L.A. Port Staff Suggests Delaying Start Date of Owner-Operator Ban Until End of 2011

This story appears in the Sept. 27 print edition of Transport Topics.

Port of Los Angeles staff members are recommending that harbor commissioners push back until the end of 2011 the first phase of the port’s clean trucks program requiring that employee-only drivers move drayage trucks.

The port announced the recommendation Sept. 17, three weeks after U.S. District Court Judge Christina Snyder issued a ruling that the port’s employee-only concession plan is legal and that rejected claims by American Trucking Associations that banning owner-operators from the port is a violation of federal law.

The plan originally was scheduled to begin at the end of 2009 but was postponed after Snyder issued a temporary injunction. Earlier this month, however, she lifted the injunction and left the port free to move forward with all aspects of the program, including requirements related to truck maintenance, parking, financial capability and placards.

A port spokesman said harbor commissioners are planning to discuss the staff recommendations and how to proceed on implementation of the clean trucks program at their Sept. 27 meeting.

“Now that we have won the case, the port would like to implement the full concession as soon as it is reasonably practicable, but adjust the schedule to allow both our port staff and our motor carriers to prepare for compliance with some of the remaining program elements,” Geraldine Knatz, the port’s executive director, said in a statement.

The staff recommendation, if approved by harbor commissioners at their Sept. 27 meeting, requires that 20% of a company’s gate moves be done with employee drivers by Dec. 31, 2011. By the end of 2012, the port would require that percentage to jump to 66%, and to 100% by the end of 2013.

In her ruling, Snyder said the port met the legal test to exempt it from federal law that gives the federal government the right to regulate interstate commerce because it was acting in its role as a business, and not a regulator.

The Federal Aviation Authorization Act of 1994 gives the federal government the authority to regulate interstate trucking and does not allow states or local governments to implement regulations that interfere with the motor carriers’ “prices, routes or services.”

ATA gave notice earlier this month that it is appealing Snyder’s ruling to the 9th U.S. Circuit Court of Appeals and will ask the appeals court for an expedited stay to block the port from implementing the plan until all the legal issues are resolved at the appellate level.

In its Sept. 16 notice filed with the appeals court, ATA said its primary grounds for appeal will center on Snyder’s “error of law” in ruling that the port could ban independent drayage operators because it was acting as a “market participant” in adopting its diesel emissions plan.

“In our appeal, we are challenging each of the erroneous rulings made by Judge Snyder on matters of law and, in particular, her ruling on the market participant defense,” Curtis Whalen, executive director of ATA’s Intermodal Motor Carriers Conference, told Transport Topics.

“We are also raising as a potential issue on appeal the evidentiary rulings Judge Snyder made preventing ATA from accessing documents and evidence which the Port of Los Angeles contends are protected by the deliberative process privilege,” Whalen said.

Port officials have argued that they cannot maintain their diesel emissions program over the long term without employee drivers because most independent operators do not have the financial wherewithal to purchase new clean trucks and maintain them in good operating order.

The port’s staff also said it plans to recommend deferring the required use of job referral services from a workforce development office, intended to encourage hiring of experienced drayage drivers, until the port can enter into a contract with a service provider.

The staff also will recommend that motor carriers have until Jan. 1, 2011, to submit an off-street parking plan and until July 1, 2011, to implement that plan.