author: OAKES, Circuit Judge: MULLIGAN, Circuit Judge HAYS, Circuit Judge:

text:
    UNITED STATES of America ex rel. James C. HAYNES, Petitioner-Appellee, v. Charles L. McKENDRICK, Warden, Wallkill State Prison, Walkill, New York, Respondent-Appellant.
    No. 525, Docket 72-2332.
    United States Court of Appeals, Second Circuit.
    Argued March 12, 1973.
    Decided June 14, 1973.

      Michael Colodner, Asst. Atty. Gen. (Louis J. Lefkowitz, Atty. Gen. of N. Y., Samuel A. Hirshowitz, First Asst. Atty. Gen., on the brief), for respondent-appellant.
    Michael A. Meltsner, New York City, for petitioner-appellee.
    Before HAYS, ' MULLIGAN and OAKES, Circuit Judges.
   OAKES, Circuit Judge:

This case is surprising in this day and age since it presents, on appeal by the State from a conditional grant of the writ of habeas corpus in a proceeding under 28 U.S.C. § 2254, the question whether racially prejudicial remarks by a prosecutor in summation constitutionally infected the conviction of appellee. District Judge Motley held that they did so, that there was not harmless constitutional error, and accordingly granted the petition for the writ unless the State within 60 days retried petitioner, the appellee here. Her opinion is printed at 350 F.Supp. 990 (S.D.N.Y.1972). We agree and affirm.

On a rainy evening, December 11, 1965, three men robbed a Niagara, New York, delicatessen. In the process a robber wearing a beige trench coat, a black beret and a mask covering his mouth scooped up $132 from the cash register, hit a customer of the store with a gun, knocking him unconscious, and took his wallet and money. This robber ran out of the store, pursued by two policemen, but escaped. Meanwhile, two other officers came on the scene in a police car, and after briefly losing sight of the suspect, saw petitioner, Haynes, and arrested him. He was wearing a beige trench coat and black beret but he had no gun, no wallet and no $132. Two black stockings, one of which apparently fitted the description of the “mask,” were, however, found in petitioner’s pockets along with $25 in change and $73 in bills, 20 of which were and 53 of which were not in his wallet.

Petitioner was identified at the trial by four witnesses, three who saw him in lineups (two of whom said they had known him before the robbery) and one who testified he saw petitioner in front of the store before he put on his “mask.” Petitioner’s defense was based on an alibi supported by his own testimony, corroborated by three other players, that he had been playing poker and that the coins and bills were winnings. He explained his having the money in assorted pockets by saying that he had kept $17 rent money separately. The socks he and his wife said were put in his pocket when he had bought new gold ones that morning, to match his shirt. That the ease was relatively a close one is partially evidenced by the fact that the jury retired at 6:07 p. m. on Friday, March 18, 1966, and returned at 10:42 p. m. with a series of questions concerning (1) the police log’s data on the time of the call to the police car from which petitioner was ultimately seen and the time of the pick-up of petitioner; (2) from which of Haynes’ pockets the arresting officer took the socks; and (3) the arresting officer’s testimony as to mud on the shoes and pants of Haynes, coupled with a request to have the shoes and pants in the jury room. The jury retired at 11:16 p. m. and did not return with its guilty verdict until 12:55 a. m. on Saturday, March 19, 1966.

The appellant exhausted his remedies in the state courts, arguing in Point II of his brief to the Appellate Division of the State Supreme Court, 4th Department, entitled “Prosecutor’s Remarks” that “allusions to race or ethnic background” were prejudicial and referring to the summation as being “replete with racial overtones, undertones, and explicit statements.” Indeed, the State did not brief the exhaustion point here.

What, then, were the remarks of the prosecutor to the all-white Niagara County jury, on which the trial court based its finding of a denial of due process? We repeat them here in ex-tenso as we believe it necessary for better understanding of our decision (all quotations are from Volume 10 of the transcript of petitioner’s trial):

I know that [petitioner’s counsel] Mr. Gold, in his experience, he has dealt with people for many years of the colored race. There is something about it, if you have dealt with colored people and have been living with them and see them you begin to be able to discern their mannerisms and appearances and to discern the different shades and so on. Any of you that have never been exposed to them would never be able to. I don’t see, I have been exposed to some degree, that isn’t what I am getting at. What I am getting at is those who are living with them, dealing with them, and working with them in a sense, have a much better opportunity to evaluate what they see to identify what they see. (27-28.)
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Now, counsel for the defendants told you, and Attorney Gold is probably as well versed with the colored race as any man I know in the legal profession. He knows their weaknesses and inability to do certain things that maybe are commonplace for the ordinary person to do or remember or know certain things. (38.)
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Here she is, a young girl about 13 [referring to a prosecution witness who was black]. And I know that you have recalled this young McCray girl who is the tall sister of Jones. That young lady [also black] had her first baby at 15. She is now married at 16 with another baby on the way. The maturity among these people becomes quite evident quite quickly. Here is a- young girl interested in all the young — or ought to be, in the young men of her circle of friends or environment . . . (40-
41.)
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It gets confusing when you talk to some of these youngsters like that because they don’t express themselves as clearly as you and I might possibly be able to do so. (41 — 42.)
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Eyvonne Martin true enough is 13 years old. Again I point to the fact she is a colored girl. She knows her own. She knows the young bucks in that neighborhood and she knew Terry Cox [petitioner’s codefendant]. (43-44.)
* * * * * *
I know that it is the custom and the habit of many colored people to try and straighten their hair. I don’t know what the reason for it is. But in any event it is not uncommon to observe colored people with a heavy pomade grease or hair, dressing in their hair. It is also not uncommon to find colored people with somewhat 'exotic hair-dos, male and female. Most of the exotic hair-dos take the form of a skull cap type hairdo, plastered down. You may have seen this. Others are taking the trend of the current day, of the long hair. It seems to be a fad. May I say that I cannot participate in that. The tendency on the part of these faddists, if I can call them that, is that they use this black bandana type, you have seen it, to hold the hair down. The effect of this grease is to straighten that hair out. And that would bring the hair down. The long hair as described by Mrs. Balón, being pulled down, plastered down on the side of the head and by Investigator Dernier, who described it as long. This is not the type of sideburns that we usually think of when we think of sideburns. It probably operates much as bangs operate on a lady. They do not grow out of your forehead. They come off the top and dress down. . . . (79-81.)

We agree with the district court that the prosecutor’s remarks introduced race prejudice into the trial and thereby denied petitioner his constitutional right under the due process clause to a fair trial. There can be no doubt that the prosecutor’s remarks would have required reversal in a federal court appeal under the decisions of this and other federal courts. See United States v. Grey, 442 F.2d 1043 (6th Cir.), cert. denied sub nom. Williams v. United States, 400 U.S. 967, 91 S.Ct. 380, 27 L.Ed.2d 387 (1970). See also United States v. Lamerson, 457 F.2d 371 (5th Cir. 1972); United States v. Grunberger, 431 F.2d 1062, 1068 (2d Cir. 1970). Skuy v. United States, 261 F. 316 (8th Cir. 1919), contained a prosecutorial statement corn-parable in its instillation of racial prejudice with this one; in that case the prosecutor implied that the testimony of one Christian soldier should be believed even though disputed by four Jewish witnesses simply because of the different religious affiliations of the witnesses. In both Skuy and Grunberger, supra, reversal was had despite a failure on the part of the defendant to object properly (perhaps by virtue of unconscious acquiescence on the part of the defense attorney in the prosecutor’s objectionable remarks), and here too defense counsel’s failure to object does not dispose of the issues- raised by this habeas petition. This case goes well beyond the classic United States v. Antonelli Fireworks Co., 155 F.2d 631, 637-638 (2d Cir..), cert. denied, 329 U.S. 742, 67 S.Ct. 49-91 L.Ed. 640 (1946), where the prosecutor’s closing statement was an exhortation in wartime to the jury as patriotic Americans in disparagement of the Italian-American defendant. Judge Frank’s eloquent dissent, it will be recalled, argued among many other things that a prosecutor “should not be permitted to summon that thirteenth juror, prejudice.” 155 F.2d at 659. See also Annot., 45 A.L.R.2d 303, 322-68 (1956); ABA Project on Standards for Criminal Justice, The Prosecution Function and the Defense Function §§ 5.8(c) and (d), commentary at 128-29 (1970).

Racial prejudice can violently affect a juror’s impartiality and must be removed from the courtroom proceeding to the fullest extent possible. See generally G. Allport, The Nature of Prejudice (1955); B. Bettelheim & M. Janowitz, Social Change and Prejudice (1964); S. Blackburn, White Justice; Black Experience Today in America’s Courtroom (1971); J. Kovel, White Racism, A Psyehohistory (1970). It negates the defendant’s right to be tried on the evidence in the case and not on extraneous issues. ABA Standards, supra, at 129. More than just harm to the individual defendant is involved, however. For the introduction of racial prejudice into a trial helps further embed the already too deep impression in public consciousness that there are two standards of justice in the United States, one for whites and the other for blacks. Such an appearance of duality in our racially troubled times is, quite simply, intolerable from the standpoint of the future of our society.

Proceeding from the major premise that the remarks of the prosecutor were prejudicial and would have resulted in reversal had they been made in the federal courts, we must inquire whether, as the State seems to suggest, to result in reversal racially biased remarks of a prosecutor in a state court case must be shown to have had a greater probability of prejudice than remarks on a direct appeal in the federal courts. In our analysis we shall refer exclusively to federal court decisions which overturned state court decisions on fourteenth amendment grounds.

We commence our analysis of the application of the fourteenth amendment to prosecutorial summations in state courts with a considerable background of cases — none of them involving prosecutor’s remarks, to be sure — overturning convictions on fourteenth amendment grounds where racial prejudice was a major factor in the fiber of the trial. Moore v. Dempsey, 261 U.S. 86, 43 S.Ct. 265, 67 L.Ed. 543 (1923); Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). We also draw upon those cases that hold a fair trial to be a fundamental requisite of due process of law. Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (judge not impartial); Payne v. Arkansas, 356 U.S. 560, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958) (coerced confession); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) (right to counsel in all felony cases); Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417, 10 L.Ed.2d 663 (1963) (televising defendant’s confession before trial requires change of venue); Turner v. Louisiana, 379 U.S. 466, 85 S.Ct. 546, 13 L.Ed.2d 424 (1965) (two deputy sheriffs who testified against defendant supervised jury); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) (televising and broadcasting of trial); Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1965) (pre-trial and in-trial publicity); Parker v. Gladden, 385 U.S. 363, 87 S.Ct. 468, 17 L.Ed. 2d 420 (1965) (bailiff’s improper remarks to jury).

But all the case law is not as significant as the underlying history and purpose of the fourteenth amendment; it was and is centrally concerned with protecting the rights of black Americans in the states particularly in connection with the application of the law. E. g., Loving v. Virginia, 388 U.S. 1, 10, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). In the introductory speech in the debate on that great amendment, Thaddeus Stevens, when he came to discuss the first section which contains the due process and equal protection clauses, led by saying:

I can hardly believe that any person can be found who will not admit that every one of the provisions is just. They are all asserted in some form or other, in our Declaration or organic law. But the Constitution limits only the action of Congress, and is not a limitation on the States. This amendment supplies that defect, and allows Congress to correct the unjust legislation of the States, so far that the law which operates on one man shall operate equally upon all. Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree. Whatever law protects the white man shall afford “equal” protection to the black man. Whatever means of redress is afforded to one shall be afforded to all. Whatever law allows the white man to testify in court shall allow the man of color to do the same. These are great advantages over their present codes. Now different degrees of punishment are inflicted, not on account of the magnitude of the crime, but according to the color of the skin. Now color disqualifies a man from testifying in courts, or being tried the same way as a white man ....

Quoted in 1 Statutory History of the United States Civil Rights 222-23 (B. Schwartz ed. 1970).

This is of course the point where the due process and equal protection clauses overlap or at least meet — where a criminal trial is affected by racial prejudice, either in the underlying procedure, the atmosphere surrounding the trial or otherwise. Thus, the equal protection cases are not altogether inapposite. Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1879) (jury selection discriminatory) ; Norris v. Alabama, 294 U.S. 587, 55 S.Ct. 579, 79 L.Ed. 1074 (1935) (systematic exclusion of Negroes from grand and petit jury lists); Johnson v. Virginia, 373 U.S. 61, 83 S.Ct. 1053, 10 L.Ed.2d 195 (1963) (per curiam) (segregation in the courtroom); Hamilton v. Alabama, 376 U.S. 650, 84 S.Ct. 982, 11 L.Ed.2d 979 (1964) (discrimination by prosecutor in addressing a black witness by her first name); Whitus v. Georgia, 385 U.S 545, 87 S.Ct. 643, 17 L.Ed.2d 599 (1967) (grand jury selection discriminatory) ; Sims v. Georgia, 389 U.S. 404, 407-408, 88 S.Ct. 523, 19 L.Ed.2d 634 (1967) (per curiam) (grand and petit jury selection discriminatory); Alexander v. Louisiana, 405 U.S. 625, 92 S.Ct. 1221, 31 L.Ed.2d 536 (1972) (Negroes excluded from grand jury). If there is anything more antithetical to the purposes of the fourteenth amendment than the injection against a black man of race prejudice — whether in a procedure underlying, the atmosphere surrounding, or the actual conduct of, a trial — so that he, in the words of Senator Stevens, is deprived of the right of “being tried the same way as a white man,” we do not know what it is.

Thus, the purpose and spirit of the fourteenth amendment requires that prosecutions in state courts be free of racially prejudicial slurs in argument. The standard for state prosecution in this regard is thus as high as the rigorous standard required of the federal courts by the fifth amendment’s due process clause.

But the State argues, citing Buchalter v. New York, 319 U.S. 427, 431, 63 S.Ct. 1129, 1132, 87 L.Ed. 1492 (1943), which in turn quoted Adams v. United States ex rel. McCann, 317 U.S. 269, 281, 63 S.Ct. 236, 242, 87 L.Ed.2d 268 (1942), that “it is not asking too much that the burden of showing essential unfairness ... be sustained not as a matter of speculation but as a demonstrable realty.-” At least since In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 625, 99 L.Ed. 942 (1955) (one man judge-grand jury unconstitutional), however, “A fair trial in a fair tribunal is a basic requirement of due process. Fairness of course requires an absence of actual bias in the trial of cases. But our system of law has always endeavored to prevent even the probability of unfairness.” (Emphasis supplied.) We cannot of course know what was in the minds of the jury’s members when they came to pass upon Haynes’ guilt or innocence. Taken individually, probably each would have denied any prejudice. Cf. United States v. Antonelli Fireworks Co., supra, 155 F.2d at 655 n. 35 (Frank, J., dissenting). But we are totally satisfied that there was a strong probability of prejudice here, and probability of prejudice we believe to be the correct test when the evidence of guilt as in this case is not overwhelming. We cannot require that each juror now be examined as to his state of mind at the time of trial. Indeed, these jurors could not, the cases say, impeach their own verdict, even if they had recognized their own prejüdice when they saw it. See United States ex rel. Owen v. McMann, 435 F.2d 813, 818-819 (2d Cir. 1970), cert. denied, 402 U.S. 906, 91 S.Ct. 1373, 28 L.Ed.2d 646 (1971). It is the cold restatement of the remarks in the record, without inflection or intonation, on which we must ■ rely to determine the probability of prejudice and here we find it.

The State also contends that the statements of the district attorney were “engendered by the blatant racial appeals of counsel for petitioner and were intended for the rehabilitation of the State’s own witnesses,” even though it concedes that the prosecutor’s remarks were “inappropriate.” The State fails to refer us to any comment by Haynes’ attorney that was a “blatant racial appeal.” Some of the prosecutor’s remarks were undoubtedly, however, in rehabilitation of the State’s witnesses; defense counsel had quite correctly referred to the 13-year-old girl Eyvonne Martin as a witness who changed her story in a number of different ways and whose memory (since she didn’t remember the name of the street two blocks from where she lived) was unreliable. The white eyewitness’s testimony he also attacked partly on the basis that it is difficult for white people to identify “a colored person.” But rehabilitating Eyvonne Martin by allusions to the early maturity of “these people” and her knowledge of “her own . the young bucks in that neighborhood” coupled with a reference to the weakness and inability of “them” to do or know things that are “commonplace for the ordinary person” (emphasis supplied) to know or do served to dichotomize the people in the courtroom, to divide them into black and white. Cf. Moseley v. State, 112 Miss. 854, 858, 73 So. 791, 792 (1917) (“. . . This injection of race questions into court trials has been uniformly condemned by this court.”). The argument of defense counsel relating to identification could justify in reply reference to the particular defendant’s peculiar features, which made him especially noticeable to a white person — such as his “sideburns” — a reference that was made; it does not justify, in our opinion, the repeated references to “colored people” as a group trying to straighten their hair, or wearing “exotic hairdos,” or having sideburns that are not the type “that we usually think of when we think of sideburns.” In other words, answer to the identification argument did not require jurors to view “colored people” as an entity separate and apart from themselves, with the natural concomitant that the defendants would be viewed by the jury members as coming from a distinct, a different community from themselves. Cf. State v. Hinton, 210 S.C. 480, 486, 43 S.E.2d 360, 361 (1947) (“I do not ask you to convict the defendants merely because a white man was killed by a negro” held reversible error). Provocation by the defense may be considered as a factor in weighing the prosecutor’s conduct in summation. See United States v. Benter, 457 F.2d 1174, 1176 (2d Cir.), cert. denied, 409 U.S. 842, 93 S.Ct. 41, 34 L.Ed.2d 82 (1972); see also Buchalter v. New York, supra, 319 U.S. at 431, 63 S.Ct. 1129. But see United States ex rel. Castillo v. Fay, 350 F.2d 400, 401 (2d Cir. 1965), cert. denied, 382 U.S. 1019, 86 S.Ct. 637, 15 L.Ed.2d 533 (1966). But here there was no provocation, and, while the prosecutor could legitimately reply to the identification argument by the defense, his reply went beyond the bounds of propriety, passing those of due process, here.

Finally the State argues that there was harmless constitutional error in the sense that the evidence of guilt was so overwhelming that Haynes could not have been prejudiced by any of the prosecutor’s remarks. Cf. United States v. Benter, supra, 457 F.2d at 1178; United States v. Frascone, 299 F.2d 824, 828 (2d Cir. 1962), cert. denied, 370 U.S. 910, 82 S.Ct. 1257, 8 L.Ed.2d 404 (1963). The short answer to this argument is that our review of the record satisfies us that the evidence was by no means so clear as the prosecution would have it. The identification of petitioner was not overwhelmingly persuasive — the black beret he was wearing was not uncommon in the neighborhood and many raincoats are “beige.” Petitioner was not found with the robber’s gun or customer’s wallet or money in an amount similar to that taken. Petitioner presented, moreover, an alibi supported by the testimony of several witnesses. The jury, moreover was not so ready to convict, since it took several hours of deliberation before guilty verdicts were brought back. We totally disagree with the State’s contention in the next to concluding sentence in its brief, that “It is clear from the evidence at trial that petitioner had a hopeless case.” Rather, we think, the probability of prejudice was sufficiently great, and the case sufficiently close, that the defendant, appellee here, should be given a new trial as ordered by the district court under any applicable “harmless error” standard. Harrington v. California, 395 U.S. 250, 254, 89 S. Ct. 1726, 23 L.Ed.2d 284 (1969); Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Accordingly we need not decide whether jury verdicts tainted by racially prejudicial statements by the prosecutor should be measured by the harmless error test, but rather should receive automatic reversal. Racially prejudicial remarks are, however, so likely to prevent the jury from deciding a case in an impartial manner and so difficult, if not impossible, to correct once introduced, that a good argument for applying a more abolute standard may be made. See Note, Harmless Constitutional Error: A Reappraisal, 83 Harv. L.Rev. 814, 820-24 (1970).

Thus, we affirm the judgment below.

Judgment affirmed.

MULLIGAN, Circuit Judge

(concurring) :

I concur in the opinion of Judge Oakes. I cannot agree with Judge Hays that the comments of the prosecutor here, while admittedly vulgar and revolting, do not rise or perhaps fall to the level of unconstitutionally prejudicial conduct. The majority opinion sets forth in detail the demeaning comments of the prosecutor who was trying black men before an all white jury. In light of his prior comments, the closing sentences of the summation to the jury constitute a blatant appeal to racial prejudice.

We cannot take these people out of the community unless you twelve people sittingUn judgment on these matters decide these things have got to stop. I ask you to find these defendants guilty on all counts of this indictment and you can go home with the clearest conscience that you have ever had.

There is no doubt after reading the entire charge that “these people” are not simply these defendants but these black people. There is no room for this in a state court or in a federal court and the paucity of direct authority for finding it constitutionally offensive, is attributable hopefully to the fact that prosecutors today rarely, if ever, seek to introduce the poison of prejudice into the deliberative processes of the jury. I am persuaded that this was done here and that this petitioner was not simply a member of a race which was viewed with contempt but that he was denied due process.

HAYS, Circuit Judge:

I reluctantly dissent.

Unlike the majority I can find no suggestion in what the prosecutor said during the trial that, for example, blacks are more likely to commit crimes than whites or that black witnesses are less reliable than white. What I find is such dismal (and untrue) clichés as that all blacks look alike or that all black girls are sexually promiscuous or that black hairdos are particularly unattractive.

Influenced by understandable outrage at the nauseating remarks of the prosecutor, my colleagues have been led to disregard the difference between revolting vulgarity and unconstitutionally prejudicial conduct.

      . Two of the witnesses apparently saw Haynes at a lineup at which he was the only man wearing a raincoat and beret. Petitioner raised several other grounds for relief below including a claim that the lineups were improperly suggestive and that he was denied the right to counsel at the lineup. Since Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967), was not decided until after the verdict in appellee’s case and is not retroactive, 388 U.S. at 296-301, 87 S.Ot. 1967, petitioner’s claim on this issue cannot now be heard. His failure to raise this claim in the state courts, moreover, would preclude his assertion of it under 28 U.S.C. § 2254(b). Appellee also claimed that the trial court’s granting of dismissal as to a codefendant and that admission of the confession of a codefendant who, however, testified favorably for the appellee, violated his constitutional rights, but he has abandoned those claims —correctly, we think — on this appeal.

      . The trial court held that while a number of non-racial remarks by the prosecutor might have constituted reversible error in a trial in the federal courts, the errors did not rise to constitutional dimensions, relying upon Buchalter v. New York, 319 U.S. 427, 431, 63 S.Ct. 1129, 87 L.Ed. 1492 (1943), and United States ex rel. Castillo v. Fay, 350 F.2d 400, 401 (2d Cir. 1965), cert. denied, 382 U.S. 1019, 86 S.Ct. 637, 15 L.Ed. 533 (1966).

      . We must bear in mind what these remarks consisted of and their implications —not incidentally, this was an all-white jury trying a black man — to a listener supposedly trying to decide a case without bias, prejudice, passion or discrimination. Remember, it is “them” to whom this prosecutor was referring, “them” being “colored people.” He says if you’ve been living with and dealt with “them” you can “discern the different shades and so on.” (We white people don’t have “different shades.”) The defense attorney is said by the prosecutor to “know their weaknesses and inability to do -certain things that maybe are commonplace for the ordinary person” — imagine, the “ordinary person”! Cf. Simmons v. State, 14 Ala.App. 103, 104, 71 So. 979 (1916) (“You must deal with a Negi’o in the light of-the fact that he is a Negro, and applying your experience and common sense” held prejudicial error). What he means is the white person, of course. And “to do or remember or know certain things.” So “they,” the “colored people,” are unable to “do,” “remember” or even “know” certain things; they have “weaknesses” unlike you white jurors and I, a white prosecutor — they’re inferior to us superiors (and hence more likely to steal like this defendant?). “The maturity among these people becomes quite evident quite quickly” — again, “they” are different from you and me. “Again, 1 point to the fact that she is a colored girl”— as if you needed any reminding — “She knows the young bucks in that neighborhood . . .” Cf. Harris v. State, 22 Ala.App. 121, 122, 113 So. 318 (1927) (“. . . a great big buck Negro didn’t have any need to throw a gun on that little fellow,” along with other remarks, held prejudicial error). The “young bucks” at least are not said to have “shuffled” or “danced” or “to be always laughing” or to be lazy, or to fit some other white racially prejudiced stereotype, even if the connotation of “young bucks” is one of fastness, looseness, perhaps coupled (cf. United States v. Grey, 422 F.2d 1043 (6th Cir. 1970) (discussed in note 4 infra)) with going out with white women (did it ever occur to you that this defendant might have gone out with a white woman ; we’d better convict him). And then some talk about colored people and their hair-straightening and their “somewhat exotic hair-dos, male and female” — unlike us white people (did you ever see a white person with an exotic hair-do, perish the thought, at least not right here in River City). “Most of the hair-dos take the form of a skull cap type hair-do, plastered down .... Others are taking the trend of the current day, of the long hair” (hippies, too, are not to bo trusted). But this defendant, oh yes — “The long hair as described by Mrs. Balón, being pulled down, plastered down on the side of the head and by Investigator Demler, who described it as long.” Again, “This is not the type of sideburns that we (white people) usually think of when we” (as opposed to “them”) “think of sideburns.” The summation-was immersed in prejudice, some of it subconscious perhaps, but prejudice nevertheless.

      . In Grey, reversal occurred where the prosecutor asked a character witness for the defendant whether he knew “that Grey, a Negro and a married man, was ‘running around with a white go-go dancer.’" 422 F.2d at 1044-1045. The court said: “At best, the entire question was a magnificent irrelevance ....
      At worst, the gratuitous reference to the race of the go-go dancer may be read as a deliberate attempt to employ racial prejudice to strengthen the hand of the United States government. The United States needs and desires no such aid.” 422 F.2d at 1045.

      . Society may be endangered as much by
      the violence of its friends as of its enemies, and an appeal to prejudice as a factor in determination of guilt is, in the final analysis, an appeal to violence. The majesty of the law must remain unchallenged. It is threatened by each trial where there is a justified doubt of fairness and impartiality.
      People v. Malkin, 250 N.Y. 185, 201, 164 N.E. 900, 907 (1928) (Lehman, J.).

      . By framing the question in this fashion we distinguish the cases in which the conduct of state prosecutors, not involving appeals to racial prejudice, has been held not to reach the limits of violating constitutionally guaranteed due process. See United States ex rel. Castillo v. Fay, supra note 2, 350 F.2d at 401, and cases cited. We note also that a number of the prosecutor’s remarks in this case— not appealing to racial prejudice — would bave justified reversal in a federal appeal, but we do not, on this collateral attack, reach the question whether the resulting prejudice assumed constitutional dimensions. More than once, for example, the prosecutor evinced his personal belief in petitioner’s guilt. We thus agree with the district court’s treatment of the summation, differentiating between the racial and non-racial remarks.

      . ... On November 3 the petitioners
      were brought into Court, informed that a certain lawyer was appointed their counsel and were placed on trial before a white jury — blacks being systematically excluded from both grand and petit juries. The Court and neighborhood were thronged with an adverse crowd that threatened the most dangerous consequences to anyone interfering with the desired result. The counsel did not venture to demand, delay or a change of venue, to challenge a juryman or to ask for separate trials. He had had no preliminary consultation with the accused, called no witnesses for the defence [sic] although they could have been produced, and did not put the defendants on the stand. The trial lasted about three-quarters of an hour and in less than five minutes the jury brought in a verdict of guilty of murder in the first degree ....
      Moore v. Dempsey, 261 U.S. 86, 89, 43 S.Ct. 265, 266, 67 L.Ed. 543 (1923).

      . The petitioners . . . are negroes
      charged with the crime of rape, committed upon the persons of two white girls . . . . [287 U.S. at 49, 53 S.Ct. at 57] Before the train reached Scottsboro, Alabama, a sheriff’s posse seized' the defendants and two other negroes The sheriff thought it necessary to call for the militia to assist in safeguarding the prisoners ....
      It is perfectly apparent that the proceedings, from beginning to end, took place in an atmosphere of tense, hostile and excited public sentiment .... [287 U.S. at 51, 53 S.Ct. at 57] However guilty defendants, upon due inquiry, might prove to have been, they were, until convicted, presumed to be innocent. It was the duty of the court having their cases in charge to see that they were denied no necessary incident of a fair trial. [287 U.S. at 52, 53 S.Ct. at 58]

      . See Bolling v. Sharpe, 347 U.S. 497, 499, 74 S.Ct. 693, 694, 98 L.Ed. 884 (1954) (“ . . . discrimination may be so unjustifiable as to be violative of due process”) .

      . The defense attorney made quite a perceptive argument attacking each prosecution witness’s opportunity for observation, memory, suggestibility, and the like, emphasizing the lineup’s suggestibility, the conflicts between witnesses, and pointing out that $60, the customer’s wallet and the robber’s gun were not found. Just what the State means by a “blatant racial appeal” is unclear. If it means that a defense attorney cannot attack a juror’s potential racial prejudice by direct reference to it and an appeal to cast it aside, or that by doing so, the defense invites a counter attack by way of an appeal to race prejudice, this suggestion falls on deaf ears in this court. What may have been Clarence Darrow’s finest summation was just such an argument, made when he was defending the Sweet case in Detroit in 1926. 'See You Can’t Dive There in Attorney for the Damned 229-63 (A. Weinberg ed. 1957).

      . The prosecutor referred to the “young McCray girl [a sister of a codefendantl who . . . had her first baby at 15.” lie then went on to say, in what is surely a racial slur, “She is now married at 16 with another baby on the way” to dramatize the early maturity of “these people.”

      . The appellee, Haynes, was 32 at the time of the robbery; Martin apparently knew Cox, a codefendant, who was 17.

      . This is not a case like Milton v. Wainwright, 407 U.S. 371, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972) ; Schneble v. Florida, 405 U.S. 427, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972) ; or Harrington v. California, 395 U.S. 250, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969), all of which involved evidentiary prejudice, and in each of which the challenged evidence was corroborative or cumulative only. As the State concedes, where the constitutional error is a denial of fundamental fairness, and threatens the integrity of the fact evaluation and guilt adjudication process itself, there is by definition obvious prejudice. United States ex rel. Maselli v. Reincke, 383 F.2d 129, 133 n. 4 (2d Cir. 1967). See generally Note, Harmless Constitutional Error: A Reappraisal, 83 Harv.L.Rev, 814 (1970).

      . The argument from the length of jury deliberations — used so often — outs both ways, however, since longer deliberations, especially when coupled with questions, as here, relating to the evidence, may indicate that the jury was considering the merits rather than being governed by its prejudices. On the other hand, who is to say that prejudice may not have tipped the scales in the final analysis — “oh, you can’t believe a thing ihey say.”

       For an interesting parallel see the last sentence of the Commonwealth’s summation in the Saeeo-Vanzetti trial:
      Gentlemen of the jury, do your duty. Do it like men. Stand together, you men of Norfolk! characterized by Felix Frankfurter as “an appeal to their solidarity against the alien.” F. Frankfurter, The Case of Sacco and Vanzetti 64 (Little, Brown & Co. 1962).


source: Caselaw Access Project

author: WEICK, Circuit Judge.

license: Public Domain

text:
    BUCKEYE POWER, INC., et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. EAST KENTUCKY RURAL ELECTRICAL COOPERATIVE CORPORATION et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent. BIG RIVERS RURAL ELECTRIC COOPERATIVE CORPORATION et al., Petitioners, v. ENVIRONMENTAL PROTECTION AGENCY, Respondent.
    Nos. 72-1628, 72-1629 and 72-1632.
    United States Court of Appeals, Sixth Circuit.
    Argued April 9, 1973.
    Decided June 28, 1973.

      Leslie Henry, Wilson W. Snyder, Toledo, Ohio, on brief, for all petitioners; Fuller, Henry, Hodge & Snyder, Toledo, Ohio, of counsel.
    William D. Ruckelshaus, Admr., John R. Quarles, Gen. Counsel, Environmental Protection Agency, Washington, D. C., Kent Frizzell, Asst. Atty. Gen., Land & Natural Resources Div. Dept, of Justice, Edmund B. Clark, Appellate Section, Peter R. Steenland, Washington, D. C., John E. Varnum, Alexandria, Va., for appellees.
    Ed W. Hancock, Atty. Gen., David B. Beals, Kenneth A. Howe, Asst. Attys. Gen., Frankfort, Ky., for Commonwealth of Kentucky, intervenor; John E. Varnum, Appellate Section, Dept, of Justice on brief.
    Before WEICK and PECK, Circuit Judges, and CECIL, Senior Circuit Judge.
   WEICK, Circuit Judge.

The petitioners are public utility companies which operate power plants within the State of Ohio and the Commonwealth of Kentucky. Pursuant to the Clean Air Act Amendments of 1970, 42 U.S.C. §§ 1857 to 1858 (1973 Supp.), Ohio and Kentucky submitted pollution-abatement plans to the Administrator of the Environmental Protection Agency (EPA). The implementation plans, with minor exceptions not here relevant, were approved by the Administrator.

The public utility companies have petitioned this Court, under the provisions of 42 U.S.C. Section 1857h-5(b) (1), to review the Administrator’s action in approving the state plans.

Petitioners then filed a motion in this Court to require the Agency (EPA) to supplement the record with transcripts of the public hearings held in Ohio and Kentucky in connection with the adoption of the plans, to determine the scope of review, and to remand to the Agency for compliance with our determinations. Briefs and appendices were filed, and the motion and the Agency’s response thereto were argued orally to the panel.

Petitioners contend that the approval of the state plans by the Administrator violated the law in three particulars, namely, (1) the Administrator did not permit interested parties, including the petitioners, to participate in the proceedings through submission of written data, views and arguments, as required by Section 4 of the Administrative Procedure Act (APA), 5 U.S.C. § 553 (1967); (2) the plans were approved without regard to the fact that it is impossible for the petitioners to comply with the standards of the plans; and (3) the plans were approved without the filing of an Environmental Impact Statement.

We hold that the Administrator’s approval of the Ohio and Kentucky plans without permitting participation by interested parties was a violation of the Administrative Procedure Act. We further hold that it was not necessary that the Administrator conduct full-scale hearings on the impossibility-claims of the individual petitioners, such claims being assertable as a defense in future federal or state enforcement proceedings. We hold that the Agency need not supplement the record with transcripts of the public hearings in Ohio and Kentucky. Finally, we hold that the Administrator was not required under the National Environmental Policy Act, 42 U. S.C. §§ 4321 to 4347 (1973 Supp.), to file an Environmental Impact Statement prior to the approval of the state pollution-abatement plans.

HISTORY AND STRUCTURE OF THE CLEAN AIR ACT

The problem of air pollution in the United States has been under the consideration of Congress for many years. In 1955 the Committee on Interstate and Foreign Commerce reported favorably on the basic legislation establishing the federal air pollution research and technical assistance program which became Public Law 159 of the 84th Congress, 69 Stat. 322.

On a somewhat regular basis, this initial legislation has been modified to improve, strengthen and accelerate programs for the abatement and prevention of air pollution. Pub.L. 88-206, 77 Stat. 392; Pub.L. 89-272, 79 Stat. 992; Pub. L. 90-148, 81 Stat. 485.

However, it was not until the Clean Air Act Amendments of 1970 that Congress restructured the Act in a manner designed to insure unequivocally the reduction of air pollution. The House Report on the 1970 Amendments put it this way:

“The purpose of the legislation reported unanimously by your committee is to speed up, expand, and intensify the war against air pollution in the United States with a view to assuring that the air we breathe throughout the Nation is wholesome once again. The Air Quality Act of 1967 (Public Law 90-148) and its predecessor acts have been instrumental in starting us off in this direction. A review of achievements to date, however, make abundantly clear that the strategies which we have pursued in the war against air pollution have been inadequate in several important respects, and the methods employed in implementing those strategies often have been slow and less effective than they might have been.” (H.Rep.No. 91-1146, 91st Cong., 2d Sess. 1 (1970); 3 U.S.Code Cong. & Admin. News 5356 (1970)).

The 1970 Clean Air Act Amendments, in an effort to achieve the goal of elimination of air pollution, revamped the entire predecessor legislation. It incorporated a dual (state-federal) approach to curbing air pollution and provided substantial penalties for failure of compliance, i. e., not more than a $25,000-fine per day or one year imprisonment, or both, for the first conviction, and a $50,000-fine per day or two years’ imprisonment, or both, for a violation after the first conviction. 42 UiS.C. § 1857c-8(c) (1973 Supp.).

The numerous and detailed provisions of the 1970 Act make it indeed intricate. A basic outline of its structure, however, will facilitate the understanding of the contentions of the parties here.

Within thirty days after enactment of the 1970 Act the Administrator of the EPA was required to promulgate and publish national ambient [general atmospheric] air quality standards for major air pollutants. These standards were subdivided into two major groups: primary ambient air quality standards, and secondary ambient air quality standards. 42 U.S.C. § 1857c-4 (1973 Supp.).

Following publication of these standards, each state was required to hold public hearings and to adopt a plan within guidelines provided by the Administrator and published in the Code of Federal Regulations, for the aid of the states, such plan providing for the implementation, maintenance and enforcement of national primary and secondary ambient air quality standards. The state plans had to provide for the attainment of primary standards within three years of the date of approval of the plans. Moreover, the plans had to be completed and sent to the Administrator for approval within nine months of the date of promulgation of the air quality standards. 42 U.S.C. § 1857c-5 (1973 Supp.).

After these state plans were submitted to him, the Administrator was required to approve or disapprove them (or portions thereof) within four months. Specifically, the Act provides:

“(2) The Administrator shall, within four months after the date required for submission of a plan under paragraph (1), approve or disapprove such plan or each portion thereof. The Administrator shall approve such plan, or any portion thereof, if he determines that it was adopted after reasonable notice and hearing and that—
(A)(i) in the case of a plan implementing a national primary ambient air quality standard, it provides for the attainment of such primary standard as expeditiously as practicable but (subject to subsection (e) of this section) in no case later than three years from the date of approval of such plan (or any revision thereof to take account of a revised primary standard); and (ii) in the case of a plan implementing a national secondary ambient air quality standard, it specifies a reasonable time at which such secondary standard will be attained; . . . .” (42 U.S.C. § 1857c-5(a) (1973 Supp.)).

After the approval or disapproval of a state plan by the Administrator, interested parties who desired to review his action were required within thirty days to file a petition for review in the United States Court of Appeals having jurisdiction over their area. Section 1857h-5(b)(1) of Title 42 U.S.C. provides:

“ . . .A petition for review of the Administrator’s action in approving or promulgating any implementation plan under section 1857c-5 of this title . . . may be filed only in the United States Court of Appeals for the appropriate circuit. Any such petition shall be filed within 30 days from the date of such promulgation or approval, . . . . ”

If a party fails to petition for review of the approval or disapproval of a state plan as prescribed by Section 1857h-5(b)(1), he is thereafter precluded from asserting the impropriety of the Administrator’s action in this regard.

“Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement.” (42 U.S.C. § 1857h-5(b)(2) (1973 Supp.)).

Having submitted an approved plan, the state, with a single exception, is barred from modifying the provisions of its plan. The exception is found in Section 1857e-5(f)(1), wherein it is provided :

“Prior to the date on which any stationary source or class of moving sources is required to comply with any requirement of an applicable implementation plan the Governor of the State to which such plan applies may apply to the. Administrator to postpone the applicablity of such requirement to such source (or class) for not more than one year.”

Once a plan is approved, the state may enforce the provisions of its plan against its citizens in its own courts. 42 U.S.C. § 1857c-9(b) (1) (1973 Supp.). However, it is important to note that such an undertaking on the part of the state does not detract from the Administrator’s primary ability to enforce federally the provisions of every state plan against citizens of that state which drew the plan.- 42 U.S.C. §§ 1857C-8 & 1857e-9(b)(2) (1973 Supp.).

On April 30, 1971, national ambient air quality standards for six pollutants were promulgated by the Administrator. 35 Fed.Reg. 8186, et seq. On August 14, 1971, the Administrator promulgated implementation plan guidelines which he had earlier proposed. 36 Fed.Reg. 15486, et seq. Under those guidelines adopted state plans were to be submitted to the Administrator by January 31, 1972.

Four months later, on May 31, 1972, the Administrator published his approvals and disapprovals of 55 state implementation plans. 37 Fed.Reg. 10842, et seq. The Administrator took no comments from interested parties, and permitted no public participation in the decision to approve or disapprove the plans.

On June 23d and June 26, 1972, within thirty days of the Administrator’s approval and disapproval of the various state plans, the petitioners filed their petitions for review, pursuant to 42 U. S.C. § 1857h-5(b) (1) (1973 Supp.). They allege that the plans, as approved by the Administrator, would require eventually that most of the petitioners’ generating plants be shut down and would require the cessation of new plant construction. Specifically, they allege that there is presently no technologically feasible method of removing from their coal-burning emissions an amount of sulfur sufficient to meet the standards, and that they cannot switch to “clean fuels”, such as natural gas, because such resources are now unavailable.

While the main concern of the petitioners is that these impossibility-claims should be taken into account by the Administrator in approving state plans, they also attack and seek to set aside the Administrator’s approval of the Ohio and Kentucky plans on two additional levels: (1) that he did not permit participation of interested parties prior to approval of the state plans; and (2) that he did not file an Environmental Impact Statement.

The Agency defends the actions of the Administrator on three alternative grounds. It asserts that individual claims of impossibility are irrelevant under the Clean Air Act Amendments of 1970. It asserts that even if such claims are relevant, the petitioners have already had an opportunity to present such claims at the state level, in state hearings, and that it is unnecessary to permit duplication at the federal level. Finally, it asserts that even if the claims are relevant and the state hearings are insufficient, the Clean Air Act Amendments of 1970 provide no point in the development of an approved pollution-abatement plan at which such claims may be presented.

IS CLAIM OF IMPOSSIBILITY OF COMPLIANCE RELEVANT UNDER THE ACT?

The Agency’s position that claims of individual impossibility of compliance are irrelevant under the Act is based upon two statements found in the legislative history of the 1970 Amendments.

Legislative history is useful as an aid in the construction of an ambiguous statute, but care must be taken that it not be permitted to serve unreasonable ends. It is of little value where it contains conflicting reports of committees.

The report on the Senate Bill stated: “ . . . [T]he health of people is more important than the question of whether the early achievement of air quality standards protective of health is technically feasible . Therefore the Committee determined that existing sources of pollutants either should meet the standard of the law or be closed down.” (S.Rept.No.91-1196, 91st Cong., 2d Sess., pp. 2-3 (1970)).
Senator Edmund Muskie stated:
“Predictions of technological infeasibility were not considered sufficient reasons to compromise the public health.” (116 Cong.Rec. (daily ed.) S.20598, Dec. 18, 1970).

No such language is contained in the Act, but if such language is given effect the electric utilities plants in Ohio and Kentucky would be closed down and possibly those throughout the United States. If Congress intended such a far-reaching result in the 1970 Amendments to the Act, it certainly would have mentioned such an intention in the body of Amendments.

However, the Senate Report and the statement of the Senator are, in fact, contradicted on several levels. First, it must be noted that although the legislative history cited above is from the Senate, the House Bill on amending the Clean Air Act was passed in lieu of the Senate Bill. See 3 U.S.Code Cong, and Admin.News, 91st Cong., 2d Sess., p. 5356 (1970). Moreover, in the legislative history from the House we find the following statements:

“Whenever the Secretary finds that as a result of the failure of a State to enforce the plan applicable to such State, any ambient air quality standard is not met, the Secretary is directed to notify the affected State or States, persons not in compliance with the plan and other interested parties. If the failure of the State to take action extends beyond the 30 days after the Secretary’s notification, the Secretary may request the Attorney General to bring a suit on behalf of the United States in the appropriate U.S. district court to secure abatement of the pollution. The court may enter such judgment and orders as it deems necessary in the public interest and the equities of the case. In so doing the court must give due consideration to the practicability and to the technological and economic feasibility of complying with the provisions of the plan.” (Emphasis added). (H.R. Rep.No.91-1146, 91st Cong., 2d Sess. (1970) ; 3 U.S.Code Cong. & Admin. News 5364 (1970)).

Second, in the implementation plan guidelines issued by the Administrator to aid the states in formulating pollution-abatement plans, specific recognition is given to cost-effectiveness and resource availability. The guidelines state:

“Nothing in this part shall be construed in any manner:
(b) To encourage a State to adopt any particular control strategy without taking into consideration the cost-effectiveness of such control strategy in relation to that of alternative control strategies.
(d) To encourage a State to prepare, adopt, or submit a plan without taking into consideration the social and economic impact of the control strategy set forth in such plan, including, but not limited to, impact on availability of fuel, energy, transportation, and employment.” (40 C.F.R. § 51.2 (1972)).

We find the Agency’s argument that technological infeasibility, high cost-benefit, and resource unavailability are irrelevant under the 1970 Amendments, devoid of merit.

THE STATE PROCEEDINGS

The Agency and the Intervenor argue that the question of when the petitioners will have an opportunity to present their claims at the federal level is irrelevant, since the petitioners have had or will have opportunities to present such claims at the state level at the hearing prior to the adoption of the plan, or at such time as the Governor may apply for an extension of time on behalf of the petitioners, or at the state enforcement proceedings against the petitioners.

We cannot accept this argument except as to state enforcement proceedings. Regardless of what has happened or what will occur at the state level before state administrators, the simple fact is that the plans of Ohio and Kentucky, as they now stand, are subject to federal enforcement. In other words, even though the states may choose to exempt the petitioners in some manner or make accommodations to their predicament, the federal government can still enforce the existing plan in federal courts. 42 U.S.C. §§ 1857c-8, 1857c-9(b)(2) (1973 Supp.).

Such a result is not idle spéculation. In Getty Oil Co. (Eastern Operations) v. Ruckelshaus, 467 F.2d 349 (3d Cir. 1972), cert. denied, 409 U.S. 1125, 93 S. Ct. 937, 35 L.Ed.2d 256 (1973), the background events of the case were explained as follows:

“On December 29, 1971, Getty instituted an action in the Delaware Chancery Court seeking a temporary restraining order against enforcement of the challenged regulation by the state Secretary pending disposition of Getty’s appeal to the Delaware Water and Air Resources Commission. The restraining order was granted on December 30, 1971.” (467 F.2d at 354).

Shortly after this state court injunction was issued, the Administrator of the EPA sent a letter informing the parties that violations of the existing Delaware plan were occurring. Approximately thirty days thereafter an. order was issued by the Administrator against violations of the plan, pursuant to 42 U. S.C. § 1857c-8(a) (1) (1973 Supp.). Getty was then forced to seek remedies in the federal court notwithstanding the state court injunction on enforcement at the state level.

The additional state remedy found in 42 U.S.C. § 1857e-5(f) (1973 Supp.) is in reality no remedy at all. This section provides:

“Prior to the date on which any stationary source or class of moving sources is required to comply with any requirement of an applicable implementation plan the Governor of the State to which such plan applies may apply to the Administrator to postpone the applicability of such requirement to such source (or class) for not more than one year.” (42 U.S.C. § 1857c-5(f)(l)).

Not only is such a “remedy” limited to a one-year extension of time for compliance, but it is within the sole discretion of the Governor to apply for such extension and it is within the sole discretion of the Administrator to approve it. This is hardly a substitute for a mandatory federal consideration of the petitioners’ claims of high cost-benefit, technological infeasibility, and resource unavailability.

THE PROCEDURAL REQUIREMENTS

Having determined that the claims of the petitioners are relevant under the Clean Air Act Amendments of 1970, and having determined that state procedures were inadequate to protect the interests of the petitioners, the core question in this action remains: At what stage and in what manner are the petitioners’ claims to be considered?

The EPA, as an agency of the United States Government, is subject to the provisions of the Administrative Procedure Act (APA, 5 U.S.C. § 500 et seq. (1967)). Section 551 of the APA provides that for the purposes of the Act—

“. . . “[Ajgency’■ means each authority of the Government of the United States, whether or not it is within or subject to review by another agency . . . .”

The APA establishes procedural requirements for three occasionally overlapping administrative functions: individual adjudication, adjudicatory-type rulemaking, and informal rulemaking. 5 U.S.C. §§ 553, 554 (1967).

The petitioners first assert that the action of the Administrator in approving or disapproving the submitted state plans constituted, at the minimum, informal rulemaking. Therefore, they assert, since he did not comply with the requirement of the APA that he permit participation and accept data and other comments from interested parties, his approval of the plan should be vacated and the case remanded with instructions to comply with the APA. We agree.

Section 553 of the APA provides in part:

“Rule making
(c) After notice required by this section, the agency shall give interested persons an opportunity to participate in the rule making through submission of written data, views, or arguments with or without opportunity for oral presentation. After consideration of the relevant matter presented, the agency shall incorporate in the rules adopted a concise general statement of their basis and purpose.” (5 U.S.C. § 553 (1967)).

Thus, as a general proposition, administrative rulemaking must permit some public participation in the decision-making, and, in a generalized way, it must articulate its bases and purposes.

The Supreme Court, in Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971), explained why these basic requirements for administrative rule-making are necessary, stating that without permitting public participation and without developing the record, the administrative agencies would nullify the federal courts’ function of administrative review. The Court stated:

“Scrutiny of the facts does not end, however, with the determination that the Secretary has acted within the scope of his statutory authority. Section 706(2) (A) requires a finding that the actual choice made was not ‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.’ 5 U.S.C. § 706(2) (A) (1964 ed., Supp. V). To make this finding the court must consider whether the decision was based on a consideration of the relevant factors and whether there has been a clear error of judgment. Jaffe, supra, at 182. See McBee v. Bomar, 296 F.2d 235, 237 (CA6 1961); In re Josephson, 218 F.2d 174, 182 (CA1 1954); Western Addition Community Organization v. Weaver, 294 F.Supp. 433 (N.D.Cal.1968). See also Wong Wing Hang v. Immigration and Naturalization Serv., 360 F.2d 715, 719 (CA2 1966). Although this inquiry into the facts is to be searching and careful, the ultimate standard of review is a narrow one. The court is not empowered to substitute its judgment for that of the agency.” (Emphasis added). (401 U.S. at 416, 91 S.Ct. at 824).

Similar and closer to the point in this case are the remarks of the Court in Environmental Defense Fund, Inc. v. Environmental Protection Agency, 150 U.S.App.D.C. 348, 465 F.2d 528, 540-541 (1972), wherein the Court had this to say about actions of the Administrator of the EPA:

“We recognize that EPA’s functions are difficult and demanding and are impressed by the thoughtfulness and range of EPA’s general approach; nor have we any reason to doubt the wisdom and validity of its specific decisions. But the demand of functions so difficult of decision are accompanied by demands, equally difficult to meet, for attentive consideration and careful exposition. Our own responsibility as a court is as a partner in the overall administrative process — -acting with restraint, but providing supervision. We cannot discharge our role adequately unless we hold EPA to a high standard of articulation. Kennecott Copper Corp. v. EPA, 149 U.S.App.D.C. 231, 462 F.2d 846 (1972).”

It has been recognized consistently that without informed judicial review of agency actions, “. . . expertise, the strength of modern government, can become a monster which rules with no practical limits on its discretion.” New York v. United States, 342 U.S. 882, 884, 72 S.Ct. 152, 153, 96 L.Ed. 662 (1951) (dissenting opinion), quoted in Burlington Truck Lines v. United States, 371 U.S. 156, 167, 83 S.Ct. 239, 9 L.Ed.2d 207 (1962).

The Administrator built no record in •approving or disapproving the state plans. He took no comments, data, or other evidence from interested parties, nor did he articulate the basis for his actions. This failure contravenes the explicit dictates of Section 553 of the APA and renders meaningless the judicial review provisions of Section 706.

The approval of the Ohio and Kentucky plans by the Administrator pursuant to 42 U.S.C. § 1857-5(a)(2) (1973 Supp.) must therefore be deferred until such time as the Administrator complies with Section 553 of the APA. The petitioners may, 'subsequent thereto, attack the actions of the Administrator on the grounds that there was a “clear error of judgment.” Citizens To Preserve Overton Park, Inc. v. Volpe, supra, 401 U.S. at 416, 91 S.Ct. 814.

However, as heretofore noted, the petitioners herein do not simply request a remand with instructions to adhere to the informal rulemaking dictates of Section 553 of the APA; they also request a full-scale evidentiary hearing before the Administrator to adjudicate their complex and intricate claims of high cost-benefit, technological infeasibility and resource unavailability. We cannot accept this position.

Administrative rulemaking which is to be preceded by extensive hearings where “[a] party is entitled to present his ease or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts . . .” (5 U.S.C. § 556(d) (1967)) is required only when the last sentence of Section 553(c) of the APA applies. This section provides:

“When rules are required by statute to be made on the record after opportunity for an agency hearing, sections. 556 and 557 of this title apply instead of this subsection.” (Emphasis added). (5 U.S.C. § 553(c) (1967)).

(Sections 556 and 557 of the APA outline the requirements for extensive, adjudicatory-type hearings.)

Thus, when a statutory provision directing certain agency action states that such action shall be “made on the record after opportunity for an agency hearing,” then, and only then, is the agency required to have full-scale adjudicatory hearings prior to rulemaking.

The Supreme Court has recently considered an argument that an adjudicatory-type rulemaking requirement should apply to agency action even though this type of hearing was not specified in the statute empowering agency action. In United States v. Allegheny-Ludlum Steel Corp., 406 U.S. 742, 756-757, 92 S.Ct. 1941, 1950, 32 L.Ed.2d 453 (1972), a unanimous Court stated:

“Appellees claim that the Commission’s procedure here departed from the provisions of 5 U.S.C. §§ 556 and 557 of the Act. Those sections, however, govern a rulemaking proceeding only when 5 U.S.C. § 553 so requires. The latter section, dealing generally with rulemaking, makes applicable the provisions of §§ 556 and 557 only ‘[w]hen rules are required by statute to be made on the record after opportunity for an agency hearing .’ The Esch Act, authorizing the Commission ‘after hearing, on a complaint or upon its own initiative without complaint, [to]' establish reasonable rules, regulations, and practices with respect to car service . . . ,’ 49 U.S.C. § 1(14) (a), does not require that such rules ‘be made on the record.’ 5 U.S.C. § 553. That distinction is determinative for this case. ‘A good deal of significance lies in the fact that some statutes do expressly require determinations on the record.’ 2 K. Davis, Administrative Law Treatise § 13.08, p. 225 (1958). Sections 556 and 557 need be applied ‘only where the agency statute, in addition to providing a hearing, prescribes explicitly that it be “on the record.” ’ Siegel v. Atomic Energy Comm’n, 130 U.S.App.D.C. 307, 400 F.2d 778, 785 (1968); Joseph E. Seagram & Sons Inc. v. Dillon, 120 U.S.App.D.C. 112, 344 F.2d 497, 500 n. 9 (1965). Cf. First National Bank v. First Federal Savings & Loan Assn., 96 U.S.App.D.C. 194, 225 F.2d 33 (1955).”

See also, International Harvester Co. v. Ruckelshaus, 478 F.2d 615, at 629 (D.C. Cir.1973), decided Feb. 10, 1973.

There is no provision that, in approving or disapproving proposed state pollution-abatement plans pursuant to 42 U. S.C. § 1857c-5(a) (2) (1973 Supp.), the Administrator shall make a determination “on the record after an opportunity for an agency hearing.” Furthermore, when Congress intended that actions of the Administrator of the EPA be preceded by adjudicatory-type hearings it either specifically outlined the type of hearings, (42 U.S.C. § 1857f-5a(c) (1) (1973 Supp.)), or invoked the determination “on the record” provision of 5 U. S.C. § 553(c) (1967). See 42 U.S.C. § 1857c-5(f)(2) (1973 Supp.); 42 U.S.C. § 1857Í-5(b)(2)(B) (1973 Supp.). On these grounds alone we would reject the petitioners’ argument that the Administrator is required to have full-scale adjudicatory-type hearings prior to acceptance of the state plans.

There is, however, an additional reason why adjudicatory-type hearings cannot be required of the Administrator prior to approval of state plans. Section 1857c-5(a) (2) provides that within four months of submission of the state plans, the Administrator is required to take final action on all of them. It can hardly be expected that extensive hearings (as outlined in Sections 556 and 557 of the APA) on more than fifty state plans, affecting virtually every pollutant source in the United States, could be held and acted upon rationally within a four months’ period.

There remains, of course, an important question: If the petitioners are not entitled to. raise their claims of high cost-benefit, technological infeasibility and resource unavailability prior to the Administrator’s approval of the state plans, at what point can these claims be asserted?

The answer is found in 5 U.S.C. § 703 (1967), which provides in part:

“Except to the extent that prior, adequate, and exclusive opportunity for judicial review is provided by law, agency action is subject to judicial review in civil or criminal proceedings for judicial enforcement.”

Since we have determined that there could not have been an adequate hearing on individual claims such as those presented by the petitioners herein prior to approval of the state plans, the claims can be asserted as a defense in either federal or state enforcement proceedings.

We are cognizant of the language of 42 U.S.C. § 1857h-5(b) (1) and (2) (1973 Supp.), which provides:

“A petition for review of the Administrator’s action in approving or promulgating any implementation plan under section 1857c-5 of this title . . . may be filed only in the United States Court of Appeals for the appropriate ....
“(2) Action of the Administrator with respect to which review could have been obtained under paragraph (1) shall not be subject to judicial review in civil or criminal proceedings for enforcement.”

However, having determined that review of the petitioners’ claims could not have' been obtained under the provisions of paragraph (1) of that section (the approval of state plans), the preclusion of subsection (2) is simply inapposite.

THE ENVIRONMENTAL IMPACT STATEMENT

The petitioners contend that the Administrator’s approval of the state plans should be held in abeyance until such time as the Administrator files an Environmental Impact Statement pursuant to the National Environmental Policy Act. 42 U.S.C. §§ 4321 to 4347 (1973 Supp.).

Essentially, acceptance of this argument would mean that an agency whose sole purpose is the improvement of the environment, would have to file an Environment Impact Statement with itself. See Reorganization Plan No. 3' of 1970, 84 Stat. 2086. We are in accord with the Third, Fourth and D.C. Circuit holdings that such action on the part of the Administrator is unnecessary. Appalachian Power Co. v. Ruckelshaus, 477 F.2d 495 (4th Cir. 1973), No. 72-1733, decided April 11, 1973; International Harvester Co. v. Ruckelshaus, 478 F.2d 615 (D.C.Cir.1973) decided February 10, 1973; Getty Oil Co. (Eastern Operations) v. Ruckelshaus, 467 F.2d 349 (3rd Cir. 1972), cert. denied, 409 U.S. 1125, 93 S.Ct. 937, 35 L.Ed.2d 256 (1973).

The approval of the state plans by the Administrator is hereby vacated, and the case is remanded to the Agency for compliance with Section 553 of the APA, as articulated in this opinion.

      . Primary ambient air quality standards were defined as standards which “are requisite to protect the public health.” Secondary ambient air quality standards were defined as standards which are “requisite to protect the public welfare from any known or anticipated adverse effects associated with the presence of such air pollutant in the ambient air.” 42 U.S.C. § 1857c-4(b) 1 and 2 (1973 Supp.).

      . It would seem to us that the court which first acquired jurisdiction of enforcement proceedings would have exclusive jurisdiction to proceed to determine the litigation, and its judgment would be res judicata of the issues litigated. In view of the fact that both federal and state courts aequire jurisdiction by a single Act of Congress, we do not think that Congress ever intended that the parties defendant to enforcement proceedings would be subject to double penalties, i. e., penalties in each jurisdiction.

      . “Control strategy” is defined in the guidelines as “a combination of measures designated [designed?] to achieve the aggregate reduction of emissions necessary for attainment and maintenance of a national standard . ” (40 C.F.R. § 51.1 (n) (1972)).

      . The distinction between individual adjudication and rulemaking can become blurred in borderline cases. Administrative adjudication is concerned with the determination of past and present rights and liabilities of parties. Rulemaking, on the other hand, involves the prescription of law to effect broad policy considerations. See American Airlines Co. v. Civil Aeronautics Bd., 123 U.S.App.D.C. 310, 359 F.2d 624, 629 (1966). While rule-making always affects individual rights and liabilities in some measure, a line must be drawn at some point. We have no difficulty in finding that the approval of state plans falls on the rulemaking side of the line even though individual rights will at some time in the future be affected. A contrary finding would mean that every pollutant source in the United States would have to be granted an individual hearing within a four-month period. (This point is discussed subsequently in the body of this opinion.)

      . In Appalachian Power Co. v. Ruckelshaus, 477 F.2d 495 (4th Cir. 1973), No. 72-1733, decided April 11, 1973, the Court held that the petitioners therein could, at a future date, require the Administrator “to take additional testimony as authorized under Section 1857h-5(e)” on their individual attacks relative to the Administrator’s approval of three state plans. Slip Opinion at p. 28. We disagree with this holding to the extent that it requires extensive adjudicatory-type hearings prior to approval of state plans. Section 1857h-5(c) provides in part:
      “In any judicial proceeding in which review is sought of a determination under this chapter required to be made on the record after notice and opportunity for hearing, if any party applies to the court for leave to adduce additional evidence, and shows to the satisfaction of the court that such additional evidence is material and that there were reasonable grounds for the failure to adduce such evidence in the proceeding before the Administrator, the court may order such additional evidence (and evidence in rebuttal thereof) to be taken before the Administrator, in such manner and upon such terms and conditions as to the court may deem proper.” (Emphasis added). Since there is no provision that in ap-
      proving or disapproving state plans pursuant to 42 U.S.C. § 1857e-5(a) (2) (1973 Supp.) the Administrator shall make a determination “on the record after notice and opportunity for hearing”, the section is inapplicable by its own terms.


author: PER CURIAM:

text:
    UNITED STATES of America, Appellee, v. Peter MATUSEWITCH, Appellant.
    No. 959, Docket 72-2438.
    United States Court of Appeals, Second Circuit.
    Argued June 8, 1973.
    Decided June 22, 1973.
    Certiorari Denied Oct. 23, 1973.
    See 94 S.Ct. 297.

      Alfred Lawrence Toombs, New York City, for appellant.
    George- E. Wilson, New York City (Peter L. Truebner, Asst. U. S. Atty., Whitney North Seymour, Jr., U. S. Atty., on the brief), for appellee.
    Before HAYS, MANSFIELD and MULLIGAN, Circuit Judges.
   PER CURIAM:

This is an appeal from a judgment of conviction entered in the United States District Court for the Southern District after a non-jury trial. Appellant Matusewitch was found guilty of failing to register with the Selective Service System in violation of 50 U.S.C. App. § 462 (a). He was sentenced to a term of 3 years in prison but the judge suspended the execution of that sentence and placed the appellant on probation for 5 years upon condition that he register with the Selective Service within 30 days and perform service in the national interest during the probationary period. The sentence was stayed pending this appeal and the appellant was released on his own recognizance. We affirm the judgment of the district court but remand for reconsideration of the sentence imposed upon the appellant.

Appellant appeared at his Selective Service local board on his eighteenth birthday with a letter (which he submitted to the Selective Service clerk) stating that he did not intend to register. He was accompanied by a group of people who supported his decision not to register. It was clear from his actions, his statements and his letter that he would not register for the draft nor answer the questions on the registration form.

Matusewitch claims that he should have been registered involuntarily and that he should have been warned of the penal consequences of his non-registration. However the local board was not required to assume the task of eliciting the required information from a subject who refused to cooperate. Matusewitch had been a draft counselor at a local college and his letter to the local board indicates that he was fully aware of the consequences of his actions.

We also reject the appellant’s contention that he was denied a fair trial by the conduct of the trial judge. While the judge took a very active part in the trial, there was no unfairness or indication of bias in his attitude.

Matusewitch was sentenced as an adult. The trial judge did not indicate that he had given any consideration to the possibility of sentencing him under the provisions of the Youth Corrections Act, 18 U.S.C. § 5010(a). Under the circumstances of this case, the trial judge should have an opportunity to reconsider the sentence imposed upon the defendant. See United States v. Guzman, 478 F.2d 759, 762 (2d Cir. 1973).

Judgment affirmed; remanded for reconsideration of the sentence.


author: KELLEHER, District Judge:

text:
    MONTEREY PUBLIC PARKING CORPORATION, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
    No. 71-1880.
    United States Court of Appeals, Ninth Circuit.
    June 28, 1973.

      Richard Halberstein, Washington, D. C. (argued), Fred B. Ugast, Acting Asst. Atty. Gen., Tax Div., Dept, of Justice, Washington, D. C., James L. Browning, Jr., U. S. Atty., San Francisco, Cal., Meyer Rothwacks, Bennet N. Hollander, Tax Div., Dept, of Justice, Washington, D. C., for defendant-appellant.
    Kenneth A. Ehrman (argued), Monterey, Cal., for plaintiff-appellee.
    Before HAMLIN and ELY, Circuit Judges, and KELLEHER, District Judge.

       Honorable Robert J. Kelleher, United States District Judge, Central District of California, sitting by designation.

   KELLEHER, District Judge:

Appellant seeks reversal of the District Court’s judgment, after trial, granting appellee a refund of income taxes for three prior years upon a finding that the appellee is exempt from federal income taxes under Int.Rev.Code of 1954, § 501 (c)(3) and (4) as either a corporation organized and operated exclusively for charitable purposes, or as a civic league or an organization “not organized for profit but operated, exclusively for the promotion of social welfare.”

In substance, appellant contends that to the extent the trial court failed to examine separately the taxpayer’s claims of exemption, the court erred in its application of the law to the facts because each section describes distinct entities entitled to exemption for distinctly different reasons. Appellant argues that: (1) Section 501(c)(3) “organized and operated exclusively for charitable purposes” means that the primary purpose of the corporation be of a charitable nature and that anything more than an insubstantial or an incidental non-eharitable purpose dictates non-exemption; and (2) under Section 501(c)(4) “not organized for profit but operated exclusively for the promotion of social welfare” means that the taxpayer must be primarily engaged in promoting the common good and general welfare of the community and that, on the basis of the applicable regulation, Treas.Reg. § 1.501(c) (4)-l(ii), a taxpayer is not primarily operated for the promotion of the general welfare if its primary activity “is carrying on a business with the general public in a manner similar to organizations which are operated for profit.” An application of these allegedly proper legal standards to the instant fact situation, appellant contends, demands the conclusion that the District Court’s finding of exemption was clearly erroneous.

The trial court found that:
“. . . the distinction between the two subsections of § 501 is more apparent than real. It is true that applicable regulations seem to allow the carrying on of a business for profit by a (c)(3) organization, while barring such operations for (c) (4) organizations. The Regulations are, of course, given considerable weight by the Courts. [Citation and footnote omitted] But the Regulations must be seen in light of applicable case law, which, in this area at least, has concentrated more on the philosophy behind § 501 as a whole, rather than on variations in the language thereof. [Citations omitted]
“Thus, if this Court were convinced that plaintiff’s organizers, by giving themselves special advertising rights, or by restricting the validation stamp system to certain businesses, were in fact primarily interested in their own ends rather than in those of the public, exemption under neither (c)(4) nor (e)(3) would be possible. Similarly, the operation of a commercial enterprise not in furtherance of an exempt purpose would bar consideration under both subsections. [Footnote omitted] If they are not, the case law under both subsections has made it clear that they will not destroy the exemption claimed. [Citations omitted]
“This Court cannot say that plaintiff corporation, organizationally or operationally, subserves, in any substantial way, private interests. There is no question that all but one of plaintiff’s organizers were businessmen whose establishments would tend to suffer if the traffic problems of downtown Monterey were not soon resolved. . . But this was a threat not only to plaintiffs, but to all the City of Monterey.
“The City of Monterey, therefore, was the primary beneficiary when plaintiff succeeded in constructing public parking facilities without any significant outlay of public funds. .
“Plaintiffs organizers were also undeniably benefitted. But this benefit is indistinguishable from that which inhered to the. community as a whole.” Monterey Public Parking Corp. v. United States, 321 F.Supp. 972, 975-976 (N.D.Cal.1970).

Although it may appear from the foregoing that the proper legal standards were erroneously applied to the facts because the District Court appears to state the rules conversely, it is clear, nonetheless, that each of appellant’s contentions was separately and properly considered and specifically rejected.

The District Court made a quantitative comparison of the private versus the public benefits derived from the organization and operation of the plaintiff corporation. Thereby, it was determined that the “social welfare” and “charitable purpose” requirements of the two respective sections were adequately fulfilled. We cannot disagree.

Affirmed.

      . Internal Revenue Code of 1954 (26 U.S.C.) :
      Sec. 501. Exemption from tax on corporation, certain trusts, etc.
      (c) List of Exempt Organizations.— The following organizations are referred to in subsection (a) :
      (3) Corporations, and any community chest, fund, or foundation, organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or education purposes, or for the prevention of cruelty to children or animals, no part of the net earnings of which inures to the benefit of any private shareholder or individual, no substantial part of the activities of which is carrying on propaganda, or otherwise attempting, to influence legislation, and which does not participate in, or intervene in (including the publishing or distributing of statements), any political campaign on behalf of any candidate for public office.
      (4) Civic leagues or organizations not organized for profit but operated exclusively for the promotion of social welfare, or local associations of employees, the membership of which is limited to the employees of a designated person or persons in a particular municipality, and the net earnings of which are devoted exclusively to charitable, educational, or recreational purposes.


author: IRVING HILL, District Judge:

text:
    Earl W. TAYLOR, Plaintiff-Appellant, v. R. H. MACY & COMPANY, INC., Defendant-Appellee.
    No. 72-2119.
    United States Court of Appeals, Ninth Circuit.
    June 27, 1973.
    Rehearing Denied Aug. 13, 1973.
    Earl W. Taylor, pro. per.
    Don T. Hibner, Jr. (argued), Terence M. Murphy, of Sheppard, Mullin, Richter & Hampton, Los Angeles, Cal., McEnerney & Jacobs, San Francisco, Cal., for defendant-appellee.

       Honorable Irving Hill, United States District Judge for the Central District of California, sitting by designation.

   OPINION

Before MERRILL and HUFSTED-LER, Circuit Judges, and HILL, District Judge.

IRVING HILL, District Judge:

In this action, the Appellant Taylor (Plaintiff below) challenges the method by which Appellee R. H. Macy & Company, Inc. (Defendant below) computes charges on unpaid balances in its customers’ revolving charge accounts. Appellant claims that Appellee is violating the Truth in Lending Act, 15 U.S.C. § 1601 ff., and Regulation Z of the Federal Reserve Board, issued pursuant to the Act, 12 C.F.R. § 226. Appellee’s method of computing finance charges is commonly referred to as the “previous balance” method.

Appellant is not an attorney and appears in pro. per. His contentions are not stated with complete clarity in his brief. He appears to contend first, that the previous balance method is not sanctioned by the Act and the Regulation and, second, if the method is sanctioned Appellee’s disclosures to its customers do not meet the standards of the Act and the Regulation. The trial Court found against Appellant in both respects as do we.

The facts were not in dispute at the time of trial and are not in dispute before us. The sole question presented is one of law. This appears to be a case of first impression.

It is worthwhile to illustrate what the previous balance method is, and how it operates, by stating a hypothetical example. Assume a charge account to have been opened June 1 with purchases of $50 on June 1 and $50 on June 15. Assume no payments were made during June. As of June 30, the balance due would be $100. In the subsequent month, that balance is referred to as the “previous balance”. Assume further that during the month of July, payments of $50 were made and new charges of $100 were incurred. The balance at the end of July would be $150, which is called the “new balance”. Assume that the store’s finance charge is computed at 1 y2% per month (which is the rate actually employed by Macy’s in the instant case). A finance charge of $1.50 would also be imposed on the billing at the end of July. This finance charge is not imposed on the new balance but is imposed on the entire previous balance of $100, despite the fact that a part of that $100 balance, which was due on June 30, was paid during the month of July. Under the previous balance method, the finance charge is imposed on all of the previous balance unless all of it has been paid in the following month. If all of it is paid in the following month, no finance charge is imposed.

The above hypothetical presents the controversy involved in the instant case although the figures of charges and payments are different. Appellant makes much of the fact that the finance charge is imposed on the entire previous balance even though some payments were made in the month following its rendition. He correctly points out that the effective rate of interest is much more than the nominal rate of iy2% per month where, as in the hypothetical, a substantial payment was later made.

Section 107(a)(2) of the Truth in Lending Act, 15 U.S.C. § 1606, provides with respect to open end credit that the annual percentage rate shall be determined :

“as the quotient (expressed as a percentage) of the total finance charge for the period to which it relates divided by the amount upon which the finance charge for that period is based, multiplied by the number of such periods in a year.”

Appellant can point to no legislative history or other authority to support his contention that the previous balance method is not sanctioned under the Act and Regulation Z. To the contrary, it seems abundantly clear that both the Act and the Regulation envisage and approve the previous balance method, as burdensome and expensive as that method is to the customer. See particularly 15 U.S.C. § 1637 and Section 226.5(a)(1) (i) of Regulation Z. Our construction is reinforced by the fact that both the Federal Trade Commission and the Federal Reserve Board have interpreted the statute and regulation as authorizing the previous balance method. See FTC Consumer Policy Statement No. Four of May 7, 1970, CCH Consumer Guide ff 130,369, and Federal Reserve Board letter of January 14,1974, CCH Consumer Credit Guide ff 130,793. Both of those agencies are given important interpretive and enforcement powers under the statutory scheme and their interpretations are entitled to substantial weight. It would thus appear that any action to outlaw the previous balance method under Federal law must come from Congress.

We pass now to the question of whether the disclosures of Appellee meet the requirements of the statute. Section 127, Sections 127(a)(4) and 127(b)(5) of the Truth in Lending Act, 15 U.S.C. § 1637, require that when an account is opened and on each monthly statement, the creditor must disclose as to its finance charges “the corresponding nominal annual percentage rate determined by multiplying the periodic rate by the number of periods in a year.” A similar disclosure requirement is found in Section 226.7(a) (4) and 226.7(b) (6) of Regulation Z. Although the language of the disclosure requirement is cumbersome, it essentially requires a full and fair disclosure of the nominal annual interest rate applied in computing monthly finance charges and the disclosure of the amount to which said nominal rate will be applied. We quote below the disclosures actually made by Appellee in connection with the opening of Appellant’s account and in its monthly statements to Appellant. We agree with the trial Judge that these disclosures fully meet the requirements of both the statute and the Regulation. The nominal rate is correctly disclosed as being 18% (of the first $1,000 of the previous balance) as is the fact that this rate is imposed on the entire previous balance. The dismissal of the complaint after trial by the Court below is affirmed.

      . Regulation Z has been recently held valid by the Supreme Court. Mourning v. Family Publishing Service, Inc., 411 U.S. 356, 93 S.Ct. 1652, 36 L.Ed.2d 318 (1973).

      . The following disclosure was made to Appellant at the time he applied for his charge account:
      “ . . .If full payment of the closing balance (Xew Balance) of a billing period is received by Macy’s before the close of the next billing period, no Finance Charge will be added in the billing period in which payment is received. In each billing period (current period) in which full payment of the Xew Balance of the previous billing period is not received, a Finance Charge may be imposed, computed on the Previous Balance of the current period (Xew Balance of the previous period), without deducting payments and credits or adding purchases made in the current period.
      “The Finance Charge is computed by applying periodic rates of 1%% per month to the $1,000.00 of the Previous Balance and 1% to suc-h balance in excess of $1,000.00, corresponding to Annual Percentage Rates of 18% and 12% respectively ...”
      Printed clearly on the front side of each of the statements sent by Appellee to Appellant was the following:
      “Any FINAXCE CHARGE is determined by applying Periodic Rates of 1 y>% per month to the first $1,000.00 of the Previous Balance and 1% on such balance in excess thereof, corresponding to ANNUAL PERCENTAGE RATES of 18% and 12% respectively.
      To avoid Finance Charge on next statement, full payment of new balance must be received by due date shown.” '
      Above this paragraph in bold capitals, printed in red, appears this instruction:
      “NOTICE — SEE REVERSE SIDE FOR IMPORTANT INFORMATION”
      On the reverse side of the statement is printed the following:
      “If you have not paid the Xew Balance in full, and special payment terms have not been arranged, the required minimum payment is M.oth of the Xew Balance, but not less than $10.00 (or such balance, if less). FINAXCE CHARGE is computed on the Previous Balance, which is the amount owed (New Balance) at the end of the prior billing period, without deducting payments and credits, or adding purchases, shown on this statement. Terms of the account are subject to change (consistent with applicable law) which shall become effective not less than thirty (30) days after giving written notice.”