May 22, 2008, Introduced by Rep. Meisner and referred to the Committee on Commerce.
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,
auto recycler, 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.
(c) "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.
(d) "Nonferrous metal" means a metal that does not contain
significant quantities of ferrous metal but contains copper, brass,
aluminum, bronze, lead, zinc, nickel, 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 worn
or superfluous nonferrous metal, whether regarded as a scrap
processor, auto recycler, 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.
(c) Tag and hold any nonferrous metal as provided for in
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 of more than $150.00, 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.
(c) Execute a signed statement indicating that the seller is
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 that is engaged in an investigation regarding the
transaction.
(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.
(c) The date and time of the transaction.
(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. In the case of a repeat
seller, a copy of the thumbprint may be kept on file with the
dealer and used for future transactions for up to 1 year.
(3) In the case of a seller that is an industrial or
commercial account, 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 and validated as current or updated by the
dealer.
Sec. 9. (1) A dealer shall tag and hold, for at least 7
calendar days, any article containing nonferrous metal purchased
from a seller that is not a dealer, 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.
(c) Where, due to the identification on the article, the
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 or any
member of the public.
(2) Any article containing predominantly 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
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). A dealer participating in a database described in
this subsection is considered in compliance with subsection (1) and
may use due diligence as a defense to any criminal or civil action
brought under this act against the dealer.
Sec. 13. A person who violates section 7(1) 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. 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.
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.
(c) The total of subdivisions (a) and (b).
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.