HB-4579, As Passed Senate, June 4, 2009

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 4579

     A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 41303, 41305, 41306, 41309, 41311, 41313, and

41323 (MCL 324.41303, 324.41305, 324.41306, 324.41309, 324.41311,

324.41313, and 324.41323), section 41303 as amended by 2005 PA 78,

section 41305 as amended and section 41306 as added by 2005 PA 79,

section 41309 as amended by 2005 PA 76, sections 41311 and 41313 as

added by 2005 PA 80, and section 41323 as added by 2005 PA 75, and

by adding section 41302.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

     Sec. 41302. (1) The commission of natural resources may by

order add to or delete from the list of prohibited species or

restricted species under section 41301 any species other than an

insect or plant species. Before issuing an order under this

subsection, the commission of natural resources shall consult with

the department of agriculture. After the consultation, and at least

30 days before the commission of natural resources issues the

order, the department of natural resources shall post a copy of the

proposed order on the department of natural resources' website and

shall submit a copy of the proposed order to all of the following:

     (a) The legislature.

     (b) The standing committees of the senate and house of

representatives with primary responsibility for any of the

following:

     (i) Agricultural issues.

     (ii) Environmental issues.

     (iii) Natural resources issues.

     (2) The commission of agriculture may by order add to or

delete from the list of prohibited species or restricted species

under section 41301 any insect or plant species. Before issuing an

order under this subsection, the commission of agriculture shall

consult with the department of natural resources. After the

consultation, and at least 30 days before the commission of

agriculture issues the order, the department of agriculture shall

post a copy of the proposed order on the department of

agriculture's website and shall submit a copy of the proposed order

to all of the following:

     (a) The legislature.

     (b) The standing committees of the senate and house of

representatives with primary responsibility for any of the

following:

     (i) Agricultural issues.

     (ii) Environmental issues.

     (iii) Natural resources issues.

     (3) The commission of natural resources or the commission of

agriculture, as applicable, shall list a species as a prohibited

species or restricted species if the commission of natural

resources or commission of agriculture, respectively, determines

the following:

     (a) For a prohibited species, all of the following

requirements are met:

     (i) The organism is not native to this state.

     (ii) The organism is not naturalized in this state or, if

naturalized, is not widely distributed in this state.

     (iii) One or more of the following apply:

     (A) The organism has the potential to harm human health or to

severely harm natural, agricultural, or silvicultural resources.

     (B) Effective management or control techniques for the

organism are not available.

     (b) For a restricted species, all of the following

requirements are met:

     (i) The organism is not native to this state.

     (ii) The organism is naturalized and widely distributed in this

state.

     (iii) One or more of the following apply:

     (A) The organism has the potential to harm human health or to

harm natural, agricultural, or silvicultural resources.

     (B) Effective management or control techniques for the

organism are available.

     Sec. 41303. (1) Subject to subsection (2), a person shall not

knowingly possess a live organism if the organism is a prohibited

species or restricted species, except under 1 or more of the

following circumstances:

     (a) The person intends to present a specimen of the prohibited

species or restricted species, for identification or similar

purposes, to a person who is a certified applicator or registered

applicator under part 83, to a public or private institution of

higher education, or to the department of natural resources, the

department of agriculture, or any other state, local, or federal

agency with responsibility for the environment, or natural

resources, or agriculture.

     (b) The person has been presented with a specimen of a

prohibited species or restricted species for identification or

similar purposes under subdivision (a).

     (c) The person possesses the prohibited species or restricted

species in conjunction with otherwise lawful activity to eradicate

or control the prohibited species or restricted species.

     (d) If the prohibited species or restricted species is not an

insect or plant species, the possession is pursuant to a permit

issued for education or research purposes by the department of

natural resources under section 41306. If the prohibited species or

restricted species is an insect or plant species, the possession is

pursuant to a permit issued for education or research purposes by

the department of agriculture under section 41306 or by the United

States department of agriculture.

     (2) A person described in subsection (1)(b) or (c) shall

notify the department of natural resources, the department of

agriculture, or the department of environmental quality if the

prohibited species or restricted species was found at a location

where it was not previously known to be present.

     Sec. 41305. A person shall not introduce a prohibited species,

a restricted species, or a genetically engineered or nonnative fish

or aquatic plant, bird, crustacean, fish, mammal, or mollusk unless

the introduction is authorized by 1 of the following, as

applicable:

     (a) For a fish, by a permit issued by the department of

natural resources under section 48735.

     (b) For a prohibited species or restricted species that is an

insect or plant, by a permit issued by the department of

agriculture under section 41306.

     (c) For an aquatic plant, any other species, by a permit

issued by the department of natural resources under section 41306.

     Sec. 41306. (1) A person shall apply for a permit that section

41303 or 41305 describes as being issued by the department of

natural resources or the department of agriculture under this

section on a form developed by the department of natural resources

or the department of agriculture, respectively. The application

shall be accompanied by a fee based on the cost of administering

this part. The department of natural resources or the department of

agriculture, respectively, shall either grant an administratively

complete application and issue a permit or deny the application.

     (2) In determining whether to grant or deny an application for

a permit for introduction of a genetically engineered organism

required by section 41305, the department of natural resources or

the department of agriculture, as applicable, shall consider

whether any application for a federal permit or approval for the

genetically engineered organism has been granted or denied.

(3) (2) The department of natural resources or the department

of agriculture may revoke or modify a permit issued by the

department of natural resources or the department of agriculture,

respectively, under subsection (1) after providing an opportunity

for a hearing under the administrative procedures act of 1969, 1969

PA 306, MCL 24.201 to 24.328.

     (4) The department of natural resources shall administer and

enforce this part, except with respect to insect and plant species.

The department of agriculture shall administer and enforce this

part with respect to insect or plant species. In addition, any

peace officer may enforce the criminal provisions of this part.

     Sec. 41309. (1) A person who violates section 41303(2) is

subject to a civil fine of not more than $100.00.

     (2) A person who violates section 41303(1), or a condition of

a permit issued under this part, with respect to a restricted

species is subject to a civil fine of not more than $5,000.00. A

person who violates section 41303(1), or a condition of a permit

issued under this part, with respect to a prohibited species is

subject to a civil fine of not more than $10,000.00.

     (3) A person who violates section 41303(1) knowing the

possession is unlawful or who willfully or in a grossly negligent

manner violates a condition of a permit issued under this part is

guilty as follows:

     (a) For a violation involving a restricted species, the person

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.

     (b) For a violation involving a prohibited species, the person

is guilty of a felony and may be imprisoned for not more than 2

years and shall be fined not less than $2,000.00 or more than

$20,000.00.

     (4) A person who, with intent to damage natural, agricultural,

or silvicultural resources or human health:

     (a) Violates section 41303(1) with respect to a restricted

species or possesses a nonnative fish or aquatic plant, bird,

crustacean, fish, insect, mammal, or mollusk is guilty of a felony

and may be imprisoned for not more than 2 years and shall be fined

not less than $1,000.00 or more than $250,000.00.

     (b) Violates section 41303(1) with respect to a prohibited

species or possesses a genetically engineered fish or aquatic

plant, bird, crustacean, fish, insect, mammal, or mollusk is guilty

of a felony and may be imprisoned for not more than 4 years and

shall be fined not less than $2,000.00 or more than $500,000.00.

     (5) A person who sells or offers to sell a restricted species

is subject to a civil fine of not less than $1,000.00 or more than

$10,000.00. A person who sells or offers to sell a prohibited

species is subject to a civil fine of not less than $2,000.00 or

more than $20,000.00.

     (6) A person who violates section 41305 is guilty as follows:

     (a) For a violation involving a restricted species or a

nonnative fish or aquatic plant, bird, crustacean, fish, insect,

mammal, or mollusk, the person is guilty of a misdemeanor and may

be imprisoned for not more than 6 months and shall be fined not

less than $500.00 or more than $5,000.00.

     (b) For a violation involving a prohibited species or a

genetically engineered fish or aquatic plant, bird, crustacean,

fish, insect, mammal, or mollusk, the person 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.

     (7) A person who violates section 41305 with respect to a

restricted species or nonnative fish or aquatic plant, bird,

crustacean, fish, insect, mammal, or mollusk and who knows or

should know the identity of the restricted species or that the

organism, whether a restricted species or other fish or aquatic

plant, bird, crustacean, fish, insect, mammal, or mollusk, is

nonnative 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.

     (8) A person who violates section 41305 with respect to a

prohibited species or a genetically engineered fish or aquatic

plant, bird, crustacean, fish, insect, mammal, or mollusk and who

knows or should know the identity of the prohibited species or that

the fish or aquatic plant, bird, crustacean, fish, insect, mammal,

or mollusk is genetically engineered, respectively, is guilty of a

felony and may be imprisoned for not more than 2 years and shall be

fined not less than $2,000.00 or more than $20,000.00.

     (9) A person who violates section 41305 knowing the

introduction is unlawful, is guilty as follows:

     (a) For a violation involving a restricted species or

nonnative fish or aquatic plant, bird, crustacean, fish, insect,

mammal, or mollusk, the person is guilty of a felony and may be

imprisoned for not more than 2 years and shall be fined not less

than $1,000.00 or more than $250,000.00.

     (b) For a violation involving a prohibited species or a

genetically engineered fish or aquatic plant, bird, crustacean,

fish, insect, mammal, or mollusk, the person is guilty of a felony

and may be imprisoned for not more than 4 years and shall be fined

not less than $2,000.00 or more than $500,000.00.

     (10) A person who, with intent to damage natural,

agricultural, or silvicultural resources or human health, violates

section 41305 is guilty as follows:

     (a) For a violation involving a restricted species or

nonnative fish or aquatic plant, bird, crustacean, fish, insect,

mammal, or mollusk, the person is guilty of a felony and may be

imprisoned for not more than 3 years and shall be fined not less

than $1,000.00 or more than $500,000.00.

     (b) For a violation involving a prohibited species or a

genetically engineered fish or aquatic plant, bird, crustacean,

fish, insect, mammal, or mollusk, the person is guilty of a felony

and may be imprisoned for not more than 5 years and shall be fined

not less than $2,000.00 or more than $1,000,000.00.

     (11) Subsections (3), (4), and (9) do not apply before

November 1, 2005 to violations involving species other than fish.

Subsections (6), (7), (8), and (10) do not apply before November 1,

2005.

(11) (12) In addition to any other civil or criminal sanction

imposed under this section, a person who violates this part is

liable for any damages to natural resources resulting from the

violation, including, but not limited to, costs incurred to prevent

or minimize such damages.

(12) (13) This part does not apply to activities authorized

under the Michigan aquaculture development act, 1996 PA 199, MCL

286.871 to 286.884.

     Sec. 41311. (1) The invasive species fund is created within

the state treasury.

     (2) The department of natural resources and the department of

agriculture shall forward to the state treasurer and the state

treasurer shall deposit into the fund civil fines collected under

section 41309 and permit fees collected under this part section

41306. The state treasurer may receive money or other assets from

any source for deposit into the fund. The state treasurer shall

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

to the fund interest and earnings from fund investments.

     (3) Money in the fund at the close of the fiscal year shall

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

     (4) The department of natural resources and the department of

agriculture shall expend money from the fund, upon appropriation,

only for 1 or more of the following purposes:

     (a) The administration of this part, consistent with section

41306(4).

     (b) Public education about preventing the introduction of,

controlling, or eradicating prohibited species, restricted species,

and other nonnative species and genetically engineered fish,

insects, and aquatic plants, birds, crustaceans, fish, insects,

mammals, and mollusks.

     Sec. 41313. The department of natural resources and the

department of agriculture shall post on its website each provide

all of the following information on its website:

     (a) Information on the requirements of this part applicable to

the public.

     (b) The penalties for violating the requirements of this part.

     (c) A list of prohibited species and restricted species along

with a description and a photograph or drawing of each of those

species.

     (d) Each annual report of the council department under section

41323, for not less than 3 years after its issuance.

     Sec. 41323. (1) The council department of natural resources

shall do all of the following:

     (a) Within 6 months after the effective date of the amendatory

act that added this section By March 1 of each year, submit to the

governor and the legislature a report that makes recommendations on

additions all of the following:

     (i) Additions to or deletions from the list of prohibited

species and restricted species classes of genetically engineered or

nonnative organisms covered by this part.

     (b) By March 1 of each year, beginning in 2006, submit to the

governor and the legislature a report that makes recommendations on

all of the following:

     (i) The adoption of lists for classes of prohibited and

restricted organisms other than fish, insects, and aquatic plants.

     (ii) The status of various prohibited species and other

problematic invasive organisms species in this state, including,

but not limited to, a list of infested waterbodies by species.

     (iii) Preventing the introduction of and controlling or

eradicating invasive species or genetically engineered fish,

insects, and aquatic plants, birds, crustaceans, fish, insects,

mammals, or mollusks.

     (iv) Restoration or remediation of habitats or species damaged

by invasive species or genetically engineered organisms.

     (v) Prioritizing efforts to prevent violations of and

otherwise further the purposes of this part.

     (vi) The specific areas of responsibility for various state

departments under this part and the sharing of information on

permits under this part among responsible state departments.

     (vii) Educating citizens about their responsibilities under

this part and their role in preventing the introduction of and

controlling or eradicating prohibited species, restricted species,

and invasive or species, and genetically engineered fish, insects,

or aquatic plants, birds, crustaceans, fish, insects, mammals, or

mollusks.

     (viii) Simplifying citizen access to state government for

compliance with this part.

     (ix) Legislation and funding to carry out the council's

recommendations of the department of natural resources and

otherwise further the purposes of this part.

     (x) Other matters that the council department of natural

resources considers pertinent to the purposes of this part.

(b) (c) Establish criteria for identifying waterbodies

infested by prohibited species.

(c) (d) Monitor and promote efforts to rescind the exemption

under 40 CFR 122.3(a) for ballast water discharges.

     (2) The council department of natural resources shall carry

out its reporting and other duties under this section in

cooperation with the aquatic nuisance species council created under

Executive Order No. 2002-21 and the department of agriculture.

     (3) This section is repealed effective 5 years after the

effective date of the amendatory act that added this section.

     Enacting section 1. This amendatory act takes effect 90 days

after the date it is enacted into law.

     Enacting section 2. This amendatory act does not take effect

unless Senate Bill No. 280 of the 95th Legislature is enacted into

law.