As published in the Financial Post:
The deal, meant to speed up two-way trade valued at more than $2 billion per day, is at the mercy of a U.S. legislative session in its last gasps
A border agreement to expedite the movement of people and goods across the Canada-U.S. border has stalled and will likely depend on a lame-duck session of the U.S. Congress to get the boost it needs to become law.
U.S. President Barack Obama and now-former Prime Minister Stephen Harper signed the Canada-U.S. preclearance agreement in March 2015. But it has yet to be implemented, because it is awaiting enabling legislation in both countries.
The Canadian government, businesses and lobby groups are all pushing to move the necessary legislation through the U.S. Congress before the end of the year. They hope that a bill will pass between the election and inauguration, the lame duck session. In Canada, Bill C-23 passed first reading in the House in June.
"The new agreement is really important for Canada and the United States," Maryscott Greenwood, spokesperson for the Canadian American Business Council, said. "It both expedites legitimate commerce, which is really important to our economies, but it also, by being more efficient, frees up resources for law enforcement to go after the things that they look for."
About 400,000 people cross the Canada-U.S. border daily. Canada is the United States' second-largest trading partner, with two-way trade valued at more than $2 billion every day.
"We will be working with the proponents in Congress and in the administration … to get (preclearance) done," David MacNaughton, Canadian ambassador in the United States, recently told The Canadian Press. "We're hoping and expecting that they will pass the legislation by the end of the year."
Preclearance facilities already exist at eight Canadian airports. The new deal will expand preclearance to two new airports, Billy Bishop in Toronto and Jean Lesage Quebec City, to the Montreal train station and Rocky Mountaineer in Western Canada. It will also allow for future expansion in other air, rail and marine facilities.
Preclearance "allows us to consider flying to U.S. airports that do not have customs facilities," says Brad Cicero, spokesperson for Porter Airlines, which operates out of Billy Bishop airport in Toronto. Porter carries more than 400,000 passengers to the United States every year, he says, and "preclearance will allow us to expand the benefits of this existing relationship by streamlining existing routes and opening the door to new destinations."
Although the bill has the support of both U.S. parties, Congress is currently adjourned, and won't return until after the election, on Nov. 14. At that point it has very few sitting days before the end of the year.
"This is essentially an Obama administration initiative, and it has bipartisan support currently in the Congress," Greenwood said. "We don't know who the next president will be and we don't know what the makeup of the Congress will be. You'd have to start again politically."
Both the House and Senate have drafted bills to address preclearance. But there is faint hope that they will advance far enough in the time left.
Experts say it's possible to pass legislation using the Department of Homeland Security appropriations bill. "The language seems to be in the bill but there's some question marks as to whether that's going to get through," said Daniel Ujczo, an international trade lawyer who specializes in Canada-U.S. issues at Dickinson Wright.
Including this type of legislation in an appropriations bill has been done before. Last year, Congress repealed country of origin labelling rules, that were hurting Canadian farmers, through their omnibus appropriations bill.
Even so, legislation in the United States "moves like molasses in January," Greenwood said. "Our system is, by design, incredibly inefficient."
Even though preclearance legislation is what Ujczo calls "the definition of low-hanging fruit," it is still far from clear whether it will happen this year.
"We don't even need everyone to agree, we just need them not to oppose it. Or at least to pay attention to it. We are not aware of any opposition. It's just laid dormant," he said. "It's going to take a Hail Mary to get this passed."
Sarah Reid is a freelance journalist based in Toronto. Follow her @sarahcreid