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American Shipper

SoCal ports say FMC suit on truck plan ?without merit?

SoCal ports say FMC suit on truck plan ôwithout meritö

The ports of Los Angeles and Long Beach filed a joint response Saturday to a request in U.S. District Court by the Federal Maritime Commission to block certain portions of the ports’ trucking re-regulation program.

   The FMC, which oversees U.S. ocean-borne international commerce, alleged in its request in the Washington, D.C. District Court that components of the truck program cause an onerous financial burden on the transportation industry and U.S. consumers.

   The commission is seeking to block provisions adopted solely by the Los Angeles port version of the truck program — that local drayage firms only hire per-hour employee drivers and financial incentives offered by the port to only some trucking firms — in addition to a $35-per-TEU container tax to fund the truck program adopted by both ports.

   The ports charge in their response that the FMC suit 'reflects a profound misapprehension of the content and purpose of the statute the FMC purports to invoke,' that the agency does not understand 'general antitrust and competition principles,' is confused 'concerning the applicable standards in this circuit for the grant of injunctions,' and that the FMC committed 'sever procedural flaws' rendering the legal case 'unsustainable before this court.'

   The ports also argue the FMC request fails to meet four standard legal requirements to obtain an injunction, in that the commission has:

   ' Shown no likelihood of success on the merits.

   ' Failed to show irreparable injury.

   ' Shown no compelling evidence of particular active effects on the drayage market at the two ports.

   ' Engaged in no weighing of the equities nor any evaluation of the public interest.

   Citing several ports-requested academic reviews of the FMC determination that the ports violated the Shipping Act of 1984, the ports also charge that the FMC's original determination was 'fundamentally' flawed.

   'While this, perhaps, is predictable given the FMC's lack of experience and expertise in operational or competitive conditions governing domestic inland trucking, it is not the sort of record upon which this court should wield the extraordinary writ of injunction,' said the ports' filing.

   The ports also ask the court to summarily dismiss the FMC request on the basis of three allegations:

   ' The FMC case does not 'rise to the level of 'plausibly suggesting' actionable conduct' that will survive a full hearing.

   ' The agency simply does not have jurisdiction.

   ' The FMC violated federal environmental laws in reaching its original determination that the ports violated the Shipping Act.

   The Washington D.C. court has set a hearing on the FMC injunction request for Friday.

   It was revealed last week that U.S. District Court Judge Christina Snyder will hear a National Resources Defense Council lawsuit against the FMC alleging the federal agency violated federal environmental laws in bringing the suit against the ports.

   Snyder is the same judge that denied an American Trucking Associations request in September for an injunction blocking the implementation of the ports' trucking program.

   ATA and several other trade groups have requested that the Ninth Circuit Court of Appeals reverse Snyder's decision. The case before the appellate panel is expected to be decided later this month. ' Keith Higginbotham

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