November 5, 2008 Volume 12, Number 11 Oakland, California

SIGNALS™ provides detailed information on the regulations and activities of the US Federal Maritime Commission (FMC), and related developments in the ocean freight industry. For past issues, please consult our index.

The Federal Maritime Commission has acted to block anti-competitive concession requirements of the ports of Los Angeles’ and Long Beach’s Clean Truck Programs.  At its October 29 meeting Commissioner Harold J. Creel, Jr. and Commissioner Rebecca F. Dye voted to authorize the filing of a complaint with the U.S. District Court for the District of Columbia to enjoin portions of the clean truck programs as filed in Agreement No. 201170 - The Los Angeles and Long Beach Marine Terminal Agreement.  Commissioner Joseph E. Brennan dissented from this decision.

The Commission determined that certain portions of the programs are likely to reduce competition and result in an unreasonable increase in transportation costs or unreasonable reduction in services. These portions include the employee-only concession requirement included in the Port of Los Angeles’ Clean Truck Program that bans independent owner operators. The Commission is seeking the “surgical removal of the substantially anti-competitive elements of the Agreement, such as the employee mandate,” so that the ports can move forward with their environmental and health goals. The Port of Long Beach has not adopted the employee-only mandate. Trucking companies that use independent contractors are permitted under the Long Beach plan.

In a statement regarding his dissenting vote, Commissioner Brennan said that he considered it “a colossal mistake” for the Commission to block the Port of Los Angeles’ program.  He noted that a federal court in California rebuffed attempts by the American Trucking Association to block the Clean Truck Programs, and believes the FMC’s attempt to block the programs “should and will, meet the same fate in court.”  The U.S. District Court in California found that the programs’ public health benefits outweighed the economic hardships truckers may experience and denied the ATA’s request to prevent the Clean Truck Programs from taking effect. However, the ATA has appealed the decision of the U.S. District Court in California to the Ninth Circuit Court of Appeals in San Francisco.  The U.S. Department of Justice filed a brief with the court in support of the ATA stating that federal law preempts certain provisions of the trucking concession requirements.  The National Association of Waterfront Employers also filed a brief with the court urging it to refer the case to the FMC.

The ports’ Clean Truck Programs aim to reduce air pollution in and around the ports by progressively banning older trucks from hauling cargo to and from the ports.  The first of the progressive bans on older trucks began Oct. 1 and barred all pre-1989 trucks from the ports.  The programs require all pre-2007 trucks to be replaced or retrofitted by the year 2013.  “Even if the court issues an injunction temporarily halting the employee mandate requirement, the port will continue with all other aspects of the [clean-truck plan],” said Port of Los Angeles Executive Director Geraldine Knatz.

The ports originally also planned to implement a $35 per TEU Clean Truck Fee (CTF) on Oct. 1, but this has been delayed until sometime in mid-November.  The ports recently contracted with www.portcheck.org to administer and collect the CTF.  PortCheck is run by the same company that handles the PierPASS “Traffic Mitigation Fee (TMF)” at the ports.  Shippers can register now with PierPASS at www.pierpass-tmf.org and those registrations will migrate to PortCheck.  In the future PortCheck will have its own registration process.

The Westbound Transpacific Stabilization Agreement (WTSA), FMC Agreement No. 011325, whose member lines serve the US export trades from the USA to East Asia, announced reductions to Bunker Adjustment Factors (BAF) and Inland Fuel Charges (IFC) for the month of December 2008.

Inland Fuel Charges (IFC) for December will be reduced to US$ 317 per container for rail and intermodal rail/truck shipments, and US$ 92 per container for local/regional truck shipments.  WTSA has two different BAF surcharges.  BAF for December under the WTSA’s “old formula” will be US$ 770 per 20ft ctr, US$ 616 per 40ft/45ft ctr and US$ 38 per WM.  BAF for the Oct-Dec quarter calculated using WTSA’s “new formula” for dry container cargo is as follows: from/via US Atlantic/Gulf Coast Ports - US$ 720 per 20ft ctr and US$ 900 per 40ft/45ft ctr; from/via US Pacific Coast Ports - US$ 614 per 20ft ctr and US$ 767 per 40ft/45ft ctr.  WTSA will announce the next revision in late December.

WTSA’s 10 member carriers are American President Lines, COSCO Container Lines, Evergreen Marine Corp., Hanjin Shipping, Hapag-Lloyd Container Line, Hyundai Merchant Marine, "K" Line, NYK Line, OOCL, and Yang Ming Marine.  For more info visit www.wtsacarriers.org.

In the same trade lane, Maersk Line’s bunker surcharges applicable for the Oct-Dec quarter for both dry and reefer containers are as follows: from/via US Atlantic/Gulf Coast Ports - US$ 190 per 20ft ctr and US$ 380 per 40/45ft ctr; from/via US Pacific Coast Ports - US$ 125 per 20ft ctr and US$ 250 per 40/45ft ctr.  Visit http://baf.maerskline.com.

The carrier members of the Transpacific Stabilization Agreement (TSA), serving the East Asia/USA trade lane announced major reductions to Bunker Adjustment Factors (BAF) and Inland Fuel Charges (IFC) for December 2008.  BAF for December will be reduced to US$ 616 per 20ft ctr, US$ 770 per 40ft ctr, US$ 866 per 40ft hi-cube ctr, US$ 975 per 45ft ctr and US$ 17 per WM.  December IFC will be reduced to US$ 317 per container for MLB and IPI shipments moving via rail, and to US$ 92 per container for truck transport to Group 4 points in California, Oregon and Washington, and for East Coast local store-door truck moves.

The TSA Carriers also recently released an Asia-U.S. Trade Analysis and 2009 Outlook.  According to this analysis, the group expects container volumes to be “constrained” in the first half of 2009, but predicts this trend will “turnaround” in the later half of the year.  “We expect to see an orderly de-leveraging of the financial markets over the next year that will begin to restore confidence with year-on-year cargo demand growth resuming in late 2009,” said TSA Chairman Ron Widdows.  Widdows also noted, “No carrier is operating profitably in the eastbound transpacific market today.”  According to the report, TSA member carriers plan to implement a new bunker surcharge formula for application in 2009 contracts.  The new formula will be based on a fewer number of variables with East Coast and West Coast charges calculated separately.   General Rate Increases (GRI) for 2009 are not mentioned in the report.

In related news Mitsui O.S.K. Lines, Ltd (MOL), announced its resignation from the Transpacific Stabilization Agreement effective November 27, 2008.  “With the European Union’s abolition of liner anti-trust immunity, it has become extremely difficult to align the business processes of our entire organization when its regional divisions must operate to differing standards,” stated Masakazu Yakushiji, Executive Vice President in charge of MOL’s Liner Division.   MOL has been a member of the TSA since its inception in 1989.

With the departure of MOL the remaining members of the TSA Carrier group will be American President Lines, CSCL, CMA-CGM, COSCO Container Lines, Evergreen Marine, Hanjin Shipping, Hapag-Lloyd Container Line, Hyundai Merchant Marine, "K" Line, Mediterranean Shipping, NYK Line, OOCL, Yang Ming Marine, and Zim Integrated Shipping Services.  Visit http://www.tsacarriers.org.