Federal Register / Vol. 62, No. 37 / Tuesday, February 25, 1997 / Notices 8487

STOCK CLEARING CORPORATION OF PHILADELPHIA, CONSOLIDATED RESTATEMENT OF FEES—Continued

Service Fee

c. Over the Window Delivery ‘‘Don’t

Know’’.

$10.00

d. Over the Window Receive Clearing

House.

$6.00

e. Dividend Settlement Service ............ $5.00

f. Envelope Settlement Service/InterCity/Funds Only Settlement Service.$5.00

g. Over the Window Delivery Fed

Funds.

$22.50

h. Over the Window Receive Fed

Funds.

$22.50

i. Syndicate Re-Delivery-Paid .............. $14.00

j. Syndicate Re-Delivery ‘‘Don’t Know’’ $17.00

k. Securities Hold ................................. $5.00

l. Reorganization Pick-up ..................... $5.00

m. Reorganization Reject ..................... $10.00

n. Reorganization Agent Delivery ........ $15.00

o. Syndicate Pick-Up ............................ $17.00

p. Miscellaneous .................................. $5.00

q. Deliveries to New Jersey ................. $12.00 per item (plus costs)

10. Margin Account Interest:

Charge on net debit balances .............. 1⁄2% above bank broker call rate

11. Research Fees:

a. Per photocopy of input forms .......... $4.00

b. Per microfiche copy ......................... $4.00

c. Items less than 90 days old ............. No charge

d. Items 1 year old or less ................... $15.00 per hour

e. Items over 1 year old ....................... $15.00 per hour, $25.00 minimum, plus archive retrieval costs

12. Computer Transmission/Tapes:

a. Purchase and Sale, Trade Data

(daily).

$100.00 per month

b. Purchase and Sale, Trades plus

T+2 Settling Trades (daily).

$150.00 per month

c. Miscellaneous ................................... $150.00 per month; includes 6 tapes/transmission

$25.00 per additional tape/transmission

13. Lost and Stolen Securities Program ..... $100.00 per year, $2.50 per inquiry

14. P&L Statement Charges ....................... $0.01 per line

15. Buy-ins .................................................. $5.00 per items submitted

16. Member to Member Envelope Service $5.00 per envelope (charged to sender), plus carrier costs

**This is not a graduated rate schedule. Once this volume threshold is reached, all trades from the first trade receive such volume discount

rate.

[FR Doc. 97–4609 Filed 2–24–97; 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: (1) Promulgation of a

temporary, ‘‘emergency’’ guideline

amendment generally increasing the

offense levels for List I chemicals by two

levels and a proposal to re-promulgate

such amendment as a non-emergency

amendment; (2) deferred action until the

March 19, 1997, meeting on previously

proposed temporary, ‘‘emergency’’

guideline amendments increasing

penalties for alien smuggling, fraudulent

use of government-issued documents,

and involuntary servitude, peonage, and

slave trade offenses; (3) other proposed

non-emergency amendments to

sentencing guidelines and commentary;

(4) proposed conforming amendments

relating to proposed amendment 18,

published in 62 FR 151 (January 2,

1997); and (5) proposed conforming

amendment relating to proposed

amendment 12, published in 62 FR 151

(January 2, 1997). Request for comment.

SUMMARY: The Sentencing Commission

hereby gives notice of the following

actions: (1) Pursuant to section 302 of

the Comprehensive Methamphetamine

Control Act of 1996, the Commission is

promulgating a temporary, emergency

amendment to § 2D1.11 and

accompanying commentary; pursuant to

section 217(a) of the Comprehensive

Crime Control Act of 1984 (28 U.S.C.

994(a) and (p)), the Commission further

proposes to re-promulgate such

amendment as a non-emergency

amendment; (2) the Commission has

deferred action on promulgating

amendments to §§ 2L1.1, 2L2.1, 2L2.2,

and 2H4.1 relating to sections 203, 211,

and 218 of the Illegal Immigration

Reform and Immigrant Responsibility

Act of 1996 until the meeting on March

19, 1997; and (3) pursuant to section

217 (a) of the Comprehensive Crime

Control Act of 1984 (28 U.S.C. 994 (a)

and (p)), the Commission is considering

promulgating certain other nonemergency amendments to the

sentencing guidelines and commentary.

The Commission may submit the nonemergency amendments to the Congress

not later than May 1, 1997.

This notice sets forth the emergency

and other proposed amendments and a

synopsis of the issues addressed by the

amendments, as well as additional

issues for comment. The proposed

amendments are presented in this notice

in one of two formats. First, some of the
8488 Federal Register / Vol. 62, No. 37 / Tuesday, February 25, 1997 / Notices

amendments are proposed as specific

revisions to a guideline or commentary.

Bracketed text within a proposed

amendment indicates alternative

proposals and that the Commission

invites comment and suggestions for

appropriate policy choices; for example,

a proposed enhancement of [3–5] levels

means a proposed enhancement of

either three, four, or five levels.

Similarly, a proposed enhancement of

[4] levels indicates that the Commission

is considering, and invites comment on,

alternative policy choices. Second, the

Commission has highlighted certain

issues for comment and invites

suggestions for specific amendment

language.

DATES: (1) The Commission has

specified an effective date of May 1,

1997, for the emergency amendment

increasing the penalties for offenses

involving List I chemicals.

(2) Comment on the non-emergency

amendments and issues set forth in this

notice should be received not later than

March 28, 1997.

(3) The Commission has re-scheduled

the public hearing on non-emergency

amendments proposed for comment in

the Federal Register of January 2, 1997,

(62 FR 151) and in this notice for March

18, 1997, beginning at 9:30 a.m. in the

Thurgood Marshall Federal Judiciary

Building, One Columbus Circle, NE,

Washington, DC 20002–8002.

A person who desires to testify at the

public hearing should notify Michael

Courlander, Public Information

Specialist, at (202) 273–4590 not later

than March 3, 1997. Written testimony

for the hearing must be received by the

Commission not later than March 10,

1997. Submission of written testimony

is a requirement for testifying at the

public hearing.

ADDRESSES: Public comment should be

sent to: United States Sentencing

Commission, One Columbus Circle, NE,

Suite 2–500, Washington, DC 20002–

8002, Attention: Public Information.

FOR FURTHER INFORMATION CONTACT:

Michael Courlander, Public Information

Specialist, Telephone: (202) 273–4590.

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

Richard P. Conaboy,

Chairman.

Emergency Amendments

Section 2D1.11 Unlawfully

Distributing, Importing, Exporting or

Possessing a Listed Chemical; Attempt

or Conspiracy

1. Synopsis of Amendment: This

amendment implements section 302 of

the Comprehensive Methamphetamine

Control Act of 1996. That section raises

the statutory maximum penalties under

21 U.S.C. 841(d) and 960(d) from ten to

twenty years’ imprisonment. The Act

also instructs the Commission to

increase by at least two levels the

offense levels for offenses involving list

I chemicals under 21 U.S.C. 841(d) (1)

and (2) and 960(d) (1) and (3). These

offenses involve the possession and

importation of listed chemicals

knowing, or having reasonable cause to

believe, the chemicals will be used to

unlawfully manufacture a controlled

substance. The Act requires that the

offense levels be calculated

proportionately on the basis of the

quantity of controlled substance that

reasonably could be manufactured in a

clandestine setting using the quantity of

list I chemical possessed, distributed,

imported, or exported.

The amendment raises the penalties

for list I chemicals by two levels. The

top of the Chemical Quantity Table for

list I chemicals will now be at level 30.

The offense level for list II chemicals

remains the same. With the new

statutory maximum of 20 years, the

guidelines will now be able to better

take into account aggravating

adjustments such as those for role in the

offense. Additionally, the increased

statutory maximum will allow for

higher sentences for cases convicted

under this statute that involve the actual

manufacture of a controlled substance.

The amendment also makes a clerical

change to correct the spelling of

‘‘Isosafrole’’.

Effective Date: The Commission has

specified an effective date of May 1,

1997, for this emergency amendment.

Notice of Proposed Re-Promulgation

as Permanent Amendment: The

Commission also proposes to repromulgate this amendment as a nonemergency amendment and submit it to

Congress not later than May 1, 1997.

Amendment: Section 2D1.11(d) is

amended by deleting subsections (d)(1)–

(9) and inserting in lieu thereof the

following:

Listed chemicals and quantity Base offense level

(1) List I Chemicals .................................................................................................................................................................................... Level 30.

17.8 KG or more of Benzaldehyde;

20 KG or more of Benzyl Cyanide;

20 KG or more of Ephedrine;

200 G or more of Ergonovine;

400 G or more of Ergotamine;

20 KG or more of Ethylamine;

44 KG or more of Hydriodic Acid;

320 KG or more of Isosafrole;

4 KG or more of Methylamine;

500 KG or more of N-Methylephedrine;

500 KG or more of N-Methylpseudoephedrine;

12.6 KG or more of Nitroethane;

200 KG or more of Norpseudoephedrine;

20 KG or more of Phenylacetic Acid;

200 KG or more of Phenylpropanolamine;

10 KG or more of Piperidine;

320 KG or more of Piperonal;

1.6 KG or more of Propionic Anhydride;

20 KG or more of Pseudoephedrine;

320 KG or more of Safrole;

400 KG or more of 3, 4-Methylenedioxyphenyl-2-propanone;

(2) List I Chemicals .................................................................................................................................................................................... Level 28.
Federal Register / Vol. 62, No. 37 / Tuesday, February 25, 1997 / Notices 8489

Listed chemicals and quantity Base offense level

At least 5.3 KG but less than 17.8 KG of Benzaldehyde;

At least 6 KG but less than 20 KG of Benzyl Cyanide;

At least 6 KG but less than 20 KG of Ephedrine;

At least 60 G but less than 200 G of Ergonovine;

At least 120 G but less than 400 G of Ergotamine;

At least 6 KG but less than 20 KG of Ethylamine;

At least 13.2 KG but less than 44 KG of Hydriodic Acid;

At least 96 KG but less than 320 KG of Isosafrole;

At least 1.2 KG but less than 4 KG of Methylamine;

At least 150 KG but less than 500 KG of N-Methylephedrine;

At least 150 KG but less than 500 KG of N-Methylpseudoephedrine;

At least 3.8 KG but less than 12.6 KG of Nitroethane;

At least 60 KG but less than 200 KG of Norpseudoephedrine;

At least 6 KG but less than 20 KG of Phenylacetic Acid;

At least 60 KG but less than 200 KG of Phenylpropanolamine;

At least 3 KG but less than 10 KG of Piperidine;

At least 96 KG but less than 320 KG of Piperonal;

At least 480 G but less than 1.6 KG of Propionic Anhydride;

At least 6 KG but less than 20 KG of Pseudoephedrine;

At least 96 KG but less than 320 KG of Safrole;

At least 120 KG but less than 400 KG of 3, 4-Methylenedioxyphenyl-2-propanone;

List II Chemicals

11 KG or more of Acetic Anhydride;

1175 KG or more of Acetone;

20 KG or more of Benzyl Chloride;

1075 KG or more of Ethyl Ether;

1200 KG or more of Methyl Ethyl Ketone;

10 KG or more of Potassium Permanganate;

1300 KG or more of Toluene.

(3) List I Chemicals .................................................................................................................................................................................... Level 26.

At least 1.8 KG but less than 5.3 KG of Benzaldehyde;

At least 2 KG but less than 6 KG of Benzyl Cyanide;

At least 2 KG but less than 6 KG of Ephedrine;

At least 20 G but less than 60 G of Ergonovine;

At least 40 G but less than 120 G of Ergotamine;

At least 2 KG but less than 6 KG of Ethylamine;

At least 4.4 KG but less than 13.2 KG of Hydriodic Acid;

At least 32 KG but less than 96 KG of Isosafrole;

At least 400 G but less than 1.2 KG of Methylamine;

At least 50 KG but less than 150 KG of N-Methylephedrine;

At least 50 KG but less than 150 KG of N-Methylpseudoephedrine;

At least 1.3 KG but less than 3.8 KG of Nitroethane;

At least 20 KG but less than 60 KG of Norpseudoephedrine;

At least 2 KG but less than 6 KG of Phenylacetic Acid;

At least 20 KG but less than 60 KG of Phenylpropanolamine;

At least 1 KG but less than 3 KG of Piperidine;

At least 32 KG but less than 96 KG of Piperonal;

At least 160 G but less than 480 G of Propionic Anhydride;

At least 2 KG but less than 6 KG of Pseudoephedrine;

At least 32 KG but less than 96 KG of Safrole;

At least 40 KG but less than 120 KG of 3, 4-Methylenedioxyphenyl-2-propanone;

List II Chemicals

At least 3.3 KG but less than 11 KG of Acetic Anhydride;

At least 352.5 KG but less than 1175 KG of Acetone;

At least 6 KG but less than 20 KG of Benzyl Chloride;

At least 322.5 KG but less than 1075 KG of Ethyl Ether;

At least 360 KG but less than 1200 KG of Methyl Ethyl Ketone;

At least 3 KG but less than 10 KG of Potassium Permanganate;

At least 390 KG but less than 1300 KG of Toluene.

(4) List I Chemicals .................................................................................................................................................................................... Level 24.
8490 Federal Register / Vol. 62, No. 37 / Tuesday, February 25, 1997 / Notices

Listed chemicals and quantity Base offense level

At least 1.2 KG but less than 1.8 KG of Benzaldehyde;

At least 1.4 KG but less than 2 KG of Benzyl Cyanide;

At least 1.4 KG but less than 2 KG of Ephedrine;

At least 14 G but less than 20 G of Ergonovine;

At least 28 G but less than 40 G of Ergotamine;

At least 1.4 KG but less than 2 KG of Ethylamine;

At least 3.08 KG but less than 4.4 KG of Hydriodic Acid;

At least 22.4 KG but less than 32 KG of Isosafrole;

At least 280 G but less than 400 G of Methylamine;

At least 35 KG but less than 50 KG of N-Methylephedrine;

At least 35 KG but less than 50 KG of N-Methylpseudoephedrine;

At least 879 G but less than 1.3 KG of Nitroethane;

At least 14 KG but less than 20 KG of Norpseudoephedrine;

At least 1.4 KG but less than 2 KG of Phenylacetic Acid;

At least 14 KG but less than 20 KG of Phenylpropanolamine;

At least 700 G but less than 1 KG of Piperidine;

At least 22.4 KG but less than 32 KG of Piperonal;

At least 112 G but less than 160 G of Propionic Anhydride;

At least 1.4 KG but less than 2 KG of Pseudoephedrine;

At least 22.4 KG but less than 32 KG of Safrole;

At least 28 KG but less than 40 KG of 3, 4-Methylenedioxyphenyl-2-propanone;

List II Chemicals

At least 1.1 KG but less than 3.3 KG of Acetic Anhydride;

At least 117.5 KG but less than 352.5 KG of Acetone;

At least 2 KG but less than 6 KG of Benzyl Chloride;

At least 107.5 KG but less than 322.5 KG of Ethyl Ether;

At least 120 KG but less than 360 KG of Methyl Ethyl Ketone;

At least 1 KG but less than 3 KG of Potassium Permanganate;

At least 130 KG but less than 390 KG of Toluene.

(5) List I Chemicals .................................................................................................................................................................................... Level 22.

At least 712 G but less than 1.2 KG of Benzaldehyde;

At least 800 G but less than 1.4 KG of Benzyl Cyanide;

At least 800 G but less than 1.4 KG of Ephedrine;

At least 8 G but less than 14 G of Ergonovine;

At least 16 G but less than 28 G of Ergotamine;

At least 800 G but less than 1.4 KG of Ethylamine;

At least 1.76 KG but less than 3.08 KG of Hydriodic Acid;

At least 12.8 KG but less than 22.4 KG of Isosafrole;

At least 160 G but less than 280 G of Methylamine;

At least 20 KG but less than 35 KG of N-Methylephedrine;

At least 20 KG but less than 35 KG of N-Methylpseudoephedrine;

At least 503 G but less than 879 G of Nitroethane;

At least 8 KG but less than 14 KG of Norpseudoephedrine;

At least 800 G but less than 1.4 KG of Phenylacetic Acid;

At least 8 KG but less than 14 KG of Phenylpropanolamine;

At least 400 G but less than 700 G of Piperidine;

At least 12.8 KG but less than 22.4 KG of Piperonal;

At least 64 G but less than 112 G of Propionic Anhydride;

At least 800 G but less than 1.4 KG of Pseudoephedrine;

At least 12.8 KG but less than 22.4 KG of Safrole;

At least 16 KG but less than 28 KG of 3, 4-Methylenedioxyphenyl-2-propanone;

List II Chemicals

At least 726 G but less than 1.1 KG of Acetic Anhydride;

At least 82.25 KG but less than 117.5 KG of Acetone;

At least 1.4 KG but less than 2 KG of Benzyl Chloride;

At least 75.25 KG but less than 107.5 KG of Ethyl Ether;

At least 84 KG but less than 120 KG of Methyl Ethyl Ketone;

At least 700 G but less than 1 KG of Potassium Permanganate;

At least 91 KG but less than 130 KG of Toluene.

(6) List I Chemicals .................................................................................................................................................................................... Level 20.
Federal Register / Vol. 62, No. 37 / Tuesday, February 25, 1997 / Notices 8491

Listed chemicals and quantity Base offense level

At least 178 G but less than 712 G of Benzaldehyde;

At least 200 G but less than 800 G of Benzyl Cyanide;

At least 200 G but less than 800 G of Ephedrine;

At least 2 G but less than 8 G of Ergonovine;

At least 4 G but less than 16 G of Ergotamine;

At least 200 G but less than 800 G of Ethylamine;

At least 440 G but less than 1.76 KG of Hydriodic Acid;

At least 3.2 KG but less than 12.8 KG of Isosafrole;

At least 40 G but less than 160 G of Methylamine;

At least 5 KG but less than 20 KG of N-Methylephedrine;

At least 5 KG but less than 20 KG of N-Methylpseudoephedrine;

At least 126 G but less than 503 G of Nitroethane;

At least 2 KG but less than 8 KG of Norpseudoephedrine;

At least 200 G but less than 800 G of Phenylacetic Acid;

At least 2 KG but less than 8 KG of Phenylpropanolamine;

At least 100 G but less than 400 G of Piperidine;

At least 3.2 KG but less than 12.8 KG of Piperonal;

At least 16 G but less than 64 G of Propionic Anhydride;

At least 200 G but less than 800 G of Pseudoephedrine;

At least 3.2 KG but less than 12.8 KG of Safrole;

At least 4 KG but less than 16 KG of 3, 4-Methylenedioxyphenyl-2-propanone;

List II Chemicals

At least 440 G but less than 726 G of Acetic Anhydride;

At least 47 KG but less than 82.25 KG of Acetone;

At least 800 G but less than 1.4 KG of Benzyl Chloride;

At least 43 KG but less than 75.25 KG of Ethyl Ether;

At least 48 KG but less than 84 KG of Methyl Ethyl Ketone;

At least 400 G but less than 700 G of Potassium Permanganate;

At least 52 KG but less than 91 KG of Toluene.

(7) List I Chemicals .................................................................................................................................................................................... Level 18.

At least 142 G but less than 178 G of Benzaldehyde;

At least 160 G but less than 200 G of Benzyl Cyanide;

At least 160 G but less than 200 G of Ephedrine;

At least 1.6 G but less than 2 G of Ergonovine;

At least 3.2 G but less than 4 G of Ergotamine;

At least 160 G but less than 200 G of Ethylamine;

At least 352 G but less than 440 G of Hydriodic Acid;

At least 2.56 KG but less than 3.2 KG of Isosafrole;

At least 32 G but less than 40 G of Methylamine;

At least 4 KG but less than 5 KG of N-Methylephedrine;

At least 4 KG but less than 5 KG of N-Methylpseudoephedrine;

At least 100 G but less than 126 G of Nitroethane;

At least 1.6 KG but less than 2 KG of Norpseudoephedrine;

At least 160 G but less than 200 G of Phenylacetic Acid;

At least 1.6 KG but less than 2 KG of Phenylpropanolamine;

At least 80 G but less than 100 G of Piperidine;

At least 2.56 KG but less than 3.2 KG of Piperonal;

At least 12.8 G but less than 16 G of Propionic Anhydride;

At least 160 G but less than 200 G of Pseudoephedrine;

At least 2.56 KG but less than 3.2 KG of Safrole;

At least 3.2 KG but less than 4 KG of 3, 4-Methylenedioxyphenyl-2-propanone;

List II Chemicals

At least 110 G but less than 440 G of Acetic Anhydride;

At least 11.75 KG but less than 47 KG of Acetone;

At least 200 G but less than 800 G of Benzyl Chloride;

At least 10.75 KG but less than 43 KG of Ethyl Ether;

At least 12 KG but less than 48 KG of Methyl Ethyl Ketone;

At least 100 G but less than 400 G of Potassium Permanganate;

At least 13 KG but less than 52 KG of Toluene.

(8) List I Chemicals .................................................................................................................................................................................... Level 16.
8492 Federal Register / Vol. 62, No. 37 / Tuesday, February 25, 1997 / Notices

Listed chemicals and quantity Base offense level

3.6 KG or more of Anthranilic Acid;

At least 107 G but less than 142 G of Benzaldehyde;

At least 120 G but less than 160 G of Benzyl Cyanide;

At least 120 G but less than 160 G of Ephedrine;

At least 1.2 G but less than 1.6 G of Ergonovine;

At least 2.4 G but less than 3.2 G of Ergotamine;

At least 120 G but less than 160 G of Ethylamine;

At least 264 G but less than 352 G of Hydriodic Acid;

At least 1.92 KG but less than 2.56 KG of Isosafrole;

At least 24 G but less than 32 G of Methylamine;

4.8 KG or more of N-Acetylanthranilic Acid;

At least 3 KG but less than 4 KG of N-Methylephedrine;

At least 3 KG but less than 4 KG of N-Methylpseudoephedrine;

At least 75 G but less than 100 G of Nitroethane;

At least 1.2 KG but less than 1.6 KG of Norpseudoephedrine;

At least 120 G but less than 160 G of Phenylacetic Acid;

At least 1.2 KG but less than 1.6 KG of Phenylpropanolamine;

At least 60 G but less than 80 G of Piperidine;

At least 1.92 KG but less than 2.56 KG of Piperonal;

At least 9.6 G but less than 12.8 G of Propionic Anhydride;

At least 120 G but less than 160 G of Pseudoephedrine;

At least 1.92 KG but less than 2.56 KG of Safrole;

At least 2.4 KG but less than 3.2 KG of 3, 4-Methylenedioxyphenyl-2-propanone;

List II Chemicals

At least 88 G but less than 110 G of Acetic Anhydride;

At least 9.4 KG but less than 11.75 KG of Acetone;

At least 160 G but less than 200 G of Benzyl Chloride;

At least 8.6 KG but less than 10.75 KG of Ethyl Ether;

At least 9.6 KG but less than 12 KG of Methyl Ethyl Ketone;

At least 80 G but less than 100 G of Potassium Permanganate;

At least 10.4 KG but less than 13 KG of Toluene.

(9) List I Chemicals .................................................................................................................................................................................... Level 14.

At least 2.7 KG but less than 3.6 KG of Anthranilic Acid;

At least 71.2 G but less than 107 G of Benzaldehyde;

At least 80 G but less than 120 G of Benzyl Cyanide;

At least 80 G but less than 120 G of Ephedrine;

At least 800 MG but less than 1.2 G of Ergonovine;

At least 1.6 G but less than 2.4 G of Ergotamine;

At least 80 G but less than 120 G of Ethylamine;

At least 176 G but less than 264 G of Hydriodic Acid;

At least 1.44 G but less than 1.92 KG of Isosafrole;

At least 16 G but less than 24 G of Methylamine;

At least 3.6 KG but less than 4.8 KG of N-Acetylanthranilic Acid;

At least 2.25 KG but less than 3 KG of N-Methylephedrine;

At least 2.25 KG but less than 3 KG of N-Methylpseudoephedrine;

At least 56.25 G but less than 75 G of Nitroethane;

At least 800 G but less than 1.2 KG of Norpseudoephedrine;

At least 80 G but less than 120 G of Phenylacetic Acid;

At least 800 G but less than 1.2 KG of Phenylpropanolamine;

At least 40 G but less than 60 G of Piperidine;

At least 1.44 KG but less than 1.92 KG of Piperonal;

At least 7.2 G but less than 9.6 G of Propionic Anhydride;

At least 80 G but less than 120 G of Pseudoephedrine;

At least 1.44 G but less than 1.92 KG of Safrole;

At least 1.8 KG but less than 2.4 KG of 3, 4-Methylenedioxyphenyl-2-propanone;

List II Chemicals

At least 66 G but less than 88 G of Acetic Anhydride;

At least 7.05 KG but less than 9.4 KG of Acetone;

At least 120 G but less than 160 G of Benzyl Chloride;

At least 6.45 KG but less than 8.6 KG of Ethyl Ether;

At least 7.2 KG but less than 9.6 KG of Methyl Ethyl Ketone;

At least 60 G but less than 80 G of Potassium Permanganate;

At least 7.8 KG but less than 10.4 KG of Toluene.

(10) List I Chemicals .................................................................................................................................................................................. Level 12.
Federal Register / Vol. 62, No. 37 / Tuesday, February 25, 1997 / Notices 8493

Listed chemicals and quantity Base offense level

Less than 2.7 KG of Anthranilic Acid;

Less than 71.2 G of Benzaldehyde

Less than 80 G of Benzyl Cyanide;

Less than 80 G of Ephedrine;

Less than 800 MG of Ergonovine;

Less than 1.6 G of Ergotamine;

Less than 80 G of Ethylamine;

Less than 176 G of Hydriodic Acid;

Less than 1.44 G of Isosafrole;

Less than 16 G of Methylamine;

Less than 3.6 KG of N-Acetylanthranilic Acid;

Less than 2.25 KG of N-Methylephedrine;

Less than 2.25 KG of N-Methylpseudoephedrine;

Less than 56.25 G of Nitroethane;

Less than 800 G of Norpseudoephedrine;

Less than 80 G of Phenylacetic Acid;

Less than 800 G of Phenylpropanolamine;

Less than 40 G of Piperidine;

Less than 1.44 KG of Piperonal;

Less than 7.2 G of Propionic Anhydride;

Less than 80 G of Pseudoephedrine;

Less than 1.44 G of Safrole;

Less than 1.8 KG of 3, 4-Methylenedioxyphenyl-2-propanone;

List II Chemicals

Less than 66 G of Acetic Anhydride;

Less than 7.05 KG of Acetone;

Less than 120 G of Benzyl Chloride;

Less than 6.45 KG of Ethyl Ether;

Less than 7.2 KG of Methyl Ethyl Ketone;

Less than 60 G of Potassium Permanganate;

Less than 7.8 KG of Toluene.’’.

Section 2D1.11 is amended in Note

‘‘E’’ (List I Chemical Equivalency Table)

of the guideline by deleting ‘‘Isoafrole’’

and inserting in lieu thereof

‘‘Isosafrole’’.

The Commentary to § 2D1.11

captioned ‘‘Application Notes’’ is

amended in Note 4(a) by deleting ‘‘three

kilograms’’ and inserting in lieu thereof

‘‘300 grams’’; by deleting ‘‘24’’ each time

it appears and inserting in lieu thereof

‘‘26’’; and by deleting ‘‘14’’ and

inserting in lieu thereof ‘‘16’’.

‘‘Emergency’’ Amendments on Alien

Smuggling, Immigration Document

Fraud, and Involuntary Servitude

2. In its previous Notice of Proposed

Amendments, see 62 FR 151 (January 2,

1997), the Commission gave notice of an

intent to promulgate as temporary,

‘‘emergency’’ amendments certain

proposals relating to Alien Smuggling

(§ 2L1.1), Immigration Document Fraud

(§ 2L2.1 and 2L2.2), and Involuntary

Servitude (§ 2H4.1). The Commission

considered these amendments at its

February 12, 1997, meeting but deferred

action on them until its March 19, 1997

meeting. At that meeting, the

Commission intends to further consider

these proposals and may promulgate

some version of them as temporary,

‘‘emergency’’ amendments. If the

Commission so acts, it may also propose

to re-promulgate these proposals as nonemergency amendments to be submitted

to Congress by May 1, 1997. These

proposals should be considered in light

of that likely course of action.

Non-Emergency Amendments

Immigration

3. Synopsis of Proposed Amendment:

The proposed amendment implements

sections 321 and 334 of the Illegal

Immigration and Immigrant

Responsibility Act of 1996 (‘‘the Act’’).

Section 321 of the Act amends the

definition of ‘‘aggravated felony’’ in the

Immigration and Nationality Act in

several different ways including adding

to the definition the crimes of rape and

sexual abuse of a minor as well as any

crime of violence for which the term of

imprisonment is at least one year. This

proposed amendment makes the

definition of ‘‘aggravated felony’’ in the

guidelines coextensive with the

amended definition in the Immigration

and Nationality Act.

Section 334 directs the Sentencing

Commission to promulgate amendments

to the sentencing guidelines for offenses

for the crimes of unlawfully remaining

and illegally entering the United States

corresponding to changes made in

statutory penalties for these offenses in

the Violent Crime Control and Law

Enforcement Act of 1994. This proposed

amendment provides for enhanced

penalties for those who unlawfully enter

or remain in the United States following

conviction for an aggravated felony, any

other felony, or three misdemeanor

crimes of violence or controlled

substance offenses. The proposed

amendment also makes clarifying

changes to the commentary.

Proposed Amendment: Section 2L1.2

is amended by deleting subsection (b)

and inserting in lieu thereof the

following:

‘‘(b) Specific Offense Characteristics:

If the defendant previously was

deported after a criminal conviction, or

if the defendant unlawfully remained in

the United States following a removal

order issued after a criminal conviction,

increase as follows (if more than one

applies, use the greater):

(1) If the conviction was for a crime

of violence or controlled substance

offense[, and such conviction was

punishable by more than five years

imprisonment], increase by 16 levels.

(2) If the conviction was for any other

aggravated felony, increase by [10, 12]

levels.

(3) If the conviction was for (A) any

other felony, [other than a felony

involving violation of the immigration

laws], or (B) three or more

misdemeanors that were either crimes of
8494 Federal Register / Vol. 62, No. 37 / Tuesday, February 25, 1997 / Notices

violence or controlled substance

offenses, increase by 4 levels.’’.

The Commentary to § 2L1.2 captioned

‘‘Application Notes’’ is amended by

deleting Notes 3 and 4 in their entirety;

by renumbering Notes 1 and 2 as Notes

2 and 3 and by inserting the following

as a new Note 1:

‘‘1. For purposes of this guideline—

‘Deported after a conviction,’ means that

the deportation was subsequent to the

conviction, whether or not the

deportation was in response to such

conviction. An alien has previously

been ‘deported’ if he or she has been

removed or has departed the United

States while an order of exclusion,

deportation, or removal was

outstanding. ‘Remains in the United

States following a removal order issued

after a conviction,’ means that the

removal order was subsequent to the

conviction, whether or not the removal

order was in response to such

conviction. ‘Aggravated felony,’ is

defined at 8 U.S.C. 1101(a)(43) [without

regard to the date of conviction of the

aggravated felony]. ‘Crime of violence,’

and ‘controlled substance offense’ are

defined in § 4B1.2. [‘Punishable by more

than five years imprisonment,’ as used

in subsection (b)(1) means that the

aggravated felony offense of conviction

had a maximum term of imprisonment

exceeding five years.] For purposes of

subsection (b)(3), ‘crime of violence’

includes offenses punishable by

imprisonment for a term of one year or

less.’’.

The Commentary to § 2L1.2 captioned

‘‘Application Notes’’ is amended in

Note 5 by deleting ‘‘(b)(1) or (b)(2)’’ and

inserting in lieu thereof ‘‘(b)’’; and by

redesignating Note 5 as Note 4.’’.

The Commentary to § 2L1.2 captioned

‘‘Application Notes’’ is amended by

deleting Notes 6 and 7 in their entirety.

4. Synopsis of Proposed Amendment:

The proposed amendment implements

sections 108 and 216 of the Illegal

Immigration and Immigrant

Responsibility Act of 1996 (‘‘the Act’’).

Section 108 creates a new crime, at 18

U.S.C. 758, for fleeing or evading a law

enforcement checkpoint at high speed.

This proposed amendment changes

Appendix A to reference the new

offense to § 2A2.4. Section 216 of the

Act creates a new crime, at 18 U.S.C.

611, for voting by any alien in a federal

election. This proposed amendment

changes Appendix A to reference the

new offense to § 2H2.1.

Appendix A is amended by inserting

the following at the appropriate place by

title and section:

‘‘18 U.S.C. § 611 2H2.1’’,

‘‘18 U.S.C. § 758 2A2.4’’.

Reckless Endangerment During Flight

5. Synopsis of Proposed Amendment:

The proposed amendment provides a

minimum offense level of either 18, 19,

or 20 for any offense where the

defendant recklessly created a

substantial risk of death or bodily injury

to another person in the course of

fleeing from a law enforcement officer.

This proposed amendment was

requested by the Department of Justice

and is consistent with the approach

taken by the Commission in the

proposed amendment to the alien

smuggling guideline, published in the

Federal Register on January 2, 1997.

That amendment provides minimum

offense levels when a defendant creates

a substantial risk of death or bodily

injury in the course of an alien

smuggling offense.

Section 3C1.2 is amended by inserting

after the ‘‘2 levels’’ the following:

‘‘, but if the resulting offense level is

less than level [18–20], increase to level

[18–20]’’ following ‘‘2 levels’’.

6(A). Synopsis of Proposed

Amendment: This amendment

addresses several new offenses,

including the offense of interstate

stalking, 18 U.S.C. 2261A, which was

recently enacted in section 1069 of the

Defense Authorization Act for Fiscal

Year 1997. That offense makes it

unlawful to travel across a State line or

within Federal jurisdiction with the

intent to injure or harass another person

and, in the course of such travel, to

place that person in reasonable fear of

death or serious bodily injury to that

person or that person’s immediate

family. The maximum term of

imprisonment for violation of the statute

is (A) 5 years, (B) 10 years, if serious

bodily injury occurred or a dangerous

weapon was used, (C) 20 years, if

permanent disfigurement or life

threatening bodily injury occurred, or

(D) any term of years or life, if the

victim dies.

Two options are presented. Option

One references the new offense in the

Statutory Index to various Chapter Two

offense guidelines that the Commission

has concluded will most likely cover the

underlying conduct embodied in the

federal stalking offense, including minor

assault, aggravated assault, rape, and

murder. This approach is consistent

with the approach the Commission

adopted two years ago with respect to

the federal domestic violence offenses,

18 U.S.C. 2261–62.

In addition, the minor assault

guideline, § 2A2.3, is amended in

several respects by Option One to

provide a more appropriate and

sufficiently severe offense level for

offenses sentenced under that guideline.

First, the amendment proposes to

increase the base offense level to [9], if

bodily injury occurred or if a dangerous

weapon was possessed and its use was

threatened, or [6], otherwise. Second,

the amendment provides an

enhancement if the offense involved

stalking. Third, the amendment adds a

cross reference to the aggravated assault

guideline, § 2A2.2, if the conduct

involved aggravated assault.

In order to most efficiently provide

the same increase in offense level for the

minor assault guideline that deals with

obstructing or impeding an officer,

§ 2A2.4, Option One consolidates that

guideline with the minor assault

guideline, § 2A2.3.

Option One also incorporates

repetitive stalking conduct and the

violation of a court protection order into

the threatening communications

guideline, § 2A6.1. It expressly provides

for the grouping of multiple counts

involving the same victim (in order to

avoid double counting with the multiple

act enhancement). A cross reference is

provided in that guideline to apply the

Chapter Two offense guideline most

appropriate to the underlying conduct,

if the resulting offense level is greater.

Option Two refers the new offense

only to the threatening communications

guideline, § 2A6.1, and reworks that

guideline to better take into account the

variety of offenses covered by the

expanded guideline. Option Two

provides an enhancement for the

commission of repetitive acts of stalking

and threatening communication and for

the violation of a court protection order.

It expressly provides for the grouping of

multiple counts involving such conduct

with respect to the same victim (in order

to avoid double counting with the

multiple act enhancement and to

address a recurring case law and hotline

issue). It also provides for a cross

reference to other Chapter Two offense

guidelines covering crimes against the

person, if the resulting offense level is

higher. The cross reference is provided

to cover circumstances in which

offenses covered by the guideline,

particularly stalking, involve underlying

crimes of violence.

Option Two also adds an

enhancement to the minor and

aggravated assault guidelines if the

offense involved the violation of a court

protection order. This change is

proposed in order to better ensure an

adequate offense level for offenses,

particularly domestic violence offenses

under 18 U.S.C. 2261, 2262, in which

such conduct is often a factor. In

addition, Option Two references

offenses under 18 U.S.C. 2262 to the
Federal Register / Vol. 62, No. 37 / Tuesday, February 25, 1997 / Notices 8495

threatening communications guideline

(to cover cases involving repetitive

harassment in violation of a protection

order) and incorporates the definition of

‘‘bodily injury’’ statutorily applicable to

such cases.

Both options also address several new

harassing telecommunications offenses,

47 U.S.C. 223(a)(1)(C)–(E), which were

enacted in section 502 of the

Telecommunications Act of 1996. The

new offenses, which carry a maximum

term of imprisonment of two years,

make it unlawful to:

(C) Make a telephone call or utilize a

telecommunications device, whether or

not conversation or communication

ensues, without disclosing one’s

identity and with intent to annoy,

abuse, threaten, or harass any person at

the called number or who receives the

communication;

(D) Make or cause the telephone of

another repeatedly or continuously to

ring, with intent to harass any person at

the called number; or

(E) Make repeated telephone calls or

repeatedly initiate communication with

a telecommunications device, during

which conversation or communication

ensues, solely to harass any person at

the called number or who receives the

communication.

Both options reference the new

telecommunications offenses to the

threatening communications guideline

and amend that guideline to provide a

lower offense level if the offense

involved only harassment

unaccompanied by a threat or stalking.

Both options also address a circuit

conflict regarding the enhancement in

the threatening communication

guideline that provides for a 6-level

increase if the offense involved any

conduct evidencing an intent to carry

out a threat. Specifically, the conflict is

whether or not conduct which occurred

prior to the making of a threat can

evidence an intent to carry out the

threat. Compare United States v.

Hornick, 942 F.2d 105 (2d Cir. 1991) (‘‘a

person cannot take action that will

constitute proof of his intent to carry out

a threat until after the threat has been

made’’) with United States v. Gary, 18

F.3d 1123 (4th Cir. 1994) (‘‘any acts that

evidence an intent to carry out the

threats on which a conviction is

predicated, whether committed prior to

or following such threats, may form the

basis of the § 2A6.1(b)(1) adjustment’’);

United States v. Sullivan, 75 F.3d 297

(7th Cir. 1996); United States v. Hines,

26 F.3d 1469 (9th Cir. 1994); United

States v. Taylor, 88 F.3d 938 (11th Cir.

1996) (‘‘the essential inquiry for

§ 2A6.1(b)(1) is whether the facts of the

case, taken as a whole, establish a

sufficiently direct connection between

the defendant’s pre-threat conduct and

his threat’’). Both options essentially

adopt the Eleventh Circuit’s view by

adding an application note to provide

that conduct other than the offense of

conviction and relevant conduct under

§ 1B1.3 may be considered in

determining the application of the

guideline’s enhancements if there is a

sufficient, direct connection between

that other conduct and the offense of

conviction.

Proposed Amendment: Option One:

Section 2A2.3 is amended in the title by

inserting ‘‘; Obstructing or Impeding

Officers’’ after ‘‘Minor Assault’’.

Section 2A2.3(a)(1) is amended by

deleting ‘‘6’’ and inserting in lieu

thereof ‘‘[9]’’; and by deleting ‘‘physical

contact’’ and inserting in lieu thereof

‘‘bodily injury’’.

Section 2A2.3(a)(2) is amended by

deleting ‘‘3’’ and inserting in lieu

thereof ‘‘[6]’’.

Section 2A2.3(b) is amended by

deleting ‘‘Characteristic’’ and inserting

in lieu thereof ‘‘Characteristics’’; and by

adding at the end the following:

‘‘(2) If the offense involved (A) [two

or more] instances of stalking, or (B)

violation of a court protection order,

increase by [2,3] levels.

(3) If the offense involved obstructing

or impeding a governmental officer in

the performance of his duties, increase

by 3 levels.

(c) Cross Reference.

(1) If the offense involved aggravated

assault, apply § 2A2.2 (Aggravated

Assault).’’.

The Commentary to § 2A2.3 captioned

‘‘Application Notes’’ is amended in

Note 1 by inserting ‘‘For purposes of

this guideline—’’ before ‘‘ ‘Minor

Assault’ ’’.

The Commentary to § 2A2.3 captioned

‘‘Application Notes’’ is amended in

Note 2 by deleting ‘‘2.’’.

The Commentary to § 2A2.3 captioned

‘‘Application Notes’’ is amended in

Note 3 by adding at the end the

following new paragraph:

‘‘ ‘Stalking’ means traveling with the

intent to injure or harass another person

and, in the course of, or as a result, of

such travel, placing the person in

reasonable fear of death or serious

bodily injury to the person or the

person’s immediate family. See 18

U.S.C. 2261A. ‘Immediate family’ has

the meaning set forth in 18 U.S.C.

115(c)(2).’’.

The Commentary to § 2A2.3 captioned

‘‘Application Notes’’ is amended in

Note 3 by deleting ‘‘3.’’; by deleting

‘‘ ′bodily’’ and inserting in lieu thereof

‘‘bodily’’; and by deleting ‘‘faculty.′ ’’

and inserting in lieu thereof ‘‘faculty.

See’’.

The Commentary to § 2A2.3 captioned

‘‘Application Notes’’ is amended by

adding at the end the following new

notes:

‘‘3. Subsection (b)(3) reflects the fact

that the victim was a governmental

officer performing official duties. If

subsection (b)(3) applies, do not apply

§ 3A1.2 (Official Victim) unless the

offense level is determined by use of the

cross reference in subsection (c).

4. The offense level under this

guideline does not assume any

significant disruption of governmental

functions. In situations involving such

disruption, an upward departure may be

warranted. See § 5K2.7 (Disruption of

Governmental Functions).’’.

Chapter Two, Part A, Subpart 6 is

amended in the title by inserting ‘‘or

Harassing’’ after ‘‘Threatening’’.

Section 2A6.1 is deleted in its entirety

and the following inserted in lieu

thereof:

‘‘§ 2A6.1. Threatening or Harassing

Communications.

(a) Base Offense Level: [12].

(b) Specific Offense Characteristics.

(1) If the offense involved any

conduct evidencing an intent to cause

bodily injury or to carry out a threat,

increase by [6] levels.

(2) If the defendant[, or another

person for whose conduct the defendant

is accountable under § 1B1.3 (Relevant

Conduct),] committed [two or more]

instances of stalking, or making a

threatening communication to, the same

victim, (or a combination of [two or

more] instances of stalking, and making

a threatening communication to, the

same victim), increase by [2] levels.

(3) If the defendant[, or another

person for whose conduct the defendant

is accountable under § 1B1.3 (Relevant

Conduct),] violated a court protection

order, increase by [2] levels.

(4) If subdivisions (1), (2), and (3) do

not apply, and the offense involved (A)

a single instance evidencing little or no

deliberation, or (B) harassing

communication that did not involve a

threat or stalking, decrease by [4] levels.

(c) Cross Reference.

(1) If the offense involved conduct

covered by another offense guideline

from Chapter Two, Part A (Offenses

Against the Person), apply that offense

guideline, if the resulting offense level

is greater than that determined above.

Commentary

Statutory Provisions: 18 U.S.C. 871,

876, 877, 878(a), 879; 47 U.S.C.

223(a)(1)(C)–(E). For additional statutory

provision(s), see Appendix A (Statutory

Index).
8496 Federal Register / Vol. 62, No. 37 / Tuesday, February 25, 1997 / Notices

Application Notes:

1. For purposes of this guideline—

‘‘Stalking’’ means traveling with the

intent to injure or harass another person

and, in the course of, or as a result of,

such travel, placing the person in

reasonable fear of death or serious

bodily injury to the person or the

person’s immediate family. ‘‘Immediate

family’’ has the meaning set forth in 18

U.S.C. 115(c)(2).

2. In determining whether subsections

(b)(1), (b)(2), and (b)(3) apply, the court

shall consider any conduct that

occurred prior to or during the offense;

however, conduct that occurred prior to

the offense must be sufficiently, directly

connected to the offense, under the facts

of the case taken as a whole. For

example, if a defendant engaged in

several acts of mailing threatening

letters to the same victim over a period

of years, then for purposes of

determining whether or not subsections

(b)(1), (b)(2), and (b)(3) apply, the court

shall consider each prior act of mailing

threatening letters to the victim, and the

conduct surrounding that act, but only

if there is a sufficient, direct connection

between the prior act and the offense.

For purposes of Chapter Three, Part D

(Multiple Counts), multiple counts

involving making a threatening or

harassing communication to the same

victim are grouped together under

§ 3D1.2 (Groups of Closely Related

Counts). Multiple counts involving

different victims are not to be grouped

under § 3D1.2.

If the defendant was convicted of (A)

[numerous][more than two] counts of

making a threatening or harassing

communication to the same victim, or

(B) only one such count but the court

determines that the offense involved

[numerous][more than two] acts of

making a threatening or harassing

communication to the same victim, an

upward departure may be warranted.

3. Prior convictions resulting in an

enhancement under subsection (b)(2) or

(b)(3) are also counted for purposes of

determining criminal history points

pursuant to Chapter Four, Part A

(Criminal History).

4. The Commission recognizes that

this offense includes a particularly wide

range of conduct and that it is not

possible to include all of the potentially

relevant circumstances in the offense

level. Factors not incorporated in the

guideline may be considered by the

court in determining whether a

departure from the guidelines is

warranted. See Chapter Five, Part K

(Departures).

Background: ‘‘These statutes cover a

wide range of conduct, including

harassing but nonthreatening phone

calls and threats to a government

official. Because of the wide range of

conduct covered by these statutes, the

appropriate offense level under this

guideline largely depends upon the

defendant’s intent, the likelihood that

the defendant would carry out a threat

or injure the victim, and whether or not

stalking or the violation of a court

protection order was involved. The

specific offense characteristics are

intended to distinguish such cases.’’.

Appendix A (Statutory Index) is

amended by inserting the following at

the appropriate place by title and

section:

‘‘18 U.S.C. § 2261A 2A1.1, 2A1.2,

2A1.3, 2A1.4, 2A2.1, 2A2.2, 2A2.3,

2A4.1, 2B1.3, 2B3.2, 2K1.4.’’.

Option Two: Section 2A2.2(b) is

amended by adding at the end the

following:

‘‘(5) If the offense involved the

violation of a court protection order,

increase by [2] levels.’’.

Section 2A2.3(b) is amended by

deleting ‘‘Characteristic’’ and inserting

in lieu thereof ‘‘Characteristics’’; and by

adding at the end the following:

‘‘(2) If the offense involved the

violation of a court protection order,

increase by [2] levels.’’.

Chapter Two, Part A, Subpart 6 is

amended in the title by deleting

‘‘Threatening Communications’’ and

inserting in lieu thereof ‘‘Threatening or

Harassing Communications and

Stalking’’.

Section 2A6.1 is deleted in its entirety

and the following inserted in lieu

thereof:

‘‘§ 2A6.1. Threatening or Harassing

Communications; Stalking.

(a) Base Offense Level: [12].

(b) Specific Offense Characteristics.

(1) If the defendant[, or another

person for whose conduct the defendant

is accountable under § 1B1.3 (Relevant

Conduct),] committed [two or more]

instances of stalking, or making a

threatening communication to, the same

victim, (or a combination of [two or

more] instances of stalking, and making

a threatening communication to, the

same victim), increase by [2] levels.

(2) If the defendant[, or another

person for whose conduct the defendant

is accountable under § 1B1.3 (Relevant

Conduct),] violated a court protection

order, increase by [2] levels.

(3) If the defendant[, or another

person for whose conduct the defendant

is accountable under § 1B1.3 (Relevant

Conduct),] engaged in any conduct

evidencing an intent to carry out the

threat made in a threatening

communication or to cause bodily

injury, increase by [6] levels.

(4) If subdivisions (1), (2), and (3) do

not apply, and the offense involved (A)

a single instance evidencing little or no

deliberation, or (B) only harassing

communication that did not involve a

threatening communication or stalking,

decrease by [4–8] levels.

(c) Cross Reference.

(1) If the offense involved conduct

covered by another offense guideline

from Chapter Two, Part A (Offenses

Against the Person), apply that offense

guideline, if the resulting offense level

is greater than that determined above.

Commentary

Statutory Provisions: 18 U.S.C. 871,

876, 877, 878(a), 879, 2261A; 47 U.S.C.

223(a)(1)(C)–(E). For additional statutory

provision(s), see Appendix A (Statutory

Index).

Application Notes:

1. For purposes of this guideline—

‘‘Bodily injury’’ means any act, except

one done in self defense, that results in

physical injury or sexual abuse. See 18

U.S.C. 2266.

‘‘Stalking’’ means traveling with the

intent to injure or harass another person

and, in the course of, or as a result of,

such travel, placing the person in

reasonable fear of death or serious

bodily injury to the person or the

person’s immediate family. See 18

U.S.C. 2261A. ‘‘Immediate family’’ has

the meaning set forth in 18 U.S.C.

115(c)(2).

2. In determining whether subsections

(b)(1), (b)(2), and (b)(3) apply, the court

shall consider any conduct that

occurred prior to or during the offense;

however, conduct that occurred prior to

the offense must be sufficiently, directly

connected to the offense, under the facts

of the case taken as a whole. For

example, if a defendant engaged in

several acts of stalking the same victim

over a period of years, then for purposes

of determining whether or not

subsections (b)(1), (b)(2) and (b)(3)

apply, the court shall consider each

prior act of stalking the victim, and the

conduct surrounding that act, but only

if there is a sufficient, direct connection

between the prior act and the offense.

For purposes of Chapter Three, Part D

(Multiple Counts), multiple counts

involving stalking of, or threatening or

harassing communication to, the same

victim are grouped together under

§ 3D1.2 (Groups of Closely Related

Counts). Multiple counts involving

different victims are not to be grouped

under § 3D1.2.

If the defendant was convicted of (A)

[numerous][more than two] counts of

stalking or of threatening or harassing

communications, or (B) only one such

count but the court determines that the
Federal Register / Vol. 62, No. 37 / Tuesday, February 25, 1997 / Notices 8497

offense involved [numerous][more than

two] acts of stalking or threatening or

harassing communications, an upward

departure may be warranted.

3. Prior convictions resulting in an

enhancement under subsection (b)(1) or

(b)(2) are also counted for purposes of

determining criminal history points

pursuant to Chapter Four, Part A

(Criminal History).

4. The Commission recognizes that

this offense includes a particularly wide

range of conduct and that it is not

possible to include all of the potentially

relevant circumstances in the offense

level. Factors not incorporated in the

guideline may be considered by the

court in determining whether a

departure from the guidelines is

warranted. See Chapter Five, Part K

(Departures).

Background: These statutes cover a

wide range of conduct, including

harassing but nonthreatening phone

calls, threats to a government official,

and repeated acts of stalking with intent

to injure the victim. Because of the wide

range of conduct covered by these

statutes, the appropriate offense level

under this guideline largely depends

upon the defendant’s intent, the

likelihood that the defendant would

carry out a threat or injure the victim,

and whether or not the conduct is

repetitive. The specific offense

characteristics are intended to

distinguish such cases.’’.

Appendix A (Statutory Index) is

amended in the item referenced to 18

U.S.C. 2262 by inserting ‘‘2A6.1,’’ after

‘‘2A4.1,’’; and by inserting the following

at the appropriate place by title and

section:

‘‘18 U.S.C. 2261A 2A6.1

47 U.S.C. 223(a)(1)(C)–(E) 2A6.1’’.

(B). Issues for Comment: The

Commission requests comment on

alternative ways to address the new

federal stalking offense at 18 U.S.C.

2261A. For example, instead of

incorporating the stalking offense into

the threatening communications

guideline (§ 2A6.1), as proposed above,

should the Commission reference the

stalking offense to the assault

guidelines? If so, what changes, if any,

are appropriate to make to the assault

guidelines to adequately cover the

stalking offense?

Currently, counts of conviction of

offenses covered by § 2A6.1 are

excluded from the application of

§ 3D1.2(d) but may be groupable under

§ 3D1.2(b). The Second and Eleventh

Circuits, however, have held that such

counts of conviction are not groupable

under § 3D1.2(b) because the conduct

covered by such counts inflicts distinct

psychological harms upon the victim.

See United States v. Miller, 993 F.2d 16

(2d Cir. 1993); United States v. Bonner,

85 F.3d 522 (11th Cir. 1996). The

amendment proposed above adds an

enhancement in subsection (b) for

multiple incidents and expressly

provides for grouping under § 3D1.2.

The Commission requests comment on

how multiple instances of stalking,

threatening, or harassing the same

victim should be treated under the

guidelines.

The Commission also requests

comment on whether, in determining

the offense level under this guideline,

the court should be able to take into

account certain prior conduct ordinarily

not considered to be part of the offense.

Currently, there is a circuit conflict on

whether or not conduct which occurred

prior to the making of a threat can

evidence an intent to carry out the

threat for purposes of this guideline.

Compare United States v. Hornick, 942

F.2d 105 (2d Cir. 1991) (‘‘a person

cannot take action that will constitute

proof of his intent to carry out a threat

until after the threat has been made’’)

with United States v. Gary, 18 F.3d 1123

(4th Cir. 1994) (‘‘any acts that evidence

an intent to carry out the threats on

which a conviction is predicated,

whether committed prior to or following

such threats, may form the basis of the

§ 2A6.1(b) (1) adjustment’’); United

States v. Sullivan, 75 F.3d 297 (7th Cir.

1996); United States v. Hines, 26 F.3d

1469 (9th Cir. 1994); United States v.

Taylor, 88 F.3d 938 (11th Cir. 1996)

(‘‘the essential inquiry for § 2A6.1(b)(1)

is whether the facts of the case, taken as

a whole, establish a sufficiently direct

connection between the defendant’s prethreat conduct and his threat’’). The

amendment proposed above adds an

application note to provide that conduct

occurring prior to the offense is to be

considered in determining the

application of the guideline’s

enhancements if there is a sufficient,

direct connection between that prior

conduct and the offense.

The Commission further requests

comment on whether the definition of

aggravated assault in the commentary to

§ 2A2.2 should be amended to eliminate

the requirement that intent to do bodily

injury be present in an assault involving

a dangerous weapon in order for that

assault to be considered ‘‘aggravated’’,

rather than ‘‘minor’’, under the

guidelines.

Chapter Two, Parts B and F

7. Synopsis of Proposed Amendment:

This amendment adds Commentary to

§§ 2B1.1 (Larceny, Embezzlement, and

Other Forms of Theft; Receiving,

Transporting, Transferring,

Transmitting, or Possessing Stolen

Property); 2B1.3 (Property Damage or

Destruction); 2B2.3 (Trespass); 2B3.2

(Extortion by Force or Threat of Injury

or Serious Damage); and 2F1.1 (Fraud

and Deceit; Forgery; Offenses Involving

Altered or Counterfeit Instruments

Other than Counterfeit Bearer

Obligations of the United States).

Specific offense characteristics are

added to §§ 2B1.1 and 2B2.3. Also,

special instructions are added to

§§ 2B1.3 and 2F1.1.

This amendment also addresses

several new statutes including: 18

U.S.C. 1030(a)(7), which prohibits

extortion by threats to damage or impair

a non-public government computer or a

computer of a financial institution (18

U.S.C. 1030(e)(2) (A) or (B)); 18 U.S.C.

1831, which prohibits ‘‘economic

espionage’’; and 18 U.S.C. 1832, which

prohibits theft of ‘‘trade secrets’’ as

broadly defined at 18 U.S.C. 1839.

Offenses under 18 U.S.C. 1030(a)(7) are

referenced to the extortion guideline

2B3.2; offenses under 18 U.S.C. 1031

and 1832 are referenced to § 2B1.1

(Larceny, Embezzlement, and Other

Forms of Theft).

A specific offense characteristic has

been added to § 2B1.1 to increase

offense levels for those defendants who

misappropriate a trade secret with the

knowledge that the information will

benefit a foreign government. This

behavior is ‘‘economic espionage’’ as

proscribed by 18 U.S.C. 1831. Congress

set a maximum sentence of 15 years for

those convicted of ‘‘economic

espionage’’. A maximum sentence of ten

years was set forth for those convicted

of ‘‘theft of trade secrets’’. The proposed

2-level increase for ‘‘economic

espionage’’ is in recognition of

Congress’’ assessment that providing a

victim’s trade secrets to foreign interests

is a more serious offense than providing

that victim’s trade secrets to a domestic

competitor.

A specific offense characteristic has

been added to § 2B2.3 which will

increase the offense levels for those who

trespass in a non-public database to the

extent that the trespass creates financial

loss as measured by the table in § 2B1.1.

Special instructions have been added

to §§ 2B1.3 and 2F1.1 to the effect that

the minimum guideline sentence for

those convicted under 18 U.S.C. 1030(a)

(4) and (5) is six months’’

imprisonment. This has been done

pursuant to Congress’’ direction in the

Antiterrorism and Effective Death

Penalty Act of 1996.

Salient among the commentary

changes is an addition to § 2B1.1,

Application Note 2, which expands the

definition of ‘‘loss’’ for unlawfully
8498 Federal Register / Vol. 62, No. 37 / Tuesday, February 25, 1997 / Notices

accessing, or exceeding authorized

access to, a ‘‘protected computer’’ as

defined in 18 U.S.C. 1030(e)(2) (A) or

(B). ‘‘Loss’’ in that context will now

include ‘‘the reasonable cost to the

victim of conducting a damage

assessment, restoring the system and

data to their condition prior to the

offense, and any lost revenue or costs

incurred due to interruption of service.’’

Upward departures are invited in

§ 2B1.1, Application Notes 15 and 16,

where unauthorized access to a

computer invades a substantial privacy

interest or is in furtherance of a

‘‘broader criminal purpose’’.

Finally, this amendment changes the

Statutory Index reference for computer

crimes under 18 U.S.C. 1030(a)(2)(3)

and (5) from the fraud guideline,

§ 2F1.1, to more appropriate subsections

of Part B—Offenses Involving Property.

These new references accommodate

changes made to 18 U.S.C. 1030 by the

National Information Infrastructure

Protection Act of 1996.

Proposed Amendment: Section

2B1.1(b) is amended by inserting at the

end the following new subdivision:

‘‘(7) If the offense involved

misappropriation of a trade secret and

the defendant knew or intended that the

offense would benefit any foreign

government, foreign instrumentality, or

foreign agent, increase by [2] levels.’’.

The Commentary to § 2B1.1 captioned

‘‘Application Notes’’ is amended in

Note 1 by inserting as the second and

third sentences the following:

‘‘‘Trade secret’ is defined in 18 U.S.C.

1839(3). ‘‘Foreign instrumentality’’ and

‘‘foreign agent’’ are defined in 18 U.S.C.

§ 1839 (1) and (2), respectively.’’.

The Commentary to § 2B1.1 captioned

‘‘Application Notes’’ is amended in

Note 2 by inserting after the fourth

paragraph the following new paragraph:

‘‘In an offense involving unlawfully

accessing, or exceeding authorized

access to, a ‘protected computer’ as

defined in 18 U.S.C. 1030(e)(2) (A) or

(B), ‘‘loss’’ includes the reasonable cost

to the victim of conducting a damage

assessment, restoring the system and

data to their condition prior to the

offense, and any lost revenue due to

interruption of service.’’.

The Commentary to § 2B1.1 captioned

‘‘Application Notes’’ is amended by

inserting at the end the following new

notes:

‘‘15. In cases where the loss

determined under subsection (b)(1) does

not fully capture the harmfulness of the

conduct, an upward departure may be

warranted. For example, the theft of

personal information or writings (e.g.,

medical records, educational records, a

diary) may involve a substantial

invasion of a privacy interest that would

not be addressed by the monetary loss

provisions of subsection (b)(1).

16. In cases involving theft of

information from a ‘‘protected

computer’’, an upward departure may

be warranted where the defendant

sought the stolen information to further

a broader criminal purpose.’’.

Section 2B1.3 is amended by inserting

after subsection (c) the following new

subsection:

‘‘(d) Special Instruction

‘‘(1) If the defendant is convicted

under 18 U.S.C. 1030(a)(5), the

minimum guideline sentence,

notwithstanding any other adjustment,

shall be six months’ imprisonment.’’.

The Commentary to § 2B1.3 is

amended by inserting at the end the

following:

‘‘Background: Subsection (d)

implements the instruction to the

Commission in section 805(c) of Public

Law 104–132.’’.

Section 2B2.3(b) is amended by

inserting after subdivision (2) the

following new subdivision:

‘‘(3) If the offense involved invasion

of a protected computer resulting in a

loss exceeding [$2000], increase by the

corresponding number of levels from

the table in § 2F1.1.’’.

The Commentary to § 2B2.3 captioned

‘‘Application Note’’ is amended in Note

1 by inserting ‘‘For purposes of this

guideline—’’ before ‘‘‘Firearm’’’; and by

inserting as the second paragraph the

following:

‘‘‘Protected computer’ means a

computer described in 18 U.S.C.

1030(e)(2)(A) or (B).’’.

The Commentary to § 2B2.3 captioned

‘‘Application Note’’ is amended by

inserting the following additional note:

‘‘2. Valuation of loss is discussed in

the Commentary to § 2B1.1 (Larceny,

Embezzlement, and Other Forms of

Theft).’’.

The Commentary to § 2B2.3 captioned

‘‘Application Note’’ is amended by

deleting ‘‘Note’’ and inserting in lieu

thereof ‘‘Notes’’.

The Commentary to § 2B3.2 captioned

‘‘Background’’ is amended by inserting

the following sentence at the end:

‘‘This guideline also applies to

offenses under 18 U.S.C. 1030(a)(7)

involving a threat to impair the

operation of a ‘protected computer.’’’.

Section 2F1.1 is amended by inserting

the following new subsection:

‘‘(c) Special Instruction

(1) If the defendant is convicted under

18 U.S.C. 1030(a)(4), the minimum

guideline sentence, notwithstanding any

other adjustment, shall be six months’

imprisonment.’’.

The Commentary to § 2F1.1 captioned

‘‘Background’’ is amended by inserting

as the last paragraph the following:

‘‘ Subsection (c) implements the

instruction to the Commission in

section 805 (c) of Public Law 104–132.’’.

Appendix A (Statutory Index) is

amended by inserting, in the

appropriate place by title and section,

the following:

‘‘18 U.S.C. 1831 2B1.1’’;

‘‘18 U.S.C. 1832 2B1.1’’;

‘‘18 U.S.C. 1030(a)(7) 2B3.2’’;

In the line referenced to ‘‘18 U.S.C.

1030(a)(2)’’ by deleting ‘‘2F1.1’’ and

inserting in lieu thereof ‘‘2B1.1’’;

In the line referenced to ‘‘18 U.S.C.

1030(a)(3)’’ by deleting ‘‘2F1.1’’ and

inserting in lieu thereof ‘‘2B2.3’’;

In the line referenced to ‘‘18 U.S.C.

1030(a)(5)’’ by deleting ‘‘2F1.1’’ and

inserting in lieu thereof ‘‘2B1.3’’.

8(A). Synopsis of Proposed

Amendment: The Drug-Induced Rape

Prevention Act of 1996 raises the

penalty for offenses involving trafficking

in flunitrazepam, a Schedule IV

controlled substance, from a maximum

of three years’ imprisonment for any

amount of the drug to 20 years’

imprisonment for one gram of

flunitrazepam and to not more than five

years’ imprisonment for 30 milligrams

of flunitrazepam. The maximum

sentence for importing and exporting

offenses involving flunitrazepam is

raised to twenty years’ imprisonment

regardless of weight.

The Act also instructs the Sentencing

Commission to ‘‘review and amend as

appropriate the sentencing guidelines

for offenses involving flunitrazepam’’

and to ensure the guidelines reflect the

serious nature of offenses involving

flunitrazepam.

Under the revised statute, trafficking

in precisely one gram of flunitrazepam

will have a maximum penalty of 20

years’ imprisonment and trafficking in

precisely 30 milligrams of flunitrazepam

will have a maximum of five years’

imprisonment. Trafficking in any

amount other than those specified will

be governed by 21 U.S.C.

841(b)(1)(C)(2), which provides a

maximum penalty for Schedule IV

controlled substances of not more than

three years’ imprisonment.

The following proposed amendment

assumes Congress meant to treat

flunitrazepam in the trafficking statute

as it did in the export/import statute

(i.e., raise the maximum penalty from

three to twenty years’ imprisonment).

Accordingly, this amendment treats

flunitrazepam as a Schedule I and II

depressant because Schedule I and II

depressants also carry a maximum

penalty of twenty years’ imprisonment.
Federal Register / Vol. 62, No. 37 / Tuesday, February 25, 1997 / Notices 8499

The offense levels are bracketed to

indicate the possibility that the offense

levels ultimately adopted for

flunitrazepam may be higher than those

indicated in this amendment.

The Act also raises the maximum

sentence for simple possession of

flunitrazepam from one year’s

imprisonment to three years. The new

statute treats the simple possession of

flunitrazepam as more serious than the

simple possession of personal amounts

of any other controlled substance, in

that it establishes a three-year maximum

sentence of imprisonment as compared

to one year for all other controlled

substances (except 5 or more grams of

crack).

There are two options for addressing

the increase in the maximum sentence

for simple possession of flunitrazepam.

Currently, flunitrazepam has a base

offense level of 4. The first option is to

treat flunitrazepam the same as the

simple possession of other Schedule I

and II depressants (as it is in the

proposed trafficking guideline). This

option would effect no change in the

current guideline. The second option, as

shown in the amendment below, is to

change the base offense level for

flunitrazepam from level 4 to level 8.

This option raises the base offense level

to the same base offense level as heroin,

other Schedule I and II opiates, and

cocaine base.

Proposed Amendment: Section

2D1.1(c) (10)–(17) is amended by

inserting ‘‘, Flunitrazepam’’

immediately following ‘‘II Depressants’’

wherever it appears.

Section 2D1.1(c)(14)–(17) is amended

by inserting ‘‘(except Flunitrazepam)’’

immediately following ‘‘Schedule IV

substances’’ wherever it appears.

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

section titled ‘‘*Notes to the Drug

Quantity Table’’ in Note (F) by inserting

‘‘or flunitrazepam’’ following ‘‘II

Depressants’’, and by inserting ‘‘(except

flunitrazepam)’’ following ‘‘IV

substances’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended in

Note 10 in the Drug Equivalency Tables

in the subsection captioned ‘‘Schedule I

or II Depressants**’’ by inserting ‘‘or

Flunitrazepam’’ immediately following

‘‘or II Depressants’’; by inserting ‘‘or

Flunitrazepam’’ immediately following

‘‘II Depressant’’; by inserting ‘‘,

flunitrazepam’’ immediately following

‘‘or II depressants’’; and by inserting

‘‘(except flunitrazepam)’’ immediately

following ‘‘IV substances’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended in

Note 10 in the Drug Equivalency Tables

in the subsection captioned ‘‘Schedule

IV Substances**’’; by inserting ‘‘(except

Flunitrazepam)’’ immediately following

‘‘IV Substances’’; by inserting ‘‘(except

Flunitrazepam)’’ immediately following

‘‘IV Substance’’; and by inserting

‘‘(except flunitrazepam)’’ immediately

following ‘‘Schedule IV’’.

Section 2D2.1(a)(1) is amended by

deleting ‘‘or’’ before ‘‘cocaine’’ and by

inserting ‘‘, or flunitrazepam’’ following

‘‘base’’.

(B). Issue for Comment: The DrugInduced Rape Prevention and

Punishment Act of 1996 included a

section concerning ‘‘date rape’’ and

related crimes. This section amends 21

U.S.C. 841(b) by adding:

Whoever, with intent to commit a

crime of violence, as defined in section

16 of title 18, United States Code

(including rape), against an individual,

violates subsection (a) by distributing a

controlled substance to that individual

without that individual’s knowledge,

shall be imprisoned not more than 20

years and fined in accordance with title

18, United States Code.

‘‘Without the individual’s

knowledge’’ is defined by the statute as

meaning ‘‘that the individual is unaware

that a substance with an ability to alter

that individual’s ability to appraise

conduct or to decline participation in or

communicate unwillingness to

participate in conduct is administered

to the individual.’’.

Currently, the guidelines cover the

commission of violent offenses as well

as attempts to commit these offenses;

they do not have a general mechanism

covering offenses committed with intent

to commit another crime. Section 2A3.1

(Criminal Sexual Abuse) does not

currently include intent but does have

an enhancement for the use of

controlled substances to commit

criminal sexual abuse. Specifically, this

guideline contains a 4-level

enhancement above the base offense

level of 27 for offenses committed by

means listed in 18 U.S.C. 2241 (a) or (b),

which includes the use of drugs or

intoxicants to commit the offense.

The Commission solicits comment as

to how offenses committed under this

section of the Drug Induced Rape

Prevention Act of 1996 should be

included in the guidelines. Should the

Commission treat these offenses as an

attempt and reference them to the

underlying crimes of violence? If these

crimes are seen as something less than

an attempt, how should the guidelines

cover the offenses?

Chapter Two, Part D—Offenses

Involving Drugs

9(A). Synopsis of Proposed

Amendment: Section 101 of the

Comprehensive Methamphetamine

Control Act of 1996 adds listed

chemicals to 21 U.S.C. 959. Section

959(a) makes it unlawful to manufacture

or distribute a schedule I or II controlled

substance intending or knowing that

such substance will be unlawfully

imported into the United States. Section

959(b) makes it unlawful for a United

States citizen, or any person aboard an

aircraft owned by a United States citizen

or an aircraft registered in the United

States, to manufacture, distribute, or

possess with intent to distribute a

controlled substance. The penalty for

such an offense involving a listed

chemical is a fine in accordance with

title 18, United States Code, not more

than ten years’ imprisonment, or both.

This amendment references these

statutes in the Statutory Index to

§ 2D1.11 (Unlawfully Distributing,

Importing, Exporting or Possessing a

Listed Chemical).

Section 201 of the Act makes an

addition to Title 21, United States Code

(simple possession), which states:

It shall be unlawful for any person

knowingly or intentionally to possess

any list I chemical obtained pursuant to

or under authority of a registration

issued to that person . . . if that

registration has been revoked or

suspended, if that registration has

expired, or if the registrant has ceased

to do business in the manner

contemplated by his registration.

This amendment adds list I chemicals

to § 2D2.1 (Unlawful Possession:

Attempt or Conspiracy). This guideline

contains a base offense level of eight for

Schedule I and II opiates, their

analogues, and cocaine base; a base

offense level of 6 for cocaine PCP, and

LSD; and a base offense level of 4 for all

other controlled substances. This

amendment includes list I chemicals

with other controlled substances,

thereby having a base offense level of

four.

Section 209 of the Act makes several

technical changes to 21 U.S.C. 802 by

correcting the spelling for several

precursors. The only correction for the

guidelines is to correct the spelling of

isosafrole, a list I chemical.

Proposed Amendment: Section

2D2.1(a)(3) is amended by inserting ‘‘or

a list I chemical’’ after ‘‘other controlled

substance’’.

Appendix A (Statutory Index) in the

line referenced to ‘‘21 U.S.C. 959’’ is

amended by inserting ‘‘, 2D1.11’’

following ‘‘2D1.1’’.

Appendix A (Statutory Index) is

amended by inserting at the appropriate

place by line and title the following:

‘‘21 U.S.C. 960(d)(7) 2D1.11’’.
8500 Federal Register / Vol. 62, No. 37 / Tuesday, February 25, 1997 / Notices

(B). Issue for Comment: Section 203

amends 21 U.S.C. 843(d) to state that

anyone who violates 21 U.S.C. 843(a) (6)

or (7) (possession, manufacture or

distribution of certain laboratory

equipment) with the intent to

manufacture or facilitate the

manufacture of methamphetamine is

subject to a term of imprisonment of up

to ten years. The statute gives

instructions to the Commission to

amend the sentencing guidelines to

ensure that violations of this section are

treated as a significant violation.

Violations of 21 U.S.C. 843(a) (6) or

(7) currently carry a maximum sentence

of imprisonment of four years and cover

knowing, intending, or having

reasonable cause to believe the

equipment will be used to manufacture

a controlled substance. The guidelines

provide a base offense level of 12 if the

defendant intended to manufacture a

controlled substance and 9 if the

defendant had reasonable cause to

believe the equipment would be used to

manufacture a controlled substance. The

level 12 was used to correspond to the

lowest offense level for

methamphetamine in the Drug Quantity

Table and the lowest level of the

Chemical Quantity Table. Additionally,

the guideline contains a cross reference

to § 2D1.1 if the offense involved the

actual manufacture of a controlled

substance.

The Commission requests comment

on the proper offense level for

possession of equipment (i.e., a roundbottomed three-necked flask, tableting

machine, gelatin capsule, or any

equipment, chemical, product, or

material used to manufacture a

controlled substance) to manufacture

methamphetamine. Should there be an

enhancement if the equipment is used

to manufacture methamphetamine and,

if so, how many levels?

10(A). Synopsis of Proposed

Amendment: This multi-part

amendment implements sections 301

and 303 of the Comprehensive

Methamphetamine Control Act of 1996.

Among other things, the Act generally

instructs the Commission to increase the

penalties for unlawful manufacturing,

importing, exporting and trafficking of

methamphetamine. This amendment is

in four parts, followed by a fifth part

requesting comment.

Part A of this amendment directly

increases the penalties for

methamphetamine by reducing by onehalf the quantity at each offense level

found in the Drug Quantity Table at

§ 2D1.1(c). This proposal has the same

effect on methamphetamine guideline

penalties that would have occurred if

Congress had passed legislation to

reduce by half the quantities to trigger

the mandatory minimum penalties

under 21 U.S.C. 841.

For example, offense level 26, which

is equivalent to the five-year mandatory

minimum sentence, is currently applied

when the amount of methamphetamine

(actual) falls between 10 and 40 grams,

or the amount of methamphetamine

mixture is between 100 and 400 grams.

The amendment reduces the amounts in

question by one-half, to 5 to 20 grams

for methamphetamine (actual) and 50 to

200 grams for methamphetamine

mixture. A corresponding change is

made at level 32, which is equivalent to

the ten-year mandatory minimum

sentence. Other offense levels have been

changed to conform with these changes.

In addition, a conforming change is

made to the drug equivalency tables,

doubling the amount of marijuana to be

used in multi-drug crimes involving

methamphetamine, methamphetamine

(actual), and ‘‘ice.’’

Finally, Note ‘‘(B)’’ following the Drug

Quantity Table is rewritten to

emphasize that the offense level for

methamphetamine (or PCP) mixtures is

to be determined by the quantity

(weight) of the actual controlled

substance in the mixture whenever the

purity can be determined and exceeds

10 percent.

Part B of this amendment proposes,

either as an alternative or an addition to

Part A, changes in the guidelines

directed to the importation of

methamphetamine and precursor

chemicals. These changes would add a

new specific offense characteristic for

the unlawful importation of

methamphetamine or its precursor

drugs. Multiple options regarding the

formulation of this enhancement are

presented. Accompanying commentary

would indicate that this new adjustment

is not to be applied in addition to the

enhancement available under

§ 2D1.1(b)(2), which also relates to

importation. A third option proposes an

alternative approach of an invited

upward departure if the offense

involved importation of

methamphetamine or listed chemicals.

Part C of this amendment proposes,

either as an alternative or an addition to

Part A, changes in the guidelines to

address environmental damage

associated with the manufacture of

methamphetamine. This proposed

amendment adds environmental damage

as a ground for either a specific offense

characteristic enhancement (Option 1)

or an invited upward departure (Option

2) to §§ 2D1.1, 2D1.11, 2D1.12, and

2D1.13.

Congress specifically asked the

Commission to address the adequacy of

penalties for violations of

environmental laws which are covered

by guidelines §§ 2D1.11, 2D1.12, and

2D1.13. Although the drug trafficking

guideline was not specifically addressed

in this directive, it is reasonable for the

Commission to consider similar means

of addressing adverse environmental

impact in guideline § 2D1.1. As a result,

these changes would also affect

sentencing under that guideline.

Part D of this amendment proposes,

either as an alternative or an addition to

Part A, changes to the guidelines which

would add provisions relating to the use

of a special skill in the manufacture of

controlled substances. The amendments

would add language to § 2D1.1

(comment. n. 8) indicating that persons

involved in the illegal manufacture of

controlled substances may be subject to

an enhancement under § 3B1.3 (Abuse

of Position of Trust or Use of a Special

Skill). It also offers, as an option,

eliminating language in existing

guideline § 3B1.3 that currently

prohibits the Special Skill enhancement

from being applied cumulatively with

an enhancement for Aggravating Role.

This change is not limited to

methamphetamine cases, but would

apply to all affected cases.

Part E is a section requesting

comment on specific issues. First, the

section requests comment on other

aggravating factors which distinguish

methamphetamine offenses and which

should be included in the guidelines.

Second, the section requests comment

on how the proposed aggravating factors

(Parts B through D) might be coupled

with lesser penalty increases in Part A.

Third, comment is requested on

whether changes in methamphetamine

penalties as proposed in Part A should

lead to further changes in the Chemical

Quantity Table in § 2D1.11 (Unlawfully

Distributing, Importing, Exporting or

Possessing a Listed Chemical; Attempt

or Conspiracy). (In this regard, it should

be noted that the Commission has

promulgated, effective May 1, 1997, an

emergency amendment that generally

increases the offense levels in the

Chemical Quantity Table by two levels.

This amendment responds to the

congressional directive in section 302 of

the Comprehensive Methamphetamine

Control Act of 1996).

Part A

Proposed Amendment: Section

2D1.1(c)(1) is amended by deleting:

‘‘30 KG or more of Methamphetamine,

or 3 KG or more of Methamphetamine

(actual), or 3 KG or more of ‘Ice’ ’’,

and inserting in lieu thereof:
Federal Register / Vol. 62, No. 37 / Tuesday, February 25, 1997 / Notices 8501

‘‘15 KG or more of Methamphetamine,

or 1.5 KG or more of Methamphetamine

(actual), or 1.5 KG or more of ‘Ice’ ’’.

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

deleting:

‘‘At least 10 KG but less than 30 KG

of Methamphetamine, or at least 1 KG

but less than 3 KG of Methamphetamine

(actual), or at least 1 KG but less than

3 KG of ‘Ice’ ’’,

and inserting in lieu thereof:

‘‘At least 5 KG but less than 15 KG of

Methamphetamine, or at least .5 KG but

less than 1.5 KG of Methamphetamine

(actual), or at least .5 KG but less than

1.5 KG of ‘Ice’ ’’.

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

deleting:

‘‘At least 3 KG but less than 10 KG of

Methamphetamine, or at least 300 G but

less than 1 KG of Methamphetamine

(actual), or at least 300 G but less than

1 KG of ‘Ice’ ’’,

and inserting in lieu thereof:

‘‘At least 1.5 KG but less than 5 KG

of Methamphetamine, or at least 150 G

but less than 500 G of

Methamphetamine (actual), or at least

150 G but less than 500 G of ‘Ice’ ’’.

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

deleting:

‘‘At least 1 KG but less than 3 KG of

Methamphetamine, or at least 100 G but

less than 300 G of Methamphetamine

(actual), or at least 100 G but less than

300 G of ‘Ice’ ’’,

and inserting in lieu thereof:

‘‘At least 500 G but less than 1.5 KG

of Methamphetamine, or at least 50 G

but less than 150 G of

Methamphetamine (actual), or at least

50 G but less than 150 G of ‘Ice’ ’’.

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

deleting:

‘‘At least 700 G but less than 1 KG of

Methamphetamine, or at least 70 G but

less than 100 G of Methamphetamine

(actual), or at least 70 G but less than

100 G of ‘Ice’ ’’,

and inserting in lieu thereof:

‘‘At least 350 G but less than 500 G

of Methamphetamine, or at least 35 G

but less than 50 G of Methamphetamine

(actual), or at least 35 G but less than 50

G of ‘Ice’ ’’.

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

deleting:

‘‘At least 400 G but less than 700 G

of Methamphetamine, or at least 40 G

but less than 70 G of Methamphetamine

(actual), or at least 40 G but less than 70

G of ‘Ice’ ’’,

and inserting in lieu thereof:

‘‘At least 200 G but less than 350 G

or Methamphetamine, or at least 20 G

but less than 35 G of Methamphetamine

(actual), or at least 20 G but less than 35

G of ‘Ice’ ’’.

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

deleting:

‘‘At least 100 G but less than 400 G

of Methamphetamine, or at least 10 G

but less than 40 G of Methamphetamine

(actual), or at least 10 G but less than 40

G of ‘Ice’ ’’,

and inserting in lieu thereof:

‘‘At least 50 G but less than 200 G of

Methamphetamine, or at least 5 G but

less than 20 G of Methamphetamine

(actual), or at least 5 G but less than 20

G of ‘Ice’ ’’.

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

deleting:

‘‘At least 80 G but less than 100 G of

Methamphetamine, or at least 8 G but

less than 10 G of Methamphetamine

(actual), or at least 8 G but less than 10

G of ‘Ice’ ’’,

and inserting in lieu thereof:

‘‘At least 40 G but less than 50 G of

Methamphetamine, or at least 4 G but

less than 5 G of Methamphetamine

(actual), or at least 4 G but less than 5

G of ‘Ice’ ’’.

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

deleting:

‘‘At least 60 G but less than 80 G of

Methamphetamine, or at least 6 G but

less than 8 G of Methamphetamine

(actual), or at least 6 G but less than 8

G of ‘Ice’ ’’,

and inserting in lieu thereof:

‘‘At least 30 G but less than 40 G of

Methamphetamine, or at least 3 G but

less than 4 G of Methamphetamine

(actual), or at least 3 G but less than 4

G of ‘Ice’ ’’.

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

deleting:

‘‘At least 40 G but less than 60 G of

Methamphetamine, or at least 4 G but

less than 6 G of Methamphetamine

(actual), or at least 4 G but less than 6

G of ‘Ice’ ’’,

and inserting in lieu thereof:

‘‘At least 20 G but less than 30 G of

Methamphetamine, or at least 2 G but

less than 3 G of Methamphetamine

(actual), or at least 2 G but less than 3

G of ‘Ice’ ’’.

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

deleting:

‘‘At least 20 G but less than 40 G of

Methamphetamine, or at least 2 G but

less than 4 G of Methamphetamine

(actual), or at least 2 G but less than 4

G of ‘Ice’ ’’,

and inserting in lieu thereof:

‘‘At least 10 G but less than 20 G of

Methamphetamine, or at least 1 G but

less than 2 G of Methamphetamine

(actual), or at least 1 G but less than 2

G of ‘Ice’ ’’.

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

deleting:

‘‘At least 10 G but less than 20 G of

Methamphetamine, or at least 1 G but

less than 2 G of Methamphetamine

(actual), or at least 1 G but less than 2

G of ‘Ice’ ’’,

and inserting in lieu thereof:

‘‘At least 5 G but less than 10 G

Methamphetamine, or at least 500 MG

but less than 1 G of Methamphetamine

(actual), or at least 500 MG but less than

1 G of ‘Ice’ ’’.

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

deleting:

‘‘At least 5 G but less than 10 G of

Methamphetamine, or at least 500 MG

but less than 1 G of Methamphetamine

(actual), or at least 500 MG but less than

1 G of ‘Ice’ ’’,

and inserting in lieu thereof:

‘‘Less than 5 G of Methamphetamine,

or less than 500 MG Methamphetamine

(actual), or less than 500 MG of ‘Ice’ ’’.

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

deleting:

‘‘Less than 5 G of Methamphetamine,

or less than 500 MG of

Methamphetamine (actual), or less than

500 MG of ‘Ice’ ’’.

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

notes following the Drug Quantity Table

by deleting the last sentence in Note B

and inserting in lieu thereof the

following:

‘‘In the case of a mixture or substance

containing PCP or methamphetamine, if

the purity of the mixture or substance

can be determined and exceeds 10

percent, then the weight of the actual

controlled substance in the mixture

shall be used to determine the offense

level. In any other case involving a

mixture or substance containing PCP or

methamphetamine, use the weight of

the mixture containing PCP or

methamphetamine to determine the

offense level.’’.

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended in

Note 10(d) in the Drug Equivalency

Tables in the subdivision captioned

‘‘Cocaine and Other Schedules I and II

Stimulants (and their immediate

precursors)’’ by deleting:

‘‘1 gm of Methamphetamine =1 kg of marihuana

1 gm of Methamphetamine (Actual) =10 kg of marihuana

1 gm of ‘Ice’ = ............... 10 kg of marihuana’’,

and inserting in lieu thereof:

‘‘1 gm of Methamphetamine =2 kg of marihuana

1 gm of Methamphetamine (actual) =20 kg of marihuana

1 gm of ‘Ice’ = ............... 20 kg of marihuana’’.

Part B

Section 2D1.1(b) is amended by

renumbering subdivision (4) as

subdivision (5); and by inserting after

subdivision (3) the following new

subdivision (4):
8502 Federal Register / Vol. 62, No. 37 / Tuesday, February 25, 1997 / Notices

[Option 1: ‘‘(4) If the offense involved

the importation of methamphetamine,

or the manufacture of

methamphetamine from listed

chemicals that the defendant knew were

imported unlawfully, increase by [2]

levels.’’].

[Option 2: ‘‘(4) If (A) the offense

involved the importation of

methamphetamine [or the manufacture

of methamphetamine from listed

chemicals that the defendant knew were

imported unlawfully,] and (B) the

defendant [is subject to an adjustment

under § 3B1.1 (Aggravating Role)][is not

subjected to an adjustment under

§ 3B1.2 (Mitigating Role)], increase by 2

levels.]’’.

[Both Options: The Commentary to

§ 2D1.1 captioned ‘‘Application Notes’’

is amended by inserting the following

additional note:

‘‘19. If the offense involved

importation of methamphetamine, and

an adjustment from subsection (b)(2)

applies, do not apply subsection

(b)(4).’’].

[Option 3: The Commentary to

§ 2D1.1 captioned ‘‘Application Notes’’

is amended by inserting the following

additional note:

‘‘19. If the offense involved the

unlawful importation of

methamphetamine, or the manufacture

of methamphetamine from listed

chemicals that the defendant knew were

imported unlawfully, an upward

departure may be warranted [,

particularly if the defendant had an

aggravating role in the offense under

§ 3B1.1 (Aggravating Role)].’’].

Part C

[Option 1: Section 2D1.1(b) is

amended renumbering subsection (4) as

subsection (5) and by inserting the

following as the new subsection (4):

‘‘(4) If the offense involved a

discharge or emission into the

environment of a hazardous or toxic

substance or created a substantial risk of

environmental harm, increase by [2–6]

levels.’’.]

[Option 2: The Commentary to

§ 2D1.1 captioned ‘‘Application Notes’’

is amended by inserting the following

additional note:

‘‘19. If the offense involved a

discharge or emission into the

environment of a hazardous or toxic

substance or created a substantial risk of

environmental harm, an upward

departure may be warranted.’’].

[Option 1: Section 2D1.11(b) is

amended by adding the following new

subdivision:

‘‘(3) If the offense involved a

discharge or emission into the

environment of a hazardous or toxic

substance or created a substantial risk of

environmental harm, increase by [2–6]

levels.’’].

[Option 2: The Commentary to

§ 2D1.11 captioned ‘‘Application Notes’’

is amended by inserting the following

new note:

‘‘8. If the offense involved a discharge

or emission into the environment of a

hazardous or toxic substance or created

a substantial risk of environmental

harm, an upward departure may be

warranted.’’].

[Option 1: Section 2D1.12 is amended

by renumbering subsection (b) as (c) and

by inserting the following new

subsection:

‘‘(b) Specific Offense Characteristic

(1) If the offense involved a discharge

or emission into the environment of a

hazardous or toxic substance or created

a substantial risk of environmental

harm, increase by [2–6] levels.’’].

The Commentary to § 2D1.12

captioned ‘‘Application Notes’’ is

amended by inserting the following new

note:

‘‘3. If the offense involved a discharge

or emission into the environment of a

hazardous or toxic substance or created

a substantial risk of environmental

harm, an upward departure may be

warranted.’’].

[Option 1: Section 2D1.13 is amended

by inserting the following new

subsection:

‘‘(b) Specific Offense Characteristic

(1) If the offense involved a discharge

or emission into the environment of a

hazardous or toxic substance or created

a substantial risk of environmental

harm, increase by [2–6] levels.’’].

[Option 2: The Commentary to

§ 2D1.13 captioned ‘‘Application Note’’

is amended by deleting ‘‘Note’’ and

inserting in lieu thereof ‘‘Notes’’ and by

inserting the following new note:

‘‘2. If the offense involved a discharge

or emission into the environment of a

hazardous or toxic substance or created

a substantial risk of environmental

harm, an upward departure may be

warranted.’’].

Part D

The Commentary to § 2D1.1 captioned

‘‘Application Notes’’ is amended in the

second sentence of Note 8 by inserting

‘‘and other persons with highly

developed skills’’ immediately

following ‘‘professionals’’ and by

inserting ‘‘manufacturing and’’

immediately following ‘‘drug’’; in the

third sentence by deleting

‘‘professionals’’ and inserting in lieu

thereof ‘‘persons’’ and by inserting

‘‘ ‘cooks’ (depending on the level of skill

and sophistication),’’ immediately

before ‘‘accountants’’.

Section 3B1.3 is amended by deleting

the third sentence.

The Commentary to 3B1.3 captioned

‘‘Application Notes’’ is amended in

Note 2 by inserting the following as the

last sentence:

‘‘Depending on their level of skill and

sophistication, persons involved in the

manufacture of methamphetamine or

other controlled substances, including

individuals described as ‘‘cooks,’’ may

be subject to this enhancement.’’.

Part E

Issue for Comment: The Sentencing

Commission requests comment on the

following issues related to the above

amendments:

(a) The existence of other aggravating

factors which distinguish

methamphetamine offenses and should

be recognized as such under the

guidelines; and

(b) Whether and how the proposed

aggravating factors listed in Parts B

through D, and any other factors that

meaningfully distinguish

methamphetamine cases, might be

combined with quantity-related

increases in punishment of lesser

magnitude than those proposed in Part

A.

(c) If the changes in Part A are made,

conforming changes to 2D1.11 may be

necessary. The Commission invites

comment on how the offense levels in

the chemical Quantity Table should be

changed to reflect the changes in the

Drug Quantity Table.

11. Synopsis of Proposed

Amendment: This amendment makes

Appendix A (Statutory Index) more

comprehensive based on newly enacted

legislation described below.

(A) Health Insurance Portability and

Accountability Act of 1996

1. Section 242 creates a new crime at

18 U.S.C. 1347, with a maximum

penalty of 10 years imprisonment, for

schemes to defraud or to obtain funds

by false pretenses from any health care

benefit program. Penalties increase to 20

years or life imprisonment, respectively,

if ‘‘serious bodily injury’’ or death

results from the violation. Because this

new offense involves fraud, it is

recommended that 18 U.S.C.1347 be

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

2. Section 243 creates a new crime at

18 U.S.C. 669 for the theft,

embezzlement, or intentional

misapplication of the funds, property, or

assets of a health care benefit program.

The maximum penalty is 10 years

imprisonment, but the statutory

maximum drops to 1 year if the value

of the property involved is less than

$100. Because this new offense involves

fraud, it is recommended that 18 U.S.C.
Federal Register / Vol. 62, No. 37 / Tuesday, February 25, 1997 / Notices 8503

669 be referenced to § 2F1.1 (Fraud and

Deceit).

3. Section 244 creates a new crime at

18 U.S.C. 1035 for false statements

relating to health care matters, with a

maximum penalty of 5 years’

imprisonment. Because this new offense

involves fraud, it is recommended that

18 U.S.C. 1035 be referenced to § 2F1.1.

4. Section 245 creates a new crime at

18 U.S.C. 1518 for obstruction of a

criminal investigation of a health care

offense, with a maximum penalty of 5

years’ imprisonment. Because this new

offense involves obstruction of justice, it

is recommended that 18 U.S.C. 1518 be

referenced to § 2J1.2 (Obstruction of

Justice).

(B) Omnibus Consolidated

Appropriations for Fiscal Year 1997

1. Section 648 reclassifies as Class B

felonies the counterfeit offenses at 18

U.S.C. 474 (Plates or stones for

counterfeiting obligations or securities)

and 474A (Deterrents to counterfeiting

of obligations and securities)

(previously Class C felonies), which

effectively increases the statutory

maximum penalties for these offenses

from 12 years to 25 years. The effective

date is the date of enactment. The

legislation does not contain any

directions to the Commission regarding

the drafting of sentencing guidelines.

Appendix A references violations of

§ 474 to § 2B5.1 (Offenses Involving

Counterfeit Bearer Obligations of the

United States) and § 2F1.1 (Fraud);

Appendix A does not currently

reference violations of § 474A. It is

recommended that 18 U.S.C. 474A be

referenced to § 2B5.1.

2. Section 648 creates a new crime at

18 U.S.C. 514 for offenses involving

fictitious obligations. This new

provision, classified as a Class B felony,

prohibits the production and transfer,

with the intent to defraud, of any false

or fictitious instrument, document or

other item representing through scheme

or artifice, to be an actual security or

other financial instrument issued under

the authority of the United States, a

foreign government, a State or other

political subdivision of the United

States, or an organization. Section 514

also prohibits the use of the mails, wire,

radio or other electronic communication

to move the false instruments through

interstate or foreign commerce. Section

514 covers attempts and imposes the

same penalties on attempts as the

completed substantive offense. The

effective date is the date of enactment.

The legislation does not contain any

directions to the Commission regarding

the drafting of sentencing guidelines.

The Financial Crimes Unit of the U.S.

Secret Service explained that this

legislation stems from the criminal

activity of groups like the Freeman of

Montana; these groups manufacture

‘‘bogus’’ financial instruments that are

transferred as if the instruments were

real. As opposed to a ‘‘counterfeit’’ item,

which purports to be genuine but is not

because it has been falsely made or

manufactured in its entirety, a

‘‘fictitious obligation’’ is an instrument

that cannot be genuine because the

instrument is entirely ‘‘made-up’’ or

‘‘invented’’. The counterfeiting statutes

do not cover manufacturing of fictitious

instruments because such conduct does

not involve the counterfeiting of any

existing financial obligation or

instrument.

The amendment below references 18

U.S.C. 514 to § 2F1.1 (Fraud and Deceit).

The conduct involved seems more like

fraud than counterfeiting because (1) the

manufactured obligation is an entirely

phony instrument and not a copy of a

legitimate type of financial instrument;

and (2) this conduct does not seem to

raise the public policy interest in

protecting the integrity of government

obligations that counterfeiting offenses

raise because the United States has no

obligation to pay on a ‘‘bogus’’ type of

financial instrument. Further, § 514

includes conduct comprising mail and

wire fraud. The Commission can

monitor the types of financial

instruments involved in § 514 offenses

to determine whether a reference to the

counterfeiting guideline (§ 2B5.1) is also

necessary.

Proposed Amendment: Appendix A

(Statutory Index) is amended by

inserting the following at the

appropriate place by title and section:

‘‘18 U.S.C. 474A 2B5.1’’;

‘‘18 U.S.C. 514 2F1.1’’;

‘‘18 U.S.C. 669 2F1.1’’;

‘‘18 U.S.C. 1035 2F1.1’’;

‘‘18 U.S.C. 1347 2F1.1’’;

‘‘18 U.S.C. 1518 2J1.2’’.

Fraud, Theft, and Tax Offenses—

Chapter Two, Parts B, C, and Q

(Addendum to Proposed Amendment

#18 in the Guideline Amendments for

Public Comment—Part I, 62 FR 151,

Dated January 2, 1997)

12. Synopsis of Proposed

Amendment: (A) Generally conforms

the loss enhancements to those

proposed in Amendment #18, and (B)

proposes a one level increase in the base

offense level of each of these guidelines.

These latter changes are designed to

avoid any unintended decreases in

offense level of the cases sentenced

under these guidelines that may result

from the adoption of Amendment #18.

Each of the guidelines affected by this

amendment has a specific offense

characteristic that references the loss

table in § 2F1.1. For example, § 2B3.3

(Blackmail and Similar Forms of

Extortion) has a specific offense

characteristic that provides that ‘‘If the

greater of the amount obtained or

demanded exceeded $2,000,’’ the

offense level should be increased ‘‘by

the corresponding number of levels

from the table in § 2F1.1.’’ Among other

provisions, options one and three of

Amendment #18 would increase the

amount of loss required to trigger the

first increase for loss from $2,000 to

$5,000. Consequently, options one and

three, if adopted, would produce a onelevel reduction compared to the current

guideline for those cases sentenced

under each of the guidelines listed in

this amendment if the loss amount was

between $2,000 and $5,000. Because of

the nature of the loss table proposed in

option two (the first trigger of an

increase for loss remains at $2,000), if

that option is adopted the conforming

changes in this amendment would be

unnecessary.

It should be noted that, because these

guidelines listed in this amendment do

not have an enhancement for more-thanminimal planning so they would be

affected in a more complex way by

Amendment #18 than guidelines that

currently have that enhancement. The

package of proposals in Amendment #18

would eliminate the two-level

enhancement for more-than-minimal

planning from guidelines where it

currently exists, build that two-level

increase into the loss table, and add a

new enhancement for ‘‘sophisticated

means.’’ Amendment #18 also proposes

significant increases for loss amounts

near the top of the table. Because the

guidelines listed in this amendment

reference the loss table, the changes to

the loss tables proposed by Amendment

#18 would cause increases to offense

levels for cases sentenced under these

guidelines (under options one and three,

for loss amounts over $5,000; under

option two, loss over $2,000). Moreover,

any resulting increases in offense levels

for cases sentenced under the guidelines

will not be offset—even partially—by

the elimination of the enhancement for

more-than-minimal planning.

Proposed Amendment: Section

2B3.3(a) is amended by deleting ‘‘9’’ and

inserting in lieu thereof ‘‘10’’.

Section 2B3.3(b)(1) is amended by

deleting ‘‘$2,000’’ and inserting in lieu

thereof ‘‘$5,000’’.

Section 2B4.1(a) is amended by

deleting ‘‘8’’ and inserting in lieu

thereof ‘‘9’’.

Section 2B4.1(b)(1) is amended by

deleting ‘‘$2,000’’ and inserting in lieu

thereof ‘‘$5,000’’.
8504 Federal Register / Vol. 62, No. 37 / Tuesday, February 25, 1997 / Notices

Section 2B5.1(a) is amended by

deleting ‘‘9’’ and inserting in lieu

thereof ‘‘10’’.

Section 2B5.1(b)(1) is amended by

deleting ‘‘$2,000’’ and inserting in lieu

thereof ‘‘$5,000’’.

Section 2B5.3(a) is amended by

deleting ‘‘6’’ and inserting in lieu

thereof ‘‘7’’.

Section 2B5.3(b)(1) is amended by

deleting ‘‘$2,000’’ and inserting in lieu

thereof ‘‘$5,000’’.

Section 2B6.1(a) is amended by

deleting ‘‘8’’ and inserting in lieu

thereof ‘‘9’’.

Section 2B6.1(b)(1) is amended by

deleting ‘‘$2,000’’ and inserting in lieu

thereof ‘‘$5,000’’.

Section 2C1.1(a) is amended by

deleting ‘‘10’’ and inserting in lieu

thereof ‘‘11’’.

Section 2C1.1(b)(2)(A) is amended by

deleting ‘‘$2,000’’ and inserting in lieu

thereof ‘‘$5,000’’.

Section 2C1.2(a) is amended by

deleting ‘‘7’’ and inserting in lieu

thereof ‘‘8’’.

Section 2C1.2(b)(2)(A) is amended by

deleting ‘‘$2,000’’ and inserting in lieu

thereof ‘‘$5,000’’.

Section 2C1.6(a) is amended by

deleting ‘‘7’’ and inserting in lieu

thereof ‘‘8’’.

Section 2C1.6(b)(1) is amended by

deleting ‘‘$2,000’’ and inserting in lieu

thereof ‘‘$5,000’’.

Section 2C1.7(a) is amended by

deleting ‘‘10’’ and inserting in lieu

thereof ‘‘11’’.

Section 2C1.7(b)(1)(A) is amended by

deleting ‘‘$2,000’’ and inserting in lieu

thereof ‘‘$5,000’’.

Section 2Q2.1(a) is amended by

deleting ‘‘6’’ and inserting in lieu

thereof ‘‘7’’.

Section 2Q2.1(b)(3)(A) is amended by

deleting ‘‘$2,000’’ and inserting in lieu

thereof ‘‘$5,000’’.

Section 2B4.1 (Bribery in Procurement

of Bank Loan and Other Commercial

Bribery)(Addendum to Proposed

Amendment #12 in the Guideline

Amendments for Public Comment—Part

I, 62 FR 151, Dated January 2, 1997)

13. Synopsis of Proposed

Amendment: In the January 2, 1997

Federal Register notice, the

Commission published an amendment

to § 2B1.1(b)(6)(B) and § 2F1.1(b)(6)(B).

That amendment (amendment 12)

addresses the difficulty in interpreting

the meaning of ‘‘affected a financial

institution and the defendant derived

more than $1,000,000 in gross receipts

from the offense.’’ This amendment

makes conforming changes to § 2B4.1

(Bribery in Procurement of Bank Loan

and Other Commercial Bribery), which

also contains an enhancement to cover

instances when the defendant’s conduct

‘‘affected a financial institution and the

defendant derived more than $1,000,000

in gross receipts from the offense.’’

Section 2B4.1 is amended in

subsection (b)(2) by deleting ‘‘—’’

immediately following ‘‘offense’’; by

deleting ‘‘(A)’’; by deleting ‘‘; or’’

immediately following ‘‘institution’’and

inserting in lieu thereof ‘‘,’’; by deleting

subsection (b)(2)(B) in its entirety; and

by inserting the following additional

subsection:

‘‘(3) If (A) obtaining or retaining the

gross receipts of one or more financial

institutions was an object of the offense,

(B) the defendant derived more than

$1,000,000 in gross receipts from such

institutions, and (C) the offense level as

determined above is less than level 24,

increase to level 24.’’.

The Commentary to § 2B4.1 captioned

‘‘Application Notes’’ is amended in the

first sentence of Note 5 by deleting

‘‘from the offense’’ immediately

following ‘‘receipts’’; by deleting

‘‘(2)(B)’’ and inserting in lieu thereof

‘‘(3)’’; by deleting ‘‘generally’’; by

deleting the second sentence in its

entirety; and by deleting ‘‘See 18 U.S.C.

982(a)(4).’’; and by inserting the

following as the first sentence:

‘‘For purposes of subsection (b)(3),

‘gross receipts’ means any moneys,

funds, credits, assets, securities, or other

real or personal property, whether

tangible or intangible, owned by, or

under the custody or control of, a

financial institution, that are obtained

directly or indirectly as a result of such

offense. See 18 U.S.C. 982(a)(4), 1344.’’.

The Commentary to § 2B4.1 captioned

‘‘Background’’ is amended in the

seventh paragraph by deleting

‘‘Subsection’’ and inserting in lieu

thereof ‘‘Subsections’’; by deleting ‘‘(A)’’

and inserting in lieu thereof ‘‘and

(b)(3)’’; by deleting ‘‘implements’’ and

inserting in lieu thereof ‘‘implement’’;

by deleting ‘‘instruction’’ and inserting

in lieu thereof ‘‘instructions’’; and by

inserting ‘‘and section 2507 of Public

Law 101–647, respectively’’

immediately following ‘‘101–73’’.

The Commentary to § 2B4.1 captioned

‘‘Background’’ is amended by deleting

the last paragraph in its entirety.

[FR Doc. 97–4565 Filed 2–24–97; 8:45 am]

BILLING CODE 2210–40–P

SMALL BUSINESS ADMINISTRATION

Data Collection Available for Public

Comments and Recommendation

ACTION: Notice and request for

comments.

SUMMARY: In accordance with the

Paperwork Reduction Act of 1995, this

notice announces the Small Business

Administration’s intentions to request

approval on a new, and/or currently

approved information collection.

DATES: Comments should be submitted

on or before April 28, 1997.

FOR FURTHER INFORMATION CONTACT:

Curtis B. Rich, Management Analyst,

Small Business Administration, 409 3rd

Street, S. W., Suite 5000, Washington,

D.C. 20416. Phone Number: 202–205–

6629.

SUPPLEMENTARY INFORMATION:

Title: ‘‘Request From Borrower’’.

Type of Request: Extension of a

Currently Approved Collection.

Form No.: SBA Form 770.

Description of Respondents:

Recipients of SBA Loans.

Annual Responses: 161,000.

Annual Burden: 281,750.

Comments: Send all comments

regarding this information collection to

Annie McCluney, Program Analyst,

Office of Borrower and Lender

Servicing, Small Business

Administration, 409 3rd Street, S. W.,

Suite 8300 Washington, D.C. 20416.

Phone No.: 202–205–7545. Send

comments regarding whether this

information collection is necessary for

the proper performance of the function

of the agency, accuracy of burden

estimate, in addition to ways to

minimize this estimate, and ways to

enhance the quality.

Title: ‘‘Survey on the Effects of Bank

Mergers and Acquisitions on Small

Business Lending in the United States’.

Type of Request: Extension of

Currently Approved Collections.

Form No.: SBA Form 1981.

Description of Respondents: Banks

Involved in Mergers or Acquisitions.

Annual Responses: 235.

Annual Burden: 117.

Comments: Send all comments

regarding this information collection to

Charles Ou, Office of Advocacy, Small

Business Administration, 409 3rd Street,

S.W., Suite 7800 Washington, D.C.

20416. Phone No. 202–205–6966.

Send comments regarding whether

this information collection is necessary

for the proper performance of the

function of the agency, accuracy of

burden estimate, in addition to ways to

minimize this estimate, and ways to

enhance the quality.