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

RELATING TO PUBLIC SAFETY; CREATING THE HOMELAND SECURITY DEPARTMENT; PROVIDING POWERS AND DUTIES; TRANSFERRING THE FIRE MARSHAL BUREAU AND THE FIREFIGHTER TRAINING ACADEMY FROM THE PUBLIC REGULATION COMMISSION TO THE DEPARTMENT; TRANSFERRING OTHER PUBLIC SAFETY AND EMERGENCY PREPAREDNESS AND RESPONSE FUNCTIONS; AMENDING, REPEALING, ENACTING AND RECOMPILING SECTIONS OF THE NMSA 1978; MAKING AN APPROPRIATION; DECLARING AN EMERGENCY.

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

Section 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 11 of this act may be cited as the "Homeland Security Department Act".

Section 2. [NEW MATERIAL] PURPOSE.--The purpose of the Homeland Security Department Act is to establish a unified emergency preparedness and response to terrorism system and to develop counterterrorism strategies.

Section 3. [NEW MATERIAL] DEFINITIONS.--As used in the Homeland Security Department Act:

A. "department" means the homeland security department; and

B. "secretary" means the secretary of homeland security.

Section 4. [NEW MATERIAL] DEPARTMENT CREATED.--The "homeland security department" is created as a cabinet-level department in the executive branch.

Section 5. [NEW MATERIAL] SECRETARY OF HOMELAND SECURITY.--

A. The chief executive and administrative officer of the department is the "secretary of homeland security". The secretary shall be appointed by the governor with the consent of the senate. The secretary shall hold that office at the pleasure of the governor and shall serve in the executive cabinet.

B. An appointed secretary shall serve and have all of the duties, responsibilities and authority of that office during the period of time prior to final action by the senate confirming or rejecting his appointment.

Section 6. [NEW MATERIAL] SECRETARY--DUTIES AND GENERAL POWERS.--

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

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

(1) except as otherwise provided in the Homeland Security 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 secretary deems necessary and appropriate, clearly delineating such delegated authority and the limitations thereto;

(3) organize the department into those organizational units the secretary 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 secretary's duties;

(5) purchase or lease personal property, purchase services and lease real property for use by the department as the secretary deems necessary, subject to approval of state agencies if any is required;

(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 the administration;

(8) prepare an annual budget of the department;

(9) provide cooperation, at the request of heads of administratively attached agencies and adjunct agencies, in order to:

(a) minimize or eliminate duplication of services and jurisdictional conflicts;

(b) coordinate activities and resolve problems of mutual concern; and

(c) resolve by agreement the manner and extent to which the department shall provide budgeting, record keeping and related clerical assistance to administratively attached agencies; and

(10) appoint, with the governor's consent, a "director" for each division. These appointed positions are exempt from the provisions of the Personnel Act. Persons appointed to these positions shall serve at the pleasure of the secretary.

C. The secretary 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 secretary may make and adopt such reasonable and procedural rules as may be necessary to carry out the duties of the department and its divisions. A rule promulgated by the director of any division in carrying out the functions and duties of the division shall not be effective until approved by the secretary unless otherwise provided by statute. Unless otherwise provided by statute, a rule affecting any person or agency outside the department shall not be adopted, amended or repealed without a public hearing on the proposed action before the secretary or a hearing officer designated by him. 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 in the state 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] ORGANIZATIONAL UNITS OF THE 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 secretary, and he shall retain the final decision-making authority and responsibility for the administration of any laws as provided in Subsection B of Section 6 of the Homeland Security 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 8. [NEW MATERIAL] DIRECTORS.--The secretary shall appoint with the approval of the governor "directors" of divisions established within the department. The positions so appointed are exempt from the Personnel Act.

Section 9. [NEW MATERIAL] BUREAUS--CHIEFS.--The secretary shall establish within each division such "bureaus" as he deems necessary to carry out the provisions of the Homeland Security Department Act. He shall employ a "chief" to be the administrative head of each bureau. The chief and all subsidiary employees of the department shall be covered by the Personnel Act unless otherwise provided by law.

Section 10. [NEW MATERIAL] ADVISORY COMMITTEES.--

A. Advisory committees may be created. "Advisory" means furnishing advice, gathering information, making recommendations and performing such other activities as may be instructed or delegated and as may be necessary to fulfill advisory functions or to comply with federal or private funding requirements and does not extend to administering a program or function or setting policy unless specified by law. Advisory committees shall be appointed in accordance with the provisions of the Executive Reorganization Act.

B. All members of advisory committees appointed under the authority of this section shall receive as their sole remuneration for services as members those amounts authorized by the Per Diem and Mileage Act.

Section 11. [NEW MATERIAL] COOPERATION WITH THE FEDERAL GOVERNMENT--AUTHORITY OF SECRETARY--SINGLE STATE AGENCY STATUS.--

A. The department is authorized to cooperate with the federal government in the administration of homeland security, emergency preparedness and emergency response programs in which financial or other participation by the federal government is authorized or mandated under state or federal laws or rules. The secretary may enter into agreements with agencies of the federal government to implement homeland security, emergency preparedness and emergency response programs subject to availability of appropriated state funds and any provisions of state laws applicable to such agreements or participation by the state.

B. The governor or the secretary may by appropriate order designate the department or any organizational unit of the department as the single state agency for the administration of any homeland security, emergency preparedness or emergency response program when that designation is a condition of federal financial or other participation in the program under applicable federal law or rule. Whether or not a federal condition exists, the governor may designate the department or any organizational unit of the department as the single state agency for the administration of any homeland security, emergency preparedness or emergency response program. The designation of a single state agency under the authority granted in this section shall not be made in contravention of state law.

Section 12. 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 firefighters training academy as part of the fire marshal bureau or may organize it as a separate bureau]."

Section 13. 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 program divisions and one administrative division, as follows] include:

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."

Section 14. Section 9-19-7 NMSA 1978 (being Laws 1987, Chapter 254, Section 7, as amended) is amended to read:

"9-19-7. ORGANIZATIONAL UNITS OF DEPARTMENT--POWERS AND DUTIES SPECIFIED BY LAW--ACCESS TO INFORMATION.--

A. The organizational units of the department and the officers of those units specified by law shall have all 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 secretary, who shall retain the final decision-making authority and responsibility for the administration of any such laws as provided in Subsection B of Section 9-19-6 NMSA 1978. 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.

B. The New Mexico state police division shall consist of the commissioned officers and civilian personnel, including all communications equipment operators, of the New Mexico state police uniform division and the commissioned officers and civilian personnel of the New Mexico state police criminal division and such other personnel as may be assigned by the secretary or by the governor pursuant to an executive order as authorized in the Department of Public Safety Act.

C. The special investigations division shall consist of the staff of the governor's organized crime prevention commission, [the enforcement personnel of the department of] alcohol beverage control enforcement personnel and such other personnel as may be assigned by the secretary or by the governor pursuant to an executive order as authorized in the Department of Public Safety Act. The division is responsible for the enforcement of the Bingo and Raffle Act and the Liquor Control Act.

D. The technical [and emergency] support division shall consist of [the emergency planning and coordination bureau of the department, the personnel of the hazardous materials emergency response program or plan and] such [other] functions as communications, crime laboratory and records.

E. The training and recruiting division shall consist of the personnel of the New Mexico law enforcement academy, the New Mexico state police training division and all other training personnel and functions of the department as the secretary may transfer to this division.

F. The administrative services division shall consist of the administrative services and services divisions of the New Mexico state police and those administrative support personnel of the other existing departments, divisions or offices as the secretary deems necessary."

Section 15. Section 12-10-2 NMSA 1978 (being Laws 1959, Chapter 190, Section 2, as amended) is amended to read:

"12-10-2. PURPOSE.--The purpose of the State Civil Emergency Preparedness Act is:

A. to [create the] provide state emergency planning and coordination [bureau of the department of public safety] and to authorize the creation of local offices of civil emergency preparedness in the political subdivisions of the state;

B. to confer upon the governor and upon the governing bodies of the state civil emergency preparedness powers;

C. to provide a civil emergency preparedness plan for the protection of life and property adequate to cope with disasters resulting from acts of war or sabotage or from natural or man-made causes other than acts of war;

D. to provide for coordination of all civil emergency preparedness functions of this state with the comparable functions of the federal government, other states and localities and of private agencies;

E. to initiate programs to render aid in the emergency restoration of facilities, utilities and other installations essential to the safety and general welfare of the public; and

F. to provide for assistance and care for persons displaced, left homeless or otherwise victims of disaster or war conditions."

Section 16. Section 12-10-3 NMSA 1978 (being Laws 1969, Chapter 33, Section 1, as amended) is amended to read:

"12-10-3. [EMERGENCY PLANNING AND COORDINATION BUREAU] GOVERNOR'S AUTHORIZED REPRESENTATIVE.--

[A. There is created the "emergency planning and coordination bureau" of the department of public safety.

B. The director of the technical and emergency support division of the department of public safety] The homeland security department shall be responsible to the [secretary] governor for carrying out the program for civil emergency preparedness authorized by law, and the secretary of homeland security shall serve as the governor's authorized representative at the discretion of the governor. The [emergency planning and coordination bureau chief] homeland security department shall direct and coordinate the civil emergency preparedness activities of all state departments, agencies and political subdivisions and shall maintain liaison with and cooperate with civil emergency preparedness agencies and organizations of other states and of the federal government."

Section 17. Section 12-10-4 NMSA 1978 (being Laws 1959, Chapter 190, Section 5, as amended) is amended to read:

"12-10-4. CIVIL EMERGENCY PREPAREDNESS--POWERS OF THE

GOVERNOR.--

A. The governor shall have general direction and control of the activities of the [emergency planning and coordination bureau] homeland security department and shall be responsible for carrying out the provisions of the State Civil Emergency Preparedness 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 civil emergency preparedness functions within the state.

B. In carrying out the provisions of the State Civil Emergency Preparedness Act, the governor is authorized to:

(1) cooperate with the federal government and agree to carry out civil emergency preparedness 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 civil emergency preparedness of the state and nation;

(2) issue, amend or rescind the necessary orders [regulations] and procedures to carry out the provisions of the State Civil Emergency Preparedness 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, for lodging, sheltering, health care, food, any 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 plan and program for the civil emergency preparedness of the state and to integrate the state plan and program with the civil emergency preparedness plans and programs of the federal government and other states and to coordinate the preparation of plans and programs for civil emergency preparedness 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."

Section 18. Section 12-10-5 NMSA 1978 (being Laws 1959, Chapter 190, Section 6, as amended) is amended to read:

"12-10-5. LOCAL CIVIL EMERGENCY PREPAREDNESS.--The governing bodies of the political subdivisions of the state are responsible for the civil emergency preparedness of their respective jurisdictions. Each political subdivision is authorized to establish, by ordinance or resolution, a local office of civil emergency preparedness as an agency of the local government and responsible to the governing body, in accordance with the state civil emergency preparedness plan and program. Every local coordinator of civil emergency preparedness shall be appointed by the governing body, subject to the approval of the [state director] secretary of homeland security, and such local coordinator shall have direct responsibility for carrying out the civil emergency preparedness program of the political subdivision. He shall coordinate the civil emergency preparedness activities of all local governmental departments and agencies and shall maintain liaison with and cooperate with civil preparedness agencies and organizations of other political subdivisions and of the state government. Each local organization shall perform civil emergency preparedness functions within the territorial limits of the political subdivision within which it is organized."

Section 19. Section 12-10-6 NMSA 1978 (being Laws 1959, Chapter 190, Section 7, as amended) is amended to read:

"12-10-6. MUTUAL AID AGREEMENTS.--Each political subdivision may, in cooperation with other public and private agencies within the state, enter into mutual aid agreements for reciprocal civil emergency preparedness aid and assistance. [Such] The agreements shall be consistent with the state civil emergency preparedness plan, and in time of emergency it shall be the duty of each local civil emergency preparedness organization to render assistance within [their] its capabilities and in accordance with the provisions of the program and plan promulgated by the [civil emergency preparedness division] homeland security department."

Section 20. Section 12-10-7 NMSA 1978 (being Laws 1959, Chapter 190, Section 8, as amended) is amended to read:

"12-10-7. AUTHORITY TO MAKE APPROPRIATIONS AND ACCEPT AID.--

A. Each political subdivision of the state shall have the power to make appropriations in the manner prescribed by law and, subject to the limitations of the law, for the payment of expenses of civil emergency preparedness.

B. Whenever the federal government or any agency or officer [thereof] of the federal government shall offer to the state or any political subdivision [thereof] of the state services, equipment, supplies, materials or funds by way of gift, grant or loan for purposes of civil emergency preparedness, the state, acting through the governor, or the political subdivision, acting with the consent of the governor, may accept the offer and may authorize any officer of the state or of the political subdivision to receive the aid and assistance.

C. Whenever any private person, firm or corporation shall offer to the state or to any political subdivision [thereof] of the state any aid or assistance for civil emergency preparedness, the state or the political subdivision shall be authorized to accept the aid or assistance, subject to the provisions of this section."

Section 21. Section 12-10-9 NMSA 1978 (being Laws 1959, Chapter 190, Section 9, as amended) is amended to read:

"12-10-9. EXISTING SERVICES AND FACILITIES TO BE UTILIZED BY AGENCY.--The governor, the [director of the technical and emergency support division of the department of public safety] secretary of homeland security and the governing bodies of the political subdivisions of the state are directed to [utilize] use, in carrying out the provisions of the State Civil Emergency Preparedness Act, the services, equipment, supplies and facilities of existing departments, offices and agencies of the state and of the political subdivisions [thereof] of the state to the maximum extent practicable, and the officers and personnel of all such departments, offices and agencies [thereof] are directed to cooperate with and extend their services and facilities to the governor or to the [director] secretary of homeland security or to the local [coordiators] coordinators of civil emergency preparedness throughout the state upon request."

Section 22. Section 12-10-10 NMSA 1978 (being Laws 1959, Chapter 190, Section 10, as amended) is amended to read:

"12-10-10. ENFORCEMENT OF EXECUTIVE ORDERS AND [REGULATIONS] RULES.--

A. It is the duty of all political subdivisions of the state and their coordinators of the civil emergency preparedness programs appointed pursuant to the provisions of the State Civil Emergency Preparedness Act to comply with and enforce all executive orders and [regulations] rules made by the governor or under his authority pursuant to law.

B. Political subdivisions shall meet all state and federal requirements before becoming eligible to participate in state and federal civil emergency preparedness assistance programs. They must comply with all state and federal [regulations] rules and procedures and shall be removed from participation in [said] the assistance programs by the [director] secretary of homeland security for failure to comply with such [regulations] rules and procedures or to maintain their eligibility in accordance with prescribed requirements."

Section 23. Section 12-10-13 NMSA 1978 (being Laws 2002, Chapter 83, Section 4) is amended to read:

"12-10-13. IN-STATE LICENSE HOLDERS--POWERS--DUTIES.--During an emergency, a person who holds a license, certificate or other permit that is issued by the state of New Mexico and that evidences the meeting of qualifications for professional, mechanical or other skills may be credentialed, if appropriate and approved by the department of health or the homeland security department [of public safety], to render aid involving those skills to meet a declared emergency, and shall be considered a public employee for the purposes of the Tort Claims Act when approved to perform [such] those duties."

Section 24. Section 59A-52-1 NMSA 1978 (being Laws 1984, Chapter 127, Section 947, as amended) is recompiled as Section 12-16-1 NMSA 1978 and is amended to read:

"12-16-1. STATE FIRE MARSHAL CREATED.--The position of "state fire marshal" is created as the [bureau chief of the fire marshal bureau of the insurance] director of the fire services division of the homeland security department."

Section 25. Section 59A-52-3 NMSA 1978 (being Laws 1984, Chapter 127, Section 949, as amended) is recompiled as Section 12-16-2 NMSA 1978 and is amended to read:

"12-16-2. DEPUTY STATE FIRE MARSHAL AND OTHER EMPLOYEES--QUALIFICATIONS OF DEPUTY.--The state fire marshal may, with the approval of the [superintendent] secretary of homeland security, appoint or remove a deputy state fire marshal and other employees to assist in the execution of the [marshal's] duties of the fire services division of the homeland security department; 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 26. Section 59A-52-5 NMSA 1978 (being Laws 1984, Chapter 127, Section 951) is recompiled as Section 12-16-3 NMSA 1978 and is amended to read:

"12-16-3. COOPERATION WITH OTHER AGENCIES FOR PREVENTION AND CONTROL OF FIRES.--The [marshal] fire services division of the homeland security department is authorized to cooperate with all other groups, organizations and agencies in this state or in other states in the collection, dissemination and evaluation of information, statistics and suggestions for prevention or control of fires."

Section 27. Section 59A-52-6 NMSA 1978 (being Laws 1984, Chapter 127, Section 952) is recompiled as Section 12-16-4 NMSA 1978 and is amended to read:

"12-16-4. FIRE PROTECTION TRAINING PROGRAMS.--The [marshal] fire services division of the homeland security department shall establish and conduct training programs throughout the state for demonstrating and teaching firemen proper methods of preventing and extinguishing fires. The [marshal] division shall have available, from funds included in the general appropriation act of each legislature, money for use by [him] the division in establishing and conducting such training programs."

Section 28. Section 59A-52-7 NMSA 1978 (being Laws 1984, Chapter 127, Section 953) is recompiled as Section 12-16-5 NMSA 1978 and is amended to read:

"12-16-5. TEACHING FIRE PREVENTION AND CONTROL IN PUBLIC SCHOOLS--RULES FOR SCHOOL BUILDING EVACUATION.--The [marshal] fire services division of the homeland security department shall prescribe reasonable rules [and regulations] and programs for the teaching to all school children in the state, whether in public or private schools, the proper methods of fire prevention and control. Such rules [regulations] and programs shall be submitted to the state department of public education on or before August [first] 1 of each year. Among other things, such rules [regulations] and programs shall prescribe drills for evacuating school buildings."

Section 29. Section 59A-52-8 NMSA 1978 (being Laws 1984, Chapter 127, Section 954) is recompiled as Section 12-16-6 NMSA 1978 and is amended to read:

"12-16-6. INVESTIGATION OF FIRE HAZARDS--ABATEMENT.--The [marshal] fire services division of the homeland security department is authorized to make investigations [or require his deputy to make investigations] and reports of existing conditions in the state [which] that are fire hazards, and to make reasonable orders for the alleviation of such situations as [he may deem] the division deems necessary. If the orders of the [marshal] division are not carried out by persons to whom they are directed, [he] the division shall institute proper proceedings under municipal ordinances or state laws to require compliance with [his] the division's orders, as [he may deem] it deems necessary."

Section 30. Section 59A-52-9 NMSA 1978 (being Laws 1984, Chapter 127, Section 955) is recompiled as Section 12-16-7 NMSA 1978 and is amended to read:

"12-16-7. MAY ENTER UPON PREMISES.--The [marshal, his deputy, his authorized officer or] fire services division of the homeland security department or its designated agent shall have authority at all normal hours of operation to enter in and upon all buildings and premises subject to [this article] Chapter 12, Article 16 NMSA 1978 for the purpose of examination and inspection."

Section 31. Section 59A-52-10 NMSA 1978 (being Laws 1984, Chapter 127, Section 956) is recompiled as Section 12-16-8 NMSA 1978 and is amended to read:

"12-16-8. INVESTIGATION OF FIRES AND EXPLOSIONS--HEARINGS--USE OF STATE POLICE LABORATORY.--The [marshal or his deputies or employees are authorized to] fire services division of the homeland security department may make investigations deemed necessary of any fire or explosion, or attempt to cause any fire or explosion in the state, and [to] require reports from [his] division deputies concerning all fires and explosions in their districts. For the purpose of such investigations, the [marshal and his deputies or designated persons are authorized to] division may conduct [hearing] hearings, subpoena witnesses, take testimony and enter upon and examine any building or premises where any fire or explosion or attempt to cause a fire or explosion [shall have] has occurred, or which at the time [may be] is burning. The [marshal or his deputies] division or a designated [persons shall also have] person has the power to cause to be produced [before them] such papers as [they may require] necessary in making such examination. In addition, the [marshal or his deputies] division or designated [persons] person may, in [their] his discretion, take full control and custody of such buildings [and premises, and place such person in charge thereof as they may deem proper] until [their] the examination and investigation is completed. For evaluation of the evidence, the [marshal] division shall have access to the facilities and personnel of the state police laboratory, and the [executive head of such] laboratory shall cooperate fully with the [marshal] division."

Section 32. Section 59A-52-11 NMSA 1978 (being Laws 1984, Chapter 127, Section 957) is recompiled as Section 12-16-9 NMSA 1978 and is amended to read:

"12-16-9. WITNESSES--PER DIEM AND MILEAGE.--Witnesses or persons subpoenaed [under this article] pursuant to Chapter 12, Article 16 NMSA 1978 shall be paid as to time and expense [from the fire marshal's fund] at per diem and mileage rates on the same bases and at the same rates as currently apply as to state employees in general."

Section 33. Section 59A-52-12 NMSA 1978 (being Laws 1984, Chapter 127, Section 958) is recompiled as Section 12-16-10 NMSA 1978 and is amended to read:

"12-16-10. RECORDS OF FIRES OPEN TO PUBLIC.--The [marshal] fire services division of the homeland security department shall keep open to public inspection, at reasonable hours, all records of fires occurring within the state."

Section 34. Section 59A-52-13 NMSA 1978 (being Laws 1984, Chapter 127, Section 959) is recompiled as Section 12-16-11 NMSA 1978 and is amended to read:

"12-16-11. TRANSMITTAL OF EVIDENCE INDICATING CRIMINAL ACTS.--The [marshal] fire services division of the homeland security department shall furnish to the proper law enforcement officers any evidence [he may discover] it discovers in [his] its investigations [which] that indicates criminal acts."

Section 35. Section 59A-52-14 NMSA 1978 (being Laws 1984, Chapter 127, Section 960) is recompiled as Section 12-16-12 NMSA 1978 and is amended to read:

"12-16-12. APPROPRIATIONS.--For the purposes of [this article] Chapter 12, Article 16 NMSA 1978, an appropriation shall be included in the general appropriation act of each legislature, the appropriation to be made from the fire protection fund, which funds are to be paid out by the secretary of finance and administration on vouchers signed by the state fire marshal or his authorized representative."

Section 36. Section 59A-52-15 NMSA 1978 (being Laws 1984, Chapter 127, Section 961) is recompiled as Section 12-16-13 NMSA 1978 and is amended to read:

"12-16-13. FIRE PREVENTION--PUBLIC OCCUPANCIES [REGULATIONS] RULES.--

A. For prevention and control of fires, the [state] fire [board] services division of the homeland security department 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" 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] division 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 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 37. Section 59A-52-16 NMSA 1978 (being Laws 1984, Chapter 127, Section 962, as amended) is recompiled as Section 12-16-14 NMSA 1978 and is amended to read:

"12-16-14. FLAMMABLE LIQUIDS RULES--NATIONWIDE STANDARDS--[SAVINGS] SAVING CLAUSE--DEFINITION.--

A. The [commission] fire services division of the homeland security department shall adopt rules for the safe vehicular transportation, storage, handling and use of flammable and combustible liquids; provided that the [commission] division 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] 12, Article [52] 16 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 any liquid having a flash point at or above one hundred degrees Fahrenheit and below two hundred degrees Fahrenheit."

Section 38. Section 59A-52-18 NMSA 1978 (being Laws 1984, Chapter 127, Section 964) is recompiled as Section 12-16-15 NMSA 1978 and is amended to read:

"12-16-15. RULES [AND REGULATIONS]--STATEWIDE EFFECT--RESERVED POWER OF MUNICIPALITIES.--The rules [and regulations] promulgated pursuant to [this article shall] Chapter 12, Article 16 NMSA 1978 have uniform [force and] effect throughout the state, and [no] a municipality or other political subdivision shall not enact or enforce any ordinances or rules [or regulations] inconsistent with the statewide rules [and regulations] promulgated pursuant to [this] that article. Nothing in [this] that article shall [in any way] impair the power of [any] a municipality to regulate the use of its land by zoning, building codes or restricted fire district [regulations] rules."

Section 39. Section 59A-52-20 NMSA 1978 (being Laws 1984, Chapter 127, Section 966) is recompiled as Section 12-16-16 NMSA 1978 and is amended to read:

"12-16-16. CEASE AND DESIST ORDERS--CERTAIN VIOLATIONS ARE MISDEMEANORS.--

A. When the [marshal, his deputy or his authorized officer] fire services division of the homeland security department or its designated agent finds [any] a violation of the [regulations] rules issued in compliance with [this article he or they] Chapter 12, Article 16 NMSA 1978, the division shall issue an order to the owner or his agent to cease and desist such [violations] violation.

B. [When there is so found any] In the case of a violation of [any] a statute or [rules and regulations] rule concerning flammable liquids, a cease and desist order shall [issue] be issued if the violation constitutes an immediate and distinct hazard to life or property, and any such violation shall constitute a misdemeanor punishable by a fine not to exceed five hundred dollars ($500). Each day such violation continues constitutes a separate offense."

Section 40. Section 59A-52-22 NMSA 1978 (being Laws 1984, Chapter 127, Section 968, as amended) is recompiled as Section 12-16-17 NMSA 1978 and is amended to read:

"12-16-17. JUDICIAL REVIEW OF ORDER.--A person aggrieved by a decision of the [state] fire [marshal] services division of the homeland security department may appeal to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978."

Section 41. Section 59A-52-23 NMSA 1978 (being Laws 1984, Chapter 127, Section 969, as amended) is recompiled as Section 12-16-18 NMSA 1978 and is amended to read:

"12-16-18. ENFORCEMENT OF CEASE AND DESIST ORDERS.--After expiration of time for an [administrative] appeal, and if [no] such appeal has not been taken, the [state] fire [marshal] services division of the homeland security department 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 may likewise commence an action in the district court for Santa Fe county to enforce its decision rendered on appeal from the cease and desist order of the state fire marshal.]"

Section 42. Section 59A-52-24 NMSA 1978 (being Laws 1984, Chapter 127, Section 970) is recompiled as Section 12-16-19 NMSA 1978 and is amended to read:

"12-16-19. PENALTY FOR VIOLATION OF LAW OR [REGULATIONS] RULES.--Violation of [any of] the provisions of [this article] Chapter 12, Article 16 NMSA 1978 or of any of the [regulations lawfully enacted pursuant thereto shall constitute] rules adopted in accordance with that article constitutes a misdemeanor [for which the punishment shall be] and may be punished by a fine of not more than five hundred dollars ($500). Each day [any such] a violation continues [shall constitute] constitutes a separate offense."

Section 43. Section 59A-52-25 NMSA 1978 (being Laws 1984, Chapter 127, Section 971) is recompiled as Section 12-16-20 NMSA 1978 and is amended to read:

"12-16-20. PENALTY FOR VIOLATION OF CEASE AND DESIST ORDER.--[Any] A person [firm or corporation] that violates [any] a final cease and desist order [shall be] is subject to a penalty in the sum of five hundred dollars ($500) for each day [such] the violation continues. The attorney general [is empowered to] may bring a civil suit for the enforcement of this section on the relation of the [marshal] fire services division of the homeland security department. Any penalty collected [under] pursuant to the provisions of this section shall be credited to the [fire protection] current school fund."

Section 44. Section 8-8-9.1 NMSA 1978 (being Laws 2001, Chapter 80, Section 1) is recompiled as Section 12-16-21 NMSA 1978 and is amended to read:

"12-16-21. FIREFIGHTER TRAINING ACADEMY--USE FEE FUND CREATED.--The "training academy use fee fund" is created in the state treasury. All fees received by the [state fire marshal] homeland security department for use of the firefighter training academy and its services shall be deposited into the fund; provided that [no] a fee shall not be charged the state [of New Mexico] or any of its agencies, instrumentalities or political subdivisions; and provided further that each contract for services in which a fee is collected shall be entered into pursuant to a business plan that has been approved by the department of finance and administration and reviewed by the legislative finance committee. Balances in the fund shall be available for appropriation to the [state] fire [marshal] services division of the homeland security department for paying the operating and capital expenses of the firefighter training academy. Earnings of the fund shall be credited to the fund, and the unexpended or unencumbered balance in the fund shall not revert to any other fund."

Section 45. Section 59A-53-1 NMSA 1978 (being Laws 1984, Chapter 127, Section 972, as amended) is recompiled as Section 12-17-1 NMSA 1978 and is amended to read:

"12-17-1. SHORT TITLE.--Chapter [59A] 12, Article [53] 17 NMSA 1978 may be cited as the "Fire Protection Fund Law"."

Section 46. Section 59A-53-3 NMSA 1978 (being Laws 1984, Chapter 127, Section 974, as amended) is recompiled as Section 12-17-3 NMSA 1978 and is amended to read:

"12-17-3. DETERMINATION AND CERTIFICATION OF NEEDS.--

A. Annually, on or before the last day of May, the marshal shall consider and determine, in his reasonable discretion, the relative needs of incorporated cities, towns and villages and county fire districts for money in the fire protection fund, based upon the information available to him, and shall certify to the state treasurer the names of the incorporated cities, towns, villages and county fire districts that he determines need the assistance of a distribution from the money in the fire protection fund, and the amount required by each, in accordance with the provisions of Chapter [59A] 12, Article [53] 17 NMSA 1978. In making this determination and certification, the marshal [will] shall consider the intent and purpose of that article that no incorporated city, town or village or county fire district shall receive money distributed from the fire protection fund merely for the purpose of accumulation when the money is not required to accomplish the purposes of that article.

B. In making a determination and certification of needs, the marshal shall consider and provide for any debt obligations of existing or previously existing fire departments or fire districts.

C. For the purposes of Chapter [59A] 12, Article [53] 17 NMSA 1978, "marshal" means the state fire marshal [as further identified in Chapter 59A, Article 52 NMSA 1978]."

Section 47. Section 59A-53-5.1 NMSA 1978 (being Laws 1998, Chapter 76, Section 3) is recompiled as Section 12-17-6 NMSA 1978 and is amended to read:

"12-17-6. MAXIMUM AMOUNTS TO BE CERTIFIED.--

A. For fiscal year 2000 and each fiscal year thereafter, the marshal shall certify a total amount pursuant to Sections [59A-53-4 and 59A-53-5] 12-17-4 and 12-17-5 NMSA 1978 not to exceed the greater of the total distribution pursuant to those sections for the previous fiscal year or an amount to be determined by adding:

(1) one-half of the total increase in the fire protection fund receipts in the previous fiscal year minus one-half of the appropriations, from all sources, to the volunteer firefighters retirement fund in the current fiscal year; and

(2) the total distribution pursuant to Sections [59A-53-4 and 59A-53-5] 12-17-4 and 12-17-5 NMSA 1978 for the previous fiscal year.

B. The marshal shall adjust the distributions for each class in proportion to the increase in the total distribution."

Section 48. Section 59A-53-6 NMSA 1978 (being Laws 1984, Chapter 127, Section 977, as amended) is recompiled as Section 12-17-7 NMSA 1978 and is amended to read:

"12-17-7. APPEAL AND REVIEW OF DETERMINATION.--The marshal shall promptly notify each incorporated city, town, village and county fire district affected of his determination of needs, and an incorporated city, town, village or county fire district may appeal from the determination of the marshal to the [commission] secretary of finance and administration, 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] he 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 49. Section 59A-53-7 NMSA 1978 (being Laws 1984, Chapter 127, Section 978, as amended) is recompiled as Section 12-17-8 NMSA 1978 and is amended to read:

"12-17-8. 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 finance and administration, 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 50. Section 59A-53-12 NMSA 1978 (being Laws 1984, Chapter 127, Section 983, as amended) is recompiled as Section 12-17-13 NMSA 1978 and is amended to read:

"12-17-13. PROMULGATION OF RULES [AND REGULATIONS].--The marshal has authority to promulgate, modify, amend and revoke from time to time rules [and regulations], including those for mutual aid among and between fire departments; provided, that [no such] the rules [and regulations] shall not allow [any] a fire department to extend its service in any manner that would jeopardize the fire insurance rates within its incorporated city, town or village [and] or county fire district, as [he] the marshal may determine, in his discretion, to be necessary, advisable or proper to accomplish the objectives of the Fire Protection Fund Law. Among other things, [these] the rules [and regulations] shall include [but not be limited to] a list of fire-fighting equipment, apparatus and other items [which] that may properly be purchased by [any] an incorporated city, town or village or by [any] a county fire district from funds distributed from the fire protection fund, and standards of quality, construction and performance to be met by major fire-fighting appliances, training requirements, fire-fighting protective clothing and equipment standards, and by fire stations and substations, proposed to be purchased or constructed by [any] an incorporated city, town or village or county fire district from money distributed from the fire protection fund. All rules [and regulations] shall be filed and published as required by law. [Regulations of this nature heretofore promulgated by the superintendent and now in effect] Rules shall continue in effect until [hereafter] revoked or modified. Nothing in this section shall be construed to grant regulatory authority over the Volunteer Firefighters Retirement Act to the marshal."

Section 51. Section 59A-53-15 NMSA 1978 (being Laws 1984, Chapter 127, Section 986, as amended) is recompiled as Section 12-17-16 NMSA 1978 and is amended to read:

"12-17-16. APPROPRIATION FROM STATE TREASURY.--All money [which] that is 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] fire services division of the homeland security department for the purposes set out in Chapter [59A] 12, Article [53] 17 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] services division 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."

Section 52. Section 74-4B-3 NMSA 1978 (being Laws 1983, Chapter 80, Section 3, as amended by Laws 1997, Chapter 152, Section 1 and also by Laws 1997, Chapter 231, Section 1) is amended to read:

"74-4B-3. DEFINITIONS.--As used in the Emergency Management Act:

A. "accident" means an event involving hazardous materials that may cause injury to persons or damage to property or release hazardous materials to the environment;

B. "administrator" means the hazardous materials emergency response administrator;

C. "board" means the hazardous materials safety board;

D. "chief" means the chief of the New Mexico state police division of the department of public safety;

E. "commission" means the state emergency response commission;

F. "department" means the homeland security department [of public safety];

G. "emergency management" means the ability to prepare for, respond to, mitigate, recover and restore the scene of an institutional, industrial, transportation or other accident;

H. "first responder" means the first law enforcement officer or other public service provider with a radio-equipped vehicle to arrive at the scene of an accident;

I. "hazardous materials" means hazardous substances, radioactive materials or a combination of hazardous substances and radioactive materials;

J. "hazardous substances" means flammable solids, semisolids, liquids or gases; poisons; corrosives; explosives; compressed gases; reactive or toxic chemicals; irritants; or biological agents, but does not include radioactive materials;

K. "orphan hazardous materials" means hazardous substances, radioactive materials, a combination of hazardous substances and radioactive materials or substances used in the manufacture of controlled substances in violation of the Controlled Substances Act where an owner of the substances or materials cannot be identified;

L. "plan" means the statewide hazardous materials emergency response plan;

M. "radioactive materials" means any material or combination of materials that spontaneously emits ionizing radiation. Materials in which the estimated specific activity is not greater than 0.002 microcuries per gram of material are not considered to be radioactive materials unless determined to be so by the hazardous and radioactive materials bureau of the water and waste management division of the department of environment for purposes of emergency response pursuant to the Emergency Management Act;

N. "responsible state agency" means an agency designated in Subsection D of Section 74-4B-5 NMSA 1978 with responsibility for managing a certain type of accident or performing certain functions at the scene of such accident;

O. "secretary" means the secretary of [public safety] homeland security; and

P. "task force" means the emergency management task force."

Section 53. Section 74-4B-4 NMSA 1978 (being Laws 1983, Chapter 80, Section 4, as amended) is amended to read:

"74-4B-4. STATE RESPONSIBILITY FOR MANAGEMENT OF ACCIDENTS--IMMUNITY FROM LIABILITY--COOPERATIVE AGREEMENTS--PRIVATE PROPERTY.--

A. The secretary [shall have] has final authority to administer the provisions of the Emergency Management Act.

B. As between state and local governments, the state government has the primary responsibility for the management of an accident, and the local government in whose jurisdiction the accident occurs shall assist the state in its management of the accident.

C. Nothing in the Emergency Management Act shall be construed as a waiver or alteration of the immunity from liability granted under the Tort Claims Act or as a waiver of any other immunity or privilege under law.

D. The state, through the secretary or his designee, may enter into cooperative agreements with county and municipal governments for the management of accidents based on the severity of the accident and the resources of the local government. The plan shall set forth the criteria for

determining when an accident may be managed by the local government in whose jurisdiction the accident occurred.

E. The secretary shall support emergency response capabilities by assisting local and state responders in the acquisition of equipment, training and hazardous materials information.

F. The state, through the secretary or his designee, may enter into cooperative agreements with the federal government, Indian tribes and pueblos and bordering states for assistance in the management of accidents.

G. Whenever an accident appears imminent or has occurred, employees or authorized persons of responsible state agencies as defined in Section 74-4B-5 NMSA 1978 are authorized to enter upon any premises for the purpose of determining whether it is necessary for emergency management procedures to be implemented. The state on-scene coordinator or a responsible state agency may take full control and custody of the premises for the purpose of managing the accident."

Section 54. Section 74-4B-5 NMSA 1978 (being Laws 1983, Chapter 80, Section 5, as amended) is amended to read:

"74-4B-5. STATE POLICE EMERGENCY RESPONSE OFFICER--PROCEDURE FOR NOTIFICATION--COOPERATION OF OTHER STATE AGENCIES AND LOCAL GOVERNMENTS.--

A. The secretary, in addition to having final authority to administer the provisions of the Emergency Management Act, [shall be] is responsible for central coordination and communication in the event of an accident.

B. The chief shall designate one or more persons to be known as "state police emergency response officers". A state police emergency response officer shall be trained in accident evaluation and emergency response and shall be available to answer an emergency response call from the first responder.

C. In the event of an accident, if the first responder is a law enforcement officer, he shall immediately notify the state police district emergency response officer in his area, who shall in turn immediately notify the state police emergency response center. If the first responder is a person with radio capability tied into the radio communications bureau of the [information systems] communications division of the general services department, he shall immediately notify Santa Fe control, who shall in turn immediately notify the [state police] emergency response center. The [state police] emergency response center shall:

(1) evaluate and determine the scope of the accident based on information provided by the first responder;

(2) instruct the first responder on how to proceed at the accident scene;

(3) immediately notify the appropriate responsible state agency and advise it of the necessary response;

(4) notify the sheriff or chief of police in whose jurisdiction the accident occurred; and

(5) coordinate field communications and summon additional resources requested by the emergency management team.

D. The responsible state agencies shall be:

(1) the department for coordination;

[(1)] (2) the New Mexico state police division of the [public safety] department of public safety for [coordination] law enforcement and traffic and crowd control;

[(2)] (3) the environmental [improvement] protection division of the [health and] department of environment [department] for assistance with accidents involving [radioactive or] hazardous materials or hazardous substances;

[(3)] (4) the [state] fire [marshal's office] services division of the department for assistance with any accident involving hazardous materials;

[(4)] (5) the primary care and emergency medical services bureau of the public health [services] division of the department of health [and environment department] for assistance with accidents involving casualties;

[(5)] (6) the [emergency planning and coordination bureau of the public safety] department and the military [division] divisions of the department of military affairs for assistance with accidents [which] that require the evacuation of the vicinity of the accident or the use of the national guard of New Mexico; and

[(6)] (7) the state highway and transportation department for assistance with road closures, designating alternate routes and related services.

E. Other state agencies and local governments shall assist the responsible state agencies when requested to do so.

F. Any driver of a vehicle carrying hazardous materials involved in an accident [which] that may cause injury to persons or property or any owner, shipper or carrier of hazardous materials involved in an accident who has knowledge of such accident or any owner or person in charge of any building, premises or facility where such an accident occurs shall immediately notify the New Mexico state police division of the [public safety] department of public safety by the quickest means of communication available."

Section 55. Section 74-4B-6 NMSA 1978 (being Laws 1983, Chapter 80, Section 6, as amended) is amended to read:

"74-4B-6. EMERGENCY MANAGEMENT TASK FORCE--CREATED--POWERS AND DUTIES.--

A. The "emergency management task force" is created, composed of:

(1) the secretary or his designee, who shall serve as chairman of the task force;

[(1)] (2) the chief or his designee, who shall serve as vice chairman of the task force;

[(2)] (3) the state fire marshal or his designee;

[(3)] (4) a staff member of the environmental [improvement] protection division who is knowledgeable about radioactive materials, to be designated by the director of the division;

[(4)] (5) a staff member of the environmental [improvement] protection division who is knowledgeable about hazardous substances, to be designated by the director of the division;

[(5)] (6) the director of the [technical and emergency support] motor transportation division of the department of public safety or his designee;

[(6)] (7) the chief of the primary care and emergency medical services bureau or his designee;

[(7)] (8) the secretary of highway and transportation or his designee;

[(8) the chairman of the state corporation commission or his designee;]

(9) a representative of the governor, to be appointed by the governor, who is not an employee of any agency represented on the task force [and who shall serve as chairman of the task force]; and

[(10) the secretary of taxation and revenue or his designee; and

(11)] (10) the director of the [information systems] communications division of the general services department or his designee.

B. The attorney general's office shall serve as attorney for the task force.

C. The task force shall, at the direction of the [state emergency response] commission, develop and monitor a comprehensive plan, to include:

(1) procedures for initially assessing the scope and nature of an accident;

(2) procedures for notifying and assembling the proper emergency management team from the responsible state agencies;

(3) procedures for siting and operating an on-scene command post;

(4) an inventory and assessment of manpower, equipment and training within each responsible state agency as well as other state agencies and local governments and federal and private sources;

(5) an assessment of the adequacy and availability of training materials and facilities to train and cross-train emergency response teams and other persons involved in responding to an accident and an identification of training requirements to [assure] ensure that such persons are adequately trained;

(6) the development of training programs for emergency response teams and other persons involved in responding to an accident;

(7) procedures for decontamination of emergency management personnel and equipment as well as medical and other facilities [which] that may be used in the management of the accident;

(8) identification of the medical resources in the state and the location of specialized medical facilities for use in medical emergencies;

(9) information and training programs for hospital emergency room personnel and doctors;

(10) procedures for accident assessment and record keeping;

(11) procedures for periodic emergency management preparedness exercises and testing of the plan;

(12) a designation of areas of responsibility in the emergency management plan, including [but not limited to]:

(a) command and control of the accident scene and overall responsibility and authority for all emergency response activity;

(b) public health and safety, including rescue operations, emergency medical services, evacuation and containment of the accident scene;

(c) sanitation and decontamination services at the accident scene;

(d) communications, including statewide and on-scene communications;

(e) public works and engineering;

(f) transportation;

(g) social services;

(h) accident assessment, investigation and record keeping;

(i) protective response, including hazardous materials exposure control;

(j) environmental monitoring, control and cleanup; and

(k) public information;

(13) criteria for determining when an accident may be handled by a local government;

(14) procedures for entering into cooperative agreements between the state and local governments and between the state and the federal government, Indian tribes and pueblos and bordering states pursuant to Section 74-4B-4 NMSA 1978; and

(15) identification of information management resources necessary for effective emergency response activity.

D. The task force shall develop liaison with the trucking industry, the railroads and other areas of the private sector in the formulation of the plan."

Section 56. Section 74-4B-6.1 NMSA 1978 (being Laws 1984, Chapter 41, Section 6, as amended) is amended to read:

"74-4B-6.1. HAZARDOUS MATERIALS EMERGENCY RESPONSE ADMINISTRATOR--CREATED--DUTIES.--

A. The position of "hazardous materials emergency response administrator" is created within the [technical and emergency support division of the public safety] department.

B. The administrator shall, subject to the approval of the [director of the technical and emergency support division of the public safety department] secretary, provide staff support to the task force and the board and shall:

(1) maintain inventories and databases relevant to the task force and board activities;

(2) maintain current rosters of emergency response personnel and other contact persons with knowledge, resources and capabilities for emergency response functions;

(3) update the plan and accompanying documents at the direction of the task force;

(4) schedule activities required by the task force and board; and

(5) perform other duties requested by the task force and board in accordance with the provisions of the Emergency Management Act and the plan.

C. Money appropriated to the [public safety] department for administering the Emergency Management Act or received through grants or other sources shall be expended upon vouchers signed by the [director of the technical and emergency support division of the public safety department] secretary or his authorized representative."

Section 57. Section 74-4B-8 NMSA 1978 (being Laws 1983, Chapter 80, Section 8, as amended) is amended to read:

"74-4B-8. HAZARDOUS MATERIALS SAFETY BOARD--CREATION--DUTIES.--

A. There is created the "hazardous materials safety board", composed of the training officers of the responsible state agencies. The chairman of the board shall be elected by the members of the board.

B. The board shall, at the direction of the [state emergency response] commission:

(1) establish a curriculum of accident response training for the personnel of each responsible state agency, designed to implement the plan adopted by the task force;

(2) certify to each responsible state agency those persons who have completed the training curriculum or parts of the curriculum;

(3) meet at least every four months to review the training needs of each responsible state agency and formulate a plan to meet those needs;

(4) conduct, under the direction and administration of the state fire marshal, an annual comprehensive training course for all appropriate personnel from responsible state agencies, other state agencies and local governments, which course shall include teaching the basic duties, responsibilities and procedures of responsible state agencies, other state agencies and local governments;

(5) in conjunction with the task force, prepare and submit to the [state emergency response] commission a budget for statewide training needs; and

(6) cooperate with and assist the task force as requested, including providing the task force with any requested information regarding safety and training of emergency response personnel."

Section 58. Section 74-4B-13 NMSA 1978 (being Laws 1992, Chapter 5, Section 2) is amended to read:

"74-4B-13. ORPHAN MATERIAL RECOVERY FUND ESTABLISHED.--

A. There is created in the state treasury the "orphan material recovery fund". The fund shall be invested as other state funds are invested. All money remaining in the orphan material recovery fund at the end of any fiscal year shall remain in that fund.

B. The department of environment shall administer the orphan material recovery fund. Money in the fund is appropriated to the department of environment for the purpose of contracting for the disposal of orphan hazardous materials:

(1) held in the possession of the department of environment; and

(2) identified by state emergency response officers.

C. Any expenditures made from the orphan material recovery fund that are recovered from [the] a party identified as responsible for the orphan hazardous materials shall be credited to the fund.

D. If the cost of disposing orphan hazardous materials exceeds the balance available in the orphan material recovery fund, the secretary of environment is authorized to seek and the state board of finance is authorized to disburse funds from the state board of finance emergency fund in an amount necessary to cover the deficit in the orphan material recovery fund."

Section 59. Section 74-4B-14 NMSA 1978 (being Laws 1992, Chapter 5, Section 3, as amended) is amended to read:

"74-4B-14. CLEANUP OF ORPHAN HAZARDOUS MATERIALS--

DEPARTMENT RECOURSE--APPEAL.--The department of environment may assess charges against a party identified as responsible for orphan hazardous materials, for costs the department of environment incurs in cleanup of the orphan hazardous materials and for damage to state property. Amounts received in payment of assessments for cleanup of the orphan hazardous materials shall be deposited in the orphan material recovery fund. Amounts received in payment of assessments for damage to state property shall be used to repair the damage. A person who is assessed charges pursuant to this section may appeal the assessment to the district court pursuant to the provisions of Section 39-3-1.1 NMSA 1978."

Section 60. TEMPORARY PROVISION--TRANSFER OF PERSONNEL, APPROPRIATIONS, MONEY AND PROPERTY TO THE HOMELAND SECURITY DEPARTMENT--CONTRACTUAL OBLIGATIONS--STATUTORY REFERENCES.--

A. On the effective date of this act, all personnel, appropriations, money, records, furniture, equipment, supplies and other property of the fire marshal bureau and the firefighter training academy of the public regulation commission are transferred to the homeland security department.

B. On the effective date of this act, all contractual obligations of the fire marshal bureau and the firefighter training academy of the public regulation commission shall be contractual obligations of the homeland security department.

C. On the effective date of this act, all references in the law to the state fire marshal or the fire marshal bureau shall be deemed to be references to the fire services division of the homeland security department. All references in the law to the firefighter training academy shall be deemed to be references to the firefighter training academy of the homeland security department.

Section 61. APPROPRIATION.--Two hundred fifty thousand dollars ($250,000) is appropriated from the general fund to the homeland security department for expenditure in fiscal year 2004 to pay expenses related to the creation of the department. Any unexpended or unencumbered balance remaining at the end of fiscal year 2004 shall revert to the general fund.

Section 62. RECOMPILATION.--Sections 59A-53-2, 59A-53-4, 59A-53-5, 59A-53-8 through 59A-53-11, 59A-53-13, 59A-53-14, 59A-53-16 and 59A-53-17 NMSA 1978 (being Laws 1984, Chapter 127, Sections 973 through 975, Laws 1989, Chapter 312, Section 5, Laws 1984, Chapter 127, Sections 979 through 982, 984, 985, 987 and 988, as amended) are recompiled as Sections 12-17-2, 12-17-4, 12-17-5, 12-17-9 through 12-17-12, 12-17-14, 12-17-15, 12-17-17 and 12-17-18 NMSA 1978.

Section 63. REPEAL.--Sections 59A-52-2, 59A-52-4, 59A-52-17, 59A-52-19 and 59A-52-21 NMSA 1978 (being Laws 1984, Chapter 127, Sections 948, 950, 963, 965 and 967, as amended) are repealed.

Section 64. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.