66792 Federal Register / Vol. 65, No. 216 / Tuesday, November 7, 2000 / Notices

UNITED STATES SENTENCING

COMMISSION

Sentencing Guidelines for United

States Courts

AGENCY: United States Sentencing

Commission.

ACTION: Notice of proposed amendments

to sentencing guidelines, policy

statements, and commentary. Request

for public comment.

SUMMARY: Pursuant to section 994(a),

(o), and (p) of title 28, United States

Code, the Commission is considering

promulgating certain amendments to the

sentencing guidelines, policy

statements, and commentary. This

notice sets forth the proposed

amendments and, for each proposed

amendment, a synopsis of the issues

addressed by that amendment.

The specific amendments proposed in

this notice are summarized as follows:

(1) proposed amendment to address

aggravating conduct associated with the

unlawful supplementation of the salary

of certain federal employees and to

consolidate §§ 2C1.3 (Conflict of

Interest), 2C1.4 (Payment or Receipt of

Unauthorized Compensation), and

2C1.5 (Payments to Obtain Public

Office) to simplify overall guideline

application for covered offenses; (2)

proposed amendment to § 2B5.1

(Offenses Involving Counterfeit Bearer

Obligations of the United States) to

increase the base offense level and to

replace the minimum offense level for

manufacturing offenses with a two-level

enhancement; (3) proposed amendment

to § 2H3.1 (Interception of

Communications or Eavesdropping) to

address several offenses relating to the

unlawful disclosure and/or inspection

of tax return information; and (4)

proposed amendments that address four

circuit conflicts as follows: (A) proposed

amendment to § 1B1.2 (Applicable

Guidelines) to provide that a factual

statement made by a defendant at a plea

colloquy is not a stipulation for

purposes of § 1B1.2(a) unless that

statement is agreed to as part of the plea

agreement; (B) two options for

amending § 2A2.2 (Aggravated Assault)

to clarify that (i) both the base offense

level and the weapon use enhancement

in § 2A2.2(b)(2) shall apply to

aggravated assaults that involve a

dangerous weapon with intent to cause

bodily injury; and (ii) instruments, such

as a car or chair, that ordinarily are not

used as weapons may qualify as

dangerous weapons for purposes of

§ 2A2.2(b)(2) if the defendant involves

them in the offense with the intent to

cause bodily injury; (C) proposed

amendment to § 2F1.1 (Fraud and

Deceit) to provide for application of the

enhancement in § 2F1.1(b)(4)(A) if

either (i) the defendant falsely

represented that the defendant was an

employee of a covered organization or a

government agency; or (ii) the

defendant, an employee of a covered

organization or a government agency,

represented that the defendant was

acting solely for the benefit of the

organization or agency when, in fact, the

defendant intended to divert all or part

of that benefit (for example, for the

defendant’s personal gain); and (D)

proposed amendment to § 3B1.2

(Mitigating Role) to provide that a

defendant in a drug trafficking offense

whose role was limited to transporting

or storing drugs and who was

accountable only for the drugs the

defendant personally transported or

stored, is not precluded from receiving

a mitigating role adjustment, even in a

single defendant case.

DATES: Written public comment should

be received by the Commission not later

than January 8, 2001.

ADDRESSES: Public comment should be

sent to: United States Sentencing

Commission, One Columbus Circle, NE.,

Suite 2–500, Washington, D.C. 20002–

8002, Attention: Public Information.

FOR FURTHER INFORMATION CONTACT:

Michael Courlander, Public Affairs

Officer, Telephone: (202) 502–4590.

SUPPLEMENTARY INFORMATION: The

United States Sentencing Commission is

an independent agency in the judicial

branch of the United States

Government. The Commission

promulgates sentencing guidelines and

policy statements for federal sentencing

courts pursuant to 28 U.S.C. 994(a). The

Commission also periodically reviews

and revises previously promulgated

guidelines pursuant to 28 U.S.C. 994(o)

and submits guideline amendments to

the Congress not later than the first day

of May each year pursuant to 28 U.S.C.

994(p).

The proposed amendments are

presented in this notice in one of two

formats. First, some of the amendments

are proposed as specific revisions to a

guideline or commentary. Bracketed text

within a proposed amendment indicates

a heightened interest on the

Commission’s part for comment and

suggestions for alternative policy

choices; for example, a proposed

enhancement of [2] levels indicates that

the Commission is considering, and

invites comment on, alternative policy

choices regarding the appropriate level

of enhancement. Similarly, bracketed

text within a specific offense

characteristic or application note means

that the Commission specifically invites

comment on whether the proposed

provision is appropriate. Second, the

Commission has highlighted certain

issues for comment and invites

suggestions for how the Commission

should respond to those issues.

Reports and other additional

information pertaining to the proposed

amendments described in this notice

may be accessed through the

Commission’s website at www.ussc.gov.

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

USSC Rules of Practice and Procedure 4.3,

4.4.

Diana E. Murphy,

Chair.

Proposed Amendment: Unauthorized

Compensation

1. Synopsis of Proposed Amendment

This proposed amendment addresses

the issue of whether, and to what extent,

the guideline offense levels should be

increased in § 2C1.4, the guideline for

offenses in 18 U.S.C. 209 involving the

unlawful supplementation of the salary

of various federal employees. The

proposed amendment (A) adds a cross

reference to the bribery and gratuity

guidelines, in order to account for

aggravating conduct; and (B)

consolidates the unauthorized

compensation guideline (§ 2C1.4) with

the conflict of interest guideline

(§ 2C1.3) and the guideline covering

payments to obtain public office

(§ 2C1.5), to promote ease of

application.

The Commission began to focus on

this issue in 1998 when it promulgated

an amendment to § 2C1.4 to delete

outdated, erroneous background

commentary. That commentary, first

written in 1987, described the offenses

covered by the guideline as

misdemeanors punishable by

imprisonment for not more than one

year. In fact, however, the penalties for

18 U.S.C. 209 offenses were changed in

1989. The applicable penalties, under

18 U.S.C. 216, became (1) imprisonment

for not more than one year; or (2)

imprisonment for not more than five

years, if the defendant willfully engaged

in the conduct constituting the offense.

The increased statutory penalties

under 18 U.S.C. 216 implicate the

question of whether guideline penalties

under §§ 2C1.3 and 2C1.4 should be

increased correspondingly, particularly

if the current guideline penalty

structure inadequately takes into

account aggravating conduct associated

with these offenses.

The guideline covering offenses in 18

U.S.C. 209, § 2C1.4, has a base offense

level of level 6 and no additional

Federal Register / Vol. 65, No. 216 / Tuesday, November 7, 2000 / Notices 66793

enhancements that take into account

aggravating conduct. From FY91

through FY99, a total of 73 cases were

sentenced under § 2C1.4. Because of the

low offense levels associated with this

guideline, all of the defendants

sentenced under § 2C1.4 received

probation.

Moreover, the increased statutory

penalty in 18 U.S.C. 216 (namely, the

five-year statutory maximum for willful

conduct) applies not only to offenses

under 18 U.S.C. 209 but also to bribery,

graft, and conflict of interest offenses

under 18 U.S.C. 203, 204, 205, 207, and

208, all of which are covered by the

conflict of interest guideline, § 2C1.3.

That guideline has a base offense level

of level 6 and a four-level enhancement

if the offense involved actual or planned

harm to the government. From FY91

through FY99, a total of 71 cases were

sentenced under § 2C1.3, and only 10 of

those cases received the enhancement

for actual or planned harm to the

government.

Commission staff review of the cases

sentenced under §§ 2C1.3 and 2C1.4

revealed that many of those cases

actually involved a bribe or a gratuity.

In other words, many of these

defendants likely could have been

charged under a bribery or gratuity

statute (most likely 18 U.S.C. 201) and

sentenced under the more serious

bribery (§ 2C1.1) or gratuity (§ 2C1.2)

guideline but were convicted under the

less serious statutes and sentenced

under the less severe guidelines (i.e.,

§§ 2C1.3 and 2C1.4).

The following proposed amendment

is intended to address these issues by

(A) adding a cross reference from

§ 2C1.4 to the bribery and gratuity

guidelines, in order to account for

aggravating conduct; and (B)

consolidating the unauthorized

compensation guideline with the

conflict of interest guideline and the

guideline covering payments to obtain

public office, to promote ease of

application. First, in order to more

adequately account for aggravating

conduct prevalent in these cases (i.e.,

the presence of a bribe or a gratuity), the

proposed amendment provides a cross

reference to § 2C1.1 (in the case of a

bribe) or § 2C1.2 (in the case of a

gratuity), which will apply on the basis

of the underlying conduct; i.e., as a

sentencing factor rather than a count of

conviction factor.

Second, in order to simplify overall

guideline operation, the proposed

amendment consolidates §§ 2C1.3

(Conflict of Interest), 2C1.4 (Payment or

Receipt of Unauthorized

Compensation), and 2C1.5 (Payments to

Obtain Public Office). Although the

elements of the offenses of conflict of

interest (currently covered by § 2C1.3)

and unauthorized compensation

(currently covered by § 2C1.4) differ in

some ways, the gravamen of the offenses

is similar—unauthorized receipt of a

payment in respect to an official act.

The base offense levels for both

guidelines are identical. However, the

few cases in which these guidelines

were applied usually involved a conflict

of interest offense that was associated

with a bribe or gratuity.

The guideline covering payments to

obtain public office, § 2C1.5, is also

consolidated under the proposed

amendment. Offenses involving

payment to obtain public office

generally, but not always, involve the

promised use of influence to obtain

public appointive office. Also, such

offenses need not involve a public

official (see, for example, the second

paragraph of 18 U.S.C. 211). The current

offense level for all such offenses is

level 8. The two statutes to which

§ 2C1.5 applies (18 U.S.C. 210 and 211)

are both Class A misdemeanors. Under

the proposed consolidation, the base

offense level would be level 6, but the

higher base offense level of § 2C1.5

would be taken into account by a twolevel enhancement in subsection

(b)(1)(B) covering conduct under 18

U.S.C. 210 and the first paragraph of 18

U.S.C. 211. There is one circumstance in

which a lower offense level may result

and one circumstance in which a higher

offense level may result. The offense

level for conduct under the second

paragraph of 18 U.S.C. 211 (the prong of

§ 211 that does not pertain to the

promise or use of influence) is reduced

from level 8 to level 6. On the other

hand, conduct that involves a bribe of

a government official will result in an

increased offense level (level 10 or

greater, compared to level 8) under the

proposed cross reference.

Proposed Amendment

Section 2C1.3 is amended in the title

by inserting ‘‘; Payment or Receipt of

Unauthorized Compensation; Payments

to Obtain Public Office’’ after ‘‘Interest’’.

Section 2C1.3(b) is amended by

striking subdivision (1) in its entirety

and inserting the following:

‘‘(1) (Apply the greater):

(A) if the offense involved actual or

planned harm to the government,

increase by 4 levels; or

(B) if the offense involved (i) the

payment, offer, or promise of any money

or thing of value in consideration for the

use of, or promise to use, any influence

to procure an appointive federal

position for any person; or (ii) the

solicitation or receipt of any money or

thing of value in consideration of the

promise of support, or use of influence,

in obtaining an appointive federal

position for any person, increase by 2

levels.’’.

Section 2C1.3 is amended by adding

after subsection (b) the following new

subsection:

‘‘(c) Cross Reference

(1) If the offense involved a bribe or

gratuity, apply § 2C1.1 (Offering, Giving,

Soliciting, or Receiving a Bribe;

Extortion Under Color of Official Right)

or § 2C1.2 (Offering, Giving, Soliciting,

or Receiving a Gratuity), as appropriate,

if the resulting offense level is greater

than determined above.’’.

The Commentary to § 2C1.3 captioned

‘‘Statutory Provisions’’ is amended by

inserting ‘‘, 209, 210, 211, 1909’’ after

‘‘208’’.

The Commentary to § 2C1.3 captioned

‘‘Application Note’’ is amended in Note

1 by inserting ‘‘Abuse of Position of

Trust.—’’ before ‘‘Do not’’.

The Commentary to § 2C1.3 is

amended by striking the background

note in its entirety.

Sections 2C1.4 and 2C1.5 are deleted

in their entirety.

Proposed Amendment: Counterfeiting

Offenses

2. Synopsis of Proposed Amendment

This proposed amendment (A)

increases the base offense level in

§ 2B5.1 (Offenses Involving Counterfeit

Bearer Obligations of the United States)

from level 9 to level 10; (B) replaces the

minimum offense level of level 15 for

manufacturing offenses with a two-level

enhancement; and (C) proposes to delete

commentary that suggests that the

manufacturing adjustment does not

apply if the defendant ‘‘merely

photocopies’’.

First, the amendment increases the

base offense level from level 9 to level

10. Setting the base offense level at level

10 for counterfeiting crimes promotes

proportionality in sentencing for

counterfeiting vis-a-vis other, similar

economic crimes. For example, fraud

crimes sentenced under § 2F1.1 (Fraud

and Deceit) receive a base offense level

of level 6 and almost invariably (roughly

85% of the time) two additional levels

for ‘‘more than minimal planning.’’

Thus, before any ‘‘loss’’ enhancement is

applied, fraud defendants are routinely

at a minimum of level 8. Placing the

base offense level for counterfeiting at

level 10 recognizes that counterfeiting

causes greater harm than fraud in its

most basic form in that counterfeiting

undermines public confidence in the

currency and causes the government to

spend great sums of money to build

66794 Federal Register / Vol. 65, No. 216 / Tuesday, November 7, 2000 / Notices

anti-counterfeiting safeguards into the

currency.

Second, the amendment replaces the

minimum offense level of level 15 for

manufacturing offenses with a two-level

enhancement. Replacing the minimum

offense level of level 15 with a two-level

enhancement has a double benefit. First,

it eliminates the cliff inherent in setting

a sentencing minimum. Specifically, the

existing minimum of level 15 for

manufacturing activity takes all

defendants who engage in

manufacturing to level 15 regardless of

the economic harm caused. This means

that the manufacturer of twenty dollars

worth of counterfeit, who many would

contend does not deserve to be

sentenced at offense level 15, receives

the same sentence as the manufacturer

of seventy thousand dollars worth of

counterfeit. In the context of a system

which recognizes the magnitude of

economic harm caused as a prime

determinant of relative culpability, this

disproportionate grouping of all

manufacturers at level 15 is neither

logical nor desirable.

A second benefit of this change is

that, unlike the current guideline, which

provides no incremental punishment for

manufacturers of more than seventy

thousand dollars in counterfeit, the

proposed two-level enhancement

provides reasonable incremental

punishment for all manufacturers. Such

a result also fosters the central goal of

proportionate sentencing.

Third, the amendment proposes to

delete the language in Application Note

4 that suggests, as a minority of courts

have interpreted it, that the

manufacturing adjustment does not

apply if the defendant ‘‘merely

photocopies’’. That application note was

intended to make the minimum offense

level for manufacturing offenses

inapplicable to notes that are so

obviously counterfeit that they are

unlikely to be accepted. Particularly

with the advent of digital technology, it

cannot be said that photocopying

necessarily produces a note so

obviously counterfeit as to be

impassible.

Proposed Amendment

Section 2B5.1(a) is amended by

striking ‘‘9’’ and inserting ‘‘10’’.

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

striking ‘‘and the offense level as

determined above is less than 15,

increase to level 15’’ and inserting

‘‘increase by 2 levels’’.

The Commentary to § 2B5.1 captioned

‘‘Application Notes’’ is amended in

Note 4 by striking ‘‘merely photocopy

notes or otherwise’’.

Issue for comment: The Commission

invites comment on whether it should

amend § 2B5.1 (Offenses Involving

Counterfeit Bearer Obligations of the

United States) to include an

enhancement (e.g., a two-level

enhancement) for counterfeiting

offenses that involve ‘‘sophisticated

means’’. If so, what conduct should

constitute ‘‘sophisticated means’’ in the

context of counterfeiting offenses? For

example, should the use of technology,

such as digital counterfeiting, generally

be considered sophisticated?

Alternatively, are there particular forms

of technology, such as particular forms

of digital counterfeiting, that would be

considered sophisticated for purposes of

an enhancement?

Proposed Amendment: Tax Privacy

3. Synopsis of Proposed Amendment

This amendment proposes to address

several offenses relating to unlawful

disclosure and/or inspection of tax

return information. The amendment

proposes to (A) amend the Statutory

Index to refer most of those offenses to

the guideline covering eavesdropping

and interception of communications,

§ 2H3.1; and (B) amend § 2H3.1 to add

a three-level decrease in the base offense

level for the least serious types of

offense behavior.

The pertinent offenses are:

(A) 26 U.S.C. 7213(a)(1)–(3), and (5),

which makes it unlawful for federal and

state employees and certain other

people willfully to disclose any tax

return or tax return information (for a

maximum term of imprisonment of five

years);

(B) 26 U.S.C. 7213(d), which makes it

unlawful for any person willfully to

divulge tax-related computer software

(for a maximum term of imprisonment

of five years);

(C) 26 U.S.C. 7213A, which makes it

unlawful for federal employees and

certain other persons willfully to

inspect any tax return or tax return

information (for a maximum term of

imprisonment of one year); and

(D) 26 U.S.C. 7216, which makes it

unlawful for any person engaged in the

business of preparing tax returns

knowingly or recklessly to disclose any

information furnished to that person in

connection with preparation of a return

(for a maximum term of imprisonment

of one year).

The following proposed amendment

refers these offenses to § 2H3.1 and

provides for a three-level downward

adjustment in the base offense level for

the least serious types of offense

behavior, i.e., the inspection (but not

disclosure) of tax return information,

and the reckless or knowing disclosure

of information collected by a tax

preparer in preparation of a tax return.

The proposed amendment also (A) adds,

in bracketed form, an application note

to make clear that an adjustment for

abuse of position of trust may apply;

and (B) makes a technical change in

subsection (b)(1) that is not intended to

have substantive effect.

Proposed Amendment

Section 2H3.1 is amended in the title

by striking ‘‘or’’ and inserting a

semicolon after ‘‘Communications’’; and

by inserting ‘‘; Disclosure of Tax Return

Information’’ after ‘‘Eavesdropping’’.

Section 2H3.1 is amended by striking

subsection (a) in its entirety and

inserting the following:

‘‘(a) Base Offense Level:

(1) 9; or

(2) 6, if the offense involved only (A)

inspection, but not disclosure, of a tax

return or tax return information; or (B)

a knowing or reckless disclosure of

information furnished to a tax return

preparer in connection with the

preparation of a tax return.’’.

Section 2H3.1(b)(1) is amended by

striking ‘‘conduct’’ and inserting

‘‘offense’’.

The Commentary to § 2H3.1 captioned

‘‘Statutory Provisions’’ is amended by

inserting ‘‘26 U.S.C. §§ 7213(a)(1)–(a)(3),

(a)(5), (d), 7213A, 7216;’’ after ‘‘2511;’’.

The Commentary to § 2H3.1 captioned

‘‘Application Note’’ is amended by

striking ‘‘Note’’ and inserting ‘‘Notes’’;

by redesignating Note 1 as Note 2; and

by inserting the following as new Note

1:

‘‘1. Definitions.—For purposes of this

guideline, ‘tax return’ and ‘tax return

information’ have the meaning given the

terms ‘return’ and ‘return information’

in 26 U.S.C. § 6013(b)(1) and (2),

respectively.’’.

The Commentary to § 2H3.1 captioned

‘‘Application Notes’’ (as re-captioned by

this amendment) is amended in

redesignated Note 2 (formerly Note 1) by

inserting ‘‘Satellite Cable

Transmissions.—’’ before ‘‘If the’’.

[The Commentary to § 2H3.1

captioned ‘‘Application Notes’’ (as recaptioned by this amendment) is

amended by adding at the end the

following:

‘‘3. Abuse of Position of Trust.—A

defendant who used a special skill or

abused a position of trust in the

commission of the offense may be

subject to an adjustment under § 3B1.3

(Abuse of Position of Trust or Use of

Special Skill). For example, a federal or

state employee who unlawfully

disclosed a tax return or tax return

information in violation of 26 U.S.C.

Federal Register / Vol. 65, No. 216 / Tuesday, November 7, 2000 / Notices 66795

7213(a) or (b) may have occupied a

position of public trust, as described in

Application Note 1 of § 3B1.3, and may

have used that position to significantly

facilitate the commission of the

offense.’’.]

The Commentary to § 2H3.1 captioned

‘‘Background’’ is amended by adding at

the end the following additional

paragraph:

‘‘This section also refers to conduct

relating to the disclosure and inspection

of tax returns and tax return

information, which is proscribed by 26

U.S.C. 7213(a)(1)–(3), (5), (d), 7213A,

and 7216. These statutes provide for a

maximum term of imprisonment of five

years for most types of disclosure of tax

return information.’’.

Appendix A (Statutory Index) is

amended by inserting after the line

referenced to ‘‘26 U.S.C. 7212(b)’’ the

following new lines:

‘‘26 U.S.C. 7213(a)(1) 2H3.1

26 U.S.C. 7213(a)(2) 2H3.1

26 U.S.C. 7213(a)(3) 2H3.1

26 U.S.C. 7213(a)(5) 2H3.1

26 U.S.C. 7213(d) 2H3.1

26 U.S.C. § 7213A 2H3.1’’; and by

inserting after the line referenced to ‘‘26

U.S.C. 7215’’ the following new line:

‘‘26 U.S.C. 7216 2H3.1’’.

Proposed Amendment: Circuit Conflict

Concerning Stipulations

4. Synopsis of Proposed Amendment:

This proposed amendment addresses

the circuit conflict regarding whether

admissions made by the defendant

during his guilty plea hearing, without

more, can be considered ‘‘stipulations’’

for purposes of § 1B1.2(a). Compare,

e.g., United States v. Nathan, 188 F. 3d

190, 201 (3d Cir. 1999) (statements

made by defendants during the factualbasis hearing for a plea agreement do

not constitute ‘‘stipulations’’ for the

purpose of this enhancement; a

statement is a stipulation only if it is

part of a defendant’s written plea

agreement or if both the government and

the defendant explicitly agree at a

factual-basis hearing that the facts being

placed on the record are stipulations

that might subject the defendant to

§ 1B1.2(a)), with United States v. Loos,

165 F. 3d 504, 508 (7th Cir. 1998) (the

objective behind § 1B1.2(a) is best

answered by interpreting ‘‘stipulations’’

to mean any acknowledgment by the

defendant that the defendant committed

the acts that justify use of the more

serious guideline, not in the formal

agreement).

The proposed amendment represents

a narrow approach to the majority view

that a factual statement made by the

defendant during the plea colloquy

must be made as part of the plea

agreement in order to be considered a

stipulation for purposes of § 1B1.2(a).

This approach lessens the possibility

that the plea agreement will be modified

during the course of the plea proceeding

without providing the parties, especially

the defendant, with notice of the

defendant’s potential sentencing range.

Proposed Amendment

The Commentary to § 1B1.2 captioned

‘‘Application Notes’’ is amended in

Note 1 in the third sentence of the first

paragraph of Note 1 by inserting

‘‘(written or made orally on the record)’’

after ‘‘agreement’’.

The Commentary to § 1B1.2 captioned

‘‘Application Notes’’ is amended in

Note 1 by striking the first two

sentences of the third paragraph and

inserting: ‘‘As set forth in the first

paragraph of this note, an exception to

this general rule is that if a plea

agreement (written or made orally on

the record) contains a stipulation that

establishes a more serious offense than

the offense of conviction, the guideline

section applicable to the stipulated

offense is to be used. A factual

statement made by the defendant during

the plea proceeding is not a stipulation

for purposes of subsection (a) unless

such statement was agreed to as part of

the plea agreement.’’.

The Commentary to § 1B1.2 captioned

‘‘Application Notes’’ is amended in

Note 1 in the third paragraph by striking

‘‘The sentence that may’’ and inserting

‘‘The sentence that shall’’.

The Commentary to § 1B1.2 captioned

‘‘Application Notes’’ is amended in

Note 1 in the second sentence of the

fourth paragraph by striking ‘‘cases

where’’ and inserting ‘‘a case in which’’.

Proposed Amendment: Circuit Conflict

Concerning Aggravated Assault

5. Synopsis of Proposed Amendment

This proposed amendment addresses

the circuit conflict regarding whether

the four-level enhancement in

subsection (b)(2)(B) of § 2A2.2

(Aggravated Assault) for use of a

dangerous weapon during an aggravated

assault is impermissible double

counting in a case in which the weapon

that was used was a non-inherently

dangerous weapon. Compare e.g.,

United States v. Williams, 954 F.2d 204,

205–08 (4th Cir. 1992) (applying the

dangerous weapon enhancement for

defendant’s use of a chair did not

constitute impermissible double

counting even though the use of the

chair increased the defendant’s offense

level twice: first by triggering

application of the aggravated assault

guideline and second as the basis for the

dangerous weapon enhancement), with

United States v. Hudson, 972 F.2d 504,

506–07 (2d Cir. 1992) (in a case in

which the use of an automobile caused

the crime to be classified as an

aggravated assault, the court may not

enhance the base offense level under

§ 2A2.2(b) for use of the same noninherently dangerous weapon).

This amendment presents two

options. Both options address the circuit

conflict by clarifying in the aggravated

assault guideline that (A) both the base

offense level of level 15 and the weapon

use enhancement in subsection (b)(2)

shall apply to aggravated assaults that

involve a dangerous weapon with intent

to cause bodily harm; and (B)

instruments, such as a car or chair, that

ordinarily are not used as weapons may

qualify as a dangerous weapon for

purposes of subsection (b)(2) when the

defendant involves them in the offense

with the intent to cause bodily harm.

The difference between the options is

that, unlike Option One, Option Two

proposes other substantive changes in

the aggravated assault guideline to

address additional problems with the

guideline. Specifically, Option Two

attempts more explicitly and thoroughly

than Option One to address one of the

key issues underlying the circuit

conflict, i.e., what conduct is

incorporated in the base offense level.

The aggravated assault guideline covers

three types of aggravated assault:

felonious assaults that involve any one

of the following: (A) Serious bodily

injury; (B) a dangerous weapon with

intent to cause bodily harm; and (C)

intent to commit another felony. See

Application Note 1 of § 2A2.2. Unlike

the current guideline, which has one

base offense level of level 15 for all

types of aggravated assault, Option Two

provides for each type of aggravated

assault a base offense level that is

intended to cover that type of assault in

its most basic form, unaccompanied by

further aggravated conduct.

Accordingly, Option Two provides two

alternative base offense levels: (A) Level

19, if the offense involved serious

bodily injury; and (B) level 15,

otherwise (i.e., if the offense involved

either an intent to commit another

felony or a dangerous weapon with the

intent to cause bodily injury).

The base offense level of level 19 for

offenses under 18 U.S.C. 113(a)(6)

(assaults resulting in serious bodily

injury) achieves the same offense level

as should be achieved under the current

guideline by application of the base

offense level and the serious bodily

injury enhancement in subsection

(b)(3)(B). However, FY 1999 data show

66796 Federal Register / Vol. 65, No. 216 / Tuesday, November 7, 2000 / Notices

that 16 percent of the 63 cases that

involved a conviction under 18 U.S.C.

113(a)(6) either received no bodily

injury enhancement or received an

enhancement lower than the four-level

enhancement required for serious bodily

injury. Therefore, either there may be

confusion about what conduct the base

offense level incorporates for these

types of aggravated assaults or

application of the serious bodily injury

enhancement is being avoided in cases

in which it is warranted. Incorporating

the serious bodily injury enhancement

into the base offense level may help to

ameliorate these concerns.

Proposed Amendment

Option 1

The Commentary to § 2A2.2 captioned

‘‘Application Notes’’ is amended in

Note 1 by inserting ‘‘Definitions.—For

purposes of this guideline:’’ before

‘‘ ‘Aggravated assault’ ’’; by striking ‘‘do

bodily harm’’ and inserting ‘‘cause

bodily injury’’; by striking the comma

after ‘‘frighten)’’ and inserting ‘‘with

that weapon;’’; by striking the comma

before ‘‘or (C)’’ and inserting a

semicolon; and by adding at the end the

following paragraphs:

‘Brandished,’ ‘bodily injury,’ ‘firearm,’

‘otherwise used,’’ ‘permanent or lifethreatening bodily injury,’ and ‘serious

bodily injury,’ have the meaning given

those terms in § 1B1.1, Application Note

1.

‘‘Dangerous weapon’ has the meaning

given that term in § 1B1.1, Application

Note 1. For purposes of this guideline,

and pursuant to that application note,

‘dangerous weapon’ includes any

instrument that is not ordinarily used as

a weapon (e.g., a car, a chair, or an ice

pick) if such an instrument is involved

in the offense with the intent to commit

bodily injury.

‘More than minimal planning,’ has the

meaning given that term in § 1B1.1,

Application Note 1.

The Commentary to § 2A2.2 captioned

‘‘Application Notes’’ is amended by

striking Notes 2 and 3 in their entirety

and inserting the following:

‘‘2. Aggravating Factors.—This

guideline covers felonious assaults that

are more serious than minor assaults

because of the presence of certain

aggravating factors, i.e., serious bodily

injury, the involvement of a dangerous

weapon with intent to cause bodily

injury, and the intent to commit another

felony.

An assault that involves the presence

of a dangerous weapon is aggravated in

form when the presence of the

dangerous weapon is coupled with the

intent to cause bodily injury. In such a

case, the base offense level and the

weapon use enhancement in subsection

(b)(2) take into account different aspects

of the offense. The base offense level

takes into account the presence of the

dangerous weapon (regardless of the

manner in which the weapon was

involved) and the fact that the

defendant intended to cause bodily

injury. Subsection (b)(2), on the other

hand, takes into account the manner in

which the dangerous weapon was

involved in the offense. Accordingly, in

a case involving a dangerous weapon

with intent to cause bodily injury, the

court shall apply both the base offense

level and subsection (b)(2).

3. More than Minimal Planning.—For

purposes of subsection (b)(1), waiting to

commit the offense when no witnesses

were present would not alone constitute

more than minimal planning. However,

luring the victim to a specific location

or wearing a ski mask to prevent

identification would constitute more

than minimal planning.’’.

The Commentary to § 2A2.2 captioned

‘‘Background’’ is amended in the first

paragraph by adding at the end the

following:

‘‘This guideline also covers attempted

manslaughter and assault with intent to

commit manslaughter. Assault with

intent to commit murder is covered by

§ 2A2.1 (Assault with Intent to Commit

Murder). Assault with intent to commit

rape is covered by § 2A3.1 (Criminal

Sexual Abuse).’’; and by striking the

second paragraph in its entirety and

inserting the following:

‘‘There are a number of federal

provisions that address varying degrees

of assault and battery. For example, if

the assault is upon a federal officer

while engaged in or on account of the

performance of official duties, the

maximum term of imprisonment

pursuant to 18 U.S.C. 111(a)(2) is three

years. If a deadly or dangerous weapon

is used in the assault on a federal

officer, or if the assault results in bodily

injury, the maximum term of

imprisonment is ten years. If a

dangerous weapon is used to assault a

person who is not a federal officer, and

the weapon was used with the intent to

do bodily harm, without just cause or

excuse, the maximum term of

imprisonment pursuant to 18 U.S.C.

113(a)(3) also is ten years. If an assault

results in serious bodily injury, the

maximum term of imprisonment

pursuant to 18 U.S.C. 113(a)(6) is ten

years, unless the injury constitutes

maiming by scalding, corrosive, or

caustic substances pursuant to 18 U.S.C.

114, in which case the maximum term

of imprisonment is twenty years.’’.

Option 2:

Section 2A2.2 is amended by striking

subsection (a) in its entirety and

inserting the following: ‘‘(a) Base

Offense Level (Apply the greater):

(1) 19, if the offense involved serious

bodily injury; or

(2) 15, otherwise.’’.

Section 2A2.2 is amended by striking

subsection (b)(3) in its entirety and

inserting the following:

‘‘(3) (A) If subsection (a)(1) applies,

and the victim sustained (i) permanent

or life-threatening bodily injury,

increase by 2 levels; or (ii) an injury that

is between serious bodily injury and

permanent or life-threatening bodily

injury, increase by 1 level. However, the

cumulative enhancements from this

subdivision and subsection (b)(2) shall

not exceed 5 levels.

(B) If subsection (a)(2) applies, and

the victim sustained (i) bodily injury,

increase by 2 levels; or (ii) an injury

between bodily injury and serious

bodily injury, increase by 3 levels.’’.

The Commentary to § 2A2.2 captioned

‘‘Application Notes’’ is amended in

Note 1 by inserting ‘Definitions.’For

purposes of this guideline:’’ before

‘‘’Aggravated assault’’’; by striking ‘‘do

bodily harm’’ and inserting ‘‘cause

bodily injury’’; by striking the comma

after ‘‘frighten)’’ and inserting ‘‘with

that weapon;’’; by striking the comma

before ‘‘or (C)’’ and inserting a

semicolon; and by adding at the end the

following paragraphs:

‘Brandished,’ ‘bodily injury,’ ‘firearm,’

‘otherwise used,’ ‘permanent or lifethreatening bodily injury,’ and ‘serious

bodily injury,’ have the meaning given

those terms in § 1B1.1, Application Note

1.

‘Dangerous weapon’ has the meaning

given that term in § 1B1.1, Application

Note 1. For purposes of this guideline,

and pursuant to that application note,

‘dangerous weapon’ includes any

instrument that is not ordinarily used as

a weapon (e.g., a car, a chair, or an ice

pick) if such an instrument is involved

in the offense with the intent to commit

bodily injury.

‘More than minimal planning,’ has the

meaning given that term in § 1B1.1,

Application Note 1.

The Commentary to § 2A2.2 captioned

‘‘Application Notes’’ is amended by

striking Notes 2 and 3 in their entirety

and inserting the following:

‘‘2. Aggravating Factors.—This

guideline covers felonious assaults that

are more serious than minor assaults

because of the presence of certain

aggravating factors, i.e., serious bodily

injury, the involvement of a dangerous

weapon with intent to cause bodily

injury, and/or the intent to commit

another felony.

Federal Register / Vol. 65, No. 216 / Tuesday, November 7, 2000 / Notices 66797

An assault that involves the presence

of a dangerous weapon is aggravated in

form when the presence of the

dangerous weapon is coupled with the

intent to cause bodily injury. In such a

case, the base offense level and the

weapon use enhancement in subsection

(b)(2) take into account different aspects

of the offense. The base offense level

takes into account the presence of the

dangerous weapon (regardless of the

manner in which the weapon was

involved) and the fact that the

defendant intended to cause bodily

injury. Subsection (b)(2), on the other

hand, takes into account the manner in

which the dangerous weapon was

involved in the offense. Accordingly, in

a case involving a dangerous weapon

with intent to cause bodily injury, the

court shall apply both the base offense

level and subsection (b)(2).

3. More than Minimal Planning.—For

purposes of subsection (b)(1), waiting to

commit the offense when no witnesses

were present would not alone constitute

more than minimal planning. However,

luring the victim to a specific location

or wearing a ski mask to prevent

identification would constitute more

than minimal planning.’’.

The Commentary to § 2A2.2 captioned

‘‘Background’’ is amended in the first

paragraph by adding at the end the

following:

‘‘This guideline also covers attempted

manslaughter and assault with intent to

commit manslaughter. Assault with

intent to commit murder is covered by

§ 2A2.1 (Assault with Intent to Commit

Murder). Assault with intent to commit

rape is covered by § 2A3.1 (Criminal

Sexual Abuse).’’; and by striking the

second paragraph in its entirety and

inserting the following:

‘‘There are a number of federal

provisions that address varying degrees

of assault and battery. For example, if

the assault is upon a federal officer

while engaged in or on account of the

performance of official duties, the

maximum term of imprisonment

pursuant to 18 U.S.C. 111(a)(2) is three

years. If a deadly or dangerous weapon

is used in the assault on a federal

officer, or if the assault results in bodily

injury, the maximum term of

imprisonment is ten years. If a

dangerous weapon is used to assault a

person who is not a federal officer, and

the weapon was used with the intent to

do bodily harm, without just cause or

excuse, the maximum term of

imprisonment pursuant to 18 U.S.C.

§ 113(a)(3) also is ten years. If an assault

results in serious bodily injury, the

maximum term of imprisonment

pursuant to 18 U.S.C. 113(a)(6) is ten

years, unless the injury constitutes

maiming by scalding, corrosive, or

caustic substances pursuant to18 U.S.C.

§ 114, in which case the maximum term

of imprisonment is twenty years.’’.

Proposed Amendment: Circuit Conflict

Concerning Certain Fraudulent

Misrepresentations

6. Synopsis of Proposed Amendment

This proposed amendment resolves a

circuit conflict regarding the scope of

the enhancement in subsection (b)(4)(A)

of § 2F1.1 (Fraud and Deceit) for

misrepresentation that the defendant

was acting on behalf of a charitable,

educational, religious, or political

organization, or a government agency.

Specifically, the conflict concerns

whether the misrepresentation applies

only in cases in which the defendant

does not have any authority to act on

behalf of the covered organization or

government agency or if it applies more

broadly (i.e., to cases in which the

defendant, who has a legitimate

connection to the covered organization

or government agency, misrepresents

that the defendant was acting solely on

behalf of the organization or agency).

Compare e.g., United States v. Marcum

16 F.3d 599 (4th Cir. 1994)

(enhancement appropriate even though

defendant did not misrepresent his

authority to act on behalf of the

organization but rather only

misrepresented that he was conducting

an activity wholly on behalf of the

organization), with United States v.

Frazier, 5 F.3d 1105 (10th Cir. 1995)

(application of the enhancement is

limited to cases in which the defendant

exploits his victim by claiming to have

authority which in fact does not exist).

The proposed amendment provides

for application of the enhancement if

(A) the defendant falsely represented

that the defendant was an employee of

a covered organization or a government

agency; or (B) the defendant was an

employee of a covered organization or a

government agency who represented

that the defendant was acting solely for

the benefit of the organization or agency

when, in fact, the defendant intended to

divert all or part of that benefit (for

example, for the defendant’s personal

gain). Under either scenario, it is the

representation that enables the

defendant to commit the offense. To

avoid double counting in the case of an

employee described in clause (B) who

also holds a position of trust, the

proposed amendment provides an

application note instructing the court

not to apply § 3B1.3 (Abuse of Position

of Trust or Use of Special Skill) if the

same conduct forms the basis both for

the enhancement in § 2F1.1(b)(4)(A) and

the adjustment in § 3B1.3.

The proposed amendment also

addresses the issue of the embezzler

who works for a covered organization or

government agency. The proposed

amendment provides that embezzlement

of funds by an employee of a covered

organization or government agency,

without more, is not sufficient to trigger

application of the enhancement.

However, such an employee who also

holds a position of trust may be subject

to an adjustment pursuant to § 3B1.3.

Proposed Amendment

The Commentary to § 2F1.1 captioned

‘‘Application Notes’’ is amended by

striking Note 5 in its entirety and

inserting the following:

5. Misrepresentation.—Subsection

(b)(4)(A) applies in any case in which

(A) the defendant represented that the

defendant was an employee or

authorized agent of a charitable,

educational, religious, or political

organization, or government agency

when, in fact, the defendant was not

such an employee or agent; or (B) the

defendant was an employee or agent of

the organization or agency and

represented that the defendant was

acting solely to obtain a benefit for the

organization or agency, when in fact, the

defendant intended to divert all or part

of that benefit (e.g., for the defendant’s

personal gain). Subsection (b)(4)(A)

would apply, for example, to the

following:

(A) A defendant who solicits

contributions for a non-existent famine

relief organization.

(B) A defendant who solicits

donations from church members by

falsely claiming to be a fund raiser for

a religiously affiliated school.

(C) A defendant, chief of a local fire

department, who conducts a public

fund raiser representing that the

purpose of the fund raiser is to procure

sufficient funds for a new fire engine

when, in fact, the defendant diverts

some of the funds for the defendant’s

personal benefit.

If the conduct that forms the basis for

an enhancement under subsection

(b)(4)(A) is the only conduct that forms

the basis for an adjustment under

§ 3B1.3 (Abuse of Position of Trust or

Use of Special Skill), do not apply an

adjustment under § 3B1.3.

The embezzlement of funds alone is

not sufficient to warrant application of

subsection (b)(4)(A). The embezzled

funds must have been solicited pursuant

to a misrepresentation that the

defendant was acting to obtain a benefit

for the organization or agency. However,

if a defendant who embezzles funds

66798 Federal Register / Vol. 65, No. 216 / Tuesday, November 7, 2000 / Notices

holds a position of public or private

trust, § 3B1.3 (Abuse of Position of Trust

or Use of Special Skill) may apply.’’.

Proposed Amendment: Circuit Conflict

Concerning Certain Drug Defendants

and Mitigating Role

7. Synopsis of Proposed Amendment

This amendment proposes to resolve

a circuit conflict regarding whether

application of § 3B1.2 (Mitigating Role)

is precluded (i.e., without the necessity

of applying the guideline to the facts) in

the case of a single defendant drug

courier if the defendant’s base offense

level is determined solely by the

quantity personally handled by the

defendant and that quantity constitutes

all of the defendant’s relevant conduct.

Compare e.g., United States v. IsazaZapata, 148 F.3d 236, 241 (3d. Cir.

1998) (defendant who pleaded guilty to

importing heroin was sentenced based

on amounts in his personal possession,

but if he can meet the requirements of

§ 3B1.2 he is entitled to the reduction

upon appropriate proof) with United

States v. Isienyi, 207 F.3d 390 (7th Cir.

2000) (defendant pleaded guilty to one

count of importing a specified quantity

of heroin; held defendant ineligible for

a mitigating role adjustment when his

offense level consisted only of amounts

he personally handled).

The proposed amendment adopts the

view that such a defendant, in a single

defendant case, is not precluded from

receiving a mitigating role adjustment.

In addition to resolving the circuit

conflict, the proposed amendment (A)

incorporates commentary from the

Introduction to Chapter Three, Part B

(Role in the Offense) that there must be

more than one participant before

application of a mitigating role

adjustment may be considered; (B)

incorporates the definition of

‘‘participant’’ found in the aggravating

role guideline; (C) amends commentary

to indicate that the mitigating role

adjustment ordinarily is not warranted

if the defendant receives a lower offense

level than warranted by the actual

criminal conduct because, for example,

the defendant was convicted of a less

serious offense or otherwise was held

accountable under a plea for a lesser

quantity of drugs than warranted by the

defendant’s actual conduct; (D) deletes

commentary language that the minimal

role adjustment is intended to be used

infrequently; and (E) makes technical

amendments to the guideline (such as

the addition of headings for, and the

reordering of, application notes in the

commentary) that are intended to have

no substantive impact on the guideline.

Proposed Amendment

The Commentary to § 3B1.2 captioned

‘‘Application Notes’’ is amended in

Note 1 by inserting ‘‘Minimal

Participant.—’’ before ‘‘Subsection (a)’’;

and by inserting ‘‘described in

Application Note 3(A)’’ before ‘‘who

plays’’.

The Commentary to § 3B1.2 captioned

‘‘Application Notes’’ is amended in

Note 3 by striking ‘‘For purposes of

§ 3B1.2(b), a minor participant means

any participant’’ and inserting ‘‘Minor

Participant.—Subsection (b) applies to a

defendant described in Application

Note 3(A)’’.

The Commentary to § 3B1.2 is

amended by striking Notes 2 and 4 in

their entirety; by redesignating Notes 1

and 3 as Notes 4 and 5, respectively;

and by inserting before redesignated

Note 4 (formerly Note 1) the following:

‘‘1. Definition.—For purposes of this

guideline, ‘participant’ has the meaning

given that term in Application Note 1 of

§ 3B1.1 (Aggravating Role).

2. Requirement of Multiple

Participants.—This guideline is not

applicable unless more than one

participant was involved in the offense.

See the Introductory Commentary to

this Part (Role in the Offense).

Accordingly, an adjustment under this

guideline may not apply to a defendant

who is the only defendant convicted of

an offense unless that offense involved

other participants in addition to the

defendant and the defendant otherwise

qualifies for such an adjustment.

3. Applicability of Adjustment.—

(A) Substantially Less Culpable than

Average Participant.—This section

provides a range of adjustments for a

defendant who plays a part in

committing the offense that makes him

substantially less culpable than the

average participant.

However, a reduction for a mitigating

role under this section ordinarily is not

warranted in the case of a defendant

who has received an offense level lower

than the offense level warranted by the

defendant’s actual criminal conduct

(because, for example, the defendant

was convicted of a less serious offense

or was held accountable for a quantity

of drugs less than what the defendant

otherwise would have been accountable

under § 1B1.3 (Relevant Conduct)). In

such a case, the defendant is not

substantially less culpable than a

defendant whose only conduct involved

the less serious offense. For example, if

a defendant whose actual conduct

involved a minimal role in the

distribution of 25 grams of cocaine (an

offense having a Chapter Two offense

level of level 14 under § 2D1.1) is

convicted of simple possession of

cocaine (an offense having a Chapter

Two offense level of level 6 under

§ 2D2.1), no reduction for a mitigating

role is warranted because the defendant

is not substantially less culpable than a

defendant whose only conduct involved

the simple possession of cocaine.

(B) Fact-Based Determination.—The

determination whether to apply

subsection (a) or subsection (b), or an

intermediate adjustment, involves a

determination that is heavily dependent

upon the facts of the particular case. As

with any other factual issue, the court,

in weighing the totality of the

circumstances, is not required to find,

based solely on the defendant’s bare

assertion, that such a role adjustment is

warranted.

(C) Applicability to Certain

Defendants.—A defendant who is

convicted of a drug trafficking offense,

whose role in that offense was limited

to transporting or storing drugs and

who, based on the defendant’s criminal

conduct, is accountable under § 1B1.3

(Relevant Conduct) only for the quantity

of drugs the defendant personally

transported or stored is not precluded

from receiving an adjustment under this

guideline.’’.

The Commentary to § 3B1.2 is

amended by striking the background in

its entirety.

Issues for Comment: The Commission

invites comment on the following:

(1) With respect to a defendant whose

role in a drug offense is limited to

transporting or storing drugs, should the

Commission, as an alternative to the

proposed amendment, preclude such a

defendant from receiving any mitigating

role adjustment under § 3B1.2?

Alternatively, should the Commission

provide that such a defendant may

qualify only for a minor role adjustment,

but not a minimal role adjustment?

(2) Should the example in proposed

Application Note 3(C) (i.e., that a

defendant whose role in a drug

trafficking offense is limited to

transporting or storing drugs and who is

accountable under § 1B1.3 (Relevant

Conduct) only for the quantity of drugs

the defendant personally transported or

stored is not precluded from receiving a

mitigating role adjustment) be

broadened to make clear that the rule is

intended to cover defendants convicted

of offenses other than drug trafficking

offenses who have a similarly limited

role in the offense? Specifically, should

the example be expanded to make clear

that the rule is intended to apply to a

defendant who has a similarly limited

role in any offense and who is

accountable under § 1B1.3 only for that

Federal Register / Vol. 65, No. 216 / Tuesday, November 7, 2000 / Notices 66799

portion of the offense for which the

defendant was personally involved?

[FR Doc. 00–28564 Filed 11–6–00; 8:45 am]

BILLING CODE 2210–40–P

SMALL BUSINESS ADMINISTRATION

Data Collection Available for Public

Comments and Recommendations

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: Submit comments on or before

January 8, 2001.

ADDRESSES: Send all comments

regarding whether these information

collections are necessary for the proper

performance of the function of the

agency, whether the burden estimate is

accurate, and if there are ways to

minimize the estimated burden and

enhance the quality of the collections, to

James Rivera, Senior Program Analyst,

Office of Disaster, Small Business

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

Suite 6050.

FOR FURTHER INFORMATION CONTACT:

James Rivera, Senior Program Analyst,

202–205–6734 or Curtis B. Rich,

Management Analyst, (202)205–7030.

SUPPLEMENTARY INFORMATION:

Title: Disaster Business Loan

Application.

Form No’s: 5, 739A and 1368.

Description of Respondents: Small

Businesses.

Annual Responses: 16,853.

Annual Burden: 48,561.

Title: Disaster Survey Worksheet.

Form No: 987.

Description of Respondents:

Individuals, Businesses, and Public

Officials within an area requesting a

Disaster Declaration.

Annual Responses: 4,000.

Annual Burden: 332.

Curtis B. Rich,

Acting Chief, Administrative Information

Branch.

[FR Doc. 00–28452 Filed 11–6–00; 8:45 am]

BILLING CODE 8025–01–P

SMALL BUSINESS ADMINISTRATION

[Declaration of Economic Injury Disaster

#9J35]

State of Alaska

Kenai Peninsula Borough and the

contiguous Boroughs of MatanuskaSusitna and Lake and Peninsula,

together with the Regional Educational

Attendance Area #10 (Chugach) and the

Municipality of Anchorage, in the State

of Alaska, constitute an economic injury

disaster area due to severe storms and

flooding in September of 1995 that

resulted in a low return of sockeye

salmon to their spawning grounds in the

lower Kenai River during the year 2000.

Eligible small businesses and small

agricultural cooperatives without credit

available elsewhere may file

applications for economic injury

assistance for this disaster until the

close of business on July 24, 2001 at the

address listed below or other locally

announced locations: U.S. Small

Business Administration, Disaster Area

4 Office, P. O. Box 13795, Sacramento,

CA 95853–4795.

The interest rate for eligible small

businesses and small agricultural

cooperatives is 4 percent.

(Catalog of Federal Domestic Assistance

Program No. 59002.)

Dated: October 24, 2000.

Kris Swedin,

Acting Administrator.

[FR Doc. 00–28453 Filed 11–6–00; 8:45 am]

BILLING CODE 8025–01–P

SMALL BUSINESS ADMINISTRATION

[Declaration of Disaster #3291; Amendment

#3]

State of Idaho

In accordance with information

received from the Federal Emergency

Management Agency, dated October 20,

2000, the above-numbered Declaration

is hereby amended to extend the

deadline for filing applications for

physical damage caused by this disaster

from October 31, 2000 to November 30,

2000.

All other information remains the

same, i.e., the deadline for filing

applications for economic injury is June

1, 2001.

(Catalog of Federal Domestic Assistance

Program Nos. 59002 and 59008)

Dated: October 25, 2000.

Herbert L. Mitchell,

Acting Associate Administrator for Disaster

Assistance.

[FR Doc. 00–28451 Filed 11–6–00; 8:45 am]

BILLING CODE 8025–01–P

DEPARTMENT OF STATE

[Public Notice No. 3450]

Proposed Protocol on Rail Equipment

to the Draft Convention Sponsored by

UNIDROIT on International Mobile

Equipment Finance; Meeting Notice

AGENCY: Department of State.

ACTION: The International Finance Study

Group of the State Department’s

Advisory Committee on Private

International Law will meet to review a

proposed protocol on rail equipment to

the draft UNIDROIT convention on

equipment finance, and its effect on

cross-border financing and trade

involving the railway industry. The

meeting will be held in Washington,

D.C. on Tuesday, November 14, 2000 at

the Association of American Railroads

Conference Center (4th floor).

Agenda

The meeting will cover the purpose

and concepts of the proposed

UNIDROIT Convention on international

interests in mobile equipment; the

application of asset-based financing to

railway equipment; the recent meeting

of the ICAO Legal Committee at

Montreal on the proposed Convention

in relation to aircraft and the draft

Aircraft Equipment Protocol, and other

international developments relevant to

rail finance.

Comments will be requested on draft

provisions of the proposed Rail

Equipment Protocol. The intersection

with recent revisions to the Uniform

Commercial Code in the United States

will be examined, along with personal

property laws of Canada, Mexico and

other countries as time permits, as well

as related draft conventions and model

national laws on secured financing,

including work underway at UNCITRAL

(the United Nations Commission on

International Trade Law) on receivables

financing and the OAS (Organization of

American States) on a model InterAmerican national law on secured

financing.

Background

The United States has been an active

participant in negotiations on a

proposed multilateral convention

(UNIDROIT Convention) to provide for

the creation and enforceability of