Questionable Moves: Seized in America

The letter from the U.S. Immigration and Naturalization Service arrived on Denis Coderre’s desk last month: the agency had reviewed its impoundment of Coderre’s tractor at Champlain, N.Y., on Sept. 1 and found that the action was justified, it said. Coderre was told he could have his truck back. All he had to do was send a check for 10% of the truck’s value, sign a few papers, cut through some more red tape.

Coderre, owner of SGT 2000 Inc., a 1500-vehicle truckload carrier based in St. Germaine de Grantham, Que., isn’t the only Canadian fleet owner on the receiving end of such a letter from INS. Clermont Gagnon of St. Pamphile Transport, down the road in St. Pamphile, Que., received similar correspondence. So did Stephen Evans of H&R Transport, 2000 miles west in Lethbridge, Alta.

All three men belong to a dubious fraternity: their companies have had vehicles seized in the United States and their drivers deported for what was interpreted as a violation of U.S. immigration laws.

The confusion stems from a more liberal policy on cabotage implemented by U.S. Customs last March. The agency now permits Canadian trucks to pick up and deliver goods between two points in the United States, so long as the truck is en route to pick up an export load or is heading back to Canada.

However, the policy change governs equipment only. Under immigration rules, it’s still illegal for foreign drivers to make domestic moves (the INS is on record last February as opposing the Customs deal with Canada because it feared that “lower-cost foreign drivers” would take over U.S. truckers’ jobs).

If the driver’s log shows he has been in the United States and made a domestic trip, the INS inspector may find him in violation of immigration rules, order him “voluntarily deported,” and impound his truck. Companies then must send new drivers across the border to pick up the loaded trailers.

One company tripped up by the immigration rules is Gagnon’s St. Pamphile Transport. Gagnon, who has about 20 trucks a day entering the United States, was ordered to pay a fine of $9046 US (plus daily storage charges of $5.08 and $145 for towing) before his truck would be released back to him.

Gagnon says he now understands the INS rules, and reluctantly accepts the fine. But he is distressed by the lengthy impoundment and the uncommunicative nature of the INS. Communications are by letter, and anxious phone calls are rarely returned.

“They wouldn’t talk to us,” Gagnon says. “They never returned our calls or let us meet them.”

Perhaps more confusing, Canadian truckers are being picked up for making simple switches of equipment and freight.
The SGT truck was carrying newsprint from Quebec to Washington, D.C. The driver, as he approached Albany, N.Y., had just about used up his allotment of allowable hours of service.

Another company driver, freshly rested, was heading to Canada from New Jersey with an FAK (freight all kinds) cargo. The fresh driver was routed to Albany, where he switched his tractor to the newsprint trailer and headed to Washington.

The first driver, after his rest at Albany, took the FAK load to Canada. At the border crossing between Champlain, N.Y., to Lacolle, Que., an INS check of his logbook showed he was not the driver who started out with that load. There was no U.S. domestic cargo involved, but INS agent interpreted the swap as illegal.

Coderre reckons SGT has lost $5000 to $7000 per week in profit since the truck was seized.

H&R Transport in Alberta, which has 700 vehicles in Canada and 500 at its Utah-based U.S. division, ran into the same problem when it switched drivers for rest and efficiency reasons on a run from Calgary to Los Angeles.

“It doesn’t make sense that switching trucks among three Canadian loads, not in any way opening or changing the loads, is any kind of INS infraction,” said Stephen Evans, H&R’s director of safety and risk management. “We paid up to get our truck back, but we remain puzzled about it.”

Nearly two dozen companies have reported truck seizures at the hands of the INS this year, says Massimo Bergamini, vice-president of the Canadian Trucking Alliance. The CTA has been lobbying immigration officials in Canada and United States to see whether changes in interpretation of the INS rules can be made without going the long and risky route of amending the INS law in Congress, he says.

Daniel Joyce, a Buffalo, N.Y., lawyer for SGT Inc., believes negotiations between the two countries that began Oct. 7 will result in a compromise on the trailer-switching issue.

Meanwhile, a spokesperson for the INS says the agency will continue to enforce the current regulations. Eyleen Schmidt says American truckers are subject to similar policies in Canada, although officials here have not been enforcing immigration rules as rigorously as their U.S. counterparts.

For his part, Coderre wants the Canadian government to do just that-to start seizing U.S. trucks and drivers-if the problem on the other side of the border isn’t resolved soon. s
The Canadian Trucking Alliance has been building a case file on INS interpretations of cabotage policy; for information, call 613/236-9426.

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