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F E D E R A L R E G IS T E R , Tuesday, January 10, 1939
years 1936, 1937, and 1938, 2 eighty percent of the average marketings for any two of such years, or 3 seventy per cent of the marketings of any one of such years R. pp. 138, 143, in a man ner similar to the option given to a grower under the old Puerto Rican Pro duction Adjustment Contract R. pp. 138, 139. Witnesses testifying on behalf of Central Roig R. pp. 299, 300, Central Camuy R. pp. 325, 326, and Central San Francisco R. pp. 351, 352, gave their approval to the proposal made on behalf of Central Igualdad.
On the question of ability to market, the witness for Central Igualdad testified that the proposed use of ten consecutive working days to measure refining capac ity was unfair because that company fol lowed the practice of closing down for week ends R. p. 153, and that such proposal unduly favored one of the mills marketing direct-consumption sugar R.
p. 140. The testimony on behalf of Central Aguirre R. p. 169, Central Roig R. p. 273, and Central Camuy R. p.
323, indicated that these companies also followed the practice of discontinuing op erations for the week end, or a similar period. Objection was also made to the proposal of the Sugar Division to give one-half weight to the quantities of sugar certified for entry into the continental United States between January 1 and March 30,1938, in determining ability to market Central Igualdad, R. p. 142; Cen tral Aguirre, R. p. 161; Central Guanica, R. p. 176; Central Roig, brief, pp. 13-16;
Central Camuy, R. p. 324. It was pro posed that fifty percent weight be given to ability to market but that the measure be a ten consecutive working days average, exclusive of the days of liquidation, or a five consecutive working days average Central Igualdad, R. p.
144; Central Roig, R. pp. 299, 300; Cen tral Camuy, R. pp. 325, 326; Central San Francisco, R. pp. 351, 352. The testi mony on behalf of the Porto Rican American Sugar Refinery indicated that that company was in substantial agree ment with the basis of allotment proposed on behalf of the Sugar Division.
Basis of Allotment The applicable standards given in the act for allotting that portion of the quota which may be filled by direct-consump tion sugar are past marketings and ability to market. It is be lieved to be necessary to employ both of these standards in order to make a fair, efficient, and equitable distribution of the direct-consumption portion of the quota as required by the act.
There are two important factors to consider in determining ability.
to market direct-consumption sugar.
These two factors are 1 refining capacity," and 2 current marketings of direct-consumption sugar. Both of 8Porto Rican American Sugar Refinery op erates its mill continuously to fill Its allot ment R. p. 214.

these factors are essential to a deter mination of present ability to market sugar. The refining capacity of proc essors can best be determined by actual performance for a representative period of time, rather than by mere rated mill capacity. It is believed that the best ten consecutive working days should be taken as the basic performance period.
However, in view of the fact that most mills in Puerto Rico follow the practice of discontinuing operations for the week end or a similar period R. pp. 153, 169, 273, 323, it is deemed necessary, in the interest of fairness to all, to use the best five consecutive working days of the basic ten-day period.
This five-day period is deemed to be a representative period for the purpose of measuring mill refining capacity. In regard to the second factor, it is believed that the pe riod from January 1, 1938, to October 24, 1938, affords the best available meas ure of current marketings and should be considered in determining ability to market. This is deemed to be a fair measure in view of the fact that all 1938 allotments had been filled, or substantially filled, on October 24, 1938 R. Ex. 4. Since it is apparent from the record that no processor will receive an allotment equal to the amount of direct-consumption sugar which could be marketed, it is important in determin ing ability to market to give such weight to the factors used as will afford the best relative measure of such ability for all processors. Accordingly, it is believed that the factor of refining capacity, as measured by actual performance for the period stated, has a greater relative im portance in measuring ability
to market than has the factor of cur rent marketings. This results from the fact that current marketings could not exceed the allotment, whereas the pro duction of sugar during the five con secutive working days was not subject to a similar limitation. Therefore, it is be lieved that ability to mar ket should be measured by giving threefourths weight to the highest average output during the best five consecutive days of the above-mentioned basic tenday period and by giving one-fourth weight to current marketings for the period from January 1, 1938, to October 24, 1938, as shown by the quantities of sugar certified for entry into the conti nental United States during that periodIn determining past marketings for processors which have shipped directconsumption sugar to the continental United States, it is believed that the years 1935, 1936, 1937, and 1938 up to October 24, the day prior to the hearing, should be used since they represent the entire period during which a quota sys tem has been in effect and, consequently, are believed to be fair and reasonable un der a restrictive program such as that provided for under the present and prior sugar legislation.
I t is deemed desirable to reserve 5,712
short tons of sugar to be set aside for
99

persons who bring in raw sugar from Puerto Rico for direct-consumption pur poses, which amount represents the aver age quantity of such sugar brought in dur ing the years 1935-1937, inclusive It is not practicable to allot this quantity of sugar to individual processors, inasmuch as it would have to be allotted to thirty-four raw sugar processors, thereby rendering it impossible to make an efficient allot ment as required by the act. An allot ment would require continental pur chasers o f raw sugar for direct consump tion to deal with a large number of sellers in order to obtain their requirements.
Such disruption of customary trade prac tices could not reasonably be said to be an efficient distribution of this kind of sugar as required by the act.
Summary of Evidence as to Capacity and Past Marketings The evidence presented at the hearing in regard to mill refining capacity, as measured by the best five consecutive days of the basic ten-day period, may be summarized as follow s:4
Average daily run in short tons, refined value Porto Rican American Sugar Refinery R. Ex. 13_____________________ ______ 690.65
Central Aguirre R. Ex. 11__________ 110.12
Central G uanica R . Ex. U n nu m
b e re d ______ ._____ ___________________116.52
Central Igualdad R. Ex. 7 ___________ 221. 32
Central Roig R. Ex. 14 a__________ __ 200. 67
Central San Francisco R. Ex. U n
25. 42
numbered ________________ __________
Central Camuy R . Ex. 15___________
75. 64

The quantities of direct-consumption sugar marketed in the continental United States during the years 1935, 1936, 1937, and 1938 up to October 24 R. Ex. 3 and Ex. 4, are as follows:
Puerto Rican direct-consump tion sugar entries refined and turbinado for consumption in the U. S. in terms of short tons, raw value
1935

1936

Porto Rican Ameri can Sugar Refinery. 116,611 109,945
2,719
2,496
264
1,015
Central Igualdad____
163
438
2,778
Central San Fran2,463
2,590

1937

Jan. 1
to Oct.
24,1938

97,498
5,767

93,975
3,443

52
16,204

3,355
5,744
11,843

1,981

1,766

122,971 118,511 121,502 120,126

Findings of Fact On the basis of the record of the hear ing, I hereby find:
1. That, on the basis o f rated refining capacity, Puerto Rican processors of di rect-consumption sugar are equipped to produce approximately 445,168 short tons, refined value, of sugar during the cal endar year 1939.
4No evidence on this point was presented on behalf of Central Carmen.