SoCal ports slam ATA request in letter to FMC
Los Angeles and Long Beach port officials, only recently breaking ranks on contentious labor details of a port trucking equipment overhaul plan, have put aside their differences to ask federal regulators to reject a request by the American Trucking Association to block the entire program.
The ATA's Intermodal Motor Carrier Conference, in a 26-page filing to the FMC two weeks ago, charged the two adjacent ports with implementing an 'unlawful 'concession' mechanism' in the guise of the truck plan. The ATA requested that the federal agency block a now month-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 the members of the West Coast Marine Terminal Operators Agreement filed the referenced administration 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 a month ago and set for an upcoming vote 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 a similar concession scheme on Thursday. The Los Angeles version, however, contains language mandating that trucking firms hire only per-hour employees and not per-load owner-operators.
Officials from the two ports filed their response to the ATA's FMC request on March 11. The ports describe the ATA comments as 'legal arguments premised on substantial misapprehensions or misstatements' regarding the nature of the administration agreement.
The ports also contend that the ATA filing is a 'responsive comment' and the process for the ports' original filing on an administration agreement does not provide for such comments.
One of the main arguments made by the ports to squash the ATA filing is that because nothing in the truck plan referred to by the ATA has yet been formally implemented by the ports, the ATA cannot claim that the ports are violating federal law.
'In essence,' said the ports' letter, 'the ATA is attempting to entice the commission into premature actions on matters that are not now, may never be, ripe for FMC review.'
The ports' letter also that because the administration agreement does not specifically mention details of the plan, the ATA cannot bring in details of the plan created under the agreement.
'While it is possible that the (ports and WCTOA) may discuss or even agree upon the implementation of policies relating to motor carriers, the substance of any such policies will be decided outside this' administration agreement, the letter said. 'The time for any challenge to such policies would be when and if the ports adopt them.'
Ironically, Port of Los Angeles Executive Director Geraldine Knatz, in an opinion piece posted Friday by the Torrance Daily Breeze, made it clear that just such an adoption would occur this Thursday by the Los Angeles port's harbor commission.
Curtis Whalen, executive director of the IMCC, said the ATA continues to work with Long Beach port officials to address the group's concerns with the truck plan.
'Long Beach officials have said that the (truck plan) is a living document,' Whalen said. 'We are putting that to the test.'
The ATA has given up talking to Los Angeles officials, however, describing Los Angles port officials' attitude over addressing industry concerns with the truck plan as 'unresponsive.'
Whalen said the ATA is considering filing a new version of their complaint to the FMC if Los Angeles harbor commissioners approve the port's version of the truck plan on Thursday.
While the ATA has said it would sue, under certain conditions, if the ports implemented the plan, Whalen said that Thursday's Los Angeles commissioners meeting is not likely to be an immediate trigger of litigation. Whalen said that once the ports actually approve a plan and require area trucking firms to make some sort of decision, then ATA is likely to move forward with litigation.
In a separate filing with the FMC, the National Resource Defense Council defended the two ports' actions and slammed the ATA's request to the FMC. The NRDC, in its eight-page letter dated March 10, make many of the same arguments against the ATA filing as the ports' March 11 comments, including that the ATA 'does not provide a rigorous legal argument in opposition' to the ports' truck plan.
While the NRDC is highly supportive in their FMC comments of the two ports' efforts on the truck plan, the group has threatened to sue the Port of Long Beach over the truck plan.
In addition to litigation threatened by the NRDC and the ATA over the truck plan, a group of industry associations representing the retail industry are moving closer to possible litigation over a $35-per-TEU container tax approved by the ports to raise $1.6 billion to pay for the truck plan.
Whalen said that time is running out to reach a cooperative agreement on how to clean up the environmental issues regarding the ports' drayage trucks.
'The clock is going to catch up with everybody, no matter which side of this you are on,' he said. ' Keith Higginbotham