[Federal Register Volume 85, Number 138 (Friday, July 17, 2020)]
[Notices]
[Pages 43593-43595]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-15548]


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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 roads in the vicinity of the international 
land border in Starr County, Texas.

DATES: This determination takes effect on July 17, 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

[[Page 43594]]

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 roads in the Rio Grande Valley Sector. These roads 
will assist in deterring illegal crossings by providing the Border 
Patrol with increased access to areas along and near the Rio Grande 
River. Therefore, DHS will take immediate action to construct roads. 
The areas in the vicinity of the border within which such construction 
will occur are more specifically 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 within the Border Patrol's 
Rio Grande Valley Sector, are areas of high illegal entry (the 
``project areas''):

     Starting at Falcon Dam and generally following the 
course of the Rio Grande River south and east to the intersection of 
Swordfish Drive and Chapeno Road;
     Starting at the intersection of Swordfish Drive and 
Chapeno Road and generally following the course of the Rio Grande 
River south and east to the intersection of LaVeja Street and 
Chapeno Road;
     Starting approximately one-tenth (0.1) of a mile 
southeast of the intersection of Este Road and Border Avenue and 
extending southwest for approximately three-tenths (0.3) of a mile;
     Starting approximately three-hundredths (.03) of a mile 
north of the southern terminus of the Los Picos Road and generally 
following the course of the Rio Grande River south and east for 
approximately one and six-tenths (1.6) miles; and
     Starting approximately six-tenths (0.6) of a mile 
northwest of the intersection of Plaza Street and Alamo Road and 
generally following the course of the Rio Grande River north and 
west for approximately five and four-tenths (5.4) miles.

    There is presently an acute and immediate need to construct 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 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 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 the roads, 
drainage, erosion controls, and safety features) 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 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.); and the Native American Graves 
Protection and Repatriation Act (25 U.S.C. 3001 et seq.).
    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 Senior 
Official Performing the Duties of the General Counsel for

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DHS, for purposes of publication in the Federal Register.

Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel of 
Homeland Security.
[FR Doc. 2020-15548 Filed 7-16-20; 8:45 am]
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