83 FR 50949 - 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 196 (October 10, 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 in Cameron County in the State of Texas.

[Federal Register Volume 83, Number 196 (Wednesday, October 10, 2018)]
[Notices]
[Pages 50949-50951]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-21930]


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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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[[Page 50950]]

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 in Cameron County in the State of Texas.

DATES: This determination takes effect on October 10, 2018.

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, Sec.  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 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, 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 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 Rio Grande Valley Sector is an 
area of high illegal entry. For the last several years, the Rio Grande 
Valley Sector has seen more apprehensions of illegal aliens than any 
other sector of the United States Border Patrol (``Border Patrol''). 
For example, in fiscal year 2017 alone, Border Patrol apprehended over 
137,000 illegal aliens. In that same year Border Patrol seized 
approximately 260,000 pounds of marijuana and approximately 1,200 
pounds of cocaine.
    In order to satisfy the need for additional border infrastructure 
in the Rio Grande Valley Sector, DHS will take action to construct 
barriers and roads. DHS will construct mechanical gates and roads 
within gaps of existing barriers in the vicinity of the United States 
border in the Rio Grande Valley Sector. The segments of the border 
within which such construction will occur are referred to herein as the 
``project area'' and are more specifically described in Section 2 
below.

Section 2

    I determine that the following areas in the vicinity of the United 
States border, located in Cameron County in the State of Texas, within 
the United States Border Patrol's Rio Grande Valley Sector, are areas 
of high illegal entry (the ``project area''):
     Starting approximately three-tenths (0.3) of a mile west 
of a gap in the existing levee wall commonly referred to as the Anacua 
gate location, which is situated at the intersection of Wichita Street 
and the International Boundary and Water Commission (IBWC) levee 
approximately one and one-half (1.5) miles south of the intersection of 
Wichita Street with US Route 281, and extending to approximately three-
tenths (0.3) of a mile east of the Anacua gate location.
     Starting approximately three-tenths (0.3) of a mile west 
of a gap in the existing levee wall commonly referred to as the Webber 
Road gate location, which is situated at the intersection of Webber 
Road and the IBWC levee located approximately eight-tenths (0.8) of a 
mile southwest of the intersection of Webber Road with US Route 281, 
and extending approximately three-tenths (0.3) of a mile east of the 
Webber Road gate location.
     Starting approximately three-tenths (0.3) of a mile 
southwest of a gap in the existing levee wall commonly referred to as 
the Cantu Road gate location, which is situated at the intersection of 
Avilia Road and the IBWC levee located approximately eight-tenths of a 
mile south of the intersection of Avilia Road with US Route 281, and 
extending approximately three-tenths (0.3) of a mile northeast of the 
Cantu Road gate location.
     Starting approximately three-tenths (0.3) of a mile west 
of a gap in the existing levee wall commonly referred to as the Garza 
Sandpit Road gate location, which is situated at the intersection of 
the County Road 677 and the IBWC levee located approximately two-tenths 
(0.2) of a mile southwest of the intersection of County Road 677 with 
US Route 281, and extending approximately three-tenths (0.3) of a mile 
northeast of the Garza Sandpit Road gate location.
     Starting approximately three-tenths (0.3) of a mile 
northwest of a gap in the existing levee wall commonly referred to as 
the Pool Road gate location, which is situated at the intersection of 
Domanski Drive with the IBWC levee located approximately one (1) mile 
south of the intersection of Domanski Drive and US Route 281, and 
extending approximately three-tenths (0.3) of a mile southeast of the 
Pool Road gate location.
     Starting approximately three-tenths (0.3) of a mile 
northwest of a gap in the existing levee wall commonly referred to as 
the Flor De Mayo gate location, which is situated at the intersection 
of Flor De Mayo Road and the IBWC levee located approximately seven-
tenths (0.7) of a mile southwest of the intersection of Flor De Mayo 
Road with US Route 281, and extending approximately three-tenths (0.3) 
of a mile southeast of the Flor De Mayo Road gate location.
     Starting approximately three-tenths (0.3) of a mile 
northwest of a gap in the existing levee wall commonly referred to as 
the Impala Road gate location, which is situated at the intersection of

[[Page 50951]]

an unnamed road and the IBWC levee (said unnamed road is approximately 
250 feet long from its point of intersection with the IBWC levee and a 
point located approximately 100 feet northwest of the intersection of 
Impala Drive and Gazelle Avenue) located approximately one (1) mile 
east of the Brownsville/Veterans Port of Entry, and extending 
approximately three-tenths (0.3) of a mile southeast of the Impala Road 
gate location.
     Starting approximately three-tenths (0.3) of a mile west 
of a gap in the existing levee wall commonly referred to as the South 
Point Road gate location, which is situated at the intersection of 
South Point Road and the IBWC levee located approximately seven-tenths 
(0.7) of a mile south of the intersection of South Point Road with 
Southmost Boulevard, and extending approximately three-tenths (0.3) of 
a mile northeast of the South Point Road gate location.
     Starting approximately three-tenths (0.3) of a mile south 
of a gap in the existing levee wall commonly referred to as the Loops 
Sandpit gate location, which is situated at the intersection of an 
unnamed road and the IBWC levee located approximately 65 feet east of 
the intersection of Alaska Road with S. Oklahoma Drive, and extending 
approximately three-tenths (0.3) of a mile north of the Loops Sandpit 
gate location.
     Starting approximately three-tenths (0.3) of a mile south 
of a gap in the existing levee wall commonly referred to as the 
Implement Shed gate location, which is situated at the intersection of 
County Road 142 and the IBWC levee located approximately 675 feet east 
of the intersection of Oklahoma Avenue with County Road 142, and 
extending approximately three-tenths (0.3) of a mile north of the 
Implement Shed gate location.
     Starting approximately three-tenths (0.3) of a mile south 
of a gap in the existing levee wall commonly referred to as the Florida 
Road gate location, which is situated at the intersection of Florida 
Road and the IBWC levee located approximately 600 feet east of the 
intersection of Oklahoma Avenue with Florida Road, and extending 
approximately three-tenths (0.3) of a mile north of the Florida Road 
gate location.
    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 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.
    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, safety features, lighting, cameras, and sensors) in the 
project area, 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 (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 Coastal 
Zone Management Act (Pub. L. 92-583 (16 U.S.C. 1451, 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); 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 River 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.); and the American Indian 
Religious Freedom Act (42 U.S.C. 1996).
    This waiver does not revoke or supersede the previous waiver 
published in the Federal Register on April 8, 2008 (73 FR 19078), which 
shall remain in full force and effect in accordance with its 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.

     Dated: October 2, 2018.
Kirstjen M. Nielsen,
Secretary of Homeland Security.
[FR Doc. 2018-21930 Filed 10-9-18; 8:45 am]
 BILLING CODE 9111-14-P