Thursday, January 7, 2010

ATA Fires Back At Enviro Groups' Lawsuit Against Port of Long Beach Truck Plan

The American Trucking Associations, which represent more than 37,000 member motor carriers nationwide, is dismissing a lawsuit filed by environmental groups alleging an agreement between the Port of Long Beach and the ATA will reduce pollution control plans as "baseless and inaccurate."

The settlement, agreed to in October 2009, removed portions of the port's Clean Truck Program that the ATA had objected to in federal court while still allowing the port to retain control over truck access to the port terminals. At the time of the settlement, these portions of the truck program were already under an injunction by a federal court.

"The settlement agreement between the ATA and Long Beach did not make any change that would reduce, let alone reverse, the port's progress in cleaning the air," said Clayton Boyce, ATA's Press Secretary and Vice President for Public Affairs.

"What is cleaning the air is the progressive banning of older trucks. The settlement agreement with the ATA gives the Port of Long Beach everything it needs, and everything it wanted, to continue banning older trucks. The port has the control. If the truck does not meet the requirements, the Port of Long Beach will not let it in the gate," said Boyce.

The National Resources Defense Council and the Sierra Club filed the suit against the Port of Long Beach last week, alleging that the port violated city laws in agreeing to the settlement and that the settlement will reduce the pollution controls of the truck program.

However, the ATA claims that neither issue is at the heart of the two groups' litigation efforts.

"The NRDC and the Sierra Club intend to force the Port of Long Beach (and every other port in the nation) to ban independent owner-operators in order to make all port drivers company employees who can be organized by the Teamsters," said Boyce. "The NRDC is lashing out in anger at the Port of Long Beach because it refused to ban owner-operators."

ATA To Seek Summary Judgment In Los Angeles Port Trucking Case

The ongoing lawsuit by the American Trucking Associations against a trucking program at the Port of Los Angeles could see some resolution next week, if a judge finds in favor of an ATA motion seeking summary judgment for portions of the suit.

The case began in September 2007 when the ATA sought an injunction to block the implementation of a truck program jointly developed but separately implemented by the neighboring ports of Long Beach and Los Angeles. While the initial moves for an injunction to prevent the truck program from being implemented in October 2008 failed, a federal court in March 2009 ruled that portions of the truck program likely violated federal law and thus issued an injunction on those portions of the plan until a full court hearing on the matter. In October 2009, the ATA and he Port of Long Beach reached a settlement, which removed the Long Beach port from the lawsuit. The Los Angeles port remains committed to fighting the suit and the full case is due before the court in March. The ATA motion for summary judgment is expected to be heard by the U.S. District Court on Jan. 11.

The ATA plans to ask the court to decide certain issues if there is no legitimate dispute as to the material facts surrounding those issues. The ATA is also planning to ask the court to find in its favor on the legal issue of whether the Port's Concession Agreement has a sufficient impact on motor carrier rates, routes and services to fall within the federal pre-emption provision.

The Concession Agreement, which forces motor carrier to abide by port-created rules to gain access to the port, is at the heart of the original suit by the ATA. The association alleges that the concession plan imposes a broad range of operational requirements that create a regulatory environment very similar to state intrastate economic regulation. The association has also argued that the plan would result in far fewer trucking companies being able to service the ports, reducing competition.

Horizon Shifts to Ports America Terminal at Oakland Port

Jones Act ocean carrier Horizon Lines has shifted its mainland US to Hawaii, Guam and Micronesia operations at the Port of Oakland to a terminal operated by Ports America, the largest independent terminal operating firm in North America.

Charlotte, NC-based Horizon announced Monday that it had signed a deal to move its Oakland operations to the 160-acre terminal at 1599 Maritime Street, effective immediately.

Horizon had been using the Oakland terminal at 1425 Maritime Street operated by APM Terminals.

According to the Charlotte, NC-based carrier, service enhancements at the Ports America terminal include extended gate hours for early deliveries and lunchtime deliveries on Horizon Lines’ ship days with dedicated truck lanes. All transactions are processed via Electronic Data Interchange, with shipment status updates available through Horizon Lines' online shipment management portal NetCaptain.

The Iselin, NJ-based Ports America signed a 50-year lease for the terminal last year, a deal which also gave the firm an equity stake in the Oakland terminal.

Fidley Watch: Doublethink

(As seen in the January 2010 issue of Pacific Maritime Magazine)

“Doublethink means the power of holding two contradictory beliefs in one’s mind simultaneously, and accepting both of them.” George Orwell

In 2008, Los Angeles Mayor Antonio Villaraigosa accepted half a million dollars in campaign contributions from Change to Win, a Washington, D.C.-based labor coalition substantially funded by the Teamsters. Change to Win has long fought to disenfranchise independent truckers at the Port of Los Angeles. In our March Fidleywatch we suggested that Change to Win’s campaign contribution might influence the Mayor to opt for organized labor’s Clean Trucks Program that had independent truckers forced out of their jobs at the Port.

Last week the City of Los Angeles reported that Mayor Villaraigosa spent $120,000 on a nine-day trip to meet with world leaders and European dignitaries in Copenhagen, Berlin and London to discuss global warming. According to the City, part of that trip was paid for by the Port of Los Angeles.

Change to Win has calculated that independent truck drivers (those forced out of work at the Port of Los Angeles) earn an average of $6 an hour, after expenses.

According to Change to Win’s calculations, the port-funded Mayor’s trip would have paid the wages of an independent truck driver for 10 years.

Not only can the Mayor bask in the glow from all the international stars with whom he mingled in Copenhagen, he can absorb some reflected light from the recently bestowed Orwellian-sounding “Environmental Justice Achievement Award” recently awarded him by the US Environmental Protection Agency (EPA).

According to the EPA, “Environmental Justice is the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. EPA has this goal for all communities and persons across this Nation. It will be achieved when everyone enjoys the same degree of protection from environmental and health hazards and equal access to the decision-making process to have a healthy environment in which to live, learn, and work.”

The most recent award was given to the Mayor-supported Clean Trucks Program (CTP), “for significantly reducing the impact of diesel truck pollution on economically disadvantaged people living near port facilities.”

The CTP Partnership includes the Port of Long Beach, the Port of Los Angeles and the Clean Air Action Plan (CAAP) Stakeholder Group. The CAAP Stakeholder Group, includes, among others: The Natural Resources Defense Council, Coalition for Clean Air, the Port of Los Angeles, the International Brotherhood of Teamsters , East Yard Communities for Environmental Justice, and The Center for Community Action and Environmental Justice.

The City of Los Angeles recently reported a $400 million deficit, and the Mayor can spend $120,000 to fly to Copenhagen for nine days, come back to accept an award for working to furlough port-area wage earners making $6 per hour …the very people he claims to want to help.

Justice? More like doublethink.

Chris Philips, Managing Editor

Tuesday, January 5, 2010

NRDC Files Suit Against Long Beach Port Over ATA Lawsuit Settlement

The National Resources Defense Council and the Sierra Club filed suit last week against the Port of Long Beach, alleging that a federal court-sanctioned agreement that removed the port from ongoing litigation by the American Trucking Associations over the Long Beach and Los Angeles ports' Clean Trucks Program could "reverse efforts to improve air quality in communities surrounding the Port of Long Beach."

The suit, filed Dec. 29, centers around an Oct. 19 agreement reached by port officials and the ATA that effectively ended the Long Beach Port's involvement in litigation brought by the ATA against portions of both ports truck plans in September 2007.

The truck plans, which took effect in October 2008, were designed to reduce ports-generated diesel emissions from ports-servicing trucks that haul containers. The original truck plan, developed and envisioned as a single plan for both ports, eventually morphed into two distinct versions, with each port seeking to approach the truck pollution problem in slightly different ways.

The ATA argued in federal court that a major component of the plan, an access license system that essentially allowed the ports to determine which trucking firms could and could not service port terminals, violated federal law which takes precedence in matters of interstate commerce.

The federal courts agreed and injuncted the concession portion of the truck plan, pending a full court hearing on the matter.

Following this, Long Beach officials determined that their version of the truck plan could move forward without the access license component and still achieve the stated pollution reduction goals, leading to the agreement with the ATA.

The neighboring Port of Los Angeles maintains that the access license component is critical to their version of the truck plan and continue to fight the ATA lawsuit, set to go to court in the next several months.

The Dec. 29 lawsuit by the NRDC follows after an unsuccessful attempt by the group to reverse the Port of Long Beach Harbor Commission agreement at the City Council level, claiming that the agreement violated city law. The Long Beach City Attorney refused to hear the NRDC appeal of the harbor Commission approval of the agreement and stated at the time that the agreement does not violate city law as the NRDC claimed. The NRDC is also alleging in their new suit that the agreement violates Long Beach city law.

Oakland Port Drivers Granted Short Reprieve

A potential shutdown of the Port of Oakland threatened by a Jan. 1 ban on older port-servicing trucks was averted by a marathon weekend negotiating session between the State of California, the City of Oakland and trucking industry officials.

The last minute deal gives Port of Oakland-servicing truckers two weeks to apply for grants to upgrade their trucks and avoid the ban permanently. During the negotiations, a pool of $11 million in state Proposition 1b funds were identified for the truck upgrades. An original pool of $22 million was essentially used up by the early part of this year, leaving many drivers with no way to pay for the retrofit devices, which typically cost between $15,000 and $20,000.

However, while the newly available grants will provide up to $5,000 per trucker for the retrofits, the drivers will still be required to pay for the remaining cost of the upgrades.

In the initial $22 million round of funding, about 1,000 trucks received funds. However, another 1,300 were rejected for grants in the initial round. Port estimates suggest that between 2,000 and 3,000 trucks make up the port-servicing truck fleet.

Under the terms negotiated over the weekend, truckers will have two weeks to apply for the new round of grants and provide proof that they have the financing for the remaining funds to purchase a retrofit device.

The goal of the ban on non-retrofit trucks, which took effect Jan. 1, is to reduce the amount of diesel pollution being generated by port-related activities.

However, according to the pollution reduction program schedule, even the retrofit trucks will be banned within four years and all drivers will be required to operate less polluting model year vehicles.

Vancouver USA Port Finds New Funds For Rail Project

The Washington State Port of Vancouver has secured another round of funding to continue work on its West Vancouver Freight Access project.

The $2.9 million in federal funding, part of the final 2010 Consolidated Appropriations Act, brings the total now secured by the port for the project to $10.2 million, with just under $8 million remaining to be raised.

The project, which began construction in November 2009, is designed to reduce congestion and improve train speeds and efficiencies on the BNSF rails in and around the port.

When completed in 2017, the project will triple the rail car capacity of the port-area BNSF tracks.

State Report: $100 Million Wasted By Seattle Port Will Not Be Recovered

A new report from the Washington State Auditor's office has found that performance audits conducted of state agencies and local governments have saved taxpayers $3.6 billion since voters approved the audits in 2005.

However, the report also confirmed that some of the waste found in the audits, such as nearly $100 million lost by the Port of Seattle between 2004 and 2007, would never be recovered.

The state auditor's office released the 350-page audit of the port in December 2007, finding nearly 50 indications of financial and contracting irregularities or fraud at the port. While the state audit did not detail any cases of suspected fraud in 2007, the state found that the port had “no controls in place to prevent a variety of fraud schemes.”

In addition, the state auditors found that the port wasted nearly $100 million in taxpayer money through improper construction contracting.

The audit led to a United States Department of Justice investigation into the accusation of fraud at the port. However, the state auditor’s office was unable to prove fraud due to state regulations putting the collection of substantiating evidence outside the legal mandate of the office.

A port-generated internal review completed in June 2008 gave the port’s financial accounting since the period covered by the state audit a “clean, unqualified” bill of health. In the commissioned report, port-hired accountants “noted no significant deficiencies nor material weaknesses” in the port's internal controls in the period following that analyzed by the state audit.

In passing the new slate of procedures, the port commissioners acknowledged the connection to the state and internal audit.

The state auditor's latest report also confirmed that since December 2007, the port has put into place policies and regulations that should prevent problems such as those uncovered by the original audit.

Special Feature: eNavigation 2009 - User-Driven Technology

By: Chris Philips, Managing Editor  (As seen in the December issue of Pacific Maritime Magazine | Photo credit: John Erik Hagen, was the first speaker at this year's conference, and discussed a structured approach to the development of eNavigation , focusing on interoperability of systems for safety and efficiency - Philips Publishing Group File Photo)

Pacific Maritime Magazine’s ninth eNavigation Conference, eNav 2009, broke a new record for attendance. Speakers, attendees and exhibitors at the two-day conference came from Europe, South America and Asia as well as all three coasts of the US. This year the conference focused less on AIS and more on Electronic Chart Display and Information System (ECDIS).

This year’s theme, ‘User-driven’ Development and Application, was driven by the evolution of eNavigation as well as the users and those responsible for its development and application.

Since last year’s conference the International Maritime Organization (IMO) has developed and approved a methodical and logical eNavigation implementation strategy, shipboard carriage requirements for the principal shipboard equipment have been incorporated in SOLAS and a significant number of eNavigation related applications are in use or under development.

In his introductory comments, Program Director Robert Moore called for a logical and methodical approach to eNav. “The devil is in the details,” he said, voicing a concern that the government’s needs could overshadow the mariner’s needs and contribute to “ECDIS-related accidents”.

In the opening address, keynote speaker Michael Sollosi, Chair of the IMO’s Subcommittee on the Safety of Navigation (NAV), pointed out that AIS came about through the work done by that committee, but that problems with AIS were solved by the market, rather than regulatory bodies. Mr. Sollosi suggested that application-specific AIS messages would be the next step in the refining process, and predicted that the lack of a comprehensive display might be rectified by future mandatory carriage of ECDIS, but voiced a concern that, “…further development could be hampered by a lack of standardization and compatibility.”

The first panel was introduced by Dr. Lee Alexander, Research Associate Professor at the Center for Coastal and Ocean Mapping, University of New Hampshire. The first panelist, John Erik Hagen, is the Chair of the IMO eNavigation Working Group and Correspondence Group. Mr. Hagen discussed a Structured Approach to the Development of eNavigation, focusing on interoperability.

David Patraiko, Director of Development of The Nautical Institute, reported on the 55th Session of the NAV Sub-Committee (NAV 55). He spoke of the need for a user-selectable presentation, and a focus on the “three-legged stool” of technology, procedures and training, but warned against complacency.

“A good navigator is one who’s never quite sure where they are,” he joked, and cautioned against “knobology”, or simply learning the operation of navigation technology, rather than using technology as a navigation decision support tool.

David B. Enabnit, of NOAA’s Office of Coast Survey pointed out that mariners who have navigated electronically don’t want to go back to paper, and noted that Electronic Navigational Charts (ENC) now cover the applicable coastlines worldwide.

Captain Prash Karnik, Deputy Director of Nautical Operations for Holland America Line, discussed the impact of eNavigation on bridge resource management and watchstanding, and how to supply mariners with the technology they require. Captain Karnik described what his company is doing to provide the tools its mariners need, including a new joint training center in The Netherlands operated by parent company Carnival Corporation. The training center is outfitted with simulators identical to the standardized bridges on the Corporation’s cruise ships, allowing the crew to train on the exact equipment they will be using aboard the vessel.

Brian Sherwood Jones, a consultant to Lloyd’s Register Group, addressed bridge resource management. Geoffrey Gill, with the law firm of Countryman & McDaniel, described the consequences of the shipboard violation of regulations and procedures. Mr. Gill used the aviation industry as an example of a successful four-step safety process, known as PACE, that should be followed shipboard:
  • Probing for better understanding– “I need to understand …” 
  • Alert to anomalies– “It appears to me that … the result will be …”
  • Challenge appropriateness of strategy– “This course places the ship in immediate danger from [describe].”
  • Emergency response to immediate danger– “Captain, if you do not immediately … , my duty and responsibility is to take command.”
From the California Maritime Academy, Captain James J. Buckley, Associate Dean for Simulation, and Captain Samuel R. Pecota, Chair of the Department of Maritime Transportation, discussed the changing instructional paradigm (see Mariner Training: New Technology Demands Maritime Education Reform, on page 25 of this issue).

Mr. Robert Markle, President of the Radio Technical Commission for Maritime Services (RTCM), gave a communications overview, and used the Gulf of Mexico’s Hornbeck Offshore Services as an example of a company that is successful because of the training programs it provides for its crews.

Captain John Fuechsel, USCG (Ret), Chair of the National GMDSS Task Force, spoke on the Role of GMDSS in supporting eNavigation. Alan Weigel, of BlankRome, LLC, warned the attendees to not forget the legal side of eNavigation, and gave examples of the legal ramifications of disregarding electronic information. He noted some cases where AIS data was thrown out by a judge as unreliable, while other cases were won and lost based on the AIS data. Examples included a cross channel ferry that grounded while approaching the port entrance. The court found that ECDIS safety features not been correctly enabled. A container vessel that went aground was determined to be using a fully approved ECDIS whose depth contours had been inappropriately set.

The second day of the conference was introduced by CDR Brian Tetrault, USCG (Ret), and focused on technology. The session began with a presentation by Irene Gonin, of the US Coast Guard Research and Development Center, who discussed application-specific messages for VTS users. Some of the benefits would include reduced workload on the bridge, removing much of the VHF voice traffic and making crucial information available on an as-needed basis. Improved VTS efficiency could offer the possibility of “silent” traffic advisories and automatic encounter lists, and offer better information to mariner in a more usable format.

Darren Wright, PORTS Program Manager at NOAA, discussed the possibility of sending Physical Oceanographic Real-Time System (PORTS) data over AIS, providing real-time tide and current data and greatly enhancing the accuracy of electronic and paper navigation systems.

Captain Jorge Viso, Chairman of the Navigational and Technical Committee of the American Pilots Association, spoke about issues pilots face when visiting the bridge. These ranged from hidden or poorly wired pilot plugs to improperly programmed AIS or PGS units.

Captain Viso noted that MSC.1 Circular 1252 calls for the installation of AIS, as well as testing of static information, dynamic information, voyage related information and performance, including instrument testing and a live air test. He noted that these guidelines are not presently enforced. There is presently a draft amendment to SOLAS 1974, Regulation 18.9, that would require that AIS be subjected to an annual test, conducted by an approved surveyor or an approved testing or servicing facility, to verify the correct programming of the ship static information, correct data exchange with connected sensors as well as, verifying the radio performance by radio frequency measurement and on-air testing.

Professor Reinhard Mueller, of the German Hochschule Wismar University of Business, Technology and Design, Maritime Branch, presented a paper on the Automated Monitoring of Compliance with Rule 10 of COLREGS via AIS. Prof. Mueller gave examples of a test in October 2007 in the Traffic Separation Scheme north of Ruegen, Germany. The test involved all vessels shipping in the vicinity, and monitored compliance with rule 10 of COLREGS regarding traffic lanes.

Analysis of the results showed 1,217 AIS tracks, of which 82 (more than 6 percent) had detected rule violations, with 70 vessels crossing at the wrong angles in the lanes and 12 heading the wrong direction in the lanes, some for more than 54 minutes!

Professor Mueller raised the possibility of an automated monitoring and evaluation of compliance of Rule 10 via AIS, and suggested the application could be integrated into existing technical infrastructures like transponder fitted buoys, Vessel Traffic Services Centers and ECDIS.

Andrew Loretta, Director of AIS Business Development for ORBCOMM discussed real world satellite AIS Applications, and USCG CDR Greg Tlapa, Chief of the Visual Aids Division at US Coast Guard Headquarters, discussed the continued need for traditional aids to navigation in an eNavigation world.

Hugh Phillips, of the UK Hydrographic Office, described some of the weather information available that can help save time and fuel. Providing route optimization based on ocean current, wind, wave, tidal and swell data, as well as understanding and responding to environmental factors in real time, has led to results such as faster voyages or gaining one or more knots of speed while using the same amount of fuel.

The final session addressed applications, and included a presentation by Cees Glansdorp, Chairman, CETLE (The Netherlands), who described the commercial benefits of shore-based eNavigation, and Eric Meger, of COM DEV International Ltd, who addressed space-based AIS.

Peter Granger, of Washington Sea Grant, spoke of the vitality of coastal communities and maritime operations, the barriers to coastal community development, maritime infrastructure and safe dredging.

US Navy Captain George E. McCarthy, Chief of the Outreach & Coordination branch of the Office of Global Maritime Situational Awareness, described the benefits of the Maritime Safety & Security Information System, a non-classified, multi-lateral, freely shared data network exchanging AIS data between participating governments.

At the end of the conference, the floor was opened to questions, moderated by David Patraiko of The Nautical Institute.

The main topic of discussion was the concern over the perceived disparity between what the industry is using and what might be mandated by IMO or the US Coast Guard. A need for user-driven development seemed to be the consensus among both users and regulators, but as Captain Moore pointed out at the beginning of the conference, the devil will be in the details.