[Federal Register Volume 82, Number 175 (Tuesday, September 12, 2017)]
[Notices]
[Pages 42829-42831]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-19234]


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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 Calexico in the state of California.

DATES: This determination takes effect on September 12, 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. One of these authorities is found at section 102 of the

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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 Centro Sector is an area of 
high illegal entry. In fiscal year 2016 alone, the United States Border 
Patrol (``Border Patrol'') apprehended over 19,000 illegal aliens and 
seized approximately 2,900 pounds of marijuana and approximately 126 
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 Centro Sector; however, more work 
needs to be done. The El Centro Sector 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 Centro Sector, DHS will take immediate action to replace existing 
primary fencing. Fence replacement in the El Centro Sector is among 
DHS's highest priority border security requirements. The fence 
replacement will take place along an approximately three mile segment 
of the border that starts at the Calexico West Land Port of Entry and 
extends westward. This approximately three mile segment of the border 
is referred to herein as the ``Project Area'' and is more specifically 
described in Section 2 below.
    The replacement of primary fencing within the Project Area will 
further Border Patrol's ability to deter and prevent illegal crossings. 
The existing primary fencing was installed in the 1990s, using a design 
that is no longer optimal for Border Patrol operations. The existing 
fourteen foot, landing mat-style fencing will be replaced with an 
eighteen to twenty-five foot barrier that employs a more operationally 
effective design that is intended to meet Border Patrol's operational 
requirements. In addition, DHS will, where necessary, make improvements 
to an existing patrol road within the Project Area to ensure that it 
meets Border Patrol's operational standards. Replacing the existing 
primary fence with a new, more operationally effective design and 
improving the existing patrol road 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 California within the United 
States Border Patrol's El Centro Sector is an area of high illegal 
entry (the ``Project Area''): Starting at the Calexico West Land Port 
of Entry and extending approximately three miles westward.
    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 Public 
Law 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 Public Law 
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 Policy and Management Act (Pub. 
L. 94-579 (43 U.S.C. 1701 et seq.)), section 10 of the Reclamation 
Project Act of 1939 (53 Stat. 1196, as amended by 64 Stat. 463 (43 
U.S.C. 387)), 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 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

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Religious Freedom Restoration Act (42 U.S.C. 2000bb).
    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: September 5, 2017.
Elaine Duke,
Acting Secretary of Homeland Security.
[FR Doc. 2017-19234 Filed 9-11-17; 8:45 am]
 BILLING CODE 9111-14-P