text:
    Raymond L. REESE, Appellant, v. UNITED STATES BOARD OF PAROLE et al.
    No. 74-1465.
    United States Court of Appeals, District of Columbia Circuit.
    May 10, 1974.
    Before BASTIAN, Senior Circuit Judge, and MacKINNON, Circuit Judge.
   PER CURIAM:

This matter involves the proper jurisdiction for a habeas corpus proceeding. We remand the case to the District Court with instructions to transfer same to the District of Arizona where the petitioner is incarcerated.

Raymond Reese was convicted in the United States District Court for the District of Utah in 1964 and sentenced to serve two 5-year consecutive terms. In September 1972 he was released on parole, pursuant to 18 U.S.C. § 4164 with 966 days remaining on his sentence. In April 1973, he was convicted of first degree burglary by an Arizona court and sentenced to a ten to twelve year term in the Arizona State Prison, which sentence he is now serving.

The United States Board of Parole promptly issued a parole violator warrant commitment for Reese, and forwarded it to the United States Marshal in Arizona. On May 4, 1973 the Marshal filed a detainer with the Arizona State Prison at Florence, Arizona, where Reese is serving his 10-12 year sentence. Cf. Combs v. Carroll, 446 F.2d 893 (5th Cir. 1971). On May 19, 1973 Reese inquired of the probation officer in Phoenix, Arizona, as to the date of his “revocation hearing” and was informed by the U. S. Board of Parole by letter of June 1, 1973 “that the Board plans to review the status of your outstanding warrant in April, 1974.” Whether this contemplated a “revocation hearing” does not appear. Reese thereupon on June 20, 1973 filed a habeas corpus petition under 28 U.S.C. §§ 2241 and 2254 against the United States Board of Parole in the United States District Court for the District of Columbia. His petition alleged, without more, “that he is being denied his constitutional rights.” His supporting memorandum, however, contended the Board intended to delay his revocation hearing until June 16, 1978, when he expected that his state sentence would, with good time, terminate. The District Court, without a hearing and without a formal opinion, dismissed the petition and denied petitioner’s motion for leave to appeal without prepayment of costs as “frivolous and not taken in good faith.”

We next denied petitioner’s appeal for leave to proceed in forma pauperis in this co.urt on the stated ground that the petition for writ of habeas corpus was “required to be brought in the District of petitioner’s incarceration.” Appellant then applied to the United States Supreme Court for a writ of certiorari. In response to this petition the Solicitor General filed a Memorandum stating, inter alia:

The decision of the court below, denying for lack of jurisdiction petitioner’s motion to appeal in forma pauper-is, is at odds with the recent decision of this Court in Braden v. 30th Judicial Circuit of Kentucky, 410 U.S. 484, [93 S.Ct. 1123, 35 L.Ed.2d 443] which held that jurisdiction under 28 U.S.C. 2241 lies with the district of confinement and the district where the custodian of the confinement is present.
Here, since the warrant-detainer was issued by the United States Board of Parole in Washington, D. C. and since, in the case of a detainer, the custodian is the party who issued the detainer, we believe that the court below was not without jurisdiction to consider petitioner’s motion to appeal in forma pauperis.
We therefore respectfully submit that the petition for a writ of certiorari should be granted and the case remanded to the court of appeals.

The Supreme Court granted the petitioner’s motion to proceed in forma pauperis and the petition for writ of certiorari. Then, acting on the petition and the Government’s response thereto, it vacated the judgment of the Court of Appeals and remanded the cause to this court “for further consideration in light of the position presently asserted by the Government.”

The position of the Government as asserted in its response, the material portion of which is quoted above, is that jurisdiction under 28 U.S.C. § 2241 lies within the district of confinement (Arizona) and the district where the custodian of the confinement is present. The United States courts in this circuit thus have jurisdiction to consider the merits of appellant’s petition and, in an appropriate case, to order the transfer of the petition to the court for the district where the petitioner is incarcerated. Young v. Director, U. S. Bureau of Prisons, 125 U.S.App.D.C. 105, 367 F.2d 331 (1966). Since no compelling reason for considering the petition in the District of Columbia is evident, the judgment of the District Court is vacated and the cause is remanded to the United States District Court for the District of Columbia with instructions to transfer the petition to the United States District Court for the District of Arizona.

So ordered.

      . 18 U.S.C. § 4164 provides :
      § 4164. Released prisoner as parolee
      A prisoner having served his term or terms less good time deductions shall, upon release, be deemed as if released on parole until the expiration of the maximum term or terms for which he was sentenced less one hundred and eighty days.
      This section shall not prevent delivery of a prisoner to the authorities of any State otherwise entitled to his custody.
      June 25, 1948, c. 645, 62 Stat. 853; June 29, 1951, e. 176, 65 Stat. 98.

      . 18 U.S.C. § 4205 provides:
      § 4205. Retaking parole violator under warrant; time to serve undiminished
      A warrant for the retaking of any United States prisoner who has violated his parole, may be issued only by the Board of Parole or a member thereof and within the maximum term or terms for which he was sentenced. The unexpired term of imprisonment of any such prisoner shall begin to run from the date he is returned to the custody of the Attorney General under said warrant, and the time the prisoner was on parole shall not diminish the time he was sentenced to serve.
      June 25, 1948, c. 645, 62 Stat. 854.
      18 U.S.O. § 4207 provides:
      § 4207. Revocation upon retaking parolee
      A prisoner retaken upon a warrant issued by the Board of Parole, shall be given an opportunity to appear before, the Board, a member thereof, or an examiner designated by the Board.
      The Board may then, or at any time in its discretion, revoke the order of parole and terminate such parole or modify the terms and conditions thereof.
      If such order of parole shall be revoked and the parole so terminated, the said prisoner may be required to serve all or any part of the remainder of the term for which he was sentenced.
      June 25, 1948, c. 645, 62 Stat. 855.

      . DETAINER
      United States Marshal
      8202 Federal Building
      Phoenix, Arizona 85025
      Date: May 4, 1973 TO: ARIZONA STATE PRISON
      Re: REESE, RAYMOND L. FLORENCE, ARIZONA USM — 6836-P,
      We have a warrant/commitment for the above-named defendant who is reported to be in your custody.
      Please place a detainer against this person for us, and advise this office of the release date in order that a deputy United States Marshal may be present to take him in custody on our writ.
      If this subject is transferred from your custody before release to us is possible, please let us know the place of confinement and send this detainer on with your papers in the case.
      Please acknowledge receipt of this detain-er on the carbon copy attached and return same to me in the enclosed self-addressed envelope.
      Thank you very much for your cooperation.
      Very truly yours,
      /s/ R. R. Jones
      J. PAT MADRID
      United States Marshal

      . May 18, 1973
      Mr. Robert Thomas
      United States Probation Officer
      Federal Building
      Phoenix, Arizona 85025
      Dear Mr. Thomas:
      Now that a detainer — based upon a warrant that I assume was issued by the U. S. Board of Paroles — has been lodged against me for an alleged infraction of my Mandatory Release pursuant to 18 U.S.C. Section 4161, I would like to know when your department intends to grant me a revocation hearing on the subject.
      Sincerely,
      Raymond L. Reese
      Box B. 31955
      Florence, Arizona
      85232

      . United States Department of Justice
      United States Board of Parole
      Washington, D. C. 20537
      June 1, 1973
      EXHIBIT 2 a
      [Filed July 17, 1973, James F. Davey, .Clerk]
      Mr. Raymond L. Reese
      Reg. No. 31473-136
      State Prison
      Box B 31955
      Florence, Arizona 85232
      Dear Mr. Reese:
      Reference is made to your letter of May 18, 1973, to U. S. Probation Officer Thomas. In response to your inquiry, be advised that the Board plans to review the status of your outstanding warrant in April, 1974. By copy, institutional authorities are requested to submit a current progress report, noting Subject’s adjustment and state parole status, in March, 1974, in order to facilitate said review.
      We hope this information clarifies your Federal status.
      Sincerely yours,
      STEVE D. JOHNSTON
      Parole Executive
      By: /s/ Stanley B. Kruger
      STANLEY B. KRUGER
      Case Analyst
      SBK :gwf
      cc: Warden
      State Prison
      Florence, Arizona 85232
      USPO R. L. Thomas
      Room 6443, U. S. Court House
      Phoenix, Arizona 85025

      . Cf. note 5.

      . Order of September 25, 1973, No. 73-8143, U. S. Court of Appeals for the District of Columbia Circuit.

      . No. 73-5717, March 18, 1974, 415 U.S. 971, 94 S.Ct. 1554, 39 L.Ed.2d 867. Mandate certified April 16, 1974.

      . Under the rule laid down in Young v. Director, U.S. Bureau of Prisons, [125 U.S.App.D.C. 105] 367 F.2d 331 (C.A. D.C.), it would, however, be appropriate for the court below to transfer the petition to the court for the district in which petitioner is incarcerated, since no compelling reason for considering the petition in the District of Columbia is evident. See 28 U.S.C. 1391(e). Petitioner agrees that this would be appropriate. (Pet. 5).

      . 28 U.S.C. § 2241 provides :
      * * Sfc * Si!
      (b) The Supreme Court, any justice thereof, and any circuit judge may decline to entertain an application for a writ of habeas corpus and may transfer the application for hearing and determination to the district court having jurisdiction to entertain it.
      s{: $ $ «i«
      (d) Where an application for a writ of habeas corpus is made by a person in custody under the judgment and sentence of a State court of a State which contains two or more Federal judicial districts, the application may be filed in the district court for the district wherein such person is in custody or in the district court for the district within which the State court was held which convicted and sentenced him and each of such district courts shall have concurrent jurisdiction to entertain the application. The district court for the district wherein such an application is filed in the exercise of its discretion and in furtherance of justice may transfer the application to the other district court for hearing and determination.
      June 25, 1948, c. 646, 62 Stat. 964; May 24, 1949, c. 139, § 112, 63 Stat. 105; Sept. 19, 1966, Pub.L. 89-590, 80 Stat. 811.
      28 U.S.C. § 1404 provides:
      § 1404. Change of venue
      (a) For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.
      (b) Upon motion, consent or stipulation of all parties, any action, suit or proceeding of a civil nature or any motion or hearing thereof, may be transferred, in the discretion of the court, from the division in which pending to any other division in the same district. Transfer of proceedings in rem brought by or on behalf of the United States may be transferred under this section without the consent of the United States where all other parties request transfer.

      . Note 9 supra. Petitioner has also agreed that the transfer is appropriate. See text, page 700, footnote 1 in quotation from Response.


source: Caselaw Access Project

license: Public Domain

text:
    Cordelia KELSEY, infant, by her parent, Louise Kelsey, et al., Appellants, v. Caspar W. WEINBERGER, Individually and as Secretary of Health, Education and Welfare, et al.
    No. 73-1960.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Nov. 6, 1973.
    Decided May 14, 1974.

      Joseph L. Rauh, Jr., Washington, D. C., with whom John Silard, Elliott U Lichtman, Washington, D. C., Daniel H. Pollitt, Chapel Hill, N. C. and James M. Nabrit, III, New York City, were on the briefs, for appellants.
    Michael H. Stein, Atty., Dept, of Justice, with whom Irving Jaffe, Deputy Asst. Atty. Gen., Harold H. Titus, Jr., U. S. Atty., at the time the brief was filed, and Kathryn H. Baldwin, Atty., Dept, of Justice, were on the brief for appellee. Robert M. Werdig, Jr., and Garey G. Stark, Asst. U. S. Attys., also entered appearances for appellee.
    Before TAMM, ROBINSON and WILKEY, Circuit Judges.
   SPOTTSWOOD W. ROBINSON, III, Circuit Judge: '

Cordelia Kelsey and other public school children, the appellants, complained in the District Court that the Secretary of Health, Education and Welfare, the principal appellee, violated the Emergency School Aid Act in promulgating a new regulation enabling proposed waivers of the ineligibility, under prior regulations, of five public school districts without first requiring the elimination of the effects of racially motivated teacher assignments theretofore made in those districts. The Secretary asserts that the Act permits him to grant the waivers because the districts have ceased discriminatory assignments and have adopted plans to remove the effects of past discrimination by the beginning of the 1975-76 school year. On cross-motions for summary judgment, the District Court ruled in appellees’ favor and dismissed appellants’ action. We reverse and remand the ease to the District Court with directions to enter an appropriate judgment in appellants’ favor.

I

The salient facts of the ease are not materially in dispute. On June 23, 1972, Congress passed the Emergency School Aid Act as Title VII of the Education Amendments of 1972. One purpose of the Act, Congress declared, is the provision of financial assistance to local educational agencies “to meet the special needs incident to the elimination of minority group segregation and discrimination among students and faculty in elementary and secondary schools. . ” The Act accordingly makes funds available for a variety of enumerated activities related to its stated objectives. The Act also sets forth standards for determining eligibility for assistance and criteria for evaluating applications therefor; and it specifically requires a finding of ineligibility as to any school district which after June 23, 1972, indulged in one or more prohibited practices, including the following :

No educational agency shall be eligible for assistance under [the Act] if it has, after June 23, 1972— . engaged in discrimination based upon race, color, or national origin in the hiring, promotion, or assignment of employees of the agency. . . .

The Act contains, however, a proviso enabling an ineligible agency to apply to the Secretary for a waiver of ineligibility. But the granting of a waiver is statutorily conditioned upon a

determination that any practice, policy, procedure or other activity resulting in ineligibility has ceased to exist, and that the applicant has given satisfactory assurance that the activities prohibited in [the subsection defining ineligibility] will not reoccur.

The Act similarly instructs the Secretary to promulgate waiver regulations which “insure that any practice, policy, or procedure, or other activity resulting in the ineligibility has ceased to exist or occur. . . . ”

On February 6, 1973, the Secretary first issued regulations implementing the provisions of the Act. In their original text, the regulations clearly blocked access to the Act’s assistance by any public school system pursuing, after June 23, 1972, a practice leading to racial discrimination in the deployment of teachers in its schools. The regulations flatly stated that

No educational agency shall be eligible for assistance under the Act if, after June 23, 1972, it has had or maintained in effect any . . . practice, policy or procedure which results in discrimination on the basis of race, color, or national origin ... in the assignment of any of its employees . . . including full time classroom teachers to the schools of such agency in such a manner as to identify any such schools as intended for students of a particular race or national origin.

The regulations also insisted that oWhere ineligibility followed-a discriminatory assignment of teachers, an “application for waiver shall contain evidence that such agency has assigned its full-time classroom teachers to its schools so that no school is identified as intended for students of a particular race, color or national origin.” A further limitation imposed by the regulations was that agencies not implementing a judicial or administrative order relating to faculty assignment reassign teachers “so that the proportion of minority group full-time classroom teachers at each school is between 75 per centum and 125 percentum of the proportion of such minority group teachers which exists on the faculty as a whole, and so that the variations in such proportions which remain on various faculties do not correspond to such variations in the student populations of such schools.” As appellees admit, under the original regulations “a school which had in the past made discriminatory assignments was required not only to stop such assignments, but to correct the effect of past discriminatory assignments by reassigning, prior to approval of the waiver, all of its teachers in such a way that the racial identifiability of schools resulting from assignments of the preceding years would be completely corrected.”

While the original regulations were in vogue, a host of school districts qualified for financial aid under the Act. The Secretary found a small number ineligible to receive funds for fiscal year 1973 because of the racial identifiability of faculties in their schools — a reflection of racially inspired assignments of teachers.

On June 29, 1973, the Secretary issued a press release announcing his intention to reexamine the regulations with a view toward softening the restrictive elements of the waiver provision in order to allow for more “realistic” funding of programs in previously ineligible communities. On July 16, the Secretary issued a notice of proposed rulemaking envisoning modification of the rule pertaining to waivers of ineligibility consequent upon discrimination in faculty assignments. The crux of the proposed revision was a new regulation permitting approval of an application for a waiver in favor of a previously ineligible school district even though the effects of such discrimination had not been fully rectified. The new regulation would demand a showing that the educational agency had adopted a policy of racially nondiscriminatory faculty assignments and would make all future assignments in such manner that racial identifiability of faculties would not increase. The regulation would, however, allow the agency to continue one-race faculties for one year and racially identifiable faculties for two years. The regulation would also eliminate the administrative definition of a racially identifiable faculty without provision of any substitute. Despite vigorous opposition by civil rights groups, the new regulation was promulgated without change on August 9, 1973, clearing the way for five cities to seek waivers of their prior ineligible status soon after the effective date of August 16, 1973.

The five cities promptly filed applications for waiver. The submissions reveal that none of the cities offers to undertake any involuntary redistribution of teachers presently assigned on a racial basis. Rather, they propose to rely on the gradual though inevitable process of teacher attrition to create vacancies, and upon nondiscriminatory appointment and assignment of new teachers as a means of reducing prohibited racial concentrations within the two-year time frame of the regulation. In short, instead of altering faculty setups' ensuing from racially induced faculty assignments in the past, the cities will continue those assignments in effect, subject to change only by the filling of vacancies on a nonracial basis.

On August 16, 1973, the effective date of the revised waiver regulation, the Secretary, as required by the Act, transmitted to statutorily designated congressional committees notices of intent to grant waivers of ineligibility to the five cities. This litigation challenges the validity of the new regulation in relation to the waivers contemplated. Appellants, minority group children attending public schools in three of the five affected cities, sought in the District Court a declaration that the current regulation is invalid and an injunction restraining the grant of the waivers. Hearing the case on cross-motions for summary judgment, the court entered judgment upholding appellees on the merits and dismissing appellants’ action, and this appeal followed.

II

The Emergency School Aid Act is explicit in its stipulation that “[n]o educational agency shall be eligible for assistance” under its provisions if after June 25, 1972, the date of its enactment, the agency has “engaged in discrimination based upon race, color, or national origin in the . . . assignment of [its] employees. . . . ” Thus the Act prohibits financial aid to any educational agency which continued to utilize a racial factor in the deployment of teachers in the schools under its jurisdiction. The record leaves no alternative to the conclusion on this appeal that each of the applicant agencies was ineligible for statutory benefits because of racially discriminatory assignments of faculty personnel in its school system after the Act went into effect.

To be sure, the Act authorizes the Secretary to waive an agency’s ineligibility, but only upon a “determination that any practice, policy, procedure, or other activity resulting in ineligibility has ceased to exist, [or occur] and that the applicant has given satisfactory assurance that the activities prohibited will not reoccur.” It goes without saying that the Secretary is powerless to waive ineligibility on terms other than those which the Act undertakes to confer. One of the statutory standards by which the validity of administrative waivers of ineligibility must be measured thus emerges from Congress’ use of the phrase “has ceased to exist” in its grant of waiver authority to the Secretary.

So it is that we are brought to the central question in this case: whether the Act permits the Secretary to waive the ineligibility of an educational agency flowing from a practice of racially inspired teacher assignments where the agency has discontinued the practice for the future but has not yet rectified discriminatory assignments made in the past. Appellants contend that the Act conditions waivers of ineligibility upon elimination of the effects of past discrimination, as well as upon nondiscrimination in the present and the future, because otherwise the forbidden “practice . . . resulting in ineligibility” has not “ceased to exist.” Appellees argue, on the other hand, that once the practice has been halted it has “ceased to exist,” and that the effects of previous discrimination may then be gradually erased over a reasonable period of time, as allowed by the Secretary’s current waiver regulation.

The District Court was of the opinion, and we agree, that the language of the Act conferring the waiver authority is susceptible to either construction. And like the District Court, we are unable to find any source extrinsic to the Act from which we might derive a significant clue as to the meaning properly to be ascribed to the waiver provision. The parties have cited no case interpreting that provision, nor have we found any, and our examination of its legislative history has uncovered nothing really helpful. But the interpretation which appellees urge treads dangerously close to constitutional condemnation of a part of the Act and, unlike the District Court, we feel obliged to resort to relevant canons of statutory construction for the solution of the perplexing problem confronting us.

It is firmly settled that, whenever possible, statutes are to be construed in a manner that not only upholds their constitutionality but also steers clear of uncertainty on that score. The Supreme Court has admonished that a statute “must be construed with an eye to possible constitutional limitations so as to avoid doubts as to its validity,” and has “favored that interpretation of legislation which gives it the greater chance of surviving the test of constitutionality.” So, “when one interpretation of a statute would create a substantial doubt as to the statute’s constitutional validity, the courts will avoid that interpretation absent a ‘clear statement’ of a contrary legislative intent.”

Appellees’ reading of the Act’s waiver provision as a license to fund school districts in which the evils of discriminatory teacher assignments remain uneradicated generates concern of constitutional proportions. As the District Court put it mildly, appellants’ constitutional arguments precipitated by appellees’ construction are “undoubtedly of great force.” We think that construction unwarrantedly exposes the Act to a severe risk of “danger of unconstitutionality,” and for that reason must be shunned.

Ill

In its Brown 1 and Bolling decisions in 1954, the Supreme Court held that racial segregation governmentally required or authorized in public education is at war with the Federal Constitution. In Brown II decided the following year, the Court gave unmistakable notice that every educational agency operating racially separate public schools must “effectuate a transition to a racially nondiscriminatory school system.” Indubitably, “[t]he transition to a unitary, nonracial system of public education was and is the ultimate end to be brought about.”

Public school authorities operating segregated facilities thus were “clearly charged with the affirmative duty to take whatever steps might be necessary to convert to a unitary system in which racial discrimination would be eliminated root and branch.” And “[t]he objective today remains to eliminate from the public schools all vestiges of state-imposed segregation.” It cannot be doubted that both the duty and the objective embrace faculty setups resulting from assignments based on considerations of color; Brown II so indicated, and subsequent decisions have made that the plainer. Duality of schools may appear “simply by reference to the racial composition of teachers and staff,” and “[w]hen a system has been dual in [this] respect [,] the first remedial responsibility of school authorities is to eliminate invidious racial distinctions.”

Nor can it be doubted that when, in 1973, the Secretary fashioned his revised waiver regulation, time for any reconstitution of faculty demanded by the Brown I-Bolling holding had long since expired. In Brown II in 1955, the Court directed that the steps necessary to implement that holding be taken “with all deliberate speed.” While Brown II “contemplated the possible need of some limited delay in effecting total desegregation of public schools,” it “never contemplated that the concept of ‘deliberate speed’ would countenance indefinite delay in elimination of racial barriers in schools. . . .” So in 1964 the Court emphasized that “[t]he time for mere ‘deliberate speed’ has run out,” and in 1965 that “[d]elays in desegregating school systems are no longer tolerable.” And in 1969, almost four years before the Secretary’s revised regulation was promulgated, the Court declared that “the obligation of every school district is to terminate dual school systems at once and to operate now and hereafter only unitary schools.” Yet as we approach the twentieth anniversary of Brown I and Bolling, the Secretary’s new regulation would indulge noncomplying school districts even more time for faculty desegregation.

Additionally, and very plainly, the Secretary’s revised regulation opens the door to federal financial contributions in situations wherein local educational agencies have defaulted in the discharge of their faculty desegregation responsibilities. It cannot be gainsaid that “[a] State’s constitutional obligation requires it to steer clear, not only of operating the old dual system of racially segregated schools, but also of giving significant aid to institutions that practice racial or other invidious discrimination.” Nor can it be disputed that “[s]tate support of segregated schools through any arrangement, management, funds, or property cannot be squared with the [Fourteenth] Amendment’s command that no State shall deny to any person within its jurisdiction the equal protection of the laws.” Certainly the Fifth Amendment does not tolerate the Federal Government in an involvement with racially segregated education which the Fourteenth prohibits to the states. On the contrary, this court en banc has already recognized and enforced the Secretary’s “general obligation not to allow federal funds to be supportive of illegal discrimination.”

We point to this array of constitutional principles, not as a predicate for actually passing on the validity of the Act’s waiver section, but as an identification of grave difficulties which inexorably it would encounter if given the interpretation for which the Secretary contends. And it is clear enough that unless the Act is to be exposed to the perils which these principles make evident, the Secretary’s revised waiver regulation cannot stand. While the regulation in original form called for hard evidence of completely desegregated faculties as a precondition to funding under the Act, the new regulation envisions funding although illegal faculty segregation may continue. Moreover, the new regulation could be met notwithstanding postponement of the date of completion for as long as two years — and, concomitantly, perpetuation of the impact of racially identifiable schools over that period. Furthermore, since neither the new regulation nor the agencies’ applications in this ease propose affirmative action in the form of involuntary teacher transfers, school systems conceivably could maintain a segregated faculty status through the 1974-75 academic year and still, by prompt faculty desegregation, qualify for uninterrupted assistance under the Act. By placing a two-year limit on faculty segregation, the Secretary acknowledges his obligation to require faculty desegregation, but he fails to recognize that the time for performance of desegregation responsibilities is now.

In the District Court, appellants attacked the validity of the revised waiver regulation on grounds not only that it was inconsistent with the statutory provision on waiver but also that it could not pass muster under the Fifth Amendment. The District Court felt that the constitutional argument was “undoubtedly of great force,” but nonetheless construed the Act as a source of administrative authority to fund projects in school districts wherein faculty desegregation is a promised but unrealized goal. The court reasoned that since “the clear intent of the statute is that federal funds be available to meet the needs incident to the process of desegregation [,] [t]hat language implies that funds will be expended to carry out an ongoing implementation of a desegregation program.” The court concluded that “[t]o require that the result as well as the practice be eliminated before a waiver could be granted would be anomalous indeed in the face of the congressional finding that local school districts lack the funds to implement plans of desegregation.”

We find ourselves in disagreement with the District Court on both counts. While surely the pervading purpose of the Act is to financially assist a worthy desegregation plan, the Act makes monies available, not for the basic desegregation activities themselves, but for auxiliary programs designed to enhance the success of the desegregation effort and to ameliorate the inroads of past educational segregation. We find no provision in the Act licensing expenditures simply for the purpose of reassigning teachers; indeed, on oral argument appellees’ counsel conceded that teacher-reassignment is an administrative task devoid of any incidental financial output. Judges before us have perceived no impediment to immediate faculty desegregation, and nothing coming to our attention reflects congressional concern in that regard. Even should one surmise that Congress intended to contribute from the public fisc to school districts still indulging segregated faculties, at least a substantial doubt as to whether it could validly do so remains.

IV

We conclude that racially identifiable public school faculties as well as policies and practices of racially discriminatory teacher assignments must have “ceased to exist” prior to any administrative waiver of ineligibility for benefits under the Act. We are persuaded to that construction of the Act’s authorizing provision for three major reasons. First, that interpretation of the language of a statute designed to assist desegregation appeals to us as logically sounder than an alternative which would foster continuance of the debilitating effects of past segregatory policy. Second, the Supreme Court’s constitutional decisions virtually mandate adherence to a construction which insists upon immediate removal of the effects of educational discrimination based on race, particularly where federal funding is involved. And, third, we avoid the doubts which inevitably accompany an undue strain on the fiber of constitutional precedent by an interpretation calling both for present and future cessation of segregatory practices and prior elimination of the results of such practices before a waiver of ineligibility for federal aid is forthcoming.

The Secretary’s revised waiver regulation does not harmonize with this construction of the governing statutory provision. It follows that neither the regulation, the proposed waivers nor the District Court’s approving decision can be sustained. The judgment of the District Court is accordingly reversed, and the case is remanded with instruction to award appellants the declaratory and injunctive relief sought by their complaint.

So ordered.

      . The other appellee is the Assistant Secretary of Health, Education and Welfare for Education.

      . Pub.L.No.92-318, tit. VII, §§ 701-720, 86 Stat. 354 (1972), 20 U.S.C. §§ 1601-1619 (Supp. II 1972).

      . Kelsey v. Weinberger, 363 F.Supp. 521 (D.D.C.1973).

      . Pub.L.No.92-318, tit. VII, §§ 701-720, 86 Stat. 354 (1972), 20 U.S.C. §§ 1601-1619 (Supp. II 1972).

      . In § 702 of the Act, 20 U.S.C. § 1601
      (Supp. II 1972), Congress stated :
      (a) The Congress finds that the process of eliminating or preventing minority group isolation and improving the quality of education for all children often involves the expenditure of additional funds to which local educational agencies do not have access.
      (b) The purpose of this chapter is to provide financial assistance — ■
      (1) to meet the special needs incident to the elimination of minority group segregation and discrimination among students and faculty in elementary and secondary schools;
      (2) to encourage the voluntary elimination, reduction, or prevention of minority group isolation in elementary and secondary schools with substantial proportions of minority group students ; and
      (3) to aid school children in overcoming the educational disadvantages of minority group isolation.

      . Emergency School Aid Act §§ 707-709, 711, 20 U.S.C. §§ 1606-1608, 1610 (Supp. II 1972) ; II.R.Rep.No.92-576, 92nd Cong., 1st Sess. 5 (1971).

      . Emergency School Aid Act § 706(a)(1), 20 U.S.C. § 1605(a) (1) (Supp. II 1972).

      . Emergency School Aid Act 710(c), 20 U.S. C. § 1609(c) (Supp. II 1972).

      . Emergency School Aid Act § 706(d) (1)(A)-(D), 20 U.S.C. § 1605(d) (1) (A)-(D) (Supp. II1972).

      . Emergency School Aid Act § 706(d)(1)(B), 20 U.S.C. § 1605(d)(1)(B) (Supp. II 1972).

      . The proviso reads as follows :
      [S]uch agency may make application for a waiver of ineligibility, which application shall specify the reason for its ineligibility, contain such information and assurances as the Secretary shall require by regulation in order to insure that any practice, policy, or procedure, or other activity resulting in the ineligibility has ceased to exist or occur and include such provisions as are necessary to insure that such activities do not reoccur after the submission of the application.
      Emergency School Aid Act § 706(d)(1), 20 U.S.C. § 1605(d) (1) (Supp. II1972).

      . Emergency School Aid Act § 706(d)(3), 20 U.S.C. § 1605(d) (3) (Supp. II1972).

      . Emergency School Aid Act § 706(d)(1), 20 U.S.C. § 1605(d) (1) (Supp. II1972).

      . 38 Fed.Reg. 3450-71, 45 C.F.R. pt. 185 (1973).

      . 38 Fed.Reg. 3462, 45 C.F.R. § 185.43(b) (2) (1973).

      . 38 Fed.Reg. 3463, 45 C.F.R. § 185.44(d) (3) (1973).

      . Id.

      . Statement of Peter E. Holmes, Director, Office of Civil Rights, Department of Health, Education and Welfare, J.App. 38.

      . Among the ineligibles were Baltimore, Detroit, Los Angeles, Rochester, and Richmond (California), the five cities upon which this litigation centers. Richmond withdrew its application for waiver, while the case was before the District Court, and apparently it has not since reapplied.

      . 38 Fed.Reg. 18899, 45 C.F.R. § 185.44(d) (3) (1973).

      . The new regulation reads:
      (3) In the case of ineligibility resulting from discriminatory assignment of teachers as prohibited by § 185.43(b)(2), such applications for waiver shall contain evidence that such agency has adopted and implemented a nondiscriminatory assignment policy. In the case of a local educational agency implementing a j)lan . . . [of desegregation], such evidence shall indicate that such agency is complying with the requirements of such plan with respect to the assignment of faculty. In the case of local educational agencies not implementing such a plan, or implementing such a plan which contains no provision as to assignment of faculty, such evidence shall include at a minimum :
      (i) Adoption by such agency of a policy of nondiscriminatory assignment of faculty and staff members;
      (ii) Determination of all faculty and staff assignments made after the date of application for waiver in a manner which does not contribute to or reinforce the racial or ethnic identifiability of any school operated by such agency;
      (iii) Adoption of a plan to eliminate all full-time teaching facilities composed exclusively of members of a single racial or ethnic group no later than the end of the period for which assistance is to be awarded; and
      (iv) Adoption of a plan for assignment of faculty and staff members which will eliminate all racially or ethnically identifiable faculties at schools operated by such agency within a reasonable period of time but in no event later than the commencement of the 1975-76 academic year. In the case of school districts in which the percentage of minority group members on the full-time teaching faculty is less than the percentage of minority group members in the student body, such plans shall include a plan of affirmative action to increase the percentage of minority group members on the full-time teaching faculty of such agency.
      38 Fed.Reg. 21646, 45 C.F.R. § 185.44(d) (3) (1973).

      . 45 C.F.R. § 185.44(d) (3) (i), (ii) (1973), quoted supra note 21.

      . 45 C.F.R. § 185.44(d) (3) (iii), (iv) (1973), quoted supra note 21.

      . See text supra at note 17.

      . The application of a sixth city, Chicago, Illinois, was denied because a binding collective bargaining agreement precluding involuntary teacher-transfers prior to the fall of 1976 disabled the city from meeting the regulation’s two-year deadline for eliminating racial identifiability of faculties.

      . The five cities are identified in note 19, supra.

      . Emergency School Aid Act § 706(d)(6), 20 U.S.C. § 1605(d)(6) (Supp. II 1972).

      . The Committee on Labor and Public Welfare of the Senate and the Committee on Education and Labor of the House of Representatives. Id.

      . Kelsey v. Weinberger, supra note 3.

      . Emergency School Aid Act § 706(d)(1)(B), 20 U.S.C. § 1605(d)(1)(B) (Supp. II 1972).

      . Appellants so allege, and appellees do not deny. Appellees do argue that racial identifiability of faculties, standing alone, does not demonstrate racial discrimination within the meaning of the Act, but we are satisfied that that point must fail. A prima facie case of unconstitutional discrimination exists where it is possible to identify a “white school” or a “black school” simply by reference to the racial composition of its teachers and staff. Swann v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 1, 18, 91 S.Ct. 1267, 28 L.Ed.2d 554 (1971); Davis v. Board of School Comm’rs, 402 U.S. 33, 35, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971); United States v. Montgomery County Bd. of Educ., 395 U. S. 225, 236, 89 S.Ct. 1670, 23 L.Ed.2d 263 (1969); Green v. County School Bd., 391 U.S. 430, 435, 88 S.Ct. 1689, 20 L.Ed.2d 716 (1968); Bradley v. School Bd., 382 U.S. 103, 105, 86 S.Ct. 224, 15 L.Ed.2d 187 (1965). Moreover, appellees themselves originally rejected the cities’ applications for assistance on the ground that the effects of racially induced teacher assignments persisted. And in any event, since the District Court disposed of the case by summary judgment, appellants are entitled to a trial on the issue if material.

      . Emergency School Aid Act § 706(d)(3), 20 U.S.C. § 1605(d)(3) (Supp. II 1972) (emphasis supplied).

      . See note 21, supra.

      . Kelsey v. Weinberger, supra note 3, 363 F.Supp. at 524.

      . Id.

      . Both sides refer to legislative history but we find nothing in the committee reports or the floor debates which would resolve the conflicting interpretations they give to the statutory phrase “ceased to exist.” So barren is the historical material that we are constrained to pause only for a single comment in regard to it.

      Appellees call attention to a colloquy during debate in the House of Representatives, 117 Cong.Rec. 39332-33 (1971), as evidence that the language in question was not intended to adopt one of the holdings in Singleton v. Jackson Municipal Separate School Hist., 419 F.2d 1211 (5th Cir.), rev’d in part, sub nom., Carter v. West Feliciana Parish School Bd., 396 U.S. 290, 90 S.Ct. 608, 24 L.Ed,2d 477 (1970), wherein the Fifth Circuit announced a substantive standard for dismantling racially identifiable faculties in a dual school system. Id. at 1217-1218. The Court required the involved school district to reassign teaching staffs to produce a ratio of minority to majority-group personnel on the faculty in each school substantially equivalent to the ratio of the groups in the system as a whole, id. at 1218, and directed the district to make involuntary transfers of faculty members if necessary. Id. The Court also reiterated the obligation of every school in the district to terminate duality at once and to hereafter operate unitary schools only. Id. at 1216-1217.
      The colloquy to which appellees refer — between Congressmen Pucinski, Waggoner and Esch — is wholly unrelated to the statutory language we are summoned to interpret. It was precipitated by an inquiry as to whether “perfect racial balance in the faculty in every single school would be required” 117 Cong.Rec. 39332 (1971)- — a question of the degree of faculty balance, an important element of the Singleton decision. See 419 F. 2d at 1216-1217. Moreover, the underlying assumption upon which the exchange proceeded was uncontested, namely, that the faculties must be desegregated. In the case at bar, however, battle is joined over whether the Secretary may allow school districts to continue discriminatory teacher assignments over a two-year period, and the constructional problem centers on the time at which faculty desegregation must occur rather than the degree of desegregation demanded. The colloquy does not touch the element of immediacy which constituted another important component of the Singleton decision.

      . United States v. Vuitch, 402 U.S. 62, 70, 91 S.Ct. 1294, 28 L.Ed.2d 601 (1971); United States v. National Dairy Prods. Corp., 372 U.S. 29, 32, 83 S.Ct. 594, 9 L.Ed.2d 561 (1963); Crowell v. Benson, 285 U.S. 22, 62, 52 S.Ct. 285, 76 L.Ed. 598 (1922).

      . Lynch v. Overholser, 369 U.S. 705, 710-711, 82 S.Ct. 1063, 8 L.Ed.2d 211 (1962); International Ass’n of Machinists v. Street, 367 U.S. 740, 749-750, 81 S.Ct. 1784, 6 L.Ed.2d 1141 (1961); Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960); United States v. Harriss, 347 U.S. 612, 618 n. 6, 74 S.Ct. 808, 98 L.Ed. 989 (1954); American Communications Ass’n v. Douds, 339 U.S. 382, 407, 70 S.Ct. 674, 94 L.Ed. 925 (1950); United States v. CIO, 335 U.S. 106, 120-121, 68 S.Ct. 1349, 92 L.Ed. 1849 (1948).

      . Lucas v. Alexander, 279 U.S. 573, 577, 49 S.Ct. 426, 428, 73 L.Ed. 851 (1929).

      . Ex parte Endo, 323 U.S. 283, 299, 65 S.Ct. 208, 217, 89 L.Ed. 243 (1944). See also United States v. Rumely, 345 U.S. 41, 46, 73 S.Ct. 543, 97 L.Ed. 770 (1947).

      . United States v. Thompson, 147 U.S.App.D.C. 1, 5, 452 F.2d 1333, 1337 (1971), cert. denied, 405 U.S. 998, 92 S.Ct. 1251, 31 L.Ed. 467 (1972).

      . Kelsey v. Weinberger, supra note 3, 363 F.Supp. at 525.

      . See United States v. Harriss, supra noth 38, 347 U.S. at 618 n. 6; American Communications Ass’n v. Douds, supra note 38, 339 U.S. at 407; United States v. CIO, supra note 38, 335 U.S. at 121.

      . Brown v. Board of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954).

      . Bolling v. Sharpe, 347 U.S. 497, 74 S.Ct. 693, 98 L.Ed. 884 (1954).

      . Brown v. Board of Educ., 349 U.S. 294, 75 S.Ct. 753, 99 L.Ed. 1083 (1955).

      . Id. at 301.

      . Green v. County School Bd., supra note 31, 391 U.S. at 436.

      . Id. at 437-438. Accord, Keyes v. School Dist. No. 1, 413 U.S. 189, 200, 93 S.Ct. 2686, 37 L.Ed.2d 548 (1973); Swann v. Charlotte-Mecklenburg Bd. of Educ., supra note 31, 402 U.S. at 15; Alexander v. Holmes County Bd. of Educ., 396 U.S. 19, 20-21, 90 S.Ct. 29, 24 L.Ed.2d 19 (1969).

      . Swann v. Charlotte-Mecklenburg Bd. of Educ., supra note 31, 402 U.S. at 15.

      . “[P]roblems related to . . . personnel” were among those specifically earmarked in Brown II for early attention by school authorities. Brown v. Board of Educ., supra note 46, 349 U.S. at 300-301.

      . Swann v. Charlotte-Mecklenburg Bd. of Educ., supra note 31, 402 U.S. at 18.

      . Id.

      . Brown v. Board of Educ., supra note 46, 349 U.S. at 301.

      . Watson v. City of Memphis, 373 U.S. 526, 529, 83 S.Ct. 1314, 1316, 10 L.Ed.2d 529 (1963).

      . Id. at 530. Accord, Calhoun v. Latimer, 377 U.S. 263, 264-265, 84 S.Ct. 1235, 12 L.Ed.2d 288 (1964); Goss v. Board of Educ., 373 U.S. 683, 689, 83 S.Ct. 1405, 10 L.Ed.2d 632 (1963).

      . Griffin v. County School Bd., 377 U.S. 218, 234, 84 S.Ct. 1226, 1235, 12 L.Ed.2d 256 (1964).

      . Bradley v. School Bd., supra note 31, 382 U.S. at 105 (emphasis supplied). Accord, Green v. County School Bd., supra note 31, 391 U.S. at 438-439; Rogers v. Paul, 382 U.S. 198, 199, 86 S.Ct. 358, 15 L.Ed.2d 265 (1965).

      . Alexander v. Holmes County Bd. of Educ., supra note 49, 396 U.S. at 20 (emphasis supplied). Accord, Dowell v. Bd. of Educ., 396 U.S. 269, 270, 90 S.Ct. 415, 24 L.Ed.2d 414 (1969). See also Swann v. Charlotte-Mecklenburg Bd. of Educ., supra, note 31, 402 U.S. at 13-14.

      . Norwood v. Harrison, 413 U.S. 455, 467, 93 S.Ct. 2804, 2812, 37 L.Ed.2d 723 (1973). Accord, Griffin v. County School Bd., supra note 57, 377 U.S. at 231-232; Cooper v. Aaron, 358 U.S. 1, 19, 78 S.Ct. 1401, 3 L.Ed.2d 5 (1958); Hall v. St. Helena Parish School Bd., 197 F.Supp. 649, 653-656 (E.D.La.1961), aff’d, 368 U.S. 515, 82 S.Ct. 529, 7 L.Ed.2d 521 (1962).

      . Cooper v. Aaron, supra note 60, 358 U.S. at 19.

      . Bolling v. Sharpe, supra note 45, 347 U.S. at 499-500.

      . Adams v. Richardson, 156 U.S.App.D.C. 267, 274, 480 F.2d 1159, 1166 (en bane 1973).

      . See text supra at notes 16-18.

      . See note 21, supra.

      . See note 21, supra.

      . See note 21, supra.

      . See text supra at notes 54-59.

      . Kelsey v. Weinberger, supra note 3, 363 F.Supp. at 525.

      . Id. at 524.

      . Id. at 525.

      . Programs which may qualify for assistance under the Act include those providing for remedial services, additional staff, training and retraining of staff, guidance and counseling, new curricula and instructional techniques, innovative interracial and pilot projects, community activities, special administrative and auxiliary services, planning activities, minor remodeling and alterations of facilities, educational television, and other specially designed projects. See Emergency School Aid Act §§ 707-709, 711, 20 U.S.O. §§ 1606-1608, 1610 (Supp. II1972).

      . See Emergency School Aid Act §§ 707-709, 711, 20 U.S.C. §§ 1606-1608, 1610 (Supp. II1972).

      . We may note that “faculty and staff desegregation . . . may not be made contingent upon the willingness of teachers voluntarily to transfer.” Spangler v. Pasadena City Bd. of Educ., 311 F.Supp. 501, 523 (C.D.Cal.1970). Accord, United States v. Greenwood Municipal Separate School Dist., 406 F.2d 1086, 1093-1094 (5th Cir. 1969); United States v. Board of Educ., 396 F.2d 44, 50-51 (5th Cir. 1968); Davis v. Board of Comm’rs, 393 F.2d 690, 695-698 (5th Cir. 1968), aff’d, 402 U.S. 33, 35, 91 S.Ct. 1289, 28 L.Ed.2d 577 (1971); Monroe v. Commissioners of City of Jackson, 380 F.2d 955, 960 (6th Cir. 1967), rev’d on other grounds, 391 U.S. 450, 88 S.Ct. 1700, 20 L.Ed.2d 733 (1968).

      . See e. g., Nesbit v. Statesville City Bd. of Educ., 418 F.2d 1040, 1042 (4th Cir. en banc 1969); Singleton v. Jackson Municipal Separate School Dist., supra note 36, 419 F.2d at 1217-1218; Booker v. Special School Dist. No. 1, 351 F.Supp. 799, 810 (D.Minn.1972).

      . See text supra at notes 60-63.


author: PER CURIAM:

text:
    UNITED STATES of America v. Marquette PIERCE, Appellant.
    No. 73-1583.
    United States Court of Appeals District of Columbia Circuit.
    May 14, 1974.
    Theodore J. Christensen, Washington, D. C. (appointed by this court) was on the brief for appellant.
    Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, and John A. Terry, John O’B. Clarke, Jr., and Steven R. Sehaars, Asst. U. S. Attys, were on the brief for appellee.
    Before McGOWAN and TAMM, Circuit Judges, and EDWARDS, Circuit Judge for the Sixth Circuit.

       Sitting by designation pursuant to Title 28 U.S.Code § 291(a).

   PER CURIAM:

Appellant was convicted by the District Court, on stipulated facts and without a jury, of distributing, and of possessing with intent to distribute, heroin in violation of 21 U.S.C. § 841(a). Prior to trial, the court denied a motion to dismiss the indictment on the ground of excessive delay, assertedly amounting to a denial of due process, in proceeding against appellant after the commission of the offense. See Ross v. United States, 121 U.S.App.D.C. 233, 349 F.2d 210 (1965). The court also announced that it would, as requested by the prosecution, dispense with the giving of the so-called purchasing agent instruction used on occasion in cases arising under the predecessor statute. The stipulated facts,- and the basis of the court’s rulings in these two respects, appear in its memorandum opinion reported at 354 F.Supp. 616 (D.D.C.1973). Those rulings constitute the issues raised on this appeal.

As to the first, the District Court found that under all the circumstances the delay in question was “not so protracted or prejudicial or so likely to produce the mistaken identity as to justify the dismissal of the indictment.” Our examination of the record provides us with no basis for disturbing this conclusion of the District Court.

Similarly, we find that the District Court was on sound ground in refusing to give the purchasing agent instruction. As it pointed out, the charge in this case is not that appellant sold, but that he distributed, a controlled substance; and the new statute expressly defines “distribution” as meaning “to deliver.” Moreover, the words “deliver” or “delivery” are defined in the statute to mean “the actual, constructive, or attempted transfer of a controlled substance, whether or not there exists an agency relationship.” [Emphasis supplied.]

The purchasing agent instruction came into being in connection with the prohibition upon the “sale” of narcotics imposed by the Harrison Act, 26 U.S.C. § 4705(a). This court has heretofore held that the instruction was not required in connection with 26 U.S.C. § 4704(a), which included distribution, or under 21 U.S.C. § 174 (now also repealed), which was addressed to facilitating the concealment of a narcotic drug. Lewis v. United States, 119 U.S. App.D.C. 145, 337 F.2d 541 (1964). The distinction between “sale”, on the one hand, and “distribution”, on the other, has been made even more pointed by Congress in the definition of the latter term contained in the successor statute, as other circuits have recently recognized. United States v. Workopich, 479 F.2d 1142, 1147 (5th Cir. 1973); United States v. Miller, 483 F.2d 61 (5th Cir. 1973); United States v. Hernandez, 480 F.2d 1044, 1046 (9th Cir. 1973). We agree with this approach, and we think the District Court ruled correctly in refusing to give this instruction.

Affirmed.

      . The statute under which appellant was charged is a part of the Comprehensive Drug Abuse Prevention and Control Act of 1970. This new act represented a thoroughgoing revision of the federal narcotics statutes and, in particular, explicitly repealed the Harrison Narcotic Act which originated in 1914.


author: MacKINNON, Circuit Judge:

text:
    UNITED STATES of America v. Jasper L. MAYO, a/k/a Calvin Daily, Appellant.
    No. 73-1660.
    United States Court of Appeals, District of Columbia Circuit.
    May 17, 1974.

      John G. Gill, Jr., Washington, D. C. (appointed by this court), was on the brief for appellant.
    Harold H. Titus, Jr., U. S. Atty. at the time the brief was filed, John A. Terry, Barry W. Levine and William D. Pease, Asst. U. S. Attys., were on the brief for appellee.
    Before WRIGHT and MacKINNON, Circuit Judges, and DAVIES, United States Senior District Judge for the District of North Dakota.

       Sitting by designation pursuant to 28 U.S.C. § 294(d).

   MacKINNON, Circuit Judge:

Appellant seeks reversal of his conviction under the National Firearms Act for possession of an unregistered sawed-off shotgun on the basis that the trial judge erroneously rejected his claim of entrapment. We find the evidence insufficient to support such alleged defense and affirm the judgment of conviction.

I

About 3:30 P.M. on January 10, 1973, two Metropolitan Police officers on duty in a marked police automobile were approached by a young lady who stopped the officers and reported that she had just been raped by two men in a nearby apartment. She also told the policemen that one of the men had a sawed-off shotgun. The policemen then started to drive to the apartment with the young lady when she suddenly pointed out two men walking along the street as her two attackers.

The police, with three reinforcements, then approached the two suspects, and the young lady again identified the two as her attackers. At that point the policemen frisked the suspects and found a sawed-off shotgun concealed beneath appellant’s three-quarter length coat. The parties stipulated that the gun was not registered as required by 26 U.S.C. §§ 5812(a) and 5841. A so-called sawed-off shotgun is defined as a firearm for purposes of the National Firearms Act.

At trial appellant admitted possession of the weapon and acknowledged knowing at the time that the gun was loaded and that it was illegal to possess or carry such a sawed-off shotgun (Tr. 64). He denied any knowledge that the statute required the registration of the transfer prior to possession. Appellant testified that he had bought the gun from the young lady only ten or fifteen minutes before his arrest. Appellant’s companion (Streeter) corroborated his testimony and also acknowledged knowing that it was illegal to possess a sawed-off shotgun.

For the purpose of this chapter—
(a) Firearm. — The term “firearm” means (1) a shotgun having a barrel or barrels of less than 18 inches in length; (2) a weapon made from a shotgun if such weapon as modified has an overall length of less than 26 inches or a barrel or barrels of less than 18 inches in length

At trial by the court without a jury, by way of a defense, appellant attempted to argue that he was entrapped by the young lady and by operation of the provisions of the statute. This defense was rejected by the judge and appellant was convicted on one count of possession of an unregistered firearm (sawed-off shotgun) in violation of 26 U.S.C. §§ 5861(d) and 5871.

II

It is fundamental that a defense based on entrapment requires the “inducement by an official .... The entrapment defense does not extend to inducement by a private citizen . . . . ” If, however, a Government official uses a private citizen as an agent, and in such manner induces an otherwise unwilling person to commit an offense which that person would not have committed but for the inducement, then the defense will lie.

Applying these principles to this case, we note that there is no evidence of any agency relationship between the young lady and the Government prior to the sale of the sawed-off shotgun. Even if we completely accept appellant’s version of the facts there is no showing that any person associated with the Government directly or indirectly suggested, aided, abetted, planned, induced, counselled, approved or wilfully caused the sale to, or possession of, the gun by appellant.

We reject completely, as a conclusion unwarranted by the facts, appellant’s argument that because the transferor (allegedly the young lady) was obligated by the statute to register the transfer of the firearm that such facts impliedly made her an agent of the Government for purposes of the entrapment defense. Under the statute, in registering the transfer, the transferor acts solely on his own behalf and not , as an agent of the Government.

Even if the statute did constitute the transferor the agent of the Government, her authority as agent would be limited to registering the firearm and would not extend to acting directly contrary to her authority. This rule is particularly applicable where, as here, the act of the alleged agent would constitute a crime. Had the Government engaged the young lady to procure the commission of the crime, the defense of entrapment would lie ; but where there is no showing that the agent provocateur was purposefully acting on behalf of the Government the defense does not obtain. Here, it is unquestioned that the Government took no part in, and had no prior knowledge of, the transaction.

. Ill

Appellant’s argument, however, finally twists itself into a claim, in effect, that he was entrapped

by this system set up by Congress and that [the young lady] violated the provisions of 26 U.S.C. § 5861(e) which forbid the transfer of an unregistered firearm.

Br. at 13 (emphasis added). In this respect, the essence of his claim is that his violation of the statute should be obviated because it rested in part on the failure of the transferor to comply with the statute by registering the firearm. However, the fact that the gun was not registered was well known to appellant since it would have been impossible to register the transfer in the fifteen minute interval between the transfer and his arrest. The statute prohibits possession of an unregistered firearm and the violation occurred here at the moment appellant assumed dominion over the gun. When a purchaser of such a weapon takes possession immediately upon purchase, and without the statutorily required approval of the transfer and registration, his offense is complete. That the transferor may also have violated the statute by failing to register the transfer, and .that the result of her violation is a feature of his offense, is no justification for his illegal act any more than the act of any aider or abettor absolves any principal law violator. It is perfectly reasonable for Congress to require transferors to register the transfer of firearms and to prohibit transferees from possessing such weapons until they are registered. The statute simply requires a purchaser (transferee) to defer taking possession of the weapon until the transaction is registered. This requirement is easily satisfied and does not constitute an illegal trap for the unwary.

Appellant also claims as a defense that he did not possess sufficient knowledge of the registration requirements of the Act to support his conviction. However, even if the lack of scienter had been proved, it would not be a defense to the possession of the illegal firearm specified in this indictment. The statute here involved is one of a great many that regulates conduct and imposes criminal sanctions without requiring a common law mens rea. In a case involving the federal narcotics statute Chief Justice Taft noted

that in the prohibition or punishment of particular acts, the state may in the maintenance of a public policy provide “that he who shall do them shall do them at his peril and will not be heard to plead in defense good faith or ignorance.” Many instances of this are to be found in regulatory measures in the exercise of what is called the police power where thé emphasis of the statute is evidently upon achievement of some social betterment rather than the punishment of the crimes as in cases of mala in se. [Citing cases.]

United States v. Balint, 258 U.S. 250, 252, 42 S.Ct. 301, 66 L.Ed. 604 (1922). The quotation incorporated in the above excerpt is from Shevlin-Carpenter Co. v. Minnesota, 218 U.S. 57, 70, 30 S.Ct. 663, 54 L.Ed. 930 (1910), which rejected lack of scienter as a defense to a violation of a state statute prohibiting “casual and involuntary” timber trespass upon the principle that the statute “‘declare[d] a crime, irrespective of the actor’s intent.’ ” Id. at 68.

The National Firearms Act, upon which the present indictment is based, was held in United States v. Freed, 401 U.S. 601, 607-610, 91 S.Ct. 1112, 28 L.Ed.2d 356 (1973) to be within this group of regulatory statutes. In his majority opinion in Freed, Justice Douglas concluded that the Act is a regulatory measure enacted in the interest of public safety, that the type of offense it creates is closer to the Pure Food Act violations which was the subject of United States v. Dotterweich, 320 U.S. 277, 284, 64 S.Ct. 134, 88 L.Ed. 48 (1943) (adulterated and misbranded drugs) than to the offenses in Morissette v. United States, 342 U.S. 246, 251, 72 S.Ct. 240, 96 L.Ed. 288 (1952) (theft of Government property) and Lambert v. California, 355 U.S. 225, 78 S.Ct. 240, 2 L.Ed.2d 228 (1957) (felony registration), and that the offenses proscribed by the Act require no specific intent or knowledge. As with the grenade in Freed, a sawed-off shotgun is a highly dangerous weapon, the possession of which would rarely be an innocent act. The same may be said of the other weapons and devices covered by the Act, including machine guns, sawed-off rifles, bombs, poison gas, rockets, mines and other destructive devices.

In any event, appellant admitted at trial that he knew it was illegal to possess and carry such weapon.

We accordingly affirm the conviction.

Judgment accordingly.

      . The indictment charged :
      On or about January 10, 1973, within the District of Columbia, JASPER L. MAYO, also known as CALVIN DAILY knowingly possessed a firearm, that is, a short-barreled shotgun, which had not been registered to him in the National Firearms Registration and Transfer Record as required by Chapter 53, Title 26, United States Code; in violation of Sections 5861(d) and 5871, Title 26, United States Code.
      (Violation of Title 26, U.S.Code, Section 5861(d))

      . 26 U.S.C. § 5812 provides :
      5812. Transfers.
      (a) Applications. — A firearm shall not be transferred unless (1) the transferor of the firearm has filed with the Secretary or his delegate a written application, in duplicate, for the transfer and registration of the firearm to the transferee on the apxdication form prescribed by the Secretary or his delegate; (2) any tax payable on the transfer is x>aid as evidenced by the proper stamp affixed to the original application form; (3) the transferee is identified in the application form in such manner as the Secretary or his delegate may by regulations prescribe, except that, if such person is an individual, the identification must include his fingerprints and his photograph; (4) the transferor of the firearm is identified in the application form in such manner as the Secretary or his delegate may by regulations prescribe; (5) the firearm is identified in the application form in such manner as the Secretary or his delegate may by regulations prescribe, and (6) the application form shows that the Secretary or his delegate has approved the transfer and the registration of the firearm to the transferee. Applications shall be denied if the transfer, receipt, or possession of the firearm would place the transferee in violation of law.
      (b) Transfer of possession. — The transferee of a firearm shall not take possession of the firearm unless the Secretary or his delegate has approved the transfer and registration of the firearm to the transferee as required by subsection (a) of this section. (Aug. 16, 1954, c. 736, 68A Stat. 722; Oct. 22, 1968, P.L. 90-618, Title II, § 201, 82 Stat. 1228.)
      26 U.S.C. § 5841(a) provides:
      5841. Registration of Firearms.
      (a) Central registry. — The Secretary or his delegate shall maintain a central registry of all firearms in the United States which are not in the possession or under the control of the United States. This registry shall be known as the National Firearms Registration and Transfer Record. The registry shall include—
      (1) identification of the firearm ;
      (2) date of registration; and
      (3) identification and address of person entitled to possession of the firearm.

      . 26 U.S.C. § 5845(a) provides:

      . 26 U.S.C. § 5861(d) provides :
      It shall be unlawful for any person—
      (d) to receive or possess a firearm which is not registered to him in the National Firearms Registration and Transfer Record ....
      Pub.L. 90-618, Title II, § 201, Oct. 22, 1968, 82 Stat. 1234.
      26 U.S.C. § 5871 provides:
      Any person who violates or fails to comply with any provision of this chapter shall, upon conviction, be fined not more than $10,000, or be imprisoned not more than ten years, or both, and shall become eligible for parole as the Board of Parole shall determine. (Oct. 22, 1968, P.L. 90-618, Title II, § 201, 82 Stat. 1234.)

      . Johnson v. United States, 115 U.S.App.D.C. 63, 64, 317 F.2d 127, 128 (1963); see United States v. Russell, 411 U.S. 423, 427 n. 4, 433, 93 S.Ct. 1637, 36 L.Ed.2d 366 (1973); Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Sorrells v. United States, 287 U.S. 435, 53 S.Ct. 210, 77 L.Ed. 413 (1932).

      . Johnson v. United States, 115 U.S.App.D.C. 63, 317 F.2d 127 (1963).

      . Cf. M. J. Uline Co. v. Cashdan, 84 U.S. App.D.C. 58, 171 F.2d 132 (1948) (agent who exceeds the authority of his employment does not bind his principal); Inland Waterways Corp. v. Hardee, 69 App.D.C. 268, 275, 100 F.2d 678, 685 (1938) (agent who acts in excess of his authority acts on his own responsibility), rev’d on other grounds, 309 U.S. 517, 60 S.Ct. 646, 84 L.Ed. 901 (1940); Hirning v. Federal Reserve Bank, 52 F.2d 382, 387 (8th Cir. 1931); Vann v. Federal Reserve Bank, 47 F.2d 786 (E.D.Va.1929).

      . Johnson v. United States, 115 U.S.App.D.C. 63, 317 F.2d 127 (1963).

      . See Sherman v. United States, 356 U.S. 369, 78 S.Ct. 819, 2 L.Ed.2d 848 (1958); Brooke v. United States, 128 U.S.App.D.C. 19, 385 F.2d 279 (1967); Smith v. United States, 118 U.S.App.D.C. 38, 331 F.2d 784 (1964); Johnson v. United States, 115 U.S.App.D.C. 63, 317 F.2d 127 (1963).

      . 26 U.S.C. § 5812(b). See note 2 supra.

      . Id.

      . 18 U.S.C. § 2 provides:
      § 2. Principals
      (a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal.
      (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal.
      June 25, 1948, c. 645, 62 Stat. 684; Oct. 31,1951, c. 655, § 17b, 65 Stat. 717.

      . 26 U.S.C. § 5812(b). See note 2 supra.

      . 26 Ü.S.C. § 5845 (82 Stat. 1230).

      . Tr. at 64. Appellant also admitted knowing that the gun was loaded. Id.


text:
    AMERICAN PUBLIC GAS ASSOCIATION, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Shell Oil Company et al., Intervenors. CONTINENTAL OIL COMPANY, Petitioner, v. FEDERAL POWER COMMISSION, Respondent, Aztec Oil and Gas Company et al., Intervenors.
    No. 71-1812, 71-1873.
    United States Court of Appeals, District of Columbia Circuit.
    Argued Oct. 26, 1972.
    Decided May 23, 1974.
    Rehearing Denied July 17, 1974.

      Charles F. Wheatley, Jr., Washington, D. C., for petitioner in No. 71-1812.
    Thomas H. Burton, Houston, Tex., for petitioner in No. 71-1873.
    Joan E. Heimbigner, Atty., Federal Power Commission with whom Gordon Gooch, Gen. Counsel, Leo E. Froquer, Sol., and George W. McHenry, Jr., First Asst. Sol., Federal Power Commission were on the brief, for respondent. J. Richard Tiano, First Asst. Sol., Federal Power Commission at the time the record was filed, also entered an appearance for respondent.
    John R. Rebman, Bartlesville, Okl., with whom Martin N. Erck and J. Kirby Ellis, Houston, Tex., were on the brief, for intervenors, Humble Oil and Refining Co.
    Tilford A. Jones, Bethesda, Md., with whom William A. Mogel, Bethesda, Md. whom William A. Mogel, Bethesda, Md., was on the brief, for intervenor, United Distribution Companies.
    Kenneth Heady and John L. Williford, Bartlesville, Okl., were on the brief for intervenor, Phillips Petroleum Co.

      Thomas G. Johnson and Dan A. Bruce, Houston, Tex., were on the brief for intervenor, Shell Oil Co.
    Kirk W. Weinert and C. Fielding Early, Jr., Houston, Tex., were on the brief for intervenor, Texaco, Inc. J. Donald Annett, Washington, D. C., also entered an appearance for intervenor, Texaco Inc.
    Edwin S. Nail, Boston, Mass., was on the brief for intervenor,. Amerada Hess Corp.
    John E. Watson, Houston, Tex., entered an appearance for intervenor, Tenneco Oil Co. in No. 71-1873.
    Charles E. McGee, Washington, D. C., entered an appearance for intervenor, Atlantic Richfield Co. in No. 71-1873.
    Oliver Barr McClellan entered an appearance for intervenor, Aztec Oil and Gas Co. in No. 71-1873.
    Before DANAHER, Senior Circuit Judge, and MacKlNNON, and ROBB, Circuit Judges.
   PER CURIAM:

This case presents three questions: (1) whether the Federal Power Commission properly determined initial rates for independent producer areas under its rulemaking authority; (2) whether the procedures adopted by the Commission met the requirements of due process; and (3) whether the initial rates established by the Commission for the Rocky Mountain area are supported by substantial evidence. We answer each question in the affirmative.

The case commenced on June 17, 1970 when the Commission issued a Notice of Investigation and Proposed Rulemaking in Docket No. R-389, 35 Fed.Reg. 10152 (1970). In its notice the Commission proposed to issue rules fixing the terms and conditions under which it would issue permanent certificates of public convenience and necessity for any sales of natural gas subject to the Commission’s jurisdiction in the Permian Basin area. The rules were to apply to any sales of natural gas under contracts dated after the date of issuance of the rules. The notice stated: “The rates to be set pursuant to this rulemaking will be firm rates, not subject to refund obligation. However, any rate set will be subject to prospective modification at the conclusion of the new Permian Basin area rate proceeding which we have today instituted by separate order in Docket No. AR70-1, 35 F.R.”

On July 17, 1970 the Commission issued a further notice of proposed rule-making in Docket No. R-389A, 35 Fed. Reg. 11638 (1970), expanding the scope of the proposed rulemaking in Docket No. R-389 from the Permian Basin area to include all new sales of natural gas, nationwide.

The Commission’s notices stated:

As an aid to interested parties (hereinafter “parties”) in preparing responses, and as notice to those who may be examined in this investigation, we set forth specific areas of inquiry, the purpose of which is to determine the terms and conditions which will result in an adequate supply of natural gas for consumers at the lowest rate consistent with maintaining an industry structure capable of providing, and motivated to provide, service with its attendant risks. (J.A. 45.)

Specifically, the Commission called on all parties to submit three types of information: (1) an estimate of the current nationwide cost of finding and producing nonassociated natural gas, using the costing methods of Opinions Nos. 468 and 546; (2) rate of return and other factors discussed in Permian Basin Area Rate Cases, 390 U.S. 747, 88 S.Ct. 1344, 20 L.Ed.2d 312, rehearing denied, 392 U.S. 917, 88 S.Ct. 2050, 20 L.Ed.2d 1379 (1968), and Austral Oil Co. v. F.P.C., 428 F.2d 407 (5th Cir.), cert. denied, 400 U.S. 950, 91 S.Ct. 243, 27 L.Ed.2d 257 (1970); and (3) the weight to be given to contract prices, terms and inducements or commodity value, in considering producer rates, and whether the market mechanism would protect consumer interests.

The Commission required parties to serve copies of their comments on all other parties (R. 2472) and scheduled public hearings in several locations, to allow interested persons to state their views in lieu of filing written comments. (R. 2471, 2490, 2544.) The Commission provided an opportunity to reply to original submittals. (R. 2472.)

The Commission also designated two staff attorneys as investigative officers empowered to receive evidence and documents deemed relevant and material to the inquiry. These officers conducted an investigation of intrastate sales by 48 large natural gas producers in the Permian Basin area and 70 large producers in other areas. (R. 2493-95, 2551-53, 2504, 2561-62.) The officers directed the producers to appear, checked their contracts and responses to a questionnaire, and compiled therefrom a composite of weighted average rates and range of rates for intrastate sales in each area. (R. 2506-11, 2519-20, 2565-2611.) These data were received by the Commission on August 14, 1970, and September 9,1970.

On their petitions to intervene, the Commission, by order dated October. 19, 1970, granted intervention to ten cities, state regulatory commissions, and states (R. 1105-06.) Sixty-nine written initial submittals were received by the Commission from parties, including our petitioner Continental Oil Company and other producers (R. 1314-22, 1987-2082) and the Commission staff. (R. 1107-2292.) Public hearings were held in eight major cities and transcripts of the testimony and exhibits were made available to all interested persons. Thereafter, the Commission received thirteen written replies to the initial submittals. (R. 2293-2468.) These replies included one from Texaco, joined by Continental and other producers. (R. 2413-2440.)

On July 15, 1971 the Commission issued Order No. 435 entitled Opinion and Order Establishing Initial Rates in the Rocky Mountain Area. (R. 2651-77.) In that opinion and order the Commission, among other things, essentially made the following determinations:

1. That the proceeding constituted a rulemaking proceeding under the Administrative Procedure Act (R. 2656);
2. That the rulemaking procedures adopted in the proceeding complied with the requirements of the Administrative Procedure Act, the Natural Gas Act, and the constitutional standard of due process (R. 2656-57);
3. That no party had made allegations sufficient to require an adjudicatory hearing with cross-examination (R. 2657-58);
4. That an acute shortage of natural gas exists for present and future markets (R. 2660);
5. That the initial rates set for the Rocky Mountain area should increase the gas supplies available to the interstate market and afford some appreciable relief to pipeline purchasers in the area (R. 2666);
6. That the initial rates at which sales of natural gas in the Rocky Mountain area are to be certificated, without refund obligation, for sales made under contracts dated after June 17,1970, are:
Rates in Cents Per
Mcf at 15.025 psia
Aneth Field 22.50
San Juan 24.00
Uinta — Green River 23.75
Colorado — Julesburg Basin 23.50
Montana — Wyoming 22.75
Montana — Dakota 23.50
(R. 2674.)
7. That such initial rates represent the rate levels for the area involved until such time as the Commission shall promulgate just and reasonable rates in that area (R. 2674).

The petitioners contend that the Commission may not determine initial rates without a formal adjudicatory or “evidentiary” hearing, and that the rulemaking proceedings were a denial of due process.

As proposed in the Notice of Rulemaking and stated in the Commission’s Order No. 435 the rates established were “initial rates at which sales of natural gas in the Rocky Mountain Area are to be certificated, without refund obligation, for sales made under contracts dated after June 17, 1970” and “represent the area rate levels for the areas involved until such time as the Commission shall promulgate just and reasonable rates in said area.” We think this determination of initial rates pursuant to rulemaking proceedings complies with the requirements of the Natural Gas Act and the Administrative Procedure Act.

The Commission acted pursuant to sections 16 and 4, 5, 7 of the Natural Gas Act, 15 U.S.C. §§ 717o and 717c, 717d and 717f. It is settled that the Commission has authority to regulate initial producer rates under section 7 of the Act. Atlantic Refining Co. v. Public Service Commission of N.Y. (CATCO), 360 U.S. 378, 79 S.Ct. 1246, 3 L.Ed.2d 1312 (1959). Since neither section 16 nor section 7 provides that rules must be made “on the record after opportunity for an agency hearing” (5 U.S.C. § 553(c)) these sections on their face do not require the Commission to follow the formal procedures of sections 556 and 557 of the Administrative Procedure Act, 5 U.S.C. §§ 556 and 557. The Commission is not forced to adopt the procedures of a trial, with formal hearings, oral testimony under oath, cross examination and the like. Evidentiary submission in written form may be sufficient. United States v. Florida East Coast Rwy Co., 410 U.S. 224, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973); FPC v. Texaco, Inc., 377 U.S. 33, 84 S.Ct. 1105, 12 L.Ed.2d 112, rehearing denied, 377 U.S. 984, 84 S.Ct. 1881, 12 L.Ed.2d 753 (1964); Mobil Oil Corp. v. FPC, 157 U.S.App.D.C. 235, 483 F.2d 1238 (1973).

As we said in City of Chicago v. FPC, 147 U.S.App.D.C. 312, 324-325, 458 F.2d 731, 743-744 (1971), cert. denied, 405 U.S. 1074, 92 S.Ct. 1495, 31 L.Ed.2d 808 (1972):

Whatever procedure is utilized, a primary objective is the acquisition of information which will enable the Commission to carry out effectively the provisions of the Natural Gas Act. The ability to choose with relative freedom the procedure it will use to acquire relevant information gives the Commission power to realistically tailor the proceedings to fit the issues before it, the information it needs to illuminate those issues and the manner of presentation which, in its judgment, will bring before it the relevant information in the most efficient manner.

The procedure chosen by the Commission must of course give the parties fair notice of exactly what the Commission proposes to do, together with an opportunity to comment, to object, and to make written submissions; and the final order of the Commission must be based upon substantial evidence. See United States v. Florida East Coast Rwy Co., supra, 410 U.S. 224, 241, 93 S.Ct. 810, 35 L.Ed.2d 223 (1973). We think the Commission’s procedures here meet this test.

In its notices of investigation and proposed rulemaking the Commission stated exactly what it proposed to do. Without limiting the scope of any submittals on the issues the Commission then indicated the methodology it proposed to follow, setting forth specific areas of inquiry and requesting relevant information. Procedures were established for the collection of data relating to intrastate contracts, and such data were collected from many producers. Public hearings were held in eight major states and comments and submittals were received from all interested parties, including petitioner Continental Oil Company and other producers. Replies to the initial submittals were also received from Continental and others. All submittals, replies, comments, transcripts and data were made available to all parties. In short, the procedures resulting in Order No. 435 fully complied with the requirements of section 553 of the Administrative Procedure Act.

The petitioners complain that they were denied the right to test through cross examination the underlying bases for the submitted data. Even in a formal adjudicatory hearing under the APA, however, cross examination is not always a right. Thus section 556(d), 5 U.S.C. 556(d) provides in part:

A party is entitled to present his case or defense by oral or documentary evidence, to submit rebuttal evidence, and to conduct such cross-examination as may be required for a full and true disclosure of the facts. In rule making or determining claims for money or benefits or applications for initial licenses an agency may, when a party will not be prejudiced thereby, adopt procedures for the submission of all or part of the evidence in written form. [Emphasis added.]

Here we think the petitioners have failed to demonstrate that cross examination was required for a full and true disclosure of the facts. All submittals and data upon which the Commission relied were tendered to the petitioners for comment, analysis, dissection and criticism, and for the submittal of rebutting material. Although the petitioners claim that cross examination of live witnesses was necessary they do not point to any specific weakness in the proof which might have been explored or developed more fully by that technique than by the procedures adopted by the Commission. We are told in general that the issues of costs, gas supply and rate of return might have been explored, but the petitioners do not suggest what questions were necessary for this purpose, nor do they explain why their written submittals were ineffectual. In the circumstances we cannot say that the rights of the petitioners have been prejudiced. See Long Island RR Co. v. United States, 318 F.Supp. 490, 499 (E.D.N.Y.1970).

In summary we hold that the procedures employed by the Commission accorded due process to the petitioners. The issues were, clearly stated from the outset and the petitioners were given an adequate opportunity to participate in developing evidence bearing upon those issues. There is no reason to believe that the exchanges or dialogue between and among the parties were so inadequate as a mechanism for finding the facts that a trial-type proceeding was necessary. That the procedures were streamlined did not make them improper or unconstitutional. In these respects this case is distinguished from Mobil Oil Corp. v. FPC, 157 U.S.App.D.C. 235, 483 F.2d 1238 (1973). In the Mobil Oil case there was no adequate notice, and much of the data relied upon by the Commission was provided in an informal and to some extent ex parte conference, as distinguished from an adversary setting.

The Commission based its determination of initial rates on four principal factors: (1) the demand for and supply of natural gas in the interstate market; (2) the terms of contracts for gas sales in competing intrastate markets; (3) the current nationwide cost of finding and producing new nonassociated gas, using the methods set forth in the Permian Basin and Austral Oil Company (Southern Louisiana I) proceeding; and (4) rate of return, taking into consideration the risk involved in exploring for and developing new gas reserves.

With respect to demand and supply the Commission found:

No party, not even those who aver an extensive adjudicatory hearing is here required by law, has denied the existence of a critical natural gas shortage. Many pipeline and distribution companies introduced testimony and evidence as to their difficulties in obtaining adequate supplies of gas.
* * * * * *
Adding to the problem is that the increase in demand for gas has been greater than was anticipated. The staff shows that the total demand for natural gas has increased from about 10 trillion cubic feet in 1956 to about 21.4 trillion cubic feet in 1969.
Several of the parties emphasize the magnitude of the potential reserves that might be realized from greater incentive for exploration and development of new supplies.
# * * * * *
However, the overwhelming evidence is that the difficulty is the lack of financial incentive to undertake drilling ventures in order to discover and develop these extensive reserves.
•X- * -X- * * *
We find, therefore, from all of the evidence before us that an acute shortage of natural gas supplies for the existing and future markets in this country does exist, and will continue to exist, if not worsen, in the foreseeable future. Action by this Commission is therefore desirable. We also find that this Commission must, in the discharge of its responsibility under the Natural Gas Act, create and afford a greater incentive for producers of natural gas, whether they be independent, integrated or pipeline producers, to seek and find added supplies of natural gas. We further find that sufficient evidence exists that there is available undiscovered natural gas reserves which if given the necessary incentive, can be found and produced to meet the present and future demands of the country. (R. 2658-2660.)

As for intrastate markets the Commission said:

We have noted from the report filed by our investigating officers in these proceedings, on September 9, 1970, that the weighted average intrastate prices for gas in the Rocky Mountain Area have risen from 15.10 cents to 18.05 cents per Mcf during the period 1966 to 1970. Thus, we are faced here too with an upward trend in prices offered by intrastate buyers. This is merely one more economic factor we must consider. (R. 2671.)

The report to which the Commission referred occupies sixty-one (61) pages in the record (R. 2551-2612) and reflects a composite of data received from producers having relevant intrastate sales of natural gas.

The Commission had before it itemized cost estimates submitted by (1) the Commission staff (R. 1428); (2) the Producers Group (Texaco) including Continental (R. 2417); (3) the California Distributor Group (R. 1258); and (4) United Distribution Companies (R. 2249). The Commission’s order included a composite of these data (R. 2672) which showed that the estimates ranged from 20.65 cents per Mcf, according to United Distribution Companies, to 31.63 cents per Mcf submitted as an alternative by the Producers Group in their response presentation. The initial presentation by the Producers estimated a cost of 25.68 cents per Mcf. Concluding that the initial presentation of the Producers Group was the more acceptable, the Commission found that “the cost range narrows to a difference from a low of 20.65 cents to 25.68 cents ($.2671).”

Only the staff and the Texaco Group introduced testimony and evidence regarding the proper rate of return to be used in the computation of cost of production. The staff introduced cost evidence using a 12% and a 13% rate of return and the staff witness recommended that the 13% rate be used. (R. 1402.) The Producers Group presented cost of service using 12%, 13% and 16% rates. (R. 1995-1998.) Texaco and one other company individually recommended the use of the 16% rate. Considering these estimates in the light of the risk in exploring for and producing gas the Commission concluded that

[A] return on common equity of approximately 15 percent would be fully justified, and would reflect past history for companies confined to the producing function.
We find a rate of return of approximately 15 percent proper to be used in these proceedings. (R. 2670.)

Continental argues that the Commission improperly determined initial rate levels solely on the basis of cost comments, and that in any event the rates established were inadequate to promote necessary and future gas supplies.

We need not labor the point that the Commission has wide discretion in deciding what factors to consider in certifying initial rates as required by public convenience and necessity, FPC v. Sunray DX Oil Co., 391 U.S. 9, 88 S.Ct. 1526, 20 L.Ed.2d 388 (1968); United Gas v. Callery Properties, 382 U.S. 223, 86 S.Ct. 360, 15 L.Ed.2d 284 (1965), rehearing denied, 382 U.S. 1001, 86 S.Ct. 526, 15 L.Ed.2d 491 (1966); Atlantic Refining Co. v. Public Service Commission of N.Y. (CATCO), 360 U.S. 378, 79 S.Ct. 1246, 3 L.Ed.2d 1312 (1959), and cost is one factor which may be considered, Permian Basin Area Rate Cases, 390 U.S. 747, 815, 88 S.Ct. 1344, 20 L.Ed.2d 312 (1968). As we have indicated moreover the record discloses that the Commission did consider factors other than cost comments; contrary to the contention of Continental evidence concerning intrastate sales and supply and demand was considered. We must also decline Continental’s invitation to hold that the rates established were too low. There is no showing that the rates are outside “the ‘zone of reasonableness’ within which the courts may not set aside rates adopted by the Commission.” FPC v. Sunray DX Oil Co., 391 U.S. 9, 29, 88 S.Ct. 1526, 1537, 20 L.Ed.2d 388 (1968).

We think the Commission’s orders sufficiently articulated and explained the reasoning and factual basis of the conclusions reached; and considering the record as a whole we find that the orders were supported by substantial evidence.

The orders of the Commission are
Affirmed.

      . Midland, Texas (R. 1-1316) ; New Orleans (R. 317-95) ; Denver (R. 396-582) ; Pittsburgh (R. 583-681) ; Chicago (R. 682-874) ; Los Angeles (R. 875-988) ; New Xork (R. 989-1026) ; and Boston (R. 1027-1054). See Brief for Respondent Federal Power Commission, p. 11, n. 9.