[Federal Register Volume 86, Number 1 (Monday, January 4, 2021)]
[Notices]
[Pages 114-115]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-29128]


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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 Acting 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 in Imperial County, California.

DATES: This determination takes effect on January 4, 2021.

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

[[Page 115]]

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 El Centro Sector is an area of 
high illegal entry. In fiscal year 2020, the United States Border 
Patrol (``Border Patrol'') apprehended over 11,000 illegal aliens 
attempting to enter the United States between border crossings in the 
El Centro Sector. In that same time period, between border crossings in 
the El Centro Sector the Border Patrol seized over 200 pounds of 
marijuana, over 50 pounds of cocaine, over 30 pounds of heroin, over 
3,100 pounds of methamphetamine, and over 60 pounds of fentanyl.
    Due to the high levels of illegal entry within the El Centro 
Sector, I must use my authority under section 102 of IIRIRA to install 
additional physical barriers and roads in the El Centro Sector. 
Therefore, DHS will take immediate action to construct primary and 
secondary barriers in the El Centro Sector. The areas in the vicinity 
of the border within which such construction will occur are referred to 
herein as the ``project areas'' 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 the State of California in the Border 
Patrol's El Centro Sector are areas of high illegal entry (the 
``project areas''):

<bullet> Starting one-half (0.5) of a mile west of the San Diego 
County--Imperial County line and extending east to approximately one 
mile east of Border Monument 210

    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: 41 U.S.C. 3301; 41 U.S.C. 3302(b)-(e); 41 U.S.C. 3304; 
41 U.S.C. 3306(a); 41 U.S.C. 3309(b)-(e); 41 U.S.C. 3502; 41 U.S.C. 
4103(c), (d)(3)-(4); 41 U.S.C. 4104(b); 41 U.S.C. 4106(c)-(d); 41 
U.S.C. 6101(b)(1); 41 U.S.C. 1126; 41 U.S.C. 1708(a), (c), (e); Section 
880 of Division A, Title VIII of Public Law 115-232; 15 U.S.C. 644; 15 
U.S.C. 657q; 15 U.S.C. 631(j); 15 U.S.C. 637(d)-(f), and (h); 13 CFR 
part 125; 48 CFR 22.404-5; 48 CFR 16.504(c); and 48 CFR 16.505(a)(4) 
and (5), (a)(8)(i) and (iii), (b).
    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 Ian J. Brekke, who is Deputy 
General Counsel for DHS, for purposes of publication in the Federal 
Register.

Ian J. Brekke,
Deputy General Counsel for DHS.
[FR Doc. 2020-29128 Filed 12-30-20; 4:15 pm]
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