[Federal Register Volume 84, Number 94 (Wednesday, May 15, 2019)]
[Notices]
[Pages 21800-21801]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-10080]


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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 
Imperial County, California.

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 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) El Centro Sector 
is an area of high illegal entry. 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. Additionally, Imperial County, California, which is 
located in the El Centro Sector, has 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 El Centro Sector, I must use my authority under section 102 of 
IIRIRA to install additional physical barriers and roads in the El 
Centro Sector. Therefore, DHS will take immediate action to replace 
existing vehicle barriers in the El Centro Sector. The segment within 
which such construction will occur is referred to herein as the 
``project area'' and is more

[[Page 21801]]

specifically described in Section 2 below.
    The existing vehicle barriers within the project area no longer 
satisfy the Border Patrol's operational needs. Transnational criminal 
organizations known for smuggling drugs into United States from Mexico 
are known to operate in the area. Further, due to the close proximity 
of urban areas on both sides of the border, the El Centro Sector 
experiences some of the quickest vanishing times--that is, the time it 
takes to illegally cross into the United States and assimilate into 
local, legitimate traffic--on the border. The vanishing times 
facilitate the illegal activities of transnational criminal 
organizations, whether they are smuggling people or narcotics. 
Therefore, the Border Patrol requires a more effective barrier. The 
existing vehicle barriers 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 El Centro 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 area in the vicinity of the United 
States border, located in the State of California within the Border 
Patrol's El Centro Sector, is an area of high illegal entry (the 
``project area''): Starting at Border Monument 229 and extending east 
to approximately one and one-half miles (1.5) west of Border Monument 
223.
    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 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, 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 Law113-287, 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 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 National Trails System Act (16 U.S.C. 1241 et seq.); the 
Administrative Procedure Act (5 U.S.C. 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 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); 
43 U.S.C. 387; the Wilderness Act (Pub. L. 88-577, 78 Stat. 890 (Sept. 
3, 1964) (16 U.S.C. 1131 et seq.)); and sections 102(29) and 103 of 
Title I of the California Desert Protection Act (Pub. L. 103-433, 108 
Stat. 4471 (Oct. 31, 1994)).
    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.

Kevin K. McAleenan,
Acting Secretary of Homeland Security.
[FR Doc. 2019-10080 Filed 5-14-19; 8:45 am]
 BILLING CODE 9111-14-P