Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as Amended, 18294 [08-1096]

Agencies

• Office of the Secretary
• DEPARTMENT OF HOMELAND SECURITY

[Federal Register Volume 73, Number 65 (Thursday, April 3, 2008)]
[Notices]
[Page 18294]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 08-1096]


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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 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 of 
the United States.

DATES: This Notice is effective on April 3, 2008.
    Determination and Waiver: The Department of Homeland Security has a 
mandate to achieve and maintain operational control of the borders of 
the United States. Public Law 109-367, Section 2, 120 Stat. 2638, 8 
U.S.C. 1701 note. Congress has provided the Secretary of Homeland 
Security with a number of authorities necessary to accomplish this 
mandate. One of these authorities is found at section 102(c) of the 
Illegal Immigration Reform and Immigrant Responsibility Act of 1996 
(``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 the 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 the IIRIRA, Congress has called for the 
installation of fencing, barriers, roads, lighting, cameras, and 
sensors on not less than 700 miles of the southwest border, including 
priority miles of fencing that must be completed by December of 2008. 
Finally, in section 102(c) of the IIRIRA, Congress granted to me 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 the IIRIRA.
    I determine that the area in the vicinity of the United States 
border as described in the attached document, hereinafter the Project 
Area, which is incorporated and made a part hereof, is an area of high 
illegal entry. In order to deter illegal crossings in the Project Area, 
there is presently a need to construct fixed and mobile barriers and 
roads in conjunction with improvements to an existing levee system in 
the vicinity of the border of the United States as a joint effort with 
Hidalgo County, Texas. In order to ensure the expeditious construction 
of the barriers and roads that Congress prescribed in the IIRIRA in the 
Project Area, which is an area of high illegal entry into the United 
States, I have determined that it is necessary that I exercise the 
authority that is vested in me by section 102(c) of the IIRIRA as 
amended. Accordingly, I hereby waive in their entirety, with respect to 
the construction of roads and fixed and mobile barriers (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 fences, roads, supporting 
elements, drainage, erosion controls, safety features, surveillance, 
communication, and detection equipment of all types, radar and radio 
towers, and lighting) in the Project Area, all federal, state, or other 
laws, regulations and legal requirements of, deriving from, or related 
to the subject of, the following laws, 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) (16 U.S.C. 470 et seq.)), 
the Migratory Bird Treaty Act (16 U.S.C. 703 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 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, 16 U.S.C. 469 et seq.), the Antiquities Act (16 
U.S.C. 431 et seq.), the Historic Sites, Buildings, and Antiquities Act 
(16 U.S.C. 461 et seq.), the Farmland Protection Policy Act (7 U.S.C. 
4201 et seq.), the Coastal Zone Management Act (Pub. L. 92-583, 16 
U.S.C. 1451 et seq.), the Federal Land Policy and Management Act (Pub 
L. 94-579, 43 U.S.C. 1701 et seq.), the National Wildlife Refuge System 
Administration Act (Pub. L. 89-669, 16 U.S.C. 668dd-668ee), the 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 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.), the American Indian 
Religious Freedom Act (42 U.S.C. 1996), the Religious Freedom 
Restoration Act (42 U.S.C. 2000bb), and the Federal Grant and 
Cooperative Agreement Act of 1977 (31 U.S.C. 6303-05).
    I reserve the authority to make further waivers from time to time 
as I may determine to be necessary to accomplish the provisions of 
section 102 of the IIRIRA, as amended.

    Dated: April 1, 2008.
Michael Chertoff,
Secretary.
[FR Doc. 08-1096 Filed 4-1-08; 2:03 pm]
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