimes or acts are not credible but were those claims true, they would amount to serious crimes or acts within the scope of Article 1F. Claims which are not credible cannot meet the requirement 'serious reasons for considering', that the individual has committed the crime or act. If the individual does not have protection needs, the claim must be refused on that basis and must not be certified under section 55 of the Immigration, Nationality and Asylum Act 2006. Following the assessment of credibility and the determination of refugee status the decision maker must set out briefly why, if the relevant statements in the claim were true, the individual must be excluded under Article 1F as an 'in the alternative' argument.
1. Section 55 of the Immigration, Asylum and Nationality Act 2006 does not require a decision on exclusion from asylum to be made at the outset of a hearing and prior to consideration of any other matters.
2. The effect of s.55 is to require a Tribunal in its written determination to decide exclusion from asylum first, before proceeding to address any other head of claim.
3. Deciding exclusion first is merely common sense, regardless of whether a s.55 certificate has been made by the respondent as it determines whether substantive consideration of the asylum claim is necessary.
4. There is no statutory provision akin to s.55 that can be applied when an applicant makes a claim for Humanitarian Protection. However, given the exclusion criteria in paragraph 339D of HC 395 (the Immigration Rules), which are very similar to those in Article 1F(a), a Tribunal should also decide on exclusion from Humanitarian Protection before substantive consideration of that claim.
75. We are, it is clear, attempting to discern the autonomous meaning of the words "serious reasons for considering". We do so in the light of the UNHCR view, with which we agree, that the exclusion clauses in the Refugee Convention must be restrictively interpreted and cautiously applied. This leads us to draw the following conclusions: (1) "Serious reasons" is stronger than "reasonable grounds". (2) The evidence from which those reasons are derived must be "clear and credible" or "strong". (3) "Considering" is stronger than "suspecting". In our view it is also stronger than "believing". It requires the considered judgment of the decision-maker. (4) The decision-maker need not be satisfied beyond reasonable doubt or to the standard required in criminal law. (5) It is unnecessary to import our domestic standards of proof into the question. The circumstances of refugee claims, and the nature of the evidence available, are so variable. However, if the decision-maker is satisfied that it is more likely than not that the applicant has not committed the crimes in question or has not been guilty of acts contrary to the purposes and principles of the United Nations, it is difficult to see how there could be serious reasons for considering that he had done so. The reality is that there are unlikely to be sufficiently serious reasons for considering the applicant to be guilty unless the decision-maker can be satisfied on the balance of probabilities that he is. But the task of the decision-maker is to apply the words of the Convention (and the Directive) in the particular case.
14.3C In AA-R (Iran) v SSHD  EWCA Civ 835, the Court of Appeal explained the effect of the Supreme Court's guidance as being that "It is for the Secretary of State to prove on the balance of probabilities that an individual should be excluded: Al-Sirri." (para 7) In AH (Article 1F(b) - 'serious') Algeria  UKUT 00382 (IAC), the Tribunal confirmed in the Headnote (which is approved by the Reporting Committee) that following Al-Sirri  UKSC 54, "A claimant's personal participation in acts leading to exclusion under Article 1F(b) must be established to the ordinary civil standard of proof." Older authorities may need to be read in the light of the erroneously low standard of proof which was previously understood to be sufficient to establish exclusion. The Home Office's Asylum Instruction on Exclusion: Article 1F of the Refugee Convention, after referring to these cases, states that "In practice, the standard of proof will not be reached unless the decision maker is satisfied that it is more likely than not that the claimant was responsible for the crimes or acts."
14.4 Claims involving exclusion will often be the subject of 'Research and Analysis' reports from the Special Cases Directorate, previously known as the War Crimes Unit. These reports will be appended to decision letters and contain lengthy legal and factual discussions of the arguments in favour of exclusion. Where you need to dispute the factual basis for exclusion, these will require careful analysis. They often quote selectively from background materials without any attempt to assess the reliability of the sources, and may cite material which is not relevant to the period when your client was involved in the organisation concerned. You may need to remind the Tribunal that the Special Cases Directorate report is not in itself evidence, and nor is it an expert report which complies with the Tribunal's practice directions. It should be treated as an extension of the refusal letter, setting out the Home Office's case on the application of the exclusion clauses to the appellant.
14.4A If a report is referred to in the refusal letter but has not been disclosed (as sometimes happens), you should consider whether you want to press the Home Office for disclosure or seek directions from the Tribunal for it to be provided in advance (see Chapter 9). Since the Home Office bear the burden of proof in exclusion cases, it might sometimes be tactically better not to press for such disclosure, although there is still a risk that the Home Office will produce the report at or shortly before the hearing. Similarly, consider whether you need to ask for disclosure of any documents referred to in the report which are not readily available in the public domain (and whether you will want to serve copies of those which are, so that the Tribunal can place any quotations in the Special Cases Directorate report in their proper context). These should have been provided by the Home Office in accordance with rule 24 and if they are not, you may alternatively wish to argue that the Home Office should be assumed no longer to rely on them (see chapter 10).
If a certificate is issued under this section, the asylum/human rights appeal must be heard by SIAC. Appeals to SIAC (which are uncommon) are governed by the Special Immigration Appeals Commission Act 1997 and are outside the scope of this text.
14.5B As well as the text of the Rome Statute itself, and the "Elements of Crimes" which it treats as a primary source of law (both are available on the ICC's website), you will need to consider the jurisprudence of the ICC and of the various ad hoc tribunals established to try international crimes in the context of particular conflicts, notably the International Criminal Tribunals for the former Yugoslavia ('ICTY') and for Rwanda ('ICTR'). You should consult academic texts; in particular there are a number of accessible and authoritative commentaries on the Rome Statute which refer extensively to the jurisprudence of the ad hoc tribunals. In MT (Zimbabwe)  UKUT 00015 (IAC), the Upper Tribunal referred itself to Otto Triffterer (ed), Commentary on the Rome Statute of the International Criminal Court, 2nd ed, 2008 (and in other cases has quoted this as a helpful source); another such commentary is William Schabas, The International Criminal Court: A Commentary on the Rome Statute, OUP, 2016, an earlier edition of which was referred to by the Upper Tribunal in AB (Article 1F(a) – defence - duress) Iran  UKUT 00376 (IAC).
14.5C In JS (Sri Lanka)  UKSC 15, Lord Hope observed that the "critical question [is] whether the evidence provides serious reasons for considering the applicant to have committed the actus reus of an international crime with the requisite mens rea" (para 45). Now that it is apparent that the burden is on the Home Office to establish the claimant's criminal liability on the balance of probabilities, it is all the more important to focus the argument in the appeal upon what criminal liability the Home Office is alleging and whether it can establish the essential elements that are required under international criminal law in order to establish that individual criminal responsibility. That will include negating any available defences. In AB (Article 1F(a) – defence - duress) Iran  UKUT 00376 (IAC), the Upper Tribunal held that there was an evidential burden on the appellant in such cases to raise a ground for excluding criminal responsibility such as duress, but once that evidential burden had been met, the Home Office bore the burden of proving that the appellant had not (in that case) acted under duress.
Article 1F(c) is only triggered in extreme circumstances by activity which attacks the very basis of the international community's co-existence. Such activity must have an international dimension. Crimes capable of affecting international peace, security and peaceful relations between states, as well as serious and sustained violations of human rights would fall under this category.
14.5E Section 54 of the 2006 Act seeks to impose a substantially wider statutory interpretation of the exclusion clause in Article 1F(c). Section 54 came into force on 31 August 2006 but in SSHD v DD (Afghanistan)  EWCA Civ 1407, the Court of Appeal expressed the view that it is "concerned with the decision making process" and applied to acts committed before it came into force (para 60-61). However, in Al Sirri  UKSC 54, the Supreme Court decided that section 54 must be read down where necessary to comply with Article 12(2)(c) of the Qualification Directive and ensure that the interpretation of Article 1F(c) of the Convention is in conformity with the correct interpretation under the Refugee Convention, which has an autonomous international meaning and does not depend on domestic statutory provisions.
(b) acts of encouraging or inducing others to commit, prepare or instigate terrorism (whether or not the acts amount to an actual or inchoate offence).
ii. involves the use of firearms or explosives.
Section 54 does not apply to the criteria for exclusion from Humanitarian Protection which do not refer to Article 1F of the Refugee Convention.
14.6 UK anti-terrorist legislation can create fear and confusion. The Terrorism Act 2000 poses a serious and indeterminate risk to appellants. A large number of organisations are banned under the Act, including armed opposition groups with widespread support in major refugee producing countries and among UK refugee communities. The legislation is on its face of wide scope, criminalising mere membership of proscribed organisations even abroad. One of the most invidious aspects of the legislation is that those who are entitled to asylum as a result of their activities may be frightened into concealing them and thereby exposed to refoulement.
14.7 Section 3 of the Terrorism Act 2000 permits the Home Office to proscribe organisations 'concerned in terrorism', a term which includes promoting and encouraging terrorism. The power was expanded in 2006 to encompass organisations involved in or associated with the 'glorification' of terrorism (see s.3(5A-C) of the 2000 Act). At present, over 70 international terrorist organisations (ie not including Irish organisations) are proscribed under the 2000 Act. The Home Office's view of the relevance of involvement in proscribed organisations when considering exclusion is set out at para 14.25C below.
14.8 Several organisations have been involved in legal challenges to their proscription. Who is, and as importantly, who is not on the list appears to owe as much to the Government's political priorities as a genuine assessment of the world's most violent and least legitimate organisations. Why, for example, was the People's Mojahedin Organisation of Iran banned for its armed opposition to the Iranian regime when the US State Department had declared the Iranian regime the world's number one terrorist sponsor? On 30th November 2007, the Proscribed Organisations Appeal Commission allowed an appeal against its proscription (Lord Alton v SSHD (PC/02/2006)).
14.10 The offences under s.12-13 apply only if the acts were done in the UK but the other offences listed above can be committed even outside the UK. The Terrorism Act 2006 introduces further offences, including one of 'encouragement of terrorism' (s.1) which encompasses 'glorification' of terrorism. In certain circumstances, these offences can also be committed outside the UK.
14.11 The offences of fund-raising (and also money laundering under s.18) apply not only to any assistance to a proscribed organisation, but also to fund-raising for any other organisation if the person intends or has reasonable cause to suspect that the funds are to be used for 'purposes of terrorism'. These are very widely defined in the Act (s.1).
14.12 That definition will include the activities of almost any armed opposition group and may include activities carried out by many organisations who would not reasonably merit the description 'terrorist'. Any involvement in fund-raising or providing funds for any organisation engaged in such activities is criminalised.
40 Finally, is it enough to meet that test that a person plots in one country to destabilise conditions in another? This must depend upon the circumstances of the particular case. It clearly would be enough if the government (or those in control) of one state offered a safe haven to terrorists to plot and carry out their terrorist operations against another state. That is what the Taliban were doing by offering Osama bin Laden and Al-Qaeda a safe haven in Afghanistan at the time. As the UNHCR says, this would have clear implications for inter-state relations. The same may not be true of simply being in one place and doing things which have a result in another. The test is whether the resulting acts have the requisite serious effect upon international peace, security and peaceful relations between states.
14.12B A distinction, however, is drawn by the cases between terrorism and conventional military activity in the context of a civil war which, while technically falling within this definition, cannot in fact be regarded as contrary to the purposes and principles of the United Nations (see KJ (Sri Lanka) v SSHD  EWCA Civ 292, paras 34-40; DD (Afghanistan)  EWCA Civ 1407, para 55; and SS (Libya) v SSHD  EWCA Civ 1547, paras 28-37). However, in DD (Afghanistan), the Court of Appeal held that even conventional military action against forces mandated by the United Nations in the maintenance of international peace and security amounted to acts contrary to the purposes and principles of the United Nations. That conclusion was upheld by the Supreme Court in Al-Sirri  UKSC 54.
14.13 Conviction of an offence in the UK carries an added risk by virtue of s.72 of the 2002 Act. In certain circumstances, this enables the Home Secretary to issue a certificate to the effect that there is a presumption that the appellant has been convicted of a 'particularly serious crime and constitute(s) a danger to the community of the United Kingdom' and so is excluded from protection against refoulement under the Refugee Convention by art. 33(2). It is for the appellant to rebut the presumption (both limbs of which are rebuttable: EN (Serbia) v SSHD  EWCA Civ 630). Unless a certificate has been issued under s.55 of the 2006 Act (in which case, s.55(5) provides that it should be considered before the s.72 certificate), the Tribunal must begin the appeal by considering the certificate and, if the appellant cannot rebut the presumption, must dismiss the asylum appeal. (Although it must still go on to consider the question of whether removal will breach the appellant's ECHR rights).
14.14 It is also an offence for any person who receives information in the course of a trade, profession, business or employment not to disclose to the police any belief or suspicion he forms on the basis of that information that a person has been involved in fund-raising for a proscribed organisation or other terrorist purposes (as defined above). Privileged information obtained by a professional legal adviser is excluded by s.19(5) and s.21A(5) of the Terrorism Act 2000. Section 38B creates a further offence relating to failure to disclose information about acts of terrorism which has no express provision for information protected by legal professional privilege. However, the Law Society's Anti-terrorism practice note (13th January 2016) advises that in the absence of express words overriding legal professional privilege, it continues to apply so that in its view, lawyers remain prohibited from disclosing information about acts of terrorism to which legal professional privilege applies. The Law Society note advises that the defence is unlikely to apply to information which is merely confidential rather than privileged. That defence may not extend to others who receive information which would normally be privileged, such as medical and other experts and interpreters. There is also no obvious reason why it should apply to HOPOs or even judges.
14.15 If your client's organisation has been engaged in armed activities (and particularly if it is proscribed under UK anti-terror legislation), you may find that she has been prevailed upon by previous representatives, interpreters, or community leaders to downplay or lie about the extent of her involvement. She may have been told that she risked being refouled if she reveals her true activities, or that she risks prosecution or indefinite detention without charge under anti-terror legislation.
14.16 You must advise her as to the risks and merits of disclosure. Many clients, once the law has been explained to them, will prefer to minimise the risk of refoulement by disclosing all the matters putting them in danger, despite any risks posed by art 1F and the legislation described above. (You will of course have to explain that while it is ultimately a matter for your client what she chooses to disclose, you cannot continue to represent her if she gives evidence to the court which she has instructed you is false.) As discussed above (para 14.2C), if your client is found credible and to be at risk, Article 3 ECHR will protect her from refoulement even if she is excluded from refugee status or humanitarian protection.
14.17 It is very difficult to advise clients properly on the risks posed by the Terrorism Act. It is not possible or proper to ignore the Act when you are proposing to disclose information which will incriminate your client in respect of a criminal offence carrying a heavy penalty. On the other hand, there have as yet been no known prosecutions based on information provided in asylum/human rights appeals. You must obtain specialised advice for your client if you are not in a position to provide it yourself.
14.17A Do not assume that it is in your client's interests to give any evidence at all. If the Home Office accepts that she would be at risk of ill-treatment on return and therefore cannot be removed without violating Article 3, she may have nothing to gain and everything to lose from giving evidence. The authorities are clear that the burden is on the Home Office to establish her liability to exclusion. If the evidence it relies on is particularly weak or is incapable of satisfying the legal tests for exclusion, she may prefer not to give evidence and simply submit that the Home Office has not satisfied the burden of proof. This course is not without risks: in Al-Sirri (Asylum – Exclusion – Article 1F(c))  UKUT 00448 (IAC), the Upper Tribunal found that the Tribunal had been entitled to find that the appellant's refusal to give evidence damaged his credibility (and that the Home Office had been right to rely on s8 of the 2004 Act) although in the particular circumstances of that case, the damage was modest and the Home Office still did not make its case. In Youssef (Refugee Convention – Article 1F(c))  UKUT 00137 (IAC), the Home Office invited the Upper Tribunal to draw an adverse inference from the appellant's decision not to give evidence to explain the material relied on by the Home Office to justify his exclusion. You will have to advise your client on the risks and benefits of giving, or not giving, evidence, so that she can make an informed decision about whether to do so.
14.18 Where your client does decide to disclose her involvement, you will have to anticipate the likely credibility challenge from the Home Office based on late disclosure.
14.19 If the original advice not to disclose her activities came from someone associated with the armed organisation, your client may well be reluctant to follow the usual advice to give as much detail as possible about the guidance she was given (see para 13.17). In that case, you may wish to make early applications as discussed in chapter 32 so as to seek to reassure her as to the confidentiality of the information.
14.20 Where initial non-disclosure resulted from your client's fears of the consequences of admitting involvement with an armed organisation, it will often be useful to remind the Tribunal of the reasonableness of your client's fears. That is especially so where an armed organisation has recently become more acceptable to western governments. It is surprising how easy (and convenient) it is to forget the condemnation which the organisation previously attracted. For example, if representing someone after NATO occupied Kosovo who had only recently revealed his involvement in armed resistance to the Serb authorities in Kosovo, you would probably have had to remind the Tribunal that while NATO had fought alongside the KLA to oust the Serbs, the KLA had not long previously been stigmatised by western governments as a terrorist organisation.
14.22 Although corroboration will always be useful where credibility is under attack (see chapter 16 on documents and chapter 15 on witnesses), armed organisations do not generally provide documentation, and it may be difficult to persuade witnesses to come forward. In those circumstances, a very detailed statement from the client is the best (and quite possibly the only) means of overcoming the credibility problems created by late disclosure.
14.23 A statement which simply notes that 'Contrary to my earlier account, I have actually been very involved at a very high level in guerrilla operations', provides far less protection against an adverse credibility finding than an account that goes into great, even verging on tedious, detail about her activities. Rather than the above bland sentence, you really do benefit from a blow by blow account: How did she get involved? How did she rise up through the ranks? How did she win sufficient trust to be given such high-level activities? Why was she chosen? How did she have (or gain) the necessary skills? Why did she take the risks? How did she get her instructions? Where did she go? How did she manage to travel? What exactly was her role? Who did she deal with?
14.24 Your client may obviously be unwilling to divulge details of names and places, particularly if her organisation is still involved in armed operations and/or is viewed antagonistically by western governments. However, while your client's initial reaction may be that she cannot reveal anything about her activities, if you talk it through with her, she may decide that she can give a fairly compelling account without divulging any information that would incriminate others. For example, she might be able to explain how a particular operation was carried out, but not the names or locations involved. In fact, a discussion of the former may establish her credibility far more effectively than the provision of names that the Tribunal will have no means of checking. If you do not make an effort to provide this sort of persuasive detail, you may have little else to bring to bear on credibility.
[I]n deciding whether a person's membership of an organisation amounts to complicity in any crimes or acts proscribed by Art 1F, it is of crucial importance to examine the particular circumstances, taking account not only of factors concerning the individual and his specific role in the organisation but also that organisation's place and role in the society in which it operates. The more an organisation makes terrorist acts its modus operandi, the more difficult it will be for a claimant to show his voluntary membership of it does not amount to complicity.
…principally (in no particular order) (i) the nature and (potentially of some importance) the size of the organisation and particularly that part of it with which the asylum-seeker was himself most directly concerned, (ii) whether and, if so, by whom the organisation was proscribed, (iii) how the asylum-seeker came to be recruited, (iv) the length of time he remained in the organisation and what, if any, opportunities he had to leave it, (v) his position, rank, standing and influence in the organisation, (vi) his knowledge of the organisation's war crimes activities, and (vii) his own personal involvement and role in the organisation including particularly whatever contribution he made towards the commission of war crimes.
For a critique of the Home Office's attempt to apply these factors to a case of alleged involvement in the PKK, see R (Polat) v SSHD  EWHC 3445 (Admin), paras 87-102.
...even if the acts committed by an organisation on the [EU common list of terrorist groups] because of its involvement in terrorist acts fall within each of the grounds for exclusion laid down in Article 12(2)(b) and (c) of Directive 2004/83, the mere fact that the person concerned was a member of such an organisation cannot automatically mean that that person must be excluded from refugee status pursuant to those provisions (para 88).
In AH (Algeria) v SSHD  EWCA Civ 395, the Court of Appeal held that the appellant's conviction in France for an offence committed by being a knowing part of a criminal conspiracy or grouping formed with a view to committing terrorist acts was not a sufficient basis to find that s. 54(1) applied to him in the absence of any evidence of actual instigation, encouragement or inducement of terrorist acts (para 23). The fact that the appellant was a member of an organisation whose sole purpose was the commission of terrorist acts was only one of the relevant factors (para 17). Accordingly the French conviction was not in itself sufficient to exclude the appellant under Art 1F(b) or (c) and the case was remitted to the Upper Tribunal. However, on remittal, the Upper Tribunal subsequently found that the appellant's activities, which formed the basis for the conviction, were a sufficient basis for exclusion under Article 1F(c) and that finding was upheld by the Court of Appeal following a further appeal by the appellant:  EWCA Civ 1003.
The Upper Tribunal reached a similar conclusion in Youssef (Refugee Convention – Article 1F(c))  UKUT 00137 (IAC), holding that the Home Office was entitled to find that Mr Youssef was excluded from refugee status despite the lack of any evidence of any actual acts contrary to the purposes and principles of the United Nations having been committed or attempted. An appeal against this decision was heard by the Court of Appeal in January 2018 and judgment was awaited at the time of writing.
Terrorist groups or other proscribed organisations are listed on the GOV.UK website and in Schedule 2 to the Terrorism Act 2000, (as amended).
Decision makers must take these factors into account when making a decision on whether members of a proscribed organisation fall within Article 1F(b) or (c) and must consider exclusion particularly carefully where there is evidence that an individual has been convicted of an offence under section 11 of the Terrorism Act 2000 (belonging, or professing to belong, to a proscribed organisation).
However, the LTTE, during the period when KJ was a member, was not such an organisation. It pursued its political ends in part by acts of terrorism and in part by military action directed against the armed forces of the government of Sri Lanka. The application of art 1F(c) is less straightforward in such a case. A person may join such an organisation, because he agrees with its political objectives, and be willing to participate in its military actions, but may not agree with and may not be willing to participate in its terrorist activities. Of course, the higher up in the organisation a person is the more likely will be the inference that he agrees with and promotes all of its activities, including its terrorism. But it seems to me that a foot soldier in such an organisation, who has not participated in acts of terrorism, and in particular has not participated in the murder or attempted murder of civilians, has not been guilty of acts contrary to the purposes and principles of the United Nations. (paragraph 38).
Children are not exempt from the exclusion clauses. However, it is important that (the SSHD) carefully consider the specific context of each case, for example the child's age and maturity, when considering how far the individual should be deemed liable for their actions. It is always important to treat each case on its own merit. Personal circumstances, such as age or psychological functioning, may be relevant when investigating the level of knowledge a person had of what they were participating in as well as the child's ability or power to take alternative action.

matches:
art.1
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art 1
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art 1
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Art 1
Art 12
Art 1
Art 1
Art 1
EWCA
EWCA
UKSC
UKSC
EWCA
UKSC
EWCA
EWCA
EWCA
UKSC
art. 33
EWCA
art 1
Art 1
EWCA
Art 1
EWCA
art 1


In 2016, the Supreme Court held that an “article of manufacture” under the law covering damages for infringement of a design patent could encompass either the entire finished product or a discrete component of the product. This distinction has had major implications on the amount of damages awarded to a design patent owner. In Microsoft Corp. v Corel Corp. a District Court ruled that Microsoft was not precluded from disgorgement damages under Section 289 because the infringing article of manufacture is a software product. Microsoft Corp. v Corel Corp., 2018 WL 2183268 at *4 [ND Cal May 11, 2018]. This article highlights what constitutes a design patent and the potential for monetary damages awards for design patent infringement.
In 2011 Apple sued Samsung alleging that several of Samsung’s smartphones infringed three of Apple’s design patents covering the phone’s front surfaces and screen icon grid. A jury found that a number of Samsung’s smartphones infringed Apple’s patents and awarded $399 million in damages. This was the entire profit of Samsung’s sales of their infringing smartphones, rather than a portion representing only the features covered by the design patents. The U.S. Court of Appeals for the Federal Circuit affirmed the damages award, and rejected Samsung’s argument “that the profits awarded should have been limited to the infringing ‘article of manufacture’” (the screen or case of the phone, not the whole smartphone).
Design patents can be a valuable tool for a patent holder and should be considered when protecting a new product. Section 289 of the Patent Act may potentially provide a significant higher damage award than what is available under Section 284 for an infringement of a design patent. When drafting a design patent application, a patent filer needs to consider the above four factors to be able to properly protect and enforce a patented design.
The U.S. Supreme Court recently upheld a lost profits award of $93.4 million in a patent infringement suit, finding that profits lost by a patent owner outside the United States are recoverable in a patent infringement suit in the U.S.
The case, WesternGeco LLC v. ION Geophysical, 138 S Ct 2129, 201 L Ed 2d 584 , involves competitors in the field of ocean floor surveying systems.
There is a presumption against the extraterritorial effect of U.S. laws. When dealing with questions of extraterritoriality, the Supreme Court in RJR Nabisco, Inc. v. European Community, 136 S.Ct. 2090, 195 L.Ed.2d 476 (2016) established a two-step test. The first step asks “whether the presumption against extraterritoriality has been rebutted.” Id. at 2101. If the presumption against extraterritoriality has not been rebutted, the second step asks “whether the case involves a domestic application of the statute.” Id. To make this determination it is necessary to identify the statute’s focus,”and whether the conduct relevant to that focus occurred in the U.S. If it did, that would allow a permissible domestic application of the statute. WesternGeco at 2136.
In a 7 to 2 decision, Justice Thomas, writing for the majority, held that WesternGeco’s damages award for lost profits was a permissible domestic application of § 284. Id. at 2139.
The Court addressed step two of the extraterritorial test first and held that § 284 provides a general remedy for patent infringement. The focus of § 284 is determined by the type of infringement that occurred. The Court considered § 271(f)(2), the basis of WesternGeco’s infringement claim and the lost-profits damages that the jury awarded. The focus of § 271(f)(2) is on domestic conduct and states a “company shall be liable as an infringer if it supplies certain components of a patented invention in or from the United States with the intent that they will be combined outside of the United States in a manner that would infringe the patent if such combination occurred within the United States.” Id. at 2137 – 2138 (internal quotes omitted).
The Court ultimately determined that § 284, in a case involving infringement under § 271(f)(2), addresses the act of exporting components of a patented invention from the United States. In the present case, ION exported components that infringed WesternGeco’s patents from the United States. Taking § 271(f)(2) and § 284 together, a patent owner can recover for lost foreign profits because under § 284, “damages are adequate to compensate for infringement when they place the patent owner in as good a position as he would have been in if the patent had not been infringed.” Id. at 2139 (citing General Motors Corp. v. Devex Corp., 461 U.S. 648, 655, 103 S.Ct. 2058, 76 L.Ed.2d 211 (1983), internal quotes omitted). Hence, damages awarded to WesternGeco can include lost foreign profits under a domestic application of § 284. Id.
Justice Gorsuch joined by Justice Breyer dissented. The dissent disagreed with the majority that the Patent Act permitted WesternGeco’s claim for lost profits because a U.S. patent provides a lawful monopoly on the manufacture, use and sale of an invention in the U.S. whereas WesternGeco’s lost profits were derived from uses outside of the U.S. According to the dissent, the effect of WesternGeco’s lost profit is that WesternGeco can charge monopoly rates abroad based on a U.S. patent that has no legal force abroad. To allow this would permit patent owners to use American courts to extend their monopolies to foreign markets. Justice Gorsuch’s concern is that other countries would use their patent laws and courts to assert control over the U.S. economy. Id.
The takeaway from this decision is that the focus of the Patent Act’s damages section, § 284, in a case involving infringement under § 271(f)(2) is on the act of supplying/exporting components of a patented invention from the U.S. If those components are combined outside of the United States in a manner that would infringe the patent if such combination occurred within the United States then a patent owner can recover lost foreign profits as a permissible domestic application of § 284. On January 11. 2019, the Federal Circuit remanded the case back to the district court to decide whether to hold a new trial to determine if WesternGeco can recover from ION $93.4 million in lost profits.
The Second Circuit recently affirmed a lower court ruling that an online marketplace purporting to allow legal resale of digital music files in fact infringed the plaintiff record companies’ exclusive right to reproduce their copyrighted works.
The founders and operators of ReDigi Inc. (“ReDigi”) contended that their service allowed consumers to sell digital music files purchased on iTunes (or from another ReDigi user) without committing copyright infringement. Users installed Redigi’s Media Manager, a scanning and monitoring program to identify music files eligible for resale, and had the option to upload those files into a “Cloud Locker.” The central innovation of ReDigi was the method by which the files were transferred. The files were broken up into a series of “packets”, which were delivered individually (and deleted as they were delivered) and then reassembled at their destination. At the end of the upload process, the file existed in the Cloud Locker and not on the user’s computer.–Similarly, if a music file was purchased from a user’s Cloud Locker by another user, that file would be transferred packet-by-packet and, at the end of the process, would exist on the purchaser’s computer and not in the Cloud Locker. The effect of this packet-transfer system, ReDigi claimed, was that only one full copy of a given music file existed at any time and the transfer complied with copyright law.
ReDigi argued that sales of digital music files using its service was protected under the Copyright Act’s first sale doctrine, which entitles the owner of “a particular copy or phonorecord” purchased from or otherwise authorized by the copyright holder to sell or otherwise dispose of that particular copy or phonorecord without the copyright holder’s authorization. However, the Second Circuit, in affirming the Southern District of New York’s holding, found that ReDigi’s packet-transfer system, by its very nature, creates an unauthorized reproduction of a given digital music file and violates copyright holders’ exclusive right to reproduction. The first sale doctrine, the Court noted, only establishes when a copyright holder’s distribution right of a particular copy of a copyrighted work terminates, that is, once it is sold to the consumer. Digital music files are phonorecords, that is, a material object in which sound is fixed. When a user uploads a digital music file to its ReDigi “Cloud Locker”, or when it is transferred from the “Cloud Locker” to a purchaser’s computer, that sound is fixed in a new material object for a sufficient amount of time to create a new phonorecord. Each time a new phonorecord is made constitutes a violation of the copyright holder’s exclusive right to reproduction under the Copyright Act, and the separate distribution right is not implicated. The Second Circuit was not persuaded that the “packet transfer” method, or ReDigi requiring deletion of the file from a user’s computer once it was uploaded, negated the fact that an unauthorized copy was made.
Turning to ReDigi’s affirmative defense of fair use, the Second Circuit held that ReDigi’s operation did not constitute fair use of the copyrighted music files. The Copyright Act shields from liability those making “fair use” of a copyrighted work and lists a number of factors for courts to consider, including the (1) the purpose and nature of the use, including whether the use is for commercial or nonprofit purposes and whether the use is transformative in some way; (2) the nature of the copyrighted work; (3) the portion of the copyrighted work used; and (4) the effect of the use on the potential market for or value of the copyrighted work. Of particular importance to the Second Circuit was the fact that ReDigi’s use was for commercial purpose and was in no way transformative; that its operation necessitates copying of the entire works, and the fact that ReDigi’s resale market directly competes with the primary market (i.e., digital music marketplaces such as iTunes).
The ReDigi litigation has raised philosophical questions about how copyright law, and in particular the right of reproduction and the first sale doctrine, should be adapted in an increasingly digital world, but the Second Circuit, while acknowledging those questions, issued a limited ruling, relying on the specific wording of the Copyright Act.
In a case that highlights the level of creativity required for copyright protection, the U.S. District for the Northern District of Illinois held that a company that sells bonds may have valid copyrights in documents relating to offering those bonds.
Plaintiff UIRC-GAS Holdings, Inc. sells bonds to finance the purchase and operation of property leased to the federal government. UIRC created forms related to the offering of those bonds (“UIRC Forms”) and obtained federal copyright registrations for these works from the U.S. Copyright Office. Defendant William Blair & Company, LLC, an investment banking firm, acted as the placement agent for UIRC and used the UIRC Forms for some of those bond offerings. Blair also assisted Rainier, a competitor of plaintiff, with a similarly-structured bond offering. UIRC sued Rainier for copyright infringement of the URIC Forms and subsequently settled. Then, plaintiff sued Blair and a former employee of Blair, alleging copyright infringement of the same URIC Forms.
Blair moved to dismiss UIRC’s claims related to the content of the URIC Forms, claiming that some of the definitions contained therein were sentence fragments and definitions that are “driven entirely by utilitarian considerations” based on the structure of the bond and are therefore not eligible for copyright protection. Blair argued that the plaintiff was trying to own a concept for the type of bond offering. Blair also claimed that descriptions of the U.S. government’s leasing structure, necessary to the type of transaction covered by the URIC Forms, are not protectable under copyright law because they are simply facts about the transaction.
To survive a motion to dismiss, a plaintiff only needs to show that its complaint contains enough facts to state a plausible claim. Blair argued that UIRC did not do this because the URIC Forms did not possess the minimal level of creativity necessary for copyright protection. The court, however, held that UIRC had at least included sufficient facts and assertions in its complaint to allege viable copyright rights in the UIRC Forms and to support a viable claim for copyright infringement of those rights.
The case highlights a critical dichotomy in copyright law, that copyright law protects the expression of an idea, not the idea itself. For example, copyright protection is not available for the idea of a fictional detective character. On the other hand, copyright law protects movies and books expressing the story of such a detective. Further, a copyrighted work must contain a minimal level of creativity for that expression to be eligible for protection under the copyright laws.
Here, Blair claimed that the UIRC Forms, by their nature, had to describe the underlying concept of government leases, which are non-protectable facts. Blair argued that UIRC was the first to offer this type of bond, and that, by claiming copyright protection in the UIRC Forms, UIRC actually is trying to monopolize the market for this type of transaction. Blair claimed that there was no other way to express the underlying idea of the bond, and that UIRC’s complaint did not even claim the minimal level of creativity in the content of the UIRC Forms necessary for copyright protection. The court disagreed, holding that the terms and definitions in the UIRC Forms contained at least a minimal level of creativity in expressing the leasing structure.
Although a contract or other legal document can be copyrightable, such documents frequently contain relatively common terms and language, so that it may be difficult to prove that the document, or portions thereof, was an original creative work. This case seems to differ because the type of transaction is new, and UIRC apparently created the documents specific to the purpose of effectuating the sale of these bonds.
Following this motion to dismiss, the case will now go forward. We will monitor this case for a decision on whether UIRC’s bond documents are original works entitled to copyright and whether Blair copied a copyrighted work of UIRC. Subsequent decisions in this case may have a lasting impact on the scope of copyright protection for transactional documents and forms in the future.
The United States Supreme Court will soon hear arguments in a case that may significantly alter the face of trademark law for the second time in less than two years.
The case, Andrei Iancu, Under Secretary of Commerce for Intellectual Property and Director, Patent and Trademark Office v. Erik Brunetti, addresses a portion of Section 2(a) of the Lanham Act which authorizes the U.S. Patent and Trademark Office (“USPTO”) to refuse registration of “immoral . . or scandalous” marks.
Many will recall the repercussions of the 2017 Supreme Court case, Matal v. Tam, which found a section of the statute allowing the USPTO to refuse trademark registration for “disparaging” marks (Section 2(a) of the Lanham Act) to be an unconstitutional violation of the First Amendment. Although that particular case addressed the USPTO’s refusal to register the mark “The Slants” by members of a rock band (who are Asian-American) by the same name, the fallout from that decision famously brought to a close the long-standing battle between the Washington Redskins and the USPTO by removing the statutory ban on registration for the term REDSKINS.
In sum, the government’s position in the current case is that “immoral” and/or “scandalous” marks can be treated differently than “disparaging” marks and the Slants decision is not conclusive of whether the statutory ban on “immoral” and/or “scandalous” marks is facially unconstitutional. Brunetti argues that the same principles of free speech that led to the removal of the ban on “disparaging” marks should likewise apply to “immoral” and/or “scandalous” marks. That is the question now before the Supreme Court.
If the U.S. loses the appeal, the long-standing ban on registration of “immoral” and/or “scandalous” marks will be lifted, and a flood of trademark applications to register sexually explicit, vulgar and profane marks will likely follow. Trademark owners should be aware that a backlog of the examination of pending trademarks is likely while the USPTO deals with this influx. The decision may open the door for trademark owners with arguably “immoral,” “scandalous” or “vulgar” marks to finally enjoy the full benefits of a federal trademark registration and enhance their ability to protect their brands.


For over fifty years, the BBC has been chronicling the exploits of that ultimate learned intermediary, Dr. Who. Over the decades, successive Doctors have crossed swords (or sonic screwdrivers) with a wide variety of enemies, from the Master, through Daleks, Cybermen, Zygons, and Mara. But for us, there is no more terrifying foe than the Vashta Nerada. In the episodes “Silence in the Library” and “Forest of the Dead,” these microscopic piranha of the air lurk in the shadows until swarming around their next victim, whom they reduce to skeletal leftovers in seconds. Shortly before the end, those selected for consumption by the Vashta Nerada take on an unusual characteristic – they have two shadows.
Which is similar to how we see Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) (“Lohr”). We think that decision is close to the end – in Gallifreyan terms, it has two shadows.
Bexis still remembers when Lohr came down, like it was yesterday. Just a few months before, in the Bone Screw litigation (involving Class II devices), the defendants had won an order holding that probably 85% of the plaintiffs’ allegations were preempted. See In re Orthopedic Bone Screw Products Liability Litigation, 1996 WL 221784 (E.D. Pa. April 8, 1996) (interestingly, this decision doesn’t have a red flag, although it should). Bexis had also written an amicus curiae brief in Lohr that articulated the defense position on negligence per se issues (available at 1996 WL 109632). Lohr said good-bye to all that. The section of Lohr concerning what has become the so-called “parallel claims” exception to preemption was 9-0 (in other words, Bexis got skunked). The rest of Lohr, concerning preemption of design and warning claims, was ostensibly 5-4, although Justice Breyer’s concurrence (necessary to make a majority) wasn’t exactly on all fours as to the reasoning.
It’s been over 20 years since Lohr, and that decision hasn’t aged well. We discuss why in this post.
Before a new Class III device may be introduced to the market, the manufacturer must provide the FDA with a “reasonable assurance” that the device is both safe and effective. See 21 U.S.C. § 360e(d)(2). Despite its relatively innocuous phrasing, the process of establishing this “reasonable assurance,” which is known as the “premarket approval,” or “PMA” process, is a rigorous one. Manufacturers must submit detailed information regarding the safety and efficacy of their devices, which the FDA then reviews.
Id. at 477 (emphasis added).
By contrast, “substantial equivalence” clearance for marketing and labeling did not (according to the lead Lohr opinion) impose the same standard as PMA. Section 510(k) – codified as 21 U.S.C. §360(k) and following the FDA procedure detailed in §360c(i) – was viewed as a “grandfathering provision which allows pre-1976 devices to remain on the market without FDA approval.” Lohr, 518 U.S. at 478. It “permits devices that are ‘substantially equivalent’ to pre-existing devices to avoid the PMA process.” Id. A majority in Lohr held that “[t]he § 510(k) notification process is by no means comparable to the PMA process.” Id. at 475-79.
In all pre-emption cases, and particularly in those in which Congress has legislated in a field which the States have traditionally occupied, . . . we use a “presumption against the pre-emption of state police power regulations” to support a narrow interpretation of such an express command.
Id. (citations and quotation marks omitted) (emphasis added). The second presumption was even more extra-textual – that the Court looks “not only in the [statutory] text,” but also to “the structure and purpose of the statute as a whole” in evaluating congressional “purpose.” Id. at 485-86.
By then, it was clear where Lohr was going. The majority construed the language of §360k(a) “narrowly,” and when that was not enough, it looked to its gestalt conception of the overall purpose of the FDCA, again in preference to the language Congress actually drafted in §360k(a).
“[R]equirement,” as used in §360k(a) should not be given “its widest reasonable meaning” because of the potentially “broad” “scope of the preclusion that would occur.” Id. at 488-89. Instead, the lead Lohr opinion held that preemption “was primarily concerned with the problem of specific, conflicting state statutes and regulations rather than the general duties enforced by common-law actions.” Id. at 489. This result could be inferred from silence in the legislative history. Id. at 491.
Nothing in the “the statutory scheme or the legislative history” – in other words, still more silence – suggested that §510(k) “was intended to do anything other than maintain the status quo,” which included “common-law tort suits,” so the express preemption language could not be taken “literal[ly].” Id. at 494-95.
A parallel violation claim can “be ‘different from’ the [FDA] rules in a literal sense,” but still escape preemption because it is “narrower” than an FDA requirement, “not broader,” by adding a requirement of negligence. Id. at 495.
“The presence of a damages remedy does not amount to the additional or different ‘requirement’ that is necessary under the statute; rather, it merely provides another reason for manufacturers to comply” with FDA requirements. Id.
An FDA regulation, 21 C.F.R. §808.1(d), “interpret[ed] the scope of § 360k’s pre-emptive effect,” and disclaimed preemption of “general” state-law requirements, requiring instead “specific counterpart regulations. Id. at 496-97. Lohr gave that regulation “substantial weight” in its preemption analysis. Id. at 496.
“[P]re-emption [can] occur only where a particular state requirement threatens to interfere with a specific federal interest. State requirements must be ‘with respect to’ medical devices and ‘different from, or in addition to,’ federal requirements.” Id. at 500.
FDA “regulations provide that state requirements of ‘general applicability’ are not pre-empted except where they have ‘the effect of establishing a substantive requirement for a specific device.’ Moreover, federal requirements must be ‘applicable to the device’ in question, and, according to the regulations, pre-empt state law only if they are ‘specific counterpart regulations’ or ‘specific’ to a “particular device.’” Id.
As to the particular tort claims brought by the plaintiffs in Lohr, the lead opinion further discounted the scope of the substantial equivalence in §510(k), holding that “[t]he 510(k) process is focused on equivalence, not safety,” and “provide[s] little protection to the public.” Id. at 493 (citation and quotation marks omitted) (emphasis original). Lohr took the position that this process “did nothing more than compare one device to another, already marketed device, requiring only compliance with ‘general standards,’ the lowest level of protection.” Id.
Further, substantial equivalence review “did not ‘require’” the design of the product “to take any particular form for any particular reason.” Id. at 493. Nor were any “labeling and manufacturing requirements” of §510(k) “‘applicable to the device’ in question” because they were “entirely generic” and were “applicable to a host of different devices.” Id. at 498-99 (once again relying on 21 C.F.R. §808.1(d)). “General” state-law product liability claims “are no more a threat to federal requirements than” “fire prevention requirements” or “zoning codes.” Id. at 501.
Therefore, “few, if any, common-law duties have been pre-empted by this statute.” Id. at 502. Even then, to find preemption would “require a careful comparison between the allegedly pre-empting federal requirement and the allegedly pre-empted state requirement.” Id. at 500.
From the outset uncertainty reigned as to Lohr. Four justices dissented from the entire rationale that departed from the text of §360k(a), and from the ensuing result, except as to design and violation claims. Lohr, 518 U.S. at 509, 513 (dissenting opinion). Justice Breyer’s concurring opinion, necessary to make a majority as to most parts of the opinion, expressly disagreed “that future incidents of MDA pre-emption of common-law claims will be ‘few’ or ‘rare.’” Id. at 508. Justice Breyer based his result largely on the FDA’s regulation restricting the scope of the statute’s preemptive effect. Id. at 505-06.
(A) the device . . . (ii) is substantially equivalent to another device within such type. . . .
(2)(A)(i) Any person who submits a report under section 360(k) [that’s §510k] for a type of device. . . .
(v) . . . may recommend . . . classification in class II, include in the request an initial draft proposal for applicable special controls . . . that are necessary, in conjunction with general controls, to provide reasonable assurance of safety and effectiveness and a description of how the special controls provide such assurance. Any such request shall describe the device and provide detailed information and reasons for the recommended classification.
(Emphasis original). Thus, the SMDA extended to §510(k) substantial equivalence the same “reasonable assurance of safety and effectiveness” standard that Lohr described as “rigorous” in connection with premarket approval. 518 U.S. at 477.
A device which cannot be classified as a class I device because the general controls by themselves are insufficient to provide reasonable assurance of the safety and effectiveness of the device, and for which there is sufficient information to establish special controls to provide such assurance, including the promulgation of performance standards, postmarket surveillance, patient registries, development and dissemination of guidelines . . ., recommendations, and other appropriate actions as the Secretary deems necessary to provide such assurance. For a device that is purported or represented to be for a use in supporting or sustaining human life, the Secretary shall examine and identify the special controls, if any, that are necessary to provide adequate assurance of safety and effectiveness and describe how such controls provide such assurance.
21 U.S.C. §360c(a)(1)(B) (emphasis added).
Any “different technological characteristics” in a device “demonstrate[ed]” to be “as safe and effective as a legally marketed device,” by “appropriate clinical or scientific data if deemed necessary by the Secretary” “do not raise different questions of safety and effectiveness than the predicate device.” §360c(i)(1)(A)(ii).
“[A] submission under section 360(k) of this title . . . shall provide an adequate summary of any information respecting safety and effectiveness.” §360c(i)(3)(A).
See generally Hall & Mercer, Rethinking Lohr: Does “SE” Mean Safe and Effective, Substantially Equivalent, or Both?, 13 MINN. J.L. SCI. & TECH. 737, 747-50 (2012) (discussing SMDA).
The Supreme Court began receding from Lohr in Buckman Co. v. Plaintiffs Legal Committee, 531 U.S. 341 (2001), albeit under an implied preemption rationale. Buckman also involved §510(k)-cleared devices, as to which the FDA is “empowered to require additional necessary information” to facilitate the agency’s substantial equivalence determinations. Id. at 348 (citing 21 C.F.R. §870.87(l)). In Buckman a unanimous Court limited Lohr on two fronts. First, the Lohr presumption against preemption was avoided because the “dealings with the FDA,” that were central to the plaintiffs’ fraud and violation claims were “inherently federal in character,” so that “no presumption against pre-emption obtains.” Id. at 348. Second, Buckman used implied preemption to prune the Lohr’s parallel violation claim rationale considerably. Another provision of the FDCA, that Lohr’s gestalt analysis of FDCA purpose had somehow overlooked, established the express intent of Congress to preclude private enforcement of the FDCA by plaintiffs alleging violation claims. “[W]e have clear evidence that Congress intended that the MDA be enforced exclusively by the Federal Government. 21 U.S.C. § 337(a).” Id. at 352.
[T]he [Lohr] claims arose from the manufacturer’s alleged failure to use reasonable care in the production of the product, not solely from the violation of FDCA requirements. In the present case, however, the fraud claims exist solely by virtue of the FDCA disclosure requirements. Thus, although [Lohr] can be read to allow certain state-law causes of actions that parallel federal safety requirements, it does not and cannot stand for the proposition that any violation of the FDCA will support a state-law claim. . . . “[F]raud-on-the-agency claims . . . would not be relying on traditional state tort law [but] . . . [o]n the contrary, the existence of these federal enactments is a critical element in their case.
Id. at 352-53 (emphasis added). Thus, violation claims can’t be “solely” based on FDCA infractions, but must “parallel” existing state tort law. Preemption precludes purported state-law claims that depend on a “federal enactment” as a “critical element” of a private plaintiff’s case.
The Court returned to express preemption in Riegel v. Medtronic, Inc., 552 U.S. 312 (2008). Further undercutting Lohr, a 7-2 majority dispensed with any presumption against preemption (only the dissent mentioned it, id. at 334). Riegel viewed Lohr as “disclaim[ing] a conclusion that general federal requirements could never pre-empt” and holding only “that no pre-emption occurred in the case at hand based on a careful comparison between the state and federal duties at issue.” Id. at 322. The majority in Riegel thus converted what Lohr had observed about the “rigor” of FDA premarket review into a preemptive holding. The FDA “grants premarket approval only if it finds there is a ‘reasonable assurance’ of the device’s ‘safety and effectiveness.’” Id. at 318.
[P]remarket approval is specific to individual devices. And it is in no sense an exemption from federal safety review − it is federal safety review. Thus, the attributes that Lohr found lacking in §510(k) review are present here. . . . [P]remarket approval is focused on safety, not equivalence. While devices that enter the market through §510(k) have “never been formally reviewed under the MDA for safety or efficacy,” the FDA may grant premarket approval only after it determines that a device offers a reasonable assurance of safety and effectiveness, §360e(d). And while the FDA does not “‘require’” that a device allowed to enter the market as a substantial equivalent “take any particular form for any particular reason,” the FDA requires a device that has received premarket approval to be made with almost no deviations from the specifications in its approval application, for the reason that the FDA has determined that the approved form provides a reasonable assurance of safety and effectiveness.
Id. at 323 (Lohr citations omitted) (most emphasis added).
[Plaintiffs’] reading of §808.1(d)(1), however, would allow a claim for tortious mislabeling to escape pre-emption so long as such a claim could also be brought against objects other than medical devices. All in all, we think that §808.1(d)(1) can add nothing to our analysis but confusion.
Id. That was a 180° reversal of Lohr. More would follow.
[A]s we have explained, this is exactly what a pre-emption clause for medical devices does by its terms. The operation of a law enacted by Congress need not be seconded by a committee report on pain of judicial nullification.
Id. at 326 (rejecting Lohr rationale). Even though the FDA in Riegel supported preemption, the majority “found it unnecessary to rely upon that agency view because we think [§360k(a)] itself speaks clearly to the point at issue.” Id. So much for all the ambiguity that Lohr professed to find in the same language.
Finally, Riegel declined to decide anything concerning parallel violation claims, because that issue was waived. Id. at 330 (plaintiffs “made no such contention in their briefs before the Second Circuit, nor did they raise this argument in their petition for certiorari”). However, Riegel included some dictum in the paragraph about waiver – “§360k does not prevent a State from providing a damages remedy for claims premised on a violation of FDA regulations; the state duties in such a case ‘parallel,’ rather than add to, federal requirements,” id. – that has been universally converted by the lower courts (probably to the surprise and chagrin of the Riegel majority) into an endorsement of the concept of “parallel claims,” something that the Riegel Court in fact declined to decide.
“While agencies have no special authority to pronounce on pre-emption absent delegation by Congress, they do have a unique understanding of the statutes they administer” Id. at 576-77 (citing Lohr).
[T]he Court has performed its own conflict determination, relying on the substance of state and federal law and not on agency proclamations of pre-emption.
Id. at 576. Otherwise, the majority in Levine evidently did not think that Lohr was particularly relevant to any substantive preemption points, and to that extent we agree.
Although we defer to the [FDA’s] interpretation of its regulations, we do not defer to an agency’s ultimate conclusion about whether state law should be pre-empted.
Id. at 613 n.3 (citing Levine, 555 U.S. at 576).
[I]t is not this Court’s task to decide whether the statutory scheme established by Congress is unusual or even bizarre. . . . We will not distort the Supremacy Clause in order to create similar pre-emption across a dissimilar statutory scheme. As always, Congress and the FDA retain the authority to change the law and regulations if they so desire.
Id. at 625-26 (citation and quotation marks omitted).
Congress “[e]xercis[ed] its authority under the Supremacy Clause” in enacting 21 U.S.C. §360k(a). Caplinger, 784 F.3d at 1336.
“Section 360k(a) preempts ‘any requirement’ imposed by states on manufacturers that differs from or adds to those found in the FDCA. Given this expansive language one might be forgiven for thinking all private state law tort suits are foreclosed.” Id. at 1337.
Since Lohr, judges have “struggle[d]” to make sense of medical device preemption, since The Supreme Court’s “divergent views” about §360k(a) have “yielded considerable ‘uncertainty’ among the lower courts.” Id. at 1337-38.
The “damages remedy” that Lohr found not “different from” FDCA requirements is “nowhere provided for in federal law.” Id. at 1338.
Lohr’s parallel claims analysis “doesn’t appear in the statute, so its meaning was left entirely to judicial exposition.” Id.
“Now, you might ask, why isn’t a narrower state law requirement at least ‘different from’ a broader federal requirement − and thus preempted by §360k(a)’s express terms? The Lohr majority acknowledged that a state duty imposing a ‘narrower requirement’ is indeed ‘different from’ the federal rules in a literal sense.’ And when it comes to interpreting the text of a statute, that’s often the sense that matters most.” Id.
“[A]gain read literally, it would seem ‘any’ federal requirement imposed by the FDCA is capable of preempting any different or additional state requirement. But again the Lohr majority held otherwise,” and instead required a “regulation ‘specific’ to a ‘particular device.’” Id. at 1339.
Despite the “clear” language of 21 U.S.C. §337(a), “lower courts must now accept . . . the notion that §360k(a) permits private tort suits that do no more than parallel the MDA.” Id.
All three subsequent Supreme Court decisions – Buckman, Riegel, and Levine – “cut back on the scope of [Lohr’s] initial decision” and “retreated from” Lohr’s rationale. Id. at 1339-40.
“It’s no small mystery why the same word – ‘any’ − should bear such different meanings in two such similar clauses that lie cheek by jowl in the same statutory subsection.” Id. at 1340.
“[W]e may find the state law claim preempted only if there exists a device-specific federal requirement, though this test admittedly finds no analogue when it comes to the state requirement clause interpreted in Riegel.” Id.
Section 360k(a) “specifies its preemptive reach plainly and broadly: any state requirement that adds to federal requirements and that relates to the safety or effectiveness of the device is preempted. No other qualification exists.” Id. at 1345.
“[I]t is not for this court to revise [§360k(a)] by beating a new path around preemption nowhere authorized in the text of the statute.” Id. at 1347.
Not just pre-market approval, but “something like it,” should have preemptive effect. Id. at 1339.
Thus, with respect to Lohr, Judge Gorsuch couldn’t “help but wonder if perhaps some of those rules warrant revisiting and reconciliation.” Caplinger, 784 F.3d at 1340. We think that’s a great idea – the sooner the better.
The plain text of the [preemption clause] begins and ends our analysis. . . . And because the statute contains an express pre-emption clause, we do not invoke any presumption against pre-emption but instead focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.
Puerto Rico v. Franklin California Tax-Free Trust, ___ U.S. ___, 136 S. Ct. 1938, 1946 (2016) (“Franklin”). Accord Watson v. Air Methods Corp., 870 F.3d 812, 817 (8th Cir. 2017) (following Franklin and rejecting presumption against preemption in express preemption case); EagleMed LLC v. Cox, 868 F.3d 893, 903, (10th Cir. 2017) (same); Atay v. Cty. of Maui, 842 F.3d 688, 699 (9th Cir. 2016) (same); Conklin v. Medtronic, Inc., ___ P.3d ___, 2017 WL 4682107, at *2 (Ariz. App. Oct. 19, 2017) (under Franklin courts may not invoke a presumption against preemption in PMA preemption cases); Olmstead v. Bayer Corp., 2017 WL 3498696, at *3 n.2 (N.D.N.Y. Aug. 15, 2017) (plaintiff’s assertion of presumption against preemption in PMA preemption case held “frivolous” after Franklin).
That turned out the lights on Lohr.
While “approval application (PMA) . . . and 510(k)) differ in various ways, they all . . . enable FDA to ensure that devices on the market are ones that have been determined by FDA to have a reasonable assurance of safety and effectiveness.” Id. at 40.
“Congress . . . required FDA to evaluate whether a new device is as safe and effective as a predicate device.” Id. at 44 n.137 (specifically discussing SMDA).
Under §510(k), “[c]lassification determinations must be based on an evaluation of the safety and effectiveness of the device.” Id. at 41.
“Class II devices are devices for which general controls, by themselves, are insufficient to provide reasonable assurance of the safety and effectiveness of the device, and for which there is sufficient information to establish special controls necessary to provide such assurance.” Id. at 41 n.122.
“During the 510(k) review, FDA considers the device’s safety and effectiveness in its substantial equivalence determination.” Id. at 43.
[T]he 510(k) . . . review process reflects a determination of the level of control necessary to provide a ‘reasonable assurance of safety and effectiveness.’” Id. at 44-45.
While the FDA’s 2017 public position on the nature of §510(k) clearance should be quite sufficient, since the SMDA was enacted in 1990 the FDA has issued a variety of other documents that contain similar statements. For instance, in the currently posted discussion of “Regulatory Controls” on the FDA’s website, the description of “special controls” for “class II devices” makes clear that: (1) “[s]pecial controls are regulatory requirements,” and (2) “Special controls are usually device-specific.” The FDA’s “design control” regulation, 21 C.F.R. §820.30(a)(1), provides that, “[e]ach manufacturer of any . . . class II device . . . shall establish and maintain procedures to control the design of the device in order to ensure that specified design requirements are met.” This regulation imposes additional requirements on design “development,” “input,” “output,” “review,” “verification,” “validation,” “transfer,” “changes,” and “history.” Id. §§820.30(d-j).
[T]he 510(k) program has changed significantly since its inception. The MDA established the premarket notification process as a simple check to assure proper device classification. Through various statutory and regulatory modifications over time, it has become a multifaceted premarket review process that is expected to assure that cleared devices, subject to general and applicable special controls, provide reasonable assurance of safety and effectiveness, and to facilitate innovation in the medical device industry.
FDA, “CDRH Preliminary Internal Evaluations – Volume I, 510(k) Working Group Preliminary Report & Recommendations, at 34 (Aug. 2010) (§4.4 “The Current 510(k) Program”) (available online here) (emphasis added). In many instances, device specific FDA guidance, regulatory manuals, and other similar documents will provide additional regulatory proof of actual preemptive requirements imposed by the Agency upon particular devices or device types.
At this point, Lohr plainly has two shadows from a jurisprudential perspective. Essentially all of the propositions upon which its anti-preemptive rationale was based have been changed by Congress, or overruled by subsequent Supreme Court decisions.
First, The SMDA applied the same pre-market approval “reasonable assurance of safety and effectiveness” standard to §510(k) and gave the FDA the tools – a broad selection of “special controls” − to create the kind of “device specific” controls that preemption under Lohr required. The FDA has recognized on many occasions that safety and effectiveness is at the core of modern “substantial equivalence” determinations.
Second, Riegel held that the identical “rigorous” “reasonable assurance of safety and effectiveness” standard of FDA safety review is broadly preemptive.
Third, Franklin outright abolished the central guiding principle in Lohr − the presumption against preemption in express preemption cases is no more.
Fourth, Lohr’s gestalt approach allowing diffuse, general Congressional purpose to override preemptive statutory provisions has been rejected in Riegel and Mensing. If the statute’s language requires preemption, then that is what Congress “intended” – unless and until Congress changes it.
Fifth, Lohr’s reliance on an agency regulation to constrict the preemptive scope of that agency’s organic statute was questioned in Riegel and Levine before being rejected outright in Mensing.
Sixth, to the extent that Lohr distinguished state statutory/regulatory enactments and state common law in interpreting “requirements” as that term was used in §360k(a), Riegel definitively rejected that distinction.
Seventh, Lohr’s “parallel” claim analysis was restricted in Buckman, and avoided as waived in Riegel. Justice Gorsuch hates all the extra-textual hair splitting that has sprung up around the Riegel dictum, and as a result appears to be the kind of advocate we would want on Court for reconsidering and overruling Lohr.
We need good cases – not kamikaze motions in MDLs with institutional (at least) bias against preemption. We need cases where the FDA has, in fact, imposed device-specific special controls that specify design, warnings, clinical testing, and other relevant attributes of §510(k) medical devices. Only in such carefully selected cases, and after the compilation of a full regulatory record, will the “careful comparison” that even Lohr recognized could lead to preemption be able carry the day for the defense. That may change later on, once preemption becomes better established in post-SMDA §510(k) cases, but for now we’re not doing ourselves any favors making preemption motions on threadbare records or before judges predisposed to reject preemption arguments.
Lohr should be dead. Long live preemption.


§ 353-1 Adoption of Plumbing Code and Fuel Gas Code.
§ 353-3 Scope and applicability.
§ 353-5 Certificate of registration.
§ 353-6 Adoption of county regulations.
§ 353-7 Piping through adjacent property.
§ 353-9 Violations and penalties.
Building construction — See Ch. 145.
Fire prevention — See Ch. 204.
Sewers — See Ch. 397.
Editor's Note: This ordinance also repealed former Ch. 353, Plumbing and Gas Fitting Standards, adopted 2-17-2009 by Ord. No. 717-09.
For the purpose of establishing rules and regulations for the proper design, acceptable installation and adequate maintenance of plumbing and fuel-operated systems within the Town of Bel Air, permits and the fixing of penalties and fees, the Town of Bel Air hereby adopts the 2015 International Plumbing Code, the International Fuel Gas Code, 2015 Edition, published by the International Code Council and the American Gas Association and the 2015 International Residential Code, saving and excepting such portions as are deleted, modified or amended by this chapter, and the same are hereby adopted and made part of this chapter with the same force and effect as though set forth in full herein. A copy of the Plumbing Code and supplements thereto are on file with the Town of Bel Air and open for public use, examination and inspection.
The purpose of this chapter is to provide practical plumbing and gas fitting requirements to safeguard persons and gas fitting conditions in the Town of Bel Air.
The provisions of this chapter shall apply to and govern plumbing and gas fitting work performed in the Town of Bel Air and are designed to safeguard persons and property in the Town of Bel Air.
Definitions. As used in this Code, the term "authority having jurisdiction" means the Town of Bel Air Director of Public Works.
The following sections are changes or additions to certain sections of the 2015 International Plumbing Code.
Subsection 101.1, Title, is hereby amended by substituting the words "Town of Bel Air" for the words "name of jurisdiction."
Subsection 103.1, General, is hereby amended by deleting "The Department of Plumbing Inspection is hereby created and the executive official in charge thereof 'the Director of Public Works'."
Subsection 106.3, Application for permit, is hereby amended by adding "who shall meet with the requirements of § 202-5 of the Harford County Plumbing Code" after the word "agent" in the sixth line.
Subsection 106.3.1, Construction documents, is hereby amended by adding "All plans shall be prepared in accordance with § 202-7 of the Harford County Plumbing Code" in the fourth line after "for a permit."
106.3.4 Emergency work. When work of an emergency nature, other than sewage disposal work, must be performed to rectify a condition that is potentially unsanitary or hazardous to life, health or property, the master plumber, master natural gas fitter, water pump contractor or on-site contractor, as the case may be, may undertake such work prior to the issuance of a permit, but he or she shall notify the authority having jurisdiction over the emergency and shall obtain a permit for such work within 48 hours of the commencement of the work.
Subsection 106.5.3, Expiration, is hereby amended by deleting "180" in the fourth line and inserting, in lieu thereof, "365."
Subsection 106.5.3, Expiration, is hereby amended by deleting "one-half the amount required for a new permit for such work" starting in the ninth line and inserting, in lieu thereof, "in accordance with Chapter 157 of the Harford County Plumbing Code, as amended."
106.6.1 Fee schedule. The fees for all plumbing work, including permit fees, plan review, inspections and reinspections, shall be charged in accordance with Chapter 157 of the Harford County Plumbing Code, as amended.
106.6.2 Refunding of fees. Fees shall be refunded in accordance with Chapter 157 of the Harford County Plumbing Code, as amended.
Subsection 108.4, Violation penalties, is hereby amended by deleting "[specify offense], punishable by a fine of not more than [amount] dollars or by imprisonment not exceeding [number of days], or both such fine and imprisonment" in the seventh line and inserting, in lieu thereof, and replacing with "misdemeanor, punishable as provided in Chapter 1, Article II, of the Bel Air Town Code."
Subsection 108.5, Stop work orders, is hereby amended by deleting "[amount] dollars or more than [amount]" in the 14th line and inserting, in lieu thereof, and replacing with "misdemeanor, punishable as provided in Chapter 1, Article II, of the Bel Air Town Code."
Subsection 109.1, Application for appeal, is hereby amended by adding "created under Chapter 82 of the Harford County Plumbing Code" after "Board of Appeals" in the third and fourth lines.
Subsections 109.2 through 109.7 are deleted.
PLUMBING. The practice, materials and fixtures used in the installation, maintenance, extension, alteration and removal of all piping, plumbing fixtures, plumbing appliances, and plumbing appurtenances in connection with any of the following: sanitary drainage, storm facilities, venting systems, public or private water supply systems, within or adjacent to any building structure or conveyance; also the practice and materials used in the installation, maintenance, extension, alteration or removal of stormwater, refrigeration and air-conditioning drainage, liquid waste or sewage, and water supply, of any premises to their connection with the water supply system or to an acceptable disposal facility. "Plumbing" also means the practice and materials in the installation, repair, service and replacement of gas piping, gas utilization equipment, and associated accessories.
Except for the initial connection to a potable water supply downstream of the backflow preventer and the final connection that discharges indirectly into a public or private disposal system, the following are excluded from the definition: all piping, equipment or material used exclusively for environmental control, for incorporation of liquids or gases into any product or process for use in the manufacturing or storage of any product, including product development, or for the installation, alteration, repair or removal of automatic sprinkler systems installed for fire protection only or their related appurtenances or standpipes connected to automatic sprinkler systems or overhead or underground fire lines beginning at a point where water is used exclusively for fire protection.
PLUMBING BOARD. The Harford County Plumbing Board as defined in § 16-7 of the Harford County Plumbing Code, as amended.
Subsection 301.3, Connections to drainage system, is hereby amended by adding the following to the end of the sixth line: "The drainage system of any building in which plumbing fixtures are installed shall be connected to a public sewer system if the public sewer system is within 10 feet of any property line of the premises, or other reasonable distance as determined by the authority having jurisdiction."
Subsection 301.4, Connections to water supply, is hereby amended by adding the following to the end of the fifth line: "The water distribution system of any building in which plumbing fixtures are installed shall be connected to a public water supply system if the public water supply system is within 10 feet of any property line of the premises, or other reasonable distance as determined by the authority having jurisdiction."
404.2 Maryland Accessibility Code. Plumbing fixtures, materials and clearances for those fixtures shall be accessible to individuals with disabilities as specified in the Maryland Accessibility Code, COMAR 05.02.02 et seq.
405.3.6. Faucet installations. Fiberglass or plastic tub and shower enclosures cannot be installed with faucets back-to-back unless approved by the authority having jurisdiction.
Subsection 504.6, Requirements for discharge piping, is hereby amended by deleting item 5 and inserting in lieu thereof, "discharge to a waste receptor or to the outdoors."
Subsection 504.7, Required pan, is hereby amended by adding the words, "clothes washing machine" after the word "heater" in the first line.
603.3 Water meters. Each dwelling unit which meets the definition of a "dwelling, carriage court" contained in § 267-4 of the Harford County Plumbing Code, as amended, shall be provided with a private, individual water meter.
Air chambers when equipped with an accessible means restoring the air.
Approved mechanical devices. Pressure at any fixture shall be limited to no more than 80 P.S.I. under no-flow conditions.
Pumps provided in connection with a hydro pneumatic or elevated gravity water supply tank system.
605.3. Water service pipe. Approved water service pipe to the point of the entrance of a building, including piping to the pressure-reducing valve, shall have a minimum pressure rating of 200 P.S.I., 73° F. Acceptable materials for a water service include brass pipe, copper tube or copper pipe, cast iron water pipe, polyethylene plastic tubing and chlorinated polyvinyl chloride service pipe. Copper tube or copper pipe, when used underground, may not be less than Type L. All threaded ferrous pipe and fitting shall be galvanized or cement lines and, when used underground in corrosive soil or filled ground, shall be coal tar enamel coated, or the equivalent, and threaded joints shall be coated and wrapped when installed.
605.3.2 Backflow prevention on commercial properties. For a commercial property with multiple tenants, the water service for each tenant space shall be separate and shall have a testable backflow preventer installed.
605.4 Water distribution pipe. Water distribution pipe shall be of brass pipe, copper tube or copper pipe, galvanized steel pipe, polyethylene and chlorinated polyvinyl plastic when approved for hot or cold use. Copper tube or copper pipe, when used underground, may not be less than Type L and, when used above ground, may not be less than Type M.
Subsection 1003.3.1, Grease interceptors and automatic grease removal devices required, is amended by adding, prior to the word "A" in the second line, "except in special cases as determined by the authority having jurisdiction."
Subsection 1003.3.1, Grease interceptors and automatic grease removal devices required, is hereby amended by inserting the following sentence after "to be discharged" in the 14th line: "upon request by the authority having jurisdiction or the Harford County Health Department, the owner of the establishment shall provide a copy of a pumping contract or pumping receipts for the interceptor. The minimum size of a grease interceptor shall be 1,000 gallons. The grease interceptor shall be located outside of the building unless otherwise determined by the authority having jurisdiction. The discharge from a commercial dishwasher shall not pass through a grease interceptor unless approved by the authority having jurisdiction."
Subsection 1003.3.1, Grease interceptors and automatic grease removal devices required, is hereby amended by inserting the following sentence at the end of the subsection: "Where installed inside building, a grease interceptor shall be located in a separate room which has outside access."
1101.10. Parking and fuel island storm drainage. On parking lots, fuel islands or parking garages where oil waste product is subject to mixing with rain water, ice and melting snow, drains for the runoff shall not be connected to the sanitary sewer. Any stormwater runoff shall be drained separately to the storm sewer.
The following sections are changes or additions to certain sections of the 2015 International Fuel Gas Code.
Subsection 101.1, Title, is hereby amended by substituting the words "Town of Bel Air" for the words "[name of jurisdiction]."
101.3 Appendices. The provisions of Appendix A, Appendix B, Appendix C and Appendix D are hereby adopted as part of this code.
Subsection 103.1, General, is hereby amended by deleting "The Department of Inspection is hereby created and the executive official in charge thereof" starting in the first line and inserting, in lieu thereof, "The Director of the Department of Public Works."
103.2 Deputy. The Code Official shall have the authority to designate an employee of the Department of Public Works as a Deputy Code Official, for the purposes of enforcing the code.
Subsection 104.2, Applicants and permits, is amended by adding "and rules and regulations adopted in accordance with Section 807 of the Harford County Charter" after the words "of this code" in the sixth line.
Subsections 106.1.1 through 106.1.2 are deleted.
Subsection 106.3.1, Construction documents, is amended by deleting "by a registered design professional when required by state law" and replacing with "in accordance with § 202-7 of the Harford County Plumbing Code."
106.3.3 Applicants. Only an individual holding a certificate of registration in accordance with § 202-5 of the Harford County Plumbing Code shall be eligible to make application for a permit to do work governed by this code.
Subsection 106.5.3, Expiration, is amended by deleting "180 days" in the fourth line and replacing with "365 days."
Subsection 106.5.3, Expiration, is amended by deleting "one-half the amount required for a new permit" in the eighth line and replacing with "in accordance with Chapter 157 of the Harford County Plumbing Code, as amended."
Subsection 106.6.1, Work commencing before permit issuance, is amended by deleting "100 percent of the usual permit fee in addition to the required" in the fourth line and replacing with "the fees prescribed in Chapter 157 of the Harford County Plumbing Code, as amended."
Subsection 106.6.2, Fee schedule, is amended by deleting "the following section schedule. [jurisdiction to insert appropriate schedule]" and replacing with "as provided in Chapter 1, Article II, of the Bel Air Town Code."
106.6.3 Fee refunds. All refunds of permit fees shall be in accordance with Chapter 157 of the Harford County Plumbing Code, as amended.
Subsection 108.4, Violation penalties, is amended by deleting "[specify offense]" in sixth line, "[amount]" in seventh line and "[number of days]" in the eighth line and replacing with "misdemeanor, punishable as provided in Chapter 1, Article II, of the Bel Air Town Code."
Subsection 108.5, Stop work orders, is amended by deleting "liable for fine of not less than [amount] dollars or more than [amount] dollars" in the 13th line and replacing with "misdemeanor, punishable as provided in Chapter 1, Article II, of the Bel Air Town Code."
Subsection 109.1, Application for appeal, is hereby amended by adding "created under Chapter 82 of the Harford County Code" after "Board of Appeals" in the third and fourth lines.
CODE OFFICIAL. The Director of Public Works for the Town of Bel Air or his/her designee.
DEPARTMENT OF INSPECTION. The Harford County Department of Inspections, Licenses and Permits.
All persons performing plumbing or gas fitting services in the Town of Bel Air shall be registered with the Harford County Division of Plumbing Services and certified in accordance with § 202-4, Certificate of registration, of the Harford County Plumbing Code.
The following sections of the Harford County Plumbing Code are adopted by reference and shall apply to plumbing and gas fitting services in the Town of Bel Air: § 202-5, Permit applicants, § 202-6, Change of registered contractors, § 202-7, Plans and specification, and § 202-8, Inspection of plumbing, gas fitting and sewage disposal systems.
Such easement or right-of-way shall be granted and conveyed by plat and/or formal deed recorded in the land records of Harford County.
Plumbing shall be designed and adjusted to use the minimum quantity of water consistent with proper performance and cleaning and in conformity with the water conservation requirements established in the Maryland State Plumbing Code.
Executive authority. The Board of Town Commissioners may institute measures to adopt plans to increase the water supply of the Town of Bel Air and decrease consumption, such as, but not limited to, requiring the use of fixtures as stated herein and requiring a limited use of potable water for purposes other than for human consumption and use.
Any person, firm or corporation who or which individually, collectively or through others shall construct, erect, alter or repair any plumbing, gas fitting or sewage disposal work in violation of any provision of this chapter shall be guilty of a misdemeanor and shall be subject to a penalty as provided in Chapter 1, Article II, of this Code.