Not long ago, the U.S. Immigration and Naturalization Service drafted a memo titled “Cabotage Rules for Canadian Drivers” — a sort of “Cabotage 101”-style notice explaining in broad terms the type of work Canadian truck drivers can and cannot do when operating in the United States.

Instead of providing clarity, the handout only illustrates conflicting government policies on what foreign equipment can do versus what’s allowable for drivers, says Jeremy Kahn, a transportation attorney in Washington, D.C. “What’s a trucking company to do when its equipment is allowed to perform certain moves, but not its drivers? The result is confusion and operational inefficiencies for Canadian carriers, which, I would argue, is not in the spirit of free trade.”

Kahn is representing 19 Quebec-based carriers who want a federal court to order INS to issue clear and more reasonable policies toward foreign drivers who move international loads and equipment. The carriers aren’t asking for the ability to solicit domestic freight in the United States, Kahn explains. “What we want is for INS to issue formal interpretations of its policies for the first time since 1980. The rules are out of date given the trucking and free trade environment of today, and are out of step with how U.S. Customs treats equipment cabotage.”

The complaint, Transport Robert v. the U.S. Immigration and Naturalization Service and United States of America, was filed Jan. 25 in the U.S. District Court for Washington, D.C. It is expected to be heard by a judge this fall. Essentially, Kahn and the 19 carriers want INS to harmonize its policies with those issued four years ago by U.S. Customs. INS prohibits Canadian drivers from repositioning empty trailers unless the driver brought the trailer into the country or is departing with it. U.S. Customs does not consider the repositioning of empty trailers to be domestic transportation.

U.S. Customs also allows a foreign truck to move goods domestically as long as the truck is en route to pick up an export load, or is heading back to its home country. Because the INS prohibits a Canadian driver from making this move, few companies are able to take advantage of it.

The punishment for violating immigration rules can be stiff: drivers risk arrest or being barred from re-entry to the United States. “Ordinarily, if you want INS to change its policy, you have to break the rules, suffer a penalty, and then appeal,” Kahn says. “The process could take years. It’s unreasonable — in fact, ‘unconscionable,’ is the word one judge used — to do that to a truck driver. Drivers, as you can understand, are reluctant to take certain loads even if the company says it’s OK, because they’re the ones who are going to get hurt for it.

“What we’re telling the district court is that we’d like to go to the agency for a ruling, but that the agency’s typical response would impede a driver’s ability to make a living. That’s why we’re asking a judge to step in.”

The issue is less of a concern for U.S. drivers, Kahn says, because most of the Canadian population and Canadian industry is within 100 miles of the border. “You don’t have Americans running into Canada the way Canadians run deep into the United States,” he says. “To deny Canadian carriers the operational flexibility that is already allowed for their equipment violates the spirit of free trade between the two countries.”

He adds that it’s important to note that the carriers are not seeking participation in the local labor market. “More and more contracts are requiring companies to drop trailers,” Kahn explains. “If you can’t efficiently reposition equipment, you can’t participate in those contracts.”

Among the moves Kahn wants INS to permit:

* Relief drivers and trailer switches. Two Canadian truck drivers should be allowed to meet at a prearranged location and switch trailers in order to comply with hours of service rules. Say you’re bringing a load from Philadelphia to Chicoutimi. You meet up in Concord, N.H., with another driver from your company on his way to Montreal. He’s got eight hours left to burn on his logbook, while you’ve got four and a half. Why not drop and switch the trailers so you can go to Montreal and he can head up to Chicoutimi?

* Limited intra-U.S. moves. A Canadian driver should be allowed to drop off goods to a warehouse in the United States and pick up freight destined for another U.S. location, provided that the goods originated in Canada. “A Canadian driver is simply delivering freight that originated in Canada,” Kahn says. “Those goods may have been stored temporarily at a warehouse in Detroit, but they’re still international in origin and destination. They’re goods flowing in the international stream of commerce.”

Furthermore, a Canadian driver should be allowed the same intra-U.S. liberties as his equipment.
“Let the Canadian driver make one interstate move after dropping his freight in the United States, so long as the second U.S. location is in the general direction of an export move to Canada,” Kahn says. At that second point, the driver could pick up another load destined for Canada.

Not everyone thinks a lawsuit is the best way to create change. Graham Cooper, director of government affairs with the Canadian Trucking Alliance, agrees that the United States needs to clarify its policies on the treatment of foreign truck drivers, but says only a negotiated settlement between both countries would create a level playing field.

“There are major inequities in the way immigration policies are enforced on both sides of the border, with Canada being much more liberal toward the moves American truck drivers can make,” Cooper explains.

“If fairness and the facilitation of free trade are the goals, a negotiated agreement on what is reasonable and allowable is preferred. While the going is slow, there has been progress. But now, in practical terms, I doubt INS will come to the table when there are Canadians fighting them in court.”

U.S. immigration officials, for that matter, say this is not the kind of case the court should be deciding, that it is a matter of public policy.

Kahn has been a transportation attorney for 25 years and has been hearing about this issue during his entire career. At some point, he says, you have to assume that if there were to be a negotiated settlement, it would have been reached by now.

“In the United States, suing the government is one way we formulate our laws and refine the applications of certain rules,” Kahn explains. “However, this is an unusual case. What the judge can do to help us is not clear. Certainly, he’s not going to redraft immigration law. But he can impress upon INS that the agency needs to do something to clarify its policies.”