HB-4323, As Passed Senate, June 27, 2008

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 4323

     A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 81115, 81129, 81131, 81133, and 81147 (MCL

324.81115, 324.81129, 324.81131, 324.81133, and 324.81147),

sections 81115 as amended by 2003 PA 111, section 81129 as amended

by 2008 PA 164, section 81131 as added by 1995 PA 58, section 81133

as amended by 1998 PA 86, and section 81147 as amended by 2004 PA

587.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 81115. (1) A person shall not operate an ORV under any of

the following conditions unless the ORV is licensed with the

department or a dealer as provided under this part:

House Bill No. 4323 as amended June 27, 2008

     (a) Except as otherwise provided by law, an ORV shall not be

operated on or over land, snow, ice, <<marsh, swampland,>> or other

natural terrain. unless licensed by the owner with the department

or a dealer as provided in this part.

     (b) Except as otherwise provided in this part, a vehicle

operating on a forest trail or in a designated area. shall be

licensed under this part.

     (c) Except as otherwise provided in section 81102, on the

maintained portion of a road or street.

     (2) Licensure is not required for an ORV used exclusively in a

safety and training program as required in section 81129.

     Sec. 81129. (1) Subject to subsections (2), (3), (17), and

(18), a parent or legal guardian of a child less than 16 years of

age shall not permit the child to operate an ORV unless the child

is under the direct visual supervision of an adult and the child

has in his or her immediate possession an ORV safety certificate

issued pursuant to this part or a comparable ORV safety certificate

issued under the authority of another state or a province of

Canada.

     (2) Subject to subsection (18), a parent or legal guardian of

a child less than 12 years of age shall not permit the child to

operate a 4-wheeled ATV, unless the child is not less than 10 years

of age and is on private land owned by a parent or legal guardian

of the child. This subsection does not apply to the operation of an

ATV used in agricultural operations.

     (3) A parent or legal guardian of a child less than 16 years

of age shall not permit the child to operate a 3-wheeled ATV.

     (4) Subject to subsections (5), (6), (17), and (18), the owner

or person in charge of an ORV shall not knowingly permit the

vehicle to be operated by a child less than 16 years of age unless

the child is under the direct visual supervision of an adult and

the child has in his or her immediate possession an ORV safety

certificate issued pursuant to this part or a comparable ORV safety

certificate issued under the authority of another state or a

province of Canada.

     (5) Subject to subsection (18), the owner or person in charge

of a 4-wheeled ATV shall not knowingly permit the vehicle to be

operated by a child less than 12 years of age, unless the child is

not less than 10 years of age and is on private land owned by a

parent or legal guardian of the child. This subsection does not

apply to the operation of an ATV used in agricultural operations.

     (6) The owner or person in charge of a 3-wheeled ATV shall not

knowingly permit the vehicle to be operated by a child less than 16

years of age.

     (7) The owner or person in charge of an ORV shall not

knowingly permit the vehicle to be operated by a person who is

incompetent to operate the vehicle because of mental or physical

disability except as provided in section 81131.

     (8) The department shall implement a comprehensive ORV

information, safety education, and training program that shall

include the training of operators and the preparation and

dissemination of information and safety advice to the public. The

program shall provide for the training of youthful operators and

for the issuance of ORV safety certificates to those who

successfully complete the training provided under the program and

may include separate instruction for each type of ORV.

     (9) In implementing a program that is established pursuant to

this section under subsection (8), the department shall cooperate

with private organizations and associations, private and public

corporations, the department of education, the department of state,

and local governmental units. The department shall consult with ORV

and environmental organizations and associations in regard to the

subject matter of a training program and performance testing that

leads to certification of ORV operators.

     (10) The department may designate a person it considers

qualified to provide course instruction and to award ORV safety

certificates.

     (11) The department may promulgate rules to implement

subsections (8) to (10) and (18).

     (12) Subject to subsections (13), (14), (17), and (18), a

child who is less than 16 years of age may shall not operate an ORV

if unless the child is under the direct visual supervision of an

adult and the child has in his or her immediate possession an ORV

safety certificate issued pursuant to this section or a comparable

ORV safety certificate issued under the authority of another state

or a province of Canada.

     (13) Subject to subsection (18), a child who is less than 12

years of age shall not operate a 4-wheeled ATV, unless the child is

not less than 10 years of age and is on private land owned by a

parent or legal guardian of the child. This subsection does not

apply to the operation of an ATV used in agricultural operations.

     (14) A child who is less than 16 years of age shall not

operate a 3-wheeled ATV.

     (15) Subject to subsection (18), when operating an ORV, under

subsection (12), a child who is less than 16 years of age shall

present the ORV safety certificate to a peace officer upon demand.

     (16) Notwithstanding any other provision of this section, an

operator who is less than 12 years of age shall not cross a highway

or street. An operator who is not less than 12 years of age but

less than 16 years of age may cross a highway or street or operate

on the right-of-way or shoulder of designated access routes roads

and streets on which ORV use is authorized pursuant to section

81131 81131(2), (3), or (5) if the operator has a valid ORV safety

certificate in his or her immediate possession and meets any other

requirements under this section for operation of the vehicle.

     (17) The requirement of possession or presentation of an ORV

safety certificate under this section does not apply until

implementation of the program for the vehicle proposed to be

operated required by subsection (8).

     (18) The requirement that a child possess an ORV safety

certificate to operate an ORV, and the requirement that a child who

is less than 12 years of age not operate a 4-wheeled ATV unless the

child is not less than 10 years of age and is on private land owned

by a parent or legal guardian of the child, do not apply if all of

the following requirements are met:

     (a) The child is participating in an organized ORV riding or

racing event held on land not owned by this state.

     (b) The child's parent or legal guardian has provided the

event organizer with written permission for the child to

participate in the event.

     (c) The event organizer has not less than $500,000.00

liability insurance coverage for the event.

     (d) A physician or physician's assistant licensed or otherwise

authorized under part 170 or 175 of the public health code, 1978 PA

368, MCL 333.17001 to 333.17084 and 333.17501 to 333.17556, or a

paramedic or emergency medical technician licensed under part 209

of the public health code, 1978 PA 368, MCL 333.20901 to 333.20979,

is present at the site of the event or available on call.

     (e) The event is at all times under the direct visual

supervision of adult staff of the event organizer and a staff

member serves as a flagger to warn ORV riders if another ORV rider

is injured or an ORV is inoperable in the ORV operating area.

     (f) Fencing or another means of crowd control is used to keep

spectators out of the ORV operating area.

     (g) If the event is on a closed course, dust is controlled in

the ORV operating area and the riding surface in the ORV operating

area is otherwise properly prepared.

     (h) Three-wheeled ATVs are not used by participants.

     (i) Any ATVs used by participants are equipped with a side

step bar or comparable safety equipment and with a tether kill

switch, and the tether is used by all participants.

     (j) Each participant in the event wears a crash helmet

approved by the United States department of transportation, a

protective long-sleeved shirt or jacket, long pants, boots, and

protective gloves.

     (k) Any other applicable requirements of this part or rules

promulgated under this part are met.

     (19) If a child less than 16 years of age participates and is

injured in an organized ORV riding or racing event, the organizer

of the event shall, within 30 days after the event, submit to the

department a report on a form developed by the department. The

report shall include all of the following, as applicable:

     (a) Whether any participant less than 16 years of age was

killed or suffered an injury resulting in transportation to a

hospital as a result of an ORV accident at the event.

     (b) The age of the child.

     (c) Whether the child had been issued an ORV safety

certificate under this part or a comparable ORV safety certificate

issued under the authority of another state or a province of

Canada.

     (d) The type of ORV operated.

     (e) A description of the accident and injury.

     (20) By December 31 of each year, the department shall submit

to the legislature a report that summarizes reports received under

subsection (19) during the preceding calendar year. In the report,

the department may recommend amendments to this part to improve the

safety of children less than 16 years of age participating in

organized ORV riding or racing events.

     (21) The requirements of this section are in addition to any

applicable requirements of section 81131(9).

     Sec. 81131. (1) A local unit of government may pass an

ordinance establishing access routes along streets and highways

under its jurisdiction, if those access routes do not involve state

or federal highways, and if they meet the requirements of the plan

developed pursuant to section 81127. If necessary, consent of a

state or federal land management agency shall be obtained for the

location of the route.

(1) (2) A municipality may pass an ordinance allowing a

permanently disabled person to operate an ORV in that municipality.

     (2) Subject to subsections (4) and (7), the county board of

commissioners of an eligible county may adopt an ordinance

authorizing the operation of ORVs on the maintained portion of 1 or

more roads located within the county. Not less than 45 days before

a public hearing on the ordinance, the county clerk shall send

notice of the public hearing, by certified mail, to the county road

commission and, if state forestland is located within the county,

to the department.

     (3) Subject to subsections (4) and (7), beginning 1 year after

the effective date of the amendatory act that added this

subsection, the township board of a township located in an eligible

county may adopt an ordinance authorizing the operation of ORVs on

the maintained portion of 1 or more roads located within the

township. Not less than 28 days before a public hearing on the

ordinance, the township clerk shall send notice of the public

hearing, by certified mail, to the county road commission and, if

state forestland is located within the township, to the department.

     (4) The board of county road commissioners may close a road to

the operation of ORVs under subsection (2) or (3) to protect the

environment or if the operation of ORVs under subsection (2) or (3)

House Bill No. 4323 as amended June 27, 2008

poses a particular and demonstrable threat to public safety. A

county road commission shall not under this subsection close more

than 30% of the linear miles of roads located within the county to

the operation of ORVs under subsection (2) or (3). The township

board of a township located in an eligible county may adopt an

ordinance to close a road to the operation of ORVs under subsection

(2).

     (5) Subject to subsection (7), the legislative body of a

municipality located in an eligible county may adopt an ordinance

authorizing the operation of ORVs on the maintained portion of 1 or

more streets within the municipality.

     (6) Subject to subsections (4) and (7), if a local unit of

government adopts an ordinance pursuant to subsection (2), (3), or

(5), a person may operate an ORV with the flow of traffic on the

far right of the maintained portion of the road or street covered

by the ordinance. A person shall not operate an ORV pursuant to

subsection (2), (3), or (5) at a speed greater than 25 miles per

hour or a lower posted ORV speed limit or in a manner that

interferes with traffic on the road or street. <<Unless the person

possesses a license as defined in section 25 of the Michigan vehicle code, 1949 PA 300, MCL 257.25, a person shall not operate an ORV pursuant to subsection (2), (3), or (5) if the ORV is registered as a motor vehicle under chapter II of the Michigan vehicle code, 1949 PA 300, MCL 257.201 to 257.259, and either is more than 60 inches wide or has 3 wheels.>> ORVs operated

pursuant to subsection (2), (3), or (5) shall travel single file,

except that an ORV may travel abreast of another ORV when it is

overtaking and passing, or being overtaken and passed by, another

ORV.

     (7) Subsections (2) to (6) and an ordinance adopted under

subsection (2), (3), or (5) do not apply beginning 5 years after

the effective date of the amendatory act that added this

subsection.

     (8) In addition to any applicable requirement of section

81133(c), a person shall not operate an ORV pursuant to this

section when visibility is substantially reduced due to weather

conditions without displaying a lighted headlight and lighted

taillight. Beginning January 1, 2010, a person shall not operate an

ORV pursuant to this section without displaying a lighted headlight

and lighted taillight.

     (9) A person under 18 years of age shall not operate an ORV

pursuant to this section unless the person is in possession of a

valid driver license or under the direct supervision of a parent or

guardian and the person has in his or her immediate possession an

ORV safety certificate issued pursuant to this part or a comparable

ORV safety certificate issued under the authority of another state

or a province of Canada. A person under 12 years of age shall not

operate an ORV pursuant to this section. The requirements of this

subsection are in addition to any applicable requirements of

section 81129.

(10) (3) A township that has authorized the operation of ORVs

on a road under subsection (3) does not have a duty to maintain the

road in a condition reasonably safe and convenient for the

operation of ORVs. A board of county road commissioners, a county

board of commissioners, and a local unit of government do or a

municipality does not have a duty to maintain a highway road or

street under their respective jurisdictions its jurisdiction in a

condition reasonably safe and convenient for the operation of ORVs,

except the following ORVs:

     (a) ORVs registered as motor vehicles as provided in the code.

     (b) ORVs permitted by an ordinance as provided in subsection

(2) (1).

(11) (4) Beginning October 19, 1993, a board of county road

commissioners, a county board of commissioners, and a county are,

and, beginning on April 25, 1995, a municipality is, immune from

tort liability for injuries or damages sustained by any person

arising in any way out of the operation or use of an ORV on

maintained or unmaintained highways roads, streets, shoulders, and

rights-of-way over which the board of county road commissioners,

the county board of commissioners, or the local unit of government

municipality has jurisdiction. The immunity provided by this

subsection does not apply to actions that constitute gross

negligence. Gross negligence is defined as As used in this

subsection, "gross negligence" means conduct so reckless as to

demonstrate a substantial lack of concern for whether an injury

results.

     (12) In a court action in this state, if competent evidence

demonstrates that a vehicle that is permitted to operate on a road

or street pursuant to the code was in a collision with an ORV

required to be operated on the far right of the maintained portion

of a road or street pursuant to an ordinance adopted under

subsection (2), (3), or (5), the operator of the ORV shall be

considered prima facie negligent.

     (13) A violation of an ordinance described in this section is

a municipal civil infraction. The ordinance may provide for a

maximum fine of not more than $500.00 for a violation of the

ordinance. In addition, the court shall order the defendant to pay

the cost of repairing any damage to the environment, a road or

street, or public property damaged as a result of the violation.

     (14) The treasurer of the local unit of government shall

deposit fines collected by that local unit of government under

section 8379 of the revised judicature act of 1961, 1961 PA 236,

MCL 600.8379, and subsection (13) and damages collected

under subsection (13) into a fund to be designated as the "ORV

fund". The legislative body of the local unit of government shall

appropriate revenue in the ORV fund as follows:

     (a) Fifty percent to the county sheriff or police department

responsible for law enforcement in the local unit of government for

ORV enforcement and training.

     (b) Fifty percent to the board of county road commissioners

or, in the case of a city or village, to the department responsible

for street maintenance in the city or village, for repairing damage

to roads or streets and the environment that may have been caused

by ORVs and for posting signs indicating ORV speed limits or

indicating whether roads or streets are open or closed to the

operation of ORVs under this section.

     (15) As used in this section:

     (a) "Eligible county" means Mason, Lake, Osceola, Clare,

Gladwin, Arenac, or Bay county or a county lying north thereof,

including all of the counties of the Upper Peninsula.

     (b) "Local unit of government" means a county, township, or

municipality.

     (c) "Municipality" means a city or village.

     (d) "Road" means a county primary road or county local road as

described in section 5 of 1951 PA 51, MCL 247.655.

     (e) "Street" means a city or village major street or city or

village local street as described in section 9 of 1951 PA 51, MCL

247.659.

     Sec. 81133. A person shall not operate an ORV:

     (a) At a rate of speed greater than is reasonable and proper,

or in a careless manner having due regard for conditions then

existing.

     (b) Unless the person and any passenger in or on the vehicle

is wearing on his or her head a crash helmet and protective eyewear

approved by the United States department of transportation. This

subdivision does not apply if the vehicle is equipped with a roof

that meets or exceeds standards for a crash helmet and the operator

and each passenger is wearing a properly adjusted and fastened

safety belt.

     (c) During the hours of 1/2 hour after sunset to 1/2 hour

before sunrise without displaying a lighted headlight and lighted

taillight. The requirements of this subdivision are in addition to

any applicable requirements of section 81131(8).

     (d) Unless equipped with a braking system that may be operated

by hand or foot, capable of producing deceleration at 14 feet per

second on level ground at a speed of 20 miles per hour; a brake

light, brighter than the taillight, visible when the brake is

activated to the rear of the vehicle when the vehicle is operated

during the hours of 1/2 hour after sunset and 1/2 hour before

sunrise; and a throttle so designed that when the pressure used to

advance the throttle is removed, the engine speed will immediately

and automatically return to idle.

     (e) In a state game area or state park or recreation area,

except on roads, trails, or areas designated for this purpose; on

state owned lands under the control of the department other than

game areas, state parks, or recreational areas where the operation

would be in violation of rules promulgated by the department; in a

forest nursery or planting area; on public lands posted or

reasonably identifiable as an area of forest reproduction, and when

growing stock may be damaged; in a dedicated natural area of the

department; or in any area in such a manner as to create an erosive

condition, or to injure, damage, or destroy trees or growing crops.

However, the department may permit an owner and guests of the owner

to use an ORV within the boundaries of a state forest in order to

access the owner's property.

     (f) On the frozen surface of public waters within 100 feet of

a person not in or upon a vehicle, or within 100 feet of a fishing

shanty or shelter or an area that is cleared of snow for skating

purposes, except at the minimum speed required to maintain

controlled forward movement of the vehicle, or as may be authorized

by permit in special events.

     (g) Unless the vehicle is equipped with a spark arrester type

United States forest service approved muffler, in good working

order and in constant operation. Exhaust noise emission shall not

exceed 86 Db(A) or 82 Db(A) on a vehicle manufactured after January

1, 1986, when the vehicle is under full throttle, traveling in

second gear, and measured 50 feet at right angles from the vehicle

path with a sound level meter which that meets the requirement of

ANSI S1.4 1983, using procedure and ancillary equipment therein

described; or 99 Db(A) or 94 Db(A) on a vehicle manufactured after

January 1, 1986, or that level comparable to the current sound

level as provided for by the United States environmental protection

agency when tested according to the provisions of the current SAE

J1287, June 86 test procedure for exhaust levels of stationary

motorcycles, using sound level meters and ancillary equipment

therein described. A vehicle subject to this part, manufactured or

assembled after December 31, 1972 and used, sold, or offered for

sale in this state, shall conform to the noise emission levels

established by the United States environmental protection agency

under the noise control act of 1972, Public Law 92-574, 86 Stat.

1234 42 USC 4901 to 4918.

     (h) Within 100 feet of a dwelling at a speed greater than the

minimum required to maintain controlled forward movement of the

vehicle, except on property owned or under the operator's control

or on which the operator is an invited guest, or on a roadway,

forest road, or forest trail maintained by or under the

jurisdiction of the department, or on an ORV access route as

authorized by local ordinance a road or street on which ORV use is

authorized pursuant to section 81131(2), (3), or (5).

     (i) In or upon the lands of another without the written

consent of the owner, the owner's agent, or a lessee, when required

by part 731. The operator of the vehicle is liable for damage to

private property, including, but not limited to, damage to trees,

shrubs, or growing crops, or injury to other living creatures, or

damage caused through vehicle operation in a manner so as to create

erosive or other ecological damage. to private property. The owner

of the private property may recover from the person responsible

nominal damages of not less than the amount of damage or injury.

Failure to post private property or fence or otherwise enclose in a

manner to exclude intruders or of the private property owner or

other authorized person to personally communicate against trespass

does not imply consent to ORV use.

     (j) In an area on which public hunting is permitted during the

regular November firearm deer season from 7 a.m. to 11 a.m. and

from 2 p.m. to 5 p.m., except during an emergency or for law

enforcement purposes, to go to and from a permanent residence or a

hunting camp otherwise inaccessible by a conventional wheeled

vehicle, to remove from public land a deer, elk, or bear from

public land which that has been taken under a valid license; or

except for the conduct of necessary work functions involving land

and timber survey, communication and transmission line patrol, and

timber harvest operations; or except on property owned or under

control of the operator or on which the operator is an invited

guest. A hunter removing game pursuant to this subdivision shall be

allowed to may leave the designated trail or forest road only to

retrieve the game and shall not exceed 5 miles per hour. A vehicle

registered under the code is exempt from this subdivision while

operating on a public highway or public or private road capable of

sustaining automobile traffic. A person holding a valid permit to

hunt from a standing vehicle issued pursuant to part 401, or a

person with disabilities using an ORV to access public lands for

purposes of hunting or fishing through use of a designated trail or

forest road, is exempt from this subdivision.

     (k) While transporting on the vehicle a bow unless unstrung or

encased, or a firearm unless unloaded and securely encased, or

equipped with and made inoperative by a manufactured keylocked

trigger housing mechanism.

     (l) On or across a cemetery or burial ground, or land used as

an airport.

     (m) Within 100 feet of a slide, ski, or skating area, unless

the vehicle is being used for the purpose of servicing the area or

is being operated pursuant to section 81131(2), (3), or (5).

     (n) On an operating or nonabandoned railroad or railroad

right-of-way, or public utility right-of-way, other than for the

purpose of crossing at a clearly established site intended for

vehicular traffic, except railroad, public utility, or law

enforcement personnel while in performance of their duties, and

except if the right-of-way is designated as established provided

for in section 81127.

     (o) In or upon the waters of any stream, river, bog, wetland,

swamp, marsh, or quagmire except over a bridge, culvert, or similar

structure.

     (p) To hunt, pursue, worry, kill, or attempt to hunt, pursue,

worry, or kill a bird or an animal, whether wild or domesticated.

     (q) In a manner so as to leave behind litter or other debris.

     (r) In a manner contrary to operating regulations on public

lands.

     (s) While transporting or possessing, in or on the vehicle,

alcoholic liquor in a container that is open or uncapped or upon

which the seal is broken, except under either of the following

circumstances:

     (i) The container is in a trunk or compartment separate from

the passenger compartment of the vehicle.

     (ii) If the vehicle does not have a trunk or compartment

separate from the passenger compartment, the container is encased

or enclosed.

     (t) While transporting any passenger in or upon an ORV unless

the manufacturing standards for the vehicle make provisions for

transporting passengers.

     (u) On adjacent private land, in an area zoned residential,

within 300 feet of a dwelling at a speed greater than the minimum

required to maintain controlled forward movement of the vehicle

except on a roadway, forest road, or forest trail maintained by or

under the jurisdiction of the department, or on an ORV access route

as authorized by local ordinance a road or street on which ORV use

is authorized pursuant to section 81131(2), (3), or (5).

     Sec. 81147. (1) Except as otherwise provided in this part, a

person who violates a provision of this part is guilty of a

misdemeanor , punishable by imprisonment for not more than 90 days

, or a fine of not less than $50.00 or more than $1,000.00, or

both, for each violation. of the part.

     (2) A person who violates section 81133(e) by operating an ORV

in such a manner as to create an erosive condition or who violates

section 81133(i) or (o) is guilty of a misdemeanor punishable by

imprisonment for not more than 90 days or a fine of not less than

$250.00 or more than $1,000.00, or both, for each violation.

(3) (2) A person who violates sections section 81105, 81107,

81115, 81116, 81121, 81130, and or 81133(b), (c), (d), (f), (g),

(h), (j), (l), and or (m) is responsible for a state civil

infraction and may be ordered to pay a civil fine of not more than

$500.00.

(4) (3) A person shall not remove, deface, or destroy a sign

or marker placed by the department indicating the boundaries of an

ORV trail or area or that marks a route.

(5) (4) In addition to the penalties otherwise provided under

this part, a court of competent jurisdiction may order a person to

restore, as nearly as possible, any land, water, stream bank,

streambed, or other natural or geographic formation damaged by the

violation of this part to the condition it was in before the

violation occurred.

(6) (5) The department or any other peace officer may impound

the ORV of a person who violates a provision commits a violation of

this part that is punishable as a misdemeanor or who causes damage

to the particular area in which the ORV was used in the commission

of the violation.

(7) (6) Upon conviction of a person for violation of a

provision of this part that is punishable as a misdemeanor or any

other provision of this part that results in damage to the

particular area in which the ORV was used described in subsection

(5), a court of competent jurisdiction may order an the ORV and any

personal property on the ORV seized as a result of the violation

returned to the owner or, upon recommendation of the local

prosecuting attorney, turned over to the department. If the An ORV

and or any other property is turned over to the department , they

under this subsection shall be disposed of in the manner provided

for condemnation of property in part 16. The proceeds realized by

the department under this subsection shall first be used to restore

areas damaged by ORV use, with the balance to be deposited in the

off-road vehicle account.

     Enacting section 1. This amendatory act does not take effect

unless House Bill No. 5559 of the 94th Legislature is enacted into

law.