S T A T E   O F   N E W   Y O R K
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                                  8545

                       2011-2012 Regular Sessions

                          I N  A S S E M B L Y

                              July 20, 2011
                               ___________

Introduced  by M. of A. ORTIZ -- read once and referred to the Committee
  on Governmental Operations

AN ACT to amend the executive law, in relation to  directing  the  state
  office  of homeland security to conduct a review and analysis of secu-
  rity measures at rail yards

  THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. The executive law is amended by adding a new section 718 to
read as follows:
  S 718. PROTECTION OF CRITICAL INFRASTRUCTURE; RAIL YARDS. 1.  NOTWITH-
STANDING  ANY  OTHER PROVISION OF LAW AND SUBJECT TO THE AVAILABILITY OF
AN APPROPRIATION, THE COMMISSIONER SHALL CONDUCT A REVIEW  AND  ANALYSIS
OF MEASURES BEING TAKEN BY THE OWNERS AND OPERATORS OF RAIL YARDS FACIL-
ITIES TO PROTECT THE SECURITY OF CRITICAL INFRASTRUCTURE RELATED TO SUCH
FACILITIES.  THE  COMMISSIONER  SHALL  HAVE  THE AUTHORITY TO REVIEW ALL
AUDITS OR REPORTS RELATED TO THE SECURITY OF SUCH  CRITICAL  INFRASTRUC-
TURE, INCLUDING ALL SUCH AUDITS OR REPORTS MANDATED BY STATE AND FEDERAL
LAW  OR  REGULATION, INCLUDING SPILL PREVENTION REPORTS AND RISK MANAGE-
MENT PLANS, AUDITS AND REPORTS CONDUCTED AT THE REQUEST OF  ANY  FEDERAL
ENTITY,  OR  ANY OTHER AGENCY OR AUTHORITY OF THE STATE OR ANY POLITICAL
SUBDIVISION THEREOF, AND REPORTS PREPARED BY  OWNERS  AND  OPERATORS  OF
SUCH  FACILITIES  AS REQUIRED IN THIS SUBDIVISION. THE OWNERS AND OPERA-
TORS OF SUCH RAIL YARD FACILITIES SHALL, IN COMPLIANCE WITH ANY  FEDERAL
AND  STATE REQUIREMENTS REGARDING THE DISSEMINATION OF SUCH INFORMATION,
PROVIDE ACCESS TO THE COMMISSIONER TO SUCH AUDITS AND REPORTS  REGARDING
SUCH  CRITICAL  INFRASTRUCTURE  PROVIDED, HOWEVER, EXCLUSIVE CUSTODY AND
CONTROL OF SUCH AUDITS AND REPORTS SHALL REMAIN SOLELY WITH  THE  OWNERS
AND OPERATORS OF SUCH FACILITIES TO THE EXTENT NOT INCONSISTENT WITH ANY
OTHER  LAW.  FOR  THE PURPOSES OF THIS SECTION "CRITICAL INFRASTRUCTURE"
HAS THE MEANING ASCRIBED TO THAT TERM IN  SUBDIVISION  FIVE  OF  SECTION
EIGHTY-SIX OF THE PUBLIC OFFICERS LAW.

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD11295-01-1
              

A. 8545                             2

  2.  TO EFFECTUATE HIS OR HER DUTIES PURSUANT TO THIS SECTION AND IDEN-
TIFY RISKS TO THE PUBLIC, THE COMMISSIONER SHALL:
  (A)  IDENTIFY  AND  PREPARE  A LIST OF ALL RAIL YARD FACILITIES IN THE
STATE;
  (B) IN CONSULTATION WITH THE COMMISSIONER OF  TRANSPORTATION  AND  ANY
STATE,  LOCAL  AND  MUNICIPAL  OFFICIALS AS MAY BE APPROPRIATE, IDENTIFY
RAIL YARD FACILITIES, WHICH BECAUSE OF THEIR STORAGE AND/OR  TRANSPORTA-
TION  OF,  OR  RELATIONSHIP  TO,  SUCH SUBSTANCES IDENTIFIED PURSUANT TO
PARAGRAPH (A) OF SUBDIVISION TWO OF SECTION SEVEN  HUNDRED  FOURTEEN  OF
THIS  ARTICLE POSE RISKS TO THE PUBLIC SHOULD AN UNAUTHORIZED RELEASE OF
SUCH HAZARDOUS SUBSTANCES OCCUR; AND
  (C) REQUIRE SUCH RAIL YARD FACILITIES IDENTIFIED PURSUANT TO PARAGRAPH
(A) OF THIS SUBDIVISION, AS THE COMMISSIONER SO DETERMINES, TO PREPARE A
VULNERABILITY ASSESSMENT OF THE SECURITY MEASURES TAKEN BY SUCH  FACILI-
TIES  TO  PREVENT  AND  RESPOND TO THE UNAUTHORIZED RELEASE OF HAZARDOUS
SUBSTANCES AS MAY BE STORED THEREIN, WHICH ASSESSMENTS THE  COMMISSIONER
OF THE OFFICE OF HOMELAND SECURITY SHALL REVIEW AND CONSIDER IN LIGHT OF
THE  SERIOUSNESS  OF  THE  RISK POSED AND VULNERABILITY OF SUCH FACILITY
AND, WHERE APPROPRIATE, MAKE RECOMMENDATIONS WITH RESPECT THERETO.
  3. (A) ON OR BEFORE JUNE FIRST, TWO THOUSAND TWELVE, THE  COMMISSIONER
SHALL MAKE A PRELIMINARY REPORT TO THE GOVERNOR, THE TEMPORARY PRESIDENT
OF  THE  SENATE, THE SPEAKER OF THE ASSEMBLY, THE COMMISSIONER OF TRANS-
PORTATION AND THE CHIEF EXECUTIVE OFFICER OF ANY SUCH AFFECTED  FACILITY
OR  HIS  OR  HER  DESIGNEE,  AND ON OR BEFORE DECEMBER THIRTY-FIRST, TWO
THOUSAND TWELVE, AND NOT LATER THAN THREE YEARS  AFTER  SUCH  DATE,  AND
EVERY FIVE YEARS THEREAFTER, THE COMMISSIONER SHALL REPORT TO THE GOVER-
NOR, THE TEMPORARY PRESIDENT OF THE SENATE, THE SPEAKER OF THE ASSEMBLY,
THE  COMMISSIONER  OF  TRANSPORTATION AND THE CHIEF EXECUTIVE OFFICER OF
ANY SUCH AFFECTED FACILITY OR HIS OR HER  DESIGNEE.  SUCH  REPORT  SHALL
REVIEW  THE SECURITY MEASURES BEING TAKEN REGARDING CRITICAL INFRASTRUC-
TURE RELATED TO RAIL YARD FACILITIES, ASSESS THE EFFECTIVENESS  THEREOF,
AND INCLUDE RECOMMENDATIONS TO THE LEGISLATURE, THE DEPARTMENT OF TRANS-
PORTATION  IF  THE  COMMISSIONER DETERMINES THAT ADDITIONAL MEASURES ARE
REQUIRED TO BE IMPLEMENTED.
  (B) BEFORE THE RECEIPT OF SUCH REPORT IDENTIFIED IN PARAGRAPH  (A)  OF
THIS  SUBDIVISION, EACH RECIPIENT OF SUCH REPORT SHALL DEVELOP CONFIDEN-
TIALITY PROTOCOLS WHICH SHALL BE BINDING UPON THE RECIPIENT  WHO  ISSUES
THE  PROTOCOLS  AND  ANYONE  TO  WHOM  THE RECIPIENT SHOWS A COPY OF THE
REPORT IN CONSULTATION WITH THE COMMISSIONER, FOR  THE  MAINTENANCE  AND
USE OF SUCH REPORT SO AS TO ENSURE THE CONFIDENTIALITY OF THE REPORT AND
ALL  INFORMATION  CONTAINED THEREIN, PROVIDED, HOWEVER, THAT SUCH PROTO-
COLS SHALL NOT BE BINDING UPON A PERSON WHO IS PROVIDED ACCESS  TO  SUCH
REPORT  OR ANY INFORMATION CONTAINED THEREIN PURSUANT TO SECTION EIGHTY-
NINE OF THE PUBLIC OFFICERS LAW AFTER A FINAL DETERMINATION THAT  ACCESS
TO  SUCH REPORT OR ANY INFORMATION CONTAINED THEREIN COULD NOT BE DENIED
PURSUANT TO SUBDIVISION TWO OF SECTION EIGHTY-SEVEN OF THE PUBLIC  OFFI-
CERS  LAW. THE COMMISSIONER SHALL ALSO DEVELOP PROTOCOLS FOR SUCH OFFICE
RELATED TO THE MAINTENANCE AND USE OF SUCH REPORT SO AS  TO  ENSURE  THE
CONFIDENTIALITY  OF  ALL SENSITIVE INFORMATION CONTAINED IN SUCH REPORT.
ON EACH REPORT, THE COMMISSIONER SHALL PROMINENTLY DISPLAY THE FOLLOWING
STATEMENT: "THIS REPORT MAY CONTAIN INFORMATION THAT IF DISCLOSED  COULD
ENDANGER  THE  LIFE  OR SAFETY OF THE PUBLIC, AND THEREFORE, PURSUANT TO
SECTION SEVEN HUNDRED ELEVEN OF THE EXECUTIVE LAW, THIS REPORT IS TO  BE
MAINTAINED  AND  USED IN A MANNER CONSISTENT  WITH PROTOCOLS ESTABLISHED
TO PRESERVE THE CONFIDENTIALITY OF THE INFORMATION CONTAINED HEREIN IN A
MANNER CONSISTENT WITH LAW."

A. 8545                             3

  (C) THE DEPARTMENTS OF TRANSPORTATION AND  ENVIRONMENTAL  CONSERVATION
SHALL HAVE THE DISCRETION TO REQUIRE THAT RECOMMENDATIONS OF THE COMMIS-
SIONER BE IMPLEMENTED BY ANY OWNER OR OPERATOR OF A RAIL YARD FACILITY.
  S 2. This act shall take effect immediately.