Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as Amended, 17187-17188 [2019-08291]

Agencies

• DEPARTMENT OF HOMELAND SECURITY
• Office of the Secretary

[Federal Register Volume 84, Number 79 (Wednesday, April 24, 2019)]
[Notices]
[Pages 17187-17188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08291]


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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 in 
Yuma County, Arizona.

DATES: This determination takes effect on April 24, 2019.

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

    United States Border Patrol's Yuma Sector is an area of high 
illegal entry. In fiscal year 2018, the United States Border Patrol 
(``Border Patrol'') apprehended over 26,000 illegal aliens attempting 
to enter the United States between border crossings in the Yuma Sector. 
Also in fiscal year 2018, the Border Patrol had over 1,400 separate 
drug-related events between border

[[Page 17188]]

crossings in the Yuma Sector, through which it seized over 8,000 pounds 
of marijuana, over 78 pounds of cocaine, over 102 pounds of heroin, and 
over 1,700 pounds of methamphetamine. Additionally, Yuma County, 
Arizona, which is located in the Yuma 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 Yuma Sector, I must use my authority under Section 102 of IIRIRA to 
install additional physical barriers and roads in the Yuma Sector. 
Therefore, DHS will take immediate action to replace existing barriers 
in the Yuma Sector. The project will occur within two segments of the 
border in the Yuma Sector. The first is southeast of the Andrade Port 
of Entry and runs south along the international border adjacent to the 
Colorado River. The second is situated on the eastern edge of the Barry 
M. Goldwater Range. The segments within which such construction will 
occur are referred to herein as the ``project area'' and are more 
specifically described in Section 2 below.
    The existing barriers within the project area include both vehicle 
fencing and outmoded pedestrian fencing that no longer meet the United 
States Border Patrol's operational needs. The construction of vehicle 
barriers in the project area initially curtailed illegal vehicular 
crossings. However, transnational criminal organizations have adapted 
their tactics by smuggling illicit cargo by foot, cutting the barrier, 
or driving over it, which has prompted the need for the construction of 
a more effective barrier. The design of the existing pedestrian barrier 
makes it susceptible to being breached and repeated damage to the 
existing fencing has made it less effective. The existing vehicle 
barriers and outmoded pedestrian fencing will be replaced with an 
eighteen to thirty foot barrier that employs a more operationally 
effective design. In addition, roads will be constructed or improved 
and lighting will be installed.
    To support DHS's action under Section 102 of IIRIRA, DHS requested 
that the Department of Defense, pursuant to 10 U.S.C. 284(b)(7), assist 
by constructing fence, roads, and lighting within the Yuma Sector in 
order to block drug smuggling corridors across the international 
boundary between the United States and Mexico. The Acting 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 areas in the vicinity of the United 
States border, located in the State of Arizona within the United States 
Border Patrol's Yuma Sector, are areas of high illegal entry (the 
``project area''):
     Starting at the Morelos Dam and extending south and 
generally following the Colorado River for approximately five and one-
half (5.5) miles.
     Starting two and one-half (2.5) miles east of Border 
Monument 198 and extending east to Border Monument 197.
    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 area 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 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 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 and 320101-320106); the Wild and Scenic Rivers Act (Pub. L. 
90-542 (16 U.S.C. 1281 et seq.)); the Farmland Protection Policy Act (7 
U.S.C. 4201 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 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 Military Lands Withdrawal Act of 1999 (Pub L. 106-65, 113 
Stat. 885); the Sikes Act (16 U.S.C. 670, et seq.); and 43 U.S.C. 387.
    This waiver does not revoke or supersede previous waivers published 
in the Federal Register on January 19, 2007 (72 FR 2535) and April 8, 
2008 (73 FR 19078), which 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: April 18, 2019.
Kevin K. McAleenan,
Acting Secretary of Homeland Security.
[FR Doc. 2019-08291 Filed 4-23-19; 8:45 am]
 BILLING CODE 9111-14-P