(a) An establishment engaged in selling ice may qualify as an exempt
retail or service establishment under section 13(a)(2) of the Act if it
meets all the requirements of that exemption. Similarly, an
establishment making the ice it sells may qualify as an exempt
establishment under section 13(a)(4) of the Act if it meets all the
requirements of that exemption.
(b) In determining whether the requirements of the 13(a)(2)
exemption that 75 percent of the establishment's sales must not be made
for resale and must be recognized as retail sales in the industry are
met, sales of ice which meet all the requirements for such
classification as previously explained in this subpart will be regarded
as retail. The following sales have been determined not to qualify under
the applicable tests for recognition as retail:
(1) Sales for resale.
(2) Sales of ice for icing railroad cars and for icing cargo trucks.
However, sales of ice for the re-icing of cargo trucks are recognized as
retail if such sales do not fall into the nonretail categories described
in paragraphs (b) (4) and (5) of this section.
(3) Sales of ice in railroad car lots.
(4) Sales of ice of a ton or more.
(5) Sales of ice at a price comparable to that charged by the
establishment to dealers or, if no sales are made to dealers by the
establishment, at a price comparable to or lower than the prevailing
price to dealers in the area.
(c) The legislative history indicates that iceplants making the ice
they sell are among the establishments which may qualify as retail
establishments under the section 13(a)(4) exemption. It appears that all
iceplants which sell at retail are establishments of the same general
type, permitting no separate classifications with respect to recognition
as retail establishments. Any iceplant which meets the tests of section
13(a)(2) will, therefore, be considered to be recognized as a retail
establishment in the industry. Of course, the establishment must also
meet all the other tests of section 13(a)(4) to qualify for the
exemption.
(d) There are some iceplants which meet the section 13(a)(2)
exemption requirements, but do not meet all of the section 13(a)(4)
requirements. In such establishments, there may be some employees whose
duties relate to both the sales portion of the business and the making
or processing of ice. These employees will not qualify for exemption.
However, in such establishment, there may be some employees who work
primarily for the retail sales portion of the business and also perform
incidental clerical, custodial, or messenger service for the
manufacturing operation. For example, office workers may keep records of
both the manufacturing activities and of the retail sales departments,
maintenance workers may clean up in both parts of the establishment, and
messengers may perform services for both activities. If these employees
spend relatively little time in the work related to the ice
manufacturing portion of the business, they will not, as an enforcement
policy, be regarded as engaged in the making or processing of ice. Such
an auxiliary employee will thus be exempt under section 13(a)(2) in any
workweek in which an insubstantial amount of his time (20 percent or
less) is allocable to the clerical, messenger, or custodial work of the
ice manufacturing operations.
