[Federal Register Volume 85, Number 51 (Monday, March 16, 2020)]
[Notices]
[Pages 14963-14965]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05348]


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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 Acting 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, Do[ntilde]a Ana 
County, New Mexico, and El Paso County, Texas.

DATES: This determination takes effect on March 16, 2020.

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

[[Page 14964]]

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 2019, the United States Border Patrol 
(``Border Patrol'') apprehended over 182,000 illegal aliens attempting 
to enter the United States between border crossings in the El Paso 
Sector. Also in fiscal year 2019, there were over 400 drug-related 
events between border crossings in the El Paso Sector, through which 
the Border Patrol seized over 11,000 pounds of marijuana, over 137 
pounds of cocaine, over 35 pounds of heroin, over 340 pounds of 
methamphetamine, and over two pounds of fentanyl. Additionally, Luna 
County, New Mexico, Do[ntilde]a Ana County, New Mexico, and El Paso 
County, Texas, 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 construct new 
primary pedestrian fencing and replace existing primary pedestrian and 
secondary fencing in the El Paso Sector. The segments within which such 
construction will occur are referred to herein as the ``project areas'' 
and are more specifically described in Section 2 below.
    The existing pedestrian and secondary fencing within the project 
areas no longer meets Border Patrol's operational needs. The existing 
pedestrian and secondary fencing is not of sufficient height. Further, 
the existing pedestrian fencing was constructed with thinner materials 
that are easily breached. It therefore does not provide the level of 
impedance necessary to meet Border Patrol's operational needs. Both 
will be replaced with fencing that has a more operationally effective 
design. In addition, the construction of new fencing in the El Paso 
Sector is intended to slow or stop illegal activity. Increasing the 
level of impedance will improve Border Patrol's ability to respond to 
narcotics smuggling and illegal entries. Within the project areas roads 
will also be constructed or improved and lighting will be installed.
    To support DHS's action under section 102 of IIRIRA, I requested 
that the Secretary 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 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 Texas and the State of New 
Mexico within the United States Border Patrol's El Paso Sector, are 
areas of high illegal entry (the ``project areas''):
     Starting at approximately Border Monument 33 and extending 
east for approximately three (3) miles;
     Starting at approximately Border Monument 24 and extending 
east to approximately Border Monument 20;
     Starting approximately two and one-half (2.5) miles west 
of Border Monument 4 and extending east to approximately one-half (0.5) 
of a mile east of Border Monument 3;
     Starting approximately one and one-quarter (1.25) miles 
east of Border Monument 3 and extending east to approximately Border 
Monument 2;
     Starting at approximately the New Mexico--Texas state line 
and generally following the International Boundary and Water Commission 
levee south and east for approximately two (2) miles;
     Starting approximately one-half (0.5) of a mile north and 
west of the Paso Del Norte Port of Entry and generally following the 
International Boundary and Water Commission levee east to approximately 
one-half (0.5) of a mile south and east of the Bridge of the Americas 
Port of Entry; and
     Starting approximately one and one-half (1.5) miles south 
and east of the Bridge of the Americas Port of Entry and generally 
following the International Boundary and Water Commission levee south 
and east to approximately nine (9) miles south and east of the Tornillo 
Port of Entry.
    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 Pub. L. 113-287 (Dec. 
19, 2014) (formerly codified at 16 U.S.C. 470 et seq., now codified at 
54 U.S.C.

[[Page 14965]]

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 at 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 (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 Wild and Scenic Rivers Act (Pub. L. 90-542 (16 U.S.C. 1281 
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.); and 
the American Indian Religious Freedom Act (42 U.S.C. 1996).
    This waiver does not revoke or supersede any other waiver 
determination made pursuant to section 102(c) of IIRIRA. Such waivers 
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.

    Dated: March 11, 2020.
Chad F. Wolf,
Acting Secretary of Homeland Security.
[FR Doc. 2020-05348 Filed 3-13-20; 8:45 am]
 BILLING CODE 9111-14-P