Energy security legislation proposed by Sen. Jeff Bingaman (D-NM) would give the energy secretary and attorney general widespread authority to direct energy companies to conduct extensive criminal background checks on persons who operate “critical energy infrastructure facilities” to determine if they are a security threat.

Under the proposed bill, energy companies would be required to fingerprint employees in sensitive positions — those that have access to critical equipment and “sensitive” information — and then submit the fingerprints to the U.S. Attorney General’s Office for identification and criminal history checks. The draft legislation calls for the Department of Energy (DOE) to issue regulations to identify the positions that would be subject to criminal history checks, establish the conditions under which criminal history information would be used, and limit the disclosure of such information.

The proposed measure would also seek to deter companies from making hasty decisions based on arrests that are “more than one year old for which there is no information of the disposition of the case,” or arrests in which the charge was dismissed or the accused acquitted. Employees also would have the right to “complete, correct and explain” information contained in their background checks.

Bingaman plans to offer his bill as an amendment in the nature of a substitute to the Bush administration’s draft bill (S. 1480), which focuses on the security of dams. Bingaman’s measure would extend this protection to all “critical energy infrastructure” facilities, including generation or transmission of electrical energy; and the production, refining, transportation and storage of petroleum, natural gas, or petroleum products. In short, any facility in which the “incapacity or destruction…would have a debilitating impact on the defense or economic security of the United States.”

The Senate Energy and Natural Resources Committee, over which Bingaman is chairman, plans to begin marking up the energy security bill on Thursday.

Bingaman’s draft also would permit the energy secretary to contract with state or local law enforcement authorities to protect property and facilities that are under the control of a power marketing administration. Authorities would carry firearms, execute and serve warrants, make arrests without warrants if they suspect a felony or misdemeanor is being committed in their presence, and conduct search and seizures without warrants. The proposal also would allow the energy secretary to authorize law enforcement officials with federal agencies to enforce federal laws and regulations that govern the property and facilities owned, leased or otherwise under the control of a power marketing administration.

The bill further says energy companies that join together to share information related to security issues would not necessarily trigger antitrust concerns. To the extent companies “gather and analyze information to better understand security problems related to critical energy infrastructure facilities,” and “communicate or disclose information to help avoid or correct a security problem,” they would be exempt from antitrust review.

Specifically, the Bingaman proposal requires the energy secretary to establish the “standards and procedures” for energy companies to develop and carry out voluntary agreements to assist in collecting and communicating security-related information. The voluntary agreement may not be carried out unless approved by the attorney general after consulting with the Federal Trade Commission, the bill said.

Provided there is no injury to competition, energy companies that take action under authorized voluntary agreements will be shielded from “any civil or criminal action brought under the antitrust laws,” according to the measure.

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