[Federal Register Volume 85, Number 51 (Monday, March 16, 2020)]
[Notices]
[Pages 14958-14960]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-05366]


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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

[[Page 14959]]

barriers and roads in the vicinity of the international land border in 
San Diego County, California.

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 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 San Diego Sector is an area of 
high illegal entry. In fiscal year 2019, the United States Border 
Patrol (``Border Patrol'') apprehended over 58,000 illegal aliens 
attempting to enter the United States between border crossings in the 
San Diego Sector. Also in fiscal year 2019, there were over 300 drug-
related events between border crossings in the San Diego Sector, 
through which Border Patrol seized over 3,300 pounds of marijuana, over 
1,280 pounds of cocaine, over 293 pounds of heroin, over 3,985 pounds 
of methamphetamine, and over 107 pounds of fentanyl. Additionally, San 
Diego County, California, which is located in the San Diego Sector, has 
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 San Diego Sector, I must use my authority under section 102 of 
IIRIRA to install additional physical barriers and roads in the San 
Diego Sector. Therefore, DHS will take immediate action to replace 
existing and construct new pedestrian fencing in a number of non-
contiguous segments of the border in the San Diego Sector. The segments 
where such construction will occur are referred to herein as the 
``project area,'' which is more specifically described in Section 2 
below.
    The existing pedestrian fencing within the projects area, which 
includes landing mat fencing that is easily breached and has been 
damaged to the extent it is ineffective, is susceptible to 
exploitation. Replacement of the existing pedestrian fencing will 
increase the impedance capability in the San Diego Sector. 
Additionally, the construction of new fencing will close gaps and serve 
to slow or stop illegal activity, including narcotics smuggling and 
illegal entry. Within the project area 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 San Diego 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 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 United 
States Border Patrol's San Diego Sector, is an area of high illegal 
entry (the ``project area''): Starting approximately one and one-half 
(1.5) miles east of Border Monument 243 and extending east to the San 
Diego-Imperial County 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 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

[[Page 14960]]

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. 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 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, 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 Wilderness Act (Pub. L. 88-577 (16 U.S.C. 1131 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 Eagle Protection Act (16 U.S.C. 668 et seq.); sections 
102(29) and 103 of Title I of the California Desert Protection Act 
(Pub. L. 103-433); 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. 2020-05366 Filed 3-13-20; 8:45 am]
 BILLING CODE 9111-14-P