Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as Amended, 28660-28662 [2020-10112]

Agencies

• DEPARTMENT OF HOMELAND SECURITY
• Office of the Secretary

[Federal Register Volume 85, Number 93 (Wednesday, May 13, 2020)]
[Notices]
[Pages 28660-28662]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10112]


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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; correction.

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SUMMARY: The Acting Secretary of Homeland Security determined, pursuant 
to law, that it was 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 Pima County, Arizona, Santa Cruz County, Arizona, and 
Cochise County, Arizona. The notice of determination was published in 
the Federal Register on March 16, 2020. 85 FR 14961. The description of 
one project area was inadvertently omitted from the March 16, 2020, 
publication. For clarification purposes, this document is a 
republication of the March 16, 2020, document including the omitted 
description of the one project area within the United States Border 
Patrol's Tucson Sector.

DATES: This determination takes effect on May 13, 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,

[[Page 28661]]

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

    The United States Border Patrol's Tucson Sector is an area of high 
illegal entry. In fiscal year 2019, the United States Border Patrol 
(``Border Patrol'') apprehended over 63,000 illegal aliens attempting 
to enter the United States between border crossings in the Tucson 
Sector. Also in fiscal year 2019, there were over 1,200 drug-related 
events between border crossings in the Tucson Sector, through which 
Border Patrol seized over 59,000 pounds of marijuana, over 150 pounds 
of cocaine, over 155 pounds of heroin, over 2,700 pounds of 
methamphetamine, and over 12 pounds of fentanyl. Additionally, Pima 
County, Arizona, Santa Cruz County, Arizona, and Cochise County, 
Arizona, which are located in the Tucson Sector, have 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 Tucson Sector, I must use my authority under section 102 of IIRIRA 
to install additional physical barriers and roads in the Tucson Sector. 
Therefore, DHS will take immediate action to construct new primary and 
secondary fencing and replace existing pedestrian and secondary fencing 
in the Tucson Sector. The segments within which such construction will 
occur are referred to herein as the ``project areas'' and are more 
specifically described in Section 2 below.
    The lack of adequate barriers, either due to a complete absence of 
barrier or ineffective primary or secondary fencing that no longer meet 
Border Patrol's operational needs, continues to be particularly 
problematic as it pertains to the trafficking of illegal narcotics in 
the Tucson Sector. The replacement of outmoded primary and secondary 
fencing and the construction of new primary pedestrian fencing will add 
much needed infrastructure in the Tucson Sector. The added impedance 
capability will slow or stop illegal activity, afford Border Patrol 
more time to respond, and increase the likelihood of interdiction. 
Within the project areas roads will also be constructed or improved and 
lighting will be installed.
    To support DHS's action under section 102 of IIRIRA, I requested 
that the Secretary of Defense, pursuant to 10 U.S.C. 284(b)(7), assist 
by constructing fence, roads, and lighting within the Tucson Sector in 
order to block drug smuggling corridors across the international 
boundary between the United States and Mexico. The 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 areas 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 Tucson Sector, are areas of high illegal entry (the 
``project areas''):
     Starting two (2) miles north and west of Border Monument 
140 and extending south and east to approximately one and one-half 
(1.5) miles east of Border Monument 124;
     Starting approximately one-half (.5) of a mile west of 
Border Monument 118 and continuing east to approximately one-half (.5) 
of a mile east of Border Monument 118;
     Starting approximately one (1) mile west of Border 
Monument 116 and extending east to approximately one mile (1) east of 
Border Monument 100;
     Starting at approximately Border Monument 98 and extending 
east for approximately 10 miles;
     Starting approximately one-half (0.5) of a mile west of 
the Naco Port of Entry and extending east to approximately Border 
Monument 92;
     Starting approximately one-half (0.5) of a mile west of 
Border Monument 91 and extending east for approximately 16 miles;
     Starting approximately one-half (0.5) of a mile east of 
Border Monument 83 and extending west for two (2) miles; and
     Starting approximately one-half (0.5) of a mile west of 
Border Monument 74 and extending east to the Arizona--New Mexico state 
line.
    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 physical 
barriers and 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

[[Page 28662]]

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 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); Wild and Scenic Rivers Act (Pub. L. 90-542, 82 Stat. 906 (Oct. 
2, 1968) (16 U.S.C. 1271 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, 90 Stat. 2743 (Oct. 21, 1976) (43 U.S.C. 1701 et 
seq.)); the Wilderness Act (Pub. L. 88-577, 78 Stat. 890 (Sept. 3, 
1964) (16 U.S.C. 1131 et seq.)); sections 101(a)(14), 101(a)(17), and 
101(b) of Title I of the Arizona Wilderness Act of 1984 (Pub. L. 98-
406, 98 Stat. 1486 (August 28, 1984)); the National Wildlife Refuge 
System Administration Act (Pub. L. 89-669 (16 U.S.C. 668dd-668ee)); the 
National Wildlife Refuge System Improvement Act of 1997 (Pub. L. 105-
57); 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 
Wild Horse and Burro Act (16 U.S.C. 1331 et seq.); the Rivers and 
Harbors Act of 1899 (33 U.S.C. 403); the National Park Service Organic 
Act and the National Park Service General Authorities Act (Pub. L. 64-
235, 39 Stat. 535 (Aug. 25, 1916) and Pub. L. 91-383, 84 Stat. 825 
(Aug. 18, 1970) as amended, repealed, or replaced by Pub. L. 113-287, 
128 Stat. 3094 (Dec. 19, 2014) (formerly codified at 16 U.S.C. 1, 2-4 
and 16 U.S.C. 1a-1 et seq., now codified at 54 U.S.C. 100101--100102, 
54 U.S.C. 100301-100303, 54 U.S.C. 100501-100507, 54 U.S.C. 100701-
100707, 54 U.S.C. 100721-100725, 54 U.S.C. 100751-100755, 54 U.S.C. 
100901-100906, 54 U.S.C. 102101-102102)); Arizona-Idaho Conservation 
Act of 1988 (Pub. L. 100-696, 102 Stat. 4571 (Nov. 18, 1988) (16 U.S.C. 
460xx)); 16 U.S.C. 450y (Pub. L. 77-216, 55 Stat. 630 (Aug. 18, 1941), 
as amended by Pub. L. 82-478, 66 Stat. 510 (July 9, 1952)); 67 Stat. 
c18 (Nov. 5, 1952); National Forest Management Act of 1976 (16 U.S.C. 
1600 et seq.); Multiple-Use and Sustained-Yield Act of 1960 (16 U.S.C. 
528-531); 16 U.S.C. 472; 16 U.S.C. 551; 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 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 DHS, for 
purposes of publication in the Federal Register.

Chad R. Mizelle,
Senior Official Performing the Duties of the General Counsel.
[FR Doc. 2020-10112 Filed 5-12-20; 8:45 am]
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