American Trucking Association Expresses Concern Over L.A., L.B. Clean Truck Plans

The American Trucking Association has said that the port of Los Angeles' truck concession plan violates federal law and has filed a petition with the Federal Maritime Commission to intervene and issue a directive to Los Angeles' Harbor Commission. What are the merits of the petition that the Trucking Association has filed?

First of all, it's not a petition. We filed comments with the Federal Maritime Commission (FMC). In the routine course of port business, the ports and terminal operators will file what they call a "discussion agreement request." The FMC has 45 days to approve that filing. Most often, discussion agreements simply go into effect with no FMC comment.

A discussion agreement under the Shipping Act allows the participants to meet and discuss prices, practices, and anything else they want to under total anti-trust protection. The IMCC is already on record in other FMC related proceedings as opposing these antitrust protected discussions. We don't like the concept that other intermodal stakeholders can get together with anti-trust immunity and discuss business practices and requirements that otherwise impact truckers. Our filing here targeted the ports' clean truck implementation process. This is not a trigger event initiating the lawsuit, which will come soon. What made it particularly important in this case is, unlike the usual process, the FMC notified the ports on March 28 that they were tolling the 45-day approval clock and that they would be seeking additional information from the ports and terminal operators on the details of the discussions and the potential system impact that plan implementation could cause. Importantly, the questions that the FMC sent were incredibly detailed and will require a good deal of work on the part of the ports to answer them and provide the FMC assurances that the ports know what they're doing, and that their plans will not harm or disrupt the marine transportation system at America's largest port complex

The conference filing is not a complaint. We asked the Commission not to approve the discussion agreement until they asked the ports some important questions concerning plan impacts and legal justification. We are pleasantly surprised that they indeed asked a lot of very detailed questions. We think the level of their questions clearly reflected their concern and their knowledge of what's actually at stake.

What concerns are your members raising about both port Clean Truck Programs-Los Angeles and Long Beach?

The key issue is the port trying to implement a Teamster-supported, illegal employee-driver mandate in Los Angeles. The Teamsters persuaded L.A. City Hall to support a mandate that the motor carriers who will be allowed to operate at the port environment under the clean truck proposal would have to use employee drivers and not independent owner operators drivers which the Teamsters can not organize.

We totally oppose that requirement on both practical business grounds and, as a deregulated industry, on legal grounds-a local port authority will be federally preempted from implementing these type of truck operational requirements which clearly impact the rates, routes, and services of the industry.

Are you taking the position that the Clean Truck Plan in and of itself is a violation of the federal deregulation? Or are you saying that the employment mandate is the problem?

We believe that the actual truck retirement mandate by a local entity, to take trucks that are otherwise legal and ban them from transportation service, is arguably beyond the jurisdiction of local governments. Allowing this local control would create a patchwork of operational motor carrier rule which would disrupt the free flow of cargo. But, because California trucking members do indeed support clean air and clean trucks, the industry is not challenging the truck retirement tariff. We indeed support the truck retirement and upgrading process if it is administered fairly, does not unnecessarily disrupt business, and has sufficient funding to be effectively implemented.

Now that the ports have formerly acted on their plans, how is ATA and your conference reacting?

We are currently in negotiations with the Port of Long Beach. While we certainly applaud their effort to move forward without the Teamster provision, we do have some problems with their contractual concession requirements approach. For example, one provision requires that, before any motor carrier who is a concessionaire can sell the company, he/she has to first get port approval. That's obviously something that we believe is illegal and would never agree to. And they have some other contractual restrictions that we think are also not legally justified, but we are working with them to provide solutions which should give them the level of comfort they want regarding program compliance. Those discussions are still ongoing and I am hopeful that, as we proceed, we will not have to include Long Beach in planned litigation. Ulike L.A., Long Beach focuses on clean trucks and not driver unionization.

We are now working on our final filing documents to initiate legal action on both the merits of the case, and we are also on seeking an injunction to stop plan implementation until the court renders a decision on the merits.

It was suggested in the hearings on the Port of L.A. plan that because of the action taken, the execution of the plan could be dragged out in ten years of litigation. Is that a likely prospect?

I don't think it's ten years. It could well be three-plus years. Based on the existing law and our recent Supreme Court victory on February 20, on a 9-0 vote, our lawyers believe this could be over very quickly because the federal preemption law is clear...maybe the ports will throw in the towel and it could be over quickly.

The most recent Supreme Court case was Rowe vs. New Hampshire Motor Truck Association. It dealt with the state of Maine's attempt to require motor carriers to inspect their cargo to ensure that tobacco products weren't somehow getting delivered to the minors. The court said that while the inspection requirements by the state had a laudable motive, the rational behind trucking deregulation were quite clear: competitive forces, not government mandates, are what is supposed to shape truck transportation. L.A.'s plan is clearly an example of government mandating operational business practices, which we believe will be preempted. Quite frankly, ports have no background or expertise in truck operations. Their historic role is simply to be the leasing agents for the port property.

In last month's issue of the Metro Investment Report, IWLA's Patty Senecal suggested it would be extremely difficult for truckers to work with two different, side-by-side policies. What complications may arise at the ports with two different trucking plans in place?

Her description was accurate. One of the things that was a little surprising when the ports broke ranks and moved in different directions was that both ports and virtually everyone else on the West Coast insisted that there was no way they could establish or implement separate clean truck programs. The traffic patterns and activity at the ports are commingled in many areas. A ship may land at one facility but have cargo going to both ports. Obviously motor carriers may have to operate at both facilities during a single move. To try to balance logistically who's driving what cargo where, and whether they're an employee or an owner-operator, would be virtually impossible and would inject driver-utilization inefficiencies that this driver-short industry can not afford.

The FMC seems to understand that there is a real efficiency issue here in the ability of trucking to meet cargo demand, and has indicated in its questions that the ports going on different operational tracks raises many legal and operational concerns.

Supporters of the L.A. plan focus on economic studies that show that port truckers, the majority of whom are contract drivers paid by the load, earn about $12 per hour after expenses and are thus incapable of meeting the Clean Truck objective of buying and maintaining a clean truck. How do you respond to this critique?

These studies generally have a very narrow survey scope and do not reflect the actual wage picture for most drivers. There are many, many drivers who work for my members, make a very good living, like the fact that they run independent small-businesses, and do not want to be employee drivers. I know the Teamsters have drivers coming into port hearings to say that they can't make enough money to maintain their trucks or support their families. My question to them is, "If you're only making $8 an hour, why don't you go find another job?" If you're not making it as a port trucker, they are many well-paying driver jobs in the industry if you have a good driving record and can get a soon-to-be-required Transportation Workers Identity Credential. Look in the local newspaper and on the internet for local listings and you will routinely find "employee" jobs for truck drivers.

What is ATA doing to advance clean fuel and engine technology?

Trucks are the most visible component of the intermodal transportation in and around ports, but of all the participants, we believe we are far more advanced in the use of biodiesel and clean fuels. We already have EPA mandates for using clean '07 engines and '10 engines.

If you look at the bill that Senator Boxer introduced a couple months ago, it correctly identified that 70 percent of all the diesel emissions in the ports come from the foreign-owned ocean carriers-not from the trucks. We don't get much credit for what we have already done, but we are far ahead of the other transport modes.

When it comes to the environmental community, I think they are doing a great disservice to their own membership-they should focus on clean air and not support the Teamsters' plan to add to their membership ranks. Motor carriers do support clean air; we are willing to move forward with truck retirement proposals in California. But we are not willing to have our businesses redone at the demand of the Teamsters so they can get their unionization efforts on track.

If, in a year, we conduct a follow up interview, what will be the status of the litigation?

If our lawyers are right, we will have beaten back the port of L.A., and potentially other California and West Coast port facilities, which may be considering implementing the Teamster mandate. We will have also provided a clear legal federal preemption precedent limiting local intrusion of motor carrier transportation operations. We will probably be on our way to having other ports implement workable clean truck programs. There are a lot of things that can be done by the intermodal business sector to improve the air quality in and around ports and the whole state.

One of the things that's unfortunately being lost in the debate in California is that motor carriers are working with other stakeholders in the intermodal industry to modify and use the very robust databases that are already used to facilitate the interchange of cargo and equipment within the ports. If we can get that database modified and deployed, we will have a national solution which will improve operational efficiencies and facilitate a more "seamless" intermodal cargo movement.