(a) Scope of Regulation. 830 CMR 64H.1.8 sets forth the rules for the exemption from the sales and use tax on retail sales of certain tangible personal property for the 2018 sales tax holiday.
(b) Background. Legislation provides for a Massachusetts “sales tax holiday weekend,” i.e., two consecutive days during which most purchases made by individuals for personal use will not be subject to Massachusetts sales or use taxes. St. 2018, c. 228. The legislation provides that the sales tax holiday will occur on August 11 and 12, 2018 and on those days, non-business sales at retail of single items of tangible personal property costing $2,500 or less are exempt from sales and use taxes, subject to certain exclusions.
For the purposes of the 2018 sales tax holiday, tangible personal property shall not include telecommunications services, tobacco products subject to the excise imposed by M.G.L. c. 64C, marijuana or marijuana products, as defined in M.G.L. c. 94G, § 1, gas, steam, electricity, motor vehicles, motorboats, meals or a single item the price of which is in excess of $2,500.
(d) Effective Date. 830 CMR 64H.1.8 is effective for all retail sales occurring on August 11 and 12, 2018.
Commissioner. The Commissioner of Revenue or the Commissioner's duly authorized representative.
Retail Sale. Retail sale as defined in M.G.L. c. 64H, § 1.
Sale. Sale as defined in M.G.L. c. 64H, § 1.
Sales Price. Sales price as defined in M.G.L. c. 64H, § 1.
Sales Tax. The sales tax imposed pursuant to M.G.L. c. 64H, § 2 or the use tax imposed pursuant to M.G.L. c. 64I, § 2.
Sales Tax Holiday. Two consecutive days, August 11 and 12, 2018, during which most purchases made by individuals for personal use will not be subject to Massachusetts sales or use taxes.
Tangible personal property. Tangible personal property as defined in M.G.L. c. 64H, § 1.
Vendor. Vendor as defined in M.G.L. c. 64H, § 1 and M.G.L. c. 64I, § 1.
(a) General Rule. During the sales tax holiday, most purchases by individuals of single items of tangible personal property costing $2,500 or less are exempt from sales and use taxes, subject to certain exclusions as explained in 830 CMR 64H.1.8. For all purchases of tangible personal property eligible for the sales tax holiday exemption, transfer of possession or payment in full for the property must occur on one of the days of the sales tax holiday. Prior sales and layaway sales are not eligible for the sales tax holiday. Purchases exempt from the sales tax under M.G.L. c. 64H are also exempt from use tax under M.G.L. c. 64I. Therefore, eligible items of tangible personal property purchased on the Massachusetts sales tax holiday from out-of-state vendors for use in Massachusetts are exempt from M.G.L. c. 64I.
(b) Non-Business Sales. The sales tax holiday exemption applies to sales of tangible personal property bought by individuals for personal use only. Purchases by corporations or other businesses and purchases by individuals for business use remain taxable.
(c) Sales Price Threshold For Exemption Eligibility. When the sales price of any single item is greater than $2,500, sales tax is due on the entire price charged for the item. The sales price is not reduced by the threshold amount. For example, if an item is sold for $3,000, the entire sales price of the item is taxable, not just the amount that exceeds $2,500.
Clothing Exception: Under M.G.L. c. 64H, § 6(k) there is no sales tax on any article of clothing unless the sales price exceeds $175; in that case, only the increment over $175 is subject to tax. If, on the sales tax holiday, the price of an article of clothing exceeds the threshold, the first $175 may be deducted from the amount subject to tax. The $2,500 threshold amount is not increased by $175.
a. A customer buys a suit during the sales tax holiday for $600. No tax is due.
b. A customer buys a wedding dress during the sales tax holiday for $2,550. Tax is due on $2,375 ($2,550 - $175).
Coupons and Discounts. If a store coupon or discount provided by a vendor reduces the sales price of the property, the discounted sales price determines whether the sales price is within the sales tax holiday price threshold of $2,500 or less. If a store coupon or discount applies to the total amount paid by a purchaser rather than to the sales price of a particular item and the purchaser has purchased both eligible property and taxable property, the vendor should allocate the discount on a pro rata basis to each article sold.
Example: A furniture store customer has a coupon for 20% off her entire bill. She purchases a dining room table for $1,800, and a sofa for $3,500. The total discount available is $1,060 ($5,300 x .20), of which $360 is attributable to the table ($1,800 x .20), and $700 is attributable to the sofa ($3,500 x .20). No tax is due on the sale of the table. Tax of $175 is due on the sales price of the sofa, $2,800 ($3,500 - $700), as even its discounted price exceeds the $2,500 threshold.
Rebates. A rebate is a refund of an amount of money by the manufacturer of a product to the retail purchaser of the product. If a vendor sells tangible personal property to a customer who applies a manufacturer's rebate to reduce the sales price at the time of the sale, the rebate is generally treated as a cash discount and is excluded from the sales price. The discounted sales price determines whether the sales price is within the sales tax holiday price threshold of $2,500 or less.
If a vendor sells tangible personal property to a customer who will receive a rebate after the sale (e.g., by mailing a coupon to the manufacturer), the full purchase price of the property determines whether the sales price is within the sales tax holiday price threshold of $2,500 or less, and tax must be charged on the full purchase price if it is over $2,500.
If a vendor offers a customer a cash discount upon the purchase of tangible personal property and the customer also receives a rebate from the manufacturer of the property after the sale, only the cash discount given by the vendor is excluded from the sales price for purposes of the sales tax holiday exemption. The amount of the manufacturer's rebate is not deducted from the sales price.
Multiple Items on One Invoice. Where a customer is purchasing multiple items in a single transaction during the sales tax holiday, separate invoices do not need to be prepared for each item. As long as each individual item is $2500 or less, there is no upper limit on the tax-free amount each customer may purchase.
Example: A customer purchases a television, a stereo receiver, and a computer. The three separate items costing $1,500, $1,200 and $2,000 can be rung up together, all tax free.
Bundled Transactions. When several items are offered for sale at a single price, the entire package is exempt if the sales price of the package is $2,500 or less. Items that are priced separately and are to be sold as separate articles will qualify for the sales tax holiday exemption if the price of each article is $2,500 or less.
Example 1: A computer package including a CPU, keyboard, monitor, mouse, and printer with a single sales price of $3,500 would not qualify for the sales tax holiday exemption because the single sales price of the package ($3,500) is more than the sales tax holiday threshold amount of $2,500.
Example 2: A customer purchases a personal computer for $3,000, and a computer printer for $200, each of which is priced separately. The purchase of the personal computer will not qualify for the exemption because the sales price ($3,000) is in excess of the sales tax holiday threshold amount of $2,500. However, since the sales price of the computer printer ($200) is less than $2,500, the printer would be exempt from tax.
Articles normally sold as a single unit must continue to be sold in that manner. Such articles cannot be priced separately and sold as individual items in order to obtain the sales tax holiday exemption.
(d) Rentals. Generally, rentals for thirty days or less of tangible personal property other than motor vehicles and motorboats are eligible for the sales tax holiday exemption, even if the rental period covers days before or after the sales tax holiday, providing payment in full is made during the sales tax holiday. The sales tax holiday does not apply to rentals or leases of tangible personal property of any type if the term of the rental or lease contract is longer than thirty days.
Unless otherwise indicated, all sales of motor vehicles, motorboats, meals, telecommunications services, gas, steam, electricity, tobacco products, marijuana or marijuana products and of any single item whose price is in excess of $2,500, do not qualify for the sales tax holiday exemption and remain subject to tax, as further provided in 830 CMR 64H.1.8(4)(a)-(h).
(a) Motor Vehicles. Sales of motor vehicles are not eligible for the sales tax holiday. A “motor vehicle” means a motorized, self-propelled vehicle which is constructed and designed for transportation or travel over a land surface, including “low speed vehicles” and “limited use vehicles”, but not including motorized bicycles. See M.G.L. c. 90. A “motor vehicle” also means “snow vehicle” and “recreation vehicle” as defined in M.G.L. c. 90B, § 20. See 830 CMR 64H.25.1, Motor Vehicles and M.G.L. c. 64H, § 26. Rentals of motor vehicles are also not eligible for the holiday; see 830 CMR 64H.1.8(3)(d).
(b) Motorboats. Sales of motorboats, including jet skis, are not eligible for the sales tax holiday. A motorboat is any vessel or watercraft propelled by machinery, such as an inboard or outboard motor, whether or not such machinery is the principal source of propulsion. See M.G.L. c. 90B, § 1. Rentals of motorboats are also excluded from the sales tax holiday; see 830 CMR 64H.1.8(3)(d). Generally, the sales tax holiday will apply to purchases of canoes, kayaks, rowboats, and other types of watercraft with no mechanical propulsion, provided that the sales price is $2,500 or less.
(c) Meals. Sales of meals are not eligible for the sales tax holiday. “Meals” are defined in c. 64H as “any food or beverage, or both, prepared for human consumption and provided by a restaurant, where the food or beverages is intended for consumption on or off the restaurant premises, and includes food or beverages sold on a ‘take out’ or ‘to go’ basis, whether or not they are packaged or wrapped and whether or not they are taken from the premises of the restaurant.” M.G.L. c. 64H, § 6(h); 830 CMR 64H.6.5, Sales Tax on Meals.
(d) Telecommunications services. “Telecommunications services” are defined in M.G.L. c. 64H as “any transmission of messages or information by electronic or similar means, between or among points by wire, cable, fiber optics, laser, microwave, radio, satellite or similar facilities but not including cable television.” M.G.L. c. 64H, § 1. Sales of prepaid calling arrangements and cards are not eligible for the sales tax holiday. Telecommunications equipment, such as a telephone or cell phone purchased for nonbusiness use, is eligible for the sales tax holiday.
(e) Gas, steam and electricity. Sales of gas, steam and electricity are not eligible for the sales tax holiday. The term “gas” refers to natural gas and not gasoline.
(f) Tobacco Products. “Tobacco products” includes products subject to the excise under M.G.L. c. 64C such as cigarettes, cigars, and smoking and smokeless tobacco.
(g) Marijuana or Marijuana products. “Marijuana” includes all parts of any plant of the genus Cannabis, with certain exceptions, as defined in M.G.L. c. 94G, § 1. Marijuana also includes all “marijuana products” as defined in M.G.L. c. 94G, § 1 and 935 CMR 500.002: Definitions. Such marijuana products include edible products, beverages, topical products, ointments, oils and tinctures. See 830 CMR 64N.1.1, Marijuana Retail Taxes.
(h) Tangible Personal Property sold for $2,500.00 or more. Any single item of tangible personal property the price of which exceeds $2,500 does not qualify for the sales tax holiday exemption and remains subject to tax.
(a) Prior Sales and Orders. A vendor may not void or otherwise rewrite or re-book, either manually or by use of software, a sale that has taken place before August 11, 2018 for the purpose of bringing the transaction under the sales tax holiday rules. Any transaction where a purchaser places an order and makes a deposit, prepayment or binding promise to pay for an item of tangible personal property prior to August 11, 2018 does not qualify for the sales tax holiday.
(b) Layaway Sales. A layaway sale is a transaction in which property is set aside for future delivery to a customer who makes a deposit, agrees to pay the balance of the purchase price over a period of time and receives the property when the last payment is made. Layaway sales do not qualify for the sales tax holiday, even if the last required payment (or payments necessary to complete the transaction) is made on August 11 or 12, 2018.
(c) Special Order Items; Transfer of Possession after Sales Tax Holiday. Special order items such as furniture are eligible for the sales tax holiday so long as they are ordered and paid in full on the sales tax holiday weekend, and the cost of each item is $2,500 or less, even if delivery is made at a later date. Generally, a customer pays for an item when: (1) the vendor initially receives cash, a check, or a money order; (2) the vendor initially processes a credit card or debit card transaction; or (3) the buyer and vendor enter into financing arrangements with a third party, including an affiliated entity (but excluding seller financing where the seller extends credit to the customer). A prior special order purchase with a deposit paid before August 11, 2018 will not qualify for the holiday, even if the retail customer pays the entire remaining balance due on August 11 or 12, 2018.
(d) Rain checks. When a customer receives a rain check because an item on sale was not available, property bought with the use of the rain check will qualify for the exemption regardless of when the rain check was issued if the rain check is used on the sales tax holiday weekend. Property purchased after the sales tax holiday using a rain check issued during the sales tax holiday weekend is not eligible for the sales tax holiday exemption.
(e) Exchanges. If a customer purchases an item of eligible property during the sales tax holiday, but later exchanges the item for an identical or similar eligible item, for the same price (“an even exchange”), no tax is due even if the exchange is made after the sales tax holiday.
If a customer orders an item of eligible property over the Internet, the item is exempt if it is ordered and paid for on August 11 or 12, 2018 Eastern Daylight Time (EDT). Generally, a customer pays for an item when the vendor receives a credit card number, a debit authorization, a check, or a money order. The actual delivery can occur after the holiday period.
Example: A customer orders a computer over the Internet with a sales price of $2,000 and charges the sale to his credit card at 1:00 p.m. (EDT) on August 11 or 12, 2018; the computer has a delivery date of September 20, 2018. The sale is exempt since the computer was ordered and paid for during the sales tax holiday.
(a) Participation. All Massachusetts businesses normally making taxable sales of tangible personal property and that are open to conduct business on August 11 or 12, 2018 must participate in the sales tax holiday. Out-of-state vendors registered to collect Massachusetts sales and use taxes must also participate in the sales tax holiday.
(b) Erroneous Collection. Any sales or use tax erroneously or improperly collected by a vendor on August 11 or 12, 2018 must be remitted to the Commissioner. Customers who are erroneously charged sales tax by a vendor for an exempt purchase should take their tax paid receipt to the vendor to obtain a refund. If the vendor has already remitted the erroneously collected tax to the Commissioner, the vendor may file an amended return upon satisfactory evidence that the vendor has credited or refunded the tax to the purchaser in accordance with the time limitations and other requirements in 830 CMR 62C.26.2, Amended Returns.
(c) Requirement of Nonbusiness Use by the Purchaser. Normal business records showing the date of sale, item(s) purchased, and selling price must be kept by the vendor. Purchases made during the sales tax holiday must be for nonbusiness use. Purchasers paying for tangible personal property with business credit cards or checks must be charged tax on the items purchased.
(d) Returns. Generally, sales tax may only be refunded to a retail customer on returns within 90 days of the sale. M.G.L. c. 64H, § 1. For the 90 day period following August 11 or 12, 2018, when a customer returns an item that qualified for the sales tax holiday exemption, the vendor may not credit or refund sales tax to the retail customer unless (1) the customer provides a receipt or invoice that shows the tax was paid or (2) the vendor’s records show that tax was paid. Vendors may set their own return policies. This requirement is not intended to change or extend a vendor’s return policy.
(e) Record Keeping. A vendor must maintain books and records in accordance with M.G.L. c. 62C, § 25, sufficient to substantiate taxable and tax-exempt sales made on the sales tax holiday. See 830 CMR 62C.25.1, Record Retention.
Vendors that back-date sales occurring after August 12, 2018 or that forward-date sales that occurred before August 11, 2018 in order to make them appear to qualify for the sales tax holiday, or otherwise improperly avoid collecting and remitting sales or use tax, may be subject to the tax evasion penalties of M.G.L. c. 62C, § 73. In addition, the Commissioner may apply the sham transaction doctrine under M.G.L. c. 62C, § 3A when determining whether vendors have properly followed the rules of 830 CMR 64H.1.8.


16 CFR § 1610.6 - Test procedure.
The test procedure is divided into two steps. Step 1 is testing in the original state; Step 2 is testing after the fabric has been refurbished according to paragraph (b)(1) of this section.
(a)Step 1 - Testing in the original state.
(1) Tests shall be conducted on the fabric in a form or state ready for use in wearing apparel. Determine whether the fabric to be tested is a plain surface textile fabric or a raised surface textile fabric as defined in § 1610.2 (k) and (l). There are some fabrics that require extra attention when preparing test specimens because of their particular construction characteristics. Examples of these fabrics are provided in paragraphs (a)(1)(i) through (vi) of this section along with guidelines for preparing specimens from these fabrics. This information is not intended to be all-inclusive.
(i)Flocked fabrics. Fabrics that are flocked overall are treated as raised surface textile fabrics as defined in § 1610.2(l). Flock printed fabrics (usually in a pattern and not covering the entire surface) shall be treated as plain surface textile fabrics as defined in § 1610.2(k).
(ii)Cut velvet fabrics. Cut velvet fabrics with a patterned construction shall be considered a raised surface textile fabric as defined in § 1610.2(l).
(iii)Metallic thread fabrics. Metallic thread fabrics shall be considered plain surface textile fabrics provided the base fabric is smooth. The specimens shall be cut so that the metallic thread is parallel to the long dimension of the specimen and arranged so the test flame impinges on a metallic thread.
(iv)Embroidery. Embroidery on netting material shall be tested with two sets of preliminary specimens to determine the most flammable area (which offers the greatest amount of netting or embroidery in the 150 mm (6 in.) direction). One set of netting only shall be tested and the other set shall consist mainly of embroidery with the specimens cut so that the test flame impinges on the embroidered area. Test the most flammable area according to the plain surface textile fabric requirements. The full test shall be completed on a sample cut from the area that has the fastest burn rate.
(v)Burn-out patterns. Flat woven constructions with burn-out patterns shall be considered plain surface textile fabrics as defined in § 1610.2(k).
(vi)Narrow fabrics and loose fibrous materials. Narrow fabrics and loose fibrous materials manufactured less than 50 mm (2 in) in width in either direction shall not be tested. If a 50 mm by 150 mm (2 in by 6 in) specimen cannot be cut due to the nature of the item, i.e. hula skirts, leis, fringe, loose feathers, wigs, hairpieces, etc., do not conduct a test.
(i)Preliminary trials. Conduct preliminary trials to determine the quickest burning direction. The specimen size shall be 50 mm by 150 mm (2 in by 6 in). Cut one specimen from each direction of the fabric. Identify the fabric direction being careful not to make any identifying marks in the exposed area to be tested. Preliminary specimens shall be mounted and conditioned as described in paragraphs (a)(2)(ii) through (iv) of this section and then tested following the procedure in paragraph (c) of this section to determine if there is a difference in the burning characteristics with respect to the direction of the fabric.
(ii)Identify and cut test specimens. Cut the required number of test specimens to be tested (refer to § 1610.7(b)(1)). Each specimen shall be 50 mm by 150 mm (2 in by 6 in), with the long dimension in the direction in which burning is most rapid as established in the preliminary trials. Be careful not to make any identifying marks in the exposed area to be tested.
(iii)Mount specimens.Specimens shall be placed in the holders, with the side to be burned face up. Even though plain surface textile fabrics are not brushed, all specimens shall be mounted in a specimen holder placed on the carriage that rides on the brushing device to ensure proper position in the holder. A specimen shall be placed between the two metal plates of a specimen holder and clamped. Each specimen shall be mounted and clamped prior to conditioning and testing.
(iv)Condition specimens. All specimens mounted in the holders shall then be placed in a horizontal position on an open metal shelf in the oven to permit free circulation of air around them. The specimens shall be dried in the oven for 30 ±2 minutes at 105° ±3 °C (221° ±5 °F), removed from the oven and placed over a bed of anhydrous silica gel desiccant in a desiccator until cool, but not less than 15 minutes.
(v)Flammability test. Follow the test procedure in paragraph (c) of this section and also follow the test sequence in § 1610.7(b)(1).
(i)Preliminary trials. The most flammable surface of the fabric shall be tested. Conduct preliminary trials and/or visual examination to determine the quickest burning area. The specimen size shall be 50 mm by 150 mm (2 in by 6 in). For raised surface textile fabrics, the direction of the lay of the surface fibers shall be parallel with the long dimension of the specimen. Specimens shall be taken from that part of the raised-fiber surface that appears to have the fastest burn time. For those fabrics where it may be difficult to visually determine the correct direction of the lay of the raised surface fibers, preliminary tests can be done to determine the direction of the fastest burn time. For textiles with varying depths of pile, tufting, etc., the preliminary test specimens are taken from each depth of pile area to determine which exhibits the quickest rate of burning. A sufficient number of preliminary specimens shall be tested to provide adequate assurance that the raised surface textile fabric will be tested in the quickest burning area. Preliminary specimens shall be mounted and conditioned as described below and tested following the procedure in paragraph (c) of this section.
(ii)Identify and cut test specimens. Cut the required number of specimens (refer to § 1610.7(b)(3)) to be tested. Each specimen shall be 50 mm by 150 mm (2 in by 6 in), with the specimen taken from the direction in which burning is most rapid as established in the preliminary trials and/or visual examination. Be careful not to make any identifying marks in the exposed area to be tested.
(iii)Mount specimens. Prior to mounting the specimen, run a fingernail along the 150 mm (6 in) edge of the fabric not more than 6.4 mm (0.25 in) in from the side to determine the lay of the surface fibers. All specimens shall be mounted in a specimen holder placed on the carriage that rides on the brushing device. The specimens shall be mounted with the side to be burned face up and positioned so the lay of the surface fibers is going away from the closed end of the specimen holder. The specimen must be positioned in this manner so that the brushing procedure described in paragraph (a)(3)(iv) of this section will raise the surface fibers, i.e., the specimen is brushed against the direction of the lay of the surface fibers. The specimen shall be placed between the two metal plates of the specimen holder and clamped.
(iv)Brush specimens. After mounting in the specimen holder (and with the holder still on the carriage that rides on the brushing device) each specimen shall be brushed one time. The carriage is pushed to the rear of the brushing device, see Figure 7, and the brush, see Figure 8, lowered to the face of the specimen. The carriage shall be drawn forward by hand once against the lay of the surface fibers at a uniform rate. Brushing of a specimen shall be performed with the specimen mounted in a specimen holder. The purpose of the metal plate or “template” on the carriage of the brushing device is to support the specimen during the brushing operation. See Figure 9.
(v)Condition specimens. All specimens (mounted and brushed) in the holders shall be then placed in a horizontal position on an open metal shelf in the oven to permit free circulation of air around them. The specimens shall be dried in the oven for 30 ±2 minutes at 105° ±3 °C (221° ±5 °F) removed from the oven and placed over a bed of anhydrous silica gel desiccant in a desiccator until cool, but not less than 15 minutes.
(vi)Conduct flammability test. Follow the procedure in paragraph (c) of this section and follow the test sequence in § 1610.7(b)(3).
(b)Step 2 - Refurbishing and testing after refurbishing.
(1) The refurbishing procedures are the same for both plain surface textile fabrics and raised fiber surface textile fabrics. Those samples that result in a Class 3, Rapid and Intense Burning after Step 1 testing in the original state shall not be refurbished and shall not undergo Step 2.
Drying Temperature: 60-66 °C (140-150 °F).
Cool Down/Deodorization time: 5 minutes.
Samples shall be dry cleaned in a load that is 80% of the machine's capacity.
(B) If necessary, ballast consisting of clean textile pieces or garments, white or light in color and consisting of approximately 80% wool fabric pieces and 20% cotton fabric pieces, shall be used.
(ii)Laundering procedure. The sample, after being subjected to the dry cleaning procedure, shall be washed and dried one time in accordance with sections 8.2.2, 8.2.3 and 8.3.1(A) of AATCC Test Method 124-2006 “Appearance of Fabrics after Repeated Home Laundering” (incorporated by reference at § 1610.6(b)(1)(B)(iii)). Washing shall be performed in accordance with sections 8.2.2 and 8.2.3 of AATCC Test Method 124-2006 using AATCC 1993 Standard Reference Detergent, powder and wash water temperature (IV) (120° ±5 °F; 49° ±3 °C) specified in Table II of that method, and the water level, agitator speed, washing time, spin speed and final spin cycle specified for “Normal/Cotton Sturdy” in Table III of that method. A maximum wash load shall be 8 pounds (3.63 kg) and may consist of any combination of test samples and dummy pieces. Drying shall be performed in accordance with section 8.3.1(A) of that test method, Tumble Dry, using the exhaust temperature (150° ±10 °F; 66° ±5 °C) and cool down time of 10 minutes specified in the “Durable Press” conditions of Table IV.
(iii) AATCC Test Method 124-2006 “Appearance of Fabrics after Repeated Home Laundering,” is incorporated by reference. The Director of the Federal Register approves this incorporation by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy from the American Association of Textile Chemists and Colorists, P.O. Box 12215, Research Triangle Park, North Carolina 27709. You may inspect a copy at the Office of the Secretary, Consumer Product Safety Commission, Room 502, 4330 East West Highway, Bethesda, Maryland 20814 or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
(2)Testing plain surface textile fabrics after refurbishing. The test procedure is the same as for Step 1 - Testing in the original state described in paragraph (a)(1) of this section; also follow the test sequence § 1610.7(b)(2).
(3)Testing raised fiber surface textile fabrics after refurbishing. The test procedure is the same as for Step 1 - Testing in the original state as described in paragraph (a)(3) of this section; also follow the test sequence in § 1610.7(b)(4).
(1) The test chamber shall be located under the hood (or other suitable enclosure) with the fan turned off. Open the control valve in the fuel supply. Allow approximately 5 minutes for the air to be drawn from the fuel line, ignite the gas and adjust the test flame to a length of 16 mm ( 5/8 in), measured from its tip to the opening in the gas nozzle.
(2) Remove one mounted specimen from the desiccator at a time and place it in position on the specimen rack in the chamber of the apparatus. Thick fabrics may require adjustment of the specimen rack so that the tip of the indicator finger just touches the surface of the specimen.
(3) Adjust the position of the specimen rack of the flammability test chamber so that the tip of the indicator finger just touches the face of the mounted specimen.
(4) String the stop thread through the guides in the upper plate of the specimen holder across the top of the specimen, and through any other thread guide(s) of the chamber. Hook the stop weight in place close to and just below the stop weight thread guide. Set the timing mechanism to zero. Close the door of the flammability test chamber.
(5) Begin the test within 45 seconds of the time the specimen was removed from the desiccator. Activate the trigger device to impinge the test flame. The trigger device controls the impingement of the test flame onto the specimen and starts the timing device. The timing is automatic and stops when the weight is released by the severing of the stop thread.
(6) At the end of each test, turn on the hood fan to exhaust any fumes or smoke produced during the test.
(7) Record the burn time (reading of the timer) for each specimen, along with visual observation using the test result codes given in § 1610.8. If there is no burn time, record the visual observation using the test result codes. Please note for raised-fiber surface textile fabrics, specimens should be allowed to continue burning, even though a burn rate is measured, to determine if the base fabric will fuse.
(8) After exhausting all fumes and smoke produced during the test, turn off the fan before testing the next specimen.


§ 153-4 Water connection fees.
§ 153-5 Sewer connection fees.
§ 153-6 Fire service charges for sprinkler systems in all nondwelling structures.
§ 153-12 Prompt payment for services.
§ 153-13 Termination of service.
§ 153-14 Notice and contents.
§ 153-15 Service of notice of termination.
§ 153-16 Termination after hearing.
§ 153-18 Special proceeding/costs assessed.
§ 153-20 Purpose and finding.


text:
PEOPLE OF THE PHILIPPINES, Plaintiff-Appellee, v. VIRGIE ANDIZA y ORIA, Defendant-Appellant.
Expedito B. Yumul, for Defendant-Appellant.
1.	REMEDIAL LAW; APPEALS; FACTUAL FINDINGS OF THE TRIAL COURT, NOT DISTURBED ON APPEAL. — Factual findings of trial courts on the credibility of witnesses should not be disturbed because courts have the opportunity to observe the demeanor and conduct of the witnesses while they are testifying on the witness stand.
2.	ID.; EVIDENCE; PRESUMPTIONS; REGULARITY IN THE PERFORMANCE OF DUTY; PRESUMPTIONS APPLIED TO LAW ENFORCERS. — The principal prosecution witnesses were all law enforcers and are, therefore, presumed to have regularly performed their duty in the absence of proof to the contrary (People v. Agapito, No. 73786, October 12, 1987).
3.	ID.; ID.; WITNESSES; NON-PRESENTATION OF WITNESSES, NOT A SUPPRESSION OF TESTIMONY WHERE DECLARATIONS ARE MERELY CUMULATIVE. — Admittedly, Pat. Hernandez and the civilian informer would be highly competent witnesses, being, themselves, the poseurs-buyers; however, their testimonies are not indispensable in view of the declarations of not only one, but two other eyewitnesses. If presented, their testimonies would merely constitute cumulative evidence, thus, their non-presentation as witnesses does not mean suppression of testimony that is adverse to the prosecution (People v. Extra, No. L29205, July 30, 1976).
4.	ID.; ID.; ID.; PRESENTATION OF WITNESSES; A PREROGATIVE OF FISCAL. — The matter of presenting witnesses for the People is a prerogative of the prosecuting fiscal.
5.	ID.; ID.; ID.; ID.; ISSUE THEREON MAY NOT BE RAISED ON APPEAL WHERE DEFENSE FAILED TO ASK THE COURT TO REQUIRE THE WITNESS TO TESTIFY. — The defense could have requested the court below to issue subpoenas requiring the said eyewitnesses to testify, but as the defense apparently failed to do that, they cannot now argue that said eyewitnesses’ testimonies would have been adverse to the prosecution.
6.	ID.; ID.; ID.; INCONSISTENCIES ON MINOR DETAILS DO NOT SUBSTANTIALLY AFFECT THE FINDINGS OF GUILT BY THE TRIAL COURT. — Even if the purported contradictory statements (of Sgt. Raquidan regarding the markings of bill) were to be excluded, there still remains sufficient evidence to convict the appellant for "drug-pushing." In any case, as correctly pointed out by the Solicitor General, the matter of who actually placed the markings is a minor detail which cannot substantially affect the finding of guilt by the trial court.
7.	CRIMINAL LAW; DANGEROUS DRUGS ACT; POSSESSION OF MARIJUANA, INHERENT IN THE CRIME OF SELLING THEM. — Possession of marijuana is inherent in the crime of selling them (People v. de Jesus, Nos. L-71942-43, November 13, 1986 145 SCRA 521).
8.	ID.; PENALTY; SUBSIDIARY IMPRISONMENT; NOT IMPOSED WHEN PRINCIPAL PENALTY IS HIGHER THAN PRISION CORRECTIONAL. — The rule that when the principal penalty imposed is higher than prision correccional no subsidiary imprisonment shall be imposed upon the culprit (Art. 39 , Revised Penal Code).
The version put forward by the prosecution, and upheld by the trial court, 1 is as follows.
From the foregoing judgment of conviction, the appellant came to this Court.
In this case, there are no compelling reasons to depart from the general rule that factual findings of trial courts on the credibility of witnesses should not be disturbed because courts have the opportunity to observe the demeanor and conduct of the witnesses while they are testifying on the witness stand.
The appellant underscores the fact that Pat. Hernandez and the civilian informer were not made to take the witness stand, and maintains that their non-presentation rendered a fatal blow to the prosecution’s case. We do not agree. Admittedly, Pat. Hernandez and the civilian informer would be highly competent witnesses, being, themselves, the poseurs-buyers; however, their testimonies are not indispensable in view of the declarations of not only one, but two other eyewitnesses. If presented, their testimonies would merely constitute cumulative evidence, thus, their non-presentation as witnesses does not mean suppression of testimony that is adverse to the prosecution. 13 At any rate, the matter of presenting witnesses for the People is a prerogative of the prosecuting fiscal. In the instant case, there was no need to present Pat. Hernandez because the testimonies of Sgt. Raquidan and Pat. de la Cruz, together with those of Cpl. Romeo Consengco and the forensic chemist, Daisy Panganiban, were already clear, sufficient, and convincing. Besides, the defense could have requested the court below to issue subpoenas requiring the said eyewitnesses to testify, but as the defense apparently failed to do that, they cannot now argue that said eyewitnesses’ testimonies would have been adverse to the prosecution.
Q.	So you do not know if you are the one who placed the marking?
Besides the foregoing seeming inconsistency, no other discrepancy in the testimonies of the prosecution witnesses was raised in the brief of the Appellant.
Significantly, nowhere in the appellant’s brief is there any mention of Antonio Manuel who was arrested on the same occasion with the appellant In fact, the sworn statement of Manuel, 15 in which he categorically stated that he bought from the appellant the marijuana found in his wallet, was never controverted.
1.	Regional Trial Court of Angeles City, Branch LIX, Hon. Cancio C. Garcia, Presiding Judge.
2.	T.s.n., session of August 28, 1984, 22.
4.	T.s.n., session of July 10, 1984, 6.
6.	T.s.n., session of August 28, 1984, 17.
7.	T.s.n., session of September 17, 1984, 4-13.
8.	Decision, 4; Rollo, 24.
10.	T.s.n., session of September 17, 1984, 34.
11.	T.s.n., session of August 28, 1984, 29-30, 32.
12.	People v. Agapito, No. 73786, October 12, 1987, 6.
13.	People v. Extra, No. L-29205, July 30, 1976, 72 SCRA 199, citing People v. Sigayan, Et Al., Nos. L-18523-26, April 30, 1966, 16 SCRA 844; People v. Cristobal, No. L-13062, January 28, 1961, 1 SCRA 151; and People v. Escalona, No. L-13294, March 29, 1961, 1 SCRA 891.
14.	T.s.n., session of August 6, 1984, 7.
15. "Karugtong ng Salaysay ni Ginoong Antonio M. Manuel na kusang loob na ibinigay sa pagtatanong ni P/Cpl Romeo C. Consengco, dito sa tanggapang Narcotics Command, Angeles District Office, nitong ika-26 ng Enero 1984." Exhibit "M-1," Exhibits, 13.
16.	T.s.n., session of August 28, 1984, 24-26.
17.	T.s.n., session of September 17, 1984, 18.
19.	T.s.n., session of October 2, 1984, 19.
21.	Affidavit of Ricardo Policarpio, Exhibit "3," Exhibits, 41.
22.	T.s.n., session of September 17, 1984, 5.
23.	T.s.n., session of October 2, 1984, 32.
24.	People v. De Jesus, Nos. L-71942-43, November 13, 1986, 145 SCRA 521.
25.	Art. 39(3), Revised Penal Code.

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The present study was undertaken to document the existing animal rearing practices adopted by the farmers in Narmada district of Gujarat in India. In each of the four talukas comprising Narmada district, 25 animal keepers were selected randomly forming a total of 100 respondents. The study revealed that 48.00% of the respondents reared indigenous cattle along with buffaloes followed by 18.00% indigenous cattle only, 13.00% buffaloes only, 9.00% indigenous along with crossbred cattle, 5.00% crossbred cattle only, 4.00% crossbred cattle along with buffaloes and 3.00% indigenous cattle along with crossbred cattle and buffaloes. The indigenous cattle breeds of the region were Gir, Dangi and nondescript; and the breeds of buffaloes were Surti, Mehsana and nondescript. The milk yield of the indigenous cattle, reared by 68.00% of the farmers was less than 2 litres per day. Majority of the respondents reared medium sized herd dominated by indigenous cattle along with buffaloes. 46.00% of the respondents used mucus and bellowing together to identify estrous in animals followed by mucus discharge alone (38.00%), frequent urination (15.00%) and mounting (1.00%). 88.00% of the respondents got their animals inseminated within 12-18 h of heat detection. In buffaloes, 93.00% of the respondents observed calving interval (CI) of more than 15 months, 7.00% reported CI between 13-15 months. In buffaloes, 90.00% of the respondents observed dry period of more than 3 months, 9.00% between 2-3 months and 1.00% less than 2 months. 10.00% of the respondents practised full hand method of milking, 3.00% stripping and 87.00% knuckling. It was concluded that indigenous cattle and buffaloes were important species of livestock in Narmada district of Gujarat which was lacking in proper health care practices like vaccination, deworming and treatment of livestock. The lack of scientific animal rearing causing poor animal production was the major impediment in good animal husbandry.
Sabapara, G. P., Desai, P. M., Singh, R. R. and Kharadi, V. B. (2012). Constraints of tribal dairy animal owners of South Gujarat. Indian Journal of Animal Sciences 82 (5):538-542.
Prakash, N., Singh, S. B. and Kumar, R. (2011). Adoption of improved livestock technologies by the tribal farmers of North-eastern hill region of India. Indian Journal of Animal Sciences 81 (9):988-989.
Kokate, K. D. and Tyagi, K. C. (1991). Dairy farming practices of tribal cattle owners. Indian Journal of Extension Education 27:70-75.
Brar, P. S. and Nanda, A. S. (2004). Impact of conventional managemental practices on reproductive performance of rural buffaloes. Indian Journal of Animal Reproduction 25 (2):94-96.
Chowdhary, N. R., Patel, J. B. and Bhakat, M. (2006). An overview of feeding, breeding and housing practices of dairy animals under milk co-operative system in Banaskantha district of North Gujarat region. Dairy Planner 5 (12):8-10.
Patel, N. B., Patel, J. B., Prajapti, K. B. and Suthar, B. N. (2005). Breeding practices in dairy animals of rural area under Patan district of North Gujarat. National Seminar on Recent advances in conservation of Biodiversity and augmentation of reproduction and production in farm animals. Pp: 252. 5-7 March 2005. Sardar Krushinagar Dantiwada Agricultural University, Sardar Krushinagar.
Sinha, R. R. K., Dutt, T., Singh, R. R., Singh, M. and Bhusan, B. (2010). Studies on breeding and health care management practices in rural, semi-urban and urban areas of Bareilly district of Uttar Pradesh. Indian Journal of Animal Production and Management 26 (1-2):11-15.
Malik, B. S., Meena, B. S. and Rao, S. V. N. (2005). Study of existing dairy farming practices in Uttar Pradesh. Journal of Dairying Foods & Home Science 24 (2):91-95.
Sabapara, G. P., Desai, P. M., Kharadi, V. B., Singh, R. R. (2010). Breeding and health care management status of dairy animals in the tribal area of South Gujarat. Indian Journal of Animal Sciences 80 (11):1148-1151.
Gupta, D. C., Suresh, A. and Mann, J. S. (2008). Management practices and productivity status of cattle and buffaloes in Rajasthan. Indian Journal of Animal Sciences 78 (7):769-774.
Jagdale, S. D., Patil, R. L., Atkare, V. G. and Deshmukh, A. B. (2000). Adoption of recommended feeding and management practices of buffalo by dairy farmers. Indian Veterinary Journal 77 (7):624-626.
Rathore, R. S., Kachhwha, R. N. and Choudhary, V. K. (2009). Studies on existing management practices followed by the buffalo owners in Jhunjhunu district of Rajasthan. National symposium on organic livestock farming-global issues, trends and challenges. 26-28th February 2009. Kolkata. ISAPM. p. 33.
Pawar, B. K., Nalawade, T. H. and Jagtap, D. Z. (2006). Adoption of bovine breeding practices and constraints faced by tribal farmers of Pune district. Journal of Maharashtra agricultural University 31 (3):329-330.
Kalyankar, S. D., Chavan, C. D., Khedkar, C. D. and Kalyankar, S. P. (2008). Studies on management practices of buffaloes in different agro-climatic zones of Maharashtra. Indian Journal of Animal Research 42 (3):157-163.
Yadav, C. M., Bhimawat, B. S. and Khan, P. M. (2009). Existing breeding and healthcare practices of cattle in tribals of Dungarpur district of Rajasthan. Indian Research Journal of Extension Education 9 (1):36-38.
Mande, J. V. and Thombre, B. M. (2009). Adoption of cattle rearing practices by dairy cattle owners in Latur district. Journal of Dairying, Foods & Home Sciences 28 (3/4):176-180.
Swanepoel, F., Stroebel, A. and Moyo, S. (2010). The role of livestock in developing communities: Enhancing multifunctionality. African Sun Media.
Meena, M. S. and Chauhan, J. P. S. (1999). Awareness of improved dairy farming practices by farmers of Sawai Madhopur District. Journal of Dairying, Foods & Home Sciences 18 (1):58-60.
Aulakh, G. S., Yadav, J. S. and Singh, R. (2011). Knowledge level of dairy farmers regarding recommended buffalo management practices. Journal of Dairying, Foods & Home Sciences 30 (2):147-149.
Hegde, N. G. (2006). Livestock development for sustainable livelihood of small farmers. In Souvenir of the 39th Annual General Meeting and 48th National Symposium on “Energising Rural India – A Challenge to Livestock Industry. Compound Livestock Feed Manufacturers Association of India, Manesar, Haryana. August 26, pp. 50-63.
Manimaran, A. and Kamboj, M. L. (2014). Health. In: National code of practice for management of dairy animals in India. ICAR- National Dairy Research Institute, Karnal. Pp:49-61.
Kamboj, M. L. and Lathwal, S. S. (2014). Breeding. In: National code of practice for management of dairy animals in India. ICAR- National Dairy Research Institute, Karnal. Pp:5-8.
Dereje, K., Kebede, A., Abebe, N. and Tamiru Y. (2018). Isolation, Identification and Antimicrobial Susceptibility Test of Mastitis Causing Bacteria at Holeta Agricultural Research Center Dairy Farms. International Journal of Animal Science and Technology 2 (1): 6-13.
Radostits, O., Gay, C., Hinchcliffand, W. and Constable, D. (2007). Mastitis. In: Veterinary Medicine: A Text book of disease of cattle, sheep, pigs, goats, and horses 10th edition, Ballier, Tindall, London. Pp: 674-762.
Hamid, S. A. and Kamruzzaman, S. M. (2017) Effects of GnRH on Conception Rate at the Time of Artificial Insemination in Crossbred Dairy Cows. International Journal of Animal Science and Technology 1 (1):19-34.
Sarder, M. J. U. (2008). Occurrence of reproductive disorders in crossbred cows of north Bangladesh. Published in proceeding paper of 15th International Congress on Biotechnology and animal Reproduction, Bangladesh Agricultural University, Mymensingh, Bangladesh. Pp:74-75.

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[243 U.S. 302, 303] Messrs. Allan D. Cole, W. T. Cole, and H. W. Cole for plaintiff in error.
Messrs. E. L. Worthington, W. D. Cochran, Le Wright Browning, and Proctor K. Malin for defendants in error.
On March 26, 1902,-fifteen years since,-the plaintiff filed her petition in the circuit court of Greenup county, Kentucky, against the Chesapeake & Ohio Railway Company, a corporation organized under the laws of Virginia, hereinafter called the Virginia company, lessee, and the Maysville & Big Sandy Railroad Company, a corporation organized under the laws of Kentucky, hereinafter called the Kentucky company, the owner and lessor of the railway on which plaintiff's decedent, on March 15th, 1902, was run down by a passing train and so injured that he soon thereafter died.
In due time, the Virginia company filed a petition for removal of the cause to the circuit court of the United [243 U.S. 302, 304] States for the eastern district of Kentucky, in which petition it is alleged: that there is in the case a separable controversy which is wholly between citizens of different states, the petitioner, a corporation of Virginia, and the plaintiff, a citizen of Kentucky; that the Kentucky corporation is not a necessary or proper party to the cause, which can be determined between the Virginia company and the plaintiff without reference to the Kentucky company; and that the Kentucky company is 'wrongfully, fraudulently, and falsely' made a party for the sole purpose of preventing removal to the Federal court, without any intention on the part of the plaintiff of proving against it any of the acts of negligence alleged in the petition. It is charged that no cause of action is stated in the amended petition against the Kentucky company.
On May 24, 1905, the plaintiff filed a motion to remand the case to the state court, on the ground that the Federal court 'is without jurisdiction to hear and determine the cause,' which motion was overruled on the same day. Various consent continuances carried the case over for two and one-half years, until December 27, 1907, when the plaintiff filed a motion to set aside 'the order heretofore made denying her motion to remand the case,' and in support of this motion, on the same day, she filed an answer to the petition for removal which is, in substance, a detailed denial of all of the allegations of that petition.
On the 25th of the following May (1908) plaintiff's motion to reconsider the court's ruling denying her motion to remand the case was submitted, and thirty days given for filing a brief, but it was not decided until a year later, when, on May 24th, 1909, it was overruled. Again various continuances by consent caused the case to go over for three years more, until May 27th, 1912, when the plaintiff's motion to reconsider the court's action in overruling her motion to remand was again overruled. Then follow other continuances, aggregating two [243 U.S. 302, 305] years more, until, on May 25th, 1914, on motion of the defendant, the case was dismissed for want of prosecution, in an order which, four days later, was set aside, and again nothing was done for eighteen months, until December 15th, 1915, when the case was a second time dismissed for want of prosecution, in an order which was revoked on the 24th of the following July, at which time the former action of the court in overruling plaintiff's motion to remand the case was reaffirmed, and the plaintiff, having elected to stand on her motion to remand, and 'refusing to recognize the jurisdiction of the United States court or to proceed with the prosecution of her case therein,' upon motion, it was dismissed at plaintiff's costs.
The case is properly in this court, the order of the district judge being sufficient to take the place of the certificate required by 238 of the Judicial Code [36 Stat. at L. 1157, chap. 231, Comp. Stat. 1913, 1215]. Excelsior Wooden Pipe Co. v. Pacific Bridge Co. 185 U.S. 282 , 46 L. ed. 910, 22 Sup. Ct. Rep. 681; Herndon-Carter Co. v. James N. Norris, Son & Co. 224 U.S. 496, 498 , 56 S. L. ed. 857, 858, 32 Sup. Ct. Rep. 550.
The validity of the denial of the plaintiff's motion to remand the case, which is thus brought before us, must be determined upon the allegations of the amended petition and of the petition for removal ( Madisonville Traction Co. v. St. Bernard Min. Co. 196 U.S. 239, 245 , 49 S. L. ed. 462, 464, 25 Sup. Ct. Rep. 251), when tested by the laws of Kentucky ( Illinois C. R. Co. v. Sheegog, 215 U.S. 308 , 54 L. ed. 208, 30 Sup. Ct. Rep. 101; Chesapeake & O. R. Co. v. Cockrell, 232 U.S. 146, 153 , 58 S. L. ed. 544, 547, 34 Sup. Ct. Rep. 278). Fully recognizing this rule, the district court decided the motion on the face of the pleadings, and its reasons for refusal to remand the case, as stated in McAllister v. Chesapeake & O. R. Co. 85 C. C. A. 316, 157 Fed. 741, 744, 13 Ann. Cas. 1068, are, that the Kentucky company had lawful authority [243 U.S. 302, 306] to lease its railroad to the Virginia company (McCabe v. Maysville & B. S. R. Co. 112 Ky. 861, 66 S. W. 1054), that the allegation of plaintiff's amended petition that plaintiff's decedent was injured 'at or near a public crossing' is an admission that he was a trespasser on the railroad track at the time (Davis v. Chesapeake & O. R. Co. 116 Ky. 144, 75 S. W. 275); and that the lessor company is not liable for injury to a trespasser by the negligence of its lessee. These reasons were restated at length by the district judge when he denied the motion to reconsider his refusal to remand.
This conclusion of the district court, that the allegation of the amended petition that the deceased, 'at the time of the injuries complained of, was at or near a public crossing in the town of Fullerton,' is an admission that he was a trespasser at the time, is based, we think, upon an insufficient statement of the allegations of the amended petition, and upon much too narrow a view of the effect of the decisions of the Kentucky court of appeals as applied to the facts pleaded in this case.
That since before the year 1890 the Virginia company had been operating the line of railway owned by the Kentucky company under a lease 'which in no wise relieves the lessor from liability for the torts of the operating lessee,' and that, on March 15th, 1902, when plaintiff's decedent 'was at or near a public crossing, . . . a place in the town of Fullerton where numerous people were accustomed to be and travel,' as the defendants well knew, without fault on his part, and while in plain view of the agents and servants of the defendants, he was 'negligently and wantonly' run down and killed by a train operated by the defendant, the Virginia company. The negligence alleged is excessive speed of the train,- 50 miles an hour,-failure to keep proper lookout for travelers at such a place, and failure to give adequate signals or warnings or the approaching train. [243 U.S. 302, 307] In the case cited by the court in its opinion (Davis v. Chesapeake & O. R. Co. supra), the petition alleged that 'the intestate was run over and killed at or near a private crossing over the railroad track, between her garden and her home;' that it was 'not far' from public crossings to the east and west of her; and that the train was negligently running at 50 miles an hour, without any appropriate lookout being kept or signals given.
In considering this petition the court of appeals, saying that it must be taken most strongly against the pleader, decided that the allegation that the deceased was killed 'at or near a private crossing' must be construed as meaning that she was killed at a place on the track other than at the crossing, and that it is only at a public crossing that reckless speed or any failure to give signals amounts to negligence.
The differences between this decided case and the case at bar are obvious and vital,-a private crossing in the one, a public crossing in the other, and 'a place where numerous people were accustomed to be and travel' in the one case, and silence as to the extent of use in the other. We shall see the court of appeals laying sharp hold upon both of these distinctions when determining what the state law applicable to such cases is.
Whatever doubt there may have been before, as to what duty the operating railroad company owed to the plaintiff's decedent, was settled by the decision in Illinois C. R. Co. v. Murphy, 123 Ky. 787, 11 L.R.A.(N. S.) 352, 97 S. W. 729, in which the court of appeals, in a comprehensive survey of its prior decisions, formulates in two 'principles' or rules, the duty of the operating railroad company to persons crossing or walking along its tracks. The first of these is that in sparsely-settled districts, or where few people cross or walk along railroad tracks, such users are to be regarded as trespassers, to whom no duty is owed by [243 U.S. 302, 308] the company, except to keep from injuring them if it reasonably can, after their presence and peril shall have been discovered.
The second principle, and it is the one applicable to the case stated in the amended petition, is, that in more populous communities, or where many people are accustomed to cross or otherwise use railroad tracks, the duty of the company is 'to operate the train with the fact of the trespassers' presence in mind,-that is, at a speed which has the train under control, and keeping such a lookout as will enable the operatives to give timely warnings of its approach, as well as to stop it in case of necessity before injury has been inflicted upon the trespasser.' Legislation has not regulated the speed of trains in such (smaller) communities, and until it does each case must rest upon its own facts. 'Whether the speed is so great as to amount to negligence will be a fact to be determined by the jury, for the circumstances will necessarily vary, according to the population, the use of the track for passage by foot or vehicle travelers, the obstruction to the view, and so forth. . . .
Watson v. Chesapeake & O. R. Co. 170 Ky. 254, 185 S. W. 852, the last decision dealing with this subject, plainly is not intended to modify the rule we have thus seen so long established.
While these decisions of the court of appeals of Kentucky leave something to be desired in the definition of the distinction between 'trespassers' and 'licensees,' there can be no doubt that, regardless of the terms of designation used, the result of them is that the allegations of the amended petition in the case under consideration, if supported by appropriate testimony, would require that the case be sent to a jury under a proper charge of [243 U.S. 302, 310] the court, and that it was error for the trial court to hold that they did not state a cause of action as against the lessee (operating) company.
There remains only the question whether the amended petition states a cause of action against the lessor, the Kentucky company, and it is very clear that the decisions of the highest court of that state answer this question in the affirmative.
In McCabe v. Maysville & B. S. R. Co. (this same Kentucky corporation) 112 Ky. 861, 66 S. W. 1054, the court of appeals of Kentucky expressly decides that, under the lease of its line to the Virginia company, which was in effect when the action complained of occurred, the lessor company, notwithstanding the lease, continued liable to the public for the torts of its lessee in operating the leased railroad, holding that where both lessor and lessee were joined as defendants in a suit for causing the wrongful death of a man killed by an engine operated by the lessee, the liability was joint, and that a removal petition, not to be distinguished in substance and scarcely in form from the one filed by the Virginia company in this case, did not state a case of a separable controversy, justifying removal to the United States court. To this same effect, construing the Constitution and statutes of Kentucky, as applied to leases by other corporations, are Illinois C. R. Co. v. Sheegog, 126 Ky. 252, 103 S. W. 323, affirmed in 215 U.S. 308 , 54 L. ed. 208, 30 Sup. Ct. Rep. 101, and Louisville Bridge Co. v. Sieber, 157 Ky. 151, 162 S. W. 804. The plaintiff's decedent was not an employee of the Virginia company, and the rule of the cases cited is not modified by Swice v. Maysville & B. S. R. Co. 116 Ky. 253, 75 S. W. 278.
Since the amended petition states a joint cause of action against the Kentucky company and the Virginia company, the claim that there is a separable controversy in the case, justifying removal by the latter company, must fail, and since no facts are alleged in support of the [243 U.S. 302, 311] charge that the joinder of the two companies is fraudulent, except that it was made for the purpose of preventing removal to the Federal court, this claimed reason for removal must also fail (Illinois C. R. Co. v. Sheegog, supra, and Chesapeake & O. R. Co. v. Cockrell, 232 U.S. 146, 153 , 58 S. L. ed. 544, 547, 34 Sup. Ct. Rep. 278), and therefore the decision of the District Court is reversed and the case must be remanded to the state court.
The petition for removal of this case was filed on the 21st day of July, 1902, and now, fifteen years after, in directing that the case be remanded, we cannot fail to notice the many seemingly needless delays to which it has been subjected, and we direct that appropriate action be take to return it as promptly as possible to the state court.

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The Patent Act of 1790 was the United States' first patent statute. It was titled An Act to promote the progress of useful Arts, and passed on April 10, 1790. It granted the applicant the "sole and exclusive right and liberty of making, constructing, using and vending to others to be used" of his invention, for a period of fourteen years.— Excerpted from Patent Act of 1790 on Wikipedia, the free encyclopedia.
Chap. Ⅶ.—An Act to promote the progress of useful Arts.April 10, 1790.
Section 1.Patents for useful discoveries, how applied for, and granted.
for the department of war, and the Attorney General of the United States, setting forth, that he, she, or they, hath or have invented or discovered any useful art, manufacture, engine, machine, or device, or any improvement therein not before known or used, and praying that a patent may be granted therefor, it shall and may be lawful to and for the said Secretary of State,The Secretary of State, the Sec. of war, and the Attorney General, or any two of them, if they shall deem the invention, &c. useful and important, to cause letters patent to be issued. the Secretary for the department of war, and the Attorney General, or any two of them, if they shall deem the invention or discovery sufficiently useful and important, to cause letters patent to be made out in the name of the United States, to bear teste by the President of the United States, reciting the allegations and suggestions of the said petition, and describing the said invention or discovery, clearly, truly and fully, and thereupon granting to such petitioner or petitioners, his, her or their heirs, administrators or assigns for any term not exceeding fourteen years,Continuance of a patent. the sole and exclusive right and liberty of making, constructing, using and vending to others to be used, the said invention or discovery; which letters patent shall be delivered to the Attorney General of the United States to be examined, who shall, within fifteen days next after the delivery to him, if he shall find the same conformable to this Act,Attorney General to certify the conformity of the patent with this act. certify it to be so at the foot thereof, and present the letters patent so certified to the President, who shall cause the seal of the United States to be thereto affixed, and the same shall be good and available to the grantee or grantees by force of this act, to all and every intent and purpose herein contained, and shall be recordedPatents to be recorded. in a book to be kept for that purpose in the office of the Secretary of State, and delivered to the patentee or his agent, and the delivery thereof shall be entered on the record and endorsed on the patent by the said Secretary at the time of granting the same.
thereof,Certified copies in what cases to be evidence. shall be competent evidence in all courts and before all jurisdictions, where any matter or thing, touching or concerning such patent, right, or privilege, shall come in question.
Sec. 3. And be it further enacted,Copies of specification, and models may be taken. That upon the application of any person to the Secretary of State, for a copy of any such specification, and for permission to have similar model or models made, it shall be the duty of the Secretary to give such copy, and to permit the person so applying for a similar model or models, to take, or make, or cause the same to be taken or made, at the expense of such applicant.
Sec. 4. And be it further enacted,Penalty for making, &c. any art, &c. for which a patent has been granted. That if any person or persons shall devise, make, construct, use, employ, or vend within these United States, any art, manufacture, engine, machine or device, or any invention or improvement upon, or in any art, manufacture, engine, machine or device, the sole and exclusive right of which shall be so as aforesaid granted by patent to any person or persons, by virtue and in pursuance of this act, without the consent of the patentee or patentees, their executors, administrators or assigns, first had and obtained in writing, every person so offending, shall forfeit and pay to the said patentee or patentees, his, her or their executors, administrators or assigns such damages as shall be assessed by a jury,Damages to be assessed by a jury. and moreover shall forfeit to the person aggrieved, the thing or things so devised, made, constructed, used, employed or vended, contrary to the true intent of this act, which may be recovered in an action on the case founded on this act.
Sec. 5. And be it further enacted, That upon oath or affirmation made before the judge of the district court, where the defendant resides, that any patent which shall be issued in pursuance of this act, was obtained surreptitiously by, or upon false suggestion, and motion made to the said court, within one year after issuing the said patent, but not afterwards,Patents surreptitiously obtained, it shall and may be lawful to and for the judge of the said district court, if the matter alleged shall appear to him to be sufficient, to grant a rule that the patentee or patentees, his, her, or their executors, administrators or assigns, show cause why process should not issue against him, her, or them, to repeal such patents;how to be repealed. and if sufficient cause shall not be shown to the contrary, the rule shall be made absolute, and thereupon the said judge shall order process to be issued as aforesaid, against such patentee or patentees, his, her, or their executors, administrators, or assigns. And in case no sufficient cause shall be shown to the contrary, or if it shall appear that the patentee was not the first and true inventor or discoverer, judgment shall be rendered by such court for the repeal of such patent or patents; and if the party at whose complaint the process issued, shall have judgment given against him, he shall pay all such costs as the defendant shall be put to in defending the suit, to be taxed by the court, and recovered in such manner as costs expended by defendants, shall be recovered in due course of law.
Sec. 6. And be it further enacted,In actions for penalty, patents to be deemed prima facie evidence of the first discovery; but special matter may be given in evidence; and to what effect. That in all actions to be brought by such patentee or patentees, his, her, or their executors, administrators or assigns, for any penalty incurred by virtue of this act, the said patents or specifications shall be prima facie evidence, that the said patentee or patentees was or were the first and true inventor or inventors, discoverer or discoverers of the thing so specified, and that the same is truly specified; but that nevertheless the defendant or defendants may plead the general issue, and give this act, and any special matter whereof notice in writing shall have been given to the plaintiff, or his attorney, thirty days before the trial, in evidence, tending to prove that the specification filed by the plaintiff does not contain the whole of the truth concerning his invention or discovery; or that it contains more than is necessary to produce the effect described; and if the concealment of part, or the addition of more than is necessary, shall appear to have been intended to mislead, or shall actually mislead the public, so as the effect described cannot be produced by the means specified, then, and in such cases, the verdict and judgment shall be for the defendant.
Sec. 7. And be it further enacted, That such patentee as aforesaid, shall, before he receives his patent, pay the following fees to the several officers employed in making out and perfecting the same, to wit:Patent fees. For receiving and filing the petition, fifty cents; for filing specifications, per copy-sheet containing one hundred words, ten cents; for making out patent, two dollars; for affixing great seal, one dollar; for indorsing the day of delivering the same to the patentee, including all intermediate services, twenty cents.
1. An “act to promote the progress of useful arts; and to repeal the act heretofore made for this purpose,” passed February 21, 1793. Repealed by act of July 4, 1836.
2. An act supplementary to the act entitled an “act to promote the progress of useful arts,” passed June 7, 1794. Repealed by act of July 4, 1836.
3. An act to extend the privilege of obtaining patents for useful discoveries and inventions to certain persons therein mentioned, and to enlarge and define the penalties for violating the rights of patentees, passed April 17, 1800. Repealed by act of July 4, 1836.
4. An act concerning patents for useful inventions, passed July 3, 1832. Repealed by act of July 4, 1836.
5. An act concerning the issuing of patents to aliens for useful discoveries and inventions, passed July 13, 1832. Repealed by act of July 4, 1836.
6. An act to promote the progress of useful arts, and to repeal all acts heretofore made for that purpose, passed July 4, 1836.
7. An act authorizing the commissioner of the patent office to issue patents to Angier Marsh Perkins, and John Howard Ryan, passed March 31, 1838.
8. An act in addition to an act to promote the progress of the useful arts, passed March 3, 1839, chap. 87. Altered by act of August 29, 1842, chap. 262.
9. An act in addition to an act to promote the progress of the useful arts, and to repeal all acts heretofore made for that purpose, passed August 29, 1842, chap. 262.
1. On the form and subjects of patents,—Invention and Discovery,—the Specification and Description.—Evans v. Eaton, 3 Wheat. 454; 4 Cond. Rep. 291. Pennock v. Dialogue, 2 Peters, 16. Grant et al. v. Raymond, 6 Peters, 218. Shaw v. Cooper, 7 Peters, 292. Prouty v. Ruggles, 16 Peters, 336. Whittemore v. Cutter, 1 Gallis. C. C. R. 429, 478. Odiorne v. Winkley, 2 Gallis. C. C. R. 51. Stearns v. Barret, 1 Mason’s C. C. R. 153. Lowell v. Lewis, 1 Mason’s C. C. R. 182. Bedford v. Hunt, 1 Mason’s C. C. R. 302. Kneass v. The Schuylkill Bank, 4 Wash. C. C. R. 9. Barrett et al. v. Hall et al., 1 Mason’s C. C. R. 447. Odiorne v. The Amesbury Nail Factory, 2 Mason’s C. C. R. 28. Moody v. Fisk et al., 2 Mason’s C. C. R. 112. Langdon v. De Groot, Paine’s C. C. R. 203. Goodyear v. Matthews, Paine’s C. C. R. 300. Morris v. Huntingdon, Paine’s C. C. R. 348. Sullivan v. Redfield et al., Paine’s C. C. R. 441. Rutgen v. Kanowers, 1 Wash. C. C. R. 168. Evans v. Chambers, 2 Wash. C. C. R. 125. Evans v. Eaton, 3 Wash. C. C. R. 443; Peters’ C. C. R. 322. Dixon v. Moyer, 4 Wash. C. C. R. 68. Gray et al. v. James et al., Peters’ C. C. R. 394. Mellus v. Silsbee, 4 Mason’s C. C. R. 108. Ames v. Howard, 1 Sumner’s C. C. R. 482. Delano v. Scott, Gilpin’s D. C. R. 489. Wood v. Williams, ibid. 517. Evans v. Jordan et al., 1 Brockenb. C. C. R. 248. Davis v. Palmer, 2 Brockenb. C. C. R. 298. Ryan v. Goodwin, 3 Sumner’s C. C. R. 514. Blanchard v. Sprague, 3 Sumner’s C. C. R. 279. Alden v. Dewey, 1 Story’s C. C. R. 336. Prouty v. Draper, ibid. 568. Reed v. Cutter, ibid. 590. Stone v. Sprague, ibid. 270.
Infringement of Patent Rights.—Evans v. Jordon et al., 9 Cranch, 199; 3 Cond. Rep. 358. Keplenger v. De Young, 10 Wheat. 358; 6 Cond. Rep. 135. Shaw v. Cooper, 7 Peters, 292. Whittemore v. Cutter, 1 Gallis. C. C. R. 429. Gray and Osgood v. James, Peters’ C. C. R. 394. Sawin et al. v. Guild, 1 Gallis. C. C. R. 485. Lowell v. Lewis, 1 Mason’s C. C. R. 182. Kneass v. The Schuylkill Bank, 4 Wash. C. C. R. 106. Barret at al. v. Hall et al., 1 Mason’s C. C. R. 447. Boston Manufacturing Company v. Fiske et al., 2 Mason’s C. C. R. 119. Dawson v. Follen, 2 Wash. C. C. R. 311. Evans v. Weiss 2 Wash. C. C. R. 342. Parke v. Little et al., 3 Wash. C. C. R. 196. Evans v. Eaton, Peters’ C. C. R. 322. The Philadelphia and Trenton Railroad Company v. Stimpson, 14 Peters, 448.
Proceedings and Pleadings for Violation of Patent Rights.—Ex parte Wood and Brundage, 9 Wheat. 603; 5 Cond. Rep. 702. Grant v. Raymond, 6 Peters, 218. Whittemore v. Cutter, 1 Gallis. C. C. R. 429. Stearns v. Barrett, 1 Mason’s C. C. R. 153. Sullivan v. Redfield et al., Paine’s C. C. R. 441. Executors of Fulton v. Meyers, 4 Wash. C. C. R. 220. Pettibone v. Derringer, 4 Wash. C. C. R. 215. Kneass v. The Schuylkill Bank, 4 Wash. C. C. R. 106. Dixon v. Moyer, 4 Wash. C. C. R. 68. Isaacs v. Cooper, 4 Wash. C. C. R. 259. Evans v. Kremer, Peters’ C. C. R. 215. Ames v. Howard, 1 Sumner’s C. C. R. 482.
Evidence in Actions for the Violation of Patent Rights.—Evans v. Eaton, 3 Wheat. 454; 4 Cond. Rep. 291. Evans v. Hettick, 7 Wheat. 453; 5 Cond. Rep. 317. Whittemore v. Cutter, 1 Gallis’ C. C. R. 478. Odiorne v. Winkley, 2 Gallis. C. C. R. 51. Stearns v. Barrett, 1 Mason’s C. C. R. 153. Kneass v. The Schuylkill Bank, 4 Wash. C. C. R. 106. Dixon v. Moyer, 4 Wash. C. C. R. 68. Evans v. Eaton, Peters’ C. C. R. 322.
Surrender and Repeal of Patents.—Ex parte Wood and Brundage, 9 Wheat. 603; 5 Cond. Rep. 702. The Philadelphia and Trenton Railroad Company v. Stimpson, 14 Peters, 448. Shaw v. Cooper, 7 Peters, 292. Grant v. Raymond, 6 Peters, 218. Delano v. Scott, Gilpin’s C. C. R. 489. Stearns v. Barrett, 1 Mason’s C. C. R. 153. Morris v. Huntingdon, Paine’s C. C. R. 348. See post 318.
See also Peters’s Digest, Patents for useful inventions.

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text:
PAINTING, n. The art of protecting flat surfaces from the weather and exposing them to the critic.
I�ve recently started creating a set of technology related Devil�s definitions on Twitter.
Here are a number of them, slightly modified as a result of editorial freedom (on my part) as there is no 140 character limit on this blog .
Agile: n. A philosophy of project management where long term planning is replaced by short term thinking.
Bug Scrub: n. A meeting aimed at deciding which product issues can be swept under the carpet without too many people noticing.
CRM system: n. A database full of opinion and incomplete info used as a key source of input for decisions and sales projections.
Competitive Analysis: v. The act of simultaneously underestimating your competitors weaknesses and overestimating your own strengths.
Customer Council: n. A small # of Strategic Accounts whose influence on product futures is proportional to their budgets.
First Customer Ship: n. The phase in which a small set of eager customers, unbeknownst to them, join the QA team.
Heroics: n. The Sales Methodology most often cited by salespeople as their reason for winning big deals.
Lead generation: v. The art of finding people interested enough in a product to give their names, but not interested enough to actually buy it.
Marketing: v. The art of getting others to believe exaggerations about you that you likely don�t believe about� yourself.
Market Sensing: v. The fine art of talking to others to understand how your bosses perceive the market.
Nightly Build: n. The overnight compilation of all new bugs introduced the prior day.
Post-mortem: n. A post-release process improvement meeting whose findings are usually ignored until the subsequent post-mortem.
Product Issues: n. The reason given by the sales team for a lost deal when the competitor�s aggressive price-cutting was not the issue.
Product Roadmap: n. A highly-speculative document of little substance but much value, especially during negotiations with�Strategic Accounts.
Product Vision: n. An idealistic future view of a product typically derived while in a state of Utopia Myopia.
Refactoring:� v. The act of completely rewriting working code to enable hypothetical improvements to be made to it sometime in the future. A favourite task of most software developers.
Release Candidate: n. Like a political candidate, far from perfect, but likely to annoy the least number of people.
Release Date: n. The day before the first installation or licensing bug is reported by a customer.
Requirement: n. A statement of need by a Product Manager, seen as a loose suggestion by Development, and as a firm commitment by Sales.
Research Firms: n. Companies that provide CYA services to buyers via simple diagrams and expensive reports. Also applies to Management Consultants.
Sales: v. The art of turning leads into gold.
Sales Club: n. A disincentive program for non-sales employees who make significant contributions but aren�t likewise rewarded with a trip to an exotic location.
Sales Forecast: n. Proof that throwing darts can be used for more than simply deciding which stocks to buy.
Sales Kickoff: n. 3 nights of intense inebriation mixed with 3 days of intense sleep deprivation. Some business transpires.
Sales Methodology: n. Once implemented, allows a company to believe sales people will actually follow a standard process. See Heroics.
Social Media: n. An electronic communication medium aimed at �connecting� people with each other while simultaneously minimizing actual human contact.
Social Networking: v. The opposite of anti-social networking.
Software Architecture: n. The technical underpinning of software systems and the chief roadblock to making major improvements to them. See also: Refactoring.
Strategic Account: n. A customer with lots of money to spend, usually on things that are not core to your business. Often a member of a Customer Council.
Software upgrade: n. A work creation program for the Technical Support team.
Technical Support team: n. The group with the most customer and product exposure but with the least say in customer and product decisions.
Trade Show: n. A gathering of like-minded people all seeking knowledge of the best free giveaways on the show floor.
Undercut by Competitor: n. The most common reason salespeople cite for the failure of Heroics.
Usability: n. The first thing customers experience and virtually the last thing developers think about.
Utopia Myopia: n. The condition of only seeing ideal outcomes and ignoring all other data. The opposite of analysis paralysis.
Waterfall: n. A software development methodology that starts with long term planning along a path this is unclear and which likely ends with a fall over a cliff and a crash on rocks below.
Win/Loss Analysis: n. An unnecessary analysis as Wins are due to sales rep Heroics, and Losses due to Product Issues and being Undercut by Competition.
Feel free to add your own in the comments or let me know which ones you particularly liked or disliked.

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text:
The procedures for the solution of return problem of electrodynamics which are related to study of structure and dynamics of ionospheric plasma are presented. The regularization method of the return problem solution in experiments on incoherent scatter in the ionosphere is offered. The correlation functional determined on the complex-value normal Markov process is considered. Some analytical expressions describing statistical properties of such functional are derived. An example of the use of the retrieved distribution densities for increase of ionospheric measurement reliability in the incoherent scatter method is given.
1. Mazmanishvili A. S. Correlated Sequences in statistical estimation tasks. Reports of the National Academy of Sciences of Ukraine, No. 7, 21—25 (2001) [In Russian].
2. Mazmanishvili A. S., Puliaiev V. A. A development of information technologies for rating ionospherical plasma parameters in the method of radiowaves incoherent scattering. Kosm. nauka tehnol., 9 (4), 73—78 (2003) [in Russian].
3. Puliaiev V. A. Instrumental factors influence the choice of HP signal processing [Vlijanie apparaturnyh faktorov na vybor obrabotki signala HP]. Vestn. HGPU: Sb. nauch. tr., Is. 31, 87—89 (1999) [in Russian].
4. Puliaiev V. A. The algorithm analyzes the residual functions in the process of calculation of ionospheric parameters for the ACF incoherent scatter signal [Algoritm analiza funkcij nevjazki v processe rascheta ionosfernyh parametrov po AKF signala nekogerentnogo rassejanija]. Vestn. NTU HPI: Avtomatika i priborostroenie: Sb. nauch. tr., Is. 4, 216— 218 (2001) [in Russian].
5. Puliaiev V. A. Statistical estimation of the parameters of the ionosphere in the method of incoherent scattering of radio waves [Statisticheskoe ocenivanie parametrov ionosfery v metode nekogerentnogo rassejanija radiovoln]. Radiotekhnika, Is. 129, 98—102 (2002) [in Russian].
6. Rogozhkin E. V. Measuring the ionospheric plasma parameters using the correlation function of incoherent scatter signal. In: Ionospheric studies, N 27, 46–59 (Soviet Radio, Moscow, 1979) [in Russian].
7. Rytov S. M. Introduction to Statistical Radiophysics, 404 p. (Nauka, Moscow, 1979) [in Russian].
8. Sitenko A. G. Electromagnetic Fluctuations in Plasma, 183 p. (Khark. univ., Kharkov, 1965) [in Russian].
9. Taran V. I. A study of the natural and artificially disturbed ionosphere by the incoherent scatter method, Geomagn. Aeronomy, 41 (5), 659—666 (2001) [in Russian].
10. Tikhonov V. I., Mironov M. A. Markov Processes, 488 p. (Sov. Radio, Moscow, 1977) [in Russian].
11. Evans J.W. Theoretical and practical issues to investigate the ionosphere by means of incoherent scattering of radio waves. Proceedings of the IEEE, 57 (4), 139—171 (1969) [In Russian].
12. Farley D. T. Radio wave scattering from the ionosphere. Meth. Exp. Phys., 98, 139—186 (1971).

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Many employers utilize incentive pay wherein an employee is paid an extra amount of money on top of his or her normal hourly rate. Sometimes this comes in the form of incentive pay (i.e., if an employee performs at a certain level, they might get a higher rate of pay), shift differentials (for example, an extra $1 per hour for working the night shift), commissions or bonuses, and safety pay, among many others. Many employers violate the overtime laws by not including this extra pay factored into the “regular” rate of pay.
If Employee gets $10 per hour. And, she also get an extra $2 per hour for incentive pay. This means that the “regular rate” is really $12 per hour and not $10. As such, for overtime (at 1.5 times the regular rate of pay), the rate should be $18 per hour (and not $15). Many employers fail to include the incentive amount in computing the regular rate.
The FLSA requires employers to compensate employees one-and-one-half times their regular hourly rate for all hours over forty (40) in a week. 29 U.S.C. § 207(a)(1). The FLSA defines the regular rate to “include all remuneration for employment paid to, or on behalf of, the employee” with certain statutory exceptions that are not applicable here. 29 U.S.C. § 207(e). The regular rate is based upon what actually happens rather than a prospective declaration of what the rate will be. 29 C.F.R. § 778.108; see Bay Ridge Operating Co. v. Aaron, 334 U.S. 446, 468-69 (1948).
The statutory exceptions are to be interpreted narrowly against the employer and the employer bears the burden of showing that an exception applies. Caraballo v. City of Chicago, 969 F. Supp. 2d 1008, 1015 (N.D. Ill. 2013) (collecting cases from several circuits). These statutory exclusions are discussed in 29 C.F.R. § 778.200, which emphasizes that Section 207(e)’s list of exclusions is exhaustive: “all remuneration for employment paid to employees which does not fall within one of these seven exclusionary clauses must be added into the total compensation received by the employee before his regular hourly rate of pay is determined.” 29 C.F.R. § 778.200(c); see also Caraballo v. City of Chicago, 969 F. Supp. 2d 1008 (N.D. Ill. 2013) (where the district court partially granted Plaintiff’s motion for summary judgment because additional payments made to the employees should have been included in their regular rate of pay for purposes of overtime); O’Brien v. Town of Agawam, 350 F.3d 279, 294 (1st Cir. 2003) (summary judgment appropriate in part because “the exceptions are to be interpreted narrowly against the employer…and the employer bears the burden of showing that an exception applies”); Acton v. City of Columbia, Mo., 436 F.3d 969, 972 (8th Cir. 2006); Featsent v. City of Youngstown, 70 F.3d 900, 904 (6th Cir. 1995); Reich v. Interstate Brands Corp., 57 F.3d 574, 578–79 (7th Cir.1995), denied, 516 U.S. 1042, 116 S.Ct. 699, 133 L.Ed.2d 656 (1996) (analogizing earned work credits to premium rates for undesirable shifts and finding that Section 7(e)(2) does not exclude that compensation from the regular rate); 29 C.F.R. § 778.207(b) (requiring that the regular rate include premiums for nightshift differentials and hazardous work).
Like many things in the law, there are several variables that factor into whether an employee must be paid a higher regular rate for overtime purposes and this page is for informational purposes only.


text:
For the Defendant: Harry Seymour, Esq.
As to a motion and a cross-motion for summary judgment, the familiar standard for granting a summary judgment motion is that judgment should be granted in favor of the moving party only if the pleadings, depositions, answers to interrogatories, and admissions on file, taken together with any affidavits, demonstrate that there is no genuine issues as to any material fact, and that the movant is entitled to judgment as a matter of law. The court must view the facts and inferences in a light most favorable to the party against whom judgment is sought. Mid-Pacific Liquor Distrib. Corp. v. Edmond, 9 FSM Intrm. 75, 77 (Kos. 1999).
An open account is an account based upon running or concurrent dealing between the parties which has not been closed, settled, or stated, and which is kept unclosed with the expectation of further transactions. Mid-Pacific Liquor Distrib. Corp. v. Edmond, 9 FSM Intrm. 75, 78 (Kos. 1999).
In an action brought to recover the balance due upon a mutual and open account, or upon a cause of action on which partial payments have been made, the cause of action shall be considered to have accrued at the time of the last item proved in the account. Mid-Pacific Liquor Distrib. Corp. v. Edmond, 9 FSM Intrm. 75, 78 (Kos. 1999).
The statute of limitations for an action to collect the balance due on an open account is six years from the accrual date of the cause of action. Mid-Pacific Liquor Distrib. Corp. v. Edmond, 9 FSM Intrm. 75, 78 (Kos. 1999).
A suit filed on March 18, 1997 for a cause of action with a six-year statute of limitation that accrued on March 18, 1991 was filed on the very last day for doing so because in computing any time period the day of the act, event, or default from which the designated time period begins to run is not included. Mid-Pacific Liquor Distrib. Corp. v. Edmond, 9 FSM Intrm. 75, 78 (Kos. 1999).
Laches involves two factors, 1) inexcusable delay or lack of diligence by the plaintiff in bringing suit, and 2) injury or prejudice to the defendant from plaintiff's delay. A predicate to reliance on the doctrine of laches is that he who would invoke it must have clean hands, and must have acted properly concerning the subject matter of the litigation. Mid-Pacific Liquor Distrib. Corp. v. Edmond, 9 FSM Intrm. 75, 78 (Kos. 1999).
A defendant who has had the benefit of the goods which he received without paying for them is precluded from relying on the doctrine of laches as a defense to a suit for payment. Mid-Pacific Liquor Distrib. Corp. v. Edmond, 9 FSM Intrm. 75, 78 (Kos. 1999).
of fact whether the goods were paid for before the defendant received them. Mid-Pacific Liquor Distrib. Corp. v. Edmond, 9 FSM Intrm. 75, 79 (Kos. 1999).
When a plaintiff's interest and attorney's fee claim rests on a paragraph on the bottom left portion of each invoice and none of the invoices bears the defendant's signature, an issue of fact exists as to whether this pre-judgment interest and fee clause ever formed a material part of the open account agreement between the parties. Summary judgment is therefore denied on the issue. Mid-Pacific Liquor Distrib. Corp. v. Edmond, 9 FSM Intrm. 75, 79 (Kos. 1999).
A review of this file discloses that plaintiff filed its Motion for Summary Judgment on July 8, 1997. On July 10, 1997, defendant filed his Motion in Opposition to Plaintiff's Motion for Summary Judgment; and Defendant's Cross Motion for Summary Judgment. On that same date, defendant filed Defendant's Motion for Leave to Amend Answer. On August 1, 1997, plaintiff filed Plaintiff's Opposition to Defendant's Cross Motion for Summary Judgment and Nonopposition to Defendant's Motion for Leave to Amend Answer.
There being no opposition to the defendant's motion for leave to amend the answer, the motion is granted.
As to the motion and cross-motion for summary judgment, the familiar standard for granting a motion for summary judgment under Rule 56 of the FSM Rules of Civil Procedure is that judgment should be granted in favor of the moving party only if the pleadings, depositions, answers to interrogatories, and admissions on file, taken together with any affidavits, demonstrate that there is no genuine issues as to any material fact, and that the movant is entitled to judgment as a matter of law. FSM v. Ponape Builders Constr. Inc., 2 FSM Intrm. 48, 52 (Pon. 1985). The court must view the facts and inferences in a light most favorable to the party against whom judgment is sought. Id.
The material facts as set out in plaintiff's motion and supported by the affidavit of plaintiff's credit manager are that beginning on September 4, 1990, and continuing through March 18, 1991, defendant placed seven orders for goods from defendant. The orders were placed on an open account basis. The amount of goods ordered totalled $15,661.99. Plaintiff credited defendant with payments totalling $962.76 on the first shipment. Plaintiff claims that $14,699.13 remains due and owing.
In response, defendant admits that he purchased goods on credit from plaintiff, and does not deny that goods were purchased on an open account basis. Defendant does deny that he owes the total amount claimed of $14,699.13. Specifically, defendant takes issue with one of the invoices, invoice number 11049 dated September 4, 1990. Defendant also contends that he is not chargeable with pre-judgment interest on his account, nor with attorney's fees. Defendant further urges two points of law. He asserts that as to the shipments represented by six of the seven invoices, plaintiff's claim is foreclosed by the six year statute of limitations found in 6 F.S.M.C. 805. Defendant also alleges that the equitable doctrine of laches prevents this action.
The statute of limitations and laches defenses, if they are legally sufficient, necessarily dispose of this action, and the court addresses them first.
Based on the affidavit of plaintiff's credit manager, customer ledger, and invoices attached to plaintiff's motion for summary judgment, plaintiff and defendant had a standard commercial arrangement with defendant constituting an open account, and defendant offers nothing to suggest that seven orders placed between September 4, 1990, and March 13, 1991 were on any basis other than an open account. An open account is "an account based upon running or concurrent dealing between the parties which has not been closed, settled, or stated, and which is kept unclosed with the expectation of further transactions." 1 Am. Jur. 2d Accounts and Accounting § 4 (1962). The FSM Congress has specifically addressed the accrual date for a cause of action based on an open account when it enacted 6 F.S.M.C. 807, which provides that "[i]n an action brought to recover the balance due upon a mutual and open account, or upon a cause of action on which partial payments have been made, the cause of action shall be considered to have accrued at the time of the last item proved in the account." Hence, the accrual date for the instant cause of action is the date of the last invoice, invoice number 11649, which is dated March 18, 1991.
The statute of limitations for an action to collect the balance due on an open account is six years from the accrual date of the cause of action. This follows from 6 F.S.M.C. 805 by a process of exclusion. That statutory section provides that "[a]ll actions other than those covered in the preceding sections of this Chapter shall be commenced within 6 years after the cause of action accrues." A cause of action for debt collection is not listed in those causes of action set out in 6 F.S.M.C. §§ 802, 803, or 804. Hence, the statute of limitations for the instant suit is six years.
As noted, plaintiff's cause of action accrued for purposes of the statute of limitations on March 18, 1991. This suit was filed on March 18, 1997. By virtue of the fact that Rule 6(a) of the FSM Rules of Civil Procedure provides that "[i]n computing any period of time prescribed . . . by any applicable statute, the day of the act, event, or default from which the designated period of time begins to run shall not be included," plaintiff filed its suit on the very last day for doing so. As a consequence, the statute of limitations does not preclude the instant suit.
Defendant also contends that the equitable doctrine of laches prevents plaintiff from pursuing its claim. Laches involves two factors, "1) inexcusable delay or lack of diligence by the plaintiff in bringing suit, and 2) injury or prejudice to the defendant from plaintiff's delay." Nahnken of Nett v. United States (III), 6 FSM Intrm. 508, 522 (Pon 1994). A predicate to reliance on the doctrine of laches is that he who would invoke it must have clean hands, and "must have acted properly concerning the subject matter of the litigation." Ponape Transfer & Storage v. Federated Shipping Co., 3 FSM Intrm. 174, 178 (Pon. 1987).
In this case defendant does not deny that he received the goods for which plaintiff seeks payment. Nor, with one exception, invoice number 1049, does he claim to have paid the invoices. Under these facts, the defendant cannot be said to have clean hands. He has had the benefit of the goods which he received without paying for them. He is precluded from relying on the doctrine of laches as a defense to plaintiff's suit.
For these reasons, the equitable doctrine of laches does not bar plaintiff's claim.
As to invoices 11318 ($1,315.51), 11409 ($2,658.84), 11551 ($1,444.80), 11579 ($3,525.46), 11640 ($225.63), and 11649 ($5,288.19), which constitute the bulk of the balance of the open account, defendant does not deny that he received these goods, and that he has not paid for them. Therefore, as to this portion of plaintiff's claim, plaintiff is entitled to judgment. However, as to invoice 11049, in the amount of $1,203.46, an issue of fact exists. An issue of fact also exists as to whether the defendant is entitled to pre-judgment interest and attorney's fees.
Invoice 11049 bears the notation "C.O.D." in the upper right hand corner. Defendant offers the affidavit of a Kosrae postal worker, Schaller George, to make the point that "C.O.D." means "collect on delivery." Defendant concludes that he must have paid for this shipment, or else he would not have been permitted to take delivery of it. Plaintiff rightly points out that the affidavit lacks sufficient evidentiary foundation, since Mr. George was not employed as a postal clerk at the post office in Kosrae until sometime after the date of the invoice. However, "C.O.D." has a meaning sufficiently established apart from any evidentiary issues raised by the affidavit of Mr. George. Webster's Third New International Dictionary 437 defines "C.O.D." as "cash on delivery, collect on delivery." The appearance of this notation on the invoice creates an issue of fact whether this invoice was paid, since the accepted meaning of "C.O.D." is receipt of goods is conditioned on payment.
Plaintiff is quick to point out that defendant made three payments of $481.38, $240.69, and $240.691 between September 4, 1990, the date of invoice 11049, and December 6, 1990, the date of the next invoice. Plaintiff maintains that it would be unlikely that defendant would have made these payments if he had already paid invoice 11049, which was the only outstanding invoice at the time these payments were made. However, such a conclusion flows from weighing evidence, and making a determination in favor of plaintiff. On a motion for summary judgment, the court must consider the facts and inferences therefrom in a light as favorable to the non-moving party as is reasonable. FSM Social Sec. Admin. v. Kingtex (FSM), Inc. (I), 7 FSM Intrm. 280, 283 (Yap 1995). Viewed in this way, the C.O.D. notation creates an issue of fact that at least precludes summary judgment on this point.
An issue of fact also exists with respect to whether plaintiff is entitled to pre-judgment interest and attorney's fees. Plaintiff seeks these in its motion, although indicating that as to precise amount, it intends to leave this to the court's discretion as part of a motion for entry of judgment should the court grant its motion. However, the court concludes that an issue of fact exists as to whether plaintiff is entitled to pre-judgment interest and attorney fees in the first instance.
Purchaser understands and agrees that interest of 1½% per month shall accrue on all accounts remaining unpaid after thirty (30) days from date of original purchase. If placed in the hands of an attorney for collection or if suit is sought on same, the purchaser shall also pay the cost of collection including reasonable attorney fees and court costs.
However, based on the photocopies of the invoices attached to the plaintiff's motion for summary judgment, none of these invoices appear to bear the signature of the defendant. Hence, an issue of fact exists as to whether or not this pre-judgment interest and attorney's fee clause ever formed a material part of the open account agreement between the parties. Summary judgment is therefore denied on the issue of pre-judgment interest and attorney's fees.
Based on the foregoing, plaintiff's motion is granted to the extent of $13,495.67 on the principal portion of its claim. The remainder of plaintiff's motion for summary judgment is denied. Defendant's cross-motion for summary judgment is denied.

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