FMC examines appeal of clean trucks ruling

FMC examines appeal of clean trucks ruling    The Federal Maritime Commission is considering an appeal of last week’s denial by a U.S. District Court judge’s of its request for an injunction against aspects of the clean truck programs of the ports of Los Angeles and Long Beach.
   “We are examining our prospects for an appeal and a permanent injunction,” Commissioner Rebecca Dye told the National Customs Brokers and Forwarders Association of America (NCBFAA) at its annual meeting Tuesday.
   Last Oct. 29, a divided FMC found that implementation of certain portions of the clean truck programs were “likely, by a reduction in competition, to produce an unreasonable increase in transportation cost or an unreasonable reduction in service.”
   Dye and Commissioner Harold J. Creel Jr. voted over the objection of Commissioner Joseph E. Brennan to seek an injunction.

Dye

   Dye said the FMC was concerned about the “employee-driver mandate, incentive payments and provisions denying access to marine terminal facilities to certain harbor trucking providers” and “continues to investigate these potentially anticompetitive practices.”
   But last Wednesday Judge Richard J. Leon denied the commission’s motion for a preliminary injunction against the ports of Los Angles and Long Beach.

Creel

   “We are disappointed by Judge Leon’s ruling. Nonetheless, the core elements of our case under section 6(g) of the Shipping Act have been preserved for a determination on the merits,” Dye said. She noted that “last month in a directly related matter, the U.S. Court of Appeals for the Ninth Circuit ruled that many elements of the ports of Los Angeles and Long Beach programs, specifically the Los Angeles requirement for all drivers to be employees and the restrictions on the street parking of trucks, should be overturned.”
   Dye offered only limited comments on the NCBFAA’s own petition to the FMC that the agency exempt non-vessel-operating common carriers from the provisions of the Shipping Act of 1984 requiring NVOs to publish and adhere to rate tariffs in those instances where an NVO has individually negotiated rates with its shipping customers.

Brennan

   “Our staff is currently examining the comments received on the petition and will come to the commission shortly with a recommendation for action,” she said. “Since this petition is currently pending before the commission, I must limit my comments.”
   But she added, “As I have stated a number of times in recent years, given what appears to be the lack of practical usefulness of the current tariff system, I believe it is time to revisit the traditional notion of tariff filing and enforcement. Over 90 percent, and in some trades 95 percent, of freight carried to and from the United States is currently under contract.”
   Dye also updated members of the FMC on the widening use of NVO Service Agreements, which are similar to service contracts that steamship lines sign with shippers.
   Since the FMC’s decision to exempt NVOs offering NSAs from the tariff publication requirements of the Shipping Act, 724 NVOs have registered with the commission to offer NSAs.
   As of March 31, the FMC has received 2,874 NSAs and 3,952 amendments filed by 124 NVOs to take advantage of the new contracting option, she said.