MTO Regulations

The FMC has regulatory authority over many, but not all marine terminal operators. Generally, only  MTOs that offer terminal services to common carriers in the foreign commerce of the United States are subject to FMC regulation.  Terminals that offer services only to common carriers by water engaged in the purely domestic coastwise, intra-coastal, or domestic offshore trades generally are not subject to regulation by the FMC.

Since 1992, MTOs have been exempt from the requirement to file their terminal leases and service agreements (agreements under which MTOs provide terminal services to ocean common carriers) with the Commission.   46 CFR §535.310. Nevertheless, each year a small and diminishing number of MTOs do choose to file their service agreements.  The vast majority of the MTO industry, however, does take advantage of the exemption.

An MTO is obligated to file a notice with the FMC that it will be providing regulated marine terminal services BEFORE it starts offering such services. 46 CFR 525.3(f). The notice is filed electronically by using the FMC-1 Form. There is no filing fee for submitting this notice.  

MTOs, at their discretion, may make their schedules of rates, regulations and practices (formerly called “MTO tariffs”) available to the public.  46 CFR § 525.2(a).  A complete and current set of MTO schedules must be maintained by the MTO in its office for 5 years, whether or not it is available to the public, and must be available to the Commission upon request.  46 CFR § 525.3(a)(3).

 

If an MTO chooses to make its schedule available to the public, it must be available during normal business hours and in electronic form, although a reasonable access fee may be charged.  46 CFR § 525.3(a)(2).  The MTO’s name and location of its schedule provided in the Form FMC-1 filing will be posted on a list on the Commission’s webpage. The names of MTOs that opt not to make their schedules available to the public are not posted, but maintained internally in the Commission’s Form FMC-1 database.  There are form and manner requirements for MTO schedules.  46 CFR § 525.3(g).

Many MTOs do publish a schedule of the rates, terms and conditions under which they offer their services because with such publication, any shipper or carrier customer that receives terminal services is deemed to have agreed to an implied contract at those published rates and terms. 46 CFR § 525.2(2).  The MTO remains free to negotiate a specific separate contract with a particular shipper customer that contains rates, terms and conditions that are different than those contained in the published schedule. 46 CFR § 525.2(3).

The MTO is also free to negotiate a contract with a carrier customer that departs from its published MTO schedule, but such a contract might constitute an agreement between a marine terminal operator and an ocean common carrier, as defined by Section 4(b) of the Shipping Act. 46 USC app. §1703(b).  There are exemptions from this agreement filing requirement. 46 CFR 535.307, 309 and 310.