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State of New York Supreme Court, Appellate Division Third Judicial Department
July 7, 2011
THE PEOPLE OF THE STATE OF NEW YORK, RESPONDENT,v.JERRY CARTER, APPELLANT.
Appeal from an order of the County Court of Columbia County (Nichols, J.), entered August 25, 2010, which denied defendant's application for resentencing pursuant to CPL 440.46.
Calendar Date: May 27, 2011
Before: Mercure, J.P., Peters, Malone Jr., Kavanagh and Stein, JJ.
On October 31, 1997, defendant was convicted upon his plea of guilty of three counts of criminal sale of a controlled substance in the third degree, and sentenced to an aggregate prison term of 9 to 18 years. On July 23, 2010, defendant applied for resentencing pursuant to CPL 440.46. County Court denied defendant's application, finding that he was ineligible for resentencing based upon a prior violent felony conviction on October 7, 1987. County Court reasoned that, excluding the period of incarceration on the 1987 offense, defendant's convictions occurred within a 10-year period. Defendant appeals.
The resentencing provisions of CPL 440.46 do "not apply to any person who is serving a sentence on a conviction for or has a predicate felony conviction for an exclusion offense" (CPL 440.46 [5]). An "exclusion offense" is "a crime for which the person was previously convicted within the preceding [10] years, excluding any time during which the offender was incarcerated for any reason between the time of commission of the previous felony and the time of commission of the present felony, which was . . . a violent felony offense as defined in section 70.02 of the penal law" (CPL 440.46 [5] [a] [i]). The sole issue before us is whether the 10-year look-back period is to be measured from the date of the commission of the offense for which defendant seeks resentencing or from the date of the motion for resentencing.
In their brief before us, the People now agree with defendant that the look-back period runs from the date of the application for resentencing. Moreover, we are in agreement with the reasoning of the other Departments of the Appellate Division and join in their conclusion that both the plain language and the ameliorative purpose of the statute dictate that the look-back period be measured from the date of the motion for resentencing (see People v Hill, 82 AD3d 77, 79-80 [4th Dept 2011]; People v Sosa, 81 AD3d 464, 465 [1st Dept 2011], lv granted 16 NY3d 863 [2011]; see also People v Williams, 82 AD3d 796, 797 [2d Dept 2011]). In contrast, County Court's determination that defendant is not eligible for resentencing was improperly based upon a calculation of the 10-year look-back period from the date of the commission of the present offense rather than the date of the application for resentencing. As the People concede, the order must accordingly be reversed and the matter remitted for further proceedings.
Peters, Malone Jr., Kavanagh and Stein, JJ., concur.
ORDERED that the order is reversed, on the law, and matter remitted to the County Court of Columbia County for further proceedings not inconsistent with this Court's decision.
Robert D. Mayberger Clerk of the Court
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Introduction: Grown ups think that they've cornered the market on stress. But kids are under a lot of pressure, too. There's always tommorrows spelling test, or the big softball game on saturday , or your pesky little brother who's discovered your dairy. Life is full of tiny aggravations. The trick is not to let them get to you. Easier said than done? Not at all . Its just a matter of learning new ways to deal with the things that bother you most. And that's where this book comes in. Just stick with the tips in these pages . They ll help you stomp out the things that bug you. 1. Stop using others as your mirror .... ITs how you view yourself thats important !: Isn't it weird how we care so much about what others think of us? We let people put us into all sorts of categories. You have heard the labels : The brains, the jocks the nerds... But no one really fits into a catagory. Foods fit into groups , people dont ! . So befor you let someone else define you, remember: Each person is unique. And we are all made up of many diffrent characteristics. The names other people give you can never define you- They can only confine you . Dont you let them !. 2. The sun will come up tomorrow ..... unless , of course, its cloudy: Okay . so its bedtime and you realize that this has been, with out a
doubt, the absolute worst day of your life. Oh well . Somedays are like that. The key is to leave today in the past and remember that tomorrow is a brand new day. Think of that new day as a clean sheet of paper. Only you can decide what is written on that empty page. Its up to you to scribble down words that are dismal and dull or bright and happy. Do yourself a favor . Leave the clouds to mother nature. Fill all of your tomorrows with as much sunshine as you can. 3 . Its a bad Hair day ... Try wearing a new hat ! : We all have days when we look a lot less than our best . but dont spend the whole day hiding in the bathroom . View those bad hair days as a challenge ! Think of its this way: If yor hair looks messy , it is the perfect time to wear that new funky , floppy hat you found at the vintage clothing store . And if you spill paint all over your new pants , dont freak out. Now you' ve started a new fashion trend ! With a little creativity , your style will shine through, giving you the confidence you need to make it through the day ! 4. Psst... Here's a note : There's something so exciting about receiving a letter . It's the thrill of tearing open the envelope , carefully unfolding the paper, and reading the words on the page. Putting pen to paper is a great way to tell a friend just how much he or she means to you. It gives you a chance to compose your thoughts and write what you really feel . Knowing that you' ve made someone's day better will lift your spirits as well. Try writting at least one special friendship note a day. Just dont pass them during math class !. 5. Rise and shine ! " you' re going to miss the bus ! Dont forget to take your homework . Did you remember to make your bed?"
Let 's face it . Mornining is not exactly the most relaxed time of the day. If you are liske most kids, getting ready for schools is more like a mad dash through an obstcle course . You have to grab your books . wolf down your breakfast , and get out the door - avoiding arguments with your parents and siblings along the way. The best approach to getting through the morning rush is to prepare the night berfor. Pack up your lunch and put it in the refrigerator. Leave your bcakpack by the front door. Lay out your clothes before you go to sleep . Finally , set your alarm clock for a half hour earlier than you normally get up. You would be surprise how much you can get done in that extra half hour. You may even find a few more minutes to practice for your piano lessons-- before school ! ( That will give you time in the evening to watch that new show you've been dying to check out .) When your morning strars out smoothly , the rest of the day is sure to follow! 6. Sometimes being right can turn out wrong ( or the demise of the words " i told you so !") Why is it so important that we be right all th time? It isn't , But we sure do put a lot of energy into being correct -- and making sure that someone else knows he's wrong. Many of life's questions have no real right or wrong answers . And most of us would be a lot happier is we stopped focusing on proving ourselves right -- and strarted focusing on making ourselves happy. Just think of all the fun things you could do with the time saved by not arguing. 7. It's only a thing " I can't belive you ruined my favorite sweater." " How could you lose my favorite bracelet?" We all form attachments to objects. Sometimes theres a sentimental value attached to items that makes them worth much more than their actual dollar value. In that case, What we're attached to is not the
object but the emotion behind it. And nobody can lose or destroy that. And if it's the object itself you are attached to , Just imagine breaking or ruining it yourself instread of your friend. Would you feel more forgiving ? Remember: Objects can always be replaced. Friendship can't. 8. We'll return to our show after this commercial message . Whenever you come face to face with what seems like a really bad situation its time to give yourself a new job: Tv writer. Most TV characters solve their problems in a matter of thirty minutes ( Twenty -two if you dont count the commercials.) TV writers often come up with alternative endings for their shows . Write Down all the different ways you can handle your problem. Some of your solution will lead you into more stress-ful situations . But others will show you that there's a light at the end of the tunnel . That's the direction you'll want to follow. 9. Dont let history repeat itself No matter how many ways you find to avoid them , some problems do hit you head on . And sometimes you will make mistakes in how you handle them . The key is to learn from your mistakes and vow not to make the same errors again . That way, as you deal with the consequences of your blunder , you can keep saying to yourself, " At least when this is all over, I'll never have to go through that again." Learn from your mistakes. 10.Find your hidden talent Nothing can make someone feel better than knowing he's good at something . Not necessarily the best , but awfully good. Everyone has a talent hidden somewher inside them . The trick is finding what you talent is . Usually people are interested in the things they have a natural inclination for . So if you love the sound of guitar , take a few lessons and see how it goes. If you like the freedom of running fast , join the track team . Once you find your hidden talent , there's no
stopping you. And you ll find that your confidence will take you to new heights. 11. Study Sorry, but that's the only real way to de stress before a test . Naturally , you re going to do better in some subjects than in others. And you probably have a friend who does well in the classes you dont have a flair for. So maybe you can help each other reduce test stress-- by studying together. You help her with the math and science, and she ll pull you through that spelling test . And you just may be surprised: working together can actually make learnig fun. 12. ITs just a letter ... Why grades dont tell the whole story Lets face it . It would be nice to pick up your report card and see a list of A's staring back at you . But it doesnt always happen that way. And sometimes getting less than an A can be pretty disappoinging. The truth is , People Put far too much emphasis on grades. School is nto for acquiring high averages. It' about learning . School is a place where you prepare for life as a grown up. And just because you are not a great test taker , or raising your hand in class makes you nervous , doesn't mean you don't have a huge store of knowlege in your head - knowlegdge that is sure to come in handy someday. More important than what your grades say is what your heart says. Do you go to school each day eager to gather new information? Do you try your hardest to study, pay attention , and do the work?Are you satisfied with your work? Are you satisfied with your work? If you can answer yes to those questions , then you ve got a 4.0 average where it really counts. 13. Remember: Even Paula cole Couldnt get a date for her prom Its true. Pop Sensation Paula Cole recalls not being able to get a date for her own senior prom. And look at her now!
You 've got to remember that you are in this life for the long haul . The things that mean a lot to you now may not be all that important in the coming years . In fact, When you re going to yur tenth high schoool reunion, no one is going to remember that you dropped your tray in the middle of the cafeteria, or that you started singing (off- Key , of course) before anyone else in the choir . And since none of these little tragedies are going to matter in the long run , Why not laugh them off now? 14. Start a new trend So you dont think those new T- Shirts everybody is wearing will look good on you ? And may be those new platform shoes( on sale now!) are a little less comfortable for walking to and from school .Are you tired of following trends? Before you go out and buy yourself something you know is totally wrong for you , ask yourself this simple question: Is it really me ? All kinds of people will try to tell you what's right for you . But the only person who knows what style , color, and hair cut work for you is you . So go out and buy what you like . And who knows -- you may be the next trendsetter ! 15. What i like about me Imagine waking up every morning and discovering a list of all things that make you great . Well , dont just imagine it...do it ! Make a list of all things you do well : May be you re a good friend, amazing at tennis , and helpful around the house. Be sure to list every single one of your most wonderful attributes . Then hang the list on your wall. And be sure to read it every morning before you leave your room to start the day. 16. Mirror , mirror on the wall Do you like yourself? You should . You are a one of a kind special person full of promise and possibiliities. So every morning ,before you go off to face the world , look in the mirror and say " I like my self".
Watch your face as you those words . A smile is sure to spread . In fact it's practically impossible to say " I like myself " With a frown. 17. Say Cheese No matter how gray the day , put a sunny smile on your face . Your brain will begin to believe that you are happy . Dont believe us ? Give it a try . Its a scientific fact that using the power of suggestion ( in this case a smile ) will help convince yourself that you really are happy. And before long, that smile will be the geniune article! If that's not a good enough reason to grin , think of it this smiling is relaxing . Your face uses far fewer muscles to smile than it does to frown. 18. Stick your fingers in your ears... Okay, We dont mean literally stick your fingers in your ears. We mean no more eavesdropping ! When you overhear snippets of a conversation , you are liable to misunderstand the gist of what is being said. Suppose you hear two of your friends talking about a great party Friday night - a party you haven't been invited to. You are likely to feel hurt, left out, lonely and frustrated . Of course , you missed the beginning of the conversation the party is a surprise ... for you. 19. Spend an afternoon just staring at the clouds. Life is so complicated . We re always running here, calling there, and trying desperately to get everything done in just twenty four hours. If you ever want tod de- stress , stop whatever activity you are doing . Give yourself a chance to focus on absoulutely nothing. Lying on your back and staring at the clouds is just the kind of relaxation your body is begging ofr . So stretch out and look at those white cottony puffs up there.
Just a few minutes of staring into space will do your brain and body a world of good. And when you 're findished contemplating whether that cloud to the left looks more like an ice cream con or a rocket ship, you ll be rested and ready to face the world wih renewed energy and confidence. 20.Listen to the music in your head Do you have a favorite pop tune? Something upbeat and happy, with lyrics that make you want to dance or smile ? Well , you can take that music with you whetever you go . Just play that song over and over again ... in your head ! When you 're walking down that street , think of your favorite song. Before you know it , you 'll be stepping in time to the beat and smiling as you run through those happy words and that peppy tune . Music is a very powerful force. Let it lift you up . 21. Congratulations to me Some people are not confident about their talents untill someone else recognizes them . Thy wait and wait and wait ... for others to tell temm they 've done a good job. But why wait? Deep down inside you know when you 've gone that extra mile or achieved a goal you never thought you would. So instead of waiting for an outsider to recognize your talents , give yourself a pat on the back and say ," Congratulations to me!". 22. Take me to your leader The next time you feel like you 've got HUGE problems , imagine you are an alien studying human behavior . Looking at your life from a space creature's point of view will help you see the big picture . You might realize that things are not as bad as they seem. More important , pretending that you are an alien is guranteed to make you laugh. And humor is one of the best remedies for any problem.
23. Be the teacher for a change Does your school have a peer tutoring progrram? If it does , sign up . Teaching others is a great way to feel good about yourself. First of all , you'll have the satisfaction of making someone else's life a little easier. And who knows- you might even learn something ! But most important , tutoring will give you the opportunity to make a new friend. And that is the greatest gift of all. 24. Make every day thanksgiving day Have you ever had one of those days when you feel like your are the sorriest person in the world? A day when it seems like everyone else has an easy life and yours is the pits ? Well- belive it or not-- That's the perfect time to give thanks. When you feel your lowest, that's the time to make a list of all the things in your life that you are thankful for . You can list the big things , such as family , friends, your dog, and having a roof over your head. But you should also list the little things that make life worth living ,like the fact that your mom makes the most amazing strawberry French toas , that your dad loves playing one on one basketball with you on Saturday, and that your little sister has ballet class after school so you 'll get to listen to your music for a change. Once you see how many wonderful things you have to be grateful for , you 'll realize that your life is pretty great after all. 25. Make it worth the wait Did you ever try to cunt up all the time you spend waiting in lines? There's the line in the cafeteria, the line at the movie ticket booth , the line at the checkout counter at the record store... well ,you get the picture. Waiting in line can get pretty frustration -- particularly if you' re spending your waiting time thinking about all the things you need to do after you get to the front of the line. So don't think about them . Spend your line time trying one of these:
Iometric exercises. Place your palms together and push them against each other as hard as you can . It will buid your muscles. Imagine what all the people in line looked like as babies. You 'll laugh your way up the line. Imagine that you are a movie star stopping to pose for the paparazzi. Just keep those smiles and waves imaginary too. Unless you want people to stare at you. 26. Work for peace After a long , hard day , it should feel nice to come home to your peaceful house and unwind. But ofr lots of kids, home is a war zone. Nobody wants to live in a place where there's constant fighting and screaming . So for the sake of your sanity (and your parents' sanity, too) do your share to dclare a cease fire. To decrease parental nagging , beat your rents to the punch. Make your bed in the morning before you leave. Do your chores and homework before your parents ask you to . In no time , your parents will be smiling instead of growling in your direction. 27.Give Grandma a call Scientists were amazed to discover that chicken soup really does make you feel better. But they shouldn't have been so surprised . Grandmothers have been making people feel better since the beginning of time. When something is really getting you down, talking to Grandma can bring you right back up again . For one thing, a grandmother can easily reassure you that people have had those exact worries for decades. In fact , your grandma may have gone through a similar experience , and look at what a cool lady she turned out to be. 28. Brotherly (and sisterly)love
In real life there are no genies waiting to grant you three wishes. Which means your siblings are never going to disappear. The best you can do is learn to live with them --and may be even learn to enjoy having them around. Instead of focusing on the negatives of having sibs , think about this: There's always someone to play cards with or tell jokes to. And when your parents get on your nerves , there's always someone who understands. If you think about how lonely you'd be on a rainy day with out your sibs , living with them will seem easier. 29. Here's a bonus In the grown up world, a job well done is often rewarded with a raise or a bonus . It's just the boss's way of saying thanks. Kids dont get salaries, so getting a raise is kind of out of the question. But you can give yourself a little bonus for achieving a goal . Reward yourself. Treat yourself to an extra half hour of T.V. Or perhaps an extra dessret is more your style. There's always the nearest record store, where that new CD you 've been dying for is waiting on the shelf. Whaterver your reward, remember to tell yourself how proud you are of you. 30. Have great fantasies What would make you happy ? Really happy? Indulge yourself .Allow yourself to daydream about what the perfect life would be like would be like. Would you live in a mansion? Would you be a rock star? Would you be the one to find the cure for cancer? Would you throw the winning pitch in the Series ? Anything is possible in your dreams. So once a day, take a few queit moments to let your mind go wild .And who knows what the future holds? Dreams have been known to come true, you know. 31. Honesty is the best policy...Honest
Sometimes telling the truth can be tough . And the thought of revealing the truth behind a situation can bring on a lot of stress . So you might think the best stress buster would be to tell a little white lie. But lies cause more stress than truth does . when people lie, their blood pressure rises slightly, as does their pulse rate.That means lying is actually unhealthy. Sure , that initial lie might get you out of a quick jam. But then you'll remember what you said when you lied. And you might have to tell another lie to back up the first one. And then you'd have to remember two lies. Who knows how far that could go? The stress of keeping track of all those nontruths will make you wish you'd faced up to the truth in the first place. 32. Have a conversation with your dog (or your cat , your hamster, your canary...) Pets are great to have around . They love you as long as you feed them. And they 'll cuddle with you at just the right moment. Pets are also good listeners. ( Maybe that's because they can't answer back) So tell your problems to your pet. Sometimes saying things out loud makes the solution easier to find. And you often feel better about things once they are out in the open . Talking out loud to yourself may seem just too weird. But talking to a goldfish isn't all that strange...is it? 33. Rub a rock Have you ever heard of worry stones? They are small , smooth rocks that you can rub with your thumb to release stress. People have been using worry stones for centuries to release tension. When you rub your thumb against the stone, your body releases endorphins, which are natural tension busters. So give your worries to a rock. Rocks are tough. They never get stressed.
34. Make friends with mother nature. The chirping of a cricket . The crunch your feet make on autumn leaves. The gentle roar of the ocean . The quiet of fallen snow. The sounds of nature are incredibly calming . Concentrate on them and your brain will relax . Before long, your body will follow. 35. Study the stars The night sky is an incredible sight . Whether you follow the moon's phases or try to identify the constellations, you can't help but marvel at the universe. Isn't it remarkable to realize that those stars have been around since the beginning of time? Looking at the night sky is calming in itself. And when you consider that our planet is a tiny speck in the universe , your problems may seem smaller, too. 36. Say I care It's not easy to be a volunteer . When everyone else is going to see that hot new movie, you have to help out at the homeless shelter. And when your friends are going skating, you find yourself indoors reading a book to a blind woman. Still movies only make you feel good for a few hours . And skating is only fun untill you fall. But the inner glow you get from doing a good deed for someone less fortunate will make you feel wonderful about yourself for years to come . And when you feel good about yourself, nothing can bring you down. 37. Call time out It's easy to say things in the heat of an argument . And no matter how many times you apologize, hurtful words will just hang there in the air .They never completely go away. The next time you find yourself having a quarrel , stop before you speak . Take the time to count to ten. Think about the consequences of the
words you are about to say. Is it worth destroying a friendship over? Probably not. In that cast , it's best to just let it go and agree to disagree. 38. Dont keep it to yourself Letting anger fester too long can be disastrous. Not only does anger keep your body tense(ever try to smile when your lower jaw is locked?) But trying to avoid a friend or family member who bugs you is almost impossible. Besides, if you stay angry long enough , you almost never remember why - You just know you re angry. The best thing to do is take a short cooling off break and then sit down and quietly , calmly talk with the person you are quarreling with . Be secure in the knowledge that you can work it out. 39.Learning to listen Are you a good listener? Or are you all mouth and no ears? Here's a way to test whether you are truly listening. Ask yourself these questions: Do you interrupt people before they finish what they have to say? Do you change the subject constantly ? If you replied yes to both of these questions, then you are not really listening. YOu owe it to the people you care about to give them your utmost attention when they need you. Because you 'd want them to do the same for you, right? Everybody needs to take turns and listen up. And remember, you can only learn when you listen. 40. First things first. If you are like most kids , you have a lot going on: after school activities, homework, chores..... well , you get the drift, sometimes being faced with such a long list of things that need to get done can be paralyzing . You just stare at the list and think, I'll never do all this. So you dont do anything. Here's a tip on how to stop feeling overwhelmed . First, write down the
things you have to do-- in priority order. Put the things that have to be done right away at the top of the list. The things that aren't due for a while can move to the bottom of the list. Now set a goal for yourself. Say, " I will finish the first three things on my list tonight . Tommorrow, i will do the next three." And be sure to cross those things off your list as you finish them . That will give you a great sense of accomplishment. 41. Dont let others bring you down... and dont make them responsible for bringing you up either. It's hard not to feel bad for a friend when she's sad. But her troubles aren't yours. And while it's good to help out when you can , don't take your pal's troubles home with you. Ultimately, everyone is responsible for her own happiness. But it works both ways. While it is reasonable to expect your friends to listen to you when you need them , it is up to you to pick yourself up, dust yourself off, and smile again. Your happiness is totally up to you. 42. You are not a know it all When you walk into English class, you feel totally at home. But when you walk into math , it's like walking into a foreign country where you don't speak the language. Maybe in your case, just the opposite is true. Either way, you 'll have to learn to accept a simple fact of life-- nobody can know everything. It is important to work hard and do the best you can with all of your schoolwork . But understand that we all have our own strenghts and weakness . You can't be perfect-- and why would you want to be? Just do your best -- That's always good enough. 43. The land of the brave. A group of bullies in your class has decided to pick on one girl. They make fun of her hair, her clothes, even her lunch. But you kind of like
her. Still, if you let on how you feel , you 'll be the next one to be picked on. What do you do? At first it might seem less stressful to just stay out of it. But that's the most stressful solution. Going against what you really belive in causes a conflict in your brain. So be brave . Defend the girl . You 'll feel true to yourself. And You may discover a beautiful friendship along the way . No bullies can destroy that. 44. Choose your battles Save your fighting words for the things that really matter . Beforce you start feeling the steam blowing out of your ears , take the time to think: Is this really worth fighting over? If it is not , just blow the battle off. If it is something you feel strongly about, however, try to choose your words carefully and keep your voice calm. Remember: If yor rant and rave all the time , no one will know when you really mean it . Save your arguments for the really big things, and your words will hold real power. (You'll also avoid some unnecessary stressful arguments.) 45. Keep Your eyes on your own paper. You take one look at your social studies quiz and you know today is a disaster. You don't remember the answer to the first question, and that's not a good sign . But you are sitting next to the smartest kid in class and... Don't do it. Dont look at her paper . It is better to get a poor grade than to cheat . Once you get the poor grade, it's over, and you can try to do better next time. But once you cheat, that stays with you. You 'll spend hours wondering if your teacher and parents will ever find out . And you'll never feel good about the grade you received . As usual , honesty remains the best policy.
46. Play mind games. It's one thing to stand up for what you belive in . It's another to feel that what you beliveve in is always right. That kind of rigid thinking blocks your ability to lear and grow as a human being .And when your growth is stunted , you feel stress. So learn to bend . Consider other people's ideas as well as your own . You dont have to give up your belief system . Just acknowledge that there are other opinions out there.And accept that people have different life experiences that enable them to see things differently than you do . When a new idea intrigues you, go out and lean about it. hit the library, or call up a free categories on the internet. If you find out something really fascinationg, spread the word. Have discussions with your friends. You 'll be able to learn a lot from one another. 47. "I love your smile" Here's a goal to set for yourself: Try to give at least one compliment a day.Saying something nice to people raises their self esteem. And when you make your friends happy, you make yourself feel good, too. 48. Try Being two faced. No, We dont mean lying and cheating behind someone's back.We mean try to see both sides of the same argument. First, think of your point of view. Then , think of all the reasons someone else might think you're wrong. Being able to predict what other people will think may open your mind to new ideas. 49. Work out There's no better feeling than taking part in a good , sweaty workout. when you work out , your body releases natural stress busters called endorphins , which calm your body. And the harder the workout , the better you feel .Your phys ed teacher will be able to set you up with
some good exercises to start with. Vary your workout program to keep it fun . Do calisthenics one day, Shoot hoops the next . And dont underestimate the power of a good , long run. Running is a solitiary experience. Sometimes being alone is a good way to sort out the issues that have been plaguing you all day long. But be sure to stretch before and after your run. And dont start any workout program untill you check with your doctor. Here's an added plus -- Working out makes you look great. And when you look great, you feel positive about yourself.
50.Be prepared Do you panic when the teacher begins calling on people who havent raised their hands? Does your stomach tremble? Do your palms Get sweaty? Well , there's only real solution to that problem--do your homework. If you study and do the work that's assigned , you won't panic when the teacher calls on you -- because you know you know your stuff. In fact, you just may find yourself raising your hand when the teacher asks a question. 51. Dont worry about tomorrow. Has this ever happened to you? You don't do as well as you would have liked on a spelling test. Suddenly , Your mind is working faster than the Concorde jet." Oh no. My spelling grade may not be as high as i want on my next report card. And that means i may not get into a good english class in junior high. And come high school, I'll be in real trouble, and... Too many "ands" huh? Thinking like this is called the snowball effect. It can be paralyzing . The trick to stopping it ? Stop your mind . Then focus on a positive way to deal with problem. You can still become a great speller if you really want to .
52. For the love of leaves Go out and buy yourself a plant . One of the things that makes people happy is the ability to love someone or something unconditionally . But that's almost impossible.People can make us angry sometimes. And pets can,too. But plants can't. They dont nag, they dont peek in your drary, and they dont wet on the rug. You can water , feed , and even talk to your plant without ever getting annoyed with it . Your plant will bloom beautifully in return. And the satisfaction of making a living thing blossom will help you blossom.too. 53. I think i can .... I think i can... DO you remember that kiddie story about the little engine that could? Even though it was a tiny engine, it managed to pull a bigger train up a steep hill. How did it manage to do tha t? It didn't suddenly get miraculosly bigger. It didn't get overloaded with more coal . It just thought positively. Thinking positively can help you , too. Going into a test knowing you'll do well will keep you from getting nervous and freezing in the middle of the exam . And being certain that you are every bit as fast a swimmer as everyone else on the team may just give you the edge you need to win the race . So go get' em. 54."Stay as sweet as you are" That's the kind of thing we write in our friends autograph books. But how many times have you become friendly with someone because you think he or she is so special , only to try to change that person into someone completely different? No matter how much you and your friends have in common , you will never think exactly the same way. So rather than wasting your time trying to turn your friends into carbon copies of yourself( Which can be rather frustrating , not to mention ' impossible') , enjoy your differences . They are the spice of life.
55. Surprise I choose you The next time you are the captain and it's time to choose sides, pick the worst player first. That's right , the worst player. You are sure to give that kid a confidence boost (which just might make him play better than he ever has before). You 'll also give yourself a reason to be proud. There's nothing better than making someone else feel good about himself. Choosing the worst player first has an added bonus -- you'll remember the real reason for playing sports -- it's not the winning but the love of the game that counts. 56. Weekly run - through It's Sunday night. Tommorrow its back to school .All those things you were able to push out of your mind during the weekend are back to haunt you . You are feeling panicky Take a minute to think . Start with last Monday.What did you do ? Did you get up late? Have a hot break fast? chat on the phone for a while with your best pal? How about Tuesday? Did you score any goals in soccer? Did you ace the spelling test? What about wednesday ? Was that the day you tripped in the cafeteria and spilled your milk ? Go through every day of the week. Try to remember what you ate , what you thought , and how you felt. And when you've reached the end , say good bye to the week that was. It's over. It can't hurt you anymore. Now get ready for a new week . It's full of opportunities you've never even dreamed of.
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Summary | Excerpt | Reading Guide | Reviews | Beyond the book | Readalikes | Genres & Themes | Author Bio
Anthropology of an American Girl is a perfect summer book. It manages to be at once languorous and intense, a page-turner that demands to be read slowly, a story bathed in the golden light of Long Island with a dark thrum like an ocean undertow. It is a big fat book, just right for the lengthening days ahead. If you were once an American girl, you should read this book. If possible, you should read this book in concert with another former American girl, or two, or seven, so you can discuss it as it unfolds. This is a book that just might stir up dormant emotions from the summer of your own life, thoughts alternately welcome and discomfiting.
Evie, the narrator, is an outsider in her social milieu. She is attractive in a dark, unconventional way, so she draws the gazes of many people but lacks the protective envelope of a group of friends. Her divorced parents treat her with ...
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Career Counselor Salary
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Job Description for Career Counselor
Career counselors help their clients find appropriate career paths and available positions. Their duties include administering personality, interest and aptitude tests; advising students and other clients on particular courses and educational requirements for different jobs; discuss options with clients who want a career change; and evaluate clients' educational and work backgrounds. These counselors also help clients find the right schools and programs for their needs, help find financial resources and training programs, teach and practice job skills, and perform other duties related to aiding clients in their job search.Read More...
Career counselors usually work in an office environment, and they may work for a variety of employers. For example, they may work in high schools to help students select appropriate post-secondary education, or they may work in a college setting to aid students in finding a major and post-graduation employment. These counselors may also be employed by the government or a private company to help adults who want to change careers.
The educational requirements for career counselors include a master's degree in counseling or a related field, as well as relevant licensing and documented time in supervised practice. These requirements vary from company to company. Some personal skill are beneficial in this position include the ability to multitask, efficiently research information for clients, and explain research and information to clients. Career counselors usually work during regular business hours, and they may work part time or full time depending on the employer.
Career Counselor Tasks
- Maintain relationships with local employers in order to create links between students and companies that can lead to eventual employment or internship opportunities.
- Conduct mock interviews and assist students with the creation of resumes and cover letters.
- Counsel students on career planning and job search strategies while facilitating the creation of viable long-term career goals.
- Arrange job fairs, seminars, and lectures that will connect students to companies and provide valuable information regarding future career options.
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Serco attracts talent by shelling out the biggest paychecks in the area — the median in that office is $37K.
Popular Skills for Career Counselor
Survey results imply that Career Counselors deploy a deep pool of skills on the job. Most notably, skills in Training, Program Management, Human Resources, and Presentations are correlated to pay that is above average, with boosts between 3 percent and 13 percent. Skills that pay less than market rate include Oral / Verbal Communication, Case Management, and Leadership. Most people who know Presentations also know Assessment. Most people familiar with Counseling also know Training and Assessment.
Pay by Experience Level for Career Counselor
Median of all compensation (including tips, bonus, and overtime) by years of experience.
Career Counselors with more experience do not necessarily bring home bigger paychecks. In fact, experience in this field tends to impact compensation minimally. People who have worked for fewer than five years earn around $40K, and folks with five to 10 years of experience see a modestly higher median of $43K. Career Counselors who work for 10 to 20 years in their occupation tend to earn about $48K. Veterans who have worked for more than two decades do tend to make the most in the end; the median pay for this group is $58K.


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Take 3 softgels daily. Best taken prior to meals.
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This is a new build property
A stunning Grade II listed Regency Villa with adjoining contemporary accommodation, New Court is a luxury retirement development of apartments with balconies or terraces in the heart of Montpellier. Sumptuous lounges, a lively bistro and landscaped gardens offer impeccable facilities.
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Fabulous vintage yellow gold plated brushed metal oval shaped Unsigned Weiss Earrings with deeply etched stars each set with a sparkling crystal clear or Sapphire Blue tiny Rhinestones. These vintage unsigned Weiss beauties are weighty and well crafted securing with a clip back closure measuring 1 2/16 of an inch long by 7/8 of an inch wide.
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Featured property
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This wonderful family home is truly one of a kind! a bespoke design with substantial living/sleeping accommodation, this property caters superbly for all members of the family. with…
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Reduced by 50,000 from original marketed price for a quick sale! looking for a unique detached in a stunning setting? this is a contemporary and stylish family home, an individually…
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On a regional basis, $FLS said that Middle East and North America were better performers during major part of 2015, but growth was offset in 4Q15. Only Europe produced some improvement in activity levels in 4Q15 compared to the other three quarters.
Planned to give Apple AirPods as a Christmas present to my beloved one. Looks like I need backup plans as $AAPL is delaying the release..!!
When you fall hard, I think you stay there for a long time.. I am looking at you $FTNT! After it released the earnings, the share price slipped and is staying around $30 for a long time.
$FOXA just entered into a preliminary deal with Sky plc under which it will acquire all shares, or should I say remaining shares for a total value of $23 billion. The sleeping fox catches no poultry, but this fox just caught something that's a lot bigger than poultry.


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Record spinner and recording artist DJ Drama is taking his hustle back to the days before he made a franchise from out of his household Gangsta Grillz brand with the same mechanics applied on his upcoming Gangsta Grillz 3: The Album. For his third album, Drama put the fate of his project into his own hands, starting with the first single "Oh My." For the visual, Drama got Roscoe Dash, Fabolous and Wiz Khalifia together for his latest club anthem.
"I dropped it a couple of months ago, it was a record that I had to work" Drama told MTV. "I saw early on the feedback was really good. Thankfully I was able to shoot the video really quick with a lot of hectic schedules."
The clip for "Oh My" debuted on MTV JAMS last week and it immediately secured the highly acclaimed Jam of The Week spot on the network.
"The song is crazy, killing the clubs" Dram noted. "People loving the video. Derek Pike came with the movie theme, we shot it in Miami, Atlanta and New York. The video is like the limitless drug. Good looking out MTV JAMS."
Dram spent the weekend testing the waters with his new single and new mixtape featuring Young Jeezy on their reunion cut, The Real is Back, in Miami. According to Drama, the Atlanta residents were plotting the past few weeks on making a splash with the mixtape during the holiday weekend.
"The energy is crazy" Drama said referring to the mixtape release. "We been talking for like maybe three months. Since the beginning of the year we were going back and forth. We talked a lot and didn't want too much to get out there. I did a couple of tweets, I would give a couple of hints."
Dram also revealed how the title of the mixtape came about.
"We went over a lot of names" Drama said. "Two, three weeks ago we said we gotta make Memorial weekend. I think a lot of weekends, Memorial Day, All-Star it's important cause everybody will be in the same place. The fact it's me and Jeezy, it's been five years. It was really important. It worked out really good. I told him, I feel like it's even better doing it now cause it's much more organic. We just had been talking again and this time it felt like it really made sense. I knew when I got the music it was what n---as wanted to hear. I understand and appreciate the excitement when people here a project like Young Jeezy."


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Environmental Protection, Security and Armed Conflict
A Sustainable Development Perspective
Onita Das
Chapter 1: Introduction
Onita Das
Threats to the environment, in all their diversity, are a growing concern for societies, States and the international community as a whole. Environmental threats in relation to security and armed conflict are amongst them. These environmental pressures can, in some circumstances cause violent or armed conflict1 and such conflict can, in turn, cause devastating damage and destruction to the environment. This vicious circle can have both short-term and long-lasting impacts on not only the environment, but also on the communities that depend on it. Such environmental pressures and damage are no longer isolated incidents that affect only a small section of society. These environmental problems often extend beyond the territories of conflict-affected States, threatening the lives and livelihoods of people across communities and borders. In the context of this book, threats to ecosystems well known to environmental lawyers are addressed with reference to an aspect of human conduct - war and armed conflict - that has not received the attention it deserves.2 This is a challenging topic because of the cyclical relationship between environmental insecurity and human insecurity. As the United Nations Environment Programme (UNEP) recently reported, not only have violent conflicts been fuelled by natural resource exploitation and related environmental stresses3 but the environment itself 'continues to be a silent victim of armed conflicts worldwide.'4 With regard to what is meant by the 'environment', definition of this term varies.5 For the purpose of this book, the definition of 'environment' used is as described by UNEP:


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Browse other items in the Accent Furniture collection from Wayside Furniture in the Akron, Cleveland, Canton, Medina, Youngstown, Ohio area.
Toasty beige linen on a deeply grained, dark weathered hardwood frame with detail carvings and antique brass accent nails. Rolling casters, swivel, and adjustable height. Seat height will adjust from 20.5" to 24.5".
The Accent Furniture Kimalina Linen Accent Chair by Uttermost from Wayside Furniture. We proudly serve the Akron, Cleveland, Canton, Medina, Youngstown, Ohio area. Product availability may vary. Contact us for the most current availability on this product.
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How Getting Laid Off Led Me To Double My Salary and Follow My Entrepreneurial Dream
Update: thanks for all the amazing reactions to this post! I have loved reading all of your emails/tweets/direct messages and hearing so many stories about people who have been laid off and it turned out to be a blessing in disguise. If you want to check out my company Credo, it's right here.
I got laid off in September of this past year, somewhat unexpectedly. Things had been rough for a while as I moved to a new team internally after an acquisition and we tried to figure out how we supported my new role. Right after I moved over to the new team the GM in charge of that team left, which at the time felt like an omen and I came to realize later it was. When you lose the person who advocated to bring you to a new position, who has the vision for how that role will look, you're going to be in for some hard challenges that you might not be able to win.
Today I want to talk about exactly the steps I have taken over the last few months that have led me to double my salary short term, which is how I am currently financing my software marketplace which is also growing substantially month over month. Read more about How Getting Laid Off Led Me To Double My Salary and Follow My Entrepreneurial Dream …


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I feel SO much safer now. Having gone through these things five or six times now…
Rapiscan, makers of the naked-scanner technology used in many US airports, are in a lot of trouble. The TSA has accused them of falsifying their tests results on the software that supposedly protects flier privacy by rendering them as cartoon characters with suspicious blobs wherever the scanner's image-processor thinks they belong. If convicted, the execs at Rapiscan could go to jail, and the company would be assessed for stiff fines and be barred from any future government contracting. Here's more from Wired's Kim Zetter:
DHS has spent about $90 million replacing traditional magnetometers with the controversial body-scanning machines.
Rapiscan has a contract to produce 500 machines for the TSA at a cost of about $180,000 each. The company could be fined and barred from participating in government contracts, or employees could face prison terms if it is found to have defrauded the government.
It's not the first time Rapiscan has been at the center of testing problems with the machines. The company previously had problems with a "calculation error" in safety tests that showed the machines were emitting radiation levels that were 10 times higher than expected.
It turned out the company's technicians weren't following protocol in conducting the tests. They were supposed to test radiation levels of machines in the field 10 times in a row, and then divide the results by 10 to produce an average radiation measurement. But the testers failed to divide the results by 10, producing false numbers.
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I feel SO much safer now. Having gone through these things five or six times now…
"…that supposedly protects flier privacy by rendering them as cartoon characters with suspicious blobs wherever the scanner's image-processor thinks they belong" … " the machines were emitting radiation levels that were 10 times higher than expected"
Is that why you have boobs on the back of your head?
Cory, I realize that you're quoting the Wired article, but I'm confused:
They were supposed to test radiation levels of machines in the field 10 times in a row, and then divide the results by 10 to produce an average radiation measurement. But the testers failed to divide the results by 10, producing false numbers.
If they failed to *divide* by 10, then then reported numbers would be 10 times higher than the actual level of radiation – they're reporting the sum, not the average. Which means actual exposure should have been 1/10 of what the techs were reporting.
Now if they'd measured once and divided by ten, then you'd have ten times the radiation. Did Wired screw up the report?
Since this is in a section about an earlier mistake, not the current one, I assume it is right, just pointing out that they have a record of screwing up the tests even when the results made them look bad.
They reported radiation levels 10x greater than expected due to the error. In reality they were the expected radiation levels.
Gotcha – thanks.
The scanners don't use radiation. I know this because on two separate occasions, TSA agents have told me so.
Three possibilities
– You were actually going through one of the terahertz microwave ones, not the X-rays
– The TSA agents were lying, either because they'd been trained to do it or figured it out themselves
– The TSA agents didn't have a bloody clue, but had heard their superiors claim the new machines didn't use radiation.
Terahertz *what*?
And I am certain Secretary Michael Jerkoff knew nothing of this.
So in about ten years or so I imagine all those TSA agents that stand next to theses things for 8 hours at a time will be dieing with huge tumors…. My only question: Will their sacrifice come soon enough to prevent my death?
Those are the guys I feel bad for as well. They're just trying to do their job while these black boxes emit levels that someone at some point said were safe. Meanwhile the X-ray guy goes behind the wall to flip the switch at the dentist…
with any luck they'll all be sterile
Wait, they actually named their company Rapiscan? That's the worst name in the history of bad corporate names.
I'd always assumed that that was a fake name used to insult them. Like "Sheeple", "Demon-crats" "Repugnantcans" and the like.
At least there's some truth in advertising now.
The epithet "pornoscanner" is actually benign compared to calling their devices "Rapiscanners".
(Seriously, they couldn't stick a fucking "d" in there?)
Or their one-time product idea of a rapiscanner which began with a short intervew by an analyst … that was called the Anal-Rapi-Scanner.
Just be sure to pronounce it properly: "Rape-y-scan."
Their income basically guaranteed no matter what their name was. They could just go with whatever was cheapest.
They named it that back before the TSA started sexually assaulting travellers who didn't want to go through the rape-i-scan.
Am I the only one who sees "Rapiscan" and thinks the first syllable must be pronounced with a long A?
No, I came here to say the same. You beat me to it.
Did Charles Dickens name the company? is all I have to add.
I, in fact, always assumed that "Rapiscan" was a parody name, & was always uncomfortable about the appropriation of the term "rape."
The fact that it actually is their name– well, insert the .gif of "mind blown" of your choice here.
You're not alone.
Welcome to three years ago.
Did you ever find yourself unsure which asshole to root for?
DHS or the profiteers…. sigh
decisions decisions…
Dear Goddess of Schadenfreude,
Please make sure Michael Chertoff gets imprisoned because of this.
I always opt for the full-contact pat-down. Not because of naked-scan issues but because of these-things-never-get-calibrated issues. So I stand there while a woman wearing rubber gloves pats around my thighs and breasts. While they've never been anything but professional about it, it's good to know I chose the less porn-y version of the options.
"I had a guaranteed government sale with the Rapiscan 209. Renovation program. Spare parts for 25 years. Who cares if it worked or not?" – Dick Jones
You have 5 seconds to get naked.
Cartoon characters. Can I choose Bugs Bunny? He always gets the cool lines.
Can we all enjoy a moment of appreciation for this happening to a company who's name is verbalized as "Rape Scan".
Does this accusation have anything to do with (some) scanners being replaced last month?
Now that's what I call 'hiding your package'.
I am beside myself with both horror and uncontrollable laughter.
karma is a b*tch
Good to know all that time and dignity has been scarificed for, …um, nothing!
Comments are closed.


text: The Windows 7 Versions: What You Need to Know Microsoft provided PCMag.com with documents that describe the different versions of Windows 7 in unprecedented detail. Inside, we tell you probably more than you care to know about the new Windows 7 versions. Contents The Windows 7 Versions: What You Need to Know Windows 7 Starter Windows Home Premium Windows 7 Professional Windows 7 Enterprise Windows 7 Ultimate Windows 7 Home Basic Windows 7 Ultimate VIEW ALL PHOTOS IN GALLERY What's new here? Well, nothing, and everything. This is the mondo edition of Windows 7. According to Microsoft, all of the features in the other versions, both for business and consumer, are wrapped up in the Ultimate edition of Windows 7. Will Windows 7 Ultimate be sold at retail? Well, Microsoft says no. But check out the last sentence of this statement: "When we conducted research to determine which features customers value in each SKU, we found that some customers wanted a version of Windows on their PCs that offers every feature and experience possible," Microsoft said. "Therefore, OEMs will be able to preinstall Windows 7 Ultimate on new machines, and we may license Ultimate in retail channels during certain promotional periods." So what does this mean? You may not see Windows 7 Ultimate in retail yet. Otherwise, it will only be available through the update process, described in the first section of this article. You know, Windows Ultimate Extras basically stunk. Is Microsoft using the Extras plan again as a way of selling Windows 7 Ultimate? Nope. Windows 7 Ultimate will have no Extras attached to them. "Our new approach to planning and building Windows doesn't have the capacity to continue to deliver features outside the regular release cycle," Microsoft says. "While our core development team is focused on building the next release, our sustained engineering team is focused on updates to existing features. As a result we don't plan to create Ultimate Extras." Next: Windows 7 Home Basic >


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January 7, 1980
JUANITA M. KREPS, Secretary of Commerce, ROBERT T. HALL, Assistant Secretary of Commerce and PHOENIX STEEL CORPORATION
Plaintiff, Lukens Steel Company (Lukens), has sought review under § 10 of the Administrative Procedure Act, 5 U.S.C. §§ 701-6, of the decision of the Economic Development Administration (EDA) to guarantee ninety percent (or $ 29,039,400) of the rental obligation to be incurred by Phoenix Steel Corporation (Phoenix) under a proposed "leveraged lease" of capital equipment to be used in the modernization of its steel plate production facilities.
The EDA extended its offer of assistance to Phoenix pursuant to the Public Works and Economic Development Act (the Act), 42 U.S.C. § 3211 Et seq. and regulations promulgated under the Act for a program of assistance to the steel industry, 43 Fed.Reg. 16360 (April 18, 1978). Lukens contends that the EDA's approval of the lease guarantee was unlawful in that the EDA:
(1) violated the unfair competition provision of the Act, § 702 (42 U.S.C. § 3212);
(2) violated the 15% Contribution provision of EDA's regulations, 13 CFR § 306.14;
(3) erroneously concluded that Phoenix does not have access to normal markets and cannot generate needed funds internally; and
(4) erroneously concluded that Phoenix can reasonably be expected to repay the loan.
This matter was previously before Judge Broderick on cross-motions for summary judgment. He denied the motions, remanding the matter for further consideration by the EDA. Lukens v. Kreps, 477 F. Supp. 444 (E.D.Pa.1979). Judge Broderick undertook a two-phase analysis of the EDA's action, first considering the EDA's interpretation of the unfair competition provision of the Act, § 702, and then reviewing the administrative record to determine whether the agency's actions, findings, and conclusions in connection with the challenged assistance to Phoenix were arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. 477 F. Supp. at 450-51.
Section 702 of the Act provides
No financial assistance under this chapter shall be extended to any project when the result would be to increase the production of goods, materials, or commodities, or the availability of services or facilities, when there is not sufficient demand for such goods, materials, commodities, services, or facilities, to employ the efficient capacity of existing competitive commercial or industrial enterprises.
The EDA considers the requirements of § 702 to be met if proposed financial assistance will not result in an increase in aggregate steel production when measured against an historical peak production year. Judge Broderick found this interpretation of § 702 to be a reasonable one. 477 F. Supp. at 451-56.
He went on to review the administrative record to determine whether the EDA's offer of assistance to Phoenix was arbitrary and capricious according to the test defined in Camp v. Pitts, 411 U.S. 138, 93 S. Ct. 1241, 36 L. Ed. 2d 106 (1973) and Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S. Ct. 814, 28 L. Ed. 2d 136 (1971). The EDA's actions were found not to be arbitrary and capricious, with two exceptions. The court remanded the matter to the EDA for further consideration of these two issues the fifteen percent equity contribution requirement, and the effect of one of the components of the project (specialty finishing equipment) on the production of stainless steel. The EDA reconsidered these two issues, and reaffirmed its decision to guarantee ninety percent of the rental cost to be incurred by Phoenix.
Phoenix and the federal defendants have placed the new administrative record before us and seek summary judgment affirming the agency's decision. Lukens has filed a cross-motion for summary judgment raising, in addition to the equity contribution and stainless steel issues, the new argument that Phoenix may not receive federal assistance for the vacuum degassing equipment because the project has been completed with other funds. For the reasons discussed below, we will grant summary judgment for Phoenix and the federal defendants.
Lukens has argued that the agency's actions on remand are "post hoc rationalizations" which the court must "view critically". This argument misconstrues Overton Park, supra, 401 U.S. at 420, 91 S. Ct. 814. In that case the Supreme Court ordered the matter remanded because, among other things, the agency had not rendered any explanation of its decision. Among the possible courses of action the Court outlined was the furnishing of such an explanation by the administrator. The question upon which the Court commented was the weight to be given an administrator's Non-contemporaneous explanation of action he had taken earlier, not the weight to be accorded a contemporaneous decision actually made on remand, when an agency undertakes to reconsider substantive issues. The circumstances of this case, however, are significantly different. Here, pursuant to the Court's remand order, the EDA undertook to consider the two remanded issues, and to do so in part on the basis of facts not before it earlier. The resulting agency determinations, embodied in new action memoranda (XVII A.R. 2923-33, 2976-86),
are not "post hoc rationalizations" at all, but explanations of the agency's reasoning prepared contemporaneously with the EDA's determinations on remand. As such, they are subject to the "arbitrary and capricious" and "rational basis" principles discussed at length in the Court's earlier opinion. 477 F. Supp. at 450-51.
While the Act is silent as to equity contribution requirements on the part of applicants for lease guarantee assistance, EDA's regulations, at 13 CFR § 306.14, provide:
§ 306.14 Equity capital requirements.
The Act requires a minimum equity contribution only for direct fixed asset loan projects. However, all projects should be supported by equity capital to the following extent:
(d) In EDA lease or lease-purchase guaranty projects, the applicant should have expended an amount equal to not less than 15 percent of the value of the assets to be leased. Such expenditures shall be for either leasehold improvements or the types of fixed assets which can be allowable project costs under § 306.12. If applicant is not paying for needed leasehold improvements or fixed assets, its working capital should be augmented instead. Cash for the expenditures required by this subsection shall be obtained by applicant either from equity capital or a standby loan.
The EDA originally determined that a 15% Contribution of equity capital was applicable to the Phoenix project and found it to have been satisfied by an augmentation of equity capital provided by the conversion to equity of a $ 7.5 million debt owed by Phoenix to Creusot-Loire, a French steel company which owns a controlling interest in Phoenix. The EDA initially concluded that "On June 30, 1978, after applying for EDA assistance, Phoenix augmented its working capital by $ 755 million (sic) . . ." (VII A.R. 1140). Judge Broderick found this conclusion to be unsupported by the record, since the record demonstrated that this transaction was actually completed before Phoenix applied for EDA assistance. He therefore remanded the matter to the EDA for further consideration as to whether a transaction consummated before the submission of the application for assistance might satisfy the 15 percent equity contribution requirement. 477 F. Supp. at 461-62.
On remand, the EDA clarified its interpretation of § 306.14 as follows:
Specifically, the language (of § 306.14) "should be supported" and "should be augmented" indicates that this regulation is not mandatory, but merely evidences a policy that EDA-assisted entreprises (sic) generally should not be purely government-funded, but should also in appropriate cases manifest involvement or commitments of private equity investors or commercial lenders which are reasonably related in time and effect to the EDA-assisted project. The commitment of these outside parties can contribute to the viability of the enterprise, in general, and the project in particular.
(XVII A.R. at 2926-27). The EDA regards the requirements of § 306.14 to be satisfied by a contribution to the overall modernization project; a direct expenditure for the leased equipment is not required. Furthermore, the agency does not regard the timing of the contribution to be crucial, so long as it is related to the modernization program:
The precise date of the transaction is not crucial, however . . . so long as it is reasonably related to the EDA assistance. . . . The regulation and the Guidelines do not suggest the parameters (sic) of any proximity test. In this case, it is reasonably clear that the Creusot-Loire $ 7.5 million infusion was closely related to the Phoenix modernization program, of which the EDA-assisted projects constitute a significant portion.
The EDA therefore concluded that the $ 7.5 million Creusot-Loire contribution was an augmentation of working capital satisfying § 306.14:
This chronology illustrates that the infusion of the $ 7.5 million, the conversion process and application process proceeded simultaneously, and that a focus on a particular date, which is not required by any regulation, would be misleading and contribute nothing to any private-commitment policy. The $ 7.5 million Creusot-Loire infusion clearly constituted an augmentation of Phoenix's working capital. The original 506 is thus confusing in mentioning the date June 30, 1978 with no explanation, but the substance of the transaction more fully amplified herein, fully satisfies the requirements of the regulation as applied to this case. The Creusot-Loire infusion thus fully satisfies the Letter of § 306.14 of the Regulations and Guidelines, as well as the EDA policy behind them.
Lukens does not dispute that the $ 7.5 million Creusot-Loire transaction was an augmentation of working capital. It argues, however, that the timing of the transaction establishes that it bore no relation to the Phoenix modernization project, since the $ 7.5 million addition to working capital was dissipated by March, 1979 when EDA approved the lease guarantee. It is apparent that Lukens is urging an interpretation of § 306.14 which differs from that set forth by the EDA on remand. Even if Lukens' suggested interpretation is a reasonable one, we may not substitute it for a reasonable interpretation by the agency. Budd Co. v. Occupational Safety & Health Rev. Com'n., 513 F.2d 201, 204-05 (3d Cir. 1975). While there may also be other reasonable interpretations, we find the EDA's interpretation of § 306.14 to be reasonable. Upon review of the administrative record, we find a rational basis for the EDA's determination that § 306.14 was satisfied by the $ 7.5 million augmentation of working capital resulting from the Creusot-Loire transaction.
In its previous opinion, the court approved EDA's use of aggregate steel production figures in determining whether the equipment to be leased would bring about an increase in production prohibited by § 702 of the Act. 477 F. Supp. at 457. A rational basis was found in the record for the EDA's conclusion that the heavy plate and vacuum degassing projects would not result in a significant increase in aggregate production of steel plate. 477 F. Supp. at 457. The court did not find adequate support in the record, however, for the EDA's decision to support the special finishing project, since the agency had not given appropriate consideration to the project's effect on the conversion of stainless steel.
477 F. Supp. at 460.
On remand, the EDA re-evaluated production figures and concluded that the proposed equipment will not result in a significant increase in aggregate steel plate production, including stainless steel conversion:
As the March 16, 1979 opinion more fully sets out, the year 1973 represents the recent historic peak production year of Phoenix, for all plate productions, and 1981 is the year in which EDA financed equipment is projected to be in place. A comparison of total output (conversion and plate production) for 1973 and 1981 shows a 15,257 ton or six percent increase in total projected 1981 Phoenix output of plate, including conversion, over the historic peak output year of 1973. The time comparison is the same one made in the ISD final March 16, 1979 Section 702 opinion on Phoenix and clearly shows that, assuming the increase is causally related to the EDA projects, EDA financial assistance "will not result in a significant increase in production or services that have heretofore been available in the area, because its purpose is to assure the retention of existing capacity and employment." (footnotes omitted).
(XVII A.R. at 2880-81). The increase in stainless steel conversion, measured separately against current production levels, was also found to be insignificant:
Phoenix is currently converting stainless steel without EDA assistance and utilizing its existing capacity in quantities similar (on an estimated annualized basis) to those it projects for 1981. The projected 3337 ton increase (1979 compared with 1981) in conversion tonnage would have little or no measurable effect on competitors given the size of the stainless steel market of approximately 115,000 tons annually for the 1979-81 period and the nature of the competitors. Moreover, the fact that 1973 was not Phoenix's peak stainless conversion year underlines the necessity of analyzing only aggregate output figures, for, as the figures below indicate, Phoenix did relatively little stainless conversion at all until 1977 or 1978. This is obviously a function of Phoenix-determined product mix alone rather than any capacity-related production constraints, since the necessary specialty finishing equipment was in place and was and is being used on Phoenix's own plate products, as well as stainless conversion.
On the basis of a review of the original record and the record on remand, we find a rational basis for the EDA's conclusion that the special finishing project will not result in significant increase in the production of stainless steel.
Lukens again raises the argument that, because the special finishing project will add a new furnace that will operate along with existing equipment, it must necessarily result in increased productive capacity. We find no reason to reconsider Judge Broderick's conclusion that, because special finishing capacity is limited by factors other than the furnace, there is a rational basis for the agency's determination that the special finishing project does not violate § 702 of the Act. See 477 F. Supp. at 444.
Section 202(b)(4) of the Act, 42 U.S.C. § 3142(b)(4) requires that an applicant be unable to obtain private financial support in order to qualify for EDA assistance. The court concluded that the original administrative record provided a rational basis for the EDA's conclusion that this requirement has been satisfied. 477 F. Supp. at 462. Lukens now seeks reconsideration of this finding on the basis of what it considers to be new information that Phoenix has completed the vacuum degassing project without EDA assistance. Phoenix concedes that it has expended working capital to complete this part of the overall project. (Phoenix' Memorandum in Opposition to Lukens' Renewed Motion for Summary Judgment at 25).
We find no basis for reconsideration of the conclusion that there was a rational basis for the EDA's determination that other financing was unavailable for Phoenix' modernization program. Phoenix's 1978 Annual Report, which was published on April 6, 1979, disclosed that the vacuum degassing project was under construction. See XVII A.R. 3128. The EDA was aware before March 19, 1979, when it approved the loan guarantee, that Phoenix anticipated completion of the vacuum degasser in 1979. XVII A.R. 2924-25. The fact that Phoenix used working capital as interim financing for the vacuum degassing equipment does not compel the conclusion that there is no rational basis for the EDA's determination that private financing was not available for Phoenix' modernization program.
For all of the above reasons, we grant defendants' motions for summary judgment, and deny plaintiff's motion for summary judgment.
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Date Posted: Friday, September 30th, 2016
Categories: Delaware Health and Social Services Kent County New Castle County News Sussex County Weekly Message
Wilmington, DE – In a guest weekly message, Department of Health and Social Services Secretary Rita Landgraf discusses the Markell Administration's efforts to create employment opportunities for people of all abilities through initiatives like the Pathways to Employment program, and thanks employers who embrace the skills and talents of all of our people.
Date Posted: Friday, September 23rd, 2016
Categories: Kent County New Castle County News Sussex County Weekly Message
Wilmington, DE – In his weekly message, Governor Markell encourages all Delawareans to take time now to prepare for natural disasters and other emergency situations, and reviews new resources available to assist them through the interactive website www.PrepareDE.org provided by state public health and emergency management agencies.
Date Posted: Thursday, August 11th, 2016
Categories: Public Service Commission
FOR IMMEDIATE RELEASE Heather Contant, Ombudsman 302-736-7564, email@example.com Department of State Accepting Comments on Regulations until October 1st Dover, DE (August 8, 2016) – The Delaware Department of State held three public hearings last week, one in each county, as part of Governor Jack Markell's effort to modify or eliminate regulations that may be outdated […]
Date Posted: Monday, July 18th, 2016
Categories: Office of Governor Markell
Governor Jack Markell today announced that his Chief of Staff, Michael A. Barlow, will leave the administration to return to private law practice, joining the firm of Abrams & Bayliss LLP. The Governor has named Drewry N. Fennell, who has been Deputy Chief of Staff since 2014, as his new Chief of Staff, providing a seamless transition in staffing for the remainder of the Governor's term.
Date Posted: Friday, July 1st, 2016
Categories: Kent County New Castle County News Sussex County Weekly Message
Wilmington, DE – In his weekly message, Governor Markell highlights the work the state has done to increase opportunities for Delawareans.
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