II

106TH CONGRESS

1ST SESSION S. 335

To amend chapter 30 of title 39, United States Code, to provide for the

nonmailability of certain deceptive matter relating to games of chance,

administrative procedures, orders, and civil penalties relating to such

matter, and for other purposes.

IN THE SENATE OF THE UNITED STATES

FEBRUARY 3, 1999

Ms. COLLINS (for herself, Mr. COCHRAN, Mr. LEVIN, Mr. DURBIN, and Mr.

BURNS) introduced the following bill; which was read twice and referred

to the Committee on Governmental Affairs

A BILL

To amend chapter 30 of title 39, United States Code, to

provide for the nonmailability of certain deceptive matter

relating to games of chance, administrative procedures,

orders, and civil penalties relating to such matter, and

for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 This Act may be cited as the ‘‘Deceptive Mail Preven5 tion and Enforcement Act’’.
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1 SEC. 2. RESTRICTIONS ON MAILINGS USING INFERENCES

2 TO THE UNITED STATES GOVERNMENT.

3 Section 3001 of title 39, United States Code, is

4 amended—

5 (1) in subsection (h) in the first sentence—

6 (A) by inserting after ‘‘service; and con7 tains’’ the following: ‘‘any reference to the Post8 master General of the United States or a cita9 tion to Federal statute,’’;

10 (B) by striking ‘‘connection, approval or

11 endorsement’’ and inserting ‘‘connection, ap12 proval, or endorsement, or that such matter is

13 afforded any special protections or status by the

14 Federal Government’’;

15 (C) in paragraph (2)—

16 (i) in subparagraph (A) by striking

17 ‘‘and’’ at the end;

18 (ii) in subparagraph (B) by striking

19 ‘‘or’’ at the end and inserting ‘‘and’’; and

20 (iii) by inserting after subparagraph

21 (B) the following:

22 ‘‘(C) does not contain any statement that

23 implies that Federal Government benefits or

24 services will be affected by any purchase, non25 purchase, response, or non-response to such

26 matter; or’’;
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1 (2) in subsection (i) in the first sentence—

2 (A) by inserting after ‘‘service; and con3 tains’’ the following: ‘‘any reference to the Post4 master General of the United States or a cita5 tion to Federal statute,’’;

6 (B) by striking ‘‘connection, approval or

7 endorsement’’ and inserting ‘‘connection, ap8 proval, or endorsement, or that such matter is

9 afforded any special protections or status by the

10 Federal Government’’; and

11 (C) in paragraph (2)—

12 (i) in subparagraph (A) by striking

13 ‘‘and’’ at the end;

14 (ii) in subparagraph (B) by striking

15 ‘‘or’’ at the end and inserting ‘‘and’’; and

16 (iii) by inserting after subparagraph

17 (B) the following:

18 ‘‘(C) does not contain any statement that

19 implies that Federal Government benefits or

20 services will be affected by any purchase, non21 purchase, response, or non-response to such

22 matter; or’’;

23 (3) by redesignating subsections (j) and (k) as

24 subsections (m) and (n), respectively; and
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1 (4) by inserting after subsection (i) the follow2 ing:

3 ‘‘(j)(1) Matter otherwise legally acceptable in the

4 mails described under paragraph (2)—

5 ‘‘(A) is nonmailable matter;

6 ‘‘(B) shall not be carried or delivered by mail;

7 and

8 ‘‘(C) shall be disposed of as the Postal Service

9 directs.

10 ‘‘(2) Matter that is nonmailable matter referred to

11 under paragraph (1) is any matter that—

12 ‘‘(A) constitutes a solicitation for the purchase

13 of any product that—

14 ‘‘(i) is produced by the United States Gov15 ernment; and

16 ‘‘(ii) may be obtained without cost from

17 the United States Government; and

18 ‘‘(B) does not contain a statement giving notice

19 of the information under subparagraph (A) (i) and

20 (ii).

21 ‘‘(3) The statement under paragraph (2)(B) shall be

22 clearly and prominently displayed in conspicuous and leg23 ible type in such size and manner as the Postal Service

24 shall prescribe by regulation.’’.
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1 SEC. 3. RESTRICTIONS ON SWEEPSTAKES AND DECEPTIVE

2 MAILINGS.

3 Section 3001 of title 39, United States Code, is

4 amended by inserting after subsection (j) (as added by sec5 tion 2(4) of this Act) the following:

6 ‘‘(k)(1) Matter otherwise legally acceptable in the

7 mails that is nonmailable matter described under para8 graph (2) shall not be carried or delivered by mail and

9 may be disposed of as the Postal Service directs.

10 ‘‘(2) Matter that is nonmailable matter referred to

11 under paragraph (2) is any matter that—

12 ‘‘(A) relates to a sweepstakes, prize promotion,

13 or award; and

14 ‘‘(B)(i) does not contain a statement in the

15 mailing, including any rules or order form, that no

16 purchase is necessary to enter such sweepstakes,

17 prize promotion, or award;

18 ‘‘(ii) indicates that individuals not purchasing

19 products may be disqualified from receiving future

20 mailings;

21 ‘‘(iii) requires that an entry be accompanied by

22 a payment for a product ordered;

23 ‘‘(iv) suggests that the odds of winning will be

24 increased by making a purchase;

25 ‘‘(v) represents that an individual is a winner

26 unless that individual has won a prize;
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1 ‘‘(vi) does not state all terms and conditions of

2 a sweepstakes promotion, including the rules and

3 entry procedures for the sweepstakes, in language

4 that is easy to find, read, and understand;

5 ‘‘(vii) does not clearly and conspicuously dis6 close the name of the person mailing such matter

7 and the principal place of business of such person;

8 ‘‘(viii) contains any statement that contradicts

9 or is inconsistent with contest rules, including any

10 statement qualifying, limiting, or explaining such

11 rules in a manner inconsistent with such rules;

12 ‘‘(ix) does not contain contest rules that clearly

13 state the odds of winning all prizes, the quantity, es14 timated retail value, and nature of all prizes, and

15 the schedule of any payments made over time;

16 ‘‘(x) suggests or requires that the purchase of

17 a product will allow an entry to receive priority, or

18 to be eligible to receive additional prizes or special

19 treatment for future contests;

20 ‘‘(xi) does not clearly and completely disclose

21 any fees, charges, and conditions to be met to re22 ceive the prize in any promotional mailing awarding

23 free prizes or awards;
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1 ‘‘(xii) if any facsimile check is included, does

2 not contain a statement that such checks are not ne3 gotiable instruments and have no cash value; or

4 ‘‘(xiii) does not meet any other requirement the

5 Postal Service shall prescribe by regulation.

6 ‘‘(3) Any statement, notice, or disclaimer referred to

7 under paragraph (2) shall be clearly and prominently dis8 played in conspicuous and legible type in such size and

9 manner as the Postal Service shall prescribe by regula10 tions.

11 ‘‘(4) In the enforcement of paragraph (2), the Postal

12 Service shall consider the materials included in the mailing

13 and on the material and language visible through the enve14 lope.

15 ‘‘(5)(A) Any person who uses the mails for any mat16 ter that contains sweepstakes entry materials shall adopt

17 reasonable practices and procedures to prevent the mailing

18 of such materials to any person at any address who sub19 mits a written request to the mailer of such materials that

20 such materials should not be mailed to such person at such

21 address.

22 ‘‘(B) Any person who mails such solicitation mate23 rials shall maintain or cause to be maintained a record

24 of all such requests. The records shall be maintained in

25 a form to permit the suppression of such name at such
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1 address for a 5-year period beginning on the date the writ2 ten request under subparagraph (A) is submitted.’’.

3 SEC. 4. POSTAL SERVICE ORDERS TO PROHIBIT DECEPTIVE

4 MAILINGS.

5 Section 3005(a) of title 39, United States Code, is

6 amended—

7 (1) by striking ‘‘or’’ after ‘‘(h),’’ both places it

8 appears; and

9 (2) by inserting ‘‘, (j), (k), or (l)’’ after ‘‘(i)’’

10 in both such places.

11 SEC. 5. TEMPORARY RESTRAINING ORDER FOR DECEPTIVE

12 MAILINGS.

13 Section 3007 of title 39, United States Code, is

14 amended—

15 (1) by redesignating subsection (b) as sub16 section (c); and

17 (2) by striking subsection (a) and inserting the

18 following:

19 ‘‘(a)(1) In preparation for or during the pendency of

20 proceedings under sections 3005 and 3006, the Postal

21 Service, in accordance with section 409(d), may apply to

22 the district court in any district in which mail is sent or

23 received as part of the alleged scheme, device, lottery, or

24 gift enterprise or in any district in which the defendant

25 is found, for a temporary restraining order and prelimi-
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1 nary injunction under rule 65 of the Federal Rules of Civil

2 Procedure.

3 ‘‘(2) Upon a showing of probable cause and without

4 any further showing, the court shall enter an order which

5 shall—

6 ‘‘(A) remain in effect during pendency of the

7 statutory proceedings, any judicial review of such

8 proceedings, or any action to enforce orders issued

9 under the proceedings; and

10 ‘‘(B) direct the detention by the postmaster, in

11 any and all districts, of the defendant’s incoming

12 mail and outgoing mail, in furtherance of the

13 scheme which is in the postmaster’s custody for dis14 patch or delivery.

15 ‘‘(3) Mail detained under paragraph (2) shall—

16 ‘‘(A) be made available at the post office of

17 mailing or delivery for examination by the defendant

18 in the presence of a postal employee; and

19 ‘‘(B) be delivered as addressed if such mail is

20 clearly not connected with the alleged unlawful activ21 ity.

22 ‘‘(4) No finding of the defendant’s intent to make a

23 false representation or to conduct a lottery is required to

24 support the issuance of an order under this section.
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1 ‘‘(b) If any order is issued under subsection (a) and

2 the proceedings under section 3005 or 3006 are concluded

3 with the issuance of an order under that section, any judi4 cial review of the matter shall be in the district in which

5 the order under subsection (a) was issued.’’.

6 SEC. 6. CIVIL PENALTIES.

7 Section 3012 of title 39, United States Code, is

8 amended—

9 (1) in subsection (a) by striking ‘‘$10,000 for

10 each day that such person engages in conduct de11 scribed by paragraph (1), (2), or (3) of this sub12 section.’’ and inserting ‘‘twice the amount of the

13 civil penalty under subsection (b)(2) for the applica14 ble pieces mailed.’’;

15 (2) by redesignating subsections (b), (c), and

16 (d), as subsections (c), (d), and (e), respectively; and

17 (3) by inserting after subsection (a) the follow18 ing:

19 ‘‘(b)(1) Any person who, through use of the mail,

20 sends any matter which is nonmailable under sections

21 3001 (a) through (l), 3005(a), 3014, or 3015 of this title,

22 shall be liable to the United States for a civil penalty in

23 accordance with regulations the Postal Service shall pre24 scribe.
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1 ‘‘(2) The civil penalty under this subsection shall not

2 exceed $50,000 for each mailing of less than 50,000

3 pieces; $100,000 for each mailing of 50,000 to 100,000

4 pieces; with an additional $10,000 for each additional

5 10,000 pieces above 100,000, not to exceed $2,000,000.’’;

6 (4) in subsection (c)(1) and (2), as redesig7 nated, by inserting after ‘‘of subsection (a)’’ the fol8 lowing: ‘‘or (b),’’; and

9 (5) in subsection (d), as redesignated, by strik10 ing ‘‘Treasury of the United States’’ and inserting

11 ‘‘Postal Service Fund established by section 2003’’.

12 SEC. 7. ADDITIONAL AUTHORITY FOR THE POSTAL INSPEC13 TION SERVICE.

14 (a) IN GENERAL.—Chapter 30 of title 39, United

15 States Code, is amended by adding at the end the follow16 ing:

17 ‘‘§ 3016. Administrative subpoenas

18 ‘‘(a) AUTHORIZATION OF USE OF SUBPOENAS BY

19 POSTMASTER GENERAL.—In any investigation conducted

20 under this chapter, the Postmaster General may require

21 by subpoena the production of any records (including

22 books, papers, documents, and other tangible things which

23 constitute or contain evidence) which the Postmaster Gen24 eral finds relevant or material to the investigation.

25 ‘‘(b) SERVICE.—
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1 ‘‘(1) SERVICE WITHIN THE UNITED STATES.—

2 A subpoena issued under this section may be served

3 by a person designated under section 3061 of title

4 18 at any place within the territorial jurisdiction of

5 any court of the United States.

6 ‘‘(2) FOREIGN SERVICE.—Any such subpoena

7 may be served upon any person who is not to be

8 found within the territorial jurisdiction of any court

9 of the United States, in such manner as the Federal

10 Rules of Civil Procedure prescribe for service in a

11 foreign country. To the extent that the courts of the

12 United States may assert jurisdiction over such per13 son consistent with due process, the United States

14 District Court for the District of Columbia shall

15 have the same jurisdiction to take any action re16 specting compliance with this section by such person

17 that such court would have if such person were per18 sonally within the jurisdiction of such court.

19 ‘‘(3) SERVICE ON BUSINESS PERSONS.—Service

20 of any such subpoena may be made by a Postal In21 spector upon a partnership, corporation, association,

22 or other legal entity by—

23 ‘‘(A) delivering a duly executed copy there24 of to any partner, executive officer, managing

25 agent, or general agent thereof, or to any agent
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1 thereof authorized by appointment or by law to

2 receive service of process on behalf of such

3 partnership, corporation, association, or entity;

4 ‘‘(B) delivering a duly executed copy there5 of to the principal office or place of business of

6 the partnership, corporation, association, or en7 tity; or

8 ‘‘(C) depositing such copy in the United

9 States mails, by registered or certified mail, re10 turn receipt requested, duly addressed to such

11 partnership, corporation, association, or entity

12 at its principal office or place of business.

13 ‘‘(4) SERVICE ON NATURAL PERSONS.—Service

14 of any subpoena may be made upon any natural per15 son by—

16 ‘‘(A) delivering a duly executed copy to the

17 person to be served; or

18 ‘‘(B) depositing such copy in the United

19 States mails by registered or certified mail, re20 turn receipt requested, duly addressed to such

21 person at his residence or principal office or

22 place of business.

23 ‘‘(5) VERIFIED RETURN.—A verified return by

24 the individual serving any such subpoena setting

25 forth the matter of such service shall be proof of
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1 such service. In the case of service by registered or

2 certified mail, such return shall be accompanied by

3 the return post office receipt of delivery of such sub4 poena.

5 ‘‘(c) ENFORCEMENT.—

6 ‘‘(1) IN GENERAL.—Whenever any person, part7 nership, corporation, association, or entity fails to

8 comply with any subpoena duly served upon him, the

9 Postmaster General may request that the Attorney

10 General seek enforcement of the subpoena in the dis11 trict court of the United States for any judicial dis12 trict in which such person resides, is found, or

13 transacts business, and serve upon such person a pe14 tition for an order of such court for the enforcement

15 of this section.

16 ‘‘(2) JURISDICTION.—Whenever any petition is

17 filed in any district court of the United States under

18 this section, such court shall have jurisdiction to

19 hear and determine the matter so presented, and to

20 enter such order or orders as may be required to

21 carry into effect the provisions of this section. Any

22 final order entered shall be subject to appeal under

23 section 1291 of title 28. Any disobedience of any

24 final order entered under this section by any court

25 shall be punished as contempt.
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1 ‘‘(d) DISCLOSURE.—Any documentary material pro2 vided pursuant to any subpoena issued under this section

3 shall be exempt from disclosure under section 552 of title

4 5.’’.

5 (b) REGULATIONS.—Not later than 180 days after

6 the date of enactment of this section, the Postal Service

7 shall promulgate regulations setting out the procedures

8 the Postal Service will use to implement this subsection.

9 (c) TECHNICAL AND CONFORMING AMENDMENT.—

10 The table of sections for chapter 30 of title 39, United

11 States Code, is amended by adding at the end the follow12 ing:

‘‘3016. Administrative subpoenas.’’.

13 SEC. 8. STATE LAW NOT PREEMPTED.

14 Nothing in this Act shall be construed to preempt any

15 provision of State or local law.

16 SEC. 9. EFFECTIVE DATE.

17 This Act shall take effect 60 days after the date of

18 enactment of this Act.

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