Groups join FMC SoCal portsÆ truck case
A Federal Maritime Commission administrative law judge on Jan. 20 allowed three trucking industry trade groups and a coalition of environmental groups to join an internal FMC proceeding to determine whether portions of the Long Beach and Los Angeles ports' truck re-regulation program violate the Shipping Act of 1984.
The two ports had sought to block the industry trade groups, but not the environmental groups, from joining the proceeding.
Judge Clay Guthridge ruled that the Intermodal Motor Carrier Conference arm of the American Trucking Associations, the Owner-Operator Independent Drivers Association, the National Association of Waterfront Employers may join the proceeding as intervenors. Guthridge also allowed the National Resources Defense Council, the Sierra Club and the Coalition for Clean Air to jointly join the proceeding as intervenors.
In the proceeding, the industry groups are supporting the FMC position while the environmental coalition is supporting the ports.
In September 2008, the FMC initiated an investigation to determine if the two ports, as well as the cities of Long Beach and Los Angeles, violated three Section 10 articles of the Shipping Act. The FMC designated the agency's Bureau of Enforcement as a party in the case and ordered other persons having an interest in participating in the proceeding to file petitions with the FMC for leave to intervene.
The possible Shipping Act violations stem from the two ports' jointly developed truck program, which seeks to replace more than 19,000 drayage trucks servicing the two ports with less emissive and newer models in an effort to cut emissions generated during port service. In late 2007, the two ports each adopted slightly differing versions of the jointly developed truck program and the two ports began implementation of portions of the program on Oct. 1.
A key component of both ports' version of the truck program is a fiat that trucking firms wishing to continue servicing the two ports after Oct. 1, require a ports-issued access license. To obtain an access license, trucking firms must agree to various stipulations and criteria, defined differently by each port. Trucking firms wishing to access both ports require a separate access license from each port.
The main portions of the truck program being scrutinized by the FMC are requirements by the Port of Los Angeles that to obtain an access license trucking firms must hire only per-hour employees and not per-load independent owner-operators that make up more than 80 percent of the drayage fleet workforce.
Additional aspects of the Los Angeles version of the truck plan being investigated by the FMC include:
' Financial incentives offered by the Los Angeles port to certain truck program trucking firms but not to others.
' Denying access to port terminals if trucking firms do not have port-approved arrangements to park their vehicles on off-street premises.
Elements of the truck program being investigated by the FMC that cite both ports include:
' Exemptions to a container tax for some trucking firms but not others.
' Requiring trucking firms to obtain access licenses without first developing standards and criteria for judging such applications.
The FMC has proposed two remedies if the proceeding finds the two ports violated the Shipping Act: either civil penalties will be assessed or the 'appropriate cease and desist orders should be issued.'
If the proceeding finds the ports are in violation of the Shipping Act, the full FMC board would then need to concur with the findings and the recommended penalties.
In a separate, but similar track, the FMC is also requesting a Washington, D.C. District Court to block portions of the truck plan for violations of section 6 of the Shipping Act.
On Jan. 8, the presiding judge in the District Court case, Judge Richard J. Leon, ruled that many of the same groups — including the environmental groups and NAWE — could not join the case as amicus curiae, or friends of the court.
The FMC's District Court case began in October 2008 when the commission concluded that portions of the Southern California ports' trucking re-regulation program would result in a reduction in competition and substantial increases in transportation costs and asked the court to block these portions.
The FMC is also reviewing an antitrust waiver requested by the two ports that would allow the two authorities to collude on implementing a $35-per-TEU container tax to raise funds for the truck program.
The review period ends on Feb. 13, at which time the commission may take no action and allow the agreement to take affect, or the panel may ask for further information on the issue from the ports. A final recourse for the commission is to seek an injunction against the ports, as it has in the case before Leon.
On Jan. 19, the two ports announced they would begin collecting the $35-per-TEU container tax beginning Feb. 18.
The two ports are facing a funding crisis over the more than $2 billion truck program. The state has frozen state bond money that was to go toward financing truck loans and grants until the ports' container tax could be implemented. The loss of these initial state funds, and a potential injunction against the container tax, would mean that the truck financing would have to be financed by the two ports directly. However, both ports are reeling from one of the worst cargo volume and revenue generating quarters in the past 20 years. Officials at the Port of Los Angeles have predicted that cargo volumes, and their related port revenues, could drop 20 percent to 30 percent in the first quarter of 2009.
Guthridge also ruled that all the parties to the injunction case must deliver a jointly developed court schedule for the case by Feb. 3. ' Keith Higginbotham