Cite as 24 A.D. 730 on skim milk shall be "adjusted for the location of the plant" and thus includes the direct delivery differential under § 927.71 (c). (b) The next paragraph (b) (2), states "The amount of payment *** shall be the differences (c) The same wording is included in paragraph (b)(3). Thus, location differentials which include direct delivery differentials, omitted from the language of paragraph (b) (1) which is being construed here, are expressly included in three other parts of paragraph (b). Where the order intended direct delivery differentials to be included in the computation it said so, and where it did not specifically include them they were intended to be excluded. See Brannan v. Stark, 342 U.S. 451, 461, Fn. 12 (1952). (2) The Secretary of Agriculture at least three times has construed the words "value computed in accordance with the classification and pricing" as used in paragraph (b)(1) of §927.83, to mean value in terms of class and class price. (a) § 927.83 was promulgated in 1953, 18 Fed. Reg 8444.8 Before promulgating or amending a marketing order the Secretary must hold hearings on the proposed changes and make findings to support the changes as finally promulgated (Agricultural Adjustment Act, 7 U.S.C. § 608c.) With respect to paragraph (b) (1) of § 927.83 the Secretary made the specific finding that (18 Fed. Reg. 8448): "the price advantage which such milk [milk from out 8 Then designated § 927.78. Cite as 24 A.D. 730 the plant where the milk is received from the farmers." (b) In the notice of hearing on the proposed changes the Secretary stated that the revision of § 927.83 would provide (18 Fed. Reg. 256, 259 (1953)): "Where the milk is classified and paid for under another Paragraph (b) (1) § 927.83 was promulgated as proposed. (c) In 1959 the Secretary promulgated amendments to Connecticut Order No. 119. In his findings on the promulgation he found that the New York Order 27 required that (24 Fed. Reg. 1049, 1057 (1959)): "The New York-New Jersey handler who receives the (3) Section 927.83 was significantly amended effective January 1, 19649 so as to expressly include the direct delivery differential in the computations of the New York value. As then amended, the section read: * each handler shall pay a differential for milk classified as Class I-A or Class II equal to the difference between Class II price under Part 1015 [successor to Order 119] of this chapter and the appropriate class price as adjusted for appropriate differentials including the direct delivery differential set forth in Sec. 1002.71 (c), [formerly § 927.71 (c).]” (Emphasis added.) 9 Section 927.83 was designated § 1002.44 of Order 2, the successor to Order No. 27 (7 C.F.R. § 1002.44). Cite as 24 A.D. 730 This material change in phraseology made by the Secretary specifically to include the direct delivery differential as part of the computation of the payments to be made for Connecticut milk is an additional indication that the section as it read before the amendment did not include the differential. Cf. Hudson Motor Car Co. v. Hertz, 121 F.2d 326, 329 (6 Cir.), cert. den. 314 U.S. 696 (1941); Mabie v. Fuller, 255 N.Y. 194, 201, 174 N.E. 450 (1931). Moreover, it is also an additional indication that where the Secretary intended the differential to be included he said so in plain language and that therefore the differential was not meant to be included in paragraph (b) (1) prior to the amendment. (4) In his 1953 decision approving the promulgation of §927.83, which has already been referred to, the Secretary found that a suitable charge was needed to place New York and Connecticut milk "on substantially similar competitive positions" (18 Fed. Reg. 8448). He found that the formula set forth in § 927.83 met these standards and "closely approximates the theoretically desirable rate which would be sufficient to offset the artificial advantages in favor of nonpool milk *** (Id.) Thus the Secretary concluded that the computation of New York value which he said was to be made in terms of class and class price would result in placing New York and Connecticut milk in "substantially similar competitive positions." He evidently did not consider it necessary to include the direct delivery differential in the computation to accomplish that purpose. The judicial officer reached the contrary conclusion upon the premise that "the general purpose of Section 927.83 is to equalize the cost of nonpool milk disposed of in the marketing area with the cost of pool milk, that is, fully regulated milk” [emphasis added], and that the inclusion of the differential was necessary to accomplish that purpose. (P. 6, Decision and Order.) By so doing he sought to achieve precise equalization10 of costs. 10 It is unnecessary to pass on the question of whether the computation adopted by the judicial officer did in fact achieve precise equalization though that question is not free from doubt. If, as may be the case, the computation resulted in increasing the cost of the Connecticut milk above the cost of similar New York milk Lehigh Valley Co-op Farmers, Inc. v. United States, 370 U.S. 76 (1962) might well become apposite. Cite as 24 A.D. 730 But this was not what the Secretary intended. All that he intended was to place the New York and Connecticut milk in "substantially similar competitive positions." Nowhere did he indicate that precise equalization of cost was the objective of the section. The real difficulty with the judicial officer's conclusion appears to be that he misconceived the purpose of paragraph (b) (1) and then misconstrued its language so as to accomplish that misconceived purpose. It was his view that "the pertinent decision of the Secretary *** is inexact and inconclusive on the narrow issue of order construction presented herein." (P.3, f.n.3, Order upon Reconsideration). The judicial officer substituted his own construction. But the pronouncements of the Secretary on the issue of construction are neither inexact nor inconclusive. They demonstrate that New York value is to be computed in terms of class and class price. The language of paragraph (b) (1) itself is reasonably plain on that subject and, as the Secretary indicated, the language used accomplishes the purpose intended. The construction placed upon paragraph (b) (1) of § 927.83 by the judicial officer is clearly erroneous and not in accordance with law. The direct delivery differential should not have been included in the computation of Fitchett's obligation to the Producer Settlement Fund for the milk which it purchased from Connecticut dairy farmers. Defendant's motion for judgment on the pleadings and on the record before the Department is denied. Plaintiff's crossmotion for such relief is granted. The order and decision and the order upon reconsideration of the judicial officer are vacated and set aside and the matter is remanded to the Secretary of Agriculture for such further proceedings as the law may require and as are consistent with this opinion. Cite as 24 A.D. 746 DAVID LAIKEN v. UNITED STATES DEPARTMENT OF AGRICULTURE et al. Decided May 18, 1965. UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT Before: LUMBARD, Chief Judge, FRIENDLY AND HAYS, Circuit Judges. Petition to review an order of the Secretary of Agriculture suspending petitioner as a floor broker for 10 days for violating a regulation under the Commodity Exchange Act. Petition denied. PER CURIAM: This is a petition, 7 U.S.C. § 19, to review an order of the Secretary of Agriculture, acting through the Department's Judicial Officer, 23 Agri. Dec. 1193 (1964), suspending petitioner as a broker and depriving him of trading privileges for ten days, for violating a section of the Department's regulation, 17 C.F.R. § 1.38, relating to open and competitive bidding and offering. The regulation, issued pursuant to § 8a (5) of the Commodity Exchange Act, 7 U.S.C. § 12a (5), and enforced pursuant to § 6(b), 7 U.S.C. § 9, provides as follows: Execution of transactions. (a) Competitive execution required; exceptions. All purchases and sales of any commodity for future delivery on or subject to the rules of a contract market shall be executed openly and competitively as to price by open outcry or posting of bids and offers or by other equally open and competitive methods, in the trading pit or ring or similar place provided by the contract market, during the regular hours prescribed by the contract market for trading in such commodity: Provided, however, That this requirement shall not apply to such transactions as are executed in accordance with written rules of the contract market which have been submitted to and not disapproved by the Secretary of Agriculture, specifically providing for the noncompetitive execution of such transactions. (b) Noncompetitive trades; exchange of futures, etc.; requirements. Every person handling, executing, clearing, or |