Publication
Nonessential Mexico-Canada-U.S. Travel Restricted at Land Ports of Entry
By Brett W. Johnson and Ian Joyce
U.S. Customs and Border Protection (“CBP”) on Friday morning issued notifications that temporarily restrict all nonessential travel from Canada1 and Mexico2 into the United States. These restrictions only apply to land ports of entry, passenger ferry services, and passenger rail services. Air travel, non-passenger freight rail, and sea travel are not impacted. The restrictions will go into effect on March 20 and will last until April 20, although CBP retains discretion to “amend or rescind” the policy as needed. Companies should be aware of CBP’s notifications to determine potential impact on business operations, employee transit, and supply chain operations.
Importantly, travel for the purposes of engaging in cross-border trade (e.g., truck drivers moving cargo) is explicitly defined as “essential.” “Traveling to work” in the U.S. is also explicitly included in the definition of “essential” travel. The notifications only list one type of “nonessential” travel: tourism. Tourism includes sightseeing, recreation, gambling, or attending cultural events. Further, the CBP Commissioner retains discretion to determine that “other forms of travel, such as travel in furtherance of economic stability or social order” constitutes essential travel. Moreover, the CBP Commissioner may grant individual exceptions to the travel restrictions, for “humanitarian reasons” or “other purposes in the national interest.”
These restrictions were mutually agreed upon between the U.S. and Mexico, and the U.S. and Canada. As such, Canada and Mexico will likely impose similar restrictions on U.S. to Canada or Mexico travel.
Based on this scope, it is expected that ground-based trade will likely be unaffected by the notifications (in fact, the notifications stress that they should not be read to “interrupt legitimate trade between the two nations”). However, it is possible that supply chain vendors may attempt to utilize these notifications, and other similar notifications or bilateral agreements related to Canada and Mexico transit, to claim undue delay, material change, impossibility, force majeure, or other affirmative defenses to justify or excuse contract nonperformance.
While ground-based trade is clearly exempted from the notifications, there is considerable ambiguity regarding what constitutes “work” related travel. The notifications provide only limited guidance here. The notifications explain that work related travel encompasses “individuals working in the farming or agriculture industry who must travel between” the U.S. and Canada, or the U.S. and Mexico, “in furtherance of such work.” This appears to contemplate cross-border travel that is inherent to the job performed—as opposed to work that could be conducted through telephone or email. This interpretation would be consistent with other “essential” travel definitions, notably those issued by public universities.3 Until CBP issues further guidance, all individuals traveling from Canada or Mexico (or any other country) to the U.S. for work related purposes should ensure they have a compelling reason that is supported by actual documentation. The ability to show viable documentation that the travel is necessary for work will be important to avoid unnecessarily delaying any transit.
Footnotes
Notification of Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service Between the United States and Canada, Dept. Homeland Security, available at https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-06217.pdf
Notificatoin of Temporary Travel Restrictions Applicable to Land Ports of Entry and Ferries Service Between the United States and Mexico, Dept. Homeland Security, available at https://s3.amazonaws.com/public-inspection.federalregister.gov/2020-06253.pdf?utm_campaign=pi+subscription+mailing+list&utm_source=federalregister.gov&utm_medium=email.
See Definition of Essential Travel in Response to COVID-10, Colo. State Univ., available at https://safety.colostate.edu/definition-of-essential-travel-in-response-to-covid-19/ (Defining essential travel as travel required to “preserve the safety of a research subject and cannot be postponed” or “preserve the results of a research activity and cannot be postponed.”).
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