46th legislature - STATE OF NEW MEXICO - first session, 2003

RELATING TO PUBLIC SAFETY; TRANSFERRING THE STATE FIRE MARSHAL AND THE FIREFIGHTER'S TRAINING ACADEMY TO THE DEPARTMENT OF PUBLIC SAFETY; INCREASING DISTRIBUTIONS TO THE FIRE PROTECTION FUND; PROVIDING FOR SUPPLEMENTAL DISTRIBUTIONS TO FIRE DEPARTMENTS AND DISTRICTS; AMENDING, REPEALING, ENACTING AND RECOMPILING SECTIONS OF THE NMSA 1978; MAKING AN APPROPRIATION.

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

Section 1. Section 8-8-9 NMSA 1978 (being Laws 1998, Chapter 108, Section 9) is amended to read:

"8-8-9. INSURANCE DIVISION.--

A. The director of the insurance division is the "superintendent of insurance" and shall have all the powers and duties prescribed to him in the New Mexico Insurance Code.

B. The insurance division shall consist of such bureaus as the superintendent of insurance determines for the orderly conduct of business [including the fire marshal bureau. The superintendent of insurance may organize the firefighter's training academy as part of the fire marshal bureau or may organize it as a separate bureau]."

Section 2. Section 9-19-4 NMSA 1978 (being Laws 1987, Chapter 254, Section 4, as amended) is amended to read:

"9-19-4. DEPARTMENT ESTABLISHED.--There is created in the executive branch the "department of public safety". The department shall be a cabinet department and shall consist of, but not be limited to, [five] six program divisions and one administrative division, as follows:

A. the New Mexico state police division;

B. the special investigations division;

C. the training and recruiting division;

D. the technical and emergency support division;

E. the administrative services division; [and]

F. the motor transportation division; and

G. the fire marshal division, which may include the firefighter's training academy."

Section 3. Section 59A-52-1 NMSA 1978 (being Laws 1984, Chapter 127, Section 947, as amended) is amended to read:

"59A-52-1. STATE FIRE MARSHAL CREATED.--The position of "state fire marshal" is created as the [bureau chief] director of the fire marshal [bureau] division of the [insurance division] department of public safety."

Section 4. Section 59A-52-3 NMSA 1978 (being Laws 1984, Chapter 127, Section 949, as amended) is amended to read:

"59A-52-3. DEPUTY STATE FIRE MARSHAL AND OTHER

EMPLOYEES--QUALIFICATIONS OF DEPUTY.--The state fire marshal may, with the approval of the [superintendent] secretary of public safety, appoint or remove a deputy state fire marshal and other employees to assist in the execution of the state fire marshal's duties; provided, however, that the state fire marshal and any deputy state fire marshal [appointed by the state fire marshal] shall be experienced in fire prevention and fire fighting and have completed a course of training by actual attendance at a fire-training school."

Section 5. Section 59A-52-15 NMSA 1978 (being Laws 1984, Chapter 127, Section 961) is amended to read:

"59A-52-15. FIRE PREVENTION--PUBLIC OCCUPANCIES REGULATIONS.--

A. For prevention and control of fires the state fire [board] marshal shall formulate, adopt and promulgate and amend or revise [regulations] rules for fire prevention and safe conduct or use of public occupancies and rules concerning the sale, servicing or use of fire safety, prevention, detection or suppression equipment or materials. For the purposes of this provision, "public occupancies" consist of places of assembly, educational occupancies, institutional occupancies, residential occupancies consisting of four [(4)] or more family units, mercantile occupancies, office occupancies, industrial occupancies, storage occupancies and miscellaneous structures consisting of towers, underground structures and windowless buildings and all buildings owned or occupied by the state government or any political subdivision thereof or by municipal governments [and regulations concerning the sale, servicing or use of fire safety, prevention, detection or suppression equipment or materials]. The [regulations] rules shall be adopted after notice and public hearing. The notice shall be entitled "notice of proposed [rule making] rulemaking" and it shall contain the date of the hearing and shall state the subject of the hearing. A copy of the notice, along with a copy of the proposed [regulations] rules, shall be filed with the supreme court librarian at least twenty [(20)] days prior to the hearing. In addition, the [board] state fire marshal shall make available for inspection at its offices a copy of the proposed [regulations] rules.

B. The rules [and regulations] shall follow nationwide standards, except in the area of life safety codes, [which] that shall be compatible with the Uniform Building Code, as revised from time to time, issued by the international conference of building officials.

C. The rules [and regulations] shall allow reasonable provision under which facilities in service prior to the effective date of the rules [and regulations] and not in strict conformity therewith may be continued in service. [Noncomforming] Nonconforming facilities in service prior to the adoption of [regulations which] rules that are found by the state fire marshal to constitute a distinct hazard to life or property shall not be exempt from [regulations] rules nor permitted to continue in service."

Section 6. Section 59A-52-16 NMSA 1978 (being Laws 1984, Chapter 127, Section 962, as amended) is amended to read:

"59A-52-16. FLAMMABLE LIQUIDS RULES--NATIONWIDE STANDARDS--SAVINGS CLAUSE--DEFINITION.--

A. The [commission] state fire marshal shall adopt rules for the safe vehicular transportation, storage, handling and use of flammable and combustible liquids; provided that the [commission] state fire marshal shall not adopt any rule conflicting with the jurisdiction of the department of environment over the regulation of storage tanks pursuant to the Hazardous Waste Act or the Ground Water Protection Act.

B. The rules shall be in keeping with the latest generally recognized safety standards for flammable and combustible liquids. Rules in substantial conformity with the published standards of the national fire protection association for vehicular transportation, storage, handling and use of flammable and combustible liquids shall be deemed to be in substantial conformity with the generally accepted and recognized standards of safety concerning the same subject matter.

C. The rules shall include reasonable provisions under which facilities in service prior to the effective date of the rules and not in strict conformity therewith may be continued in service. Nonconforming facilities in service prior to the adoption of the rules that are found by the state fire marshal to constitute a distinct hazard to life or property may not be excepted from the rules or permitted to continue in service. For guidance in enforcement, the rules may delineate those types of nonconformities that should be considered distinctly hazardous and those nonconformities that should be evaluated in [the] light of local conditions. If the need for compliance with any rule is conditioned on local factors, the rules shall provide that reasonable notice be given to the proprietor of the facility affected of intention to evaluate the need for compliance and of the time and place at which he may appear and offer evidence thereon.

D. As used in Chapter 59A, Article 52 NMSA 1978, the term "flammable liquid" [shall mean] means any liquid having a flash point below one hundred degrees Fahrenheit, and "combustible liquid" [shall mean] means any liquid having a flash point at or above one hundred degrees fahrenheit and below two hundred degrees fahrenheit."

Section 7. Section 59A-52-21 NMSA 1978 (being Laws 1984, Chapter 127, Section 967, as amended) is amended to read:

"59A-52-21. ADMINISTRATIVE APPEAL OF ORDERS AND MODIFICATIONS.--Any person aggrieved by [any] an order of the state fire marshal, his deputy or authorized officer or his designated agent may appeal to the [commission] secretary of public safety within ten days from the date of the service of such order. The [commission] secretary shall hear such party within twenty days after receipt of an appeal request and shall give not less than ten days' written notice of the hearing. Within fifteen days after such hearing, the [commission] secretary shall file its decision and, unless by its authority the order is revoked or modified, it shall be complied with within the time fixed in the decision, with such time to be not less than thirty days."

Section 8. Section 59A-52-22 NMSA 1978 (being Laws 1984, Chapter 127, Section 968, as amended) is amended to read:

"59A-52-22. JUDICIAL REVIEW OF ORDER.--A person aggrieved by a decision of the [state fire marshal] secretary of public safety may appeal to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978."

Section 9. Section 59A-52-23 NMSA 1978 (being Laws 1984, Chapter 127, Section 969, as amended) is amended to read:

"59A-52-23. ENFORCEMENT OF CEASE AND DESIST ORDERS.--After expiration of time for an administrative appeal, and if no such appeal has been taken, the state fire marshal may commence an action in the district court for Santa Fe county to enforce the cease and desist order by injunction or other appropriate remedy as the district court may adjudge. The [commission] secretary of public safety may likewise commence an action in the district court for Santa Fe county to enforce [its] his decision rendered on appeal from the cease and desist order of the state fire marshal."

Section 10. Section 59A-53-6 NMSA 1978 (being Laws 1984, Chapter 127, Section 977, as amended) is amended to read:

"59A-53-6. APPEAL AND REVIEW OF DETERMINATION.--The marshal shall promptly notify each incorporated city, town and village and county fire district affected of his determination of needs, and an incorporated city, town or village or county fire district may appeal from the determination of the marshal to the [commission] secretary of public safety within ten days after the determination of needs. The [commission] secretary shall review the determination of the marshal in such informal and summary proceedings as [it] the secretary deems proper and shall certify to the state treasurer annually, on or before the last day of June, the results of all appeals from the determinations of the marshal. The certification by the [commission] secretary, or by the marshal if no appeal is taken, shall be final and binding on all concerned and not subject to any further review."

Section 11. Section 59A-53-7 NMSA 1978 (being Laws 1984, Chapter 127, Section 978, as amended) is amended to read:

"59A-53-7. DISTRIBUTION OF FIRE PROTECTION FUND.--

A. Annually on or before the last day of July, the state treasurer shall distribute from the money in the fire protection fund, to each incorporated municipality and to each county fire district, the amount the marshal or the [commission] secretary of public safety, as the case may be, has certified to him. Payment shall be made to the treasurer of any incorporated municipality and to the county treasurer of the county in which any county fire district is located for credit to the county fire district.

B. The state treasurer is authorized to redirect a distribution to the New Mexico finance authority in the amount the marshal or the [commission] secretary, as the case may be, has certified to him pursuant to an ordinance or a resolution passed by the municipality or county and a written agreement of the municipality or county in which any county fire district is located and the New Mexico finance authority."

Section 12. Section 59A-53-15 NMSA 1978 (being Laws 1984, Chapter 127, Section 986, as amended) is amended to read:

"59A-53-15. APPROPRIATION FROM STATE TREASURY.--All money [which] that from time to time is deposited in the state treasury and credited to the fire protection fund is appropriated to the [corporation commission for the use of the marshal for the purposes set out in Chapter 59A, Article 53 NMSA 1978 and shall be distributed by the state treasurer and expended as provided in that article. Hereafter, all sums in excess of one hundred thousand dollars ($100,000) for pro rata distribution plus seventy-five percent of the approved state fire marshal budget for the succeeding fiscal year plus the amount certified to be distributed as provided in that article shall be credited to the general fund on or before June 30 of each fiscal year] marshal to carry out the provisions of the Fire Protection Fund Law."

Section 13. A new section of the Fire Protection Fund Law is enacted to read:

"[NEW MATERIAL] SUPPLEMENTAL DISTRIBUTION.--

A. The marshal shall adopt and promulgate rules to govern the distribution of money in the fire protection fund in excess of:

(1) the annual amount pursuant to Sections 59A-53-4 and 59A-53-5 NMSA 1978;

(2) the amount required for administration of the fire marshal division of the department of public safety and the firefighter's training academy; and

(3) the amount required for volunteer firefighter retirement.

B. The supplemental distribution provided for in Subsection A of this section may be used:

(1) to improve fire department and fire district insurance ratings;

(2) to foster long-range planning goals;

(3) to augment the annual distribution; or

(4) for any other purpose allowed by the Fire Protection Fund Law.

C. The marshal may amend the rules annually to change the purpose of the year's supplemental distribution.

D. The supplemental distribution shall be distributed with the annual distribution provided for in Sections 59A-53-4 and 59A-53-5 NMSA 1978."

Section 14. TEMPORARY PROVISION--TRANSFERS OF PERSONNEL, PROPERTY, CONTRACTS AND REFERENCES IN LAW.--

A. On July 1, 2003, all personnel and all money, appropriations, records, equipment, furniture, supplies and other property belonging to the fire marshal bureau and the firefighter's training academy of the public regulation commission are transferred to the fire marshal division and the firefighter training academy of the department of public safety.

B. On July 1, 2003, all existing contracts and other obligations of the fire marshal bureau and the firefighter's training academy of the public regulation commission are transferred to the fire marshal division and the firefighter's training academy of the department of public safety. All rules promulgated for the state fire marshal's office or the fire marshal bureau and the firefighter's training academy of the public regulation commission shall be binding on the state fire marshal division or the firefighter's training academy of the department of public safety.

C. On July 1, 2003, references in law to the state fire marshal or the fire marshal bureau of the public regulation commission shall be deemed to be references to the fire marshal division of the department of public safety. All references in law to the fire marshal bureau shall be deemed to be references to the secretary of public safety. All references in law to the firefighter's training academy of the public regulation commission shall be deemed to be references to the firefighter's training academy of the department of public safety.

Section 15. TEMPORARY PROVISION--COMPILER'S INSTRUCTIONS.--The compiler is instructed to recompile Chapter 59A, Articles 52 and 53 NMSA 1978 relating to the state fire marshal and the fire protection fund to the appropriate chapter of the New Mexico statutes annotated that conforms with the provisions of this act.

Section 16. REPEAL.--Sections 59A-52-2, 59A-52-4 and

59A-52-17 NMSA 1978 (being Laws 1984, Chapter 127, Sections 948, 950 and 963, as amended) are repealed.

Section 17. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2003.