*2 POPE, Before HAMLEY and MERRILL, Judges. Circuit Judge. HAMLEY, Circuit The Federal Maritime Commission commenced this action in the district court for enforcement of an administra- tive twenty- order. The order directed three named common carriers to certain and communications for inspection copying by Transmarine Carriers, Inc., Contract in connection complaint proceeding with a pending be- fore the Commission. The district court set aside the Commission’s order on the pursuant it was issued regulation, invalid and dismissed the petition for enforcement. The Commis- appeals. question presented sole our the Com consideration whether mission had Rule of 46 C.F.R. § Practice “Discovery (Supp.1963), 201.211 entitled and Production of Documents.” background documents related to are not facts Transmarine, carriage, pute. certain rates Pursuant to section Company Weyerhaeuser and Allied as amended Stat. 736 Packers, copies (1958), Inc. Transmarine Canners U.S.C. § *3 Carriers, Inc., be made ex- the were to Contract filed with Transmarine’s twenty- against pense. complaint The motion set forth that the papers sought, belief, comprising in Transmarine’s three common carriers the alleged prove European and would the violations Pacific Coast Conference.1 possession complaint the of that Trans- were in the common forth set engaged pursu- carriers. motion was marine had been contract made carriage Prac- ant to the Commission’s of of certain commodities between hearing ports European Pacific and tice 12 examin- on the coast alleged ports. ers, showing good the on a of relevance and was further cause, upon parties, named common had combined and to all carriers notice among production copying order the for doc- themselves and with others to of rupt party’s relationship possession.2 the contract between uments in Weyerhaeuser Transmarine and the Com- against the The common carriers which terminating pany, had succeeded motions were directed moved to strike Transmarine’s contract wood ground discovery for the motion pulp Weyerhaeuser, for and had driven implied is au no or Transmarine out of the Pacific coast thority pre promulgation for of a the European trade. activities were These hearing discovery rule such as alleged be violations sections any is, and therefore the rule and (Third), Ship- (First), and of the be, in issued thereunder would ping Act, (Third), hearing valid. the denied examiner (First) (1958). and 815 gave motion to and strike the common within sought carriers additional time which investigation Transmarine an objections specific scope file to the hearing, and a declaration that the com- motion. The common carriers filed mon had carriers violated cited sec- objections hearing such appropriate exam tions of and d grante thereupon iner Shortly filing the motion complaint, relief. after discovery. Transmarine moved Commission for discovery production and of documents. Specifically, the common carriers were Specifically, company requested produce ordered and make available twenty-three common inspection carriers or- copying and copies dered to make by available certain date, time documents named communications between mutually the Conference production and to be or its and members six named in- agreed by parties. Provision cluding and was made this order for the common and Conference its individual members. any to resist carriers the disclosure provides any person may 1. Section 22 photographing, by and or or on concerning complaint file a party, any moving violations behalf ignated des- Shipping the ject common carriers sub- documents, papers, books, ac- complaint to the Act. counts, letters, If the photographs, objects, is not or tangible satisfied the things, privileged, directed to “ ** * investigate the matter in such relating or constitute contain evidence means, any manner and matter, and make privileged, which is proper.” such order as it subject deems relevant to the matter involved pending proceeding, in the and which 12(k) 2. Rule reads: custody possession, are in his con- “Discovery production and docu- time, specify The order trol. shall Upon any party ments. motion place, making inspec- and manner of good showing cause therefor and copies photo- taking and and parties, all notice to presiding the Board or graphs may prescribe may party terms officer direct just.” permit inspection conditions as are ity concerning information confidential pursu- consignees, documents. shippers affairs 20 of ant to section considering whether disputed (1958). Such invalidating the rule well to the first to be submitted items were founded, proposition, we start with for a determination examiner here, that the contested regarding disclosure. must be of the United States thereafter carriers powers issued hearing ex- Transmarine formed Congress. States, Cir., Kirk v. United *4 comply to intention aminer of agency regulations 110, 118. If 270 F.2d go position discovery Their order. with the Congress authorized, beyond what re- question were then in order they Light & void. Utah Power Co. Commis- Commission. to the ferred States, 389, 410, 37 v. United and determined approved order the 791; L.Ed. 61 Hawke v. district in the its enforcement to seek Cir., Int. 109 F.2d Rev., Com’r of 9 for enforcement action This court. commenced discovery then was the (k) promulgated 12 March Rule was on Shipping the pursuant to section Board, 26,1958, the Federal Maritime (1958). Act, 46 U.S.C. § predecessor As the Commission. the court district petition to the In its concedes, the Commission there was the asked that the Commission effect, then in nor has there since been un- all to ordered carriers be enacted, explicitly empower- statute specified in motion the privileged ing promul- the Board or Commission to carriers, re- discovery. The common gate discovery to and rule the proceed- district court spondents in the production of But documents. there was ing, petition for enforcement the resisted in effect then section of Mer- the grounds they had advanced on the same chant Act of Marine Stat. setting examiner. the 1114(b) (1958), as amended 46 U.S.C. § dismiss- order and the Commission aside providing as follows: ing petition court ex- district the the “The Federal Maritime Board and pressed Commission’s view that the the “ Secretary * * * the are au- Commerce discovery more than does rule adopt necessary thorized to all rules merely the frame- fill in details carry pow- out the existing legislation. It adds work of ers, duties, and in it functions vested authority thereto, is without and hence chapter.” or him this appeal followed. This in law.” Act, Section 22 of quoted observa- under indicated As complaint proceeding (k) which this court, Rule district tions brought part ground has been a of that Act since invalid was not held original September 7, on inappropriate enactment of ac- is an means that it powers, legitimate objective, 1916. It follows that the complishing duties thereby rule-making and functions vested in the Com- defect in the among predecessor promulgation. proceeding to its mission’s were which led “powers, duties and functions” referred invalid on the It was held to be 204(b), quoted in above.3 author- Commission was without that the act, investigate it in such in this 3. The asserts that other vided two hy mewns, statutory promul- manner and make sources of proper." gate such order as it deems also in when Rule rules were effect statutory authority, (k) was^promulgated 12 these, source of 1958. One contends, argues, the Commission is cer- is the entire stat- namely language itself, utory tain framework under following operates, including sen- the Administrative italicized complaint seq., tence: “If the satisfied Procedure 1001 et is not asserts, pro- which, shall, except from Board as otherwise effect, attempt pretrial procedures that argues, The Commission utilize “necessary” ordinary out civil cases until Federal promul- powers, vested Rules of Civil and functions Procedure duties were gated provisions pursuant specific in 1937 under section Con- gressional authority.4 inconsistent with While general powers explicitly agency’s under did not authorize formulation pretrial discovery rules, under which it framework contained a provision Accordingly, requiring proposed functions. ample asserts, Congress Con- rules on rests returned to rule body’s gressional despite prior lack of consideration to their effec- authorizing regula- explicitly tuation.5 a statute particular kind. tions of this Especially illuminating way is the deciding Assuming without Supreme attempt by Court dealt inter-pri- (k), permitting such as court, sitting admiralty, a district vate-party discovery procedures prior invoke to the documents, in ad- is a useful device *5 1961 amendments to the Rules of provi- ministering 22 and other section Admiralty Practice and Maritime Act, and is therefore “neces- sions of the authorizing practice.6 Cases sary” in the to in section sense referred Atlass, 641, Miner v. 363 80 U.S. S.Ct. 204(b), it hold that is in- we nevertheless 1300, 1462, appeared that, 4 L.Ed.2d it general agency’s pow- consistent prior to these to amendments the General under framework under ers sitting Rules, a district court in admiral- functions, is in- which it therefore ty promulgated a rule local valid. taking depositions the ery of oral for discov- agencies regulatory All purposes. of the federal As for this ac- general rule-making compara- power tion, the district court relied Gen- to that Commis- 44, ble whereby eral Rule district courts were 204(b). Yet, section as counsel regulate practice authorized to “ * ** us, for both have informed they in such a as manner deem agency, except expedient most for due administra- attempted predicate to justice, provided tion of the same are not thereon. Although inconsistent with these rules.” scope courts, generally generally of 44 this is Even federal as- Rule 204(b) powers similar to that of to section sumed have broad inherent concerned, Act, procedure Merchant Marine as did under which the sofar is not 19, 1934, power 4. Act June 48 Stat. 1064. arises the “inherent” of the Com- regulate mission to the course its own Concerning requirement of the 1934 proceedings. Supreme said, Court Sibbach assertedly need these We not examine Co., Inc., 1, 15, & Wilson U.S. alternative to sources of S.Ct. 479: L.Ed. rules, since is not contend- “The value of the reservation they provide ed that the Commission with proposed rules, to examine laws authority than broader is conferred regulations they become ef- Merchant Ma- by Congress. fective is well understood quoted rine For above. the same here, employed frequently, as reason, the additional reason that make sure that the action under (k) it was not Rule 12 effect when was delegation squares Congres- with the promulgated, we consider the ef- not need purpose.” (Footnote omitted.) sional given Ship- fect to be section 43 of the Admiralty 30A-30E, 6. See ping Act, Rules 3, added of October (Supp., 1963), prescribed April 17, 1961, IV on 766, 75 Stat. 841a 1961, by Supreme at 368 Court U.S. July which reads: 1021, S.Ct., effective to become “The shall make such 19,1961. may rules and as be neces- sary provisions out the of this Act.” rules, adopt ilar to those is authorized the order under “ * * * Atlass, review, any designated Court, Supreme at in Miner v. place hearing.” argues held that S.Ct. adopt except provisions permitting empower for its district courts did taking copying, permitting providing for the at a local rule discovery purposes. depositions time and than that set for goes hearing, no further a local rule held that such The court than 27 and cannot be therefore Rules, inconsistent with the General said to be inconsistent with the prohibition because statutory framework under Rules, but the ab- General agency works. “ * * * general discovery rule of a sence significance importance must be taken as an advertent declination (k) may of the Commission’s Rule 12 opportunity to institute the by pointing be discounted me procedure covery-deposition Civil procedures chanical differences throughout admiralty.” 26(a) courts of rule, compared under that (363 as to inter- page 648, page at U.S. party subpoena procedure 1305). tecum Supreme duces Court based this right private under section 27. of a primarily particular conclusion party obtain, prior hearing history and out discovery-deposi- nature and presence officer, of a procedure. noting While that such opposing pri relevant documents of practice concededly “procedural,” party purpose vate may great the sole of exam court observed that it be many as ining aud importance litigants them in an effort a “sub- *6 clarify issues, narrow the basic stantive” doctrine. issues, ascertain facts relevant to those So, say here, it seems fair to that and to learn the existence or whereabouts discovery procedure inheres in facts, of other relevant is of essence volving prehearing production pretrial prehearing discovery. See documents, potential impact Taylor, 495, 501, Hickman v. upon litigants greater so much than that Inter-party 91 L.Ed. 451. ordinary procedural associated with subpoenas duces tecum unassociated with rules, Congress the failure of discovery, hand, only on the other serve affirmatively authorize the should same purpose providing one factual —that be taken as a deliberate choice. If this proof relevant to an established issue. assumption valid, necessarily follows But, concerning section 27 agency rule, that an (k), such as supoenas tecum, a factor duces there is providing procedure, for such a would be significance of more than the differences general statutory inconsistent with the discussed it and Rule authority agency under which funct very fact that was deemed above. ions.7 Congress necessary for an ex- to enact points authorizing subpoenas plicit The Commission to section 27 duces statute Shipping Act, of the tecum in order for exer- (1958), empowers pur- power is an indication of cise poseful by subpoenas tecum, withholding means of duces somewhat require production power similar, potent, of materials sim- but far more 204(b) 7. While section of the Merchant The first sentence of section reads: Act, providing purpose investigating Marine “For al- general rule-making power not, leged chapter, with does violations of Admiralty may by as in the case of Federal Maritime Board poena compel sub- Atlass, expressly volved in Miner v. for- the attendance of wit- gen- production books, pa- bid inconsistent with the nesses and the agency, pers, documents, eral a limi- such other evidence necessarily inferred, tation is from in the United States at any designated place hearing.” conceded the Commission. production for dis- of documents examination Examiner cari readily covery purposes. correspondence Commission’s ascertain what gov- 201.131-.133) possession (46 C.F.R. rules non-discovery erning sub- issuance of witness. Production of can be upon poenas procured subsequent sec- use at duces tecum are based sessions. pro- expressly correspond- I cannot believe comparable has no cedure. Rule sought ence here cannot obtained un- explicit statutory foundation. existing procedures. der valid agencies three At least federal appear than the have been vested prehearing inter- to authorize involving party discovery only case, of documents.910In each general rule-making does the power upon as is Com Mer mission LINES, HERDER TRUCK the Use Act,10 subpoena chant Marine but also Liberty and Benefit of Mutual Insur as is conferred Com Company, Appellant, ance mission 27 of the Congress Act.11 This indicates to us that America, UNITED STATES of agencies predi Appellee. did not intend federal procedures cate statutes No. 20958. conferring general rule-making or sub Appeals United Court of States poena power. Fifth Circuit. judgment is affirmed. July 29, 1964. Judge (concurring). POPE, Circuit My induced concurrence here is *7 my feeling pre-trial important

much in administrative less proceedings than in tried in a dis- cases cases, trict In the latter once court. begun expect trial would proceed the trial to to a with- conclusion interruption, out and to make their en- during case But with tire time. an ex- administrative procedure aminer is to take testimony sittings, often different cities, at more different wide- less ly separated its sub- intervals. With poena power compel can are, who the attendance witnesses parties, represent, who adverse (Interstate 12(4)-12(7) 825h, 825g(b) (Federal 9. 49 U.S.C. §§ Power Commis Commission); sion) Commerce 49 U.S.C. §§ . (Civil 1484(e)-1484(h) Aeronautics 12(1)-12(3) (Interstate 11. 49 §§ U.S.C. Board); 825f(d)-825f(f) §§ U.S.C. Commission); Commerce 49 U.S.C. §§ (Federal Commission). Power (a)-1484(d) (Civil 1484 Board); Aeronautics 17(3) (Interstate 825f(b)-825f(c) 10. 49 Com- 16 U.S.C. §§ Commission); 1324(a) (Federal Commission). merce 49 U.S.C. § Power (Civil Board); Aeronautics