Key questions about the infrastructure security legislation that I believe need further clarification and which I'm raising with both INGAA and committee staff.


Section 4   Background checks:

section (a) Secretary of Energy, in cooperation with the Attorney General, shall establish a program to enable entities operating critical energy infrastructure facilities to --

	
Enable is problematic.  The bill is silent on penalties for those who could take advantage of the system, but choose not to.  Further, it offers no liability protection for those who do take advantage of the background check system.  It offers us a service, but no positive incentives to take advantage of it.

section (b) Secretary of Energy shall issue reg's -

(1) identifying the positions subject to background checks; (2) establishing the conditions for the use of information and (3) providing each individual subject to fingerprinting under the section with the right to complete, correct, and explain information contained in the criminal history prior to any final adverse determination.


I read (3) as potentially establishing problematic, drawn out, and potentially costly legal battles.


section (c)  DOE recovers full cost of the program through fees charged to submitting entities.


How much will they charge us?


section (e) Definitions   subsection (2) gives a two-part definition of sensitive position:

The term sensitive position means a position in which an employee has access to --

(A) critical equipment, the incapacity or destruction of which would have a debilitating impact on the operation of a critical energy infrastructure facility; or

(B) sensitive information, the disclosure of which would compromise the security of a critical energy infrastructure facility


I believe definition B needs work.  That could apply far more broadly, even to lobbyists and gov't affairs people, than simply to those who work day-to-day with infrastructure.


Section 5 provides relief from FOIA and other public disclosure requirements that would reveal sensitive information.


Section 6 provides a process for getting anti-trust protections when industry works together on infrastucture protection initiatives.