39 U.S.C. § 3012 — Civil penalties

Page 77 TITLE 39—POSTAL SERVICE § 3012 ‘‘(4) that such use of the mail reduces the ability of responsible parents to protect their minor children from exposure to material which they as parents be- lieve to be harmful to the normal and healthy eth- ical, mental, and social development of their chil- dren; and ‘‘(5) that the traffic in such offensive advertise- ments is so large that individual citizens will be help- less to protect their privacy or their families without stronger and more effective Federal controls over the mailing of such matter. ‘‘(b) [Congressional Determination of Public Policy] On the basis of such findings, the Congress determines that it is contrary to the public policy of the United States for the facilities and services of the United States Post- al Service to be used for the distribution of such mate- rials to persons who do not want their privacy invaded in this manner or to persons who wish to protect their minor children from exposure to such material.’’ [Provisions of section 14 of Pub. L. 91–375 effective within 1 year after Aug. 12, 1970, on date established therefor by the Board of Governors and published by it in the Federal Register, see section 15(a) of Pub. L. 91–375, set out as an Effective Date not preceding sec- tion 101 of this title.] § 3011. Judicial enforcement (a) Whenever the Postal Service believes that any person is mailing or causing to be mailed any sexually oriented advertisement in viola- tion of section 3010 of this title, it may request the Attorney General to commence a civil ac- tion against such person in a district court of the United States. Upon a finding by the court of a violation of that section, the court may issue an order including one or more of the fol- lowing provisions as the court deems just under the circumstances: (1) a direction to the defendant to refrain from mailing any sexually oriented advertise- ment to a specific addressee, to any group of addressees, or to all persons; (2) a direction to any postmaster to whom sexually oriented advertisements originating with such defendant are tendered for trans- mission through the mails to refuse to accept such advertisements for mailing; or (3) a direction to any postmaster at the of- fice at which registered or certified letters or other letters or mail arrive, addressed to the defendant or his representative, to return the registered or certified letters or other letters or mail to the sender appropriately marked as being in response to mail in violation of sec- tion 3010 of this title, after the defendant, or his representative, has been notified and given reasonable opportunity to examine such let- ters or mail and to obtain delivery of mail which is clearly not connected with activity alleged to be in violation of section 3010 of this title. (b) The statement that remittances may be made to a person named in a sexually oriented advertisement is prima facie evidence that such named person is the principal, agent, or rep- resentative of the mailer for the receipt of re- mittances on his behalf. The court is not pre- cluded from ascertaining the existence of the agency on the basis of any other evidence. (c) In preparation for, or during the pendency of, a civil action under subsection (a) of this sec- tion, a district court of the United States, upon application therefor by the Attorney General and upon a showing of probable cause to believe the statute is being violated, may enter a tem- porary restraining order or preliminary injunc- tion containing such terms as the court deems just, including, but not limited to, provisions enjoining the defendant from mailing any sexu- ally oriented advertisement to any person or class of persons, directing any postmaster to refuse to accept such defendant’s sexually ori- ented advertisements for mailing, and directing the detention of the defendant’s incoming mail by any postmaster pending the conclusion of the judicial proceedings. Any action taken by a court under this subsection does not affect or determine any fact at issue in any other pro- ceeding under this section. (d) A civil action under this section may be brought in the judicial district in which the de- fendant resides, or has his principal place of business, or in any judicial district in which any sexually oriented advertisement mailed in viola- tion of section 3010 has been delivered by mail according to the direction thereon. (e) Nothing in this section or in section 3010 shall be construed as amending, preempting, limiting, modifying, or otherwise in any way af- fecting section 1461 or 1463 of title 18 or section 3007 or 3008 of this title. (Pub. L. 91–375, Aug. 12, 1970, 84 Stat. 750; Pub. L. 106–168, title I, § 105(b)(2)(B), Dec. 12, 1999, 113 Stat. 1811.) Editorial Notes AMENDMENTS 1999—Subsec. (e). Pub. L. 106–168 substituted ‘‘3007’’ for ‘‘3006, 3007,’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1999 AMENDMENT Amendment by Pub. L. 106–168 effective 120 days after Dec. 12, 1999, see section 111 of Pub. L. 106–168, set out as a note under section 3001 of this title. EFFECTIVE DATE Section effective first day of sixth month which be- gins after Aug. 12, 1970, see section 15(b) of Pub. L. 91–375, set out as a note preceding section 101 of this title. § 3012. Civil penalties (a) Any person— (1) who, through the use of the mail, evades or attempts to evade the effect of an order issued under section 3005(a)(1) or 3005(a)(2) of this title; (2) who fails to comply with an order issued under section 3005(a)(3) of this title; or (3) who (other than a publisher described by section 3007(b) of this title) has actual knowl- edge of any such order, is in privity with any person described by paragraph (1) or (2) of this subsection, and engages in conduct to assist any such person to evade, attempt to evade, or fail to comply with any such order, as the case may be, through the use of the mail; shall be liable to the United States for a civil penalty in an amount not to exceed $50,000 for each mailing of less than 50,000 pieces; $100,000 for each mailing of 50,000 to 100,000 pieces; with Page 78 TITLE 39—POSTAL SERVICE § 3013 an additional $10,000 for each additional 10,000 pieces above 100,000, not to exceed $2,000,000. A separate penalty may be assessed under this sub- section with respect to the conduct described in each such paragraph. (b)(1) Whenever, on the basis of any informa- tion available to it, the Postal Service finds that any person has engaged, or is engaging, in conduct described by paragraph (1), (2), or (3) of subsection (a), (c), or (d), the Postal Service may, under the provisions of section 409(d) of this title, commence a civil action to enforce the civil penalties established by such sub- section. Any such action shall be brought in the district court of the United States for the dis- trict in which the defendant resides or receives mail. (2) If the district court determines that a per- son has engaged, or is engaging, in conduct de- scribed by paragraph (1), (2), or (3) of subsection (a), (c), or (d), the court shall determine the civil penalty, if any under this section, taking into account the nature, circumstances, extent, and gravity of the violation or violations of such subsection, and, with respect to the violator, the ability to pay the penalty, the effect of the pen- alty on the ability of the violator to conduct lawful business, any history of prior violations of such subsection, the degree of culpability, and such other matters as justice may require. (c)(1) In any proceeding in which the Postal Service may issue an order under section 3005(a), the Postal Service may in lieu of that order or as part of that order assess civil penalties in an amount not to exceed $25,000 for each mailing of less than 50,000 pieces; $50,000 for each mailing of 50,000 to 100,000 pieces; with an additional $5,000 for each additional 10,000 pieces above 100,000, not to exceed $1,000,000. (2) In any proceeding in which the Postal Serv- ice assesses penalties under this subsection the Postal Service shall determine the civil penalty taking into account the nature, circumstances, extent, and gravity of the violation or violations of section 3005(a), and with respect to the viola- tor, the ability to pay the penalty, the effect of the penalty on the ability of the violator to con- duct lawful business, any history of prior viola- tions of such section, the degree of culpability and other such matters as justice may require. (d) Any person who violates section 3001(l) shall be liable to the United States for a civil penalty not to exceed $10,000 for each mailing to an individual. (e) All penalties collected under authority of this section shall be paid into the Treasury of the United States. (f) In any proceeding at any time under this section, the defendant shall be entitled as a de- fense or counterclaim to seek judicial review, if not already had, pursuant to chapter 7 of title 5, of the order issued under section 3005 of this title. However, nothing in this section shall be construed to preclude independent judicial re- view otherwise available pursuant to chapter 7 of title 5 of an order issued under section 3005 of this title. (Added Pub. L. 98–186, § 3(a), Nov. 30, 1983, 97 Stat. 1316; amended Pub. L. 106–168, title I, § 106, Dec. 12, 1999, 113 Stat. 1811.) Editorial Notes AMENDMENTS 1999—Subsec. (a). Pub. L. 106–168, § 106(1), in con- cluding provisions, substituted ‘‘$50,000 for each mail- ing of less than 50,000 pieces; $100,000 for each mailing of 50,000 to 100,000 pieces; with an additional $10,000 for each additional 10,000 pieces above 100,000, not to exceed $2,000,000’’ for ‘‘$10,000 for each day that such person en- gages in conduct described by paragraph (1), (2), or (3) of this subsection’’. Subsec. (b)(1), (2). Pub. L. 106–168, § 106(2), inserted ‘‘, (c), or (d)’’ after ‘‘of subsection (a)’’. Subsecs. (c) to (f). Pub. L. 106–168, § 106(3), (4), added subsecs. (c) and (d) and redesignated former subsecs. (c) and (d) as (e) and (f), respectively. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1999 AMENDMENT Amendment by Pub. L. 106–168 effective 120 days after Dec. 12, 1999, see section 111 of Pub. L. 106–168, set out as a note under section 3001 of this title. EFFECTIVE DATE Pub. L. 98–186, § 3(b), Nov. 30, 1983, 97 Stat. 1317, pro- vided that: ‘‘Section 3012 of title 39, United States Code (as added by subsection (a) of this section) shall apply with respect to conduct which occurs on or after the date of the enactment of this Act [Nov. 30, 1983].’’ § 3013. Semiannual reports on investigative ac- tivities of the Postal Service The Postmaster General shall submit semi- annual reports to the Inspector General summa- rizing the investigative activities of the Postal Service. One semiannual report shall be sub- mitted for the reporting period beginning on Oc- tober 1 and ending on March 31, and the other semiannual report shall be submitted for the re- porting period beginning on April 1 and ending on September 30. Each such report shall be sub- mitted within 1 month (or such shorter length of time as the Inspector General may specify) after the close of the reporting period involved and shall include with respect to such reporting pe- riod— (1) a summary of any proceedings instituted under section 3005 of this title, and the results of those and of any other such proceedings de- cided, settled, or otherwise concluded during such period; (2) the number of cases in which the author- ity described in section 3005(e) of this title was used; (3) the number of applications for temporary restraining orders or preliminary injunctions submitted under section 3007 of this title and, of those applications, the number granted; (4) the total amount of expenditures and ob- ligations incurred in carrying out the inves- tigative activities of the Postal Service; (5) the number of cases in which the author- ity described in section 3016 was used, and a comprehensive statement describing how that authority was used in each of those cases; and (6) such other information relating to the in- vestigative activities of the Postal Service as the Inspector General may require. The information in a report submitted under this section to the Inspector General with re- spect to a reporting period shall be included as part of the semiannual report prepared by the