83 FR 3012 - 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 83, Issue 14 (January 22, 2018)

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 Santa Teresa Land Port of Entry in the state of New Mexico.

[Federal Register Volume 83, Number 14 (Monday, January 22, 2018)]
[Notices]
[Pages 3012-3014]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-00996]


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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 Santa Teresa Land Port of Entry in the state 
of New Mexico.

DATES: This determination takes effect on January 22, 2018.

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. 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. 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

[[Page 3013]]

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. 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, 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 El Paso Sector is an area of high 
illegal entry. For example, in fiscal year 2016, the United States 
Border Patrol (``Border Patrol'') apprehended over 25,000 illegal 
aliens and seized approximately 67,000 pounds of marijuana and 
approximately 157 pounds of cocaine. Since the creation of DHS, and 
through the construction of border infrastructure and other operational 
improvements, the Border Patrol has been able to make significant gains 
in border security within the El Paso Sector; however, more work needs 
to be done. In fact, in recent years, the El Paso Sector has seen an 
increase in apprehensions. The El Paso Sector therefore remains an area 
of high illegal entry for which there is an immediate need to construct 
border barriers and roads.
    To begin to meet the need for enhanced border infrastructure in the 
El Paso Sector, DHS will take immediate action to replace existing 
vehicle barrier with bollard wall. Vehicle barrier replacement in the 
El Paso Sector is among DHS's highest priority border security 
requirements. The vehicle barrier replacement will take place along an 
approximately twenty mile segment of the border that starts at the 
Santa Teresa Land Port of Entry and extends westward. This 
approximately twenty mile segment of the border is referred to herein 
as the ``project area'' and is more specifically described in Section 2 
below.
    Although the existing vehicle barrier has aided border enforcement 
within the project area, Border Patrol must have a more effective means 
of deterring and preventing illegal crossings. The area within Mexico 
that is situated across the border from the project area has a 
population of almost two million people, including the city of Ciudad 
Juarez. The close proximity of this heavily populated area and its 
urban infrastructure creates opportunities for illegal entrants to gain 
quick and immediate access to the border. On the United States side of 
the border, the eastern portion of the project area includes developed 
areas where illegal aliens can quickly blend into the population and 
have ready access to roads, highways, and other infrastructure. The 
western portion of the project area is made up of desert areas where 
there is little to no natural terrain that deters illegal crossings and 
illegal aliens can quickly access state highways as a means of travel 
into the interior of the United States. Replacing the existing vehicle 
barrier with bollard wall within the project area will improve Border 
Patrol's operational efficiency and, in turn, further deter and prevent 
illegal crossings.

Section 2

    I determine that the following area in the vicinity of the United 
States border, located in the State of New Mexico within the United 
States Border Patrol's El Paso Sector is an area of high illegal entry 
(the ``project area''): Starting at the Santa Teresa Land Port of Entry 
and extending west to Border Monument 10.
    There is presently a need to construct physical barriers and roads 
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 the 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 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 Farmland Protection Policy Act (7 U.S.C. 
4201 et seq.), the Federal Land

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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 Administrative Procedure Act (5 U.S.C. 
551 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 repeal the previous waiver published in the 
Federal Register on April 8, 2008 (73 FR 19078). I reserve the 
authority to make further waivers from time to time as I may determine 
to be necessary under section 102 of the IIRIRA, as amended.

    Dated: January 10, 2018.
Kirstjen M. Nielsen,
Secretary of Homeland Security.
[FR Doc. 2018-00996 Filed 1-19-18; 8:45 am]
 BILLING CODE 9111-14-P