SATURDAY, NOVEMBER 13, 1971

WASHINGTON, D.C.

Volume 36 ■ Number 220

Pages 21747-21799 PART I

(Part II begins on page 21777) (Part III begins on page 21787)

HIGHLIGHTS OF THIS ISSUE This listing does not affect the legal status of any document published in this issue. Detailed table of contents appears inside.

ECONOMIC STABILIZATION— Cost of Living Council, Pay Board, and Price Commission imple­ mentation of President’s economic stabilization program (5 documents)...... 21788

ECONOMIC STABILIZATION— OEP rule on exemp­ tion from normal rule making procedures, and supplementary guidelines. (2. documents)_____. 21761

FAIR LABOR STANDARDS— Labor Dept, revised interpretations regarding maximum hours for certain employees of motor carriers______21778

UPLAND COTTON— USDA amendments on acre­ age allotments and set aside percentages; effec­ tive 11—11—71 ______21751

EQUINE ENCEPHALOMYELITIS— USDA releases Mississippi from quarantine______21755

ENVIRONMENT— NASA policy guidelines con­ cerning agency activities and impact statements.. 21753

COAL MINE SAFETY— Interior Dept, misceliane- ous amendments...... 21756

EQUAL EMPLOYMENT OPPORTUNITY— Interior Dept, regulations on procedures for imposition of sanctions; effective 11-13 -71 ...... 21756

STABILIZATION OF AIR TRANSPORTATION CHARGES— CAB notice for all U.S. and foreign air carriers...... 21766 Current White House Releases

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AGRICULTURAL STABILIZATION Notices LABOR DEPARTMENT AND CONSERVATION Secretary of the Treasury; delega­ tion of authority concerning im­ See Wage and Hour Division. SERVICE plementation of stabilization of Rules and Regulations prices, rents, wages, and sal­ LAND MANAGEMENT BUREAU Upland cotton; acreage allot­ aries ______21798 Notices ments and set aside percentages. 21751 EMERGENCY PREPAREDNESS Filing of plats of survey : AGRICULTURE DEPARTMENT OFFICE Missouri______;______. 21764 See Agricultural Stabilization and W isconsin______21764 Conservation Service; Animal Rules and Regulations and Plant Health Service; Con­ Economic stabilization: MARITIME ADMINISTRATION sumer and Marketing Service; Exemption from normal rule Notices Packers and Stockyards Admin­ making procedures______21761 istration. Supplementary guidance for ap­ American President Lines, Ltd.; ANIMAL AND PLANT HEALTH plication ______21761 notice of application. ^______21764 SERVICE FEDERAL AVIATION MINES BUREAU Rules and Regulations ADMINISTRATION Rules and Regulations Equine encephalomyelitis; release Rules and Regulations of Mississippi from quarantine. 21755 Coal mine safety; standards; Airworthiness directives; Bell heli­ correction______21756 CIVIL AERONAUTICS BOARD copters ______21752 Notices Proposed Rule Making NATIONAL AERONAUTICS AND Hearings, etc.: Transition area; proposed altera­ SPACE ADMINISTRATION All United States air carriers tion ___ 21763 and foreign air carriers____21766 Rules and Regulations Eastern Air Lines, Inc______21765 FEDERAL POWER COMMISSION Environment; quality and control. 21753 Servicio Aereo de Honduras, Notices S.A. (SAH SA)______21766 Cities of Lafayette and Plaque- PACKERS AND STOCKYARDS CIVIL SERVICE COMMISSION mine, La., et al.; order accepting ADMINISTRATION complaint and prescribing hear­ Notices Notices ing procedures______21767 Interior Department: Walkerton Livestock Sales, Inc., Grant of authority to make et al.; proposed posting of FEDERAL RESERVE SYSTEM stockyards ______.*______21764 noncareer executive assign­ Notices ment _____;______. . . 21767 Revocation of authority to make American Holding Corporation of PAY BOARD New Jersey; order approving noncareer executive assign­ Rul es and Regulations ment ______21767 action to become a bank holding company ______21768 Stabilization of wages and sal­ COAST GUARD Commerce Bancshares, Inc.; order aries ------21790 Rules and Regulations approving acquisition of bank stock by bank holding com­ PRICE COMMISSION Mississippi River below Baton pany ------21769 Rouge, La.; anchorage regula­ Connecticut Bank and Trust Co.; Rules and Regulations tions______21756 order approving application for Price and rent stabilization______21792 Proposed Rule Making merger of banks______21769 Notices Neuse and Trent Rivers, N.C.; Huron County Banking Co.; order drawbridge regulations______21763 approving application for mer­ Secretary of the Treasury; delega­ Notices g e r------21769 tion of authority concerning im­ plementation of stabilization of San Francisco Bay; security zone. 21765 INTERIOR DEPARTMENT prices and rents______21798 COMMERCE DEPARTMENT See also Land Management Bu­ SMALL BUSINESS See Maritime Administration. reau; Mines Bureau. Rules and Regulations ADMINISTRATION CONSUMER AND MARKETING Notices SERVICE Equal employment opportunity; procedures for imposition of Manager, Disaster Branch. Office, Rules and Regulations sanctions ______21756 Philadelphia, Disaster Branch Handling limitations: Office; delegation of authority. 21770 Grapefruit: INTERSTATE COMMERCE Grown in Indian River Dis­ COMMISSION TRANSPORTATION DEPARTMENT trict in Florida. ______21751 Notices Grown in Interior District in See Coast Guard; Federal Aviation Florida — ______------21752 Assignment of hearings______21770 Administration. unions grown in California and Fourth section applications for Arizona------[■+______21752 re lie f______21771 WAGE AND HOUR DIVISION Louisville and Nashville Railroad COST OF LIVING COUNCIL Co., and Birmingham Southern Rules and Regulations Jules and Regulations Railroad Co.; rerouting or di­ Fair labor standards; revised in­ version of traffic______.______21771 terpretations regarding maxi­ werage, exemptions and classifi­ Motor carrier temporary authority mum hours for certain em­ cation of economic units______21788 applications______21771 ployees of motor carriers______21778 21749 21750 CONTENTS

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. 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, 1971, and specifies how they are affected.

6 CFR 1 4 C FR 32A CFR 101___.. 21788 39 ______- — ______21752 OEP (Ch. I ) : 201____ 21790 1204______21753 ES Reg. 1______21761 21792 Circ. 26______21761 300____ P roposed R u les: .. 7 CFR 71______- ______21763 33 CFR 722. 21751 29 CFR 110__—______—— ______21756 910. 21751 21778 P roposed R u l e s : 21752 782___— 912 117______- ______21763 21752 913. 30 CFR 9 CFR 75______21756 43 CFR 75_____ 21755 4 21756 21751 Rules and Regulations

* Running bales Chapter IX— Consumer and Market­ Title 7— AGRICULTURE (1) Estimated domestic con­ ing Service (Marketing Agreements Chapter VII— Agricultural Stabiliza­ sumption, 1972-73 marketing year ------8, 000, 000 and Orders; Fruits, Vegetables, tion and Conservation Service (Ag­ (2) Estimated exports, 1972-73 Nuts), Department of Agriculture ricultural Adjustment), Department marketing year.______3, 300, 000 of Agriculture (3) Allowance for market expan­ [Lemon Reg. 507] sion (5 percent of sum of (1) SUBCHAPTER B— FARM MARKETING QUOTAS- and ( 2 ) ) ------565,000 PART 910— LEMONS GROWN IN AND ACREAGE ALLOTMENTS (4) Adjustments to assure ade­ CALIFORNIA AND ARIZONA quate stocks------1,084,000 PART 722— COTTON T o t a l------—.„ „ „ I ______12, 949, 000 Limitation of Handling (5) 50 percent of the average Subpart— 1972 Crop of Upland Cot­ offtake for the preceding 3 § 910.807 Lemon Regulation 507. ton; Base Acreage Allotments and marketing years (1969, 1970, (a) Findings. (1) Pursuant to the and estimated 1971)______5, 549, 000 National Production Goal marketing agreement, as amended, and Sections 722.463 to 722.465 are issued § 722.464 National base acreage allot­ Order No. 910, as amended (7 CFR Part pursuant to the Agricultural Adjustment ment for the 1972 crop o f cotton. 910; 36 F.R. 9061), regulating the han­ Act of 1938, as amended (7 U.S.C. 1281 The national base acreage allotment dling of lemons grown in California and et seq.) (referred to as the “act”), with for the 1972 crop of cotton shall be Arizona, effective under the applicable respect to the 1972 crop of upland cotton 11,500,000 acres, determined in accord­ provisions of the Agricultural Marketing (referred to as “cotton” ). The purpose ance with section 350(a) of the act. Agreement Act of 1937, as amended (7 of these provisions is to (1) proclaim a U.S.C. 601-674), and upon the basis of national production goal; (2) establish a § 722:465 Apportionment of national the recommendations and information national base acreage allotment; and (3) base acreage allotment to the States. submitted by the Lemon Administrative apportion the national base acreage al­ The national base acreage allotment Committee, established under the said lotment to States. Section 722.466 is of 11,500,000 acres is apportioned to the amended marketing agreement and or­ issued pursuant to the Agricultural Act States in accordance with section 350(b) der, and upon other available informa­ of 1949, as amended (7 U.S.C. 1421 et of the act as follows: tion, it is hereby found that the limita­ tion of handling of such lemons, as here­ seq.). This section establishes the crop­ State allotment land set-aside percentage. The latest States: (acres) inafter provided, will tend to effectuate available statistics of the Federal Gov­ A la b a m a ______------677,414 the declared policy of the act. ernment have been used in making A rizo n a______238, 783 (2) It is hereby further found that it determinations under these provisions. Arkansas ____ _ ------955,002 is impracticable and contrary to the pub­ California ____ ------531,264 lic interest to give preliminary notice, en­ Notice that the Secretary was prepar­ Florida ______------22, 154 gage in public rulemaking procedure, and ing to make determinations with respect Georgia ______— — 582,506 to these provisions was published in the Illinois ______------2,068 postpone the effective date of this section Federal R egister on September 14, 1971 Kansas ______------1 8 until 30 days after publication hereof (36 F.R. 18412), in accordance with 5 K e n t u c k y ___ 4,922 " in the F ederal R eg ister (5 U.S.C. 553) U.S.C. 553. The views and recommenda­ Louisiana ____ ------400,355 because the time intervening between the Mississippi ___ —— 1,099,926 date when information upon which this tions received in response to such notice M isso u ri______have been duly considered. ------.256, 925 section is based became available and Nevada ______------2,530 the time when this section must become In order that State and county ASC New M exico___ ------123,711 effective in order to effectuate the de­ committees may complete the necessary North Carolina------312,235 work for issuing farm allotment notices Oklahoma ____ ------534,493 clared policy of the act is insufficient, in a timely manner for cotton producers South Carolina. ------477,239 and a reasonable time is permitted, un­ to complete their plans for the 1972 crop Tennessee______------381,846 der the circumstances, for preparation Texas ______------4,885,568 for such effective time; and good cause of cotton, it is essential that these pro­ Virginia ______visions be made effective as soon as possi­ ------11,051 exists for making the provisions hereof ble. Accordingly, §§ 722.463 to 722.466 § 722.466 Cropland set-aside percentage. effective as hereinafter set forth. The committee held an open meeting dining shall be effective upon filing this docu­ The cropland set-aside percentage for ment with the Director, Office of the the current week, after giving due notice the 1972 crop of cotton shall be 20 per­ thereof, to consider supply and market Federal Register. The material previ­ cent determined in accordance with sec­ ously appearing in these sections under conditions for lemons and the need for tion 103(e)(4)(A) of the Agricultural regulation; interested persons were a f­ centerhead “ 1971 Crop of Upland Cotton; Act of 1949, as amended. Base Acreage Allotments” remains in full forded an opportunity to submit infor­ orce and effect as to the crop to which it (Secs. 301, 342a, 350, 103, 52 Stat. 38, as mation and views at this meeting; the was applicable. amended, 84 Stat. 1358; 63 Stat. 1051; 7 U S C recommendation and supporting infor­ 1301,1342a,1350,1421) mation for regulation during the period 722.463 National production goal for specified herein were promptly submit­ the 1972 crop o f cotton. Effective date: Date of filing this docu­ ment with the Director, Office of the ted to the Department after such meet­ ing was held; the provisions of this sec­ iqt? 6 national Production goal for the Fédéral Register. «72 crop of cotton is hereby proclaimed tion, including its effective time, are •° hi the amount of 12,949,000 stand- Signed at Washington, D.C., on identical with the aforesaid recommen­ m bales of cotton determined in aocord- November 10,1971. dation of the committee, and information concerning such provisions and effective <56 with the formula prescribed under J. P h i l C a m p b e l l , ®®bti<>n 342a of the act, based on the Acting Secretary. time has been disseminated among han­ ««lowing data: dlers of such lemons; it is necessary, in [F R Doc.71-16631 Filed 11-11-71;9:48 am] order to effectuate the declared policy

FEDERAL REGISTER, V O L 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 21752 RULES AND REGULATIONS of the act, to make this section effective submit information and views at this tween the date when information upon during the period herein specified; and meeting; the recommendation and sup­ which this section is based became avail­ compliance with this section will not re­ porting information for regulation dur­ able and the time when this section must quire any special preparation on the ing the period specified herein were become effective in order to effectuate part of persons subject hereto which promptly submitted to the Department the declared policy of the act is insuffi­ cannot be completed on or before the after such meeting was held; the pro­ cient, and a reasonable time is permitted, effective date hereof. Such committee visions of this section, including* its under the circumstances, for prepara­ meeting was held on November 9, 1971. effective time; are identical with the tion for such effective time; and good (b) Order. (1) The quantity of lemonsaforesaid recommendation of the com­ cause exists for making the provisions grown in California and Arizona which mittee, and information concerning such hereof effective as hereinafter set forth. may be handled during the period No­ provisions and effective time has been The committee held an open meeting vember 14 through November 20, 1971, disseminated among handlers of such during the current week, after giving due is hereby fixed at 175,000 cartons. Indian River grapefruit; it is necessary, notice thereof, to consider supply and in order to effectuate the declared policy market conditions for Interior grape­ (2) As used in this section, “ handled” of the act, to make this section effective fruit, and the need for regulation; in­ and “carton (s) ” have the same meaning during the period herein specified; and terested persons were afforded an op­ as when used in the said amended mar­ compliance with this section will not re­ portunity to submit information and keting agreement and order. quire any special preparation on the part views at this meeting; the recommenda­ (Secs. 1-19, 48 Stat. 31, as amended; 7 U.S.C. of persons subject hereto which cannot tion and supporting information for reg­ 601-674) be completed on or before the effective ulation during the period specified here­ Dated: November 11,1971. date hereof. Such committee meeting was in were promptly submitted to the held on November 11, 1971. Department after such meeting was F loyd F. H edltjnd, (b) Order. (1) The quantity of grape­ held; the provisions of this section, in­ Director, Fruit and Vegetable fruit grown in the Indian River District cluding its effective time, are identical Division, Consumer arid Mar­ which may be handled during the period with the aforesaid recommendation of keting Service. November 15, 1971 through November the committee; and information con­ [FR Doc.71-16728 Filed 11-12-71; 11:48 am] 21, 1971, is hereby fixed at 145,000 stand­ cerning such provisions and effective ard packed boxes. time has been disseminated among han­ [Grapefruit Reg. 81] (2) As used in this section, “handled,”dlers of such Interior grapefruit; it is “Indian River District,” “grapefruit,” necessary, in order to effectuate the de­ PART 912— GRAPEFRUIT GROWN IN and “standard packed box” have the clared policy of the act, to make this THE INDIAN RIVER DISTRICT IN same meaning as when used in said section effective during the period herein FLORIDA amended marketing agreement and specified; and compliance with this sec­ order. tion will not require any special prep­ Limitation of Handling (Secs. 1-19, 48 Stat. 31, as amended; 7 U.S.C. aration on the part of persons subject § 912.381 Grapefruit Regulation 81. 601-674) hereto which cannot be completed on or before the effective date hereof. Such (a) Findings A 1) Pursuant to the mar­ Dated: November 12,1971. committee meeting was held on Novem­ keting agreement, as amended, and Order P aul A. N icholson, ber 11, 1971. No. 912, as amended (7 CFR Part 912), Deputy Director, Fruit and Veg­ (b) Order. (1) The quantity of grape­ regulating the .handling of grapefruit fruit grown in the Interior District which grown in the Indian River District in etable Division, Consumer and Marketing Service. may be handled during the period No­ Florida, effective under the applicable vember 15, 1971, through November 21, [FR Doc.71-16731 Filed 11-12-71; 11:48 am] provisions of the Agricultural Marketing 1971, is hereby fixed at 225,000 stand­ Agreement Act of 1937, as amended (7 ard packed boxes. U.S.C. 601-674), and upon the basis of [Grapefruit Reg. 51] the recommendations and information (2) As used in this section, “han­ submitted by the Indian River Grape­ PART 913— GRAPEFRUIT GROWN IN dled,” “Interior District,” “ grapefruit,” fruit Committee, established under the THE INTERIOR DISTRICT IN FLORIDA and “standard packed box” have the same meaning as when used in said mar­ said amended marketing agreement and Limitation of Handling order, and upon other available informa­ keting agreement and order. tion, it. is hereby found that the limita­ § 913.351 Grapefruit Regulation 51.' (Secs. 1-19, 48 Stat. 31, as amended; 7 U.S.C. tion of handling of such grapefruit, as (a) Findings. (1) Pursuant to the 601-674) hereinafter provided, will tend to effec­ marketing agreement, as amended, and Dated r November 12,1971. tuate the declared policy of the act. Order No. 913, as amended (7 CFR Part P aul A. N icholson, (2) It is hereby further found that it913), regulating the handling of grape­ Deputy Director, Fruit and Veg­ is impracticable 'and contrary to the fruit grown in the Interior District in etable Division, Consumer and public interest to give preliminary notice, Florida, effective under the applicable Marketing Service. engage in public rule-making procedure, provisions of the Agricultural Market­ [FR Doc.71-16729 Filed 11-12-71; 11:48 am] and postpone the effective date of this ing Agreement Act of 1937, as amended section until 30 days after publication (7 U.S.C. 601-674), and upon the basis hereof in the F ederal R egister (5 U.S.C. of the recommendations and informa­ 553) because the time intervening be­ tion submitted by the Interior Grape­ Title 14— AERONAUTICS tween the date when information upon fruit Marketing Committee, established which this section is based became avail­ under said marketing agreement and or­ AND SPACE able and the time when this section must der, and upon other available informa­ Chapter I— Federal Aviation Adminis­ become effective in order to effectuate tion, it is hereby found that the tration, Department of Transportation the declared policy of the act is insuffi­ limitation of handling of such grape­ cient, and a reasonable time is permitted, [Airworthiness Docket No. 71-SW-63, fruit as hereinafter provided, will tend Arndt. 39-1330] under the circumstances, for preparation to effectuate the declared policy of the for such effective time; and good cause act. PART 39— AIRWORTHINESS exists for making the provisions hereof (2) It is hereby further found that DIRECTIVES effective as hereinafter set forth. The it is impracticable and contrary to the committee held an open meeting during public interest to give preliminary notice, Bell Models 206A and 206A-1 the current week, after giving due notice engage in public rule-making procedure, Helicopters thereof, to consider supply and market and postpone tfie effective date of this Amendment 39-1190 (36 F.R. 6826, AD conditions for Indian River grapefruit, section until 30 days after publication agains and the need for regulation; interested hereof in the F ederal R egister (5 U.S.C. 71-8-3), imposes a limitation persons were afforded an opportunity to 553) because the time intervening be­ flight into falling or blowihg snow on a

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 RULES AND REGULATIONS 21753

Bell Model 206A-1 helicopters and on sections of Bell Service Instruction No. 206- (c) Use organized, systematic, timely, Bell Model 206A helicopters equipped 89, revised October 25, 1971, or later FAA ap­ and effective approaches to meet NASA’s with Particle Separator Kit, Self Purg­ proved revision. Incorporate revised pages A, responsibilities in environmental matters. B, and D, approved and dated October 18, ing, P/N 206-706-201-1 or P/N 206-706- 1971, into the Model 206A Flight Manual, (d) Pursue appropriate research and 200-1, certificated in all categories. After approved and dated October 20, 1966, or later development which may identify and de­ issuing Amendment 39-1190, further re­ FAA approved reissues. Incorporate revised velop the potential for application of design, testing, and evaluation revealed pages 1, 2, and 5, approved and dated Octo­ technologies useful in the protection and that helicopters of these types could be ber 18, 1971, into the Model 206A Flight Man­ enhancement of environmental quality. expected to operate safely during flight ual Supplement titled “Snow Particle Sepa­ (e) Cooperate as fully as possible with into snow providing certain operating rator—Engine Air Induction System”, ap­ State, local, and regional authorities in limitations are observed in conjunction proved and dated July 23,1970. Alternate r .eans of compliance or equiva­ the pursuit of environmental protection with installation of a modified engine lent replacement parts may be acceptable if and enhancement objectives wherever induction system particle separator. approved by the Chief, Engineering and Man­ NASA facilities are located. Therefore, AD 71-8-3 is being amended ufacturing. Branch, Flight Standards Divi­ ( f ) Instill an environmental awareness to recognize this capability. sion, Southwest Region, Federal Aviation Ad­ in all NASA employees and contractors. ministration, Fort Worth, Tex. Since this amendment to AD 71-8-3 § 1204.1102 Implementation. provides a means of relief of a restric­ Amendment 39-1190 became effective April tion and imposes no additional burden 12,1971. (a) The Associate Administrator, This amendment becomes effective Novem­ NASA, or his designee, shall: on any person, notice and public proce­ ber 18, 1971. dure hereon are unnecessary and the (1) Coordinate the formulation and amendment may be made effective in (Secs. 3 1 3 (a), 601, 603, Federal Aviation Act revision of NASA policies and positions less than 30 days. of 1958, 49 U.S.C. 1354(a), 1421, 1423; sec. on matters pertaining to environmental 6(c), Department of Transportation Act, protection and enhancement; and In consideration of the foregoing, and 49 U.S.C. 1655(C)) pursuant to the authority delegated to (2) In cooperation with the Assistant me by the Administrator (31 P.R. 13697), Issued in Fort Worth, Tex., on Novem­ Administrator for DOD and Interagency § 39.13 of Part 39 of the Federal Aviation ber 4, 1971. Affairs, represent NASA in working with Regulatipns, Amendment 39-1190 (36 R . V. R e y n o l d s , other governmental agencies and inter­ F.R. 6826), AD 71-8-3, is amended to Acting Director, Southwest Region. agency organizations in the formulation, revision, and uniform understanding and provide alternate limitations and config­ [FR Doc.71-16604 Filed 11-12-71;8:46 am] urations eligible for these helicopters, application of Government-wide policies and to limit the applicability of this di­ relating to the environment. rective to those helicopters requiring Chapter V— National Aeronautics and (b) Consistent with Government-wide modification to be eligible for the alter­ Space Administration and NASA policies and positions devel­ nate limits. oped in accordance with paragraph (a) PART 1204— ADMINISTRATIVE of this § 1204.1102, the Assistant Admin­ Bell: Applies to Model 206A -l helicopters, istrator for Administration or his des­ serial numbers 39998 through 40994 and AUTHORITY AND POLICY to all Model 206A helicopters equipped ignee shall: with Particle Separator Kit, Self Purg­ Subpart 1204.11— Environmental (1) Develop and insure the imple­ ing, P/N 206—706-201-1-1, or P/N 206-706- Quality and Control mentation of Agencywide standards and 200-1, certificated in all categories. procedures for protection and enhance­ T. New Subpart 1204.11 is added as ment of environmental quality, including Compliance required before further flight follows: in snow, but no later than 25 hours time in those necessary to insure NASA com­ service after the effective date of this air­ sec. pliance with applicable laws and worthiness directive, unless already accom­ 1204.1100 Scope. regulations; plished. 1204.1101 Policy. (2) Determine the resources needed 1. To prevent power interruption caused by 1204.1102 Implementation. by NASA to comply with applicable laws ingestion into the engine of snow or ice 1204.1103 Guidelines for the preparation of environmental statements. and regulations and to implement the which may have accumulated in the engine Agency’s policies on protection and en­ inlet during flight, crew notification of a Au t h o r ity: The provisions of this Sub- limitation against flight into snow must be hancement of environmental quality; part 1204.11 are issued pursuant to section (3) Establish and maintain appro­ accomplished as follows: 102(2) (C) of the National Environmental a. Install a permanent type placard in full Policy Act of 1969 (42 U.S.C. 4332(2) ( C )) ; priate working relationships with the view of the pilot as near-as possible to the section 2(f) of Executive Order 11514 (35 Council on Environmental Quality, En­ basic limitations placard, worded as follows: F.R. 4247, March 5, 1970); the guidelines vironmental Protection Agency, the De­ issued by the Council on Environmental partments of Health, Education, and “FLIGHT INTO FALLING OR Quality (36 F.R. 7724, April 23, 1971); and Welfare and of the Interior, and other BLOWING SNOW IS NOT the Office of Management and Budget Bulle­ PERMITTED” national, State, and local governmental tin No. 72-6 (September 14, 1971). agencies; and b. If approved placards are unavailable, (4) Acquire information for and pre­ the owner or operator may make and use a § 1204.1100 Scope. placard containing the above words. Letters pare NASA reports on environmental This Subpart 1204.11 sets forth the matters and NASA comments on other must be at least one-eighth inch in height. National Aeronautics and Space Admin­ 2. Alternatively, upon accomplishment of agency reports required by law and istration (NASA) policy guidelines con­ regulation: modifications listed below, the placard re­ cerning administering agency activities quired by paragraph 1. may be removed and (c) Officials in charge of headquarters flight operations may be conducted in falling for the protection and enhancement of offices are responsible for identifying, or blowing snow for periods not in excess of environmental quality and the prepara­ within their respective areas, all matters 90 minutes, provided flight visibility due tion of environmental statements. which may have an effect on protection to snow is not less than one-half mile. § 1204.1101 Policy. and enhancement of environmental a. For the Model 206A-1, S/N 39998 through It is NASA policy to: quality, and insuring that necessary ac­ 40994, install Particle Separator Assembly, tions are taken to meet the requirements P/N 206-062-819-5 in accordance with Bell (a) Use all practicable means, con­ of applicable laws and regulations. Pro­ Helicopter Company Drawing 206-062-800-5. sistent with NASA’s statutory authority, Incorporate revised pages A, 7, 13, 15, and gram and institutional directors are addi­ available resources, and national policy, tionally responsible for giving high 20, approved and dated October 26, 1971, into to protect and enhance the quality of the Model 206A-1 Flight Manual, approved priority in the pursuit of program objec­ and dated May 5,1969. the environment. tives to the identification, analysis, and b. For ■ Model 206À helicopters equipped (b) Provide for proper and adequate proposal of research and development Particle Separator Kit, Self Purging, attention to environmental protection which if conducted by NASA or other P/N 206-706-201-1 or P/N 206-706-200-1, and enhancement in all NASA activities, agencies may contribute to the achieve­ modify and/or replace particle separator syfe- including those performed under con­ ment of beneficial environmental tem components as indicated in applicable tract or grant. objectives.

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 21754 RULES AND REGULATIONS

(d) Each NASA Field Installation Di­quality of man’s environment is a con­ (6) Any irreversible and irretrievable rector is responsible for: tinuing responsibility of all NASA em­ commitments of resources which would (1) Implementing Agency-wide poli­ ployees arid contractors. Thus, the con­ be involved in the proposed action should cies, standards, and procedures on pro­ sideration of environmental impact must it be implemented. tection and enhancement of environ­ be a part of the formulation and defini­ (7) Where appropriate, a discussion of mental quality, and supplementing them tion of all new or revised agency activi­ problems and objections raised by other as appropriate in local circumstances. ties. In view of the variety of activities Federal, State, and local agencies and by (2) Specifically assigning responsi­ in which NASA engages, these guidelines private organizations and individuals in bilities for environmental activities un­ are necessarily flexible in their specifica­ the review process and the disposition of der the installation’s cognizance to ap­ tion of the timing of environmental as­ the issues involved. propriate subordinates, while providing sessment related to proposed actions (see In addition, pursuant to paragraph 6(e) for the coordination of all such activities. paragraph (d) of this § 1204.1103). The of the CEQ Guidelines, the attachment of (3) Establishing and maintaining ap­ important point is that the assessment a surfimary sheet as prescribed, is re­ be completed and documented as soon as propriate working relationships with na­ quired. tional, State, regional, and local gov­ definition of the activity is complete enough to permit the reasonable under­ (d) Processing environmental state­ ernmental agencies responsible for en­ ments— (1) Assessment. The Official in vironmental regulation in localities in standing of probable effects. In the case charge of each headquarters office shall which the field installation conducts its of flight programs or projects, this fre­ provide for an assessment, as required activities. quently will be as a part of program/ project definition. In the case of some by section 102(2) (C) of the National En- § 1204.1103 Guidelines for the prepara­ systems and components, however, it may vironmental Policy Act of 1969 (42 U.S.C. tion of environmental statements. be as a part of design. In the case of real 4332(2) (C) ) and paragraph 2 of the CEQ (a) Criteria. (1) The basic criteria to estate acquisitions or leases, it should be Guidelines and as discussed in paragraph be used in determining whether proposed tied to considerations of the uses which (b) of this § 1204.1103, of the environ­ legislation, projects, or activities have would be made of the property, and mental impact of each major action (as the potential to have a significant effect should be closely related to facility plan­ that term is contemplated by the National on the quality of the human environment ning and design. In the case of opera­ Environmental Policy Act and the CEQ are contained in the guidelines issued by tions, the assessment could be needed Guidelines) which he proposes or which the Council on Environmental Quality prior to acquisition of the necessary tech­ is to be taken under his programmatic or (hereafter referred to as “CEQ Guide­ nology or it could be made in planning, institutional cognizance. lines” ) and published in the F ederal in the more routine operation of facili­ (2) Documentation required. I f the R e g ister (36 F .R . 7724, April 23, 1971) ties and installations, for the use of al­ assessment indicates the need for a new and the Office of Management and ready acquired technology. In each of or revised environmental statement, it Budget Bulletin 72-6 (September 14, these cases, it m.ust be recognized that shall be prepared in accordance with 1971). NASA must allow at least 60 days from paragraph (c) of this § 1204.1103. But (2) In accordance with paragraph the issuance of the draft before a state­ when there is a substantive change in an 5(b) of the CEQ Guidelines, the statu­ ment may be issued in final form, and ongoing program or in the recognition of tory clause “major Federal actions sig­ further, NASA must allow at least 30 the environmental effects of an ongoing nificantly affecting the quality of the days from the issuance of the final state­ program (as discussed in paragraph human environment” is to be construed ment before taking action on the activity (b) (1) of this § 1204.1103) or a new ac­ with a view to the overall, cumulative proposed therein. Thus, 90 days is the tivity is to be undertaken (as discussed in impact of the action proposed (and to m inim um leadtime for actions requiring paragraph (b) (2) of this § 1204.1103) and further actions contemplated). Such ac­ the issuance of an environmental state­ the assessment indicates that no environ­ tions may be localized in their impact, ment. A continuing awareness is essen­ mental statement is necessary, then the but if there is potential that the en­ tial if NASA is to meet its obligations official responsible for the assessment vironment of a local area may be sig­ in environmental protection and en­ shall notify the Assistant Administrator nificantly affected, the statement is to hancement without unnecessarily de­ for Administration, in writing, that the be prepared. Proposed actions, the en­ ferring other program action. assessment has been conducted and that vironmental impact of which is likely (c) Content of an environmental state­either (i) no environmental statement is to be highly controversial, should be ment. Paragraph 6 of the CEQ Guidelines considered necessary, or (ii) an existing covered in all cases. presents a detailed discussion on the ex­ statement adequately covers the proposed (3) Section 101(b) of the National pected content of an environmental action. I f no environmental statement is Environmental Policy Act of 1969 (42 statement. The CEQ Guidelines in para­ considered necessary, but if the proposed U.S.C. 4331(b)) indicates the broad graph 6(a) detail seven particular items action or legislation involves the authori­ range of aspects of the environment to which should be considered in drafting ties of the Administrator of the Environ­ be surveyed in any assessment of signifi­ the environmental statement. These mental Protection Agency with respect cant effect. Significant effects on the seven items are to be regarded as the to water and air quality, solid waste, pes­ quality of the human environment in­ format of the statement; if an item is ticides, radiation, noise, etc., and if it clude both those that directly affect hu­ not applicable, a statement to that effect may be considered to come within the man beings and those that indirectly should be made. In brief, the seven items scope of section 309 or title IV of the affect human beings through effects on as prescribed in the CEQ Guidelines Clean Air Act, as amended (42 U.S.C. the environment. paragraph6(a) are: 1857 et seq.), then the proposal for the (b) NASA activities which may re­ action, or the proposed legislation, is to (1) A description of the proposed ac­ be submitted to the Assistant Adminis­ quire environmental assessments and tion. statements— (1) Activities now under­ trator for Administration for transmittal (2) The probable total impact of the when appropriate to the Environmental way. All agency activities must be evalu­ proposed action on the environment. ated for environmental impact on a con­ Protection Agency for comment under tinuing basis and assessments conducted (3) Any probable adverse environ­ paragraph 8 of the CEQ Guidelines. and statements prepared as needed. Most mental effects which cannot be avoided (3) Preparation and submission of of NASA’s activities and facilities are should the proposal be implemented. statement. I f the assessment indicates now covered by statements. Therefore, (4) Alternatives to the proposed action, that (i) a significant environmental ef­ changes in ongoing activities or discov­ including a rigorous exploration and ob­ fect may result from the proposed ac­ ery of a hitherto unrecognized environ­ jective evaluation of the alternatives and tion or proposed legislation, or (Ü)_ a mental effect stemming from ongoing their costs and effects on the environ­ proposed action is likely to be highly activities, which warrant a reassessment, ment. controversial with respect to environ­ may require a supplement to an existing (5) The relationship between the local mental effects, the official providing for statement. short-term uses of the environment and the assessment shall have prepared a (2) New activities. Awareness of the the maintenance and enhancement of seven-point environmental statement as effects which any action may have on the long-term productivity. described in paragraph (c) of this

FEDERAL REGISTER. V O L 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 RULES AND REGULATIONS 21755

§ 1204.1103, and solicit comments there­ State, and local agencies, the originating agement and Budget Bulletin No. 72-6, on from other appropriate elements of NASA official shall consider all sugges­ and paragraph 5(a) (i) of the CEQ NASA. Fifty copies of this statement and tions and revise the statement as may be Guidelines will be handled by NASA all of its attachments shall be submitted appropriate. He shall at this time com­ headquarters, under the direction of the to the Assistant Administrator for Ad­ plete the seventh item of the statement Assistant Administrator for Adminis­ ministration, in draft, together with— which is a discussion of the problems tration, through coordination with the (a) Five copies of any comments and objections raised by other Federal, Office of Legislative Affairs, Office of thereon, and State, and local agencies and by private Policy and University Affairs, and the (b) A plan for coordination with ap­ organizations and individuals and a re­ Office of General Counsel. propriate State and local agencies,» or­ port on NASA’s disposition of the issues (g) Implementing actions. NASA of­ ganization, and individuals. involved. Fifty copies of the final envi­ ficials will provide the Assistant Admin­ ronmental statement and summary sheet istrator for Administration with three This submission shall be accomplished and 15 copies of all comments received copies of any instructions which they prior to any formal review outside NASA. shall be forwarded to the Assistant Ad­ issue to implement or supplement this (4) Review of draft statement and ministrator for Administration who will subpart. plan for coordination with State and thereupon obtain any additional ap­ Effective date. The provisions of local agencies, organizations, and in­ provals which circumstances may war­ dividuals by Assistant Administrator for § 1204,1100-1204.1102 were effective Oc­ rant and officially submit the final state­ tober 13, 1970; the provisions of § 1204.- Administration. The Assistant Adminis­ ment to Council on Environmental Qual­ trator for Administration shall review (i) 1103 except paragraphs (a )(1 ), (c) (6), ity. The final statement shall accompany (7), and (8), and (f) were effective the plan for coordination with State and the proposal through the normal NASA local agencies, organization, and individ­ June 30,1971; and the provisions of para­ review process and shall be considered graphs (a )(1 ), (c) (6), (7), and (8), uals, and (ii) the draft statement and its by NASA officials in the course of their attachments and obtain additional com­ and (f ) of § 1204.1103 are effective review. October 31, 1971. ments from other elements of NASA, as (9) Public availability of environ­ appropriate, and communicate with the mental statements. Each draft and final G eorge M. Low, originating, official, indicating concur­ environmental statement prepared and Deputy Administrator. rence or recommending changes in these submitted under this subpart and the re­ [FR Doc.71-16608 Filed 11-12-71;8:46 am] documents. lated documents prescribed by law and (5) Submission of draft statement to regulation will be available- for public the Council on Environmental Quality. review and copying in the NASA Infor­ Subsequent to review and revision, if nec­ mation Center, 600 Independence Avenue Title 9— ANIMALS AND essary, of the draft, the Assistant Admin­ SW., Washington, DC 20546, and at in­ istrator for Administration shall submit formation centers at appropriate field 10 copies of the draft statement with installations and where appropriate (see ANIMAL PRODUCTS appropriate attachments to the Council Office of Management and Budget Cir­ Chapter I— Animal and Plant Health on Environmental Quality. The originat­ cular No. A-95) at State and local clear­ Service/ Department of Agriculture ing NASA official shall also be sent a inghouses, on and after the date of its copy of the draft statement as submitted submission to the Council on Environ­ SUBCHAPTER C— INTERSTATE TRANSPORTATION to the Council on Environmental Quality. mental Quality, or, in the case of any OF ANIMALS AND POULTRY (6) Review of draft statement by other statement relating to legislative pro­ national governmental agencies. Upon PART 75— COMMUNICABLE DISEASES posals, on and after the date of its sub­ IN HORSES, ASSES, MULES, AND submission of the draft statement to mission to the Congress. the Council on Environmental Quality, (10) Questions and information. Ques­ ZEBRAS and in accordance with paragraph 8 of tions relating to the need for, or scope of, Areas Quarantined the CEQ Guidelines, the Assistant Ad- environmental assessments and state­ ministator for Administration shall pro­ ments should be referred to the Assistant Pursuant to provisions of the Act of vide for solicitation of the views of other Administrator for Administration. Copies May 29, 1884, as amended, the Act of national governmental agencies having of all laws and regulations referenced in February 2, 1903, as amended, and the jurisdiction by law or special expertise this subpart have been provided to all Act of March 3, 1905, as amended (21 with any of the environmental problems NASA field installations and head­ U.S.C. 111-113, 115, 117, 120, 121, 123- associated with the proposed action. Any quarters offices by the Office of the Gen­ 126), Part 75, Title 9, Code of Federal such views shall be provided to the orig­ eral Counsel. Regulations, restricting the interstate inating official for consideration in pre­ (e) Processing environmental state­ movement of horses, asses, mules, and paring the final statement. ments originated by other governmental zebras, is hereby amended in the follow­ (7) Review of draft statement by State agencies. Requests for review and com­ ing respects: and local agencies, organizations, and ments on any environmental statement In § 75.4, paragraph (a) is amended to individuals. Upon approval by the Assist­ prepared by another governmental read: ant Administrator for Administration of agency will be directed to the Assistant § 75.4 Notice relating to existence of the plan for. State and local coordina­ Administrator for Administration for ap­ Venezuelan equine encephalomyelitis tion, the originating NASA official shall propriate action within NASA. The As­ and/or the vector of said disease, provide for solicitation of comments on sistant Administrator for Administration quarantine and conditions of inter­ the draft statement from affected State shall determine which NASA elements state movement. and local agencies concurrent with the should review the statement based on (a) Notice is hereby given that Vene­ solicitation of national agencies by the the nature of the environmental impact, Assistant Administrator for Administra­ shall solicit their comments and con­ zuelan equine encephalomyelitis, a com­ tion. Comments on the draft environ­ solidate them, obtain any additional ap­ municable disease of horses, asses, mules, mental statement may be obtained provals which may . be warranted, and and zebras, and/or the vector of said dis­ directly, through State and local clear­ return the review report with NASA’s ease, exists in the States of Louisiana inghouses (see Office of Management and comments to the originating agency. and Texas and that said States are quar­ Budget Circular No. A-95), and by no­ antined because of the existence of said (f) Processing of legislative actions. disease and/or the vector thereof. tice in the F ederal R e g ister . This notice NASA Is responsible for identifying those * * * * * should specify that replies are required of its legislative proposals, or reports on no later than 60 days from publication bills for which it is the principal agency date. concerned, that would require the prepa­ 'The functions prescribed in Part 75 of (8) Preparation and submission of ration of the environmental statements Chapter I, 9 CFR, have been transferred from final statement to Council on Environ­ the Agricultural Research Service, U.S. De­ and receipts of comments from other na­ partment of Agriculture, to the Animal and mental Quality. After conclusion of the tional, State, and local agencies. This Plant Health Service of the Department (36 review process with other national, process, discussed in the Office of Man- F.R. 20707).

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 No. 220— P t. I ---- 2 21756 RULES AND REGULATIONS

(Secs. 4-7, 23 Stat. 32, as amended, secs. 1 and Since this amendment reflects the 2, 32 Stat. 791-792, as amended, secs. 1-4, 33 Title 30— MINERAL RESOURCES change in description and imposes no Stat. 1264, 1265, as amended 21 U.S.C. 111- additional burden on any person, notice 113, 115, 117, 120, 121, 123-126; 29 P.R. 16210, Chapter I— Bureau of Mines, and public procedure thereon is unneces­ as amended) Department of the Interior sary and the amendment may be made Effective date. The foregoing amend­ SUBCHAPTER O— COAL MINE HEALTH AND effective in less than 30 days after publi­ ment shall become effective upon SAFETY cation in the F ederal R eg ist e r . issuance. PART 75— M ANDATORY SAFETY Accordingly, § 110.195(a) is amended Venezuelan equine encephalomyelitis by revising subparagraph (7) tb read as is a viral disease of horses and other STANDARDS, UNDERGROUND follows: equidae. The disease is transmitted pri­ COAL MINES § 110.195 Mississippi River below Baton marily through several species of mos­ Fire Suppression Devices and Fire- Rouge, La., including South and quitoes and may be transmitted to hu­ Southwest Passes. mans. The mosquito population acquires Resistant Hydraulic Fluids on Un­ the infection from horses which are in derground Equipment; Correction (a) * * * the incubative stage of the disease and In F.R. Doc. 71-14735, appearing on (7) Baton Rouge general anchorage. disseminates the infection to new pages 19583-19586 Of the issue for Friday, An area, 1,400 feet wide, between Mile localities. October 8, 1971, the following changes 225.8 and Mile 227.3 above Head of Passes The disease entered the United States should be made: with its west limit along the low water from Mexico and was disseminated ex­ 1. In § 75.1107-4(a) on page 19584 line. tensively in Texas. change March 30,1971 to March 30,1972. $ $ * $ $ The State of Texas was quarantined 2. In § 75.1107-5(a)(2) on page 19584 (Sec. 7, 38 Stat. 1053, as amended, sec. because of Venezuelan equine encepha­ change March 30, 1971 to March 30, 6(g) (A ), 80 Stat. 937; 33 TJ.S.C. 471, 49 lomyelitis, effective July 13, 1971 (36 F.R. 1972 in both sentences. U.S.C. 1655(g) (1) (A ); 49 CFR 1.46(c) (1), 33 13202); the States of Arkansas, Louisi­ 3. In § 75.1107-5 (c) on page 19584 the CFR 1.05-1 (c) (1) (36 F.R. 19160)) ana, New Mexico, and Oklahoma were word “ protective” should read “pro­ Effective date. This amendment shall quarantined because of the existence of tected.” become effective on November 15, 1971. vectors of the disease, effective July 19, 4. In § 75.1107-5 (e) on page 19584 de­ Dated: November 10,1971. 1971 (36 F.R. 13677)and the State of lete the comma and the words “ test Mississippi was quarantined because of arrangement.” W. M. B e n k e r t , the existence of vectors of the disease, 5. In § 75.1107-8 (d) on page 19585 de­ Rear Admiral, U.S. Coast Guard, effective August 2, 1971 (36 F.R. 14631). lete the comma after the word “satu­ Chief, Office of Marine En­ The States of Arkansas, New Mexico, rated” in parenthesis, delete the word vironment and Systems. and Oklahoma were released from quar­ “ minimum” .in that part of the first sen­ [FR Doc.71-16613 Filed 11-12-71;8:46 am] antine effective September 10, 1971 (36 tence after the semicolon, and in the F.R. 18507). fourth sentence delete the words “ Hose In view of the fact that more than 96 couplings shall be of a type that” and percent of the susceptible equine popula­ capitalize the following word “The.” Title 43— PUBLIC LANDS: tion has now been vaccinated against 6. In § 75.1107-8 (h) on page 19585 add Venezuelan equine encephalomyelitis in the words “ except as provided in (d), INTERIOR the State of Mississippi, thus providing a above.” to the last sentence. vaccination buffer zone north of the area Subtitle A— Office of the Secretary of in Texas where the disease is known to 7. In § 75.1107-9(c) on page 19585 exist, and in view of the fact that exten­ change March 30,1971 to March 30,1972. the Interior sive, prolonged, and exhaustive investi­ 8. In § 75.1107-13 on page 19585 insert PART 4— DEPARTMENT HEARINGS the word “ unattended” between the first gation in that State has failed to disclose AND APPEALS PROCEDURES any evidence indicative of Venezuelan two words “All underground.” equine encephalomyelitis, the State of H ollis M. Dole, Subpart H— Special Procedural Rules Mississippi is hereby released from Assistant Secretary of the Interior. Applicable to Proceedings Con­ quarantine. The amendment relieves certain re­ N ovember 8,1971. ducted Pursuant to Enforcement strictions presently imposed but no [FRDoc.71-16591 Filed 11-12-71;8:45 am] of Executive Order 11246, as longer deemed necessary to prevent the Amended by Executive Order spread of Venezuelan equine encepha­ 11375, and Rules, Regulations, and lomyelitis, and must be made effective Orders Issued Thereunder immediately to be of maximum benefit to affected persons. It does not appear that Title 33— NAVIGATION AND On August 31, 1971, there was pub­ public participation in this rule making lished in the F ederal R egister (36 F.R. proceeding would make additional rele­ NAVIGABLE WATERS 17439-17443), pursuant to.delegated au­ vant information available to this De­ thority, and in accordance with Execu­ partment. Accordingly, under the admin­ Chapter I— Coast Guard, Department tive Order No. 11246, as amended by Ex­ istrative procedure provisions in 5 U.S.C. of Transportation ecutive Order No. 11375, and rules and 553, it is found upon-good cause that [CGFR 71-138] regulations implementing said order, as notice and other public procedure with amended, a notice and text of proposed respect to the amendment are imprac­ PART n o — a n c h o r a g e rules of practice and procedure to be ticable and unnecessary, and good cause REGULATIONS used in proceedings for the imposition of sanctions under section 209(a) (1), (5), is found for making it effective less than Mississippi River Below Baton Rouge, 30 days after publication in the F ederal and (6) of Executive Order No. 11246, as R egister. La. amended, for violations of the Executive order, as amended, and rules, regulations, This amendment to the anchorage Done at Washington, D.C., this 9th and orders thereunder. day of November 1971. regulations revises the description of the Baton Rouge General Anchorage. This Interested persons were given 30 days F. J. M u l h e r n , change in description is based on a 1962 within which to participate in the rule Acting Administrator, Army Corps of Engineers survey that making through submission of written Animal and Plant Health Service. determined a change in the position of comments, suggestions or objections. [FR Doc.71-16602 Filed 11-12-71;8:45 am] the Head of Passes. Written comments were received and

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 RULES AND REGULATIONS 21757

after due consideration of the views pre­ Sec. (i) “Notice” means a notice of hear­ sented, the proposed rules are hereby 4.790 Exceptions to recommended deter­ ing in a proceeding instituted under 41 adopted, subject to the following change: mination. CFR 60-1.26(b) and these regulations. In the last sentence of § 4.771(a), the 4.791 Record. (j) “Party” means a respondent; the words “or their representatives” are in ­ 4.792 Final decision. Director; and any person or organization serted between the word “parties” and Au th o r ity: The provisions of this Subpart participating in a proceeding pursuant the word “shall” so that the sentence H issued under Executive Order No. 11246 to § 4.757. reads : “Depositions of persons other than of September 24, 1965 (30 F.R. 12319), as (k) “ Respondent” means a person or parties or their representatives shall be amended by Executive Order No. 11375 of organization against whom sanctions are upon consent of the deponent.” October 13, 1967 (32 F.R. 14303), and 41 proposed because of alleged violations of CFR 60-1.26(b), 33 F.R. 7804 (May 28, 1968). Effective- date. These regulations shall Executive Order 11246, as amended, and Cross Reference: See Subpart A for the rules, regulations, and orders thereunder. be effective upon this publication in the organization, authority and jurisdiction of F ederal R egister (11-13-71). the Office of Hearings and Appeals, includ­ §4.753 Time compulation. Dated: November 8,1971. ing its Hearings Division. To the extent they are not inconsistent with these special rules, Except as otherwise provided by law, in W arr en F. B r ec h t, the general rules applicable to all types of computing any period of time under Deputy Assistant Secretary proceedings before the Hearings Division and these rules or in an order issued here­ of the Interior. the several Appeals Boards of the Office of under, the time begins with the day fol­ Hearings and Appeals, contained in Sub­ lowing the act or event, and includes the Subpart H— Special Procedural Rules Applicable part B of this part, are applicable also to last day of the period, unless it is a to Proceedings Conducted Pursuant to Enforce­ proceedings under these regulations. Saturday, Sunday, or Federal legal holi­ ment of Executive Order 11246, as Amended day, or other nonbusiness day, in which by Executive Order 11375, and Rules, Regula­ Subpart H— Special Procedural Rules Applicable to Proceedings Con­ event it includes the next following day tions and Orders Issued Thereunder which is not a Saturday, Sunday, Federal General ducted Pursuant to Enforcement of legal holiday, or other nonbusiness day. Sec. Executive Order 11246, as When the period of time prescribed or 4.750 Authority. 4.751 Scope of rules. Amended by Executive Order allowed is 7 days or less, intermediate 4.752 Definitions. 11375, and Rules, Regulations and Saturdays, Sundays, Federal legal holi­ 4.753 Time computation. Orders Issued Thereunder days and other nonbusiness days shall be excluded in the computation. Designation and R esponsibilities op G e n e r a l Hearing Examiner D e s ig n a t io n an d R esponsibilities o f 4.754 Designation. § 4.750 Authority. H e a r in g E x a m in e r 4.755 Authority and responsibilities. These rules of procedure supplement, § 4.754 Designation. Appearance and Practice and are established pursuant to, the pro­ visions of 41 CFR 60-1.26(b). Hearings shall be held before a hearing 4.756 Participation by a party. examiner designated by the Chief Hear­ 4.757 Determination of parties. § 4.751 Scope o f rules. ing Examiner, Hearings Division, Office 4.758 Determination and participation of of Hearings and Appeals. amici. These rules govern the practice and procedure for proceedings conducted, § 4.755 Authority and responsibilities. Form and Filing op Documents and decisions made, by the Department 4.759 Form. precedent to the imposition of sanctions (a) The hearing examiner shall have 4.760 Filing and service. under section 209(a) (1), (5), and (6) all powers necessary to preside over the 4.761 Certificate of service. of Executive Order 11246, as amended parties and the proceedings, conduct the hearing, and enter recommended find­ Procedures by Executive Order 11375, for violations of the Executive Order 11246, as ings and conclusions and a recommended 4.762 Notice of hearing. determination. His powers shall include, 4.763 Answer to notice. amended, and rules, regulations and orders thereunder. but not be limited to, the power to: 4.764 Amendments. (1) Hold conferences to settle, sim­ 4.765 Motions. § 4.752 Definitions. 4.766 Disposition of motions. plify, or fix the issues in a proceeding, or 4.767 Interlocutory appeals. Except as otherwise indicated in the to consider other matters that may aid in 4.768 Exhibits. context in which it appears in these reg­ the expeditious disposition of the pro­ 4.769 Admissions as to facts and documents. ulations, the term ceeding. 4.770 Discovery. ( 2) Require parties to state their posi­ 4.771 Depositions. (a) “Department” means the Depart­ ment of the Interior. tion with respect to the various issues in 4.772 Use of depositions at hearing. the proceedings. 4.773 Interrogatories to parties. (b) “Secretary” means the Secretary 4.774 Production of documents and things of the Interior. (3) Establish rules for media coverage and entry upon land for inspection (c) “Director” means the Director, O f­ of the proceedings. and other purposes. fice for Equal Opportunity, Department (4) Rule on motions and other proce­ 4.775 Sanctions. of the Interior. dural items in matters before him. 4.776 Ex parte communications. (d) “ Office for Equal Opportunity” (5) Regulate the course of the hear­ Prehearing means the Office for Equal Opportunity ing, the conduct of counsel, parties, wit­ nesses and other participants. 4.777 Prehearing conferences. in the Department of the Interior. (e) “ Office of Federal Contract Com­ (6) Administer oaths, call witnesses on Hearing pliance” means the Office of Federal his own motion, examine witnesses and 4.778 Appearances. Contract Compliance, U.S. Department direct witnesses to testify. 4.779 Purpose. of Labor. (7) Receive, rule on, exclude, or limit 4.780 Evidence. evidence. 4.781 Official notice. (f) “Office of Hearings and Appeals” (8) Fix time limits for submission of 4.782 Testimony. means the Office of Hearings and Ap­ written documents in matters before 4.783 Objections. peals in the Office of the Secretary, De­ him. 4.784 Exceptions. partment of the Interior. (9) Take any action authorized by 4.785 Offer of proof. (g) “Hearing examiner” means a 4.786 Official transcript. these regulations or in conformance with hearing examiner appointed by the Di­ the provisions of applicable law. Posthearing Procedures rector, Office of Hearings and Appeals. (b) The hearing examiner shall rec­ 4.787 Proposed findings of fact and con­ (h) “ Executive Order” means Execu­ ommend a determination of the issues on clusions of law. tive Order 11246, 30 F.R. 12319, as the basis of the record before him. To­ •788 Record for decision. amended by Executive Order 11375, 32 gether with his recommended determina­ •<89 Recommended determination. F.R. 14303. tion, he shall recommend findings of fact

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 21758 RULES AND REGULATIONS and conclusions of law to the Director, (e) Persons or organizations whose pe­§ 4.761 Certificate o f service. Office of Hearings and Appeals. tition for party participation is denied The original of every document filed may appeal the decision to the Director, A ppear an c e a n d P ractice and required to be served upon parties Office of Hearings and Appeals, within 7 shall be endorsed with a certificate of § 4.756 Participation by a party. days of receipt of denial. The Director, service signed by the party or amicus Subject to the provisions contained in Office of Hearings and Appeals, will make curiae making service or by his attorney Part 1 of this subtitle, a party may ap­ the final decision for the Department to or representative, stating that such serv­ pear in person, by representative, or by grant or deny the petition. ice has been made, the date of service, counsel, and participate fully in any § 4.758 Determination and participation and the manner of service. o f amici. proceeding held pursuant to these P rocedures regulations. (a) Any interested person or organi­ § 4.762 Notice of hearing. § 4.757 Determination of parties. zation wishing to participate as amicus curiae in the proceeding shall file a peti­ In response to Respondent’s request (a) The Respondent and the Director tion before the commencement of the for a hearing, the Director shall serve are the initial parties to the proceeding. hearing. Such petition shall concisely on the Respondent, pursuant to 41 CFR To the extent that proceedings here­ state the petitioner’s interest in the hear­ 60-1.26(b ), a notice of hearing by regis­ under are based in whole or in part on ing and who will represent petitioner. tered mail, return receipt requested, to matters subject to a collective bargain­ (b) The hearing examiner will grant Respondent’s last known address. Such ing agreement, any labor organization the petition if he finds that the petitioner notice shall contain the time and place which is signatory to such agreement has an interest in the proceedings and of the hearing; the legal authority under shall also have the right to participate as may contribute materially to the dispo­ which, the proceedings are to be held; a party. sition of the proceedings. The hearing and the matters pursuant to which sanc­ (b) Other persons or organizations examiner shall give the petitioner writ­ tions or other actions are proposed. shall have the right to participate as ten notice of the decision on his petition. § 4.763 Answer to notice. parties if the final decision could directly (c) An amicus curiae is not a party and adversely affect them or the class but may only participate as provided in Within 15 days after receipt of the they represent, and if they may con­ paragraph (d) of this section. notice of hearing, Respondent may file tribute materially to the disposition of (d) An amicus curiae may submit a an answer. This answer shall admit or the proceedings. written statement of position to the deny specifically and in detail matters set forth in each allegation of the notice (c) Any person or organization wish­ hearing examiner at any time prior to the beginning of a hearing, and shall unless Respondent is without knowledge, ing to participate as a party under this in which case his answer should so state, section shall submit a petition to the serve a copy on each party. He may also file a brief or written statement at such and the statement shall be deemed a hearing examiner within 15 days after denial. Matters not specifically denied the notice has been served. The petition time as the parties submit proposed find­ ings and conclusions and supporting shall be deemed admitted. Matters al­ should be filed with the hearing exami­ leged in the answer as affirmative de­ ner and served on Respondent, on the briefs to the hearing examiner and at such time as the parties file exceptions fenses shall be separately stated and Director, and on any other person or numbered. Failure of Respondent to file organization who has been made a party to the recommended determination of the hearing examiner. an answer within the 15-day period fol­ at the time of filing. Such petition shall lowing receipt of the notice may be concisely state: (1) Petitioner’s interest F o r m an d F il in g o f D o c u m e n t s deemed an admission of all facts recited in the proceeding, (2) how his participa­ in the notice. tion as a party will contribute materially § 4.759 Form. to the disposition of the proceeding, (3) Documents filed pursuant to a proceed­ § 4.764 Amendments. who will appear for petitioner, (4) the ing herein shall show the docket descrip­ The Director may amend his notice issues on which petitioner wishes to par­ tion and title of the proceeding, the party once as a matter of course before an ticipate, and (5) whether petitioner or amicus submitting the document, the answer is filed, and Respondent may intends to present witnesses. date signed, and the title, if any, and amend its answer once as a matter of (d) The h e a rin g examiner shall address of the signatory. The original course not later than 15 days after it is promptly ascertain whether there are will be signed in ink by the party repre­ filed. Other amendments of the notice objections to the petition. He shall then senting the party or amicus. Copies need or of the answer to the notice shall be determine whether petitioners have the not be signed, but the name of the person made only by leave of the hearing requisite interest to be a party in the signing the original shall be reproduced. examiner. An amended notice shall be proceedings, as defined in paragraphs § 4.760 Filing and service. answered within 10 days of its service, or within the time for filing an answer to (a) and (b) of this section, and shall (a) All documents submitted in a pro­ permit or deny participation accord­ the original notice, whichever period is ceeding shall be served on all parties. The longer. ingly. Where petitions to participate as original and two copies of each document parties are made by individuals or groups shall be submitted for filing. Filings § 4.765 Motions. with common interests, the hearing ex­ shall be made with the hearing examiner, Motions and petitions shall state the aminer may request all such petitioners at the address stated in the notice. With relief sought, the basis for relief and the to designate a single representative, or respect to exhibits and transcripts of authority relied upon. I f made before he may recognize one or more of such testimony, only originals need be filed. or after the hearing itself, these matters petitioners to represent all such peti­ (b) Service upon a party or amicus shall be in writing. If made at the hear­ tioners; provided that the representative shall be made by delivering one copy of ing, they may be stated orally; but the of a labor organization qualifying to par­ each document requiring service in per­ hearing examiner may require that they ticipate under paragraph (a) of this son or by certified mail, return receipt be reduced to writing and filed and section shall be permitted to participate requested, properly addressed with post­ served on all parties. Within 8 days after as a party. The hearing examiner shall age prepaid, to the party or amicus or a written motion or petition is served, give each such petitioner written notice his attorney, or designated representa­ any party may file a response to a motion of the decision on his petition. I f the tive. Filing will be made in person or by or petition. An immediate oral response petition is denied, he shall briefly state certified mail, return receipt requested, may be made to an oral motion. Oral to the hearing examiner, at the address argument on motions will be at the dis­ the grounds for denial and shall then stated in the notice of scheduled hearing. cretion of the hearing examiner. treat the petition as a request for par­ (c) The date of filing or of service § 4.766 Disposition of motions. ticipation as amicus curiae. The hearing shall be the day when the matter is examiner shall give written notice to deposited in the United States mail or is The hearing examiner may not grant each party of each petition granted. delivered in person. a written motion or petition prior to

FEDERAL REGISTER. VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 RULES AND REGULATIONS 21759

expiration of the time for filing re­ (e) Time limit. Discovery by all par­party, be marked for identification and sponses thereto, but may overrule or deny ties will be completed within such time annexed to the deposition. such motion or petition without await­ as the examiner directs, from the date (f) The party taking the deposition ing response: Provided, however, That the notice of hearing is served on shall give prompt notice of its filing to prehearing conferences, hearings, and Respondent. all other parties. decisions need not be delayed pending § 4.771 Depositions. disposition of motions or petitions. Oral § 4.772 Use o f depositions at hearing. motions and petitions may be ruled on (a) A party may take the testimony (a) Any part or all of a deposition, immediately. of any person, including a party, by so far as admissible under § 4.780 ap­ deposition upon oral examination. This § 4.767 Interlocutory appeals. plied as though the witness were then may be done by stipulation or by notice, present and testifying, may be used No interlocutory appeals will be per­ as set forth in paragraph (b) of this against any party who was present or mitted from an adverse ruling except as section. On motion of any party or other represented at the taking of the deposi­ specifically provided in these rules. person upon whom the notice is served, tion or who had reasonable notice there­ § 4.768 Exhibits. the hearing examiner may for cause of as follows: shown enlarge or shorten the time for (1) Any deposition may be used for Proposed exhibits shall be exchanged the deposition, change the place of the at the prehearing conference, or other­ contradiction or impeachment of the deposition, limit the scope of the deposi­ deponent as a witness. wise prior to the hearing, if the hearing tion or quash the notice. Depositions of examiner so directs. Proposed exhibits persons other than parties or their (2) The deposition of a party, or of an not so exchanged in accordance with the representatives shall be upon consent of agent designated to testify on behalf of hearing examiner’s order may be denied the deponent. a party, may be used by an adverse party for any purpose. admission as evidence. The authenticity (b (1) The party will give reasonable of all exhibits submitted prior to the notice in writing to every other party of (3) The deposition of any witness may hearing, under direction of the hearing the time and place for taking depositions, be used for any purpose if the party of­ examiner, will be deemed admitted un­ the name and address of each person to fering the deposition has been unable less written objection thereto is filed and be examined, if known, or a general de­ to procure the attendance of the wit­ served on all parties, or unless good scription sufficient to identify him or the . ness because he is dead; or if the witness cause is shown for failure to file such particular class or group to which he is at a greater distance than 100 miles written objection. belongs. from the place of hearing, or is out of the (2) The notice to a deponent may be United States, unless it appears that the § 4.769 Admissions as to facts and doc­ absence of the witness was procured by uments. accompanied by a request for the produc­ tion of documents and tangible things at the party offering the deposition; or if Not later than 25 days prior to the the taking of the deposition. the witness is unable to attend or testify date of the hearing any party may serve (3) A party may name as the depo­ because of age, illness, infirmity, or im­ upon an opposing party a written re­ nent a corporation, partnership, asso­ prisonment; or, upon application and no­ quest for the admission of the genuine­ ciation, or governmental agency and may tice, that such exceptional circumstances ness and authenticity of any relevant designate a particular person within the exist as to make it desirable, in the in­ documents described in, and exhibited organization whose testimony is desired terest of justice and with due regard to with, the request, or for the admission and the matters on which examination is the importance of presenting the testi­ of the truth of any relevant matters of requested. I f no particular person is mony of witnesses orally in open hearing, fact stated in the request. Each of the named, the organization shall designate to allow the deposition to be used. matters as to which an admission is re­ one or more agents to testify on its be­ (b) I f only part of a deposition is of­ quested shall be deemed admitted, un­ half, and may set forth the matters on fered in evidence, the remainder becomes less within a period of 20 days, the party which each will testify. The persons so subject to introduction by any party. to whom the request is directed serves designated shall testify as to matters (c) Objection may be made at the upon the requesting party a statement known or reasonably available to the hearing to receiving in evidence any either (a) denying specifically the mat­ organization. deposition or part thereof for* any reason ters as to which an admission is re­ which would require the exclusion of the quested, or (b) setting forth in detail (c) Examination and cross-examina­ tion of witnesses may proceed as per­ evidence if the witness were then present the reasons why he cannot truthfully and testifying. either admit or deny such matters. mitted at the hearing. The witness shall be placed under oath by a disinterested § 4.773 Interrogatories to parties. § 4.770 Discovery. person qualified to administer oaths by (a) Any party may serve upon any (a) Methods. Parties may obtain dis­ the laws of the United States or of other party written interrogatories after covery as provided in these rules by the place where the examination is held, the notice of hearing has been filed. I f depositions, written interrogatories, pro­ and the testimony taken by such person the party served is a corporation, part­ duction of documents, or other items; shall be recorded verbatim. nership, association, or governmental or by permission to enter property, for (d) During the taking of a deposition agency, an agent shall furnish such in­ inspection and other purposes. a party or deponent may request suspen­ formation as is available to the party. (b) Scope. Parties may obtain discov­ sion of the deposition on grounds of bad (b) Each interrogatory shall be an­ ery regarding any matter, not privileged, faith in the conduct of the examination, swered separately and fully in writing which is relevant to the subject matter annoyance, embarrassment, oppression under oath, unless it is objected to, in involved in the hearing. of a deponent or party or improper ques­ which event the objection shall be stated (c) Protective orders. Upon motion by tions propounded. The deposition will in lieu of an answer. The answers are to a party or by the person from whom then be adjourned. However, the object­ be signed by the person making them, discovery is sought, and for good cause ing party or deponent must immediately and the objections signed by the attor­ shown, the hearing examiner may make move the hearing examiner for a ruling ney or other representative making them. any order which justice requires to limit on his objections to the deposition con­ Answers and objections shall be made or condition discovery in order to protect duct or proceedings. The hearing exam­ within 30 days after the service of the a party or person from annoyance, em­ iner may then limit the scope or manner interrogatories. The party submitting the barrassment, oppression, or undue bur­ of the taking of the deposition. interrogatories may move for an order den or expense. (e) The officer shall certify the depo­ under § 4.775 with respect to any objec­ (d) Sequence and timing. Methods of sition and promptly file it with the hear­ tion to or other failure to answer an discovery may be used in any sequence. ing examiner. Documents or true copies interrogatory. The fact that a party is conducting dis- of documents and other items produced (c) Interrogatories shall relate to any °overy shall not operate to delay any for inspection during the examination of other party’s discovery. matter not privileged which is relevant the witness shall, upon the request of a to the subject matter of the hearing.

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 21760 RULES AND REGULATIONS

§ 4.774 Production of documents and (c) I f a party or an agent designated § 4.779 Purpose. things and entry upon land for in­ to testify fails after proper service (1) to (a) The hearing is directed primarily spection and other purposes. appear for his deposition, (2) to serve to receiving factual evidence and expert (a) After the notice of hearing has answers or objections to interrogatories opinion testimony related to the issues been filed, any party may serve on any submitted under § 4.773, or (3) to serve a in the proceeding. A hearing will be held other party a request to produce and/or written response to a request for inspec­ in order to determine whether Respond­ permit the party, or someone acting on tion, submitted under § 4.774, the hearing ent has failed to comply with one or his behalf, to inspect and copy any desig­ examiner on motion may make such more applicable requirements of Execu­ nated documents, phonorecords, and orders as are just, including those au­ tive Order 11246, and rules, regulations, other data compilations from which in­ thorized under subparagraphs (1) and and orders thereunder. However, this formation can be obtained and which are (2) of paragraph (b) of this section. shall not prevent the parties from enter­ in the possession, custody or control of ing into a stipulation of the facts. § 4.776 Ex parte communications. the party upon whom the request is (b) If all facts are stipulated, the pro­ served. If necessary, translation of data (a) Written or oral communications ceedings shall go to conclusion in accord­ compilations shall be done by the party involving any substantive or procedural ance with §§ 4.787 to 4.792. furnishing the information. issue in a matter subject to these pro­ § 4.780 Evidence. (b) After the notice of hearing has ceedings, directed to the hearing ex­ been filed, any party may serve on any aminer, the Director, the Director, Office Formal rules of evidence will not apply other party a request to permit entry of Federal Contract Compliance, or the to the proceeding. Irrelevant, immaterial,, upon designated property in the posses­ Director, Office of Hearings and Appeals, unreliable, and unduly repetitious evi­ sion or control of the party upon whom shall be deemed ex parte communica­ dence will be excluded from the record of the request is served for the purpose of tions and are not to be considered part a hearing. Hearsay evidence shall not be inspection, measuring, surveying or of any record or the basis for any official inadmissible as such. photographing, testing, or sampling the decision, unless the communication is § 4.781 Official notice. property or any designated object. made by motion pursuant to these rules. (c) Each request shall set forth with Whenever a party offers a public docu­ (b) The hearing examiner shall not ment, or part thereof, in evidence, and reasonable particularity the items to be consult any person, or party, on any fact such document, or part thereof, has been inspected and shall specify a reasonable in issue or on the merits of the matter shown by the offeror to be reasonably time, place, and manner of making the before him unless upon notice and oppor­ available to the public, such document inspection and performing the related tunity for all parties to participate. need not be produced or marked for iden­ acts. (c) No employee or agent of the Fed­ tification, but may be offered for official (d) The party upon whom the request eral Government engaged in the invest!-, notice as a public document item by is served shall respond within 15 days gation and prosecution of a proceeding specifying the document or relevant part after the service of the request. The re­ governed by these rules shall participate thereof. Official notice may also be taken sponse shall state, with respect to each or advise in the rendering of the recom­ of other matters, at the discretion of the item, that inspection and related activi­ mended or final decision, except as wit­ hearing examiner. ties will be permitted as requested, unless ness or counsel in the proceeding. § 4.782 Testimony. there are objections in which case the P r e h e a r in g reason for each objection shall be stated. Testimony shall be given under oath The party submitting the request may § 4.777 Prehearing conferences. "by witnesses at the hearing. A witness move for an order under § 4.775 with (a) Within 15 days after the answer shall be available for cross-examination, respect to any objection to or other has been filed the hearing examiner will and, at the discretion of the hearing examiner, may be cross-examined with­ failure to respond. establish a prehearing conference date for all parties including persons or or­ out regard to the scope of direct exami­ § 4.775 Sanctions. ganizations whose petition requesting nation as to any matter which is material (a) A party, upon reasonable notice party status has not been ruled upon. to the proceeding. to other parties and all persons affected Written notice of the prehearing con­ § 4.783 Objections. thereby, may move for an order as ference shall be sent by the hearing examiner. Objections to evidence shall be timely, follows: and the party making them shall briefly (b) At the prehearing conference the (1) I f a deponent fails to answer a state the ground relied upon. question propounded or submitted under following matters, among others, shall be § 4.771 (c ), or a corporation or other en­ considered: (1) Simplification and de­ § 4.784 Exceptions. tity fails to make a designation under lineation of the issues to be heard; (2) Exceptions to rulings of the hearing § 4.771(b) (3), or a party fails to an­ stipulations; (3) limitation of number of examiner are unnecessary. It is sufficient swer an interrogatory submitted under witnesses; and exchange of witness that a party, at the time the ruling of the § 4.773, or if a party, under § 4.774 fails lists; (4) procedure applicable to the pro­ hearing examiner is sought, makes known to respond that inspection will be per­ ceeding; (5) offers of settlement; and (6) the action which he desires the hearing mitted or fails to permit inspection, the scheduling of the dates for exchange of examiner to take, or his objection to an discovering party may move for an order exhibits. Additional prehearing confer­ action taken, and his ground therefor. compelling an answer, a designation, or ences may be scheduled at the discretion inspection. of the hearing examiner, upon his own § 4.785 Offer of proof. (2) An evasive or incomplete answer motion or the motion of a party. An offer of proof made in connection is to be treated as a failure to answer. H e a r in g with an objection taken to any ruling of (b) I f a party or an agent designated the hearing examiner excluding proffered § 4.778 Appearances. to testify fails to obey an order to permit oral testimony shall consist of a state­ discovery, the hearing examiner may In the event that a party appears at ment of the substance of the evidence make such orders as are just, including: the hearing and no party appears for the which counsel contends would be ad­ (1) That the matters regarding which opposing side, the party who is present duced by such testimony. If the excluded the order was made or any other desig­ shall have an election to present his evi­ evidence consists of evidence in written nated facts shall be established in ac­ dence in whole or such portion thereof form or consists of reference to docu­ sufficient to make a prima facie case be­ cordance with the claim of the party ments, a copy of such evidence shall be fore the hearing examiner. Failure to obtaining the order; marked for identification and shall ac­ appear at a hearing shall not be deemed (2) Refusing to allow the disobedient company the record as the offer of proof. to be a waiver of the right to be served party to support or oppose designated § 4.786 Official transcript. claims or defenses, or prohibiting him with a copy of the hearing examiner's An official reporter will be designated from introducing designated matters in proposed decision and to file exceptions for all hearings. The official transcripts evidence. to it.

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 RULES AND REGULATIONS 21781 of testimony and argument taken, to­ and decision of the hearing examiner, gether with any exhibits, briefs, or mem­ Cost of Living Council and do not con­ and the exceptions and briefs filed sub­ stitute legal rulings applicable to cases oranda of law filed therewith, shall be sequent to the hearing examiner’s filed with the hearing examiner. Tran­ which do not conform to the situations decision. clearly intended to be covered by such scripts may be obtained by the parties guides. and the public from the official reporter § 4.792 Final decision. at rates not to exceed the applicable rates The Director, Office of Hearings and N ote: Provisions of this and subsequent fixed by the contract with the reporter. circulars are subject to clarification, revision Appeals, may affirm, modify, or set aside or revocation. Upon notice to all parties, the hearing in whole or in part, the recommended examiner may authorize such corrections findings, conclusions, and decision of the This 26th circular covers determina­ to the transcript as are necessary to ac­ hearing examiner. The decision of the tions and policy statements by the Coun­ curately reflect the testimony. Director, Office of Hearings and Appeals, cil through November 12,1971. P o s t h e a r in g P rocedures shall not be final without the approval A p p e n d ix I of the Director, Office of Federal Con­ § 4.787 Proposed findings o f fact and ECONOMIC STABILIZATION CIRCULAR NO. 26 conclusions o f law. tract Compliance, Department of Labor. [FR Doc.71-16592 Filed 11-12-71;8:45 am ] 100. Purpose. (1) On August 15, 1971, Within 30 days after the close of the President Nixon issued Executive Order hearing each party may file, or the hear­ No. 11615, as amended, providing for ing examiner may request, proposed find­ stabilization of prices, rents, wages, and ings of fact and conclusions of law to­ salaries and establishing the Cost of Liv­ gether with supporting briefs. Such Title 32A— NATIONAL DEFENSE, ing Council, a Federal agency. The order proposals and briefs shall be served on delegated to the Coiuicil all of the powers all parties and amici. Reply briefs may APPENDIX conferred on the President by the Eco­ be submitted within 15 days after receipt Chapter I— Office of Emergency nomic Stabilization Act of 1970, as of the initial proposals and briefs. Reply Preparedness amended. The effective date of the order briefs should be filed and served on all was 12:01 a.m., August 16, 1971. parties and amici. [Economic Stabilization Reg. No. 1, Amdt. 6] (2) By its Order No. 1, the Council § 4.788 Record for decision. E.S. REG. 1— STABILIZATION REGU­ delegated to the Director of the Office The hearing examiner will make his LATIONS FOR PRICES, RENTS, of Emergency Preparedness authority to recommended findings, conclusions, and WAGES, AND SALARIES administer the program for the stabili­ recommended decision upon the basis of zation of prices, rents, wages, and sal­ the record before him. The transcript of Exemption from Normal Rule Making aries as directed by section 1 of testimony, exhibits, and all papers, docu­ Procedures Executive Order No. 11615, as amended. ments, and requests filed in the proceed­ (3) Executive Order No. 11627 was ings, except the correspondence section S e c t io n 1. The purpose of the amend­ issued on October 15,1971, to further im­ of the docket, shall constitute the record. ment contained in section 2 is to recog­ plement the President’s stabilization pro­ nize the continuing need for prompt gram. The order superseded Executive § 4.789 Recommended determination. determinations under OEP Economic Order No. 11615 of August 15, 1971, but The hearing examiner shall, in an ex­ Stabilization Regulation No. 1, herein­ provided in section 13 that all orders, peditious manner, rule on proposed find­ after referred to as the regulation, by regulations, circulars, or other directives ings and conclusions submitted by the formalizing the finding that notice of issued and all other actions taken pur­ parties; and shall make recommended proposed rule making and public proce­ suant to Executive Order No. 11615, as findings, conclusions, and decision. These dure thereon were and are impracticable amended, are hereby confirmed and rati­ rulings and recommendations shall be and contrary to the public interest. fied, and shall remain in full force and certified, together with the record for S e c . 2. Section 7 of the regulation is effect, as if issued under this order, decision, to the Director, Office of Hear­ hereby amended by adding a second par­ unless and until altered, amended, or ings and Appeals, for his decision. The agraph thereto to read as follows: revoked by the Council or by such com­ rulings, recommended findings, conclu­ Because of the need for prompt deter­ petent authority as the Council may sions, and decision of the hearing ex­ minations, notice of proposed rule mak­ specify. aminer shall be served on all parties and ing and public procedure thereon have (4) The purpose of this circular, the amici curiae to the proceedings. been found to be impracticable and con­ 26th in a series to be issued, is to furnish § 4.790 Exceptions to recommended trary to the public interest. further guidance to Federal officials and determination. the public in order to promote the Effective date. This regulation shall program. Within 30 days after receipt of the continue in full force and effect unless 200. Authority. (1) Relevant legal au­ recommended determination, all parties and until altered, amended, or revoked by the Cost of Living Council or by such thority for the program includes the to the proceeding may file with the Di­ following: rector, Office of Hearings and Appeals, competent authority as the Council may exceptions to the recommended findings, specify. The Constitution. conclusions and decision of the hearing Economic Stabilization Act of 1970, Public Dated: November 12,1971. Law 91-379, 84 Stat. 799; Public Law 92- ¡»aminer, together with supporting G . A . L i n c o l n , 15, 85 Stat. 38. ®ervlce such exceptions and Director, Executive Order No. 11615, as amended, 36 onefs shall be made on all parties and Office of Emergency Preparedness. F.R. 15127, August 17, 1971. «“ urn. Such briefs may be responded to Cost of Living Council Order No. 1, 36 F.R. .i™n 15 days of their receipt by the [FR Doc.71-16755 Filed 11-12-71;3:59 pm ] 16215, August 20, 1971. Parties. Responses shall be filed OEP Economic Stabilization Regulations No. 1, as amended, 36 F.R. 16515, August 21 An , Direct°r. Office of Hearings and [OEP Economic Stabilization Reg. 1, Circular appeals, and served on all parties and No. 26] 1971.

FEDERAL'REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 21762 RULES AND REGULATIONS automatically on November 13. Changes ments by the Cost of Living Council cov­ 504. Fringe benefits. (1) Employers, as will occur only through explicit action by ered in previous OEP Economic Stabiliza­ part of the compensation for a partic­ the Pay Board, the Price Commission, tion Circulars. ular job, may issue stock options to em­ the Cost of Living Council or other com­ (2) The numbering system used in this ployees for the same number of shares as in the base period (adjusted, if nec­ petent authority. circular corresponds to that used in OEP essary, for stock splits and stock divi­ Executive Order No. 11627 of October Economic Stabilization Circulars Nos. 101 and 102. dends) and under the same terms and 15,1971, superseded Executive Order No. conditions. 500. Wage and salary guidelines. 11615 of August 15,1971. The new Exec­ N o te: This subparagraph supersedes sub- utive order contains no expiration date, 502. Specific. (1) Severance pay for an paragraph 602(14) of OEP Economic Stabili­ and section 1(a) states, in part: employee leaving a job during the zation Circular No. 102 and subparagraph freeze—including pay for accrued sick 504(1) of OEP Economic Stabilization Cir­ Fending action under this order, and ex­ and vacation time—shall not be preju­ cular No. 22, as well as subparagraph 504(3) cept as otherwise provided in section 202 diced by the freeze and should be paid on of OEP Economic Stabilization Circular No. of the Economic Stabilization Act of 1970, 101. as amended, prices, rents, wages, and salaries the basis of the terms of employment that are stabilized effective as of August 16, 1971, would have applied if the freeze had not (2) In a firm where new employees at levels not greater than the highest of occurred. are informed that after they complete those pertaining to a substantial volume of 503. Promotions and increased train­ 1 year’s service they are entitled to 2 actual transactions by each individual, ing. (1) The Council has previously ruled weeks’ vacation with pay, this 1-year business, firm, or other entity of any -kind requirement is being met, in many cases, during the 30-day period ending August 14. that increases in pay are permitted dur­ 1971, for like or similar commodities or ing the freeze for bona fide promotions during the freeze period. These employees services. If no transactions occurred in that that constitute an advancement to an may receive and use such 2 weeks’ vaca­ period, the ceiling will be the highest price, established job with greater responsi­ tion during the freeze period. rent, salary, or wage in the nearest preced­ bility. Accordingly, pay increases are per­ N o te: This subparagraph supersedes sub- ing 30-day period in which transactions did mitted for reclassification of an existing paragraph 504(8) of OEP Economic Stabili­ occur. No person shall charge, assess, or re­ job—i.e., a change in title—only where zation Circular No. 102. ceive, directly or indirectly, in any transac­ such reclassification represents a bona tion, prices or rents in any form higher 1001. Effective date. (1) This circular fide promotion. That is than those permitted hereunder, and no shall continue in full force and effect un­ person shall, directly or indirectly, pay or (a) The change must be accomplished less and until altered, amended, or re­ agree to pay, in any transaction, wages or through a formal reclassification pro­ voked by the Cost of Living Council or salaries in any form, or to use any means gram that was in place before the freeze, by such competent authority as the Coun­ to obtain payment of wages and salaries in (b) The new job title of the employee any form, higher than those permitted here­ cil may specify. under, whether by retroactive increase or must already be in existence in the orga­ otherwise. nization (i.e., with a ceiling wage at­ Dated: November 12,1971. tached to it ) , and 300. General guidelines. (1) The guid­ G. A. L in c o l n , (c) The duties and responsibilities of Director, ance provided in this circular is in the the employee under the new title must Office of Emergency Preparedness. nature of additions to or clarifications of be significantly greater than those re­ previous determinations and policy state- quired under the previous title. [P R Doc.71-16754 Piled 11-12-71;3:59 pm]

FEDERAL REGISTER. VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 21763 Proposed Rule Making

(2) Sundays and Federal holidays All communications received within 30 DEPARTMENT OF from 2 p.m. to 7 p.m., except that the days after publication of this notice in draw shall open at 4 p.m. and 6 p.m. for the F ederal R eg ister will be considered TRANSPORTATION any vessels waiting to pass. before action is taken on the proposed Coast Guard (b) The draw shall open at any time amendment. No public hearing is con­ on the signal of four short blasts for templated at this time, but arrangements E 33 CFR Part 117 1 public vessels of the Uhited States, State, for informal conferences with Federal or local vessels used for public safety, ICGFR 71-137] Aviation Administration officials may be tugs with tows and vessels in distress. made by contacting the Regional Air Traffic Division Chief. Any data, views, NEUSE AND TRENT RIVERS, N.C. § 117.353 Trent River, N.C.; U.S. 70 or arguments presented during such con­ highway bridge at New Bern. Proposed Drawbridge Operation ferences must also be submitted in writ­ Regulations (a) The draw shall open on signal as ing in accordance with this notice in prescribed in § 117.240 except that from The Coast Guard is considering order to become part of the record for May 30 through September 7, the draw consideration. The proposal contained in amending the regulations for the Route may remain closed— 17 highway bridge across the Neuse this notice may be changed in the light of comments received. River and the Route 70 highway bridge (1) From Monday through Friday across the Trent River, both at New Bern, from 6:30 a.m. to 7:30 a.m. and 4:30 A public docket will be available for to add closed periods on Sundays from p.m. to 5:30 p.m., and examination by interested persons in the May 30 through September 7 and Me­ (2) Sundays and Federal holidays office of the Regional Counsel, Federal morial Day, Fourth of July, and Labor from 2 p.m. to 7 p.m., except that the Aviation Administration, 10255 East 25th Day. This amendment is being considered draw shall open at 4 p.m. and 6 p.m. for Avenue, Aurora, CO 80010. because of heavy vehicular traffic during any vessels waiting to pass. An additional 9,500-foot MSL transi­ Sundays and the holidays named. (b) The draw shall open at any time on tion area is necessary for maximum Interested persons may participate in the signal of four short blasts for public utilization of radar capability in vector­ this proposed rule making by submitting vessels of the United States, State, or ing aircraft to and from the terminal written data, views, or arguments to the local vessels used for public safety, tugs areas at Denver, Colorado Springs, and Commander (oan), Fifth Coast Guard with tows and vessels in distress. Pueblo, Colo. Also, radar service will be District, Federal Building, 431 Crawford (Sec. 5, 28 Stat. 362, as amended, sec 6(g) provided high performance military air­ Street, Portsmouth, VA 23705.. Each per­ (2 ), 80 Stat. 937; 33 U.S.C. 499, 49 U S C craft conducting training activities with­ son submitting comments should in­ 1655(g) (2 ); 49 CFR 1.46(c) (5 ), 33 CFR 1 05-^ in the area at altitudes 10,000 MSL and clude his name and address, identify the 1 (C )(4 )) above. bridge, and give reasons for any recom­ Dated: November 5,1971. The 9,500-foot MSL transition area mended change in the proposal. Copies will replace the 8.500-foot MSL transi­ of all written communications received W . M . B e n k e r t , tion area presently designated east of will be available for examination by in­ Rear Admiral, U.S. Coast Guard, Hugo VOR. terested persons at the office of the Com­ Chief, Office of Marine En­ In consideration of the foregoing, the mander, Fifth Coast Guard District. vironment and Systems. FAA proposes the following airspace The Commander, Fifth Coast Guard [FR Doc.71-16606 Filed 11-12-71:8:46 am ] action. District, will forward any comments re­ In § 71.181 (36 F.R. 2140) the descrip­ ceived before December 17,1971, with his tion of the Hugo, Colo., transition area recommendations to the Chief, Office of Federal Aviation Administration is amended by deleting all after “ * * * Marine Environment and Systems, who E 14 CFR Part 71 1 and that airspace east of Hugo, * * *” wffi evaluate all communications received and substitute “extending upward from jmd take final action on this proposal. [Airspace Docket No. 71-RM-28] 9,500 feet MSL, bounded on the north proposed regulations may be by V-4, on the east by V-17, on the south­ changed in the light of comments TRANSITION AREA received. east by V-216, on the southwest by V-263, Proposed Alteration and on the northwest by V-169, exclud­ In consideration of the foregoing, it is ing the airspace within Federal airways Proposed that Part 117 of Title 33 of the The Federal Aviation Administration is considering an amendment to Part 71 and the Pueblo and Colorado Springs, code of Federal Regulations be amended Colo., transition areas * * *” therefor. Py revising § 117.352 and § 117.353 to of the Federal Aviation Regulations that read as follows: would alter the description of the Hugo, This amendment is proposed under the Colo., transition area. authority of section 307(a) of the Fed­ § 117.352 Neuse River, N.C.; U.S. 17 Interested persons may participate in eral Aviation Act of 1958, as amended highway bridge at New Bern. (49 U.S.C. 1348(a)), and of section 6(c) the proposed rule making by submitting (a) The draw shall open on signal as of the Department of Transportation Act Prescribed in § 117.240, except that from such written data, views, or arguments (49 U.S.C. 1655 (c)>. as they may desire. Communications May 30 through September 7, the draw Issued in Aurora, Colo., on November May remain closed— should be submitted in triplicate to the 5,1971. . From Monday through Friday Chief, Air Traffic Division, Federal Avia­ M . M . M a r t in , |J®L®:30 am. to 7:30 a.m. and 4:30 p.m. tion Administration, Park Hill Station, 10 5:30 p.m., and Director, Rocky Mountain Region. Post Office Box 7213, Denver, CO 80207. [FR Doc.71-16605 Filed 11-12-71;8:46 am ]

No. 220— Pt. I- FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 21764 Notices

Fourth Principal Meridian 181 et seq.), proposes to issue a rule design DEPARTMENT OF THE INTERIOR T. 33 N., R. 10 E.„ nating the stockyards named above as Sec. 36, lot 20. posted stockyards subject to the pro­ Bureau of Land Management visions of the Act as provided in section The area described contains 0.24 acre. [ES 9001] 302 thereof. 2. This is a supplemental plat prepared Any person who wishes to submit MISSOURI to give area and designation to an island written data, views, or arguments con­ in Lower Bass Lake not previously shown cerning the proposed rule, may do so by Notice of Filing of Plat of Survey on an official plat. This plat is based en­ filing them with the Chief, Registrations, tirely on the record of an island survey 1. The plat of survey of the following Bonds, and Reports Branch, Packers and in section 36 made by C. M. Pidgeon, U.S. described land will be officially filed in Stockyards Administration, U.S. Depart­ Surveyor, in 1911, and a dependent re­ the Eastern States Land Office, Silver ment of Agriculture, Washington, D.C. survey and extension survey in section 36 Spring, Md., effective at 10 a.m. on De­ 20250, within 15 days after publication made by A. W. Brown, U.S. Cadastral cember 14,1971. in the F ederal R e g ist e r . Engineer, in 1931. All written submissions made pursuant Fif t h P rincipal Meridian 3. In accordance with the field notes to this notice shall be made available for T. 34 N., R. 14 E., of the survey made by C. M. Pidgeon, public inspection at such times and Sec. 20, lot 5. approved January 3, 1913, the island is places in a manner convenient to the The area described contains 0.70 acres. classified as being over 50 percent upland public business (7 U.S.C. 1.27(b)). in character within the interpretation of Done at Washington, D.C., this 9th 2. This plat represents the survey of the Swamp Land Act of September 28, day of November, 1971. Grand Tower Rock Island located along 1850. the western bank of the Mississippi River. 4. Except for valid existing rights, this G . H . H opper, This island of rock resembles hard slate Chief, Registrations, Bonds, and and has an elevation of approximately land will not be open to any applications for use or disposition under the public Reports Branch, Livestock 90 feet above mean high water level. Marketing Division. Small pine trees grow on the top of this land laws until it has been classified and rock. There is no evidence of improve­ a further order is issued. [FR Doc.7.1—16622 Filed 11-12-71;8:47 am] ments, present use or occupancy of this 5. All inquiries relating to this land island. should be sent to the Manager, Eastern 3. Although it was not included in the States Land Office, Bureau of Land DEPARTMENT OF COMMERCE original township surveys made in 1817 Management, 7981 Eastern Avenue, Sil­ and 1818, this island is depicted upon the ver Spring, Md. 20910. Maritime Administration official plat of those surveys approved D o r is A. K o iv u l a , [Docket No. S-270] March 3, 1853. The character of the is­ Manager. land attests to its existence on August 10, AMERICAN PRESIDENT LINES, LTD. N o vem ber 8, 1971. 1821, when Missouri was admitted into Notice of Application the Union, and at all times since. It is [F R Doc.71-16610 Filed 11-12-71;8:46 am] well over 50 percent upland within the Notice is hereby given that American interpretation of the Swamp Land Act President Lines, Ltd., has filed an appli­ of September 28,1850. cation requesting written permission un­ 4. Grand Tower Rock Island was re­ DEPARTMENT OF AGRICULTURE der section 805(a) of the Merchant Ma­ served for public purposes by order of Packers and Stockyards rine Act, 1936, as amended, to carry pas­ the President of the United States dated Administration sengers, their baggage, and automobiles February 24,1871. In addition, all islands in domestic trade between any U.S. ports in the Mississippi River were withdrawn WALKERTON LIVESTOCK SALES, INC., in connection with cruises authorized by the Secretary of the Interior on ET AL. pursuant to section 613 of the Act. The April 10, 1891, at the request of the Sec­ application was dated October 19, 1971. retary of War, in the interest of naviga­ Proposed Posting of Stockyards Interested parties may inspect this ap­ tion. The Chief, Registrations, Bonds, and plication on the Office of Subsidy Admin­ 5. All inquiries relating to this land Reports Branch, Packers and Stockyards istration, Maritime Administration, should be sent to the Manager, Eastern Administration, U.S. Department of Ag­ Room 4888, Department of Commerce States Land Office, Bureau of Land Man­ riculture, has information that the live­ Building, 14th and E Streets NW„ Wash­ agement, 7981 Eastern Avenue, Silver stock markets named below are stock- ington, DC. Spring, Md. 20910. yards as defined in section 302 of the Any person, firm, or corporation hav­ Packers and Stockyards Act, 1921, as ing any interest, within the meaning ol D o ris A. K o iv u l a , amended (7 U.S.C. 202), and should be Manager. section 805(a), in such application ana made subject to the provisions of the Act. desiring to be heard on issues pertinen N o vem ber 8,1971. Walkerton Livestock Sales, Inc., Etna Green, to section 805(a), or desiring to submit [F R Doc.71-16607 Filed 11-12-71;8:46 am] Ind. comments or views concerning the aPP11" Johnson Livestock Market, Webster City, cation must, by close of business on No­ Iowa. vember 26,1971, file same with the Secre­ [ES 9478] Herington Livestock Auction Co., Inc., Her- tary, Maritime Subsidy Board/Mantime ington, Kans. Administration, in writing, in tnphca, WISCONSIN Lockhart Auction, Incorporated, Lockhart, Tex. together with petition for leave to mt - Notice of Filing of Plat of Survey Menard County Commission Company, Inc., vene which shall state clearly and co - Menard, Tex. cisely the grounds of interest, and 1. The plat of survey of the following alleged facts relied upon for relief. described land will be officially filed in Notice is hereby given, therefore, that the Eastern States Land Office, Silver the said Chief, pursuant to authority I f no petitions for leave to intervene Spring, Md., effective at 10 a.m. on delegated under the Packers and Stock- are received within the specified tun » if it is determined that petitions filed December 11,197 L yards Act, 1921, as amended (7 U.S.C.

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 NOTICES 21765

not demonstrate sufficient interest to for their needs. Finally, it appears that warrant a hearing, the Maritime Subsidy CIVIL AERONAUTICS DOARD both Eastern and Southern will be fi­ Board/Maritime Administration will take [Dockets Nos. 22990, 23741; Order 71-11-35] nancially benefited by our proposed ac­ such action as may be deemed tion. Eastern estimates a $138,000 saving appropriate. EASTERN AIR LINES, INC. by elimination of its Atlanta-Albany In the event petitions regarding the service. If the proposed deletion were relevant section 805(a) issues are re­ Order To Show Cause and Granting granted, Southern forecasts a calendar ceived from parties with standing to be Temporary Suspension 1972 net profit after return and taxes of heard, a hearing has been tentatively Adopted by the Civil Aeronautics $51,567, according to prescribed Subpart scheduled for December 1, 1971, in Room Board at its office in Washington, D.C., K methodology. These estimates appear 4896, Department of Commerce Build­ on the 9 th day of November 1971. reasonable.5 ing, 14th and E Streets NW., Washing­ By application in Docket 22990, East­ Interested persons will be given 20 days ton, DC. The purpose of the hearing will ern Air Lines, Inc. (Eastern), has re­ following service of this order to show be to receive evidence under section 805 quested amendment of its certificate of cause why the tentative findings and (a) relative to whether the proposed public convenience and necessity for conclusions set forth herein should not operation (a) could result in unfair com­ route 10 so as to delete Albany, Ga., be made final. We expect such persons to petition to any person, firm, or corpora­ therefrom.1 On August 20, 1971, Eastern support their objections, if any, with tion operating exclusively in the coast­ filed a combined motion for issuance of detailed answers, specifically setting wise or intercoastal service, or (b) would a show cause order and application for forth the findings and conclusions to be prejudicial to the objects and policy authority to suspend service temporarily which objection is taken. Such objections of the Act. " pendente lite.2 should be accompanied by arguments of By order of the Maritime Subsidy Upon consideration of Eastern’s re­ fact or law and should be supported by Board/Maritime Administration. quest and other relevant facts, we have legal precedent or detailed economic decided to issue an order to show cause, analysis. If an evidentiary hearing is re­ Dated: November 9,1971. proposing to grant the requested dele­ quested, the objector should state in de­ J amks S. D a w s o n , Jr., tion, and to grant Eastern authority to tail why such a hearing is considered Secretary. suspend service at Albany, pendente lite. necessary and what relevant and ma­ terial facts he would expect to establish [FRDoc. 71-16624Piled 11-12-71:8:47 am] We tentatively find and conclude that the public convenience and necessity re­ through such a hearing. General, vague, quire the amendment of Eastern’s route or unsupported objections will not be 10 so as to delete Albany, Ga., therefrom. entertained. DEPARTMENT OF In support of our -ultimate conclusion, Turning to the application for tem­ we tentatively find and conclude as porary relief, we find that it is in the follows: public interest to permit Eastern to tem­ TRANSPORTATION Deletion of Eastern’s service will not porarily suspend service at Albany, Coast Guard leave Albany without certificated air pendente lite. For reasons set forth service. Southern, the principal carrier above, we believe that Eastern has made [CG FR 71-140] at Albany, increased its Albany opera­ a sufficient preliminary showing that its SAN FRANCISCO BAY tions on May 1, 1971, when Eastern re­ suspension, coupled with Southern’s duced its service.* Southern has indicated planned service expansion, will not have Security Zone its intent to further increase service by an adverse effect on the overall service four nonstop flights in the Atlanta mar­ By virtue of the authority vested in at Albany and that suspension will re­ ket on October 31, 1971, and to add an sult in savings to Eastern.8 the Commandant, U.S. Coast Guard, by additional nonstop round trip if East­ Accordingly, it is ordered, That: Executive Order 10173, as amended (33 ern’s service is terminated. It appears CPR Part 6), sec. 6(b) (1), 80 Stat. 937, that Southern has and would continue 1. All interested persons are directed to show cause why the Board should not is­ 49 U.S.C. 1655(b)(1), 49 CPR 1.46(b) to fill any service void created by East­ and the redelegation of authority to the ern’s reduction or elimination of serv­ sue an order making final the tentative Chief, Office of Marine Environment and ice.4 Since the objections of the Albany findings and conclusions stated herein, Systems, U.S. Coast Guard Headquarters parties have been withdrawn, it appears and amending Eastern Air Lines, Inc.’s, as contained in the F ederal R egister of that they are satisfied that the service certificate of public convenience and September 30^ 1971 (36 P.R. 19160), I provided by Southern will be sufficient necessity for route 10 so as to delete A l­ hereby affirm for publication in the F ed­ eral R egister the order of Mark A. bany, Ga., from segments 2 and 5; 1 Answers were filed by the city of Albany Whalen, Rear Admiral, U.S. Coast Guard, and Dougherty County, Qa. (Albany Parties), 2. Any interested persons having ob­ Commander, Twelfth Coast Guard Dis- objecting to the deletion and requesting a jections to the issuance of an order mak­ inct, who has exercised authority as public hearing in Albany. On Aug. 18, and ing final the proposed findings, conclu­ District Commander, such order reading Aug. 27, 1971, after consultations among sions, and certificate amendments set as follows: Eastern, the Albany parties and Southern Airways, Inc. - (Southern), the Albany parties forth herein shall, within 20 days after Sa n F r a n c is c o B a y withdrew their objections. service of a copy of this order, file with 2 In an answer to Eastern’s motion filed SECURITY ZONE Sept. 9, 1971, Southern supports deletion of the Board and serve upon all persons My order of June 16, 1971, published at 3< Eastern’s authority. made parties to this proceeding a state­ Register 11822, June 19, 1971, es- 2 As of May 1, 1971, Eastern reduced its ment of objections together with a sum­ awished a security zone in the waters oi service between Albany and Atlanta from mary of testimony, statistical data, and Francisco Bay around Alcatraz Island three daily round trips to a single daily commencing at 1200 P.d.t., June 16, 1971. Atlanta round trip. In contrast, Southern p at security zone is terminated at 120C provides nine daily flights in the Albany- r -s.t., November 15,1971. 5 We find that both carriers are fit, willing, Atlanta market, six of which are nonstop.- and able properly to perform the air trans­ In addition, Air South, an air taxi, provides Dated: November 11,1971. portation resulting herein and to conform two daily round trips between Albany and to the provisions of the Act and the Atlanta. W. M. B e n k e r t , Board's rules, regulations, and requirements Rear Admiral, U.S. Coast Guard, 4 Deletion of Eastern would result in the thereunder. elimination of certificated air service between 8 shall authorize Eastern to suspend Chief, Office of Marine En­ Albany and Macon. However, Eastern indi­ vironment and Systems. service for a temporary period terminating cated that traffic in that market amounted no later than 60 days following final Board to less than one passenger per day in -Tun« [FR Doc.71-16655 Filed 11-12-71;8:48 am ] decision on Eastern’s application filed in Docket 22990.

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 21766 NOTICES other evidence expected to be relied upon ing fares, rates, and charges for pas­ conform to those permitted under the to support the stated objections;7 sengers and property, so as to assure the freeze and any subsequent modifications. 3. I f timely and properly supported ob­ implementation of Executive Order 11615 To achieve this purpose, the Board will jections are filed, full consideration will with respect to air transportation. By continue to permit carriers to withdraw be accorded the matters or issues raised Order 71-9-51 dated September 13,1971, tariffs inconsistent with the stabilization by the objections before further action the Board issued Amendment No. 1 to its regulations on 1 day’s notice, and will is taken by the Board; stabilization order to reflect subsequent keep in effect the delegation to the Chief, 4. In the event no objections are filed, economic stabilization regulations and Tariffs Section, to issue such rejection all further procedural steps will be rulings that (1) prices need not be estab­ notices and take such other action as is deemed to have been waived and the lished at levels less than those prevailing necessary to implement its order. Board may proceed to enter an order in May 25, 1970, and (2) the period of the In recognition of the fact that modifi­ accordance with the tentative findings freeze imposed by the Executive Order is cations may be made to the freeze regu­ and conclusions set forth herein; deemed to expire November 13, 1971. On lations at any time, and to provide the 5. Eastern Air Lines, Inc., be and it October 27, 1971, the Board issued necessary flexibility to meet such situa­ hereby is authorized to suspend service Amendment No. 2 to its stabilization or­ tions without the necessity for additional temporarily at Albany, Ga., for 2 years, der (Order 71-10-121) to reflect rulings amendments to our stabilization order or until 60 days following final action of the Cost of Living Council that for­ for each modification as may be made in Docket 22990, whichever occurs first; eign air carrier rates are not subject to to the freeze regulations, the amended 6. A copy of this order shall be served the freeze and that rates of U.S. air car­ order will permit, with Board authoriza­ upon Eastern Air Lines, Inc., Southern riers, both inbound and outbound, may tion, tariffs to be filed containing rates Airways, Inc., Mayor, city of Albany, be raised to reflect increased costs arising above the level of the base' period, if Ga., County Administrator, Dougherty from currency revaluation. consistent with modified freeze regula­ County, Ga., Mayor, city of Macon, Ga., Subsequent to the issuance of these tions and the Board’s tariff filing regula­ Mayor, city of Atlanta, Ga., and Gover­ Board orders, Economic Stabilization tions. This will provide flexibility to the nor, State of Georgia; and Regulation No. 1, freezing prices, rents, Board and the carriers to meet changing circumstances consistent with the Gov­ 7. This order "may be amended or re­ and wages, was amended to extend the effective date of that regulation beyond ernment’s stabilization program.2 voked at any time in the discretion of the The amendments described above will Board without a, hearing. November 13, 1971, and to continue such regulation in full force and effect until modify the existing provisions of order­ This order will be published in the F ed­ altered, amended, or revoked by the Cost ing paragraph 1 of the Board’s stabiliza­ eral R e g ist e r . of Living Council or by such competent tion order, as amended. For the convenience of all concerned this order By the Civil Aeronautics Board. authority as the council may specify.1 The Cost of Living Council announced will set forth in full the ordering para­ [ s e a l ] H ar r y J. Z i n k , that the provisions of the economic sta­ graphs of our stabilization order, as now Secretary. bilization program, which have been in amended. That: [FR Doc.71-16616 Piled 11-12-71;8:46 am] force since August 15, 1971, will con­ Accordingly, it is ordered, tinue until they are specifically modified The ordering paragraphs of Order 71- by the Pay Board, Price Commission, or 8-78, as amended by Orders 71-9-51 and [Docket No. 23694] the Cost of Living Council, that changes 71-10-121 are hereby amended to read will occur only through explicit action in their entirety as follows: SERVICIO AEREO DE HONDURAS, S.A. 1. Unless otherwise authorized by the (SAHSA) taken by competent authority, and that it is anticipated that initial modifications Board, each air carrier shall: a. Make no increases directly or indi­ Foreign Air Carrier Permit; Notice of to the freeze rules will be announced rectly, in fares, rates, and charges in prior to November 13, 1971. In this cir­ Postponement of Prehearing Con­ air transportation services above the cumstance, the rates of air carriers re­ ference highest in effect during the 30-day pe­ main frozen unless and until explicit riod ending August 14, 1971: Provided, Notice is hereby given that the pre- action is taken to modify or remove such That fares, rates, and charges need not hearing conference in the above-entitled freeze. In view of the President’s Execu­ proceeding now assigned to be held on be established at levels less than those tive Order of October 15, 1971, Amend­ prevailing May 25, 1970: And provided, November 17, 1971, is postponed indefi­ ment No. 5 to Economic Stabilization That rates, fares, and charges of U.S. nitely. The postponement is at the re­ Regulation No. 1 and announcements by quest of the applicant. air-carriers, both inbound and outbound, the Cost of Living Council, the Board may be raised to reflect increased costs Dated at Washington, D.C., Novem­ finds that further amendments are re­ arising from currency revaluation. ber 9, 1971. quired in its stabilization order to assure b. Withdraw all proposed tariffs or the implementation of the Executive effective tariffs, including expiry provi­ [ s e a l ] W il l ia m H . D a ppe r , order and applicable regulations by air Hearing Examiner. sions, which would directly or indirectly carriers and to assure that the air car­ effect an increase in fares, rates, and [FR Doc.71-16614 Filed 11-12-71;8:46 am] riers’ tariffs are consistent therewith. charges, except as may be permitted There presently are on file with the pursuant to ordering paragraph la, above [Docket No. 23785; Order 71-11-36; Arndt. 3] Board various tariffs containing rate in­ the highest in effect during the 30-day creases marked for effectiveness on or period ending August 14, 1971: Provided, ALL U.S. AND FOREIGN AIR after November 14, 1971. These rates That this requirement shall not apply to CARRIERS cannot take effect if the freeze contin­ tariffs which would establish rates, fares, ues or unless permitted under subsequent and charges at levels the same as or less Order Stabilizing Fares, Rates, and modifications therein. Furthermore, it Charges for Passengers and Property may not be possible to determine imme­ diately whether a particular proposed 2 It is the intention of this amendment that Adopted by the Civil Aeronautics the Board’s authorization for such tar rate increase will conform to the modi­ Board at its office in Washington, D.C., filings will be granted only where it cieariy fications. In these circumstances the on the 10th day of November 1971. appears that the tariff flUng is consistent Board has concluded that it should ex­ with a modification to the freeze regulation , By Order 71-8-78 dated August 17, tend the present moratorium on tariff and that such authorization may be granw^ 1971, the Board issued its order stabiliz- filings beyond November 14, 1971, and by the Chief, Tariffs Section, pursuant ^ ordering paragraph 3 of the Board s sta it will accept only those -filings which tion order. This amendment is for tne P T All motions and/or petitions for recon­ pose of enabling air carriers to file ___ sideration shall be filed within the period consistent with the applicable stabil allowed for filing objections and no further 1 Amendment 5 dated Oct. 29, 1971, to re­ regulations. The Board, of course, win eva such motions, requests, or petitions for re­ flect Executive Order No. 11627 of Oct. 15, uate such tariffs consistent with it consideration of this order will be 1971, which superseded Executive Order making criteria. entertained. 11615.

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 NOTICES 21767

than those prevailing May 25, 1970, for Louisiana Power and Light Co., Central negotiate with the three companies for service of the same class. Louisiana Electric Co. use of their transmission lines. 2. Special tariff permission is hereby On September 30, 1971, the cities of Cities contend that the conspiracy granted to effect such withdrawals on Lafayette and Plaquemine, La. (cities), continued during these negotiations. 1 day’s notice. filed a protest and petition to intervene They say that the companies, while will­ 3. The Chief, Tariffs Section, is hereby in the matter of Gulf States Utilities Co., ing to supply transmission of power to authorized and directed to issue such re­ Docket No. E-7663, which involves an some of the LEC members, refused to jection notices and to take such other application to issue and sell securities supply transmission services between action as is necessary to implement this pursuant to section 204 o f The Federal pool members. They further say that the order. Power Act. companies demanded that LEC limit its 4. This order shall be served upon all The cities incorporate by reference the power capacity to the 200 MW already air carriers and foreign air carriers. protest and petition to intervene filed by planned, and that the companies supply the cities on November 2,1970, in Docket all further power needs of the 12 co­ This order will be published in the No. E-7567. Among other things the cities operatives, thus precluding further LEC F ederal R eg ist e r . set forth the following allegations: expansion to serve its members’ expand­ By the Civil Aeronautics Board. The cities allege that Gulf States Util­ ing load. ities Co. along with Louisiana Power and On October 12, 1971, the applicant an­ [ s e a l] H a r r y J. Z i n k , Light Co. and Central Louisiana Electric Secretary. swered the protest and petition to inter­ Co. engaged in a conspiracy to suppress vene denying violations of anti-trust [FR Doc.71-16617 Filed 11-12-71;8:47 am] and defeat an interconnection and pool­ laws, the Federal Power Act, or the Pub­ ing agreement between the cities, Dow lic Utilities Holding Company Act of Chemical Co. and Louisiana Electric Cor­ 1935 and stating further that the allega­ porative, Incorporation (LEC). LEC, a tions of the cities did not allege circum­ CIVIL SERVICE COMMISSION generating and transmission cooperative stances or activities other than those financed by The Rural Electrification DEPARTMENT OF THE INTERIOR raised in their petition to intervene in Administration, is made up of 12 electric Docket No. E-7567, which were unre­ Notice of Grant of Authority To Make distribution cooperatives, all of which solved under the Appeal by the cities to operate in Louisiana. the U.S. Court of Appeals for the Dis­ Noncareer Executive Assignment In September 1964, the REA under­ trict of Columbia Circuit. Applicant Under authority of § 9.20 of Civil Serv­ took to make $56.5 million loan to LEC further stated that if the Courts ulti­ ice Rule IX (5 CFR 9.20), the Civil Serv­ for construction of a 200 M W generating mately sustain the Commission’s action ice Commission authorizes the Depart­ station with 1,611 miles of transmission in Docket No. E-7567, then such action ment of the Interior to fill by noncareer lines through which the LEC could serve would also be proper in the present executive assignment in the excepted eight of jts 12 member cooperatives. proceeding. service the position of Deputy Director, Prior to this time, the three companies Policy and Plans, National Park Service. had been selling power to those coopera­ On October 12, 1971, the U.S. Court of tives. According to cities the companies Appeals for the District of Columbia Cir­ U n it e d S tates C iv il S er v­ succeeded in delaying the actuarial use cuit remanded the Commission’s order ic e C o m m is s io n , of the funds thus provided for more than in Docket No. E-7567. [ s e a l ] J a m e s C. S p r y , Upon review of the cities’ petition and Executive Assistant to 5 years, through a series of lawsuits filed by the companies themselves and by the the reply thereto by Gulf States and in jthe Commissioners. companies’ attorneys on behalf of other accordance with our order issued simul­ [FR Doc.71-16611 Filed 11-12-71;8:46 am] putative plaintiffs. taneously herewith in Docket No. E-7663, Cities alleged that in August 1968, the it is our view that the matter raised by cities, Dow and LEC executed an inter­ the cities should be handled as a com­ DEPARTMENT OF THE INTERIOR connection and pooling agreement pro­ plaint under section 306 of the Federal Notice of Revocation of Authority To viding for the interconnection of their Power Act. Make Noncareer Executive Assign­ generating systems and a long term pool­ The cities should be afforded the op­ ment ing and coordination arrangement, with portunity to present evidence in support a minimum term of 10 years. The agree­ of their allegations and to show under Under authority of § 9.20 of Civil Serv­ ment, approved by the REA administra­ Part II of the Federal Power Act what ice Rule IX (5 CFR 9.20), the Civil Serv­ tor on November 19, 1968, provided for prospective relief the Commission can ice Commission revokes the authority of a combined planning of load require­ grant, assuming cities sustains the bur­ the Department of the Interior to fill ments for the cities, the LEC members den of proving such allegations. Accord­ by noncareer executive assignment in the and Dow. It meant, according to cities, ingly, the above-mentioned protest and excepted service the position of Assistant assurance of a market for all surplus petition and reply of Gulf States Utilities to the Under Secretary for Environ­ capacity and secondary energy, as well Co. will be treated as a complaint and mental Planning, Office of the Secretary. as coordination, and substantial savings, answer thereto, respectively, and a pub­ in the construction of new generators, lic hearing will be held in order to afford U n it e d S tates C i v i l S er v­ in sum, economics of scale, plus bene­ all parties an opportunity to present evi­ ic e C o m m is s io n , fits in the form of backup for each sys­ dence on the issues raised therein. [ seal] J a m e s C. S p r y , tem and energy interchanges. At such a hearing, the cities, as pro­ Executive Assistant to Cities stated that by engaging in ponents, shall have the burden of prov­ the Commissioners. frivolous and repetitive litigation, and ing that such acts and practices of Gulf [FR Doc.71-16612 Filed 11-12-71;8:46 am ] by mounting a public relations drive and States Utilities Co. are continuing or are lobbying effort against LEC, the three likely to continue, and to what extent companies were able to hold up disburse­ the Commission has jurisdiction to ment of the loan money until January, remedy such acts and practices. FEDERAL POWER COMMISSION 1969, when a new REA administrator The Commission finds: [Docket No. E-7676] was sworn into office. This prevented the (1) It is necessary and appropriate members of the new pool from going CITIES OF LAFAYETTE AND in the proper exercise of the Commis­ ahead with their agreement. Further­ sion’s responsibilities under the Federal PLAQUEMINE, LA. ET AL. more, a rise in costs during the 5-year Power Act that the above described is­ delay raised a serious question whether sues raised by the cities in their protest Order Accepting Complaint and the original loan would suffice to finance Prescribing Hearing Procedures and petition filed in Docket No. E-7663 all of the LEC’s generation and trans­ be investigated in the context of a com­ mission needs. Therefore, the new Ad­ N ovem ber 4,1971. plaint proceeding to determine what re­ ministrator advanced funds only for the lief, if any, may be granted by the Com­ The cities of Lafayette and Plaque- LEC generating station, but not for mme> La., versus Gulf States Utilities Co., mission under Part n of the Federal transmission lines, and LEC was left to Power Act.

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13 1971 21768 NOTICES

(2) The expeditious disposition of this Jersey, Princeton, N.J., for approval to part of Hudson County, most of Union proceeding will be furthered by the sub­ become a bank holding company through County and the eastern half of Morris mission of prepared testimony and ex­ the acquisition of 100 percent of the vot-- County. American Bank controls 7.5 per­ hibits by the cities in support of their ing shares (less directors’ qualifying cent of commercial bank deposits, and is allegation on or before January 3, 1972. shares) of the successor by merger to the fourth largest bank in that market. (3) The expeditious disposition of this American National Bank & Trust, Mont­ (Banking data concerning market con­ proceeding will be further effectuated by clair, N.J., and 100 percent of the voting trol and size are as of June 30, 1971.) holding a hearing on February 8, 1972. shares of Princeton Bank and Trust Co., Princeton Bank ($77.5 million de­ The Commission orders: Princeton, N.J. posits), headquartered in the Second (A ) Pursuant to the authority of The There has come before the Board of Banking District, has eight banking of­ Federal Power Act, particularly sections Governors, pursuant to section 3(a) (1) fices, and operates in the Trenton bank­ 202, 306 and 307 thereof and the Com­ of the Bank Holding Company Act of ing market. Princeton Bank controls 7.7 mission’s rules of practice and procedure, 1956 (12 U.S.C. 1842(a) <1)) and § 222.3 percent of commercial bank deposits and an investigation is hereby instituted to (a) of Federal Reserve Regulation Y (12 is the fourth largest bank in the Trenton determine the justification of the protest CFR 222.3 (a)), an application by Ameri­ banking market, which is approximated by the cities and, if necessary, to pre­ can Holding Corporation of New Jersey, by Mercer County, plus the communities scribe such relief as is appropriate within Princeton, N.J., for the Board’s prior ap­ adjacent to Mercer County located in the boundaries of the Federal Power Act. proval of action to become a bank hold­ Hunterdon, Somerset, Middlesex, Mon­ (B) Inasmuch as cities’ allegations are ing company through the acquisition of mouth, and Burlington Counties in New directed to Louisiana Power and Light 100 percent of the voting shares (less Jersey and Bucks County in Pennsyl­ Co. and Central Louisiana Electric Co., directors’ qualifying shares) of the suc­ vania. (Banking data concerning market as well as to Gulf States Utilities Co., cessor by merger to American National control and size are as of June 30,1971.) these public utilities are named parties Bank & Trust, Montclair, N.J. (Ameri­ American Bank and Princeton Bank do to this proceeding. A copy of the cities’ can Bank), and 100 percent of the voting not compete with each other to any sig­ complaint shall be served on Louisiana shares of Princeton Bank and Trust Co., nificant extent, and the development of Power and Light Co. and Central Loui­ Princeton, N.J. (Princeton Bank). such competition in the future appears siana Electric Co. and their response As required by section 3(b) of the Act, unlikely. The nearest offices of the two thereto shall be filed with the Commis­ the Board gave written notice of receipt banks are 28 miles apart, and New Jersey sion within 15 days from the date of is­ of the application to the Comptroller of law prohibits either bank from branching suing this order. the Currency and the Commissioner of or merging across Banking District lines. (C) A ny person desiring to be heard Banking of the State of New Jersey. The It appears that the affiliation of the two or to make any protest with reference Comptroller offered no objection to ap­ banks in a holding company would not to the matters presented in this proceed­ proval of the application and the Com­ have any adverse effects on other banks ing should, on or before December 1, missioner recommended approval. in the Newark or Princeton markets, and 1971, file with the Federal Power Com­ Notice of receipt of the application was may promote competition in the Prince­ mission, Washington, D.C. 20426, peti­ published in the F ederal R eg ister on ton market by enabling Princeton Bank tions to intervene or protests in accord­ September 18, 1971 (36 F.R. 18686), pro­ to become a more effective competitor. ance with the requirements of the viding an opportunity for interested per­ On the basis of the record before it, the Commission’s rules of practice and sons to submit comments and views with Board concludes that consummation of procedure (18 CFR 1.8 and 1.10) . All pro­ respect to the proposal. A copy of the the proposal would not have an adverse tests filed with the Commission will be application was forwarded to the U.S. effect on competition in any relevant considered by it in determining the ap­ Department of Justice for its considera­ area. propriate action to be taken but will not tion. Time for filing comments and views The financial and managerial re­ serve to make the protestants parties to has expired and all those received have sources of each bank appears satis­ the proceeding. Persons wishing to par­ been considered. factory. It appears that applicant would ticipate as a party in any hearing herein The Board has considered the appli­ begin operations in satisfactory condition must file petitions to intervene in ac­ and with competent management. Appli­ cordance with the Commission’s rules. cation in the light of the factors set forth in section 3(c) of the Act, includ­ cant’s future prospects, which are largely (D) The cities shall file with the Com­ ing the effect of the proposed acquisi­ dependent upon those of its two subsid­ mission and serve on all parties to the tion on competition, the financial and iaries, also appear favorable. Although proceeding, including the Staff of the managerial resources and future pros­ there is no evidence that the existing Commission, direct testimony and ex­ pects of the applicant and the banks con­ banking needs of the communities in­ hibits in support of its allegations on or cerned, and the convenience and needs of volved are not being met, affiliation oi before January 3,1972. the communities to be served, and finds Princeton Bank in the holding company (E) A public hearing on the issues that: would enable it to increase its lending presented will be held in a hearing room Applicant is a newly organized corpo­ limit and offer a wider range of spe­ of the Federal Power Commission, 441 G cialized banking services. These consid­ Street N W „ Washington, DC, commenc­ ration. Consummation of this proposal herein would result in applicant con­ erations relative to the convenience ana ing at 10 a.m. (e.s.t.), on February 8, trolling $418.9 million in deposits, rep­ needs of the communities to be served 1972. resenting 2.8 percent of total commercial lend some weight toward approval. It is By the Commission. bank deposits in the State, and appli­ the Board’s judgment that the proposed transaction is in the public interest and [ s e a l ] K e n n e t h F . P l u m b , cant would become the ninth largest Secretary. banking organization and the seventh should be approved. largest bank holding company in New It is hereby ordered, On the basis of [FR Doc.71-16594 Filed 11-12-71;8:45 am ] Jersey. (Unless otherwise noted, all bank­ the record, that said application be and ing data are as of December 31, 1970, hereby is approved for the reasons sum­ adjusted to reflect holding company for­ marized above: Provided, That the ac­ FEDERAL RESERVE SYSTEM mations and acquisitions approved by tion so approved shall not be consum­ the Board through September 30, 1971.) mated (a) before the 30th calendar day AMERICAN HOLDING CORPORATION American Bank ($341.4 million de­ following the date of this order, or ( OF NEW JERSEY posits), the 12th largest bank in New later than 3 months after the date of this Jersey, has 32 banking offices and oper­ Order Approving Action To Become ates throughout the First Banking Dis­ order, unless such period is extended for Bank Holding Company trict. American Bank operates primarily good cause by the Board or by the Fe in the Newark banking market, which eral Reserve Bank of New York pursuan In the matter of the application of to delegated authority. American Holding Corporation of New is approximated by Essex County, a small

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 NOTICES 21769

By order of the Board of Governors,1 State’s other banking organizations CONNECTICUT BANK AND TRUST CO. November 9,1971. would remain unchanged. Bank ($12.3 million deposits), one of Order Approving Application for [ se al] T y n a n S m it h , Secretary of the Board. the smaller banks in the Kansas City Merger of Banks Under Bank banking market, is the eighth largest of Merger Act [PR Doc.71-16596 Piled 11-12-71;8:45 am] 11 banks in its primary service area, which is approximated by a 25-square- In the matter of the application of mile area just south of downtown the Connecticut Bank and Trust Co., COMMERCE BANCSHARES, INC. Kansas City. Applicant’s lead bank, Hartford, Conn., for approval to merge Commerce Bank of Kansas City, is lo­ with the North Side Bank and Trust Co., Order Approving Acquisition of Bank Bristol, Conn. Stock By Bank Holding Company cated downtown 6 miles from Bank, and its service area fully encompasses On November 5, 1970, the Board of In the matter of the applicatoin of that of Bank. Such factors would usually Governors issued an order denying the Commerce Bancshares, Inc., Kansas City, indicate that competitive considerations application of the Connecticut Bank and Mo., for approval of acquisition of more would weigh for denial of the applica- Trust Co. for prior approval of a merger than 80 percent of the voting shares of cation; however, other facts in the rec­ with the North Side Bank and Trust Co. Blue Hills Bank of Commerce, Kansas ord provide evidence that there is no pursuant to the Bank Merger Act (12 City, Mo. meaningful competition between Bank U.S.C. 1828(c)), and, incident thereto, There has come before the Board of and any of applicant’s subsidiary banks. for approval under section 9 of the Fed­ Governors, pursuant to section 3(a) (3) Shareholders of applicant control ap­ eral Reserve Act (12 U.S.C. 321) of the of the Bank Holding Company Act of proximately 78 percent of Bank’s stock. establishment of branches. 1970 Federal 1956 (12 U.S.C. 1842(a) (3)) and § 222.3 This close relationship ha« existed since Reserve Bulletin 826. (a) of Federal Reserve Regulation Y (12 Bank’s inception, and it appears that On June 25, 1971, the Board granted CFR 222.3(a)), an application by Com­ the relationship would continue to exist a request for reconsideration filed with merce Bancshares, Inc., Kansas City, Mo., regardless of the Board’s action on the the Board by the Connecticut Bank and a registered bank holding company, for present application. Additionally, Bank, Trust Co. The request for reconsidera­ the Board’s prior approval of the acqui­ which has experienced slow growth dur­ tion, which was filed pursuant to § 262.3 (f) (6) of the Board’s rules of procedure sition of more than 80 percent of the ing the last several years, has not been voting shares of Blue Hills Bank of Com­ an effective competitor to the other area (12 CFR 262.2(f)(6)), was granted be­ merce, Kansas City, Mo. (Bank). banks due to its small size. On the basis cause the request presented relevant facts (concerning the relevant market in As required by section 3(b) of the Act, of the foregoing, the Board concludes that consummation of the proposed ac­ which the banks operate) that, for good the Board gave written notice of receipt cause shown, were not previously pre­ of the application to the Commissioner quisition would not adversely affect com­ petition in any relevant area. sented to the Board, and reconsidera­ of Finance of the State of Missouri and tion otherwise appeared appropriate. requested his views and recommendation. Considerations relating to financial and managerial resources and prospects It is hereby ordered, For the reasons The Commissioner indicated that his set forth in the accompanying state­ office had no objection to approval of the as they relate to applicant and its sub­ sidiaries are satisfactory and consistent ment,1 that the order of November 5, application. 1970, be and hereby is vacated, and Notice of receipt of the application with approval of the application and lend some weight toward approval as they re­ I t is further ordered, That the appli­ was published in the F ederal R eg ister late to Bank, since applicant would be cation be and hereby is approved: Pro­ on August 12, 1971 (36 F.R. 15074), pro­ vided, That the merger so approved shall viding an opportunity for interested per­ able to solve Bank’s management suc­ cession problem by providing it with not be consummated (a) before the 30th sons to submit comments and views with calendar day following the date of this respect to the proposed transaction. A greater management depth. Although the major banking needs of the Bank’s serv­ order or (b) later than 3 months after copy of the application was forwarded to the date of this order, unless such period the U.S. Department of Justice for its ice area are being met by existing insti­ tutions, a portion of that area has ex­ is extended for good cause by the Board, consideration. The time for filing com­ or by the Federal Reserve Bank of Boston ments and views has expired and all perienced economic decline, and appli­ cant intends to assist Bank in offering pursuant to delegated authority. those received have been considered by By order of the Board of Governors,2 the Board. a full range of banking'services, including urban and business development serv­ November 4, 1971. The Board has considered the applica­ ices, in an attempt to revitalize the area. tion in the light of the factors set forth [ s e a l ] T y n a n S m it h , Thus, considerations relating to the con­ Secretary of the Board. in section 3(c) of the "Act, including the venience and needs lend additional [FR Doc.71-16598 Filed 11-12-71:8:45 am] effect of the proposed acquisition on com­ weight toward approval. It is the Board’s petition, the financial and managerial judgment that the proposed transaction resources of the applicant and the banks would be in the public interest, and that HURON COUNTY BANKING CO. concerned, and the convenience and the application should be approved. needs of the communities to be served. It is hereby ordered, On the basis of Order Approving Application for Upon such consideration, the Board finds the record, that said application be and Merger of Banks Under Bank that: hereby is approved for the reasons sum­ Merger Act Applicant, the third largest bank hold­ marized above: Provided, That the ac­ In the matter of the application of ing company and third largest banking tion so approved shall not be consum­ organization in Missouri, controls 19 The Huron County Banking Co., Nor­ mated (a) before the 30th calendar day walk, Ohio, for approval of merger with banks with aggregate deposits of $880.8 following the date of this order, or (b) million, representing 7.7 percent of the the Savings and Loan Banking Co., New later than 3 months after the date of London, Ohio. total commercial bank deposits in the this order, unless such period is extended State. (AH banking data are as of Decem­ There has come before the Board of for good cause by the Board, or by the Governors, pursuant to the Bank Merger ber 31, 1970, adjusted to reflect bank Federal Reserve Bank of Kansas City holding. company formations and acqui­ pursuant to delegated authority. sitions approved by the Board through 1 Filed as part of the original document. August 31,1971.) Upon consummation of By order of the Board of Governors,1 Copies available upon request to the Board November 9,1971. of Governors of the Federal Reserve System, the proposal herein, applicant’s share of Washington, D.C. 20551, or to the Federal deposits in the State would increase only [ s e a l ] T y n a n S m it h , Reserve Bank of Boston. Dissenting state­ slightly, and its position relative to the Secretary of the Board. ment of Governors Robertson, Maisel, and [P R Doc.71-16597 Piled 11-12-71:8:45 am ] Brimmer filed as part of the original docu­ ment and available upon request. 1 Voting for this action: Chairman Burn! 1 Voting for this action: Chairman Birr ns 2 Voting for this action: Chairman Burns and Governors Mitchell, Daane, Maisel and Governors Mitchell, Daane, Maisel, Brim­ and Governors Mitchell, Daane, and Sherrill. Brimmer, and Sherrill. Absent and not vot- mer, and Sherrill. Absent and not voting: Voting against this action: Governors Rob­ mg: Governor Robertson. Governor Robertson. ertson, Maisel, and Brimmer.

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 21770 NOTICES

Act (12 U.S.C. -1828(c)), an application banks and the resulting bank are satis­ 3. To execute loan authorizations for by the Huron County Banking Co., Nor­ factory and consistent with approval of central, regional, and district office ap­ walk, Ohio (Norwalk Bank), a member the application. Considerations relating proved loans and disaster loans approved State bank of the Federal Reserve Sys­ to the convenience and needs of the com­ under delegated authority, said execution tem, for the Board’s prior approval of munity lend some weight toward ap­ to read as follows: the merger of that bank with the Savings proval since the merger would increase “ (Nam e), Administrator and Loan Banking Co., New London, Ohio the lending limit of New London Bank. By ------(New London Bank), under the charter New London Bank would, as a result, be Manager, Disaster Branch and name of Huron Bank. As an incident able to serve more adequately the credit Office (No. 849) ” needs of the New London community. to the merger the present office of New 4. To cancel, reinstate, modify, and London Bank would become a branch of Based upon the foregoing, it is the Board’s judgment that consummation of amend authorizations for disaster loans Norwalk Bank. Notice of the proposed approved under delegated authority. merger, in form approved by the Board, the proposal would be in the public in­ has been published as required by said terest and that the application should be 5. To disburse unsecured disaster Act. approved. loans. In accordance with the Act, the Board I t is hereby ordered, On the basis of 6. To extend the disbursement period requested reports on competitive factors the record, that said application be and on disaster loan authorizations or undis­ involved from the Attorney General, the hereby is approved for the reasons sum­ bursed portions of disaster loans, Comptroller of the Currency, and the marized above, provided that the action n . The authority delegated herein may Federal Deposit Insurance Corporation. so approved shall not be consummated not be redelegated. The Board has considered all relevant (a) before the 30th calendar day fol­ H I. All authority delegated herein to material contained in the record in the lowing the date of this order or (b) later a specific position may be exercised by light of the factors set forth in the Act, than 3 months after the date of this an SBA employee designated as acting in including the effect of the proposal on order, unless such period is extended for that position. competition, the financial and mana­ good cause by the Board or by the Fed­ gerial resources and prospects of the eral Reserve Bank of Cleveland pursuant Effective date: September 20,1971. banks concerned, and the convenience to delegated authority. R u s s e l l H a m il t o n , Jr., and needs of the communities to be By order of the Board of Governors,1 Regional Director, served, and finds that: November 9, 1971. Bala Cynwyd, Pa. Norwalk Bank, with deposits of $32 [FR Doc.71-16593 Filed 11-12-71:8:45 am] million, and two banking offices, is lo­ [ s e a l ] T y n a n S m it h , cated in Huron County and operates in Secretary of the Board. the Sandusky banking market which [FR Doc.71-16599 Filed 11-12-71;8:45 am] consists of all of Erie County and the INTERSTATE COMMERCE northern portion of Huron County. Nor­ walk Bank is the fourth largest of 13 COMMISSION banks headquartered in the Sandusky SMALL BUSINESS banking market, holding 11.1 percent of ASSIGNMENT OF HEARINGS the deposits in that market. (All banking ADMINISTRATION N o vem ber 10,1971. data are as of December 31, 1970.) New [Delegation of Authority No. 4.4-1 (Region London Bank, with deposits of $9 mil­ I I I ) , Disaster No. 849] Cases assigned for hearing, postpone­ lion, operates its sole office in New Lon­ ment, cancellation or oral argument ap­ don. New London Bank, although located MANAGER, DISASTER BRANCH pear below and will be published only in Huron County, operates in a separate OFFICE, PHILADELPHIA once. This list contains prospective as­ banking market consisting of New Lon­ Delegation of Authority signments only and does not include don and its immediate surroundings. The cases previously assigned hearing dates. nearest offices of Norwalk Bank to New 1. Pursuant to the authority delegated The hearings will be on the issues as London Bank are 17 miles distant from to the Regional Director by Delegation of presently reflected in the Official Docket one another. Although there are no Authority No. 4.4 (Revision 1) (36 F.R. of the Commission. An attempt will be banking offices in the territory between 7291), the following authority is hereby made to publish notices of cancellation New London and Norwalk, there are of­ redelegated to the position as indicated of hearings as promptly as possible, but fices of other banks which provide al­ herein: interested parties should take appropri­ ternative banking services to residents A. Manager, (Philadelphia, Pa.) Dis­ ate steps to insure that they are notified of New London and which are located aster Branch Office. 1. To decline direct closer to New London Bank than is Nor­ disaster and immediate participation dis­ of cancellation or postponements of walk Bank. aster loans in any amount and to approve hearings in which they are interested. There is no substantial existing com­ such loans up to the total SBA funds of FD 26630 Sub 1, Baltimore & Eastern Rail­ petition between New London Bank and (a) $50,000 per household for repairs or road Co., assigned November 15, 1971, at Norwalk Hank. Although Norwalk Bank replacement of the home and/or not to Denton, MD, is canceled. could branch de novo into the New Lon­ exceed an additional $10,000 allowable MC 126537 Sub 23, Kent I. Turner, Kenneth don banking market, substantial poten­ for household goods and personal items, E. Turner & Ervin L. Turner a partner­ but in no event may the money loaned ship doing business as Turner Expediting tial competition would not be foreclosed Service now assigned January 19, 1972, at by consummation of this proposal be­ exceed $55,000 for a single disaster on Louisville, Ky., a hearing room to be desig­ cause of the small size of New London home loans, except for funds to refinance nated later. Bank and because of the rural nature prior liens or mortgages, which may be MC 112304 Sub 46, Ace Doran Hauling & and modest growth prospects of the New approved in addition to the foregoing Rigging, now assigned January 17, 1972, a London area which make branching into limits for amounts up to $50,000; and (b) Louisville, Ky., a heading room to be desig- that market by Norwalk Bank unlikely. $350,000 on disaster business loans ex­ aated later. Consummation of the proposed trans­ cept to the extent of refinancing of a ) 26525, Chicago Milwaukee, St. Paul & action would not result in a substantial previous SBA disaster loan. Pacific Railroad Co.—Trackage Rights-— increase in concentration levels in any 2. To approve disaster guaranteed Louisville & Nashville Railroad Co. Be­ tween Bedford, Ind., and New Albany, ina.> relevant area. Based upon all the facts loans up to an SBA guarantee of $350,000 Also over Kentucky & Indiana Termm revealed in the record, the Board con­ and to decline such loans in any amount. Railroad Co., Between New Albany, ma-. cludes that the merger would not have and Louisville, Ky. FD 26526, Chicago waukee, St. Paul & Pacific Railroad Co, an adverse effect on competition in any 1 Voting for this action: Chairman Burns relevant area. and Governors MitcheU, Daane, Maisel, Brim­ Assumption of obligation and liability, assigned January 24, 1972, at Loifisviue, The financial and managerial resources mer and Sherrill. Absent and not voting: Ky., a hearing room to be designated la and future prospects of the merging Governor Robertson.

FEDERAL REGISTER. VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 NOTICES 21771

MC 113459 Sub 68, H . J . Jeffries Truck Line, Tariff—Supplement 124 to Texas- Inc., assigned December 2, 1971, in Room W. Va., to Sayreville, N.J.; and (2) from 1430, Federal Building, 1961 Stout Street, Louisiana Freight Bureau, agent, tariff Sayreville, N.J., to Auburn, N.Y., for 180 Denver, CO. ICC 998. Rates are published to become days. Supporting shipper: Richard G. MC-C 7598, Brown Transport Corp. v. Ter­ effective on December 15,1971. Ingersoll, Traffic Manager, Essex Chem­ minal Transport Co., Inc., assigned Jan­ By the Commission. ical Corp., 1401 Broad Street, Clifton, uary 17, 1972, at Atlanta, Ga., hearing NJ 07102. Send protests to: William L. room to be designated later. I s e a l ] R obert L. O s w a l d , Hughes, District Supervisor, Interstate MC 72442 Sub. 35, Akers Motor Lines, Inc., Secretary. Commerce Commission, Bureau of Oper­ assigned February 14, 1972, at Atlanta, Ga., in a hearing room to be later designated. [F R Doc.71-16619 Filed 11-12-71;8:47 am] ations, 814-B Federal Building, Balti­ MC 27965 Sub. 3, Davis Transportation Co., more, Md. 21201. Inc., assigned February 24, 1972, at Boston, [Notice 394] No. MC 97310 (Sub-No. 8 TA), filed Mass. November 1, 1971. Applicant: BELL MC 115162 Sub. 223, Poole Truck Line, Inc., MOTOR CARRIER TEMPORARY assigned February 22,1972, at Boston, Mass. TRANSFER COMPANY, INC., Post Of­ MC 119777 Sub. 208, Ligon Specialized Hauler, AUTHORITY APPLICATIONS fice Box 5636, Meridian, Miss. 39301. Ap­ Inc., assigned January 10, 1972, at the plicant’s representative: Jerry H. Blount N o v em ber 8,1971. Offices of the Interstate Commerce Com­ (same address as above). Authority mission, Washington, D.C. The following are notices of filing of sought to operate as a common carrier, MC 124211 Sub. 179, Hilt Truck Line, Inc., applications for temporary authority un­ by motor vehicle, over regular routes, Now assigned November 29,1971, at Omaha, der section 210a(a) of the Interstate transporting: General commodities, ex­ Nebr. canceled and application dismissed. Commerce Act provided for under the cept classes A and B explosives, house­ MC-F 10831, Engel Trucking, Inc.— Control new rules of Ex Parte No. MC-67 (49 CFR & Merger— M and M Heavy Haulers Corp., hold goods as defined by the Commis­ Part 1131), published in the F ederal R eg­ now being assigned hearing January 4,1972, sion, commodities in bulk', and those re­ is t e r , issue of April 27, 1965, effective at the Offices of the Interstate Commerce ■ quiring special equipment, (1 ). between Commission, Washington, D.C. July 1, 1965. These rules provide that Marion and Birmingham, Ala., and in­ protests to the granting of an application cluding points in Adamsville, Mulga, [ s e a l] R o bert L. O s w a l d , must be filed with the field official named Westfield, Woodward, Bessemer, Docena, Secretary. in the F ederal R e g ister publication, Edgewater, Dolomite, Fairfield, Brighton, [FR Doc.71-16620 Filed 11-12-71;8:47 am ] within 15 calendar days after thé date Bay View, Pleasant Grove, Hueytown, of notice of the filing of the application Midfield, Lipscomb, Shannon, Ishkooda, is published in the F ederal R e g ist e r . Vestavia Hills, Irondale, Alton, Tarrant FOURTH SECTION APPLICATIONS One copy of such protests must be served City, Watson, Leeds, Brookside, Oxmoor, FOR RELIEF on the applicant, or its authorized rep­ Smythe, Spaulding, Homewood, Overton, resentative, if any, and the protests must N o v em ber 10,1971. Center Point, Fultondale, Trussville, certify that such service has been made. Pinson, Pelham Redding, Megalla, Moun­ Protests to the granting of an applica­ The protests must be specific as to the tain Brook, Weems, Sayreton, Argo, Gar- tion must be prepared in accordance with service which such protestant can and dendale, Huffman, and Wenonah, lo­ Rule 1100.40 of the general rules of will offer, and must consist of a signed cated within 15 miles of Birmingham, practice (49 CPR 1100.40) and filed with­ original and six copies. Ala., from Marion over Alabama High­ in 15 days from the date of publication A copy of the application is on file, way 5, thence over U.S. Highway 11 and of this notice in the F ederal R e g ist e r . and can be examined at the Office of the Interstate Highways 20 and 59 to Bir­ L o n g - a n d -S h o r t H a u l Secretary, Interstate Commerce Commis­ mingham, and return over the same sion, Washington, D.C., and also in field route, serving all intermediate points; FSA No. 42302— Class and commodity office to which protests are to be trans­ (2) between Greensboro and Tuscaloosa, rates between points in Texas. Filed by mitted. Ala., from Greensboro over Afabama Texas-Louisiana Freight Bureau, agent M otor C arriers o p P r o p e r t y Highway 69 to Tuscaloosa, and return (No. 651), for interested rail carriers. over the same route, serving all inter­ Rates on imitation sour cream and vari­ No. MC 9050 (Sub-No. 31 TA), filed mediate points; (3) between Greensboro ous commodities, in carloads and tank October 26, 1971. Applicant: SEEGER and Eutaw, Ala., from Greensboro over carloads, as described in the application, BROS., Hillside Avenue, Kenvil, N.J. Alabama Highway 14 to Eutaw and re­ from, to, and between points in Texas, 07847. Applicant’s representative: James turn over the same route, serving all in­ over interstate routes through adjoining J. Farrell, 206 North Boulevard, Belmar, termediate points; (4) between Demopo- States. NJ 07719. Authority sought to operate lis and Tuscaloosa, Ala., from Demopo- Grounds for relief—Intrastate rates as a contract carrier, by motor vehicle, lis over U.S. Highways 43 and 11, to Tus­ and maintenance of rates from and to over irregular routes, transporting: caloosa and return over the same route, points in other States not subject to the Classes A, B, and C explosives, between serving all intermediate points; (5) be­ same competition. McAdory, Ala., on the one hand, and, on tween Eutaw and the intersection of U.S. Tariff— Supplement 124 to Texas- the other, points in Connecticut, Dela­ Highways 11 and 80, near Cuba, Ala., Louisiana Freight Bureau, agent, tariff ware, the District of Columbia, Maine, from Eutaw over U.S. Highway 11 to the ICC 998. Rates are published to become Maryland, Massachusetts, New Hamp­ intersection of U.S. Highway 80 and re­ effective on December 15,1971. shire, New Jersey, Pennsylvania, Rhode turn over the same route, serving all Island, Vermont, Virginia, and West Vir­ intermediate points; A ggregate o p I ntermediates ginia, for 180 days. Supporting shipper: (6) Between the intersection of U.S. FSA No. 42303— Class and commodity Hercules Inc., 910 Market Street, W il­ Highway 80 and Alabama Highway 28 mington, DE 19899. Send protests to: rates between points in Texas. Filed by and Livington, Ala., from the intersec­ District Supervisor Joel Morrows, Bu­ Texas-Louisiana Freight Bureau, agent tion of U.S. Highway 80 and Alabama reau of Operations, Interstate Commerce (No. 652), for interested rail carriers. Highway 28, over Alabama Highway 28 Commission, 970 Broad Street, Newark, Rates on imitation sour cream and vari­ NJ 07102. to Livington and return over the same ous commodities, in carloads and tank route, serving all intermediate points; carloads, as described in the application, No. MC 30887 (Sub-No. 169 TA), filed (7) between Tuscaloosa, Ala., and the in­ from, to, and between points in Texas, October 28, 1971. Applicant: SHIPLEY tersection of Alabama Highway 5 and over interstate routes through adjoining TRANSFER, INC., 49 Main Street, Post U.S. Highway 11 and Interstate High­ States. Office Box 55, Reisterstown, MD 21136. ways 20 and 59; from Tuscaloosa over Grounds for relief—Maintenance of Applicant’s representative: William B. U.S. Highway 11 and Interstate High­ depressed rates published to meet intra­ Eckels (same address as above). Author­ ways 20 and 59 to the intersection of state competition without use of such ity sought to operate as a common car­ Alabama Highway 5, and return over the rates as factors in constructing combina­ rier, by motor vehicle, over irregular same route, serving all intermediate tion rates. routes, transporting: Polypropylene, in points; (8) between Tuscaloosa, and bulk, in tank vehicles, from (1) Neal, Prattville, Ala., from Tuscaloosa over

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 No. 220— Pt. i— - 1 21772 NOTICES

U.S. Highway 82 to Prattville and return as a contract carrier, by motor vehicle, Bureau of Operations, 26 Federal Plaza, over the same route, serving all inter­ over irregular routes, transporting: Pre­ New York, N Y 10007. mediate points; (9) between Selma and pared, processed and packaged meat and No. MC 136119 TA, filed October 29, Maplesville, Ala., from Selma over Ala­ meat products, in refrigerated equipment, 1971. Applicant: D. H. S., INC., 112y2 bama Highway 22 to Maplesville and re­ from Bidwell (Gallia County) and Main Street, Parsons, TN 38363. Appli­ turn over the same route, serving all in­ Xenia (Greene County), Ohio, to Wash­ cant’s representative: R. Connor Wig­ termediate points; and (10) between ington and Pittsburgh, Pa., for 180 days. gins, Jr., 909 100 North Main Building, Catherine, Ala., and the intersection of Supporting shipper: Bob Evans Frams, Memphis, Tenn. 38103. Authority sought Alabama Highway 28 and U.S. Highway 3776 South High Street, Post Office Box to operate as a contract carrier, by mo­ 80; from Catherine over Alabama High­ No. 7863, Station G, Columbus, OH 43207, tor vehicle, over irregular routes, trans­ way 28 to the intersection of U.S. High­ Attention: Mr. Daniel E. Evans, Chair­ porting: Refrigeration and freezer way 80 and return over the same route, man of the Board. Send protests to: equipment, and parts components, at­ serving all intermediate points, for 180 H. R. White, District Supervisor, Inter­ tachments, and accessories therefor, days. N o t e : This authority is restricted state Commerce Commission, Bureau of from the plantsites of Kolpak In­ to traffic originating at, destined to, or Operations, 3108 Federal Office Building, dustries, Inc., at or near Decaturville moving through points in Alabama. Ap­ 500 Quarrier Street, Charleston, WV and Flat Woods, Tenn., to points in the plicant intends to tack this authority 25301. United States (except Alaska and Ha­ with certificate No. MC-97310 and subs No. MC 136114 TA, filed October 29, waii) and materials components, sup­ thereunder and interline at all terminal 1971. Applicant* P. & H. TRANSPORT, plies, parts, attachments, and accessories sites. Supported by: There are approxi­ INC., North 2128 Waterworks Street, used in the manufacture, erection, in­ mately 51 statements attached to the Spokane, W A 99202. Applicaht’s repre­ stallation, shipment, and testing of re­ application, which may be examined here sentative: George R. LaBissoniere, 1424 frigeration and freezer equipment and at the Interstate Commerce Commission Washington Building, Seattle, Wash. parts, components, attachments and in Washington, D.C., or copies thereof 98101. Authority sought to operate as a accessories therefor, from points in the which may be examined at the field office common carrier, by motor vehicle, over United States (except Alaska and Ha­ named below. Send protests to: Alan C. irregular routes, transporting: Lumber, waii) to the plantsite of Kolpak In­ Tarrant, District Supervisor, Bureau of from points in Washington on and east dustries, Inc., at or near Decaturville Operations, Interstate Commerce Com- . of U.S. Highway 97 and points in Idaho and Flat Woods, Tenn., the Service mission, Room 212,145 East Amite Build­ north of the southern boundary of Idaho would be performed pursuant to a con­ ing, JacksonJMiss. 39201. and Lemhi Counties, Idaho, to points in tinuing contract between applicant and No. MC 117765 (Sub-No. 136 TA), Wyoming, North Dakota, South Dakota, Kolpak Industries, Inc., for 180 days. filed October 29, 1971. Applicant: HAHN Nebraska, Minnesota, Iowa, Missouri, Supporting shipper: Kolpak Industries, TRUCK LINE, INC., 5315 Northwest Illinois, Wisconsin, Indiana, Michigan, Inc., Post Office Box 7, Decaturville, Fifth, Post Office Box 75267, Oklahoma Ohio, Pennsylvania, New York, Kansas, Tenn. 38329. Send protests to: Floyd A. City, OK 73107. Applicant’s representa­ and Oklahoma, for 180 days. Supported Johnson, District Supervisor, Interstate tive: R. E. Ragen (same address as by: There are approximately 15 state­ Commerce Commission, Bureau of Op­ above). Authority sought to operate as a ments of support attached to the appli­ erations, 933 Federal Office Building, 167 common carrier, by motor vehicle, over cation, which may be examined here at North Main Street, Memphis, TN 38103. irregular routes, transporting: N on- the Interstate Commerce Commission in By the Commission. frozen preserved foodstuffs, in con­ Washington, D.C., or copies thereof tainers, from the plantsite of Lakeside which may be examined at the field [ s e a l ] R obert L. O s w a l d , Secretary. Packing Co., Plainview, Minn., to points office named below. Send protests to: in Alabama, Arkansas, Kansas, Louisi­ E. J. Casey, District Supervisor, Inter­ [FR Doc.71-16618 Filed 11-12-71:8:47 am] ana, Mississippi, Missouri, Oklahoma, state Commerce Commission, Bureau Tennessee, and Texas, for 180 days. Sup­ of Operations, 6130 Arcade Building, porting shipper: Lakeside Packing Co., Seattle, Wash. 98101. [Rev. S.O. 994; ICC Order 63] E. James Kraska, General Traffic Mana­ No. MC 136118 TA, filed November 1, LOUISVILLE AND NASHVILLE RAIL­ ger, Post Oflice Box 186, Manitowoc, W I 1971. Applicant: CERNI TRANSPOR­ ROAD CO. AND BIRMINGHAM 54220. Send protests to: C. L. Phillips, TATIO N CORP., 18-20 Parsons Boule­ SOUTHERN RAILROAD CO. District Supervisor, Interstate Commerce vard, Whitestone, N Y 11357. Applicant’s Commission, Bureau of Operations, Room representative: Paul J. Keeler, Post Rerouting and Diversion of Traffic 240, Old Post Office Building, 215 North­ Office Box 253, South Plainfield, NJ west Third, Oklahoma City, OK 73102. 07080. Authority sought to operate as a In the opinion of R. D. Pfahler, agent, the Louisville and Nashville Railroad Co. No. MC 128235 (Sub-No. 8 TA ) contract carrier, by motor vehicle, over irregular routes, transporting: Forms or and the Birmingham Southern Railroad (amendment), filed October 12, 1971, Co. are unable to transport certain car­ published F ederal R eg ist e r , October 27, molds, concrete construction, and ma­ terials and equipment used in the in­ load traffic, loaded to excessive dimen­ 1971, amended and republished in part sions, over their lines in the vicinity of as amended this issue. Applicant: stallation and removal of the same, plywood, steel scaffolding, -(1) Between Bessemer, Ala., due to restricted clear­ ALVIN JOHNSON, 137 13th Avenue NE., ances at their normal interchange points. Minneapolis, MN 55413. Applicant’s rep­ the plantsites and warehouses of Symons It is ordered, That: resentative: Earl Hacking, 503 11th Ave­ Manufacturing Co., a division of Sy­ mons Corp., located in Des Plaines, HI., (a) Rerouting traffic. The Louisville nue South, Minneapolis, MN 55415. N ote : and Nashville Railroad Co. and the Bir­ The purpose of this partial republica­ Victor, N.Y., King of Prussia, Pa., Fair- field, N.J., and Baltimore,Md.,. and (2) mingham Southern Railroad Co. being tion is to include the applicant’s repre­ unable to transport certain carload traf­ sentative, which was inadvertently between the warehouse of Symons Man­ fic, loaded to excessive dimensions, over omitted in previous publication. The rest ufacturing Co., a division of Symons their lines in the vicinity of Bessemer, of the application remains as previously Corp., located in Fairfield, N.J., on the Ala., due to restricted clearances at their published. one hand, and, on the other, points in New York, N.Y., points in Nassau, Suf­ normal interchange points, are hereby No. MC 129558 (Sub-No. 4 TA), filed folk, Westchester, Putnam, Dutchess, authorized to reroute or divert such traf­ October 27,1971. Applicant: ROY ROSS, Columbia, Greene, Ulster, Sullivan, fic over any available route to expedite doing business as ROY ROSS TRUCK­ Orange, and Rockland Counties, N.Y., the movement. . . ING COMPANY, 297 Spruce Street, Post for 180 days. Supporting shipper: Sy­ (b) Concurrence of receiving road to Office Box 405, Gallipolis, OH 45631. mons Manufacturing Co., Division of be obtained. The Louisville and Nashville Applicant’s representative: James R. (S ) Symons Corp., 200 East- Touhy Ave­ Railroad Co. shall receive the concur­ Stiverson, Suite 2240, Leveque-Lincoln nue, Des Plaines, IL 60018. Send protests rence of the Birmingham Southern Rau- Tower, 50 West Broad Street, Columbus, to: Anthony Chiusano, District Super­ Knfnro t.hp rpmntinff or diver OH 43215. Authority sought to operate visor, Interstate Commerce Commission, sion is ordered.

FEDERAL REGISTER. VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 NOTICES 21773

(c) In executing the directions of theauthority conferred upon it by the Inter­ ment under the terms of that agreement; Commission and of such agent provided state Commerce Act. and upon the American Short Line Rail­ for in this order, the common carriers in­ (d) This order shall be­ Effective date. road Association; and that it be filed with volved shall proceed even though no con­ come effective at 12:01 a.m., Novem­ tracts, agreements, or arrangements now ber 15, 1971. the Director, Office of the Federal exist between them with reference to the (e) Expiration date. This order shall Register divisions of the rates of transportation expire at 11:59 p.m„ December 31, 1971, Issued at Washington, D.C., Novem­ applicable to said traffic. Divisions shall unless otherwise modified, changed, or ber 8, 1971. be, during the time this order remains in suspended. force, those voluntarily agreed upon by I t is further ordered, That this order I n t e r st a t e C o m m e r c e and between said carriers; or upon fail­ shall be served upon the Association of C o m m is s io n , [ s e a l ] R. D. P f a h l e r , ure of the carriers to so agree, said divi­ American Railroads, Car Service Divi­ Agent. sions shall be those hereafter fixed by the sion, as agent of all railroads subscrib­ Commission in accordance with pertinent ing to the car service and car hire agree­ [FR Doc.71-16621 Filed 11-12-71;8:47 am ]

CUMULATIVE LIST OF PARTS AFFECTED— NOVEMBER

The following numerical guide is a list of parts of each title of the Code of Federal Regulations affected by documents published to date during November.

3 CFR Page 7 CFR— Continued Page 14 CFR Page

P roclamations : P roposed R u l e s — Continued 23------21278 3279 (amended by Proc. 4092) _ 21397 982______21411 25------21278 4091______21329 984______21291 27— ------21278 4092______21397 989______20981, 21599 29------21278 4093______. 21401 1030______20981, 21413 39------21729, 21581, 21668, 21752 1049______20981 65------21280 E x e c u t iv e O r d e r s: 1464______21209 71------21029, N o v . 9,1871 (see PLO 5144) ___ 21036 1701______21522 21030, 21182, 21280-21282, 21403, July 2, 1910 (revoked in part 21582-21584, 21670 by PLO 5144) ______21036 8 CFR 75------21030, 21584-21586, 21670, 21671 June 16,1911 (revoked in part 214______21277 95------21671 by PLO 5144) ______21036 97------21282, 21673 Mar. 21,1917 (revoked in part 9 CFR 103------21183 ______21036 by PLO 5144) 75 ______—______21755 241------20933 Dec. 9,1926 (see PLO 5144) —_ 21036 76 ______20932, 21181 1204------21753 11627 (amended by EO 11630) _ 21023 92______20932 11630______21023 P roposed R u l e s : 101______21579 11631______21575 102______39------21064, 21210 ______21579 47------21414 5 CFR 112______21579 113______21579 71—------21064, 213__ _ 20931, 21577, 21665 114— ______21065, 21211, 21293, 21415, 21416, ______21579 21600, 21601, 21696, 21697, 21763 230______21180 117______21579 225------21601 120______21579 245------21361 6 CFR 132______21579 1245------21068 101_...... 21788 P roposed R u l e s : 201______21790 11______21318 16 CFR 300______76______21652 13______113 „—_____ 21586 21058 251______7 CFR 201______21517 21683 410______20____ _ 309______21414 21518 601—______318______20984 P roposed R u l e s : 722__p ______21751 436______21607 777 __ 10 CFR 796____ 50______. 21579 17 CFR 815_ 140______21580 874__ 240______21178 249______906__ 12 CFR 21178 P roposed R u l e s : 907—_ n______21451 908 210______21403 240—______21525 910_ 20932, 21331, 21751 222______21666 912—_ 225______21666 19 CFR 913_ 545______21025 1------21335 926_ 563______21667 966— 4...... 21025 572______21667 16------21336 1036 _ 1823_ P roposed R u l e s : 1890p__ 269______21212 20 CFR 291______21212 P roposed R u l e s : P roposed R u l e s : 545 ____ 21363 404------21360, 21696 724_____ 546 ____ 21066 780____ 563______21067 913__ 21 CFR 928__ 13 CFR 929___ 3...... 21587 120 ------21332 121------21588 932____ 121 ------21183 130------21026

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 21774 FEDERAL REGISTER

Page 21 CFR—Continued Page 32 CFR— Continued Page 41 CFR 135______21404 11______21153 1-16______21453 135a______21404 12 ______- ______21153 5 A - i______:______21676 135b ______21404, 21405 13 ______21159 5A-2______21406 135c______21184, 21404, 2145214 ______21160 5B-2______:______21407 135e______20938, 21405 15______21161 5B-18______21407 135g------21186 16 ___ 21167 8- 2______21676 146c___ 21186 17 21168 8- 4______21676 146d______21188 18 ______21168 9- 4______21191 146e______21188 19 ______21169 14-1______1__ 20946 148i______20938 22______„______21169 14-2______20947 308______- ____21336 24 ______21174 14-3______20947 420______21189, 21190 25 ______21174 14-6—______20947 14- 7______20947 P roposed R u l e s : 26 ______— 21174 30______— - ______21175 15- 1______20947 3______21688 45 ______21178 15-3______21192 27______20985 61______21339 18-1______21454 31______20985 65 ______21339 18-2______21469 148i______20985 78 ' 21339 18-3______— ____ 21472 191______20985, 20986 87______21178 18-5______21485 311 ______21057 141______21339- 18-6______21485 312 ______21057 187______21339 18-7______21486 275 __ 20944 18-8______21492 22 CFR 713______21519 18-9______21496 42______20939 1467______21339 18-11______21498 121______20939 1806______21178 18-13______- ______21499 123 ______20940 18-15______21500 P roposed R u l e s : 124 _ T______- ___ 20940 18-16______21501, 21588 125 ______20941 1600______t 21216 18-26______21504 126 ______20942 1602 ______21072 18-50____i ______21507 201______21190 1603 ______21072 18-51______21508 1604 ______21072, 21216 18-52______21513 24 CFR 1606______21216 101- 11______21031 1609______21216 101-26______21284 242___ 21674 1611______21072 1914 ______20942, 21408, 21589 1613______- _____ 21216 P roposed R u l e s : 1915 ______20943, 21409, 21590 1617______21072, 21216 101-17______21059 P roposed R u l e s : 1619______21216 101-18______21059 21059 1710______—_ 21043 1621______21072, 21216 101-20______1622______21072 26 CFR 1623 ______21072 42 CFR 1______20944 1624 ______21072 P roposed R u l e s : 1625 ______21072 52______21292 P roposed R u l e s : 1626 ______21072 73______21292, 21696 1 _ „ 20980, 21057, 21206, 21207, 21291 1627 ______21072 1628 ______21072 43 CFR 1630 ______:______21072 28 CFR 4______21284, 21756 1631 ______21072 50______21028 24______21034 1632 ______21072 2780_____1".______21677 1642______21072 29 CFR 3100______- ______21035 1655______21072 55______21282, 21337 1660-...... 21072, 21294 P u b l ic L an d O rd er s: 782______21778 5116______21591 21195 P roposed R u l e s : 5142.______32A CFR 5143 ______21036 1904______21687 21036 OEP (Ch. I ) : 5144 ______30 CFR ES Reg. r______— 21761 P roposed R u l e s : 25______21207 75 21756 Circ. 25___ i ______21598 21610 Circ. 26______21761 3000______siZIZ-Z_____-_____-____21405 3045______21610 Ch. X ______21284 21610 P roposed R u l e s : 3104______3200______21610 270______21610 33 CFR 110______21756 45 CFR 31 CFR 117______21359, 21590 _____ 21520 405______21338 213______208______21190 249 ______21409, 21591 _____ 21591 P roposed R u l e s : 250 ______32 CFR 117______21063, 21763 801______- ______20949 1 21120 199______21523 P roposed R u l e s : 2 ______21128 170______21600 3 ______21128 36 CFR 4 _ 21131 7______20945, 21666 46 CFR 5 21133 2______21196 6 21136 146______21196, 21284 7 _ 2113938 CFR 3 P roposed R u l e s : 8 _ 21152 20945 __ 21524 17 542______9 _ 21152 ______21030 ____21524 10 _L______21153 21______21406 546______- _____ FEDERAL REGISTER 21775

47 CFR Page 4 9 CFR Page 49 CFR-—Continued Page

.1 ______— ______21677 171 ______21201 P roposed R u l e s ;— Continued 21______21677 172 ______21201, 21287 192______21698 73 ______21197,21592 173— ______21201, 21287, 21339, 21343 195______21211 74 ______21677 174 ______21201, 21202 566______20987 81______20956 175 _— ______— ______21201 1047 ______21071 83______20970 177 ______21201, 21202 1048 ------21524 85______— ______20977 178 ______21202, 21287 1115______21698 89______21200, 21677 179 ___ ;______21339, 21343 1252----- ^______21610 91______21200, 21677 566______20977 93------21200, 21677 571______21355, 2159450 CFR 95------______21677 1033______— 21203, 21452 1048______21452 28— 1------21203 P roposed R u l e s : 32 ------21203, 21597 1056______21358 73 _____ — 21066, 21293, 21602 33 ------21407, 21520, 21597, 21598 1062______._____ 21596 74 ______20988 260------21037 81______— ______21602 P roposed R u l e s : P roposed R u l e s : 83___...... ______21602 173______21360 32------21411

LIST OF FEDERAL REGISTER PAGES AND DATES— NOVEMBER

Pages Date Pages Date 20925-21016______Nov. 2 21393-21442______9 21017-21112______„______3 21443-21567______10 21113-21270______4 21569-21658— ______11 21271-21321_____ 5 21659-21745______12 21323-21391 ______6 21747-21799____ 13

SATURDAY, NOVEMBER 13, 1971

DEPARTMENT OF LABOR

Wage and Hour Division

Exemption from Maximum Hours

Provisions for Certain Employees of Motor Carriers 21778 RULES AND REGULATIONS (b) The interpretations contained in the Motor Carrier Act to establish qual­ Title 29— LABOR this part indicate, with respect to the ifications and maximum hours of serv­ scope and applicability of the exemption ice with respect to him. It is not mate­ Chapter V— Wage and Hour Division, provided by section 13(b) (1) of the Fair rial whether such qualifications and Department of Labor Labor Standards Act, the construction of maximum hours of service have actually the law which the Secretary of Labor and been established by the Secretary of SUBCHAPTER B— STATEMENTS OF GENERAL POL­ the Administrator believe to be correct in Transportation; the controlling consid­ ICY OR INTERPRETATION NOT DIRECTLY RE­ the light of the decisions of the courts, eration is whether the employee comes LATED TO REGULATIONS the Interstate Commerce Commission, within his power to do so. The exemp­ PART 782— EXEMPTION FROM MAXI­ and since October 15, 1966, its successor, tion is not operative in the absence of MUM HOURS PROVISIONS FOR the Secretary of Transportation, and such power, but an employee with re­ spect to whom the Secretary of Trans­ CERTAIN EMPLOYEES OF MOTOR which will guide them in the perform­ ance of their administrative duties under portation has such power is excluded, CARRIERS the act unless and until they are other­ automatically, from the benefits of sec­ Part 782 of Title 29 of the Code of wise directed by authoritative decisions tion 7 of the Fair Labor Standards Act. Federal Regulations is hereby revised to of the courts or conclude upon reexami­ (Southland Gasoline Co. v. Bayley, 319 adapt it to the changes made by the “De­ nation of an interpretation that it is U.S. 44; Boutell v. Walling, 327 U.S. 463; partment of Transportation Act,” Public incorrect Levinson v. Spector Motor Service, 330 Law 89-670 (80 Stat. 931 et seq.) (49 (c) Public Law 89-670 (80 Stat. 931) U.S. 649; Pyramid Motor Freight Corp. U.S.C. 1651 et seq.), in which certain transferred to and vested in the Secre­ v. Ispass, 330 U.S. 695; Morris v. Mc- functions were transferred from the In­ tary of Transportation all functions, Comb, 332 U.S. 422) terstate Cbmmerce Commission to the powers, and duties of the Interstate (b) Section 204 of the Motor Carrier Department of Transportation and Commerce Commission (1) under sec­ Act, 1935, provides that it shall be the which amended section 13(b)(1) of the tion 204 (a) (1) and (a) (2) to the extent duty of the Interstate Commerce Com­ Fair Labor Standards Act to conform to they relate to qualifications and maxi­ mission (now that of the Secretary of this transfer of functions. The format mum hours of service of employees and Transportation (see § 782.0(c)) to reg­ ulate common and contract carriers by also is amended to incorporate into the safety of operations and equipment, and text many references heretofore set (2) under section 204(a) (5) of the Motor motor vehicle as provided in that act, forth as footnotes including additional Carrier Act. The interpretations con­ and that “ to that end the Commission may establish reasonable requirements citations. tained in this part are interpretations on which reliance may be placed as pro­ with respect to * * * qualifications and The administrative procedure provi­ maximum hours of service of employees, sions of 5 U.S.C. 553 which require no­ vided in section 10 of the Portal-to- Portal Act (Public Law 49, 80th Cong., and safety of operation and equipment.” tice of proposed rule making, opportunity (Motor Carrier Act, sec. 204(a) (1), (2), for public participation, and delay in first sess. (61 Stat. 84), discussed in Part 790, statement on effect of Portal-to- 49 U.S.C. sec. 304(a) (1), (2)) Section effective date are not applicable because 204 further provides for the establish­ these are interpretive rules. I do not be­ Portal Act of 1947), so long as they re­ main effective and are not modified, ing of similar regulations with respect lieve such procedures will serve a useful amended, rescinded, or determined by to private carriers of property by motor purpose here. Accordingly, this amend­ judicial authority to be incorrect. vehicle, if need therefor is found. (Motor ment revising Part 782 shall become ef­ Carrier Act, sec. 204(a)(3), 49 U.S.C. fective immediately. § 782.1 Statutory provisions considered. sec. 304(a) (3)) The revised 29 CFR Part 782 reads as (a) Section 13 (b) (1) of the Fair Labor (c) Other provisions of the Motor follows: Standards Act provides an exemption Carrier Act which have a bearing on the Sec. from the maximum hours and overtime scope of section 204 include those which 782.0 Introductory statement. requirements of section 7 of the act, define common and contract carriers by 782.1 Statutory provisions considered. but not from the minimum wage re­ motor vehicle, motor carriers, private 782.2 Requirements for exemption in gen­ quirements of section 6. The exemption carriers of property by motor vehicle eral. is applicable to any employee with re­ (Motor Carrier Act, sec. 203(a) (14), 782.3 Drivers. spect to whom the Secretary of Trans­ (15), (16), (17), 49 U.S.C. sec. 303(a) 782.4 Drivers’ helpers. portation has power to establish quali­ (14), (15), (16), (17)) and motor vehi­ 782.5 Loaders. cle (Motor Carrier Act, sec. 203(a) (13)); .782.6 Mechanics. fications and maximum hours of service 782.7 Interstate commerce requirements of pursuant to the provisions of section those which confer regulatory powers exemption. 204 of the Motor Carrier Act of 1935. with respect to the transportation of 782.8 Special classes of carriers. (Part I I of the Interstate Commerce Act, passengers or property by motor car­ riers engaged in interstate or foreign Authority : The provisions of this Part 782 49 Stat. 546, as amended; 49 U.S.C. 304, issued under 52 Stat. 1060, as amended; 29 as amended by Public Law 89-670, sec­ commerce (Motor Carrier Act, sec. 202 U.S.C. 201 et seq. tion 8e which substituted “ Secretary of (a)), as defined in the Motor Carrier Transportation” for “Interstate Com­ Act, sec. 203(a) (10), (11), and reserve § 782.0 Introductory statement. merce Commission”—Oct. 15, 1966) ex­ to each State the exclusive exercise of the (a) Since the enactment of the Fair cept that the exemption is not applica­ power of regulation of intrastate com­ Labor Standards Act of 1938, the views of ble to any employee with respect to whom merce by motor carriers on its high­ the Administrator of the Wage and Hour the Secretary of Transportation has ways (Motor Carrier Act, sec. 202 (b))» Division as to the scope and applicability power to establish qualifications and and those which expressly make section of the exemption provided by section 13 maximum hours of service solely by vir­ 204 applicable to certain transportation (b) (1) of the act have been expressed tue of section 204(a) (3a) of Part n of in interstate or foreign commerce which in interpretations issued from time to the Interstate Commerce Act. (Public is in other respects excluded from reg­ time in various forms. This part, as of the Law 939, 84th Cong., second sess., Aug. ulation under the act. (Motor Carrie date of its publication in the Federal 3, 1956, secs. 2 and 3) The Fair Labor Act, sec. 202 (c)) R egister, supersedes and replaces such Standards Act confers no authority on § 782.2 Requirements for exemption m prior interpretations. Its purpose is to the Secretary of Labor or the Adminis­ general. trator to extend or restrict the scope make available in one place general in­ (a) The exemption of an employee terpretations of the Administrator which of this exemption. It is settled by deci­ will provide “ a practical guide, to em­ sions of the U.S. Supreme Court that the from the hours provisions of the Fan’ ployers and employees as to how the office applicability of the exemption to an em­ Labor Standards Act under section representing the public interest in en­ ployee otherwise entitled to the benefits . 13(b)(1) depends both on the class to forcement of the law will seek to apply of the Fair Labor Standards Act is de­ which his employer belongs and on ® termined exclusively by the existence of it.” (Skidmore v. Swift & Co., 323 U.S. class of work involved in the employee 134) the power conferred under section 204 of

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 RULES AND REGULATIONS 21779

job. The power of the Secretary of Trans­ safety of operation of interstate motor ticular workweeks other duties are as­ portation to establish maximum horns carriers was applied by the Commission, signed to him which result, in those work­ and qualifications of service of em­ it has made it clear that the determina­ weeks, in his performance of activities ployees, on which exemption depends, ex­ tion whether or not an individual em­ directly affecting the safety of operation tends to those classes of employees and ployee is within any such classification of motor vehicles in interstate commerce those only who (1) are employed by car­ is to be determined by judicial process. on the public highways, the exemption riers whose transportation of passengers (Pyramid Motor Freight Corp. v. Ispass, will be applicable to him in those work­ or property by motor vehicle is subject 330 U.S. 695; Cf. Missel v. Overnight weeks, but not in the workweeks when to his jurisdiction under section 204 of Motor Transp., 40 F. Supp. 174 (D. M d.), he continues to perform the duties of the Motor Carrier Act (Boutell v. W al­ reversed on other grounds 126 F. (2d) 98 the non-safety-affecting job. ling, 327 U.S. 463; Walling v. Casale, (C.A. 4), affirmed 316 U.S. 572; West v. (4) Where the same employee of a 51 F. Supp. 520; and see Ex parte Nos. Smoky Mountains Stages, 40 F. Supp. carrier is shifted from one job to another MC-2 and MC-3, in the Matter of 296 (N.D. G a .); Magann v. Long’s Bag­ periodically or on occasion, the applica­ Maximum Hours of Service of Motor gage Transfer Co., 39 F. Supp. 742 (W.D. tion of the exemption to him in a par­ Carrier Employees, 28 M.C.C. 125, 132), Va.); Walling v. Burlington Transp. Co. ticular workweek is tested by application and (2) engage in activities of a char­ (D. Nebr.), 5 W.H. Cases 172, 9 Labor of the above principles to the job or jobs acter directly affecting the safety of op­ Cases par. 62,576; Hager v. Brinks, Inc., in which he is employed in that work­ eration of motor vehicles in the 6 W.H. Cases 262 (N.D. HI.)) In deter­ week. Similarly, in the case of an em­ transportation on the public highways mining whether an employee falls within ployee of a private carrier whose job does of passengers or property in interstate such an exempt category, neither the not require him to engage regularly in or foreign commerce within the meaning name given to his position nor that given exempt safety-affecting activities de­ of the Motor Carrier Act. United States to the work that he does is controlling scribed in subparagraph (1) of this para­ v. American Trucking Assns., 310 U.S. (Pyramid Motor Freight Corp. v. Ispass, graph and whose engagement in such ac­ 534; Levinson v. Spector Motor Service, 330 U.S. 695; Porter v. Poindexter, 158 tivities occurs sporadically or occasion­ 330 U.S. 649; Ex parte No. MC-28, 13 F. (2d) 759 (C.A. 10); Keeling v. Huber ally as the result of his work assignments M.C.C. 481; Ex parte Nos. MC-2 and & Huber Motor Express, 57 F. Supp. 617 at a particular time, the exemption will MC-3, 28 M.C.C. 125; Walling v. Comet (W.D. K y .); Crean v. Moran Transp. apply to him only in those workweeks Carriers, 151 F. (2d) 107 (C.A. 2). Lines (WJD. N.Y.), 9 Labor Cases, par. when he engages in such activities. Also, (b) (1) The carriers whose transpor­62,416 (see also earlier opinion in 54 F. because the jurisdiction of the Secretary tation activities are subject to the Sec­ Supp. 765)); what is controlling is the of Transportation over private carriers retary of Transportation jurisdiction character of the activities involved in is limited to carriers of property (see are specified in the Motor Carrier Act the performance of his job. subparagraph (1) of this paragraph) a itself (see § 782.1). His jurisdiction over (3) As a general rule, if the bona fide driver, driver’s helper, loader, or me­ private carriers is limited by the statute duties of the job performed by the em­ chanic employed by a private carrier is to private carriers of property by motor ployee are in fact such that he is (or, not within the exemption in any work­ vehicle, as defined therein, while his in the case of a member of a group of week when his safety-affecting activities jurisdiction extends to common and con­ drivers, driver’s helpers, loaders, or me­ relate only to the transportation of pas­ tract carriers of both passengers and chanics employed by a common carrier sengers and not to the transportation of property. See also the discussion of spe­ and engaged in safety-affecting occupa­ property. cial classes of carriers in § 782.8. And tions, that he is likely to be) called upon (c) The application of these princi­ see paragraph (d) of this section. The in the ordinary course of his work to ples may be illustrated as follows: U.S. Supreme Court has accepted the perform, either regularly or from time (1) In a situation considered by the Agency determination, that activities of to time, safety-affecting activities of the UJS. Supreme Court, approximately 4 this character are included in the kinds character described in subparagraph (2) percent of the total trips made by drivers of work which has been defined as the of this paragraph, he comes within employed by a common carrier by motor work of drivers, driver’s helpers, loaders, the exemption in all workweeks when vehicle involved the hauling of inter­ and mechanics (see §§ 782.3 to 782.6) he is employed at such job. This general state freight. Since it appeared that the employed by such carriers, and that no rule assumes that the activities involved employer, as a common carrier, was obli­ other classes of employees employed by in the continuing duties of the job in all gated to take such business, and that such carriers perform duties directly af­ such workweeks will include activities any driver might be called upon at any fecting such “safety of operation.’’ Ex which have been determined to affect di­ time to perform such work, which was Parte No. M C-2,11 M.C.C. 203; Ex parte rectly the safety of operation of motor indiscriminately distributed among the No. MC-28, 13 M.C.C. 481; Ex parte No. vehicles on the public highways in trans­ drivers, the Court considered that such MC-3, 23 M.C.C. 1; Ex parte Nos. MC-2 portation in interstate commerce. Where trips were a natural, integral, and ap­ and MC-3, 28 M.C.C. 125; Levinson v. this is the case, the rule applies regard- parently inseparable part of the common Spector Motor Service, 330 U.S. 649; ,less of the proportion of the employee’s carrier service performed by the em­ Pyramid Motor Freight Corp. v. Ispass, time or of his activities which is actually ployer and driver employees. Under these 330 U.S. 695; Southland Gasoline Co. v. devoted to such safety-affecting work in circumstances, the Court concluded that Bayley, 319 U.S. 44. See also paragraph the particular workweek, and the exemp­ such work, which directly affected the m) of tins section and §§ 782.3-782.8. tion will be applicable even in a work­ safety of operation of the vehicles in (2) The exemption is applicable, un­ week when the employee happens to per­ interstate commerce, brought the entire der decisions of the U.S. Supreme Court, form no work directly affecting “safety classification of drivers employed by the to those employees and those only whose of operation.” On the other hand, where carrier under the power of the Inter­ work involves engagement in activities the continuing duties of the employee’s state Commerce'Commission to establish . consisting wholly or in part of a class of job have no substantial direct effect on qualifications and maximum hours of work which is defined (i) as that of a such safety of operation or where such service, so that all were exempt even driver, driver’s helper, loader, or me- safety-affecting activities are so trivial, though the interstate driving of particu­ chanic, and (ii) as directly affecting the casual, and insignificant as to be de mini- lar employees was sporadic and occa­ safety of operation of motor vehicles on mis, the exemption will not apply to him sional, and in practice some drivers would tne public highways in transportation in any workweek so long as there is no not be called upon for long periods to interstate or foreign commerce with- change in his duties. (Pyramid Motor perform any such work. (Morris v. p t“ e yeaning of the Motor Carrier Act. Freight Corp. v. Ispass, 330 U.S. 695; McComb, 332 U.S. 422) nramid Motor Freight Corp. v. Ispass, Morris v. McComb, 332 U.S. 422; Levin­ (2) In another situation, the U.S. U.S. 695 ; Levinson v. Spector Motor son v. Spector Motor Service, 330 U.S. Court of Appeals (Seventh Circuit) held ■m^T6’ U.S. 649; Morris v. McComb, 649; Rogers Cartage Co. v. Reynolds, 166 that the exemption would not apply to r 1 U s - 442. Although the Supreme F. (2d) 317 (C.A. 6); Opelika Bottling truckdrivers employed by a private car­ ourt recognized that the special knowl- Co. v. Goldberg, 299 F. (2d) 37 (C.A. 5); rier on intrastate routes who engaged in no safety-affecting activities of the edge and experience required to deter- Tobin v Mason & Dixon Lines, Inc., 102 dune what classifications of work affects character described above even though F. Supp. 466 (E.D. Tenn.)) I f in par­ other drivers of the carrier on interstate

FEDERAL REGISTER, V O L 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 21780 RULES AND REGULATIONS routes were subject to the jurisdiction Cases 934; Gibson v. Glasgow (Tenn. Sup. 665; Ex parte No. MC-3, 23 M.C.C. 1; of the Motor Carrier Act. The court re­ C t.), 157 S.W. (2d) 814; cf. Morris v. Mc- Ex parte No. MC-4, 1 M.C.C. 1), is an affirmed the principle that the exemption Comb, 332 U.S. 422. See also § 782.1 and individual who drives a motor vehicle in depends not only upon the class to which §§ 782.7-782.8.) transportation which is, within the the employer belongs but also the activi­ (e) The jurisdiction of the Secretary meaning of the Motor Carrier Act, in ties of the individual employee. (Gold­ of Transportation under section 204 of interstate or foreign commerce. (As to berg v. Faber Industries, 291 F. (2d) 232) the Motor Carrier Act relates to safety what is considered transportation in in­ (d) The limitations, mentioned inof operation of motor vehicles only, and terstate or foreign commerce within the paragraph (a,) of this section, on the reg­ “to the safety of operation of such vehi­ meaning of the Motor Carrier Act, see ulatory power of the Secretary of Trans­ cles on the highways of the country, and § 782.7.) This definition does not require portation (as successor to the Interstate that alone.” (Ex parte Nos. MC-2 and that the individual be engaged in such Commerce Commission) under section MC-3, 28 M.C.C. 125,192. See also United work at all times; it is recognized that 204 of the Motor Carrier Act are also States v. American Trucking Assns., 319 even full-duty drivers devote some of limitations on the scope of the exemption. U.S. 534, 548.) Accordingly, the exemp­ their working time to activities other Thus, the exemption does not apply to tion does not extend to employees merely than such driving. “Drivers,” as thus employees of carriers who are not car­ because they engage in activities affecting officially defined, include, for example, riers subject to his jurisdiction, or to the safety of operation of motor vehicles such partial-duty drivers as the follow­ employees of noncarriers such as com­ operated on private premises. Nor does ing, who drive in interstate or foreign mercial garages, firms engaged in the it extend to employees engaged solely in commerce as part of a job in which they business of maintaining and repairing such activities as operating freight and are required also to engage in other types motor vehicles owned and operated by passenger elevators in the carrier’s ter­ of driving or nondriving work: Individ­ carriers, firms engaged in the leasing and minals or moving freight or baggage uals whose driving duties are concerned renting of motor vehicles to carriers and therein or the docks or streets by hand with transportation some of which is in in keeping such vehicles in condition for trucks, which activities have no connec­ intrastate commerce and some of which service pursuant to the lease or rental tion with the actual operation of motor is in interstate or foreign commerce agreements. (Boutell v. Walling, 327 U.S. vehicles. (Gordon’s Transport v. W alling,. within the meaning of the Motor Carrier 463; Walling v. Casale, 51 F. Supp. 520) 162 F. (2d) 203 (C.A. 6), certorari denied Act; individuals who ride on motor vehi­ Similarly, the exemption does not apply 322 U.S. 774; Walling v. Comet Carriers, cles engaged in transportation in inter­ to an employee whose job does not involve 57 F. Supp. 1018, affirmed, 151 F. (2d) state or foreign commerce and act as engagement in any activities which have 107 (C.A. 2), certiorari dismissed, 382 U.S. assistant or relief drivers of the vehicles been defined as those of drivers, drivers’ 819; Gibson v. Glasgow (Tenn. Sup. Ct.), in addition to helping with loading, un­ helpers, loaders, or mechanics, and as 157 S.W. (2d) 814; Ex parte Nos. MC-2 loading, and similar work; drivers of directly affecting the “safety of opera­ and MC-3, 28 M.C.C. 125, 128. See also chartered buses or of farm trucks who tion” of motor vehicles. (Pyramid Motor Pyramid Motor Freight Corp. v. Ispass, have many duties unrelated to driving or Freight Corp. v. Ispass, 330 U.S. 695; 330 U.S. 695; Levinson v. Spector Motor safety of operation of their vehicles in Levinson v. Spector Motor Service, 330 Serv., 330 U.S. 949.) interstate transportation on the high­ U.S. 649; United States v. American (f) Certain classes of employees who ways; and so-called “ driver-salesmen” Trucking Assn., 310 U.S. 534; Gordon’s are not within the definitions of drivers, who devote much of their time to selling Transports v. Walling, 162 F. (2d) 203 drivers’ helpers, loaders, and mechanics goods rather than to activities affecting (C.A. 6 ); Porter v. Poindexter, 158 F. (2d) are mentioned in §§ 782.3-782.6, inclu­ such safety of operation. (Levinson v. 759 (C.A. 10)) Except in so far as the sive. Others who do not come within these Spector Motor Service, 330 U.S. 649; Commission has found that the activities definitions include the following, whose Morris v. McComb, 332 U.S. 422; Rich­ of drivers, drivers’ helpers, loaders, and duties are considered to affect safety of ardson v. James Gibbons Co., 132 F. (2d) mechanics, as defined by it, directly affect operation, if at all, only indirectly; ste­ 627 (C.A. 4), affirmed 319 U.S. 44; Gavril such “ safety of operation,” it has dis­ nographers (including those who write v. Kraft Cheese Co., 42 F. Supp. 702 claimed its power to establish qualifica­ letters relating to safety or prepare acci­ (N.D. 111.); Walling v. Craig, 53 F. Supp. tions or maximum hours of service under dent reports) ; clerks of all classes (in­ 479 (D. M inn.); Vannoy v. Swift & Co. section 204 of the Motor Carrier Act. cluding rate clerks, billing clerks, clerks (Mo. S. C t.), 201 S.W. (2d) 350; Ex parte (Pyramid Motor Freight Corp. v. Ispass, engaged in preparing schedules, and filing No. MC-2, 3 M.C.C. 665; Ex parte No. 330 U.S. 695) “Safety of operation” as clerks in charge of filing accident reports, MC-3, 23 M.C.C. 1; Ex parte Nos. MC-2 used in section 204 of the Motor Carrier hours-of-service records, inspection re­ and MC-3, 28 M.C.C. 125; Ex parte No. Act means “the safety of operation of ports, and similar documents) ; foremen, MC-4, 1 M.C.C. 1. Cf. Colbeck v. Dairy- motor vehicles in the transportation of warehousemen, superintendents, sales­ land Creamery Co. (S.D. Supp. Ct.), 17 passengers or property in interstate or men, and employees acting in an execu­ N.W. (2d) 262, in which the court held foreign commerce, and that alone.” (Ex tive capacity. (Ex parte Nos. MC-2 and that the exemption did not apply to a parte Nos. MC-2 and MC-3 (Conclusions MC-3, 28 M.C.C. 125; Ex parte No. MC- refrigeration mechanic by reason solely of Law No. 1), 28 M.C.C. 125, 139) Thus, 28,13 M.C.C. 481. But see §§ 782.5(b) and of the fact that he crossed State lines in the activities of drivers, drivers’ helpers, 782.6(b) as to certain foremen and super­ a truck in which he transported hunsen loaders, or mechanics in connection with intendents.) Such employees are not to and from the various places at whicn transportation which is not in interstate within the section 13(b) (1) exemption. he serviced equipment belonging to his (Overnight Motor Transp. Co. v. Missel, or foreign commerce within the meaning mployer.) - . of the Motor Carrier Act provide no basis 316 U.S. 572 (rate clerk who performed (b) The work of an employee who is a for exemption under section 13(b)(1) of incidental duties as cashier and dis­ ull-duty or partial-duty “ driver,” as tne the Fair Labor Standards Act. (Walling patcher) ; Levinson v. Spector Motor erm “ driver” is above defined, mrecty v. Comet Carriers, 151 F. (2d) 107 (C.C.A. Service, 330 U.S. 649; Porter v. Poin­ effects “safety of operation” withm tne dexter, 158 F. (2d) 759 (C.A. 10) (checker 2 ); Hansen v. Salinas Valley Ice Co. (Cal. neaning of section 204 of the Motor c ~ App.) 144 P. (2d) 896; Reynolds v. Rogers of freight and bill collector) ; Potashnik, Local Truck System v. Archer (Ark. Sup. 1er Act whenever he drives a motor v Cartage Co., 71 F. Supp. 870 (W.D. K y .), le in interstate or foreign cornine reversed on other grounds, 166 F (d) Ct.), 179 S.W. (2d) 696 (night manager who did clerical work on waybills, filed pi thin the meaning of that net. (Le 317 (C.A. 6); Earle v. Brinks, Inc., 54 F. on v. Spector Motor Service, 330 u.d. day’s accumulation of bills and records, Supp. 676 (S.D. N .Y .); Walling v. Vil- ¡49, citing Richardson v. James Chboonb laume Box & Lumber Co., 58 F. Supp. 150 billed out local accumulation of ship­ ments, checked mileage on trucks and :o., 132 F. (2d) 627 (C.A. 4) , a®1®®“ D. M inn.); Hager v. Brinks, Inc., 11 ¡19 U.S. 44; Morris v. McComb, 33^ u. • Labor Cases, par. 63,296 (N.D. HI.), 6 made written reports, acted as night dis­ 122; Ex parte No MC-28, 13 M.C.C. » W.H. Cases 262; Walling v. DeSoto patcher, answered telephone calls, etc.).) 182, 488; Ex parte Nos. MC-2 and mo- . Creamery & Produce Co., 51 F. Supp. 938 ¡8 M.C.C. 125, 139 (Conclusion of La (D. M inn.); Dallum v. Farmers Coopera­ § 782.3 Drivers. io. 2). See also Ex parte No. MC-2, tive Trucking Assn., 46 F. Supp. 785 (D. (a) A “ driver,” as defined for Motor Æ.C.C. 665; Ex parte No. MC-3,23 M.c. • M inn.); McLendon v. Bewley Mills (N.D. Carrier Act jurisdiction (49 CFR Parts L: Ex Darte No. MC-4, 1 M.C.C. 1.) T e x .); 3 Labor Cases, par. 60,247, 1 W.H. 390-395; Ex parte No. MC-2, 3 M.C.C.

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 RULES AND REGULATIONS 21781

Secretary has power to establish, and has opinion, directly affect the safety of op­ it was not shown that the loading in any established, qualifications and maximum eration of such motor vehicles in inter­ manner affected safety of operation and hours of service for such drivers em­ state or foreign commerce (Ex parte the helpers’ activities were “in no man­ ployed by common and contract carriers Nos. MC-2 and MC-3, 28 M.C.C. 125, ner similar” to those of a driver’s helper of passengers or property and by private 135-136); Assist in loading the vehicles in over-the-road operation).) It should carriers of property pursuant to section (they may also assist in unloading (Ex be noted also that an employee, to be 204 of the Motor Carrier Act. (See Ex parte Nos. MC-2 and MC-3, supra), an exempted as a driver’s “helper” under parte No. M C -4,1 M.C.C. 1; Ex parte No. activity which has been held not to affect the Secretary’s definitions, must be “re­ MC-2, 3 M.C.C. 665; Ex parte No. MC-3, “ safety of operation,” see § 782.5(c) ; as quired” as part of his jpb to ride on a 23 M.C.C. 1; Ex parte No. MC-28, 13 to what it meant by “loading” which di­ motor vehicle when it is being operated M.C.C. 481; Levinson v. Spector Motor rectly affects “safety of operation,” see in interstate or foreign commerce; an Service, 330 U.S. 649; Southland Gaso­ § 782.5(a)); dismount when the vehicle employee of a motor carrier is not line Co. v. Bayley, 319 U.S. 44; Morris v. approaches a railroad crossing and flag exempted as a “helper*- when he rides on McComb, 332 U.S. 422; Safety Regula­ the driver across the tracks, and perform such a vehicle, not as a matter of fixed tions (Carriers by Motor Vehicle), 49 a similar duty when the vehicle is being duty, but merely as a convenient means CFR Parts 390, 391, 395.)- In accordance turned around on a busy highway or of getting himself to, from, or between with principles previously stated (see when it is entering or emerging from a places where he performs his assigned § 782.2) , such drivers to whom this reg­ driveway; in case of a breakdown, (1) work. (See Pyramid Motor Freight ulatory power extends are, accordingly, place the flags, flares, and fuses as re­ Corp. v. Ispass, 330 U.S. 695, modifying, employees exempted from the overtime quired by the safety regulations, (2) go on other grounds, 152 F. (2d) 619 requirements of the Fair Labor Stand­ for assistance while the driver protects (C.A. 2).) ards Act by section 13(b) (1). (Southland the vehicle on the highway, or vice versa, Gasoline Co. v. Bayley, 319 U.S. 44; or (3) assist the driver in changing tires § 782.5 Loaders. Levinson v. Spector Motor Service, 330 or making minor repairs; and assist in (a) A “loader,” as defined for Motor U.S. 649; Morris v. McComb, 332 U.S. putting on or removing chains. Carrier Act jurisdiction (Ex parte Nos. 422; Rogers Cartage Co. v. Reynolds, 166 (b) An employee may be a “ helper” MC-2 and MC-3, 28 M.C.C. 125, 133, F. (2d) 317 (C.A. 6). This does not mean under the official definition even though 134, 139), is an employee of a carrier that an employee of a carrier who drives such safety-affecting activities consti­ subject to section 204 of the Motor Cai> a motor vehicle is exempted as a “ driver” tute but a minor part of his job. Thus, rier Act (other than a driver or driver’s by virtue of that fact alone. He is not although the primary duty of armed helper as defined in §§ 782.3 and 782.4) exempt if his job never involves trans­ guards on armored trucks is to protect whose duties include, among other portation in interstate or foreign com­ the valuables in the case of attempted things, the proper loading of his em­ merce within the meaning of the Motor robberies, they are classified as “ help­ ployer’s motor vehicles so that they may Carrier Act (see §§ 782.2 (d) and (e), ers” where they ride on such trucks being be safely operated on the highways of 782.7, and 782.8), or if he is employed operated in interstate or foreign com­ the country. A “loader” may be called by a private carrier and the only such merce, because, in the case of an accident by another name, such as “dockman,” transportation called for by his job is or other emergency and in other re­ “ stacker,” or “helper,” and his duties not transportation of property. 0See spects, they act in a capacity somewhat will usually also include unloading and § 782.2. See also Ex parte No. MC-28, 13 similar to that of the helpers described the transfer of freight between the ve­ M.C.C. 481. Cf. Colbeck v. Dairyland in the text. Similarly, conductorettes hicles and the warehouse, but he engages, Creamery Co. (S. Ct. S.D.), 17 N.W. (2d) on buses whose primary duties are to as a “loader,” in work directly affecting 262 (driver of truck used only to trans­ see to the comfort of the passengers are “safety of operation” so long as he has port himself to jobsites, as an incident classified as “ helpers” whose such buses responsibility, when such motor vehicles of his work in servicing his employer’s are being operated in interstate or for­ are being loaded, for exercising judgment refrigeration equipment, held non­ eign commerce, because in instances and discretion in planning and building exempt).) It has been held that so-called when accidents occur, they help the a balanced load or in placing, distribut­ “hostlers” who “spot” trucks and trailers driver in obtaining aid and protect the ing, or securing the pieces of freight at a terminal dock for loading and un­ vehicle from oncoming traffic. in such a manner that the safe operation loading are not exempt as drivers merely (c) In accordance with principles of the vehicles on the highways in inter­ because as an incident of such duties previously stated (see § 782.2), the sec­ state or foreign commerce will not be they drive the trucks and tractors in and tion 13(b) (1) exemption applies to em­ jeopardized. (Levinson v. Spector Motor about the premises of the trucking ter­ ployees who are, under the Secretary of Service, 330 U.S. 649; Pyramid Motor minal. (Keegan v. Ruppert (S.D. N.Y.), Transportation’s definitions, engaged in Freight Corp. v. Ispass, 330 U.S. 695; 7 Labor Cases, par. 61,726 6 Wage Hour such activities as full- or partial-duty Walling v. Gordon’s Transport (W.D. Kept. 676, cf. Walling v. Silver Fleet “ helpers” on motor vehicles being oper­ Tenn.), 10 Labor Cases, par. 62,934, af­ Motor Express, 67 F. Supp. 846) ated in transportation in interstate or firmed 162 F. (2) 203 (C.A. 6), certiorari foreign commerce within the meaning of § 782.4 Driver’s helpers. denied 332 U.S. 774; Walling v. Huber the Motor Carrier Act. (Ispass v. Pyra­ & Huber Motor Express, 67 F. Supp. 855 ; (a) A driver’s “helper,” as defined for mid Motor Freight Corp., 152 F. (2d) 619 Ex parte Nos. MC-2 and MC-3, 28 M.C.C. Motor Carrier Act jurisdiction (Ex parte (C.A. 2); Walling v. McGinley Co. (E.D. 125,133,134) Nos. MC-2 and MC^3, 28 M.C.C. 125, 135, Tenn.), 12 Labor Cases, par. 63,731, 6 W.H. Cases 916. See also Levinson v. (b) The section 13(b)(1) exemption 136,138, 139) , is an employee other than applies, in accordance with principles a driver, who is required to ride on a Spector Motor Service, 330 U.S. 649; Pyramid Motor Freight Corp. v. Ispass, previously stated (see § 782.2), to an motor vehicle when it is being operated employee whose job involves activities |n interstate or foreign commerce with- 330 U.S. 695; Dallum v. Farmers Coop. Trucking Assn., 46 F. Supp. 785 (D. consisting wholly or in part of doing, m the meaning of the Motor Carrier or immediately directing, a class of work ct. (The term does not include employ­ Minn.) .) The exemption has been held inapplicable to so-called helpers who defined (1) as that of a loader, and (2) ees who ride on the vehicle and act as as directly affecting the safety of opera­ or relief drivers. Ex parte Nos. ride on motor vehicles but do not en­ MC-2 and MC-3, supra. See § 782.3.) • gage in any of the activities of “helpers” tion of motor vehicles in interstate or foreign commerce within the meaning of Z?f. definition has classified all such which have been found to affect directly mpioyees, including armed guards on the safety of operation of such vehicles the Motor Carrier Act, since such an em­ ployee is an employee with respect to h “lored trucks and conductorettes on in interstate or foreign commerce. (W all­ uses, as “helpers” with respect to whom ing v. Gordon’s Transports (W.D. Tenn.), whom the Secretary of Transportation has power to establish qualifications and anrt as p?wer establish qualifications 10 Labor Cases par. 62,934, 6 W.H. Cases n maximum hours of service because maximum hours of service. (Levinson v. 831, affirmed 162 F. (2d) 203 (C.A. 6), cer­ Spector Motor Service, 330 U.S. 649; c their engagement in some or all of tiorari denied, 332 U.S. 774 (helpers on Pyramid Motor Freight Corp. v. Ispass, following activities which, in his city “ pickup and delivery trucks” where 330 U.S. 695; Walling v. Silver Fleet

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 21782 RULES AND REGULATIONS

Motor Express, 67 F. Supp. 846; Walling M.C.C. 125, red caps of bus companies keep motor vehicles operated in inter­ v, Huber & Huber Motor Express, 67 F. engaged in loading baggage on buses state or foreign commerce by his em­ Supp. 855; Walling v. Gordon’s Trans­ are not loaders engaged in work directly ployer in a good and safe working con­ ports (W.D. Ten n .); 10 Labor Cases, par. affecting safety of operation of the dition. (Ex parte Nos. MC-2 and MC-3, 62,934, affirmed 162 F. (2d) 203 (C.A. vehicles. In the same opinion, it is 28 M.C.C. 125, 132,133. Ex parte No. MC- 6), certiorari denied 332 U.S. 774; Tine- expressly recognized that there is a class 40 (Sub. No. 2), 88 M.C.C. 710 (repair rella v. Des Moines Transp. Co., 41 F. of freight which, because it is light in of refrigeration equipment). See also Supp. 798.) Where a checker, foreman, weight, probably could not be load «! Morris v. McComb, 332 U.S. 422.) It has or other supervisor plans and immedi­ in a manner which would adversely af­ been determined that the safety of opera­ ately directs the proper .loading of a fect “safety of operation.” Support for tion of such motor vehicles on the high­ motor vehicle as described above, he may this conclusion is found in Wirtz v. C & P ways is directly affected by those activi­ come within the exemption as a partial- Shoe Corp., 335 F. (2d) 21 (C.A. 5), ties of mechanics, such as keeping the duty loader. (Levinson v. Spector Motor wherein the court held the loading of lights and brakes in a good and safe Service, 330 U.S. 649; Walling v. Gor­ boxes of shoes, patterned on the last in, working condition, which prevent the don’s Transports (W.D. Tenn.), 10 Labor first out principle clearly was not of a vehicles from becoming potential haz­ Cases, par. 62,934; affirmed 162 F. (2d) safety affecting character “ in view of the ards to highway safety and thus aid in 203 (C.A. 6), certiorari denied 332 U.S. light weight of the cargo involved.” In the prevention of accidents. The courts 774; Walling v. Huber & Huber Motor the case of coal trucks which are loaded have held that mechanics perform work Express, 67 F. Supp. 885; Walling v. Sil­ from stockpiles by the use of an electric of this character where they actually do ver Fleet Motor Express, 67 F. Supp. bridge crane and a mechanical conveyor, inspection, adjustment, repair, or main­ 846; Crean v. Moran Transportation it has been held that employees operating tenance work on the motor vehicles Lines, 57 F. Supp. 212 (W.D. N.Y.) . See such a crane or conveyor in the loading . themselves (including trucks, tractors also 9 Labor Cases, par. 62,416; Walling process are not exempt as “loaders” un­ and trailers, and buses) and are, when so engaged, directly responsible for creating v. Commercial Motor Freight (S.D. In d.), der section 13(b)(1). (Barrick v. South or maintaining physical conditions es­ 11 Labor Cases, par. 63,451; Hogla v. Chicago Coal & Dock Co. (N.D. HI.), 8 Labor Cases, par. 62,242, affirmed 149 F. sential to the safety of the vehicles on Porter (E.D. Okla.), 11 Labor Cases, par. the highways through the correction or 63,389, 6 W.H. Cases 608.) (2d) 960 (C.A. 7 )). It seems apparent from the foregoing discission that an em­ prevention of defects which have a direct (c) An employee is not exempt as a causal connection with the safe opera­ loader where his activities in connection ployee who has no responsibility for the proper loading of a motor vehicle is not tion of the unit as a whole. (Walling v. with the loading of motor vehicles are Silver Bros., 136 F. (2d) 168 (C.A. 1); confined to classes of work other than the within the exemption as a “loader” , merely because he furnishes physical as­ McDuffie v. Hayes Freight Lines, 71 F. kind of loading described above, which Supp. 755; Walling v. Silver Fleet Motor directly affects “safety of operation.” sistance when necessary in loading heavy pieces of freight, or because he deposits Express, 67 F. Supp. 846; Keeling v. Hu­ (Pyramid Motor Freight Carp. v. Ispass, ber & Huber Motor Express, 67 F, Supp. 330 U.S. 695; Levinson v. Spector Motor pieces of freight in the vehicle for some­ one else to distribute and secure in place, 617; Walling v. Huber & Huber Motor Ex­ Service, 330 U.S. 649) The mere handling press, 67 F. Supp. 855; Tinerella v. Des of freight at a terminal, before or after or even because he does the physical work of arranging pieces of freight in the ve­ Moines Transp. Co., 41 F. Supp. 798; loading, or even the placing of certain Robbins v. Zabarsky, 44 F. Supp. 867; articles of freight on a motor carrier hicle where another employee tells him exactly what to do in each instance and West v. Smoky Mt. Stages, 40 F. Supp. truck may form so trivial, casual, or oc­ 296; Walling v. Cumberland & Liberty casional a part of an employee’s activi­ he is given no share in the exercise of discretion as to the manner in which the Mills Co. (S.D. Fla.), 6 Labor Cases, par. ties, or his activities may relate only to 61,184; Esibill v. Marshall (D. N.J.), 6 such articles or to such limited handling loading is done. (See Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695; Labor Cases, par. 61,256; Keegan v. Rup- of them, that his activities will not come pert (S.D. N .Y .), 7 Labor Cases, par. within the kind of “loading” which di­ Yellow Transit Freight Lines Inc. v. Bal- ven, 320 F. (2d) 495 (C.A. 8); Foremost 61,726; Baker v. Sharpless Hendler Ice rectly affects “safety of operation.” Thus, Cream Co. (E.D. Pa.), 10 Labor Cases, the following activities have been held to Dairies v. Ivey, 204 F. (2d) 186 (C.A. 5); Ispass v. Pyramid Motor Freight Corp., par. 62,956; Kentucky Transport Co. v. provide no basis for exemption: Unload­ Drake (Ky. Ct. App.), 182 S.W. (2d) 960.) ing; placing freight in convenient places 78 F. Supp. 475 (S.D. N .Y .); Mitchell v. Meco Steel Supply Co., 183 F. Supp. 779 The following activities performed by in the terminal, checking bills of lading; mechanics on motor vehicles operated wheeling or calling freight being loaded (S.D. T e x .); Garton v. Sanders Transfer & Storage Co., 124 F. Supp. 84 (M.D. in interstate or foreign commerce are il­ or unloaded; loading vehicles for trips lustrative of the specific kinds of activi­ which will not involve transportation in Tenn.); McKeown v. Southern Calif. Freight Forwarders, 49 F. Supp. 543; ties which the courts, in applying the interstate or foreign commerce within foregoing principles, have regarded as di­ the meaning of the Motor Carrier Act; Walling v. Gordon’s Transports (W.D. Tenn.), 10 Labor Cases, par. 62,934, af­ rectly affecting “safety of operation . and activities relating to the preserva­ The inspection, repair, adjustment, and tion of the freight as distinguished from firmed 162 F. (2d) 203 (C.A. 6), certio­ rari denied 332 U.S. 774; Crean v. Moran maintenance for safe operation of steer­ the safety of operation of the motor ve­ ing apparatus, lights, brakes, horns, hicles carrying such freight on the high­ Transportation Lines, 50 F. Supp. 107 (see also further opinion in 54 F. Supp. windshield wipers, wheels and axles, ways. (Pyramid Motor Freight Corp. v. bushings, transmissions, differentials, Ispass, 330 U.S. 695; Levinson v. Spector 765, and cf. the court’s holding in 57 F. Supp. 212 with Walling v. Gordon’s motors, starters and ignition, carburet­ Motor Service, 330 U.S. 649; Porter v. ors, fifth wheels, springs and spring Poindexter, 158 F. (2d) 759 (C.A. 10); Transports, cited above). See also Levin­ son v. Spector Motor Service, 330 U.S. hangers, frames, and gasoline tanx • McKeown v. Southern Calif. Freight For­ (McDuffie v. Hayes Freight Lines, 71 r. warders, 49 F. Supp. 543; Walling v. 649.) Such activities would not seem to constitute the kind of “loading” which Supp. 755; Walling v. Silver Fleet Motor Gordon’s Transports (W.D. Tenn.), 10 Express, 67 F. Supp. 846; Wolfe v. Union Labor Cases, par. 62,934, affirmed 162 F. directly affects the safety of operation of the loaded vehicle on the public high­ Transfer & Storage Co., 48 F. Supp. ° > (2d) 203 (C.A. 6), certiorari denied 332 Mason & Dixon Lines v. Ligon (Tenn. • U.S. 774; Walling v. Huber & Huber Mo­ ways, under the official definitions. (See Ex parte Nos. MC-2 and MC-3, 28 M.C.C. App.), 7 Labor Cases, par. 61,962; wai­ tor Express, 67 F. Supp. 855; Walling v. 2 125,133,134.) ling v. Palmer, 67 F. Supp. ! ; Kentucky Silver Fleet Motor Express, 67 F. Supp. Transport Co. v. Drake (Ky. Ct. app- ’ 846; Crean v. Moran Transp. Lines, 50 F. § 782.6 Mechanics. 182 S.W. (2d) 960.) inspecting ana Supp. 107, 54 F. Supp. 765 (cf. 57 F. Supp. (a) A “mechanic,” for purposes of checking air pressure in tires, changu 212); Gibson v. Glasgow (Tenn. Sup. safety regulations under the Motor Car­ tires, and repairing and rebuilding C t.), 157 S.W. (2d) 814. See also Keeling rier Act is an employee who is employed for immediate replacement on the v v. Huber & Huber Motor Express, 57 F. by a carrier subject to the Secretary’s from which they were removed have ai Supp. 617.) As is apparent from opinion jurisdiction under section 204 of the Mo­ been held to affect safety of ope^tion in Ex Parte Nos. MC-2 and MC—3, 28 tor Carrier Act and whose duty it is to directly. (Walling v. Silver Fleet Mo

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 RULES AND REGULATIONS 21783

Express, 67 P. Supp. 846; Walling v. performed by employees whose jobs are (2) The distinction between direct and Palmer, 67 F. Supp. 12. See also McDuffie confined to such work as that of dis­ indirect effects on safety of operation is v. Hayes Freight Lines, 71 F. Supp. 755.) patchers, carpenters, tarpaulin tailors, exemplified by the comments in reject­ The same is true of hooking up tractors vehicle painters, or servicemen who do ing the contention in Ex parte Nos. MC-2 and trailers, including light and brake nothing but oil, gas, grease, or wash the and MC-3, 28 M.C.C. 125, 135, that the connections, and the inspection of such motor vehicles. (Ex parte Nos. MC-2 and activities of dispatchers directly affect hookups. (Walling v. Silver Fleet Motor MC-3, 28 M.C.C. 125, 132, 133, 135) To safety of operation. It was stated: “It is Express, 67 F. Supp. 846; Walling v. these may be added activities such as contended that if a dispatcher by an Palmer, 67 F. Supp. 12. See also Walling filling radiators, checking batteries, and error in judgment assigns a vehicle of v. Gordon’s Transports (W.D. Tenn.), 10 the usual work of such employees as insufficient size and weight-carrying ca­ Labor Cases, par. 62,934, affirmed 162 F. stockroom personnel, watchmen, porters, pacity to transport the load, or calls a (2d) 203 (C.A. 6), certiorari denied 332 and garage employees performing menial driver to duty who is sick, fatigued, or U.S. 744.) nondiscretionary tasks or disassembling otherwise not in condition to operate^the (b) The section 13(b)(1) exemption work. Employees whose work is confined vehicle, or requires yor permits the ve­ applies, in accordance with principles to such “nonsafety” activities are not hicle to depart when the roads are icy previously stated (see § 782.2), to an em­ within the exemption, even though the and the country to be traversed is hilly, ployee whose job involves activities con­ proper performance of their work may an accident may result. While this may sisting wholly or in part of doing, or have an indirect effect on the safety of be true, it is clear that such errors in immediately directing, a class of work operation of the motor vehicles on the judgment are not the proximate causes which, under the definitions referred to highways. (Morris v. McComb, 332 U.S. of such accidents, and that the dispatch­ above, is that of a “mechanic” and di­ 422; Campbell v, Riss & Co. (W.D. Mo.), ers engage in no activities which directly rectly affects the safety of operation of 5 Labor Cases, par. 61,092 (dispatcher); affect the safety of operation of motor motor vehicles on the public highways McDuffie v. Hayes Fréight Lines, 71 F. vehicles in interstate or foreign com­ in interstate or foreign commerce within Supp. 755 (work of janitor and caretaker, merce.” the meaning of the Motor Carrier Act. carpentry work, body building, remov­ (3) Similarly, the exemption has been The power under the Motor Carrier Act ing paint, preparing for repainting, and held inapplicable to mechanics repairing to establish qualifications and m a x im u m painting); Walling v. Silver Fleet Motor and rebuilding parts, batteries, and tires hours of service for such an employee Express, 67 F. Supp. 846 (body building, removed from vehicles where a direct has been sustained by the courts. (Morris construction work, painting and letter­ causal connection between their work v. McComb, 332 U.S. 422. See also Pyra­ ing) ; Hutchinson v. Barry, 50 F. Supp. and the safe operation of motor vehicles mid Motor Freight Corp. v. Ispass, 330 292 (washing vehicles); Walling v on the highways is lacking because they U.S. 695; Levinson v., Spector Motor Palmer, 67 F. Supp. 12 (putting water in do no actual work on the vehicles them­ Service, 330 U.S. 649; Walling v. Silver radiators and batteries, oil and gas in selves and entirely different employees Bros., 136 F. (2d) 168 (C.C.A. D .) A vehicles, and washing vehicles); Anu­ have the exclusive responsibility for de­ supervisory employee who plans and chick V. Transamerican Freight Lines, termining whether the products of their immediately directs and checks the 46 F. Supp. 861 (body builders, tarpaulin work are suitable for use, and for the cor­ proper performance of this class of work worker, stockroom boy, night watchman, rect installation of such parts, on the ve­ may come within the exemption as a porter); Bumpus v. Continental Baking hicles. (Keeling v. Huber & Huber Motor partial-duty mechanic. (Robbins v. Za- Co. (W.D. Tenn.), 1 Wage Hour Cases Express, 57 F. Supp. 617; Walling v. barsky, 44 F. Supp. 867; Mason & Dixon 920 (painter), reversed on other grounds Huber & Huber Motor Express, 67 F. Lines v. Ligon (Tenn. Ct. App.), 7 Labor 124 F. (2d) 549; Green v. ftiss & Co., 45 Supp. 855) Mechanical work on motor Cases par. 61,962; cf. Morris v. McComb, F. Supp. 648 (night watchman and gas vehicles of a carrier which is performed 332 U.S. 422 and Levinson v. Spector pump attendant); Walling v. Burling­ in order to make the vehicles conform to Motor Service, 330 U.S. 649) ton Transp. Co. (D. Nebr.), 9 Labor technical legal requirements rather than (c) (1) An employee of a carrier byCases, par. 62,576 (body builders); Kee­ to prevent accidents on the highways has motor vehicle is not exempted as a “me­ gan v. Ruppert (S.D. N.Y.), 7 Labor hot been regarded by the courts as work chanic” from the overtime provisions Cases, par. 61,726 (greasing and wash­ directly affecting “safety of operation.” of the Fair Labor Standards Act under ing); Walling v. East Texas Freight (Kentucky Transport Co. v. Drake (Ky. section 13(b)(1) merely because he Lines (N.D. T ex.), 8 Labor Cases, par. Ct. App.), 182 S.W. (2d) 960; Anuchick works in the carrier’s garage, or because 62,083 (menial tasks); Collier v. Acme v. Transamerican Freight Lines, 46 F. he is called a “mechanic,” or because he Freight Lines, unreported (S.D. Fla., Supp. 861; Yellow Transit Freight Lines is a mechanic by trade and does mechan­ Oct. 1943) (sam e); Potashnik Locaí Inc. v. Balsen 320 F. (2d) 495 (C.A. 8 )) ical work. (Wirtz v. Tyler Pipe & Foundry Truck System v. Archer (Ark. Sup. Ct.), And it is clear that no mechanical work Co., 369 F. 2d 927 (C.A. 5).) The exemp­ 179 S.W. (2d) 696 (checking trucks in on motor vehicles can be considered to tion applies only if he is doing a class and out and acting as night dispatcher, affect safety of operation of such vehicles of work defined as that of a “mechanic,” among other duties); Overnight Motor in interstate or foreign commerce if the including activities which directly affect Corp. V. Missel, 316 U.S. 572 (rate clerk vehicles are never in fact used in trans­ the safety of operation of motor ve­ with part-time duties as dispatcher).) portation in such commerce on the public hicles in transporation on the public The same has been held true of em­ highways. (Baker v. Sharpless Hendler highways in interstate or foreign com­ ployees whose activities are confined to Ice Cream Co. (E.D. Pa.), 10 Labor merce. (Morris v. McComb, 332 U.S. 422; construction work, manufacture or re­ Cases, par. 62,956) Keeling v. Huber & Huber Motor Express, building of truck, bus, or trailer bodies, § 782.7 Interstate commerce require­ 57 F. Supp. 617; Walling v. Huber & Hu- and other duties which are concerned ments o f exemption. &er Motor Express, 67 F. Supp. 855; with the safe carriage of the contents walhng v. Silver Fleet Motor Express, of the vehicle rather than directly with (a) As explained in preceding sections V . / Sl?PP- 846; McDuffie v. Hayes the safety of operation on the public of this part, section 13(b) (1) of the Fair reight Lines, 71 F. Supp. 755; Anuchick highways of the motor vehicle itself. Labor Standards Act does not exempt Transamerican Freight Lines, 46 F. (Anuchick v. Transamerican Freight an employee of a carrier from the act’s pUPP-861; Walling v. Burlington Transp. Lines, 46 F. Supp. 861; Walling v. Silver overtime provisions unless it appears, p Nebr.), 9 Labor Cases, par. 62,576. Fleet Motor Express, 67 F. Supp. 846; among other things, that his activities ¡T.ompare Ex parte No- MC-40 (Sub. No. McDuffie v. Hayes Freight Lines, 71 f '. as a driver, driver’s helper, loader, or ¿>, 88 M.C.C. 710 with Colbeck v. Dairy- Supp. 755; Walling v. Burlington Transp. mechanic directly affect the safety of op­ K 9reamery Co. (S.D. Sup. Ct.), 17 Co. (D. Nebr.), 9 Labor Cases, pan eration of motor vehicles in transporta­ 262- See also Pyramid Motor 62,576. Compare Colbeck v. Dairyland tion in interstate or foreign commerce Corp* v* ^Pass. 330 U.S. 695.) Creamery Co. (S.D. Sup. Ct.), 17 N.W. within the meaning of the Motor Garrier Act. What constitutes such transporta­ activities which do not directly affect (2d) 262 with Ex parte No. MC-40 (Sub. such safety of operation include those tion in interstate or foreign commerce, No. 2), 88 M.C.C. 710.) sufficient to bring such an employee

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13. 1971 21784 RULES AND REGULATIONS within the regulatory power of the Sec­ Co. (E.D. Tenn.), 13 Labor Cases, par. tation by motor vehicle which, although retary of Transportation under section 64,021; Reynolds v. Rogers Cartage Co. confined to a single State, is a part of an 204 of that act, is determined by defini­ (W.D. K y .), 13 Labor Cases, par. 63,978, interstate movement of the goods or per­ sons being thus transported so as to con­ tions contained in the Motor Carrier Act reversed on other grounds 166 F. (2d) 317 stitute interstate commerce within the itself. These definitions are, however, not (C.A. 6 ); Walling v. McGinley Co. (E.D. meaning of the Fair Labor Standards Act. identical with the definitions in the Fair Tenn.), 12 Labor Cases, par. 63,731; Labor Standards Act which determine Walling v. A. H. Phillips, Inc., 50 F. Supp. This policy does not extend to drivers, whether an employee is within the gen­ 749, affirmed (C.A. 1) 144 F. (2d) 102, 324 driver’s helpers, loaders, or mechanics whose transportation activities are “in eral coverage of the wage and hours U.S. 490. See §§ 782.2-782.8.) The result is no different where the vehicles do not commerce” or “in the production of goods provisions as an employee “ engaged in for commerce” within the meaning of the (interstate or foreign) commerce.” For actually cross State lines but operate act but are not a part of an interstate this reason, the interstate commerce re­ solely within a single State, if what is being transported is actually moving in movement of the goods or persons carried, quirements of the section 13(b) (1) ex­ (see, e.g., Wirtz v. Crystal Lake Crushed emption are not necessarily met by es­ interstate commerce within the meaning of both acts; the fact that other carriers Stone Co., 327 F. 2d 455 (C.A. 7 )). Where, tablishing that an employee is “ engaged however, it has been authoritatively held in commerce” within the meaning of the transport it out of or into the State is not material. (Morris v. McComb, 68 S. Ct. * that transportation of a particular char­ Fair Labor Standards Act when perform­ acter within a single State is not in inter­ ing activities as a driver, driver’s helper, 131; Pyramid Motor Freight Corp. v. Ispass, 330 U.S. 695; Walling v. Silver state commerce as defined in the Motor loader, or mechanic, where these activ­ Carrier Act (as has been done with re­ ities are sufficient in other respects to Bros. Co. 136 F. (2d) 168 (C.A. 1); Wall­ ing v. Mutual Wholesale Food & Supply spect to certain transportation of petro­ bring him within the exemption. (Hager leum products from a terminal within a v. Brinks, Inc. (N.D. 111.), 11 Labor Cases, Co., 141 F. (2d) 331 (C.A. 8); Dallum V. Farmers Cooperative Trucking Assn., 46 State to other points within the same par. 63,296, 6 W.H. Cases 262; Earle v. State—see subparagraph (2) of this Brinks, Inc., 54 F. Supp. 676 (S.D. N .Y .); F. Supp. 785 (D. M inn.); Gavril v. Kraft Cheese Co., 42 F. Supp. 702 (N.D. H I.); paragraph), there is no basis for an ex­ Thompson v. Daugherty, 40 F. Supp. 279 emption under section 13(b)(1), even (D. M d .). See also, Walling v. Villaume Keegan v. Rupport (S.D. N .Y .), 7 Labor Cases, par. 61,726, 3 W.H. Cases 412; though the facts may establish a “practi­ Box & Lbr. Co., 58 F. Supp. 150 (D. cal continuity of movement” from out-of- M inn.). And see in this connection para­ Baker v. Sharpless Hendler Ice Cream Co. (E.D. P a .), 10 Labor Cases, par. 62,956, 5 State sources through such in-State trip graph (b) of this section and § 782.8.) To W.H. Cases 926) Transportation within so as to make the trip one in interstate illustrate, employees of construction con­ a single State is in interstate commerce commerce under the Fair Labor Stand­ tractors are, within the meaning of the within the meaning of the Fair Labor ards Act. Of course, engagement in local Fair Labor Standards Act, engaged in Standards Act where it forms a part of a transportation which is entirely in intra­ commerce where they operate or repair “practical continuity of movement” state commerce provides no basis for ex­ motor vehicles used in the maintenance, across State lines from the point of empting a motor carrier employee. (Kline repair, or reconstruction of instrumen­ origin to the point of destination. v. Wirtz, 373 F. 2d 281 (C.A. 5). See also talities of interstate commerce (for ex­ (Walling v. Jacksonville Paper Co., 317 paragraph (b) of this section.) ample, highways over which goods and U.S. 564; Walling v. Mutual Wholesale (2) The Interstate Commerce Com­ persons regularly move in interstate Food & Supply Co., 141 F. (2d) 331 (C.A. mission held that transportation confined commerce). (Walling v. Craig, 53 F. 8); Walling v. American Stores Co., 133 to points in a single State from a storage Supp. 479 (D. M inn.). See also Engbret- F. (2d) 840 (C.A. 3 ); Baker v. Sharpless terminal of commodities which have had son v. E. J. Albrecht Co., 150 F. (2d) 602 Hendler Ice Cream Co. (EJ). Pa.), 10 a prior movement by rail, pipeline, motor, (C.A. 7 ); Overstreet v. North Shore Corp., Labor Cases, par. 62,956, 5 W.H. Cases or water from an origin in a different 318 UJ3.125; Pedersen v. J. F. Fitzgerald 926) Since the interstate commerce regu­ State is not in interstate or foreign com­ Constr. Co., 318 U.S. 740,742.) Employees lated under the two acts is not identical merce within the meaning of part H so engaged are not, however, brought (see paragraph (a) of this section), such of the Interstate Commerce Act if the within the exemption merely by reason transportation may or may not be con­ shipper has no fixed and persisting trans­ of that fact. In order for the exemption sidered also a movement in interstate portation intent beyond the terminal to apply, their activities, so far as inter­ commerce within the meaning of the Mo­ storage point at the time of shipment. state commerce is concerned, must relate tor Carrier Act. Decisions of the Inter­ See Ex parte No. MC-48 (71 M.C.C. 17, directly to the transportation of mate­ state Commerce Commission prior to 1966 29). The Commission specifically ruled rials moving in interstate or foreign seemingly have limited the scope of the that there is no fixed and persisting in­ commerce within the meaning of the Motor Carrier Act more narrowly than tent where (i) at the time of shipment Motor Carrier Act. Asphalt distributor- the courts have construed the Fair Labor there is no specific order being filled fora operators, although not exempt by rea­ Standards Act. (See § 782.8.) It is deemed specific quantity of a given product to be son of their work in applying the asphalt necessary, however, as an enforcement moved through to a specific destination to the highways, are within the exemp­ policy only and without prejudice to any beyond the terminal storage, and (ii) the tion where they transport to the road rights of employees under section 16(b) terminal storage is a distribution point site asphalt moving in interstate com­ of the Act, to assume that such a move­ or local marketing facility from whicn merce. See Richardson v. James Gibbons ment in interstate commerce under the specific amounts of the product are sold Co., 132 F. (2d 627 (C.A. 4), affirmed 319 Fair Labor Standards Act is also a move­ or allocated, and (iii) transportation in U.S. 44 (and see reference to this case ment in interstate commerce under the the furtherance of this distribution in footnote 18 of Levinson v. Spector Mo­ Motor Carrier Act, except in those situa­ within the single State is specifically ar­ tor Service, 330 U.S. 649); Walling v. tions where the Commission has held or ranged only after sale or allocation from Craig, 53 F. Supp. 479 (D. M inn.). the Secretary of Transportation or the storage. In Baird v. Wagoner Transporta­ (b) (1) Highway transportation by courts hold otherwise. (See § 782.8(a).; tion Co., 425 F. (2d) 407 (C.A. 6) , the motor vehicle from one State to another, and compare Beggs v. Kroger Co., 167 F. court found each of these factors to in the course of which the vehicles cross (2d) 700, with the Interstate Commerce present and held the intrastate the State line, clearly constitutes inter­ Commission’s holding in Ex parte No. portation activities were not “in inter­ state commerce under both acts. Em­ MC-48, 71 M.C.C. 17, discussed in para­ state commerce” within the m®a.mn8 ployees of a carrier so engaged, whose graph (b )(2 ) of this section.) Under this the Motor Carrier Act and denied the sec­ duties directly affect the safety of opera­ enforcement policy it will ordinarily be tion 13(b) (1) exemption. While Ex part tion of such vehicles, are within the assumed by the Administrator that the No. MC-48 deals with petroleum and pe­ exemption in accordance with principles interstate commerce requirements of the troleum products, the decision indicates previously stated. (Southland Gasoline section 13(b)(1) exemption are satisfied that the same reasoning applies to gen­ Co. v. Bayley, 319 U.S. 44; Plunkett v. where it appears that a motor carrier eral commodities moving interstate inw Abraham Bros., 129 F. (2d) 419 (C.A. employee is engaged as a driver, driver’s a warehouse for distribution (71 M.C. •a 6 ); Vannoy v. Swift & Co. (Mo. Sup. Ct.) * 27). Accordingly, employees engaged m 201 S.W. (2d) 350; Nelson v.‘ Allison & helper, loader, or mechanic in transpor­

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 RULES AND REGULATIONS 21785

such transportation are not subject to tion of goods for commerce and who are vehicles used exclusively for that pur­ the Motor Carrier Act and therefore not not subject to the Motor Carrier Act be­ pose. (See 3 M.C.C. 694, 697.) It would within the section 13(b)(1) .exemption. cause not engaged in interstate or foreign thus appear that such employees of mail They may, however, be engaged in com­ commerce within the meaning of that contractors are not within the exemption merce within the meaning of the Pair act, are not within the exemption pro­ provided by section 13(b) (1) of the Fair Labor Standards Act. (See in this con­ vided by section 13(b)(1). (Walling v. Labor Standards Act. Employees of mail nection, Mid-Continent Petroleum Corp. Comet Carriers, 151 P. (2d) 107 (C.A. 2); contractors are not -employees of the v. Keen, 157 P. 2d 310 (C.A. 8 ); DeLoach Griffin Cartage Co. v. Walling, 153 P. United States within the meaning of sec­ v. Crowley’s Inc., 128 P. 2d 378 (C.A. 5); (2d) 587 (C.A. 6); Walling v. Morris, 155 tion 3(d) of the Pair Labor Standards Walling v. Jacksonville Paper Co., 69 P. F. (2d) 832 (C.A. 6), reversed on other Act. (Fleming v. Gregory, 36 P. Supp. Supp. 599, affirmed 167 P. 2d 448, reversed grounds in Morris v. McComb, 332 U.S. 776; Thompson v. Daugherty, 40 F. Supp. on another point in 336 U.S. 187; and 422; West Kentucky Coal Co. v. Walling, 279; Mangann v. Long’s Baggage Trans­ Standard Oil Co. v. Trade Commission, 153 F. (2d) 582 (C.A. 6); Hamlet Ice Co. fer Co. 39 P. Supp. 742.) Since they are 340 U.S. 231, 238). v. Fleming, 127 F. (2d) 165 (C.A. 4); considered “engaged in commerce” (c) The wage and hours provisions ofAtlantic Co. v. Walling, 131 F. (2d) 518 within the meaning of the act, it is the the Pair Labor Standards Act are appli­ (C.A. 5 ); Chapman v. Home Ice Co., 136 position of the Division that they are cable not only to employees engaged in F. (2d) 353 (C.A. 6); Walling v. Griffin entitled to overtime compensation under commerce, as defined in the act, but also Cartage Co., 62 P. Supp. 396 (E.D. M ich.), section 7 of the Pair Labor Standards to employees engaged in the production affirmed 153 F. (2d) 587 (C.A. 6); Dallum Act. (Repsher v. Streepy (E.D. Pa.), 7 of goods for such commerce. Employees v. Farmers Coop. Trucking Assn., 46 P. Wage Hour Cases 769; 14 Labor Cases, engaged in the “production” of goods are Supp. 785 (D. M inn.); Walling v. Vil- par. 64,364; Thompson v. Daugherty, defined by the act as including those en­ laume Box & Lbr. Co., 58 P. Supp. 150 40 P. Supp. 279; Mitchell v. Steinmetz gaged in “handling, transporting, or in (D. M inn.); Walling v. DeSoto Creamery et al., 36 Labor Cases par. 65,274, a f­ any other manner working on such & Produce Co., 51 F. Supp. 938 (D. firmed 268 P. (2d) 501; Mitchell v. goods, or in any closely related process Minn.); Reynolds v. Rogers Cartage Co., Raines (ED. Pa.), 30 Labor Cases, par. or occupation directly essential to the 71 P. Supp. 870 (W.D. K y .), reversed on 70,015,12 Wage Hour Cases 856; Mitchell production thereof, in any State.” (Fair other grounds 166 P. (2d) 317 (C.A. 6), v. Steinmetz (N.D. Ga.) 37 Labor Cases, Labor Standards Act, sec. 3 (j), 29 U.S.C., Hansen v. Salinas Valley Ice Co. (Cal. par. 65,562, 14 Wage Horn* Cases 202; sec. 203(j), as amended by the Pair App.), 144 P. (2d) 896) Mitchell v. Blackburn (D. M d.), 37 Labor Labor Standards Amendments pf 1949, Cases, par. 65,399, 14 Wage Hour Cases 63 Stat. 910. See also the Division’s In ­ § 782.8 Special classes o f carriers. 146. But see Magann v. Long’s Baggage terpretative Bulletin, Part 776 of this (a) The Interstate Commerce Com­ Transfer Co., 39 F. Supp. 742, contra.) chapter on general coverage of the wage mission consistently maintained that (c) Section 202(c)(2) of the Motor and hours provisions of the act.) Where transportation within a State of con­ Carrier Act, as amended on May 16,1942, transportation of persons or property by sumable goods (such as food, coal, and makes section 204 of that act “relative motor vehicle between places within a ice) to railroad, docks, etc., for use on to qualifications and maximum hours of State falls within this definition, and is trains and steamships is not such trans­ service of employees and safety of op­ not transportation in interstate or for­ portation as is subject to its jurisdiction. erations and equipment,” applicable “ to eign commerce within the meaning of (New Pittsburgh Coal Co. v. Hocking transportation by motor vehicle by any the Motor Carrier Act because movement Valley Ry. Co., 241.C.C. 244; Corona Coal person (whether as agent or under a from points out of the State has ended Co. v. Secretary of War, 69 I.C.C. 389; contractual arrangement) for a * * * or because movement to points out of the Bunker Coal from Alabama to Gulf Ports, railroad * * * express company * * * State has not yet begun, the employees 227 I.C.C. 485.) The intrastate delivery motor carrier * * * water carrier * * * engaged in connection with such trans­ of chandleries, including cordage, canvas, or a freight forwarder * * * in the per­ portation (this applies to employees of repair parts, wire rope, etc., to ocean­ formance within terminal areas of trans­ common, contract, and private carriers) going vessels for use and consumption fer, collection, or delivery service.” Thus, are covered by the wage and hours pro­ aboard such vessels which move in inter­ drivers, drivers’ helpers, loaders, and visions of the Pair Labor Standards Act state or foreign commerce falls within mechanics of a motor carrier performing and are not subject to the jurisdiction this category. Employees of carriers so pickup and delivery service for a rail­ of the Secretary of Transportation. Ex­ engaged are considered to be engaged in road, express company, or water carrier amples are: (1) Drivers transporting commerce, as that term is used in the are to be regarded as within the 13(b) (1) goods in and about a plant producing Pair Labor Standards Act. These em­ exemption. (See Levinson v. Spector goods for commerce; (2) chauffeurs or ployees may also be engaged in the “pro­ Motor Service, 330 U.S. 649 (footnote drivers of company cars or buses trans­ duction of goods for commerce” within 10); cf. Cedarblade v. Parmelee Transp. porting officers or employees from place the meaning of section 3 (j) of the Pair Co. (C.A. 7), 166 P. (2d) 554, 14 Labor to place in the course of their employ­ Labor Standards Act. See cases cited in Cases, par. 64,340.) The same is true of ment in an establishment which pro­ § 782.7(c), and see Mitchell v. Independ­ drivers, drivers’ helpers, loaders, and duces goods for commerce; (3) drivers ent Ice Co., 294 P. 2d 186 (C.A. 5), cer­ mechanics employed directly by a rail­ who transport goods from a producer’s tiorari denied 368 U.S. 952, and Part 776 road, a water carrier or a freight for­ Plant to the plant of a processor, who, in of this chapter. Since the Commission warder in pickup and delivery service. turn, sells goods in interstate commerce, has disclaimed jurisdiction over this type Section 202(c) (1) of the Motor Carrier . e first producer’s goods being a part or of operation (see, in this connection Act, as amended on May 16, 1942, in­ mgredient of the second producer’s § 782.7(b)), it is the Division’s opinion cludes employees employed by railroads, goods; (4) drivers transporting goods be­ that drivers, driver’s helpers, loaders, and water carriers, and freight forwarders, tween a factory and the plant of an mechanics employed by companies en­ in transfer, collection, and delivery serv­ independent contractor who performs gaged in such activities are covered by ice in terminal areas by motor vehicles operations on the goods, after which they the wage and hours provisions of the within the Interstate Commerce Com­ are returned to the factory which further Fair Labor Standards Act, and are not mission’s regulatory power under section Processes the goods for commerce; and within the exemption contained in sec­ 204 of the same act. See Morris v. Mc­ (5) drivers transporting goods such as tion 13(b)(1). (See Hansen v. Salinas Comb, 332 U.S. 422 and § 782.2(a). (Such machinery or tools and dies, for example, Valley Ice Co. (Cal. App.), 144 P. (2d) employees of a carrier subject to part I to be used or consumed in the production 896.) of the Interstate Commerce Act may 0 other goods for commerce. These and (b) The Interstate Commerce Com­ come within the exemption from the °~®r employees engaged in connection overtime requirements provided by sec­ with the transportation within a State mission disclaimed jurisdiction under the tion 13(b) (2). Cf. Cedarblade v. Parme­ i Persons or property by motor vehicle Motor Carrier Act of employees engaged lee Transp. Co. (C.A. 7), 166 P. (2d) 554, who are subject to the Pair Labor Stand- in the transportation of mail under con­ 14 Labor Cases, par. 64,340. Thus, only rds Act because engaged in the produc- tract with the Post Office Department in employees of a railroad, water' carrier.

FEDERAL REGISTER, V.OL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 21786 RULES AND REGULATIONS or freight forwarder outside of the scope companies, since the Interstate Com­ Wage and Hour Division in his enforce­ of part I of the Interstate Commerce merce Commission had determined that ment of section 13(b)(1) of the Pair Act and of the 13(b) (2) exemption are its regulatory power under section 204 Labor Standards Act. of the Motor Carrier Act extended to affected by the above on and after the Signed at Washington, D.C., this 19th such employees. date of the amendment.) Both before day of October 1971. and after the amendments referred to, (d) The determinations of the Inter­ it has been the Division’s position that state Commerce Commission discussed H orace E. M e n a sc o , the 13(b) (1) exemption is applicable to in paragraphs (a ), (b), and (c) of this Administrator, Wage and Hour drivers, drivers’ helpers, loaders, and section have not been amended or re­ Division, U.S. Department of mechanics employed in pickup and de­ voked by the Secretary of Transpor­ Labor. livery service to line-haul motor carrier tation. These determinations will con­ [PR Doc.71-16562 Piled 11-12-71;8:45 am] depots or under contract with forwarding tinue to guide the Administrator of the

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 SATURDAY, NOVEMBER 13, 1971 WASHINGTON, D.C.

Volume 36 ■ Number 220

PART III

COST OF LIVING COUNCIL

P A Y BO ARD

PRICE COMMISSION

Economic Stabilization 21788 RULES AND REGULATIONS empt from, the controls, standards and Commission with information on prices, Title 6— ECONOMIC criteria established for the post-freeze costs, and profits in accordance with reg­ economic stabilization period. The pur­ ulations issued by the Price Commission. pose is also to establish categories of § 101.15 Price category III firms; moni­ STABILIZATION economic units which must comply with toring and spot checks. the prenotification, reporting, and other Chapter I— Cost of Living Council procedural requirements prescribed by (a) A price category I I firm is a firm the Cost of Living Council. In general, with annual sales or revenues of less than PART 101 — COVERAGE, EXEMPTIONS $50 million. AND CLASSIFICATION OF ECO­ such controls, standards and criteria are applicable to all price adjustments and (b) The price adjustments of price NOMIC UNITS to all pay adjustments, unless otherwise category ITT firms are not subject to pre­ Part 101—Coverage, Exemptions and provided, regardless of the category into notification or reporting. However, they Classification of Economic Units is added which any such adjustment falls. How­ are subject to monitoring and spot to Title 6, Chapter I, Code of Federal ever, the procedural requirements vary checks, as are price adjustments by firms Regulations. depending upon the category. in other categories. Since the immediate implementation (b) This part applies to all price ad­ § 101.17 Reclassification. justments and all pay adjustments which of Executive Order No. 11627 is required, (a) Upon the recommendation of the the Council finds that notice and public occur during the post-freeze economic stabilization period, except those which Price Commission, the Director of the procedure with respect to these regula­ Cost of Living Council has authority to tions is impracticable and that good are specifically exempt under this part. (c) This part does not apply to eco­ reclassify firms so as to subject a price cause exists for making the regulations category I I firm to the procedures appli­ effective in less than 30 days. Therefore, nomic transactions which are not prices, rents, wages, and salaries within the cable to price category I firms, and to Title 6 of the Code of Federal Regula­ subject price category IH firms to the tions is amended by adding a new Title meaning of the Economic Stabilization Act of 1970, as amended. Examples of procedures applicable to price category I 6, by adding a new Chapter I, and by firms or price category H firms. adding a new Part 101, as set forth below, transactions not within the meaning of (b) I f the pay adjustments of a firm effective at 12:01 a.m. on November 14, the Act are; (1) State or local income, sales and are classified as category I pay adjust­ 1971. real estate taxes; ments, the Director of the Cost of Living D o n a ld R u m s f e l d , (2) Workmen’s compensation pay­ Council has authority to reclassify the Director, Cost of Living Council. ments; firm, for price adjustment purposes, as a price category I firm. I f the pay adjust­ Subpart A— General (3) Welfare payments; ments of a firm are classified as category Sec. (4) Child support payments; and 101.1 Purpose and scope. (5) Alimony payments. H pay adjustments and, for price adjust­ (d) The Cost of Living Council may ment purposes, the firm is classified in Subpart B— Price. Adjustments— Classification allow such exceptions or permit such ex­ category HI, the Director of the Cost of and Procedures emptions as it deems appropriate with Living Council has authority to reclassify 101.11 Price category I firms; prenotifica­ respect to the coverage, classification, the firm as a price category n firm. tion and reporting requirements. and other procedural requirements pre­ Subpart C— Pay Adjustments— 101.13 Price category n firms; reporting scribed in this part. Requests for excep­ requirements. Classification and Procedures 101.15 Price category III firms; monitoring tions to and exemptions from the cover­ and spot checks. age, classification, and other procedural § 101.21 Category I pay adjustments; 101.17 Reclassification. requirements of this part shall be sub­ construction pay adjustments; pre­ mitted to the Cost of Living Council notification requirements. Subpart C— Pay Adjustments— Classification and through procedures established by the Procedures (a) A category I pay adjustment Internal Revenue Service. means a pay adjustment which applies 101.21 Category I pay adjustments; con­ struction pay adjustments; pre­ Subpart B— Price Adjustments— to or affects 5,000 or more employees or notification requirements. Classification and Procedures which applies to or affects employees who 101.23 Category II pay adjustments; re­ are engaged in construction as defined by porting requirements. § 101.11 Price category I firms; prenoti­ section 11(a) of Executive Order No. 101.25 Category III pay adjustments; mon­ fication and reporting requirements. 11588, March 29,1971. itoring and spot checks. (a) A price category I firm is a firm (b) Prenotification of each proposed 101.27 Reclassification. with annual sales or revenues of $100 category I pay adjustment shall be sub­ Subpart D— Exemptions; Items Not Included in million or more. mitted to the Pay Board in accordance Coverage (b) Each price category I firm shall with regulations issued by the Pay Board. submit a prenotification to the Price 101.31 General. (c) No proposed category I pay adjust­ 101.32 Exemptions. Commission of each proposed price ad­ ment shall be put into effect unless such 101.33 Items not included in coverage. justment in accordance with regulations pay adjustment has been approved or issued by the Price Commission. permitted to take effect in accordance Subpart E— Definitions (c) No proposed price adjustment with regulations issued by the Pay Board. 101.51 Definitions.. shall be put into effect by any price cate­ gory I firm unless such price adjustment § 101.23 Category I I pay adjustments; Subpart F— Special Temporary Provisions has been approved or permitted to take reporting requirements. 101.101 Special provisions applicable from effect in accordance with regulations (a) A category II pay adjustment Nov. 14, 197 W a n . 1, 1972. issued by the Price Commission. means a pay adjustment which applies A uthority : The provisions of this Part 101 (d) Each price category I firm shall to or affects from 1,000 to 5,000 issued pursuant to Economic Stabilization submit quarterly reports to the Price employees. Act of 1970, as amended, Public Law 91-379, Commission with information on prices, 84 Stat. 799; Public Law 91-588, 84 Stat. 1468; (b) Each category n pay adjustment costs, and profits in accordance with reg­ shall be reported to the Pay Board in ac­ Public Law 92-8, 85 Stat. 13; Public Law ulations issued by the Price Commission. 92-15, 85 Stat. 38; Executive Order No. 11627, cordance with regulations issued by we October 15, 1971, 36 P.R. 20139. § 101.13 Price category II firms; report­ Pay Board. ing requirements. Subpart A— General § 101.25 Category III pay adjustments; (a) A price category I I firm is a firm monitoring and spot checks. § 101.1 Purpose and scope. with annual sales or revenues from $50 (a) A category HI pay (a) The purpose of this part is tomillion to $100 million. tVHps to means a pay adjustment which applies to (b) Each price category n firm shall establish the economic units and trans­ or affects less than 1,000 employees. actions which are covered by, and ex- submit quarterly reports to the Price

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 RULES AND REGULATIONS 21789

(b) Category m pay adjustments are Exempt Nonexempt Exempt Nonexempt ' not subject to prenotification and report­ Fresh potatoes, packaged Frozen french B a n a n a s ______ing. However, they are subject to moni­ or not. fries, Pomegranates __ toring and spot checks as are pay adjust­ dehydrated C u rrants______ments by firms in other categories. potatoes. P e rsim m o n s___ Unmilled rice______Milled rice. Garden plants Floral wreath, § 101.27 Reclassification. All raw nuts— shelled and Boasted, salted and cut (a) Upon the recommendation of the unshelled. or otherwise flowers. processed nuts. Pay Board, the Director of the Cost of Fresh mushrooms______Canned or freeze (b) Seafood products. Raw seafood Living Council has authority to reclassify dried products including those which have been category II pay adjustments to category mushrooms. shelled, shucked, iced, skinned, scaled, I pay adjustments, and to reclassify cate­ Fresh mint______Mint oil. eviscerated, or decapitated. gory III pay adjustments to category I Fresh hops. (c) Custom products and services. (1) pay adjustments or category I I pay pried beans, peas, and lentils. * The following products when custom adjustments. made to individual order: (b) If a firm is a price category I firm, Sugar beets and sugar Befined sugar. cane. (1) Leather goods; the Director has the authority to classify (ii) Wigs and toupees; all pay adjustments of the firm as cate­ Maple sap------Maple syrup and sugar. (iii) Fur apparel; gory I pay adjustments. I f a firm is a All seeds for planting. Seeds processed (iv) Jewelry. price category I I firm, the Director has for other uses. (2) The following custom services the authority to classify all pay adjust­ Baw coffee bean______Boasted coffee when provided to individual order: ments of the firm as pay category II pay bean. (1) Tailoring of clothing; adjustments, unless that firm’s pay ad­ All fresh vegetables and Canned and melons including: frozen (ii) Framing of pictures and mirrors; justments are already classified as cate­ (iii) Taxidermy. gory I pay adjustments. Tomatoes. vegetables. Lettuce. (d) Exports, imports, and shipping Subpart D— Exemptions; Items Not Sweet com. rates. (1) Exports, including products Included in Coverage Onions. sold to a domestic purchaser who certi­ Green beans. fies that the product is for export. § 101.31 General. Cantaloupe. (2) Imports, but only the first sale into Cucumbers ------Dill pickles. U.S. commerce. Price adjustments with respect to the Cabbage ------Packaged slaw. property and services set forth in this Carrots. (3) International ocean shipping rates. subpart are exempt from or not included Watermelons. in the coverage of the economic stabili­ Green peas. (e) Damaged and used products. zation program established pursuant to Asparagus. Damaged products and used products Pepper. other than rebuilt products. the Economic Stabilization Act of 1970 Broccoli. and Executive Order No. 11627, Octo­ (f) Government property. (1) Aban­ Cauliflower. doned or confiscated property sold by a ber 15, 1971. Spinach. Green lima beans. government agency (Federal, State or § 101.32 Exemptions. Honeydews. local) pursuant to authorization of a (a) Raw agricultural products. Agri­ Escarole. court. cultural products which retain their Garlic. (2) Property sold by the United States, original physical form and have not been Artichokes. including lease-sales. Eggplant. processed. Processed agricultural prod­ (g) Real estate. (1) Sales: Brussel sprouts. (1) Unimproved real estate. ucts are products which have been Beets. canned, frozen, slaughtered, milled, or (ii) Real estate with improvements Unpopped completed prior to August 15, 1971. otherwise changed in their physical form. popcorn ------Popped popcorn. Packaging is not considered a processing Stumpage, or trees Milled lumber, (iii) Real estate with improvements activity. Examples: cut from the completed on or after August 15, 1971, stump. if Exempt Nonexempt All fresh or natu- Canned, artificially (a) The sales price is determined after Live cattle, calves, Carcasses and meat rally dried dried frozen fruit or the completion of construction; or hogs, sheep and cuts. fruits, pack- juices, lambs. (b) The wage rates are known to the aged or not, in­ builder and are not altered by actions Live Poultry______Dressed broilers and cluding: of the Pay Board after the sales price is turkeys. Fresh oranges. __ Glazed citrus peel. Raw milk______Pasteurized milk and Grapes and Canned grapes, wine, established. processed products raisins. (2) Rentals: such as butter, A p p le s------Applesauce. (1) Industrial, farm, and nonresiden- cheese, ice cream. Peaches .______tial commercial property. Shell eggs, pack­ Frozen, dried or liquid Strawberries___ aged or loose. (a) Rental units, including houses, eggs. G ra p efru it_____ apartments, or any other residential Sheared or pulled Wool products. Pears ______wool. rental property, on which construction is Lem on s______Raw honeycomb Processed and blended Plums and Canned prunes and completed, and which are offered for rent honey. honeybutter product. for the first time, after August 15, 1971. Mohair. prunes. prune juice. Cherries ______(b) Rehabilitated dwellings for which Hay: bulk, pel­ Dehydrated alfalfa Cranberries____ the cost of rehabilitation exceeds one- leted, cubed or meal or alfalfa meal Avocados ______baled. third of the total value of the rehabili­ pellets. Blueberries_____ W h e a t______tated property (including the cost of Flour. Apricots ______Peed grains includ­ Tangerines_____ rehabilitation), offered for rent in the ing: newly rehabilitated condition for the Corn______Olives, Canned olives, Mixed feed. un cured. first time after August 15,1971. Sorghum______Cracked com. N ectarin es_____ Barley (h) Securities and financial instru­ Boiled barley. Raspberries____ Oats______ments. (1) Securities as defined in Boiled oats. Blackberries___ § 101.51. S o yb ea n ____ ~ Soybean meal and oil. Figs------Leaf tobacco Cigarettes and cigars. T an gelos______(2) Property subject to net leases as Baled cotton,"cot^ Cotton yarn, cottonseed Li mes ______defined in 26 United States Code 163(4) Jfnseed, cotton oil, cottonseed meal. D a te s ______(a). Unt. Papayas ______(3) Commercial paper.

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 RULES AND REGULATIONS 21790 Subpart F— Special Temporary (4) Commodity futures sold on an or­ “Firm” means any person, cropora­ ganized commodities exchange but not tion, partnership, joint-venture, or sole Provisions including the commodity (unless other­ proprietorship or any other entity how­ ever organized, including charitable, § 101.101 Special provisions applicable wise exempt). from Nov. 14,1971—Jan. 1,1972. (1) Miscellaneous. (1) Royalties and educational, or other eleemosynary in­ Notwithstanding the provisions of other payments from the sale of copy­ stitutions and any Federal, State, or rights, manuscripts, and like materials local governmental entity. §§ 100.11 and 100.21: “Pay adjustment” means a change in (a) Pay adjustments scheduled to take prepaid for publication. (2) Dues paid to nonprofit organiza­ wages and salaries which includes all effect between November 14, 1971 and forms of direct or indirect remuneration January 1,1972 pursuant to existing con­ tions. (3) Wages below the minimum wage or inducement to employees by their em­ tracts or pay practices in effect before ployers for personal services, which are November 14, 1971, need not be prenoti­ established by Federal law. fied to, or approved by, the Pay Board, (4) Insurance premiums charged for reasonably subject to valuation, including but not limited to: Vacation and holiday but must be reported to the Pay Board all new life insurance policies including payments; bonus; layoff and severance in accordance with its regulations and ordinary, term, and group policies, and pay plans; supplemental unemployment will be otherwise subject to such regula­ individual endowments and annuities benefits; night shift, overtime, produc­ tions. The provisions of this subpara­ (fixed and variable), but excluding tion; and incentive pay; employer con­ graph shall not apply to pay adjustments credit-life insurance. tributions for insurance plans (but not which are subject to the provisions of (5) Antiques. including public plans, e.g. old age, sur­ Executive Order No. 11588, March 29, (6) Art objects including, paintings, vivors, health, and disability insurance 1971. etchings, and sculpture. under the Social Security system, Rail­ (b) After November 14,1971 and until (7) Collectors’ coins and stamps. road Retirement Acts, Federal Insurance January 1, 1972, a price category I firm (8) Precious stones and mountings Contributions Act, Federal Unemploy­ is not required to submit a prenotifica­ into which precious stones are set. ment Tax Acts, Civil Service Retirement tion and obtain approval of a proposed (9) Rock and stone specimens. Acts and the Carriers and Employees Tax price adjustment if it meets the criteria (10) Handicraft objects. Act) ; savings, pension, profit sharing, of § 300.51 of this title. § 101.33 Items not included in coverage. annuity funds, and other deferred com­ [FR Doc.71-16762 Filed 11-12-71;7:08 pm] pensation and welfare benefits; pay­ The following items are not covered ments in kind, job perquisites; housing by this part or Executive Order No. 11627, allowances; uniform and other work Chapter II—-Pay Board October 15, 1971, on and after the ef­ clothing allowances (but not including fective date of this part. employer-required uniforms and work PART 201— STABILIZATION OF (a) Federal pay adjustments. Federal clothing whether or not for safety pur­ WAGES AND SALARIES Government employees’ pay adjustments poses) ; cost-of-living allowances; com­ On August 15, 1971 the President an­ which are based upon Federal law and mission rates, stock options, and other nounced a freeze on prices, rents, wages, regulations and are determined by Presi- fringe benefits; and benefits which result and salaries for a period of 90 days end­ , dential directives and adjustments in the in more pay per hour or other unit of compensation and allowances of mem­ ing midnight, November 13,1971. By Ex- work or production (e.g. by shortening ecutive Order No. 11627 of October 15, the workday without a proportionate bers of the Armed Forces. 1971, the President provided for an or­ (b) Raw sugar prices. Raw sugar price decrease in pay). derly transition from the 90-day general adjustments, which are controlled under “Pay Board” means the Board estab­ lished pursuant to section 7, Executive freeze to a more flexible system of eco­ the provisions of the Sugar Act of 1948, nomic restraints. Under that Order, the as amended. Order No. 11627, October 15, 1971. “ Prenotification” means notice submit­ President established a Pay Board to be Subpart E—-Definitions ted to the Price Commission or Pay composed of 15 members (i.e., five repre­ sentatives each from labor, businessman § 101.51 Definitions. Board relating to a proposed price ad­ justment or pay adjustment. the general public) to be appointed by As used in this part— “ Price adjustment” means a change in him. On November 8,1971, the Pay Board ‘‘Annual sales or revenues” means the the unit price of property or services or adopted policies governing pay adjust­ total income of a firm during its most re­ a decrease in the quality of substantially ments to be effective after the 90- ? cent fiscal year from whatever source the same property or services, unless ex­ general freeze. A statement of that policy derived. , empt or outside the scope of the Eco­ is set forth below as an appendix to “ Cost of Living Council” means the nomic Stabilization Act of 1970, as regulations prescribed by the Pay Boar • Pursuant to the authority .vested m Council established pursuant to Execu­ amended. tive Order No. 11615, August 15, 1971, as the Pay Board by the Economic Stabij - “Price Commission” means the Com­ zation Act of 1970, as amended (Public amended, and continued under the provi­ mission established pursuant to section 8, Law 91-379, 84 Stat. 799; Public Law 91- sions of Executive Order No. 11627, Oc­ Executive Order No. 11627, October 15, 558, 84 Stat. 1468; Public Law 92-8, w tober 15,1971. 1971. Stat. 13; Public Law 92-15, Stat. 3» ■ “ Employer” means a firm which em­ “ Security” means any note, stock, Executive Order No. 11627 (36 F.R. 2 > ploys one or more persons who receive a treasury stock, bond, debenture, evidence October 16, 1971), and Cost of Living wage or salary. of indebtedness, certificate of interest or Council Order No. 3 (36 F.R. 20202, “ Exception” means a waiver in a par­ participation in any profit-sharing tober 16, 1971), the Pay Board hereby ticular case of the requirements of any agreement, collateral-trust certificate, adopts the following regulations (mciu order or regulation issued pursuant to the preorganization certificate or subscrip­ ing the policy statement) Economic Stabilization Act of 1970, as tion, transferable share, investment con­ tion of the President’s economic progra amended. tract, voting-trust certificate, certificate A new Chapter H—Pay Board is hereby “ Exemption” means a general waiver of deposit for a security, fractional undi­ established in title 6-Econom c Stam^ with respect to a certain class of prop­ vided interest in oil, gas, or other mineral zation of the Code of Federal R ^ a h o erty, services, or economic transactions rights, or, in general, any interest or and a new Part 201-Stabihzatmj set forth in Executive Order No. 11627, instrument commonly known as a “secu­ Wages and Salaries is added therem.^ October 15, 1971, or these regulations rity,” or any certificate of interest or participation in, temporary or interim Because of the need for and which excludes such property, serv­ guidance from the Pay J*these ices, or economic transactions from the certificate for, receipt for, guarantee of, spect to the provisions contained in ™ application of the Economic Stabiliza­ or warrant or right to subscribe to our regulations, it is hereby found impracn tion Act of 1970, as amended. purchase, any of the foregoing.

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 RULES AND REGULATIONS 21791 cable to issue such regulations with no­ (b) To the extent that neither the Cost tice and public procedure thereon under § 201.11 Review o f new contracts and of Laving Council nor the Pay Board pay practices in relation to the wage 5 U.S.C., sec. 553(b), or subject to the issues regulations with respect to specific and salary standard. effective date limitation of 5 U.S.C., sec. matters concerning wages and salaries, 553(d). such matters shall continue to be subject In reviewing new contracts and pay to Economic Stabilization Regulation practices, the Pay Board will consider Effective date. This part shall be ef­ ongoing collective bargaining and pay fective at 12:01 a.m. on November 14, No. 1, as amended, and the circulars is­ sued pursuant thereto. practices, and the equitable position of 1971. the employees involved, including the G eorge H . B o ld t, § 201.3 Definitions. impact of recent changes in the cost of Chairman of the Pay Board. For purposes of this part— living upon the employees’ compensation. Subpart A— Introduction “ Party at interest” means : § 201.12 Reduction of wages and sal­ Sec. (1) A bargaining representative of aries. 201.1 Purpose. employers who could be required to pay No reduction in wages and salaries 201.2 Extent to which the regulations the wages and salaries in question, or in under this chapter supersede or the absence of such bargaining repre­ being paid November 13, 1971, will be affect prior regulations and other sentative, an employer who could be re­ required pursuant to this part unless and published matter. quired to pay the wages and salaries in to the extent that such wages and sal­ 201.3 Definitions. question; or aries were increased in violation of the Economic Stabilization Act of 1970, as Subpart B— Pay Stabilization (2) A bargaining representative of employees who could receive payment of amended, and orders and regulations 201.10 General wage and salary standard. issued pursuant thereto. , 201.11 Review of new contracts and pay wages and salaries in question, or in the practices in relation to the wage absence of such bargaining representa­ § 201.13 Scheduled increases in wages and salary standard. tive, an employee who could receive pay­ and salaries for services rendered 201.12 Reduction of toages and salaries. ment of wages and salaries in question. after August 15, 1971, and before 201.13 Scheduled increases in wages and “Wages and salaries” includes all forms November 14, 1971. salaries for services rendered after August 15, 1971, and before No­ of direct and indirect remuneration or Payments of scheduled increases in vember 14, 1971. inducement to employees by their em­ wages and salaries for services rendered 201.14 Wage and salary increases effective ployers for personal services, which are by employees after August 15, 1971, and after November 13, 1971. reasonably subject to valuation, includ- before November 14, 1971, which were 201.15 Unaffected wages' and salaries. i ing but not limited to: Vacation and holi­ not made because prohibited by the Appendix—Policies Governing Pay Adjust­ day payments; bonuses; layoff and freeze, may be made retroactively only if ments Adopted by the Pay Board Novem­ severence pay plans; supplemental un­ approved by the Pay Board. The Pay ber 8, 1971 employment benefits; night shift, over­ Board may approve such payments in the time, and incentive pay; employer con­ Au t h o r it y : The provisions of this Part 201 following circumstances applicable to in­ Issued under Economic Stabilization Act of tributions for insurance plans (but not dividual cases or categories of cases: 1970, as amended (Public Law 91-379, 84 including public plans, e.g. old-age, sur­ (a) It is demonstrated that the em­ Stat. 799; Public Law 91-558, 84 Stat. 1468; vivors, health, and disability insurance ployer of the employees on whose behalf Public Law 92—8, 85 Stat. 13; Public Law under the Social Security system, Rail­ 92-15, Stat. 38), Executive Order No. 11627 such payment is being sought raised the road Retirement Acts, Federal Insurance prices for his products or services prior (36 P.R. 20139, Oct. 16, 1971), and Cost of Contributions Acts, Federal Unemploy­ Living Council Order No. 3 (36 FJt. 20202, to August 16, 1971, in anticipation of Oct. 16, 1971). ment Tax Acts and Civil Service Retire­ wage and salary increases scheduled to ment A cts); savings, pension, profit shar­ be paid to such employees after Au­ Subpart A— Introduction ing, annuity funds, and other deferred gust 15, 1971. compensation and welfare benefits; pay­ § 201.1 Purpose. (b) It is demonstrated that a wage ments in kind; job prerequisites; hous­ and salary agreement or pay schedule or The purpose of these regulations is to ing allowances; uniform and other work practice adopted after August 15, 1971, establish rules and standards to stabilize clothing allowances (but not including succeeded an agreement, schedule, or wages and salaries, as defined in § 201.3, employer-required uniforms and work practice that expired or terminated in accordance with the provisions of clothing whether or not for safety pur­ prior to August 16, 1971, and retroactiv­ Executive Order No. 11627, and to pro­ poses) ; cost-of-living allowances; com­ ity is demonstrated to be an established vide guidance and procedures for an mission rates, stock options, and other past practice of an employer and his orderly transition from the 90-day gen­ fringe benefits; and benefits which result employees or retroactivity had been ia l freeze imposed by Executive Order in more pay per hour or other unit of agreed to prior to November 14, 1971. No. 11615. All persons are required by work or production (e.g. by shortening (c) It is demonstrated that the pro­ to comply with the provisions of the the workday without a proportionate de­ posed retroactive payment satisfies such Economic Stabilization Act of 1970 as crease in p ay). further criteria as the Pay Board may amended, and all Executive orders, regu­ hereafter establish to remedy severe lations (including this regulation), circu­ Subpart B— Pay Stabilization inequities. lar, and orders issued thereunder, and § 201.10 General wage and salary stand­ aa persons are expected to comply vol- ard. § 201.14 W age and salary increases ef­ with such law, orders, and fective after November 13, 1971. regulations. The policies governing pay On and softer November 14, 1971, the Existing contracts and pay practices adjustments, adopted by the Pay Board general wage and salary standard shall previously set forth will be allowed to be applicable to new labor agreements ann^°^ml)er 8> 1971> are attached as an operate according to their terms except appendix to this part. and, where no labor agreement is in that specific contracts or pay practices effect, to existing pay practices. On and are subject to review, when challenged ^ Extent to which the regulations' after such date, permissible annual ag­ by a party at interest or by five or more under this chapter supersede or affect gregate increases will be those normally members of the Pay Board, to determine prior regulations and other published considered supportable by productivity matter. whether any increase is unreasonably improvement and cost of living trends. inconsistent with the criteria established ni -L To extent that any provision Initially, the general wage and salary by this Board. In reviewing existing con­ No TConomic Stabilization Regulation standard is established as 5.5 percent. tracts and pay practices, the Pay Board thp ni as, amended> or any provision of The appropriateness of this figure will will consider ongoing collective bargain­ circulars issued pursuant thereto Is be reviewed periodically by the Pay ing and pay practices and the equitable r e^Ps*5tent with the provisions set forth Board, taking into account such factors position of the employees involved, in­ as the long-term productivity trend of cluding the impact of recent changes in , a c^aPter, the provisions of this 3 percent, cost of living trends, and the apter shall be controlling. the cost of living upon the employee’s objective of reducing inflation. compensation.

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 21792 RULES AND REGULATIONS August 16 through November 13, 1971, may Subparts B—E [Reserved] § 201.15 Unaffected wages and salaries. be made only if approved by the Board in. Subpart F——Base Price specific cases. The Board may approve such Until further action of the Pay Board, Sec. those classes of wages and salaries which payments in cases which are shown to meet 300.501 In general. were held by the Cost of Living Council any of the following criteria: 300.505 Sales and leases of personal prop­ not to be subject to control by the freeze (i) Prices were raised in anticipation of erty and services. shall not be affected by this part. How­ wage increases scheduled to occur during 300.507 Sales and leases of real property. ever, this section shall not exempt any the “freeze.” 300.509 New property and new services. contracts subject to Executive Order No. (ii) A wage agreement made after Au­ 300.511 Geographic limitation. gust 15, 1971 succeeded an agreement that 300.513 Definitions. 11588 of March 29, 1971, relating to the had expired prior to August 16, 1971, and stabilization of wages and prices in the retroactivity was an established practice or Subpart G— Procedures and Administration construction industry, as amended by had been agreed to by the parties. 300.601 Records and ceiling price lists. Executive Order No. 11627 of October 16, (iii) Such other criteria as the Board may 300.612 Exceptions by ruling. 1971, further providing for the stabiliza­ hereafter establish to remedy severe 300.613 Rulings. tion of the economy, from the general inequities. 300.614 Adverse determinations and appeal. wage and salary standards in this part. 5. Following approval of special procedures 300.615 Failure to obtain relief. by the Pay Board with respect to hearing 300.616 Reports of alleged violations. A p p e n d ix “prior approval” cases and other special situ­ 300.651 Penalties. POLICIES GOVERNING PAY ADJUSTMENTS ations, application may be made for an ex­ A uthority : The provisions of this Part 300 ADOPTED BY THE PAY BOARD NOVEMBER 8, 1971 ception to the general pay standard and for issued under the Economic Stabilization Act a hearing on such matters as inequities and 1. Millions of workers in the Nation are of 1970, as amended (Public Law 91-379, 84 sub-standard conditions. looking to the Pay Board for guidance with Stat. 799; Public Law 91-558, 84 Stat. 1468; respect to permissible changes in wages, 6. No retroactive downward adjustment of Public Law 92-8, 85 Stat. 13; Public Law 92- salaries, various benefits and all other forms rates now being paid will be required by op­ 15, 85 Stat. 38), Executive Order No. 11627 of employee total compensation. It is impera­ eration of the general pay standard unless (36 F.R. 20139-, October 16, 1971), and Cost tive to have a simple standard with as broad the rates were raised in violation of the freeze of Living Council Order No. 4 (36 F.R. 20202, a coverage as possible at as early a date as or of the general pay standard. October 16, 1971). possible. There is probably a need for excep­ 7. Provisions may be considered for vaca­ tions and for individual consideration of tion plans, in-plant adjustments of wages Subpart A— General and salaries, in-grade and length of service special situations as soon as practical, and § 300.001 Summary. guidance to the millions whose pay relations increases, payments under compensation are relatively simple is an early essential. plans, transfers and the like. The rules contained in this subpart relate to increases in prices and rents 2. This general pay standard is intended, [FR Doc.71—16753 Filed 11-12-71;4:43 pm] in conjunction with other needed measures, which are allowable after November 13, to meet the objectives which led to the estab- 1971, with respect to: lishment of this Board. (a) Sales and leases of personal prop­ 3. The general pay standard should be ap­ Chapter III— Price Commission erty, ; < - . . plicable to: (b) The furnishing of services, and (1) Changes that need approval before be­ PART 300— PRICE AND RENT (c) Sales and leases of real property. coming effective; STABILIZATION (2) Changes that must be reported when See § 300.011 for the general rule re­ they become effective; and It is the purpose of the regulations garding increases in prices with respect (3) All other changes requiring compli­ hereby adopted to provide guidance and to sales and leases for property and with ance but not requiring specific approval or respect to services. For special rules ap­ reporting. procedures for the implementation of 4. (a) Effective November 14, 1971, the Price Commission policies designed to plicable to— general pay standard shall be applicable to achieve a goal of holding average price (d) Manufacturers, see § 300.012, new labor agreements and, where no labor increases across the economy to a rate (e) Retailers and wholesalers, see agreement is in effect, to existing pay prac­ of no more than 2V2 percent per year. It § 300.013, sL ma tices. The general pay standard would is expected that all persons will volun­ (f ) Service organizations, see § 300.014, provide: tarily comply with the provisions con­ (g) Rental property, see § 300.015, On and after November 14, 1971, permis­ tained in these regulations and all orders (h) Regulated industries, see § 300.016. sible annual aggregate increases would be those normally considered supportable by and other guidance issued hereunder. For rules relating to firms required to productivity improvement and cost of living In order to prescribe regulations for notify the Price Commission before a trends. Initially, the general pay standard is the stabilization of prices and rents after price and rent increase can take effect, established as 5.5 percent. The appropriate­ November 13, 1971, a new Chapter III— see § 300.051. For rules relating to ness of this figure will be reviewed periodi­ Price Commission is hereby established required to make periodic reports to tne cally by the Board, taking into account such in Title 6—Economic Stabilization of the Price Commission, see § 300.052. see factors as the long-term productivity trend of 3 percent, cost' of living trends, and the Code of Federal Regulations, and a new § 300.101 for definitions of terms usea objective of reducing inflation. Part 300—Price and Rent Stabilization is in this subpart. For rules with respec added thereto and the following regula­ to certain special situations, see § 300. In reviewing new contracts and pay prac­ tions are hereby adopted effective No­ and following. For rules exempting cer­ tices, the Pay Board shall consider ongoing tain transactions from the operation collective bargaining and pay practices and vember 14,1971: the equitable position of the employees in­ Subpart A— General this subpart, see § 300.401. volved, including the impact of recent Sec, §300.011 General rule. changes in the cost of living upon the em­ 300.001 Summary. ployees’ compensation. 300.011 General rule. Except as otherwise provided in tins (b) Existing contracts and pay practices 300.012 Manufacturers. subpart, no person may charge a Pnce previously set forth will be allowed to op­ 300.013 Retailers and wholesalers. rent, with respect, to any transaction erate according to their terms except that 300.014 Service organizations. volving sales or leases of property or s specific contracts or pay practices are sub­ 300.015 Rental of real property. ices occurring after November 13, • ject to review, when challenged by a party 300.016 Regulated public utilities. which exceeds the base price as de at interest or by five or more members of the 300.051 Prenotiflcation firms. Board, to determine whether any increase is 300.052 Reporting firms. mined under the rules prescribed m unreasonably inconsistent with the criteria 300.080 Other considerations. part F of this part. established by this Board. In reviewing exist­ 300.101 Definition of terms. } 300.012 Manufacturers. ing contracts and pay practices, the Pay 300.201 Seasonal patterns. Board shall consider ongoing collective bar­ 300.202 Taxes. A manufacturer may charge apncein gaining and pay practices and the equitable 300.203 Contracts entered into prior to sxcess of the base price (as de*® rpfleCt position of the employees involved, including August 15, 1971. inder Subpart F of this part), to the impact of recent changes in the cost of 300.204 Formula-determined rentals. tllowable cost increases in effect on living upon the employees’ compensation. 300.401 Exemptions. ifter November 14, 1971, reduced (c) Scheduled increases in payment for 300.498 May 25, 1970, limitation date. lect productivity gains; provided, now services rendered during the “freeze” of 300.499 Price Commission address.

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 RULES AND REGULATIONS 21793 ever, that the effect of all of a manufac­ the request using a letter, in substance (b) Special rule. In the case of rate turer’s price changes is not to increase its similar to the one specified below, and profit margin as a percentage of sales, increases which were approved by a reg­ signed by the owner or by an officer of ulatory agency before November 14, before income taxes, over that which pre­ the company: vailed during the base period tes defined 1971, but which were not permitted to in §300.101). To: (Name, Address, City, Zip) take effect due to Executive Order D e a r ______11615, such rate increase may take ef­ § 300.013 Retailers and wholesalers.* In reply to your request, we are pleased to fect with respect to transactions occur­ (a) In general. A person engaged in inform you that our base price fo r ______ring after November 13, 1971. However, retailing or wholesaling may charge a before such increases may take effect, is $______such regulatory agency shall review such price in excess of the base price where— Sincerely, (1) The customary initial percentage increases with regard to their consist­ ency with the purposes of the Economic markup with respect to the property Owner or company officer sold is equal to or less than such person’s Stabilization Act of 1970, as amended. customary initial percentage markup § 300.014 Service organizations. V§ 300.051 Prenotification firms. which prevailed during the base period A person which is a service organiza­ (as defined in § 300.101), provided (a) In general. A person which is a tion may charge a price in excess of the prenotification firm (as defined in (2) The effect of all such person’s price base price with respect to the furnish­ changes is not to increase its profit mar­ § 300.101) may not charge a price in ex­ ing of services or the leasing of personal cess of the base price before the Price gin as a percentage of sales, before in­ property only to reflect allowable cost in come taxes, over that which prevailed Commission has approved such increased effect on November 14,1971, and cost in­ price. However, in the event the Price during the base period. crease incurred after November 14, 1971, (b) Posting Requirement. ( 1 ) a re­ Commission does not act upon a re­ reduced to reflect productivity gains: quested price increase within 30 days tailer is required to display prominently Provided, however, That such increased at the place of sale, base prices with after receipt by the Price Commission price shall not result in an increase in of the request for such increase, such respect to: such person’s profit margin as a percent­ (i) All food products (except those increase may go into effect. age of sales, before income taxes, which (b) Exceptions. Prenotification re­ which are exempt under the provisions prevailed during the base period. of § 300.401); and quirements are not applicable: (ii) Those 40 items in each department § 300.015 Rental of real property. (1) For wholesalers and retailers. (2) With respect to price changes re­ which have the highest sales volume, or (a)-(c) [Reserved] those items which account for 50 per­ sulting from calculation of a base price (d) Special record requirement. Per­under Subpart F of this part or from cent of total sales in each department, sons leasing or offering to lease any whichever is less. the operation of § 300.203, relating to real property shall maintain records contracts entered into prior to Au­ Such base prices must be posted on or showing— gust 15, 1971. before January 1, 1972. No increase in (1) The base price (as defined in Sub­ (3) In respect of any price increase price is allowable under paragraph (a) part P of this part) charged with re­ spect to each unit of real property, which reflects increases in costs of labor of this section until such base prices which become effective during the period have been posted. (2) The reason for any difference in November 14,1971, through December 31, (2) A retailer must utilize the follow­the price described in subparagraph ( 1 ) ing interim procedure until base prices of this paragraph and the price allowable are posted under subparagraph ( 1 ) of on or after November 14, 1971, and (c) Manner of notification. Such per- this paragraph, with respect to base (3) The reason for any difference be­ son shall notify the Price Commission prices for all products (except for those tween the price described in subpara­ of its intention to raise the price of a exempted under § 300.401), and there­ graph (1 ) of this paragraph and the product or service on forms to be pre­ after, with respect to base prices not maximum price allowable during the pe­ scribed by the Commission and shall posted under subparagraph ( 1 ) of this riod beginning August 15, and ending No­ provide information sufficient to enable Paragraph: vember 13, pursuant to Executive Order the Commission to make a determination 11615. with respect to such proposed increase. (i) There shall be posted on each floor I f the Commission finds that the infor­ ? . . establishment at least one sign Such records shall be made available mation submitted is not sufficient to (minimum of 22" x 2 8 "), as specified be- upon the request of any tenant, prospec­ make such a determination it shall notify ow, announcing availability of base price information: tive tenant, or representative of the Price the person and the 30-day period pro­ Commission. vided in paragraph (a) of this section Base P rice I n f o r m a t io n shall begin to run from the time the ad­ § 300.016 Regulated public utilities. fnini0rmation regarding the lawful base price ditional information is submitted. aay hem sold by this store not posted (a) In general. A person which is a (d) Reporting requirement. Such per­ may be obtained by filling in a Base Price regulated public utility as defined in sec­ son shall file a quarterly report with the , ° ™ atlon Request Form available at tion 7701(a) (33) of the Internal Revenue Price Commission within 15 days after in?v y location) and by handing it to (fill Code of 1954 (26 U.S.C. section 7701(a) the end of each fiscal quarter commenc­ °niuWl11 receive a speedy answer by mail. (33)) may charge a price, rate, or tariff T*lere shall be made available in at ing with its first fiscal quarter ending in excess of the base price if such in­ after November 13, 1971. Such quarterly Price T°f location on each Selling floor, Base crease has been approved by a regula­ below- ° rmati° n ^ ecluest Forms, as specified reports shall be made on forms to be tory agency. A regulated person who had prescribed by the Commission and shall ase P rice I n f o r m a t io n R e q u e s t F o r m s gross receipts of $100 million or more contain the information required by during its most recent fiscal year ending furnish me with your base price such forms. on or before November 13,1971, shall in­ 6 following item sold in your store: 300.052 Reporting firms. Item______• form the Price Commission of all re- quests for rate increases and immediately 0 (Describe) (a) J71 general. A person which is a re­ Retail price notify the Commission in writing of any porting firm shall file a quarterly report Style No...... ” ~------agency order granting an increase and of with the Price Commission in the form any other authorized increase. A regu­ provided in paragraph (b) of this section Jamertment where sold -” ” ” " 1 ” ” ” ” ” lated person who had gross receipts be­ within 15 days after the end of each fiscal Address ___ ------tween $50 and $100 million during its quarter commencing with its first fiscal — — ------— — Z i p ” ” ” most recent fiscal year ending on or be­ quarter ending after November 13, 1971. fore November 13, 1971, shall immedi­ such J ïfi.retailer sha11 respond to each (b) Manner of filing. The quarterly re­ ately notify the Commission in writing of port required under paragraph (a) of form at«'re<ïuest for base price in- any agency order granting an increase tion within 48 hours from receipt of this section shall be made on forms to be and of any other authorized increase. prescribed by the Commission and shall

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 21794 RULES AND REGULATIONS event such as a previously planned in­ contain the information required by such (d) Reporting requirements— (1) The term “ firm” means a person troduction of new models. forms. Firm. whose gross income, in whole or in part, (d) Allowable price. If the require­ § 300.080 Other considerations. is derived from sales. For purposes of ments of paragraphs (b) and (c) of this this section, if a firm or firms are con­ section are met, the maximum price In making any determination, the which may be charged by such person Price Commission will take into account trolled directly or indirectly by another whatever factors it considers relevant to firm, the controlled firm or firms and the shall be either— controlling firm shall be treated as a (1) The base price determined under an equitable resolution of the case and the provisions of Subpart F of this part, considers necessary to achieve the over­ single firm. (2) Reporting firms. The term re­ or all goal of holding average increases (2) The price charged by such person across the economy to a rate of no more porting firm” means a firm subject to the during the first 30 days of the period fol­ than 2Yz percent per year. requirements of § 101.13 of Chapter I, Part 101 of this title. lowing the seasonal price adjustment in § 300.101 Definition of terms. (3) Prenotification firms. The term the preceding year, whichever is greater. (a) In general. Except as otherwise “prenotification firm” means a firm sub­ For purposes of this subparagraph (2), provided, the definitions contained in ject to the requirements of § 101.11 of the price charged during such 30-day this section shall only apply for purposes Chapter I, Part 101 of this title. period shall be the weighted average of of Subpart A of this part. (e) Base period— (1) Base period. The the prices charged on all transactions oc­ (b) Organizations subject to freeze— term “base period” means the average of curring during such period. (1) Manufacturer. The term “ manufac­ any two of a person’s last 3 fiscal years (e) Limitation. Notwithstanding the turer” means a person who carries on the ended prior to August 15, 1971, the selec­ provisions of paragraph (d ), of this sec­ trade or business of making, fabricating, tion of such 2 fiscal years to be made by tion, the price charged by such person or assembling a product or commodity by such person. may not result in an increase of its profit manual labor or machinery for sale to (2) Markup base period. The term margin as a percentage of sales, before another person or persons. “ markup base period” shall mean, at the income taxes, over that prevailing during (2) Retailer and wholesaler— (i) Re­ person’s option, either the base period. tailer. The term “ retailer” means a per­ (1) The last customary initial markup (f) Return to nonseasonal prices. son who carries on the trade or business prior to November 14, 1971, or Prices must be adjusted downward at of selling property to ultimate consumers. (ii) The person’s last fiscal year end­ the same" date or identifiable point in (ii) Wholesaler. The term “whole­ time as in the previous season. saler” means a person who carries on the ing prior to August 14,1971. trade or business of purchasing property (f) Base price. The term “base price” means base price as defined in Subpart § 300.202 Taxes. and, without substantially changing the Notwithstanding any other provision form of such property, reselling it to an­ F of this part. other person who is not the ultimate (g) Other definitions— (1) Product. of this subpart, prices with respect to transactions occuring after November 13, consumer. The term “ product” means an item of (3) Service organization. The term tangible personal property offered for 1971, may be increased dollar-for-dollar “ service organization” means a person sale to another person or persons. to reflect increases in excise taxes (in­ cluding sales and use taxes), and duties who carries on the trade or business of (2) Product line. The term “product selling or making available services, in­ on imports (including the import sur­ line,” means an aggregation of products charge imposed by the President on cluding the leasing of property to another of the same manufacturer or different August 15,1971), but not increased fran­ person or persons. The term also includes manufacturers, substantially similar as chise, gross receipts, property, or income nonprofit organizations, governments to intended function, usage, and and governmental instrumentalities structure, and offered for sale simultane­ taxes. which carry on such activities. The term ously, or within the same commercial 8 300.203 Contracts entered into prior also includes a person which provides season, by a person or persons. to August 15, 1971. professional services. (3) United States. The term “United Notwithstanding any other provisions (4) The term “ person” in­ Person. States” means the States, the District of of this subpart, the price specified in any cludes any individual, trust, estate, Columbia, the Commonwealth of Puerto partnership, association, company, cor­ binding contract for the sale of P^oper5 Rico. or services entered into prior to au poration, or instrumentality of a govern­ gust 15,1971, with respect to any dehvery mental unit. However, such term does not § 300.201 Seasonal patterns. or performance occurring after Novem include a foreign government, an in­ (a) In general. Notwithstanding any ber 13, 1971, shall be allow aW e Prided strumentality of a foreign government or provisions of this subpart, prices (includ­ that the contract price shall not excee an international organization. ing rents) which normally fluctuate in (c) Accounting terms— (1) Customary that amount which would result nian distinct seasonal patterns may be ad­ crease in the person’s profit margin^», initial percentage markup. The term justed subject to the provisions of this percentage of sales,' before incom > “customary initial percentage markup,” section. means, the customary initial percentage over that prevailing during the n (b) Distinct fluctuation. Prices must period. markup, determined on an item, product show a large or otherwise distinct fluc­ line, department, store or other pricing tuation at a specific, identifiable point § 300.204 Form u la-determ in ed rentals. unit basis according to the person’s cus­ in time. Such distinct fluctuation must tomary pricing practice. For these pur­ Leases of personal or real Property en­ be an established practice that has taken tered into prior to August ,15> L r. poses, the initial markup is that mark­ place in each of the past 3 years. New up which is applied to merchandise when which the periodic rental Pric® ^ 1f. ^ in persons may determine their qualifica­ mined by means of a formula specifi first offered for sale. tions from those generally prevailing (2) Allowable cost. The term “allow­ with respect to persons similarly situ­ the lease agreement may continue able cost” means any cost, direct or in­ ated, selling or leasing in the same mar­ such formula in effect. However, any ' direct, unless disallowed by the Price keting area. I f there are no such similar creases in the periodic rental price Commission. persons in the immediate area, qualifica­ the passage of time or increases m (3) Profit margins. The term “profit tion may be established by reference to consumer price index shall not be a margin,” means the ratio that net profits the nearest similar marketing area. (determined before taxes) bears to gross § 300.401 Exemptions. . sales as reported on the person’s pub­ (c) Time of price fluctuation. The lished financial statement and in accord­ price fluctuation referred to in para­ The provisions of this Part 3 ance with generally accepted account­ graph (b) of this section may not take apply to all transactions involving _ ing principles consistently applied. For place at a time other than the time at sale or lease of property and servic purposes of determining net profits, ex­ which such fluctuation took place in the cept those enumerated in Subpart preceding year unless the date of the traordinary items and taxes on income Part 10 of this title. shall not be taken into account. price fluctuation is tied to a specific

FEbERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 RULES AND REGULATIONS 21795 § 300.498 May 25, 1970, limitation stantially identical personal property in date. eration. A property, or part thereof, a substantial number of transactions which undergoes a substantial capital No provision in this subpart shall oper­ during the freeze base period. improvement shall be treated as new ate to require a person to establish a price (c) Ten-percent rule. For purposes of property for purposes of a lease. For or rent which is lower than the average paragraphs (a) and (b) of this section purposes of this paragraph a substantial price which was received by the person in and paragraph (b) of § 300.507, the high­ capital improvement means a permanent arms-length transactions involving the est price in a substantial number of improvement or betterment made to property or service on May 25, 1970. In transactions during the freeze base increase the value of the property or to cases where there were no arms-length period shall be the highest price at or restore the property or part thereof, the transactions on May 25, 1970; involving above which 10 percent of the units wëre cost of which equals or exceeds at least the person, the nearest date preceding priced in transactions with a specific 3 months’ rent and exceeds $250. May 25,1970, on which such a transaction class of pin-chasers during the freeze base (c) Personal property or services. Per­ period. did occur shall deemed to be May 25, sonal property or service shall be deemed 1970, for purposes of this section. How­ new if substantially different from other ever, the rules contained in this section § 300.507 Sales and leases o f real prop­ erty. property or services in purpose, func­ shall not apply if the person did not offer tion, quality, or technology or if the use the property or service on May 25, 1970, (a ) , Sales of real property. This sec­of such property or service effects a sub­ due to causes other than the temporary tion applies to sales of real property not stantially different result. Property or closing of his business. exempted under § 300.401. The base price services that differ from other property § 300.499 Price Commission address. with respect to the sale of any interest or services only in appearance, arrange­ in real property which is held by the per­ Any document, report, or other infor­ ment, combination, or function shall not son for sale in the ordinary course of be considered as new. A change in fash­ mation required by these regulations to be trade or business is the highest price re­ ion, style, form, or packaging will not sent directly to the Price Commission ceived with respect to the same type of ordinarily be deemed to create a new shall be addressed to—Price Commission, interest in similar real property during property or service. A property, or part 2000 M Street NW., Washington, DC the freeze base period. In the case of a 20508. thereof, which undergoes a substantial sale of an interest in real property which capital improvement shall be treated as is not held for sale in the ordinary course Subparts B— E [Reserved] new property for purposes of a lease. of a trade or business, such interest shall For purposes of this paragraph a sub­ Subpart F— Base Price be deemed to be new property for pur­ stantial capital improvement means a poses of paragraph (d) of § 300.509. § 301.501 In general. permanent improvement or betterment (b) Leases of real property— (1) in made to increase the value of the prop­ The rules in this subpart relate to the general. The base price for a lease of an erty or to restore the property, the cost determination of the base price for the interest in real property is the highest of which equals or exceeds at least 3 purposes of applying the provisions con­ price charged by the person with respect months’ rent and which exceeds $100. tained in Subpart A of this part, after to the same or substantially identical (d) Base price determination. In the November 13,1971, with respect to: rental units in a substantial number of casè of a person offering new property (a) Sales and leases of personal prop­ transactions during the freeze base or new services, the base price shall be erty, period. A provision is a lease of an inter­ deemed to be, at the election of such (b) The furnishing of services, and est in real property executed prior to person, either— (c) Sales and leases of real property. August 15, 1971, which provides for an (1) The price determined under the The base price is either (1) the ceiling increased rental to take effect August 14, method prescribed in paragraph (e) of price permitted for the period beginning 1971, may take effect after November 13, this section, or 1971, to the extent such increased rental August 15, 1971, and ending November (2) The price determined under the 13,1971, or (2) such ceiling price as ad­ does not exceed the base price for the rental of such real property. method prescribed in paragraph (f) of justed in accordance with the rules pro­ this section. vided in this subpart, which shall then (2) Property vacant during freeze base period. I f the property had been (e) First method. The method referred constitute the base price. See § 300.505 to in paragraph (d )(1 ) of this sec­ rullles relating to the determination of vacant for more than 1 year prior to t.bp beginning of the lease period, the provi­ tion is a method by which a person may the base prices with respect to sales and determine the price with respect to new leases of personal property and with re­ sions of § 300.509(b) relating to new real property shall apply. property or, services by a computation spect to services, § 300.507 for rules relat­ based on the unit cost (including direct i f , the determination of -base prices § 300.509 New property and new serv­ and indirect costs) of a similar property with respect to sales and leases of real ices. or services of such person plus a factor and § 300.509 for rules relating (a) In general. For purposes of this for profit (before income taxes) which the determination of base prices with equals the profit rate actually earned pect to sales and leases of new prop­ section, new property or new services means property or services which the with respect to such similar property or erty and with respect to new services, as services. The rules in this paragraph therein defined. person has not offered for sale (or lease in the case of property) at any time shall not be applicable to transactions §300.505 Sales and leases o f personal during the 1-year period immediately involving property or services with re­ property and services. preceding the date on which the person spect to which the person offers no other is offering the property or service for sale property or services which are similar servLSa^ f of Pers° ™ l Property and (or lease). thereto. salS S ' 1116 base prlce with aspect to (f ) Second method. The method aies of person^ property and services is (b) Lease of real property. In the case of a person offering real property for referred to in paragraph (d )(2 ) of this t b a 5 E S price charged by the person section is a method by which a person class of Purchasers in a sub- lease which was never previously leased, the base price shall be determined by a may determine the price with respect to surhS number of transactions involving new property or services by a computa­ thp fPersonal Property or services during computation based on the average arms- length price received by persons leasing tion based on the average prices received 5 300*513? baSe Peri0d (as defined in comparable property in the same mar­ in a substantial number of arms-length keting area. For purposes of determining transactions by persons selling or leas­ ° f Personal property. The the average price referred to in the ing comparable property or services in the same marketing area. K j g * ^ th respect t0 the leasing of preceding sentence, only a quantity of ihareprt .property is the highest price transactions which is not insubstantial § 300.511 Geographic limitation. tfithiSrS5 a specific class of purchasers in relation to the total.number of such respect to leases of the same or sub- The provisions of this subpart shall not transactions need be taken into consid- be applicable to transactions for sales,

No. 220—Pt. Ill----2 FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 21796 RULES AND REGULATIONS such accounts or records occurred or the leases, or services occuring outside fessional services of any kind and services rendered by membership associations for property was acquired by such person, the United States. For purposes of whichever is later. this paragraph, a transaction shall which dues are charged. be deemed to occur outside the United (j) Sale. The term “ sale” includes all V '§ 300.612 Exceptions by ruling. s^les, exchanges, transfers, and disposi­ States if delivery of the property (a) In general. The Chairman of the or rendering of the service which is the tions. Price Commission, or his delegate, will by (k) Lease. The term “lease” includes subject matter of the transaction occurs rulings make such exceptions from the any contract for the use of real or per­ outside the United States, or if real estate operation of this Part 300 as the Price which is the subject matter of the trans­ sonal property of any description. Commission deems necessary for the pur­ action is located outside the United (l) Rent. The term “ rent” means any pose of preventing or correcting gross price for the use of real or personal prop­ States. I f personal property which is the inequities. subject of a lease is used both inside and erty of any description. The term also in­ (b) Requests for exceptions. Except as outside the United States during the cludes any charge, no matter how de­ otherwise prescribed by the Price Com­ period of the lease, the transaction shall nominated in the lease or other agree­ mission, persons requesting exceptions be deemed to have occurred exclusively ment, for the use of any property or for from the operation of this Part 300 should in the United States and the provisions any service in connection with the use of submit their request, in writing, to the of this subpart shall apply. Similarly, if leased property. District Director of Internal Revenue for services are partially rendered in the (m) Class of purchasers. The term the district in which such person has his United States and partially outside the “ class of purchasers” means purchasers residence or principal place of business. United States, the services shall be to whom a person has charged a com­ The request should state the reason why deemed to have been performed exclu­ parable price for comparable property or the exception is being requested and sively in the United States. service during the freeze base period pur­ should contain sufficient information to suant to customary price differentials be­ § 300.513 Definitions. establish to the satisfaction of the Price tween those purchasers and other pur­ Commission that— (a) In general. Unless otherwise indi­ chasers. The term “ customary price dif­ ( 1 ) The application of the provisions of cated, the definitions contained in this ferentials” includes, but is not limited to, this part to such person would result in a section shall apply for purposes of Sub­ price distinctions based on discounts, al­ serious hardship or gross inequity, and parts F and G of this part. lowances, add-ons, premiums, and extras (2) That the request for exception is (b) Transaction. A “transaction” shall based on differences in volume, grade, not part of a plan having as one of its be deemed to occur at the time and place quality, or location or type of purchaser, principal purposes the avoidance of the a binding contract is entered into be­ or terms or conditions of sale or delivery. purposes of the Economic Stabilization tween the parties to the transaction. A Act of 1970, as amended, and this Part “transaction” shall mean an arms-length Subpart G— Procedure and Administration 300. (See § 300.613 for a more detailed) transaction, and shall include only trans­ description of the manner in which a rej actions between unrelated persons which § 300.601 Records and ceiling price quest for determination by the Price are not members of a controlled group. lists. Commission should be made.) (c) United States. The term “ United States” means the States, the District of (a) In general. Any person who sells § 300.613 Rulings. Columbia, and the Commonwealth of property or services, or leases property subject to the price and rent stabiliza­ (a) In general. In the interest of sound Puerto Rico. tion requirements of this Part 300 shall administration of the Economic Stabi­ (d) Person. The term “ person” in­ lization A ct of 1970, as amended, and this cludes any individual, estate, trust, part­ keep such permanent books of account or records as are sufficient to establish the Part 300, the Internal Revenue Service nership, association, company, corpora­ will answer inquiries of persons regard­ tion, governmental unit, or instrumen­ base prices for all such property or serv­ ices offered for sale or lease by such per­ ing their status for price and rent stabi­ tality of a governmental unit. However, lization purposes and as to the applica­ such term does not include a foreign son and the prices at which such prop­ erty or services were actually sold or bility of this Part 300 to their proposed government, an instrumentality of a for­ acts or transactions. eign government, an international orga­ leased. (b) Inspection of records or lists. Rec­ (b) Price stabilization ruling. A “Price nization. Stabilization Ruling” is an official inter­ (e) Freeze base period. The term ords required to be maintained under paragraph (a) of this section shall be pretation of the law by the Internal Rev­ “ freeze base period” means either— enue Service which has been published ir (1) The period beginning July 16,1971, made available for inspection at any time upon the request of an officer or the Price Stabilization Bulletin. Price and ending August 14, 1971, or Stabilization Rulings are published mi (2) If a person had no transaction dur­ employee of the Internal Revenue Serv­ ice for the purpose of ensuring compli­ the information and guidance of ing the period specified in subparagraph Price Commission, Internal Reven (1) of this paragraph, the nearest pre­ ance with the requirements of this part. (c) Special rule for imported items. In Service officials and others concerned. ceding 30-day period in which he had a addition to the records and lists required transaction. (c) Ruling guidelines. (1) Rulings wa to be maintained under paragraphs (a) be issued only with respect to prosp (f) Unrelated person. The term “un­ and (b) of this section, any item which related person” refers to a person other tive transactions, has been imported into the United States (2) Rulings will not be issued on a e than a person described in 26 U.S.C. sec­ and upon which an import surcharge has tion 267(b), as amended. native plans of proposed transactio been imposed by the President in con­ on hypothetical situations. (g) Controlled group. The term “con­ junction with other measures taken un­ (3) A ruling will not be issued if tn trolled group” means a controlled group der the Economic Stabilization Act of national office of the Internal R ( of corporations as defined in 26 U.S.C. 1970, as amended, shall, when sold, Service knows or has reason to d section 1563(a). clearly have indicated upon the accom­ that the same or identical issue me (h) Price. The term “price” includes panying sales ticket or invoice the exact nection with a possible violation commissions, membership dues, mar­ amount of the import surcharge the sell­ part by the person who is the sub] gins, rates, fees, charges, tariffs, and er is passing on to the customer or that the ruling request is before any fiela o1 premiums without regard to the form in such an import surcharge though so im­ posed, is not being passed on. flee of the Service or w which paid. The term also includes rents charged with enforcement of * JJ for the lease of real or personal property. (d) Period for keeping records. All (4) Further, a ruling will not be1 m (i) Service. The term “ service” in­ records required to be kept under this with respect to a matter upon, whi cludes all services rendered by one person section shall be maintained and preserved cent court decision adverse to aj for another person other than in an by the person required to keep such rec­ eminent has been handed down fol employment relationship (determined ords for at least 4 years after the last day of the calendar year in which the Government has decided whethe under the normal common law rules). low the decision or litigate furt The term also includes for example, pro- transactions or other events recorded in

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 RULES AND REGULATIONS 21797 (d) Instructions. Any person request­ initial determination following such con­ ing a ruling should direct such request, in ferior commodities, the failure to pro­ ference, the person affected may, within vide ^ the same services and equipment writing to the District Director of Inter­ 10 days after notice of such final deter­ nal Revenue for the district in which previously sold or leased, or in any other mination, file written application for an manner seeks to obtain a higher price such person has his residence or principal appeal, together with a brief outlining place of business. Each request for a rul­ or rent than is permitted by this part the basis for such appeal, with the Price shall be subject to the provisions o f para­ ing must include— Commission. A copy of the application for ( 1 ) A complete statement of all such graphs (b) and (c) of this section. appeal and the brief shall, at the same (b) Injunctions. Whenever it appears information as is relevant to the status of time, be directed to the Internal Revenue the person and proposed transaction un­ that any person is engaged, or is about to Service, Attention: Assistant Chief Coun­ engage, in any act or practice described der this Part 300, sel (Stabilization), Washington, D C (2) Copies of all relevant documents 20224. in paragraph (a) of this section, the affecting such status or transaction, and U.S. Government may, in its discretion, (3) A statement, executed under pen­ § 300.615 Failure to obtain relief. bring an action in the proper district court of the United States to enjoin such alty of perjury, that such statements and If a person is denied relief by the Price documents, to the knowledge of the per­ acts or practices. Upon a proper show­ Commission, either because of an adverse ing, a permanent or temporary injunc­ son making the request, are true and ac­ determination or because of the Price curate. Only one ruling request may be tion or restraining order may be granted. Commission’s refusal to grant an appeal, In addition, upon proper applications! made with respect to a particular.trans- such person may, within 30 days, file an action, and no ruling request may be such court may issue mandatory injunc­ action for relief in the appropriate U.S tions commanding any person to comply made with respect to an issue described District Court. in paragraph (c) (3) of this section. with any provision of this Part 300. (e) Determination letters. In the dis­ § 300.616 Reports o f alleged violations. (c) Fines. Any person who willfully violates the provisions of this Part 300 cretion of the Internal Revenue Service Whenever any person has reason to be­ the request of the person may be an­ shall, upon conviction thereof, be subject lieve that a violation of these regulations to a fine of not more than $5,000 for each swered with a determination letter di­ has taken place, such person should con­ rected solely to the attention of the per­ violation. See section 204 of title 2 of tact the nearest office of the Internal son in cases in which the Service deems Public Law 91-379 (84 Stat. 800). the question not of sufficient importance Revenue Service. Such cooperation on the Because the purpose of this Price Com­ to the Price Commission, the Internal part of every citizen will insure that the mission regulation is to provide immedi- Revenue Service, or the public in general price stabilization program achieves its ate guidance as to the price and rent to warrant the issuance of a ruling. maximum and intended effect. stabilization rules applicable after No­ vember 13, 1971, it is hereby found im­ § 300.614 Adverse determinations and § 300.651 Penalties. appeal. practicable to issue this Price Commis­ (a) Illegal practices. Any person who, sion regulation with notice and public If a person receives an adverse deter­ procedure thereon under 5 U.S.C., sec­ mination letter (as described in para­ by means of inducements, commissions, tion 533(b), or subject to the effective graph (e) of § 300.613) he may, within kickbacks, retroactive increases, trans­ date limitation of 5 U.S.C., section 553 10 days, file a written request for a con­ portation arrangements, p rem ium s dis­ (d ). ference with the district director who is- counts, special privileges, tie-in agree­ C. Ja c k s o n G r a y s o n , Jr., sued such adverse determination letter, ments, trade understandings, the falsi­ h the district director fails to reverse his Chairman of the Price Commission. fication of records, the substitution of in- [PR Doc.71-16759 Piled 11-12-71;4:43 pm ]

FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971 NOTICES 21798 eral or State, as may be available and (e) Conducting monitoring investiga­ tions as to the effectiveness of the stabi­ appropriate. COST OF LIVING COUNCIL 4. The Director, Office of Emergency lization program ; [Order No. 5] Preparedness, shall continue to exercise (f) Receiving, investigating, and re­ solving by obtaining compliance, where SECRETARY OF THE TREASURY responsibility and authority under Coun­ cil Order No. 1 as necessary to complete possible, complaints received with re­ Delegation of Authority Concerning actions in process and to effectuate an spect to program violations and recom­ orderly transfer of functions to the Pay mending enforcement action to the Com­ Implementation of Stabilization of mission, where necessary; Prices, Rents, Wages, and Salaries Board established by section 7 of the Executive order and the Price Commis­ (g) Making factual determinations on Pursuant to the Economic Stabili- sion established by section 8 of the Ex­ behalf of the Commission or in further­ ance of any functions herein delegated; inafter referred to as the Act), and the ecutive order. authority delegated to the Cost of Iky­ 5. Nothing in this order shall be con­ and ing Council by Executive Order No. strued to limit or otherwise supersede (h) Maintaining adequate records and 11627 (hereinafter referred to as the Ex­ the authority heretofore delegated to the the making of periodic reports to the ecutive order) it is hereby ordered as Pay Board by Council Order No. 3 or to Commission. 2. All executive departments and agen­ follows: , . . . .. the Price Commission by Council Order 1 There is hereby delegated to the cies shall furnish such necessary assist­ No. 4. ance to t-he Secretary as may be author­ Secretary of the Treasury (hereinafter 6. This order shall be effective at 12:01 ized by law. referred to as the Secretary), subject to a.m., November 14,1971. 3. The Secretary may redelegate to the general policy guidance of and co- . By direction of the Council. any agency, instrumentality, or official ordination with the Cost of Living Coun­ of the United States any authority cil (hereinafter referred to as the Coun­ D o n a ld R u m s f e l d , Director. under this order, and may, in carrying cil) fl-nd in accordance with the general out the functions delegated by this order, policy of the Act, authority to interpret, [FR Doc. 71-16760 Filed 11-12-71; 4:43 am] utilize the services of any other agencies, implement, administer, monitor, and en­ Federal or State, as may be available force the stabilization of prices, rents, wages, and salaries pursuant to the cov­ and appropriate. 4. This order shall be effective at 12:01 erage, classifications, and implementa­ PRICE COMMISSION a.m., November 14,1971. tion procedures established by the Coun­ [Order No. 1] cil. Such functions will include, but not ’h By direction of the Commission. SECRETARY OF THE TREASURY be limited to, the following: C. J a c k s o n G r a y so ií, Jr., (a) Operation and maintenance of lo­ Chairman. cal service and compliance centers es­ Delegation of Authority Concerning tablished in support of the economic Implementation of Stabilization of [FR Doc.71-16761 Filed 11-12-71:4:43 pm] stabilization program in Standard Prices and Rents Metropolitan Statistical Areas and such Pursuant to Executive Order 11627 and other places as the Secretary may deter­ PAY BOARD the authority delegated to the Price [Order No. 1] mine; . Commission (hereinafter referred to as (b) Dissemination of information and the Commission) by Cost of Living SECRETARY OF THE TREASURY guidance to the public; Council Order No. 4 (hereinafter referred Delegation of Authority Concerning (c) Issuance of rulings and the re­ to as the order), it is hereby ordered as ceiving, analyzing, and responding to in­ Implementation of the Stabilization follows: quiries relating to the application of 1. There is hereby delegated to the of Wages and Salaries regulations and other guidance issued by Secretary of the Treasury (hereinafter Pursuant to Executive Order 11627 and the Council and the establishment and referred to as the'Secretary), subject to the authority delegated to the Pay Board operation of an appeal procedure; the general policy guidance of and co­ (hereinafter referred to as the Board) (d) Receiving, analyzing, investigating, ordination with the Commission and by Cost of Living Council Order No. 3 and preparing and forwarding recom­ consistent with the general policy of Ex­ (hereinafter referred to as the order), it mendations upon applications for excep­ ecutive Order 11627 as developed by the is hereby ordered as follows: tions and exemptions from coverage, Cost of Living Council, authority to in­ 1. There is hereby delegated to tne classifications, and the implementation terpret, implement, administer, monitor, Secretary of the Treasury (hereinafter procedures to the Council for decision; and enforce the stabilization of prices referred to as the Secretary), subject to (e) Conducting monitoring investiga­ and rents pursuant to the criteria, stand­ the general policy guidance of and co­ tions as to the effectiveness of the stabi­ ards, and implementation procedures es­ ordination with the Board and consistent lization program; tablished by the Commission. Such func­ with the general policy of Executive Order (f) Receiving, investigating, and re­ tions will include, but not be limited to, 11627 as developed by the Cost of Living solving by obtaining compliance, where the following: Council, authority to interpret, nnpic* possible, complaints received with re­ (a) Operation and maintenance of ment, administer, monitor, and enforce spect to program violations and recom­ local service and compliance centers es­ the stabilization of wages and salaries mending enforcement action to the tablished in support of the economic sta­ pursuant to the criteria, standards, a Council, where necessary; bilization program in Standard Metro­ implementation procedures establisnea - (g) Making factual determinations on politan Statistical Areas and such other by the Board. Such functions will include, behalf of the Council in furtherance of places as the Secretary may determine; but not be limited to, the following. any functions herein delegated; and (b) Dissemination of information and (a) Operation and maintenance of i ■ (h) Maintaining adequate records andguidance to the public; cal service and compliance centers es­ the making of periodic reports to the (c) Issuance of rulings and the re­ tablished in support of the econom Council. ceiving, analyzing, and responding to stabilization program in Standard Metro­ politan Statistical Areas and such otner 2. All executive departments and inquiries relating to the application of places as the Secretary may determine, agencies shall furnish such necessary regulations and other guidance issued by (b) Dissemination of information a assistance to the Secretary as may be the Commission and the establishment authorized by law. and operation of an appeal procedure; guidance to the public; reCeiv- (d) Receiving analyzing, investigat­ (c) Issuance of rulings and the receiv 3. The Secretary may redelegate to ing, analyzing, and responding to in

FEDERAL REGISTER, VOL. 36, NO. 220'— SATURDAY, NOVEMBER 13, 1971 NOTICES 21799 (d) Receiving, analyzing, investigat­ enforcement action to the Board, where ing, and preparing and forwarding to the necessary; United States any authority under this Board for decision recommendations up­ (g) Making factual determinations on order, and may, in carrying out the on applications for exceptions from the behalf of the Board or in furtherance of functions delegated by this order, utilize criteria, standards, and the implementa­ any functions herein delegated; and the services of any other agencies, Fed­ tion procedures; (h) Maintaining adequate records and eral or State, as may be available and (e) Conducting monitoring investiga­ the making of periodic reports to the appropriate. Board. tions as to the effectiveness of the sta­ 4. This order shall be effective at 12:01 2. All executive departments and agen­ bilization program; a.m., November 14, 1971. (f) Receiving, investigating, and re­ cies shall furnish such necessary assist­ ance to the Secretary as may be author­ By direction of the Board. solving by obtaining compliance, where ized by law. George H. Boldt, possible, complaints received with respect 3. The Secretary may redelegate to any Chairman of the Pay Board. to program violations and recommending agency, instrumentality, or official of the [FR Doc.71-16763 Filed 11-12-71;7:18 pm ]

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FEDERAL REGISTER, VOL. 36, NO. 220— SATURDAY, NOVEMBER 13, 1971

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