S T A T E   O F   N E W   Y O R K
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                                  3178

                       2009-2010 Regular Sessions

                          I N  A S S E M B L Y

                            January 23, 2009
                               ___________

Introduced by M. of A. BRADLEY, ALFANO -- Multi-Sponsored by -- M. of A.
  BARRA -- read once and referred to the Committee on Governmental Oper-
  ations

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

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD03351-01-9

              

A. 3178                             2

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:
  (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 TEN, THE DIRECTOR 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 TEN, AND NOT LATER THAN THREE YEARS AFTER SUCH DATE, AND EVERY FIVE
YEARS  THEREAFTER, THE DIRECTOR SHALL REPORT TO THE GOVERNOR, THE TEMPO-
RARY PRESIDENT OF THE SENATE, THE SPEAKER OF THE ASSEMBLY,  THE  COMMIS-
SIONER  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 TRANSPORTATION 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

A. 3178                             3

CONFIDENTIALITY OF THE INFORMATION CONTAINED HEREIN IN A MANNER CONSIST-
ENT WITH LAW."
  (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.