Determination Pursuant to Section 102 of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 as Amended by Section 102 of the REAL ID Act of 2005 and as Amended by the Secure Fence Act of 2006

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 physical barriers and roads in the vicinity of the international land border of the United States in Arizona. The Secretary's waiver is effective upon publication of this Notice.

DATES:

This Notice is effective on January 19, 2007.

Determination and Waiver: In section 102(a) 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), Congress provided that the Attorney General 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. Pursuant to sections 1511 and 1517 of the Homeland Security Act of 2002 (HSA), Public Law 107-296, 116 Stat. 2135, 2309, 2311 (Nov. 25, 2002) (6 U.S.C. 551, 557), the authorities of the Attorney General contained in section 102 of the IIRIRA were transferred to the Secretary of Homeland Security (Secretary).

In section 3 of the Secure Fence Act of 2006 (Secure Fence Act), Public Law 109-367), Congress amended Section 102(b) of IIRIRA to provide for the installation of fencing, barriers, roads, lighting, cameras, and sensors along five segments of the southern border of the United States, including much of the border between Arizona and Mexico. In section 102(c) of the IIRIRA, as amended by section 102 of the REAL ID Act of 2005, Public Law 109-13, Div. B, 119 Stat. 231, 302, 306 (May 11, 2005) (REAL ID Act) (8 U.S.C. 1103 note), Congress granted the Secretary “authority to waive all legal requirements such Secretary, in such Secretary's sole discretion, determines necessary to ensure the expeditious construction of barriers and roads under” section 102 of IIRIRA.

I have determined that the area in the vicinity of the United States border known as the Barry M. Goldwater Range (BMGR), as described in the Bureau of Land Management's “Legal Description of Barry M. Goldwater Range Withdrawal, AZ” (66 FR 59813 (November 30, 2001)), in southwestern Arizona, including the adjacent area to the west of the BMGR, is an area of high illegal entry. This area is also within the footprint of infrastructure provided for in Section 102(b)(1)(A)(ii) of IIRIRA as amended by the Secure Fence Act. 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 within and in the vicinity of the BMGR. In order to ensure the expeditious construction of the barriers and roads that Congress prescribed in sections 102(a) and 102(b) of the IIRIRA in the BMGR, which is an area of high illegal entry into the United States, I have determined that it is necessary to exercise the authority that was transferred to me by sections 1511 and 1517 of the HSA and that is vested in me by section 102(c) of the IIRIRA as amended by section 102 of the REAL ID Act.

Accordingly, with respect to the construction, as prescribed in sections 102(a) and 102(b) of the IIRIRA, of roads and fixed and mobile barriers within the BMGR and within five miles to the west of the BMGR (including, but not limited to, accessing the project area, 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), I hereby waive, in their entirety, 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) (Act of June 30, 1948, c. 758, 62 Stat. 1155 (33 U.S.C. 1251 et seq.)); the Wilderness Act (Pub. L. 88-577, 16 U.S.C. 1131 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 National Wildlife Refuge System Administration Act (Pub. L. 89-669, 16 U.S.C. 668dd-668ee); the Military Lands Withdrawal Act of 1999 (Pub. L. 106-65, 113 Stat. 885 (Oct. 5, 1999)); the Sikes Act (16 U.S.C. 670 et seq.); and the Administrative Procedure Act (5 U.S.C. 551 et seq.).

I reserve the authority to make further waivers from time to time under the authority granted to me by section 102(c) of the IIRIRA, as amended by section 102 of the REAL ID Act, as I may determine to be necessary to accomplish the provisions of section 102 of IIRIRA.