HB0302

HOUSE BILL 302

53rd legislature - STATE OF NEW MEXICO - second session, 2018

INTRODUCED BY

Nate Gentry

AN ACT

RELATING TO PROPERTY CRIME; ENACTING THE AUTOMOBILE THEFT PREVENTION ACT; CREATING THE AUTOMOBILE THEFT PREVENTION COMMISSION; PRESCRIBING POWERS AND DUTIES; CREATING A FUND; IMPOSING A FEE; PROVIDING AN EXCEPTION FROM THE INSPECTION OF PUBLIC RECORDS ACT; PROVIDING PENALTIES; MAKING AN APPROPRIATION.

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

SECTION 1. [NEW MATERIAL] SHORT TITLE.--Sections 1 through 14 of this act may be cited as the "Automobile Theft Prevention Act".

SECTION 2. [NEW MATERIAL] DEFINITIONS.--As used in the Automobile Theft Prevention Act:

A. "authorized insurer" means an insurer that offers motor vehicle insurance for sale in this state and that holds a valid and subsisting certificate of authority, issued by the office of superintendent of insurance, to transact insurance in this state;

B. "automobile" means a self-propelled vehicle that is subject to registration pursuant to Section 66-3-1 NMSA 1978, that may be used on the public highways, that is not exempt from the provisions of the Mandatory Financial Responsibility Act and that has a gross vehicle weight of less than twenty-six thousand pounds;

C. "commission" means the automobile theft prevention commission;

D. "department" means the department of public safety;

E. "fund" means the automobile theft prevention fund;

F. "highway" means every road, highway, thoroughfare, street or way, including toll roads, generally open to the use of the public as a matter of right for the purpose of motor vehicle travel regardless of whether the highway is temporarily closed for the purpose of construction, reconstruction, maintenance or repair;

G. "insurer" means every person engaged as principal and as indemnitor, surety or contractor in the business of entering into contracts of insurance; and

H. "law enforcement agency" means a law enforcement agency of the state or political subdivision of the state.

SECTION 3. [NEW MATERIAL] AUTOMOBILE THEFT PREVENTION COMMISSION CREATED--MEMBERSHIP.--

A. The "automobile theft prevention commission" is created and is administratively attached to the department, which shall provide assistance to the commission as needed. The commission shall consist of:

(1) the Albuquerque police chief and a police chief appointed by the executive director of the New Mexico municipal league;

(2) the Bernalillo county sheriff and a county sheriff appointed by the executive director of the New Mexico association of counties;

(3) the district attorney for the second judicial district and a district attorney appointed by the New Mexico district attorneys' association;

(4) two representatives of authorized insurers appointed by the governor;

(5) two members of the general public appointed by the governor;

(6) the secretary of taxation and revenue or the secretary's designee; and

(7) the secretary of public safety or the secretary's designee.

B. The initial appointed members of the commission shall serve staggered terms of four years or less, so that the term of at least one member expires on January 1 of each year. Thereafter, appointed members of the commission shall serve four-year terms. After serving two four-year terms, an appointed member shall not be eligible to be a member of the commission until one full term has intervened.

C. The original appointing authority shall fill a vacancy on the commission for the remainder of an unexpired term. A member whose term has expired shall continue to serve until a successor is appointed and qualified.

D. At the first meeting each year, the members shall select a chair from among the members. The commission shall meet not less than four times per year and at the call of the chair or of seven members. A majority of the members constitutes a quorum for the transaction of any business. The affirmative vote of at least a majority of a quorum present shall be necessary for any action to be taken by the commission. A vacancy in the membership of the commission shall not impair the right of a quorum to exercise all rights and perform all duties of the commission.

E. While performing their duties, the appointed members of the commission are entitled to per diem and mileage as provided in the Per Diem and Mileage Act and shall receive no other compensation, perquisite or allowance.

F. If the chair of the commission knows that potential grounds for removal of an appointed member of the commission exist, the chair shall notify the member's appointing authority. The appointing authority shall remove the member if the appointing authority finds that the member:

(1) was not qualified to serve at the time of the member's appointment or is no longer qualified to serve; or

(2) is absent from more than one-half of the regularly scheduled meetings during a calendar year unless the absences are excused by a majority vote of the commission.

SECTION 4. [NEW MATERIAL] COMMISSION POWERS AND DUTIES.--

A. The commission may:

(1) make grants to law enforcement agencies for projects or programs that meet the criteria of the Automobile Theft Prevention Act;

(2) promulgate rules in accordance with the Automobile Theft Prevention Act; and

(3) contract for the performance of services required by the Automobile Theft Prevention Act.

B. The commission shall:

(1) employ an executive director, who shall be exempt from the Personnel Act;

(2) approve, disapprove, amend or modify the annual budget prepared by the executive director; provided that the commission shall not approve an annual budget in fiscal year 2020 or any subsequent fiscal year that allows salary and administrative expenses to exceed ten percent of the income credited to the fund for the previous fiscal year;

(3) study the incidence of automobile theft in the state, including identifying areas of the state where the incidence of automobile theft is highest;

(4) study methods of reducing or preventing automobile theft;

(5) study methods of increasing the effectiveness of automobile theft prosecution;

(6) educate and assist law enforcement agencies and the public in reducing or preventing automobile theft;

(7) annually develop, update and recommend to law enforcement agencies a plan to reduce or prevent automobile theft;

(8) establish procedures governing terms, conditions and priorities for providing grants to law enforcement agencies;

(9) monitor law enforcement agencies' use of grants by reviewing annual reports submitted by those agencies to the commission to ensure that grants are used consistently with the agencies' grant applications; and

(10) report by September 30 of each year to the governor and to the appropriate legislative interim committee on its activities during the preceding fiscal year and plans for the current fiscal year.

SECTION 5. [NEW MATERIAL] EXECUTIVE DIRECTOR--DUTIES AND POWERS.--The executive director shall assist the commission in the performance of its duties and may employ and supervise other necessary employees pursuant to the provisions of the Personnel Act.

SECTION 6. [NEW MATERIAL] INSURANCE PREMIUM MONITORING.--The superintendent of insurance shall prepare and provide to the commission by September 30 of each year a report of the statewide average cost for the previous fiscal year of liability insurance coverage required under the Mandatory Financial Responsibility Act.

SECTION 7. [NEW MATERIAL] GRANT RECIPIENTS--GRANT APPLICATION--REQUIREMENTS.--

A. A law enforcement agency may submit an application to the commission for a grant from the fund as provided by rule and pursuant to the provisions of this section.

B. Grants may be awarded for a project or program that:

(1) improves or expands reporting on the incidence of automobile theft in the state, including identifying areas of the state where the incidence of automobile theft is highest;

(2) reduces or prevents automobile theft;

(3) increases the effectiveness of automobile theft prosecution;

(4) educates a law enforcement agency or the public on how to reduce or prevent automobile theft; or

(5) the commission determines addresses automobile theft prevention or prosecution.

C. An application for a grant shall be in a form and contain the information required by the commission, including:

(1) a description of the project or program and an explanation of how the project or program meets at least one of the criteria set forth in Subsection B of this section;

(2) the amount of money requested;

(3) the estimated starting date and completion date of the project or program;

(4) a schedule for project development and completion, including measurable goals and time limits for those goals; and

(5) provisions for performance review and actions to be taken upon a determination that the project or program has not met its goals and time limits.

D. A law enforcement agency awarded a grant pursuant to this section shall report to the commission on the status and completion of the project or program as provided by rule.

SECTION 8. [NEW MATERIAL] AUTOMOBILE THEFT PREVENTION FUND--EXPENDITURES.--The "automobile theft prevention fund" is created in the state treasury. The fund consists of fees collected pursuant to the Automobile Theft Prevention Act, appropriations, gifts, grants, donations and bequests made to the fund. Money in the fund shall not revert to the general fund at the end of a fiscal year. The department shall administer the fund, and money in the fund is appropriated to the commission to carry out the purposes of the Automobile Theft Prevention Act, including providing commission-approved grants to law enforcement agencies for programs for automobile theft education, prevention and prosecution. Expenditures from the fund shall be on warrants drawn by the secretary of finance and administration pursuant to vouchers signed by the executive director of the commission or the executive director's designee.

SECTION 9. [NEW MATERIAL] FEES.--An authorized insurer shall pay a semiannual fee of fifty cents ($.50) for each automobile that is insured under a motor vehicle liability insurance policy issued by the authorized insurer. The authorized insurer shall transmit the fee to the office of superintendent of insurance on or before January 31 and on or before July 31 of each year. The payment due on or before January 31 shall include fees collected for vehicles insured under policies issued during the period from July 1 through December 31 of the previous year. The payment due on or before July 31 shall include fees collected for vehicles insured under policies that are issued during the period from January 1 through June 30 of the same year. The office of superintendent of insurance shall deposit the fees into the fund.

SECTION 10. [NEW MATERIAL] FAILURE TO PAY FEE--PENALTY.-- If an authorized insurer fails to pay the fee required pursuant to the Automobile Theft Protection Act when due, the superintendent of insurance shall suspend the authorized insurer's certificate of authority to transact insurance in this state or impose a civil penalty not to exceed one hundred twenty percent of the fee due, or both.

SECTION 11. [NEW MATERIAL] INFORMATION SHARING.--

A. Each authorized insurer shall, at the request of the commission, provide information that the authorized insurer has in its possession or control relating to automobile theft loss, including:

(1) an application for an insurance policy;

(2) policy premium payment records;

(3) a history of previous claims made by the insured; and

(4) statements of any person pertaining to the loss, proof of loss and any other information relating to the loss.

B. If an authorized insurer believes an automobile theft loss in which it has an interest may be based on a false or fraudulent claim, the authorized insurer shall notify the commission in writing and provide to the commission all information developed from the authorized insurer's inquiry into the loss; provided that, if the authorized insurer notifies the commission that the authorized insurer has reported the loss to the office of superintendent of insurance pursuant to requirements for reporting fraudulent activity, no additional report is required, and the commission shall obtain the information from the office of superintendent of insurance.

C. The commission shall disclose information concerning an automobile theft loss to a law enforcement agency upon request.

D. An authorized insurer that has provided information to the commission concerning an automobile theft loss may request in writing from the commission all information relating to that loss. The commission shall provide the information in its possession or control within thirty days. The information shall not include information prohibited from disclosure pursuant to the Arrest Record Information Act or information that a law enforcement agency has determined the release of which would be detrimental to an ongoing criminal investigation.

SECTION 12. [NEW MATERIAL] CONFIDENTIALITY OF INFORMATION.--Personal and vehicle information voluntarily submitted by a person to the commission pursuant to the Automobile Theft Prevention Act, or provided by the commission to an authorized insurer, law enforcement agency or the commission, as defined by the Automobile Theft Prevention Act, is not a public record and is not subject to disclosure pursuant to the Inspection of Public Records Act.

SECTION 13. [NEW MATERIAL] DISCLOSURE--IMMUNITY-- PENALTIES.--

A. The commission or an authorized insurer that receives information pursuant to the Automobile Theft Prevention Act shall not disclose the information unless authorized pursuant to the Automobile Theft Prevention Act or as required pursuant to a court order; provided that the commission or an authorized insurer that releases information inadvertently or in good faith pursuant to the Automobile Theft Prevention Act is immune from civil liability or criminal penalty based on the release of the information.

B. A person who knowingly fails to provide information to the commission upon request, or who knowingly discloses information in violation of this section, is guilty of a misdemeanor and shall be sentenced in accordance with the provisions of Section 31-19-1 NMSA 1978.

SECTION 14. [NEW MATERIAL] TERMINATION OF AGENCY LIFE-- DELAYED REPEAL.--

A. The automobile theft prevention commission is terminated on July 1, 2021 pursuant to the provisions of the Sunset Act. The commission shall continue to operate according to the provisions of the Automobile Theft Prevention Act until July 1, 2022. Effective July 1, 2022, the Automobile Theft Prevention Act is repealed.

B. At a public hearing held pursuant to Section 12-9-19 NMSA 1978, the legislative finance committee shall determine whether the statewide average cost of liability insurance coverage required under the Mandatory Financial Responsibility Act has decreased. If the statewide average cost of liability insurance coverage required under the Mandatory Financial Responsibility Act has decreased, the legislative finance committee shall submit legislation for continuation of the commission as an amendment of the delayed repeal section covering the creation of the commission and its related statutes.

SECTION 15. Section 59A-6-1 NMSA 1978 (being Laws 1984, Chapter 127, Section 101, as amended) is amended to read:

"59A-6-1. FEE SCHEDULE.--The superintendent shall collect the following fees:

A. insurer's certificate of authority -

(1) filing application for certificate of authority, and issuance of certificate of authority, including filing of all charter documents, financial statements, service of process, power of attorney, examination reports and other documents included with and part of the application

. . . . . . . . . . . . . . . . . . . . . . . . . . . $1,000.00

(2) annual continuation of certificate of authority, per kind of insurance. . . . . . . . . . . . .200.00

(3) reinstatement of certificate of authority (Section 59A-5-23 NMSA 1978). . . . . . . . . . . . . . .150.00

(4) amendment to certificate of

authority. . . . . . . . . . . . . . . . . . . . . . . . 200.00

B. charter documents - filing amendment to any charter document (as defined in Section 59A-5-3

NMSA 1978). . . . . . . . . . . . . . . . . . . . . . . . 10.00

C. annual statement of insurer, filing. . . .200.00

D. service of process, acceptance by superintendent and issuance of certificate of service. . . . . . . . . . 10.00

E. producer licenses and appointments -

(1) filing application for original producer license and issuance of license. . . . . . . . . . . . . .30.00

(2) biennial continuation of license. . .60.00

(3) appointment of producer -

(a) filing appointment, per kind of insurance, each insurer. . . . . . . . . . . . . . . . . .20.00

(b) annual continuation of appointment, per kind of insurance, each insurer. . . . . . . . . . . .20.00

(4) temporary license filing

application. . . . . . . . . . . . . . . . . . . . . . . .30.00

F. agency business entity license and affiliations -

(1) filing application for original agency business entity license and issuance of license. . . . . .30.00

(2) biennial continuation of license. . .60.00

(3) filing of individual affiliation . . 20.00

(4) annual continuation of individual affiliation. . . . . . . . . . . . . . . . . . . . . . . .20.00

G. insurance vending machine license -

(1) filing application for original license and issuance of license, each machine. . . . . . . . . . .25.00

(2) biennial continuation of license, each machine. . . . . . . . . . . . . . . . . . . . . . . . . .50.00

H. examination for license, application for examination conducted directly by the superintendent, each grouping of kinds of insurance to be covered by the examination as provided by the superintendent's rules, and payable as to each instance of examination. . . . . . . . . . . . . . . 75.00

I. surplus lines insurer - filing application for qualification as eligible surplus lines insurer. . . . 1,000.00

J. surplus lines broker license -

(1) filing application for original license and issuance of license. . . . . . . . . . . . . . . . . 100.00

(2) biennial continuation of license. . . . .

. . . . . . . . . . . . . . . . . . . . . . . . . . . . .200.00

K. surplus lines brokerage business entity license and affiliations -

(1) filing application for original surplus lines brokerage business entity license and issuance of license . . . . . . . . . . . . . . . . . . . . . . . . . . . . .100.00

(2) filing of individual affiliation. . .20.00

(3) annual continuation of individual affiliation. . . . . . . . . . . . . . . . . . . . . . . .20.00

L. adjuster license -

(1) filing application for original license and issuance of license. . . . . . . . . . . . . . . . . .30.00

(2) biennial continuation of

license. . . . . . . . . . . . . . . . . . . . . . . . . .60.00

M. insurance consultant license -

(1) filing application for original license and issuance of license. . . . . . . . . . . . . . . . . .50.00

(2) application examination. . . . . . . 75.00

(3) biennial continuation of license. . 100.00

N. viatical settlements license -

(1) providers -

(a) filing application for original license and issuance of license. . . . . . . . . . . . 1,000.00

(b) biennial continuation of

license. . . . . . . . . . . . . . . . . . . . . . . . . 400.00

(2) brokers -

(a) filing application for original license and issuance of license. . . . . . . . . . . . . 100.00

(b) biennial continuation of

license. . . . . . . . . . . . . . . . . . . . . . . . . 200.00

(3) brokerages -

(a) filing application for original business entity license and issuance of license. . . . . 100.00

(b) biennial continuation of

license. . . . . . . . . . . . . . . . . . . . . . . . . 200.00

affiliation. . . . . . . . . . . . . . . . . . . . . . . .20.00

(d) annual continuation of individual affiliation. . . . . . . . . . . . . . . . . . . . . . . .20.00

O. advisory organization license -

(1) filing application for license and issuance of license. . . . . . . . . . . . . . . . . . . 100.00

(2) annual continuation of

license. . . . . . . . . . . . . . . . . . . . . . . . . 100.00

P. nonprofit health care plans -

(1) filing application for preliminary permit and issuance of permit. . . . . . . . . . . . . . . . . .100.00

(2) certificate of authority, application, issuance, continuation, reinstatement, charter documents - same as for insurers

(3) annual statement, filing. . . . . . 200.00

Q. prepaid dental plans -

(1) certificate of authority, application, issuance, continuation, reinstatement, charter documents - same as for insurers

(2) annual report, filing. . . . . . . .200.00

R. prearranged funeral insurance - application for certificate of authority, issuance, continuation, reinstatement, charter documents, filing annual statement, licensing of sales representatives - same as for insurers

S. premium finance companies -

(1) filing application for original license and issuance of license. . . . . . . . . . . . . . . . . 100.00

(2) annual renewal of license. . . . . .100.00

T. motor clubs -

(1) certificate of authority -

(a) filing application for original certificate of authority and issuance of certificate of authority. . . . . . . . . . . . . . . . . . . . . . . . 200.00

(b) annual continuation of certificate of authority. . . . . . . . . . . . . . . . . . . . . . .100.00

(2) sales representatives -

(a) filing application for registration or license and issuance of registration or license, each representative. . . . . . . . . . . . . . . . . . . . . . 30.00

(b) biennial continuation of registration or license, each representative. . . . . . . 60.00

U. bail bondsmen -

(1) filing application for original license as bail bondsman or solicitor, and issuance of license

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30.00

(2) examination for license, each instance of examination. . . . . . . . . . . . . . . . . . . . . . . .50.00

(3) biennial continuation of

license. . . . . . . . . . . . . . . . . . . . . . . . . .60.00

V. required filing of forms or rates - by all lines of business other than property or casualty -

(1) rates. . . . . . . . . . . . . . . . 50.00

(2) major form - each new policy and each package submission, which can include multiple policy forms, application forms, rider forms, endorsement forms or amendment forms. . . . . . . . . . . . . . . . . . . . . . . . . . .30.00

(3) incidental forms and rates - forms filed for informational purposes; riders, applications, endorsements and amendments filed individually; rate service organization reference filings; rates filed for informational

purposes. . . . . . . . . . . . . . . . . . . . . . . . . 15.00

W. health maintenance organizations -

(1) filing an application for a certificate of authority. . . . . . . . . . . . . . . . . . . . . . . 1,000.00

(2) annual continuation of certificate of authority. . . . . . . . . . . . . . . . . . . . . . . . 200.00

(3) filing each annual report . . . . 200.00

(4) filing an amendment to organizational documents requiring approval. . . . . . . . . . . . . . .200.00

(5) filing informational amendments. . . 50.00

X. purchasing groups and foreign risk retention groups -

(1) original registration. . . . . . . .500.00

(2) annual continuation of

registration. . . . . . . . . . . . . . . . . . . . . . .200.00

(3) producer fees - same as for authorized insurers

Y. third party administrators -

(1) filing application for original business entity insurance administrator license. . . . . . . . . .100.00

(2) biennial continuation or renewal

of license. . . . . . . . . . . . . . . . . . . . . . . .200.00

(3) examination for license, each

examination. . . . . . . . . . . . . . . . . . . . . . . .75.00

(4) filing of annual report. . . . . . . 50.00

Z. miscellaneous fees -

(1) duplicate license. . . . . . . . . . 30.00

(2) name change. . . . . . . . . . . . . 30.00

(3) for each signature and seal of superintendent affixed to any instrument. . . . . . . . . 10.00

AA. pharmacy benefits managers -

(1) filing an application for a

license. . . . . . . . . . . . . . . . . . . . . . . . 1,000.00

(2) annual continuation of license, each

year continued. . . . . . . . . . . . . . . . . . . . . .500.00

(3) filing each annual report. . . . . .200.00

(4) filing an amendment to organizational

documents requiring approval. . . . . . . . . . . . . . .200.00

(5) filing informational amendments. . .100.00

BB. independent review organizations

(1) filing an application for a

license. . . . . . . . . . . . . . . . . . . . . . . . . 250.00

(2) biennial continuation of license. . 100.00

CC. continuing education providers

(1) filing an application for a course of instruction. . . . . . . . . . . . . . . . . . . . . . . .80.00

(2) biennial continuation of course of instruction. . . . . . . . . . . . . . . . . . . . . . . .40.00

DD. semiannual fee imposed pursuant to the Automobile Theft Prevention Act for each automobile that is insured under a motor vehicle liability insurance policy issued by an authorized insurer. . . . . . . . . . . . . . . . . 0.50.

An insurer shall be subject to additional fees or charges, termed retaliatory or reciprocal requirements, whenever form or rate-filing fees in excess of those imposed by state law are charged to insurers in New Mexico doing business in another state or whenever a condition precedent to the right to issue policies in another state is imposed by the laws of that state over and above the conditions imposed upon insurers by the laws of New Mexico; in those cases, the same form or rate-filing fees may be imposed upon an insurer from another state transacting or applying to transact business in New Mexico so long as the higher fees remain in force in the other state. If an insurer does not comply with the additional retaliatory or reciprocal requirement charges imposed under this subsection, the superintendent may refuse to grant or may withdraw approval of the tendered form or rate filing.

All fees are earned when paid and are not refundable."

SECTION 16. Section 59A-6-5 NMSA 1978 (being Laws 1984, Chapter 127, Section 105, as amended) is amended to read:

"59A-6-5. DISTRIBUTION OF OFFICE COLLECTIONS.--

A. All money received by the office of superintendent of insurance for fees, licenses, penalties and taxes shall be paid daily by the superintendent to the state treasurer and credited to the "insurance department suspense fund" except as provided by the Law Enforcement Protection Fund Act and the Automobile Theft Prevention Act.

B. The superintendent may authorize the refund of money erroneously paid as fees, licenses, penalties or taxes from the insurance department suspense fund under request for refund made within three years after the erroneous payment. In the case of premium taxes erroneously paid or overpaid in accordance with law, refund may also be requested as a credit against premium taxes due in any annual or quarterly premium tax return filed within three years of the erroneous or excess payment.

C. If required by a compact to which New Mexico has joined pursuant to law, the superintendent shall authorize the allocation of premiums collected pursuant to Section 59A-14-12 NMSA 1978 to other states that have joined the compact pursuant to an allocation formula agreed upon by the compacting states.

D. The "insurance operations fund" is created in the state treasury. The fund shall consist of the distributions made to it pursuant to Subsection E of this section. The legislature shall annually appropriate from the fund to the division those amounts necessary for the division to carry out its responsibilities pursuant to the Insurance Code and other laws. Any balance in the fund at the end of a fiscal year shall revert to the general fund.

E. At the end of every month, after applicable refunds are made pursuant to Subsection B of this section and after any allocations have been made pursuant to Subsection C of this section, the treasurer shall make the following transfers from the balance remaining in the insurance department suspense fund:

(1) to the "fire protection fund", that part of the balance derived from property and vehicle insurance business;

(2) to the insurance operations fund, that part of the balance derived from the fees imposed pursuant to Subsections A and E of Section 59A-6-1 NMSA 1978 other than fees derived from property and vehicle insurance business; and

(3) to the general fund, the balance remaining in the insurance department suspense fund derived from all other kinds of insurance business."

SECTION 17. APPROPRIATION.--One hundred fifty thousand dollars ($150,000) is appropriated from the general fund to the automobile theft prevention fund for expenditure in fiscal year 2019 and subsequent fiscal years to carry out the provisions of the Automobile Theft Prevention Act. Any unexpended or unencumbered balance remaining at the end of a fiscal year shall not revert to the general fund.

SECTION 18. EFFECTIVE DATE.--The effective date of the provisions of this act is July 1, 2018.

- 24 -