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SPONSOR: |
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DATE TYPED: |
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HB |
686 |
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SHORT TITLE: |
Homeland Security Department Act |
SB |
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ANALYST: |
Fox-Young |
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APPROPRIATION
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Appropriation
Contained |
Estimated
Additional Impact |
Recurring or
Non-Rec |
Fund Affected |
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FY03 |
FY04 |
FY03 |
FY04 |
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See
Fiscal Narrative |
$250.0 |
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$0.1 Significant |
Recurring |
General
Fund |
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See
Narrative |
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General/OSF/Federal |
(Parenthesis
( ) Indicate Expenditure Decreases)
Responses
Received From
Attorney
General (AG)
Administrative
Office of the Courts (AOC)
State
Highway and Transportation Department (SHTD)
Department
of Public Safety (DPS)
Department
of Health (DOH)
Public
Regulation Commission (PRC)
Department
of Environment (NMED)
Report
to the Legislative Council from the PRC Subcommittee In Response to SJM 41
SUMMARY
Synopsis
of Bill
·
House Bill 686 enacts the Homeland
Security Department Act, creating the Department of Homeland Security, a
cabinet level department in the executive branch.
·
The bill delineates the powers and duties
of the Secretary of Homeland Security, provides for the appointment of
directors in each division and creates bureaus and chiefs of bureaus within
divisions of the department.
·
The bill provides the authority to create
advisory committees that may furnish advice, gather information, make
recommendations and perform such other functions and active
ties
as instructed or delegated by the secretary, such committees being judged as
necessary to fulfill the purposes of the Homeland Security Department.
·
The bill provides that the Homeland
Security Department is authorized to cooperate with the federal government with
regard to homeland security, emergency preparedness, and emergency response
programs in which financial or other participation by the federal government is
authorized or mandated by the state or by federal laws or rules. The secretary is authorized to enter into
agreements and fulfill the purposes of those agreements subject to appropriate
funding. The governor or the secretary
is authorized to designate the department or assign any organizational unit
thereof to be the single point of contact with regard to Homeland Security
emergency preparedness and/or emergency response programs relating to the
federal government. It should be noted
that this is the case whether or not a federal condition exists, which
condition is not defined.
·
The department is granted 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. It is assumed that
law enforcement information will be protected by law enforcement exceptions to
the Inspection of Public Records Act, and further, that criminal intelligence
information may not be releasable under this section.
·
The bill amends Section
·
The bill amends Section
·
The bill amends Section
·
The bill amends Section
·
The bill amends Section
·
The bill amends Section
·
The bill amends Sections 12-10-5,
12-10-6, 12-10-7, 12-10-9, 12-10-10, 12-10-13 regarding local civil emergency
preparedness, mutual aid agreements, the authority to make appropriations and
accept aid, existing services and facilities to be used by agency, enforce
executive
orders and rules respectively, in-state license holders, powers and duties, removing
DPS in all cases and inserting the Secretary of Homeland Security.
·
The bill transfers the State Fire Marshal
Bureau and
·
The bill amends Section 74-4(B)-5,
involving state police emergency response officers, procedures for
notification, cooperation with other state agencies and local governments,
making the Department of Homeland Security the coordinating agency for such
incidents.
·
The bill amends Section 74-4(B)-6,
involving the emergency management task force, and its powers and duties,
making the Secretary of Homeland Security or his designee the chairman. The Public Regulation Commission (PRC) and
the Taxation and Revenue Department (TRD) are removed from participation on the
task force.
·
The bill amends Section 74-4(B)-6.1,
involving hazardous materials, the emergency response administrator, and
his/her duties, removing DPS and inserting the Secretary of Homeland
Security. The bill creates the position
of “hazardous materials emergency response administrator” in the Homeland
Security Department, removing it from DPS and gives the authority for
administering the Emergency Management Act to the Department of Homeland
Security. The bill also amends Section
74-4(B)-8, involving the Hazardous Materials Safety Board, which will now fall
under the authority of the Department of Homeland Security.
·
The bill amends Section 74-4(B)-13,
involving the Orphan Material Recovery Fund, removing DPS and inserting the
Environment Department for purposes of administering and appropriating the
Orphan Hazardous Materials Fund.
·
The bill amends Section 74-4(B)-14,
involving clean up of orphan hazardous materials, removing DPS and inserting
the Environment Department as the agency responsible for clean up.
·
The bill provides for the transfer of
personnel, contractual obligations and property of Fire Marshal Bureau and the
·
The bill appropriates $250,000 from the
general fund to the Department of Homeland Security to pay expenses related to
the creation of the department in fiscal year 2004.
·
There is an emergency clause.
Significant
Issues
“The responsibilities of the State Fire Marshal and
Although
the bill specifies powers and duties to be transferred to the Department of
Homeland Security, with the exception of the transfer of the “hazardous
materials emergency response coordinator,” it does not make specific provisions
for transferring funding or positions from DPS to the new department. (SEE ALSO TECHNICAL ISSUES)
Pursuant
to the Emergency Management Act, as amended, the Secretary of Homeland Security
has final authority to administer the provisions of the Emergency Management
Act, although the Chief of State Police retains the authority to designate
“state police emergency response officers.”
The bill provides that first responders, when they are law enforcement
officers, shall notify these emergency response officers, who shall in turn
notify the state police emergency response center. If the first responder has radio capability
tied into the communications division of the General Services Department (GSD),
the emergency response center is notified. The bill implies that the Department of
Homeland Security is to develop a response center separate from that of State
Police. In implementing the provisions
of the bill, the state may encounter difficulties associated with
decentralization of this sort. There is
the potential for duplication of resources and capabilities.
DPS
notes the apparent conflict between the roles of the State Police, as the
statutorily designated emergency response officers, and the Department of
Homeland Security as the final authority on the Emergency Management Act.
NMED notes that although the bill authorizes the new department to
direct and coordinate the civil emergency preparedness activities of all state
agencies, it is silent as to administrative transfer of NMED Office of
Emergency Preparedness. NMED notes that
the bill specifies that the two NMED representatives on the Emergency
Management Task Force be from the Environmental Protection Division of the
NMED, and that currently the members may be drawn from any subunit of the
agency.
NMED notes the bill’s provision that the NMED Environmental
Protection Division shall provide assistance to State Police Emergency Response
Officers with accidents involving hazardous materials or substances, and the
removal of language regarding NMED assistance with accidents involving
radioactive materials.
NMED notes that the Orphan Material
Recovery Fund, used to contract for the disposal of orphan hazardous materials,
will augment the department’s existing spill response capability through the
Hazardous Waste Emergency Fund.
FISCAL IMPLICATIONS
The appropriation of
$250.0 contained in this bill is a recurring expense to the general fund. Any unexpended or unencumbered balance remaining
at the end of fiscal year 2004 shall revert to the general fund. Funds from the existing programs and
agencies will be transferred to the new department, but it is likely additional
funding will also be required in the future.
Although the bill
contains an emergency clause, the appropriation is for fiscal year 2004. As a result, the bill relies on
appropriations contained in other legislation to fund operations in fiscal year
2003.
PRC indicates that it
currently receives $250.0 each year from fire funds that it applies toward
administering three bureaus. If these
funds are not appropriated to PRC in future years, it is unclear how PRC will
continue to process collections for the fund.
DPS notes that there is a potential for duplication of state services in order to provide adequate resource management and critical incident mitigation, increasing the strain on civilian and commissioned personnel. The department indicates that its information technology infrastructure has exhibited failures in recent months, further noting that the department is stretching its resources to support it. DPS notes that the bill provides for sharing of information within legal parameters, but fails to address the manner in which information will be shared or how the current system will function with additional demands. DPS notes that in the absence of an appropriation, the department will be forced to reduce other services, affecting state and local law enforcement significantly.
CONFLICT, COMPANIONSHIP, RELATIONSHIP
Companion: Because
the bill does not explicitly transfer funding and FTE from DPS to Homeland
Security, it is necessary that companion language (in HB2 or elsewhere) make
those provisions.
Relates to HB 231, SB 194, HB 253, SB 364, HB
254, HB 732, HJM 40, and SJM 30.
Conflicts with HB 652 (
TECHNICAL ISSUES
Language that strikes “marshal” or some reference to the marshal and inserts “fire services division of the homeland security department” should be amended to read “the director of the fires services division of the homeland security department” in all cases where the activities of an individual and not a division are implied.
On page 44, line 23, strike “for coordination.”
It is unclear why the secretary of DFA, rather than the
Secretary of Homeland Security, shall receive appeals and review and certify
determinations. The relevant portion of
the bill follows:
"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."
DPS notes that in 2002, Section
DPS suggests that the responsibility for
incidents and emergencies be clarified and that a threshold for declaring an
event an incident or emergency be established.
DOH
notes that the purpose of the Homeland Security Department as evidenced on
pages 1 and 2 of the bill is narrowly focused on preparedness and response to
terrorism. DOH recommends additional
language regarding natural disasters, man-made disasters, weapons of mass
destruction and other emergency situations that require a broadly coordinated
emergency management structure.
DOH
recommends striking, “the primary care and emergency medical services bureau of
the public health division of the department of health for assistance with
accidents involving casualties” (page 45, Lines 9 through 12) and inserting,
“the department of health for assistance with response to public health
emergencies or other threats to the health and safety of the public.”
DOH recommends striking “the chief of the primary
care and emergency medical services bureau or his designee” (page 47, Lines 6
and 7) and inserting “the secretary of
the department of health or his designee;”
NMED recommends the following amendments:
p. 41, lines 10-11: delete
“hazardous and radioactive materials bureau of the water and waste management
division of the”; p. 45, lines 2-3:
strike “environmental [improvement] protection division of the [health
and]”; p. 46, lines 20-21: strike “environmental [improvement]
protection division”, and insert in lieu of “department of environment”
and p. 46, lines 24-25: strike “environmental
[improvement] protection division”, and insert in lieu of
“department of environment”
OTHER SUBSTANTIVE ISSUES
DOH indicates that it currently has an active MOU with DPS
to transfer $60.0 of Centers for Disease Control (CDC) funds for the purpose of
ensuring seamless coordination of emergency preparedness and response between
the two agencies. This MOU was initiated
by DOH and is intended to fund one FTE to be housed at the
JCF/njw:sb:yr