Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as Amended, 28658-28660 [2020-10113]

Agencies

• DEPARTMENT OF HOMELAND SECURITY
• Office of the Secretary

[Federal Register Volume 85, Number 93 (Wednesday, May 13, 2020)]
[Notices]
[Pages 28658-28660]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10113]


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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 San Diego County, California, Imperial County, 
California, Yuma County, Arizona, Pima County, Arizona, Santa Cruz 
County, Arizona, Cochise County, Arizona, Luna County, New Mexico, 
Do[ntilde]a Ana County, New Mexico, El Paso County, Texas, Val Verde 
County, Texas, and Maverick County, Texas. The notice of determination 
was published in the Federal Register on February 20, 2020. 85 FR 9794. 
The description of one project area within the United States Border 
Patrol's Tucson Sector was inadvertently omitted from the February 20, 
2020, publication. For clarification purposes, this document is a 
republication of the February 20, 2020, document including the omitted 
description of 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, 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

[[Page 28659]]

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 San Diego, El Centro, Yuma, 
Tucson, El Paso, and Del Rio Sectors are areas of high illegal entry. 
In fiscal year 2019, the United States Border Patrol (``Border 
Patrol'') apprehended over 58,000 illegal aliens attempting to enter 
the United States between border crossings in the San Diego Sector. 
There were also over 300 drug-related events between border crossings 
in the San Diego Sector, through which Border Patrol seized over 3,300 
pounds of marijuana, over 1,280 pounds of cocaine, over 293 pounds of 
heroin, over 3,985 pounds of methamphetamine, and over 107 pounds of 
fentanyl. In fiscal year 2019, Border Patrol apprehended over 35,000 
illegal aliens attempting to enter the United States between border 
crossings in the El Centro Sector. There were also approximately 180 
drug-related events between border crossings in the El Centro Sector, 
through which Border Patrol seized over 100 pounds of marijuana, over 
60 pounds of cocaine, over 100 pounds of heroin, and over 2,600 pounds 
of methamphetamine. In fiscal year 2019, the Border Patrol apprehended 
over 68,000 illegal aliens attempting to enter the United States 
between border crossings in the Yuma Sector. There were also over 800 
drug-related events between border crossings in the Yuma Sector, 
through which Border Patrol seized over 3,000 pounds of marijuana, over 
33 pounds of heroin, over 1,186 pounds of methamphetamine, and over 50 
pounds of fentanyl. In fiscal year 2019, the Border Patrol apprehended 
over 63,000 illegal aliens attempting to enter the United States 
between border crossings in the Tucson Sector. There were also 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. In 
fiscal year 2019, the Border Patrol apprehended over 182,000 illegal 
aliens attempting to enter the United States between border crossings 
in the El Paso Sector. There were also over 400 drug-related events 
between border crossings in the El Paso Sector, through which the 
Border Patrol seized over 11,000 pounds of marijuana, over 137 pounds 
of cocaine, over 35 pounds of heroin, over 340 pounds of 
methamphetamine, and over two pounds of fentanyl. In fiscal year 2019, 
the Border Patrol apprehended over 57,000 illegal aliens attempting to 
enter the United States between border crossings in the Del Rio Sector. 
There were also over 146 drug-related events between border crossings 
in the Del Rio Sector, through which Border Patrol seized over 40 
pounds of marijuana, over 15 pounds of cocaine, over 24 pounds of 
heroin, and over 195 pounds of methamphetamine. Additionally, San Diego 
County, California, Imperial County, California, Yuma County, Arizona, 
Pima County, Arizona, Santa Cruz County, Arizona, Cochise County, 
Arizona, Luna County, New Mexico, Do[ntilde]a Ana County, New Mexico, 
El Paso County, Texas, Val Verde County, Texas, and Maverick County, 
Texas, which are located in the Border Patrol Sectors identified above, 
have been identified as High Intensity Drug Trafficking Areas by the 
Office of National Drug Control Policy.
    Due to the high levels of illegal entry of people and drugs within 
the Border Patrol Sectors identified above, I must use my authority 
under section 102 of IIRIRA to install additional physical barriers and 
roads in such Sectors. Therefore, DHS will take immediate action to 
construct new pedestrian and secondary fencing and replace existing 
vehicle barriers and primary pedestrian and secondary fencing in the 
Border Patrol's San Diego, El Centro, Yuma, Tucson, El Paso, and Del 
Rio Sectors. 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.
    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 Border Patrol 
Sectors identified above 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 Border Patrol's San Diego, El Centro, 
Yuma, Tucson, El Paso, and Del Rio Sector are areas of high illegal 
entry (the ``project areas'')--
Within the San Diego Sector:
     Starting approximately one and one-half (1.5) miles east 
of Border Monument 243 and extending east to the San Diego--Imperial 
County line;
Within the El Centro Sector:

     Starting at the San Diego--Imperial County line and 
extending east approximately 11 miles;
Within the Yuma Sector:

     Starting approximately three-quarters (.75) of a mile west 
of the Andrade Port of Entry and extending east to the Colorado River;
     Starting approximately five and one-half miles (5.5) miles 
south of the

[[Page 28660]]

Morelos Dam and extending south and generally following the Colorado 
River for approximately seven and one-half (7.5) miles;
     Starting at the point where the Colorado River crosses the 
international border between the United States and Mexico and extending 
east to approximately Border Monument 201;
Within the Tucson Sector:

     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;
     Starting approximately one-half (0.5) of a mile west of 
Border Monument 74 and extending east to the Arizona--New Mexico state 
line;
Within the El Paso Sector:

     Starting at approximately Border Monument 33 and extending 
east for approximately three (3) miles;
     Starting at approximately Border Monument 24 and extending 
east to approximately Border Monument 20;
     Starting approximately two and one-half (2.5) miles west 
of Border Monument 4 and extending east to approximately one-half (0.5) 
of a mile east of Border Monument 3;
     Starting approximately one and one-quarter (1.25) miles 
east of Border Monument 3 and extending east to approximately Border 
Monument 2;
     Starting at approximately the New Mexico--Texas state line 
and generally following the International Boundary and Water Commission 
levee south and east for approximately two (2) miles;
     Starting approximately one-half (0.5) of a mile north and 
west of the Paso Del Norte Port of Entry and generally following the 
International Boundary and Water Commission levee east to approximately 
one-half (0.5) of a mile south and east of the Bridge of the Americas 
Port of Entry;
     Starting approximately one and one-half (1.5) miles south 
and east of the Bridge of the Americas Port of Entry and generally 
following the International Boundary and Water Commission levee south 
and east to approximately nine (9) miles south and east of the Tornillo 
Port of Entry;
Within the Del Rio Sector:

     Starting approximately two and one-half (2.5) miles north 
and west of the Del Rio Port of Entry and extending south and east for 
approximately three and one-half (3.5) miles; and
     Starting approximately one-half (0.5) mile south of the 
Eagle Pass II Port of Entry and extending north for approximately three 
(3) miles.
    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 all contracting actions associated 
with 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 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 and regulations, including any legal requirements 
of, deriving from, or related to the subject of, the following statutes 
and regulations: 10 U.S.C. 2304; 10 U.S.C. 2304c; 10 U.S.C. 2306a; 10 
U.S.C. 2305(a)-(c), (e)-(f); Section 813 of Public Law 114-328, as 
amended by Section 822 of Public Law 115-91; 15 U.S.C. 657q; 48 CFR 
17.205; 48 CFR 17.207; 10 U.S.C. 2305a(b)-(e); 48 CFR 22.404-5; and 48 
CFR 28.102-1(c).
    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. 2020-10113 Filed 5-12-20; 8:45 am]
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