SB-0068, As Passed Senate, November 5, 2013

SUBSTITUTE FOR

SENATE BILL NO. 68

A bill to amend 1994 PA 451, entitled

"Natural resources and environmental protection act,"

by amending sections 81101, 81129, and 81133 (MCL 324.81101,

324.81129, and 324.81133), as amended by 2013 PA 119.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

Sec. 81101. As used in this part:

(a) "ATV" means a vehicle with 3 or more wheels that is

designed for off-road use, has low-pressure tires, has a seat

designed to be straddled by the rider, and is powered by a 50cc to

1,000cc gasoline engine or an engine of comparable size using other

fuels.

(b) "Code" means the Michigan vehicle code, 1949 PA 300, MCL

257.1 to 257.923.

road as described in section 5 of 1951 PA 51, MCL 247.655, or a

segment thereof.

(d) "Dealer" means a person engaged in the sale, lease, or

rental of an ORV as a regular business or, for purposes of selling

licenses under section 81116, any other person authorized by the

department to sell licenses or permits, or both, under this act.

(e) "Designated", unless the context implies otherwise, means

posted by the department, with appropriate signs, as open for ORV

use.

(f) "Farm vehicle" means either of the following:

(i) An implement of husbandry as defined in section 21 of the

Michigan vehicle code, 1949 PA 300, MCL 257.21.

(ii) A vehicle used in connection with a farm operation as

defined in section 2 of the Michigan right to farm act, 1981 PA 93,

MCL 286.472.

(g) "Forest road" means a hard surfaced road, gravel or dirt

road, or other route capable of travel by a 2-wheel drive, 4-wheel

conventional vehicle designed for road use. Forest road does not

include a street, county road, or highway.

(h) "Forest trail" means a designated path or way ~~capable of~~

~~travel only by a vehicle less than 50 inches in width.~~that is not a

route.

(i) "Highway" means a state trunk line highway or a segment of

a state trunk line highway.

(j) "Highly restricted personal information" means an

individual's photograph or image, social security number, digitized

signature, and medical and disability information.

(k) "Late model ORV" means an ORV manufactured in the current

model year or the 5 model years immediately preceding the current

model year.

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

municipality.

(m) "Maintained portion" means the roadway and any shoulder of

a street, county road, or highway.

(n) "Manufacturer" means a person, partnership, corporation,

or association engaged in the production and manufacture of ORVs as

a regular business.

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

(p) "Off-road vehicle account" means the off-road vehicle

account of the Michigan conservation and recreation legacy fund

established in section 2015.

(q) "Operate" means to ride in or on, and be in actual

physical control of, the operation of an ORV.

(r) "Operator" means an individual who operates or is in

actual physical control of the operation of an ORV.

(s) "ORV" or, unless the context implies a different meaning,

"vehicle" means a motor-driven off-road recreation vehicle capable

of cross-country travel without benefit of a road or trail, on or

immediately over land, snow, ice, marsh, swampland, or other

natural terrain. A multitrack or multiwheel drive vehicle, a

motorcycle or related 2-wheel vehicle, a vehicle with 3 or more

wheels, an amphibious machine, a ground effect air cushion vehicle,

or other means of transportation may be an ORV. An ATV is an ORV.

ORV or vehicle does not include a registered snowmobile, a farm

vehicle being used for farming, a vehicle used for military, fire,

emergency, or law enforcement purposes, a vehicle owned and

operated by a utility company or an oil or gas company when

performing maintenance on its facilities or on property over which

it has an easement, a construction or logging vehicle used in

performance of its common function, or a registered aircraft.

(t) "ORV safety certificate" means an ORV safety certificate

issued under section 81130 or, except as used in section 81130, a

comparable safety certificate issued under the authority of another

state or province of Canada.

(u) ~~(t)~~ "Owner" means any of the following:

(i) A vendee or lessee of an ORV that is the subject of an

agreement for the conditional sale or lease of the ORV, with the

right of purchase upon performance of the conditions stated in the

agreement, and with an immediate right of possession vested in the

conditional vendee or lessee.

(ii) A person renting an ORV, or having the exclusive use of an

ORV, for more than 30 days.

(iii) A person who holds legal ownership of an ORV.

(v) ~~(u)~~ "Person with a disability" means an individual who has

1 or more of the following physical characteristics:

(i) Blindness.

(ii) Inability, during some time of the year, to ambulate more

than 200 feet without having to stop and rest.

(iii) Loss of use of 1 or both legs or feet.

(iv) Inability to ambulate without the prolonged use of a

wheelchair, walker, crutches, braces, or other device required to

aid mobility.

(v) A lung disease from which the individual's expiratory

volume for 1 second, when measured by spirometry, is less than 1

liter, or from which the individual's arterial oxygen tension is

less than 60 mm/hg of room air at rest.

(vi) A cardiovascular disease that causes the individual to

measure between 3 and 4 on the New York heart classification scale,

or that results in a marked limitation of physical activity by

causing fatigue, palpitation, dyspnea, or anginal pain.

(vii) Other diagnosed disease or disorder including, but not

limited to, severe arthritis or a neurological or orthopedic

impairment that creates a severe mobility limitation.

(w) ~~(v)~~ "Personal information" means information that

identifies an individual, including an individual's driver

identification number, name, address not including zip code, and

telephone number, but does not include information on ORV operation

or equipment-related violations or civil infractions, operator or

vehicle registration status, accidents, or other ~~behaviorally-~~

~~related~~ behaviorally related information.

(x) ~~(w)~~ "Public agency" means the department or a local or

federal unit of government.

(y) ~~(x)~~ "Roadway" means the portion of a street, county road,

or highway improved, designed, or ordinarily used for travel by

vehicles registered under the code. Roadway does not include the

shoulder.

(z) ~~(y)~~ "Route" means a forest road or other road that is

designated for purposes of this part by the department.

(aa) ~~(z)~~ "Safety chief instructor" means an individual who has

been certified by a nationally recognized ORV organization to

certify instructors and to do on-sight evaluations of instructors.

(bb) ~~(aa)~~ "Shoulder" means that portion of a street, county

road, or highway contiguous to the roadway and generally extending

the contour of the roadway, not designed for vehicular travel but

maintained for the temporary accommodation of disabled or stopped

motor vehicles otherwise permitted on the roadway.

(cc) ~~(bb)~~ "Southern county" means Muskegon, Kent, Ionia,

Clinton, Shiawassee, Genesee, Lapeer, or Macomb county, or a county

lying south of the territory constituted by these counties.

(dd) ~~(cc)~~ "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, or a segment thereof.

(ee) ~~(dd)~~ "Traffic lane" means a clearly marked lane on a

roadway.

(ff) ~~(ee)~~ "Unmaintained portion" means the portion of a

street, county road, or highway that is not the maintained portion.

(gg) ~~(ff)~~ "Visual supervision" means the direct observation of

the operator with the unaided or normally corrected eye, where the

observer is able to come to the immediate aid of the operator.

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

safety certificate 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 (17), 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,~~ an ATV with 4 or more wheels 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), and (17), 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 an ORV safety certificate 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 (17), the owner or person in charge

of ~~a 4-wheeled ATV~~ an ATV with 4 or more wheels 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~~ an

individual who is incompetent to operate the vehicle because of

mental or physical disability.

(8) The department shall implement a comprehensive program for

the training of ORV operators and the preparation and dissemination

of ORV 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 and may include separate instruction for each

type of ORV.

(9) In implementing a program 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 individual to provide course instruction and to award ORV

safety certificates.

(11) The department may promulgate rules to implement

subsections (8) to (10) and (17).

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

is less than 16 years of age shall not operate an ORV unless the

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

child has an ORV safety certificate 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 (17), a child who is less than 12

years of age shall not operate ~~a 4-wheeled ATV,~~ an ATV with 4 or

more wheels 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 (17), when operating an ORV, 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 street,

county road, or highway. An operator who is not less than 12 years

of age but less than 16 years of age may cross a street, county

road, or highway or operate an ORV pursuant to section 81131(9) if

the operator has ~~a valid~~ an 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 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~~ an ATV

with 4 or more wheels 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.

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~~ participants if

another ~~ORV rider~~ participant 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.

(18) 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 information, 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.

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.

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

to the legislature a report that summarizes reports received under

subsection (18) 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.

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

applicable requirements of section 81131(13).

Sec. 81133. (1) An individual 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 individual 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 to either of the following:

(i) The operator of or a passenger in a vehicle that is

equipped with a roof that meets or exceeds standards for a crash

helmet if the operator and each passenger is wearing a properly

adjusted and fastened safety belt.

(ii) The operator of or a passenger in an ORV that is operated

on a state licensed game bird hunting preserve at a speed of not

greater than 10 miles per 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(12).

(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 from behind the vehicle

when the brake is activated, if 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

other state-owned lands under the control of the department 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

an individual 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 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, 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 under any of the following circumstances:

(i) On property owned by or under the operator's control or on

which the operator is an invited guest.

(ii) On a forest road or forest trail if the forest road or

forest trail is maintained by or under the jurisdiction of the

department.

(iii) On a street, county road, or highway on which ORV use is

authorized pursuant to section 81131(2), (3), (5), or (6).

(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 caused by operation of the vehicle, including, but

not limited to, damage to trees, shrubs, or growing crops, injury

to other living creatures, or erosive or other ecological damage.

The owner of the private property may recover from the individual

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

has been taken under a valid license; except to conduct necessary

work functions involving land and timber survey, communication and

transmission line patrol, or 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 under this

subdivision 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 private road capable of sustaining automobile

traffic or a street, county road, or highway. A person holding a

valid permit to hunt from a standing vehicle issued under part 401,

or a person with a disability 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. An

individual holding a valid permit to hunt from a standing vehicle

issued under part 401, or a person with a disability using an ORV

to access public lands for purposes of hunting or fishing, may

display a flag, the color of which the department shall determine,

to identify himself or herself as a person with a disability or an

individual holding a permit to hunt from a standing vehicle under

part 401.

(k) Except as otherwise provided in section 40111(3) or (4),

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), (5), or (6).

(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 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 an animal, whether wild or domesticated.

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

(r) On public land, in a manner contrary to operating

regulations.

(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 under any of the following circumstances:

(i) On a forest road or forest trail if the forest road or

forest trail is maintained by or under the jurisdiction of the

department.

(ii) On a street, county road, or highway on which ORV use is

authorized under section 81131(2), (3), (5), or (6).

(v) On a forest trail if the ORV is greater than 50 inches in

width.

(2) Each person who participates in the sport of ORV riding

accepts the risks associated with that sport insofar as the dangers

are inherent. Those risks include, but are not limited to, injuries

to persons or property that can result from variations in terrain;

defects in traffic lanes; surface or subsurface snow or ice

conditions; bare spots; rocks, trees, and other forms of natural

growth or debris; and collisions with fill material, decks,

bridges, signs, fences, trail maintenance equipment, or other ORVs.

Those risks do not include injuries to persons or property that

result from the use of an ORV by another person in a careless or

negligent manner likely to endanger person or property. When an ORV

is operated in the vicinity of a railroad right-of-way, each person

who participates in the sport of ORV riding additionally assumes

risks including, but not limited to, entanglement with railroad

tracks, switches, and ties and collisions with trains and train-

related equipment and facilities.