noninstitutional provider of health services (as defined in §§ 300.18 and 300.19 of this title);

(1) A firm which on the effective date of this regulation was engaged in construction as defined by section 11 of Executive Order No. 11588 (3 CFR, 1971 Comp., p. 147);

(iv) A firm, if the pay adjustments immediately preceding the effective date of this regulation, applicable to or affecting 50 percent or more of its employees, were set by a master employment or other employment contract which was negotiated on a joint or association basis or on an industry, area, group, or other similar basis and which covered more than 60 employees;

(v) Pay adjustments applicable to or affecting those employees in firms otherwise exempt under this paragraph whose pay adjustments immediately preceding the effective date of this regulation were set or which are set at any time thereafter by a master employment or other employment contract described in subdivision (iv) of this subparagraph which covered more than 60 employees; or

(vi) Effective July 17, 1972, a firm which in its most recent fiscal year derived more than $100,000 of its sales or revenues from or by the sale or brokerage of lumber, plywood, veneer, millwork, and structural wood members and associated wood products such as hardboard and particle board.

(vii) Category I pay adjustments as defined in § 101.21(a) (3).

(3) Determination of average number of employees. The average number of employees for firms in existence on or before December 31, 1971, shall be computed by dividing the sum of the number of employees employed in the pay periods which included June 30, September 30, and December 31, 1971, and March 31, 1972, by the number of such pay periods for which any such firm was in existence.

(b) Applicability—firms coming into existence on or after January 1, 1972. (1) General. Subject to the provisions of subparagraphs (2) and (3) of this paragraph, price and pay adjustments (but not rent increases or adjustments) of any firm coming into existence on or after January 1, 1972, including a local government, with an average of 60 or fewer employees (determined as provided in subparagraph (3) of this paragraph) are exempt from and not included in the coverage of this title.

(2) Exemption not applicable. The exemption provided for in subparagraph (1) of this paragraph shall not be applicable to:

(1) A firm which at any time during its first four calendar quarters after March 31, 1972, was classified as a price category I or II firm under § 101.11 or § 101.13.

(ii) A firm which at any time during its first four calendar quarters after March 31, 1972, was an institutional or noninstitutional provider of health services (as defined in §§ 300.18 and 300.19 of this title):

(iii) A firm which at any time during its first four calendar quarters after March 31, 1972, was engaged in construction as defined by section 11 of Executive Order No. 11588 (3 CFR 1971 Comp., p. 147):

(iv) A firm, if the pay adjustments at any time during its first four calendar quarters after March 31, 1972, applicable to or affecting 50 percent or more of its employees, were set by a master employment or other employment contract which was negotiated on a joint or association basis or on an industry, area, group or other similar basis and which covered more than 60 employees:

(v) Pay adjustments applicable to or affecting those employees in firms otherwise exempt under this paragraph whose pay adjustments immediately preceding the effective date of this regulation were set or which are set at any time thereafter by a master employment or other employment contract described in subdivision (iv) of this subparagraph which covered more than 60;

(vi) A firm which is deemed to have an average of more than 60 employees in any calendar quarter in its first four calendar quarters, including its fourth calendar quarter, after March 31, 1972;

or

(vii) A firm which at any time during: (a) Its first calendar quarter after March 31, 1972, derived more than $25,000 of its sales or revenues from or by the sale or brokerage of lumber, plywood, veneer, millwork, and structural wood members and associated wood products such as hardboard and particle board;

(b) Its first and second calendar quarters after March 31, 1972, derived more than $50,000 of its sales or revenues from or by the sale or brokerage of lumber, plywood, veneer, millwork, and structural wood members and associated

wood products such as hardboard and particle board;

(c) Its first, second, and third calendar quarters after March 31, 1972, derived more than $75,000 of its sales or revenues from or by the sale or brokerage of lumber, plywood, veneer, millwork, and structural wood members and associated wood products such as hardboard and particle board; or

(d) Its first calendar year after March 31, 1972, derived more than $100,000 of its sales or revenues from or by the sale or brokerage of lumber, plywood, veneer, millwork, and structural wood members and associated wood products such as hardboard and particle board.

(viii) Category I pay adjustments as defined in § 101.21(a) (3).

(3) Determination of average number of employees. The average number of employees for firms coming into existence on or after January 1, 1972, shall be computed as follows:

(i) For its first calendar quarter after March 31, 1972, the average number of employees shall be deemed to be 60 or fewer until such time as the number of employees in that first calendar quarter after March 31, 1972, exceeds 60:

(ii) If the firm was deemed to have an average of 60 or fewer employees in the pay period which included the last day of its first calendar quarter after March 31, 1972, it shall be deemed to have 60 or fewer employees during its second calendar quarter after March 31, 1972;

(iii) A firm shall compute its average number of employees for its third calendar quarter after March 31, 1972, by dividing by two the sum of the number of employees employed in the pay period which included the last day of its first two calendar quarters after March 31, 1972;

(iv) A firm shall compute its average number of employees for its fourth calendar quarter after March 31, 1972, by dividing by three the sum of the number of employees employed in the pay period which included the last day of its first three calendar quarters after March 31, 1972; and

(v) If the firm's average number of employees was deemed to be 60 or fewer for its first four calendar quarters after March 31, 1972, its average number of employees shall be permanently established for the purpose of this paragraph

by dividing by four the sum of the number of employees employed in the pay period which included the last day of its first four calendar year quarters after March 31, 1972.

The

(c) Retroactive adjustments. exemption provided for in paragraphs (a) and (b) of this section shall operate prospectively from the effective date of this regulation. Except to the extent allowable under the provisions of Chapters II and III of this title, the exemption shall not operate to permit either a retroactive pay adjustment for work performed or a retroactive price adjustment for the sale of or contract to sell goods or services while the pay adjustments and price adjustments of the firm were under the coverage of this title. (d) Definitions:

(1) "Employee" means any person residing in and employed in the several States or the District of Columbia for whom an employer is required to pay taxes imposed pursuant to the Federal Insurance Contributions Act, 1939, as amended, 26 U.S.C. sec. 3101, et seq. (FICA), and any person otherwise excluded from FICA coverage, who (i) performs services for any firm as an agentdriver, or commission-driver engaged in the distribution of milk for his principals; or (ii) is defined as an "employee" in 26 U.S.C. sec. 3121(d).

(2) "Local government" includes any town, village, city, or similar entity which was incorporated by authority of the State and which has and exercises local legislative powers, and any county, town, township, or similar entity which is a subdivision of the State or county and which possesses and exercises some powers of local self-government; any school district which is an independent governmental unit and any special district classified as an independent govvernmental unit created for the sole purpose of performing one or more municipal functions. An "independent governmental unit" is one which meets the criteria for classifying governmental units used by the Department of Commerce, U.S. Bureau of the Census, in the 1967 Census of Governments, "Governmental Organizations," beginning at p. 13.

[37 F.R. 8940, May 3, 1972, as amended at 37 F.R. 9457, May 11, 1972; 37 F.R. 14312, June 19, 1972; 37 F.R. 14754, July 25, 1972; 37 F.R. 16502, Aug. 15, 1972; 37 F.R. 19799, Sept. 22, 1972]

Subpart F-Special Provisions

§ 101.101 Special provisions applicable from November 14, 1971-January 31, 1972.

Notwithstanding the provisions of § 100.21, pay adjustments scheduled to take effect between November 14, 1971, and January 31, 1972, pursuant to existing contracts or pay practices in effect before November 14, 1971, need not be prenotified to, or approved by, the Pay Board, but must be reported to the Pay Board in accordance with its regulations and will be otherwise subject to such regulations. The provisions of this section shall not apply to pay adjustments which are subject to the provisions of Executive Order Number 11588, March 29, 1971. § 101.102 Special provisions applicable to retroactive and deferred pay adjustments provided prior to August 15, 1971.

(a) Nothing in this title shall limit any pay adjustment (including any insurance or other fringe benefit offered in connection with an employment contract or an established pay practice) scheduled to take effect after November 13, 1971, and to be paid pursuant to an employment contract executed, or a pay practice established, prior to August 15, 1971 to a level below that agreed or established in such contract or practice, unless the Pay Board determines the increase provided in such contract or by such practice is unreasonably inconsistent with standards issued pursuant to section 203(b) of the act.

(b) Nothing in this title shall preclude any pay adjustment (including any insurance or other fringe benefit offered in connection with an employment contract or an established pay practice) scheduled to take effect prior to November 14. 1971, pursuant to an employment contract executed, or a pay practice established, prior to August 15, 1971 which was not paid as a result of any regulation issued pursuant to the Act, unless the Pay Board determines that the pay adjustment provided in such contract or by such practice is unreasonably inconsistent with standards issued pursuant to section 203(b) of the act.

(c) In addition to paragraphs (b) and (c) of this section, the Pay Board shall promptly take such action as may be necessary to require the payment of any pay adjustment (including any insurance or other fringe benefit offered in connec

tion with an employment contract or established pay practice) which has been or in the absence of this section would be, withheld under the authority of the Act, if the Pay Board determines:

(i) Such pay adjustment was provided for by law, contract or an established pay practice prior to August 15, 1971; and

(ii) Prices have been advanced, productivity increased, taxes have been raised, appropriations have been made, or funds have otherwise been raised or provided for in order to cover such increases.

§ 101.103 Pay adjustments required under the Fair Labor Standards Act, wage determinations made by an agency in the executive branch and certain employee incentive plans. (a) Notwithstanding the provisions of this title, this title shall not be exercised to preclude the payment of any pay adjustment:

(1) Required under the Fair Labor Standards Act of 1938, as amended, or effected as a result of enforcement action under such act; or

(2) Required in order to comply with wage determinations made by any agency in the executive branch of the Government pursuant to law for work:

(1) Performed under contracts with, or to be performed with financial assistance from, the United States, or the District of Columbia, or any agency or instrumentality thereof, or

(ii) Performed by aliens who are immigrants or who have been temporarily admitted to the United States pursuant to the Immigration and Nationality Act;

Subpart G-Sanctions

§ 101.201 Sanctions; criminal fine and civil penalty.

(a) Whoever willfully violates any order or regulation under this title shall be subject to a fine of not more than $5,000 for each violation.

(b) Whoever violates any order or regulation under this title shall be subject to a civil penalty of not more than $2,500 for each violation.

§ 101.202 Injunctions and other relief.

Whenever it appears to the Council that any firm has engaged, is engaged, or is about to engage in any acts or practices constituting a violation of any order or regulation under this title, the Council may request the Attorney General to bring an action in the appropriate district court of the United States to enJoin such acts or practices. The relief sought may include a mandatory injunction commanding any person to comply with any such order or regulation and restitution of moneys received in violation of any such order or regulation.

92-210, 85 Stat. 743; Executive Order 1161, as amended.

SOURCE: The provisions of this Part 102 appear at 37 FR. 2478, Feb. 1, 1972, unless otherwise noted.

Subpart A-General

§ 102.1 Purpose and scope.

This part (a) grants authority to the Assistant Director for Congressional and Public Affairs of the Cost of Living Council to make records available for public inspection in accordance with the provisions of this part; (b) establishes proce dures pursuant to the Freedom of Information Act, 81 Stat. 54, 5 U.S.C. 552 for the public inspection of identifiable records in the custody and control of the Cost of Living Council during the postfreeze Economic Stabilization Program, except those excluded by the Act; (c) prescribes the time and place at which such records will be made available, and (d) sets the fees to be paid for copies of such records.

(a) The Assistant Director for Congressional and Public Affairs of the Cost of Living Council (hereinafter referred to as the Assistant Director) is hereby delegated the authority to receive, review, identify, determine the availability of, and approve or disapprove requests for records in the custody and control of the Cost of Living Council in accordance with the provisions of this part.

(b) The Assistant Director, in his discretion, is specifically authorized to divulge or disclose to a complainant, or to an individual with specific knowledge of a complaint, the nature and result of the investigation of said complaint in circumstances where no violation has been found.

(c) The Chairman of the Council, or his delegate, is authorized at his discretion to make any record enumerated in § 102.4 available for inspection when he deems disclosure to be in the public interest and disclosure is not otherwise prohibited by law.

[37 F.R. 2478, Feb. 1, 1972, as amended at 37 F.R. 16502, Aug. 15, 1972]

§ 102.4 Records not subject to disclosure. This part does not apply to records which are:

(a) Specifically required by Executive order to be kept secret in the interest of the national defense or foreign policy;

(b) Related solely to the internal personnel rules and practices of an agency;

(c) Specifically exempted from disclosure by statute including information which contains or relates to trade secrets or other matters referred to in section 1905 of title 18 of the United States Code. (d) Interagency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency;

(e) Personnel and medical files and similar files, the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

(f) Investigatory files compiled for law enforcement purposes except to the extent available by law to a party other than an agency, and except as authorized in § 102.3(b).

(g) Contained in or related to examination, operating, or condition reports prepared by, on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions; or

(h) Geological and geophysical information and data, including maps, concerning wells.

§ 102.5 Authentication of records.

(a) The Assistant Director will designate an official custodian who will have authority to attest or otherwise authenticate copies of records made available under the provisions of this part.

(b) The Assistant Director and the official custodian may issue such statements, certificates, or other documents as may be required to show that after a diligent search, no record or entry of the tenor specified in a request has been found to exist. (See Rule 44, Federal Rules of Civil Procedure.)

8 102.6 Records of other agencies.

(a) A person who requests a record originating in another agency but currently in the custody of the Cost of Living Council shall submit his request to the other agency.

(b) Where the originating agency consents, in writing, to make the record available, it will be made available in

Each request submitted in accordance with 88 102.10 through 102.13 will be reviewed by the Assistant Director to determine whether the record requested is an identifiable record within the meaning of 5 U.S.C. 552(a) (3).

(a) If the Assistant Director determines that the record is not identifiable, he will advise the person filing the request and give him a reasonable opportunity to provide additional information to facilitate the identification of the record.

(b) Where the Assistant Director determines that the record is identifiable but should be withheld from inspection in the public interest, he will advise the person filing the request, in writing, that the request has been denied under the provisions of § 102.4.

§ 102.21 Availability of records.

(a) An identifiable record which has been determined by the Assistant Director to be available for inspection, will be made available for examination in the Office of the Assistant Director.

(b) Manual, typewritten, or other copies may be made freely by the person