[Federal Register Volume 84, Number 94 (Wednesday, May 15, 2019)]
[Notices]
[Pages 21801-21803]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10078]
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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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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
near Tecate and Calexico, California.
DATES: This determination takes effect on May 15, 2019.
SUPPLEMENTARY INFORMATION: Important mission requirements of the
Department
[[Page 21802]]
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, 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, Sec. 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, Sec. 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 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, 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, Sec. 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 (Border Patrol) San Diego and El
Centro Sectors are areas of high illegal entry. In fiscal year 2018
alone, the Border Patrol apprehended over 38,000 illegal aliens
attempting to enter the United States between border crossings in the
San Diego Sector. In that same year, the Border Patrol had over 500
separate drug-related events between border crossings in the San Diego
Sector, through which it seized approximately 8,700 pounds of
marijuana, approximately 1,800 pounds of cocaine, over 175 pounds of
heroin, and over 5,100 pounds of methamphetamine. In fiscal year 2018,
the Border Patrol apprehended over 29,000 illegal aliens attempting to
enter the United States between border crossings in the El Centro
Sector. Also in fiscal year 2018, the Border Patrol had approximately
200 separate drug-related events between border crossings in the El
Centro Sector, through which it seized over 620 pounds of marijuana,
over 165 pounds of cocaine, over 56 pounds of heroin, and over 1,600
pounds of methamphetamine.
Due to the high levels of illegal entry within the San Diego and El
Centro Sectors, I must use my authority under section 102 of IIRIRA to
install additional physical barriers and roads in the San Diego and El
Centro Sectors. Therefore, DHS will take immediate action to replace
existing barriers in the San Diego and El Centro Sectors. The segments
of the border within which such construction will occur are referred to
herein as the ``project areas'' and are more specifically described in
Section 2 below. Congress provided funding for these projects in the
Fiscal Year 2018 DHS Appropriations Act, Public Law 115-141, Division
F, Title II, Sec. 230.
The replacement of primary fencing within the project areas will
further the Border Patrol's ability to deter and prevent illegal
crossings. The existing barriers were constructed between the early-to-
mid 1990s and mid-to-late 2000s. The existing barriers will be replaced
with 18 to 30 foot barriers that employ a more operationally effective
design that is intended to meet the Border Patrol's operational
requirements. In addition, DHS will, where necessary, make improvements
to existing roads within the project areas.
Section 2
I determine that the following areas in the vicinity of the United
States border, located in the State of California within the Border
Patrol's San Diego and El Centro Sectors, are areas of high illegal
entry (the ``project areas''):
Within the San Diego Sector, starting approximately one
mile west of Border Monument 245 and extending east to approximately
one mile east of Border Monument 243;
Within the El Centro Sector, starting approximately one
and one-half (1.5) miles west of Border Monument 223 and extending east
approximately eight miles; and
Within the El Centro Sector, starting at Border Monument
221 and extending east to Border Monument 219.
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 areas 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 areas, 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 roads and
physical barriers (including, but not limited to, accessing the project
areas, 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
controls, safety features, lighting, cameras, and sensors) in the
project areas, 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 Pub. L. 113-287 (Dec. 19, 2014)
(formerly
[[Page 21803]]
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, 93 Stat. 721 (Oct. 31, 1979)
(16 U.S.C. 470aa et seq.)); the Paleontological Resources Preservation
Act (16 U.S.C. 470aaa et seq.); the Federal Cave Resources Protection
Act of 1988 (16 U.S.C. 4301 et seq.); the National Trails System Act
(16 U.S.C. 1241 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, 74 Stat.
220 (June 27, 1960) as amended, repealed, or replaced by Pub. L. 113-
287, 128 Stat. 3094 (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 & 320101-320106); 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 Federal Land Policy and Management Act (Pub.
L. 94-579, 90 Stat. 2743 (Oct. 21, 1976) (43 U.S.C. 1701 et seq.));
National Fish and Wildlife Act of 1956 (Pub. L. 84-1024, 70 Stat. 1119
(Aug. 8, 1956) (16 U.S.C. 742a, et seq.)); the Fish and Wildlife
Coordination Act (Pub. L. 73-121, 48 Stat. 401 (March 10, 1934) (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
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); and 43 U.S.C. 387.
This waiver does not revoke or supersede the previous waivers
published in the Federal Register on April 8, 2008 (73 FR 19078), and
on September 12, 2017 (82 FR 42829), which shall remain in full force
and effect in accordance with their 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.
Kevin K. McAleenan,
Acting Secretary of Homeland Security.
[FR Doc. 2019-10078 Filed 5-14-19; 8:45 am]
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