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Ongoing Federal Maritime Commission and West Coast marine terminal operators talks are cited as the cause

LONG BEACH – 11/15/08 – The collection of fees generated by the Clean Truck Program (CTP) at the ports of Long Beach and Los Angeles has been indefinitely delayed until talks between Federal Maritime Commission staff and West Coast marine terminal operators over procedural issues are completed.

According to a statement released by the Port of Long Beach, the fee collection was scheduled to begin November 17, but “more time is needed to complete ongoing discussions…as the terminal operators are also reportedly working to finalize the controversial program's automated gate administration and fee collection process.”

The automated gate access and the fee collection systems will be used to finance the replacement of thousands of older diesel trucks currently used to haul cargo in and out of the ports’ many terminals.

The delay, the port said, will compel terminal operators to revert back to a temporary sticker system to determine which trucks to allow into port terminals.

Beginning October 1, the ports effectively banned diesel-powered trucks produced in 1988 and before. The CTP calls for trucks built in 1993 or before and un-retrofitted model year 1994 to 2003 trucks to be prohibited from operating at either port, effective November 1, 2010.

By 2012, nearly the entire truck fleet serving the ports – all vehicles 2006 and older will be banned.

The West Coast Marine Terminal Operator Agreement (WCMTOA) created the not-for-profit company PortCheck to collect the Clean Truck Fee to provide financial assistance for the replacement of as many as 10,000 trucks during the next three years.

Under the provisions of the CTP, the cargo owner (the party named on the bill of lading) is responsible for paying the Clean Truck Fee. The fee will be payable by credit card or electronic funds transfer, and must be paid before a container can enter or leave a terminal at either port.

The Clean Truck Program has come under fire from several industry groups including the American Trucking Association (ATA), which has challenged the program on the grounds that the Concessions Plan provisions of the CTP “violates federal mandates that preempt state and local laws impacting motor carrier rates, routes, and services.”

Late last month, the US Department of Justice (DOJ) filed a “friend of the court” brief in support of a challenge by the American Trucking Association (ATA) to a provision of the CTP.

The amicus curiae brief, in effect, endorsed the 37,000-member ATA’s argument that the Congress, the DOJ brief said, “understood that motor carriers cannot efficiently compete if states and localities are free to impose burdensome regulatory regimes controlling their operations,” adding that the application of the provision "is a matter of critical concern to the federal government.”

The DOJ submitted the brief because Congress has delegated to the US Department of Transportation the authority to implement that federal preemption provision.

The Port of Los Angeles has said its attempt to ban owner-operators is a “safety issue,” but the DOJ states the employee driver issue "has no relevance to motor carrier safety."

The action by the ports – the two busiest container ports in the country – “constitutes a licensing scheme for motor carriers, and state or local licensing of motor carriers is clearly prohibited by federal preemption statutes,” the DOJ said.

Both ports are also claiming an exemption from federal preemption on the grounds that they are “market participants in the procurement of trucking services” a claim that Justice said is "meritless" and stated that the ports "do not participate in any relevant market."

The ATA litigation is currently before the 9th US Circuit in an appeal of a District Court's refusal to enjoin the Concession Plans pending a final ruling on the Plan's merits.

The District Court determined that the Concession Plans provision directly impacts motor carrier rates, routes, and services, but found them to be protected from preemption because they advanced generally port safety and security interests. The federal preemption provision exempts from its reach state regulation of motor vehicle safety.

The ATA position was also supported by amicus filings by the National Association of Waterfront Employers (NAWE) and the National Industrial Transportation League (NITL), which, in its own filing, said that “the issue is not the goal of reducing harmful emissions, but the attempt to regulate trucks in contradiction of applicable federal law.”

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