author: BARTELS, District Judge:

text:
    DAIRYLEA COOPERATIVE, INC., Plaintiff-Appellant, v. Earl L. BUTZ, Secretary of the Department of Agriculture of the United States, Defendant-Appellee, Pennmarva Dairymen’s Cooperative Federation, Inc., Intervenor-Appellee.
    No. 1185, Docket 74-1160.
    United States Court of Appeals, Second Circuit.
    Argued June 17, 1974.
    Decided Oct. 1, 1974.

      Sydney C. Winton, New York City (Botein, Hays, Sklar & Herzberg, New York City, on the brief), Stanley M. Kolber and Mark J. Florsheim, New York City, of counsel), for appellant.
    V. Pamela Davis, Asst. U. S. Atty. (Paul J. Curran, U. S. Atty., S. D. N-. Y., Gerald A. Rosenberg Asst. U. S., Atty., of counsel), for appellee.
    Donald F. Copeland, Philadelphia, Pa. (Speese Kephart & Bongiovanni, Philadelphia, Pa., on the brief, Simpson Thacher & Bartlett, New York City, of counsel), for intervenor-appellee.
    Before SMITH and MANSFIELD, Circuit Judges, and BARTELS, District Judge.

       Of the Eastern District of New York, sitting by designation.

   BARTELS, District Judge:

Dairylea Cooperative, Inc. (“Dairy-lea”) is an association of dairy farmers organized pursuant to 7 U.S.C. § 291 (1970) which, in addition to representing producers, acts as a milk handler. Its members are producers located in New' York, New Jersey, Pennsylvania and elsewhere and subject generally to Federal Milk Marketing Order 2 (7 C. F.R. §§ 1002.1 et seq. (1974)). Penn-marva Dairymen’s Cooperative Federation, Inc. (“Pennmarva”), which was permitted to intervene as a defendant in support of the challenged provisions of Federal Milk Marketing Order 4, is a federation of three cooperatives, allegedly representing forty-five hundred dairy farmers subject to Order 4.

In May, June and October of 1972 Dairylea was required, in order to meet the increased demands of one of its customers in Flemington, New Jersey, to shift milk produced by its members in other areas previously regulated and priced under Order 2, to the Flemington, New Jersey handler, and the milk thus became regulated and priced under Order 4. As hereafter explained, there are important differences between Order' 2 and Order 4, though both were adopted by the Secretary of Agriculture (“Secretary”) to effectuate the purposes of the Agricultural Marketing Agreement Act of 1937 (“the Act”) focusing primarily upon the seasonal adjustment of milk production in accordance with the market’s needs. Dairylea claims that in shifting the milk of some of its member-producers from the Order 2 to the Order 4 area, they were penalized in a discriminatory manner by the imposition of an arbitrary low base for Class I sales for a period of from five to ten months resulting in a loss in excess of $262,500.

‘ Accordingly, Dairylea challenges the Order 4 base-excess plan generally upon the grounds that it (a) violates the Act because it provides for substantially reduced returns to newly entering producers for a minimum period of five months and a maximum period of sixteen months, and (b) is not a reasoned decision supported by substantial evidence in the record. The Secretary not only asserts that the challenged section is fully authorized by the Act and supported by substantial evidence, but contends further that the District Court erred in accepting jurisdiction over the subject matter without requiring Dairy-lea to exhaust its administrative remedy. Before reaching the merits, it is necessary to turn to the threshold question of jurisdiction.

Jurisdiction

We reluctantly conclude that Dairylea is a producer and as such was not required to exhaust any administrative remedy before invoking the jurisdiction of the District Court and indeed had no administrative remedy to exhaust. Considering the complicated nature of the provisions of the Act and the labyrinthi-an regulations issued thereunder, it would be most appropriate for Dairy-lea’s complaint to be considered first by the Secretary, who possesses the facilities and the expertise to review and interpret the Act and regulations herein involved. While a remand is most inviting and would permit a dismissal of the complaint without reaching the merits, we regretfully find no authority which would justify such action.

Though the Act affects producers, it was not designed to regulate producers but to regulate handlers only. Thus, while handlers may apply for judicial review of agricultural orders only after exhausting their administrative remedies, the Act is silent as to both judicial and administrative remedies for producers. 7 U.S.C. § 608c(15) (1970). The Supreme Court, however, has held that this silence does not bar producers from judicial remedies. Stark v. Wickard, 321 U.S. 288, 308-311, 64 S.Ct. 559, 88 L.Ed. 733 (1944); see Zuber v. Allen, 396 U.S. 168, 90 S.Ct. 314, 24 L.Ed.2d 345 (1969).

The Government argues that Dairylea not only is a producer but also a handler and therefore must exhaust its administrative remedies under 7 U.S.C. § 608c(15) (1970) before instituting this action. It is true that Dairylea has acted as a handler to the extent of payments made by it to the Order 4 Producer-Settlement Fund, but it is not acting as such in this case. In fact, the Secretary has treated cooperatives as either handlers or producers on the basis of the interests they represent in the action then pending. See In re Producers Creamery Co. of Springfield, 23 A.D. 515 (1964). In his testimony before Judge Carter, the Federal Milk Market Administrator for Order 4, Alexander St. Clair, admitted that a cooperative which is both a producer and a handler routinely may be treated as a producer. The concern of Dairylea in this action is not the money which it paid into the Producer-Settlement Fund, since its total payments will remain constant whatever the outcome of the case, but with the money collected on behalf of its producer-members as authorized by 7 U.S.C. § 610(b)(1) (1970) which will increase if the action succeeds. See Inter-State Milk Producers’ Cooperative, Inc. v. St. Clair, 314 F.Supp. 108, 111 (D.Md.1970). Thus, for purposes of this suit, Dairylea must be deemed a producer suing in its representative capacity and accordingly the jurisdiction asserted below was proper.

This is true even though the Secretary by letter from an Agricultural Department attorney abruptly offered to provide Dairylea with an administrative hearing two and one-half months after this action was commenced. In light of the regulations which restrict such remedies to handlers, 7 C.F.R. § 900.52 (1974), and the administrative decisions which have done the same, In re Producers Creamery Co. of Springfield, supra, such a letter does not satisfy the publication requirements of the Administrative Procedure Act, 5 U.S.C. § 552(a)(1) (1970). Upon this review it is our function to determine whether the Secretary’s order is within his granted power, issued pursuant to proper procedure, and adequately supported by substantial evidence and reason. Davis, Administrative Law, § 5.03, p. 299 (1958 ed.); Fairmont Foods Co. v. Hardin, 143 U.S.App.D.C. 40, 442 F.2d 762, 767 (1971); Lewes Dairy, Inc. v. Freeman, 401 F.2d 308, 317 (3d Cir. 1968), cert. denied 394 U.S. 929, 89 S.Ct. 1187, 22 L.Ed.2d 455 (1969).

Milk Regulation under the Act

The rationale and scheme of milk regulation under the Act have been succinctly and fully described by the Supreme Court in Zuber v. Allen, supra, and Lehigh Valley Coop. Farmers, Inc. v. United States, 370 U.S. 76, 82 S.Ct. 1168, 8 L.Ed.2d 345 (1962), and by many other authorities. In order to properly focus upon the issue presented by the challenge to the validity of Order 4, it is necessary, however, to repeat some of this background.

Milk consumption is, more or less, uniform throughout the year, while milk production, on the other hand, is not uniform. Production varies, depending upon the season of the year. Since fluid milk is perishable, it must be produced and marketed steadily throughout the year in order to meet consumer demands. Milk has two end uses, one as a consumer diet and the other as manufactured dairy products, such as butter and cheese. There is a premium price for consumer milk, referred to in the Order as Class I milk, while the excess quantity of milk above such Class I use of milk, described in the Order as Class II milk, carries with it a lower price. This produces a two-price structure for the same quality product depending upon its use. Related to the price structure of milk is the seasonal fluctuation of its production. In the spring months, referred to as the flush period, when the bovine population is highly fertile, there is an overproduction of milk; whereas in the fall and winter months, referred to as the short period, the production of milk is considerably lower. Therefore, to meet the relatively uniform consumption of fluid milk throughout the year, larger herds must be maintained than are required for milk consumption during the flush months. Before the Act, handlers took advantage of the milk surplus thus arising during the flush months by obtaining bargain prices for milk through competition among producers. The purpose of the Act was to eliminate this destructive competition by providing a uniform price throughout the year for producers regardless of the use to which their milk is put by the handler. (7 U.S.C. § 608c(5)(B) (Supp. Ill, 1973)).

The Act also provides for the promulgation by the Secretary of regulations called “marketing orders” which govern marketing of milk in various geographical areas of the United States ( 7 U.S.C. § 608c(1) (1970)); each of his 74 Marketing Orders covers a particular milk marketing area. The Secretary, through his regulations, has provided for a basic two-price structure which provides a higher value for fluid or Class I milk, and a lower value for the excess milk which is used in manufactured dairy products, Class II milk. To effectuate this structure and stabilize the market, regulations have been adopted which provide for two unique devices: (i) a uniform “blended” price fixed by the Market Administrator to be paid by handlers to each producer in the marketing area regardless of whether the handler disposes of milk at the high Class I price for fluid use, or at the lower Class II price for manufactured dairy products, and (ii) an equalization pool, called a Producer Settlement Fund, administered by the agent of the Secretary to maintain the blended price. Handlers make payments to the pool in the amount of the excess of their use value over the adjusted uniform blended price paid by them to their producers, and handlers make withdrawals from the pool in the amount that the use value of the milk they purchase is less than the adjusted blended price they pay to their producers. The Act specifies several limited exceptions to price, uniformity such as seasonal or annual adjustments which may be and are set forth in marketing orders, i. e., Base-Excess Plan (7 U.S.C. § 608e(5) (B) (d)), Louisville Plan (7 U.S.C. § 608c(5) (B)(e)), and Class I Base Plan (7 U.S.C. § 608c(5) (B) (f)).

Mechanics of Seasonal and Annual Adjustment Plans

Section 608c(5) (B) (d) of the Act provides that an adjustment may be made in the uniform price “to encourage seasonal adjustments in the production of milk through equitable apportionment of the total value of the milk purchased by any handler, or by all handlers, among producers on the basis of their market-ings of milk during a representative period of time . . . ” To encourage such seasonal adjustments, the Secretary promulgated the base-excess provisions of Order 4 (7 C.F.R. § 1004.90-95 (1974)) which are designed to stimulate producers to offset the usual seasonal fluctuations in milk production by adjusting their production to the market’s needs. The purpose of these provisions is to encourage fulfillment of the market's demands in the short season when milk is in short supply by providing for a lower Class II price to be paid for the excess of the producer’s milk above the amount he produced during the previous short season. The Order provides that the base-making period for Class I milk shall be from August through December. The average daily pounds of milk delivered by each producer to an Order 4 handler during this base period is calculated and assigned as Class I milk carrying the highest price, and the milk in excess of the base milk is assigned as Class II milk carrying a lower price. Thus, the more milk the producer can produce in the short season from August 1st to December 31st, the larger will be his base for which he will receive the higher Class I price. Under this Order a base would be established for each producer depending upon his deliveries in the preceding months of August through December provided that under no circumstances shall the base period be less than four months. Producers establish new bases each year effective for the twelve-month period from March 1st through February of the following year.

Not all Orders, however, utilize the base-excess adjustment found in Order 4. Order 2, for example, which regulates parts of New York and New Jersey, uses the so-called Louisville Plan to stimulate seasonal adjustments. Under this plan a fixed amount is deducted from prices otherwise payable to producers whose milk is delivered to the market during the flush months of overproduction and the amount so deducted is deposited in a fund which is used to add to the prices paid producers during the fall and winter months of undersup-ply. All producers delivering milk to the market during the fall and winter months receive the added increments irrespective of whether they have previously delivered to the market in the spring and summer months. 7 C.F.R. § 1002.71 (1974).

Some orders utilize no seasonal adjustment plan at all but rather an annual use adjustment plan called a Class I Base Plan. Dairylea claims, in fact, that the Order 4 plan is actually a Class I Base Plan (7 C.F.R. §§ 1125.90 et seq. (1974)). The Class I Base Plan is distinctly different from either the Base-Excess or the Louisville Plan. The Class I Base Plan is designed to control overproduction of milk and centers on the annual level of milk deliveries by each producer over one to three years, while Base-Excess and Louisville Plans are directed to control seasonality of production of a producer within one year. Under a Class I Base Plan bases generally are assigned to eligible producers on the effective date of the plan based upon the four months of lowest production of the producer. The plan provides for a three-year rolling average to determine the production history of each producer for use in assigning him a Class I base, and his three-year production history would be the average of his deliveries during his four months of lowest production in each of the three years.

The problem which has brought Dairylea before us is that under the Order 4 Base-Excess Plan possible prejudice arises when a producer from outside the Order begins to sell milk within the Order. Because of the necessity to build up a marketing base in the short season before he can obtain a Class I price, the new producer will not have a base until he has participated during the base-period months of August through December. For such new producers Order 4 provides an interim base for Class I milk as follows: January-February — 60%; March-June — 50%; July — 60%; August-November — 70%; December — 60%. This interim base continues until the new producer is able to establish under Order 4 a base from August through December. 7 C.F.R. § 1004.92(e) (1974).

Special consideration is given to Order 2 producers (New York, New Jersey), like Dairylea, who enter the Order 4 region no later than October 1st. Such producers are permitted to calculate their base on the total amount of milk delivered in both order regions throughout August-December provided that the new Order 4 producer was an Order 2 producer on August 1st of that year and continued such status in all or part of the two months of August and September “and who otherwise was an Order No. 4 producer . . . for all of the remaining August through December period.” 7 C.F.R. § 1004.92 (c) (1974). The result of this special consideration is to set a minimum three-month base-making period under Order 4 for certain Order 2 producers moving into Order 4 after August 1st but before October 1st, rather than the five-month period under Order 4 applicable to producers from other regions.

The new producer, of course, is compelled to utilize the above interim base percentages until March 1st of the year subsequent to the year in which he established an Order 4 base. Thus, an Order 2 producer who enters the Order 4 region November 1st must rely on the interim base not just until March 1st of the subsequent year but until March 1st of the second subsequent year, a period of sixteen months (maximum). Even the least amount of time for which the new producer from Order 2 region would be compelled to rely on the interim base would be five months (October-March). Dairylea made deliveries under Order 4 in May, June and October, 1972, and did not receive an historical base under Order 4 until March 1, 1973. In the meantime it received the interim percentage base averaging 60%, whereas it claims that predicated on its Order 2 production its historical base was 90%. It is these gaps during which interim percentages are applicable which are the subject of Dairylea’s complaint.

Propriety of Order 4

Dairylea does not contest the necessity for some sort of a plan to deal with seasonal production differentials. The basis of its challenge to Order 4 is the change from the former Order 4 base-excess plan, applicable only during the spring months, to a base-excess plan operating during the entire year coupled with allegedly arbitrarily assigned bases for new producers during the interim before acquiring an historical base. Dairylea alleges that this new Order 4 violates a number of specific provisions of the Act including (a) the requirement that producers receive uniform prices for their product, (b) the prohibition against trade barriers limiting the marketing of milk in any area, and (c) the prohibition against treating producers newly entering the market on a basis different from that accorded established producers except for a period not to exceed three months. The alleged violations will be discussed seriatim.

(a) The Uniform Price Requirement

Though the very foundation of the Act is to provide uniform prices to all producers in the marketing area subject only to specifically enumerated adjustments (7 U.S.C. § 608c(5)(B)), the Act does not reach the retail sale of milk. Dairylea cites Zuber v. Allen, supra, and Brannan v. Stark, 342 U.S. 451, 72 S.Ct. 433, 96 L.Ed. 497 (1952), as authorities in support of its claim that the price uniformity requirement has been violated by Order 4. Neither of these cases is in point. Zuber, supra, dealt only with a non-cost related geographical differential, while Brannan dealt with a compensatory differential charged to producers who were not cooperative members. Neither differential, the Court found, was authorized by the Act. Here, however, the base-excess plan is specifically enumerated as a permissible adjustment, 7 U.S.C. § 608c (5)(B)(d), as is the Louisville Plan in subsection (e) and the Class I Base Plan in subsection (f). In fact, the Court noted in Zuber that “[t]he foundation of the statutory scheme is to provide uniform prices to all producers in the marketing area, subject only to specifically enumerated adjustments.” 396 U.S. at 179, 90 S.Ct. at 321 (emphasis added). As the base-excess provision complained of is one of these specifically enumerated adjustments, it is a permit-ted exception to the rule of uniformity and does not constitute a violation of the Act. Vaughn-Griffin Packing Co. v. Freeman, 296 F.Supp. 458 (M.D.Fla.1968), affirmed, 423 F.2d 1094 (5th Cir. 1970), is also cited by appellant for the proposition that the provisions of Order 4 are unconstitutionally discriminatory in violation of the uniform price requirement and the due process mandate of equal protection of the law. Since it involves entirely different facts relative to a different product, and likewise refers to dissimilar provisions of the Act, that case is inapposite.

(b) Trade Barrier Limitation of § 608c (5)(G)

Dairylea, citing Lehigh Valley Cooperative Farmers, Inc. v. United States, supra, alleges that the base-excess plan of Order 4 violates 7 U.S.C. § 608c(5)(G) (1970) which specifically states that no marketing agreement or order “shall prohibit or in any manner limit . . . the marketing in that area of any milk or product thereof produced in any production area in the United States.” Order 4 does not prohibit or limit the marketing of milk but simply provides a ceiling for a temporary period on the amount of milk for which a newly entering producer may receive a Class I price. It is not a trade barrier and does not interfere substantially with free acces to the market. This subsection was exhaustively reviewed in Lehigh Valley Coop., supra, by the Supreme Court. There the Secretary had included in Order 2 a provision for permanent compensatory payments on non-pool milk sold in the marketing area by outside order handlers. A handler who brought outside milk into the area and sold it for fluid use would have to pay the pool producers through the Producer Settlement Fund an amount equal to the difference between the minimum prices for the highest and lowest use classification prevaling in the area. This provision had the consequence of requiring non-pool milk to subsidize pool milk which was thus insulated from competition. Therefore, the Order set up an economic trade barrier specifically prohibited by 7 U.S.C. § 608e(5)(G). This decision does not bar all adjustments as illegal trade barriers. See Sunny Hill Farms Dairy Co., Inc. v. Hardin, 446 F.2d 1124, 1131 (8th Cir. 1971), cert. denied, 405 U.S. 917, 92 S.Ct. 940, 30 L.Ed.2d 786 (1972); Fairmont Foods Co. v. Hardin, supra, 143 U.S.App.D.C. 40, 442 F.2d at 771-772. In fact, Congress has authorized certain limitations on milk distribution in 7 U. S.C. §§ 608c(5) (B) and 608c(5)(D) (1970), (Supp. Ill, 1973). Moreover, not only does the base-excess plan with which we are dealing provide for no compensatory payments, but unlike the Lehigh Valley plan it is specifically permitted by statute, 7 U.S.C. § 608c(5) (B) (d). Thus, as a temporary non-compensatory plan specifically permitted by law and requiring no substantial dislocation of new producers, the base-excess plan of Order 4 does not violate the trade barrier strictures of either the Act or the Supreme Court decisions.

(c) Lowest Use Classification Limitation of § 608c(5)(D) and Three-Month Limitation of § 608c(5)(B) (f).

Section 608c(5)(D) of the Act states that the marketing order shall provide that payments for milk purchased from producers entering the area shall be made for a period of approximately three months “at the price for the lowest use classification specified in such order, subject to the adjustments specified in paragraph (B) of this subsection.” Dairylea asserts that because new producers may receive less than their historical bases for a period of from five to sixteen months, Order 4 violates •the time limitation of this section of the Act. This is a non-sequitur. Section 608c(5) (D) specifically authorizes as an exception to this provision adjustments under § 608c(5)(B) which in turn authorizes base-excess plans such as found in Order 4 (§ 608c(5) (B) (d)). In addition, Order 4 does not provide a base for new producers consisting of “the lowest use classification specified in such order” for any period of time.

Clause (v) of § 608c(5) (B) (f) requires that newly entering producers receive an historical base within 90 days. It will be recalled that § 608c(5) (B) (d) referring to seasonal adjustments authorizes a base for a representative period of time” which need not be limited to one year. The base-excess plan of Order 4 was adopted pursuant to § 608c(5) (B) (d) and not pursuant to § 608c(5) (B) (f). Dairylea claims that the 90-day limitation on non-historical bases under (f) is nevertheless applicable to Order 4. To support this contention, Dairylea quotes from the Congressional floor debates on the Agriculture Act of 1970. We cannot derive from these quotations any Congressional intent to incorporate § 608c (5)(B)(f) (v) into § 608c(5) (B) (d). Section 608c(5) (B) (d) definitely includes no such three-month limitation and we do not believe that Congress intended such limitation to be read in sub silentio. Even though the Act may be interpreted differently by one or two members of Congress, this is not a sufficient indicia of Congressional intent. For the same reasons clause (iii) of § 608c(5) (B) (f), which we believe not to be applicable in any event, cannot be read into the base-excess adjustment, § 608c(5)(B)(d).

In a final attempt to bring the Order 4 plan under § 608e(5) (B) (f) (v), Dairylea maintains that Order 4 is in fact a Class I plan and not a base-excess plan and therefore is subject to the three-month limitation. The predicate for this claim is the fact that the Order 4 plan is effective for a twelve-month period. This fact, however, does not remove it from the category of base-excess plans which, as we have previously stated, are seasonal plans as contrasted with the Class I plan which is an annual use plan covering a representative period of from one to three years. There is no inherent reason why a twelve-month period cannot be employed to adjust seasonal fluctuations. We are convinced from the record that Order 4 is a base-excess plan and are supported in this conclusion by a report of the Agriculture Committee of the House of Representatives (No. 93-337) filed on June 27, 1973, more than twelve months after the Order 4 base-excess plan became effective, which states that Class I base plans were adopted “[i]n only two orders, those for the Puget Sound, Washington, and Atlanta, Georgia, marketing areas.” Again we find no merit in Dairylea’s argument.

Reasonableness of the Order k Base-Excess Plan

Base-excess plans, such as the Order 4 plan, are clearly authorized by the Act. Included as an integral part of this Order, howver, are provisions designed to eliminate disruptive shifting of milk from outside farmers into the marketing area. These provisions are the main target of appellant’s attack. Dairylea contends that the twelve-month base-excess plan is not only unnecessary to prevent disruptive inter-order shiftings between Order 2 and Order 4, but also is fatally defective because not designed to adjust seasonal fluctuations. On the contrary, it argues that the abuses of shift-ings could have been obviated by the adoption of the Louisville Plan in Order 4 so that it would be consistent with Order 2 in controlling the delivery of outside milk during the flush period. It adds that there is no evidence to support the reasonableness of Order 4.

The two milk Orders 2 and 4 govern contiguous areas and were adopted to fit together in order to insure an adequate milk supply to both markets without disruption. Protection against shiftings was necessary in both Orders. Obviously, it would be desirable for an Order 4 producer to market milk under Order 2 in the fall during the Order 2 pay-out period since the added price would be paid to him whether or not he participated in the preceding spring months when sums were deducted. In doing so now, however, he would lose his Order 4 base period. Similarly, it would be desirable for an Order 2 producer to market milk under Order 4 in the spring months during the Order 2 pay-in period and thus escape deductions from prices otherwise payable to such a producer. To be successful now, however, he would have to satisfy the Order 4 requirement of a base built up under Order 4 in the fall.

The present limitations on the transfer of producers from Order 2 to Order 4 area were necessitated by prior abuses. As stated by the Secretary: “These numerous abuses of the base plan, which in many situtions were also abuses of the Louisville plan under either Order 1 or 2, have resulted in considerable discontent on the part of many producers in the Delaware Valley market.” 35 F.R. 7936. The Secretary has acknowledged that both the base-excess plan and the Louisville seasonal adjustment plan could be effective in promoting a desirable seasonality of production in the market (35 F.R. at 7936). The Order 4 plan was adopted only after hearings conducted under the auspices of the Secretary, at which both plans as well as the effects of shifting from one market to another were duly considered. Thereafter a vote was taken by the producers pursuant to 7 U.S.C. § 608c(19) (Supp. III, 1973), at which a substantial majority of the producers approved Order 4. The Secretary then reviewed the proposal and set forth the reasons underlying his decision to utilize the twelve-month base-excess plan. 35 F.R. 7924, 7936-38. While the approval of the producers was not conclusive, the Secretary ws entitled to weigh the desires of the local producers in reaching his decision. It was entirely proper for him to choose the plan approved by the majority of Order 4 producers, provided the plan was statutorily authorized, reasonable and supported by adequate evidence. 7 U.S.C. §§ 608c(5) (B) (i), 608c(5) (I), 608c(8), 608c(9), 608c(19) (Supp. Ill, 1973). The record discloses that these requirements were satisfied. Universal Camera Corp. v. National Labor Relations Board, 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456 (1951); United States v. Mills, 315 F.2d 828, 834 (4th Cir. 1963), cert. denied, 375 U.S. 819, 84 S.Ct. 57, 11 L.Ed.2d 54 (1963).

To provide new producers with an historical base predicated upon their deliveries outside of the market, as suggested by Dairylea, would provide no incentive to increase Order 4 production during the short season. Under the current plan new producers have an incentive to enter the market during the short season. If given their Order 2 historical base as proposed by Dairylea, it would be just as advantageous for producers to enter the market during the flush season when extra milk is not needed. The twelve-month plan levels off milk production throughout the year by rewarding increased production during the short season and discouraging overproduction during the remainder of the year. The statute authorizes the Secretary to do just this. 7 U.S.C. § 602 (1970). At the same time the plan requires outside producers to rely upon interim percentages for a temporary period, which could be as short as five months, before they receive the same historical base as those who have already served the market during the period of its greatest need.

There can be little doubt that some obstacle should be imposed upon the sporadic shifting of outside producers into Order 4 when it is favorable and leaving it when it is unfavorable. The question raised is whether that obstacle is reasonable under the circumstances. In his finding the Secretry stated:

“It is concluded that the latter percentages will provide reasonable treatment for new producers and that no further provision is needed for the purpose of providing interim bases. Bases computed on these percentages would not appear to be so high as to encourage new producers to come on the market at a time when their milk is not needed for Class I purposes. At the same time, they would not be' so low as to discourage any producer who intends to become permanently associated with the market.” 35 F.R. at 7937.

As we stated above, special consideration is given to Order 2 producers who enter the Order 4 market. George W. O’Brien, an economist for Dairylea, testified that on a percentage basis a denial of an historical base to the new producer results in a 10 % deduction in his income. But this, of course, is temporary for the months before the new producer acquires his base and varies depending upon the date of entry. Dairylea adds that these interim percentages amount to penalizing “outsiders” coming into the market for the benefit of “insiders.” Dr. Paul E. Hand, an economist called by Penn-marva, testified that if the base-excess provisions of Order 4 were eliminated, the effect on the market would be “catastrophic.” If the producers intend to be permanently associated with the market, -the temporary burden is relatively slight and can be soon amortized in the future with the passage of time and at the same time it will offer a protection to them as permanent producers against temporary shiftings. If, on the other hand, such producers do not intend to remain associated with the market, the temporary percentages are necessary to protect the inside producers and to prevent disorderly market conditions. We believe the Secretary’s percentage provisions for interim bases to new producers are adequately supported by the record and bear a rational relationship to the proper purposes of a base-excess plan and are reasonable.

The fact that Dairylea might have been better served by a Louisville plan is not sufficient reason to invalidate the plan now before us. Lewes Dairy, Inc. v. Freeman, supra, 401 F.2d at 319; see In re Lehigh Valley Cooperative Farmers, AMA Docket # M2-31 (Jan. 29, 1971) at 33. In so complicated an area as milk regulation, a perfect plan which would be equally agreeable to old and new, temporary and permanent producers inside and outside the marketing area is virtually impossible. Finally, it is relevant to note that there is nothing new about a twelve-month base-excess plan. In fact, such a plan similar to Order 4 with an average of approximately 60% interim bases for new entries has for over a decade ending in 1967 been successfully operated under the Puget Sound marketing orders of the Secretary.

For reasons above stated, we find no merit in Dairylea’s claims and accordingly the Order of the District Court is affirmed.

      . While the term “producer” is not defined in the Agricultural Marketing Agreement Act of 1937, 7 U.S.C. § 601 et seq., it is defined at 7 C.F.R. § 1004.11 (1974). The term “handler” is defined generally in the statute at 7 U.S.C. § 608c (1) and more speeifically in the regulations at 7 C.F.R. § 1004.9 (1974).

      . 7 U.S.C. §§ 601-624 (1970), as amended (Supp. Ill, 1973).

      . “The milk problem is so vast that fully to comprehend it would require an almost universal knowledge ranging from geology, biology, chemistry and medicine to the niceties of the legislative, judicial and administrative processes of government. It affects an industry immense in scope, for dairying is said to be the largest single branch of agriculture in this country with the exception of that of raising livestock for slaughter, the annual money value of dairy products running to billions of dollars.” Queensboro Farms Products v. Wickard, 137 F.2d 969, 975 (2d Cir. 1943).

      . “ . . . No order issued under this chapter shall be applicable to any producer in his capacity as a producer.” 7 U.S.C. § 608e(13) (B) (1970). See 7 U.S.C. § 608c(1) (1970).

      . See also 7 C.F.R. §§ 1004.9, 1004.12(b) (1974) which suggest that a cooperative may function as both a producer and a handler.

      . Such a policy also seems to accord with Congressional intent since the Act itself recognizes that an individual or entity may fit into more than one category. Thus, by 7 U.S.C. § 608e(13) (B) (1970) producers are exempted from regulation only in their capacities as producers. When a producer acts as a handler he is not so exempted. See also 7 U.S.C. § 608c(5) (C) (1970).

      . In Rasmussen v. Hardin, 461 F.2d 595 (9th Cir. 1972), which the Government cites, the petitioner was a producer-handler in Order 31, an entity different from either a producer or a handler, and the action was dismissed for failure to exhaust the administrative remedies which the court deemed open to producers-handlers. Stark v. Wickard, 321 U.S. 288, 64 S.Ct. 559, 88 L.Ed. 733 (1944), was held to apply only to producers, and in Order 31, as in Order 4, a producer-handler is deemed a handler. 7 C.F.R. §§ 1131.10, 1004.10 (1974).

      . Tlie Government cites as a requirement for the exhaustion of administrative remedies In re Lehigh Valley, AMA Docket # M2-31 (Jan. 29, 1971), a non-final and unreported decision by a hearing examiner in the Department of Agriculture. There a cooperative was permitted to challenge administratively a seasonal adjustment plan. Such decision does not satisfy the publication requirements of the Administrative Procedure Act and, in fact, the jurisdictional issue was never discussed.

      . See Zuber v. Allen, supra, 396 U.S. at 172 fn. 2, 90 S.Ct. 314.

      . “The fluid milk industry is affected by factors of instability peculiar to itself which call for special methods of control. Under the best practicable adjustment of supply to .demand the industry must carry a surplus of about 20 per cent., because milk, an essential food, must be available as demanded by consumers every day in the year, and demand and supply vary from day to day and according to the season; but milk is perishable and cannot be stored. Close adjustment of supply to demand is hindered by several factors difficult to control.” Nebbia v. New York, 291 U.S. 502, 517, 54 S.Ct. 505, 507, 78 L.Ed. 940 (1933).

      . The Administrator sets the Class I and Class II use values and such values are not the prices charged the consumer by the handler, which are generally higher and unregulated. 7 U.S.C. § 608c(13) (A) (1970).

      . For others see 7 U.S.C. § 608c(5) (B) (a)-(c).

      . Base Plans in U.S. Milk Markets: Development, Status and Potential, June 1972, Marketing Research Report No. 957, U.S. Department of Agriculture’s Economic Research Services, at page 5.

      . See 37 F.R. 26019 et seq. (Dec. 7, 1972).

      . Under the prior Order 4 base-excess plan, which Dairylea apparently approved, the base-making period was July through December but the base and excess prices were applicable only during the months of March through June, 7 C.F.R. §§ 1004.63, 1004.64 (1970). Under the new .Order 4, of course, base and excess prices apply throughout the year,

      . It is interesting to note that Dairylea has failed to show that an historical base predicated upon the lowest use classification mentioned in subsection (D) of the Act or based upon the past four months of the lowest production of the producer under a Class I Base Plan, like the Puget Sound plan, would improve its position. It does not follow that such plans would provide a new producer during the entry period with larger returns than now provided by the base-excess plan of Order 4.

      . See statements of Representative Zwach (116 Cong.Rec. 27144, August 4, 1970) and Senator Nelson (116 Cong.Rec. 31808, Sept. 15, 1970).

      . “Although the underlying philosophy and objectives differ, base-excess seasonal pricing plans involve some of the same principles and logic as Class I base plans. Under base-excess seasonal j)lans, bases are established each year and entry to the market is relatively open. The base-forming period is during the short-production months; the base-paying period is generally in the flush months. Blend pricing occurs in months other than during the base-paying period. Under these plans, the producer who provides a certain quantity of milk in the fall months when supplies are short establishes a claim or ‘market right’ to the fluid, higher priced (Class I) portion of the market during months when a surplus exists. (Fluid milk used for Class I purposes is higher priced than that used in manufacturing.)
      “In contract, Class I base plans (relatively closed or semiclosed) involved ‘market rights’ of producers for a longer period of time. Concern centers more on the annual level of milk deliveries than on seasonality of production within the year. These plans operate on the principle that a producer who supplies a market during some designated I>eriod of time — say a specific year or i>eriod of years — establishes a claim or ‘market right’ to the higher xuáce fluid market during subsequent years.” U.S. Dept, of Agriculture Report # 957, Base Plans in U.S. Milk Markets, 4, 5 (1972).

      “ 3 Four Federal order markets — Southern Michigan, Georgia, Washington-Oregon, and Middle Atlantic — had seasonal base-excess plans with 12-month base-paying periods as of January 1972.”

      . 1973 U.S.Code Cong, and Admin.News at p. 1762.

      . “Both the base-excess plan and the Louisville seasonal incentive pricing plan obviously can be effective in promoting a desirable seasonality of production in any particular market. Although both plans have wide acceptance, the plan provided in any particular market should be one which has the approval of a substantial majority of producers in such market. The cooperatives representing such a majority of the producers in the markets here being merged support a base-excess plan.” 35 F.R. 7924, 7936.

      . U.S. Dept, of Agriculture Report #957, Base Plans in U.S. Milk Markets, 17, 21, and 7 C.F.R. § 1125.60 (1964).


source: Caselaw Access Project

author: PHILLIPS, Chief Judge.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Joe LEWIS and Tommy Allen Combs, Defendants-Appellants.
    No. 74-1242.
    United States Court of Appeals, Sixth Circuit.
    Argued June 19, 1974.
    Decided Oct. 8, 1974.

      Dan Jack Combs, Combs & Combs, Pikeville, Ky., on brief, for defendants-appellants.
    Eugene E. Siler, U. S. Atty., John M. Compton, Eldon L. Webb, Asst. U. S. Attys., Lexington, Ky., on brief, for plaintiff-appellee.
    Before PHILLIPS, Chief Judge, and WEICK and ENGEL, Circuit Judges.
   PHILLIPS, Chief Judge.

Joe Lewis and Tommy Allen Combs appeal from a jury conviction for transporting stolen explosive materials in violation of 18 U.S.C. § 842(h). We affirm.

I. Facts

About midnight on Sunday, September 3, 1972, two Kentucky state policemen were in a rural area of Perry County investigating a “drunk complaint of a pickup truck that was supposed to be red.” A red Chevrolet pickup truck with a white homemade camper on it soon passed their police cruiser. The officers further noticed that the pickup had defective tail lights and a loud muffler.

The officer driving the police cruiser turned on his blue rotating beacon and the pickup pulled off to the side of the road and stopped. The police officers parked approximately six to eight feet directly behind the pickup and apparently left their cruiser’s headlights on as they walked toward the pickup. At the request of the officers the driver of the pickup, the appellant Lewis, displayed his driver’s license. One of the officers testified that he gave Lewis a traffic citation for defective tail lights and muffler, presumably in violation of K.R.S. §§ 189.050 and 189.140 respectively. The appellant Combs was a passenger in the pickup.

As the officers initially approached the pickup from the rear, they saw through the window in the rear of the camper some boxes labeled “danger electrical blasting caps.” After ordering the appellants to get out of the pickup, the officers inquired as to what the appellants were hauling. The appellants disclaimed any knowledge of the contents of the camper, saying that the pickup was owned by another person. Appellant Lewis was then asked to open the rear door of the camper. He refused and told the officers that if they wanted it opened to do it themselves.

The officers then searched the appellants, advised them of their rights and placed them in the police cruiser. While one officer remained in the cruiser with the arrestees, another searched the pickup which appeared to be heavily loaded. He found a large quantity of electrical dynamite caps in the rear and two rifles, one tire tool and a pair of bolt cutters in the cab. It was later determined that the boxes found in the rear of the pickup contained over 1,800 blasting caps, which were valued at approximately $2,000. The next morning the officers discovered that a large quantity of blasting caps were missing from the magazine of a construction company in a nearby county.

Prior to the trial in the District Court, the appellants were tried in state court on two separate charges. They were found not guilty in Perry Circuit Court on the charge of possession of burglary tools. However, they were found guilty in Leslie Circuit Court of the offense of breaking and entering the construction company’s magazine and carrying away therefrom electrical blasting caps.

II. Judicial Administration Issues

On appeal from their convieton in the District Court, appellants raise numerous assignments of error. Of primary importance are three alleged errors of judicial administration and procedure.

The genesis of each of these three alleged errors is appellants’ claim that they were moved “from pillow to post” within the Eastern District of Kentucky with no regard to their convenience or the convenience of witnesses. The following table presents a summary of relevant actions taken in this case, the date, and the location within the district at which the action was taken.

Action
Date
Location
1. Indictment returned
November 8, 1972
Jackson
2. Arraignment
November 15, 1972
Pikeville
3. Action transferred from Jackson docket to Pikeville docket
December 15, 1972
4. Hearing on suppression motion
February 15, 1973
London
5. Further hearing on suppression motion
May 14, 1973
Pikeville
6. Action transferred from Pikeville docket to Lexington docket
August 1„ 1973
7. Jury trial resulting in hung jury; Action subsequently reassigned to Pikeville docket
Sept. 10-12, 1973
Lexington
8. Jury trial resulting in conviction
Oct. 29-31, 1973
Pikeville

(A) Appellants contend that the District Court violated the following venue requirement of Fed.R.Crim.P. 18: “The court shall fix the place of trial within the district with due regard to the convenience of the defendant and the witnesses.” Prior to the beginning of their first trial in Lexington, on September 10, 1973, appellants moved to dismiss the indictment or, in the alternative, for an order “staying all proceedings against them in any division of this Court except the Jackson Division, and staying any trial by any jury other than a jury drawn from the counties comprising the Jackspn Division of this Court.” Appellants maintain throughout their brief and oral argument that Jackson is a division of the Eastern District of Kentucky. As more fully discussed in 11(B) below, this contention is erroneous. 28 U.S.C. § 97(a).

Although the District Court later overruled the motion to dismiss the indictment, it did not rule on the alternative motion to stay all proceedings except those at Jackson. In support of their alternative motion, appellants stated that they were residents of Perry County, that the alleged offense occurred in Perry County, that practically all of the witnesses resided in Perry County, and that Perry County was some 30 miles from Jackson and some 120 miles from Lexington. Pikeville, the location of the second trial, is said to be some 80 miles from Jackson.

Appellants rely on Dupoint v. United States, 388 F.2d 39 (5th Cir. 1967), in which a conviction was reversed where the prosecution of a federal crime was transferred 42 miles farther from the scene of the alleged offense for the convenience of the prosecution, and not for the convenience of the defendant or witnesses. The Government asserts that Dupoint is distinguishable on the ground that the Middle District of Georgia, where the Dupoint case arose, is divided by statute into several divisions, 28 U.S. C. § 90(b), unlike the Eastern District of Kentucky where there are no divisions. 28 U.S.C. § 97(a).

We regard this as a relatively close issue and do not believe that the distinction between this case and Du-point cited by the Government is dispos-itive. The existence or nonexistence of division lines within a federal judicial district cannot be held to determine a question of whether venue properly exists at a particular location within the district. Indeed, a 1966 amendment of Fed.R.Crim.P. 18 deleted a provision reading, “but if the district consists of two or more divisions the trial shall be had in a division in which the offense was committed.” In eliminating the requirement of division venue, the 1966 amendment recognized that the presence of venue at a particular place is controlled by numerous factors, e. g., proximity of defendant’s residence, proximity of witnesses and counsel, docket conditions which bear on whether a defendant receives a speedy trial, and proximity of records and documents, and should not be hemmed in by artificial boundary lines drawn by Congress.

Rule 18 merely states the traditional rule of “forum non conveniens” and vests discretion in the District Court to determine the proper place of trial. Houston v. United States, 419 F.2d 30, 33 (5th Cir. 1969). Trial judges traditionally have been held to have wide discretion in disposing of change of venue motions. Platt v. Minnesota Mining & Mfg. Co., 376 U.S. 240, 245, 84 S.Ct. 769, 11 L.Ed.2d 674 (1964); United States v. Projansky, 465 F.2d 123, 139 (2d Cir.), cert. den., 409 U.S. 1006, 93 S.Ct. 432, 34 L.Ed.2d 299 (1972); Wagner v. United States, 416 F.2d 558, 561-562 (9th Cir. 1969), cert. den., 397 U.S. 923, 1015, 90 S.Ct. 915, 25 L.Ed.2d 104 (1970); United States v. Aronson, 319 F.2d 48, 52 (2d Cir.), cert. den., 375 U. S. 920, 84 S.Ct. 264, 11 L.Ed.2d 164 (1963). However, that discretion cannot be used as an excuse not to give “due regard to the convenience of the defendant and the witnesses” in fixing the place of trial. Fed.R.Crim.P. 18.

Within the circumstances of this case, we hold that the District Court did not violate appellants’ rights secured by Rule 18 in trying appellants at Lexington and Pikeville instead of at Jackson. The assignment of cases within a district is a matter within the exclusive domain of the local district judges. Transfer of a particular case from one place within the district to another place within the district is a matter for the local district judges to decide, and the assent of a defendant to such a transfer is not required.

Other circuits have reached results consistent with our decision of the Rule 18 issue. For example, in United States v. Clark, 416 F.2d 63, 64 (1969), the Ninth Circuit held that after one federal trial ended in a mistrial and a second trial was held 90 miles away at another location in a district not divided into divisions, the change in place of trial was not an impermissible change in venue. The Second Circuit in United States v. Fernandez, 480 F.2d 726, 730 (1973), relying on the 1966 amendment to Rule 18 which eliminated division venue, stated that it follows a, fortiori that when a district' is not separated into divisions that trial at any place within the district is allowable under the Sixth Amendment and Rule 18. See also, United States v. Wilson, 368 F.2d 842, 843 (1966), in which the Second Circuit held that because the District of Connecticut was not divided into divisions no order of transfer was required for trial at a location within the district different from the location at which the defendant was arraigned.

(B) Appellants next contend that the District Court’s transfer of this case to Pikeville violated the following provision of 18 U.S.C. § 3240:

“Whenever any new district or division is established, or any county or territory is transferred from one district or division to another district or division, prosecutions for' offenses committed within such district, division, county, or territory prior to such transfer, shall be commenced and proceeded with the same as if such new district or division had not been created, or such county or territory had not been transferred. ...”

In an order, entitled “In The Matter of Reassignment of Counties to The Cat-lettsburg, Lexington and Pikeville Jury Divisions,” the three District Judges of the Eastern District of Kentucky on December 15, 1972, transferred all pending cases on the Jackson docket which arose in Perry County to the Pikeville docket. The judges indicated that transfer of these cases, then 17 in number, would provide for more expeditious disposition of the business of the District Court.

Appellants’ contention that § 3240 required that they be tried at Jackson is meritless. Their argument is premised on the mistaken belief that Jackson is a division of the Eastern District of Kentucky. 28 U.S.C. § 97 (a) merely names Jackson as one of eight locations in the Eastern District for the holding of court. The statute does not create divisions in the Eastern District of Kentucky as they exist in some other federal judicial districts. Thus when the District Court on December 15, 1972, transferred all pending cases on the Jackson docket that arose in Perry County to the Pikeville docket (including the instant one), it did not transfer the cases from one division to another division within the meaning of § 3240.

(C) Appellants also contend that their trials at Lexington and Pike-ville by panels of jurors selected at large from the Eastern District of Kentucky violated the Jury Selection and Service Act of 1968, 28 U.S.C. § 1861 et seq. The gravamen of their claim here is that the selection of jurors from the district at large contravenes provisions in the Jury Selection Plan of the Eastern District of Kentucky (the Plan), which was promulgated pursuant to 28 U.S.C. § 1863.

The Jury Selection Plan of the Eastern District of Kentucky was drafted by the judges of that court. It was approved as of September 23, 1968, by the Reviewing Panel provided for in 28 U. S.C. § 1863(a), which panel included the members of the Judicial Council of the Sixth Circuit.

Section Seven is the primary provision in the Plan challenged by appellants. It provides as follows:

“On individual request, any judge of the court may excuse a juror on finding that such service would entail undue hardship or extreme inconvenience if the juror resides at a distance more than 70 miles from the place of holding court.”

This provision of the Plan is entirely consistent with 28 U.S.C. § 1863(b)(7) which directs the District Court to establish a plan which would “fix the distance, either in miles or in travel time, from each place of holding court beyond which prospective jurors residing shall, on individual request therefor, be éx-cused from jury service. . . . ” (Emphasis supplied.) There is nothing in the record of this case to indicate that any of the jurors selected at large from the district who heard this case requested to be excused from jury duty or that any such request was denied.

Further, appellants’ claim that Section Seven of the Jury Selection Plan violates the 28 U.S.C. § 1861 declaration of policy that juries be selected at random from a fair cross section “of the community in the district or division wherein the court convenes” is equally meritless. A paragraph in Section Five of the Plan provides as follows: “Jurors from any part of the district may be required to serve at any of the places where court is held.” Thus the Plan specifically sanctions the practice of selecting jurors from the district at large.

The present ease, by an order dated August 1, 1973, was transferred from the Pikeville docket to the Lexington docket to be tried by a jury panel drawn from the district at large. After noting the large number of cases pending on the Pikeville docket and the defendants’ interest in a speedy trial, the District Court in that order stated: “[T]he Court’s schedule is such that a more orderly and efficient disposition of these cases could be experienced at a central location and with a jury panel drawn from the district at large.”

Accordingly, we hold that the provision in Section Five of the Jury Selection Plan permitting jurors to be drawn from the district at large does not violate any of appellants’ rights and is compatible with the 28 U.S.C. § 1861 requirement that the jury be drawn from “the community in the district or division wherein the court convenes.” The Section Five provision does not in practice operate in a vacuum. It operates in conjunction with Section Seven of the Plan which under certain circumstances permits prospective jurors to be excused if they reside more than 70 miles from the place of holding court.

III. Criminal Procedure Issues

In addition to the judicial administration issues, several issues of criminal procedure are raised by appellants. We find these contentions also to be without merit.

(A) Appellants assert that the war-rantless search of their truck by the Kentucky state police officers and the seizure of the blasting caps and other items violated their Fourth Amendment rights. The Government contends that once the police officers in the course of issuing a traffic citation spotted the boxes labeled “danger electrical blasting caps” (or language substantially to that effect) in the camper, then justification existed for the warrantless search and seizure. For the reasons set forth below, we agree with the Government’s position under the circumstances of this ease.

(1) The Fourth Amendment provides: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

“The Fourth Amendment does not denounce all searches or seizures, but only such as are unreasonable.” Carroll v. United States, 267 U.S. 132, 147, 45 S.Ct. 280, 283, 69 L.Ed. 543 (1925). See also Terry v. Ohio, 392 U.S. 1, 20-27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968).

It is universally accepted that “the police must, .whenever practicable, obtain advance judicial approval of searches and seizures through the warrant procedure.” Terry v. Ohio, supra, 392 U.S. at 20, 88 S.Ct. at 1879. Searches conducted without a warrant are per se unreasonable under the Fourth Amendment, except in “a few specifically established and well-delineated exceptions.” Katz v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 514, 19 L.Ed.2d 576 (1967). Among the exceptions arguably relevant to this case are searches for evidence in plain view of a police officer justified in being where he is, Coolidge v. New Hampshire, 403 U.S. 443, 465-472, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Harris v. United States, 390 U.S. 234, 236, 88 S.Ct. 992, 19 L.Ed.2d 1067 (1968), searches in certain exigent circumstances, Warden v. Hayden, 387 U.S. 294, 298-299, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967); McDonald v. United States, 335 U.S. 451, 454-455, 69 S.Ct. 191, 93 L.Ed. 153 (1948), searches of a moving vehicle, Carroll v. United States, supra, and searches incident to a lawful arrest, Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); Agnello v. United States, 269 U.S. 20, 46 S.Ct. 4, 70 L.Ed. 145 (1925). In a recent case, United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 477, 38 L.Ed.2d 427 (1973), the Supreme Court held that “in the case of a lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a ‘reasonable’ search under that Amendment.”

No amount of probable cause can justify a warrantless search or seizure absent one of the exceptions. Coolidge v. New Hampshire, supra, 403 U.S. at 468, 91 S.Ct. 2022. Similarly, use of each of the exceptions to justify a warrantless search hinges on the presence of probable cause to search. See, e. g., Chambers v. Maroney, 399 U.S. 42, 48, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Carroll v. United States, supra, 267 U.S. at 155-159, 45 S.Ct. 280; and the Court’s statement in Almeida-Sanehez v. United States, 413 U.S. 266, 269, 93 S.Ct. 2535, 2537, 37 L.Ed.2d 596 (1973), “Automobile or no automobile, there must be probable cause for the search.”

Probable cause exists where “the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed. Carroll v. United States, supra, 267 U.S. at 162, 45 S.Ct. at 288. Probable cause means “more than bare suspicion.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 1310, 93 L.Ed. 1879 (1949). it means “a reasonable ground for belief of guilt.” Id.

(2) In the present ease, the state police officers aided by the beam from their cruiser’s headlights observed the marked boxes through the window in the camper as they approached the pickup. If this observation constituted a search, it clearly was a reasonable one within the circumstances of this case. Terry v. Ohio, supra, 392 U.S. at 21-22, 45 S.Ct. 280; United States v. Booker, 461 F.2d 990, 992, 993 (6th Cir. 1972) (majority and concurring opinions). Nothing in the Fourth Amendment could be held to require police officers stopping a vehicle in the middle of the night in order to issue a traffic citation to turn off their cruiser’s headlights before approaching the stopped vehicle. United States v. Robinson, 414 U.S. 218, 234, n. 5, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), emphasizes the danger of assaults on police officers in the course of making arrests for such traffic offenses.

(3) After the officers in the present case observed the marked boxes, they proceeded to the front of the pickup where they asked the driver, appellant Lewis, for his license. While standing at the front of the truck, the officers noticed two rifles and certain tools in the cab of the truck.

Concerning the sequence of events after the officers reached the front of the truck, Trooper Alexander Collins, one of the two officers, testified as follows in Perry Magistrate’s Court, District #■ 2:

“A. Well, we asked to see the operator’s license, of Mr. Lewis. At this time I didn’t know the reputation of these people, but Trooper Thompson seemed to know them fairly well, and since they did have weapons in the truck and tools, we asked them to get in the cruiser and he placed them under arrest and give them their rights.
“Q.25 What did he arrest them for?
Possession of burglary tools. “A.
“Q.26 Are those the tools that he arrested them for?
“A. Yes, sir, they are.
“Q.27 And that’s a conventional lug wrench and a conventional set of bolt cutters?
“A. Yes, sir.”

Trooper Leroy Thompson was the only one of the two arresting officers to testify in the trial at the District Court. He was not asked expressly if he and Trooper Collins observed the rifles and burglary tools at the time they were at the front of the pickup. However, he testified that the two rifles were standing upright in the middle of the cab and the tire tool and the bolt cutters were on the floor (as opposed to being under the seat). Thus the rifle and tools were positioned in readily observable locations.

With respect to why appellants were placed under arrest, Trooper Thompson was questioned as follows in the Magistrate’s Court;

“Q.9 And when you placed them under arrest over at Busy, in Perry County, Kentucky, what did you advise them at that time that you were arresting them for?
“A. At the time I advised them: because of the tail lamps, because of the loud muffler, because of the burglary tools, and also because of the dynamite, but I didn’t bring the dynamite charges against them. That case was taken by Detective Jarvis, and also AT&F agent, Larry Hatton.”

On cross examination in the Magistrate’s Court, Trooper Thompson further testified:

“Q.48 Why did you arrest the passenger if you — if the original charge was strictly a loud muffler and tail light?
A. Because I seen the dynamite caps, because the vehicle that was hauling them was not marked as such, because in my belief they were stolen.”

This testimony contains one of the few references in the record to the fact that appellants by the mere act of transporting the explosive materials without either the marking “Explosives” or “Danger” on the side of the pickup were committing a state statutory offense. K.R.S. § 189.160. The federal statute, 18 U.S.C. § 842(h), on the other hand, only makes it illegal to transport explosive materials if they are stolen. The appellants were never charged with a violation of K.R.S. § 189.160.

(4) We come now to the question of whether probable cause existed for the search of the camper. Nothing in the federal statute, 18 U.S.C. § 842(h), makes it illegal to transport blasting caps. Appellants’ pickup carried a sign “General Construction Company.” The police officers had no knowledge at the time of the arrest that blasting caps were missing from a construction company’s magazine in a nearby county. The theft was not discovered until the next morning. The officers were not in the neighborhood investigating construction company thefts. They were staked out oh a drunkenness complaint.

On the other hand, the officers noticed this heavily loaded pickup (not a transport truck as is usually required to carry explosive materials) traveling in a rural area of eastern Kentucky about midnight on a Sunday night of a Labor Day weekend. Further, the officers noticed a large supply of electrical blasting caps in the camper and appellants refused to state what was in the camper and declined to open the camper for the officers to inspect. The officers noticed two rifles and muddied tools which in their opinion were burglary tools. Considering these circumstances balanced against those in the previous paragraph, we hold that the officers had probable cause to search the camper. They had more than a “bare suspicion” that the blasting caps were stolen. .

(5) Given the presence of probable cause to search the camper, were the officers required by the Fourth Amendment to obtain a warrant prior to the search? For the reasons set forth below, we think not.

First, the marked boxes, which contained the stolen blasting caps and which were seized from the camper, were in “plain view” of the officers. Coolidge v. New Hampshire, supra, 403 U.S. at 465-472, 91 S.Ct. 2022; Harris v. United States, supra, 390 U.S. at 236, 88 S.Ct. 992.

“What the ‘plain view’ cases have in common is that the police officer in each of them had a prior justification for an intrusion in the course of which he came inadvertently across a piece of evidence incriminating the accused.” Coolidge v. New Hampshire, supra, 403 U.S. at 466, 91 S.Ct. at 2038.

The officers in the present case were justified in intruding'on the appellants to issue them a traffic citation. In the routine performance of the their duties, they saw the incriminating evidence.

Second, exigent circumstances in the present case rendered it impractical for the officers to obtain a warrant and justified the warrantless search. Warden v. Hayden, supra, 387 U.S. at 298-299, 87 S.Ct. 1642; McDonald v. United States, supra, 335 U.S. at 454-455, 69 S.Ct. 191. In denying a motion to suppress the blasting caps the District Court listed the following factors which constituted exigent circumstances: 1) the presence of inherently dangerous explosives, 2) the officers’ concern that dynamite might be stored along with the blasting caps (a wrecker operator refused to tow the truck), 3) the hour, of night (about midnight), 4) the knowledge by one of the officers that at least one of the appellants was an ex-convict, and 5) the mobility of the vehicle.

Further, the circumstances of this case fit within the exception to the warrant requirement that permits a search of an automobile on the highway where there is probable cause to support the search and “where it is not practicable to secure a warrant, because the vehicle can be quickly moved out of the locality or jurisdiction in which ,the warrant must be sought.” Carroll v. United States, supra, 267 U.S. at 153, 45 S.Ct. at 285. See also Coolidge v. New Hampshire, supra; Chambers v. Maroney, supra; Dyke v. Taylor Implement Mfg. Co., 391 U.S. 216, 88 S.Ct. 1472, 20 L. Ed.2d 538 (1968).

The officers assuredly would have been derelict in their duties if, while believing that explosives were in the camper, they had taken appellants to jail and left the pickup abandoned in this rural area. The Supreme Court held recently in Cady v. Dombrowski, 413 U.S. 433, 448, 93 S.Ct. 2523, 37 L.Ed.2d 706 (1973), that where the trunk of an automobile which an officer reasonably believed to contain a gun was vulnerable to intrusion by vandals, the search of the trunk was not unreasonable within the meaning of the Fourth Amendment.

Finally, The Government contends that the warrantless search of the camper was justified because it was incident to a lawful arrest. Chimel v. California, supra; Agnello v. United States, supra. Initially, we should note that the arrest must be a lawful one in order to justify the search. Manning v. Jarnigan, 501 F.2d 408 (6th Cir. 1974). Moreover, the rule of this court was stated in Stidham v. Wingo, 452 F.2d 837, 841 (6th Cir. 1971), in which we quoted approvingly the following language of Chief Judge Murrah in United States v. Humphrey, 409 F.2d 1055 (10th Cir. 1969):

“We are in complete agreement with the prevailing federal and state authority which condemns the search of persons and automobiles following routine traffic violations. Such searches can only be justified in exceptional, on the spot circumstances which rise to the dignity of probable cause.”

Subsequent to Stidham, the Supreme Court in the companion cases of United States v. Robinson, supra, and Gustafson v. Florida, 414 U.S. 260, 94 S.Ct. 488, 38 L.Ed.2d 456 (1973), sanctioned wider search of the person incident to traffic violations. In both cases probable cause was either conceded or clearly present. In United States v. Robinson, a police officer made a custodial arrest of a traffic offender for driving while his license was revoked. The officer made a search of the offender’s person, in the course .of which he found in an inside coat pocket a cigarette package containing heroin. The Supreme Court held that the heroin was admitted into evidence lawfully in the traffic offender’s subsequent trial for a drug offense, saying that the search was not only incident to a lawful arrest but was also reasonable. Similarly, in Gustafson v. Florida, during the course of a patdown search of the person of a traffic offender who had been arrested for not having his driver’s license in his possession, the arresting officer seized some marihuana cigarettes. The Supreme Court upheld this search and seizure on the same grounds stated in United States v. Robinson. See also United States v. Edwards, 415 U.S. 800, 94 S.Ct. 1234, 39 L.Ed.2d 771 (1974), for an even more recent statement by the Supreme Court on the validity of a search incident to an arrest.

In neither United States v. Robinson nor Gustafson v. Florida was any issue raised as to a warrantless search of the vehicle (as opposed to the person) subsequent to arrest for a traffic offense. Accordingly, if the appellants in this case had been arrested solely for the traffic offense of defective tail lights and loud muffler, we would adhere to the rule in Stidham and decline to uphold the warrantless search of the camper as one properly conducted incident to an arrest for a traffic offense.

On the other hand, there is evidence from which the District Court could conclude that appellants were arrested for the traffic offenses and for the possession of burglary tools, or solely for the possession of burglary tools as suggested at one time by one of the officers in Perry Magistrate’s Court. Considering all the exceptional circumstances of this case recited above, we hold the warrant-less search of the camper was justified as being incident to the arrest for possession of burglary tools.

(B) Appellants next contend that the District Court' erred in permitting the Government to introduce into evidence a pair of bolt cutters and a tire tool because they were obtained without a warrant from Kentucky police officers. The Kentucky officers had used this evidence in two earlier prosecutions of appellants in Kentucky state courts. The appellants filed a motion for the return of the items after the first state trial.

This court previously has disposed of this issue in United States v. Gargotto, 476 F.2d 1009, 1014 (1973), in which we stated as follows:

“Evidence legally obtained by one police agency may be made available to other such agencies without a warrant, even for a use different from that for which it was originally taken. Gullett v. United States, 387 F.2d 307 (8th Cir. 1967), cert. denied, 390 U.S. 1044, 88 S.Ct. 1645, 20 L.Ed.2d 307 (1968).”

The fact that a motion has been filed for the return of the evidence has no bearing on the rule that one police agency need not get a warrant prior to obtaining evidence from another police agency.

(C) Appellants contend finally that the District Court erred to their prejudice in permitting the Government to introduce evidence in attempting to prove that appellants had stolen the blasting caps from a construction company’s magazine. The claimed prejudice is that it would indicate to the jury their prior conviction in Leslie Circuit Court on a charge of breaking and entering.

To prove a violation of 18 U.S.C. § 842(h), the Government had to show that appellants knew or had reasonable cause to believe that the blasting caps were stolen. Consequently, the prosecution had to prove a theft. Evidence that the appellants committed the burglary of the magazine was properly admissible as proof of the scienter required by 18 U.S.C. § 842(h).

Appellants’ reliance on United States v. Baker, 494 F.2d 1262 (6th Cir. 1974) is misfounded. In that case, it was conceded that the evidence which we found prejudicial was “not relevant to proving the crime charged.” 494 F.2d at 1265. In the present case, the evidence of the burglary was directly related to the offense charged.

Affirmed.

      . 18 U.S.C. § 842(h) provides as follows:
      “It shall he unlawful for any person to receive, conceal, transport, ship, store, barter, sell, or dispose of any explosive materials knowing or having reasonable cause to believe that such explosive materials were stolen.”

      . There was varying testimony as to the exact label on the boxes. “Danger electrical blasting caps,” or something closely approximating that, appears to have been the most likely marking on the boxes.

      . The Advisory Committee Note to the 1966 amendment of Rule 18 says in part: “The former requirement for venue within the division operated in an irrational fashion. Divisions have been created in only half of the districts, and the differentiation between those districts with and those without divisions often bears no relationship to comparative size or population. In many districts a single judge is required to sit in several divisions and only brief and infrequent terms may be held in particular divisions. As a consequence under the original rule there was often undue delay in the disposition of criminal cases — delay which was particularly serious with respect to defendants who had been unable to secure release on bail pending the holding of the next term of court.”

      . The Sixth Amendment provides in part that “in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law * * *_»

      . The phrase “jury division,” as used here, refers to the court created grouping of counties into units for the administrative purpose of selecting names to be placed in the master jury wheel of the district. The phrase does not refer to any eongressionally created divisions in the Eastern District of Kentucky.

      . This case had been pending on the Pikeville docket for over seven months prior to its transfer to the Lexington docket.

      . As indicated by the testimony recited in III (A) (3) of this opinion, there exists some uncertainty as to the exact offense for which appellants were arrested.