1 ---- I

33290

33308 33303

33273

33355 Pt.

33379 ...... 33367 SCRITTA

...... 33280 ------...... 33276 No. 231— No. . ----- ^ ...... /

...... (Continued inside) — 1973 ...... ------...... ------...... - ...... ------...... EPA grants emergency conditions exemp­ . ------...... PART PART III: MEDICAID— HEW amends certain eligibility re­ PART PART H: quirements; effective 12-3-73 except as otherwise ARIZONA TRANSPORTATIONEPA issues CONTROL Phoenix-Tucson PLAN— Intrastate air quality specified standards INCOME TAX— IRS regulations for determining foreign INTERNATIONAL MAIL— Postal Service proposed rate PESTICIDES— DIAGNOSTIC X-RAY EQUIPMENT— FDA proposes policy periods; effective 11—26—73..... 1973 c r o p VOCATIONAL REHABILITATION— VA defines eligibility HIGHLIGHTS OF THIS ISSUE on assembly and remanufacturing; comments by 2-1-74.. 33313 This listingdoes notaffect the legal status of anydocument published inthis issue. Detailed CIGAR TOBACCO— USDA announces grade rates on SUGARBEETS— USDA determination of prices for 1973 MONDAY, MONDAY, DECEMBER 3, requirements for certain ethylene glycol products; effective MEAT AND POULTRY INSPECTION— USDAstatements proposes of net contents; uni­ comments by 4 -5 -7 4 FOOD LABELING— FDA regulations on spices, flavorings, crop; effective 12—3—73 CHILD PROTECTION— CPSC poisonprevention packaging tions to Federal and State agencies; effective 12-10-73. .. 33303 table of contents appears inside. FUEL SHORTAGE— ICC notice on emergency transporta­ form requirements for determining compliance with label tax credit in certain interest income colorings and chemical preservatives; effective 12-3-73.. 33284 changes; comments by 12—12—73...... - 33345 6 -1 -7 4 Pages Pages 33267-33383 tion legislation; comments by 12—14—73 WASHINGTON, D.C. WASHINGTON, 38 ■ Volume 231 Number PART 1

December 3f 1973— Pages 33267—33383 REMINDERS

(The items in this list were editorially compiled as an aid to F é d é r a i. R e g is t e r users. Inclusion or exclusion from this list has no legal significance. Since this list is intended as a reminder, it does not include effective dates that occur within 14 days of publication.)

Rules Going Into Effect Today

N o t e : There were no items published after October 1, 1972, that are eligible for in­ clusion in the list of R u l e s G o i n g I n t o E f f e c t T o d a y .

ACE— Standardization of design icenses to manufacture nuclear power re- v. actors:...... 30251; 11-2-73 CONSUMER PRODUCT SAFETY COM­ MISSION— Lead-containing artists' paints and related material; exemp­ tion from banning.. 31519; 11—15—73 FAA— Designation of Federal airways, area low points, controlled airspace and reporting points; designation of control zone and alteration of transi­ tion area...... 27820; 10-9-73 INTERIOR/BLM-r-Appointment of Min­ eral Surveyors; delegations of author­ ity and procedures...... 30001; 10-31-73

Published daily, Monday through Friday (no publication on Saturdays, Sundays, or on official Federal holidays), by the Office of the Federal Register, National Archives and Records Service, General Services 4 Administration, Washington, D.C. 20408, under the Federal Register Act (49 Stat. 500, as amended; 44 U.S.C., J? Ch- 15) and the regulations of the Administrative Committee of the Federal Register (1 CFR Ch. I). Distribution made only by the Superintendent of Documents, U.S. Government Printing Office, Washington, D.C. 20402.

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FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 HIGHLIGHTS— Continued

Civil Service Commission: Federal Prevailing Rate Ad­ m e e tin g s — DOD: Historical Advisory Committee, 12-6 and visory Committee, 12—6, 12—13 and 12—19—73...... 33321 12-7-73...... — — ----- »...... 33317 Council on Economic Advisers: Adyisory Committee on National Manpower Advisory Committee, 12—7—73---- 33350 the Economic Role of Women, 12—5—73...... -...... 33321 Interior Department: Vernal District Grazing Advisory National Foundation on the Arts and the Humanities: Federal-State Partnership/Special Projects Advisory Board, 12-18-73...... 33317 Indiana Dunes National Lakeshore Advisory Com­ Panel, 12-6 and 12-7-73...... _...... 33344 mission, 12—6—73...... -...... 33318 Literature Advisory Panel, 12—12 and 12—13—73...... 33344 Lewistown District Advisory Board, 1-11-74— - ...... 33317 VA: Advisory Committee on Structural Safety of Veterans Craig District Grazing Advisory Board, 12—4 and Administration Facilities, 12—17—73..-...... --- 33349 12-5-73 :...... - ; ...... 33317 Labor Department: Advisory Committee on Women to Bureau of Mines, Advisory Committee on Coal Mine the Secretary of Labor, 12—18 and 12—19—73...... 33350 Safety Research, 12-3 and 12-4—73...... 33318 Advisory Council on Intergovernmental Personnel Office of Oil and Gas, Emergency Petroleum Supply Policy, 12-12 and 12-13-73...... 33320 Committee, et al. 12—6 and 12—11—73...... 33319 Commerce Department: Domestic and International Office of Management and Budget: Advisory Committee Business Administration, National Industrial Energy on GNP Data Improvement, 12-18-73...... 33344 Conservation Council, 12—10—73...... 33319 American Statistical Association Advisory Committee CLC: Food Industry Wage and Salary Committee on Statistical Policy; 12-10-73...... 33344 12-6-73 ...... 33357

Contents

DEFENSE DEPARTMENT ADVISORY COUNCIL ON INTERGOVERN­ CIVIL AERONAUTICS BOARD MENTAL PERSONNEL POLICY Notices See Air Force Department. Jugoslovenski Aerotransport; re­ Notices DELAWARE RIVER BASIN COMMISSION newal and amendment of for­ Meeting------— ------•— — 33320 eign air carrier permit— ------33321 Notices Comprehensive Plan; public hear­ AGENCY FOR INTERNATIONAL CIVIL SERVICE COMMISSION ing ______33322 DEVELOPMENT Proposed Rules Federal employment; revised basis DOMESTIC AND INTERNATIONAL Notices BUSINESS ADMINISTRATION Director and Deputy Director, O f­ for disqualification and dis- fice of Housing; redelegation of missal ------33315 Notices authority______— 33317 Notices National Industrial Energy Con­ Federal Prevailing Rate Advisory servation Council; meeting----- 33319 AGRICULTURAL STABILIZATION AND Committee; meeting— _------33321 University of California; decision CONSERVATION SERVICE on application for duty-free en­ COMMERCE DEPARTMENT try of scientific article------33320 Rules and Regulations See also Domestic and Interna­ Sugar beets ; 1972 crop prices------33273 tional Business Administration. ENVIRONMENTAL PROTECTION AGENCY Notices Rules and Regulations AGRICULTURE DEPARTMENT National Industrial Energy'Con­ Arizona; Transportation control See Agricultural Stabilization and servation Council; establish­ plan ______33368 Conservation Service; Animal ment ______------— 33320 Pesticides; exemption of Federal and Plant Health Inspection and State agencies under emer­ Service; Commodity Credit COMMODITY CREDIT CORPORATION gency conditions______33303 Corporation; Forest Service. Rules and Regulations Cigar Tobacco; advance schedule Notices AIR FORCE DEPARTMENT for 1973 crop------33276 Review of new or modified indi­ rect sources; public hearing_____ 33322 Notices CONSUMER PRODUCT SAFETY Historical Advisory Committee; COMMISSION FEDERAL AVIATION ADMINISTRATION meeting ______33317 Rules and Regulations Rules and Regulations Ethylene Glycol; child protection Alteration of control zone; correc­ ANIMAL AND PLANT HEALTH packaging standards.^------33280 tion ______33277 INSPECTION SERVICE Proposed Rules COST OF LIVING COUNCIL FEDERAL COMMUNICATIONS Meat and poultry products; net Notices COMMISSION weight labeling-.______33308 Food Industry Wage and Salary Rules and Regulations Committee; meeting------33357 Class B stations; e d i t o r i a l ATOMIC ENERGY COMMISSION .changes ______33302 COUNCIL ON ECONOMIC ADVISERS Notices Notices Notices Louisiana Power and lig h t Co.; Hearings, etc.: order for third prehearing con- Advisory Committee on the Eco­ nomic Role of Women; meeting. 33321 Hertz Broadcasting of Birming­ ference______33320 ham, Inc. and Johnston R. S. Landauer, Jr. and Co.; filing Broadcasting Co------,------33322 of petition for rulemaking. 33321 CUSTOMS SERVICE Rules and Regulations Panhandle Broadcasting Co. Inc. University of Nevada; intent to is­ and Brannen and Brannen___ 33324 sue order authorizing disman­ Greenville, Mississippi; Port of (Continued on next page) tling of facility. i ______; 33321 entry »------33284 33269

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 33270 CONTENTS

FEDERAL POWER COMMISSION FEDERAL TRADE COMMISSION Emergency transportation legis­ Notices Rules and Regulations lation; request for comments. _ 33355 National Power Survey Executive Prohibited trade practices: Fourth section applications for Advisory Committee; orders Bermuda Pool Co., Inc., et al__ 33277 re lie f------... ------_ 33350 designating additional members Chock Full O’Nuts Corp. Inc.; Motor carrier board transfer pro­ (2 documents)______±______33333 correction ______: 33277 ceedings ------... ------33351 National Power Survey Technical Fashion Two Twenty, Inc., et al_ 33277 Motor Carrier temporary author­ Advisory Committee; order des­ Longines-Wittnauer, Inc., et al_ 33279 ity applications______... ____ _ 3335j ignating additional members___ 33333 Hearings, etc.: Watchung Pool Supplies, Inc., LABOR DEPARTMENT et al______33279 Ashland Oil, Inc______33325 See also Occupational Safety and Atlantic Richfield Co., et al____ 33325 FOOD AND DRUG ADMINISTRATION Health Administration. Beren Corp______33325 Rules and Regulations Notices Central Louisiana Electric Co., In c ______33326 Food labeling; spices, flavorings, Advisory Committee on Women- Colorado Interstate Gas Co____ 33326 colorings and chemical preserv­ meeting ------33350 atives ______33284 Columbia Gas Transmission LAND MANAGEMENT BUREAU Corp. and Columbia Gulf Proposed Rules Transmission Co______33327 Diagnostic X-ray systems; assem­ Notices Consolidated Gas Supply Corp _ _ 33328 bly and r e a s s e m b ly . ______33313 Meetings : Eastern Shore Natural Gas Co_ 33328 Notices . Craig District Advisory Board. _ 33317 El Paso Natural Gas Co______' 33329 Edison Pharmaceutical Co., Inc.; Lewistown District Advisory El Paso Natural Gas Co. and correction______33345 B oa rd ------33317 Northwest Pipeline C o rp .... 33329 Vernal District Grazing Advi­ Gulf States Utilities Co______33329 FOREST SERVICE sory Board, Utah______33317 Idaho Power Co______33330 Notices Wyoming; modification of admin­ Lario Oil & Gas Co______33330 Availability of environmental istrative district boundaries and Lone Star Gas Co. (4 docu­ statements : jurisdictions______33313 ments) ------33331, 33332 East Bradfield River sale______33319 MINES BUREAU Louisiana Power and Light Co. _ 33332 Three-year road construction Middle South Services, Inc____ 33333 program ______33319 Notices Missouri Power and Light Co___ 33333 Advisory Committee on Coal Mine New England Power Co______33333 GENERAL SERVICES ADMINISTRATION Safety Research; meeting______33318 Norman B. Frost—..______33333 See also National Archives and Records Service. NATIONAL ARCHIVES AND RECORDS Pacific Gas and Electric Co_____ 33334 Notices SERVICE Pacific Gas Transmission Co^_ 33334 Notices Pennsylvania Electric Co_____ ! 33334 Coordination of executive branch activities; task group proposals; Access to 1900 census data for Petro-Lewis Corp______33334 correction ______33343 historical, genealogical, and Sacramento Municipal Utility legal research______33343 District------33335 HEALTH, EDUCATION, AND WELFARE Southern Natural Gas Co. (3 DEPARTMENT NATIONAL FOUNDATION ON THE ARTS documents)______33336 See Food and Drug Administra­ AND THE HUMANITIES Southwest Gas Corp______33336 tion; Social and Rehabilitation Notices Service. Sun Oil Co______33337 Meetings : Tennessee Gas Pipeline Co____ 33337 INTERIM COMPLIANCE PANEL (COAL Federal-State Partnership/Spe- Texaco, Inc______33337 MINE HEALTH AND SAFETY) cial Projects Advisory Panel.. 33344 Texas Eastern Transmission Notices Literature Advisory Panel____ 33344 Corp. (3 documents)_ 33338, 33341 Freeman Coal Mining Corp. and Peabody Coal Co.; applications NATIONAL MANPOWER ADVISORY Texas Pacific Oil Co., Inc______33339 COMMITTEE Transwestern Pipeline Co., et for renewal permits; opportu­ a l ------33340 nity for hearing______33343 Notices M eetin g------33350 Wisconsin Valley Improvement INTERIOR DEPARTMENT C o ------__— ____ _ 33340 See Land Management Bureau; NATIONAL PARK SERVICE Mines Bureau; National Park Notices FEDERAL REGISTER ADMINISTRATIVE Service; Oil and Gas Office. COMMITTEE Indiana Dunes National Lake- INTERNAL REVENUE SERVICE shore Advisory Commission; Rules and Regulations Rules and Regulations meeting------33318 CFR checklist; 1973 issuances____ 33273 Foreign tax credit; special rules OCCUPATIONAL SAFETY AND HEALTH for interest income______33290 ADMINISTRATION FEDERAL RESERVE SYSTEM Procedural rules______33300 Notices Notices INTERSTATE COMMERCE COMMISSION Port Huron Terminal Co.; appli­ Formation of Bank Holding Com­ Rules and Regulations cation for variance and interim panies: order______33349 Exchange National Corp______33341 Car service orders: Rice Insurance Agency, Inc____ 33342 Delaware and Hudson Railway OFFICE OF MANAGEMENT AND BUDGET First National State Bancorpora- Co. and Penn Central Trans- portati6nCo______33302 Notices tion; acquisition of bank______33341 Meetings : Fort Worth National Corp.; cor­ Baltimore and Ohio Railroad C o ------33302 Advisory Committee on GNP rection ______33343 Data Improvement______33344 Union Credit Corp.; request for Notices Advisory Committee on Statisti­ determination______33343 Assignment of hearings______33350 cal Policy______33344

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 CONTENTS 33271

OIL AND GAS OFFICE Eastern Utilities Associates, et al_ 33346 STATE DEPARTMENT Suspension of trading: See Agency for International Notices Continental Vending Machine Development. Emergency Petroleum Supply C o r p ______33346 Committee et al.; meeting------33319 Home-Stake Production Co— 33348 TRANSPORTATION DEPARTMENT Koracorp Industries, Inc------33348 See Federal Aviation Administra­ POSTAL SERVICE Patterson Corp— ------— 33348 tion. Notices Sanitas Service Corp------33348 p ro p o sed changes in international Sayre and Fisher Co------33348 TREASURY DEPARTMENT p o sta g e rates and fees------33345 Stratton Group, Ltd—------33348 See Customs Service; Internal Westgate California Corp------33348 Revenue Service. SECURITIES AND EXCHANGE COMMISSION SOCIAL AND REHABILITATION SERVICE VETERANS ADMINISTRATION Rules and Regulations Rules and Regulations Rules and Regulations Regulation S-X ; adoption of Public and Medical assistance pro­ Vocational rehabilitation; periods amendment------— 33282 grams; eligibility require­ of eligibility------33303 Notices ments ______33379 Notices A la b a m a Power Co. and Ala­ Advisory Committee on Struc­ b a m a Property Co.; proposed tural Safety of Veterans Admin­ c a p ita l contributions to wholly istration Facilities; meeting— 33349 owned non-utility subsidiary— 33346 List of CFR Parts Affected

The following numerical guide is a list of the parts of each title of the Code of Federal Regulations affected by documents published in today’s issue. A cumulative list of parts affected, covering the current month to date, appears following the Notices section of each issue beginning with the second issue of the month. In the last issue of the month the cumulative list will appear at the end of the issue. , ■ A cumulative guide is published separately at the end of each month. The guide lists the parts and sections affected by documents published since January 1, 1973, and specifies how they are affected. ______

38 CFR 1 CFR 14 CFR 71 ______33277 21______— — 33303 Ch. I ...... - ______33273 16 CFR 13 (5 documents) ------33277, 33279 40 CFR 5 CFR V 1700______33280 52______33368 P r o p o s e d R u l e s ; 17 CFR 166______33303 731__i_____ 33315 33282 210______45 CFR 19 CFR 206______33380 7 CFR .... 33284 248 ______i ______- ______33380 871______33273 21 CFR 249 ______33383 1464______— — 33276 ______33284 47 CFR P r o p o s e d R u l e s : 1______33302 9 CFR _ 33313 1000______95______33302 P r o p o s e d R u l e s : 26 CFR 317______33308 ____ 33290 49 CFR 381______33308 601______33300 1033 (2 documents)------33302

FEDERAL REGISTER, V O L 38, NO. 231— M O N D AY, DECEMBER 3, 1973

33273 Rules and Regulations

This section of the FEDERAL REGISTER contains regulatory documents having general applicability and legal effect most of which are keyed to and codified in the Code of Federal Regulations, which Is published under 50 titles pursuant to 44 U.S.C. 1510. The Code of Federal Regulations is sold by the Superintendent of Documents. Prices of new books are listed in the first FEDERAL REGISTER issue of each month.

Title 1— General Provisions T itle Price CFR Unit (Rev. as of July 1,1973) : Title Price CHAPTER I— ADMINISTRATIVE CFR Unit (Rev. as of April 1,1973) : COMMITTEE OF THE FEDERAL REGISTER 17 ______$5. 50 41 Chapters: 18 Parts: 1_2______4. 50 CFR CHECKLIST 1-149 — ______4. 00 3 -5 D ______3.90 1973 Issuances 1 5 0 -en d ______4.00 6 -9 ______4.10 19 ______â _____ 1------5.00 This checklist, prepared by the Office 10-17______2- 55 20 Parts: 18______5.70 of the Federal Register, is published in 01-399 ______2. 25 19-100______2. 30 the first issue of each month. It is ar­ 400-end------7.00 101-end______4.55 ranged in the order of CFR titles, and 21 Parts: General Index Supplement------1. 35 shows the issuance date and price of re­ 1- 9 ______2. 25 vised volumes of the Code of Federal 10-129 ______5. 50 Title 7— Agriculture Regulations issued to date during 1973. 130-140______3. 00 New units issued during the month are 141-169______5. 50 CHAPTER VIII— AGRICULTURAL STABILI­ announced on the back cover of the 170-299 — ______2. 25 ZATION AND CONSERVATION SERVICE (SUGAR), DEPARTMENT OF AGRICUL­ daily F e d e r a l R e g is t e r as they become 3 0 0 -en d ______1.50 available. 2 2 ______4. 25 TURE Order from Superintendent of Docu­ 23 (Rev. June 20, 1973)------1- 50 SUBCHAPTER I— DETERMINATION OF PRICES 24 ______6.50 ments, Government Printing Office, [Docket No. SH-312] 25 IIIIIIII—1_.______3. 75 Washington, D.C. 20402. PART 871— SUGARBEETS 26 Parts: Fair and Reasonable Prices for 1973 Crop CFR Unit (Rev. as of Jan. 1, 1973): 1 (§§ 1.0-1-1.300)------9.75 1 (§§ 1.301-1.400)______2.50 The Sugar Act requires producers who Title ’ * ’ Price 1 (§§ 1.401-1.500) 3.00 also process sugarbeets grown by other 1 ______$0.55 1 (§§ 1.501-1.640)------— 3.75 producers to pay prices determined by 2 [Reserved! 1 (§§ 1.641-1.850)______- 4.00 the Secretary of Agriculture to be fair 3 ______2. 60 1 (§§ 1.851-1.1200)______4.50 and reasonable as one of the conditions 3A 1972 Compilation______2.50 1 (§ 1.1201-end)______6.50 for receiving Sugar Act payments on 4 ______1. 75 2 - 2 9 _;______2. 75 their own production. 5 ______3.75 30-39 ------3. 00 Such determination may not be made 6 (Rev. Feb. 1, 1973)______4.25 40-169 ______4. 75 until after investigation and opportunity 7 Parts: 170-299 ______6. 75 for interested persons to testify on the 0-45 _____ *______— 6.50 300-499 — ______3. 00 fair and reasonable prices to be paid 46-51______2. 60 500-599 ______3. 50 under either purchase or toll agree­ 52 ______4.20 600-end ^------1-50 ments. A series of public hearings was 53-209 ______7.00 2 7 ______1- 25 held during December 1972 in several 210-699 ______5.25 28 (Rev. July 10,1973)------$1. 70 cities within the major producing re­ 700-749 ______3.75 29 Parts: gions of the sugarbeet area. 750-899 ______2.10 0- 499 ______4. 00 The determination, which is appli­ 900-944 ______4.00 500-1899 ______— 4. 95 cable to the 1973 crop of sugarbeets, re­ 945-980 ______2.25 1900-end ______6. 05 quires processors to pay for all beets at 981-999 — ______-____ 2.25 30 __— ______4.15 a price not less than that provided in the 1000-1059 ____ 4.00 31 ______4. 75 purchase contract which they have en­ 1060-1119 - ______4.00 32 Parts: tered into with producers. Sugarbeet 1120-1199 ______3.00 1- 8 ______5. 45 purchase contracts for the 1973 crop 1200-1499 ______4.25 9-39 ______3. 70 were negotiated by producers and proc­ 1500-end ______6.50 40-399 ______4. 35 essors and submitted to the Department 8 ______1. 85 400-589 ______4. 50 subsequent to the public hearings. Ex­ 9 ______. 5. 00 590-699 ------2. 05 amination of the contracts indicates that 10 ______4. 00 700-799 ______5. 90 most of the major provisions relating to 11 ...... _ .75 800-999______4. 05 the payment for sugarbeets conform to 12 Parts: 1000-1399 ______1. 60 those of the 1972 crop purchase 1- 299 ______5.50 1400-1599 ______3. 25 contracts. 300-end — ______6.25 1 6 0 0 -en d ______1- 65 Pursuant to the provisions of section 13 ______3. 00 32A ______2.80 301(c)(2) of the Sugar Act of 1948 (7 14 Parts: U.S.C. 1131(c)(2)), as amended (herein 1-59...... 6.50 33 Parts : 1-199______— ------4. 35 referred to as “ act” ) , after investigation 60-199 ______6.75 and due consideration of the evidence 200-end ______7. 75 2 0 0 -e n d ______3.05 34 [Reserved! presented at public hearings held during 15 ____ 4.00 December 1972, the following determina­ 16 Parts: 3 5 ______3. 40 0-149___ 7.00 3 6 ______2. 50 tion is hereby issued. 150-end ,______4.25 3 7 — ______,___ 1.75 The regulations previously appearing Finding Aids______3.10 3 8 ______5. 25 in these sections under “ Determination General -Truy**- ______3.75 39 (Rev. Aug. 1,1973)------3.40 of Prices; Sugarbeets” remain in full

FEDERAL REGISTER, V O L 38* N O . 231— M O N D A Y, DECEMBER 3, 1973 33274 RULES AND REGULATIONS

force and effect as to the crops to which juice processing campaign, such period processor-producer is defined in § 821.1 they were applicable. not to exceed six months) per 100 pounds of this chapter) ; and to sugarbeets pur­ Sec. granulated sugar equivalent of the juice chased by a cooperative processor from 871.24 General requirements. so stored. nonmembers. The requirements are not 871.25 Purchase agreements. (2) In those factory districts in applicable to sugarbeets processed by a 871.26 Reporting requirements. Michigan and Ohio using a percentage- cooperative processor for its members. 871.27 Applicability. type sugarbeet purchase contract, § 871.28 Subterfuge. 871.28 S u b t e rfu g e . wherein growers share with the processor A u t h o r i t y : Secs. 301, 403, 61 S tat. 929, as in factory extraction efficiency, and The processor shall not reduce returns amended, 932; 7 U.S.C. 1131,1153. where the processor has constructed and to producers below those determined in § 871.24 General requirements. is operating tanks for the storage of con­ accordance with the requirements of this centrated juice, a deduction- from the part through any subterfuge or device A producer of sugarbeets who is also gross sales price of sugar and by-prod­ whatsoever. a processor of sugarbeets (herein re­ ucts may be made for the amortization S t a t e m e n t o f B a s e s a n d C onsiderations ferred to as “processor” ) shall have paid, of such tanks as provided in the proces­ or contracted to pay for all sugarbeets sor’s 1973-crop sugarbeet purchase con­ General. The foregoing determination of the 1973 crop grown by other pro­ tract. establishes the fair and reasonable price ducers and processed by him, in accord­ requirements which must be met, as one ance with the following requirements: (d) In determining the net proceeds pursuant to the contract, the gross sales of the conditions for payment under the § 871.25 Purchase agreements. price per 100 pounds to be applicable act, by a producer who processes sugar- beets of the 1973 crop grown by other (a) The price for all 1973-crop sugar- to sugar sold to an affiliate company or other affiliate business entity, or to sugar producers. beets delivered by a producer and proc­ Requirements of the act. Section 301 essed by a processor, shall be not less used by the processor during the settle­ ment period, shall be not less than the (c) (2) of the act provides as a condition than that required to be paid pursuant for payment, that the producer on the to the 1973-crop sugarbeet purchase weighted average quoted basis price, less customary allowance, and plus appropri­ farm who is also, directly or indirectly contract between the processor and the a processor of sugarbeets, as may be de­ producer, subject to the provisions of ate prepays and package differentials which would have been applicable to termined by the Secretary, shall have paragraphs (b), (c), and (d) of this paid, or contracted to pay under either section. such sugar had it been marketed to non- affiliated purchasers. 1 purchase or toll agreements, for any (b) If the processor, in determining sugarbeets, grown by other producers and the net proceeds pursuant to the con­ § 871.26 Reporting requirements. processed by him at rates not less than tract, makes a deduction from the gross The processor shall submit to the Di­ those that may be determined by the sales price of sugar for faetory-site bulk rector, Sugar Division, Agricultural Secretary to be fair and reasonable after sugar storage facilities owned by the Stabilization and Conservation Service, investigation and due notice and oppor­ processor, or for factory-site bulk pulp U.S. Department of Agriculture, Wash­ tunity for public hearing. storage facilities owned by the processor ington, D.C. 20250, within 60 days after 1973-crop fair price determination. in those districts where producers share the close of the sales period specified in This determination provides that a proc­ directly in the total net returns from the the sugarbeet purchase contract, an essor shall be deemed to have complied sales of sugar, pulp, and molasses, such itemized statement for each settlement with the fair price provisions of the act deduction shall be limited to amortiza­ district, certified by an independent ac­ if he has paid, or contracted to pay, tion of such facilities, including improve­ countant, showing the computation of prices for all sugarbeets processed that ments over a reasonable period, interest “net proceeds” or “net returns” as pro­ are not less than those determined pur­ at prevailing rates on the unrecovered vided in such contract, such statement to suant to the applicable 1973-crop pur­ cost, taxes, insurance, maintenance, and be in substantially the form as that con­ chase contract with producers. Other operating costs properly applicable tained in Schedule A attached hereto provisions of the 1972-crop determina­ thereto. After the costs of the facilities, and made a part hereof: Provided, That, tion are continued essentially unchanged. including improvements, have been fully if the processor markets sugar to an af­ No testimony concerning the 1973 price recovered such deductions shall be filiate company or other affiliate business determination was presented at the limited to taxes, insurance, maintenance, entity or if the processor uses any beet sugarbeet price hearings held in,Decem­ and operating costs properly applicable sugar, the weighted average gross sales ber 1972. However, a supplemental brief thereto: Provided, That if there is an price for each category, the marketing was submitted subsequent to the hear­ agreement between the processor and expenses applicable to each, and the net ings by the California Beet Growers As­ producers such deductions for factory- proceeds derived therefrom shall be re­ sociation, Ltd., advising the Department site storage facilities owned by the proc­ ported in substantially the form shown as to the status of contract negotiations essor shall be as agreed upon if less than on Schedule A -l attached hereto and at that time. that provided above. made a part hereof, to supplement the Examination of the 1973-crop pur­ (c) (1) In factory districts using a information submitted in accordance chase contracts, which have been negoti­ scale-type sugarbeet purchase contract with Schedule A: Provided further, That ated by producers and processors and where the processor has constructed if the processor in determining net pro­ submitted to the Department subsequent tanks for the storage of concentrated ceeds makes a deduction for factory-site to the hearings, indicates that with few juice, has stored such juice for a period bulk sugar, bulk pulp or concentrated exceptions the major provisions relating of not less than 30 days after the end of juice storage facilities owned by the pro­ the slicing campaign and has processed to payments for sugarbeets conform to cessor, the total cost of such facilities, those of the 1972-crop contracts. All beet such juice into granulated sugar, and including improvements, the amount of sugar companies operating in California there is agreement between the processor the deduction and the expenses used in and producers for the processor to make a will make the initial payment for beets determining such deduction shall be re­ based op a higher net selling price for charge for the storage of concentrated ported in substantially the form shown sugar. A supplemental contract between juice, a storage charge measured by the on Schedule A-2 attached hereto and one company and the growers in one of additional costs incurred as a result of made a part hereof to supplement the factory clean-up and start-up in con­ its California districts provides for the information submitted in accordance payment by growers of all transportation nection with the juice processing cam­ with Schedule A. paign may be deducted from the gross costs above a certain amount for beets sales price of sugar: Provided, That such § 871.27 Applicability. shipped to another district for process­ charge shall not exceed two cents per ing. Another company increased the The requirements of this part are ap­ charge to growers in one of its California month (based on the length of time such plicable to all sugarbeets purchased from districts for bulk storage to provide for juice is stored between the end of the other producers and processed by a grower participation in the cost of new slicing campaign and the start-up of the processor who produces sugarbeets (a bulk sugar storage facilities. That same

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 RULES AND REGULATIONS 33275 processor increased the freight charge to that the producers’ share of returns, on P e r growers in one of its factory districts average, continues to be favorable as H u n d r e d ­ compared to their share of total produc­ w e ig h t outside of California for beets shipped to S u g a r another factory for processing. One com­ tion and processing costs, and that the (d o lla r s ) provisions for payment in the 1973-crop pany has divided one of its districts into Gross Sales Price ------:— ------four settlement districts, with payment purchase contracta are fair and reason­ for beets delivered to a district other able at the levels of sugar prices and Less Sales and Marketing Expenses than the one in which the beets were net returns which may be expected dur­ (Applicable to Sugar only): contracted being based on the average ing the marketing seasom - - Federal excise tax ______ugar content for the district in which On the basis of an examination of all Freight on sugar to destination __ relevant factors, the provisions of this Cash discount______:______the beets were contracted. However, the A llo w a n c e s ______average sugar content of beets for a dis­ determination are deemed to be fair and Public storage (actually paid) ____ trict will include the sugar content of reasonable. Accordingly, I hereby find O ff-s ite storage o w n e d b y th e p ro c ­ beets delivered to that district but con­ and conclude that the foregoing price essor (amount charged)-.______tracted in another district. Two com­ determination will effëctuate the price On-site storage (computed panies increased by 50 percent the pre­ provisions o f the Sugar Act of 1948, as c h a r g e ) 2 ______mium for early delivery of sugarbeets. amended. L o a d in g a n d h a n d lin g ______Cost of packing in excess of basis One company added a supplement to the N o t e .— The recordkeeping and reporting re­ p a c k ______;______contracts in two of its districts which quirements of these regulations have been T a x e s _.______— ______.___ contains provisions concerning payments approved by, and subsequent recordkeeping In s u ra n c e ______to be made subsequent to the initial pay­ and reporting requirements will be subject Brokerage and Commissions______ment, hauling allowances, and other to the approval pf the Office of Management Advertising ______and Budget in accordance with the Federal matters. R ep o rts A c t o f 1942. Bales department expenses: One beet sugar company, which has S a l a r i e s ______been purchased by a growers cooperative, Effective date. This determination T r a v e l ______has instituted five-year agreements con­ shall become effective on December 8, Miscellaneous ______;______taining basic provisions and annual 1973 and is applicable to 1973-crop sugar- Other (specify)______beets. agreements covering such items as the Total expense______•___ price of beet seed, recruitment of work­ Signed at Washington, D.C., on No­ Net Return on Net Proceeds. ers, and payment for early harvested vember 26,1973. beets. For the first time these growers will be paid on the basis of an individual K e n n e t h E . F r i c k , 1 Where the purchase contract provides sugar test rather than on factory aver­ Administrator, Agricultural Sta­ that the proceeds from the sales of molasses age sugar content. Another new growers bilization and Conservation Service. and beet pulp are to be included in calcu­ lating the net return or net proceeds, show cooperative has leased one of this com­ S c h e d u l e A —-S t a t e m e n t o f A v e r a g e N e t separately the gross price and the market­ R e t u r n o r N e t P r o c e e d s F r o m S a l e s o f pany’s factories and has also offered five- ing expenses applicable to each. S u g a r 1 year and annual contracts. The five- 2 Obtain from Schedule A-2. year agreement establishes a retainer fee C o m p a n y ______(Data will be held confidential and will of $1.00 per ton of beets to apply toward S ettle m e n t A r e a ______not be published in any manner as would rental of the factory. Both co-ops have Settlement Period ______disclose the operations of any com pany). included requirements in their contracts that growers abide by the by-laws and Schedule A -l—Statement of Gross Sales P rices A pplicable to. Sugar Sold to A ffiliated Companies or E ntities and Used by the processor, as Compared to Sales to N onaffiliated P urchasers policies of the organizations and the terms of the contracts or be subject to rejection of their beets. These co-ops Item Affiliated Used by Nonaffiliated have also eliminated from their contracts purchasers processor. purchasers the New York raw sugar price as a basis for determining the total price for sugar- Sugar sold or used (C w t.). beets. ■ Dollars per hundredweight Other changes in the 1973 purchase Quoted basis price______contracts include increases in the price Customary àllowances (itemize): of sugarbeet seed at several companies, Open competitive...... - ______;__ changes in the deduction for association Other: .______xxxXx dues at two companies, and an increase ______xxxxx in the deduction for experimental work xxxxx at another company. Basis price—less allowances. Consideration has been given to the Prepay...... - - I . — — .:...... - ...... xxxxx _ provisions of the purchase contracts, to Package differential.______. ______------xxxxx______the comparative average costs of pro­ Gross sales price..______....______$______$______$. ducers and processors obtained by field Marketing expenses______...... j... ------*------______survey for a prior crop and recast in Net proceeds. terms of prospective price and produc­ tion conditions for the 1973 crop, and to 1 If any marketing expenses are deducted from the gross sales price by the processor in computing net return for other pertinent factors. Analysis of the this particular sugar, such expenses shall be itemized separately. comparative average operating results (Data will be held confidential and will not be published in any manner as would disclose the operations of any of producers and processors indicates company.)

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 No 231—Pt. 1— 2 33276 RULES AND REGULATIONS

S c h e d u l e A - 2 — S t a t e m e n t R e l a t in g t o C h a r g e s f o r C o m p a n y -O w n e d F a c t o r y -S i t e B u l k § 1464.24 1973 Crop— Connecticut Val- S u g a r ', B u l k P u l p , a n d C oncentrated J u ic e S t o r a g e i n C o m p u t i n g N e t P r o c e e d s , ley Havana, Seed Tobacco, Type 52 1973-C r o p (S u b m i t S e p a r a t e S c h e d u l e f o r E a c h F a c i l i t y ) Advance Schedule.1 C o m p a n y ______(Dollars per hundred pounds, farm sales Location of Bulk Sugar, Pulp, or Juice Storage Facility w e ig h t ) Settlement Areas Included ______G r a d e : Advance S ettlem en t P e r io d ______B in d e rs : rate Sugar Sold During Settlement Period— Cwt ______B 1 ------70.00 B 2 ------62.00 Original Cost of Facility (Year first u sed ____) ______B 3 ------55.00 Improvements (Item & D ate): B 4 ------46.00 B 5 ------;------42.00 Non-Binders: X I ------36.00 § 1464.25 1973 Crop— New York and Total Cost of Facility Including Improvements. Pennsylvania Havana Seed Tobacco, Type 53, and Southern Wisconsin Total Amount Recovered Prior to 1973-Crop, Tobacco, Type 54, Advance Sched­ ule.2 Total Unrecovered Cost of Facility. (D o lla rs p e r h u n d re d p o u n d s, fa rm sales w e ig h t ) Operating Costs or Charges for 1973-Crop: In te r e s t o n u n re c o v e re d co st______G r a d e : Advance T a x e s ______C r o p -R u n : rate I n s u r a n c e ______«______X I ...... 44. 50 Maintenance and Operating (Itemize) : X 2 ______40.00 X 3 ...... - ______33.00 F a r m F ille r s : Y 1 ...... — 30.50 Y 2 ...... 28.50 Total Operating Costs for 1973-Crop______*______Y 3 ...... 26.50 Amount applied against 1973-Crop to amortize cost of facility ___ ;______Nondescript: Total amount charged for facility in computing net proceeds— 1973-crop— N 1 ...... 27.00 (to be carried to Schedule A as amount of deduction)______N 2 ______21.00

U n a m o rtiz e d cost o f fa c ilit y a t e n d o f 1973-crop______;______§ 1464.26 1973 Crop— Northern W is­ (Data will be held confidential and will not be published in any manner as would disclose consin Tobacco, Type 55, Advance the operations of any company.) Schedule.2

[FR Doc.73-25434 Filed 11-30-73:8:45 am ] (Dollars per hundred pounds, farm sales w e ig h t ) CHAPTER XIV— COMMODITY CREDIT COR­ § 1464.22 1973 Crop— Ohio Filler To­ G r a d e : Advance PORATION, DEPARTMENT OF AGRICUL­ bacco, Types 42—44, advance sched­ Binders: g rate TURE ule.1 B 1 ______62.00 B 2 ______■______57.00 SUBCHAPTER B— LOANS, PURCHASES, AND (Dollars per hundred pounds, farm sales OTHER OPERATIONS w e ig h t ) B 3 ______.______51.00 PART 1464— TOBACCO G r a d e : Advance S trip p e rs : C l ______45.50 1973 Crop— Cigar Tobacco, Advance Crop run (stripped together): rate C 2 ______X 40.50 Schedule X I ______4 0.50 X 2 ______37. 50 C 3 ______33.50 On October 26, 1973, there was pub­ X 3 ______i ______34.50 C r o p -r u n : F e d e r a l R e g i s t e r lished in the (38 FR X 4 ...... 30. 50 X I ...... 45.00 29603) a notice of proposed rulemaking Nondescript: X 2 ______*______39.00 setting forth the proposed price support N ------22. 50 advance rates for 1973-crop cigar to­ X 3 ______a ______31.00 bacco. Interested parties were given the § 1464.23 1973 Crop— Connecticut Val­ F a rm F ille r s : opportunity to submit, not later than ley Broadleaf Tobacco, Type 51, ad­ Y 1 ______34.50 vance schedule.2 November 26, 1973, data, views, and Y 2 ______31.00 recommendations regarding the advance (Dollars per hundred pounds, farm sales Y 3 ______„ ______29.00 rates. •w eigh t) Nondescript: G r a d e : Advance KM ______24.00 No unfavorable comments have been B in d e rs : rate received, and the proposed advance N 2 ______18. 00 B 1 ...... 75.00 rates are hereby adopted without change B 2 ______67.00 and are set forth below, The material B 3 ------58.00 celve advances. No advance is authorized for previously appearing under the section B 4 ______47.00 tobacco designated “No-G” (no grade). numbers shown below remains appli­ B 5 ------42. 00 2 The cooperative association through Non-Binders : which price support is made available is au­ cable to the crop to which each refers. X I ------36. 00 thorized to deduct from the amount paid the Effective date.—November 27,1973. * g ro w er $1 per hundred pounds to apply against receiving and overhead costs. Only Signed at Washington, D.C., on No­ 1 The cooperative association through the original producer is eligible to receive vember 27,1973. which price support is made available Is au­ advances. No advance is authorized for to­ thorized to deduct from the amount paid bacco graded “N l” (first quality nonde­ K e n n e t h E . F r i c k , the grower 50 cents per hundred pounds to script) , “N2” (second quality nondescript) Executive Vice President, apply against receiving and overhead costs. or “S” (scrap), or designated “No-G” (no Commodity Credit Corporation. Only the original producer is eligible to re- g r a d e ).

FEDERAI REGISTER, V O L 38, NO. 231— M O NDAY, DECEMBER 3, 1973 RULES AND REGULATIONS 33277

§ 1464.27 1973 Crop— Puerto Rican [D o c k e t N o . C -2 4 7 2 ] said price which are visually purchased Tobacco» Type 46, Advance Sched­ PART 13— PROHIBITED TRADE by respondents’ customers. ule.1 PRACTICES 4. Representing, directly or by impli­ cation, that any price for respondents’ s. (Dollars per hundred pounds, farm sales Bermuda Pool Co., Inc., et al. w e ig h t ) products is a special or reduced price, Grade: Subpart—Advertising falsely or mis­ unless such price constitutes a signifi­ Advance leadingly: § 13.15 Business status, ad­ cant reduction from an established sell­ rate vantages or connections; 13.15-60 Ex­ ing price at which such products have Price Block I (CIP and C IP ) ------46.50 clusive distributor or producer; § 13.155 been sold in substantial quantities by Price Block II (X1P, X1P and X1S) __ 40. 00 Prices; 13.155-5 Additional charges un­ respondents in the recent, regular course Price Block H I (X2T, X2P, X2P and of their business; or misrepresenting in X 2 S ) ------31. 00 mentioned; 13.155-100 Usual as re­ Price B lock I V ( N ) ------16.00 duced, special, etc.; § 13.170 Qualities any manner* their prices or the savings or properties of product or service; available to their purchasers. [PR Doc.73-25532 Piled 11-30-73;8:45 am ] 13.170-30 Durability or permanence. 5. Failing to maintain adequate rec­ Subpart—Failing to maintain records: ords, (a) which disclose the facts upon Title 14— Aeronautics and Space § 13.1051 Failing to maintain records; which any savings claim, including for­ CHAPTER I— FEDERAL AVIATION ADMIN­ 13.1051-20 Adequate. Subpart—Misrep­ mer pricing claims and comparative ISTRATION, DEPARTMENT OF TRANS­ resenting oneself and goods—Business value claims of the type discussed in PORTATION status, advantages and connections: Paragraph 1 of this Order are based; and [Airspace Docket No, 73-EA-84] § 13.1490 Nature;— Goods: §13.1710 (b) from which the validity of any sav­ Qualities or properties;—Prices: § 13.- ings claim, including former pricing PART 71— DESIGNATION OF FEDERAL 1778 Additional costs unmentioned; claims and similar representations of the AIRWAYS, AREA LOW ROUTES, CON­ § 13.1825 Usual as reduced or to be type described in Paragraph 1 of this TROLLED AIRSPACE AND REPORTING increased. Order can be determined. POINTS That respond­ (S ec. 6 , 38 Stat. 721; 15 U,S.C. 46. Interprets I t is further ordered, Alteration of Control Zone or applies sec. 5, 38 Stat. 719, as amended; ents shall forthwith deliver a copy of this order to cease and desist to all pres­ Correction 15 TJ.S.C. 45.) [C e a se a n d d esist o rder, B e r ­ muda Pool Co., Inc., et al., Fairfield, N.J., ent and future personnel of respondents In FR Doc. 73-24355 appearing on page Docket C-2472, Oct. 30,1973.] engaged in the advertising, offering for 31519 in the issue for Thursday, Novem­ sale or sale of respondents’ products and ber 15, 1973, in the final paragraph fol­ In the Matter of Bermuda Pool Co., Inc., a Corporation, and Malcolm A. that respondents secure and retain a lowing the signature line 4, preceding signed statement acknowledging the re­ the word “sunset” the reference to “ot” White and Herbert Smith, Individ­ ually and as Officers of said Corpo­ ceipt of said order from each such should read “to” . person. ration. It is further ordered, That respond­ Title 16— Commercial Practices Consent order requiring a Fairfield, ents shall notify the Commission at least N.J., seller and distributor of swimming CHAPTER I— FEDERAL TRADE thirty (30) days prior to any proposed COMMISSION pools and other merchandise, among change in the corporate respondent such other things to cease representing its as dissolution, assignment or sale result­ SUBCHAPTER A— PROCEDURES AND RULES OF PRACTICE filter furnished with their pools, as being ing in the emergence of a successor cor­ “ Lifetime” filters; representing them­ poration, the creation or dissolution of [Docket No. 8884-0] selves as the exclusive source for “Life­ subsidiaries or any other change in the PART 13— PROHIBITED TRADE time” filters; misrepresenting the price corporation which may affect compli­ PRACTICES of their pools as complete; representing ance obligations arising out of this order. Chock Full O’Nuts Corp. Inc. prices as special or reduced; failing to " I t is further ordered, That the respond­ maintain adequate records. ents herein shall, within sixty (60) days Correction The order to cease and desist, includ­ after service upon them of this order, In the correction to FR Doc. 73-22547, ing further order requiring report of file with the Commission a report in (38 FR 29317) appearing at page 32438 compliance therewith, is as follows: writing, setting forth in detail the man­ in the issue of Monday, November 26, It is ordered, That respondents Ber­ ner and form in which they have com­ muda Pool Co., Inc., a corporation, its plied with this order. 1973, in paragraph 3, following the colon, successor^ and assigns, and Malcolm It is further ordered, That the individ­ add “'"‘New”. White and Herbert Smith, individually ual respondents named herein shall and as officers of said corporation, and promptly notify the Commission of the 1 The cooperative association through respondents’ officers, agents, representa­ discontinuance of their present business which price support is made available is au­ tives and employees directly or through or employment and of their affiliation thorized to deduct from the amount paid the with a new business or employment. Such growers $1 per hundred pounds to apply any corporation, subsidiary, division or against receiving and overhead costs. Only other device, in connection with the ad­ notice shall include respondents’ cur­ the original producer is eligible to receive vertising, offering for sale, sale . or dis­ rent business address and a statement as advances. No advance is authorized for to­ tribution of swimming pools or other to the nature of the business or employ­ bacco graded “N l” (first quality nonde­ products or merchandise, in commerce, ment in which they are engaged as well script), “N2” (second quality nondescript) as “ commerce” is defined in the Federal as a description of their duties and or “S” (scrap), or designated “No-G” (no Trade Commission Act, do forthwith responsibilities. g ra d e ). cease and desist from: By the Commission. * The cooperative association through 1. Representing, directly or by impli­ Which price support is made available is au­ Issued: October 30, 1973. thorized to deduct from the amount paid cation, that the filter furnished with re­ the grower 50 cents per hundred pounds to spondents’ swimming pools is a “Life­ [ s e a l ] C h a r l e s A . T o b i n , apply against receiving and overhead costs. time” filter. Secretary. Only the original producer is eligible to re­ 2. Representing, directly or by impli­ [FR Doc.73-25477 Filed ll-30-73;8:45 am] ceive advances. No advance is authorized for cation, that the respondents are the tobacco designated “No-G ” (no grade). exclusive source for filters manufactured 3 The cooperative association throughby the Lifetime Filter Equipment Corp. [Docket No. C-2474] which price support is made available is au­ thorized to deduct from the amount paid 3. Representing, directly or by impli­ PART 13— PROHIBITED TRADE the grower 50 cents per hundred pounds to cation, that any price for respondents’ PRACTICES apply against receiving and overhead costs. products is a complete price for all items Fashion Two Twenty, Inc., et al. Only the original producer is eligible to re­ usually purchased for use with a swim­ ceive advances. No advance is authorized for ming pool without clearly and conspicu­ Subpart—Coercing and intimidating: tobacco designated “No-G” (no grade). ously listing those items not included in § 13.358 Distributors; § 13.370 Suppliers

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY. DECEMBER 3. 1973 33278 RULES AND REGULATIONS

and sellers. Subpart— Controlling, un­ 4. Requiring, agreeing with or coerc­ distributor or dealer to refrain from fairly, seller suppliers: § 13.530 Con­ ing any distributor or dealer into pur­ selling, distributing or dealing in any trolling, unfairly, seller-suppliers. Sub­ chasing product needs only from those product of a competitor, like, similar, or part— Cutting off access to customers or persons who sponsored or recruited him related to respondents’ products. market: § 13.535 Contracts restricting into respondents’ program, or into whose n . 1. Nothing contained herein shall customers handling of competitive pro­ organizations they have been assigned. prevent respondents from availing them­ ducts; § 13.580 Interfering with distri­ 5. Requiring, agreeing with or coerc­ selves of the benefits, if any, accruing to butive outlets. Subpart— Cutting off sup­ ing any distributor or dealer into obtain­ them by virtue of the Act of Congress of plies or service: § 13.625 Organizing and ing the approval or permission of any August 17, 1937, commonly called the controlling supply sources; § 13.660 other distributor or dealer prior to spon­ Miller-Tydings Act, or the Act of Con­ Threatening withdrawal of patronage. soring another person into the sales or­ gress of July 14, 1952, commonly known Subpart—Dealing on exclusive and tying ganization of the recruiting distributor. as the McGuire Act. basis; § 13.670 Dealing on exclusive and 6. Requiring, agreeing with or coerc­ 2. Nothing contained herein shall pre­ tying basis; 13.670-20 Federal Trade ing any distributor or dealer to refrain Commission Act. Subpart—Enforcing vent respondents from complying with from sponsoring or recruiting persons the provisions of paragraphs 7 and 14 of dealings, or payments wrongfully: § 13.- who are customers of other distributors 1045 Enforcing dealings or payments the court order duly entered in United or dealers. States District Court, Eastern District of wrongfully. Subpart— Maintaining re­ 7. Fixing, establishing, maintaining New York, entitled Fashion Two Twenty, sale prices: § 13.1130 Contracts and or otherwise controlling the prices, dis­ Inc. v. Rudolph Steinber, et al., eivil ac­ agreements; § 13.1155 Price schedules counts, rebates, overrides, or terms or and announcements. tion No. 71 Civ. 665, and paragraphs 7 conditions of sale upon which goods or and 16 of the court order duly entered in (S e c. 6, 38 Stat. 721; 15 U.S.C. 46. Interprets commodities may be resold. United States District Court, Northern or applies sec. 5, 38 Stat. 719; afe amended; 8. Requiring, agreeing with or coerc­ District of Indiana, entitled Fashion Two 15 U.S.C. 45) [Cease and desist order, Fashion ing any distributor or dealer to pay a re­ Twenty, Inc. v. Marjo, Inc. et al., civil Two Twenty, Inc., et al., Aurora, Ohio, Docket fund, bonus, or other consideration or C —2474, N o v . 5, 1973.] action No. 72 F. 71; said paragraphs to thing of value to any other distributor expire June 13, 1974 and September 13, In the matter of Fashion Two Twenty, or dealer, or require any such payment 1973, respectively. by a specified date or time period. Inc., a corporation, and Vernon G. III. I t is further ordered, That re­ 9. Requiring, agreeing with or coerc­ Gochneaur and Roger F. Gochneaur spondent Fashion Two Twenty, Inc., ing any distributor or dealer into making as officers and directors of Fashion within sixty (60) days from the effective Two Twenty, Inc. pricing information available either to date of this order, shall: respondents or to any other distributor Consent order requiring an Aurora, or dealer. 1. Mail or deliver a conformed copy of Ohio, manufacturer, purchaser, distri­ 10. Requiring, agreeing with or coerc­ this order to cease and desist to all di­ butor, and seller of cosmetics, toiletries, ing any distributor or dealer into for­ rectors, associate directors, persons per­ skin care and associated items commonly warding retail orders or copies thereof to forming the functions of directors and sold through a party-plan merchandising respondents. associate directors, and other persons program, among other things to cease 11. Requiring, agreeing with or coerc­ known by it to have received copies of the certain anticompetitive selling practices ing any distributor or dealer to refrain prior “How Manual,” and who are known and agreements. from advancing monies to other distrib­ to it to be engaged in the sale or distri­ The order to cease and desist, includ­ utors or dealers. bution of respondent’s products or ing further order requiring report of 12. Requiring, agreeing with or coerc­ services. compliance therewith, is as follows: ing any distributor or dealer to buy from 2. Offer distributorships or dealerships I. It is ordered, That respondent Fash­or sell to any other distributor or dealer to any former distributor or dealer who ion Two Twenty, Inc., a corporaition, its on a cash basis only. was terminated or suspended by respond­ officers, agents, representatives, employ­ 13. Requiring, agreeing with or coerc­ ent solely for the violation of any rule, ees, successors and assigns, and respond­ ing any distributor or dealer to refrain regulation, or policy which contravenes ents Vernon G. Gochneaur and Roger V. from purchasing merchandise or equip­ any of the provisions of this order. Gochneaur, as officers and directors ment or contracting for services with It is further ordered, That respondent of Fashion Two Twenty, Inc., their persons of his own choosing. shall furnish a conformed copy of this agents, representatives or employees, di­ 14. Requiring, agreeing with or coerc­ order to all future directors, associate di­ rectly or indirectly, or through any cor­ ing any ditributor or dealer 4;o refrain rectors, and persons performing the poration, subsidiary, division or other de­ from distributing or dealing in the prod­ functions of directors and associate vice, in connection with the offering for ucts of a competitor of respondents, or of directors. sale, or distribution of goods or commod­ another cosmetic company, so long as ities in commerce, as “commerce” is de­ IV. It is further ordered, That the re­ such competitor or other cosmetic com­ spondents herein shall within sixty (60) fined in the Federal Trade Commission pany does not falsely represent respond­ Act, shall forthwith cease and desist days from the effective date of this order, from: f* ents as the source of its products. file with the Commission a report in writ­ 15. Requiring, agreeing with or coerc­ ing setting forth in detail the manner 1. Requiring, coercing, contracting or ing any distributor or dealer to refrain entering into an agreement with any dis­ and form in which they have complied from recruiting distributors or dealers with this order. tributor or dealer to refrain from selling of other cosmetic companies. or sales activities in any geographic area I t is further ordered, That respondents of his choosing: Provided, however, That 16. Requiring, agreeing with or coerc­ notify ±he Commission at least thirty the definition of sales activities shall not ing any distributor or dealer to refrain (30) days prior to any proposed change include the establishment of a place of from developing or creating any adver­ in the corporate respondent such as dis­ business as a physical entity. tising literature or sales aids which he solution, assignment or sale resulting in may choose to: Provided, however, That the emergence of a successor corpora­ 2. Requiring or coercing any distribu­ respondents may require 'submission tor or dealer into obtaining the approval tion, the creation or dissolution of sub­ thereof and approval by respondents sidiaries or any other change in the cor­ of any other distributor or dealer as a prior to their use; and provided further prerequisite for engaging in any busi­ poration which may affect compliance ness activities. that respondents may not require that obligations arising out of the order. the material submitted include territorial 'V 3. Requiring, agreeing with or coerc­ references and price quotations, and re­ By the Commission. ing any distributor or dealer to refrain spondents may not withhold approval of Issued: November 5,1973. from selling any merchandise in any such material because such information quantity to or through any specified per­ is lacking. [ s e a l ] C h a r l e s A . T o b i n , son, class of persons, business, or class 17. Requiring, agreeing with or coerc­ Secretary. of business. ing any terminated, former or separated [FR Doc.73-25474 Filed ll-30-73;8:45 am]

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 RULES AND REGULATIONS 33279

[Docket No. C-2120] creased. Subpart—Offering unfair, im­ tail in the trade area where the repre­ proper and deceptive inducements to sentations are made. pART 13— PROHIBITED t r a d e 4. Representing directly or by implica­ PRACTICES purchase or deal: § 13.1955 Free goods; § 13.1960 Free service. tion that any amount is respondents’ Longines-Wittnauer, Inc. and usual and customary retail price for (S ec. 6 , 38 Stat. 721; 15 U.S.C. 46. Interprets Credit Services Inc. or applies sec. 5, 38 Stat. 719, as amended; 15 merchandise unless such amount is the Subpart—Advertising falsely or mis­ U.S.C. 45) [Cease and desist order, Watchung price at which the merchandise has been leadingly: § 13.150 Premiums and Pool Supplies, Inc., et al., North Plainfield, usually and customarily sold at retail by x prizes; § 13.157 Prize contests. Sub- N.J., Docket C-2473, October 30, 1973.] respondents in the recent regular course part—lNeglecting, unfairly or decep­ In the Matter of Watchung Pool Sup­ of business. 5. Representing directly or by implica­ tively, to make material disclosure: plies, Inc., a Corporation, and Frank § 13.1870 Nature; § 13.1883 Prize Con­ Jannuzzi, and Frank C. Jannuzzi, tion that any saving is afforded in the purchase of merchandise from the re­ tests; § 13.1895 Scientific or other rel­ Individually and as Officers of Said evant facts. spondents’ retail price unless the price Corporation. at which the merchandise is offered con­ (Sec. 6, 38 S tat. 721; 15 U .S .C . 46. In te rp re ts Consent order requiring a North stitutes a reduction from the price at or applies sec. 5, 38 S ta t 719, as am e n d e d ; 15 Plainfield, N.J., retailer and distributor U.S.C. 45) [Modified order, Longines-Witt­ which said merchandise is usually and of swimming pools, related accessories, customarily sold at retail by the respond­ nauer, Inc., et al., New York, N.Y., Docket and other products and merchandise, C-2120, Oct. 30, 1973.] ents in the recent regular course of among other things to cease misrepre­ business. In the matter of Longines-Wittnauer, senting products or services as free or at 6. Misrepresenting in any manner, the Inc., and Credit Services, Inc., a discount; misrepresenting prices as re­ amount of savings available tp pur­ corporations. duced or usual and customary; misrep­ chasers of respondents’ merchandise, or Order modifying Paragraph IAC1) of resenting savings that purchasers may the amount by which the price of mer­ cease and desist order issued Decem­ realize. chandise has been reduced either from ber 21,1973, by deleting the requirement The order to cease and desist, includ­ the price at which it has been usually to disclose the odds of winning each prize ing further order requiring report of and customarily sold by respondents in in a promotional sweepstakes or game of compliance therewith, is as follows: the recent regular course of business, or chance, or. the number of individuals to It is ordered, That respondents from the price at which it has been usu­ whom the promotional device is being Watchung Pool Supplies, Inc., a corpo­ ally and customarily sold at retail in disseminated where odds cannot be ac­ ration, its successors and assigns, and the trade area where the representation curately determined. its officers and Frank Jannuzzi and is made. The modified order of compliance is as Frank C. Jannuzzi, individually and as It is further ordered, That respond­ follows: officers of said corporation and respond­ ent corporation shall forthwith deliver It is ordered, That the proceedings in ents’ agents, representatives and em­ a copy of this order to each of its op­ this matter be reopened and-that para­ ployees directly or indirectly, in con­ erating divisions, nection with advertising, offering for graph I A (l) of the order to cease and I t is further ordered, That respond­ desist issued against respondents on sale, sale or distribution of swimming ents notify the Commission at least September 30, 1971, be modified to read pools, swimming pool accessories or any as follows: other products or merchandise, in com­ thirty (30) days prior to any proposed A .(l) Failing to disclose clearly and merce, as “ commerce” is defined in the change in the corporate respondent such conspicuously to participants and pro­ Federal Trade Commission Act, do forth­ as dissolution, assignment or sale result­ spective participants the exact number with cease and desist from: ing in the emergence of a successor cor­ of prizes which will be awarded, the ex­ 1. Representing, directly or by impli­ poration, the creation or dissolution of cation, that a customer is to receive mer­ act nature of the prizes, and the approxi­ subsidiaries or any other change in the mate retail value of each. chandise or services for “ free” or at a discount upon the purchase of other corporation which may affect compli­ By the Commission.1 advertised products where the respond­ ance obligations arising out of the order. Issued: October 30, 1973. ents, in making such an' offer, increase I t is further ordered, That the individ­ the regular price of the product required [ s e a l ] C h a r l e s A . T o b i n , ual respondents named herein promptly Secretary. to be bought, or decrease the quantity or notify the Commission of the discontinu­ quality of that product, or otherwise at­ [PR Doc.73-25475 Filed ll-30-73;8:45 am] tach strings to the offer. ance of their present business or employ­ 2. Representing, directly or by impli­ ment and of their affiliation with a new [Docket No. C-2473] cation, through the use of terms such as business or employment. Such notice “ Our lowest price ever” ,- “ 4 days only”, shall include respondents’ current busi­ PART 13— PROHIBITED TRADE “ special sale price” , “ savings” or in any PRACTICES ness address and a statement as to the other manner, th at'any price is reduced nature of the business or employment in Watchung Pool Supplies, Inc., et al. from respondents’ former price if re­ spondents’ business records fail to estab­ which they are engaged as well as a de­ Subpart—Advertising falsely or mis­ scription of their duties and responsi­ leadingly: § 13.75 Free goods or serv­ lish and show that such price constitutes ices;. §13.155 Prices; 13.155-39 Dis­ a significant reduction from the price at bilities. count savings; 13.155-40 Exaggerated which such merchandise has been sold It is further ordered, That respond­ as regular and customary; 13.55- in substantial quantities or offered for ents shall within sixty (60) days after 93 Special or test offers; 13.155- sale in good faith for a reasonably sub­ service upon them of this order, file with 100 Usual as reduced or special, etc. stantial period of time, by respondents in the recent, regular course of their the Commission a report in writing, set­ Subpart—Misrepresenting oneself and ting forth in detail the manner and form goods—Goods: § 13.1625 Free goods or business. services;—Prices: § 13.1805 Exagger­ 3. JJsing the words “value” or “ made to in which they have complied with this ated as regular and customary; § 13.1820 sell for” or any other words or terms of order. similar import in connection with prices Retail as cost, etc., or discounted; By the Commission. § 13.1825 Usual as reduced or to be in- of merchandise unless such prices are those at which the merchandise has been [ s e a l ] C h a r l e s A. T o b i n , sold by respondents in the recent regular Secretary. 1 Chairman Engman concurring in the re­ sult, and commissioners Jones and Dennison course of business, or unless such prices Issued: October 30,1973. dissenting in part. Dissenting statement are those at which the merchandise has [FR Doc.73-25476 Filed ll-30-73;8:45 am ] filed as p a rt o f t h e o rig in al. usually and customarily been sold at re­

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 33280 RULES AND REGULATIONS

CHAPTER II— CONSUMER PRODUCT substances involved were ingested from children from “serious personal injury SAFETY COMMISSION other than original containers; and in or serious illness.” Thus, special pack­ SUBCHAPTER E— POISON PREVENTION 128 of the nonhospitalized cases and 7 aging standards may be imposed to re­ PACKAGING ACT OF 1970 REGULATIONS of the hospitalized cases, the reports do duce the risk of nonfatal accidents PART 1700— POISON PREVENTION not indicate the type of container from caused by ingestion or handling of PACKAGING which the substances were obtained. The household substances by young children type of container is not identified in the if serious injury or illness is likely to Ethylene Glycol; Establishment of Child three deaths which were cited in the Protection Packaging Standards occur. proposal. Thus, of the 73 ingestions The suggestion that special packaging The ’purpose of this promulgation where the container is identified, a large requirements be limited to packages con­ under the Poison Prevention Packaging majority were from original containers. taining 14 milliliters or more of ethylene Act of 1970 (Pub. Law 91-601) is to re­ The Commission concludes that these glycol overlooks the possibility that a quire household substances in liquid data demonstrate that special packaging one-ounce package of a substance con­ form containing 10 percent or more by is needed to reduce the number of acci­ taining a 35-percent concentration of weight of ethylene glycol packaged on or dental ingestions by young children of ethylene glycol would not be subject to after June 1, 1974, to be packaged in household substances containing eth­ special packaging requirements because child protection packaging meeting cer­ ylene glycol. it would contain only about 11 milliliters tain poison prevention packaging 2. A retailer states that because one-of ethylene glycol, an amount which standards. gallon containers of antifreeze contain­ would nevertheless be capable of pro­ In the F e d e r a l R e g i s t e r of Decem­ ing ethylene gylcol weigh approximately ducing Serious illness or injury if in­ ber 28, 1972 (37 FR 28636), the Commis­ 10 pounds, it would be difficult for young gested by a young child. The possibility sioner of Food and Drugs proposed child children to maneuver the containers. The of serious illness or injury resulting from protection packaging standards for retailer therefore suggests that the spe­ accidental ingestion under such circum­ household substances in liquid form con­ cial packaging requirements be limited stances appears to be far more likely taining 10 percent or more by weight of to single-use containers of ethylene gly­ than the hypothetical situation proposed ethylene glycol (21 CFR 295.2(a) (14) ). col-containing substances in packages of in the comment under consideration. The proposal invited interested persons less than one gallon. Accordingly, the provision of the pro­ to submit comments on or before Feb­ Since one-gallon containers may fre­ posed regulation which requires special ruary 26, 1973. quently be used and stored in and around packaging for household substances in Effective May 14, 1973, functions under households after part of the contents liquid form having a concentration of 10 the Poison Prevention Packaging Act have been used and, when partially percent or more by weight or ethylene were transferred to the Consumer Prod­ emptied, are reduced in weight, the Com­ glycol is retained. uct Safety Commission by section 30(a) mission concludes that the special pack­ of the Consumer Product Safety Act C. Technically feasible, practicable, aging requirements for ethylene glycol- and appropriate. Comments from three (Pub. Law 92-573, 86 Stat. 1231; 15 containing substances should not be U.S.C. 2079(a)). manufacturers and one association of limited to containers of less than one- manufacturers of substances containing Subsequently, on August 7, 1973 (38 gallon capacity. FR 21247), the Consumer Product Safety ethylene glycol question the findings B. Concentration of ethylene glycol.published in the proposal of December 28, Commission revised and transferred the As proposed, the special packaging regulations under the Poison Prevention 1972, that special packaging for house­ standards for household substances in hold substances containing ethylene gly­ Packaging Act of 1970 (21 CFR Part 295 liquid form containing ethylene glycol became 16 CFR Part 1700). Accordingly, col is technically feasible, practicable, was applicable to substances containing and appropriate. The comments state in this promulgation, proposed 21 CFR 10 percent or more by weight of ethylene 295.2(a) (14) is adopted as 16 CFR 1700.- that special closures are not yet avail­ glycol. A comment from one manufac­ able which have been tested on contain­ 14(a)(11). turer states that a lethal dose of ethyl­ In response to the proposal of Decem­ ers filled with ethylene glycol-containing ene glycol for a 22-pound child is ap- substances to determine that this pack­ ber 28, 1972, comments were received proximatley 14 milliliters and suggests from one retailer, one packager of- ethyl­ aging will withstand conditions of ship­ that special packaging requirements ment, storage, and handling the sub­ ene glycol, eight manufacturers of should be imposed on all packages of household substances containing eth­ stances are subject to and retain the household substances containing 14 mil­ ability to meet the child protection pack­ ylene glycol, one association of manufac­ liliters or more of ethylene glycol, rather turers of such products, and one manu­ aging testing procedure set forth in 16 than “ 10 .percent or more by weight.” CFR 1700.20. In addition, the comments facturer of packaging materials. The This comment urges consideration of the principal issues raised in the comments state that a number of relatively small possibility that packages of some house­ firms which manufacture ethylene gly­ and the Commission’s conclusions hold substances consisting of less than thereon are as. follows: col-based antifreeze cannot convert their 10 percent by weight of ethylene glycol packaging machinery to accommodate A. Need for special packaging. 1. One might be sufficiently large to contain 14 special packaging until the final designs manufacturer and the packager state milliliters or more of ethylene glycol. that special packaging is not necessary for such packaging have been tested and Thus, a child might be able to ingest a approved by antifreeze manufacturers. for household substances containing lethal dose from a container not subject ethylene glycol. One manufacturer ques­ to special packaging requirements. In­ The Commission concludes that the tions whether some or all of the inges­ jury data do not indicate a need for spe­ finding required under section 3(a) (2) of tions of products containing ethylene cial packaging fo r products containing the act (that the required special pack­ glycol by children younger than 5 years less than 10 percent by weight of ethyl­ aging be technically feasible, practicable, of age, cited in the proposal, were from ene glycol. Further, mixtures containing and appropriate for such substance) does sources other than the original con­ 10 percent or more by weight of ethylene not imply a delay in the effective date tainers, in which case special packaging glycol are required to bear special label­ of child protection packaging standards would have given no additional protec­ ing under regulations (16 CFR 1500.14) until special packaging is available con­ tion to the children involved. issued pursuant to section 3(b) of the forming exactly with existing packages Examination of reports from the Na­ Federal Hazardous Substances Act (74 and packaging equipment of all manu­ tional Clearinghouse for Poison Control Stat. 374-75, as amended by 80 Stat. facturers of packers of such substances. Centers pertaining to the 208 ingestions 1304; 15 U.S.C. 1262(b)) because of the On the basis of reports and data from noted in the proposal reveals that in 60 hazardous nature of such mixtures. Sec­ industry and other relevant information, of the nonhospitalized cases and in 4 of tion 3(a) (1) of the Poison Prevention the Commission finds that the special the hospitalized cases, the substances in­ Packaging Act of 1970 authorizes the packaging required herein is: volved were ingested from original con­ Commission to establish packaging 1. Technically feasible because tech­ tainers; in 8 of the nonhospitalized cases standards for household substances if nology exists to produce special packages and one of the hospitalized cases, the special packaging is required to protect conforming to the subject standards. On

FEDERAL REGISTER, V O L 38, NO. 231— M O N D AY, DECEMBER 3, 1973 RULES AND REGULATIONS 33281

December 28, 1972, when special pack­ imposed by the Federal Hazardous Sub­ lar notification or assistance in any aging was proposed for substances con­ stances Act be excluded from the cover­ future proceeding under the Poison Pre­ taining ethylene glycol, at least 27 manu­ age of the proposed packaging standards vention Packaging Act of 1970 or other facturers of special packaging had sub­ for household products containing ethyl­ statutes administered by the Commis­ mitted data indicating that one or more ene glycol. sion. of their packages tested in accordance These pens are exempted from the re­ The Commission is also aware that with the testing procedure for special quirement of a warning statement if they some firms have made timely attempts to packaging prescribed by 21 CFR 295.10 are constructed in such a manner that plan and to initiate special packaging of (now 16 CFR 1700.20) met or exceeded the ink is held within the barrel of the household products containing ethylene the effectiveness specifications in 21 CFR pen by absorbent materials; no free liquid glycol since December 28, 1972, and con­ 295 3(b) (now 16 CFR 1700.15(b)). Some is contained within the device; and the cludes that these firms should not be at of those special packaging manufacturers only orifice through which the ink can a commercial disadvantage for their good are now producing child-resistant clo­ be released under any reasonably foresee­ faith effort to prepare for compliance at sures suitable for packaging liquid sub­ able use, including reasonably foresee­ the earliest possible date with the terms stances containing ethylene glycol. Sev­ able abuse by children, is through the of the regulation promulgated below. eral other manufacturers either have or porous writing nib of the pen. In addi­ After consideration of those comments could develop the capacity to produce tion to porous point pens, other articles, concerning the various steps involved in special packaging for liquid substances including certain containers of dry ink the conversion to special packaging for containing ethylene glycol. These pack­ and certain packages of felt pads impreg­ products containing ethylene glycol, the aging designs include special packaging nated with ethylene glycol, have been ex­ availability of special child protection for glass, plastic, or metal containers. empted from the requirements for a packaging, the good faith effort of some 2. Practicable in that it is susceptible to warning label imposed by the Federal manufacturers to prepare for compliance modem mass production and assembly Hazardous Substances Act (16 CFR with the subject special packaging stand­ line techniques. Manufacturers of pack­ 1500.83). ards, and other information, the Com­ aging materials estimate the total pack­ The Commission concludes that those mission concludes that the special pack­ aging requirements for ethylene glycol- articles containing ethylene glycol which aging standards promulgated below shall containing substances to be approxi­ have been exempted from labeling re­ be applicable to those household sub­ mately 150 million units per year, and quirements of the Federal Hazardous stances in liquid forms containing 10 per­ state that they believe they could retool Substances Act present a sufficiently cent or more by weight of ethylene gly­ to meet special packaging requirements m i n i m a l risk of injury to children col which are packaged after June 1, for all products subject to the proposed through handling, use, or ingestion to 1974. standards for substances containing justify exclusion from the special pack­ In consideration of the above, the aging standards for household substances ethylene glycol. Commission finds in accordance with 3. Appropriate since special packaging containing ethylene glycol. The regula­ section 3(a) (1) and (2) of the Poison Is not detrimental to the integrity of the tion has been changed accordingly. Prevention Packaging Act of 1970 (1) substance and will not interfere with its F. Effective date. Comments from sixthat the degree or nature of the hazard storage and vise. manufacturers and one association of to children in the availability of house­ D. Single-use containers. The proposal manufacturers of ethylene glycol-con­ hold substances in liquid form contain­ of December 28, 1972, contained a state­ taining products recommend that the ing 10 percent or more by weight of ment to the effect that a single-use con­ subject special packaging standards be ethylene glycol, by reason of its pack­ tainer requiring a tool for entry will be made effective from 10 to 24 months after aging, is such that special packaging is considered special packaging if it meets the date of promulgation in the F e d e r a l required to protect children from serious the specifications of the standards when R e g i s t e r to allow adequate time for the personal injury or illness resulting from tested by the procedure now prescribed testing, selection, and production of handling, using, or ingesting such sub­ by 16 CFR 1700.20 (formerly 21 CFR special packaging and the conversion of stance and (2) that the special pack­ 295.10); that in the testing of such a con­ packaging machinery to accommodate aging to be required by the subject tainer, it is not necessary to provide the such special packaging. regulation is technically feasible, prac­ children with the todl needed to open the On October 16, 1973, the Commission ticable, and appropriate for such container unless such a tool accompanies surveyed manufacturers of safety clo­ substance. the container when offered for sale to sures in an effort to determine the avail­ Therefore, having evaluated the com­ consumers; and that if the entire con­ ability of such closures to packagers of ments received and other relevant ma­ tents of the package are intended for products containing ethylene glycol. terial, the Commission concludes that use in a single application and the pack­ From its survey, the Commission has con­ the proposal should be adopted as set age is so labeled, it shall not be subject to cluded that an adequate supply of such forth below. the resecuring provisions of the adult closures can be made available by Accordingly, pursuant to provisions of portion of the testing procedure now June 1, 1974, to meet the needs of pack­ the Poison Prevention Packaging Act of specified in 16 CFR 1700.20. agers of products containing ethylene 1970 (secs. 2(4), 3, 5, 84 Stat. 1670-72; Although no comments were received glycol. . 15 U.S.C. 1471(4), 1472, 1474) and under about this statement, the Commission af­ On November 5, 1973, letters were sent authority vested in the Commission by firms > the determinations cited above, to known trade associations with mem­ the Consumer Product-Safety Act (sec. with the further provision that in the bers that package or market products 30(a), 86 Stat. 1231; 15 U.S.C. 2079(a)), adult phase of the testing of single-use that may be subject to the proposed reg­ a new paragraph (a) ( 11) is added to 16 containers opened with a tool which does ulation and to known individual pack­ CFR 1700.14 as follows (although un­ not accompany the container, the. adult agers, distributors, or retailers whose changed, the introductory text of para­ test subjects may be provided with the products may be subject to it informing graph (a) is included below for context) : tool required to open the package, in ad­ them that the Commission could provide § 1700.14 Substances requiring special dition to the instructions concerning the the names of suppliers of special pack­ packaging. proper method of opening which are aging if there was a problem meeting the printed on the packaging. June 1, 1974, effective date. Because of (a) Substances. The Commission has E. Exclusion. A manufacturer of po­ the relatively limited number of manu­ determined that the degree or nature of rous point pens (commonly called “ felt facturers of special packaging and man­ the hazard to children in the availability of the following substances, by reason of tip” or “ soft tip” pens) containing ink ufacturers of products containing ethyl­ their packaging, is such that special with a concentration of approximately 20 ene glycol, the Commission is able to packaging is required to protect children percent of ethylene glycol by weight re­ provide names of possible suppliers of from serious personal injury or serious quests that those porous point pens which special packaging. No inference should are exempted by 16 CFR 1500.83(a)(9) be drawn from this action that the Com­ illness resulting from handling, using, or ingesting such substances, and that the from the requirement of a warning label mission necessarily intends to offer simi­

FEDERAL REGISTER, VOL. 38, N O . 231— M O N D AY, DECEMBER 3, 1973 33282 RULES AND REGULATIONS

special packaging herein required is stantially exceed income tax expense for priate in the public interest or for the technically feasible, practicable, and ap­ such year. protection of investons.” 1 Both Acts also propriate for these substances: The objectives of these disclosure re­ grant to the Commission the power to ♦ * * * ♦ quirements are to enable users of finan­ prescribe, with regard to documents re­ (11) Ethylene glycol. Household sub­cial statements to understand better the quired to be filed, “the form or forms in stances in liquid form containing 10 per­ basis for the registrant’s tax accounting which required information shall be set cent or more by weight of ethylene gly­ and the degree to which and the reasons forth, and the items or details to be col packaged on or after June 1, 1974, why it is able to operate at a different shown in the balance sheet and earnings except those articles exempted by 16 level of tax expense than that which statement * * *.” 2 The Commission be­ CFR 1500.83, shall be packaged in ac­ would be incurred at the statutory tax lieves that the amendments to Regula­ cordance with the provisions of § 1700.15 rate. By developing such an understand­ tion S -X adopted today are entirely con­ (a) and (b). ing, users will be able to distinguish more sistent with its express authority under easily between one time and continuing * * * * * the Acts. The type of information re­ tax advantages enjoyed, by a company quired to be disclosed by these amend­ Effective date. This regulation shall and to appraise the significance of ments is, in the opinion of the Commis­ become effective June 1, 1974. changing effective tax rates. In addition, sion, material to investors as noted above. (S ecs. 2 (4 ) , 3, 5, 84 S ta t. 1670-72; 15 U .S .C . risers will be able to gain additional in­ Other comments indicated that the 1 4 7 1 (4 ), 1472, 1474.) sights into the current and prospective rule would require disclosure of informa­ Dated: November 29,1973. cash drain associated with payment of tion which would be valuable to competi­ income taxes. tors since it would reveal tax strategy or S a d y e E . D u n n , Discussion of Comments Received. which would lead taxing authorities to Secretary, Consumer Product Numerous comments were received in question tax deductions or assess claims Safety Commission. response to the exposure of this rule. In based on amounts provided in computing [PR Doc.73-25602 PUed 12-30-73;8:45 am ] general, analysts and other users indi­ tax expense where items subject to vary­ cated that the required disclosure would ing tax interpretations were treated in Title 17— Commodity and Securities be very helpful to them in the process of a manner favorable to the taxpayer. Exchanges analyzing results and determining the Those who made such comments did not earning power of a corporation. Finan­ provide specific examples of items and [Release Nos. 33-5441, 34-10523, 35-18190, cial executives generally opposed the dis­ I C —8104, A S —149] amounts involved, but the Commission closure on the grounds that it would be believes that most items of this sort CHAPTER II— SECURITIES AND costly to produce and would provide de­ would be of a size such that disclosure EXCHANGE COMMISSION tails which would be of little value to the would not be required under the signif­ PART 210— FORM AND CONTENT OF FI­ average investor. The Commission has icance criteria set forth in the rule. In NANCIAL STATEMENTS, SECURITIES concluded that the benefits of the dis­ those cases, if any, where the amounts ACT OF 1933, SECURITIES EXCHANGE closure are sufficient to require its pres­ involved are sufficiently large to require ACT OF 1934, PUBLIC UTILITY HOLD­ entation in financial statements filed disclosure the needs of present and po­ ING COMPANY ACT OF 1935, AND IN­ with the Commission but it recognizes tential investors in public corporations VESTMENT COMPANY ACT OF 1940 that the detailed disclosure provided are best served by providing such herein will be primarily of interest to Amendment Providing for Improved significant information even though Disclosure of Income Tax Expense professional analysts who have the obli­ there may be an increased risk of adverse gation to develop an understanding in consequences at the hands of competi­ The Securities and Exchange Commis­ depth of corporate results and may not tors. sion today adopted amendments to Rule be required in financial disclosure de­ Numerous commentators raised ques­ 3-16 (o') of Regulation S-X [17 CFR signed for the average investor. The 210.3-16(o)] calling for improved dis­ tions about the proposed requirement Commission notes, however, that finan­ that disclosure be made of the amounts closure of income tax expense in finan­ cial statements prepared in conformity cial statements filed with the Commis­ of deferred income taxes shown on the with generally accepted accounting prin­ year-end balance sheet which are ex­ sion. These amendments were originally ciples as set forth in Accounting Prin­ proposed on December 18, 1972 (Securi­ pected to be reflected as components of ciples Board Opinion No. 11 require dis­ tax expense in each of the next five ties Act Release No. 5344 [38 FR 1748]), closure of the “reasons for significant and then were reissued in revised form years. It was pointed out that this dis­ variations in the customary relationships closure would not achieve the stated ob­ for additional comment on Septem­ between income tax expense and pretax ber 12, 1973 (Securities Act Release No. jective of providing insights into poten­ accounting income if they are not other­ tial future cash outlays for taxes since in No. 5421 [38 FR 27088] ). wise apparent from the financial state­ The final rule includes a number of the normal case one tax deferral is ex­ ments or from the nature of the entity’s pected to be replaced by another. Hence changes made in response to comments business” and it believes that many of received although the basic requirements the data proposed to be required might the disclosures required by Rule 3-16 (o) lead to the misleading inference that a of the original proposal which called for may be necessary in order to reflect the disclosure of the components of tax ex­ spirit of Opinion No. 11. substantial cash outlay for taxes would pense, the reasons for timing differences be likely in the five-year period covered •A number of commentators suggested when such was not the case. The Com­ between book and tax reporting resulting that the Commission does not have the in deferred income taxes, and a recon­ mission recognizes the validity of these authority to require disclosure of the in­ comments and has revised this particular ciliation between the effective income formation relating to income taxes be­ tax rate indicated by the inconle state­ proposal. The revised requirement calls cause such information appears on the for disclosure only in those cases when it ment and the statutory Federal income income tax returns of the corporations tax rate have been retained and are and is therefore confidential. The Com­ adopted hereby. The proposal that the mission finds no merit in this position. 1 Section 7 of the Securities Act of 1933 (Act) and Section 12 (g) and (b) of the Se­ amount of deferred taxes shown on the The requirements for full and fair dis­ most recent balance sheet which will be curities Exchange Act of 1934 (Exchange closure of material information to in­ Act). In addition, Section 13(a) of the Ex­ reflected in tax expense reported in in­ vestors are a basic part of the Securities change Act requires issuers of securities reg­ come statements for each of the next Act of 1933 and the Securities Exchange istered under that Act to file reports and five years be disclosed has been revised. Act of 1934. Each Act provides that regis­ information “in accordance with such rules The revision requires disclosure of de­ tration statements filed under the Act and regulations as the Commission may ferred tax reversals only in cases where must contain, in addition to other in­ prescribe as necessary or appropriate for the the registrant expects that the cash out­ formation specified, such information “as proper protection of investors and to insure lay for income taxes with respect to any fair dealing in the security.” the Commission may by rules or regula­ 2 Section 19 (a) of the Act and Section 13 of the succeeding three years will sub- tions require as being necessary or appro­ ( b ) o f th e E x c h a n g e A ct.

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 RULES AND REGULATIONS 33283 is expected that the cash outlay for in­ computed amount, no reconciliation need to December 31,1973. The foregoing shall come taxes with respect to any of the be provided unless it would be significant be effective 30 days from the filing date. succeeding three years will substantially in appraising the trend of earnings. Rec­ By the Commission. exceed income tax expense for such year. onciling items that are individually less than five percent of the computed [ s e a l ] G e o r g e A. F i t z s i m m o n s , The Amended Rules. Inasmuch as cer­ Secretary. tain of the requirements under Rule 3-16 amount may be aggregated in the recon­ N ovember 28,1973. (0) (§210.3-16(o)) relate also to Rule ciliation. The reconciliation may be pre­ 5-02-19 (§ 210.5—02-19), prepaid expenses sented in percentages rather than in dol­ E x h i b i t lar amounts. Where the reporting person and deferred charges, and to Rule 5-02- The following example of the disclo­ 35 (§ 210.5- 02- 35), deferred credits, these is a foreign entity, the income tax rate in that person’s country of domicile sure required under Rule 3-16 (o) rules have been amended to include a [§ 210.3-16(o)] provided to assist regis­ cross-reference to Rule 3-16(o). should normally be used in making the above computation, but different rates trants in appraising the proposal and in Commission action. The Commission should not be used for subsidiaries or complying with it. hereby amends the following sections of other segments of a reporting entity. If I. Assumptions. The following facts apply 17 CFR Part 210, Chapter n , and as so the rate used by a reporting person is to a hypothetical business corporation for amended they read as follows: other than the United States Federal th e c a le n d a r y e a r 1973 (a ll fig u re s in §210.316 General Notes to Financial corporate income tax rate, the rate used thousands): Statements. (See Release No. AS—4.) Book income before tax, $15,000. and the basis for using such rate shall (1) Assets purchased at the beginning of ***** be disclosed. 1973 at a cost of $10,000, eight year (o) Income tax expense. (1) Disclo­ ***** life, double declining balance depreci­ sure shall be made, in the income state­ Section 210.5-02 is amended by revis­ ation for tax purposes, straight line on ment or a note thereto, of the compo­ books, eligible for 7% investment ing the following entries: cred it. nents of income tax expense, including: (2) Research costs of $3,000 deducted on (1) taxes currently payable; (ii) the net § 210.5—02 Balance sheets. ***** tax return but amortized over follow­ tax effects, as applicable, of (a) timing ing years for book purposes. differences (Indicate separately the 19. Prepaid expenses, and deferred charges. (3) Warranty reserve of $1,400 provided amount of the estimated tax effect of State separately any material items. Items for book purposes is not deductible each of the various types of timing dif­ properly classed as current may, however, be for tax purposes until warranty costs ferences, such as depreciation, research included under § 210.5-02-8. (See also § 210.3- are incurred. and development expense, warranty costs, 1 6 (o > .) (4) Income before taxes includes $2,000 ***** related to construction-type contracts etc. Types of timing differences that are still in process which are accounted 35. Deferred credits. State separately individually less than 15 percent of the for on the percentage of completion amounts for (a) deferred income taxes, (b) deferred tax amount in the income method for book purposes and on the deferred tax credits, and (c) material items completed contract method for tax statement may be combined. I f no in­ of deferred income. The current portion of p u rp o ses. dividual type of difference is more than deferred income taxes shall be included (5) Amortization of goodwill of $800 is five percent of the amount computed by under § 210.5-02-26. (See Accounting Series not deductible for tax purposes. multiplying the income before tax by the Release No. 102 [30 F.R. 15240].) (See also ( 6 ) Book income before taxes includes § 210.3-16(0).) applicable statutory Federal income tax $2,400 which represents the net income rate and the aggregate amount of timing ***** of wholly-owned foreign subsidiaries differences is less than five percent of In order to clarify the rules as adopted, that are expected to indefinitely in­ such computed amount, disclosure of an example of disclosure and associated vest their undistributed earnings. each of the separate types of timing dif­ assumptions and computations has been Foreign Subsidiary A is permitted ferences may be omitted.) and (b) oper­ under its local tax laws to deduct a attached as an exhibit to this release. provision for an inventory reserve re­ ating losses; and (iii) the net deferred The amendments to Regulation S-X investment tax credits. Amounts applic­ lated to increased inventory levels. have been adopted pursuant to authority The reserve would be reduced in able to United States Federal income conferred on the Commission by the Se­ periods of inventory decline. For con­ taxes, to foreign income taxes and to curities Act of 1933, particularly sections solidated financial statement pur­ other income taxes shall be stated sep­ 6, 7, 8, 10 and 19(a) thereof; the Securi­ poses, no such accrual is made and arately for each major component, un­ ties Exchange Act of 1934, particularly the associated deferred tax expense is less the amounts applicable to foreign sections 12, 13, 15(d) and 23(a) thereof; $420. The subsidiaries have reportable and other income taxes do not exceed taxes in their respective foreign Juris­ five percent,of the total for the compo­ the Public Utility Holding Company Act dictions as follows: nent. of 1935, particularly sections 5(b ), 14 and (2) If it is expected that the cash out­ 20(a) thereof; and the Investment Com­ Foreign Foreign subsid­ subsid­ Total lay for income taxes ■frith respect to any pany Act of 1940, particularly sections iary A iary B of the succeeding three years will sub­ 8, 30, 31(c) and 38(a) thereof. stantially exceed income tax expense for (S ecs. 6, 7, 8, 10, 1 9 (a ), 48 S ta t. 78, 79, 81, 85, Foreign book income before such year, that fact should be disclosed taxes______$2,100 $300 $2,400 secs. 205, 209, 48 S ta t. 906, 908, sec. 8, 68 S tat. together with the approximate amount 685 (15 U.S.C. 77f, 77g, 77h, 77j, 77s); secs. 12, Foreign Jurisdiction tax of the excess, the year (or years) of oc­ 13, 1 5 (d ), 2 3 (a ), 48 S ta t. 892, 894, 895, 901, rate percentage______- 30 50 . $ currence and the reasons therefor. secs. 3, 8, 49 S ta t. 1377, 1379, secs. 3, 4, 6, 10, Currently taxable income.. $700 $300 1,000 (3) Provide a reconciliation between 78 S ta t . 565, 569, 570, 580, secs. 1, 2, 84 S ta t. Current tax expense...... - 210 150 360 the amount of reported total income tax 1497 (15 U.S.C. 78Z, 78m, 78o(d), 78w); secs. Deferred tax expense_____ 420 . 420 5 ( b ) , 14, 2 0 (a ), 49 S ta t. 812, 827, 833 (15 expense and the amount computed by Total foreign income UJ3.C. 79e, 79n, 79t); secs. 8, 30, 3 1 (c ), 3 8 (a ), tax expense______: 630 150 780 multiplying the income before tax by the 54 S ta t. 803, 836, 838, 841, see. 3 ( c ) , 84 S tat. applicable statutory Federal income tax 1415 (1 5 U .S .C . 80a—8, 80ar-29, 8 0 a -3 0 (c ), 80ar- 3 7 ( a ) ) . ) (7) Investments sold during the year re­ rate, showing the estimated dollar sulted in a gain of $1,000, w h ic h is amount of each of the underlying causes H ie above amendments to Regulation taxed at capital gain rates of 30%. S-X shall be applicable to financial state­ ( 8 ) Included in income is $1,500 of inter­ for the difference. I f no individual re­ est on tax exempt municipal bonds. conciling item amounts to more than five ments for periods ending on or after De­ (9) State and local income taxes amounted percent of the amount computed by mul­ cember 28, 1973. Such disclosure is rec­ to $400.. . ommended but not required for financial n . Illustrative Note. Note— Income tax ex­ tiplying the income before tax by the ap­ pense (all data in thousands). plicable statutory Federal income tax statements of prior periods included in Income tax expense is made up of the fol­ rate, and the total difference to be recon­ filings with the Commission subsequent lowing components: ciled is less than five percent of such

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 No. 231—Pt. 33284 RULES AND REGULATIONS

Permanent differences: u . s . For State Goodwill amortization______. . . i . 800 hereby extended to include all of the Fed­ eign- and Total Municipal bond income...... (1,500) Washington County, Mississippi. eral local Foreign income, no domestic income tax...... i ...... (2,400) To reflect this change, the table in sec­ Capital gain...... ( 1, 000) (4,100) tion 1.2(c) of the Customs Regulations Current tax expense___ $2,312 $360 $400 $3,072 $10,500 is amended by substituting “Greenville, Deferred tax expense___ 2,328 420 2,748 Timing differences: Mississippi (including the territory de­ 4,640 780 400 5,820 Excess depreciation...... (1,250) scribed in T.D. 73-325)” for “ Greenville, R & D deducted on tax return..___ £ ...... (3,000) Warranty cost not deductible until p a id ...... 1,400 Miss. (T.D. 55697 including the territory Deferred tax expense results from timing Percentage of completion income...... (2,000) described in T.D: 55829).” in the column differences in the recognition of revenue headed “Ports of entry” in the New Or­ Taxable income (excluding capital gain).. 5,650 and expense for tax and financial statement leans, Louisiana, district (Region V ). purposes. The sources of these differences in Tax to be paid: (S ec. 1, 37 S tat. 434, sec. 1, 38 S tat. 623, as 1973 a n d th e t a x effect o f each w e re as Tax on ordinary income .48 x 5 ,6 50 ...... 2,712 fo llo w s : Plus capital gain tax .30 x 1,000...... 300 a m e n d e d ; 19 U .S .C . 1, 2 .) Less investment credit...... (700) Excess of tax over book deprecia­ It is desirable to make this extension Actual tax paid______2,312 t io n ______$600 of the port limits of Greenville, Missis­ Research and development costs Tax expense per books: sippi, available to the public as soon as expensed on tax return and de­ Tax expense on ordinary income .48 x 10,500..' 5,040 possible. Therefore, good cause is found fe rre d o n b o o k s______1, 440 Plus capital gain tax...... 300 Less investment credit...... (700) for dispensing with the delayed effective Revenue recognized on completed date provision of 19 U.S.C. 553 (d ). contract basis on tax return and Tax expense—Federal. 4,640 on percentage of completion Foreign tax. Effective date. This amendment shall basis on books______960 780 be effective December 3,1973. Tax deductible inventory reserve State and local income tax. 400 provided in foreign tax jurisdic­ [ s e a l ] E d w a r d L. M o r g a n , tio n — ------420 B. Facts affecting disclosure of net deferred Assistant Secretary Warranty cost charged to expense income taxes. of the Treasury. on books but not deductible Estimated Changes in Deferred Income [FR Doc.73-25550 Filed ll-30-73;8:45 am] u n t il p a id _ _ ^ ______(672) Tax Accounts on Balance Sheets:

$2, 748 Title 21— Food and Drugs 1974 1975 1976 CHAPTER I— FOOD AND DRUG ADMINIS­ Total tax expense amounted to $5,820 (an TRATION, DEPARTMENT OF HEALTH, Balance—beginning of year .. effective rate of 38.8%), a total less than . $10,000 $11,000 $10,500 Additions for timing differ- EDUCATION, AND WELFARE the amount of $7,200 computed by applying ences in each year 3,000 1,500 500 SUBCHAPTER A— GENERAL the U.S. Federal income tax rate of 48 % Reversals of balances at be- to income before tax. The reasons for this ginning of each year______(2, 000) (2, 000) (4,500) PART 1— REGULATIONS FOR THE EN­ difference are as follows: Balance—end of year...... 11,000 10,500 6,500 FORCEMENT OF THE FEDERAL FOOD, DRUG, AND COSMETIC ACT AND THE FAIR PACKAGING AND LABELING ACT Dollar Percent 1 N ote: Includes effect of expected expenditures in amount of pretax each subsequent period which give rise to additional income tax deferrals. Food Labeling; Spices, Flavorings, Colorings, and Chemical Preservatives C. Computations of disclosure limits per Computed “expected” tax expense.. $7,200 48.0 Rule 3-16(o) In the F e d e r a l R e g i s t e r of January Increases (reductions) in taxes re­ C o m p u te d a m o u n t, 15,000 X .48 = 7,200. 19, 1973 (38 FR 2139), the Commissioner sulting from: 5% of computed amount, 0.05 X Foreign income. subject to of Food and Drugs published a proposal foreign income tax but not ex­ 7,200=360. to revise the requirements contained in pected to be subject to U.S. 15% of deferred tax. 0.15x2.728=409. tax in foreseeable . future § 1.12 (21 CFR 1.12) with respect to the ($2,400X48%)—$780=$372...... (372) (2.5) [F R Doc.73-25608 Filed 11-29-73; 12:27 pm ] labeling of flavor when sold in bulk and Tax exempt municipal bond when contained in food. A final order income...... (720) (4.8) Investment tax credit on assets Title 19— Customs Duties on this matter was published in the purchased in 1973—...... (700) (4.7) F e d e r a l R e g i s t e r of August 2, 1973 (38 Goodwill amortization not de- CHAPTER I— UNITED STATES CUSTOMS FR 20718). ductible for tax purposes 384 2.6 SERVICE, DEPARTMENT OF THE State and local income taxes, A number of requests were received net of Federal income tax TREASURY benefit1...... 208 1.4 for reconsideration or modification of Benefit from income taxed at [T.D. 73-325] the August 2 order. The Commissioner capital gains rate (1,000 X proposed further modification of that 48%)— (1,000X30%) =$1801___ (180) (1. 2) PART 1— GENERAL PROVISIONS order in the F e d e r a l R e g i s t e r of Octo­ Actual tax expense...... $5,820 38.8 Ports of Entry; Greenville, Mississippi ber 5, 1973 (38 FR 27622), and permit­

N o v e m b e r 21, 1973. ted four weeks for comment. Comments 1 Since these amounts are less than 5 percent of the com­ On September 7, 1973, notice of a pro­ were received from a number of organi­ puted “expected” tax expense, they could be combined zations, companies, and individuals. with any other items less than $360 into an aggregate posal to extend the port limits of Green­ total. For example, these items could be disclosed as The Commissioner has reviewed all of follows: “Miscellaneous items * * * $28 * * * 0.2 percent.” ville, Mississippi, in the New Orleans, If no single item had exceeded $360 in this case and the Louisiana, Customs district (Region V ), the comments and petitions submitted total net difference of all items was also less than $360, with respect to the January 19 and Oc­ this reconciliation would not have been required. was published in the F e d e r a l R e g i s t e r (38 FR 24374). No comments were re­ tober 5 proposals and the August 2 order, Based upon currently anticipated expen­ ceived regarding this proposed exten­ in promulgating the final regulation set ditures and operations, it is expected sion. out below. The major points that have that the deferred income tax balance will been made with respect to the August 2 b e s u b s t a n t ia lly re d u c e d in 1976 a n d th e Accordingly, by virtue of the authority vested in the President by section 1 of order and the October 5 proposal, and cash outlay for taxes associated with that the Commissioner’s conclusions, are as year will exceed tax expense by approxi­ the Act of August 1, 1914, 38 Stat. 623, follows: mately $4,000, primarily due to the book as amended (19 U.S.C. 2), and delegated amortization in that year of research and 1. Several comments, concurring with development expense previously deducted to the Secretary of the Treasury by Ex­ the proposal to delete the broad category for tax purposes. ecutive Order No. 10289, September 17, of “reaction products” from the defini­ I I I . Computational Guide. (Furnished 1951 (3 CFR Ch. I I ), and pursuant to tion of natural flavor in § 1.12(a) (3), only to enable interested parties to deter­ mine source of numbers shown in above the authorization provided by Treasury stated that the definition should further illustrative note; not to be required of reg­ Department Order No. 190, Rev. 9 (38 be revised to permit products obtained by roasting, heating, or enzymolysis. It istrants in filings.) FR 17517), the port limits of Greenville, A. Tax computations was pointed out that such products have Book income before tax $15,000 Mississippi, in the New Orleans, Louisi­ traditionally been regarded as natural State income tax (400) ana, Customs district (Region V ), are flavors.

FEDERAL REGISTER, V O L 38, NO. 231— M O N D AY, DECEMBER 3, 1973 RULES AND REGULATIONS 33285

The Commissioner concurs in this such circumstances, the presence of arti­ occurs the consumer will be fully pro­ comment and the definition has been so ficial or natural flavor, or both, may be tected since all the characterizing flavor revised. declared simply in the statement of in­ in the product will still be from natural 2. Several comments suggested that gredients, as permitted by sections 403 sources. “other reaction products” should be re­ (i> and (k) of the act. 12. There was comment that a deter­ tained but modified in a way that would 8. One comment requested clarifica­ mination whether there is a “sufficient” not permit the broad construction which tion of the circumstances under which a quantity of a characterizing food ingre­ led the Commissioner to propose its de­ food name would make representations dient to characterize the food independ­ letion in the October 5 notice. One com­ with respect to flavor. ent of any added natural characterizing ment suggested that “ cooking” would be The Commissioner concludes that it is flavor involves subjective judgment, and an adequate substitute. not possible to set out all circumstances • that the distinction between the two situ­ The Commissioner concludes that the under which a flavor representation is or ations is so subtle as to have little mean­ addition of "roasting, heating, or enzym- is not implied. Any use of a vignette ing to the consumer. olysis” is sufficient to cover flavoring con­ showing a fruit or vegetable clearly con­ The Commissioner recognizes that this stituents long regarded as natural in stitutes such a representation. Designa­ determination will in some instances be origin, and to exclude those, such as tion of a soft drink as a “cola” beverage difficult to make. The difference between vanillin, which are essentially synthetic or ginger ale or root beer, or with well- a product that contains a characteriz­ and result from chemical reactions. recognized proprietary brand names, does ing food ingredient and a product that 3. One comment requested that the not constitute a flavor representation. On contains no such ingredient, however, is word “fish” be replaced with the broader the other hand, use of a specific fruit not at all subtle, and is very important term “seafood” in the definition of a flavor in the food name, such as “ orange to the value of the product and thus to natural flavor. soda,” does constitute such a represen­ the consuming public. This was the intent of the earlier defi­ tation and requires compliance with 13. A comment suggested that the nition, and thus the Commissioner con-, § 1.12(i). The Commissioner will provide term “ingredient” should be substituted curs with this comment and has changed advisory opinions with respect to specific for “ component” in proposed § 1.12 (i) the definition accordingly. terminology upon request. ( 1) (i) and ¿ii). 4. Comments requested that the term The Commissioner concurs with this 9. One comment suggested that the comment and final § 1.12 (i) ( 1) (i) has “protein” be added to the term “hydroly­ term “characterizing flavor” referred to sate” in the definition of a natural flavor in § 1.12(i) should be replaced with the been so revised. in order to clarify the intent. phrase “primary recognizable flavor.” 14. Comments pointed out that use of the non-specific term “flavor added” or The Commissioner concurs with this This would permit additional use of “ flavored” in the proposal is inconsistent comment and has so revised the defini­ minor spices without their being declared with the statement made by the Com­ on the principal display panel. tion. missioner in the preamble to his Au­ 5. One comment argued that the defi­ The Commissioner concurs in this gust 2 order that this designation is not nition of artificial color in § 1.12(a) (4) suggestion and the provision has been so meaningful to consumers. should not include natural substances revised. It is not intended that individual The Commissioner does not agree with such as beet juice. spices added, for example, to canned this comment. The concern expressed in The Commissioner points out that, foods be required to be separately de­ the preamble to the August 2 order re­ where beet juice is used to color food clared on the principal display panel as lated to the use of the non-specific term in which it is not naturally found, it is part of the name of the food where they “flavored” where part of the character­ being used as an artificial color for those are not the primary flavor and are added izing flavor is artificial. The Commis­ products. Nothing in § 1.12 would pro­ for garnishment purposes. sioner has no objection to use of the hibit the food manufacturer in those cir­ 10. Comments were submitted that use term “flavored” where all the charac­ cumstances from declaring the presence of the term “ artificial” misleads the terizing' flavor is natural in origin. of natural beet juice, either on the prin­ public into believing that an artificial 15. Comments suggested that, in cipal display panel or in the statement of flavor is in some way inferior to a natural § 1.12(i) (1) and (2), the only important ingredients. Thus, any manufacturer who flavor. Comments pointed out that there issue is the nature of the characteriz­ wishes to use fully informative labeling is no available evidence to indicate any ing flavor. of this type will be permitted to do so, difference in safety or nutritional value The Commissioner concurs with this and no change in the regulation is need­ between a naturally occurring flavor and comment, and has revised these pro­ ed. its synthetic counterpart. visions to refer to flavor which “simu­ 6. One comment states that the term The Commissioner concurs with the lates, resembles or reinforces the char­ “artificial color” in section 403(k) of the comment that an artificial flavor is no acterizing flavor.” The addition of nat­ Federal Food, Drug, and Cosmetic Act less safe, no less nutritious, and not in­ ural or artificial non-characterizing was intended by Congress to apply solely herently Jess desirable, than a natural flavor may properly be designated in the to coal tar colors. The comment admits flavor. The sole purpose for distinguish­ statement of ingredients as such and that there is little legislative history on ing between natural and artificial flavors may include the name of the ingredi- this point. is for economic reasons. In most in­ ent(s). Foi example, in a “ chocolate The Commissioner concludes that col­ stances, natural flavor is more expensive pudding” which contains cocoa and oring derived other than from the same than artificial flavor. Where a label cre­ vanillin, it will be unnecessary to state type of food to which the color is being ates an impression that a natural flavor on the principal display panel as the added is properly characterized as arti­ is present, the consumer has the right to October 5 notice had proposed, that the ficial. As already noted, any consumer rely upon that implication or represen­ product contains artificial vanilla flavor. confusion can readily be avoided by a tation. Under the final regulation, this may be statement that the product contains the 11. It was suggested that § 1.12(i) (1) stated in the statement of ingredients. specific natural ingredient involved. (i) should be deleted, on the ground that Thus, the “except” clause is also deleted 7. Numerous comments indicated there is no need to declare the flavor in from § 1.12X1) (2). widespread failure to understand the the name if enough characterizing in­ 16. Similarly, there was comment that, relatively limited circumstances under gredient is present and natural char­ in proposed § 1.12 (i) ( 1) (iii), there is no which § 1.12 (i) will apply. Several com­ acterizing flavor is added to enhance or need to state on the principal display ments reflected the erroneous interpreta­ stabilize the flavor of the food. panel the presence of natural flavor that tion that all food must be so labeled with The Commissioner agrees with this is not derived from the product whose respect to its flavor content. comment and this provision has been flavor is simulated. The Commissioner advises that, if a deleted. It is unlikely that a food with a The Commissioner does not concur in food makes no direct or indirect repre­ characterizing ingredient would also con­ this comment. I f there is no flavor what­ sentations with respect to flavor, the pro­ tain added natural characterizing flavor, ever from the product whose flavor is visions of § 1.12(i) are inapplicable. In and in those few instances where this simulated, the product is properly labeled

FEDERAL REGISTER. VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 33286 RULES AND REGULATIONS

as artificially flavored. I f the product there are too many categories of flavor 20. Some comments argued that sec­ contains both flavor from the product labeling. tion 403 (k) of the act requires the label whose flavor is simulated and other nat­ The Commissioner concurs with this declaration of artificial flavor only in ural flavor which simulates that flavor, comment. For that primary reason, thé the statement of ingredients, and does it may be labeled “with other natural number of total categories of flavor la­ not require such declaration on the prin­ flavor.” If the product contains both beling in the final regulations has been cipal display panel. flavor from the product whose flavor is reduced to five. For the vast majority The Commissioner concurs with this simulated and other natural flavor which of foods, which contain added flavor but comment. Section 1.12(0 is required by does not simulate that flavor, it will be no characterizing food ingredient, there sections 201 (n), 402(b), and 403(a) of labeled simply as containing the flavor will bé only the following three labeling the act. These provisions state that a involved, pursuant to § 1.12(1) tt). Ac­ categories : food is adulterated if a less expensive in­ cordingly, the “except” clause is retained 1. Where the characterizing flavor is gredient is substituted for a more ex­ in § 1.12 (i) (1), and clarified in new solely natural and is derived from the pensive ingredient so as to make the food § 1.12 (i) ( 1) (ii) and (iii). product whose flavor is simulated, the appear to be of greater value than it is, 17. Questions have arisen as to how food will be labeled only with the name or if the labeling is false or misleading the “characterizing flavor” is to be deter­ of the flavor (e.g., “lemon pudding” ) . as a result of any statement or failure to mined, and as to how it will be deter­ 2. Where the characterizing flavor is reveal a fact that is material in the light mined whether added flavor “simulates” solely natural and is derived partly from of other representations. In the opinion a characterizing natural flavor or the product whose flavor is simulated of the Commissioner, the substitution of otherwise characterizes the product. and partly from other natural sources, a characterizing artificial flavor for a The Commissioner advises that the the food will be so labeled (e.g., “ lemon natural flavor, and the failure promi­ characterizing flavor is that which is pudding, with other natural flavor” ) . nently to reveal the presence of a char­ represented in labeling or advertising as 3. Where (a) the characterizing flavor acterizing artificial flavor, is in violation the product flavor, or that which is in is solely natural and is derived solely of these provisions when the labeling for any event the primary recognizable fla­ from sources other than the product a food otherwise represents or implies vor of the finished food. In determining whose flavor is simulated, or (b) any the presence of a characterizing natural whether added flavor does or does not part of the characterizing flavor is ar­ flavor. simulate, resemble, or reinforce the tificial, the food will be labeled “arti­ 2L Some comments argued that flavor characterizing flavor, the principal test ficially flavored” (e.g., “ lemon pudding, designation should be limited to the will be to separate such added flavor artificially flavored”) . statement of ingredients. from the product to determine whether For those foods which the consumer The Commissioner agrees that this is it tastes like the characterizing natural expects to contain characterizing food sufficient where the manufacturer makes flavor or approximates the flavor char­ ingredient (e.g., strawberries in straw­ no direct or indirect representation with acteristics of any principal or key flavor berry shortcake or peaches in peach p ie), respect to the flavor of the product other note. Thus, the vanillin added to a choco­ two additional labeling categories will than in the ingredients statement. Where late pudding would clearly not be a char­ exist : such representations are made on the acterizing flavor because it does not Where the food does not contain a suf­ principal display panel or in other pro­ taste like chocolate, whereas the benz- ficient amount of that food ingredient motional material, however, it is neces­ aldehyde added to a cherry juice would independently to characterize the food sary to establish a uniform system of be an artificial flavor because it does and it contains added natural character­ flavor designation to dispel any confu­ reinforce and extend the cherry taste. izing flavor, it shall be labeled as a sion or misrepresentation. It must be emphasized that the test is naturally flavored food (e.g., either 22. One comment objected to proposed not solely whether an artificial flavor “natural peach flavored pie” or as § 1.12(i) ( 1) (iii) on the ground that simulates or is chemically identical to “natural peach flavored pie, with other citrus oils have been used to make “or­ the characterizing natural flavor, but natural flavors,” depending upon ange” beverages for over 50 years and also more broadly whether it resembles, whether all or only part of the charac­ should be allowed to continue. reinforces, or extends it. At the same terizing flavor is derived from the prod­ The Commissioner has no objection to time, this test does not include all artifi­ uct whose flavor is simulated. The ini­ this use of citrus oils, but believes that, cial flavor, such as artificial flavor that tial use of the word “natural” is op­ if they simulate, resemble, or reinforce a merely modifies, rounds out, or gives a tional.) characterizing flavor, and the food con­ particular cast to an existing flavor , These are the only five labeling pat­ tains no natural orange flavor, the con­ without reinforcing or increasing it or terns that will be required to be used sumer is entitled to understand that the otherwise making it appear that more on the principal display panel under the product is made solely with flavor other is present than is actually in the product. final regulation. All other designations than that from oranges. I f natural or­ Thus, benzaldehyde is a characterizing of flavors contained in the October 5 ange flavor is used in conjunction-with flavor in cherry but not in cinnamon; proposal will appear in the statement of other natural citrus oils that simulate, allyl hexanoate is a characterizing flavor ingredients. Thus, the final regulation resemble, or reinforce it, the product is in pineapple but not in orange; and ethyl vastly simplifies labeling while at the properly labeled “with other natural valerate is characterizing in apple but same time informing consumers of the flavor.” Under these circumstances, not in raspberry. In the vast majority essential nature of the characterizing auxiliary statements explaining that the flavoring used. of instances, the conclusion will be clear- flavor is derived from natural citrus oils cut and readily accepted by flavor tech­ 19. A comment contended that the Oc­ tober 5 proposal would require unneces­ are permissible and sufficient fully to in­ nologists. The Commissioner believes sarily long names for products relating form the consumer. that it would be feasible and appropriate solely to the source of the flavor. The to prepare a list of individual flavors or 23. A comment objected to proposed comment stated that, while it may be combinations showing the circum­ § 1.12CD ( 1) (iii) on the ground that it is important that the name inform the stances under which they are character­ misleading to label a natural flavor as consumer whether the characterizing izing for particular flavor uses. The flavor is natural or artificial, there is “artificial” when it is used to simulate Commissioner, recognizes that this will little or no need to point out in the name another natural flavor. It was suggested in some instances involve judgmental that other natural or artificial non-char­ that a phrase such as “beef-like flavor” factors, but believes that this require­ acterizing flavors are also used. It was ment is as enforceable as any that be permitted. suggested that it is sufficient if these non­ As already noted, the consumer is en­ could be adopted. characterizing flavors are shown in the 18. A large number of comments ingredient statement. titled to terminology which clearly dis­ stated that all of § 1.12 (i) as proposed - The Commissioner concurs with this tinguishes between the use of a natural in the October 5 notice is confusing both comment and the regulation has been so flavor derived from the type of product to industry and to consumers, in that revised. involved, and natural flavor derived from

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 RULES AND REGULATIONS 33287

manufacturer from a label statement 29. A number of comments suggested other sources. As has already been specific alternatives to the flavor desig­ pointed out, truthful auxiliary state­ about the presence of such natural fla­ vor, as long as such statement is truth­ nations proposed in the October 5 notice. ments may be utilized by the manufac­ The Commissioner has considered all turer to explain such other natural ful and not misleading. The presence of natural flavor is also required to be de­ of the specific suggestions made and be­ flavors. , , ,, lieves that the purpose of simplification 24. Several comments suggested that, clared in the statement of ingredients. Since the manufacturer may properly of terminology that these comments con­ while the intended application of the vey is satisfied by the final regulation August 2 order was clear, the modifica­ designate the presence of natural flavor under these circumstances both with being promulgated. tion proposed in the October 5 notice was 30. A question was raised about the so complex as to be confusing. Two com­ such auxiliary explanations and in the statement of ingredients, there is no proper labeling of products containing ments submitted recommended new lan­ cocoa, which have in the past been guage designed to change the format as validity to the contention that the reg­ ulation requires misleading labeling. labeled as “ chocolate.” well as to change the substance. The Commissioner advises that such The Commissioner concurs that the 27. One comment argued that, since the regulation requires a product con­ products as chocolate pudding, made language in the October 5 proposal was from cocoa rather than chocolate, may complex. This complexity was the result taining 99 percent natural flavor and 1 percent characterizing artificial flavor to continue to be labeled as “ chocolate of attempting to recognize the numer­ pudding” because the consumer has long ous flavoring combinations used, and to be labeled “.artificially flavored,” it is recognized that this product may be provide labeling that would accurately unreasonable and results in misleading labeling. made from cocoa and does not expect it convey those combinations to the con­ to contain chocolate. A chocolate bar, on sumer. Those various combinations have The Commissioner does not agree with the other hand, is expected to contain to a significant extent been reduced for this contention. First, it is well within labeling purposes in this order. As re- > the power of the food manufacturer to chocolate and may not be made from cocoa without being labeled as a “natural vised, the final regulation is internally replace the 1 percent artificial flavor chocolate flavored” or “ chocolate flav­ consistent and symmetrical. If all the with natural flavor. If he does not do so, characterizing flavor is natural and de­ it is obvious that the characterizing ar­ ored” candy. 31. A comment recommended deleting rived from the product whose flavor is tificial flavor is indeed important to the simulated, the principal display panel of product, and thus that its presence the requirement that the characterizing the food is labeled solfely with the name should forthrightly be made known to flavor be half the size of the name of the of that food and any other non-charac­ consumers. Second, it is well known that food. It was suggested that this require­ terizing natural or artificial flavor need artificial flavor is often concentrated, and ment might result in the name of the be declared only in the statement of in­ thus has several times the strength, of food appearing in a relatively smaller gredients. If any part of the characteriz­ an equivalent quantity of natural flavor. type size. ing flavor is not derived from the product Some artificial flavors, for example, are The Commissioner does not concur whose flavor is simulated, the principal 20 to 50 times as strong as the same with this suggestion. The law and regu­ display panel of the food is labeled with amount of> natural flavor. Thus, the level lations require that the name of the its source, either “with other natural of use of the ingredient is not indicative food appear prominently and conspicu­ flavor” or “ artificially flavored.” The of its importance to the product or its ously, and that the label be designed to Commissioner concludes that the revised impact on the product’s flavor. Third, meet this requirement. It is important language is sufficiently straightforward use of the term “artificially flavored” that the characterizing flavor also be to make any substantial change in for­ is literally true, and in no sense mislead­ sufficiently prominent. mat unnecessary. ing, whenever any amount of a charac­ 32. A comment stated that there is no 25. Comments suggested a retuni to terizing artificial flavor is used. It must reason to require that the information the “predominance” test contained in the be remembered that there is no require­ pertaining to flavor accompany the name January 19 proposal, and suggested an ment that a food manufacturer make of the food everywhere it appears on the arbitrary standard of 50 percent by any flavor representation with respect to label. weight as a test of predominance. his food, and thus the invocation of The Commissioner advises that, pur­ On the basis of all the comments sub­ § 1.12 (i) is entirely at the option of the suant to § 1.12(i) (3), it is sufficient that mitted on the two proposals and prior manufacturer. A manufacturer cannot this information appear only where the order, the Commissioner concludes that exercise his discretion to make a flavor name of the characterizing flavor such a standard is too susceptible of representation about his product, and appears. ambiguity and uncertainty to be enforce­ then complain that he is required to 33. A comment suggested that the re­ able. Organoleptic tests have variable qualify that representation in a way that quired type size for the word “artificial” results. The arbitrary 50 percent stand­ will be accurate and truthful. As already be half the size of the name of the prod­ ard suggested, or any other arbitrary noted, any situation in which the na­ uct rather than half the size of the name standard, would be inaccurate more often tural flavor is an important element can of the flavor. than it is accurate. Even with full rec­ easily be the subject of auxiliary explan­ The Commissioner concludes that the ords inspection, therefore, the predomi­ atory statements that will be fully in­ type size for the term “ artificial” (or nance test is too uncertain to serve as a formative to the consumer. “natural”) is logically related to the regulatory standard for most foods. 28. Representatives of the dairy indus­flavor designation, not the product name. 26. It was suggested that, if both na­ try urged that the Commissioner not re­ It is the flavor, and not necessarily the tural and artificial characterizing flavor vise the present provisions of the ice product, which is artificial. is used, the label should be permitted to cream standard and of the pasteurized 34. One comment suggested that the state “natural and artificial flavor.” milk ordinance to substitute the new regulation should permit the use of such a generic term as “ fru it------” where The Commissionfer does not concur I labeling requirements contained in § 1.12 (i) for the former three-category label­ three or more characterizing flavors are with this suggestion. In order to deter­ used, so that it is unnecessary to spell mine whether the term “natural” or the ing now applicable to those products. The Commissioner has not yet con­ out each separate flavor. term “ artificial” should come first, it The Commissioner concurs with this would again be necessary to determine cluded whether the ice cream standard which predominates in flavor, strength. should be revised in this respect. Any comment, and the regulation has been As already noted, the Commissioner con­ such revision would be proposed by F e d ­ revised accordingly. In situations where cludes that this would not be enforce­ e r a l R e g i s t e r publication and with full such a collective term is used, the same able. The Commissioner also advises that opportunity for consumers, State offi­ rules will apply with respect to declara­ where a food is required to be labeled cials, and the affected industry to partic­ tion of natural and artificial flavor as as “ artificially flavored” and it also con­ where the common or usual name of each tains some natural flavor, nothing in ipate in the decision through conferences § 1.12 or other regulations prohibits the and the submission of comments. flavor is used.

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 33288 RULES AND REGULATIONS

35. One comment requested that a 38. Several comments viewed § 1.12 nounced inspections. The Commissioner vignette be permitted in lieu of such col­ (i) (4) as an affront and an insult to agrees that, because of the secret nature lective terms as “ fruit’.’ or “vegetable” honest businessmen. of flavor formulas, and the fact that only where three or more characterizing The Commissioner believes that these certain company personnel may be au­ flavors are involved. enforcement provisions are a protection thorized to handle them, arrangements The Commissioner concludes that this for the honest businessman against un­ may be required for an inspector to re­ could be confusing and misleading as the scrupulous competition. The existence of turn at a later date to receive specific consumer would not be able to tell from reasonable enforcement provisions in no requested information if the authorized a vignette alone whether the character­ way suggests that businessmen are un­ personnel are, for example, out of town izing flavor was natural or artificial. trustworthy. at the time of the inspection. If the au­ 36. A large number of comments ar­ 39. It was pointed out that flavor thorized company personnel are avail­ gued that the enforcement provisions formulas are extremely valuable trade able, however, there is no reason why in § 1.12(1) (4) are unlawful and unrea­ secrets which deserve special protection. an inspection cannot proceed immedi­ sonable. It was contended that there is The Commissioner agrees fully with ately. The regulation has been revised no authority for this provision in section this comment. Because of this considera­ to incorporate the substance of this com­ 701(a) or section 704(a) of the act, and tion, § 1.12 (i) (4) has been revised ex­ ment. that it violates the Fourth Amendment tensively to incorporate a number of 44. It was suggested that it would be to the United States Constitution. specific protective provisions to mini­ unreasonable to require verification of The Commissioner concludes that the mize any possibility that the confiden­ all flavor formulas, of which there may statute authorizes an enforcement pro­ tiality of such trade secrets will be lost be thousands for any given company. vision of this type where, as the com­ or that the enforcement provisions may The Commissioner eoncurs with the ments on the January 2 proposal and be abused. The Commissioner believes intent of this comment. It is not always general chemical knowledge readily dem­ that, as revised, §1.12(1) (4) contains possible for an inspector to specify in onstrate, the requirements of the law very reasonable enforcement provisions the notice of inspection the exact for­ and the regulations cannot otherwise be designed to protect both the industry mulas he wishes to verify, but it is un­ enforced. It is well known that chemical from unfair competition and the con­ likely that verification of all formulas analysis is incapable of distinguishing sumer from adulterated and misbranded would be undertaken. The regulation has between a natural flavor and its syn­ food. been revised to state that, wherever pos­ thetic counterpart. Economic adultera­ 40. It was suggested that the certifica­ sible, verification shall be undertaken on tion and misbranding of flavors has been tion requirement not be applied to a user a reasonable number of certifications, a major problem in the food industry. unless the user himself adds another constituting a representative sample of Without some form of certification and flavor to a flavor which he has pur­ such certifications. The Food and Drug records inspection, there is no way what­ chased. Administration also intends to solicit, ever to enforce the requirements of the The Commissioner agrees that this is and to investigate, specific industry com­ law and regulations. The Fourth Amend­ reasonable and the regulation has been plaints about competitive flavors which ment permits reasonable inspection of so revised. do not appear to be labeled in accord­ records. Section 701 (a) of the act permits 41. A comment suggested that the cer­ ance with § 1.12, and under these cir­ the Commissioner to promulgate regula­ tification requirement could be satisfied cumstances verification may be re­ tions for the efficient enforcement of the by a guarantee under section 303(c) (2) quested fo r only a very few formulas. act, and the Supreme Court has stated of the act, such as tire guarantees set Where a compliance problem is found, that “ where the empowering provision out in § 1.5 of the regulations. of course, no restriction on the number of a statute states simply that the agency The Commissioner agrees that the cer­ of verification requests would apply. may ‘make * * * such rules and reg­ tification required by § 1.12 (i) (4) may be 45. A comment stated that an in­ ulations as may be necessary to carry included in a guarantee, but the general spection should be limited to qualitative out the provisions of this Act,’ we have wording of the guarantee forms set out formulas and should not extend to held that the validity of a regulation in § 1.5 is insufficient for compliance quantitative formulas. promulgated thereunder will be sus­ with this provision.. The purpose of a The Commissioner agrees, and the tained so long as it is ‘reasonably related certification is to require the flavor sup­ regulation has been so revised. The to the purposes of the enabling legisla­ plier explicitly to state that the product quantitative formula is not necessary to tion.’ ” Mourning v. Family Publications contains no artificial flavor and that he enforce compliance. Service, Inc. (decided April 24, 1973). has not added any artificial flavor to it. 46. It was urged that neither the for­ Section 409 allows limitations on use of 42. Comments suggested that refer­ mula nor any notes on it should be taken food additives, section 702 allows the ence to 18 U.S.C. 1001 was unlawful and from the premises of the manufacturer Commissioner to conduct examinations unnecessary. except if a compliance problem is found,; and investigations for the purposes of The Commissioner concludes that, and then that the information should be the act, section 703 allows inspection of under the applicable law, the certifica­ sealed and delivered to the General the records of interstate shipments, and tion and guarantee is a report to the Counsel of the Food and Drug section 704 allows factory inspection of government and is subject to both 18 Administration. materials and labeling. In view of the U.S.C. 1001 and sections 301(g) and 303 Although the Commissioner concurs, fact that the act would otherwise be un­ (a) of the act. The Commissioner be­ with the intent of protecting trade enforceable, the Commissioner concludes lieves it appropriate that the regulations secrets, he concludes that the provisions that reasonable certification and records explicitly state this fact, as ample warn­ suggested in this comment are unduly inspection provisions are fully warranted ing to any person who makes a false cer­ restrictive. Not all verification activity and authorized. tification and guarantee. Those who can be conducted on the premises. Where 37. It was contended that the provi­ make only honest certifications and inspection of other purees is also neces­ sions of § 1.12(i) (4) are unnecessary be­ guarantees will, of course, have nothing sary for this purpose, such notes and cause the criminal provisions of the law to fear from this provision. formulas must be retained. Similarly, provide ample protection against cheat­ 43. It was requested that advance no­ notes must be available for the purpose ing. tification of inspections regarding veri­ of making inspectional reports. The The Commissioner notes that the crim­ fication of certifications be given, to per­ regulation therefore provides reasonable inal provisions of the law provide no pro­ mit the company to have the authorized restrictions on such notes and formulas tection whatever unless cheating can be personnel available and to obtain the ap­ without precluding their use for legiti­ detected. The sole purpose of § 1.12 (i) propriate records. mate verification purposes. (4) is to detect such cheating, which The Commissioner concludes that it 47. A comment requested the addition would otherwise go wholly undetected is essential that the Food and Drug Ad­ of an exemption for food Sold to institu­ and unpunished. ministration continue to make unan­ tional customers only, where all the

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 RULES AND REGULATIONS 33289 necessary flavor information is supplied Therefore, pursuant to provisions of which the flavor is derived or as “artifi­ directly to such customers. the Federal Pood, Drug, and Cosmetic Act cially flavored.” The Commissioner concludes that such (secs. 402, 403, 409, 701(a), 702, 703, 704, (iii) I f the food contains both a char­ an exemption has not been justified and 52 Stat. 1046,1047,1048-1049 as amended, acterizing flavor from the product whose is unwarranted. The comment suggested 1055, 1056-1057 as amended; 21 U.S.C flavor is simulated and other natural no hardship with respect to applying 342, 343, 348, 371(a), 372, 373, 374) and flavor which simulates, resembles or rein­ § 1.12 (i) to food sold to institutional under authority delegated to the Com­ forces the characterizing flavor, the food customers. The labeling established by missioner (21 CFR 2.120), Part 1 is shall be labeled in accordance with the this regulation is reasonable, compact, amended by revising § 1.12 (a) (3) and (i) introductory text and paragraph ( i ) ( l ) and would appear to be even simpler to to read as follows: (i) of this section and the name of the apply to the usual large packaging used food shall be immediately followed by the §1.12 Food labeling; spices, flavorings, __ words “ with other natural flavor” in let­ for institutional purposes than to the colorings and chemical preservatives. smaller retail packaging. Without such ters not less than one-half the height of labeling on institutional packaging, (a) * * * the letters used in the name of the char­ state and local enforcement officials (3) The term “natural flavor” oracterizing flavor. would be unable to supervise application “natural flavoring” means the essential (2) If the food contains any artificial of their laws and regulations involving oil, oleoresin, essence or extractive, pro­ flavor which simulates, resembles or re­ truthful representations about food sold tein hydrolysate, distillate, or any prod­ inforces the characterizing flavor, the uct of roasting, heating or enzymolysis, in retail food service establishments. Ac­ name of the food on the principal dis­ cordingly, no such exemption has been which contains the flavoring constituents play panel or panels of the label shall derived from a spice, fruit or fruit juice, be accompanied by the common or usual included in the regulations. vegetable or vegetable juice, edible yeast, 48. There were objections to the short name(s) of the characterizing flavor, in herb, bark, bud, root, leaf or similar plant time available for public comment on the letters not leiss than one-half the height October 5 proposal, and to the statement material, meat, seafood, poultry, eggs, of the letters used in the name of the dairy products, or fermentation products that the Commissioner intends to issue food and the name of the characterizing a final regulation within a few days after thereof, whose significant function in flavor shall be accompanied by the food is flavoring rather than nutritional. word(s) “artificial” or “artificially the time for comment expires., Natural flavors include the natural es­ The four-week time for' comment flavored,” in letters not less than one- sence or extractives obtained from plants meets all the requirements of the Ad­ half the height of the letters in the name listed in § 121.101(e) of this chapter, and of the characterizing flavor, e.g., “artifi­ ministrative Procedures Act. Until rel­ the substances listed in § 121.1163 of this atively recently, the standard time for cial vanilla,” “artificially flavored straw­ comment on all Pood and Drug Admin­ chapter. berry”, or “grape artificially flavored”. istration regulations was 30 days. The * * * * * (3) Wherever the name of the char­ urgency of this particular matter was (i) If the label, labeling, or advertisingacterizing flavor appears on the label dictated by the desire of the Commis­ of a food makes any direct or indirect re­ (other than in the statement of ingredi­ sioner to promulgate a final regulation presentations with respect to the primary ents) so conspicuously as to be easily governing flavor designation as quickly recognizable flavor(s), by word, vignette, seen under customary conditions of pur­ as possible, to permit the maximum lead e.g., depiction of a fruit, or other means, chase, the words prescribed by this par­ time feasible for food manufacturers to or if for any other reason the manufac­ agraph shall immediately and conspicu­ meet the uniform effective date require­ turer or distributor of a food wishes to ously precede or follow such name, with­ ments for the various food labeling designate the type of flavor in the food out any intervening written, printed, or regulations that have been promulgated. other than through the statement of in­ graphic matter, except: The Commissioner believes that the gredients, such flavor shall be considered (i) Where the characterizing flavor quality of the comments that have been the characterizing flavor and shall be de­ and a trademark or brand are presented submitted on this proposal demonstrate clared in the following way: together, other written, printed,' or that the amount of time provided was (1) If the food contains no artificialgraphic matter that is a part of or is sufficient. flavor which simulates, resembles or rein­ associated with the trademark or brand 49. Comments suggested that the forces the characterizing flavor, the name may intervene if the required words are March 15, 1974, deadline for ordering of the food on the principal display panel in Such relationship with the trademark new labels and the December 31, 1974, or panels of the label shall be accom­ or brand as to be clearly related to the deadline for using up old labels should panied by the common or usual name of characterizing flavor; and be extended. the characterizing flavor, e.g., “vanilla”, (ii) If the finished product contains The Commissioner concludes that in­ in letters not less than one-half the more than one flavor subject to the re­ adequate justification for any extension height of the letters used in the name of quirements of this paragraph, the state­ was provided. The need to revise labels the food, except that: . ments required by this paragraph need has been known for almost a year. Ex­ (i) I f the food is one that is commonly appear only once in each statement of ceptions to the deadlines will be granted expected to contain a characterizing characterizing flavors present in such only on the basis of extreme hardship, food ingredient, e.g., strawberries in food, e.g., “ artificially flavored vanilla and will require a showing that due “strawberry shortcake” , and the food and strawberry.” diligence has been observed in placing contains natural flavor derived from such (iii) I f the finished product contains orders and that, without an extension, ingredient and an amount of characteriz­ three or more distinguishable character­ the food product will be removed from the ing ingredient insufficient to independ­ izing flavors, or a blend of flavors with no market. Such extensions will be ex­ ently characterize the food, or the food primary recognizable flavor, the flavor tremely rare. contains no such ingredient, the name of may be declared by an appropriately 50. A comment asked for permission to the characterizing flavor may be imme­ descriptive generic term in lieu of nam­ use left-over seasonal labels (e.g., Easter, diately preceded by the word “natural” ing each flavor, e.g., “artificially flavored Mother’s Day, Christmas, etc.) for an ad­ and shall be immediately followed by the fruit punch” . ditional year. word “flavored” in letters not less than (4) A flavor supplier shall certify, in The Commissioner concludes that since one-half the height of the letters in the writing, that any flavor he supplies which such labels may be used in 1974, no exten­ name of the characterizing flavor, e.g., is designated as containing no artificial sion will be granted except in extreme “natural strawberry flavored shortcake,” flavor does not, to the best of his knowl­ hardship cases. The industry is aware of or “strawberry flavored shortcake” . edge and belief, contain any artificial the inadvisability of ordering extensive (ii) I f none of the natural flavor used flavor, and that he has added no artificial inventories of seasonal labeling, and the in the food is derived from the product flavor to it. The requirement for such Commissioner is unable to grant permis­ whose flavor is simulated, the food in certification may be satisfied by a guar­ sion to continue to use such non-com­ which the flavof is used shall be labeled antee under section 303(c) (2) of the act plying labeling as a general exception. either with the flavor of the product from which contains such a specific statement.

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 33290 RULES AND REGULATIONS

A flavor used shall be required to make and shall not include the quantitative meaning of section 1504 should be con­ such a written certification only where formula. The person verifying the cer­ sidered. The regulations as adopted make he adds to or combines another flavor tifications may make only such notes as it clear that the exclusion provided bv with a flavor which has been certified by are necessary to enable him to verify section 9 0 4 (f)(2 )(A ) or 904(f)(2)(B) a flavor supplier as containing no artifi­ such certification. Only such notes or applies only to interest derived from a cial flavor, but otherwise such user may such flavor ingredient records as are nec­ transaction which is directly related to rely upon the supplier’s certification and essary to verify such certification or to the active conduct by the taxpayer of a need make no separate certification. show a potential or actual violation may trade or business or derived in the con­ All such certifications shall be retained be removed or transmitted from the cer­ duct by the taxpayer of a banking, fi­ by the certifying party throughout the tifying party’s place of business: Pro­ nancing or similar business. period in which the flavor is supplied and vided, That, where such removal or for a minimum of three years thereafter, The last clause of the last sentence of transmittal is necessary for such pur­ § 1.904—4(b) (1) in the regulations as and shall be subject to the following poses the relevant records and notes proposed has been deleted. The sentence conditions: shall be retained as separate documents as proposed established the rule that the (i) The certifying party shall make in Food and Drug Administration files, period of time during which the tax­ such certifications available upon request shall not be copied in other reports, and payer has conducted a trade or business at all reasonable hours to any duly au­ shall not be disclosed publicly other than in a foreign country will be considered thorized office or employee of the Food in a judicial proceeding brought pursu­ in determining whether the conduct of and Drug Administration or any other ant to the act or 18 U.S.C. 1001. such trade or business is the active con­ employee acting on behalf of the Secre­ Effective date.—Labeling may be duct of a trade or business, particularly tary of Health, Education, and Welfare. changed to comply with this regulation if the acquisition of the business was for Such certifications are regarded by the beginning December 3, 1973. All labeling the purpose of avoiding income tax. The Food and Drug Administration as re­ ordered for food subject to § 1.12(i) or­ clause relating to the period of time ports to the government and as guar­ dered after March 15,1974, and all label­ during which the taxpayer has con­ antiees or other undertakings Within the ing used for products shipped in inter­ ducted the trade or business has been meaning of section 301 (h) of the act and state commerce after December 31, 1974, retained, while the clause relating to the subject the certifying party to the penal­ shall comply with this regulation. tax-avoidance motive has been deleted. ties for making any false report to the A new sentence has been added at the government under 18 U.S.C. 1001 and (S ecs. 402, 403, 409, 7 0 1 (a ), 702, 703, 704, 52 S ta t. 1046, 1047, 1048—1049 as am e n d e d , 1055, end of § 1.904(b) (1) to provide that any false guarantee or undertaking 1056-1057 a s am e n d e d ; 21 U .S .C . 342, 343, 348, the treatment of a foreign subsidiary as under section 303(a) of the act. The 3 7 1 (a ), 372, 373, 374.) a domestic corporation pursuant to defenses provided under section 303(c) Dated: November 21, 1973. section 1504(d) does not affect the (2) of the act shall be applicable to the location of the subsidiary’s trade or busi­ certifications provided for in this sec­ A . M . S c h m i d t , ness for purposes of section 904(f). tion. Commissioner of Food and Drugs. (ii) Wherever possible, the Food and The rules in § 1.904-4(b) (2) (i) of the Drug Administration shall verify the ac­ [FR Doc.73-25529 Filed 11-30-73; 8 :45 a m ] proposed regulations relating to the curacy of a reasonable number of cer­ types of transactions which will be con­ tifications made pursuant to this section, Title 26— Internal Revenue sidered as being directly related to the constituting a representative sample of active conduct of a trade or business in a CHAPTER I— INTERNAL REVENUE SERV­ foreign country have been made less re­ such certifications, and shall not request ICE, DEPARTMENT OF THE TREASURY all such certifications. strictive. The introductory language of (iii) Where no person authorized to SUBCHAPTER A— INCOME TAX § 1.904-4(b) (2) (i) has been changed to provide such information is reasonably [T.D. 7292] make clear that the list of transactions available at the time of inspection, the therein is not considered to be all in­ PART 1— INCOME TAX; TAXABLE YEARS clusive. In the regulations as pro­ certifying party shall arrange to have BEGINNING AFTER DECEMBER 31, 1953 such person and the relevant materials posed, the language indicated that credit and records ready for verification as soon Special Rules for Determining Foreign Tax extended by the taxpayer to enable the as practicable; provided that, whenever Credit taxpayer’s debtor to purchase the goods the Food and Drug Administration has By a notice of proposed rulemaking or services furnished by the taxpayer would be considered as directly related reason to believe that the supplier or user appearing in the F e d e r a l R e g i s t e r for may utilize this period to alter invento­ March 23, 1971 (36 FR 5423), amend­ to the active conduct of the trade or ries or records, such additional time shall ments to the- Income Tax Regulations business. The wording has been changed not be permitted. Where such additional (26 CFR Part 1) were proposed in order in the final regulations to provide that time is provided, the Food and Drug Ad­ to conform such regulations to changes credit extended to secure an outlet for ministration may require the certifying made by section 10 of the Revenue Act such goods or services will be considered party to certify that relevant inventories of 1962 (76 Stat. 1002) and section 106 as directly related to the active conduct have not been materially disturbed and (c) of the Foreign Investors Tax Act of the trade or business. This language relevant records have not been altered or of 1966 (80 Stat. 1570), relating, to the covers the situation, for example, where concealed dining such period. separate limitation on the foreign tax a taxpayer extends credit on arm’s (iv) The certifying party shall pro­ credit in the case of section 904(f) in­ length terms to meet the general credit vide, to an officer or representative duly terest income. A public hearing was not needs of a customer so as to encourage designated by the Secretary, such quali­ requested, and none was held. After such customer to purchase goods from tative statement of the composition of consideration of all such relevant mat­ the taxpayer. Section 1.904—4(b) (2)(i) the flavor or product covered by the cer­ ter as was presented by interested per­ has also been amended to provide that tification as may be reasonably expected sons regarding the rules proposed, cer­ interest from the short-term invest­ to enable the Secretary’s representatives tain changes were made, and the pro­ ment of excess funds is business related to determine which relevant raw and posed amendments of the regulations, and that interest from sources outside a finished materials and flavor ingredient subject to the changes indicated below, foreign country may be related to busi­ records are reasonably necessary to are adopted by this document. ness carried on in that country. The last sentence of § 1.904-4 (b) (2) verify the certifications. The examination In the regulations as proposed it was conducted by the Secretary’s represent­ unclear whether, in determining under (iii) has been revised to be more in con­ ative shall be limited to inspection and § 1.904-4(a) (2) (i) whether interest in­ formity with § L864-4(c) (2) (iii) (b) review of inventories and ingredient rec­ come is derived from a transaction of the Income Tax Regulations and to ords for those certifications which are to directly related to the active conduct of make clear that the personnel manag­ be verified. a trade or business, a trade or business ing the investment of the asset are not (v) , Review of flavor ingredient recordsconducted by a corporation which is required to be in the same foreign coun­ shall be limited to the qualitative formula affiliated with the taxpayer within the try in which the asset is located.

FEDERAL REGISTER, VOL. 38, NO. 23.1— M O N D AY, DECEMBER 3, 1973 RULES AND REGULATIONS 33291

amended by section 106(c) of the subsection (d ), be deemed paid or accrued in The list of types of operations con­ a taxable year beginning after the date of tained in proposed § 1.904-4 (c H l) Foreign Investors Tax Act of 1966 (80 the enactment of the Revenue Act of 1962, which will qualify a taxpayer as being Stat. 1570), such regulations are with respect to interest income described in engaged in a banking, financing, or sim­ amended as follows: paragraph ( 2 ), and with respect to income ilar business for purposes of section 904 P a r a g r a p h 1. Section 1.904 is amended other than interest income described in par­ (f) has been amended in the adopted by redesignating subsection (f) of sec­ a g ra p h ( 2 ), in the same ratios as the amount regulations to be brought more in con­ tion 904 as subsection (g) and revising of such taxes paid or accrued with respect to interest income described in paragraph ( 2 ), formity with the list contained in such subsection, by adding a new sub­ section (f) to section 904 and revising a n d th e a m o u n t o f su c h tax es p a id o r accru ed § 1.864- 4(c) (5) (i) of the Income Tax with respect to income other than interest Regulations. such subsection, and by revising the income described in paragraph ( 2 ) , respec­ The regulations as adopted have de­ historical note, as follows: tively, bear to the total amount of such taxes leted an example in proposed § 1.904-4 § 1.904 Statutory provisions; limitation paid or accrued to such foreign country or (c)(2) relating to the short-term in­ possession of the United States. on credit. (B) Carryovers to years after Revenue Act vestment of excess funds by a banking S e c . 904. Limitation on credit. * * * of 1962. Where under the provisions of sub­ business and instead have added a simi­ ( f ) Application of section in case of cer­ section (d ), taxes (i) paid or accrued to any lar rule to § 1.904-4(b) (2) (i) for de­ tain interest income— {1 ) In general. T h e foreign country or possession of the United termining interest derived from a trans­ provisions of subsections (a ), (c ), (d) „ and States in any taxable year beginning on or action directly related to the active con­ (e) of this section shall be applied separately before the date of the enactment of the duct of a trade or business in a foreign with respect to— Revenue Act of 1962 [October 16, 1962] are country. (A ) The interest income described in par­ deemed (ii) paid or accrued in one or more a g ra p h ( 2 ) , a n d taxable years beginning after the date of the Subdivision (ii) of § 1.904—4(d) (2) (B) Income other than the interest tar enactment of the Revenue Act of 1962, the as proposed provided rules for the allo­ come described in paragraph ( 2 ). amount of such taxes deemed paid or ac­ cation in certain cases of the foreign in­ (2 ) Interest income to which applicable. crued in any year described in clause (ii) come tax to the section 904(f) interest. For purposes of this subsection, the interest shall, with respect to interest income de­ These allocation rules have been revised income described in this paragraph is in­ scribed in paragraph ( 2 ), be an amount to mate« it clear that the allocation is terest other than, interest— which bears the same ratio to the amount of such taxes deemed paid or accrued as the based upon the net income as determined (A) Derived from any transaction which amount of the taxes paid or accrued to such Is directly related to the active conduct of under the applicable foreign law. foreign country or possession for such year a trade or business in a foreign country or a Adoption of amendments to the regu­ with respect to interest income described in possession of the United States, lations. On March 23, 1971, there was paragraph ( 2 ) bears to the total amount of (B) Derived in the conduct of a banking, published in the F e d e r a l R e g i s t e r (36 the taxes paid or accrued to such foreign PR 5423) a notice of proposed rule mak­ financing, or similar business. country or possession for such year; and the ing with respect to an amendment con­ (C ) Received from a corporation in which amount of such taxes deemed paid or ac­ the taxpayer (or one or more includible crued in any year described in clause (ii) forming the Income Tax Regulations (26 corporations in an affiliated group, as defined with respect to income other than interest CFR Part 1) to section 904(f) of the in section 1504, of which the taxpayer is a income described in paragraph ( 2 ) s h a ll b e Internal Revenue Code of 1954, as added member) owns, direetly or indirectly, at an amount which bears the same ratio to by section 10 of the Revenue Act of 1962 le a st 10 percent of the voting stock, the amount of such taxes deemed paid or (76 Stat. 1002) and amended by section (D ) Received on obligations acquired as a accrued for such year as the amount of 106(c) of the Foreign Investors Tax result of the disposition of a trade or busi­ taxes paid or accrued to such foreign country Act of 1966 (80 Stat. 1570). After con­ ness actively conducted by the taxpayer in a or possession for such year with respect to sideration of all such relevant matter foreign country or possession of the United income other than interest income described States or as a result of . the disposition of in paragraph ( 2 ) hears to the total amount as was presented by interested persons stock or obligations of a corporation in which of the taxes paid or accrued to such foreign regarding the proposed rules, the amend­ the taxpayer owned at least 10 percent of the country or possession for such year. ment of the regulations as proposed is voting stock. hereby adopted, subject to the changes Sec. 904. Limitation on credit.* * * For purposes of subparagraph (C ), stock ( g ) Cross references— (1) For increase of set forth below: owned directly or indirectly, by or for a for­ applicable limitation under subsection (a) P a r a g r a p h . 1. The amendment of eign corporation shall be considered as being for taxes paid with respect to amounts re­ § 1.904, as set forth in paragraph 1 of the proportionately owned by its shareholders. ceived which were included in the gross in­ notice of proposed rule making, is (3 ) Overall lim itation not to apply. T h e come of the taxpayer for a prior taxable changed by adding to section 904 a new limitation provided by subsection (a) ( 2 ) year as a United States shareholder with re­ subsection (g) in lieu of the asterisks pTifdi not apply with respect to the interest spect to a controlled foreign corporation, see section 960(b). after subsection ( f ), as set forth below. income described in paragraph (2). The Sec­ retary or his delegate shall by regulations (2) For special rule relating to the appli­ Par. 2. Section 1.904-4, as set forth in prescribe the manner of application of sub­ cation of the credit provided by section 901 paragraph 5 of the notice of proposed section (e) with respect to cases in which the in the case of affiliated groups which include rulemaking, is changed by revising para­ limitation provided by subsection (a) ( 2 ) a p ­ Western Hemisphere trade corporations for graphs (a) (2) (D and (ii ) , (b) (1), (b) plies with respect to income other than the years in which the limitation provided by (2) (i) and (iii), (c) (1) and (2), and (d) interest income described in paragraph ( 2 ). subsection (a) ( 2 ) applies, see section (2) (ii) to read as set forth below. (4 ) Transitional rules for carrybacks and 1 5 0 3 (b ). carryovers— ( A ) Carrybacks to years prior to [Sec. 904 as amended by sec. 42(a), Techni­ (This Treasury decision is issued under Revenue Act of 1962. Where, under the provi­ cal Amendments Act 1958 (72 Stat. 1639); the authority contained in section 7805 of sions of subsection (d), taxes (i) paid or sec. 1, Act of Sept. 14, i960 (Public Law 86- the Internal Revenue Code of 1954 ( 68A accrued to any foreign country or possession 780, 74 Stat. 1010); secs. 10 and 12(h)(2), Stat. 917; 26 U .S .C . 7 8 0 5 ).) of the United States in any taxable year be­ R ev. A c t 1962 (76 S ta t. 1002, 1031); sec. 234 ginning after the date of the enactment of ( b ) ( 6 ), Rev. Act 1964 (78 Stat. 116); sec. 106 [ s e a l ] D o n a l d C. A l e x a n d e r , t h e R e v e n u e A c t o f 1962 [O c to b e r 16, 1962] (c ) , Foreign Investors Tax Act 1966 (80 Stat. Commissioner of Internal Revenue. are deemed (ii) paid or accrued in one or 1 5 7 0 )] more taxable years beginning on or before Approved: November 21, 1973. P ar. 2. Section #904-1 is amended by the date of enactment of the Revenu^ Act of F r e d e r ic W . H i c k m a n , 1962, the amount of such taxes deemed paid revising paragraphs (a )(1 ) and (b) (1) Assistant Secretary of the Treasury. or accrued shall he determined without re­ to read as follows: gard to the provisions of this subsection. To In order to conform the Income Tax the extent the taxes paid or accrued to a § 1.904—1 Limitation on credit for for­ Regulations (26 CFR Part I) to section foreign country or possession of the United eign taxes. 904(f) of the Internal Revenue Code of States in any taxable year described in clause; (a) Per-country limitatior^-(l) Gen­ 1954, as added by section 10 of the (i) are not, with the application of the pre­ eral. In the case of any taxpayer who Revenue Act of 1962 (76 Stat. 1002) and ceding sentence, deemed paid or accrued in such taxes shall, for purposes of applying any taxable year described in clause (ii), does not elect the overall limitation

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under section 904(a) (2), the amount al­ § 1.904—3 Carryback and carryover ©f United States shall be applied separately lowable as a credit for income or profits unused foreign tax by husband and with respect to the taxpayer’s taxable taxes paid or accrued to a foreign coun­ wife. income from sources within that country try or a possession of the United States * * * * * or possession which is attributable to the is subject to the per-country limitation income other than the section 904(f) prescribed in section 904(a)(1). Such (e) Amounts carried from or throughinterest, and a separate limitation com­ limitation provides that the credit for a joint return year to or through a sep­ puted in the same manner shall be ap­ such taxes paid or accrued (including arate return year. It is necessary to al­ plied separately with respect to his tax­ those deemed to have been paid or ac­ locate to each spouse his share of an able income from sources within that crued other than by reason of section 904 unused foreign tax or excess limitation country or possession which is attrib­ (d )) to each foreign country or posses­ for any taxable year for which the utable to the section 904(f) interest. If sion of the United States shall not ex­ spouses filed a joint retimi if— the taxpayer has elected the overall lim­ ceed that proportion of the tax against (1) The husband and wife file sep­ itation prescribed in section 904(a) (2), which credit is taken which the tax­ arate returns for the current taxable such limitation shall be applied with rei payer’s taxable income from sources year and an unused foreign tax is car­ spect to all of the taxpayer’s taxable within such country or possession (but ried thereto from a taxable year for income from sources without the United not in excess of the taxpayer’s entire which they filed a joint return; States other than his taxable income taxable income) bears to his entire tax­ (2) The husband and wife file sepa­ from such sources which is attributable able income for the same taxable year. rate returns for the current taxable year to the section 904(f) interest, and, in For special rules regarding the applica­ and an unused foreign tax is carried to addition, a separate limitation computed tion of the per-country limitation when such taxable year from a year for which in the same manner as the per-country the taxpayer has derived section 904(f)' they filed separate returns but is first limitation prescribed in section 904(a) interest, see § 1.904-4. carried through a year for which they (1) shall be applied separately with re­ ***** filed a joint return; or spect to the taxpayer’s taxable income (b) Overall limitation— (1) General. (3) The husband and wife file a joint from sources within each foreign coun­ In the case of any taxpayer who elects return for the current taxable year and try or possession of the United States the overall limitation provided by sec­ an unused foreign tax is carried from which is attributable to the section tion 904(a)(2), the total credit for a taxable year for which they filed joint 904(f) interest from sources within that taxes paid or accrued (including those returns but is first carried through a country or possession. For such pur­ deemed to have been paid or accrued year for which they filed separate re­ poses, the separate limitation with re­ other than by reason of section 904(d)) turns. spect to section 904(f) interest from shall not exceed that proportion of the sources within a foreign country or pos­ In such cases, the separate carryback or session of the United States shall be ap­ tax against which such credit is taken carryover of each spouse to the current which the taxpayer’s taxable income plied only to the taxes paid or accrued taxable year shall be computed in the to such country or possession with re­ from sources without the United States manner described in § 1.904-2 but with (but not in excess of the taxpayer’s spect to such interest, and the separate the modifications set forth in paragraph limitation with respect to income other entire taxable income) bears to his en­ (f ) of this section. Where applicable, ap­ tire taxable income for the same tax­ than section 904(f) interest, whether the propriate adjustments shall be made to per-country , or overall limitation, shall able year. Special rules which prohibit take into account the fact that, for any the applicability of the overall limita­ be applied only with respect to the for­ taxable year involved in the computation eign income taxes paid or accrued (in­ tion in the case of section 904(f) interest of the carryback or the carryover, either are provided in section 904(f) and cluding those deemed to have been paid spouse has interest income described in or accrued other than by reason of sec­ § 1.904-4. section 904(f) (2) with respect to which * * * * * tion 904(d) with respect to the income, the provisions of section 904(f) and other than the section 904(f) interest, P ar. 3. Section 1.904-2 is amended by § 1.904-4 apply. which is taken into account for purposes revising paragraph (a) to read as fol­ * * * * * of such separate limitation. In no case lows: P ar. 5. The following new section is may the overall limitation prescribed in § 1.904—2 Carryback and carryover o f inserted immediately after § 1.904-3: section 904(a)(2) be applied with re-* unused foreign tax. spect to section 904(f) interest or with o 1.904—4 Separate limitation for sec­ respect to foreign income taxes paid or (a) Credit for foreign tax carryback tion 904 interest. or carryover. A taxpayer who Chooses to accrued with respect to such interest. (a) Separate limitation— (1) In gen­ (2) Section 904(f) interest defined. claim a credit under section 901 for a eral. For taxable years beginning after For purposes of this section, section 904 taxable year is allowed a credit under October 16, 1962, but only with respect that section not only for taxes other­ ( f ) interest shall be all interest income to interest resulting from transactions of the taxpayer for the taxable year wise allowable as a credit but also for consummated after April 2, 1962, the other than interest— taxes deemed paid or accrued in that provisions of subsections (a), (c), (d), (i) Derived from any transaction year as a result of a carryback or carry­ and (e) of section 904 shall be applied over of an unused foreign tax under which, in accordance with paragraph (b) separately with respect to the taxpayer’s of this section, is directly related to the section 904(d). However, the taxes so income consisting of— deemed paid or accrued shall not be active conduct by the taxpayer of a trade allowed as a deduction under section (i) Section 904(f) interest (as defined or business in a foreign country or a pos­ in subparagraph (2) of this paragraph), session of the United States, 164(a). The following paragraphs of and this section provide rules for the com­ (ii) Derived in the conduct by the tax­ putation of carryovers and carrybacks (ii) Income other than section 904(f) payer of a banking, financing, or similar under section 904(d). For special rules interest. business within the meaning of para­ graph (c) of this section, regarding the application of section The provisions of section 904(f) and this 904(d) and this section in the cases of section do not alter the rules provided (iii) Received, before January 1, 1966, from a corporation, domestic or foreign, taxes paid or accrued with respect to sec­ by section 904(b) and paragraph (d) of § 1.904-1 for the election of the overall in which the taxpayer owns at least 10 tion 904(f) interest see section 904(f) percent of the voting stock, and § 1.904-4. limitation upon the amount of the for­ eign tax credit. I f the taxpayer has not (iv) Received, after December 31, ***** elected the overall limitation, the per- 1965, in taxable years ending after such P ar. 4. Section 1.904-3 is amended by country limitation prescribed in section date, from a corporation, domestic or foreign, in which the taxpayer (or one or revising paragraph (e) to read as fol­ 904(a)(1) which is applicable to any lows: more includible corporations in an affil­ foreign country or possession of the iated group, as defined in section 1504

FEDERAL REGISTER, VOL. 38, NO. 231— MONDAY, DECEMBER 3, 1973 RULES AND REGULATIONS 33293

of this section, the transaction is con­ limitation for 1969 and also has for that and the regulations thereunder, of which year $80,000 of taxable income consisting of the taxpayer is a member) owns, directly summated before April 2, 1962. In fur­ section 904(f) interest from sources within or indirectly, at least 10 percent of the ther illustration, if M were to make de­ country Y on which M pays to country Y voting stock, or livery an March J, 1962, under terms $12,000 income tax. The limitation under sec­ (v) Received on obligations acquiredwhich are not finally agreed upon until tion 904(a) (2) on M ’s credit for foreign taxes as a result of the disposition of a trade or June 1, 1962, the transaction shall be is determined as follows, assuming U.S. tax considered consummated before April 2, (before credit) of $1,040,000 and total taxa­ business actively conducted by the tax­ ble incom e of $2,080,000: payer in a foreign country or possession 1962. of the United States or as a result of the (iii) Options. Ah option shall, for pur­Country X : Limitation with respect to section 904(f) interest from sources within country X disposition of stock or obligations of a poses of this section, be considered con­ corporation, domestic or foreign, In summated on the date the option is exer­ ...... which the taxpayer owned at least 10 cised. Thus, for example, if domestic cor­ Country Y : Limitation with respect to section percent of the voting stock. poration N purchases on March 21,1962, 904(f) interest from sources within country Y a 30-day option to purchase certain secu­ For purposes of subdivisions (iii) and rities issued by a resident of foreign (iv) of this subparagraph, the 10-percent country X and then purchases such se­ Overall limitation with respect to other ineome ownership requirement must be satisfied curities on April 5, 1962, the transaction from countries X and Y only at the time the interest is received. shall be considered consummated on |$1 04O,000X-— — —1 ...... -----...... - - 125,000 $2,080,000]' For purposes of subdivision (iv) of this April 5, 1962. subparagraph, stock owned, directly or (4) Characterization of income as in­ Example (3) . Assume the same facts as in indirectly, by or for a foreign corporation terest— (i) In general. For purposes of example (2) except that M does not elect shall be considered as being proportion­ the overall limitation and that during 1969 ately owned by its shareholders. For pur­ section 904(f) and this section, the de­ termination as to whether an item of M also received a dividend of $30,000 from its poses of subdivision (v) of this subpara­ wholly owned subsidiary IV, a corporation income is to be treated as an item of graph, an obligation shall include any organized under the laws of country Y which bond, note, debenture, certificate, or interest shall be made based upon the is not a less developed country corporation other evidence of indebtedness and the applicable provisions of U.S. law and any and which does not meet the tests of section administrative or judicial interpretations 245. An income tax of $1,500 imposed by 10-percent ownership requirement must c o u n try Y is w ith h e ld b y N fr o m th e d iv id e n d be satisfied only at the time of the dispo­ made under such law. A provision of the laws of a foreign country.or possession of paid to M; in addition, on receipt of the sition of the stock or obligations of the the United States regarding the charac­ dividend, M is deemed under section 902(a) corporation. terization of an item of income as inter­ ( 1) to have paid $ 10,000 foreign income tax (3) Date transaction is consum­ to country Y. Assuming a U.S. tax (before est and any judicial or administrative credit) of $1,060,000 and total taxable ineome mated— (i) In general. The determina­ interpretations made under such laws tion for purposes of subparagraph (1) of o f $2,120,000, M ’s total credit for foreign in­ shall not be controlling for purposes of com e taxes fo r 1969 is $163,500, determ in ed , as this paragraph of whether a transaction this section.. fo llo w s : has been consummated after April 2, (ii) Unstated interest. Any amount 1962, shall be made based upon the facts Country X : and circumstances in a particular case. which is treated as interest under section Taxes paid to country X with respect to 483 and the regulations thereunder shall section 904(f) interest from sources within A transaction shall be considered con­ country X ______$15,000 be considered interest for purposes of Limitation with respect to such section 904(f)- summated on or before April 2, 1962, if interest it is made pursuant to an agreement all this section. the significant terms of which have been (5) Illustrations. The application of ili.oeo.CMXgg^l— ...... 25.«« agreed upon on or before that date by all this paragraph may be illustrated by the Credit allowed' under section 901(b)(1) with the parties to the agreement. The mere following examples: respect to section 904(f) interest from sources within country X ______”----- 15,000 signature after April 2, 1962, by one Example ( 1). Domestic corporation M, a Taxes paid to country X with respect to other or more parties to an agreement, all calendar year taxpayer to which the per- income from sources within country X _____ 60,000 the significant terms of which have been country limitation applies, has for 1969 Limitation with respect to such other income $50,000 of taxable income consisting of sec­ agreed upon on or before that date by all {si.WW.ODDXi^g}- 50,000 the parties to the agreement, shall not in tion 904(f) interest from sources within for­ eign country X, $100,000 of other taxable in­ and of itself prevent such transaction Credit allowed under section 901(b)(1) with come from sources within that country, and respect to other income from sources within from being considered consummated on $150,000 of taxable income (none of which is country X ______;------50,000 or before April 2, 1962. Generally, a interest income) from sources within foreign Country Y : Taxes paid to country Y with respect to transaction which results from an agree­ country Y. M has no other income (or losses) section 904© interest from sources within ment for which the negotiations com­ from sources without the United States in country Y ______12,000 1969 and has total taxable income from all Limitation with respect to such section 904(f) menced on or before April 2, 1962, but interest the significant terms of which were * sources (including countries X and Y ) of $2 million. M pays income tax for 1969 to coun­ $80,000 ] agreed upon after such date, shall be j$l,060,000X 40,000 try X of $15,000 with respect to section 904 $2 ,1 2 0 ,0 0 0 ) considered consummated after April 2, (f) interest and $60,000 with respect to other Credit allowed under section 901(b)(1) with 1962. income: and $75,000 income tax to country respect to section 904(f) interest from sources (ii) Performance under contract. Y. M’s U S . tax (before credit) is assumed to within country Y ______12,000 be $1 million. M ’s foreign tax credit limita­ Taxable income (other than section 904(f) Where there is performance on or before interest) from sources within country Y : April 2, 1962, under any contract, or tion under section 904(a) (1) is determined Dividend------.------$30,000 as follows: Gross-up under section 78______10,000 after that date under a contract all the Other income______150,000 190,000 significant terms of which have been Country X : Taxes paid (and deemed paid under section Limitation with respect to section 904(f) inter­ 902(a) (1)) with respect to other income from agreed upon op or before that date, the est from sources within country X sources within country Y ($75,000+$l,500 transaction shall be considered consum­ + $ 10,000) ______86,500 mated on or before April 2, 1962. Thus, ------*ao" Limitation with respect to such other income for example, domestic corporation M Limitation with respect to other income from enters into a contract with B, a resident sources within country X — - - - - - — 95- ° ° ° of foreign country Z, on March 1, 1962, j$l 000 000X $1°e’000- } ...... -...... 5°.000 Credit allowed under section 901 with respect to deliver in the United States certain 1$, , A$2,000,000]...... to other income from sources within coun­ Country Y : try Y ______— _— — 86,500 merchandise to B. M is not engaged in Limitation with respect to income from sources Summary of allowable credit: trade or business in country Z but agrees within country Y Country X tax with respect to: Section 904(f) interest------— $15,000 to finance the purchase of the merchan­ ¡».OOO.OOOxMjJ------73.000 Other income______— 50,000 Country Y tax with respect to: dise by B. Delivery is made on Septem­ Section 904(f) interest______12,000 ber 1,1962, and the final payment is due Example (2). Assume the same facts as in \ Other Income______86,500 18 months after delivery. For purposes example (1) except that M elects the overall Total allowable credit______163,500

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 33294 RULES AND REGULATIONS

(b) Transactions directly related toThus, for example, if credit is extended business and not its anticipated future the active conduct of a trade or busi­ or money is advanced by a taxpayer in needs. An asset shall be considered as ness— (1) Definition of active conduct of the ordinary course of his trade or busi­ needed in the trade or business actively a trade or business. For purposes of ap­ ness in order to secure an outlet for goods conducted in a foreign country or posses­ plying section 904(f) and this section, a or services furnished by the taxpayer, sion of the United States if, for example, determination of whether a taxpayer is then such extension or advance shall, for the asset is held to meet the operating engaged in the active conduct of a trade purposes of this section,-be considered a expenses of that trade or business. Con­ or business in a foreign country or pos­ transaction which is directly related to versely, an asset shall be considered as session of the United States shall be the active conduct of that trade or busi­ not needed in the trade or business con­ made based upon the facts and circum­ ness. In further illustration, if, pursuant ducted in a foreign country or possession stances in the particular case. However, to the Jaws of a foreign country or pos­ of the United States if, for example, the in no case shall the mere purchasing, session of the United States or a judicial asset is held for the purpose of providing holding, or disposing of investment prop­ or administrative interpretation made for (a) future diversification into a new erties, such as stocks or securities, by a under such laws, a taxpayer who is en­ trade or business, (5) expansion of the taxpayer for his own account be consid­ gaged in the active conduct of a trade or taxpayer’s trade or business activities ered, for such purposes, as the active business in that country or possession is conducted outside such country or pos­ conduct of a trade or business. The fact required, as a condition to the conduct of session, (c) future plant replacement, or that a taxpayer is considered or is not that trade or business, to acquire bonds (d) future business contingencies. Gen­ considered, for purposes of a section of issued by such country or possession, such erally, an asset will be treated as held in the Code other than section 904(f), to be acquisition shall, for purposes of this sec­ a direct relationship to the trade or busi­ engaged in the active conduct of a trade tion, be considered a'transaction which ness conducted in a foreign country or or business in a foreign country or pos­ is directly related to the active conduct possession if the asset was acquired session of the United States may be taken of that trade or business. Also, if cash in with funds generated by the trade into account, but shall not necessarily be excess of immediate business require­ or business conducted in such country or controlling, for purposes of this sub- ments is retained as an ordinary and possession, the income from the asset is paragraph. Thus, for example, if a cor­ necessary incident to the active conduct retained or reinvested in the trade or poration is considered, for purposes of of a trade or business in a foreign coun­ business conducted in such country or section 355 and the regulations there­ try or possession of the United States to possession, and the asset is managed and under, to be engaged in the active con­ provide for peak requirements resulting controlled by personnel who are present duct of a trade or business in a foreign from seasonal fluctuations or similar oc­ in such country or possession and actively country or possession of the United currences, interest from short-term se­ involved in the conduct of the trade or States, this factor may be taken into ac­ curities in which such cash is invested business conducted in such country or count for purposes of determining if such shall be considered to be derived from a possession. corporation is so engaged for purposes transaction which is directly related to (c) Banking, financing, or similar of this subparagraph. The period of time the active conduct of that trade or busi­ business— (1) In General. A taxpayer for which a taxpayer has conducted a ness. For purposes of this paragraph, a will be considered to be engaged in the trade or business in a foreign country or transaction may be directly related to conduct of a banking, financing, or simi­ possession of the United States may be a trade or business which is actively lar business for purposes of paragraph taken into account in determining conducted in more than one foreign (a) (2) (ii) of this section if he is engaged whether the conduct of such trade or country or possession of the United in business, whether in the United business is the active conduct of a trade States, and any interest derived from States or in a foreign country or pos­ or business for purposes of this subpara­ that transaction may be excluded under session of the United States, and the graph. The fact that a foreign corpora­ section 904(f) (2) (A ) even though it is activities of such business consist of any tion is treated under section 1504(d) as derived from sources outside such coun­ one or more of the following activities a domestic corporation will not preclude tries or possessions. carried on in transactions with persons the interest income of such corporation (ii) Assets used in trade or business. situated within or without the United from qualifying under paragraph (a) (2) For purposes of subdivision (i) (a) (2) of States: (i) of this section. this subparagraph an asset shall be (i) Receiving deposits of money from (2) Direct relationship of transac­treated as used in, or held for used in, the public, tion— (i) In general. The transactions the active conduct of a trade or business (ii) Marking personal, mortgage, in­ which shall be considered directly related in a foreign country or possession of the dustrial, or other loans to the public. to a trade or business which, in accord­ United States if the asset is— (iii) Purchasing, selling, discounting, ance with subparagraph (1) of this para­ (a) Held for the principal purposes or negotiating, notes, drafts, checks, graph, constitutes the active conduct of a of promoting the present cpnduct of that bills of exchange, acceptances, or other trade or business in a foreign country or trade or business, evidences of indebtedness, possession of the United States include, (b) Acquired and held in the ordinary (iv) Issuing letters of credit and ne­ but are not limited to— course of that trade or business, as, for gotiating drafts drawn thereunder, (a) The sale, exchange, or other dis­ example, in the case of an account or (v) Providing trust services for the position of ( 1) property which is pur­ note receivable arising from that trade public, chased, manufactured, produced, con­ or business, or • - , (vi) Financing foreign exchange structed, grown, or extracted in the or­ (c) Otherwise held in a direct rela­ transactions for the public, or dinary course of such trade or business tionship to that trade or business, as (vii) Carrying on an insurance com­ or (2) asset which is used in, or held determined under subdivision (iii) of this pany business. for use in, the conduct of such trade or subparagraph. Although the fact that the taxpayer is business, (iii) Relationship between holding of subjected to the banking and credit laws (b) The performance in the ordinary asset and trade or business. In determin­ of a foreign country or possession of the course of such trade or business of tech­ ing for purposes of subdivision (ii) (c) of United States shall be taken into account nical, managerial, engineering, architec­ this subparagraph whether an asset is in determining whether he is engaged in tural, scientific, skilled, industrial, com­ held in a direct relationship to a trade the conduct of a banking, financing, or mercial, or similar services, or business actively conducted in a for­ similar business in that country or pos­ (c) The performance of any activity eign country or possession of the United session, the character of the business ac­ which is an ordinary and necessary in­ States, principal consideration shaill be tually carried on during the taxable year cident to the conduct of such trade or given to whether the asset is needed in therein shall determine whether the tax­ business, or that trade or business. An asset shall be payer is conducting a banking, financing, (d) The satisfaction of any require­ considered needed in a trade or business, or similar business therein. This para­ ment or condition for carrying on such for this purpose, only if the asset is held graph shall be applied without reference trade or business. to meet the present needs of that trade or to paragraph (b) of this section.

FEDERAL REGISTER, VO L. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 RULES AND REGULATIONS 33295

which the per-country limitation pro­ (2) Relation of asset to the business. of the United States, which shall be deemed paid or accrued in any other tax­ vided in section 904(a) (1) applies, even If securities are acquired as an ordinary though the taxable year from which such and necessary incident to the conduct of able year to which such unused foreign tax may be carried under paragraph (b) tax is carried is a taxable year for which a banking, financing, or similar business, the overall limitation provided in as defined in subparagraph (1) of this of § 1.904-2 shall be equal to the smaller of—• section 940(a) (2) applies, and paragraph, interest income from such (c) An unused foreign tax for any securities shall be considered to be de­ (a) The portion of such unused for­ eign tax which, under paragraph (b) of taxable year with respect to income rived in the conduct of a banking, financ­ other than section 904(f) interest may be ing, or similar business for purposes of § 1.904-2, is carried to such other taxable year, or , deemed paid or accrued in another tax­ this section but only so long as the re­ able year for which the separate limita­ tention of such securities remains an (b) Any excess limitation for such other taxable year with respect to such tion with respect to section 904(f) in­ ordinary and necessary incident to the terest applies, if the same limitation conduct of such business. Thus, the ac­ unused foreign tax (as determined under subdivision (iii) of this subparagraph) . applies for both of such taxable years quisition of a security acquired as a re­ with respect to income other than sult of, or in order to prevent, a loss in The amount of an unused foreign tax for any taxable year with respect to income section 904(f) interest. a banking, financing, or similar business (v) In applying this subparagraph— upon a loan contracted in the ordinary other than section 904(f) interest which is deemed paid or accrued in such other (a) No portion of an unused foreign course of such business shall be consul tax with respect to section 904(f) interest ered ordinary and necessary to the con­ taxable year shall be determined under subparagraph (1) or (2), whichever ap­ for any taxable year may reduce the duct of such business, but interest on excess limitation for any other taxable such security shall be considered derived plies, of § 1.904-2 (c) without taking into account any amounts used in ap­ year with respect to income other than in the conduct of a banking, financing, section 904(f) interest, or similar business only so long as the plying the preceding provisions of this subdivision. (b) No portion of an unused foreign holding of such security remains an ordi­ tax for any taxable year with respect to nary and necessary incident to the con­ (iii) The excess limitation for any tax­ able year (hereinafter called the “excess income other than section 904(f) interest duct of such business. The term “ secu­ may reduce the excess limitation for any rities”, as used in this subparagraph, limitation year” ) applicable to an unused foreign tax with respect to section other taxable year with respect to sec­ means any note, bond, debenture, or tion 904(f) interest, and other evidence of indebtedness, or any 904(f) interest, in the case of a partic­ (c) If an unused foreign tax with evidence of an interest in or right to sub­ ular foreign country or possession of the respect to section 904(f) interest for any scribe to or purchase any of the fore­ United States, for another taxable year (hereinafter called the “year of origin” ) taxable year is not deemed paid or ac­ going. " . (3) Income from other business activ­ shall be the amount, if any, by which crued in another taxable year to which the limitation for the excess limitation such unused foreign tax may be carried ity. If, in addition to conducting a bank­ under paragraph (b) of § 1.904-2, such ing, finfl.np.ing, or similar business, a year in the case of that foreign country other taxable year is to be counted as one taxpayer carries on other business activi­ or possession with respect to section of the years to which such unused for­ ties (for example, the business of selling 904(f) interest exceeds the sum of— or manufacturing, goods or merchandise, (a) The income, war profits, and ex­ eign tax may be carried. from which it realizes income, gain, or cess profits taxes actually paid or ac­ The application of this subdivision may crued to such foreign country or pos­ loss) only the interest derived in the be illustrated by the following example: conduct of the banking, financing, or session in the excess limitation year with respect to section 904(f) interest, and Example. Domestic corporation D, a calen­ similar business shall be excluded under (b) The portion of the unused for­ dar year taxpayer, does not elect the over- section 904(f) (2) (B> and paragraph (a) aU lim ita t io n fo r 1963, 1964, a n d 1965, in each eign tax with respect to section 904(f) (2) (ii) of this section (see, however, par­ of which years it chooses the benefits of interest, in the case of such foreign agraph (a) (2) (i) of this section). section 901. For 1965 D has an unused foreign country or possession for any taxable tax of $100 with respect to section 904(f) (d) General rules for carryback and year earlier than the year of origin, interest. For 1963 D has an excess limitation carryover of unused foreign tax applica­ which is absorbed as taxes deemed paid o f $200, but only with respect to income ble to section 904(f) interest— (1) Modi­ or accrued in the excess limitation year other than section 904(f) interest. Since the fications in use of § 1.904-2. For purposes under subdivision (ii) of this sub- unused foreign tax for 1965 consists only of of applying the provisions of § 1.904-2 in paragraph. income taxes imposed on section 904(f) conjunction with this section, and except -interest and an excess limitation does not as otherwise provided in paragraph (e) The excess limitation for such excess exist with respect to such taxes for 1963, the u n u s e d fo r e ig n t a x fo r 1965 s h a ll n o t be of this section— limitation year with respect to income other than section 904(f) interest shall deemed paid or accrued under section 904(d) (i) The term “unused foreign tax”, in 1963. when used with respect to section 904(f) be determined under subparagraph (1) i interest for any taxable year,, means, (ii) or (2) (ii), whichever applies, of (2) Amount of taxes paid with respect with respect to a particular foreign coun­ § 1.904-2 (c) without taking into account to section 904(f) interest— (i) In general. try or possession of the United States, any amounts used in applying the pre­ Except as provided in subdivision (ii) of the excess of (a) the income, war profits, ceding provisions of this subdivision. this subparagraph, the amount of taxes and excess profits taxes paid or accrued (iv) Notwithstanding section 904(e) paid or accrued with respect to section in such year to such foreign country or (2) and subparagraphs (1) (iii) and (2) 904(f) interest for purposes of this sec­ : possession with respect to such interest, (iii) of. § 1.904-2 (c ), but subject to the tion shall include only those foreign in­ as determined under subparagraph (2) limitations of this subparagraph— come taxes which are actually paid or of this paragraph, over (b) the separate (a) An unused foreign tax with re­ accrued by a taxpayer to a foreign coun­ i limitation for such year with respect to spect to section 904(f) interest for any try or possession of the United States l such interest. Any unused foreign tax for taxable year may be deemed paid or with respect to such interest. Thus, for such year with respect to income other accrued in another taxable year for such purposes, the amount of taxes a i than section 904(f) interest shall be de- which the overall limitation provided in taxpayer is deemed to have paid for a | termined under subdivision (i) or (ii ) , section 904(a) (2) applies, even though taxable year under, a section of the Code whichever applies, of § 1.904-2 (b) (2) the taxable year from which such tax is other than section 994(d) shall not be I without taking into account any carried is a taxable year for which the considered taxes paid with respect to amounts used in applying the preceding per-country limitation provided in section 904(f) interest. ; provisions of this subdivision. section 904(a) (1) applies, (ii) Taxes not specifically allocable to included interest. I f a taxpayer has paid (ii) The amount of an unused foreign (b) An unused foreign tax with re­ or accrued for a taxable year an amount | tax for any taxable year with respect to spect to section 904(f) interest for any of foreign income taxes with respect to section 904(f) interest, in the case of a taxable year may be deemed paid or income which consists only in part of particular foreign country or possession accrued in another taxable year for

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 33296 RULES AND REGULATIONS

section 904(f) interest, but such taxes Taxable years 1968 1966 1967 1968 1969 1970 cannot be specifically allocated to the

section 904(f) interest, the amount of Separate limitation with respect to sec. 904(f) interest: such taxes which may be taken into ac­ Country X ______...... - ______$50 $130 $70 $90 $50 Country Y____,______¿vS______v______11... 240 190 180 120 150 count for purposes of subdivision (i) of Taxes actually paid with respect to sec. 904(f) interest: Country X . ______—...... 50 100 70 90 - 80 this subparagraph is that amount which Country Y ...... 1 ____ ¿..1...... ______fc 300 190 180 209 110 Overall limitation with respect to other income______,____ 150 250 200 300 600 bears the same ratio to the total of such Taxes actually paid with respect to other income..—...... 150 200 600 250 300 Unused foreign tax with respect to— foreign income taxes as the net section See. 904(f) interest from: 904(f) interest bears to the -total net Country X ______...______—...... - ...... - ...... 30 Country Y ...... 1 ...... '------60 —...... 80 ...... amount of such income. For purposes of Other income..___ .... ______400 ...... ' Excess limitation, with respect to— such apportionment of net section 904 Sec. 904(f) interest from: (f) interest and the total net income are Country X .. ___ —¿1— ...... ------30 Country Y ______40 150 to be determined by deducting any cred­ Other income______6 0 ...... — 60 200 Unused foreign tax absorbed as taxes deemed paid under sec. 904 its, expenses, losses, and other deduc­ (d) with respect to— Sec. 904(f) interest from: tions which are properly allocable to the Country X ...... —. ------20: gross amount of such income under the Country Y and carried: From 1965______:_____ 40 20; law of the foreign country or possession From 1968______...... ------—------Other income. . . _____ .1. ______50 ...... 50 200 of the United States to which the for­ eign income taxes have been paid or ac­ (e) Transitional rules for carrybacksextent in excess of the applicable limita­ crued. If the taxpayer determines that and carryovers with respect to pre-1962 tion for that year).' because of the facts and circumstances years— (1) Carrybacks to years before (iii) The apportionment provided by] in a particular case the application of the Revenue Act of 1962. (1) Where, under subdivision (ii) of this subparagraph] the provisions of section 904(d), taxes shall not apply if, after applying section two proceeding sentences does not result paid or accrued to any foreign country 904 (d) and (e) and paragraph (d) of in a proper allocation of the foreign in­ or possession of the United States in any § 1.904-2 in respect of any unused for-] come taxes to the section 904(f) interest, taxable year beginning after October 16, eign tax for a taxable year beginning he may make such other reasonable al­ 1962, are deemed paid or accrued in one after October 16, 1962, no taxes are in] location as will, in the opinion of the or more taxable years beginning on or fact deemed paid or accrued in any tax-] before that date, the amount of the taxes able year beginning on or before thaw district director, more clearly reflect the so deemed paid or accrued shall be de­ date to which such unused foreign tan proper allocation of the foreign income termined without regard to the provi­ may be carried back. Thus, no taxes are taxes to the section 904(f) interest. For sions of section 904(f) and this section. deemed paid or accrued in any taxable! (ii) To the extent the taxes paid oryear beginning on or before October 16,1 purposes of this section, the term “for­ accrued to a foreign country or posses­ 1962, and the apportionment provided by] eign income taxes” means income, war sion of the United States in any taxable subdivision (ii) of this subparagraph] year beginning after October 16, 1962 shall not apply if— profits, and excess profits taxes, and tax­ (hereinafter referred to as the “year of (a) There is no excess limitation for] es included in the term “income, war origin” ) are not, after applying subdivi­ any such taxable year beginning on or] profits, and excess profits taxes” by sion (i) of this subparagraph, deemed before that date; paid or accrued in any taxable year be­ (b) The per-country limitation pro-] reason of section 903, imposed by a for­ ginning on or before that date, such vided by section 904(a)(1) applies to eign country or a possession of the United taxes shall, for purposes of applying sec­ each such year, and the unused foreign] tion 904(d) and this section, be deemed tax is carried back from a taxable year] States. paid or accrued in another taxable year beginning after October 16, 1962, for] (3) Illustration. The application ofbeginning after that date— which the overall limitation provided by] this paragraph may be illustrated by the (a) With respect to section 904(f) section 904(a) (2) applies; or interest, in the same ratio as the amount (c) The overall limitation provided by] following example: of taxes paid or accrued to such country section 904(a) (2) applies to each such] year, and the unused foreign tax is car-] Example. N, a calendar year taxpayer using or possession with respect to such inter­ ried back from a taxable year beginning] the cash receipts and disbursements method est for the year of^ origin (to the extent in excess of the applicable limitation for after Qctober 16,1962, for which the per-] of accounting, pays foreign income taxes for that year) bears to the total amount of country limitation provided by section the first time in 1965. For each of the taxable taxes paid or accrued to such country or 904(a) (1) applies. years set forth below N chooses the benefits possession for the year of origin (to the (iv) The application of this subpara-j of section 901 and elects the overall limita­ extent in excess of the applicable limi­ graph may be illustrated by the follow­ tion. N has section 904(f) interest only from tation for that year), and ing examples: foreign countries X and T for the years in­ (b) With respect to other income, in Example (1). M , a c a le n d a r year taxpayer] volved. Based upon the taxes actually paid the same ratio as the amount of taxes using the cash receipts and disbursements] to foreign countries X and Y for each of the paid or accrued to such country or pos­ method of accounting, chooses to claim a taxable years with respect to section 904(f) session with respect to such other income cred it u n d e r sectio n 901 fo r 1962 through interest, and the foreign income taxes paid 1965, fo re ig n incom e tax es b e in g p a id for the for the year of origin (to the extent in first tim e in 1962. B a se d u p o n the taxes with respect to the other income from excess of the applicable limitation for actually paid to foreign country X, and the sources without the United States, the un­ that year) bears to the total amount of use of the pre-country limitation in each wj used foreign tax deemed paid under section taxes paid or accrued to such country or su c h years, th e u n u s e d fo re ig n tax deemed 904(d) is as follows: possession for the year of origin (to the paid under section 904(d) is as follows:

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 Taxable years 1962 1963 1964 1965 Taxable years 1962 1963 1964 1965 1966 1967 1968

Per-country limitation______$100------Per-country limitation______$350 Taxes actually paid to country X . . . ------...... -- 90 — ...... -- Taxes actually paid to country X ------. . . 260 Limitation with respect to— Per-country limitation with respect to— Sec. 904(f) interest...------$100 $200 $160 $300 $225 $260.00 Sec. 904(f) interest...... - ...... $60 $60 60 60 Other income...... — ------200 400 195 400 . 460 430.00 Other income...... —...... - ...... Taxes actually paid to country X with respect to— Taxes actually paid to country X with respect to— 60 Sec. 904(f) interest...... — ...... — ------300 200 100 160 200 200.00 See. 904(f) interest...... - ...... 5“ 20 90 10 Other income...... 600 260 275 400 400 300.00 Unused foreign tax with respect to— Unused foreign tax with respect to— ...... ------...... *40 Sec. 904(f) interest...... '------200 . Other income...... —— ...... —...... Other income------;———------.------400 - 80 . Excess limitation with respect to— Excess limitation with respect to— Sec. 904(0 interest ...... — — ;------80 30 60 Sec. 904(f) interest------60 160 26 80.00 Other income...------—------i n ' " ...... Other income------160...... - ___ 60 130.00 Total income...... — ...... 1 0 ...... Total income...... — 100 Unused foreign tax absorbed as taxes deemed paid under sec. 904(d) with Unused foreign tax for 1963 absorbed as taxes deemed paid respect to— under sec. 904(d) with respect to— Sec. 904(f) interest...... - ...... - ...... Sec. 904(f) interest: Other income ($30X$40/$40)------...... -■ 30 ' ($350X$200/$600; or limitation, if less)------— Total income______- ...... - 10 —...... ($300X$200/$600; or limitation, if less)...... —— ($200X$200/$600; or limitation, if less)...... 26 Example (2). The facts are the same as in example (1) except for the changes in the ($125X$209/$600; or limitation, if less)------41.67 amounts of the limitation and of the taxes actually paid. The unused foreign tax deemed Other income: ($500X$400/$600; or limitation, if less)______160 paid under section 904(d) is as follows: v ($200X$400/$600; or limitation, if less)------6 0 ______- ($125X$400/$600; or limitation, if less)______83.33 Total income------100 Taxable years 1962 1963 1964 1966 Unused foreign tax for 1965 absorbed as taxes deemed paid under sec. 904(d) with respect to— REGULATIONS AND RULES Sec. 904(f) interest...... 46.67 Per-country limitation...... ----- ...... - ...... Other income ($130—$83.33)------...... — Taxes actually paid to country X ...... - ...... 90 Limitation with respect to— Sec. 904(f) interest...... — ...... - ...... — $60 $50 $60.00 Example (4). D„ a calendar year taxpayer using the cash receipts and disbursements Other income...... - ...... - ...... -,------80 50 60.00 method of accounting, pays foreign income taxes for the first time in 1962. For each of the Taxes actually paid to country X with respect to— • taxable years set forth below D chooses the benefits of section 901 and elects the overall Sec. 904(f) interest...... - ...... — ...... —...... 20 60 25.00 80 90 10.00 limitation. D has section 904(f) interest only from foreign country X for the years indicated. Other income...... a ...... — Unused foreign tax with respect to— Based upon the taxes actually paid to foreign countries X and Y for each of the taxable 10 .. Sec. 904(f) interest...... - ...... - ...... - ...... - ...... years with respect to income other than section 904(f)' interest, and the taxes paid to Other income...... , ...... - ...... ____ 4 0 ______Excess limitation with respect to— country X with respect to section 904(f) interest, the unused foreign tax deemed paid under Sec. 904(f) interest...... - ...... - ...... 30 ...... 35.00 section 9 0 4 (d ) is a s fo llo w s : Other income...... -■...... - ...... --- ...... 40.00 Total income...... - ...... ------10 Unused foreign tax absorbed as taxes deemed paid under sec. 904(d) with Taxable years 1962 1963 1964 1965 1966 1967 1968 respect to— Sec. 904(f) interest: ($40X$10/$50)...... Separate limitation with respect to sec. 904(f) interest_____ $100 $200 $160 $300 $233 $250 ($32X$10/$50)...... - ...... 6.40 26.60 Taxes actually paid to country X with respect to sec. 904(f) Other income ($32X$40/$50)...... - ...... interesr...... —------300 200 100 160 200 200 Total income...... — 10 Overall limitation with respect to other income------$360 300 400 195 400 490 430 Taxes actually paid with respect to other income...... 260 600 260 276 600 400 300 Unused foreign tax with respect to— Example (3). A, a calendar year taxpayer using the cash receipts and disbursements 200 . method of accounting, chooses to claim a credit under section 901 for each of the taxable Other income-.—------300 . 80 100 . years set forth below, foreign income taxes being paid for the first time in 1962. Based Excess limitation with respect to— 60 160 38 60 upon the taxes actually paid to foreign country X, and the use of the per-country Sec. 904(f) interest...... —- ...... ——'...... ——- ...... Other income.—------—— 150 . 90 130 limitation in each of such years, the unused foreign tax deemed paid under section 904(d) 100 . Is as follows: Unused "foreign tax for 1963 absorbed as taxes deemed paid under sec. 904(d) with respect to— Sec. 904(f) interest: 60 . ($200X$200/$606; or limitation) if less)------80 . 33 . 6 Other income: 160 . 72 . ($120X$300/$500; or limitation,’ if less)------9 100 . Unused foreign tax with respect to other income absorbed as taxes deemed paid under sec. 904(d) and carried from: 18 62 69 33297

FEDERAL REGISTER, VOL. 38, NO. 231— M ONDAY, DECEMBER 3, 1973 33298 RULES AND REGULATIONS

Example (5). N, a calendar year taxpayer using the cash receipts and disbursements method of accounting, pays foreign income taxes for the flrsit time in 1962. N chooses the benefits of section 901 for each of the taxable years set forth below and for 1962 elects the overall limitation, which, with the Commissioner’s consent, is revoked for 1966. N has section 904(f) interest only from foreign country X for the years involved. Based upon the taxes actually paid to foreign countries X and Y for each of the taxable years with respect to income other than section 904(f) interest, and the taxes paid to country X with respect to section 904(f) interest, the unused foreign tax deemed paid under section 904(d) is as follows:

Overall Per-country Taxable years 1962 1963 1964 1965 1966 1967 1968

Separate limitation with respect to sec. 904(f) interest______$100 $200 $160 $300. $233 $250.00 Taxes actually paid to country X w ith respect to sec. 904(f) interest...... — ...... 300 200 100 160 200 200.00 Limitation with respect to other income: Country X,______. ______... 100 200 100.00 Country Y ______;______i_____ I__ 300 290 330.00 Aggregate...-!— ...... 4 ------¡fc...... - ...... —— $350 300 400 "195 Taxes actually paid with respect to other income to— Country X ______..-______;______100 200 100.00 Country Y _____ isaii______.___ !i_____ •___— ______400 200 200.00 Aggregate...... — ~ ...... — ...... £...... 250 600 250 275 Unused foreign tax with respect to— Sec. 904(f) interest______200 ______;____ Other income from: Country X . .. ______-—^*1______... Country Y _____ ... ______i ______. . . . ____ 100 Aggregate...... — — 1...... ! ...... 300 ____ — 80 Excess limitation with respect to— Sec. 904(f) Interest______l ______...... ______. . . . 60 150 33 50.00 Other income from: Country X ------j______Country Y . ______— ______,______90 130.00 Aggregate _____ ...... ,------——...... 100 _____ 1 5 0 ......

(2) Carryover to years after Reve­ (a) With respect to section 904(f) nue Act of 1962. (i) Where, under the interest, an amount which bears the provisions o r section 904(d), taxes paid same ratio to the amount of such taxes or accrued to any foreign country or deemed paid or accrued in the later possession of the United States in any ’ year as the amount of the foreign income taxable year beginning on or before taxes paid or accrued to such country or October 16,1962, are deemed paid or ac­ possession for the later year with respect crued in one or more taxable years begin­ to section 904(f) interest bears to the ning after that date, the amount of such total amount of the foreign income taxes taxes which shall be deemed paid or ac­ -paid or accrued to such country or crued in any taxable year beginning after possession for such later year, and that date (hereinafter referred to as the (b) With respect to other income, an “ later year” ) shall be— amount which bears the same ratio to

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 Example (2). B, a calendar year taxpayer using the cash receipts and disbursements the am ount of such taxes deemed p a i d or

FEDERAL REGISTER, VOL. 38, NO. 231— M ONDAY, DECEMBER 3, 1973 NO 231— Pt. I ------5 33300 RULES AND REGULATIONS

Example ( 3). C, a calendar year taxpayer using the cash receipts and disbursements trict office, the taxpayer will be given 10 method of accounting, pays foreign income taxes for the first time in 1962 and chooses calendar days in which to indicate in the benefits of section 901 for each of the taxable years set forth below. For 1962, C uses writing the extent, if any, to which he the per-country limitation and in 1963 elects the overall limitation. C’s only section 904(f) interest income for the years indicated is from foreign country X. Based upon the taxes may not be in complete agreement. An actually paid for each of the taxable years with respect to income other than section 904(f) extension of time must be justified by the interest, and the taxes paid to country X with respect to the section 904(f) interest, no taxpayer in writing and approved by the unused foreign tax is deemed paid under section 904(d), determined as follows: Chief, Audit Division. Every effort should be made to reach agreement as to the Taxable years facts and specific point at issue. If agree­ 1962 1963 1964 1965 ment cannot be reached, the taxpayer may submit, within 10 calendar days Separate limitation with respect to sec. 904(0 interest...... $100$300 $150 after receipt of notice from the district Taxes actually paid w ith respect to sec. 904(0 in ter est...... *...... 50 200 100 Limitation with respect to other income: office, a statement of his understanding Per-country limitation______...... $ 1 0 0 ____ as to the specific point or points at issue Overall limitation______® ...... 250 280 315 Taxes actually paid with respect to other income...... i60 200 220 280 which will be forwarded to the National Unused foreign tax with respect to— Office with the request for advice. An Sec. 904(f) interest...... ___ __ Other incom e.---...... r...... ¿0 ____ ...... extension of time must be justified by the Excess limitation with respect to— taxpayer in writing and approved by the Sec. 904(f) interest______50 100 50 Chief, Audit Division. Other incom e...... ----- ...... 50 60 35 Unused foreign tax absorbed as taxes deemed paid under sec. 904(d) with (d) If the taxpayer initiates the action respect to— Sec. 904(f) interest______- ______- ...... ______to request advice, and his statement of Other incom e...... the facts and point or points at issue are not wholly acceptable to the district of­ ficials, the taxpayer will be advised in P a r . 6. Section 1.905-2 is amended by Secton 601.106(a) (1) is amended to adding thereto the following new par­ clarify the jurisdiction of the Appellate writing as to the areas of disagreement. agraph : Division and the requirements for Ap­ The taxpayer will be given 10 calendar pellate conferences. days after receipt of the written notice § 1*905—2 Conditions o f allowance of to reply to the district official’s letter. An credit. A new paragraph (r) is added to extension of time must be justified by * ♦ * * • * § 601.201, which makes changes relating the taxpayer in writing and approved by (c) Special schedule. Any taxpayerto procedures applicable for trusts de­ the Chief, Audit Division. If agreement scribed in section 4947(a) (1) of the In ­ claiming the benefit of paragraph (a) (2) cannot be reached, both the statements' ternal Revenue Code of 1954 in obtain­ (iv) or (v) of § 1.904-4 must attach to of the taxpayer and the district official the Form 1118 required by this section ing determinations of their foundation will be forwarded to the National Office. status under section 509(a)(3) of the a schedule showing in sufficient detail * * * * • * Code. Procedures are also furnished for the manner in ^vhich the taxpayer sat­ (iv) Appeal by taxpayers of determi­ isfies the requirement of owning, directly processing requests by section 4947(a) (1) trusts to determine their founda­ nations not to seek technical advice. * * * or indirectly, 10 percent of the voting tion status: (b) The taxpayer may appeal the de­ stock in each corporation from which cision of the examining officer or con­ such taxpayer receives an interest pay­ A new paragraph (s) is added to § 601.201 to explain the Service’s posi­ feree not to request technical advice by ment, or in which the taxpayer owned 19 submitting to that official, within 10 cal­ percent of the voting stock, and with tion with respect to advance rulings or determination letters. endar days after being advised of the respect to which such benefit is claimed. decision, a statement of the facts, law, Revised procedures are set forth in [FR Doc.73-25404 Filed 11-30-73:8:45 am ] and arguments with respect to the issue, § 601.201(e) (15) for the handling of pro­ and the reasons why he believes the tests of adverse rulings under section matter should be referred to the National SUBCHAPTER H— INTERNAL REVENUE 367 of the Code. Under such revised pro­ PRACTICE Office for advice. An extension of time cedures, the decisions regarding such must be justified by the taxpayer in PART 601— STATEMENT OF PROCEDURAL rulings are made by the Assistant Com­ writing and approved by the Chief, Audit RULES missioner (Technical) based upon rec­ Division. ommendations made to him by an ad

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 RULES AND REGULATIONS 33301 agree with the proposed denial, all data mised exceeds $2,500 for any taxable status of his case may do so by contacting relating to the issue for which technical period. * * * the followin offices with respect to mat­ advice has been sought, including tax­ ♦ * * * * ters in the areas of their responsibility: payer’s written request and statements, Par. 3, Section 601.201 is amended by Telephone will be submitted to the National Office, adding a new sentence after the third Numbers Attention: Director, Audit Division, for sentence in paragraph (b )(1 ), by add­ O ffic ial: (Area Code 202) review. After review in the National Of­ Director, Income Tax ing a new sentence after the last sen­ D i v i s i o n ______964-4504 or 964- fice, the district office will be notified tence in paragraph (c) (5), by revising whether the proposed denial is approved 4505. paragraphs (e) (11) and (12), by adding Director, Miscellaneous or disapproved. paragraphs (e) (13), (14), and (15), by and Special Provi­ £ * * * * deleting paragraphs (1) (9) and (10), by sions Tax Division_X, 964-3767 or 964- (v) Conference in the National Office,redesignating paragraph (1) (11) as (1) 3788. (a) If, after a study of the technical ad­ (9), and by adding paragraphs (r) (14) When a taxpayer receives a rul­ vice request, it appears that advice ad­ and (s ). These added and revised provi­ ing or determination letter prior to the verse to the taxpayer should be given and sions read as follows: filing of his return with respect to any a conference has been requested, the tax­ § 691.201 Rulings and determinations transaction that has been consummated payer will be notified of the time and letters. and that is relevant to the return be­ place of the conference. If conferences * * * * * ing filed, he should attach a copy of the are being arranged with respect to more (b) Rulings issued by the National ruling or determination letter to the than one request for advice involving the return. same taxpayer, they will be so scheduled Office. (15) The taxpayer may, within 90 days as to cause the least inconvenience to the (I) * * * The National Office issues rulings as to the foundation status of after receipt of an adverse ruling letter taxpayer. The conference will be ar­ under section 367 of the Code, protest ranged by telephone, if possible, and certain organizations under section 509 (a) of the Code only to the extent pro­ the adverse determination by letter to must be held within 21 calendar days the Assistant Commissioner (Technical). vided in paragraph (r) of this sec­ after contact has been made. Extensions The Assistant Commissioner (Technical) tion. * * * of time will be granted only if justified in will establish an ad hoc advisory board writing by the taxpayer and approved by * * * * * to consider each protest. The Assistant the appropriate Technical branch chief. (c) Determination letters issued by Commissioner will not be a member of (b) * * * in appropriate cases the ex­ district directors. * * * the board but will be present at any amining officer may also attend the (5) * * * Selected district directorsconference granted. Neither the Director, conference to clarify the facts in the also issue determination letters as to the Income Tax Division, the Chief, Reor­ case. * * * ' qualification of certain organizations for ganization Branch, nor any member of * * * * • foundation status under section 509(a) their staffs will be a member of the (d) It is the responsibility of the tax­of the Code, to the extent provided in board. However, the Director, Income payer to furnish to the National Office, paragraph (r) of this section. Tax Division, and Chief, Reorganization within 21 calendar days after the confer­ * * * * * Branch, will be either present or repre­ ence, a written record of any additional (e) Instructions to taxpayers. sented by any conference granted. The board will consider all materials submit­ data, line of reasoning, precedents, etc., « * * * * that were proposed by the taxpayer and ted in writing by the taxpayer and oral discussed at the conference but were not ( I I ) The Director, Income Tax Divi­ arguments presented at the conference. previously or adequately presented in sion, has primary responsibility for issu­ Whether or not a conference is granted, writing. Extensions of time will be ing rulings in areas involving the ap­ all protests will be considered by the granted only if justified in writing by the plication of Federal income and employ­ board, which will make its recommenda­ taxpayer and approved by the appropri­ ment taxes and the interest equalization tion to the Assistant Commissioner ate Technical branch chief. Any addi­ tax to corporate and noncorporate tax­ (Technical) for his decision. The specific tional material and a copy thereof should payers (including individuals, partner­ procedures to be used by a taxpayer in be addressed to and sent to the National ships, estates, and trusts); those involv­ protesting an adverse ruling letter under Office which will forward the copy to the ing income tax conventions or treaties section 367 of the Code will be published appropriate district director. The district with foreign countries; those involving from time to time in the Internal Rev­ director will be requested to give the depreciation, depletion, and valuation enue Bulletin (see, for example, Rev. matter his prompt attention. He may issues; and those involving the taxable Proc. 73-5,1.R.B. 1973-8, 37). verify the additional facts and data and status of exchanges and distributions in * * * * * connection with corporate reorganiza­ comment upon it to the extent he deems XI) Effect of rulings. * * * tions, organizations, liquidations, etc. it appropriate. (9) In the case of rulings involving * * * * * (12) The Director, Miscellaneous and completed transactions, other than those Special Provisions Tax Division, has pri­ P a r . 2. Section 601.106(a)(1) is described in paragraphs (1) (7) and (8) mary responsibility for issuing rulings amended by revising the second and of this paragraph, taxpayers will not be fourth sentences to read as follows: with respect to organizations exempt afforded the protection against retroac­ from income tax; matters involving the tive revocation provided in paragraph § 601.106 Appellate functions. qualification of pension, annuity, profit- (1) (5) of this paragraph in the case of (a) General. (1) * * * sharing, stock bonus, and bond purchase proposed transactions since they will not * * * Unless they otherwise specify, plans, the tax treatment of employees have entered into the transactions in re­ taxpayers living outside the United and their beneficiaries and deductions liance on the rulings. States use the facilities of the Washing­ for employer contributions under such * * * * * ton, D.C., branch office of the Appellate plans; areas involving the application (r) Rulings and determination letters Division of the Mid-Atlantic Re­ of Federal estate and gift taxes, including gion * * * estate and gift tax conventions or treaties with respect to foundation status classi­ with foreign countries; certain excise fication— (1) through (5) [Reserved] A written protest is required if the (6) Nonexempt charitable trusts claim­ total amount of proposed additional tax, taxes; the procedure and administration ing nonprivate foundation status under proposed over-assessment, or claimed re­ provisions of the Internal Revenue Code; fund exceeds $2,500 for any taxable pe­ and matters requiring actuarial deter­ section 509(a) (3) of the Code— (1) Gen­ riod; or in an offer-in-compromise, if the minations. - eral. (a) A trust described in section tax, penalty, and assessed (but not ac­ (13) A taxpayer or his representative 4947(a) (1) of the Code is one that is not crued) interest sought to be compro­ desiring to obtain information as to the exempt from tax under section 501(a)

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 33302 RULES AND REGULATIONS of the Code, has all Of its unexpired in­ 1. By its second report and order in Langdon, Jr., trustees, authorized to as­ terests devoted to one or more of the Docket 13847, released on February 9, sume joint supervisory control over rail­ purposes described in section 170(c) (2) 1968, 34 FR 3114, the Commission termi­ road operations of Albany Port District (B) of the Code, and is a trust for which nated the operation of Class B stations Commission, Albany, New York) be, and a charitable deduction was allowed. in the Citizens Radio Service, effective it is hereby, amended by substituting the These trusts are subject to the private November 1, 1971. following paragraph (d) for paragraph foundation provisions (Part n of sub­ 2. An editorial change is desirable in (d) thereof: chapter F of chapter 1 and chapter 42 order to delete obsolete material. The (d) Expiration date. This order shall of the Code) except section 508 (a ), (b ), amendments hereby adopted are editorial expire at 11:59 p.m., May 31, 1974, un­ and (c) of the Code. The procedures to revisions merely deleting existing rule less otherwise modified, changed, or sus­ be used by nonexempt charitable trusts provisions or references to Class B sta­ pended by order of this Commission. to obtain determinations of their foun­ tions which are no longer necessary. Effective date. This amendment shall dation status under section 509 (a) (3) of Therefore, prior notice of rulemaking, become effective atf 11:59 p.m., Novem­ the Code will be published from time to publib procedure, and, effective date pro­ ber 30, 1973. time in the Internal Revenue Bulletin visions are unnecessary, pursuant to the (Secs. T, 12, 15, and 17(2), 24 Stat. 379 , 383, (see, for example, Rev. Proc. 72-50, Administrative Procedure and Judicial 1972-2 C.B. 830). 384, as a m e n d e d ; 49 U .S .C . 1, 12, 15, and Review provisions of 5 U.S.C. 553. 17(2). Interprets or applies Secs. 1 (1 0 -1 7 ), (s) Advance rulings or determination 3. Accordingly, it is ordered, That pur­ 1 5 (4 ), a n d 1 7 (2 ), 40 S ta t. 101, as amended letters— (1) General. It is the practice of 54 S ta t. 911; 49 U .S .C . 1 (1 0 -1 7 ), 1 5 (4 ), and the Service to answer written inquiries, suant to sections 4 (i), 5(d), and 303(r) ! 7 ( 2 ) . ) of the Communications Act of 1934, as when appropriate and in the interest of I t is further ordered, That a copy of sound tax administration, as to the tax amended, and § 0.231(d) of the Com­ this amendment shall be served upon the effects of acts or transactions of individ­ mission’s rules and regulations, that ef­ Association of American Railroads, Car uals and organizations and as to the fective December 7, 1973, Parts 1 and 95 Service Division, as agent of all railroads status of certain organizations for tax are amended as set forth below. subscribing to the car service and car purposes prior to the filing of returns or hire agreement under the terms of that reports as required by the Revenue laws. (S ecs. 4, 5, 303, 48 S tat., as a m en d ed , 1066, 1068, 1082; 47 U .S .C . 154, 155, 303.) agreement, and upon the American (2) Exceptions. There are, however, Short Line Railroad Association; and certain areas where, because of the in­ Adopted: November 21,1973. that notice of this amendment be given herently factual nature of the problems Released: November 23,1973. to the general public by depositing a involved or for other reasons, the Serv­ copy in the Office of the Secretary of the ice will not issue advance rulings or de­ F e d e r a l C ommunications Commission at Washington, D.C., and by termination letters. Ordinarily, an ad­ C o m m i s s i o n , filing it with the Director, Office of the vance ruling or determination letter is [ s e a l ] S t a n l e y E . M c K i n l e y , Federal Register. not issued on any matter where the de­ Deputy Execuitve Director. By the Commission, Railroad Service termination requested is primarily one Parts 1 and 95 of 47 CFR Ch. I are of fact (e.g., market value of property), Board. amended as follows : or on the tax effect of any transaction 1. In §§ 1.912(d), 1.922 (Form 505), [ s e a l ] R o b e r t L . O s w a l d , to be consummated at some indefinite 1.926(b) (10), 95.5(a), 95.6(b>, 95.13 (a ) Secretary. future time or of any transaction or mat­ and (c), 95.15(b), 95.19 (a) and (a )(3 ), [PR Doc.73-25558 Piled 11-30-73:8:45 am] ter having as a major purpose the re­ 95.35(b), 95.37(c), the note to 95.83(a) duction of'Federal taxes. A specific area (7), 95.101(a), 95.117(c), 95.119(d), [S .O . 1106, A rn dt. 4 ] or a list of these areas is published from wherever the reference to Class B is made PART 1033— CAR SERVICE time to time in the Internal Revenue it is deleted and the footnote accompany­ Baltimore and Ohio Railroad Co. Bulletin (see, for example, Rev. Proc. ing § 95.15(b) is deleted. 2. Section 95.41(b) is deleted an desig­ 72-9, 1972-1 C.B. 718). Such list is not At a session of the Interstate Com­ nated [Reserved]. merce Commission, Railroad Service all inclusive. Whenever a particular item 3. Section 95.47(b) is deleted and desig­ Board, held in Washington, D.C., on the is added to or deleted from the list, nated [Reserved], 23rd day of November 1973. however, appropriate notice thereof will 4. Section 95.49(b) is deleted and des­ Upon further consideration of Service be published in the Internal Revenue ignated [Reserved]. Order *No. 1106 (37 FR 15307, 38 FR Bulletin. The authority and general [PR Doc.73-25545 PUed 11-30-73;8:45 am] 3332 and 14754), and good c a u se appear­ procedures of the National Office of the ing therefor: Title 49— Transportation I t is ordered, That: § 1033.1106 Serv­ Internal Revenue Service and of the of­ ice Order No. 1106 (The Baltimore and fices of the district directors of internal CHAPTER X— INTERSTATE COMMERCE Ohio Railroad Company authorized to revenue with respect to the issuance of COMMISSION operate over tracks of Penn Central advance rulings and determination let­ SUBCHAPTER a — g e n e r a l r u l e s a n d Transportation Company, George P. REGULATIONS ters are outlined in paragraphs (b) and Baker, Richard C. Bond, and Jervis [S . 0 . 1102, A m d t. 3 ] (c) of this section. Langdon, Jr., trustees) be, and it is PART 1033— CAR SERVICE hereby, amended by substituting the fol­ [ s e a l ] D o n a l d C . A l e x a n d e r , lowing paragraph (e) for paragraph (e) Commissioner. Delaware and Hudson Railway Co. and thereof: Penn Central Transportation Co. [PR Doc.73-25556 PUed ll-30-73;8:45 am] (e) Expiration date. The provisions At a session of the Interstate Com­ of this order shall expire at 11:59 p.m., January 31,1974, unless otherwise modi­ Title 47— Telecommunications merce Commission, Railroad Service fied, changed, or suspended by order of Board, held in Washington, D.C., on the CHAPTER I— FEDERAL this Commission. COMMUNICATIONS COMMISSION 27th day of November 1973. Effective date. This amendment shall PART I— PRACTICES AND PROCEDURE Upon further consideration of Service become effective at 11:59 p.m., Novem­ Order No. 1102, (37 FR 13697, 28634; ber 30,1973. PART 95— CITIZENS RADIO SERVICE and 38 FR 17843), and good cause ap­ (Secs. 1, 12, 15, a n d 1 7 (2 ), 24 S tat. 379, 383, Class B Stations pearing therefor: 384, as amended; 49 U.S.C. 1, 12, 15, and In the matter of editorial amendment It is ordered, That: § 1033.1102 Service 17(2). Interprets or applies Secs. 1(10-17), 15(4), and 17(2), 40 Stat. 101, as am ended, of parts 1 and 95 of the Commission's Order No. 1102 (Delaware and Hudson 54 Stat. 911; 49 UJS.C. 1(10-17), 15(4), and rules and regulations to delete reference Railway Company and Penn Central 1 7 (2 ).) to Class B stations in the Citizens Radio Transportation Company, George P. I t is further ordered, That a copy of Service. < Baker, Richard C. Bond, and Jervis this amendment shall be served upon the

FEDERAL REGISTER. VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 RULES AND REGULATIONS 33303 submit comments, suggestions, or objec­ Association of American Railroads, Car Title 38— Pensions, Bonuses, and Veterans’ Relief tions regarding the proposed regulations. Service Division, as agent of all railroads subscribing to the car service and car CHAPTER I— VETERANS No written comments have been re­ hire agreement under the terms o f that ADMINISTRATION ceived and the proposed regulations are agreement, and upon the American Short PART 21— VOCATIONAL REHABILITATION hereby adopted without change and are Line Railroad Association; and that no­ AND EDUCATION set forth below. tice of this amendment be given to the general public by depositing a copy in Subpart A— Vocational Rehabilitation Effective date.—These VA Regulations Under 38 U.S.C. Ch. 31 the Office of the Secretary of the Com­ are effective November 26,1973. mission at Washington, D.C., and by P e r i o d s o f E l i g i b i l i t y Approved: November 26,1973. filing it with the Director, Office of the On page 28844 of the F e d e r a l R e g i s t e r By direction of the Administrator. Federal Register. of October 17,1973, there was published a By the Commission, Railroad Service [ s e a l ] R i c h a r d L . R o u d e b t j s h , notice of proposed regulatory develop­ Assistant Deputy Administrator. Board. ment to amend § 21.42 to define and cate­ 1. Section 21.42 is revised to read as [ s e a l ] R o b e r t L . O s w a l d , gorize the periods of basic eligibility in Secretary. \ more simple and citable terms. Interested follows: [FR Doc.73-25559 Filed 11-30-73; 8:45 am] persons were given 30 days in which to § 21.42 Dates of eligibility.

Extension under § 21.41(0 Basic dates Extension undçr § 21.41(a) -(e)

(5) (6) a) ■ (2) (3) (4) Extended termi­ Basic termination If the basic termi­ Beginning and Extended termina­ If veteran does not Date disability Date of discharge.1 have sufficient nation date under date (Last pay nation date is less ending date of tion date under incurred. ; training time for §21.41(0. date). than 4 years away —critical * period § 21.41(a) through or has already | 21.41(a) through (e) Oast pay date). completion of Seriously Disabled. passed, consider­ (e). rehabilitation by ation should first his basic termi- 13 years after dis-: nation date or by 6-30-75 or 10 years After 9-15-40. 9 years after dis­ be given for the 4 years and 9 (a) 9-16-40 to months to 5 years charge date.1 any applicable after termination 7 25-47. : charge date. 4-year extension and § 21.41(a) after discharge extension under . date whichever is through (e). See date. § 21.41(a) through later.® Columns (4) and (e), then exten- sion under 10-14-71. (5). 7-14-67 to 10-14-67. 10-14-75. (b) 7-26-47 to . Before 19-15-62. § 21.41(0 should 6-26-50. be considered, 9 years after dis­ 4 years and 9 13 years after dis­ After 10-14-62. See Column ( ). charge date. months to 5 charge date.* 6 years after dis­ charge date.

4 years and 9 13 years after dis­ (c; 6-27-50 to After 6-26-50. 9 years after dis­ charge date.4 months to 5 years charge date.4 1-31-55. after discharge date.

10-14-75. (d) After | Before 10-15-62. 10-14-71.^ -7-14-67 to 10-14-67. 1-31-55. ;•* 13 years after dis­ After 10-14-62. 9 years after dis­ 4 years and 9 charge date. months to 5 years charge date. after discharge date.

i Date of discharge refers to the first unconditional discharge or release following the dates has expired, further extension may only be granted if the veteran qualifies period of service in which the disability occurred. under § 21.41(f). i Critical period is the 90-day period immediately preceding the date falling exactly 4 In no case was basic termination date (last pay date) earlier than 8-19-63 or 4 years prior to the veteran’s basic termination date. It is a 90-day penod which per­ extended termination date earlier than 8-19-67. mits the veteran time to complete counseling and select an objective which can be * Applicable termination date is 9 years after discharge or 13 years if training was reached within the 4-year period immediately following. . extended under § 21.41(a) through (e). •When extended termination date under § 21.41(a) through (e) for these service 2. In § 21.43, paragraph (b) is amended Title 40— Protection of Environment eral Environmental Pesticide Control Act of 1972 (86 Stat. 995) (hereinafter re­ to read as follows: CHAPTER I— ENVIRONMENTAL PROTECTION AGENCY ferred to as the “Act” ) . See the preamble § 21.43 Severance of service connec­ of the proposed rulemaking for a descrip­ tion— reduction to noncompensable SUBCHAPTER E— PESTICIDE PROGRAMS tion of the purposes of the regulations. degree. PART 166— EXEMPTION OF FEDERAL AND Written comments on the proposed ***** STATE AGENCIES FOR USE OF PESTI­ rulemaking were invited and received (b) Reduction while in training. If the CIDES UNDER EMERGENCY CONDI­ from interested parties. A number of proposed rating action is taken while the TIONS verbal comments were also received. All veteran is in training and results in a re­ On April 17,1973, notice was published written comments are on file with the duction to. a noncompensable rating of in the F e d e r a l R e g i s t e r (38 FR 9519) Agency. Certain of these comments have his disability, the veteran may be re­ proposing regulations for the exemption been« adopted or substantially satisfied tained in training until the attainment of Federal or State Agencies for the use by editorial changes, deletions from of his objective, except if “discontinued” or additions to the regulations. These under § 21.283 he may not reenter. See of pesticides under emergency conditions also § 21.252. pursuant to the provisions of Section 18' changes are described below. of the Federal Insecticide, Fungicide, and Section 166.1 General. A commenter [PR Doc.73-25540 Filed ll-30-73;8:45 am ] Rodienticide Act, as amended by the Fed- has suggested that the term “emergency”

FEDERAL REGISTER, VOL 38, NO. 231— MONDAY, DECEMBER 3, 1973 33304 RULES AND REGULATIONS

be defined. While the Agency does not tion of “foreign pest” has been changed of the pesticide is so critical that there believe that under Section 18 we should to make clear that it includes a pest not was no tune to request a specific or limit by definition the right of any Fed­ previously known to be established with­ quarantine—public health exemption eral or State agency to apply for an ex­ in the United States but which has be­ and where the other requirements of emption, we agree that guidance should come newly established, or threatens to § 166.8 are met. be given on the criteria the Agency in­ become established, within the United (2) Several commenters suggested that tends to use in determining that an States. cancelled pesticides, as well as suspended emergency condition exists. Accordingly, (2) A requirement of this section is pesticides, be prohibited from use under language has been added setting forth that, where a pesticide has been used this exemption. We have adopted this such criteria. The Agency will also give under this exemption and recurrence of suggestion. It is the view of this Agency consideration to any additional facts the pest can be reasonably expected, the that where a product has been the sub­ requiring the use of Section 18 as are pre­ Federal or State agency shall take ject of a final cancellation order by the sented by the applicant. prompt action to comply with the regis­ Administrator, it should not be used in Section 166.2(a) Specific exemption. tration requirements of the Act for the a manner contrary to such order under (1) Several commenters raised questions particular use. A sentence has been added this exemption. regarding the use of the words “predict­ to make clear that if such request for In reaching this decision, we have able or unpredictable” in the first sen­ registration is refused, the pesticide shall given careful consideration to comments tence of this section as proposed. The not be further used for the particular from USDA and some of the States as to words “predictable or unpredictable” use under the exemption. the need to use cancelled pesticides in were used to emphasize that the Agency (3) A provision has been added that no certain emergency situations. However, does not intend to limit the right of any pesticide may be used under this exemp­ we believe that where a use of a pesticide Federal or State agency to apply for tion if the registration of such pesticide has been prohibited by a cancellation an exemption. However, since these has been suspended. Such change is con­ order of the Administrator, such use words have raised questions and are un­ sistent with a similar requirement in should not be allowed under Section 18 necessary to the intended meaning, we § 166.2(c). The Agency believes that except upon prior approval of the Admin­ have stricken the words “predictable or where a pesticide has been suspended, istrator. In short, it is our view that this unpredictable” from the first sentence any further use of such pesticide should is a matter which should be handled of § 166.2(b). be made only upon a determination by under the specific exemption provisions (2) A commenter suggested that thethe Administrator on a case-by-case of these regulations rather than the regulations list possible restrictions which basis. crisis exemption provisions. may be prescribed by the Administrator (4) USDA informed the Agency that We are mindful, also, of the time fac­ in granting an exemption. A sentence its programs to prevent the introduction tors involved in these situations. We wish has been added to this Section listing or spread of a foreign pest into or to assure other Federal and State agen­ types of restrictions which may be pre­ throughout the United States are not cies that procedures have been and are scribed. carried out under statutes technically im­ being established to handle these emer­ Section 166.2(b) Quarantine—Public posing quarantines, but are conducted gency applications within a practical Health Exemption. (1) Several com­ under broad authorities delegated to the time frame. menters suggested that the definition of Secretary under other statutes. USDA Section 166.3 Application for specific “foreign pest” be clarified. The com­ has raised the question of whether the exemption. (1) A commenter suggested ments fall into two categories: (a) That language used to define this exemption that a provision be added requiring the the definition include those pests which, may be construed to exclude its activities applicant to furnish a statement of eco­ while not previously known to occur under such statutes. It is our intention nomic losses and benefits resulting from within the United States, have become in this exemption to cover any Federal or the granting or denying of the applica­ “recently established” in the United State program concerned with prevent­ tion and under certain alternatives. States and (b) that the definition include ing the introduction or spread of a for­ The Agency believes that this is a rea­ pests not known to occur in a particular eign pest into or throughout the United sonable and necessary requirement and State. States, irrespective of the term which sucli a provision has been added. This type of exemption was provided may be applied to such programs under (2) Several commenters suggested to cover Federal and State programs the Federal or State statute. According­ that, under § 166.3(a)(3), the applicant where immediate pesticide treatments ly, the first sentence of § 166.2(b) has state what efforts have been made to may be required to prevent the introduc­ been changed to make clear this intent. determine “ whether a pesticide regis­ tion of pests at ports of entry or against Section 166.2(c) Crisis exemption. (1) tered for a particular use, or other new pest outbreaks which may occur in Several commenters suggested that the method of eradicating or controlling the the United States (See Cong. Rec., Oc­ crisis exemption be eliminated. This sug­ pest, is available to meet the emergency.” tober 12, 1972, H 9797). It is recognized gestion has not been adopted. We believe it is reasonable to request that new pests—pests not known to oc­ The crisis exemption is a narrowly that an agency inform us of the basis for cur within the United States— may drawn exemption. The exemption is its determination under this section and breach the first line of defense, i.e. port» created to cover, principally, the types have added appropriate language. Sim­ of entry, and be detected at some other of emergencies which occur as a result of ilar language has been added with re­ point within the country. Here, as at catastrophes such as floods and hurri­ spect to like determinations made under ports of entry, it is of importance that canes. It is anticipated that practically the quarantine—public health exemption immediate action be taken to prevent all emergencies will be handled under the (§ 166.4(a) (2 )) and the crisis exemption such pests from becoming established provisions of these regulations for spe­ (§ 166.8(b)). within the United States. It is not the cific or quarantine— public health ex­ (3) Several commenters suggested that emptions. However, it is recognized that intention of this Agency to limit the abil­ a provision be added to § 166.3(a) (5) re­ ity of a Federal or State agency to react there may be situations where there is an to this situation. However, it is also be­ unpredictable outbreak of a pest and quiring the agency to give a description lieved that this exemption should be lim­ where time will not allow the requesting of the area or place of application of the ited to new pests; it should not be ex­ of a specific or quarantine—public health pesticide. Such a provision has been panded to cover pests which are known to exemption. Crisis exemptions are granted added to § 166.3(a)(5). to cover these situations upon a deter­ be established within the United States. Section 166.4 Application for quaran­ mination by the responsible official of the In such cases, where control agencies are tine—public health exemption. A provi­ dealing with previously established pests, Federal or State agency that (a) there is there should either be a pesticide regis­ no readily available pesticide registered sion has been adding requiring the appli­ tered for use against such a pest or the for the particular use to eradicate or cant to submit an Environmental Impact situation is one which may be covered control the pest and (b) that the time Statement with the application for an under a specific exemption. The defini- element with respect to the application exemption, if an Environmental Impact

FEDERAL REGISTER, VOL. 38, NO. 231— M O NDAY, DECEMBER 3, 1973 RULES AND REGULATIONS 33305

Statement has been prepared and is rel­ this matter, the last sentence of this A new Part 166, Chapter I, Title 40 of evant to such application. Such change section has been changed to provide that the Code of Federal Regulations is es­ makes t-his provision consistent in this a Federal or State agency which has ini­ tablished, to read as follows: respect with the requirements under tiated treatment pursuant to the crisis Sec. § 166.3(a) (7). exemption and has complied with the 166.1 G e n e ra l. Section 166.5 Procedures under specific provisions of §§ 166.2(c) and 166.8, may, 166.2 T y p es o f e xem p tio n s. exemption. (1) The language has been if a responsible official of the agency 166.3 Application for specific exemption. changed to make clear that the monitor­ determines that there is a need for a con­ 166.4 Application for quarantine— public ing activities which are to be initiated tinuation of such treatment beyond fif­ health exemption. teen (15) days, continue such treatment 166.5 Procedure to be followed upon ap­ are such monitoring activities as may proval of a specific exemption. have been specified by the Administrator until such time as the application for a 166.6 Procedure to be followed after ap­ in granting the exemption. specific exemption is denied or the Ad­ plication of a pesticide pursuant (2) A commenter suggested that a pro­ ministrator otherwise notifies such to' a quarantine— public health vision be added requiring an applicant agency that the treatment should be dis­ e xem p tio n . for a specific exemption, whether or not continued. 166.7 Withdrawal of a specific or quaran­ the exemption was granted or denied, to Section 166.10 Publication. A commen­ tine— public health exemption. ter suggested that provision be made 166.8 Crisis exemptions— procedures to be submit a summary report on the action fo llo w e d . taken and on the outcome. A provision for notice of, and opportunity for com­ 166.9 Withdrawal of the crisis exemption. has been added requiring the submission ment on, applications for exemptions. 166.10 P u b lic a tio n . of such a summary report in cases where The proposed regulation limited publi­ 166.11 E x e m p tio n fro m p e n a lty pro visio n s. cation in the Federal Register to the the specific exemption is granted. We Authority: S ec. 25 of the Federal Insecti­ believe that this Agency has a respon­ granting of any exemption and any noti­ cide, Fungicide, and Rodenticide Act, as sibility to follow up where exemptions fication that a Federal or State agency amended by the Federal Environmental are denied and intend to do so through has availed itself of a crisis exemption. Pesticide Control Act of 1972 (86 S ta t. 997). our Regional Offices in situations where We believe that the time factor in most § 166.1 General. an exemption which would involve the cases will be such that to require F e d e r a l use of a significant amount of pesticide R e g i s t e r publication in all instances Pursuant to section 18 of the Federal is not granted. could well frustrate the purposes of Sec­ Insecticide, Fungicide, and Rodenticide Section 166.8 Crisis exemptions—pro­ tion 18 of the statute. As stated above, Act, as amended by the Federal En­ cedures to be followed. (1) This section applications for exemptions will be han­ vironmental Pesticide Control Act of has been changed to provide that when­ dled on an expedited basis. However, it is 1972 (86 Stat. 995), the Administrator ever a Federal or State agency has deter­ recognized that there may be instances may exempt from the requirements of mined that it will initiate the applica­ where an application for an exemption the Act a Federal or State agency if he tion or use of a pesticide pursuant to raises questions of such importance that determines that emergency conditions a crisis exemption, it shall, within thirty- public notice and opportunity for com­ exist which may require such an exemp­ six (36) hours of such determination, ment should be given. This is a. matter tion. An emergency will be deemed to give notice to the Administrator by which should be left to the discretion of exist when: (a) A pest outbreak has or telegram. The proposed regulation would the Administrator. To accomplish this, a is about to occur and no pesticide reg­ have required such notice within thirty- sentence has been added to Sec. 166.10 istered for the particular use, or alterna­ six (36) hours of the initiation of the providing that the Administrator, in his tive method of control, is available to application or use of the pesticide. This discretion, may publish notice of an eradicate or control the pest, (b) sig­ change will give notice to the Adminis­ application for an exemption in the F e d ­ nificant economic or health problems trator at the earliest possible time that e r a l R e g i s t e r prior to the granting or will occur without the use. of the pesti­ an agency intends to avail itself of a denying of the exemption, with oppor­ cide, and (c) the time available from crisis exemption. tunity for comment by interested discovery or prediction of the pest out* (2) Several commenters felt that the persons. break is insufficient for a pesticide to ten-day period allowed insufficient time Section 166.11 Exemption from penal­ be registered for the particular use. In for an agency to make a report and to ties. A section has been added which will determining whether an emergency con­ file an application for a specific exemp­ exempt from the penalty provisions of dition exists, the Administrator will also tion if treatment was expected to con­ the statute a person who ships, delivers give consideration to such additional tinue for more than fifteen days. Other or sells an unregistered pesticide to a facts requiring the use of section 18 as commenters asked clarification of the Federal or State agency for use under an are presented by the applicant. Set forth provision relating to the continuance of exemption. This section provides that, herein are the procedures that Federal the treatment for more than fifteen days. in the case of an application for an ex­ or 'State agencies must follow in request­ They stated that there will be instances emption for the use of a pesticide which ing such an exemption. where treatment must continue beyond has been suspended or finally cancelled, fifteen days to be effective. the applicant shall state its source of the § 166.2 Types o f exemptions. The time schedules of this provision pesticide and the Administrator will, if Consideration will be given to three have been carefully reexamined in the the exemption is granted, exempt the types of exemptions. light of the comments received. It is not supplier of the pesticide from the penalty (a) Specific exemption. Specific ex­ believed that the ten-day reporting re­ provisions of the Act. In granting such emptions may be issued by the Admin­ quirement, or the requirement for appli­ exemption, the Administrator will also istrator in a situation involving the cation for a specific exemption, are such specify the labeling which will be re­ outbreak of a pest in the United States. that it should cause an undue burden on quired for such pesticide. Such exemptions, if granted, are valid any agency availing itself of this exemp­ Effective date. These regulations shall only for the specific situation involved tion. Therefore, we have made no • become effective on December 10, 1973: and are subject to such restrictions as changes in such time schedules. Provided, however, That with respect to the Administrator may prescribe in The purpose in requiring an applica­ ongoing Federal or State quarantine or granting the exemption. Such restric­ tion for a specific exemption to be filed public health programs, said regulations tions may include, among others, limi­ within ten days, where treatment is ex­ shall become effective on March 1, 1974, tation on the quantity of the pesticide to pected to continue beyond fifteen days, is in order that agencies administering to give the Administrator the opportu­ such programs may be afforded sufficient be used, the conditions under which the nity to determine whether, and the ex­ time to achieve compliance. pesticide may be applied, restrictions as tent to which, the treatment should be Dated: November 16, 1973. to the persons who may apply the pesti­ allowed to continue. This will be done cide and the type of monitoring activi­ under the specific exemption provisions. C h a r l e s L . E l k i n s , ties which should be conducted. Specific It was not the intention to automatically Acting Assistant Administrator exemptions, if granted, are valid only cut off these emergency treatments at for Hazardous Materials Con­ the end of fifteen days. In order to clarify trol. for the time therein specified but under

FEDERAL REGISTER, VOL. 38, NO. 231— M O NDAY, DECEMBER 3, 1973 33306 RULES AND REGULATIONS

no circumstances shall be longer than (4) A listing of the pesticide or pesti­ ministrator within ten (10) days of the one (1) year. cides the agency proposes to use in the termination o f said application or use (b) Quarantine—public health exemp­ event of an outbreak. (c) Initiate such monitoring activities tion. Quarantine or public health exemp­ (5) Description of the nature of the as may have been specified by the Ad­ tions may be issued by the Administra­ program for eradication or control. Such ministrator in granting the exemption, tor to cover Federal or State programs description should include: to determine if such application, or use concerned with preventing the intro­ (i) Quantity of the pesticide expected caused any adverse effects on man or the duction or spread of a foreign pest into to be applied; environment, with results thereof being or throughout the United States. A for­ (ii) Area or place of application; reported to the Agency as requested by eign pest is a pest not known to occur (iii) Method of application; the Administrator in granting the ex­ within the United States, or a pest not (iv) Duration of application; emption. previously known to be established with­ (v) Qualifications of personnel in­ (d) Within one year of the granting of in the United States but which has be­ volved in such application. the exemption, provide the Adminis­ come newly established, or threatens to (6) Statement of economic benefits trator with a summary report on what become established, within the United and losses anticipated with and without action was taken to meet the emergency States. Such exemptions, if granted, are the exemption and under reasonable and on the outcome of such action. valid only for the time therein specified alternatives. but under no circumstances shall be (7) Analysis of possible adverse effects § 166.6 Procedure to be followed after longer than one (1) year. The Adminis­ on man and the environment. If an En­ application o f a pesticide pursuant to ® quarantine— public health exem p­ trator may, in his discretion, renew such vironmental Impact Statement has been tion. exemption annually upon reapplication. prepared by an agency, in accordance Where pesticide is used under this ex­ with that agency’s regulations imple­ The Federal or State agency using or emption and recurrence of the pest can menting the National Environmental applying pesticides pursuant to a quar­ be reasonably expected, the Federal or Policy Act of 1969, and is relevant to the antine—public health exemption shall State agency shall take prompt action to above, it shall be submitted with the thereafter: comply with the registration require­ application. (a) Maintain records of all such treat­ ments of the Act for the particular use. If ments which shall be available to the such request for registration is refused, § 166.4 Application for quarantine— Administrator. Such records shall in­ pubKc health exemption. such pesticide shall not be further used clude : for the particular use under the exemp­ (a) Quarantine—publip health exemp­ (1) Location where treatment was ap­ tion. No pesticide may be used under a tions must be requested in writing, by plied; quarantine—public health exemption if the head of the Federal agency or the (2) Pesticide used; the registration of such pesticide has Governor of- the State involved, or their (3) Rate of application; and been suspended by the Administrator. official designee, setting forth the follow- • (4) Quantity used. (c) Crisis exemption. Crisis exemp­ ing information: (b) One month after the expiration tions are hereby granted to any Federal (1) The scope of the quarantine or date of a quarantine— public health ex­ or State agency in situations involving public health programs concerned and emption, any agency which has availed the unpredictable outbreak of pests in the statutory authorities therefor. itself of such exemption, shall file with the United States, where the responsible (2) Whether a pesticide registered for the Administrator and the Hearing Clerk official in authority determines (1) that the particular use, or other method of of the Agency a report listing the num­ there is no readily available pesticide eradicating or controlling the pest, is ber of treatments, the pesticides used registered for the particular use to eradi­ available to implement the quarantine for each type of treatment, and the cate or control the pest and (2) that the or public health program, and the basis steps taken to comply with the registra­ time element with respect to the appli­ for such determination. tion requirements of the Act. Copies of cation of the pesticide is so critical that (3) A listing of the pesticide or pesti­ such reports filed with the Hearing Clerk there was no time to request a specific cides the agency proposes to use for such shall be open to the public. exemption and where the other require­ quarantine or public health program. (4) A description of the nature of the § 166.7 Withdrawal o f a specific or q u ar­ ments of § 166.8 are met. Crisis exemp­ an tin e-p u blic health exemption. tions are not available where the Admin­ quarantine or public health program for istrator has specifically withdrawn the such eradication or control.-Such de­ I f the Administrator determines that right to a crisis exemption: For the use scription should include: an exempted agency is not complying of a pesticide or by an agency. No pesti­ (i) Method of application; with any of the requirements set forth cide which has been suspended or finally (ii) Area or place of application (if in this part or if such action is neces­ cancelled may be used under a crisis ex­ possible) ; sary to protect man or the environment, emption for any use prohibited under the (iii) Duration of application; the exemption shall be immediately with­ suspension or final cancellation order for (iv) Qualifications of personnel in­ drawn. volved in such application. the product. § 166.8 Crisis exemptions— p ro ced u res § 166.3 Application for specific exemp­ (5) Statement with respect to possible t o be followed. adverse effects on man and the environ­ tion. (a) Whenever a Federal or State ment. I f an Environmental Impact (a) Each specific exemption must beStatement has been prepared by an agency has determined that it will avail requested in writing, by the head of the agency, in accordance with that agency’s itself of „a crisis exemption (except as Federal agency or the Governor of the regulations implementing the National prohibited by a withdrawal of the privi- State involved, or other official designee, Environmental Policy Act of 1969, and is ledge by the Administrator as provided addressed to the Administrator, setting relevant to the above, it shall be sub­ by § 166.9) the head of the Federal forth the following information: mitted with the application. agency or the Governor of the State or (1) The nature, scope and frequency of their designees shall, within thirty-six the emergency. §166.5 Procedure to be followed upon (36) hours of the determination, notify (2) A description of the pest known to approval o f a specific exemption. the Administrator by telegram of such occur, the places or times it may be likely The Federal or State agency using or determination. Within ten (10) days of to occur, and the estimated time when applying a pesticide pursuant to a spe­ the application or use of the pesticide, treatment must be commenced to be cific exemption shall thereafter: the head of the Federal agency or the effective. (a) Immediately inform the Adminis­ Governor of the State or their designees (3) Whether a pesticide registered for trator in writing of the time and place shall file in writing with the Adminis­ the particular use, or other method of of application of such pesticide. trator the following certified informa­ eradicating or controlling the pest, is (b) Record the location, quantity, and tion: available to meet the emergency, and the extent of use of the pesticide involved (1) The nature and scope of the emer­ basis for such determination. and furnish such information to the Ad­ gency, including the pest involved;

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 RULES AND REGULATIONS 33307

ministrator is notified that a Federal or (2) That no pesticide registered for may, if a responsible official of the State agency has availed itself of a crisis the particular use to eradicate or con­ agency determines that there is a need exemption and filed the information re­ trol the pest was readily available, and for a continuation of such treatment be­ quired by § 166.8, he shall give prompt the basis for such determination; yond fifteen (15) days, continue such (3) That the time element was so crit­ treatment until such time as the applica­ notice in the F e d e r a l R e g i s t e r . The Ad­ tion for a specific exemption is denied ministrator, in his discretion, may pub­ ical that there was no time to request lish notice of an application for an ex­ either a specific or quarantine or public or the Administrator otherwise notifies such agency that the treatment should emption in the F e d e r a l R e g i s t e r prior to health exemption; the granting or denying of the exemp­ (4) The location, quantity, method of be discontinued. tion, with opportunity for comment by application, duration of application and § 166.9 Withdrawal of the crisis exemp­ interested persons. the qualifications of the personnel in­ tion. § 166.11 Exemption from penalty provi­ volved in such application; At any time that the Administrator (5 ) Description of steps being taken to sions. determines that an exempted agency is reduce possible adverse effects on man not complying with any of the require­ In the case of an application for an and the environment ; and exemption for the use of a pesticide (6) Any other information requested ments set forth in this Part or if such action is necessary to protect man or the which has been suspended or finally can­ by the Administrator thereafter. environment, he may (a) withdraw the celled, the applicant shall state its (b) If treatment pursuant to the crisis crisis exemption for the use of any spe­ source of the pesticide and the Adminis­ exemption is expected to continue for trator will, if the exemption is granted, more than a total of fifteen (15) days, cific pesticide or (b) withdraw from the exempted agency the right to resort to exempt the supplier of the pesticide such report shall be accompanied by an from the penalty provisions of the Act. application for a specific exemption. a crisis exemption for any pesticide in the future, in whole or in part. In granting such exemption, the Ad­ (c) A Federal or State agency which ministrator will also specify the labeling has initiated treatment pursuant to the § 166.10 Publication. which will be required for such pesticide. crisis exemption and has complied with At any time any exemption is granted the provisions of §§ 166.2(c) and 166.8, by the Administrator, or when the Ad­ [FR Doc.73-25446 Filed 11-30-73:8:45 am ]

FEDERAL REGISTER, VOL. 38, NO. 231— MONDAY« DECEMBER 3, 1973 No 231—Pt I -----6 33308

Proposed Rules

This section of the FEDERAL REGISTER contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rulemaking prior to the adoption of the final rules.

DEPARTMENT OF AGRICULTURE this matter. Accordingly, Department ity control procedure for all lots of prod­ Animal and Plant Health Inspection Service personnel have been working with the uct to be sold to household consumers in National Bureau of Standards, and the packages with labels bearing net weight [ 9 CFR Parts 317, 381 ] Food and Drug Administration, as well statements placed on the packages at the MEAT PRODUCTS AND POULTRY as agencies within the Department, in producing establishment. In keeping with PRODUCTS an effort to find an acceptable solution. the establishment’s responsibility under In the recent case of The Rath Pack­ the Acts, samples o f'a ll lots of such Net Weight Labeling ing-Company v. M. H. Becker, et al., product would be examined for compli­ Notice is hereby given in accordahce the U.S. District Court for the Central ance by the establishment employees. with the administrative procedure pro­ District of California, held that the State The inspector would monitor the system visions in 5 U.S.C. 553, that pursuant to of California and its political subdivi­ for effectiveness, including making lot the authority contained in the Federal sions are precluded by the Federal Meat inspections of the products and deter­ Meat Inspection Act, as amended (21 Inspection Act (section 408, 21 U.S.C. mining whether they comply with the U.S.C. 601 et séq.), and in the Poultry 678) from imposing “different” State net regulations on the basis of the pro­ Products Inspection Act, as amended (21 weight labeling requirements on federally cedures prescribed in the proposal. U.S.C. 451 et seq.), the Animal and Plant inspected meat products, and that pro­ The proposed lot inspection procedures Health Inspection Service proposes to visions of the Act regarding mislabeling are designed to determine compliance of amend Part 317 of the Federal meat in­ or misbranding are applicable to such specific lots of product both at the official spection regulations (9 CFR Part 317) products at an official plant and at any establishments and other distribution and the poultry products inspection reg­ level of distribution including the retail points. The lot would be considered as ulations (9 CFR Part 381) to provide store. However, the court held that meeting the label weight if the average uniform labeling requirements and pre­ § 317.2(h) (2) of the Federal meat in­ net weight of the sample units repre­ scribe uniform procedures for determin­ spection regulations (9 CFR 317.2(h) senting the lot meets the label weight at ing compliance with label statements of (2 )) concerning net weight labeling is the official establishment and complies net contents of containers of meat prod­ void for vagueness; and that no “rea­ with a sample allowance table at other ucts or poultry products at the originatr sonable variations” with respect to net distribution points, and in each case ing federally inspected establishments as weight labeling had been promulgated by there are no unreasonable shortages in well as at destination. the Secretary under the Act (see section individual sample units. To attain a high Statement of considerations: Prior to 1 (n) (5), 21 U.S.C. 601 (n) (5 )). degree of confidence that his products enactment of the Wholesome Meat Act It is necessary, therefore, that an will be in compliance at all distribution in 1967 and the Wholesome Poultry Prod­ amendment to the present regulations be levels, a packer must average more prod­ ucts Act in 1968, USDA had very limited adopted as quickly as possible in order uct per container than the labeled responsibility for taking action against to correct the noted deficiencies in the weight. The exact overage would vary misbranded and adulterated meat prod­ regulations. However, inter-agency work among products, container sizes, and ucts and poultry products after they left toward a uniform net weight procedure packers, and depend to a large extent an official establishment. covering all agricultural commodities upon the packer’s ability to limit the net These Acts, however, extended the De­ will continue, and any provisions weight variability. Application of these partment’s authority over federally in­ adopted in this rulemaking proceeding procedures outside the producing estab­ spected products after they leave the of­ would be amended, if necessary and ap­ lishment, e.g. at the retail level, would ficial establishments. propriate, to conform to any uniform give assurance that the consumer mak­ ing continued purchases of a particular Weights and Measures officials of most procedure ultimately promulgated. The proposal would prescribe varia­ product would receive on the average States and municipalities are generally more than the labeled net weight even authorized to take action against food tions of products from net weight label statements which would be considered though an occasional package may be products in their States or municipalities slightly low. which fail to meet the labeled statement reasonable when determined by the pro­ cedures prescribed in this proposal. The Immediate containers of bulk ship­ of net contents. Their authority, how­ ments of unlabeled product intended for ever, is limited when federally inspected States and local governmental agencies would have concurrent jurisdiction pur­ further processing or packaging or for meat products or poultry products are retail sale at which time a net weight involved. The States are precluded from suant to section 408 of the Federal Meat Inspection Act and section 23 of the statement is applied, and shipping con­ imposing additional or different Require­ tainers holding small random weight ments than those made under the Fed­ Poultry Products Inspection Act to en­ force these provisions. packages for sale at retail intact, whose eral Méat Inspection Act, as amended, net weights would be applied at the retail The undefined phrase “reasonable var­ or the Poultry Products Inspection Act, outlet, would not need to be covered by iations caused by gain or loss of mois­ as amended, with respect to marking or an approved plant quality control pro­ ture” would be removed from the regula­ labeling of the quantity of contents of gram. I f the label on such immediate or containers of federally inspected prod­ tions. It would be the sole responsibility shipping container bears a statement of ucts. of the official establishment to so pack­ net weight, the official establishment age and market its products that the cor­ The Department had been aware that would be responsible for assuring that rect quantity of contents is maintained its meat and poultry inspection regula­ the net weight statement is accurate at throughout their distribution. tions concerning net content procedures all points as determined by the procedure needed revision and clarification. Ac­ Heretofore, the inspector checked sev­ outlined in the proposal. tions against product by various States eral finished lots per week for com­ One of the most difficult of all prod­ and municipalities, and industry com­ pliance at official establishments. This ucts to control with respect to weight plaints of lack of uniformity of interpre­ proposal would require official establish­ during the course of distribution has tation, have focused our attention on ments to have an acceptable plant qual­ been ice packed poultry. Many factors

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 PROPOSED RULES 33309 affect the total weight of a shipping con­ aging material), weighed to the nearest system which must receive prior approval tainer (e.g. type of container, length one-eighth ounce or less, of the individ­ of the Administrator. As a minimum, the of since packed, and condition of ual consumer package in the shipping application for approval of the system poultry at time of slaughter). Since the container. The above-specified state­ shall include a written description of the consumer pays by weight applied at the ments may be added to Program-ap­ sampling procedures including the num­ retail market, labeling of immediate proved shipping container labels upon ber of sample units to be drawn at any containers for bulk shipments of ice approval by the inspector in charge. one time, the frequency of sampling, the packed poultry by count at official es­ (ii) The statement of net quantity of minimum number of sample units upon tablishments would serve as an accurate contents shall appear, except as other­ which determination of compliance statement of their contents without cre­ wise permitted under this paragraph would be based, and limits for individual ating an adverse effect on consumer pro­ (h ), on the principal display panel of sample units' sample groups, and aver­ tection. This type of labeling would be all containers to be sold at retail intact, ages of all sample units representing a limited to poultry or poultry products in* conspicuous and easily legible bold­ production run which it exceeded would within specified weight ranges. face print or type, in distinct contrast to result in retention of product. The limits Many of the same factors affect un­ other matter on the container, and shall for individual sample units may not ex­ labeled meat product shipped in labeled be declared in accordance with the pro­ ceed those defined in Table II of § 317.18 immediate containers in bulk for fur­ visions of this paragraph (h ). and the average of all sample units must ther processing or packaging, or for sale (2) The statement as it is shown on equal at least the labeled net weight of at retail at which time a net weight a label shall not be false or misleading the immediate container. The methods statement is applied. Therefore, under and shall express an accurate statement of establishing tare weights must be de­ the proposal such immediate containers of the quantity of contents of the con­ scribed if they are used. Testing proce­ could also be labeled by count. This type tainer, exclusive of wrappers and pack­ dures employed to check the accuracy of of labeling would be limited to meat aging substances; Provided however, filling equipment and scales shall be de­ products within specified weight ranges. That variations from the net weight scribed, and Shewhart control charts or The method of determining the tare stated on the label, as defined in § 317.18, other systematic records must be main­ weight at retail would be defined, and are hereby found to be reasonable and tained of all determinations and correc­ the products to which a wet or dry tare are allowable. tive actions, and must be made available is applicable would be identified. * * * * * to the Program employee. Acceptance is It is proposed to amend Part 317 of based on the ability of the system to (4) Except as provided in § 317.7 or in provide the controls and information the meat inspection regulations as set paragraph (h) (1) of this section, the forth below. necessary to give a high degree of as­ statement shall be expressed in terms of surance that the product will meet the 1. Section 317.2(h) would be amendednet avoirdupois weight or liquid measure. by: Revising subparagraphs (1) and ♦ * * labeling claims of net weight when deter­ (2); Revising the first sentence in sub- mined by the procedures prescribed in (5) * * *. Paragraph (h) (9) of this § 317.18 of this subchapter; that varia­ paragraph (4 ); Adding one sentence to section permits certain exceptions from the end of subparagraph (5)?; Revising tions within packages will remain the provisions of this subparagraph (5) within the limits prescribed in § 317.18: subdivision (ii) of subparagraph (9>; for small random weight packages, and Revising subparagraph (11); Revising and that product found out of compli­ paragraph (h) (12) of this section per­ ance will be held for proper disposition subparagraph (13); Adding a new1 sub- mits certain exceptions from the provi­ paragraph (14), to read as follows: in accordance with the regulations in sions of this subparagraph (5) for multi­ this subchapter; and that the system will § 317.2 Labels: definition; required fea­ unit packages. permit proper monitoring for effective­ tures. ***** ness by plant personnel and Program * * * * * (9) * * * inspectors. (h) Cl) (i) The label shall bear a state­ (ii) Labels for the random weight Approval of a system under this sub- ment of the quantity of contents in packages exempt from the requirement paragraph (14) does not relieve the op­ terms of net weight or measure as pro­ for a net weight statement under para­ erator of the official establishment from vided in paragraph (h) (4) of this sec­ graph (h) (1) of this section shall also complying with the requirements of tion. However, immediate containers of be exempt from the type size, dual dec­ § 317.18 of this subchapter. However, bulk shipments of unlabeled product in­ laration and placement requirements of such a system is not required with re­ tended for further preparation or pack­ this paragraph (h ). spect to immediate containers of bulk aging, or for, retail sale at which time ***** shipments of unlabeled products in­ a net weight statement is applied, may.be (11) For the purpose of this section, a tended for further preparation or pack­ marked with the number of units of random weight package is one which is aging or for retail sale at which time a product in lieu of the net weight of the one of a lot, shipment, or delivery of net weight statement is applied and ship­ total contents of such containers: Pro­ packages of the same product with vary­ ping containers holding small random vided, That the maximum weight range ing weights and which does not resemble weight packages for sale at retail intact, of the units in any such container is not a package having an expected standard whose weights would be applied at the greater than 2 pounds and the weight net weight. retail outlet. If the label on such immedi­ ate or shipping container bears a state­ range of the units within each container * * * * * is also marked on each container. Fur­ ment of net weight, the official establish­ ther, random weight packages for sale (13) Shingle-packed sliced bacon car­ ment shall be responsible for assuring at retail intact need not bear a statement tons containing product weighing other that the net weight statement as de­ of the net weight: Provided, That such than 8 ounces, 1 pound, or 2 pounds shall termined by the procedure prescribed in packages- are “ small packages” within have the statement of the net weight § 317.18 is accurate at all points. The in­ the meaning of section l(n ) (5) of the shown with the same prominence as the spector shall monitor the plant’s system Act; And Provided, That the shipping most conspicuous feature on the label for proper application and effectiveness container bears a statement “Net weight and printed in a color of ink contrasting to determine whether it is resulting in to be marked on packages prior to dis­ sharply with the background. labeling which meets the requirements of play and sale” ; And provided further, ***** this paragraph and § 317.18, including That the total net weight of the contents (14) To provide maximum assurance conducting such samplings and weigh­ of the shipping container is marked on that product in immediate containers ings of products as are necessary to en­ such container; And provided further, bearing net weight statements conforms able him to determine that the products That the shipping container bears a with the statement of net weight on the prepared at the official establishment are statement “ Tare weight of consumer labels of the product, the operator of the not misbranded. Plant systems which do package” and in close proximity thereto, official establishment packaging the not result in the labeling of products in the actual tare weight' (weight of pack­ product shall install a quality control accordance with this paragraph must be

FEDERAL REGISTER, VOL. 38, NO. 231— MO N D AY, DECEMBER 3, 1973 33310 PROPOSED RULES

revised to conform to Program standards. and allowing them to absorb liquid. The and dividing by the number of packages 2. A new § 317.18 would be added totare weight so determined may be printed in the sample. read as follows: on the immediate container or shipping (v) With respect to product at the § 317.18 Quantity o f contents labeling; carton as provided for in § 317.2(h). producing establishment, if the sample reasonable variations when deter­ When the net weight is determined at ¡average is less than the labeled net mined by prescribed procedures. other than the producing establishment, weight, reject the lot represented by the the tare weight of packages having an sample. (a) The Act requires that labels on im­ expected standard net weight, e.g. 1 (vi) /With respect to product at the mediate containers of products show an pound, shall be determined by opening accurate statement of the quantity of producing establishment, if the sample and emptying three containers, wiping average equals at least the labeled net contents in terms of weight, measure or the surfaces of all packaging material to numerical count, subject to reasonable weight, compare the largest minus vari­ remove clinging pieces of product and ation of any package with the limits de­ variations, small package exemptions moisture, weighing the cleaned packag­ established by regulations under the Act. fined in Table I I of this paragraph, and ing material, and dividing the total if the variation is less than that in the (b) t l) This paragraph prescribes weight of the two heaviest containers by variations of products from net weight table, accept the lot represented by the two. At any location, the net weight of sample; and if the variation is greater label statements, which are found rea­ products which are packed in random sonable when determined by the pre­ than that in the table, reject the lot. weight packages shall be the gross weight (viii) With respect to product at a lo­ scribed procedures, including defined of the individual immediate container sampling plans. Variations determined cation other than the producing estab­ minus the tare weight printed on the lishment, if the sample average is less by such procedures are to be used at the immediate container, if any; otherwise, official establishment; by the inspector than the labeled net weight minus the it shall be the gross weight of each im­ sample allowance prescribed in Table IH for monitoring all products at the pro­ mediate container minus the packaging ducing establishment; and for all prod­ of this paragraph, reject the lot repre­ material cleaned as described in this sub- sented by the sample. ucts outside the offiicial establishment. paragraph. At any location, the net (2) The following procedures shall be (viii) Wth respect to product at a lo­ weight of all products packed with media cation other than the producing estab­ used: such as brine, water, ice, agar, etc., which (i) Select the group to which the prod­ are essentially nonnutritive, shall be the lishment, if the sample average equals uct belongs as defined in Table I. weight of the product after removing at least the labeled net weight minus T able I the product from the container, remov­ the sample allowance prescribed in Table ing loose ice which may be present, and H I of this paragraph, compare the larg­ Group definitions for immediate containers draining the product for 2 minutes on a est minus variation of any package with Of-—" No. 8 standard mesh screen 8 inches in the limits defined in Table n of this diameter for product of less than 3 Homogeneous prod­ paragraph, and if the variation is less ucts that are fluid All other products pounds, and on a No. 8 standard mesh when filled screen 12 inches in diameter for product than that in the table, accept the lot which weighs 3 pounds or more. represented by the sample; and if the Group 1-'- Less than 3 o z ..._____ Less than 3 oz. Group 2 -; 3 to 16 oz___,______(iv) Calculate the average net weight variation is greater than that in the Group 3 .; Over 16 oz______3 to 7 oz. by totaling all net weights in the sample table, reject the lot. Group 4 - - .- .______Over 7 to 48 oz. Group 5-----______Over 48 to 160 oz. T able I I —L imits fob I mmediate Containebs fob Gboups 1 T hrough 6 1 Group 6-.™ -.______- Over 160 oz.

Group 1 Group 2 Group 3 Group 4 (ii) Randomly select 10 immediate Group 5 Group 6 containers from any lo t1 containing 250 10 percent of label 4.15 gm ...... 8.31 gm ...... 20.77 gm ...... (2) packages or less of product in Group 1„ weight. 0.15 òz...... 0.29 òz____._____. . . 0.73 oz___ . . . 1.47 o z ...... 8 (2) 2, 3,4 or 5, or from any size lot of product fâa oz...... % 2 o z ...... 1!%2 OZ______1 (2) H e oz...... Ho oz...... ■ (2) in Group 6. Select 30 packages from lots Ho oz...... H E (2) (other than Group 6) containing more H oz ■ (2) than 250 packages. These randomly se­ (8) ------n s (2) 0.01 lbs...... 0.02 l b s _____ ... 0.09 lbs...... lected packages constitute the sample for ir (2) the purposes of this section. 1 Use the limits recorded in terms of calibrations of the scale being used. E.g.—If the scale is in 16tts, use limits in (iii) Determine the net weight of each 16ths; if in grams, use gram limits. Do not convert. w package in the sample. The net weight of * The Ihnit for Group 6 shall be 5 percent of the labeled net weight with a maximum allowance of 3 pounds. * The lim it is the labeled net weight when the sensitivity of the scales being used does not permit calibrations as all products packed without packing precise as those recorded above. media, of products packed in nutritive T able III.—Sample A llowance fob N et Weight 3. Section 381.121 would be amended packing media, and of products which A vebages (at otheb than pbodttction point) lose juices during the course of normal by: Revising paragraph (a); Revising subparagraph (5) of paragraph (c) ; Re­ marketing procedures shall be the gross For sample size of— weight of the immediate container and vising subparagraph (6) of paragraph its contents minus the tare weight. The 10 30 Group (c) ; Adding a new subparagraph (9) to tare weight shall be determined at the paragraph (c) ; and Adding a new para­ official establishment packaging the 2 percent of label 1 percent of label 1 graph (d) to read as follows: weight. weight. product by averaging the weight of a 0.03 oz___ __ 0.02 oz. . . . __ . 2 § 381.121 Quantity of contents. representative number of dry containers, 0.05 o z ...... 3 0.13 oz______. . . 0.07 oz______4 (a) The label shall bear a statement provided that if a wet product is packed 5 in a container which absorbs moisture, 2 percent of label weight.. 6 of the quantity of contents in terms of the tare weight shall be determined by net weight or measure as provided in averaging .the weight of a representative paragraph (a) (5) of this section. H o w ­ (c) Product failing to meet the provi­ever, immediate containers of bulk ship­ number of containers and packaging ma­ sions of this section shall be retained at terials after immersing them in water ments of unlabeled poultry product in­ official establishments, and is subject to tended for further processing or pack­ detention elsewhere, for disposition in aging, or for retail sale at which time 1A “lot” for purposes of this section shall accordance with § 318.2 or 329.1 of this a net weight statement is applied, may be one type and style of product, produced subchapter. be marked with the number of units of by one establishment and bearing identical Further, the poultry products inspec­ poultry product in lieu of the net weight labels and available for inspection at one tion regulatiohs in Part 381 would be of the total contents of such containers: place at one time. amended as set forth below. Provided, That the maximum weight

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 PROPOSED RULES 33311 range of the units in any such container decimal fractions of the pound in lieu of if they are used. Testing procedures em­ ployed to check the accuracy of filling is not greater than 2 pounds for whole ounces. Paragraph (c) (8) of this section turkeys nor greater than 1 pound for permits certain exceptions from the pro­ equipment and scales shall be described, any other pbultry product and the weight visions of this subparagraph (5) for and Shewhart control charts or other range of the units within each container multiunit packages, and paragraph systematic records must be maintained is also marked on each container. Fur­ (c) (9) of this section permits certain of all determinations and corrective ac­ ther, random weight packages for sale at exceptions from the provisions of this tions, and must be made available to the retail intact need not bear a statement subparagraph (5) for small random Inspection Service employee. Acceptance of the net weight: Provided, That such weight packages. is based on the ability of the system to packages are “small packages” within (6) The statement as it is shown on aprovide the controls and information the meaning of section 4 (h )(5 ) of the label shall not be false or misleading and necessary to give a high degree of as­ Act; And provided, That the shipping shall express an accurate statement of surance that the product will meet the container bears a statement “Net weight the quantity of contents of the container, labeling claims of net weight when deter­ to be marked on packages prior to dis­ exclusive of wrappers and packaging sub­ mined by the procedures prescribed in play and sale” ; And provided further, stances; Provicled however, That vari­ § 381.121a; that reasonable variations That the total net weight of the con­ ations from the net weight stated on the within packages will remain within the tents of the shipping container is marked label, as defined in paragraph (d) of this limits prescribed in § 381.121a; and that on such container; And provided further, section are hereby found to be reason­ product found out of compliance will be That the shipping container bears a able and are allowable. The statement held for proper disposition in accordance statement “Tare weight of consumer shall not include any term qualifying a with the regulations in this Part; and package” and in close proximity thereto, unit of weight, measure or count such as that the system will permit proper moni­ the actual tare weight (weight of pack­ "jumbo quart,” “full gallon,” “ giant toring for effectiveness by plant per­ aging material), weighted to the nearest quart,” “ when packed,” “minimum” or sonnel and Inspection Service inspectors. one-eighth ounce or less, of the individu­ words of similar import, except as pro­ Approval of a system under this para­ al consumer package in the shipping vided in paragraph (b) of this section. graph (d) does not relieve the operator container. The above-specified state­ (9) The following exemptions from of the official establishment from com­ ments may be added to Inspection Serv­ the requirements contained in this para­ plying with the requirements of ice approved shipping container labels graph (c) are hereby established: § 381.121a. However, such a system is not upon approval by the inspector in charge. (i) Individually wrapped and labeled required with respect to immediate con­ packages of less than %-ounce net weight # * * * ■ * tainers of bulk shipments of unlabeled which are in a shipping container, need products intended for further processing (c) * * * not bear a statement of net quantity of or packaging or for retail sale at which (5) The terms “net weight” or “netcontents as specified in this paragraph time a net weight statement is applied, wt.” shall be used when stating the net (c) when the statement of net quantity and shipping containers holding small quantity of contents in terms of weight of contents on the shipping container random weight packages for sale at re­ and the terms “net contents” or “ con­ meets the requirements of this para­ tail intact, whose weights would be ap­ tents” when stating the net quantity of graph (c ); plied at the retail outlet. If the label on contents in terms of fluid measure. Ex­ (ii) Labels for the random weight such immediate or shipping container cept as provided in § 381.128 or in para­ packages exempt from the requirement bears a statement of net weight, the of­ graph (a) of this section, the statement for a net weight statement under para­ ficial estblishment shall be responsible shall be expressed in terms o f net avoir­ graph (a) of this section shall also be for assuring that the net weight state­ dupois weight or liquid measure. Where exempt from the type size, dual declara­ ment as determined by the procedure no general consumer usage to the con­ tion and placement requirements of this prescribed in § 381,121a is accurate at trary exists, the statement shall be in paragraph (c). For the purpose of this all points. The inspector shall monitor terms of liquid measure, if the product section, a random weight package is one the plant’s system for proper application is liquid, or in terms of weight if the which is one of a lot, shipment, or deliv­ and effectiveness to determine whether product is solid, semisolid, viscous or a ery of packages of the same product it is resulting in labeling which meets the mixture of solid and liquid. On packages with varying weights and with no fixed requirements of this paragraph and containing less than 1 pound or 1 pint, weight pattern. § 381.121(a), including conducting such the statement shall be expressed in (d) To provide maximum assurancesamplings and weighings of poultry ounces or fractions of a pint, respectively. products as are necessary to enable him On packages containing 1 pound or 1 that poultry product in immediate con­ to determine that the poultry products pint or more, anti less than 4 pounds or tainers bearing net weight statements conforms with the statement of net prepared at the official establishment 1 gallon, the statement shall be ex­ are not misbranded. Plant systems pressed as a dual declaration both in weight on the labels of the product, the operator of the official establishment which do not result in the labeling of ounces and (immediately thereafter in packaging the product shall install a poultry products in accordance with this parenthesis) in pounds, with any re­ quality control system which must re ­ mainder in terms of ounces or common paragraph must be revised to conform ceive prior approval of the Adminis­ or decimal fraction of the pound, or in to Inspection Service standards., trator. As a minimum, the application the case of liquid measure, in the largest 4. A new § 381.121a would be added to for approval of the system shall include whole units with any remainder in terms a written descriptioh of the sampling read as follows: of fluid ounces or common or decimal procedures including the number of fraction of the pint or quart. For ex­ § 381.121a Quantity of contents label­ samples drawn at any one time, the fre­ ing; reasonable variations when de­ ample, a declaration of three-fourths quency of sampling, the minimum num­ termined by prescribed procedures. pound avoirdupois weight shall be ex­ ber of samples upon which determina­ pressed as “Net Wt. 12 oz.” ; a declara­ (a) The Act requires that labels on tion of iy2 pounds avoirdupois' weight tion of compliance would be based, and immediate containers of products show limits for individual sample units, shall be expressed as “ Net Wt. 24 oz. an accurate statement of the quantity sample groups, and averages of all (1 lb. 8 oz.),” “Net Wt. 24 oz. (1 % lb.),” of the product in terms of weight, meas­ samples representing a production run or “Net Wt. 24 oz. (1.5 lbs.) .” However, ure or numerical count, subject to rea­ which if exceeded would result in reten­ on random weight packages the state­ sonable variations and exemptions as to tion of product. The limits for individual ment shall be expressed in terms of small packages or articles not in pack­ sample units may not exceed those de­ pounds and decimal fractions of the ages or other containers established by fined in Table n of § 381.121a and the pound carried out to not more than two regulations under the Act. average of all sample units must equal (b ) (1) This paragraph prescribes var­ decimal places, for packages over 1 at least the labeled net weight of the pound and for packages which do not ex­ immediate container. The method of es­ iations of products from net weight label ceed 1 pound the statement may be in tablishing tare weights must be described statements, which are found reasonable

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 33312 PROPOSED RULES

when determined by the prescribed com­ ing the total weight of the two heaviest (vi) With respfect to product at the pliance procedures, including defined containers by two. The net weight of producing establishment, if the sample sampling plans. Variations determined products which are packed in random average equals at least the labeled net by such procedures are to be used at the weight packages shall be the gross weight weight, compare the largest minus varia­ official establishment for all products of the individual immediate container tion of any package with the limits de­ other than those covered by the plant minus the tare weight printed on the im­ fined in Table II of this paragraph, and quality control system prescribed under mediate container, if any; otherwise, it if the variation is less than that in the § 381.121(d) ; by the inspector for moni­ shall be the gross weight of each imme­ table, accept the lot represented by the toring all products at the producing es­ diate container minus the packaging ma­ sample; and if the variation is greater tablishment; and for all products out­ terial cleaned as described in this sub- than that in the table, reject the lot. side the official establishment. paragraph. The net weight of all prod­ (vii) With respect to product at a loca­ (2) The following procedures shall be ucts packed with media such as brine, tion other than the producing establish­ used: water, ice, agar, etc., which are essential­ ment, if the sample average is less than (i) Select the group to which the ly nonnutritive, shall be the weight of the labeled net weight minus the sample product belongs as defined in Table I. the product after removing the product allowance prescribed in Table III of this from the container, removing loose ice T able I . paragraph, reject the lot represented by which may be present, and draining the the sample. product for 2 minutes on a No. 8 stand­ Group definitions for immediate containers (viii) With respect to product at a lo­ of— ard mesh screen 8 inches in diameter for cation other than the producing estab­ product of less than 3 pounds, and on a lishment, if the sample average equals at Homogeneous prod­ No. 8 standard mesh screen 12 inches in ucts that are fluid A ll other products least the labeled net weight minus the when filled diameter for product which weighs 3 pounds or more. sample allowance prescribed in Table m Group l._ Less than 3 oz______Less than 3 oz. (iv) Calculate the average net weight of this paragraph, compare the largest 'Group 2.. 3 to 16 oz______. by totaling all net weights in the sample Group 3— Over 16 oz____. ______3to7oz. minus variation of any package with the Group 4..;.___;._.-______,__ _ Over 7 to 48 oz. and dividing by the number of packages limits defined in Table I I of this para­ Group 5------.------Over 48 to 160 oz. in the sample. Group 6____...... Over 160 oz. graph, and if the variation is less than (v) With respect to product at the that in the table, accept the lot repre­ (ii) Randomly select 10 immediate producing establishment, if the sample average is less than the labeled net sented by the sample; and if the varia­ containers from any lo t1 containing 250 tion is greater than that in the table, re­ packages or less of poultry product in weight, reject the lot represented by the ject the lot. Group 1, 2, 3, 4 or 5, or from any size lot sample. of product in Group 6. Select 30 pack­ T able I I—L imits fob I mmediate Containers fob Gboufs 1 through 6 1 ages from lots (other than Group 6) con­ taining more than 250 packages. These Group 1 Group 2 Group 3 Group 4 Group 5 Group 6 randomly selected packages constitute the sample for the purposes of this sec­ ... 8.31 gm ...... 20.77 gm ...... 41.53gm ______(?) tion. weight. 0.15 oz______... 0.29oz______... 0.73 o z ..______1.47 oz...... i (?) OZ______... 9^2 o z ...... lifé ï oz______m <*> (iii) Determine the net weight of each M b oz------... Mo oz...... >Mb oz...... 1Mb oz...... « package in the sample. The net weight of Mo o z ...... M o o z ...... Mo oz...... IMo oz______0) K o z ....-----...... fé oz...... — % o z ...... 1% oz...... « all poultry products packed without «...... — K oz...... f i oz...... I K oz...... packing media, of products packed in nu­ 0.01 lbs...... 0.02 lbs...... Ò.04 lb s ...... 0.09 lbs...... p) tritive packing media, and of poultry products which lose juices during the 1 Use the limits recorded in terms of calibrations of the scale being used. E.g.—If the soale is in 16ths, use limits in course of normal marketing procedures 16ths; if in grams, use gram limits. Do not convert. 2 The limit for Group 6 shall be 5 percent of the labeled net weight with a maximum allowance of 3 pounds. shall be the gross weight of the immedi­ * The limit is the labeled net weight when the sensitivity of the scales being used does not permit calibrations as ate container and its contents minus the precise as those recorded above. tare weight. The tare weight shall be de­ T able III.— Sample A llowance fob N et Weight spection Program, Animal and Plant termined at the official establishment A verages (at other than production point) Health Inspection Service, U.S. Depart­ packaging the product by averaging the ment of Agriculture, Washington, D.C. weight of a representative number of dry For sample size of— In 20250, so that arrangements may be containers, provided that if a wet prod­ group 30 made for such views to be presented prior uct is packed in a container which ab­ to the date specified in the preceding sorbs moisture, the tare weight shall be paragraph. A record will be made of all determined by averaging the weight of a 2 percent oflabel weight. 1 percent of label weight. views, orally presented. representative number of containers and 0.03 oz— ______0.02 oz______All written submissions and records of packaging materials after . immersing 0.05 oz...... 0.03 oz...... 0.13 oz______— 0.07 oz..______oral views made pursuant to this notice them in water and allowing them to ab­ 0.26 oz______0.15 oz______will be made available for public inspec­ sorb liquid. The tare weight so deter­ 2 percent of label weight______tion in the Office of the Hearing Clerk mined may be printed on the immediate during regular hours , of business, unless container or shipping carton as provided (c) Product failing to meet the provi­the person makes the submission to the for in § 381.121. When the net weight is sions of this section shall be retained at Staff identified in the preceding para­ determined at other than the producing official establishments and is subject to graph and requests that it be held con­ establishment, the tare weight of pack­ detention elsewhere, for disposition in ac­ fidential. A determination will be made ages having an expected standard net cordance with §| 381.145 or 381.210. whether a proper showing in support of weight, e.g. 1 pound, shall be determined the request has been made on grounds by opening and emptying three contain­ Any person wishing to submit written data, views, or arguments concerning the that its disclosure could adversely affect ers, wiping the surfaces of all packaging such person by disclosing information in material to remove clinging pieces of proposed amendments may do so by filing them in duplicate with the Hearing Clerk, the nature of trade secrets or commercial product and moisture, weighing the or financial information obtained from cleaned packaging material, and divid- U.S. Department of Agriculture, Wash­ ington, D.C. 20250, by April 5, 1974. any person and privileged or confidential. Any person desiring opportunity for I f it is determined that a proper showing 1A “lot” for purposes of this section shall oral presentation of views should address has been made in support of the request, be one type and style of product, produced by one establishment and bearing identical such requests to the Systems Develop­ the material will be held confidential; labels and available for inspection at one ment and Sanitation Staff, Scientific and otherwise, notice will be given of denial place at one time. Technical Services, Meat and Poultry In- of such request and an opportunity

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 PROPOSED RULES 33313

deplete their inventories. These manu­ afforded for withdrawal of the subm is­ which a major component, as listed in facturers asserted that they anticipated sion. Requests for confidential treatm ent § 278.213-1 (a) (1) (now § 1020.30(a) (1 )), financial losses from inventories of un­ wiH t>e held con fiden tial (7 CFR 1.27 ( c ) ). is manufactured prior to the effective certified equipment, since such equip­ C o m m e n t s on the proposal should bear date of §§ 1020.30, 1020.31, and 1020.32, a reference to the date and page number but assembled into a diagnostic x-ray ment could not be sold prior to the effec­ tive date or modified to meet the stand­ of this issue of the F e d e r a l R e g i s t e r . system after that date. The proposed § 278.102 would have required that com­ ard, except at great expense. They stated Done at Washington, D.C., on Novem­ ponents which are sold to a purchaser that these losses would lead to an in­ ber 26,1973. and assembled into a diagnostic x-ray crease in the cost of their products to G. H. W ise, system after the effective date of the the medical community. Some manufac­ Acting Administrator, Animal standard be only those which have been turers objected that if the proposed rule and Plant Health Inspection certified by the component manufacturer was adopted, the applicability of the Service. in accordance with § 1020.30(c). This standard would be determined by the [PR Doc.73-26356 Filed ll-30-73;8:45 am ] section also addressed the assembly of date on which the dealer sold the x-ray components into x-ray systems contain­ unit. Several manufacturers requested ing components, all of which have been clarification of the date of sale referred DEPARTMENT OF HEALTH, certified by the component manu­ to in paragraphs (a) and (b) of the pro­ EDUCATION, AND WELFARE facturer (s) pursuant to § 1020.30(c) and posed § 278.102, stating that this could be interpreted either as the date an order Food and Drug Administration would not permit the assembler to file a report of noncompatibility, as defined in is placed by the purchaser, or the date [ 2 1 CFR Part 1000 ] § 1020.30(d) (2), for such acts of assem­ the purchaser takes possession of the CONTROL OF ELECTRONIC PRODUCT bly. equipment. RADIATION The proposed § 278.103 Applicability While objecting to the policy as pro­ of performance standards for diagnostic posed, three manufacturers specifically Assembly and Reassembly of Diagnostic stated that they felt that some limit X-ray Systems x-ray systems to rebuilt or reassembled x-ray equipment, as published in the should be placed on the period of time On February 28, 1973, the Commis­ F e d e r a l R e g i s t e r on February 28, 1973, allowed for the sale of uncertified com­ sioner of Food and Drugs published no­ addressed the applicability of §§ 1020.30, ponents after the effective date of the tices of proposed rulemaking in the 1020.31, and 1020.32 to diagnostic x-ray standard. Eight manufacturers sug­ F ed e r a l R e g i s t e r (38 FR 5349) to amend equipment originally assembled prior to gested a delay in the implementation of Part 278, Subpart B—Definitions, Inter­ the effective date of those sections, but the policy for periods varying from six pretations, and Statements of General subsequently rebuilt or reassembled after months to one year after August 15,1973, Policy by adding two new sections, that date. Section 278.103 would have in order to allow the sale of present in­ §§278.102 and 278.103 (21 CFR 278.102 considered the rebuilding, refurbishing, ventories. Of the four State and local and 278.103). These proposals expressed or reassembly of x-ray equipment, except radiation control agencies submitting the Food and Drug Administration’s pol­ for the reassembly of a system in a new comments, two agencies expressed dis­ icies with respect to the assembly and location without an associated change of agreement with the proposed policy for remanufacturing (rebuilding and reas­ ownership, to be manufacturing within similar reasons to those stated by manu­ sembly) of diagnostic x-ray equipment. the meaning of the Radiation Control for facturers and two suggested modifica­ Interested persons were given 60 days, Health and Safety Act, and would have tions for the purpose of clarification. No after the date of publication in the F e d ­ required that such equipment be rebuilt, comments were received regarding the eral R e g i s t e r , to file written comments refurbished or reassembled so that it compatibility requirement of § 278.102 regarding these proposals. The Confer­ complies with §§ 1020.30, 1020.31, and (c). ence of Radiation Control Program Di­ 1020.32. Comments on proposed § 278.103. A rectors requested that State and local It was intended that the effective date total of 169 letters commenting on pro­ radiation control agencies be given the of the final order on proposed §§ 278.102 posed § 278.103 were received. These were opportunity to comment on the proposals and 278.103, would be August 15, 1973, from physicians, State or local physi­ until May 18, 1973. This request was in­ to coincide with the effective date of cians’ organizations, State or local radia­ formally granted since additional time the performance standard for diagnostic tion control agencies, manufacturers of was needed by these agencies to assess x-ray systems and their major compo­ diagnostic x-ray equipment, professional the full impact of the proposals upon nents (§§ 1020.30, 1020.31, and 1020.32). associations and others. The following their programs. However, on June 12, 1973, the Commis­ points summarize the major comments Based upon the comments received sioner of Food and Drugs published an submitted: following publication of these proposals, order in the F e d e r a l R e g i s t e r (38 FR 1. A total of 108 letters, received from the Commissioner has determined that 15444) extending the effective date of physicians and physicians’ organiza­ it is necessary to revise the policies orig­ §§ 1020.30, 1020.31, and 1020.32 to Au­ tions, stated almost unanimous opposi­ inally proposed in §§ 278.102 and 278.103, gust 1, 1974. This order also stated that tion to the proposed rule. They asserted and to publish the revised policies as a any final rule on proposed §§ 278.102 and that it is not possible or economically new proposed rule. This new proposal 278.103 would not become effective prior feasible to upgrade current equipment to combines the topics, addressed separately to the effective date of §§ 1020.30, meet the standard, and that therefore, in §§ 278.102 and 278.103, into a single 1020.31, and 1020.32. uncertified equipment requiring rebuild­ revised § 278.102 (§ 1000.16 pursuant to Comments on proposed § 278.102. ing or reassembly after the effective date the recodification of Part 278—Regula­ Fifteen letters commenting on the pro­ of the standard would have to be dis­ tions for the Administration and En­ posed § 278.102 were received.. Eleven carded, resulting in the total loss of forcement of the Radiation Control for were from manufacturers of diagnostic trade-in value. These letters frequently Health and Safety Act of 1968, as a new x-ray equipment or their associations stated a belief that the loss of trade-in Subchapter J—Radiological Health, pub­ and four from State and local radiation value of used equipment would lead to an lished in the F e d e r a l R e g i s t e r of Octo­ control agencies. Manufacturers op­ increase in the cost of x-ray diagnostic ber 15,1973 (38 FR 28623)). posed the proposed rule on the grounds services to the consumer. A number of The p r o p o s e d § 278.102 Policy on as­ that it would not allow the installation comments indicated a concern that the sembly of diagnostic x-ray equipment as of uncertified components sold to a pur­ proposed policy would seriously reduce the availability of used x-ray equipment published i n t h e F e d e r a l R e g i s t e r o n chaser after the effective date of the February 28, 1973, was intended to standard. They stated that they had as­ for use in low workload facilities, which specify the applicability of § 278.213 sumed that components produced prior cannot afford new equipment, such as Diagnostic x-ray systems and their to the effective date could be sold-and those located in rural areas, and that major components ( n o w §§ 1020.30, installed for an indefinite period of time this would result in a serious impairment 1020.31, a n d 1020.32) in situations in and as a result had not taken action to of medical care in such areas.

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 33314 PROPOSED RULES

2. Thirty-six representatives of State public interest would be best served by Section 1000.16(a) would require that and local radiation control agencies ex­ the adoption of a policy which would any x-ray component(s) listed in pressed similar objections. They were provide a more gradual mechanism for § 1020.30(a) (1), assembled after Au­ also concerned that the proposal would the upgrading of used equipment. gust 1, 1974, and prior to August 1,1979> discourage owners of x-ray equipment 3. In their comments regarding pro­ into a system which will contain one or from adding improvements to their units posed § 278.103, representatives of the more certified components upon com­ since such action might be considered medical profession stated that x-ray pletion of the assembly, be themselves “ rebuilding” and necessitate upgrading equipment has a normal useful lifetime certified. This requirement would pre­ the entire unit to meet all the require­ of 5 to 7 years in high workload facili­ vent both the installation of complete ments of the standard. Some agencies ties, such as those located in metro­ systems containing a combination o f cer­ stated that the proposal might discour­ politan area hospitals, and that the sale tified and uncertified components, and age purchasers from buying new, certi­ of x-ray units from the facilities con­ the installation of uncertified compo­ fied equipment since their old units stitutes a major source of used x-ray nents into existing systems which con­ would have little trade-in value. They equipment for use in rural areas and tain one or more certified components. It expressed concern that if they required private practice. Therefore, in order to is necessary to prohibit these practices an owner of an x-ray unit to comply assure the continued availability of since they would have a serious adverse with a State or local regulation, this equipment to such areas, a period of five effect upon those advantages offered by might be considered “ rebuilding” and years after the effective date of the certified x-ray products to the consumer place the owner in a position such that standard should be allowed in which unr and the public. The performance of many the entire unit would have to be up­ certified components may be assembled components is dependent upon other graded to meet the Federal standard. or reassembled, into systems containing components within the system. There­ Two radiation control agencies sup­ no certified components. However, after fore, the radiation protection features of ported the proposed rule. this five year period, all components as­ some certified components could be im­ 3. A number of manufacturers of sembled or reassembled into a diagnostic paired if such acts of assembly were per­ x-ray equipment asserted that the de­ x-ray system should be certified. It is mitted. Also, the purchaser of a system sign and production of certified replace­ anticipated that within 5 years most containing a mixture of certified and ment components for past models equipment in use in high workload facili­ uncertified components would find it diffi­ would require the investment of man­ ties will be certified, and therefore an cult to determine liability if the system power and resources which are currently adequate supply of used certified equip­ did not meet the performance require­ unavailable due to the fact that they are ment will be available. Manufacturers ments of the standard. Section 100.16 being devoted to designing and produc­ will aso have had adequate time to pro­ (a) would also promote the gradual up­ ing new equipment to meet the stand­ duce certified replacement cbmponents grading of existing units by requiring ard. Some manufacturers also requested for uncertified systems which remain in that once a certified component is in­ that the terms “rebuild” and “re­ use. stalled into an x-ray system, future com­ furbish” be rigorously defined. 4. During this five year period the pub­ ponents installed must also be certified. lic health will be protected since the 4. Twehty-one comments expressed Section 1000.16(b) would prohibit the Food and Drug Administration has the assembly of components listed in the opinion that some requirements authority under Part 278 (21 CFR 278), § 1020.30(a) (1), which have not been upon remanufactured equipment should Subpart F—Notification of Defects in, be adopted. A number suggested alterna­ certified pursuant to § 1020.30(c), into and Repair or Replacement of, Elec­ tive mechanisms to control the con­ .any diagnostic x-ray system after Au­ tronic Products (now Part 1003—Noti­ gust 1, 1979. Therefore, an assembler tinued sale and use of antiquated equip­ fication of Defects or Failure to Comply, would be prohibited from installing new ment, such as establishing a date of and Part 1004—Repurchase, Repairs, or or used uncertified components into a obsolescence or a separate set of require­ Replacement of Electronic Products) to new or existing system after that date. ments for used equipment less stringent require the repair, replacement or re­ than those of the standard. funding of the cost of x-ray equipment Section 1000.16(c) would consider The Commissioner of Food and Drugs manufactured after October 18, 1968, units, which are sold to a new owner and after an analysis of comments and sup­ which fails to meet the manufacturer’s reassembled in a different location, to porting evidence has concluded that: radiation safety design specifications, be remanufactured. Therefore, com­ 1. The Administration’s policies with emits radiation which creates a risk of ponents which are reassembled into such respect to the assembly of x-ray com­ injury, or fails to accomplish the in­ systems after August 1, 1979, must be ponents must assure the purchaser of tended purpose of the product. In addi­ certified. The requirements of para­ certified x-ray equipment that ih e per­ tion, x-ray units presently in use must graphs (b) and (c) would assure th at all formance is in accordance with the meet State and local radiation safety re­ new x-ray equipment installed after Au­ specifications of the standard, and that quirements. gust 1, 1979, meets the requirements of such equipment will not be downgraded The Commissioner has determined the standard. It would also establish a as a result of the installation of un­ that since this policy represents a sub­ mechanism through which existing un­ certified components. Therefore, the in­ stantial change from the originally pro­ certified systems would eventually be up­ stallation of uncertified components posed §§ 278.102 and 278.103, a new no­ graded to meet these requirements. into a diagnostic x-ray system contain­ tice of proposed rulemaking should be Section 1000.16(d), retained from the ing one or more certified components published. It is proposed to make this original proposal, would require that an should be prohibited after the effective policy effective 10 days after publica­ assembler, who installs components date of the standard. tion of a final order in the F e d e r a l R e g ­ listed in § 1020.30(a) (1) into a diagnos­ 2. Proposed § 278.103 could cause the i s t e r . The acts of assembly and re­ tic x-ray system consisting of compo­ removal from service of some useful manufacturing may be generally consid­ nents all of which are certified, assemble equipment of relatively recent manu­ ered as acts of assembly for purposes of only components of the type called for by facture, which would normally be resold administration and enforcement of the the standard in accordance with the and reassembled, since it may not be standards. Therefore, the topics ad­ manufacturer’s instructions and file a possible or economically feasible to up­ dressed in proposed §§278.102 and report as specified in § 1020.30(d) (1). grade many of these units to meet the 278.103 have been combined in the now Only certified components could be in­ Federal standard. This could lead to a proposed § 1000.16. Section 1000.16 would stalled into diagnostic x-ray systems af­ reduction in the availability of x-ray apply to both the assembly of compo­ ter August 1, 1979. Therefore, under diagnostic services in areas unable to nents listed in § 1020.30(a) (1), which § 1000.16(b) and ( c ) assemblers would afford the purchase of new equipment. have not been previously sold to a pur­ be required to file a report pursuant to Also, certified replacement components chaser, and to the reassembly of used § 1020.30 (d) (1) or (d) (2) for all acts of may not be available for current x-ray components when the act of reassembly assembly or reassembly associated with units for some time after the effective is associated with a change of owner­ the sale of components to a purchaser date of the standard. Therefore, the ship. completed after that date.

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 PROPOSED RULES 33315

The Commissioner of Food and Drugs (b) Specified components which are Room 6-86, 5600 Fishers Lane, Rockville, MD 20852, written comments (preferably published in the F e d e r a l R e g i s t e r on assembled into a diagnostic x-ray system July 31, 1973 (38 FR 20356), guidelines after August 1, 1979, shall be only those in quintuplicate) regarding this pro­ for manufacturers and assemblers of x- which have been certified pursuant to posal. Comments may be accompanied by ray components listed in § 1020.30(a) (1) § 1020.30(c) of this chapter. For ex­ a memorandum or brief in support there­ concerning early certification of these ample, after August 1,1979: of. Received comments may be seen in components and their assembly into di­ (1) An assembler who installs a com­ the above office during working hours, agnostic x-ray systems. As set forth in plete diagnostic x-ray system may not Monday through Friday. this guideline, certification by a manu­ install components which have not Dated: November 19,1973. facturer prior to August 1, 1974, will ad­ been certified by the component manu­ facturer^). A . M . S c h m i d t , vance the effective date of the perform­ Commissioner of Food and Drugs. ance standard for that certified compo­ (2) Only those components which nent or system from August 1, 1974, to have been certified by the component [FR Doc.73-25530 Filed 11-30-73:8:45 am ] thé date of certification. However, the manufacturer may be installed into an provisions of the final order for § 1000.16 existing diagnostic x-ray system whether CIVIL SERVICE COMMISSION would not become effective until after or not the system contained certified August 1,1974. components prior to the assembly. [5 CFR Part 731] Therefore, pursuant to provisions of (c) Specified components which are FEDERAL EMPLOYMENT the Public Health Service Act, as amend­ reassembled after August 1, 1979, into diagnostic x-ray systems pursuant to the Revised Basis for Disqualification and ed by the Radiation Control for Health Dismissal and Safety Act of 1968 (sections 354, 355, relocation and sale of such systems to a 356, and 358, 82 Stat. 1173-1175, 1177; purchaser, shall be only those which Notice is hereby given that under au­ 42 U.S.C. 263b-263d, 263f ) and under au­ have been certified in accordance with thority of section 3301 of title 5, United thority delegated to him (21 CFR 2.120), § 1020.30(c) of this chapter. For exam­ States Code, it is proposed to revise the Commissioner of Food and Drugs ple, after August 1,1979: § 731.20 (e) and (g) and to add § 731.202 proposes to amend subpart B of Part (1) An assembler who reassembles an to Subpart B of 5 CFR Fart 731. These 1000 by adding the following new sec­ existing diagnostic x-ray system in a new Regulations state the grounds for dis­ tion: location, following the sale of the system qualifying applicants for employment to a new owner, may only reassemble and for dismissing Federal employees as § 1000.16 Assembly and reassembly of those components into the system which not suitable for Federal employment. diagnostic x-ray components. are certified. Section 731.201(e) is revised by adding The following provisions shall apply to (2) An assembler who reassembles an the phrase “or illegal use of narcotics or the assembly and reassembly of diagnos­ existing diagnostic x-ray system in a new dangerous drugs.” This section presently tic x-ray components specified in § 1020.- location may install uncertified compo­ provides the grounds for disqualifying a 30(a) (1) of this chapter into diagnostic nents which were contained in the sys­ person for habitual use of intoxicating x-ray systems. tem prior to disassembly, provided that beverages to excess. The proposed change (a) Specified components which are the reassembly is not associated with a provides the basis for disqualification be­ assembled, after August 1, 1974, and change of ownership of the system. How­ cause of illegal use of narcotics or dan­ prior to August 1, 1979, into those x-ray ever, any new components added to the gerous drugs. This provision would be ap­ systems which will be composed, upon original system must be certified. plied in cases in which, despite counsel­ completion of the assembly, of one or (d) Specified components which are ing and rehabilitation programs, there is more components certified pursuant to certified pursuant to § 1020.30(c) of this little chance for effective rehabilitation, § 1020.30(c) of this chapter, shall be chapter shall be assembled, and a report or in cases in which the individual’s con­ only those which have themselves been filed, in accordance with § 1020.30(d) of dition would pose a threat to the in­ certified in accordance with § 1020.30(c) this chapter. For example: dividual or to other employees. of this chapter. For example, after Au­ (1) An assembler who installs a com­ Section 731.201(g) is revised by remov­ gust 1,1974: plete diagnostic x-ray system after Au­ ing the phrase “legal or other” and sub­ (1) An assembler who installs a new, gust 1, 1974, which consists of specified stituting the word “ statutory.” The complete diagnostic x-ray system may components all of which are certified, purpose of this paragraph is to exclude not assemble a system consisting of both' must assemble components of the type persons whose employment would be pre­ certified and uncertified components. required by § 1020.31 or § 1020.32 of this cluded by any statute (e.g., the nepotism (2) An assembler who installs compo­ chapter and must assemble these com­ statute, 5 U.S.C. 3110). The proposed nents into an existing diagnostic x-ray ponents in accordance with the manu­ change is intended to clarify the lan­ system, containing one or more certified facturers’ instructions. The assembler guage of this paragraph. components prior to such installation, must also file a report in accordance with Section 731.202 is added to provide a may only install components which have § 1020.30(d) (1), of this chapter and may statement of factors to be considered in been certified by the component manu­ not file a report of noncompatibility as evaluating the conduct of individuals in facturer (s) , regardless of whether or not provided for in § 1020.30(d) (2) of this relation to the grounds for disqualifica­ the certified components themselves are chapter. tion that are stated in § 731.201. The in­ replaced. (2) An assembler who installs certified tent of this proposed addition is to assure (3) An assembler who installs a group components into an existing diagnostic that, in applying any of the provisions of components into an existing diag­ x-ray system may only file a report of of § 731.201, the evaluator will consider nostic x-ray system, containing no cer­ noncompatibility if the conditions spec­ the circumstances surrounding each case tified components prior to the assembly, ified in § 1020.30(d) (2) of this chapter and the effect of the individual’s conduct may not install a combination of certified are satisfied. on the ability of the individual to per­ form the duties and responsibilities as­ and uncertified components. He may in­ (3) After August 1, 1979, all specified signed and on the ability of the agency to stall all uncertified components, or all components which are sold to a pur­ certified components, into such a system. chaser and installed into a diagnostic carry out its programs. These proposed changes are the result (4) Except as required by paragraph x-ray system must be certified. There­ of an extended study of the existing Reg­ (c) of this section, an assembler may re­ fore, an assembler must file a report pur­ suant to § 1020.30(d) (1) or (d )(2 ) of ulations in relation to court decisions of assemble a previously existing (used) recent years, trends in society and Gov­ system for resale Whether or not the sys­ this chapter upon completion of the as­ sembly of one or more of such compo­ ernment, and other factors. Generally tem is comprised of all uncertified or a speaking, the trend of court decisions in combination of certified and uncertified nents into any diagnostic x-ray system after that date. this area of concern has been to require components. However, any new compo­ the employer to show a specific rational nents added to an original system com­ Interested persons may, on or before prised of one or more certified compo­ February 1, 1974, file with the Hearing connection between an individual’s con­ nents must be cértified. Clerk, Food and Drug Administration, duct and his ability to perform the duties

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 No. 231—Pt. I---- 7 33316 PROPOSED RULES and responsibilities of his position or the (c) Intentional false statement or de­ performance by the employing agency of ability of the Federal agency to carry out ception or fraud in examination or its duties and responsibilities; its mission without a deleterious effect appointment; (c) The kind of position for which the on the efficiency of the service in general. (d) Refusal to furnish testimony as person is applying or in which the person Interested persons may submit written required b y j 5.3 of this chapter; comments or suggestions regarding these (e) Habitual use of intoxicating bev­ is employed; proposed revisions to the Bureau of Per­ erages to excess; or illegal use of nar­ (d) The nature and seriousness of the sonnel Investigations, U.S. Civil Service cotics or dangerous drugs; conduct; Commission, Washington, D.C. 20415, on (f ) Reasonable doubt as to the loyalty (e) The circumstances surrounding or before January 2, 1973. The complete of the person involved to the Govern­ the conduct; text of the regulations, including these ment of the United States ; or proposed revisions, is set out below: (g) Any statutory disqualification (f) The recency of the conduct; which makes the individual unfit for the (g) The age of the applicant or ap­ 1. Section 731.201 is amended as pointee at the time; follows: service. Section 731.202 is added as follows: (h) Causative, social or environmen­ § 731.201 Reasons for disqualification. tal conditions; and § 731.202 Factors to be considered. Subject to Subpart C of this part, the (i) The absence or presence of re­ Commission may deny an applicant ex­ In making determinations undér habilitation or efforts toward rehabili­ § 731.201, the Commission shall consider, amination, deny an eligible appointment, tation. and instruct an agency to remove an ap­ among other factors: pointee for any of the following reasons: (a ) . Whether the individual’s conduct U n i t e d S t a t e s C i v i l S e r v ­ (a) Dismissal from employment for would interfere with or prevent effective i c e C o m m i s s i o n , delinquency or misconduct; performance in the position applied for [ s e a l ! J a m e s C . S p r y , (b) Criminal, infamous, dishonest, im­ or employed in; Executive Assistant to moral, or notoriously disgraceful (b) Whether the individual’s conduct the Commissioners. conduct; would interfere with or prevent effective [FR Doc.73-25633 Filed 11-30-73;8:45 am]

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 33317 -______Notices ______

This section of the FEDERAL REGISTER contains documents other than rules or proposed rules that are applicable to the public. Notices of hearings and investigations, committee meetings, agency decisions and rulings, delegations of authority, filing of petitions and app ica ions and agency statements of organization and functions are examples of documents appearing in this section.

DEPARTMENT OF STATE The purpose of this meeting is to ex­ meeting on January 11,1974, at 9:30 a.m., amine the mission, scope, progress, and MST, Home Service Room #418, Bank Agency for International Development productivity of the Air Force Historical Electric Building, 501 W. Main, Lewis- DIRECTOR AND DEPUTY DIRECTOR, Program and make recommendations town, Montana. OFFICE OF HOUSING thereon for the consideration of the Sec- The agenda for the January meeting retary of the Air Force. will include election of board officers, Redelegation of Authority A portion of this meeting will be open board recommendations on 1974 grazing Pursuant to the authority delegated to for public attendance on December 6, applications, allotment management me by Delegation of Authority No. 88, as 1973, from TO a.m. until approximately plans, range improvement projects, plan­ amended, from the Administrator, AID, 11:30 a.m., in Room 5E069, Forrestal ning system progress, wild and free roam­ dated November 4, 1970 (35 PR 17675), Building. Among the topics on the ten-, ing horse regulations, and recent changes I hereby amend further the redelega­ tative agenda during the open portion of in BLM policies, programs, and priorities. tion of authority to the Director and the meeting are: Status of field pro­ The meeting will be open to the public. Deputy Director, Office of Housing, dated grams; Staffing; Publication; Fellow­ Time will be available for a limited num­ November 5, 1970 (35 FR 17675), as ships; and Reservist utilization. ber of brief statements by members of follows: The remainder of the meeting will per­ the public. Those wishing to make an 1. Section I. A. is revised to read, as tain to internal Historical program pol­ oral statement should inform the Ad­ follows: icies, procedures, and classified matters visory Board Chairman, Swend Holland, A. All of the authorities delegated to and will be held in closed session. prior to the meeting. Any interested per­ me by the above-mentioned Delegation of sons may file a written statement with I f additional information is desired, the Board for its consideration. Written Authority No. 88, as amended, except for contact Headquarters United States Air statements should be submitted prior to the authority to prescribe and amend Force (AF/CHO), Washington, D.C. the meeting to Swend Holland, c/o Dis­ interest rates provided in section 223(f) 20314, telephone 202-693-7373. of the Act. trict Manager, Bureau of Land Manage­ s 2. Section 2 is revised to read as S t a n l e y L. R o b e r t s , ment, Drawer 1160, Lewistown, Montana follows: Colonel, USAF, Chief, Legisla­ 59457. 2. With respect to the authorities re­ tive Division, Office of The Further information concerning this delegated herein: Judge Advocate General. meeting may be obtained from the Dis­ A. The authority to execute contracts [FR Doc.73-25473 Filed ll-30-73;8:45 am ] trict Manager. Minutes of the meeting of guaranty with U.S. investors and will be available for public inspection 30 amendments thereto shall not be further DEPARTMENT OF THE INTERIOR days after the meeting. redelegated. A second meeting (if necessary) is B. All other authorities may be redele­ Bureau of Land Management scheduled on February 21, 1974 (same gated. CRAIG DISTRICT ADVISORY BOARD time and place), to consider protests C. Redelegations under this section Notice of Meeting from actions recommended in the Janu­ other than to officials in the Office of ary 11,1974, meeting. Housing (including Regional Housing The Craig District Grazing Advisory Board will meet at 10 a.m. on Decem­ W i n s t o n B. S h o r t , and Urban Development Offices located Acting District Manager. in the field) or Regional Assistant Ad­ ber 4 and 5, 1973, at the District Office, ministrators, shall be subject to approval Craig, Colorado. [FR Doc.73-25464 Filed ll-30-73;8:45 am ] by the appropriate Regional Assistant The purpose of the meeting will be to Administrator or his designee. fconsider district grazing applications, This amendment to the redelegation licenses, and transfer of grazing privi­ VERNAL DISTRICT GRAZING ADVISORY of authority to the Director and Deputy leges in the Little Snake, Kremmling, and BOARD, UTAH Director, Office of Housing, shall be ef­ White River Resource Areas. Notice of Meeting fective immediately. Other topics for discussion include the Notice is hereby given that the Vernal reorganization of the Advisory Board Dated: June 21,1973. and matters related to wild horse and District Grazing Advisory Board will hold J a m e s F. C a m p b e l l , burro management. a meeting December 18, 1973, in the dis­ Assistant Administrator for Pro­ The meeting is open to the public. Re­ trict office in the Cooper Building, Vernal, gram and Management Serv­ quests for additional information should Utah, beginning at 9 a.m. ices. be submitted to the District Manager, The agenda will include reorganiza­ [FR Doc.73—25450 Filed ll-30-73;8:45 am ] 455 Emerson St., P.O. Box 248, Craig, tion of the Board, transfers of base prop­ Colorado 81625, telephone number (303) erty qualifications, review of grazing ap­ 824-3289. DEPARTMENT OF DEFENSE plications, review erf change in class of D a l e R . A n d r u s , Air Force State Director. livestock, wild horse program, progress report on Division of Wildlife Resources, HISTORICAL ADVISORY COMMITTEE [FR Doc.73-25538 Filed 11-30-73:8:45 am ] local energy resource related problems, Notice of Meeting review updated allotment management N o v e m b e r 27,1973. LEWISTOWN DISTRICT ADVISORY BOARD plans, and the predator control program. The Advisory Committee on the Air Notice of Meetings Force Historical Program will meet at B a r t o n E . B e n n i o n , the Forrestal Building, Washington, D.C., Notice is hereby given that the Lewis- Acting District Manager. on December 6 and 7,1973. town District Advisory Board will hold a [FR Doc.73-25449 Filed 11-30-73:8:45 am ]

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 33318 NOTICES

WYOMING trict will be consolidated into the Wash­ DECEMBER 4--- PRESENTATIONS BY VARIOUS COAL OPERATORS ON SAFETY RESEARCH NEEDS Modification of Administrative District akie and Shoshone Resource Areas with Office Boundaries and Jurisdictions headquarters at the Worland District 9 a .m ______' J e w e ll S m o k less C o al Corp., Office. Inc., Vansant, Virginia; Pursuant to the authority vested in the .7. These modifications have no affect K e n tu c k y E lk h o rn C o al Co., Secretary of the Interior, as delegated to on jurisdiction, responsibilities or role of Inc., Virgie, Kentucky; AKP the Director, Bureau of Land Manage­ established district advisory boards. Coal Company, Hindman, ment by 235 DM 1.1, and as redelegated Kentucky; Crawford Engi­ to State Directors, the following modifi­ Dated: November 21,1973. neering, Whitesburg, Ken­ tucky; New Virginia Coal cations of administrative district bound­ D a k i e l P. B a k e r , ' aries and jurisdictions in Wyoming are Company, Virgie, Kentucky; State Director. Terry Glenn Coal Company, announcéd. These changes become effec­ Approved: Crummies, Kentucky; Uni­ tive on or about January 5, 1974. versal Coal Corporation, C u r t B e r k l u n d , 1. The Bureau of Land Management Richlands, Virginia. office located at Lander, Wyoming, is re­ Director, Bureau of Land 12 n o o n _ ___ L u n c h . designated as a Resource Area Head­ Management. 1 p .m ------._ C o n t in u a tio n o f presentations quarters office. It will be known as the [PR Doc.73-25465 Piled ll-30-73;8:45 am] if not completed prior to Lander Resource Area Headquarters of­ 12 n o o n . fice and will come under the administra­ 2 p .m ------Executive session. Closed to Bureau of Mines p u b l i c . . tive jurisdiction of the Rawlins District 4 p .m — ------Adjournment. office. This jurisdictional change does not ADVISORY COMMITTEE ON COAL MINE [FR Doc.73-25534 Piled ll-30-73;8:45 am] affect the status or use of the national SAFETY RESEARCH resource lands in the former Lander Dis­ Notice of Meeting trict other than placing them under the National Park Service administrative jurisdiction of the Raw­ Notice is hereby given that the Ad­ lins District. Service to the public in Lan­ visory Committee on Coal Mine Safety INDIANA DUNES NATIONAL LAKESHORE der will continue to be provided by the Research will meet December 3 and 4, ADVISORY COMMISSION Lander Resource Area Headquarters 1973, commencing at 9 a.m. at the Ra- Notice of Meeting Office. mads Inn North, 232 New Circle Road, Notice is hereby given in accordance 2. As a result of the change noted in Lexington, Kentucky. The purpose of the with the Federal Advisory Committee Act item 1 the Copper Mountain and Sweet­ Committee is to consult with and to make that a meeting of the Indiana Dunes water Resource Areas are consolidated recommendations to the Secretary on National Lakeshore Advisory Commis­ matters involving or relating to coal mine and the name changed to Lander Re­ sion will be held at 1:30 p.m. on Decem­ source Area. Headquarters for this re­ safety research. The meeting will be open ber 6, 1973, at the Indiana Dunes Na­ source area will be Lander. The Great to the public on December 3, 1973. On tional Lakeshore Building, Chesterton, Divide and Baggs Resource Areas of the December 4, 1973, the committee will Indiana. Rawlins District are also consolidated meet in an Executive Session at 2 p.m. The purpose of the Indiana Dunes Na­ and the name changed to Divide Re­ tional Lakeshore Advisory Commission is source Area. Headquarters for this re­ at which there will be considered pro­ posed research contracts which contain to meet and consult with the Secretary source area will be in the District Office of the Interior on general policies and in Rawlins, These changes do not affect commercial or financial information specific matters relating to the admin­ the status or use of the national resource which is privileged or confidential matter istration and development of the In­ lands in the resource areas involved. under 5 U.S.C. 552(b)(4). This session diana Dimes National Lakeshore. 3. The Bureau of Land Management will not be open to the public. Persons office located at Pinedale, Wyoming, is The members of the Commission are as redesignated as a Resource Area Head­ desiring further information concerning fo llo w s : quarters office. It will be known as the this meeting may contact Dr. Earl T. Mr. William L. Lieber, Indianapolis, Ind. (Chairman). Pinedale Resource Area Headquarters of­ Hayes, Department of the Interior, Bu­ Mr. Harry W. Prey, Michigan City, Ind. fice and will come under the adminis­ reau of Mines, Room 3610, Telephone Mrs. lone P. Harrington, Chesterton, Ind. trative jurisdiction of the Rock Springs (202) 343-5643. Mr. John A. Hillenbrand, II, Batesville, Ind. District Office. This jurisdictional change Mr. Harold G. Rudd, Portage (Ogden Dunes), The agenda of the two-day meeting does not affect the status or use of the In d . national resource lands in the former is set forth below. Mr. John R. Schnurlein, Kouts, Ind. Pinedale District other than placing Dated: November 28,1973. Mr. Ed Masiulis, Beverly Shores, Ind. them under the administrative jurisdic­ The purpose of this meeting is to present tion of the Rock Springs District except S t e p h e n A . W a k e f i e l d , Assistant Secretary, to the Commission the West Beach De­ as noted in item 5 bélow. Service to the velopment Plans, and the expansion Energy and Minerals. public in Pinedale will continue to be legislation for the Indiana Dunes Na­ provided by the Pinedale Resource Area A g e n d a tional Lakeshore. Headquarters office. Advisory Committee on Coal Mine Safety The meeting will be open to the public. 4. As a result of the change noted in Research, Twelfth Meeting, Ramada Inn Any person may file with the Commis­ item 3, the Piney and Pinedale resource North, 232 New Circle Road, Lexington, Ken­ sion a written statement concerning the areas of the present Pinedale District are tucky, December 3 and 4,1973. matters to be discussed. consolidated and the name for the total DECEMBER 3--- PRESENTATIONS BY VARIOUS UNION Persons wishing further information area will be the Pinedale Resource Area. MEMBERS ON SAFETY RESEARCH NEEDS concerning this meeting, or who want to Headquarters for this resource area will „9 a .m ______United Mine Workers of file written statements, may contact be Pinedale. America, Southern Labor James R. Whitehouse, Superintendent, 5. Responsibility for coordination of Union, Progressive Mine Indiana Dunes National Lakeshore, at Workers of America. activities with Yellowstone National Park 219-926-7561. Minutes of the meeting will be transferred from the present 12 n o o n _____ L u n c h . Pinedale District to the Worland District. 1 p .m ___ r.___ Subcommittee report on re­ will be available for public inspection search areas identified dur­ three weeks after the meeting at the Su­ 6. The Shell-Nowood, Clarks Fork- ing eleventh meeting on Shoshone, and Gooseberry-Tatman O c to b e r 10 a n d 11. perintendent’s Office of the Indiana Mountain resource areas of Worland Dis­ 4 p .m ______Adjournment. Dunes National Lakeshore located at the

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 NOTICES 33319 intersection of State Park Road and U.S. Agriculture, has prepared a draft envi­ of Missoula, Lake, Powell, Lincoln, and Lewis and Clark Counties, Montana. H i g h w a y 12, Chesterton, Indiana. ronmental statement for the East Brad- fiëld River Timber Sale, USDA-FS-DES The final environmental statement Dated: November 26,1973. (Adm) 74-42. was filed with CEQ on November 28, R o b e r t M . L a n d a u , The environmental statement concerns 1973. Liaison Officer, Advisory Com­ a proposed action to harvest. Copies are available for inspection missions, National Park Serv­ This draft environmental statement during regular working hours at the fol­ ice. was filed with CEQ on November 26,1973. lowing locations: [PR Doc.73-25619 Filed 11-30-73:8:45 am ] Copies are available for inspection dur­ USDA, Forest Service, South Agriculture ing regular working hours at the follow­ Bldg., Room 3231, 12th St. & Independence ing locations: Ave. SW „ Washington, D.C. 20250. USDA, Forest Service, Region 1— Northern Office of Oil and Gas USDA, Forest Service, So. Agriculture Bldg., Region, 200 East Broadway, Missoula, Room 3230, 12th St. & Independence Ave. EMERGENCY PETROLEUM SUPPLY Montana 59801. SW., Washington, D.C. 20250. COMMITTEE, ET AL. USDA, Forest Service, Flathead National For­ USDA, Forest Service, Hogue Alley and G est, 290 North Main, Kalispell, Montana Notice of Meetings Street, Petersburg, Alaska 99833. 59901. Pursuant to Pub. L. 92-463, notice is A limited number of single copies are USDA, Forest Service, Swan Lake Ranger hereby given of the following meetings: available upon request to Area Manager, Station, Bigfork, Montana 59911. The Supply and Distribution Subcom­ Stikine Area, Tongass National Forest, A limited number of single copies are mittee of the Emergency Petroleum Sup­ P.O. Box 722, Petersburg, Alaska 99833. available upon request to Edsel L. Corpe, ply Committee will meet at 10 a.m. on Copies are also available from the Na­ Forest Supervisor, Flathead National December 6, 1973, in Room 4601, 1251 tional Technical Information Service, Forest, 290 North Main, Kalispell, Mon­ Avenue of the Americas, in New York U.S. Department of Commerce, Spring- tana 59901. City. The agenda will include discussions field, Virginia 22151. Please refer to the Copies are also available from the Na­ of data compiled by the Subcommittee in name and number of the environmental tional Technical Information Service, response to a request by the Emergency statement above when ordering. U.S. Department of Commerce, Spring- Petroleum Supply Committee. Copies of the environmental statement field, Virginia 22151. Please refer to the The Transportation Subcommittee of have been sent to various Federal, State, name and number of the environmental the Emergency Petroleum Supply Com­ and local agencies as outlined in the statement above when ordering. mittee will meet at 2 p.m. on December 6, Council on Environmental Quality Copies of the environmental statement 1973, in Room 4601, 1251 Avenue of the Guidelines. have been sent to various Federal, State, Americas, in New York City. The agenda and local agencies as* outlined in the will include discussions of data compiled Comments are invited from the public and from State and local agencies which Council on Environmental Quality by the Supply and Distribution Subcom­ Guidelines. mittee in response to a request by the are authorized to develop and enforce G e n e S. B e r g o f f e n , Emergency Petroleum Supply Committee. environmental standards, and from Fed­ eral agencies having jurisdiction by Acting Deputy Chief, The Emergency Petroleum Supply Forest Service. Committee will meet at 10:30 a.m. on law or special expertise with respect to December 11, 1973, in Room 5160 at the any environmental impact involved for N o v e m b e r 28, 1973. which comments have not been re­ Department of the Interior in Washing­ [FR Doc.73-25554 Filed 11-30-73:8:45 am ] ton, D.C. The agenda will include discus­ quested specifically. sion of data compiled by the Supply and Comments concerning the proposed Distribution Subcommittee. action and requests for additional infor­ DEPARTMENT OF COMMERCE The purpose of the Emergency Petro­ mation should be addressed to Area Domestic and International Business leum Supply Committee is to assist the Manager, Tongass National Forest, P.O. Administration U.S. Government in coping with prob­ Box 722, Petersburg, Alaska 99833. Com­ ments must be received by January 26, NATIONAL INDUSTRIAL ENERGY lems resulting from disruptions of foreign CONSERVATION COUNCIL petroleum supply. 1974, in order to be considered in the These meetings will not be open to the preparation of the final .environmental Notice of Public Meeting public because the discussions will deal statement. The first meeting of the National In­ G e n e S. B e r g o f f e n , with matters listed in section 552(b) of dustrial Energy Conservation Council title 5, United States Code. Specifically, Acting Deputy Chief, will be held from 10 a.m. to noon on Mon­ Forest Service. these matters are related to matters that day, December 10, 1973, in Room 4830, are specifically required by Executive N o v e m b e r 27, 1973. Main Commerce Building* 14th and E Order to be kept secret in the interest of [FR Doc.73-25531 Filed 11-30-73:8:54 aqi] Streets NW., Washington, D.C. national defense or foreign policy and The Council is established to advise trade secrets and commercial or financial the Secretary of Commerce on programs information obtained from a person and THREE-YEAR ROAD CONSTRUCTION PROGRAM and problems relating to the conserva­ privileged or confidential. The short no­ tion of energy within the industrial and tice is due to emergency developments. Availability of Final Environmental commercial sectors, and to provide a Statement Dated: November 30,1973. forum for the exchange of views on en­ Pursuant to section 102(2) (C) of the ergy conservation between government B e n T a f o y a , National Environmental Policy Act of and the industrial and commercial sec­ Secretary, Emergency Petroleum 1969, the Forest Service, Department of tors. Supply Committee. Agriculture, has prepared a final envi­ The preliminary agenda for this initial [FR Doc.73-25665 Filed 11-30-73; 11:00 am ] ronmental statement for the Three- meeting includes opening remarks by the Year Road Construction Program for the Secretary of Commerce, discussion as to DEPARTMENT OF AGRICULTURE how Government and Business and In ­ Flathead National Forest, Report Num­ dustry might cooperate in order to foster Forest Service ber USDA-FS-FES (Adm 73-7). energy conservation, and organizational EAST BRADFIELD RIVER SALE The environmental statement con­ issues such as schedule of meetings. A detailed agenda will be available at the Availability of Draft Environmental cerns the development of a three-year Statement program of road construction and re­ meeting. The meeting will be open to the public Pursuant to section 102(2) (C) of the construction on the Flathead National National Environmental Policy Act of Forest. The Forest covers a large portion and media representatives to the extent 1969, the Forest Service, Department of of Flathead County and smaller portions of available space in the conference

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 33320 NOTICES

room. Oral statements or participation terchangeable with or can be readily Commission Building, 1900 E Street NW., by the public in the meeting will not be adapted to the instrument with which Washington, D.C. permitted, but any member of the public the foreign article is intended to be used. The Advisory Council’s responsibility who wishes to file a written statement (Catalog of Federal Domestic Assistance Pro­ Is to study and make recommendations with the Council shall be permitted to g ra m N o . 11.105, Im p o rt a tio n o f D u t y -F re e regarding personnel policies and pro­ do so, either before, or after, the meeting. Educational and Scientific Materials.) grams for the purpose of— Persons who wish to attend should (1) Improving the quality of public contact Mr. Phillip J. Carroll, Room 6892, A . H . S t u a r t , administration at State and local levels Main Commerce Building, telephone Director, Special Import Programs Division. of government, particularly in connec­ (202) 967-3535. Any questions regard­ tion with programs that are financed in ing the meeting should also be directed [FR Doc.73-25549 Filed 11-30-73; 8:45 am ] whole ot in part from Federal funds; to Mr. Carroll. (2) Strengthening the capacity of A l a n j . P o l a n s k y , Office of the Secretary State and local governments to deal with Acting Deputy Assistant Secre­ complex problems confronting them; tary for Resources and Trade NATIONAL INDUSTRIAL ENERGY (3) Aiding State and local govern­ Assistance. CONSERVATION COUNCIL ments in training their professional, ad­

N o v e m b e r 29,1973. Notice of Establishment ministrative, and technical employees and officials; [F R Doc.73—25639 Filed 11-30-73:8:45 am ] In accordance with the provisions of (4) Aiding State and local govern­ the Federal Advisory Committee Act ments in developing systems of person­ (P.L. 92-463) and OMB/Justice Depart­ UNIVERSITY OF CALIFORNIA nel administration that are responsive ment guidelines on the Act, and after to the goals and needs of their programs Notice of Decision on Application for consultation with the Office of Manage-, and effective in attracting and retaining Duty-Free Entry of Scientific Article ment and Budget, the Secretary of Com- capable employees; and merce has determined that the establish­ (5) Facilitating temporary assign­ The following is a decision on an appli­ ment of the National Industrial Energy cation for duty-free entry of a scientific ments of personnel between the Federal Conservation Council is in the public in­ Government and State and local govern­ article pursuant to section 6(c) of the terest in connection with the perform­ Educational, Scientific, and Cultural Ma­ ments and institutions of higher edu­ ance of duties imposed on the Depart­ cation. terials importation Act of 1966 (Public ment by law. Law 89-651, 80 Stat. 897) and the reg­ The Council will advise the Secretary At this meeting the Council will con­ ulations issued thereunder as amended sider policy alternatives in the areas of (37 PR 3892 et seq). on programs and problems relating to the conservation of energy within the in­ equal employment opportunity and labor A copy of the record pertaining to this dustrial and commercial sectors, and pro­ management relations in the public sec­ decision is available for public review vide a forum for the exchange of views tor. Time will also be devoted to an during ordinary business hours of the on energy conservation between govern­ initial examination of issues in the fol­ Department of Commerce, at the Office ment and the industrial and commer­ lowing areas: (a) Government employee of Import Programs, Department of cial sectors. political activity; (b) training and edu­ Commerce, Washington, D.C. 20230. The Council will consist of approx­ cation in the public service; and (c) a Docket number: 73-00499-00-27000. imately 20 members, representatives of survey of progress of Intergovernmental Applicant: University of California, Los business and industry appointed by the Personnel Act programs to date, includ­ Alamos Scientific Laboratory, P.O, Box Secretary, who shall serve without either ing a highlight of problems. 990, Los Alamos, N. Mex. 87544. Article: compensation or reimbursement of ex­ The meeting will be open to the public. Image converter tube with 9 x8 mm S-20 Seating will be available to accommodate extended red photocathode. Manufac­ penses. A Chairman and Vice-Chairman shall be designated by the Secretary. up to twenty observers. No time will be turer: John Hadland Ltd., United King­ devoted during the meeting to participa­ dom. Intended use of article: The article Due to the urgency of the national energy situation, the Office of Manage­ tion or presentations by members of the is intended for replacement use in an public. However, individuals and groups Ima-Con Model 700 image converter ment and Budget has granted, in re­ sponse to Department of Commerce re­ are invited to submit material in writing camera to aid in the operation of the quest, a waiver of the administratively- to the Chairman concerning matters felt camera in accomplishing studies of radi­ to be deserving of the Council's attention. ation emitted by high energy neon prescribed waiting period between the. date of this notice and the filing of the Such material should be addressed to: plasma and by highly dosed air. The ar­ Council’s charter under section 9(c) Chairman, Advisory Council on Inter­ ticle aids the image converter camera in P.L. 92-463. Accordingly, the Council's governmental personnel Policy, Room obtaining as many as 15 or 20 pictures of charter, signed by the Secretary of Com­ 2315, 1900 E Street NW., Washing­ the plasma in various wave lengths of merce, will be filed immediately. ton, D.C. 20415, Attention: Executive light with time resolution in the range of Secretary. 50 nanoseconds to a few microseconds. H e n r y B. T u r n e r , Comments: No comments have been Assistant Secretary Persons wishing additional informa­ received with respect to this application. for Administration. tion concerning this meeting should con­ Decision: Application approved. No in­ tact the Executive Secretary at the above N o v e m b e r 29,1973. strument or apparatus of equivalent address or by telephone (202) 632-6248. [FR Doc.73—25638 Filed ll-30-73;8:45 àm ] scientific value to the foreign article, for E . C . W a k h a m , such purposes as this article is intended Executive Secretary, Advisory to be used, is being manufactured in the ADVISORY COUNCIL ON INTERGOV­ Council on Intergovernmental United States. ERNMENTAL PERSONNEL POLICY Personnel Policy. [FR Doc.73-25552 Filed 11-30-73:8:45 am] Reasons: The application relates to a NOTICE OF PUBLIC MEETING compatible component for an instrument Pursuant to the provisions of section ATOMIC ENERGY COMMISSION that had been previously imported for 10 of Public Law 92-463, effective Jan­ the use of the applicant institution. The uary 5, 1973, notice is hereby given that [Docket No. 50-382A] article is being furnished by the manu­ a meeting of the Advisory Council on LOUISIANA POWER AND LIGHT CO. facturer which produced the instrument Intergovernmental Personnel Policy will Notice and Order for Third Prehearing. with which the article is intended to be be held from 8:30 am., Wednesday, De­ Conference used. cember 12, through 4:30 pm., Thursday, In the matter of Waterford Steam The Department of Commerce knows December 13,1973. Electric Generating Station, Unit 3. of no similar component being manufac­ The meeting will be held in Room Take notice, that pursuant to the tured in the United States, which is ii\- 5A06A (Enter 5H09) of the Civil Service Atomic Energy Commission’s notice of

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 NOTICES 33321

February 23, 1973, published in the F e d ­ concerning the petition for rule making Notice is also given, that the hearing e r a l R e g i s t e r (38 FR 5502) March 1, should send their comments to the Rules may be held immediately following con­ 1973, the Commission’s Memorandum and Proceedings Branch, Office of Ad­ clusion of the prehearing conference un­ and Order of September 28, 1973, and in ministration—Regulation, U.S. Atomic less a person objects or shows reason for accordance with the Commission’s rules Energy Commission, Washington, D.C. postponement on or before December 6, of practice, a Third Prehearing Con­ 20545, on or before February 1, 1974. 1973. ference will be held in the subject pro­ Dated at Germantown, Md., this 28th Dated at Washington, D.C., Novem­ ceedings on December 10,1973, at 10 a.m. day of November 1973. ber 27,1973. at the Postal Rate Commission, Suite 500, 2000 L Street NW., Washington, D.C. For the Atomic Energy Commission. [ s e a l ] R a l p h L. W i s e r , Chief Administrative The subject of this Prehearing Confer­ P a u l C. B e n d e r , ence will be factual stipulations and such Secretary of the Commission. Law Judge. other matters as will aid in the disposi­ [FR Doc.73-25551 FUed 11-30-73:8:45 am ] tion of these proceedings. The hearing [PR Doc.73-25636 Filed 11-30-73:8:45 am ] room will be available on December 11, CIVIL SERVICE COMMISSION 1973 if it becomes apparent that the con­ [Docket No. 50-202] ference should be continued for another FEDERAL PREVAILING RATE ADVISORY day. UNIVERSITY OF NEVADA COMMITTEE All of the participants in these pro­ - Intent To Issue Order Authorizing Notice of Committee Meetings ceedings will be admitted by the Board Dismantling of Facility as Parties. An order to that effect will be Pursuant to the provisions of section issued shortly. By application notarized July 25, 1973, 10 of Public Law 92-463, effective Janu­ and supplement dated September 20, ary 5, 1973, notice is hereby given that Issued at Washington, D.C. this 27th 1973, the University of Nevada requested meetings of the Federal Prevailing Rate day of November 1973. authorization to dismantle their D-77 Advisory Committee will be held on: reactor in accordance with a plan sub­ By order of the Atomic Safety and Li­ Thursday, December 6,1973 censing Board. mitted to the Commission. Operation of ‘ T h u rs d a y , D e c e m b e r 13, 1973 H u g h K . C l a r k , the facility has been discontinued and all W e d n e sd a y , D e c e m b e r 19, 1973 Chairman. fuel will be removed from the reactor and put in authorized storage containers. The meetings will convene at 10 a.m. [PR Doc.73-25479 Piled ll-30-73;8:45 am ] The Commission has reviewed the ap­ and will be held in Room 5A06A, Civil plication in accordance with the provi­ Service Commission Building, 1900 E Street NW., Washington, D.C. [Docket No. PRM-40-19] sions of the Commission’s regulations and has found that the dismantlement The committee’s primary responsi­ R. S. LANDAUER, JR. AND CO. and storage of component parts of the bility is to study the prevailing rate sys­ Filing of Petition for Rule Making facility in accordance with the regula­ tem and from time to time advise the tions in 10 CFR Chapter I and the appli­ , Civil Service Commission thereon. Notice is hereby given that R. S. Lan- cation, as modified, will not be inimical dauer, Jr. and Company, Glenwood Sci­ At these scheduled meetings, the com­ to the common defense and security or mittee will consider proposed plans for ence Park, Glenwood, Illinois, by letter to the health and safety of the public. dated October 22, 1973, has filed with implementation of Public Law 92-392, The basis for the findings is set forth in which law establishes pay systems for the Atomic Energy Commission a peti­ the Safety Evaluation by thé Regulatory tion for rulemaking. Federal prevailing rate employees. staff which is being issued concurrently The meetings will be closed to the The petitioner requests that the Com­ with this notice. mission amend § 40.13 of 10 CFR Part public under a determination to do so, Accordingly, an appropriate Order will made under the provisions of Section 4Q by addition of the following, exemp­ be issued on December 18, 1973 authoriz­ tion from the licensing requirements of 10(d) of Public Law 92-463. ing the University of Nevada, following However, members of the public who Part 40: personnel dosimeters containing, transfer of all fuel to authorized storage not more than 50 milligrams of thorium wish to do so, are invited to submit containers, to dismantle their L-77 re­ material in writing to the Chairman per dosimeter. actor covered by License No. R-91r as The petitioner states that it has con­ concerning matters felt to be deserving amended, in accordance with the appli­ of the committee’s attention. Additional ducted developmental studies which cation and the Commission’s regulations. would lead to the implementation of a information concerning these meetings personnel neutron monitoring service Date of Issuance: November 27, 1973. may be obtained by contacting the utilizing fission fragment detection de­ For the Atomic Energy Commission. Chairman, Federal Prevailing Rate Ad­ vices. The petitioner states further that visory Committee, Room 5451, 1900 E the most effective design for such a moni­ D o n a l d J . S k o v h o l t , Street NW., Washington, D.C. toring system requires the incorporation Assistant Director for Operating of a thorium foil within the dosimeter Reactors Directorate of Li­ D a v i d T . R o a d l e y , holder. censing. Chairman, Federal Prevailing The petitioner discusses the benefits of [FR Doc.73-25635 Filed ll-30-73;8:45 am ] Rate Advisory Committee. the fission fragment fast neutron dosim­ N o v e m b e r 27, 1973. eter in comparison with the fast neu­ tron dosimeter, NTA film (Nuclear Track CIVIL AERONAUTICS BOARD [FR Doc.73-25466 FUed 11-30-73:8:45 am ] Emulsion—Type A ) , including a compar­ [Dockets Nos. 25581, 26078] COUNCIL OF ECONOMIC ADVISERS ison of the two systems with respect to JUGOSLOVENSKI AEROTRANSPORT energy response, information fading, ADVISORY COMMITTEE ON THE Notice of Prehearing Conference and evaluation integrity, dose range, and ef­ ECONOMIC ROLE OF WOMEN fects of other radiation. Hearing A copy of the petition for rule making Notice is hereby given that a prehear­ Meeting is available for public inspection in the ing conference in the above-entitled mat­ N o v e m b e r 9,1973. Commission’s Public Document Room at ter is assigned to be held on December 10, Advisory Committee on the Economic 1717 H Street, NW., Washington, D.C. A 1973, at 10 am. (local time), in Room Role of Women pursuant to P.L. 92-463, copy of the petition may be obtained by 503, Universal Building, 1825 Connecti­ the Federal Advisory Committee Act, no­ writing the Rules and Proceedings tice is hereby given that a meeting of the Branch at the below address. cut Avenue NW., Washington, D.C., be­ Advisory Committee on the Economic All interested persons who desire to fore Administrative Law Judge William Role of Women will take place in Wash­ submit written comments or suggestions H. Dapper. ington, D.C., on December 5, 1973. It will

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 33322 NOTICES

be held from 9:30 a.m. to 3 p.m. in Room 6. Horsham Township Authority. A be held at the time and place specified 2010 New Executive Office Building. The well water supply project to augment below. meeting will be an open meeting. public water supplies in portions of December 10 at 10 a.m., Kentucky The theme of the meeting will be “Plan­ Horsham and Warminster Townships, State Department of Health Building ning Session for Calendar Year 1974.” Montgomery County, Pa. Designated as Auditorium, 275 E. Main Street, Frank­

J a m e s H . A y r e s , Well No. 20, the new facility is expected fort. Hearing Officer: Gene B. Welsh. Administration Officer. to yield 432,000 gallons per day. 7. Bells Lake Water Co. A well water Dated November 28,1973. [FR Doc.73-25535 Filed ll-30-73;8:45 am] supply project to augment public water R o b e r t L. S a n s o m , supplies in the Bells Lake Estates de­ Assistant Administrator for Air DELAWARE RIVER BASIN velopment community in Washington and Water Programs. COMMISSION Township, Gloucester County, N.J. Com­ [FR Doc.73-25563 Filed ll-30-73;8:45 am] bined withdrawals from two existing COMPREHENSIVE PLAN wells will be increased to a maximum Notice of Public Hearing average of 617,000 gallons per day during FEDERAL COMMUNICATIONS Notice is hereby given that the Dela­ any 30-day period. COMMISSION ware River Basin Commission will hold 8. Cambridge Developers Water Co. A [D o c k e t N o s. 19874, 19875; F ile N o . BR-2875 a public hearing on Wednesday, Decem­ well water supply project to augment e t a l.] public water supplies in the Fairways- ber 12, 1973, in Room 1600 of the Munic­ HERTZ BROADCASTING OF BIRMINGHAM, ipal Services Building, 15th and Ken­ At-Brookside residential community in Lower Macungie Township, Lehigh INC., AND JOHNSTON BROADCASTING nedy Blvd., Philadelphia, Pa., beginning CO. at 2 pjn. The subject of the hearing will County, Pa. Designated as Well No. 1, be a proposal to amend the Comprehen­ the new facility is expected to yield Order and Notice of Apparent Liability sive Plan so as to include therein the fol­ 124,000 gallons per day. Designating Applications for Consoli­ lowing projects. 9. Upper Hanover Toivnship Sewer Au­ dated Hearing on Stated Issues 1. T. H. Biondi, Inc. A sewage treat­ thority. A sewage interceptor and pump­ In re applications of Hertz Broadcast­ ment project to serve a residential de­ ing project to augment waste manage­ ing of Birmingham, Inc. (WENN and velopment known as Broad Run in ment in Upper Hanover Township, Mont­ W ENN-FM ), Birmingham, Alabama, West Bradford Township, Chester gomery County, Pa. About 4.2 miles of Docket No. 19874, File Nos. BR-2875, County, Pa. The treatment facility will interceptor sewer will be constructed to BRH-2454, for renewal of license. John­ have a capacity of 150,000 gallons per convey an ultimate flow of 1.4 million ston Broadcasting Company (WJLD and day and provide removal of 91 percent of gallons per day to the Upper Mont­ WJLN (F M )), Birmingham, Alabama, BODb and 92 percent of suspended solids. gomery Joint Authority treatment plant. Docket No. 19875, File Nos. BR-1174, Treated effluent will discharge to 10. Delaware Dept, o f Highways and BRH-328, BRSCA—970, for renewal of Broad Run, a tributary of West Branch Transportation. A project to stabilize license (Main and SC A) . Brandywine Creek. eroded embankments along the Cause­ 1. The Commission has before it for 2. Camelback Ski Corp. A sewage way in Kent County, Del. The Causeway consideration: (a) The captioned appli­ treatment project to serve the Camelback crosses State-owned wetlands desig­ cations, and (b) its inquiries into the ski area, including proposed condomin­ nated as the Woodland Beach Wildlife operation by Hertz Broadcasting of Bir­ iums, in Pocono Township, Monroe Area, and provides the only overland ac­ mingham, Inc., of Radio Stations WENN County, Pa. The treatment facility will cess to Woodland Beach and Bombay and WENN-FM, Birmingham, Alabama; have a capacity of 75,000 gallons per day Hook Island. Approximately 30,000 cubic and the operation by Johnston Broad­ and provide removal of 96 percent of yards of material will be dredged from a casting Company of WJLD, Fairfield, and BODs and 92 percent of suspended solids. tidal tributary to Duck Creek and used W JLN(FM ), Birmingham, Alabama.1 Treated effluent will discharge to an un­ to replace eroded sections of the 2. Information before the Commission named tributary of Pocono Creek. Causeway. raises serious questions as to whether 3. Federated Home & Mortgage Co. Documents relating to the above proj­ ects may be examined at the Commis­ either of the captioned applicants pos­ A sewage treatment project to serve the sesses the qualifications to be or to re­ Holiday Inn motel and restaurant in sion offices. Persons wishing to testify main a licensee of the captioned stations. Stroud Township, Monroe County, Pa. are requested to notify the Secretary In view of these questions, the Commis­ The treatment facility will have a ca­ prior to the hearing. sion is unable to find that a grant of pacity of 73,000 gallons per day and W . B r i n t o n W h i t a l l , the renewal applications would serve the provide removal of 96 percent of BOD5 Secretary. and 97 percent of suspended solids. public interest, convenience and neces­ N o v e m b e r 23, 1973. Treated effluent will discharge to Pocono sity, and must, therefore, designate the Creek. {F R Doc.73-25451 Filed 11-30-73;8:45 am ] applications for hearing. 4. Warminster Township Municipal 3. A Commission field investigation Authority. A project to expand the ca­ was conducted to develop the facts sur­ ENVIRONMENTAL PROTECTION rounding the filing of a complaint against pacity of the existing sewage treatment AGENCY plant serving portions of Warminster, Radio Station WJLD, in which it was Warrington, Horsham, and Montgomery REVIEW OF NEW OR MODIFIED INDIRECT alleged that principals of WJLD had Townships, Bucks County, Pa. The new SOURCES bribed the complainant to file a false complaint against Radio Station WENN. treatment facility will have a capacity of Notice of Public Hearing 4 million gallons per day, increasing the The complainant had first alleged that total treatment capacity to 7.8 million On Tuesday, October 30, 1973 (38 FR WENN discriminated against him by gallons per day, and the new facility 29893), the Administrator of the En­ refusing to sell him advertising time on will provide removal of 96 percent of vironmental Protection Agency published the station. The complainant claimed BODs. Treated effluent will be dis­ proposed regulations providing legally that WENN so refused because the sta­ charged to Little Neshaming Creek via a enforceable procedures for review prior tion had made all the time available new outfall line. to construction of indirect sources of air to its own disk jockeys to promote shows 5. Medford Township. Expansion of pollution. The times and location of pub­ the disk jockeys sponsored. The disk the sewage treatment plant in Med­ lic hearings on the proposed regulations jockeys’ shows were in competition with ford Township, Burlington County, N.J. were published in the F e d e r a l R e g i s t e r shows the complainant was sponsoring. Plant capacity will be increased to one million gallons per day and provide on November 23, 1.973 (38 FR 32267). removal of about 90 percent of BOD5. The purpose of this notice is to change 1 W JLD is licensed to Fairfield, Alabama, a s u b u r b o f B irm in g h a m ; h o w ev er, th e offices Treated effluent will discharge to the the public hearing date for the State of of Johnston Broadcasting Company are in southwest branch of Rancocas Creek. Kentucky. The hearing for Kentucky will Birmingham.

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 OQOOO NOTICES OOOAO

Serious questions of fact remain unre­ (h) To determine all the facts and cir­ mission’s policy as set forth in its Public solved which must be settled in a hearing. cumstances surrounding the filing by the Notice adopted October 27, 1965, con­ Since either of the complainant’s allega­ applicant of all letters or other docu­ cerning the making of audience claims tions, if found to be true, bears on the ments addressed to the Federal Com­ and the proper qualifying thereof by li­ qualifications of the captioned applicants munications Commission, especially with censees. to remain licensees of the Commission, regard to documents dated January 5, With respect to the applications of both the licensees of WJLD and WENN April 3, and April 19,1972, and August 10, Johnston Broadcasting Company: are joined in this proceeding. 1973; and in light of the facts adduced, (r) To determine all the facts and cir­ 4. Accordingly, it is ordered, That in to determine whether the statements cumstances surrounding the applicant’s view of the serious charges and counter­ made therein were truthful and candid. procedures for maintaining program logs charges he made against both captioned (i) In light of the evidence adduced and ensuring that proper sponsorship applicants, the Reverend Robert Mc­ under issue (h) above, to determine identification announcements are made. K inney is made a party to this proceed­ whether the applicant or any of its offi­ (s) In light of the evidence adduced cers, directors, stockholders, employees, ing. under (r) above, to determine whether 5. It is further ordered, That the cap­ or other persons were lacking in candor the applicant has violated Section 73.112 tioned applications are designated for or have made any false statements or of the Commission’s rules concerning hearing in a consolidated proceeding pur­ misrepresentations to the Commission. program logs. (j) To determine all the facts and cir­ suant to section 309(e) of the Communi­ (t) In light of the evidence adduced cations Act of 1934, as amended, at a cumstances surrounding the degree of control exercised by the applicant over under issues (r) and (s) above, to deter­ t-imfi and place specified in a subsequent mine whether the applicant has violated Order, upon the following issues: its employees, especially concerning those controls necessary to prevent con­ section 317 of the Communications Act With respect to the applications of of 1934, as amended, or § 73.119 of the Hertz Broadcasting of Birmingham, Inc., flicts of interest between the applicant’s employees and the employees’ personal Commission’s rules concerning sponsor­ and Johnston Broadcasting Company: ship identification. (a) To determine all the facts and business interests. circumstances surrounding the filing of (k) To determine all the facts and With respect to both captioned appli­ complaints by Robert McKinney alleging circumstances surrounding the purchase cants: that Hertz Broadcasting of Birmingham, of advertising time on WENN and (u) To determine, in light of the evi­ Inc., denied McKinney advertising time WENN-FM by employees of the appli­ dence adduced under issues (a) through on WENN and WENN-FM for the pur­ cant, and to determine whether the ap­ ( t ) , inclusive, whether either applicant pose of advertising shows in which Mc­ plicant permitted the sale of such ad­ possesses the requisite qualifications to Kinney has or had a financial interest. vertising time at discounted rates so as be or to remain a licensee of the Com­ (b) In light of the evidence adduced to constitute unfair methods of competi­ mission, and whether a grant of the ap­ under issue (a) above, to determine tion with regard to dance and show pro­ plications would serve the public interest, whether Hertz Broadcasting of Birming­ moters who were not employees of the convenience, and necessity. ham, Inc., denied McKinney advertising applicant. 6. I t is further ordered, That if it is time because it reserved all time avail­ (l) In light of the evidence adduced determined that the hearing record does able for its own employees. , under issue (k) above, to determine not warrant an order denying the cap­ (c) To determine all the facts and whether the applicant exercised the de­ tioned applications for renewal of license circumstances surrounding the filing by gree of caution required to prevent prac­ of Stations WENN and WENN-FM, it Hertz Broadcasting of Birmingham, Inc., tices which tend to constitute unfair shall also be determined whether the ap­ of an affidavit signed by McKinney methods of competition, and whether the plicant has repeatedly or willfully vio­ retracting his complaint against WENN applicant exercised constant scrutiny lated sections 317 and 508 of the Commu­ and to determine whether the affidavit and supervision over the stations’ com­ nications Act of 1934, as amended, is truthful. mercial policies to avoid anticompetitivè §§ 73.112, 73.119, 73.282, and 73.289 of the (d ) In light of the evidence adduced results. Commission’s rules, or Title 18 U.S.C. under issues (a) through (c) inclusive, to (m) To determine all the facts and cir­ Section 1304.® I f so, it shall also be deter­ determ ine whether the principals of cumstances surrounding the process by mined whether an Order of Forfeiture Johnston Broadcasting Company bribed, which program logs are kept and used pursuant to section 503(b) of the Com­ coerced, paid, or offered to pay McKinney by the applicant, with special regard to munications Act of 1934, as amended, in or anyone else any consideration for filing the applicant’s procedures for ensuring the amount of $10,000 or some lesser with the Commission any complaint. that its program logs are accurate in re­ amount should be issued for violations (e) In light of the evidence adduced flecting the matter actually broadcast which occurred within one year preceding under issues (a) through (d) inclusive, over WENN and WENN-FM. the issuance of the Bill of Particulars in to determine whether the principals of (n) In light of the evidence adduced this matter. Hertz Broadcasting of Birmingham, Inc., under issue' (m) above, to determine 7. It is further ordered, That if it* is bribed, coerced, paid, of offered to pay whether the applicant violated §§73.111, determined that the hearing record does McKinney or anyone else any considera- 73.112, 73.281, and 73.282 of the Commis­ not warrant an order denying the cap­ bribed, coerced, paid, or offered to pay sion’s rules concerning program logs. tioned applications for renewal of license complaint or the filing with the Com­ (o) In light of the evidence adduced of Stations WJLD and WJLN (and its mission of any document constituting under issues (m) and (n) above, to de­ SCA), it shall also be determined whether a complaint. termine whether the applicant violated that applicant has repeatedly or will­ (f) To determine all the facts and cir­ section 317 of the Communications Act fully violated section 317 of the Com­ cumstances surrrounding the broadcast of 1934, as amended, and §§ 73.119 and 73.289 of the Commission's rules con­ munications Act of 1934, as amended, or in 1971 by the applicants of certain an­ §§ 73.112 and 73.119 of the Commission’s nouncements promoting a performance cerning sponsorship identification an-i known as “The World Series of Gospel”, nouncements. rules.® I f so, it shall also be determined and to determine whether the announce­ (p) To determine all the facts and cir­ whether an Order of Forfeiture pursuant ments included advertisements for, or in­ cumstances surrounding the preparation, to Section 503(b) of the Communications formation concerning, a lottery. dissemination, or utilization by the ap­ Act of 1934, as amended, in the amount (g) In light of the evidence adduced plicant of certain promotional materials of $10,000 or some lesser amount should claiming that WENN is the “No. 1 Negro under issue (f) above, to determine be issued for violations which occurred whether either or both applicants broad­ Station in the South’s 4th Negro Mar­ within one year preceding the issuance cast an advertisement or information ket,” or making other claims as to the concerning a lottery in violation of Title station’s audience rating. of the Bill of Particulars in this matter. 18 U.S.C. section 1304 (1964). (q) In light of the evidence adduced With respect to the application of under issue (p) above, to determine 2 See Bill of Particulars for specific dates Hertz Broadcasting of Birmingham, Inc.: whether the applicant violated the Com- and details of each aUeged violation.

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 No. 231—Pt. T- 8 33324 NOTICES

S. It is further ordered, That this docu­ham, Alabama, and to the Reverend issues. These issues relate to the same ment constitutes a Notice of Apparent Robert McKinney. matters which had formed the basis of Liability as to Hertz Broadcasting of By direction of the Commission. the Commission’s action setting aside the Birmingham, Inc., and Johnston Broad­ grant of Brannen and Brannen’s applica­ casting Company, for forfeiture for vio­ Adopted: November 14, 1973. tion. Brannen and Brannen now requests lations of the Communications Act of Released: November 21, 1973. that we either reinstate the grant of its 1934, as amended, and the Commission’s application, imposing such conditions as rules set out in paragraphs 5 and 6 above. [ s e a l ] V i n c e n t J. M u l l i n s , we deem necessary to protect the public The Commission has determined that, in Secretary. interest, or that we designate its appli­ every case designated for hearing in­ [PR Doc.73-25546 Filed 11-30-73:8:45 am] cation for hearing to permit an explora­ volving revocation or denial of renewal tion of the questions to which the Com­ of license for alleged violations which mission alluded in rescinding the grant. also come within the purview of section {D o c k e t N os. 19836, 19878; P ile N os. B L C T - 3. Section 309(e) of the Communica­ 503(b) of the Act, it shall, as a matter 2237, BPH —8078] tions Act of 1934, as amended, provides of course, include this forfeiture notice PANHANDLE BROADCASTING CO., INC., that if the Commission is unable for any so as to maintain the fullest possible AND BRANNEN AND BRANNEN reason to make the finding that the pub­ flexibility of action. Since the procedure Memorandum Opinion and Order Desig­ lic interest, convenience, and necessity is thus a routine or standard one, we nating Applications for Consolidated will be served by the granting of an ap­ stress that inclusion of this Notice is not Hearing on Stated Issues plication before it, then it shall formally to be taken as in any way indicating designate the application for hearing on what the initial or final disposition of In re applications of: Panhandle the grounds or reasons then obtaining. the case should be; that judgment is, Broadcasting Company, Inc. (W DTB- Thus, Brannen and Brannen contends of course, to be made on the facts of each TV>, Panama City, Florida, Docket No. that if the Commission is not disposed to case. 19836, File No. BLCT-2237, application reinstate its action granting Brannen 9. It is further ordered, That the Chief for license. Denver T. Brannen, Joel T. and Brannen’s application, then the Act of the Broadcast Bureau is directed to Brannen, and Eugenia S. Brannen, dba demands that a hearing be held. In addi­ serve upon the captioned applicants and Brannen and Brannen, Key West, Flor­ tion, Brannen and Brannen asserts that if Reverend Robert McKinney within thirty ida, Docket No. 19878, File No. BPH- neither of these alternative requests is (30) days of the release of this Order, a 8078, Requests: 95.5 MHz, No. 238; 100 granted, section 1.591 of our rules would Bill of Particulars with respect to issues kW (H & V) ; 257 feet for a construction allow competing applications for channel (a) through ( t ) , inclusive. permit. 233 at Key West to be considered by the 10. It is further ordered, That the 1. The Commission has before it: (a) Commission. While we cannot perceive Broadcast Bureau proceed with the ini­ The above applications; (b) petitions any compelling public interest reasons for tial presentation of the evidence with for reconsideration and stay of our reinstating the grant of Brannen and respect to issues (a) through (t) in­ Memorandum Opinion and Order of Brannen’s application, even if the grant clusive, and the applicants then proceed September 26,1973, in which we set aside was conditioned on the outcome of the with their evidence and have the burden our July 3, 1973, grant of Brannen and Panhandle proceeding, it does appear of establishing that they possess the Brannen’s application for a construction that the application should be designated requisite qualifications to be and to re­ permit for a new FM broadcast station for hearing* Thus, since the basic quali­ main licensees of Stations WENN, in Key West, Florida, and returned that fication issues designated in the Pan­ WENN-FM, WJLD, and WJLN ahd that application to pending status; and (c) handle proceeding involve many ques­ an opposition pleading by Florida Keys a grant of their applications would serve tions of fact which formed the basis of Broadcasting Corporation.1 the public interest, convenience, and our action setting aside the grant of necessity. 2. Mr. Denver T. Brannen owns 60 per­ Brannen and Brannen’s application, we cent of Brannen and Brannen and 40 shall designate Brannen and Brannen’s 11. It is further ordered, That to avail percent of Panhandle Broadcasting application for hearing in a consolidated themselves of the opportunity to be Company, Inc. (Panhandle). In our proceeding with Panhandle’s application heard, the applicants and Party Re­ Memorandum Opinion and Order of in Docket No. 19836. spondent, pursuant to § 1.221(c) of the September 26, 1973 (FCC 73-1006), we 4. Accordingly, it is ordered, That pur­ Commission’s rules, in person or by at­ stated that information contained in an suant to section 309(e) of the Communi­ torney, shall, within twenty (20) days of affidavit of Mr. Brannen, which was filed cations Act of 1934, as amended, the the mailing of this Order file with the with Panhandle’s application for license captioned applications are designated Commission, in triplicate, a written ap­ to cover its construction permit for tele­ for hearing in a consolidated proceeding pearance stating an intention to appear vision station WDTB-TV, Panama City, at a time and place to be specified in a on the date fixed for the hearing and Florida, and other data available to the subsequent Order, upon the following present evidence on the issues specified Commission, raised possible questions issues: * in this Order. concerning the basic qualifications of 1. To determine the facts and circum­ 12. I t is further ordered, That the ap­ Panhandle and its principals to be li­ stances which led to the listing of L. plicants herein, pursuant to section 331 censees of the Commission. In light of Charles Hilton as a 25 percent stock­ (a) (2) of the Communications Act of that information, we concluded that the holder in Panhandle Broadcasting Com­ 1934, as amended, and § 1.594 of the grant of Brannen and Brannen’s appli­ pany, Inc., rather than Small Business Commission’s rules, shall give notice of cation for a new FM station in Key West Assistance Corporation of Panama City, the hearing within the time and in the should be set aside and returned to pend­ Florida. manner prescribed in such rule and ing status “until the Commission deter­ 2. To determine whether Panhandle shall advise the Commission thereof as mines the course to be taken in this Broadcasting Company, Inc., or any of required by § 1.594(g) of the rules. matter.” By Memorandum Opinion and its officers and directors knew or should 13. I t is further ordered, That the Sec­ Order In re application of Panhandle have known the actual facts concerning retary of the Commission send a copy Broadcasting Company, Inc. (FCC 73- the relationship of the Small Business of this Order by Certified Mail-Return 1025), we designated Panhandle’s license Assistance Corporation and L. Charles Receipt Requested to Hertz Broadcast­ application for hearing on qualifications Hilton to Panhandle Broadcasting Com­ ing of Birmingham, Inc., licensee of pany, Inc. WENN and WENN—PM, and Johnston 1 Florida Keys Broadcasting Corporation is 3. To determine in light of the evi­ Broadcasting Company, licensee of the licensee of stations WKIZ (AM) and dence adduced pursuant to the above WJLD, Fairfield, and WJLN, Birming­ W FYN-FM , Key West, Florida. issues whether Panhandle Broadcasting

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 NOTICES 33325

Compl y , Inc., or its officers and direc­ tions. Petitioner requests that it be The Commision orders tors complied with the requirements of granted special relief from the area rate For the reasons set forth above, the section 1.615 of the rules to report the ceiling in Opinion No. 607, Docket Nos. order issued October 1, 1973, in the true facts as to actual ownership as soon AR67-1, et al., issued October 29, 1971, above-entitled proceedings is vacated. and seeks to collect from Colorado Inter­ as these facts were known. By the Commission. 4. To determine in light of the evi­ state Gas Company, its pipeline pur­ dence adduced pursuant to the foregoing chaser, a price of 40 cents per Mcf, plus [ s e a l ] K e n n e t h F. P l u m b , issues whether Panhandle Broadcasting x/20 per Mcf per year escalation, with Secretary. Company, Inc., or its officers and direc­ Btu adjustment, for gas sold under its [FR Doc.73-25511 Filed ll-30-73;8:45 am ] tors misrepresented facts as to the FPC Gas Rate Schedule No. 110 from the ownership of Panhandle Broadcasting Minnie B. Ross No. 2 Well to be drilled Company, Inc., and, if so, whether such in section 28-5N-9ECN, Cimmarron [Docket Nos. CI74-116, CI74-117] misrepresentations of fact were willful, County, Oklahoma. The net rate after 3EREN CORP. material, or repeated. Btu adjustment would be 32.6 cents per Order Providing for Hearing, Consolidating 5. To determine in light of the evi­ Mcf. Petitioner proposes to drill said well Proceedings, Permitting Interventions dence adduced pursuant to the foregoing and Prescribing Procedures issues whether Panhandle Broadcasting in order to hold its l 3ase, and estimates Company, Inc., has the requisite qualifi­ that there is a potential gross reserve N o v e m b e r 26, 1973. cations to be a licensee of the Commis­ of 500 MMCF of natural ^as, all of On April 15,1971, the Commission, act­ sion and whether grant of its application which will be lost to interstate commerce ing pursuant to the authority of the for license would serve the public inter­ if the well is not drilled. Natural Gas Act, as amended, particu­ est, convenience, and necessity. Any person desiring to be heard or to larly Sections 4, 5, 7, 8,10, and 16 thereof 6. To determine in light of the evi­ make any protest with reference to said (52 Stat. 822, 823, 824, 825, 826, 830; 56 dence adduced pursuant to the foregoing petition should on or before December 18, U.S.C. 717c, 717d, 717f, 717g, 717i, and issues, whether Brannen and Brannen 1973, file with the Federal Power Com­ 717), issued Order 431 promulgating a has the requisite qualifications to be a mission, Washington, D.C. 20426, a peti­ Statement of General Policy with respect permittee of the Commission and whether tion to intervene or a protest in accord­ to the establishment of measures to be grant of its application for a construc­ ance with the requirements of the taken for the protection of as reliable tion permit for a new FM station in Key Commission’s rules of practice and pro­ and adequate service as present natural West, Florida, would serve the public in­ cedure (18 CFR 1.8 or 1.10). All protests gas supplies and capacities will permit. terest, convenience, and necessity. filed with the Commission will be con­ On August 20,1973, Beren Corporation 5. It is further ordered, That the speci­ sidered by it in determining the appro­ (Applicant) filed in Docket Nos. CI74- fication of issues herein shall supersede priate action to be taken will not serve 116 and CI74-117 applications pursuant the specification of issues in the Commis­ to make the protestants parties to the to section 7(c) of the Natural Gas Act sion’s Memorandum Opinion and Order proceeding. Any party wishing to become and section 2.70 of the Commission’s of October 3,1973, in this proceeding. a party to a proceeding or to participate General Policy and Interpretations 6. It is further ordered, That Brannen as a party in any hearing therein must thereunder for two year limited term cer­ and Brannen’s petitions for stay and re­ file a petition to intervene in accord­ tificates of public convenience and neces­ consideration are granted to the extent ance with the Commission’s rules. sity with pre-granted abandonment au­ thorizing the sale of natural gas to El indicated above, and are denied in all K e n n e t h F. P l u m b , other respects. Secretary. Paso Natural Gas Company (El Paso) from acreage in Lea County, New Mexico, 7. It is further orderd, That Brannen [FR Doc.73-25495 Filed ll-30-73;8:45 am] and Brannen shall file a written appear­ and Eddy County, New Mexico, respec­ ance stating an intention to appear and tively. The limited term certificate applica­ present evidence on the specified issues, [Docket Nos. R I—71-1154, et al.] within the time and in the manner re­ tions provide fou, Applicant to sell ap­ quired by § 1.221(c) of the rules. ATLANTIC RICHFIELD CO., ET AL. proximately 1,000 Mcf of gas per day in Docket No. CI74-116 and approximately Order Vacating Order 8. It is further ordered, That Brannen 2,000 Mcf of gas per day in Docket No. and Brannen shall give notice of the N o v e m b e r 23, 1973. CI74-117, all at 55.0 cents per Mcf (14.65 hearing within the time and in the man­ By order issued October 1, 1973, we p.s.i.a.), subject to upward and down­ ner specified in § 1.594 of the rules, and terminated the above-entitled proceed­ ward Btu adjustment from a 1,000 Btu shall seasonably file the statement re­ base. quired by § 1.594(g). ings relating to sales of natural gas in Southern Louisiana under the erroneous Applicant states that it commenced Adopted: November 21,1973. impression that the proposed rates ex­ the sales of gas to El Paso from both areas on July 1,1973, pursuant to § 157.29 Released: November 28,1973. ceeded the ceilings prescribed in Opinion No. 598, but had not been placed in effect of the. Commission’s regulations and pro­ F e d e r a l C ommunications subject to refund.1 Further review, how­ poses to continue the sales for two years C o m m i s s i o n , ever, indicates that these increased rate from the end of the sixty day emergency [ s e a l ] V i n c e n t J. M u l l i n s , filings do not exceed the ceilings under periods. Secretary. Opinion No. 598. In Order 431, the Commission amended [FR Doc.73-25547 Filed ll-30-73;8:45 am ] In view of the foregoing and the fact Part 2, Subchapter A, General Rules, that judicial review of Opinion No. 598 Chapter I, Title 18 of the Code of Fed­ FEDERAL POWER COMMISSION has not yet come to an end,2 it would eral Regulations by adding a new § 2.70, not be appropriate to terminate these which, in part, reads: [D o c k e t N o . R I7 4 -5 5 ] proceedings at this time, and we shall (3) The Commission recognizing that ad­ ASHLAND OIL, INC. vacate our October 1 order. ditional short-term gas purchases 'may still be necessary to meet the 1971-1972 demands, Notice of Petition for Special Relief will continue the emergency measures re­ N o v e m b e r 26,1973. 1 M o b il O il C o rp o ra tio n o n O c to b e r 25, 1973, ferred to earlier for the stated 60-day period. If the emergency purchases are to extend Take notice that on October 24, 1973, filed an application for rehearing of the October 1 order. beyond the 60-day period, paragraph 12 in Ashland Oil, Inc. (Petitioner), P.O. Box 2 The Court in Placid Oil Co., et al. v. the Notice issued by the Commission on 1503, Houston, Texas 77001, filed a peti­ FJ?.C. (CA5 No. 71-2761, decided April 16, July 17,1970, in Docket No. R —389A should be tion for special relief in Docket No. RI74- 1973) affirmed Opinion No. 598. However, pe­ utilized (35 FR 11638). The Commission will 55, pursuant to section 2.76 of the Com­ titions for certiorari have been filed with the consider if the pipeline demonstrates emer­ mission’s general policy and interpreta­ United States Supreme Court. gency need * * *

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Paragraph 12 of R-389A provided, in ent or future convenience and necessity petition to intervene. Copies of this filing part, that applicants, requesting certifi­ requires the issuance of limited-term are on file with the Commission for pub­ cates for sales of natural gas in excess of certificates for the sales of natural gas lic inspection. the ceiling or guideline rate, shall state on the terms proposed in these applica­ K e n n e t h F . P l u m b , the grounds for claiming that the present tions and whether the issuance of said Secretary. or future public convenience and neces­ certificates should be conditioned in any sity requires issuance of certificates on way. [FR Doc.73-25510 Filed ll-30-73;8:45 am] the terms proposed in the applications. (C) El Paso Natural Gas Company and The applications in this proceeding Southern California Gas Company are [Docket No. CF74-123] hereby permitted to become interveners represent a significant volume of gas po­ COLORADO INTERSTATE GAS CO. tentially available to the interstate mar­ subject to the rules and regulations of ket. It is of critical importance that in­ the Commission; Provided, however, Notice of Application That participation of such interveners terstate pipelines procure emergency N o v e m b e r 26, 1973. supplies of gas to avoid disruption of shall be limited to matters affecting as­ serted rights and interests as specifi­ Take notice that on November 5,1973, service to consumers; nevertheless, we Colorado Interstate Gas Company, a di­ must determine whether the rate to be cally set forth in their petitions to in­ tervene; and, Provided, further, That the vision of Colorado Interstate Corporation paid serves the public convenience and (Applicant), P.O. Box 1087, Colorado necessity. It is therefore necessary that admission of such interveners shall not be construed as recognition by the Com­ Springs, Colorado 80944, filed in Docket these applications be set for public hear­ No. CP74-123 an application pursuant to ing and expeditious determination. The mission that they might be aggrieved be­ cause of any order of the Commission section 7(c) of the Natural Gas Act for hearing will be held to allow presenta­ a certificate of public convenience and tion, cross-examination, and rebuttal of entered in these proceedings. (D) The Applicant and all parties sup­ necessity authorizing Applicant to ex­ evidence by any participant This evi­ change gas with Phillips Petroleum dence should be directed to the issue of porting the applications shall, on or be­ fore December 6,1973, file with the Com­ Company (Phillips) and Natural Gas whether the present or future public con­ Pipeline Company of America (Natural), venience and necessity requires issuance mission and serve on all parties to this proceeding, including Commission Staff, and the construction and operation of of limited-term certificates on the terms certain facilities related thereto, all as proposed in the applications. all testimony to be sponsored in support of the instant applications. more fully set forth in the application We take further note, however, that which is on file with the Commission the Commission in a recent order has (E) A Presiding Administrative Law and open to public inspection. held that an emergency exists on El Judge to be designated by the Chief Ad­ Applicant requests authorization to ex­ Paso’s Southern Division System. See ministrative Law Judge for that purpose change with Phillips and Natural approx­ Skelly Oil Company, J i_PPC ____ [See Delegation of Authority, 18 CFR imately 7,653,000 Mcf annually of nat­ Docket No. CI73-902, Issued on Septem­ 3.5(d) 1 shall preside at the hearings in ural gas on a thermal basis. Under this ber 6, 1973. We conclude, therefore, that this proceeding and shall prescribe rel­ proposed arrangement Applicant is to there is an emergency on El Paso’s evant procedural matters not herein deliver unprocessed raw gas it receives provided. Southern Division System which would from Panhandle Producing Company warrant the issuance of certificates if the By the Commission. (Panhandle) and Mapco Production price conforms to the public convenience Company and Milton F. Schaffer (Map- [ s e a l ] K e n n e t h F . P l u m b , and necessity. co/Schaffer) to Phillips at Applicant’s Secretary. Petitions to intervene in the subject Sanford Compressor Station in Hutch­ proceedings were filed by Southern Cali­ [FR Doc.73-25486 Filed 11-30-73;8:45 am] inson County, Texas. Phillips will receive fornia Gas Company (SoCal) on Sep­ gas into its existing gathering system for tember 10, 1973, and by El Paso on Sep­ [Docket No. E-8471] processing at a remote plant and use in tember 14,1973. Phillips’ local system hi the Hutchinson The Commission finds CENTRAL LOUISIANA ELECTRIC CO., INC. County area. Phillips will redeliver a Compliance Filing thermally equivalent volume of gas to (1) Good cause exists to set for for­ Natural at an existing interconnection mal hearing the applications for limited N o v e m b e r 26, 1973. of their pipeline systems in Hansford term certificates herein. Take notice that Central Louisiana County, Texas, to be credited by Natural (2) The proceedings in Docket Nos. Electric Company, Inc. on November 5, against Applicant’s FPC Rate Schedule CI74-116 and CI74-117 cortain common 1973, tendered for filing a letter agree­ F -l. issues of law and fact and, accordingly, ment with Morgan City, Louisiana re­ Applicant states that it presently re­ good cause exists to consolidate those garding Supplement No. 1 to Supplement ceives approximately 20,000 Mcf p e r day proceedings for the purposes of hearing No. 4 of Rate Schedule FPC No. 25. Since of both sweet and sour gas from Pan­ and decision. the City’s peak load was less than ex­ handle. Said gas in its raw unprocessed (3) It may be in the public interest to pected, the City did not utilize the reserve state is rich in liquid hydrocarbons w hich permit SoCal and El Paso to intervene capacity provided for in Supplement No. must be stripped by Panhandle a t its in this proceeding. 1 to Supplement No. 4. Therefore, pay­ Henderson Plant in order to meet pipe­ The Commission orders ments made to the Company for antic­ line specifications. Applicant states that ipated requirements will be returned to this plant is old and inefficient am bien t CA) The proceedings in Docket Nos. the City. temperature absorption plant w h ic h is CI74-116 and CI74-117 are hereby con­ Any person desiring to be heard or to expensive to operate and maintain. U n d er solidated for purposes of hearing and protest said filing should file a petition to the proposed gas exchange P a n h a n d le decision. intervene or protest with the Federal will deliver unprocessed gas to A p p lic a n t (B) Pursuant to the authority con­Power Commission, 825 North Capitol for compression and delivery to P hillip s tained in and subject to the authority Street NE., Washington, D.C. 20426, in permitting Panhandle to shut d o w n its conferred upon the Federal Power Com­ accordance with §§ 1.8 and 1.10 of the Henderson Plant. The application states mission by the Natural Gas Act, includ­ Commission’s rules of practice and pro­ that funds released by this closing will ing particularly sections 7, 15, and 16, cedure (18 CFR 1.8 and 1.10). All such then be available to Panhandle f o r use and the Commission’s rules and regula­ petitions or protests should be filed on or in installing field ‘compression and m ak ­ tions under that Act, a public hearing December 7, 1973. Protests will be con­ ing repairs on Panhandle’s g a th e rin g shall be held commencing December 18, sidered by the Commission in determin­ field. at 10 a.m. (e.s.t.) at a hearing room of ing the appropriate action to be taken, Applicant proposes to increase the cur­ the Federal Power Commission,' 825 but will not serve to make protestants rent price paid to Panhandle for said North Capitol Street NE., Washington, parties to the proceeding. Any person gas from 17 cents to 26.3 cents per Mcf D.C. 20426, concerning whether the pres­ wishing to become a party must file a pursuant to an amendment to the Gas

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Purchase Contract between the parties, unnecessary for Applicant to appear or 7. New York State Electric & Gas Corpo­ be represented at the hearing. r a t io n (N Y S E G ) ; filed A u g u s t 30, 1973. dated July 23,1973.x 8 . Orange and Rockland Utilities, Inc., Applicant states further that existing K e n n e t h F. P l u m b , (O r a n g e & R o c k la n d ); file d A u g u s t 27, 1973. facilities at its Sanford Station are in­ Secretary. 9. U G I Corporation (U G I) ; filed August 17, adequate to meet the conditions required 1973*. by this new arrangement. Applicant [PR Doc.73-25500 Filed ll-30-73;8:45 am ] 10. W a s h in g t o n G a s L ig h t C o m p a n y (W a s h ­ therefore requests authorization to con­ ington); filed August 2Ì, 1973. struct and operate two gas scrubbers, an [Docket Nos. RP73-86, RP73-85] UGI contends that in essence, Staff aerial cooler, liquid reinjection facilities, COLUMBIA GAS TRANSMISSION CORP. proposes a collateral attack on certificate and approximately 1,000 feet of 16-inch authorization which has been issued by piping which will be used to reroute the AND COLUMBIA GULF TRANSMISSION CO. this Commission almost from the begin­ gas within the Sanford yard area and ning of thè operation of the Natural Gas deliver condensate liquids to Phillips. Order Granting, in Part, 'Motion To Examine Act. Applicant states that the total cost of Conjunctive Billing Practices and Con­ UGI says that it would seem the Com­ all f acilities proposed in this application solidating the Issue of the Imposition of mission has indicated it might deal with is estimated to be $121,959, which will be Volumetric Limitations conjunctive billing on a much broader financed by Applicant ^from Available N o v e m b e r 23, 1973. basis in Rulemaking Docket No. R-467. working funds, funds from operations, UGI suggests that until the decision is short-term borrowing, or long-term fi­ By order of April 13,1973, we accepted proposed tariff changes filed by Colum­ rendered in Southern Natural Gas Co., nancing. Docket No. RP72-91, it would be a need­ Applicant anticipates a substantial gas bia Gas Transmission Corporation (Co­ lumbia) in RP73-86, suspended the effec­ less expense to Columbia and its cus­ supply deficiency in both peak day and tive date thereof, consolidated RP73-86 tomers, as well as a needless burden on annual requirements on its system begin­ an already overburdened Commission, to ning in fiscal 1975. Applicant states that with the pending RP73-85 case of Colum­ bia Gulf Transmission Company, and try the same issue either in this case or the proposed gas exchange will assist Ap­ in a separately instituted proceeding. plicant in maintaining its existing gas ordered a hearing on the issues raised. Staff has moved that the issue of con­ UGI points out that following suspension supplies. junctive billing on the Columbia system for the full statutory period Columbia’s Any person desiring to be heard or to be addressed in this or a companion newly proposed rates are scheduled to make any protest with reference to said become effective September 14, 1973. application should on or before Decem­ proceeding. After stating that the Commission re­ Columbia Distribution Companies op­ ber 18, 1973, file with the Federal Power poses Staff’s motion, arguing that a Commission, Washington, D.C. 20426, a cently has required that the issue of con­ junctive billing practices be examined in multiplicity of delivery points exist on petition to intervene or a protest in ac­ the Columbia Distribution Companies cordance with the requirements of the pipeline rate proceedings [El Paso Na­ tural Gas Company, Docket Nos. RP71- because of historic development. In Commission’s rules of practice and pro­ Docket No. CP71-132, according to Co­ cedure (18 CFft 1.8 or 1.10) and the Reg­ 137 and RP72-151, Order issued Novem­ ber 7, 1972; Texas Eastern Transmis­ lumbia Distribution Companies, the ulations under the Natural Gas Act (18 Commission authorized numerous points CFR 157.10). All protests filed with the sion Company, Docket No. RP72-98, Order issued June 28, 1973], Staff states of delivery related to various realignment Commission will be considered by it de­ steps. termining the appropriate action to be its belief that it is appropriate to try herein the issue of the justness and rea­ Columbia Distribution Companies also taken but will not serve to make the pro- say that the establishment of volumetric testants parties to the proceeding. Any sonableness of conjunctive billing with respect to Columbia. Staff states that limitation at each of the delivery points person wishing to become a party to a would be unmanageable and impossible proceeding or to participate as a party in Columbia’s tariff does not provide for maximum amounts of gas to be delivered to control, and that elimination of these any hearing therein must file a petition small delivery points would require un­ to intervene in accordance with the Com­ at each delivery point of Columbia’s multi-delivery point customers. necessary duplication of facilities or an mission’s rules. acquisition of jurisdictional pipeline Take further notice that, pursuant to Staff’s motion is opposed by the facility. the authority contained in and subject to following: It is also stated that several Columbia the jurisdiction conferred upon the Fed­ 1. Baltimore Gas & Electric Co. (Balti­ Distribution Companies have installed eral Power Commission by sections 7 and more) ; filed August 17,1973. peak-shaving facilities in localized areas 15 of the Natural Gas Act and the Com­ 2. J o in t— to protect current total daily entitle­ mission’s rules of practice and procedure, (a) The Cincinnati Gas and Electric Co., ments and that elimination of conjunc­ a hearing will be held without further (Cincinnati) filed August 29, 1973. (b) The Union Light, Heat & Power Co. tive billing would not permit the utili­ notice before the Commission on this zation of these facilities to operate the application if no petition to intervene is ( U n i o n ) . 3. J o in t— plants in certain areas and balance load filed within the time required herein, if (a) Columbia Gas of orno, requirements in other areas. the Commission on its own review of the I n c ______Baltimore in addition to supporting matter finds that a grant of the certifi­ (b) The Ohio Valley Gas the position of UGI, also supports the C o m p a n y ______answer filed by Columbia Distribution cate is required by the public conven­ (c) Columbia Gas of Pa., (C o lu m b ia I n c ______Companies. Also, Baltimore says the ience and necessity. I f a petition for leave D is t r ib u ­ (d) Columbia Gas of N.Y., delivery points enable it to peak shave to intervene is timely filed, or if the Com­ t io n C o m ­ I n c ______.___ and supply certain areas of its distribu­ p a n ie s ) mission on its own motion believes that (e) Columbia Gas of West filed tion system and balance the load re­ V a ., I n c ______a formal hearing is required, further no­ S ep t. 4, quirements in other areas, resulting in a (f) Columbia GaS of Va., tice of such hearing will be duly given. 1973. more even distribution of gas require­ Under the procedure herein provided I n c ______ments for its entire system. (g) Columbia Gas of Ky., Columbia in opposing Staff’s motion ior, unless otherwise advised, it will be I n c __ ___ ¿i.______- (h) Columbia Gas of Md., contends that the consolidated proceed­ I n c ______ings of Columbia in Docket No. RP73-86 1 Applicant states this price Includes 14.5 and of Columbia Gulf Transmission cents p er M c f w h ic h is t h e effective a re a c e il­ 4. C o lu m b ia — file d A u g u s t 15, 1973. Company in Docket No. RP73-85 (pend­ ing price, 9.3 cents for gathering system cost 5. Commonwealth Natural Gas Corpora­ and maintenance, and an additional cents ing rate increase filings and hearing to 2.5 tion (Commonwealth) ; filed September 4, per Mcf as an exploration and development take place thereon) represent the prop­ incentive for Panhandle. Applicant will be 1973. er form for the trial of all issues rela­ reimbursed 0.4 cent per Mof as consideration 6 . Dayton Power & Light Company (Day- tive to Columbia’s rates and billing pro­ ior compressing and handling the raw gas. ton Co.) ; filed August 30,1973. cedures. Thus, there is no justification

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 33328 NOTICES

for the initiation of a show cause pro­ conjunctive billing, including but not and the proposed new rates, and the es­ ceeding, since any party including Staff limited to evidence relating to whether timated sales volume and comparative is free to raise the issue of conjunctive daily and/or annual volumetric limits revenues for the twelve-month period billing at said hearing. should be established on each Columbia succeeding the effective date. Columbia says that its grid system cur­ delivery point, and if so, the appropriate Consolidated submits that the higher rently has 1,845 points of delivery to its limitation for each. rates should be permitted to become ef­ 76 wholesale customers. Columbia refers The Commission orders: fective as of October 1, 1973, in accord­ to the same history that Columbia Dis­ (A ) Staff’s Motion is granted to the ance with the Commission’s July n, tribution Companies did above and extent set forth in this order and in all 1971, Southern Louisiana Area rate says similarly that elimination of con­ other respects is denied. decision, notwithstanding submission of junctive billing cannot be the proper way (B) The hearings held in this consoli­ the Tariff Sheets involved subsequent to to carry out the Commission’s end-use dated docket shall be pursuant to the their proposed effective date, due in part objectives. authority of sections 4, 5, and 7 of the to inadvertence and in part to conflict­ Dayton Company besides supporting Natural Gas Act, and the decision ing engagements of counsel concerned. UGI’s answer, supports in principle the reached herein shall determine rate and Wherefore, Consolidated requests waiver answer of Columbia, Washington and certificate issues relating to the practice of any rules and regulations of the Com­ Baltimore, and says that its present total of conjunctive billing on the Columbia mission as may be necessary to permit daily entitlement from Columbia is 543,- system. the enclosed Tariff Sheets to become 000 Mcf. I f conjunctive billing were elim­ By the Commission. effective as proposed. inated, the total of the total entitle­ Consolidated certifies that copies of ments for each delivery point would have [ seal] Kenneth P. Plumb, the Tariff Sheets involved have been to be more than 543,000 Mcf because of Secretary. mailed to each purchaser as applicable the élimination of diversity and because [FR Doc.73-25514 Filed 11-30-73;8:45 am ] under each respective Rate Schedule. of the restricted economic capacity of the Any person desiring to be heard or to propane facilities. Thus, all of the Dayton protest said filing should file a petition Company’s consumers would have to pay [Docket No. RP74-38] to intervene or protest with the Federal the higher gas prices caused by thé de­ CONSOLIDATED GAS SUPPLY CORP. Power Commission, 825 North Capitol terioration of billing load factors. Street NE, Washington, D.C. 20426, in Commonwealth says that all of its pur­ Rate Increase Changes accordance with §§ 1.8 and 1.10 of the chases from Columbia are delivered at N o v e m b e r 26, 1973. Commission’s rules of practice and pro­ one billing point. Commonwealth be­ Take notice that on November 7, 1973, cedure (18 CFR 1.8, 1.10). All such lieves that Staff’s attempt to impose con­ Consolidated Gas Supply Corporation petitions or protests should be filed on junctive billing is solely a means of con­ (Consolidated) tendered for filing the or before December 5, 1973. Protests will serving gas during the current shortage following Tariff Sheets to its FPC Gas be considered by the Commission in de­ and says that if so, its application will Tariff, Original Volume No. 3: termining the appropriate action to be capricious in the extreme and discrim­ be taken, but will not serve to make pro- inatory against many customers. Bate testants parties to the proceeding. Any We agree with Columbia that a sepa­ schedules person wishing to become a party must Tariff sheets transmitted: involved rate proceeding to determine issues re­ file a petition to intervene. Copies of lating to conjunctive billing is neither Second Revised Sheets Nos. 80 through this filing are on file with the Commis­ 83 ______.______F -8 necessary nor appropriate. These issues Third Revised Sheets Nos. 143 through sion and are available for public may be fully examined, and indeed they 146 ______F —10 inspection. should be fully examined, in the con­ Second Revised Sheets Nos. 228 through Kenneth F. Plumb, solidated RP73-86 dockets. We also agree 231 ______— F —12 Secretary. with Staff, however, that should the deci­ Second Revised Sheets Nos. 440 and sion in Docket No. RP73-86 be one re­ 441, a n d ______i______! ------[FR Doc.73-25483 Filed ll-30-73;8:45 am] quiring modification or elimination of ex­ Third Revised Sheets Nos. 442 and 443 ______.______;------F —17 isting billing practices, ^ concurrent [Docket No. RP72-134] changes in Columbia’s certificate au­ Consolidated states that these Tariff thorization may be necessary to effec­ Sheets are submitted pursuant to the EASTERN SHORE NATURAL GAS CO. tuate such a decision. provisions of section 4 of the Natural Proposed Changes in Rates and Charges We express no position on the merits, Gas Act and the Commission’s regula­ November 26, 1973. or demerits, of conjunctive billing as tions thereunder particularly § 154.94, practiced on the Columbia system; We Changes in Rate Schedules (18 CFR Take notice that Eastern Shore Natu­ believe, however, that this matter should 154.94), and § 154.105, Area Rates— ral Gas Company (Eastern) on October be explored in an evidentiary hearing, Southern Louisiana ■ Area (18 CFR 29, 1973, tendered for filing to its FPC and that orderly administration of our 154.105), the latter as promulgated by Gas Tariff, Original Volume 1, Fifth Re­ responsibilities under the Natural Gas the Commission’s Opinion No. 598 and vised Sheet No. 3A and Fifth Revised Act requires that such a hearing take accompanying Order issued July 16, PGA-1, to become effective D ecem ber 1, place in a procedural framework which 1971, as amended, in Docket Nos. AR61-2 1973. The above revised tariff sheets will permit implementation of our deci­ et al., and AR69-1 (Southern Louisiana would increase the demand and capacity sion, whatever it may be. Area), determining just and reasonable volume charges of Eastern’s rate sched­ Accordingly, we modify our order of rates for natural gas produced in the ule GSS-1 by 1.00 and .0020 respec­ April 13, 1973, to give notice that the Southern Louisiana Area. Consolidated tively, per Mcf. This increase reflects the hearing held shall be pursuant to the au­ states that the Sheets embody changes purchased gas cost increase by Trans­ thority of section 7 of the Natural Gas in the referred-to Rate Schedules to in­ continental Gas Pipe Line Corporation Act, as well as sections 4 and 5 thereof, crease the rates to be charged there­ on October 15,1973, in-Docket No. RP73- and the final decision reached herein under, effective as of October 1, 1973, by 3, to be effective December 1, 1973. shall determine whether or not any the one-half cent (0.50) per Mcf upward Eastern requested that the notice re­ amendment of Columbia’s certificates of adjustment in the base area rates ex­ quirements of § 154.51 of the Regulations public convenience and necessity is re­ pressly provided for gas sold under con­ under the Natural Gas Act be waived to quired to implement and make effective tracts dated prior to October 1, 1968 (18 permit these tariff increases as of 'De­ a Commission decision on conjunctive CFR 154.105(c) (’3)), such higher rates cember 1,1973. billing practices. All parties, and Staff, being permitted by the contract provi­ Any person desiring to be heard or to shall present such evidence in this pro­ sions of the said Schedules. According to »rotest said filing should file a petition to ceeding as they may choose, bearing on Consolidated, the Sheets set forth for the ntervene or protest with the Federal rate and certificate issues relating to respective /Rate Schedules the current *ower Commission, 825 North Capitol

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 NOTICES 33329

Street, NE. Washington, D.C. 20426, in Commission’s orders of October 16, 1960 on or before December 7, 1973, file with the Federal Power Commission, Wash­ accordance with §§ 1.8 and 1.10 of the (24 FPC 134), and September 21, 1973 Commission’s Tules of practice and pro­ (50 F P C ____), authorizing the importa­ ington, D.C. 20426, a petition to inter­ cedure (18 CFR 1.8, 1.10). All such peti­ tion of natural gas from Canada pur­ vene or a protest in accordance with the tions or protests should be filed on or suant to Section 3 of the Natural Gas requirements of the Commission’s rules before November 31, 1973. Protests will Act by authorizing the importation of of practice and procedure (18 CFR 1.8 or be considered by the Commission in additional volumes of natural gas at the 1.10). All protests filed with, the Com­ determining the appropriate action to Kingsgate, British Columbia, import mission will be considered by it in de­ be taken, but will not serve to make pro­ point, all as more fully set forth in the termining the appropriate action to be testants parties to the proceeding. Any petition to amend which is on file with taken but will not serve to make the pro­ person wishing to become a party must the Commission and open to public in­ testants parties to the proceeding. Any person wishing to become a party in any file a petition to intervene. Copies of this spection. filing are on file with the Commission The Commission’s order in Docket No. hearing therein must file a petition to intervene in accordance with the Com­ and are available for public inspection. G-18033 authorized El Paso to import into the United States at the Kingsgate mission’s rules. K e n n e t h F. P l u m b , import point 151,731 Mcf of gas on a Secretary. K e n n e t h F. P l u m b , peak day and 51 million Mcf of gas an­ Secretary. [FR Doc.73-25494 F ile d ll-30-73;8:45 a m ] nually purchased from Westcoast Trans­ mission Company Limited (Westcoast). [FR Doc.73-25505 FUed ll-30-73;8:45 am] By its order in Docket No. CP73-331 et [Docket No. RP73-104] al., the Commission authorized Northwest [Docket No. E-8121] EL PASO NATURAL GAS CO. to continue this importation from Canada upon the conveyance of El GULF STATES UTILITIES CO. Filing of Motion To Place Tariff Sheets in Paso’s Northwest Division System to Order Denying Rehearing, Denying Motion Effect Northwest. El Paso and Northwest are for Stay and Clarifying Prior Order N o v e m b e r 26, 1973. also authorized to import at Sumas, N ovember 23, 1973. Take notice that on October 30, 1973, Washington, natural gas purchased from Westcoast. By order of August 7, 1973, the Com­ El Paso Natural Gas Company filed with mission granted rehearing of its order the Commission a motion to have certain Petitioners state that Westcoast has of June 14,1973, in this docket, to South­ tariff sheets to its FPC Gas Tariff, Origi­ notified Petitioners that it anticipates nal Volume No. 1 and Original Volume curtailing deliveries of natural gas to west Louisiana Electric Membership No. 2A placed in effect as of November 2, El Paso’s Northwest Division System by Corporation (Southwest) pending fur­ 1973. The tariff sheets set forth rate approximately 120,000 Mcf per day at the ther consideration and action upon a levels identical to those suspended in this Sumas import point. Petitioners state letter agreement (Agreement) between docket, by Commission Order of June 1, that this curtailment will impair El Southwest and Gulf States Utilities Com­ 1973, until November 2, 1973, modified to Paso’s ability to render firm service to pany (Gulf States) filed May 4, 1973, in include a uniform increase of 4.94^ per its Northwest Division customers. Ac­ Docket No. E-8179. At issue was South­ Mcf above the levels originally filed in cording to Petitioners, Westcoast can west’s contention, in a July 13, 1973, ap­ this docket to reflect the approval of such deliver to El Paso during the term end­ plication for rehearing, that this Agree­ increase by the Commission’s Order of ing October 31, 1974, at the Kingsgate ment extends the term of Southwest’s October 16, 1973, in Docket Nos. RP72- import point approximately 30,000 Mcf of contract with Gulf States (FPC Rate 150 and RP 72-155. gas on an average day and on a peak day Schedule No. 72) at the rates and Any person desiring to be heard or to approximately 120,000 Mcf of «as which charges contained in the contract and protest said filing should file comments it will obtain from Alberta and Southern eliminates the contract demand ceiling. with the Federal Power Commission, 825 Gas Company Limited (Alberta). Peti­ Such an amendment to the contract North Capitol Street NE., Washington, tioners state that El Paso and ultimately would have an effect upon the treatment D.C. 20426, in accordance with §§ 1.8 and Northwest will purchase the additional of a general rate increase filed by Gulf 1.10 of the Commission’s rules of prac­ volumes of gas on a cost-of-service basis States in this docket on April 10, 1973, tice and procedure (18 CFR 1.8, 1.10). pursuant to El Paso’s gas purchase con­ applicable to a ¿lumber of municipal and All such comments should be filed on or tract with Westcoast dated September cooperative customers, including South­ before November 30, 1973. Protests will 23,1960. The price of the gas is estimated west. In its June 14 order, the Commis­ be considered by the Commission in de­ to be about 45.0 cents per Mcf and in­ sion treated the contract as fixed rate termining the appropriate .action to be cludes the average cost of the gas re­ and rejected the proposed rate increase taken. Those previously permitted to be­ ceived from Alberta, the price of except as the increase would apply to come a party need not file a petition to transporting it to Kingsgate, plus an ad­ amounts of deliveries sold above the con­ intervene. Copies of this filing are on file ditional 10 percent. The cost of the addi­ tract demand ceiling. For these amounts, with the Commission and are available tional volumes of gas would be passed the proposed rates were treated as initial for public inspection. on to El Paso’s Northwest Division cus­ rates. tomers via the purchased gas cost ad­ By order of August 8, 1973, the Com­ K e n n e t h F. P l u m b , justment provision of the general terms mission accepted for filing the Agree­ Secretary. and conditions of El Paso Natural Gas ment in Docket No. E-8179, to be effec­ [PR Doc.73-25507 Filed ll-30-73;8:45 am ] Company’s FPC Gas Rate Tariff, First tive as of August 1,1973, and consolidated Revised Volume No. 3. that docket with this docket, but only for the purpose of investigating, under [Docket Nos. G —18033, CP73-332] Petitioners seek authorization to im­ port this additional gas to reduce the section 206 of the Federal Power Act, the EL PASO NATURAL GAS CO. AND impact of Westcoast’s curtailment of gas justness and reasonableness of the fuel NORTHWEST PIPELINE CORP. at the Sumas import point, and state that clause proposed. Petition To Amend Orders the gas will be used by El Paso and sub­ By order of October 19, 1973, in this sequently by Northwest to serve only docket the Commission denied South­ N o v e m b e r 23, 1973. existing customers. west’s petition for rehearing of the Take notice that on November 16,1973, It appears reasonable and consistent June 14 order, but found that the Agree­ El Paso Natural Gas Company (El Paso), with the public interest in this case to ment does extend Southwest’s contract P.O. Box 1492, El Paso, Texas 79978, and prescribe a period shorter than 15 days (until August 1, 1983) and does remove Northwest Pipeline Corporation (North­ for the filing of protests and petitions to the limitations as to demand in the con­ west), P.O. Box 1526, Salt Lake City, intervene. Therefore, any person desir­ tract. The Commission found that since Utah 84110, filed in Docket Nos. G-Ì8033 ing to be heard or to make any protest the Agreement becomes effective as of and CP73-332 a petition to amend the with reference to said application should August 1, 1973, there is, after that date,

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no demand ceiling in Southwest’s con­ the letter Agreement, the cases cited by The Commission finds: The applica­ tract. The rates to be charged for all Gulf States do not support its contention tion for rehearing and other relief filed amounts of demand after August 1 are, that fixed rate contracts may be abro­ by Gulf States on October 26, 1973, and therefore, those fixed rates charged gated upon unilateral application by one the motion for stay filed on November 8, under the contract. of the parties.3 These cases concern the 1973, should be denied except as to thé On October 26, 1973, Gulf States filed legal right of certain state commissions to requested clarification of the Commis­ an application for rehearing, motion for abrogate private contracts pursuant to sion’s order of October 19, 1973. investigation, hearing and extraordinary state police powers. These commissions The Commission orders: (A) The Ap­ relief, and motion for clarification of are characterized in the decisions as plication for rehearing and other relief order (Application). The Application “rate making’’ commissions. The crucial filed by Gulf States on October 26, 1973, states that nothing in Gulf States’ filing distinction in character between these is hereby denied except as to the request of the Agreement in Docket No. E-8179 regulatory agencies and this Commission for clarification. or in the Commission’s August 8 order is discussed at some length in the Mobile (B) The Commission’s Orders Deny­ accepting such Agreement for filing re­ case*, where sections 4 and 5 of the ing Rehearing of October 19, 1973, is flects any intention or understanding by Natural Gas Act (which are analogous to hereby clarified to confirm that the fixed Gulf States or Southwest that such let­ sections 205 and 206 of the Federal Power contract rates as applicable to all sales ter Agreement was intended to fore­ Act) were construed by the Supreme of energy made under the Southwest close Gulf States from seeking rate relief Court. We believe that our construction contract after August 1, 1973, shall be by unilateral application to the Com­ of the contract and Agreement in ques­ a subject of the Section 206 investigation mission. Gulf States points out that the tion was required by the Mobile-Sierra previously instituted in this docket. Commission had already found on cases and that there is nothing in the (C) The motion for stay filed by Gulf June 14 that such a right existed at least general of law contract which would alter States on November 8, 1973, is denied. as to deliveries in excess of the contract such construction. > (D) The Secretary shall cause prompt maximum stated in Article H I of the Gulf States asks that the Commission: publication of this order in the F ederal original contract, and such stated max­ (1) reconsider its finding that the letter R e g i s t e r . imum was not dealt with in the 1970 Agreement removes the limitations-as to letter Agreement. Gulf States further demand in the contract; (2) institute By the Commission. alleges that there is an inconsistency in our investigation with regard to the ap­ [ s e a l ] K e n n e t h F . P l u m b , now ordering that the new rates may plication of the proposed rates to deliv­ Secretary. not be imposed by the Company on ex­ eries in excess of the contract maximum cess deliveries after August 1,1973, when limits; and, (3) clarify the October 19 IFR Doc. 73-25515 Filed 11-30-73:8:45 am] the Commission had so authorized such order to confirm that the section 206 charge on June 14, and that the result investigation, originally ordered on [Docket No. E-8055] the Commission reaches is inconsistent June 14 to determine whether or not the IDAHO POWER CO. with other cases.1 Finally, Gulf States rates charged under the fixed rate con­ suggests that the construction of the con­ tract'are in the public interest, will also Proposed Stipulation and Offer of tract and the letter Agreement must be apply to the fixed rates now charged for Settlement made within the context of Louisiana all sales under the Southwest contract. N o v e m b e r 26, 1973. contract law. For the above discussed reasons, we shall Nowhere have we suggested that the Take notice that on October 9, 1973, deny all but Gulf States final request. as supplemented on November 9, 1973, letter Agreement filed in Docket No. The fixed contract rates applicable to all E-8179, evinces an intent by either of Idaho Power Company filed in this sales under the Southwest contract after docket a proposed stipulation and offer of the parties to foreclose Gulf States from August 1, 1973, shall be a subject of in­ seeking rate relief. It does, however, settlement. The subject settlement pro­ vestigation under the section 206 pro­ posal, if approved, would resolve a ll is­ evince an intent to remove, after Au­ ceeding previously instituted in this gust 1, the demand ceiling in the orig­ sues in this proceeding. docket. Any person wishing to do so may inal contract. Our interpretation of the On November 8, 1973, Gulf States also effect of such removal, in light of the submit comments with respect to the filed a motion for stay of the October 19 proposed offer of settlement on or before directives of the Mobile-Sierra cases, is order, wherein Gulf States states that that the fixed contract rates must as a December 21, 1973. The settlement pro­ it has been charging Southwest for serv­ posal is on file with the Commission and result be applied to all amounts of de­ ice above the contract maximum demand available for public inspection. mand after August 1. The Commission’s at the initial rates which were originally June 14 order only addressed itself to permitted in the Commission’s June 14 K e n n e t h F . P l u m b , the contract between the parties as it order. The Company requests that it be Secretary. existed prior to the August 1 effective allowed to continue such practice pend­ [FR Doc.73-25508 Filed 11-30-73:8:45 am] date of the Agreement amending the ing the outcome of the investigation pur­ contract. Thus there is no inconsistency suant to Section 206 which has been in the Commission’s action of October 19. instituted in this docket. As previously [Docket No. OI74r-294] We also find no inconsistency with the discussed, the initial rates allowed by LARIO OIL & GAS CO. prior Commission orders which Gulf the Commission’s June 14 order have Notice of Application States cites. We are dealing here with been effectively terminated by the letter a contract amendment which com­ Agreement, which removes the maximum N o v e m b e r 26, 1973. pletely eliminates the demand ceiling in demand from the contract. Under sec­ Take notice that on November 6,1973, the contract with Southwest and there tions 205 and 206 of the Federal Power Lario Oil & Gas Company (Applicant), is, therefore, no longer the question of Act, as interpreted pursuant to the 301 South Market Street, Wichita, K an ­ sas 67202, filed in Docket No. C I7 4 -2 9 4 initial rates which the Commission ad­ Mobile-Sierra rule, we must deny this dressed itself to in the Appalachian and an application pursuant to section 7 (b ) motion. of the Natural Gas Act for permission Philadelphia cases.2 Finally, as to Gulf and approval to discontinue the s a le of States’ suggestion that • Louisiana con­ 8 Gulf States cites: City of Plaquemine, casinghead gas to Warren P e tro le u m tract law should be applied in our con­ La. v. Public Service Commission, No. 52, Corporation, a Division of Gulf Oil Cor­ struction of the contract as amended by 926 in the Supreme Court of La., Opinion is­ poration (Warren), from certain o f Ap­ sued August 20, 1973; Alexandria & W. By. plicant’s gas producing leases located in Co. v. Long Pine Lumber Co., 152 La. 399, 93 C o u n ty , 1 Gulf States refers to: Appalachian Power So. 199 (1922); City of Shreveport v. South­ the Sand Hills Tubb Area, Crane Co., o rd e r d a te d F e b ru a ry 14, 1973 in D o ck et w e stern G a s & E lectric Co.; 151 L a. 864, 92 Texas, all as more fully set forth in No. E-7775; Philadelphia Electric Co. order So. 365 (1922). the application which is on file w i t h the d a te d J a n u a ry 4, 1973, in D o c k e t N o . E-7795. 4 United Gas Co. v. Mobile Gas Corp., 35Ò Commission and open to public in s p e c ­ 2 See footnote 1, supra. U.S. 332 at pp. 338-343 (1956) . tion.

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 NOTICES 33331

Applicant states that under a certain of the certificate is required by the pub­ cedure, a hearing will be held without percentage sales casinghead gas contract lic convènience and necessity. I f a peti­ further notice before the Commission on between Applicant and Warren, dated tion for leave to intervene is timely filed, this application if no petition to inter­ August 20, 1965, Applicant sells casing­ or if the Commission on its own motion vene is filed within the time required head gas to Warren at the latters’ Wad­ believes that a formal hearing is re­ herein, if the Commission on its own re­ dell Processing Plant. Warren processes- quired, further notice of such hearing view of the matter finds that a grant of said casinghead gas and sells the residue will be duly given. the certificate is required by the public gas resulting therefrom to El Paso Nat­ Under the procedure herein provided convenience and necessity. If a petition ural Gas Company at the tailgate of the for, unless otherwise advised, it will be for leave to intervene is timely filed, or Waddell plant under Warren’s FPC Gas unnecessary for Applicant to appear or if the Commission on its own motion Rate Schedule No. 43. Applicant states be represented at the hearing. believes that a formal hearing is required, 371,400 Mcf of casinghead gas was deliv­ further notice of such hearing will be K enneth F. Plumb, duly given." ered to Warren under said contract for Secretary. the twelve months ending September Under the procedure herein provided 1973 for which Applicant received an [FR Doc.73-25493 Filed ll-30-73;8:45 am] for, unless otherwise advised, it will be average price of approximately 9 cents unnecessary for Applicant to appear or be represented at the hearing. per Mcf. Applicant states the subject {Docket No. CP74-131 ] ' contract has expired by its own terms. Kenneth F. Plumb, Applicant proposes to abandon such LONE STAR GAS CO. Secretary. deliveries to Warren made under the ex­ Notice of Application pired contract and has entered into a new [FR Doc.73-25516 Filed ll-30-73;8:45 am ] November 23,1973. Gas Processing Agreement with Warren which will allow Applicant to sell the Take notice that on November 12,1973, [Docket No. CP74—130] subject residue to El Paso while utilizing Lone Star Gas Company (Applicant), 301 the same facilities previously used under South Harwood Street, Dallas, Texas LONE STAR GAS CO. the expired contract. Applicant states 75201, filed in Docket No. CP74-131 an Notice of Application further that it has entered into a Residue application pursuant to section 7(c) of Gas Purchase Agreement with El Paso the Natural Gas Act and § 157.7(b) of N ovember 23, 1973. under which Applicant, holder of a small the Regulations thereunder (18 CFR Take notice that on November 12, producer certificate in Docket No. CS71- 157.7(b)) for a certificate of public con­ 1973, Lone Star Gas Company (Appli­ 564, intends to sell residue gas to El Paso venience and necessity authorizing the cant) , 301 South Harwood Street, Dallas, pursuant to its small producer certificate construction during the calendar year Texas 75201 filed in Docket No. CP74- at an initial price of 36 cents per Mcf 1974, and operation of facilities to enable 130 an application pursuant to sections for a period commencing on delivery and Applicant to take into its certificated 7(c) and 7(b) of the Natural Gas Act, as extending through January 1, 1974. main pipeline system natural gas which implemented by § 157.7 (g> of the Com­ Under the terms of the agreement with will be purchased from producers thereof, mission regulations thereunder (18 CFR El Paso the price is to escalate one cent all as more fully set forth in the appli­ 157.7tg), for a certificate of public con­ per Mcf for each succeeding year cation which is on file with the Com­ venience and necessity authorizing the throughout the term of the agreement mission and open to public inspection. construction and for permission and ap­ which expires January 1, 1989, and El Applicant states that the purpose of proval for the abandonment, during the Paso is to pay % of any additional tax. this budget-type application is to aug­ calendar year 1974, and operation of field Applicant alleges the proposed aban­ ment Applicant’s ability to act with rea­ gas compression and related metering donment of the sale to Warren will have sonable dispatch in contracting for and and appurtenant facilities, all as more no effect on the supply of gas in inter­ connecting to its pipeline system addi­ fully set forth in the application which state commerce since the gas will be sold tional supplies of natural gas in areas is on file with the Commission and open directly to El Paso. generally co-extensive with said system. to public inspection. Any person desiring to be heard or to Applicant states the total cost of all Applicant states the purpose of this make any protest with reference to said facilities will not exceed $3,000,000, with budget-type application is to augment application should on or before Decem­ no single project to exceed a cost of $750,- Applicant’s ability to act with reasonable ber 18, 1973, file with the Federal Power 000. Applicant states said costs will be dispatch in the construction and aban­ Commission, Washington, D.C. 20426, a .financed from working capital. donment of facilities which will not re­ petition to intervene or a protest in ac­ Any person desiring to be heard or to sult in changing Applicant’s system sal­ cordance with the requirements of the make any protest with reference to said able capacity or service from that au­ Commission’s rules of practice and pro­ application should on or before Decem­ thorized prior to filing of the instant cedure (18 CFR 1.8 or 1.10). All protests ber 18, 1973, file with the Federal Power application. filed with the Commission will be con­ Commissiqn, Washington, D.C. 20426, Applicant states that the total cost of sidered by it in determining the appro­ a petition to intervene or a protest in .the facilities proposed herein is $700,000 priate action to be taken but will not accordance with the requirements of the with no single project costing in excess serve to make the protestants parties to Commission’s rules of practice and pro­ of $175,000. Applicant states said cost the proceeding. Any person wishing to cedure (18 CFR 1.8 or 1.10) and the reg­ will be financed from working capital. become a party to a proceeding or to ulations under the Natural Gas Act (18 Any person desiring to be heard or participate as a party in any hearing CFR 157.10). All protests filed with the to make any protest with reference to therein must file a petition to intervene Commission will be considered by it in said application should on or before De­ in accordance with the Commission’s determining the appropriate action to cember 18, 1973, file with the Federal rules. be taken but will not serve to make the Power Commission, Washington, D.C. Take further notice that, pursuant to protestants parties to the proceeding. 20426, a petition to intervene or a protest the authority contained in and subject Any person wishing to become a party to in accordance with the Commission’s to the jurisdiction conferred upon the a proceeding or to participate as a party rules of practice and procedure (18 CFR Federal Power Commission by sections 7 in any hearing therein must file a peti­ 1.8 or 1.10) and the Regulations under and 15 of the Natural Gas Act and the tion to intervene in accordance with the the Natural Gtas Act (18 CFR 157.10). Commission’s rules of practice and pro­ Commission’s rules. All protests filed with the Commission cedure, a hearing will be held without Take further notice that, pursuant to will be considered by it in determining further notice before the Commission on the authority contained in and subject the appropriate action to be taken but this application if no petition to inter­ to the jurisdiction conferred upon the will not serve to make the protestants vene is filed within the time required Federal Power Commission by sections parties to the proceeding. Any person herein, if the Commission on its own re­ 7 and 15 of the Natural Gas Act and the wishing to become a party to a proceed­ view of the matter finds that a grant Commission’s rules of practice and pro­ ing or to participate as a party in any

FEDERAL REGISTER, V O L 38, NO. 231— M O N D AY, DECEMBER 3, 1973 No. 231—Pt. I ---- 9 33332 NOTICES

hearing therein must file a petition to person wishing to become a party to a cedure (18 CFR 1.8 or 1.10) and the regu­ intervene in accordance with the Com­ proceeding or to participate as a party lations under the Natural Gas Act (18 mission’s rules. in any hearing therein must file a peti­ CFR 157.10). All protests filed with the Take further notice that, pursuant to tion to intervene in accordance with the Commission will be considered by it in the authority contained in and subject Commission’s rules. determining the appropriate action to be to the jurisdiction conferred upon the Take further notice that, pursuant to taken but will not serve to make the Federal Power Commission by sections 7 the authority contained in and subject Protestants parties to the proceeding. and 15 of the Natural Gas Act arid the to the jurisdiction conferred upon the Any person wishing to become a party Commission’s rules of practice and pro­ Federal Power Commission by sections 7 to a proceeding or to participate as a cedure, a hearing will be held without and 15 of the Natural Gas Act and the party in any hearing therein must file a further notice before the Commission on Commission’s rules of practice and pro­ petition to intervene in accordance with this application if no petition to inter­ cedure, a hearing will be held without the Commission’s rules. vene is filed within the time required further notice before the C ommission on Take further notice that, pursuant to herein, if the Commission on its own re­ this application if no petition to inter­ the authority contained in and subject view of the matter finds that a grant of vene is filed within the time required to the jurisdiction conferred upon the the certificate and permission and ap­ herein, if the Commission on its own Federal Power Commission by sections proval for the proposed abandonment review» of the matter finds that a grant 7 and 15 of the Natural Gas Act and the are required by the public convenience of the certificate is required by the pub­ Commission’s rules of practice and pro­ and necessity. If a petition for leave to lic convenience and necessity. If a peti­ cedure, a hearing will be held without intervene is timely filed, or if the Com­ tion for leave to intervene is timely filed, further notice before the Commission mission on its own motion believes that or if the Commission on its own motion on this application if no petition to inter­ a formal hearing is required, further no­ believes that a formal hearing is re­ vene is filed within the time required tice of such hearing will be duly given. quired, further notice of such hearing herein, if the Commission on its own re­ Under ^the procedure herein provided will be duly given. view of the matter finds that a grant of for, unless otherwise advised, it will be Under the procedure herein provided the certificate is required by the public unnecessary for Applicant to appear or for, unless otherwise advised, it will be convenience and necessity. If a petition be represented at the hearing. unnecessary for Applicant to appear or fo£ leave to intervene is timely filed, or K e n n e th F. P lu m b , be represented at the hearing. if the Commission on its own motion Secretary. K e n n e th F. P lu m b , believes that a formal hearing is re­ Secretary. quired, further notice of such hearing [FR Doc.73-25517 Filed ll-30-73;8:45 am] will be duly given. [FR Doc.73-25518 Filed ll-30-73;8:45 am] Under the procedure herein provided [Docket No. CP74-127] for, unless otherwise advised, it will be [Docket No. CP74-128] unnecessary for Applicant to appear or LONE STAR GAS CO. be represented at the hearing. Notice of Application LONE STAR GAS CO. K e n n e th F. P lu m b, Notice of Application N ovember 23; 1973. Secretary. Take notice that on November 12,1973, N ovember 23, 1973. [FR Doc.73-25519 Filed 11-30-73;8:45 am] Lone Star Gas Company (Applicant), Take notice that on November 12,1973, 301 South Harwood Street, Dallas, Texas Lone Star Gas Company (Applicant), 75201, filed in Docket No. CP74-127 an 301 South Harwood Street, Dallas, Texas [Docket No. E-8466] application pursuant to section 7(b) of 75201, filed in Docket No. CP74-128 an LOUISIANA POWER AND LIGHT CO. the Natural Gas Act, as implemented by application pursuant to section 7(c) of § 157.7(e) of the Commission’s regula­ the Natural Gas Act, as implemented by Proposed Emergency Assistance tions thereunder (18 CFR 157.7(e)), for § 157.7(c) of the Commission’s regula­ Agreement permission and approval to abandon, tions thereunder (18 CFR 157.7(c)), for N ovember 23, 1973. during the calendar year 1974, certain a certificate of public convenience and Take notice that on October 31, 1973, minor direct sales facilities no longer necessity authorizing the construction the Louisiana Power and Light Company required for deliveries of natural gas to and operation of certain natural gas sales (LPL) tendered for filing an Emergency Applicant’s customers, all as more fully or transportation facilities to enable Ap­ Assistance Agreement dated Septem­ set forth in the application which is on plicant to make miscellaneous rearrange­ ber 7, 1972 providing for the delivery of file with the Commission and open to ments of existing facilities, all as more emergency electric service to the Town public inspection. fully set forth in the application which of Rayville, Louisiana (Rayville). LPL Applicant states that the purpose of is on file with the Commission and open states that the proposed agreement pro­ this budget-type application is to aug­ to public inspection. vides for service only in case of emer­ ment Applicant’s ability to act with rear The purpose of this budget-type ap­ gencies and that future sales and rev­ sonable dispatch in abandoning service plication is to augment Applicant’s abil­ enues are too unpredictable to be esti­ and removing direct sales measuring, ity to act with reasonable dispatch in mated with any relative accuracy. LPL regulating, and related minor facilities making changes in existing field opera­ further states that the proposed agree­ no longer required for deliveries to its tions and miscellaneous rearrangements ment was made with Rayville for emer­ customers. and relocations of existing facilities gency assistance on Rate Schedule EAS- Any person desiring to be heard or to when required by highway, dam, and 2, which rate schedule was filed with the make any protest with reference to said other similar construction projects which Commission September 19,1968, accepted application should on or before Decem­ will not result in any change in service. for filing and made effective October 24, ber 18, 1973, file with the Federal Power Applicant states that the total cost of 1968 for the City of Minden, FPC Sched­ Commission, Washington, D.C. 20426, a the facilities proposed herein is $300,000, ule No. 29, and later for seven other towns petition to intervene or a protest in ac­ with no single project costing in excess and cities.1 cordance with the requirements of the of $75,000. Applicant states said cost will According to LPL, the facilities to im­ Commission’s rules of practice and pro­ be financed from cash on hand. plement the proposed agreement have cedure (18 CFR 1.8 or 1.10) and the reg­ Any person desiring to be heard or to ulations under the Natural Gas Act (18 make any protest with reference to said CFR 157.10). All protests filed with the application should on or before Decem­ 1The City of Ruston, FPC Schedule No. ber 18, 1973, file with the Federal Power 30; the City of Thibodaux, FPC Schedule No. Commission will be considered by it in 39; the City of Monroe, FPC Schedule No. 40; Commission, Washington, D.C. 20426, a determining the appropriate action to be the City of Houma, . FPC Schedule No. 43; petition to intervene or a protest in ac­ the Town of Lake Providence, FPC Sched­ taken but will not serve to make the Pro­ cordance with the requirements of the ule No. 45, and the Town of Homer, FPC testants parties to the proceeding. Any Commission’s rules of practice and pro­ S ch e d u le N o . 47.

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 NOTICES 33333

NATIONAL POWER SURVEY TECHNICAL been completed and the emergency as­ to intervene or protest with the Federal Power Commission, 825 North Capitol ADVISORY COMMITTEE ON POWER sistance service is available to Rayville. SUPPLY LPL states that a copy of the proposed Street NE., Washington, D.C. 20426, in filing has been sent to Rayville and re­ accordance with §§ 1.8 and 1.10 of the Order Designating Additional Members quests that the proposed agreement be Commission’s rules of practice and pro­ N ovember 26,1973. accepted for filing to become effective on cedure (18 CFR 1.8, 1.10). All such peti­ tions or protests should be filed on or The Federal Power Commission, by the date on which service is initially order issued September 28, 1972, estab­ rendered. before December 6,1973. Protests will be considered by the Commission in deter­ lished certain advisory committees. Any person desiring to be heard or to 2. Membership. Additional members of protest said filing should file a petition mining the appropriate action to be taken, but will not serve to make pro­ the Technical Advisory Committee on to intervene or protest with the Federal Power Supply, as selected by the Chair­ Power Commission, 825 North Capitol testants parties to the proceeding. Any person wishing to become a party must man of the Commission, with the ap­ Street NE., Washington, D.C. 20426, in proval of the Commission, are as follows: accordance with §§ 1.8 and 1.10 of the file a petition to intervene. Copies of this Com m ission’s rules of practice and pro­ filing are on file with the Commission Mr. L. A. Essweln, Member, Assistant Direc­ tor of Corporate Planning, Union Electric cedure (18 CFR 1.8,1.10). and are available for public inspection. All such petitions or protests should be C o m p a n y . Kenneth F. Plumb, Mr. Edward J. Hanrahan, Member, Assistant filed on or before December 6,1973. Pro­ Secretary. Director for Energy and Environment, U.S. tests will be considered by the Commis­ [FR Doc.73-25521 Filed 11-30-73:8:45 am ] Atomic Energy Commission Office of Plan­ sion in determining the appropriate ac­ n in g a n d A n aly sis. tion to be taken, but will not serve to By the Commission. make protestants parties to the proceed­ NATIONAL POWER SURVEY EXECUTIVE ing. Any person wishing to become a ADVISORY COMMITTEE [seal] Kenneth F. Plumb, party must file a petition to intervene. Secretary. Order Designating Additional Mer.-.ber Copies of this filing are on file with the [FR Doc.73 25488 Filed 11-30-73;8:45 am] Commission and are available for public November 26, 1973. inspection. The Federal Power Commission, by Kenneth F. Plumb, order issued August 11, 1972, establishèd [Docket Nos. E-8251, E-8169] Secretary. the Executive Advisory Committee of the NEW ENGLAND POWER CO. [PR Doc.73-25510 Filed U-30-73;8:45 am ] National Power Survey. 2. Membership. An additional member Extension of Time and Postponement of of the Executive Advisory Committee, .as Prehearing Conference and Hearing [Docket No. E-8130] selected by the Chairman of the Com­ November 23,1973. MIDDLE SOUTH SERVICES, INC. mission, with the approval of the Com­ On November 9, 1973, Rhode Island mission, is as follows; Consumers’ Council filed an extension of Certification of Settlement Agreement Charles E. Wyckoff, Member, President, Na­ the procedural dates fixed by the order November 26, 1973. tional Rural Electric Cooperative Associ­ issued July 30, 1973 in the above-desig­ Take notice that on November 8, 1973, atio n . nated matter. On November 16, 1973 the Presiding Administrative Law Judge By the Commission. Staff counsel also filed a motion for an certified to the Commission a proposed extension of the procedural dates. The settlement agreement in the above-en­ [ seal] Kenneth F. Plumb, motion states that all parties concur in Secretary. titled proceeding. The agreement would, the motion. if approved, resolve all issues in the pro­ [FR Doc.73-25487 Filed ll-30-73;8:45 am ] Upon consideration, notice is hereby ceeding. - given that the procedural dates are modi­ fied as follows: Any person wishing to do so may sub­ NATIONAL POWER SURVEY EXECUTIVE mit comments with respect to the pro­ ADV SORY COMMITTEE S ervice o f S ta ff’s evid ence, F e b ru a ry 5, 1974. posed settlement agreement pn or before Service of Intervenor’s evidence, February 19, December 13,1973. The settlement agree­ Order Designating an Additional Member 1974. ment is on file with the Commission and November 26, 1973. Service of Rebuttal evidence, March 5, 1974. available for public inspection. P re h e a r in g C o n feren ce, M a rc h 19, 1974 The Federal Power Commission by (10:00 a.m .). Kenneth F. Plumb, Order issued August 11,1972, established H e a rin g , M a rc h 19, 1974 (C o m m e n c e s u p o n Secretary. the Executive Advisory Committee of the the conclusion of the Prehearing Confer­ e n ce ) . [PR Doc.73-25503 Filed 11-30-73; 8:45 am ] National Power Survey. 1. Membership. The Honorable Ben T. K enneth F. Plumb, Wiggins, President of the National As­ Secretary. [Docket No. E-8488] sociation of Regulatory Utility Commis­ [FR Doc.73-25522 Filed ll-30-73;8:45 am] MISSOURI POWER AND LIGHT CO. sioners and a Member of the Georgia Public Service Commission, was nomi­ Proposed New Electric Service Agreement nated by the Chairman of the Commis­ [Docket No. RI74-24] November 23,1973. sion with the approval of the Commis­ NORMAN B. FROST, OPERATOR sion to serve as a member of the Execu­ Take notice that Missouri Power and Petition for Special Relief Light Company (Missouri) on Novem­ tive Advisory Committee of the National ber 12, 1973, tendered for filing a pro­ Power Survey during the term of his of­ November 26,1973. posed. Electric Service Agreement with fice as President succeeding Arthur L. Take notice that on August 7, 1973, 'Norman B. Frost, Operator (Petitioner), the City of Canton, Missouri. The pro­ Padrutt as the official representative of posed agreement would have an effective 500 Southern Building, Washington, D.C. date of January 1, 1973, and would be the National Association of Regulatory 20005, filed a petition for special relief identical, with minor modifications, to Utility Commissioners on the Executive in Docket No. RI74-24, pursuant to sec­ FPC Rate Schedules No. 41 and No. 38 Advisory Committee. tion 2.76 of the Commission’s general presently on file with the Commission. By the Commission. policy and interpretations. Petitioner re­ According to Missouri, service has been made upon the City of Canton. [ seal] K enneth F. Plumb, quests that it be granted special relief Any persons desiring to be heard or to Secretary. from the flowing gas ceiling established protest said filing should file a petition [FRDoc.73-25439 Filed ll-30-73;8:45 am] in Opinion No. 662 (Permian II) , and be

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 33334 NOTICES

permitted to collect a 40tf per Mcf rate and amended by order issued October 23, section 7(c) of the Natural Gas Act and for sales of natural gas to El Paso Natu­ 1973. The motion states that neither in­ § 2.75 of the Commission’s general policy ral Gas Company from Gas Well No. 4, terveners nor staff counsel oppose the and interpretations (18 CFR 2.75) for a Allison Lease, Sutton County, Texas. motion. certificate of public convenience and Petitioner states that Well No. 4 drilled Upon consideration, notice is hereby necessity authorizing the sale for resale in May, 1961, is the only remaining gas given that the procedural dates are mod­ and deliver of natural gas in interstate well on the Allison Lease, Sutton County, ified as follows: commerce to Southern Natural Gas Texas, and is capable of producing from Service of Exhibits and Testimony by PGT, Company (Southern) from Coffee Bay 300,000 to 400,000 cubic feet of gas per J a n u a r y 4,' 1974. Field, LaFourche Parish, Louisiana, all day, and that it has been shut in for the Prehearing Conference, January 16, 1974 (10 as more fully set forth in the applica­ past six months because of economic a.m., e.s.t.). tion which is on file with the Commission conditions arising from salt water pro­ Hearing (commences upon the conclusion of and open to public inspection. duction and disposal. Petitioner further the Prehearing Conference) January 16, 1974. Applicant proposes under the optional states that he will have to abandon the gas pricing procedure to sell natural gas subject well unless given relief. K e n n e t h F . P l u m b , to Southern from the Coffee Bay Field Any person desiring to be heard or to Secretary. at an initial rate of 45.0 cents per Mcf make any protest with reference to said [FR Doc.73-25523 Filed 11-30-73:8:45 am ] at 15.025 p.s.i.a., with the price to be re­ petition should on or before December 18, duced by 0.1026 percent for each Btu. 1973, file with the Federal Power Com­ below a total Btu content of 975 Btu. mission, Washington, D.C. 20426,'a peti­ [Docket No. E—8446] per cubic foot, pursuant to the terms of tion to intervene or a protest in accord­ PENNSYLVANIA ELECTRIC CO. a contract between Applicant and ance with the requirements of the Com­ Southern, dated April 2, 1958, as mission’s rules of practice and procedure Filing of Service Agreements amended by agreement dated September (18 CFR 1.8 or 1.10). All protests filed N o v e m b e r 26,1973. 13, 1973. Said agreement calls for fixed with the Commission will be considered periodic increases in price of one cent by it in determining the appropriate ac­ Take notice that Pennsylvania Electric Company (Penelec) on November 9,1973, per Mcf for each additional two-year tion to be taken but will not serve to period, with Southern to pay % of any make the protestants parties to the pro­ tendered for filing copies of service additional tax. agreements with the Boroughs of Berlin, ceeding. Any party wishing to become a Applicant states that additional natu­ party to a proceeding or to participate as East Conenaugh, Girard, Hooversville, Smethport, and Summerhill, Pennsyl­ ral gas is critically needed and alleges a party in any hearing therein must file that the issuance of the requested cer­ a petition to intervene in accordance vania. Copies of service agreements were also filed in regard to one associated tificate at the rate contracted for is nec­ with the Commission’s rules. essary to justify the expenditure by Ap­ investor-owned utility, Waterford Elec­ plicant of the amounts necessary to K e n n e t h F . P l u m b , tric Company, and four non-associated perform the drilling, deepening, and re­ Secretary. investor-owned utilities, Rockingham Light, Heat and Power Company, Elk- completion activity contemplated in the [FR Doc.73-25496 Filed ll-30-73;8:45 am] instant contract with Southern. land Electric Company, Wellsborough Any person desiring to be heard or to Electric Company, and Windber Electric make any protest with reference to said [Docket No. E-7777] Corporation. The service agreements are application should on or before Decem­ in unexecuted form except for the agree­ PACIFIC GAS AND ELECTRIC CO. ber 18, 1973, file with the Federal Power ment with Elkland Electric Company. Extension of Time Commission, Washington, D.C. 20426, a Panelec requests that the filing be effec­ petition to intervene or a protest in ac­ tive as of December 12,1973. N o v e m b e r 26, 1973. cordance with tlie Commission’s rules of On November 20,1973, Pacific Gas and Any person desiring to be heard or to practice and procedure (18 CFR 1.8 or Electric Company filed a motion for an protest said filing should file a petition 1.10). All protests filed with the Commis­ extension of time within which to re­ to intervene or protest with the Federal sion will be considered by it in determin­ spond to the Motion for Extraordinary Power Commission, 825 North Capitol ing the appropriate action to be taken Relief filed November 7, 1973, by the Street NE., Washington, D.C. 29426, in but will not serve to make the protestants Cities of Alameda, California et al. The accordance with §§ 1.8 and 1.10 of the parties to the proceeding. Any person motion states that neither counsel for Commission’s rules of practice and pro­ wishing to become a party to a proceed­ the Cities, Northern California Power cedure (18 CFR 1.8 and 1.10). All such ing or to participate as a party in any Agency, nor Staff Counsel had any ob­ petitions or protests should be filed on or healing therein must file a petition to jection to the requested extension. before December 7, 1973. Protests will intervene in accordance with the Com­ be considered by the Commission in de­ mission’s rules. Upon consideration, notice is hereby termining the appropriate action to be given that the time is extended to and Take further notice that, pursuant to taken, but will not serve to make protes­ the authority contained in and subject including December 6,1973, within which tants parties to the proceeding. Any Pacific Gas and Electric Company may to the jurisdiction conferred upon the person wishing to become a party must Federal Power Commission by sections 7 respond to the above motion for ex­ file a petition to intervene. Copies of this traordinary relief. and 15 of the Natural Gas Act and the filing are on file with the Commission for Commission’s rules of practice and pro­ M a r y B . K i d d , public inspection. cedure, a hearing will be held without Acting Secretary. K e n n e t h F . P l u m b , further notice before the Commission on [FR Doc.73-25482 Filed ll-30-73;8:45 am] Secretary. this application if no petition to inter­ vene is filed within the time required [FR Doc.73-25497 Filed ll-30-73;8:45 am ] herein, if the Commission on its own re­ [Docket No. RP73-111] view of the matter finds that a grant of PACIFIC GAS TRANSMISSION CO. [Docket No. CI74—287] the certificate is required by the public PETRO-LEWIS CORP. convenience and necessity. If a petition Extension of Time and Postponement of for leave to intervene is timely filed, or Prehearing Conference and Hearing Notice of Application if the Commission on its own motion be­ N o v e m b e r 21, 1973. N o v e m b e r 26,1973. lieves that a formal hearing is required, On November 8, 1973, Pacific Gas Take notice that on November 5, 1973, further notice of such hearing will be Transmission Company filed a motion Petro-Lewis Corporation 1600 Broadway, duly given. for a continuance of the procedural dates Denver, Colorado 80202, filed in Docket Under the procedure herein provided fixed by order issued September 13,1973, No. CI74-287 an application pursuant to for, unless otherwise advised, it will be

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 NOTICES 33335 unnecessary for Applicant to appear or within the project boundaries to Forest Further, the transfer of these lands be represented at the hearing. Service. Though the Licensee transferred within project boundaries coupled with its lands to the Department of Justice, the Licensee’s plan to have Forest Serv­ K e n n e t h F . P l u m b , they informally understood that the ice administer recreational activities Secretary. lands would be transferred at some future raise the possibility that Article 42 » f the [PR Doc.73-25492 Filed ll-30-73;8:45 am ] date to Forest Service. aforementioned license has also been After the Department of Justice re­ violated. Article 42 provides that the ceived the 1968 lands, they declared them licensee is required to acquire title to [Project 2101] to be excess of its needs and turned them private lands within project boundaries SACRAMENTO MUNICIPAL UTILITY over to the General Services Administra­ which are necessary to provide access to DISTRICT tion (G S A ). Forest Service then re­ and allow for controlled public use of the reservoir area for recreation *. Order Providing for Hearing quested that these lands be transferred to the Department of Agriculture to be in­ The Commission finds: (A) It is ap­ N o v e m b e r 26, 1973. cluded within the Eldorado National For­ propriate and in the public interest as On January 23,1973, Sacramento Mu­ est. On October 28, 1971, the Office of provided herein to hold a public hear­ nicipal Utility District, Licensee for the Management and Budget (OMB) disap­ ing respecting matters involved and is­ Upper American River Project No. 2101, proved Forest Service’s request stating sues presented in this proceeding on the filed an application seeking Commission that present value of the planned use by application by Sacramento Municipal approval of two separate lands transfers Forest Service would be considerably less Utility District for approval of land of project property of the aforesaid proj­ than the present value of its sale. Forest transfers and such other purposes set ect. ^ Service then requested reconsideration forth in this order. The first transfer, accomplished by OMB. On July 12, 1972, OMB reaf­ (B) It is appropriate and in the public May 25, 1964, conveyed to the United firmed its decision of October 28, 1971. interest to allow all the federal agencies States Forest Service (Forest Service) Currently the lands are still in the pos­ and departments that dealt with or have 1131.2 acres of land within project boun­ session of GSA and Forest Service has an interest in the aforementioned land daries, adjacent to Union Valley and Ice again requested reconsideration by OMB. to be made parties to this proceeding. House Reservoirs. The Licensee in turn The aforesaid transfers were made The Commission orders: (A ) Pursuant received from Forest Service 682.81 acres without Commission approval and would to the authority contained in and subject of land known as the Big Hill property appear to be in violation of Articles 2 and to the jurisdiction conferred upon the located one mile south of the Union Val­ 23 of the license for Project No. 2101. Ar­ Federal Power Commission by the Fed­ ley Reservoir. ticle 2 provides that no substantial eral Power Act, particularly sections 4 (g ), The purpose of this transfer was, ac­ changes shall be made in maps, plans 10(a) .and 308 thereof, and the Commis­ cording to the above application, to con­ anri specifications without Commission sion’s Rules of Practice and Procedure, a vey all privately owned lands within approvala. Article S3 provides that during public hearing shall be held in a hearing project boundaries to the Forest Service the period of the license, the licensee room of the Federal Power Commission, who was thought by the Licensee to be shall retain all property, easements, 825 North Capitol Street NE., Washing­ better equipped to administer public water rights or rights of occupancy and ton, D.C. 20426, respecting the matters recreational facilities within the project. „use necessary or useful to the project involved and issues presented in this pro­ Two reservations were placed on the and for development, transmission and ceeding. The time for the submission of above transfer. The first granted the Li­ distribution of power and prohibits trans­ testimony and exhibits by the partic­ censee such flowage rights as may be fer of such property and interests with­ ipants and the time for convening hear­ required by the license issued for Pro­ out Commission approvals. ing sessions in Washington, D.C., and ject No. 2101, subject to damages for any such other places as may be necessary Forest Service improvements placed on 2 Article 2 states “No substantial change shall be determined by the presiding Ad­ the property that would be rendered un- shall be made in the maps, plans, specifica­ ministrative Law Judge. useable. The second guaranteed that the tions, and statements described and desig­ (B) The purpose of the hearing shall nated as exhibits and approved by„ the Com­ land would remain open to the public for be to consider the application of Sac­ outdoor recreation as authorized by Pub­ mission in its order as a part of the license lic Law 86-517 (74 Stat. 215)1 and ad­ until such change shall have been approved ramento Municipal Utility District re­ ministered so as to permit controlled by the Commission: Provided, however, That questing approval of transfers of project if the Licensee or the Commission deems it public use of the reservoir area for recr necessary or desirable that said approved reation as required by the license issued exhibits, or any of them, be changed, there under the provisions of Section 15 of the for Project No. 2101. shall be submitted to the Commission for Act, the Licensee, its successors and assigns The second transfer, accomplished De­ approval amended, supplemental, or addi­ will be responsible for and will make good cember 24,1968, transferred to the United tional Exhibit or exhibits covering the pro­ any defect of title to or of right of user in States Department of Justice (Depart­ posed changes which, upon approval by the any of such project property which is neces­ Commission, shall become a part of the li­ sary or appropriate or valuable and service­ ment of Justice) 1281.48 acres of land, of able in the maintenance and operation of the which 276.31 acres were within project cense and shall supersede, in whole or in part, such exhibit or exhibits theretofore project, and will pay and discharge, or wUl boundaries, adjacent to Ice House, Loon made a part of the license as may be specified ngfinmft responsibUity for payment and dis­ Lake, Gerle Creek, and Junction Reser­ b y th e C o m m issio n .” charge, of all liens or incumbrances upon voirs and the Camino Tunnel adit. This 3 Article 23 states “The. Licensee, its suc­ the project or project property created by property was transferred as part settle­ cessors and assigns shall, during the period the Licensee or created or incurred after the ment of a fire damages claim filed against of the license, retain the possession of all issuance of the license: Provided, that the the Licensee by the Department of Jus­ project property covered by the license as provisions of this article are not intended issued or as later amended,' including the to prevent the abandonment or the retire­ tice, i ment from service of structures, equipment, One reservation was placed on this project area, the project works, and all fran­ chises, easements, water rights, and rights or other project works in connection with transfer, granting the Licensee all right, of occupancy, and use; and none of such replacements thereof when they become title and interest in all improvements properties necessary or useful to the project obsolete, inadequate or inefficient for fur­ upon the property that form a part of, or and to the development, transmission, and ther service due to wear and tear, or to are necessary or convenient to Project distribution of power therefrom will be require the Licensee, for the purpose of trans­ No. 2101. No further reservation or con­ voluntarily sold, transferred, abandoned, or ferring the project to the United States or ditions were included. otherwise disposed of without the approval to a new licensee, to acquire any different of the Commission: Provided, that a mortgage title to or right of user in any of such project According to the above application the property than was necessary to acquire for 1968 transfer fulfilled the Licensee’s orig­ or trust deed or judicial sales made there­ under, or tax sales, shall not be deemed its own purposes as Licensee.” inal plan to transfer all private properties voluntary transfers within the meaning of ‘ Article 42 states “The Licensee will ac­ this article. In the event the project is taken quire such title to all private lands within the project boundary as is necessary to pro­ 1 Public Law 86-517 (74 Stat. 215) is known over by the United States upon the termina­ vide access to and allow for, controlled public as the Multiple-Use Sustained-Yield Act of tion of the license, as provided in Section 14 use of the reservoir areas for recreation.” 1960. (16 UJS.C. 528-531). of the Act, or is transferred to a new licensee

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 33336 NOTICES

property of Project No. 2101 by develop­ and 69 the total requirements of MCC as January 1, 1974. Such filing is pursuant ing a formal record pertaining to: 29,313 Mcf per day, 29,090 of which is to Section 17 (Purchased Gas Adjust­ (1) Whether the Commission shall firm contract demand and 313 of which ment) of the General Terms and Condi­ request the Attorney General of the is category 7 priority gas. It is the posi­ tions of Southern’s FPC Gas Tariff, United States to have the aforesaid tion of MCC that its actual total require­ Sixth Revised Volume No. 1 and Article transfer revoked or reformed so as to ments at its Yazoo City chemical fertil­ II and Article III of the Stipulation and achieve compliance with the provisions izer plant are 44,000 Mcf per day Agreement approved by the Commis­ of the license for Project No. 2101 and in (rounded) , 29,000 of which is category sion’s order dated July 23,1973 in South­ particular Articles 2, 23, and 42; 2 gas as stated in Southern’s Index of ern’s Docket Nos. RP72-91 (Phase II) (2) Whether the Commission should Requirements, 11,814 of which is cate­ et al. The proposed changes would in­ take any further action that would be gory 3 gas and 2,817 of which is category crease revenues from jurisdictional sales appropriate to remedy the Licensee’s 7 gas. by 4.25^ per Mcf in its commodity and violation of the provisions of thè Federal MCC states that on September 1,1971, one-part rates. The increase is made up Power Act or any lawful regulation or Southern filed an abandonment applica­ of the following items: order promulgated thereunder; and tion in Docket No. CP72-52 seeking to (1) An adjustment to the Base Tariff (3) All other relevant matters raised abandon the sale in question, but that Rates pursuant to Article m of the Stip­ by the parties. that case was tentatively settled by a ulation and Agreement approved by the (C) Formal parties submitting evi­ stipulation and agreement which is cur­ Commission’s order dated July 23, 1973 dence for admission to the record shall rently under advisement by the assigned for increases in the levels for advance submit their exhibits and testimony in administrative law judge. The stipula­ payments of $6,971,559 above the advance writing in advance to be subject to cross- tion and agreement is said by MCC to payment levels presently reflected in examination upon the opening of the obligate Southern to deliver 44,000 Mcf Southern’s rates. The jurisdictional cost hearing in accordance with a schedule to per day to MCC until December 31,1975, increase due to additional advance pay­ be fixed by the Administrative Law less that amount delivered by Shell Oil ments is $878,486. Judge. Company on any given day. (2) A Current Adjustment for in­ By the Commission. Petitioner asserts that there is no creased cost of purchased gas to juris­ alternative supply of natural gas nor of dictional customers of $17,424,001. [ seal] Kenneth F. P lumb, any alternative fuel available for use in Secretary. (3) A Surcharge Adjustment pursuant its plant. Consequently, it states, if it is to Article I I of the Stipulation and [FR Doc.73-25485 Filed ll-30-73;8:45 am ] denied its full requirements of 44,000 Agreement approved by the Commis­ Mcf per day, it will be compelled to cur­ sion’s order dated July 23, 1973 for ad­ tail its operations, thus creating hardship [Dockets Nos. RP72-74, RP74^6] vance payments accumulated during the and irreparable injury.. period of June 1,1973 through August 31, SOUTHERN NATURAL GAS CO. It appears reasonable and consistent 1973 of $433,118. Notice Fixing Prehearing Conference and with the public interest in this proceed­ (4) A Surcharge Adjustment pursuant Deferring Procedural Dates ing to prescribe a period shorter than 15 to § 17.3 of the General Terms and Con­ days for the filing of protests and peti­ ditions of Southern’s FPC Gas Tariff for N ovember 23, 1973. tions to intervene. Therefore, any person' unrecovered purchased gas costs. On November 9,1973, Southern Natural desiring to be heard or to protest said Copies of the filing have been served Gas Company filed a motion to defer the application, should file a petition to in­ upon the company’s jurisdictional cus­ procedural dates fixed by order issued tervene or protest with the Federal tomers and interested state commissions. October 31,1973, in the above-designated Power Commission, 825 North Capitol Any person desiring to be heard or to matter. The motion also requests that a Street NE, Washington, D.C. 20426, in protest said filing should file a petition to prehearing conference be held on Decem­ accordance with §§ 1.8 and 1.10 of the intervene, or protest with the Federal ber 4, 1973, rather than the evidentiary Commission’s rules of practice and pro­ Power Commission, 825 North Capitol hearing as now scheduled. cedure (18 CFR 1.8, 1.10) on or before Street NE., Washington, D.C. 20426, in Upon consideration, notice is hereby December 3, 1973. The notices and peti­ accordance with §§ 1.8 and 1.10 of given that a prehearing conference is tions for intervention previously filed in the Commission’s rules of practice scheduled for December 4, 1973, at 10 this proceeding will not operate to make and procedure (18 CFR 1.8, 1.10). All a.m: in a hearing room of the Federal those parties interveners or protestants such petitions or protests should be Power Commission at 825 North Capitol with respect to the instant filing. Pro­ filed on or before December 7,1973. Pro­ Street NE., Washington, D.C. 20426. All tests will be considered by the Commis­ tests will be considered by the Commis­ the other procedural dates are deferred sion in determining the appropriate sion in determining the appropriate ac­ pending further order of the Commission. action to be taken, but will not serve to tion to be taken, but will not serve to

M a r t B . K i d d , make protestants parties to the proceed­ make protestants parties to the proceed­ Acting Secretary. ing. Any person wishing to become a ing. Any person wishing to become a party must file a petition to intervene in party must file a petition to intervene [FR Doc.73-25525 Filed ll-30-73;8:45 am] accordance with the Commission’s rules. unless such petition has been filed pre­ This filing which was made with the viously. Copies of this filing are on file SOUTHERN NATURAL GAS CO. Commission is available for public with the Commission and are available inspection. for public inspection. [Docket No. RP74-6, et al] K enneth F. Plumb, Secretary. x K enneth F. Plumb, Motion for Extraordinary Relief Secretary. [FR Doc.73-25526 Filed ll-30-73;8:45 am] N ovember 23, 1973. [FR Doc.73-25506 FUed ll-30-73;8:45 am] On October 23, 1973, Mississippi Chemical Corporation (MCC) filed a [Docket Nos. RP73-64, RP72-91 (Phase II), [Docket No. RP73-99] petition for extraordinary relief with the e t a l.] Commission which was referred to as a SOUTHWEST GAS CORP. SOUTHERN NATURAL GAS CO. request for pendente lite relief in the Filing of Settlement Agreement petition. In that request, MCC sought Proposed Changes in FPC Gas Tariff November 21, 1973. extraordinary relief from the Index of November 26,1973. Requirements filed by Southern Natural Take notice that on November 19,1973, Gas Company (Southern) on October 1, Take notice that Southern Natural Gas Company (Southern) on Novem­ Southwest Gas Corporation (Southwest) 1973, as part of its FPC Gas Tariff. ber 16, 1973 tendered for filing proposed filed a motion with the Commission for MCC asserts that the above mentioned changes in its FPC Gas Tariff, Sixth Re­ approval of a Settlement Agreement in Index of Requirements lists at pages 68 vised Volume No. 1 to become effective the instant proceeding. The motion had

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 NOTICES 33337 attached, to it a Stipulation and Agree­ [ Rate Schedule 277, et al. ] The Commission orders: ment, proposed rates, settlement cost of SUN OH. CO. 532 Northern Natural Gas G o. - Permian. vlBe, Okla. 74004. proposes to continue said sale for two Do —-, >533 ____ do______:______~ Do. years within the contemplation of § 2.70 Nov. 14,1973__ Texaco, Inc., P.O . Box 52332, 102 "United Gas Pipe Line Co__ South Louisiana. H ouston, Tex. 77052. of the Commission’s general policy and Nov. 15,1973... Mobil Oil Corp., 3 Greenway 205 Other Southwest. interpretations (18 CFR 2.70). Applicant Plaza F ast, Suite 800, Houston, Tex. 77046. proposes to sell up to 2,000 M cf of gas Nov. 19,1973. ,____ ÛO...... 414 Texas Eastern Transmission D o. per day at 45.0 cents per Mcf at 14.65 Oorp. pjsi.a., subject to upward and downward Btu adjustment. The initial rate, includ­ 1 Tentati«« designation. Phillips has filed a superseding contract ior sales from Benedum Plant presently made under Phillips Petroleum Co. F P C Gas Bate Schedule N o. 18. „ ' '' ing all adjustments and tax reimburse­ * Tentative designation. Phillips has filed a superseding-contract for sales from Sprayberry Plant presently made under Phillips Petroleum G o. F P C Gas Rate Schedule N o. 18. ment, is 47.39 cents per Mcf for gas con­ taining 1,050 Btu per cubic foot. [F R Doc.73-25501 Filed ll-30-73;8:45 am ] It appears reasonable and consistent with the public interest in this case to [Docket No. RP74r-24] see’s revised tariff sheets contained its prescribe a period sh ort» than 15 days TENNESSEE GAS PIPELINE CO. proposed curtailment plan filed pursuant for the filing of protests and petitions to to Order No. 431 in Docket No. R-418. intervene. Therefore, any person desir­ Order Amending Order and Vacating By our order of October 30, 1973, we Suspension of Tariff Sheets ing to be heard or to make any protest suspended the tariff sheets for one day, with reference to said application should N ovember 26,1973. since they were not in strict conformity on or before December 10, 1973, file with By order issued October 30, 1973, we with the policy statement Issued in the Federal Power Commission, Wash­ suspended eleven tariff sheets filed by Docket No. R-469, Order No. 467-B. ington, D.

FEDERAL REGISTER, VOL. 38, NO. 231— M O NDAY, DECEMBER 3, 1973 33338 NOTICES

1.10). All protests filed with the Com­ Utica requests that the Commission from the principles enunciated in Opinion mission will be considered by it in deter­ issue forthwith an» interlocutory order No. 600-A is warranted. Accordingly we shall mining the appropriate action to be taken increasing * Utica’s entitlement by 6,547 rem and the proceeding to the Adm inistrative but will not serve to make the protestants Mcf “ with the understanding that in the Law Judge for further proceedings with en­ parties to the „ proceeding. Any person regularly scheduled hearings in this pro­ couragem ent to the parties to reopen discus­ wishing to become a party to a proceed­ sions which may lead to the resubmission ceeding,3 the burden of proof will be on of the Agreement, m odified to reflect, in the ing or to participate as a party in any Utica to sustain its position, and that design of settlem ent rates, classification on hearing therein must file a petition to the Commission will not in any manner costs in accordance w ith the unm odified Sea­ intervene in accordance with the Com­ be bound by said interlocutory order in board method. mission’s rules. its final determination of this issue on Take further notice- that, pursuant to the merits.” The subsequently submitted proposed the authority contained in and subject In -the alternative, Utica asks that the Revised Stipulation and Agreement was to the jurisdiction conferred upon the petition be promptly noticed and handled likewise remanded to the Administrative Federal Power Commission by sections in a separate proceeding. Law Judge because the rates therein did 7 and 15 of the Natural Gas Act and the not reflect unmodified Seaboard rate Any person desiring to be heard or to design. In our order of June 28, 1973, Commission’s rules of practice and pro­ make protests with reference to said peti­ cedure, a hearing will be held without remanding the revised agreement we tion should on or before December 6, stated: further notice before the Commission on 1973, file with the Federal Power Com­ this application if no petition to inter­ mission, Washington, D.C. 20426, peti­ The rates contained in the Revised Stipula­ vene is filed with the time required here­ tions to intervene or protests in accord­ tion and Agreement now before us are not in conform ity w ith that instruction and the in, if the Commission on its own review ance with the requirements of the Com­ of the matter finds that a grant of the record as made before the Presiding Judge mission’s rules of practice and procedure on remand has not convinced us that the certificate is required by the public con­ (18 CFR 1.8 or 1.10). All protests filed rate design therein contained is just and venience and necessity. If a petition for with the Commission will be considered reasonable and in the public interest or that leave to intervene is timely filed, or if the by it in determining the appropriate ac­ any departure from Seaboard rates is war­ Commission on its own motion believes tion to be taken but will not serve to r a n te d . that a formal hearing is required, further make the protestants parties to a pro­ Our review of the Second Revised Stip­ notice of such hearing will be duly given. ceeding. Persons wishing to become Under the procedure herein provided ulation and Agreement, submitted by parties to a proceeding or to participate Texas Eastern on July 25, 1973, indicates for, unless otherwise advised, it will, be as a party in any hearing therein must it reflects unmodified Seaboard rates. Ac­ unnecessary for Applicant to appear or file petitions to intervene in accordance be represented at the hearing. cordingly we shall accept said Second with the Commission’s rules. The peti­ Revised Stipulation and Agreement to be K e n n e t h F . P l u m b , tion is on file with the Commission and effective as of July 14,1972. Secretary. is available for public inspection. The details of the cost of service, rate [FR Doc.73-25480 Filed ll-30-73;8:45 am] K e n n e t h F . P l u m b , baseband rate of return were previously * Secretary. considered in the remanded Stipulation [FR Doc.73-25481 Filed 11-30-73;8:45 am] and Agreements,2 and need not be re­ [Docket No. RP74-39-21] peated here. The principal differences TEXAS EASTERN TRANSMISSION CORP. between the instant and the earlier Re­ [Docket No. RP72-98] vised Stipulation and Agreements may be Petition for Emergency Relief TEXAS EASTERN TRANSMISSION CORP. summarized as follows: N o v e m b e r 27, 1973. (1) The Instrument now before us On November 2, 1973, the Town of Order Approving Stipulation and Agreement proposes rates which are designed on an Utica, Mississippi (Utica) filed a Petition With a Condition as To Demand Charge unmodified Seaboard cost classification. for Emergency Relief, pursuant to § 1.7 Adjustments (2) The Demand Charge Adjustment (b) of the Commission’s rules of practice ^ N o v e m b e r 26, 1973. Provision is revised to eliminate any ad­ and procedure, requesting that the Com­ On July 25, 1973, Texas Eastern justment for gas supply deficiency. mission issue an interlocutory order in­ Transmission Corporation (Texas East- (3) The instant instrument provides creasing Utica’s annual entitlement., of tern) filed a Second Revised Stipulation for tracking of advance payments and Natural Gas by 6,547 M cf. and Agreement which closely follows proposes to amend the timing of the Utica claims that its present annual earlier Stipulation and Agreements sub­ effectiveness of rate increases due to ad­ entitlement of 57,800 Mcf is inadequate mitted in this proceeding except that vance payments. and does not allow the Town to meet a the instant Stipulation and Agreement (4) The Company is allowed rate base commitment for firm industrial service contains rates which are designed in treatment for $44,300,000 of advance made in 1970. Utica further claims that accordance with the principles set-out payments made prior to August 1, 1973. it did not receive the same considera­ in Seaboard.1 In our order of March 5, (5) The instant Agreement, proposes tion toward increasing its-entitlement as 1973, which pertained to the first pro­ that the conjunctive billing .matter shall did other customers of its sole supplier, posed Stipulation and Agreement we be considered in Texas Eastern’s next Texas Eastern Transmission Corporation. found unacceptable design of the rates general rate increase proceeding. The requested increase, Utica states, is contained stating: (6) The instant Agreement contains a needed by Kitchen Brothers Manufactur­ provision that upon approval oi the in­ In our order in this docket issued August 9, stant Stipulation and Agreement Texas ing Company, a small industrial customer 1972, * * * we stated we intended to review of the Town’s Gas System. Utica has our pricing mechanism of Texas Eastern, Eastern will withdraw its $97.1 million general rate increase filed July 31, 1973, classified Kitchen Brothers in priority- including cost classification, allocation and rate design in Docket No. RP72-98. The argu­ and provides further that Texas Eastern of-service category two.. Utica claims ments advanced by counsel and testimony shall not file a further general increase that Kitchen Brothers can find no alter­ presented on the record by witnesses in this in rates before the latter part of 1973. nate fuel, and that, being a firm cus­ proceeding in support of the settlem ent rate Following several conferences at which design has not convinced us that the pro­ all parties and our Staff were present, tomer, it is not equipped to use other posed rate design is just and reasonable and fuels. Kitchen Brothers has told Utica* in the public interest, or that any departure general agreement was reached as to the terms and conditions of the proposed set­ that unless it receives the nèeded gas it tlement. However, it is noted certain ex­ will shut down and move to another 2 A public hearing to determine whether ceptions to the Revised Agreement were locality. the curtailm ent plan filed with the Com­ m ission by Texas Eastern is just and reason­ taken on the record by Boston Gas Com- able began on November 13, 1973, and is s till 1 The petition was originally filed in Docket in progress. 2 See orders. issued March 5, 1973, and Nos. R P71-130 and RP72-58. 1 A tlan tic Seaboard Corp., et al., 11 FPC 43. June 28, 1973.

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 NOTICES 33339

(B) Comknission approval of the de­ oany et al. (the Algonquin Customer leads to higher commodity rates will help narrow the price gap between natural gas mand charge adjustment portion of the G roup), and the New York Public Serv­ settlement is subject to the final order ice Commission. The Algonquin Customer and competitive fuels. Also, since Sea­ in Docket No. RP71-130. Group opposes the use of estimated board rates will produce lower demand rates than tilted Seaboard rates there (C) Within 15 days from the date of rather than actual data for the annual issuance of this order Texas Eastern shall jurisdictional sales volumes utilized in will be less incentive for distributors to file revised tariff sheets to reflect the determining the level of rates to be make increased industrial sales. While we recognize that Seaboard rates rates contained in Appendices (C) and effective as of March 1, 1973, and opposes (D) of said Stipulation and Agreement the provision which would relieve Texas will not in and of itself result in a shift of gas away from industrial use we be­ filed on July 25, 1973. Eastern of making, demand charge ad­ (D) Within 30 days from the date of justments due to gas supply deficiencies. lieve it is a minimal but necessary step in the right direction. As we indicated in issuance of this order, Texas shall refund With respect to these points, we are of to its jurisdictional customers the dif­ the view that the use of estimated vol­ Opinion No. 671 issued October 31, 1973, in United Gas Pipe Line Company, Docket ference between the amounts collected umes for the determination of rates for from such customers pursuant to the Texas Eastern in the immediate future No. RP72-75 (Phase II) the design of pipeline rates On a volumetric basis may rates in effect from and after July 14, is appropriate and proper because of the 1972, and subject to review in this pro­ company’s deficiency in gas supply and be in order. However, in order to avoid possible disruption on United’s system ' ceeding and the amounts which would the inability of Texas Eastern to meet the have been collected had the rates filed increasing requirements of its customers. we concluded that 75 percent of fixed costs were to be assigned to the commod­ pursuant to Paragraph (C) above been In this regard, we believe that Texas in force in effect plus interest at the rate Eastern, as well' as any other pipeline ity component and 25 percent assigned to demand and left open the possibility of 7 percent per annum from the date of company under our jurisdiction, should collection of such excessive amounts to be afforded the opportunity to recover that in future pipeline rate cases it may be necessary to design rates for resale the date of refund. Texas Eastern shall the cost of service encountered in pro­ bear all costs incidental to the making viding service to its customers and that for industrial use at a level more in line with the cost of competitive fuels. of such refunds. such costs should reflect an appropriate (E) Within 45 days from the date of amount for return. We shall therefore Notwithstanding our action in United, since the settlement proposed herein was the issuance of this order, Texas Eastern accept and approve the Stipulation and shall report to the Commission in writ­ Agreement as hereinafter provided. We consummated prior to United we will ac­ cept the proposed settlement which re­ ing and under oath, the details of the note that the demand charge adjustment calculations with respect to the refunds provision is contained in Texas Eastern’s flects Seaboard rates. Consolidated Gas Supply Corporation required by paragraph (D) above, to­ May 31, 1973, filing in Docket No. RP71- gether with releases from each of its 130, et al., which by order issued Au­ in a filed statement informed the Com­ mission that it “supports the Second Re­ jurisdictional customers with respect to gust 30, 1973 we accepted effective such refunds. September 5, 1973, subject to refund vised Stipulation and Agreement as a reasonable, overall solution of the issues (P) The Commission’s action in the pending development of an evidentiary issuance of this order is not to be con­ record on the issues. Accordingly, our in this case” and adds that such “should not be construed to prejudice, in any way, strued as a concurrence in the cost of approval of that part of the settlement service determinations, and the alloca­ pertaining to the demand charge adjust­ Supply Corporation’s objections to the Atlantic Seaboard method.” tion method and the design principles' ment will be subject to the final outcome utilized in arriving at the rates and of the proceeding in RP71-130. Based upon our review of the terms and provisions of the proposed settlement charges setout in the Stimulation and The New York Public Service Commis­ Agreement, and neither the Commission, sion opposes the use of unmodified Sea­ and the full record in this proceeding we conclude that the provisions of the Stipu­ its Staff, or any other parties to the pro­ board rate design. The New York Com­ ceeding are to be prejudiced or bound mission contends that the use of un­ lation and Agreement as filed on July 25, 1973, provides a reasonable and appro­ thereby in future proceedings. modified Seaboard is meaningless as a (G ) This order is without prejudice device to ‘‘achieve the'Commission’s al­ priate disposition of the issues- in this proceeding and the public interest would to any findings or orders which have location and husbanding objectives” and, been or may hereafter be made by the further, that its use is harmful in that be served by our approval of the proposed settlement. Commission and is without prejudice to “it switches costs between Texas Eastr any claims or contentions which may be em’s customers.” The Commission finds made by the Commission, its Staff, Texas As to the objections of the New York (1) The settlement of this proceeding Eastern, or any party affected by this Commission, to the requirement of Sea­ on the basis of the Stipulation and Agree­ order, in any proceeding not pending, or board rate design we have stated beforea ment submitted by Texas Eastern on hereafter instituted by or against Texas our belief that in designing just and rea­ July 25, 1973, as herein modified, is Eastern, or any other company, person sonable pipeline rates we must recognize reasonable and proper and in the public or party affected by this order. the present gas supply situation and give interest in carrying out the provisions of (H ) Secretary shall cause prompt pub­ effect to market conditions particularly the Natural Gas Act and should be ap­ lication of this order in the F e d e r a l price of competitive fuels in determining proved and made effective, subject to the R e g i s t e r . the apportionment of cost between cus­ terms and conditions hereinafter ordered. By the Commission.1 tomers and market areas. Just as a rate (2) Good cause exists for the Commis­ sion to waive its applicable regulations [ s e a l ] K e n n e t h F . P l u m b , I design where unit Seaboard commodity under the Natural Gas Act in order that Secretary. costs historically may have been “ tilted” the tariff sheets to be filed by Texas East­ [FR Doc.73-25484 Filed ll-30-73;8:45 am] to enhance the competitive position of ern, as hereinafter provided, may become natural gas vis a vis alternate sources as effective March 1, 1973, as proposed in [Docket No. RI74r-49] an industrial fuel, a rate design which said Stipulation and Agreement. TEXAS PACIFIC OIL CO., INC. The Commission orders 3 El Paso Natural Gas Company, Docket No. Petition for Special Relief RP69-6, Opinion No. 600-A and order issued (A ) The Stipulation and Agreement May 8, 1972; M ichigan-W isconsin Pipe Line submitted by Texas Eastern on July 25, N o v e m b e r 26, 1973. Company, Docket No. RP72-113, order issued 1973, is incorporated by reference and is Take notice that on September 28,1973, April 10, 1973, N atural Gas Pipeline Com pany hereby approved and made effective sub­ Texas Pacific Oil Company, Inc. (Peti­ oi Ameriqa, Docket No. RP72-132, order issued tioner), 1700 One Main Place, Dallas, •July 18, 1973 and Colorado Interstate Gas ject to the terms and conditions of this Company, Docket No. RP72X113, order issued order and Texas Eastern shall comply 1 Com m issioner Brooke, dissenting, filed a July 5, 1973; United Gas Pipeline Company, with each of the provisions or said Stipu­ separate statem ent, filed as part of the orig­ Docket No. RP72-75, O pinion No. 671 issued inal document. October 31,1972. lation and Agreement, and this order.

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 No 231—Pt. I -----10 33340 NOTICES

Texas 75250, filed a petition for special stitute natural gas (SNG) to Transwest­ demand authorizations provided in its relief in Docket No. RI74-49, pursuant to em Pipeline with deliveries to be made currently effective service agreements § 2.76 of the Commission’s General Policy at the outlet of the plant facilities. Con­ with Pacific Lighting and Cities; and (4) and Interpretations. Petitioner requests currently, Transwestem Pipeline filed in Alternatively, should the Commission’s that it be granted special relief from the Docket No. CP73—211 an application pur­ Opinion No. 663 and accompanying order rate authorized in Opinion No. 586 and suant to section 7(c) of the Natural Gas be reversed or should the Commission seeks to collect from Natural Gas Pipe­ Act for authorization to construct and otherwise be vested with or determined line Company of America, its pipeline operate approximately 67 miles of 36- purchase, a price of 23.00 per Mcf at 14.65 to have jurisdiction over the facilities for inch pipeline for the transportation of production o f SNG and/or the transpor­ p.s.i.a. for gas sold under its FPC Gas such gas to its existing pipeline system, Rate Schedule No. 88 from four specified tation or sale for resale thereof, prior to including interconnecting facilities, and commingling with natural gas, Trans­ wells in the North Farnsworth and for the transportaton and resale of said westem Coal, Pacific Coal, and Western Smith-Perryton Fields, Ochiltree County, gas in a commingled stream in interstate request all necessary authorizations to Texas. Thë request for relief is based on commerce. On September 4, 1973, the the installation of compression which Pe­ Commission issued its Opinion No. 663 implement the project contemplated by titioner estimates will increase the re­ and order in those dockets declaring that the amended application, including the construction and operation of the coal maining recoverable reserves from the the coal gasification facilities and the gasification facilities and the 67-mile subject wells from 0.66 BCF to 1.1T BCF. 67-mile pipeline were not within its juris­ Any person desiring to be heard or to diction and dismissed the application in pipeline and for the transportation and make any protest with reference to said Docket No. CP73-212. Further, the Com­ delivery to Transwestem Pipeline of SNG produced in such plant f acilities. petition should on or before December 18, mission dismissed Transwestem Pipe­ The application indicates that the es­ 1973, file with the Federal Power Com­ line’s application in Docket No. CP73-211 mission, Washington, D.C. 20426, a pe­ insofar as it related to the 67 miles of 36- timated cost of Transwestem Pipeline’s tition to intervene or a protest in ac­ inch pipeline, but did not dismiss that interconnecting facilities is $231,000, cordance with the requirements of the which cost will initially be funded by portion of the application which related interim financing. Commission’s rules of practice and pro­ to the connecting facilities or the trans­ cedure (18 CFR 1.8 or 1.10). All protests portation of SNG after commingling with Applicants state that the gasification filed with the Commission will be consid­ natural gas. plant will be located about 28 miles ered by it in determining the appropriate The subject amended application re­ southwest of Farmington, New Mexico, action to be taken but will not serve to flects a restructuring of the original proj­ and the estimated cost thereof and the make the protestants parties to the pro­ ect pursuant to which Pacific Coal and 67-mile pipeline is $447,000,000. Appli­ ceeding. Any party wishing to become a Transwestem Coal will sell SNG directly cants further state the financing will be party to a proceeding or to participate to Transwestem Pipeline’s customers, initially provided by interim financing, as a party in any hearing therein must Pacific Lighting Service Company (Pa­ and later permanently financed by the file a petition to intervene in accordance cific Lighting) and Cities Service Gas issuance of bonds and capital stock. with the Commission’s rules. Company (Cities) with Transwestem The application indicates that the gas Pipeline providing the required transpor­ to be sold by Transwestern Coal and Pa- K e n n e t h F . P l u m b , \ cific Coal is needed by Pacific Lighting Secretary. tation service. Accordingly, Applicants request the following authorizations: and Cities to help in meeting the needs [FR Doc.73-25502 Filed 11-30-73;8:45 am] (1) Transwestem Coal requests au­ of their customers. thorization to sell for resale 62,500 Mcf Any person desiring to be heard or to make any protest with reference to said [Docket No. CP73-211 ] per day of SNG to Pacific Lighting at an existing Transwestem Pipeline delivery amended application should on or before TRANSWESTERN PIPELINE CO., ET AL. point near Needles, California, and December 10, 1973, file with the Federal Power Commission, Washington, D.C. Amended Application 62,500 Mcf per day of SNG to Cities at Transwestem Pipeline’s existing delivery 20426, a petition to intervene or a pro­ N o v e m b e r 23, 1973. points in Texas and Oklahoma j test in accordance with the requirements Take notice that on November 16,1973, (2) Pacific Coal requests authorization of the Commission’s rules of practice Transwestem Pipeline Company (Trans- to sell for resale 125,000 Mcf per day of and procedure (18 CFR 1.8 or 1.10). All westem Pipeline), P.O. Box 2521, Hous­ SNG to Pacific Lighting at Transwestem protests filed with the Commission will ton, Texas 77001, Transwestem Coal Pipeline’s existing delivery point near be considered by it In determining the Gasification Company (Trans western Needles, California; appropriate action to be taken but will not serve to make the protestants par­ Coal), P.O. Box 2521, Houston, Texas (3) Transwestem Pipeline requests au­ 77001, Pacific Coal Gasification Company ties to the proceeding. Any person wish­ thorization to construct and operate the ing to become a party to a proceeding or (Pacific Coal), 720 West 8th Street, Los tap and valves necessary to connect the Angeles, California 90017, and Western to participate as a party In any hearing 67-mile pipeline from the gasification therein must file a petition to intervene Gasification Company (Western), P.O. plant with Transwestern Pipeline’s Box 2134, Farmington, New Mexico in accordance with the Commission’s mainline, near Gallup, New Mexico, and rules. 87401, filed in Docket No. CP73-211 an to transport SNG produced by such plant amended application pursuant to section for Transwestem Coal and Pacific Coal Persons who have heretofore filed pro­ 7 of the Natural Gas Act for certificates from such point of Interconnection to tests or petitions to intervene need not of public convenience and necessity au­ the delivery points ref erred to in (1) and file again. ' thorizing the implementation of a project (2) above. Further, Transwestem Pipe­ involving the production of gas from line seeks authorization,' to the extent K e n n e t h F. P l u m b , coal, all as more fully set forth in the necessary, to make its proposed Rate Secretary. amended application which is on file with Schedules T - l, T-2, and T-3 effective; [FR Doc.73-25527 Filed ll-30-73;8:45 am] the Commission and open to public to charge as initial rates the rates de­ inspection. rived in accordance with the precedent [Project 2113] Transwestern Coal, Pacific Coal, and agreements among the parties set forth Western previously filed in Docket No. in Exhibit I to the amended application; WISCONSIN VALLEY IMPROVEMENT CO. CP73-212 an application pursuant to sec­ and, to reflect the agreement of the par­ Application for Change in Land Rights tion 7(c) of the Natural Gas Act for a ties that the quantities of gas delivered certificate of public convenience and to Pacific Lighting under Transwestem N ovember 23,1973. necessity authorizing the construction of Pipeline’s proposed Rate Schedule T-1 Public notice is hereby given that ap­ coal gasification facilities in San Juan and to Cities under proposed Rate plication for approval of a change in land County, New Mexico, and the sale of ap­ Schedules T-2 and T-3 shall be credited rights was filed May 22, 1972, under the proximately 250,000 Mef per day of sub­ against Transwestem Pipeline’s contract Federal Power Act (16 UJS.C. 791ar-825r)

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 NOTICES 33341 by the Wisconsin Valley Improvement near Pittsburgh, Pennsylvania. United The application may be inspected at Comp l y (Correspondence to: Mr. L. L. States Steel uses the gas directly in the the office of the Board of Governors or at Sheerar, Secretary, Wisconsin Valley Im­ manufacture of steel, the manufacture of the Federal Reserve Bank of Kansas City. provem ent Company, 501 Jefferson ammonia, and for generation of electric Any person wishing to comment on the Street, Box 988, Wausau, Wisconsin power. application should submit his views in 54401) licensee for Project No. 2113 In support of its petition Carnegie writing to the Secretary, Board of Gov­ which is located on the Wisconsin River states that the Nation cannot afford to ernors of the Federal Reserve System, a n d its tributaries in Marathon, Lincoln, lose the ammonia and other products Washington, D.C. 20551, to be received Oneida, Vilas, and Forest Counties, Wis­ which U.S. Steel manufactures using not later than December 20,1973. consin, and Gogebic County, Michigan. electricity generated with, the gas Car­ Board of Governors of the Federal Re­ Applicant seeks Commission approval negie purchases from TETCO. U.S. Steel serve System, November 23,1973. of a proposed conveyance of a 0.10 acre claims that upon the issue of Order No. [ s e a l ] T h e o d o r e E. A l l i s o n , parcel of project land to an adjacent 467-B, in March, 1973, which classified Assistant Secretary property owner, Spirit Haven, Inc. The gas for turbines as boiler fuel, it author­ of the Board. la n d is located on the south bank of the ized the replacement of the generators Spirit Reservoir of Project No. 2113 in with purchased power, but that the lead [PR Doc.73-25469 Piled 11-30-73:8:45 am] Tom ahaw k Township in Lincoln County, time for installation is such that it will Wisconsin. have to rely on its generators until FIRST NATIONAL STATE S pirit Haven, Inc, wishes to include the December, 1974. BANCORPORATION parcel in two lots which are part of its Carnegie further states that it is facing Order Approving Acquisition of Bank recreation development. The land around far greater curtailments than necessary the subject parcel is privately owned. in its high priority industrial uses be­ First National State Bancorporation, Licensee states that the instrument of cause of distortions arising out of Newark, New Jersey, a bank holding com­ conveyance would be a warranty deed TETCO’s implementation of an end use pany within the meaning of the Bank reserving to licensee flowage rights over curtailment plan. Specifically, Carnegie Holding Company Act, has applied for the lan d as presently held. opposes the use of a base year for cur­ the Board’s approval under section 3(a) Any person desiring to be heard or to tailment in which curtailment was al­ (3) of the Act (12 U.S.C. 1842(a) (3 )) to m ak f> any protest with reference to said ready occurring. acquire all of the voting shares (less di­ application should on or before Janu­ A shortened notice period in the pro­ rectors’ qualifying shares) of the suc­ ary 3, 1973, file with the Federal Power ceeding may be in the public interest. cessor by merger to Mechanics National Commission, Washington, D.C. 20426, in Any person desiring to be heard or to Bank of Burlington County, Burlington accordance with the requirements of the make protest with reference to said peti­ Township, New Jersey (Bank). The bank Commission’s rules of practice and pro­ tion should on or before December 11, into which Bank is to be merged has no cedure (18 CFR 1.8 or 1.10). All protests 1973, file with the Federal Power Com­ significance except as a means to fa­ filed with the Commission will be con­ mission, Washington, D.C. 20426, peti­ cilitate the acquisition of the voting sidered by it in determining the appro­ tions to intervene or protests in accord- shares of Bank. Accordingly, the pro­ posed acquisition of shares of the suc­ priate action to be taken but will not with the requirements of the Commis­ cessor organization is treated herein as serve to make the protestants parties to sion’s rules of practice and procedure (18 the proposed acquisition of the shares the proceeding. Persons wishing to be­ CFR 1.8 or 1.10). All protests filed with come parties to the proceeding or to par­ the Commission will be considered by it of Bank. ticipate as a party in any hearing therein in determining the appropriate action to Notice of the application, affording op­ portunity for interested persons to sub­ must file petitions to intervene in ac­ be taken but will not serve to make the cordance with the Commission’s rules. protestants parties to this proceeding. mit comments and views, has been given in accordance with section 3(b) of the The application is on file with the Persons wishing to become parties to this Commission and is available for public proceeding or to participate as a party in Act. The time for filing comments and views has expired, and the Board has inspection. any hearing therein must file petitions to considered the application and all com­ K e n n e t h F. P l u m b , intervene in accordance with the Com­ ments received in light of the factors set Secretary. mission’s rules. The petition is on file forth in section 3(c) of the Act (12 U.S.C. with the Commission and is available for [PR Doc.73-25528 Plied. ll-30-73;8:45 am] 1842(c)). public inspection. Applicant, the largest bank holding [Docket No. RP74-39-3 *] K e n n e t h F . P l u m b , company in New Jersey, controls eight Secretary. banks with aggregate deposits of approx­ TEXAS EASTERN TRANSMISSION [PR Doc.73-25624 Filed 11-30-73:8:45 am] imately $1.5 billion, representing 7.6 per­ CORP. cent of total deposits in commercial Petition for Emergency Relief banks in the State.1 Applicant’s acquisi­ FEDERAL RESERVE SYSTEM tion of Bank (deposits of almost $90 mil­ N o v e m b e r 29, 1973. EXCHANGE NATIONAL CORP. lion) would increase its share of com­ Public notice is hereby given that on mercial bank deposits in New Jersey by November 21,1973, Carnegie Natural Gas Formation of Bank Holding Company 0.5 percentage point and there would be Company (Carnegie) filed a petition for Exchange National Corporation, Ard­ no significant increase in the concen­ emergency relief pursuant to § 1.7(b) of more, Oklahoma, has applied for the tration of banking resources in the State. the Commission’s rules of practice and Board’s approval under section 3 (a)(1 ) Bank operates 15 offices in Burlington procedure, requesting that its gas supply of the Bank Holding Company Act (12 County, New Jersey; three of those of­ not be curtailed below last year’s level of fices are in the Philadelphia-Camden 45,240 Mcf per day. Carnegie expects U.S.C. 1842(a)(1)) to become a bank banking market2 and the remaining 12 that this year’s level of curtailment may holding company through acquisition of be three times as great as last year’s. 80 percent or more of the voting shares I AU banking data are as of December 31, Carnegie purchases gas under a firm of Exchange National Bank and Trust 1972; a ll m arket data are as of June 30, 1972, contract from Texas Eastern Transmis­ Company, Ardmore, Oklahoma, pursuant and reflect holding company form ations and acquisitions approved by the Board through sion Corporation (TETCO) in Green to a plan of reorganization under sec­ County, Pennsylvania, and transports, all Septem ber 30,1973. such gas to the United States Steel Cor­ tion 170a(B) of the Oklahoma Business a The Philadelphia-Cam den banking mar­ Corporation Act. The factors that are ket consists of Camden County and parts of poration (U.S. Steel) for industrial use Gloucester and Burlington Counties in New considered in acting on the application^ Jersey and Delaware County, Philadelphia 1 The petition was originally filed in Docket ore set forth in section 3(5) of the Act County, and parts of Chester, Montgomery, Nos. RP71-130 and RP72-58. (12 U.S.C. 1842(c)). and Bucks Counties in Pennsylvania.

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 33342 NOTICES

offices are in the Trenton banking mar­ It appears that consummation o f this increased and improved services would ket.3 In the former market there are a proposal is likely to have only a slightly provide customers in both markets with total of 50 commercial banking organiza­ adverse effect on future competition be­ an additional convenient source of full- tions which hold combined deposits of tween Applicant and Bank in the afore­ service banking. Moreover, Bank is the over $12 billion. Bank is the 24th largest mentioned banking markets. As an alter­ principal bank serving the area encom­ organization therein and controls depos­ native to acquiring Bank, Applicant passing the Fort Dix Army and McGuire its of approximately $41 million, repre- could enter the Philadelphia-Camden Air Force Bases. Bank’s activities and senting_only 0.3 percent of total market market by acquiring one of the market’s services are very limited at these loca­ deposits. Applicant is not represented in smaller independent banks, by forming a tions and Applicant plans to appreciably this market in which five of New Jersey’s de novo bank, or by branching into the increase those services. Therefore, con­ multibank holding companies are pres­ market through one of its existing sub­ venience and needs considerations are ent. The Board concludes that approval sidiaries. However, foreclosure of this significant and, in the Board’s judg­ of the proposed acquisition would not competition is not considered serious in­ ment, outweigh the proposal’s slightly eliminate existing competition or ad­ asmuch as the Philadelphia-Camden adverse effect on competition. It is the versely affect any banking organization market contains a large number of in­ Board’s judgment that the proposed in the Philadelphia-Camden banking dependent competitors and bank hold­ acquisition would be in the public inter­ market. ing company subsidiaries. Also, approval est and that the application should be The Trenton banking market is pres­ herein will enable Bank to compete more approved. ently served by 30 commercial banking effectively with the much larger banking On the basis of the record,4 the appli­ organizations holding combined deposits organiaztions already operating in this cation is approved for the reasons sum­ of $1.5 billion; Bank is the ninth largest market. marized above. The transaction shall not therein with deposits of over $40 million, Similarly, the Board does not find a be made (a) before the thirtieth calendar representing 2.7 percent of deposits in strong likelihood of significant competi­ day following the effective date of this the market. Pour of New Jersey’s multi­ tion developing between Applicant Order or Cb) later than three months bank holding companies, including Ap­ (through Central) and Bank in the after the effective date of this Order, plicant, are presently represented in the Trenton banking market. Legislation re­ unless such period is extended for good market. Applicant’s subsidiary, First Na­ cently enacted in the State permits cause by the Board or by the Federal tional State Bank of Central Jersey, branching by each bank into portions of Reserve Bank o f New York pursuant to Trenton (Central), operates three offices the market served by the other; thus, delegated authority. in the Trenton market with total deposits Central may now open branches in the o f $56.2 million and is the sixth largest Burlington County portion of the market By order of the Board of Governors,® bank with 3.9 percent of market deposits. while Bank is permitted to branch into effective November 23,1973- Upon consummation of the proposed ac­ Mercer County. However, the potential [ s e a l I C h e s t e r B. F e l d b e r g , quisition, Applicant would become the for such competition is small at present, Secretary of the Board. third largest banking organization in the as only three municipalities in the Bur­ [PR Doc.73-25488 Piled 11-30-73;8:45 am] Trenton market and hold 6.5. percent of lington portion of the market are pres­ total deposits therein. By comparison, the ently open to branching; such entry into first and second largest banking organi­ the market will be restricted until 1975 RICE INSURANCE AGENCY, INC. zations in the market would continue to when branch office protection is removed. Formation of Bank Holding Company hold 31 percent and 14 percent of those Furthermore, due to Bank’s low capital deposits, respectively, and 29 banking or­ position and poor earnings record, it Rice Insurance Agency, Inc., Stras- ganizations would remain in the Trenton does not appear that Bank is likely to burg, Colorado, has applied for the market. branch into the Mercer County portion Board’s approval under section 3(a) (1) The service areas of Bank and Central of the market in which Central operates. of the Bank Holding Company Act (12 do not overlap and the nearest existing Although consummation of the proposal UJS.C. 1842(a)(1)) to become a bank offices of the two banks are approxi­ would foreclose the possibility that Ap­ holding company through acquisition of mately eleven miles apart; there are plicant would expand in the Trenton 86 percent of the voting shares of The other banking alternatives located in the market through branches of its present First National Bank of Strasburg, Stras- intervening area. Central obtains nearly subsidiaries, the proposed acquisition burg, Colorado. The factors that are con­ all of its deposits in the Trenton market would not raise barriers to entry into sidered in acting on the application are whereas Bank derives approximately the Trenton market since numerous in­ set forth in section 3(c) of the Act (12 half of its deposits from the Philadel­ dependent banks would remain available U.S.C. 1842(c)). phia-Camden market and the remaining as possible vehicles for entry. On the Rice Insurance Agency, Inc., has also half from the Trenton market. In addi­ basis of these and other facts of record, applied, pursuant to section 4(c) (8) of tion, it should be noted that the respec­ the Board concludes that consummation the Bank Holding Company Act (12 tive Trenton market shares of Central of the proposed acquisition would not U.S.C. 1843(c) (8 )) and § 225.4(b) (2) of and Bank are generated from different have any significant adverse effect upon the Board’s Regulation Y, for permis­ portions of that market; accordingly, existing competition and would have sion to retain voting shares in Rice In­ upon approval, Applicant would develop only a slightly adverse effect on future surance Agency, Inc., of Strasburg, Colo­ business from a segment of the Trenton competition. rado. Notice of the applications was market in which it presently is not repre­ The financial condition and manage­ published on October 18, 1973, in The sented. Furthermore, Bank does not rial resources o f Applicant and Its sub­ Eastern Colorado News, a newspaper cir­ derive any meaningful business from the sidiary banks are satisfactory and future service areas of any of Applicant’s other prospects for all are favorable; upon con­ culated. in Strasburg, Colorado. Appli­ subsidiaries. The Board concludes that summation, Bank’s financial and man­ cant states that the proposed subsidiary approval of the proposed acquisition agerial resources will be satisfactory in would engage in the activities of acting would not eliminate significant existing view of Applicant’s commitment to in­ competition or adversely affect any bank­ ject into Bank an additional $2 million 4 Dissenting Statem ent erf Governor Bucher of equity capital. Applicant proposes to filed as part of the original docum ent. Copies ing organization in the Trenton banking available upon request to the Board of Gov­ market. assist Bank in offering new and improved services including trust, data processing, ernors of the Federal Reserve System, Wash­ ington, D.C. 20551, or to the Federal Reserve municipal financing, and international Bank of New York. * The Trenton banking m arket consists of services as well as an improvement in 5 Voting for this action: Vice Chairman Mercer County and parts of Burlington, Bank’s general lending policies. Although M itchell and Governors Daane and Holland. Ocean, Monmouth, Middlesex, and Somerset Voting against this action: Governor Bucher. Counties in New Jersey and the eastern por­ it appears that similar services are Absent and not voting: Chairm an Bum s and tion of Bucks County in Pennsylvania. presently available in Bank’s areas, the Governors Brim m er and Sheehan.

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 NOTICES 33343 as agent for all types of insurance, serv­ termination pursuant to the provisions GENERAL SERVICES icing a community not exceeding 5,000 of section 2(g) (3) of the Bank Holding ADMINISTRATION persons. Such activities have been speci­ Company Act of 1956 (12 U.S.C. 1841 fied by the Board in § 225.4(a) of Regu­ (g )(3 )), by Union Credit Corporation, EXECUTIVE BRANCH POSITION FOR lation Y as permissible for bank holding Huron, South Dakota (Union). R & D CENTERS Union, a bank holding company within companies, subject to Board approval of Notice for Comment individual proposals in accordance with the meaning of section 2(a) of the Bank the procedures of § 225.4(b). Holding Company Act of 1956, as Correction Interested persons may express their amended (12 U.S.C. 1841(a)), by reason views on the question whether consum­ of its ownership of 89.4 percent of the In FR Doc. 73-24933 appearing at mation of the proposal can “ reasonably issued and voting shares of stock of First page 32536 of the issue for Monday, No­ be expected to produce benefits to the Security Bank, Morristown, South Da­ vember 26, 1973, the date by which com­ public, such as greater convenience, in­ kota (Bank), seeks a Board determina­ ments were to be submitted was incor­ tion that its status as a bank holding creased. competition, or gains in effi­ rectly stated. On page 32537, in the first ciency, that outweigh possible adverse company has terminated as a result of effects, such as undue concentration of the sale and transfer of all of its shares column, second paragraph, the last sen­ resources, decreased or unfair competi­ of Bank, and its rights, title, and inter­ tence should read as follows: “to be tion, conflicts of interests, or unsound est in and to Morristown Insurance given consideration, written comments banking practices.” Any request for a Agency and McIntosh Insurance Agency, must be submitted not later than Janu­ hearing on this question should be ac­ to one, Stephen Adams. ary 25, 1974”. companied by a statement summarizing Union seeks a determination pursuant the evidence the person requesting the to section 2(g) (3) of the Act that it will hearing proposes to submit or to elicit at not be capable of controlling the afore­ the hearing and a statement of the rea­ mentioned Bank notwithstanding a sale National Archives and Records Service sons why this matter should not be re­ agreement' whereby approximately 42 percent of the remaining purchase price ACCESS TO 1900 CENSUS OF solved without a hearing. POPULATION The application may be inspected at of the Bank and insurance agencies will the offices of the Board of Governors or be paid to Union by the purchaser over Notice of Availability at the Federal Reserve Bank of Kansas a period of approximately four and one- City. ' half years, secured by a second lien on Pursuant to 44 U.S.C. 2104 and the Any views or requests for hearing the stock of Bank. regulations relating to Public Use of should be submitted in writing and re­ Section 2 (g)(3 ) of the Act provides Records, Donated Historical Materials, ceived by the Secretary, Board of Gov­ that shares transferred after January 1, and Facilities in the National Archives 1966, by any bank holding company (or ernors of file Federal Reserve System, and Records Service (41 CFR 105-61), Washington, D.C. 20551, not later than by any company which, but for such December 18,1973. transfer, would be a bank holding com­ notice is hereby given that the 1900 Cen­ pany) directly or indirectly to any. trans­ sus of Population in the custody of the Board of Governors of the Federal Re­ feree that is indebted to the transferor, Administrator of General Services is serve System, November 21, 1973. or has one or more officers, directors, available for historical, genealogical, [ s e a l ! T h e o d o r e E . A l l i s o n , trustees, or beneficiaries in common with and legal research in the Microfilm Re­ Assistant Secretary or subject to control by the transferor, of the Board. shall be deemed to be indirectly owned or search Room of the National Archives Building, 8th Street and Pennsylvania [PR Doc.73-25471 Filed 11-30-73:8:45 am ] controlled by the transferor unless the Board, after opportunity for hearing, de­ Avenue NW., Washington, D.C., in ac­ termines that the transferor is not in fact cordance with the Restriction Statement FORT WORTH NATIONAL CORP. capable of controlling the transferee. for Records erf the Bureau of the Census Proposed Acquisition of American Cattle It is ordered, That, pursuant to section and the Procedures Governing Access to and Crop Services Corp.; Correction 2 (g) (3) of the Act, an opportunity be and hereby is provided for filing a request for the Schedules of the Census of Popula­ In FR Document 73-24735 appearing hearing. Any such request should be sub­ tion in 1900. at page 32176 of the issue for Wednes­ mitted in writing (in duplicate) to the The restriction statement and the pro­ day, November 21, 1973, the first sen­ Secretary, _ Board of Governors of the cedures provide safeguards to prevent tence should have read: Federal Reserve System, Washington, The Fort Worth National Corporation, unwarranted invasion of privacy. They D.C. 20551, to be received on or before are effective immediately. Copies may be Fort Worth, Texas, has applied, pursu­ December 17,1973. The request for hear­ ant to section 4(c) (8) of the Bank Hold­ ing should contain a statement of the obtained by writing to: Director, Central ing Company Act (12 U.S.C. 1843(c)(8) ) nature of the requesting person’s inter­ Reference Division (N N C ), National and § 225.4(b) (2) of the Board’s Regu­ est in the matter, his reasons for wishing Archives (GSA), Washington, D.C. lation Y, for permission to engage in a to appear at an oral hearing, and a sum­ 20408. joint venture with Shawmut Associa­ mary of the matters concerning which tion, Inc., Boston, Massachusetts, and J a m e s B. R h o a d s , said person wishes to give testimony at Archivist of the United States. thereby to acquire voting shares of such hearing. The Board will subse­ American Cattle and Crop Services quently designate a time and place for N o v e m b e r 30, 1973. Corp., Guyman, Oklahoma, a de novo any hearing ordered, and will give notice [FR Doc.73-25605 Filed 11-30-73:8:45 am ] corporation. of such hearing to the transferor, the Board of Governors of the Federal transferee, and all persons who have re­ Reserve System, November 26, 1973. quested a hearing. In the absence of a INTERIM COMPLIANCE PANEL request for a hearing, the Board will pro­ [ s e a l I T h e o d o r e E . A l l i s o n , (COAL MINE HEALTH AND SAFETY) Assistant Secretary ceed with consideration of the requested of the Board. determination on the basis of docu­ FREEDMAN COAL MINING CORP. AND PEABODY COAL CO. [PR Doc.73-25467 Filed 11-30-73:8:45 am ] mentary evidence filed on or before De­ cember 17, 1973. Applications for Renewal Permits; Opportunity for Public Hearing UNION CREDIT CORP. By order of the Board of Governors, November 21, 1973. Request for Determination and Order Applications for Renewal Permits for Providing Opportunity for Hearing [ s e a l ! T h e o d o r e E . A l l i s o n , Assistant Secretary Noncompliance with the Interim Manda­ Notice is hereby given that a request of the Board. tory Dust Standard (2.0 mg/m*) have has been made to the Board of Governors of the Federal Reserve System for a de­ [FR Doc.73-25470 Filed 11-30-73:8:45 am ] been received as follows: FEDERAL REGISTER, VOL. 38, NO. 231— MONDAY, DECEMBER 3, 1973 33344 NOTICES

(1) ICP Docket No. 20178, FREEMAN COAL 11th floor conference room, Shoreham MINING CORPORATION, Orient #4 Lima Diamond, Advisory Committee Mine, Mine ID No. 11 00628 0, Marion, Building, 806 15th Street, Washington, Management Officer, National Endow­ Illin o is. D.C. ment for the Arts, Washington D C Section ID No. 036 (2nd South off A portion of this meeting will be open 20506, or call (202) 382-5871. Northwest). to the public on December 6 from 3 p.m. Section ID No. 033 (5th South off to 5:30 p.in. and on December 7 from J o y c e F r e e l a n d , Northwest). 9:30 a.m. to 12 pun. on a space available Acting Director of Administra­ Section ID No. 034 (3rd South off basis. Accommodations are limited. The tion, National Foundation on Northwest). remaining sessions of this meeting on the Arts and the Humanities. Section ID No. 031 (Northwest Chain P i l l a r s ). December 6 and 7 are for the purpose of [FR Doc.73-25537 Filed 11-30-73;8:45 am] Section ID No. 025 (Southeast En­ Panel review, discussion, evaluation, and t r ie s ), recommendation on applications for fi­ OFFICE OF MANAGEMENT AND Section ID No. 035 (6th North off nancial assistance under the National Southeast). Foundation on the Arts and the Human­ BUDGET (2) ICP Docket No. 20249, PEABODY COAL ities Act of 1965, as amended, including ADVISORY COMMITTEE ON 6NP DATA , COMPANY, River King Underground discussion of information given in confi­ IMPROVEMENT No. 1 Mine, Mine ID No. 11 00725 0, dence to the agency by grant applicants. Freeburg, Illinois. Notice of Public Meeting Section ID No. 001 (Main West En­ In accordance with the determination of t rie s ) . the Chairman published in the Federal Pursuant to Public Law 92-463, notice Section ID No. 012 (Sub-m ain West Register of January 10, 1973, these ses­ is hereby given of a meeting of the Ad­ E n t r i e s ). sions, which involve matters exempt from visory Committee on GNP Data Improve­ Section ID No. 009 (Main East En­ the requirements of public disclosure ment to be held in Room 10104, New Ex­ t rie s ) . under the provisions of the Freedom of ecutive Office Building, 726 Jackson Section ID No. 010 (35th North Information Act (5 U.S.C. 552(b) (4), Place NW., Washington, D.C., on Tues­ P a n e l ) . day, December 18, 1973, at 9:45 a.m. Section ID No. 004 (M ain South En­ (5), and (6) ), will not be open to the t rie s ) . public. The purpose of the meeting is to con­ Section ID No. 014 (40th North Further information with reference to sider additional evidence on the sources P a n e l ) . this meeting can be obtained from Mrs. of revisions in the quarterly GNP esti­ Section ID No. 016 (45th North Luna Diamond, Advisory Committee mates and to discuss specific data gaps P a n e l ) . Management Officer, National Endow­ in the 5-year 1-0 benchmarks and in Section ID No. 020. ment for the Arts, Washington, D.C. the annual benchmarks. Section ID No. 018 (Main North En­ 20506, or call (202) 382-5871. The meeting will be open to public trie s (le f t s i d e ) ) . S ec tio n I D N o . 019. observation and participation. Anyone J o y c e F r e e l a n d , wishing to participate should contact the Section ID No. 017 (Main North En­ Acting Director of Administra­ trie s (r ig h t s i d e ) ) . GNP Data Improvement Project, Statis­ tion, National Foundation on. tical Policy Division, Room 10222, New In accordance with the provisions of the Arts and the Humanities. Executive Office Building, Washington, section 202(b) (4) (30 U.S.C. 842(b) (4 )) [FR Doc.73-25536 Filed 11-30-73:8:45 am ] D.C. 20503, telephone (202)-395-3793. of the Federal Coal Mine Health and Safety Act of 1969 (83 Stat. 742, et seq., V e l m a N . B a l d w i n , Public Law 91-173), notice is hereby LITERATURE ADVISORY PANEL Assistant to the Director for Administration. given that requests for public hearing as Notice of Meeting to an application for renewal may be filed [FR Doc.73-25452 Filed ll-30-73;8:45 am] within 15 days after publication of this Pursuant to section 10(a)(2) of the notice. Requests for public hearing must Federal Advisory Committee 4ct (Public be filed in accordance with 30 CFR Part Law 92—463), notice is hereby given that AMERICAN STATISTICAL ASSOCIATION 505 (35 FR 11296, July 15, 1970), as a meeting of the Literature Advisory ADVISORY COMMITTEE ON STATISTI­ amended, copies of which may be ob­ Panel to the National Council on the Arts CAL POLICY will be held at 9:30 a.m. on December 12, tained from the Panel on request. Notice of Public Meeting A copy of the application is available 1973, and at 9:30 a.m. on December 13, for inspection and requests for public 1973, in the Liberty Room, New York Pursuant to Public Law 92-463, notice hearing may be filed in the Office of the Sheraton Hotel, 870 5th Avenue, New is hereby given of a meeting of the Amer­ Correspondence Control Officer, Interim York, New York 10019. ican Statistical Association Advisory Compliance Panel, Room 800, 1730 K A portion of this meeting will be open Committee on Statistical Policy to be Street NW., Washington, D.C. 20006. to the public on December 13 from 1:30 held in Room 10103, New Executive Of­ p.m. to 5 p.m. on a space available basis. fice Building, 726 Jackson Place NW., G e o r g e A . H o r n b e c k , Accommodations are limited. The re­ Washington, D.C., on December 10, at Chairman, maining sessions of this meeting on De­ 10 a.m. Interim Compliance Panel. cember 12 and 13 are for the purpose of The purpose of the meeting is to hear remarks from the Acting Chief of the N o v e m b e r 27, 1973. Panel review, discussion, evaluation, and Statistical Policy Division on recent ac­ [FR Doc.73-25472 Filed ll-30-73;8:45 am] ' recommendation on applications for fi­ nancial assistance under the National tions which affect the Federal statisti­ Foundation on the Arts and the Humani­ cal system and on the progress towards NATIONAL FOUNDATION ON THE ties Act of 1965, as amended, including achieving the OMB Management by Ob­ ARTS AND THE HUMANITIES discussion of information given in con­ jectives Projects in statistics and to hear fidence to the agency by grant appli­ staff reports on a GNP data improve­ FEDERAL-STATE PARTNERSHIP/SPECIAL ment project and on setting guidelines PROJECTS ADVISORY PANEL cants. In accordance with the determina­ tion of the Chairman published in the for maintaining confidentiality in statis­ Notice’of Meeting F e d e r a l R e g i s t e r of January 10, 1973, tics. The committee will also discuss and Pursuant to section 10(a)(2) of the these sessions, which involve matters ex­ give counsel on conditions of release of Federal Advisory Committee Act (Public empt from the requirements of public the Decennial Census and on developing Law 92-463), notice is hereby given that disclosure under the provisions of the statistics to measure program effective­ a meeting of the Federal-State Partner- Freedom of Information Act (5 U.S.C. ness. The meeting will be open, to pub­ ship/Special Projects Advisory Panel to 552(b) (4), (5), and (6 )), will not be lic observation and participation. the National Council on the Arts will be open to the public. Anyone wishing to participate should held at 9:30 a.m. on December 6, 1973, Further information with reference to contact the Acting Chief, Statistical Pol­ and 9:30 a.m. on December 7,1973, in the this meeting can be obtained from Mrs. icy Division, Room 10202, New Executive

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 NOTICES 33345

10 cents; 85 cents over I pound but not (ii) Other countries: $1.55 for the first Office Building, Washington, D.C. 20503, 2 pounds and $.45 cents for each addi­ telephone 202—395—4716. over 2 pounds; $1.16 over 2 pounds but not over 4 pounds; 58 cents each addi­ tional pound or fraction. V e l m a N. B a l d w i n , tional 2 pounds over 4 pounds. B. Exceptional surface rates— 1. Assistant to the Director 4. Small packets. 8 cents each 2 Postal Union of the Americas and Spain for Administration. ounces up to 16 ounces, minimum charge (PUAS) countries: [FR Doc.73-25453 Filed 11-30-73:8:45 am i 10 cents. To Mexico only, 85 cents over 1 pound up to 2 pounds. 5. Parcel post. $1.40 for the first 2 Books and Publishers’ Publishers’ DEPARTMENT OF HEALTH, sheet second controlled pounds and .40 for each additional Ounces music 11 , class 1 circulation EDUCATION, ANO WELFARE pound or fraction. Food and Drug Administration B. Exceptional surface rates for 2...... $0.20 $0.04 $0.06 4...... 20 .06 .08 [Docket No. FDC-D-641; NDA No. 16-865] printed matter— 1. Canada: 8 ...... 20 .10 .13 16...... 20 .17 .24 .28 • 41 EDISON PHARMACEUTICAL CO., INC. Books and Publishers’ Publishers’ 32...... 28 .48 .48 .69 Ounces sheet second controlled 64...... Co-Thyro-Bal; Final Order on Objections music class circulation Each addi­ Request for a Hearing Regarding tional 32 and ounces____ .24 .24 .34 Refusal To Approve New Drug Appli­ 2...... - ...... $0.20 $0.04 $0.06 cation 4 ______- .20 .07 .06 .13 i Except Canada. 8 _ /...... 201 .11 * Except Spain and Spanish possessions. Correction I f i... .20 .20 .24 32...... 34 .34 • 41 In PR Doc, 73-23296, appearing at page ,.69 6 4 .______- ...... 67 .57 2. Other countries: 30121 in the issue of Thursday, Novem­ Each addi- tional 32 ber 1,1973, on page 30123, third column, .29 .29 .34 ounces. . Books and Publishers' Publishers’ 18th line, insert between “ alone” and Ounces sheet second controlled “with” the word “than” , _ - m usic class circulation 2. Mexico:

- POSTAL SERVICE 2 ...... ______; $0.20 $0.04 $0.06 Books and Publishers’ Publishers' .20 .07 .08 Ounces sheet second controlled 4 ______INTERNATIONAL POSTAGE RATES AND miifiin class circulation .2 0 .11 . 13 FEES 16 - ___ .20 .20 .24 3 2 ... ------.34 .34 .41 .57 .69 Proposed Changes $0.06 64______.57 2...... $0.20 $0.04 Each addi- 4 ______.2 0 .06 .08 In a notice published in the daily issue .13 tional 32 .20 .10 ou nces------.29 .29 .34 of the F e d e r a l R e g i s t e r of October 19, 16...... 20 .17 .24 1973 (38 PR 29198), the Postal Service 32 ...... 28 .28 .41 64...... 48 .48 .69 announced temporary changes in cer­ Each additional C. Airmail— 1. Letter mail. (!) Central .34 tain domestic postal rates and fees ef­ 32 ounces____ . 2 t ^ 2 4 America, South America, the Caribbean fective January 5, 1974, and noted that Islands, Bahamas, Bermuda, and St. it expected shortly to publish a further C. Airmail rates— 1. Letter mail. 13 Pierre and Miquelon; 21 cents per half notice with respect to changes in rates cents per ounce. ounce up to and including 2 ounces, 17 and fees for international mail. 2. Post and postal cards. 11 cents each. Pursuant to its authority under 39 3. Unsealed printed matter, matter for cents each additional half ounce. UBjC. 407, the Postal Service proposes to the hlind, and small packets. (i) To Can­ (ii) Other countries. 26 cents per half change; effective January 5,1974 (subject ounce up to and including 2 ounces, 21 to Cost of Living Council procedures), ada. Letter mail rates. cents each additional half ounce. certain rates of postage and fees on in­ (ii) To Mexico. .50 cents for the first ternational mail to the levels indicated in 2 ounces and 13 cents for each additional (iii) as an exception to (ii) above air­ mail letters from American Samoa to the tables below. 2 ounces. Although 39 U.S.C. 407 does not require 4. Air parcel post, (i) T o Canada. Let­ Western Samoa and from Guam to the advance notice and opportunity for sub­ ter mail rates. Republic of the Philippines: 21 cents mission of comments and the Postal (ii) To Mexico. $1.42 first 4 ounces andper half ounce up to and including 2 Service is exempted by 39 U.S.C. 410(a) ounces, 17 cents each additional half from the advance notice requirement of 28 cents each additional 4 ounces. ounce. the Administrative Procedure Act re­ II. COUNTRIES OTHER THAN CANADA AND 2. Aerogrammes, air post and postal garding proposed rulemaking (5 U.S.C. MEXICO 553), the Postal Service invites interested cards. 18 cents each. persons to submit written data, views, or A. Regular surface rates— 1. Letter 3. Airmail other articles (printed mat­ mail, printed matter, and small packets: arguments concerning the proposed ter, matter for the blind, and small changes in rates of postage and fees for packets>. (i) Mexico, Central America, international mail. Such materials Ounces Letter Printed Small should be addressed to the Manager, mail matt«: packets the Caribbean Islands, Bahamas, Ber­ Rates Division, Finance Department, muda, and St. Pierre and Miquelon: 50 U.S. Postal Service, 475 L ’Enfant Plaza 1 - • -y^> $.18 $.10 $.18 cents for the first 2 ounces and 13 cents 9. . - - .31 .10 .18 West SW., Washington, D.C. 20260, and A - - _ __ ; ■ x .41 .16 .18 for each additional 2 ounces. submitted on or before December 12, .92 .32 .35 .58 (ii) South America, Europe (except 1973. ' ___ L 1.74 .66 2.89 .85 L 04 Estonia, Latvia, Lithuania, and UJS.S.R.), 64...... 4.62 1.16 - P r o p o s e d R a t e a n d F e e C h a n g e s Each additional 32 - and Mediterranean Africa: 60 cents for ounces...... — . .58 — I. CANADA AND MEXICO the first 2 ounces and 24 cents each addi­ A. Regular surface rates— f. Letter 2. Post and postal cards. 12 cents each. tional 2 ounces. (iii) Other countries: 70 cents for the mail. 10 cents per ounce up to 12 minces; 3. Parcel post, (i) Central America, eighth zone priority mail rates for heav­ first 2 ounces and 35 cents for each addi­ ier weights. the Caribbean Islands, Bahamas, Ber­ tional 2 ounces. 2. Post and postal cards. 8 cents each. muda, and St. Pierre and Miquelon; 4. Air parcel post. Individual country 3. Printed matter. 8 cents each 2 $1.40 for the first 2 pounds and $.40 for rates increased by 15 percent (rounded up to the nearest cent). ounces up to 16 ounces, minimum charge each additional pound or fraction.

FEDERAL REGISTER, V O L 38, NO. 231— M O N D AY, DECEMBER 3, 1973 33346 NOTICES

III. FEES Securities and Exchange Commission, holding company to subsidiaries, (3) re­ A. Customs clearance and delivery. The Washington, D.C. 20549. A copy of such demption and retirement of bonds by fee on dutiable postal union mail other request should be served personally or subsidiary, (4) issue and sale of short­ 1han small packets will be increased to by mail (air mail if the person being term note by subsidiary to bank, (5) 50 cents. The fee on dutiable small served is located more 'than 500 miles sale of subsidiary’s securities from one packets and parcel post will be increased from the point of mailing) upon the de­ subsidiary to a second subsidiary, (6) as­ to 80 cents. clarants at the above-stated address, and sumption of one subsidiary’s short-term B. Request for recall or change of ad­ proof of service (by affidavit or, in case debt obligation by a second subsidiary dress. The fee will be increased to 75 of an attomey-at-law, by certificate) ,and (7) amendment of subsidiary’s cents. should be filed with the request. At any bylaws. C. Inquiries. The fee will be increased time after said date, the declaration, as Notice is hereby given that Eastern to 35 cents. filed or as it may be amended, may be Utilities Associates (EUA), a registered permitted to become effective as provided holding company, and its electric util­ (39 U.S.C. 401, 403, 404(2), 407, 410(a).) in Rule 23 of the general rules and regu­ ity subsidiary companies, Blackstone R o g e r P , C r a i g , lations promulgated under the Act, or Valley Electric Company (Blackstone) Deputy General Counsel. the Commission may grant exemption and Brockton Edison Company (Brock­ from its rules as provided in Rules 20(a) [PR Doc.73-25436 Piled ll-30-73;8:45 am] ton) , have filed an application-declara­ and 100 thereof or take such other action tion and amendments thereto with this as it may deem appropriate. Persons who Commission designating sections 6(a), SECURITIES AND EXCHANGE request a hearing or advice as to whether 7, 9(a), 10, 12(b), 12(c), and 12(f) of COMMISSION a hearing is ordered will receive notice of the Public Utility Holding Company Act further developments in this matter, in­ [7 0-54 2 4] of 1935 (Act) and Rules 43(a) and 45(a) cluding the date of the hearing (if o r-’ promulgated thereunder as applicable to ALABAMA POWER CO. AND ALABAMA dered) and any postponements thereof. L ROPERTY CO. the proposed transactions. All interested For the Commission, by the Division of persons are referred to the application- Proposed Capital Contributions to Wholly- Corporate Regulation, pursuant to dele­ declaration, as amended, which is sum­ owned Non-utility Subsidiary gated authority. marized below, for a complete statement N o v e m b e r of the proposed transactions. 23, 1973. I s e a l ] G e o r g e A . F i t z s i m m o n s , Notice is hereby given that Alabama Secretary. EUA proposes a series of transactions designed to effect the transfer of Black- Power Company (Alabama), an electric [PR Doc.73-25463 Piled 11-30-73;8:45 am ] - utility subsidiary of The Southern Com­ stone’s proportionate ownership in the pany, a registered holding company, and securities of Montaup Electric Company Alabama Property Company (APCO), [P ile N o . 5 00 -1 ] (Montaup), the EUA system generating P.O. Box 2641, Birmingham, Alabama company, to Brockton, with the result CONTINENTAL VENDING MACHINE that Brockton will own 81 percent of 35291, a non-utility subsidiary of Ala­ CORP. bama, have filed a declaration with the Montaup and EUA’s other electric utility Commission pursuant to the Public Util­ Suspension of Trading subsidiary, Fall River Electric - Light Company (Fall River), will continue to ity Holding Company Act of 1935 (A c t), N o v e m b e r 23,1973. designating section 12 of the Act and own 19 percent. It appearing to the Securities and Ex­ All of Montaup’s outstanding securi­ Rule 45 promulgated thereunder as ap­ change Commission that the summary plicable to the following proposed trans­ ties (other than short-term notes to suspension of trading in the common banks) presently owned by Blackstone action. All interested persons are referred stock of Continental Vending Machine to the declaration, which is summarized (33 percent), Brockton (48 percent), and Corporation being traded otherwise than Fall River (19 percent), consist of de­ below, for a complete statement of the on a national securities exchange is re­ proposed transaction. benture bonds, preferred stock and com­ quired in the public interest and for the mon stock (Montaup securities), of Declarants state that APCO requires protection of investors; additional working capital to continue to which Blackstone’s present share, which Therefore, pursuant to section 15(c) (5) it proposes to sell to Brockton, equals acquire and hold real property for future of the Securities Exchange Act of 1934, use by Alabama. APCO’s working capital $13,068,000 aggregate principal amount trading in such securities otherwise than of debenture bonds of six series; 5,000 has generally consisted of periodic cash on a national securities exchange is sus­ advances from Alabama not exceeding shares of preferred stock ($500,000 ag­ pended, for the period from November 26, gregate par value) and 95,320 shares of an aggregate of $50,000 annually. Ac­ 1973, through December 5,1973. * cordingly, Alabama proposes to make common stock ($9,532,000 aggregate par capital contributions to APCO, from time By the Commission. value). Blackstone’s Montaup securities are to time prior to or on December 31, 1975, . [ s e a l ] S h i r l e y E. H o l l i s , in an aggregate amount of $300,000. pledged as security under its Indenture Senior Recording Secretary. of Mortgage and Deed of Trust dated as Alabama and APCO request authority [FR Doc.73-25455 Piled 11-30-73;8:45 am ] of November 1, 1943, and in order that to file certificates of notification pursu­ it may sell its Montaup securities it is ant to Rule 24 on a quarterly basis. necessary for Blackstone to secure their Declarants state that no State or Fed­ [7 0 -5 3 8 8 ] release under the Indenture. Blackstone eral commission, other than this Com­ Ea s t e r n u t i l i t i e s a s s o c i a t e s , e t a l . accordingly proposes to retire its two mission, has jurisdiction over the pro­ outstanding series of bonds (due 1983 and posed transaction. The fees and expenses’ Filing of Application 1997) under the Indenture. The bonds to be incurred in connection with the N o v e m b e r 21, 1973. to be retired aggregate $9,196,000 in proposed transaction total $2,600. In the matter of, EASTERN UTILI­ principal amount and Blackstone will Notice is further given that any inter­ TIES ASSOCIATES, P.O. Box 2333, Bos­ pay a redemption price of 101.675 per­ ested person may, not later than Decem­ ton, Massachusetts 02107, BLACKSTONE cent of the principal amount for the ber 18, 1973, request in writing that a VALLEY ELECTRIC COMPANY, P.O. series due 1983 (if that series is redeemed hearing be held on such matter, Stating Box 1111, Lincoln, Rhode Island 02685, before March 1, 1974) and a redemption the nature of his interest, the reasons for BROCKTON EDISON COMPANY, 36 price of 106.75 percent of the principal such request, and the issues of fact or law Main Street, Brockton, Massachusetts amount for the series due 1997 (if that raised by said declaration which he de­ 02403. sires to controvert; or he may request series is redeemed before June 1, 1974). that he be notified if the Commission Notice of proposed: (1) Issue and sale Blackstone will pay a total premium of should order a hearing thereon. Any such of short-term notes to banks by holding $508,185 to redeem both series of bonds. request should be addressed; Secretary, company, (2) open account advances by Blackstone has previously retired bonds

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 NOTICES 33347 due November 1,1973, with funds author­ gust 15,1973, in the case of the loan from curities of Montaup held by the owner ized pursuant to an order in -this pro­ Chase, and computed from July 5, 1973, companies and thereby became the prin­ ceeding on October 30, 1973 (Holding in the case of the loan from FNCB, to cipal vehicle for raising capital for Company Act Release No. 18142). the date each borrowing is made. As to Montaup. To enable Blackstone to finance the the FNCB loan, EUA will maintain a It is stated that a further consequence redemption of the bonds due 1983 and $100,000 balance in an account with of the present system is that Blackstone 1997, EUA will borrow $10,500,000 from FNCB while such loan is outstanding. must Ray Rhode Island State tax on the The Chase Manhattan Bank (N.A.) Brockton proposes to purchase Black­ income it receives from the Montaup se­ (Chase), issuing to Chase its note in that stone’s Montaup securities for: (1) Cash curities and that Brockton must pay amount, maturing in not more than 90 in an amount equal to the cost to Black­ Massachusetts State tax on the income days, bearing interest at 115 percent of stone of its Montaup securities ($23,100,- it receives from the Montaup securities. 000) plus an amount equal to Black- If Blackstone sells it Montaup securities the prime rate in effect at Chase from to Brockton then: (1) Blackstone will no time to time, and prepayable in whole stone’s equity (33 percent on and after or part without penalty. There is no October 25, 1973) as of the end of the longer have income from Montaup on compensating balance required in con­ calendar month next preceding such sale which it would have to pay the Rhode Island tax, and (2) Brockton’s stock nection with the loan. Assuming a prime in the unappropriated retained earnings of Montaup (said equity amount to ownership in Montaup would be in­ rate of 9V2 percent the interest rate on creased to more than 80 percent, which the loan would be 10.93 percent. EUA will $2,162,140 as of August 31, 1973, calcu­ lated on the 33 percent ratio), dimin­ under Massachusetts law would free also borrow $200,000 from the First Na­ Brockton from the Massachusetts tax on tional Bank of Boston pursuant to au­ ished by the amount of the obligations the Montaup dividends. The annual ag­ thorization granted June 29,1973 (Hold­ of Blackstone under the FNCB loan at ing Company Act Release No. 18012). that time, and (2) Brockton’s assump­ gregate amounts of tàx savings would tion of Blackstone’s obligations under be $151,858; $232,690; and $313,522 per EUA will advance the $10,700,000 so bor­ year after the 1973, 1975, and 1977 fi­ rowed to# Blackstone on open account the FNCB lokn. under an agreement providing, among Blackstone will apply as large a por­ nancing of Montaup, respectively. It is stated that the proposed acqui­ other things, that the advance will be tion as possible of the cash received from sition by Brockton of Blackstone’s Mon­ subordinated to rights of holders of Brockton as consideration for the Mon­ taup securities and the proposed assump­ preferred stock of Blackstone and that taup securities to reduce outstanding ad­ tion by Brockton of the FNCB Loan Blackstone will pay EUA interest there­ vances made by EUA to Blackstone and (with maturity extended to a term on at rates incurred by EUA on the ag­ to reduce short-term unsecured borrow­ ings of Blackstone from banks. EUA will greater than one year) are subject to the gregate of the $10,700,000 of borrowings. jurisdiction of the Department of Public Blackstone will deposit the requisite apply any such cash received from Utilities of the Commonwealth of Massa­ amount to redeem the 1983 and 1997 Blackstone to reduce its $11,000,000 bor­ chusetts. It is also stated that the pro­ bonds with the Trustee under the Inden­ rowing from Chase, as described below. posed amendment of the Montaup Con­ ture and will procure the discharge of For Brockton to obtain the funds re­ quired to purchase Blackstone’s Mon­ tract is subject to the jurisdiction of the the Indenture and the release of all of Federal Power Commission. Under an the property pledged and mortgaged taup securities, EUA will borrow up to under it, including its Montaup $11,000,000 from Chase on the same order of the Department of Public Util­ ities of the Commonwealth of Massachu­ securities terms as the previously described Chase In order to repay EUA $25,000,000 of loan and make an advance on open ac­ setts, a copy of that amendment is also the $25,200,000 in advances made to count to Brockton in the same amount. required to be filed with that Depart­ Blackstone in connection with the pre­ EUA’s cash advance to Brockton will be ment and will be subject to the Depart­ vious and proposed bond redemptions, under an agreement providing that the ment’s review. It is stated that no other it is further proposed that upon dis­ advance will be subordinated to Tights State commission and no Federal com­ mission, other than this Commission, has charge of its Indenture, Blackstone bor­ of holders of preferred stock of Brockton row $25,000,000 from Chase, issuing to and that Brockton will pay EUA interest jurisdiction over the proposed transac­ Chase its note in that principal amount, thereon at the rate incurred by EUA on tions. Fees and expenses to be incurred in connection with the proposed trans­ maturing in 360 days, bearing interest the borrowing. actions will be supplied by amendment. at 115 percent of the prime rate and It is stated that the Montaup contract Notice is further given that any inter­ secured by a lien on certain physical would be amended to expressly permit assets' of Blackstone. No compensating the pledge of Blackstone’s Montaup se­ ested person may, not later than Decem­ balance will be required in connection curities to FNCB and that Montaup’s ber 17, 1973, request in writing that a By-Laws would be amended by action of hearing be held on such matter, stating with this borrowing. the nature of his interest, the reasons for Blackstone also proposes to borrow the owner companies as stockholders to such request, and the issues of fact or $15,000,000 from First National City eliminate existing restrictions on trans­ Bank (FNCB), issuing its note to FNCB fer of the Montaup securities. It is law raised by said application-declara­ in that principal amount, maturing in also stated that the Montaup contract tion, as amended, .which he desires to cóntrovert; or he may request that he be 360 days, bearing interest at 115 percent would be further amended to permit Blackstone, though no longer a stock­ notified if the Commission should order a of the base rate in effect at FNCB and hearing thereon. Any such request secured a lien on Blackstone’s Montaup holder company, to receive its power re­ quirements from Montaup on the same should be addressed: Secretary, Securi­ securities. The note and a loan agree­ ties and Exchange Commission, Wash­ ment between Blackstone and FNCB will terms as those on which Brockton and Fall River purchase their power from ington, D.C. 20549. A copy of such re­ provide, among other things, that the quest should be served personally or by note may be assumed by Brockton and Montaup. mail (air mail if the person being served that in the event of such assumption, the Applicants-declarants state that in order for Montaup to raise permanent is located more than 500 miles from the maturity of the note will be extended • point of mailing) upon the applicants- (subject to regulatory approvals) to ma­ capital, it must sell securities to the owner companies in proportion to their declarants at the above-stated addresses, ture five years from the date of its is­ and proof of service (by affidavit or, in respective demands for power. The three suance. Blackstone will utilize - the case of an attomey-at-law, by certifi­ owner companies in turn must sell their $15,000,000 borrowed from FNCB to re­ cate) should be filed with the request. At duce open account advances previously securities to the public (or to EUA) any time after said date, the declaration, which when divided into'three compo­ made by EUA to Blackstone. as amended or as it may be further nents of capitalization may amount to as With respect to the loans from Chase amended, may be permitted to become and from FNCB, Blackstone will in each many as nine transactions. It is stated effective as provided in Rule 23 of the case pay to. the lending bank a commit­ that the cost associated with such fi­ ment fee at the rate of V2 percent of 1 nancing of Montaup could be lowered if general rules and regulations promul­ Percent per annum, computed from Au­ Brockton increased its portion of the se- gated under the Act, or the Commission

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 No. 231—Pt. I -----11 33348 NOTICES

may grant exemption from such rules and otherwise than on a national secu­ [File No. 500-1] as provided in Boles 20(a) and 100 rities exchange is suspended, for the pe­ thereof or take such other action as it riod from November 26, 1973, through SAYRE AND FISHER CO. may deem appropriate. Persons who re­ December 5, 1973. Suspension of Trading quest a hearing or advice as to whether a hearing is ordered will receive notice By the Commission. November 21, 1973. of further developments in this matter, [ s e a l ] S h i r l e y E . H o l l i s , It appearing to the Securities and Ex­ including the date of the hearing (if Senior Recording Secretary. change Commission that the summary ordered) and any postponements suspension of trading in the common thereof. [PR Doc.73-25457 Piled ll-30-73;8:45 am ] stock of Sayre and Fisher Company being traded otherwise than on a national For the Commission, by the Division [Pile No. 500-1] securities exchange is required in the of Corporate Regulation, pursuant to public interest and for the protection of delegated authority. PATTERSON CORP. investors;

[ s e a l ] G e o r g e A . F i t z s i m m o n s , Suspension of Tra ing Therefore, pursuant to section 15(c) (5) of the Securities Exchange Act of Secretary. N o v e m b e r 21, 1973. 1934, trading in such securities other­ [PR Doc.73-25462 Piled ll-30-73;8:45 Sm ] It appearing to the Securities and Ex­ wise than on a national securities ex­ change Commission that the summary change is suspended, for the period from suspension of trading in the common [File No. 500-1] 2 p.m. (e.s.t.) on November 21, 1973 stock of Patterson Corporation being through November 30, 1973. HOME-STAKE PRODUCTION CO. traded otherwise than on a national se­ curities exchange is required in the pub­ By the Commission. Suspension of Trading lic interest and for the protection of [ s e a l ] G e o r g e A . F i t z s i m m o n s , N o v e m b e r 23, 1973. investors; .1Secretary. Therefore, pursuant to section 15(c) It appearing to the Securities and Ex­ [PR Doc.73-25461 Piled 11-30-73:8:45 am] change Commission that the summary (5) of the Securities Exchange Act of suspension of trading in the common 1934, trading in such securities other­ stock of Home-Stake Production Com­ wise than on a national securities ex­ [File No. 500-1] change is suspended, for the period from pany being traded otherwise than on a STRATTON GROUP, LTD. national securities exchange is required 2 p.m. (e.s.t.) on November 21, 1973, in the public interest and for the protec­ through November 30, 1973. Suspension of Trading tion of investors; By the Commission. N ovember 23, 1973. Therefore, pursuant to section 15(c) The common stock of Stratton Group, (5) of the Securities Exchange Act of [ s e a l ! G e o r g e A . F i t z s i m m o n s , Secretary. Ltd., being traded on the American Stock 1934, trading in such securities otherwise Exchange pursuant to provisions of the than on a national securities exchange [PR Doc.73-25459 Filed 11-30-73:8:45 am ] Securities Exchange Act of 1934 and all is suspended, for the period from No­ other securities of Stratton Group, Ltd., vember 26, 1973 through December 5, [File No. 500-1] being traded otherwise than on a na­ 1973. tional securities exchange; and By the Commission. SANITAS SERVICE CORP. It appearing to the Securities and Ex­ Suspension of Trading change Commission that the [summary [ s e a l ] S h i r l e y E . H o l l i s , suspension of trading in such securities Senior Recording Secretary. N o v e m b e r 21, 1973. on such exchange and otherwise than on [PR Doc.73-25456 Piled 11-30-73;8:45 am ]. The common stock of Sanitas Service a national securities exchange is re­ Corporation being traded on the Ameri­ quired in the public interest and for the can Stock Exchange pursuant to provi­ protection of investors; [Pile No. 500-1] sions of the Securities Exchange Act of Therefore, pursuant to section 19(a) KORACORP INDUSTRIES, INC. 1934 and all other securities of Sanitas (4) and 15 (c) (5) of the Securities Ex­ Service Corporation being traded other­ Suspension of Trading change Act of 1934, trading in such wise than on a national securities ex­ securities on the above mentioned ex­ N o v e m b e r 23, 1973. change; and change and otherwise than on a national The common stock of Koracorp Indus­ It appearing to the Securities and Ex­ securities exchange is suspended, for the tries, Incorporated, being traded on the change Commission that the summary period from November 26, 1973, through New York Stock Exchange and the Pa­ suspension of trading in such securities December 5, 1973. ^ on such exchange and otherwise than cific Coast Stock Exchange pursuant to By the Commission. provisions of the Securities Exchange on a national securities exchange is re­ Act of 1934 and all other securities of. quired in the public interest and for the [ seal3 S h ir l e y E. H o llis, Koracorp Industries, Incorporated, be­ protection of investors; Senior Recording Secretary. ing traded otherwise than on a national Therefore, pursuant to sections 19(a) [FR Doc.73-25454 Piled 11-30-73:8:45 am] securities exchange; and (4) and 15(c)(5) of the Securities Ex­ It appearing to the Securities and Ex­ change Act of 1934, trading in such secu­ change Commission that the-summary rities on the above mentioned exchange [File No. 500-1] suspension of trading in such securities and otherwise than on a national secu­ WESTGATE CAUFORNIA CORP. on such exchanges and otherwise than rities exchange is suspended for the on a national securities exchange is re­ period from November 23, 1973 through Suspension of Trading quired in the public interest and for the December 2,1973. N o v e m b e r 21, 1973. protection of investors; By the Commission. It appearing to the Securities and Ex­ Therefore, pursuant to sections 19(a) change Commission^ that the summary (4) and 15(c) (5) of the Securities Ex­ [ s e a l ] G e o r g e A . F i t z s i m m o n s , Secretary. suspension of trading in the common change Act of 1934, trading in such secu­ stock (class A and B ), the cumulative rities on the above mentioned exchanges [PR Doc.73-25458 Filed 11-30-73:8:45 am ] preferred stock(5 percent and 6 percent),

FEDERAL REGISTER, V O L 38, NO. 231— M O N D A Y, DECEMBER 3, 1973 NOTICES 33349 the 6 percent subordinated debentures Act o f 1970 (84 Stat. 1596), and 29 CFR In addition, employers and employees due 1979» and the GV2 percent convertible 1905.11 for a variance, and interim order who believe they would be affected by a subordinated debentures due 1987 being pending a decision on the application for grant or denial of the variance may re­ traded otherwise than on a national a variance, from the standards pre­ quest a hearing on the application no securities exchange is required in the scribed in 29 CFR 1918.74 concerning later than January 2, 1974, in conform­ public interest and for the protection of cranes and derricks other than vessels ity with the requirements of 29 CFR 1905.15. Submission of written comments investors; gear. Therefore, pursuant to section 15(c) The address of the place of employ­ and requests for a hearing should be in (5) of the Securities Exchange Act of ment that will be affected by the appli­ quadruplicate, and must be addressed to 1934, trading in such securities otherwise cation is as follows: the Office of Standards at the above address. than on a national securities exchange is Fort Huron Terminal Company, 2336 Mili­ II. Interim order. It appears from the suspended, for the period from 2 p.m. tary, Port Huron, Michigan 48060. (e.s.t.) on November 21, 1973, through application for a variance and interim The applicant certifies that employees order, that an interim order is necessary November 30, 1973. who would be affected by the variance to prevent undue hardship to the em­ By the Commission. have been notified of the application by ployer and employees pending a decision giving a copy of it to their authorized on the variance. Therefore, it is ordered, ' [ s e a l ] G e o r g e A . F i t z s i m m o n s , Secretary. employee representative, and by posting pursuant to authority in section 6(d) of a copy at all places where notices to em­ the Williams-Steiger Occupational Safe­ [PR Doc.73-25460 Filed 11-30-73;8:45 ami ployees are normally posted. Employees ty and Health Act of 1970, and 29 CFR have also been informed of their right 1905.11(c) that Port Huron Terminal VETERANS ADMINISTRATION to petition the Assistant Secretary for a Company be, and it is hereby, authorized hearing. to continue its operations without the ADVISORY COMMITTEE ON STRUCTURAL Regarding the merits of the applica­ use of load-indicating devices, provided SAFETY OF VETERANS ADMINISTRA­ tion, the applicant contends that it is the following conditions are strictly ob­ TION FACILITIES providing a place of employment as safe served: Notice of Meeting as that required by 29 CFR 1918.74(a) (9) 1. Automobiles shall be of known which requires load-indicating devices or The Veterans Administration gives no­ weight, shall be handled one at a time, alternative devices in cranes used to load and the weight of the lift, including tice pursuant to PL 92-463 that the initial or discharge cargo into or out of a vessel. meeting of the Advisory Committee on handling gear, shall not exceed 5,300 lbs. The applicant states that it operates 2. Wood pulp bales shall be of known Structural Safety of Veterans Admin­ two Lorain gantry cranes which have a istration Facilities will be held in Room weight and the number of bales handled rated capacity of 5,300 lbs. at 50 feet, the shall not exceed a total of 5,300 lbs., in­ 442 at the Veterans Administration Cen­ maximum radius at which the cranes can tral Office, 811 Vermont Avenue NW., cluding any handling gear utilized. work vessels. Due to its geographical lo­ 3. Beans shall be handled in bags or Washington, D.C., on December 17, 1973, cation the port does not handle general at 10 a.m. This is an introductory meet­ sacks of known weight and the number cargo. The cargoes handled by the cranes of bags handled shall not exceed a total ing for the purpose of acquainting non­ consist of newsprint at 2,100 lbs per roll; government committee members with of 5,300 lbs., including any handling gear wood pulp at 440 lbs per bale, 3,520 lbs utilized. the committee’s objectives and scope of per draft; bagged beans at 100 lbs per activity. The committee members will 4. Newsprint shall be handled in quan­ bag, 3,200 lbs per pallet; and sometimes tities of not more than two rolls each of subsequently review current Veterans automobiles whose weights are known. Administration construction standards 2,100 lbs., per draft. The heaviest single load would be an oc­ 5. Any other cargo which may from and criteria and develop a program for casional loading of a lift truck which accomplishing the committee’s objec­ time to time Jpe handled shall be of weighs 7,620 lbs. known weight per unit where uniform, tives. In summary, the applicant states that and otherwise shall have the weights in­ The meeting will be open to the pub­ cab cards and angle indicating devices lic up to the seating capacity of the room. dividually marked on each unit, the are located in the cabs of the cranes, and maximum lift handled not to exceed Because of the limited seating capacity the operators are aware of the weight of it will be necessary for those wishing to 5,300 lbs. per draft, including handling each load in relation to the capacity of gear. attend to contact Mr. James Lefter, the cranes. If any cargoes not normally Director, Civil Engineering Service, Office 6. The 7,620 lb. lift truck is not to be handled by the port are offered with lifts handled by Lorain cranes, serial num­ of Construction, VA Central Office in excess of 5,000 lbs, the applicant states (phone 202-389-2868), prior to Decem­ ber 30632 and 30636, but must be han­ that the ship’s gear would be used. dled by ship’s gear, for which purpose ber 14, 1973. A copy of the application will be made said gear shall be rated to handle in ex­ By Direction of the Administrator. available for inspection and copying cess of 7,620 lbs. under the rigging ar­ upon request at the Office of Standards, Dated; November 23,1973. rangement utilized. I f conventional U.S. Department of Labor, Railway Labor union purchase gear is fitted, the use of [ s e a l ] R u f u s H. W i l s o n , Building, 400 First Street NW., Room 508, a single swinging boom of not less than Associate Deputy Administrator. Washington, D.C. 20210, and at the fol­ four ton’s capacity is recommended. [FR Doc.73-25539 Filed ll-30-73;8:45 am ] lowing Regional and Area Offices: Port Huron Terminal Company shall D.S. Department of Labor, give notice of this interim order to em­ Occupational Safety and Health Adminis­ ployees affected thereby, by the same DEPARTMENT OF LABOR tration, 300 South Wacker Drive, Room means required to be used to inform Occupational Safety and Health 1201, C h ic ag o , I llin o is 60606. them of the application for a variance. Administration U.S. Department of Labor, Effective date. This interim order shall [V —73—37] Occupational Safety and Health Adminis­ be effective as of December 3, 1973, and tration, Michigan Theatre Bldg., Room 626, shall remain in effect until a decision is PORT HURON TERMINAL CO. 220 Bagley Avenue, Detroit, Michigan rendered on the application for a vari­ Application for Variance and Interim Order; 48226. Grant of Interim Order All interested persons, including em­ ance. Signed at Washington, D.C., this 27th I. Notice of application. Notice is ployers and employees, who believe they hereby given that Port Huron Terminal would be affected by the grant or denial day of Nov. 1973. Company," P.O. Box 273, Port Huron, of the application for a variance are in­ J o h n S t e n d e r , Michigan 48060, has made application vited to submit written data, views, and Assistant Secretary of Labor. pursuant to section 6(d) of the Williams- arguments relating to the pertinent ap­ [FR Doc.73-25543 Filed ll-30-73;8:45 am ] Steiger Occupational Safety and Health plication no later than January 2, 1974.

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 33350 NOTICES

Office of the Secretaiy out of his duties under the Manpower M C 118831 S u b s 40, 44, 97, a n d 98, Central ADVISORY COMMITTEE ON WOMEN TO Development and Training Act. Mem­ Transport, Inc., now being assigned hearine THE SECRETARY OF LABOR bers of the Committee are chosen from February 27, 1974 (3 days), at Charlotte representatives of labor, management, N.C., in a hearing room to be later desie' Notice of Meeting agriculture, education, training, and the n a te d . ■*T , ' / 5 MC-F-11811, Watkins Carolina Express It is hereby announced that a meet­ public at large. The chairman is Dr. Eli Jnc-— Control and Merger— Lloyd Motor ing will be held by the Advisory Commit­ Ginzberg of Columbia University. Express, Ltd., and MC 30280 Sub 64 tee on Women to the Secretary of Labor, At its meeting on December 7 the Na­ Watkins Carolina Express, Inc., now being pursuant to the Secretary’s establish­ tional Manpower Advisory Committee assigned hearing March 4,1974 (1 w eek ), at ment of the Committee on September 12, will consider questions related to man­ Charlotte, N.C., in a hearing room to be 1973, under Sec. 9(c) of the Federal Ad­ agement information and evaluation sys­ later designated. visory Committee Act (Pub. L. 92-463). tems under manpower revenue sharing; [ s e a l ] R o b e r t L. O s w a l d , The meeting will convene at 9:30 a.m. matters concerning the United States Secretary. on December 18, 1973, in Conference Employment Service and the Unemploy­ Room B at the rear of the Departmental ment Insurance Service; and issues to be [FR Doc.73-25557 Filed ll-30-73;8:45 am] Auditorium, between 12th and 14th emphasized in the President’s Message Streets on Constitution Avenue NW., in the 1974 Manpower Report of the FOURTH SECTION APPLICATIONS FOR Washington, D.C. It will be reconvened President. The meeting will be held in RELIEF at 9:30 a.m. on December 19 in Confer­ Conference Room 107 in the Depart­ N o v e m b e r 28,1973. ence Room C. ment of Labor starting at 9:30 a.m., and Subjects to be discussed during the is expected to adjourn soon after 4 p.m. An application, as summarized below, meeting will be scheduled in the follow­ The meeting will be open to the public. has been filed requesting relief from the ing order: Review of agenda and state­ requirements of section 4 of the Inter­ Signed at Washington, D.C., this 27th state Commerce Act to permit common ment of committee purpose; Overview of day of November 1973. DOL programs (Part I) ; Issues of con­ carriers named or described in the appli­ cern to women workers; Overview of R o b e r t R . B e h l o w , cation to maintain higher rates and DOL programs (Part II ) ; Committee Executive Secretary. charges at intermediate points than those sought to be established at more distant priorities, organization, and procedures ; [FR Doc.73-25542 Filed 11-30-73; 8:45 am ] and Developing work program and points. priorities. Protests to the granting of an appli­ Members of the public are invited to INTERSTATE COMMERCE cation must be prepared in accordance attend the discussions. Any written data, COMMISSION with Rule 40 of the general rules of prac­ tice (49 CFR 1100.40) and filed on or be­ views, or arguments pertaining to the [Notice 398] agenda must be received on or before fore December 18,1973. December 11, 1973, by the Committee’s ASSIGNMENT OF HEARINGS FSA No. 42778—Chemicals from Points in Texas. Filed by Southwestern Freight executive secretary. Twenty-five dupli­ N o v e m b e r 28, 1973. cate copies are needed for the members Bureau, Agent (No. B-450), for in­ Cases assigned for hearing, postpone­ terested rail carriers. Rates on carbon and for inclusion in the minutes of the ment, cancellation or oral argument ap­ meeting. tetrachloride and methylene chloride, in pear below and will be published only tank-car loads, as described in the ap­ Persons wishing to address the Com­ once. This list contains prospective as­ mittee members during the meeting plication, from specified points in Texas, signments only and does not include to Chicago, Illinois, and points taking should submit to the executive secre­ cases previously assigned hearing dates. tary no later than December 11, 1973, a same rates, East St. Louis, Illinois, and request to be heard, stating the nature The hearings will be on the issues as St. Louis, Missouri. of their intended presentation and the presently reflected in the Official Docket Grounds for relief—Market competi­ tion. amount of time needed. The chairman of the Commission. An attempt will be Tariff—Supplement 32 to South­ made to publish notices of cancellation will announce at the beginning of the western Freight Bureau, Agent, tariff meeting the extent to which time will of hearings as promptly as possible, but 354-C, I.C.C. No. 5084. Rates are pub­ permit the granting of such requests. interested parties should take appropri­ lished to become effective on Decem­ Communications to the executive sec­ ate steps to insure that they are notified ber 26,1973.

retary should be addressed as follows: of cancellation or postponements of A g g r e g a t e - o f -I ntermediates hearings in which they are interested. No Elaine Ambrose, Executive Secretary, Advi­ FSA No. 42779—Chemicals to Points in sory Committee On Women to the Secre­ amendments will be entertained after the Texas. Filed by Southwestern Freight tary of Labor, Department of Labor Build­ date of this publication. Bureau, Agent (No. B-451), for interested ing, Boom 1329, Washington, D.C. 20210. MC 730 Sub 349, Pacific Intermountain Ex­ rail carriers. Rates on carbon tetrachlo­ Signed at Washington, D.C., this 27th press Co., now assigned December 5, 1973, ride and methylene chloride, in tank-car day of November 1973. at San Francisco, Calif., Is cancelled and loads, as described in the application, the application Is dismissed. from specified points in Texas, to Chi­ C a r m e n R. M a y m i , MC 116073, Sub 270, Barrett Mobile Home cago, Illinois, and points taking same Director, Women’s Bureau, and Transport, Inc., now assigned December 3, rates, East St. Louis, Illinois, and St. Executive Director, Advisory 1973, at Dallas, Texas, is cancelled and the application Is dismissed. Louis, Missouri. Committee on Women to the Grounds for relief—Maintenance of Secretary of Labor. MC—67200 Sub-Nos. 39 and 40, The Furniture Transport Company, Inc., now assigned depressed rates published to meet mar­ [PR Doc.73-25541 Filed 11-30-73;8:45 am ] December 3, 1973, at Boston, Mass., is can­ ket competition, without use of such rates celled and the application Is dismissed. as factors in constructing combination NATIONAL MANPOWER ADVISORY M C 105881 S u b 47, M . R . & R . T r u c k in g Co., rates. - now assigned January 14, 1974, at Atlanta, COMMITTEE Tariff—Supplement 32 to South­ Ga., is postponed indefinitely. western Freight Bureau, Agent, tariff NOTICE OF MEETING MC 112422 Sub 5, Sam Vam Galder, Inc., now assigned December 4,1973, at Madison, 354-C, I.C.C. No. 5084. Rates are pub­ The National Manpower Advisory Wis., is postponed indefinitely. lished to become effective on Decem­ ber 26,1973. Committee will meet at the Department No. 35870, Continental Southeastern Lines, Inc., The Moore Tours, Inc., Travel Tours, of Labor on December 7,1973. Appointed Inc., and Wilcox Travel Agency, Inc.— By the Commission. Investigation of Operations and Practices, by the Secretary of Labor in 1962, the [ s e a l ] R o b e r t L. O s w a l d , now being assigned hearing February 25, Committee makes recommendations to 1974 (2 days), at Charlotte, N.C., in a hear­ Secretary. the Secretary relative to the carrying ing room to be later designated. [FR Doc.73-25560 Filed ll-30-73;8:45 am]

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 NOTICES 33351

[Notice 400] August 10, 1967, and January 19, 1972, calendar days after the date of notice respectively, to A. B. & A. Truck Lines, of the filing of the application is pub­ m o t o r c a r r i e r b o a r d t r a n s f e r Inc., Smyrna, Ga., authorizing the trans­ lished in the F e d e r a l R e g i s t e r . One copy PROCEEDINGS portation of poles and posts, and rough of such protests must be served on the Synopses of orders entered by the lumber, from, to, or between points in applicant, or its authorized representa­ Motor Carrier Board of the Commission Alabama, Florida, Georgia, Kentucky, tive, if any, and the protests must cer­ pursuant to sections 212(b), 206(a), 211, North Carolina, South Carolina, Ten­ tify that such service has been made. The 312(b), and 410(g) of the Interstate nessee, Virginia, and West Virginia. J. protests must be specific as to the service Commerce Act, and rules and regula­ Raymond Clark, 1250 Connecticut Ave. which such protestant can and will offer, tions prescribed thereunder (49 CFR Part NW., Washington, D.C. 20036, attorney and must consist of a signed original and 1132), appear below: for applicants. six (6) copies. Each application (except as otherwise A copy of the application is on file, and No. MC-FC-74815. By order entered can be examined at the Office of the specifically noted) filed after March 27, November 20, 1973, the Motor Carrier 1972, contains a statement by applicants Secretary, Interstate Commerce Com­ Board approved the transfer to Jack E. mission, Washington, D.C., and also in that there will be no significant effect on Heckert, York, Pa., of the operating the quality of the human environment field office to which protests are to be rights set forth in Permits Nos. MC- transmitted. resulting from approval of the applica­ 105708 (Sub-No. 2), and MC-105708 tion. As provided in the Commission’s (Sub-No. 3), issued by the Commission M o t o r C a r r i e r s o f P r o p e r t y special rules of practice any interested October 16, 1946, and February 23, 1951, No. MC 2229 (Sub-No. 181 T A ), filed person may file a petition seeking recon­ respectively, to Eugene J. Breighner, sideration of the following numbered November 15, 1973. Applicant: RED York, Pa., authorizing the transportation BALL MOTOR FREIGHT, INC.r 3177 proceedings on or before December 24, of ground agricultural limestone, over ir­ 1973, Pursuant to section 17(8) of the Irving Boulevard, P.O. Box 47407 (Box regular routes, from Thomasville, Pa., to zip 75247), Dallas, Tex. 75207. Appli­ Interstate Commerce Act, the filing of points and places in Frederick, Carroll, such a petition will postpone the effective cant’s representative: Douglas Anderson Baltimore, and Hartford Counties, (same address as applicant). Authority date of the order in that proceeding Md.; and ground agricultural limestone, pending its disposition. The matters re­ sought to operate as a common carrier, in bulk, over irregular routes, from by motor vehicle, over regular routes, lied upon by petitioners must be speci­ Thomasville, Pa., to points in Delaware fied in their petitions with particularity. transporting: General commodities (ex­ and Maryland, except those in Frederick, cept those of unusual value, Classes A No. MC-FC-74593 (B ). By order of Carroll, Baltimore, and Harford Coun­ and B explosives, household goods as de­ November 20, 1973, the Motor Carrier ties, Md. Paul S. Shaffer, 25 North fined by the Commission, commodities in Board approved the transfer to Cargo George St., York, Pa. 17401, attorney for bulk, and those requiring special equip­ and Transportation Services, Inc., applicants. ment) , ALTERNATE ROUTES FOR Pueblo, Colo., of Certificate No. MC No. MC-FC-74862. By order of Nov­ OPERATING CONVENIENCE ONLY: 128164 (Sub No. 1) issued to Alton M. (1) Between Memphis, Tenn., and New Johnson, d.b.a. Colorado-Kansas Truck ember 26, 1973, the Motor Carrier Board approved the transfer to Pinkett’s Shore Orleans, La., in connection with carrier’s Line, Pueblo, Colo., authorizing the Lines, Inc., Denton, Md., of Certificate authorized regular route operations, transportation o f: General commodities, No. MC-100853 and subs thereunder, serving no intermediate points: From with exceptions, between specified points Memphis over U.S. Highway 51 and/or in Colorado and Kansas. John H. Lewis, issued to W. Howard Pinkett, Denton, Md., authorizing the transportation of: Interstate Highway 55 to the junction of Attorney, The 1650 Grant Bldg., Denver, Passengers and their baggage, in regular Interstate Highway 10 at or near Frenier, Colo. 80203, Robert S. Stauffer, Attorney, route, and charter operations, serving La., thence over Interstate Highway 10 to 3539 Boston Road, Cheyenne, Wyo. 82001. points and areas in Delaware, Maryland, New Orleans and return over the same No. MC-FC-74753. By order of No­ Washington, D.C., Pennsylvania, New route. RESTRICTION: Service over the vember 20,1973, the Motor Carrier Board Jersey, New York, Virginia, North Caro­ route specified immediately above shall approved the transfer to ReyCo Motor line, South Carolina, Georgia, and be restricted against the transportation Express, Inc., Fort Smith, Ark., of: (1) Florida. Charles Ephraim, Attorney, 1250 of traffic moving between Memphis, Certificates of Registration Nos. MC— Connecticut Ave. NW., Washington, D.C. Tenn., on the one hand, and, on the other, 97270 (Sub-No. 2) and MC-97270 (Sub- 20036. Mobile, Ala., and Gulfport, Miss., and No. 3) issued on July, 2, 1964, and Oc­ their respective commercial zones. (2) [ s e a l ] R o b e r t L. O s w a l d , Between Fort Smith, Ark., and Shreve­ tober 17, 1967, respectively, to Alvin G. Secretary. Hasen, doing business as Hasen Truck port, La., serving the intermediate point Line, Booneville, Ark., corresponding in [FR Doc.73-25561 Filed 11-30-73:8:45 am ] of Texarkana, Tex., for the purpose of scope to the intrastate authority granted joinder only: From Fort Smith, Ark., over in Certificate No. B-212 by the Arkan­ U.S. Highway 71 to Shreveport, La., and sas Commerce Commission; and (2) [Notice 162] return over the same route; (3) between Certificate No. MC-97270 (Sub-No. 1) MOTOR CARRIER TEMPORARY Port Smith, Ark., and Texarkana, Tex., issued on September 4, 1964, to Alvin G. AUTHORITY APPLICATIONS serving no intermediate points: From Hasen, doing business as Hasen Truck Fort Smith, Ark., over U.S. Highway 71, N o v e m b e r 27, 1973. Line, Bonneville, Ark., authorizing the to Texarkana, Tex., and return over the transportation of general commodities The following are notices of filing of same route; (4) between Fort Smith, between Fort Smith, Ark., and Boone­ application, except as otherwise specifi­ Ark., and Dallas, Tex., serving the inter­ ville, Ark. Mr. Tom Harper, Jr., Attorney cally noted, each applicant states that mediate point of Paris, Tex., for the at Law, P.O. Box 43, Fort Smith, Ark. there will be no significant effect on the purpose of joinder only: From Fort 72901. quality #f the human environment re­ Smith, Ark., over U.S. Highway 271 to its sulting from approval of its application, intersection with Texas Highway 24, No. MC-FC-74788. By order entered for temporary authority under section November 21, 1973, the Motor Carrier thence over Texas Highway 24 to its in­ 210a(a) of the Interstate Commerce Act tersection with U.S. Highway 67 and/or Board approved the transfer to South­ provided for under the new rules of Ex eastern Transfer & Storage Co., Inc., Interstate Highway 30 to Dallas, Tex., Parte No. MC-67 (49 CFR 1131) pub­ and return over the same route; (5) be­ Smyrna, Ga., of the operating rights set lished in the F e d e r a l R e g i s t e r , issue of forth in Certificates Nos. MC-119566 tween Kansas City, Mo., and Dallas, Tex., April 27, 1965, effective July 1, 1965. serving no intermediate points: From (Sub-No. 1), MC-119566 (Sub-No. 3), These rules provide that protests to the Kansas City, Mo., over U.S. Highway 69 MC-119566 (Sub-No. 5), and MC-119566 granting of an application must be filed to its intersection with U.S. Highway 75, (Sub-No. 7), issued by the Commission with the field official named in the F e d ­ thence over U.S. Highway 75 to Dallas, September 1, 1965, December 19, 1966, e r a l R e g i s t e r publication, within 15

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Tex., and return over the same route; No. MC 30844 (Sub-No. 483 TA ) , filed ties (except those of unusual value, (6) between Kansas City, Mo., and Sher­ November 15,1973. Applicant: KROBLIN classes A and B explosives, household man, Tex., serving no intermediate REFRIGERATED XPRESS, INC., 2125 goods as defined by the Commission, points: Prom Kansas City, Mo., over Commercial Street, P.O. Box 5000 (Box commodities in bulk, and those requir­ U.S. Highway 69 to its intersection with zip 50704), Waterloo, Iowa 50702. Appli­ ing special equipment), serving Holiday U.S. Highway 75, thence over U.S. High­ cant’s representative: Paul Rhodes (same Industrial Park, De Soto County, Miss., way 75 to Sherman, Tex., and return over address as applicant). Authority sought as an off-route point in connection with the same route; (7) between Kansas City, to operate as a common carrier, by motor carrier’s presently authorized regular- Mo., and Paris, Tex., serving no inter­ vehicle, over irregular routes, transport­ route operations, for 180 days. mediate points: Prom Kansas City, Mp., ing: Meat, meat products, meat byprod­ over U.S. Highway 69 to its intersection N ote.— Applicant intends to tack the pro­ ucts, and articles distributed Joy meat posed authority to serve Holiday Industrial with Indian Nation Turnpike, thence packinghouses, as described in sections Park, De Soto County, Miss-, with its existing over Indian Nation Turnpike to its in­ A and C of Appendix I to the report in authority in Docket No. MC 42487 (Sub-No. tersection with U.S. Highway 271, thence “Descriptions in Motor Carrier Certifi­ 708) at Memphis, Tenn. and applicant also over U.S. Highway 271 to Paris, Tex., and cates,” 61 M.C.C. 209 and 766 (except proposes to interline traffic with its present return over the same route; (8) between hides and commodities in bulk, in tank connecting carriers at authorized interline Dallas, Tex., and Kansas City, Missouri- vehicles), from the plantsite and facili­ points throughout the United States as pro­ Kansas, serving no intermediate points; vided in tariffs on file with the Interstate ties of Swift Fresh Meats Company at or Commerce Commission. Prom Dallas, Tex., over U.S. Highway 75 near Gering, Nebr., to points in Dela­ to junction U.S. Highway 50 and/or In ­ ware, Connecticut, Maine, Massachu­ SUPPORTING SHIPPER: Holiday terstate Highway 35, thence over U.S. setts, Maryland, New Hampshire, New Inns Inc., 3796 Lamar Avenue, Memphis Highway 50 and/or Interstate Highway Jersey, New York, Pennsylvania, Rhode Tenn. 38118. SEND PROTESTS TO: Dis­ 35 to Kansas City, and return over the Island, Virginia, Vermont, and the Dis­ trict Supervisor Claud W. Reeves, Inter­ same route; and (9) between Monroe, trict of Columbia, for 180 days. SUP­ state Commerce Commission, Bureau of La., and Memphis, Term., serving no in­ PORTING SHIPPER: Swift Fresh Meats Operations, 450 Golden Gate Avenue, termediate points: From Monroe, La., Company, Division of Swift & Company, Box 36004, San Francisco, Calif. 94102. over U.S. Highway 165 to junction U.S. 115 West Jackson Boulevard, Chicago, No. MC 76032 (Sub-No. 302 T A ), filed Highway 82, thence over U.S. Highway 82 111. 60604. SEND PROTESTS TO: Her­ to junction U.S. Highway 61, thence over November 14, 1973. Applicant: NAVAJO bert W. Allen, Transportation Specialist, FREIGHT LINES, INC., 1205 South U.S. Highway 61 to Memphis and return Interstate Commerce Commission, Bu­ over the same route, for 180 days. Platte River Drive, Denver, Colo. 80223. reau of Operations, 875 Federal Build­ Applicant’s representative: Eldon E. N ote.— Applicant does intend to tack its ing, Des Moines, Iowa 50309. Brezee (same address as applicant). Au­ authority with M C 2229 and Subs. No. MC 33641 (Sub-No. 108 T A ), filed thority sought to operate as a common SUPPORTING SHIPPER: Broadway November 14, 1973. Applicant: IML carrier, by motor vehicle, over irregular Warehouses, 3310 Quebec, Dallas, Tex. FREIGHT, INC., 2175 South 3270 West routes, transporting: Iron and steel arti­ 75247. SEND PROTESTS TO: Transpor­ St., P.O. Box 2277, Salt Lake City, Utah cles as described in Appendix V of the tation Specialist Gerald T. Holland, In­ 84110. Applicant’s representative: W il­ Commission’s “ Description in Motor terstate Commerce Commission, Bureau liam S. Richards, 900 Walker Bank Carrier Certificates,” from Pueblo and of Operations, 1100 Commerce Street, Building, P.O. Box 2465, Salt Lake City, Minnequa, Colo., to points in Alabama, Room 13C12, Dallas, Tex. 75202, Utah 84110. Authority sought to operate Arizona, Arkansas, California, Georgia, as a common carrier, by motor vehicle, Idaho, Illinois, Indiana, Kansas, Iowa, No. MC 30319 (Sub-No. 145 T A ), filed Kentucky, Louisiana, Michigan, Missis­ November 15, 1973. Applicant: SOUTH­ over irregular routes, transporting: Gen­ eral commodities (except those of un­ sippi, Missouri, Nevada, Nebraska, New ERN PACIFIC TRANSPORT COMPANY Mexico, New York, North Carolina, Ok­ OP TEXAS AND LOUISIANA, 7600 usual value, Classes A and B explosives, livestock, household goods as defined by lahoma, Ohio, Pennsylvania, South South Central Expressway, Dallas, Tex. Carolina, Tennessee, Texas, Utah, Vir­ 75216. Applicant’s representative: John the Commission, commodities in bulk and those requiring special equipment) serv­ ginia, West Virginia, Wisconsin, and P. Heard, 3000 One Shell Plaza, Houston, Wyoming, for 180 days. SUPPORTING Tex. 77002. Authority sought to Operate ing the mine and mine site of the Vic­ toria Mine of the Anaconda Company SHIPPER: C.F. & I. Steel Corporation, as a common carrier, by motor vehicle, P.O. Box 316, Pueblo, Colo. 81002. SEND over regular routes, transporting: Gen­ located near White Horse Pass in Nevada as an off-route point in connec­ PROTESTS T O : District Supervisor eral commodities (except those of un­ Roger L. Buchanan, Interstate Com­ usual value, Class A and B explosives, tion with carrier’s regular-route opera­ tion to and from Ely, Nev., for 180 days. merce Commission, Bureau of Opera­ household goods as defined by the Com­ tions, 2022 Federal Building, Denver, mission, commodities in bulk, and those N ote.— Applicant intends to tack the re­ Colo. 80202. requiring special equipment), serving quested authority to that in their MC 33641 New Orleans, La., and its Commercial and Subs, and requests that interline be No. MC 96784 (Sub-No. 7 TA), filed allowed at all authorized service points. Zone as defined by the Commission in November 14, 1973. Applicant: SVENS- connection with applicant’s presently SUPPORTING SHIPPER: F. C. Tor- SON FREIGHT LINES, 800 Pacific Ave­ authorized operations in Texas and kelson Company, 10 W. Broadway, Salt nue, P.O. Box 4849, Yuma, Ariz. 85364. Louisiana without restriction, for 180 Lake City, Utah 84101 (C. Ray Turner, Applicant’s representative: H a r o ld G. days. Purchasing Agent). SEND PROTESTS Hernly, Jr.; 118 North St. Asaph Street, TO: Lyle D. Heifer, District Supervisor, Alexandria, Va. 22314. Authority s o u g h t N ote.— Applicant does intend to tack with to operate as a common carrier, by motor MC 30319 and at all. interchange gateways. Interstate Commerce Commission, Bu­ reau of Operations, 125 South State vehicle, over regular routes, transport­ SUPPORTING SHIPPERS: There are Street, 5239 Federal Building, Salt Lake ing: General commodities (except those approximately 452 statements of support City, Utah 84138. of unusual value, Classes A and B explo­ attached to the application, which may sives, household goods as defined by the be examined here at the Interstate Com­ No. MC 42487 (Sub-No. 814 T A ), filed Commission, commodities requiring spe­ merce Commission in Washington, D.C., November 16, 1973. Applicant: CON­ cial equipment and commodities in or copies thereof which may be examined SOLIDATED FREIGHTWAYS CORPO­ bulk), serving points within 25 miles of at the field office named below. SEND RATION OF DELAWARE, 175 Linfield Phoenix, Ariz., as off-route points in Drive, Menlo Park, Calif. 94025. Appli­ PROTESTS TO: Transportation Spe­ connection with the carriers authorized cialist Gerald T. Holland, Interstate cant’s representative: V. R. Oldenburg, P.O. Box 5138, Chicago, 111. 60680. Au­ regular route operations between Phoe­ Commerce Commission, Bureau of Op­ thority sought to operate as a common nix and Yuma, Ariz., as set forth in erations, 1100 Commerce Street, Room carrier, by motor vehicle, over regular Docket No. MC 96784 (Sub-No. 6 TA), 13C12, Dallas, Tex. 75202. routes, transporting: General commodi­ for 180 days. /

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 NOTICES 33353

jj0TE— Applicant intends to tack with MO STATE MOTOR TRANSIT CO., P.O. erations, Rm. 240, Old P.O. Bldg., 215 96784 (Sub-No. 6 T A ). Box 113 E. on Interstate, Business Route NW. Third, Oklahoma City, Okla 73102. SUPPORTING SHIPPERS: There are 44, Joplin, Mo. 64801. Applicant’s repre­ No. MC 112822 (Sub-No. 302 T A ), filed approximately 15 statements of support sentative: Max G. Morgan, 600 Leininger November 15, 1973. Applicant: BRAY attached to the application, which may Building, Oklahoma City, Okla. 73112. LINES INCORPORATED, 1401 N. Little, be examined here at the Interstate Com­ Authority sought to operate as a common P.O. Box 1191, Cushing, Okla. 74023. merce Commission in Washington, D.C., carrier, by motor vehicle, over irregular Applicant’s representative: Robert A. or copies thereof which may be examined routes, transporting: Canned goods, from Stone (same address as above). Author­ at the field office named below. SEND San Jose, Alameda, Oakland, San ity sought to operate’ as a common car­ PROTESTS TO: Andrew V. Baylor, Dis­ Leandro, Sacramento, Hollister, Gilroy, rier, by motor vehicle, over irregular trict Supervisor, Interstate Commerce Sunnyvale, Thornton, Merced, Fullerton, routes, transporting: Butter, from points Commission, Bureau of. Operations, Fresno, Madera, Hayward, Davis, Oak­ in California', to points in Minnesota, Room 3427 Federal Bldg., 230 N. First dale, and points within 5 miles of Modesto Wisconsin, Tennessee, Ohio, and Texas, Ave., Phoenix, Ariz. 85025. and Stockton (including the named for 180 days. SUPPORTING SHIPPER: cities), Calif., to points in Alabama, Ar­ Swift Dairy and Poultry Company, R. W. No. MC 99284 (Sub-No. 7 T A ), filed kansas, Colorado, Illinois, Indiana, Iowa, Retzlaff, Director of Distribution, 11 November 16, 1973. Applicant: SULLI­ Kansas, Kentucky, Louisiana, Minne­ West Jackson Blvd., Chicago, HI. 60604. VAN’S MOTOR DELIVERY, INC., 711 sota, Missouri, Mississippi, Nebraska, SEND PROTESTS TO: C. L. Phillips, South First Street, Milwaukee, Wis. Ohio, Oklahoma, Tennessee, and Texas, District Supervisor, Interstate Com­ 53204. Applicant’s representative: James for 180 days. SUPPORTING SHIPPERS: merce Commission, Bureau of Opera­ R. Madler, 327 So. La Salle Street, Chi­ California Canners & Growers, 3100 Ferry tions, Room 240, Old P.O. Building, 215 cago, 111. 60604. Authority sought to op­ Building, San Francisco, Calif. 94106; NW. Third, Oklahoma City, Okla. 73102. erate as a common carrier, by motor ve­ Stanislaus Food Products Company, Box hicle, over irregular routes, transport­ 3591, Modesto, Calif. 95352; N.C.C. Food No. MC 112989 (Sub-No. 34 T A ), filed ing: General commodities in shipments Corporation, 570 Race Street, San Jose, November 15, 1973. Applicant: WEST weighing less than 50 pounds per ship­ Calif. 95150; Castle & Cooke, Inc., 5th at COAST TRUCK LINES, INC., P.O. Box ment and not more than 108 inches in Virginia, Box 5130, San Jose, Calif. 95150; 668, Coos Bay, Oreg. 97420. Applicant’s circumference and no more than 100 Tri Valley Growers, 100 California Street, representative: Rick Kelley, Route 4, pounds from one consignor to one con­ San Francisco, Calif. 941 lT f Del Monte Box 194R, Eugene, Oreg. 97405, and signee in any one day, between the com­ Corporation, 211 Fremont St., San Fran­ John G. McLaughlin, 620 Blue Cross mercial zones of Chicago, Waukegan, cisco, Calif.; and Hunt-Wesson Foods, Bldg., Portland, Oreg. 97201. Authority North Chicago, Lake Bluff, Lake Forest, Inc., 1645 West Valencia Drive, Fullerton, sought to operate as a common carrier, and Highland Park, HI., on the one hand, Calif. 92634. SEND PROTESTS TO: John by motor vehicle,- over irregular routes, and, on the other, the commercial zones V. Barry, District Supervisor, Interstate transporting: Iron and steel and iron and of Kenosha, Racine, Milwaukee, West Commerce Commission, Bureau of Op­ steel articles; construction materials, Bend, Fond du Lac, Oshkosh, Neenah, erations, 600 Federal Office Building, 911 equipment, and supplies, from points in Menasha, Appleton, DePere, Green Bay, Walnut Street, Kansas City, Mo. 64106. California, to points in Utah, for 180 Two Rivers, Port Washington, Mani­ days. SUPPORTING SHIPPERS: West­ towoc, Sheboygan, Cedarburg, and Graf­ No. MC 109689 (Sub-No. 258 T A ), filed ern Tube & Conduit' Corporation, 370 ton, Wis., for 180 days. SUPPORTING November 13, 1973. Applicant: W. S. Eighth Avenue, Oakland, Calif. 94606; SHIPPERS: There are approximately HATCH CO., Off: 643 South 800 West, Western Tube & Conduit Corporation, 48 statements of support attached to Woods Cross, Utah 84087, and Mail: P.O. 2730 E. Thirty-Seventh Street, Los An­ the application, which may be examined Box 1825, Salt Lake City, Utah 84110. geles, Calif. 90058; Atlas Prestressing here at the Interstate Commerce Com­ Applicant’s representative: Mark K. Corp., 14649 Lanark St., Panorama City, mission in Washington, D.C., or copies Boyle, 345 South State Street, Salt Lake Calif. 91402; A. M. Castle & Co., Pac. thereof which may be examined at the City, Utah 84111. Authority sought to Metals Div., 939 South 6th West, Salt field office named below. SEND PRO­ operate as a common carrier, by motor Lake City, Utah 84104; Johns-Manville TESTS TO: District Supervisor John E. vehicle, over irregular routes, transport­ Products Corporation, Pittsburg, Calif. Ryden, Interstate Commerce Commis­ ing: Salt, in containers, from Solar, Utah, 94565; and Master Fence Fittings, Inc., sion, Bureau of Operations, 135 West to incorporated towns and cities in New P.O. Box 365, La Habra, Calif. 90631. Wells Street, Room 807, Milwaukee, Wis. Mexico, for 180 days. SUPPORTING SEND PROTESTS TO: District Super­ SHIPPER sAmerican Salt Company, 3142 53203. visor A. E. Odoms, Interstate Commerce Broadway, Kansas City, Mo. 64111, (John Commission, Bureau of Operations, 450 No. MC 108375 (Sub-No. 34 T A ), filed Branham, Traffic Manager). SEND PRO­ Multnomah Building, 319 SW. Pine, N ovem ber 15, 1973. Applicant: LEROY TESTS TO: Lyle D. Heifer, District Su­ Portland, Oreg. 97204. L. WADE & SON, INC., 10550 I Street, pervisor, Interstate Commerce Commis­ P.O. Box 27053, Omaha, Nebr. 68127. Ap­ sion, Bureau of Operations, 5239 Federal No. MC 115831 (Sub-No. 11 T A ), filed p lic a n t’s representative: Arlyn L. West- Building, 125 South State Street, Salt November 15, 1973. Applicant: TIDE­ ergren, Suite 530, Univac Building, 7100 Lake City, Utah 84138. WATER TRANSIT COMPANY, INC., W est Center Road, Omaha, Nebr. 68106. P.O. Box 189, Off Corner Herritage & sought«to operate as a common No. MC 111401 (Sub-No. 400 T A ), filed Caswell Sts., Kinston, N.C. 28501. Appli­ A u th o rity November 16, 1973. Applicant: GROEN- carrier, by motor vehicle, over irregular cant’s representative: George G. Harper DYKE TRANSPORT, INC., 2510 Rock rou tes, transporting: Used automobiles, (same address as applicant). Authority Omaha, Nebr., to points in Minne­ Island Blvd., P.O. Box 632, Enid, Okla. sought to operate as a common carrier, from 73701. Applicant’s representative: Victor Kansas, and South Dakota (except sota, R. Comstock (same address as above) . by motor vehicle, over irregular routes, Lawrence, Custer, Meade, Pennington, Authority sought to operate as a common transporting: Fuel oil, in bulk, in tank B u tte, and Fall River Countigs, S. Dak.), vehicles, from Savannah, Ga., to points for 180 days. SUPPORTING SHIPPER: carrier, by motor vehicle, over irregular A uction Recon, Inc., 7425 Dodge Street, routes, transporting: Liquid distillers in Jackson, Watauga, Burke, and Wake O m ah a, Nebr. 68114. SEND PROTESTS solubles, from Atchison, ilans., to Perry- Counties, N.C., for 180 days. SUPPORT­ TO : Carroll Russell, District Supervisor, ton, Tex., and Lucern, Colo., for 180 days. ING -SHIPPER: Colonial Oil Industries, B u re a u of Operations, Interstate Com­ SUPPORTING SHIPPER: Midwest Sol­ Incorporated, P.O. Box 576, Savannah, m erce Commission, Suite 620, Union Pa­ vents Company, Inc., Tom Monk, Vice- Ga. 31402. SEND PROTESTS TO: Archie cific Plaza Building, 110 North 14th President, 1300 Main, Atchison, Kans. W. Andrews, District Supervisor, Inter­ S tree t, Omaha, Nebr. 68102. 66002. SEND PROTESTS TO: C. L. state Commerce Commission, Bureau of No. MC 109397 (Sub-No. 288 T A ), file d Phillips, District Supervisor, Interstate Operations, P.O. Box 26896, Raleigh, N ov em ber 7, 1973. Applicant: TRI­ Commerce Commission, Bureau of Op­ N.C. 27611.-

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 33354 NOTICES

No. MG 121082 (Sub-No. 8> T A ), filed vehicle,, over irregular routes, transport milk powder, oleomargarine, and turkeys November 14, 1973. Applicant: ALLIED ing: Meats, mead products, meat byprod­ when moving with regulated commodi­ DELIVERY SYSTEM, INC., 2201 Fen- ucts, and articles distributed by meat ties,. from Albert Lea, Browerville, Fari­ kell, Detroit, Mich. 48238. Applicant’s packinghouses as described in sections bault, Minneapolis-St. Paul, Mountain representative: Richard SI Ewing, 1229 A, B and C of Appendix I to the report Lake, and Winthrop, Minn., and Eau Nineteenth Street NW., Washington, in “Descriptions in Motor Carrier Cer­ Claire, Reedsburg, and Spencer, Wis., to D.C. 20036. Authority sought to operate tificates.” 61 M.C.C. 209 and 766 (except Danbury, Hartford, New London, South as a common carrier, by motor vehicle, hides and commodities in bulk), from Windsor, and Suffield, Conn.; Boston, over irregular routes, transporting: the plantsite and storage facilities of Bridgewater, Cambridge/ Canton, Drugs, toilet preparations, and other John Morrell & Co., Sioux Falls, S. Dak,, Charlestown, Lynn, Norwood, Salem! commodities sold in retail and discount and St. Paul, Minn., to points in Ala­ and Springfield, Mass.; Bayonne, Eliza­ drug stores, between Detroit, Mich., and bama, Florida, Georgia, North Carolina, beth, Jersey City, Plainfield; Secaucus, points in the Michigan Lower Peninsula, South Carolina, and Tennessee, for 180 and Woodbridge, N.J.; Amsterdam, Bing­ for 150 days. SUPPORTING SHIPPER: days. RESTRICTION: Restricted to hamton, Buffalo, Jamestown, Mount Revlon, Inc., Route 27 & Talmadge Rd., traffic originating at the above-named Kisco, New York, Rochester, Schenec­ Edison, N.J. 08817; Clairol, One Blach- origin points and destined to points in tady, and Waterford, N.Y.; Harrisburg, ley Road, Stamford, Conn. 06902; The the named states. SUPPORTING SHIP­ Philadelphia, and Scranton, Pa.; Crans­ Gillette Company, 30 Burtt Road, And­ PER: John Morrell & Co., 208 South La ton, Cumberland, and Providence, R.I., over, Mass. 01810; and William H. Rorer, Salle Street, Chicago, 111. 60604. SEND for 180 days. SUPPORTING SHIPPER: Inc., Fort Washington, Pa. 19034. SEND PROTESTS TO: Carroll Russell, District Land O’Lakes, Inc., 614 McKinley Place, PROTESTS TO : Melvin F. Kirsch, Dis­ Supervisor, Interstate Commerce Com­ Minneapolis, Minn. 55413. SEND PRO­ trict Supervisor, Interstate Commerce mission, Bureau of Operations, Suite 620, TESTS T O : A. N. Spath, District Super­ Commission, Bureau of Operations, 1110 Union Pacific Plaza Building, 110 North visor, Interstate Commerce Commission, Broderick Tower,, 10 Witherell, Detroit, 14th Street, Omaha, Nebr. 68102. Bureau of Operations, 448 Federal Bldg, Mich. 48226, No. MC 133689 (Sub-No. 36 T A ), filed and U.S. Court House, 110 S. 4th Street, No. MC 124160 (Sub-No. 8 T A ), filed November 16, 1973. Applicant: OVER­ Minneapolis, Minn. 55401. November 14, 1973. Applicant: SAVAGE LAND EXPRESS, INC., 651 First Street No. MC 136326 (Sub-No. 1 TA), filed BROTHERS* INCORPORATED, 602 SW., P.O. Box 2667, New Brighton, Minn. November 14,1973. Applicant: FLORIDA East Main Street, American Fork, Utah 55112. Applicant’s representative: James ASSEMBLY & DISTRIBUTION, INC.,] 84003.r Applicant's representative: Lon Aronson (same address as above). Au­ 201 North Federal Highway, Deerfield Rodney Kump, 720 Newhouse Building, thority sought to operate as a common Beach, Fla. 33441. Applicant’s repre-j Salt Lake City, Utah 84111. Authority carrier, by motor vehicle, over irregular sentative; James L. Emerick, Sr. (same sought to operate a » a common carrier, routes, transporting: Frozen potatoes address as applicant) . Authority sought j by motor vehicle, over irregular routes, and frozen potato products, from the to operate as a common carrier, by motor transporting: Coal, in bulk, from the plantsite of Western Potato Service; Inc., vehicle, over irregular routes; transport­ Carbon Fuel Mine located near Martin, of Grand Forks, N. Dak., to points in Illi­ ing: General commodities (except those | Utah (in Carbon County, Utah), to the nois, Michigan, Indiana, Ohio, Kentucky, of unusual value, Class A and B explo­ railroad head at Castle Gate, Utah (Car­ and Tennessee, for 180 days. SUPPORT­ sives, household goods as defined by the; bon County, Utah), restricted to traffic ING SHIPPER: Western Potato Service, Commission, commodities in bulk, and having a subsequent out-of-state move­ Inc,,. P;0. Box 518, Highway 2 West, those requiring special equipment).; ment, for 180 days. SUPPORTING Grand Forks, N. Dak. 5820r. SEND PRO­ within Dade, Broward; and Palm Beach i SHIPPER: Braztafc Corporation, P.O. TESTS TO: District Supervisor Ray­ Counties; Fla., for 180 days. SUPPORT­ Box 506, Helper, Utah (Boyd J. Harvey, mond T. Jones, Interstate Commerce ING SHIPPERS: Industrial Shippers; General Manager)). SEND PROTESTS Commission, Bureau of Operations, 448 Association, Inc., 1030 West Division! TO; Lyle D., Heifer,. District Supervisor, Federal Bldg. & U.S. Court House, 110 S. Street, Chicago, HI. 60622; W. D. Allen Interstate Commerce Commission, Bu­ 4th Street, Minneapolis, Minn. 55401. Manufacturing Company, 2200 West 16 reau of Operations, 125 South State Street, Broadview, HI. 60153; Scholl, Inc,, Street, 5239 Federal Building, Salt Lake No, MC 134387 (Sub-No. 20 T A ), filed City, Utah 84138. November 14, 1973. Applicant: BLACK­ 211-213 West Schiller St., Chicago, HI. BURN TRUCK LINES, INC., 4998 Bran- 60610; and S. S. Kresge Company, P.O. No. MC 125925 (Sub-No. 12 T A ), filed yon Avenue, South Gate, Calif. 90280. Ap­ Box 1104, Forest Park, Ga. 30050: SEND November 20, 1973. Applicant: SAM plicant’s representative: David P. Chris­ PROTESTS TO: District Supervisor j TOWLER, 3319 Colins Street, Annan- tianson, 825 City National Bank Building, Joseph B. Teichert, Interstate Commerce j dale, Va. 22003. Applicant’s representa- 606 South Olive Street, Los Angeles, Commission, Bureau of Operations, Palm tive: Frank B. Hand; Jr., Route 1, P.O. Calif. Authority sought to operate as a Coast n Building, Suite 208, Miami, Fla. Box 446, Berryville, Va. 22601. Authority common carrier, by motor vehicle, over 33166. sought to operate as a common carrier, irregular routes, transporting: Empty No. MC 136529 (Sub-No. 2 T A ), filed by motor vehicle, over irregular routes, cans and can ends, from points in Los transporting: Stone dust, from LeGore, November 15, 1973. Applicant: MIS­ Angeles County, Calif., to Casa Grande, SOURI BEEF EXPRESS, INC., 630 Md.» to the plantsite of Leesburg Con­ Ariz., for 180 days. SUPPORTING SHIP­ crete Block, Inc., at or near Leesburg, Amarillo Bldg., Amarillo, Tex. 79101. PER: Continental Can Company, Inc., Applicant’s representative: Donald L. Va., for 180 days. SUPPORTING SHIP­ 155 Bovet Road, San Mateo, Calif. 94402. PER; Leesburg Concrete Block, Inc., P.O. Stem, 539 Univac Building, 7100 West SEND PROTESTS TO: Walter W. Stra- Center Road, Omaha, Nebr. 68106. Au­ Box 1335, Leesburg, Va. 22075. SEND kosch, District Supervisor, Interstate PROTESTS TO: Robert D, Caldwell, thority sought to operate as a contract Commerce Commission, Bureau of Op­ carrier, by motor vehicle, over irregular District Supervisor, Interstate Commerce erations, Room 7708, Federal Building, Commission, Bureau of Operations, 12th routes, transporting: ■ Meats and pack­ 300 North Los Angeles Street, Los An­ inghouse products as described in Ap­ Street & Constitution Avenue NW. geles, Calif. 90012. Washington, D.C. 20423. pendix I to the report in “Descriptions No. MC 134477 (Sub-No. 44 T A ), filed in Motor Carrier Certificates”, 61 M.C.C. No. MC 133119 (Sub-No. 31 T A ), filed November 16, 1973. Applicant: SCHAN- 209 and 766, from the plantsite of Mis­ November 14; 1973. Applicant: HEYL NO TRANSPORTATION, INC., P.O. souri Beef Packers, Inc., at or near Rock- TRUCK LINES, INC., 235 Mill Street, Box 3496, West St. Paul, Minn. 55165. port, Mo., to points In New York, New P.O. Box 206, Akron, Iowa 51001. Appli­ Applicant’s representative: Thomas Hampshire, Massachusetts, Pennsylva­ cants representative: A. J. Swanson, 521 Fischbach (same address as applicant);. nia, Connecticut, Rhode Island, Virginia, South 14th Street, P.O, Box 81840, Authority sought to operate as a common New jersey, and the District of Colum­ bia, for 180 days. SUPPORTING SHIP­ Lincoln, Nebr. 68501. Authority sought carrier, by motor vehicle, over irregular to operate as a common carrier, by motor PER: Missouri Beef Packers, Inc., P.O. routes, transporting: Butter, cheese, eggs, Box 910, Plainview, Tex. 79072. SEND

FEDERAL REGISTER, VOL. 38, NO. 231— MONDAY, DECEMBER 3, 1973 NOTICES 33355

PROTESTS TO: Haskell E. Ballard, Dis­ PORT, LIMITED, 104 1st Street South, consumption, with the share attributable trict Supervisor, Interstate Commerce Beausejour, Manitoba, Canada. Appli­ to those carriers subject to our regula­ Commission, Bureau of Operations, Box cant’s representative: E.. J. Hanson, Box tory jurisdiction (which includes some H-4395 Herring Plaza, Amarillo, Tex. 1177, Grand Forks, N. Dak. 58201. Au­ 4.4 percent of the Nation’s present truck 79101. thority sought to operate as a contract fleet) being far less than most people carrier, by motor vehicle, over irregular realize— only about 3 percent of the total. No. MC 138003 (Sub-No. 5 T A ), filed routes, transporting: Realtor coolant The Interstate Commerce Commission, November 14, 1973. Applicant: ROBERT (hydrogenated terphenyl), in bulk, in AS the independent regulatory agency p. KAZIMOUR, 1200 Norwood Drive SE., tank vehicles, truckload, between the charged by the Congress with overseeing P.O. Box 2011 (Box zip 52406), Cedar ports of entry on the United States- the operations of the interstate surface Rapids, Iowa 52403. Applicant’s repre­ Canada International Boundary line in transportation industry—embracing rail­ sentative: Michael J. Myers,_309 Badge- Minnesota and Anniston, Ala., for the ac­ roads, oil pipelines, motor and domestic row Building, Sioux City, Iowa 51101. count of Atomic Energy of Canada, Lim­ water carriers, freight forwarders, and Authority sought to operate as a con­ ited at Pinawa, Manitoba, Canada, for brokers—stands ready to lend its full tract carrier, by motor vehicle, over ir­ 180 days. SUPPORTING SHIPPER: support and assistance to the develop­ regular routes, transporting: (1) Appli­ Atomic Energy of Canada Limited, ment and implementation of policies and ances, from Newton, Fort Dodge, and Whiteshell Nuclear Research Establish­ pregrams to alleviate, to the fullest ex­ Webster City, Iowa, to points in Ken­ ment, Pinawa, Manitoba, Canada ROE tent practicable, energy shortages for the tucky, Tennessee, North Carolina, and 1L0. SEND PROTESTS TO: J. H. Ambs, short as well as the long term. South Carolina and (2) component parts District Supervisor, Interstate Commerce I. Those policies and programs that and raw materials used in the manufac­ apply to transportation ought to include, ture of appliances, from points in Ken­ Commission, Bureau of Operations, P.O. Box 2340, Fargo, N. Dak. 58102. we believe, encouragement of the prompt tucky and Tennessee, and Charlotte, movement of critical fuel supplies as well N.C., to Newton and Jefferson, Iowa, for M o t o r C a r r i e r s o f P a s s e n g e r s as other essential commerce to those 180 days. RESTRICTION: Restricted to No. MC 139242 (Sub-No. 1 T A ), filed areas of greatest need, with the minimum transportation under a continuing con­ November 16, 1973. Applicant: D & T expenditure of energy and with the least tract or contracts with Franklin Manu­ LIMOUSINE SERVICE, INC., 11941 Ab­ possible dislocation of other areas of facturing Co. and The Maytag Company. bey Road, North Royalton, Ohio 44133. our economy. To that end, this Commis­ SUPPORTING SHIPPERS: The Maytag Applicant’s representative: James M. sion has already taken steps—within its Company, Newton, Iowa 50208, v and Burtch, 100 East Broad Street, Columbus, present, admittedly limited, statutory au­ Franklin Manufacturing Co., 600 Stock- Ohio 43215. Authority sought to operate thority—to enable carriers subject to its dale Street, Webster City, Iowa 50595. as a contract carrier, by motor vehicle, regulation to make more efficient use of SEND PROTESTS TO: Herbert W. Al­ over irregular routes, transporting: Pas­ len, Transportation Specialist, Interstate energy. And other actions are also sengers who are employees of the Penn Commerce Commission, Bureau of Oper­ planned under our existing statutory au­ Central Transportation Company in thorization. A summary of what we are ations, 875 Federal Building, Des Moines, special operations, between points in Iowa 50309. Cuyahoga County, Ohio, on the one hand, doing and can do under the prevailing No. MC 139263 (Sub-No. 1 T A ), filed and, on the other, points in Erie Comity, statute would embrace the following: November 18,1973. Applicant: MINUTE- Pa., 180 days. SUPPORTING SHIPPER: Our Superhighway and Deviation Rules (49 MAN EXPRESS, INC., P.O. Box 458, Penn Central Transportation Company, CFR 1042) enable regular-route motor com­ Lexington, Nebr. 68850. Applicant’s rep­ Cleveland Union Terminal, Cleveland, mon carriers of both passengers and property resentative: Patrick E. Quinn, 605 South Ohio 44113. SEND PROTESTS TO: to traverse shorter and more economical 14th Street, P.O. Box 82028, Lincoln, routes (including those in the Interstate Franklin D. Bail, District Supervisor, In ­ Highway System) than those specified in Nebr. 68501. Authority sought to operate terstate Commerce Commission, Bureau their certificates. as a contract carrier, by motor vehicle, of Operations, 181 Federal Office Bldg., Our -rail car service and embargo authori­ over irregular routes, transporting: 1240 East Ninth Street, Cleveland, Ohio ties, though somewhat limited and in need Meat, meat products, and meat byprod­ 44199. of clarification as they might apply in an ucts, and articles distributed by meat energy crisis, provide us with some emergency packinghouses as described in sections By the Commission. power to direct the most efficient use of the available rail car fleet, to establish some pri­ A and C of Appendix I to the report in [ s e a l ] R o b e r t L. O s w a l d , orities, and to require the joint or common “Descriptions in Motor Carrier Certifi­ Secretary. use of terminals and related trackage. Sec­ cates,” 61 M.C.C. 209 and 766 (except [FR Doc.73-25562 Filed ll-30-73;8:45 am ] tion 1 (10), (15), and (16) of the Interstate hides and commodities in bulk, in tank Commerce Act. vehicles), from the plantsite of Corn- W e can and do encourage and approve the land Dressed Beef Co., at Lexington, [E x P a r t e N o . 301] pooling of carriers’ services and operations Nebr., to points in Minnesota, Iowa, Mis­ whenever we find that such pooling will be souri, Wisconsin, Illinois (except Chicago ENERGY CRISIS AND THE NEED FOR in the interest of better service to the public and Rockford), Tennessee, Kentucky, EMERGENCY TRANSPORTATION LEGIS­ or economy in operations, and will not un­ LATION duly restrain competition. Section 5 (1) of Indiana, Michigan, Ohio, Virginia, Penn­ t h e A ct. sylvania, New York, Massachusetts, Con­ Notice and Order W e can and do issue temporary motor car­ rier authorities .to meet immediate and ur­ necticut, New Jersey, Washington, D.C., N o v e m b e r 29,1973. Maryland, North Carolina, South Caro­ gent needs for such service as to a point or lina, Georgia, Florida, and Colorado, for Transportation is both a major mover points or within a territory as to which there 180 days. RESTRICTION: Restricted to and user of energy. It represents the is no'carrier service capable of meeting those a transportation service to be performed very lifeline of our Nation and plays a needs. In instances of area or nationwide key role in the development and exploita­ transportation stoppages, we issue General under a continuing contract or contracts, Temporary Authority Orders which enable with Comland Dressed Beef Co. of Lex­ tion in the public interest of our present and potential fuel supplies. Examples of the processing of such matters in our field ington, Nebr. SUPPORTING SHIPPER: offices o h v ery sh o rt n otice. Comland Dressed Beef Co., East High­ this essential interdependence range We issue new operating authorities, upon way 30, Lexington, Nebr. 68850. SEND from the Alaskan North Slope oil re­ application and proof of operating economies PROTESTS TO: Carroll Russell, Dis­ serves to the low sulfur coalfields in and efficiencies, to enable motor carriers to Wyoming, both of which today lack the traverse more economical alternate routes or trict Supervisor, Interstate Commerce to eliminate so-called “gateway” operations. Commission, Bureau of Operations, Suite necessary transportation access tb help alleviate anticipated energy shortages We are now processing, as expeditiously as 620, Union Pacific Plaza Building, 110 over the longer term. By the same token, possible given the procedural restraints of the North 14th Street, Omaha, Nebr. 68102. National Environment Policy Act of 1969 commercial transportation reportedly (N E PA ), a general rulemaking proceeding (Ex No. MC 139268 TA, filed November 16, accounts for approximately 13 percent Parte No. 55 (Sub-No. 8) looking to the elimi­ 1973. Applicant: NAAYKENS TRANS­ of our country’s annual distillate fuel nation or curtailment of those “gateway”

FEDERAL REGISTER, VOL. 38, NO. 231— MONDAY, DECEMBER 3, 1973 33356 NOTICES

operations that do not allow for the most effi­ 5. the competitive impact, if any, of suchwe (1) determine and state publicly at cient utilization of fuel. On November 23, a u t h o r it y . the outset of each abandonment whether 1973, w e p u b lis h e d a n o tic e o f p ro p o sed r u le - making and order (119 M.C.C. 170) in this Bach such report would be further re­ a major Federal action significantly af­ proceeding and comments on the regulations quired to make recommendations with fecting the quality of the human envir­ there proposed are now due on or before De­ respect to changes in any existing fuel onment is involved within the meaning cember 11,1973. allocation programs which are deemed of NEPA, and if so (2) our staff must W e are active participants in multi-agency necessary to conserve fuel while provid­ prepare a draft impact statement for energy task forces and are cooperating fully circulation t o ' the parties prior to the with other departments and agencies in de­ ing for the'public convenience and neces­ veloping needed energy data and in form ulat­ sity. commencement of any hearing. This in­ ing comprehensive plans to minimize prob­ This Commission has presented testi­ junction has severely delayed critical de­ lems associated with the energy crisis. mony before Congressional committees cision-making affecting the distressed We are continuing to study, both inter­ on the above-mentioned and other bills Northeast railroads. In many instances nally and in cooperation with other depart­ and has proposed certain amendments to those railroads are seeking to abandon ments, restrictions found in motor carrier those measures as set forth in Appendix operations which from an energy stand­ operating authorities and in published tariffs A to this notice. We thus have expressed point may be more efficiently handled by with the view to removing any unwarranted truck. A locomotive which must travel limitations that may be found to be inimical the opinion that the powers to be con­ to the public interest and the national trans­ ferred upon this Commission, and other over a particular segment of line to portation policy. Examples of similar studies regulatory agencies, as those bills now pick up a single carload of freight some­ would include Removal of Truckload Lot Re­ stand, are too narrow inasmuch as that times uses more energy, depending upon strictions, 106 M.C.C. 455, and Restrictions authority would be mainly confined to local operating conditions, than would on Service by Motor Common Carriers, 111 “ variances from existing schedules and trucks capable of transporting the same M .C .C . 151. routings to increase load factors, reduce commodities. Furthermore, existing We have stressed, and continue to do so, the number of scheduled trips, or shorten motor carriers may be presently author­ in the motor carrier licensing process, the ized to transport the involved traffic. Any operational feasibility of a new operating distances traveled, in order to conserve proposal with the view to minimizing or fuel.” There are other techniques that traffic diverted from the railroads may eliminating the costs of empty vehicle move­ may be utilized to alleviate the fuel crisis be utilized to fill partially laden trucks ments. Rogers Cartage Co., a Corporation— such as altering routes or rates. We have or may result in fewer empty backhauls. E xten sio n , 110 M .C .C . 139. W e issu ed, o n N o ­ therefore stated that the legislation set This would not significantly increase v e m b e r 23, 1973, a g e n e ra l p o licy statem en t forth in Appendix A hereto would better pollution or energy use, but would rather again emphasizing this factor. afford us the needed flexibility to imple­ enable the transportation system to op­ We encourage the provision of piggyback ment the kind of programs needed to erate more efficiently and economically. or trailer-on-flatcar service and the mainte­ nance of through routes and joint rates, do­ combat the energy emergency. Similarly, the elimination of rail mestic as well as international, within one Our proposal would, among other trackage which is truly redundant or mode and between all modes, whether rail, things, grant us authority to impose which simply duplicates other rail lines motor, water, or air. upon the various categories of nonregu- capable of heavier utilization will not We have approved the use of rail unit- ■ ated carriage, fuel conserving measures disrupt existing economic centers and train rates which encourage shap ers to similar to any that may be promulgated will not cause a shift from rail to any tender larger volumes of certain freight to £ A' regulated carriers. In the United other mode of transportation. the railroads. This permits a single locomo­ Other Commissioh decisions being de­ tive to haul a more complete load and to States there are approximately 37,000 ex­ conserve fuel to the maximum extent pos­ empt carriers, 96,000 private carriers, layed by environmental procedural re­ sible. and only 19,000 regulated carriers. The quirements include the processing of ap­ Railroad and motor carrier consolidations 1973 figures show the number of trucks plications to construct rail lines to serve and mergers are authorized to eliminate or to now be 20.2 million. As shown in Ap­ the coalfields in Wyoming and of a pe­ reduce redundant operations in the public pendix B, the number of trucks oper­ tition to eliminate motor carrier gate­ interest. Unnecessary duplicative transporta­ ated by regulated carriers constitutes way requirements. In the former in­ tion services are also authorized to be aban­ only 4.4 percent of the total trucks in stance, vast coal deposits abound in doned in appropriate circumstances. This Commission urges shippers to utilize this country. Therefore, it would appear Wyoming. In order to develop these fields public transportation to the greatest extent that, to be effective, many constraints by 1976, rail construction. must begin possible. Just as local governments seek to imposed on transportation must be ap­ this spring. We cannot, however, approve relieve traffic congestion and air and noise plied on an across-the-board basis but this application until an impact state­ pollution, and to discourage undue energy only in the interests of conservation and ment (most likely a multiple agency im­ consumption, by encouraging their citizens utilization of fuel in the present emer­ pact statement) is completed. In the lat­ to utilize mass transit facilities to relieve gency. ter case, we are attempting to take ac­ these same problems, we have an obligation III. The National Environmental Pol­tion which may save 300 million gallons to assure the public that for-nire carriers operate efficiently and economically. icy Act of 1969 (NEPA) as interpreted by of fuel a year. Ironically, NEPA require­ the Council on Environmental Quality ments are delaying any action which 11. The Congress of the United States and the courts imposes stringent and might have beneficial effects on the en­ is presently considering the adoption of time-consuming restraints on an agen­ ergy situation. certain legislation (e.g., S. 2589 and H.R. cy’s decisiorl-making process. Many pro­ We recognize that CEQ may shorten 11450) which would require this Com­ cedural steps must be taken before an the time restraints of their guidelines mission to report to the appropriate Con­ agency may take necessary appropriate in emergency situations. This, however, gressional committees within 15 days action. Environmentalists as well as oth­ does not relieve an agency of its respon­ after the date of enactment on the need ers interested more in economic advan­ sibility to prepare and distribute an im­ for additional regulatory authority in tage have used NEPA to delay Federal pact statement where appropriate. Be­ order to conserve fuel during the energy action. Strained interpretations of NEPA cause of the obvious need to move with emergency while continuing to provide seem to disregard the concept that “ jus­ dispatch during this current emergency, tice delayed is justice denied.” In this pe­ it would seem that actions taken pursu­ for the public convenience and necessity. riod of severe energy shortages, one need ant to any emergency legislation should Our reports to the Congress would be only examine the circumstances sur­ not be subject to the procedural require­ required to identify with specificity: rounding a number of Commission ac­ ments of the National Environmental 1. the type of regulatory authority needed; tivities to note how damaging such de­ Policy Act of 1969. This would not elimi­ 2. the reasons why that authority is lays may be. nate any agency’s responsibility to eval­ n eed ed; This Commission, pursuant to an in­ uate environmental matters, but merely 3. the probable impact on fuel conserva­ junction issued by Judge Frankel in Har­ would remove delay from the decision­ tion of such authority; lem Valley v. Stafford, 5 ERC (DC making process. 4. the probable effect on the public con­ venience and necessity of the suggested au­ SDNY-1973), may not authorize the IV. This Commission would appreciate thority; and abandonment of any rail lines unless the views, comments, and suggestions of

FEDERAL REGISTER, VOL. 38, NO. 231— MONDAY, DECEMBER 3, 1973 NOTICES 33357-33365 any interested persons relating to any suspend or otherwise adjust a carrier’s opera­ 5 of the United States Code. Consistent with tions and the services performed thereunder, the purposes of this Act, the Interstate Com­ possible constructive legislation we may in order to conserve fuel while providing for merce Commission may impose upon the propose to the Congress. For regardless the public convenience and necessity. This various categories of nonregulated carriage of whether Congress enacts S. 2589, we authority includes but it not limited to re­ under the Interstate Commerce Act fuel con­ believe it to be our public responsibility vising the manner and the level of opera­ serving restraints, rules and regulations, to propose to the Congress suitable legis­ tions, altering routes, territories or points comparable to those adopted pursuant to this lation which might alleviate, to the full­ served, Shortening distances traveled, and Act to limit the service of the carriers sub­ est extent practicable consistent with our reviewing and revising the rates, fares or ject to its jurisdiction. charges of such carrier. Actions taken pur­ (2) Any person knowingly and willfully regulatory duties, the current fuel situa­ suant to this paragraph may be taken in ac­ violating any requirement of section 203(b) tion. We ask for public comments in this cordance with section 553 of Title 5 of the of this Act shall, upon conviction thereof be matter because it is the public that will United States Code, and without the pro­ fined not less than $200 nor more than $500 reap the benefits of any constructive cedural requirement of 42 U.S.C. 4321 et seq. for the first offense, and not less than $500 legislation which may be adopted. Such Any person adversely affected by an action nor more than $1,000 for any subsequent of­ comments are requested within 15 days shall be entitled to judicial review of such fense. Each day of such violation will con­ in view of the energy emergency facing action in accordance with Chapter 7 of Title stitute a separate offense. our Nation. Appendix B V. It is ordered, That any person in­ terested in making representations re­ DISTRIBUTION OF TRUCKS BY TYPE OF VEHICLE AND USE— 1972 * lating'to the above-described matters so as to aid this Commission in formulating Private. 2 For-hire Total Trucks and combinations its legislative plans concerning the cur­ Number Percent Number Percent Number Percent rent energy shortage is hereby invited to of total of total of total do so by the submission of written data, views, or arguments on or before Decem­ Single unit trucks: 17,486,200 93.8 331,200 38.6 17,817,400 91.4 ber 19, 1973. While the original only of 633,800 3.4 53,300 6.2 687,100 3.5 such representations will be accepted and A ll single unit trucks------18,120,000 97.2 384,500 44.8 18,504,500 94.9 Combinations: considered, we ask all who can do so to 111,900 0.6 78,100 9.1 190,000 1.0 include 15 additional copies of their pres­ 205,000 1.1 161,500 18.8 366,500 1.9 205,100 1.1 233,900 27.3 439,000 2.2 entations. All combinations------>------522,000 2.8 473,500 55.2 995,500 5.1 And it is further ordered, That notice 18,642,000 100.0 858,000 100.0 19,500,000 100.0 to the general public of the matter herein Total______under consideration will be given by de­ i The distribution being used in this table is based on the 1967 Census of Transportation, Truck Inventory and positing a copy of this Notice in the Office U ^0 n h e ei8,642,000 private trucks about 3,500,000 are farm trucks. of the Secretary of the Commission for So u r c e - Based on vehicle distribution. Table 20,1967 Census of Transportation, U.S. Department of Commerce, public inspection and by filing a copy Bureau of Census, with adjustments to include pick-up and panel trucks. thereof with the Director, Office of the [F R Doc.73-25662 Filed 11-30-73; 9:55 am ] Federal Register. a.m. in Conference Room 8202, 2025 M By the Commission. COST OF LIVING COUNCIL Street NW., Washington, D.C. [ s e a l ] R o b e r t L . O s w a l d , _ FOOD INDUSTRY WAGE AND SALARY The agenda will consist of a discussion Secretary. COMMITTEE of policy questions involving food indus­ Appendix A—Proposed Legislation Notice of Meeting try wage cases pending before the Cost of Living Council. (1) The Interstate Commerce Commis­ Pursuant to the provisions of the Fed­ (b ) The Chairman of the Committee is em­ sion, the Civil Aeronautics Board, and the eral Advisory Committee Act (Public Law 92-463, 86 Stat. 770) notice is hereby powered to conduct the meeting in a Federal Maritime Commission for the dura­ fashion that will, in his judgment, fa­ tion of the energy emergency, in addition to given that the Food Industry Wage and cilitate the orderly conduct of business. their existing powers and notwithstanding Salary Committee, established under the any provisions to the contrary in the Inter­ authority of section 212(f) of the Eco­ Issued in Washington, D.C., on Novem­ nomic Stabilization Act, as amended, state Commerce Act, as amended, Federal section 4(a) (iv) of Executive Order ber 30,1973. Aviation Act, as amended, or Shipping Act, 11695, and Cost of Living Council Order H e n r y H. P e r r i t t , Jr., as amended, respectively, shall have the au­ No. 14, will meet on December 6, 1973. Executive Secretary, thority on their own motion or by motion of Cost of Living Council. any interested person, including the Secre­ The meeting will be open to the public [F R Doc.73-25674 Filed 11-30-73; 11:30 am ] tary of Transportation, to review, modify, on a first-come, first-served basis at 10

FEDERAL REGISTER PAGES AND DATE— DECEMBER

33267-33383...... Dec. 3

FEDERAL REGISTER, V O L *8, NO. 131—-MONDAY, DECEMBER & t t Z »

MONDAY, DECEMBER 3, 1973

WASHINGTON, D.C.

Volume 38 ■ Number 231

PART II

PROTECTION AGENCY

ARIZONA TRANSPOR­ TATION CONTROL PLAN

Phoenix-Tucson Interstate Air Quality Standards 33368 RULES AND REGULATIONS

Title 40— Protection of Environment Upon receipt of the remaining public around the morning peak (7:00 to 8:00 CHAPTER I— ENVIRONMENTAL comment, if any, the Administrator will a.m.). High carbon monoxide concen­ PROTECTION AGENCY issue an evaluation report of the Arizona trations do occur during the morning plan and, if necessary, amend this ap­ SUBCHAPTER C— AIR PROGRAMS traffic peak period; these concentrations, proval and promulgation. however, are generally short-lived be­ PART 52— APPROVAL AND PROMULGA­ cause the atmosphere is rapidly becom­ TION OF IMPLEMENTATION PLANS A ir P o llu tio n i n the P h o e n ix -T ucson R egion ing unstable because of daytime heating. Arizona Transportation Control Plan Thus, it would appear that high concen­ Natural features. The Phoenix-Tucson trations of carbon monoxide in these This rulemaking sets forth a trans­ Region is composed of the five Arizona portation control plan for the Phoenix- area are a function not only of total counties of Maricopa, Gila, Pinal, Pima, emissions, but also of the meteorological Tucson Intrastate Air Quality Control and Santa Cruz. A total of 1,431,954 peo­ Region (the “Region”). A General Pre­ conditions that exist during the periods ple reside in this region, 80.8 percent of of highest emissions. amble was published on November 6, the total state population. The region 1973, in the F ederal R egister (38 FR It should be noted that the dispersive encompasses 29,753 square miles, 26.2 characteristics of unstable midday at­ 30626) and is incorporated herein by percent of the total state area. There are reference. mospheric conditions could be used to two major urban areas within the region: reduce high evening carbon monoxide On March 20, 1973, the Administrator, Metropolitan Phoenix in Maricopa acting in response to a court order, noti­ concentrations if measures were adopted County and metropolitan Tucson in P im a . that caused the .evening peak traffic to fied the Governor of Arizona that a County. These areas contain 87.5 percent transportation control plan for the Re­ occur earlier. The shifted emissions of the region’s population. Both metro­ would then occur during a period of good gion should be submitted by April 15, politan areas are- located at the north­ 1973. On April 11, 1973, the State of dispersion. To help achieve this shift, east edge of the southwestern desert, employers could reschedule the work Arizona submitted a proposed imple­ which comprises about a third of the mentation plan control strategy to the shift so that quitting time occurs at 3 state and is typified by low mountain p.m. Also, work hours staggered toward Administrator. This plan demonstrated ranges and desert valleys. Phoenix and attainment of the oxidant standard by an earlier quitting time by a significant Tucson are located about 120 miles apart number of employers would shift the May 31, 1975. However, although several with the elevation of Phoenix being 1117 of the strategies included to control car­ emissions and, in addition, lessen traffic feet and of Tucson, 2410 feet. congestion, which is a source of increased bon monoxide were approvable in con­ The climate of the two major metro­ cept, they were not set forth in the re­ emissions due to stop and go operation. politan areas is quite similar, although Use of daylight savings time during the quired regulatory detail. Accordingly, on Tucson temperatures are normally June 15, 1973, the Administrator disap­ winter months would effectively shift somewhat cooler because of its elevation. peak evening traffic 1 hour earlier with proved the plan (38 FR 16555, June 22, Tucson also has more rainfall. Both 1973). respect to the time of the nondispersive areas have a large number of days with nighttime conditions. Such a measure Because the Administrator disap­ clear skies and an abundance of sun­ proved the Arizona control strategies for would also result in significant energy shine. Average wind speeds in Tucson savings. carbon monoxide, the Administrator was tend to be slightly higher than in Phoe­ required, under section 11(c) of the nix. Air quality monitoring in the region by Clean Air Act, to propose and subse­ the Maricopa County Health Depart­ In the southwest desert areas where ment has consisted of one station located quently promulgate regulations setting clear skies predominate, rapid heating forth substitute measures. Regulations in Phoenix. At various times the Arizona of the surface occurs during the daytime. Division of Air Pollution Control (DAPC) for the attainment and maintenance of This rapid heating, ih turn, produces an the national standards for carbon has in addition monitored air quality at unstable atmospheric condition with different locations throughout the State monoxide were proposed by the Adminis­ good dispersion. Clear skies at night al­ trator in the F ederal R egister of July using mobile equipment. The data from low rapid cooling and lead to the forma­ the mobile monitoring equipment cover 16, 1973 (38 FR 18942). Public hearings tion of surface-based inversions. were held on the proposed regulations in short periods (24-hour periods to 4- Because of the longer nights and in­ month periods); the station located in Tucson on September 10 and 11, 1973, creased cooling, these inversions are and in Phoenix on September 12 and 13, central Phoenix has recorded data con­ stronger and more persistent in the win­ tinuously since 1967. There has been no 1973. ter than in the summer. National The Governor of Arizona submitted a continuous air quality monitoring in the Weather Service records indicate that metropolitan Tucson area until recently revised implementation plan control radiation inversions can be expected on strategy on September 11, 1973. Notice when two monitoring sites were activated about two-thirds of the winter night.«! in a cooperative program between Ari­ of receipt of the revised Arizona plan was Low wind speeds appear to occur more published in the F ederal R egister on zona DAPC and Pima County Health frequently during the night, and the Department. The State is in the process October 26, 1973 (38 FR 29607). This no­ combination of surface inversions and tice was issued to solicit public comment of procuring five additional carbon mon­ light winds produces the stable atmos­ oxide monitors for Phoenix. These moni­ on the plan prior to the Administrator’s pheric conditions that are conducive to approval/disapproval decision. The clos­ tors were funded by EPA and will be the accumulation of pollutants near the operated by the Maricopa County Health ing date for public comment is Novem­ ground. ber 16, 1973, which is also the deadline Department. Air quality data for 1 year, Maricopa County records indicate that established by the Court of Appeals for or at least for the seasonal period when the highest carbon monoxide concentra­ high concentrations would normally be promulgation of EPA’s Arizona trans­ tions occur during the night in the win­ portation control plan. Consequently, to­ expected to occur, is required for analysis ter months. This coincides with the pe­ and selection of carbon monoxide control day’s promulgation cannot be delayed to riod of highest frequency of stable radi­ review public comment received on or strategies. The only data available of near the closing date for comment. ation inversion conditions. Both the sufficient duration to permit strategy cal­ maximum 1-hour concentration and the The Administrator has reviewed the culations are those from the c e n tra l maximum 8-hour concentration usually Phoenix monitoring station. revised Arizona plan, supplemental in­ occur between 6:00 p.m. and midnight. formation, and public comment received The second highest 1-hour and 8-hour In addition to the stable atmospheric to date and finds that the inspection/ carbon monoxide concentration recorded conditions during these hours, traffic in 1971 in the Phoenix-Tucson AQCR maintenance and retrofit control meas­ counts, using October as an example, in­ ures are, for the most part, approvable were 43.5 mg/m3 and 29.36 mg/m3. Use dicate that there is more traffic in the of a proportional rollback technique in­ as specified herein. Therefore, the Ad­ 5-hour period centered around the eve­ ministrator has approved these meas­ dicates that control measures adequate ning peak hour (4:00 to 5:00 p.m.) than to ensure attainment of the 8-hour na­ ures with exceptions and conditions. in the similar 5-hour period centered tional carbon monoxide standard GO

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3. 1973 RULES AND REGULATIONS 33369 mg/m3> will also ensure meeting the 1- that 100 percent of the 1968-1974 autos retrofit devices and vehicles of each hour standard (40 mg/m3). Rollback cal­ could be readily retrofitted with the model year. Consequently, EPA can ac­ culations show that a 66 percent reduc­ catalyst. Not all vehicles in this age class cept greater emission reductions for the tion from 1971 carbon monoxide can operate on the unleaded fuel neces­ State plan. However, as with the initial emissions is required to meet the na­ sary for catalyst function. Considering State plan, these measures are not suf­ tional 8-hour standard. tins limiting factor, EPA estimated that ficient to show attainment of the stand­ The second highest 1-hour average only 20 percent of 1968-1970 vehicles and ard; the necessity for VM T reduction concentration of photochemical oxidants 75 percent of the 1971-1974 vehicles remains. Although the revised plan orig­ re c o rd e d in the Phoeirix'-Tucson AQCR could be retrofitted with catalyst con­ inally did not include any control fo r the base year 1971 was 236 /tg/m3. verters (See An EPA White Paper: The measures for VMT reduction, the Gov­ U s in g the relationship between hydro­ Clean Air Act and Transportation ernor acknowledged in his letter accom­ c a rb o n emissions and ambient photo­ Controls). panying the plan that reasonable interim c h e m ic a l oxidant concentrations as de­ For the most part, reductions attain­ measures to reduce VM T must be fin e d i n Appendix J, 40 CFR Part 51, a 31 able by the remaining control measures adopted. Subsequent submittals on Sep­ p e r c e n t reduction from 1971 hydrocar­ of the State plan were considered realis­ tember 21 and October 2, 1973, indicated b on emissions is required to meet the tic and generally approvable. that the Governor’s special task force is n a t io n a l standard of 160 jttg/m3. The transportation control plan, how­ vigorously encouraging business and information presented in the State ever, lacked the necessary procedures for local government to develop carpool in­ P lan a n d in the EPA Technical Support enforcement and administration. Spe­ centives; also being developed are park­ D ocu m e n t (which is available at the cifically, the State does not have legal ing restrictions, improvements in the Office of Public Affairs, EPA Region IX, authority for its inspection/maintenance public transit system, and traffic flow 100 California Street, San Francisco, program; there are no regulations and improvements. California 94111, and at the Freedom of adm inistrative procedures for either in- EPA acknowledges that such measures Information Center, U.S. Environmental spec tion/ maintenance or the retrofit are promising, and that the potential Protection Agency,. 401 M Street, SW., program; and there is no monitoring and for substantial progress exists. Further, Washington, D.C. 20460) shows that the surveillance program. Similarly, the EPA recognizes the firm commitment on anticipated decrease in motor vehicle hy­ transportation control plan does not in­ the part of State and local govern­ d rocarb o n emissions as a result of the dicate that adequate resources have been ments to fully develop and implement F ed e ra l Motor Vehicle Control Program allocated by the State for implementa­ such control strategies. At this point, and th e decrease due to approved con­ tion of these measures. however, some of Arizona’s interim strat­ trols o n stationary sources of hydrocar­ On September 11, 1973, the Governor egies have not been formulated to the bons will be sufficient to meet the na­ of the State of Arizona submitted a re­ point at which EPA can evaluate their tio n a l standard by May 31, 1975, and to vised transportation control plan that effectiveness in reducing VMT, and, ulti­ m a in ta in the standard through 1980. At­ included significant modifications to mately, carbon monoxide emissions. tainment of the carbon monoxide stand­ the earlier State plan. Finally, the revised State plan, like ards will not be achieved by these The inspection/maintenance program the earlier version, lacks the necessary controls. Consequently, supplementary was essentially reproposed: however, the procedures for enforcement and admin­ co n tro ls are required, and, since mobile revised plan contained a claim that the istration, and adequate resources for sources will account for approximately post-maintenance deterioration curve is effective implementation. Until this is 93 pereent'of the carbon monoxide emis­ more realistic than EPA’s, and that, as a done, EPA is promulgating the regula­ sions, additional controls on mobile result, the program could achieve a 22 tions necessary to make the program sources are required. percent reduction in carbon monoxide submitted by the State effective. How­ emissions rather than the 12 percent ever, EPA is confident that the State will |>t at k T ransportation Control P lan allowed by EPA. EPA had assumed the adopt whatever measures are necessary As noted previously, the State of Ari­ deterioration to be linear as a function to carry out its program to a successful zona submitted a transportation control of time, while the State indicated that conclusion. the emission-reducing effectiveness of plan on April 11, 1973. P roposed EPA T ransportation C o n ­ maintenance would not begin to deteri­ Arizona’s control strategy included trol P lan provisions Tor mandatory annual inspec­ orate until much later in the post- tion and maintenance on all light, maintenance year, thus yielding higher In the F ederal R egister of July 16, m ediu m , and heavy duty vehicles, the overall emission reductions than would 1973, the EPA proposed substitute regu­ use of retrofit devices on pre-1976 ve­ be assumed in a linear deterioration. lations to show attainment of the carbon hicles, and the conversion of 10,000 ve­ Based on the analysis of data contained monoxide standard. Recognizing the ef­ h icle s to liquid petroleum gasoline. in the EPA Technical Support Docu­ fort and progress made by Arizona in its inspection/maintenance retrofit pro­ The State plan concluded that these ment and data referenced by the Arizona gram, the Administrator incorporated m easures would achieve emission reduc­ Plan, EPA does not believe that the these individual control measures into tio n s sufficient to attain the standard. 22 percent reduction claimed by Arizona However, EPA analysis, presented in the can be supported at this time. EPA’s proposal as viable measures to re­ EPA Evaluation Report, indicated that The State’s retrofit program was sub­ duce vehicle emissions, and proposed them in accordance with the schedule excessive emission reductions were stantially modified. The use of oxidizing set forth in the State plan. However, c la im e d ,, and that, in fact, these meas­ catalyst converters was restricted to as these control measures were not suffi­ ures were not sufficient to show attain­ 1973-1975 vehicles in accordance with cient to show attainment of the stand­ m e n t of the standard. Consequently, ad­ EPA’s information on the poor applica­ ard, EPA proposed additional measures d itio n a l measures, which control vehicle bility of such devices to older vehicles. designed to achieve the 32 percent re­ usage and consequently total emissions Application of the air bleed to the intake duction in VMT, which EPA considered from the vehicle population at large, manifold device was reproposed for pre-1968 model years. Finally, the State necessary to attain the standard. EPA’s were considered necessary. EPA calcu­ proposal measures included bus/carpool la te d that the additional emission reduc­ proposed the application of a new air bleed/exhaust gas recirculation device lanes on freeways and major streets, 20 tio n necessary to show attainment of the percent reduction in off-street public s ta n d a rd could be achieved with a 32 on all 1968-1972 vehicles. The data do not support the applicability of this parking, and limitations on the con­ p e rce n t reduction in- total vehicle miles struction of additional parking facili­ tra v e le d (VMT). device on 1972 vehicles, and EPA cannot accept emission reductions attributed to ties—all suppleménted by the required The difference between EPA estimates availability of a computer-aided car- a n d those of the State centered primar­ that model year. The State is encouraged pool- and bus pool-matching system. ily around the applicability and effective­ to evaluate possible retrofit alternatives. The intent of these measures was to dis­ ness of the catalyst retrofit. EPA’s In short, the revised State plan dem­ courage individual use of private vehi­ a n a ly s is did not support the State’s claim onstrate better compatibility between cles. EPA calculated that these measures

FEDERAL REGISTER, VOL. 38, NO. 231— M ONDAY, DECEMBER 3, 1973 33370 RULES AND REGULATIONS

could increase the occupancy factor for have not been made. Testimony indi­ toring during the summer months of work-oriented trips by 50 to 75 percent, cated that the Phoenix bus system is 1973 in Tucson and from use of atmos­ and thereby reduce VM T by 10 to 15 per­ presently at capacity during the com­ pheric diffusion models was presented by cent by 1975. muting period. Substantial comment was the Pima County Air Pollution Control To assure that this VMT reduction is received encouraging and supporting District. These data show that in 1977 achieved and to achieve an additional 10 carpooling for commuters as the best the 8-hour carbon monoxide standard to 15 percent reduction by 1977, EPA solution to reduce VMT and congestion, would be substantially exceeded. The val­ proposed to limit gasoline consumption particularly in the absence of a viable ue derived for the maximum 8-hour con­ (at the distributor level) to 1972-1973 transit system. centration in 1977 was 21 mg/m3. levels, and to limit the motorcycle popu­ The required availability of a volun­ A transportation control plan also de­ lation to projected 1975 levels. The gaso­ tary computer-aided bus/carpool match­ signed to attain the standard by 1977 was line limitation was designed to retard ing system, which was included in the submitted by the Pima County Air Pol­ the very rapid VMT growth expected revised State plan, was generahy ac­ lution Control District at EPA’s hearing after 1975; the restriction on motorcycle cepted. Several on-going programs for in Tucson. population was designed to prevent assisting employees to locate and form This plan relied on the measures in counter-productive shifts from automo­ carpools were noted. the State plan (namely inspection/main­ biles to highly polluting motorcycles as The parking reduction measure was tenance and retrofit) and included in­ a result of gasoline limitations and park­ criticized as having potentially adverse creasing the use of carpools, increasing ing bans. effects on downtown business. Similarly, bus service, implementing a computer­ The measures proposed by EPA to the parking review proposal was thought ized traffic control system, instigating a control VM T were sufficient to demon­ to have adverse economic effects. In par­ public education effort, and implement­ strate attainment of the standard. How­ ticular, it was said that such a regulation ing a continuous air quality monitoring ever, the inspection/maintenance and might threaten the growth of the central program. retrofit programs could not be imple­ business district and the proposed Sky mented in time to meet the standards by Harbor Airport expansion. Comments re­ T ransportation C o n t r o l P l a n 1975; therefore, a 2-year extension was ceived on parking review proposals in The EPA promulgation is a combina­ necessary. To satisfy the remaining legal other regions stated that EPA should tion of approval of the Arizona Plan, and requirements for such an extension, the allow state and local organizations the promulgation of portions of the E P A control strategy must consider reason­ option of developing a parking manage­ proposal as modified by the revised State ably available control measures for im­ ment supply plan capable of achieving plan and by testimony received at the plementation as expeditiously as practi­ results that were equivalent to the pro­ hearings. EPA is taking action to approve cable. At the time the EPA plan was posed source-by-source review. the plan proposed by the State, specifi­ proposed, the VM T reduction measures Restrictions on the ownership òf mo­ cally, the inspection/maintenance, ret­ previously discussed were considered to torcycles were opposed. Spokesmen for rofit, employer incentive, and carpool be reasonably available control measures the motorcycle industry requested that matching programs; simultaneously, and sufficient to satisfy the requirements EPA establish emission standards for EPA is promulgating certain require­ for a 2-year extension. motorcycles. Comment was added that ments to assure the effectiveness and im­ if EPA should set such standards, any plementation of the approved State plan. P u b l i c C o m m e n t problem of motorcycles emissions would This combination of approval and pro­ The EPA hearings in Phoenix and be substantially diminished. mulgation constitutes a complete and Tucson elicited substantial public com­ Any limitations on the amount of gaso­ viable transportation control plan that ment regarding, the control measures line sold were opposed. The possible ad­ satisfies the requirements of the Clean proposed by EPA; also, the State of Ari­ verse impact on agricultural operations Air Act. zona used the hearings as an opportunity was cited. Further, the reduction or con­ Each specific control measure of both to present its revised transportation con­ trol would drastically affect the growth the State plan and the EPA promulga­ trol plan. The State also affirmed its economy, and would not accommodate tion are described in the following para­ commitment to develop and implement a continuation of the unprecedented graphs. effective VM T reduction measures. growth that occurred over the last sev­ State plan: Inspection/maintenance Comments were received from a wide eral years. program. An inspection/maintenance range of sources—regional and munici­ Environmental groups in both* cities program has been initiated by the State pal governments, industry, civic organi­ generally supported EPA’s proposals, and of Arizona and is being approved by E P A zations, environmental groups, and indi­ often suggested additional measures such in this plan. This program will require vidual citizens. Generally, EPA’s as bicycle paths, mass transit improve­ owners of light-duty and medium-duty proposal for the State’s inspection/ ments, and land-use controls. One vehicles to have their vehicles inspected maintenance and retrofit programs re­ spokesman concluded his statement with and any needed maintenance performed ceived solid support. However, EPA’s words that generally reflect the tenor of every year. According to the State plan, VMT control measures received gener­ the testimony: “Any regulation adopted the program will commence on July 1, ally adverse comment. Many stated that must have the support of the public.” 1975. EPA is requiring several submis­ such proposals were unrealistic in view Considerable comments was received sions during the development of the in­ of the area’s high degree of dependence on the applicability of the EPA pro­ spection program as follows: draft leg­ on automobiles and lack of alternative posal to the entire Region. The point was islation to be submitted by February 1, modes of transportation. made that it can not be shown that 1974; legislative authority to be estab­ The workability of the measure for there are violations of the national lished by May 1, 1974; and regulations exclusive bus/carpool lanes was doubted. standard in the many communities to be adopted by September 1, 1974. The point was made that without an ex­ spread across the five-county region and These dates are necessary to effect the panded bus system, exclusive bus lanes that auto usage in these communities commitment to obtain legislation during would serve no beneficial purpose and also could not be shown to contribute to the 1974 session of the Arizona legis­ that almost no streets could support the air. pollution problems of Phoenix lature. viable bus lanes. Additional comments and Tucson. Therefore, transportation State plan: Retrofit program. A s w ith were received criticizing the inadequacy control measures should only qpply to the inspection/maintenance p r o g r a m , and inconvenience of the existing transit the Phoenix and Tucson Metropolitan this control measure has been in it ia t e d systems in both Phoenix and Tucson. Areas not the five-county region. by the State of Arizona and is b e in g Although representatives of these cities The fact that the amount of reduction approved by EPA. The State will r e q u ir e spoke of improvements in scheduling for Tucson was based on Phoenix data that all pre-1976 light-duty vehicles be and expansion of the service area, com­ because of the lack of air quality data retrofitted with an appropriate e m is s io n - mitments for purchase of buses for in­ for Tucson was of concern to a significant reducing device (1) On pre-1968 v e h ic le s , creasing the existing transit capacity number of those testifying at the hearing an air bleed to the intake manifold w ill system during the commuting period in Tucson. Data derived from moni- be installed beginning on July 1, 1915.

FEDERAL REGISTER, VOL. 38, NO. 231—MONDAY, DECEMBER 3, 1973 RULES AND REGULATIONS 33371

This device increases the air/fuel mix­ their own. The availability of the match­ mented, a 2-year extension is justified ture by metering additional amounts of ing program is phased to include: a dem­ and necessary. air to the manifold; the result is a leaner onstration program to make the car- Measures not promulgated. There are fuel mixture and more complete combus­ pool matching service available to four measures which EPA has previously tion resulting in fewer emissions. (2) 10,000 employees in the State Capital proposed, but which are not Included in Commencing on July 1, 1975, vehicles area of Phoenix and to 2,000 employees this promulgation. First, the proposed in the 1968-71 model years will be con­ in the central business district of Tucson. restrictions on motorcycle registration trolled using an air/bleed exhaust gas This phase is to be in operation by March met considerable opposition at the public recirculation device. The operation is 1, 1974; the program will be extended to hearings. Also motorcycle industry cimiiar to the air bleed device mentioned include all employees in businesses hav­ spokesmen presented testimony to the previously. (3) Finally, oxidizing catalyst ing more than 200 employees in metro­ effect that emission standards are neces­ converters are to be installed on 1973- politan Phoenix and Tucson by sary and that EPA should set them. EPA 1975 vehicles able to operate on 91 oc­ September 1, 1974; and, finally, the pro­ currently anticipates that such stand­ tane unleaded gasoline. Implementation gram will be made available to employees ards will be established in time for the of the oxidizing catalyst aspect of the of smaller firms (50 or more employees) 1976 model year. In view of this, EPA retrofit strategy will begin June 1, 1976. in both areas by September 1, 1975. has reevaluated this measure and has As with the inspection program, EPA is EPA promulgation: Management of determined that it is not reasonable at requiring several submissions concurrent Parking Supply. This regulation will re­ this time. with the development of the retrofit pro­ quire approval before construction begins Secondly, EPA’s proposed measure re­ gram. In particular, EPA is requiring for any new or modified parking facility quiring a reduction in the number of pub­ draft regulations for the retrofit devices with new capacity or an increase in lic parking spaces was not supported at by February 1, 1974, and adopted regula­ capacity of 50 or more vehicles. An ap­ the hearings. Testimony presented by tions by September 1, 1974. plication requiring information perti­ city officials indicated that most public State plan: Employer carpool incen­ nent to assessing the effect on local air parking is associated with downtown tive program. As part of the Arizona quality and VMT in the Metropolitan areas. Because of this, the measure would Plan, Arizona submitted details of a pro­ Phoenix Area and the City of Tucson affect those who work and shop in the gram to develop and implement an must be approved by EPA or by an EPA- downtown area and park in public park­ employer incentive program. EPA is ap­ approved agency. Provision is made for ing. Since the air quality problem is as­ proving this program and is setting cer­ public comment prior to a final decision. sociated with the urbanized portions of tain program requirements. The em­ As an alternative to instituting review of both cities and not just the downtown ployer carpool incentive program is a each parking facility, any local jurisdic­ areas, this measure has been replaced by new regulation designed to encourage tion may submit a 5-year comprehensive measures that affect parking in larger the use of carpools and mass transit and parking management plan. To be ap­ areas. These replacement measures are discourage employees from riding to proved, this plan will have to demon­ the employer incentive program, which work alone in their automobiles. The strate that when carried out it will have affects the availability or attractiveness program requires an employer who an effect comparable to a review of each of employee parking, and the manage­ maintains more than 200 employee park­ parking facility. ment of parking supply, which reviews ing spaces to provide an incentive pro­ EPA Promulgation: Monitoring trans­ the construction or modification of all gram. Each employee carpool incentive portation trends. In addition to monitor­ parking. program is to be submitted to the State ing air quality, EPA will require trans­ Thirdly, EPA’s proposal to establish by February 1, 1974. Approval or disap­ portation trend monitoring. This will be exclusive bus/carpool lanes is not being proval will be announced by EPA by accomplished to assure the effectiveness promulgated because no segment of the June 1, 1974. On August 1, 1974, EPA of the inspection and maintenance pro­ street network could be identified as will prescribe a plan for each employer gram and the retrofit program. This reg­ capable of supporting a viable bus or car- in the above categories who does not ulation requires that the State monitor pool lane. submit an approvable plan. All plans the actual per-vehicle emissions reduc­ Finally, the proposed limitations on will become effective on September 1, tion achieved as a result of the plan. gasoline consumption was opposed by 1974. EPA envisions employer incentive Monitoring of VMT, average vehicle many hearing witnesses. EPA intended plans to contain incentives such as pref­ speeds, and occupancy factor in the that this admittedly harsh measure be erential or covered parking for carpools, Metropolitan Phoenix Area and the City implemented only after all other con- charges for use of parking spaces by of Tucson is also required to evaluate the - trol measures proved ineffective. Its pur­ single passenger automobiles, reductions effectiveness of the employer carpool in­ pose was to compensate for shortcom­ in the number of parking spaces, sub­ centive program and traffic flow im­ ings in the emission-reducing effective­ sidies to employees who use mass transit, provements. Reports are required quar­ ness of the other control measures. Be­ and/or provision of special charter buses. terly starting with the period from cause EPA is now approving Arizona’s EPA will evaluate each plan in terms of July 1 to September 30,1974. retrofit program, which achieves much higher emission reductions, the gasoline the effectiveness of the incentives in F i n d i n g s achieving an increase in the occupancy restriction measure is not needed to factor. EPA believes an occupancy factor The Clean Air Act requires that na­ show attainment of the carbon monoxide tional ambient air quality standards be standard and will not be promulgated. of two is a reasonable goal. , achieved as expeditiously as practicable. The Incentive program requirements Additional VM T reduction proposals The EPA approved and promulgated that go beyond those of EPA were sug­ will apply to employers in the highly measures are sufficient to attain the traveled portions of Phoenix and Tucson. gested in the hearings, such as bicycle standards. However, attainment is not paths, mass transit improvements, and State Plan: Bus/carpool matching pro­ possible by 1975. The catalyst retrofit land-use controls. EPA believes that all gram. EPA is also approving the imple­ program cannot be implemented until such measures are constructive and ca­ mentation of a bus/carpool matching 1976, with full emission reductions un­ pable of achieving significant improve­ Program. The purpose of the bus/carpool attainable until 1977. Although both the ments in air quality. matching program is to assist commuters remainder of the retrofit program and Although, EPA selected those strat­ who desire to form carpools, or where the inspection/maintenance program there are sufficient commuters, to form will be implemented in mid-1975, the full egies that were capable of achieving buspools. Participation in the program annual cycle necessary to achieve the large-scale emission reductions in a rela­ would be voluntary. Each participant in projected emission reduction will not be tively short time, the Agency strongly fee program would be provided with a completed by the end of 1975. Therefore, encourages local government and inter­ listing of names and work phone num­ est groups to develop strategies to sup­ bers of all other participants who have the standard cannot be achieved until similar origins and destinations and 1977. Because all reasonable and avail­ plement the promulgated control pro­ whose work hours most nearly match able interim measures will be imple­ grams.

FEDERAL REGISTER, VOL. 38, NO. 231— M O NDAY, DECEMBER 3, 1973 33372 RULES AND REGULATIONS

C o m p i l a t i o n o p C o n t r o l S t r a t e g y data base is small, it is supported by T able 2 E f f e c t s technical judgment. Table 1 shows a compilation of con­ It has been noted that implementation Increase in Reduction in of the State-selected strategies of inspec­ New work trip work trip V M T of all trol strategy effects. As can be seen, the occupancy factor occupancy tion/maintenance and retrofit devices by urban trips, national standards for carbon monoxide factor, percent percent 1977 results in emissions in excess of the are attained by 1977 and maintained allowable emissions. The excess emis­ through 1980. 1.4...... 16.7 5 7 sions can be negated by a reduction in 1.5...... 25 1.6...... 33.3 T able 1 ~ VM T by light-duty vehicles of approxi­ 10 mately 9.6 percent. The VM T reduction CONTROL STRATEGY EFFECTS IN PHOENIX-TUCSON AQCR measures must therefore achieve this re­ As noted previously, a VMT reduction duction. It is highly desirable to select of 9.6 percent is required. This per­ Emissions and re­ VMT reduction measures that will be source and control measures duction tons/day centage reduction corresponds to a new least disruptive to individual mobility work-trip-occupancy-factor of approxi­ " " 1975 1977 1980 and habits and most effective in reducing mately 1.6, which is a 33.3 percent in­ VMT. crease. In other words, about one out of Mobile source emissions without • The employee incentive regulations proposed control measures___ _ 656.5 522.2 338.3 every four cars would be removed from conform to this description for several Expected reductions: the work trip and consequently the occu­ Inspection/maintenance ______—62.7 —40.6 reasons. First, work trips constitute the Retrofit devices: pants of one out of every four cars would Catalytic converter (1973— largest single class of trips within the be carpooling with the remaining three 1 9 7 5 )...... -58.1 -43.2 Metropolitan Phoenix Area by a factor during the work-related trips. Exhaust gas recirculation of more than two: approximately 40 per­ (1968-1971)...... -6 9 .2 -2 8 .7 The first phase of the em ployer car- Air bleed (pre-1968)______-7 0 .8 -4 2 .5 cent of urban travel is work-oriented, VMT reduction measures.____ -6 3 .0 —25.2 10- 20 percent is shopping-oriented, and pool incentive program will affect ap­ Motorcycles______14.0 16.8 18.6 proximately 30 percent of a ll employed Heavy-duty vehicles...... 69.6 82.3 98.6 11- 22 percent is social-recreational. (See Inspection/maintenance______- 9 .3 -1 1 .4 Transit and the Phoenix Metropolitan persons (those in businesses w ith 200 Other (stationary, aircraft, etc).. 25.7 28.7 31.5 Area, Maricopa County Association of emplpyee parking spaces). A ttainm en t of an occupancy factor of 2 for those em­ Total emissions remaining______702.8 351.7 320.6 Governments, which is available at EPA Allowable emissions for attain- Region IX, 100 California Street, San ployees will achieve an overall work trip m ent of CO standards...... 351.7 351.7 351.7 occupancy factor of about 1.4, or, as Estimated second-high 8-hour Francisco, California 94111.) Therefore, CO concentration...... i 20.0 J 10.0 i 9.1 any strategy affecting work-related VMT shown above, a 5 percent reduction in National 8-hour CO standard___ i 10 i 10 i 10 would potentially have the greatest re­ VMT for all urban trips. T h e second duction. Second, work trips have a defi­ phase of the employer carpool incentive 1 Milligrams per cubic meters. nite pattern defined by a specific origin program will extend to all em ployed per­ sons in businesses with 70 employee park­ B a s i s f o r R e d u c t i o n s C l a i m e d and destination and occur at a specific time each weekday. Carpooling by work ing spaces. The expected e ffec t o f the As has been previously discussed, the second phase is to raise the work trip transportation control plan submitted by commuters with identical origins, desti­ nations, and times is therefore possible occupancy factor to about 1.6 for lOper- the State of Arizona shows significantly ceht reduction in VM T for a ll urban more; reduction for inspection/mainte­ without disrupting mobility patterns of individuals as severely as would disrupt­ trips. The 10 percent VM T reduction can nance and retrofit than has been claimed be achieved by attaining an occupancy in this promulgation. The difference is ing ¡shopping, social-recreational, or business trips. Another important aspect factor of 2 for 60 percent of all employed primarily due to the amount of reduc­ persons. tion that can be achieved by a loaded in­ is the effectiveness of reducing the work trip VM T because of the significance of VM T reductions in a future year are spection program. The average reduction calculated from a growth curve, rather percentage for this program is calculated the timing of the work trip. This is due to the fact jthat the highest concentrations than from current levels. The regulation by the Arizona DAPC to be 22.2 percent for the review of new parking lots should of the carbon monoxide emissions from of carbon monoxide occur in the even­ contribute to VM T reduction by prevent­ light-duty vehicles. EPA has calculated ing hours during the winter months ing the construction of the new parking the reduction to be 12 percent. The dif­ when a surface inversion occurs just prior to the evening peak traffic (caused lots that cause violations ^of air quality ference in the two values results from standards. These parking lots would different estimations of the rate of de­ 'primarily by work VM T) and produces stable atmospheric conditions that pro­ have been a part of the VMT growth terioration between maintenance events. curve. This measure should provide a ve­ EPA evaluation of the data presented by mote accumulation of the resultant auto­ mobile pollutants. hicle for maintaining the air quality Arizona to support its claim is that the standards once they have been achieved. data do not specifically relate to deterio­ ~ Specific reduction values for control ration when mandatory inspection is re-' measures that have the effect of reducing E c o n o m i c a n d S o c i a l I m p a c t s of quired. Although the arguments of VM T for the Phoenix or Tucson metro­ P r o m u l g a t e d C o n t r o l S t r a t e g y Arizona’s automotive experts may have politan areas are not known. It is possi­ ble, however, to estimate the percentage In discussing the impacts of the trans­ merit, EPA policy requires use of the esti­ portation control plan, it is helpful to mated emission reductions contained in reduction in VM T of all urban trips re­ sulting from an increase in work trip understand that the control measures fit Appendix N of 40 CFR, Part 51, except into two categories: measures that place when emissions reductions can be sup­ occupancy factor (number of persons per vehicle). Once the decrease in total VMT control at the source, such as inspection/ ported by adequate analysis and data. maintenance and retrofits; and measures Therefore, reduction values for Appendix is known for various increases in work trip occupancy factors, the occupancy that control the total mileage traveled N have been used for estimating the by the vehicle population at-large, such effect of an inspection program. factor corresponding to the required VM T reduction can be evaluated for real­ as carpooling and management of park­ The percentage reductions (50 per­ istic attainment in terms of each selected ing supply. cent) attributed to use of the catalytic control measure. Impacts associated with the first class and air bleed retrofit devices are based Using an estimated occupancy factor of control measures are primarily eco­ on information contained in Appendix of 1.2 persons per vehicle and an estimate nomic. The automobile owner will incur N. The effectiveness of the exhaust gas that 40 percent of urban travel is work- directly the cost of annual inspection recirculation retrofit (40 percent) for oriented (see above), the areawide VMT (approximately $5) and post-inspection 1968-1971 light-duty vehicles was estab­ maintenance (between $1 and $31) > reductions can be achieved for increases lished from limited technical data com­ which may be necessary on an annual puted both by EPA and by the manufac­ in the work trip occupancy factor as basis. Such maintenance may result in turer of one of the devices. Although the noted in Table 2. greater fuel economy and savings. It

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 RULES AND REGULATIONS 33373

6. Subpart D is amended by adding should also be noted that the program previously published notice, applies to is self-supporting: the $5 inspection fee actions taken after August 15,1973. § 52.132 to read as follows: will cover the operating costs outlay for (42 U.S.C. 18570-5(c) and 1857g) § 52.132 Transportation control compli­ inspection equipment. ance schedule. Dated: November 21,1973. The automobile owner will also incur The requirements of 51.14 are not fully direct out-of-pocket expenses when he R u s s e l l E . T r a i n , met with respect to transportation con­ retrofits his vehicle. For the oxidizing Administrator. trol measures. catalyst (vehicle model years 1973-1975), (а) Definitions: this cost will be approximately $90 to Subpart D of Chapter 1, 40 CFR Part 52 is amended as follows: (1) “ Inspection and maintenance $140; for air bleed/exhaust gas recircu­ program” means a program to reduce lation (1968-1971), approximately $35 to Subpart D— Arizona emissions from in-use vehicles through $45. In addition, there will likely be costs 1. Section 52.120 is amended by revis­ identifying vehicles that need emission incurred for replacement, although the control related maintenance and re­ frequency of replacement cannot yet be ing paragraph (c) to read as follows: quiring that such maintenance be determined. § 52.120 Identification of plan. performed. The impacts associated with carpool­ ***** (2) “ Light-duty vehicle” means a ing and management of parking supply (c) Supplemental information was gasoline-powered motor vehicle rated at are much more difficult to quantify. However, the following assumptions re­ submitted on: 6,000 lb GVW or less. (1) March 1, March 2, and May 30, (3) “ Medium-duty vehicle” means a garding carpooling are reasonable: com­ 1972, by the Arizona State Board of gasoline-powered vehicle rated at more muters can realize substantial savings by sharing fuel and parking costs; and, Health. than 6,000 lb GVW and less than 10,000 (2) April 11,1973, and May 10,1973. for many families, carpooling may elimi­ lb GVW. (3) September 11, 1973, by the Gov­ nate the need for a second automobile. (4) “Air bleed control device” means Both the carpooling program and the ernor, and; a system or device (such as a modifica­ parking management supply plan may (4) September 21, 1973, and October tion to the engine’s carburetor) that re­ stimulate more effective land use plan­ 2,1973. sults in engine operation at an increased 2. Section 52.122 is amended by add­ air-fuel ratio so as to achieve reduction ning efforts. in exhaust emissions of hydrocarbon and On the larger scale, the primary im­ ing paragraph (d) to read as follows: carbon monoxide from 1967 and earlier pacts will be cleaner air, diminished § 52.122 Extensions. light-duty vehicles of at least 21 and 58 health problems, and improvements in the quality of life. In a more immediate * * * * * percent, respectively. (5) “Air bleed/exhaust gas recircula­ sense, these measures are significant in (d) The Administrator hereby extends terms of the nation’s present energy for 2 years the attainment date for the tion device” means a system or device (such as modification of the engine’s crisis. The automobile is extraordinarily national standards for carbon monoxide wasteful of energy and resources, par­ in the Phoenix-Tucson Intrastate Air carburetor or positive crankcase ventila­ ticularly if that automobile transports Quality Control Region. tion system) that results in engine op­ eration at an increased air-fuel ratio only one person. Four to five empty seats 3. Section 52.123 is revised to read as in each automobile that transports only so as to achieve reductions of hydrocar­ follows: ’ one person represent an enormous bons and carbon monoxide of 25 percent amount of available transportation ca­ § 52.123 Approval status. and 40 percent, respectively, from light- pacity, and more importantly, a vast un­ duty vehicles of model years 1968 (a) W ith the exceptions set forth in through 1971. used national resource as well. The this subpart, the Adm inistrator approved carpooling strategies in Arizona and (б) “ Oxidizing catalyst” means a de­ Arizona’s plan for the attainment of vice installed in the exhaust system of around the country will utilize this avail­ the national standards. able transportation capacity and tap this the vehicle that utilizes a catalyst and, (b) With regard to the transporta­ if necesary, an air pump to reduce emis­ national resource. tion control strategies submitted by the sion of hydrocarbons and carbon monox­ Over 25 percent of the nations energy State of Arizona, the Administrator ap­ consumption is used for transportation, ide by 50 percent from that vehicle. proves the inspection program for light- (7) All other terms used in this para­ with 75 percent of this, or 20 percent of duty and medium-duty vehicles; the the total, used by automobiles and other graph that are defined in Appendix N to program for retrofit of air bleed devices Part 51 of this chapter, are used herein motor vehicles. Seventy-five percent of on pre-1968 light-duty vehicles, the the energy used by automobiles is wasted with the meaning therein defined. retrofit of air bleed/exhaust gas recircu­ (b) This section is applicable in Mari- due to the inefficiency of the automobile lation devices on 1968 through 1971 engine. In addition, the remaining quar­ cop and Pima Counties in the Phoenix- light-duty vehicles, the retrofit of oxidiz­ Tucson Intrastate Region. ter of the energy is largely wasted in any ing catalytic converters on 1973 through functional sense, since most American (c) To implement the approved con­ 1975 light-duty vehicles, the gaseous fuel trol measures specified in Sections 5 and cars are far too big and heavy for their conversion program; the carpool match­ usual job of moving one or two people 7 of the plan submitted September 11, ing program; and the employer carpool 1973, and to complete the requirements about. incentive programs with the exceptions Effective Date of §§ 51.11(b), 51.14 and 51.15 of this set forth in § 52.130, § 52.132, § 52.135, chapter, the State of Arizona must sub­ These regulations promulgated today and § 52.136. mit to the Administrator: become effective on December 31, 1973, § 52.131 [Amended] (1) No later than Februray 1, 1974, except in the case of those regulations detailed compliance schedules showing that impose requirements for specific 4. In § 52.131, the attainment date table is revised by replacing the date the steps the State of Arizona will take action at earlier dates. In such cases, “May 31, 1975, d” for attainment of the to establish and enforce the inspection the A dm in is tra to r has found that good standards for carbon monoxide in the and maintenance program for light-duty and medium-duty vehicles; the program cause exists for accelerating the effective Phoenix-Tucson Intrastate Air Quality date because of the need to take action for retrofit of air bleed devices on pre- Control Region with the Date “May 31, 1968 light-duty vehicles, of air bleed/ as expeditiously as practicable in order 1977” ; and by revoking and reserving exhaust gas recirculation devices on to attain and maintain the national am­ footnote “d”. 1968 through 1971 light-duty vehicles, bient air quality standards. The regula­ and of oxidizing catalytic convertors on § 52.132 [Reserved] tion for management of parking supply 1973 through 1975 light-duty vehicles; is effective immediately upon publica­ 5. Section 52.132 is revoked and re­ and the gaseous fuel conversion pro­ tion and, pursuant to court order and served. gram. These schedules shall include:

FEDERAL REGISTER. VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 33374 RULES AND REGULATIONS

(1) The text of proposed legislation include appropriate penalties for viola­ (b) The requirements of § 51.14 (a) and and regulations for the inspection and tion. (b) of this chapter are not met because maintenance program, the gaseous fuel (5) Designation of an agency or the plan does not provide a description conversion program, and the light-duty agencies responsible for conducting, of enforcement methods, administrative vehicle retrofit programs. overseeing, and enforcing the inspection policies, and proposed rules and regula­ (ii) A signed statement from the gov­ and maintenance program. tions pertaining to the selected trans­ ernor or his designee identifying the (6) Requirements that the State, after portation control measures. sources and amounts of funds for the July 1, 1975, shall not register or allow (c) (1) The State-submitted inspection programs. I f funds can not legally be to operate on its highways any light- and maintenance program is disapproved obligated under existing statutory au­ duty or medium-duty vehicle that does to the extent it provides for inspection thority, the text of needed legislation not comply with the applicable stand­ and maintenance of vehicles of over shall be submitted. ards and procedures adopted pursuant to 10,000 lb GVW. (iii) The date by which the State will the approved inspection and mainte­ (2) The State-submitted air bleed/ recommend all needed legislation to the nance program and to paragraph (d) of EGR retrofit program is disapproved to State legislature. this section. This shall not apply to the the extent it provides for the retrofitting (iv) The date by which necessary initial registration of a new motor ve­ of such devices on 1977 model vehicles. equipment for the inspection and main­ hicle. 8. Subpart D is amended by adding tenance and carpool matching program (7) Requirements that after July 1, will be ordered. §§ 52.137, 52.138, 52.139, and 52.140 as 1976, no owner of a light-duty vehicle follows: (2) No later than May 1, 1974, the shall operate or allow the operation of legislative authority for implementing any such vehicle that does not comply § 52.137 Employer carpool incentive the inspection and maintenance pro­ with the applicable standards and pro­ program. gram and the gaseous fuel conversion cedures adopted pursuant to the ap­ (a) Definitions: program. proved inspection and maintenance (1) “Metropolitan Phoenix Area” (3) No later than September 1, 1974, program and to paragraph (d) of this means the area bounded on the south the adopted regulations and adminis­ section. This shall not apply to the initial by 1-17 and Buckeye Road to the inter­ trative policies necessary for implemen­ registration of a new motor vehicle. section with 1-17, on the east by 48th tation of the control measures cited in . (8) The State may exempt any class or Street, on the north by the Arizona Canal paragraph (c) (1) of this section. category of vehicles that the State finds and Glendale Avenue, and on the west by (4) No later than January 1, 1974, a are rarely used on public streets and 43rd Avenue. compliance schedule for the employee highways (such as classic or antique ve­ (2) “ Greater Tucson Area” means an carpool incentive program outlined in hicles) . area bounded by a line starting at the in­ section 8 of thé State of Arizona Air Pol­ (e) The regulations adopted to imple­tersection of Sweetwater Drive and Sil- lution Control Implementation Plan, ment the approved retrofit programs re­ verbell Road, thence 6 miles east, thence Transportation Control Strategies. This ferred to in paragraph (c) (1) of this sec­ 1.5 miles south, thence 5.5 miles east, compliance schedule shall conform to the tion shall include as a minimum- requirements of § 52.137. thence 7.5 miles south, thence 4.5 miles (1) Requirements that on or before west, thence 3 miles south/ thence 5 miles (5) No later than January 1, 1974, May 3, 1977, all gasoline-powered fleet a compliance schedule for the carpool west, thence 5 miles north, thence 2 miles vehicles, and all private light-duty ve­ west, thence 7 miles north to the point matching program. This compliance hicles of 1973 through 1975 model years of origin. schedule shall conform to the require­ subject to registration in Maricopa and ments of § 52.138. (b) This section is applicable within Pima Counties, shall be equipped with an the Metropolitan Phoenix and Greater (d) The regulations adopted to im­appropriate oxidizing catalyst control de­ plement the approved inspection and Tulson areas in the Phoenix-Tucson vice. Intrastate Air Quality Control Region. maintenance program referred to in (2) Requirements that on or before (c) On or before January 1, 1974, the paragraph (c) (1) of this section shall August 1, 1976, all gasoline-powered, State of Arizona shall submit to the Ad­ include as a minimum. light-duty vehicles of model year 1968 to (1) Provisions for inspection of all 1971 subject under presently existing ministrator a compliance schedule im­ plementing the approved employer car- such motor vehicles at periodic intervals legal requirements to registration in at least once each year by means of an Maricopa and Pima Counties, shall be pool incentive program. This compliance schedule shall, at a minimum, provide emission test having a loaded mode test equipped with an air bleed/exhaust gas that each employer in areas specified in cycle. recirculation control device. paragraph (b) of this section who main­ (2) Provisions for inspection failure (3) Requirements that on or before criteria consistent with the failure of tains more than 200 employee parking August 1, 19^6, all gasoline-powered, spaces shall, on or before February 1, 50 percent of the vehicles tested during light-duty vehicles of model years prior the first inspection cycle. 1974, submit to the State of Arizona an to 1968 subject to registration in Mari­ adequate incentive program designed to (3) Provisions to require that failed copa and Pima Counties, shall be equip­ vehicles receive, within 30 days, the encourage the use of carpools and mass ped with an appropriate air bleed device. transit and discourage employees from maintenance necessary to achieve com­ The State may exempt any class or cate­ pliance with the inspection standards. using single-passenger automobiles to gory of vehicles that the State finds are commute to work. Each program shall This shall include sanctions against non­ rarely used on public streets and high­ complying individual owners and repair contain provisions for preferential park­ ways (such as classic or antique vehicles) ing, covered parking, and other benefits facilities, retest of failed vehicles follow­ or for which the State demonstrates to ing maintenance, a certification program to employees who travel to work by car- the Administrator that air bleed retrofit pool; subsidies to employees who use to ensure that repair facilities perform­ devices are not commercially available. ing the required maintenance have the mass transit; reductions in the number necessary equipment, parts, and knowl­ 7. Subpart D is amended by revisingof employee parking spaces or surcharges edgeable operators to perform the tasks § 52.136 to read as follows: on the use of such spaces by employees; satisfactorily, and such other measures provision of special charter buses or § 52.136 Control strategy: Carbon mon­ other modes of mass transit for the use as may be necessary or appropriate. oxide. of employees; and/or any other measures (4) A program of enforcement, such (a) The requirements of § 51.14 of thisacceptable to the Administrator. By as a spot check of idle adjustment, to chapter are not met because the plan April 1, 1974, the State of Arizona shall ensure that, following maintenance, ve­ does not contain sufficient measures to submit each program so received, to­ hicles are not subsequently readjusted or provide for attainment and maintenance gether with the State’s evaluation of th® modified in such a way as would cause of the national standards for car­ program and the State’s recommenda­ bon monoxide in the Fhoenix-Tucson in ­ tion as to whether that program should them to no longer comply with the in­ trastate Region as expeditiously as prac­ be approved or disapproved, to the Ad­ spection standards. This program shall ticable. ministrator.

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 RULES AND REGULATIONS 33375

(d) On or before June 1, 1974, the Ad­ Administrator by June 1,1975. Each such (ii) Greater Tucson Area. All em­ ministrator shall approve or disapprove program, when approved, shall be subject ployees in businesses having more than each program so submitted. Notice of to revocation as provided in paragraph 100 employees. such approved or disapproval shall be ( f ) of this section. (3) On or before September 1, 1975, published in this Part 52. (j) By June 1,1975, the Administratorbus/carpool matching shall be made (e) In order to be approvable by the shall prescribe a carpool incentive pro­ available to the following employees: Administrator, each program shall con­ gram for each employer to which para­ (i) Metropolitan Phoenix Area. All em­ tain procedures whereby the employer graph (i) of this section is applicable if ployees in businesses having more than will supply the State of Arizona and the such employer has not submitted a pro­ 50 employees. Administrator w ith sem iannual certified gram. By August 1,1975, the Administra­ (ii) Greater Tucson Area. All em­ reports that shall show, at a m inim um tor shall prescribe a carpool incentive ployees in businesses having more than the following inform ation: program for each employer to which 50 employees. (1) The number of employees at each paragraph (i) of this section is applica­ (d) The compliance schedule shall also of the employer’s facilities within the ble if the program submitted is not ade­ include the following: areas specified in paragraph (b) of this quate. Within 2 months after any revo­ (1) A method of collecting information section on October 15,1975, and as of the cation of any program of any employer that shall include the following as a date of the report. pursuant to paragraph (f) of this sec­ minimum: (2) The number of (i) free and

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 No 231—Pt. IT---- 2 33376, RULES AND REGULATIONS

Region: Phoenix, Tucson, Scottsdale, capacity by that amount; shall, in addi­ or authority may submit to the Admin­ Tempe, Mesa, and Glendale. tion to that information required by istrator a comprehensive parking man­ (c) The requirements of this section paragraph (f ) of this section, include the agement plan covering, at a minimum are applicable to the following parking following information unless the appli­ the next 5 years. The plan must be sub­ facilities in the areas specified in para­ cant has received a waiver from the mitted on or before April 1, 1974. By graph (b) of this section, the construc­ provisions of this paragraph from the June 1, 1974, the Administrator shall tion or modification of which began after Administrator or agency approved by the approve such plans if he finds that: August 15, 1973: Administrator: (1) The agency submitting the plan (1) Any new parking facility with (1) The number of people using or has full and adequate legal authority to parking capacity of 50 or more motor engaging in any enterprises or activities enforce compliance with its re­ vehicles; that the facility will serve on a daily quirements. (2> Any parking facility that will be basis and a peak hour basis. (2) The area over which the agency modified to increase parking capacity by (2) A projection of the geographic exercises the authority described in para­ 50 or more motor vehicles; and areas in the community from which graph (k) ( 1) of this section is a logical (3) Any parking facility constructedpeople and motor vehicles will be drawn unit for air pollution control planning or modified in increments which individ­ to the facility. Such projection shall in­ purposes. ually are not subject to review under this clude data concerning the availability of (3) The plan sets forth a complete de­ section, but which, when all such incre­ mass transit from such areas. scription of where additional construc­ ments occurring since August 15, 1973, (3) An estimate of the average and tion of parking facilities will be allowed are added together, would as a total sub­ peak hour vehicle trip generation rates, under the plan, and where parking spaces ject the facility to review under this before and after construction or modi­ will be eliminated. The plan shall in­ section. fication of the facility. clude any procedures for adjustments or (d) No person shall commence con­ (4) An estimate of the effect of the variances to existing zoning or building struction or modification of any facility facility on traffic pattern and flow. codes that require parking spaces for subject to this section without first ob­ (5) An estimate of the effect of the new facilities that are inconsistent with taining written approval from the Ad­ facility on total VM T for the air quality the plan. The plan must state in detail ministrator or an agency designated by control region. the reasons for expecting any antici­ him; provided, that this paragraph shall (6) An analysis of the effect of the pated reduction in parking spaces, and not apply to any construction or modifi­ facility on site and regional air quality, must provide that no parking facility cation for which a general construction including a showing that the' facility will may legally be constructed in the area contract was finally executed by all ap­ be compatible with the applicable imple­ subject to the plan unless such construc­ propriate parties on or before August 15, mentation plan, and that the facility tion is specifically authorized by the 1973. will not cause any national air quality plan. (e) No approval to construct or mod­ standard to be exceeded within 10 years (4) The plan demonstrates that if its ify a facility shall be granted unless the from date of application. The Adminis­ terms are carried out, air quality will applicant shows to the satisfaction of trator may prescribe a standardized improve at least as much as if all new the Administrator or' agency approved screening technique to be used in analyz­ parking facilities were subject to the re­ by him that: ing the effect of the facility or ambient quirements of paragraph (d) through (1) The design or operation of the air quality. (j) of this section. I f any increase in facility will not cause a violation of the (7) Additional information, plans, VM T would result under the proposed control strategy that is part of the ap­ specifications, or documents required by plan over and above the VM T figure that plicable implementation plan, and will be the Administrator. would result if the review system out­ consistent with the plan’s VMT reduc­ (i) Each application shall be signed lined in paragraphs (d) through (j) of tion goals. by the owner or operator of the facility, this section were followed, the plan shall (2) The emissions resulting from the whose signature shall constitute an show by clear and convincing evidence design or operation of the facility will agreement that the facility shall be op­ that any resulting impact on air quality not prevent or interfere with the attain­ erated in accordance with the design will be insubstantial. ment or maintenance of any national submitted in the application and with (5) The plan has been adopted after ambient air quality standard at any time aplicable rules, regulations, and permit a public hearing held in the conformity within 10 years from the date of conditions. with the requirements of § 51.4 of this application. (j) Within 30 days after receipt of an chapter. ( f ) All applications for approval under application, the Administrator or agency (1) In any area covered by a parking this section shall include the following approved by him shall notify the public, management plan approved under para­ information: by prominent advertisement in the graph (k) of this section, no action to (1) Name and address of the Region affected, of the receipt of the ap­ expand the number of spaces at parking applicant. plication and the proposed action on it facilities may be taken that is not ex­ (2) Location and description of the (whether approval, conditional approval, plicitly provided for in the plan without parking facility. or denial), and shall invite public a permit issued in accordance with the (3) A proposed construction schedule. comment. requirements of paragraphs (d) through (4) The normal hours of operation of (1) The application, all submitted (j) of this section. the facility and the enterprises and activ­ information, and the terms of the pro­ ities that it serves. § 52.140 Monitoring transportation posed action shall be made available to trends. (5) The total motor vehicle capacity the public in a readily accessible place before and after the construction or within the affected air quality region. (a) This section is applicable to the modification of the facility. (2) Public comment submitted within State of Arizona. (g) The Administrator may require 30 days of the date such information is (b) In order to assure the effective­ an application for the construction or made available shall be considered in ness of the inspection and maintenance modification of between 50 and 249 making the final decision on the program and the retrofit devices required spaces to include the information re-, application. under the Arizona implementation plan, quired by paragraphs (h )(1) - through (3) The Administrator or agency ap­ the State shall monitor the actual per- (7) of this section. proved by him shall take final action vehicle emissions reductions occurring as (h) All applications under this section (approval, conditional approval, or de­ for new parking facilities with parking nial) on an application within 30 days a result o f such measures. All data ob­ capacity for 250 or more vehicles, or for after close of the public comment period. tained from such monitoring shall be any modification which, either individu­ (k) As an alternative to satisfying the included in the quarterly report submit­ ally or together with other modifications requirements of paragraphs (d) through ted to the Administrator by the State in since August 15, 1973, will increase (j) of this section, any local jurisdiction accordance with § 51.7 of this chapter.

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 RULES AND REGULATIONS 33377

The first quarterly report shall cover the shall be collected on a monthly basis and a compliance schedule to implement this period January 1 to March 31, 1976. submitted in a format similar to Table 1. section. The program description shall (c) In order to assure the effective im­ T able l include the following: plementation of §§ 52.137, 52.138, and Tim e period______(1) The agency or agencies responsi­ 52.139, the State shall monitor vehicle Affected area-...... ble for conducting, overseeing, and miles- traveled and average vehicle maintaining the monitoring program. V M T or Average Vehicle (2) The administrative procedures to speeds for each area in which such sec­ Speed tions are in effect and during such time Roadway type be used. periods as may be appropriate to eval­ Vehicle Vehicle (3) A description of the methods to be uate the effectiveness of such a program. type (1) type (2)1 used to collect the emission data, VMT All data obtained from such monitoring data, and vehicle speed data; a descrip­ F reew ay______— shall be included in the quarterly report A rterial______... tion of the geographical area to which submitted to the Administrator by the Collector______the data apply; identification of the lo­ State of Arizona in accordance with Local------cation at which the data will be col­ § 51.7 of this chapter. The first quar­ i Continue with other vehicle types as appropriate. lected; and the time periods during terly report shall cover the period from which the data will be collected. July 1 to September 30,1974. The vehicle (d) No later than March 1, 1974, the miles traveled and vehicle speed data State shall submit to the Administrator [PR Doc.73-25118 Filed 11-30-73;8:45 am ]

FEDERAL REGISTER. VOU 38. N O . 231— MONDAY, DECEMBER 3, 1973

MONDAY, DECEMBER 3, 1973 WASHINGTON, D.C.

Volume 38 ■ Number 231

PART III

DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE

Social and Rehabilitation Service

MEDICAID

Eligibility Requirements 33380 RULES AND REGULATIONS

Title 45— Public Welfare lies in like circumstances must be treated PART 248— COVERAGE AND CONDITIONS CHAPTER II— SOCIAL AND REHABILITA­ similarly. Another respondent believes OF ELIGIBILITY FOR MEDICAL ASSIST­ TION SERVICE (ASSISTANCE PRO­ that OASDI beneficiaries should be cov­ ANCE GRAMS), DEPARTMENT OF HEALTH, ered whether or not the State’s Medic­ 2. Section 248.10 is amended, as set EDUCATION, AND WELFARE aid plan included them as an optional forth below, by revising paragraphs (a) group in August 1972. However, the in­ MEDICAID (1) and (b )(2 ) (ii) and (iv ); renumber­ tent of the legislation was to protect ing paragraph (b) (3), (4), and (5) as Eligibility Requirements current recipients rather than to bring (b) (5), (6), and (7) respectively, revis­ Notice of proposed rulemaking regard­ in new ones. A county official objected to ing the renumbered paragraph (b)(7), ing Medicaid eligibility Requirements was the termination of Federal matching for and adding new paragraphs (b) (3) and certain administrative costs, while published in the F ederal R egister on (4 ); and revising paragraphs (d) (1) June 21, 1973 (38 FR 16309). The pro­ another comment predicted that termi­ and (2). posal related to the following provisions nation of such matching would force on the States “a massive accounting prob­ § 248.10 Coverage and conditions of eli­ of Puib. L. 92-603, Social Security Amend­ gibility for medical assistance. ments of 1972: lem from which any potential savings 1. Section 255. Requires that entitle­ will most probably be more than offset by (a) Definitions.—When used in this ment to Medicaid be retroactive to the increasing administrative costs.” Such part: third month prior to the month of ap­ termination is required, however, since (1) The term “categorically needy" the statutory support for such matching plication if the applicant received medi­ refers to an individual who is receiving has been removed. cal or remedial care and was (or would financial assistance under the State’s have been) eligible for Medicaid at the The following changes have been made approved plan under title I, IV-A, X, time he received it (§ 206.10(a) (6 )). in the regulations to clarify the language XIV, or XVI of the Social Security Act, 2. Section 2491?. Requires that in­ or to incorporate changes made neces­ or is in need under the State’s standards dividuals eligible for financial assistance sary by new legislation. for financial eligibility in such plan. (See and entitled to OASDI benefits for Au­ (1) An effective date has been added § 233.20 of this chapter. See also para­ gust 1972 who become ineligible for to subparagraph (6) of § 206.10(a) to graphs (b). (3) and (4) of this section for financial assistance solely because of the clarify that this requirement is retroac­ individuals who are treated as if they 20-percent increase in OASDI benefits tively effective. were “categorically needy”.) shall continue to be eligible for Medicaid (2) Subparagraphs (3) and (3) (ii) (B) (2) The term “medically needy” re­ through June 1975, as though they were of § 248.10(b) have been amended by in­ fers to an individual whose income and “ categorically needy”, i.e. still eligible for serting “ July 1, 1975” in place of “Oc­ resources equal or exceed the State’s a money payment (§§ 248.10(a) (1) and tober 1, 1974” as required by Pub. L. 93- standards under the appropriate finan­ (b )(3 ); 248.20(b) and (c) (2 )). 66, which was enacted after the proposed cial assistance plan but are insufficient 3. Section 209(a). Requires that cer­ rulemaking was published. to meet his costs for medical insurance tain AFDC families which become in­ (3) Subparagraphs (3) (ii) (A ) (2) and premiums and for necessary medical and eligible for financial assistance solely be­ (B) (1) and (2 ) of § 248.10(b) have been remedial care and services recognized cause of increased income from employ­ clarified. under State law but not encompassed in ment shall continue to be eligible for (4) An effective date has been added the State plan for medical assistance, Medicaid for 4 months. (§§ 248.10(a) (1) and other modifications made to § 248.- plus his costs for medical and remedial and (b) (4 ); 248.21(b) and (c) (2 )). 10(d) to clarify that the limitation on care and services included in the State 4. Section 299B. Provides Federal fi­ Federal matching is retroactively effec­ plan. nancial participation in expenditures for tive. (b) State plan requirements.—A State inpatient psychiatric care for individuals Chapter II, title 45 of the Code of plan under title X IX of the Social Se­ under 21, and, under certain circum­ Federal Regulations, is amended as set curity Act must: stances, up to age 22 (§ 248.10(b) (2) (iv) forth below: (1) Provide that medical assistance will be available to the following groups and (d) (2) ( i ) ; 248.30(b) (1 ); and 248.60 PART 206— APPLICATION, DETERMINA­ (a )(2 ) and (3 )(iv ). (Other proposed TION OF ELIGIBILITY AND FURNISH­ o f “categorically needy” persons: regulations prescribing requirements for ING ASSISTANCE— PUBLIC ASSIST­ (1) All individuals receiving aid or providing such care under the Medicaid ANCE PROGRAMS assistance under the State’s approved program will be published with oppor­ plans under titles I, IV-A, X, XIV, and tunity for public comment in the near 1. Section 206.10 is amended by revis­ X V I of the act; this includes all in­ future.) ing paragraph (a) (6) to read as follows: dividuals who (a) are essential persons 5. Section 230. Repealed section 1903 § 206.10 Application, determination of under the State plan and (b) could be (e) of the Act, which required States to eligibility and furnishing assistance. recipients, if the State plan were as gradually broaden the scope of care and broad as permitted for Federal financial services and liberalize eligibility require­ (а) State plan requirements. * * * participation; ments under their Medicaid plans so (б) Entitlement will begin as specified (ii) All individuals under 21 who are, that, by July 1,1977, comprehensive care in the State plan, which (i) for financial or would be, except for age or school at­ and services would be furnished to sub­ assistance must be no later than the tendance requirements, dependent chil­ stantially all individuals who met the eli­ date of authorization of payment and, dren under the State’s approved AFDC gibility conditions with respect to income for purposes of Federal financial par­ plan; “ and resources under the State plan. Fed­ ticipation, may be as early as the first (iii) All persons who would be eligible eral financial participation for certain of the month in which an application has for aid or assistance under one of the administrative costs has accordingly been received and the individual meets other approved State plans except for been terminated: all the eligibility conditions, and (ii) any eligibility condition or other require­ Comments were received from eight for medical assistance, effective July 1, ment in such plan that is specifically respondents, dealing primarily with pro­ 1973, must be no later than the third prohibited in a program of medical as­ visions required by law, i.e., retroactive month prior to the month of application sistance under title X IX of the act. coverage (including deceased persons) for financial or medical assistance if the (2) Specify any other groups of “cate­ and continued coverage of AFDC fami­ individual was eligible, or on application gorically needy” individuals (not covered lies. It was suggested that uniform eligi­ (regardless of whether or not the indi­ by subparagraph (1) of this paragraph), bility requirements be established; how­ vidual was alive at the time of applica­ that will be included in the program. ever, this would require legislation. One tion) would have been eligible on the These may include: comment stated that families receiving date that he received medical care or (i) Persons who meet all the condi­ continued coverage should be treated as services; and may be as early as the first tions of eligibility, including financial categorically needy only if the State has day of such third prior month if he was eligibility, of one of the State’s other ap­ no medically needy program. This eligible at any time in such month. proved plans, but have not applied for change has not been made since all fami­ ♦ » * * * such assistance.

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 RULES AND REGULATIONS 33381

(ii) Persons in a medical or intermedi­ n of the act for the month of August the covered categorically needy groups. ate care facility who, if they left such 1972, and Exception: Coverage of “essential” facility would be eligible for financial (ii) Who, except for the increase in spouses of recipients of OAA, AB, APTD, assistance under another of the State’s monthly insurance benefits under title or AABD does not require coverage of approved plans. This includes persons II resulting from enactment of Public essential spouses of nonmoney payment who have enough income to meet their Law 92-336, would have been eligible for recipients, either categorically needy or personal needs while in the facility, but financial assistance for the current medically needy. not enough to meet their needs outside month. Under this requirement: (6) Specify all conditions of eligi­ the facility according to the appropriate (A ) An individual qualifies as receiv­ bility that must be met by members of State plan. Children may be included in ing or eligible for financial assistance for all optional groups included in the plan. this group if they would meet all condi­ August 1972 if, with respect to such (7) If the plan includes groups of in­ tions of eligibility under the State’s month: dividuals for whose medical care and AFDC plan if outside the facility. (1) He was receiving financial assist­ services Federal financial participation (iii) Persons who would be eligible for ance; or is not available, specify such groups, and provide that the State agency will es­ fin an c ia l assistance under another State (2) He met all conditions of eligibility public assistance plan, except that the for financial assistance under titles I, tablish methods for identifying the ex­ State plan imposes eligibility conditions IV-A, X, XIV, or XVI as in effect in Au­ penditures for medical care and services more stringent than, or in addition to, gust 1972 but had not applied, provided and administration in which Federal those required under the Social Security the State title X IX plan included such financial participation may not be Act. For example, persons who are needy individuals as categorically needy in Au­ claimed (see para, (d )(1 ) of this and 18 years of age or older and perma­ gust 1972; or section). nently and totally disabled under the (3) He was in a medical facility or in­ •***♦* Federal definition of permanent and termediate care facility, and, had he left, (d) Federal financial participation— total disability, but who are excluded would have been eligible for financial as­ (1) Administrative costs. Effective Octo­ from APTD under the State’s more re­ sistance, provided the State title X IX ber 30, 1972, Federal financial participa­ stricted definition of disability; or per­ plan included such individuals as cate­ tion in the administrative costs of pro­ sons who would be eligible for AFDC if gorically needy in August 1972. viding medical care and services is limited the State’s program covered families (B) An individual is considered as to such costs for persons covered under with children deprived of parental sup­ though he were eligible for financial as­ the plan, in the cost of whose medical port or care to the full extent permitted sistance for the current month (after care and services the Federal Govern­ under title IV -A of the act, including August 1972 and prior to July 1, 1975) if ment shares. AFDC for families with unemployed with respect to such month, except for (2) Medical assistance.—Federal finan­ fathers. the increase in monthly insurance bene­ cial participation is available, pursuant (iv) All individuals under 21 who fits under title n resulting from enact­ to part 250 of this chapter, in payments qualify on the basis of financial eligibil­ ment of Public Law 92-336: for medical care and services provided ity, but do not qualify as dependent chil­ (1) He would meet all conditions of under the State plan to any financially dren under a State’s AFDC plan; or eligibility for financial assistance (how­ eligible individual who is: groups of such individuals if based on ever, he need not file an application). In (i) Under the age of 21 (or under age reasonable classifications. Children in such case he is eligible under the cur­ 22 and receiving inpatient psychiatric foster homes or private institutions for rent title X IX plan to the same extent hospital services pursuant to § 249.10(b) whom public agencies are assuming as individuals who are receiving financial (16) of this chapter) ; or financial responsibility, in whole or in assistance; or (ii) A parent or other-caretaker rela­ part, constitute a reasonable classifica­ (2) He is in a medical or intermediate tive specified in section 406(a) (1) of the tion. The additional inclusion of children care facility -and, if he left, would be -act (see § 233.90(c) (1) (v) (a) of this placed in foster homes or private insti­ eligible for financial assistance, provided chapter) with whom a child under the tutions by private, nonprofit agencies the State title X IX plan as then in effect age of 21 is living, if such relative is would also be considered reasonable. Ef­ includes such individuals as categorically eligible or would, except that the child fective July 1,1973, individuals under age needy. In such case he is considered as is not regularly attending school or a 21 who are in intermediate care facilities, though he were categorically needy and course of vocational training, and except including institutions for the mentally is eligible under the title X IX plan to the for need, be eligible to receive payments retarded, or in psychiatric hospitals, also same extent as other categorically needy within the scope of Federal financial par­ constitute a reasonable classification. individuals in such a facility. Countable ticipation under title IV -A of the act; (v) Caretaker relatives enumerated in income for categorically needy individ­ only one such parent or other caretaker section 406(a) (1) of the Act who have in uals in such a facility does not include relative, plus the spouse of such parent their care one or more children under the amount specified as a pass-along in (who meets the conditions specified in 21 who, except for age or school attend­ sections 306 of Pub. L. 92-603 and 1007 of section 406(b)(1) of the act (see ance requirements, would be dependent Pub. L. 91-172. § 237.50(b) (3) (4) of this chapter)), children under the State’s AFDC plan. (4) Effective January 1, 1974, provide are within the scope of Federal financial (vi) Individuals who would be eligible that any family that was receiving as-' participation under title IV -A of the for financial assistance if their work- sistance under the State’s plan under title act; or related child care costs were paid out of IV -A in at least 3 of the 6 months im­ (iii) 65 years of age or older; or earnings rather than as a service ex­ mediately preceding the month in which (iv) Blind; or penditure by the agency, provided the such family became ineligible for such (v) 18 years of age or older and per­ State plan for financial assistance other­ assistance because of increased income manently and totally disabled; or wise recognizes child care costs in deter­ from employment, will continue to be (vi) The spouse of a recipient of OAA, mining the amount of the payment. eligible for medical assistance to the AB, APTD, or AABD who is considered “ an essential person” (see § 248.11) ; (3) Provide that medical assistance, to same extent and under the same condi­ the same extent and under the same tions as it is furnished to the categori­ but excluding any such care or services conditions as it is furnished to the cate­ cally needy under the current title X IX provided to any individual who is an gorically needy, will also be furnished, plan, for a period of 4 calendar months inmate of a public institution (except as for any month after August 1972 and beginning with the month in which such a patient in a medical institution or a prior to July 1,1975, to any individual: family became ineligible for assistance resident in an intermediate care facil­ (i) Who, for the month of August under title IV -A because of increased ity) , or who is under age 65 and a patient 1972, was receiving or eligible for finan­ earnings, as long as a member of the in an institution for tuberculosis or men­ cial assistance under the State’s plan family is employed. tal diseases (see exception in paragraph approved under title I, IV-A, X, XIV, or (5) Specify, if the plan includes the (d) (2) (i) of this section for individuals XVI of the act and who was also entitled medically needy, that it covers all medi- under age 22). See § 248.60. to monthly insurance benefits under title - cally needy groups that correspond to

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 33382 RULES AND REGULATIONS

3. Section 248.21 is amended, as setfor such dependents, plus the individ­ (i) In the case of any State, the ap­ forth below, by revising paragraph (a ); ual’s income level for maintenance in a plicable income levels with respect to adding a new paragraph (b ); and re­ long-term care facility, is aplicable; and periods after December 31, 1969, are designating paragraph (b) as (c ), adding (D) Resources which may be held133 Y3 percent of the amounts specified in thereto a new paragraph (c) (2), and re­ must, as a minimum, be at the most paragraph (c) (3) (ii). Any total yearly designating paragraphs (c) (2) and (3) liberal level used in any money pay­ income levels established by applying the thereof as (3) and (4). ment program in the State on or after above percentage which are not multi­ § 248.21 Financial eligibility— medical January 1, 1966, and the amount of ples of $100 shall be rounded to the next assistance programs. liquid assets which may be held must higher multiple of $100. Federal finan­ increase with an increase in the number cial participation is available for a per­ (a) State plan requirements.—A State of individuals in the family. There must son whose annual income exceeds this plan under title X IX of the Social Secu­ be separate levels established for level to the extent that medical expenses rity Act must: resources. exceed the income excess (see para­ (1) With respect to the categorically (ii) Provide that there will be a flexible graph (c) (3) (ii) (C) ). needy: measurement of available income which (ii) The amounts to be applied in cal­ (1) Specify that the financial eligibility will be applied in the following order of culating the income levels referred to in conditions of the pertinent financial as­ priority: paragraph (c) (3) (i) are the highest sistance plan will apply; (A ) First, for maintenance, so that any amounts which would ordinarily be paid (ii) Provide for the application of in­ income in an amount at or below the 1o a family of the same size without any come first to maintenance c osts. established level will be protected for income or resources in the form of money (2) With respect to both the categori­ maintenance; payments, under the approved AFDC cally needy and, if they arc included in (B) Next, income in excess of that plan of the State, subject to the follow­ the plan, the medically ne;dy; needed for maintenance will be applied ing modifications: (i) Provide that only such income and to costs incurred for medical insurance (A ) In the case of a single individual resources as are actually available will premiums and for necessary medical or the amount of the income level st all be be considered and that inc ome and re­ remedial care recognized under State reasonably related to the amounts pay­ sources will be reasonably evaluated; law and not encompassed within the able under such plan to families consist­ (ii) Provide that financial responsibil­ State plan for medical assistance. States ing of two or more individuals who are ity of any individual for any applicant or may set reasonable limits on such med­ without income or resources. recipient of medical assi; tance will be ical services for which excess income may limited to the responsibility of spouse (B) If the amounts established under be applied; and such plan are subject to a maximum for spouse and of parenls for children (C) All of the remaining excess in­ under age 21, or blind, cr permanently family limit, the income level for fami­ come will be applied to costs of medical lies which exceed such limit will be and totally disabled; assistance included in the State plan. (iii) Specify the extent to which the determined by adding an amount for (iii) Provide that all income and re­ each member of the family to such limit. financial responsibility oi. any such rela­ sources (after all State policies, gov­ tives is taken into account. The amounts to be added shall be rea­ erning the disregard, or setting aside for sonably related to those established (3) With respect to the medically future needs, of income and resources needy, if they are included in the plan: under the plan for families which are in the State’s approved plans under titles within the maximum family limit. (i) Provide levels of income and re­ I, IV-A, X, XIV, and X V I have been sources for maintenance, in total dollar (C) In computing a family’s or indi­ applied) will be considered in establish­ vidual’s income for purposes of subdivi­ amounts, as a basis for establishing fi­ ing eligibility, and in the flexible appli­ nancial eligibility for medical assistance. sions (i) and (ii) of this subparagraph, cation of income to- medical costs not there shall be excluded any costs Under this requirement: in the State plan, and payment toward (A ) Such income levels must be com­ (whether in the form of insurance the medical assistance costs. premiums or otherwise) incurred by parable as among individuals and fami­ (iv) Provide that only such income lies of varying sizes; such family or individual for medical and resources will be considered as will (B) The income levels for mainte­ care or for any other type of remedial be “in hand” within a period, preferably care recognized under State law. nance must be, as a minimum, at the of not more than 3 months, but not in levels of the most liberal money payment excess of 6 months, ahead, including the (4) If a State furnishes medical standard used by the State, at any time month in which medical services were assistance on the basis of income levels on or after January 1,1966, as a measure rendered, for which payment would be which are higher than those specified of financial eligibility in any categorical made under the plan. in this section, the State agency must money payment program in the State, submit to the Department- of Health, or at the level for which Federal finan­ (b) Special situations.—See § 248.10 Education, and Welfare for its approval cial participation is available pursuant to (b) (3) and (4) of this chapter which income levels which are calculated on paragraph (b) of this section, whichever provides that certain individuals receiv­ the basis provided in this section, and is less. Where a State imposes any de­ ing increased social security benefits pur­ must establish procedures to assure that duction, cost sharing, enrollment fee, suant to Public Law 92-336, and certain claims for Federal financial participa­ premium, or similar charge under the families with increased earnings, are cov­ tion are limited accordingly. plan with respect to any medical assist­ ered to the same extent and under the same conditions as the categorically 4. Section 248.30(b)(1) is revised as ance furnished to an individual there­ set forth below: under, such charge may not be imposed needy. to the extent that it would reduce the (c ) ' Federal financial participation.—§ 248.30 Age. individual’s income below the most lib­ (1) Federal financial participation is ***** eral money payment standard referred to available in payments made in behalf (b) Federal financial participation.— in the preceding sentence; of categorically needy individuals. (1) Federal, financial participation is (C) A lower income level fer mainte­ (2) Federal financial participation is available in medical assistance provided nance must be used for individuals not available in payments made in behalf to otherwise eligible persons who were, living in their own homes but receiving of the individuals and families described for any portion of the month in which care in nursing homes, institutions for in § 248.10(b) (3) and (4) of this they received medical care or services, tuberculosis or mental diseases or other ter. under 21 years of age (or under 22 years medical or intermediate care facilities (3) Payments in behalf of medically of age and receiving inpatient psychiatric providing long-term care. This lower in­ needy individuals are subject to Federal hospital services pursuant to § 249.10(b) come level must be reasonable in amount financial participation only to the extent (16) of this chapter), or 65 years of age for clothing and personal needs for such that they are made for a member of a or over, or 18 years of age or over and individuals. When such an individual’s family the annual income of which is permanently and totally disabled. There home is maintained for a spouse or other within the income levels established in is no Federal requirement as to age for dependents, the appropriate income level the following: blind persons.

FEDERAL REGISTER, VOL. 38, NO. 231— M O N D AY, DECEMBER 3, 1973 RULES AND REGULATIONS 33383

5. Section 248.60(a) (1), (2), and (3) institution until he is unconditionally re­ (2) Where a claim for payment for (iv) is revised as set forth below: leased or, if earlier, the date such indi­ services has been filed timely for title vidual attains age 22. X V H I purposes with the Social Security § 248.60 Institutional status. * * * * * Administration, an intermediary or a (a) Federal financial participation.— carrier, Federal financial participation (1) Federal financial participation under is available in payments for such serv­ title XIX of the Social Security Act is PART 249— SERVICES AND '’AYMENT IN ices made by the title X IX agency after not available in medical assistance for MEDICAL ASSISTANCE PROGRAMS the 24-month period provided they are any individual who is an inmate of a pub­ 6. Section 249.81 is revised as follows: made within 6 months after the month lic institution except as a patient in a in which the title^ X IX agency or the medical institution or as a resident in an § 249.81 Time limitations for Federal vendor receivés^notice regarding the financial participation in medical claim. However, for a claim filed after intermediate care facility. assistance payments. (2) Federal financial participation March 1968, Federal financial participa­ under title X IX of the Social Security Vendor payments for medical care and tion will be available, notwithstanding Act is not available in medical assistance services are eligible for Federal financial the preceding sentence, if actual payment for any individual who has not attained participation for the month in which is made no later than 3 months following 65 years of age and who is a patient in they are paid, regardless of the eligibility the publication of this regulation. an institution for tuberculosis or mental status of the individual in the month of (Section 1102, 49 Stat. 647 (42 U.S.C. 1302) ) payment, provided: diseases, except for an individual under Effective date. Except as otherwise age 22 who is receiving inpatient psy­ (a) He was found eligible for medical assistance for the month during which specified, these regulations shall become chiatric hospital services pursuant to effective on December 3, 1973. § 249.10(b) (16) of this chapter. the medical care and services were ren­ (3) For purposes of this paragraph: dered; (Catalog of Federal Domestic Assistance Pro­ g ra m N o . 13.714, M e d ic a l A ssistan ce P r o ­ * * * * * (b) He received such medical care and services in or after the third month be­ g ra m .) (iv) An individual on conditional re­fore the month in which application was Dated: October 30, 1973. lease or convalescent leave from an insti­ made; and J a m e s S. D w i g h t , Jr., tution for mental diseases is not consid­ (c) Not more than 24 months have elapsed since the month of the latest Administrator, Social and ered to be a patient in such institution Rehabilitation Service. except that such an individual under age services for which the particular pay­ ment is being made with' respect to the Approved: November 23, 1973. 22 who was previously receiving inpa­ individual, except that: tient psychiatric hospital services pursu­ C a s p a r W . W e i n b e r g e r , (1) This time limitation does not ap­ Secretary. ant to § 249.10(b) (16) of this chapter ply with respect to retroactive adjust­ may be considered to be a patient in such ment payments; [FR Doc.73-25341 Filed 11-30-73;8:45 am ]

FEDERAL REGISTER. YOU 38, NO. 231— MONDAY« DECEMBER 3, 1973

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