S T A T E O F N E W Y O R K
________________________________________________________________________
8545
2011-2012 Regular Sessions
I N A S S E M B L Y
July 20, 2011
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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.