FMC warns SoCal ports to keep commission in the loop

The Federal Maritime Commission on Tuesday warned the ports of Long Beach and Los Angeles that their $2.4 billion trucking re-regulation plan requires further documentation and government review before it can move forward, according to a letter obtained by American Shipper.

In a letter to attorneys for the ports and the West Coast Marine Terminal Operators Agreement, the FMC said the Southern California marine terminal operators should not implement portions of the truck plan as mandated by the ports until port officials amend two previous antitrust agreements with the commission to reflect all ports-approved details of the truck plan.

Any such agreements must be timely filed with the commission to allow for the review and analysis, the FMC said in the letter. Such provisions should not be implemented prior to such filings with the commission. Given the FMC's typical two-month time frame to review even expedited agreements, the letter raises further questions of whether the ports would be able to make the plan's proposed Oct. 1 start date.

The truck plan, which seeks to replace nearly 17,000 drayage trucks in the ports-servicing fleet with 2007 or newer model year vehicles by 2012, mandates that marine terminal operators serve as gatekeepers and enforcers for the plan. However, marine terminal operators have raised concerns the ports are requiring them to take part in a plan that is being challenged in court.

The American Trucking Associations is suing the ports in federal court alleging the truck plan violates federal interstate commerce laws. While a U.S. District Court judge sided with the ATA on its major arguments, the judge found in favor of several smaller arguments brought up by the ports and denied the trucking association an injunction against the plan. A U.S. Ninth Circuit appellate panel is expected to rule on the ATA appeal of the lower court decision within the next several days. The full ATA suit has yet to be heard by the lower court.

Under federal law, the ports are considered marine terminal operators and are not allowed to collude on issues -- or with other marine terminal operators -- without first obtaining an antitrust agreement from the FMC that details the nature of the collusion (see timeline of related FMC filings).

In Tuesday's letter, the FMC reminds the ports that when the commission in June allowed the early effectiveness of an agreement enabling the ports and marine terminal operators to discuss the truck plan, the commission forewarned the ports that any ey developments?in the truck plan must be filed immediately with the FMC.

The FMC noted in June that the ports did not provide enough details of the truck plan for a full review. The commission tentatively allowed the agreement to take affect so the ports could develop these details with the marine terminal operators with the caveat to keep the FMC informed of all new developments.

The commission adds that since the June agreement was allowed to take affect, the ports have approved numerous details of the truck plan. These details of the plan, according to the letter, include:

   Development and implementation of a ports-commissioned Drayage Truck Registry.

   Installation of truck identification readers.

   Development and implementation of a ban on all pre-1989 model year trucks from entry into the ports.

   Development and implementation of a system to collect a $35-per-TEU container tax to fund the truck program.

   However, the commission letter said the ports have not followed through on providing the details to the FMC. Based on various public disclosures, the FMC said in the letter, certain ey developments of the Clean Truck Plan to be implemented by the marine terminal operators are now known. In the letter, the FMC demands the ports file additional antitrust agreements to provide these details and not move forward with the letter cited provisions of the truck plan until the commission reviews the filings.

Source: American Shipper