ATA asks FMC to strike down SoCal truck plan agreement
An arm of the American Trucking Association has asked the U.S. Federal Maritime Commission to block a key component of the Long Beach and Los Angeles ports' attempt to overhaul the Southern California drayage system.
The 26-page filing from the ATA's Intermodal Motor Carrier Conference charges the two adjacent ports with implementing an 'unlawful 'concession' mechanism' and requests that the federal agency block a two-week-old administration agreement between the two ports that the ATA claims will make the ports' terminal operators 'day-to-day enforcers' of the ports' truck plans.
The ports and members of the West Coast Marine Terminal Operators Agreement filed the agreement with the FMC on Feb. 14. The agreement asked the FMC to grant antitrust status to the ports and terminal operators for the sake of discussing and reaching 'agreement on implementation and/or administration of various portions of the Clean Air Action Plans that have been adopted by the ports’ Boards of Harbor Commissioners.' The drayage overhaul plan, approved by Long Beach two weeks ago and still awaiting final approval by Los Angeles, is a major component of the two ports' omnibus environmental planning document, the CAAP.
The ports' trucking plan, as approved by Long Beach, calls for the creation of a concession scheme that would require ports-servicing trucking firms to obtain a ports-issued license to gain access to any of the two ports facilities. To obtain a license, a trucking firm must meet a lengthy list of ports-defined criteria covering everything from maintaining proper documentation to allowing the ports to approve potential buyers of a trucking firm. The Long Beach version did not stipulate that a trucking firm had to hire employees or independent owner operators.
Los Angeles is expected to vote on an almost identical concession scheme in the coming weeks. The Los Angeles version, however, is expected to contain language mandating that trucking firms hired only per-hour employees and not per-load owner operators.
In its filing, the ATA charges the ports with trying to circumvent federal law governing interstate commerce by the adoption of the concession scheme. The filing claims that because local regulation of interstate commerce routes and services is a power expressly granted to the federal government, the ports are trying to evade this federal pre-emption. In doing so, the ATA argues, this blockading of the terminals to drivers without a ports license is conduct that is 'unreasonable' under the Shipping Act.
The ATA filing cites a lawsuit decided two weeks ago by the U.S. Supreme Court that struck down a Maine law that sought to impose regulations on Maine's trucking industry.
Curtis Whalen, executive director of the ATA's Intermodal Motor Carrier Conference, said the Supreme Court’s decision clearly identifies Congress’ preemption goal to be an assurance that carrier rates, routes and services are structured via “competitive market forces” and not because of governmental commands.
Whalen also pointed out that in the decision the court found that the pre-emption should be applied to any state law “having a connection with or reference to carrier rates, routes, or services,” and that state laws having only an “indirect effect” on those elements of a carrier’s operations are pre-empted if they have a significant impact.
In its FMC filing Monday, the ATA requests the agency to use its Shipping Act power to 'request more information regarding the nature, operation, legality and impact of rules to be enforced through the blockade provisions' of the concession mechanism. The ATA said that once the FMC receives that material requested, the agency 'must reject the (ports/WCMTO) Agreement, with the proviso that it may be resubmitted once its unlawful provisions are removed.'
After an investigation, the ATA asks the FMC to reject or require modification to the agreement.
Without the ports/terminal operators' agreement in place, the two sides would not be permitted to discuss the plan and the ports concession plan, if implemented, would be unenforceable.
The ATA is also asking the FMC to clarify that the ports cannot use other portions of the agreement to accomplish the same goal of implementing the concession plan.
Despite the ATA naming both ports equally in the filing, an International Brotherhood of Teamsters-fronted coalition took the filing as an opportunity to blast Long Beach Mayor Bob Foster and Long Beach port staff for dropping the employee-only mandate from the concession model. The Teamsters have pushed for the employee-only mandate as a first step towards organizing the port drayage drivers.
'Mayor Foster's primary rationale for breaking a key partnership with the Port of L.A. to adopt a half-baked scheme that lacked an employee component — to avoid litigation — has been completely shredded by the ATA,' said Patricia Castellanos, Coalition for Clean and Safe Ports chair, in a release.
As written the two ports' versions of the concession plan differ by one sentence — namely by Long Beach including language to allow owner-operators, employees or any combination of the two to be hired by ports-licensed trucking firms under the plan.
Last year, the ATA joined with the Pacific Merchant Shipping Association and the National Industrial Transportation league to ask the FMC to investigate the two ports' trucking plan. While the FMC collected statements and information from the numerous parties involved, the agency has yet to issue a determination on the question of whether the truck plan violates interstate commerce laws.
The ATA, as well as a number of groups representing retailers, have threatened to sue the ports over the trucking plan, though no suits have yet been filed.
At a transportation industry conference Monday, the IMCC's Whalen reiterated previously made statements that any ATA lawsuit against the ports' truck plan is likely to win quick injunctive relief against the plan. Whalen said this would delay implementation of the truck plan for at least 18 months at which time statewide truck emission plans by the California Air Resources Board would supersede the ports' plan. ' Keith Higginbotham
