[Federal Register Volume 84, Number 94 (Wednesday, May 15, 2019)]
[Notices]
[Pages 21798-21800]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10079]


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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 in 
Cochise County and Pima County, Arizona.

DATES: This determination takes effect on May 15, 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, 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

[[Page 21799]]

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) Tucson Sector is 
an area of high illegal entry. In fiscal year 2018, the Border Patrol 
apprehended over 52,000 illegal aliens attempting to enter the United 
States between border crossings in the Tucson Sector. Also in fiscal 
year 2018, the Border Patrol had over 1,900 separate drug-related 
events between border crossings in the Tucson Sector, through which it 
seized over 134,000 pounds of marijuana, 62 pounds of cocaine, over 91 
pounds of heroin, and over 902 pounds of methamphetamine. Additionally, 
Cochise and Pima Counties, which are within the Tucson Sector, have 
been identified as High Intensity Drug Trafficking Areas by the Office 
of National Drug Control Policy.
    During the high levels of illegal entry of people and drugs within 
the Tucson Sector, I must use my authority under Section 102 of IIRIRA 
to install additional physical barriers and roads in the Tucson Sector. 
Therefore, DHS will take immediate action to replace existing barriers 
in the Tucson Sector. Construction will occur along four separate 
segments of the border, which are referred to herein as the ``project 
areas'' and more specifically described in Section 2 below.
    The existing barriers within the project areas include both vehicle 
fencing and outmoded pedestrian fencing that no longer satisfy Border 
Patrol's operational needs. Transnational criminal organizations known 
for smuggling drugs and aliens into United States from Mexico are known 
to operate in the area. These transnational criminal organizations have 
been able to use the lack of adequate infrastructure and the 
surrounding terrain, which provides high ground for scouts seeking to 
protect and warn smugglers moving through the area, to their advantage. 
Therefore, Border Patrol requires a more effective barrier. The 
existing vehicle barriers and outmoded pedestrian fencing will be 
replaced with an 18 to 30 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 Tucson 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 areas 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 Arizona within the United States 
Border Patrol's Tucson Sector, are areas of high illegal entry (the 
``project areas''):
     Starting approximately one-half (.5) mile west of Border 
Monument 178 and extending east to Border Monument 162;
     Starting at Border Monument 100 and extending east for 
approximately one (1) mile;
     Starting at Border Monument 98 and extending east to 
Border Monument 97; and
     Starting approximately one-half (.5) mile west of Border 
Monument 83 and extending east to Border Monument 74.
    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 physical 
barriers and roads (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 Public Law 113-287, 128 
Stat. 3094 (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, 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 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 Public Law 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); Wild and Scenic Rivers Act (Pub. L. 90-542, 82 
Stat. 906 (Oct. 2, 1968) (16 U.S.C. 1271 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.)); the Wilderness Act (Pub. L. 88-577, 78 Stat. 890 
(Sept. 3, 1964) (16 U.S.C. 1131 et seq.)); 43 U.S.C. 387; the National 
Wildlife Refuge System Administration Act (Pub. L. 89-669, 80 Stat. 926 
(Oct. 15, 1966) (16 U.S.C. 668dd-668ee)); 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 
National Trails System Act (16 U.S.C. 1241 et seq.); the Administrative 
Procedure Act (5 U.S.C.

[[Page 21800]]

551 et seq.); the Wild Horse and Burro Act (16 U.S.C. 1331 et seq.); 
the Rivers and Harbors Act of 1899 (33 U.S.C. 403); the National Park 
Service Organic Act and the National Park Service General Authorities 
Act (Pub. L. 64-235, 39 Stat. 535 (Aug. 25, 1916) and Public Law 91-
383, 84 Stat. 825 (Aug. 18, 1970) as amended, repealed, or replaced by 
Public Law 113-287, 128 Stat. 3094 (Dec. 19, 2014) (formerly codified 
at 16 U.S.C. 1, 2-4 and 16 U.S.C. 1a-1 et seq., now codified at 54 
U.S.C. 100101-100102, 54 U.S.C. 100301-100303, 54 U.S.C. 100501-100507, 
54 U.S.C. 100701-100707, 54 U.S.C. 100721-100725, 54 U.S.C. 100751-
100755, 54 U.S.C. 100901-100906, 54 U.S.C. 102101-102102)); Sections 
401(7), 403, and 404 of the National Parks and Recreation Act of 1978 
(Pub. L. 95-625, 92 Stat. 3467 (Nov. 10, 1978)); 50 Stat. 1827 (April 
13, 1937); Sections 301(a)-(f) of the Arizona Desert Wilderness Act 
(Pub. L. 101-628, 104 Stat. 4469 (Nov. 28, 1990)); Arizona-Idaho 
Conservation Act of 1988 (Pub. L. 100-696, 102 Stat. 4571 (Nov. 18, 
1988) (16 U.S.C. 460xx)); 16 U.S.C. 450y (Pub. L. 77-216, 55 Stat. 630 
(Aug. 18, 1941), as amended by Public Law 82-478, 66 Stat. 510 (July 9, 
1952)); 67 Stat. c18 (Nov. 5, 1952); National Forest Management Act of 
1976 (16 U.S.C. 1600 et seq.); Multiple-Use and Sustained-Yield Act of 
1960 (16 U.S.C. 528-531); 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 waivers 
published in the Federal Register on October 26, 2007 (72 FR 60870), 
and April 8, 2008 (73 FR 19078), 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. 2019-10079 Filed 5-14-19; 8:45 am]
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