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Special Report: Fast talks, interim ruling diffuse explosive situation

NORTH BAY, Ont. - Following two weeks of whirlwind lobbying, Canadian trucks and drivers carrying explosives are rolling across the border again after a temporary solution has been reached with U.S. a...


BUSINESS AS USUAL?: Eric Nickle is a driver trainer with North Bay's Pro North Transportation, which is a principal carrier of explosives for ETI canada. Photo by Brandi Cramer
BUSINESS AS USUAL?: Eric Nickle is a driver trainer with North Bay's Pro North Transportation, which is a principal carrier of explosives for ETI canada. Photo by Brandi Cramer

NORTH BAY, Ont. – Following two weeks of whirlwind lobbying, Canadian trucks and drivers carrying explosives are rolling across the border again after a temporary solution has been reached with U.S. authorities.

An interim ruling issued Feb. 3 by the U.S. Department of Transportation (USDOT) and the Transportation Security Administration (TSA) allows Canadian explosives manufacturers, carriers and drivers to ship explosives across the border as long as they’re on an approved list.

The 30-day ruling, in effect until Mar. 10, gives the two federal governments and their involved agencies some breathing space to work out a more permanent process for security checks of drivers hauling explosives across the border.

The DOT says the interim ruling needed to go into effect immediately because “there is potential for a serious disruption of transborder transportation.”

The interim ruling followed two weeks of whirlwind lobbying by the Canadian Trucking Alliance (CTA) and hasty talks between Ottawa and Washington after the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) dropped a bomb on the transportation industry by announcing that as of Jan. 24 it would prohibit Canadian resident drivers from taking explosives shipments across the border, under the terms of the new U.S. Safe Explosives Act.

The legislation, enacted last Nov. 25 as part of Homeland Security, requires anyone in the U.S. who applies for explosives licences and permits to undergo a time-consuming, thorough background check and fingerprinting, and prohibits anyone who is not a U.S. resident from possessing explosives including for the purposes of transportation.

Surprising announcement

But the ATF proclamation came as a complete surprise to everyone in the explosives manufacturing and cross-border commercial transportation industries, says Ken Siegel, a Washington, D.C., attorney who works on U.S. legal affairs for the CTA and the Ontario Trucking Association (OTA).

“When the law was being written, I think people didn’t realize what the effect was going to be. That it applied to transportation,” says Siegel.

“You basically had a group that didn’t realize there was a problem.

That’s because the USDOT has always had authority over motor carriers operating in the U.S., and the ATF never told anyone that it intended to exercise authority on commercial transportation until the last minute.

U.S. officials didn’t inform the CTA that ATF would enforce the ban on Canadian motor carriers and drivers until mere days before it was scheduled to go into effect on Jan. 24.

While the ban on Canadian drivers was deemed an “unintended consequence” of the Safe Explosives Act, the proclamation by the ATF set off panic buttons on Jan. 24.

Desperate measures

North Bay, Ont.-based ETI Canada, the country’s largest commercial explosives manufacturer, was forced to turn to American carriers “to ensure our business continues,” Ron Leboeuf, customer service manager at ETI, said in a telephone interview that morning.

ETI has operations across the U.S. and “more than half our total productivity” is exported to the U.S., Leboeuf says.

Not being able to use Canadian drivers would mean a “substantial increase in cost for our business and the whole industry,” he says.

Intense lobbying

Meanwhile, the crisis set off intense lobbying by the CTA and whirlwind talks between Ottawa and Washington to find a fast political solution to the situation – the situation that threatened the livelihood of everyone in Canada who profits or earns their living from the cross-border transportation of commercial explosives.

That saw implementation of the ban delayed while U.S. agencies sorted out who had jurisdiction – the ATF and Department of Justice (DOJ) or the USDOT.

U.S. authorities kept extending a reprieve on implementation of the ban, keeping Canadian explosives shippers and carriers in limbo.

And they’re still feeling the ripple effects of the bomb that the ATF dropped on the industry.

“We’ve lost loads because of it,” says Eric Nickle, driver trainer for Pro North Transportation, the principal carrier for ETI Canada. Business for his 200 explosives drivers dwindled when the ban was supposed to go into effect and then reprieves kept being issued.

Nickle says Pro North lost business because it was put in a situation where it couldn’t accept explosives loads, not knowing whether its drivers would be allowed to cross the border 24 hours later.

Previous to the crisis, Pro North shipped five to 15 loads of explosives per week to the U.S. for ETI, says Nickle.

He is “hopeful” that some of the lost business isn’t gone permanently and can be recovered through a good working relationship with ETI Canada.

“It put kind of a crimp in our team operations,” Nickle adds, because explosives drivers must be in teams, and they had to be rescheduled on other runs in order to keep their hours up.

Costly situation

The crisis also cost Pro North for background checks on its drivers by the local OPP detachment.

“We were half way through our drivers when I stopped it,” Nickle says.

Once U.S. agencies sorted out that the USDOT had jurisdiction over the commercial transportation of explosives, however, a temporary solution to the problem turned out to be simple and was reached quickly, says Siegel.

The interim solution was for the CTA, Transport Canada and Natural Resources Canada to provide the U.S. Transportation Security Administration (TSA) and U.S. Customs Service with a list of Canadian drivers, carriers and shippers of explosives.

U.S. security satisfied

The DOT says this requirement was “sufficient” to deal with any risk to U.S. security that the use of Canadian drivers pose, and the ruling effectively overrides the ATF’s attempt at a ban on Canadian drivers.

“We sat there for three hours and came up with a solution,” says Siegel of talks on Jan. 30 between a host of Canadian and U.S. government agencies including the RCMP, Canada Customs and Revenue Agency (CCRA), the USDOT, the Federal Motor Carrier Safety Administration (FMCSA), the CTA, the American Trucking Associations (ATA) and explosives industry manufacturers.

“At that point you felt, ‘ah, it’s resolved.'”

He says coming up with a solution to the international problem in two weeks “is unbelievable” because it normally takes years for the USDOT to come up with rule changes.

“It was an unusual way of doing business for both governments. Normally there would be memos and proposed rules. I think everybody there felt it was a very good way of getting work done,” says Siegel.

Nickle says he was “absolutely” relieved to see the interim ruling in place and learn that all of Pro North’s drivers are on the approved list.

“The CTA, Transport Canada and Natural Resources Canada certainly went to bat for us,” he says.

When contacted at press time for his reaction to the interim solution and whether ETI Canada would start using its Canadian principle carrier again, Leboeuf refused to discuss the explosives issue any further in a follow-up interview.

“This issue is still very fluid,” cautions David Bradley, chief executive officer of the CTA, “As this protocol is only a temporary measure. Consultations must be complete between Canada and the U.S. to put in place a permanent process for security checks of drivers operating across the border.”

Excessive red tape

“If FAST was the major way to do things then everybody else could pull from that,” said Nickle when asked what solution he’d like to see.

“At the moment our drivers are looking at three to four levels of approval and it really makes it tough on them and on the carriers.”


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