2004 Senate Bill text for SB0173

SENATE BILL 173

46th legislature - STATE OF NEW MEXICO - second session, 2004

INTRODUCED BY

Dede Feldman

AN ACT

RELATING TO FIREWORKS; LIMITING THE SALE AND USE OF FIREWORKS DURING PERIODS OF EXTREME OR SEVERE DROUGHT; DECLARING AN EMERGENCY.

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

Section 1. Section 60-2C-2 NMSA 1978 (being Laws 1989, Chapter 346, Section 2, as amended) is amended to read:

"60-2C-2. DEFINITIONS.--As used in the Fireworks Licensing and Safety Act:

A. "bosque" means a cottonwood corridor adjacent to a river;

[A.] B. "chaser" means a paper or cardboard tube venting out the fuse end of the tube that contains no more than twenty grams of chemical composition and travels along the ground, often producing a whistling effect or other noise; an explosive composition not to exceed fifty milligrams may be included to produce a report;

[B.] C. "chemical composition" includes all pyrotechnic and explosive composition contained in a fireworks device, but does not include inert materials such as clay used for plugs or organic matter such as rice hulls used for density control;

[C.] D. "cone fountain" means a cardboard or heavy paper cone containing no more than fifty grams of pyrotechnic composition that has the same effect as a cylindrical fountain. When more than one cone is mounted on a common base, total pyrotechnic composition shall not exceed two hundred grams;

[D.] E. "crackling device" means a sphere or paper tube that contains no more than twenty grams of pyrotechnic composition that produces a flash of light and a mild, audible crackling effect upon ignition, which effect is not considered to be an explosion. Crackling devices are not subject to the fifty-milligram limit of firecrackers;

[E.] F. "cylindrical fountain" means a cylindrical tube containing not more than seventy-five grams of pyrotechnic composition that produces a shower of colored sparks and sometimes a whistling effect or smoke. The device may be provided with a spike for insertion into the ground or a wood or plastic base for placing on the ground or a wood or cardboard handle to be hand-held. When more than one tube is mounted on a common base, total pyrotechnic composition shall not exceed two hundred grams;

[F.] G. "display distributor" means [any] a person, firm or corporation selling display fireworks;

[G.] H. "display fireworks" means devices primarily intended for commercial displays that are designed to produce visible or audible effects by combustion, deflagration or detonation, including salutes containing more than one hundred thirty milligrams of explosive composition; aerial shells containing more than forty grams of chemical composition exclusive of lift charge; and other exhibition display items that exceed the limits for permissible fireworks;

[H.] I. "distributor" means [any] a person, firm or corporation selling fireworks to wholesalers and retailers for resale;

J. "energy release component" means an index based on the estimated potential available energy released per unit-area in the flaming front of a fire;

[I.] K. "explosive composition" means [any] a chemical compound or mixture, the primary purpose of which is to function by explosion, producing an audible effect in a fireworks device;

[J.] L. "firecracker" means a small, paper-wrapped or cardboard tube containing no more than fifty milligrams of explosive composition that produces noise and a flash of light; provided that firecrackers used in aerial devices may contain up to one hundred thirty milligrams of explosive composition per report;

[K.] M. "fireworks" means devices intended to produce a visible or audible effect by combustion, deflagration or detonation and are categorized as "permissible fireworks" or "display fireworks";

[L.] N. "flitter sparkler" means a narrow paper tube attached to a stick or wire and filled with no more than five grams of pyrotechnic composition that produces color and sparks upon ignition and the paper at one end of the tube is ignited to make the device function;

[M.] O. "ground spinner" means a small, rapidly spinning device containing no more than twenty grams of pyrotechnic composition venting out an orifice usually on the side of the tube that when ignited produces a shower of sparks and color. "Ground spinner" is similar in operation to a wheel, but is intended to be placed flat on the ground and ignited;

[N.] P. "helicopter" or "aerial spinner" means a tube containing no more than twenty grams of chemical composition with a propeller or blade attached that spins rapidly as it rises into the air with a visible or audible effect sometimes produced at or near the height of flight;

[O.] Q. "illuminating torch" means a cylindrical tube containing no more than one hundred grams of pyrotechnic composition that produces a colored flame upon ignition and may be spiked, based or hand-held. When more than one tube is mounted on a common base, total pyrotechnic composition shall not exceed two hundred grams;

[P.] R. "manufacturer" means [any] a person, firm or corporation engaged in the manufacture of fireworks;

[Q.] S. "mine" or "shell" means a heavy cardboard or paper tube usually attached to a wooden or plastic base and containing no more than forty grams of chemical composition plus not more than twenty grams of lift charge per tube that individually expels pellets of pressed pyrotechnic composition that burn with bright color in a star effect, or other devices propelled into the air, and that contains components producing reports containing a maximum one hundred thirty milligrams of explosive composition per report. A mine may contain more than one tube, but the tubes must fire in sequence upon ignition of one external fuse, and the total chemical composition, including lift charges, of a multiple tube device shall not exceed two hundred grams;

[R.] T. "missile-type rocket" means a device similar to a stick-type rocket in size, composition and effect that uses fins rather than a stick for guidance and stability and that contains no more than twenty grams of chemical composition;

[S.] U. "permissible fireworks" means fireworks legal for sale to and use in New Mexico by the general public;

[T.] V. "pyrotechnic composition" means a chemical mixture that on burning and without explosion produces visible or brilliant displays or bright lights or whistles or motion;

[U.] W. "retailer" means [any] a person, firm or corporation purchasing fireworks for resale to consumers;

[V.] X. "roman candle" means a heavy paper or cardboard tube containing no more than twenty grams of chemical composition that individually expels pellets of pressed pyrotechnic composition that burn with bright color in a star effect;

[W.] Y. "specialty retailer" means [any] a person, firm or corporation purchasing permissible fireworks for year-round resale in permanent retail stores whose primary business is tourism;

[X.] Z. "stick-type rocket" means a cylindrical tube containing no more than twenty grams of chemical composition with a wooden stick attached for guidance and stability that rises into the air upon ignition and produces a burst of color or sound at or near the height of flight;

[Y.] AA. "toy smoke device" means a small plastic or paper item containing no more than one hundred grams of pyrotechnic composition that produces white or colored smoke as the primary effect;

[Z.] BB. "wheel" means a pyrotechnic device that is made to attach to a post or other surface and that revolves, producing a shower of color and sparks and sometimes a whistling effect, and that may have one or more drivers, each of which contains no more than sixty grams of pyrotechnic composition and the total wheel contains no more than two hundred grams total pyrotechnic composition;

[AA.] CC. "wholesaler" means [any] a person, firm or corporation purchasing fireworks for resale to retailers; and

[BB.] DD. "wildlands" means [any] lands covered wholly or in part by timber, brush or native grass."

Section 2. Section 60-2C-8 NMSA 1978 (being Laws 1989, Chapter 346, Section 8, as amended) is amended to read:

"60-2C-8. RETAIL SALES OR STORAGE OF FIREWORKS--REGULATED ACTIVITIES.--

A. No fireworks may be sold at retail without a retail permit. The permit shall be at the location where the retail sale takes place.

B. It is unlawful to offer for sale or to sell [any] fireworks to children under the age of sixteen years or to [any] an intoxicated person.

C. At all places where fireworks are stored, sold or displayed, the words "NO SMOKING" shall be posted in letters at least four inches in height. Smoking, open flames and any ignition source are prohibited within twenty-five feet of [any] fireworks stock.

D. No fireworks shall be stored, kept, sold or discharged within fifty feet of [any] a gasoline pump or gasoline bulk station or [any] a building in which gasoline or volatile liquids are sold in quantities in excess of one gallon, except in stores where cleaners, paints and oils are handled in sealed containers only.

E. All fireworks permittees and licensees shall keep and maintain upon the premises a fire extinguisher bearing an underwriters laboratories incorporated rated capacity of at least five-pound ABC per five hundred square feet of space used for fireworks sales or storage.

F. A sales clerk who is at least sixteen years of age shall be on duty to serve consumers at the time of purchase or delivery. Permissible fireworks may be offered for sale only at state-permitted or state-licensed retail locations.

G. No fireworks shall be discharged within one hundred fifty feet of [any] a fireworks retail sales location.

H. No fireworks shall be sold or used on state forest land, wildlands or bosque.

I. No person shall ignite [any] fireworks within a motor vehicle or throw fireworks from a motor vehicle, nor shall any person place or throw [any] ignited [article of] fireworks into or at a motor vehicle or at or near [any] a person or group of people.

J. [Any] Fireworks devices that are readily accessible to handling by consumers or purchasers in a retail sales location shall have their exposed fuses protected in a manner to protect against accidental ignition of an item by a spark, cigarette ash or other ignition source. If the fuse is a thread-wrapped safety fuse [which] that has been coated with a nonflammable coating, only the outside end of the safety fuse shall be covered. If the fuse is not a safety fuse, then the entire fuse shall be covered.

K. Permissible fireworks may be sold at retail between June [20] 24 and July [6] 5 of each year, [and] six days preceding and including new year's day, [and] three days preceding and including Chinese new year, the sixteenth of September and cinco de Mayo of each year, except that permissible fireworks may be sold all year in permanent retail stores whose primary business is tourism."

Section 3. 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:

(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. 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:

(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:

(b) ban the use of all fireworks within wildlands in its jurisdiction, after consultation with the state forester; and

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.]

A. The governor may issue a proclamation temporarily banning the sale and use of fireworks, imposing any other open-flame restrictions or bans and stating that drought conditions exist in counties within the state. The governor shall base his drought proclamation on the energy release component of the national fire danger rating system. The governor may act if the energy release component of the national fire danger rating system is at the ninety-seventh percentile or higher in a county.

B. A proclamation issued pursuant to Subsection A of this section shall be effective for thirty days, and the governor may issue succeeding proclamations if drought conditions warrant. The proclamation shall explain restrictions on the sale or use of fireworks and permitted sales or uses of fireworks. A proclamation may be modified or rescinded within its thirty-day period in twenty-four hours by the governor if the energy release component of the national fire danger rating system is less than the ninety-seventh percentile in those drought-affected counties.

C. As part of the proclamation issued pursuant to Subsection A of this section, the governor may:

(1) restrict the sale of certain types of fireworks in permanent retail stores whose primary business is tourism in counties that are experiencing drought conditions; and

(2) impose additional requirements for the sale of fireworks in permanent retail stores whose primary business is tourism in counties that are experiencing drought conditions.

D. A municipality or county may in writing petition the governor to issue a proclamation pursuant to Subsection A of this section if the energy release component of the national fire danger rating system is at the ninety-seventh percentile or higher in the municipality or county. If the governor fails to take any action after seventy-two hours from receipt of the petition, the municipality or county may exercise the same authority as found in Subsection A of this section. A proclamation shall be effective for thirty days, and the municipality or county may issue succeeding proclamations if drought conditions warrant. The proclamation shall explain restrictions on the sale or use of fireworks and permitted sales or uses of fireworks. A proclamation may be modified or rescinded within its thirty-day period in twenty-four hours by the municipality or county if the energy release component of the national fire danger rating system is less than the ninety-seventh percentile in the municipality or county."

Section 4. EMERGENCY.--It is necessary for the public peace, health and safety that this act take effect immediately.

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