[Federal Register Volume 88, Number 192 (Thursday, October 5, 2023)]
[Notices]
[Pages 69214-69215]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-22176]


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DEPARTMENT OF HOMELAND SECURITY


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

AGENCY: Office of the Secretary, (DHS).

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 in 
Starr County, Texas.

DATES: This determination takes effect on October 5, 2023.

SUPPLEMENTARY INFORMATION: Important missions of the Department of 
Homeland Security (``DHS'') include border security. 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 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 called on the Secretary to construct reinforced fencing on the 
southwest border and provide 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 (Border Patrol) Rio Grande Valley 
Sector is an area of ``high illegal entry.'' As of early August 2023, 
Border Patrol had encountered over 245,000 such entrants attempting to 
enter the United States between ports of entry in the Rio Grande Valley 
Sector in Fiscal Year 2023.
    Therefore, I must use my authority under section 102 of IIRIRA to 
install additional physical barriers and roads in the Rio Grande Valley 
Sector. Therefore, DHS will take immediate action to construct barriers 
and roads. Construction will be funded by a fiscal year 2019 
appropriation through which Congress appropriated funds for the 
construction border barrier in the Rio Grande Valley, and DHS is 
required to use those funds for their appropriated purpose. This 
project is consistent with DHS's plan to fulfill the requirements of 
President Biden's Proclamation (Proclamation No. 10142, 86 FR 7225 
(Jan. 20, 2021)), which ended the diversion of funds for border wall 
from military projects or other sources while calling for the 
expenditure of any funds Congress appropriated for barrier construction 
consistent with their appropriated purpose. The areas in the vicinity 
of the border within which such construction will occur are more 
specifically described in Section 2 below. Such areas are not located 
within any of the areas identified in section 231 of title II of 
division A of the Fiscal Year 2019 DHS Appropriations Act. See Public 
Law 116-6, Div. A, Title II, sec. 231.

Section 2

    As set forth in section 102(a) of IIRIRA, I determine that the 
following areas in the vicinity of the United States border, located in 
the State of Texas within the Border Patrol's Rio Grande Valley Sector, 
are areas of ``high illegal entry'' (the ``project areas''):
    <bullet> Starting approximately one mile south of the Falcon Dam 
and extending southeast for approximately two miles.
    <bullet> Starting at the southeast boundary of the Arroyo Morteros 
Tract of the Lower Rio Grande Valley National Wildlife Refuge and 
extending southeast for approximately one mile.
    <bullet> Starting at the northernmost boundary of the Las Ruinas 
Tract of the Lower Rio Grande Valley National Wildlife Refuge and 
extending north for approximately one mile.
    <bullet> Starting at the eastern boundary of the Arroyo Ramirez 
Tract of the Lower Rio Grande Valley National Wildlife Refuge and 
extending east for approximately one-half mile.
    <bullet> Starting one-half mile south of the intersection of Perez 
Road and U.S. Highway 83 and generally following the Rio Grande River 
to approximately one-quarter mile south and east of the intersection of 
Leos Road and U.S. Highway 83.
    <bullet> Starting approximately three-quarters of a mile southeast 
of the intersection of North Redwoods Street and U.S. Highway 83 and 
extending southeast to the northwest boundary of the Los Velas West 
Tract of the Lower Rio Grande Valley National Wildlife Refuge.
    <bullet> Starting approximately one-tenth (0.1) of a mile south of 
the intersection of Trophy Street and Moonbeam Street and extending 
east to approximately one mile south of the intersection of Los Olmitos 
Road and Farm to Market Road 1430.
    <bullet> Starting approximately one mile south of the intersection 
of Los Olmitos Road and Farm to Market Road 1430 and extending 
southeast to the northwest boundary of the La Casita East Tract of the 
Lower Rio Grande Valley National Wildlife Refuge.
    <bullet> Starting approximately one mile south of the intersection 
of Mission Street and Old Military Highway and

[[Page 69215]]

extending southeast for approximately one and three-quarters miles.
    <bullet> Starting at the northeast boundary of the Villareales 
Banco Tract of the Lower Rio Grande Valley National Wildlife Refuge and 
extending east to the western boundary of the of the Cuevitas Tract of 
the Lower Rio Grande Valley National Wildlife Refuge.
    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 the construction of roads and 
physical barriers (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, 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 Public Law 113-287, 128 Stat. 3094 
(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, 93 Stat. 721 (Oct. 31, 1979) (16 U.S.C. 470aa et seq.)); the 
Paleontological Resources Preservation Act (16 U.S.C. 470aaa 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, 74 Stat. 220 (June 27, 1960) as 
amended, repealed, or replaced by Public Law 113-287, 128 Stat. 3094 
(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 National Wildlife Refuge System Administration Act 
(Pub. L. 89-669, 80 Stat. 926 (Oct. 15, 1966) (16 U.S.C. 668dd-668ee)); 
National Fish and Wildlife Act of 1956 (Pub. L. 84-1024, 70 Stat. 1119 
(Aug. 8, 1956) (16 U.S.C. 742a, et seq.)); the Fish and Wildlife 
Coordination Act (Pub. L. 73-121, 48 Stat. 401 (March 10, 1934) (16 
U.S.C. 661 et seq.)); the National Trails System Act (16 U.S.C. 1241 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.); the 
American Indian Religious Freedom Act (42 U.S.C. 1996); and the Federal 
Land Policy and Management Act (Pub. L. 94-579, 90 Stat. 2743 (Oct. 21, 
1976) (43 U.S.C. 1701 et seq.)).
    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.

Alejandro N. Mayorkas,
Secretary. U.S. Department of Homeland Security.
[FR Doc. 2023-22176 Filed 10-4-23; 8:45 am]
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