Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as Amended, 52118-52120 [2019-21188]

Agencies

• DEPARTMENT OF HOMELAND SECURITY
• Office of the Secretary

[Federal Register Volume 84, Number 190 (Tuesday, October 1, 2019)]
[Notices]
[Pages 52118-52120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-21188]


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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 Cameron County, Texas and Hidalgo County, 
Texas.

DATES: This determination takes effect on October 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. Between October 1, 2018, and 
August 31, 2019, the Border Patrol apprehended over 325,000 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 900 separate drug-related events between border 
crossings in the Rio Grande Valley Sector, through which it seized over 
112,000 pounds of marijuana, over 2,300 pounds of cocaine, over 90 
pounds of heroin, and over 1,600 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 construct roads and mechanical gates within 
gaps of existing barriers in the vicinity of the United States border 
in the Rio Grande Valley Sector. The areas in the vicinity of the 
border within which such construction will occur are more specifically 
described in Section 2 below. Such

[[Page 52119]]

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''):
     In Cameron County, starting approximately one-tenth (0.1) 
of a mile west of a gap in the existing barrier commonly referred to as 
the Sabal Palm gate location, which is situated approximately one-half 
(0.5) of a mile south of the intersection of Sabal Palm Grove Road and 
Southmost Road, and extending to approximately one-tenth (0.1) of a 
mile northeast of the Sabal Palm Gate location.
     In Cameron County, starting approximately one-tenth (0.1) 
of a mile west of a gap in the existing barrier commonly referred to as 
the Landrums gate location, which is situated approximately two-tenths 
(0.2) of a mile southeast of the intersection of Military Highway and 
South Sam Houston Boulevard, and extending to approximately one-tenth 
(0.1) of a mile east of the Landrums gate location.
     In Cameron County, starting approximately one-tenth (0.1) 
of a mile north of a gap in the existing barrier commonly referred to 
as the Rio Grande Avenue gate location, which is situated immediately 
east of the intersection of Rio Grande Avenue and Robertson Road, and 
extending to approximately one-tenth (0.1) of a mile south of the Rio 
Grande Avenue gate location.
     In Cameron County, starting approximately one-tenth (0.1) 
of a mile west of a gap in the existing barrier, commonly referred to 
as the Robertson Road gate location, which is situated immediately 
north of the intersection of Robertson Road and Rio Grande Avenue, and 
extending to approximately one-tenth (0.1) of a mile east of the 
Robertson Road gate location.
     In Hidalgo County, starting approximately one-tenth (0.1) 
of a mile northwest of a gap in the existing levee wall commonly 
referred to as the 263 Road gate location, which is situated on the 
International Boundary Water Commission (``IBWC'') levee approximately 
one-quarter (0.25) of a mile southwest of the intersection of Military 
Road and Domingo Trevino Drive, and extending to approximately one-
tenth (0.1) of a mile southeast of the 263 Road gate location.
     In Hidalgo County, starting approximately one-tenth (0.1) 
of a mile north of a gap in the existing levee wall commonly referred 
to as the Strawberry Farms gate location, which is situated on the IBWC 
levee approximately four-tenths (0.4) of a mile southwest of the 
intersection of Villarre Crispin Street and Military Road, and 
extending to approximately eight-tenths (0.8) of a mile southeast of 
the Strawberry Farms gate location.
     In Hidalgo County, starting approximately one-tenth (0.1) 
of a mile northwest of a gap in the existing levee wall commonly 
referred to as the Hoki's gate location, which is situated on the IBWC 
levee approximately nine-tenths (0.9) of a mile southeast of the 
intersection of Chihuahua Road and Military Road, and extending to 
approximately one-tenth (0.1) of a mile southeast of the Hoki's gate 
location.
     In Hidalgo County, starting approximately one-tenth (0.1) 
of a mile northwest of a gap in the existing levee wall commonly 
referred to as the Metz Farms gate location, which is situated on the 
IBWC levee approximately six-hundredths (.06) of a mile southeast of 
the intersection of Chihuahua Road and Military Road, and extending to 
approximately one-tenth (0.1) of a mile southeast of the Metz Farms 
gate location.
     In Hidalgo County, starting approximately one-tenth (0.1) 
of a mile west of the gap in the existing levee wall, commonly referred 
to as the Mudhole Road gate location, which is located on the IBWC 
levee approximately one-tenth (0.1) of a mile southeast of the 
intersection of Manuelita Rios Road and Farm to Market Road 1427, and 
extending to approximately one-tenth (0.1) of a mile east of the 
Mudhole Road gate location.
     In Hidalgo County, starting approximately one-tenth (0.1) 
of a mile northwest of a gap in the existing levee wall commonly 
referred to as the Boat Ramp Gate (Cistern) gate location, which is 
situated four-tenths (0.4) of a mile northwest of the intersection of 
County Road 1598 and the IBWC levee, and extending to approximately 
one-half (.0.5) of mile southeast of the Boat Ramp Gate (Cistern) gate 
location.
     In Hidalgo County, starting approximately one-tenth (0.1) 
of a mile southwest of a gap in the existing levee wall commonly 
referred to as the Fuller gate location, which is situated at the 
intersection County Road 1598 and the IBWC levee, and extending to 
approximately six-tenths (0.6) of a mile east of the Fuller gate 
location.
     In Hidalgo County, starting approximately one-tenth (0.1) 
of a mile north of a gap in the existing levee wall commonly referred 
to as the Basin Ramp (PGR) gate location, which is situated 
approximately one-tenth (0.1) of a mile southwest of where Desiga Way 
terminates at Progresso Settling Basin, and extending to approximately 
one-tenth (0.1) of a mile south of the Basin Ramp (PGR) gate location.
     In Hidalgo County, starting approximately one-tenth (0.1) 
of a mile southwest of a gap in the existing levee wall commonly 
referred to as the Progresso Pump gate location, which is situated 
approximately two-tenths (0.2) of mile southwest of the intersection of 
Moon Lake Drive South and the IBWC levee, and extending to 
approximately one-tenth (0.1) of a mile northeast of the Progresso Pump 
gate location.
     In Hidalgo County, starting approximately two-tenths (0.2) 
of a mile west of a gap in the existing levee wall commonly referred to 
as the Octavio Garcia Ramp gate location, which is situated three-
hundredths (0.03) of a mile east of the intersection of County Road 793 
and County Road 1702, and extending to approximately one-tenth (0.1) of 
a mile east of the Octavio Garcia Ramp gate location.
     In Hidalgo County, starting approximately seven-tenths 
(0.7) of a mile west of a gap in the existing levee wall commonly 
referred to as the Beckwith Ramp gate location, which is situated at 
the intersection of County Road 793 and County Road 1706, and extending 
to approximately one-tenth of a mile east of the Beckwith Ramp gate 
location.
     In Hidalgo County, starting approximately one-half (0.5) 
of a mile west of a gap in the existing levee wall commonly referred to 
as the Swamp Refuge gate location, which is situated approximately 
four-tenths (0.4) of a mile east of the intersection of County Road 793 
and County Road 1706, and extending to approximately one-tenth (0.1) of 
a mile east of the Swamp Refuge gate location.
     In Hidalgo County, starting approximately six-tenths (0.6) 
of a mile northwest of a gap in the existing levee wall commonly 
referred to as the Fuller Ramp gate location, which is situated 
approximately one (1) mile east of the intersection of County Road 793 
and County Road 1706, and extending to approximately one-tenth (0.1) of 
a mile southeast of the Fuller Ramp gate location.
     In Hidalgo County, starting approximately one-tenth (0.1) 
of a mile southwest of a gap in the existing levee wall commonly 
referred to as the East of Hidalgo Port of Entry gate location, located 
approximately two-tenths (0.2)

[[Page 52120]]

of a mile southwest of the intersection of International Boulevard and 
South Bridge Street, and extending to approximately one-tenth (0.1) of 
a mile northeast of the East of Hidalgo Port of Entry gate location.
     In Hidalgo County, starting approximately one-tenth (0.1) 
of a mile northwest of a gap in the existing levee wall commonly 
referred to as the Bell Brothers Road gate location, which is situated 
at the intersection of Cantu Trail Road and the IBWC levee, and 
extending to approximately one-tenth (0.1) of a mile southeast of the 
Bell Brothers Road gate location.
     In Hidalgo County, starting approximately six-tenths (0.6) 
of a mile southwest of a gap in the existing levee wall commonly 
referred to as the McManus Farms gate location, which is situated at 
the intersection of County Road 1582 and the IBWC levee, and extending 
to approximately one-tenth (0.1) of a mile southeast of the McManus 
Farms gate location.
     In Hidalgo County, starting approximately one-tenth (0.1) 
of a mile southwest of a gap in the existing levee wall commonly 
referred to as the American Farms gate location, which is situated at 
the intersection of County Road 1594 and the IBWC levee, and extending 
to approximately one-tenth (0.1) of a mile northeast of the American 
Farms gate location.
     In Hidalgo County, starting approximately one-tenth (0.1) 
of a mile southwest of a gap in the existing levee wall commonly 
referred to as the Munoz gate location, which is situated approximately 
two-tenths (0.2) of a mile northeast of the intersection of County Road 
1594 and the IBWC levee, and extending to approximately one-tenth (0.1) 
of a mile northeast of the Munoz gate location.
     In Hidalgo County, starting approximately one-tenth (0.1) 
of a mile northwest of the Penitas Pump House on the IBWC levee and 
extending in a southeasterly direction for approximately one-quarter 
(0.25) of a mile to a point on the IBWC levee.
    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 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 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 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 Coastal Zone Management Act (Pub. L. 92-583 
(16 U.S.C. 1451 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 the previous waivers 
published in the Federal Register on April 8, 2008, (73 FR 19077 and 73 
FR 19078) and October 11, 2018, (83 FR 51472), which shall remain in 
full force and effect in accordance with their respective 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.

Kevin K. McAleenan,
Acting Secretary of Homeland Security.
[FR Doc. 2019-21188 Filed 9-30-19; 8:45 am]
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