Case 9:08-cv-80736-KAM Document 85-1 Entered on FLSD Docket 06/17/2011 Page 1 of 4

Case 9:08-cv-80736-KAM Document 85-1 Entered on FLSD Docket 06/17/2011 Page 1 of 4 EXHIBIT A EFTA00205232 .Case 9:08-cv-80736-KAM Document 85-1 Entered on FLSD Docket 06/17/2011 Page 2 of 4 June 8, 2011 CONGRESSIONAL RECORD-SENATE S360'7 specifically, how do we get businesses cost-benefit rules that govern all other allowed to speak as in morning bust- to do more in terms of hiring, spend agencies. In 1995, we had this debate ness for up to 10 minutes each. less on redtape. less on bureaucracy, and determined at that time we would The PRESIDING OFFICER. Without and reduce the regulatory burden in not extend the legislation to lade- objection. it is so ordered. smart ways? pendent agencies. In the interim, inde- The current administration has said pendent agencies have been providing some of the right things but actually more and more rules, have put out TRIBUTE TO LOUIS E. DIVAN moved in the wrong direction. We have more and more regulations, and are Mr. MCCONNELL. Mr. President, 1 seen a sharp increase in the last couple having a bigger and bigger impact. An rise today to recognize a distinguished of years in what are doomed to be example of an independent agency Kentuckian who has worked tirelessly major economically significant rules. would be the SEC. the Securities and on behalf of our Nation's soldiers, sail- That is defined as regulations that ins- Exchange Commission. or the CFTC, ors and marines for more than 40 years. pose a cost on the economy of $100 mil- which is the Commodity Futures Trad- Louis E. Divan, a lifelong resident of lion or more. ing Commission. These are agencies my hometown of Louisville, has played According to the administration's Of- that, although independent in the exec- a vital role in protecting the men and floe of Management and Budget, the utive branch, are very much involved women of our Armed Forces and our current administration has been regu- in putting out major rules and regular kiting at a pace of 84 major rules per Nona. It is sometimes called the "head- country's defense. Formerly • sailor himself in the V.B. year. By way of comparison, that is less fourth branch" of government be- Navy, he has served for the last 11 about a 50-percent increase over the cause their rules are not reviewed for years as the general manager of regulatory output during the Clinton cost-benefit analysis, even by the OMB. Raytheon Missile Systems operations administration. which had about 58 the Office of Management and Budget, in Louisville. I was saddened to hear of rules per year. and an increase from in its Office of Information and Ftegu- his retirement from that position this the Bush administration as well. So we latory Affairs, so-called OIRA. have seen more regulations and more Wo have looked at some GAO data coming July 5. He will certainly be significant regulations. and put together various studies. and it missed. I was encouraged to hear President appears to us that there are about 200 Mr. Civan—or, to those who know Obama's words when he talked about regulations that were issued between him. Ed—was a 1988 graduate of Sc Xs- the Executive order in January. which 1996 until today that would be deemed vier High School in Louisville and in is entitled "Improving Regulation and to have an impact Of $100 million or 1970 earned his bachelor of science de- Regulatory Review." But now we need more on the economy but wore auto- give in mechanical engineering from to see action. We need to see it from matically excluded from the Unfunded the J.B. Speed School of Engineering the administration, from individual Mandates Relief Act because they were at the University of Louisville. In 1988. agencies to provide real regulatory re- deemed to be from independent seen- he began cies. working at the Naval Ord- lief for job creators to be able to reduce nance Station in Louisville. and he this drag on the economy. So it is basically closing a loophole stayed at that poet until 1996, in var- One commonsense step we can take is and closing this independent agency iota engineering and supervisory post- to strengthen what is called the Un- loophole, which I believe is a sensible dons. funded Mandates Relief Act. It was reform. It has been endorsed by many In 1996 the Naval Ordnance Station passed in 1995. It was bipartisan. I was people, including• interestingly, the transitioned to private ownership, and a cosponsor in the House of Represent- current OIRA Administrator and the Ed's leadership was crucial in making &lives. It is an effort to require Federal President's regulatory czar, Cass that transition a successful one. The regulators to evaluate the cost of rules. Sunstein, who, in a 2002 Law Review ar- facility eventually became part of to look at the benefits and the costs, tide, talked about the fact that this is Raytheon Missile Systems, and Ed was and to look at less costly alternatives an area where UMRA ought to be ex- appointed general manager in 2000. As on rules. tended because, again, there were so general manager. Ed has led Raytheon The two amendments I would like to many independent agencies that were Missile Systems in Louisville to great offer over the next few days as we con- putting out regulations impacting job success, success for both the company eider the legislation before us would creation in this country. and for the local community. They de- No regulation, whatever its source, sign. develop. and produce vital weal). Improve this Unfunded Mandates Re- form Act, and it would reform it in should be imposed on American em- one systems for our armed forces, ena- ways that are entirely consistent with ployors or on State and local govern- bling America to have the moot fermi- the principle President Obama has laid menu without serious consideration of dable military force in the world. out and committed to in his Executive the costs, the benefits. and the avail- Weapons produced at the Louisville far order on regulatory review. ability of a least-burdensome alter- ditty are used by our forces in all parts The first amendment would require native. Both these amendments would of the globe, including in Iraq. agencies specifically to assess poten- move us further toward that sensible Kentucky is lucky to have benefitted tial effects of nets regulations on Joh goal, and I hope the leadership will from Ed's dedication, commitment to creation—so focusing in on jobs—and allow these amendments to be offered. excellence. and leadership for so many to consider market-based and non- I think they fit well with the under- years. I am sure his wife Velma: his governmental alternatives to regular lying legislation. If they arc offered, I WEB Eddie. Tony. and Chris: and his Non. This would broaden the scope of certainly urge my colleagues on both grandchildren Benjamin, Nathan, the Unfunded Mandates Relief Act to sides of the aisle to support them. Isaac. Macy and Natalie are all very I yield the floor. I suggest the ab- proud of what Ed has accomplished. I require cost-benefit analysis of rules sense of a quorum, wish him the very beet in retirement, that impose direct or indirect costs of The PRESIDING OFFICER. The and I am sure my colleagues join me in 3100 million a year or more. So, again. this is for major rules of $100 million or clerk will call. saying that this U.B. Senate thanks more. It would also require agencies to The bill clerk proceeded tO call the Mr. Louis E. "Ed" Divan for his faith- adopt the least costly or least burden- roMll. r. DURBIN. Mr. President, I ask MI service. some option that achieves whatever unanimous consent that the order for policy goals have been set out by Con- the quorum call be rescinded. CRIME VICTIMS' RIGHTS ACT great It seems to me it is a common- The PRESIDING OFFICER. Without sense amendment. I hope we will get objection, it is so ordered. Mr. KYL. Mr. President. I ask unanl- bipartisan support for it. mous consent that the following letter The second amendment would extend be printed in the RECORD. the Unfunded Mandates Relief Act to MORNING BUSINESS There being no objection, the mate- so-called independent agencies which Mr. DURBIN. Mr. President, I ask vial was ordered to be printed in the today are actually exempt from the unanimous consent that Senators be RECORD, as follows: EFTA00205233 Case 9:08-cv1-80736-KAM Document 85-1 Entered on FLSD Docket 06/17/2011 S3608 CONGRESSIONAL RECORD-SENATE Page 3 of 4 June 8, 2011 U.S. SENATE. Washington, DC. June 6. 201l. Hon. ERIC H. HOLDER, Jr.. Attorney General. U.S. Department of Justice. Washington. DC. DEAR ATTORNEY GithiateL animate I am writing about the Justice Department's im• plementation of the Crime VMUms' Rights Act, an act that I co-sponsored in 2004. These questions relate to an Office of Legal Counsel ("OLC") Opinion made public on May 20 2011 and more broadly to concerns I have heard from crime victims' advocates that the Department has been thwarting ef- fective implementation of the Act by failing to extend the Act to the investigative phases of criminal cases and by preventing effective appellate enforcement of victims' rights. I am writing to ask you to answer these ques- tions and explain the Department's actions in these areas. GOVERNMENT rkstritCrION OF VICTIMS' RIGHTS DUiumo INvillsTiGATION Or A CRIMP: When Congress enacted the CUBA. it in- tended to protect crime victim throughout the criminal Justice process—from the inves- tigative phases to the final conclusion of a case. Congress could not have been clearer in its direction that using "best efforts to en- force the CVRA was an obligation of "Ielfficers and employees of the Department of Justice and other departments and agen- cies of the United States engaged In the de- fection. investigation. Or prosecution of crime . . ." Is U.S.C. 13711(c)(1) (emphasis added). Congress also permitted crime victims to as• art their rights either In the court in which formal charges had already been filed "or, If no prosecution is underway. in the district court in the district in which the crime oc- curred." 18 U.S.C. 43771(d)(3) (emphasis added). Despite Congress' clear intention to extend rights to crime victims throughout the proo' ess. the Justice Department is reading the CVRA much more narrowly. In the recent OLC opinion, for example, the Department takes the position that "the CVRA is best read se providing that the rights identified in section 3Til(a) are guaranteed from the time that criminal proceedings are Initiated (by complaint. information. or indictment) and cease to be available If all charges are dismissed either voluntarily or on the merits (or if the Government declines to bring for- mal charges after the filing of a complaint)." The Availability of Crime Victims' Rights Under the Crime Victims' Rights Act of 2004. Memorandum from John E Mee (Dec. 17, 2010. publicly released May 20. 2011) (herein- after "OLC Opinion"). Indeed, in that seine opinion. I am surprised to see the Depart- ment citing a snippet from my floor remarks during the passage of the CVRA for the prop- osition that crime victims can confer with prosecutors only after the formal filing of charges. See id. at 9 (citing 150 Cong. Rec. SOSO. 94288 (Apr. 22. 2004) (statement of Sen. Kyl). I did want to express my surprise that your prosecutors are so clearly quoting my re- marks out of context. Here is the full pas- sage of my remarks, which were part of a colloquy with my co-sponsor on the CVRA. Senator Feinstein. Senator Feinstein: Section (a)(5) pro- vides a right to confer with the attorney for the Government in the case. This right is In• (ended to be expansive. For example. the vic- tim has the right to confer with the Oovern- meat concerning any critical stage or dis- position of the case. The right. however. is not limited to these tramples. I ask the Senator if he concurs this Intent. Senator Kyl: Yes. The intent of this sec• Lion is mat as the Senator says. This right to confer does not give the crime victim any right to direct the prosecution. Prosecutors should consider it part of their profession to be available to consult with crime victims about concerns the victims may have which are pertinent to the case. case proceedings or dispositions. Under this provision. victims are able to confer with the UoirernmenCs attorney about proceedings after charging. 160 CURL Rec. 84280, 54218 (Apr. 22. 2000 (statements of Sens Feinstein & Kid) (em- phases added). Read in context, It is obvious that the main point of my remarks was that a victim's right to confer was -intended to be expansive." Senator Feinstein and I then gave various examples of situations in which victims could confer with prosecutors, with the note that the right to confer was "not limited to these examples." It la therefore troubling to me that in this opinion the Jus- tice Department is quoting only a limited portion of my remarks and wrenching them out of context to suggest that I think that crime victims do not have any right to con- feehrar(ogringto be treated with fairness) until after In giving an example that the victim) would have such rights after charging. I was not suggesting that they had no such right earlier In the process. Elsewhere in my re- marks I made clear that crime victims had rights under the CVRA even before an Indict- ment Is filed. FOr example. In the passage quoted above. I made clear that crime vie• tints had a right to consult about both "the case" and '-case proceedings"—i.e.. both about how the case was being handled before being filed in court and then later how the case was being handled In court "pro- ceedings." As another example. Senator Feinstein and I explained that we had draft- ed the CVRA to extend a right to victims to attend only "public" proceedings, because otherwise the rights would extend to grand jury proceeding.. See. e.g.. 150 Cong. Rec. 94260. St288 (Apr. 22. 2004) (statements of Sens. Feinstein & Kyl). Of course, no such limitation would have been necessary under the CVFL4. If CVRA rights attach (as the De- partment seems to think) only after the Ina of a grand jury indictment. Courts have already rejected the Justice Department's position that. the CVRA ap- plies only after an Indictment is Med. For example, In In re Dean. 627 F.3d 391 (6th Clr. 2008). the Department took the position that crime victims had no right to confer with prosecutors until after the Department had reached and signed a plea agreement with a corporation (BP Products North America) whose illegal actions had resulted in the deaths of fifteen workers in an oil refinery explosion. Of course, this position meant that the victims could have no role in shap- ing any plea deal that the Department reached. In rejecting the Department's posi- tion. the Fifth Circuit held that "the govern- ment should have fashioned a reasonable way to inform the victims of the likelihood of criminal Charges and to ascertain the vic- tims' views on the possible details of a plea bargain." Id. at 394. In spite of this binding decision from the Fifth Circuit, crime victims' advocates have reported to me that the Justice Department is still proceeding in the Fifth Circuit and elsewhere on the assumption that it has no obligations to treat victims fairly or to con- fer with them until after charges are for- mally filed. Given the Fifth Circuit's Dean decision, this position appears to plea the Department in violation of a binding court ruling that extends rights to thousands of crime victims in Louisiana. Mississippi. and Texas. And more generally. the Depart- ment's position simply has no grounding in the clear language of the CVRA. My first question: What Is the Justice De. partment doing to extend to victims their right to fair treatment and their right to confer with prosecutors when the Justice De. partment Is negotiating pre-indictment plea agreements and non-prosecution agreements with defense attorneys. Including negotia- tions within the Fifth Circuit? CRIME VICTIMS' !UMW TO APPELLATE FROTECrION Protection of crime victims rights In ap- pellate courts is an important part of the CVRA. As you know. when Congress passed the CVRA. the federal courts of appeals had reccembred that crime victims could take or- dinary appeals to protect their rights. See. e.g., Doe v. United Slates. 666 F.2d 43. 46 14th Cir. 1981) (rape victim allowed to appeal dis- trict court's adverse 'rape shield statute" ruling): United Stales Ilona. 77 F.3d 66 ford Cir. 1996) (victim allowed to appeal adverse restitution decision). Congress sought to leave these protections in place. while ex- panding them to ensure that crime victims could obtain quick vindication of their rights In appellate courts by providing—in 3771(d)(3)—that "fig the district court de- nies the relief sought, the (victim) may peti- tion the court of appeals for a writ of man• damus." 18 U.S.C. $3771(d)(3i. Ordinarily. whether mandamus relief should issue is dis- cretionary. The plain language of the CVRA. however, specifically and clearly overruled such discretionary mandamus standards by directing that - (t)he court of appeals shalt take ny and deride such application forthwith . . . ." Is U.S.C. 43771(c1X3) (emphasis added). As I explained when the Senate Considered the CVRA: [Wihile mandamus is generally discre- tionary. this provision 116 U.B.C. 13711(d)(3)) means that courts matt review these cases. Appellate review of denials of victims' rights is lust as Important as the initial assertion Of a victim's right. This provision ensures re- view and encourages courts to broadly defend the victims' rights. ISO CONG. Rico. 84210 (Apr. 22. 2004) (state- ment of Sen. Kyl) (emphases added). Simi- larly. the CVRA's cosponsor with mo. Sen- ator Feinstein. stated that the Act would create '-a new use of a very old procedure. the writ of mandamus. This provision will establish a procedure where a crime victim can, in essence. Immediately appeal a denial of their rights by a trial court to the court of appeals." 160 °ONO. Rae. 54252 (statement of Sen. Feinstein) (emphases added): see also id. (statement of Sen. Kyl) (crime victims must "be able to have the appellate courts take the appeal and order relief). In short. the legislative history shows that 13771(d)(3) was intended to allow crime vic- tims to take accelerated appeals from dis- trict court decisions denying their rights and have their appeals reviewed under ordinary standards of appellate review. In spite of that unequivocal legislative his- tory, the Justice Department has in past cases asserted a contrary Positron- In in re Antrobvs, 619 F.3d 1123 (10th Cir. 2008). Ken and Sue Antrobus sought to obtain appellate review of a ruling by a trial court that they could not deliver a victim impact statement at the sentencing of the man who sold the murder weapon used to kill their daughter. The Tenth Circuit ruled against them on the basis that the Antrobuses were not entitled to regular appellate review, but only discre- tionary mandamus review. See id. at 1124-25. The Tenth Circuit did nut consider the legis- lative history in reaching this conclusion. leading the Antrobuses to Me petitions for rehearing and rehearing en banc—petitions that recounted this legislative history. In re- sponse. the Justice Department asked the Tenth Circuit to deny the victims' petitions. Remarkably. the Justice Department told the Tenth Circuit that it could Ignore the EFTA00205234 Case 9:08-cv-80736-KAM Document 85-1 Entered on FLSD Docket 06/17/2011 Page 4 of 4 June 8, 2011 CONGRESSIONAL RECORD-SENATE S3609 legislative history because the CVRA "is un- ambiguous." Response of the United States, In re Antrobus. No. 08-4032, at 12 n.7 (10th Cir. Feb. 12, 2IX(I). At the time that the Justice Department filed this brief. no Court of Appeals agreed with the Tenth Circuit. At the time, three other Circuits had all issued unanimous rul- ings that crime victims were entitled to reg- ular appellate review. See In re W.R. Huff Asset Mow. Co.. 409 Fad 565, 512 (2d Cir. 2005): Kenna v. US. Dui. Ct. for the Cent. Dist. of Ca.. 436 5' al loll, 1017 (9th Cir. 2036): In re Walsh. 229 Fed.Appx. 58. at 60 (3rd Cir. 2007). My next question for you is. given that the Justice Department has an obligation to use its "beet efforts." 18 U.S.C. 3771(c)(1). to af- ford crime victims their rights, how could the Department argue in Antrobus (and later casein that the CVRA - unambiguously' do- med crime victims regular appellate protec- tions of their rights when three circuits had reached the opposite conclusion? 00vERNMENT15 RIGHT TO ASSERT ERROR DENIAL Or viCTI34.5* RIGHTS To further bolster protection of crime vic- tims' rights. Congress also Included an addi- tional provision in the CVRA-13771(dx4)— allowing the Justice Department to obtain review of crime victims' rights issues in ap- peals sled by defendant.: "In any appeal in a criminal case, the Government may assert as error the district court's denial of any crime victim's right in the proceeding to which the appeal relates." 15 U.S.C. .3771(d)(4). The intent underlying this provi- sion was to supplement the crime victims' appeal provision found in $2771(d)($) by per- mitting the Department to also help develop a body of Glee law expanding crime victims' rights in the many defense appeals that are sled. It was not intended to In any way nar- row crime victims' rights CO Seek relief under I 3771(dX3). Nor was it intended to bar crime victims from asserting other remedies. For instance. It was not intended to block crime victims from taking an ordinary ap- peal from an adverse decision affecting their rights (such as a decision denying restitu- tion) under 28 U.S.C. $1291. Crime victims had been allowed to take such appeals In var- ious circuits even before the passage of the CVRA. See. e.g.. United States v. Kona. 77 F 3d 05 (3rd Cir. 1996) (crime victim allowed to appeal restitution ruling); United States v. Pant. 360 F.3d 519 (6th Cir. 2000 (crime vic- tims allowed to appeal restitution lien issue): Doe r. United States. 666 F.2d C. 46 (4th Cir. 1981) (crime victim allowed to appeal rape shield ruling). As I explained at the time the CVRA was under consideration. this provision supple- mented those pre-existing decisions by "elledefingl the Government to assert a vic- tim's right on appeal even when it is the de- fendant who seeks appeal of his or her con- viction. This ensures that victims' rights are protected throughout the criminal Justice process and that they do not fall by the way- side during what can often be an extended appeal that the victim is not a party to." 150 Ccero. Rec. 54270 (Apr. 12. 2)04) (statement of Sen. Kyl). I have heard from crime victims' advocates th►t the Department has not been actively enforcing this provision. Indeed. these advo- cates tell me that they are unaware of even a single case where the Department has used this supplemental remedy. My final goes- Lien: IS It true that the Department has never need this provision in even a single case in the more than six year* since the CVRA was enacted? Sincerely, JON Rn., US. Senator. HONORING OUR ARMED FORCES SERGEANT VORASACK T. XAYSANA Mr. BENNET. Mr. President, it is with a heavy heart that I rise today to honor the life and heroic service of SGT Vorasack T. Xaysana. Sergeant Xaysana, assigned to the Headquarters and Headquarters Company, 2nd Bat- talion. based in Fort Hood, TX. died on April 10, 2011. Sergeant Xaysana was serving in support of Operation New Dawn in Kirkuk, Iraq. He was 30 years old. A native of Westminster, CO. Ser- geant Xaysana enlisted in the Army in 2006. During over 6 years of service. ho distinguished himself through his cour- age and dedication to duty. Sergeant Xaysana's exemplary service quickly won the recognition of his commanding officers. He earned, among other deco- rations. the Iraq Campaign Medal, the Global War on Terrorism Service Medal, and the Army Good Conduct Medal. Sergeant Xaysana worked on the front lines of battle, serving in the most dangerous areas of Iraq. Mark Twain once said, "The fear of death fol- lows from the fear of life. A man who lives fully is prepared to die at any time." Sergeant Xaysana's service was in keeping with this sentiment—by selflessly putting country first, he lived life to the fullest. He lived with a sense of the highest honorable purpose. At substantial personal risk, he braved the chaos of combat zones throughout Iraq. Though his fate on the battlefield was uncertain, he pushed forward, protecting America's citizens, her safety. and the freedoms we hold dear. For his service and the lives ho touched, Sergeant 'Weans. will forever be remembered as one of our country's bravest. To Sergeant Xaysana's Parente. Thong Chanh and Manithip. and to his entire family. I cannot imagine the sorrow you must be feeling. I hope that, in time, the pain of your loss will be eased by your pride in Vorasaok's service and by your knowledge that his country will never forget him. Wo are humbled by his service and his sac- rifice. GRAZING IMPROVEMENT ACT Mr. BARRASSO. Mr. President. I rise today to submit for the RECORD an ar- ticle written by Karen Budd-Falen and published May 2a. 2011. in the Wyoming Livestock Journal. The article's title le "Leveling the Playing Field: Support for the Grazing Improvement Act of 2011." The title of the article is instructive. Anyone living and working in rural communities knows the playing field Is not level. The National Environmental Policy Act has become the preferred tool to delay and litigate grazing per- mit renewals for American ranchers. Livestock grazing on public lands has a strong tradition in Wyoming and all Western States. Ranchers are proud stewards of the land. yet the permit- ting process to renew their permits is severely backlogged due to litigation aimed at eliminating livestock from public land. During times of high unemployment and increasing food prices• we need to be encouraging Jobs in rural economies. We need to be fostering an environ- ment to raise more high quality, safe, American beef and lamb: not litigating less. That is why I introduced the Grazing Improvement Act of 2011. This legisla- tion will provide the certainty and sta- bility public grazing permit holders desperately need in order to continue supporting rural jobs, providing healthy food. and maintaining open spaces for recreation and wildlife. It is time to help level the playing field for hard working ranching fami- lies across the West. Their livelihood should not be held hostage by litiga- tion and anti-grazing special interest groups. I thank my colleagues. Son. store Ear, CRAP°. HATCH, HELLER. Risen, and TRUNK. in supporting ranch- ing families and this legislation. Mr. President, I ask unanimous con- sent to have printed in the Recces the article to which I referred. There being no objection, the mate- rial was ordered to be printed in the RECORD, as follows: [From the Wyoming Livestock Roundup. May 29, 20111 Litvaisci Tlm PIATINO YIELD: SUPPORT FOR THE GRAZING DIPROVEGIIMT ACT OF 2011 (By Karen Budd-Falen) If yobs and the economy are the number one concern for America. why are rural own. InUnItles and ranchers under attack by rad- ical environmental groups and overzealous federal regulators? America depends upon the hundreds of products that livestock provide, yet radical groups and oppressive regulations make it almost impossible for ranchers to stay in business. Opposition to these Jobs comes in the form of litigation by radical environ- mental groups to eliminate grazing on public lands, radical environmental group pressure to force "voluntary" grazing permit buy- outs from •willing sellers," and holding Der- mal..a hostage to the court deference given to regulatory "experts." The playing field is Dot level and the rancher is on the losing side. The Greaten Improvement Act of 2011 will level the gaging field. I urge your sup- port. The Grazing Improvement Act of 2011 does the following: 1. Term of Grating Leases and Permits. Both BLM and Forest Service term grazing permits are for a 10-year term. This bill ex- tends that term to 20 years. This extension does Dot affect either the BLit& or Forest Service's ability to make Interim manage. merit decisions based upon resource or other needs, nor does it impact the preference right of renewal for term grating permits or leases. 2. Renewal, Transfer and Reissuance of Grazing leases and Permits. This section codifies the various "appropriation riders" for the BLM and Forest Service requiring that permits being reissued. renewed or transferred continue to follow the existing terms and conditions until the paperwork is complete. Thus, the rancher is not held hos- tage to the ability of the agency to get its EFTA00205235