SWAN, Chief Judge.
This is an appeal by the plaintiff from a summary judgment dismissing his complaint in an action brought against the Secretary of Agriculture to recover payments, made under protest, pursuant to provisions of Order No. 27, as amended, regulating the handling of milk in the New York milk marketing area. The plaintiff is a small milk dealer in Lindenhurst, Suffolk County, N. Y. As such he is a “handler” of milk as defined in § 927.1(g) of the Order. The payments he seeks to recover were exacted by the market administrator under § 927.9(h) of the Order with respect to cream and plain condensed milk purchased by the plaintiff from a plant in Orr-ville, Ohio, and resold within the New York area to small establishments for use in manufacturing ice cream. The plaintiff has permission under license from the New York State Health Department and from health authorities of Nassau and Suffolk Counties to import cream and condensed milk from Orrville, Ohio, provided such milk products are used for manufacturing purposes only. He first sought administrative relief, as required by 7 U.S.C.A. § 608c(15) (A). The hearing examiner filed a report recommending that the provisions under attack be declared “not in accordance with law” because (1) the payments required were in violation of the Agricultural Marketing Agreement Act of 1937, 7 U.S.C.A. § 608c(5) (G), and (2) with respect to condensed milk, the provision, until its later amendment on October 1, 1946, was void for lack of notice in the promulgation hearing. Upon review of the examiner’s recommendations the Judicial Officer of the Department of Agriculture refused to adopt them and ruled that the payments required of the plaintiff were legally exacted.1 The present action was brought pursuant to 7 [793]*793U.S.C.A. § 608c(15) (B),to obtain judicial review of the ruling of the Judicial Officer. Attached as exhibits to the complaint were the report of the hearing examiner and the decision of the Judicial Officer. The defendant filed an answer demanding that the complaint be dismissed on the merits. Both parties moved for summary judgment on the pleadings. The defendant’s motion was granted. From the judgment dismissing the complaint the plaintiff has appealed.
Before discussing the legal questions presented by the appeal, a brief reference to the history of federal milk regulation in the New York area may be useful. The Agricultural Marketing Agreement Act of 1937, 7 U.S.C.A. § 601 et seq., reenacted, amended and supplemented previous legislation; it empowers the Secretary of Agriculture to promulgate, inter alia, milk orders.2 Order No. 27 for the New York metropolitan marketing area went into effect September 1. 1938. Extensive amendments, among which are the provisions challenged by the present action, became effective August 1, 1945. They established a new plan of regulating the marketing of milk in the New York area. Before these amendments the Order applied its classification, pricing and pooling provisions to all milk that was approved by the health authorities for sale in the metropolitan marketing area.3 Under this method of regulation it was possible for plants having health authority approval to share in the pool, even though they supplied the marketing area with little or no fluid milk during the season of short supply. A handler operating such a plant could obtain milk for the manufacture of milk products by paying the class price of milk as such — a lower price than the uniform price — and could then obtain from the producer-settlement fund, a credit sufficient to enable him to pay the uniform price to the producers who supplied the milk. This practice had the dual effect of reducing the returns of producers whose milk was regularly distributed as fluid milk in the marketing area, and of providing an inadequate supply of fluid milk in the fall and winter months of low production. To remedy this situation the 1945 amendments were adopted. By § 927.1(f) “producer” was defined to mean any dairy farmer whose milk is delivered direct from a farm to a pool plant, and “pool plant” was defined as any plant which is designated as a pool plant pursuant to § 927.3. Qualification for such designation required either the shipment of, or the ability and willingness to ship, fluid milk to the marketing area. This new plan of regulation based primarily on the handling of milk in pool plants is not challenged by the appellant. His attack is directed to auxiliary provisions, namely § 927.9(h), printed in the margin.4 In brief these aux[794]*794iliary provisions provide that handlers of non-pool milk and non-pool milk products disposed of in the marketing area are required to make payments to producers, through the producer settlement fund. The purpose of these provisions is, in the words of Mr. Weldon, a witness at the promulgation hearing, “to insure that the minimum cost [of non-pool milk, cream, etc.] to handlers is the same as the regular class price to handlers of milk received at pool plants. * * * ” The effect is to add an additional cost to the original price of the non-pool milk or milk product which is paid by the handler, not to the seller or original producer, but to the regular suppliers of the New York market who did not deliver the milk or milk products to him.
The Ohio plant from which the plaintiff purchased cream and plain condensed milk for sale in the New York area to ice cream manufacturers was not a pool plant [795]*795as defined in the Order after the 1945 amendments. Accordingly, the market administrator billed the plaintiff for the payments exacted under § 927.9(h). They were computed in the following manner: Before September 1, 1946, when a federal milk order for the Ohio area went into effect, the amount exacted in the case of cream was the difference between the Class II-A (New York cream) price and the Class IV-A (New York butter) price; in the case of condensed milk it was the difference between the Class II-B (New York condensed milk) price and the Class IV-A (New York butter) price.5 No consideration was given to the price actually paid to the non-pool plant for the milk products. § 927.9(h) (2) (ii). After the Ohio milk order became effective, the amount required to be paid was any plus difference between the cláss prices for cream and condensed milk under that order and the respective class prices under the New York order. § 927.9(h) (2) (i). The total exactions required from the plaintiff were about $10,000. His brief describes them as “penalty” payments, as did the witnesses at the promulgation hearing and the hearing examiner in his recommendations. Carefully avoiding the word “penalty,” the Secretary’s brief describes them as “compensatory” payments, i. e. compensation for competition of non-pool milk with pool milk. We think “penalty” is the more accurate description. In a very rough way they may tend to compensate New York producers for having lost a sale, because they are an addition to the producer settlement fund and are taken into account in computing the uniform price payable to producers. But they are likewise required even if the plaintiff’s purchases from the Ohio plant were made at times when no milk was available in the New York market area for processing into cream or condensed milk. § 927.9(h) (1) makes such fact immaterial.
Turning to the statute: Section 8c(5), 7 U.S.C.A. § 608c(5), declares that a milk order shall contain one or more of. the “terms and conditions” described therein, “and (except as provided in subsection (7)) no others”.
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SWAN, Chief Judge.
This is an appeal by the plaintiff from a summary judgment dismissing his complaint in an action brought against the Secretary of Agriculture to recover payments, made under protest, pursuant to provisions of Order No. 27, as amended, regulating the handling of milk in the New York milk marketing area. The plaintiff is a small milk dealer in Lindenhurst, Suffolk County, N. Y. As such he is a “handler” of milk as defined in § 927.1(g) of the Order. The payments he seeks to recover were exacted by the market administrator under § 927.9(h) of the Order with respect to cream and plain condensed milk purchased by the plaintiff from a plant in Orr-ville, Ohio, and resold within the New York area to small establishments for use in manufacturing ice cream. The plaintiff has permission under license from the New York State Health Department and from health authorities of Nassau and Suffolk Counties to import cream and condensed milk from Orrville, Ohio, provided such milk products are used for manufacturing purposes only. He first sought administrative relief, as required by 7 U.S.C.A. § 608c(15) (A). The hearing examiner filed a report recommending that the provisions under attack be declared “not in accordance with law” because (1) the payments required were in violation of the Agricultural Marketing Agreement Act of 1937, 7 U.S.C.A. § 608c(5) (G), and (2) with respect to condensed milk, the provision, until its later amendment on October 1, 1946, was void for lack of notice in the promulgation hearing. Upon review of the examiner’s recommendations the Judicial Officer of the Department of Agriculture refused to adopt them and ruled that the payments required of the plaintiff were legally exacted.1 The present action was brought pursuant to 7 [793]*793U.S.C.A. § 608c(15) (B),to obtain judicial review of the ruling of the Judicial Officer. Attached as exhibits to the complaint were the report of the hearing examiner and the decision of the Judicial Officer. The defendant filed an answer demanding that the complaint be dismissed on the merits. Both parties moved for summary judgment on the pleadings. The defendant’s motion was granted. From the judgment dismissing the complaint the plaintiff has appealed.
Before discussing the legal questions presented by the appeal, a brief reference to the history of federal milk regulation in the New York area may be useful. The Agricultural Marketing Agreement Act of 1937, 7 U.S.C.A. § 601 et seq., reenacted, amended and supplemented previous legislation; it empowers the Secretary of Agriculture to promulgate, inter alia, milk orders.2 Order No. 27 for the New York metropolitan marketing area went into effect September 1. 1938. Extensive amendments, among which are the provisions challenged by the present action, became effective August 1, 1945. They established a new plan of regulating the marketing of milk in the New York area. Before these amendments the Order applied its classification, pricing and pooling provisions to all milk that was approved by the health authorities for sale in the metropolitan marketing area.3 Under this method of regulation it was possible for plants having health authority approval to share in the pool, even though they supplied the marketing area with little or no fluid milk during the season of short supply. A handler operating such a plant could obtain milk for the manufacture of milk products by paying the class price of milk as such — a lower price than the uniform price — and could then obtain from the producer-settlement fund, a credit sufficient to enable him to pay the uniform price to the producers who supplied the milk. This practice had the dual effect of reducing the returns of producers whose milk was regularly distributed as fluid milk in the marketing area, and of providing an inadequate supply of fluid milk in the fall and winter months of low production. To remedy this situation the 1945 amendments were adopted. By § 927.1(f) “producer” was defined to mean any dairy farmer whose milk is delivered direct from a farm to a pool plant, and “pool plant” was defined as any plant which is designated as a pool plant pursuant to § 927.3. Qualification for such designation required either the shipment of, or the ability and willingness to ship, fluid milk to the marketing area. This new plan of regulation based primarily on the handling of milk in pool plants is not challenged by the appellant. His attack is directed to auxiliary provisions, namely § 927.9(h), printed in the margin.4 In brief these aux[794]*794iliary provisions provide that handlers of non-pool milk and non-pool milk products disposed of in the marketing area are required to make payments to producers, through the producer settlement fund. The purpose of these provisions is, in the words of Mr. Weldon, a witness at the promulgation hearing, “to insure that the minimum cost [of non-pool milk, cream, etc.] to handlers is the same as the regular class price to handlers of milk received at pool plants. * * * ” The effect is to add an additional cost to the original price of the non-pool milk or milk product which is paid by the handler, not to the seller or original producer, but to the regular suppliers of the New York market who did not deliver the milk or milk products to him.
The Ohio plant from which the plaintiff purchased cream and plain condensed milk for sale in the New York area to ice cream manufacturers was not a pool plant [795]*795as defined in the Order after the 1945 amendments. Accordingly, the market administrator billed the plaintiff for the payments exacted under § 927.9(h). They were computed in the following manner: Before September 1, 1946, when a federal milk order for the Ohio area went into effect, the amount exacted in the case of cream was the difference between the Class II-A (New York cream) price and the Class IV-A (New York butter) price; in the case of condensed milk it was the difference between the Class II-B (New York condensed milk) price and the Class IV-A (New York butter) price.5 No consideration was given to the price actually paid to the non-pool plant for the milk products. § 927.9(h) (2) (ii). After the Ohio milk order became effective, the amount required to be paid was any plus difference between the cláss prices for cream and condensed milk under that order and the respective class prices under the New York order. § 927.9(h) (2) (i). The total exactions required from the plaintiff were about $10,000. His brief describes them as “penalty” payments, as did the witnesses at the promulgation hearing and the hearing examiner in his recommendations. Carefully avoiding the word “penalty,” the Secretary’s brief describes them as “compensatory” payments, i. e. compensation for competition of non-pool milk with pool milk. We think “penalty” is the more accurate description. In a very rough way they may tend to compensate New York producers for having lost a sale, because they are an addition to the producer settlement fund and are taken into account in computing the uniform price payable to producers. But they are likewise required even if the plaintiff’s purchases from the Ohio plant were made at times when no milk was available in the New York market area for processing into cream or condensed milk. § 927.9(h) (1) makes such fact immaterial.
Turning to the statute: Section 8c(5), 7 U.S.C.A. § 608c(5), declares that a milk order shall contain one or more of. the “terms and conditions” described therein, “and (except as provided in subsection (7)) no others”. Under subsection (7) (D) additional provisions are permissible, if they are “Incidental to, and not inconsistent with, the terms and conditions specified in subsections (5), (6), and (7) and necessary to effectuate the other provisions of such order.” The immediate object of the Act is to fix minimum prices for the sale of milk by producers to handlers.6 The Act itself does not define “producers” but it is clear from the context that the term refers to dairy farmers who supply the milk which the handlers market. The relevant portions of section 8c(5) are printed in the margin.7 [796]*796Paragraph (A) authorizes the classification of milk in accordance with the form or purpose of its use, and the fixing of minimum prices for each use classification. This is because the economic value of milk depends upon the use made of it. To avoid inequities among producers if the price each received depended upon the use each handler makes of his milk, paragraph (B) authorizes provision to be made for the payment to producers of uniform prices for the milk delivered, irrespective of the use to which the milk is put by the particular handler to whom it is delivered. Such uniform prices are subject, however, to specified “adjustments.” To accomplish the purposes of paragraphs (A) and (B), paragraph (C) authorizes the Secretary of Agriculture to set up the necessary machinery.
We think that the payments required by section 927.9(h) of the Order are part of the “minimum price” as that term is used in section 8c(5) (A) of the Act. The price of non-pool cream or condensed milk to a New York handler is in reality composed of two elements: (1) the initial cost, i. e., the amount paid to the seller, and (2) the amount of the penalty required to be paid under the Order. Section 927.9 (h) (2) (ii) assumes that the initial cost of the non-pool cream and condensed milk will be the Class IV-A (butter) price under the New York order. If this assumption were true, the minimum prices of pool and non-pool cream and condensed milk would be the same and would satisfy the requirement imposed by section 8c(5) (A) that “Such prices shall be uniform as to all handlers * * * ”8 However, there is no substantial evidence in the record of the promulgation hearings which would indicate that the initial cost of non-pool cream and condensed milk would be the New York Class IV-A price. In fact, the only evidence bearing directly on this question supports the conclusion that the initial cost would be more than the New York Qass IV-A price. Therefore, the result of the exaction of a penalty computed on the basis of the New York Class IV-A price rather than the actual cost to the handler is a price discrimination between a handler who purchases non-pool milk products and one who purchases pool milk products, although each makes the same use of such products in the New York marketing area. This in our opinion is contrary to the requirement laid down in section 8c (5) (A) that the minimum prices for each use classification shall be uniform as to all handlers.
The same is true of section 927.9(h) (2) (i) of the Order. That section provides for a penalty payment to be computed as any plus amount obtained by subtracting the applicable Cleveland order price from the New York Class-in-which-used price. While the Cleveland class price [797]*797is a fair indication of the price actually-paid by a New York handler for non-pool Ohio milk products, in most cases it will not be the exact cost because that class price does not include the profit margin of the Ohio seller. It may be argued that a slight disparity in price would be justified on the ground that this method of computing the penalty is the only feasible scheme from the standpoint of administrative convenience. But in the absence of any showing of administrative necessity, we are constrained to hold that any discrimination in price is contrary to the requirement of uniformity.
Consequently, the challenged provisions of the order under which the penalty' payments were exacted are inconsistent with the terms and conditions specified in section 8c(5) (A) and therefore cannot he ’ justified under section 8c(7) (D). As Mr. Justice Clark remarked in construing subsection (7) (D) in Brannan v. Stark, 342 U.S. 451, 72 S.Ct. 433, 439: “Finally, the provisions cannot be incidental to the enumerated terms and conditions since they are inconsistent therewith.” And because of such inconsistency the court found it unnecessary to determine whether the provisions there under attack were “ ‘necessary to effectuate the other provisions’ of the Order”. Although Brannan v. Stark is not a precise authority for the case at bar, we think it tends to support our decision.9
Since we rest decision on the ground that the provisions of section 927.9(h) of the order are inconsistent with the terms specified in paragraph (A) of section 8c(5), it is unnecessary to discuss other contentions of the parties.
The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.