AMENDMENT 620

Amendment: Section 2D1.1(b)(5) through (7), Notes 20 and 21 of the Commentary to §2D1.1 captioned "Application Notes", the ninth and tenth paragraphs of the Commentary to §2D1.1 captioned "Background", and §2D1.10, effective December 16, 2000 (see Amendment 608), are repromulgated with the following changes:

Section 2D1.1(b) is amended by striking subdivision (5) as follows:

"(5) If the offense involved (A) an unlawful discharge, emission, or release into the environment of a hazardous or toxic substance; or (B) the unlawful transportation, treatment, storage, or disposal of a hazardous waste, increase by 2 levels.";

by redesignating subdivisions (6) and (7) as subdivisions (5) and (6), respectively; by redesignating subdivisions (5)(A) and (5)(B), as redesignated by this amendment, as subdivisions (5)(B) and (5)(C), respectively; and by inserting before subdivision (5)(B), as redesignated by this amendment, the following:

"(A) If the offense involved (i) an unlawful discharge, emission, or release into the environment of a hazardous or toxic substance; or (ii) the unlawful transportation, treatment, storage, or disposal of a hazardous waste, increase by 2 levels.".

Section 2D1.1(b)(5)(B), as redesignated by this amendment, is amended by striking "subsection (b)(6)(B)" and inserting "subdivision (C)".

The Commentary to §2D1.1 captioned "Application Notes" is amended by striking Note 20 (redesignated as Note 19 by amendment 624) as follows:

"20. Hazardous or Toxic Substances.—Subsection (b)(5) applies if the conduct for which the defendant is accountable under §1B1.3 (Relevant Conduct) involved any discharge, emission, release, transportation, treatment, storage, or disposal violation covered by the Resource Conservation and Recovery Act, 42 U.S.C. § 6928(d), the Federal Water Pollution Control Act, 33 U.S.C. § 1319(c), or the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. §§ 5124, 9603(b). In some cases, the enhancement under subsection (b)(5) may not adequately account for the seriousness of the environmental harm or other threat to public health or safety (including the health or safety of law enforcement and cleanup personnel). In such cases, an upward departure may be warranted. Additionally, any costs of environmental cleanup and harm to persons or property should be considered by the court in determining the amount of restitution under §5E1.1 (Restitution) and in fashioning appropriate conditions of supervision under §§5B1.3 (Conditions of Probation) and 5D1.3 (Conditions of Supervised Release).",

and inserting the following:

"20. Hazardous or Toxic Substances.—Subsection (b)(5)(A) applies if the conduct for which the defendant is accountable under §1B1.3 (Relevant Conduct) involved any discharge, emission, release, transportation, treatment, storage, or disposal violation covered by the Resource Conservation and Recovery Act, 42 U.S.C. § 6928(d); the Federal Water Pollution Control Act, 33 U.S.C. § 1319(c); the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9603(b); or 49 U.S.C. § 5124 (relating to violations of laws and regulations enforced by the Department of Transportation with respect to the transportation of hazardous material). In some cases, the enhancement under subsection (b)(5)(A) may not account adequately for the seriousness of the environmental harm or other threat to public health or safety (including the health or safety of law enforcement and cleanup personnel). In such cases, an upward departure may be warranted. Additionally, in determining the amount of restitution under §5E1.1 (Restitution) and in fashioning appropriate conditions of probation and supervision under §§5B1.3 (Conditions of Probation) and 5D1.3 (Conditions of Supervised Release), respectively, any costs of environmental cleanup and harm to individuals or property shall be considered by the court in cases involving the manufacture of amphetamine or methamphetamine and should be considered by the court in cases involving the manufacture of a controlled substance other than amphetamine or methamphetamine. See 21 U.S.C. § 853(q) (mandatory restitution for cleanup costs relating to the manufacture of amphetamine and methamphetamine).".

The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 21(A) (redesignated as Note 20(A) by amendment 624) by striking "(b)(6)" and inserting "(b)(5)(B) or (C)"; by striking "may consider factors such as the following" and inserting "shall include consideration of the following factors"; by striking "or" after "at the laboratory," and inserting "and"; by striking "or" after "disposed," and inserting "and"; by striking "or" after "the offense" and inserting "and"; by striking "amphetamine or methamphetamine"; and by inserting "whether the laboratory is located" after "e.g.,".

The Commentary to §2D1.1 captioned "Application Notes" is amended in Note 21(B) (redesignated as Note 20(B) by amendment 624) by striking "(b)(6)(B)" and inserting "(b)(5)(C)".

The Commentary to §2D1.1 captioned "Background" is amended in the ninth paragraph by inserting "(A)" after "(b)(5)"; and in the tenth paragraph by striking "Subsection (b)(6) implements" and inserting "Subsections (b)(5)(B) and (C) implement, in a broader form,"; and by striking "878" and inserting "310".

The Commentary to §2D1.10 captioned "Application Note" is amended in Note 1 by striking "may consider factors such as the following" and inserting "shall include consideration of the following factors"; by striking "or" after "at the laboratory," and inserting "and"; by striking "or" after "disposed," and inserting "and"; by striking "or" after "the offense" and inserting "and"; by striking "amphetamine or methamphetamine"; and by inserting "whether the laboratory is located" after "e.g.,".

The Commentary to §2D1.10 captioned "Background" is amended by striking "878" and inserting "310".

Reason for Amendment: The Commission promulgated an emergency amendment addressing the directive in section 102 (the "substantial risk directive") of the Methamphetamine Anti-Proliferation Act of 2000, Pub. L. 106–310 (the "Act"), with an effective date of December 16, 2000. (See Amendment 608.) This amendment repromulgates the emergency amendment, with modifications, as a permanent amendment.

The substantial risk directive instructs the Commission to amend the federal sentencing guidelines with respect to any offense relating to the manufacture, attempt to manufacture, or conspiracy to manufacture amphetamine or methamphetamine in (1) the Controlled Substances Act, 21 U.S.C. §§ 801-90; (2) the Controlled Substances Import and Export Act, 21 U.S.C. §§ 951-71; or (3) the Maritime Drug Law Enforcement Act, 46 U.S.C. App. §§ 1901-04.

The Act requires the Commission, in carrying out the substantial risk directive, to provide the following enhancements—

(A) if the offense created a substantial risk of harm to human life (other than a life described in subparagraph (B)) or the environment, increase the base offense level for the offense—

(i) by not less than 3 offense levels above the applicable level in effect on the date of the enactment of this Act; or

(ii) if the resulting base offense level after an increase under clause (i) would be less than level 27, to not less than level 27; or

(B) if the offense created a substantial risk of harm to the life of a minor or incompetent, increase the base offense level for the offense—

(i) by not less than 6 offense levels above the applicable level in effect on the date of the enactment of this Act; or

(ii) if the resulting base offense level after an increase under clause (i) would be less than level 30, to not less than level 30.

The emergency amendment provided enhancements in §§2D1.1 (Unlawful Manufacturing, Importing, Exporting, or Trafficking (Including Possession with Intent to Commit These Offenses); Attempt or Conspiracy) and 2D1.10 (Endangering Human Life While Illegally Manufacturing a Controlled Substance) that also apply in the case of an attempt or a conspiracy to manufacture amphetamine or methamphetamine. The amendment did not amend §2D1.11 (Unlawfully Distributing, Importing, Exporting or Possessing a Listed Chemical; Attempt or Conspiracy) or §2D1.12 (Unlawful Possession, Manufacture, Distribution, or Importation of Prohibited Flask or Equipment). Although offenses that involve the manufacture of amphetamine or methamphetamine also are referenced in Appendix A (Statutory Index) to §§2D1.11 and 2D1.12, the cross references in these guidelines, which apply if the offense involved the manufacture of a controlled substance, will result in application of §2D1.1 and accordingly, the enhancements.

The basic structure of the emergency amendment to §§2D1.1 and 2D1.10 tracked the structure of the substantial risk directive. Accordingly, in §2D1.1, the amendment provided a three-level increase and a minimum offense level of level 27 if the offense (1) involved the manufacture of amphetamine or methamphetamine; and (2) created a substantial risk of harm either to human life or the environment. For offenses that created a substantial risk of harm to the life of a minor or an incompetent, the amendment provided a six-level increase and a minimum offense level of level 30.

However, the structure of the emergency amendment to §2D1.10 differed from the structure of the emergency amendment to §2D1.1 with respect to the first prong of the enhancement (regarding substantial risk of harm to human life or to the environment). Specifically, the emergency amendment provided a three-level increase and a minimum offense level of level 27 if the offense involved the manufacture of amphetamine or methamphetamine without making application of the enhancement dependent upon whether the offense also involved a substantial risk of either harm to human life or the environment. Consideration of whether the offense involves a substantial risk of harm to human life also is unnecessary because §2D1.10 applies only to convictions under 21 U.S.C. § 858, and the creation of a substantial risk of harm to human life is an element of an offense under 21 U.S.C. § 858. Therefore, the base offense level already takes into account the substantial risk of harm to human life. Consideration of whether the offense involved a substantial risk of harm to the environment was unnecessary because the directive predicated application of the enhancement on substantial risk of harm either to human life or to the environment, and the creation of a substantial risk of harm to human life necessarily is taken into account as an element of the offense.

Neither the substantial risk directive nor any statutory provision defines "substantial risk of harm." Based on an analysis of relevant case law that interpreted "substantial risk of harm," the emergency amendment provided commentary setting forth factors that may be relevant in determining whether a particular offense created a substantial risk of harm. The definition of "incompetent" was modeled after several state statutes.

This permanent amendment re-promulgates, with modifications, the emergency amendment regarding the substantial risk directive. This amendment differs from the emergency amendment in several respects:

First, in §2D1.1, this amendment treats the existing specific offense characteristic in §2D1.1(b)(5), relating to a two-level enhancement for environmental violations occurring in the course of a drug trafficking offense, as an alternative to the three-level enhancement for substantial risk of harm to human life or the environment. This portion of the amendment is in response to an issue related to the substantial risk directive regarding how to implement it in a manner consistent with the earlier environmental hazard directive in section 303 of the Comprehensive Methamphetamine Control Act, Pub. L. 104–237. The emergency amendment made the enhancements cumulative. However, this permanent amendment makes the new guideline provision alternative with the pre-existing enhancement for environmental hazards in §2D1.1.

Second, in §2D1.1, this amendment lists four factors that the court "shall", as opposed to "may", consider to determine whether subsection (b)(6)(A) or (B) applies. Similarly, in §2D1.10, this amendment lists four factors the court "shall" consider to determine whether subsection (b)(1)(B) applies. The list of four factors was identified by the Commission to assist the courts in defining the meaning of "substantial risk of harm" for offenses related to the production and trafficking of precursor chemicals and the manufacture of amphetamine and methamphetamine.

Third, in §2D1.1, this amendment provides that the court (1) shall consider any costs of environmental cleanup and harm to individuals and property in cases involving the manufacture of amphetamine or methamphetamine in determining the amount of restitution under §5E1.1 (Restitution) and in fashioning appropriate conditions of probation and supervision under §§5B1.3 (Conditions of Probation) and 5D1.3 (Conditions of Supervised Release), and (2) should consider such costs and harms in cases involving the manufacture of a controlled substance other than amphetamine or methamphetamine.

The amendment also makes a minor technical change in the background commentary.

Effective Date: The effective date of this amendment is November 1, 2001.