Enforcement of 2 CSR 90-38.030 Stayed or Enjoined

PURPOSE: This rule provides alternate provisions concerning price filings, volume price differentials and cost records which were filed in 1970 and upheld in 1972 by the Missouri Supreme Court, if enforcement of all or part of 2 CSR 90-38.030 is stayed or enjoined by any court in this state. (1) Within fifteen (15) days (July 17, 1970) after the effective date of these rules (July 2, 1970), every processor and distributor shall file with the director of agriculture, on forms furnished by the director, the price of every milk product proposed to offer for sale in Missouri. Any processor or distributor whose prices differ in localities served for the reasons enumerated in section 416.420, RSMo or for any other lawful reason will file a separate price list for each such locality. The prices filed as provided in this rule will be current at all times and any change in prices after the initial filing (up or down) will be filed with the director within forty-eight (48) hours after the effective date thereof. In compliance with this rule, processors will file their dock price and their wholesale price. Distributors shall file their wholesale price. (2) No sale will be made by any processor or distributor below the prices filed with the director as provided by this rule, except as provided otherwise in this rule. Provided further, nothing contained in this rule will prohibit a processor or distributor from making a sale at a price below the prices on file with the director of agriculture if such a sale is made in good faith to meet the equally lower price of a competitor. Any sale made under this provision must be reported to the director of agriculture in writing, by registered mail or telegram, postmarked or dated within twenty-four (24) hours after the sale has been made and the notification of the sale for such purpose to the director of agriculture shall name the competitor offering the lower price, the name and address of the person receiving the lower price, the date or dates, the amount of the lower price and any and all other conditions of the sale relevant to indicate the good faith of the person making the reduction to meet competition. Upon receipt of the report, the director will immediately cause an investigation to be conducted to determine whether good cause exists to justify a lower price to meet competition as alleged in the report. The director will notify the person filing the report that his/her lower price is either approved or disapproved within ten (10) days after receipt of the report. (3) Any sale by any processor or distributor to a customer for an amount less than the prices filed under section (1), except as provided in this rule, or a reduction in good faith still validly in force under the meeting competition provisions of section (2), will be prima facie evidence of an illegal discount and a violation of section 416.420, RSMo and may result in the institution of proceedings as provided in section 416.450, RSMo. (4) The director recognizes that, under certain conditions and circumstances, a processor or distributor may be justified in making a price reduction to a given purchaser which results from a saving to a processor or distributor because of the quantity and type of delivery in which the milk products to that purchaser are sold or delivered. The difference between the price as filed and the price as so reduced as a result of the saving, stated in cents or as a percentage of the filed price shall be known as the volume price differential. In the event any processor or distributor wishes to grant a price reduction and establish a volume price differential to one (1) or more customers, s/he will file the volume price differential with the director (on forms furnished by the director) five (5) days before the effective date of the proposed volume price differential on each price reduction to be granted, including the name and address of the recipient, the date or dates on which it will be granted and all relevant factors indicating the cost-justification. The proposed volume price differential will be examined by the director and approved or disapproved before the effective date and the proponent will be notified accordingly. If the proposed volume price differential is disapproved by the director, the aggrieved processor or distributor may request a hearing at which s/he may submit evidence to the director showing justification for the proposed volume price differential. The hearing shall be conducted in accordance with procedures for contested cases as established by Chapter 536, RSMo. (5) Each processor and each distributor shall keep current records to show the cost of doing business. On the written request of the director, the product cost shall be computed for any designated period in accordance with accepted cost accounting methods. AUTHORITY: section 416.460, RSMo Supp. 1993.* This rule was previously filed as 2 CSR 40-3.050. Original rule filed June 22, 1970, effective July 2, 1970. Amended: Filed July 10, 1984, effective Oct. 11, 1984. *Original authority 1959, amended 1993. 8