AMENDMENT 745
Amendment: Section 2B1.1(c)(4) is amended by inserting "or a paleontological resource" after "resource"; and by inserting "or Paleontological Resources" after "Heritage Resources" each place it appears.
The Commentary to §2B1.1 captioned "Application Notes" is amended in Note 1 by inserting after the paragraph that begins "‘National cemetery’ means" the following:
"‘Paleontological resource’ has the meaning given that term in Application Note 1 of the Commentary to §2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage Resources or Paleontological Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Heritage Resources or Paleontological Resources).".
The Commentary to §2B1.1 captioned "Application Notes" is amended in Note 14(A) by inserting "and 18 U.S.C. § 1348" after "7 U.S.C. § 1 et seq.)".
Section 2B1.5 is amended in the heading by inserting "or Paleontological Resources" after "Heritage Resources" each place it appears.
Section 2B1.5(b) is amended in each of paragraphs (1) and (2) by inserting "or paleontological resource" after "heritage resource"; and in paragraph (5) by inserting "or paleontological resources" after "heritage resources".
The Commentary to §2B1.5 captioned "Statutory Provisions" is amended by inserting "470aaa–5," after "16 U.S.C. §§".
The Commentary to §2B1.5 captioned "Application Notes" is amended in Note 1 by redesignating subparagraphs (A) through (G) as (i) through (vii), respectively; by striking "‘Cultural Heritage Resource’ Defined.—For purposes of this guideline, ‘cultural heritage resource’ means any of the following:" and inserting:
"Definitions.—For purposes of this guideline:
(A) ‘Cultural heritage resource’ means any of the following:";
by striking "(A)" before "has the meaning" and inserting "(I)"; by striking "(B)" before "includes" and inserting "(II)"; and by adding at the end the following:
"(B) ‘Paleontological resource’ has the meaning given such term in 16 U.S.C. § 470aaa.".
The Commentary to §2B1.5 captioned "Application Notes" is amended in Note 2 by striking "Cultural Heritage" both places it appears; by striking "cultural heritage" each place it appears; and by inserting ", e.g.," after "See" each place it appears.
The Commentary to §2B1.5 captioned "Application Notes" is amended in Note 5(B) by striking "cultural heritage"; in Note 6(A) by inserting "or paleontological resources" after "resources", and by striking "cultural heritage" after "involving a" each place it appears; in Note 8 by striking "cultural heritage" each place it appears; and in Note 9 by inserting "or paleontological resources" after "resources" the first place it appears; and by inserting "or paleontological resources" after "resources)".
Section 2D1.11(e) is amended in subdivisions (1)-(10) by inserting the following list I chemicals in the appropriate place in alphabetical order by subdivision as follows:
(1) "1.3 KG or more of Iodine;",
(2) "At least 376.2 G but less than 1.3 KG of Iodine;",
(3) "At least 125.4 G but less than 376.2 G of Iodine;",
(4) "At least 87.8 G but less than 125.4 G of Iodine;",
(5) "At least 50.2 G but less than 87.8 G of Iodine;",
(6) "At least 12.5 G but less than 50.2 G of Iodine;",
(7) "At least 10 G but less than 12.5 G of Iodine;",
(8) "At least 7.5 G but less than 10 G of Iodine;",
(9) "At least 5 G but less than 7.5 G of Iodine;",
(10) "Less than 5 G of Iodine;"; and
in subdivisions (2)-(10), in list II chemicals, by striking the lines referenced to "Iodine", including the period, and in the lines referenced to "Toluene" by striking the semicolon and inserting a period.
Appendix A (Statutory Index) is amended by inserting after the line referenced to 16 U.S.C. § 413 the following:
"16 U.S.C. § 470aaa–5 2B1.1, 2B1.5"; and
by inserting after the line referenced to 42 U.S.C. § 1396h(b)(2) the following:
"42 U.S.C. § 1396w–2 2H3.1".
Reason for Amendment: This multi-part amendment responds to miscellaneous issues arising from legislation recently enacted and other miscellaneous guideline application issues.
First, the amendment responds to the Fraud Enforcement and Recovery Act of 2009, Pub. L. 111–21, which broadened 18 U.S.C. § 1348, a securities fraud statute, to cover commodities fraud. Offenses under 18 U.S.C. § 1348 are referenced in Appendix A (Statutory Index) to §2B1.1 (Larceny, Embezzlement, and Other Forms of Theft; Offenses Involving Stolen Property; Property Damage or Destruction; Fraud and Deceit; Forgery; Offenses Involving Altered or Counterfeit Instruments Other than Counterfeit Bearer Obligations of the United States). Section 2B1.1 includes an enhancement at subsection (b)(17)(B) that applies when specified persons who have fiduciary duties violate commodities law. "Commodities law" is defined in Application Note 14 to mean the Commodities Exchange Act (7 U.S.C. § 1 et seq.), including the rules, regulations, and orders issued by the Commodity Futures Trading Commission. The amendment adds 18 U.S.C. § 1348 to the definition of "commodities law" for purposes of subsection (b)(17)(B). The Commission determined that including 18 U.S.C. § 1348 within the scope of subsection (b)(17)(B) is appropriate to reflect the expanded scope of the statute.
Second, the amendment responds to the Omnibus Public Land Management Act of 2009, Pub. L. 111–11, which created a new offense at 16 U.S.C. § 470aaa-5 making it unlawful to remove, damage, alter, traffic in, or make a false record relating to a paleontological resource on federal land. The amendment amends Appendix A (Statutory Index) to refer offenses under 16 U.S.C. § 470aaa-5 to §§2B1.1 and 2B1.5 (Theft of, Damage to, or Destruction of, Cultural Heritage Resources; Unlawful Sale, Purchase, Exchange, Transportation, or Receipt of Cultural Heritage Resources) because such offenses are similar either to offenses involving cultural heritage resources or, to the extent they involve false records, to fraud offenses. The amendment also makes technical and conforming changes to §§2B1.1 and 2B1.5.
Third, the amendment responds to the Children’s Health Insurance Program Reauthorization Act of 2009, Pub. L. 111–3, which created a new Class A misdemeanor offense at 42 U.S.C. § 1396w-2 regarding the unlawful disclosure of certain protected information related to social security eligibility. The amendment amends Appendix A (Statutory Index) to refer offenses under 42 U.S.C. § 1396w-2 to §2H3.1 (Interception of Communications; Eavesdropping; Disclosure of Certain Private or Protected Information) because such offenses involve invasions of privacy.
Fourth, the amendment responds to a regulatory change in which iodine was upgraded from a List II chemical to a List I chemical. Offenses involving listed chemicals are sentenced under §2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy). Because the maximum base offense level for List I chemicals (level 30) is higher than that for List II chemicals (level 28), the amendment increases the maximum base offense level for offenses involving iodine to level 30 and specifies the amount of iodine needed (1.3 kilograms) for base offense level 30 to apply.
Effective Date: The effective date of this amendment is November 1, 2010.