[Congressional Bills 112th Congress]
[From the U.S. Government Publishing Office]
[S. 3631 Introduced in Senate (IS)]

112th CONGRESS
  2d Session
                                S. 3631

   To prohibit and deter the theft of metal, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           November 15, 2012

  Ms. Klobuchar (for herself and Mr. Graham) introduced the following 
    bill; which was read twice and referred to the Committee on the 
                               Judiciary

_______________________________________________________________________

                                 A BILL


 
   To prohibit and deter the theft of metal, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Metal Theft Prevention Act of 
2012''.

SEC. 2. DEFINITIONS.

    In this Act--
            (1) the term ``critical infrastructure'' has the meaning 
        given the term in section 1016(e) of the Uniting and 
        Strengthening America by Providing Appropriate Tools Required 
        to Intercept and Obstruct Terrorism (USA PATRIOT ACT) Act of 
        2001 (42 U.S.C. 5195c(e));
            (2) the term ``specified metal'' means metal that--
                    (A)(i) is marked with the name, logo, or initials 
                of a city, county, State, or Federal government entity, 
                a railroad, an electric, gas, or water company, a 
                telephone company, a cable company, a retail 
                establishment, or a public utility; or
                    (ii) has been altered in such a manner that a 
                recycling agent would have a reasonable basis to 
                believe that such alteration was made for the purpose 
                of removing, concealing, or obliterating a name, logo, 
                or initials described in clause (i) through burning or 
                cutting of wire sheathing or other means; or
                    (B) is part of--
                            (i) a street light pole or fixture;
                            (ii) a road or bridge guard rail;
                            (iii) a highway or street sign;
                            (iv) a water meter cover;
                            (v) a storm water grate;
                            (vi) unused or undamaged building 
                        construction or utility material;
                            (vii) a historical marker;
                            (viii) a grave marker or cemetery urn;
                            (ix) a utility access cover; or
                            (x) a container used to transport or store 
                        beer with a capacity of 7.75 gallons or more;
                    (C) is a wire or cable commonly used by 
                communications and electrical utilities; or
                    (D) is copper, aluminum, and other metal (including 
                any metal combined with other materials) that is 
                valuable for recycling or reuse as raw metal, except 
                for aluminum cans; and
            (3) the term ``recycling agent'' means any person engaged 
        in the business of purchasing specified metal for reuse or 
        recycling, without regard to whether that person is engaged in 
        the business of recycling or otherwise processing the purchased 
        specified metal for reuse.

SEC. 3. THEFT OF SPECIFIED METAL.

    (a) Offense.--It shall be unlawful to steal specified metal--
            (1) being used in or affecting interstate or foreign 
        commerce; and
            (2) the theft of which harms critical infrastructure, 
        including metal used as part of an electrical substation, power 
        line, cellular tower, telephone land line, highway equipment 
        and facilities, railroad equipment and facilities, water well, 
        reservoir, or sewage line.
    (b) Penalty.--Any person who commits an offense described in 
subsection (a) shall be fined under title 18, United States Code, 
imprisoned not more than 10 years, or both.

SEC. 4. DOCUMENTATION OF OWNERSHIP OR AUTHORITY TO SELL.

    (a) Offenses.--
            (1) In general.--Except as provided in paragraph (2), it 
        shall be unlawful for a recycling agent to purchase specified 
        metal described in subparagraph (A) or (B) of section 2(2), 
        unless--
                    (A) the seller, at the time of the transaction, 
                provides documentation of ownership of, or other proof 
                of the authority of the seller to sell, the specified 
                metal; and
                    (B) there is a reasonable basis to believe that the 
                documentation or other proof of authority provided 
                under subparagraph (A) is valid.
            (2) Exception.--Paragraph (1) shall not apply to a 
        recycling agent that is subject to a State or local law that 
        sets forth a requirement on recycling agents to obtain 
        documentation of ownership or proof of authority to sell 
        specified metal before purchasing specified metal.
            (3) Responsibility of recycling agent.--A recycling agent 
        is not required to independently verify the validity of the 
        documentation or other proof of authority described in 
        paragraph (1).
            (4) Purchase of stolen metal.--It shall be unlawful for a 
        recycling agent to purchase any specified metal that the 
        recycling agent knows, or has a reasonable basis to believe, to 
        be stolen.
    (b) Civil Penalty.--A person who knowingly violates subsection (a) 
shall be subject to a civil penalty of not more than $10,000 for each 
violation.

SEC. 5. TRANSACTION REQUIREMENTS.

    (a) Recording Requirements.--
            (1) In general.--Except as provided in paragraph (2), a 
        recycling agent shall maintain a written or electronic record 
        of each purchase of specified metal.
            (2) Exception.--Paragraph (1) shall not apply to a 
        recycling agent that is subject to a State or local law that 
        sets forth recording requirements that are substantially 
        similar to the requirements described in paragraph (3) for the 
        purchase of specified metal.
            (3) Contents.--A record under paragraph (1) shall include--
                    (A) the name and address of the recycling agent; 
                and
                    (B) for each purchase of specified metal--
                            (i) the date of the transaction;
                            (ii) a description of the specified metal 
                        purchased using widely used and accepted 
                        industry terminology;
                            (iii) the amount paid by the recycling 
                        agent;
                            (iv) the name and address of the person to 
                        which the payment was made;
                            (v) the name of the person delivering the 
                        specified metal to the recycling 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
                            (vi) the license plate number and State-of-
                        issue, make, and model, if available, of the 
                        vehicle used to deliver the specified metal to 
                        the recycling agent.
            (4) Repeat sellers.--A recycling agent may comply with the 
        requirements of this subsection with respect to a purchase of 
        specified metal from a person from which the recycling agent 
        has previously purchased specified metal by--
                    (A) reference to the existing record relating to 
                the seller; and
                    (B) recording any information for the transaction 
                that is different from the record relating to the 
                previous purchase from that person.
            (5) Record retention period.--A recycling agent shall 
        maintain any record required under this subsection for not less 
        than 2 years after the date of the transaction to which the 
        record relates.
            (6) Confidentiality.--
                    (A) Recycling agents.--A recycling agent cannot be 
                required to provide any information collected or 
                retained under this subsection to any person other than 
                a law enforcement agency with jurisdiction over the 
                recycling agent, unless acting pursuant a court order.
                    (B) Other persons.--Any person other than a 
                recycling agent who receives information collected or 
                retained under this subsection from a recycling agent 
                may not provide such information to any person other 
                than a law enforcement agency with jurisdiction over 
                the recycling agent, unless acting pursuant a court 
                order.
    (b) Purchases in Excess of $100.--
            (1) In general.--Except as provided in paragraph (2), a 
        recycling agent may not pay cash for a single purchase of 
        specified metal of more than $100. 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) Exception.--Paragraph (1) shall not apply to a 
        recycling agent that is subject to a State or local law that 
        sets forth a maximum amount for cash payments for the purchase 
        of specified metal.
            (3) Payment method.--
                    (A) Occasional sellers.--Except as provided in 
                subparagraph (B), for any purchase of specified metal 
                of more than $100 a 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 transactions.--A 
                recycling agent may make payments for a purchase of 
                specified metal of more than $100 from a governmental 
                or commercial supplier of specified metal with which 
                the recycling agent has an established commercial 
                relationship by electronic funds transfer or other 
                established commercial transaction payment method 
                through a commercial bank if the recycling agent 
                maintains a written record of the payment that 
                identifies the seller, the amount paid, and the date of 
                the purchase.
    (c) Civil Penalty.--A person who knowingly violates subsection (a) 
or (b) shall be subject to a civil penalty of not more than $10,000 for 
each violation.

SEC. 6. ENFORCEMENT BY ATTORNEY GENERAL.

    The Attorney General may bring an enforcement action in an 
appropriate United States district court against any person that 
engages in conduct that violates this Act.

SEC. 7. ENFORCEMENT BY STATE ATTORNEYS GENERAL.

    (a) In General.--An attorney general or equivalent regulator of a 
State may bring a civil action in the name of the State, as parens 
patriae on behalf of natural persons residing in the State, in any 
district court of the United States or other competent court having 
jurisdiction over the defendant, to secure monetary or equitable relief 
for a violation of this Act.
    (b) Notice Required.--Not later than 30 days before the date on 
which an action under subsection (a) is filed, the attorney general or 
equivalent regulator of the State involved shall provide to the 
Attorney General--
            (1) written notice of the action; and
            (2) a copy of the complaint for the action.
    (c) Attorney General Action.--Upon receiving notice under 
subsection (b), the Attorney General shall have the right--
            (1) to intervene in the action;
            (2) upon so intervening, to be heard on all matters arising 
        therein;
            (3) to remove the action to an appropriate district court 
        of the United States; and
            (4) to file petitions for appeal.
    (d) Pending Federal Proceedings.--If a civil action has been 
instituted by the Attorney General for a violation of this Act, no 
State may, during the pendency of the action instituted by the Attorney 
General, institute a civil action under this Act against any defendant 
named in the complaint in the civil action for any violation alleged in 
the complaint.
    (e) Construction.--For purposes of bringing a civil action under 
subsection (a), nothing in this section regarding notification shall be 
construed to prevent the attorney general or equivalent regulator of 
the State from exercising any powers conferred under 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.

SEC. 8. DIRECTIVE TO SENTENCING COMMISSION.

    (a) In General.--Pursuant to its authority under section 994 of 
title 28, United States Code, and in accordance with this section, the 
United States Sentencing Commission, shall review and, if appropriate, 
amend the Federal Sentencing Guidelines and policy statements 
applicable to a person convicted of a criminal violation of section 3 
of this Act or any other Federal criminal law based on the theft of 
specified metal by such person.
    (b) Considerations.--In carrying out this section, the Sentencing 
Commission shall--
            (1) ensure that the sentencing guidelines and policy 
        statements reflect the--
                    (A) serious nature of the theft of specified metal; 
                and
                    (B) need for an effective deterrent and appropriate 
                punishment to prevent such theft;
            (2) consider the extent to which the guidelines and policy 
        statements appropriately account for--
                    (A) the potential and actual harm to the public 
                from the offense, including any damage to critical 
                infrastructure;
                    (B) the amount of loss, or the costs associated 
                with replacement or repair, attributable to the 
                offense;
                    (C) the level of sophistication and planning 
                involved in the offense; and
                    (D) whether the offense was intended to or had the 
                effect of creating a threat to public health or safety, 
                injury to another person, or death;
            (3) account for any additional aggravating or mitigating 
        circumstances that may justify exceptions to the generally 
        applicable sentencing ranges;
            (4) assure reasonable consistency with other relevant 
        directives and with other sentencing guidelines and policy 
        statements; and
            (5) assure that the sentencing guidelines and policy 
        statements adequately meet the purposes of sentencing as set 
        forth in section 3553(a)(2) of title 18, United States Code.

SEC. 9. STATE AND LOCAL LAW NOT PREEMPTED.

    Nothing in this Act shall be construed to preempt any State or 
local law regulating the sale or purchase of specified metal.

SEC. 10. EFFECTIVE DATE.

    This Act shall take effect 180 days after the date of enactment of 
this Act.
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