[Federal Register Volume 73, Number 65 (Thursday, April 3, 2008)]
[Notices]
[Pages 18293-18294]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 08-1095]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF HOMELAND SECURITY

Office of the Secretary


Determination Pursuant to Section 102 of the Illegal Immigration 
Reform and Immigrant Responsibility Act of 1996, as Amended

AGENCY: Office of the Secretary, Department of Homeland Security.

ACTION: Notice of determination.

-----------------------------------------------------------------------

SUMMARY: The Secretary of Homeland Security has determined, pursuant to 
law, that it is necessary to waive certain laws, regulations and other 
legal requirements in order to ensure the expeditious construction of 
barriers and roads in the vicinity of the international land border of 
the United States.

DATES: This Notice is effective on April 3, 2008.
    Determination and Waiver: I have a mandate to achieve and maintain 
operational control of the borders of the United States. Public Law 
109-367, Sec.  2, 120 Stat. 2638, 8 U.S.C. 1701 note. Congress has 
provided me with a number of authorities necessary to accomplish this 
mandate. One of these authorities is found at section 102(c) of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 
(``IIRIRA''). Public Law 104-208, Div. C, 110 Stat. 3009-546, 3009-554 
(Sept. 30, 1996) (8 U.S.C 1103 note), as amended by the REAL ID Act of 
2005, Public Law 109-13, Div. B, 119 Stat. 231, 302, 306 (May 11, 2005) 
(8 U.S.C. 1103 note), as amended by the Secure Fence Act of 2006, 
Public Law 109-367, Sec.  3, 120 Stat. 2638 (Oct. 26, 2006) (8 U.S.C. 
1103 note), as amended by the Department of Homeland Security 
Appropriations Act, 2008, Public Law 110-161, Div. E, Title V, Section 
564, 121 Stat. 2090 (Dec. 26, 2007). In Section 102(a) of IIRIRA, 
Congress provided that the Secretary of Homeland Security shall take 
such actions as may be necessary to install additional physical 
barriers and roads (including the removal of obstacles to detection of 
illegal entrants) in the vicinity of the United States border to deter 
illegal crossings in areas of high illegal entry into the United 
States. In Section 102(b) of IIRIRA, Congress has called for the 
installation of fencing, barriers, roads, lighting, cameras, and 
sensors on not less than 700 miles of the southwest border, including 
priority miles of fencing that must be completed by December 2008. 
Finally, in section 102(c) of the IIRIRA, Congress granted to me the 
authority to waive all legal requirements that I, in my sole 
discretion, determine necessary to ensure the expeditious construction 
of barriers and roads authorized by section 102 of IIRIRA.
    I determine that the areas in the vicinity of the United States 
border described on the attached document, which is incorporated and 
made a part hereof, are areas of high illegal entry (collectively 
``Project Areas''). These Project Areas are located in the States of 
California, Arizona, New Mexico, and Texas. In order to deter illegal 
crossings in the Project Areas, there is presently a need to construct 
fixed and mobile barriers (such as fencing, vehicle barriers, towers, 
sensors, cameras, and other surveillance, communication, and detection 
equipment) and roads in the vicinity of the border of the United 
States. In order to ensure the expeditious construction of the barriers 
and roads that Congress prescribed in the IIRIRA in the Project Areas, 
which are areas of high illegal entry into the United States, I have 
determined that it is necessary that I exercise the authority that is 
vested in me by section 102(c) of the IIRIRA as amended.
    Accordingly, I hereby waive in their entirety, with respect to the 
construction of roads and fixed and mobile barriers (including, but not 
limited to, accessing the project area, creating and using staging 
areas, the conduct of earthwork, excavation, fill, and site 
preparation, and installation and upkeep of fences, roads, supporting 
elements, drainage, erosion controls, safety features, surveillance, 
communication, and detection equipment of all types, radar and radio 
towers, and lighting) in the Project Areas, all federal, state, or 
other laws, regulations and legal requirements of, deriving from, or 
related to the subject of, the following laws, as amended: The National 
Environmental Policy Act (Pub. L. 91-190, 83 Stat. 852 (Jan. 1, 1970) 
(42 U.S.C. 4321 et seq.)), the Endangered Species Act (Pub. L. 93-205, 
87 Stat. 884 (Dec. 28, 1973) (16 U.S.C. 1531 et seq.)), the Federal 
Water Pollution Control Act (commonly referred to as the Clean Water 
Act) (33 U.S.C. 1251 et seq.)), the National Historic Preservation Act 
(Pub. L. 89-665, 80 Stat. 915 (Oct. 15, 1966) (16 U.S.C. 470 et seq.)), 
the Migratory Bird Treaty Act (16 U.S.C. 703 et seq.), the Clean Air 
Act (42 U.S.C. 7401 et seq.), the Archeological Resources Protection 
Act (Pub. L. 96-95, 16 U.S.C. 470aa et seq.), the Safe Drinking Water 
Act (42 U.S.C. 300f et seq.), the Noise Control Act (42 U.S.C. 4901 et 
seq.), the Solid Waste Disposal Act, as amended by the Resource 
Conservation and Recovery Act (42 U.S.C. 6901 et seq.), the 
Comprehensive Environmental Response, Compensation, and Liability Act 
(42 U.S.C. 9601 et seq.), the Archaeological and Historic Preservation 
Act (Pub. L. 86-523, 16 U.S.C. 469 et seq.), the Antiquities Act (16 
U.S.C. 431 et seq.), the Historic Sites, Buildings, and Antiquities Act 
(16 U.S.C. 461 et seq.), the Wild and Scenic Rivers Act (Pub. L. 90-
542, 16 U.S.C. 1281 et seq.), the Farmland Protection Policy Act (7 
U.S.C. 4201 et seq.), the Coastal Zone Management Act (Pub. L. 92-583, 
16 U.S.C. 1451 et seq.), the Wilderness Act (Pub. L. 88-577, 16 U.S.C. 
1131 et seq.), the Federal Land Policy and Management Act (Pub. L. 94-
579, 43 U.S.C. 1701 et seq.), the National Wildlife Refuge System 
Administration Act (Pub. L. 89-669, 16 U.S.C. 668dd-668ee), the Fish 
and Wildlife Act of 1956 (Pub. L. 84-1024, 16 U.S.C. 742a, et seq.), 
the Fish and Wildlife Coordination Act (Pub. L. 73-121, 16 U.S.C. 661 
et seq.), the Administrative Procedure Act (5 U.S.C. 551 et seq.), the 
Otay Mountain Wilderness Act of 1999 (Pub. L. 106-145), Sections 
102(29) and 103 of Title I of the California Desert Protection Act 
(Pub. L. 103-433), 50 Stat. 1827, the National Park Service Organic Act 
(Pub. L. 64-235, 16 U.S.C. 1, 2-4), the National Park Service General 
Authorities Act (Pub. L. 91-383, 16 U.S.C. 1a-1 et seq.), Sections 
401(7), 403, and 404 of the National Parks and Recreation Act of 1978 
(Pub. L. 95-625), Sections 301(a)-(f) of the Arizona Desert Wilderness 
Act (Pub. L. 101-628), the Rivers and Harbors Act of 1899 (33 U.S.C. 
403), the Eagle Protection Act (16 U.S.C. 668 et seq.), the Native 
American Graves Protection and Repatriation Act (25 U.S.C. 3001 et 
seq.), the American Indian Religious Freedom Act (42 U.S.C. 1996), the 
Religious Freedom Restoration Act (42 U.S.C. 2000bb), the National 
Forest Management Act of 1976 (16 U.S.C. 1600 et seq.), and the 
Multiple Use and Sustained Yield Act of 1960 (16 U.S.C. 528-531).
    This waiver does not supersede, supplement, or in any way modify 
the previous waivers published in the Federal Register on September 22, 
2005 (70 FR 55622), January 19, 2007 (72 FR

[[Page 18294]]

2535), and October 26, 2007 (72 FR 60870).
    I reserve the authority to make further waivers from time to time 
as I may determine to be necessary to accomplish the provisions of 
section 102 of the IIRIRA, as amended.

    Dated: April 1, 2008.
Michael Chertoff,
Secretary.
[FR Doc. 08-1095 Filed 4-1-08; 2:03 pm]
BILLING CODE 4410-10-P