In recent years we have seen the creation and growth of the FAST program to the point where it has become part of the everyday lexicon for those involved in cross-border trade. While most would share ...
In recent years we have seen the creation and growth of the FAST program to the point where it has become part of the everyday lexicon for those involved in cross-border trade. While most would share my view that FAST has not fully lived up to expectations in terms of importer participation, and remains heavily centered on the auto trade, we must take a long-term view, and I’m confident that over time the program will expand its current reach.
Despite its warts, the FAST card has become the ‘gold standard’ for crossing the border. CTA has aggressively promoted its use not just in support of FAST itself, but for other purposes as well. As of this moment a FAST card is required for drivers using the BRASS clearance process, and is mandatory for Canadian drivers carrying hazardous materials in the US. The FAST background check now qualifies a driver to obtain a Transportation Worker Identity Credential, and earlier this month Transport Canada announced that it will qualify a truck driver to gain access to secure areas within Canadian cruise ship terminals.
There is, however, one area that has caused concern from the outset, and will not right itself with the passage of time alone. I am referring to driver qualification requirements, and more specifically, the vagaries surrounding decisions on who can obtain/keep a FAST driver card. The industry is rife with stories of drivers who have been denied a card because of an offence committed many years ago, for infractions as minor as attempting to bring a beef sandwich across the border, or for having several packages of cigarettes in excess of one’s personal limit. It is often hard for us to determine the accuracy of these stories, but rest assured a week does not go by without one such complaint landing on a trucking association’s doorstep.
I think we all share in the belief that FAST should only be open to those with a history of compliance and who do not otherwise pose a security risk. But at the same time, I am concerned that the driver program is being undermined by two things: The broad discretion open to CBSA and CBP to deny or revoke a card; and the lack of a meaningful review process for those who find themselves in this situation.
In terms of obtaining and keeping a card, drivers are advised they must meet all immigration eligibility requirements, and have a history of compliance with Customs rules and regulations. Both countries indicate that drivers may not qualify if they have been convicted of a criminal offence, and FAQs on CBSA’s Web site tell drivers they must be “of good character.” This affords considerable latitude to CBP and CBSA staff, but as far as I am aware there are no clear guidelines – at least, any that have been shared with the trucking industry – on what, specifically, will disqualify a driver from the program.
This leads to the second issue – the lack of meaningful access to recourse, for drivers who have been denied a card or had it taken away. A driver who has been denied a card will have the reasons identified, but only in general terms. If the decision was made by CBP, a freedom of information request can be made for documents which gave rise to the decision, but there is no review process per se.
Drivers who have been denied or had a card revoked in either country must wait 90 days, and can then re-apply to the program. However, without a clear understanding of the reasons behind the decision, it is difficult for a driver to bring forward information that might influence the final outcome.
Contrast this situation with the recently-announced changes to Canada’s Marine Transportation Security Regulations, where thousands of Canadian port workers, including truck drivers accessing cruise ship terminals, will be required to undergo a Transport Canada-administered security clearance. If, during the assessment, the department identifies security-related concerns, the applicant is advised of those concerns, and can then apply to an independent, newly-established Office of Reconsideration. An appeal to the Federal Court is also available.
It seems fairly clear that the security-related concerns of Transport Canada for Canadian ports are no less important than those of the land border agencies; but the FAST card approval and revocation process is not sufficiently transparent to allow for due process, while Transport Canada affords an individual the opportunity to have a negative decision – which can easily cost a driver his job and a carrier a valuable employee – reviewed by an independent third party.
We are not suggesting that the driver qualification standards for FAST be compromised. But if we want to maintain the integrity of the program, we will need greater transparency in the decision-making process. Perhaps a process that is directionally similar to what Transport Canada has put in place would meet this objective.