July 17, 2009
Port of Oakland Commissioner President Victor Uno Commissioners Batarse, Jr., Calloway, Gordon, Head, Katzoff 530 Water Street Oakland, CA 94607 RE: Opposition to Port of Oakland's Draft Resolution to United States Congress (Julv 21.2009 Board Agenda Item)
West State Alliance (WSA) is a local non-profit association comprised of Port of Oakland trucking companies. We established the Truck Working Group and work jointly with the Port to plan and run monthly meetings of benefit to Port transportation interests. WSA is the voice of the Port of Oakland trucker and a real stakeholder in the Oakland port community. WSA does not support Port of Oakland's proposed resolution to ask Congress to amend the Federal Aviation Administration Authorization Act (FAAA) and give West Coast ports the authority to implement regulatory controls for port trucking companies.
WSA does not support this amendment for the following reasons:
1) The Port of Oakland resolution states the Port is acting on behalf of the six major container ports operating on the West coast. However, we are not aware of one of these six ports having had a public meeting, board agenda item or a vote to support Oakland's resolution. Thus, we suggest your resolution is not representative of the "West Coast Ports" and should be drafted to reflect a position that is representative only of the Port of Oakland. 2) Oakland's draft resolution states, "the current system of federal laws and regulations relating to Port operations does not sufficiently allow West Coast Ports to create comprehensive and legally supportable programs to increase and maintain operational efficiency of various maritime operations, including programs relating to environmental concerns, emissions reductions, security and infrastructure funding."
West State Alliance • PO. Box 24372 • Oakland
94623 • 510.903.1868
This statement is false in the following ways:
Environment: The Port of Oakland already has adopted a "Clean Truck" plan and is using the truck ban schedule and truck emission standards in the California Air Resources Board's (CAR B) Drayage Truck Program; (http://www.arb.ca.gov/msprog/onroad/porttruck/porttruck.htm). The CARB regulation takes effect only six months from now. Specifically, trucks with model year 1993 or older engines will no longer be allowed into the ports and intermodal rail yards in California starting January 1, 2010. Trucks with model year 1994 through 2003 engines must be equipped with an ARB approved Level 3 control device starting January 1, 2010. The trucking industry has not challenged CARB's state-wide Drayage Truck Program nor LAlLB's more aggressive ban schedule. On December 12, 2008, the California Air Resources Board (ARB) approved a new regulation to significantly reduce emissions from existing on-road diesel vehicles operating in California. The regulation requires affected trucks and buses to meet performance requirements between 2011 and 2023. By January 1, 2023 all vehicles must have a 2010 model year engine or equivalent. Affected vehicles include on-road heavy-duty diesel fueled vehicles with a gross vehicle weight rating (GVWR) greater than 14,000 pounds, yard trucks with offroad certified engines, and diesel fueled shuttle vehicles of any GVWR. Out-ofstate trucks and buses that operate in California are also subject to the regulation (http://www.arb.ca.gov/msprog/onrdiesellonrdiesel.htm). The unchallenged environmental regulations are in place until 2023 and thus, this resolution is not necessary. On June 19, 2009, six members of the California Democratic delegation sent a letter to Senator Oberstar. The delegation letter states "the early and unprecedented success in emission reduction and job creation". So why is it necessary to amend the FAAA for air quality when the Democratic delegation's own letter commends the air quality progress?
Port Security: The letter to Senator Oberstar and the Port of Oakland's resolution states this action is necessary for port security. The Federal Government is responsible for Homeland Security and in 2008 and 2009 implemented the Transportation Worker Identification Credential (TWIC) program at all U.S. ports. All port drivers, whether employee or owner-operator, must have a TWIC card to enter a marine facility, with no exceptions. The TWIC WSA Letter to the Port of Oakland Page 2
card requires a federal background check; digital prints and supporting identify documents. Thus, as of the present time, a federal driver security system has been implemented. Since 9/11, The Oakland Port Commissioners have not raised any driver security concerns nor requested that Oakland truckers be more accountable to homeland security issues. Now, the Port of Oakland is raising security concerns without first attempting a local remedy. Since the Port trucking community and American Trucking Association never tried to block the implementation of the TWIC card, please explain what gaps in security now exist that you are blocked from addressing on a local level. Are not security issues handled effectively by marine terminal operators who have the responsibility for filing a security plan with the port?
Safety: The Congressional letter and the Port's resolution state that this action is necessary for truck safety. Vehicle safety is under the jurisdiction of the California Highway Patrol (CHP) and Federal Motor Carrier Safety Administration (FMCSA). They have volumes of regulations in effect to ensure the safety of drivers, equipment and motor carriers. We urge the Port to meet with CHP to discuss more enforcement options. Port of Oakland can provide terminal space for CHP inspections and, if necessary, compensate the CHP for additional commercial safety officers at the Port. It is premature to seek a Federal amendment when resources from local law enforcement agencies have not been fully utilized.
Port Efficiency: Efficiency concerns raised in the Port resolution are local issues among the Port of Oakland, their marine terminal tenants, the ILWU, and local trucking companies and are not within the purview of federal government regulation. The Port manages these relationships through the tenant lease agreements and by exercising their jurisdiction with marine terminal operators by setting standards for truck through-put. Thus, the Port is empowered to manage these relationships without an FAAA amendment. Furthermore, the WSA Truck Working Group (TWG) is available as a mechanism for the Port to use toward improving MTO efficiency. (Please contact us as soon as possible to set a TWG meeting for this purpose.)
3) The Port of Oakland's budget and volume shortfalls should be of highest priority. The staff time and resources used to lobby for an FAAA amendment would be better served enlisting the resources of local governmental agencies that have appropriate jurisdiction (Californian Air Resources Board, California Highway Patrol, etc.).
WSA Letter to the Port of Oakland
4) The Port of Oakland Commissioners are charged by the Public Trust Doctrine of the California State Lands Commission, in which it is stated: "It is a title held in trust for the people of the State that they may enjoy the navigation of the waters, carry on commerce over them, and have liberty of fishing" free from obstruction or interference from private parties. Historically, the trust's purposes have been, and remain, water related; and thus, the state's obligation is to manage the tidelands in accordance with the purposes of the trust for all of the people of the state. The draft amendment may be in breach of the Tidelands Trust due to the use of Port money to peruse a thinly veiled labor organizing scheme. The Commission's responsibility is to operate and build terminal facilities, and to maintain waterways, not to attempt a re-regulation of the trucking industry! Instead, we invite the Port to work cooperatively with local motor carrier operators and drivers to achieve the mutual goals of a better environment, enhanced safety and improved security. This amendment represents a needless maneuver since local remedies have not been explored or employed.
5) The Port of Oakland's resolution is a reaction to a March 20 ruling from a three-judge panel of the U.S. Court of Appeals for the 9th District to a suit brought by the American Trucking Association (ATA). The court ruled that all or major parts of the LAlLB Ports Concession Plan are an unconstitutional interference in interstate trade. The judges' opinion makes clear that the ATA does not oppose the environmental components of the plan-namely, the rolling year targets for truck bans. In the wake of the panel's ruling, the Port of Oakland has indicated its intend to adopt a resolution requesting revision of federal law and, in so doing, change the contours of the playing field for independent truckinq. It should be noted that the Port's reaction is a result of the Interstate Commerce Clause doing exactly what it was intended to do: Prevent local municipalities from imposing their political whims on an industry. Attached is a Los Angeles Times editorial (dated April 24, 2009) pointing out the consequences of overreaction by the ports in their ill conceived attempt to overturn protections guaranteed by the Interstate Commerce Clause. The editorial states ".. . if they can't win in court, they will lobby Congress to change the law, an interminable process that promises only to heighten confusion in the truckinq industry and potentially delay compliance with the ports' clean-engine rules." We have a better idea for Oakland: Work with the trucking industry-which has no objection to the initiative's environmental requirements-to come up with a plan that cuts pollution without interfering with interstate commerce. That wouldn't be hard to do, if politlclans, labor leaders and environmental activists would stop putting up roadblocks.
WSA Letter to the Port of Oakland
In its Drayage Truck Program, the state of California is silent on who can obtain funds or be permitted to drive a compliant truck. The state simply sets the air quality emission standards and does not discriminate on who can drive a truck. Successful efforts at environmental compliance at the Port of LAlLB have been driven by private industry stepping up to bring in new trucks. This was done without an amendment to the FAAA.
6) Port of Oakland's Good Neighbor Policy states "We strive to listen, educate and
involve the community in our planning process." We would like to remind the Port that the motor carriers, their office workers and the drivers live, work and raise families in Oakland. We are part of the community and think our community needs to be included in your planning process. The Commissioners' rush to adopt this resolution runs counter to the Port's avowed position of openness to the opinions of stakeholders in making decisions affecting Port operations. The intent of this resolution is to empower the Port to regulate the drayage trucking industry without input from the very truckers who serve the Port, namely the owner-operators who represent some 95% of Port container transportation. How can the Port purport to value the opinions of all stakeholdersand just as importantly, acknowledge the need for regional economic growth-when the voices and interests of primary motor carriers, owner-operators and other types of drayage business are ignored or not engaged? West State Alliance strongly encourages the Port to back up its good intentions as stated in your Good Neighbor Policy; listen, educate and involve the trucking community and drivers in your planning process. This means demonstrating the respect due the many small business owners who work day in and day out serving the Port with overland transportation, and adopting a truly open and inclusive process when it comes to regulatory practices affecting our industry. The trucking community and owner operators who serve the Port deserve much of the credit for the Port's success over the past 30 years of operation. Yet, the proposed amendment belies the vital role of independent trucking as a key element in the Port economy. Has an economic analysis been performed to determine how many workers-from back office jobs within trucking companies, to owner operatorswill be put out of work by the Port's attempt at economic re-regulation of the market place and the port trucking industry? We welcome having the Port set achievable standards for local trucking, and in return, we ask to allow the competitive rigors of the market meet these standards.
7) As expressed
in the Port resolution, WSA agrees with the assessment that improvements to ports in Canada, Panama and Mexico directly threaten the future success and competitive market share of the West Coast ports. These shifts in
WSA Letter to the Port of Oakland
cargo movement demand we focus intently on that which is in our immediate control, namely internal threats to commercial viability. Oakland is well situated, sitting between LA/LB, the dominate West Coast Ports, and the Pacific Northwest. Yet, in our own Port policies we run the risk of adopting self-defeating practices that drive more cargo to the Pacific Northwest or East Coast. Oakland is losing cargo volumes, a condition of great concern to all of us. We caution that amending the FAAA will not return cargo to our port, but a willingness to work with national shipping organizations, local trucking and the warehousing industry can result in development of a competitive local plan that helps to restore the Port's prominence as a transportation hub. Please duly note our opposition to the proposed resolution and the reasons contained herein. The WSA remains committed to the Port community we operate within as we, too, live, work and raise our families in or near the surrounding communities.
Ronald Light Acting Executive Director cc: Senator Allan Lowenthal, Chair Transportation Committee Assembly member Bonnie Lowenthal, Select Committee on Port Chairman Oberstar; Committee on Transportation and Infrastructure Members of Congress: Grace Napolitano Linda Sanchez Loretta Sanchez Bob Filner George Miller Ellen Tauscher
WSA Letter to the Port of Oakland
Clean trucks for L.A.'s ports
Reducing pollution at the L.A. and Long Beach ports should be the goal, not unionizing drivers. Monday is shaping up to be a bad day for the Teamsters, Mayor Antonio Villaraigosa and a handful of environmental groups, whose efforts to unionize port truckers will probably be squelched by a federal judge. That's just as well, but we're afraid the mayor and his union backers won't take no for an answer. The clean-truck program at the ports of Los Angeles and Long Beach, a long-overdue attempt to reduce the diesel pollution that sickens and kills thousands of Angelenos every year, forces truckers to buy cleaner, more modern vehicles and imposes a fee on shipping containers that pass through the ports in order to help pay for them. None ofthat is controversial, and if that were all the program did, it wouldn't be enriching an armada of lawyers. But it also contains concession agreements that the U.S. 9th Circuit Court of Appeals has determined will probably be ruled unconstitutional. At the Port of Los Angeles, the program would eliminate independent truckers, insisting that they all be employees of drayage companies by 2013 (opening the door for the Teamsters to unionize them). The Port of Long Beach doesn't insist on employee truckers, but it does impose other requirements that may not pass legal muster. That's because U.S. law forbids local jurisdictions from making rules that affect the price, route or service of motor carriers. In response to a lawsuit by the American Trucking Assn., U.S. District Judge Christina Snyder refused to issue an injunction against the ports' concession agreements because of a loophole in the federal law: States are still allowed to impose safety requirements on trucks. But the appeals court overruled her, finding that few provisions of the concession agreements have anything to do with vehicle safety, and it remanded the case to Snyder for her to move forward consistent with that ruling. On Monday, Snyder is slated to issue a new ruling, and is widely expected to halt the employee-trucker plan this time around. There's nothing wrong with unionizing truckers -- and certainly not with efforts to clean up the ports -- but this approach has tried to accomplish too much. Despite the arguments of the proponents, there was never a compelling need to eliminate independent truckers, a move that would simplify record-keeping for port officials but do nothing to clean the air. Unfortunately, backers of this ill-conceived effort say that ifthey can't win in court, they will lobby Congress to change the law, an interminable process that promises only to heighten confusion in the trucking industry and potentially delay compliance with the ports' clean-engine rules. We have a better idea: Let it go. The ports should do what this page repeatedly urged them to do when crafting
WSA Letter to the Port of Oakland
the clean-truck program -- work with the trucking industry, which has no objection to the initiative's environmental requirements, to come up with a plan that cuts pollution without interfering with interstate commerce. That wouldn't be hard to do, if politicians, labor leaders and environmental activists would stop putting up roadblocks.
WSA Letter to the Port of Oakland