S. 394 — Reported in Senate

II Calendar No. 88 113th CONGRESS 1st Session S. 394 IN THE SENATE OF THE UNITED STATES February 27, 2013 Ms. Klobuchar (for herself, Mr. Graham, Mr. Schumer, Mr. Hoeven, and Mr. Coons) introduced the following bill; which was read twice and referred to the Committee on the Judiciary June 17, 2013 Reported by Mr. Leahy, with an amendment Strike out all after the enacting clause and insert the part printed in italic A BILL To prohibit and deter the theft of metal, and for other purposes. 1. Short title This Act may be cited as the Metal Theft Prevention Act of 2013. 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. 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. 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. 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 to 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 to 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. 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. 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. 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. 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. 10. Effective date This Act shall take effect 180 days after the date of enactment of this Act. 1. Short title This Act may be cited as the Metal Theft Prevention Act of 2013. 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, a beer supplier or distributor, or a public utility; or (ii) has been altered 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 street light 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 5 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— (i) aluminum cans; and (ii) motor vehicles, the purchases of which are reported to the National Motor Vehicle Title Information System (established under section 30502 of title 49); 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. 3. Theft of specified metal (a) Offense It shall be unlawful to knowingly steal specified metal— (1) being used in or affecting interstate or foreign commerce; and (2) the theft of which is from and harms critical infrastructure. (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. 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— (A) knows to be stolen; or (B) should know or believe, based upon commercial experience and practice, 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. 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 Any information collected or retained under this section may be disclosed to any Federal, State, or local law enforcement authority or as otherwise directed by a court of law. (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 $5,000 for each violation, except that a person who commits a minor violation shall be subject to a penalty of not more than $1,000. 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. 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. 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. 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, the reporting of such transactions, or any other aspect of the metal recycling industry. 10. Effective date This Act shall take effect 180 days after the date of enactment of this Act. June 17, 2013 Reported with an amendment