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Because these systems are fully automated and privately-owned , however , the release solicits comments on whether such entities need to assume all of the functions of traditional SROs or whether the Commission could use its exemptive authority to reduce or eliminate those requirements that are incompatible with the operation of for-profit , non-membership exchanges . The loss definition also : ( A ) defines " actual loss , " " reasonably foreseeable , " and " intended loss " ; ( B ) provides flexibility in determining the loss amount , giving consideration to a number of factors ; ( C ) provides that gain shall be used instead of loss if gain is greater than loss and more accurately reflects the seriousness of the offense ; ( D ) provides rules for crediting amounts the defendant paid back to the victim ; ( E ) provides special rules relating to certain kinds of cases , such as " Ponzi " schemes ; ( F ) presents options on whether interest can be considered in the loss calculation ; and ( G ) sets out upward and downward departure considerations . As an alternative to providing this enhancement in the form of a specific offense characteristic whose applicability would have to be ( at least potentially ) considered in every case sentenced under this guideline ( i.e ., over 6,000 cases in FY 1998 ) , the Commission invites comments on whether the loss commentary could be amended to provide a presumptive loss amount or a loss amount increase if the specified conduct is proven . The bouquet of powers conferred on the Attorney General and the Department of justice was unlike anything official Washington could remember , even recalling bureaucratic czardoms of World War II. Regulatory provisions and criminal penalties were keyed to an elaborate drug-classification system in which , remarkably , the Attorney General makes decisions on whether each substance has an actual or relative potential for abuse , " whether there is " scientific evidence of its pharmacological effect , " the state of current scientific knowledge about it , whether it involves any risk to the public health , and what its " psychic and physiological dependence liability " may be .