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F I S C A L I M P A C T R E P O R T

SPONSOR

SCORC

ORIGINAL DATE

LAST UPDATED

2/06/07

3/8/07

HB

SHORT TITLE

Dental Building Nitrous Oxide Standards

SB 366/SCO

RC

S/aH

HG

AC

ANALYST C. Sanchez

APPROPRIATION (dollars in thousands)

Appropriation

Recurring

or Non-Rec

Fund

Affected

FY07

FY08

NFI

(Parenthesis ( ) Indicate Expenditure Decreases)

SOURCES OF INFORMATION

LFC Files

Responses Received From

Regulation and Licensing Department (RLD)

SUMMARY

Synopsis of Amendment

The House Health and Government Affairs Committee Substitute for Senate Bill 366 strikes

“other facilities" focusing the bill on dental offices only.

Synopsis of Bill

The Senate Corporations and Transportation Committee Substitute for Senate Bill 366 would add

a new section to the Construction Industries Licensing Act, NMSA 1978, Section 60-13-1 et

seq., mandating that dental offices and other facilities intending to administer non-halogenated

nitrous oxide comply with a lower standard than the current standard adopted by the State for the

type of vacuum/evacuation system required.

The bill would also mandate that local jurisdictions, including home rule municipalities, not

impose a more restrictive standard.

FISCAL IMPLICATIONS

The bill would require CID to engage in the rulemaking process, which has associated costs in

Senate Bill 366/SCORCS/aHHGAC – Page

2

staff time, notice, and publications of the proposed and final rule. These costs, however, are

incurred in the normal course of CID’s business and can be absorbed in CID’s 2007 budget.

The rule proposed by the bill would have no other fiscal implications.

SIGNIFICANT ISSUES

This bill mandates a standard that has not been adopted by the NFPA

. The reference cited is to a

proposed tentative interim amendment (TIA) to the current NFPA 99 Standard for Health Care

Facilities. This proposed amendment has not been adopted by the NFPA. The current NFPA

standard is the minimum standard for all state and local building programs.

The bill would allow the bill’s lower standard to be used in any facility

, not just dentists’ offices.

This proposal was not considered or advocated in the NFPA TIA.

According to the Construction Industries Division, this bill would set a precedent that would

undermine the safety and welfare

of New Mexico’s building codes and standards because it does

not require technical expertise in setting standards. For example, this bill sets a lower standard

for the management of a flammable gas, nitrous oxide, without input from technical experts who

can advise on the life safety issues it presents.

The bill would mandate a specific building standard by statute. This is contrary to existing law,

which requires that building codes and standards be adopted through rule making process. The

bill mandates a building standard without input or other comment from the Construction

Industries Division, the Construction Industries Commission, the construction industries, or the

public.

•

Currently, the law requires that all building codes and standards be adopted by rule

(NMSA 1978, Section 60-13-9 F). Before a proposed standard can be adopted it must

go to public hearing (see NMSA 1978, Section 61-1-29). Before the standard can be

adopted, the CIC must approve it (see NMSA 1978, Section 60-13-6 E.).

•

This bill would require CID to enforce a standard that is not based on a nationally

adopted code. The law defines a code as a compilation of standards “adopted by the

Commission" that are “published by a nationally recognized standards association."

(see NMSA 1978, 60-13-2 R.)

PERFORMANCE IMPLICATIONS

The rule change this substitute bill proposes does not present significant performance issues for

the Division. Upon adoption of the new standard, inspections of dental offices would be

conducted in accordance with the new standard without significant impact on the performance of

this service.

ADMINISTRATIVE IMPLICATIONS

The rule change proposed does not present administrative issues for the Division. Upon adoption

of the new rule, CID would conduct training of state certified inspectors on the new standard.

Because CID regularly conducts code and other inspector trainings, thus there would be little

Senate Bill 366/SCORCS/aHHGAC – Page

3

administrative impact on the Division.

This new statutory standard could require a change in licensing exams as well.

OTHER SUBSTANTIVE ISSUES

This bill apparently conflicts with NMSA 1978, Section 3-17-6, which provides that local

jurisdictions may adopt building codes as long as they are not less

restrictive than the state codes.

Therefore, this bill could result in a local jurisdiction adopting a standard that is lower than the

standard in the bill. There could be no minimum standard at the local level for the management

of this flammable gas

.

TECHNICAL ISSUES

Statutes mandating building standards and codes would be difficult to amend or update. For

example, this bill could result in a standard that may be proven to be unsafe. If so, it could not be

changed for two years.

ALTERNATIVES

CID reports beginning the rulemaking process necessary to make the standards change required

by this legislation.

WHAT WILL BE THE CONSEQUENCES OF NOT ENACTING THIS BILL

Status Quo.

POSSIBLE QUESTIONS

Could the similar results be achieved without legislation.

CS/mt