ATA seeks emergency injunction against SoCal truck plan

The American Trucking Associations has filed an emergency motion with an appeals court seeking an immediate injunction against the Southern California ports truck re-regulation plan.



ATA's action comes days after asking the federal Ninth Circuit Court to overturn a District Court decision rejecting an injunction against portions of the Los Angeles and Long Beach ports truck plan.



The association, which represents more than 37,000 trucking firms nationwide, cited the impending Oct. 1 start of the ports?truck plan in making the filing.



As detailed in this emergency motion, ATA's members will face immediate irreparable harm arising from forced changes to their business structure and unrecoverable loss of income if the order denying (ATA's lower court injunction request) is not reversed prior to Oct. 1, said the trade group in its brief filed late Friday.



The ATA, in the 24-page emergency motion, requests that the Ninth Circuit Court either issue an injunction pending a determination by an appeals panel or on emergency briefing and hearing schedule that enables this Court to issue its determination on the merits no later than Sept. 30. Last Tuesday, District Court Judge Christina Snyder ruled that the ports of Long Beach and Los Angeles successfully proved that an access license, or concession agreement, portion of their trucking plan is exempt from the federal preemption argument made by the ATA in its lower court request.



However, the court, in an overbroad interpretation of the safety exception to Federal Aviation Administration Authorization Act of 1994 (FAAA) preemption, sided with the ports and determined that the security aspects of the ports?plans were sufficient to qualify the entire agreements as exempt from preemption,?said ATA attorneys Thursday in their filing to appeal the lower court decision.



Under the Ninth Circuit Court's schedule presented to both sides after the filing Thursday, the ATA was given until Oct. 8 to submit its arguments and the ports were required to respond no later than 28 days later.



Given that the concession plan requirements take effect Oct. 1, ATA members require emergency relief in the form of either an injunction or an accelerated schedule and decision, said the ATA in its emergency motion filing on Friday.



A day earlier, the Federal Maritime Commission took action Thursday that could delay the planned Oct. 1 start of the ports?trucking re-regulation plan.



In a 2-1 vote, the commission decided to request additional information regarding a ports-filed amendment to an antitrust waiver that detailed how the ports would implement the truck plan.



The agreement was originally filed with the FMC in August 2006 to allow the two ports to discuss planning and implementation of their omnibus Clean Air Action Plan, but the filing then contained no details of the truck plan that has since been approved by the ports.



Earlier this year the two ports filed an amendment to the agreement, adding specific details of how the truck plan components would be implemented.



Under federal law, the two ports are considered marine terminal operators (MTOs) and as such are not normally permitted to cooperate under antitrust laws. To obtain an antitrust waiver, the ports must file an MTO discussion agreement detailing the nature and details of the proposed agreement for FMC review. The ports are required under the Shipping Act of 1984 to amend any such FMC agreement if topics outside those originally listed are to be discussed and acted on jointly by the ports.



FMC issued the request for information to attorneys for the two ports Thursday, saying that while it was not its intention to delay implementation of the agreement, the Shipping Act equires the commission to fully analyze the agreement that is now before it. FMC is seeking answers to dozens of detailed questions, many dealing with the potential impacts of the truck plan on such things as the national economy, local workers, and security within the ports.



It's questionable whether the ports would be able to satisfy the FMC request for additional information and receive approval for the agreement from the FMC in time for the planned Oct. 1 start date of the truck plan. On April 3, the FMC began a similar process of requesting information from the ports over a similar agreement, which did not see that particular agreement take affect until June 13, more than two months later.



Port of Los Angeles Executive Director Geraldine Knatz, speaking at a public forum on the truck plan Friday, said the FMC request for additional information would not delay the Oct. 1 start date.



Port of Long Beach officials said they were aware of the FMC request and planned to issue a statement later today, but declined to comment further.



FMC officials said that while the ports original FMC agreement remains in effect, and the ports can still discuss the truck plan in general, the language added by the ports in the amendment -- including the truck plan details -- cannot be acted upon at this time.



The truck plan details in the amendment include a ban on all pre-1989 trucks, the collection of a clean truck fee, and the adoption of an access license program.



The FMC said the ports may not move forward on the details in the amendment until after the ports respond to the commission request and the it reviews the answers. If the ports decide to move ahead with the implementation of the truck plan prior to this review, it would open the ports up to legal action by the FMC, the agency said.



The ports $2.4 billion trucking plan, which seeks to replace or retrofit nearly 17,000 short-haul drayage trucks that regularly service the two ports, was introduce in early 2007 and approved by the two ports earlier this year.



Meanwhile, the National Industrial Transportation League said it is preparing to wade into the Los Angeles-Long Beach trucking controversy.



Based on this action and the rationale expressed by the judge for her decision, as well as the potential service failures that could be experienced in the ports once the truck concession program becomes fully operational, the league has decided to move forward by filing a friend of the court (amicus) brief in support of ATA's chief argument that the truck program is preempted by federal law. As part of this effort, the League is also coordinating with other groups who share and support this view, the NIT League said in an article in its newsletter.



The NIT League added that in its brief it will also emphasize that it supports the ports' clean air initiatives including efforts to retire the use of older trucks in an orderly fashion from the ports' operations, and their replacement with newer, cleaner vehicles. The truck concession initiatives are part of the ports' Clean Trucks Program and include in the case of Los Angeles a prohibition on the use of owner-operator drivers at that port's facilities.

Source: American Shipper