Worksite Enforcement and Critical Infrastructure

Critical infrastructure protection is a world unto its own, much like the byzantine world of immigration, and it intersects with immigration enforcement in important ways.

Recently I read a Department of Homeland Security (DHS) Office of Inspector General (OIG) audit report touching on the Immigration and Customs Enforcement (ICE) worksite inspection program that made me feel disgruntled, something that readers of my scribbles for the Center will know from my recent blog on the subject. I touched on many, although not all, of my dissatisfactions in that blog, including that it shed no light on the overall effectiveness of the present ICE worksite enforcement strategy.

I’m sure OIG officials would respond that it wasn’t intended to, since it only addressed the paperwork inspections and fine processes used by ICE. My retort to this imaginary dialogue would be that any audit that is so narrow it provides no significant information for DHS leaders, Congress, or the pubic on ICE’s worksite efforts — a direction that was changed in 2009 by adoption of paperwork inspections in lieu of worksite operations, among other things — isn’t worth conducting.

The other two prongs of ICE’s tripartite strategy allegedly include vigorous prosecution of egregious employers (we don’t know how many have been prosecuted because the OIG report didn’t tell us) and protection of critical infrastructure facilities through worksite inspections designed to ensure only authorized workers are employed in these facilities.

Unfortunately, the OIG report also said nothing about how many of ICE’s 9,000-plus inspections since 2009 were conducted at critical infrastructure sites, which makes me wonder why it went on at such length describing critical infrastructure sectors.

How closely does ICE actually coordinate its efforts with the officials responsible for infrastructure protection? Those officials also work for DHS, within the National Protection and Programs Directorate (NPPD).

By way of example, recent congressional testimony on the chemical sector by a Government Accountability Office (GAO) official describes efforts by NPPD in that portion of infrastructure protection. It appears that the chemical industry is so widespread and unruly that NPPD hasn’t even been able to identify all the plants under its jurisdiction and authority, one example being the ammonium nitrate storage plant in West, Texas, which erupted into flames in April of last year, causing many deaths and injuries and significant destruction. (Ammonium nitrate is a key ingredient in extremely potent “fertilizer” bombs used by terrorists.) The testimony refers to “personnel surety” as being a key measure of protection of such facilities, but makes no reference to any inspection of the workforce of any chemical plants.

The conforming regulations in 6 CFR 27.250 make clear that “authorized” officials may conduct inspections of chemical-producing facilities with 24 hours advance notice, or at any time without notice as necessary to protect the public safety.

This seems appropriate — but it is not clear whether “authorized” officials include ICE agents or if ICE would deem it appropriate to suspend its usual regimen of paperwork inspections in favor of physical plant operations to remove unauthorized workers in such sensitive facilities. What is more, the norm in ICE paperwork inspections is to provide employers with three days advance notice.

Finally, I located an electronic slide presentation by a NPPD official relating to protection and regulation of the chemical industry. The second slide, referring to personnel surety, states that “[A]ffected individuals at CFATS [Chemical Facility Anti-Terrorism Standards] covered chemical facilities must undergo four types of background checks: (1) identity; (2) legal authorization to work; (3) criminal history; and (4) check for terrorist ties (i.e., check against the Terrorist Screening Database (TSDB)).” (Emphasis added.)

The slide goes on to state that the facility itself is required to conduct the first three types of checks, which of course includes the legal authorization to work. This seems to suggest that covered facilities are required to use E-verify, but I have found nothing in the CFRs in either Title 6 or Title 8 (relating to aliens and nationality) that makes this overt and unambiguous.

In sum, I have been unable to determine, on either side of the NPPD/ICE equation, whether they have considered coordinating measures and operations, and worked them out in advance, as would seem prudent.

My preliminary conclusion is that they have a passing acquaintance, rather like fellows who know one another well enough to nod when they cross in the street, but not much beyond that.

I haven’t been able to find any concrete proof that ICE in fact works hand-in-glove with NPPD in determining which facilities — or even what types of facilities — merit priority examination, or whether ICE agents accompany NPPD officers when they are conducting inspections of key facilities. There certainly appear to be some gaps in the regulatory structure and protocols and possibly in the agencies’ expectations and assumptions.

This seems like significant unfinished business and suggests that the third prong of ICE’s worksite enforcement strategy is neither robust nor well structured. Regrettably, we can’t discern more with any certainty because it hasn’t been given the oversight it deserves from the Inspector General’s office.

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