Federal Register / Vol. 5, No. 11 / Tuesday, January 18, 2000 / Notices 2663

12 17 CFR 200.30–3(a)(12).

III. Date of Effectiveness of the

Proposed Rule Change and Timing for

Commission Action

Within 35 days of the date of

publication of this notice in the Federal

Register or within such longer period (i)

as the Commission may designate up to

90 days of such date if it finds such

longer period to be appropriate and

publishes its reasons for so finding or

(ii) as to which the self-regulatory

organization consents, the Commission

will:

(A) by order approve such proposed

rule change, or

(B) institute proceedings to determine

whether the proposed rule change

should be disapproved.

IV. Solicitation of Comments

Interested persons are invited to

submit written data, views, and

arguments concerning the foregoing,

including whether the proposed rule is

consistent with the Act. Persons making

written submissions should file six

copies thereof with the Secretary,

Securities and Exchange Commission,

450 Fifth Street, N.W., Washington, DC

20549–0609. Copies of the submission,

all subsequent amendments, all written

statements with respect to the proposed

rule change that are filed with the

Commission, and all written

communications relating to the

proposed rule change between the

Commission and any person, other than

those that may be withheld from the

public in accordance with the

provisions of 5 U.S.C 552, will be

available for inspection and copying in

the Commission’s Public Reference

Room. Copies of such filing will also be

available for inspection and copying at

the principal office of the NASD. All

submissions should refer to File No.

SR–NASD–99–60 and should be

submitted by February 8, 2000.

For the Commission, by the Division of

Market Regulations, pursuant to delegated

authority.12

Margaret H. McFarland,

Deputy Secretary.

[FR Doc. 00–995 Filed 1–14–00; 8:45 am]

BILLING CODE 8010–01–M

UNITED STATES SENTENCING

COMMISSION

Sentencing Guidelines for United

States Courts

AGENCY: United States Sentencing

Commission.

ACTION: Notice of proposed permanent

amendments to the sentencing

guidelines, policy statements, and

commentary. Request for comment.

Notice of public hearing.

SUMMARY: The Commission hereby gives

notice of the following actions: (1) Two

options for amending § 2D1.1 (Unlawful

Manufacturing, Importing, Exporting,

Trafficking, or Possession) to increase

the penalties for methamphetamine

offenses in response to the increased

mandatory minimum penalties made by

the Methamphetamine Trafficking

Penalty Enhancement Act of 1998, Pub.

L. 105–277; and (2) two options for

amending § 2F1.1 (Fraud and Deceit) to

implement the directive in the Identity

Theft and Assumption Deterrence Act of

1998, Pub. L. 105–318.

The proposed amendments are

presented in one of two formats. First,

the amendments are proposed as

specific revisions to the relevant

guidelines and accompanying

commentary. Bracketed text within a

proposed amendment indicates that the

Commission invites comment and

suggestions for alternative policy

choices; for example, a proposed

enhancement of [2] levels indicates that

the Commission is considering, and

invites comment on, alternative policy

choices regarding the appropriate level

of enhancement. Second, the

Commission has highlighted certain

issues for comment and invites

suggestions for how the Commission

should respond to those issues.

DATES: (1) Proposed amendments.—

Comment on the proposed amendments

and issues for comment should be

received by the Commission not later

than March 10, 2000. (2) Public

hearing.—The Commission has

scheduled a public hearing for March

23, 2000, at the Thurgood Marshall

Federal Judiciary Building, One

Columbus Circle, N.E. Washington, D.C.

20002–8002 (time to be announced).

The scope of the hearing is expected to

include all permanent amendments that

are proposed for action in this

amendment cycle ending May 1, 2000,

including the proposed re-promulgation

of the temporary, emergency

telemarketing fraud amendment

described in 64 FR 72129 (1999). A

person who desires to testify at the

public hearing should notify Michael

Courlander, Public Affairs Officer, at

(202) 502–4590 not later than March 10,

2000. Written testimony for the hearing

must be received by the Commission not

later than March 16, 2000. Submission

of written testimony is a requirement for

testifying at the public hearing.

ADDRESSES: Send comments to: United

States Sentencing Commission, One

Columbus Circle, NE, Suite 2–500

South, Washington, DC 20002–8002,

Attention: Public Information-Public

Comment.

FOR FURTHER INFORMATION CONTACT:

Michael Courlander, Public Affairs

Officer, Telephone: (202) 502–4590.

SUPPLEMENTARY INFORMATION: Reports

and other additional information

pertaining to the proposed amendments

described in this notice may be accessed

through the Commission’s website at

www.ussc.gov.

Authority: 28 U.S.C. 994(a), (o), (p), (x);

USSC Rules of Practice and Procedure 4.3,

4.4.

Diana E. Murphy,

Chair.

Proposed Amendment:

Methamphetamine

(1) Synopsis of Proposed Amendment:

This proposed amendment responds to

the Methamphetamine Trafficking

Penalty Enhancement Act of 1998, Pub.

L. 105–277. That Act effectively

increased the mandatory minimum

sentences for methamphetamine

trafficking offenses by cutting in half the

quantities of methamphetamine mixture

and methamphetamine substance (i.e.,

methamphetamine-actual) necessary to

trigger the five-and ten-year mandatory

minimum statutory penalties applicable

to methamphetamine trafficking

offenses. Under 21 U.S.C.

841(b)(1)(B)(viii), as amended by the

Act, the 5-year mandatory minimum is

triggered if the offense involves 5 grams

or more of methamphetamine-actual or

50 grams or more of methamphetaminemixture. Under 21 U.S.C.

841(b)(1)(A)(viii), as amended by the

Act, the 10-year mandatory minimum is

triggered if the offense involves 50

grams or more of methamphetamineactual or 500 grams or more of

methamphetamine-mixture. This

proposed amendment presents two

options for changes to the guideline for

drug trafficking, § 2D1.1, particularly

the Drug Quantity Table, that would

respond to the Act.

Option 1 changes the calculations in

the Drug Quantity Table in § 2D1.1 for

methamphetamine substance (i.e.,

methamphetamine-actual) and ‘‘Ice’’

(i.e., d-methamphetamine hydrochloride

of at least 80% purity) to conform the

quantities for those drugs to the

quantities that now trigger the statutory

5- and 10-year mandatory minimums.

Option 2 generally proposes to

eliminate the distinction between

methamphetamine-actual and

2664 Federal Register / Vol. 5, No. 11 / Tuesday, January 18, 2000 / Notices

methamphetamine-mixture and

generally sentence all

methamphetamine offenses based on the

weight of pure methamphetamine.

There are two exceptions to this general

rule. The first exception would continue

the guideline presumption that ‘‘Ice’’

methamphetamine is 100 percent pure,

even though in reality it is typically

only 80–90 percent pure. Thus, if the

offense involved ‘‘Ice’’, the weight of the

entire ‘‘Ice’’ mixture would be used. The

second exception would address the

situation in which the purity of the

methamphetamine-mixture in a given

case may not always be known or

readily determinable. To handle the

contingency of unknown purity, the

guidelines could establish a

presumptive purity of, perhaps, 50

percent to be used only when purity is

unknown.

An issue for comment follows the

presentation of the options regarding

whether the Commission should

consider making changes to the Drug

Equivalency Table in § 2D1.1, relating to

Phenylacetone/P2P, when possessed for

the purpose of manufacturing

methamphetamine, and whether it

should change the Chemical Quantity

Table in § 2D1.11, relating to any

chemical referenced in that table that is

used to manufacture methamphetamine,

in order to reflect the increased harm

associated with methamphetamine

offenses.

Proposed Amendment—Option 1

Section 2D1.1(c)(1) is amended by

striking ‘‘3 KG or more’’ before ‘‘of

Methamphetamine (actual)’’ and

inserting ‘‘1.5 KG or more’’ and by

striking ‘‘3 KG or more’’ before ‘‘of

‘Ice’ ’’ and inserting ‘‘1.5 KG or more’’.

Section 2D1.1(c)(2) is amended by

striking ‘‘at least 1 KG but less than 3

KG’’ before ‘‘of Methamphetamine

(actual)’’ and inserting ‘‘at least 500 G

but less than 1.5 KG’’ and by striking ‘‘at

least 1 KG but less than 3 KG’’ before

‘‘of ‘Ice’ ’’ and inserting ‘‘at least 500 G

but less than 1.5 KG’’.

Section 2D1.1(c)(3) is amended by

striking ‘‘at least 300 G but less than 1

KG’’ before ‘‘of Methamphetamine

(actual)’’ and inserting ‘‘at least 150 G

but less than 500 G’’ and by striking ‘‘at

least 300 G but less than 1 KG’’ before

‘‘of ‘Ice’ ’’ and inserting ‘‘at least 150 G

but less than 500 G’’.

Section 2D1.1(c)(4) is amended by

striking ‘‘at least 100 G but less than 300

G’’ before ‘‘of Methamphetamine

(actual)’’ and inserting ‘‘at least 50 G but

less than 150 G’’ and by striking ‘‘at

least 100 G but less than 300 G’’ before

‘‘of ‘Ice’ ’’ and inserting ‘‘at least 50 G

but less than 150 G’’.

Section 2D1.1(c)(5) is amended by

striking ‘‘at least 70 G but less than 100

G’’ before ‘‘of Methamphetamine

(actual)’’ and inserting ‘‘at least 35 G but

less than 50 G’’ and by striking ‘‘at least

70 G but less than 100 G’’ before ‘‘of

‘Ice’ ’’ and inserting ‘‘at least 35 G but

less than 50 G’’.

Section 2D1.1(c)(6) is amended by

striking ‘‘at least 40 G but less than 70

G’’ before ‘‘of Methamphetamine

(actual)’’ and inserting ‘‘at least 20 G but

less than 35 G’’ and by striking ‘‘at least

40 G but less than 70 G’’ before ‘‘of

‘Ice’ ’’ and inserting ‘‘at least 20 G but

less than 35 G’’.

Section 2D1.1(c)(7) is amended by

striking ‘‘at least 10 G but less than 40

G’’ before ‘‘of Methamphetamine

(actual)’’ and inserting ‘‘at least 5 G but

less than 20 G’’ and by striking ‘‘at least

10 G but less than 40 G’’ before ‘‘of

‘Ice’ ’’ and inserting ‘‘at least 5 G but less

than 20 G’’.

Section 2D1.1(c)(8) is amended by

striking ‘‘at least 8 G but less than 10 G’’

before ‘‘of Methamphetamine (actual)’’

and inserting ‘‘at least 4 G but less than

5 G’’ and by striking ‘‘at least 8 G but

less than 10 G’’ before ‘‘of ‘Ice’ ’’ and

inserting ‘‘at least 4 G but less than 5

G’’.

Section 2D1.1(c)(9) is amended by

striking ‘‘at least 6 G but less than 8 G’’

before ‘‘of Methamphetamine (actual)’’

and inserting ‘‘at least 3 G but less than

4 G’’; and by striking ‘‘at least 6 G but

less than 8 G’’ before ‘‘of ‘Ice’ ’’ and

inserting ‘‘at least 3 G but less than 4

G’’.

Section 2D1.1(c)(10) is amended by

striking ‘‘at least 4 G but less than 6 G’’

before ‘‘of Methamphetamine (actual)’’

and inserting ‘‘at least 2 G but less than

3 G’’ and by striking ‘‘at least 4 G but

less than 6 G’’ before ‘‘of ‘Ice’ ’’ and

inserting ‘‘at least 2 G but less than 3

G’’.

Section 2D1.1(c)(11) is amended by

striking ‘‘at least 2 G but less than 4 G’’

before ‘‘of Methamphetamine (actual)’’

and inserting ‘‘at least 1 G but less than

2 G’’; and by striking ‘‘at least 2 G but

less than 4 G’’ before ‘‘of ‘Ice’ ’’ and

inserting ‘‘at least 1 G but less than 2

G’’.

Section 2D1.1(c)(12) is amended by

striking ‘‘at least 1 G but less than 2 G’’

before ‘‘of Methamphetamine (actual)’’

and inserting ‘‘at least 500 MG but less

than 1 G’’; and by striking ‘‘at least 1 G

but less than 2 G’’ before ‘‘of ‘‘Ice’’ and

inserting ‘‘at least 500 MG but less than

1 G’’.

Section 2D1.1(c)(13) is amended by

striking ‘‘at least 500 MG but less than

1 G’’ before ‘‘of Methamphetamine

(actual)’’ and inserting ‘‘at least 250 MG

but less than 500 MG’’; and by striking

‘‘at least 500 MG but less than 1 G’’

before ‘‘of ‘Ice’’ ’ and inserting ‘‘at least

250 MG but less than 500 MG’’.

Section 2D1.1(c)(14) is amended by

striking ‘‘less than 500 MG’’ before ‘‘of

Methamphetamine (actual)’’ and

inserting ‘‘less than 250 MG’’; and by

striking ‘‘less than 500 MG’’ before ‘‘of

‘Ice’’ ’ and inserting ‘‘less than 250 MG’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended in

Note 10 in the subdivision of the ‘‘Drug

Equivalency Tables’’ captioned

‘‘Cocaine and Other Schedule I and II

Stimulants (and their immediate

precursors)’’ in the line referenced to

‘‘Methamphetamine (Actual)’’ by

striking ‘‘10 kg’’ and inserting ‘‘20 kg’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended in

Note 10 in the subdivision of the ‘‘Drug

Equivalency Tables’’ captioned

‘‘Cocaine and Other Schedule I and II

Stimulants (and their immediate

precursors)’’ in the line referenced to

‘‘Ice’’ by striking ‘‘10 kg’’ and inserting

‘‘20 kg’’.

Option 2

Section 2D1.1(c)(1) is amended by

striking the line referenced to

‘‘Methamphetamine’’ in its entirety and

inserting:

‘‘1.5 KG or more of

Methamphetamine, or 1.5 KG or more of

‘Ice’;’’.

Section 2D1.1(c)(2) is amended by

striking the line referenced to

‘‘Methamphetamine’’ in its entirety and

inserting:

‘‘At least 500 G but less than 1.5 KG

of Methamphetamine, or at least 500 G

but less than 1.5 KG of ‘Ice’;’’.

Section 2D1.1(c)(3) is amended by

striking the line referenced to

‘‘Methamphetamine’’ in its entirety and

inserting:

‘‘At least 150 G but less than 500 G

of Methamphetamine, or at least 150 G

but less than 500 G of ‘Ice’;’’.

Section 2D1.1(c)(4) is amended by

striking the line referenced to

‘‘Methamphetamine’’ in its entirety and

inserting:

‘‘At least 50 G but less than 150 G of

Methamphetamine, or at least 50 G but

less than 150 G of ‘Ice’;’’.

Section 2D1.1(c)(5) is amended by

striking the line referenced to

‘‘Methamphetamine’’ in its entirety and

inserting:

‘‘At least 35 G but less than 50 G of

Methamphetamine, or at least 35 G but

less than 50 G of ‘Ice’ ’’

Section 2D1.1(c)(6) is amended by

striking the line referenced to

‘‘Methamphetamine’’ in its entirety and

inserting:

Federal Register / Vol. 5, No. 11 / Tuesday, January 18, 2000 / Notices 2665

‘‘At least 20 G but less than 35 G of

Methamphetamine, or at least 20 G but

less than 35 G of ‘Ice’ ’’.

Section 2D1.1(c)(7) is amended by

striking the line referenced to

‘‘Methamphetamine’’ in its entirety and

inserting:

‘‘At least 5 G but less than 20 G of

Methamphetamine, or at least 5 G but

less than 20 G of ‘Ice’;’’.

Section 2D1.1(c)(8) is amended by

striking the line referenced to

‘‘Methamphetamine’’ in its entirety and

inserting:

‘‘At least 4 G but less than 5 G of

Methamphetamine, or at least 4 G but

less than 5 G of ‘Ice‘Ice’;’’.

Section 2D1.1(c)(9) is amended by

striking the line referenced to

‘‘Methamphetamine’’ in its entirety and

inserting:

‘‘At least 3 G but less than 4 G of

Methamphetamine, or at least 3 G but

less than 4 G of ‘Ice’’’;.

Section 2D1.1(c)(10) is amended by

striking the line referenced to

‘‘Methamphetamine’’ in its entirety and

inserting:

‘‘At least 2 G but less than 3 G of

Methamphetamine, or at least 2 G but

less than 3 G of ‘Ice‘Ice’;’’.

Section 2D1.1(c)(11) is amended by

striking the line referenced to

‘‘Methamphetamine’’ in its entirety and

inserting:

‘‘At least 1 G but less than 2 G of

Methamphetamine, or at least 1 G but

less than 2 G of ‘Ice‘Ice’;’’.

Section 2D1.1(c)(12) is amended by

striking the line referenced to

‘‘Methamphetamine’’ in its entirety and

inserting:

‘‘At least 500 MG but less than 1 G of

Methamphetamine, or at least 500 MG

but less than 1 G of ‘Ice‘Ice’;’’.

Section 2D1.1(c)(13) is amended by

striking the line referenced to

‘‘Methamphetamine’’ in its entirety and

inserting:

‘‘At least 250 MG but less than 500

MG of Methamphetamine, or at least

250 MG but less than 500 MG of

‘‘Ice‘Ice’;’’.

Section 2D1.1(c)(14) is amended by

striking the line referenced to

‘‘Methamphetamine’’ in its entirety and

inserting:

‘‘Less than 250 MG of

Methamphetamine, or less than 250 MG

of ‘‘Ice’’’.

Subsection 2D1.1(c) is amended in the

part captioned ‘‘Notes to the Drug

Quantity Table’’ in Note (B) in the first

sentence by striking ‘‘and

‘‘Methamphetamine (actual)’ ’’; by

striking ‘‘refer’’ and inserting ‘‘refers’’;

and by striking ’’, itself,’’; and in the

third sentence by striking ‘‘or

methamphetamine’’; and by striking ‘‘or

methamphetamine (actual)’’.

Subsection 2D1.1(c) is amended in the

part captioned ‘‘Notes to the Drug

Quantity Table’’ by redesignating Notes

(C) through (J), as Notes (D) through (K),

respectively; and by inserting after Note

(B) the following new Note (C):

‘‘(C) The term ‘Methamphetamine’

refers to the weight of the controlled

substance contained in the mixture or

substance. For example, a mixture

weighing 10 grams containing

Methamphetamine at 50% purity

contains 5 grams of Methamphetamine.

In any case in which the purity of the

Methamphetamine contained in a

mixture or substance is not known, it

shall be presumed that the purity of the

mixture or substance is

[10%][20%][30%][40%][50%]. To

calculate the quantity used to determine

the offense level, multiply the entire

weight of the mixture or substance by

[10%][20%][30%][40%][50%]. The

resulting quantity shall be used to

determine the offense level.’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended in

Note 10 in the subdivision of the ‘‘Drug

Equivalency Tables’’ captioned

‘‘Cocaine and Other Schedule I and II

Stimulants (and their immediate

precursors)’’ by striking the line

referenced to ‘‘Methamphetamine’’ in its

entirety.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended in

Note 10 in the subdivision of the ‘‘Drug

Equivalency Tables’’ captioned

‘‘Cocaine and Other Schedule I and II

Stimulants (and their immediate

precursors)’’ in the line referenced to

‘‘Methamphetamine (Actual)’’ by

striking ‘‘(Actual)’’; and by striking ‘‘10

kg’’ and inserting ‘‘20 kg’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended in

Note 10 in the subdivision of the ‘‘Drug

Equivalency Tables’’ captioned

‘‘Cocaine and Other Schedule I and II

Stimulants (and their immediate

precursors)’’ in the line referenced to

‘‘Ice’’ by striking ‘‘10 kg’’ and inserting

‘‘20 kg’’.

Issue for Comment: The Commission

invites comment on whether it should

change the Drug Equivalency Table in

§ 2D1.1, relating to Phenylacetone/P2P,

when possessed for the purpose of

manufacturing Methamphetamine, and

whether it should change the Chemical

Quantity Table in § 2D1.11, relating to

any chemical referenced in that table

that is used to manufacture

Methamphetamine, in order to reflect

the increased harm associated with

Methamphetamine offenses. If so, what

should those equivalencies be?

Proposed Amendment: Identity Theft

(2) Synopsis of Proposed Amendment:

The Identity Theft and Assumption

Deterrence Act of 1998 (the ‘‘Act’’), Pub.

L. 105–318, amended 18 U.S.C. § 1028

to criminalize the unauthorized use or

transfer of a means of identification

with the intent to commit or aid or abet

any federal violation or state felony. In

addition, the Act directed the

Commission to ‘‘provide an appropriate

penalty for each offense under section

1028 of title 18, United States Code.’’ In

carrying out this directive the Act

instructed the Commission to consider

the following factors:

(1) the extent to which the number of

victims (as defined in section 3663A(a)

of title 18, United States Code) involved

in the offense, including harm to

reputation, inconvenience, and other

difficulties resulting from the offense, is

an adequate measure for establishing

penalties under the Federal sentencing

guidelines;

(2) the number of means of

identification, identification documents,

or false identification documents

involved in the offense is an adequate

measure for establishing penalties under

the Federal sentencing guidelines;

(3) the extent to which the value of

loss to any individual caused by the

offense is an adequate measure for

establishing penalties under the Federal

sentencing guidelines;

(4) the range of conduct covered by

the offense;

(5) the extent to which sentencing

enhancements within the Federal

sentencing guidelines and the court’s

authority to sentence above the

applicable guideline range are adequate

to ensure punishment at or near the

maximum penalty for the most

egregious conduct covered by the

offense;

(6) the extent to which Federal

sentencing guidelines sentences for the

offenses have been constrained by

statutory maximum penalties;

(7) the extent to which Federal

sentencing guidelines for the offenses

adequately achieve the purposes of

sentencing set forth in section 3553(a)(2)

of title 18, United States Code; and

(8) any other factor that the United

States Sentencing Commission

considers to be appropriate.

There are two options to implement

this directive. Option 1 provides a twoprong enhancement, with a two-level

increase and a minimum offense level of

[10][11][12][13], if the offense involved

(A) the use of any identifying

information of an individual victim to

obtain or make any unauthorized

identification means of that individual

2666 Federal Register / Vol. 5, No. 11 / Tuesday, January 18, 2000 / Notices

victim; or (B) the possession of [5] or

more unauthorized identification

means. The subject of the term

‘‘unauthorized identification means’’ is

the item that is obtained or made by

using an individual victim’s identifying

information. For example, in a case

involving a credit card that was

obtained by using an individual victim’s

name, date of birth, and social security

number, the credit card would be the

unauthorized identification means.

Option 2 proposes two separate

enhancements to implement the

directive. The first enhancement

provides a two-level increase and

minimum offense level of [10][12] for

harm to an individual’s reputation or

credit standing, inconvenience related

to the correction of records or

restoration of an individual’s reputation

or credit standing, or similar difficulties.

The corresponding application note

provides that this enhancement only

applies if those harms are more than

minimal. The second proposed

enhancement provides a two-level

increase if the offense involved the

production or transfer of 6 or more

identification documents, false

identification documents, or means of

identification. This provision specifies

that the two-level increase is not to be

applied if the defendant’s conduct also

resulted in an increase under

§ 2F1.1(b)(1) (the fraud loss table).

Several issues for comment follow the

presentation of the options.

Proposed Amendment—Option 1

Section 2F1.1(b) is amended by

redesignating subdivisions (6) and (7) as

subdivisions (7) and (8), respectively;

and by inserting after subdivision (5) the

following new subdivision (6):

(6) If the offense involved (A) the use

of any identifying information of an

individual victim to obtain or make any

unauthorized identification means of

that individual victim; or (B) the

possession of [5] or more unauthorized

identification means, increase by [2]

levels. If the resulting offense level is

less than level [10][11][12][13], increase

to level [10][11][12][13].’’.

The Commentary to § 2F1.1 captioned

‘‘Application Notes’’ is amended by

striking Note 8(c) in its entirety and

inserting:

(c) Consequential Damages in

Procurement Fraud Cases, Product

Substitution Cases, and Cases Involving

Unauthorized Identification Means

In contrast to other types of cases, loss

in a case involving procurement fraud,

product substitution, or unauthorized

identification means includes not only

direct damages, but also consequential

damages that were reasonably

foreseeable. For example, in a case

involving a defense product substitution

offense, the loss includes the

government’s reasonably foreseeable

costs of making substitute transactions

and handling or disposing of the

product delivered or retrofitting the

product so that it can be used for its

intended purpose, plus the

government’s reasonably foreseeable

cost of rectifying the actual or potential

disruption to government operations

caused by the product substitution. In

the case of fraud affecting a defense

contract award, loss includes the

reasonably foreseeable administrative

cost to the government and other

participants of repeating or correcting

the procurement action affected, plus

any increased cost to procure the

product or service involved that was

reasonably foreseeable. Similarly, in a

case involving unauthorized

identification means, loss includes any

reasonably foreseeable, consequential

damages incurred by the individual

victim. For example, such damages

include attorneys fees, travel expenses,

costs of duplicating records, long

distance phone calls, or any other costs

incurred to repair a damaged credit

record.

Inclusion of reasonably foreseeable

consequential damages directly in the

calculation of loss in procurement fraud

and product substitution cases reflects

that such damages frequently are

substantial in such cases. Inclusion of

such damages directly in the calculation

of loss in an offense involving

unauthorized identification means

reflects the seriousness of the offense,

particularly with respect to the

individual victim, regardless of whether

the loss to the individual victim is

substantial.’’.

The Commentary to § 2F1.1 captioned

‘‘Application Notes’’ is amended by

striking Note 12 in its entirety and

inserting:

‘‘12. Offenses involving access

devices, in violation of 18 U.S.C. § 1029,

are also covered by this guideline. In

such a case, an upward departure may

be warranted when the actual loss does

not adequately reflect the seriousness of

the conduct.’’.

The Commentary to § 2F1.1 captioned

‘‘Application Notes’’ is amended by

redesignating Notes 16 through 20 as

Notes 18 through 22, respectively; and

by inserting after Note 15 the following

new Notes 16 and 17:

‘‘16. For purposes of subsection (b)(6)

and Application Note 8(c)—

‘Identifying information’ means any

‘means of identification’ as that term is

defined in 18 U.S.C. § 1028(d)(3).

‘Individual victim’ means an

individual, other than the defendant or

any individual involved in the jointly

undertaken criminal activity, whose

identifying information was used to

obtain or make an unauthorized

identification means. ‘Individual victim’

does not include a fictitious individual.

‘Unauthorized identification means’

means any identifying information that

has been obtained or made from any

other identifying information without

the authorization of the individual

victim whose identifying information

appears on, or as part of, that

unauthorized identification means. For

example, in a case involving a credit

card that had been obtained by using the

name, date of birth, and social security

number of an individual victim, the

‘unauthorized identification means’

would be the credit card and the ‘other

identifying information’ would be the

individual victim’s name, date of birth,

and social security number.

17. Offenses involving identification

documents and means of identification,

in violation of 18 U.S.C. § 1028, are

covered by this guideline. If (A) the

offense involved unauthorized

identification means, or the unlawful

production, transfer, possession, or use

of an identification document; and (B)

the primary purpose of the offense was

to violate, or assist another to violate,

the law pertaining to naturalization,

citizenship, or legal resident status,

apply § 2L2.1 or § 2L2.2, as appropriate,

rather than § 2F1.1.

Subsection (b)(6)(A) provides an

enhancement in any case in which any

identifying information of an individual

victim is used, without that individual’s

authorization, to obtain or make an

unauthorized identification means. This

subsection would apply, for example,

when a defendant obtains another

individual’s name and social security

number from a source ( e.g., from a

stolen wallet) and obtains and uses a

credit card in that individual’s name,

without the individual’s authorization.

This subsection would not apply,

however, if the defendant uses a credit

card from a stolen wallet only to make

a purchase. In such a case, the

defendant has not used the stolen credit

card to obtain or make an unauthorized

identification means.

Subsection (b)(6)(B) provides an

enhancement in any case in which the

offense involved the possession of [five]

or more unauthorized identification

means. The enhancement applies

regardless of whether the possession is

with respect to one individual victim or

more than one individual victim. For

example, the enhancement applies if the

offense involved (A) the possession of

Federal Register / Vol. 5, No. 11 / Tuesday, January 18, 2000 / Notices 2667

[three] unauthorized identification

means of one individual victim and

[two] unauthorized identification means

of another individual victim; or (B) the

possession of one unauthorized

identification means of [five] individual

victims.

In a case involving unauthorized

identification means, an upward

departure may be warranted if the

offense level does not adequately

address the seriousness of the offense.

Examples may include the following:

(a) an individual victim is erroneously

arrested because the defendant used an

unauthorized identification means of

the victim in connection with some

criminal conduct, or the individual

victim is denied a job because an arrest

record has been made in the victim’s

name;

(b) the extent of the offense conduct

is such that the defendant established or

made numerous unauthorized

identification means with respect to one

individual victim, essentially assuming

and living under that victim’s identity.’’.

The Commentary to § 2F1.1 captioned

‘‘Application Notes’’ is amended in

Note 20, as redesignated by this

amendment (formerly Note 18), by

striking ‘‘(7)’’ and inserting ‘‘(8)’’.

The Commentary to § 2F1.1 captioned

‘‘Application Notes’’ is amended in

Note 22, as redesignated by this

amendment (formerly Note 20), by

striking ‘‘(b)(7)(A) or (B)’’ and inserting

‘‘(b)(6) or (b)(8)(A) or (B)’’.

The Commentary to § 2F1.1 captioned

‘‘Background’’ is amended by inserting

after the fifth paragraph the following

new paragraphs:

‘‘A minimum offense level of

[10][11][12][13] is provided in

subsection (b)(6) for offenses involving

unauthorized identification means, in

part, because of the seriousness of the

offense. The minimum offense level

accounts for the fact that the

unauthorized identification means often

are within the defendant’s exclusive

control, making it difficult for the

individual victim to detect that his or

her identity has been ‘stolen’ and used

to obtain or make unauthorized

identification means. Generally, the

individual victim does not become

aware of the offense until certain harms

have already occurred (e.g., a damaged

credit rating or inability to obtain a

loan). The minimum offense level also

is provided because some of the harm to

the individual victim whose identifying

information is part of the unauthorized

identification means may be difficult or

impossible to quantify (e.g., harm to the

individual victim’s reputation or credit

rating, inconvenience, and other

difficulties resulting from the offense).

Subsection (b)(6) implements the

instruction to the Commission in

section 4 of Public Law 105–318.’’.

The Commentary to § 2F1.1 captioned

‘‘Background’’ is amended in the ninth

paragraph (formerly the seventh

paragraph) by striking ‘‘(6)’’ and

inserting ‘‘(7)’’.

The Commentary to § 2F1.1 captioned

‘‘Background’’ is amended in the tenth

paragraph (formerly the eighth

paragraph) by striking ‘‘(7)’’ and

inserting ‘‘(8)’’.

The Commentary to § 2F1.1 captioned

‘‘Background’’ is amended in the

eleventh paragraph (formerly the ninth

paragraph) by striking ‘‘(7)’’ and

inserting ‘‘(8)’’.

Option 2

Section 2F1.1(b) is amended by

redesignating subdivision (7) as

subdivision (9); and by inserting after

subdivision (6) the following new

subdivisions (7) and (8):

(7) If the offense involved (A) harm to

an individual’s reputation or credit

standing, inconvenience related to the

correction of records or restoration of an

individual’s reputation or credit

standing, or similar difficulties; and (B)

such harm, inconvenience, or

difficulties were more than minimal,

increase by 2 levels. If the resulting

offense level is less than level [10] [12],

increase to level [10] [12].

(8) If the offense involved the

production or transfer of 6 or more

identification documents, false

identification documents, or means of

identification, increase by 2 levels. Do

not apply this increase if the

defendant’s conduct also resulted in an

increase under subdivision (1).’’.

The Commentary to § 2F1.1 captioned

‘‘Application Notes’’ is amended in

Note 12 in the first sentence by inserting

‘‘, means of identification,’’ after

‘‘identification documents’’; in the

second sentence by inserting ‘‘or means

of identification’’ after ‘‘identification

documents’’; and in the third sentence

by striking ‘‘false identification

documents or’’.

The Commentary to § 2F1.1 captioned

‘‘Application Notes’’ is amended by

redesignating Notes 16 through 20 as

Notes 17 through 21, respectively; and

by inserting after Note 15 the following

new Note 16:

‘‘16. Subsection (b)(7) provides an

upward adjustment of 2 levels and a

floor of level [10] [12] for harm to an

individual’s reputation or credit

standing, inconvenience related to the

correction of records or restoration of an

individual’s reputation or credit

standing, or similar difficulties.

However, such harm, inconvenience, or

similar difficulties must be more than

minimal in order to qualify. Thus, for

example, neither an individual’s

speculation about potential harm to his

or her reputation or credit standing nor

a single, negative credit entry that was

corrected in a short time would qualify

for the 2-level adjustment under this

subsection, but a showing of multiple,

negative credit entries or a poor credit

rating would. If the offense involved a

level of harm, inconvenience, or other

difficulty not adequately addressed by

subsection (b)(7) or by § 2F1.1 in

general, an upward departure may be

warranted. For example, if the wrong

person were arrested because of the

fraudulent use of such person’s means

of identification by another, or if an

individual’s identity were completely

taken over by another, an upward

departure would be warranted to

recognize the extraordinary harm to the

victim’s reputation or the resulting

inconvenience in the restoration of his

or her reputation or the necessary

correction of records. Moreover, harm of

the type described in subsection (b)(7)

to a significant number of individuals

would also warrant an upward

departure.’’.

The Commentary to § 2F1.1 captioned

‘‘Application Notes’’ is amended in

Note 19, as redesignated by this

amendment (formerly Note 18), by

striking ‘‘(7)’’ and inserting ‘‘(9)’’.

The Commentary to § 2F1.1 captioned

‘‘Application Notes’’ is amended in

Note 21, as redesignated by this

amendment (formerly Note 20), by

striking ‘‘(7)’’ and inserting ‘‘(9)’’.

The Commentary to § 2F1.1 captioned

‘‘Background’’ is amended in the eighth

and ninth paragraphs by striking ‘‘(7)’’

and inserting ‘‘(9)’’ each place it

appears.

Issues for Comment

The Commission invites comment on

the following issues pertaining to

identity theft:

1. The proposed amendment in

Option 1 provides a two-level

enhancement in the fraud guideline for

the possession of [5] or more

unauthorized identification means. The

enhancement, as proposed, applies

regardless of whether the offense

involves the possession of unauthorized

identification means of one individual

victim or more than one individual

victim as long as at least [5]

unauthorized identification means were

possessed. Should the Commission

consider providing an additional part to

the proposed enhancement that would

increase sentences based on the number

of individual victims involved in the

offense? If so, on what number of

2668 Federal Register / Vol. 5, No. 11 / Tuesday, January 18, 2000 / Notices

individual victims should the

enhancement be based?

The Commission also invites

comment on whether it should provide

an additional increase, cumulative to

the 2-level increase already proposed in

Option 1, for cases involving specified

numbers of individual victims or

unauthorized identification means. For

example, such an enhancement could

provide an additional [4-level]

enhancement if the offense involved

more than [10–25] unauthorized

identification means and/or more than

[5–25] individual victims. Alternatively,

should the Commission provide an

upward departure for cases involving a

large number of unauthorized

identification means and/or a large

number of individual victims?

2. The proposed amendment in

Option 1 limits the enhancement for

identity theft to the fraud guideline.

Given the breadth of offense conduct

covered by 18 U.S.C. § 1028, should the

Commission also provide a similar

sentencing increase (including, if

appropriate, an enhancement that ties

offense level increases to specified

numbers of identification means) for

identity theft conduct in [any or] all

other economic crime guidelines (e.g.,

§ 2B1.1 (Theft), § 2S1.1 (Laundering of

Monetary Instruments), § 2T1.4 (Tax

Fraud))?

3. Given the breadth of offense

conduct covered by 18 U.S.C. § 1028, as

an alternative to amending Chapter

Two, should the Commission amend

Chapter Three of the Guidelines

Manual, relating to general adjustments,

to provide a new adjustment that would

apply in every case that involves the

unauthorized use of an identification

means? If so, how should that

adjustment be structured (e.g., should

there be a table or tiered adjustment

based on the number of unauthorized

identification means involved in the

offense)? Should the adjustment also

include the unauthorized use of any

identification document or the use of

any false identification document?

4. As an alternative to a Chapter Three

adjustment, should the Commission

amend Chapter Five, Part K, of the

Guidelines Manual, relating to

departures, to encourage a departure

above the authorized guideline sentence

in any case involving the unauthorized

use of an identification means if the

guideline range does not adequately

reflect the seriousness of the offense

conduct?

5. The Treasury Department has

recommended that the Commission

amend its current minimum loss

amount rule for stolen credit card

offenses in § 2B1.1 (a minimum loss

amount of $100 per credit card) to

include all access devices, and that the

minimum loss amount be increased to

$1000 per access device. Given that the

Identity Theft and Assumption

Deterrence Act of 1998 included access

devices in the definition of ‘‘means of

identification,’’ the Commission invites

comment on whether it should consider

amending that rule to include all access

devices (such as debit cards, bank

account numbers, electronic serial

numbers, and mobile identification

numbers) and to place that amended

rule in § 2F1.1. Such a rule would have

the effect of subjecting an offense that

involves an unauthorized identification

means that is a credit card number to

the same minimum loss amount as an

offense that involves the stolen credit

card itself. If the Commission should

consider such an amendment, should

the Commission additionally amend the

rule to increase the minimum loss

amount per access device, for example

[$500][$750][$1000] per access device?

(Such an amendment may need to be

coordinated with efforts to revise the

theft guideline in connection with

offenses involving access devices and

cellular phone cloning.)

6. Commission data indicate that a

high portion of offenders involved in

identity theft conduct have previously

been convicted of similar offense

conduct at either the state or federal

level. Although Chapter Four addresses

criminal history, the Commission has

provided enhancements in certain

Chapter Two guidelines for prior similar

conduct (e.g., §§ 2L2.1(b)(4) and

2L2.2(b)(2), which provide two- and

four-level increases if ‘‘the defendant

committed any part of the instant

offense after sustaining one or more

convictions for felony immigration and

naturalization offenses’’). Should the

Commission provide an enhancement in

the relevant Chapter Two guideline

(§ 2F1.1, if the Commission adopts a

limited approach to identity theft) or

guidelines (the economic crime

guidelines, if the Commission adopts a

more expansive approach to identity

theft) if the defendant had previously

been convicted of conduct similar to

identity theft? If so, what is the

appropriate number of levels for the

enhancement? Should such an

enhancement require a minimum

offense level?

[FR Doc. 00–1075 Filed 1–14–00; 8:45 am]

BILLING CODE 2210–40–P

DEPARTMENT OF STATE

[Public Notice 3205]

Culturally Significant Objects Imported

for Exhibition Determinations: ‘‘Music

in the Age of Confucius’’

ACTION: Notice.

SUMMARY: Notice is hereby given of the

following determinations: Pursuant to

the authority vested in me by the Act of

October 19, 1965 (79 Stat. 985, 22 U.S.C.

2459 ), the Foreign Affairs Reform and

Restructuring Act of 1998 (112 Stat.

2681, et seq.), Delegation of Authority

No. 234 of October 1, 1999, and

Delegation of Authority of October 19,

1999, I hereby determine that the objects

to be included in the exhibition ‘‘Music

in the Age of Confucius,’’ imported from

abroad for the temporary exhibition

without profit within the United States,

are of cultural significance. These

objects are imported pursuant to loan

agreements with foreign lenders. I also

determine that the exhibition or display

of the exhibit objects at the

Smithsonian’s, Freer Gallery of Art and

Arthur M. Sackler Gallery, from on or

about April 30 to September 17, 2000,

is in the national interest. Public Notice

of these Determinations is ordered to be

published in the Federal Register.

FOR FURTHER INFORMATION CONTACT: For

further information, including a list of

exhibit objects, contact Carol Epstein,

Attorney-Adviser, Office of the Legal

Adviser, U.S. Department of State

(telephone: 202–619–6981). The address

is U.S. Department of State, SA–44;

301–4th Street, S.W., Room 700,

Washington, D.C. 20547–0001.

Dated: January 9, 2000.

William B. Bader,

Assistant Secretary for Educational and

Cultural Affairs, U.S. Department of State.

[FR Doc. 00–1077 Filed 1–14–00; 8:45 am]

BILLING CODE 4710–08–U

DEPARTMENT OF STATE

[Public Notice 3205]

Culturally Significant Objects Imported

for Exhibition Determinations: ‘‘The

Topkapi Palace: Jewels and Treasures

of the Sultans’’

DEPARTMENT: United States Department

of State.

ACTION: Notice.

SUMMARY: Notice is hereby given of the

following determinations: Pursuant to

the authority vested in me by the Act of

October 19, 1965 (79 Stat. 985, 22 U.S.C.

2459), the Foreign Affairs Reform and