House Bill text for HB0529

HOUSE BILL 529

48th legislature - STATE OF NEW MEXICO - first session, 2007

INTRODUCED BY

Mimi Stewart

AN ACT

RELATING TO CULTURAL AFFAIRS; CREATING THE MEDIA ARTS AND ENTERTAINMENT DEPARTMENT; PROVIDING FOR THE COORDINATION AND OVERSIGHT OF MEDIA ARTS IN THE STATE; PROVIDING POWERS AND DUTIES; CREATING A FUND; TRANSFERRING PERSONNEL, FUNCTIONS, MONEY, APPROPRIATIONS, OTHER PROPERTY, CONTRACTUAL OBLIGATIONS AND STATUTORY REFERENCES; RECONCILING MULTIPLE AMENDMENTS TO THE SAME SECTION OF LAW IN LAWS 2005; AMENDING, ENACTING AND RECOMPILING SECTIONS OF THE NMSA 1978; MAKING APPROPRIATIONS.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:

Section 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 12 of this act may be cited as the "Media Arts and Entertainment Department Act".

Section 2. [NEW MATERIAL] PURPOSE.--The purpose of the Media Arts and Entertainment Department Act is to create a single, unified department to administer all laws and exercise all functions related to the development of media arts and entertainment in New Mexico and the creation and implementation of media arts and entertainment programs, including training and facilities.

Section 3. [NEW MATERIAL] DEFINITIONS.--As used in the Media Arts and Entertainment Department Act:

A. "department" means the media arts and entertainment department; and

B. "executive director" means the executive director of media arts and entertainment.

Section 4. [NEW MATERIAL] DEPARTMENT ESTABLISHED.--The "media arts and entertainment department" is created in the executive branch. The department is not a cabinet department. The department includes the following divisions:

A. administrative services division;

B. film division, including the following bureaus:

(1) production services bureau;

(2) New Mexico filmmakers bureau; and

(3) film museum bureau;

C. general media arts and entertainment division, including the following bureaus:

(1) corporate services bureau;

(2) games and animation bureau;

(3) digital imaging technologies bureau; and

(4) music bureau; and

D. media arts education division.

Section 5. [NEW MATERIAL] EXECUTIVE DIRECTOR OF MEDIA ARTS AND ENTERTAINMENT.--The chief executive and administrative officer of the department is the "executive director of media arts and entertainment". The executive director shall be appointed by the governor with the consent of the senate and shall hold office at the pleasure of the governor.

Section 6. [NEW MATERIAL] EXECUTIVE DIRECTOR--POWERS AND DUTIES.--

A. The executive director is responsible to the governor for the operation of the department. It is the executive director's duty to manage all operations of the department and to administer and enforce the laws with which the executive director or the department is charged.

B. To perform the executive director's duties, the executive director has every power expressly enumerated in the laws, whether granted to the executive director or the department or any division of the department, except where authority conferred upon any division is explicitly exempted from the executive director's authority by statute. In accordance with these provisions, the executive director shall:

(1) except as otherwise provided in the Media Arts and Entertainment Department Act, exercise general supervisory and appointing authority over all department employees, subject to any applicable personnel laws and rules;

(2) delegate authority to subordinates as the executive director deems necessary and appropriate, clearly delineating such delegated authority and the limitations thereto;

(3) organize the department into those organizational units that the executive director deems will enable it to function most efficiently, subject to any provisions of law requiring or establishing specific organizational units;

(4) within the limitations of available appropriations and applicable laws, employ and fix the compensation of those persons necessary to discharge the executive director's duties;

(5) take administrative action by issuing orders and instructions, not inconsistent with the law, to assure implementation of and compliance with the provisions of law for whose administration or execution the executive director is responsible and to enforce those orders and instructions by appropriate administrative action or actions in the courts;

(6) conduct research and studies that will improve the operations of the department and the provision of services to the citizens of the state;

(7) provide courses of instruction and practical training for employees of the department and other persons involved in the administration of programs, with the objective of improving the operations and efficiency of administration; and

(8) prepare an annual budget of the department.

C. The executive director may apply for and receive, with the governor's approval, in the name of the department any public or private funds, including United States government funds, available to the department to carry out its programs, duties or services.

D. The executive director may make and adopt such reasonable and procedural rules as may be necessary to carry out the duties of the department and its divisions. No rule promulgated by the director of any division in carrying out the functions and duties of the division shall be effective until approved by the executive director, unless otherwise provided by law. Unless otherwise provided by law, no rule affecting any person or agency outside the department shall be adopted, amended or repealed without a public hearing on the proposed action before the executive director or a hearing officer designated by the executive director. The public hearing shall be held in Santa Fe unless otherwise permitted by statute. Notice of the subject matter of the rule, the action proposed to be taken, the time and place of the hearing, the manner in which interested persons may present their views and the method by which copies of the proposed rule, proposed amendment or repeal of an existing rule may be obtained shall be published once at least thirty days prior to the hearing date in a newspaper of general circulation and mailed at least thirty days prior to the hearing date to all persons who have made a written request for advance notice of hearing. All rules shall be filed in accordance with the State Rules Act.

Section 7. [NEW MATERIAL] DEPARTMENT--ADDITIONAL DUTIES.--The department shall:

A. develop and implement a strategic plan for building a media arts and entertainment infrastructure in New Mexico, including studios and postproduction facilities and a trained workforce to provide all technical and professional services required by media arts and entertainment, including video gaming, animation and other digital visualization industries;

B. actively recruit filmmakers and production companies to film in New Mexico;

C. actively recruit media arts production, media-related and entertainment companies to locate their businesses in New Mexico;

D. assist in designing workforce training programs for film production and other positions in media arts and entertainment;

E. develop, update and publish directories of personnel, services, venues, locations and other information pertaining to media arts and entertainment, including film and related media and music;

F. promote and preserve New Mexico's musical traditions and music industry;

G. coordinate and oversee media-related programs that receive state funding; and

H. coordinate and oversee the creation and sustainability of special media-related education or entertainment projects of state agencies or institutions and assist other state agencies and institutions in developing media arts and entertainment programs for the target populations they serve.

Section 8. [NEW MATERIAL] DIVISION DIRECTORS.--The executive director shall appoint, with the approval of the governor, "directors" of the divisions established within the department. The positions so appointed are exempt from the Personnel Act.

Section 9. [NEW MATERIAL] BUREAU CHIEFS.--The executive director shall establish within each division such "bureaus" as the executive director deems necessary to carry out the provisions of the Media Arts and Entertainment Department Act. The executive director shall appoint a "chief" to be the administrative head of any such bureau. The positions so appointed shall be exempt from the Personnel Act.

Section 10. [NEW MATERIAL] ADMINISTRATIVE SERVICES DIVISION--DUTIES.--

A. The administrative services division of the department shall provide administrative services to the department, including keeping all official records of the department and providing clerical services in the areas of personnel and budget preparation.

B. In addition to its other duties, the division shall coordinate long- and short-term planning of the department and administer programs and grants that have been assigned generally to the department by the governor or by law.

Section 11. [NEW MATERIAL] ORGANIZATIONAL UNITS OF DEPARTMENT--POWERS AND DUTIES SPECIFIED BY LAW--ACCESS TO INFORMATION.--Those organizational units of the department and the officers of those units specified by law shall have all of the powers and duties enumerated in the specific laws involved. However, the carrying out of those powers and duties shall be subject to the direction and supervision of the executive director, and the executive director shall retain the final decision-making authority and responsibility for the administration of any such laws as provided in Subsection B of Section 6 of the Media Arts and Entertainment Department Act. The department shall have access to all records, data and information of other state departments, agencies and institutions, including its own organizational units, not specifically held confidential by law.

Section 12. Section 9-15-4.1 NMSA 1978 (being Laws 2003, Chapter 97, Section 1, as amended) is recompiled into the Media Arts and Entertainment Department Act and amended to read:

"GOVERNOR'S COUNCIL ON FILM AND MEDIA INDUSTRIES--CREATED--MEMBERSHIP--EXECUTIVE BOARD.--

A. The "governor's council on film and media industries" is created to advise the media arts and entertainment department and the governor on ways to promote film production in New Mexico, assist in the design and implementation of the department's strategic plan for building a media infrastructure in the state, assist in designing a workforce training program for film production and make recommendations for incentives and funding for these efforts.

B. The governor's council on film and media industries shall be composed of no more than thirty members appointed by the governor for four-year staggered terms; provided that the initial appointments shall be made so that one-half of the members shall be appointed for two-year terms and one-half of the members shall be appointed for four-year terms. Terms shall expire on January 1.

C. From the membership of the governor's council on film and media industries, the governor shall appoint a seven-member "executive board". At least five members of the executive board shall have experience in some aspect of film production. The executive board shall:

(1) with the approval of the [secretary] executive director, create subcommittees of the governor's council on film and media industries and name the [chairmen] chairpersons of those subcommittees;

(2) coordinate activities of the subcommittees and the governor's council on film and media industries; and

(3) develop recommendations pertaining to the charges of the governor's council on film and media industries for the consideration of the [governor's] council [on film and media industries].

D. The governor shall name the [chairman] chairperson of the governor's council on film and media industries, who shall serve as the [chairman] chairperson of the executive board. The [governor's] council [on film and media industries] may elect such other officers as it deems necessary. The [governor's] council [on film and media industries] shall meet at the call of the [chairman] chairperson, at least quarterly. Members of the [governor's] council [on film and media industries] may receive per diem and mileage for travel within New Mexico as provided in the Per Diem and Mileage Act, but shall receive no other compensation, perquisite or allowance.

E. Staff for the governor's council on film and media industries shall be provided by the department.

F. The governor's council on film and media industries shall report to the department, the governor and the legislature by December 1 of each year on its activities and recommendations."

Section 13. Section 7-2F-1 NMSA 1978 (being Laws 2002, Chapter 36, Section 1, as amended) is amended to read:

"7-2F-1. FILM PRODUCTION TAX CREDIT.--

A. The tax credit created by this section may be referred to as the "film production tax credit". An eligible film production company may apply for, and the taxation and revenue department may allow, a tax credit in an amount equal to the percentage specified in Subsection B of this section of:

(1) direct production expenditures made in New Mexico that are directly attributable to the production in New Mexico of a film or commercial audiovisual product and that are subject to taxation by the state of New Mexico; and

(2) postproduction expenditures made in New Mexico that are:

(a) directly attributable to the production of a commercial film or audiovisual product;

(b) for services performed in New Mexico; and

B. Except as provided in Subsection C of this section, the percentage to be applied in calculating the amount of the film production tax credit is:

(1) twenty percent; and

(2) for taxable years beginning prior to January 1, 2009, an additional five percent.

C. The additional five percent tax credit amount pursuant to Paragraph (2) of Subsection B of this section shall not be available with respect to expenditures attributable to a production for which the film production company receives a tax credit pursuant to the federal new markets tax credit program.

D. The film production tax credit shall not be claimed with respect to direct production expenditures or post-production expenditures for which the film production company has delivered a nontaxable transaction certificate pursuant to Section 7-9-86 NMSA 1978.

E. A long-form narrative film production for which the film production tax credit is claimed pursuant to Paragraph (1) of Subsection A of this section shall contain an acknowledgment that the production was filmed in New Mexico.

F. To be eligible for the film production tax credit, a film production company shall submit to the [New Mexico film division of the economic development] media arts and entertainment department information required by the [division] department to demonstrate conformity with the requirements of this section and shall agree in writing:

(1) to pay all obligations the film production company has incurred in New Mexico;

(2) to publish, at completion of principal photography, a notice at least once a week for three consecutive weeks in local newspapers in regions where filming has taken place to notify the public of the need to file creditor claims against the film production company by a specified date;

(3) that outstanding obligations are not waived should a creditor fail to file by the specified date; and

(4) to delay filing of a claim for the film production tax credit until the [New Mexico film division] media arts and entertainment department delivers written notification to the taxation and revenue department that the film production company has fulfilled all requirements for the credit.

G. The [New Mexico film division] media arts and entertainment department shall determine the eligibility of the company and shall report this information to the taxation and revenue department in a manner and at times the [economic development] media arts and entertainment department and the taxation and revenue department shall agree upon.

H. To receive a film production tax credit, a film production company shall apply to the taxation and revenue department on forms and in the manner the department may prescribe. The application shall include a certification of the amount of direct production expenditures or post-production expenditures made in New Mexico with respect to the film production for which the film production company is seeking the film production tax credit. If the requirements of this section have been complied with, the taxation and revenue department shall approve the film production tax credit and issue a document granting the tax credit.

I. The film production company may apply all or a portion of the film production tax credit granted against personal income tax liability or corporate income tax liability. If the amount of the film production tax credit claimed exceeds the film production company's tax liability for the taxable year in which the credit is being claimed, the excess shall be refunded."

Section 14. Section 7-9-86 NMSA 1978 (being Laws 1995, Chapter 80, Section 1, as amended) is amended to read:

"7-9-86. DEDUCTION--GROSS RECEIPTS TAX--SALES TO QUALIFIED FILM PRODUCTION COMPANY.--

A. Receipts from selling or leasing property and from performing services may be deducted from gross receipts or from governmental gross receipts if the sale, lease or performance is made to a qualified production company that delivers a nontaxable transaction certificate to the seller, lessor or performer.

B. For the purposes of this section:

(1) "film" means a single media or multimedia program, including an advertising message, that:

(a) is fixed on film, digital medium, videotape, computer disc, laser disc or other similar delivery medium;

(b) can be viewed or reproduced;

(d) is intended for reasonable commercial exploitation for the delivery medium used;

(2) "production company" means a person that produces one or more films for exhibition in theaters, on television or elsewhere;

(3) "production costs" means the costs of the following:

(a) a story and scenario to be used for a film;

(b) salaries of talent, management and labor, including payments to personal services corporations for the services of a performing artist;

(d) photography, sound synchronization, lighting and related services;

(e) editing and related services;

(f) rental of facilities and equipment; or

(g) other direct costs of producing the film in accordance with generally accepted entertainment industry practice; and

(4) "qualified production company" means a production company that meets the provisions of this section and has registered or will register with the [New Mexico film division of the economic development] media arts and entertainment department.

C. A qualified production company may deliver the nontaxable transaction certificates authorized by this section only with respect to production costs."

Section 15. Section 7-27-5.26 NMSA 1978 (being Laws 2000 (2nd S.S.), Chapter 6, Section 2, as amended by Laws 2005, Chapter 101, Section 2 and by Laws 2005, Chapter 106, Section 1) is amended to read:

"7-27-5.26. INVESTMENT IN FILMS TO BE PRODUCED IN NEW MEXICO.--

A. No more than five percent of the market value of the severance tax permanent fund may be invested in New Mexico film private equity funds or a New Mexico film project under this section.

B. If an investment is made under this section, not more than fifteen million dollars ($15,000,000) of the amount authorized for investment pursuant to Subsection A of this section shall be invested in any one New Mexico film private equity fund or any one New Mexico film project.

C. The state investment officer shall make investments pursuant to this section only upon approval of the state investment council after a review by the private equity investment advisory committee and the [New Mexico film division of the economic development] media arts and entertainment department. The state investment officer may make debt or equity investments pursuant to this section only in New Mexico film projects or New Mexico film private equity funds that invest only in film projects that:

(1) are filmed wholly or substantially in New Mexico;

(2) have shown to the satisfaction of the [New Mexico film division] media arts and entertainment department that a distribution contract is in place with a reputable distribution company;

(3) have agreed that, while filming in New Mexico, a majority of the production crew will be New Mexico residents;

(4) have posted a completion bond that has been approved by the [New Mexico film division] media arts and entertainment department; provided that a completion bond shall not be required if the fund or project is guaranteed pursuant to Paragraph (5) of this subsection; and

(5) have obtained a full, unconditional and irrevocable guarantee of repayment of the invested amount in favor of the severance tax permanent fund:

(a) from an entity that has a credit rating of not less than Baa or BBB by a national rating agency;

(b) from a substantial subsidiary of an entity that has a credit rating of not less than Baa or BBB by a national rating agency;

(c) by providing a full, unconditional and irrevocable letter of credit from a United States incorporated bank with a credit rating of not less than A by a national rating agency; or

(d) from a substantial and solvent entity as determined by the state investment council in accordance with its standards and practices; or

(6) if not guaranteed pursuant to Paragraph (5) of this subsection, have obtained no less than one-third of the estimated total production costs from other sources as approved by the state investment officer.

D. The state investment officer may loan at a market rate of interest, with respect to an eligible New Mexico film project, up to eighty percent of an expected and estimated film production tax credit available to a film production company pursuant to the provisions of Section 7-2F-1 NMSA 1978; provided that the film production company agrees to name the state investment officer as its agent for the purpose of filing an application for the film production tax credit to which the company is entitled if the company does not apply for the film production tax credit. The [New Mexico film division of the economic development] media arts and entertainment department shall determine the estimated amount of a film production tax credit. The state investment council shall establish guidelines for the state investment officer's initiation of a loan and the terms of the loan.

E. As used in this section:

(1) "film project" means a single media or multimedia program, including advertising messages, fixed on film, videotape, computer disc, laser disc or other similar delivery medium from which the program can be viewed or reproduced and that is intended to be exhibited in theaters; licensed for exhibition by individual television stations, groups of stations, networks, cable television stations or other means; or licensed for the home viewing market; and

(2) "New Mexico film private equity fund" means any limited partnership, limited liability company or corporation organized and operating in the United States that:

(a) has as its primary business activity the investment of funds in return for equity in film projects produced wholly or partly in New Mexico;

(b) holds out the prospects for capital appreciation from such investments; and

(c) accepts investments only from accredited investors as that term is defined in Section 2 of the federal Securities Act of 1933, as amended, and rules promulgated pursuant to that section."

Section 16. Section 9-15-4 NMSA 1978 (being Laws 1983, Chapter 297, Section 4, as amended) is amended to read:

"9-15-4. DEPARTMENT ESTABLISHED.--There is created in the executive branch the "economic development department". The department shall be a cabinet department and shall consist of, but not be limited to, [five] four divisions as follows:

A. the administrative services division;

B. the economic development division;

[C. the New Mexico film division;

D.] C. the technology enterprise division; and

[E.] D. the trade and Mexican affairs division."

Section 17. Section 15-3-6.1 NMSA 1978 (being Laws 2001, Chapter 195, Section 1) is amended to read:

"15-3-6.1. STATE PENITENTIARY--LEASE FOR MOTION PICTURES.--The corrections department, the property control division of the general services department and the [New Mexico film division of the economic development] media arts and entertainment department shall enter into a joint powers agreement to make the old state penitentiary at Santa Fe available for use by the motion picture industry. The property and structures that fall within the existing security perimeter fence at the old state penitentiary at Santa Fe and any building not used by the corrections department that is within three hundred yards of the outside of the security perimeter fence of the old state penitentiary at Santa Fe shall be made available for lease at reasonable market rates to the motion picture industry for economic development."

Section 18. Section 18-14-3 NMSA 1978 (being Laws 2003, Chapter 250, Section 3, as amended) is amended to read:

"18-14-3. MUSEUM--LOCATION--PROPERTY.--

A. The "New Mexico film museum" is created within the [cultural affairs] media arts and entertainment department. The museum shall be located in Santa Fe.

B. All real or personal property held or subsequently acquired for the operation of the museum shall be under the control and authority of the board.

C. Funds or other property received as a gift, endowment or legacy shall remain under the control of the board and shall, upon acceptance, be used for the operation of the museum."

Section 19. Section 18-14-4 NMSA 1978 (being Laws 2003, Chapter 250, Section 4, as amended) is amended to read:

"18-14-4. BOARD--APPOINTMENT--TERMS--OFFICERS.--

A. The "board of trustees of the New Mexico film museum" is created.

B. The board shall consist of eleven members who are residents of New Mexico, appointed by the governor with the advice and consent of the senate. In making the appointments, the governor shall give due consideration to the geographic distribution of the members' places of residence. The members shall be persons who have expertise or have demonstrated a continuing interest in the fields of film, filmmaking or museums; provided that one of the members shall be the director of the [New Mexico] film division of the [economic development] media arts and entertainment department or the director's designee.

C. The board members shall be appointed for terms of four years or less so that all terms are coterminous with the current term of the governor who appointed them. The board members shall serve at the pleasure of the governor.

D. The secretary of cultural affairs or the secretary's designee shall be an ex-officio nonvoting member of the board.

E. The president of the board shall be designated by the governor and shall serve in that capacity at the pleasure of the governor. Other officers shall be elected annually by the board at its first scheduled meeting after July 1 of each year."

Section 20. A new section of the New Mexico Film Museum Act is enacted to read:

"[NEW MATERIAL] FILM MUSEUM FUND--CREATED--PURPOSE.--The "film museum fund" is created as a nonreverting fund in the state treasury. The fund consists of appropriations, gifts, grants, donations and money earned by the New Mexico film museum through ticket sales, concessions, leasing of the theater in which the New Mexico film museum is housed and the sale of other goods and services. The fund shall be administered by the media arts and entertainment department, and money in the fund is appropriated to the film museum bureau to operate the New Mexico film museum. Disbursements from the fund shall be by warrant of the secretary of finance and administration upon vouchers signed by the director of the film division or the director's authorized representative."

Section 21. TEMPORARY PROVISION--TRANSFERS.--

A. On the effective date of this act, all functions, personnel, appropriations, money, records, files, furniture, equipment, supplies and other property of the New Mexico film division of the economic development department are transferred to the media arts and entertainment department.

B. On the effective date of this act, all functions, personnel, appropriations, money, records, files, furniture, equipment, supplies and other property of the New Mexico film museum and the board of trustees of the museum are transferred to the media arts and entertainment department.

C. On the effective date of this act, all contractual obligations of the New Mexico film division of the economic development department are binding on the media arts and entertainment department.

D. On the effective date of this act, all contractual obligations of the New Mexico film museum or the board of trustees of the New Mexico film museum are binding on the media arts and entertainment department.

E. On the effective date of this act, all references in law to the New Mexico film division of the economic development department are deemed to be references to the media arts and entertainment department.

F. On the effective date of this act, all references in law to the New Mexico film museum or the board of trustees of the New Mexico film museum are deemed to be references to the media arts and entertainment department.

Section 22. APPROPRIATION.--Five hundred thousand dollars ($500,000) is appropriated from the general fund to the department of finance and administration for expenditure in fiscal year 2008 to establish the media arts and entertainment department. Any unexpended or unencumbered balance remaining at the end of fiscal year 2008 shall revert to the general fund.

Section 23. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2007.

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