HB-4862, As Passed Senate, September 26, 2007

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 4862

     A bill to amend 1931 PA 189, entitled

"The insect pest and plant disease act,"

by amending the title and sections 6, 9, and 11 (MCL 286.206,

286.209, and 286.211), the title as amended by 2005 PA 53, section

6 as amended by 1995 PA 137, section 9 as amended by 2004 PA 273,

and section 11 as amended by 1984 PA 88.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

TITLE

     An act to regulate the sale and distribution of nursery stock,

plants, and plant products; to prevent the introduction into and

the dissemination within this state of insect pests and plant

diseases; to provide for the destruction and control of insect

pests and plant diseases; to provide for the destruction or

treatment of certain plants or plant products; to provide for

license the licensure and to provide for inspection of certain

persons and activities under certain circumstances; and imposing to

impose certain powers and duties on the director of agriculture; to

create certain restricted funds for certain department activities

and to allow allocation of those funds throughout the department;

to provide for the promulgation of rules; to prescribe penalties

and civil sanctions; and to provide remedies.

     Sec. 6. (1) The director shall cause to be inspected at least

once each year during the growing season all nurseries in the state

to ascertain whether they are infested with insect pests or

infected with plant diseases. The director shall cause to be

inspected all nursery stock which will be stored or offered for

sale or which is stored in cellars, heeling-in grounds, or

warehouses to ascertain whether it is infested with insect pests or

infected with plant diseases and assess an inspection fee.

     (2) If upon the inspection of any nursery stock it is

determined that the nursery stock or nursery and its premises are

apparently free from insect pests and plant diseases, and if the

necessary inspection fees have been paid, the director shall give

or send to the owner of each nursery or of the nursery stock or to

the person in charge of the nursery or nursery stock a certificate

executed by the director setting forth the fact of the inspection.

If any inspections are requested by any nursery after September 1,

the nursery or applicant shall pay, in addition to the inspection

fee, the expense of the inspector and mileage at the prevailing

rate per mile, as established by the state administrative board, in

going to and returning from the inspection, either from Lansing or

the location of the nearest inspector.

     (3) Certificates of inspection are valid from November 1 in 1

year to October 31 of the following year. Any nursery owner may

request a second inspection be performed, prior to offering for

sale or removing or shipping from a nursery or other premises,

provided that the nursery owner or applicant pays an inspection fee

based upon the actual cost to the department of agriculture of such

inspection.

     (4) A person shall not sell, or offer for sale, or remove or

ship from a nursery or other premises any nursery stock until the

nursery stock has been officially inspected and a certificate or

permit covering it has been granted by the director, except that

nursery stock may be shipped to the director without an inspection

and certification.

     (5) The director shall not grant a certificate of inspection

to private landowners who are about to sell or remove trees or

plants originally supplied from the state, or federal, or state and

federal nurseries or by any political subdivision or its agencies.

     (6) The director shall charge an inspection fee based upon the

cost to the department of agriculture of making the inspection.

     (7) The However, the director shall adjust the schedule of

fees for the costs of making the various inspections of nursery

stock, plants, and plant materials as required by this act. The

director shall review and adjust its schedule of fees for the

inspections at the end of each fiscal year. In any given fiscal

year, the director may raise initial inspection fees by no more

than 50%. The commission of agriculture shall approve all

adjustments to the initial fees before they are adopted.

     Sec. 9. (1) A person, firm, partnership, association, or

corporation growing or desiring to sell nursery stock in this state

shall, on or before October 31, 1982 and October 31 of each year,

apply to the director for a license. Until September 30, 2003 or

after September 30, 2007, the annual nursery license fee shall be

$50.00, and beginning October 1, 2003 through September 30, 2007,

After September 30, 2012, the annual nursery license fee shall be

$50.00. Until September 30, 2012, the annual nursery license fee

shall be $100.00. Until September 30, 2003 or after September 30,

2007, the annual license fee for plant growers or plant dealers

shall be $20.00, and beginning October 1, 2003 through September

30, 2007, After September 30, 2012, the annual license fee for

plant growers or plant dealers shall be $20.00. Until September 30,

2012, the annual license fee for plant growers or plant dealers

shall be $100.00. The annual license fee for nursery dealers shall

be $100.00. For Until September 30, 2012, and for persons growing

less than 1/4 acre of nursery stock or utilizing less than 200

square feet of greenhouse space, and only from October 1, 2003

through September 30, 2007, the fee for a license is $40.00.

License fees provided for in this act shall become due and payable

at the office of the director on or before October 31 of each year.

The fees imposed in this subsection are subject to subsection (7)

(8).

     (2) The agriculture licensing and inspection fees fund is

created within the state treasury. The state treasurer may receive

license and inspection fees and administrative and civil fines

received pursuant to this act and other acts, as provided for by

law, that are administered by the department of agriculture. The

fund may receive money or other assets from any source for deposit

into the fund. The state treasurer shall direct the investment of

the fund and shall credit to the fund interest earnings from fund

investments. Money in the fund at the close of the fiscal year

shall remain in the fund and shall not lapse to the general fund.

The department of agriculture shall expend money from the fund,

upon appropriation, for the purpose of administering and carrying

out those duties required by law under this act and other acts, as

provided by law, that are administered by the department. The

department of agriculture shall be the administrator of the fund

for auditing purposes.

(3) (2) Except as otherwise provided in Subject to subsection

(3) (4), license fees, inspection fees, and other noncriminal fees

collected under sections 6 and 9 and administrative fines imposed

under this act shall be paid into the general fund of the state and

shall be used in enforcement of this act. the agriculture licensing

and inspection fees fund created in subsection (2), to be used,

pursuant to appropriation, by the director in administering and

carrying out those duties required by law under this act and to

develop and improve training and outreach programs for the purpose

of safeguarding plants and plant products from unwanted plant

pests.

(4) (3) Beginning October 1, 2003, the horticulture fund is

created within the state treasury. The state treasurer may receive

money or other assets from any source for deposit into the fund.

From October 1, 2003 until September 30, 2007 2012, up to

$70,000.00 of the funds generated through licensing shall may be

deposited into the horticulture fund each year. The state treasurer

shall direct the investments of the horticulture fund. The state

treasurer shall credit interest and earnings from fund investments

to the fund. Assets in the fund at the close of the fiscal year

shall remain in the fund and shall not lapse to the general fund.

The director shall administer the fund and shall expend money from

the fund, upon appropriation, to provide for research projects, to

develop and improve training programs, and to develop outreach

materials for the purposes of safeguarding plants and plant

products from unwanted plant pests. The director shall administer

the fund with advice and consultation from a horticultural advisory

committee created in subsection (4) (5). After September 30, 2007

2012, the fund shall no longer exist and the money in the fund

shall revert to the general agriculture licensing and inspection

fees fund for use as described in subsection (2).

(5) (4) There is created a horticulture advisory committee.

Members of this committee, to be named by the director, shall

include representatives from the horticulture industry.

(6) (5) This section does not apply to persons engaged in

fruit growing who are not nurserymen but desire to sell or exchange

surplus small fruit plants of their own growing, or to farmers or

other persons who may sell or give away native shade trees, native

shrubs, native vines, native hardy perennials, or native evergreens

from their own premises.

(7) (6) Beginning the effective date of the amendatory act

that added this subsection July 23, 2004, the director shall issue

an initial or renewal license not later than 90 days after the

applicant files a completed application. Receipt of the application

is considered the date the application is received by any agency or

department of the state of Michigan. If the application is

considered incomplete by the director, the director shall notify

the applicant in writing, or make the information electronically

available, within 30 days after receipt of the incomplete

application, describing the deficiency and requesting the

additional information. The 90-day period is tolled upon

notification by the director of a deficiency until the date the

requested information is received by the director. The

determination of the completeness of an application does not

operate as an approval of the application for the license and does

not confer eligibility of an applicant determined otherwise

ineligible for issuance of a license. The director shall not

discriminate against an applicant in the processing of the

application based upon the fact that the license fee was refunded

or discounted under this subsection.

(8) (7) If the director fails to issue or deny a license

within the time required by this section, the director shall return

the license fee and shall reduce the license fee for the

applicant's next renewal application, if any, by 15%. The failure

to issue a license within the time required under this section does

not allow the department of agriculture to otherwise delay the

processing of the application, and that application, upon

completion, shall be placed in sequence with other completed

applications received at that same time.

(9) (8) Beginning October 1, 2005, the director shall submit a

report by December 1 of each year to the standing committees and

appropriations subcommittees of the senate and house of

representatives concerned with agricultural issues. The director

shall include all of the following information in the report

concerning the preceding fiscal year:

     (a) The number of initial and renewal applications the

department received and completed within the 90-day time period

described in subsection (6) (7).

     (b) The number of applications denied.

     (c) The number of applicants not issued a license within the

90-day time period and the amount of money returned to licensees

and registrants under subsection (7) (8).

(10) (9) As used in this section, "completed application"

means an application complete on its face and submitted with any

applicable licensing and inspection fees as well as any other

information, records, approval, security, or similar item required

by law or rule from a local unit of government, a federal agency,

or a private entity but not from another department or agency of

the state of Michigan.

     Sec. 11. (1) Each nonresident nurseryman, dealer, or grower,

who solicits or takes orders for or sells nursery stock in this

state through resident or nonresident agents, shall each year

obtain a license from the director, for which the fee shall be

$50.00 as prescribed in section 9. The director may waive the

license fee requirement if there is a reciprocal agreement with the

appropriate authority of the state in which the applicant's

principal place of business is located waiving the requirements for

Michigan nurserymen, plant growers, or dealers in that state. The

director may enter into reciprocal agreements with responsible

officers of other states under which nursery stock owned or handled

by nurserymen, plant growers, or dealers of those states may be

sold in this state without the payment of the license fee provided

for in this section.

     (2) The director may deny an out of state out-of-state

nurseryman or nursery stock dealer the right to ship nursery stock

into this state if the department of agriculture determines that

the nurseryman or nursery stock dealer violates has violated this

act or a rule promulgated under this act.