AMENDMENT 672

Amendment: Section 2Q1.2(b) is amended by adding at the end the following:

"(7) If the defendant was convicted under 49 U.S.C. § 5124 or § 46312, increase by 2 levels.".

The Commentary to §2Q1.2 captioned "Statutory Provisions" is amended by striking "; 49 U.S.C. § 60123(d)" and inserting "; 49 U.S.C. §§ 5124, 46312".

The Commentary to §2Q1.2 captioned "Application Notes" is amended by striking Note 9 as follows:

"9. Where a defendant has previously engaged in similar misconduct established by a civil adjudication or has failed to comply with an administrative order, an upward departure may be warranted. See §4A1.3 (Adequacy of Criminal History Category).",

and inserting the following:

"9. Other Upward Departure Provisions.—

(A) Civil Adjudications and Failure to Comply with Administrative Order.—In a case in which the defendant has previously engaged in similar misconduct established by a civil adjudication or has failed to comply with an administrative order, an upward departure may be warranted. See §4A1.3 (Departures Based on Inadequacy of Criminal History Category).

(B) Extreme Psychological Injury.—If the offense caused extreme psychological injury, an upward departure may be warranted. See §5K2.3 (Extreme Psychological Injury).

(C) Terrorism.—If the offense was calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct, an upward departure would be warranted. See Application Note 4 of the Commentary to §3A1.4 (Terrorism).".

Reason for Amendment: This amendment adds a two-level enhancement in §2Q1.2 (Mishandling of Hazardous or Toxic Substances or Pesticides; Recordkeeping, Tampering, and Falsification; Unlawfully Transporting Hazardous Materials in Commerce) for offenders convicted under 49 U.S.C. § 5124 or § 46312. These offenses pose an inherent risk to large populations in a manner not typically associated with other pollution offenses sentenced under the same guideline.

In addition, this amendment adds an application note inviting an upward departure if the offense was calculated to influence or affect the conduct of the government by intimidation or coercion, or to retaliate against government conduct. The Commission added this departure provision to address concerns that terrorists may commit hazardous material transportation offenses because of their potential to cause a one-time, catastrophic event. The upward departure provision would apply in cases in which a defendant who has a terrorist motive is not also convicted of a "federal crime of terrorism" that would trigger application of §3A1.4 (Terrorism).

This amendment also adds an upward departure provision that could apply if the offense resulted in extreme psychological injury. This provision conforms to the upward departure provision found at §2Q1.4 (Tampering or Attempted Tampering with a Public Water System; Threatening to Tamper with a Public Water System).

Effective Date: The effective date of this amendment is November 1, 2004.