[Federal Register Volume 73, Number 13 (Friday, January 18, 2008)]
[Notices]
[Pages 3504-3505]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-889]


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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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