2011 UP Settlement Could Impact Bridge Dispute

EL PASO — As a stalemate between Cameron County and federal officials threatens to stall a $100 million border rail project, federal lawmakers are eyeing a settlement between U.S. Customs and Border Protection and rail power Union Pacific as a means to a potential solution.

Cameron County officials had sought to have the West Rail Bypass International Bridge in Brownsville open by the end of this year. But county leaders are at odds with CBP over who should fund the relocation of an X-ray machine that scans cargo for narcotics, illicit cash and other contraband. The price tag to move the unit, called a Vehicle and Cargo Imaging System, from its current site about seven miles away is about $1.5 million. Once completed, the bridge would be the first rail line to connect Texas and Mexico, the state’s largest trading partner, in more than a century.

The disagreement has prompted U.S. Rep Filemon Vela, D-Brownsville, to file legislation that would give lawmakers a say on the terms of a court settlement between Union Pacific and CBP. The settlement came after CBP levied more than $500 million in fines against UP for having narcotics on trains the rail line said originated in Mexico. The rail line argued that it followed the law and that CBP lacked the authority to assess the fines.

Under the terms of the 2011 agreement, the $500 million in civil penalties would be mitigated and UP would allot $50 million for the “21st Century Binational Secure Border Corridor” for border security projects, which are coordinated by a “fusion center” made up of CBP and UP officials and other stakeholders. About $8 million has been spent; rail inspection ports in Eagle Pass and El Paso have received upgrades, and more Texas projects are in the design stages. All the rail ports on the border have undergone site and risk assessments to identify areas of improvements or concern, and ports in Arizona and California have also received some additional upgrades.

Although funding has not been set aside for the transfer of the Cameron County X-ray machine, the legislation could open the door for such an allotment.

Vela said he hoped his legislation would add some teeth to the terms of the agreement. The final draft is still being decided, but he said the bill would mandate that all ports were treated the same.

“It’ll be coming from the congressional standpoint,” he said. “CBP on their own can use the monies to go do this, but they just decided unilaterally on their own that they don’t want to. My gut my feeling is that CBP has decided — let me clarify: that individual leadership at CBP has taken the perspective — that that [settlement] money belongs to them. And that neither the public or other federal agencies on Congress should have any say on how it’s being used.”

Union Pacific officials directed questions about how border-security projects are decided and funded to CBP. The federal agency instead only referred to a 2011 news release announcing the settlement. In August, CBP officials said that with respect to the X-ray machine, the presidential permit that approved the bridge project stated clearly the county was supposed to fund the relocation.

But Vela also wonders whether the machine should be replaced. He says it was installed more than 10 years ago, which, according to the manufacturer, Science Applications International Corporation, is its optimum life span. But CBP officials said the radiation source was recently replaced and the unit is 99 percent operational. Additional upgrades haven’t been performed, however, and email exchanges between Vela’s office and SAIC say representatives for the manufacturer show that the “useful” life for the machine is unknown.

The company also recommends against moving an existing machine.

“In order to minimize the risk of contraband and other threat-related objects from entering the U.S., the simple relocation of cargo inspection technology from an existing operating location is not a recommended approach,” the company said in an email to Vela’s office. “This is because during the time it takes to de-install this one inspection system and move to the new site, setup and install to a state of readiness can take time.”

The cost to install a new unit, however, is about $4.5 million, but CBP has said it will not have funding for such a project for at least four more years.

Ongoing Dispute

Though the terms of the settlement between UP and CBP stated that the $500 million in fines would be mitigated, the agreement also said the two sides must agree “on a new process and new standards under which future drug discoveries will be evaluated for the next five years.”

Officials said recently that the talks are ongoing.

“While we have a fruitful, important and cooperative partnership with CBP, the underlying issue regarding the imposition of penalties for contraband found on trains interchanged with UP at the southern border crossings has not been resolved,” Raquel Espinoza, UP’s media director for the Southwest Region, said in an email. “The CBP and UP Working Group, which consists of personnel from both organizations, meets weekly to discuss border security investments at UP crossings.”