Case No. 18-55682 United States Court of Appeals

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CASE NO. 18-55682

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MARISHA RUSSELL, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED,

Plaintiff and Appellant,

GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant and Appellee.

Appeal From The United States District Court, Southern District of California, Case No. 3:17-cv-00672-JLS-WVG, Hon. Janis L. Sammartino, Presiding

MOTION FOR LEAVE TO FILE BRIEF AS AMICI CURIAE OF CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA IN SUPPORT OF DEFENDANT-APPELLEE GOVERNMENT EMPLOYEES INSURANCE COMPANY

U.S. CHAMBER LITIGATION MUNGER, TOLLES & OLSON LLP CENTER Malcolm A. Heinicke Steven P. Lehotsky Katherine M. Forster 1615 H Street, N.W. 350 South Grand Avenue, Fiftieth Floor Washington, D.C. 20062 Los Angeles, California 90071-3426 Telephone: (202) 463-5337 Telephone: (213) 683-9100 [email protected] [email protected] [email protected]

Attorneys for Amicus Curiae Chamber of Commerce of the United States of America (2 of 135) Case: 18-55682, 10/31/2018, ID: 11068173, DktEntry: 24-1, Page 2 of 4

The Chamber of Commerce of the United States of America (“Chamber”) hereby moves, pursuant to Rule 29 of the Federal Rules of Appellate Procedure, for leave to file the accompanying brief as amicus curiae in the above-captioned matter.

The Chamber the world’s largest business federation. It represents 300,000 direct members and indirectly represents the interests of more than 3 million companies and professional organizations of every size, in every industry sector, and from every region of the country. The outcome of this proceeding has the potential to impact the Chamber’s members and other businesses throughout this country that seek in good faith to provide valuable retirement and other benefits to employees.

The Chamber respectfully requests permission to submit the accompanying brief so that it can present the Court with analysis on two points: (1) the proper construction of the FLSA’s regular rate exclusions in light of Encino Motorcars

LLC v. Navarro, 138 S. Ct. 1142 (2018), and (2) the validity of 29 C.F.R. §

778.215(a)(3), the interpretive guidance on which Plaintiff-Appellant bases her contention that trust contributions under Defendant-Appellee’s Profit Sharing Plan do not qualify for exclusion from the regular rate of pay. While the Chamber agrees with Defendant-Appellee’s analysis in its Answering Brief, and submits that the Court may affirm here without reaching the issue of whether § 778.215(a)(3) is

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valid, the analysis in the accompanying brief will assist the Court in the event it does find it necessary to determine the validity of § 778.215(a)(3).

Counsel for the Chamber sought the consent of the parties to file an amicus curiae brief in this matter. Defendant-Appellee consented. Plaintiff-Appellant did not respond to the Chamber’s request prior to the time this Motion was filed.

DATED: October 31, 2018 Respectfully submitted,

By: /s/ Katherine M. Forster

MUNGER, TOLLES & OLSON LLP Malcolm A. Heinicke Katherine M. Forster 350 South Grand Avenue, 50th Floor Los Angeles, CA 90071-3426 Telephone: (213) 683-9100 [email protected] [email protected]

Attorneys for Amicus Curiae Chamber of Commerce of the United States of America

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CERTIFICATE OF COMPLIANCE PURSUANT TO

FED. R. APP. 32(A)(7)(C) AND CIRCUIT RULE 32-1 Pursuant to Fed. R. App. P. 32 (a)(7)(C) and Ninth Circuit Rule 32-1, I certify that the attached brief is proportionally spaced, has a typeface of 14 points and contains 581 words.

DATED: October 31, 2018 Respectfully submitted,

By: /s/ Katherine M. Forster Katherine M. Forster MUNGER, TOLLES & OLSON LLP 350 South Grand Avenue, 50th Floor Los Angeles, CA 90071-3426 Telephone: (213) 683-9100 [email protected]

MUNGER, TOLLES & OLSON LLP Malcolm A. Heincke 560 Mission Street, 27th Floor San Francisco, CA 94105-3089 Telephone: (415) 512-4000 [email protected]

Attorneys for Amicus Curiae Chamber of Commerce of the United States of America

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CASE NO. 18-55682

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MARISHA RUSSELL, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED,

Plaintiff and Appellant,

GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant and Appellee.

Appeal From The United States District Court, Southern District of California, Case No. 3:17-cv-00672-JLS-WVG, Hon. Janis L. Sammartino, Presiding

BRIEF OF THE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA AS AMICUS CURIAE IN SUPPORT OF DEFENDANT- APPELLEE GOVERNMENT EMPLOYEES INSURANCE COMPANY

Attorneys for Amicus Curiae Chamber of Commerce of the United States of America (6 of 135) Case: 18-55682, 10/31/2018, ID: 11068173, DktEntry: 24-2, Page 2 of 124

CORPORATE DISCLOSURE STATEMENT The Chamber of Commerce of the United States of America (“Chamber”) states that it is a non-profit, tax-exempt organization incorporated in the District of Columbia. The Chamber has no parent corporation, and no publicly held company has 10% or greater ownership in the Chamber.

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TABLE OF CONTENTS Page

INTEREST OF AMICUS CURIAE ...... 6 INTRODUCTION AND SUMMARY OF ARGUMENT ...... 8 ARGUMENT ...... 13 I. GEICO Has Demonstrated That Its Cash Payments Are Properly Excluded From The Regular Rate Of Pay...... 13 II. GEICO Has Demonstrated That Plaintiff’s Trust Contribution Claims Fail Regardless of Whether 29 C.F.R. § 778.215(a)(3) Is Persuasive...... 16 III. Even If This Court Rejects The Above Contentions, The Trust Contributions Are Still Properly Excluded From The Regular Rate, Because GEICO Has Satisfied The Statutory Exclusion For Retirement Contributions, And Plaintiff’s Urged Application Of The Guidance Is Invalid...... 19 A. The Statutory Exclusion Must Be Interpreted Fairly, Not Narrowly Construed...... 20 B. GEICO’s Plan Satisfies The Requirements Of The FLSA...... 25 C. Section 778.215(a)(3)’s Extra-Statutory Requirement Is Not Entitled To Deference...... 26 1. Section 778.215(a)(3) Was Not A Contemporaneous Interpretation...... 29 2. Section 778.215(a)(3) Was Not Thoroughly Considered, Was Inconsistent With Earlier Pronouncements, And Was Offered Without Any Reasoning, Much Less Valid Reasoning...... 30 D. Finding That The Exclusion Applies Here Would Not Undermine The Purpose Of The Law And Indeed Would Support It...... 33 CONCLUSION ...... 36

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TABLE OF AUTHORITIES Page(s)

FEDERAL CASES Bamonte v. City of Mesa, 598 F.3d 1217 (9th Cir. 2010) ...... 27

Bay Ridge Operating Co. v. Aaron, 334 U.S. 446 (1948) ...... 14, 24

Brock v. Two R Drilling Co., 789 F.2d 1177 (5th Cir. 1986) ...... 14, 16 Carley v. Crest Pumping Technologies, L.L.C., 890 F.3d 575 (5th Cir. 2018) ...... 21

Cleary ex rel. Cleary v. Waldman, 167 F.3d 801 (3d Cir. 1999) ...... 26 Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) ...... 20, 28 Encino Motorcars LLC v. Navarro, 138 S. Ct. 1134 (2018) ...... 11, passim

Farmers Reservoir & Irrigation Co. v. McComb, 337 U.S. 755 (1949) ...... 24 Flores v. City of San Gabriel, 824 F.3d 890, 903 (9th Cir. 2016) ...... 28 Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718 (2017) ...... 23 Madison v. Resources for Human Development, Inc., 233 F.3d 175 (3d Cir. 2000) ...... 11, 27, 28 Martino v. Michigan Window Cleaning Co., 327 U.S. 173 (1946) ...... 24

Mosquera v. MTI Retreading Co., No. 17-2366, 2018 WL 3860514 (6th Cir. Aug. 14, 2018) ...... 21 3

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TABLE OF AUTHORITIES (Continued)

Page(s) Public Citizen v. U. S. Department of Justice, 491 U.S. 440 (1989) ...... 29

Roland Elec. Co. v. Walling, 326 U.S. 657 (1946) ...... 24

Siomkin v. Fairchild Camera & Instrument Corp., 174 F.2d 289 (2nd Cir. 1949) ...... 16 Skidmore v. Swift & Co., 323 U.S. 134 (1944) ...... 12, passim Tablada v. Thomas, 533 F.3d 800 (9th Cir. 2008) ...... 28

FEDERAL STATUTES 29 U.S.C. § 207(a)(1) ...... 21 29 U.S.C. § 207(e) ...... 22 29 U.S.C. § 207(e)(2) ...... 9

29 U.S.C. § 207(e)(3) ...... 17 29 U.S.C. § 207(e)(4) ...... 8, passim 29 U.S.C. § 213 ...... 22 Fair Labor Standards Act (“FLSA”) ...... 6, passim FLSA § 7(a)(1) ...... 21 FLSA § 7(e)(4) ...... 23, passim FLSA § 13 ...... 21

IRC § 165(a) ...... 32 IRC § 401 ...... 32

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TABLE OF AUTHORITIES (Continued)

Page(s)

FEDERAL REGULATIONS 29 C.F.R. 778.6(g)(iii) ...... 33

29 C.F.R. 778.215(a)(1) ...... 27

29 C.F.R. 778.215(a)(3) ...... 10, passim

29 C.F.R. § 778.1 ...... 27, 28 29 C.F.R. § 778.6(g) (1950) ...... 30, 31, 32 29 C.F.R. § 778.209 ...... 15 29 C.F.R. § 778.215 ...... 12, passim

29 C.F.R. § 778.215(a)(3) ...... 8, passim 29 C.F.R. § 778.503 ...... 14, 15 15 Fed. Reg. 623, 629 (Feb. 4, 1950) ...... 30 18 Fed. Reg. 3293-94 ...... 32 21 Fed. Reg. 4956 (June 27, 1956) ...... 32 23 Fed. Reg. 3301 (May 9, 1958) ...... 33

LEGISLATIVE MATERIALS Fair Labor Standards Act Amendments: Hearings on S. 49, etc., Before the Labor Subcomm. of the Committee on Labor and Public Welfare, 80th Cong. 198 (1948) ...... 34

OTHER AUTHORITIES The New Wage and Hour Law (1949) ...... 14, passim

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INTEREST OF AMICUS CURIAE1 The Chamber of Commerce of the United States of America (“Chamber”) is the world’s largest business federation. It represents 300,000 direct members and indirectly represents the interests of more than 3 million companies and professional organizations of every size, in every industry sector, and from every region of the country. An important function of the Chamber is to represent the interests of its members in matters before Congress, the Executive Branch, and the courts. To that end, the Chamber regularly files amicus curiae briefs in cases that raise issues of concern to the nation’s business community.

The Chambers seeks permission to file this brief to assist this Court in understanding the broader perspective of employers on the interpretation of their overtime obligations under the Fair Labor Standards Act (“FLSA”). The outcome of this proceeding has the potential to impact businesses throughout this Circuit

(and for business operating nationwide, the entire country) that seek in good faith to provide valuable retirement and other benefits to employees without incurring unexpected overtime liability. The Chamber, as an organization devoted to advancing the interests of commerce, is well positioned to address the importance

1 The Chamber has moved for leave to file this brief as amicus curiae. Pursuant to Federal Rule of Appellate Procedure 29, amicus curiae states that no counsel for any party authored this brief in whole or in part and no entity or person, aside from amicus curiae, its members, and its counsel, made any monetary contribution intended to fund the preparation or submission of this brief.

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of following settled norms and fairly, rather than unduly narrowly, interpreting regular rate exclusions in determining overtime obligations.

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INTRODUCTION AND SUMMARY OF ARGUMENT Plaintiff-Appellant Marisha Russell (“Plaintiff”) contends that when

Defendant GEICO made cash payments and retirement trust contributions for the benefit of her and other employees under its Profit Sharing Plan (PSP), it should have also factored these benefit payments into her regular rate of pay and then paid her and others additional overtime premiums. The District Court properly rejected these claims as a matter of law.

Plaintiff’s trust contribution argument now rests on the application of a single subsection of mere interpretive guidance. Specifically, Plaintiff contends that the statutory regular rate exclusion for retirement contributions set forth at 29

U.S.C. § 207(e)(4) does not apply to the retirement contributions at issue here because they were not made formulaically consistent with the guidance set forth at

29 C.F.R. § 778.215(a)(3).

The Chamber respectfully submits that (a) there is no reason for this Court to address the validity of this guidance here, because Defendant GEICO has offered several independently sufficient reasons why Plaintiff’s trust contribution claim fails regardless of the application of 29 C.F.R. § 778.215(a)(3); but if the Court reaches this issue nevertheless, then (b) Plaintiff’s urged application of the guidance set forth at 29 C.F.R. § 778.215(a)(3) is impermissibly inconsistent with

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the actual statute and would in fact undermine the purpose of that statutory exemption.

Defendant GEICO has set forth three independently sufficient reasons to conclude that it need not pay additional overtime premiums based on its retirement trust contributions.

First, GEICO is not required to make further premium overtime payments on its retirement trust contributions because these contributions are calculated as a percentage of total compensation and thus already factor in both straight and overtime wages. Indeed, for this same reason and as set forth below, the District

Court properly concluded that GEICO need not make additional overtime payments as a result of the cash payments made under the PSP. The same logic applies to the trust contributions and moots the need to consider whether any of the statutory regular rate exclusions apply at all.

Second, Plaintiff’s argument that GEICO’s retirement trust contributions do not satisfy the guidance in § 778.215(a)(3) rests on her contention that the pertinent contributions are discretionary. Regardless of the specific regular rate exemption for retirement trust contributions set forth in the statute at 29 U.S.C. § 207(e)(4), there is a separate exclusion for discretionary payments set forth at 29 U.S.C.

§ 207(e)(2), and it applies here by Plaintiff’s own admission.

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Third, even if the analysis reaches 29 U.S.C. § 207(e)(4) and the associated guidance on which Plaintiff relies, GEICO’s retirement trust contributions satisfy that guidance as set forth in 29 C.F.R. § 778.215(a)(3). Specifically, Plaintiff’s argument is that both the amount contributed by each employer under the plan and the amount then paid to each employee must be made pursuant to a definite formula. GEICO satisfies this test: First, once the bonus pool is funded by the

Board, the amount of each company’s contribution to the Planning Centers under the PSP is determined by a specific formula. See ER 101. And as Plaintiff concedes, after these contributions have been made, each employee’s individual share of the company contribution under the PSP is also determined by a specific formula. See id.

For these three independently sufficient reasons, Plaintiff’s regular rate claim fails, and there is no need for this Court to reach the validity of the guidance set forth in 29 C.F.R. 778.215(a)(3).

To the extent that the Court finds it necessary to do so, however, that guidance is entitled to no deference because it is unsupported and indeed contrary to the exclusion for retirement trust contributions set forth at 29 U.S.C. § 207(e)(4).

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similar benefits for employees.” Nothing in the statute requires that these contributions be made formulaically—instead, the statute’s only requirement as to the manner in which such contributions be made is that they be made irrevocably.

Plaintiff cannot and now does not dispute that the contributions here were made irrevocably.

Unable to evade the clear reach of the controlling, statutory regular rate exclusion here, Plaintiff first urges this Court to read the statutory exclusion narrowly under an antiquated principle. As GEICO correctly states, the Supreme

Court has recently invalidated the notion that courts are to construe FLSA exemptions narrowly. See Encino Motorcars LLC v. Navarro (Encino Motorcars

II), 138 S. Ct. 1134, 1142 (2018). This holding requires “fair” and not “narrow” construction of the FLSA’s overtime exemptions, including its regular rate exclusions. Specifically, both the overtime exemptions and the regular rate exclusions represent express exceptions to a general rule, and Encino Motorcars II commands that both the rule and the exceptions are integral parts of the statute to be interpreted fairly, not against either the employer or the employee.

In another effort to manufacture a basis for deference to her urged application of § 778.215(a)(3), Plaintiff refers to it as an “interpreting regulation[].” Opening Brief (“OB”) 29. It is no regulation at all. In Madison v.

Resources for Human Development, Inc., 233 F.3d 175, 186 (3d Cir. 2000), the

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court addressed the history of § 778.215 and held that there was “no doubt” that it

“is an interpretive guideline, issued on the advice of the Solicitor of Labor…, not an official regulation promulgated after notice-and-comment rule making.” Then, consistent with Supreme Court precedent, the court held that such guidelines “do not rise to the level of a regulation and do not have the effect of law” but instead have only the power to persuade to the extent they are actually consistent with the pertinent statute and otherwise satisfy the Skidmore analysis. Id. at 185-87.

Applying this proper analysis, it is clear that Plaintiff’s urged application of

§ 778.215(a)(3) is not a persuasive interpretation of the statutory exclusion set forth at 29 U.S.C § 207(e)(4). To start, the provision runs contrary to Congress’s intent as reflected in the statutory language. Furthermore, the guidance in §

778.215(a)(3) was not issued contemporaneously with § 207(e)(4). And finally, all of the pertinent Skidmore factors counsel against deference here: The guidance is not thoroughly reasoned, the Wage and Hour Division did not offer any reason—much less a valid reason—to justify its effort to expand the statutory requirements, and it conflicts with earlier pronouncements.

In fact, applying the statutory exclusion set forth in § 207(e)(4) here would serve, not hinder, the interests of the FLSA. GEICO’s PSP furthers the goals

Congress sought to achieve by balancing the general rule requiring the inclusion of hourly and related compensation in the regular rate while at the same time

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excluding certain benefits. The exclusion for contributions to benefit plans was meant to incentivize employers to provide such benefits to employees. Such benefits are urgently needed, especially in the face of insufficient retirement savings levels, and GEICO should not be punished with an unexpected overtime liability for providing such benefits to its employees.

ARGUMENT

I. GEICO Has Demonstrated That Its Cash Payments Are Properly Excluded From The Regular Rate Of Pay. Although the Chamber will respectfully focus this brief on Plaintiff’s claim concerning the retirement trust contributions, the Chamber submits that the District

Court correctly held that Plaintiff’s cash payment claim fails because the cash payments under GEICO’s PSP are percentage bonuses that already factor all overtime into the regular rate of pay. (Indeed, as set forth below, this principle informs the discussion of the retirement trust contributions because they are properly excluded from the regular rate calculation for this same reason, regardless of § 778.215(a)(3).)

As GEICO has explained, Plaintiff has admitted that the cash payments constitute a percentage of total earnings. ER 49 (Complaint); OB 4; Answering

Brief (“AB”) 21. The applicable overtime attributable to the bonus has therefore already been paid as a mathematical fact, since the cash payments increase straight

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time earnings and overtime earnings by the same percentage. As a result, paying an additional premium would impermissibly result in “overtime on overtime.”

Avoiding “overtime on overtime” was a key consideration driving the 1949 amendments to the FLSA that defined the regular rate of pay and the associated exclusions. In Bay Ridge Operating Co. v. Aaron (Bay Ridge), 334 U.S. 446, 473-

77 (1948), the Supreme Court had required premiums for weekend or holiday work and extra payments for work outside “clock” hours provided under collective bargaining agreement to be included in the regular rate of pay, resulting in

“overtime on overtime” and disrupting traditional pay practices in the stevedoring and longshore industry. In the 1949 amendments to the FLSA, Congress abrogated this “overtime-on-overtime” decision. See The New Wage and Hour Law (1949), at 6-9 (describing Congress’s desire to override Bay Ridge).

The longevity requirement set forth in the PSP does not alter this conclusion.

As GEICO has made clear, an employer may make payment of a percentage bonus contingent on remaining employed through the date of payment. See Brock v. Two

R Drilling Co., 789 F.2d 1177, 1180 (5th Cir. 1986) (“A conditional bonus ʽbased on a percentage of total wages,’ no less than an unconditional one, ʽincreases both straight time and overtime wages by the same percentage.’”); AB 21-22. The language requiring that such bonuses be “paid unconditionally,” 29 C.F.R. §

778.503, simply serves to distinguish true percentage bonuses from pseudo

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percentage bonuses where the amount to be paid varies with the amount of overtime worked so as to evade the employer’s overtime obligation. See id.

(explaining that sham “pseudo percentage” bonuses, while “expressed as a percentage of both straight time and overtime wages . . . are generally separated out of a fixed weekly wage and usually decrease in amount in direct proportion to increases in the number of hours worked in a week in excess of 40”). No such sham arrangement is present here.

GEICO has also demonstrated that Plaintiff’s attack on the “allocation” of the bonus is without merit. See OB 10, 16-18 (contending that cash payments under the PSP must be allocated over a period of 14 rather than 12 months). The

District Court correctly held that the cash payments constitute a percentage bonus that requires no allocation because they already account for the overtime worked.

AB 13, 32-35; ER 11-14 (Order).

Indeed, even if the cash payments at issue here did not qualify as a percentage bonus—which they do—there is nothing about providing for payment of an annual bonus early the following year that suggests a subterfuge or other attempt to evade overtime obligations. Such an approach is common and in no way requires an employer to allocate an annual bonus for regular rate purposes over anything other than the calendar year. See 29 C.F.R. § 778.209 (where bonus earnings cannot be attributed to a particular workweek, “it may be reasonable and

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equitable to assume that the employee earned an equal amount of bonus each week of the period to which the bonus relates”) (emphasis added). To suggest otherwise would disrupt the settled expectations of countless employers who have implemented annual bonus programs that provide for payment early the following year.

II. GEICO Has Demonstrated That Plaintiff’s Trust Contribution Claims Fail Regardless of Whether 29 C.F.R. § 778.215(a)(3) Is Persuasive. Although the Chamber focuses this submission on the invalidity of the interpretive guidance set forth in § 778.215(a)(3), the Chamber respectfully submits that the Court need not reach this issue because GEICO has established three independently sufficient grounds on which Plaintiff’s trust contribution claims fail regardless of the validity of § 778.215(a)(3).

First, as Plaintiff concedes, the trust contributions under the PSP are calculated as a percentage of total earnings. As a result, any payment already reflects a premium for overtime hours as a matter of simple arithmetic. OB 3-4;

AB 32-40. As GEICO has already explained, if the payment is a percentage a total of wages, then the payment will increase as overtime is worked and overtime premiums are paid. See Brock, 789 F.2d at 1179 (no “recomputation of the

‘regular’ rate of pay” is required “because the bonus is deemed to increase the straight time pay and the overtime pay by the same percentage, thus not altering the ratio between them”) (citing Siomkin v. Fairchild Camera & Instrument Corp.,

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174 F.2d 289 (2nd Cir. 1949) (Judge Learned Hand). Put simply, the payment already includes a regular rate adjustment, and so there is no need to assess whether a statutory exclusion applies.

Second, as GEICO also correctly explains, even if the trust contributions were not paid a percentage of wages, Plaintiff’s own argument brings them under the exclusion set forth at 29 U.S.C. § 207(e)(3). Specifically, Plaintiff argues that the trust contributions run afoul of the guidance set forth in § 778.215(a)(3) because the initial decision to fund the pool is discretionary. In particular, she contends that GEICO employees do not have any expectation of any particular PSP trust contribution, or indeed any such contribution at all, since “GEICO can deem it to be zero if it wants to.” OB 31. Stressing that under the PSP, the Board could decide to make no contribution at all, Plaintiff argues that both “the fact of a contribution, and its initial amount” are decided “on a whim.” OB 33. And 29

U.S.C. § 207(e)(3) expressly excludes from the regular rate of pay “[s]ums paid in recognition of services performed during a given period if . . . both the fact that payment is to be made and the amount of the payment are determined at the sole discretion of the employer at or near the end of the period” and not pursuant to any prior promise. This exclusion therefore applies.

Third, even if this Court ignores both the percentage and discretionary nature of the payments conceded by Plaintiff and applies § 778.215, GEICO has

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established that the PSP satisfies this guidance. AB 33-36. Although she does not contest that most elements of § 778.215 are met, Plaintiff does contend that

GEICO cannot satisfy § 778.215(a)(3) because the overall employer contribution is not determined formulaically. OB 29-32. But once the bonus pool is funded by the Board, the amount of each company’s contribution to the Planning Centers under the PSP is in fact determined by a specific formula. See ER 101 (PSP § 5.2, providing for allocation “to the Planning Centers within such Company based on the ratio of (i) each Planning Center's Planning Center Ranking multiplied by the total Earnings of Eligible Participants in such Planning Center to (ii) the sum of the products of each Planning Center's Planning Center Ranking and the total Earnings of all Eligible Participants in such Planning Center.”). Furthermore, as Plaintiff concedes, each employee’s individual share of the company contribution under the

PSP is also determined by a specific formula. See id. Accordingly, the District

Court correctly concluded that the trust contributions under the PSP comply with the guidance set forth in § 778.215.

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III. Even If This Court Rejects The Above Contentions, The Trust Contributions Are Still Properly Excluded From The Regular Rate, Because GEICO Has Satisfied The Statutory Exclusion For Retirement Contributions, And Plaintiff’s Urged Application Of The Guidance Is Invalid. For the three independently sufficient reasons set forth above, there is no need for this Court to reach the validity of the guidance set forth in 29 C.F.R. §

778.215(a)(3).

Section 207(e)(4) excludes from the regular rate of pay all “contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for providing old-age, retirement, life, accident, or health insurance or similar benefits for employees.” Nothing in the statute requires that these contributions be made formulaically—instead, the statute’s only requirement as to the manner in which such contributions be made is that they be made irrevocably.

Plaintiff cannot and now does not dispute that the contributions here were made irrevocably, and the guidance on which she relies in attempting to graft a new requirement onto the statute is unpersuasive as a matter of law.

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A. The Statutory Exclusion Must Be Interpreted Fairly, Not Narrowly Construed. Plaintiff incorrectly contends that the regular rate exclusions are to be

“interpret[ed] “narrowly” and that the statutory exclusion for retirement contributions must be “construed narrowly against GEICO.” OB 32-33 (emphasis omitted). As GEICO states, AB 40-41, the Supreme Court has squarely rejected the notion that FLSA exemptions must be narrowly construed against the employer and held instead that the analysis must be based on a “fair” reading of the statute.

“Because the FLSA gives no ‘textual indication’ that its exemptions should be construed narrowly, ‘there is no reason to give [them] anything other than a fair

(rather than a “narrow”) interpretation.’” Encino Motorcars II, 138 S. Ct. at 1142

(quoting Scalia, Reading Law, at 363). In Encino Motorcars, LLC v. Navarro, 136

S. Ct. 2117 (2016), Justices Thomas and Alito foreshadowed the Court’s eventual holding and stated, “[t]here is no basis to infer that Congress means anything beyond what a statute plainly says simply because the legislation in question could be classified as ‘remedial.’” Id. at 2131 (Thomas, J., dissenting).2

2 In reaching this conclusion, these Justices recognized that the Ninth Circuit has in the past suggested that the narrow construction rule is proper, and they made clear that this is no longer the case: “Respondents also resist this natural reading of the exemption by invoking the made-up canon that courts must narrowly construe the FLSA exemptions. [Citation omitted]. The Ninth Circuit agreed with respondents on this score. 780 F.3d 1267, 1271–1272, n. 3 (2015). The court should not do so again on remand. We have declined to apply that canon on two recent occasions.” 136 S. Ct. at 2131 (Thomas, J., dissenting).

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The circuit courts have followed this holding. See Mosquera v. MTI

Retreading Co., No. 17-2366, 2018 WL 3860514, at *2 (6th Cir. Aug. 14, 2018)

(“In construing [the FLSA] exemptions, we give them a ‘fair (rather than a

“narrow”) interpretation.’”); Carley v. Crest Pumping Technologies, L.L.C., 890

F.3d 575, 579 (5th Cir. 2018) (“The Supreme Court recently clarified that courts are to give FLSA exemptions ‘a fair reading,’ as opposed to the narrow interpretation previously espoused by this and other circuits.”).

The Supreme Court’s command applies equally to the regular rate exclusions. Just as the overtime exemptions “are as much a part of the FLSA’s purpose as the overtime-pay requirement,” Encino Motorcars II, 138 S. Ct. at

1142, the exclusions are as much as part of the FLSA’s purpose as the regular rate provision. Indeed, the overtime/exemption and regular rate/exclusion provisions of the FLSA mirror each other in that they each set forth a general rule followed by enumerated exceptions to that general rule. The overtime provision of the FLSA, set forth at Section 7(a)(1), provides as follows:

Except as otherwise provided in this section, no employer shall employ any of his employees . . . for a workweek longer than forty hours unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.

29 U.S.C. § 207(a)(1) (emphasis added). And Section 13, which sets forth the overtime exemptions at issue in Encino Motorcars II, provides that “[t]he

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provisions of section[ . . . ] 207 of this title shall not apply with respect to” the enumerated exemptions. 29 U.S.C. § 213 (emphasis added).

Similarly, the regular rate of pay is defined at 29 U.S.C. § 207(e): “As used in this section the ‘regular rate’ at which an employee is employed shall be deemed to include all remuneration for employment paid to, or on behalf of, the employee .

. . .” The provision then goes on to enumerate the exceptions to this general rule:

“[B]ut [the regular rate] shall not be deemed to include” any of the items set forth in subsections (1)-(8). Id. (emphasis added). Just like the overtime provision and the exemptions thereto, the statutory language defining what is and is not part of the regular rate creates two categories: what is included (the general rule) and what is not (the exclusions). As the Supreme Court held, these provisions contain no

“textual indication” that the overtime exemptions should be construed narrowly, and therefore a fair reading—a reading that favors neither the employer nor the employee—is appropriate.

Although Plaintiff might respond that the regular rate exclusions operate against the background of a general rule including “all remuneration” in the regular rate, and that this provides the requisite “textual basis” to infer that a narrow construction of the exclusions is appropriate, the Supreme Court’s analysis in

Encino Motorcars II forecloses such an argument. The default proposition under the FLSA is that overtime pay is required for all covered employees, and it is only

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if one of the enumerated exemptions applies that premium overtime compensation is not required. In other words, the exemptions operate against a background of a general rule requiring overtime pay. Yet the Supreme Court gave no credit to that fact in concluding that there was no textual basis to infer that narrow construction of the overtime exemptions was appropriate. Encino Motorcars II, 138 S. Ct. at

1142. Similarly, no such inference can be made as to the regular rate exclusions.

Since there is no other textual basis from which to glean that narrow construction is appropriate, a fair reading of the exclusions, that favors neither employer nor employee, is required.

Fundamentally, “[t]he narrow-construction principle relies on the flawed premise that the FLSA pursues its remedial purpose at all costs.” Encino

Motorcars II, 138 S. Ct. at 1142 (internal quotation marks omitted). The Supreme

Court has expressly cautioned against such an approach, noting that “[i]t is quite mistaken to assume ... that whatever might appear to further the statute’s primary objective must be the law,” because “[l]egislation is, after all, the art of compromise, the limitations expressed in statutory terms often the price of passage.” Id. (quoting Henson v. Santander Consumer USA Inc., 137 S. Ct. 1718,

1725 (2017)). Such compromises are evident in the legislative history of the 1949 amendments to the FLSA that, among other things, defined the regular rate of pay and enacted the exclusion that is now set forth in Section 7(e)(4).

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At the time debate on the amendments began, the FLSA was less than ten years old, and several court decisions interpreting the original statute had led to unexpected outcomes. See Congressional Reversal of Supreme Court Decisions:

1945-1957, 71 Harv. L. Rev. 1324, 1327-30 (citing cases Congress sought to overrule or modify with the 1949 FLSA amendments, including Bay Ridge, 334

U.S. at 464-65 (“overtime on overtime” case), Martino v. Michigan Window

Cleaning Co., 327 U.S. 173, 176-77 (1946) (broadly construing FLSA coverage),

Roland Elec. Co. v. Walling, 326 U.S. 657, 667 (1946) (narrowly construing “retail or service” exemption), and Farmers Reservoir & Irrigation Co. v. McComb, 337

U.S. 755, 759-60 (1949) (narrowly construing agricultural exemption)). Industry sought to undo some of these rulings and to make compliance with the law easier; meanwhile, labor sought a substantial increase in the minimum wage. See Fair

Labor Standards Act Amendments: Hearings on S. 49, etc., Before the Labor

Subcomm. of the Committee on Labor and Public Welfare, 80th Cong. 198 (1948)

(setting forth testimony of and statements from numerous representatives of labor and industry); The New Wage and Hour Law, supra, at 5-10 (summarizing these groups’ respective positions and describing the various phases of the legislative process).

Labor ultimately achieved its minimum wage increase, but at the price of several concessions to industry in terms of FLSA coverage, overtime exemptions,

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and regular rate exclusions.3 The New Wage and Hour Law, supra, at 6 (“To obtain the necessary votes for the higher minimum wage, [labor interests] had to make numerous concessions on coverage”); id. at 9 (“So evenly matched were the opposing groups that, at one point, the Administration appeared ready to abandon all proposals except that for an increase in the minimum wage. Eventually, it was able to salvage some of its other aims by making concessions on coverage and exemption changes to the coalition.”). In other words, the 1949 amendments reflect compromise legislation and not the intention (let alone the actual textual proposition) that either side’s benefit of the compromise should be any less valued.

It follows that the resulting statutory language should be interpreted fairly, not with a presumption for or against either the employer or the employee.

B. GEICO’s Plan Satisfies The Requirements Of The FLSA. The statutory exclusion for benefit plan contributions set forth in Section

7(e)(4) excludes from the regular rate of pay “contributions irrevocably made by an employer to a trustee or third person pursuant to a bona fide plan for providing old-age, retirement, life, accident, or health insurance or similar benefits for employees.”

3 In making this observation, the Chamber does not mean to suggest that the regular rate exclusions at issue here for percentage bonuses and benefit plan contributions were opposed by labor. The point is a more general one about statutory construction.

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GEICO’s plan meets all of these requirements. The contributions are (1) irrevocably made, ER 113-14 (PSP § 10.4); (2) by an employer, id. 82, 101 (PSP

§§ 1.6, 5.1); (3) to a trustee, id. 82, 85, 101 (PSP §§ 1.7, 1.30, 5.1(a)); (4) pursuant to a bona fide retirement plan, id. 105-08 (PSP art. VI).

Plaintiff’s argument focuses on the manner in which the contributions are made. Relying exclusively on the guidance set forth in § 778.215(a)(3), Plaintiff contends that all of the various contributions at issue must made formulaically.

But the only provision in the statute that speaks to the manner in which the contributions are made is the requirement that such contributions must be made irrevocably. 29 U.S.C. § 207(e)(4). The PSP itself makes clear—and Plaintiff does not dispute on appeal4—that the trust contributions under the PSP are made irrevocably.

C. Section 778.215(a)(3)’s Extra-Statutory Requirement Is Not Entitled To Deference. Section 778.215(a)(3) is not entitled to any deference whatsoever because it runs contrary to the plain text of Section 7(e)(4) of the FLSA. See, e.g., Cleary ex rel. Cleary v. Waldman, 167 F.3d 801, 808 (3d Cir. 1999) (to be persuasive, an

4 Plaintiff had contended below that the contributions were not irrevocable because they could be forfeited for early departure, SER 4, but she has abandoned that argument on appeal, likely because it is plainly incorrect. See ER 113-14 (PSP § 10.4, providing that forfeited amounts are to be used first for administrative expenses and any excess redistributed to participants).

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agency interpretation cannot run contrary to Congress’s intent as reflected in a statute’s plain language and purpose). Much of § 778.215 is tethered to the statute, including subsection (a)(1) (requiring that contributions be made pursuant to a plan), (a)(2) (requiring the plan to provide for retirement or similar benefits), and

(a)(4) (requiring that contributions be made irrevocably to a trustee). Subsection

(a)(3), however—a detailed provision with several very specific requirements—has no basis at all in the statute. Indeed, it appears to have been fashioned from whole cloth, not appearing in any form in administrative guidance known to Congress at the time the 1949 amendments were passed.

But even if the guidance were consistent with the FLSA, it is not entitled to any deference. Where, as here, a regulation does not purport to have the force of law, it is entitled only “to a measure of deference proportional to its power to persuade, in accordance with the principles set forth in Skidmore v. Swift & Co.,

323 U.S. 134 . . . (1944),’” and not to any greater form of deference, Bamonte v.

City of Mesa, 598 F.3d 1217, 1228 (9th Cir. 2010). Any greater deference to mere agency guidance would unduly “validate the results of an informal process.”

Madison, 233 F.3d at 186.

Section 778.215(a)(3) is just such an informal agency interpretation. Section

778.1 explains that Part 778 of the Code of Federal Regulations “constitutes the official interpretation of the Department of Labor with respect to the meaning and

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application of the maximum hours and overtime pay requirements contained in section 7 of the Act,” which will “guide the Secretary of Labor and the

Administrator . . . unless and until they are otherwise directed by authoritative decisions of the courts or conclude, upon reexamination of an interpretation, that it is incorrect.” 29 C.F.R. § 778.1. In Madison, 233 F.3d at 185-87, the Third

Circuit Court of Appeals addressed the history of § 778.215 and held that there was

“no doubt” that it “is an interpretive guideline, issued on the advice of the Solicitor of Labor…, not an official regulation promulgated after notice-and-comment rule making.” Following Supreme Court precedent, the court held that such guidance statements “ʽdo not rise to the level of a regulation and do not have the effect of law’” but instead have only the power to persuade to the extent they are actually consistent with the pertinent statute and otherwise satisfy the Skidmore analysis. Id. at 185-87.

As this Court has also recognized, interpretive guidance of this kind is

“entitled to respect” under Skidmore only to the extent that it has the “power to persuade.” Flores v. City of San Gabriel, 824 F.3d 890, 903 (9th Cir. 2016), abrogated on other grounds by Encino Motorcars II, 138 S. Ct. 1142; Tablada v.

Thomas, 533 F.3d 800, 806 (9th Cir. 2008).

In applying the Skidmore test, the Supreme Court has noted that agency interpretations issued contemporaneously with a statute are entitled to greater

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deference. See, e.g., Public Citizen v. U. S. Department of Justice, 491 U.S. 440,

463 n.12 (1989) (one reason deference was not due an agency interpretation was the passage of time between enactment of the statute and promulgation of the regulation in question). The persuasiveness of an agency’s interpretation also is derived in part from the “thoroughness evident in its consideration, the validity of its reasoning, [and] its consistency with earlier and later pronouncements.”

Skidmore, 323 U.S. at 140.

Beyond the fact that it contravenes the plain language of the statute, §

778.215(a)(3) is not persuasive and therefore does not warrant deference here because (1) it was not a contemporaneous interpretation; and (2) all of the

Skidmore factors indicate that deference is not warranted: the guidance is not thoroughly reasoned, the Wage and Hour Division has never offered any reason— much less a valid one—to justify this additional restriction on the exclusion for benefit plan contributions, and it is inconsistent with earlier pronouncements.

1. Section 778.215(a)(3) Was Not A Contemporaneous Interpretation. Section 778.215(a)(3) does not enjoy the greater deference afforded contemporaneous interpretations because it was not part of the original guidance interpreting section 7(e)(4) of the FLSA. In the original, contemporaneous guidance issued in 1950, there was nothing to suggest that employer contributions

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must be determined formulaically. See 29 C.F.R. § 778.6(g) (1950).5 Indeed, the only discussion of the manner in which contributions must be made echoes the statute: The contributions must be irrevocably made. Id. § 778.6(g)(3). As explained below, it was only later that the guidance was amended to depart from the text of the FLSA.

2. Section 778.215(a)(3) Was Not Thoroughly Considered, Was Offered Without Any Reasoning, Much Less Valid Reasoning, And Was Inconsistent With Earlier Pronouncements. Not only was the language in § 778.215(a)(3) entirely absent from the contemporaneous guidance interpreting Section 7(e)(4), but nothing in the history of § 778.215 shows that there was thorough consideration informing the interpretive guidance generally, and certainly not as to subsection (a)(3) in particular. When the original guidance was issued, no further explanation was provided beyond the text reprinted in the Addendum submitted herewith. See 15

Fed. Reg. 623, 629 (Feb. 4, 1950). While that guidance stated the position of the

Wage and Hour Administrator, it did not explain the reasons for that position or how it was consistent with the newly enacted regular rate definition and exclusions. Notably, however, the four provisions of the original guidance either tracked the statutory language (i.e., subsections (1)-(3)) or restated interpretive

5 The full text of the original guidance is reprinted in the Addendum submitted with this brief.

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guidance that had predated the 1949 amendments that enacted the regular rate definition and associated exclusions.6

Years later, when the Wage and Hour Division added subsection (a)(3) to its interpretive guidance, it offered no reasoning whatsoever—much less valid reasoning—to justify adding a requirement that does not appear in the statute and then, yet later, applying that requirement to contributions made to IRS-qualified plans. Indeed, the guidance as it stands today is inconsistent with not just the original, but several subsequent versions of the guidance. Under these circumstances, Skidmore deference is not appropriate.

(a) The Original Guidance Was Changed Without Explanation To Require Formulaic Contributions, But Not For IRS-Qualified Plans. When the language that now appears at § 778.215(a)(3) was first added as a new subsection (iii) to the original interpretive guidance set forth in § 778.6(g),

6 The guidance incorporated as subsection (4) reflects the Administrator’s view, articulated prior to passage of the 1949 amendments, that a plan was “bona fide” and thus the employer’s contributions excludable only if the plan met two requirements: (1) the employee must not have the option to receive instead of benefits any part of the contributions of the employer; and (2) the employee must not have the right to assign the benefits or to receive a cash consideration in lieu of the benefits either on termination of the plan or his withdrawal from it voluntarily or through severance of employment with the particular employer. See The New Wage and Hour Law, supra, comment to § 7(d)(4) of 1949 Amendments, at Appendix-5; U.S. Dep’t of Labor, Labor Information Bulletin, vol. 14, no. 10 (October 1947).

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with the other subsections being renumbered accordingly, the change was made with no explanation whatsoever. See 18 Fed. Reg. 3293-94 (June 10, 1953). At the same time, a savings clause was added which provided that a plan that met the requirements for a qualified trust under the pertinent tax law would also be deemed meet the requirements for exclusion from the regular rate of pay. See id. at 3294

(“Where the benefit plan or trust has been approved by the Bureau of Internal

Revenue as satisfying the requirements of section 165(a) of the Internal Revenue

Code [(IRC)], in the absence of evidence to the contrary, the plan or trust will be considered to meet the conditions specified in subparagraphs (3) (i) (iii) (iv) and

(v) of this paragraph.”).7 A similar savings clause appeared in subsequent revisions to § 778.6(g). See 21 Fed. Reg. 4956 (June 27, 1956) (replacing the reference to § 165(a) of the IRC with a reference to § 401(a)).8

7 The only remaining requirement under the guidance, subsection (ii), had to do with the “primary purpose” of the plan, i.e., that it be a retirement or other welfare plan. See 15 Fed. Reg. 623, 629 (Feb. 4, 1950). 8 GEICO contended below that it had obtained a determination from the IRS that the PSP was a Qualified Plan under IRC Section 401, ER 33, but the District Court declined to take judicial notice of the IRS determination to that effect, noting that it did not need to rely on it in reaching its conclusion that the trust contributions satisfied the requirements of § 778.215. ER 17.

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(b) The Guidance Was Changed Again Later—Again Without Explanation—To Require Formulaic Contributions Regardless of Compliance With Tax Rules. The guidance was later changed to delete Section 778.6(g)(iii) from the savings clause—in 1958, nearly ten years after the statute was enacted—again with no explanation whatsoever. 23 Fed. Reg. 3301 (May 9, 1958). This was significant: Prior to 1958, if a welfare plan qualified under pertinent tax rules, no formulaic contribution was required by the interpretive guidance, either before or after passage of the 1949 amendments. But in 1958, the guidance changed course to state that any plan (even an IRS-qualified plan) that did not provide for formulaic contributions no longer qualified for the exclusion. Yet even then, no explanation was given as to why that change was appropriate or how it was consistent with the statutory language, which provides only that such contributions must be irrevocably made. The complete absence of any reasoning—much less valid reasoning—for adding the language of subsection (a)(3) in the first place, and then for deleting it from coverage by the savings clause, confirms that

§ 778.215(a)(3) does not warrant Skidmore deference.

D. Finding That The Exclusion Applies Here Would Not Undermine The Purpose Of The Law And Indeed Would Support It. The purpose of the regular rate rule is to prevent employers from avoiding the obligation to pay premium overtime by using alternative methods of rewarding

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hours worked that do not get factored into the overtime premium. Congress’s intent was not to discourage employers from providing benefits to employees, and in fact, the exclusions were enacted to incentivize employers to do just that.9

The law itself recognizes that not all payments to employees are designed to compensate them for hours worked; the sheer number of regular rate exclusions reflects that reality. The trust contributions under GEICO’s PSP are consistent with the intent expressed by this framework in that they are awarded across the board to all participants based on a percentage of wages, and benefits are paid out to employees at times when they are not performing work (e.g., retirement, disability).10

9 Fair Labor Standards Act Amendments: Hearings on S. 49, etc., Before the Labor Subcomm. of the Committee on Labor and Public Welfare, 80th Cong. 198 (1948) (statement of Archibald Cox, counsel to the Senate Committee on Labor and Public Welfare: “a number of court decisions [under the 1938 FLSA] make it impracticable, if not impossible, to comply with the law and at the same time set up profit-sharing plans or certain kinds of pension trusts. [Citations omitted.] The obstacle should be removed.”). 10 A number of senators made exactly this observation about Section 7(e)(4) during the debate on the 1949 amendments. See Statement of Majority of Senate Conferees, submitted to the Senate by Sen. Pepper (Oct. 19, 1949), reprinted in The New Wage and Hour Law, supra, at Appendices-93 (“This exclusion recognizes that the benefits received by employees as a result of the employer’s contributions under such plans are generally received at periods when no work is being performed for the employer, rather than as compensation for hours worked.”).

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Fundamentally, there is no indication that the PSP is being used as a subterfuge to avoid the payment of premium overtime compensation. If employers were required to follow regular rate procedures simply because they wished to have discretion in the initial funding of plans like the PSP, they would be disincentivized from providing such benefits at all. Particularly in an economic environment where retirement savings rates are generally much lower than they need to be to provide adequate income during retirement,11 this would be a bad outcome for employees as well as employers.

GEICO has done well by its employees here. GEICO has sought to provide its employees with an extra measure of financial security when they will need it most—after they are no longer working for the company. Congress has adopted exclusions to prevent a situation in which an employer, such as GEICO is punished for its good deed. Those exclusions apply here, and Plaintiff’s claims should fail.

11 See, e.g., Adi Libson, Confronting the Retirement Savings Problem: Redesigning the Saver’s Credit, 54 Harv. J. on Leg. 207, 212 (“there is ample evidence that individual do not save sufficient resources for retirement”).

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CONCLUSION The District Court correctly concluded that Plaintiff’s regular rate claims concerning cash payments and trust contributions under GEICO’s PSP fail as a matter of law. This Court should affirm.

DATED: October 31, 2018 MUNGER, TOLLES & OLSON LLP

By: /s/ Katherine M. Forster KATHERINE M. FORSTER Attorneys for Amicus Curiae Chamber of Commerce of the United States of America

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CERTIFICATE OF COMPLIANCE PURSUANT TO

DATED: October 31, 2018 MUNGER, TOLLES & OLSON LLP

By: /s/ Katherine M. Forster KATHERINE M. FORSTER Attorneys for Amicus Curiae Chamber of Commerce of the United States of America

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CASE NO. 18-55682

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MARISHA RUSSELL, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED,

Plaintiff and Appellant,

GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant and Appellee.

Appeal From The United States District Court, Southern District of California, Case No. 3:17-cv-00672-JLS-WVG, Hon. Janis L. Sammartino, Presiding

AMICUS CURIAE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA’S ADDENDUM OF PERTINENT AUTHORITY

Attorneys for Amicus Curiae Chamber of Commerce of the United States of America

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TABLE OF CONTENTS

FEDERAL REGULATIONS AND FEDERAL REGISTER 29 C.F.R. § 788.6(g) (1950)………………………………………………………40 15 Fed. Reg. 623 (Feb. 4, 1950)…………………………………………………..42 18 Fed. Reg. 3293 (June 10, 1953)……………………………………..…………62 21 Fed. Reg. 4949 (July 4, 1956)…………………………………………………72 23 Fed. Reg. 3301 (May 15, 1958)…………………………………..………..…119

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Welfare plans. Section 7(d)(4)1 provides that the term “regular rate” shall not be deemed to include: Contributions irrevocably made by an employer to a trustee or third person pursuant to a bona-fide plan for providing old-age, retirement, life, accident, or health insurance or similar benefits for employees * * * Such sums may not, however, be credited toward overtime compensation due under the act. In order for an employer’s contribution to qualify for exclusion from the regular rate under this section the following conditions must be met: (1) There must be a formal plan or system set up by the employer. This may be either a company-financed plan or an employer-employee contributory plan. (2) The primary purpose of the plan must be that of providing systematically for the payment of definitely determinable benefits to employees on account of death, disability or retirement or to provide medical care, hospitalization benefits, and the like. (This type of plan will be referred to as a welfare plan.) (3) The employer’s contributions must be paid irrevocably to a third party according to a trust or other funded arrangement (such as an insurance plan). The trust or fund must be set up in such a way that in no event will the employer be able to recapture any of the contributions paid in nor in any way divert the funds to his own use. Where the payments are made to a single trustee, the trustee must be an individual other than the employer or an officer, affiliate or representative of the employer. If the payments are made to a group of trustees, the majority must not be officers, affiliates, or representatives of the employer. (4) No employee has the right to assign his benefits under the plan nor the option to receive any part of the employer’s contributions in cash instead of the benefits under the plan. Provided, however, that if a plan otherwise qualifies as a bona fide welfare plan under this subsection, it will still be regarded as a bona fide plan even though it provides, as an incidental part thereof, for the payment to an employee in cash of all or a part of the amount standing to his credit at the time of the severance of the employment relation due to causes other than retirement, disability or death, and even though, upon proper

1 7(d)(4) was later recodified at 7(e)(4).

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termination of the plan, the amounts standing to the credit of participating employees are distributed to them at the time of termination. The Administrator’s position on the question of when an employer’s contributions to a welfare plan may be excluded from the regular rate under this subsection is similar to that of the Bureau of Internal Revenue in determining what constitutes “wages” for social security tax purposes. If the payments in question are excluded from the category of wages under section 1420(a)(2) of the Federal Insurance Contributions Act and section 1607(b)(2) of the Federal Unemployment Tax Act, they would not be regarded by the Administrator as part of the regular rate of pay under section 7(d) of the Fair Labor Standards Act, as amended. It should be emphasized that it is the employer’s contribution to the fund or trust that is excluded from or included in the regular rate according to whether or not the plan meets the foregoing requirements. If the plan does not qualify as a bona fide welfare plan under section 7(d)(4) the contribution is treated the same as any bonus payment which is part of the regular rate of pay, and at the time the contribution is made the amount thereof must be apportioned back over the workweeks of the period during which it may be said to have accrued. Overtime compensation based upon the resultant increases in hourly rate is due for each overtime hour worked during any workweek of the period. The subsequent distribution of accrued funds to an employee on account of severance of employment (or for any other reason) would not result in any increase in his regular rate in the week in which the distribution is made.

29 C.F.R. § 778.6(g) (1950).

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Saturday, February 4, 1950 FEDERAL REGISTER 623

Heaters. Checked and set in safe operation Sec. courts and to the legislative history of position. 778.0 Bonuses. Instruments: 778.7 Payments not for hours Worked. the act, as amended. Interpretations of Engine—oil temperature and pressure, 778.8 Talent fees In the radio and tele- the Administre tor of the Wage and Hour checked. Vision industry. Division with respect to overtime com- Engine—fuet supply and pressure checked. pensation are set forth herein to provide Carburetor—temperature checked. SPECIAL PROBLEMS "a practical guide to employers and em- Cylinder bead—temperature checked. 778.9 Reduction in workweek schedule ployees as to how the office representing Flight instruments. Checked and reset if with no change in pay. the public interest in the enforcement of necessary. 778.10 Change in the beginning of the the law will seek to apply it." There Pressurization. Checked. workweek. 778,11 Retroactive pay Increases. Interpretations, with respect to the max- § 61.304-1 Pilot compartment (CAA 778.12 Row daIuctions affect the regular imum hours and overtime provisions of interpretations which apply to rate. the act, indicate the construction of the § 6X.304)—Sections 4a.509 and 4b.421 (d) 778.13 Prizes as bonuses. law which the Administrator believes to of the Civil Air Regulations provide that 778,14 Lump sum attributed to overtime. be correct and which will guide him In a door or an adequate openable window 778,15 "Task" basis of payment. the performance of his administrative shall be provided between the pilot corn- 778,16 Effect of failure to count or pay for duties under the act unless and until he pertinent and the passenger tempest- certain working hours. is otherwise directed by authoritative 778.17 Effect of paying for but not counting decisions of the courts or concludes, upon ment. The "pilot compartment", as certain hours, used In § 61.304 of the Civil Air Regu- reexamination of an interpretation, that lations, will be regarded by the Admin- EXCEPT/CMS FROM THE REGOLAR RATE PRINCIPLES it is incorrect. istrator as all of that area forward of 778.18 OUaranteed compensation which in- Under the Portal-to-Portal Act of such door or window. • • cludes overtime pay (nee. 7 (e) ). 1947,' interpretations of the Adminis- 778.19 Computing overtime pay on the rate (Sec. 205, 52 Stat. OK as amencled ,hy Reorg. trator may, under certain circumstances, applicable to the type of work per- be controlling in determining the Tights Plan IV or 1940, 5 F. R. an, 3 CFR, Cum, formed in cneztirae hours (sec. 7 Supp.; 49 U. S. C. 425. Interpret or apply and liabilities of employers and em- (1) (1) and (2) ). ployees. The interpretations contained seas. 801, 804, 805. 52 Stat. 1007. 1010, as 778.20 Computing overtime pay on an "es- amended by Eteorg. Plans III and W of 1940, tablished" rate (sea. 7 (1) (3)). in this bulletin are interpretations on 5 F. R. 2107, 2421, 3 CFR, Cum. Stipp.; 49 which reliance may be placed as U. S. C. 551, 554, 555) PAY PLANS WHICH cnictruiVENT THE ACT provided in section 10 of the Portal-to- These policies and interpretations 778.21 Artificial regular rates. portal Act, so long as they remain effec- 778.22 The "split-day" plan. tive and are not modified, amended, shall become effective upon publication 778.23 Pseudo-bonuses, in the FEDERAL REGISTER. rescinded, or determined by judicial au- istiseemArtzons thority to be incorrect. However, the [SEAM DONALD W. NTROP, omission to discuss a particular problem Acting Administrator of 778.24 Veterans' subsistence allowances, 778.25 Special overtime provisions under in this bulletin or in interpretations Civil Aeronautics. section 7 (b). supplementing It should not be taken to IF. Doc, 50-978; Filed, Feb. 8, 1950; indicate the adoption of any position by , 8:49 a, m.1 EITECTIIS4 DATE: RETROACTIVITY the Administrator with respect to such 778.28 Motive date. problem or to constitute an administra- 778.27 Retroactive effect. tive interpretation or practice or enforce- TITLE 26—INTERNAL REVENUE Atrrnearrr: 0 778.0 to 778.27 issued under ment policy. 62 Stat. 1080, ea amended: 29 1J. S. C. and (b) Coverage and exemptions not Chapter I—Bureau of Internal Reve- Sup. 201 et seq. discussed. This bulletin does not deal nue, Department of the Treasury * 778.0 Introductory statement--(a) with the general coverage of the act or Subchapter C---Mleceilaneous Settle Taxes Scope and significance of bulletin. The various specific exemptions provided in IT. D. 5780] Fair Labor Standards Act of 1938. as the statute, under which certain em- amended 1 (hereinafter referred to as the ployees within the general coverage of PART 102—FERMENTED MALT LIQUOR act), requires that no employer shall em- the wage and hours provisions are wholly MISCELLANEOUS AMENDMENTS ploy any of his employees (who is en- or partially excluded from the protection aged in commerce or in the production of the act's minimum-wage and over- Correction g of goods for commerce and who Is not time-pay requirements. Some of these In Federal Register Document 50-841, exempt from the overtime provisions exemptions are self-executing; others published at pa ge 501 of the issue far pursuant to one or more of the specific call for definitions or other action by Tuesday, January 31, 1950, the designa- exemptions provided in the act) for a the Administrator. Regulations and in- tion "§ 192.3" and the reference to § 192.3 workweek longer than 40 hours unless terpretations relating to general cover- as they appear in amendatory paragraph such employee receives compensation for age and specific exemptions may be 4 should read " § 192.1." his employment in excess of 40 hours at found in other parts of this chapter. a rate not less than one and one-half (c) Earlier interpretations superseded. times the regular rate at which he is em- All general and specific interpretations TITLE 29—LABOR ployed. What constitutes proper over- issued prior to August 11, 1959, with re- time compensation must be ascertained spect to the overtime provisions of the Chapter V—Wage and Hour Division, in the light of the definition of "regular act were rescinded and withdrawn by Department of Labor rate" as well as other new provisions § 778.9 of the general statement on this subject, published in the FEDERAL Rea- Subchapter a—Statements of General Policy or relating to overtime set forth in, the act as amended by the Pair Labor Standards urn on that date as Part 778 of this tnterpretation Not Directly Related to kola- chapter to the extent. that they were in- II ons Amendments of 1949' giving due regard to authoritative interpretations by the consistent or in conflict with the prin- PART 778—Om/urn COMPENSATION ciples stated therein' To the extent Sec. tPub. No. 718, 75th Cong., 3d sass. (52 amended and the addition of certain new 778.0 Introductory statement. Stat. 1060), es amended by the act of June 28, provisions. Section 7 of the act was sped/L- 7781 Relation to other taws. 1940 (Pub. Res. No. 38. 78th Cong.. 3d seas,); enny amended as explained herein. The THE OVERTIME PAY REQUIREMENTS by Reorganization Plan No. 2 (80 Stat. 1095), amendments made include the addition of effective July 10, 1048; by the Portal-to-Portal the new subsections 7 (d). *c). (I) and (g). 7782 The 40-hour maximum. Act of 1947, approved May 14, 1947 (01 Stat. • Skidmore v. Swift 61 Co., 329 U. S. 134. 778.3 Computing overtime peg based on 84); and by the Pair Labor Standards • PtIblic Law 49. 80th Cong.. 1st secs. (81 the "regular rate"; definition. Amendments of 1949, approved October 28, Stat. 84), discussed in Part 790 of this 1949 (Public Law 503, 81st Cong., 1st seas., chapter. WttAT PAYMENTS ARE ExCi.lnate nose 7HE "artatn.ria RATE" 83 Stat, 910). 14 P. R. 4896. Certain prior interpreta- Public Law 393, 81st Cong., let seas. (83 tions were superseded earlier as explained In 7'78.4 The statutory provisions. Stat. 910). These amendments, effective statements published In the Pentium REOISTIM 778.6 Extra compensation paid for over- January 25, 1950, leave the existing law un- On August 0, 1948, 14 F. R. 4534. end June 8. time. changed except es to provisions specIficelly 1949. F. R. 3077. No. 24-2

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624 RULES AND REGULATIONS

that interpretations contained in such overtime requirements. Section 7 (a) change is intended to be permanent and general statement or in releases, opinion provides that an employer may not em- is not designed to evade the overtime letters, and other statements issued on ploy any such employee for a workweek requirements of the act.° or after August 11, 1949. are Inconsistent longer than 40 hour's "unless such em- (d) Each workweek stands alone. The with the provisions of the Fair Labor ployee receives compensation for his act takes a single workweek as Its stand- Standards Amendments of 1949, they do employment in excess of the hours above ard and does not permit averaging of not continue in effect after January specified at a rate not less than one and hours over two or more weeks. Thus, if 1950.° Effective on January 25, 1950, this one-half times the regular rate at which an employee works 30 hours one week Interpretative bulletin (31 778.0478,27 of he is employed." The term "regular and 50 hours the next, he must receive this part) replace• and supersedes the rate" is defined in section 7 (d) "to In- overtime compensation for the 10 over- general statement previously published clude all remuneration for employment time hours worked in the second week, as Part 778 of this chapter, which state- paid to, or on behalf of, the employee" even though the average number of ment is withdrawn. Effective on Janu- except payments of seven types which hours worked in the two weeks Is 40, ary 25, 1950. all other administrative ere specifically described and enumer- This is true regardless of whether the rulings, interpretations, practices and ated. These seven types of payments employee works on a standard or swing enforcement policies relating to the will hereafter be referred to as "statu- -shift schedule and regardless of whether overtime provisions of the act and not tory exclusions." 2 he is paid on a daily, weekly, biweekly, withdrawn prior to such date are, to the (b) The nature of statutory overtime monthly or other basis. The rule is also extent that they are inconsistent with or limitation-9. It is clear that there is no applicable to pieceworkers. It is therein conflict with the principles stated in absolute limitation in section 7 of the fore necessary to determine the hours this interpretative bulletin, rescinded Fair Labor Standards Act on the num- worked and the compensation earned by and withdrawn. ber of hours that an employee may work pieceworkers on a weekly basis. Relation to other laws. Vari- In any workweek. If he is paid time and (e) Time of payment. There is, how- 2 7781 a half his regular rate for the overtime ous Federal, State and local laws require ever, no requirement that overtime comment of minimum hourly, daily hours, he may work as many hours a pensation be paid weekly. Overtime the pay week as or weekly wages different from the mini- he and his employer sees fit. compensation earned in a particular mum set forth in the Fair Labor Stand- Section 7 contains no requirement for the workweek must be paid on the regular ards Act, and the payment of overtime payment of overtime compensation ex- pay day for the period in which such cept for hours in excess of en the compensation computed on bases differ- in workweek ends." Where retroactive ent from those set forth in the Fair Labor workweek. It does not require that an wage increases are made, retroactive employee be paid Standards Act. Where such legislation Is overtime compensation overtime compensation is due at the applicable and does not contravene the for hours in excess of eight per day, or time the increase is paid." requirements of the Fair Labor Stand- for work on Saturdays, Sundays. holidays or regular days of rest. If no more § 778,3 Computing overtime nay based ards Act, nothing in the act, the regula- on the "regular rate"; definition--(a) tions or the interpretation announced than a total of 40 hours is actually worked In the workweek, overtime com- "Regular rate" distinguished from. "min- by the Administrator should be taken imum rate." Overtime must be com- to override or nullify the provisions of pensation need not be paid. Nothing In the act, however, will relieve an employer pensated at a rate not less than one and these laws. Compliance with other BD- of any obligation he may have assumed one-half times the regular rate at which Plleable legislation doss not excuse non- the employee Is actually employed. The compliance with the Fair Labor by contract or of any obligation imposed by other Federal or State law to pay regular rate of pay at which the eme Standards Act. Where a higher mini- ployee is employed may not be less than mum wage than that set in the Fair premium rates for work in excess of a daily standard or for work on Saturdays. the statutory minimum." If the em- Labor Standards Act is applicable to an ployee's regular rate of pay is higher employee by virtue of such other legisla- Sundays, holidays, or other periods outside of or in excess of the normal or than the statutory minimum, his over- tion, the regular rate of the employee, as time compensation must be computed at the term is used in the Fair Labor Stand- regular workweek or workday.' (c) The workweek. if in any work- a rate not less than time and one-half ards Act, cannot be lower than such ap- based on such higher rate. plicable minimum, for the words "regular week an employee is covered by the act and is not exempt from its overtime-pay (b) The "regular rate" is an hourly rate at which he is employed" as used rate. The "regular rate" under the in section 7 must be construed to mean requirements, the employer must total all the hours worked by the employee for Fair Labor Standards Act is a rate per' the regular rate at which he Is lawfully hour. The act does not require employ- employed. him in that workweek (even though two or more unrelated job assignments may ers to compensate employees eon an THE OVERTIME PAY REQVIREMESTS have been performed), and pay overtime hourly rate basis; their earnings may be determined on a piece-rate, salary, com- 3 778.2 The 40-hour -maximum—(a) compensation for each hour worked in excess of 40 in the workweek. An em- mission or other basis, but in such case Me statutory requirements. Section 7 the overtime compensation due to ern- of the Fair Labor Standards Act deals ployee's workweek is a fixed and regularly recurringperlotl of IN lsours—aeven con- with maximum hours and overtime com- *Par a discussion of the prep-- rorthori of pensation for employees who are covered secutive 24-hour periods. It need not coincide with the calendar Week but may computing overtime.pay in a period in which by the act and are not exempt from its a change in the time of commencement of begin on any day and at any hour of the the vrorkweek is made, see § 778.10. day. For purposes of 'Section 18 (e) of the Fair Labor Stand- computing pay due 32 When the correct amount of overtime ards Amendments of 1949 (83 Stat. 910) under the Fair Labor Standards Act, the compensation cannot be determined until provides: workweek may be established for the some time after the regular pay period, the plant as a. whole or different workweeks requirements of the act win be satisfied if Any order, regulation, or interpretation of the employer pays the excess Overtime com- the Administrator of the Wage and Hour Di- may be established for different employees or group of employees within the pensation as soon alter the regular pay period vision or of the Secretary of Labor. and any as Is practicable. Payment may not be de- agreement entered Into by the Administrator plant. Once the beginning time of an layed for a period longer than is reasonably or the Secretary, in effect under the provisions employee's workweek is established, it necessary for the employer to compute and of the Fair Labor Standards Act 01 193B, as remains fixed regardless of the schedule arrange for payment of the amount due and amended, on the effective date of tida act, of hours worked by him. The beginning In no event may payment be delayed beyond shall remain in effect as an order, regula- the next pay day after such computation can tion, Interpretation, or agreement of the Ad- of the workweek may be changed if the be rn.nde. ministrator or the Secretary, as the case may "See 7'78.11. Far a discussion of overtime be, pursuant to this act, except to the extent *These statutory exclusions are set forth payments due because of increases by way that any such order, regulation, Interpreta- in § 778.4 and discussed in 718.4-778.8. of bonuses see 1778.0 (b). tion, or agreement may be inconsistent with Exceptions from the overtime requirements "Except as to ;corkers specially provided the provisions of this act, or may from time of section 7 (a) are set forth in subsections for In section 14 and workers in Puerto Rico to time be amended, modified, or rescinded by T (e) and 7 al of the act and discussed and the Virgin Islands covered by wage the Administrator or the Secretary, as the herein In II 778.19, 778.19 and 778.20. orders issued by the Administrator pursuant CAM may be, in accordance with the pro- 'The effect of making such paymente la to section 8 of the act. the statutory mini- Visions of this act. discussed in iii 7786 and 7'78.7 (d). mum la 75 cents per hour.

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Saturday, February 4, 1950 FEDERAL REGISTER - 625

ployees must be computed on the basis ular hourly rate of pay-93 cents. For weekly wage by multiplying by 24 and of the hourly rate derived therefrom and, the 10 hours of overtime the employee dividing by 52. Once the weekly wage is therefore, it is necessary to compute the is entitled to additional compensation of arrived at, the regular hourly rate of Pay regular hourly rate of such employees $4,90 (10 hours x 49 cents). For the will be calculated as indicated above." during each workweek." The regular week's work he is thus entitled to a total Under regulations of the Administrator, hourly rate of pay of an employee is of $53.90 (which is equivalent to 40 pursuant to the authority given to him determined by dividing his total remu- hours @ 98 cents plus 10 overtime hours in section 7 (f) (3) of the act, the parties neration for employment (except stat- @ $1.47) may provide that the regular rate shall - •atary exclusions) in any workweek by In some cases an employee is hired on be determined by dividing the monthly roe total number of hours actually a piece-rate basis coupled with a min- salary by the number of working days in worked by him in that workweek for imum hourly guarantee. Where the to- the month and then by the number of which such compensation was paid. A tal piece-rate earnings for the week fall hours of the norm.: or regular workday. few examples of the proper method of short of the amount that would be Of course, the resultant rate in such a determining the regular rate of pay in earned for the total hours at the guar- case must not be less than the statutory particular instances may be helpful: anteed rate, the employee is paid the minimum of 75 cents per hour. (1) Hourly rate employee. If the em- difference. In such weeks the employee (5) Salaried employees: irregular ployee is employed solely on the basis of is in fact paid at an hourly rate and the hours. If an employee earns $46 per a single hourly rate, the hourly rate is minimum hourly guarantee which he week with the understanding that the his "regular rate." For his overtime was paid is his regular rate in that week. salary is to cover all hours worked and if work he must be paid, in addition to his In the example Just given, if the em- his hours of work fluctuate from week straight-time hourly earnings, a sum ployee was guaranteed $1.10 an hour for to week, his regular rate of pay will vary determined by multiplying one-half the Productive working time, he would be from week to week and will be the aver- hourly rate by the number of hours paid $50.60 (46 x $1.10) for the 46 hours age hourly rate each week. Suepose that worked in excess of 40 in the week. Thus of productive work (instead of the $46 during the course of four weeks the em- a $1.00 hourly rate will bring, for an earned at piece rates). In a week in ployee works 40, 46, 50, and 41 hours. employee who works 46 hours, a total which no waiting time was involved, he His regular hourly rate of pay in each weekly wage of $49.00 (46 hours @ $1 would be owed an additional b5 cents of these weeks is approximately $1.15, plus 6 hours @ 50 cents). In other (half time) for each of the 6 overtime $1, 92 cents and.$1.12, respectively. Since words the employee is entitled to be paid hours worked, to bring his total compen- the employee has already received an amount equal to $1 an hour for 40 sation up to $53.90 (46 hours @ $1.10 straight time compensation on a salary hours arid $1.50 an hour for the 6 hours plus 6 hours @ 55 cents or 40 hours @ basis for all hours worked, only addi- of overtime, or a total of $49. $1,10 plus 6 hours @ $1.65) . If he is paid tional half-time is due. For the first If, in addition to the earnings at the at a different rate for walling time, his week the employee is entitled to be paid hourly rate, a production bonus of $4,60 regular rate is the weighted average of $46; for the second week $49 ($46 plus is paid, the regular hourly rate of pay is the two hourly rates." 6 hours @ 50 cents) or (40 bolus @ $1. $1.10 an hour (46 hours @ $1 yields $46. (3) Day rates and lob rates. If the plus 6 hours (e) $1.50) ; for the third week The addition of the $4,60 bonus makes employee is paid a flat sum for a day's $50.60 ($46 plus 10 hours @ 46 cents) a total of $50,60; this total divided by 46 work or for doing a particular job, with- or (40 hours @ 92 Cents plus 10 hours hours yields a rate of $1.10). The em- out regard to the number of hours @ $1.33) ; for the fourth week approxi- ployee is then entitled to be paid a total worked in the day or at the job, and if he mately $46.56 ($46 plus 1 hour @ 56 wage of $53.90 for 45 hours (46 hours receives no other form of compensation cents) or (4(1 hours @ $1.12 Plus 1 hour @ $1.10 plus 6 hours @ 65 cents or 40 for services, his regular rate is deter- @ $1.68). hours @ $1.10 plus 6 hours (0) $1.65). mined by totaling all the stuns received (c) Employees working at two rates. (2) Pieceworker. When an employee at such day rates or job rates in the Where an. employee in' a single work- is employed on a piece rate basis, his workweek and dividing by the total hours week works at two or more different types regular hourly rate of pay is computed actually worked. He is then entitled to of work for which different basic hourly hll adding together his total weekly extra half-time pay at this rate for ell rates (of not less than '15 cents) have earnings from piece rates arid all other hours worked In.excets of 40 in the work- been established, his regular rate for sources (such as production bonuses) week, that week is the weighted average of and any sums paid for waiting time or (4) Salaried employees; general. If such rates. That. is, his total earnings other hours worked (except statutory the employee is employed solely on a (except statutory exclusions) from all exclusions). This sum is then divided by weekly salary basis, his regular hourly such rates are divided by the total num- the number of hours worked in the week rate of Pay, on which time and a hall ber of hours worked at all Jobs." for which such compensation was paid must be paid, is computed by dividing (d) Payments other than cash. Where to yield the pieceworker's "regular rate" the salary by the number of hours which payments are made to employees in the for that week. For his overtinte Work the salary le intended to compensate. If form of goods or facilities which are re- the pieceworker is entitled to be paid, an employee is hired at a salary of $40 garded as part of wages, the reasonable in addition to his total weekly earnings, and if it is understood that this salary cost to the employer of such goods or of a sum equivalent to one-half this regu- is compensation for the regular work- furnishing such facilities must be Includ- lay rate of pay multiplied by the number week of 35 hours, the employee's regu- ed in the regular rate." Where, for ex- of hours worked in excess of 40 in the lar rate of pay is $40 divided by 35 hours, ample, an employer furnishes lodging to week." Only additional half-time pay is or $1.14 an hour, and when he works his employees in addition to cash wages, required in such cases since the employee overtime he is entitled to receive $1.14 for the reasonable cost of the lodging (per has already received straight-time com- each of the first 40 hours and $1.71 (one week) must be added to the cash wages before the regular rate Is determined. pensation at piece rates for all hours and one-half times $1.14) for each hour thereafter. If an employee Is hired at a worked. Thus, if the employee has salary of $40 for a 40-hour week, his "The regular rate of an employee who is earned $46 at piece rates for 46 hours of regular rate is $1 an hour. If his salary paid a regular monthly salary of $130, or a productive work and in addition has been is $40 for a 44-hour week, his regular rate regular semi-monthly salary of $55. is thus found to be 750 per hour. The Administrator compensated at '15 cents an hour for 4 is 91e per hour. Where the salary covers hours of waiting time, his total compen- has announced that, es an enforcement pol- a period longer than a workweek, such icy, he will consider that payment of such sation—$49—must be divided by his total as a month, it must be reduced to its regular monthly or semi-monthly salary is hours of work-50—to arrive at his reg- workweek equivalent, A monthly salary in accordance with the minimum wage re- is subject to translation to its equivalent quirements 3f the act. "For a discussion of the exceptions to this weekly wage by multiplying by 12 (the "For a discuszion or the exceptions to this rule under sections 7 (o) and 7 (f), see number of months) and dividing by 52 rule provided by section 7 (f) of the act see 41 778.18, 778.19, and 778.20. (the number of weeks). A send-monthly 14 778.19 and 778.20. "For an alternative method of complying "See 14 777.7 and 777.12 (b) of this chapter With the overtime requirements or the act salary is translated into its equivalent for a discussion as to the Inclusion or goods as far as pieceworkers are concerned see and facilities in wages and the method of 1778,19 (b). See 1 778.3 (c). determining reasonable cost.

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62$ RULES AND REGULATIONS

IVEAT PAIrafirms AU EXCLUDZII allOat THE Section 7 (g) provides as follows: overtime hours against the overtime "irscmial NAYS" Extra compensation paid as described in compensation which is due under the statute for hours in excess of 40 in that. Paragraphs (5), (8), and (7) of subsection (d) 1778.4 The statutory provisions. shall be creditable toward overtime com- workweek. If the same contract further Section 7 (d) provides as follows: pensation payable pursuant to this section: provided for the payment of $1.75 for As used in this section the "regular rate" hours in excess of 12 per day, the extra It is important to determine the scope 75-cent payments could likewise be cred- at which an employee is employed shall be of these exclusions, since all remunera- deemed to Include all remuneration for em- ited toward overtime compensation due ployment paid to, or on behalf of. the em- tion for employment paid to employees under the act. Similarly, where the ployee. but shall not be deemed to include: which does not fall within one of these employee's normal or regular daily or (1) Bunn paid as gifts; payments in the seven exclusionary clauses must be added weekly working hours are greater or less nature of gifts mad:, at Christmas time or on into the total compensation received by other special occasions, as a reward for serv- than 8 hours and 40 hours respectively the employee before his regular hourly and his contract provides for the pay- ice, the amounts of which are not measured rate of pay is determined. by or dependent on hours worked, production, ment of premium rates for work in ex- or efficiency; [discussed in l 7784 (e) 778.5 Extra compensation paid for cess of such normal or regular hours of (2) Payments made for occasional periods overtime—(a) General statement. Cer- work for the day or week (such as 7 in when no work Is performed due to vacation, tain premium payments made by em- a day or 95 in a week) the extra com- holiday. illness, failure of the employer to ployers for work in excess of or outside pensation provided by such premium provide sufficient work, or other similar rates, paid for excessive hours, is a true payments for traveling ex- of specified daily or weekly standard Calais; reasonable overtime premium to be excluded from panne, or other expenses, incurred by an work periods or on certain special days employee in the furtherance of his employer's are regarded as overtime premiums. In the regular rate and it may be credited interests and properly reimbursable by the such case, the extra compensation pro- towards overtime compensation due un- mployer; and other similar payments to an vided by the premium rates need not be der the act." employee which are not made as °Come:na- included in the employee's regular rate Where payment at premium rates for tion for his hours of employment; [discussed of pay for the purpose of computing hours worked in excess of a specified In I 7711.71 overtime compensation due under sec- daily or weekly standard is made pur- (I) Cams paid in recognition of services suant to the requirements of another performed during a given period if either, (a) tion 7 (a) of the Fair Labor Standards both the fact that payment is to be made and Act. Moreover, this extra compensation applicable statute, the extra corapense- the amount of the payment are determined may be credited towards the overtime tion provided by such premium rates will at the sole discretion of the employer at or payments required by the act. be regarded as a true overtime premium. near the end of the period and not pursuant The three types of extra premium pay- Extra premium compensation paid to any prior contract, agreement, or promise ments which may thus be treated as pursuant to contract or statute for work cawing the employee to expect such pay- overtime premiums for purposes of the on the sixth or seventh day worked in ments regularly: or (b) the payments are Fair Labor Standards Act, as amended the workweek Is regarded in the same made pursuant to a bona fide profit-sharing light as premiums for work in ex- plan Or trust or bona fide thrift or savings are outlined in sections 7 (d) (5), (6) paid plan. meeting the requirements of the Ad- and (7) of the act as set forth in the pre- cess of 40 hours or the employee's normal ministrator set forth in appropriate regula- ceding Section. These are discussed in or regular workweek. tions welch he shall issue, having due regard detail In the paragraphs following. (c) Premium pay for work on Satur- among other relevant factors. to the extent Section 7 (g) of the act specifically days, Sundays, and other "special days". to which the amounta paid to the employee states that the extra compensation pro- Extra compensation provided by a pre- are determined without regard to hours ot vided by these three types of payments mium rate of at least time and one-half work, production, or efficiency; or (c) the payments are talent fees (as such talent fees may be credited toward overtime com- which is paid for work on Saturdays, are defined and delimited by regulations of pensation due under section 7 for work Sundays, holidays, or regular days of rest the Administrator) paid to performers, in- in excess of 40 hours in a workweek. No or on the sixth or seventh day of the cluding announcers, on radio and television other types of remuneration for employ- workweek (hereinafter referred to as programs; [discussed In If '778.6 and 778.8] ment may be so credited. "special days") may be treated as an (4) Contributions irrevocably made by an (b) Premium pay for hours in excess overtime premium for the purpose of the employer to a trustee or third person pur- of a daily or weekly standard. Many em- act. If the premium rate is less than suant to a bons fide plan for providing old- ployment contracts provide for the pay- time and one-half, the extra compensa- age, retirement, life, accident, or health tion provided such rate must be in- Insurance or similar, benefits for employees; ment of overtime compensation for hours by [discussed in I 778.0 (g) worked in excess of 8 per day or 40 per cluded in determining the employee's (5) Extra compensation provided by a week. Under some contracts such over- regular rate of pay and cannot be cred- premium rate paid for certain hours worked time compensation is fixed at time and ited toward statutory overtime due, un- by the employee in any day or workweek be- one-half the base rate; under others the less it qualifies as an overtime premium cause such hours are hours worked in excess overtime rate may be greater or less •under section 7 (d) (5). of eight in a day or forty in a workweek or 'than time and one-half the base rate. The premium rate must be at least In excess of the employee's normal working "one and one-half times the rate estab- hours or regular working hours, as the case If the payment of such contract over- may be; (discussed in 778.5 (a) and (b)1 time compensation is in fact contingent lished in good faith for like work per- [8) Extra compensation provided by a upon the employee's having worked 8 formed in nonovertime hours on other premium rate paid for work by the employee hours in a day or 40 hours in a week, the days." Where an employee is hired on on Saturdays, Sundays, holidays, or regular extra compensation is excluded from the the basis of a salary for a fixed workdays of rest, or on the sixth or seventh day regular rate and may be credited toward week or at a single hourly rate of pay, the of the workweek, where such premium rate statutory overtime payments." rate paid for work on "special days" Is not less than one and one-half times the Thus, if an employee is hired at the must be at least time and one-half his rate established in good faith for like work rate of $1 an hour and receives, as over- regular hourly rate in order to qualify performed in nonovertime hours on other time compensation under his contract, under this section. If the employee is a days; or [discussed in 1 778.5 (c) and (e) ) of $1.40 per hour for each hour actually pieceworker or if he works at more than (7) ,Extra compensation provided by a worked in excess of 8 per day, his em- premium rate paid to the employee. in pur- ployer may credit the total of the extra evro qualify as overtime premiums under suance of an applicable employment contract section 7 (d) (5) the daily overtime premium or collective-bargaining agreement. for work 40-cent payments thus made for daily payments must be made for hours In excess outside of the hours established In good faith of 8 hours per day or the employee's normal by the contract or agreement as the baste, "In situations where it is the custom to or regular working hours. If the normal normal, or regular workday (not exceeding pay employees for hours during which no workday is artificially divided into a "straight eight hours) or workweek (not exceeding work la performed due to vacation, holiday, time" period to which one rate is assigned, illness, failure of the employer to provide followed by a so-called "overtime" period forty hours), where such premium rate is not sufficient work, or other similar cause, as UM than one and one-half times the rate for which a higher "rate" Is specified, the these terms are explained In 778.7. it la arrangement will be regarded as a device to established in good faith by the contract or permissible (but not required) to count contravene the statutory purposes and the agreement for like work performed during these hours as hours worked in determining premiums will be considered part of the reg- such workday or wo.kweek. 'Discussed In whether overtime pay Ix due for hours In ex- ular rate. For a fuller discussion on thin 775.5 (a) and (e)1 cess of 8 per day or 4 per week. problem, see 5 778.22.

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Saturday, February 4, 1950 FEDERAL REGISTER 627

one Job for which different hourly or Is a premium Imposed as a penalty upon will necessarily be based on all. the facts, piece rates have been established and the employer for failure to give adequate Including those showing the terms of the these are bona fide rates applicable en notice and to compensate the employee oral contract and the actual employment the work when performed during non- for the inconvenience of disarranging and pay practices thereunder. overtime hours, the extra compensation his private life. The extra compensa- (e) Examples illustrating the applica- provided by a premium rate of at least tion is not an overtime premium. It is tion of section 7 (d) (6) and (7)—(1) one and one-half times either (1) the part of his regular rate of pay. Premiums for weekend and holiday work. bona fide rate applicable to the type of (d) "Clock -pattern" premium pay. The application of section 7 Id ) (6) may Job the employee perform- on the "spe- Where a collective bargaining agreement be illustrated by the following example. cial days," or (2) the ..71qage hourly or other applicable employment contract Suppose an agreement of employment earnings in the week in question, will in good faith establishes certain hours calls for the payment of $1.50 an hour qualify as an overtime premium under of the day as the basic, normal or regu- for all hours worked on a holiday or on this subsection." lar workday (not exceeding eight hours) Sunday in the operatipn of machines The statute authorizes such premiums or workweek (not exceeding 40 hours) whose operators are paid a bona fide to be treated as overtime premiums only and provides for the payment of a pre- hourly rate of $1.00 for like work per- if they are actually based on "rates mium rate for work outside such hours, formed during nonovertime hours on established in good faith." This phrase the extra compensation provided by such other days. Suppose further that the is used for the purpose of distinguish- premium rate will be treated as an over- workweek of such nn employee begins ing the beag fide employment standards time premium if the premium rate is at 12;01 a. m. Sunday, and in a particular contemplated by section 7 (d) (0) from not less than one and one-half times the week he works a schedule of 8 hours on fictitious schemes and artificial or eva- rate established in good faith by the Sunday and on each day from Monday aivo devices." Clearly, a rate which contract or agreement for like work per- through Saturday, malting a total of Yields tho employee less than time and formed during the basic, normal or regu- 50 hours worked in the Workweek. one-half the minimum rate prescribed lar workday or workweek,' Tuesday is n holiday. The payment of by the statute would not be a rate estab- To qualify as an overtime premium $04 to which the employee is entitled lished in good faith, under this section the premium must under tile employment agreement will To qualify as an overtime premium be paid because the work was performed satisfy the requirements of the act since under this section, the extra compensa- during hours "outside of the hours estab- the employer may properly exclude from tion must be paid for work on the speci- lished • • • as the basic • • • the regular rate the extra $4.00 paid for fied days. The term "holiday" is read workday or workweek" and not for some work on Sunday and the extra $9.00 in its ordinary usage to refer to those other reason. Thus, if the basic workday paid for holiday work and credit him- days customarily observed in the com- Is established in good faith as the hours self with such amount against the statu- munity in celebration of some historical from 8 a, m. to 5 p. m. a premium of time tory overtime premium required to be or religious occasion, A day of rest ar- and one-half paid for hours between 5 paid for the 16 hours worked over 40. bitrarily granted to employees because p. rn. and 8 a. rn. would qualify as an (2) Premiums-for work outside basic of lack of work is not a "holiday" within overtime premium, However, where the workday or workweek. The effect of sec- the meaning of this section, nor is it a contract does not provide for the pay- tion 7 (d) (7) where "clock pattern" pre- "regular day of rest." The term "regu- ment of a premium except for work be- miums are paid may be illustrated by lar day of rest" means a day on which tween midnight and 6 m. the premium reference to provisions typical of the the employee in accordance with his would not qualify under this.section since applicable collective bargaining agree- regular prearranged schedule Is not ex- it is not a premium paid for work outside ments traditionally in effect between pected to report for work. In some in- the established workday but only for employers and employees in the long stances the "regular daY of rest" occurs certain special hours outside the estab- -shore and stevedoring industries. These on the same day or days each week for lished workday, in most Instances agreements specify straight-time rates a particular employee; in other cases. because they are undesirable hours. applicable during the hours established pursuant to a swing shift schedule, the Similarly, where payment of premium in good faith under the agreement as the scheduled day of rest rotates in a definite rates for work are made after 5 p. m. oLly basic, normal, or regular workday and Pattern, such as six days of work fol- if the employee has not had a meal period workweek. Under one such agreement, lowed by two days of rest. In either or rest period they are not, regarded as for example, such workday and workweek case the extra compensation provided by overtime premiums; they are premiums are established as the first six hours of a premium rate for work on such sched- paid because of undesirable working work, exclusive of mealtime, each day, uled days of rest (if such rate is at least conditions. Monday through Friday, between the one and one-half times the bona fide Premiums of the type which section hours of 8 a. tn. and 5 p. in. Under rate established for like work during 7 (ci) (7) authorizes to be treated as another typical agreement, such work- non-overtime hours on other days) may overtime premiums, must be paid "in day and workweek are established as the be treated as an overtime premium and pursuance of an applicable employment hours between 8 a. tn. and 12 noon and thus need not be included in computing contract or collective bargaining agree- between 1 p. m. and 5 p. m., Monday the employee's regular rate of pay and ment," and the rates of pay and the daily through Friday. Work outside such may be credited toward overtime pay- and weekly work periods referred to must workday and workweek s paid for at ments due under the act. be established in good faith by such con- premium rates not less than one and The premium must, however, be paid tract or agreement. Although as a one-half times the bona fide straight- because work is performed on the days general rule a collective bargaining time rates applicable to like work when specified and not for some other reason agreement is a formal agreement which performed during the basic, normal, or which would not qualify the premium as has been reduced to writing, an employ- regular workday or workweek. The extra an overtime premium under section ment contract for purposes of section 7 compensation provided by such premium 7 (d) (5), (6) or (7)." Thus a premium (d) (7) may be either written or oral. rates will be excluded in computing the rate paid an employee only when he re- Where there is a written employment regular rate at which the employees so ceives less than 24 hours' notice that he contract and the practices of the parties paid are employed and may be credited is required to report for work on his differ from its provisions, it must be de- toward overtime compensation due under regular day of rest is not a premium paid termined whether the practices of the the Fair Labor Standards Act. For ex- for work on one of the specified days; it parties have modified the contract. If ample, if an employee is paid $1 00 an the practices of the parties have modified hour under such an agreement for han- 2' For a fuller discussion of computation on the written provisions of the contract, dling general car go during the basic, the average rate, see § 775.5 (b) (2); on the the provisions of the contract as modi- normal, or regular workday and $1.50 rate applicable to the Job, see § 778.19; on the fied by the practices of the parties will per hour for like work outside of such "established" rate, see 775.20. For further discussion of such devices, be controlling in determining whether workday, the extra 50 cents will be ex- see § 778.21 and following. the requirements of sectlo-17 (d) (7) are cluded from the regular rate and may be :3 For examples distinguishing pny for work satisfied. The determination as to the credited to overtime pay due under the on a holiday from idle holiday pay, eee existence of the requisite provisions in act. Similarly, if the straight-time rate § 778.7 (d) (2). an applicable oral employment contract established in good faith by the contract

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628 RULES AND . REGULATIONS

should be higher because of handling payments made pursuant to certain of the act and no recomputation will be dangerous or obnoxious cargo, recogni- profit-sharing, thrift and savings plans. required. tion of skill differentials, or similar rea- These are discussed in paragraphs (d) (d) Discretionary bonuses. Section 7 sons, so as to be $1.50 an hour during the through (g) of this section. Bonuses (d) (3) (a) provides that the regular hours established as the basic or normal which do not qualify for exclusion from rate shall not be deemed to include "Sums or regular workday or workweek, and a the regular rate as one of these types Paid in recognition of services performed premium rate of $2.25 an hour is paid for must be totaled in with other earnings to during a given period if * • • (a) the same work performed during other determine the regular rate on . which both the fact that payment is to be made hours of the day or week, the extra 75 overtime pay must be based. and the amount of the payment are de- cents may be excluded from the regular (b) Method of inclusion of bonus in termined at the sole discretion of the em- rate of pay and may be credited toward regular rate. Where a bonus payment is ployer at or near the end of the period overtime pay due under the act. Similar considered a part of the regular rate at and not pursuant to any prior contract, principles are applicable where agree- which an employee is employed, it must agreement, or promise causing the em- ments following this general pattern be included in computing his regular ployee to expect such payments regu- exist in other industries. hourly rate of pay and overtime com- larly • * •,, (f) Other types of contract premium pensation. No difficulty arises in com- Such sums may not, however, be credited pay distinguished. The various types of puting overtime compensation if the toward overtime compensation due under contract premium rates which provide bonus covers only one weekly pay period. the act." extra compensation qualifying as over- The amount of the bonus is merely added In order for a bonus to qualify for time premiums to be excluded from the to the other earnings of the employee exclusion under this subsection the em- regular rate (under section 7 (d) (5), (except statutory exclusions) and the ployer must retain discretion both as to (6), and (7) ) and credited toward total divided by total hours worked. statutory overtime pay requirements the fact of payment and as to the amount Under many bonus plans, however, cal- until a time quite close to the end of the (under section 7 (g ) ) have been de- culation of the bonus may necessarily be period for which the bonus is paid, The scribed in paragraphs (a) through (e) deferred over a period of time longer sum, if any, to be paid as a bonus is of this section. The plain wording of than a workweek. In ouch a case the determined by the employer without the statute makes it clear that extra, employer may disregard the bonus in prior promise or agreement. The em- compensation provided by premium computing the regular hourly rate until rates other than those described cannot such time as the amount of the bonus ployee has no contract right, express or be treated as overtime premiums, Wher- can be ascertained. Until that is done implied, to any amount. If the employer ever such other premiums are paid, they he may pay compensation for overtime at promises in advance to pay a bonus, he has abandoned his discretion with regard must be included in the employee's regu- one and one-half times the regular rate lar rate before statutory overtime com- paid the employee, exclusive of the bonus. to it. Thus, if an employer announces pensation is computed; no part of such When the amount can be ascertained, it to his employees in January that he in- premiums may be credited toward statu- must be apportioned back over the work- tends to pay them a bonus in June, he has thereby abandoned his discretion re- tory overtime pay. weeks of the period during which it may garding the fact of payment by promis- Thus, the act requires the inclusion in be said to have been earned. The em- ing a bonus to his employees. Such a the regular rate of such extra premiums ployee must then receive an additional bonus would not be excluded from the as night shift differentials (whether amount of compensation for each week regular rate under this subsection. they take the form of a percent of the that he worked overtime during the pe- base rate or an addition of so. many riod -equal to one-half of the hourly rate Similarly, an employer who promises to cents per hour) and premiums paid for of pay allocable to the bonus for that sales employees that they will receive a monthly bonus computed on the basis of hazardous, arduous or dirty work. It week multiplied by the number of over- allocating 1 cent for each item sold also requires inclusion of any extra com- time hours worked during the week. If pensation which is paid as an incentive it Is impossible to allocate the bonus whenever, in his discretion, the financial condition of the firm warrants such pay- for the rapid performance of work, and among the workweeks of the period in ment, has abandoned discretion with re- since any extra compensation in order proportion to the amount of the bonus gard to the amount of the bonus though to qualify as an overtime premium must actually earned each week, some other not with regard to the fact of payment. be provided by a premium rate par hour,u reasonable- and . equitable method of al- Such a bonus would not be excluded from lump sum premiums which are paid location must be adopted. For example, the regular rate. On the other hand, if without regard to the number of hours It may be assumed that the employee a bonus such as the one just described. worked are not overtime premiums and earned an equal amount of bonus each were paid without prior contract, promise must be included in the regular rate. hour of the pay period and the resultant or announcement and the decision as to For example, where an employer pays hourly increase may be determined by the fact and amount of payment lay in 8 hours' pay for a particular job whether dividing the total bonus by the number the employer's sole discretion, the bonus it is performed in 8 hours or in less time, of hours worked by the employee during would be properly excluded from the the extra premium of two hours' pay the period for which it is paid. The regular rite. received by an employee who completes additional compensation due for over- The bonus, to be excluded, must not be the job in six hours must be included in time may then be computed by multiply- his regular rate. Similarly, where air ing the total number of overtime hours paid "pursuant to any prior contract, employer pays for 8 hours at premium worked during the period by one-half agreement, or promise." For example, rates for a job performed during the this hourly increase. any bonus which is promised to em- overtime hours whether it is completed (c) ployees upon hiring or which is the re- Percentage of total earnings as sult of collective bargaining would not in 8 hours or less, no part of- the pre- bonus. In some instances the contract or miums paid qualify as overtime premi- be excluded from the regular under this plan for the payment of a bonus may also subsection. Bonuses which are an- ums under section 7 (d) (5), (6), or (7).'' provide for the simultaneous payment of nounced to employees to induce them to overtime compensate n due on the bonus. 1778.6 Bonuses — (a) Introduction. work more steadily For example, a contract made prior to the or more rapidly or Section 7 (d) of the act requires the in- more efficiently or to remain with the clusion in the regular rate of all remu- performance of services may provide for the payment of additional compensation firm are regarded as part of the regular neration for employment except seven rats of pay. Attendance bonuses, indi- specified types of payments. Among in the way of a bonus at the rate of 10 vidual or group production bonuses, these are discretionary bonuses, gifts and percent of the employee's straight time bonuses for quality and accuracy of payments in the nature of gifts on spe- earnings, and 10 percent of his overtime work, bonuses contingent upon the em- cial occasions, contributions by the earnings." In such instances, of course, ployee's continuing in employment until employer to certain welfare plans and payments according to the contract will the time the payment is to be made and satisfy in full the overtime provisions "Except in the special case of pieceworkers Bonus payments are payments made In Is discussed in 1 '778.19. But compare the use of this form of pay- addition to the regular earnings of an em- 25 For a further discussion of this and re- ment as a device to evade the overtime re- PloYc'e For a d!setission of the bonus form lated problems see 11 118.14 and '778.15. quireracnts of the act, as described In 1 778.23. as an evasive bookkeeping device, see § 778.23.

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Saturday, February 4, 1950 FEDERAL REGISTER 629 the like are in this category. They must ante or similar benefits for employees • • is or not the plan meets the foregoing re- be included in the regular rate of pay. quirements. If the plan does not qualify (e) Gifts, Christmas and special oc- Such sums may not, however, be credited as a bona fide welfare plan under sec- casion bonuses. Section 7 (d) (1) pro- toward overtime compensation due under tion 7 (d) (4), the contribution is vides that the term "regular rate" shall the act. treated the same as any bonus payment not be deemed to include: In order for an employer's contribu- which is part of the regular rate of pay, Sums paid as gifts: payments in the notion to qualify for exclusion from the and at the time the contribution is made tura of gifts made at Christmas time or on regular rate under this section the fol- the amount thereof must be apportioned other special occasions, as a reward for serv- lowing conditions must be met: back over the workweeks of the period ice, the amounts of which aro not measured (1) There must be a formal plan or during which it may be said to have ac- by or dependent on hours worked, produc- system set up by the employer. This crued. Overtime compensation based tion, or efficiency • • •. may be either a company-financed plan upon the resultant increases in hourly Such sums may not, however, be credited or an employer-employee contributory rate is due for each overtime hour toward overtime compensation due un- plan. worked during any workweek of the pe- der the act. (2) The primary purpose of the plan riod. The subsequent distribution of To qualify for exclusion under this must be that of providin g systematically accrued funds to an employee on account section the bonus must be actually a gift for the payment of definitely determina- of severance of employment (or for any or in the nature of a gift. If it is meas- ble benefits to employees on account, of other reason) would not result in any ured by hours worked, production or ef- death, disability or retirement or to pro- increase in his regular rate In the week ficiency, the payment is geared to wages vide medical care, hospitalization bene- in which the distribution is made. and hours during the bonus period and fits, and the like. (This type cf plan 1779.7 Paymcnt not for hours is no longer to be considered as in the will be referred to ns n welfare plan,) worked—(a) The staiutory provision, nature of a gift, If the payment is so (3) The employer's contributions must Section 7 (d) (2) provides that the term substantial that it can be assumed that be paid irrevocably to n third party ac- "regular rate" shall not be deemed to employees Consider it a part of the wages cording to a trust or other funded ar- Include: for which they work, the bonus cannot rangement (such as an Insurance plan). The trust or fund must be set up in such pnymontn made for occasional periods when be considered to be in the nature of a no work in performed due to vacation, hell- gift, Obviously, it the bonus is paid a way that In no event will the employer day, illness, failure of the employer to pro- Pursuant to contract (so that tho em- be able to recapture any of the contri- vide ailificient work, or other similar cause; ployee has a legal right to the payment butions paid in nor in any way divert reasonable payments tar traveling expenses, and could bring Suit to enforce it), it is the funds to his own use. Where the or other expenses, incurred by an employee in not In the nature of a gift. Payments are made to a single trustee, the furtherance of hie employer's interests If the bonus paid at Christmas or on the trustee must be an individual other and properly reimbursable by the employer: than the employer or an officer, affiliate and other similar payments to en employee other special occasion is a gift or in the which are not made an compensation for his nature of a gift, it will be excluded from 'or representative of the employer. If hours of employment • • •. the regular rate under this subsection the payments are made to a group of even though It is paid with regularity so trustees, the majority must not be of- However, since such payments are not that the employees are led to expect it ficers, affiliates, or representatives of the compensation for work, no part of such and even though the amounts paid to employer. payments can be credited toward over- different employees or groups of em- (4) No employee has the right to as- time compensation due under the act. ployees vary with the amount of the sign his benefits under the plan nor the (b) Reimbursement for expenses. salary or regular hourly rate of such option to receive any part of the em- Where an employee incurs expenses on employees or- according to their length ployer's contributions in cash instead of his employer's behalf or where he Is re- of service with the firm so long as the the benefits under the plan. Provided, quired to expend sums solely by reason of amounts are not measured by or directiy however, That if a plan otherwise quali- action taken for the convenience of his dependent upon hours worked, produc- fies as a bona fide welfare plan under employer, reimbursement for such ex- tion or efficiency. A Christmas bonus this subsection, it will still be regarded penses is not included in the employee's paid (not pursuant to contract) In the as a bona fide plan even though it pro- regular rate (if the amount of the re- amount of two weeks' salary to all em- vides, as an incidental part thereof, for imbursement reasonably approximates ployees and an equal additional amount the payment to an employee in cash of the expenses incurred). Such payment for each 5 years of service with the firm, all or a part of the amount standing to is not compensation for services ren- for example, would .be excluded from his credit at the time of the severance dered. the regular rate under this category. of the employment relation due to Payment by way of reimbursement for (f) Profit-sharing, thrift and savings causes other than retirement, disability the following types of expenses will not plans. Section 7 (d) (3) (b) provides or death, and even though, upon proper be regarded as part of the employee's reg- that the term "regular rate" shall not be termination of the plan, the amounts ular rate: deemed to include: standing to the credit of participating (1) The actual amount expended by an employee in purchasing supplies, tools, sums paid in recognition of se-vices per- employees are distributed to them at the formed during a given period if • r • time of termination. materials, or equipment on behalf of his the payments are made pursuant to a bona The Administrator's position on the employer. fide profit-sharing plan or trust or bona fide question of when an employer's contri- (2) The actual or reasonably approxi- thrift or savings plan, meeting the require- butions to a welfare plan may be ex- mate amount expended by an employee ments of the Administrator set forth in ap- cluded from the regular rate under this in purchasing, laundering, or repairing propriate regulations • • •. subsection is similar to that of the uniforms or special clothing which his Such sums may not, however, be credited Bureau of Internal Revenue in deter- employer requires him to wear. toward overtime compensation due under mining. what constitutes "wages" for (3) The actual or reasonably approxi- the act. The Administrator has issued social security tax purposes. If the pay- mate amount expended by an employee, regulations under this section which are ments in question are excluded from the who is travelling "over the road". on his published in the FEDERAL REGISTER EIS category of wages under section 1426 (a) employer's business, for transportation Part 549. Payments made pursuant to (2) of the Federal Insurance Contribu- (whether by private car or common car- plans which meet the requirements of tons Act and section 1607 (b) (2) of the rier) and living expenses away from Federal Unemployment Tax Act, they the regulations in this part will be prop- home; other travel expenses, such as would not be regarded by the Adminis- erly excluded from the regular rate. taxicab fares, incurred while travelling (g) Welfare plans. Section 7 (d) (4) trator as part of the regular rate of pay on the employer's business. provides that the term "regular rate" under section 7 (d) of the Fair Labor shall not be deemed to include: Standards Act, as amended. (4) "Supper money"—a reasonable amount given to an employee, who ordi- Contributions irrevocably made by an em- It should be emphasized that it is the ployer to a trustee or third person pursuant employer's contribution to the fund or narily works the day shift and can to a bona fide plan for providing old-age, trust that is excluded from or included ordinarily return home for supper, to retirement, life, accident, or health insur- in the regular rate according to whether cover the cost of supper when he is

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630 RULES AND REGULATIONS requested by his employer to continue It does not refer to days of rest given to the $48 may be offset against the statu- work during the evening hours. employees in lieu of or as an addition to tory overtime compensation which is due, (5) The actual or reasonably approxi- compensation for working on other days. (Nothing in this example is intended to mate amount expended by an employee The term "failure of the employer to imply that the employee has a statutory as temporary excess home-to-work provide sufficient work" is intended to right to $48 or any other sum as vacation travel expenses incurred (i) because the refer to occasional, sporadically. recur- pay." This is a matter of private con- employer has moved the plant to another ring situations where the employee would tract between the parties who may agree town before the employee has had an normally be working but for such a fac- that vacation pay will be measured by opportunity to find living quarters at the tor as machinery breakdown, failure of straight-time earnings for any agreed new location or (ii) because the em- expected supplies to arrive, weather con- number of hours or days, or by total ployee, on a particular occasion, is re- ditions affecting the ability of. the em- normal or expected take-home pay for quired to report for work at a place other ployee to perform the work and similarly the period or that no vacation pay at all than his regular workplace. unpredictable obstacles beyond the con- will be paid. The example merely illus- The foregoing list is intended to be trol of the employer. The term does not trates the proper method of computing illustrative rather than exhaustive, include reduction in work schedule," overtime for an employee Whose employ- It should be noted that only the actual Ordinary temporary lay-off situations or ment contract provides $48 vacation or reasonably approximate amount of any type of routine, recurrent absence Pay.) the expense is excluded from the regular of the employee. (2) An employee, who is entitled, un- rate. If the amount paid as "reimburse- The term "other similar cause" refers der his employment contract, to 8 hours' ment" is disproportionately large, the to payments made for periods of pay at his rate of $1 an hour for the excess amount will be included in the absence due to factors like holidays, Christmas holiday, foregoes his holiday regular rate. Vacations, sickness and failure of the and works 0 hours on that day. During. The expenses for which reimburse- employer to provide work. Examples of the entire week he works a total of 50 ment is made must, in order to merit "similar causes" are absences due to jury hours. He is paid, under his contract, exclusion from the regular rate under service, reporting to a draft board, at- $50 as straight-time compensation for this section, be expenses incurred by the tending a funeral of a family member, 50 horns plus $8 as idle holiday pay. He employee on the employer's behalf or inability to reach the workplace because is owed, under the statute, an additional for his benefit or convenience, If the of weather conditions. Only absences of as overtime premium (additional half- employer reimburses the employee for a non-routine character which aro in- time) for the 10 hours in excess of 40. expenses normally incurred by the em- frequent or sporadic or unpredictable are His rate of $1 per hour has not been in- ployee for his own benefit, he is, of included in the "other similar cause" creased by virtue of the holiday pay but course, increasing the employee's regu- category, no part of the $8 holiday pay may be lar rate thereby. An employee normally (c1) Pay for foregoing holidays and credited toward statutory overtime com- incurs expenses in traveling to and from vacations. As stated in paragraph (c) pensation due. work, buying lunch, paying rent, and the of this section, certain payments made to The latter example should be distin- like. If the employer reimburses him an employee for periods during which he guished from a situation in which an for these normal everyday expenses, the performs no work because of a holiday or employee is entitled to idle holiday pay payment is not excluded from the regu- vacation are not required to be Included only when he is actually idle on the holi- lar rate as "reimbursement for ex- in the regular rate because they are not day, and who, if he foregoes his holiday penses." Whether the employer regarded as compensation for working. aiso, under his contract, foregoes his "reimburses" the employee for such ex- Suppose an employee who is entitled to idle holiday pay. The typical situation penses or furnishes the facilities (such such a paid idle holiday or paid vacation is one In which an employee is entitled, as free lunches or free housing), the foregoes his holiday or Vacation and per. by contract to 8 hours' pay at his rate amount paid to the employee (or the forms work for the employer on the of $1 an hour for certain named holidays reasonable cost to the employer where holiday or during the vacation period. when no work is performed. If, how- facilities are furnished) enters Into the If, under the terms Of his employment he ever, he is required to work on such days, regular rate of pay." is entitled to a certain sum as holiday or he does not receive his idle holiday pay. (c) Pay for certain idle hours. Pay- vacation pay, whether he works or not. Instead he receives a premium rate of ments which are made for occasional and receives pay at his customary rate $1.50 (time and one-half) for each hour periods when the employee is not at (or higher) in addition for each hour worked on the holiday. If he worked 9 work due to vacation, holiday, illness, that he works on the holiday or vacation hours on the holiday and a total of 50 failure of the employer to provide suill- day, the certain sum allocable to holiday hours for the week, he would be owed, dent work, or other similar cause, where or vacation -pay is still to be excluded under his contract, $13.50 (9X$1.50) the payments are in amounts approxi- from the regular rate. It is still riot for the holiday work and $41 for the mately equivalent to the employee's nor- regarded as compensation for hours of other 41 hours worked in the week, a mal earnings for a similar period of time, work if he is otherwise compensated at total of $54.50. Under the statute are not made as compensation for his his customary rate (or at a higher rate) (which does not require premium pay for hours of employment. Therefore, such for his work on such days. Since it Is not a holiday) he is owed $55 for a workweek payments are excluded from the regular compensation for work it may not be of 50 hours at a rate of $1 an hour. Since rate of pay and, for the same reason, no credited toward overtime compensation the holiday premium qualifies as an part of such payments may be credited due under the act. Two examples may overtime premium under section 7 (d) toward overtime compensation due un- serve to illustrate this principle: (6) st the employer may credit it toward der the act. (1) An employee whose rate of pay is statutory overtime compensation due This section deals with the type' of $1 an hour and who usually works a 6-day and need pay the employee only the absences which are infrequent or spo- 48-hour week is entitled. under his em- additional sum of 50 cents to meet tale radic or unpredictable. It has no rela- ployment contract, to a week's paid vaca- statutory requirements. tion to regular "absences" such as lunch tion in the amount of his usual straight- If all other conditions remained the periods nor to regularly scheduled days time earnings—$48. He foregoes his same but the contract called for the pay- of rest. Sundays may not be workdays vacation and works 50 hours in the week ment of $2 (double time) for each hour in a particular plant, but this does not in question. He is owed $50 as his total worked on the holiday, the employee make them either "holidays" or "vaca- straight-time earnings for the week, and would receive, under his contract, $18 tions," or days on which the employee is $48 in addition as his vacation pay. (9x$2.00) for the holiday work in addi- absent because of the failure of the em- Under the statute he is owed an addition to $41 for the other 41 hours worked, ployer to provide sufficient work. The tional $5 as overti .e premium (addi- a total of $59. Since this holiday pre- term holiday is read in its ordinary usage tional half-time) for the 10 hours in mium is an overtime premium under sec- to refer to those days customarily ob- excess of 40. His rate of $1 per hour has tion 7 (d) (6), the employer may credit served in the community in celebration not been increased by virtue of the pay- of some historical or religious occasion; ment of $48 vacation pay, but no part of El On the requirements of the act, see Part 777 as to minimum wage: § 778.2 (b) of this "'See also § 778.3 (d) end the footnote ",See § 778.9 for discussion of reduction in chapter as to overtime pay. thereto. work schedule. " See § 778.5 (c) of this bulletin.

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Saturday, February 4, 1950 FEDERAL REGISTER 631

it toward statutory overtime compensa- work on any day will receive a minimum cannot be credited toward overtime tion due. Since the total paid exceeds of 4 hours' work or pay. The employee compensation due under the act, The the statutory requirements, no additional thus receives not only the $2 earned In regular rate of the employee, therefore, compensation is due under the act. In the 2 hours of work on Monday but an remains $1.00, and he has received an distinguishing this situation from that in extra 2 hours' "show-up" pay, or $2 by overtime premium of 50 cents an hour example (2) above, it should be noted reason of this agreement. However, for 3 overtime hours of work. This sat- that the contract provisions in the two since this $2 in "show-up" pay is not isfies the requirements of section 7 of the situations are different and result in the regarded as compensation for hours act. The same would be true, of course, payment of different amounts. In ex- worked, the employee's regular rate re- if, in the foregoing example, the em- ample (2) the employee received a total mains $1 and the overtime requirements ployee was called back outside his sched- of $17 attributable to the holiday (8 of the act are satisfied if he receives, in uled hours for the 2-hour emergency Job hours' idle holiday pay at $1 an hour and addition to the $42 straight-time pay for on another night of the week or on Sat- $9 pay for 9 hours' work cn the holiday). 42 hours and the $2 "show-up" payment, urday or Sunday, instead of on Friday In the situation discussed in this para- the sum of $1 as extra compensation for night. graph the employee received $18 pay for the 2 hours of overtime work on (f ) Pay for non-productive hours tits-. the holiday—double time for 9 hours of Saturday. tinguished, Under the Fair Labor work, Thus, clearly, all of the pay in In the interest of simplicity and uni- Standards Act an employee must be com- this situation is paid for and directly formity, these principles will be applied pensated for all hours worked. As a related to the number of hours worked also with respect to typical minimum general rule the term "hours worked" on the holiday. "call-back" or "call-out" payments made will include (11 all time during which an (0) "Show-up" and "call-back" pay, .pursuant to employment agreements. employee is required to be on duty or to Under some employment agreements, Typically, such minimum payments con- be on the employer's premises or at an employee may be paid a minimum of sist of a specified number of hours' pay prescribed workplace and (2) all time a specified number of hours' pay at the at the applicable straight-time or over- during which an employee is suffered fir applicable straight-time or overtime rate time rates which an employee receives permitted to work whether or not he is on Infrequent and sporadic occasions on infrequent and sporndic occasions required to do so. Thus, working time is when, after reporting to work at his when, after his scheduled hours of work not limited to the hours spent in active scheduled starting time on a regular have ended and without prearrangement, productive labor. but includes time given workday or on another day on which ho he responds to a call from his employer by the employee to the employer even has been scheduled to work, he is not to perform extra work. though part of the time may be spent in provided with the expected amount of The application of these principles to idleness, Some of the hours spent by work, The amounts that may be paid "call-beck" payments may be Illustrated employees, under certain circumstances, under such an agreement over and above as follows: An employment agreement In such activities as waiting for work, what the employee would receive if paid provides a minimum 3 hours' pay at time remaining "on call", traveling on the at his customary rate only for the num- and one-half for any employee called employer's business or to and from work- ber of hours worked are paid to compen- back to work outside his scheduled hours. places, and in meal periods and rest sate the employee for the time wasted The employees covered by the agreement periods are regarded as'working time and by him in reporting for work and to normally work 8 hours each da y, Monday some are not." To the extent that these prevent undue loss of pay resulting from through Friday, inclusive, in a work- hours are regarded as working time, pay- the employer's failure to provide ex- week beginning on Monday, and are paid ment made as compensation for these pected work during regular hours. One overtime compensation at time and one- hours obviously cannot be characterized of the primary purposes of such an ar- half for all hours worked in excess of 8 "payments not for hours worked." rangement is to discourage employers in any day or 40 in any workweek. As- Such compensation is treated in the same from calling their men in to work for sume that an employee covered by this manner as compensation for any other only a fraction of a day when they might agreement and paid at the rate of $1 an working time and is, of course, included get full-time work elsewhere. Pay ar- hour works 1 hour overtime or a total of in the regular rate of pay. Where pay- rangements of this kind are commonly 9 hours on Monday, and works 8 hours ment is ostensibly made as compensation referred to as "show-up" or "reporting" each on Tuesday through Friday, infor such of these hours as are not repay. Under the principles and subject clusive. After he has gone home on Fri- garded as working time under the Fair to the conditions set forth in §§ 778.3 to day evening he is called back tel perform Labor Standards Act, the payment is 778.5, that portion of such payment an emergency job. His hours worked on nevertheless included in the regular rate which represents compensation at the the call total 2 hours and he receives 3 of pay unless it qualifies for exclusion applicable rates for the straight-time or hours' pay at time and one-half, or $4.50, from the regular rate under section '1 (d) overtime hours actually worked, if any, under the "call-back" provision, in addi- (2) as one of a type of "payments made during such period may be credited as tion to $40 for working his regular sched- for occasional periods when no wont is straight-time or overtime compensation, ule and $1.50 for the overtime worked on performed due to " • failure of as the case may be, in computing over; Monday evening. the employer to provide sufficient work, time compensation due under the act. In computing overtime compensation or other similar cause" as discussed in The amount by which the specified num- due this employee under the act, the•43 § 778.7 (c). For example, an employ- ber of hours' pay exceeds such compen- actual hours (not 44) are counted as ment contract may provide that em- sation for the hours actually worked is working time during the week. In addi- ployees who are assigned to take calls considered as a payment that is not made tion to $43 pay at the $1 rate for all 'for specific periods will receive a pay- for hours worked. As such, it may be these hours, he has received under the ment of $2 for each 8-hour period during excluded from the computation of the agreement a premium of 50 cents for the which they are "on call" in addition to employee's regular rate and cannot be one overtime hour on Monday and of $1 pay at their regular (or overtime) rate credited toward statutory overtime com- for the 2 hours of overtime work on the for hours actually spent in making calls. pensation due him. call, plus an extra sum of $1.50 paid by If the employees who are thus on call are To illustrate, assume that an em- reason of the provision for minimum not confined to their homes or to any ployee whose workweek begins on Mon- "call-back" pay. For purposes of the particular place, but may come and go as day and who is paid $1 an hour reports act, the extra premiums paid for actual they please, provided that they leave a for work on Monday according to sched- hours of overtime work on Monday and telephone number at which they may be ule and is sent home after being given on the Friday call (a total of $1.50) may reached, the hours spent "on call" are only 2 hours of work. He then works 8 be excluded as true overtime premiums hours each day on Tuesday through Sat- In computing his regular rate for the See Part 785 of this chapter which will week and may be credited toward over- replace interpretative Bulletin No. 13 as a urday, inclusive, making a total of 42 statement of the principles far determining hours for the week. The employment time compensation due under the act, hours worked under the Fair Labor Standards agreement covering the employees in the but the extra $1.50 received under the Act, as amended. For a discussion of travel plant, who normally work 8 hours a day, "Call-back" provision is not regarded as time in particular and preliminary and pest- Monday through Friday, provides that paid for hours worked; therefore. it may liminary activities In general as working time an employee reporting for scheduled be excluded from the regular rate, but it see Part 790 of this chapter. No. 24-3 50 (56 of 135) Case: 18-55682, 10/31/2018, ID: 11068173, DktEntry: 24-2, Page 52 of 124

632 RULES AND REGULATIONS not considered as hours worked. The same, it is the fact that it now takes him (ruction in total pay, the average hourly payment received by such employees for only 35 hours to earn $40, so that he earns rate is thereby increased as in paragraph such "on call" time is, therefore, not allo- his salary at the average rate of $1.14 per (b) of this section. If the reduction in cable to any specific hours of work, al- hour. His regular rate thus becomes work schedule is accompanied by a new though it is clearly paid'as compensation $1.14 per hour; it is no longer $1 an hour. agreement altering the mode of compen- for performing a duty involved in the Overtime, pay is due under the Act only sation from an hourly rate basis to a employee's Job. The payment must for hours worked in excess of 40, not 35, fixed salary for a variable workweek up therefore be included in the employee's but if the understanding of the parties to 40 hours, the results described in para- regular rate in the same manner as any is that the salary of $40 now covers 35 graph (c) of- this section follow. payment for services, such as an attend- hours of work and no more, the employee (e) Effect on salary covering more ance bonus, which is not related to any would be owed $1.14 per hour under his than 40 hours' pay. The same reasoning specific hours of work. employment contract for each hour applies to a salary covering straight time (g) "Other similar Payments"; gen- worked between 35 and 40. He would pay for a longer workweek. If an em- eral. The preceding paragraphs of this be owed time and one-half of $1.14 ployee was hired at a fixed salary of $55 section have enumerated and discussed ($1.71) per hour, under the statute, for for 55 hours of work, he was entitled to the basic types of payments which are each hour worked in excess of 40 in the statutory overtime for the t5 hours in excluded from the regular rate under sec- workweek. In weeks in which no over- excess of 40 at the rate of 50 cents per tion 7 (d) (2) because they are not made time is worked only the provisions of sec- hour (half time) in addition to his sal- as compensation for hours of work. tion 6 of the act, requiring the payment ary. If the workweek is later reduced to Since a variety of miscellaneous pay- of not less than 75 cents per hour, apply, 50 hours, with the understanding be- ments are paid by an employer to an em- so that the employee's right to receive tween the parties that the salary covers ployee under peculiar circumstances, It $1.14 per hour is enforceable only under all hours up to 55, his regular rate in was not considered feasible to attempt his contract. However, in overtime any week of 55 hours or less is deter- So list them.. It is clear that the clause weeks the Administrator has the duty to mined by dividing the salary by the num- was not intended to permit the exclusion insure the payment of time and one-half ber of hours worked to earn it in that front the regular rate of payments such as the employee's regular rate of pay for particular week, and additional half bonuses or the furnishing of facilities like hours in excess of 40 and overtime cannot time, at that rate, le due for each hour board and lodging which, though not di- be said to have been paid until all in excess of 40, In weeks of 55 hours rectly attributable to any particular straight time compensation duo the em- or more, his regular rate is $1 per hour. hours of work are, nevertheless, clearly ployee under the statute or his employ- If the understanding of the parties is understood to be compensation for iierV- ment contract has been paid, Thus if that the salary now covers a fixed work- ices. the employee works 41 hours in a par- week of 50 hours, his regular rate is OM A few examples may serve to illustrate ticular week, he is owed his salary for Per hour in all weeks, This assumes the type of payments intended to be ex- 35 hours—$40, 5 hours' pay at $1,14 per that when an employee works less than cluded as "other similar payments": hour for the 5 hours between 35 and 40- 50 hours in a particular week, deductions Sums paid to an employee for the $5,70, and one hour's pay at $1.71 for the . are made at the rate of $1.10 per hour rental of his truck or car. one hour in excess of 40-31,71, or a total for the hours riot worked. Loam or advances made by the em- Of $47.41 for the week. The reasoning does not, of course, ap- ployer to the employee. (a) Effect if salary is for variable ply to a situation in which the former The cost to the employer (if conven- workweek. The discussion in the prior earnings at both straight time and over- lences furnished to the employee such paragraph sets forth one result of re- time are paid to the employee for the re- as parking space, restrooms, lockers, on- ducing the workweek from 40 to 35 hours. duced workweek. Suppose an employee the-job medical care and recreational It is not either the necessary result or was hired at an hourly rate of $1 an hour facilities. the only possible result. As in all cases and regularly worked 50 hours, earning of employees hired on a salary basis, the $55 as his total straight time and over- § 778.8 Talent fees in the radio and regular rate depends in part on the time compensation, and the parties now television industry. Section 7 (d) (3) agreement of the parties as to what the agree to reduce the workweek to 46 hours provides for the exclusion from the reg- salary is intended to compensate. In without any reduction in take-home pay. ular rate of "talent fees (as such talent reducing the workweek to 35 hours the The parties in such a situation may agree fees are defined and delimited by regu- parties may agree to change the basis of to an increase in the hourly rate from lations of the Administrator) paid to the employment arrangement by pro- $1 per hour to $1.12 2/4 so that for a work- Performers, Including announcers, on viding that the salary which formerly week of 46 hours (the reduced schedule) radio and television programs." Regu- covered a fixed workweek of 40 hours now the employee's straight time an( over- lations defining "talent fees" have been covers a variable workweek up to 40 time earnings will be $55. The parties issued and published in the FEDERAL hours. If this is the new agreement, the cannot, however, agree that the em- Bunsen as Part 550 of this chapter. employee receives $40 for workweeks of ployee is to receive exactly $55 as total Payments which accord with this defini- varying lengths. such as 35, 36, 38, 40 compensation (including overtime pay) tion are excluded from the regular rate. hours. His rate thus varies from week to for a workweek varying, for example, up SPECIAL PROBLEMS week, but in weeks of 40 hours or over, it to 50 hours, unless he does so pursuant is $1. per hour (since the agreement of to contracts specifically permitted in sec- § 778.9 Reduction in workweek sched- the parties is that the salary covers up tion 7 (e) of the act, as discussed in ule with no change in pay—(a) General to 40 hours and no more) and his over- § 778.18. An employer cannot otherwise statement. Since the regular rate of Pay time rate, for hours in excess of 40, thus discharge his statutory obligation to pay is the average hourly rate at which an remains $1.50 per hour. Ouch a salary overtime compensation to an employee employee is actually employed, and since arrangement presumably contemplates who does not work the same fixed hours this rate is determined by dividing his that the salary will be paid in full for any each week by paying a fixed amount pur- 'total remuneration for employment (ex- porting to cover both straight time and cept statutory exclusions) for a given workweek of 40 hours or less. The employee would thus be entitled to his full overtime compensation for an "agreed” workweek by the total hours worked in number of hours. To permit such a that workweek for which such remun- salary if he worked only 25 or 30 hours. No deductions for hours not worked in practice without proper statutory safe- eration was paid, it necessarily follows guards would result in sanctioning the that if the schedule of hours is reduced short workweeks would be made.' circumvention of the provisions of the while the pay remains the same, the (d) Effect on hourly rate employees. act which require that an employee who regular rate has been increased. A similar situation is presented where works more than 40 hours in any work- (b) Effect on salary for fixed work- employees haw been hired at an hourly week be compensated, in accordance week. If an employee was hired at a rate of pay and have customarily worked with express congressional intent, at salary of $40 for a fixed workweek of 40 a fixed workweek. If the workweek is time and one-half his regular rate of pay . hours, his regular rate at the time of reduced from 40 to 35 hours without re- for the burden of working long hours. hiring was $1 per hour. If his work- In arrangements of this type, no addi- week is later reduced to a fixed workweek „ For a discussion of the effect of deduc- tional financial pressure woad fall upon of 35 hours while his salary remains the tions on the regular rate see § '178.12. the employer and no additional compen-

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Saturday, February 4, 1950 FEDERAL REGISTER 633 sation would be due to the employee provided that (1) the plan is bona fide Sunday to 7 a. m. Monday will constitute under such a plan until the workweek and there is no effort made to evade the both the last hours of the old workweek exceeded 50 hours. overtime requirements of the act; (2) and the first hours of the newly estab- (f) Temporary or sporadic reduction there is a clear downward trend in the lished workweek. in schedule. The problem of reduction duration of the workweek throughout the If the hours which tall wii :on both In the workweek is somewhat different period of the plan even though fluctua- workweeks arc hours in .which the em- where a temporary reduction is involved. tions from week to week may not be ployee does no work, his statutory com- Reductions for the period of a dead or constantly downward; and (3) the var- pensation for each workweek is, of slow season follow the rules announced ious rates are operative for substantial course, determinable in precisely the above. However, reduction on a more periods under the plan and do not vary same manner as it would be if no over- temporary or sporadic basis presents a from week to week in accordance with lap existed. If. on the other hand, some different problem. It is obvious that as the number of hours which any particu- of the employee's working time falls a matter of simple arithmetic an em- lar employee or group happens to work. within hours which are included in both ployer might adopt a series of different (h) Alternating workweeks of differ- workweeks, the Wage and Hour Division, rates for the same work, varying in- ent fixed lengths. In some cases an em- as an enforcement policy, will assume versely with the number of overtime ployee is hired on a salary basis with th a t t he overtime requirements of sec- hours worked in such a way that the the understanding that his weekly sal- tion 7 of thn act have been satisfied if employee would earn no more than his ary is intended to cover the fixed sched- computation is made as follows: straight time rate no matter how many ule of hours (and no more) and that this (1) Assume first that the overlapping hours he worked. If he set the rate at fixed schedule provides for alternating hours are to be counted as hours worked $1 per hour for all workweeks in which workweeks of different fixed lengths. only in the "old" workweek and not in the employee worked 40 hours or less, For example, many offices operate with the new ; compute straight time and 98'/2 cents per hour for workweeks of half staff on Saturdays and, in conse- overtime compensation due for each of 41 hours, 05 cents for workweeks of 42 quence, employees are hired at a fixed the two workweeks on this basis and hours, 01 cents for workweeks of 50 hours salary covering a fixed working schedule total the two sutras. and so on, the employee would always of 7 hours a day Monday through Friday (2) Assume now that ill° overlapping receive (for straight time and overtime and 5 hours on alternate Saturdays. The hours are to be counted as hours worked at these "rates") precisely $1 an hour parties agree that extra compensation is only in the new workweek and not in and no more regardless of the number to be paid for all hours worked In excess the old, and complete the total email-Mtn- of overtime hours worked, This is an of the schedule in either week, at the tion accordingly. obvious bookkeeping device designed to base rate for hours between 35 and 40 in (3) Compare the two totals and pay avoid the payment of overtime compen- the short week and at time and one-half the higher, sation and is not in accord with the law. such rate for hours in excess of 40 in all Suppose that, in the example given, The regular rate of pay of this employee weeks. Such an arrangement results in the employee worked Ii hours on Sunday, for overtime purposes is, obviously, the the employee's working at two different March 12, 1950, His workweek com- rate he earns in the normal non-over- rates of pay—one thirty-fifth of the sal- menced at 7 a. m. on Monday, March 6th time week—in this case, $1 per hour. ary in short workweeks and one-fortieth and he worked 40 hours March 0th The situation is different in degree but of the salary in the longer weeks. If the through 11th so that for that week he not in principle where employees who provisions of such a contract are fol- would be owed straight time and over- have been hired at a bona fide 80-cent lowed, if the non-overtime hours are time compensation for 45 hours. The rate usually working 50 hours and tak- compensated in full at the applicable proposal is to commence the workweek at ing home $44 as total straight time and regular rate in each week and overtime 7 a. m. on March 12th. In the week from overtime for the week are, during oc- compensation is properly computed for Sunday, March 12 through Saturday, casional weeks, cut back to 42 hours. If hours in excess of 40 at time and one- March 18 the employee worked a natal of the employer raises their rate to $1 for half the rate applicable in the particular 40 hours, includ.ng the 5 hours worked on such weeks so that their total compensa- workweek, the overtime requirements of Sunday. It is obvious that the aliena- tion is $43 for a 42-hour week the ques- the Fair Labor Standards Act will 5e met. tion of the Sunday hours to the old work- tion may properly be asked, when they Mile this situation bears some resem- week will result in higher total compen- return to the 50-hour week, the 80-cent blance to the.one discussed in paragraph sation to the employee for the 13-day rate and the gross pay of $44, whether (f) of this section there is this significant period. Ile should, therefore, be paid (if the 80-cent rate is really their regular difference: the arrangement is perma- his rate were $1 an hour) $47.50 for the rate. Are they putting in 8 additional nent. the length of the respective -work- period from March 6th through March hours of work for that extra dollar or weeks and the rates for such weeks are 12th and $35 for the period from March is their "regular" rate really now $1 an fixed on a permanent-schedule basis far 13th through March 18th. hour since this is what they earn in the in advance and are therefore not sub- The fact that this method of compen- short workweek? It seems clear that ject to the control of the employer and sation is permissible under the Fair Labor where different rates are paid from week do not vary with the fluctuations in busi- Standards Act will hot alter any obliga- to week for the same work and where the ness. In an arrangement of this kind, tion the employer may have under his difference is justified by no factor other if the employer required the employee to employment contract to pay a greater than the number of hours worked by the work on Saturday in a week in which he amount of overtime compensation for the individual employee—the longer he was scheduled for work only on the Mon- period in question. works the lower the rate—the device is day through Friday schedule, he would be paid at his regular rate for all the 1 778.11 Retroactive pay increases. evasive and the rate actually paid in the Where a retroactive pay increase is shorter or non-overtime week Is his regu- Saturday hours in addition to his salary. awarded to employees as a result of col- lar rate for overtime purposes in all § 778.10 Change in the beginning of lective bargaining or otherwise, it oper- weeks.. the workweek. As stated in 1 778.2 (c), ates to increase the regular rate of pay Plan for gradual permanent (g) the beginning of the workweek may be of the employee for the period of its in schedule. In some cases, reduction changed for an employee or for a group retroactivity. Thus, YE an employee is pursuant to a definite plan for the per- of employees if the change is intended awarded a retroactive Increase of 10 manent reduction of the normal sched- to be permanent and is not designed to uled workweek from say, 48 hours to 40 cents per hour, he is owed, under the evade the overtime requirements of the Fair Labor Standards Act, a retroactive hours, an agreement is entered into with Act. A change in the workweek neces- increase of 15 cents for each overtime a view to lessening the shock caused by sarily results. in a situation in whicn one the expected reduction in take-home or more hours or clays fall in both the hour he has worked during the period, no wages. The agreement may provide, for "old" workweek as previously constituted matter what the agreement of the parties a rising scale of rates as the workweek and the "new" workweek. Thus, if the may be. A retroactive pay increase in is gradually reduced. The varying rates workweek ln 1-he plant commenced at the form of a lump sum for a particular established by such agreement will be 7 a, m. on Monday and it is now proposed period must be prorated back over the recognized as bona fide in the weeks in to begin the workweek at 7 a. m. on hours of the period to which it is allocable which they are respectively operative Sunday, the hours worked from 7 a. m. to determine the resultant increases in • 52 (58 of 135) Case: 18-55682, 10/31/2018, ID: 11068173, DktEntry: 24-2, Page 54 of 124

634 RULES AND REGULATIONS

the regular rate, in precisely the same (3) above. Thus where disciplinary de- relationship between the contest activi- manner as a lump-sum bonus." ductions are made from a pieceworker's ties and the usual work of the employee, earnings, the earnings at Piece rates whether the competition involves work * 778.12 How deductions affect the must be totaled and divided by the total usually performed by other employees regular. rate, The word "deduction" is hours worked to cistern the regular for employers, whether an employee is often loosely used to cover reductions in rate before the deduction is applied. It specifically urged to participate or led to pay resulting from several causes: should be noted that although an em- believe that he will not merit promotion (1) Deductions to cover the cost to the ployer may penalize an employee for or advancement unless he participates. employer of furnishing board, lodging lateness by deducting a half hour's By way of example, a prize paid for and other facilities, within the meaning straight time pay from his wa ges, for work performed in obtaining new busi- of section 3 (n) of the act. example, for each half hour, or fraction ness for an employer would be regarded Deductions for other items such as (2) thereof, of his lateness, the employer as remuneration for employment. Al- tools and uniforms which are not re- must still count as hours worked all the though the (laths of the employees who garded as "facilities." time actually worked by the employee participate in the contest may not nor- Deductions authorized by the em- (3) in determining the amount of overtime mally encompass this type of work, it is ployee (such as union dues) or required compensation due for the workweek. In work of a kind normally performed by bylaw (such as taxes and garnishments). no event may such deductions (or dedue- salesmen for their employers." On the . (4) Reductions in a fixed salary paid tions of type (2) ) reduce the earnings other hand, a prize or.bonus paid to an for a fixed workweek in weeks in which below an average of 750 for the first 40 employee when a sale is made by the the employee fails to work the full hours nor put into any part of the over- company's sales representative to a per- schedule. time compensation due the employee." son whom he recommended as a good (5) Deductions for disciplinar y sales prospect would not be regarded as '178.13 Prizes as bonuses—(a) Geni- reasons. compensation for services if in fact the It may be briefly stated that the reg- eral statement. All compensation (ex- prize-winner performed no work in se- War rate of pay of an employee whose cept statutory exclusions) paid by or on curing the name of the sales prospect earnings are subject to deductions of behalf of an employer to an employee as and spent no time on the matter for the types (1), (2), and (3) is determined by remuneration for employment must be company in any way. g included in the regular rate, whether dividin his total compensation (except (c) Suf/Oestion system awards, In this statutory exclusions) before deductions paid in the form of cash or otherwise, connection, the question has been raised by the total hours worked in the work- Prizes are therefore included in the reg- whether awards made to employees for week." ular rate If they are paid to an employee suggestions submitted under a sugges- The reductions In pay described in as remuneration for employment. If tion system plan aro to be regarded as category (4) are not properly speaking, therefore it is asserted that a particular part of the regular rate. There is no "deductions" at ail. If an employee is prize is not to be Included in the regular hard and fast rule on this point as the compensated at a fixed salary for a rate, it must be shown either that the term "suggestion system" has been, used fixed workweek and if this salary is re- prize was not paid to the employee for to describe a variety of widely differing duced by the amount of the average employment, or that it is not a thing of plans, It may be generally stated, how- hourly earnings for each hour lost by Value which is part of wages. ever, that prizes paid pursuant to a bona the employee in a short workweek, the (b) Contests and awards, Where the fide suggestion system plan may be ex- employee is, for ail practical purposes, prize is awarded for the quality, quantity cluded from the regular rate at least in employed at an hourly rate of pay. This or efficiency of work done by the em- situations where it is the fact that: hourly rate is the quotient of the fixed ployee during his customary working (1) The amount of the prize has no salary divided by the fixed number of hours at his normal assigned tasks relation to the earnings of the employee hours it is intended to compensate. If (whether on the employer's premises or at his job but is rather geared to the an employee is hired at a fixed salary of elsewhere) it is obviously paid as addi- value to the company of the suggestion $40 for a 40-hour week. his hourly rate tional remuneration for employment. which is submitted; and Thus prizes paid for cooperation, cour- is $1. When he works only 30 hours he (2) The prize represents a bona fide is therefore entitled to $30. The em- tesy, efficiency, highest production, best award for a suggestion which is the re- • ployer makes a "deduction" of $4 from attendance, best quality of work, great- suit of additional effort or ingenuity un- his salary to achieve this result. The est number of overtime hours worked, related to and outside the scope of the rate is not altered. etc., are part of the regular rate of pay. usual and customary duties of any em- If the prize is paid in cash, the amount When an employee is paid a fixed sal- ployee of the class eli gible to participate ary for a workweek of variable hours (or paid must be allocated over the period and the prize is not used as a substitute a guarantee of pay under the provisions during which it was earned to determine for wages; and of section 7 (e) of the act ") , the un- the resultant increase in the average (3) No employee is required or spe- derstanding is that the salary is due the hourly rate for each week of the period." cifically urged to participate in the sug- employee in short workweeks as well as If the prize is merchandise, the cost to gestion system plan or led to believe that in longer ones and "deductions" of this the employer is the sum which must be he will not merit promotion or advance- type are not made. Therefore, in cases allocated. Where the prize is either ment (or retention of his existing job) where the understanding of the parties cash or merchandise, with the choice left unless he submits suggestions; and Is not clearly shown as to whether a to the employee, the amount to be allo- (4) The invitation to employee to sub- fixed salary is cated is the amount (or the cost) of the intended to cover a fixed mit suggestions is general in nature and or a variable workweek, the practice of actual prize he accepts. no specific assignment is outlined to making "deductions" from the salary for Where the prize is awarded for activi• employees (either as individuals or as a hours not worked in short weeks will be ties outside the customary working hours group) to work on or develop; and .considered strong, if not conclusive, evi- of the employee, beyond the scope of his (5) There is no time limit during dence that the salary covers a fixed customary duties or away from the em- which suggestions must be submitted; workweek. ployer's premises, the question of and Where deductions are made for dis- whether the compensation is remunera- (6) The employer has, prior to the ciplinary reasons (category (5) ), the tion for employment will depend on such submission of the suggestion by an em- regular rate of an employee is computed factors as the amount of time, if any. ployee, no notice or knowledge of the before deductioos are made, as in the spent by the employee in competing, the case of deductions of types (1), (2), and "The time spent by the employee in com- IT For a full discussion of the limits placed peting for such a prize (whether successfully "For a discussion of the method of allo- on such deductions, see 55 777,11 and 777.12 of or not) is working time and must be counted cating bonuses to the hours of the period this chapter. The principles set forth with as such in determining overtime compensa- during which they were earned see 5 778.6 (b). relation to deductions have no application to tion due under the net. This subject will "For a full discussion of deductions on situations involving refusal or failure to pay be more fully dieussed in Part 785 of this categories (1), (2), and (3), see 55 777.11 to the full amount of wages due. See, ibid., chapter, which will replace Intarpretailve 777.15 of this chapter. 777.12; also § 778.16. Bulletin No. 13 as a statement of the prin- "Discussed in section 778.15 of this bul- "For the method of allocation, see ciples for determining hours worked under letin. 778.6 (b). the Fair Labor Standards Act. 53 (59 of 135) Case: 18-55682, 10/31/2018, ID: 11068173, DktEntry: 24-2, Page 55 of 124

Saturday, February 4, 1950 FEDERAL REGISTER 635

fact that an employee is working on the number of hours worked In excess of 40 vided by these premium rates is $3.50. preparation of a suggestion under cir- in the workweek could merely label as The sum of $3.50 should be subtracted cumstances indicating that the company overtime pay a fixed portion of such from the total of $58.50 paid to the em- approved the task and the schedule of salary sufficient to take care of compen- ployee. No part of the $9 paid for the work undertaken by the employee. sation for the maximum number of hours special work performed on Tuesday that would be worked. The Congres- qualifies for exclusion. The remaining § 778.14 Lump sum attributed to sional purpose to effectuate a maximum $55 must thus be divided by 48 hours to overtime. Section 7 of the act requires the payment of overtime compensation hours standard by placing a penalty upon determine the regular rate-41.146 per the performance of excessive overtime hour. The employee is owed one-half for hours worked in excess of 40 at a rate not less than one and one-half work would thus be defeated. For this this rate for each of 8 overtime hours times the regular rate. The overtime reason, where extra compensation is paid worked—$4.58. The extra compensa- in the form of a lump sum for work per- tion in the amount of $3.50 paid pur- rate is a rate per hour. Where employees are paid on some ba- formed in overtime hours, it must be in- suant to premium rates which qualify as sis other than an hourly rate, the regular cluded in the regular rate and may not overtime premiums may be credited be credited against statutory overtime toward the $4.58 owed. No part of the hourly rate is derived by dividing the total compensation (except statutory ex- compensation due. $9 premium may be so credited. The clusions) by the total hours of work for The same reasoning applies where em- employer must pay the employee an ad- which the payment is made. To qualify ployees are paid a flat rate for a special ditional $1.08 as statutory overtime—a as an overtime premium under section Job performed during overtime hours, total of $59.58 for the week. without regard to the time actually con- 7 (d) (5), (0) or (7), however, the extra § 778.15 "Task" basis of payment. compensation must be paid pursuant to sumed in the performance." The total Under some employment agreements. amount paid must be included in the a premium rate which is a rate per employees are paid according to n Job or regular rate; no part of the amount may hour." To qualify under section 7 (d) task rate without regard to the number be credited toward statutory overtime (5) this rate must be greater than the of hours consumed in completing the compensation dde. regular rate, either a fixed amount per task. Such agreements take various It may be helpful to give a specific ex- hour or a multiple of the rate, such as ample illustrating the results of paying forms but the two most usual forms are time and one-third, To qualify under these : an employee on the basis under discus- section 7 (d) (0) or (7) the rate may (a) It is determined (somettn)es on sion. not be less than time and one-half the tho basis of a time study) that an em- An employment agreement calls for the bone. fide rate established in good faith ployee (or group) should complete a payment of $1 per hour for work during for like work performed during non- Particular task In 8 hours. Upon the hours estabilNheci In good faith as overtime hours. It may not be less than the completion of the task the employee In the basic workday or workweek; it pro- time and one-half but it may be more. credited with 8 "hours" of work though vides for the payment of $1.50 per hour It may be a standard multiple greater In fact he may have worked more or less for work during hours outside the basic than one and one-half (for example, than 0 hours to complete the task. At workday or workweek. It further pro- double time) ; or it may be a Shed sum the end of the week the employee Le paid vides that employees doing a special task of money per hour which is, as an arith- at an established hourly rate for the first outside the basic workday or workweek metical fact, at least time and one-half 40 of the "hours" so credited and at time shall receive 0 hours' pay at the rate of the eegular rate (for example, if the and one-half such rate for the "hours" (a total payment of $9) regular rate is $2 per hour, the over- $1.50 per hour so credited In excess of 40. The number regardless of inc time actually consumed time rate way not be less than $3 but of "hours" credited to the employee bears It may be set at a higher arbitrary figure In performance. no necessary relationship to the number Suppose an employee works the follow- such as $3.20 per hour). of hours actually worked. It may be ing schedule. (The hours marked by an greater or less. "Overtime" may be pay- Where an employee works a regular asterisk were spent in the performance fixed number of each week, it is, able in some cases after 20 hours of hours of the special work.) of course, proper to pay him a fixed sum, work; in others only after 50 hours or for his overtime work, determined by any other number of hours. emultiplying has overtime rate by the NI T IV TFSEI (b) A similar task is set up and 8 number of overtime hours regularly hours' pay at the established rate is cred- Worked. However, a premium in the Routs wi/bin baslowork• ited for the completion of the task in 8 day R R 7 8 8 0 0 hours or less. If the employee fails to form of a lump sum which is paid for Pay under contract. . 55 $5 $7.00 es es 0 0 work performed during overtime hours flours outside baste complete the task in 8 hours he is paid workday ______2 2 1 0 0 4 0 at the established rate for each of the without regard to the number of over- Pay under contract 5.1 39 51.50 0 0 SO 0 time hours worked does not qualify as first 8 hours he actually worked. For an overtime premium even though the work in excess of 8 hours or after the amount of money may be equal to or To determine the regular rate, the total task is completed (whichever occurs greater than the sum owed on a per-hour compensation (except statutory exclu- first) he is paid time and one-half the basis. For example, an agreement that sions) must be divided by the total num- established rate for each hour worked. Provides for the payment of a flat sum ber of hours worked. The only sums to He is paid weekly overtime compensa- of $15 to employees who work on Sunday be excluded in this situation are the tion for hours in excess of 40 actual or does not provide a premium which will extra premiums provided by a premium "task" hours (or combination thereof) for which he received pay at the estab- qualify as an overtime premium, even rate (a rate per hour) for work outside though the employee's straight-time rate the basic workday and workweek, which lished rate. "Overtime" pay under this plan may be due after 20 hours of work. is $1 an hour and the employee always 7 (d) qualify for exclusion under section 25 or any other number up to 40. works less than 10 hours on Sunday. (7) of the act!' The S3 paid on Mon- Likewise, where an agreement provides These employees are in actual fact day, the 51.50 paid on Wednesday and compensated on a daily rate of pay basis. for the payment for work on Sunday of the $6 paid on Saturday are paid pur- either the flat sum of $15 or time end In plans of the first type, the established suant to rates which qualify as premium one-half the employee's regular rate for hourly rate never controls the compen- all hours worked on Sunday, whichever rates under section 7 (d) (7) of the act. sation which any employee actually receives. Therefore the established rate is treater, the $15 guaranteed payment The total extra compensation (over the straight-time pay for these hours) pro- cannot be his regular rate. In plans of is not an overtime premium. The reason the second type the rate is operative only for this is clear. If the rule were other- " This situation Is to be distinguished from for the slower employees who exceed the wise, an employer desiring to pay art "show-up" and "call-back" pay situations time allotted to complete the task; for employee a fixed salary regardless of the discussed In § 778.7 (e). ft is also to be dis- them it operates in a manner similar to tinguished from payment nt time and one- a minimum hourly guarantee for piece half the applicable rote to pieceworkers :or "Sections 7 (e) and 7 (f) of the act pro- workers." On such days as it is opera- vide for special exceptions from this rule. work performed during overtime hours, us These are discussed In §§ 778.18, 778,19 and discussed In 1 77819. 778.20. As discussed in 778.5 (d). " See § 778 3 (13 ) exomple. (2). 54 (60 of 135) Case: 18-55682, 10/31/2018, ID: 11068173, DktEntry: 24-2, Page 56 of 124

636 RULES AND REGULATIONS tive it is a genuine rate; at other times termining thanumber of hours for which the employee is owed Compensation at it is not. overtime compensation is due, all hours his regular rate for all of the first 40 Since the premium rates (at time and worked by an. employee for an employer hours and at time and one-half this rate one-half the established hourly rate) are in a particular workweek must be for all hours in excess of 40. In the ab- Payable under both plans for hours counted." Overtime compensation, at sence of any a greement setting a differ- worked within the basic or normal work- time and one-half the regular rate of pay, ent rate for nonproductive hours, the day (if one is established) and without must be paid for each hour worked in ex- employee would be owed compensation regard to whether the hours are or are cess of 40. Overtime compensation can- at the regular hourly rate set for pro- not in excess of 8 per day or 40 per week, not be said to have been paid to an em- ductive work for all hours up to 40 and they cannot qualify as overtime premi- ployee unless all the straight-time com- at time and one-half that rate for hours ums under section 7 (d) (5), (6) or (7) pensation due him under his contract in excess of 40. of the act. They must therefore be in- (express or implied) or under any appli- The situation is to be distinguished cluded in the regular rate and no part cable statue has been paid. from one in which such nonproductive of them may be credited against statu- While it is permissible for an employer hours are properly counted as working tory overtime compensation due. Under and an employee to agree upon different time but no special hourly rate is as- plans of the second type, however, where base rates of pay for different types of signed to such hours because it is under- the pay of an employee on a given day work, it has already been pointed out stood by the parties that the other Is actually controlled by the established that where a rate has been agreed upon compensation received by the employee hourly rate (because he fails to complete as applicable to a particular type of work is intended to cover pay for such hours. the task in the 8-hour period) and he is the parties cannot lawfully agree that the For example, while it is not proper for paid at time and one-half the estab- rate for that work shall be lower merely an employer to agree with his piecework- lished rate for hours•in excess of 8 hours because the work is performed during ers that the hours spent in down-time actually worked, the premium rate paid overtime hours, or during a week in which (waiting for work) will not be paid for on that day will qualify as an overtime overtime is worked."' Since a lower rate or win be neither paid for nor counted. premium under section 7 (d) (5). cannot lawfully be set for overtime hours it is permissible for him to agree that the An example of the operation of a plan it Is obvious that the parties cannot law- pay the employees will earn at piece of the second type may serve to illustrate fully agree that the working time will not rates is intended to compensate them for the effects of payment on a task basis. be paid for at all. An agreement that all hours worked, the productive as well The employment agreement estab- only the first 8 hours of work on any days as the nonproductive hours. If this is lishes a basic hourly rate of $1 per hour. or only the hours worked between cer- the agreement of the parties, the regular provides for the payment of $1ii0 per tain fixed hours of the da y or only the rate of the pieceworker will be the rate hour for overtime work (in excess of the first 40 hours of any week ,will be counted determined by dividing the total piece- as working time will clearly fail of its basic workday or workweek) and defines work earnings by the total hours worked the basic workday as 8 hours, and the evasive purpose. An announcement by the employer that no overtime work will (both productive and nonproductive) in basic workweek as 40 hours, Monday the workweek, through Friday, It further provides be permitted, or that overtime work will Extra compensation (ono-half the rate that the assembling of a machine con- not be compensated unless authorized in stitutes a day's work. An employee who advance, will not impair the employee's as so determined) would, of course, be completes the assembling job in less right to compensation for work which he due for each hour worked in excess of 40 than 8 hours will be paid 8 hours' pay at Is actually suffered or permitted to per- in the workweek, form. the established rate of $1 per hour and 778,17 Effect of paying for but not • An agreement not to compensate em- will receive pay at the "overtime" rate counting certain hours. In some con- for hours worked after the completion ployees for certain non-overtime hours tracts provision is made for payment for of the task. stands on no better footing since it would Suppose an employee works the fol- have the same effect of diminishing the certain hours, which constitute working lowing hours in a particular week: employee's total overtime compensation, time Under the act, coupled with a pro- An agreement, for example, to pay an vision that these hours will not be employee $1 an hour for the first 35 counted as working time. Such a pro- ill T IN' T F 8 8 hours, nothing for the hours between 35 vision is a nullity. If the hours in ques- and 40 and $1.50 an hour for the hours Sours spent cc task__ 6 7 7 9 8$$ 6 0 tion are hours worked, they must be Day's pay under con. 78 in excess of 40 would not meet the over- counted as such in determining whether tract 2 $3 $8 $8.00 $8.00 $32 0 time*requirements of the act. The em- Additional hours 2 more than 40 hours have been worked in Additional poy under ployee would have to be paid $5 for the the workweek. If more than 40 hours $3 5 hours worked between 35 and 40 before contract $3 $1.50 $1.50 ...... have been worked, the employee must any sums ostensibly paid for overtime could be credited toward overtime com- be paid overtime compensation at time The employee has actually worked a ensation due under the act. and one-half his regular rate for all total of 48 hours and has received a total p Some agreements provide for payment overtime hours. of $6100 for the week. The only sums only for the hours spent in productive A provision that certain hours will be which can be excluded from this total work; the hours spent in waiting time. compensated only at straight-time rates before the regular rate is determined time spent in travel on the employer's is likewise invalid. If the hours are are the extra 50-cent payments for the behalf or similar nonproductive time are extra hour on Thursday and Friday actually hours worked in excess of 40, not compensable and in some cases are made because of work actually in excess extra half-time compensation will be due, of 8 hours. The other premium rates neither counted nor compensated. regardless of any agreement to the Payment pursuant to such an a were paid either without regard to gree- contrary. ment will not comply with the Fair Labor whether or not the hours they compen- In certain cases an agreement provides Standards Act; such nonproductive sated were in excess of a bona fide daily for compensation for hours spent in cer- working hours must be counted and paid or weekly standard or without regard to tain types of activities which would not for. The parties may a gree to compen- the number of overtime hours worked. be regarded as working time under the Only the sum of $1. is excluded from the sate nonproductive hours at a rate (at least the minimum) which act if no compensation were provided. total. The remaining $60 is divided by is lower than the rate applicable to productive work. Preliminary and postliminary activities, 48 hours to determine the regular rate— time spent in travel outside the hours of $1.25 per hour. One-half this rate is due In such a case, the regular rate is the the normal workday and time spent in as extra compensation for each of the 8 weighted average of the two rates." and eating meals between Workin g hours fall overtime hours—$5.00. The $1 paid for "As to what hours must be counted ns in this category. The agreement of tile excessive hours may be credited and the hours worked for an employer, see § 778.7 parties to provide conipetisal ion for such balance—$4.00—is owed in addition to (I) and the footnote thereto. hours implies an agreement to regard the $61 due under the contract. 45 See § 718.9. ig Discussed in $ 778.3 (e) . See also them as working time although they are 778.16 Effect of failure to count or § 778.19 (c) for the method of computing not otherwise reciri rcrl to be so rmirclecl pay for certain working hours. In de- overtime pay on the applicable rate. under the act. The a!,1'recirient of the 55 (61 of 135) Case: 18-55682, 10/31/2018, ID: 11068173, DktEntry: 24-2, Page 57 of 124

Saturday, February it, 7950 FEDERAL REGISTER 637

parties will be respected, if reasonable." the overtime requirements of the act. adjusters, newspaper reporters and pho- However, the compensation paid for such The provisions of section 7 (e) set forth tographers, propmen, script girls and hours will, in any eveht be regarded as the conditions under which, in the view others engaged in similar work in the Part of the regular rate of pay. of Congress, this may be done. Plans motion picture industry, fire fighters. § 778.18 Guaranteed compensation which do not meet these conditions were troubleshooters and the like, There are which includes overtime pay (sec. 7 not thought to provide sufficient advan- some employees in these groups whose (e))—(a) The statutory exception. Sec- tage to the employee to justify Congress hours of work are conditioned by factors 7 (e) of the act provides: in relieving employers of the overtime beyond the control of their employer or liability of section 7 (a)." No employer shall be deemed to have vio- themselves. However, the mere fact that lated subsection (a) by employing any em- Section 7 (e) is an exemption from an employee is engaged in one of the jobs ployee for a workweek In excess of forty hours the overtime provisions of the act. No just listed, for example, does not mean if such employee is employed pursuant to a employer will be exempt from the duty that his duties necessitate irregular bona fide individual contract, or pursuant to of computing overtime compensation for hours. It is always a question of fact an agreement made as a result of collective an employee under section 7 (a) unless whether the particular employee's duties bargaining by representatives of employees, the employee is paid pursuant to a plan do or do not necessitate irregular hours. if the duties of such employee necessitate which actually meets all the require- Many employees not listed her" may irregular hours of work, and the contract or ments of the exemption. These require- agreement (1) specifies a regular rate of pay qualify. Office employees whose duties of not less than the minimum hourly rate ments will be discussed separately in the compel them to work variable hours -provided in section 6 (a) and compensation ensuing paragraphs, could also be in this category. For ex- at not Ices than one and one-half times such (b) What types of employees are af- ample, the confidential secretary of a rate for all hours worked In excess of forty fected. The type of employment agree- top executive whose hours of work ate in any workweek, and (2) provides a weekly ment permitted under section 7 (e) can irregular and unpredictable might also guaranty of pay for not more than sixty be made only with (or by his representa- be compelled by the nature of her duties hours based on the rates so specified. tives on behalf of) an employee Whose to work variable and unpredictable hours. This is the only provision in the act "duties • • • necessitate • irregular This would not ordinarily be true of a which allows an employer to pay the hours of work." It is clear that no con- stenographer or file clerk, nor would an same total compensation each week to tract made with an employee who works employee who only rarely or in emer- an employee who works overtime and a regularly scheduled workweek or whose gencies is called upon to work outside a whose hours of work vary from week to schedule involves alternating fixed work- regular schedule qualify for this exemp- week." Unless the pay arrangements In weeks will qualify under this subsection. tion. a particular situation meet the require- Even if an employee does in fact work (c) The nature of the contract. Pay- ments of section 7 (0) as sot forth, all a variable workweek, the question must ment must be mndo "pursuant to a bona the compensation received by the em- still be asked whether his duties necessi- fide individual contract or pm stunt to ployee under a guaranteed pay plan is tate irregular hours of work. The sub- an agreement made ns a result of collec- included in hib regular rate and no port seetion is not designed to apply in a tive bargaining by representatives of of such guaranteed pay may be credited situation where the hours of work vary employees," It cannot be a one-sided toward overtime compensation due un- from week to week at the discretion of affair determinable only by examination der the act, the employer or the employee, nor to a of the employer's books. The employee The exception is designed to provide situation where the employee works an must not only be aware of but must have a means whereby the employer of an knottier number of hours according to agreed to the method of compensation In employee whose duties necessitate ir- a predetermined schedule. The nature advance of performing the work. Col- regular hours of work and whose total of the employee's duties must be such lective bargaining a greements in general wages, if computed on an hourly rate that neither ho nor his employer can are formal a greements which have been basis would of necessity vary widely from either control or anticipate with any de- reduced to writing, but an individual em- week to week, may guarantee the Pay- gree of certainty the number of hours ployment contract may be either oral or ment Week-in, week-out of at least a he must work from week to week. Some written, While there is no requirement fixed amount based on his regular examples of the types of employees who in section 7 (e) that the agreement or hourly rate. Such a contract affords to may meet this criterion would be outside contract be in writing, it is certainly de- the employee the security of a regular buyers, on-call servicemen, insurance sirable to reduce the agreement to writ- weekly income and benefits the em- ing, since a contract of this character is ployer by enabling him to anticipate " This section of the act is based in part rather complicated and proof both of its and control in advance' at least some on the decision of the Supreme Court in existence and of its compliance with the part of his labor costs. However, a the eases of Walling v. A. H. Belo Company. various requirements of the section may guaranteed wa ge plan also provides a 316 IL 8. 624, and Walling v. IlallIburton Oil be difficult if it is not in written form. Welt Cementing Co., 325 II. S. 427, where means of limiting overtime costs so that the Court approved the payment of guar- Furthermore, the contract must be "bona wide leeway is provided for working em- anteed amounts to employees. In these fide". This implies that both the making ployees overtime without increasing the eases the Court found as a fact that the of the contract and the settlement of cost to the employer, which he would rates specified in the contracts were the its terms were done in good faith. otherwise incur under the act for work- regular rates of pay of the employees, bear- (d) The specified regular rate. The ing employees in excess of the statutory ing a reasonable relation to the amount contract must specify " a regular rate of maxim am of 4(f hours. Reco gnizing both guaranteed (as opposed to arbitrary or arti- pay of not less than the minimum hourly ficial rates) and that the hours of work rate provided in section 6 (a)." The the inherent advantages and disadvan- of the employees varied widely. In the Belo tages of guaranteed wage plans, when care the employees were newspaper reporters word "regular" describing the rate in viewed in this light. Congress sought to whose workweek fluctuated from 30 to over this provision is not to be treated as sur- strike a balance between them which 100 hours of work; in the Halliburton case plusage. To understand the nature of would, on the one hand, provide a fea- the employees were outside field service em- this requirement it Is important to con- sible method of guaranteeing pay to ployees of a company engaged in the business sider the past history of this type of employees who needed this protection of cementing, testing and otherwise servic- ing oil wells. In the Belo ease employees agreement in the courts. In both of the without, on the other hand, nullifying were guaranteed an amount covering com- two cases before it, the Supreme Court pensation for less than 60 hours but in found that the relationship between the "The Portal Act requires the counting of the Halliburton case employees had to work . hourly rate specified in the contract and preliminary and postliminary activities which in excess of 84 hours per week before any the amount guaranteed was such that are compensable. See Part 790 of this additional overtime pay (over and above the chapter. guaranteed amount) was due in any work- the employee in a substantial portion of " See §1 778.5 (f), 778.9, 778.14, and 778.15 week. In both cases the employees did the workweeks of the period examined for further discussion of this basic approach. actually exceed the number of hours for by the court worked sufficient hours to See also Part 781 of this chapter which dis- which pay was guaranteed on fairly fre- earn in excess of the guaranteed amount cusses guaranteed wage plans submitted un- quent occasions, so that the hourly rate der certain' types of collective bargaining ativilated in the contract in each case was and in those workweeks was paid at the agreements pursuant to section 7 (b) (1) o:ten operative and did actually control specified hourly rate for the first 40 hours and (2) of the act. the compensation received by the employees. and at time and one-half such rate for

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hours in excess of 40.50 The fact that as part of the employee's usual wages an employee whose duties necessitate ir- section 7 (e) requires that a contract, to will not invalidate a contract which regular hours of work which can reason- qualify an employee for exemption under otherwise qualifies under section 7 (e). ably be expected to range no hi gher than section 7 (e), must specify a "regular (e) Provision for overtime pay. The 50 hours would not qualify as a bona fide rate", indicates that this criterion of contract must provide for compensation contract under this section. The rate these two cases is still important. at not less than one and one-half times specified in such a contract would be The regular rate of pay specified in the specified regular rate for all how's wholly fictitious and therefore would not the contract may not be less than the worked in excess of 40 in the workweek. be a "regular rate" as discussed above. minimum rate. There is no require- All excessive hours, not merely those When the parties enter into a guaranteed ment, however, that the regular rate covered by the guarantee, must be com- Pay contract, therefore, they should de- specified be equal to the regular rate at pensated at time and one-half (or a termine, as far as possible, the range of which the employee was formerly em- higher multiple) of the specified regular hours the employee is likely to work. In ployed before.the contract was entered rate. A contract which guaranteed a deciding the amount of the guaranty they into. The specified regular rate may be weekly salary of $75, specified a rate of should not choose a guaranty of pay to any amount (at least 75 cents) which $1.50 per hour, and Provided that not less cover the maximum number of hours the parties agreed to and which can rea- than time and one-half such rate would which the employee will be likely to work amiably be expected to be operative in be paid only for all hours up 'to and in- at any time but should rather select a controlling the employee's compensation. cluding 46% hours would not qualify figure low enough so that it may reason- The rate specified in the contract must under this section. The contract must ably be expected that the rate will be also be a "regular" rate which is opera- provide for payment at time and one- operative in a significant number of tive in determining the total amount of half (or more) for all hours in exceas of workweeks. Contracts should be re- the employee's compensation. Suppose, 40 in any workweek. A contract may examined periodically (at least every six for example, that the compensation of provide a specific overtime rate greater months) to determine whether the em- an employee is normally made up in part than time and one-half the specified ployee's rate is a bona fide rate in that it by regular bonuses, commissions, or the rate for example, double line. If it does has in fact been operative in a signficant like. In the past he has been employed provide a specific overtime rate it must number of workweeks. If the reasonable the parties has not been • at an hourly rate' of $1,50 per hour in provide that such rate will be paid for all expectation of addition to which he has received a cost- hours worked in excess of 40. borne out, the contract should be of-living bonus of $5 a week and a 2 per- (f) The guaranty. The statute pro- amended accordingly. cent commission on sales which averaged vides that the guaranty must be a weekly The guaranty of pay must be "based on $10 per week. It is now proposed to em- guaranty. A guaranty of monthly, the rates so specified" in the contract, If ploy him under a guaranteed pay con- semi-monthly or bi-weekly pay (which the contract specifies a regular rate of tract which specifies a rate of $1.50 per would allow averaging wages over more $1.00, and an overtime rate of $1,50 and hour and guarantees $70 per week, but than one workweek) does not. qualify guarantees pay for 50 hours, the amount he will continue to receive his cost-of- under this subsection. Obviously guar- of the guaranty must be $55, if it is to be living bonus and commissions in addition antees for periods less than a workweek based on the rates so specified. A guar- to the guaranteed pay. Bonuses and do not qualify. Whatever sum is guaranty of $75 in such a situation would not. commissions of this type are, of course, anteed must be paid in full In all work- obviously, be based on the rates specified Included fn the "regular rate" as defined weeks, however short, in which the in the contract. in section 7 (d) . It is also apparent that employee performs any amount of work Moreover, a contract which provides the $1.50 rate specified In the contract for the employer. The amount of the a variety of different rates for shift dif- is not a "regular rate" under the re- guaranty may not be subject to proration ferentials, arduous or hazardous work, quirements of section 7 (e) since it never or deduction in short weeks. stand-by time, piece-rate incentive bo- controls or determines the total com- The contract must provide a guaranty nuses, commissions or the like In addition pensation he receives. For this reason, of pay. The amount must be specified. to a specified regular rate and a specified it is not possible to enter into a guaran- A mere guaranty to provide work for a overtime rate with a guaranty of Pay of, teed pay agreement of the type permitted particular number of hours does not say, $75 from all sources would not qual- under section 7 (e) with an employee qualify under this section. ify under this section, since the guaranty whose regular weekly earnings are made The pay guaranteed must be "for not of pay in such a case is not based on un in part by the payment of regular More than 60 hours based on the rates so the regular and overtime rates specified bonuses and commissions of this type. specified." in the contract. This is so because even in weeks in which The amount of weekly pay guaranteed (g) "Approval" of contracts under sec- the employee works sufficient hours to maY not exceed compensation due at the tion 7 (e). There is no requirement that exceed, at his hourly rate, the sum guar- specified regular rate for 90 hours and at a contract, to qualify under section 7 (e), anteed, his total compensation is con- the specified overtime rate for 20 addi- must be approved by the Administrator. trolled by the bonus and the amount of tional hours. Thus, if the specified re g The question of whether a contract commissions earned as well as by the -ular rate is $1 an hour, the weekly which purports to qualify an employee hourly rate. guaranty cannot be greater than $70. for exemption under section 7 (e) meets In order to qualify as a "regular rate" This does not mean that an employee the requirements is a matter for deter- under section 7 (e) the rate specified in employed pursuant to a guaranteed Pay mination by the courts. This determi- the contract together with the guarantee contract under this section may not nation will in all cases depend not merely must be the actual measure of the reg- work more than 60 hours in any week ; it on the wording of the contract but upon ular wages which the employee receives. means merely that pay in an amount the actual practice of the parties there- However, the payment of extra compen- sufficient to compensate for a greater under. It will turn on the question of sation, over and above -the guaranteed number of hours cannot be covered by the whether the duties of the employee in guaranteed pay. If he works in excess amount, by way of extra premiums for fact necessitate irregular hours, whether of 60 hours he must be paid, for each hour the rate specified in the contract is a work on holidays, or for extraordinarily worked in excess of 60, overtime compen- excessive work (such as for weals in ex- "regular rate"—that is, whether it was sation as provided in the contract, in ad- designed to be actually operative in de- cess of 16 consecutive hours in a day, or dition to the guaranteed amount. for work in excess of six consecutive days termining the employee's compensa- While the guaranteed pay may not tion—whether the contract was enterer of work), year-end.bonuses and similar cover more than 60 hours, the contract into in good faith, whether the guaranty payments which are not regularly paid may guarantee pay for a lesser number of pay is in fact based on the regular of hours. In order for a contract to and overtime rates specified in the con- "See footnote 49. As the Supreme Court qualify as a bona fide contract for an tract. While the Administrator does said In the Halliburton case: "In Belo itself, employee whose duties necessitate irreg- the specified basic hourly rate was held to ular hours of work, the number of hours have the authority to issue an advisory be the actual regular rate because, as to opinion as to whether or not a pay ar- Weeks in which employees worked more than for which pay Is guaranteed must bear a 54% hours, the specified race determined the reasonable relation to the number of rangement accords 'with the require- amount of compensation actually payable; hours the employee may be expected to ments of section 7 (e) he can do so only • • •?..„ work. A guaranty of pay for 60 hours to if lie has knowledge of these facts.

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Saturday, February 4, 1950 FEDERAL REGISTER C39

As a guide to employers, it may be law, and (it) extra overtime compensation The piece rate will be regarded as helpful to describe a fact situation in it properly computed and paid on other forms bona fide if it is the rate actually paid of additional pay required to be included lu for work performed during the nonover- which the making of a guaranteed salary computing the regular rate. contract would be appropriate and to time hours and if it is sufficient to yield set forth the terms of a contract which The purpose of these provisions is to at Last the minimum wage per hour. would comply, in the circumstances de- provide an exception from the require- If a pieceworker works at two or more scribed, with the provisions of section ment of computing overtime pay at time kinds of work for which different straight 7 (e). Example: An employee is em- and one-half the regular rate for hours time piece rates have been established. ployed as nn insurance claims adjuster; worked after 40 in the workweek and to and if by agreement he is paid at time because of the fact that he must visit allow, under specified conditions, a and one-half whichever straight time claimants and witnesses at their con- simpler method of computing overtime piece rate is applicable to the work per- venience, it is impossible for him or his pay for employees paid on the basis of formed during the overtime hours, such employer to control the hours which he a piece rate, or at a variety of hourly piece rate or rates must meet all the must work to perform his duties. During rates or piece rates, or a combination tests set forth in this paragraph and the past six months his hours of work thereof. This provision is not designed the general tests set forth in paragraph have varied from a low of 30 hours to a to exclude any group of employees from (a) of this section in order -to satisfy high of 58 hours. His average workweek the overtime benefits of the act. The the overtime requirements of the act for the period was 48 hours. In about intent of the provision is merely to sim- under section 7 (f). 80 percent of the workweeks he worked plify the method of computation while (c) Hourly workers employed at two less than 52 hours. It is expected that insuring the receipt by the affected em- rr more jobs. Under section 7 (f) (2) his hours of work will continue to follow ployees of substantially the same amonat emoinyee who performs two or more this pattern. The parties agree upon a of overtime compensation. different kinds of work, for which dif- regular rate of $1.30 per hour. In order First, in order to insure that the ferent straight time hourly rates are to provide for the employee the security method of computing overtime pay per- established, may agree with his employer of a regular weekly income the parties mitted in this section will not in any in advance of the performance of the further agree to enter into a contract circumstances be seized upon as a device work that he will be paid during overtime which provides a weekly guaranty of pay. for avoiding payment of the minimum hours time and one-half the rate A guaranty of pay for a workweek some- wage due for each hour, the requirement established for the type of work lie is where between 48 hours (his average Must first be met that the employee's performing during such hours. No ad- week) and 52 would be reasonable. In average hourly earnings for the work- ditional overtime pay will be due under the circumstances described, the follow- week (exclusive of overtime pay and of the act provided that the general re- ing contract would be appropriate. all other pay which is excluded from quirements set forth in paragraph (a) The X company hereby agrees to em- the regular rate) are not less than the of this section are met and: ploy John Doe as a claims adjuster at Minimum. This requirement insures (1.) The hourly rate upon which the a regular hourly rate of pay of $1.90 per that the employer cannot pay submini- overtime rate is based is a bona fide hour for the first 40 hours in an y Work- mum nonovertimo rates' with a view to rate; week and at the rate of $1,95 per hour offsetting part of the compensation (2) The overtime hours for which the for all hours in excess of 40 in any work- earned during the overtime hours against overtime rate is paid qualify vs over- week, with the guarantee that John Doe the minimum wage due for the workweek. time hours under section 7 (d) (5), (6) Will receive, in any week in which ho Second, in order to Insure that the or (7) ; and performs any work for the company, method of computing overtime pay per- (3) The number of overtime hours the sum of $71,50 as total compensa- mitted in this section will not be used for which the overtime rate is paid tion, for all work performed up to and to circumvent or avoid the payment of equals or exceeds the number of hours including 50 hours in such workweek. proper overtime compensation due on worked in excess of 40 in the workweek. The foregoing is merely an example other sums paid to employees, such as An hourly rate will be regarded as a and nothing herein is intended to imply bonuses which are part of the regular bona fide rate for a particular kind of that contracts which differ from the ex- rate, the section requires that extra over- work if it is equal to or greater than the ample will not meet the requirements of time compensation must be properly minimum and if it is the rate actually section 7 (e). computed and paid on other forms of paid for such work when performed dur- § 778,19 Computing overtime pay on additional pay required to be included ing the nonovertime hours. (d) the rate, applicable to the type of work in computing the regular rate. Combined hourly rates and piece performer/ in overtime hours (sec., 7 (I) (b) Pieceworkers. Under this section rates. Where an employee works at a (1) and (2)—(a) The statutory provi- an employee who is paid on the basis combination of hourly and piece rates, Sections 7 (f) (1) and (2) of the of a piece rate for the work performed the payment of time and one-half the sions. hourly or piece rate applicable to the act provide: during nonovertime hours, may agree with his employer in cdvanee of the per- type of work being performed during the No employer shall be deemed to have vio- formance of the work that he shall be overtime hours will meet the overtime lated subsection (a) by employing any em- requirements of the act if the provisions ployee for a workweek in excess of forty paid at the rate of time and one-half hours U. pursuant to an agreement or un- this piece rate for each piece produced concerning piece rates (as discussed in derstanding arrived at between the employer curing the overtime hours. No additional paragraph (b) of this section) and those and the employee before performanbe of the overtime pay will be due under the act concerning hourly rates (as discussed in work. the amount paid to the employee for provided that the general conditions dis- paragraph (c) of this section) are re- the number of hours worked by him In such cussed in paragraph (a) of this section spectively met. workweek in excess of forty hours (e) Offset hour for hour. Where over- In the case of an employee employed are met and: (1) (1) The piece rate is a bona fide rate; time rates are paid pursuant to statute or at piece rates, is computed at piece rates not contract for hours in excess of 8 in a day less than one and one-half times the bona (2) The overtime hours for which the fide piece rates applicable to the same work overtime rate is paid qualify as overtime or 40 in a week or in excess of the em- when performed during nonovertime hours; hours under section 7 (d) (5), (6), or ployees' normal working hours or regu- or (7) ; lar working hours (as under section 7 In the case of an employee perform- (d) (6) ), or pursuant to an applicable (2) (3) The number of overtime hours for ing two or more kinds of work for which employment agreement for work outside which time and one-half the piece rate different hourly or piece rates have been es- of the hours established in good faith by is paid equals or exceeds the number of tablished, is computed at rates not less than the agreement as the basic, normal or one and one-half times such bona fide rates hours worked in excess of 40 in the work- regular workday (not exceeding 8 hours) applicable to the same work when performed week; and during nonovertime hours; • • • or workweek (not exceeding 40 hours) (4) The compensation paid for the (under section 7 (d) (7) ), .the require- and if (1) the employee's average hourly overtime hours is at least equal to time ments of section 7 (f) (1) and 7 (f) (2) earnings for the workweek exclusive of pay- and one-half the minimum rate (S1.125 ments described in paragraphs (1) through will be met if the number of such hours (7) of subsection (d) are not less than the per hour) for the total number of hours during which overtime rates were paid minimum hourly rate required by applicable worked in excess of 40. equals or exceeds the number of hours No. 24--4 58 (64 of 135) Case: 18-55682, 10/31/2018, ID: 11068173, DktEntry: 24-2, Page 60 of 124

610 RULES AND REGULATIONS

worked in excess of 40 in the workweek, It has been pointed out that, except in is designated as the re gulnr rite; time It Is not necessary to determine whether limited situations under contracts which and one-half such rate is paid for each the total amount of compensation paid qualify under section 7 (o), it is not pos- additional hour worked during the work- for such hours equals or exceeds the sible for an employer lawfully to nitre° day, Thus, for example, an employee Is amount of compensation which would be With his employees that they will receive iirbarerily assigned an Wittily rat/ of due at the appliceblo rates for work per- the same total slum comprising both $1,00 per hour under a contract 'Whiell formed during the hems after the for- straight time and overtime compensa- provides for the payment of so-Called tied' In nay workweek, tion, in all weeks without regard to the "overtime" for all hours in excess of 'I number of overtime hours (if any) per day, Thus, for tile normal or me- e 778.20 Cm puling overtime pay on worked In any workweek. The result nial' 8-hour clay the em ployee would an "established" rate (see, (I) (3) ). cannot be achieved by the paymeat of receive $9 for the first 4 hours and $0 Section 7 (f) (3) of the act provides: n fixed salary or by the payment of a fm the remaining 4 hours; r total of (e) No employer shall be deemed to have lump sum for overtime or by any other $10 for 8 hours, (This is exactly what violated subsection (a) by employing any method or device, he would receive at the straight-time employee for n workweek In excess of forty Where the employee is hired nt a low rate of $1.25 per hour.) On the sixth hours If, pursuant to en agreement or understanding arrived at between the employer hourly rate supplemented by facilities 0-hotie day the employee likewise re- and the employee before performenee of the furnished by the employer, bonuses ceives $10 and the employer claims to Work, the ,amount paid to on employee for (other than those excluded under section owe no additional overtime pay Under the number of hours worked by him in such 7 (d)), commissions, pay ostensibly (but the statute since lie has already com- workweek Ai excess of forty hours • • • not actually) made ear idle hours, or the pensated the employee at "overtime" (9) Is computed at a rate fiat less than like, his regular rate is not the hourly rates for 20 hours of the workweek. one and one-halt times the rate established rate but is the rate determined by divid- Such a division of the normal 8-hour by such agreement or understanding as the ing his total compensation from nil these workday into 4 straight-time hours and basic rate to be used in computing overtime vompensation thereunder: Provided, That sources in any workweek by the number 4 overtime hours is purely fictitious. The the rate so established shall be authorized of hours worked in the week. Payment employee is not paid at the rate of $1.00 by regulation by the Administrator as being of overtime compensation based on the an hour and the alleged overtime rate of substantially equivalent to the overage hourly rate alone in such a situation $1,50 per hour is not paid for overtime hourly earnings of the employee, exclusive would not meet the overtime require- work It is not geared either to hems of overtime premiums, In the particular work ments of the act. "in excess of the employee's normal over a representative period of time: One scheme to evade the full penalty working hours or regular working hours" and It (1) the employee's average hourly of the act was that of setting an arbi- (section 7 (d) (5) ) or for work "outside earnings: for the workweek exert:sive of pay- trary low hourly rate Upon which over- of the hours established in good faith ments described in paragraphs (1) through time compensation at time and one-half * • as the basic, normal or regular (7) of subsection (d) are not less than the would be computed for all hours worked workday" (section 7 (d) (7) ) and it can- minimum hourly rate required by appltoable law, and (it) extra overtime compensation, in excess of 90; coupled with this ar- not therefore qualify as an overtime rate. Is properly computed and paid on other forms rangement was a guarantee that if the The regular rate of pay of the employee of additional pay required to be Included in employee's straight time and overtime in this situation is $1,25 per hour and he computing the regular rate. compensation, based on this rate, fell is owed additional overtime compensa- Regulations Issued pursuant to this short, in any week, of the compensation tion, based on this rate, for all hours in that would be due on a piece rate basis excess of 40. This rule was settled by section will be published in the. FEDERAL of X cents per piece, the employee would the Supreme Court in the case of Walling as Part 548 of this chapter. RESISTER be paid on the piece rate basis instead, Heinrich & Payne, 323 U. B. 37, and Payments made in conformance with The hourly rate was set so low that it its validity has been re-emphasized by the regulation in this part satisfy the never (or seldom) was operative, This the definition of the term "regular rate" overtime requirements of the act. scheme was found by the Supreme Court in naive, (d) of the act es amended. PAY PLANS WHIM CIRCIMENT Tat ACT to be violative of the overtime provisions 5 778.23 Pseudo-bonuses—(a) of the act in the case of Waning v. II 778,21 Artificial regular rates. Since daily labeling part of the regular wages Youngerman-Reynolds Hardwood Co., the term "regular rate" is defined to in- a "bonus." The term "bonus" is properly 325 U. S, 427. The regular rate of the dude all remuneration for employment applied too sum which is paid as art addi- (except statutory exclusions) whether employee involved was found to be the tion to total wages, usually because of ex- quotient of total piece rate earnings paid derived from hourly rates, piece rates, tra effort of one kind or another, or as production bonuses or other sources, the in any week divided by the total hours a reward for loyal service or as a gift, worked in such week. overtime provisions of the act cannot be The term is improperly applied if it is The scheme avoided by setting an artificially low is no better if the em- used to designate a portion of regular hourly rate upon which overtime pay is ployer agrees to pay straight time and Wages which the employee is entitled to to be based and making up the addi- overtime compensation on the arbitrary receive under his regular wage contract. hourly rates and tional compensation due to employees by to make up the dif- For example. if an employer has agreed other means. The established hourly ference between this total sum and the to pay an employee $50.00 a week with- rate is the "regular rate" to an em- piece-rate total in the form of a bonus out regard to the number of hours ployee only if the hourly earnings are the to each employee." worked,. the regular rate of pay of the sole source of his compensation. Pay § 778.22 The "split-day" plan.. An- employee is determined each week by for overtime on the basis of art-ment other device designed to evade the over- dividing the $50.00 salary by the number artificial "regular" rate will not result In time requirements of the net was a plan of hours worked in the week. The situa- compliance with the overtime provisions known as the "Poxon e or "split-day" tion is not altered If the employer contin- of the net, plan, Under this plan the normal or ues to pay the employee the same $50,00 It may be helpful to descries ;. a few regular workday is artificially divided each week but arbitrarily breaks the sum schemes that have been attempted and into two portions one of which is ar- down into wages for the first 40 hours to indicate the pitfalls inherent in the bitrarily labeled the "straight time" at an hourly rate of 75 cents nn home adoption of such schemes, The device portion of the day and the other the overtime compensation at $1.125 per of the varying rate which decreases as "overtime" portion. Under such a plan, hour and labels the balance a "bonus" the length of the workweek increases has an employee who would ordinarily com- (which will vary from week to week, be- already been discussed in e 778.9 (n) (8), mend an hourly rate of pay well in ex- coming smaller as the hours Increase and It might be well, however, to re-empha- cess of the minimum for his work is vanishing entirely in any week In which size that the hourly rate paid for the assigned a low hourly rate (often the the employee works Pee liours or more). identical work during the hours in ex- minimum) for the first hour (or the first The situation is In no way bettered if the cess of 40 cannot be lower than the rate 2 or 4 hours) of each day. This rate employer, standing by the logic of his paid for the first 40 hours nor can the Inbels, proceeds to compute and pay over- hourly rate vary from week to week in- 1,1 For further discusalon of the refinements time compensation due on this "bonus" versely with the length of the workweek. of this plan sec ft 778.93. by prorating it back over the hours of

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the workweek. Overtime compensation (The material in brackets does not Usually tried with respect to employees who work has still not been properly computed for appear in the final records) ; solely on a group piece rate or group com- this employee at his regular rate. Straight time for 40 hours @ 75 an mission basis. For simplicity we will An illustration of how the plan works hour $30. 00 assume that the two employees in the over a three-week period may serve to Overtime for 10 hours @ $1.125 an previous example receive no base hourly illustrate this principle more clearly: hour 11.25 rate but are working solely on a commission basis-11 percent of total sales, In In the first week the employee works 40 41. 25 hours and receives $50.00. The books show ($50-$41.25=$8.75, total amount to order for the scheme to function the em- he has received $30.00 (40 hours X 75 cents an be distributed as a bonus. $8.75/ ployer must provide a minimum hourly hour) as wages and $20.00 as bonus. No $41.25=21.2 % 1 guarantee. The minimum rate of 75 overtime has been worked so no overtime Percentage of total earnings bonus cents is best suited to his purpose for it compensation is due. 21.2% of $41.25 8. 75 provides the greatest leeway as to the In the second week he works 50 hours and number of hours that may be worked receives $50.00. The books show he has re- Total 50. 00 without payment of any additional over- ceived $30.00 for the first 40 hours and $11.25 (10 hours x$1.125 an hour) for the 10 hours Obviously this employee can no more time compensation whatever, but purely over 40, or a total of $41.25 as wages, and the be said to be receiving proper overtime for simplicity in computation, the rate of balance as a bonus of $8.75. Overtime com- than the employee in the previous ex- $1.00 will be used in this example. In a pensation is then computed by the employer ample. This employee's regular rate in week in which the total sales amount to by dividing $8.75 by 50 hours to discover the this week is $1.00 per hour and he is $950 the two employees are together en- average hourly increase resulting from the owed a total of $55 for the week. titled to $104.50 (11%). They will re- bonus-18 cents per hour-and half this ceive this amount regardless of the rate is paid for the 10 overtime hours-$1.80. No better claim of compliance can be This is improper. The employee's regular made by an employer who arbitrarily number of hours they have worked indi- rate in this week is $1.00 per hour. He is pieces out a bonus from all or a part of vidually or collectively. If they work the owed $55.00, not $51.80. group wages. The scheme tends to be same number of hours each will get In the third week the employee works 55 more complex, but the principle is the half-$52.25. This w oUld be true hours and is paid $50.00. The books show same and the same results follow: whether the hours worked by each were that the employee received $30.00 for the first 40, 43, 45 or 48 hours. Only the book- 40 hours and $16.88 (15 hours x $1.125 per One relatively simple example of such a scheme is the following: keeping is altered. If each works 40 hour) for the 15 hours over 40, or a total of hours the record will show for each: $46.88, and the balance as a bonus of $3.22. Two employees are hired as salesmen on Overtime pay due on the "bonus" is found an hourly-rate-plus-commission basis. Each Wages Cp $1.00 per hour $40. 00 to be 45 cents. This is improper. The em- is hired at the rate of $1.00 an hour for the Bonus 12. 25 ployee's regular rate in this week is 91 cents first 40 hours and $1.50 an hopr for over- and he is owned $56.82, not $50.45. time and, in addition, is entitled to a share Total 52.25 Similar schemes have been devised for in commissions earned by each at the rate If each works 45 hours, the record will of one percent of sales. In a given week piece-rate employees. The method is the one employee works 40 hours and the other show : same. An employee is assigned an arbi- works 50. Together they sell $950 worth of Wages @ $1 per hour for 40 hours $40.00 trary hourly rate (usually the minimum) merchandise and are thus entitled to $9.50 Overtime pay @ $1.50 per hour for and it is agreed that his straight-time as commissions. In order to avoid payment 5 hours 7. 50 and overtime earnings will be computed of overtime on the commissions, the em- Bonus is. 10% of total earnings (10% on this rate but that if these earnings do ployer decides to distribute the $9.50 in the of $47.50) 4. 75 not amount to the sum he would have form of a percentage of total earnings. The total wages of the two employees is $95.00 Total 52. 25 earned had his earnings been computed in the particular week. The $9.50 commison a piece-rate basis of "x" cents per sions represent 10 percent of this figure. The total amount earned by each em- piece, he will be paid the difference as The employer therefore pays a 10-percent ployee is exactly the same in each of the a "bonus". This subterfuge does not "bonus" to each employee on his total earn- two weeks because it is determined not serve to conceal the fact that this em- ings. One receives $4.00 as bonus, the other by the hours he works nor by the estab- ployee is actually compensated on a $5.50. The employer claims that no addi- lished rate but only by two unrelated piece-rate basis, that there is no bonus tional overtime is due because the "bonus" factors: the total amount of sales and and that his regular rate is the quotient was a percentage of total earnings and the percentage was determined before the the relation between his hours of work of piece-rate earnings divided by hours amount due any individual employee ;lad and those of the other employees ;-not worked." been determined. the total hours worked by either or both The general rule may be stated that but merely the ratio of the two. whenever the employee is guaranteed a If the commissions were a bonus at all, 'This will become apparent if we look fixed or determinable sum as his wages the method of distribution might be at a workweek in which one works 40 each week, no part of this sum is a true proper. But a bonus, as has been stated, hours and the other 50. The books bonus and the rules for determining over- is a sum paid in addition to regular then read this way: time due on bonuses do not apply. wages and not as a part of such wages. 1st employee: (b) Pseudo "percentage bonuses". The employees have contracted to work Wages @ $1 per hour for 40 hours__ $40.00 The device does not improve when it be- on a wage-plus-group-commission basis. Bonus e 10% of total earnings-- 4. 00 comes more complex. If no true bonus No extra pay-over and above the con- in a flat sum amount can be legitimately tract wage-is involved. As a regular Total 44 00 separated out of the employee's wages, part of their duties, the employees make 2d employee: certainly no bonus in the form of a per- sales and regularly receive a one-percent Wages e $1 per hour for 40 hours $40. 00 centage or total earnings can be so de- commission on the amount of the sale. Overtime pay e $1.50 per hour for rived. Yet some employers, seeking to Moreover, since the employees are owed 10 hours 15. 00 Bonus g 10 c;', of total earnings evade the overtime requirement of the the commissions in an amount related (10% of $55) 5.50 act entirely while apparently complying only to the amount of total sales and with every requirement, have devised without regard to the number of hours Total 60. 50 schemes of this kind. Like the employer worked, no part of such commissions is described in the preceding subsection, paid as overtime compensation. Note that in each case, as long as the such an employer pays his employee $50 In the example just given the employer amount of sales remains constant, the a week without regard to the number of sought only to relieve himself of the two employees together earn $104.50 regardless of whether either works over- hours worked. He also sets up a fic- burden of paying proper overtime on time. or both do, and regardless of the titious regular rate of 75 cents an hour. part of the wages. The example must grow more complex but the principle does number of hours of overtime worked. In a week in which the employee works 50 The first employee worked 40 hours in hours his records show the following: not change when the employer seeks to relieve himself of the entire burden of .the first week and received $52.25, yet he received only $44 for a 40-hour week in ,2 See Walling v. Young,erman-Reynolds overtime by a fictitious division of reg- Hardwocd Co. 325 U. S. 419, where this scheme ular group wages into hourly earnings the third week of the series. The only was struck down by the Supreme Court. and "bonus." This scheme is usually reason for this was that in the third 60 (66 of 135) Case: 18-55682, 10/31/2018, ID: 11068173, DktEntry: 24-2, Page 62 of 124

642 RULES AND REGULATIONS week the other employee worked 10 hoard regular rate of pay for empioyment. "In TITLE 32--NATIONAL DEFENSE of overtime for winch someone had to excess of twelve hours In any workday, pay, The em ployer had invented the or for employment In excess of fifty-six Chapter V--Department of the Army scheme so that 1w, the employer, would ]loins in any workweek, as the ease may not have to pay. The burden would de- be." Subchapter A.-Aid 01 Civil Authorities and Public Roiallons volve in part on the overtime worker Under this provision, where nn Pill- himself, The latter worked 10 Weirs pIOyee Works both in excess of twelve Pen r 2-Pittsou ERs overtime yet he received only $0,25 more horns in ei day Mid hi excess of Ofty-six than he received in a 40-hour week, hours in the nog yegate in a particular 1WAIL The system is an ingenious booekeePe workweek, the employer lutist pay over- Paragraph (a) oft 612,9 is changed to log device but obviously it must fail of time compensation computed on either rend as follows: its purpose. It is only a more elaborate the chilly or the weekly basis, whichever method of claiming that a rate-whether is greater, but not both. ft may be help- 5 512,3 Math--(n) Outgoing, (1) a salary or a piece rate or a commis- ful to illustrate this opinion by specific Each sentenced prisoner confined in an slon-somehow "includes" overtime even examples. Army confinement facility will be per- though it is paid regularly when no over- (a) Suppose an employee paid $1 an witted to write authorized persons a time is worked and without regard to Molar works the following schedule: minimum of one letter each week, except the amount of overtime worked. those' in isolation or solitary conilnelnent, MT WTPEIS who will be permitted to write at /east The examples dealt with two em- nom.. 14 14 14 14 10 0 e ployees. It Is .the same for two as for one letter each ".1 weeks, All letters will one or for twenty. A "bonus" which is On a daily basis the empleee is enti- be submitted unsealed for inspection, derived by subtraction of compensation, tled to 8 hours of overtime pay, or a total (2) No limitation will be placed ezi tile based on an assigned rate, from the totel of $70, for the week (12 hours 31 plus number of letters which may be written amount agreed to be paid to nn employee 2 hours i $1.50 for each of the first 4 by prisoners not serving sentences to or a group is not a bonus and cannot be days ($60) plus 10 hours 0 $1 for the confinement. All letters will be sub- treated as such. fifth day). On a weekly basis the em- mitted unsealed for inspection, Regardless of bookkeeping devices, the ployee is entitled to 10 hours of overtime • • • regular rate of pay of employees em- pay, or a total of $71, for the week (56 r C2, Art 600-375, Jan. 10, 10501 (See. 2, MI Stat. 1085, us amended; 10 U. S. C. 1453. In- ployed on group piece rate or commis- hours 0 $1 plus 10 hours el) $1.50). The sions is determined first by ascertaining employer must pay $71 to satisfy the re- terprets or applies sees. 1, 2, 88 Stat. 1074, 1075, 1085, 1080; 10 IL S. 0, 1955, 1457. 1457n, the total amount which is due to a par- quirements of the act.. 1457b, 1458) ticular employee under the contract and (h) Suppose the employee paid $1 an then dividing this sum by the number of hour works the following schedule: Seal EDWARD P. WITSELL. hours he worked in the week. Extrp MT WT FSS Major General, U. S. A., overtime compensation, at half the rate /fours 10 14 14 14 0 0 0 The Adjutant General. thus determined, is due for each hour in [F. Doc. 50-1007; Filed, Fay. 3, 1050; excess of 40, On a daily basis the employee is entitled to 10 hours of overtime pay, or a 8151 a. Inn DIISCELLANITOUS total of $69, for the week. On a weekly '178.24 Veterans' subsistence allow- basis the employee Is entitled to 8 hours ances. Subsistence allowances paid un- of overtime pay, or a total of $68. for tile der Public Law 346 (commonly known week (56 hours t $1 plus 8 hours t) Chapter VII-Department of the as the G. I, Bill of Rights) to a veteran $1.50). The em ployer must pay $69 to Air Force employed in on-the-job training pro- satisfy the requirements of the act. PART 812-Pnzsonsss gram work may not be used to offset the Munn DATE; RETROACTIVITY wages to which he is entitled under the MAR § 773,26 Effective date. The effective Fair Labor Standards Act. The sub- Cnoss REFERENCE: For amendment of sistence allowances provided by Public date of the amendments provided by section 7 (d), (e), (f) and (g) is Janu- regulations with respect to prisoners, see Law 346 for payment to veterans are not Part 512 of Chapter V, supra, Pain as compensation for services ren- ary 25, 1950. which was made applicable to the Department of dered to an employer nor are .they in- 778.27 Retroactive effect. Section the Air Force at 13 F, ft, 8751. tended as subsidy payments for such 18 (e) of Public Law 393 (81st Cong., employer. In order to qualify as wages 1st Session-Chap, 730 provides: under either section 6 or section 7 of the No employer shall be subject to any lia- Fair Labor Standards Act, sums paid to bility or punishment under the Fair Labor TITLE 39-POSTAL SERVICE an employee must be paid by or on be- Standards Mt of 1038, es amended (in any half of the employer. Since veterans' action or proceeding commenced prior to Chapter I-Post Office Department or after the effective date of this Act), on subsistence allowances are not so paid, 111MT 27-LETTER, CALL, AND LOCK BOXEs, they may not be used to make up the account of the failure of said employer to M40 Kest DEPOSITS minimum wage or overtime pay require- pay an employee compensation for any period ments of the act nor are they included in of overtime work performed prior to July RENT or .BOXES 20, 1114e. if the compensation pald prior to the regular rate of pay under section 'I. July 20, 1010, for such work Ives at least In § 27,7 Rent of boxes (13 P. R. 2881 1 1 778,25 Special overtime provisions equal to the compensation which would have amend paragraph (c) to read as fol- under section 7 (b). Section 7 (b) of been payable for such work had Section 7 (d) lows: (0) and (7) and section 7 (g) of the Fair the act provides a partial exemption from Labor Standards Act of 1038, as amended, (o) Payment of rent by Federal Gov- the overtime provisions under subsec- been In effect nt the time of such payment. ernment agencies. (1) Agencies of the tions (1) and (2) for employees employed Federal Government through their Pursuant to certain collective bargaining For the period between July 20, 1949, and January 25, 1950, the provisions of proper officers are permitted to pay agreements °' and in subsection (3) , for rental on post office boxes for not more a period of not more than fourteen work- the former section 7 to) of the not, as added by the act of July 20, 1949 (Pub, than one full fiscal year in advance, a weeks in the a ggregate in any calendar for the remaining one, two, or three year, for employees in an industry found No. 177, 81st Con g...1st Seas.), provided virtually identical protection, quarters of each fiscal year. When by the Administrator to be of a seasonal boxes have been rented under these con- nature," The exemption, In each case, Signed at Washington, D. C. this 31st ditions, postmasters shall give notice on is conditioned upon the payment to em- day of January 1950, Form 3908, card notice of box rent due. ployees of overtime compensation at not 15 clays in advance of the expiration of less than one and one-half times their Wm. McCosi n, tile period for which rental has been Administrator, paid, A notation showing the amount Wage and Hour Division. la Discussed in Part 781 of this chapter. of rental for one year and the post office . hplscussed in Part 7e0, Subpart A or this [F. n. Doc. 50-073; Piled, Feb. 3, 1050: box number shall be placed in the upper chapter. 8:95 A. m.] right corner of Form 5908. The form 61 (67 of 135) Case: 18-55682, 10/31/2018, ID: 11068173, DktEntry: 24-2, Page 63 of 124

+(,1 2 1/,1(

Citation: 18 Fed. Reg. 3293 (1953), Wednesday, June 10, 1953, pages 3287 - 3302

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62 (68 of 135) Wednesday, June 10,Case: 1953 18-55682, 10/31/2018,FEDERAL ID: REGISTER 11068173, DktEntry: 24-2, Page 64 of 1243293 service or minimum schedule of hours or at a predetermined fixed sum or I, co Such sums may not, however, be credited days of work which are specified m the limited as to provide in effect for the toward overtime compensation due under plan or trust, and further, that eligibility payment of a fixed sum, or is limited to the act. need not extend to officers of the em- or set at a predetermined specified rate (2) Plans for providing benefits of the ployer; or per hour or other unit of work or work- kinds described in section 7 (d) (4) are (2) To such classifications of employees time; referred to herein as "benefit plans." It as the employer may designate with the (e) If the employer's contributions or is section 7 (d) (4) which governs the approval of the Adminitrator upon a allocations to the fund or trust to be status for re3ular rate purposes of any finding, after notice to interested per- distributed to the employees are based contributions made by an employer pur- sons, including employee representatives, on factors other than profits such as suant to a plan for providing the de- and an opportunity to present their views hours of work, production, eMciency, scribed benefits. This is true irrespective either orally or in writing, that it is in sales or savings in cost. of any other features the plan may have. accord with the meaning and intent of § 549.3 Distinction betweet plait and Thus, it makes no difference whether or the provisions of section 7 (d) (3) (b) of trust. As used In this part: not the benefit plan is one financed out the act and this part. The Administra- (a) "Profit-sharing plan" means any of profits or one which by matching em- tor may give such notice by requiring the such program or arrangement as quail- ployee contributions or otherwise encour- employer to post a notice approved by fies hereunder which provides for the ages thrift or savings. Where such a the Admnitrator for a specified period distribution by the employer to his em- plan or trust is combined in a single in a place or 151aces where notices to employees of their respective shares of program (whether in one or more docu- ployees are customarily posted'or at such profits; ments) with a plan or trust for providing other place or places designated by the (b) "Profit-sharing trust" means any profit-sharing payments to employees, Administrator, or he may require notice such program or arrangement as quali- the profit-sharing payments may be ex- to be given in such other manner as he ies under this part which provides for cluded from the regular rate if they meet deems appropriate. the irrevocable deposit by the employer the requirements of the Profit-Sharig (e) The amounts -paid to individual of his employees' distributive shares of Regulations, Part 549 of this chapter, employees are determined in accordance and the contributions made by the em- profits with a trustee for deferred dis- de- with a definite formula or method of tribution to such employees of their re- ployer for providing the benefits calculation specified in the plan or trust. spective shares. scribed in section 7 (d) (4) of the act may be excluded from the regular rate The formula or method of calculation for amendment of may be based on any one or more of such § 549.4 Petition if they meet the tests set forth in this factors as straight-time earnings, total regulations. Any person wishing a revi- paragraph. earnings, base rate of pay of the em- sion of any of the terms of the foregoing (31 In order for an employer's con- ployee, straight-time hours or total regulations in this part may submit in tribution to qualify for exclusion from hours worked by employees, or length writing to the Administrator a petition the regular rate under section 7 (d) (4) of service, or distribution may be made setting forth the changes desired and the following conditions must be met: on a per capita basis. the reasons for proposing them. If, (1) The contributions must be made (f) An employee's total share deter- upon inspection of the petition, the Ad- pursuant to a specific plan or program mined in accordance with paragraph (e) mimstrator believes that reasonable adopted by the employer, or by contract of collective bargaming,'and of this sectibn may not be diminished cause for amendment of the regulations as a result because of any other remuneration the Administra- communicated to the employees. This in this part is set forth, may be either a company-financed plan received by him. tor will either schedule a hearing with (g) Provision is made either for pay- or an employer-employee contributory due notice to interested parties, or will plan. ment to the individual employees of make other provision for affording In- their respective shares of profits within (Ii) The primary purpose of the plan a reasonable period after the determina- terested parties an opportunity to pre- must be to provide systematically for the tion of the amount of profits to be dissent their views in support of or in payment ol benefits to employees on ac- 'tributed, or for the irrevocable deposit opposition to the proposed changes. count of death, disability, advanced age, by the employer of his employees' dis- retirement, Illness, medical expenses, Signed at Washington, D. C., this 3d hospitalization, and the like. tributive shares of profits with a trustee day of June 1953. for deferred distribution to such em- (ill) In the plan or trust, either: ployees of their respective shares after a WZ1. R, McCo:i, (a) The benefits must be specified or stated period of time or upon the occur- Administrator, definitely determinable on an actuarial rence of appropriate contingencies Wage and Hour Division. basis; or specified in the plan or trust: Provided, [F. r. Doe. 53-5121: Filed, Juno 9, 1053; (b) There must be both a definite however That the right of an employee 8:46 a. m.] formula for determining the amount to to receive his share is not made de- be contributed by the employer and a pendent upon his continuing in the definite formula for determining the employ of the employer, after the period benefits for each of the employees par- for which the determination of profits PART 778-OVWRT= COSIPMEITZ ticipating in the plan; or made. has been BONUSES; BEIEEFIT PLAIIS (c) There must be both a formula for § 549.2 Disqualifying provisions. No Pursuant to authority under the Fair determbing the amount to be contrib- plan or trust which contains any one of Labor Standards Act of 1930, as uted by the employer and a provision for the following provisions shall be deemed determining the individual benefits by to meet the requirements of a bona fide amended, § 778.6 (g) of this part is hereunder sec- by revised to read as follows, effective a method which is consistent with the profit-sharing plan or trust under section 7 (d) (3) (b) of the act: upon publication of this document in the purposes of the plan or trust (a) f the share of any individual em- FEDERAL REarSTER: tion 7 (d) (4) of the act. ployee is determined in substance on the (iv) The employer's contributions § 778.6 Bonuses-* 0 must be paid irrevocably to a trustee or basis of attendance, quality or quantity (g) Benefit plais; including profit- of work, rate of production, or efficiency* third person pursant to an insurance (b) If the amount to be paid periodi- sharing plans or trusts proidingsimilar agreement, trust or other funded ar- cally by the employer into the fund or benefits. (1) Section 7 (d) (4) of the rangement. The trustee must assume trust to be distributed to the employees act provides that the term "regular rate" the usual fiduciary responsibilities im- is a fixed sum; shall not be deemed to include: posed upon trustees by applicable law. minimum (c) If periodic payments of contributions irrevocably made by an em- The trust or fund must be Set up M such the employees are guaran- amounts to ployer to a trustee or third person pursuant away that In no event will the employer teed by the employer; to a bona fide plan for providing old age. be able to recapture any of the contribu- (d) If any individual employee's share. retirement, life, accident, or hcalth Insur-• ° by the terms of the plan or trust, is set ance or similar benefits for employcCa 0 tions paid in nor in any way divert the

63 (69 of 135) 3294 Case: 18-55682, 10/31/2018,RULES AND REGULATIONSID: 11068173, DktEntry: 24-2, Page 65 of 124 funds to his own use or benefitYt Al- cording to whether or not the require- amended so that item 303 of Schedules A though an employer's contributions ments set forth in subparagraph (3) of reads as set forth below. made to a trustee or third person pursu- this paragraph are met. If the contri- (Sec. 204, 61 Stat. 197, as amended; 60 U. S, 0. ant to a benefit plan must be irrevocably bution is not made as provided m section App. Sup. 1894) made, this does not prevent return to the 7 (d) (4) or if the plan does not qualify employer of sums which he has paid in as a bona fide benefit plan under that Issued this 5th day of June 1953, excess of the contributions actually section, the contribution is treated the GLENVOOD J. SIJERn1ARD, called for by the plan, as where such ex- same as any bonus payment which is Director of Rent Stabilization. cess payments result from error or from part of the regular rate of pay, and at the necessity of making payments to the time the contribution is made the (303) [Revoked and decontrolled,] cover the estimated cost of contributions amount thereof must be apportioned These amendments decontrol the fol- at a time when the exact amount of the back, over the workweeks of the period- lowing on the initiative of the Director necessary contributions under the plan during which it may be said to have ac- of Rent Stabilization under section 204 is not yet ascertained. For example, a crued. Overtime compensation based (c) of the act: benefit plan may provide for definite in- upon the resultant increases m the reg- The Howard County Defense-Rental Area surance benefits for employees in the ular hourly rate is due for each over- in the State of Texas. event of the happening of a specified time hour worked during any workweek IF. R. Dec. 53-5143; Filed, Juno 9, 1053, contingency such as death, sickness, ac- of the period. The subsequent distribu- 8:51 a. m.] cident, etc., and may provide that the tion of accrued funds to an employee on cost of such definite benefits, either in account of severance of employment (or full or any balance in excess of speci- for any other reason) would not result fled employee in any increase 'contributions, will be in his regular rate in the [Rent Regulation 3, Amdt. 135 to Schedule A] borne by the employer. In such a week in wich the distribution is made. [Rent Regulation 4, Amdt. 78 to Schedule A] case the return by the insurance com- (52 Stat. 1060, as amended; 29 U. S. C. 201- pany to the employer of sums paid by 219) RR 3-HoELs him in excess of the amount required to provide the benefits which, under the Signed at Washington, D. C., this 3d RR 4-MOTOR COURTS plan, are to be provided through con- day of June 1953. SCHEDULE A-DErENE-RENTAL AREAS tributions by the employer, will not be WL R. MCCOATB, deemed a recapture or diversion by the Administrator. TEXAS employer of contributions made pursu- Wage and Hour Divisin. Effective June 10, 1953, Rent Regula- ant to the plan. [F. R. Doe. 53-5122; Filed, June 9, 1953; 3 and Rent Regulation 4 are amended Cv) The plan must not give an em- 8:47 a. m.] so that item 303 of Schedules A reads as ployee the right to assign his benefits set forth below. under the plan nor the option to receive (Sec. 204, 61 Stat. 197, as amended; 50 U, 8, 0, any part of the employer's contributions TITLE 32A-NATIONAL DEFENSE,- App. Sup. 1894) in cash instead of the benefits under the plan: Provided, however That if a plan APPENDIX* Issued this 5th day of June 1953., otherwise qualifies as a bona fide benefit Chapter XI-Defense Elechic Power GLENWOOD J. SISERRARD, plan under section 7 (d) (4) of the act, Director of Rent Stabilization. it will still be regarded as a bona fide Administration, Department pf the plan even though it provides, as an in- Interior (303) [Revoked and decontrolled.] cidental part thereof, for the payment [DEPA Order EO-3, Revocation] These amendments decontrol the fol- to an employee in cash of all or a part lowing on the Initiative of the Director of of the amount standing to his.credit EO-3-NorNuILiTy ELECTRIC POWER (a) PROJECTS; INFORmATION Rent Stabilization under section 204 (o) at the time of the severance of the em- To BE FILED of the act: ployment relation due to causes other REVOCATION The Howard County Defense-Rental Area than retirement, disability, or death, or in the State of Texas. (b) upon proper termination of the plan, Order EO-3 is hereby revoked. This revocation does not relieve any person [F. R. Doe. 63-5144; Filed, Juno 9, 103; or (c) during the course of his employ- of. ment under circumstances specified in any obligation or liability incurred 8:51 a.m.] the plan and not inconsistent with under EO-3, nor deprive any person of the any rights received or accrued under general purposes of the plan to provide said order prior to the benefits, described in section 7 Cd) the effective -date of TITLE 38-PENSIONS, BONUSES, (4) of the act. this revocation. AND VETERANS' RELIEF (4) Plans under section 165 (a) of the (64 Stat, 816; 50 U. S. C. App. 2154) Chapter I-Veterans' Administration InternalRevenue Code. Where the-ben- This revocation shall take effect im- efit plan or trust has been approved by mediately. PART 21-VocATIONAL REIIABILITATION the Bureau of Internal Revenue as satis- Js nsS F DAVENPORT, AND EDUCATION fying the requirements of section 165 Ca Administrator SUBPART E-VETERANS' READJUSTMENT of the Internal Revenue Code, in the Defense Electric Power Administration. absence of evidence to the contrary, the AssIsTANcE ACT OF 1952 [F. R. Dec. 53-5182; Filed, June 9, 1953; plan or trust will be considered to meet IIISCELLANEOUS AMENDMENTS the conditions specified in subparagraphs 8:54 a. in.] (3) () (iii) (iv) and Cv) of this para- 1. In § 21.2066, paragraph (f) (1) Is amended and a new paragraph (h) (4) graph. Chapter is added as follows: (5) It should be emphasized that it is XXI-Office of Rent Stabiliza- the employer's contribution made pur- tion, Economic Stabilization Agency § 21.2066 Measurement of full- or suant to the benefit plan that is excluded [Rent Regulation 1, Amdt. 143, to part-time courses. * * * from or included in the regular rate ac- Schedule A] (f) Law course. (1) An accredited law course pursued in an accredited law [Rent Regulation 2, Amdt. 141 to - school for the LL.B. degree where, as Is 2, It should also be noted that in the case N Schedule A] of joint employer-employee contributory usual, the units of credit are of greater plans, where the employee contributions are RP- 1-Housinm value than the standard units of credit not paid over to a third person or to a trus- RR, 2-Rooms 3N ROOMING HOUSES AND for other courses leading to undergradu- tee unaffiliated with the employer, violations OTHER ESTABLISHMrENTS ate degrees-in other schools shall be of the act may result if the employee con- measured as In paragraph (e) tributlons cut into the required minimum or SCmEDULE A-DEFisE-RENTAL AREAS of this overtime wages. See the interpretative bul- section, except that an accredited 4-year letin on Methods of Payment, Part 777 of TEXAS night law course unless approved as a this chapter, §1777.10, 777.11, 777.12 and Effective June 10, 1953, Rent Regula- full-time course pursuant to the stand- 777.13. tion 1 and Rent Regulation 2 are ards established by the American Bar

64 (70 of 135) Wednesday, June Case: 10, 1953 18-55682, 10/31/2018,FEDERAL ID: REGISTER 11068173, DktEntry: 24-2, Page 66 of 1243295 Association shall be considered part time is hereby delegated the authority to ap- the Veteans' Administration any other and shall be measured as not more than prove or disapprove, subject to the pro- s rviess in connection with Title I of 4 time. visions of the law and Veterans' Admin- this law. Where apprentice courzss are istration regulations, the applications reatered with and are under the supar- (h) Cooperative course.. for approval of courses of education or vision of either a State Apprenticeship (4) Most cooperative courses of col- training which are submitted for ap- agency or the Federal Bureau of Ap- lege level are organized on a 5-year plan proval by the Administrator under the prenticezhip, and where approval or and usually include a period devoted ex- provisions of paragraph (c) of this supervisory visits in addition to those, if clusively to academic instruction occur- section. The manager of the regional any, made under the regular State or ring at both the beginning and the end office is hereby- delegated like authority Federal proram to establishments offer- of the course, such periods being the to approve or disapprove, subject to re- ing such courses under Public Law 559 equivalent to at least a semester in view on appeal to the asistant admin- are made by perzonnel of the State ap- length. The intervening period-usually istrator for vocational rehabilitation proving agency, the appropriate State 3 years or more-consists of a series of and education, the applications for approving agency will be reimbursed for cycles of relatively equal alternating courses of education or training offered the necezzary salaries and travel expense periods of classroom instruction and by institutions or establishments within for m'-fng one such visit each year occupational experience, L e., during this the area of his jurisdiction which are and for any additional visits made at the period the institutional portion of the sponsored by or are under the control request of the Veterans' Administration. course is supplemented by on-the-job of a Federal agency in the following Where the designated State approving training. For example, in one- course instances: agency for the approval of apprenticeship the first period extending from Septem- (i) In all local installations of a Fed- courses Is the State apprenticeship ber to April of the freshman year is de- eral agency which does not have ctand- agency, reimbursement for services in voted to academic instruction only. ard training programs applicable to all connection with apprentice programs Following the series of cycles of alternat- installations but which allows the local will be made for the clerical salary ing classroom instruction and occupa- installations to develop their own courses expense incurred in processin-g the appli- tional experience the final 6 months of of apprentice or other on-the-Job cations submitted by training establish- the senior year are devoted exclusively training. ment- and furnishing notices of approval to classroom instruction. In another (2) In all educational institutions, in- as provided in § 21.2207. -course the first 2 school years and the cluding hospitals which offer residency, final semester of the fifth year are de- internship, nursing, or technician 4. In § 21.2203, paragraph (a) (4) voted exclusively to classroom instruc- courses. (ii) Is amended to read as follows: tion. When the course is not comprised (e) Applications for approval of in its entirety of cycles of alternating courses as provided in paragraph (d) of § 21.2203 Approval of accredited cource-(a) Accredited cursea. = academic instruction and occupational this section shall be submitted in ac- (4) 0 0 a experience, the veteran shall receive the cordance with the law and Veterans' education and trainng allowance set Administration regulations and shall (i) Credf for the course is awarded forth in § 21.2052 (b) for that portion of contain the information as required by in terms of standard semester or quarter the course during which the on-the-job Veterans' Administration reaulations hours. training supplements the institutional with respect to applications to a State (Csc. 201. CS Stat. C-3) portion, that is, for that portion consst- approving agency. his rezlilation is effective June 10, ing of cycles of alternating academic (f) Upon notification that the appro- 1953. instruction and occupational experience. priate State approving agency docs not The veteran shall receive the education intend to act upon the application of any tscrALl E. V. SrxrL=.a, and training allowance set forth in educational institution or training estab- Deputy Admznstrator, § 21.2052 (a) for those periods equivalent lishment desiring to offer education or [P. R. Doec. 53-5115; iled, June 9. 193.. to at least a semester in length which training under the law, such Institution 8:45 a. m-I are devoted exclusively to academic in- or establishment may submit to the struction and which either precede or Administrator an appropriate applica- follow the series of cycles. Where the tion for approval. Such appliction TITLE 47-TELECOMMUNI- course is comprised in its entirety of should be supported by explanation of CATION cycles of alternating academic instruc- the reasons for failure of the State ap- tion and occupational experience or proving agency to act. Chapter I-Federal Communications where the period devoted exclusively to 3. In § 21.2153, paragraph (b) (5) is Commission academe instruction at the beginning amended to read as follows: or end of the course is less than the Psnr 31-Uz'orr S'ys or Accorss, equivalent of a semester in length, the § 21.2153 Reimburscmentof expenses CLxs A AnuB TEzrHoz-, CozwP UmS veteran shall be paid the education and under Public Law 550, 82d Con- IDITO L CHANGES training allowance set forth in § 21.2052 gress. * * * (b) If the veteran interrupts his tram- (b) Reimbursement. 0 In the matter of amendment of Part 7ng under the law for that part of a (5) On-the-job and apprentice train- 31 of the Commisson's rules and regula- cycle devoted to occupational experience, zng cours%. The law does not authorize tions to effect certain editorial changes he shall not receive any education and the Veterans' Administration to reim- therein. training allowance during the period of burse a State or Federal agency for ex- The Commission having under con- such interruption, and the fact of such penses incurred by such agency which sideration the desirability of makin_ cer- interruption will not operate to make the are in connection with duties normally tain editorial changes in Part 31 of its veteran entitled to the rate set forth In a function and responsibility of the State rules and reg-ulations: and § 21.2052 (a) for the part of the cycle or Federal Government or agency there- It appearing, that the amendments devoted exclusively to academic instruc- of and which would normally be per- adopted herein are editorial in nature, tion. formed without reference to the and therefore, prior publication of notice veterans' program. Except as provided of propozed rule maLing under the pro- in vilons of caction 4 of the Administrative 2. In § 21.2151, this subparagraph. State approving paragraphs (d) and agencies will be reimbursed Procedure Act is unnecessary, and the (e) are amended and a new paragraph for nec=zary salurles and travel expense in connec- amendments may become effective im- (f) is added as follows: mediately- and tion with the inspection, approval, and It further appearing, that the amend- § 21.2151 Approval of courses under supervision of establishment, offering Public Law 550, 82d Congress. ments adopted herein are issued pur- * * * apprentice or other on-the-job training suamt to authority contained in sections (d) The assistant administrator for courses to veterans enrolled under this 4 (1) 5 (d) (1) and 303 (r) of the Com- vocational rehabilitation and education law and for furnishing at the rcquest of munlcations Act of 1934, as amended, No. 112-2

65 (71 of 135) 3296 Case: 18-55682, 10/31/2018,RULES AND ID:REGULATIONS 11068173, DktEntry: 24-2, Page 67 of 124 and paragraph F-6 of the Commission's Directions for altering text: Order Defining the Functions and Es- tablishing the Organizational Structure Reference De1;to Substituto of the Office of the Secretary dated February 14, 1952, as amended: Section designated as § 31.09-9A ------31.09-9A ------! ...... 31.01-9A. It is ordered, This 2d day of June 1953 In the last line of paragraph (a) -of § 31.1-13 ----...... 31,1-16a ------_-- 31.1-1A, Four places mparagraph (d) (1) of 31.122------units of property------retirencnt unltg; that, effective immediately, Part 31 of In eighth line of paragraph (d) (1) of § 31.122 ------312-25 (d)------31.2--25 (e), In fourth line of § 31.168 ------debts ...... debt. the Commission's rules and regulations In the last line of paragraph (a) of § 31.172------31.2-25(e) ...... 31.2-25(0, is revised as set forth below. In sixth line of paragraph (b) of §31.173 ------o...of...... or. In the last line of paragraph (a) of § 31.211 ....------31.2-25 (c) ------31.2-25 (d), (See. 4, 48 Stat. 1066, as amended; 4'7 U: S. C. Item preceding "Frames" m list for §31.221 ------Generators ...... Engine. 154. Interprets or applies sec. 303, 48 Stat. In the last line of §31.277_ ------31.2-25 () ...... 31.2-25 (g). In third line of 131.401 ------§§31.2-25 (e), 31.2-25 (0...... 31.2-25 (d) ant (g. 1082, as amenped. 4' U. S. C. 303) In third line of 131.410 ------§ 31.2-25 (0), (f) ------. 31,2-25 (d) and (g), In the tenth item of § 31.413 ------31.-16a ...... -31,1-16A, Released: June 3, 1953. In the fourteenth item of § 31.620 ------attendance------attendants. In the firstline of Note B to §31.649 ------of ------or, In second line ofparagraph (c) of §31.672 ------plant ....------. pla. FEDERAL COMMUNICATIONS Under "282 Station Installaftions" of § 31.8------(b) ------. . ( , CovMiS5ION, Under "2 lopr and block wires" of §31. ------(b------..... ". ;.=.. " (e). [SEAL] T. J. SLOWIE, - Secretary. IF. n. Dce. 53-5140; Filed, June 9, 1953; 8:50 a. m.]

PROPOSED RULE MAKING

DEPARTMENT -OF AGRICULTURE License No. ,"or "U. S. Vet. License tains ------as a preservative", or an No .___" or "U. S. Vetbnnary Permit equivafent statement, Including the Bureau of Animal Industry No ...... ," or "U. S. Vet. Permit No. antibiotic added; [9 CFR Parts 112, 114, 117, (13) (1) In the case of a diluent which (4) A serial number by which the is to be removed from Its container and 119] product can be identified with the manu- entirely added to a desiccated biological VIRUSES, SERUMS, TOXINS, AND ANALOGOUS facturer's records of preparation; product, the label of such diluent is ex- PRODUCTS, AND CERTAIN ORGANISM[S AND (5) A permitted' expiration date af- empt from the provisions of subpara- VECTORS fixed before the product is removed from graphs (9) and (10) of this paragraph; the manufacturer's establishment; (ii) In the case of a diluent with which NOTICE OF PROPOSED RULE MAKING (6) A dosage table and full instruc- a desiccated biological product Is to Notice is hereby given, in accordance tions for the proper use of the product come in contact while the diluent is In with section 4 (a) of the Admimstrative- .r a statement in the case of very small its original container, the label of such Pi'ocedure Act (5 U. S. C. 1003 (a)) that labels as to where such information is diluent must conform to the provisions the Secretary of Agriculture, pursuant to be found; of subparagraphs (9) and (10) of this to the authority vested in him by the (7) The quantity of the contents of paragraph; Virus-Serum-Toxin Act of March 4, 1913 each immediate or true container in (iii) In the case of a desiccated biolog- (21 U. S. C. 151 et seq.) and section 2 of cubic centimeters, units, grams, or milli- ical product which Is to be added to a the act of February 2, 1903, as amended grams; diluent and never returned to the orig- (8) Instructions to keep the product (21 U. S. C,111) is considering amend- ° inal container, the label of such desic- ing §§ 112.2, 112.27, 114.2 (a) 114.5, at a temperature of not over 45 F.. cated biological product shall conform 114.6, 117.4, and 119.4 of the regulations Provided, That all labels, circulars, and to the provisions of subparagraph (10) relating to viruses, serums, toxins, and the like for liquid Brucella abortus vac- of this paragraph but Is exempt from the analogous products, and certain organ- cine and rabies vaccine shall include a provisions of subparagraph (9) of this isms and vectors (9 CPR 112.2, 112.27, warning against freezing and instruc- paragraph; and 114.2 (a) 114.5, 114.6, 117.4, and 119.4),. tions to keep the product under refrig- (14) All other similar Information re- in the following respects: eration at 350 to 45' F., quired by the Chief. 1. Section 112.2 would be amended to (9) In the case of a multiple-dose (b) Labels of biological products pre- read. container, a warning that all of the pared at licensed establishments or im- product should be used at the time the § ported may also include any other state- 112.2 Required and permitted. in- container is first opened, except as pro- ment which is not false or misleading, formation. (a) Except as provided by vided in subparagraph (13) of this para- (c) the Chief, Labels of biological products pre- each label of a biological graph; pared at licensed establishments or Im- product prepared at a licensed establish- (10) In the case of a product comment or imported ported shall not Include any statement, shall include the posed of viable or dangerous organisms design, or device which overshadows the following: or viruses, the notice "Burn this con- (1) The true true name Of the product as licensed or name of the product tamer and allnunused contents" promi- which Is false which name shall be identical.with or misleading In any par- that nently placed and lettered and affixed to ticular or which may otherwise deceive shown in the license or permit under the immediate or true container of such the purchaser. which the product is prepared or im- product, except as provided in subpara- ported and shall be prominently lettered graph (13) of this paragraph; 2. Section 112.27 would be amended to and placed giving equal emphasis to each (11) In the case of subcutaneous read. word composing it; tuberculin, a statement indicating the § 112.27 Selection, marketing, testing, (2) The name and address of the i- quantity of Koch's old tuberculin and holding censee bzi licensee. (a) Repre- or permittee: Provided, That (K. 0. T.) in each cubic centimeter, sentative samples of each batch of every when the licensee has more than one disk, or the like of the product, and rec- establishment, biological product, except anti-hog- one street address only ommendations regarding the minmum cholera serum, shall be given, although hog-cholera vaccine, and the general lo- dose to be administered. Provided, That hog-cholera virus, shall be selected at cation of each licensed establishment in this dose for subcutaneous use shall be random from such case may be stated; packages finished for not less than the equivalent of 0.5.gram marketing by designated laboratory cm- (3) The license or permit number K. C. T., ,ployees assignerd by the Department in each licensed establishment, which-shall (12) In the case of a product which Said representative samples shall Include be shown only in one of the- following contains an antibiotic added during the two samples forms, respectively- "U. S. Veterinary reserved for Bureau call production process, the statement "Con- and such other samples as may be re-

66 (72 of 135) Wednesday, June Case: 10, 1953 18-55682, 10/31/2018,FEDERAL ID: REGISTER 11068173, DktEntry: 24-2, Page 68 of 124 97

quired by the licensee for examination (a) Fowl-pox vaccine. For testing stcti shall be prepared e.ctly as the and testing. Each sample reserved for each batch of fowl-pox vaccine, 12 product i- to ba used in the field. This Bureau call shall (1) consist of two or healthy cockerels or other suitable young group should serve to indicate whether more containers and the package (or chickens of the same source hall be the product is free from the etiological packages) shall be sealed, dated, and in- made available at the same time. This agents of coryza and similar diseases. itialed when taken; (2) be adequate in group shall have been Immunized for at (4) The three remaining birds s:- quantity for appropriate examination least 21 days with fowl-pox vaccine. lected shall be isolatad and held a- con- and testing; (3) be truly representative previously tested and found ratlcSfactory. trols under obZexvation for at least 21 of the batch which is to be marketed and (1) Three of the test birds selected days. be in true containers; and (4) be held shall be injected subcutaneously with 10 (5) All tha treated birds shall be ob- by the licensee at least 6 months after times the field doze of the vaccine to be served daily for at least 21 days. All the latest expiration date stated on the tested. The vaccine as tested shall be the test birds that succumb shall be labels. -prepared exactly as the product is to ba subjected to a post mortem examination (b) A special compartment or the used in the field. This group should by a competent veterinarian. The equivalent shall be set aside by the serve to indicate whether the product product shall b3 withheld from the mar- licensee for the exclusive holding of the is free from other viruses and etlolo.lcal het until It and the test birds are shown two samples reserved for Bureau call agents of septicemia diseaem ° to be free of the causative agents of any under refrigeration at 35 to 450 F. The (2) Three of the test birds selected extraneous diseases. No bird shall be samples shall be stored systematically shall be injected intratracheally with u-1ed more than once in mangm test3. for ready reference and procurement if 10 times the field doze of the vaccine to and only healthy birds shall be removed and when requested by the Bureau. be tested. The vaccine as tested shall from the premicss. be prepared exactly as the product Is to (c) Newcastle dsease raccine. For 3. Paragraph (a) of § 114.2 would be be used in the field. This group -hould amended to read: testing each batch of Newcaztle disease serve to indicate whether the product is vaccine, 15 healthy cockerels or other § 114.2 Methods. (a) All biological free from the etiological agents of laryn- suitable young chickens of the same -roducts shall be prepared, handled, gotracheitis and similar diseases. source shall be made available at the stored, marked, treated, and tested by (3) Three of the test birds selected same time. This group shall have be en licensees in accordance with methods shall be injected intranazally with 0.2 Immunized for at least 14 days with described in the licensees' outlines pro- cc. of the vaccine prepared exactly as the Newcastle disease vaccine previously vided for under this section, unless other product is to be used in the field. This tested and found satisfactory. methods are prescribed or permitted by group should serve to indicate whether (1) Three of the test birds selected the Chief n winch case such other meth- the product is free from the etlolo-ical shall be injected subcutaneously with 10 ods shall be used. agents of coryza and similar diseases. times the field doze of the vaccine to be (4) The three remaining birds se- tested. The vaccine as tested shall be 4. Section 114.5 would be amended to lected shall be Isolated and held as con- read: prepared exactly as the product is to trols under observation for at least 21 be used in the field. This group should § 114.5 Brucella abortus vaccine; days. serve to indicate whether the product is marketing and use. (a) Licensees' pro- (5) All the treated birds shall be ob- free from other viruses and etiological duction outlines for Brucella abortus served daily for at least 21 days. All the agents of septicemic diseases. vaccine shall specify, among other test birds that succumb shall be sub- (2) Three of the test -birds selected things, the minimum number of viable jected to a careful post mortem exam- shall be injected Intratracheally with 10 Brucella abortus organisms per cubic ination by a competent veterinarian. times the field dose of the vaccine to be centimeter that shall be present in the The product shall be withheld from the tested. The vaccine as tested shall be product until the end of the period of mfrket until it and the test birds are prepared exactly as the product is to be use indicated by the expiration date. shown to be free of the causative agents used In the field. This group should The expiration date for the liquid form of any extraneous disease. No bird shall serve to indicate whether the product is of this vaccine shall not exceed 3 months be used more than once In making tests, free from viruses of laryngotracheitis from the date of production (harvest- and only healthy birds shall be removed and similar diseases. ing) and for the desiccated form shall from the premises. (3) Three of the test birds selected not exceed 15 months from the date of (b) Laryngotracheitis vaccine. For shall be injected ntranasally with 0.2 production (harvesting). The vaccine testing each batch of laryngotracheltis cc. of the vaccine prepared exactly as shall be marketed only in vials of re- vaccine, 12 healthy cockerels or other the product is to be used In the field. sistant glass of low alkalinity and urn- suitable young chickens of the same This group should serve to indicate form stability, and all other glass source shall be made available at the whether the product is free from viruses containers used in preparation of the same time. This group shall have been of coryza and similar diseases. product shall be of like resistance. immunized for at least 14 days with (4) Three of the test birds selected (b) Freshly prepared Brucella abortus laryngotracheltis vaccine previously shall be treated by applying at least 10 vaccine shall contain, when subjected to tested and found satisfactory. times the field dose of the vaccine to be testing, not less than 10 billion viable (1) Three of the test birds selected tested to a scarified area of at least 1 Brucella abortus organisms per cubic shall be injected subcutaneously with 10 square centimeter on the comb of each centimeter. The vaccine also shall con- times the field dose of the vaccine to be bird. The vaccine as tested shall be pre- tam not less than 5 billion viable Brucella tested. The vaccine as tested shall be pared exactly as the product is to be abortus organisms per cubi centimeter prepared exactly as the product Is to be used In the field. This group should until the end of the period of use as used in the field. This group should serve to indicate whether the product is indicated by the expiration date recorded serve to indicate whether the product free from the virus of fowl-pox. on all labels used on or in connection is free from other viruses and etlological (5) The three remaining birds se- with each immediate or true container agents of septicemic diseies. lected shall be Isolated and held as con- of the same mixture or batch. (2) Three of the test birds selected trols under observation for at least 21 shall be treated by applying at least 10 5. Section 114.6 would be amended to days. times the field dose. of the vaccine to be (6) All the treated birds shall be ob- read: tested to a scarified area of at least 1 I § 1146 Fowl-pox vacczne, laryngotra- square centimeter on the comb of each served daily for at least 21 days. All the bird. The vaccine as tested shall be pre- test birds that succumb shall be sub- cheitis vaccine, and Newcastle disease jected to a post mortem examination vaccine. Licensed establishments shall pared exactly as the product Is to be used by test each batch of fowl-pox vaccine, in- in the field. This group should serve a competent veternarian. The product cluding pigeon pox, laryngotracheitis to indicate whether the product is free shall be withheld from the market until vaccine, and Newcastle disease vaccine from the virus of fowl-pox. It and the test birds are shown to b- free as provided in this section to determine (3) Three of the test birds selected of the causative agents of any extrane- whether it is free from the causative shall be Injected ntranazally with 0.2 cc. ous dizeaces. No bird shall be used more agents of extraneous diseases. of the vaccine to be tested. The vaccine than once in maing tests, and only

67 (73 of 135) 3298 Case: 18-55682, 10/31/2018,PROPOSED ID:RULE 11068173, MAKING DktEntry: 24-2, Page 69 of 124 healthy birds shall be removed from the 'produce anti-hog-cholera serum at FEDERAL COMMUNICATIONS premises. licensed establishments shall be healthy 6. Section 117.4 would be amended to at the time of hyperimmunization, and COMMISSION read: this fact shall be determined by a [47 CFR Part 3 1 thorough veterinary inspection. The § 117.4 Time held in contact. (a) weight of each animal in a given group [Docket No. 104921 Except as otherwise provided in § 117.6, shall be determined and recorded accu- STANDARD BROADCAST STATIONS each group of 200 or less sheep'or goats rately by the licensee before hypenm- and each group of 20 or less cattle at munization of the group. NOT CE ,OF EXTENSION OF TIME FOR FILII4( licensed establishments shall be held in COMMENTS the contact pens for at least 2 days in The primary purposes of the forego- contact with not less than 2 contact ing proposed amendments are to In the matter of amendment of the calves, and each animal shall be allowed clarify the Provisions of the regulations Standards of Good Engineering Practice free range 'and contact with said contact with respect to labeling of desiccated concerning Standard Broaddast St.t- calves and the other animals in the products, to require safety tests tions, Docket No. 10492. for 1. On group. Newcastle, disease vaccine, to restate May 8, 1953, the Commission (b) Except as otherwise provided in minimum issued a notice of proposed rule making requirements for Brucella (FCC 53-521) In the above-entitled mat- § 117.6, each group.of hogs which arrives abortus vaccine in order to provide for at a licensed establishment in the same ter which.specified that comments were conveyance multiple dose containers, to provide a to be filed on or before May 29, 1053. shall be held in the contact more practical pens for at least 1 day in contact with system for the contacting The Association of Federal Communica- not less than 2 contact calves, except of hogs in serum plants, and to clarify tions Consulting Engineers has requested that In the case of pigs used in testing certain other provisions of the regula- that consideration In this matter be the potency and purity of anti-hog- tions. postponed until the Association can col- cholera serum, 6 hours will be sufficient. Any person who 'wishes to submit late the opinions of Its members; and More than 1 group of such animals may written data, views, or arguments con- that a further time for filing comments be placed in the same contact pen pro- cerning the foregoing be permitted. proposed amend- 2. In view viding the total number of hogs in the ments may do so by filing of the above request notice them with the is hereby given that time for filing'con- pen does not exceed 200. Each animal Chief of the Bureau of Animal Indus- shall be allowed free range and contact ments In the above-entitled matter Is with said contact try, Agricultural Research Administra- textended to June 29, 1953. Replies to calves and the other tion, animals in the group. Hogs immune to U..S. Department of Agriculture, such comments may be filed on or before hog cholera may be removed from the Washington 25, D. C., within ten days July 9, 1953. contact pens for hyperimmunization at after the date of publication of this Adopted: June 2, 1953, any time while being held as aforesaid: notice in the YEDERAL REGISTER. Released: June 3, 1953. Promded, They are returned to said pens Done at Washington, immediately after this D. C., this 5th operation. day of June 1953. FEDERAL COMMUNICATIONS 7. Section 119.4 would be amended to COMMIsSION, read: [SEAL] E. T. BENSON, [SEAL] T. J. SLOWIV, Secretary of Agriculture. Secretary. § 119.4 Health and wezght when. hy- [F. R. Dc. 53-5147; Filed, June 9, 1953; IF. R. Doc. 53-5137; Filed, Juno 0, 1953, perzmmunized. Hogs which are used to 8:52 a. m.] 8:50 a. in.]

AN0OTICES -

DEPARTMENT OF AGRICULTURE amended by changing the date in para- terms and conditions therein contained graph number 3 thereof from June 1, and is subject to the provisions of Part Office 1953. of the Secretary 1953, to July 1, 522. The effective and expiration dates, VESICULAR EXANTHEMIA, A DISEASE OF Done at Washington, D. C., this 5th occupations, wage rates, number or pro- SWINE day of June 1953. portion of learners, and learning period for certificates issued DECLARATION AND under the general STATEMENT OF POLICY [SEAL] TRUE D. MoRsE, learner regulations (§§ 522.1 to 522.14) On April 22, 1953, there was published Secretary of Agriculture. are as Indicated below; conditions pro- In the FEDERAL REGIsTgR (18 F R. 2358) [F. R. Doe. 53-5134; Filed, June 9, 1953; vided in certificates Issued under special a Declaration and Statement of Policy 8:49 a. in.] industry regulations are as established In regarding vesicular exanthema, a disease these regulations. of swine, in which it was stated, in effect, Single Pants, Shirts and Allied Gar- that this Department will not join with DEPARTMENT OF LABOR ments, Women's Apparel, Sportswear the States in the payment of indemnities and Other Odd Outerwear, RAInwear, to owners of swine destroyed in connec- Wage and Hour Division Robes and Leather and Sheep-Lined tion with an outbreak of the disease LEARNER -EMPLOYMENT CERTIFICATES Garments Divisions of the Apparel In- after June 1, 1953, associated with the ISSUANCE TO VARIOUS INDUSTRIES dustry Learner Regulations (29 CF feeding of raw garbage. 522.160 to 522.166, as amended Decem- At the time of the issuance of the above Notice is hereby given that pursuant ber 31, 1951, 16 F R. 12043, and June 2, document, it was contemplated that the to section 14 of the Fair Labor Stand- 1952, 17 F R. 318) revised regulations restricting the inter- ards Act of 1938, as amended (52 Stat. state movement of swine and swine 1068, as amended; 29 U. S. C. and Sup. Ann Lee Frocks, 631 Fellows Avenue, lan- products because of vesieular 214) and Part 522 of the regulations over Township, Lyndwood, Pa., effective exanthema 6-2-53 to 6-1-54; for normal labor turnover would become effective, on June 1, 1953. issued thereunder (29 CFR Part 522) 10 learners (dresses). It is now proposed to issue such regula- special certificates authorizing the em- G. Forest Braithwaite, 105 West Main tions effective on July 1, 1953. Further- ployment of learners at hourly wage Street, Ripley, N. Y., effective 5-2-53 to more, under the laws of various States, rates lower than the minimum wage 5-27-54; § learners for normal labor turnover their control programs cannot become rates applicable under section 6 of the purposes (foundation garments). effective until July 1, 1953. In view -of Carbon Sportswear, Inc., 37 'West Ierteell act have been issued to the firms listed Street, Lansford, these circumstances, the said Declara- below. The employment of learners un- Pa., effective 5-29-53 to tion 5-28-54; for normal labor turnover, 10 learn' and Statement of Policy is hereby dev these certificates 2s limited to the ers (ladies' sportswear and dresses).

68 (74 of 135) Wednesday, June 10,Case: 1953 18-55682, 10/31/2018,FEDERAL ID: REGISTER 11068173, DktEntry: 24-2, Page 70 of 124 Carter & Churchill Co., Lebanon, 17. H., sonnel) (womon'a nylon undcrTer Car- nwed oz authorized or modied and effective 6---53 to 6-3-54; 5 learners for nor- ments). mal labor turnover (flannel shirts, ski cloth- omended; and if so, whether such zsrv- ing, hunting and utility clothing). Shoe Industry Learner Reaulationz ices should be operated by the carriers Cata Garment Co., 712 Linden Street, Al- (29 CPR 522.250 to 522.260, as amended prezcntly cartificated for such c-_=as lentown, Pa., effective 6-2-53 to 6-1-54; 5 March 17, 1952; 17 P.R. 1500) or by other carriers; and learners for normal labor turnover (blouses 2. Whether new and additional serv- Avonnac Shoe Co., cifc- and sportswear). Roachdale. Ind., Ices, as prorpozed by some of the aupli- Colonial Shirt Corp., Woodbury, Tenn., ef- tlve 6-2-53 to 6-1-54; 10 learncrs for normal labor turnover. cants, are reulred by the public con- fective 6-19-53 to 6-18-54; 10 percent of the venfence and neces ity. factory production workers for normal labor The following special learner certif- Notce Is furtbker given that any pzrson turnover purposes (men's cotton and rayon icate was =sued in Puerto Rico to the not a party to the proceeding des-g dress and sport shirts). company Colonial Shirt Corp., Woodbury, Tenn., ef- hereinafter named. The ef- to be heard in oppowltion to the matt.rs fective 6-1-53 to .11-30-53; 50 learners for fective and expiration dats, the number ,at forth in the c-a must file with the expansion purposes (men's cotton and rayon of learners, the learner occupations, the Board on or before June 22, 1253, a state- dress and sport shirts). length of the learmin period and the ment catting forth i:-=e of fact or lav Forest City Manufacturing Co., DuQuoln, learner wage rates are Indicated, re- vhich he desires to conteat. Any par- il., effective 5-23-53 to 10-18-53; 30 learners spectively. -on filin- such a statement may cppear for expansion purposes (junior and misses' ac- dresses). Pan Am Textiles Inc., Cagua, P. n.. cifeC- and participate at the hearing in Frackvile Manufacturing Co., Inc., Frack- tive 5-27-53 to 10-16-53; So learners; kniltte r, csrdanca with ^002.14 of the Procedural ville, Pa., effective 5-28-53 to 5-27-54; 10 160 hours at 30 cents r-er hour. 320 hours at Eeulations under Title IV of the Cvil percent of the factory preduction 32 cents per hour. 320 hours at 35 cents per Aeronautics Act. as aended. workers hour; for normal labor turnover purposes (flan- seamcro, 100 hours at 30 cents pe-r For further details of the proceeding nelette and cotton rayon nightshirts). hour, 320 hours at 32 cents per hour, 320 hours at 35 cents per hour; exmIner, 12:3 and i s"uz involved, Interested pers ns Harbor View Sportswear Co., 405 Main are referrcd to the applications m the Street, Gloucester, Mass., effective 5-28-53 hours at 32 cents per hour, 120 hour- at 35 to 5-27-54; 5 learners for normal labor turn- cents per hour; menders, ICO hours at-S0 consoidated proceeding, Board Orders over (men's and boys' sportswear). cents per hour, 1C0 hours at 32 ccnls per Nos. E-703 and E-7333, and to the re- hour, 10 hours at 33 cents per hour (full ports of the prehearin conference on Jaco Pants Inc., Ashburn, Ga., effective fashioned hosiery) 5-25-53 to 5-27-54; 10 percent of the factory (replacement certifleato). file with the Civil Aeronautics Board. production workers for normal labor turn- Each certificate has been iued upon Dated at Washington, D. C., June 6, over purpcses (men's dress pants). the employer's representation that em- IVW. otes & Son Inc, 1305 Main Street 1953. Lynchburg, ployment of learners at submlnimum Va., effective 6-2-53 to 6-1-54; rates 2s necessary in order to prevent Is=] F ;cs W. Bno , 10 percent of the factory production workers Clu! Exnz7mner. (nurses and maids uniforms). curtailment of opportunities for employ- Linwood Mills Inc., LaFayette, Ga., effec- ment, and that experienced worlkers for [r. n1. De,. Z3-5142: Fled, June 9, 1933; tive 5-29-53 to 11-28-53; 10 learners for ex- the learner occupations are not available. 8:51 a.m.] ,pansion purposes (sports shirts). The certificates may be cancelled in the The Moyer Manufacturing Co., 18-24 manner provided in the regulations and North Walnut Street, Youngstown, Ohio, as indicated in the certificates. Any effective 5-29-53 to 5-28-54; 10 percent of the factory production workers for normal person aggrieved by the issuance of any labor turnover purposes (men's slacks). of these certificates may seek a review Accr=z-T Occurtnr Nasa MrSH.L, Shelby Manufacturing Co., 660 East Jack- or reconsideration thereof within fifteen T= son Street, Shelbyville, Ind., effective 5-26-53 days after publication of this notice in to 5-25-54; 10 percent of the factory produc- the FEDERAL REGISISI pursuant to the tion workers for normal labor turnover pur- provisions of Part 522. In the matter of investigation of acci- poses (ladies cotton Wash dresses). Shenan Dress Corp., North Bower and Signed at Washington, D. C., this dent involing aircraft of United States Washington Streets, Shenandoah, Pa., effec- Ist day of June 1953. Registry N 28345, which occurred near tive 6-2-53 to 6-1-54; 10 percent of the Mrshall, Texas, on My 17, 1953. factory production workers for normal labor Mn-ou Bnooin, Notice Is hereby given, pursuant to the turnover (ladies' and misses' dresses). Authorized Representatirc Civil Aeronautics Act of 19'3, as Siceloff Manufacturing Co., Inc., East of the Adminfstrator. amended. particularly section 702 of said Second Avenue, Lexington, N. C., effective IF. 32 Dc. 53-5120; Filed, Juno 9, 1953; act, In the above-entitled proceadin; 6-2-53 to 6-1-54; 10 percent of the factory that hearing- Is hereby assigned to be production workers for normal labor turn- 8:40 a. in.) over (work pants, bib overalls, dungarees, held on June 17, 1953, at 9:00 a. m. work shirts). (local time) in the auditorium, Mercan- Spruce Manufacturing Corp., Second and CIVIL AEROMIAUTICS 0AD tile Ban Building, 106 South Ervay Spruce Streets, Sunbury, Pa, effective Street, Dallas, Texas. 6-12-53 to 6-11-54; 10 percent of the factory [Deckot No. 5031 et al. Dated at Washin-ton, D. C., June 2, production workers for normal labor turn- TRANs-PAcIFIc CERIICXI= RauuwLT--C 1933. over (ladies' underwear). CASE [Us"Ll Ror=. W Ciarxsp, Hosiery Industry Learner Regulations NOTICE OF HErli'G (29 CFR 522.40 to 522.51, as revised Pres ding Officer. In November 19, 1951, 16 F. R. 10733) the matter of the proceeding kmown [F. R. Dcc. 53-5141; Filed, June 9, 1033; as the Trans-Pacific Certificate Reneval 3:50 a. M.] Russell-Harvelle Hosiery Mills . -Inc., Plant Case. No. 2, Mount Gilead, N. C., effective 6-2-53 Notice to 2-1-54; 45 learners for expansion is hereby given, pursuant to the purposes. Civil Aeronautics Act of 1938, as FEDERAL COMAAUNICATIONS Russell-Harvelle Hosiery Mills, Inc., Plant amended, particularly sections 205 (a) No. 2, Mount Gilead, N. C., effective 6-2-53 and 1001 of that act, that a heliring in COMAISSION to 6-1-54; 5 learners. the above-entitled proceeding is aszlned [I3cclet 11co. 10471, 10472, 104731 to be held on June 22, 1953 at 10 a. M., Knitted Wear Industry Learner Regu- e. d. s. t., i Sou=nru. TMxwLmm0::, Ire., -T AL. lations (29 CFR 522.68 to 522.79, Room E-210, Temporary as Building No. 5. Sixteenth Street and OO1=1 COa:. unG HBI.~ amended January 21, 1252; 16 F. R. Constitution Avenue 11W, W".rhan-ton. 12865) In re applications of Southern Tele- D. C., before Examiner Thomas L. vision, Inc., Chattanooga, Tennezzee, 32icband Knitting ~lills, Inc., lichland. Wrenn. Dochet No. 10471. File No. BPCT-931, Pa., effective 5-23-53 to 5-27-5 5 learners Without limiting the scope of the is- Tri-State Telecasting Corporation, Chat- (men's and boys' knit polo shirts). sues presently In this proceeding, par- Van naalte Co., Inc., Main Street, Bristol. tanooga, Tennessee, Docket No. 10472, Vt.. effective 6-15-53 to 6-14-54; 5 percent ticular attention will be directed to: File No. BPCT-983; WDEF Broadcasting of the total number of factory'production 1. Whether the temporary Trans-Pa- Ing Company, Chattanooga, Tennessee, workers (not including ofice and sales per- cifle services now certificated will be re- Dockbet No. 10473, File No. BPCT-939; for

69 (75 of 135) Case: 18-55682, 10/31/2018,NOTICES ID: 11068173, DktEntry: 24-2, Page 71 of 124 construction permits for new television DommxCA REPUBUC T1 Probable (Into stations. lLocation Power (kw) . desigb at(on The hearing In this proceeding was C al Lcatonmo Rdl. lass to coln ico commenced pursuant to § 1.841 on Mon- letters • nation operation day, May 25, 1953, and various matters were discussed and certain actions were 610 kilocycles tentatively decided upon. An order after HI8B ---- -ella Vista (Santiago), 19-28 N., 70-42 1 U ND II uno 1, 102. W. (Present Assignment: 0.iN/1D, pre-hearing conference will be prepared 1360 kc, II/D, IV/N). 1360 kilocycles at or after the further conference which is hereinafter ordered to be held on June HI3 ------San Pedro Do Macons, 18-26 N., 68-18 0.5 U ND III January, 1953. W (Present Assignment: 0.5 kw, 15, 1953. 1380 kc, Ini). 1330 Counsel for all parties and for the kilocycles 116T---- Santiago, 1-28 N., 70-42 W (Present 0.5NJiD U ND III lono 1, 1052. Chief of the Broadcast Bureau agreed to Assignment: 1 lcwi, 610 kc, II). participate cooperatively in the preparation of written stipulations of facts concerning: the identity, business interests FEDERAL COIMrUNICATIONS COMMISSION, [SEAL] T. J. SLOWIE, and backgrounds of the principals who Secretary. compose the several applicants; the program service proposed by each applicant [F.'R. Doc. 53-5139; Filed, June 9, 1953; 8:50 a. m,] as affected by the assumed availability of network affiliation agreements; and [Docket No. C-21531 other factual and procedural matters FEDERAL POWER COMMISSION which can be so agreed upon as to dis- [Docket No. E-64761 MissIssipPI RIVER FUEL CoRP. pense with or limit the extent and nature NOTICE OF OPINION NO. 253 AND ORDER of proof to be offered at the hearing COMSIMUNITY PUBLIC SERVICE CO. The proposed stipulations will 'be con- NOTICE OF EXTENSION OF TIIE JUNE 4, 195, sidered at the further conference. Notice Is hereby given that on Juno 3, All counsel will also participate co- JUNE 3, 1953. 1953, the Federal Power Commission operatively in the preparation and flpon consideration of the request of issued Its memorandum opinion and submission of a draft of an order after Community Public Service Company, order adopted June 2, 1953, In the above- prehearing conference which will be filed June 3, 1953, notice is hereby given entitled matter, accepting proposed set- considered at the further conference that an extension of time is granted to tlement, making effective tariff changes, hereinafter ordered. and including July 3, 1953, within which and terminating proceeding, upon.con- Each applicant plans to take deposi- Applicant shall consummate the trans- ditions specified in the order. tions to be completed by July 3, 1953, it actions authorized by the order entered March 5, 1953 and issued March 6, 1953, rSEAL] LEON M. FUQUAV, being tentatively contemplated that the Secrctaryj. hearing of testimony may be commenced in the above-designated matter. [F. n. DoC. 53-5125; riled, Juno 9, 1053; on or after July 20, 1953. [SEAL] LEON M. FUQUAY, 8:47 a, m.] A petition for leave to amend filed by Secretary. Tr-State Telecasting Corporation on [F. R. Dce. 53-5135; Fled, June 9, 1953; May 22, 1953, is pending, and it was 8:49 a. m.] agreed that the parties may have until [Project No. 12501 Monday, June 1, in which to file opposi- CITY- OF PASADENA, CALIF tion thereto. Many other procedural and substan- [Docket'No. F-6498] NOTICE OF ORDER GRANTING EXEMPTION FROM PAYMENT OF ANNUAL CHARGES tive matters involved in this proceeding IOWA PUBLIC SERVICE Co. JUNE were extensively discussed, but the de- NOTICE OF SUPPLEMENTAL ORDER 4, 1953, lineation of those matters and the results Notice is hereby given that on Juno of the discussions will be set out in the JuNE- 4, 1953. 3, 1953, the Federal Power Commission contemplated order after pre-hearing Notice is hereby given that on June 3, Issued its order adopted June 2, 1953, conference. A further conference is nec- 1953, the Federal Power Commission is- granting exemption from payment of an- essary to achieve the objectives of § 1.841, sued its order adopted Juiae 3, 1953, au- nual charges In the above-entItled thorizing issuance of securities in the matter. and therefore: above-entitled matter. It ts ordered, This 29th day of May [SEAL] LEON M. FUQUAY, 1953, that this. matter is continued for [SEAL] LEON M. FUQUAY, Secretary, * / Secretary. further conference until Monday, June [F. R. Doc. 53-5120; riled, Juno 9, 1063, 15, 1953, at the hour then established [F. R. Doc. 53-5123; Piled, June 9, 1953; 8:47 a. m.] by Commission'policy and practice for 8:47 a. an.] the commencement of hearing proceedings. [Project Nos. 2000, 21211 FEDERAL COMMUNICATIONS COinUSsION, [Docket Nos. G-2115, G--2146] POWER AUTHORITY or THE STATE or NEW [SEAL] T. J. SLOWIE, EL PASO NATURAL GAS CO. AND EAST YORN AND PUBLIC POWER AND WATER Secretary. TENNESSEE NATURAL GAS Co. CORP. [F. R. DOc. 53-5138; Filed, June 9, 1953; NOTICE OF FINDINGS AND ORDERS ORDER FOR ORAL ARGUMENT 8:50 a. in.] JUm 4, 1953. Exceptions to the decision of the Pro- Notice is hereby given that on June 3, siding Examiner in the matters of the 1953, the Federal Power Commission applications of the Power Authority of [ChangeList No. 14] issued its orders adopted June 2, 1953, the State of New York, Project No. 2000, DoLLINIcAN REPUBLIC BROADCAST issung certificates of public convenience and Public Power and Water Corpora- and necessity m the above-entitled tion, Project No. 2121, Issued May 12, STATIONS matters. 1953, have raised many issues of law and LIST OF CHANGES IN ASSIGNMENTS fact with respect to the denial of the [SEAL] LEON M. FuQUAY, application for license for Project No, APRIL 29, 1952, Secretary. 2121 to the above-named company and Notification of changes in Dominican [F. ,.Doc. 53-5124; riled, June 9, 1953; the granting of license for Project No, Broadcasting Stations: 8:47 a. D.] 2000 to the Power Authority of the State

70 (76 of 135) Wednesday, June 10, Case: 1953 18-55682, 10/31/2018,FEDERAL REGISTERID: 11068173, DktEntry: 24-2, Page 72 of 124o1 Po.or- Company, Weymouth 1light and of New York, under the Federal Power expenses, $3,500; Trustees Fees, $0.000: filing fees and Federal issue tar. 37,000 Power Company, Worcester Csunty Act. Elctric Company, Icw En7ln1 Eleatria the many and important and miscellaneous expenses, ,5,500. In view of or Syzt:-m; File lio. 70-397G. of law and fact in the briefs The filing also states that no State issues raised the Notice is hereby given that a joint and exceptions filed by the numerous Federal regulatory body, other than Board of Public Utility Commissioners declaration has ben filed v.th this Com- interveners and the parties to the respec- mission, puruant to the Public Utility applications, and in order to become of the State of New Jersey and this Com- tive over the pro- Holding Company Act of 1933 (the more fully appraised of the merits of mission, has jurisdiction posed transaction and that the issuance "ac") by New England Electric System the issues presented, the Commission ("IEMS") a registered holding com- best interest of the and sale of bonds wmiI be solely for the finds: It is in the of pany, and by Its above named subzidiary public that oral arguments be heard be- purpose of financing the bsines NJP&L, and has been espre'ly author- companies, hereinafter individually re- fore the Commission. ized by the Board of Utility Comml- ferred to as "'Amesbury- "Attiaeoro" The Commission orders: Oral argu- Jersey, "Haverhill" "Quhny" "Weymouth" and on the exceptions taken to the sioners of the State of New ments subject to the issuance by such State "Worcezter" and collectively referred to Presiding Examiner's decision in the cs the "borrowin compames" Sea- before conmssion of a further certificate in the above-entitled matters be held results of competitive bid- tlonz 6 (a) 7, 9 (a) 10, and 12 (f) of the on June 15,1953 at 10:00 light of the the Commission ding. It is requested that the Commls- act and Rules U-23, U-42 (b) (2) U-43 a. in., e. id.s. t., in the Commission's Hear- become effective upon (a), U-43 (b) (1) and U-59 (a) (3) Washing- sion's order ing Room, 441 G Street NW., issuance. thereunder have been designated by the ton, D. C. Due notice having been given of the Declarants as applicable to the proposed Adopted: June 2, 1953. filing of the application and amend- transactions, which are simmaned as and a hearing not hav- follows: 4, 1953. ments thereto, Issued: June ing been requested or ordered by thO The borrowing companies propoZa to By the Commission. Commisson; and it appearing that fur- Issue to N=S, from time to time but ther data is required with respect to the not later than July 31, 1953, uimacurcd [SEAL] LEox AL FuQUAY, : aggregate prin- Secretary. fees and expenses of counsel for NJP&L promizsory notes in the and of counsel for the succezful bidder elpal amount of $7,500,009 and in the JF. ',. Doe. 53-5127; Flied, June 9. 1953; for the bonds; and the Commiszion find- following individual amounts: Amesbury, 8:48 a. i.] mg with respect to said application, as 51-5,00; Attleboro, q555,099; Haverhill, amended, that the applicable ctandards $800,600; Quincy, $1,0C0,000; Weymouth, of the act and the rules are catisfied $1,050,000; and Worcester, $3,500,030. SECURITIES AND EXCHANGE and that it is not necessary to impose As at May 20, 19-3, the borro.-Tng COMIASSION any terms or conditions other than those companies had outstanding notes pay- set forth below, and the Commission able to ban!-- in the aggregate pricipa [File No. 70-3036] deeming it appropriate that'said appl- amounts of $7,390,000 and, vth the ex- NEw JERsE PowaR & LiGaT Co. cation, as amended, be granted forth- ception of Amesbury, are authorized by with, subject to the reservation of Juris- the Commission to make, and propose to ORDER AUTHORIZING ISSUANCE AND SALE diction hereinafter provided: L mak-e, additional borrowings from bank OF BONDS It .s orAfred, Pursuant to Rule U-23 prior to June 30, 1953. The proceeds to JuxE 4, 1953. and the applicable provisions of the Act, be derived from the notes proposed to that said application, as.amended, be, be Iscsud to I1TEES w-, be used by the New Jersey Power & iaght Company sub- borrow,'ing companies to pay such note public utility subsidiary and it hereby is, granted forthwith, ("NJP&L") a to the conditions prescribed In Rule Indebtednezs to banks and after said is- General Public Utilities Corporation ject of U-24 and to the following additional suance of notes to NEES, none of the ("GPU") a registered holding company, borrowing companies will have, or will application and amend- terms and conditions: having filed an (1) That the proposed Issuance and be authorized by this Commission to ments thereto, pursuant to the Public have, any such note indebtedness to Holding Company Act of 1935 sale by NJP&L of bonds shall not be con- Utility summated until the results of competi- banks, ePxcept Worcester, which will have ("act") particularly section 6 (b) $1,100,000 principal amount of such notes with tive bidding shall have been made a, thereof and Rule U-50 thereunder proceeding and a outstanding with three local bank-s. the following proposed trans- matter of record In this respect to further order shall have been issued in Each of the note proposed to be is- actions: sued to NEES will mature six months and sell, sub- the light of the record so completed, NJP&L proposes to issue contain such further from the Issue date thereof and wil bear competitive bidding require- which order may ject to the terms or conditions as may then be the came interest rate as the notes bei- ments-of Rule U-50, $5,500,000 principal paid off as long as such notes would have -_ deemed appropriate; amount of First Mortgage Bonds, be reserved with been outstanding by their terms and due May 1, 1983, to be (2) That jurisdiction Percent Series, respect to the fees and exenases of coun- thereafter each of the proposed notes issued under and secured by NJPL's will bear interest at the prime interest 1944, as sel for NJP&L and of counsel for the -indenture dated as of March 1. successful bidder for the bonds. rate at the Izsue date thereof. It is heretofore supplemented and to be sup- stated that 3%A percent per annum is plemented by an indenture to be dated By the Commission. the preznt prime interest rate charg-ed as of May 1,1953. The interest rate and by ban7 on notes Similar to the pro- are to be [r=,] NELL= A. THor .. the Drice to be paid to NJP&L Assistant Sccrctarj. posed notes. In the event that such determined by the competitive bidding, prime interest rate is in excess of 31 except that the invitation for bids will Jr. n. Doec. 53-51=9; Fled, Juno 9, 1953; percent per annum at the time any of specify that the price to the company 8:43 a. m.] the proposed notes are to be Issued, at shall be not less than 100% nor more least five days prior to the issuance of than 102.75% of the principal amount. raid note or notes the Issung company The filing states that the proceeds or companies and IEES will file an from the sale of the bonds will be used [FlI No. 70-30761 amendment to this filing setting forth to repay $3,545,000 of short-term notes Ar,s nuy F,ur aj c TrcaT Co. rT a., the terms of the note or notes and the and to finance, in part, NJP&L's con- rate of interest. It is requested that struction program, including the reim- NOTICE EEGARDI=G PROPOSED T5 IssUEs any such amendment become effective bursement of its treasury for expendi- BY SUBSIDIAIES AND ACQUISITION OF at the end of said five day period unless tures made therefrom for such purpose. SAID NOTES BY PAI'IE1T COU.P= prior thereto, the Commission notifies The estimated fees and expenses to be Jum 4, 1953. NMIS or the Issuing company or com- in connection with the pro- incurred In the matter of Amesbury Electric panies to the contrary. posed transactions aggregate $57,000. and Each of the borrowing companies pro- com- Light Company, Attleboro Steam including legal fees and expenses of Electric poses that if any permanent financng in the amount of $8,000; Electric Company, Haverhill pany counsel Company, Quincy Electric Light and is done before the maturity date of any printing, $27,000; accounting fees and

71 (77 of 135) 3302 Case: 18-55682, 10/31/2018,NOTICES ID: 11068173, DktEntry: 24-2, Page 73 of 124 of the notes proposed to be issued, it 1935 ("act") and Rule U-45 of the rules act, or the Commission may exempt such will apply the proceeds therefrom m re- and regulations promulgated thereunder. transaction as provided in Rule U-20 (a) duction of, or in total payment of, notes All interested persons are referred to and Rule U-100 thereof. then outstanding, and the amount of said application-declaration which is on authorized but unissued notes, if any, file in the office of this Commission for By the Commission. willbe reduced by the amount, if any, by a more detailed statement of the trans- [S ] NELLYn A. Tuonsni. which such permanent financing exceeds action therein proposed, which is sum- Asszstant Secretary. the principal amount of the then out- marized as follows: IF. R. Doe. 53-5130: Filed, Juno 9, 1963: standing notes. Columbia, which owns all of the out- 8:48 a. n.] It is stated that incidental services in standing securities of United Fuel (ex- connection with the proposed note issues cept for two shares of common stock) will be performed, at cost, by New Eng- proposes to make a cash capital con- SMALL DEFENSE PLANTS land Power Service Company, an affili- tribution to United Fuel in the amount ated service company, such cost being of $2,000,000. Columbia will increase its ADMINISTRATION estimated not to exceed $150 for NEES investment in the common stock of iS. b. P. A. Pool Request 19] and each of the subsidiary companies, or United Fuel by $1,999,989.51 and will an aggregate of $1,050. It is further charge $10.49 (the amount of the con- ADDITIONAL COMIPANIES ACCEPTINO VE- stated, that no State commission .orFed- tribution which is applicable to. the QUEST TO PARTICIPATE IN- OPERATIONS OF eral commission, other than this Com- minority interest) to operating expense. WIscONSIN MANUFACTURERS' DmErNsrl mission, has jurisdiction over the pro- United Fuel will credit $2,000,000 to its POOL, INC., OF MILWAUKEE, WiS, posed transactions. capital surplus. Pursuant to section 708 of the Defense It is requested that the Commission's. United Fuel will issue and sell at par Production Act of 1950, as amended, the Order herein become effective forthwith to ColUmbia $4,200,000 principal amount names of the following companies which upon issuance. of installment promissory notes, which haveaccepted the request to participate Notice is further given that any in- notes will be due in equal annual in- in the operations of the Wisconsin Man- terested person may, not later than June stallments on February 15 on each of the ufacturers' Defense Pool, Inc. of Mil- 22, 1953, at 5:30 p. in., e. d. s. t., request years 1955 to 1979, inclusive. The notes waukee, Wisconsin. are herewith pub- the Commission in writing that a hear- are to bear interest at the rate of 4 lished. The original list of companies ing be held on such matter, stating the percent per annum or such lower rate, accepting such requests was published nature of his interest, the reason or rea- being a multiple of % of 1 percent, as on January 15, 1953, in 18 V R. 340. sons for such request and the issues, if shall be not less than the "cost of money" Accurate Pattern Co., 712 South Twelfth any, of fact or law proposed to be con- to Columbia in respect of debentures Street. Milwaukee, Wis. troverted, or he may request that he be anticipated to be issued and sold later Badger Northland, Inc., 215 West Second notified if the Commission should order this year. Prior thereto, the notes will Street, IKaukauna, Wis. a hearing -thereon. Any such request bear interest at the rate of 4 percent per. "waukeeElectro-Coatings, Inc., 214 North Mil- should be addressed: Secretary, Securi- annum. Street, Milwaukee, Wig. ties and Exchange Commission, 425 Sec- It is stated that the proposed trans- Green Bay Box Co., P 0. Box 610, Green ond Street NW., Washington 25, D. C. actions are to be consummated in order Bay, Wls. At any time after said date, Green Bay Foundry & Machine Works, 401 the joint to provide United Fuel with- the funds South Broadway, Green Bay, Wis. declaration, as filed or-as amended, may required to complete the financing of its Interior Woodwork Co., 019 West Bruce be permitted to become effective as pro- 1953 construction program and purchase Street, Milwaukee, Wis. vided in Rule U-23 of the rules and reg- of "cushion" -as in connection with its Libert Machine Co., 324 North Roosevelt ulations promulgated under the act, or gas storage program. Street Milwaukee, Wis. the C6mmission may exempt such trans- It is estimated that United Fuel and Luitink Manufacturing Co., 3374 Wet actions as provided in Rules U-20 and Hopkins Street, MilwaUkee, Wis, Columbia will incur expenses of $4,870 -Milwaukee Malleable & Grey Iron Works, U-100 thereof. 'and $150, respectively. 2773 South Twenty-Ninth Street, Milwaukee, By the Commission. United' Fuel has made an application Wls. to the Public Service Commission of West Modern Engineering Co., Inc., 216 West [SEAL] NELLYE A. THORSEN, Virginia for approval'of the issuance of North Avenue, Mllwaukeo, Wis. Assistant Secretary. notes and receipt of the cash contribu- Neenali Foundry Co., Neenah, Wis. [F R. Doe. 53-5128; Filed, June 9, 1953; tion. The order to be issued therein will Northern Engraving'& Machine Co., 1210 8:48 a. m.] Velp Avenue, Milwaukee, Vile. be supplied by amendment. Plymouth Industrial Products, Inc., Mill Notice is further given that any inter- Street at Ea.tern Avenue, Plymouth, Win, ested person may, not later than June Louis Reinke Sheet Metal Works, Inc., 620 18, 1953, at 5:30 p. in,, request the Com- South Fifth Street, Milwaukee, Wis, [File No. 70-3080] mission4n writing that a hearing be held Standard Machine Co., 6545 West State INC., on such matter, stating the nature of his Street, Milwaukee, Wis. COLMTBIA GAS SYSTEM, AND UNITED M. J. Wallrich & Lumber Co. Slawano, FUEL GAS Co. interest, the reasons for such request and the issues of fact or law, if any, Wis. NOTICE REGARDING CASH CAPITAL CONTRIBU- Weasldr Engineering &Mfg. Co., P 0. Box raised by the said 'application-declara- 275, West Bend, Wis. TION BY PARENT COMJPANY AND-ACQUISI- tion which he desires to controvert, or Wells Manufacturing Corp., 2-20 South TION OF SECURITIES OF SUBSIDIARY may request that he be notified if the Brooks Street, Fon du Lac, Wis. JUNE 4, 1953. Commission should order a hearing (Sec. 708, 64 Stat. 818, Pub. Law 90, no Notice is hereby given that The Co- thereon. Any such request should be ad- amended by Pub. Law 429, 82d Cong., 60 lumbia Gas System, Inc. ("Columbia") dressed: Secretary Securities and Ex- U. S. C. App. 2158; E. 0. 10370, July 7, 1052, a registered holding company, and its change Commission, 425 Second Street 17 F. Rt. 6141) NW., Washington 25, D. C. At any time public utility subsidiary, United Fuel Gas Dated: June 4, 1953, Company ("United Fuel") have filed a after said date, said application-declara- joint application-declaration with this tion, as filed or as amended, may be Y. BRYNILDSSEN, Commission pursuant to the provisions granted and permitted to become effec- Acting Administrator of sections 6 (b)-9, 10 and 12 (b)of the tive as provided in Rule U-23 of the rules IF. R. Doc. 53-5136; Filed, Juno 9, 10531 Public Utility Holding Company Act of and regulations promulgated under the 8:49 a. in.]

72 (78 of 135) Case: 18-55682, 10/31/2018, ID: 11068173, DktEntry: 24-2, Page 74 of 124

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Citation: 21 Fed. Reg. 4949 (1956), Wednesday, July 4, 1956, pages 4943 - 4994

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72 (79 of 135) Wednesday, July Case: 4, 1956 18-55682, 10/31/2018,FEDERAL ID: REGISTER11068173, . DktEntry: 24-2, Page 75 of 124 49,49 From *Farina INT, Ill.;to Vandalla, 11, From Ranch INT, Ariz, via E alter.; to From Chattanooga. Tenn, VOR; to Smith- VOR; IEA 2,000. *3,100---MRA. Prescott, Aria., VOR via E alter.; 1-A 9.000. ville INT,Tenn.; MBA 4,400. From Evansville, Ind, VOR via E alter.; Prom Smithville 3NT, Tenn.; to *Hartsville to Vandalia, nL, VoR via E alter.; MA Section 610.6120 VOR Civil Air ay 120 INT, Tenn.; MR& *4,000. *5,000-MRA. 2.O. Is amended by adding: _003,500-MOCA- From Springseld, 11, VOR; to Peoria nL, From Augusta INT, Mont.; to *Great Falls, From Hartsv.ile INT, Tenn.; to Bowling VOR; MEA2,050. Mont., VOR eastbound only; MEA 7.000. Green. y.. VOR; MEA *.,000. '3,500- From Peori Ill. VOR; to Bradford, 31L, 0,800-MCA Great Pails VOR, eastbound. MOCA. VOR; MEA 2,000. VOR; to Moline, IDL., Section 610.6134 VOR Civil Airway 134 Section 610.6404: Hawaii -VOR Civil - From Bradford, nL, in part: VOR; "MA 2,000. is amended to read in part: Airway. 4 is amended to read From Barbers Point, T. H., TM; to Hono- 66 Prom Evergreen, Ala., VOR; to *Shady Section 610.6066 VOR Civil Airway lulu, T. H., VOR; MEA 2,000. is amended to read in part: GroveINT, Ala.; MA "03,600. "3,500-l4nA. 0 '2,100-MOCA. (Sec. 205, 52 Stat. 984, as-amended; 49 U. S. C. irom *San Diego, Calif.. VOR; to Jamul, From Shady Grove INT, Ala.: to Columbus, 425. Interpret or apply sec. 601, 52 Stat. Calif, LF/RBN; MEA 8,000. -4,000--WCA Ga. VOR; MBA '3,600. "2,100--MOCA. 1007, as amended; '49 U. S C. 551),7 -- San Diego VOR, eastbound. From Jamul, Calif., LP/RBN; to *Seeley Section 610.6140 VOR Civil Airway 140 These rules shall bccome effective July INT, Calif., MBA "*13000. *10,000-MCA is amended to read in part: 26, 1956. o Seeley INT, westbound. "8.000-MOCA. Prom Nashville, Tenn., VOR; to *Harts- From Seeley INT, Calif.; to Fuma, Ari., [sEAL] JAms T. PYLE, vill0 3INT, Tenn.; MEA "*5,000. '5,000- Acting Administrator VOR; IMA '8,00; -4,000-MOCA., MRA. "3.400-MOCA. From Barrett Lake, Calif., FM to Jamul, From Hartsville INT, Tenn.; to Corbin, Ky. 'o Civil Aeronautic. Calil, LP/RBN, westbound only; IMEA 6.000. VAR; MBA '5,000. '3,400-MOCA. Prom JamuL Calif. LP/RBN; to San DICe. [F. R. Doc. 56-5278; Filed. July 3, 1956; Calif, VOR, westbound only; MEA 4,500. Section 610.6154 VOR Civil-Airway 154 8:45 a. rm]- Section 610.6068 VOR Civil Airway 68 is amended to read in part: is amended to read in part: Prom Columbus, Ga., VOR; to *'Hamilton INT, Ga.; NIA 1.800. '2,400-MRA. TITLE 29-LABOR From Corpus Christi, Tel., VOR; to Rings- Fom Hamilton InT, Ga.; to 'Junction City Chapter V-Wage and Hour Division, vile 3INT, TeiL; MEA 1,700. INT, Ga.; MrA "3,000. '3,000-M A. From nigsvllle INT, Tem.; to Brownsville, 0 ,2.400-MOCA. Department of Labor Tex, VOR; MA 1,40. From Junction City INT, Ga.; to Macon, Ga. VOR; MEA '3,000. '2,400-MOCA. PART 718-OvERTImE CozwENsATIQo Section 610.6077 VOR Civil Airway 77 is amended to read in part: Section 610.6174 VOR Civil Airway 174 3MSCELLANEOUS AIE:NMENTS Prom San Angelo, Te, VOR; to Abliene, is amended by adding: Tex. VOR; XdEA 3,800. Pursuant to authority under the Fair From Scotland, Ind., VOR; to 'Mitchell Labor Standards Act of 1938 (52 Stat. Section 610.6095 VOR Civil Airway 95 INT, lnd.; MEA 2.000. '3,000-1M1A. - 1060, as amended; 29 U. S. C. 201 et seq.), is amended to read In part: Section 610.6185 VOR Civil Airway 185 and General Order No. 45-A (15 F. R. From *Phoenix, Ariz., VOR to Verde River is amended to delete: 3290), Part 778, Subchapter B, Title 29, INT, Ariz, northbound, MEA,11.000; outh- From Scotland, Ind., VOR; to 'Mitchell Code of-Federal Regulations, is amended bound, MEA 7,500. '7,000-MCA Phoenix INT. Ind.; MEA 2,000. Via E alter.; MEA as follows: VOR, northeastbound. 8,000. '3,000-MRA. 1. Section 778.0 (a), 20th line, delete From Verde River =,T, Aria; to Winslow, the word "new". Ariz, VOR; MEA 11,000. Section 610.6185 VOR Civil Airway 185 2. Footnote I to § 778.0 (a)- is amended Is amended by adding: Section 610.6097 VOR Civil Airway 97' to read: Is amended to read iffpart: From Aahdvllle, N. C., VOR via E alter.; to 129 U. S. C. 201-219, 251-262. Ottway INT, Tenn., via E alter.; MBA 8,000. From Albany. Ga., VOR; to *Junction City, 3. Footnote 2 to § 778.0 (a) is amended I", Ga.- WEA * '3,500. '3,000-RRA. Section 610.6194 VOR Civil Airway 194 to read: 0 *1.600-MOCA. s amended to read in tart: S. C. 201-208, 211-217. Frorq Junction City INT, Ga.: to Concord From Rocky Mount, N. C.; VOR; to Cofleld, 229 U. INT, Ga.; AdEA '2,800. -2,200--OCA. N. C, VOR; MEA 01,400. 1.200--MOCA. " is From Concord INT, Ga.; to Atlanta, Ga., Prom Cofleld, N. C., VOR; to Norfolk, Va., 4. Footnote 4 to § 778.0 (a) amended VOR; MEA 02,500. 2.000-MOCA. ILS Loc.; ME& 1.500. to read: From Noreross, Ga., VOR via E alter.; to Silver City INT, Ga-, via E alter.; MEA 3,000. Section 610.6208 VOR Civil Airway 208 ' 29 U. S. C. 251-262. From Silver City INT, Ga., via E alter.; to Is amended by adding: Barrs 3nT, N. C., via E alter.; MEA 6,800. 5. Footnote 6 to §778.0 (e).is amended From mrris INT, N. C., via E alter.; to Prom Oceanside, Calif., VOR; to Mesa to read: 'Jnasar INT, Tenn., via E alter.; MEA 7,600. Grande INT, Calif., eastbound, MEA 9,000; MBA 7.000. 05,000-MCA Ocean- ' Section 16 (c) of the Fair Labor Standards 07,ODO-MCA Rasar INT. southbound. westbound, Amendments of 1949 (set out as noteunder From Cross City. Fi., VOR via E alter.; to Aide VOR, eastbound. 29 U. S. C. 208) provides:- Talahasse, Flea.,VOR via E alter.; IMA 1,500. Prom Mesa Grando , Calif.; to 'Ther- Any order, regulation, or interpretation of From Lak Forest INT IL; to Fox Lake mal, Calif.; VOR; MEA 11,000. '11,000- the Administrator of the Wage and Hour MIT, 1L,;119A '3,600. -2,100-MOCA. MCA Thermal VOR, southwestbound. Division or of the Secretary of Labor, and. 105 Section 610.6240 VOR Civil Airway 240 any agreement entered nto.by the Adminis- Section 610.6105 VOR Civil Airway trator or the Secretary, in effect under the is amended to delete: Is amended to read: provisions of the Fair Labor Standards Act From Phoenix, Aria., VOR; to Xnob INT, Prom 'Dog INT, La.; to Mobile, Ala., VOR; of 1938, as amended, on the effective date of Aria., northbound, MBA 8,000; southbound, M oA"1,500. '3,900--MA. "*l,40G- this act, shall remain in effect as an order, MEA 6,500. MOGCA. regulation, interpretation, or agreement of the Administrator or the Secretary, as the From Knob =INT,Aria; to Ranch ]NT, Aria; 241 IdEA 8,000. Section 610.6241 VOR Civil Airway case may be, pursuant to this act, except to From Ranch INT, Ariz.; to Prescott, ArL, Is added to read: the extent that any such order, regulation, VOB; dFA 9,000. interpretation, or agreement may be incon- From La Grange INT, N. C.; to Cofleld, sistent with the provisions of this act, or may Section 610.6105 VOR Civil Airway 105 H. C., VOR; MEA '3,000. '1,400-MOCA. from time to time be amended, modified, or is amended by adding: rescinded by the Administrator or the Sec- Section 610.6242 VOR Civil Airway 242 retary, as the case may be, in accordance with From Phoenix, ArIz, VOR; to Prescott, Is amended to read: the provisions of this act. IEA-10,000. AriaVOR; From Mobile, Ala., VOR; to Eon Secour From Phoenix, Aria, VOR via E alter; to 6. In footnote 12 to §'78.3 (a), de- Knob INT, Aria., via E alter, northbound, INT, Ala.; MEA 1,600. -lete the number'and word "75 cents" IdEA 8,000; southbound, 0500., and insert in place thereof the symbol From Knob XINT Ariz., via E alter.; to Ranch Section 610.6243 VOR Civil Airway 243 'niT. Ariz., via Z alter.; MEA 8,000. Is added to read: and number "$1.00."

73 (80 of 135) Case: 18-55682, 10/31/2018,RULES -AND ID:REGULATIONS 11068173, DktEntry: 24-2, Page 76 of 124 7, Section 778.3 (b) (1) Is amended to short of the amount that would be earned. 10, Section 778.3 (b) (5) is amended read: for the total hours at the guaranteed to read: rate, the employee is paid the difference. (1) Hourly rate employee, If the em- ,(5) S'd a r i e d employees; irregular In such weeks the employee is in. fact hours. If an employee earns $66 per ployee is employed solely on the basis of paid at an hourly rate and the minimum a single hourly rate, the hourly rate is week'with the 'understanding that, the hourly guaranty which he was paid is salary is to, cover all hours worked and his "regular rate." For his overtime his regular rate in that week. In the work he must be paid, in addition'to his if his hours of work fluctuate from Week example just given, if the employee was to week, his regular rate of pay will vair straight-Lime hourly earnings, a sum guaranteed $1.50 an hour for productive determined by multiplying one-half the -from week to Week and will be the aver- working time, he would -be paid $69 ,age hourly -rate each week. Suppose lourly rate by the number of hours (46 X $1.50) for the 46 hours of produc- worked in excess of 40 in the week; that during the course. of four weeks the tive work (instead of.,the $66 earned at employee works 40, 44, 50, and 47 hoprs. Thus, a $1.40 hourly rate will bring, for piece rates). In a week. in which no' an employee who works 46 hours, a total His regular hourly rate of pay in each waiting time Was involved, he would be of these weeks is approximately $1.65, Wveekly wage of $68.60 (46 hours at $1.40 owed an additional 75 cents (half-time) plus 6 hours at 70 cents). In other $1.50, $1.32, and $1.40, respectively. for each of the 6 overtime hours worked, Since the employee has already'received words, tlhe employee is entitled to be paid to bring his-total compensation up to an amount equal to $1.40 an hour for 40 straight-time compensation on a salary $73.50 (46 hours at $1.50 plus 6 hours at basis for all hours worked, only addi- hours and $2,10 an h6ur for the- 6 hours 75 cents or 40 hours at $1.50 plus 6 hours. of overtime, or a total of $68.60. tional half-time pay is due. For the first at $2.25). If he is paid at a different rate week the employee is entitled to be paid If, In addition to the earnings at the for waiting time, his regular rate is the hourly rate, a production, bonus of $4.60 $66; for the second week $69 ($66 -plus weighted, average of the two hourly 4 hours at 75 cents) or (40 hours at is paid, the regular hourly rate of pay rates.". Is $1,50 an hour (46 hours at $1.40 yields ,$1.50 plus 4 hours at $2.25) ; for the third $64.40; the addition of the $4.60 bonus 9. Section -778.3 (b) (4) is amended week $72.60 ($66 plus 10 hours at 66 makes a total of $69; this total divided to read: cents) or (40 hours at $1.32 plus 10 hours at $1.98) ; for the fourth Week approxi- by 46 hours yields a rate of $1.50). The If employee Is then entitled to be paid a (4) Salaried employees-general. mately. $70.90 ($66 plus 7 hours at 70 the employee is employed solely on a cents) or (40 hours at $1.40 plus 7 hours total wage of $73.50 for 46 hours (46 weekly salary basis, his regular.hourly hours at $1.50 plus 6 hours at 75 cents, 'at $2.10). at rate of pay, on which time and a half or 40 hours at $1.50 plus 6 hours must be paid, is computed by dividing - 11. In §-778.3 (c) delete the num- $2,25). the salary by the number of hours which ber and word "75 cents" and insert In 8. Section 778,3(b)(2) is amended to the salary is intended to compensate. If place thereof' the symbol and number - read: . an employee is hired at a salary of $56 "$1.00". second employee and if it is understood that this salary is 12. Section 778.5 (b), delete the (2) Pieceworker. When an compensation for a regular workweek of paragraph which begins with word is employed on a piece-rate basis, his "Thus", and ends with the word "act", regular hourly rate of pay is computed 35 hours, the employee's regular rate of his total weekly pay is $56 divided by 35 hours, or $1.60 .and-insert in place thereof the following: by adding together overtime' earnings from piece rates and all other and hour, and when he works - Thus, if an employee is hired at the sources (such as production bonuses) he is entitled to-receive,$1.60 for each of rate of $1.20 an' hour and receives, as and any sums paid for waiting time or the fi'st 40.hours and $2.40 (one and one- overtime compensation under his con- other hours worked (except statutory half, times $1.60) for each hour there- tract, $1.60 per hour for each hour actu- exclusions). This sum' is then divided- after. If an employeeis hired at a.salary ally worked in excss 'of 8 per day, his of $56 for a 40-hour week, his regular employer, may credit the total of the extra by the number of hours worked in the ' week for which such compensation was, rate is,$lA-an.hour, .If his salary is $56 '40-cent payments' thus made for dalk, paid, to yield the pieceworker's "regular 'for a 50-hour week, -his.-regular- rate is overtime hours against the overtime rate" for that week. For his overtime .$1.12 per hour. -Where the-salarybovers ,comfpehsation which is due under the work the pieceworker Is entitled to be a period longer than a workweek, such statute.for hours in excess of 40 in that paid, in addition to his total weekly as a month, -it must be reduced to its workweek.- It the same contract further earnings, a sum equivalent to one-half ,workweek equivalent. A monthly salary provided for the payment of $2 for hours this regular rate of pay multiplied by is subject to translation to its equivalent 'in excess'of 12 ter day, the extra 80-cent the number of hours worked in excess .weekly wage by multiplying by 12 (the payments could likewise be credited' td- of 40 in the week." Only additional number of months) and dividing by 52 ward overtime- compensation due under half-time pay is required in such cases (the number of weeks). A semimonthly the act. Similarly, where the employee' uiince the employee has already received salary is translated into its equivalent normal or regular daily or weekly work- straight-time compensation at piece weekly wage by multiplying by 24 and ng hours are greater or less than 8 hours rates for all hours worked. Thus, if the :dividing by 52.' Once the weekly wage is -and 40 hours respectively and his con- employee has earned $66 at piece rates arrived at, the regular hourly rate of pay tract provides for the payment of pre- for 46 hours of productive work and in will be calculated as indicated above.u mfum rates for work In excess of such addition has been compensated at $1. Under regulations of the Administrator, 'normal or regular hours of work for the an hour for 4 hours of waiting time, his -pursuant -to the authority given to him day or week (such as 7 in a day or 35 in total compensation-$70-must be di- in section 7 (f) (3) of the act, the parties a week) the extra compensation provided ,vided by his total hou's of work-50--. may. provide that the ,regular rate shall 'by such preniuin rates, paid for excessive to arrive at his regular hourly rate of be determined by dividing the monthly hours, is a true overtime premiium to be pay-$1,40. For the 10 hours of over- salary by the number of working days in excluded from the regular rate and It may credited towards overtime compensa- time the employee is entitled to addi- the -month and then by the number of be - tional compensation of $7 (10 hours at hours of the normal or regular workday. tion due under the act. 70 cents), For the week's work he is Of course, the resultant rate in such a "To qualify as overtime premiums under thus entitled to a total of $77 (which is -case must not be less than the statutory section 7 (d) (5), the daily overtime premium equivalent to 40 hours at $1.40 plus 10 minimum of $1 per hour. payments must be made for hours in excess overtime hours at $2.10) of, 8 hours per day or the employee's normal In some cases an employee is hired on =See § 778.3 (c). or regular working hours. If the normal MThe regular rate of an employee who is workday is artificially divided Into a "straight a piece-rate basis coupled with a mini- paid a regular monthly salary of 8173:34, or a time" period to which one rate is assigned, mum hourly guaranty. Where the total regular semimonthly salary of $86.67 for 40 'followed by a so-called "overtime" period piece-rate earnings for the week. fall -hours a week. is thus found to be.$1.00 per for, which a higher "rate" Is specified, the hour. The Administrator has announced arrangement will be regarded as a device to rFor an alternative method of complying that, as an enforcement policy, he will con- 'contravene the statutory purposes and the ,with the overtime requirements of the act eider that payment of such regular monthly premiumis will be considered part of the regu- as far as pieceworkers are concerned, see or semimonthly salary is in accordance with lar rate. For a fuller discussion of this prob- 9778.10 (b). the minimum wage requirements of the Act. lem, see §-778.22.

74 (81 of 135) Wednesday, July Case: 4, 1956 18-55682, 10/31/2018,FEDERAL ID: REGISTER 11068173, DktEntry: 24-2, Page 77 of 124 4951 13. Section 778.5 (e) (1) Is amended to handling dangerous or obnoxious cargo, h6liday pay. •The-typical situation is one read: recognition of skill differentials, or simi- In which an employee is entitled by con- lar reasons, so as to be $2 an hour dur- tract to 8 hours' pay at his rate of $1.30 (1) Premiums for weekend and wlil- ing the hours established as the basic anhour for.certain named holidays when day work. The application of section 7 or normal or regular workday or work- no'work is performed. If,"however, he (d) (6) may be illustrated by the follow- week, and a premium rate of $3 an hour is required-to work on such days, he does ing example: Suppose an agreement of is paid for the same work performed not receive his idle holiday pay. Instead employment calls for the payment of during other hours of the day or week, he receives apremium rate of $1.95 (time $1.65 an hour for all hours worked on a the extra $1 may be excluded from and one-half) for each hour worked on .holiday or on Sunday in the operation the regular rate of pay and may be cred- the holiday. If he worked 9 hours on of machines whose operators are paid a ited toward overtime pay due under the the holiday and a total of 50 hours for bona fide hourly rate of $1.10 for like act. Similar principles are applicable the week, he would be owed, under his work performed during nonovertime where agreements following this general contract, $17 55 (9 X $1M5) for the holi- hours on other days. Suppose further pattern exist in other industries. day work-and $53.30 for the other 41 that the workweek of such an employee hours worked in the week,- a total 'of begins at 12:01 a. m. Sunday, and in a 15. Section 778.7 (d) (1) is amended to, $70.85. Under the statute (which does particular week he works a schedule of read: not requfre premium pay for a holiday) 8 hours on Sunday and on each day from (1) An employee whose rate of pay is he is owed $71.50 for a workweek of 50 Monday through Saturday, making a $L30 an hour and who usually works a 6- hours at a rate of $1.30 an hour. Since- total of 56 hours worked in the workweek. day 48-hour week is entitled, under his the holiday premium qualifies as an over- Tuesday is a holiday. The payment of employment contract, to a week's paid time premium under section 7 d) (6) = $70.40 to which the employee is entitled vacation in the amount of his usual the employer may credit it toward statu- under the employment agreement will straight-time earnings--$62.40. Hefore- tory overtime compensation due and need satisfy the requirements of the act since goes his vacation and works 50 hours in pay the employee only the additional the employer may properly exclude from the week in question. He is owed $65 sum of 65 cents to meet the statutory the regular rate the extra $4.40 paid for as his total straight-time earnings for requirements. work on Sunday and the extra $4.40 the week, and $62.40 in addition as his If all other conditions remained the paid for holiday work and credit himself vacation pay. Under the statute he is same but the contract called for the pay- with such amount against the statutory owed an additional $6.50 as overtime ment of $2.60 (double time) for each overtime premium required to be paid premium (additional half-time) for the hour worked on the holiday; the em- for the 16 hours worked over 40. 10 hours in excess of 40. HIs rate of $1.30 ployee would receive, under his contract, 14. Section 778.5 (e) (2) is amended per hour has not been increased by vir- $23.40 (9X$2.60) for the holiday work in to read: tue of the payment of $62.40 vacation addition to $53.30 for the other 41 hours (2) Premiums pay, but no part of the $62.40 may be worked, a total. of $76.70. Since this for work outside bastc offset against the statutory .overtime holiday.premium is an overtime premium workday or workweek. The effect of sec- compensation which is due. (Nothing in under section 7 (d) (6), the employer tion 7 (d) (7) where "clock pattern" this example is intended to imply that may credit it toward statutory overtime premiums are paid may be illustrated the employee has a statutory right to compensation due. Since the total paid by reference to provisions typical of the $62.40 or any other sum as vacation pay. exceeds the statutory requirements, no applicable collective-bargaining agree- This is a matter of private contract be- additional cdmpensation is due under the ments traditionally in effect between tween the parties who may agree that act. In distinguishing this situation employers and employees in the long- vacation pay will be measured by .from that in example (2) above, it should shore and stevedoring Industries. These straight-time earnings for any agreed be noted that the contract provisions in agreements specify straight-time rates number of hours or days, or by total the two situations are different and re- applicable during the hours established normal or expected take-home pay for sult in the payment of different amounts. in good faith under the agreement as the period or that no vacation pay at all In example- (2) -the employee received a the basic, normal, or regular workday will be paid. The example merely il- total of $22.10 attributable to the holiday and workweek. Under one such agree- lustrates the 'proper method of com- (8 hours' idle holiday pay- at $1.30 an ment, for example, such workday and puting overtime for an employee whose hour and $11.70 pay-for 9 hours' work workweek are established as the first employment contract provides $62.40 on the holiday). In, the situation dis- six hours of work, exclusive of mealtime, vacation pay.) cussed in this paragraph the employee each day, Monday through Friday, be- received $23.40 pay for the holiday- tween the hours of 8 a. m. and 5 p. m. 16. Section 778.7 Cd) (2) is amended double time for 9 hours of work. Thus, Under another typical agreement, such to read: clearly, all of the pay in this situation is workday and workweek are established (2) An employee, who is entitled, paid for and directly related to the num- as the hours between 8 a. m. and 12 under his employment contract, .to 8 ber of hours worked on the holiday. noon and between 1 p. nm and 5 p. m., hours' pay at his rate of $1.30 an hour for 17. Section 778.7 (e) is amended- to Monday through Friday. Work outside the Christmas holiday, foregoes his holi- read: such workday and workweek is paid for day and works 9 hours on that day. Dur. at premium rates not less than one and Ing the entire week he works a total of (e) "Show-up" and "cal-back" pay. one-half times the bona fide straight- 50 hours. He is paid, under his contract, Under some employment agreements, an time rates applicable to like work when $65 as straight-time .compensation for employie may be paid a minimum of a performed during the basic, normal, or 50 hours plus $10.40 as Idle holiday pay. specified number of hours' pay at the regular workday or workweek. The extra He is owed, under the statute, an addi- applicable straight-tirie or overtime compensation provided by such premium tional $6.50 as overtime premium (ad- rate on infrequent and sporadic oc- rates will be excluded in computing the ditional half-time) for the 10 hours in casions- when, after reporting to work regular rate at which the employees so excess of 40. HIs rate of $1.30 per hour at his scheduled starting time on a regu- paid are employed and may be credited has not been increased by virtue of the lar workday or on another day on which toward overtime compensation due under holiday pay but no part of the $10.40 he has been scheduled to work, he is not the Fair. Labor'Standards Act. For ex- holiday pay may be credited toward provided with the expected -amount of ample, if an employee is paid $1.40 an statutory overtime compensation due. work. The amounts that may be paid hour under such an agreement for han- The latter example should be dis- under such an agreement over and above dling general cargo during the basic, tinguished from a situation in which an .what the employee would receive if paid -normal, or regular workday and $2.10 employee is entitled to Idle holiday pay at his customary rate only-for the num- per hour for like work outside of such only when he is actually idle on the holi- ber of hours worked are paid'to com- workday, the extra 70 cents will be ex- day, and who, if he foregoes his-holiday pensate the employee for the time wasted cluded from the regular rate and may also, under his contract, foregoes his idle -by him in reporting for work and to pre- be credited to overtime pay due under vent undue loss of pay resulting from the act. Similarly, If the straight-time On the requirements of the act, see Part the employer's failure to provide ex- rate established in good faith by the 777 as to minimum wage; 1778.2 (b) of this contract should be higher because of chapter as to overtime pay. =See 5 778.5 (c). No. 129-2

75 (82 of 135) 4952 Case: 18-55682, 10/31/2018,RULES -AND ID: REGULATIONS 11068173, DktEntry: 24-2, Page 78 of 124 pected work during regular hours. One tion at time 'afd one-half f~o all'hours of $56 mow covers 35 hours of 'work and of the primary purposes of such an ar- worked in excess of 8 in any day or 40 no more, the employee would be owed rangement is to discourage employers in any workweek. Assume that an, em- $1.60 per hour .under his .employment from calling their ruen in to work for ployee covered by this agreeiiient and contract for each hour worked between only a fraction of a day when they might paid at the rate of $1.30 an hour works 35 and 40. He would be'owed- time and get full-time work elsewhere. Pay ar- I. hour overtime or a total of 9 hours on one-half of $1.60 ($2.40) per hour, under rangements of this kind are commonly Monday, and works 8 hours each on the'statute, for each hour worked in referred to as "show-up" or "reporting" Tuesday through, Friday, , inclusive. excess of 40 4n the workweek. In weeks pay. Under the principles and subject After he, has gone. home on Friday eve- in which no overtime is'worked only the to the conditions set forth in §§ 778.3 to ning he is called back to perform an provisions of section 6 of the act, requir- 778,5, that. portion of such payment emergency job. His hours worked onthe ing the payment of not less than $1.00 whicll represents compensation at the call total 2 hours and he receives 3 hours' per hour, apply, so that the.employee's applicable rates for the straight-time pay at time and one-half, or $5.85, under right to receive $1.60 per hour is enforce- or overtime hours actually worked, if the call-back provision, in. addition to able only under his contract. However, any, during such period may be credited $52 for working his regular schedule and in overtime weeks the Administrator has as straight-time or overtime compensa- $1.95 for the overtime worked-on Mon- the duty to insure the payment of time tion, as the case may be, in computing day evening. and one-half the employee's regular rate overtime compensation due under the In computing overtime compensation of pay for hours in excess of 40 and over- act, The amount by which the speci- due this employee underthe act, the 43 time cannot be said to have been paid fied number of hours' pay exceeds such actual hours (not 44) are counted, as until all straight-time compensation due compensation for the hours actually working time during the-week. In addi- the employee under the statute or his worked Is considered as a payment that tion to $55.90 pay at the $1.30 rate for employment contract has been paid. Is not made for hours worked. As such, all these hours, he has received under. Thus if the employee works 41 hours in it may be excluded from the computa- the agreement "a premium of 65 cents a particular week,'he Is owed his salary tion of the employee's regular rate and for the one overtime. hour on- Monday for 35 hours-$56, 5 hours pay at $1.60 cannot be credited toward statutory and of $1.30 for the 2 hours of overtime per hour for the 5 hours between 35 and overtime compensation due him. work on the call, plus an extra sum of 40--$8, and one hour's pay at $2.40 for To illustrate, assume that an employee $1.95 paid by reason of the provision for the one hour in excess of 40-$2.40, or whose workweek begins on Monday and minimum call-back pay. For purposes a total of $66.40 for the week. who is paid $1.30 an hour reports for of the act, the extra premiums paid for 20. Section 778.9 (c) is amended to work on Monday according to schedule actual hours of overtime work on Mon- .read: and is sent home after being given only day and on the Friday call (a total of (c)Effect if 2 hours of work. He then works 8 hours $1.95) may be excluded as true overtime salary is for variable each day on Tuesday through Saturday, premiums in computing his regular rate workweek. The discussion in the prior inclusive, making a total of 42 hours for for theweek and may be credited to- paragraph sets forth' one result of re- the week, The employment agreement ward compensation due under the act, ducing the workweek from 40 to 35 hours. covering the employees in the plant, who but the extra $1.95 received under the It is not either the necessary result or normally work 8 hours a day, Monday call-back provision is not regarded as the only possible result. As in all cases through Friday, provides that an em- paid for hours worked; therefore, it may of employees hired on a salary basis, the ployee reporting for scheduled work be excluded from 'the regular rate, but regular'rate depends in part on the on any day will receive a minimum of it cannot be credited toward overtime agreement of the parties as to what the 4 hours' work or pay. The employee compensation due under the act. The, salary is intended to compensate. In thus receives not only the $2.60 earned regular rate of the employee, therefore, reducing the workweek to 35 hours the iII the 2 hours of work on Monday but remains $1.30, and he' has received an parties may agree to change the basis an extra 2 hours' "show-up" pay, or overtime premium of 65 cents an hour of the employment arrangement by pro- $2.00 by reason of this agreement. How- for 3 overtime hours of work. This sat- viding that the salary which formerly ever, since this $2.60 in "show-up" pay is isfies the requirements of. section 7 of covered a fixed workweek of 40 hours not regarded as compensation for hours the act. The same would be true, of now covers a'variable workweek up to worked, the employee's regular rate re- course, if, in the foregoing example, the 40 hours. If this is the new agreement, mains $1,30 and the overtime require- employee was called back outside his the employee receives $56 for workweeks iments of the Act are satis led if he re- scheduled hours for the 2-hour emer- of varying lengths, such as 35, 36, 38, ceives, in addition to the $54.60 straight- gency Job on another night of the-week or 40 hours.. His rate thus varies from time pay for 42 hours and the $2.60 or on Saturday or Sunday, instead of week to week, but in weeks of 40 hours "show-up" payment, the sum of $1.30 on Friday night. or over, it is $1.40 per hour (since the as extra compensation for the 2 hours agreement of the parties Is that the sal- of overtime work on Saturday. 18. Footnote 32 to § 778.7 C) is ary covers up to 40 hours and no more) In the interest of simplicity and uni- amended to read: and his overtime ratd, for hours in ex- formity, these principles will be applied . =See Part 785 (Interpretative Bulletin on cess of 40, thus remains $2.10 per hour, also with respect to typical minimum ."hours worked"). For a discussion of travel Such a salary arrangement presumably time in particular and preliminary and post- contemplates that the salary "call-back"'or "call-out" payments made liminary activities in general as working will be paid pursuant to employment agreements. time see Part 790 (statement on effect of in full for any workweek of 40 hours Typically, such minimum payments con- Portal-to-Portal Act of 1947). or less. The employee would thus be nist of a specified number of hours' pay entitled to his full salary if he worked at the applicable straight-time or over- 19. Section 778.9 (b) is amended to only 25 or .30 hours. No deductions for time rates which an employee receives .read: hours not worked in short workweeks on infrequent and sporadic occasions (b) Effect'on salary for flxed, work- would be made.n ,when, after his scheduled hours of work week. If an employee was hired at a 21. Section 778.9 (e) is amended to have ended and without prearrange- salary of $56 for a -fixed workweek of ment, he responds to a call from his 40 hours, his regular rate at the time of read: employer to perform extra work. hiring was $1.40 per hour. If his work- (e)Effect on salary covering more Tile application of these principles to week is later reduced to a fixed workweek -than 40 hours' pay. The same reasoning call-back payments may be illustrated as ,of 35 hours while his salary remains the 'applies to salary covering straight-time follows: An employment agreement pro- same, it is the fact that it now takes pay for a longer workweek. If an em- vides a minimum of 3 hours' pay at him only 35 hours to earn $56, so that ployee was hired at a fixed salary of $77 time and one-half for any employee ,he earns his salary at the average rate for 55 hours of work, he was, entitled to called back to work outside his sched. of $1.60 per hour. His regular rate thus -statutory overtime for the 15 hours In uled hours. The employees covered by becomes $1.60 per hour; it is no longer excess of 40 at the rate of 70 cents per the agreement normally work 8 hours $1.40 an hour. Overtime pay is due hour (half-time) in addition to his sal- each day, Monday through Friday, In- under the act only for hours worked in clusive, in a workweek beginning on Mon- excess of 40, not 35, but if the under- For a discussion of the effect of deduc- day, and are paid overtime compensa- standing of the parties is that the salary tions on the regular rate, see § 778.12.

76 (83 of 135) Wednesday, July Case: 4, 1956 18-55682, 10/31/2018,FEDERAL ID: 'REGISTER 11068173, "" DktEntry: 24-2, Page 79 of 124 4953 ary. If the workweek is -later reduced ployer might adopt a series -of different Labor Standards Act will not alter any . to 50 hours, with the understanding be- rates for the some work, varying in- obligation-the employer may-have under tween the parties that the salary covers versely with the number of overtime his employment contract to- pay a all hours up to 55, his regular rate In any hours worked in such a -way that, the greater- amount ofovertime_-compensa,- week of 55 hours or less is determined employee would .earn no -more than his tion for the period in question - how many by dividing the salary by the number straight-tme' rate no matter 24. Section 778.12, paragraph begin- of hours he worked. If he set hours worked to earn It in that par- the rate at ning with the words "the reductions" ticular week, and $1.40 per hour for all workweeks in which additional half-time, at and ending with the word "altered" is that rate, is due for each hour in excess hours or less, the employee worked 40 amiefd~d to read: ...... of 40. In weeks of 55 hours or more, his approximately $1.38 per hour. for work- regular rate is $1.40 per hour. If the weeks of 41 hours, approximately $1.37 The reductions in pay described in understanding of the parties is that the for workweeks of 42 hours, approxi- category (4) are not, properly speaking, salary now covers afled workweek of mately $1.27 for workweeks of -50 hours, "deductions" at all If an employee is 50 hours, his regular rate is $1.54 per and so on, the employee would always compensated at a fixed salary for.a fxed hour in all weeks. This assumes that receive (for straight time and overtime workweek and if- this saary, is reduced when an employee works less than 50 at these "rates") $1.40 an hour regard- by the amount-of the average hourly hours n a pakticular week, deductions less of the number of overtime hours earnings for each hour lost by the em- are made at the rate of $1.54 per hour worked. This is an obvious bookkeeping ployee in a short workweek, the employee for the hours not worked. device designed to avoid the payment of is, for all practical purposes, employed The reasoning does not, of course, ap- overtime compensation and is not in ac- at an, hourly rate of pay. This hourly -ply to a situation In which the former cord with the law. The regular rate of rate is the quotient of the fixed salary earnings at both straight-time and over- pay of this employee for overtime pur- divided by the-fixed- number of hours it time are paid to the employee for the poses is, obviously, the rate he earns in is intended to compensate. if an em- reduced workweek. Suppose an em- the normal non-overtime week-in this ployee is hired at a fixed salary of $56 ployee was hired at an hourly rate of case, $1A0 per hour. for a 40-hour week, his hourly rate- is $1.40 an hour and regularly worked 50 The situation is different in degree but $1.40. When he works only 36 hours he hours, earning $77 as his total straight- not in principle where employees who is therefore entitled to $50.40. The em- time and overtime compensation, and have been hired at a bona fide $1.60 rate ployer makes a "deduction" of $5.60 from the parties now agree to reduce the usually working 50 hours and taking his salary to achieve, this result. The workweek to 45 hours without any re- home $88 as total straight-time and rate is not altered. duction in take-home pay. The parties overtime pay for the week are,- during 25. Section 778.12, last paragraph be- in such a situation may agree to an in- occasional weeks, cut back to 42 hours. ginning with -the words "where deduc- crease in the hourly rate from $1.40 per If the employer raises their rate to $2 for tions," 3d from last line, delete the num- hour to $1.62 so that for a workweek of such weeks so that their total compensa- ber and symbol "750l" and insert in place 45 hours (thd reduced schedule) the tion is $86 for a 42-hour week'the ques- thereof the symbol and number "$1.00". employee's straight-time and overtime tion may properly be asked, when they 26. Footnote 39 to § 778.13 (b) is earnings will be $77. The parties can- return to the 50-hour week, the $1.60 amended to read: rate and the gross pay of $88, whether not, however, agree that the employee is '*The time spent by the employee in com- to receive exactly $77 as total compensa- the $1.60 rate is really their regular rate. peting for such a prize (whether successfully tion (including overtime pay) for a Are they putting In 8 additional hours of or not) is working time and must be counted workweek varying, for example, up to work for that extra $2 or is their "reg- as such in determining overtime compensa- 50 hours, unless he does so pursuant to ular" rate really now $2 an hour since tl6n due under the act. contracts specifically permitted n sec- this is what they earn in the short work- tion 7 (e) of the act, as discussed in week? It seems clear that where differ- 27. Section 778.14 is amended to read: § 778.18. An employer cannot otherwise ent rates are paid from week to week for § 778.14 Lump sum attributedto over- discharge his statutory obligation to pay the same work and where the difference time. Section 7 of the act requires the overtime compensation to an employee Is Justified by no factor other than the payment of overtime compensation for who does not work the same fixed hours number of hours worked by the indi- hours worked in excess of 40 at a rate eachweek by paying a fixed amount pur- vidual employee-the longer he works not less than one and one-half times the porting to cover both straight-time and the lower the rate-the device is evasive regular rate. The overtime rate is a overtime compensation for an "agreed" and the rate actually paid in the shorter rate per hour. - number of hours. To permit such a or non-overtime week is his regular rate Where employees are paid on some practice without proper statutory safe- for overtime purposes in all weeks. -basis other than an hourly rate, the-reg- guards would result in sanctioning the 23. Section 778.10, comlutation num- ,ular hourly rate is derived by dividing circumvention of the provisions of the ber (3), is amended to read: the total compensation (except statu- act which require that an employee who tory exclusions) by the total hours of works more than 40 hours in any work- (3) Suppose that, in the example work for which the payment is 'made. weekbe compensated, in accordance with given, the employee worked 5 hours on To qualify as an overtime premium un- express Congressional intent, at time Sunday, March 11, 1956. His workweek ,der section 7 (d) (5), (6) or (7), how- and one-half his regular rate of pay for commenced at 7 a. m. on Monday, March ever, the extra compensation must be the burden of working long hours. In 5th, and be worked 40 hours March 5th paid pursuant to a premium rate which arrangements of this type, no additional through 10th so that for that week he is a rate per hour."a To qudlify under financial pressure would fall upon the would be owed straight-time and over- section 7 (d) (5) this rate must be employer and no additional compensa- time compensation for 45 hours. The greater than the regular rate, either a 'tionwould be due to the employee under proposal Is to commence the workweek fixed amount per hour or a multiple of such a plan until the workweek exceeded at 7 a. m. on March lth. In the week the rate, such as time and one-third. 50 hours. from Sunday, March 11, through Satur- To qualify under section 7 (d) (6) or (7) day, March 17, the employee worked, a the rate may not be less than time and 22. Section 778.9 (f) is amended to total of 40 hours, including the 5 hours one-half the bona fide rate established read: worked on Sunday. It is obvious that in good faith for like work performed (f) Temporary or sporadic reduction the allocation of the Sunday hours to during nonovertime hours. It may not in schedule. The problem of reduction the old workweek will result -in higher be less than time and one-half but it; in the workweek-is somewhat different total compensation to the employee for may be more. It may be a standard the 13-day period. He should, there- multiple greater than one and one-half where a temporary reduction is involved. tore, be Reductions for the period of a dead or paid (if his rate were $1.40 an (for example, double time); or it may be hour) $66.50 for the period from March a fixed sum of money per hour which is, slow season follow the rules announced 5th through March 11th, and $49 for above. However, reduction on a more the period from March 12th through 4 Sections 7 (e)-ahud 7 (f) of the act pro- temporary or sporadic basis presents a March 17th.. vide for specil exceptions from this rule. different -problem. It is obvious that as The fact that this method of. compen- These are discussed in §§178.18, 778.19, and a matter of simple arithmetic an em- sation is permissible under the Fair 778.20.

77 (84 of 135) Case: 18-55682, 10/31/2018,RULESAND ID: REGULATIONS 11068173, DktEntry: 24-2, Page 80 of 124 as an arithmetical fact, at leasttime and hour for work during hours outside the hours worked after- the completior, of 'one-half the regular rate (for example., basic workday or workweek. ' It further the task. if the regular rate is $2 per hour, the provides thatemployees. doing a special - Suppose an employee works the follow- overtime rate may not be less than $3 task outside the basic workday or working hours in a particular week: but it may be set at a higher arbitrary week shall receive 6 -hours' pay at the figure such as $3.20 per hour). rate of $2.25' per hour (a total payment M T W T F 8 S Where an employee works a regular of $13.50) regardless of.the time actually fixed number of hours each week, it is, consumed in performance.. Hourt sppnt o, of course, proper to pay him a fixed sum, Suppose an employee works the fol- .task.------6 7 7. 0 86 6 0 Dlay's pay under for his overtime work, determined by lowing schedule. (The hours marked' by contract $12 $12 $12 $12 $12 $18 0 multiplying his overtime rate by the an asterisk were spent in the perform- Additional hours .2.... 2 ------number of overtime hours, regularly ance of the special work.) Additional pay worked. However, a premium in the under contract. $4. .... $150 $2.25 $2.25 ..... form of a lumb sum which is paid for AT T W 11" F S work performed during overtime hours The employee has actually worked a total of 48 hours and has received a total without regard to the number of over- Hours within -time hours worked does not qualify as basic workday. - 8 ' 8 7 ' 8 8 0 0 of $91.50 for the week. ,The only sums Pay, under con. which can ,be-excluded from this ,total an overtime premium even though the tract------$12 $12, $10.50 $12 $12 0 0 amount of money may be equal to or' Hours outside before the regular rate is determined are greater than the sum owed on a per- -'bas Iworkday 2 "'2 - 1 0 -0 4 0 the extra 75-cent payments for the extra Pay under con- hour basis, For example, an agreement $9 0 hour on Thursday and Friday made be- tract -.. $4.50 $1]3.50 $225 0 0 cause of work actually in excess of 8 that provides for the payment of a fiat - sum of $20 to employees who work on hours. The, other premium rates were premium To determine the regular rate, the paid either without, regard to whether Sunday does not provide a (except statutory ex- which will qualify as an overtime pre- total compensation or not the hours they compensated were cluslons) must be divided by the total in excess of a bona fide daily or weekly mium, even though the employee's worked. The only sums straight-time rate is $1,30 an hour and number of hours standard or without regard to the num- the employee always works less than 10 to be excluded in this situation are the ber of overtime hours worked. Only the hours on Sunday. Likewise, where an extra premiums provided by a premium sum of $1.50 is excluded from the total. agreement provides for the payment for rate (a rate per hour) for work outside -Theremaining $90 is divided by 48 hours work on Sunday of either the fiat sum 'the basic workday and workweek, which to determine the regular rate-$1.875 of $20 or time and one-half the em- qualify for exclusion.under section 7 (d) per hour. One-half this rate is due as ployee's regular rate for all hours (7) of the act.12 The $4.50 paid on Men- extra compensation for each of the 8 worked on Sunday, whichever is greater, .lay, the $2.25 paid- on Wednesday and overtime hours-$7.50. The $1.50 paid the $20 guaranteed payment is not an the $9 paid on Saturday are paid pur. for excessive hours may be credited and overtime premium. The- reason for this suant to rates which qualify as premium the balance-$6.00-is owed in addition Is clear. If the rule were otherwise, an rates under section 7 (d) (7) of the act. to the $91.50 due under the contract., employer desiring to pay an employee a .The total extra compensation (over the straight-time pay for these hours) pro- 29. In' &778.16 delete the third para- fixed salary regardless of the number .of, graph which begins with the words "An hours worked in excess of 40 in the work- -vided by these premium rates is $5.25. The sum of $5.25' should be subtracted agreement not" and ends with the words week could merely label as overtime pay "under the Act", and insert in place a fixed portion of such salary sufficient from the total of $87.75 paid to the em- to take care of compensation for the ployee, No part of the $13.50 paid for. thereof the following: maximum number of hours that would the special work performed on Tuesday An agreement not to compensate em- be worked. The Congressional purpose .qualifies for exclusion. The remaining ployees for certain nonovertime hours to effectuate a maximum hours standard $82.50 must thus be divided by 48 hours stands on no better footing since it would by placing a penalty upon the perform- to determine the regular rate-$1.72 per have the same effect of diminishing the ance of excessive overtime work would .hour. The -employee, is owed one-half employee's total overtime compensation. thus be defeated. For this reason, this rate for each of. 8 overtime hours -An agreement, for example, to pay an where extra compensation is paid in the worked-$6.88. The extra compensation employee $1.50 an hour for the first 35 form of a lump sum for work performed 'in the amount bf $5.25 paid pursuant to hours, nothing for the hours between 35 in overtime hours, it must be included in premium rates which qualify as overtime and 40 and $2.25 an hour for the hours in the regular rate and may not be credited premiums may be credited toward the -excess of 40 would not meet the overtime against statutory overtime compensation $6.88 .owed. No part of the $13.50 pre- requirements of the act. The employee due, mium may be so credited.- 'The employer would have to be paid $7.50 for the 5 The same reasoning applies where em- must pay the employee an additional hours worked between 35 and 40 before ployees are paid a fiat rate for a special $1.63 as statutory overtime pay-a total ,any sums ostensibly paid for overtime job performed during overtime hours, of $89.38 for the week. could be credited toward overtime com- to the time actually con- pensation due under the act. without regard L 28. Ih 778.15 delete from the para- sumed in performance. The total graph beginning with the words "The 30. Section 778.18 (d), second para- amount paid must be included In the employment agreement establishes" a graph which begins with the words "The regular rate; no part of the amount may basic hourly rate" to the end of the sec- regular rate of pay", delete the number be credited toward statutory overtime tion, 'and insert' in place thereof the and word "75 cents" and insert In place compensation due. following: .thereof the symbol and number "$1.00". It may be helpful to give a specific ex- 31. Section 778.18 (f), delete the ample illustrating the results of paying The employment agreement establishes a basic hourly rate of $1.50 per hour, -fourth-paragraph-which begins with the an employee on the basis under discus- -provides for the payment of $2.25 per words "the amount of weekly pay", and sion, hour for overtime work (in excess of the insert in place thereof the following: An employment agreement calls for basic workday or workweek) and defines The amount of weekly pay guaranteed the payment of $1.50 per hour for work the basic workday as 8 hours, and the may not exceed compensation due at the during the hours established In good basic workweek as- 40 hours, Monday specified regular rate for 40 hours and faith as the basic workday or workweek; through Friday. It further provides that at the specified overtime rate for 20 ad- It provides for the payment of $2.25 per -the assembling of'a machine constitutes ditional hours. Thus, if the specified a day's work. An 'employee who com- regular rate is $1.50 an hour the weekly t This situation Is to be distinguished from pletes the assembling job in less than 8 guaranty cannot be greater than $105. "alhow-up" and "call-back" pay situations 'hours will be paid 8 hours' pay at the 'This does not mean that an employee discussed In 9 778.7 (e). It is also to be 'distinguished from payment at time and established rate of $1.50 per hour and employed pursuant to'a guaranteed pay 'one-half the applicable rate to pieceworkers will receive pay at the "overtime" rate for contract under this section may not work for work performed during overtime hours., more than 60 hours. in any week; it as discussed In 9 770.19. 'As discussed in § 778.5- (d). - -means merely that pay-in an amount

78 (85 of 135) Wednesday, July Case: 4, 1956 18-55682, 10/31/2018,FEDERAL ID: REGISTER 11068173, DktEntry: 24-2, Page 81 of 124 4955 sufcient to compensate for a. greater hourly rate of pay well in excess of the The situation is in no way bettered if number of hours cannot be covered by minimum for his work is assigned a low the employer, standing by the logic of the guaranteed pay. If he works in ex- hourly rate (often the minimum) for the his labels, proceeds to compute and pay cess of 60 hours he must be paid, for each first hour (or the first 2 or 4 hours) of overtime compensation due' on this hour worked in excess of 60, overtime each day. This rate is designated as the "bonus" by prorating it back, over the compensation as provided in the con- regular rate; time-and one-half such rate hours of the workweek. Overtime com- tract, in addition to the guaranteed is paid for each additional hour worked pensation has still not been properly amount. during the workday. Thus, for example, computed for this employee at his regu- 32. Section 778,18 f), delete the 6th an employee is arbitrarily assigned an lar rate. . - • paragraph which begins with the words hourly rate of $1.40 per hour under a An illuitration of how the plan works "The guaranty of pay", and insert in contract which provides for the payment over a three-week per!od, may serve to place thereof the following: of so-called "overtime" for all hours in illustrate this principle more clearly: - excess of 4per day. Thus, for the normal In the irst -week the employee works 40 The guaranty of pay must be "based or regular 8-hour day the employee hours and receives $66.50. o The books show on the rates so specified," in the contract. would receive $5.60 for the first 4 hours he has received $40 (40. hours )$1 an hour) If the contract specified a regular rate and $8.40 for the remaining 4 hours; a as wages and 426.50-as bonus. No overtime of $1.50, and an overtime rate of $2.25 total of $14 for 8 hours. (This Is exactly has been- worked so no overtime compensa- and guarantees pay for 50 hours, the what he would receive at the straight- tion is due. amount of the guaranty must be $82.50, time rate of $1.75 per hour.) On the In the second week he works 50 hours and if it is to be based on the rate so sped- receives $66.50. The books show he has re- sixth 8-hour day the employee likewise ceived $40 for the first 40 hours and $15 (10 ied. A guaranty of $100 in such a situa- receives $14 and the employer claims to hoursx$1.50 an hour) for the 10 hours over tion would not, obviously, be based on owe no additional overtime pay under the 40, or a total of $55 as wages, and the bal- the rates specified in the contract. statute since he has already compen- ance as a bonus of $11.50. Overtime compen- 33. Section 778.18 W), in the 7th para- sated the employee at "overtime" rates sation s then computed by the employer by graph which begins with the words for 20 hours of the workweek. dlvlding $11.50 by 50 hours to discover the Such a division of the normal 8-hour average hourly increase resulting from .he 'Moreover, a contract", delete the sym- bonus-23 cents per hour-and half this rate bol and number "$75" and insert In place workday into 4 straight-time hours and 4. is paid for the 10 overtime hourse$1.15. This thereof the symbol and number "$100". overtime hours is purely fictitious. The is improper. The employee's regular rate in 34. Section 778.18 (g), in the 2d para- employee is not paid at the rate of $1.40 this week is $1.38 per hour. He is owed grAph which begins with the words "As an hour and the alleged overtime rate of $73.15, not $67.65. - a guide to employers". delete the symbol, $2.10 per hour is not paid for overtime In the third week the employee works 55 number, and words "$L30 per hour" and work. It is not geared either to hours hours and is paid $66.50. The books show "In excess of the employee's normal that the employee received $40 for the, first insert in place thereof the symbol, num- working hours or regular working hours" 40 hours and $22.50 (15 hoursx$1.50 -per her, and words $1.50 per hour. hour) lor the 15 hours over 40, or a total of 35. Section 778:18 (g), (section 7 (d) (5)) or for work "outside delete the 3d of the hours established in good faith $62.50, and the balance as a bonus of $4. paragraph which begins with the words Overtime pay due on the "bonus" is found "The X company" and, Insert in place * * 1 as the basic, normal, or regular to be 54 cents. This is improper. The em- thereof the following: workday" (section 7 (d) (7)) and it can- ployee's regular rate in this week is $1.21 and not therefore qualify as an overtime rate. he is owed $75.58, not $67.04 The X Company hereby agrees to em- The regular rate of pay of the employee ploy John Doe as a claims adjuster at a in this situation is $1.75 per hour and he Similar schemes have been devised for regular hourly rate of pay of $L50 per is owed additional overtime compensa- piece-rate employees. Themethod is the hour for the first 40 hours in any work- tion, based on this rate, for all hours in same.. An employee is assigned an arbi- week and at the rate of $2.25 per hour for excess of 40. This rule was settled by the trary hourly rate (usually the minimum) all hours in excess of 40 in any workweek, Supreme Court in the case of Walling v. and it is agreed that his straight-time with a guarantee that John Doe will re- HelmerIch & Payne, 323 U. S.37, and its and overtime earnings will be computed ceive, in any week in which he performs validity has been reemphasized by the on this rate but that if these earnings do any work for the company, the sum of definition of the term "regular rate" in not amount to the sum he would have $82,50 as total compensation, for all work section 7 (d) of the act as amended. earned had his earnings been cbmputed performed up to and including 50 hours on a piece-rate basis of 'x" cents per in such workweek. 30. Section 778.23 (a) is amended to piece, he will be paid the difference as a read: "bonus". This subterfuge 36. Section 778.19 does not serve (b), in subpara- § 778.23 (a) Artifcially labeling part to conceal the fact that this employee is graph (4) which begins with the words actually compensated "'the compensation paid" delete the sym- of the regular wages a "bonus." The on a piece-rate term "bonus" is Properly applied to a basis, that there is no bonus and that his bol and number "$4125" and Insert in regular rate is the quotient of piece-rate place thereof the symbol and number sum which is paid as an addition to total by hours worked. "$1.50". wages, usually because of extra effort ealnings divided 37. Section 778.20, delete the last of one kind or another, or as a reward The general rule may be stated that paragraph which begins with the words for loyal service or as a gift. The term wherever the employee is guaranteed a "Regulations issued pursuant" and in- is improperly applied if It is used to des- fixed or determinable sum as his wages sert in place thereof the following: ignate a portion of regular wages which each week, no part of this sum is a true the employee is entitled to receive under bonus and the rules for determining over- Regulations issued pursuant to this his regular wage contract. time due on bonuses do not apply. section are published in the Code of For example, If an employer has 40. Section 778.23 (b) -delete all para- Federal Regulations as 29 CFR 548. agreed to pay an employee $66.50 a week graphs preceding the paragraph begin- Payments made in conformance with without regard to the number of hours ning with the words "The total amount these regulations satisfy the overtime re- worked, the regular rate of pay of the earned by each employee is" and insert quirements of the act. employee is determined each week by in place thereof the following: 38. Section 778.22 is amended to read: dividing the $66.50 salary by the number of hours worked in the week. The situa- (b) Pseudo "percentage -bonuses!, § 778.22 The "split-day" plan. An- tion is not altered if the employer con- The device does notimprove when it be- other device designed to evade the over- tinues to pay the employee the same comesimore complex. If no true bonus time reqtiirements of the act was a plan $66.50 each week but arbitrarily breaks in a flat sum amount-can be legitimately known as the "Poxon" or "split-day" the sum down into wages for the first separated out of the employee's wages, plan. Under this plan the normal or reg- 40 hours at an hourly rate of $1.00 an ular workday is artificially certainly no bonus in the form of a per- divided into hour, overtime compensation at $1.50 per centage of total earnings, can be so de- two portions one of which Is arbitrarily hour and labels the balance a "bonus, labeled the "straight-time" portion of (which will vary from week to week, be- n See Walling v. Youngerman-Reynolds the day and the other the "overtime" coming smaller as the hours increase and Hardwood Company, 325 U. S.-419, where this portion. Under such a plan, an employee vanishing entirely in any week in which scheme was struck down by the Supreme who would ordinarily command an the employee works 57% hours or more). Court. .

79 -I.V II1= vJIIrl l rl L][/I1.III311L .ng nrvrnl=nr, nr (86 of 135) Case: 18-55682, 10/31/2018,RULES AND ID: REGULATIONS 11068173, DktEntry: 24-2, Page 82 of 124 rived, Yet some employers, seeking to without regard to the number of hours -total- of -$84,-for the -week (12 •hours at evade the overtime requirements of the worked, no part of such commisslons is $1.20 plus 2 homs at $1.80 for each of act entirely while apparently complying paid as overtime compensation. - - the first 4 days ($72) plus, 10 hours at with every requirement, have devised In the example just given the employer $1.20 for the fifth day). On a weekly schemes of this kind. Like the employer sought only to relieve himself of the basis the employee is entitled to 10 hours described in the preceding paragraph, burden of paying proper overtime on of overtime pay or a total of $85.20, for such an employer pays his employee part of the wages. The example must the week (56 hours at $1.20 plus 10 hours $66,50 a week without regard to the num- grow more complex but the principle at $1.80). The employer must pay $85.20 ber of hours worked. He also sets up a does not change when the employer seeks to satisfy the requirements of the act. fictitious regular rate of $1.00 an hour. to relieve himself of the entire burden (b) Suppose~the employee paid-$1.20 In a week in which the employee works of overtime 'by a fictitious division of an hour works the following schedule: 60 hours his records show the following: regular group wages into'hourly earn- (Tite material in brackets does not usually ings and "bonus". .This scheme is - W' F 5 5 appear it the final records.) usually tried with respect to employees T who work-solely on a group piece rate ' - 16 14 14 141 0 Straight time for 40 hours at $1, or group commission basis. For sim- "ou ---...... 41.4... an hour ------$40. o0 Overtime for 10 hours at $1.50 plicity we will assume that the two em- - an hour ------15.00 -plpyees in the previous example receive On a daily, basis the employee is en- - $55.00 ,no base hourly rate but are working. .titled to 10 hours of overtime pay, or a I$0G,60-$55,00=$I,50, total solely on a commission basis--11 percent -total of $82.80, for the week. On a amount to be distributed as of total sales. -In order for the scheme -weekly basis the employee is entitled to a bonusl to function the employer must provide-.8 hours of overtime pay, or a total of f$11,50/$55,00=20,9 percent] a minimum hourly guarantee. The $81.60, for the week .(56 hours at $1.20 Percentage of total earnings lminImum,rate of $1.00 is-best suited to plus. 8 hours at $1.80). The employer bonus at 20.0 percent of $55 ------11.50 his purpose for it provides the greatest must pay $82.80 to satisfy the require- Total ------66.50 leeway as to the number of. hours that ments of the act. TTI Obviously, this employee can no mdre Obvio.ly,.his.mploye.cannoany additional overtime compensation mre..... • 42. Section 778.27 is amended to read: be said to be receiving proper overtime whatever. In a week in which the total § 778.27 Retroactive effect. Section than the employee in the previous ex- sales amount to $950 the two employees '16 (e) of the Fair Labor Standards ample, This employee's regular rate in are together entitled to $104.50 (11%).. 'Amendments of 1949 (29 U. S. C. 216b) this week is $1.33 per hour and he is owed They will receive this amount regardless 'provides: a total of $73.15 for the week. of the number of hours they have worked No employer shall be subject to any t- No better claim of compliance can be individually or collectively. If they ability or punishment under the Fair Labor made by an employer who arbitrarily work the same number of hours, each Standards.Act of 1938, as amended (in any pices out a bonus from all or part of will get half-$52.25." This would be action or proceeding commenced prior to or group wages. The scheme tends to be true whether the hours worked by each 'on or after the effective date of this act), ' lore complex, but the principle is the .were 40, 43, 45, or 48 hours; Only the on account of -the failure of said employer same and the same results follow: .bookkeeping is altered. If each works to pay an employee compensation for any Oookkeepengs ru ered. Isf each : period -of overtime., work performed prior One relatively simple example of such a 40 hours the record will show ort each: .. to July 20, 1949, It the compensation paid scheme is t!e following: Two employees are Wages at $1 per hour--. I.._- . $40. 00 'prior -tO July 20, 1949, for such work was at hired as salesmen on an hourly-rate-plus- Bonus ----- I ------c - -- - 12.25 'least equal to the compensation which would commission basis, Each is hiredhird-atte at the rate-haver been payable f6r such work had section of $1.40 an hour for the first 40 hours and Total------52.25 --7 -(d) (6) and (7)'and section 1 (g) of the $2.10 an pour for overtime and, in addition, ' Fair Labor Standards Act of 1938, as is entitled tO a share in commissions earned If each works 45 hours, the record' -. amended, been In effect at the time of such by each at the rate of one percent of sales. I will show: payment. In a given week one employee works 40 hours Wages at $1 per hour for 40 hours. 40.00 For the period between July 20, 1949, and the other works 50, Together they sell Overtime pay at $1.50 per hour for Fw $1,330 worth of merchandise and are thus en- -5 hours. ------7.50 and January 25, 1950, the provisions of titled to $13.80 as commissions. In order to Bonus at 10 percent of total -earn- - the former section 7 (e) of the act, as avoid payment of overtime on the commis- ings (10 percent of $47.50) --- 4. 75 added by the act of. July 20, 1949 (63 alons, the employer decides to distribute the Stat. 446) . provided virtuallyv2-2l identicalidentiiol $13,30 In the form of a percentage of total Total . - " 446) earnings, The total wages of the two em------2.25 protection. ployces is $133 in the particular week. The 41. Section 778.25, delete from the - 43. Section 778.6 (g) (4) Is amended $13,30 commissions represent 10 percent of paragraph begpnning with the words to read: this figure, The employer therefore pays a "under this provision" to the end of the ( 10 percent "bonus" to each employee on his section, and insert in l0lace thereof the (nterna0(a) oe the total earnings, One receives $5.60 as bonus, section, and ioser. he the that following: Inbent plan us Cas b ee r e the other, $7,70. Tit employer claims as no additional overtime is due because the Under this provision, where an em- - by the Bureau ,of nternal Revenue "bonus" was a percentage of total earnings ployee works both in excess of twelve satisfying the requirements of section and the percentage was determined before the amount due any individual employee had hours in a day and in excess of fifty-six 401 '(a) of, the Internal Revenue Code, been determined, hours in the -aggregate in a particular in the absence of evidence' to the con- workweek, the employer must pay over- trary, the plan or trust will be con- If the commissions were a "bonus" at time compensation computed on either sidered to meet the conditions specified all, the method of distribution might be the daily or the weekly basis, whichever in subparagraphs (3), (1)', (iii), (iv), proper, But a bonus, as has been stated, is greater, but not both. It may be help-• and (v) of -this paragraph. Is a sum paid in addition to regular wages ful to illustrate this opinion by specific and not as a part of such wages. The examples. (52 Stat.. 1060; 29 U: . 0. 201-219) employees have contracted to work on a (a) Suppose an employee paid $1.20 ' These amendments shall become effec- wage-plus-group-commission basis. No an hour works the following schedule: tive upon publication in the FEDERAL extra pay-over and above the Sontract EIE. wage-is involved. As a regular part ofREGISTER. their duties, the employees make sales M T T F S 8 Signed'at Washington, D. C., this 27th and regularly receive a one-percent com- ---.- day of June 1956.O mission on the amount of the sale. - 110U15------14 14 14 14 10 0 0 NEWELL BROWN, Moreover, since the employees are owed Administrator. tile commissions in an amount related On a daily basis the employee is en- [F. R. Doe. 56-5280, Filed, July 3, 1956; only to the amount of total sales and titled to 8 hours of overtime pay, or a I I 8:46 a. m.l

80 (87 of 135) Wednesday, uty Case: 4, 1956 18-55682, 10/31/2018,FEDERAL ID: REGISTER11068173, DktEntry: 24-2, Page 83 of 124 495-7 ginning for the quarter in which a delivery Is ment; provided that If, any portion of such TITLE 32-NATIONAL DEFENSE first made (or services are first performed for gross excess (less all tax credits under the and accepted by the Government) under this Internal Revenue Code) has beenapplld-to Chapter -- Ofllce of the Secretary of contract, and as of the end of each quarter, the liquidation of 'progress payments, such Defense the Contractor shall submit a statement set- *amountmay be added or restoredto the un- ting forth the respective ambunt- of each of liquidated progress payment account, to:the- G-Defense Contrct Financing Subdiapler the three numbered items next above, to- extent consistent with the-progress payment PART 84-PA'riNTS ON INCENTIVE-TYPE gether with the total amount of all billings clause of this contract,.instead of making direct refund thereof. When, after submis- AND PRICE REDETERmINATIoN-TYPE CON- for Items delivered to (or services performed TRACTS for) and accepted by the Government (in- sion by the Contractor of cost data and price- eluding amounts applied to liquidate prog- redetermination offer, the Contractorand the ress payments) under this contract as of the Contracting Officer (a) have agreed inrlting 84.1 Purpose. end of each quarter. If on any quarterly upon revised billing prices in the light of the 84.2 Policy and action. statement thewe totallbillings exceed the sum cost experience and anticipated future trend 8.3 Refunds and adjustments. of the three numbered items above, this gross (and provided that such revised prices are not 84.4 Contract administration. excem less any applicable tax credit under. higler than the smalle t of (I) the existing Section 1481 of the Internal Revenue Code of contract price, (ii) theiContractor's-!price- Avmor: if 84-1 to 8M4 issued under see. 1954 shall, after deduction of the total re- redetermination offer and (iMi) a price based 202, 61 Stat. 500, as amended, sees. 2-12, 62 funds (cash or credit memoranda not includ- upon the most recent quarterly statement), 638, 66 Stat. 537; 5 U. S. C. Stat. 21-26, sec. ing any tax credits under the Internal and (b) the contractor agrees to promptly 171a6 41U. S. C. 151-162. Revenuo Code) theretofore made, be paid make the-necessary adjustments to bringpay- No: This part supersedes and cancels Immediately by the Contractor to the Gov- ments for pastdeliveries of Items into allgn- Part 84 published 20 F. R. 9179, subject: ernment or credited against existing unpaid ment with the revised billing prices, and (c) "Payments on Incentive ype and Price Re- billings covered by such statement; provided- so long as the Contractor bills at the agreed determination-Type Contracts." that f any portion of such gross excess (less revised billing prices (or lower prices there- all tax credits under the Internal Revenue after negotiated as final -prices preliminary § 8.1 Purpose. It is the purpose of Code) has been applied to the liquidation of to confirmation by formal contract supple- this part to assure payment of amounts progress payments, such amount may be ment), the prices so agreed .upon or nego- fairly due for items delivered and' ac- added or restored to the unliqudated prog- tiated shall be deemed to be final -prices for cepted under incentive-type and price ress payment account, to the extent con- the purpose of this paragraph until final redetermination-type contracts, to re- sistent with the progress payment clause of prices are established by supplement. For by contractors this contract, Instead of making direct refund any quarter in which only the numbered (1). duce the fieed for refunds thereof. above, Is applicable, the Contractor may fur- undef such contracts, to facilitate timely nish a written statement to that effect -in- adjustment of provisional billing prices (2) In price revision-or redetermina- stead of the quarterly statement above and prompt completion of final pricing tion-type contracts, not of the Incentive required. under these types of contracts, and to type: (b) In connection. with amendments reaffirm the policy on progress payments. Notwithstanding any provision of this con- providing for new procuremeit, and tract authorizing greater payment, adjust- e § 84.2 Policyand action. (a) To ac- enet providing an incentive- or the purpose of this part, all mants and refunds shall be made if the total complish of all amounts billed and paid or payable price redetermination-clausein contracts -ew contracts of the incentive-type and under this contract for items delivered to not previously containing such a clause, price redetermination-type, all definitive (or services performed for) and accepted by the above provisions shall be made ap- -contracts of the incentive- or price re- the Government (including amounts applied plicable to the entire contract. determination-type replacing or super- to liquidate progress payments), until final (c) Where the contracting officer has seding letter contracts, all amendments price revision has been made to the full discretion to control payments -through providing an incentive- or -price rede- extent permitted by this contract, shall ex- withholding provisions under an existing termination-clause in contracts not pre- ceed the sum of the following items as reported by the Contractor from time to time contract of the incentive- or price rede- -viously containing such a clause, and as hereinafter provided; (1) the total con- terminaton-type not containing the all amendments to contracts of the in- tract price of all Items delivered to (or serv- -above provisions, -the contract shall -be -centive- or price redetermination-type ices performed for) and accepted by the administered hereafter, to the maximum providing for new or additional procure- Government for which final prices have been extent permitted by *such withholding iment, entered into on or after July 1, established, and (2) the total amount of provisions, so that on and after January -1956; shall contain one or the other of costs (estimated to the extent necessary) that 1, 1956, the total aggregate-payments -the provisions set out in subparagraphs have been reasonably incurred for and are wil be. limited in the manner provided .1 or 2 of thl paragraph. properly allocable solely to Items delivered to (for services perfoimed for) and accepted in paragraph (a) of this section. (1). Incentive-type contracts: 'by the Government for which final prices (d) In the case of outstanding con- NWotwithstanding any provision of this con- have not been established, and (8) the total tracts of the incentive-type or price re- tract authorizing greater payment, adjust- amount of interim profit used in establishing determination-type, , where .payments ments and refunds shall be made If the total the initial contract price and allocable by . cannot be limited within a, reasonable of all armounts b1illed and paid or payable direct proportion to Items 'dellvered to (or time as provided -above, the contracting Under this contract for items delivered to (or services performed for) and accepted by the officer shall take prompt action to obtain services performed for) and accepted by the Government for which final prices have not by mutual agreement amendments of Government (including amounts applied to been established. Within 45 days after the liquidate progress payments) until final price end of each quarter of the Contractor's fiscal such contract incorporatin the above 'revision has been made shall exceed the sum year, beginning for the quarter In which a provisions. of the following items as reported by the delivery is first made (or services are first - (e) Ordinarily, unless the contracting Contractor from time to time as hereinafter performed for and accepted by the Govern- officer has good cause to doubt or ques- -provided; (1) the total contract price of all ment) under this contract, and as of the end tion the accuracy of statements fur- items delivered to (or services performed for) of each quarter, the Contractor shall submit nished in accordanpawith paragraph (a) and accepted by the. Government for which -a statement setting forth the respective of this section, such statements will be final prices have been established, and (2) amounts of each of the three numbered items the total amount of costs (estimated to the next above, together with the total amount relied upon and prompt payments under extent necessary) that have been reasonably of all billings for items delivered to (or the contract will continue to be made incurred for and are properly allocable solely services performed for) and accepted by the pending any post-audit or post-review to items delivered to (or services performed Government (including amounts applied to that may be necessary to protect-the infor) and accepted by the Government for liquidate progress payments) under this con-. terests of the Government. ''which final prices have not been established, tract as of the end of each quarter. If on any and (3) the total amount of the established quarterly statement these total billings ex- § 84.3 Rejunds and adjustments. (a) target profit allocable by direct proportion ceed the sum of the three numbered items (1) It is essential in all cases -that the to items delivered to (or cervices performed above, this gross excess (less any applicable amount of any indebtedness of-contrac- for) and accepted by the Government for tax credit under Section 1481 of the Internal tors to the Government be ascertained -which final prices have not been estab- Revenue Code of 1954) shall, after deduction 'promptly, and-that the amount of each lshed-increased or decreased in accordance of the total refunds (cash or credit memo- contractor's indebtedness to the Govern- with the incentive profit formula of this con- randa not Including any tax credits under tract -when the amount of costs stated in the Internal Revenue Code) theretofore ment be collected expeditiously. (2), above, differs from the applicable target made, be paid immediatelyby the Contractor . (2). Government personnel will take costs. Within 45 days after the end of each to the Government or credited against exist- 'prompt action so that amendments and quarter of the Contractor's fLscal year, be- Ing unpaid billings covered by such state- supplemental agreements, where appro-

81 (88 of 135) Case: 18-55682, 10/31/2018,RULES AND ID:REGULATIONS 11068173, DktEntry: 24-2, Page 84 of 124 prlate, will be prepared expeditiously and be deducted from the "gross excess" in 'TITLE 47- TELECOMMUNI- executed without delay. computing the. amount that may be CATION.' (b) For use in expediting and con- added or restored to the unliquidated trolling adjustments and refunds, cur- progress payment amount. Chapter I-Federal Communications rent inventory and control lists shall be (c) It was intended by superseded Part I Commission established and maintained with regard' 84 (20 F. R. 9179) that subject to the to all Incentive-type and price redeter- quarterly, adjustment required by the [Docket No. 11532; FCC'56-5871 mination-type contracts. Aggressive and' contract provisions set out therein, pay- [Rules Amdt. 3-16] ments at contract billing prices would be continuing efforts shall be made to elimi- PART 3-RADIO BROADCAST SERVICES nate any unnecessary delays. made before submission of the first All incentive-type and price re- required quarterly statement, and there- TELEVISION BROADCAST STATIONS (c) after during the intervals between quar- determination-type contracts shall be 1. Prior to 'November 10, 1955, when reviewed systematically and periodically terly statements. Hence, contracts containing the provisions required by this proceeding was initiated (Notice of to obtain voluntary interim billing price Proposed Rule- Making, FCC 55-1124), adjustments and prompt refunds as ap- superseded Part 84 (20 F.R. 9179) will be administered in the same nianner as if, television broadcasters and other ele- propriate. The maing of voluntary re- ments of the television industry had sub- funds In anticipation of retroactive pride they contained the first sentence of the contract provisions set out above., mitted numerous suggestions. and, In reductions shall be systematically en- some'cases, formal petitions for revisions couraged. No proposed voluntary refund [SEALI REUBEN B. ROBERTSON, Jr., of the television allocation plan. shall be refused or delayed, and all such Deputy Secretary of Defense. - - 2. The scope of these proposals and accepted refunds shall be tendered and [F. R. Doc. 56-5304; Filed, July 3, 1956; the methods, employed -varied .widely. without prejudice to final pricing. In 8:51 'a. m.] They ranged from channel. reassign- connection With voluntary refunds, mini- ments affecting a single city to major mum refunds proposed by contractors in' revisions affecting the entire country. connection with final pricing proposals, TITLE 43-PUBLIC LANDS: The methods included such diverse and and refunds incident to quarterly state- INTERIOR mutually inconsistent approaches as con- ments, contractors shall not be required version to an all-VHF system, conversion to furnish concurrent itemization of ad- Chapter I-Bureau of Land Manage- to an all-UHF system, and continued use justmentl to be made on past billings, menti Department of the Interior of both bands under a wide variety of nor to furnish adjusted bills' concur- proposals. Some of the latter envisaged rently,' Such adjustments as may be Appendix-Public Land Orders. the more or less extensive increase of the essential in 'connection with refunds [PubUc Land Order 13091 number of VHF channel assignments Will be accomplished by appropriate [69696] through the use of new VHF channels, Government personnel, with such infor- the use of the present 12 VHF chanriels mation as may be essential from con- NEw MEXIO- under reduced spacings, or both. Others tra ctors after refunds are made, and the contemplated the elimination or transfer making, acceptance and deposit of re- REVOKING DEPARTMENTAL ORDERS OF MAY 2, 1908 AND MARCH 2, 1909, WHICH RESERVED elsewhere of.VHF commercial channels funds will not be delayed pending the and the 'substitution,- locally, of UHF making of any necessary accounting LANDS FOR USE OF THE FOREST SERVICE AS''channels. THE FRESNOL ADMINISTRATIVESITE , Some proposals were based adjustments. Whenreductions in billing 'on the revision of the existingengineer- prices are proposed bg contractors, they By virtue of the authority vested in the ing standards and policies, 'notably with will be made effective Immediately with- President and pursuant to Executive Tespect-to minimum spacings, maximum 'outpreJudice to further adjustment, and Order No. 10355 of May -26. o1952, it is antenna heights and-powers, the direc- billings voluntarily reduced by contrac- :ordered as follows* , tionalizing of antennas; 'and the use of tors shall if otherwise proper be paid at The "departmental ,orders of May 2, cross p!dolarization. Other proposals adl- the reduced amounts without awaiting 1908 and March 2, 1909, reserving the vocated the maintenance of present contract amendments. following-described public, lands within standards. In short, the Commission § 84.4 Contract administration. (a) the Sacramento (now -Lincoln) National was callei upon to consider an extensive The contracting officer will exerclse every Forest, New Mexico, for use of the Forest array of widely differing remedies for effort to bring about prompt redetermi- Service, Department of Agriculture, as the difficulties- which had hindered the ,nation of prices and setting of firm target the Fresnol Administrative Site, are further expansion of the nation's televi- ,prices by vigilant and timely attention to hereby revoked: .sion service and the fuller achievement the contract administration aspects of NEw MExIco PRiCIPAL MESXAN -of the objectives of the Sixth Report and each contract, and nothing contained T. 16 S., R. 1i E., Order. herein will dimish hiS responsibilities. Sec. 6, lots 9; 10, 11, 13, 14, 15, 16, and 17.. 3. Briefly stated; those objectives wdre (b) Section 1481 of the Internal Reve- to encourage the development of 'a na- nue Code of 1954 and Section 3806 of The areas described aggregate, 265.23 tionwide, competitive television system the Internal Revenue Code of 1939 pro- acres. inwhich: vide for certain tax credits In connection The released lands are within the Lin- (a) All areas would have at least one with contract price refunds. The con- coln National Forest and have been open service; tract provisions set out In this part and to applications and offers under the (b) The largest possible number of In superseded Part 84 (20 F. R. 9179) mineral-leasing laws. They will be open -c6mmunities would have at least one Ia- do not alter the effect of those statutory to such other applications, selections, cal television station; and ' provisions. Contracts containing either and locations, as are permitted on na- (c) Multiple services would be avail- one of the provisions set out In § 84.3 (a) tional forest lands'effective at 10:00 a. m., able in as many communities and areas of superseded Part 84 (20 F. R. 9179) on ,as possible to provide adequate program shall be administered in such manner as Inquiries concerning applications and choice to the public and encourage the to allow this statutory tax credit when- offers under the mineral-leasing laws. development of competition-among ever applicable under the circumstances. and locations under the mining laws shall 'broadcasters, networks and other ele- Whenever there is a "gross excess" under be addressed to the Manager, Land Office, ments of the industry. those contract provisions, the amount of 'Bureau of Land Management,- Santa Fe, 4. Among these'three basic objectives, such tax credit shall be allowed in partial New Mexico. Other inquiries shall be ,the greatest progress has been made In settlement of the gross excess determined addressed to the Regional Forester, Post achieving the first. It is estimated that without reference to such tax credit, and Office Building, Alamogordo, New Mexico. .over 90 percent of the population can only the remainder of the excess after WESLEY A. D EWART, -receive service from at- least one tele- such tax credit allowance shall be subject Assistant Secretdry of 'th Interior. -vision station. Less progress has been to refund by the Contractor. Also, ap- ,realized toward, achievement of the see- plicable previous tax credits shall be ex- 3JN 28,1956.,-" -end objective. Of the 1,260 communities cluded in computing refunds previously [F. R. Doc. 56-5279; Flled, July 3, 1956; 'to which at least one television channel made, and the amount of tax credits shall '8:45 a. m.l " is, assigned, -fewer than 300 have 1 or

82 (89 of 135) Wednesday, July Case: 4, 1956 18-55682, 10/31/2018,FEDERAL ID: REGISTER, 11068173, DktEntry: 24-2, Page 85 of 1244959 more stations, on the air. As for the the proceeding, which was to reach a de- operation.of a larger-number ofstations third objective, approximately 75 percent cision as to the basic lines on which it has been impeded in numerous markets of the population receive service from would be In the public interest to revise by the- absence of a greater number of two or more television stations. Slightly the nationwide television system, and more nearly competitive facilities, de- over 100 communities have two or more thus provide a basis for determining the spite the need for and the capacity of television stations in operation, as com-; specific reassignments which could use- such markets to support a larger-num- pared with 348 communities to which two fully be made in individual communities ber of television outlets, Accordingly, in or more television channels are assigned. in conformity with the nationwide pol- our evaluation of the numerous, diverse 5. The foregoing reflects substantial ieles adopted herein. proposals before us; and in our determi- progress during the four years which 9. In evaluating the proposils before nation of the course which in our judg- have elapsed since the present television us it has been necessary to recognize that, ment offers the best possibilities for both allocation plan and engineering stand- while actions by this Commission de-. the inimediate and long range expansion ards were adopted. Serious problems termfne the numbers of channels which of the nation's television services, we have arisen,-however, which are imped- are available for television broadcasting, have kept in mind the paramount need ing the continued expansion of the na- the extent to which they are actually for more competitive, services. , . - tion's television services. There is gen- utilized depends upon the construction Remedial action Pr6P56ied_ by the par- eral agreement on. the sources of these and operation of stations by qualified ties. 12. Some of the, proposals sub - problems. In brief, they are: brodeasters who are able and willing to mitted under this proceeding were based (a) The limitation to 12 channels in enter this field of private, free enterprise ,onthe allocation of additional VHF spec- the VBF band; and and to cope, as entrepreneurs, with the trum space to television broadcasting (b) Difficulties which have been ex- conditions of the marketplace. The op- and on the assignment of new VEIF chan- perienced-in achieving fuller utilization portunity for profit is accompanied by nels which -this would make possible. of the 70 UHF channels. These difficul- the risk of loss. Whether broadcast op*- Before this proceeding was initiated the ties have been ascribed chiefly to: erations yield one or the other is de- Commission had undertaken- negotia- (1) The large numbers of VHF-only pendent on economic and technical tions with the Office of Defense Mobiliza- receivers in use and the high proportion factors, many of which are beyond the tion to ascertain whether any of the VHF of VHF-only receivers which continue Commission's control. One important frequencies allocated' to governmental to be manufactured. economic factor.is the high cost of the services might be made- available for (2) Performance deficiencies of UHF construction, operation and program- television broadcasting. The Office of transmitting and receiving equipment ming of television stations as compared Defense Mobilization made a careful during the initial 4-year period of the with similar costs for radio stations. Be- study of the. matter but concluded,, in a utilization of UHF for television broad- cause of this, under the present econom- report issued by that Office on April 13, casting., ies of television, fewer communities are 1956, that "national security' require- (3) The consequent preference of able, at this stage, to support television merits and the needs 'of air navigation program and revenue sources for VHF stations than can support radio stations. ,and air communications preclude the re- outlets. Also, because of the dependence of tele- .lease for non-Government use of any of 6. While some of the numerous sug- vision stations on network and. other the very high frequencies now utilized by gestions, proposals and petitions before nationally distributed programming, the the Federal Government." ' Moreover. the Commission last November appeared techniques, developed over the years in this Commission has concluded that it to merit consideration, none was suffi- the aural broadcasting service, which would not be practicable-to obtain a ciently free from disadvantage and diffi- enable numerous radio stations to oper- significant. number of additional -VHF culty to warrant adoption without ex- ate successfully with a high proportion of channels using VHF frequencies, under tensive study and. evaluation. There- local, non-network programming, have our control- and-now-allocated -to other fore -this -proceedlng was initiated on not so far been-developed to as great-ain -services. In these 'circumstances, the November 10,1955, to provide an orderly -extent in the television field. -This has. .proposals looking toward. revision of the basis for examining and comparing the meant that both VHF and UHF stations -allocationplanmon the basis.of additional proposals and comments of all inter- which have not been able to secure their -VHBF channels- must now be-rejected. ested parties. Because the problems principal programs from a major net- -lMoreover, the fact that additional VHF were nationwide in scope, and because work have found survival difficult, if not frequencies cannot be made availablefor widely divergent approaches to their impossible. But since It has also meant television broadcasting. precludes revi- .solution required evaluation initially on that the stations able to offer the largest sion of the allocation plan looking toward a broad, nationwide.basis, the Commis- -viewing audience in any given commun- an al-VHF television system.._As the sion stated, in Its Notice of Proposed ity will normally secure the principal Commission has recognized-, from. the Rule Making, that it would be premature network affiliations, many UHF stations outset, and has frequently reaffirmed, the at the outset to consider proposals whose which normally cannot provide a view- 12 VHF channels alone are not-adequate scope was limited to action affecting only ing audience comparable to those of to make possible sufficient outlets for a single communities or local areas. their VHF competitors have been forced fully competitive television system. 7. Accordingly, the Commission re- to operate on a marginal or submarginal 13. Other proposals before the Com- quested the submission of proposals and basis or cease operation. mission are based on the widespread use comments relating to overall solutions 10. Disparites which occur frequently of additional VHF assignments, particir- on a broad, nationwide basis. At the between the audiences which VHP and larly in the larger markets, using the 12 same time the Commission terminated UHF stations are able to offer advertis- .VHP channels now available, but at five rule making proceedings which had Ing program sponsors and national spot -spacings substantially shorter than the been initiated earlier on petitions for the advertisers have resulted from the seri- present minimum spacings: - While this deintermixture of five individual commu- ous problem of receiver incompatibility -method appears to offer limited possibil- nities (Report and Order). November 10, and from limitations which have been -ities for meeting present needs for more 1955, Dockets 11238, 11333, 11334, 11335 experienced to date in the power of UHF stations in some areas, careful analysis and 11336, FCC 55-1125), and denied a -transmitters and in the sensitivity and -of these proposals discloses difficulties snumber of other similar petitions on selectivity of UHF receivers as well as .which raise very serious doubt that this which rule making had not been initiated the different propagation character- method would adequately serve our long -(Memorandum Opinion and Order, No- istics of the UHF band. range objectives. ,VF stations at sub- -vember 10, 1955, FCC 55-1126). 11. While we are cognizant of the standard spacings would reduce-the serv- . 8. Aided by the proposals, comments jurisdictional and practical 'limitations ice areas of existing VHF stations and and data submitted in this proceeding, ,which restrict the extent to which the breate new interference areas within the Commission has now had an oppor- Commission can ameliorate the fore- which satisfactory signals might not be tunity to examine and compare the dif- going economic and technical conditions, received either from existing stations or ferent basic approaches which are ad- we have endeavored to determine the fron the new stations. Our studies dis- vocated by members of the television in- realistic possibilities for improvement close that unless the existing minimum dustry. The material filed has been through revision of existing television -spacings-were reduced verysubstantially, painstakingly studied and evaluated in allocations. It ,has become apparent the number of additional 'outlets which -the endeavor to accomplish the object of that the construction and successful could be provided over the country by- N~o. 129--- 3

83 (90 of 135) 4960 Case: 18-55682, 10/31/2018,RULES AND ID: 'REGULATIONS 11068173, DktEntry: 24-2, Page 86 of 124 this method would be very limited. Thus, tions obliged to compete with, two or UHF band for television broadcasting. in order to permit the construction of a more 'RF broadcasters. The deinter- The expectation that ultimately the ma- significant number of new VHF stations mixture proposals also envisage, at least jor pait of television broadcasting would t would be necessary to make very sub- in some instances, the transfer of some be carried on in the UHF band was Im- stantial In-roads in the service areas of VHF channels to other cities where they .plicit in the allocation, in the Sixth Re- existing stations. We recognize as urged could be used to increase the number of -port and Order, of 70 UEF channels to by parties to this proceeding that the local VEF services. Thus, deintermix- supplement 12 previously available VHP Interference problems might be limited ture has the dual aspect of reducing or .channels.' But so far this expectation to some extent by requiring the eliminating VHF assignments in some has not been realized owing to difficulties "squeezed-in" stations to employ lower communities and of increasing the num- Which none of the proposals already dis- heights and powers and directional an- ber of VHF assignments in others. cussed can sufficiently overcome. One tennas, and by the use of cross polariza- 15. It does not appear, however, that -of the proposals whose consideration has tion. But we do not believe that the deintermixture at this stage -would be been recommended'in this proceeding creation of numerous small VHF sta- ,practicable in a sufficient number of -and has been advocated in the past by tions" with.,,very limited service areas communities representing a sufficiently industry representatives in submissions would further the'-objectives of our large segment of the total- population to the Commission and to Congress, nationwide television system. Similar to provide significantly enhanced oppor- should be examined. That is the pro- proposals were submitted to the Com- tunities for the fuller utilization of the posal to shift all television broadcasting .mission when the present television allo- UHF channels on a nationwide basis. in the United'States, or in a substantial cation plan was under consideration. We believe that in some types of situa- portion of the country, to the ultra-high They were rejected, for reasons set out .tions, which are discussed later, deinter- frequency band. In the Sixth Report and Order (Para- -mixture merits careful consideration 'as 17. Although it would be premature at graphs 136 et seq.). In our opinion those .ameans of increasing'the opportunity for -this stage-for the Commission to adopt .reasons remain essentially valid today. -effective competition among a greater final conclusions concerning the feasi- There is little likelihood, moreover, that number of stations in certain individual Aiity of transferring television to the even with the maximum possible utili- areas. Most of the deintermixture pro- UHF band throughout.the United States, zation of VHF "squeeze-ins", assign- posals 1 have been confined to communi- or, alternatively, in a major portion of ments could be made 'available In suf- ties where UHF stations commenced, the country, we believe that our effort to flcient numbers to accommodate the .operating before the advent of one, and find a solution to the nationwide tele- maximum number of television stations in some cases before the advent of a 'vision allocation problem should not be for which it may be expected there will -second VHF service, .and where a high concluded without a careful and thor- eventually be econonic support in the -percentage of receivers in the hands of ,ough exploration of this approach. An- United States, Yet It Is clear that the the local residents can receive UHF sig- other major consideration is involved. widespread use of new VHF assignments .nals. There are serious obstacles to a *As discussed later in more detail,' there at sub-standard spacings would discour- .more extensive nationwide program of are growing indications that the' needs age the building of additional UHF sta- -deintermixture at this stage. Thus there of other services for additional spectrum tions, and In many Instances would is little support for the .elimination of -space are increasing 'apidly. "Thb fact reduce the opportunities for successful VHF assignments in areas with little that the lower part of the VHF spdctrum operation of UHF stations now on the UHF set saturation. In other instances seems well suited to their needs indicates air. Thus in most of the larger markets the elimination of local VHF channel -the likelihood that it will be possible 'to the assignment of a VHF station at sub- Assignments would not accomplish effec- make effective use of the VHF frequen- standard spacings would operate to place tive deintermixture owning to the local cies now allocated to television, for other an artificial ceiling on the number of reception from VHF stations located in .nonbroadcast services. stations which could eventually- be es- neighboring communities. In still other 18. If suitable means could 'be found tablished. For all of these reasons we cases the elimination of local VHF as- to overcome the difficulties inherent In have been unable to find that the addi- signments would.be impracticable at this 'so major a frequency reallocation as tion of new VBF assignments at sub- stage owing t the fact that substantial moving television to UHF, and if UHF standard spacings. Would serve the pub- "white areas" would be created. It could be sufficiently developed to permit lic Interest. For reasons which are dis- seems doubtful for these reasons that the the elimination of VHF channels with- cussed later, we believe, however, that elimination of VHF channel assignments out loss of service, a number'of basic It may be desirable to relax the present would be practicable at this stage in a advantages -would' result. All stations rules concerning minimum assignment .sufficient number of comiiunities to en- would be able to'compete on ,a much separations to the extent necessary to courage significantly increased nation- more nearly comparable 'basis techni- permit the assignment of additional wide use of the UHF band. Nor would cally, since there is much less disparity channels which- do not meet the sep- .this technique alone satisfy the need for between the lower and upper UHF chan- aration from the new city, provided all increasing the number of outlets in many nels than -between the VHF and UHF separations will be met from the new markets, both large and small, which television channels. Thus thb' coverage transmitter on these channels. are at present inadequately served, and of' competing- stations would be much 14. Some of the proposals before us which accordingly offer only limited op - more comparable than at present, and advocate the deintermixture of VEF and portunities for competition among sta- competitive opportunities among broad- UlI-W channel assignments in order to tions, among networks, and among other casters, among networks and among more nearly equalize, competitive op- ,program and revenue sources. 'other progranA and revenue sources would portunities In individual markets while 16. Because deintermixture, alone, be considerably enhanced. 'It may be at the same time utilizing both the VHF .cannot solve the entire problem, we have expected that this would encourage the and UH bands in the nationwide televi- found it necessary to consider additional building of numerous additional stations sion system. Citing competitive diffi- means for making possible the full utili.- which would bring a first local service to culties of UHF broadcasters, particularly zation of the UHF band for television some communities and much needed ad- in markets which are served by two or broadcasting. As early as 1945,2 recog-s ditional services in others. These achive- more satisfactory VHF signals, the pro- nizing the inadequacy of 13 VHF chan- ments would be aided .by the fact that ponents of deintermixture have advo- .nels for a fully developed. nationwide broadcasting in a single band would, cated the elimination of some or all of television system, Commission policy has after a suitable transition period, elim- the VHF channel assignments in desig- looked toward the extensive use of the inate the crucial problem of receiver nated cities. It is contended that this incompatibility. As compared with al- A petition filed on April 18, 1955, by Mr. ternative golutions' which have been con- would improve the opportunities of the .Albert J. Balusek of San Antonio, Texas, pro- local UHI broadcasters to obtain, or in sidered, the use of the UHF'band ex- posed that the Conmmission deintermix UBF -elusively would raise the ceiling of the some cases to retain sufficient network and VHF channel assignients In all com- •maximum number of television stations programning and national advertising 'munities throughoui the United States. We ,are obliged to deny -this -petition- for the which could eventually be built and suc- revenue to support successful station reasons set out in paragraph 15. - 'cessfully operated. And, as stated above, operation which, it Is alleged, would be 2Report of Allocations from .25,000 Ic to after the discontinuance- of VHF televi- Impossible for q gqod many UH1' sta- 30,000,000 kc, May, 25, 1945, Docket No. .6651. sion broadcasting, additional VHF fre-

84 (91 of 135) Wednesday, July Case: 4, 1956 18-55682, 10/31/2018,FEDERAL ID: REGISTER 11068173, DktEntry: 24-2, Page 87 of 1244961 quencies- would" be made available to despite disappointments that have-been ife sufficiently long to co-eir the tiseful life meet the growing needs of other services experienced during this initial four year of VHF-only receivers in the hands of for VHF spectrum space. period of development of UHF transmit the public, and to permit the inortiza- - 19. Before'it would be possible, how- ting and receiving equipment, It would tion, over a reasonable period, of VHF ever, to achieve these impressive advan- be erroneous to base our policies on an transmitting equipment whose use would tages it would be necessary to find solu- assumption that UH1F transmission and be discontinued when VHF broadcasting tions for numerous problems which i reception Is not susceptible of significant- would be terminated in designated por- transition to all-UHP television would Improvement. On the other hand, ad- tions of the United States. One method involve. These problems fall into sev- ditional facts and data are needed in or- which may merit'consideration is to re- eral major groups. The first group re- der to make a sound determination as to qulre VHF stations to broadcast simul- lates to the technical transmission hind whether the fullest possible exploitation taneously.on UHF channels during all or reception potentialities of UH. It will of UHF's technical potentialities will some, part of the transition period. It be necessary to ascertain the extent to enable UHF to render a service which wbuld seem probable that if it should be which UHF transmission and reception will Justify elimination of VHP broad- decided to go to an all-UHF system, th can be improved, In order to make a casting in a major part or throughout announcement of a decision>.that VHF realistic determination as to whether the United States. - broadcasting would-be discontinued on bonversion to all-IHF television 21. The answer to this question will !vfixed future date,. coupled with interim throughout the United States or in a not depend on whether all the disparities simultaneot UHP broadcasting -by-VHBF major portion of the country would or between UHP and VHF transmission and stations, would lay the necessary basis would not result in the loss of services reception can be completely eliminated. for discontinuance of the manufacture available now or potentially available We recognize that some differences in- of VHF-only receivers. " o 'with the use of VHF channels. In order here In the essential characteristics of ' 24.-The problem of -getting UHF to ascertain the capacity of UHF trans- the two frequency bands and that it may equipped set6 into the hands of the-pub:- mitting and receiving equipment to ren- never be possible to eliminate them en- lie is not, however, subject to complete der satisfactory service without the tirely. The problem Is not, however, control, under existing law, by either.the concurrent use of the VHF band for whether these disparities can be totally Commission or the industry. For even television broadcasting, the Commission eliminated, but whether UHF transmis- if it were to be determined that 'on a believes that a program of expedited sion and reception can be perfected sum- mass production basis improved all. ,research and development should be ciently to enable an all-UHP system to channel sets can be developed at only a launched without delay with the object render service to'the public at least as moderate cost differential from VHF- of achieving the maximum possible In- good as or better than the service that only sets, the forces of price competition crease in the range of, and the reduction can be provided to the public under the in the industry are such as to magnify of the shadow areas of UHP stations. present system. It may very well be the effects, of such slight differentials This research and development program that owing to the opportunities which a and in the absence of some -additional should be concentrated on: one-band system with 70 channels will spur or protection, to have the cheaper, (a) UEF transmitters, with emphasis open up for increased competition, and less-complete*set drive outthe all-chan-1 on increased transmitting power and the for the construction and operation of a nel sets. Any private. agreement among feasibility of the use of such techniques greater number of stations and success- manufactufers to mhnufacture only as UHF boosters and satellites. ful operation of more networks and other •UHF equipped sets would- run the risk -of violating the " (b) Receivers and receiving antennas, program sources, a one-band system anti-trust laws. And with the object of increasing the sensi- would permit more communities to-have in view of this fact, and the public's re- tivity of and reducing the noise factors local service and would provide a larger luctance to spend additional .sumac.in .of receivers; and improving their selec- number of multiple services to a greater -anticipation of future developments in tivity in order to permit the reassign- portion of the population than would be the television art, we believe it may-be .ment of UHF channels with a nmmum possible with the combined use of the essential for the Congress, cdntempora - -number of restrictions on station separa- UHF and VHF bands. This may be pos- -neously' without explorations of "tho tions. sible despite certain advantages in the technical problems of UHF operation, to 20. The Commission will cooperate use of VHF. frequencies for television examine the advisability of legislation to fully with all interested groups In or- broadcasting. The critical factor is that relieve the situation. Such legislation ganizing the orderly conduct of the fore- there is an inadequate number of these -might take the form of'special tax re- .going research and development pro- frequencies, and the use of the 12 VHF lief, such as that already suggested, to gram. While it would be premature to channels has discouraged the utilization equate all-channel receiver costs with anticipate the results of this program, of more than a fraction of'the UHF as- those of VHF-only sets, or perhaps more 'the Commission believes that consider- signments which were made available for drastic remedies such as the prohibition able encouragement is offered by recent television broadcasting in 1952. of the shipment in interstate commerce notable advances in increasing the power 22. When we learn the results of the of other, than UHF-equipped receivers ,of UHF transmitters and in tubes for suggested program of UHF research and might be found to be necessary. We can improving the characteristics of UHF re- development, we will be better able to make no definite recommendations -at ceivers. Notwithstanding the disad- ascertain the full practical capabilities this time as td specific legislation; we do vantages frequently associated with UHF of UHF. On that basis we will then be believe, -however, that this is an impor- broadcasting-there are some respects in able to evaluate UHF's capacity to sup- tant facet of the overall problem which which the UHF band is superior to the plant VHP broadcasting without loss of cannot be overlooked. VHF channels allocated to television. service. We will also be in a better posi- 25. For all "the foregoing reasons the UHF reception, for one thing, Is freer tion to determine whether UHF alone Commission is convinced'that it should than V1H from interference caused by would render adequate service through- now undertake a thorough, searching local noise generators such as Ignition out the country, or whether it would'be .analysis of the possibilities for imprbving " systems, electrical appliances and necessary to confine all-UHP television -and 6xpahding the nationwide: television 'switches, and is less susceptible to inter- to areas, such as east of the Mississippi system through the.exclusive use of the ference due to multipath reflections. River, where owing to the greater popu- UHF band throughout or in a major por- Also, if future developments result In the lation density, and the larger number of tion of the United States. In order, how- .production of single-band UHF receivers cities able to support stations, service ,ever, to lay the basis for the formulation they could be simpler in design, less areas need not be as large as in the less of a definite plan or proposal in a form densely populated areas to the west. , suitable for- consideration in a formal costly, and more efcient than present 23. The second major group of prob- rule making proceeding,'it will be neces- VBF-only or combination UHF-VHF re- lems involved in an all-UHF television sary first to obtain facts and data relat- ceivers, owing to the fact that the ratio system concerns the need to establish ing to the basic problems, discussed in between the top and bottom UHF tele- methods and timing for transition from paragraphs 19 through '24 concerning vision frequencies is smaller than be- the present system which will minimize UHF's capacity to -provide a complete tween the top and -bottom VHF cost and dislocation to the public and to .television service without the concomi- 'frequencies now allocated to television. the television industry. It would appear tant use of VHF channels, and the best The Commission believes, therefore, that that a transition period would have to means of effecting a transition to an all-

85 (92 of 135) Case: 18-55682, 10/31/2018,RULES AND ID: REGULATIONS 11068173, DktEntry: 24-2, Page 88 of 124

UHF system, The Commission will wel- rooftopand treetop levels, and in general '3. Whether a reasonably high propor- come the submission of comments and the base station uses lower antennas and tion of the sets in use can receive UHF data on these problems by all interested lesser powers than broadcast stations. signals. parties. The comments should refer to The governing factor,- however, is the 4.-Whether the terrain is reasonably "FCC Inquiry Into The Feasibility Of severely restricted -powers and antenna -favorablefor UHF coverage Transferring Television Broadcasting To heights which are. available to -mobile - 5. Whether, taking into account all the The UR- Band," and should be sub- - units. Only in exceptional cases do they local circumstances, the elimination of a mitted, In an original and 14 copies, by operate from clear sites, and it is im- VHF channer would be consistent with October 1, 1956. The Commission will perative that for longer ranges they have the objective-of improving the opportu- decide what further proceedings will be frequencies suited to their- needs. The nities for effective competition among a appropriate after considering those lower VHF frequencies are less affected greater number of stations. comments, by hills, structures-and vegetation: They The desirability of assigning a first VHF 20. Concerning thefirst group of prob- also permit longer mobile antennas and channel or of adding an additional VHF lems relating to the technical perform- more sensitive receivers. These factors ance of UHP transmitters and receivers channel would depend brhiclpallyupon: indicate the desirability of considering to locate the we believe that It will -be necessary to the allocation of lower VHF frequencies 1. Whdther it is possible achieve some progress new transmitter so as to meet minimum with the suggested to the land mobile services. transmitter spacings. program of research and development 30. It is evident that the need and de- before It will be useful to establish an 2. Whether, in cases where it is neces- mand for more accommodation for land sary to move the channel from another extensive record on these subjects. The mobile services has been increasing sub- Commission will, however, accept any city, there is greater need for the chan- stantiallyin the recent past and promises nel in the area to which it is proposed comments which interested parties may to increase further as the industrial uses feel It may be useful to submit on this "of radio continue to Cevelop. These fac- to be assigned. aspect of the matter at this time.' We 3. Whether the addition of a new VHF tors raise basic questions concerning assignment would be consistent with the will especially welcome comments at this spectrum allocation which go further time concerning the most effective meth- objective of improving the opportunities than the requirements of television for effective competition among a greater ods for conducting and expediting this broadcasting alone, and which take into suggested research and development pro- number of stations. account the rising needs of other ser- 32. In appropriate instances It may be grain, vices. Thus the question of the transfer 27, An additional group of problems desirable, in order to attain the objec- of television broadcasting to UHF has tives stated in the preceding paragraph, concerns the question of the most effi- the dual aspect of the possible improve- cient utilization of the VIF frequencies to add an additional VHF assignment ment it may provide in the opportunity which meets all requirements of the now allocated to television broadcasting, for achieving the goals of the nationwide taking into account both the problems -present rules with the exception that the television system upon the one hand and minimum spacing from the city-where of television allocations and the uses to of accommodating expanding needs and which these frequencies might be put by the new assignment is proposed would requirements of industry on the other. not be met. It would be feasible, how- other services. It would be premature Interim action. 31. There remains the to examine the latter uses in detail, at ever, in these instances, by appropriate -problem of interim action which should location of the new transmitter, to meet this stage, since even assuming the suc- be taken pending resolution of the long cessful disposition of the technical prob- all transmitter spacing requirements. range problems already discussed. Since Since it is the spacing from the trans- lems of an all-UHF system developments some years would be required in any In the Interim may considerably alter the mitter that is critical, we believe, that it event for the full implementation of an will be in the public interest to relax the present circumstances of the other serv- all-UHF system, the Commission believes Ices, At the same time, It may be useful 'present rules in order to permit new as- that steps should be taken in the mean- signments that can be utilized within to note briefly several developments time to improve the opportunities f6r which Indicate growing need of addi- reasonable distance from the city in con- effective competition among a greater formity with the minimum transmitter tional space In the VBF portion of the number of stations. As, already indi- Spectrum for other services. spicing requirement. In this way addi- cated, a basic choice in many markets at tional service can be provided without de- 2.8, Recently there has been consid- this time lies between the elimination erable development of techniques em- parting from the engineering standards. of VHF channel assignments to create Implementation of interim revisions of ploying ionospheric scatter from point- improved opportunities for UHF broad- to-point or fixed communication. It is the table of assignments. 33. This pro- casting and, alternatively, the assign- ceeding has served the purpose In use outside the United States and ment of additional local VHF channels. for which appears to offer possibilities for domestic Because of the widely varying circum- it was instituted, i. d., determination ,of use and for international use between the the basic lines on which revisions of the stances in individual markets and the existing television United States and other countries. The numerous factors which bear on the allocation plan should useful frequency range is between about be considered. It can therefore now be choice- of techniques in any individual terminated. We announced in 30 and 00 me. As the sunspot cycle ad- community or area, it is not possible the No- vances widespread interfetence is caused to formulate rigid criteria whose per- tice of'Proposed Rule Making adopted to the mobile services which are now on November 10, 1955, that after this functory 'application to individual cases determination using the same frequencies for domestic will automatically indicate the course had been made we would operation. Whether the use of ionos- which would best serve the public inter- proceed to the consideration of proposals pheric scatter circuits is limited to est in each community during the for such channel reassignments as might foreign areas or In the-event that there interim period. We have concluded, be made in conformity with the general will be domestic demands for this service, ,however, after extensive review of all policies adopted herein. the question is raised whether frequen- 'the proposals which have been submitted 34. Accordingly, we are adopting to- cies In the range of 30 to 60"mc should be to us for the elimination or addition of day, a number of Notices of Proposed set aside for this service within the next commercial VHF assignments, that the Rule Making in which we will consider 5 or 10 Years. following considerations wil have im- a series of proposed channel reassign- 29, The conditions of use and the Sportant bearing on decisions in specific' ments which appear to merit considera- characteristics of radio systems em- communities or areas. In markets with tion in conformity with the objectives ployed by the land mobile services In- one or more commercial VHF assign- outlined in this Report and Order. For ments, the merits of proposals to elimi- example, in a number of communities, dicate that the lower VHF spectrum may including Madison 3 and Elmira,3 we are be well adapted to their needs. Many nate a VHF commercial assignment would depend to a large extent on such proposing to delete a VHF channel or re- of these services are related to trading serve it for educational factors as: - use. It appears areas In much the same manner as the 1.. Whether significant numbers of on the basi of the fActsbefore us that broadcast service. Thus they have need people would lack seivice'as a result of such action offers reasonable prospect for substantially the same coverage areas. the elimination of the VHF channel. However, only the base transmitting and 'Chairman McConnaughey and Commis- 2. Whether one or more-UHF stations 'sioners Doerfer and MSck dissented from this. receiving antennas can be raised above are operating in the Area. - proposed rule making. - - . .. .

86 (93 of 135) Wednesday, July Case: 4, 1956 18-55682, 10/31/2018,FEDERAL ID: REGISTER11068173, DktEntry: 24-2, Page 89 of 124 4963 for improving the opportunities for ef- amendments to the Table of Assign- Docket--No.-11532, and the proposal-is fective competition among a greater mentsmay do so. accordingly before us for review in the number of stations in these areas. In 38. In order to assist the Commission instant proceeding.: After careful ex- other communities, such as Fresno 'and in evaluating proposals for channel re- amination of the-comments which have Peoria,' we are proposing to shift VHF assignments which, involve the removal been submitted in support of and in op- channels to other communities, which of an existing VHF assignment for which position to these P~roposals the Commis- would have the added advantage of mak- an application Is on file or a construction sion.has concluded, in the light of the ing additional- comparable facilities permit has been granted, It is requested decisions reached.in this proceeding,.that available in VHF markets. In several that the parties furnish data, In ac- the public interest would be served- by other areas, such as New Orleans' and cordance with the procedure set out in increasing the maximum power of uHF Albany," it appears that similar objec- paragraphs 39 and 40, showing the serv- stations to 5,000 kw. It has accordingly tives can be achieved by deleting or ice of all stations in the area involved. . decided to amend the relevant rules, in- - shifting one of the two VHF channels 39. As the Commission pointed out in cluding the curves already mentioned; assigned in the area. the Sixth Report and Order and other in 3Pgures 3 and 4 of § 3.699. Equipment 35. In communities such as Charleston documents, there is no available means is iow availhble and in use -.which- yields and Duluth-Superior, which have two for predicting precisely the service areas effective radiated power of 1,000 kw for VBF channels assigned and no UHF sta- of a specific television station which will VHF stations. - Encouraging -experi- tions in operation, we find that It is pos- take into account time variations and nents have been conducted with URF sible to add a third VH3F channel by variations in location, with particular transmissions at 4,500. kw. and even "drop-in" or by shifting an unused edu- reference to uneven terrain. Propaga- -higher power. The increase at this-time cational assignment for which there ap- tion data gathered since the Sixth Re- in the maximum power authorized -for pears to be no realistic prospect of early port and Order are now available. These UHF stations seems 'particularly: appro- use. In Miami,$ which already has three latest data, as analyzed by the Commis- priate in view of the importance Which is commercial VHF assignments, we are sion's staff and others, should be used, attached to the research and develop- proposing to add a 4th which It appears since they Improve somewhat the pre- ment program already discussed. - .can be accomplished in accordance with dictions which can now be made in the 42. In a Further Report and Order minimiuh transmitter spacing require- average case. The new data and adopted November 30, 1955 (Docket Nos. nents. 'We believe this course of action methods for employing them are'set out .-11181 and 11532, FCC 55-1198), the Com- -is more meritorlous than deletion of two below, mission brought -within this general tele- or all-VBF channels from Miami, as 40. The data supplied should be based .vision allocation proceeding the proposal some petitioners and parties to this pro- 'on the following assumptions: to increase the antenna height at which ceeding have proposed. Where a 4th (1) In computing coverage, stations maximum power could be authorized for VHF channel can be employed without should be assumed to be operatingwith VHF television stations in Zone I. Pre- violating our engineering standards, de- maximum po*er at 1,000 feet above aver- -viously, on July 20,. -1955 (Report and "letion of VEF channels would not appear age terrain, with the transmitter located Order, Docket-No. 11i81, FCC 55-802), to be warranted. in the center of the principal commu- the Commission had announced the - 36. In some iharkets such as Toledo, ,nity, except where the minimuni trans- adoption of an amendment to § 3.614 where there are only two commercial mitter separations proposed require . (b) of the rules which would permit VHF VHF assignments and no UHF stations 'transmitter location elsewhere. television stations in Zone I to use maxi- -operating, we find that despite the ap- (2) 1,000 feet antenna height above mum power at -antenna-heights up to parent capacity of such markets to sup- average terrain should be used for all 1,250 feet, instead of up to 1,000 feet port additional stations, It is not possible pertinent directions. -as provided in the rules. The effective to assign an additional VHF channel be- (3) Service should be drawn for the date for that amendment was designated cause there -are none available which limit of the Grade B contour as limited as August 31, 1955. This effective date would meet minimum transmitter spac- by noise or Interference, as the case may was subsequently extended in a series of ings. Nor would it be practicable to en- be. -Orders issued prior to November 30, 1955, courage the expansion of local services (4) The extent of Grade B service at which time the Commission vacated on .locally assigned UHF channels by should be computed in accordance with the Report and Order of- July 20, 1955, eliminating a local VHF assignment be- the tables set out below, and made the record in Docket No. 11181 cause, apart from the absence of sig- (5) Only co-channel interference need part of this general television allocation nificant UHF conversion in the area, the be considered. -proceeding. The rule making proposal reception of signals from VHF cities lo- (6) Single station method of inter- -under the former Docket.No. 11181 is cated elsewhere (in this case, Detroit) ference should be employed, I. e., the accordingly before us for decision. -would make it doubtful that effective de- station causing the greatest penetration - 43. In re-examining this proposal we intermixture could be achieved. Is assumed to mask the interference of have again-carefully reviewed the corn- 37. Parties interested in these proceed- other stations. ments, supporting and opposing the ings will have full opportunity to submit (7) In computing interference or serv- change. We have also considered a num- comments in support of or in opposition Ice, all stations presently on the air or her of petitions for reconsideration or to these proposals, and to submit counter- authorized; and pending applications, - for stay of our Report and Order of July proposals. The proposals put out for should be taken into account, whether 20, 1955 (Docket No. 11181) . We also rule making at this time do not cover all UHF or VHF. However, where a station have considered the issues concerning the amendments to the present Table of that Is not yet operating is considered, maximum antenna heights and powers Assignments which have been proposed this fact should be indicated. • for VHF stations in Zone I in the light in petitions now before us. We will en- If the parties desire, data based on of the conclusions reached in this pro- deavor to act on all petitions as rapidly other assumptions may be submitted in ceeding concerning-the measures which as possible, including those already be- addition to the foregoing. will best facilitate the building and oper- fore us which have not yet been acted 41. In a Notice of Proposed Rule Mak- ation of greater numbers of television Ing adopted June 22, 1955 (Docket No. stations in both large and small markets. on and in those on which rule making This objective is paramount, and fur- proceedings have been initiated but not 11433, FCC 55-705), the Commission requested comments on a proposal toraise - nishes the basis for our conclusion that yet concluded. Parties desiring to file the maximum power of UHF television it would be undesirable to alter the an- petitions for additional or alternative stations from 1,000 kw to 5,000 kw, and to - substitute new curves in Figures 3 and 4 - 'Fied by Elm City Broadcasting Corpora- 'Commissioners Doerfer and 1ack dis- tion, The Air Transport Association of Amer- sented from this proposed rule making. of § 3.699 of the rules governing reduc- Ica, the Ultra High Frequency Coordinating- rChairman McConnaughey and Comnis- tion of power for antenna heights ex- Committee, Greylock Broadcasting Company sioners Doerfer and Mack dissented from this ceeding 2,000 feet. In a Further Report (WMGT), Springfield Television Broadcast- proposed rule making. Commissioners Web- and Order adopted onDecember 14,1955, I nug Corporation (WWLP), Plains Television ster. Bartley and Lee concurring but would The Helm Coal Com- propose the deletion of Channel 6 also. the foregoing rule making proceeding'e f panyCorporation, (WNOW-TV). (WICS). Rossmoyne Corporation 'Commisioners Webster and Mack dis- was incorporated as part of the general (WOMB-TV), Southern Connecticut and sented from this proposed rule making. television allocation proceeding under ' Long-Island Television Company-(WICC-TV).

87 (94 of 135) 4964. Case: 18-55682, 10/31/2018,RULES AND ID: REGULATIONS 11068173, DktEntry: 24-2, Page 90 of 124 tenna height and power maxima at this tion of minimum separations, the Corn- has concluded that it would not serve the time., As we pointed out in our Report mission .has concluded, for the reasons public interest to remove the maximum and Order of July 20, 1955,,there were already given, that the' authorization.of limitations toutnthepresent rules at cogent reasons for rejecting, In'the Sixth . additional VHF stations.at sub-standard the present time. -The basic consider- Report and Order, proposals to permit transmitter spacings, wo I dnot be de- tions :which apply here are similar to all stations to use maximum power at sirable. those-already discussed in paragraphs 43 2,000 feet, Irrespective of location. In 47. On. October 17, 1955, the, Ultra and 44, above- relating to the proposal to that document the Commission adverted High Frequency Industry Coordinating increase the"lantenna height at which to the lower separations In Zone I, the Committee filed a separate petition re- VHF stations in Zone I are permitted to shorter distances between cities, and the questing, inter alia, that the Commission use maximum power..., , need for more data on operations over consider the television allocations prob- . 51. In accordance with the decision 1,000 feet. The pattern of VHF stations lem under a broad. rule making pro- reached on the proposal to increase the In Zone I Is now well established on the ceeding. The instant rule making maximum power of UHF stations to 5000 basis of the height and power rules proceeding corresponds with that're- kilowatts, discussed in paragraph 41 adopted in 1952 when the Sixth Report "quested by the petitioner. The Ultra above, it is ordered, That effective Au- and Order was issued. High Frequency Industry- Coordinating gust .1, 1956, Part 3 of the Commission's 44. The comments and data submitted Committee also requested the deferment rules is amended as follows: In the instant proceeding also indicate of authorizations or modifications of A. Section 3.614 (b) is amended by that to some extent, the overlap of serv- -authorizations which would increase in- -deleting in the table the expression "30 Ice areas tends to diminish the oppor- termixture pending the conduct of the dbk. (1000 kw) "- and substituting there- tunities for the building and successful general proceeding. That portion of the fer "37 dbk (5000, kw) ". operation of a larger number of stations, petition is now moot, since we are now B. Section 3.699 is amended by the both in the VHF and UHF bands, in -terminating this proceeding, deletion of Figures 3 and 4-and the sub- smaller communities neighboring the 48. 'On October 7, 1955, the American stitutiontherefor of the attached.Fgures larger metropolitan areas. The power Broadcasting Company 'filed a petition 3 and 4. Increases sought for Zone I would tend requesting the deintermixture of some , 52. Authority for the foregoing amend- to augment these effects of overlapping communities, the reduction of VHF sepa- ment is contained in sections '303 (a), of service areas. In these circum- rations and -other .revisions, to the (b), , (e), (f), (g), (h)' and (r) and Stances, taking into account the objective present rules. These proposals of the 4 (i) of the Communications Act of 1934, of facilitating the construction and oper- American Broadcasting Company have as amended. ation of a larger number of television been superseded by comments filed under -5.3. In accordance'with the conclusions stations, the Commission has come to the the instant proceeding., It is not neces- reached herein: it is ordered, That this conclusion that it would be preferable sary, therefore, to give, separate con- proceeding is terminated, including that not to adopt even the compromise in- sideration to this petition. . Portion of this proceeding concerning crease contemplated in our Report and 49. On November 9, 1955, Scharfeld amendment of the rules governing max- Order of July 20, 1955. In reaching this and Baron of Washington, D. C., filed a imum antenna heights and powers in decision, the Commission has borne' in petition proposing that channel assign- Zone I, which was formerly considered mind not only the possible impact of the ments be made on the basis of individual under Docket No. 11181. change on UHF stations in Zone I, but applications rather than under a fixed (Sec. 4, 48 Stat. 1066, as amended; 47 U. S. C. also the needless burdens which would be 'Table of Assignments. The Commission 154. Interprets or applies sec. 303, 48 Stat. thrust on VHF stations, which would be has given careful consideration to this -1082, as amended; 47 U,. S. C. 303), faced with the alternatives of sustaining, proposal, but is not persuaded that it Increased interference from 'co-channel would be in the public interest to aban- Adopted: June 25, 1956. stations taking advantage of the pro- don the Table of Assignments at this Released: June 26, 1956. posed rule change, or of increasing the time. Before the Sixth Report and Order . FEDERAL COMrUNICATIONS8 heights of their own antennas in order was adopted the Commission considered . CoMOhssIoN, to offset It, Owing to the added cost, proposals to assign- television channels [SEAL] MARY JANE MOzRRS, local zoning restrictions and air space .on the basis of individual applications. Secretary. considerations not all VHF stations in It was decided, however, for reasons set Zone I would find it possible to increase out in that document, that it would be The accompanying-Tables, which have their antenna heights. Thus this pro- preferable to establish a table of assigr- been drawn up on the basis of new propa- posal would tend to unbalance the estab- - merts subject to modification through gation data,' provide the basis for de- lislhed pattern of VHF service In Zone I, rule making proceedings. Although not termining the Grade B service contours a result which would not be justified by all the reasons given at that time are of television stations inthe presence of the extension of service areas which the applicable now to the full extent they noise and co-channel interference. amendment might make possible in a were in 1952, when a large backlog of ap- In order. that rapid determinations relatively few cases. -plications would have rendered the ap- may be reached, an abbreviated method 45. Ii our Memorandum Opinion and -plication basis almost unmanageable, the is to be used in employing the Tables. In Order adopted December 14, 1955, we Commission hesitates to discard the table constructing the Tables it'has been as- listed five petitions which related directly • and thereby incur delays which may oc- sumed that a contour which reflects the to the matters under review in the gen- cur in cases where applications propose effect of edch interfering station sep- oral television allocation and which. we conflicting assignments. Moreover, re- arately will approximate that derived announced we would, accordingly, contention of the present system of fixed from computing the simultaneous effect Sider In these proceedings. It is now assignments subject to modification in - of several interfering signals since the appropriate to 'consider these petitions rule making proceedings is desirable for interference from the nearest station In the light of the decisions reached implementation of the policies adopted will predominate. herein. The petition filed April 18, 1955, in this Report and Order. The Tables are based on new minimum by Albert J, Balusek of San Antonio, 50. In our Further Report and Order local field intensities of 35, 44, and 53 Texas, has 'already been disposed of. adopted in this proceeding on.November dbu in the presence of noise for low VHF, The remaining four are dealt with in 30, 1955, the Commission gave notice that high VHF and UHF, respectively, and on the succeeding paragraphs. , it would consider herein the petition a maximum-receiving antenna discrimi- 40, On June 21, 1955, the UHF In- which Northern Pacific TV Corporation nation of 6 db for VHF and 13 db for dustry Coordinating Committee re- of Spokane, Washington, filed on No- UHF. These new figures are employed quested that the Commission amend the vember 17, 1954,.requestin'g the amendr rules so as to permit the authorization ment of § 3.614 (b):of the rules so 'hs to ' See "Present Knowledge' of Propagation In of WF stations on a case-to-case basis permit stations operatlng on- Channels the VHF and UHF TV bands," .W. C. Boese at lower separations than are permitted 2-6 in Zone T1 to operate with maximum and H. Fine TRr 2.4.15, November 15, 1955. at Present, Whether such authoriza- power of 100 kw Irrespective of antenna 8Concurring statements of Commissioners I In hHyde, Webster, Bartley and Mack and dis- tions were processed on a case-to-case height. On the bass of careful con1sid- senting statement of Commissioner Doerfer basis or on the basis of a general reduc- eration of this proposal the Commission Iled as part of original document.

88 (95 of 135) Wednesday, Juty Case: 4, 1956 18-55682, 10/31/2018,FEDERAL ID: REGISTER11068173, DktEntry: 24-2, Page 91 of 124 -4965

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89 (96 of 135) 4966 Case: 18-55682, 10/31/2018,RULES* AND ID: REGULATIONS 11068173, DktEntry: 24-2, Page 92 of 124

diagram. In the example d2 is 208 miles. These points will be positioned sym- metrically with relation to the point already determined above and will indicate where noise will limit service to 70 percent of the locations and the interfering signal will limit service to 70 percent of the locations. The cumulative effect would thus be a limitation of service to 50 percent of the locations. The Grade B contour of Station A as limited by noise, and interference from It i,, Station B will be determined by an arc of a circle drawn through the three points which have been located. The above procedure should be repeated for Station C. The Grade B contour limitations for Station A are shown in the figure as indicated by the arrows. TALE I-DISTANCE TO NoIsE LrIMTED CONTOUR OR LocATIONS INDICATED

LOW Hfgh UnF VHI VHF

Miles Miles Mies At 50 percent locations ------78 70 40 At 70 percent locations ------71 60 45

TABLEHI-MrNruUM SPACING ISEQUIRED SO TRAT GRADE B SERVICE CONTOUR Is LIMrErDBy NOISE ONLY

VHFLOW VILFHigh UIn

-Miles Mles Mies Offset------271 247 155 Nonoffset ------364 320 239

,TAmLE III-DISTANCE (dt IN MILES) TO GRADE 3 INTERFERENCE FREE SERVICE- CONTOUR IN TIE DIRECTION OF AN INTERFERING STATION AT SPACING FZGURE 1. INDICATED

Example of Service Computation-Low VHF. Low VHF High VHF UHF Spacing T- I -. ! F- i (miles) Offset Non- Offset Non- I 1 l i l l l | I [ l I offsetNon. 6o 0 /00 A-o 0o .. 5"o offset offset offset .Scale In Mes. 100--.... 26.5 -- - 31.0 - ...... - 37.0 ...... 110 ----- 30.0 -----. 34.0 ----- 40.5 ...... 225 miles from Station'C. Station 120----- 32.5 ---- 37.5 ----- 43.0. terference on the basis of the single sta- B is 330 ----- 35.5 ----- 40.0 ----- 45.0. tion method of computation.' Linear 290 miles from Station C.' The prob- 140 ----- 38.5 ---- 43.0 ----- 47.0 ..... 150-...---41.0 -... 46.0 ----- 4&0 ..... Interpolations may be used for distances lem is to determine the limitations of 155 ------.-.-----.-.-----.-.-----.-.----. 49.0 ...... between those listed. the Grade B contour of Station A in the 160 44.0 ------48 5 ------...... Table IV gives the radii of the inter- presence of noise and the interfering 70 - 47.0 ------51.0 ...... 180 50.0 ------53.5 ------...... fering signals which reduce the 70 per- signals from Stations B and C. 1g0 -...... 52.5 - -. 6-5 ------41.5 cent noise limitation to an overall From Table I draw the 50 percent and 200 ----- 55.5 37.5 5.5 42.5 ------43.0 210---- 58.5 40.0 61.0 45.5 ------44.5 limitation of 50 percent. 70 percent location contours as limited 220----- 61.5 42.5 63.5 4&0 ...... 46.5 The following example explains how by noise. These are found to be circles 230 ----- 64.5 45.0 66.0 51.0 ...... 48.0 the tables should be used: of 78 and 71 mile radii, respectively. The 240 - 67.5 48.0 68.5 53.5 ------do.0 250----.... 70.5 50.5 70.0 55.0 ...... Consider three co-channel TV stations contour limitation of Station A in the 260----- 74.0 53.0 ----- 57.0 ...... In the low VHF band: Stations A, B and direction of Station B can be obtained 270...... 77.5 55.5 --.....59.0 ...... 280 ----- 78.0 57.5 - 6-----01.0 ...... C (see fig. 1). The stations are offset. by finding from Table Ill the distance to 290 --.--.---- 60.0 ...... 63.0 ...... Station A is 180 miles from Station B and the interference-free Grade B contour 300 ------62.0 -...... 65.0...... d.for a spacing of 180 miles for low VHF 310 - 65.0 - 67.0...... 320 . 67.0 69.0...... The figures in the Table were computed stations operating on an offset basis. .. .- 69.0 70.0...... by obtaining the point on a line between This contour is found to fall 50 miles 340 2.------stations at which the desired geld exceeds 350------74.0 from Station A, and this point should be 360 ------77.0 the undesired by the required, ratio. This plotted on a line between Stations A and 370------7- 78.0...... does not give the precise point at which Grade 11 service is limited since receiver noise B. factor is not considered. In dealing with Two additional points should now be TAILE IV-DISTANCE (d:) FROMUNDESIRED STATION located to determine the limitation of the AT WICH INTERFERING SIONAt WILL REDUCE THE stations in the low VHF band, it would be 70% LOCATION NOISE LIMITATION OF DESIRED STA- noecesary to consider nonoffset stations as far Grade B contour of Station A in the STIONTOAN OVERALL GRADE B LIMITATION removed as 060 miles In order to take noise presence of noise and interference from also Into account, Vhen using the simple High Station B. These additional two points Y-HFLow V.UF UHF method employed here for the spacings usu-, may be located from Table IV. From ally encountered the results may place the this Table find the pertinent distance service contours from 1 to 4 miles beyond Mila 3Mes - Miles the actual figure that will be obtained If d. The required points will be this dis- 0ffset ...... 208 188 124 noise were also taken into account. Never- tance from, Station B-the undesired Nonoffset ..-...... - .. 307 274 210 tleless, we believe the suggested method af- station-and will-lie on the 70 percent fords results of suficient accuracy for present location noise-limitedl contour of Sta- IF. R. Doe.- 56-5213; Piled, July 3, 1956; purposco. tion A, 1. e., at points x and y in the 8:45 a. In.]

90 (97 of 135) Wednesday, July 4, Case: 1956 18-55682, 10/31/2018,FEDERAL- REGISTERID: 11068173, DktEntry: 24-2, Page 93 of 1244967 TITLE 49-TRANSPORTATION Since immediate action is necessary, (See. 1,43 Stat. 464, as amended, 48 U. S. C. notice and public procedure on these 221) Chapter l-nterstate Commerce impracticable (60 Stat. JOHN L. FAI.z, Commission amendments are Director. 237; 5 U. S. C. 1001 et seq.) and they 2, [Service Order 897, Arndt. 4] JULY 1956. shall become effective immediately upon [F. It. Dec. 56-5358; Filed, July 2, 1956; PART 97-Rournw publication in the RmDzAL REGISTER. 2:46 p.m.] CHICAGO, ST. PAUL, MINNEAPOLIS AND OMAHA RAILWAY CO. At a session of the Interstate Com- merce -Commission, Division 3, held at its office in Washington, D. C., on the PROPOSED RULE MAKING 28th day of June 1956. - Upon further consideration of Serv- ice Order No. 897 (19 P. R. 3762; 20 F. R. DEPARTMENT OF AGRICULTURE the quota in .excess of 1,800,0.00 short 4, 4688; 20 F. R. 9825), and good cause tons, raw value. appearing therefor: It is ordered, that: Commodity Stabilization, Service 2. The limiting of.marketings of each Section 97.897 Service Order No. 897 processor to permit an appropriate dis- be, and it is hereby amended by substi- [7 CFR Part 814 ] tribution of the 1956 sugar quota for tuting the following paragraph (g) for [Hearing Clerk Docket No. SH-145] the Domestic Beet Sugar. Area in the paragraph (g) thereof: event of any decreases in that part of the (g) Expirationdate. This order shall ALLOTMENT OF 1956 SUGAR QUOTA Fra- quota in excess of 1,800,000 short tons, DomESTic BEET SUGAR AREA raw value. expire at 11:59 p. n, December 31, 1956,' At the hearing, the Department of Ag- unless otherwise modified, changed, sus- NOTICE OF REOPENED HEARING propose (1) that the inthis riculture will pended, or annulled by order of crease of 63,731 short tons, raw value; Commission. Pursuant to the provisions of the Sugar in the 1956 sugar quota for the Domestic. Effective date. This amendment shall 'Act of 1948 as amended (61 Stat. 922, as amended by 65 Stat. 318,7 U. S. C. 1100" Beet Sugar Area, and any, further in- beco'me effective at 11:59 p. m., June 30, creases or reductions of that part of the. 1956. et seq.) hereinafter referred to as the the Domestic quota in excess of 1,800,000 short tons,) Iris further ordered, that copies of this "act", the 1956 quota for raw value, be allotted in the manner Beet Sugar Area as established by Sugar industry and set forth order and direction shall be served upon Regulation 811 (20 F. R. 9848) amount- proposed by the the Nebraska State Railway Commission short tons, raw value, in Exhibit 6 of the-record of the proceed- and upon the Association of American ing to 1,800,000 ing identified as Hearing Clerk Docket- was allotted in Sugar Regulation 814.32, marketings of Railroads, Car Service Division, as agent R. 2589). There- No. SH-145, and (2) that of the railroads subscribing to the car Amendment 1 (21 F. each allottee be limited to 98% of.its after, the act was amended by Public allotment through November 30, 1956- service and per diem agreement under Law 545, 84th Congress, approved May the terms of that agreement; and that 29, 1956, which provided, among other and that after that date, total market- notice of this order shall be given to the ings of each allottee in the calendar year things, for Increases in the quota for the 1956 shall not exceed its allotment for. general public by depositing a copy in the Domestic Beet Sugar Area above the suchyear. . -. office of the Secretary of the Commission previously fixed level of -1,800,000 tons, at Washington, D. C., and by filing It with when total sugar requirements exceed Issued at Washington, D. C., this 28th the Director, Division of the Federalr 8.350.000 short tons, raw"value. In ac- day of June 1956. Register. cordance therewith, Sugar Regulation (Sec. 12,24 Stat. 383, as amended; 49 U. S. C. [SEA-] TrUE D. MORsE,. 811, Amendment 2 (21 P. R. 4653), effec- ActingSecretary of.Agriculture.-- 12. interprets or applies sec. 1. 24 Stat. 379, tive June 27, 1956 increased the 1956 asamended; sec. 15, 24 Stat. 384, as amended; 1956; 49 U. S. C. 1, 15) quota for the area by 63,731 short tons, (F. R. Doc. 56-5295; Filed, July- 3, raw value, to total 1,863,731 short tons, 8:49 a. m.] By the Commission, Division 3. raw value. [sEAL] HAROLD D. McCoY, In view of such increase in the 1956 Secretary. sugar quota for the Domestic Beet Sugar IF. . Doc. 56-5322; Filed. July 3, 1956; Area and to provide a basis for the allot- [7 CFR Part 814 1 8:54a.m.] ment thereof and any further changes in such quota, It Is necessary to reopen [Hearing Clerk Docket No. SE-1441 the record and hearing in the proceed- ALoTm ET Or 1956 SUGAR QUOTA roR 'TITLE 50-WILDLIFE ings pertaining to the allotment of such MAINqLAiD CAM~ SUGAR AREA. Chapter I-Fish and Wildlife Service; quota identified as Hearing Clerk Docket NOTICE OF REOPEED EA rG Department of the Interior No. SH-145, to permit evidence, limited to the subjects and Issues hereinafter Commerdal Fisheries Pursuant to the provisions of the Subliapter F-Alaska stated, to be introduced into such record. Sugar Act of 1948 as amended (61 Stat. PART 104-BRISTOL BAY AREA Accordingly, pursuant to section 205 of 318, 7 U. S. C. 1100 et seq.) hereinafter PART 107-C IGNK AREA the act (62 Stat. 926, as amended by see. referred to as the "act" and in accord- JEHLY CLOSED PERIODS 10, Pub. Law 545, 84th Cong.) and in ance with the applicable rules of prac- Basis and purpose. In compliance accordance with the applicable rules of tice and procedure (7 iFR 801.1 et sieq.). practice and procedure (21 . R. 4251) .a notice of hearing was issued (20 F. R. with -paragraph (c) of § 104.5, an- given that a publl6hear- nouncement is made that registrations notice is hereby 10167) and a hearing was held to receive of units of gear by districts in Bristol ing will be held in Room 2W, Adminis- evidence for the. allotment of the 1956 Bay for the week ending July 7 were tration Building, United States Depart- sugar \quota for the Mainland Cane as follows: ment of Agriculture on July 16, 1956 Sugar Area. Thereafter, the -act. was 1. Nushagak district, 270 units; Nak- beginning at 10:30 a. n., e. d. t. amended by Public Law 545, 84th Con- nek-Kvichak district, 276 units; Egegk The scope of such hearing will be lim- gress, approved May 29, 1956, which pro- district, 99 units; Ugashik district, 45 Ited to the presentation of evidence rele- vided, amlong other things, for increases inits. vant and pertinent to the following sub- in the quota for the Mainland Cane 2. On the basis of improved runs in jects and Issues. Sugar Area above the previously fixed the Chignik area, it has been determined 1. The allotment, n accordance with level of 500,000 tons, when total sugar that additional fishing time can be per- section 205 of the act, of the increase of requirements exceed 8,350,000 short tons, mitted. Accordingly, § 107.3 is amended 63,731 short tons, raw value, in the 1956 raw value. In accordance therewith, in paragraph (b) by deleting "Tuesday" sugar quota for the Domestic Beet Sugar Sugar Regulation 811, Amendment 2,. (21 and substituting in lieu thereof Area and the allotment of any further F. R. 4653) effective June 27, 1956 in-- 'Wednesday." increases or reductions of that part of creased the 1956 quota.for the area by :No. 129---

91 (98 of 135) 4968 Case: 18-55682, 10/31/2018,PROPOSED, ID: RULE 11068173, MAKING DktEntry: 24-2, Page 94 of 124 (0,010 short tons, raw value, to total of a merger, consolidation, transfer of sugar communities. As a part of this interim 500,010 short tons, raw value. processing facilities, or other action of similar program of channel reassignments and effect upon the allottees or persons involved, in accordance With the general objectives In view of such increase in the 1956 and upon relinquishment by one of the ar- sugar quota for the Mainland Cane lottees of all or a portion of its allotment. outlined in the above Report and Order, Sugar Area and to provide a basis for the ihe Commission is proposing the follow- allotment thereof and any further Issued at Washington, D. C.; this 28th ing channel changes: changes In such quota, it Is necessary to day .ofJune 1956. reopen the record and hearing in the [SEAL] TRUE D. MORSE, Channel*No. proceedings pertaining to the allotment Acting Secretary of Agriculture. city Clerk Present Proposed of such quota Identified'as Hearing Filed, July 3, 1956; Docket No. SH-144, to permit evidence, [F. nI. Doc. 56-5296; and issues herein- 8:50 a. m.] limited to the subjects St.Springfield, Louis, M 11o------...... ------2,304 20, S4,5,9,11,*66 2,1,13,420, 4, 39, 5, '66*9. after stated, to be introduced into such -0304 1 11, 30, 3G,41 record. Accordingly, pursuant to section Lincoln, Ill --- ...... 53 49 as amended FEDERAL COMMUNICATIONS 205 of the act (62, Stat. 926, COMMISSION bY section 10, Pub. Law 545, 84th Cong.) (Offset carrier designations for the various channels and in accordance with the applicable rules of practice and procedure (21 F. R. [47 CFR Part 2 1 wll be specified in the final lReport and Order.) 4251) notice is hereby given that a pub- [Docket No. 117031 3. Any interested party who Is of the lic hearing will be held in Room 2W, FIXED SERVICE UTILIZING ifROPSPHEC view that the proposed amendments F SERVIERUTINGT s should not be adopted, or should not be Administration Building, United States, SCATTR TECHNIQUES adopted in the form set forth herein, may Department of Agriculture on July 16, 1056 beginning at 9:30 a. in., e. d. s. t. EXTENSION OF TM TO FILE COMMENTS file with the Commission on or before The scope of such hearing will be In the matter of amendments of Part 2 September 10, 1956, a written statement limited to the presentation of evidence of the Commission's rules to provide spe- setting forth his comments. Comments relevant and pertinent to the following cifically for the fixed service utilizing supporting the proposed amendments subjects and Issue: tropospherictroosheicdate. scatter techniques. . may alsoComments be filed onin orreply before to the original same 1, The allotment, in accordance with 1. The Commission having under con- c ommen i epl y tin 15 da section 205 of the act, of the increase of sideration the request filed in the above comments may be filed within 15 days 60,019 short tons, raw value, in the 1956 entitled proceeding by the Radio-Elec- froin the last date for filing said original sugar quota for the Mainland Cane tr~nics-Television Manufacturers As- comments. No additional comments may Sugar Area and the allotment of any socnation (RETMA) requesting an ex- be filed unless (1) specifically requested further increases or reductions of that tension- of time 'from July 1, 1956, 'to by the Commission or (2) good cause for part of the. quota in excess of 500,000 January 2, 1957, in which to file com- the filing of such additional comments short tons, raw value. to the Commission's Notice of is established. ments RueMaking in this Docket; 4. Parties submitting comments in this 2. The limiting of marketings of each Proposed Rueakingh gproceeding are requested to direct their processor to permit an appropriate dis- 2. It appearing that good and sufficient attention, to the matters discussed in tribution of the 1956 sugar quota for the reasons have been advanced by -the paragraph 31 of the Commission's Re- Mainland Cane Sugar Area in the event RETMA in its request for an extension port and Order issued today in Docket of any decreases in that part of the quota of time in which to file comments, and No. 11532: All data indicating television In excess of 500,000 short tons, raw value. that the public- interest would be served coverage should be filed in accordance At the hearing, the Department of by a grant of -that request; with the procedures 'specified in para- Agriculture will propose (1) that the 3. Itis ordered,That the time for filing graphs 38-40 of the above Report and Increase of 60,019 short tons, raw value, comments in the aboye entitled proceed- Order. In the 1956 sugar quota for the Mainland ing is hereby extended from July 1, 1956, 5. Authority for the' adoption of the Cane Sugar Area, and any further in- to January 2, 1957. - - amendments proposed herein is con- creases or reductions of that part of the Adopted: June 27,1956. tained in sections 1, 4 (i) and (j), 301, quota In excess of 500,000 short tons, raw Relesed:June28,156.303 (a), (b), (c), (d), (e), (f), (g), (h) value, be allotted in the same manner Released: June 28,1956.. and (r) and 307 (b) of the Communica- as finally adopted for the allotment of the record FEDERAL COMMUNICATIONS tions Act of 1934, as amended, and see- the 500,000 tons pursuant to COMMISSION, tion. 4 of the Administrative Procedure of the hearing held in this proceeding [SEAL] MARY JANE MoRRIS, Act. Identified as Hearing Clerk docket No. Secretary. 6. In accordance with the provisions of 144, and (2) that marketings of each allottee be limited to 95 percent of its al- [P. n. Doe. 56-5316; Plied, July 3, 1956; § 1.764 of the rules, an original and 14 8:53 a.m.] copies of all written comments shall be lotment through November 30, 1956 and furnished the Commission, that after that date, total marketings of each allottee in the calendar year 1956 Adopted: June 25, 1956. shall not exceed its allotment for such [47 CFR Part 3] Released: June 26, 1956. year, It also will be appropriate at the hear- [Docket No. 11747; FCC 56-588] FEDERAL COMiMUNICATIONS ing to present evidence of any corporate COMMISSION '1 TELEVISION BROADCAST STATIONS; SPRING- [SEALI MARY JANE MORRS, merger or consolidation or of any trans- FIELD, ILL., ST. Louis, Mo. fer of sugar-processing facilities on the Secretary. TABLE OF ASSIGNMENTS basis of which the Secretary may attrib- [F. R. DC. 56-5214; Piled, July 3, 1956; ute the production, marketing and in- In the matter of amendment of 1 3.606 8:45 a. m.] ventory history of one processor to Table of Assignments, Television Broad- another and establish allotments accord- cast Stations (Springfield, Ill.-St. Louis, ingly or may permit marketings' to be Mo.). made by one allottee, or other person, 1. Notice is hereby given of rule mak- [47 CFR Part 3 Y within the allotment of another. A matter. ing in the above-entitled. No. 11748; FCC 56-589] Government witness will propose that a 1 2. The Commission today adopted a [Docket paragraph be included in the allotment Report and Order in its general television TELEVISION BROADCAST STATIONS; HART- order as follows: allocation proceeding in Docket No. roRD, CONN., PROVIDENCE, R. LI The Director of the Sugar Division, Com- 11532, outlining a long-range program TABLE OF ASSIGNMENTS modity Stabilization Service, of the Depart- designed to improve the television allo- mont, may, consistent with the provisions cation structure and at the same time In the matter of amendment of 9 3.606 of the Sugar Act, permit and objectives specifying the'bases .on which It would Table of assignments, Television Broad- marketings to be made by one allottee, or consider channel changes in the interim other person, within the allotment or por- 1 tion thereof established for another allottee with the view to improving the immedi- Commissioners Doerfer end Mack dissent- upon receipt of evidence satisfactory to him ate televisio situation in individual ing.

92 (99 of 135) Wednesday, July 4, Case: 1956 18-55682, 10/31/2018,FED ERAL ID:REGISTER 11068173, DktEntry: 24-2, Page 95 of 1244969 cast Stations (Hartford, Connecticut- 7. In accordance with the provisions of may' file with--the Commission on-.or- Providence. Rhode Island). § 1.764 of the rules, an original and 14 before September 10, 1956, a written 1. Notice Is hereby given of 'rule mak- copies of all written comments shall be statement setting forth his comments. ing in the above-entitled matter. furnished the Commission. - Comments supporting the proposed - 2. The CommissIon today adopted a amendments may also be filed on or.be- Report and Order in its general televi- Adopted: June 25, 1956. fore the same date. Comments in reply sion allocation proceeding in Docket No. Released: June 26, 1956.' to original comments may be filed within 11532, outlining a long-range program FEDERAL COMMUNICATIONS 15 days from the last date for filing said designed to improve the television allo- CohMMSSION , original comments. No additional com- cation structure and at the same time Ism] MARY JANE MRIS, -ments may.be filed unless (1) specifically specifying the bases on which It would Secretary. requested by the Commission or (2)good consider channel changes in the interim cause for the filing of- such.-additiona1 Doc. 3, the view to improving the imme- IF. . 56-5215; Filed, July 1956; comments is e6tablished. with 8:45 a. m.] S. Parties submitting - comments- in diate television situation in individual are requested -tor direct communities. As a part of this interim this proceeding reassignments and their attention to the matters discussed program of channel Re- in accordance with the general objec- in paragraph 31 of the Commission's tives outlined in the above Report and [ 47 CFR Part 3] port and Order issued todayin-Docket Commission is proposing the [Docket No. 11749; FCC 56-590] No. 11532. All data indicating television Order, the coverage should be filed in accordance following channel changes: TEL vION BROADCAST STATIONS; PEORIA, with- the procedures specified in: para- ILL., DAVENPORT, IOwA-Rocx ISLAND- graphs 38-40 of the above Report and Channel No. MOLINE, ILL. Order. I city TABLE OF ASSIGNMENTS - -, 6. Authority for the adoption of the trc.'cnt Propoxd amendments proposed herein is con- In the matter of amendment of § 3.606 tained in sections 1, 4 i and (j), 301, G 1 , i| 8,,-21, Table of Assignments, Television Broad- 303 (a), (b), (c), (d), (e), (f), (g), (h) Meiden,ff] o Conn.m...... nn. .... Gi...... Easlhumpton.Har Mos...... 61 cast Stations (Peoria, Illinois, Daven- and (r) .and 307 (b) of the Communica- Prop, 12,0. 3,i12, port, Iowa-Rock Island-Moline, Illinois. -tions Act of 1934, as amended, and see- 1. Notice Is hereby given of rule mak- tion 4 of the Adminitrative Procedure Ing in the above-entitled matter. Act. (Offset c=Tner deslgnatlons for the varfaus channls 2. The Commission today, adopted a 7. In accordance with the provisions will be spcdled in tbe final Report and Order.) Report and Order in Its general televi- -of § 1.764 of the. rules, an original and 3. In accordance with the policies sion allocation proceeding in Docket No. -14 copies of. all written comments shall adopted in the Commission's Report and .11532, outlining a long-range program -be furnished the Commission.- 'Order issued today in Docket No. 11532. designed to improve the television alo- -Channel 3 is being proposed for Provl- cation structure and at the, same time Adopted: June 25,1956. dence ej'en though the minimum spacing specifying the bases on which It would Released: June26,1956. from the city would not be met. How- consider channel changes in the interim ever, as noted in the above Report and with the view to improving the imme- FEDERAL COMMUICATI9NS Order, in the utilization of Channel 3, diate television situation in individual COMMUs5ION ,I the transmitter will have to be located 'communities. As a part of this interim ESEAL] .....MARY UNEIMbRaS,,Secfetari. so as to meet the minimum transmitter program of channel reassignments and - e spacing requirement. in accordance with the general objectives IF. R. Doe. 56-5216; Piled. July 3,_1956; 4. Any interested party who is of the outlined In the above Report and Order, 8:46 a.-m.] view that the proposed amendments the Commission is proposing the follow- - should not be adopted, or should not be ing channel changes: adopted in the form set forth herein may file with the Commission on or be- CILTnnD No. [47 CFR Part 3] fore September 10, 1956, a written state- city[7 Proposed ment setting forth his comments. Corn- Present - ments supporting the proposed amend- TnLWo0[oc BROADCAST STATIONS; NO-50R ments may also be filed on or before the b. iL...... 1 FOLK, PORTSMOUTH1, NEWPORT NEWS, same date. Comments in reply to orig- or IIL....1., 7,43 19,25,-,,L3 VA., BERN, N. C. inal comments may be filed within 15 c Lsd, ..... AD NEW days from the last date for filing said TABLE OF ASSIGNMENTS -original comments. No additional corn- seoDavenport, low*. ments may be filed unless (1)specifically (Offset csnlor designatlons for the various channels - In the matter of amendment of § 3.606 -requestedby the Commission or (2) good WW ba specflied LItho flnal Report and Order.) Table of Assignments, Television Broad- cause for the filing of such additional 3. In accordance with the policies cast Stations (Noffolk;-Portsmouth-New- -comments is established, adopted in the Commission's Report and port News, Virginia -nd New Berne, North 5.-Parties submitting comments In this Order issued today in Docket No. 11532, Carolina). proceeding are requested to direct. their Channel 8 Is being proposed for Rock 1. Notice is hereby given of rule mak-. attention to the matters discussed in Island even though the minimum spacing in the above-entitled matter.- - - paragraph 31 of the Commission's Report ing from the city would not be met. 2. The Comnmission to'day adopted 'a -and Order issued today in Docket No. However, as noted in the above Report -Report and Order in its general tele- 11532. All data indicating television and Order, in the utilization of the chan- vision allocation proceeding in Docket Coverage should be filed in accordance -nel the transmitter will have to be lo- No. 11532, outlining a long-range pro- with the procedures specifled in para- cated so as to meet the minimum spacing gram designed to improve the television graphs 38-40 of the above Report and requirements. Allocation structure and at the same time Order. 4. Any interested party who is of the specifying the bases on which it would, 6. Authority for the adoption of the view that the proposed amendments, consider channel changes in the interim amendments proposed herein s con- should not be adopted, or should -not be with the view to improving the immedi- tained in sections 1,-4 (t)and (J), 301. adopted in the form set forth herein, ate television situation in individual 303 (a), Cb), Cc), (d), (e), (f), (g), (h) communities. As a part of this interim and (r) and 307 b) of the Comiunlca-- lCommlssioners McConnaughey, Chair- coomunities. As a partaofithisninteri man,and Mack dissenting and Commissioner program of channel reassignments and tions Act of 1934, as amended, and sec- Doerfer dissenting and Issuing a statement. 1 tion 4 of the Administrative Procedure which Is filed as part of the originaldocu- Commissioners Doerfer and Mack dis- Act. meat. senting.

93 (100 of 135) 4970 Case: 18-55682, 10/31/2018,PROPOSED ID: 11068173,RULE MAKING DktEntry: 24-2, Page 96 of 124 in accordance with the general objectives [ 47 CFR Part 3 7 graphs 38-40 of the above Report and outlined in, the above Report and Order, Order. the Commission is proposing the follow- [Docket No. 11751; FCC 6-592] - 6. Authority for the adoption of the Ing channel changes: TELEVISION BROADCAST STATIONS; ALBANY, amendments proposed herein is contained in sections 1, 4 (1) and (j), 301, Channel No. SCHENECTADY, TROY, N. Y., AND VAIL MILLS, N. Y., 303 (a), (b), (c), (d), (e), (f), (g), (h) city and (r) and 307 (b) of the Communica- Present rr~posed TABLE OF ASSIGNMENTS tions Act of 1934, as amended, and section 4 of the Administrative Procedure In the matter of amendment of § 3.606 Now Pern, N...... | 13 12 Act. Norfolk-Portsmouth-Newport Table of Assignments, Television Broad- 7. In accordance with the provisions Now, Va ...... 3,10, 15. 3,10,13,15, cast Stations (Albany-Schenectady- 21,33 '21,33 Troy, of § 1.764 of the rules, an original ind New York and Vail Mills,. New 14 copies of all written comments shall York). be furnished the Commission. (Offset carrier designations for the various ebannels 1. Notice is hereby given or rule mak- will be specified i the final Report and Order.) ing in the above-entitled matter. Adopted: June 25, 1956. 3. In accordance with the policies 2. The Commission today adopted a Released: June 26, 1956. adopted In the Commission's Report and Report and Order in its general televi- Order issued today in Docket No. 11532, sion allocation proceeding in Docket No. FEDERAL COMMUNICATIONS Channel 12 is being proposed for New 11532, outlining a long-range progran" COMISSION,' [SEAL] _ MARY JANE MORRIS, Bern and Channel 13 for Norfolk-Ports- designed to improve the television allo- Secretary. mouth-Newport News even though the cation structure and at the same time minimum spacing from the city would Specifying the bases on which it would [F. n. Doc. 56-5218; Flied, July 3, 1956; not be met. However, as noted in the consider channel changes in the interim 8:46 a. i.] above Report and Order, in the utiliza- with the view to improving the immedi- tion of the channels the transmitters will ate television situation in individual have to be located so as to meet the communities. As a part of this interim minimum spacing requirements. ,program of channel reassignments and [47 CFR Part 3] 4, Any interested party who is of the in accordance with the general objec- view that the proposed amendments tives outlined in the above Report and [Docket No. 11752; FCC 56-593] should not be adopted, or should not be Order, the Commission is proposing the TELEVISION BROADCAST STATIONS; NEW adopted In the form set forth herein, following channel.changes: ORLEANS, .A.-MOBILE, ALA. may file with the Commission on or be- TABLE OF ASSIGNMENTS fore September 10, 1956, a written state- ChannelNo. ment setting forth his comments. Com- City In the matter of amendment of § 3.606 ments supporting the proposed amend- Present -Proposed Table of assignments, Television Broad- ments may also be filed on or before the cast Stations (New Orleans, Louisiana- same date, Comments in reply to origi- Albany - Schenectady - Troy, Mobile, Alabama). nal comments may be filed within 15 days N. Y ------6, '17, 23, 6, -17, 23, 1. Notice is hereby given of rule mak- 35,41 5,41,47 from the last date for filing said original vein Mills, N. Y------0------ing in the above-entitled matter. comments. No additional comments 2. The Commission today adopted a Report and Order in its general televi- may be filed unless (1) specifically re- (Offset carrier designations for the various 6hannels quested by the Commission or (2) good will be specified in the final Report and Order.) sion allocation proceeding in Docket No. cause for the fling of such additional 11532, outlining a long-range program comments is established 3. In accordance with -the policies designed to improve the television allo- 5. Parties submitting comments n this -adopted in the Commission's Report and cation structure and at the same time proceeding are requested to direct their Order issued today in Docket No. 11532, specifying the bases on which it would attention to the matters discussed in Channel 47is being proposed for Albany- consider channel changes in the interim paragraph 31 of the Commission's Re- Schenectady-Troy even though the mini- with the view to improving the immedi- port and Order issued today in Docket mum city-to-city spacing would not be ate television situation in individual No. 11532. All data indicating television met. However, as noted in the above communities. As a part of this interim coverage should be filed in accordance Report and Order, in the utilization of program of channel reassignments and with the procedures specified In para- Channel 47 the transmitter will have to in accordance with the general objec- graphs 38-40 of the above Report and be located so as to meet the minimum tives outlined in the above Report and Order. spacing. Order, the Commission is proposing the 6. Authority for the adoption of the 4. Any interested" party who is of the following channel changes: amendments proposed herein is con- view that the proposed amendments should not be adopted, or should not be Channel tained in sections 1, 4 (1) and (j), 301, adopted in the form set forth herein, No. 303 (a), (b), (c), (d), city (e), (f), (g), (h), may file with the Commission on or -be- and (r) and 307 (b) of the Communica- fore September Present Proposed tions Act of 1934, as amended, 10, 1956, a written state- and sec- ment setting forth his comments. Com- tion 4 of the Administrative Procedure Mobile, AlE. ------6,10, 42 48 4,5,10, "48 ments supporting the proposed amend- New Orleans, La ...... [ 4,6,-8,2% 8 2,2, Act. ments may also be filed on or before the !2,32,61 35, 42 Of 7. In accordance with the provisions of same date. Comments in reply to' orig- § 1,764 of the rules, an original and 14 inal comments may be filed within 15 (Offset carrier designations' for the various channels. copies of all written comments shall be days from the last date for filing said will be specified in the final Report and Order.) furnished the Commission. original comments. No additional com- 3. In accordance with the policies Adopted: June 25, 1956. ments may be filed unless (1) specifically adopted in the Commission's Report and requested by the Commission or (2) good Released: June 26,1956. - Order issued today in Docket No. 11532, cause for the filing of such additional Channel 4 is being proposed for Mobile FEDERAL COMMUNICATIONS cominents is established. even though the minimum spacing from ColmIssIoN,' 5. Parties submitting comments in this the city would not be met. However, as ISEAL] MARY JANE MORRIS, proceeding are requested-to direct their noted in the above Report and Order, in I Secretary. attention to the matters 'discussed in 'the utilization of Channel 4 the trans- F paragraph 31 of'the Commission's Re- mitter will have to be located so as to I . n., Doe. '50-5217; Filed, July 3, 1956; meet the minimum spacing require- 8:40 a. m.] port and Order issued today, in Docket No. 11532. All data indicating television ments. 'Commissioners Hyde, Webster, anh Mack coverage should be fled in accordance lCommissioners MConnaughey, Chair- dipsenting. with the procedures specified in para- man; Doerfer and Mack dissenting.

94 (101 of 135) Wednesday, July 4, Case: 1956 18-55682, 10/31/2018,FEDIERAL ID:REGISTER 11068173, DktEntry: 24-2, Page 97 of 1244971

4. Any interested party who Is of,the the Commisslor is proposng the follow-, specifying-the bases on. which itwould view that the proposed amendments ing channel changes: -. consider channel changes in the interim should not be adopted, or should not be -with the view to -improving the imme- adopted in the form set forth herein,may Channel No. diate television situation in individual file with the Commission on or before City :communities. As a part of this interim September 10, 1956, a written statement rewr ropose -program of channel reassignments and -setting forth his comments. Comments -_ -L .in accordance with the general objectives 'supporting the proposed amendments Chrteston,. S. a,4,. . .I317 'i3,17 -outlined in the above Report and Order, may also be filed on or before the same -the Commissiono-is pr6posing the follow- date. Comments in reply to original (Offset crler designations for tho vmrous channels ing cnannel changes: comments may be filed within 15 days will be speciled In the final Report and Order.)' ' . from the last date for filing said original Channel No. comments. No additional comments 3. Any interested party who is of the City may be filed unless (1) specifically review that the proposed amendment Present Proposedl quested by the Commission or (2) good should not be adopted, or should not be adopted in the form set forth herein, cause for the filing of such additional I~uisn Ws-----1 ----- 3,-'21, 2~3 .127,33 comments is established. may file with the Commission on or be- 5. Parties submitting comments in this fore September 10, 1956, a written state- his comments. Com- -(Offset carrier deslgiiations for the various -channels proceeding are requested to direct their ment setting forth will be specified in the final Report and Order.) - - attention to the matters discussed in ments supporting the proposed amen4- paragraph 31 of the Commission's Re- -meat may also be filed on or before the 3. Any interested party who is of the port and Order issued today In Docket same date. Comments in reply to origi- view that the -propbsed zanendmext not< be No. 11532. All data indicating televi- nal comments may be filed within 15 should not be adopted, or should sion coverage should.be filed in accord- days from the last date for filing said adopted in the form set forth herein, may on or before ance with the procedures specified In -original comments. No additional com- file with the Commission paragraphs'38-40 of the above Report ments may be filed unless (1) specifically September 10, 1956, a written statement and Order. requestpd by the Commission or (2) good, setting forth his comments. Comments amendment 6. Authority for the adoption of the cause for the filing of such additional supporting the proposed is established. may also be filed on or before the same - amendments proposed herein is con- comments () (j), 301, 4. Parties submitting comments In this date. Comments in reply -to original tained in sections 1, 4, and may be filed within 15 days 303 (a), (b), (c), (d), (e), (f), (g), h) proceeding are. requested to direct their comments the last date for filing said original and (r) and 307 (b) of the Communica- attention to the matters discussed in from comments. No additional comments tions Act of 1934, as amended, and sec- paragraph 31 of the Commission's Report 'In be filed unless (1) specifically re-- tion 4 of the Administrative Procedure and Order issued today Docket No. may 11532. All data indicating television quested by the Commission or (2) good _Act. .cause for the filing -of such additional the provisions coverage should be filed in accordance 7. In accordance with comments is established. of § 1764 of the rules, an original and with the procedures specified in para- 4. Parties submitting comments in this written comments shall graphs 38-40 of the above Report and 14 copies of all proceeding are requested to direct their be furnished the Commission. Order. 5. Authority for the adoption of the -attention to the matters discussed in Adopted: June 25,1956. amendment proposed herein is contained paragraph 31 of the Commission's Re- Order issued today in Docket Released: June 26,1956. In sections 1, 4 (1) and (j), 301, 303 port and (a), (b), (c), (d), (e), (f), (g), (h), No. .11532. -All data indicating television FEDERAL COMMUNICATIONS and (r) and 307 (b) of the Communica- .coverage should be ied in accordance COMMISSIONL tions Act of 1934. as amended, and sec- with the procedures specified in para- [SEAL] MARY JANE MORRIS, tion 4 of the Admfnitrative Procedure -graphs 38-40 of the above Report and Secretary. Act. Order. IF. R. Dc. 56-5219; Filed, July 3. 1950; 6. In accordance with the provisions 5. Authority. for the adoption of the 8:46 a. m.] of § 1.764 of the rules, an original and amendment proposed herein is contained 14 copies of all written comments shall be in sections 1, 4 (i) and (j), 301, 303 (a), furnished the Commission. (b). (c), (d), (e), (f), (g), (h) and (r) and 307 (b) of the Communications Act [ 47 CFR Part 3 1 Adopted: June 25,1956. of 1934, as amended, and section 4 of the [Docket No. 11753; FCC 56-594] Released: June 26,1956. Administrative Procedure Act. 6. In accordance with the provisions of TELEVISION BROADCAST STATIONS; FEDERAL COMMUNICATIONS § 1.764 of the rules, an original and 14 CsUMLMSTON, S. C. COMMISSION, copies of ail written comments shall be [SEAL] MARY JANE MORRIS, furnished the Commission. TABLE OF ASSIGNIIENTS Secretary. Adopted: June 25, 1956. In the matter of amendment of § 3.606 iF. . Doec. 56-5220; Filed. July 3. 1956; Table of Assignments, Television Broad- 8:46 a. m.] Released: June 26, 1956. - cast Stations (Charleston, South Caro- lina). FEDERAL COMMtNICATIONS- given of rule mak- CoMussON", 1. Notice is hereby MORRISj, matter. [SEAL] MA- JANE ing in the above-entitled [ 47 CFR Part 3 ] Secretary. 2. The Commission today adopted a Report and Order In Its general television [Docket No. 11754; FCC 56-5951 IF. R. Dc. 56-5221; Filed, July 3, 1956; -8:47-a. - allocation proceeding in Docket No. TELEVISION BROADCAST STATIONS, in.] 11532, outlining a long-range program MADIsoN, Ws. designed to improve the television allocation structure and at the same time spec- TABLE OF ASSIGNMENTS .[47 CFR Part 3 . ifying the bases on which it would con- In the matter of amendment of § 3.606 .[Docket No. 11755; FCC 56-596] sider channel changes in the interim Table of Assignments, Television Broad- with the view to Improving the immedi- cast Stations (Madison, Wisconsin). TELEVISION BROADCAST STATIONS; DuLUTH, ate television situation in individual 1. Notice is hereby given of rule mak- MINN., SUPERIOR, Wis. communities. As a part of this interim ing in the above-entitled matter. TABLE OF- ASSIGNMENTS program of channel reassignments and 2. The Commission today adopted a in accordance with the general objectives Report and Order in Its general televi- In the matter of amendment of § 3.606 outlined ln the above Report and Order, sion allocation proceeding in Docket No. Table of Assignments, Television Broad- 11532, outlining a long-range program I Commsslonmes _McConnaughey, "Chair- I Conmissioners Doerfer and Mack dis- designed to Improve the television allo- senting. cation structure and at the same time man; Doerfer and Mack dissenting.

95 (102 of 135) 4972 Case: 18-55682, 10/31/2018,PROPOSED ID: RULE11068173, MAKING DktEntry: 24-2, Page 98 of 124 cast Stations (Duluth, Minn.-Superior, r 47CFRPart31- (b); (c)-, Cd), (f), (g), (h), and (r)and Wis.). [Docket No. 11756; FCC 307 ,(b) of the Communication Act of 1. Notice Is hereby given of rule mak- 56 -597] 1934, as amended, and section 4 of the Ing in the above-entitled matter. TELEVISION BROADCAST STATIONS;' MIAMI, Administrative Procedure Act. 2. The Commission today adopted a FLA. 7. In accordance with, the provisions Report and Order in its general televi- TABLE OF ASSIGNMENTS of- § 1.764 of the rules, -an original and sion allocation proceeding in Docket, No. 14 copies of all written comments shall, 11532, outlining a long-range program In the matter of amendment of § 3.606 be furnished the Commission. designed to improve the television allo- Table of Assignments, Television Broad- cation structure and at the same time cast Stations (Miami, Florida). Adopted: June 25,1956. specifying the bases on which it would 1. Notice is hereby given of rule mak- Released:, June 26,1956. consider channel changes in the interim ing in the above-entitled matter. with the view to improving the imme- 2. The Commission today adopted a FEDERAL COUINICATIONS diate television situation in individual Report and Order in its general televi- COsnMUSSION,2 communities. As a part of this interim- sion allocation proceeding in Docket No. [SEAL] MARY' JANE MORRIS, program of channel reassignments and 11532, outlining a long-range program Secretary. in accordance with the general objectives designed to improve the television allo- [F. R. Doe. 56-5223, Flied, July 3, 1956; outlined in- the above Report and Order, cation structure and at the same time 8:47 a. m.] the Commission Is proposing the follow- specifying the bases on which it would ing channel changes: consider channel changes in the interim with the view to improving the immediate television situation in individual 1 47 CFR Part 3 ] Channel No. communities. As a part of this interim [Dgcket No. 11757; FCC 56-598] City program of channel reassignments und P'resent Proposed in -accordance with the general objec- TELEVISION BROADCAST STATIONS; tives outlined in the above Report and EVANSVILLE, IND. Duluthi, Ulnn,.Sluporior, wvis. , 8 :A 3h .8 Order, the Commission is'proposing the TABLE OF ASSIGNMENTS following channel changes: In the matter of amendment of § 3.606 (Offsot carrier designations for the various channels Table of wII be opeciflcd in the final Report and Order.) Channel No. Assignments, Television Broad- 'city cast Station A (Evansville, Indiana). 3, Any interested party who Is of the Present 1. Notice is hereby given of rule mak- view that the proposed amendment Proposed ing in the above-entitled matter. 2. The Commission should not be adopted, or Should not be Miami, Fia ..------'.2,4,7, - 2.4,6,7, today adopted a adopted in the form set forth herein, 10,i, 33 10,23,33 Report and Order in its general television may file with the Commission on or ,be- allocation proceeding in Docket No. fore September 10, 1956, a written state- (Offset carrier designations for -the various channels 11532, outlining a long-range program ment setting forth his comments. wi be specified In the final Report and Order.) designed to improve the. television allo- Comments supporting the proposed cation structure and at the same time amendment may also be filed on or be- 3. In accordance with the policies specifying the bases on which it would fore the same date. Comments in reply adopted in the Commission's Report and consider channel changes in the interim to original comments may be filed within Order issued today in Docket No. 11532, with the view to improving the immedi- 15 days from the last date for filing said Channel 6 is being proposed for Miami ate television situation in individual original comments. No additional com- even though the minimum spacing' from -communities. As a part of this interim ments may be filed unless (1) specifically the city would not be met. However, as program of channel reassignments and requested by the Commission or (2) good noted in the above Report and Order, in in accordance with the general objectives cause for the filing of such additional 'the utilization of Channel 6, the trans- outlined in the above Report and Order, comments is established. mitter will have to be located so as to the Commission is proposing the follow- 4, Parties submitting comments in this meet the minimum spacing requirements. ing channel changes: proceeding are requested 4. Any interested party who is of the to direct their view that the proposed amendment attention 'to the matters discussed In Channel No. Paragraph 31 of the Commission's Report should not be adopted, -or should not be adopted in the form set forth herein, may - city and Order issued today in Docket No. Present 11532, All data indicating television cov- file with the Commission on or before Proposed erage should be filed in accordance with September 10, 1956, a written statement the procedures specified in paragraphs setting forth his comments. Comments Evansville, Ind------.-- 7,50, '50,62 -7,&0, 50, 02 38-40 of the above Report and Order. supporting the proposed amendment may also be filed on of before the same date. (Offset carrier designations for the various channels 6, Authority for the adoption of the will be specified In the final.Report and-Order.) amendment proposed herein is contained Comments in reply to original comments In sections 1, 4 (1) and Wi), 301, 303 (a), may be filed within 15 days from the last 3. Any interested party who is of the (b), (a), (d), (e), (f), (g), (h) and (r) date for filing said original comments. view that the proposed amendment and 307 (b) of the Communications Act No additionafcomments may be filed un- should not be adopted, or should not be of 1934, as amended, and section 4 of less (1) specifically requested by the adopted in the form set forth herein, may the Administrative Procedure Act. Commission or (2) good cause for the file with the Comniission on' or before 6, In accordance with the provisions of filing of such additional- comments is September 10, 1956, a written statement § 1.764 of the rules, an original and 14 established. setting forth his comments. Comments copies of all written comments shall be 5. Parties submitting comments in this supporting the proposed amendment may furnished the Commission. proceeding are requested to direct their also be filed on or before the same date. attention to the matters discussd in Comments in reply to original comments Adopted: June 25, 1956. paragraph 31 of the Commission's Re- may be filed within 15 days from the last Released: June 26, 1956. port and Order issued today in Docket date for filing said original comments. No. 11532. All data indicating television No additional comments may be filed un- FEDERAL COLMIUNICATIONS coverage should be filed in accordance less (1) specifically requested by the COMMISSION, with the procedures specified in para- Commission or (2) good cause for the ESEAL] MARY JANE MORRIS, graphs 38-40 of the above. Report and filing of such additional comments is Secretary, Order. established. V 6. Authority fdr the adoption of the [ . n, Doe. 56-5222; riled, July 3, 1956; amendment proposed herein is contained 1 Commissloners Webster and Mack dis- 8:47 a. m.l in sections 1,.4 (i)and (), 301; 303 (a), senting.

96 (103 of 135) Wednesday, July 4, Case: 1956 18-55682, 10/31/2018,FEDERAL ID:REGISTER 11068173, - DktEntry: 24-2, Page 99 of 1244973 4. Parties submitting comments in this may file with the Commission on or be- proceeding are requested to direct their fore September 10, 1956, a written state- City Channel No.. attention to the matters discussed in par- ment setting forth his comments. city agraph 31 of the Commission's Report Comments supporting the proposed Prsn and Order issued today in Docket No. amendments may also be filed on or be- 11532. All data indicating television fore the same date. Comments in reply Fresno, _-_.... 12, '18,24, I'A8, 24. 30. 47,53 I " 47,53 coverage should be filed in accordance to original comments may be fied within Madera, Calif ...... - 30 59 with the procedures specified in para- 15 days from the last date for filing said Santa Barbarb. Calf . 3,2D.26 ~ 3,12,20,26 graphs 38-40 of the above Report and original comments. No additional com- Order. ments may be filed unless (1) specifically S(Offset carrier-designatiou5 for the various channels 5. Authority for the adoption of the requested by the Commission or (2) good Willbespecified Inthe finalReport and Order.) -\ amendment proposed herein is contained cause for the filing of such additional " 3. Any interested party who is of the in sections 1, 4 () and (j), 301, 303 (a), comments is established. 'view that' the proposed amendments, (b), (c), (d), (e), (f), (g), (h) and (r) 4. Parties submitting comments-in this should not be adopted, or should not be and 307 (b) of-the Communications Act proceeding are requested to direct their adopted in the form set forth herein, may of 1934, as amended, and section 4 of the attention to the matters, discussed in file with the Commission on of before Administrative Procedure Act. paragraph 31 of the Commission's Report September 10, 1956, a writtenstatement - 6.-En accordance- with the pr'ovlsions. and Order issued today in DocketNo. settinbg'forth" lis c6mments. Comnients- of § 1.764 of the rules, an original and 14 11532. All data indicating television cov- supporting the proposed amendments copies of all written comments shall be erage should be fied in accordance with may also be filed on or before the same furnished the Commission. the procedures specified in paragraphs date. Comments in reply to original 38-40 of the above Report and Order. ,' Adopted: June 25,1956. *comments may be'filed within 15 days 5. Authority for the adoption of the -from the last date for filing said original Released: June 26,1956. amendments proposed herein is con- comments. No -additional comments tained In sections 1, 4 (1) and (W), 301, may be filed-unless (1) specifically re- FEDERAL COMMUNICATIONS 303 (a), (b), (c), (d), (e), (f), (g), (h) COMMISSION,' quested by the Commission or (2) good and r) and 307 (b) of the Communica- cause for the filing of such additional EsEaLI MARY JANE MoaS, tions Act of 1934, as amefided, and sec- Secretary. comments is established. tion 4 of the Administrative Procedure 4. Parties submitting comments inthis [F . Doc. 56-5224; Fied, July 3, 1056; Act. proceeding are requested to direct their 8:47a. nL 6. In accordance with the provisions attention to the matters discussed in of k 1.764 of the rules, an original and paragraph-31 of the Commission's Re- 14 copies of all written comments shall port and Order issued today in Docket be furnished the Commission. No. 11532. All data indicatiig television [47 FR Part 3 1 Adopted: June 25, 1956. coverage should be filed in accordance [Docket No. 11758; FCC 56-5991 with the procedures specified in para- Released: June 26, 1956. graphs 38-40 of the above Report and TELvisror BROADCAST STATIONS; - FEDERAL COMnMUMCATIONS Order. -ELMIRA, N. Y. COMMISSIONS 5. Authorit3 for the adoption of the TABLE OF ASSIGNMENTS [SEAL] MARY JANE MoRIS, amendments proposed herein is con- Secretary. tained in sections 1, 4 (i) and (j), -301, In the matter of amendment of § 3.606 303 (a), (b), (c), (d), (e), f), (g, (h) Table of Assignments, Television Broad- IF. R. Doc. 56-5225; Piled, July 3, 1956; and (r) and 307 (b) of the Communfiea- cast Stations (Elmira, New York). 8:47 a. in.] tions Act of 1934, as amended, and sec- 1. Notice Ii hereby giien of inule mak- tion 4 of the Administrative. Procedure ing in the above-entitled matter. Act. 2. The Commission today adopted a 6. In accordance with the provisions Report and Order in Its general televi- [47 CFR Part 3] of § 1.64 of the rules, an original and 14 ,sion allocation proceeding in Docket No. copies of all written comments shall- be .11532, outlining a long-range program [Docket No. 11759;' FCC 56-6001 furnished the Commission. designed to improve the television allocation structure and at the same time TELEVISION BROADCA T STATIONS; FRESNO- Adopted: June 25, 1956. SANTA BARBA A, CALIF. specifying the bases on which It would Released: June 26, 1956. consider channel changes in the Interim TABLE OF ASSIGNMENTS with the view to improving the immedi- FEDERAL COMnMNcbATIONS ate television situation in individual In the matter of amendment of A 3.606 Cosmmssom'- communities. As a part of this interim Table of Assignments, Television Broad- [SEAL] MARY JANE MoaRS, program of channel reassignments and cast Stations (Fresno-Santa"Barbara, S ecretary. in accordance with the general obJec- California). 1. Notice is hereby given of rule mak- IF. F. Doc, 56-5226; Filed, July 3, 1956; tives outlined-in the above Report and 8:47 a. in.] Order, the Commission is proposing the Ing In the above-entitled matter. following channel changes: 2. The Commission today adopted a ______adJVl -oa &prcedn i np D . ,o allocation proceeding in Docket No. INTERSTATE COMMERCE Channel NO. 11532, outlining a long-range program COMMISSION - city designed to improve the television allo- Present rwprose cation structure and at the same time [49 CFR Part 10 1 specifying the bases on which it would AubnmY--... 37 consider channel changes in the interim UNIFORM SYsrEr or AccOuNTs FOR EhlmfraN.Y..... 9,15424 14,%33, with the view to improving the imme- RAILROAD COMPANIES diate television situation in individual RULEMAKING (Offsetcarrirdesigtlnsforthbavaroschannclswgil communities. As a part of this interim NOTICE OF PROPOSED be spedillod In the final nport aad Ordcr), .program of channel reassignments and JUNE 6, 1956. 3. Any interested party who is of the in accordance with the general objectives Having under consideration rear- view that the proposed amendments outlined in the above Report and Order, rangement of the form of the -general should not be adopted, or should not be 'the Commission is proposing the follow- balance sheet statement prescribed for adopted in the form set forth herein, ing channel changes: railroad comlanies, and changes in account numbers, titles, and, texts, neces- I CommlsIoners Doerfer and Mfack dts- ,Commlssloners McConnaugbey, Chair- sary to implement the rearrangement, senting. man; Doerfer and Mack dissenting. the Commission has approved the modifi-

97 (104 of 135) 4974 Case: 18-55682, 10/31/2018,PROPOSED ID: 11068173,RULE MAKING DktEntry: 24-2, Page 100 of 124 cations which are set forth below. These 742. Unamortized- discount on long-term '53. Audited accounts and wages payable. changes In the form of the balance sheet debt. 754. Miscellaneous accounts payable. will, when formally ordered, have the Tot Other deferred chsrges. 755. Interest matured unpaid. shoingthecurentassts otal other assets and deferred charges. 756. Dividends matured unpaid. effect of (1) showing the current assets Total assets. 757. Unmatured Interest accrued. and the current liabilities as the first ' 758. Unmatured dividends declared. Items in the list of assets and liabilities, Lr A -75. Accrued accounts payable. respectively; and (2) showing the capital CUR ENTLWAXL.es '760. Taxes accrued. stock, capital surplus, and retained in- 751. Loans and notes payable. -.761. Other current liabilities. come, In the same group under "Share. .752. Traffic and car-service balances-Cr. .otal.current liabilities. holders Equity" at the end of the balance - sheet, LONG-TERM DEB' Any interested person may on or be- Total Held by or fore August 1, 1956, Ale with the Com- Issued for Company mission's Secretary written views or 765. P-unded debt unmatured ...... arguments to be considered in this con- 766. Equipment obligations ------...... nection, and may request oral argument 767. Receivers' and Trustees' securities ------...... thereon. Unless otherwise decided after 768. Debt in default ------.....------..... consideration of representations so re- .769. Amounts payable to affiliated companes;.______." ...... ceived, and giving effect to any changes Total long-term debt (due within 1 year -----) ...... found necessary because of them, it Is contemplated that this revision of the R VS balance sheet accounts and the form of 771. Pension and welfare reserves. balancp sheet statement will become ef- 772. Insurance reserves. fective January 1, 1957. .773. Equalization reserves. [SEAL] HAROLD D. McCoY, Total reserves.' Secretary. OTUER I'ABMTTIES AND DEFERRED CREDITS 781. Interest In default. MODIFICATIONS 782. Other liabilities. 1. In § 10.790 Form of general balance 783. Unamortized premium on long-term debt. '784. 'Other deferred credits. sheet statement, cancel the form of gen- 785. Accrued depreciation-Leased property. eral balance sheet statement and sub- Total other liabilities and deferred atitute the following form for'it: cgedits. ASSETS sTAREXOLDERS' EQUTrY Total - Held by or CURRENT ASSETS 701. Cash. Capital stock (pagr or stated value): issued for Company ,702, Temporary cash investments. 791. Capital stock issued ------...... 703. Special deposits. 792. Stock liability for conversion ...... 704. Loans and notes receivable. 793.. Discount on capital, stock ...... 705. Traffic and car-service balances--Dr. T otal capital stock ...... ------...... 706, Net balances receivable from agents and Capital surplus: conductors. 794. Premiums and assessments on capital stock ------707. miscellaneous accounts receivable. 795. Paid-in surplus ...... ------..... 708, Interest and dividends receivable. 796. O ther capital surplus .. ...----...... ---- ...... 709. Accrued accounts receivable. Total capital surplus ...... - ...... 710. Working fund advances. Retained income: 711. Prepayments. 797. Retained income-:Appropriated ...... ------712, Material and supplies. 798. Retained Income-Unappropriated_ ...... 713. Other current assets. Total retained incom e ...... : ------_ ------Total current assets. Total shareholders' equity ...... -_-...... SPECIAL FUNDS Total liabilities and shareholders' equity ...... 715, Sinking funds. 710, Capital and other reserve funds. 2. Cancel the numbers, titles and texts, ords in which this reserve Is broken down 717. Insuranceand other funds. of § 10.702 C Accrued depreciation; "into components corresponding to the Total speelallunds. road and § 10.702Y21D'Accrued deprecia- primary accounts for depreciable prop- nVE5ENTS tion; equipment, and ubstitute the -fol- erty. These subsidiary records shall 721. Investments In affiliated companies. lowing: show the current debits and credits to 722. Other investments. § 10.735 Accrued depreciatiom; road this reserve by primary accounts. 723, Reserve for adjustment of investment In and equipment. (a) This account shall 3. Cancel the numbers, titles and texts securitles-Cr. be credited with amounts concurrently of § 10.702%E Accrued amortization of 1 Total Investments. charged to operating expenses or other defense projects; road and § 10.702 Y2 rnoPrERTIE accounts to cover the loss in service value Accrued amortization of defense proj- 731. Road and equipment 732 Improvement property, of depreciable road and equipment prop- ects, equipment and substitute the fol- on leased property. erty. It shall also include amounts lowing: 733, Acqu isitIon adjustment, which the Commission may authorize § 10.736 Accrued amortization of de- 734, Donations and grants--Cr. 'the accounting company to credit to ac- fense projects; road and equipment. (a) Total transportation property, count 607, "Miscellaneous credits," or This account shall include the amounts 735, Accrued depreciation-Roadmet and equip- deis"o.oacut73charge to account 621, "Miscellaneous"custd of accumulatedaccut past-provisionsst isions forfo amor- amor- 736, Accruedtsamortizaand7 edam-debits," equipmf deense pro- adjustment,"or to account 733. "Acquisition tization of road and equipment defense in respect to past accruals projects, the cost of which is included Total transportation property less recorded of depreciation. depreciation and amortIzation. (b) At the time of the' retirement of in account 731, "Road and equipment 737. Miscellaneous physical property, each unit of depreciable property, this p ropert,", or account 732, "Improve- 738, A a o r u e d depreclation-Miscellaneous account shall be charged with the entire meats on leased property." This account physical property. ' service value of the unit retired or minor shall be charged with the credit balance Miscellaneous physiqal 'property less item -retired-and not -replaced. - - , - herein applicable to specific property at recorded depreciation. (c) For balance sheet purposes, this the time the 'property is retired. Total properties less recorded depreciation account shall be treated as a single cofi- (b) The accounting company shall and amortization. posite reserve for property. However,. maintain subaccounts separately for ac- OTRdASSET AMsD DEmYac CHARGEs for purposes of analysis, the accountiiig crued amortization of (1) road property 741, Other assets, company shall-maintain subsidiary rec- and (2) equipment.

98 (105 of 135) Wednesday, July 4,Case: 1956 18-55682, 10/31/2018,FEDERAL ID: REGISTER 11068173, DktEntry: 24-2, Page 101 of 1244975

4. Change the. title of J 10.712 Loans (3) Amounts representing the service from the sale of damaged, unclaimed and and bills recewvable, to read: "Loans and value of equipment retired which are overfreight held pending claim; credit notes receivable." relatively so large that their inclusion in balances in clearing accounts, such as 5. Change the ,account number of the depreciation reserve wQuld result in "Shop expenses," "Store expenses," E 10.720 Workzng fund advances, to 710 unduly depleting the reserve. "Operating gravel pits," and "Operating and add the following note to the text (4) This provision covering property quarries"- unadjusted credit items not of the account: retired is to be used only alter permission otherwise provided for and similar items, § 10.710 Worktng advances. 0 of the Commison has been asked and the proper disposition of which is uncer- given. The carrier in Its application to tain. NOTE: Advances to jointly ofned or used the Commission shall give full particu- terminal companies and other companies for lars concerning the property retired, the 13. Change numbers of accounts as permanent worklhg funds or capital pur- follows: poses sbl be Included Inaccounta 721, In- amount which It is proposed to charge to vestments In .Ailated Companies, or 722, operatingexpenses, and the period over 7/01-...From- ...... -- 731" Other Investments, as may be appropriate. which, In Its Judgment, the amount of 702_.. _ . _...... 32 such charte shall be distributed. 702/A 73a 6. Cancel the account number, title 702%B __B -...... ---..-- 731: and text of § 10.722 Other deferred as- 9. Cancel the numbers, titles and texts sets, and substitute the following: of § 10.728 Securities issued or assumed; 702%C, D ---...... ------Cancel unpledged, and § 10.729 Securities zssued New account ...... 735 110.741 Other assets. This account or assumed; pledged. 702VE, F... . _ Cancel New ...... shall include the estimated value of sal- 10. CancMl the account number, title, 703 _ account_ _ -...... - ---... __ 715736" vage recoverable from property retired and text of § 10.770 Other deferred lia- 704- 716 when the recovery of the salvage Is de- blities, and substitute the following: 705 -'/ ------37 ferred for any reason; items of a current 705%,------738 character but of dodbtful value; other § 10.782 Othler iabllitie. This ac- 706 ----.-.- .-----. -.--.- .- .-.- -. _ __ 72 deferred assets; and assets not otherwise count shall include assessments for pub- '707------722 - provided for in general balance sheet ac- lic improvements payable over a period counts. (See § 10.08-7 Current assets.) longer than. one year; retained percent- ages-due contractors to be paid upon '11 723 7. Change the account number of completion of contracts; deposits for 7128...... _ 70 110.723 Prepayments,to 711 and add the construction of side tracks to be refunded '13 ...... '05 following note to the text of the account: on basis of an agreed portion of the earn- '14 ------7...... 2..--'106 71- - '------§ 10.711 Prepayments. a 0 0 ings from the traffic handled over the 707 No=s: Expenditures, in the nature of ad- tracks; other deferred liabilities; and '16 .... 712 ditional rental, borne by a carrier'for Im- liabilities not otherwise provided for In 717 .... '08 Provements to dfice buildings and other fa- general balance sheet accounts. '18 709 cilities rented for more than one year shall NOTr: The amount of assessments for pub- 719..... 713 be Included In account 743, Other deferred 11. improvements, If payments are to be 1720-.--- '10 charges. made within one year. shall be included In 72l _ -'17 account 761, "Other current liabilities." -....--- Cancel 8. Cancel the account numbers, titles '23 ...... - '11 and texts of § 10.726 Property retired 11. Add the following account number, 725 ...... - 742 chargeable to operating expenses, and title and text: New account ..------.-. 741 § 10.727 Other unadjusted debits, and 72627 ------Cancel substitute the following: § 10.774 Casualty and other reserves. New account-- '43 This account sihall include reserves cre- '28-'2_ .. Cancel § 10.743 Other deferred '751 791 charges. (a) ated by charges io operating expenses to 7/52 ------792 This account shall include the amount of provide for estimated liability for in- debit balances in suspense accounts that Juries to persons and loss and damage cannot be cleared and disposed of until claims; estimated liablity for revenue 765 --55 additional information is received, such overcharges, such as those covered by '55% ------7'168, as freight claims paid when found to be reparation claims; and reserves not '56 ------767 correct, but in advance of investigation otherwise provided for In balance sheet '56J '66 with other carriers; debit balances in accounts. '57 769 clearing accounts, such as "Shop ex- No=a: With respect to injuries to persons '58 .... '51 penses,. "Store expenses," "Operations and loss and damage claims, f the settle- 59 ------752 of gravel pits," 760 '53 and "Operation of quar- ments when audited are charged to this ac- 761 vies"; unextinguished discount on short- count the balances 754 for each year shall be kept '62 ...... 755 term notes; unadjusted debit Items not separately until all items have been adjusted and cleared, but, If the settlements "/64763 .. .. .756 otherwise provided for and similar Items. when 765 ..... -5------57757 the proper dlspositionof which is uncer- audited are charged to the appropriate expense accounts the balance in this account '/66 ..... '59 tan. shall be adjusted through thae appropriate (b) This account also is intended as a expense accounts so as to reflect'the probable 767....-.------'160 suspense account in which may be in- liability at the close of each year. '169..... ------.'171 '71 - cluded deferred amounts for property 76914 ------retired chargeable to operating expenses 12. Cancel the account number, title 781 and text of § 10.778 Other unadjusted '70 ...... ------Cancel as follows: 772 -'783 (1) Amounts representing the service credits, and substitute the following: ------772 -7 value of nondepreclable road property § 10.784. Other deferred credits. This 773.... -- 773 retired'which are relatively so large that account shall include the amount of New account -....--- 774 their Inclusion In the accounts for a New account ------...... -- 782 credit balances in suspense accounts that ,.778...... -- single year would distort those accounts. cannot Cancel be entirely Sleared and disposed New account ...... ------784 (See J 10.04-6 Disb-ibutionof chargesfor of until additional information is re- '79 ...... nondepreczable '85 road property retired.) ceived, such as amounts received from 4 ..... Cancel --- (2) Amounts representing the service sale 7/84.-- 795 of mileage tickets, to be disposed of 7/84.2_--- '796 value of depreciable road property re- as mileage is honored; amounts received tired which are relatively so large that from sales of excess baggage script, to be '185...-. '97 their inclusion In the depreciation re- disposed of as coupons are honored; in- '8 -- 798 serve would result in unduly depleting terchangeable mileage credential ticket [P. R. Doe. 56-5283 Filed, July S. 1956; the reserve. redemption funds; amounts collected 8:47 a. m.) No= 29----

99 (106 of 135) 497G Case: 18-55682, 10/31/2018,FEDERAL. ID: 11068173, REGISTER DktEntry: 24-2, Page 102 of 124 NOTICES

Gore Campground: DEPARTMENT OF THE TREASURY not yet approved, as lots 5, 6, 7, 8, 9, 10, T. 5 S., R. 79-W., 11, Sec. 21, T. 26 S., R. 22 E., Salt Lake Sec. 18: NWI/NE'/. Foreign Assets Control Meridian, and contains approximately Bighorn Picnic Ground: 23 acres. T. 5 S., R. 7Q W., HOG BRISTLE OF GERMAN ORIGIN The above described land is hereby re- DYED Sec. 18: NE/ 4 NW'/4 . classified as suitable for disposal under Hornsllver Picnic Ground: AVAILABILITY OF LICENSES FOR IMPORTATION the act of September 30, 1890 (26 Stat. T. 6S., R. 80 W., Sec. 29: SWV SW'ASW%; Notice is hereby given that the Treas- 502) to accommodate the requirements 4 of the City of Moab, Utah. The reclas- Sec. 32: WI/2NW/ 4 NW/ 4 . Iry Department is now prepared to con- Camp Tigawon Recreation Area: Sider applications on Form TFAC-1 for sification is for a public putpose and T. 6 S., R. 81 W., licenbes under the Foreign Assets Con- is, therefore, nbt subject to the provi- Sec. 14: SW/SW'/: sions contained in the act of September trol Regulations, 31 CFR 500.101 to Sec. 22: NE % NE/ 4 ; 500,808, to consummate contracts for the 27, 1944 (58 Stat. 747; 43 U. S,C. 279-284) See. 23; NW/NWA. purchase aid importation from Ger- as amended, granting. preference rights Blodgett Campground: many, In appropriate cases, of dyed hog to veterans of World War II and others. T. 7 S., R. 80 W., Sec. 5: Lot 8 (NW 4NW 4 ), N SWI4 bristles of German origin, provided that Wf.N. ANDERSEN, NW 1/; dyed and dressed pur- such bristles were State Supervisor. Sec. 6: Lot8 (NE'/4 NEI). suant to such contract or contracts en- Rocky Fork Campground: the applicant and the [F. R. Dec. B6-5303; Filed, July 3, 1956; tered Into between 8:51, a. m.] T.8S.iR.84W., German exporter prior to April 14, 1955, Sec. 18: WINW/ 4NE, NE NW ; and.in reliance upon the German certifi- Sec. 7: SSEY4 SW /4 . cate of origin procedure, which was an-. Dinkle Lake Campground: T. 9 S., R. 87 W., nounced in the FEDERAL REGISTER on Sep- COLORADO Sec, 4: E% Lot 9. Lot 10 (E1/2SWy4 NW/ 4 , tember 22, 1953 (18 F. R. 5655), and NOTICE OF PROPOSED WITHDRAWAL AND SEV NW ). which Is no longer in effect. Licenses is- .RESERVATION OF LANDS Janeway Picnic Ground: sped pursuant to such applications will T. 9 S., R. 88W., authorize the 'importation of bristle for JUNE 27, 1956. Sec. 28: W 2 NE 4 SW 4 , EVNW 4 SW . entry Into warehouse. The release from The United States Forest Service of Avalanche Creek Campground: warehouse of bristle imported pursuant of Agriculture has filed T. 9 S., R. 88 W., the Department Sec. 34: SVASWI/ NE!/ , NW/ SE/ , to such licenses will be authorized only an application, Serial No. Colorado 4 4 4 24 SW/ 4 NEV4 SE/ 4 , NE!/4 SW/SEy4 , NW /4 aftei" the Foreign Assets Control is sat- 011497, for withdrawal of the lands de- SEySE4. isfled by physical inspection of the mer- scribed below, from all forms of appro- Snowmass Creek Campground: chandise, and such other measures as priation under the public land laws, T. 10 S., R. 86 W., may be appxoprlate, that the merchan- including the general mining laws but Sec. 4: SE /SE!/- dise consists solely of dyed bristle of not the mineral leasing laws, subject to Sec. 9: NE/ 4 NE!/4 ; Germtn origin. existing valid claims. I Sec. 10: NWVANW'/. Applicants are advised that the fact the land for use Redstone Picnic Ground: The applicant desires T. 10 S., R. 88 W., that a licensee has paid for bristle under as sites for camp and picnic grounds and a license will not be considered a factor Sec. 9: SW/ 4 SWSWIA; recreation areas in the White River See. 16: NW-I/ 4 NW/ 4 NW/ 4 . which would warrant the release from National Forest. Grottos Campground: warehouse of bristle which is not found For a period of thirty (30) days from T. 11 S., R. 83 W., by Foreign Assets Control to consist en- the date of publication of this notice, Sec. 6: SEN4 SE/ 4 . tirely of dyed bristle of German origin. persons having cause may present their Began Flats Campground: Additional information and license ap- objections in writing to the undersigned T. 11 S., R. 88 W., plication forms may be obtained from official Sec. 18: SSNEY4, X/N V/SEA. of the Bureau of Land Manage- Lost.Creek Campground: the Foreign Assets Control, Treasury De- ment, Department of the Iiterior, 357 'partment, Washington 25, 1. C., or the T. IN., R. 90 W., New Custom House, P. 0. Box 1018, See. 15: S / Lot 1 (SW 4 SE!/4 ), SE/4 Federal Reserve Bank of New York, 33 Denver 1, Colorado. SE S8W .I Liberty Street, New York 45, New York. If circumstances warrant it, a public Total area, 1,269.24 acres. (SEAL] ELTING ARNOLD, hearing will be held at a convenient time Acting Director, and place, which will be announced. J. ELLIOTT HALL, ForeignAssets Control. The determination of the Secretary on Acting State Supervisor, the application will be published in the [F. R. Doec. 56-5315; Filed, July 3, 1956; EF. R. Doc. 56-5305; Filed, July 3," 1956; FEDERAL REGISTER. A separate notice 8:53 a. In.] 8:51 a. m.] will be sent to each interested party of record. DEPARTMENT OF THE INTERIOR The lands involved in the application are: Bureau of Mines-- Bureau of Land Management SIXTH PRINCIPAL MERIDIAN, COLORADO VARIOUS OFFICIALS OF REGION V WHITE RIVER NATIONAL FOREST UTAH [Regional Administrative Order 71 Cliff Lake Campground: S MALL TRACT CLASSIFICATION ORDER PAR- T. 2 S., R. 90 W., DELEGATION OF AUTHORITY TO EXECUTE STIALLY REVOKED; LAND RECLASSIFIED Sec.30: SW SW;/4 ; CONTRACTS Sec. 31: NW/ 4 NW,.. JUNE 26, 1956. South Pork Campground: 1. In accordance with the provisions P'ursuant to authority delegated to th6 T. 2 S., R. 90 W., of paragraph 205.2.4A (4) of the Bureau State Supervisors by section 2.5 of Re- See. 19: SWNE/ 4 , WV2SE/ 4 . of Mines Manual, the-following officials delegation Order No. 541, issues April 21, Sweetwater Campground: of Region V, Bureau of Mines, may, sub- 1954, by the Director, Bureau of Land T. 3 S., R. 87 W., ject to the limitations appearing in Sec. 16: Lot 5 (SE/NE4), NE 4 SEV/. Management, I hereby revoke Small Clark Cabin Picnic Ground: Bureau of Mines Manual, paragraph Tract Classification Order No. 1, Utah, T. 3S., R. 91W. 205.2.4A (1) and those herein prescribed published October 12, 1954, as to that Sec. 3: SESE/4 SW, SW/4SW/ 4 SEV4: including approval by higher authority, part of Sec. 21, T. 26 S., R. 22 E., Salt See. 10: NWANWY'4 NE/ 4 , NE/4NEV4NW!. execute contracts and purchase orders Lake Meridian, lying northeast of the East Elk Campground: for equipment, supplies or services, in- county road, This area has been desig- T. 4 S., R. 90 W.. cluding maintenance in conformity with nated on the supplemental plat of survey, Sec. 31: Ey/NE/ 4 . applicable regulations and Statutory re-

100 (107 of 135) 'Wednesday, July Case:4, 1956 18-55682, 10/31/2018,FEDERAL ID: REGISTER 11068173, DktEntry: 24-2, Page 103 of 1244977 quirements: Assistant Regional Director, trative Order 696, Part B, Section I, "SW NE4S%2" to read "'SWY4 NE4, - Chief, Division of Administration, Chief, Paragraph 4 (a). Branch of Property Management, Super- (e) T. 30 S., R. 1 W. (Douglas County), intendents of stations, administrative H. P. GREzNwALD, RegionalDirectbr, sec. 33, change "N?%SWY%" to read "Nz, - officers administrative assistants, pur- Region V. SWY4 ." chasing agents and certain other em- (f) Add "T. 73 S., -R. 3 E.," just prior plpyees designated by name at College Approved: June 26, 1956. to the.third line, from the bottom, third. Park, .Maryland; Pittsburgh, Pennsyl- Tzos. I. MILLER, column, page 4529 (Jackson County) to vania; Morgantown, West Virginia; Acting Director, indicate that the lands following sec. 1 Norris, Tennessee; Tuscaloosa, Alabama; ,Bureau of Mines. and preceeding sec.-35, now listed under - •Gorgis, Alabama; and Minneapolis, IF. R. Doc. 56-5299; Filed, July. 3, 1956; T. 40 S., R. 1 R_, -are in the former town- Minnesota. 8:50 a. m.] ship. 2. In accordance with the provisions (g) T. 3 S.,. R. "8 W. (Tillamook and limitations listed in Paragraph 1. County), see. 25, "N'NY4" should read preceding, the following officials of Region V may approve contracts and purchase orders for equipment, supplies, Office of the'Secrelary or Services, including maintenance: [693221 - DEPARTMENT OF COMMERCE (A) Purchases or services leases excluded) not exceeding $500.00, micro- OREGON Federal Maritime Board filming not exceeding $100.00, alterations EXCHANGINO ADMINISTRATIVE JURISDICTION SANTIAGO DE CUBA CONFEECE AND and repairs to *buildings not exceeding OF CERTAIN OREGON AND CALIFORNIA RAIL- BUCCApEE INE; INC. $500.00, purchases from Geieral Services ROAD GRANT LANDS AND NATIONAL FOREST Administration or its contractors not ex- LANDS NOTICE OF AGREEMZENT FiLED WITH TIM ceeding $2,000.00: All officials named in Correction BOARD FOR APPROVAL paragraph 11 above, as having authority The land descriptions in the order * Notice is hereby given that the fpo]low-' to execute contracts and purchase orders. of the Secretaries of Agriculture and of Ing described agreement has been filed (B) Acquirement Uy lease within the the Interior, appearing as FEDERAL REG- with-the Board for approval pursuant to areaunder the administrative Jurisdic- ISTrJ Document 56-5018 at pages 4525-. section 15 of the Shipping Act, 1916, 39- tion of the Office of the Regional Di- 4530 of the issue for June 23, 1956, are Stat. 733, 46 U. S. C. 814. rector, RegionV, space in buildings, con- corrected in the following -particulars: Agreement No. 7650-B, between the sistent with the 1irovlsions of Bureau of In Part I of the order: member lines of the -Santiago de Cuba Mines Manual, Volume IV, paragraph (a) T. 33 S., R., 5 W. (Josephine ,Conference and Buccaneer Line, Inc., 2.8.30: Assistant Regional Director, County), see. 32, change "NY4SEY4 " to covers the admission of Buccaneer Line Chief, Divisionof Administration, Chief, read "SWI4SEy4." to associate membership in that confer- Branch of Property Management. (b) T. 33 S., R. 10 W. (Curry County), ence. As an associate member, Bucca- (C) Purchases from General Services sec. 2, change 'NWY4SEIj, NEYi" by neer Line will be obligated to abide by all Administration or its contractors in'the deleting the comma which appears at the the rates, rules, regulations and decisions range $2,000-$10,000, and other pur- end of the last line, first column, page" of the conference; will have no vote in chases in the range $500-$1,000: Assist- 4526. conference affairs; will be permitted to. antRegional Director. (c) By eliminating the third group of participate in conference contracts with 3. Change orders and extra work or- lands in column 2, page 4526 headed shippers; and will be exempt from post- ders-With respect to any contract (in- "Douglas County" which is an incorrect ing of the usual surety bond. Agreement cluding a contract approved by the duplication. The correct grouphg for No. 7650 covers the trade between U. S. Director or the Regional Director, Region Douglas County commences near the Atlantic and Gulf ports and Santiago de V) the following officials may, up to bottom of column 2. Cuba. $500.00 issue change orders and extra (d) By eliminating the second group- Interested parties may inspect this -work orders pursuant to the contract, ing of lands in column 2, page 4526 agreerent and obtain-copies thereof 'at enter into any modifications and amen4- headed "Hiamath County,' which is a the Regulation bffice, Federal Maritime ments of the contract which are legally duplication of the lands described in the Board, Washington, D. C., and igay sub- permissible, -and terminate the contract fourth group of that column. mit, within 20 days after publication of if such action is legally authorized: As- (e) T. 28 S., R. 3 W. (Douglas County), -this nqticein the FERAL RESRm writ- sistant Regional Director, Chief, Divi- sec. 30, change "SNWYa" to read ten statements with reference to the sion -ofAdministration, Chief, Branch of "tE NW'V."1 agreement and, their position as to ap- Property Management, Superintendents (f) T. 34 S., R. 2 E. (Jackson County), proval, disapproval, or modificatfon, to- of stations at College Park, Maryland; sec. 20, "WY4SWY4" should read "W% gether with request for hearing should Pittsburgh, Pennsylvania; Morgantown, SWY4." " such hearing be desired. West Virginia; Norris, Tennessee; Tus- (g) T. 39 S., R. 2 W. (Jackson County), Dated: June 29, 1956. caloosa, Alabama; Gorgas, Alabama; and sec. 25, "SEY4NSYj" should read "SE Minneapolis. Minnesota. NE A.-t By' ordr of the Federal Maritime' -4. Authorities delegated by this order (h) T. 40 S., R. 2 . (Jackson County), Board. may be redelegated only with the ap- see. 10, change -NWY4SEY4, NWY NWY " proval of the Regional 'Director, 4 4 [SEAL] A. J. Wnr.ALIS, -and 'SISSEY4, NW/ 4 NWY4 " by deleting Secretary.. Region V. the comma in each Instance: 5. The delegations contained herein [F. n. Doc. 56-5326; Piled, July 3, 1956; U) T. 38 S., R. 3 W. (Jackson County), 8:55 a. M_[ supersede those in Paragraph 4 of Ad- sec. 16, "NE' SWY4" should read "NEY minitrative Order No. 3, Region V, per- SWY4." 4 4 taining to purchases and contracts and InPartI of the order: restates and redelegates the authority (a) T. 34 S., H. 9 W. (Josephine JAmEs LouDo & Co., Iwa., AND D. C. to. execute leases delegated by the Secre- County), sec. 21, change '"WSEYASEA tary of the Interior to heads of Bureaus SEY" to read "WISE , SEYiSEV:4' AiwREws & Co., -c. in section 52 of Secretary's Order 2509 (b) T. 35 S., R. 9 W. (Josephine NOTICE OF AGREEMENT FILED WI THE (17 F. R. 6793), subdelegated to the Re- County), sec. 33, '!E , E%," delete the BOARD Foa APPROVAL gional Director and Chief, Branch of duplication. Notice is hereby given that the follow: Property Management by the Director (c) T. 35 S., R. 10 W. (Josephine ing described agreement has-been filed -of the Bureau of Mines in Bureau Ad- County), sec. 13, "NEYtNW!4 NEIA with the Board for approval pursuant ministrative Order 666-B (19 P.R. 3483) NWW," delete the duplication. to section 15 of the Shipping Act, 1916, and on reorganization of the Bureau (d) T. 12 S., R. 8'W. (Lincoln County), 39 Stat 733, 46 U. S. C. 814. , --transferred to the Regional Director, sec. 13, change "NE' 4EYSWY4 " to read Agreement No. 8074 between James Region V, by Bureau of Mines Adminis- "1NEY4 , ESWY,." In sec. 17, change Loudon & Co., Inic. (Los Angeles) and

101 (108 of 135) 4978 Case: 18-55682, 10/31/2018, ID:NOTICES 11068173, DktEntry: 24-2, Page 104 of 124

D, C, Andrews & Company, Inc. (New In its answer in Docket No. G-10592, File No. BMPCT-3213; for modification York) Is a cooperative working arrange- United adopted its answer to the motion of construction permit and Laurel Tele- ment whereby freight forwarding serv- of Tyler Gas in Docket No. G-9547 and, vision Company, Inc., Laurel, Mississippi, ices are to be performed by the parties in'addition, denied that it had or has any Docket No. 11674, File No. BPCT-2031, for each other. contract with the City of Tyler, Texas. for t e 1 e v i s ion construction permit Interested parties may inspect this United again points to the decisions in (Channel 7). agreement and obtain copies thereof at its favor in Tyler Gas Service Company 1. Prehearing conferences under Riqle the Regulation Office, Federal Maritime v. United Gas Pipe Line Company, C. A. 1.813 and 1.841 were held on April 30, Board, Washington, D. C., and may sub- No. 1622, United States District Court for May 7, May 24, June 11 and June 27, mit, within 20 days after publication of the Eastern District of Texas, Tyler Divi- 1956, the transcript.of which is incor- this notice in the FEDERAL REGISTER, sion, decided December 29, 1953, affirmed porated by reference. The follewing written statements with reference to the by the United States Court of Appeals for schedule is prescribed (Tr. 233): agreement and their position as to ap- the Fifth Circuit, 217 F. 2d 73, as being a. Exchange of vritten direct cases proval, disapproval, or modification; to- final judgments and obligatory upon under Rule 1.841, July 20, 1956,,5:00 p. m. gether with request for hearing should Tyler Gas, City of Tyler, Texas, and b. Further conference under Rule such hearing be desired. United. 1.841, July 30, 1956, at 10:00 a. in., in the The joint petition and the -answer of Dated: June 29, 1956. offices of the Commission, Washington, United in Docket No. G-10592 raise sub- D.C. By order of the Federal Maritime stantially the same question posed in the c. Commencement of hearing, Sep- Board. proceedings in Docket Nos. G-1142, G- tember 17, 1956, at 10:00 a. In., in the 2210, and G-9547, and it appears appro- [SEAL] A. J. WILLIAmS, offices of the Commission, Washington, priate that the matters involved and the Secretary. D. C. (continued from originally sched- issues presented by such pleadings be uled date of June 25, 1956), IF, n, Dec, 56-5327; Filed, July 3, 1956; resolved at thesame time. 8:55 a, m.] The Commission finds it is necessary So ordered, This 27th day of June 1956. and appropriate in carrying out the pr6- FEDERAL COMMUNICATIONS visions of the Natural Gas Act and for * COMMISSION, FEDERAL POWER COMMISSION the proper administration thereof that [SEAL] MARY JANE MORRIS, [Docket Nos. G-1142, G-2210, G-9547, and oral argument be had concerning the Secretary. G-10592] matters involved and the issues presented by the joint petition filed on June 15, [F. R. DeC. 56-5317; Filed, July 3, 1956; UNITED GAS PIPE LINE Co. 1956 by Tyler Gas and the City of Tyler, 8:53 a. m.] ORDER FURTHER CONSOLIDATING PROCEED-- Texas, in the proceeding in Docket No. INGS FOR PURPOSE OF ORAL ARGUMENT G-10592; and that the proceeding in ONLY AND SUPPLEMENTING ORDER ISSUED Docket No. G-10592 be consolidated with [D3cket No. 11743; FCC 56M-631] JUNE 22, 1956 the proceedings in Docket Nos. G-1142, G-2210, and G-9547 solely for purpose of CONFEDERATE RADIO CO. (WPGA) By order issued June 22, 1956, the oral argument upon the pleadings de- ORDER SCHEDULING HEARING Commission consolidated the preceding scribed above. In Docket No. G-9547 with the proceed- The Commission orders: In re application of Confederate Radio Ings in Docket Nos. G-1142 and 0-2210 (A) The proceeding in Docket No. G- Company (WPGA), West Point, Georgia, for purpose of oral. argument upon the 10592 be and it is hereby consolidated Docket No. 11743, File No. BMP-7066; for matters involved in and the Issues pre- with the proceedings in Docket'Nos. 0- modification of construction permfit. sented by (1) the May 15, 1956, motion 1142, G-2210, and G-9547, solely for the It is ordered, This 21st day of June of Tyler Gas Service Company (Tyler purpose of the oral argument provided in 1956, that Jay A. Kyle will preside at the Gas) and the answer of United Gas Pipe Paragraph (B) hereof. hearing in the above-entitled proceeding Line Company (United) in Docket Nos. (B) The order of the Commission is- which is hereby scheduled to commence G-1142 and G-2210; (2) the petitions to sued June 22, 1956, in the proceedings in on September 10, 1956, in Washington, Intervene of Tyler Gas and the City of Docket Nos. G-1142, G-2210, and G-9547, D.C. Tyler, Texas, In such proceedings; and be and it is hereby supplemented to pro- Released: June 26, 1956. (3) the motion of Tyler Gas and the vide that the oral argument fixed to be answer of United in Docket No. G-9547. had on July 13, 1956, also shall concern FEDERAL COMMUNICATIONS We fixed'July 13, 1956, as the date'of oral the matters involved in and the issues COMMISSION, argument thereon. presented by the joint petition filed June [SEAL] MARY JANE MORRIS, United, on May 15,1956, filed increased 15, 1956, in Docket No. G-10592 by Tyler Secretary. rates, Including increased rates and Gas Service Company and the City of charges applicable to the sales of gas to IF. R. Doc. 56-5318; Filed, July 3. 1956; Tyler, Texas, and by the answer of . 8:54 a. m.] Tyler Gas, These increased rates and United Gas Pipe Line Company. charges were suspended until November 10, 1956, by order of the Commission Issued: June 22, 1956. issued June 15, 1956, in Docket No. By the Commission. G-10592. [Docket No. 11761; FCC 56-609] Tyler Gas and the City of Tyler, Texas, [SEAL] LEON M. FUQUAY, AMERICAN CABLE AND RADIO CORP. on June 15, 1956, filed a-joint petition in Secretary. Docket No. G-10592 for an order of the' [F. R. Doc: 56-5281; Filed, July 3, 1956; ORDER DESIGNATING MATTER FOR HEARING ON Commission rejecting the May 15, 1956, 8:46 a. m.] STATED ISSUES filing of United insofar as it applied to In the pIatter of American Cable and sales of gas to Tyler Gas. Radio Corporation, Docket No. 11761; re- Petitioner state, and the petition so FEDERAL COMMUNICATIONS vision of Joint Tariff F. C. C. No. 7, to pro- shows, that the joint petition in Docket COMMISSION vide tie-line indications without charge. No. G-10592 and the other pleadings At a session of the Federal Communi- hereinabove referred to are grounded IDocket Nos. 11673, 11674; FCC 56M-640] cations Commission held at its offices In upon the same basic facts and principles MISSISSIPPI BROADCASTING CO. (WCOC- Washington, D. C.,, on the 27th day- of ,of law, namely, the rule of the United TV), AND LAUREL TELEVISION CO., INC. June 1956; States Supreme Court in Federal Power ET AL. The Commission, having under con- Commission v. Mobile Gas Service Cor- sideration a revised tariff schedule, filed poration, 350 U. S. 332, and Federal STATEMENT AND ORDER AFTER PREHEARING CONFERENCES by American Cable and Radio Corpora- Power Commission v. Sierra Pacific tion, to become effective-July 1, 1956, Power Company, 350 U. S. 348. They In re applications of Mississippi designated as follows: American Cable request that these matters be consoli- Broadcasting Company (WCOC-TV), and Radio Corporation, Joint Tariff dated and set for oral ,argument. Pachuta, Mississippi, Docket No. 11673, F. C. C. No. 7, 1st Revised Page 70.

102 (109 of 135) Wednesday, July Case:4, 1956 18-55682, 10/31/2018,FEDERAL ID: REGISTER 11068173, DktEntry: 24-2, Page 105 of 1244979

which amends Rule 31 by adding para- sion without preparing either a recom- Released: June 28, 1956. graph .04 reading as follows: mended or initial decision. FxnEATr COMXr ICm IONS .04 Subject to admisibility at overreas Released: June 28, 1956. COMMISSION points, telegrams addressed to customers [sEAT] 1RY having te-line connections with either Com- FEDERA CO~mUmCATxONS JaM MoRRIs, pany may bear a non-chargeablo routing in- CozansoI, Secretary. struction consisting of the addrcae's tic- [F. F. Doc. 56-5320; Filed, July- 3, 1956; line number. Overseas senders must incert Secretary. 8:54 a. m.] such routings at the time the mecsage is ffled. Such routings will not form part of [F. . Doc. 56-5319; Piled. 'July 3, I956; the chargeable addrss which must comply 8:54 a. m.] vith Rule 21.- [Mexican Change List 191] It appearing that the.CommLssion Is MEXICAN PADIO STATIONS unable to determine from an examination of the aforesaid amendment [DocketNo. 11761; FCC 56M-643] LIST OF CH NGES, PROPOSED CHANGES AND whether CHANGES IN ASSIGNMIENTS it will be lawful under the Communica- AMmERIcN CABLE AND RADIO CORP. tions Act of 1934, as amended, insofar ORDER SCHEULIG HEARINJGMA31196 - M&z"31, 1956. as the provision at Issue purports to per- OnERateDLof Amein Notification undei the provisions of mit one class of users to insert matter In the matter of American Cable and Part fI, section 2 of'the North Arflerican without charge whereas other classes of Radio Corporation, Docket No. 11761; re- Regional Broadcasting Agreement. users are required to pay for the matter vision-of Joint Tariff F. C. C. No. 7, t6. iUst of Changes, Proposed Changes, of a similar nature which they Insert;' provide tie-line indications without and Corrections in Assigntnents of Mexi- It further appearing that If the afore- charge. can Broadcast Stations Modifying the said amendment is permitted to become It is ordered, This 28th day of June Appendix Containing Assignments of effective on the date specified in the re- 1956, that Herbert Sharfman will preside Mexican Broadcast Stations (Mirmeo- vised tariff schedule, the rights and In- at the hearing ln the above-entitled pro- graph 47214-6) attached to the Recom- terests of the public may be adversely ceeding which Is hereby scheduled to' mendations of the North American Re- affected thereby; commence ozt July 17, 1956, in Wash- gional' Broadcasting Agreement Engi- It is ordered, That pursuant to sec-. ington, D. C. neering Meeting January 30, 1941. - tions 201, 202, 204, 205, and 403 of the Communications Act of 1934, as METCAse lROADCasT STMi0No' amended, the ConumissIon sball enter upon a hearing and Investigation con- Pobable data cerning the lawfulness of the classiflea- Call etersj Location Power . Se C,d oehange o tions, regulations, and practices set ment of forth in the aforesaid amendment; operation It is further ordered, That pursuant to section 204 of the Communications Act Z70 kiloejces of 1934, as amended, the operation of XET7- 1 -Tom-on,Cal leter). (assnmtn of I1kw DJilo w 9 IV Apr. 30,1956 the aforesaid amendment Is hereby suspended until the Ist day of October 1956, COOkloeCles - Monteriey, Naovo Leon (assign- unless otherwise ordered by the Com- 5ww ...... ND Do. mact oi ca letters). 31E mission; and that during said period of 660 klocycle, suspension no changes shall 1 be made X M-Oneaca, Oaxaca (assignment of call in such suspended amendment unless - ,9"s). I kw...... _..._ ND Do. authorized by special permlIon of the XEEL Lo Mochis, Sinaloa (assignment of ND H call leuers). 250 w.. Do. Commission; XEEI_ Puerto Vaularto, Jalisco (assignment . It is further ordered, That, without In of call ttcers). ND Do. any way limiting the scope of the In- 660 kilfdes vestigation, it shall include consideration SEEL.. Fr=nMo Zacatecas (assignment of ND of the following Issues: cal letlers). III Do. XEEN.--. Mo Vcrde San Luis Pot (assign- ND (a) Whether the classifications, prac- . mact of call letter). Do. tices, and regulations provided for In IE 250 w Dr 0 w X. ____ said tariff amendment are lawful under XEE0.._ 2ontrry, Neuvo Leon (assign. 250w .... ND section 201 of the Commuhications Act ment of call letters). Do. XEEN.... Proereso, Yucatan (assignment of of 1934, as amended; call letters). t ND Do. (b) Whether the classifications, prac- 750 kiocycle, tices, andregulations provided for n said XEEQ... San Luts Potosi, San Luts Potosi tariff provision are lawful under section (amignment of calletters). ND H Do. 202 of the Communications Act of 1934, as amended; XEEG-. Torreos, Coahula (change In call 1000 w__. ND Do. It is further ordered, That a copy of letters from XETJ). this order be filed In the offices of the &Okilocycles HI XEE.__ St. larsbark Chihuahua (assign- 600W w... ND Commission with the tariff schedule con- meat a[ call letters). Do. EET..,.. Fortn do W Flores, Veracruz (as- taining the amendment herein sus- signment f call letters). lkw.... ND I Do. pended; that the American Cable and NE ., Teple, Nayarit (assignment of call ND Radio Corporation, with Its subsidiaries, lcetes). Do. Mackay Radio and Telegraph Company,, 870 kiocycles Commercial Cable XEEV... Vilabermosa, Tabasco (assignment I kw ...... ND Do. Company, and All I of cal ettas). . America Cables and Radio, Inc., are S. , 9.90Wocldes .hereby made party respondents to the Cullacan, Sinaloa (assignment of DA-N proceeding, and that a copy hereof be cal letters). 0Do. Bnsenada, Baja Californa (assign- Do. served upon said respondents; :mcnt of call letters). It is furtler ordered, That this matter 970 kilocles is designated for hearing at a time and Cab.rc. Sonora(assignmentofcol 25OWD/lQwN.... -Do. place to be specified in a subsequent' order; and that the presiding officer 1010 kilocycles -shall certiy the record to the Commis- Irmpof cal ao, fetter). Oaa-m.ato (assignment ND.- Do.

103 (110 of 135) 4980 Case: 18-55682, 10/31/2018, ID:NOTICES 11068173, DktEntry: 24-2, Page 106 of 124 MEXICAN BROADCAST STATIONS-Continued . SECURITIES AND EXCHANGE

• Probableof changeo d ate COMMISSION Call letters r R. W. PORTER Location Power tennaAn- Sched-ule Cltss ment gomencof ORDER FOR PROCEEDINGS AND NOTICE OF operation HEARING 1100 kflocydcs In the matter of Reese Wade Porter, dba R. W. Porter, 500 West Panola Street, XvGcw.... Cosamaloapan, Veracruz (assign- DA-N II mont of call letters).. 1110 kilocycles 95 Carthage, Tex. ,At a regular session of the Securities and Exchange Commission held at its X1OQ .... San Luis do )a Paz Ounnajuato (as- 500w------ND ignment of call fetters). office in the city of Washington, D. C., on 1160 kilocycles the 28th day of June 1956. Conter, Veracruz (assignment of Ikw ...... DA-N II I. The Commission's public official files, Caloletters). disclose that Reese Wade Porter, a sole Xr(Eav.... 1170 kiloeydes proprietor, bda R. W. Porter, hereinafter Nogales Sonora (assignment of call 250w ...... ND II referred to as registrant, is registered as letters). a broker-dealer pursuant to section 15 If O'kilocYde (b) of the Securities Exchange Act of Ensenada, aA California (assign- 100 w ...... ND Iv 1934. / ment of call lotters). 1270 kilocycles II. The Records Officer of the Commis- sion has filed with the Commission a XMIC .... Nogales Sonora (assignment of call 250 w NIIO0 w N .... ND IV statement, a copy of which is attached 1 1280 kilocycles hereto and made a part hereof, stating Los Moehls Slnaloa (assignment of 250 w ...... t.-- ND IV that registrantdid not file with the Com- call letters). mission rbpbrts of his financial condition XEIII.... 1600 kilocycles during the cale'ndar year 1955, as re- Martinez do Ia Torre, Veracruz (as- 250 w D/100 w N .-----ND Iv quired by section 17 (a) of the Securities signment of call letters). - Exchange Act of 1934 and Rule X-17A-5 Neuva Roslta, Coahuila (correction 1000 w D/100 w N .... ND Iv 95' adopted thereunder. XErItW.... of cEor in nighttime power). 1620 kilocycles III. The information reported to the Montemorolos, Nuevo Leon (asslgn- 250 w D/100 w N ------IV Commission by its Records Officer as set mont of call letters). forth in Paragraph II hereof tends, If 1650 kilocydes true, to show that registrant violated Oaxaca,letters).I Oaxaca (assignment of call 1 kw...... ND III section 17 (a) of the Securitids Exchange XRllfl'.. Act of 1934 and Rule X-17A-5 adopted Tierra Blanca, Veracruz (assign- 25ew D/100 w N .... IV ment of call letters). under said section. 'dlMIZ .... Alvarado, Veracruz (delete assign. 250 w D 150 w N ...... IV IV. The Commission, having consid- went). 1870 kilocycles ered the aforesaid information, deems it necessary and appropriate in the public Fortin do las Flores, Veracruz (as- 500 w D /250 w N ...... ND IV. aignment of call letters). interest and for the protection of inves- 1880 kilocycles tors that proceedings be instituted to determine: La Paz, Baja California (assignment 250w ...... ND IV of call letters). (a) Whether the statement referred 1890 kilocyae to in Paragraph II hereof is true; Tehuantepec, Oaxaca (assignment 2.5 kw D/350 w N .... ND . (b) Whether registrant has wilfully of call letters). violated section 17 (a) of the Securities 1400 kilocydes Exchange Act of 1934 and Rule X-17A-5 'dESD .. Ste. Barbara, Chihuahua (increase 200 w...... ND IV adopted under said section; power). (c) Whether, pursuant to section 15 iv (b) of the Securities' Exchange Act of Rosarlo, Slnaloa (assignment of'call IV letters). 1934, it is in the public interest to revoke Parras, Coahulla (assignment of call 5kw ...... ND III registration'of registrant; and letters). (d) Whether, pursuant to section 15 1460 kilocydees (b) of the Securities Exchange Act of 'd11IT. Tampico, Tamaulipas (assignment 1 kw ...... ND III 1934, pending final determination, it is of call letters). necessary or appropriate in 1490 kilocycles the public interest or for the protection of investors Oliliacan, S naloa (assignment of 250 W...... ND to tuspend casllletters). the registration of registrant. 1500 ktlocyda IV V. It is ordered, That registrant be given an opportunity for hearing as set Ensenada, Baja California (assign. 500w ...... ND Ii ment of call letters). forth in'Paragraph IV hereof at 10 h. m. 'dEEII..... 1500 kilocycles on the 2d day of August 1956 at the main 956 office of the Securities and Exchange 2speranza, Sonora (new) ...... 250 w ...... ND II Commission, located at425 Second Street 1540 kilocydes NW., Washington 25, D. C., before a EllOrullo,.Tallsco (assignment of call 500W ...... ND' 95 Hearing Examiner to be designated by letters). the Commission. At such time the Hear- 1560 kilocycles II-D ing Room Clerk in Room 193, North IdECA .... Tonanzintla Puebla (assignment of 250 w D/l0 w N .... ND IV- - Building, will advise the parties and the call lotters5. 1590.kilocycles Hearing Examiner as to the room in IV which such hearing will be held. The Atqmajac,letters), Xalisco (assignment of call 250 w D/125 w N .... ND 'dERDO.... I. ,Commission will consider any motion Mcxlicali, Baja California (assign. 5kw ...... ND with respect to a change of place of said ment of call letters). hearing if said motion is filed with the Secretary of the Commission on or before FEDERAL COMMUNICATIONS COMMISSION, -July 26, 1956. Upon completion of any [sAL] MARY JARE MORRIS, such hearing in this matter the Hearing Secretary. Examiner shall prepare a recommended iF. R. Doc. 56-5321; Filed, July 3, 1956; 8:54 a. in.] 3 Flled as part of the original document.

104 (111 of 135)

Wednesday, July Case: 4, 1956 18-55682, 10/31/2018,FEDERAL ID: REGISTER11068173, " DktEntry: 24-2, Page 107 -of 1244981

decision pursuant to Rue JX of the rules necessary and appropriate in the public IFnle No. 812-1013] of practice unless such decision is waived. interest and for the protection of inves- DREXEL & CO. ET AL. It is furtler ordered, That in the tors that proceedings be instituted to event registrant does not appear per- determine: NOTICE OF APPLICATION'FOR ORDER EXEMPT- sonally or through a representative at (a) Whether the statement referred ING ACCEPTANCE OF FEES BY AFFILIATED the time and place herein set or as other- to in Paragraph 11 hereof is true; PERSON6 0F AN INVESTMENT COMPANY. wise-ordered, the Hearing Room Clerk (b) Whether registrant has wilfully JuNE 28, 1956. shall file with the Records Officer'of the violated section 17 (a) of the Securities In the matter of Drexel & Co., -Phillip Commission a written statement to that Exchange Act of 1934 and Rule X-17A-5 Securities C6rporation effect and thereupon the Commission A. Roth, Baldwin adopted under said section; and General Industrial Enterprises, inc., wil take the record under advisement (c) Whether, pursuant to section 15 File No. 812-1013, for decision. (b) of the Securities Exchange Act- of Notice is hereby given that Baldwin This order and notIce shall be served 1934, It is in thd public interest to revoke Securities Corporation ("Baldwi"), a. on registrant personally or by registered registration of registrant; and closed-end, non-diversified investment mail forthwith, and published in the (d) Whether, pursuant to section 15 company registered under the Invest- FEDERAL REGSTER not later than fifteen Cb) of the Securities Exchange Act of (15) days 1934, ment Company Act of 1940 ("act") and prior to August 2, 1956. pending final determination, It is General Industrial Enterprises,- Inc. In the absence of an appropriate necessary or appropriate in the public (formerly The Midvale Company and waiver, no officer or employee of the Interest or for the protection of inves- hekein designated "General"), a com- Commission engaged in the performance tors to suspend the registration of regis- pany controlled by Baldwin, Phillip A. ofinvestigative or prosecuting functions ,trant. Roth, an affiliated person of Baldwin and in this or any factually related proceed- V. It is ordered, That registrant be General, and Drexel,& Co. '"Drexel"), an, ing will be permitted to'participate or given an opportunity for hearing as set advise forth in affillated person of an affited person in the decision upon the matter, Paragraph IV hereof at 10 a. in., of Baldwin and General, have- filed an except as witness or counsel in proceed- on the 2d day of August 1956 at the ings held main office application pursuant to section: 6 (c) of pursuant to notice. , Since this of the Securities and Ex- the act for an order of the Commission proceeding is not "unle making" within changeCommission, located at 425 Sec- ond exempting from the provisions of iection the meaiing of section 4 (c) "of the Ad- Street NW., Washington 25, D. C., 17 (e) (1) of the act, the receipt by Roth ministrative Procedure Act, It is not before a Hearing Examiner to be desig- deemed nated by the Commission. and Drexel of a commis~ion in connec- to be subject to the provisions At slch time tion with the sale by General of certain of the section delaying the effective date the Hearing Room Clerk in Room 193, of its assets. ' - . I of any fihial Commission action. North Building, will advise the parties . Baldwin owns 62 percent of the out- By the Commission. and the Hearing Examiner as to the room in which standing stock of General. General such hearing will be held. The therefore is a controlled- company of [sEAL] ORVAL L. DuBoIs, Commission will consider any motion. Baldwin. - - I _ Secretary. with respect to a change of place of said " On hearing if said motion August' 25, 1955, the Board of Di- 1P. R. DOc. 56-5285; Filed, July 3, 1950; is ffiled' with the rectors of General adopted a resolution 8:47 a. m. Secretary of the Commission on or before July authorizing Roth and Drexel to conduct 25, 1956. Upon completion 'negotiations on behlf of General with of any such hearing in this matter the Hearing one or more prospective purchasers look-' Examiner shall prepmre a rec- ing toward a sale by General of its oper- A DnEw SrEwAT MrssxcK & Co. ommended decision pursuant to Rule IX ating assets.- of the rules of practice unless such The services on behalf of ORDER de- FOR PROCEEDINGS AND NOTICE OP cision is waived. Drexel were to be performed by Edward HEARING Hopkinson, Jr., a partner in the Drexel - It is furtler ordered,That in the event firm, who alsb was and is a director and- In the matter of Andrew Stewart Mes- registrant does not appear personally or through officer of both Baldwin and General. sick &Co., 308 Cotton Exchange Building, a representative at the time and Since May 7, 1953, Roth has been a di- New Orleans, La. place herein set or as otherwise ordered, rector of Baldwin and since March 7, At a regular session of the Securities the Hearing Room Clerk shall file with 1956, and Exchange Commission held the Records an officer of Baldwin, and since. at Its Officer of the Commission June 25, 1953, a director of General and office in the city of Washington, D. C., a written statement to that effect and since April 3, 1956, an officer of General. on the 28th day of June 1956. thereupon the Commission will take the Roth is therefore an affiliated person of I. The Commission's public official files record under advisement f6r decision. digclose that This order and Baldwin ind General and Drexel is an Andrew Stewart Messick & notice shall be served affiliated' personof an affiliated person Co., a partnership, hereinafter referred on registrant personally or by registered of mall forthwith, Baldwin and General within the terms to as registrant is registered as a broker- and 'published in the of seetfon 2 -(a) (3) of'the act. - dealer pursuant to section FEDERAL REGISTER 15 (b) of the not later than fifteen Both before and subsequent to the res- Securities Exchange Act of 1934. (15) days prior to August 2, 1956. olution datbd IL In the absence of an appropriate August 25,1955, Roth and. The Records Officer of the Commis- Hopkinson conducted negotiations with sion has filed with the Commission a waiver, nd0ofllcer or employee of the several statement, a copy of Commission prospective purchasers and these which is attached engaged in the 35-rformance negotiations culminated in hereto and made a part hereof,' stating of investigative or prosecuting functions a sale on De- that registrant did not file with the Com- in this cember 30, 1955, by General of all its or any factually related proceed- operating mission reports of his 1fliancal condi- Ing will be permitted to participate or assets to Midvale-Heppenstall tion during Company for a base considerationof the calendar year 1955 as advise in the decision upon the matter $6,100,000. required by section 17 (a) except as witness or counsel in of the Securi- proceed- On March 7, 1956, ties Exchange Act of 1934 and Rule ings held pursuant to notice. Since this a disinterested ma- X-17A-5 adopted thereunder. proceeding s not "rule making" within jority of the Bard of Directors of Gen-- 111 The Information eral adopted a resolution authorizing, reported to the the meaning of section 4 (c) of the Ad- subject Commission by its Records ministrative Procedure to the granting -of the' instant Officer as set Act, It is not application, the forth in Paragraph II hereof tends, if deemed to be subject to the provisions pa iment by General to true, to show that registrant violated of Roth and Drexel of $75,000 each for the the section delaying the effective date services performed. section 17 (a) of the Securities Exchange of any final CommLison action. Act of 1934 and Rule X-17A-5 adopted The receipt by an affiliated person of" under said section. By the Commission. " a registered investment company or by IV. The Commission, having consid- [sr.] ORVAL V. DuBors, an affiliated person of such a person of ered the aforesaid information, deems it - Secretary. any compensation for the sale of property for such investment company is pro- 27iled as- part of the original documeit. IF. I. Doc. 58-5286; Piled, July. 3, 1956; hibited -by section 17 (e) (1) of the 8:48 a. m.] act unless an exemption therefrom is

105 (112 of 135) 4982 Case: 18-55682, 10/31/2018, ID:NOTICES 11068173, DktEntry: 24-2, Page 108 of 124 granted by the Commission pursuant to Hevi-Duty having submitted the pro- Inc., File No.- 24Y-3458; Charles D. section 6 (e) of the act. posed membership of its board of direc- Adams and Joseph H. Neebe as "The All interested persons are referred to tors and the board of directors of Anchor- Friendly Persuasion Company," File No. said application which is on fild at the to this Commission as follows:. 24NY-3460; Air Research and Explora- Washington, D. C., office of this Com Directors of Hevl-Duty: I. E. Koch, L. B. tion, Inc., File No. 24NY-3480; Verschoor mission for a more detailed statement Lattin, G. W. Armstrong.-Carl L. A. Beckers, and Davis, Inc., File No. 24NY-3489. of the matters of fact and law therein John N. Worcester. Deal Shore Estates Association, Sec- asserted. Directors of Anchor: G. W. Armstrong, tion II, Charms Building, Asbury Park, Notice is further given that an order K. H. Foskett, H. E. Koch, Carl L. A. Beckers, New Jersey; Acryvin Corporation of granting the application may be issued John N. Worcester. America, Inc., 464-72 East 99th Street, by the Commission at any time after Hevi-Duty and Union Electric having Brooklyn 12, New York for Nash S. Eld- July 16, 1956, unless prior thereto a hear- also notified this Commission that they ridge as selling stockholder, 302 West Ing on the application is ordered by the will consent to the inclusion in an order' 12th Street, New York City, New York; Commission as provided in Rule N-5 of of the Commission, in connection with Segal Lock & Hardware Company,.Inc., the rules and regulations promulgated the approval of the proposed boards of 395 Broadway, New York City, New York; under the act. Any interested person directors of Hevi-Duty and Anchor, of a National Foods Corporation, 131 Dahlem may, not later than July 16, 1956, at condition that (1) at the next annual Street, Pittsburgh, Pennsylvania for 5:30 p.m., submit In writing to the Com- meeting of the stockholders of Hevi- Weber-Milligan Co. as selling stock- mission his views or any additional facts Duty, in the spring of 1957, Hevi-Duty holder, 50 Broadway, New York 4, New bearing upon the application or the de- shall submit to its stockholders-a charter York; Oil Finance Corporation, 217 Hick- sirability of a hearing thereon or request amendment to increase the number of ory Street, Warren, Pennsylvania for An- the Commission, in writing, t.hat a hear- its directors so that a majority of such derson Oil Company as selling stock- ing be held thereon. Any such communi- directors shall be persons who shall be holder, Warren, Pennsylvania; Marco cation or request should be addressed: neither officers nor employees of either Industries, Inc., 786 Terrace Blvd., Secretary, Securities and Exchange Com- Hevi-Duty or Anchor; and (2) the names Depew, New York; Charles D. Adams, 26 mission, Washington 25, D. C., and of iominees for such additional directors East 92d Street, New York City, New Should state briefly the nature of the shall be submitted to this Commission York and Joseph H. Neebe, 430 East 63d interest of the person submitting such for approval; and Street, New York City, New York, as "The Information or-requesting a hearing, the The Commission having examined the Friendly Persuasion Company"; Air Re- reasons for such request, and the issues proposed membership of the boards of search "& Exploration, Inc., 458-57th of fact or law raised by the application directors of Hevi-Duty and Anchor and Street, Brooklyn, New York; Verschoor which he desires to controvert. finding that no adverse action ieed be and Davis, Inc., 550 Fifth Avenue, New By the Commission. taken with respect to such boards; and York City, New York, having each filed it appearing to the Commission in the with the Commission a notification on [SEAL] ORVAL L. DuBois, public interest that Hevi-Duty should Form 1-A relating to a proposed public Secretary. increase its board of directors and sub- offering of securities for the purpose of [. U. Doc. 56-5287; Filed, July 3, 1950; mit its nominees thereto to this Com- obtaining -an exemption from the regis- 8:48 a. m.1 mission for its approval; tration requirements of the Securities It is ordered, That the proposed mem- Act of 1933, as amended, pursuant to bership of the boards of directors of the provisions of section 3 (b) thereof Hevi-Dut§ and Anchor be, and hereby is, and Regulation A promulgated there- [File No.70-3405] approved. under; and UNItoN ELECTRIC COMPANY OF MISSOURI It is ordered, That (1) at the next The Commission having been advised AND HEVI-DUTY ELECTRIC CO. annual meeting of its stockholders, Hevi- that the- terms and conditions of said Duty shall submit to its stockholders a Regulation A have not been complied SUPPLEMTENTAL ORDER RELATING TO charter amendment to increase the num- with in that each issuer has failed to file DIRECTORS ber of its board of directors so that a on Form 2-A reports of sales as required JUNE28, 1956. majority of such directors shall be per- by Rule 224 of Regulation A and has Ig- sons whoshall be neither officers nor nored requests by the Commission's staff Union Electric Company of Missouri employees of either Hevi-Duty or An- for such reports. - ("Union Electric"), a registered holding chor; and (2) the names of nominees for It is ordered, Pursuant to Ruli 223 (a) company, and Hevl-Duty Electric Com- such additional directors shall be sub- of the general rules and regulations pany ("Hevi-Duty"), a wholly owned mitted to this Commission for approval. non-utility subsidiary compank of Union under the Securities Act of 1933 that the By the Commission. exemption under Regulation A be, and Electric, hpiving filed an application and it hereby is, temporarily suspended In declarations with this Commission pur- ESEAL] ORVAL L. DuBois, each instance. suant to sections'6 (a) (1), 6 (a) (2), 7, Secretary. 9 (a) (1), 10, 12 (c), and 12 (f) of the Notice is hereby given Ahat any per- Public Utility Holding Company Act of IF. R. Doc. 56-5288; Filed, July 3, 1956; son having any interest in the matter 1935 ("act") and Rules U-42, U-43, and 8:48 a. m.] with respect to any aforesaid company U-40 promulgated thereunder, proposing, or companies may file with the Secretary among other things, the distribution by of the CommissioA a written request for Union a hearing; that, within 20 days after re- Electric to its stockholders of the [File No. 24NY-3357 etc.] common stock of Hevi-Duty and thereby ceipt of such request, the Commission will, or at any time upon its own motion divesting itself of its interest in Hevi- DEAL SHORE ESTATES ASSOCIATION, Duty as heretofore directed by this Com- SECTION II ET AL. may, set the matter down for hearing at mission (Holding Company Act Release a place to be designated by the Commis- No. 11530 (October 31, 1952)); and ORDER TEMPORARILY SUSPENDING EXEmP- sion for the' purpose ,of determining The Commission, in granting and per- TION, STATEMENT OF REASONS THEREFOR, whetherthis order of suspension should mitting to become effective the afore- AND NOTICE OF OPPORTUNITY FOR HEAR- be vacated or made permanent for any mentioned application and declarations INGI such company, without prejudice, how- (Holding Company Act Release No. JuNE 28, 1956. ever, to the consideration and presenta- 13170 (May 4, 1956)), having ordered In the matter of Deal Shore Estates tion of additional matters at the hear- that, promptly after tht distribution by Association, Section: II, File No. 24NY- ing; and that notice of the time and Union Electric of the Hevi-Duty com- 3357; Acryvin Corporation of America, place for said hearing will be promptly mon stock, ,the names of the proposed Inc., Nash S. ,Eldridge, File No. 24NY- given by the Commission. membership of the boards of directors of 3367- Segal Lock & Hardware Company, By the Commission. Hevi-Duty and of Anchor Manufactur- Inc., File No. 24NY-3429, File No. 24NY- ing Company ("Anchor"), Hevl-Duty's 3468; National Foods Corporation, Web- [SEAL]) ORVAL L. DuBois,- - Secretary., wholly owned non-utility subsidiary, er-Milligan Co., File No. 24NY-3440; Oil should be submitted to this Commission Finance Corp., Anderson Oil Company, [F. R. Dc. 56-5289; Filed, July 3, 1956; for Its approval; and File No.,24NY-3442; Marco Industries, 8:48 a. n.]

106 (113 of 135) Wednesday, July Case: 4, 1956 18-55682, 10/31/2018,FEDERAL ID: REGISTER 11068173, DktEntry: 24-2, Page 109 of 1244983 [File No. 70-3483] At Mfarch 31, 1956, Michigan Wiscon- [File No. 70-34] MIcHcN WIScoNsIN PIPE Lnr Co. sin had outstanding $14,000,000 of notes SOUTHERN ELECTRIC GERATINa Co. ET AL. to banks due July 1,1956, Issued pursuant ORDER GRANTING APPLICATION REGARDIRG to a Credit Agreement dated. June 17, ORDER GRANTING APPLICATION AND PERMIT- ISSUANCE OF SHORT-TERM XOTE4 TO BANKS 1955. The first borrowing under the TING EFFECTIVENESS TO DECLARATION RE- GARDING ISSUE AND SALE JUNE 28, 1956. proposed Credit Agreement will be on OF COMMON July 1, 1956, and the company will apply STOCK BY SUBSIDIARIES AND ACQUISITION 2aichigan Wisconsin Pipe Line Com- the proceeds therefrom, to the extent re- THEREOF BY PARENT; ISSUE AND SALE OF pany (' ichigan Wisconsin"), a non- quired, to the retirement of notes issued COMMON STOCK BYNEW GENERATING COM- utility subsidiary of American Natural and then outstanding under the 1955 PANY AND ACQUISITION THEREOF BY AS- Gas Company, a registered holding com- Credit Agreement. SOCIATE UTILITY COMPANIES; AND PAY- pany. has fled an application and an The proposed borrowings will provide WENT OF DEBT OF SUBSIDIARY OWING TO amendment thereto with this Commis- Mchigan Wisconsin -with funds for the P'ARENT - sion pursuant to the third sentence of construction of additional facilities, the JuN-z28,1956- section 6 (b) of the Public Utility Hold- cost of which, together with normal con- ing Company Act of 1935 ("act") re- In the matter of Southern Electric struction, Is estimated to be approxi- Generating Company, Alabama Power garding certain proposed transactions mately $12,500,000. Thus, a total of which are summarized as follows: Company, Georgia Power Company, AMa- about $26,500,000 is required to finance bama Property Company, The Southern Michigan Wisconsin proposes to enter construction this year and retire the into a Credit Agreement providing for Company; File No. 70-3480. presently outstanding bank loans. The Southern Company ("Southern"), the borrowing from banks at one or more The notes to be Issued under the pro- times subsequent to June 30, 1956, of up a registered holding company and four posed Credit Agreement will be retired of its subsidiaries, Alabama Power Com- to $25,000,000 on notes maturing Jan- from proceeds of the issue and sale, pur- uary 1, 19517 The names of the banks pany ("Alabama"), Georgia Power Com- suant to the competitive bidding require- pany ("Georgia"), Southern Electric and their respectLve commitments are ments of Rule U-50. ofo$25,000,000 prin- Generating Company' ("SEGCO") a as follows: cipal amount of First MortgageBonds, Am'ount of - newly organized company, and Alabama N ame of bank commitment ._ Percent Series due 1976, as to which Property Company .('Troperty Com- an application is now pending before - theFIrst National City Bank of pany"), having filed a joint application- New yor ..... $7,000, 000 this Commission (File No. 70-3488). To and amendments thereto, provide sufflilcient time to carry out the declaration The Hanover Bank, NewYork.._ 7,000,000 pursuant to sections 6 (b), 9 (a),-10, and Mellon National Bank & %YinS bond financing and obtain adequate pro- 12 (f) of the Public Utility Holding Com- Company, Pittsburgh, Pa.___ tection against unforeseeable contingen- 7,000.000 Act of 1935 ("act?') and Rule U-43 National Bank of Detroit .... 4,000.000 cies, the company desires, In Its present pany regarding the applioation, to have authorization to promulgated thereunder Total 25, 00, 000 following proposed transactions: execute the proposed Credit Agreement Alabama and Georgia will each issue The Credit Agreement will commit the for a period of six months, with the right of the company at its option and and sell 10,000 shares of their common banks to lend to the company from time stock, withou par value, and Southern to time, on and after July 1, 1956, sums with the approval of the Commission, will acquire such stocks at $100' per to renew the notes for a period of six aggregating a maximum of $25,000,000 share, or an aggregate consideration of and will provide that the company shall months beyond January 1, 1957. The fees, commissions and other re- $2,000,000. SEGCO will issue and-sell pay.a stand-by charge calculated at the 20,000 shares of its capital stock $100 par rate of one-fourth of one percent per an- muneration to be paid by the company in connection with the proposed trans- value, and Alabama aad: Georgia will num on the average daily unused balance each acquire 10,000 shares of such stock - of the commitment from July 1,1956, un- action are estimated by Michigan Wis- consin as follows: at par, or an aggregate consideration of tl the entire $25,000,000 shall have been $2,000,000. taken down or the Agreement termi- Sidley, Austin, Burgess & Smith, legal fees ..... ------$1,0001 SEGCO will apply the proc~eds-of the nates, whichever is earlier. The com- sale of its shares, to the extent neces- pany may reduce the amount of American Natural Gns Service Co., the services at cost------500 sary, to purchase from Property Com- .commitment at any tinie without Miscellaneous telephone, telegraph, pany, a direct subsidiary of, Alabama, penalty. duplicating, traveling and other ex- certain coal reserves and one or more The notes issued pursuant to the pences and contingency fund ----- 500 sites , for a steam electric. generating-, Credit Agreement will mature January plant located -in the State of Alabama 1, 1957. and will bear interest at the Total ------2,000 and reimburse Property Company for its prime rate prevailing at the First Na- No State commission and no Federal expenses theretofore incurred- in test tional City Bank of New York for com- commission other than this Commission drilling. The amount to be paid to mercial loans on the date of each bor- has Jurisdiction over the iproposed Property Company will be limited to the rowing. The company will have the transactions. costs incurred, which it is estimated will. right to prepay at any time without Due notice having been given of the -approximate $500,000. The balance of penalty, in amounts of $1,000,000 or mul- filing of the application and a hearing the proceeds will be used by SEGCO to tiples thereof, notes so Issued, except that not having been requested of or ordered complete the acquisition of coal.reserves a prepayment penalty of one-fourth of by the Commissibn; and the Commis- and plant sites and to pay for any neces- one per cent per annum for the unex- sion finding that the applicable provi- nary test drillings and other expendiZ pired terms of the notes will apply in visions of the act and rules promulgated tures incident to commencement of con- case of prepayment from the proceeds thereunder are satisfied, and It appear- struction of a steam electric generating of borrowings from banks other than Ing to the Commission that the estimated plant. - thoseparticlpating In the Credit Agree- fees and expenses are not unreasonable, Property Company -proposes to apply ment. provided they do not exceed the amounts the amount obtalned from SEGCO in- Mfichigan Wisconsin will covenant in estimated, and that the application satisfaction of an open account advance "the ,Credit Agreement, among other should be granted: previously made by Southern. things, that It will not without prior con- It .is ordereff, Pursuant to Rule U-23 The Georgia Public Service Commis- sent of the banks pay dividends on its and the applicable provisions of said common stock in excess of the amount sion has authorized the proposed issu- act, that said application be, and the by Geor- permitted by the company's Mortgage same hereby Is, granted forthwith, sub- ance and sale of common stock and Deed of Trust; incur other borrow- ject to the terms and- conditions pre- gia and the Alabama Public Service ings unless subordinated to the notes scribed in Rule U-24. Commission has authorized the issuance issued under the Credit Agreement and sale of common stock by Alabama ex- By the Commission. cept first mortgage bonds issued under -and SEGCO. said mortgage or any mortgage indenture [sEAL] ORVAL I. DUBOIS, The folfowing estimated fees, commis- supplementing or replacing the same; or . 2Secretary. sions and expenses are to be incurred ih merge or consolidate with or into any. [P. X, Doe. 56-5290; Piled, July 3, 1956; connection with the proposed transac- other company. 8:49 a. m.] tions:.

107 (114 of 135) 4984 Case: 18-55682, 10/31/2018,11 ID:NOTICES 11068173, --- DktEntry: 24-2, Page 110 of 124

interested person not a -protestant, de- Alabama Georgia SEGCO Highway 3ONto Payette, and return over siring to receive notice of the time and the same route, serving all intermediate place of any hearing, pro-hearing con- points; )7ederal original Issue (8) between Welser, Idaho, and tax ...... $375 $320 $2,200 ference, tasting of depositions, or other Ontario, Oregon: From Weiser over U. S.' SttO charter fees ...... s...... 2,000 proceeding shall notify the Commission Highway 30N to Legal fees and expenses ------10, 400 junction ;with U. S. ,llsellaneu ...... s 500 . 500 2,500 by letter or telegram within 30 days of- Highway 30, thence over U. S. Highway publication of this notice in the FEDERAL 30 to Ontario, and return over the same To ...... s75 820 17,100 REGISTER. Except when circumstances route, serving all intermediate points; require immediate action, an application (9) between Payette, Idaho, and junc- Notice of the filing of the application- for approval, under section 210a (b) ,of tion Oregon Highway 90 and U. S. High- declaration having been duly given in the act, of the temporary operations of way 30 (near Payette, Idaho): from the manner prescribed by Rule U-23 Motor Carrier properties sought to be Payette over Idaho Highway 52 to the promulgated under the act, and no hear- acquired in an application under Section Idaho-Oregon State line near Payette, Ing having been requested of or ordered 5 (2) will not be disposed of sooner than thence over Oregon Highway 90 to junc- by the Commission; and 10 days from the date of publication tion with U. S. Highway 30 near Payette, It appearing that the fees and expenses of this notice in the FEDERAL REGISTER. and return over the same route, serving to be incurred in connection with the If a protest is received prior to action all intermediate points. Applicant is proposed transactions are not un-eason- being taken, it will be considered. authorized to conduct operations In able if they do not exceed the estimates APPLICATIONS OF IOTOR CARRIERS OF I d a h o, Montana, California, Utah, set forth above; and the Commission ob- PROPERTY Oregon, Nevada, Colorado, and New serving no basis for adverse findings, or Mexico. . No. for the imposition of terms and condi- No. MC 263 Sub 83, filedsJune 4, 1956, MC 891 Sub , filed June 18, 1956, " tions, and finding that the applicable GARRETT FREIGHTLINES, INC., 2055 GERARD MOTOR, EXPRESS, INC., 10 provisions of the act, and of the rules Pole Line Road, Pocatello, Idaho. Ap- Cherry Street, Terre Haute, Ind. Appli- thereunder are satisfied, and deeming it plicant's attorney: Maurice H. Greene,, cant's attorney: Ferdinand Born, 708 appropriate in the public interest and the P. 0. BQx 1554, Boise, Idaho. For au- Chamber of Commerce Building, Indian- interest of investors and consumers that thority to operate as a common carrier, apolis 4, Ind. For authority to operate as the application-declaration, as amended, over regular routes, transporting: Gen- a common carrier,transporting: General should be granted and permitted to be- eral commodities, except those of un- commodities, except those of unusual come effective forthwith: usual value, Class A and B explosives, value, Class A and B explosives, livestock, It is ordered, Pursuant to Rule U-23 household goods as defined by the Com- household goods as defined by the Com- and the applicable provisions of the act, mission, commodities in bulk and those mission, commodities in bulk, and those that the application-declaration, as requiring special equipment, (1) between requiring special equipment, serving the amended, be, and it hereby is, granted junction U. S. Highway 20 and Oregon site of the Warrick Works of the Alumi- and permitted to become effective forth- Highway 201 (near Ontario, Oreg.) and num Company of America plant, located with, subject to the terms and conditions junction U. S. Highway 95 and Idaho in Warrick County, Ind., near Newburgh, contained in Rule U-24. Highway 72 (near Marsing, Idaho): Ind., approximately ten (10) miles from from junction U. S. Highway 20 and Evansville, By the Commission. Ind., as an off-route point in Oregon Highway 201 (near Ontario) connection with applicant's regular route [SEAL] ORVAL L. DuBoxs, over U. S. Highway 20 to Parma, Idaho, operations to and from Evansville, -Ind. Secretary. thence over U. S. Highway 95 to junction Applicant is authorized to conduct oper- IF, I, Doe. Flied, U. S. Highway 95 and Idaho Highway ations in Illinois and Indiana. 56-5291; July 3, 1956; 72 (near Marsing), 8:49 a. m.] and return over the No. MC 936 Sub 25, filed June 4, 1956,. same route, serving all intermediate VALLEY MOTOR LINES, INC.,_ 2470 - points; (2) between Nyssa, Oreg., and South Cherry Avenue, Fresno; Calif: For INTERSTATE COMMERCE 'Homedale, Idaho: from, Nyssa over authority to operate as a common car- Oregon Highway 201 to the Idaho- rier, over regular and irregular routes, COMMISSION Oregon State line, thence over Idaho [Notice No. 119] transporting: General commodities, ex- Highway 19 to Homedale, and return cept those of unusual value, Class A and over the same route, serving all inter- MOTOR CARRIER APPLICATIONS B explosives, household goods as defined mediate points; (3) between Parma, by the Commission, commodities in bulk, Juft 29, 1956. Idaho, and Caldwell, Idaho: from Parma and commodities requiring special equip- Protests consisting of an original and over U. S. Highway 20 to Caldwell, and ment, (1) between Oakdale, Calif. and tWo copies to the granting of an appli- return over the same route, serving all Donnells Dam Site, Calif., from Oakdale cation must be filed with the Commis- intermediate points; (4) between junc- over California Highway 120 to Yosemite sion within 30 days from the date of tion U. St Highway 95 and Idaho High- Junction, thence over California High- publication of this notice in the FEDIRAL way 19 (near Wilder, Idaho), and way 108 to its junction with unnumbered REGIsTR and a copy of such protest Caldwqll, Idaho: from junction U. S. highway approximately twelve and one- served on the applicant. Each protest Highwgy 95 and Idaho Highway 19 near half (12 1/) miles east of Strawberry, must clearly state the name and street Wilder over Idaho Highway 19 to Cald- Calif., and thence over the unnumbered number, city'and street address of each well, and return over' the same route, highway to Donnells Dam Site, and re- protestant on behalf of whoffi the pro- serving all intermediate points; (5) be- turn over the same route, serving all in- test Is filed (49 CFR 1.240 and 1.241). tween Homedale, Idaho, and Caldwell, termediate points and the off-route points Failure to seasonably file a protest will Idaho, from Homedale over unnum- of Donnells Warehouse, Beardsley Dam be construed as a waiver of opposition bered county road to Caldwell, and re- Site, Pinecrest, Soulsbyville, Tuolumne, and participation in the~proceeding un- turn over the same route, serving all Standard, and Knights Ferry; (2) be- less an oral hearing is held. In addi- intermediate points; (6) between junc- tween intermediate and off-route points tion to other requirements of Rule 40 tion Idaho Highways 44 and 16 (near as outlined in (1) hereof; (3) between of the general rules of practice of the Star, Idaho) and junction Idaho High- the intermediate and off-route points Commission (39 CFR 1.40), protests shall way 52 and U. S. Highway 30 at Hamilton outlined in (1), on the one hand, and, Include a request for a public hearing, Corners (near New Plynouth, Idaho): on the other, points Valley Motor Lines, from junction Idaho Highways if one is desired, and shall notify with 44 and Inc. is authorized to serve. Applicant is particularity the facts, matters, and 16 near Star over Idaho Higfiway 16 to authorized to conduct operations in Call- things reledzupon, but shall not ifclude junction With Idaho Highway 52, thence fornia. . issues or allegations phrased generally. over Idaho Highway 52 to junction with No. MC 8948 Sub 35 (Second Amend- U. S. Highway 30 at Hamilton Corners Protests containing general allegations ment), published on Page 3706, issue of may be rejected. Requests for an oral near New Plymouth, and return over May 30, 1956, filed April 16, 1956, WEST- hearing must be supported by an ex- the same route, serving all intermediate ERN TRUCK LINES, LTD., 2835 Santa planation as to why the evidence cannot points; (7) between Weiser, Idaho, and Fe Avenue, Los Angeles 58, Calif. Ap- be submitted in forms of affidavits. Any Payette, Idaho: from Weiser over U. S. plicant's attorney: Lloyd R. Guerra, 2835

108 (115 of 135) Wednesday, July Case: 4, 1956 18-55682, 10/31/2018,FEDERAL ID: REGISTER11068173, DktEntry: 24-2, Page 111 of 1244985. Santa Fe Avenue, Los Angeles, Calif. For No. MC 30897 Sub 8, filed June 14,1956,, Memphis, Tenm. Applicant's attorney: authority to operate as.a common car- CONSOLIDATED FREIGHT COM- Charles H. Hudson, Jr., 407 Broadway rzer, transporting: Class A, B, and C ex- PANY, a Corporation, 100 Carroll Street, Bank Building, Nashville, Tenn. For au- plosives, ammunition, not included in Saginaw, Mich. Applicant's representa- thority to operate as a common carrier,, Class A, B, and C explosives, and compo- tive: Robert A. Sullivin, 2606 Guardian over irregular, routes, transporting: nent parts of Class A, B, and C explosives, Bulding,'Detrolt 26, Mich. For author- AutOmObiles, trucks, tractors, bodies, and of ammunition not included In Class Ity to operate as a common carrier,over cabs and chassis, and automobile. show A, B, and C explosives, between Phoenix, irregular routes, transporting: General- paraphernalia,'equipmeintand supplies, Ar , on the one hand, and, on the other, commodities, except those of unusual and parts and accessories at the same points in Arizona, California and Ne- value, Class A and B explosives, house- time and with the vehicle of whigh they vada, in connection with applicant's au- hold goods as defined by the Commission, are a part and on which they are to be thorized regular and irregular route commodities in bulk, and those requiring installed, in initial movements, in trck- operations in Certificate No. MC 8948 and special equipment, serving the site of the away and driveaway service, from points sub-inumbers thereunder, In the trans- Ford Motor Company (Sheet Metal in Jefferson County, Ky., to points, in portation of general commodities, with Stamping Plant) located at the inter- Arizona, California, Colorado, Connecti- exceptions. Applicant is authorized to section of Cottage Grove and U. S. High- cut, Delaware, District of Columbia, conduct operations in Texas, California, way 30 (Lincoln Highway) approxi- Idaho, Illinois, on. and north of U. S. Nevada and Arizona. mately two miles east of the incorporated Highway 24, Iowa, Kansas, Maifie, Mary- No.MATC 9895 Sub 85, filed June 16,1956, city limits of Chicago Heights in Cook land, Massachusetts, Michigan, Minne- R B. 'VICK" WI.SON, INC., P. 0. Box County, Ill., as an off-route point in con- sota, Montana, Nebraska, Nevada, New 838, Denver, Colo. Applicant's attorney: nection with carrier's regular route oper- Hampshire, New Jersey, New. Mexico, Marion F. Jones, Suite 526 Denham ations to and from Chicago, Ill., and the New York, North Dakota, Oklahoma, ex- Building, Denver 2, Colo. For authority Commercial Zone thereof. cept Moffett, Oregon, Pennsylvania, to operate as a common carrier,over ir- No. MC 31600 Sub 409, filed June 20, Rhode Island, South Dakota, Texas, ex- regular routes, transporting: Acids and, 1956, P. B. MITRIE MOTOR TRANS- cept Texarkana, Utah, Vermont, Wash- Chemicals, as described by the Commis- PORTATION, INC., Calvary Street, ington, Wisconsin, Wyoming and Ken.; sion, in bulk, in tank vehicles, between Waltham, Mass. For authority to oper-, tucky. Applicant is authorized to con- points in Wyoming, Colorado, Kansas, ate as a common carrier, over Irregular duct operations in Missouri, Tennessee, Nebraska, Utah, and those in that part of routes, transporting: Aviation fuel, in Arkansas, Mississippi, Kentucky, Louisi- South Dakota west of a line beginning at bulk, in tank vehicles, moving on Gov- ana, Alabama, Oklahoma, Texas, Vir- the North Dakota-South Dakota State ernment bills-of-lading, from Melville ginia, West Virginia, Ohio, Indiana, line and extending along the eastern and East Providence, R. I., to West Georgia, Florida, "North Carolina, South boundaries of Perkins, Meade, Penning- Trenton, N. J. Applicant is authorized Carolina, and Illinois. ton, Washabough, and Shannon Coun- to conduct operations in Connecticut, No. MC 48974 Sub. 1, filed Mdarch 16,. ties, S. Dak, Maine, Massachusetts, New Hampshire, 1956, A. L. JOHNSON, doing business as- No. M C 15808 Sub 18, filed June 14, 2lew Jersey, Rhode Island and Vermont. JOHNSON MOTOR FREIGHT, 589 Van 1956, GIRTON BROS., INC., P. 0. Box No. MC 31600 Sub 410, filed June 20, Buran Avenue, Barberton; Ohio. Appli- 341 (U. S. 40 East), Brazil, Ind. Appli- 1956, P. B. MUTRIE MOTOR TRANS- cant's attorney: Herbert Baker, 50 West cants attorney: Louis E. Smith, Suite PORTATION, INC., Calvary Street, Broad Street, Columbus 15, Ohio. For 503,1800 North Meridian Street, Indian- Waltham, Mass.- For authority to op- authority to operate as a common car- apolis 2, Ind. For authority to operate erate as a common carrier,over irregular tir, over irregular routes, transporting: as a contract carrier, over irregular routes, transporting: Gelva emulsion, in -ompressed gasses (including move- routei, transporting: Petroleum and bulk, in tank vehicles, from Springfield, ments in special trailers of the shipper petroleum products, In bulk, in tank ve- Mass., to Branchville, Md. Applicant is or otherwise), from Euclid and Barber- hicles, from the site of the Socony-Mobile- authorized to conduct operations in ton, Ohio, to points in Allegheny, Beaver, Oil C6mpany pipeline terminal near new Connecticut, Maine, Massachusetts, New Washington and Westmoreland Counties, U. S. Highway 150 north of New Goshen, Hampshire, New York, Rhode Island and Pa.,.and empty containers or other sucli Vigo County, Ind., to points in Illinois. Vermont. incidental facilities (not specified) used Applicant is authorized to conduct opera- No. MC 37620 Sub 9, filed June 14, in transporting theabove-specified com- tions in Illinois, Indiana and Missouri. 1956, FREIGHTWAY CORPORATION, modities, on return. - No. MC 29566 Sub 43, filed June 13, 131 Matzinger Road, Toledo, Ohio. Ap- No. MC 50069 Sub 175, filed June 20, 1956, SOUTHWEST FREIGHT LINES, plicant's attorney: Ralph W. Sanborn, 1956, REFINERS TRANSPORT-& TR- INC., 1415 Commerce Building, Kansas Society for Savings Building, Cleveland MINAL CORPORATION, 2111 Woodward City, Mo. For authority to operate as 14, Ohio. For authority to operate as a Avenue, Detroit 1, Mich., For authority a common carrier,over regular routes, contract carrier, over Irregular routes, to operate as a cofnmon carrier, over transporting: General commodities, ex- transporting: Sugar, in containers, and irregular routes, transporting: Liquid cept those of unusual value, Class A and in bulk, and liquid sugar, in tank ve- chemicals -and acids, in bulk, in tank B explosives, household goods as defined hicles, from Findlay, Fremont and To- vehicles, and dry chemicals and acids, by the Commission, commodities in ledo, Ohio, to points in that part of the in bulk, from Chicago Heights, Ill., to bulk, commodities requiring special Southern Peninsula of Michigan on and points in Indiana, Iowa, Kentucky, Mich- equipment and those injurious or con- south of a line commencing at the west- igan, .Minnesota, Nebraska, Ohio and taminating to other lading, (1) between ern terminus of Michigan Highway- 46 -Wisconsin. St. Louis, Mo., and Weldon Springs, Mo., in Muskegon, thence over Michigan No. MC 50069 Sub 176, filed June 20, over combined U. S. Highways 40 and Highway 46 to Michigan Highway 37, 1956, REFINERS TRANSFER &TERMI- 61; (2) between St. Charles, Mo., and thence over Michigan Highway 37 to NAL CORPORATION,. 2111.Woodward Weldon Springs, Mo., over Missouri Michigan Highway 57 to Michigan High- Avenue, Detroit 1, Mich. For authority Highway 94; (3) between Wentzvllle, way 15. thence over Michigan Highway to operate as a common carrier,over ir- Mo., and Weldon Springs, Mo., over 15, to Michigan Highway 21, thence over regular routes, transporting: Petroleum combined U. S. Highways 40 and 61, and Michigan Highway 21 to Port Huron, Products, from Mogadore, Ohio, to points return over the above specified routes, Mich., .and Efnpty containers or other in Jefferson.County', Ohio, and Brooke serving no intermediate points; and (4) such incidental facilities (not specified) County, W. Va. serving points within ten used in transporting the miles of Wel- commodities NoTE: Applicant states that service Is to don Springs as off-route points in con- specified in this application, on return. be limited to transportation of shipments nection with applicant's authorized Applicant Is authorized to conduct op- stopped in transit for partial delivery in both regular route operations between East erations in Indiana, Ohio, and Michigan. counties. St. Louis, IL, and Kansas City, Kans. No. MC 41635 Sub 31 (Amended) pub- Applicant is authorized to conduct opera- lished on page 4332, Issue of June 20, No. MC 52657 Sub 489, filed June 22, tions in Arkansas,. Colorado, Illinois, 1956, filed June 11, 1956, DEALERS 1956, ARCO AUTO CARRIERS, INC., Indiana, Iowa, Kansas, Missouri, Ne- TRANSPORT_ COMPANY, 1368 River- 91st Strdet and Perry Avenue,-Chicago braska, Oklahoma, and Wyoming. side Blvd., P. O. Box 2482, DeSoto Station, 20, 11. Applicant's representative: G.

109 (116 of 135) 4986 Case: 18-55682, 10/31/2018, NOTICESID: 11068173, DktEntry: 24-2, Page 112 of 124 W. Stephens, 121 West Doty Street, Mad- as an off-route point in connection with For authority to operate as a common ison, Wis. For authority to operate as a applicant's regular route operations as carrier, transporting: General com- common carrier, over irregular routes, authorized in MC 60785 Sub 4. Appli- modities, including Class A and B ex- transporting: Transit or truck mixers, cant is authorized to 6onduct operations plosives, but excluding articles of unusual and integral component parts thereof in New Y~rk, Pennsylvania, New Jersey, value, househo)d goods as defined by the when moving together with the mixers, Maryland, and Delaware. Commission, commodities in bulk, and from Bryan, Ohio and points within five NoTE: Applicant states that it is presently those requiring special equipment, serv- (5) miles of Bryan, to Los Angeles, Calif., authorized to serve Retsof, N. Y., under its ing the Glen Canyon Dam Site, located the District of Columbia, and points in irregular route authority but such authority approximately fifteen (15) miles up- Alabama, Arkansas, Connecticut, Dela- is subject to cancellation if and when Cer- stream from Marble Canyon, Ariz., near ware, Florida, Georgia, Illinois, Indiana, tificate in MC 60785 Sub 4 is issued. the Utah-Arizona State line, and, points Iowa, Kansas, Kentucky, Louisiana, No. MC 60868 Sub 8, filed June 22, within ten (10) miles thereof, and con- Maine, Maryland, Massachusetts, Michi- 1956; RUFFALO'S TRUCKING SERV- struction sites located at points on ac- gan, Minnesota, 'Mississippi, Missouri, ICE, INCORPORATED, East Union on cess roads thereto, as off-route points Montana, Nebraska, New Hampshire, Lyons Road, Newark, N. Y. For author- in connection with applicant's regular' New Jersey, New York, North Carolina, ity to operate as a common carrier,over route operations between Los Angeles, North Dakota, Ohio, Oklahoma, Penn- irregular rbutes, transporting: Kraut, in Calif., and Albuquerque, N. Mex. Appli- sylvania, Rhode Island, South Carolina, containers, and canned goods, from New- cant is authorized to conduct operations South Dakota, Tennessee, Texas, Ver- ark, N. Y., and points within 75 miles in Arizona, California, Colorado, Illinois, mont, Virginia, West Virginia, and Wis- of Newark, N. Y., to Easton, Williams- Iowa, Missouri, Nebraska, Nevada, New consin; truck cabs, (1) from Chicago, Ill., port, Milton, Sunbury, Harrisburg, Lan- Mexico, and Texas. - to Los Angeles, Calif., and Bryan, Ohio caster, Coatesville, Philadelphia, Wilkes- No. MC 76032 Sub 103, filed June 19, and points within five (5) miles of Bryan, Barre, Scranton, Pittston, Allentown, 1956, NAVAJO FREIGHT LINES, INC., and (2) from Bryan, Ohio and points Reading, York, Norristown, Bridgeport 381 South Broadway, Denver 9, Colo. within five (5) miles of Bryan, to Los and Primes, Pa. Applicant is authorized Applicant's attorney: 0. Russell Jones, Angeles, Calif. Applicant is authorized to conduct operations in New Jersey and- 54'/ San Francisco Street, Southwest to conduct operations throughout the New York and Pennsylvania. Corner Plaza, Santa Fe, N. Mex. For United States, No. MC 65451 Sub 15, fied June 18,- authority, to operate as a common car- No. MC 58923 Sub 24, filed March 19, 1956, ALABAM FREIGHT LINES, 546 rier,transporting: Generalcommodities, 1050 (Amended), published April 4- 1956, West Madison Street, Phoenix, Ariz. Ap- including Class A and B explosives, but on Page 2161, GEORGIA HIGHWAY plicant's attorney: James F. Haythorne- excluding articles of unusual value, live- EXPRESS, INC., 2090 Jdnesboro Road white, Phoenix National Bank Building, stock, household goods as defined by the SE,, Atlanta 15, Ga. For authority to Phoenix, Ariz. For authority to operate Commission, commodities in bulk, and operate as a common carrier, over regu- as a common carrier,over regular routes, those requiring special equipment (not lar routes, transporting: General com- transporting:- General commodities ex- including those requiring refrigeration), modities, except those of unusual value, cept those of unusual value, and except serving the site of the United States Class A and B explosives, household Class A and B explosives, household Air Force Academy, -located on the west goods as defined by the Commission, goods, as defined by the Commission, side of Combined U. S. Highways 85 and commbdities in blilk, and those requiring commodities in bulk, and commodities 87, near Husted, Colo., which lies about special equipment, (1) between Thomas- requiring special equipment, between sixty (60) miles south of Denver, Colo., ton, Ga,, and Americus, Ga., over U. S. Theba, Ariz., and the Painted Rock Dam and ten miles north of Colorado Springs, Highway 19, serving no intermediatei Site located on the Gila. River, near Colo., as-an off-route point in connection points, as an alternate route for operat- Theba, Ariz., from Theba approximately with applicant's regular route operations Ing convenience only in connection with three miles west on U. S. Highway 80, between Denver, Colo., and Albuquerque, applicant's regular route operations (a) thence in a northwesterly direction over N. Mex. Applicant is authorized to con- between Thomaston, Ga., via Atlanta, an unnumbered county highway approx- duct operations in Arizona, California, and Columbus, Ga., and (b) applicant's imately 27 miles to the site of the Colorado, Illinois, Iowa, Missouri, Ne- proposed regular route operations be- Painted Rock Dam, and return over the braska, Nevada; New Mexico, and Texas. tween Amerlcu , Ga., and Columbus, Ga., same route, serving no intermediate No. MC 80430 Sub 80, filed June 13, described in (3) below; (2) between Al- points. Applicant is authorized to con- 1956, GATEWAY TRANSPORTATION bany, Ga., and Thomasville, Ga., over duct operations in Arizona, New Mexico, CO., A Corporation, 2130-2150 South U, 8, Highway 19, serving all inter- and Texas. Avenue, La Crosse, Wis. Applicant's at- inediate points, and points within five No. MC 69236 Sub 7, filed June 15, torney: Joseph E. Ludden, P. 0. Box 851, (5) miles of Albany, Ga., as off-route 1956, SCHIEN TRUCK LINES, INC., La Crosse, Wis. For authority to oper- points; and (3) between Americus, Ga., 416 West Main Street, Sedalia, Mo. ate as a common carrier, over regular and Columbus, Ga., from Americus over Applicant's attorney: B.-W. La Tourette, routes, transporting: General commod- U, S, Highway 19 to Ellaville, Ga., thence 1230 Boatmen's Bank Building, St. Louis ities, except those of unusual value, Class over Georgia Highway 26 to junction 2, Me. For authority to operate as a A and B explosives,J ivestock, household 'Georgia Highway 103, thence over common carrier, transporting: General goods as defined by the Commission, Georgia Highway 103 to Columbus, and commodities, except those of unusual commodities in bulk, and those requiring return over the same route, serving all value, Class A and B explosives, house- special equipment, serving the site of intermediate points. Applicant is au- hold goods as defined by the Commission, the new Chrysler Corporation Stamping thorized to conduct operations In Ala- commodities in bulk, and commodities Plant at Twinsburg, in Summit County, bama, Georgia, and Tennessee. requiring special equipment, serving Ohio, as an off-route point in connection regular route operations Nor: This casq is directly related to MC-F points in Hickory County, Mo., except with carrier's 4220. Applicant states it proposes to tack WeaubleaU, Preston, Cross Timbers, between (1) Chicago, Ill., and Akron, the authority sought to Its present Authority. Hermitage, and Wheatland, Mo., as off- Ohio,- over Ohio Highway 8, (2) Cleve- route points in connection with appli- land, Ohio, and Youngstown, Ohio, over No. MC 60785 Sub 5, filed June 14, 1956, U. S. Highway 422, (3) Chicago, Ill., RODGERS MOTOR LINES, INC., Gilli- cant's authorized regular route operations between Warsaw, Mo. and Spring- and Youngstown, Ohio, over U. S. High- gan Street aid South Avexue, Scranton, ways 30 and 62, (4) Mansfield, Ohio, and Pa, Applicant's attorney: 'Robert H. field, Mo. over unnumbered highway and U. S. Highway 65. Applicant is author- Cleveland, Ohio, over U. S. Highway 42, Shertz, 811-19 Lewis Tower Building, 225 and (5) Bryan, Ohio and Youngstown, South 15th Street, Philadelphia' 2, Pa. ized to conduct operations in Missouri, Kansas, and Illinois. ,Ohio over U. S. Highway 224. For authority to operate as a commo No. MC 83881 Sub 1, filed May 21, 1956, carrier transporting: General commodi- No. MC 76032 Sub 102, fled June 14, ties, except those of unusual value, Class 1956, NAVAJO FREIGHT LINES, INC., VIRGIL A. ANDERSON, Centerville, S. A and 13 explosives, household goods as 381, South Broadway, Denver 9, Colo. Dak. Applicant's attorney: R. G. May, defined by the Commission, %commodi- Applicant's attorney: 0: Russell Jones, Security Bank Bldg., Sioiix Falls, S. Dak. ties in bulk, and commodities requiring 542 East San Francisco Street, South- For authority to operate as a common special equipment, serving Retsof, N. Y:, west Corner Plaza, Santa Fe, N. MeX. carrier, over irregular routes, transport-

110 (117 of 135) Wednesday, July Case: 4, 1956 18-55682, 10/31/2018,FEDERAL ID: REGISTER11068173, DktEntry: 24-2, Page 113 of 1244987-

ing: Farm machinery, farm machinery bodies, chtassis, and cabs; parts and ac- northwest to 1Hallstead, - Pa., thence parts-therefor and moving with and as' cessories of new automobiles, trucks, southwest to Tunkhannock, Pa., and an integral part thereof, and feed (ani- station wagons, busses, and ambulances, thence southeast to point of beginning, mal, poultry and livestock), from Sioux and of automobile, truck, station wagon, and points- in Maine, New Hampshire, City. Iowa, to Centerville, S. Dak. Dam- bus and ambulance bodies, chassis and Massachusetts, Coneticut, Rhode Is- aged shipments of the described com- cabs when accompanying shipments land, Vermont, Delaware, District of modities, on return. Applicant is au- thereof; new automobile, truck, station Columbia, Maryland, Virginia, West thorized to transport livestock, feed, wagon, bus and ambulance parts and-ac- Virginia, North Carolina, South Caxo- grain and seeds between Sioux City, Iowa - cessories; automobile, truck, station lina, Georgia, Florida, Ohio, Kentucky, and points in South Dakota. wagon, bus, and ambulance show equip- Tennessee, -Alabama, Illinois, Wisconsin, No.*MC 86687 Sub 42, (amended June ment and paraphernalia;vehicles, except Missouri, Mississippi, Indiana, Michigan, 25, 1956) filed May 29, 1956, published trailers, designed for transportation of Arkansas, and Iowa. at page 4061. issue of June 13, 1956, passengers or property, or both, and new No. MC 107515 Sub 231, filed June 15, SEABOARD AIR' LINE RAILROAD bodies, chassis, cabs, parts and acces- 1956, REFRIGERATED -TRANSPORT COMPANY, a corporation, Seaboard Air sories, and show equipment and para- CO., INC., 290 University Avenue SW., Line Railroad Building, Norfolk 10, Va. phernalia pertaining thereto, in initial Atlanta, Ga. Applicant's attorney: Allan Applcant's representative: James S. movement, in truckaway_ serice, from Watkins, 204 Grant Building, Atlanta 3, Cremins, Seaboard Air Line Railroad South Bend, Ind. to points in Alabama, Ga. For authority to operate asia-com- Company, Norfolk 10, Va. For authority Georgia, New Mexico, and Tenpessee, mon carrier,over-irregular routes, trans- to operate as a common carrier,over a and in that part of North Carolida east porting: Candies,from Kansas City, Mo., regular route, transporting: General of a line commencing at the Virginia- to points in Tennessee, North Carolina, commodities, including commodities of North Carolina State line and extending South Carolina, Alabama, and Missis- -unusual value, and Class A and B ex- along U. S. Highway'21 to Statesville, sippi. Applicant is authorized to con- plosives, but excluding household goods' N. C., thence along U. S. Highway 70 to duct operations in Missouri, Georgia, and as defined by the Commisson, com- Salisbury, N. C., and thence along U. S. Florida. modities in bulk and those requiring Highway 52 to the North Carolina-South No. 'MC 109640 Sub 15, filed June 18, special equipment, (1) between Hamlet, Carolina State line; all the afore-men- 1956, BICE TRUCK LINES, INC., Laurel, N. C., and Andrews, S. C., from Hamlet tioned c6mmodities, in secondary move- Mont. Applicant's attorney: Jerome An-, over U. S. Highway 74 to Junction North menti in truckaway service, from South derfon, Electric Building, Billings, Mont. Carolina Highway 381, thence oyer North Bend, Ind., to points and places in Ala- For authority- to operate as a -common Carolina Highway 381 to North Caro- bama, Georgia, New Mexico, and Ten- carrier,6ver irregular routes,'transport- lina-South Carolina State Line, tience nessee, and the above-described area of Ing: Petroleum and petroleum products, over South Caroind Highway 381 to Clio, North Carolina, subject to the stipulation. in bulk, initank vehicles, from points in' thence over South Carolina Highway 9 that this secondary truckaway service is Big Horn County, Mont., to points in to Dillon, thence over South Carolina to be restricted to transportation of such Wyoming, and contaminated shipment Highway 57 to junction South Carolina traffic as has been transported by appli- on return. Applicant is authorized to Highway4Land thence over South Caro- cant or other carriers in initial move- conduct operations in Montana, -Idaho, lina Highway 41 to Andrews, and return ments from 'South Bend, Ind., and and Wyoming. over.the same route, serving the fiter- further restricted against the transpor- No. MC 110436 Sub 24, filed June 18, mediate and off-route points of Gibson, tation of such traffic as has had an 1956, ROBERTSON TRANSPORTS, N. C, McCol, Clio, Little Rock, Dillon, immediately prior movement by water. INC., 5700 Polk Avenue, P. 0. Box 9218, Floydale, Mullins, Johnsonville, Hemlxlg- Applicant Is authorized to conduct oper- Houston, Tex. Applicant's attorney: way, Rains, Centenary, Gresham, Poston ations in Alabama, Arizona, Arkansas, Charles D. Mathews, 1020 Brown Build- and Nesmith, S. C. and (2) between California, Florida, Georgia, Illinois, ing, Austin 1, Tex. For authority to M Coll, S. C., and Laurinburg, N. C., over Indiana, Iowa, Kentucky, Louisiana, operate as a common carrier, over irreg- U. S. Highway 15, serving no inter-. Michigan, Minnesota, Mississippi, Mis- ular routes, transporting: Cottonseed oil, mediate points, as an alternate route in souri, New Mexico, North Carolina, Ohio, vegetable oils, animal, oils, animal fats connection with applicant's authorized South Carolina, Pennsylvania, Tennes- and fats, in bulk, in tank vehicles, be- regular route operations between Ham- see, Texas, Wisconsin, Montana, and tween points in Arkansas, Colorado, Jlli- let and Wilmington, N. C., and In con- Wyoming. nois Indiana, Iowa, Kansas, Louisiana, nection with the proposed regular route No. MC 94265 Sub 55, filed June 22, Mississippi, Missouri, Nebraska, 'Okla- -outlined above. RESTRICTION: Au- 1956, BONNEY MOTOR EXPRESS, INC., .homa, New Mexico, and Texas. thority applied for herein to be limited P. 0. Box 4057, Broad Creek. Station, No. MC 110505 Sub 26, filed June 15, to service which is auxiliary to, or sup- Norfolk, Va. Applicant's representative: 1956, RINGLE TRUCK LINES, INC., 601 plemental of, applicanrs rail service and Harry C. Ames, Jr., 238 Transportation South Grant Avenue, Fowler, Ind. Ap- applicant zhall not serve any point not Building, Washington 6, D. C. For au- plicant's attorney: Robert C. Smith, 512 'a station on its rail line Shipments to thority to operate as a common carrier, Illinois Building, Indianapolis 4,- Ind. be transported shall be limited to those over Irregular routes, transporting: For authority to operate as a common moving on i through bill of lading or Meats and packing-house products, as carrier,over irregular routes, transport- Railway Express receipt. Applicant is defined by the Commission, from Nor- ing: Foodstuffs,- canned, preserved- or authorized to conduct motor carrier op- folk and Suffolk, Va., to pontsin Mary- prepared (not frozen), and beverages, erations in Florida, Georgih, North Caro- land, Pennsylvania, New Jersey, and New non-alcoholic, from Rochelle, De Kalb, lina, South Carolina, and Virginia. York. Applicant is authorized to con- Mendota, Belvidere, Lanark, and Peca- No. C 88454 Sub 1, filed June 21,1956, duct operations in Iowa, Minnesota, Il- tonica, Ill., and FTankfort, Ind., to points GERALD G. QUIST, 720 Sixth Avenue linois, Nebraska, Virginia, West Virginia, in Pennsylvania, Ohio, West Virginia, SW., Pipestone, Minn. For authority to Ohio, Kentucky, Missouri, Indiana, Wis- Indiana, Kentucky, Illinois, Iowa, and operate as a common carrier,over irreg- consin, North Carolina, Maryland, Ten- St. Louis County, Mo. Applicant is au- ular routes, transporting: Feed, from nessee, and the District of Columbia. thorized to conduct operations in Indi- Sioux City, Iowa, to Plpestone, Mian. No. MC 95211 Sub 1 (Amended), fmed ana, Illinois, Ohio, Kentucky, West No.,MC 92722 Sub 10, filed June 14, April 5, 1956, published page 2904, issue Virginia, Wisconsin, Iowa, Missouri, 1956, ROBERT I. WALKER, INC., 1818 of M-Tay -2,1956, JOE FORTUNER, 17 Tennessee, Nebraska, Iowa, and Alabama. West Sample Street, P. O. Box 206, South Devine Street, Carbondale, Pa. For au- No. MC 110920 Sub 1, filed June 8, Bend, Ind. Applicant's attorney: Wil- thority to operate as a common carrier, 1956, JOHN PERVINAloing business as mer A. Hill, Transportation Buldinii over irregular routes, transporting: PERVIN GRAIN & TRANSIT CO, 1819 Washington, D. C. For authority to Housewld goods, and oflce equipment, Third Avenue SE., Rochester, Minn. Ap- operate as a common carrier, over Ir- between points n Lackawanna, Pike, plicant's representative: A. R. Fowler, regular routes, transporting: Automo- Susquehanna, and Wyoming Counties, 2288 University .Avenue, "St Paul 14, biles, trucks, station wagons, busses, and Pa., bounded by a line beginning at Minn. .or .authority to operate as a ambulances, new; new automobile, truck, Olyphant, Pa., and extending in an east- common carrier, over irregular routes, station wagon, bus, and ambulance erly direction to Greeley, Pa., thence transporting: Horsemeat,'fresh or fro-

111 (118 of 135) 4988 Case: 18-55682, 10/31/2018,NOTICES ID: 11068173, - DktEntry: 24-2, Page 114 of 124 zon, from Duluth, Minn., to points in business as CATENCAMP TRANS ER operate as a common carrier,over irreg- Massachusetts, New York, New Jersey, & STORAGE, 303 East Stephens Street, ular roites, traniporting: Livestock and Ohio, and Pennsylvania. Shawano, Wis. Applicant's attorney: lumber, from port of entry on the inter- No, MC 110920 Sub 2, filed June 18, Claude J. Jasper, 1 West Main Street, national boundary between the United 1956 JOHN PERVIN, doing business as Madison 3, Wis. For authority to oper- States -and Canada at or near Sweet- PERVIN GRAIN & TRANSIT CO., 1819 ate as a contract carrier, over irregular grass, Mont., to Salt Lake' City, Utah; Third Avenue SE,, Rochester, Minn. Ap- routes, transporting: Formaldehyde, in hay (race horse), from port of entry on plicant's representative: A. R. Fowler, bulk, in tank vehicles, from Calumet the international boundary between 2288 'University Avenue, St. Paul 14, City, Ill., to Shawano, Wis. United States and Canada at or near Minn, For authority to operate'as a No.-MC 115162 Sub 10, filed June 21, Sweetgrass, Mont., to points in Califor- common carrier, over irregular routes, 1956, WALTER POOLE, doing business nia; stone and salt, from points in Utah transporting: Prefabricated houses, as POOLE TRUCK LINE, Evergreen, to port of entry on the international knocked down, inbluding parts therefor, Ala. Applicant's representative: Hugh boundary between United States and as more fully described in the application, R. Williams, 2284 West Fairview, Mont- Canada at or near Sweetgrass, Mont., from Litchfield, Minn. to points in North gomery, Ala. For authority to operate machinery, from points in California, to Dakota, South Dakota, Missouri, Wiscon- as a' common carrier, over irregular port of entry on the international bound- sin, Illinois, Iowa, Indiana, and Mon- routes, transporting: Farm machinery' ary between United States and Canada tana. and equipment, and parts for farm ma- at or near Sweetgrass, Mont. No. MC 112272 Sub 3, filed June 12, chinery and equipment, from Louisville, No. MC 115884 Sub 1,filed June 21,1956, 1956, REISS TRANSPORTATION, INC., Ky., Memphis, Tenn., Richmond, Ind., CECIL E. STIERNAGLE, doing business 24-60 28th Street, Long Island City, N. Y. and Moline, Ill., Hooperton, East; Moline, as MOBILE-HOME TOWING-SERVICE, Applicant's attorney: Richard F. Bren- and Chicago, Ill.,.Waterloo, Des Moines, Albers Trailer Court, P. 0. Box 22, R. R. nan, Ji'., 36 Waldron Avenue, Staten Dubuque, nd Ottumwa, Iowa, Horicon, No. 2, Rantoul, Ill. Applicant's attor- Island 1, N Y. For authority to oper- Wis., and Chamblee, Ga., to points in ney: Alfred H. Reichman, 318 North ate as a common carrier, over.irregular Alabama, and Pensacola, Fla. Hickory Street, Champaign, IlI. For au- routes, transporting: Grease, in bulk, in No. MC 115408 Sub 2, filed June 19, thority to operate as a common carrier, tank vehicles, between New York, N.'Y., 1956, GELAS COURCHESNE, St. Cyxille over irregular routes, transporting: on the one hand, and, on the other, New- De Wendover, Drummondville, Quebec, House trailers, towed by motor vehicle, ark, N, J,, and Kearny, N. J. The appli- Canada. Applicant's attorney: Andre J. between Rantoul, Ill., and points in Mis- cation is accompanied by motion to dis- Barbeau, 795 Elm Street, Manchester, souri, Arkansas, Texas, Oklahoma, New miss on the grounds that applicant holds N. H. For authority to operate as a Mexico, and Arizona. in qertificate No. MC 112272 the author- common carrier, over irregular routes, No. MC 115941 (Amended), published Ity sought herein, Applicant is author- transporting: H a r d w oood dimension page 2907, issue of May 2, 1956, filed ized to conduct operations in New York stock, in bundles, from ports of entry April 19,1956, WILLARD CALVERT AND and New Jersey. on the International Boundary line be- OSCAR CALVERT, doing business ,as No, MC 113388 Sub 17 (AMENDED), tween the United States and Canada lo- CALVERT BROS. TRANSFER, 102 filed April 9, i956, published April 25, cated at or near Jackman, Maine, and Trumbo Avenue, Morehead, Ky. Appli- 1956, LESTER C. NEWTON TRUCKING Norton and Derby Line, Vt., to Auburn, cant's attorney: Thomas R. Burns, CO,, Bridgeville, Del. Applicant's attor- Freedom, Locke Mills, Mechanic Falls, Morehead, Ky. For authoritk to operate- ney: Glenn F. Morgan, 1008 Warner Old Town, and Orono, Maine, and Bald- as a common carrier, over irregular Building, Washington 4, D. C. For au- winville, Gardner, Marlboro, and Tem- routes, transporting: Household goods, thority to operate as a common carrier, pleton, Mass., and damaged shipments as defined by the Commission, from over irregular - routes, transporting: and empty containersor other such imici- points in Rowan County, Ky., to points in Frozeg foods, from Houston. Del., to dental facilities (not specified) used in Ohio, West Virginia, Iidiana, and Mich- Dover, Del,, and empty containers or transporting the above-specified com- igan, and empty containersor other such other such incidental facilities (not spec- modity on return movements. -incidentalfacilities used in transporting ified), on return. Applicant is author- No. MC 115490 Sub 1, filed June 20, the commodities specified on return. ized to conduct operations in Virginia, 1956, BERNARD KLEIN, SAMUEL No. MC 115956, filed April 26, 1956, Delaware, Massachusetts, Connecticut, KLEIN, and EMANUEL KLEIN, a part- L. A. WHITE, doing business as WHITE Now York, New Jersey, Pennsylvania, nership,- doing business as BERNARD'S TRANSFER CO., 714 Reed Street, Bilt- Maryland, North Carolina, and the Dis- EXPRESS & TRUCKING, 48-20 30th more, N. C. For authority to operate as trict of Columbia." Street, Long Island City, N. Y. For. au- a common carrier,over irregular routes, Nor'Applicant holds a certificate author- thority to operate as a common carrier, transporting:-.Liquid wax, in bulk, in izing transportation of frozen fobds from over irregular routes, transporting: specially constructed tank vehicles, be- Dover to various states. The purpose of this Toilet paper, facial tissue, paper towels, tween points in New Jersey, Maryland, application Is to extend authority to Hous- paper napkins, paper containers, paper Delaware, and Pennsylvania, on the one ton, Del., from which point the same desti- plates, sanitary napkins, wrapping paper hand, and, on the other,_points in Ten-' nations may be served as now from Dover. and paper'bags, from Long Island City, nessee, North Carolina, South Carolina, It is proposed to tack the proposed authority N. Y. to points in Nassau and Suffolk to the present authority from Dover. Georgia, and Florida. Counties, N. Y., transporting returned No. MC 115970, filed June 21, 1956, No, MC 113779 Sub 44, filed June 21, shtipments on return, operations to be JAY LOGAN, 736 Skyline Drive, Lan- 1956, YORK INTERSTATE TRUCKING, restricted to prior .movements by rail. caster, Pa. Applicant's attorney: Wil- INC,, 8222 Market Street Road, Houston, No. MC 115523 Sub 8, filed June 15, liams Livengood, Jr., 25 South Front Tex, For authority to operate as a com- 1956, CLARK TANK LINES COMPANY, Street, Harrisburg, Pa. For authority to mon carrier,over irregular routes, trans- (a corporation), 1450 Beck Street, P. 0. operate as a contractcarrier, over irregu- porting: (1) Muriatlc acid, in bulk, in Box 1895, Salt Lake City, Utah. Appli- lar routes, transporting: Petroleum tank vehicles, from Fort Worth, Tex., to cant's attorney: Harry D. Pugsley, Con- products, excluding products transported points in'Arkansas, Louisiana, Missis- tinental Bank Building, Salt Lake City in bulk in tank- vehicles, from Freedom, sippi, New Mexico, and Oklahoma (ex- 1, Utah. For authority to operate as a Pa., to New York, N: Y., Philadelphia, cept Healdton, Miami, Lillard Park, Guy- common carrier, over irrigular routes, Pa., including the Philadelphia, Pa. Com- mon, Enid, Seminole, and Pauls Valley, transporting: Road- oil, asphalt and mercial Zone as defined by the Commis- Okla., and Bossier City-and Shreveport, other petroleum products, in bulk, in sion, and Baltimore, Md., for delivery to La,, and (2) acids in bulk; in tank ve- tank vehicles, from Salt Lake City, Utah docks at said ports for shipment in for- hicles, from Tulsa, Okla., to points in and points within fifteen miles of Salt eign commerce. Empty containers or Arkansas, Kansas, Missouri, New Mexico, Lake City, to points in Coconino County, other such incidental facilities used in and Texas, Applicant is authorized to Arlz. Applicant is authorized to con- transporting the commodities specified, conduct operations in Arkansas, Louisi- duct operations in Colorado and Utah. and damaged shipments of the com- ana, Mississippi, Oklahoma, New Mexico, No. MC 115825, filed February 20, 1956, modities specified, on return. and Texas. GLEN 0., ATWOOD, doing business as No. MC 116042, filed June 7, 1956, No, MC 114052 Sub 4, -filied June 18, ATWOOD TRANSPORT, Box 134, Card- WHOLESALE TRAILER CONVOY, INC., 1056, HOWARD CATENCAMP, doing ston, Alberta, Canada. -For authority to 6839 Southeast 82d Avenue, Portland,

112 (119 of 135) Wednesday, July Case:4, 1956 18-55682, 10/31/2018,'FEDERAL ID: REGISTER 11068173, DktEntry: 24-2, Page 115 of 1244989 Oreg.- For authoity to operate as a common tive, returned, used, repossessed and 'Orange, Bloomfield' and Nutley, N. J. carrier, over irregular routes, trade-in shipments on return. Applicant is authorized to conduct'oper-" transporting: Trailersand trailerhouses, NoTc: Applicant has commonr carrier au- ations in New Jersey and New York. in initial and secondary movements, be- thorlty under Certificate No. MC 96121 to No. MC 52476 Sub 3, filed June 18, tween points in Oregon, Washington. transport household goods, among other au- 1956, MORRIS SAYLOR (PAUL SAY- and California, and trailers and trailer thority, and section 210 may be involved. LOR, ADMINISTRATOR), -AND FAN- houses, as may be available for transpor- No.MC116065,publishedonPage3711, NIE SAYLOR, doing business as tation on return. May 30, 1956 under Docket No. CUMBERLAND COACH LMES, Cum- No. Issue of MC 116050, filed June 15, 1956, MC*108340 Sub 8, filed May 8, 1956 (see berland, Ky. For authority to operate ROBERT H. CARR, SR., doing business a corpo- as a common carrier, over a regular as -RABACHDISTRIBUTING. 3-21 note), HANEY TRUCK LINE; ration, 2219 Cedar Street, Forest Grove, route,, transporting: Passengers an 27th Street, Fairlawn, N. J. Applicant's Applicant's representative: John their baggage, and express, mail, and representative: Oreg. Bert Collins, 140 Cedar AL Hickson, Yeon Building, Portland, newspapers, in the'same vehicle with Street, New York 6, N.Y. For authority to operate as a passengers, between'Hazard, Ky., and as a contract carrier, over. Oreg. For authority to operate contract carrier, over irregular routes, Jenkins,'Ky., from Hazard over Kentucky irregular routes, transporting: Frozen transporting: Lumber and lumber mill Highway 15 to junction U. S.- Highway desserts, from the site of the plant of products, from points in Washington, 119, thence over U. S. Highway 119 to Rambach Farms in Hawthorne, N. J., to Tillamook and Yamhfll Counties, Oreg., Jenkins (aso from junction Kentucky retail stores In New York, N. Y., and to points in California; cottonseed meal, Highways 7 and 15, near Lothair, Ky., points in Nassau, Suffolk, WVestchester, between points in California, on the one over Kentucky Highway 7 to junction Rockland, and Orange Counties, N. Y., hand, and, on the other, points in Wash- Kentucky Highways 7 and 15, near Isom, and those in Fairfield County, Conn.,and ington, Tillamook, Yamhbll, and Mult- Ky.), and return over the same route, returnedshipments on return. nomah Counties, Oreg.; glass containers, serving all intermediate points. Appli- No. AC 116054, filed June 15, 1956, from points in Washington, to points in cant is authorized to conduct operations McKENZIE TRANSPORT LEASING, Washington County, Oreg. Applicant is in Kentucky and Virginia. CO., INC., 6601 South Broadway, St. authorized to conduct operations in APPLICATIONS UNDER SECTION 5 (2) AND- Louis, Mo. Applicant's attorney: Wil- Oregon and Washington. 210 (a) (b) liam J. Lippman, 1413 K Street NV., Washington 5, D. C. For authority to No=: Applicant seeks, by letter dated No. MC- 6222, published in the March June 18, 1956, from Attorney Hickson, to 21, 1956, issue of the FEDERAL REGISTER On- operate as a common carrier,over irreg- amend Its application filed May 8. 1956, for page 1761. Supplemental application ular routes, transporting: Class A, B, cdmmon carrier authority by changing such and C explosives, empty containers and authority to contract carrier authority; filed June 22, 1956, to show M. C. BEN- other smh incidental facilities (not therefore, Docket MC 116065 has been as- TON, JR.; and PAUL P. DAVIS as the specified) used in transporting the com- signed to cover the contract cairier authority persons in control of -vendee. Hearing modities specified in this application, sought and Docket MO 108340 Sub 8 assigned July 9, 1956, at Charlotte, N. C.- and shell cases, and pallets, between the originally assIgned to common carrier au- No. MC-F 6312. Authority sought for site of Savanna Ordnance Depot, lo- thority, is canceled, purchase by UTAH PARKS COMPANY, cated 12 miles north of Savanna, Ill., APPLICATIONS OF MOTOR CARRIERS O Cedar City, Utah, of a portion of the op- and Camp McCoy, Wis., located 10 miles PASSENGERS erating rights and certaini'prpperty of' east. of Sparta, Wis., on StateHighway THE" GREYHOUND' CORPORATION, No. MC 1002 Sub 10 filed June 11, 1956, 21. 2600 Board of Trade Building, Chicago, No. MC 116055, filed June 15, 1956, ASBURY PARK-NEWYORK TRANSIT Ill. UTAH PARKS COMPANY is con- CORPORATION, Broadway and State trolled by LOS ANGELES & SALT LAKE ORPHA M. ROBBINS and HERBERT - S. ROBBINS, doing business as H. I Highway No. 35, Keyport, N. J. Appi- RAILROAD COMPANY and UNION P ROBBINS COMPANY, 508 West Third cant's attorney: Edward W. Carrie, 123 CIFIC RAILROAD COMPANY, both of Avenue, Ellensburg, Wash. For author- lain Street, Matawan, N. J. For au- Omaha, Nebr. Applicants' attorney: W. ity to operate as a common carrier,over thority to operate as a common carrier, R. Rouse, 1416 Dodge Street, bmaha, irregular routes, transporting: Malt bev-, transporting: Passengersand their bag- Nebr. Operating rights sought to be gage in the same vehicle with passengers, transferrec: Passengers and their bag- erages, from Van'Nuyes, and San Fran- ciSCo, Calif., to points in Washington and hatwee Newark, N. J., and Jesy City, gage, and express, mail and newspapers Oregon, and empty containers or other N. J., from the Junction of New Jersey in the same vehicle with passengers, as a such incidental facilities (not specified) Turnpike and Newark Bay-Hudson common carrierover regular routes he- used in transporting the commodities County Extension of the New Jersey tween Cedar City, Utah, and Lund, Utah, spkified in this application, on return. Turnpike In Newark, over the Newark serving all intermediate points. Vendee- . No. MC 116056. filed June 18, 1956, Bay-Hudson County Extension of the is authorized to operate as a common New LEO CAIN and CECIL LAKE, a partner- Jersey Turnpike to Its junction with carrier in Colorado, New Mexico, Cali- U. ,ship, doing business as CAIN & LAKE, S. Highway No. I in Jersey City, as an fornia, Arizona, Nevada,.and Utah. Ap- Mil City, Oreg. For authority to op- alternate route for operating conven- plication has not been filed for tempo- lence only, serving no intermediate rary authority under section 210a (b). - erate as a contract carrier, over irreg- points, In connection with carrier's au- No. ular routes, transporting: Lumber, from, MC-F 6313. Authority sought for points in Lincoln and Tillamook Coun- thorized regular route operations. Appli- control by KENNETH HUDSON, 70 cant Is authorized to conduct operations Union Street, Medford, Mass. of the oper- ties, Oreg.,,to Rail and Steamship loading in docks in'Lincoln, Tillamook, Yanhill, New Jersey and New York. ating rights and property of McINTIRE Marion, Multnomah, and Polk Counties, No. MC 3647 Sub 201, filed June 15, BUS LINES, INC., 450 .Main Street, 1956, PUBLIC SERVICE COORDINATED Oreg. Stoneham, Mass.. Applicant's attorney: N o. MC 116059, filed June 20, 1956, TRANSPORT, a corporation, 80 Park James H. Sullivan, 52 Maple St., Danvers, Place, Newark, N. J. Applicant's attor- Mass. , Operating rights sought to be RAYMOND BROWN AND BERNARD ney Frederick M. Broadfoot, Public transferred: FRIEDMAN, doing business as BROWN Passengers and their bag-- BROTHERS CARTAGE SERVICE, Service Terminal, Newark 1, N. J. For gage, restricted to traffic, originating at 2900- authority to operate as a common car- the points indicated, in specialor charter 2908 West Taylor Street, Chicago, Ill. rier, over regular Applicant's G. routes,'transportlng: service, as a common carrier over ir- attorney: Edward Baselon, Passengers and their baggage, and ex- regular routbs from points in Middlesex 39- South La Salle Street, Chicago 3, 111. press and newspapersin the same vehicle County, Mass., to For authority to operate as a contract points in Maine, Massa-. carrier,over irregular routes, transport- with passengers, from Irvington, N. J., chusettsi New Hampshire and Rhode over city streets and access roads leading Island; and return.. Applicant holds nG. ing: Such commodities as are dealt in by to and from the Garden State Parkway, I retail furniture dealers, in delivery serv- Parkway authority from the Commission but owns thence over the Garden State - ice, from Chicago and Waukegan, Il, to to access roads leading toand from New controlling stock interest in: Kenneth points In Illinois, Indiana, Michigan, N. J., and re- Hudson, Inc., doing business -as Hudson Jersey Highway 3, Clifton, Hill Bus Wisconsin, and those inIowa on and east turn over the same route' serving all Bus Lines, and Canton & Blue of U. S. Highway 69, and damaged, defec- intermediate points except those in East Line, Inc., which are authdrized to oper-

113 (120 of 135) Case: 18-55682, 10/31/2018,NOTICES ID: 11068173, . DktEntry: 24-2, Page 116 of 124 ate In. New Hampshite, Massachusetts, li , InL Operating rights sought to be goods, as' a comm6n'carrfer over regular Rhode Island, Connecticut, Maine and transferred: Passengers and their bag - routes between Sheridan, Wyo, and New York. Application has been filed gage, restricted originating in the terri- Lame Deer, Mont., between junction un- for temporary authority under section tory indicated, in charter operations, as numbered Montana Highways approx- 210a (b). a common carrier,over irregular routes, imately 14 miles north of Decker, Mont., No. MC-P 6314. Authority sought for from points in Indiana to the District of and Busby, Mont., and between Busby, purchase by GREAT S O U T H E R N Columbia, and points in Alabama, Flor- Mont., and Lame Deer, Mont., serving TRUCKING COMPANY, 1863, Clarkson ida, Georgia, Illinois, Iowa, Kentucky, certain intermediate and off-route Street, Jacksonville, la., of the operat- Maryland, Mich!gan, Minnesota, Mis- points; stockled and heavy machinery, Ing rights and property of 3K S. MOF- souri, New Jersey, New York, North Car- over irregular routes, between points FElT, doing business as MOFEETT olina, Ohio, Oklahoma,. Pennsylvania, within 40 miles of Sheridan, Wyo., in- TRANST LINES, 461 Oak Street, South Carolina, Tennessee, Virginia, cluding Sheridan, and between Sheri- Macon, Ga., and for acquisitioni by West Virginia, and Wisconsin, and re- dan, Wyo., and points within 40 miles of RYDER SYSTEM, INC., JAR CORPO- turn. Vendee is authorized to operate as Sheridan, on the one hand, and, on the RATION, and JAR NO. 2 CORPORA- a common carrier,in Indiana. Applica- other, certain points in Montana; and TION, all of Miami, Fla., J. A. RYDER, tion has not been filed for temporary livestock, between Sheridan, Wyo., and R. N, REE DY and A. E. GREENE, JR., authority under section 210a (b). points in Wyoffiing within 100 miles of all of Jacksonville, of control of such No. MC-F 6318. Authority sought for Sheridan, between Sheridan and points operating rights and property through purchase by AMERICAN RED BALL in Wyoming within 100 miles of Sher- the purchase. Applicants' attorney: TRANSIT COMPANY, INC., 1000 Illinois idan, on the one hand, and, on the other, Allen Post, 1220 First National Bank Building, Indianapolis, Ind, of the oper- certain points in Montana, and between Building, Atlanta 3, Ga. Operating ating rights of G. EVAN REELY, doing points in Montana within 40 miles of rights sought to be transferred: General business as REELY'S STORAGE AND Sheridan, Wyo.; (Nestor) General com- commodities, with certain exceptions FREIGHT TERMINAL, 734 West Broad- modities, except Class A and B explo- Including household goods, as a common tvay, Missoula, Mont., and for acquisition sives, as a common carrierover irregular carrier over regular routes, between by CEARENCE KISSEL, also of Indian- routes;, between Miles City, Mont, on the Macon, Ga., and Eastman, Ga., between apolis, of control of such rights through one hand, and, on the other, points in Macon, Ga,, and Dublin, Ga., and be- the purchase. Applicants' representa- Montana'within 150 miles of Miles City; tween Macon, Ga., and Americus, Ga., tives: Rice, Carpenter and Carraway, 618 general commodities, in collection-and- serving all Intermediate points. Vendor Perpetual Building, Washington 4, D. C. delivery service, between points in Wi- also operates in Georgia under the Sec- Operating rights sought to be trans- baux, Mont.; and general commodities, ond Proviso of section 206 (a). (1". ferred: Household goods, as defined by including- livestock, between. points in Vendee Is authorized to operate as a, the Comniission, as a common carrier, Montana and North Dakota located common- carrier in Alabama, Georgia, over irregular routes, between points in within 50 milesof Wibaux, Mont. Vendee South Carolina, North Carolina, Tennes- Montana, between points in Montana on is authorized to operate as a common see, and Florida. Application has been the one hand, and,-on the other, points carrier in Minnesota, South Dakota, filed for temporary authority under in Idaho, Oregon, Washington, Cali- Nebraska, Iowa, Wyoming, Colorado, iection 210a, (b). fornia, and Nevada, and between points North Dakota, Montana, Wisconsin, 11- No, MC-F 6315, Authority sought for in Montana on and west of U. S. Highway linols-, Utah, Washington, California, purchase by CENTRAL NEW YORK 89, on the one hand, and, on the other, Nevada, Arizona, Idaho, and Oregon. REIGHTWAYS, INC., 344 Sixth Noikth points in Wyoming, Colorado, Utah, Ari- Application has not been filed for tempo- Street, Syracuse, N. Y., of the operating zona, and North Dakota. Vendor is re- rary authority under Section 210a (b). rights and property of MOHAWK EX- taining a broker's' license; Vendee is PRESS, INC., Progress Street, Union, authorized to. operate as a common car- By the Commission. N, J., and for acquisition by W. W. PAT- rier in Alabama, Arkansas, Colorado, [SEALI HAROLD D. McCoy, TERSON, JR, also of Syracuse, of con- Connecticut, Delaware, Florida, Georgia,' Secretary. trol of such rights and property through Illinois, Indiana, Iowa, Kansas, Ken- tucky, Louisiana, Maine, Maryland, [F. R. Doc. 56-52G4; Fied, July 3, 1956; the purchase. Applicants' ' attorneys: 8:47 Frank J. Foley, 80 Broad Street, New Massachusetts, Michigan, Minnesota, a. m-l York 4, N. Y., and Norman M. Pinsky, Mississippi, Missouri, Nebraska, New, 407 South Warren Street, Syracuse 2, Hampshire, New Jersey, New Mexico, New York, North Carolina, Ohio, Okla- N. Y. Operating rights sought to be FoURTH SECTION APPLICATIONS FOR RELIEF transferred: General commodities, with homa, Pennsylvania, Rhode Island, certain exceptions including household South, Carolina, South Dakota, Tennes- JuNE 29, 19560, goods, as a common carrierover irregular see, Texas, Vermont, Virginia, Wiscon- Protests to the granting of an applica- routes between points li Bergen, Essex, sin, West Virginia, Wyoming, and the tion must be prepared in accordance with Hudson, Middlesex, Morris, Passaic, District of Columbia. Application has Rule 40 of the general rules of practice Somerset, and Union Counties, N. J., and been filed for temporary authority under (49 CFR 1.40) and filed within 15 days points in the New York, N. Y., Commer- section 210a- (b),. from the date of publication of this cial Zone, as defined by the Commission, No. MC-F 6319. Authority sought for notice in the FEDERAL REGISTER. on the one hand, and, on the other, cer- purchase by BUCKINGHAM TRANS- tain points in New York. Vendee is PORTATION, INC., lOmaha and West LONG-AND-SHORT HAUL authorized to operate as a. common car- Boulevard, Rapid City, S. Dak., of the PSA No. 32285: Coke and related ier In New York. Application has been operating rights of A. F. GERM&NN, products-Chfcago district to points in filed for temporary authority under sec- doing business as BIRNEY -FREIGT Ontario. Filed by H. R. Hinsch, Agent, tion 210a (b), LINE, 918 Adair Street, Route No. 3, for interested rail carriers. Rates on No, MC-F 6316. Authority sought for Sheridan, Wyo., and a portion of the petroleum coke, coke breeze, coke screen- purchase by CENTRAL SWALLOW operating rights and certain property of ings, and pitch coke, carloads from COACH LINES, INC., 724 North Capital EDWARD J. NESTOR, doing business as Chicago, Ill, Whiting, Ind., and other Avenue, Indianapolis, Ind., of a portion POWDER RIBER BUS LINES, 1200 Ivy, p6ints in Illinois and Indiana in the of the operating rights of TRANSIT Miles City; Mont., and for acquisition Chicago district named in the applica- SERVICE COMPANY, INC.: 724 North by EARL F. BUCKINGHAM' and HAR-' tion, to Chippewa. Niagara Falis, Port Capital Avenue, Indianapolis, Ind., and OLD D. BUCKINGHA, both of Rapid Colborne, Thorold, and Welland, Ont., for acquisition by CHARLES SECON- City, of control of such rights and prop- Canada. DINO, STANLEY MILLER, JOHN erty through the purchase. Applicants' Grounds for relief: Water compettion GIOVANNI, JR., LESSIE A, BUFFO and representative: Marion F. Jones, -526 and circuitous routes. B, C, HALL, all of Indianapolis, of con- Defiham Building, Denver 2, Colo. Op- Tariffs: Supplement 33 to Baltimore trol of such rights through the purchase. erating, rights sought to be transferred: and Ohio Railroad Company tariff Applicafits' attorney,: Harry J. Harman, (Germann) General commodities, with I. C. C. 24272 and other tariffs listed in 210 Bankers Trust Building, Indianapo- certain exceptions including household appendix A of the application.

114 (121 of 135) Wednesday, July Case: 4, 1956 18-55682, 10/31/2018,FEDERAL ID: REGISTER11068173, DktEntry: 24-2, Page 117 of 1244991 FSA No. 32286: Petroleum products to Now, therefore, as Administrator of administration thereof Ladora,Derby, am Denver, Colo. prior to return, Filed the Small Business Admini tration, .1 and after, adequate provision by F. C. Kratzmelr, Agent, for interested for taxes hereby determine that: and conservatory expenses: rail carriers. Rates on refined petro- 1. Applications for disaster loans un- Claimant, Claim No., Property, leum products, tank-car loads from der the provisions of section 207 (b) (1) and Location specified' points in Arkansas, Kansas, of the Small Business Act of 1953, as Mrs. Emilie N-ratzke, Krels Soltau, Han- Louisiana, Missouri, New Mexico, Okla- amended, may be received and con- nover. Germany, $2,312.11 in the Treasury homa, and Texas to Ladora, Derby and sidered by the Offices below indicated of the United States. Claim No. 59294, Vest- Denver, Colo. from persons or firms whose property ing Order No. 17156. Grounds for relief: Circuitous routes. situated in Allegheny Couhty (includ- - Executed at Washington, D. C., on Tariff: Supplement 58 to Agent Kratz- Ireir's L.C. C. 4193. ing any areas adjacent to said county) June 27,1956. suffered damage or other destruction as For the Attorney FSA iNo. 32287: Trailer-on-flat-car a result of the catastrophe above re- General. service between Central and Southwest- ferred to: [SEAL] PAUL V. MYRON, ern territories. Piled by P. C. Kratz- Deputy Director, meir, Agent, for interested Small Business Administration Regional rail carriers. Office, Jefferson Building, Room 1118, 1015 Office of Alien Property. Rates on various commodities, moving Chestnut Street, Philadeli5hla 7, Penn- [P. R. Doec. 56-5307; Fl3ed. July 3, 1956; on class and commodity rates, in high- sylvania. 8:52 a m.l way trailers transported on railroad flat Small Business Administration Branch cars between specified points In Ohio, Office, Fulton Building, Rooms 801-802, 107 and Pennsylvania, also Louisville, Ky., Sixth Street, Pittsburgh 22, Pennsylvania. on the Erie Railroad Company, on the 2. No special field office will be es- NETHERLANDS FOR THE BENEFT. or ALICE one hand, and points in Arkansas, Lou- tablished at this time. KAREL1NE DE JONG ET AL. isiana, Oklahoma, and Texas, on the 3. Applications for disaster loans un- NOTICE OF INTENTION e TO RETURN VESTED other. der the authority of this Declaration PROPERTY Grounds for relief: Motor truck com- will not be accepted subsequent to Pursuant petition and circuity. December 31, 1956. to section 32 (f) of the Trad- Tariff: Supplement 2 to Agent Kratz-' ing With the Enemy Act, as amended, meir's tariff I. C. C. 4195. Dated: June 20, 1956. notice is hereby given of intention to re- FSA No. 32288: Barytes, etc., from New WENDELL B. BARNES, turn, on or after 30 days from the date Mexico to interstate points. Filed by Administrator. of publication hereof, the following prop- F. C. Kratzmelr, Agent, for interested erty, subject to any increase or decrease rail carriers. Rates on barite (barytes), (F. R. Dec 56-5292; Filed, July 3, 1956; resulting from the administration celestite ore,-carloads from Limitar, 8:49 a. in.] thereof prior to return, and after ade- cNierney, San Acacia and Socorro, N. quate provision for taxes and conserv- .Mex.,to various interstate destinations atory expenses: -asdescribed in the application. DEPARTMENT OF JUSTICE Claimant, Claim No., Property, and Location Grounds for relief: Short-line distance Office of Alien Properly The State of the Netherlands for the ben- formula and circuitous routes. efit of (all right, title and interest of the Tariff: Supplement 55 to Agent Kratz- A. A. CISSLING Attorney General acquired pursuant to Vest- meir's L C. C. 4092. NOTICE OF INTENTION TO RETURN VESTED lag Order No. 18521 (16 F. R. 10097. October FSA No. 32289: Old bags-Official Ter- PROPERTY 3,1951)inandto): ritory to Memphis, Tenn. Filed by F. C. Alice Kareline de Jong; L. S. -Claim No. Kratzmeir, Agent, for interested rail Pfirsuant to section 32 (f) of the Trad- 239, Cities Service Company 5/58 Debenture No. 12146, in the principal amount of $1,000. carriers. Rates on bags, old, worn out, ing .With the Enemy Act, as amended, notice is hereby given of intention to re- Carolina Eitje- L. S. Claim. No. 376, Cities carloads from specified points in official Service Company 5/69 Debenture No. 10958, territory to turn, on or -fter 30 days from the date Memphis, Tenn. of publication in the principal amount of $1,000, Grounds for relief: Carrier competi- hereof, the foloiKing prop- Albert and Sally Elzas, Cato Sjouwerman, tion and circuity. erty, subject td any increase or decrease Cornelis, Simon, Bertha and Bernard de Vries resulting from the administration there- Lydia Kroonenberg, and Constance Muyen, By the Commission. of prior to return, and fifter adequate L. S. Claim No. 380, Cities Service Company 5/58 Debenture [SEAL] HAROLD D. McCoy,. provision for taxes and conservatory No. 27522, in the principal e x p e s es : I 'amount of $1,000. Secretary. Herman Judel, Eduard Elias, and Joel Claimant, Claim No., Property,and Location (F. I. Goudsmit, L. S. Claim No. 413, Cities Service Doc. 56-5282; Filed. July 3, 1956; Power and Light Company 5A/52 Debenture 8:46 a. m.1 A. A. Rissling. Bern, Switzerland, $1,147.94 In the Treasury of the United States. Claim No. 18589,. in the principal amount of $1,000. No. 41268, Vesting Order No. 5585. Adriana Beversluis, Jacques and, Maria -Hamburger, L. S. Claim No. 462, Cities Service SMALL BUSINESS ADMINISTRA- Executed at.Washngton, D. C., on Company 5/58 Debenture No. 107, in the June 27, 1956. principal amount of $500. TION Netherlands Embassy, Office of the Finan- [Deplaratlon of Disaster Area 1071 For the Attorney General. cial Counselor, 25 Broadway, New York 4, ESEAL] PAUL V. MYRON, New York, PENNSYLVANIA, Deputy Director, Executed at Washington, D. C., on DECLARATION OF DISASTER AM Ofqce of Alien Property. 'June 27, 1956. For the Whereas IF. R. Doc. 58-5306; Filed, July 3, 1956; Attorney General. it has been.reported that on 8:52 a. m.] or about June 17. 1956, because of the [SEAL] PAUL V. MYRON, disastrous effects of a flood, damage re- Deputy Director, sulted to residences and business prop- Office of Alien Property. erty located in certain areas in the State [P. R. Doec. 56-5308; Filed, July St 1956; of Pennsylvania;- 8:52 a. m.] Whereas the Small Business Adminis- NOTICE OF INTENTION TO RETURN VESTED tration .has investigated and has re- PROPERTY ceived other reports of investigations of conditions In the Pursuant to section 32 (f) of the NETHERLANDS FOR Tm BENEFIT OF THEA areas affected; and Trading With the Enemy Act, as Whereas CswiUE ELIAS ET AL.- after reading and evaluating amended, notice is hereby given of in- reports of such conditions,. I find that tention to return, on or after 30 days NOTICE OP INTENTION TO RETURN VESTED the onditons in such areas constitute from the date of publication hereof, the PROPERTY a catastrophe within the purview of the following property, subject to any in- Pursuant to section 32 (f) of the Trad- Small Business Act of 1953, as amended: crease or decrease resulting from the ing With the Enemy Act, as amended, No. 129- 7

115 (122 of 135) 4992 Case: 18-55682, 10/31/2018, NOTICESID: 11068173, DktEntry: 24-2, Page 118 of 124 notice Is hereby given of intention to- Mrm. u=a'Cistlne Leopold, L. S. Claim !NETHERLANDs FOR THE BENEFIT OF return, on or after 30 days from the date No. 570, Cities, Service Company 5/69 Deben- NICOLAAS 11- VRIES ET AL of publication.hereof, the following prop- ture No. 1461, in the principal amount of $1,000.. NOTICE OF INTENTION TO RETURN VESTED arty, subject to any ncrease'or decrease Jonas, Chawa and -Betty Loopuit, L. S. PROPERTY resulting from the administration there- Claim No. 586, Southern Pacific Company of prior to return, and after adequate 4/49 Bond No. 107, in the principal amount Pursuant to section 32 (f) of the provision for taxes and conservatory of $500. Trading With the Enemy Act, as expenses: Mazes Jacob Nieuwendijk, I. S. Claim No. amended, notice is hereby given of in- 623, Cities Service Company 5/50 Debenture Clatant,Claim. No., Property,and Location No. 89930, in the principal amount of $1,000. tention to return, on or after 36 days The State of the Netherlands for the bene- Netherlasnds Embassy, Office of the Finan- .from the date of publication hereof, the it of (all right, title and interest of the cial Counselor, 25 Broadway, New York 4,New. followiig property, subject to any In- Attorney General acquired pursuant to Vest- York. crease or decrease resulting from the ing Order No. 18521 (10 1, R. 10097, October 3, Executed at Washington, D. C., on administration thereof prior to return, 1051) nandto): June 27, 1956. and after adequate provision for taxes Thea Celine Elias, L. S, Claim No. 878, Un- and conservatory expenses: ion Pacific Railroad Company 4/47 Bond No. For the Attorney General 16830, in the principal amount of $500. Claimant, Claim No., Property, and Location Grqtha Elias, L. S. Claim No. 408, Cities [SEAL] PAUL V. MYRON, The State of the. Netherlands for.the ben- Service Company 5/66 Debenture No. 8006, Deputy Director, efit of (all right, title and interest of the In the principal amount of $1,000. Offlce of Alien Property. Erich Theodor Gelber, L. S. Claim No. 419, Attorney General acquired pursuant to Vest- Cities Service Company 5/58, Debenture No. IF. R. Doc. 56-5310; Filed, July 3, 1956; ing Order No. 18521.(16 F. R. 10097, October 18514, n the principal amount of $1,000. 8:52 a. m.] 3, 1951) In and to): ]rcddy Gompertz, L. S. Claim No. 439, Nicolaas and Hugo de Vries, L. S. Claim No. Southern Pacific Company-San Francisco 519, Southern Pacific Railroad Company 4/55 Terminal 4/50 Bond No. 3057, In the principal Bond No. 30288, in the principal amount of amount of $500. $1,000. NETHERLANDS FOR THE BENEFIT OF NaatJe and Rudolf Sanders, L. S. Claim Antonia Maria Wilhelmina Gosschalk-Ber- JOSEPHINE VAN ADELBERGEN ET AL. gen, L. S. Claim No. 442, Southern. Pacific. No. 534, Southern Pacific Company 4/49 Bond Company-San Francisco Terminal 4/50 Bond. NOTICE OF INTENTION TO RETURN VESTED Nos. 21931 and 16240, in the principal amount No, 3368, in the principal amount of $100. PROPERTY of $1,000 each. Netherlands Embassy, Office 6f the Finan- M. Kleerekoper-de Jong and M. Granaada- cial Counselor, 25 Broadway, New York 4, Pursuant to section 32 (f) of the de Jong, I S..-Claim No. 535, Southern Pacific Now York. Trading With the Enemy Act, as amend-. Company-San Francisco Terminal 4/50 Bond ed, notice is hereby given of intention No. 15198, in the principal amount of $1,000. E xecuted at Washington, D. C., on to return, on or aftbr 30 days from the Betty Jessurun and Elvire Veenhuys, L. S. Juno 27. 1956. Claim No. 587, Cities Service Company 5/69 date of publication hereof, the following Debenture No. 41651, in the principal amount For the Attorney General. property, subject to any increase or de- of $1,000. crease resulting from the administration [SEAL3 PAUL V. MYRON, Arthur Menko, L. S. Claim No. 599, Cities Deputy Director, thereof prior to return, and after ade- Service Company 5/69 Debenture No. 19886, quate provision for taxes and conserva- .in the principal amount of' $1,000. Office of Alien Property. tory expenses: Netherlands Embassy, Office of the Finan- cial Counselor, 25 Broadway, New York 4, IF, n. Doec. 50-5309; Filed, July 3, 1956; Claimant, Claim No., Property, and. Location 8:52 a. m.l New York. The State of the Netherlands for the benefit of (all right, ,title and interest of- the Executed at Washington, D. C., on Attorney General acquired pursuant to Vest- June 27,1956. ing Order No. 18521 (16 F. R.,10097, October For the Attorney General NETHEIRLANDS FOR THE BENEFIT OF JOHANNA. S,1951 yin and to): VAN DE RUIT ET AL. Josephine van Adelbergen, nee GodschalZ [SEAL] PAUL V. MYRON, sole heiress of Bertha Godschallc (deceased), Deputr Director, NOTICE OF INTENTION TO RETURN VESTED L. S. Claim No. 431. Cities Service CQmpany Offlce of Alien Property. PROPERTY 5/69 Debenture No. 49031, in the principal amount of $1,000. IF. R. Doc. 56-5312; Filed, July 3, 1956; Pursuant to section 32 (f) of the Trad- Marie Hauer-Hertz, Ellen Zollikofer-Hauer, 8:53 a. m.] Ing With the Enemy Act, as amended, and Lotte van den Bergh-Hauer, L. S. Clalm notice Is 'hereby' given of intention to No. 472, Cities Service Company 5/69 DIben- ture No. 21329, in the principal amount of return, on or after 30 days from the date $1,000. of publication hereof, the following prop- Theodoor Helmans,, L. S. Claim No. 474, NETHERLANDS FOR THE BENEFIT OF crty, subject to any Increase or decrease Cities Service Company 5/69 Debenture No. JOHANNES VAN BURKEN ET AL. resulting from the administration thereof 34932,. in the prinbipal- amount of $1,000. Dr. Jacob H. van der Hoeden, L. S. Claim NOTICE OF INTENTION TO RETURN VESTED prior to return, and after adequate pro- No. 489, Cities Service Company 5/58 Deben- PROPERTY vision for taxes qnd conservatory ex- ture No. 19883, in the principal amount of penses: I D $1,000. Pursuant to section 32 (f) of the Trad- Albert Jules Keizer, L. S. Claim No. 531, Claimant, Claim No., Property, and Location ing With the Enemy Act, as amended, Atchison, Topeka and .Santa Fe Railway notice is hereby given of Intention to The State of the Netherlands for the Company, 4/95-Bond No. 96519, in the prin- benefit of (all right, title and. interest of cipal amount of $1,000. return, on or after 30 days from the the Attorney General acquired pursuant to Netherlands Embassy.Offce of the Pinan- *date of publication hereof, the following Vesting Order No. 18521 (16 F. n. 10097, cial Counselor. 25 Broadway. New York 4, property, subject to any increase or de- October 3, 1051) in and to):' New York. crease resulting from the administration JOhanna, Cornelia, Gerardus and HeeltJe thereof prior to return, and after ade- van de Ruit; Anna de Jonge; and Johanna Executed at Washington, D. C., on van Tongeren, L. S. Claim No. 142, Cities June 27, 1956. quate provision for taxes and conservatory expenses: Service Company 518 Debenture Nos. 7726 For the Attorney General and 13770, in the principal amount of $1,000 Claimant, Claim No., Property, and Location each; and Southern Pacific Company 41//69 [SEAL] PAUL V. MYRON, Bond No, 12259, in the principal amount of Deputy Director, The State of the Netherlands for the ben- $1,000. Office of Alien Property. efit of (all right, title and Interest of the Philip Arnold Hartog, L. S. Claim No. 469, Attorney General acquired pursuant to Vest- Cities Service Company 5/69 Debenture No. iF. I. Doc. 56-5311; Filed, July 3, 1956; ing Order No. 18521 (16 F. R. 10097, October 3, 45802, in the principal amount of $1,000. 8:52 a. m.]. 1951) in and to) .

116 (123 of 135) Wednesday, July Case: 4, 1956 18-55682, 10/31/2018,FEDERAL ID: REGISTER 11068173, DktEntry: 24-2, Page 119 of 1244993

Johannes van Burken, L. S. Claim No. 543, Leon and Narel van Leer, L. S. Claim No. Executed at Washington, D., C., on Cities Service Company 5/66 Debenture No. 559, Cities Service Company 5/69 Debenture June 27,1956. 9864. in the principal amount of 51,000. principal amount of $1,000. No. 48222, in the For the Attorney General. Alice Loebel, r. S. Claim No. 545, Cities S r Prlsco, . S. Claim No. 569. Cities Serv- Service Company 5/69 bebenture No. 14123, Ice Company 5/69 Debenture No. 47616, in [SEAL] PAUL V. MYRON,' in the principal amount of $1,000. the principal amount of $1.000. - Deputy Director, Celifte Kosturkiewicz and Helena looden- Office of Alien Property. bos. T. S. Claim No. 547, Cities Service Com- Netherlands Embassy, Office of the Finan- pany 5/58 Debenture No. 39179, In the prin- cial Counselor, 25 Broadway, New York 4. [F. R. Doc: 56-5313; Filed, July 3, 1956;. cipal amount of $1,000.' New York. 8:53 a. m1

117 (124 of 135) Case: 18-55682, 10/31/2018, ID: 11068173, DktEntry: 24-2, Page 120 of 124

118 (125 of 135) Case: 18-55682, 10/31/2018, ID: 11068173, DktEntry: 24-2, Page 121 of 124

+(,1 2 1/,1(

Citation: 23 Fed. Reg. 3301 (1958), Thursday, May 15, 1958, pages 3295 - 3312

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119 (126 of 135) Thursday, May 15, 1958 FEDERAL REGISTER 3301 Case: 18-55682, 10/31/2018, ID: 11068173, DktEntry: 24-2, Page 122 of 124 person who obtained the exempion has what to that amount within specified themselves of the rules and comment submitted to the Commissioner (in trip- limits; provided, however, that there is thereon, petitioners apparently were not licate) amended information describing a reasonable relationship between the aware of the type acceptance require- such proposed changes, and such amend- specified minimum and maximum con- ments and will suffer a financial loss on ment has been accepted by the Conmis- tributions. Thus, formulas providing equipment which will be obsolete after sioner. When intended for the uses for a minimum contribution of 10 per- June 1, 1958; and specified in this subparagraph, it may cent of profits and giving the employer It further appearing that granting the also contain, in the amount specified, discretion to add to that amount up to petitioners' requests would serve the one, but only one, of the ingredients 20 percent of profits, or for a minimum public interest by lessening the impact prescribed by paragraph (a) of this sec- contribution of 5 percent of compensa- of type acceptance requirements upon tion. If it contains one of the arsenic tion and discretion to increase up to a marine radio equipment dealers and compounds prescribed in such para- maximum of 15 percent of compensation, boat owners without disturbing the con- graph, its labeling must bear a warning would meet the requirement. Rowever, summation of the type acceptance pro- that it must be discontinued 5 days (in a plan which provides for insignificant gram; and -lieu of 48 hours as required in this sub- minimum contributions and permits a it further appearing that the effective paragraph) before the treated swine are variation so great that, for all practical date for type acceptance requirements slaughtered for human consumption. purposes, the formula becomes mean- for radiotelephone transmitters and the ingless as a measure of contributions, spurious emission limitations for both Notice and public procedure are not would not meet the requirement. radiotelephone and radiotelegraph necessary prerequisites to the promulga- transmitters are so related as to make a tion of this order, and I so find, since it 2. Delete from § 778.6 (g) (4) the ref- (iii). uniform date of application desirable, was drawn in collaboration with inter- erence to subdivision and, hence, the effective date of the ested members of the affected industry, 3. Delete the citation appearing in spurious emission limitations Is also since it relaxes existing requirements, footnote 49, § 778.18 (a) which reads "325 amended to coincide with the effective and since it would be against public U. S. 427" and substitute the following: date of the type acceptance require- interest to delay providing for the "331 U. S. 17". ments; and amendment herein set forth. (52 Stat. 1060, as amended; 29 U. S. C. 201- It further appearing that in view of I further find that animal feed con- 219) the imminence of the type acceptance taining antibiotic drugs and conforming Signed at Washington, D. C., this 9th requirements and spurious emission with the conditions prescribed in this day of May 1958. limitations (after June 1, 1958), compli- order need not comply with the require- ance with the public notice and rule 502 (1) and 507 of the CLARENCE T. LUNDQUIST, ments of sections Acting Administrator. making procedure prescribed by sections Federal Food, Drug, and Cosmetic Act in 4 (a) and (b) of the Administrative Pro- order to ensure their safety and efficacy. IF. R. Doc. 58-3667; Filed, May 14, 1958; cedure Act is impracticable; and 8:53 a. m.] Effective date. This order shall be- It further appearing that since the come effective upon publication in the amendments herein ordered relieve an FEDERAL REGISTER. existing restriction, compliance with the TITLE 47-TELECOMMUNI- effective date provisions of section 4 (c) (See. 701, 52 Stat. 1055, as amended; 21 CATION of the Administrative Procedure Act is U. S. C. 371. Interprets or applies secs. 502, not required; and 507, 52 Stat. 1051, 59 Stat. 463 as amended; Chapter I-Federal Communications 21 U. S. C. 352, 357) It further appearing that the public Commission interest, convenience and necessity will Dated: May 9, 1958. [Rules Amdt. 8-6; FCC 58-442] be served by the amendments herein ordered, the authority for which is con- [SEAL] GEO. P. LARRICH, PART 8-STATIONS ON SHIPBOARD IN THE Comimissionerof Food and'Drugs. tained in sections 303 (e) and (r) of MARITIME SERVICES the Communications Act of 1934, as [F. F. Doe. 58-3657; Filed, May 14, 1958; 8:51 a. in.] EXTENSION OF EFFECTIVE DATE OF TYPE AC- amended; CEPTANCE REQUIREMENTS AND SPURIOUS It is ordered, That, effective May 21, EMISSION LIMITATIONS FOR CERTAIN 1958, Part 8 of the Commission's rules is TITLE 29-LABOR TRANSMITTERS amended as set forth below. Released: May 12 1958. Division, At a session of the Federal Communi- Chapter V-Wage and Hour cations Commission held at its offices in Department of Labor FEDERAL COMMUNICATIONS Washington, D. C. on the 8th day of CorMIISSION, Subchapler B-Statements of General Policy or May 1958; [SEAL] MARY JANE MORRIS, Interpretation Not Directly Related to Regula- It appearing that the New Jersey Mar- Secretary. tions itime Electronics Association, Curtis and (See. 4,48 Stat. 1066, as amended; 47 U. S. C. PART 778-OVERTIME COMPENSATION Union Avenues, Manasquan, New Jersey, 154. Interpret or apply sec. 303, 48 Stat. and the E. Smola Company, Inc., 134 1082, as amended; 47 U. S. C. 303) MISCELLANEOUS AMENDMENTS 25th Street, Newport News, Virginia, have Pursuant to authority under the Fair requested the Commission to extend the 1. Section 8.136 (c) is amended by Labor Standards Act of 1938 (52 Stat. effective date of the type acceptance re- deleting in subparagraph 3 thereof the 1060, as amended; 29 U. S. C. 201 et seq.), quirements (for transmitters operating words "After June 1, 1958" and substi- Reorganization Plan No. 6 of 1950 (3 on frequency assignments below 30 Mc) tuting therefor the words "Effective CFR, 1950 Supp., p. 165), and General to January 1, 1959; and January 1, 1959". As amended para- Orders Nos. 45-A (15 F. R. 3290) and It further appearing that petitioners graph (c) reads as follows: Secretary of 85-A (22 F. R. 7614) of the state, in-substance, that such postpone- (c) Except as outlined in paragraph Labor and in accordance with section ment is necessary so that marine radio (d) of this section, the requirements of 3 (a) of the Administrative Procedure equipment dealers and boat owners will paragraph (b) of this section shall be Act (5 U. S. C. 1002), Part 778 of Title 29 not be subjected to financial loss and applicable as follows: of the Code of Federal Regulations is hardship, that only a few manufacturers (1) To any radio transmitter for hereby amended as follows: were fully aware of the implications of § 778.6 (g) which type acceptance is requested. 1. Immediately following the type acceptance regulations, and that (2) To radio transmitters when op- (3) (iii) (c) add the following: the average dealer and boat owner is not erating on any frequency assignment (d) The requirements for a formula for prepared for the enforcement of type between 30 Mc and 500 Me. determining the amount to be contrib- acceptance regulations after June 1, (3) Effective January 1, 1959, to any uted by the employer in (b) and (c) of 1958; and radio transmitter when operating on this subdivision may be met by a formula It further appearing that despite the any frequency below 30 Mc. which requires a specific and substantial fact that standard rule making proce- minimum contribution and which pro- dures were followed providing petitioners 2. Section 8.136 (d) is amended by vides that the employer may add some- with adequate opportunity to apprise deleting in subparagraphs (3) and (4)

120 (127 of 135) 3302 RULES AND REGULATIONS Case: 18-55682, 10/31/2018, ID: 11068173, DktEntry: 24-2, Page 123 of 124 thereof the words "June 1, 1958" and to be authorized in a new or renewal quality of milk disposed of in the mar- substituting the words "January 1, 1959". license issued in response to an applica- keting area; or As amended, paragraph (d) reads as tion filed after June 1, 1963, transmitters (b) Acceptable to agencies of the follows: licensed under this part prior to Jan- United States Government for fluid con- uary 1, 1959, may (insofar as this re- sumption in its institutions or bases in (d) The requirements of paragraph quirement is concerned) continue to be the marketing area, which milk is: (b) of this section shall not apply to: authorized for operation on any fre- (1) Delivered from the farm to a pool (1) Lifeboat transmitters; quency assignment below 30 Mc if au- plant, or (2) Transmitters authorized in de- thorized in a station license issued to the (2) Diverted during any of the months velopmental- station licenses; same licensee or for a station on board of April through June or to the extent (3) Radiotelegraph transmitters li- the same vessel. of not more than 10 days production censed for operation on any frequency during any of the months of February, assignment below 30 Mc prior to Jan- _[F. R. Doc. 58-3662; Filed, May 14, 1958; 8:53 a. m] March, July or.August by a handler from uary 1, 1959, which are authorized in a a pool plant to a nonpool plant for the station license issued to the same account of a handler: Provided,however, licensee or for a station on board the That if milk is diverted to a nonpool same vessel; TITLE 46-SHIPPING plant which is regulated under the pro- transmitters licensed (4) Other radio Chapter Il-Federal Maritime Board, visions of another milk marketing order for operation on any frequency assign- ,such milk will not be considered as pro- ment below 30 Mc prior to January 1, Maritime Administration, Depart- ment of Commerce ducer milk under the provisions of this 1959, which are authorized in a station order. license issued to the same licensee- or [General Order 20. 2d Revislon] for a station on boardthe same vessel 2. Amend paragraph (b) of § 921.8 until they are authorized in a new or PART 272-POLICY AND PROCEDURE RE- Handler to read as follows: renewed station license issued in re- GARDING CONDUCTING OF SUBSIDY CON- DITION SURVEYS AND ACcOIuPLISHTENT (b) A cooperative association with response to an application fled after June spect to the milk of its member producer 1, 1963. OF SUBSIDIZED VESSEL MAINTENANCE AND REPAIRS which is delivered to the pool plant of 3. Section 8.139 (a) (2) is amended another handler or a producer handler by deleting in the first sentence thereof Correction in a tank truck owned or operated by or the words "After June 1, 1958" and sub- In F. R. Doe. 58-3243, appearing at upder contract to such cooperative asso- stituting therefor the words "Effective page 2920 of the issue for Thursday, May ciation (such milk shall be considered January 1, 1959". Section 8.139 (a) (2) 1, 1958, the following changes should be as having been received by such coopera- is further amended by deleting in the made:, tive association at the plant to which it second sentence thereof the words "June 1. In the first sentence of § 272.3 (b) is delivered) ; or I, 1958" and substituting therefor the (1), the word "or" should read "of". 3. Amend § ?21.11 to read as follows: words "January 1, 1959". As amended, 2. The word "Repair" should be in- § 8.139 (a) (2) 'reads as follows: serted after the word "Ship" the,second § 921.11 Pool plant. Pool plant means: (2) Effective January 1, 1959, to trans- time it appears in § 272.6 (b). 3.-The last paragraph ,of § 272.9 (a) An approved plant which proc- mitters when operating on any frequency esses and packages as milk, skim milk or assignment, including any assignment should be designated as "(I) "instead of "(1) ". cream not less than 50 percent of its below 30 Me. However, until requested receipts of approved milk and from which not less than 15 percent of its receipts of approved milk during the month is disposed of as Class I milk in the marketing area to wholesale or retail PROPOSED RULE MAKING outlets. (including sales through plant stores or vendors); (b) A supply plant from which a quan- DEPARTMENT OF AGRICULTURE which relate to the proposed amend- tity of milk equal to at least 40 percent ments, hereinafter set fortl, and any of its supply of milk from producers or Agricultural Marketing Service appropriate modifications thereof, to the other pool plants is shipped to an ap- tentative marketing agreement and to proved plant which processes and pack- [7 CFR Part 921 1 the order. ages as-milk, skim milk or cream not less [Docket No. AO-222-A9] Proposal number 6 refers to such than 50 percent of its receipts of ap- changes in other provisions of the order proved milk during any of the months of HANDLING OF MILK IN OZARKS MARKETING as may be required to effectuate the February, March, April, May, June or AREA operation of individual-handler pools. July:. Provided, That if such plant shall Other sections of the order which might ZOTICE OF NEARING ON PROPOSED AMEND- ship during August 25 percent, Septem- be involved include, but are not limited ber 35 percent, October 40 percent, No- LIENTS TO TENTATIVE MARKETING AGREE- to, the following: =IENT AND TO ORDER vember 45 pprcent, December 40 percent (1) Need for the producer-settlement and January 35 percent, or more of such Pursuant to the provisions of the Agri- 'fund provided in § 921.82 and for the supply to an approved plant which proc- cultural Marketing Agreement Act of payments to and from such fund pur- esses and packages as milk, skim milk or 1937, as amendec (7 U, S. C. 601 et seq.), suant to §§ 921.84 and 921.85; cream not less than 50 percent of its and the applicable rules of practice and (2) Whether all provisions of § 921.11 .receipts of approved milk, such plant procedure governing the formulation of are appropriate; shall be designated as a pool plant during marketing agreements and marketing (3) Whether § 921.61 is appropriate. each of the subsequent months through orders (7 CPR Part 900), notice is The proposed amendments, set forth the following July unless such plant re- hereby given of a public hearing to be .below, have not received the approval of quests nonpool designation by means of held in the Colonial Hotel, 330 St. Louis the Secretary of Agriculture. a written application to the market Street, Springfield, Missouri, beginning Proposed by the Producers Creamery administrator. at 10:00 a. in., local time on May 27, Company: 4. Add a definition concerning ap- 1958, with respect to proposed amend- 1. Amend § 921.7 to read as follows: ments to the tentative marketing agree- proved milk to read as follows: ment and to the order, regulating the - § 921.7 Producer. Producer means § 921.16 Approved milk. Approved handling of milk in the Ozarks marketing any person other than a producer-han- milk means any skim milk or butterfat area. dler who produces milk; contained in producer milk or in milk, The public hearing Is for the purpose (a) Under a dairy farm permit issued skim milk Or cream which is received of receiving evidence with respect to the by a health authority duly authorized to from a pool plant, except a plant of a economic and marketing conditions administer regulations governing the producer-handier and which milk is ap-

121 (128 of 135) Case: 18-55682, 10/31/2018, ID: 11068173, DktEntry: 24-2, Page 124 of 124

Marisha Russell v. Government Employees Insurance Company, et al. 9th Circuit Case No.: 18-55682

CERTIFICATE OF SERVICE

I hereby certify that I electronically filed the foregoing with the Clerk of the

Court of the United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system on October 31, 2018.

I certify that all participants in the case are registered CM/EFC users and that service will be accomplished by the appellate CM/EFC system.

/s/ Monica J. Walker (129 of 135) Case: 18-55682, 10/31/2018, ID: 11068173, DktEntry: 24-3, Page 1 of 7

CASE NO. 18-55682

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

MARISHA RUSSELL, INDIVIDUALLY AND ON BEHALF OF OTHERS SIMILARLY SITUATED,

Plaintiff and Appellant,

GOVERNMENT EMPLOYEES INSURANCE COMPANY, Defendant and Appellee.

Appeal From The United States District Court, Southern District of California, Case No. 3:17-cv-00672-JLS-WVG, Hon. Janis L. Sammartino, Presiding

MOTION FOR JUDICIAL NOTICE IN SUPPORT OF BRIEF OF THE CHAMBER OF COMMERCE OF THE UNITED STATES OF AMERICA AS AMICUS CURIAE IN SUPPORT OF DEFENDANT-APPELLEE GOVERNMENT EMPLOYEES INSURANCE COMPANY

Attorneys for Amicus Curiae Chamber of Commerce of the United States of America (130 of 135) Case: 18-55682, 10/31/2018, ID: 11068173, DktEntry: 24-3, Page 2 of 7

I. REQUEST FOR JUDICIAL NOTICE Amicus curiae Chamber of Commerce of the United States of America respectfully requests that the Court take judicial notice of the following documents and facts:

Exhibit 1: U.S. Department of Labor, Labor Information Bulletin, vol. 14, no. 10

(Oct. 1947).

Exhibit 2: Bureau of National Affairs, The New Wage and Hour Law (1949) and

appendices thereto, and particularly the following fact:

1. On October 19, 1949, Sen. Pepper (D., Fla.) submitted to

the U.S. Senate a Statement of Majority of Senate Conferees, wherein

the majority stated: “This exclusion recognizes that the benefits

received by employees as a result of the employer’s contributions

under such plans are generally received at periods when no work is

being performed for the employer, rather than as compensation for

hours worked.” (Statement of Majority of Senate Conferees,

submitted to the Senate by Sen. Pepper (Oct. 19, 1949), reprinted in

The New Wage and Hour Law, supra, at Appendices-93.)

1 (131 of 135) Case: 18-55682, 10/31/2018, ID: 11068173, DktEntry: 24-3, Page 3 of 7

Exhibit 3: Fair Labor Standards Act Amendments: Hearings on S. 49, etc.,

Before the Labor Subcommittee of the Committee on Labor and

Public Welfare, 80th Cong. (1948) and particularly the following fact:

1. In the aforementioned hearing report, Archibald Cox,

then counsel to the Senate Committee on Labor and Public Welfare,

stated that: “a number of court decisions [under the 1938 FLSA] make

it impracticable, if not impossible, to comply with the law and at the

same time set up profit-sharing plans or certain kinds of pension

trusts. [Citations omitted.] The obstacle should be removed.”

(Hearing report at 198.)

II. DISCUSSION

Judicial notice is proper under Rule 201 of the Federal Rules of Evidence because these documents and facts “can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned” and is requested by

Amicus, who supplies herewith the necessary information.

2 (132 of 135) Case: 18-55682, 10/31/2018, ID: 11068173, DktEntry: 24-3, Page 4 of 7

Additionally, the Court may take judicial notice of public records. Rosenfeld v. JP Morgan Chase Bank, N.A., 732 F. Supp. 2d 952, 959 (N. D. Cal. 2010). Thus, the Court may take judicial notice of the Exhibits 1 through 3 and facts set forth above.

DATED: October 31, 2018 MUNGER, TOLLES & OLSON LLP

By: /s/ Katherine M. Forster KATHERINE M. FORSTER Attorneys for Amicus Curiae Chamber of Commerce of the United States of America

3 (133 of 135) Case: 18-55682, 10/31/2018, ID: 11068173, DktEntry: 24-3, Page 5 of 7

DECLARATION

I, Katherine M. Forster, hereby declare as follows:

1. I am an attorney duly licensed to practice before the Ninth Circuit

Court of Appeal. I am a partner with the law firm of Munger, Tolles & Olson

LLP, attorneys of record for Amicus Curiae Chamber of Commerce of the United

States of America. Except where otherwise stated, I have personal knowledge of the matters stated herein and if sworn as a witness could and would testify competently thereto.

2. Attached as Exhibit 1 is a true and correct copy of U.S. Department of

Labor, Labor Information Bulletin, vol. 14, no. 10 (Oct. 1947). I caused this document to procured by staff working under my direction by searching the digital archives of the Hathi Trust.

3. Attached as Exhibit 2 is a true and correct copy of The New Wage and

Hour Law, published by The Bureau of National Affairs, Inc. (1949). I caused this document to procured by staff working under my direction by searching the widely used database, HeinOnLine.

4. Attached as Exhibit 3 is a true and correct copy of Fair Labor

Standards Act Amendments: Hearings on S. 49, etc., Before the Labor

Subcommittee of the Committee on Labor and Public Welfare, 80th Cong. (1948).

4 (134 of 135) Case: 18-55682, 10/31/2018, ID: 11068173, DktEntry: 24-3, Page 6 of 7

I caused this document to procured by staff working under my direction by searching the widely used database, HeinOnLine.

I declare under penalty of perjury under the laws of the United States and the

State of California that the foregoing is true and correct.

Executed this 31st day of October, 2018, at Los Angeles, California.

/s/ Katherine M. Forster Katherine M. Forster, Esq. Attorney for Amicus Curiae

5 (135 of 135) Case: 18-55682, 10/31/2018, ID: 11068173, DktEntry: 24-3, Page 7 of 7

CERTIFICATE OF COMPLIANCE PURSUANT TO

DATED: October 31, 2018 MUNGER, TOLLES & OLSON LLP

By: /s/ Katherine KATHERINE M. FORSTER Attorneys for Amicus Curiae Chamber of Commerce of the United States of America