Court Enjoins 7 of 18 Requirements in LA/LB Clean Trucks Program

The Port of Long Beach has also issued notice of the actions it is taking in light of the rules that were preliminarily enjoined, as well as a revised drayage service concession agreement.

Injunction Largely Mirrors Tentative Ruling of April 27

According to Trucking.org, the court's April 29 ruling did not alter the decisions presented in its April 27 tentative ruling, but, in footnotes, provided some additional instructions to the ports. (In particular, the court warned the ports against excluding qualified motor carriers (footnote 4), explained the decision to enjoin the collection of concession filing fees (footnote 16), and declined a request by L.A. to be allowed to apply the employee mandate requirements otherwise enjoined by the injunction if motor carriers assented voluntarily to comply with them (footnote 21).)

Clean Trucks Concession Agreement Requirements Enjoined by Court

The Court based its decision primarily on whether the ports' Clean Trucks Concession Plan requirements are likely, at trial, to be pre-empted by federal interstate commerce laws, or instead are likely to fall within the "safety exception" that permits states to regulate motor carriers engaged in interstate commerce as to matters of safety, regardless of whether such regulations duplicate other state or federal laws or regulations. On the basis of the requirements being unlikely to fall within the safety exception, the court enjoined the ports from requiring drayage concessionaires to:

transition to 100% employee drivers, as opposed to independent contractors;

hire drivers experienced in serving the ports in preference to other drivers;

demonstrate "financial capability";

notify drivers of available health insurance programs, including those identified by the port;

submit plans on the parking and driving itineraries of trucks serving the ports;

cause all trucks to comply with the ports' Clean Truck Program;

pay application fees and annual concession fees for each truck;

keep and report records, and participate in audits, other than in regard to information specifically pertaining to safety, as listed below.

The court also denied a motion by the plaintiff, American Trucking Associations, Inc., to consider all aspects of the ports' plan as a whole and enjoin it entirely, opting instead to break its requirements into "separable" items.

Clean Trucks Concession Agreement Features Allowed to Stand

Determining that the other requirements were likely to fall within the safety exception at trial, the court allowed the ports to require that concessionaires:

be properly licensed motor carriers;

use permitted trucks (and provide the required information to the ports' registry);

be responsible for the regulatory compliance and the performance of drivers;

maintain and present records on driver qualifications and training, vehicle maintenance, safety inspections, controlled substance and alcohol testing;

ensure driver enrollment in the Transportation Worker Identification Credential (TWIC) Program;

equip trucks so as to permit instant verification of each vehicle's identity and its compliance with the Clean Trucks Program, using digital radio transmitters;

use trucks that comply with all security laws and regulations;

post placards on trucks, at least while on port property, referring the public to a phone number for the Concession Administrator regarding emissions, safety and compliance;

provide up-to-date records to the ports' Drayage Truck Registry, Concession Registry and Driver Registry, of information specifically pertaining to safety regulations;

carry liability insurance, automobile insurance, and workers' compensation insurance.

Port of Long Beach Lists Changes, Revises Drayage Concession Agreement

The Port of Long Beach (POLB) has also published a list acknowledging those requirements of the Concession plan that it will not enforce as a result of the court's April 29 preliminary injunction. In its release, POLB points out that its truck phase-out plan remains in effect, since its Tariff No. 4, which also addresses this plan, was not affected by the court order. Accordingly, POLB marine terminal operators will enforce the truck phase-out, POLB states.

With respect to the parking and driving route requirements enjoined from implementation by the court, POLB points out that state and local laws in this regard will continue to be enforced by the appropriate law enforcement agencies.

Regarding requirements for indemnity and insurance, which the court partially enjoined to the extent they were not insurance-related, POLB provides some guidance more explicit than the language in the court order, to the effect that POLB will not require indemnification and hold-harmless agreements, or accident reports.

In addition, POLB has posted a revised drayage service concession agreement necessitated by the court's action.

See ITT's Online Archives or 04/29/09 news, 09042910, for BP summary of American Trucking Associations, Inc. listing of the features of the Clean Trucks Concession Plans enjoined by the court in its tentative April 27 ruling.

See ITT's Online Archives or 05/01/09 news 09050199 for BP summary of Trucking.org report on the final ruling.

Long Beach Port press release (dated 05/01/09, posted 05/06/09) available at http://www.polb.com/civica/filebank/blobdload.asp?BlobID=6338

Long Beach Ports revised drayage service concession agreement (posted 05/06/09) available at http://www.polb.com/civica/filebank/blobdload.asp?BlobID=6337

LA Port press release (dated 04/29/09) available at http://www.portoflosangeles.org/newsroom/2009_releases/news_042909_ctpruling.pdf

U.S. District Court, Central District of California, Western Division, "Order Granting in Part and Denying in Part Plaintiff's Motion on Remand for Entry of Preliminary Injunction of Counts I and II of Complaint," available via e-mail by sending a request to documents@brokerpower.com .