On Petition for Rehearing.
ALDRICH, Circuit Judge.In its brief in support of its petition for rehearing the Commission charges that we have “[w]ith a single stroke of the pen * * * obliterated 20 years of enforcement practice by the Commission.” It furnishes a pageful of citations to its own previous rulings and consent orders, and winds up reciting that administrative practice is the ultimately determining factor in statutory construction, citing Norwegian Nitrogen Products Co. v. United States, 1933, 288 U.S. 294, 53 S.Ct. 350, 77 L.Ed. 796; Alaska S.S. Co. v. United States, 1933, 290 U.S. 256, 54 S.Ct. 159, 78 L.Ed. 302; F.T.C. v. Mandel Bros., Inc., 1959, 359 U.S. 385, 79 S.Ct. 818, 3 L.Ed.2d 893. Since rehearing is a discretionary matter, let us turn the inquiry about and see what the Commission’s “pen” has hitherto been doing.
*692This case was argued primarily on statutory construction. In petitioner Carr’s original brief, and in his reply brief, he contended at length that the Wool Products Labeling Act applies in terms only to “products” and does not apply to basic materials. His argument centered upon what, within the meaning of the act, constitutes a product. He commenced by pointing out that no one has suggested that virgin wool is a product, or, more exactly, that wool is, per se, a “product * * * containing wool. * * * ” He then argued, to our satisfaction, that a garnett of reprocessed wool is, precisely, basic reprocessed wool, and therefore is not a “product * * * containing * * * reprocessed wool.” Possibly he did not make his argument in the exact form which we adopted, but clearly it was analysis of the statutory language, a procedure which the Commission now describes, seemingly opprobriously, as “semantics and hermeneutics.” In reply the Commission stated in its brief that the question of whether virgin wool itself is a wool product was not an issue in the ease. In oral argument, in response to a question from the court, Commission counsel went further and conceded that there was no contention that wool itself is a wool product. On this assumption, which even now the Commission does not dispute, except perhaps indirectly when it launches into the rhetorical part of its argument, we reached the corresponding conclusion that reprocessed wool was not in itself a “product * * * containing * * * reprocessed wool.” We have carefully reviewed the Commission’s brief. It made no mention or reference, direct or indirect, to administrative practice to rebut this “semantics,” nor did it in oral argument. Neither, may we add, did the Commission’s opinion.1
This is not a case of a party caught in some manner by surprise. It is not even the case of indifferent counsel not versed in every branch of the law. In general matters, even though not obliged to do so, we commonly make our own research. But a court cannot be expected to rummage among administrative rulings and consent orders sua sponte when the party most directly involved and knowledgeable makes no suggestion that anything would be found there. For a governmental agency best familiar with its own practice with respect to a matter directly in issue, and now said to be of paramount importance, to make no mention of the subject until after it had lost the case on another ground, if deliberate, is a breach of duty to the court and, if inadvertent, is still inexcusable. The Commission’s petition for rehearing raising this allegedly vital point contains no mention of why it was first developed at this late date, let alone any apology for so doing.
Secondly, the petition for rehearing calls our attention to certain legislative history which the Commission interprets as indicating error in our decision. In this instance legislative history was initially argued. It was argued, however, solely by Carr. Even in oral argument the Commission made no response on this subject, and no request to be permitted to reply in any supplementary manner. Dealing with the Commission’s new contentions as to legislative history, however, we will say that they are unpersuasive. They would be pertinent only if we had held that a wool product is not a product until it is a “finished manufactured article.” We disclaimed any such holding in the sense that the Commission now charges, and recognized that a product could be an intermediate or process product short of a final one.
Finally, we must comment upon two statements contained in the Commission’s present brief in which it describes a garnetter as an individual qualified to “know the precise fiber content of his product,” and asserts that the purpose of the Wool Products Labelling Act is to protect manufacturers of finished wool products against “unscrupulous” garnetters. In Carr’s original brief he developed the point that as the supplier of *693a single mechanical process he was in no position to know the camel hair content of the waste materials supplied to him. Neither the findings of the Commission, nor the written or oral arguments made before us hitherto, in any way disputed this contention. It may be that it is desirable that garnetters be required to assume personal responsibility for labeling, but if so it is not on the basis of the unsupported argument that the Commission now makes that ultimate manufacturers are innocent parties incapable of protecting themselves and that garnetters are villains.
If upon some subsequent occasion the Commission wishes to point out to this court, or to any other court, that our decision was made without consideration of administrative history it will be free to do so. But we do not choose to go further at this time.2
The petition for rehearing is denied.
WOODBURY, Chief Judge, while adhering to his views previously expressed, concurs herein.. In fairness, the Commission cited one pri- or decision. But this was scarcely a showing of a practice; nor was it so suggested.
. We may remind the Commission that when Carr discovered he was in difficulties because he had poorly presented his case before it, and sought to reopen, the Corn-mission denied his motion on the ground that one opportunity was enough. It might be said that what is sauce for Carr’s goose is sauce for the Government’s.