S T A T E   O F   N E W   Y O R K
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                                  3882

                       2013-2014 Regular Sessions

                            I N  S E N A T E

                            February 26, 2013
                               ___________

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 division
  of homeland security and emergency services to conduct  a  review  and
  analysis of security 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 719 to
read as follows:
  S 719. PROTECTION OF CRITICAL INFRASTRUCTURE; RAIL YARDS. 1.  NOTWITH-
STANDING ANY OTHER PROVISION OF LAW AND SUBJECT TO THE  AVAILABILITY  OF
AN  APPROPRIATION, THE COMMISSIONER OF THE DIVISION OF HOMELAND SECURITY
AND EMERGENCY SERVICES SHALL CONDUCT A REVIEW AND ANALYSIS  OF  MEASURES
BEING  TAKEN  BY  THE  OWNERS  AND OPERATORS OF RAIL YARDS FACILITIES TO
PROTECT THE SECURITY OF CRITICAL INFRASTRUCTURE RELATED TO SUCH  FACILI-
TIES. SUCH COMMISSIONER SHALL HAVE THE AUTHORITY TO REVIEW ALL AUDITS OR
REPORTS RELATED TO THE SECURITY OF SUCH CRITICAL INFRASTRUCTURE, INCLUD-
ING  ALL  SUCH  AUDITS  OR  REPORTS MANDATED BY STATE AND FEDERAL LAW OR
REGULATION, INCLUDING  SPILL  PREVENTION  REPORTS  AND  RISK  MANAGEMENT
PLANS,  AUDITS AND REPORTS CONDUCTED AT THE REQUEST OF ANY FEDERAL ENTI-
TY, 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.
                                                           LBD07308-01-3
              

S. 3882                             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 OF THE DIVISION  OF  HOMELAND
SECURITY AND EMERGENCY SERVICES 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 FOURTEEN, THE COMMISSION-
ER OF THE DIVISION OF HOMELAND SECURITY  AND  EMERGENCY  SERVICES  SHALL
MAKE  A  PRELIMINARY  REPORT TO THE GOVERNOR, THE TEMPORARY PRESIDENT OF
THE SENATE, THE SPEAKER OF THE ASSEMBLY, THE COMMISSIONER OF TRANSPORTA-
TION AND THE CHIEF EXECUTIVE OFFICER OF ANY SUCH  AFFECTED  FACILITY  OR
HIS  OR  HER DESIGNEE, AND ON OR BEFORE DECEMBER THIRTY-FIRST, TWO THOU-
SAND FOURTEEN, AND NOT LATER THAN THREE YEARS AFTER SUCH DATE, AND EVERY
FIVE YEARS THEREAFTER, THE COMMISSIONER SHALL REPORT  TO  THE  GOVERNOR,
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  INFRASTRUCTURE
RELATED  TO  RAIL YARD FACILITIES, ASSESS THE EFFECTIVENESS THEREOF, AND
INCLUDE RECOMMENDATIONS TO THE LEGISLATURE AND 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 OF THE DIVISION OF HOMELAND
SECURITY AND EMERGENCY SERVICES, FOR THE MAINTENANCE  AND  USE  OF  SUCH
REPORT  SO AS TO ENSURE THE CONFIDENTIALITY OF THE REPORT AND ALL INFOR-
MATION CONTAINED THEREIN, PROVIDED, HOWEVER, THAT SUCH  PROTOCOLS  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 OFFICERS LAW.
THE COMMISSIONER SHALL ALSO DEVELOP PROTOCOLS FOR THE DIVISION OF  HOME-
LAND  SECURITY AND EMERGENCY SERVICES 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

S. 3882                             3

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 CONFIDEN-
TIALITY 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 OF THE DIVISION OF HOMELAND SECURITY AND  EMERGENCY  SERVICES  BE
IMPLEMENTED BY ANY OWNER OR OPERATOR OF A RAIL YARD FACILITY.
  S 2. This act shall take effect immediately.