82 FR 35984 - Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as Amended

DEPARTMENT OF HOMELAND SECURITY
Office of the Secretary

Federal Register Volume 82, Issue 147 (August 2, 2017)

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 near the city of San Diego in the state of California.

[Federal Register Volume 82, Number 147 (Wednesday, August 2, 2017)]
[Notices]
[Pages 35984-35985]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2017-16260]


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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 near the city of San Diego in the state of 
California.

DATES: This determination takes effect on August 2, 2017.

SUPPLEMENTARY INFORMATION: The principal 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 
ordered 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. Secure Fence Act of 2006, Public Law 109-367, 2, 120 Stat. 
2638 (Oct. 26, 2006) (8 U.S.C. 1701 note). 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. To achieve this end, the President 
directed, among other things, that I take immediate steps to prevent 
all unlawful entries into the United States, to include the immediate 
construction of physical infrastructure to prevent illegal entry. 
Executive Order 13767, Sec.  4(a).
    Congress has provided the Secretary of Homeland Security with a 
number of authorities necessary to carry out DHS's border security 
mission, including the border security provisions described above. One 
of these authorities is found at section 102 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, 
Sec.  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 has called for 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 Sector is one of the 
busiest Sectors in the Nation. For example, in fiscal year 2016 alone, 
the United States Border Patrol apprehended over 31,000 illegal aliens 
and seized approximately 9,167 pounds of marijuana and approximately 
1,317 pounds of cocaine in the San Diego Sector. To be sure, the 
construction of border infrastructure and other operational 
improvements have improved border security in the San Diego Sector; 
however, more work needs to be done. The San Diego Sector remains an 
area of high illegal entry for which there is an immediate need to 
construct additional border barriers and roads.
    To begin to meet the need for additional border infrastructure 
within the San Diego Sector, DHS will immediately implement various 
border infrastructure projects. These projects will focus on an 
approximately fifteen mile segment of the border within the San Diego 
Sector that starts at the Pacific Ocean and extends eastward. This 
approximately fifteen mile segment of the border is referred to herein 
as the ``Project Area'' and is more specifically described in Section 2 
below.
    All of the projects that DHS will undertake within the Project Area 
will further Border Patrol's ability to deter and prevent illegal 
crossings. For example, DHS will replace existing primary fencing in 
the Project Area. The

[[Page 35985]]

majority of the existing primary fence in the Project Area was built in 
the early 1990s using a fence design that is no longer optimal for 
Border Patrol operations. The new primary barrier will use an 
operationally effective design that is intended to meet Border Patrol's 
current requirements. DHS will also build prototype border wall in the 
Project Area near the eastern terminus of the existing secondary 
barrier. The construction of border wall prototypes in the Project Area 
and the robust physical characteristics that are to be incorporated 
into the border wall prototypes are intended to deter illegal 
crossings. In addition to deterring illegal crossings in the Project 
Area, DHS will use the border wall prototypes to evaluate various 
design features for potential inclusion in a border wall standard that 
will be developed by the Government and utilized as a part of border 
wall construction going forward. Importantly, construction of the 
border wall prototypes in the Project Area also means that DHS can 
evaluate various design features in the border environment under actual 
operational conditions. As such, the construction of border wall 
prototypes will not only deter illegal entry in the Project Area, but 
evaluation of the border wall prototypes is also critical to and 
necessary for future border wall design and construction.

Section 2

    I determine that the following area in the vicinity of the United 
States border, located in the state of California within the United 
States Border Patrol's San Diego Sector, which is referred to herein as 
the Project Area, is an area of high illegal entry: Starting at the 
Pacific Ocean and extending to approximately one mile east of Border 
Monument 251.
    There is presently a need to construct physical barriers and roads, 
including the infrastructure projects described in Section 1, in the 
vicinity of the border of the United States to deter illegal crossings 
in the Project Area. 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 as amended.
    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 
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, and safety features) in the Project Area, 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 & 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 Coastal Zone Management Act (Pub. L. 92-583 (16 U.S.C. 1451 et 
seq.)), the Wilderness Act (Pub. L. 88-577 (16 U.S.C. 1131 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 National Wildlife Refuge 
System Improvement Act of 1997 (Pub. L. 105-57), 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.), an Act 
of Oct. 30, 2000, Pub. L. 106-398, 1, 114 Stat. 1654 (enacting into law 
Sec.  2848 of Part II of Subtitle D of Title XXVIII of Division B of 
H.R. 5408 (114 Stat. 1654A-426), as introduced on Oct. 6, 2000), the 
Administrative Procedure Act (5 U.S.C. 551 et seq.), the Otay Mountain 
Wilderness Act of 1999 (Pub. L. 106-145), sections 102(29) and 103 of 
Title I of the California Desert Protection Act (Pub. L. 103-433), 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), and the Religious Freedom 
Restoration Act (42 U.S.C. 2000bb).
    This waiver does not repeal the previous waiver published in the 
Federal Register on September 22, 2005 (70 FR 55622).
    I reserve the authority to make further waivers from time to time 
as I may determine to be necessary under section 102 of IIRIRA, as 
amended.

    Dated: July 26, 2017.
John F. Kelly,
Secretary of Homeland Security.
[FR Doc. 2017-16260 Filed 8-1-17; 8:45 am]
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