Federal Register / Vol. 70, No. 204 / Monday, October 24, 2005 / Notices 61489 

14 17 CFR 200.30–3(a)(12). 

should be submitted on or before 

November 14, 2005. 

For the Commission, by the Division of 

Market Regulation, pursuant to delegated 

authority.14

J. Lynn Taylor, 

Assistant Secretary. 

[FR Doc. E5–5843 Filed 10–21–05; 8:45 am] 

BILLING CODE 8010–01–P 

UNITED STATES SENTENCING 

COMMISSION 

Sentencing Guidelines for United 

States Courts 

AGENCY: United States Sentencing 

Commission. 

ACTION: Notice of temporary, emergency 

amendments to sentencing guidelines, 

policy statements, and commentary. 

SUMMARY: Pursuant to (A) section 105 of 

the Family Entertainment and Copyright 

Act of 2005, Pub. L. 109–9 (the 

‘‘FECA’’); and (B) the United States 

Parole Commission Extension and 

Sentencing Commission Authority Act 

of 2005, Pub. L. 109–76 (pertaining to 

the directive in section 6703 of the 

Intelligence Reform and Terrorism 

Prevention Act of 2004, Pub. L. 108–

458), the Commission hereby gives 

notice of temporary, emergency 

amendments to the sentencing 

guidelines, policy statements, and 

commentary. This notice sets forth the 

temporary, emergency amendments and 

the reason for each amendment. 

DATES: The Commission has specified 

an effective date of October 24, 2005, for 

the emergency amendments. 

FOR FURTHER INFORMATION CONTACT: 

Michael Courlander, Public Affairs 

Officer, Telephone: (202) 502–4590. 

SUPPLEMENTARY INFORMATION: The 

Commission must promulgate 

temporary, emergency amendments to 

implement the FECA directives by 

October 24, 2005, and to implement the 

directive in United States Parole 

Commission Extension and Sentencing 

Commission Authority Act of 2005 by 

November 27, 2005. The statutory 

deadlines for the promulgation of the 

temporary, emergency amendments, in 

conjunction with the Commission’s 

public meeting schedule (the 

promulgation of such amendments must 

occur in a public meeting) and pressing 

needs of other Commission business, 

made it impracticable to publish 

proposed temporary, emergency 

amendments in the Federal Register in 

order to provide an opportunity for 

public comment. The Commission 

therefore had good cause not to publish 

proposed amendments before their 

effective date. See 5 U.S.C. 553(b), 

(d)(3). 

The temporary, emergency 

amendments set forth in this notice also 

may be accessed through the 

Commission’s Web site at http:// 

www.ussc.gov. 

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

section 105 of Pub. L. 109–9; and Pub. L. 

109–76. 

Ricardo H. Hinojosa, 

Chair. 

1. Amendment: Section 2B5.3(b) is 

amended by redesignating subsections 

(b)(2) through (b)(4) as subsections (b)(3) 

through (b)(5), respectively; and by 

inserting after subsection (b)(1) the 

following: 

‘‘(2) If the offense involved the display, 

performance, publication, reproduction, or 

distribution of a work being prepared for 

commercial distribution, increase by 2 

levels.’’. 

The Commentary to § 2B5.3 captioned 

‘‘Application Notes’’ is amended in Note 1 by 

striking ‘‘ ‘Uploading’ ’’ and all that follows 

through ‘‘the infringing item.’’ and inserting 

the following: 

‘‘ ‘Uploading’ means making an infringing 

item available on the Internet or a similar 

electronic bulletin board with the intent to 

enable other persons to (A) download or 

otherwise copy the infringing item; or (B) 

have access to the infringing item, including 

by storing the infringing item in an openly 

shared file. ‘Uploading’ does not include 

merely downloading or installing an 

infringing item on a hard drive on a 

defendant’s personal computer unless the 

infringing item is placed in an openly shared 

file. 

‘Work being prepared for commercial 

distribution’ has the meaning given that term 

in 17 U.S.C. 506(a)(3).’’. 

The Commentary to § 2B5.3 captioned 

‘‘Application Notes’’ is amended in Note 2 in 

subdivision (A) by inserting after subdivision 

(v) the following: 

‘‘(vi) The offense involves the display, 

performance, publication, reproduction, or 

distribution of a work being prepared for 

commercial distribution. In a case involving 

such an offense, the ‘retail value of the 

infringed item’ is the value of that item upon 

its initial commercial distribution.’’; 

and by inserting after subdivision (D) the 

following: 

‘‘(E) Indeterminate Number of Infringing 

Items.—In a case in which the court cannot 

determine the number of infringing items, the 

court need only make a reasonable estimate 

of the infringement amount using any 

relevant information, including financial 

records.’’. 

The Commentary to § 2B5.3 captioned 

‘‘Application Notes’’ is amended by striking 

Note 3; and by redesignating Notes 4 and 5 

as Notes 3 and 4, respectively. 

Appendix A (Statutory Index) is amended 

by inserting after the line reference to ‘‘18 

U.S.C. 2319(A)’’ the following: ‘‘18 U.S.C. 

2319B 2B5.3’’. 

Reason for Amendment: This proposed 

amendment implements the directive in 

section 105 of the Family Entertainment and 

Copyright Act of 2005, Pub. L. 109–9. The 

directive, which requires the Commission to 

promulgate an amendment under emergency 

amendment authority by October 24, 2005, 

instructs the Commission to ‘‘review and, if 

appropriate, amend the Federal sentencing 

guidelines and policy statements applicable 

to persons convicted of intellectual property 

rights crimes * * *’’

‘‘In carrying out [the directive], the 

Commission shall—

(1) Take all appropriate measures to ensure 

that the Federal sentencing guidelines and 

policy statements * * * are sufficiently 

stringent to deter, and adequately reflect the 

nature of, intellectual property rights crimes; 

(2) Determine whether to provide a 

sentencing enhancement for those convicted 

of the offenses [involving intellectual 

property rights], if the conduct involves the 

display, performance, publication, 

reproduction, or distribution of a copyrighted 

work before it has been authorized by the 

copyright owner, whether in the media 

format used by the infringing party or in any 

other media format; 

(3) Determine whether the scope of 

‘uploading’ set forth in application note 3 of 

section 2B5.3 of the Federal sentencing 

guidelines is adequate to address the loss 

attributable to people who, without 

authorization, broadly distribute copyrighted 

works over the Internet; and 

(4) Determine whether the sentencing 

guideline and policy statements applicable to 

the offenses [involving intellectual property 

rights] adequately reflect any harm to victims 

from copyright infringement if law 

enforcement authorities cannot determine 

how many times copyrighted material has 

been reproduced or distributed.’’

Pre-Release Works 

The proposed amendment provides a 

separate two-level enhancement if the 

offense involved a pre-release work. The 

enhancement and the corresponding 

definition use language directly from 17 

U.S.C. 506(a) (criminal infringement). 

The amendment adds language to 

Application Note 2 that explains that in 

cases involving pre-release works, the 

infringement amount should be 

determined by using the retail value of 

the infringed item, rather than any 

premium price attributed to the 

infringing item because of its pre-release 

status. The proposed amendment 

addresses concerns that distribution of 

an item before it is legally available to 

the consumer is more serious conduct 

than distribution of other infringing 

items and involves a harm not 

addressed by the current guideline. 

Uploading 

The concern underlying the 

uploading directive pertains to offenses 

61490 Federal Register / Vol. 70, No. 204 / Monday, October 24, 2005 / Notices 

in which the copyrighted work is 

transferred through file sharing. The 

proposed amendment builds on the 

current definition of ‘‘uploading’’ to 

include making an infringing item 

available on the Internet by storing an 

infringing item in an openly shared file. 

The proposed amendment also clarifies 

that uploading does not include merely 

downloading or installing infringing 

items on a hard drive of the defendant’s 

computer unless the infringing item is 

in an openly shared file. By clarifying 

the definition of uploading in this 

manner, Application Note 3, which is a 

restatement of the uploading definition, 

is no longer necessary and the proposed 

amendment deletes the application note 

from the guideline. 

Indeterminate Number 

The proposed amendment addresses 

the final directive by amending 

Application Note 2, which sets forth the 

rules for determining the infringement 

amount. The proposed note provides 

that the court may make a reasonable 

estimate of the infringement amount 

using any relevant information 

including financial records in cases in 

which the court cannot determine the 

number of infringing items. 

New Offense 

Finally, the proposed amendment 

provides a reference in Appendix A 

(Statutory Index) for the new offense at 

18 U.S.C. 2319B. This offense is 

proposed to be referenced to § 2B5.3. 

2. Amendment: Section 2J1.2(b) is 

amended by striking subdivision (1) and 

inserting the following: 

‘‘(1) (Apply the greater): 

(A) If the offense involved causing or 

threatening to cause physical injury to a 

person, or property damage, in order to 

obstruct the administration of justice, 

increase by 8 levels. 

(B) If (i) defendant was convicted under 18 

U.S.C. 1001 or 1505; and (ii) the statutory 

maximum term of imprisonment relating to 

international terrorism or domestic terrorism 

is applicable, increase by 12 levels.’’. 

The Commentary to § 2J1.2 captioned 

‘‘Statutory Provisions’’ is amended by 

striking ‘‘18 U.S.C. 1503’’ and inserting the 

following: 

‘‘18 U.S.C. 1001 when the statutory 

maximum term of imprisonment relating to 

international terrorism or domestic terrorism 

is applicable, 1503’’. 

The Commentary to § 2J1.2 captioned 

‘‘Application Notes’’ is amended in Note 1 by 

inserting after ‘‘Definitions.—For purposes of 

this guideline:’’ the following: 

‘‘ ‘Domestic terrorism’ has the meaning 

given that term in 18 U.S.C. 2331(5). 

‘International terrorism’ has the meaning 

given that term in 18 U.S.C. 2331(1).’’. 

The Commentary to § 2J1.2 captioned 

‘‘Application Notes’’ is amended by striking 

Note 2 and inserting the following: 

‘‘2. Chapter Three Adjustments.—

(A) Inapplicability of Chapter Three, Part 

C.—For offenses covered under this section, 

Chapter Three, Part C (Obstruction) does not 

apply, unless the defendant obstructed the 

investigation, prosecution, or sentencing of 

the obstruction of justice count. 

(B) Interaction with Terrorism 

Adjustment.—If § 3A1.4 (Terrorism) applies, 

do not apply subsection (b)(1)(B).’’. 

Appendix A (Statutory Index) is amended 

in the line referenced to ‘‘18 U.S.C. 1001’’ by 

inserting ‘‘, 2J1.2 when the statutory 

maximum term of imprisonment relating to 

international terrorism or domestic terrorism 

is applicable’’ after 2B1.1’’. 

Reason for Amendment: This amendment 

implements section 6703 of the Intelligence 

Reform and Prevention Act of 2004 (the 

‘‘Act’’), Pub. L. 108–458. Section 6703(a) 

provides an enhanced penalty of not more 

than 8 years of imprisonment for offenses 

under sections 1001(a) and 1505 of title 18, 

United States Code, ‘‘if the offense involves 

international or domestic terrorism (as 

defined in section 2331).’’ Section 6703(b) 

requires the Sentencing Commission to 

amend the sentencing guidelines to provide 

for ‘‘an increased offense level for an offense 

under sections 1001(a) and 1505 of title 18, 

United States Code, if the offense involves 

international or domestic terrorism, as 

defined in section 2331 of such title.’’ The 

Commission is directed under section 3 of 

the United States Parole Commission 

Extension and Sentencing Commission 

Authority Act of 2005, Pub. L. 109–76, to 

promulgate this amendment as an emergency 

amendment. 

First, the amendment references 

convictions under 18 U.S.C. 1001 to 2J1.2 

(Obstruction of Justice) ‘‘when the statutory 

maximum term of imprisonment relating to 

international or domestic terrorism is 

applicable.’’ It also adds a new specific 

offense characteristic at § 2J1.2(b)(1)(B) 

providing for a 12 level increase for a 

defendant convicted under 18 U.S.C. 1001 

and 1505 ‘‘when the statutory maximum term 

of imprisonment relating to international or 

domestic terrorism is applicable.’’ This 12 

level increase is applied in lieu of the current 

8 level increase for injury or threats to 

persons or property. The increase of 12 levels 

is intended to provide parity with the 

treatment of federal crimes of terrorism 

within the limits of the 8 year statutory 

maximum penalty. It is also provided to 

ensure a 5 year sentence of imprisonment for 

offenses that involve international or 

domestic terrorism. 

Second, the amendment adds to 

Application Note 1 definitions for ‘‘domestic 

terrorism’’ and ‘‘international terrorism,’’

using the meanings given the terms at 18 

U.S.C. 2331(5) and (1), respectively. 

Third, the amendment adds to Application 

Note 2 an instruction that if § 3A1.4 

(Terrorism) applies, do not apply 

§ 2J1.2(b)(1)(B). 

[FR Doc. 05–21211 Filed 10–21–05; 8:45 am] 

BILLING CODE 2210–40–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

Applications of Platinum Airlines, Inc. 

for Certificate Authority 

AGENCY: Department of Transportation. 

ACTION: Notice of Order to Show Cause 

(Order 2005–10–13); Dockets OST–

2005–21286 and OST–2005–21287. 

SUMMARY: The Department of 

Transportation is directing all interested 

persons to show cause why it should 

not issue orders finding Platinum 

Airlines, Inc. fit, willing, and able, and 

awarding it certificates of public 

convenience and necessity to engage in 

interstate and foreign charter air 

transportation of persons, property and 

mail. 

DATES: Persons wishing to file 

objections should do so no later than 

October 31, 2005. 

ADDRESSES: Objections and answers to 

objections should be filed in Dockets 

OST–2005–21286 and OST–2005–21287 

and addressed to U.S. Department of 

Transportation, Docket Operations, (M–

30, Room PL–401), 400 Seventh Street, 

SW., Washington, DC 20590, and should 

be served upon the parties listed in 

Attachment A to the order. 

FOR FURTHER INFORMATION CONTACT: 

Vanessa R. Balgobin, Air Carrier Fitness 

Division (X–56, Room 6401), U.S. 

Department of Transportation, 400 

Seventh Street, SW., Washington, DC 

20590, (202) 366–9721. 

Dated: October 17, 2005. 

Susan McDermott, 

Deputy Assistant Secretary for Aviation and 

International Affairs. 

[FR Doc. 05–21199 Filed 10–21–05; 8:45 am] 

BILLING CODE 4910–62–P 

DEPARTMENT OF TRANSPORTATION 

Office of the Secretary 

Application of U.S. Helicopter 

Corporation for Certificate Authority 

AGENCY: Department of Transportation. 

ACTION: Notice of Order to Show Cause 

(Order 2005–10–12) Docket OST–2005–

20405. 

SUMMARY: The Department of 

Transportation is directing all interested 

persons to show cause why it should 

not issue an order finding U.S. 

Helicopter Corporation fit, willing, and 

able, and awarding it a certificate of 

public convenience and necessity to 

engage in interstate scheduled air 

transportation of persons, property, and 

mail.