HOUSE BILL 38
50th legislature - STATE OF NEW MEXICO - first special session, 2011
INTRODUCED BY
Ray Begaye
AN ACT
RELATING TO PUBLIC SAFETY; PROVIDING FOR ENHANCED PUBLIC SAFETY BY PROVIDING THAT SIXTY PERCENT OF THE REVENUES FROM THE GROSS RECEIPTS TAX ON FIREWORKS BE DISTRIBUTED FOR THE FORESTRY DIVISION OF THE ENERGY, MINERALS AND NATURAL RESOURCES DEPARTMENT TO CONDUCT FIRE PREVENTION PROJECTS IN WILDLANDS OF THE STATE; AMENDING AND ENACTING SECTIONS OF THE NMSA 1978 TO PROVIDE THE GOVERNOR, MUNICIPALITIES AND COUNTIES WITH AUTHORITY TO PROCLAIM A STATE OF EMERGENCY TO BAN OR RESTRICT THE SALE AND USE OF FIREWORKS IN ANY AREA WHERE THE NATIONAL FIRE DANGER RATING IS HIGH, VERY HIGH OR EXTREME; CREATING A FUND; MAKING AN APPROPRIATION; DECLARING AN EMERGENCY.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF NEW MEXICO:
SECTION 1. A new section of the Tax Administration Act is enacted to read:
"[NEW MATERIAL] DISTRIBUTION--GROSS RECEIPTS AND COMPENSATING TAX ACT--SALES OF FIREWORKS.--A distribution pursuant to Section 7-1-6.1 NMSA 1978 shall be made to the wildlands fire prevention fund in an amount equal to sixty percent of the net receipts attributable to the gross receipts tax less penalties and interest imposed by the Gross Receipts and Compensating Tax Act on the sale of fireworks."
SECTION 2. Section 7-9-4 NMSA 1978 (being Laws 1966, Chapter 47, Section 4, as amended) is amended to read:
"7-9-4. IMPOSITION AND RATE OF TAX--DENOMINATION AS "GROSS RECEIPTS TAX".--
A. For the privilege of engaging in business, an excise tax equal to five and one-eighth percent of gross receipts is imposed on any person engaging in business in New Mexico.
B. The tax imposed by this section shall be referred to as the "gross receipts tax".
C. Sixty percent of the annual net revenues less penalties and interest derived from the gross receipts tax on fireworks, as defined in the Fireworks Licensing and Safety Act, shall be distributed to the wildlands fire prevention fund."
SECTION 3. A new section of the Forest Conservation Act is enacted to read:
"[NEW MATERIAL] WILDLANDS FIRE PREVENTION FUND--CREATED.--
A. The "wildlands fire prevention fund" is created in the state treasury. The fund shall consist of distributions from sixty percent of the net receipts less penalties and interest collected pursuant to the Gross Receipts and Compensating Tax Act on the sale of fireworks; appropriations, gifts, grants, donations and bequests made to the fund; and reimbursements of costs incurred by the forestry division for wildlands fire prevention projects. Income from the fund shall be credited to the fund, and money in the fund shall not revert or be transferred to any other fund at the end of a fiscal year. Money in the fund is appropriated to the forestry division for the purposes of wildlands fire prevention projects. Expenditures from the fund shall be made on warrant of the secretary of finance and administration pursuant to vouchers signed by the secretary of energy, minerals and natural resources.
B. As used in this section, "wildlands" includes forests, bosques and brush-covered lands."
SECTION 4. Section 12-10-4 NMSA 1978 (being Laws 1959, Chapter 190, Section 5, as amended) is amended to read:
"12-10-4. ALL HAZARD EMERGENCY MANAGEMENT--POWERS OF THE GOVERNOR.--
A. The governor shall have general direction and control of the activities of the homeland security and emergency management department and shall be responsible for carrying out the provisions of the All Hazard Emergency Management Act and, in the event of any man-made or natural disaster causing or threatening widespread physical or economic harm that is beyond local control and requiring the resources of the state, shall exercise direction and control over any and all state forces and resources engaged in emergency operations or related all hazard emergency management functions within the state.
B. In carrying out the provisions of the All Hazard Emergency Management Act, the governor is authorized to:
(1) cooperate with the federal government and agree to carry out all hazard emergency management responsibilities delegated in accordance with existing federal laws and policies and cooperate with other states and with private agencies in all matters relating to the all hazard emergency management of the state and nation;
(2) issue, amend or rescind the necessary orders, rules and procedures to carry out the provisions of the All Hazard Emergency Management Act;
(3) provide those resources and services necessary to avoid or minimize economic or physical harm until a situation becomes stabilized and again under local self-support and control, including the provision, on a temporary, emergency basis, of lodging, sheltering, health care, food, transportation or shipping necessary to protect lives or public property; or for any other action necessary to protect the public health, safety and welfare;
(4) prepare a comprehensive emergency operations plan and program and to integrate the state emergency operations plan and program with the emergency operations plans and programs of the federal government and other states and to coordinate the preparation of emergency operations plans and programs by the political subdivisions of this state;
(5) procure supplies and equipment, to institute training programs and public information programs and to take all necessary preparatory actions, including the partial or full mobilization of state and local government forces and resources in advance of actual disaster, to ensure the furnishing of adequately trained and equipped emergency forces of government and auxiliary personnel to cope with disasters resulting from enemy attack or other causes; [and]
(6) enter into mutual aid agreements with other states and to coordinate mutual aid agreements between political subdivisions of the state; and
(7) proclaim a state of emergency that temporarily bans or restricts the sale or use, or both the sale and use, of fireworks, as defined in the Fireworks Licensing and Safety Act, in an area where the fire danger rating is deemed to be high, very high or extreme, as determined by the national fire danger rating system."
SECTION 5. A new section of the Fireworks Licensing and Safety Act is enacted to read:
"[NEW MATERIAL] GOVERNOR PROCLAMATION--NATIONAL FIRE DANGER RATING SYSTEM--FIREWORKS.--Pursuant to Section 12-10-4 NMSA 1978, the governor may proclaim a state of emergency that temporarily bans or restricts the sale or use, or both the sale and use, of fireworks in an area where the fire danger rating is deemed to be high, very high or extreme, as determined by the national fire danger rating system. The proclamation becomes effective immediately upon its signing by the governor, but the governor shall give public notice of its contents through the public press and other news media. The proclamation shall be effective for thirty days, and the governor may issue succeeding proclamations if conditions warrant. The proclamation shall explain restrictions on the sale and use of fireworks and the permitted sale and use of fireworks and the geographic extent of the proclamation's provisions. The proclamation may be modified or rescinded by the governor within its thirty-day period upon a finding that the fire danger rating is deemed to be less than high as determined by the national fire danger rating system. The governor shall consult with Indian nations, tribes or pueblos that include an area where the fire danger rating is deemed to be high, very high or extreme, as determined by the national fire danger rating system. The governor's proclamation may be more restrictive within that jurisdiction than restrictions imposed by a municipality or a county but shall not be less restrictive than the municipality or county."
SECTION 6. Section 60-2C-2 NMSA 1978 (being Laws 1989, Chapter 346, Section 2, as amended) is amended to read:
"60-2C-2. DEFINITIONS.--As used in the Fireworks Licensing and Safety Act:
A. "aerial shell" means a cylindrical or spherical cartridge containing a lift charge, burst charge and effect composition. Upon firing from a reloadable tube, the lift charge is consumed and the cartridge is expelled into the air;
B. "aerial shell kit-reloadable tube" means a package or kit containing a cardboard, high-density polyethylene or equivalent launching tube and not more than twelve small aerial shells. Each aerial shell is limited to a maximum of sixty grams of total chemical composition, including lift charges, and the maximum diameter of each shell shall not exceed one and three-fourths inches;
C. "bosque" means a cottonwood corridor adjacent to a river;
D. "chaser" means a paper or cardboard tube venting out the fuse end of the tube that contains no more than twenty grams of chemical composition and travels along the ground, often producing a whistling effect or other noise; an explosive composition not to exceed fifty milligrams may be included to produce a report;
E. "chemical composition" includes all pyrotechnic and explosive composition contained in a fireworks device but does not include inert materials such as clay used for plugs or organic matter such as rice hulls used for density control;
F. "cone fountain" means a cardboard or heavy paper cone containing no more than fifty grams of pyrotechnic composition that has the same effect as a cylindrical fountain. When more than one cone is mounted on a common base, total pyrotechnic composition shall not exceed two hundred grams;
G. "crackling device" means a sphere or paper tube that contains no more than twenty grams of pyrotechnic composition that produces a flash of light and a mild, audible crackling effect upon ignition, which effect is not considered to be an explosion. Crackling devices are not subject to the fifty-milligram limit of firecrackers;
H. "cylindrical fountain" means a cylindrical tube containing not more than seventy-five grams of pyrotechnic composition that produces a shower of colored sparks and sometimes a whistling effect or smoke. The device may be provided with a spike for insertion into the ground or a wood or plastic base for placing on the ground or a wood or cardboard handle to be hand-held. When more than one tube is mounted on a common base, total pyrotechnic composition shall not exceed two hundred grams;
I. "display distributor" means a person, firm or corporation selling display fireworks;
J. "display fireworks" means devices primarily intended for commercial displays that are designed to produce visible or audible effects by combustion, deflagration or detonation, including salutes containing more than one hundred thirty milligrams of explosive composition; aerial shells containing more than forty grams of chemical composition exclusive of lift charge; and other exhibition display items that exceed the limits for permissible fireworks;
K. "distributor" means a person, firm or corporation selling fireworks to wholesalers and retailers for resale;
L. "explosive composition" means a chemical compound or mixture, the primary purpose of which is to function by explosion, producing an audible effect in a fireworks device;
M. "firecracker" means a small, paper-wrapped or cardboard tube containing no more than fifty milligrams of explosive composition that produces noise and a flash of light; provided that firecrackers used in aerial devices may contain up to one hundred thirty milligrams of explosive composition per report;
N. "fireworks" means devices intended to produce a visible or audible effect by combustion, deflagration or detonation [and are categorized as "permissible fireworks" or "display fireworks"] but does not include [novelties or] theatrical pyrotechnics articles;
O. "flitter sparkler" means a narrow paper tube attached to a stick or wire and filled with no more than five grams of pyrotechnic composition that produces color and sparks upon ignition and the paper at one end of the tube is ignited to make the device function;
P. "ground spinner" means a small, rapidly spinning device containing no more than twenty grams of pyrotechnic composition venting out an orifice usually on the side of the tube that when ignited produces a shower of sparks and color. "Ground spinner" is similar in operation to a wheel but is intended to be placed flat on the ground and ignited;
Q. "helicopter" or "aerial spinner" means a tube containing no more than twenty grams of chemical composition with a propeller or blade attached that spins rapidly as it rises into the air with a visible or audible effect sometimes produced at or near the height of flight;
R. "illuminating torch" means a cylindrical tube containing no more than one hundred grams of pyrotechnic composition that produces a colored flame upon ignition and may be spiked, based or hand-held. When more than one tube is mounted on a common base, total pyrotechnic composition shall not exceed two hundred grams;
S. "manufacturer" means a person, firm or corporation engaged in the manufacture of fireworks;
T. "mine" or "shell" means a heavy cardboard or paper tube usually attached to a wooden or plastic base and containing no more than sixty grams of total chemical composition, including lift charges, per tube that individually expels pellets of pressed pyrotechnic composition that burn with bright color in a star effect, or other devices propelled into the air, and that contains components producing reports containing a maximum one hundred thirty milligrams of explosive composition per report. A mine may contain more than one tube, but the tubes must fire in sequence upon ignition of one external fuse and must be a dense-packed collection of mine or shell tubes and the total chemical composition, including lift charges, shall not exceed two hundred grams;
U. "missile-type rocket" means a device similar to a stick-type rocket in size, composition and effect that uses fins rather than a stick for guidance and stability and that contains no more than twenty grams of chemical composition;
V. "multiple tube devices" means a device that contains more than one cardboard tube and the ignition of one external fuse that causes all of the tubes to function in sequence. The tubes are individually attached to a wood or plastic base or are dense-packed and are held together by glue, wire, string or other means that securely hold the tubes together during operation. A maximum total weight of five hundred grams of pyrotechnic composition shall be permitted; provided that the tubes are securely attached to a wood or plastic base and are separated from each other on the base by a distance of at least one-half inch. The connecting fuses on multiple tube devices shall be fused in sequence so that the tubes fire sequentially rather than all at once;
W. "novelties" means devices containing small amounts of pyrotechnic or explosive composition that produce limited visible or audible effects, including party poppers, snappers, toy smoke devices, snakes, glowworms, sparklers or toy caps, and devices intended to produce unique visual or audible effects that contain sixteen milligrams or less of explosive composition and limited amounts of other pyrotechnic composition, including cigarette loads, trick matches, explosive auto alarms and other trick noisemakers;
X. "permissible fireworks" or "consumer fireworks" means fireworks legal for sale to and use in New Mexico by the general public that comply with the latest construction, performance, composition and labeling requirements established by the United States consumer product safety commission and the United States department of transportation;
Y. "pyrotechnic composition" means a chemical mixture that on burning and without explosion produces visible or brilliant displays or bright lights or whistles or motion;
Z. "retailer" means a person, firm or corporation purchasing fireworks for resale to consumers;
AA. "roman candle" means a heavy paper or cardboard tube containing no more than twenty grams of chemical composition that individually expels pellets of pressed pyrotechnic composition that burn with bright color in a star effect;
BB. "specialty retailer" means a person, firm or corporation purchasing permissible fireworks for year-round resale in permanent retail stores whose primary business is tourism;
CC. "stick-type rocket" means a cylindrical tube containing no more than twenty grams of chemical composition with a wooden stick attached for guidance and stability that rises into the air upon ignition and produces a burst of color or sound at or near the height of flight;
DD. "theatrical pyrotechnics articles" means a pyrotechnic device for professional use in the entertainment industry similar to permissible fireworks or consumer fireworks in chemical composition and construction but not intended and labeled for consumer use;
EE. "toy smoke device" means a small plastic or paper item containing no more than one hundred grams of pyrotechnic composition that produces white or colored smoke as the primary effect;
FF. "wheel" means a pyrotechnic device that is made to attach to a post or other surface and that revolves, producing a shower of color and sparks and sometimes a whistling effect and that may have one or more drivers, each of which contains no more than sixty grams of pyrotechnic composition and the total wheel contains no more than two hundred grams total pyrotechnic composition;
GG. "wholesaler" means a person, firm or corporation purchasing fireworks for resale to retailers; and
HH. "wildlands" means lands owned by the governing body of a county or municipality that are designated for public recreational purposes and that are covered wholly or in part by timber, brush or native grass."
SECTION 7. Section 60-2C-8.1 NMSA 1978 (being Laws 1997, Chapter 17, Section 9, as amended) is amended to read:
"60-2C-8.1. [EXTREME OR SEVERE DROUGHT CONDITIONS] NATIONAL FIRE DANGER RATING--RESTRICTED SALE AND USE.--
A. The governing body of a municipality may hold a hearing to determine if fireworks restrictions should be imposed within the boundaries of the incorporated municipality [affected by extreme or severe drought conditions] where the fire danger rating is deemed to be high, very high or extreme, as determined by the national fire danger rating system. The findings of the governing body shall be based on current [drought indices published by the national weather service and any other relevant information supplied by] fire danger ratings of the national fire danger rating system of the United States forest service.
B. Pursuant to any hearing under Subsection A of this section, the governing body of a municipality shall issue a proclamation declaring [extreme or severe drought conditions] fireworks restrictions within the boundaries of the incorporated municipality if the governing body determines [such conditions exist] that the fire danger rating is deemed to be high, very high or extreme, as determined by the national fire danger rating system. The governing body's proclamation
[(1) shall ban the sale and use of missile-type rockets, helicopters, aerial spinners, stick-type rockets and ground audible devices within the affected drought area; and
(2) shall give the governing body the power to:
(a) limit the use within its jurisdiction of any fireworks not listed in Paragraph (1) of this subsection to areas that are paved or barren or that have a readily accessible source of water for use by the homeowner or the general public;
(b) ban the use of all fireworks within wildlands in its jurisdiction, after consultation with the state forester; and
(c)] shall ban or restrict the sale or use, or both the sale and use, of [display] fireworks.
C. The municipal governing body's proclamation declaring [an extreme or severe drought condition] fireworks restrictions shall be issued no less than twenty days prior to a holiday for which fireworks may be sold. The proclamation shall explain restrictions on the sale or use of fireworks and permitted sales or uses of fireworks.
D. A municipal governing body's proclamation shall be effective for thirty days, and the governing body may issue succeeding proclamations if [extreme or severe drought conditions] the national fire danger ratings warrant. A proclamation may be modified or rescinded within its thirty-day period by the governing body upon conducting an emergency hearing to determine if [weather conditions] the national fire danger ratings have improved.
E. The governing body of a county may hold a hearing to determine if fireworks restrictions should be imposed within the unincorporated portions of the county [affected by extreme or severe drought conditions] where the fire danger rating is deemed to be high, very high or extreme, as determined by the national fire danger rating system. The findings of the governing body shall be based on current [drought indices published by the national weather service and any other relevant information supplied by] fire danger ratings of the national fire danger rating system of the United States forest service.
F. Pursuant to any hearing under Subsection E of this section, the governing body of a county shall issue a proclamation declaring [extreme or severe drought conditions] fireworks restrictions within the unincorporated portions of the county if the governing body determines [such conditions exist] that the fire danger rating is deemed to be high, very high or extreme, as determined by the national fire danger rating system. The governing body's proclamation
[(1) shall ban the sale and use of missile-type rockets, helicopters, aerial spinners, stick-type rockets and ground audible devices within the affected drought area; and
(2) shall give the governing body the power to:
(a) limit the use within its jurisdiction of any fireworks not listed in Paragraph (1) of this subsection to areas that are paved or barren or that have a readily accessible source of water for use by the homeowner or the general public;
(b) ban the use of all fireworks within wildlands in its jurisdiction, after consultation with the state forester; and
(c)] shall ban or restrict the sale or use, or both the sale and use, of [display] fireworks.
G. The county governing body's proclamation declaring [an extreme or severe drought condition] fireworks restrictions shall be issued no less than twenty days prior to a holiday for which fireworks may be sold. The proclamation shall explain restrictions on the sale [or] and use of fireworks and permitted sales [or] and uses of fireworks.
H. Except as otherwise provided in this subsection, a proclamation shall be effective for thirty days, and the county governing body may issue succeeding proclamations if [extreme or severe drought conditions] the national fire danger ratings warrant. A proclamation may be modified or rescinded within its thirty-day period by the governing body upon conducting an emergency hearing to determine if [weather conditions] the national fire danger ratings have improved."
SECTION 8. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.
- 18 -