II 118th CONGRESS 1st Session S. 422 IN THE SENATE OF THE UNITED STATES February 14, 2023 Mr. Budd (for himself, Mr. Tillis , Mr. Risch , Mr. Crapo , Mr. Cruz , Mr. Daines , Mr. Rounds , and Mrs. Blackburn ) introduced the following bill; which was read twice and referred to the Committee on Homeland Security and Governmental Affairs A BILL To remove legal impediments preventing construction of a border barrier along the international border between the United States and Mexico, improve the construction requirements for such barrier, make previously appropriated funds available for constructing such barrier until expended, and for other purposes.

1. Short title This Act may be cited as the Build the Wall Now Act . 2. Resume construction of barriers and roads along United States and Mexico border (a) Definitions In this section: (1) Department The term Department means the Department of Homeland Security. (2) Physical barriers The term physical barriers has the meaning given such term in section 102(e) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as added by section 3(5) of this Act. (3) Secretary The term Secretary means the Secretary of Homeland Security. (4) Tactical infrastructure; technology The terms tactical infrastructure and technology have the meanings given such terms in section 102(e) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, as added by section 3(5) of this Act. (b) In general (1) Immediate resumption of border barrier construction Not later than 1 day after the date of the enactment of this Act, the Secretary shall resume all projects relating to the construction of physical barriers, tactical infrastructure, and technology along the international border between the United States and Mexico that were underway, or being planned for, prior to January 20, 2021. (2) No cancellations The Secretary may not cancel any contract for activities related to the construction of the border barrier system that was entered into on or before January 20, 2021. (3) Use of funds To carry out this section, the Secretary shall expend all funds that were appropriated or explicitly obligated for the construction of the border barrier system on or after October 1, 2016. (c) Uphold negotiated agreements The Secretary shall ensure that all agreements entered into before January 20, 2021, that were executed in writing between the Department and any State, local, or Tribal government, private citizen, or other stakeholder are honored by the Department relating to current and future construction of the border barrier system in accordance with such agreements. (d) Availability of funds Notwithstanding any other provision of law, any amount appropriated or otherwise made available during fiscal year 2018, 2019, 2020, or 2021 for any project relating to the construction of physical barriers, tactical infrastructure, and technology along the southern border shall remain available until expended. (e) Use of funds Any amounts appropriated or otherwise made available for fiscal year 2021 that remain available pursuant to subsection (d) may only be used for barriers, technology, or roads that— (1) use— (A) operationally effective designs deployed as of the date of enactment of the Consolidated Appropriations Act, 2017 ( Public Law 115–31 ), such as currently deployed steel bollard designs, that prioritize agent safety; or (B) operationally effective adaptations of such designs that help mitigate community or environmental impacts of barrier system construction, including adaptations based on consultation with jurisdictions within which barrier system will be constructed; and (2) are constructed in the highest priority locations as identified in the Border Security Improvement Plan. 3. Improving the requirements for barriers along the southern border (a) In general Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208 ; 8 U.S.C. 1103 note) is amended— (1) in subsection (a), by striking to install and all that follows and inserting (including the removal of obstacles to detection of illegal entrants) to design, test, construct, install, deploy, integrate, and operate physical barriers, tactical infrastructure, and technology in the vicinity of the United States border to achieve situational awareness and operational control of the border and deter, impede, and detect illegal activity in high traffic areas. ; (2) in subsection (b)— (A) in the subsection heading, by striking fencing and road improvements and inserting physical barriers ; (B) in paragraph (1)— (i) in subparagraph (A)— (I) by striking subsection (a) and inserting this section ; and (II) by striking roads, lighting, cameras, and sensors to gain and inserting tactical infrastructure, and technology to achieve situational awareness and ; (ii) by amending subparagraph (B) to read as follows: (B) Physical barriers and tactical infrastructure The Secretary, in carrying out this section, shall deploy along the United States border the most practical and effective physical barriers and tactical infrastructure available for achieving situational awareness and operational control of the border. ; (iii) in subparagraph (C)— (I) in clause (i)— (aa) by striking the Secretary of the Interior, the Secretary of Agriculture, States, local governments, Indian tribes, and and inserting appropriate Federal agency partners, appropriate representatives of Federal, State, Tribal, and local governments, and appropriate private ; and (bb) by striking fencing is and inserting physical barriers are ; and (II) in clause (ii)— (aa) in subclause (I), by striking or after the semicolon at the end; (bb) by amending subclause (II) to read as follows: (II) delay the transfer to the United States of the possession of property or affect the validity of any property acquisition by the United States by purchase or eminent domain, or to otherwise affect the eminent domain laws of the United States or of any State; or ; and (cc) by adding at the end the following: (III) create any right or liability for any party. ; and (iv) by striking subparagraph (D); (C) in paragraph (2)— (i) by striking Attorney General and inserting Secretary of Homeland Security ; and (ii) by striking this subsection and shall commence construction of fences and inserting this section and shall commence the construction of physical barriers ; (D) by amending paragraph (3) to read as follows: (3) Agent safety In carrying out this section, the Secretary of Homeland Security, when designing, constructing, and deploying physical barriers, tactical infrastructure, or technology, shall incorporate such safety features into such design, construction, or deployment of such physical barriers, tactical infrastructure, or technology, as the case may be, that the Secretary determines, in consultation with the labor organization representing agents of U.S. Border Patrol, are necessary to maximize the safety and effectiveness of officers or agents of the Department of Homeland Security or of any other Federal agency deployed in the vicinity of such physical barriers, tactical infrastructure, or technology. ; and (E) in paragraph (4), by striking this subsection and inserting this section ; (3) by striking subsection (c); (4) by inserting after subsection (b) the following: (c) Technology In carrying out this section, the Secretary of Homeland Security shall deploy along the United States border the most practical and effective technology available for achieving situational awareness and operational control of the border. ; and (5) by adding at the end the following: (e) Definitions In this section: (1) Advanced unattended surveillance sensors The term advanced unattended surveillance sensors means sensors that utilize an onboard computer to analyze detections in an effort to discern between vehicles, humans, and animals, and ultimately filter false positives prior to transmission. (2) High traffic areas The term high traffic areas means areas in the vicinity of the United States border that— (A) are within the responsibility of U.S. Customs and Border Protection; and (B) have significant unlawful cross-border activity, as determined by the Secretary of Homeland Security. (3) Operational control The term operational control has the meaning given such term in section 2(b) of the Secure Fence Act of 2006 ( Public Law 109–367 ; 8 U.S.C. 1701 note). (4) Physical barriers The term physical barriers includes reinforced fencing, the border barrier system, and levee walls. (5) Situational awareness The term situational awareness has the meaning given such term in section 1092(a)(7) of the National Defense Authorization Act for Fiscal Year 2017 ( Public Law 114–328 ; 6 U.S.C. 223(a)(7) ). (6) Tactical infrastructure The term tactical infrastructure includes boat ramps, access gates, checkpoints, lighting, and roads. (7) Technology The term technology means border surveillance and detection technology, including— (A) tower-based surveillance technology; (B) deployable, lighter-than-air ground surveillance equipment; (C) Vehicle and Dismount Exploitation Radars (VADER); (D) 3-dimensional, seismic acoustic detection and ranging border tunneling detection technology; (E) advanced unattended surveillance sensors; (F) mobile vehicle-mounted and man-portable surveillance capabilities; (G) unmanned aircraft systems; and (H) other border detection, communication, and surveillance technology. (8) Unmanned aircraft system The term unmanned aircraft system has the meaning given such term in section 44801(12) of title 49, United States Code. . (b) Existing waivers not affected A waiver issued by the Secretary of Homeland Security pursuant to section 102(c) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208 ; 8 U.S.C. 1103 note) that was published in the Federal Register before the date of the enactment of this Act shall not be affected by the amendment made by subsection (a). 4. Recodifying the Secretary of Homeland Security's waiver authority; adding previously waived legal requirements (a) In general Section 103 of the Immigration and Nationality Act ( 8 U.S.C. 1103 ) is amended by adding at the end the following: (h) Waiver authority (1) In general Notwithstanding any other provision of law, the Secretary of Homeland Security shall have the authority to waive all legal requirements that the Secretary determines necessary to ensure the expeditious design, testing, construction, installation, deployment, integration, and operation of the physical barriers, tactical infrastructure, and technology under this section and section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208 ; 8 U.S.C. 1103 note). Such waiver authority shall also apply with respect to any maintenance carried out on such physical barriers, tactical infrastructure, or technology. Any such decision by the Secretary shall be effective upon publication in the Federal Register. (2) Notification Not later than 7 days after the date on which the Secretary of Homeland Security exercises the waiver authority under paragraph (1), the Secretary shall notify the Committee on Homeland Security of the House of Representatives and the Committee on Homeland Security and Governmental Affairs of the Senate of such waiver. (3) Federal court review (A) In general The district courts of the United States shall have exclusive jurisdiction to hear all causes or claims arising from any action undertaken, or any decision made, by the Secretary of Homeland Security pursuant to paragraph (1). A cause of action or claim may only be brought alleging a violation of the Constitution of the United States. The court shall not have jurisdiction to hear any claim not specified in this subparagraph. (B) Time for filing of complaint Any cause or claim brought pursuant to subparagraph (A) shall be filed not later than 60 days after the date of the action or decision made by the Secretary of Homeland Security. A claim shall be barred unless it is filed within the time specified. (C) Ability to seek appellate review An interlocutory or final judgment, decree, or order of the district court may be reviewed only upon petition for a writ of certiorari to the Supreme Court of the United States. (4) Previously waived legal requirements (A) In general Any project relating to the construction of physical barriers, tactical infrastructure, and technology along the international border between the United States and Mexico shall be exempt from any law or regulation referred to in subparagraph (B). (B) Elements The laws and regulations referred to in this subparagraph are— (i) an Act to facilitate the work of the Forest Service ( Public Law 87–869 ); (ii) subchapter II of chapter 5 and chapter 7 of title 5, United States Code (commonly known as the Administrative Procedure Act ); (iii) the Arizona Desert Wilderness Act ( 6 U.S.C. 460ddd et seq. ); (iv) the Arizona-Idaho Conservation Act of 1988 ( Public Law 100–696 ); (v) the Act of June 8, 1940 ( 16 U.S.C. 668 et seq. ) (commonly known as the Bald and Golden Eagle Protection Act ); (vi) the Clean Air Act ( 42 U.S.C. 7401 et seq. ); (vii) the Federal Water Pollution Control Act ( 33 U.S.C. 1151 et seq. ) (commonly known as the Clean Water Act ); (viii) the Coastal Zone Management Act ( 16 U.S.C. 1451 et seq. ); (ix) the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 ( 42 U.S.C. 9601 et seq. ); (x) the Endangered Species Act of 1973 ( 16 U.S.C. 1531 et seq. ); (xi) the Farmland Protection Policy Act ( 7 U.S.C. 4201 et seq. ); (xii) the Federal Cave Resources Protection Act of 1988 ( 16 U.S.C. 4301 et seq. ); (xiii) chapter 63 of title 31, United States Code (originally enacted as the Federal Grants and Cooperative Agreements Act of 1977 ); (xiv) the Federal Land Policy and Management Act of 1976 ( 43 U.S.C. 1701 et seq. ); (xv) the Fish and Wildlife Coordination Act ( 16 U.S.C. 662 et seq. ); (xvi) the Migratory Bird Conservation Act of 1929 ( 16 U.S.C. 715 et seq. ); (xvii) the Migratory Bird Treaty Act ( 16 U.S.C. 703 et seq. ); (xviii) the Military Lands Withdrawal Act of 1999 (title XXX of Public Law 106–65 ); (xix) the Act of June 12, 1960 ( Public Law 86–517 ; 16 U.S.C. 528 et seq. ) (commonly known as the Multiple-Use and Sustained-Yield Act of 1960 ); (xx) the National Environmental Policy Act of 1969 ( 42 U.S.C. 4321 et seq. ); (xxi) the National Fish and Wildlife Act of 1956 ( 16 U.S.C. 742a et seq. ); (xxii) the National Forest Management Act of 1976 ( 16 U.S.C. 472a et seq. ); (xxiii) the National Historic Preservation Act ( 16 U.S.C. 470 et seq. ); (xxiv) the National Parks and Recreation Act of 1978 ( Public Law 95–625 ); (xxv) the National Trails System Act ( 16 U.S.C. 1241 et seq. ); (xxvi) the National Wildlife Refuge System Administration Act of 1966 ( 16 U.S.C. 668dd et seq. ); (xxvii) the Native American Graves Protection and Repatriation Act ( 25 U.S.C. 3001 et seq. ); (xxviii) the Noise Control Act of 1972 ( 42 U.S.C. 4901 et seq. ); (xxix) the Otay Mountain Wilderness Act of 1999 ( Public Law 106–145 ); (xxx) subtitle D of title VI of the Omnibus Public Land Management Act of 2009 ( 16 U.S.C. 470aaa et seq. ) (commonly known as the Paleontological Resources Preservation Act ); (xxxi) section 10 of the Act of August 4, 1939 ( 43 U.S.C. 387 ) (commonly known as the Reclamation Project Act of 1939 ); (xxxii) the Act of March 3, 1899 (30 Stat. 1121, chapter 425; ( 33 U.S.C. 403 et seq. ) (commonly known as the Rivers and Harbors Act of 1899 ); (xxxiii) the Safe Drinking Water Act ( 42 U.S.C. 300f et seq. ); (xxxiv) the Sikes Act ( 16 U.S.C. 670 et seq. ); (xxxv) the Small Business Act ( 15 U.S.C. 631 et seq. ); (xxxvi) the Solid Waste Disposal Act ( 42 U.S.C. 6901 et seq. ) (commonly known as the Resource Conservation and Recovery Act of 1976 ); (xxxvii) the Wild and Scenic Rivers Act ( 16 U.S.C. 1271 et seq. ); (xxxviii) the Act of December 15, 1971 ( 16 U.S.C. 1331 et seq. ) (commonly known as the Wild Free-Roaming Horses and Burros Act of 1971 ); (xxxix) the Wilderness Act ( 16 U.S.C. 1131 et seq. ); (xl) sections 2304, 2304c, 2305, 2505a, and 2306a of title 10, United States Code; (xli) section 550 of title 40, United States Code; (xlii) title 41, United States Code; (xliii) sections 100101(a), 100751(a), and 102101 of title 54, United States Code; (xliv) chapters 1003, 1005, 1007, 1009, 1021, 3125, 3201, and 3203 of title 54, United States Code; (xlv) division A of subtitle III of title 54, United States Code; (xlvi) part 125 of title 13, Code of Federal Regulations; and (xlvii) sections 16.504, 16.505, 17.205, 17.207, 22.404, 22.404–5, and 28.102–1 of title 48, Code of Federal Regulations. (5) Definitions In this subsection, the terms physical barriers , tactical infrastructure , and technology have the meanings given such terms in section 102(e) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (division C of Public Law 104–208 ; 8 U.S.C. 1103 note). . (b) Clerical amendment The table of contents of the Immigration and Nationality Act ( 8 U.S.C. 1101 et seq. ) is amended by striking the item relating to section 103 and inserting the following: Sec. 103. Powers and duties of the Secretary, the Under Secretary, and the Attorney General. . 5. Prohibition against use of funds to implement or enforce Presidential Proclamation 10142 No funds, resources, or fees made available to the Secretary of Homeland Security, or to any other official of any Federal agency by any Act of Congress for any fiscal year, may be used to implement or enforce Presidential Proclamation 10142 of January 20, 2021 (86 Fed. Reg. 7225).