According to ATA publication Transport Topics, in its notice filed with the San Francisco-based 9th U.S. Circuit Court of Appeals, ATA said its primary ground for appeal will center on Los Angeles U.S. District Court Judge Christina Snyder's "error of law" in ruling that the port could ban independent drayage operators because it was acting as a "market participant" and not as a regulator in implementing its diesel emissions plan.
ATA also said it will likely call for an "expedited" stay by the court to block the port from moving forward with its clean trucks plan if the court agrees to hear the appeal.
As Truckinginfo reported last month, Judge Christina A. Snyder of the U.S. District Court for the Central District of California found that the concession program is legal because the port is a private business and is thus exempt from the law that says only the federal government has the authority to regulate trucking business operations.
The Port of Los Angeles, noting that with the decision put the majority of the port's fleets out of compliance with their concession agreements, said its staff will recommend to the Los Angeles Board of Harbor Commissioners an adjusted schedule for implementation of certain provisions of the concession agreement that were previously enjoined by the federal court.
Port staff will recommend approval of an adjustment for the phased-in schedule dates for Licensed Motor Carrier (LMC) compliance with the employee driver requirement, job referral services requirement and the off-street parking requirement:
* 20% gate moves by employee drivers by December 31, 2011
* 66% gate moves by employee drivers by December 31, 2012
* 100% gate moves by employee drivers by December 31, 2013
As local LA reporter Keith Higginbotham writes on the Long Beach Post's website, "The ruling and the legal basis behind it were greeted with surprise by many in the transportation industry because both Judge Snyder and the Ninth Circuit had previously dismissed the 'market participation' argument."
Higginbotham, who previously was the West Coast editor for the trade magazine American Shipper, wrote that "many members of the industry who followed the case had expected Judge Snyder to uphold certain previously-blocked portions of the truck plan, including an access license scheme that would require truckers to adhere to various port-defined criteria to obtain port access. However, the conventional wisdom was that the judge would also strike down the most contentious of those criteria--a requirement that trucking firms servicing the port only hire per-hour employee drivers."
The port's concession program, and especially this provision, is a matter of deep concern to trucking and shipping interests not just in California but around the country.
The program has by all accounts done a good job of cleaning up truck engine emissions in and around the port, but it includes provisions that restrict trucking operations, including one that would ban owner-operators from providing drayage service and require all drivers to be employees of companies. This alarms carriers and shippers because it would open the door for unionization of port drivers. And the Teamsters union has made no secret of its desire to unionize drayage drivers at LA and other ports around the country.