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592

FEDERAL REGISTER,
All coal confiscated or lost in transit shall be invoiced to the carrier at not less than the minimum price established for such coal for shipment to the destina tion and use to which the coal was sold or the established price for sale to the carrier at the place of confiscation or loss, whichever may be the higher.
On cross-examination, the witness for District Board No. 12 was asked his opinion of the following definition of a retail dealer :
A retail dealer should mean a per son regularly engaged in the retail solid fuel industry who maintains or has available properly equipped unloading, storage and service facilities reasonably commensurate with the nature bf the business; equipped with and using wagon or truck scale of sufficient sizes and ca pacity and maintained in condition to accurately weigh the maximum gross load for which it is utilized unless local ordinance requires otherwise; main taining an office accessible to the public with a competent person on duty; and who maintains or has available a suffi cient stock of solid fuel at all times for the purpose of retailing and not for his own consumption to supply the general requirements of the community.
There is no testimony in the record as to the purpose of this definition. As previously stated, the witness was o f the opinion that the rules contained in Ex hibit No. 825 represented desirable and reasonable modifications of the rules proposed by District Board No. 12 except as to such rules relating to terms of pay ment which were in conflict with the rules proposed by District Board No. 12.
The term retail dealer does not appear in the rules contained in Exhibit No. 825.
However, the term does appear in rule 6
of Section X I of the rules proposed by District Board No. 12. Rule 6 of Section X I of Exhibit No. 828 relates to sub stitution. The witness for the Market ing Division stated that Exhibit No. 825
is not to be construed as representing the deletion of any rule relating to sub stitution as it may have been proposed by the District Boards. Rule 6 of Sec tion X I of Exhibit No. 828 provides that no permit for substitution shall be issued in connection with the shipment of coal sold to a retail dealer. A retail dealer is defined in paragraph 7 a of Section I of the rules proposed by District Board No. 12 as follows:
A retail dealer is a person properly equipped with storage yard, office scales, etc., who purchases coal for resale and resells it to consumers in less than rail road carload lots.
W e can see no reasonable purpose in differentiating between persons who pur chase coal for resale and who come within the definition of a retail dealer proposed by District Board No. 12 or the definition proposed to the witness for Dis trict Board No. 12 on cross-examination and persons, not distributors, who pur
Wednesday, February 8, 1939

chase coal for resale and who do not come within the terms of these definitions.
The witness for District Board No. 12
stated on cross-examination that there are persons in District No. 12 who pur chase coal in railroad cars and trucks and resell such coal from such cars and trucks. Under the proposed definitions of a retail dealer and the rule proposed by District Board No. 12 relating to sub stitution, a substitution permit may be issued in connection with the sale of coal to one who resells such coal out of a rail road car or truck and who is not prop erly equipped with storage yards and o f fice scales but not in connection with the sale of coal to one who purchases for re sale and who maintains proper storage facilities and otherwise comes within the proposed definitions. This discrimina tion, in our opinion, is unreasonable and not warranted by the evidence.
The term retailer appears in para graphs 11 and 12 of Section 4, Part n i of the Act containing the Unfair Methods of Competition which should be promulgated as part of the Marketing Rules and Regulations. W e are of the opinion that the term retailer, appear ing in paragraphs 11 and 12 of Section 4 n i of the Act means a person who purchases coal for resale and sells such coal in lots or upon conditions other than those which would entitle him to a dis count under rules and regulations pro mulgated by the Coal Commission pur suant to Section 4 n h of the Act.
This definition of a retailer is, in our opinion, more reasonable than the defi nition of a retail dealer proposed by District Board No. 12 or the definition of a retail dealer proposed to the witness for District Board No. 12 on cross-ex amination. Accordingly, we approve the following definition of a retailer :
A retailer is a person who buys coal for resale and sells such coal in lots or upon conditions other than those which would entitle him to a discount under rules and regulations promulgated by the Coal Commission pursuant to Section 4 n h of the Act.
Rule 6 of Section X I of the rules pro posed by District Board No. 12 provides for the issuance by the District Board of substitution permits and also provides that the District Board shall publish to Code Members at least once a week a list of substitution permits issued by the District Board during the preceding week. We are of the opinion that proper enforcement of the minimum prices re quires that substitutions may only be made upon permission by the Statistical Bureau of the Coal Commission. Ac cordingly, we modify rule 6 of Section X I of Exhibit No. 828 to read as follows:
Substitution. a No substitution of grades or sizes of coal carrying a higher Code price may be made on spot orders or contracts, unless authorized by the Statistical Bureau o f the Coal Commis
sion. Requests for permission to mafe substitutions shall be submitted to the Statistical Bureau in writing and shil be approved only upon satisfactory evi dence that such substitution is necessary as a temporary and emergency measure and will not result in unfair advantage to either the Code Member or the Buyer.
Upon approval of a request for substi tution, the Statistical Bureau will issue a permit to the Code Member in each instance which permit shall be limited to a maximum number of tons for ship ment during a period not to exceed thirty 30 days. No permit for substi tution shall be issued in connection with the shipment of coal sold to a retailer.
The issuance of such permits will be restricted for application to spot orders or contracts filed with the Statistical Bureau. All permits issued hereunder shall be consecutively numbered.
b Each Statistical Bureau shall pub lish to the District Board and to the Code Members within its District, at least once in each week, a list of the per mits for substitution issued by the Sta tistical Bureau during the preceding week. Such publication shall show the name of the Code Member to whom the permit is issued, the permit number, the tonnage and grade or sizes involved in the substitution, the reason therefor, whether for application upon spot order or contract, and the period of time for which the permit is granted.
Upon the basis of the testimony of the witness for District Board No. 12
that the rules contained in Exhibit No.
825 are desirable and reasonable, we find that the rules proposed by District Board No. 12 in Exhibit No. 828 should be modified to conform to the rules con tained in Exhibit No. 825 except as we have already stated otherwise.
Accordingly, we find that the follow ing rules and regulations incidental to the sale and distribution of coal by Code Members in District No. 12 are reason able, not inconsistent with the require ments of Section 4 of the Act and con form to the standards of fair competition established in the Act:
M A R K E T IN G

R U LES AND REGULATIONS INC I

D ENTAL TO T H E SALE AND DISTRIBUTION OF
COAL B Y CODE M EM BERS W I T H I N DISTRICT
NO.

12 AS PROPOSED B Y

DISTRICT BOARD

N O . 12 AND AS APPROVED, DISAPPROVED, OR
M O D IF IED FOR T H E PURPOSE OF COORDI
N A T IO N

Section 1 Definitions 1. The term person as used herein, includes individuals, firms, a sso cia tio n s, partnerships, corporations, trusts, trus tees, cooperatives, receivers and trustees in bankruptcy and in other legal proceed ings, and any other recognized forms of business organizations.
2. A sales agent is a person who, as agent of a code member and therefore without purchasing the coal, sells coal produced by such code member for him or on his behalf: Provided, That sales