[Federal Register Volume 71, Number 176 (Tuesday, September 12, 2006)]
[Notices]
[Pages 53736-53737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-15076]


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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, policy statements, and commentary.

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SUMMARY: Pursuant to section 1(c) of the Stop Counterfeiting in 
Manufactured Goods Act, Public Law 109-181, the Commission hereby gives 
notice of a temporary, emergency amendment to the sentencing 
guidelines, policy statements, and commentary. This notice sets forth 
the temporary, emergency amendment and the reason for amendment.

DATE: The Commission has specified an effective date of September 12, 
2006, 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 1(c) of the 
Stop Counterfeiting in Manufactured Goods Act, Public Law 109-181, by 
September 12, 2006. 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 the specified effective date and not to publish the 
promulgated amendment 30 days or more before such date. 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 1(c) of 
Public Law 109-181.

Ricardo H. Hinojosa,
Chair.

    Amendment: The Commentary to Sec.  2B5.3 captioned ``Application 
Notes'' is amended in Note 2(A) by adding at the end the following:

    (vii) A case under 18 U.S.C. Sec.  2318 or Sec.  2320 that 
involves a counterfeit label, patch, sticker, wrapper, badge, 
emblem, medallion, charm, box, container, can, case, hangtag, 
documentation, or packaging of any type or nature (I) that has not 
been affixed to, or does not enclose or accompany a good or service; 
and (II) which, had it been so used, would appear to a reasonably 
informed purchaser to be affixed to, enclosing or accompanying an 
identifiable, genuine good or service. In such a case, the 
'infringed item' is the identifiable, genuine good or service.

    Reason for Amendment: This amendment implements the emergency 
directive in section 1(c) of the Stop Counterfeiting in Manufactured 
Goods Act, Public Law 109-181. The directive, which requires the 
Commission to promulgate an amendment under emergency amendment 
authority by September 12, 2006, instructs the Commission to ``review, 
and if appropriate, amend the Federal sentencing guidelines and policy 
statements applicable to persons convicted of any offense under section 
2318 or 2320 of title 18, United States Code * * *.'' The directive 
further provides that the Commission shall:

determine whether the definition of ``infringement amount'' set 
forth in application note 2 of section 2B5.3 of the Federal 
sentencing guidelines is adequate to address situations in which the 
defendant has been convicted of one of the offenses [under section 
2318 or 2320 of title 18, United States Code,] and the item in which 
the defendant trafficked was not an infringing item but rather was 
intended to facilitate infringement, such as an anti-circumvention 
device, or the item in which the defendant trafficked was infringing 
and also was intended to facilitate infringement in another good or 
service, such as a counterfeit label, documentation, or packaging, 
taking into account cases such as U.S. v. Sung, 87 F.3d 194 (7th 
Cir. 1996).

    The emergency amendment adds subdivision (vii) to Application Note 
2(A) of Sec.  2B5.3 (Criminal Infringement of Copyright or Trademark) 
to provide that the infringement amount is based on the retail value of 
the infringed item in a case under 18 U.S.C. 2318 or 2320 that involves 
a counterfeit label, patch, sticker, wrapper, badge, emblem, medallion, 
charm, box, container, can, case, hangtag, documentation, or packaging 
of any type or nature (I) that has not been affixed to, or does not 
enclose or accompany a good or service; and (II) which, had it been so 
used, would appear to a reasonably informed purchaser to be affixed to, 
enclosing or accompanying an identifiable, genuine good or service. In 
such a case, the

[[Page 53737]]

``infringed item'' is the identifiable, genuine good or service.

[FR Doc. E6-15076 Filed 9-11-06; 8:45 am]
BILLING CODE 2211-01-P