FMC Commissioner Dye Comments on LA/LB Clean Trucks Program, Etc. at NCBFAA Conference
The Federal Maritime Commission has posted comments by Commissioner Rebecca Dye on the implementation of the Ports of Los Angles and Long Beach Clean Truck Program (CTP), among other things, during the April 21, 2009 National Customs Brokers and Forwarders Association of America Annual (NCBFAA) Conference.
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Commissioner Dye notes that her remarks reflect her own individual views and are not offered as the official position of the FMC.
FMC is Examining Prospects for Appeal, Permanent Injunction Against CTP
Dye stated that FMC was disappointed by a U.S. District Court Judge's ruling denying FMC's motion for a preliminary injunction against certain aspects of the CTP. Nonetheless, the core elements of its case under section 6(g) of the Shipping Act have been preserved for a determination on the merits, and FMC is examining its prospects for an appeal and a permanent injunction.
(In September 2008, FMC initiated an investigation to determine whether certain practices of the Ports of Los Angeles and Long Beach violate the Shipping Act of 1984. Dye noted that FMC continues to investigate these potentially anticompetitive practices. In October 2008, FMC filed a complaint with the U.S. District Court for the District of Columbia to enjoin aspects of the CTP, including the (i) employee-driver mandate; (ii) restriction of independent owner-operators; and (iii) truck purchase incentives, fees, etc.
On April 15, 2009, U.S. District Court Judge Leon denied FMC's motion for a preliminary injunction. See ITT's Online Archives or 04/20/09 news, 09042020, for BP summary of the denial of FMC's request for preliminary injunction. See ITT's Online Archives or 11/12/08 news, 08111220, for BP summary of the FMC's motion, with links to other relevant notices.)
Ports Argue for Review to Continue Concession Programs, Hearing on April 27th
In a related case, in March 2009, the U.S. Court of Appeals for the Ninth Circuit ruled that many elements of the Ports of Los Angeles and Long Beach programs, specifically the Los Angeles requirement for all drivers to be employees and the restrictions on the street parking of trucks, should be overturned, and ordered a preliminary injunction to the American Trucking Association. (See ITT's Online Archives or 03/23/09 news, 09032305, for BP summary of Court of Appeals ruling in favor of the ATA.)
The 9th Circuit ruling left it up to the U.S. District Court, Central District of California to grant as to whether or not to enjoin the Ports' entire concession programs or just portions of each.
Dye stated that the Ports have argued for an issue-by-issue review that seeks to continue in place as much of their concessions programs as possible. A further hearing is scheduled in Los Angeles on April 27, 2009.
(At the NCBFAA conference, Commissioner Dye also reiterated previous comments where she: (i) advised against major deregulatory reform in current economic conditions; (ii) discussed revisiting traditional tariff filing and enforcement under certain non-vessel ocean common carrier (NVOCC) service contracts; and (iii) expressed that differences will likely remain between European Union and U.S. ocean regulatory systems due to U.S. antitrust immunity. See ITT's Online Archives or 04/07/09 news, 09040720, for BP summary of Dye's previous comments on these issues.)
(See ITT's Online Archives or 04/22/09 news, 09042205, for BP summary of Long Beach's vote to eliminate the clean trucks fee for certain trucks, postpone the Infrastructure Cargo Fee, etc.
See ITT's Online Archives or 02/18/09 news, 09021810, for BP summary on the collection of the CTF beginning February 18, 2009.)
Commissioner Dye comments (dated 04/21/09) available at http://www.fmc.gov/speeches/newsrelease.asp?SPEECH_ID=274