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1673

Destruction of Government Property—Malicious Mischief -- Destruction of energy facility—18 U.S.C. § 1366

Title 18, United States Code, Section 1366 is designed to extend Federal protection to all types of energy production, transmission and distribution facilities, including all transmission lines and pipelines, with the exception of facilities under the jurisdiction of the Nuclear Regulatory Commission, see S. Rep. No. 98-225, 98th Cong., 1st Sess., reprinted in 1984 U.S. Code Cong. and Adm. News 3182, 3501, and natural gas pipeline facilities under the jurisdiction of the Federal Energy Regulatory Commission, see Revision of Title 49, Transportation, United States Code, Pub. L. 103-272, § 5(e)(9), 108 Stat. 745, 1374 (1990).

In creating section 1366, Congress envisioned that this statute would be used only "on a selective, case-by-case basis." See S. Rep. No. 98-225, 98th Cong., 1st Sess., reprinted in 1984 U.S. Code Cong. and Adm. News 3182, 3501-02.

Section 1366 is a specific intent crime requiring the government to prove that defendant acted "knowingly and willfully." In addition to the exceptions above, Federal jurisdiction under § 1366 is dependent upon the existence of any one of three "jurisdictional facts": (1) "significant interruption or impairment of a function of [the] energy facility"; and (2) damage or attempted damage exceeding $100,000; or (3) damage or attempted damage in the amount of $5,000. When the offense causes significant interruption of the facility, or results or would have resulted in damages exceeding $100,000, the defendant is subject to a fine of up to $250,000, ten years imprisonment, or both. If actual or projected damage exceeds $5,000, but is less than $100,000, the defendant may be sentenced to imprisonment for up to five years, a fine of up to $250,000, or both. See 18 U.S.C. §§ 3559(a), 3571.

Section 1366 is a designated "Federal crime of terrorism" if the offense is "calculated to influence or affect the conduct of government by intimidation or coercion, or to retaliate against government conduct . . . ." 18 U.S.C. § 2332b(g)(5). If such is present, the FBI is the primary Federal investigative agency. See 18 U.S.C. § 2332b(f).

[cited in USAM 9-66.500]