[Federal Register: January 18, 2008 (Volume 73, Number 13)]
[Notices]
[Page 3504-3505]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18ja08-97]
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UNITED STATES SENTENCING COMMISSION
Sentencing Guidelines for United States Courts
AGENCY: United States Sentencing Commission.
ACTION: Notice of a temporary, emergency amendment to sentencing
guidelines and commentary.
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SUMMARY: Pursuant to section 5(c) of the Emergency and Disaster
Assistance Fraud Penalty Enhancement Act of 2007, Public Law 110-179,
the Commission hereby gives notice of a temporary, emergency amendment
to the sentencing guidelines and commentary. This notice sets forth the
temporary, emergency amendment and the reason for amendment.
DATES: The Commission has specified an effective date of February 6,
2008, for the emergency amendment.
FOR FURTHER INFORMATION CONTACT: Michael Courlander, Public Affairs
Officer, Telephone: (202) 502-4590.
SUPPLEMENTARY INFORMATION: The Commission must promulgate a temporary,
emergency amendment to implement the directive in section 5(c) of the
Emergency and Disaster Assistance Fraud Penalty Enhancement Act of
2007, Public Law 110-179, by February 6, 2008. The statutory deadline
for the promulgation of the temporary, emergency amendment, in
conjunction with the Commission's public meeting schedule (the
promulgation of such amendments must occur in a public meeting), made
it impracticable to publish a proposed temporary, emergency amendment
in the Federal Register in order to provide an opportunity for public
comment, and to publish the promulgated amendment not less than 30 days
before the effective date. The Commission therefore had good cause not
to publish a proposed amendment before promulgation of the amendment
and not to publish the promulgated amendment 30 days or more before the
specified effective date of the amendment. See 5 U.S.C. 553(b), (d)(3).
The temporary, emergency amendment 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 5(c) of Pub.
L. 110-179.
Ricardo H. Hinojosa,
Chair.
1. Amendment: Section 2B1.1(b) is amended by adding at the end the
following:
[[Page 3505]]
``(16) If the offense involved fraud or theft involving any benefit
authorized, transported, transmitted, transferred, disbursed, or paid
in connection with a declaration of a major disaster or an emergency,
increase by 2 levels.''.
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended in Note 3 by inserting after the paragraph that begins ``(III)
Offenses Under 18 U.S.C. 1030.--'' the following:
``(IV) Disaster Fraud Cases.--In a case in which subsection (b)(16)
applies, reasonably foreseeable pecuniary harm includes the
administrative costs to any federal, state, or local government entity
or any commercial or not-for-profit entity of recovering the benefit
from any recipient thereof who obtained the benefit through fraud or
was otherwise ineligible for the benefit that were reasonably
foreseeable.''.
The Commentary to Sec. 2B1.1 captioned ``Application Notes'' is
amended by redesignating Notes 15 through 19 as Notes 16 through 20,
respectively; and by inserting after Note 14 the following:
``15. Application of Subsection (b)(16).--
(A) Definitions.--For purposes of this subsection:
`Emergency' has the meaning given that term in 42 U.S.C. 5122.''.
`Major disaster' has the meaning given that term in 42 U.S.C. 5122.
The Commentary to Sec. 2B1.1 captioned ``Background'' is amended
by adding at the end the following:
``Subsection (b)(16) implements the directive in section 5 of
Public Law 110-179.''.
Appendix A (Statutory Index) is amended by inserting after the line
reference to 18 U.S.C. 1039 the following:
``18 U.S.C. 1040 2B1.1''.
Reason for Amendment: This amendment implements the emergency
directive in section 5 of the Emergency and Disaster Assistance Fraud
Penalty Enhancement Act of 2007, Public Law 110-179. The directive,
which requires the Commission to promulgate an amendment under
emergency amendment authority by February 6, 2008, directs that the
Commission forthwith shall--promulgate sentencing guidelines or amend
existing sentencing guidelines to provide for increased penalties for
persons convicted of fraud or theft offenses in connection with a major
disaster declaration under section 401 of the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (42 U.S.C. 5170) or an
emergency declaration under section 501 of the Robert T. Stafford
Disaster Relief and Emergency Assistance Act (42 U.S.C. 5191) * * *.
Section 5(b) of the Act further requires the Commission to--
(1) Ensure that the sentencing guidelines and policy statements
reflect the serious nature of the offenses described in subsection (a)
and the need for aggressive and appropriate law enforcement action to
prevent such offenses;
(2) Assure reasonable consistency with other relevant directives
and with other guidelines;
(3) Account for any aggravating or mitigating circumstances that
might justify exceptions, including circumstances for which the
sentencing guidelines currently provide sentencing enhancements;
(4) Make any necessary conforming changes to the sentencing
guidelines; and
(5) Assure that the guidelines adequately meet the purposes of
sentencing as set forth in section 3553(a)(2) of title 18, United
States Code.
The amendment addresses the directive by creating a two-level
enhancement that applies if the offense involved fraud or theft in
connection with a declaration of a major disaster or emergency, as
those terms are defined in 42 U.S.C. Sec. 5122. In addition, the
amendment modifies Application Note 3 to provide that for purposes
of determining loss under subsection (b)(1), reasonably foreseeable
pecuniary harm includes certain administrative costs in such cases.
[FR Doc. E8-889 Filed 1-17-08; 8:45 am]
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