[Federal Register Volume 85, Number 51 (Monday, March 16, 2020)]
[Notices]
[Pages 14961-14963]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05349]


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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 Pima County, Arizona, Santa Cruz County, 
Arizona, and Cochise County, Arizona.

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

[[Page 14962]]

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 Tucson Sector is an area of high 
illegal entry. In fiscal year 2019, the United States Border Patrol 
(``Border Patrol'') apprehended over 63,000 illegal aliens attempting 
to enter the United States between border crossings in the Tucson 
Sector. Also in fiscal year 2019, there were over 1,200 drug-related 
events between border crossings in the Tucson Sector, through which 
Border Patrol seized over 59,000 pounds of marijuana, over 150 pounds 
of cocaine, over 155 pounds of heroin, over 2,700 pounds of 
methamphetamine, and over 12 pounds of fentanyl. Additionally, Pima 
County, Arizona, Santa Cruz County, Arizona, and Cochise County, 
Arizona, which are located in the Tucson Sector, have been identified 
as a High Intensity Drug Trafficking Area by the Office of National 
Drug Control Policy.
    Due to 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 construct new primary and 
secondary fencing and replace existing pedestrian and secondary fencing 
in the Tucson 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 lack of adequate barriers, either due to a complete absence of 
barrier or ineffective primary or secondary fencing that no longer meet 
Border Patrol's operational needs, continues to be particularly 
problematic as it pertains to the trafficking of illegal narcotics in 
the Tucson Sector. The replacement of outmoded primary and secondary 
fencing and the construction of new primary pedestrian fencing will add 
much needed infrastructure in the Tucson Sector. The added impedance 
capability will slow or stop illegal activity, afford Border Patrol 
more time to respond, and increase the likelihood of interdiction. 
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 Tucson 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 Arizona within the United States 
Border Patrol's Tucson Sector, are areas of high illegal entry (the 
``project areas''):
     Starting two (2) miles north and west of Border Monument 
140 and extending south and east to approximately one and one-half 
(1.5) miles east of Border Monument 124;
     Starting approximately one (1) mile west of Border 
Monument 116 and extending east to approximately one mile (1) east of 
Border Monument 100;
     Starting at approximately Border Monument 98 and extending 
east for approximately 10 miles;
     Starting approximately one-half (0.5) of a mile west of 
the Naco Port of Entry and extending east to approximately Border 
Monument 92;
     Starting approximately one-half (0.5) of a mile west of 
Border Monument 91 and extending east for approximately 16 miles;
     Starting approximately one-half (0.5) of a mile east of 
Border Monument 83 and extending west for two (2) miles; and
     Starting approximately one-half (0.5) of a mile west of 
Border Monument 74 and extending east to the Arizona-New Mexico state 
line.
    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-

[[Page 14963]]

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, 
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 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 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); 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.)); sections 
101(a)(14), 101(a)(17), and 101(b) of Title I of the Arizona Wilderness 
Act of 1984 (Pub. L. 98-406, 98 Stat. 1486 (August 28, 1984)); the 
National Wildlife Refuge System Administration Act (Pub. L. 89-669 (16 
U.S.C. 668dd-668ee)); the National Wildlife Refuge System Improvement 
Act of 1997 (Pub. L. 105-57); 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 National Park Service Organic Act and the National Park 
Service General Authorities Act (Pub. L. 64-235, 39 Stat. 535 (Aug. 25, 
1916) and Pub. L. 91-383, 84 Stat. 825 (Aug. 18, 1970) as amended, 
repealed, or replaced by Pub. L. 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)); 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 Pub. L. 
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); 16 
U.S.C. 472; 16 U.S.C. 551; 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. 2020-05349 Filed 3-13-20; 8:45 am]
 BILLING CODE 9111-14-P