SENATE BILL 300

50th legislature - STATE OF NEW MEXICO - second session, 2012

INTRODUCED BY

Phil A. Griego

AN ACT

RELATING TO PUBLIC SAFETY; AMENDING THE FIREWORKS LICENSING AND SAFETY ACT TO ALLOW THE FORESTRY DIVISION OF THE ENERGY, MINERALS AND NATURAL RESOURCES DEPARTMENT TO BAN THE SALE AND USE OF FIREWORKS IN EXTREME DROUGHT CONDITIONS; AMENDING THE FOREST CONSERVATION ACT TO GIVE THE FORESTRY DIVISION SPECIFIC RULEMAKING AUTHORITY ON REGULATION OF FIREWORKS; DECLARING AN EMERGENCY.

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

     SECTION 1. 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--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. 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 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 within the boundaries of the incorporated municipality if the governing body determines such conditions exist. The governing body's proclamation shall:

                (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) ban or restrict the sale or use of display fireworks.

          C. The municipal governing body's proclamation declaring an extreme or severe drought condition 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 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 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. 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 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 within the unincorporated portions of the county if the governing body determines such conditions exist. The governing body's proclamation shall:

                (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) ban or restrict the sale or use of display fireworks.

          G. The county governing body's proclamation declaring an extreme or severe drought condition 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.

          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 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 have improved.

          I. In the absence of a proclamation by a county as set forth in this section, the forestry division of the energy, minerals and natural resources department is authorized to make and enforce rules imposing fireworks restrictions on all nonfederal, nonmunicipal lands in the state as set forth in Section 68-2-16 NMSA 1978. In adopting rules, the forestry division shall:

                (1) limit fireworks restrictions to specific geographical areas within the state where an extreme fire danger exists;

                (2) determine an extreme fire danger by using the energy release component of the national fire danger rating system;

                (3) designate the southwest coordination center as the source of information for the national fire danger rating system;

                (4) use the ninety-seventh percentile of energy release component data set forth in a percentile frequency distribution as the breakpoint for determining whether an extreme fire danger exists;

                (5) only be authorized to adopt and enforce rules imposing fireworks restrictions if the value of the energy release component data reaches the ninety-seventh percentile or greater at a particular point in time in a specific geographical area;

                (6) set forth fireworks restrictions that completely or partially ban the sale and use of fireworks;

                (7) not enforce its rules in a county where fireworks restrictions subsequently imposed by a county are more restrictive than the rules imposed by the forestry division;

                (8) provide that the rules shall be in effect for no longer than thirty days and be automatically repealed at the end of this time period;

                (9) obtain the governor's written approval of the final rules prior to the rules becoming effective, and if the governor disapproves of the final rules, the forestry division shall withdraw the rules; and

                (10) modify or rescind the rules by emergency rulemaking, or the governor may modify or rescind the rules by executive order, within twenty-four hours while the rules are in effect if an extreme fire danger for a specific geographical area no longer exists."

     SECTION 2. Section 68-2-16 NMSA 1978 (being Laws 1959, Chapter 122, Section 11, as amended) is amended to read:

     "68-2-16. RULES AND REGULATIONS OF DIVISION.--The forestry division is authorized to make and enforce rules and regulations not in conflict with any law now in force as it deems necessary for the prevention and suppression of forest or brush fires and for the control of forest pests and for the application of commercial forest practices within the state. The rulemaking power includes but is not limited to the requiring of registration of sawmills, placing restrictions on fireworks in specific geographical areas within the state where extreme drought conditions exist pursuant to the Fireworks Licensing and Safety Act, declaring of designated areas to be high hazard fire areas and closing them to entry by the general public for reasonable periods and requiring commercial forest vegetative types to be harvested in such manner as to support forest practices that maintain and enhance the economic benefits of forests and forest resources to New Mexico. Rules and regulations shall be provided to all interested parties upon request. Nothing in the Forest Conservation Act shall prevent a landowner [hereafter] from converting forest vegetative types to nonforest vegetative types for such purposes as range, wildlife habitat, farming, surface mining or subdivision development; provided, however, any slash resulting from such conversion shall be treated in a manner that will minimize the spread of forest fires and the possibility of insect epidemic."

     SECTION 3. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.

- 8 -