HB-5227, As Passed House, January 16, 2018

SUBSTITUTE FOR

HOUSE BILL NO. 5227

A bill to regulate the distribution and planting of seed

potatoes; to prescribe the powers and duties of the department of

agriculture and rural development; and to provide remedies and

prescribe penalties.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 1. This act shall be known and may be cited as the "seed

potato act".

Sec. 2. As used in this act:

(a) "Advisory committee" means the seed potato advisory

committee created in section 6.

(b) "Certified seed" means a class of seed that meets the

requirements of 1959 PA 221, MCL 286.71 to 286.75, and the rules

promulgated under that act.

agency of this state or the authorized seed potato certifying

agency of another state, territory, or country.

(d) "Cultivar" means unique variety.

(e) "Department" means the department of agriculture and rural

development.

(f) "Director" means the director of the department.

(g) "Distribute" means to offer for sale, sell, barter,

deliver, supply, furnish, or otherwise provide seed potatoes.

(h) "Field year" means the number of years a particular seed

lot has been grown in the field after greenhouse propagation.

(i) "Fund" means the agriculture licensing and inspection fees

fund created in section 9 of the insect pest and plant disease act,

1931 PA 189, MCL 286.209.

(j) "Hundredweight" means a unit of weight equal to 100

pounds.

(k) "Person" means an individual, partnership, association,

corporation, governmental entity, or other legal entity.

(l) "Rule" means a rule promulgated pursuant to the

administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to

24.328.

(m) "Seed lot" means all the seed potatoes of the same variety

that are of a single class and specific seed source and are

harvested from a field or stored together in a specific storage

facility.

(n) "Seed potato" means the tuber that is used for the

reproduction of the potato.

(o) "State national harmonization program" means the state

House Bill No. 5227 as amended January 11, 2018

national harmonization program for seed potatoes developed by the

plant protection and quarantine program of the Animal and Plant

Health Inspection Service in the United States Department of

Agriculture.

Sec. 3. (1) Beginning January 1, 2021, a person who

distributes combined seed lots sufficient to plant 1 or more acres

in this state as determined by the director by rule must distribute

only certified seed[ potatoes, except that the person may distribute

uncertified seed potatoes to a grower that has been granted permission to plant uncertified seed potatoes under section 4(3)].

(2) All seed lots of seed potatoes [required to be

certified seed under] subsection (1)

must at the time of distribution, be accompanied by all of the

following documents:

(a) An official tag or bulk certificate indicating their

status as certified seed.

(b) A certificate of shipping point inspection.

certifying authority for seed potatoes imported from outside of

this state.

(d) Any other documentation necessary to provide the

information required by subsection (3).

(3) The documents described in subsection (2) must provide the

following:

(a) A description of the grade of the seed potatoes.

(b) The findings of field inspections and postharvest

inspections conducted on each seed lot of seed potatoes.

(d) Evidence that the seed potatoes were tagged and, if

imported from outside this state, packed and sealed under the

certification standards of the state, territory, or country in

which they were grown.

Sec. 4. (1) Beginning January 1, 2021, and except as otherwise

permitted under this section, seed potatoes in combined seed lots

that are sufficient to plant 1 or more acres as determined by the

director by rule may only be planted if the seed potatoes are

certified seed. Seed potatoes imported into this state must meet

the minimum standards in the state national harmonization program

and in any active applicable quarantine or rule.

(2) Beginning January 1, 2021, a potato grower may plant

uncertified potatoes if both of the following conditions are met:

(a) The potatoes were grown and stored as part of that

grower's farming operations.

(b) The uncertified potatoes are no more than 1 field year

from certified seed potatoes.

(3) Beginning January 1, 2021, in any year that there is an

insufficient volume of any cultivar of certified seed potatoes and

seed potatoes meeting the requirements of this section, potato

growers may apply to the advisory committee for permission to plant

uncertified seed potatoes. Upon recommendation from the advisory

committee, the director may grant applying growers permission to

plant uncertified seed potatoes for only that growing season.

Sec. 5. (1) Beginning January 1, 2021, each person growing

potatoes in this state in combined seed lots of 1 acre or greater

shall notify the director of this fact by January 1 of each year

and shall keep and maintain records as described in this section.

The records must contain the information required for an

independent records review conducted under subsection (2). Growers

shall maintain the records for a period of at least 2 years at the

grower's business address.

(2) Beginning January 1, 2021, the director shall select a

qualified department employee or independent auditor to perform a

records review on at least 10% of potato growers subject to this

act once every seed potato crop cycle. The director shall determine

a method for the annual random selection of growers.

(3) A records review performed under this section must verify

records that trace back the grower's potatoes, including records

that evidence both of the following:

(a) Acreage planted by cultivar.

(b) Hundredweight and source of the seed potatoes used to

plant the acreage, with verifiable documents related to the

following:

(i) For seed potatoes purchased, the documents described in

section 3.

(ii) For seed potatoes planted as provided under section 4,

the testing history and seed potatoes used to replant the grower's

own operations.

(4) If the independent auditor who conducted the records

review believes that a violation of this section has occurred, he

or she shall notify the director within 5 business days. The

director must then investigate the alleged violation according to

section 8.

Sec. 6. (1) The seed potato advisory committee is created.

(2) The advisory committee shall consist of 5 members

appointed by the director as follows:

(a) Two commercial potato growers who do not grow seed

potatoes.

(b) The current chair of the Michigan Seed Potato Association.

(d) One person employed by the department.

(3) Whenever possible, the advisory committee members

appointed under subsection (2)(c) and (d) must have knowledge of or

experience with seed potatoes.

(4) Except as provided in subsection (5), members appointed to

the advisory committee shall serve for terms of 3 years. Members

may be appointed for an unlimited number of terms, except that a

member appointed under subsection (2)(a) may not serve more than 2

terms consecutively.

(5) In the event of a vacancy on the advisory committee prior

to the completion of a member's full term, the director shall

appoint a person to complete the remainder of that term. The person

appointed under this subsection must represent the same group as

the member he or she is replacing, as provided in subsection (2).

(6) The members of the advisory committee will receive no

compensation or reimbursement for any expenses incurred in the

exercise of their duties.

(7) The advisory committee shall advise the director in

establishing rules under this act, assist in the determination of

availability of seed potatoes, recommend whether to grant

permission to plant uncertified seed potatoes, recommend

independent auditors to perform records reviews under section 5,

and consult with the director regarding the administration and

enforcement of this act.

Sec. 7. In addition to any other duties provided in this act,

the director shall do both of the following:

(a) Administer and enforce this act.

(b) Promulgate rules necessary for the administration and

enforcement of this act, including rules that do all of the

following:

(i) Establish requirements for compliance.

(ii) Allow for the random selection of 10% of potato growers

subject to the annual records review required under section 5(2).

(iii) Establish methods for determining whether there are

unacceptable levels of disease beyond the level of tolerance

established under 1959 PA 221, MCL 286.71 to 286.75, and the rules

promulgated under that act for seed potatoes planted under section

4(3).

(iv) Set a schedule of fees for services performed by the

department.

Sec. 8. (1) Beginning January 1, 2021, the director, upon the

director's own motion or upon the recommendation of an independent

auditor under section 5(2), may make an investigation necessary to

determine compliance with this act.

(2) For an inspection under subsection (1), the director must

have free and unimpeded access during regular business hours,

either upon consent of the owner or upon obtaining an

administrative search warrant, to inspect any records required to

be kept pursuant to this act.

(3) The director may make copies of any records inspected

under subsection (2).

(4) The director may do 1 or more of the following:

(a) Administer oaths.

(b) Take statements.

(d) Issue subpoenas for the production of any books,

memoranda, papers, or other documents, articles, or instruments.

(5) Upon failure or refusal of any person to obey a subpoena

issued under subsection (4), the director may petition the district

court to enter an order compelling that person to comply with the

subpoena.

(6) Failure to obey an order of the court entered under

subsection (5) may be punishable as contempt of court.

(7) A complaint made to the director and the results of the

director's investigations must be closed to public inspection

unless disclosed pursuant to court order, during the investigatory

period and until the complaint is dismissed or the notice of

hearing and charges are served.

Sec. 9. (1) Beginning January 1, 2021, and except as otherwise

provided in this section, the director may impose an administrative

fine on any person that violates this act or a rule promulgated

under this act. An administrative fine imposed under this section

may not exceed $2,500.00 per violation.

(2) Beginning January 1, 2021, a person who plants or

distributes potatoes in violation of this act or a rule promulgated

under this act is subject to an administrative fine, as determined

by the director. An administrative fine imposed by the director

under this subsection must be at least $20.00 per acre but may not

exceed $100.00 per acre per violation.

(3) Beginning January 1, 2021, a person who fails to maintain

complete and accurate records under section 5 or a rule promulgated

under this act regarding records or fees is subject to an

administrative fine, as determined by the director. An

administrative fine imposed by the director under this subsection

must be at least $500.00 but may not exceed $1,000.00.

(4) An administrative fine may not be imposed under this

section unless the person charged with the violation is given

notice and an opportunity for a hearing held under the

administrative procedures act of 1969, 1969 PA 306, MCL 24.201 to

24.328.

(5) If the director is unable to collect an administrative

fine or if any person fails to pay all or a set portion of an

administrative fine, the director may bring suit in any court of

competent jurisdiction to recover the fine plus costs and attorney

fees.

(6) Money collected from any administrative fine imposed under

this section must be paid to the state treasurer, who shall credit

the same to the fund.

Enacting section 1. This act takes effect 90 days after the

date it is enacted into law.