Cabotage rules enforcement spike ongoing from Southern border areas

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Updated Jan 15, 2021

A Homeland Security Investigations (HSI) team, in cooperation with Customs and Border Protection agents, is investigating violation of cabotage rules by U.S. companies and foreign drivers otherwise engaged in cross-border trucking operations. Those rules prevent foreign nationals in the U.S. on B-1 business-visitor visas from competing with U.S. truckers on loads moving point to point in the United States.

Cabotage rules agreed to between Mexico, Canada and the United States allow each country’s drivers to participate in the international stream of commerce but not another country’s domestic market.Cabotage rules agreed to between Mexico, Canada and the United States allow each country’s drivers to participate in the international stream of commerce but not another country’s domestic market.

Last week in Nogales, Ariz., HSI agents took along local reporters from ABC television affiliate KGUN 9 during an operation in an effort to shine a light on the issue. Deputy Special Agent in Charge Francisco Burrola of HSI out of Tuscon told Overdrive he hopes their enforcement work “sends shockwaves through the trucking industry, particularly along the Southwest border.”

A particular current, ongoing investigation has centered on five U.S. companies, he says, essentially offering drivers bringing loads into the commercial zone for drop and transfer to U.S. companies a deal to skirt the cabotage rules.

“If I’m driving an 18-wheeler coming from Sinaloa, and my destination is Nogales,” he says, “I’ll drive it into the U.S. and drop it at the destination point. When I get unloaded,” typically the driver would deadhead back or hook to another load headed to Mexico. In the cases violating the rules, however, the “U.S.-based company then hires the [Mexican] driver to take the load to Los Angeles,” for instance, he says. “That’s what was occurring here.”

As of Overdrive reporting early this month on the new United States-Mexico-Canada Agreement (USMCA) reached to modify NAFTA, just 41 Mexican carriers, according to most recent figures on the website of the Federal Motor Carrier Safety Administration, “currently have authority to operate outside of the commercial border zone within the U.S.” under the relatively young long-haul cross-border program. For other cross-border carriers and their drivers, then, access to longer-haul international loads is off-limits, perhaps increasing the attractiveness of the cabotage-violation schemes HSI is investigating.

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“The problem we have here is Mexican B-1 drivers bringing loads into the U.S. along the border,” Agent Burrola emphasizes, “then picking up new loads and going further into the U.S., taking work [for less pay, generally] from U.S. truckers.”

The origins of the recent investigation in particular, specifics of which HSI, a division of Immigration and Customs Enforcement, said it was too early to share in total, stretch back more than a year. In some ways, you might consider it as a branch of ICE’s longstanding worksite enforcement program, which targets employers who flout foreign-national employment rules.

Illegal employment of foreign workers in the U.S. “causes human smugglers to smuggle foreign nationals in,” Burrola says. “You create the migration flows of individuals. When we talk about worksite enforcement,” HSI is involved in the review of U.S. company compliance with the rules, and “we put them on notice if they’re not legal to work.”

The recent trucking case he calls “something of the same thing.” B-1 drivers from Mexico “become illegal once they take that [domestic] load.”

As early as September of 2017, “we saw an increase of B-1 drivers” working the Nogales area, Burrola says. “ICE was getting tips from truckers being fired from their jobs because B-1 drivers were taking them. HSI was receiving tips, and border patrol was seeing an increase — they provided a history of B-1 drivers crossing the border, and they’d put the trucking community on notice in Nogales” early this year over cabotage violations that “B-1 drivers doing it would be arrested over their immigration status.”

HSI has seen evidence of company workarounds for evading increased attention at commercial-zone checkpoints into the U.S. interior. HSI Special Agent in Charge Scott Brown called one such strategy “driver swaps” in KGUN 9’s report about the raid last week:

“A lot of these companies created a very simple and brazen scheme to be able to continue to violate the law where they’re having U.S. truckers, oftentimes the trucking company owners or family members, drive the trucks through the checkpoint,” Brown told KGUN’s Craig Smith. “Once they get past the Border Patrol checkpoint the driver is being swapped out for a Mexican driver oftentimes within a matter of a couple miles of the checkpoint, then they’ll continue on to the end destination.”

Agent Burrola says the worksite program has been applied to trucking for many years along the border, but “we never thought we’d see that companies would go to this extent. The B-1 driver is legally here. We didn’t think they’d draw that B-1 driver” then to deliver loads point to point in the U.S.

Companies engaging in such practices could “stand to lose the vehicles that were utilized” and perhaps more in penalty phases, Burrola says. “As we progress in our investigation, there could be more to weigh heavily on the defendants.”

Burrola, ultimately, believes his agency may have “cracked the shell of something that could be bigger.” He shared case details with HSI units at every port of entry along the border. They’ll have his unit’s playbook to use if they see similar things happening.

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