FMC Says It May Subpoena Documents, Seek Testimony in Agreement Probes
The Federal Maritime Commission issued a “policy statement” this week to explain that it can use subpoena authority and other “administrative investigatory authorities” when probing agreements between and among ocean carriers and marine terminal operators that may be anticompetitive.
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The FMC said that once it opens an investigation on a carrier or MTO agreement filed with the commission, it “has authority to gather evidence from interested parties, subpoena witnesses and documents, and hold hearings” on the topic, all of which can be used to support the FMC’s request for a possible injunction of the agreement in a future court proceeding. It also said it can open certain investigations if “the FMC determines that information would be ‘helpful in the determination of its policies or the carrying out of its duties, including whether to institute formal proceedings directed toward determining whether any of the laws which the Commission administers have been violated.’”
After the investigation, the FMC would “evaluate the evidence” and may decide the agreement is “likely to have anticompetitive effects and issue a written report.” That report would qualify as “competent evidence in a court of the United States,” and could be submitted to a district court to help meet the FMC’s burden of proof.
The FMC stressed that the report wouldn’t impose civil penalties on any carrier or terminal, noting that the commission’s “sole remedy” is to seek an injunction. The report only would say whether the commission believes the agreement is anticompetitive, and it would include an “explanation of the agency’s reasoning and evidence in support of that determination.”