ATA vs. LA/Long Beach port authorities: the battle continues
Update: 11-19-08 The Daily Breeze reports that the FMC is seeking an injunction against the Clean Trucks Programs of LA / Long Beach:
The Federal Maritime Commission on Tuesday asked a federal court to block portions of the Clean Trucks Program adopted by the ports of Los Angeles and Long Beach.
The three-member panel has harshly criticized the ports’ provision to require freight haulers to obtain “concession contracts” to access harbor terminals, saying it was anticompetitive.
The FMC is also asking the U.S. District Court in Washington, D.C., to block the Port of Los Angeles from requiring freight haulers to hire drivers as employees, leading to a gradual ban on independent owner-operator truckers within five years.
Here’s more from the Journal of Commerce. Arguments will be heard on December 5th.
Update: 10-30-08
Looks like the Department of Transportation and the National Industrial Transportation League have also filed briefs in support of the ATA:
The lower court erred in its interpretation of the safety exception of federal law when it permitted the Ports of Los Angeles and Long Beach to regulate drayage trucking, said the National Industrial Transportation League in a brief filed with the US Court of Appeals.
The US Court of Appeals for the 9th Circuit decided to allow NITL to participate as amicus curiae in support of a lawsuit filed by the American Trucking Associations seeking to overturn the ports’ concession licensing program for motor carriers operating at their facilities.
The Port of Los Angeles is promising that their clean-trucks program will continue, despite a possible injunction from the FMC on its controversial plan to ban owner-operators:
The Port of Los Angeles has vowed to maintain its licensing program for harbor trucking companies even if the Federal Maritime Commission succeeds in blocking enforcement of the employee driver requirement.
The FMC on Wednesday announced that it will sue in U.S. District Court in Washington to block certain provisions in the LA-Long Beach clean-trucks program that the commission believes are anti-competitive.
While the commission does not intend to challenge those aspects of the plan that are designed to reduce diesel emissions by 80 percent over the next five years, the commission expressed concern over certain licensing provisions, especially the Los Angeles requirement that motor carriers phase employee drivers into their fleets.
This week the ATA submitted comments in response to the FMC’s current investigation into the ports’ Clean Truck Program. Via Logistics Management:
“We also assert that the Agreement, in its current form, is unlawful and will adversely affect drayage services and prices,” said ATA spokesmen. “Moreover, any legitimate environmental and port safety elements of the CTP are already being implemented (as of October 1) by the ports through elements of the CTP that need not require motor carriers to become Concessionaires and otherwise comply with ports mandates.”
As reported in LM earlier this month, those mandates comprise the following: (1) establish the signing of a Concession agreement as a prerequisite to drayage carriers serving each port; (2) include a minimum set of complex and burdensome provisions in each Concession; and (3) mandate their tenant Terminal Operators establish a blockade of drayage carriers that do not accede to those Concession Agreement burdens.
Here’s more from the ATA website, where they announced that the Department of Justice filed and amicus brief in support of the ATA’s argument:
The ATA litigation is currently before the Ninth Circuit in an appeal of a District Court’s refusal to enjoin the Concession Plans pending a final ruling on the Plan’s merits. The District Court determined that the Plans directly impact motor carrier rates, routes, and services, but found them to be protected from preemption because they advanced generally port safety and security interests. The federal preemption provision exempts from its reach state regulation of motor vehicle safety. However, as the Justice Department brief observes, motor vehicle safety is a “circumscribed realm” that “does not encompass requirements loosely based in a general notion of public safety.” The federal government brief then notes that the broad construction made by the District Court would “permit the exception to swallow the rule” and points out several aspects of the Concession Plans that clearly have no relationship to motor vehicle safety and squarely fall within the scope of the preemption. These include prohibiting the use of independent contractors and imposing financial oversight of carriers granted concessions.
Breaking News: Court rules against LA/Long Beach Clean Truck Program | Third Party Logistics News - 3PLwire on Fri, 20th Mar 2009 4:09 pm
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