HB-6181, As Passed Senate, December 10, 2008

SENATE SUBSTITUTE FOR

HOUSE BILL NO. 6181

A bill to regulate the purchase and sale of certain nonferrous

metals; to provide for disclosures by certain persons regarding

certain transactions; to require the creation of 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 that is not a first purchaser

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, secondhand and junk dealer, or

other person who purchases any amount of nonferrous metal on a

regular, sporadic, or 1-time basis. Dealer does not include an

automotive recycler regulated by and complying with section 217 of

the Michigan vehicle code, 1949 PA 300, MCL 257.217; section 18 of

the motor vehicle service and repair act, 1974 PA 300, MCL

257.1318; or section 2 of 1986 PA 119, MCL 257.1352, when engaging

in activities that meet the definition of automotive recycler as

defined in section 2a of the Michigan vehicle code, 1949 PA 300,

MCL 257.2a.

(b) "Documentation" means a signed statement that indicates

where the person obtained the article, that the person is

authorized to sell the article, or other evidence that reasonably

demonstrates ownership of the article and the source of the

article.

quantities of iron or steel.

(d) "First purchaser" means the first buyer of a manufactured

product containing nonferrous metal in a retail or business-to-

business transaction. Persons purchasing nonferrous metal in

violation of this act, automotive recyclers, pawnshops, scrap metal

recyclers, and scrap processors are not considered first

purchasers.

(e) "Industrial or commercial account" means any person,

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

nonferrous metal to a scrap metal recycler pursuant to a written

agreement.

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

significant quantities of ferrous metal but contains copper, brass,

platinum-based metals, aluminum, bronze, lead, zinc, nickel, or

alloys of those metals.

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

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

other legal entity.

(h) "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 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.

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

accepted method of storing information in a retrievable form.

(j) "Scrap metal recycler" means a person that purchases

nonferrous metal that is intended for recycling or reuse, whether

regarded as a scrap processor, core buyer, or other similar

business operation.

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

of 1917 PA 350, MCL 445.403.

(l) "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 a method capable of being traced from the

dealer to the seller. Payment by cash or currency of more than

$50.00, barter, or trade is not considered a payment that complies

with the requirement of this subdivision. Payment of cash in any

amount in a transaction involving predominantly copper articles is

considered a violation of this subdivision.

(e) In the case of a transaction involving nonferrous metal,

verify that the seller is at least 16 years of age.

(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.

(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 a method capable of

being traced from the dealer to the seller and payment is made

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

periodically 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 documentation.

(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 documentation.

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

documentation.

(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 or

documentation.

(e) The article is subject to a notification or bulletin from

any law enforcement agency that is received by the dealer prior to

the purchase of the article.

(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 documentation.

(2) The tag and hold requirements of this section require the

dealer to also create and maintain the records required under

section 7 regarding those articles.

(3) The tag and hold requirements of subsection (1) do not

apply to any of the following:

(a) Any article containing nonferrous metal that does not

conform to the circumstances described in subsection (1).

(b) Any article that has been the subject of tag and hold by 1

dealer in compliance with this section if that article is resold

directly to another dealer. In addition, any article that was not

initially subject to the tag and hold provisions of this section is

not thereafter subject to the tag and hold provisions if that

article is resold to another dealer.

(4) 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.

Sec. 11. (1) A dealer shall register with or subscribe to, and

maintain that registration or subscription with, 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. The

database may be reasonably limited in terms of time and

geographical area.

(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 register with or subscribe to any other database that

provides substantially the same services as the database described

in subsection (1).

Sec. 13. (1) A person who violates section 7(1) or section 9

knowing or having reason to know that he or she is violating those

sections 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.

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

knowing or having reason to know that they are 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. 15. A person violating this act knowing or having reason

to know that he or she is 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.

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.

Sec. 21. This act takes effect April 1, 2009.

Sec. 23. This act does not take effect unless all of the

following bills of the 94th Legislature are enacted into law:

(a) Senate Bill No. 720.

(b) Senate Bill No. 1114.

(d) House Bill No. 5694.