City of Los Angeles, CA, Harbor Department of the City of Los Angeles, Board of Harbor Commissioners of the City of Los Angeles, City of Long Beach, California, Harbor Department of the City of Long Beach, and the Board of Harbor Commissioners of the City of Long Beach-Possible Violations of Sections 10(B)(10), 10(D)(1) and 10(D)(4) of the Shipping Act of 1984; Order of Investigation and Hearing, 56824-56827 [E8-22942]

Download as PDF 56824 Federal Register / Vol. 73, No. 190 / Tuesday, September 30, 2008 / Notices used by consumers as tools, to assist them in differentiating between similar types of products based on distinct, verifiable criteria. For example, a logo from the National Organic Standards Board could assist a grower seeking to obtain or maintain organic certification for his/her farm. Labels could provide information about the comparative safety of the product as well as about its potential environmental impact, allowing consumers to choose among products based on their preferences. Along with the recommendations from the PPDC work group, EPA will consider the potential risks associated with including these types of statements on pesticide labeling and the proper role of government in this type of program before deciding whether or not to revise the current regulations. In summary, the Agency is committed to ensuring that pesticide labeling is utilized as a tool to communicate critical information to the user how to use the product safely and effectively. In order to ensure that protection of public health and the environment remain the top priorities for EPA, we are not encouraging submissions of any label claims that detract or distract from the use and safety instructions or that could be considered false or misleading. We remain committed to programs and initiatives designed to improve the content, organization and enforceability of pesticide labeling. List of Subjects Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests. Dated: September 24, 2008. Debra Edwards, Director, Office of Pesticide Programs. [FR Doc. E8–22938 Filed 9–29–08; 8:45 am] BILLING CODE 6560–50–S FARM CREDIT ADMINISTRATION Farm Credit Administration Board; Regular Meeting Farm Credit Administration. SUMMARY: Notice is hereby given, pursuant to the Government in the Sunshine Act (5 U.S.C. 552b(e)(3)), of the regular meeting of the Farm Credit Administration Board (Board). DATES AND TIME: The regular meeting of the Board will be held at the offices of the Farm Credit Administration in McLean, Virginia, on October 9, 2008, from 9 a.m. until such time as the Board concludes its business. ebenthall on PROD1PC60 with NOTICES AGENCY: VerDate Aug<31>2005 15:35 Sep 29, 2008 Jkt 214001 FOR FURTHER INFORMATION CONTACT: Roland E. Smith, Secretary to the Farm Credit Administration Board, (703) 883– 4009, TTY (703) 883–4056. ADDRESSES: Farm Credit Administration, 1501 Farm Credit Drive, McLean, Virginia 22102–5090. SUPPLEMENTARY INFORMATION: Parts of this meeting of the Board will be open to the public (limited space available), and parts will be closed to the public. In order to increase the accessibility to Board meetings, persons requiring assistance should make arrangements in advance. The matters to be considered at the meeting are: Open Session A. Approval of Minutes • September 11, 2008. B. New Business—Regulation • Disclosure and Accounting Requirements—Proposed Rule—12 CFR Parts 619, 620, and 621. C. Reports • OE Quarterly Report and Funding the Farm Credit System (FCS): Æ Financial Condition of FCS. Æ Funding the FCS. Closed Session * • Supervisory and Oversight Activities of FCS Institutions. Dated: September 26, 2008. Roland E. Smith, Secretary, Farm Credit Administration Board. [FR Doc. E8–23077 Filed 9–26–08; 4:15 pm] BILLING CODE 6705–01–P FEDERAL MARITIME COMMISSION [Docket No. 08–05] City of Los Angeles, CA, Harbor Department of the City of Los Angeles, Board of Harbor Commissioners of the City of Los Angeles, City of Long Beach, California, Harbor Department of the City of Long Beach, and the Board of Harbor Commissioners of the City of Long Beach—Possible Violations of Sections 10(B)(10), 10(D)(1) and 10(D)(4) of the Shipping Act of 1984; Order of Investigation and Hearing On November 20, 2006, the governing boards of the Ports of Los Angeles and Long Beach voted to approve the San Pedro Bay Ports Clean Air Action Plan (‘‘CAAP’’). The CAAP is a broad effort aimed at significantly reducing the health risks posed by air pollution from * Session Closed-Exempt pursuant to 5 U.S.C. 552b(c)(8) and (9). PO 00000 Frm 00034 Fmt 4703 Sfmt 4703 port-related ships, trains, drayage trucks, terminal equipment and harbor craft by at least 45 percent in five years. To that end, each port has adopted a Clean Truck Program (‘‘CTP’’) as a component of the CAAP to address air pollution caused by the short haul truckers that transport containers to and from the ports, i.e., the harbor truck drayage system. Each port’s CTP becomes effective on October 1, 2008. The Federal Maritime Commission (‘‘Commission’’) is responsible for enforcing the requirements of the Shipping Act of 1984, as amended by the Ocean Shipping Reform Act of 1998 (‘‘Shipping Act’’). 46 U.S.C. 40101 et seq. As the ports of Los Angeles and Long Beach operate as marine terminal operators (‘‘MTOs’’) under the Shipping Act, their actions, to the extent they impact international transportation, are subject to the Commission’s jurisdiction and, in particular, to the requirements of section 10 of the Shipping Act.1 While the Commission appreciates the significant environmental and public health benefits of the San Pedro Ports CAAP, it is concerned that certain aspects of the ports’ CTPs may violate the Shipping Act. Accordingly, the Commission has determined to initiate an Investigation and Hearing of the Ports’ Clean Truck Programs under section 11 of the Shipping Act with respect to possible violations under section 10 of the Shipping Act. San Pedro Bay Ports The Port of Los Angeles (‘‘POLA’’), referred to as the Los Angeles Harbor Department, is a self-supporting department of the City of Los Angeles, California. POLA is under the control of a five-member Board of Harbor Commissioners appointed by the mayor of Los Angeles and approved by the City Council, and is administered by an executive director.2 POLA is the largest container port in the United States. POLA’s annual loaded container volume for 2007 was 5.7 million twenty-foot equivalent units (‘‘TEUs’’). The Port of Long Beach (‘‘POLB’’) has an administrative structure similar to 1 Section 10(d)(1) requires MTOs to establish, observe, and enforce just and reasonable regulations and practices relating to or connected with receiving, handling, storing, or delivering property. 46 U.S.C. 41102(c). Section 10(d)(4) provides that an MTO may not give any undue or unreasonable preference or advantage or impose any undue or unreasonable prejudice or disadvantage with respect to any person. 46 U.S.C. 41106(2). An MTO may not unreasonably refuse to deal or negotiate. 46 U.S.C. 41106(3). 2 For the purposes of this order, the City of Los Angeles, the Harbor Department of the City of Los Angeles and the Board of Harbor Commissioners of the City of Los Angeles will be referred to as the Port of Los Angeles or POLA. E:\FR\FM\30SEN1.SGM 30SEN1 Federal Register / Vol. 73, No. 190 / Tuesday, September 30, 2008 / Notices POLA. POLB is a public agency managed and operated by the City of Long Beach Harbor Department. POLB is governed by the Long Beach Board of Harbor Commissioners, whose five members are appointed by the mayor of Long Beach and confirmed by the City Council. POLB is administered by an executive director.3 POLB is the second largest port in the United States. POLB’s annual loaded container volume for 2007 was more than 4.9 million TEUs. POLA and POLB are located side-byside in San Pedro Bay and together are referred to as the San Pedro Bay Ports. Together they would constitute the 5th largest container port in the world. While the two ports compete for business, they cooperate on infrastructure projects and environmental issues pursuant to agreements filed with the Commission. It is reported that approximately 16,800 trucks, affiliated with an estimated 600– 1,200 licensed motor carriers (‘‘LMCs’’), transport containers to and from the ports. At present, nearly all of the trucks are operated by independent owner operators. ebenthall on PROD1PC60 with NOTICES The Clean Truck Programs Central to each port’s CTP is a system to control truck access to the container terminals through the issuance of port concessions to LMCs. Each CTP presently provides that after October 1, 2008, entry to container terminals at the ports will be limited to licensed motor carriers that have a concession agreement.4 Carriers serving both ports must have a separate concession from each port. To obtain a concession, an LMC must file an application (with a $2,500 fee for POLA, and $250 for POLB, plus an annual fee of $100 per truck in both ports) in which it presents an appropriate maintenance plan for trucks used at the port; ensures that all trucks comply with safety, regulatory and security requirements, and that drivers have obtained their Transportation Worker Identification Credential; agrees to searches; maintains prescribed insurance levels; equips trucks with prescribed devices to allow for the electronic reading of certain data 3 For the purposes of this order, the City of Long Beach, California, the Harbor Department of the City of Long Beach and the Board of Harbor Commissioners of the City of Long Beach will be referred to as the Port of Long Beach or POLB. 4 The concession requirement has been challenged in federal court. See American Trucking Associations v. City of Los Angeles, et al., No. 08– 04920, C.D. Calif. The district court has denied a request for preliminary injunction, and this decision has been appealed. The outcome of the legal action by the American Trucking Associations does not affect the Commission’s authority to institute this investigation. VerDate Aug<31>2005 15:35 Sep 29, 2008 Jkt 214001 concerning the truck; ensures compliance with parking ordinances; agrees to hiring preferences for drivers with port experience; and agrees to travel only on specified truck routes established by local municipalities or the ports. There are certain differences between the CTPs of the two ports. POLA requires that all approved concessionaires transition to providing port service only with companyemployee drivers. This requirement is phased in over a 5-year period commencing January 1, 2009. By December 31, 2013, all concession drivers at POLA must be company employees. Independent owneroperators will not be permitted entry to the container terminals. POLB has no similar mandate and will permit concessionaires to continue to provide service with either employee drivers, independent owner-operators or a combination of both, as is presently allowed. POLA also requires concession applicants to submit for approval a plan that limits parking to off-street locations. No on-street parking will be allowed for trucks not in service. POLB, on the other hand, requires applicants to submit a parking plan that demonstrates either the availability of off-street parking or legal on-street parking. POLA also requires applicants to submit financial statements and a statement of business experience at the port, in drayage service, and with owneroperators or driver employees, together with references to verify this information. POLB does not have a similar requirement. The applications of both ports provide that submission of an application does not guarantee an award of a concession. There are no published criteria or standards governing the granting or denial of concessions. Both ports require the LMC to register its drayage vehicles in a Drayage Truck Registry (DTR) identifying the vehicle and all of its pertinent details, including the model year of the truck and its engine. Only vehicles registered in the DTR will be permitted entry to the container terminals. Also as part of their CTPs, both ports have adopted a truck ban by which trucks older than model year 1989 will be prohibited from entering terminal premises on and after October 1, 2008. Thereafter, the program progressively bans trucks that do not meet 2007 federal Environmental Protection Agency (‘‘EPA’’) emission standards by January 1, 2012. Each port has adopted truck replacement programs to assist truckers to purchase or upgrade to 2007compliant trucks through grants and PO 00000 Frm 00035 Fmt 4703 Sfmt 4703 56825 lease-to-own plans. State and port funds, as well as funds derived from a Clean Truck Fee, will be used to finance the truck replacement programs through a Clean Truck Fund maintained by each port. Commencing October 1, 2008, a fee of $35 per loaded TEU, or $70 per FEU, will be collected from the beneficial cargo owner on every container entering or exiting the terminals by truck. Containers entering or leaving the ports by rail and those moving between terminals at the ports are not subject to the fee. Both ports will exempt collection of the fee where the truck hauling the container was privately financed and is compliant with the 2007 federal EPA standards and meets certain conditions. Each port maintains slight variations with respect to eligibility for the exemption depending on whether the truck’s fuel is diesel or an alternative fuel such as LNG; when the vehicle was purchased; whether an old truck was scrapped; and whether it was purchased with program funds. Verification of eligibility and enforcement of access to the terminals as well as collection of the Clean Truck Fee are to be the responsibilities of the MTO tenants of the ports. Provisions governing these requirements are published in the respective tariffs of the ports. The Port of Los Angeles Incentive Program On August 21, 2008, POLA adopted two additional incentives to encourage companies operating 2007 or newer compliant trucks to become concessionaires and commit to a stated minimum of service at POLA. One incentive offers a cash payment of $20,000 for each 2007 EPA-compliant truck that is privately funded and committed to service in the port drayage market at a minimum frequency of 6 trips per week for 5 years. Carriers interested in participating were required to submit a letter of interest by September 19, 2008, stating the number of eligible trucks operated, the number to be initially committed to port service, and the number to be added monthly. The other incentive provides for a cash payment of $10 per dray by a 2007 EPAcompliant truck, if the truck achieves a minimum target of 600 qualified drays per year in and out of POLA and POLB, and 300 of those drays are for POLA cargo. There is a per truck limit on this incentive of $10,000 for the year commencing October 1, 2008. Incentive payments for both programs will be made from the Clean Truck Fund and other port funds. Successful applicants E:\FR\FM\30SEN1.SGM 30SEN1 56826 Federal Register / Vol. 73, No. 190 / Tuesday, September 30, 2008 / Notices LMCs providing drayage service to the Port utilize only employee drivers; 2. Whether Respondent Port of Los Commission Authority Angeles provides an undue or A marine terminal operator is defined unreasonable preference or advantage or as ‘‘a person engaged in the United imposes any undue or unreasonable States in the business of furnishing prejudice or disadvantage with respect wharfage, dock, warehouse or other to any person in violation of section terminal facilities in connection with a 10(d)(4) of the Shipping Act by common carrier, or in connection with implementing, on a phased-in basis, a a common carrier and a water carrier ban on independent owner operators subject to sub-chapter 11 of chapter 135 providing drayage service at the Port; of title 49, United States Code.’’ 46 3. Whether Respondent Port of Los U.S.C. 40102(14). Section 10(d)(1) of the Angeles has failed to establish, observe Shipping Act states that a ‘‘[c]ommon and enforce just and reasonable carrier, ocean transportation regulations and practices in violation of intermediary, or marine terminal section 10(d)(1) of the Shipping Act or operator may not fail to establish, provides an undue or unreasonable observe, and enforce just and reasonable preference or advantage or imposes any regulations and practices relating to or undue or unreasonable prejudice or connected with receiving, handling, disadvantage with respect to any person storing, or delivering property.’’ 46 in violation of section 10(d)(4) of the U.S.C. 41102(c). Under section 10(d)(4), Shipping Act, by making payments to ‘‘[a] marine terminal operator may not certain selected motor carriers as give any undue or unreasonable incentive to provide drayage service at preference or advantage or impose any the port, but not to others; 4. Whether Respondent Port of Los undue or unreasonable preference or Angeles has failed to establish, observe advantage or impose any undue or unreasonable prejudice or disadvantage and enforce just and reasonable regulations and practices in violation of with respect to any person;’’ 46 U.S.C. section 10(d)(1) of the Shipping Act or 41106(2). Section 10(b)(10) of the provides an undue or unreasonable Shipping Act prohibits a marine preference or advantage or imposes any terminal operator from unreasonably undue or unreasonable prejudice or refusing to deal or negotiate. 46 U.S.C. disadvantage with respect to any person 41106(3). The Commission is responsible for in violation of section 10(d)(4) of the ensuring that the practices and Shipping Act, by denying access to regulations of marine terminal operators terminal facilities to drayage carriers are just and reasonable. Under Section absent port-approved arrangements to 10(d), a regulation or practice must be park their vehicles on off-street tailored to meet its intended purpose. It premises; 5. Whether Respondents Port of Long may have a valid purpose and yet be Beach and Port of Los Angeles have unreasonable because it goes beyond failed to establish, observe and enforce what is necessary to achieve that just and reasonable regulations and purpose. Distribution Services, Ltd. v. practices in violation of section 10(d)(1) TransPacific Freight Confer. of Japan, of the Shipping Act, or give an undue 24 SRR 714, 722 (FMC, 1988). The test or unreasonable preference or advantage of reasonableness as applied to MTOs or impose any undue or unreasonable requires that actions and practices ‘‘be prejudice or disadvantage with respect otherwise lawful, not excessive and to any person in violation of section reasonably related, fit and appropriate 10(d)(4) of the Shipping Act, by to the ends in view.’’ Exclusive Tug Arrangements in Port Canaveral, 29 SRR exempting from the $35/TEU Clean Truck Fee those beneficial cargo owners 487, 489 (FMC, 2002) and West Coast whose cargo is moved by privately Maritime Association v. Port of financed, 2007 compliant trucks, while Houston, 18 SRR 783, 790 (1978), 610 imposing fees on those beneficial cargo F2d 100 (D.C. Cir. 1979), cert. denied, owners whose cargo is moved by 449 U.S. 822 (1980). publicly financed 2007 compliant trucks Now therefore, it is ordered, That and trucks manufactured between 1989 pursuant to section 11(c) of the and 2006; Shipping Act of 1984, 46 U.S.C. 6. Whether Respondents Port of Long 41303(c), an investigation is instituted Beach and Port of Los Angeles have to determine: failed to establish, observe and enforce 1. Whether Respondent Port of Los Angeles has failed to establish, observe, just and reasonable regulations and practices in violation of section 10(d)(1) and enforce just and reasonable regulations and practices in violation of of the Shipping Act by requiring motor carriers providing container drayage section 10(d)(1) of the Shipping Act by service at the ports to submit an mandating, on a phased-in basis, that ebenthall on PROD1PC60 with NOTICES for the payment will be selected at the sole discretion of the port staff. VerDate Aug<31>2005 15:35 Sep 29, 2008 Jkt 214001 PO 00000 Frm 00036 Fmt 4703 Sfmt 4703 application for a concession, but not publishing standards or criteria by which such application will be granted or denied; 7. Whether Respondent Port of Los Angeles violated section 10(b)(10) of the Shipping Act by refusing to deal or negotiate with motor carriers otherwise authorized to provide drayage service at the port who conduct their port operations using independent owneroperators; 8. Whether, in the event one or more violations of section 10 of the Shipping Act are found, civil penalties should be assessed and, if so, the identity of the entities against whom the penalties should be assessed and the amount of the penalties to be assessed; 9. Whether, in the event violations are found, appropriate cease and desist orders should be issued. It is further ordered, That a public hearing be held in this proceeding and that this matter be assigned for hearing before an Administrative Law Judge of the Commission’s Office of Administrative Law Judges at a date and place to be hereafter determined by the Administrative Law Judge in compliance with Rule 61 of the Commission’s Rules of Practice and Procedure, 46 CFR 502.61. The hearing shall include oral testimony and crossexamination in the discretion of the presiding Administrative Law Judge only after consideration has been given by the parties and the presiding Administrative Law Judge to the use of alternative forms of dispute resolution, and upon a proper showing that there are genuine issues of material fact that cannot be resolved on the basis of sworn statements, affidavits, depositions, or other documents or that the nature of the matters in issue is such that an oral hearing and cross-examination are necessary for the development of an adequate record; It is further ordered, That the following entities be designated as Respondents in this proceeding: City of Los Angeles, California; Harbor Department of the City of Los Angeles; Board of Harbor Commissioners of the City of Los Angeles; City of Long Beach, California; Harbor Department of the City of Long Beach; Board of Harbor Commissioners of the City of Long Beach; It is further ordered, That the Commission’s Bureau of Enforcement be designated a party to this proceeding; It is further ordered, That notice of this Order be published in the Federal Register, and a copy be served on all parties of record; It is further ordered, That other persons having an interest in E:\FR\FM\30SEN1.SGM 30SEN1 Federal Register / Vol. 73, No. 190 / Tuesday, September 30, 2008 / Notices participating in this proceeding may file petitions for leave to intervene in accordance with Rule 72 of the Commission’s Rules of Practice and Procedure, 46 CFR 502.72; It is further ordered, That all further notices, orders, or decisions issued by or on behalf of the Commission in this proceeding, including notice of the time and place of hearing or prehearing conference, shall be served on all parties of record; It is further ordered, That all documents submitted by any party of record in this proceeding shall be directed to the Secretary, Federal Maritime Commission, Washington, DC 20573,in accordance with Rule 118 of the Commission’s Rules of Practice and Procedure, 46 CFR 502.118, and shall be served on parties of record; and It is further ordered, That in accordance with Rule 61 of the Commission’s Rules of Practice and Procedure, the initial decision of the Administrative Law Judge shall be issued by September 24, 2009 and the final decision of the Commission shall be issued by January 22, 2010. Karen V. Gregory, Secretary. [FR Doc. E8–22942 Filed 9–29–08; 8:45 am] BILLING CODE 6730–01–P FEDERAL RESERVE SYSTEM ebenthall on PROD1PC60 with NOTICES Change in Bank Control Notices; Acquisition of Shares of Bank or Bank Holding Companies The notificants listed below have applied under the Change in Bank Control Act (12 U.S.C. 1817(j)) and § 225.41 of the Board’s Regulation Y (12 CFR 225.41) to acquire a bank or bank holding company. The factors that are considered in acting on the notices are set forth in paragraph 7 of the Act (12 U.S.C. 1817(j)(7)). The notices are available for immediate inspection at the Federal Reserve Bank indicated. The notices also will be available for inspection at the office of the Board of Governors. Interested persons may express their views in writing to the Reserve Bank indicated for that notice or to the offices of the Board of Governors. Comments must be received not later than October 15, 2008. A. Federal Reserve Bank of Atlanta (Steve Foley, Vice President) 1000 Peachtree Street, NE., Atlanta, Georgia 30309: 1. James C. France, Daytona Beach, Florida, to acquire voting shares of CenterBank, Inc., and thereby indirectly VerDate Aug<31>2005 15:35 Sep 29, 2008 Jkt 214001 acquire voting shares of CenterBank of Jacksonville, N.A., both of Jacksonville, Florida. Board of Governors of the Federal Reserve System, September 25, 2008. Robert deV. Frierson, Deputy Secretary of the Board. [FR Doc. E8–22930 Filed 9–29–08; 8:45 am] 56827 Board of Governors of the Federal Reserve System, September 25, 2008. Robert deV. Frierson, Deputy Secretary of the Board. [FR Doc.E8–22929 Filed 9–29–08; 8:45 am] BILLING CODE 6210–01–S BILLING CODE 6210–01–S DEPARTMENT OF HEALTH AND HUMAN SERVICES FEDERAL RESERVE SYSTEM Agency Information Collection Request; 30–Day Public Comment Request, Grants.Gov; 30-day Notice Formations of, Acquisitions by, and Mergers of Bank Holding Companies Office of the Secretary, HHS. In compliance with the requirement of section 3506(c)(2)(A) of the Paperwork Reduction Act of 1995, the Office of the Secretary (OS), Department of Health and Human Services, is publishing the following summary of a proposed collection for public comment. Interested persons are invited to send comments regarding this burden estimate or any other aspect of this collection of information, including any of the following subjects: (1) The necessity and utility of the proposed information collection for the proper performance of the agency’s functions; (2) the accuracy of the estimated burden; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) the use of automated collection techniques or other forms of information technology to minimize the information collection burden. To obtain copies of the supporting statement and any related forms for the proposed paperwork collections referenced above, e-mail your request, including your address, phone number, OMB number, and OS document identifier, to Sherette.funncoleman@hhs.gov, or call the Reports Clearance Office on (202) 690–5683. Send written comments and recommendations for the proposed information collections within 30 days of this notice directly to the OS OMB Desk Officer; faxed to OMB at 202–395– 6974. Proposed Project: SF–424 Short Organizational—Revision—OMB No. 4040–0003—Grants.gov. Abstract: This is a request for a revision of a previously approved collection. The SF–424 Short organizational form is used by the 26 Federal grant-making agencies as a simplified alternative to the SF–424 standard form. Agencies may use the SF–424 Short Organizational form for grant programs not required to collect all the data that is required on the SF– 424 standard form. AGENCY: The companies listed in this notice have applied to the Board for approval, pursuant to the Bank Holding Company Act of 1956 (12 U.S.C. 1841 et seq.) (BHC Act), Regulation Y (12 CFR Part 225), and all other applicable statutes and regulations to become a bank holding company and/or to acquire the assets or the ownership of, control of, or the power to vote shares of a bank or bank holding company and all of the banks and nonbanking companies owned by the bank holding company, including the companies listed below. The applications listed below, as well as other related filings required by the Board, are available for immediate inspection at the Federal Reserve Bank indicated. The applications also will be available for inspection at the offices of the Board of Governors. Interested persons may express their views in writing on the standards enumerated in the BHC Act (12 U.S.C. 1842(c)). If the proposal also involves the acquisition of a nonbanking company, the review also includes whether the acquisition of the nonbanking company complies with the standards in section 4 of the BHC Act (12 U.S.C. 1843). Unless otherwise noted, nonbanking activities will be conducted throughout the United States. Additional information on all bank holding companies may be obtained from the National Information Center website at www.ffiec.gov/nic/. Unless otherwise noted, comments regarding each of these applications must be received at the Reserve Bank indicated or the offices of the Board of Governors not later than October 24, 2008. A. Federal Reserve Bank of Atlanta (Steve Foley, Vice President) 1000 Peachtree Street, N.E., Atlanta, Georgia 30309: 1. Broward Financial Holdings, Inc., to become a bank holding company by acquiring 100 percent of the voting shares of Broward Bank of Commerce, both of Fort Lauderdale, Florida. PO 00000 Frm 00037 Fmt 4703 Sfmt 4703 E:\FR\FM\30SEN1.SGM 30SEN1

Agencies

[Federal Register Volume 73, Number 190 (Tuesday, September 30, 2008)]
[Notices]
[Pages 56824-56827]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-22942]


=======================================================================
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FEDERAL MARITIME COMMISSION

[Docket No. 08-05]


City of Los Angeles, CA, Harbor Department of the City of Los 
Angeles, Board of Harbor Commissioners of the City of Los Angeles, City 
of Long Beach, California, Harbor Department of the City of Long Beach, 
and the Board of Harbor Commissioners of the City of Long Beach--
Possible Violations of Sections 10(B)(10), 10(D)(1) and 10(D)(4) of the 
Shipping Act of 1984; Order of Investigation and Hearing

    On November 20, 2006, the governing boards of the Ports of Los 
Angeles and Long Beach voted to approve the San Pedro Bay Ports Clean 
Air Action Plan (``CAAP''). The CAAP is a broad effort aimed at 
significantly reducing the health risks posed by air pollution from 
port-related ships, trains, drayage trucks, terminal equipment and 
harbor craft by at least 45 percent in five years. To that end, each 
port has adopted a Clean Truck Program (``CTP'') as a component of the 
CAAP to address air pollution caused by the short haul truckers that 
transport containers to and from the ports, i.e., the harbor truck 
drayage system. Each port's CTP becomes effective on October 1, 2008.
    The Federal Maritime Commission (``Commission'') is responsible for 
enforcing the requirements of the Shipping Act of 1984, as amended by 
the Ocean Shipping Reform Act of 1998 (``Shipping Act''). 46 U.S.C. 
40101 et seq. As the ports of Los Angeles and Long Beach operate as 
marine terminal operators (``MTOs'') under the Shipping Act, their 
actions, to the extent they impact international transportation, are 
subject to the Commission's jurisdiction and, in particular, to the 
requirements of section 10 of the Shipping Act.\1\
---------------------------------------------------------------------------

    \1\ Section 10(d)(1) requires MTOs to establish, observe, and 
enforce just and reasonable regulations and practices relating to or 
connected with receiving, handling, storing, or delivering property. 
46 U.S.C. 41102(c). Section 10(d)(4) provides that an MTO may not 
give any undue or unreasonable preference or advantage or impose any 
undue or unreasonable prejudice or disadvantage with respect to any 
person. 46 U.S.C. 41106(2). An MTO may not unreasonably refuse to 
deal or negotiate. 46 U.S.C. 41106(3).
---------------------------------------------------------------------------

    While the Commission appreciates the significant environmental and 
public health benefits of the San Pedro Ports CAAP, it is concerned 
that certain aspects of the ports' CTPs may violate the Shipping Act. 
Accordingly, the Commission has determined to initiate an Investigation 
and Hearing of the Ports' Clean Truck Programs under section 11 of the 
Shipping Act with respect to possible violations under section 10 of 
the Shipping Act.

San Pedro Bay Ports

    The Port of Los Angeles (``POLA''), referred to as the Los Angeles 
Harbor Department, is a self-supporting department of the City of Los 
Angeles, California. POLA is under the control of a five-member Board 
of Harbor Commissioners appointed by the mayor of Los Angeles and 
approved by the City Council, and is administered by an executive 
director.\2\ POLA is the largest container port in the United States. 
POLA's annual loaded container volume for 2007 was 5.7 million twenty-
foot equivalent units (``TEUs'').
---------------------------------------------------------------------------

    \2\ For the purposes of this order, the City of Los Angeles, the 
Harbor Department of the City of Los Angeles and the Board of Harbor 
Commissioners of the City of Los Angeles will be referred to as the 
Port of Los Angeles or POLA.
---------------------------------------------------------------------------

    The Port of Long Beach (``POLB'') has an administrative structure 
similar to

[[Page 56825]]

POLA. POLB is a public agency managed and operated by the City of Long 
Beach Harbor Department. POLB is governed by the Long Beach Board of 
Harbor Commissioners, whose five members are appointed by the mayor of 
Long Beach and confirmed by the City Council. POLB is administered by 
an executive director.\3\ POLB is the second largest port in the United 
States. POLB's annual loaded container volume for 2007 was more than 
4.9 million TEUs.
---------------------------------------------------------------------------

    \3\ For the purposes of this order, the City of Long Beach, 
California, the Harbor Department of the City of Long Beach and the 
Board of Harbor Commissioners of the City of Long Beach will be 
referred to as the Port of Long Beach or POLB.
---------------------------------------------------------------------------

    POLA and POLB are located side-by-side in San Pedro Bay and 
together are referred to as the San Pedro Bay Ports. Together they 
would constitute the 5th largest container port in the world. While the 
two ports compete for business, they cooperate on infrastructure 
projects and environmental issues pursuant to agreements filed with the 
Commission. It is reported that approximately 16,800 trucks, affiliated 
with an estimated 600-1,200 licensed motor carriers (``LMCs''), 
transport containers to and from the ports. At present, nearly all of 
the trucks are operated by independent owner operators.

The Clean Truck Programs

    Central to each port's CTP is a system to control truck access to 
the container terminals through the issuance of port concessions to 
LMCs. Each CTP presently provides that after October 1, 2008, entry to 
container terminals at the ports will be limited to licensed motor 
carriers that have a concession agreement.\4\ Carriers serving both 
ports must have a separate concession from each port. To obtain a 
concession, an LMC must file an application (with a $2,500 fee for 
POLA, and $250 for POLB, plus an annual fee of $100 per truck in both 
ports) in which it presents an appropriate maintenance plan for trucks 
used at the port; ensures that all trucks comply with safety, 
regulatory and security requirements, and that drivers have obtained 
their Transportation Worker Identification Credential; agrees to 
searches; maintains prescribed insurance levels; equips trucks with 
prescribed devices to allow for the electronic reading of certain data 
concerning the truck; ensures compliance with parking ordinances; 
agrees to hiring preferences for drivers with port experience; and 
agrees to travel only on specified truck routes established by local 
municipalities or the ports.
---------------------------------------------------------------------------

    \4\ The concession requirement has been challenged in federal 
court. See American Trucking Associations v. City of Los Angeles, et 
al., No. 08-04920, C.D. Calif. The district court has denied a 
request for preliminary injunction, and this decision has been 
appealed. The outcome of the legal action by the American Trucking 
Associations does not affect the Commission's authority to institute 
this investigation.
---------------------------------------------------------------------------

    There are certain differences between the CTPs of the two ports. 
POLA requires that all approved concessionaires transition to providing 
port service only with company-employee drivers. This requirement is 
phased in over a 5-year period commencing January 1, 2009. By December 
31, 2013, all concession drivers at POLA must be company employees. 
Independent owner-operators will not be permitted entry to the 
container terminals. POLB has no similar mandate and will permit 
concessionaires to continue to provide service with either employee 
drivers, independent owner-operators or a combination of both, as is 
presently allowed. POLA also requires concession applicants to submit 
for approval a plan that limits parking to off-street locations. No on-
street parking will be allowed for trucks not in service. POLB, on the 
other hand, requires applicants to submit a parking plan that 
demonstrates either the availability of off-street parking or legal on-
street parking. POLA also requires applicants to submit financial 
statements and a statement of business experience at the port, in 
drayage service, and with owner-operators or driver employees, together 
with references to verify this information. POLB does not have a 
similar requirement.
    The applications of both ports provide that submission of an 
application does not guarantee an award of a concession. There are no 
published criteria or standards governing the granting or denial of 
concessions. Both ports require the LMC to register its drayage 
vehicles in a Drayage Truck Registry (DTR) identifying the vehicle and 
all of its pertinent details, including the model year of the truck and 
its engine. Only vehicles registered in the DTR will be permitted entry 
to the container terminals.
    Also as part of their CTPs, both ports have adopted a truck ban by 
which trucks older than model year 1989 will be prohibited from 
entering terminal premises on and after October 1, 2008. Thereafter, 
the program progressively bans trucks that do not meet 2007 federal 
Environmental Protection Agency (``EPA'') emission standards by January 
1, 2012. Each port has adopted truck replacement programs to assist 
truckers to purchase or upgrade to 2007-compliant trucks through grants 
and lease-to-own plans. State and port funds, as well as funds derived 
from a Clean Truck Fee, will be used to finance the truck replacement 
programs through a Clean Truck Fund maintained by each port.
    Commencing October 1, 2008, a fee of $35 per loaded TEU, or $70 per 
FEU, will be collected from the beneficial cargo owner on every 
container entering or exiting the terminals by truck. Containers 
entering or leaving the ports by rail and those moving between 
terminals at the ports are not subject to the fee. Both ports will 
exempt collection of the fee where the truck hauling the container was 
privately financed and is compliant with the 2007 federal EPA standards 
and meets certain conditions. Each port maintains slight variations 
with respect to eligibility for the exemption depending on whether the 
truck's fuel is diesel or an alternative fuel such as LNG; when the 
vehicle was purchased; whether an old truck was scrapped; and whether 
it was purchased with program funds. Verification of eligibility and 
enforcement of access to the terminals as well as collection of the 
Clean Truck Fee are to be the responsibilities of the MTO tenants of 
the ports. Provisions governing these requirements are published in the 
respective tariffs of the ports.

The Port of Los Angeles Incentive Program

    On August 21, 2008, POLA adopted two additional incentives to 
encourage companies operating 2007 or newer compliant trucks to become 
concessionaires and commit to a stated minimum of service at POLA. One 
incentive offers a cash payment of $20,000 for each 2007 EPA-compliant 
truck that is privately funded and committed to service in the port 
drayage market at a minimum frequency of 6 trips per week for 5 years. 
Carriers interested in participating were required to submit a letter 
of interest by September 19, 2008, stating the number of eligible 
trucks operated, the number to be initially committed to port service, 
and the number to be added monthly. The other incentive provides for a 
cash payment of $10 per dray by a 2007 EPA-compliant truck, if the 
truck achieves a minimum target of 600 qualified drays per year in and 
out of POLA and POLB, and 300 of those drays are for POLA cargo. There 
is a per truck limit on this incentive of $10,000 for the year 
commencing October 1, 2008. Incentive payments for both programs will 
be made from the Clean Truck Fund and other port funds. Successful 
applicants

[[Page 56826]]

for the payment will be selected at the sole discretion of the port 
staff.

Commission Authority

    A marine terminal operator is defined as ``a person engaged in the 
United States in the business of furnishing wharfage, dock, warehouse 
or other terminal facilities in connection with a common carrier, or in 
connection with a common carrier and a water carrier subject to sub-
chapter 11 of chapter 135 of title 49, United States Code.'' 46 U.S.C. 
40102(14). Section 10(d)(1) of the Shipping Act states that a 
``[c]ommon carrier, ocean transportation intermediary, or marine 
terminal operator may not fail to establish, observe, and enforce just 
and reasonable regulations and practices relating to or connected with 
receiving, handling, storing, or delivering property.'' 46 U.S.C. 
41102(c). Under section 10(d)(4), ``[a] marine terminal operator may 
not give any undue or unreasonable preference or advantage or impose 
any undue or unreasonable preference or advantage or impose any undue 
or unreasonable prejudice or disadvantage with respect to any person;'' 
46 U.S.C. 41106(2). Section 10(b)(10) of the Shipping Act prohibits a 
marine terminal operator from unreasonably refusing to deal or 
negotiate. 46 U.S.C. 41106(3).
    The Commission is responsible for ensuring that the practices and 
regulations of marine terminal operators are just and reasonable. Under 
Section 10(d), a regulation or practice must be tailored to meet its 
intended purpose. It may have a valid purpose and yet be unreasonable 
because it goes beyond what is necessary to achieve that purpose. 
Distribution Services, Ltd. v. TransPacific Freight Confer. of Japan, 
24 SRR 714, 722 (FMC, 1988). The test of reasonableness as applied to 
MTOs requires that actions and practices ``be otherwise lawful, not 
excessive and reasonably related, fit and appropriate to the ends in 
view.'' Exclusive Tug Arrangements in Port Canaveral, 29 SRR 487, 489 
(FMC, 2002) and West Coast Maritime Association v. Port of Houston, 18 
SRR 783, 790 (1978), 610 F2d 100 (D.C. Cir. 1979), cert. denied, 449 
U.S. 822 (1980).
    Now therefore, it is ordered, That pursuant to section 11(c) of the 
Shipping Act of 1984, 46 U.S.C. 41303(c), an investigation is 
instituted to determine:
    1. Whether Respondent Port of Los Angeles has failed to establish, 
observe, and enforce just and reasonable regulations and practices in 
violation of section 10(d)(1) of the Shipping Act by mandating, on a 
phased-in basis, that LMCs providing drayage service to the Port 
utilize only employee drivers;
    2. Whether Respondent Port of Los Angeles provides an undue or 
unreasonable preference or advantage or imposes any undue or 
unreasonable prejudice or disadvantage with respect to any person in 
violation of section 10(d)(4) of the Shipping Act by implementing, on a 
phased-in basis, a ban on independent owner operators providing drayage 
service at the Port;
    3. Whether Respondent Port of Los Angeles has failed to establish, 
observe and enforce just and reasonable regulations and practices in 
violation of section 10(d)(1) of the Shipping Act or provides an undue 
or unreasonable preference or advantage or imposes any undue or 
unreasonable prejudice or disadvantage with respect to any person in 
violation of section 10(d)(4) of the Shipping Act, by making payments 
to certain selected motor carriers as incentive to provide drayage 
service at the port, but not to others;
    4. Whether Respondent Port of Los Angeles has failed to establish, 
observe and enforce just and reasonable regulations and practices in 
violation of section 10(d)(1) of the Shipping Act or provides an undue 
or unreasonable preference or advantage or imposes any undue or 
unreasonable prejudice or disadvantage with respect to any person in 
violation of section 10(d)(4) of the Shipping Act, by denying access to 
terminal facilities to drayage carriers absent port-approved 
arrangements to park their vehicles on off-street premises;
    5. Whether Respondents Port of Long Beach and Port of Los Angeles 
have failed to establish, observe and enforce just and reasonable 
regulations and practices in violation of section 10(d)(1) of the 
Shipping Act, or give an undue or unreasonable preference or advantage 
or impose any undue or unreasonable prejudice or disadvantage with 
respect to any person in violation of section 10(d)(4) of the Shipping 
Act, by exempting from the $35/TEU Clean Truck Fee those beneficial 
cargo owners whose cargo is moved by privately financed, 2007 compliant 
trucks, while imposing fees on those beneficial cargo owners whose 
cargo is moved by publicly financed 2007 compliant trucks and trucks 
manufactured between 1989 and 2006;
    6. Whether Respondents Port of Long Beach and Port of Los Angeles 
have failed to establish, observe and enforce just and reasonable 
regulations and practices in violation of section 10(d)(1) of the 
Shipping Act by requiring motor carriers providing container drayage 
service at the ports to submit an application for a concession, but not 
publishing standards or criteria by which such application will be 
granted or denied;
    7. Whether Respondent Port of Los Angeles violated section 
10(b)(10) of the Shipping Act by refusing to deal or negotiate with 
motor carriers otherwise authorized to provide drayage service at the 
port who conduct their port operations using independent owner-
operators;
    8. Whether, in the event one or more violations of section 10 of 
the Shipping Act are found, civil penalties should be assessed and, if 
so, the identity of the entities against whom the penalties should be 
assessed and the amount of the penalties to be assessed;
    9. Whether, in the event violations are found, appropriate cease 
and desist orders should be issued.
    It is further ordered, That a public hearing be held in this 
proceeding and that this matter be assigned for hearing before an 
Administrative Law Judge of the Commission's Office of Administrative 
Law Judges at a date and place to be hereafter determined by the 
Administrative Law Judge in compliance with Rule 61 of the Commission's 
Rules of Practice and Procedure, 46 CFR 502.61. The hearing shall 
include oral testimony and cross-examination in the discretion of the 
presiding Administrative Law Judge only after consideration has been 
given by the parties and the presiding Administrative Law Judge to the 
use of alternative forms of dispute resolution, and upon a proper 
showing that there are genuine issues of material fact that cannot be 
resolved on the basis of sworn statements, affidavits, depositions, or 
other documents or that the nature of the matters in issue is such that 
an oral hearing and cross-examination are necessary for the development 
of an adequate record;
    It is further ordered, That the following entities be designated as 
Respondents in this proceeding:
    City of Los Angeles, California; Harbor Department of the City of 
Los Angeles; Board of Harbor Commissioners of the City of Los Angeles; 
City of Long Beach, California; Harbor Department of the City of Long 
Beach; Board of Harbor Commissioners of the City of Long Beach;
    It is further ordered, That the Commission's Bureau of Enforcement 
be designated a party to this proceeding;
    It is further ordered, That notice of this Order be published in 
the Federal Register, and a copy be served on all parties of record;
    It is further ordered, That other persons having an interest in

[[Page 56827]]

participating in this proceeding may file petitions for leave to 
intervene in accordance with Rule 72 of the Commission's Rules of 
Practice and Procedure, 46 CFR 502.72;
    It is further ordered, That all further notices, orders, or 
decisions issued by or on behalf of the Commission in this proceeding, 
including notice of the time and place of hearing or prehearing 
conference, shall be served on all parties of record;
    It is further ordered, That all documents submitted by any party of 
record in this proceeding shall be directed to the Secretary, Federal 
Maritime Commission, Washington, DC 20573,in accordance with Rule 118 
of the Commission's Rules of Practice and Procedure, 46 CFR 502.118, 
and shall be served on parties of record; and
    It is further ordered, That in accordance with Rule 61 of the 
Commission's Rules of Practice and Procedure, the initial decision of 
the Administrative Law Judge shall be issued by September 24, 2009 and 
the final decision of the Commission shall be issued by January 22, 
2010.

Karen V. Gregory,
Secretary.
[FR Doc. E8-22942 Filed 9-29-08; 8:45 am]
BILLING CODE 6730-01-P