[Federal Register Volume 84, Number 126 (Monday, July 1, 2019)]
[Notices]
[Pages 31328-31329]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-14003]


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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 July 1, 2019.

SUPPLEMENTARY INFORMATION: Important missions 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, 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, Sec.  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, Sec.  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 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, 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, Sec.  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 2018 alone, the 
Border Patrol apprehended over 162,000 illegal aliens attempting to 
enter the United States between border crossings in the Rio Grande 
Valley Sector. In that same year, the Border Patrol had over 1,400 
separate drug-related events between border crossings in the Rio Grande 
Valley Sector, through which it seized over 204,000 pounds of 
marijuana, over 1,850 pounds of cocaine, over 16 pounds of heroin, and 
over 750 pounds of methamphetamine.
    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. Such areas are not located within any of the areas identified in 
sections 231 and 232(c) of title II of division A of the Fiscal Year 
2019 DHS Appropriations Act. See Public Law 116-6, Div. A, Title II, 
Sec. Sec.  231-232.

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 southernmost boundary of the Arroyo 
Ramirez Tract of the Lower Rio Grande Valley National Wildlife Refuge 
and extending north to County Road 650; and
     Starting approximately one-tenth (0.10) of a mile north of 
the northernmost boundary of the Las Ruinas Tract of the Lower Rio 
Grande Valley National Wildlife Refuge and extending to approximately 
one and one-half (1.50) miles south and east of the southernmost 
boundary of the Las Ruinas Tract of the Lower Rio Grande Valley 
National Wildlife Refuge.
    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

[[Page 31329]]

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 roads and 
physical barriers (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 Public Law 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 Public Law 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 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, 90 Stat. 2743 (Oct. 21, 1976) (43 U.S.C. 1701 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, 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 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).
    I reserve the authority to execute further waivers from time to 
time as I may determine to be necessary under section 102 of IIRIRA.

Kevin K. McAleenan,
Acting Secretary of Homeland Security.
[FR Doc. 2019-14003 Filed 6-28-19; 8:45 am]
 BILLING CODE 9111-14-P