The ports of Los Angeles and Long Beach have weathered initial legal challenges to their clean-trucks programs and are poised to implement the plans on Oct. 1.

The 9th U.S. Circuit Court of Appeals on Wednesday denied a request by the American Trucking Associations for a preliminary injunction that would have blocked the concession requirements in the clean-trucks programs. Beginning Oct. 1, only motor carriers with port-issued concession agreements can serve the harbor.

In a separate action, the Federal Maritime Commission on Wednesday announced that it will hold a formal investigation that will look at nine specific provisions in the clean-trucks programs.

The order of investigation, however, does not prevent the ports from implementing their clean-trucks programs. If the FMC intends to block implementation, the commission would have to seek injunctive relief in a U.S. District Court, but it does not appear that the commission would do so by Oct. 1.

Therefore, it appears that beginning Oct.1, the ports will limit access to their marine terminals to motor carriers that have signed concession agreements. Drivers, as well, will have to present a federal Transportation Worker Identification Credential to terminal operators, or proof that they have applied for a TWIC card.

Although the ports are free to impose a $35 per-TEU clean-truck fee, the ports announced this week the computer system needed to process the fee won't be ready until mid to late October. They will then begin collecting the fee.

The 9th Circuit Court said the ATA did not present enough evidence to warrant injunctive relief.

"Appellant has failed to establish that it will be irreparably injured absent an injunction, or that the public interest lies in favor of an injunction," the court stated.

The ATA had argued that the ports' concession requirements violate the federal preemption statute that prohibits states and local entities from actions that regulate the rates, routes and services of motor carriers engaged in interstate commerce.

Although the appellate court intends to hear arguments from the ports, the ATA and intervening parties, the timetable allows the clean-trucks plans to begin on Oct. 1. The ATA must submit its arguments by Oct. 8 and the ports must respond by Nov. 5.

The FMC's order of investigation indicates that the commission has concerns about the Port of Los Angeles requirement that motor carriers phase in over the next five years the hiring of employee drivers. The Long Beach concession agreement would allow the use of owner-operators as well as employee drivers.

The order of investigation will also seek more information on provisions by the ports that will limit access to marine terminals by certain motor carriers. Also, the FMC is requesting more information on financial incentives offered by the Port of Los Angeles to determine if some motor carriers would experience discrimination in terms of assistance.

Peter King, acting FMC general counsel, said the order of investigation does not prevent the ports from implementing their clean-trucks plans on Oct. 1. An FMC administrative law judge will set a date to receive formal testimony on the clean-trucks programs.

By: Bill Mongelluzzo