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    News

    Intermodal Carrier Conference Of American Trucking Ass'ns Challenges Ports' Cleaner Truck Program, Files Comments With Fed'l Maritime Admininistration Urging Agency To Block Cleaner Truck Requirement


    (March 4, 2008) -- In a twenty-six page legal filing, the Intermodal Carriers Conference of the American Trucking Associations has submitted comments to the Federal Maritime Commission (FMC) charging that the cleaner trucks program approved by the Port of LB (without a labor component) and by the Port of L.A. (with a labor component) violate the federal Shipping Act.

    The comments by ATA, the nation's largest trucking interest group, urge the federal agency to reject or require removal of parts of the Ports' truck programs that ban older, dirtier trucks.

    ATA filed its comments in response to a routine Feb. 21 notice by the FMC allowing comments under the Shipping Act of 1984 on various agreements...which included the Ports' implementation agreement authorizing the Ports "discuss and reach 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."

    In response, ATA's filing argues that any attempt by the Ports to create "criteria and procedures to be used to determine the right of admission or non-admission of trucks, cargo or equipment to any and all terminals at the ports" is illegal, calling them "blockade provisions."

    After citing various court decisions and federal statutes, the ATA filing states, "[T]here can be no reasonable question but that that function of the blockade provisions of the Agreement is to enforce a concession mechanism preempted by federal law. Prompt Commission action to receive the offending provisions from the Agreement would best serve the salutary goal of cleaning up drayage diesel trucks."

    The Coalition for Clean and Safe Ports (comprised of 30+ environmental, public healthy, community, labor and religious groups) promptly cited ATA's filing to criticize LB Mayor Bob Foster (whom it has separately criticized in three full-page Press-Telegram ads) for supporting the Port of LB's stance -- which doesn't include employee provisions -- on grounds this might avoid a legal challenge.

    "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, chair of the Coalition.

    However in its filing, ATA took aim at both Ports' clean truck programs...arguing that the mandatory exclusion of older, dirtier trucks in both of them is preempted by the federal Shipping Act. ATA acknowledged that LB's version of the clean truck program didn't include "egregious conditions that would exclude owner-operator drayage trucks from the port" but said [n]evertheless, the Los Angeles Harbor Board has not acted yet, and we have reason to believe that the Los Angeles Board may include restrictive provisions regarding owner-operators in their concession program."

    The ATA filing asks the FMC to prohibit the Ports of LB and L.A. from discussing proposals that would require motor carriers to sign concession contracts that include operational standards. Instead, ATA recommends that the Ports rely on CA Air Resources Board drayage truck regulations (which take effect in two years)...and charges that the Ports clean truck program will delay cleaner air.

    "It is the ports' misguided efforts to imposed [sic] extraneous economic and social mandates on the trucking industry that has led them to attempt an unlawful concession program and unnecessarily delay achievement of the precise environmental objectives they claim are their highest priority," the ATA filing says.

    If the Federal Maritime Commission were to halt the clean truck program, one consequence could be to halt the Port's locally-imposed container fee to fund Port infrastructure. That linkage (first reported by LBReport.com) tying collection of the PoLB container fee for Port infrastructure to continued enforceability of PoLB's clean truck program was explicitly urged in January 2008 Harbor Commission testimony by LB Mayor Bob Foster.

    The Harbor Commission agreed to the linkage...and the resulting Port container fee for infrastructure contains the following verbiage:

    "A fundamental objective of the Clean Air Action Plan is to facilitate growth in trade while substantially reducing the impact of trade, not only on a per unitbasis but in the aggregate. Consistent with that premise, Section 11 of Tariff No. 4 is hereby amended to provide that the infrastructure fee can only be collected if the truck fee can be collected."

    Environmental groups took aim at the ATA for its FMC filing. "The message to elected leaders with a green growth mandate is that this industry accustomed to polluting for free will fight any and all attempts to be held accountable for clean-up efforts," said Adrian Martinez, an attorney with the Natural Resources Defense Council in a release.

    "Mayors Villaraigosa and Foster must stand up to corporate clean-air opponents and stand with the environmentalists, public health advocates and the community to fight for the strongest possible standards. It's the only way to protect children and all of Southern California from toxic diesel emissions."

    As originally proposd last year, the LB and L.A. Ports' joint Clean Trucks Program would have required that the trucking firms to, in effect, take responsibility for new trucks by employing their drivers. In a break with L.A. Port officials, LB Port officialdom removed that labor component, effectively putting the financial cost of replacing and maintaining the roughly old diesel port trucks with a new clean-burning fleet on individual port drivers...who on average earn about $29,000 a year.

    LB Port officialdom, backed by Mayor Foster, Councilman Gary DeLong and the Press-Telegram editorially, have variously argued that it's not the Port's responsibility, or the Port's proper role, to regulate or dictate employee relationships.

    "Why should Southern Californians settle for a scheme that includes anything less than the cleanest available trucks driven by a stable, employee workforce?" responds Rupal Patel of Communities for Clean Ports. "We need the highest clean-air standards to end the industry's decades-long practice of padding its profits by using the oldest, dirtiest trucks, and forcing Californians to sacrifice their health and tax dollars to foot billion-dollar bills."


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