Cabotage changes are not likely to come before 2001

by Daniel Joyce

A year ago, I was quite optimistic about the chances for new cabotage rules. The proper forces seemed to be aligned, with an agenda in place. A couple of meetings had taken place between industry representatives from the Canadian Trucking Alliance and American Trucking Associations, together with key personnel from the Immigration and Customs departments of both countries. The government people were educating themselves on the motor carrier industry, and acknowledging that the current rules could endure some change without affecting the domestic labor markets or transportation industries of either country.

Today, it looks like things have ground to a virtual halt. We are now no closer to tangible results than we were a year ago, and there may be several months of inactivity before action resumes. The various parties have not met together for many months, and it may take a few months before things can get back on track.

In November, the U.S. will elect a new president. Important administrative personnel, including U.S. Immigration and Naturalization (INS) Commissioner Doris Meissner, may be replaced with people from the new administration. And even if key personnel are retained, their priorities and objectives may be revised by the new administration.

Take it as a certainty that nothing will be done before the new president takes office in January. You can also expect that the issue of cabotage will likely be overshadowed by other major issues in the new regime’s early days.

The U.S. Immigration and Naturalization Service continues to be more restrictive than U.S. Customs. While U.S. Customs allows Canadian-based equipment to be used in certain point-to-point moves that are incidental to international trade, the INS has no exceptions to the general rule that a Canadian driver cannot pick up and deliver the same goods in the U.S. Under current INS interpretations, it does not matter if the merchandise is international or domestic. The INS looks at the point of pickup and point of delivery and declares it to be a violation of its rules.

One area that has seemed to change over the past year is that of enforcement. The number of truck seizures has reduced over the past year.

This may be an indication that the INS has temporarily softened its stance on cabotage violations while it reviews the issues. While INS officials will not confirm any change in enforcement strategy, it does appear as though the INS is not going out of its way to make examples of Canadian carriers by being hyper-technical in its interpretation or application of the rules.

But don’t take this as an invitation to tempt the INS. The potential penalties – deportation for the driver and seizure of equipment – never outweigh the perceived benefits of an illegal movement of goods. n

– Daniel Joyce can be reached at Hirsch and Joyce, Attorneys at Law, at 716-564-2727. This column is for information purposes only, and should not be taken as legal advice.

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