80R15364 YDB-D

By: Carona S.B. No. 1154

Substitute the following for S.B. No. 1154:

By: BonnenC.S.S.B. No. 1154C.S.S.B. No. 1154 Bonnen C.S.S.B. No. 1154

A BILL TO BE ENTITLED

AN ACT

relating to regulation of metal recycling entities; providing penalties.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:

SECTION 1. The heading to Chapter 1956, Occupations Code, is amended to read as follows:

CHAPTER 1956. [SALES TO METAL DEALERS AND]

METAL RECYCLING ENTITIES

SECTION 2. Subchapter A, Chapter 1956, Occupations Code, is amended to read as follows:

SUBCHAPTER A. SALE OF REGULATED MATERIAL [ALUMINUM, BRONZE, OR

COPPER OR BRASS MATERIAL TO SECONDHAND METAL DEALERS]

Sec. 1956.001. DEFINITIONS. In this chapter [subchapter]:

(1) "Aluminum material" means a product made from aluminum, an aluminum alloy, or an aluminum by-product. The term includes aluminum wiring and an aluminum beer keg but does not include another type of aluminum can used to contain a food or beverage.

(2) "Bronze material" means:

(A) a cemetery vase, receptacle, or memorial made from bronze;

(B) bronze statuary; or

(C) material readily identifiable as bronze, including bronze wiring.

(3) "Commission" means the Public Safety Commission.

(4) "Copper or brass material" means:

(A) insulated or noninsulated copper wire or cable of the type used by a public utility or common carrier that consists of at least 50 percent copper; [or]

(B) a copper or brass item of a type commonly used in construction or by a public utility; or

(C) copper pipe or copper tubing.

(5) [(4)] "Department" means the Texas Department of Public Safety.

(6) "Director" means the public safety director.

(7) "Metal recycling entity" means a business that is predominantly engaged in:

(A) performing the manufacturing process by which scrap, used, or obsolete ferrous or nonferrous metal is converted into raw material products consisting of prepared grades and having an existing or potential economic value, by a method other than the exclusive use of hand tools, including processing, sorting, cutting, classifying, cleaning, baling, wrapping, shredding, shearing, or changing the physical form of that metal; or

(B) the use of raw material products described under Paragraph (A) in the manufacture of producer or consumer goods.

(8) [(5)] "Personal identification document" means:

(A) a valid driver's license issued by a state in the United States;

(B) a United States military identification card; or

(C) [a passport issued by the United States or by another country and recognized by the United States; or

[(D)] a personal identification certificate issued by the department under Section 521.101, Transportation Code, or a corresponding card or certificate issued by another state.

(9) [(6)] "Regulated material" means:

(A) aluminum material;

(B) bronze material; [or]

(C) copper or brass material; or

(D) regulated metal.

(10) "Regulated metal" means metal items regulated under this chapter in accordance with department rules, including:

(A) manhole covers;

(B) guardrails;

(C) compressed cylinders;

(D) beer kegs made from metal other than aluminum;

(E) historical markers or cemetery vases, receptacles, or memorials made from metal other than aluminum;

(F) unused rebar;

(G) street signs;

(H) drain gates;

(I) safes;

(J) communication, transmission, and service wire or cable;

(K) condensing or evaporator coils for heating or air conditioning units;

(L) electric light poles, including the fixtures and hardware;

(M) aluminum or stainless steel containers designed to hold propane for fueling forklifts; and

(N) metal railroad equipment, including tie plates, signal houses, control boxes, signs, signals, traffic devices, traffic control devices, traffic control signals, switch plates, e-clips, and rail tie functions.

[(7)"Secondhand metal dealer" means:

[(A) an auto wrecker, a scrap metal processor, or another person or organization that purchases, collects, or solicits regulated material; or

[(B) a person who operates or maintains a scrap metal yard or other place in which scrap metal or cast-off regulated material is collected or kept for shipment, sale, or transfer.]

Sec. 1956.002. EXCEPTION. This chapter [subchapter] does not apply to:

(1) a purchase of regulated material from a public utility or a manufacturing, industrial, [or other] commercial, retail, or other seller [vendor] that sells regulated material in the ordinary course of the seller's [vendor's] business; or

(2) a purchase of regulated material by a manufacturer whose primary business is the manufacture of iron and steel products made from melting scrap iron and scrap steel.

Sec. 1956.0025. LOCAL LAW. (a) A county, municipality, or political subdivision of this state may adopt a rule, charter, or ordinance or issue an order or impose standards that are more stringent than but do not conflict with this chapter or rules adopted under this chapter.

(b) A county, municipality, or political subdivision of this state may issue a license or permit to a business to allow the business to act as a metal recycling entity in that county or municipality.

Sec. 1956.003. NOTICE TO SELLERS. (a) A metal recycling entity [secondhand metal dealer] shall at all times maintain in a prominent place in the entity's [dealer's] place of business, in open view to a seller of regulated material, a notice in two-inch lettering that:

(1) includes the following language:

"A PERSON ATTEMPTING TO SELL ANY REGULATED MATERIAL MUST PRESENT SUFFICIENT IDENTIFICATION AND WRITTEN PROOF OF OWNERSHIP REQUIRED BY STATE LAW."

"WARNING: STATE LAW PROVIDES A CRIMINAL PENALTY FOR A PERSON WHO INTENTIONALLY PROVIDES A FALSE DOCUMENT OF IDENTIFICATION OR OTHER FALSE INFORMATION TO A METAL RECYCLING ENTITY [SECONDHAND METAL DEALER] WHILE ATTEMPTING TO SELL ANY REGULATED MATERIAL."; and

(2) states the metal recycling entity's [secondhand metal dealer's] usual business hours.

(b) The notice required by this section may be contained on a sign that contains another notice if the metal recycling entity [secondhand metal dealer] is required to display another notice under applicable law.

Sec. 1956.004. INFORMATION PROVIDED BY SELLER. (a) Except as provided by Subsection (f), a [A] person attempting to sell regulated material to a metal recycling entity [secondhand metal dealer] shall:

(1) display to the metal recycling entity [secondhand metal dealer] the person's personal identification document;

(2) provide to the metal recycling entity the make, model, and license plate number of the motor vehicle used to transport the regulated material [or sign a statement that the person does not possess such a document]; and

(3) either:

(A) present written documentation evidencing that the person is the legal owner or is lawfully entitled to sell the regulated material; or

(B) [(2)] sign a written statement provided by the metal recycling entity [secondhand metal dealer] that the person is the legal owner of or is lawfully entitled to sell the regulated material offered for sale.

(b) A person required by a municipality to prepare a signed statement consisting of the information required by Subsection (a)(3) [(a)(1) or (2)] may use the statement required by the municipality to comply with Subsection (a)(3) [(a)(1) or (2)].

(c) The metal recycling entity [secondhand metal dealer] or the entity's [dealer's] agent shall visually verify the accuracy of the identification presented by the seller at the time of the purchase of regulated material and make a copy of the identification to be maintained by the entity in the entity's records, except as otherwise provided by Subsection (f).

(d) The metal recycling entity or the entity's agent for recordkeeping purposes may photograph the seller's entire face, not including any hat, and obtain the name of the seller's employer.

(e) The metal recycling entity or the entity's agent for recordkeeping purposes may take a photograph of the motor vehicle of the seller in which the make, model, and license plate number of the motor vehicle are identifiable in lieu of the information required under Subsection (a)(2).

(f) The metal recycling entity is not required to make a copy of the identification as required under Subsection (c) or collect the information required under Subsection (a)(2) if:

(1) the seller signs the written statement as required under Subsection (a)(3);

(2) the seller has previously provided the information required under Subsections (a)(1), (2), and (3); and

(3) that information has not changed.

Sec. 1956.005. RECORD OF PURCHASE. (a) Each metal recycling entity [A secondhand metal dealer] in this state shall keep an accurate electronic record or an accurate and legible written record of each purchase made in the course of the entity's [dealer's] business from an individual of:

(1) copper or brass material [in excess of 50 pounds];

(2) bronze material; [or]

(3) aluminum material; or

(4) regulated metal [in excess of 40 pounds].

(b) The record must be in English and include:

(1) the place and date of the purchase;

(2) the name and address of each individual from whom the regulated material is purchased or obtained;

(3) the identifying number of the seller's personal identification document;

(4) a description made in accordance with the custom of the trade of the type and quantity of regulated material purchased; and

(5) the information [statement] required by Section 1956.004(a)(3)[1956.004(a)(2)].

Sec. 1956.006. PRESERVATION OF RECORDS. A metal recycling entity [secondhand metal dealer] shall preserve each record required by Sections 1956.004 and [Section] 1956.005 until the third anniversary of the date the record was made.

Sec. 1956.007. INSPECTION OF RECORDS BY PEACE OFFICER. (a) On request, a metal recycling entity [secondhand metal dealer] shall permit a peace officer of this state to inspect, during the entity's [dealer's] usual business hours:

(1) a record required by Section 1956.005; or

(2) regulated material in the entity's [dealer's] possession.

(b) The inspecting officer shall inform the entity [dealer] of the officer's status as a peace officer.

Sec. 1956.008. FURNISHING OF REPORT TO DEPARTMENT. (a) Except as provided by Subsection (b), not later than the seventh day after the date of the purchase or other acquisition of material for which a record is required under Section 1956.005, a metal recycling entity [secondhand metal dealer] shall mail to or file with the department a report containing the information required to be recorded under that section.

(b) If a metal recycling entity [secondhand metal dealer] purchases bronze material that is a cemetery vase, receptacle, memorial, or statuary or a pipe that can reasonably be identified as aluminum irrigation pipe, the entity [dealer] shall:

(1) not later than the close of business on the entity's [dealer's] first working day after the purchase date, [orally] notify the department; and

(2) not later than the fifth day after the purchase date, mail to or file with the department a report containing the information required to be recorded under Section 1956.005.

(c) Subsection (b) does not apply to a purchase from:

(1) the manufacturer or fabricator of the material or pipe;

(2) a seller bearing a bill of sale for the material or pipe; or

(3) the owner of the material or pipe.

Sec. 1956.009. PLACEMENT OF ITEMS ON HOLD. (a) A metal recycling entity may not dispose of, process, sell, or remove from the premises an item of regulated metal unless:

(1) the entity acquired the item more than 72 hours before the disposal, processing, sale, or removal; or

(2) the entity purchased the item from a manufacturing, industrial, commercial, retail, or other seller that sells regulated material in the ordinary course of its business.

(b) A peace officer who has reasonable suspicion to believe that an item of regulated material in the possession of a metal recycling entity [secondhand metal dealer] is stolen may place the item on hold by issuing to the entity [dealer] a written notice that:

(1) specifically identifies the item alleged to be stolen and subject to the hold; and

(2) informs the entity [dealer] of the requirements of Subsection (c) [(b)].

(c) [(b)] On receiving the notice, the entity [dealer] may not, except as provided by Subsection (e), process or remove from the entity's [dealer's] premises the identified item before the 60th [11th] day after the date the notice is issued unless the hold is released at an earlier time in writing by a peace officer of this state or a court order.

(d) [(c)] After the holding period expires, the entity [dealer] may dispose of the item unless disposition violates a court order.

(e) If a hold is placed on a purchase of regulated material, a metal recycling entity may not dispose of, process, sell, or remove from the premises any item from the purchased material unless the hold on the material is released.

Sec. 1956.010. PROHIBITED ACTS. A person may not, with the intent to deceive:

(1) display to a metal recycling entity [secondhand metal dealer] a false or invalid personal identification document in connection with the person's attempted sale of regulated material; [or]

(2) make a false, material statement or representation to a metal recycling entity [secondhand metal dealer] in connection with:

(A) that person's execution of a written statement required by Section 1956.004(a)(3) [1956.004(a)(1) or (2)]; or

(B) the entity's [dealer's] efforts to obtain the information required under Section 1956.005(b); or

(3) display or provide to a metal recycling entity any information required under Section 1956.004 that the person knows is false or invalid.

Sec. 1956.0105. HOURS FOR PURCHASING MATERIAL. (a) Subject to Subsection (b), a county, municipality, or political subdivision may establish the hours during which a metal recycling entity may purchase regulated material.

(b) A metal recycling entity may not purchase regulated material:

(1) more than 15 consecutive hours in one day; or

(2) later than 9 p.m.

Sec. 1956.011. CRIMINAL PENALTY. (a) A person commits an offense if the person knowingly violates Section 1956.005 or 1956.006 [this subchapter]. An [(b) Except as provided by Subsection (c), an] offense under this subsection [section] is a Class B misdemeanor unless it is shown on the trial of the offense that[.

[(c) An offense under this section is a Class A misdemeanor if] the person has previously been convicted of a violation of this subchapter, in which event the offense is a Class A misdemeanor [within the 36 months preceding the date of the offense].

(b) A person commits an offense if the person knowingly violates Section 1956.010. An offense under this subsection is a Class A misdemeanor unless it is shown on trial of the offense that the person has previously been convicted of a violation of this subchapter, in which event the offense is a state jail felony.

(c) A person commits an offense if the person knowingly buys stolen regulated material. An offense under this subsection is a Class A misdemeanor unless it is shown on trial of the offense that the person has previously been convicted under this subsection, in which event the offense is a state jail felony.

(d) A person commits an offense if the person knowingly sells stolen regulated material. An offense under this subsection is a state jail felony unless it is shown on trial of the offense that the person has previously been convicted under this subsection, in which event the offense is a third degree felony.

(e) [(d)] On the conviction of a metal recycling entity [secondhand metal dealer] for an offense punishable under Subsection (a) or (c), a court, in addition to imposing any other applicable penalty, may order that the entity [dealer] cease doing business as a metal recycling entity [secondhand metal dealer] for a period not to exceed:

(1) 30 days from the date of the order for each violation that forms the basis of the conviction for a first offense; and

(2) 180 days from the date of the order for each violation that forms the basis of the conviction if it is shown on trial of the offense that the person has previously been convicted under this section.

(f) If conduct that constitutes an offense under this section also constitutes an offense under any other law, the actor may be prosecuted under this section or the other law.

SECTION 3. The heading to Subchapter C, Chapter 1956, Occupations Code, is amended to read as follows:

SUBCHAPTER C. RESTRICTIONS ON SALE OF CERTAIN ITEMS TO METAL

RECYCLING ENTITIES

SECTION 4. The change in law made by this Act applies only to an offense committed on or after September 1, 2007. An offense committed before September 1, 2007, is governed by the law in effect when the offense was committed, and the former law is continued in effect for that purpose. For purposes of this section, an offense was committed before September 1, 2007, if any element of the offense was committed before that date.

SECTION 5. This Act takes effect September 1, 2007.