February 9, 2006, Introduced by Senators VAN WOERKOM, KUIPERS, BIRKHOLZ, JELINEK and ALLEN and referred to the Committee on Agriculture, Forestry and Tourism.
A bill to amend 1945 PA 72, entitled
"An act to prevent the importation from other states, and the
spread within this state, of all serious insect pests and
contagious plant diseases and to provide for their repression and
control, imposing certain powers and duties on the commissioner of
agriculture; to prescribe penalties for the violation of the
provisions of this act; and to repeal certain acts and parts of
acts,"
by amending the title and sections 1, 2, 3, 4, 5, 6, 7, 9, and 10
(MCL 286.251, 286.252, 286.253, 286.254, 286.255, 286.256, 286.257,
286.259, and 286.260), the title and section 9 as amended and
section 10 as added by 2005 PA 52 and section 5 as amended by 2002
PA 175, and by adding section 1a; and to repeal acts and parts of
acts.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
TITLE
An act to prevent the importation from other states, and the
spread within this state, of all serious insect pests and
contagious
plant diseases; and to provide for their repression
abatement
and control; ,
imposing to provide for certain powers
and
duties on of
the commissioner department of agriculture; to
prescribe
remedies and penalties for the violation of the
provisions
of this act; and to repeal certain
acts and parts of
acts.
Sec.
1. (1) It shall be the duty of the commissioner of
agriculture
whenever A person shall not
maintain a public
nuisance. All of the following are considered a public nuisance:
(a) Any premises, article, conveyance, plant, or other thing
that is infected or infested with any plant pest, or where any
plant pest is found, including, but not limited to, any abandoned
or neglected plant, orchard, or crop.
(b) Any plant that may become infected or infested with and
serve to spread a plant pest in this state as determined by order
of the department issued under section 5.
(c) Any host plant designated by the director. The director
may issue an order designating a plant as a host plant. The order
may be limited to a certain geographic area.
(2)
Whenever it comes to his
the attention of
the department
that
any of the dangerous insects or infectious diseases
exist or
are
supposed to exist plant pest
exists within this state, to
the
department shall proceed, without
delay within 5 business
days,
to examine the trees,
shrubs, vines, plants
, or fruits
supposed
to be infested or infected and all other such trees,
shrubs,
vines, plants
, or fruit as he may deem as considered
advisable.
(3)
If, upon examination, destructive
insects or dangerously
infectious
diseases are a plant pest is
found to exist, a
distinguishing
mark shall be placed on the
department shall
designate
the trees, shrubs, vines,
or plants as
a public
nuisance
and shall send a written notice shall
be served upon to
the owner or his or her agent with recommendations for abatement of
that public nuisance within 5 days after receipt of the notice.
When
the owner or his or her agents cannot be found, it shall be
the
duty of the commissioner of agriculture or his deputies to the
department
shall give general notice in
the following manner to
every
owner, possessor, or occupier of land and to every any
person or
persons, firm or corporation having charge of any land
in
this state , whereon upon which neglected,
abandoned, or
semi-abandoned
fruit trees semiabandoned plants
are growing, to
abate
the plant pest or cut and destroy such
plants. ; The
notice
required under this subsection shall include, but not be limited
to,
4 notices each not less than 1 foot
square shall be printed
in clear readable type and posted 1 in each of 4 conspicuous places
in the area, at least 1 to be located on the property. The posting
of
such notices shall take place at least
15 5 days prior
to the
date
upon which the trees must be cut after
the department
determines that the owner or his or her agents cannot be found. At
the
time of posting said of
the notices, a
copy of the same
shall be mailed to every owner, possessor, or occupant or occupier
of
the land and to every person or
persons, firm or corporation
financially
interested therein, or having charge of any lands in
this
state, whereon neglected or abandoned trees are growing, whose
postoffice
address is known the land.
(4) In
case the An owner refuses to accept who disagrees
with
the opinion of the inspector
or inspectors, department
regarding
the nature of an insect or a disease, a plant pest or
the
remedy that shall be employed he for abating the plant pest
may
appeal, within 10 5 days, to the commissioner of
agriculture
director
by serving filing a
written notice of such the
appeal.
The commissioner
of agriculture director shall as soon as
practicable investigate the matter, hold an administrative hearing,
and
order the proper treatment abatement, and his opinion or
orders
if applicable. The order of
the director shall be final. In
cases
where the owner appeals to the commissioner of agriculture,
and
the findings of the original inspector
or inspectors are
approved
affirmed, the expense incurred as a result of appeal
shall be paid by the owner.
Sec. 1a. As used in this act:
(a) "Department" means the department of agriculture and any
agents or inspectors, whether an employee or independent contractor
hired by the department.
(b) "Director" means the director of the Michigan department
of agriculture.
(c) "Host plant" means any plant infected or infested with a
plant pest.
(d) "Person" means any individual, corporation, firm, or other
legal entity.
(e) "Plant" means any tree, shrub, vine, plant, crop, or
fruit.
(f) "Plant pest" means an organism or disease injurious to
plants and includes, but is not limited to, insects, mites, snails,
nematodes, fungi, viruses, bacteria, mycoplasma-like organisms,
weeds, plants, or parasitic plants.
Sec.
2. In case the owner , or person in charge of the
trees,
shrubs, vines or plants
, infected or infested with a
destructive
insect or dangerously contagious disease, plant pest
refuses
or neglects to carry out the department's
orders of the
commissioner
of agriculture within
the period stated in the
notice
served upon him 21 days, the commissioner of agriculture
department
shall employ such aid as may be
necessary to carry out
his
own the orders.
Sec.
3. Any and all neglected or abandoned trees, vines,
shrubs,
plants or parts thereof, which because of the existence
therein
or thereon of injurious or destructive insect pests, or
plant
diseases or other conditions which may constitute a menace to
the
horticulture or agriculture of the county, district, or
vicinity
or which are host plants of or provide a favorable and
likely
harbor for such pests or diseases, which, if they become
established
upon such neglected or abandoned host plants or crops,
would
be a menace to agriculture or horticulture, are hereby
expressly
declared to be public nuisances, and it shall be unlawful
to
maintain the same, and all remedies which are or may be given
for
the prevention or abatement of the nuisance shall apply
thereto.
The director shall charge
the owner for the cost of
abating the nuisance. If the owner fails to pay the charge within
30 days, the director shall certify the amount of the charge, plus
10% per annum interest accruing to that charge, to the local
assessing officer and the local assessing officer shall assess that
amount against the property where the abatement took place. In
addition, the director may collect the charge by any means
authorized by law.
Sec.
4. (1) Whenever the
commissioner of agriculture shall
determine
department determines by inspection that there exists on
any
property or premises within his jurisdiction any trees, vines,
shrubs,
plants
, or parts thereof , which that are or
have been
neglected
or abandoned , which because of the existence therein or
thereon
of injurious or destructive insect and
are infested or
infected
with plant pests or
plant diseases, or other conditions
otherwise constitute a menace to the horticulture or agriculture of
the
county, district, or vicinity, he it
shall make issue a
complete
report of his the
inspection, setting forth in
such
report
a description of the property or premises
upon which the
neglected
or abandoned pest host exists, naming location of the
plant
pest or pests or other
conditions which in his opinion are
infection or infestation considered dangerous to the horticulture
or
agriculture of the county, district, or vicinity and ,
if in
his
judgment the findings justify, he shall state in such report
that
whether the removal or destruction of the neglected or
abandoned trees,
vines, shrubs, plants , or parts thereof, will
provide
the best means for the elimination of such menace the
plant pest to the horticulture and agriculture of the county,
district, or vicinity.
(2) In the case where the owner of the property or premises
chooses to abate the plant pest, the owner of the premises shall
consult with and have the abatement verified by a certified crop
adviser for at least 3 years after the abatement.
Sec.
5. The director of the department of
agriculture and
his
or her inspectors, deputies, assistants, and employees may
enter upon any premises or land in the state for the purpose of
examining trees,
shrubs, vines, and plants for the presence of
destructive
insects or diseases, plant
pests and, if any such
insects
or diseases are found, may , under the provisions
of this
act,
take the steps as may be necessary to exterminate
them
order
their abatement. No
damage Damages shall not
be awarded for
the
destruction of or injury to any trees, shrubs, vines, plants
,
or fruit or for injury to same if done by the director of the
department of
agriculture or his or her authorized inspectors and
assistants,
in accordance with the provisions of this act ,
and
if
the director department considers it necessary in order to
suppress
dangerous insects and diseases, when the trees, shrubs,
vines,
and plants abate plant pests
that have already been
attacked
by dangerous insects or diseases infested
or infected any
plants. Whenever any dangerous plant disease,
or destructive
insect
pest,
which is new to or which has not become widely
prevalent or distributed through or within the state, is found upon
any trees,
shrubs, vines, or plants,
in case it is considered
necessary
in order to prevent the spread and the dissemination of
said
insect, or disease, the director of the department of
agriculture
may cause any tree, shrub, vine, or plant
likely to
be
attacked by such insect or disease plant pest, and which are
is
growing within 3,000 feet of where the dangerous
insect or
disease
plant pest has been found, to be treated with approved
remedies,
or, if this is not feasible, to be destroyed abated.
However,
if it becomes necessary to destroy any
trees, shrubs,
vines,
or plants
which have not
already become attacked
infested
or infected by said
the new and dangerous insect or
disease
plant pest, the owner shall be recompensed compensated
for their
the actual value, the amount to be fixed by 3 parties,
1
to be selected by the owner, another by the director of the
department, of
agriculture, and the third party to be selected by
the other
2 so selected department and
the owner. The amount
awarded ,
when shall be approved by the director of
the
department
of agriculture, shall be certified to the state
treasurer,
who shall draw a warrant on the state treasurer for the
payment
of the same from the general fund of the state.
Sec.
6. The commissioner of agriculture is hereby authorized
to
make such rules and regulations and establish such quarantines
as
he shall deem necessary for the proper enforcement of this act,
and
all orders, rules and regulations promulgated by the
commissioner
of agriculture pursuant to the act shall have the
force
and effect of law. The
director may promulgate rules under
the administrative procedures act of 1969, 1969 PA 306, MCL 24.201
to
24.328, to enforce and administer this act.
Sec.
7. In construing and enforcing provisions of this act,
the act, omission, or failure of any official, agent, or other
person acting for, or employed by, any association, partnership, or
corporation within the scope of his or her employment or office,
shall
in every case also be deemed considered
the act, omission,
or
failure of such the
association, partnership, or
corporation,
as well as of the person.
Sec. 9. (1) Subject to subsection (2), a person who maintains
a
public nuisance in violation of section
3 1 or
otherwise
violates this act is guilty of a misdemeanor punishable by a fine
of not less than $25.00 or more than $100.00 or by imprisonment for
not more than 90 days, or both.
(2) Beginning September 1, 2005, subsection (1) does not apply
to a violation described in section 10.
Sec. 10. (1) A person who violates a rule promulgated or order
issued under this act that requires the destruction of plants is
responsible for a state civil infraction and shall be fined not
more than $1,000.00 plus expenses incurred by the department in
destroying the plants.
(2) A person who violates a quarantine rule promulgated or
quarantine order issued under this act is responsible for a state
civil infraction and shall be fined not less than $1,000.00 or more
than $10,000.00. However, if the person voluntarily reported the
violation to the department before it was otherwise known to the
department or the person had reason to believe the violation was
about to become known to the department, the person shall be fined
not more than $500.00.
(3) Beginning September 1, 2005, a person who knowingly
violates a quarantine rule promulgated or quarantine order issued
under this act is guilty of a misdemeanor and may be imprisoned for
not more than 1 year and shall be fined not less than $1,000.00 or
more than $10,000.00.
(4) Beginning September 1, 2005, a person who intentionally
violates a quarantine rule promulgated or quarantine order issued
under this act, for the purpose of causing damage to plants,
natural resources, or agricultural, silvicultural, or horticultural
products or resources, is guilty of a felony punishable by
imprisonment for not more than 5 years or a fine of not more than
$250,000.00, or both.
(5) A person who violates a quarantine rule promulgated or
quarantine order issued under this act is liable for any damages to
plants, natural resources, or agricultural, silvicultural, or
horticultural products or resources resulting from the violation,
including, but not limited to, costs incurred to investigate,
monitor, prevent, or minimize such damages.
(6) The remedies under this act are independent and
cumulative. The use of 1 remedy by a person shall not bar the use
of other lawful remedies allowed by law.
Enacting section 1. 1929 PA 86, MCL 286.81 to 286.87, is
repealed.