[Federal Register Volume 85, Number 73 (Wednesday, April 15, 2020)]
[Notices]
[Pages 21015-21017]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-07981]


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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 Starr County, Texas.

DATES: This determination takes effect on April 15, 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,

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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 (Border Patrol) Rio Grande Valley 
Sector is an area of high illegal entry. In fiscal year 2019, the 
Border Patrol apprehended over 339,000 illegal aliens attempting to 
enter the United States between border crossings in the Rio Grande 
Valley Sector. In that same time period, the Border Patrol had over 
1,000 drug-related events between border crossings in the Rio Grande 
Valley Sector, through which it seized over 122,000 pounds of 
marijuana, over 2,500 pounds of cocaine, over 90 pounds of heroin, over 
1,700 pounds of methamphetamine, and over 11 pounds of fentanyl.
    Owing to the high levels of illegal entry within the Rio Grande 
Valley Sector, I must use my authority under section 102 of IIRIRA to 
install additional physical barriers and roads in the Rio Grande Valley 
Sector. Therefore, DHS will take immediate action to construct barriers 
and roads. The areas in the vicinity of the border within which such 
construction will occur are more specifically described in Section 2 
below. The areas in Section 2 are located within the cities and the 
census designated place specifically enumerated in section 232(c) of 
title II of division A of the Consolidated Appropriations Act, 2019. 
See Public Law 116-6, Div. A, Title II, section 232. As required by 
section 232(a) of the Consolidated Appropriations Act, 2019, DHS 
consulted with local elected officials from the cities and census 
designated place identified in section 232(c) of the Consolidated 
Appropriations Act, 2019 regarding the alignment and design of physical 
barriers in such areas.

Section 2

    I determine that the following areas in the vicinity of the United 
States border, located in the State of Texas within the Border Patrol's 
Rio Grande Valley Sector, are areas of high illegal entry (the 
``project areas''):
     Starting at the western boundary of the census designated 
place of Salineno, Texas and generally following the Rio Grande River 
south and east to the southeast boundary of the census designated place 
of Salineno, Texas.
     Starting at the western boundary of the Los Negros Creek 
Tract of the Lower Rio Grande Valley National Wildlife Refuge and 
generally following the Rio Grande River east to the eastern boundary 
of the city limits of Escobares, Texas.
     Starting at the western boundary of the city limits of Rio 
Grande City, Texas, and extending east to approximately two hundred and 
fifteen (215) feet southeast of the location where the international 
bridge at the Rio Grande City port of entry begins to cross the Rio 
Grande River.
     Starting approximately one-quarter (0.25) of a mile 
northwest of the intersection of Mission Street and West Private Lazaro 
Solis Street, then extending south for approximately one and one-half 
(1.5) miles, then extending north and east to approximately one and 
one-half (1.5) miles southeast of the intersection of East Private 
Lazaro Solis Street and El Sol Drive.
    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, 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

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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); the Farmland Protection Policy Act (7 U.S.C. 4201 et seq.); 
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 (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 Rivers and Harbors Act of 1899 (33 U.S.C. 
403); the Wild and Scenic Rivers Act (Pub. L. 90-542 (16 U.S.C. 1281 et 
seq.)); 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.

Signature

    The Acting Secretary of Homeland Security, Chad F. Wolf, having 
reviewed and approved this document, is delegating the authority to 
electronically sign this document to Chad R. Mizelle, who is the Acting 
General Counsel for DHS, for purposes of publication in the Federal 
Register.

Chad R. Mizelle,
Acting General Counsel.
[FR Doc. 2020-07981 Filed 4-14-20; 8:45 am]
 BILLING CODE 9111-14-P