S T A T E O F N E W Y O R K
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10188
I N A S S E M B L Y
March 10, 2010
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Introduced by M. of A. CASTELLI -- read once and referred to the Commit-
tee 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 716 to
read as follows:
S 716. PROTECTION OF CRITICAL INFRASTRUCTURE; RAIL YARDS. 1. NOTWITH-
STANDING ANY OTHER PROVISION OF LAW AND SUBJECT TO THE AVAILABILITY OF
AN APPROPRIATION, THE DIRECTOR SHALL CONDUCT A REVIEW AND ANALYSIS OF
MEASURES BEING TAKEN BY THE OWNERS AND OPERATORS OF RAIL YARDS FACILI-
TIES TO PROTECT THE SECURITY OF CRITICAL INFRASTRUCTURE RELATED TO SUCH
FACILITIES. THE DIRECTOR SHALL HAVE THE AUTHORITY TO REVIEW ALL AUDITS
OR REPORTS RELATED TO THE SECURITY OF SUCH CRITICAL INFRASTRUCTURE,
INCLUDING 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 DIRECTOR 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 OPER-
ATORS 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.
2. TO EFFECTUATE HIS OR HER DUTIES PURSUANT TO THIS SECTION AND IDEN-
TIFY RISKS TO THE PUBLIC, THE DIRECTOR SHALL:
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD03351-02-0
A. 10188 2
(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 DIRECTOR 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 DIRECTOR 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 ELEVEN, THE DIRECTOR
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 ELEVEN, AND NOT LATER THAN THREE YEARS AFTER SUCH DATE, AND
EVERY FIVE YEARS THEREAFTER, THE DIRECTOR 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, THE DEPARTMENT OF TRANSPOR-
TATION IF THE DIRECTOR 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 DIRECTOR, 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 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 DIRECTOR 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 DIRECTOR 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 CONSIST-
ENT WITH LAW."
A. 10188 3
(C) THE DEPARTMENTS OF TRANSPORTATION AND ENVIRONMENTAL CONSERVATION
SHALL HAVE THE DISCRETION TO REQUIRE THAT RECOMMENDATIONS OF THE DIREC-
TOR BE IMPLEMENTED BY ANY OWNER OR OPERATOR OF A RAIL YARD FACILITY.
S 2. This act shall take effect immediately.