HB-6181, As Passed House, June 11, 2008

SUBSTITUTE FOR

HOUSE BILL NO. 6181

A bill to regulate the purchase and sale of certain nonferrous

metals; to provide for certain disclosures by certain persons

regarding certain transactions; to require the creation of certain

records for certain purposes and for the use of certain databases

by certain persons; and to provide for penalties and remedies.

THE PEOPLE OF THE STATE OF MICHIGAN ENACT:

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

"nonferrous metal regulatory act".

Sec. 3. As used in this act:

(a) "Dealer" means any person who purchases nonferrous metals

from any seller. Dealer includes, but is not limited to, a person,

whether or not licensed under state law or local ordinance, that

operates a business as a scrap metal recycler, scrap processor,

House Bill No. 6181 (H-2) as amended June 11, 2008

secondhand and junk dealer, or other person who purchases any

amount of nonferrous metal on a regular, sporadic, or 1-time basis.

(b) "Ferrous metal" means a metal that contains significant

quantities of iron or steel.

operating from a fixed location, that is a seller of ferrous or

nonferrous metal to a scrap metal recycler pursuant to a written

agreement.

(d) "Nonferrous metal" means a metal that does not contain

significant quantities of ferrous metal but contains copper, brass,

aluminum, bronze, lead, zinc, nickel, platinum, or alloys of those

metals.

(e) "Person" means an individual, partnership, corporation,

limited liability company, joint venture, trust, association, or

other legal entity.

(f) "Record" means a paper, electronic, or other generally

accepted method of storing information in a retrievable form.

(g) "Scrap metal recycler" means a person that purchases [

] nonferrous metal, whether regarded as a scrap

processor, core buyer, or other similar business operation.

(h) "Scrap processor" means that term as defined in section 3

of 1917 PA 350, MCL 445.403.

(i) "Seller" means any individual or person that either

regularly, sporadically, or on a 1-time basis receives

consideration from any other person from the purchase by a dealer

of nonferrous metal offered by that seller.

Sec. 5. (1) A dealer shall do all of the following:

(a) Produce and maintain records as required under section

7(2).

(b) Participate in a database meeting the requirements of

section 11.

section 9.

(d) Pay a seller by check, electronic transfer or ATM card, or

other method capable of being traced from the dealer to the seller.

Payment by cash or currency, barter, or trade is not considered a

payment that complies with the requirement of this subdivision.

(2) A seller shall do all of the following:

(a) Present to the dealer an operator's or chauffeur's

license, military identification card, Michigan identification

card, passport, or other government-issued identification

containing a photograph and allow the dealer to make a photocopy or

electronic copy of the identification.

(b) Allow the dealer to make a thumbprint, to be used only for

identification purposes by the dealer and for investigation

purposes by a law enforcement agency.

the owner of, or is otherwise authorized to sell, the nonferrous

metal offered for purchase to the dealer.

(d) Attest to the lack of any criminal convictions involving

the theft, conversion, or sale of nonferrous metals.

Sec. 7. (1) Except as otherwise provided in this subsection, a

dealer shall produce and maintain an accurate and legible record of

each purchase transaction. The dealer shall maintain the records

produced under this section for at least 1 year, shall keep the

records in a location that is readily accessible to a local, state,

or federal law enforcement agency for inspection during normal

business hours, and shall make the records, or copies of those

records, available to any local, state, or federal law enforcement

agency upon reasonable suspicion of violation of this act.

(2) The record of a purchase transaction regarding nonferrous

metal shall contain all of the following:

(a) The name, address, and identifying number from the

seller's operator's or chauffeur's license, military identification

card, Michigan identification card, passport, or other government-

issued identification containing a photograph. A legible scan or

photocopy of the identification is considered satisfactory in

fulfilling the requirement of this subdivision. In the case of a

repeat seller, a copy of the information may be kept on file with

the dealer and be used for future transactions.

(b) The license plate number of the vehicle delivering the

nonferrous metal.

(d) A description of the predominant types of metal purchases,

made in accordance with the custom of the trade.

(e) The weight, quantity, or volume of metal, made in

accordance with the custom of the trade.

(f) The consideration paid and the method of payment.

(g) A signed statement from the seller that the seller is the

owner of the metal or is otherwise authorized to sell the metal

subject to the transaction.

House Bill No. 6181 (H-2) as amended June 11, 2008

(h) A thumbprint of the seller.

(3) In the case of a seller that is an industrial or

commercial account where payment is made by check or electronic

transfer made payable directly to the business, the dealer is not

required to produce the record described in subsection (2) so long

as the personal and business identifying information of the

industrial or commercial account seller is on file with the dealer

and conforms to a written description of the type of nonferrous

metal or articles customarily purchased by the dealer from that

seller, and the information is reviewed at least every 2 years and

validated as current or updated by the dealer.

Sec. 9. (1) A dealer shall tag and hold, for [ ] 7

calendar days, any article containing nonferrous metal purchased

from a seller and that is offered for purchase under any of the

following circumstances:

(a) The article has altered or obliterated serial numbers, and

the person delivering the article does not have a written receipt

or other documentation that indicates where the person obtained the

article.

(b) Where, due to the identification on the article or due to

the type of article, the dealer would reasonably be considered to

have knowledge that the article is, or was, the property of a

governmental entity, and the person delivering the article does not

have a written receipt or other documentation that indicates where

the person obtained the article.

dealer would reasonably be considered to have knowledge that the

article is, or was, the property of a business, and the person

delivering the article does not have a written receipt or other

documentation that indicates where the person obtained the article.

(d) The article is a commemorative, decorative, or other

cemetery-related or apparently ceremonial article, and the person

delivering the article does not have a written receipt of other

documentation that indicates where the person obtained the article.

(e) The article is subject to a theft alert report or bulletin

received by the dealer from any law enforcement agency.

(f) Where the article is copper wiring, whether burned or with

sheathing, and the person delivering the article does not have a

written receipt or other documentation that indicates where the

person obtained the article.

(2) Any article containing nonferrous metal that does not

conform to the circumstances described in subsection (1) is not

subject to the tag and hold requirement of that subsection.

(3) Except in the case where the seller has specific written

documentation that the seller is the owner, agent, or person with

authority to possess and sell certain articles, a seller shall not

sell or offer for sale, and a dealer shall not purchase, any

article containing nonferrous metal that is marked with any form of

the name, initials, markings, or logo of a governmental entity,

utility, cemetery, or railroad; any beer kegs; or any public

fixtures. Any sale is subject to the provisions of this act.

(4) As used in this section, "public fixtures" means articles

containing nonferrous metal that are used or located in areas open

to the public and include, but are not limited to, utility access

House Bill No. 6181 (H-2) as amended June 11, 2008

covers; street light poles and fixtures; road and bridge guard

rails; highway or street signs; water meter covers; traffic

directional and control signs; traffic light signals;

telecommunications cable; utility-related articles; and historical

markers.

Sec. 11. (1) A dealer shall participate in, and maintain

participation in, an internet-based database available to dealers,

law enforcement agencies, and the general public that lists and

tracks, at a minimum, thefts of nonferrous metal and articles

containing nonferrous metals.

(2) The existing database established by the institute of

scrap recycling industries, inc., referred to as the ISRI theft

alert system, is considered an appropriate internet-based database.

A dealer may participate in any other database that provides

substantially the same services as the database described in

subsection (1).

Sec. 13. A person who violates section 7[ ] is guilty of a

misdemeanor punishable by a fine of not more than $500.00 or

imprisonment for not more than 93 days, or both.

Sec. 15. (1) A person violating this act is responsible for a

state civil infraction and may be ordered to pay a civil fine of

not more than $5,000.00.

(2) A person who [buys or sells nonferrous metal articles that he

or she has reason to believe were] stolen, is guilty of a felony

punishable

by imprisonment for not more than 5 years or a fine of not more

than $5,000.00, or both, for a first offense and is guilty of a

felony punishable by imprisonment for not more than 5 years or a

fine of not more than $10,000.00, or both, for a second or

subsequent offense.

Sec. 17. (1) A person may bring a private cause of action, in

a court of competent jurisdiction, for monetary damages suffered

from violation of this act by a seller or a dealer, or both.

(2) The court shall award treble damages for the value of the

nonferrous metal article stolen. The court may award costs

regarding any aspect of an action brought under subsection (1). As

used in this subsection, "value of the nonferrous metal article

stolen" means the greatest of the following:

(a) The replacement cost of the stolen article.

(b) The cost of repairing the damage caused by the larceny of

that article.

Sec. 19. (1) The remedies under this act are cumulative and do

not affect the ability or right of any other person, local

governmental unit, or state or federal governing unit to bring any

action under this or any other civil, criminal, or regulatory act

or ordinance that is otherwise not prohibited by law.

(2) This act does not exempt or release any person from the

following:

(a) Obtaining and maintaining a license under any other act or

ordinance.

(b) Complying with any strictures contained in any other act

or ordinance.