H.R. 718: To reinstate the Interim Management Strategy gains traction....

[hatrasfevr]

H.R. 718: To reinstate the Interim Management Strategy governing off-road vehicle use in the Cape Hatteras...in 2 days our legislators got the bill in and out of the National Resources Committee and it’s now in the Courts and Competition committee. (That’s good)

If you really want the beaches open then call them all and explain that this is NOT a development vs. environment issue. This is a Recreation vs. Segregation issue.

Access to our lands and all the activities it provides has been stripped form us. The Judge had no right to act on the pseudo-science justifications of a fringe element interest group to restrict recreational access to a National RECREATIONAL Park. It's a recreational park, created for the purpose of outdoor activities, and it is not and never has been a wild life refuge, that's why we have Pea Island. All Hatteras Island villages and Ocracoke Island depend on this National Recreational Park being open to (humans) the public. The economic engine of these islands is tourism and the loss of this tourism will spell disaster for the residents. From the beginning….access to the beaches was promised by the National Park Service.

Here is a list of all the members and numbers you'd need:
Information on
House Subcommittee on Courts and Competition Policy

Contact Information

Majority (Democrats)
Minority (Republicans)
Committee Office:
Rayburn House Office Building 2138
Rayburn House Office Building B-351C
Committee Phone:
202-225-3951
202-225-5741
Committee FAX:

202-225-3673
Committee Email:
Not Currently Available (Entire Committee)
Committee WWW Homepage:
http://judiciary.house.gov/about/subcommittee.html (Entire Committee)
Parent Committee:
House Committee on the Judiciary
Majority Members (Democrats)
Member Nameemocrats
DC Phone
DC FAX

Hank Johnson (D-GA) [Chairman]
202-225-1605
202-226-0691

John Conyers, Jr. (D-MI)
202-225-5126
202-225-0072

Rick Boucher (D-VA)
202-225-3861
202-225-0442

Robert Wexler (D-FL)
202-225-3001
202-225-5974

Charles A. Gonzalez (D-TX)
202-225-3236
202-225-1915

Sheila Jackson-Lee (D-TX)
202-225-3816
202-225-3317

Melvin L. Watt (D-NC)
202-225-1510
202-225-1512

Brad Sherman (D-CA)
202-225-5911
202-225-5879
Minority Members (Republicans)
Member Name: Republicans
DC Phone
DC FAX

Howard Coble (R-NC) [Ranking Member]
202-225-3065
202-225-8611

Jason Chaffetz (R-UT)
202-225-7751
202-225-5629

F. James Sensenbrenner, Jr. (R-WI)
202-225-5101
202-225-3190

Bob Goodlatte (R-VA)
202-225-5431
202-225-9681

Darrell Issa (R-CA)
202-225-3906
202-225-3303

Gregg Harper (R-MS)
202-225-5031
202-225-5797



Donate to the NCBBA Legal Fund
www.ncbba.org

Mike Metzgar
North Carolina Beach Buggy Association
Director, #5559, Life Member
Mike.Metzgar@NCBBA.Org

[Plug]

Listen, we have some ammo now. What happened in O'coke is a blatant illustration of why this bill needs to pass. Let your congressmen know about it. By the automatic extensions the consent decree allows thousands of innocent civilians and the economy of many communities to suffer for crimes they did not commit. It's just bad, bad, broken regulation no matter from what perspective it is viewed.

The vandalism and expansion of the closures proves that THE CONSENT DECREE IS NOT A VALID WAY TO MANAGE ORV USE.

The greedy, selfish, gloating, arrogant sunzabiches pushed it too far and have tied themselves a noose. LET'S HANG THEM WITH IT !!!

Write your congessmen. Demand they support the bill by signing on as a co-sponsor. We need some Dems with their names on this bill. TELL THEM WHAT THIS BILL IS DOING TO THE ECONOMIC WELFARE OF DARE COUNTY. As green crazy as this society is right now ECONOMICS is front and center.

Talking about economics Audobon is hurting. Donations are way down. They are selling off properties to finance the organization. You can bet in these tough times they will prioritize their battles and ongoing legal battles will lose funds before fatcats lose their salary. Let's see how important CHNSRA is to them.

[longcaster]

The best write up of the history and the laws. This was done by Scot Lambrtght,(kingspointer on some boards) Feel free to use what you can;

Dear Honorable Heath Shuler,
Thank you for responding to my letters, in which, I have tried to bring to your attention, the current serious issue with regards to Cape Hatteras National Seashore Recreational Area (CHNSRA) that faces American citizens, and more importantly, the economies of Dare and Hyde Counties, North Carolina. This crisis is important to me, as well as your reply. Once again, thank you for your time and consideration in this matter. As stated, you will note that I have included “Recreational” in the title of CHNSRA, for this is what the enabling legislation calls out, as you will clearly see, specifically mandated by Congress.

This issue, in which I write to you, is more than an “Access” debate with regards to Off-Road Vehicles (ORV’s) versus protecting CHNSRA “Resources and Values.” It is an issue of interpreting and following the laws verbatim compliance. What good are laws if we as United States citizens do not uphold and follow them? By not following the established laws that Congress has set out verbatim, it threatens our very existence as a democracy. I too, as you, am confident that a management plan can be drafted to take into account the needs for protection of the CHNSRA “Resources and Values” as well as allowing for the “Purpose” of public recreational access in accordance with what CHNSRA was established for in its enabling legislation.

With all due respect, it is disconcerting to me upon reading your reply, it is evident your sources of information are not quite true and correct. I have no intention of debating each and every item of your response, however, it should be noted that the CHNSRA Interim Protected Species Management Strategy Plan (Interim Plan) was officially signed out in July 07’, and had only one (1) month of implementation during April 08’ vice “years past” as you state. The development and approval of the Interim Plan followed the National Environmental Policy Act (NEPA) law, which included an extensive Environmental Assessment (EA), inter-agency consultation, public review and comment period, and finalized with a United States Fish and Wildlife Service (USFWS) Biological Opinion (BO) and Finding of No Significant Impact (FONSI) as required by Endangered Species Act (ESA) and NEPA statutes. In addition, there are no native wildlife species that reside in CHNSRA that are endangered as you state in your letter, except the Buxton White-footed Mouse and Sea Beach Amaranth; native Loggerhead and Green Sea turtles are threatened. Though not native to CHNSRA, the Endangered Leatherback, has upon occasion, been known to sporadically produce a nest. Plovers are regionally threatened, and a few of the rest known migratory birds are species of concern in the great State of North Carolina but do not qualify for ESA protection.

In October 07’, the Interim Plan was challenged to be “arbitrary and capricious” by the Southern Environmental Law Center (SELC, et. al.) and was effectively allowed by the Court and Federal Agencies to be modified by the “Consent Decree” without going through the NEPA process. Contrary to what you read, not all “Parties” (i.e. the Public) had any opportunity for review and comment. These new precedent setting environmental rule modifications, failed to take into consideration effects that may “significantly” affect the quality of the human environment, and quite frankly, in accordance with NEPA, “due to the “Significance” should have required a supplemental Environmental Impact Study (EIS) prepared per 40CFR1502.9 and re-submitted on the Federal Register for public comment and review as required by law. Contrary to your sources, there has been “Significant” economic hardship due to this prejudice and new precedent setting environmental rules. The draconian buffer zones authorized in the “Consent Decree” were based upon protocols developed for CHNSRA by the United States Geological Survey Office (USGS) in which, have yet to be “Peer Reviewed” or published in accordance with USGS Peer Reviewed Policy Manual. This is not in accordance with NEPA or ESA law. Furthermore, the Department of the Interior (DOI), National Park Service (NPS) and the Federal Court failed to adhere to the Federal Administrative Procedures Act (FAPA) with regards to what considerations should have been taken into account prior to allowing a “Consent” arbitration agreement outside the NEPA process. The public has been shut out.

Hence the proposed House Bill H.R. 6233. The purpose of the bill is to immediately return back to the lawful NEPA process approved Interim Plan, and dispose of the “controversial” and “precedent setting” Consent Decree to restore “Status Quo”, while the NPS and the DOI Secretary appointed Rules Negotiated Advisory Committee (REG-NEG) can come up with and approve a final plan. As a voting member of the House Natural Resource Subcommittee on Parks, Forests and Public Lands, you are a vital member in this process, and should be aware of all current statutes and policies to make this critical decision. By reading your response, it is clear to me that you do not have that information. I apologize for the length of this letter, but this issue is not a clear and cut case as it seems on the surface. The purpose of this letter and attachment is to provide you the required information, and put into “hierarchy of authorities” order, so that you can make the best informed decision with regards to H.R. 6233. This is important and the public is counting on you.

Before one can make an informed decision with regards to this issue, they must become familiar with the history of the Outer Banks, current applicable Federal law, and NPS Management Policies. They are, but not limited to, The United States Constitution Article IV, Section 3, Clause 2; CHNSRA Enabling Legislation; Organic Act; General Authorities Act, The “Redwood Amendment”; NPS Management Policies 2006 Handbook; Federal Administrative Procedures Act (FAPA); National Environmental Policy Act (NEPA); Migratory Bird Treaty Act (MBTA); Endangered Species Act (ESA).
I believe the true problem herein arises in the fact that people do not clearly understand CHNSRA enabling legislation, the fundamental “Purpose” of CHNSRA, and the specific mandates that previous Congress’s have intentionally spelled out to protect and preserve our national treasure. Before the enabling legislation, one has to go back into the early documented discussions of the seashore and why it was created. The concept for creation of CHNSRA dates as early as July 21, 1933. Frank Stick, during the midst of the depression when economic times were deplorable, envisioned “A Coastal Park for North Carolina and the Nation” to stimulate the local economy. This park he argued was “for the satisfaction of the esthetic and recreational need of the people, for the conservation of the migratory wildlife and for a better defense of an open and unprotected coastline in the event of war”. He also envisioned that the “economic benefits of tourism would be enormous, and employment would be given to thousands”, offsetting the depression’s stranglehold on the economy. It is ironic, that 75 years later, I am writing to you with this country in the midst of a recession, and on the verge of a depression. The prejudice of the Consent Decree is exacerbating the current economic crisis that Hatteras Island currently faces.

CHNSRA is truly an extraordinary and controversial story. It happens to be our nation’s first and, still to this day, only National Seashore Recreational Area that is by law part of it’s name. CHNSRA enabling legislation is the only National Park System asset which contains unique and explicit guidance mandated by Congress that should prevail over NPS Service wide policy. That is to say, that current Federal law shall allow priority and “some degree of deference by the Secretary’s reasonable interpretation” of the “Purpose” for specific areas mandated by Congress over NPS interpreted Service-wide policy of primary protection for impairment of “Resources and Value’s.” This, stemming back to the very concept of CHNSRA, in my opinion, is the heart of the argument.

From the NPS Management Policies 2006 Handbook, in the introduction section under Hierarchy of Authorities, it states in part “It is especially important that superintendents and other park staff review their park’s enabling legislation to determine whether it contains explicit guidance that would prevail over Service-wide policy.” In the most recent United States Supreme Court decision Case No. 06-340. 2007; “National Association of Home Builders (et. al.) v Defenders of Wildlife (et. al.)”, the court re-affirms this position.

I am not suggesting that ESA or MBTA do not apply to CHNSRA, nor am I suggesting that we should not protect CHNSRA “Resources and Values”. What I am arguing and insisting is that (“The Purpose”) CHNSRA specific recreational areas (16USC459.a.2 “Except for certain portions of the area….), and the guaranteed rights (16USC459.a.1) of the legal residents to earn a livelihood by fishing within the boundaries as further defined by 36CFR7.58.(6), shall by law take precedence over protection of the seashore’s “Resources and Values”. The Constitution of the United States of America does not grant flora and fauna rights over human rights, specifically when Congress has mandated in CHNSRA enabling legislation otherwise. When one closes down a ramp(s) and takes away right-of way, how are local resident’s to “earn a livelihood by fishing within the boundaries” which is guaranteed by Congress in the enabling legislation? The legal residents make their living during the peak months of the summer, which happens to be the very crucial time when all the ramps/access are severely restricted by the draconian “Consent Decree” new precedent setting environmental rules that they had no say in.

As such, I have attached (Enclosure 1) a distillation of CHNSRA Enabling Legislation hierarchy of authorities that one must review verbatim compliance, and understand prior to making an informed decision. Please take the time to review so that you can become familiar with the applicable statutes and management policies.

The NPS had worked hard with the public to develop and authorize the Interim Plan. Many tax payer dollars were spent during this process. The Interim Plan followed the NEPA process to the letter of the law, and it more than adequately protected the Seashores “Resources and Values”, yet it provided some degree of deference by the DOI Secretary’s reasonable interpretation allowing for the “Purpose” which is public recreational access and the rights of the legal residents to earn a livelihood by fishing within the boundaries. Please do not allow a biased Federal Judge and Special Interest Groups to illegally take away our land. Please read, understand and uphold the laws and policies of the United States of America. Please co-sponsor and support house bill H.R. 6233. Please return our CHNSRA management back into the hands of the National Park Service, and allow the legal residents of the villages to earn a livelihood as mandated by law.

I prevail upon your sense of justice and right, and pray you will take the immediate critical action that is needed to uphold the laws of the United States, protect the heritage of the Outer Bank’s, protect North Carolina’s Dare and Hyde Counties economies, and the public’s right of access to our Seashore.
Respectfully Submitted,

[longcaster]

The legal case;

CHNSRA ENABLING LEGISLATION HIERARCHY OF AUTHORITIES
Listed below is a distillation of the “Hierarchy of Authorities” and argument for why we should go back to the previous lawful NEPA approved CHNSRA Interim Protected Species Management Strategy Plan. The current Federal laws and NPS Management Policies mandate and allow the exception as discussed above.

1) United States Constitution, Article IV, Section 3, Clause 2 – “The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular state.”

2) 16USC459 CHNSRA Enabling Legislation (In Part) – Specifically mandates that “.said area shall be, and is, established, dedicated, and set apart as a national seashore recreational area for the benefit and enjoyment of the people and shall be known as the Cape Hatteras National Seashore Recreational Area..”

3) 16USC459a.2 (in part) – Specifically mandates that “Except for certain portions of the area, deemed to be especially adaptable for recreational uses, particularly swimming, boating, sailing, fishing, and other recreational activities of similar nature, which shall be developed for such uses as needed, the said area shall be permanently reserved as a primitive wilderness and no development of the project or plan for the convenience of visitors shall be undertaken which would be incompatible with the preservation of the unique flora and fauna or the physiographic conditions now prevailing in this area..”

4) 16USC459a.1 (in part) – Specifically mandates that “That the legal residents of villages referred to in section 459 of this title shall have the right to earn a livelihood by fishing within the boundaries to be designated by the Secretary of the Interior,..”

5) 36CFR7.58.(6) (in part) – Specifically identifies boundaries “A zone is established for the protection and enhancement of recreational sport-fishing commencing at Beach Access Ramp No. 22 and continuing south and west along the ocean shore, including Cape Point (Cape Hatteras), to Beach Access Ramp No. 30. Within this zone commercial fishing, as specified in the Act of August 17, 1937 (50 Stat. 669), is permitted..”

6) 16USCa.1 (in part) - Congress further reaffirms, declares, and directs that the promotion and regulation of the various areas of the National Park System, as defined in section 1c of this title, shall be consistent with and founded in the purpose established by section 1 of this title, to the common benefit of all the people of the United States. The authorization of activities shall be construed and the protection, management, and administration of these areas shall be conducted in light of the high public value and integrity of the National Park System and shall not be exercised in derogation of the values and purposes for which these various areas have been established, except as may have been or shall be directly and specifically provided by Congress.

7) NPS Management Policies 2006 handbook, Introduction; “Hierarchy of Authorities” (in part) - “It is especially important that superintendents and other park staff review their park’s enabling legislation to determine whether it contains explicit guidance that would prevail over Service-wide policy.”

8) NPS Management Policies 2006 handbook, Para 1.4.4 (in part) - The impairment of park resources and values may not be allowed by the Service unless directly and specifically provided for by legislation or by the proclamation establishing the park. The relevant legislation or proclamation must provide explicitly (not by implication or inference) for the activity, in terms that keep the Service from having the authority to manage the activity so as to avoid the impairment.

9) NPS Management Policies 2006 handbook, Para 8.1 (in part) - The 1970 National Park System General Authorities Act, as amended in 1978, prohibits the Service from allowing any activities that would cause derogation of the values and purposes for which the parks have been established (except as directly and specifically provided by Congress)

Enclosure (1), Sheet 1 of 4
CHNSRA ENABLING LEGISLATION HIERARCHY OF AUTHORITIES
10) NPS management Policies 2006 Handbook, Para 8.1.1 (in part) - While providing opportunities for appropriate public enjoyment is an important part of the Service’s mission, other park uses—unrelated to public enjoyment—may sometimes be allowed as a right or a privilege if they are not otherwise prohibited by law or regulation. In exercising its discretionary authority, the Service will allow only uses that are (1) appropriate to the purpose for which the park was established, and (2) can be sustained without causing unacceptable impacts. Recreational activities and other uses that would impair a park’s resources, values, or purposes cannot be allowed. The only exception is when an activity that would cause impairment is directly and specifically mandated by Congress.

11) 5USC575 Federal Administrative Procedures Act (in part) –
(b) An officer or employee of an agency shall not offer to use arbitration for the resolution of issues in controversy unless such officer or employee--
(1) would otherwise have authority to enter into a settlement concerning the matter; or
(2) is otherwise specifically authorized by the agency to consent to the use of arbitration.
(c) Prior to using binding arbitration under this subchapter, the head of an agency, in consultation with the Attorney General and after taking into account the factors in section 572(b), shall issue guidance on the appropriate use of binding arbitration and when an officer or employee of the agency has authority to settle an issue in controversy through binding arbitration.

12) 5USC572(b) Federal Administrative Procedures Act (in part) -
(b) An agency shall consider not using a dispute resolution proceeding if--
(1) a definitive or authoritative resolution of the matter is required for precedential value, and such a proceeding is not likely to be accepted generally as an authoritative precedent;
(2) the matter involves or may bear upon significant questions of Government policy that require additional procedures before a final resolution may be made, and such a proceeding would not likely serve to develop a recommended policy for the agency;
(3) maintaining established policies is of special importance, so that variations among individual decisions are not increased and such a proceeding would not likely reach consistent results among individual decisions;
(4) the matter significantly affects persons or organizations who are not parties to the proceeding;
(5) a full public record of the proceeding is important, and a dispute resolution proceeding cannot provide such a record; and
(6) the agency must maintain continuing jurisdiction over the matter with authority to alter the disposition of the matter in the light of changed circumstances, and a dispute resolution proceeding would interfere with the agency's fulfilling that requirement.

13) 40CFR1500.1 NEPA Purpose –
(a) The National Environmental Policy Act (NEPA) is our basic national charter for protection of the environment. It establishes policy, sets goals (section 101), and provides means (section 102) for carrying out the policy. Section 102(2) contains ``action-forcing'' provisions to make sure that federal agencies act according to the letter and spirit of the Act. The regulations that follow implement section 102(2). Their purpose is to tell federal agencies what they must do to comply with the procedures and achieve the goals of the Act. The President, the federal agencies, and the courts share responsibility for enforcing the Act so as to achieve the substantive requirements of section 101.

(b) NEPA procedures must insure that environmental information is available to public officials and citizens before decisions are made and before actions are taken. The information must be of high quality. Accurate scientific analysis, expert agency comments, and public scrutiny are essential to implementing NEPA. Most important, NEPA documents must concentrate on the issues that are truly significant to the action in question, rather than amassing needless detail.

(c) Ultimately, of course, it is not better documents but better decisions that count. NEPA's purpose is not to generate paperwork--even excellent paperwork--but to foster excellent action. The NEPA process is intended to help public officials make decisions that are based on understanding of environmental consequences, and take actions that protect, restore, and enhance the environment. These regulations provide the direction to achieve this purpose.

Enclosure (1), Sheet 2 of 4
CHNSRA ENABLING LEGISLATION HIERARCHY OF AUTHORITIES

14) 40CFR1508.27 NEPA; “Significantly” (in part)-
Significantly as used in NEPA requires considerations of both context and intensity:

(a) Context. This means that the significance of an action must be analyzed in several contexts such as society as a whole (human, national), the affected region, the affected interests, and the locality. Significance varies with the setting of the proposed action. For instance, in the case of a site-specific action, significance would usually depend upon the effects in the locale rather than in the world as a whole. Both short- and long-term effects are relevant.

(b) Intensity. This refers to the severity of impact. Responsible officials must bear in mind that more than one agency may make decisions about partial aspects of a major action. The following should be considered in evaluating intensity:

(1) Impacts that may be both beneficial and adverse. A significant effect may exist even if the Federal agency believes that on balance the effect will be beneficial.

(3) Unique characteristics of the geographic area such as proximity to historic or cultural resources, park lands, prime farmlands, wetlands, wild and scenic rivers, or ecologically critical areas.

(4) The degree to which the effects on the quality of the human environment are likely to be highly controversial.

(5) The degree to which the possible effects on the human environment are highly uncertain or involve unique or unknown risks.

(6) The degree to which the action may establish a precedent for future actions with significant effects or represents a decision in principle about a future consideration.

(8) The degree to which the action may adversely affect districts, sites, highways, structures, or objects listed in or eligible for listing in the National Register of Historic Places or may cause loss or destruction of significant scientific, cultural, or historical resources.

15) 16USC701 MBTA; “Game and wild birds; preservation” (in part) - "The Secretary of the Interior is authorized to adopt such measures as may be necessary to carry out the purposes of this Act, and to purchase such game birds and other wild birds as may be required therefore, subject, however, to the laws of the various States and Territories."

*Note 16USC459.a.2 (except for certain areas) and 16USC459.a.1 (That the legal residents of villages referred to in section 459 of this title shall have the right to earn a livelihood by fishing within the boundaries) are specific mandated Congressional laws of the various states and territories
16) 16USC715.i.a MBTA; "Administration: (a) Treaty obligations; rules and regulations:” (in part) –

Areas of lands, waters, or interests therein acquired or reserved pursuant to this subchapter shall, unless otherwise provided by law, be administered by the Secretary of the Interior under rules and regulations prescribed by him to conserve and protect migratory birds in accordance with treaty obligations with Mexico, Canada, Japan, and the Union of Soviet Socialist Republics, and other species of wildlife found thereon, including species that are listed pursuant to section 1533 (ESA) of this title as endangered species or threatened species, and to restore or develop adequate wildlife habitat."

*Note 16USC459.a.2 (except for certain areas) and 16USC459.a.1 (That the legal residents of villages referred to in section 459 of this title shall have the right to earn a livelihood by fishing within the boundaries) are specific mandated Congressional laws (“Unless otherwise provided by law”) specifically defined by 36CFR7.58.(6) that take precedence due to CHNSRA lands (16USC459.a.2 exception lands) were not acquired pursuant to the sub chapter or reserved by the chapter, and CHNSRA has other provisions by law specifically mandated by Congress(16USC459.a.2, 16USC459.a.1) that should take precedence over flora and fauna preservation.

Enclosure (1), Sheet 3 of 4
CHNSRA ENABLING LEGISLATION HIERARCHY OF AUTHORITIES
17) 16USC1534.a.(1) ESA; “Implementation of conservation program; authorization of Secretary and Secretary of Agriculture” (in part) -
(a)Implementation of conservation program; authorization of Secretary and Secretary of Agriculture:

The Secretary, and the Secretary of Agriculture with respect to the National Forest System, shall establish and implement a program to conserve fish, wildlife, and plants, including those which are listed as endangered species or threatened species pursuant to section 1533 of this title. To carry out such a program, the appropriate Secretary--

(1) shall utilize the land acquisition and other authority under the Fish and Wildlife Act of 1956, as amended [16 U.S.C. 742a et seq.], the Fish and Wildlife Coordination Act, as amended [16 U.S.C.661 et seq.], and the Migratory Bird Conservation Act [16 U.S.C. 715 et seq.], as appropriate"
*Note 16USC459.a.2 (except for certain areas) and 16USC459.a.1 (That the legal residents of villages referred to in section 459 of this title shall have the right to earn a livelihood by fishing within the boundaries) specifically defined by 36CFR7.58.(6) are specific mandated Congressional laws that take precedence over flora and fauna protection due the Secretary does not have authority per MBTA (16USC715.i.a) or any of the other acts cited, in addition, CHNSRA lands were not acquired pursuant to MBTA sub chapter or reserved by the ESA as well.

18) 16USC1539.b.3 ESA; “Exceptions” (in part) -
(b)Hardship exemptions

(3) The Secretary may make further requirements for a showing of undue economic hardship as he deems fit. Exceptions granted under this section may be limited by the Secretary in his discretion as to time, area, or other factor of applicability.