[Federal Register Volume 84, Number 79 (Wednesday, April 24, 2019)]
[Notices]
[Pages 17185-17187]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08290]


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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.

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[[Page 17186]]

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 in 
Luna County, New Mexico and Do[ntilde]a Ana County, New Mexico.

DATES: This determination takes effect on April 24, 2019.

SUPPLEMENTARY INFORMATION: Important mission requirements of the 
Department of Homeland Security (``DHS'') include border security and 
the detection and prevention of illegal entry into the United States. 
Border security is critical to the nation's national security. 
Recognizing the critical importance of border security, Congress has 
mandated DHS to achieve and maintain operational control of the 
international land border. Secure Fence Act of 2006, Public Law 109-
367, section 2, 120 Stat. 2638 (Oct. 26, 2006) (8 U.S.C. 1701 note). 
Congress defined ``operational control'' as the prevention of all 
unlawful entries into the United States, including entries by 
terrorists, other unlawful aliens, instruments of terrorism, narcotics, 
and other contraband. Id. Consistent with that mandate from Congress, 
the President's Executive Order on Border Security and Immigration 
Enforcement Improvements directed executive departments and agencies to 
deploy all lawful means to secure the southern border. Executive Order 
13767, section 1. In order to achieve that end, the President directed, 
among other things, that I take immediate steps to prevent all unlawful 
entries into the United States, including the immediate construction of 
physical infrastructure to prevent illegal entry. Executive Order 
13767, section 4(a).
    Congress has provided to the Secretary of Homeland Security a 
number of authorities necessary to carry out DHS's border security 
mission. One of those authorities is found at section 102 of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as 
amended (``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, section 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 mandated the installation 
of additional fencing, barriers, roads, lighting, cameras, and sensors 
on the southwest border. Finally, in section 102(c) of IIRIRA, Congress 
granted to the Secretary of Homeland Security 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.

Determination and Waiver:

Section 1

    The United States Border Patrol's El Paso Sector is an area of high 
illegal entry. In fiscal year 2018, the United States Border Patrol 
(``Border Patrol'') apprehended over 31,000 illegal aliens attempting 
to enter the United States between border crossings in the El Paso 
Sector. Also in fiscal year 2018, the Border Patrol had over 700 
separate drug-related events between border crossings in the El Paso 
Sector, through which it seized over 15,000 pounds of marijuana, over 
342 pounds of cocaine, over 40 pounds of heroin, and over 200 pounds of 
methamphetamine. Additionally, Luna County, New Mexico, and Do[ntilde]a 
Ana County, New Mexico, which are located in the El Paso Sector, have 
been identified as High Intensity Drug Trafficking Areas by the Office 
of National Drug Control Policy.
    Due to the high levels of illegal entry of people and drugs within 
the El Paso Sector, I must use my authority under Section 102 of IIRIRA 
to install additional physical barriers and roads in the El Paso 
Sector. Therefore, DHS will take immediate action to replace existing 
vehicle barriers in the El Paso Sector. The project will occur within 
two segments of the border in the El Paso Sector. One segment is west 
of the Columbus, New Mexico Land Port of Entry, and the other segment 
is located to the east of the Columbus New Mexico Land Port of Entry. 
The segments within which such construction will occur are referred to 
herein as the ``project area'' and are more specifically described in 
Section 2 below.
    The existing vehicle barriers within the project area no longer 
meet the United States Border Patrol's operational needs. The 
construction of vehicle barriers in the project area initially 
curtailed illegal vehicular crossings. However, transnational criminal 
organizations have adapted their tactics by smuggling illicit cargo by 
foot, cutting the barrier, or driving over it, which has prompted the 
need for the construction of a more effective barrier. The existing 
vehicle barriers will be replaced with an eighteen to thirty foot 
barrier that employs a more operationally effective design. In 
addition, roads will be constructed or improved and lighting will be 
installed.
    To support DHS's action under Section 102 of IIRIRA, DHS requested 
that the Department of Defense, pursuant to 10 U.S.C. 284(b)(7), assist 
by constructing fence, roads, and lighting within the El Paso Sector in 
order to block drug smuggling corridors across the international 
boundary between the United States and Mexico. The Acting Secretary of 
Defense has concluded that the support requested satisfies the 
statutory requirements of 10 U.S.C. 284(b)(7) and that the Department 
of Defense will provide such support in the project area described in 
Section 2 below.

Section 2

    I determine that the following areas in the vicinity of the United 
States border, located in the State of New Mexico within the United 
States Border Patrol's El Paso Sector, are areas of high illegal entry 
(the ``project area''):
     Starting at Border Monument 31 and extending east to 
Border Monument 23.
     Starting at approximately one (1) mile west of Border 
Monument 20 and extending east to Border Monument 9.
    There is presently an acute and immediate need to construct 
physical barriers and roads in the vicinity of the border of the United 
States in order to prevent unlawful entries into the United States in 
the project area pursuant to sections 102(a) and 102(b) of IIRIRA. In 
order to ensure the expeditious construction of the barriers and roads 
in the project area, I have determined that it is necessary that I 
exercise the authority that is vested in me by section 102(c) of 
IIRIRA.
    Accordingly, pursuant to section 102(c) of IIRIRA, I hereby waive 
in their entirety, with respect to the construction of physical 
barriers and roads (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 physical barriers, roads, supporting elements, drainage, 
erosion

[[Page 17187]]

controls, safety features, lighting, cameras, and sensors) in the 
project area, all of the following statutes, including all federal, 
state, or other laws, regulations, and legal requirements of, deriving 
from, or related to the subject of, the following statutes, 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), as 
amended, repealed, or replaced by Public Law 113-287 (Dec. 19, 2014) 
(formerly codified at 16 U.S.C. 470 et seq., now codified at 54 U.S.C. 
100101 note and 54 U.S.C. 300101 et seq.)); the Migratory Bird Treaty 
Act (16 U.S.C. 703 et seq.); the Migratory Bird Conservation Act (16 
U.S.C. 715 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 Paleontological Resources Preservation Act (16 U.S.C. 
470aaa et seq.); the National Trails System Act (16 U.S.C. 1241 et 
seq.); the Federal Cave Resources Protection Act of 1988 (16 U.S.C. 
4301 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, as 
amended, repealed, or replaced by Pub. L. 113-287 (Dec. 19, 2014) 
(formerly codified at 16 U.S.C. 469 et seq., now codified at 54 U.S.C. 
312502 et seq.)); the Antiquities Act (formerly codified at 16 U.S.C. 
431 et seq., now codified 54 U.S.C. 320301 et seq.); the Historic 
Sites, Buildings, and Antiquities Act (formerly codified at 16 U.S.C. 
461 et seq., now codified at 54 U.S.C. 3201-320303 and 320101-320106); 
the Farmland Protection Policy Act (7 U.S.C. 4201 et seq.); the Federal 
Land Policy and Management Act (Pub L. 94-579 (43 U.S.C. 1701 et 
seq.)); National 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 Wild Horse and Burro Act (16 
U.S.C. 1331 et seq.); the Administrative Procedure Act (5 U.S.C. 551 et 
seq.); 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.); and the American Indian Religious Freedom Act (42 U.S.C. 1996).
    This waiver does not revoke or supersede the previous waiver 
published in the Federal Register on April 8, 2008 (73 FR 19078), which 
shall remain in full force and effect in accordance with its terms. I 
reserve the authority to execute further waivers from time to time as I 
may determine to be necessary under section 102 of IIRIRA.

    Dated: April 18, 2019.
Kevin K. McAleenan,
Acting Secretary of Homeland Security.
[FR Doc. 2019-08290 Filed 4-23-19; 8:45 am]
 BILLING CODE 9111-14-P