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SoCal ports file response on truck program injunction

SoCal ports file response on truck program injunction

The Ports of Long Beach and Los Angeles last week submitted their response in a U.S. Ninth Circuit Court case seeking to block portions of the ports' trucking re-regulation program that began Oct. 1.

   The 95-page filing was in response to an appeal by the American Trucking Associations requesting the Ninth Circuit overturn a lower district court refusal in September to issue an injunction blocking the truck program's launch.

   The Circuit Court, however, refused to officially file the ports' response, citing several minor technical issues with the documents. The court gave the ports five days to correct the problems and resubmit the filing.

   ATA, in its Oct. 8 request to the appellate court, argued that the ports' truck program attempts to supersede federal laws concerning interstate commerce, and if fully implemented would cause irreparable financial harm to the trucking industry serving the two ports.

   The truck program, ostensibly created to replace the more than 19,000 short-haul trucks servicing the two ports with newer and less-emissive trucks, has evolved into a more than $2 billion program also dictating employee status and offering financial incentives to some, but not all, participants in the local drayage industry.

   On Oct. 1, the ports launched two of three major components of the program:

   ' A progressively stricter ban on older model trucks that will effectively block all pre-2007 model vehicles from entering the ports after Jan. 1, 2012. Currently the program bars all pre-1989 model year vehicles, with the ban expanding over the next three years.

   ' Requiring all trucking firms wishing to serve the two ports to sign an access licensing agreement with the ports. The agreements require the trucking firms to disclose internal business data to the ports, agree to certain maintenance and safety requirements, and in the case of the Los Angeles port, hire only per-hour employee drivers.

   Implementation of the program's third component — to raise funds to buy newer trucks with a $35-per-TEU tax on each drayed container moved in and out of the two ports — was initially delayed by technical problems, and two weeks ago was blocked by the Federal Maritime Commission pending legal action in a Washington, D.C. District Court.

   ATA and other trade groups are seeking to block several aspects of the truck program, most notably the access license component. The plaintiffs have not opposed the ports' progressive ban on certain truck models or the container tax.

   In the ports' response to the Ninth Circuit, port attorneys reiterated many of the same arguments that led to the successful lower court ruling refusing ATA's request for an injunction.

   In the lower court case the ports argued:

   ' They were essentially sovereign authorities not subject to federal interstate commerce laws.

   ' The ports' regulations are not superseded by federal law due to several federal exemption clauses.

   ' The truck program's health benefits outweigh any possible financial impact on the tucking industry.

   While the lower court agreed with most of ATA's argument, the injunction was refused because the court decided that claimed safety aspects of the truck program qualified the program for an exemption to federal preemption. The court also sided with the ports' argument regarding the preeminence of the public health impacts of blocking the program.

   However, in the Ninth Circuit Court response, the ports have refocused the main thrust of their argument to highlight the aspects of their original arguments that the lower court agreed with.

   The ATA said it would file a follow-up response to the ports' filings. A decision from the Ninth Circuit on the appeal is likely to be issued later this month.

   The appellate court, which in October refused an ATA request for an emergency injunction against the truck program, could decide to uphold the lower court denial, remand the injunction case back to the lower court with legal clarification of where the lower court erred in its decision, or simply decide to issue the injunction from the Ninth Circuit bench. ' Keith Higginbotham

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