What This Bill Does
This bill tells the Department of Homeland Security to resume border barrier construction projects that were planned or underway before January 20, 2021. It makes previously appropriated money available to spend on these projects and changes the legal requirements that apply to border barrier construction.
##
Who It Affects
- The Secretary of Homeland Security and the Department of Homeland Security
- States, local governments and Tribal governments that have written agreements about border barrier construction
- Private citizens and other stakeholders with written agreements about border barrier construction
- Federal agencies involved in border barrier projects
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Key Provisions
- The Secretary of Homeland Security must resume all border barrier construction projects within one day of the bill becoming law that were underway or planned before January 20, 2021. (Sec. 2(b)(1))
- The Secretary cannot cancel any contracts for border barrier construction work that were signed on or before January 20, 2021. (Sec. 2(b)(2))
- The Secretary must spend all money that was appropriated or set aside for border barrier construction on or after October 1, 2016. (Sec. 2(b)(3))
- The Secretary of Homeland Security can waive any legal requirements needed to design, test, construct, install, deploy, integrate and operate physical barriers, tactical infrastructure and technology for border security. (Sec. 4(a))
- Only federal district courts can hear claims that challenge the Secretary's waiver decisions, and only claims based on violations of the U.S. Constitution. People must file such claims within 60 days. (Sec. 4(a)(3))
- Border barrier projects are exempt from compliance with 47 specific federal laws and regulations, including environmental protection laws, historic preservation laws and administrative procedure laws. (Sec. 4(a)(4))
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What Changes
If this becomes law, the Department of Homeland Security will be required to immediately restart border barrier construction. All money previously appropriated for this purpose will stay available to spend until used up. The Secretary gains power to waive most federal laws that might normally apply to these projects. This means environmental reviews, historic preservation reviews, administrative procedures and other legal requirements would not apply to border barrier construction.
##
Important Definitions
The bill defines the following terms explicitly:
- **Physical barriers**: Reinforced fencing, the border barrier system and levee walls (Sec. 3(5))
- **Tactical infrastructure**: Boat ramps, access gates, checkpoints, lighting and roads (Sec. 3(5))
- **Technology**: Border surveillance and detection equipment including tower-based surveillance, unmanned aircraft systems, radar systems and advanced sensors (Sec. 3(5))
- **Operational control**: Not defined in this bill text; references definition in the Secure Fence Act of 2006 (Sec. 3(5))
- **Situational awareness**: Not defined in this bill text; references definition in the National Defense Authorization Act for Fiscal Year 2017 (Sec. 3(5))
- **Advanced unattended surveillance sensors**: Sensors with onboard computers that analyze detections to distinguish between vehicles, humans and animals, filtering out false signals before sending information (Sec. 3(5))
- **High traffic areas**: Areas along the U.S. border under U.S. Customs and Border Protection responsibility that have significant unlawful cross-border activity, as determined by the Secretary (Sec. 3(5))
##
Effective Date
The bill requires the Secretary of Homeland Security to resume border barrier construction projects not later than one day after the bill becomes law. (Sec. 2(b)(1))
I
118TH CONGRESS
1ST SESSION
H. R. 989
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.
IN THE HOUSE OF REPRESENTATIVES
FEBRUARY 14, 2023
Mr. BANKS (for himself, Mr. GOODEN of Texas, Mr. BABIN, Mrs. LUNA, Mr.
POSEY, Mr. CRENSHAW, Mr. HUNT, Mr. DUNCAN, Mr. BISHOP of North
Carolina, Mrs. MILLER-MEEKS, Ms. VAN DUYNE, Mr. VAN DREW, Mrs.
MILLER of Illinois, Mr. SANTOS, and Mr. BUCHANAN) introduced the fol-
lowing bill; which was referred to the Committee on Homeland Security,
and in addition to the Committees on Natural Resources, Energy and
Commerce, Transportation and Infrastructure, Armed Services, Agri-
culture, Small Business, the Judiciary, and Oversight and Accountability,
for a period to be subsequently determined by the Speaker, in each case
for consideration of such provisions as fall within the jurisdiction of the
committee concerned
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 appro-
priated funds available for constructing such barrier until
expended, and for other purposes.
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•HR 989 IH
Be it enacted by the Senate and House of Representa-
1
tives of the United States of America in Congress assembled,
2
SECTION 1. SHORT TITLE.
3
This Act may be cited as the ‘‘Build the Wall Now
4
Act’’.
5
SEC. 2. RESUME CONSTRUCTION OF BARRIERS AND ROADS
6
ALONG UNITED STATES AND MEXICO BOR-
7
DER.
8
(a) DEFINITIONS.—In this section:
9
(1) DEPARTMENT.—The term ‘‘Department’’
10
means the Department of Homeland Security.
11
(2) PHYSICAL BARRIERS.—The term ‘‘physical
12
barriers’’ has the meaning given such term in sec-
13
tion 102(e) of the Illegal Immigration Reform and
14
Immigrant Responsibility Act of 1996, as added by
15
section 3(5) of this Act.
16
(3) SECRETARY.—The term ‘‘Secretary’’ means
17
the Secretary of Homeland Security.
18
(4)
TACTICAL
INFRASTRUCTURE;
TECH-
19
NOLOGY.—The terms ‘‘tactical infrastructure’’ and
20
‘‘technology’’ have the meanings given such terms in
21
section 102(e) of the Illegal Immigration Reform
22
and Immigrant Responsibility Act of 1996, as added
23
by section 3(5) of this Act.
24
(b) IN GENERAL.—
25
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•HR 989 IH
(1) IMMEDIATE RESUMPTION OF BORDER BAR-
1
RIER CONSTRUCTION.—Not later than 1 day after
2
the date of the enactment of this Act, the Secretary
3
shall resume all projects relating to the construction
4
of physical barriers, tactical infrastructure, and
5
technology along the international border between
6
the United States and Mexico that were underway,
7
or being planned for, prior to January 20, 2021.
8
(2) NO CANCELLATIONS.—The Secretary may
9
not cancel any contract for activities related to the
10
construction of the border barrier system that was
11
entered into on or before January 20, 2021.
12
(3) USE OF FUNDS.—To carry out this section,
13
the Secretary shall expend all funds that were ap-
14
propriated or explicitly obligated for the construction
15
of the border barrier system on or after October 1,
16
2016.
17
(c) UPHOLD NEGOTIATED AGREEMENTS.—The Sec-
18
retary shall ensure that all agreements entered into before
19
January 20, 2021, that were executed in writing between
20
the Department and any State, local, or Tribal govern-
21
ment, private citizen, or other stakeholder are honored by
22
the Department relating to current and future construc-
23
tion of the border barrier system in accordance with such
24
agreements.
25
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•HR 989 IH
(d) AVAILABILITY OF FUNDS.—Notwithstanding any
1
other provision of law, any amount appropriated or other-
2
wise made available during fiscal year 2018, 2019, 2020,
3
or 2021 for any project relating to the construction of
4
physical barriers, tactical infrastructure, and technology
5
along the southern border shall remain available until ex-
6
pended.
7
(e) USE OF FUNDS.—Any amounts appropriated or
8
otherwise made available for fiscal year 2021 that remain
9
available pursuant to subsection (d) may only be used for
10
barriers, technology, or roads that—
11
(1) use—
12
(A) operationally effective designs deployed
13
as of the date of enactment of the Consolidated
14
Appropriations Act, 2017 (Public Law 115–31),
15
such as currently deployed steel bollard designs,
16
that prioritize agent safety; or
17
(B) operationally effective adaptations of
18
such designs that help mitigate community or
19
environmental impacts of barrier system con-
20
struction, including adaptations based on con-
21
sultation with jurisdictions within which barrier
22
system will be constructed; and
23
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•HR 989 IH
(2) are constructed in the highest priority loca-
1
tions as identified in the Border Security Improve-
2
ment Plan.
3
SEC. 3. IMPROVING THE REQUIREMENTS FOR BARRIERS
4
ALONG THE SOUTHERN BORDER.
5
(a) IN GENERAL.—Section 102 of the Illegal Immi-
6
gration Reform and Immigrant Responsibility Act of 1996
7
(division C of Public Law 104–208; 8 U.S.C. 1103 note)
8
is amended—
9
(1) in subsection (a), by striking ‘‘to install’’
10
and all that follows and inserting ‘‘(including the re-
11
moval of obstacles to detection of illegal entrants) to
12
design, test, construct, install, deploy, integrate, and
13
operate physical barriers, tactical infrastructure, and
14
technology in the vicinity of the United States bor-
15
der to achieve situational awareness and operational
16
control of the border and deter, impede, and detect
17
illegal activity in high traffic areas.’’;
18
(2) in subsection (b)—
19
(A) in the subsection heading, by striking
20
‘‘FENCING AND ROAD IMPROVEMENTS’’ and in-
21
serting ‘‘PHYSICAL BARRIERS’’;
22
(B) in paragraph (1)—
23
(i) in subparagraph (A)—
24
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•HR 989 IH
(I) by striking ‘‘subsection (a)’’
1
and inserting ‘‘this section’’; and
2
(II) by striking ‘‘roads, lighting,
3
cameras, and sensors to gain’’ and in-
4
serting ‘‘tactical infrastructure, and
5
technology
to
achieve
situational
6
awareness and’’;
7
(ii) by amending subparagraph (B) to
8
read as follows:
9
‘‘(B) PHYSICAL BARRIERS AND TACTICAL
10
INFRASTRUCTURE.—The Secretary, in carrying
11
out this section, shall deploy along the United
12
States border the most practical and effective
13
physical barriers and tactical infrastructure
14
available for achieving situational awareness
15
and operational control of the border.’’;
16
(iii) in subparagraph (C)—
17
(I) in clause (i)—
18
(aa) by striking ‘‘the Sec-
19
retary of the Interior, the Sec-
20
retary of Agriculture, States,
21
local governments, Indian tribes,
22
and’’ and inserting ‘‘appropriate
23
Federal agency partners, appro-
24
priate representatives of Federal,
25
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•HR 989 IH
State, Tribal, and local govern-
1
ments, and appropriate private’’;
2
and
3
(bb) by striking ‘‘fencing is’’
4
and inserting ‘‘physical barriers
5
are’’; and
6
(II) in clause (ii)—
7
(aa) in subclause (I), by
8
striking ‘‘or’’ after the semicolon
9
at the end;
10
(bb) by amending subclause
11
(II) to read as follows:
12
‘‘(II) delay the transfer to the
13
United States of the possession of
14
property or affect the validity of any
15
property acquisition by the United
16
States by purchase or eminent do-
17
main, or to otherwise affect the emi-
18
nent domain laws of the United States
19
or of any State; or’’; and
20
(cc) by adding at the end
21
the following:
22
‘‘(III) create any right or liability
23
for any party.’’; and
24
(iv) by striking subparagraph (D);
25
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•HR 989 IH
(C) in paragraph (2)—
1
(i) by striking ‘‘Attorney General’’
2
and inserting ‘‘Secretary of Homeland Se-
3
curity’’; and
4
(ii) by striking ‘‘this subsection and
5
shall commence construction of fences’’
6
and inserting ‘‘this section and shall com-
7
mence the construction of physical bar-
8
riers’’;
9
(D) by amending paragraph (3) to read as
10
follows:
11
‘‘(3) AGENT SAFETY.—In carrying out this sec-
12
tion, the Secretary of Homeland Security, when de-
13
signing, constructing, and deploying physical bar-
14
riers, tactical infrastructure, or technology, shall in-
15
corporate such safety features into such design, con-
16
struction, or deployment of such physical barriers,
17
tactical infrastructure, or technology, as the case
18
may be, that the Secretary determines, in consulta-
19
tion with the labor organization representing agents
20
of U.S. Border Patrol, are necessary to maximize
21
the safety and effectiveness of officers or agents of
22
the Department of Homeland Security or of any
23
other Federal agency deployed in the vicinity of such
24
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•HR 989 IH
physical barriers, tactical infrastructure, or tech-
1
nology.’’; and
2
(E) in paragraph (4), by striking ‘‘this
3
subsection’’ and inserting ‘‘this section’’;
4
(3) by striking subsection (c);
5
(4) by inserting after subsection (b) the fol-
6
lowing:
7
‘‘(c) TECHNOLOGY.—In carrying out this section, the
8
Secretary of Homeland Security shall deploy along the
9
United States border the most practical and effective tech-
10
nology available for achieving situational awareness and
11
operational control of the border.’’; and
12
(5) by adding at the end the following:
13
‘‘(e) DEFINITIONS.—In this section:
14
‘‘(1) ADVANCED UNATTENDED SURVEILLANCE
15
SENSORS.—The term ‘advanced unattended surveil-
16
lance sensors’ means sensors that utilize an onboard
17
computer to analyze detections in an effort to dis-
18
cern between vehicles, humans, and animals, and ul-
19
timately filter false positives prior to transmission.
20
‘‘(2) HIGH TRAFFIC AREAS.—The term ‘high
21
traffic areas’ means areas in the vicinity of the
22
United States border that—
23
‘‘(A) are within the responsibility of U.S.
24
Customs and Border Protection; and
25
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•HR 989 IH
‘‘(B) have significant unlawful cross-border
1
activity, as determined by the Secretary of
2
Homeland Security.
3
‘‘(3) OPERATIONAL CONTROL.—The term ‘oper-
4
ational control’ has the meaning given such term in
5
section 2(b) of the Secure Fence Act of 2006 (Public
6
Law 109–367; 8 U.S.C. 1701 note).
7
‘‘(4) PHYSICAL BARRIERS.—The term ‘physical
8
barriers’ includes reinforced fencing, the border bar-
9
rier system, and levee walls.
10
‘‘(5) SITUATIONAL AWARENESS.—The term ‘sit-
11
uational awareness’ has the meaning given such
12
term in section 1092(a)(7) of the National Defense
13
Authorization Act for Fiscal Year 2017 (Public Law
14
114–328; 6 U.S.C. 223(a)(7)).
15
‘‘(6) TACTICAL
INFRASTRUCTURE.—The term
16
‘tactical infrastructure’ includes boat ramps, access
17
gates, checkpoints, lighting, and roads.
18
‘‘(7) TECHNOLOGY.—The term ‘technology’
19
means border surveillance and detection technology,
20
including—
21
‘‘(A) tower-based surveillance technology;
22
‘‘(B) deployable, lighter-than-air ground
23
surveillance equipment;
24
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•HR 989 IH
‘‘(C) Vehicle and Dismount Exploitation
1
Radars (VADER);
2
‘‘(D) 3-dimensional, seismic acoustic detec-
3
tion and ranging border tunneling detection
4
technology;
5
‘‘(E) advanced unattended surveillance
6
sensors;
7
‘‘(F) mobile vehicle-mounted and man-
8
portable surveillance capabilities;
9
‘‘(G) unmanned aircraft systems; and
10
‘‘(H) other border detection, communica-
11
tion, and surveillance technology.
12
‘‘(8) UNMANNED AIRCRAFT SYSTEM.—The term
13
‘unmanned aircraft system’ has the meaning given
14
such term in section 44801(12) of title 49, United
15
States Code.’’.
16
(b) EXISTING WAIVERS NOT AFFECTED.—A waiver
17
issued by the Secretary of Homeland Security pursuant
18
to section 102(c) of the Illegal Immigration Reform and
19
Immigrant Responsibility Act of 1996 (division C of Pub-
20
lic Law 104–208; 8 U.S.C. 1103 note) that was published
21
in the Federal Register before the date of the enactment
22
of this Act shall not be affected by the amendment made
23
by subsection (a).
24
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•HR 989 IH
SEC. 4. RECODIFYING THE SECRETARY OF HOMELAND SE-
1
CURITY’S WAIVER AUTHORITY; ADDING PRE-
2
VIOUSLY WAIVED LEGAL REQUIREMENTS.
3
(a) IN GENERAL.—Section 103 of the Immigration
4
and Nationality Act (8 U.S.C. 1103) is amended by add-
5
ing at the end the following:
6
‘‘(h) WAIVER AUTHORITY.—
7
‘‘(1) IN GENERAL.—Notwithstanding any other
8
provision of law, the Secretary of Homeland Security
9
shall have the authority to waive all legal require-
10
ments that the Secretary determines necessary to
11
ensure the expeditious design, testing, construction,
12
installation, deployment, integration, and operation
13
of the physical barriers, tactical infrastructure, and
14
technology under this section and section 102 of the
15
Illegal Immigration Reform and Immigrant Respon-
16
sibility Act of 1996 (division C of Public Law 104–
17
208; 8 U.S.C. 1103 note). Such waiver authority
18
shall also apply with respect to any maintenance car-
19
ried out on such physical barriers, tactical infra-
20
structure, or technology. Any such decision
[Text truncated for display. Full text available on Congress.gov.]