ATA requests FMC block SoCal ports truck plan agreement
The American Trucking Associations has asked the Federal Maritime Commission to prevent an antitrust waiver agreement allowing the Southern California ports to cooperate on a trucking re-regulation plan from taking affect.
ATA has also requested that the FMC subject the truck plan to a 'competitive review and analysis,' and require the ports to answer previously proffered questions on the truck plan, and detail the 'planning and procedures to ensure a supply of drayage trucks and drivers,' after the truck plan takes affect Oct. 1.
The association, which last month filed a federal lawsuit against the neighboring ports of Long Beach and Los Angeles over a portion of the $2.4 billion truck plan, submitted the request as part of comments filed with the FMC Monday over an amended marine terminal operator's discussion agreement the ports filed with the commission on Aug. 1.
The agreement was originally filed with the FMC in August 2006 to allow the two ports to discuss planning and implementation of their omnibus Clean Air Action Plan, but contained no details of the since-approved truck plan.
Under federal law, the two ports as marine terminal operators are not normally permitted to cooperate under antitrust laws. To obtain an antitrust waiver, the ports must file an MTO discussion agreement detailing the nature and details of the proposed collusion for FMC review. The ports are required under the federal Shipping Act of 1984 to amend any such FMC agreement if topics outside those originally listed are to be discussed and acted on jointly by the ports. As part of the amendment process, the law provides for a public comment period.
ATA, which represents more than 37,000 trucking firms nationwide, alleges in its comments to the FMC that the ports are attempting to circumvent FMC authority to review the actual mechanisms of the truck plan for their legality under the Shipping Act. ATA points to language in the ports' amendments regarding an access license component of the truck plan, called concession agreements by the ports.
'The ports have artfully put before the commission an agreement that permits the ports to engage in unlimited 'discussion,' 'cooperation,' 'coordination,' and retention of 'common' contractors regarding port concessions, but that leaves the formal adoption of the concession mechanisms to the 'independent' judgment of each port,' ATA said in its comments.
Because the ports' amendment is not technically approved by the FMC, but reviewed and allowed to take affect if no conflicts with federal law are found, ATA alleges the ports are attempting to set up a system through the agreement where the FMC would never be in a position to review the actual access licensing mechanisms.
By including language in the amendment that allows the ports to decide 'independently' on the access licensing component, the ATA believes 'the ports (are attempting) to limit the commission only to review the framework for establishing the ports' concession programs, but to deny the commission an opportunity to review the programs themselves.'
ATA also said the fact that the two ports adopted slightly different access license criteria presents an anticompetitive burden. While the two ports jointly developed the overall truck plan, which seeks to replace or retrofit nearly 17,000 ports-servicing drayage trucks within the next five years, the two split ways on the access license portion of the plan. Long Beach port officials adopted criteria that would allow licenses to nearly all existing motor carriers. The neighboring Los Angeles port limits access licenses to motor carriers that use per-hour drivers instead of the per-load independent owner operators that make up more than 80 percent of the drayage workforce.
In its comments ATA cited a Port of Los Angeles study that estimated the adoption of the two different plans would 'increase drayage carriers' annual operating costs by $500 million' to allow drivers to access both ports.
This financial burden on the local motor carriers, argues the ATA, will 'not only adversely affect motor carriers and their customers through higher costs and poorer service, but also adversely affect other Shipping Act policies,' such as ocean carriers being able to efficiently execute FMC-filed Vessel Sharing Agreements.
In the case of filed agreements, the FMC has three options:
' Allow the agreement to move forward, in which case the agreement normally takes affect within 45 days.
' Ask the ports for more information.
' Seek to stop the agreement through court action.
The ports need the agreement in place to discuss certain key aspects off the truck plan's implementation and with less than 45 days to go before the Oct. 1 start of the truck plan, the ports could seek an expedited FMC review allowing the agreement to take effect much sooner. ' Keith Higginbotham