May 7, 2013, Introduced by Reps. Kowall, Cavanagh and Tlaib and referred to the Committee on Regulatory Reform.
A bill to amend 2008 PA 429, entitled
"Nonferrous metal regulatory act,"
by amending the title and sections 1, 3, 5, 7, 9, 11, 13, 15, and
17 (MCL 445.421, 445.423, 445.425, 445.427, 445.429, 445.431,
445.433, 445.435, and 445.437).
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
TITLE
An
act to regulate the purchase and sale of certain nonferrous
metals; to provide for disclosures by certain persons regarding
certain transactions; to require the creation and maintenance of
records
for certain purposes and for the use of certain databases
by
certain persons; the scrap
metal offenders registry and the
creation of the scrap metal offenders registration fund; to require
the registration of certain individuals; to prescribe the powers
and duties of certain public officials; to prescribe the payment
and collection of certain fees; and to provide for penalties and
remedies.
Sec. 1. This act shall be known and may be cited as the
"ferrous metal and nonferrous metal regulatory regulation and scrap
metal offenders registration act".
Sec. 3. As used in this act:
(a) "Dealer" means any person that is not a first purchaser
who
purchases ferrous metal, nonferrous metals metal, or both, 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 ferrous metal or nonferrous metal on a regular, sporadic,
or
1-time basis. Dealer does not include includes an automotive
recycler
regulated by and complying with section 217 any of the
following:
(i) Section 217c of the
Michigan vehicle code, 1949 PA 300, MCL
257.217;
section MCL 257.217c.
(ii) Section 18 of the motor vehicle service and repair act,
1974
PA 300, MCL 257.1318. ; or section
(iii) Section 2 of 1986 PA 119, MCL 257.1352, when engaging in
activities
that meet listed in the definition of automotive
recycler
as defined in under section 2a of the Michigan vehicle
code, 1949 PA 300, MCL 257.2a.
(b) "Department" means the department of state police.
(c) (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.
(d) (c)
"Ferrous metal" means a
metal that contains
significant quantities of iron or steel.
(e) (d)
"First purchaser" means
the first buyer of a
manufactured product containing ferrous metal or nonferrous metal
in a retail or business-to-business transaction. Persons purchasing
ferrous metal or nonferrous metal in violation of this act,
automotive recyclers, pawnshops, scrap metal recyclers, and scrap
processors are not considered first purchasers.
(f) (e)
"Industrial or commercial
account" means any a person,
operating from a fixed location, that is a seller of ferrous metal
or
nonferrous metal to a scrap metal recycler pursuant to under a
written agreement.
(g) (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.
(h) (g)
"Person" means an
individual, partnership,
corporation, limited liability company, joint venture, trust,
association, or other legal entity.
(i) (h)
"Public fixtures" means
articles containing ferrous
metal or 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.
(j) (i)
"Record" means a paper,
electronic, or other generally
accepted method of storing information in a retrievable form.
(k) "Scrap metal" means either or both of the following:
(i) Nonferrous metal in an amount weighing not less than 5
pounds.
(ii) Ferrous metal in an amount weighing not less than 100
pounds.
(l) "Scrap metal offense" means any crime involving the theft
of scrap metal.
(m) "Scrap metal offenders registry" means the public internet
website created and maintained under section 11.
(n) (j)
"Scrap metal recycler"
means a person that purchases
ferrous metal, nonferrous metal, or both, that is intended for
recycling or reuse, whether regarded as a scrap processor, core
buyer, or other similar business operation.
(o) (k)
"Scrap processor" means
that term as defined in
section 3 of 1917 PA 350, MCL 445.403.
(p) (l) "Seller"
means any an individual or person that either
regularly, sporadically, or on a 1-time basis receives
consideration
from any other another person from the purchase by a
dealer of ferrous metal or 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.
(b) Check the scrap metal offenders registry to determine
whether the seller is a registered offender listed on that website.
(c) Tag and hold any ferrous metal or nonferrous metal as
provided
for prescribed in section 9.
(d) Pay a seller by a method capable of being traced from the
dealer to the seller if the amount of the transaction is more than
$200.00. Payment by cash or currency of more than $50.00,
$200.00,
barter, or trade is not considered a payment that complies with the
requirement
of this subdivision. Payment of cash in any an amount
of more than $200.00 in a transaction involving predominantly
copper
articles is considered a violation of this subdivision.
(e) In the case of a transaction involving ferrous metal or
nonferrous
metal, verify that the seller is at least 16 18 years
of
age.
(f) For each transaction regulated under this act, the
purchasing dealer shall collect a regulatory fee of $1.00.
(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 which shall 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 ferrous metal
or nonferrous metal offered for purchase to the dealer.
(d) Attest to the lack of any criminal convictions or plea
agreements involving the theft, conversion, or sale of ferrous
metal or 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 ferrous
metal or 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 satisfies that 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
ferrous metal or nonferrous metal, or both.
(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.
(3) In the case of a seller that is an industrial or
commercial
account where in which 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 if 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 ferrous or 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 ferrous metal or nonferrous metal, or both,
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, If, due to the readily
observable identification on
the article or due to the type of article, including, but not
limited to, public fixtures, 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.
(c)
Where, If, 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
documentation.
(d) The article is patently 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 and the
dealer's representative who is transacting the purchase of the
article have received, prior to the purchase of the article.
(f)
Where the The article is patently
copper utility 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 An article containing ferrous metal or nonferrous
metal, or both, that does not conform to the circumstances
described in subsection (1).
(b)
Any An 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 an
article containing ferrous metal, nonferrous metal, or both, that
is
marked with any a readily
observable 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 The sale
of
any article described in this subsection is
subject to the
provisions
of this act.
(5) Beginning June 30, 2014, no later than the tenth day
following the last day of the previous month, a dealer shall remit
the fees collected under section 5(1)(f) during the previous month,
along with a list of transactions for which the fees were
collected, to the department for use and distribution as follows:
(a) Fifty percent shall be retained by the department and
shall be expended solely for the administration of the scrap metal
offenders registry and website established under section 11 and to
ensure dealers' compliance with their duties under section 5.
(b) Fifty percent shall be distributed by the department to
the local law enforcement agency serving the location where the
transaction occurred for which the regulatory fee was collected,
which that local law enforcement agency shall use solely for the
purpose of funding law enforcement activities to investigate,
prevent, or prosecute ferrous or nonferrous metal theft.
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).
(1) The department shall create and maintain a public internet
website to implement section 5, which shall be known as the scrap
metal offenders registry, and make the website available to
dealers, law enforcement agencies, and the general public. The
public internet website shall contain all of the following
information for each individual registered under this section:
(a) The individual's legal name and any aliases, nicknames,
ethnic or tribal names, or other names by which the individual is
or has been known.
(b) The individual's date of birth.
(c) The address where the individual resides. If the
individual does not have a residential address, information under
this subsection shall identify the village, city, or township the
individual uses in lieu of an address or where the individual
spends the majority of his or her time if he or she is homeless.
(d) A brief summary of the individual's convictions for scrap
metal offenses regardless of when the conviction occurred.
(e) A complete physical description of the individual.
(f) A photograph of the individual.
(g) An image of the individual's fingerprints.
(h) The text of the provision of law the individual was
convicted of committing.
(i) The value of the stolen property involved in each scrap
metal offense.
(j) The details of any plea agreement entered into involving a
scrap metal offense.
(2) An individual who is convicted of a scrap metal offense or
who enters into a plea agreement involving a scrap metal offense
shall register with the sheriff's department, local law enforcement
agency, or department post with jurisdiction in the local
governmental unit in which he or she resides, or not more than 30
days after sentencing, changing his or her residence, or being
released from imprisonment, whichever occurs earliest, by paying a
fee of $50.00 and providing all of the information listed in
subsection (1). The individual shall register not more than 1 year
after initial registration, and annually each year after that.
(3) Of the money collected by a local law enforcement agency,
sheriff's department, or department post from each registration fee
prescribed under this section, $30.00 shall be forwarded to the
department, which shall deposit the money in the scrap metal
offenders registration fund created under subsection (4), and
$20.00 shall be retained by the local law enforcement agency,
sheriff's department, or department post.
(4) The scrap metal offenders registration fund is created as
a separate fund in the department of treasury. The state treasurer
shall credit the money received from the payment of the
registration fee prescribed under this section to the scrap metal
offenders registration fund. Money credited to the fund shall only
be used by the department for training concerning, and the
maintenance and automation of, the law enforcement database, scrap
metal offenders registry, and information required under this
section. Money in the scrap metal offenders registration fund at
the close of the fiscal year shall remain in the fund and shall not
lapse to the general fund.
(5) If an individual required to pay a registration fee under
this section is indigent, the registration fee shall be waived for
a period of 90 days. The burden is on the individual claiming
indigence to prove the fact of indigence to the satisfaction of the
local law enforcement agency, sheriff's department, or department
post where the individual is reporting.
(6) Payment of the registration fee prescribed under this
section shall be made in the form and by means prescribed by the
department. Upon payment of the registration fee prescribed under
this section, the local law enforcement agency, sheriff's
department, or department post where payment was made shall forward
verification of the payment to the department in the manner the
department prescribes. The department shall revise the scrap metal
offenders registry maintained under this section as necessary and
shall indicate verification of payment in the law enforcement
database under this section.
Sec.
13. (1) A Except as
otherwise provided in this
subsection, a person who violates section 7(1) or section 9,
knowing
or having other than section
9(5), who knows or has reason
to
know that he or she is violating those sections that section 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. A
dealer who fails to remit a regulatory fee collected under section
9(5) is guilty of a misdemeanor punishable as follows:
(a) For a first offense, a fine of $1,000.00, and the
remittance to the department of the fees the dealer was required,
but failed, to remit to the department under section 9(5).
(b) For a second offense, a fine of $3,000.00, and the
remittance to the department of the fees the dealer was required,
but failed, to remit to the department under section 9(5).
(c) For a third or subsequent offense, imprisonment for not
more than 93 days, a fine of $5,000.00, and the remittance to the
department of the fees the dealer was required, but failed, to
remit to the department under section 9(5).
(2) A person who buys or sells ferrous metal or nonferrous
metal
articles knowing or having reason to know that they are it is
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. A person
who buys or sells ferrous or nonferrous metal, or both, from an
individual who is registered on the scrap metal offender registry
on the date of the most recent listing then publicly available at
the time of the transaction is presumed to know that the metal is
stolen.
(3) A dealer who fails to collect a regulatory fee as required
under section 5(1)(f) is guilty of a misdemeanor punishable by
imprisonment for not more than 1 year or a fine of not more than
$5,000.00, or both.
(4) A person who is required to register as a scrap metal
offender under section 11 and who fails to do so, other than
failing to pay the fee required under section 11, is guilty of a
misdemeanor punishable by imprisonment for not more than 1 year or
a fine of not more than $2,000.00, or both.
(5) An individual who willfully refuses or fails to pay the
registration fee prescribed in section 11 within 90 days of the
date the individual reports under that section is guilty of a
misdemeanor punishable by imprisonment for not more than 90 days.
(6) The court shall revoke the probation of an individual
placed on probation who willfully violates section 11.
(7) The court shall revoke the youthful trainee status of an
individual assigned to youthful trainee status who willfully
violates section 11.
(8) The parole board shall rescind the parole of an individual
released on parole who willfully violates section 11.
(9) An individual's failure to register as required by section
11 may be prosecuted in the judicial district of any of the
following:
(a) The individual's last registered address or residence.
(b) The individual's actual address or residence.
(c) Where the individual was arrested for the violation.
Sec.
15. A person violating who
violates this act, knowing
or
having
other than a crime described
in section 13, who knows or has
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 may award treble damages for the value of
the ferrous metal or 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 ferrous
metal or 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).