ATA arm asks FMC to reject SoCal ports waiver regarding truck program
The Intermodal Motor Carriers Conference filed comments Monday with the Federal Maritime Commission calling the Southern California ports' recent antitrust agreement regarding its drayage overhaul program as 'simply unlawful.'
The IMCC, an arm of the American Trucking Associations that represents more than 37,000 motor carriers nationwide, asked the FMC in the comments to 'act expeditiously' to eliminate portions of an agreement filed Oct. 8 by the ports of Long Beach and Los Angeles that require drayage motor carriers to obtain access licenses from the ports to continue serving the ports.
The access license requirement, called concession agreements under the two ports' trucking re-regulation program kicked off Oct. 1, is also the core issue in a lawsuit ATA brought against the truck plan that is moving through a federal District Court. A related case seeking an injunction against the ports' truck plan is also moving through the Ninth Circuit Court of Appeals after being denied by the lower court.
First announced early last year, the truck program seeks to replace nearly 17,000 drayage trucks serving the two ports with newer models by enacting three major components:
' Banning all pre-1989 model year trucks from entering the ports.
' Levy a $35-per-TEU tax to pay for the truck replacements.
' Require all motor carriers entering the port to have a ports-issued access license.
While all were to start Oct. 1, the tax has been delayed due to technical problems.
The two ports must file an antitrust waiver with the commission to collude either between themselves, or with other marine terminal operators, on plans such as the truck program. The ports have filed two such agreements related to the truck program.
Several weeks before the ATA filed its lawsuit in late June, the FMC asked the two ports to clarify language in the second waiver filed with the commission and provide specific details of the truck program.
While the FMC allowed the second waiver to take effect, the commission forewarned the ports that it would require further details of the truck program as they were finalized by the ports and that the commission could re-evaluate the FMC review of the waiver at any time. The ports' responses to the FMC request led to an ongoing investigation of the truck program by the commission over possible violations to the federal Shipping Act of 1984.
Instead of amending the first two waiver requests, the ports instead on Oct. 8 filed a third waiver related to the truck program, providing many of the details the FMC originally sought.
The IMCC comments to the FMC argue that the ports' Oct. 8 waiver 'includes provisions that mandate collective port action to exclude drayage carriers that do not accede to a list of burdensome and costly requirements' through the access license process. The comments also allege that the ports' Oct. 8 waiver — specifically, language detailing the access license component — violates the Shipping Act by requiring marine terminal operators to act as gatekeepers of the truck program and deny trucks not meeting truck program requirements.
'The commission should find that the (waiver) presumptively will operate unreasonably to raise drayage costs and decrease drayage services in violation of the Shipping Act unless and until the (access license portions) are removed,' the IMCC filing concluded.
The FMC said that even if the Oct. 8 waiver is allowed to take effect, it would not stop the commission's investigation of the truck program.
The ports, meanwhile, continue to move forward with further implementation of the truck program. Since taking effect Oct. 1, the program has caused few of the congestion problems or truck shortages feared by many in the industry prior to its launch. However, most industry watchers acknowledge that it will probably take several months to determine a full statistical picture of the daily impacts of the truck program on such aspects as cargo volumes, rates and available drayage truck supply. ' Keith Higginbotham