1.Short title; table of
contents
(a)This Act may be cited as the Secondary
Metal Theft Prevention Act of 2009
.
(b)The table of contents for this Act is as follows:
Sec. 1. Short title; table of
contents.
Sec. 2. Findings.
Sec. 3. Sense of the Congress.
Sec. 4. Purposes.
Sec. 5. Purchase transaction
requirements.
Sec. 6. Protection of personal
information.
Sec. 7. Enforcement by Federal Trade
Commission.
Sec. 8. Enforcement by State Attorneys
General.
Sec. 9. Civil penalty.
Sec. 10. State and local law not
preempted.
Sec. 11. Definitions.
Sec. 12. Effective date.
2.The Congress finds the following:
(1)Since 2006, metal
theft has been on the rise, largely due to a surge in the global demand for
scrap metal and a historic increase in the price of metal commodities.
(2)Theft of metal
components is jeopardizing the integrity of critical infrastructure in the
United States through theft of metal in transportation, electrical, and
telecommunications networks.
(3)Theft of manhole
covers, storm water grates, highway guard rails, railroad tracks, automobile
components, and street lamps pose a significant public safety risk.
(4)Many State laws
call on secondary metal recyclers to help deter this crime and assist law
enforcement by documenting transactions and collecting information in order to
identify the sellers of scrap metal and the material they are selling. These
laws have been a significant deterrent to the problem of metal theft.
(5)Although many
States have enacted metal theft laws, metal theft is a nationwide crime that
crosses state lines.
(6)An overarching
Federal law is necessary to deter metal theft across the country.
(7)Combating the
problem of metal theft will require improved communications between metal
businesses and law enforcement agencies.
(8)The secondary
metal recycling industry should be commended for educating the public and law
enforcement to the problems related to metal theft, issuing Do Not
Buy
lists, partnering with the National Crime Prevention Council, and
creating a Theft Alert System.
3.It is the sense of
the Congress that Federal, State, and local government agencies should work
with representatives of the secondary metal recycling industry to develop and
improve effective countermeasures to combat the theft and sale of stolen
secondary metal.
4.The purposes of this Act are—
(1)to
protect consumers, businesses, critical infrastructure, and State and local
governments from the problem of secondary metal theft;
(2)to regulate
interstate commerce by limiting trafficking in stolen secondary metal sold for
the purpose of recycling or reuse;
(3)to permit
legitimate secondary metal transactions to continue to take place; and
(4)to establish a
system to document secondary metal transactions between sellers and buyers
while addressing the growing problem of secondary metal theft.
5.Purchase
transaction requirements
(a)Unless the seller establishes by written documentation that
the seller is the owner, or an employee, agent, or other person authorized to
sell on behalf of the owner, it is unlawful for a secondary metal recycling
agent to purchase for recycling any secondary metal that is—
(1)marked with name,
logo, or initials of a railroad, an electric, gas, or water company, a
telephone company, cable company, or a public utility or that has been altered
to remove, conceal, or obliterate such a name, logo, or initials through
burning or cutting of wire sheathing or other means;
(2)marked with the
name of a city, county, or State government entity;
(3)a
street light pole or fixture;
(4)a
road or bridge guard rail;
(5)a
highway or street sign;
(6)a
water meter cover;
(7)a
storm water grate;
(8)unused or
undamaged building construction or utility material;
(9)an historical
marker;
(10)a grave marker or
cemetery urn or vase;
(11)a utility access
cover; or
(12)a bulk container
for beer with a capacity of 7.75 gallons or more.
(b)
(1)A secondary metal recycling agent shall maintain a
written or electronic record of each secondary metal purchase. The record shall
include—
(A)the agent’s name
and address;
(B)the date of the
transaction;
(C)a description of
the secondary metal purchased, including—
(i)a
general physical description;
(ii)a
product description, such as wire, tubing, extrusions, casting, or other kind
of product; and
(iii)the weight,
quantity, or volume purchased;
(D)the amount paid by
the agent;
(E)the name and
address of the person to which the payment was made;
(F)the name of the
person delivering the secondary metal to the agent, including a distinctive
number from a Federal or State government-issued photo identification card and
a description of the type of the identification; and
(G)the license tag
number, State-of-issue, make, and model, if available, of the vehicle used to
deliver the secondary metal to the agent.
(2)A secondary metal recycling agent may comply with the
requirements of paragraph (1) with respect to the second or a subsequent
purchase of secondary metal from the same person by—
(A)reference to the
existing record relating to the seller; and
(B)recording any
information for the transaction that is different from the existing record for
that person.
(3)A secondary metal recycling agent shall maintain any
record required by this subsection for not less than 2 years from the date of
the transaction to which the record relates.
(c)Purchases in
Excess of $75
(1)A secondary metal recycling agent may not pay cash for a
single purchase of secondary metal in excess of $75. For purposes of this
paragraph, more than 1 purchase in any 48-hour period from the same seller
shall be considered to be a single purchase.
(2)
(A)Except as provided in subparagraph (B), for any purchase
of secondary metal in excess of $75 a secondary metal recycling agent shall
make payment by check that—
(i)is
payable to the seller; and
(ii)includes the name
and address of the seller.
(B)Established
commercial transactionsA secondary metal recycling agent may
make payments for purchases of secondary metal in excess of $75 from a
governmental or commercial supplier of secondary metal with which the agent has
an established commercial relationship by electronic funds transfer or other
established commercial transaction payment method through a commercial bank if
the agent maintains a written record of such payments that identifies the
seller, the amount paid, and the date of the purchase.
(d)Public Notice
RequirementA secondary metal recycling agent shall display, at
its principal place of business and at any site at which secondary metal is
accepted by or for the agent, a printed notice advising the public that the
sale of stolen secondary metal is prohibited under Federal and State
laws.
6.Protection of
personal information
(a)A secondary metal recycling agent or the agent, employee,
or representative of a secondary metal recycling agent may not disclose the
identity of any person from which the agent purchases secondary metal without
the consent of the seller except in response to a request from a law
enforcement agency or judicial process.
(b)A
secondary metal recycling agent shall implement reasonable safeguards—
(1)to protect the
security of information required under section 5(b)(1) maintained by that
agent; and
(2)to
prevent unauthorized access to or disclosure of that information.
(c)A secondary metal recycling agency shall not be liable
to any seller for a disclosure of information required under section 5(b)(1) if
the secondary metal recycling agent has met the requirements of subsection (b)
of this section.
7.Enforcement by
Federal Trade Commission
(a)Violation of any provision of this Act shall be treated
as a violation of a rule under section 18 of the Federal Trade Commission Act (15 U.S.C. 57a)
regarding unfair or deceptive acts or practices. The Federal Trade Commission
shall enforce this Act in the same manner, by the same means, and with the same
jurisdiction, powers, and duties as though all applicable terms and provisions
of the Federal Trade Commission Act
(15 U.S.C. 41 et seq.) were incorporated into and made a part of this
Act.
(b)
(1)The Commission may promulgate such regulations as it
finds necessary or appropriate under this Act.
(2)Within 6 months after the date of enactment of this Act,
the Commission shall promulgate a final rule—
(A)setting forth the
minimum requirements for the documentation required by section 5(a);
(B)establishing
criteria for record retention under section 5(b)(3);
(C)establishing
requirements for treatment of a seller as a governmental or commercial supplier
with an established commercial relationship under section 5(c)(2)(B);
(D)establishing
public notice requirements under section 5(d); and
(E)establishing
criteria for safeguards under section 6(b).
8.Enforcement by
State Attorneys General
(a)A State, as parens patriae, may bring a civil action on
behalf of its residents in an appropriate district court of the United States
to enforce the provisions of this Act whenever the attorney general of the
State has reason to believe that the interests of the residents of the State
have been or are being threatened or adversely affected by the violation of
this Act or a regulation under this Act by a secondary metal recycling agent
doing business in that State.
(b)
(1)At least 30 days before filing an action under
subsection (a), the attorney general of the State involved shall provide to the
Federal Trade Commission—
(A)written notice of
the action; and
(B)a copy of the
complaint for the action.
(2)The State may bring the action if it does not receive a
request from the Federal Trade Commission, within 30 days after the Commission
receives the notice, not to proceed with its action.
(c)After receiving notice under subsection (b), the
Commission may—
(1)request that the
State not proceed with the action pending the final disposition of a pending
Federal proceeding or action;
(2)initiate an action
in the appropriate United States district court and move to consolidate all
pending actions, including State actions, in such court;
(3)intervene in the
action brought under subsection (a); or
(4)file petitions for
appeal of a decision in such action.
(c)Pending Federal
ProceedingsIf the Federal Trade Commission has instituted an
enforcement action against a secondary metal recycling agent for a violation of
this Act or any regulation under this Act, a State may not bring an action,
during the pendency of the Commission’s enforcement action, under this section
against that secondary metal recycling agent for any violation alleged in the
Commission’s enforcement action.
(d)For
purposes of bringing any civil action under subsection (a), nothing in this
section regarding notification shall be construed to prevent the attorney
general of a State from exercising the powers conferred on such attorney
general by the laws of that State to—
(1)conduct
investigations;
(2)administer oaths
or affirmations; or
(3)compel the
attendance of witnesses or the production of documentary and other
evidence.
(e)Venue; Service
of Process
(1)Any
action brought under subsection (a) may be brought in—
(A)the district court
of the United States that meets applicable requirements relating to venue under
section 1391 of title 28, United States Code; or
(B)another court of
competent jurisdiction.
(2)In an action brought under subsection (a), process may be
served in any district in which the defendant—
(A)is an inhabitant;
or
(B)may be
found.
9.The knowing violation
of any provision of this Act is punishable by a civil penalty of not to exceed
$10,000.
10.State and local
law not preemptedNothing in
this Act preempts any State or local law regulating the sale or purchase of
secondary metal.
11.In this Act:
(1)The term secondary metal means—
(A)wire or cable
commonly used by communications and electrical utilities; and
(B)copper, aluminum,
or other metal (including any metal combined with other materials) that is
valuable for recycling or reuse as raw metal.
(2)Secondary metal
recycling agentThe term secondary metal recycling
agent means any person engaged in the business of purchasing secondary
metal for reuse or recycling, without regard to whether that person is engaged
in the business of recycling or otherwise processing the purchased secondary
metal for reuse.
12.Except as required by
section 7(b)(2), this Act shall take effect 6 months after the date of
enactment.