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

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.

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.

DATES:

This Notice is effective on April 3, 2008.

Determination and Waiver:

I have a mandate to achieve and maintain operational control of the borders of the United States. Public Law 109-367, § 2, 120 Stat. 2638, 8 U.S.C. 1701 note. Congress has provided me with a number of authorities necessary to accomplish this mandate. One of these authorities is found at section 102(c) of the 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, Section 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 fencing, barriers, roads, lighting, cameras, and sensors on not less than 700 miles of the southwest border, including priority miles of fencing that must be completed by December 2008. Finally, in section 102(c) of the IIRIRA, Congress granted to me 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.

I determine that the areas in the vicinity of the United States border described on the attached document, which is incorporated and made a part hereof, are areas of high illegal entry (collectively “Project Areas”). These Project Areas are located in the States of California, Arizona, New Mexico, and Texas. In order to deter illegal crossings in the Project Areas, there is presently a need to construct fixed and mobile barriers (such as fencing, vehicle barriers, towers, sensors, cameras, and other surveillance, communication, and detection equipment) and roads in the vicinity of the border of the United States. In order to ensure the expeditious construction of the barriers and roads that Congress prescribed in the IIRIRA in the Project Areas, which are areas of high illegal entry into the United States, 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, I hereby waive in their entirety, with respect to the construction of roads and fixed and mobile 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 fences, roads, supporting elements, drainage, erosion controls, safety features, surveillance, communication, and detection equipment of all types, radar and radio towers, and lighting) in the Project Areas, all federal, state, or other laws, regulations and legal requirements of, deriving from, or related to the subject of, the following laws, 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) (16 U.S.C. 470

et seq.

)), the Migratory Bird Treaty Act (16 U.S.C. 703

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 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, 16 U.S.C. 469

et seq.

), the Antiquities Act (16 U.S.C. 431

et seq.

), the Historic Sites, Buildings, and Antiquities Act (16 U.S.C. 461

et seq.

), the Wild and Scenic Rivers Act (Pub. L. 90-542, 16 U.S.C. 1281

et seq.

), 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 Wilderness Act (Pub. L. 88-577, 16 U.S.C. 1131

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), the 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 Otay Mountain Wilderness Act of 1999 (Pub. L. 106-145), Sections 102(29) and 103 of Title I of the California Desert Protection Act (Pub. L. 103-433), 50 Stat. 1827, the National Park Service Organic Act (Pub. L. 64-235, 16 U.S.C. 1, 2-4), the National Park Service General Authorities Act (Pub. L. 91-383, 16 U.S.C. 1a-1

et seq.

), Sections 401(7), 403, and 404 of the National Parks and Recreation Act of 1978 (Pub. L. 95-625), Sections 301(a)-(f) of the Arizona Desert Wilderness Act (Pub. L. 101-628), 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), the Religious Freedom Restoration Act (42 U.S.C. 2000bb), the National Forest Management Act of 1976 (16 U.S.C. 1600

et seq.

), and the Multiple Use and Sustained Yield Act of 1960 (16 U.S.C. 528-531).

This waiver does not supersede, supplement, or in any way modify the previous waivers published in the

Federal Register

on September 22, 2005 (70 FR 55622), January 19, 2007 (72 FR

2535), and October 26, 2007 (72 FR 60870).

I reserve the authority to make further waivers from time to time as I may determine to be necessary to accomplish the provisions of section 102 of the IIRIRA, as amended.

Dated: April 1, 2008.

Michael Chertoff,

Secretary.

[FR Doc. 08-1095 Filed 4-1-08; 2:03 pm]

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