Some predictions for a millennial year

by Daniel Joyce

Certain topics have dominated this space over the past few years, and I’d like to engage in some wishful thinking as we turn the calendar to the year 2000.

Cabotage: A more liberal view

But over the past few months, the INS has shown more sensitivity to the needs of Canadian carriers involved in international commerce, and I am hopeful that some sort of liberalization will take place within the next year.

My guess is that the first step would be to revise the definitions of “international” and “domestic” transportation, so that certain activities can be viewed as lawful within the stream of international commerce. Examples would include the repositioning of empty trailers, and switching of company-owned equipment and/or drivers to relay goods.

There has to be a way to allow Canadian carriers to operate efficiently while complying with hours of service rules and other safety-related laws. However, it is not likely that the Immigration Service will adopt exceptions to the rule that would allow the move of domestic merchandise between points in the U.S.

Waivers: A new format

But it would also be nice to see an expansion of the “petty offense” concept to allow a broader class of individuals to escape the requirement to apply for a waiver. An example would be the 45-year old driver who has one conviction for writing a bad check or stealing hubcaps when he was 18. The law requires him to apply for a waiver, but the age and nature of the record virtually assure him that he will get it. It seems to be a waste of time and money to require someone to apply for a waiver in situations that are approved all of the time.

Still, I do not expect any legislation to address this concern because I can’t imagine a U.S. politician advocating a law to broaden the scope of “criminals” who are admissible to the U.S. A compromise would be to give border inspectors more discretion in allowing individuals into the U.S. A supervisor, for example, should have the authority to review someone’s record and allow a crossing if he felt that a waiver application would be a 100 per cent certainty.

Hours of service

Changes on their way

The hours of service rules in the U.S. have remained largely unchanged for more than 60 years. And with Canada, the U.S. Department of Transportation has conducted numerous studies on the causes and effects of fatigue on long-distance drivers, in an effort to develop a new hours of service structure that will meet the drivers’ needs and maximize road safety.

The DOT is under a mandate to revise the hours or service rules. Expect a formal proposal on the new rules next year.

Franchise taxes: Trouble in

Pennsylvania and Michigan

Due in large part to a challenge by the Ontario Trucking Association, the New York State Franchise Tax format has changed dramatically from a tax based on gross receipts, to a tax based on net income. Similarly, challenges by out-of-state motor carriers forced the State of Pennsylvania to create a more objective standard for determining the threshold at which Canadian and other out-of-state carriers are subject to a tax for business activities within Pennsylvania.

Expect more enforcement in Pennsylvania as the State Tax Department reviews the activities of Canadian carriers over the past few years, to determine whether they failed to file tax returns and pay the required taxes. Potential trouble is brewing in Michigan as well, as the state determines whether it should change its stance regarding Canadian carriers.

In 1992, Michigan determined that Canadian carriers are not subject to taxation for their activities in the state unless the carrier has a terminal or other physical premises within its borders. Now Michigan is considering whether a lower standard should be required, such as number of miles driven, number of pickups and deliveries within the state, or a combination of such factors. A current proposal calls for a change effective Jan. 1, 2000, although nothing had been heard by the time we went to press. n

– Daniel Joyce can be reached at Hirsch and Joyce, Attorneys at Law, at 716-564-2727.

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