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

                                  5275

                       2011-2012 Regular Sessions

                            I N  S E N A T E

                               May 3, 2011
                               ___________

Introduced  by  Sen.  BALL  --  read twice and ordered printed, and when
  printed to be committed to the Committee on Veterans, Homeland Securi-
  ty and Military Affairs

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"

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

              

S. 5275                             2

HAS THE MEANING ASCRIBED TO THAT TERM IN  SUBDIVISION  FIVE  OF  SECTION
EIGHTY-SIX OF THE PUBLIC OFFICERS LAW.
  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

S. 5275                             3

TO PRESERVE THE CONFIDENTIALITY OF THE INFORMATION CONTAINED HEREIN IN A
MANNER CONSISTENT WITH LAW."
  (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.