EFTA01098354.pdf

Case 9:08-cv-80736-KAM Document 85-1 Entered on FLSD Docket 06/17/2011 Page 1 of 4 EXHIBIT A EFTA01098354 .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 country's defense. kiting at a pace of 84 major rules per Nona. It is sometimes called the "head- 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. Mr. Civan—or, to those who know I was encouraged to hear President appears to us that there are about 200 him. Ed—was a 1988 graduate of Sc Xs- Obama's words when he talked about regulations that were issued between 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 working at the Naval Ord- lief for job creators to be able to reduce cies. 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- Improve this Unfunded Mandates Re- No regulation, whatever its source, sign. develop. and produce vital weal). 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 require cost-benefit analysis of rules I yield the floor. I suggest the ab- proud of what Ed has accomplished. I that impose direct or indirect costs of sense of a quorum, wish him the very beet in retirement, 3100 million a year or more. So, again. clerk The PRESIDING OFFICER. The and I am sure my colleagues join me in this is for major rules of $100 million or will call. saying that this U.B. Senate thanks The bill clerk proceeded tO call the Mr. Louis E. "Ed" Divan for his faith- more. It would also require agencies to roMll. adopt the least costly or least burden- 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. great It seems to me it is a common- The PRESIDING OFFICER. Without CRIME VICTIMS' RIGHTS ACT 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: EFTA01098355 Case 9:08-c\i-80736-KAM Document 85-1 Entered on FLSD Docket 06/17/2011 Page 3 of 4 S3608 CONGRESSIONAL RECORD -SENATE June 8, 2011 U.S. SENATE. right to direct the prosecution. Prosecutors right to fair treatment and their right to Washington, DC, June 6. 201l. should consider it part of their profession te confer with prosecutors when the Justice De. Hon. ERIC H. HOLDER. Jr.. be available to consult with crime victims partment Is negotiating pre-indictment plea Attorney Genera?. U.S. Department of Justice. about concerns the victims may have which agreements and non-prosecution agreements Washington. DC. are pertinent to the case. case proceedings or with defense attorneys. Including negotia- DEAR ATTORNEY GithiatAL HOLDER: I am dispOsitions. Under this provision. victims are tions within the Fifth Circuit? writing about the Justice Department's Im- able to confer with the UovernmenCs attorney Mules vitTims' RIGHT TO APPELLATE plementation of the Crime VMUM3' Rights about proceedings after charging. pEOTIterION Ace. -an act that I co-sponsored in 2004. 160 Cong. Rec. 94280. Sae (Apr. 22. 2004) Protection of crime victims' rights In ap- These questions relate to an Office of Legal (statements of Sena. Feinstein & Kyl) (em- Counsel (OLC") Opinion made public on phases added). Read in context, it is obvious pellate courts is an important part of the May 20 2011 and more broadly to concerns I that the main point of my remarks was that CVRA. As you know. when Congress passed the CVRA. the federal courts of appeals had have heard from crime victims' advocates a victim's right to confer was -intended to recoirnized that crime victims could take or- that the Department has been thwarting ef- be expansive." Senator Feinstein and I then dinary appeals to protect their rights. See. fective implementation of the Act by falling gave various examples of situations in which e.g., Doe v. United States. 666 F.2d 43. 46 (4th to extend the Act to the investigative phases victims could confer with prosecutors. with Cir. 1961) (rape victim allowed to appeal dis- of criminal cases and by preventing effective the note that the right to Confer was "not appellate enforcement of victims' rights. I limited to these examples." It is therefore ruling): trict court's adverse "rape shield statute" am writing to ask you to answer these ques- troubling to me that In this opinion the Jus- United States v. Kane,. 77 F.3d 66 (3rd Cir. 1996) (victim allowed to appeal adverse tions and explain the Department's actions tice Department is quoting only a limited restitution decision. Congress sought to in these arms. portion of my remarks and wrenching them leave these protections in place. while ex- GOVERNMENT Farm/ICI-ION OF VICTIMS' MGR'S out of context to suggest that I think that panding them to ensure that crime victims :Mingo thvESTIGATION Or A MIME crime victims do not have any right to con- could obtain quick vindication of their When Congress enacted the CVRA, it in- feehrar logring to be treated with fairness) until after rights in appellate courts by providing —in tended to protect crime victims throughout I3771(d)<3)-that "(If the district court de- the criminal Justice process—from the inves- In giving an example that the victims nies the relief sought, the (victim) may peti- tigative phases to tho final conclusion of a would have such rights after charging. I was tion the court of appeals fora writ of man• case. Congress could not have been clearer in not suggesting that they had no such right damus." 18 U.S.C. 83771(d)(3). Ordinarily. its direction that using "best efforts to en- earlier in the process. Elsewhere in my re- whether mandamus relief should issue is dis- force the CVRA was an obligation of marks I made clear that crime victims had cretionary. The plain language of the CVRA. "(Olfilcers and employees of the Department rights under the CVRA even before an indict- however, specifically and clearly overruled of Justice and other departments and agen- ment is filed. FOr example. In the passage such discretionary mandamus standards by cies of the United States engaged m the de- quoted above. I made clear that crime vic- directing that -'(t)he court of appeals shalt tection. investigation. Or prosecution of crime tims had a right to consult about both "the take up and deride such application forthwith . . ." 18 U.S.C. 13771(c)(1) (emphasis added). can" and "case proceedings"—i.e.. both . . . ." 18 U.S.C. 83771(dX3) (emphasis added). Congress also permitted crime victims to as- about how the case was being handled before As I explained when the Senate Considered sert their rights either in the court in which being filed in court and then later how the the CVRA: formal charges had already been filed "or, If case was being handled In court "pro- [Wihile mandamus Is generally discre- no prosecution is underway. in the district ceedings." As another example. Senator tionary. this provision 118 U.B.C. I3T/1(di(3)] court in the district in which the crime oc- Feinstein and I explained that we had draft- means that courts ritual review these cases. curred." 18 U.S.C. 63771M/(3) (emphasis ed the CVRA to extend a right to victims to Appellate review attend only "public" proceedings. because of denials of victims' rights added). is Just as important as the initial assertion Despite Congress' clear intention to extend otherwise the rights would extend to grand rights to crime victims throughout tho prop. Jury proceedings. See. e.g.. 150 Cong. Rec. Of a victim's right. This provision ensures re- view and encourages courts to broadly defend ess. the Justice Department Ls reading the 94350. 54268 (Apr. 22. 2004) (statements of the victims' rights. CVRA much more narrowly. In the recent Sens. Feinstein & Kyl). Of course. no such OLC opinion, for example, the Department limitation would have been necessary under 150 CONG. Exc. 84210 (Apr. 22. 2004) (state- takes the position that "the CVRA is beat the CVRA if CVRA rights attach (as the De- ment of Sen. Kyl) (emphases added). Simi- read as providing that the rights identified partment seems to think) only after the fil- larly, the CVRA's cosponsor with mo. Sen- in section 3771(a) are guaranteed from the ing of a grand jury Indictment. ator Feinstein. stated that the Act would time that criminal proceedings are Initiated Courts have already rejected the Justice create ' -a new use of a very old procedure. Department's position that. the CVRA ap- the writ of mandamus. This provision will (by complaint, information. or indictment) plies only after an Indictment is filed. For establish a procedure where a crime victim and cease to be available If all charges are dismissed either voluntarily or on the merits example. In In re Dean. 627 F.3d 391 (5th Cir. can, in essence. Immediately appeal a denial 2008). the Department took the position that Of their rights by a trial court to the court (or if the Government declines to bring for- mal charges after the filing of • complaint)." crime victims had no right to confer with of appeals." 160 CONG. RIM. 54282 (statement The Availability of Crime Victims' Rights prosecutors until after the Department had of Sen. Feinstein) (emphases added/ see also Under the Crime Victims' Right. Act of 2004. reached and slatted a plea agreement with a id. (statement of Sen. Kyl) (crime victims corporation (81" Products North America) must "be able to have the appellate Memorandum from John E. Bits (Dec. 17, 2010. publicly released May 20. 2011) (herein- whose illegal actions had resulted in the courts take the appeal and order relief). In after "OLC Opinion"). Indeed, in that mine deaths of fifteen workers in an oil refinery short. the legislative history shows that opinion. I am surprised to see the Depart- explosion. Of course, this position meant IMI(d)(3) was intended to allow crime vic- that the victims could have no role in shap- tims to take accelerated appeals from dis- ment citing a snippet from my floor remarks during the passage of the CVRA for the prop- ing any plea deal that the Department trict court decisions denying their rights and osition that crime victims can confer with reached. In rejecting the Department's posi- have their appeals reviewed under ordinary prosecutors only after the formal filing of tion. the Fifth Circuit held that "the govern- standards of appellate review. ment should have fashioned a reasonable In spite of that unequivocal legislative his- charges. See id. at 9 (citing 150 Cong. Rec. 84340. 94268 (Apr. 22. M041 (statement of Sen. way to inform the victims of the likelihood tory, the Justice Department has in past Kyl). of criminal Charges and to ascertain the vic- Cases asserted a Contrary Position. In in re I did want to express my surprise that your tims" views on the possible details of a plea Antrobvs, 619 F.9d 1123 (10th Cir. MI, Ken prosecutors are so clearly quoting my re- bargain." Id. at 394. and Sue Antrobus sought to obtain appellate marks out of context. Here Is the full pas- In spite of this binding decision from the review of a ruling by a trial court that they sage of my remarks. which were part of a Fifth Circuit, crime victims' advocates have could not deliver a victim impact statement reported to me that the Justice Department at the sentencing of the man who colloquy with my co-sponsor on the CVRA. is sold the Senator Feinstein. still proceeding in the Fifth Circuit and murder weapon used to kill their daughter. elsewhere on the assumption that It has no The Tenth Circuit ruled against them Senator Feinstein: Section . . (aX5) pro- obligations to on the treat victims fairly or to con• basis that the Antrobuses were not entitled vide. a right to confer with the attorney for fer with them the government in the case. This right IS In• mally until after charges are for- to regular appellate review, but only discre- filed. Given the Fifth Circuit's Dean tionary mandamus review. See id. at 1124-25. (ended to be expansive. For example. the vic- decision, this position tim has the right to confer with the Oovern- Department appears to plea the The Tenth Circuit did nut consider the legis- in violation of a binding court lative history in reaching this conclusion. meat concerning any critical stage or dis- ruling that extends rights to thousands of leading the Antrobuses to file petitions for position of the case. The right, however, Is not crime victims in Louisiana. Mississippi. and rehearing and rehearing en bent —petitions limited to these examples. I ask the Senator if Texas. And he concurs more generally. the Depart- that recounted this legislative history. In re- this Intent. ment's position simply has no grounding in sponse. the Justice Department Senator Kyl: Yes. The intent of this sec- the asked the tion is mat as the Senator says. This right to clear language of the CVRA. Tenth Circuit to deny the victims' petitions. My first question: What is the Justice De- Remarkably. confer does not give the crime victim any partment doing the Justice Department told to extend to victims their the Tenth Circuit that it could Ignore the EFTA01098356 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- HONORING OUR ARMED FORCES stewards of the land. yet the permit- ambiguous." Response of the United States, ting process to renew their permits is In re Antrobus. No. 08-4032, at 12 n.7 (10th Cir. SERGEANT VORASACK T. XAYSANA Feb. 12, 2IX(I). Mr. BENNET. Mr. President, it is severely backlogged due to litigation aimed at eliminating livestock from At the time that the Justice Department with a heavy heart that I rise today to filed this brief. no Court of Appeals agreed honor the life and heroic service of public land. with the Tenth Circuit. At the time, three SGT Vorasack T. Xaysana. Sergeant During times of high unemployment other Circuits had all issued unanimous rul- Xaysana, assigned to the Headquarter and increasing food prices• we need to s ings that crime victims were entitled to reg- and Headquarter encouraging Jobs in rural economies. s Company, 2nd Bat- be ular appellate review. See In re W.R. Huff We need to be fostering an environ- Asset Mow. Co.. 409 Fad 565, 512 (2d Cir. 2005): talion. based in Fort Hood, TX. died on ment to raise more high quality, safe, Kenna v. US. Dui. Ct. for the Cent. Dist. of Ca.. April 10, 2011. Sergeant Xaysana was American beef and lamb: not litigating 436 5' al loll, 1017 (9th Cir. 2036): In re Walsh. serving in support of Operation New 229 Fed.Appx. 58. at 60 (3rd Cir. 2007). Dawn in Kirkuk, Iraq. He was 30 years less. My next question for you is. given that the old. That is why I introduced the Grazing Justice Department has an obligation to use A native of Westminster, CO. Ser- Improvement Act of 2011. This legisla- its "beet efforts." 18 U.S.C. 3771(c)(1). to af- geant Xaysana enlisted in the Army in tion will provide the certainty and sta- ford crime victims their rights, how could 2006. During over years bility public grazing permit holders the Department argue in Antrobus (and later 6 of service. ho distinguished desperately need in order to continue casein that the CVRA - unambiguously' do- himself through his cour- supporting rural jobs, providing med crime victims regular appellate protec- age and dedication to duty. Sergeant healthy Xaysana's exemplary service quickly food. and maintaining open tions of their rights when three circuits had reached the opposite conclusion? won the recognition of his commanding spaces for recreation and wildlife. officers. He earned, among other deco- It is time to help level the playing 00vERNMENT15 RIGHT TO ASSERT ERROR DENIAL Or viCTI34.5* RIGHTS rations. the Iraq Campaign Medal, the field for hard working ranching fami- lies across the West. Their livelihood To further bolster protection of crime vic- Global War on Terrorism Service should not be held hostage Medal, and the Army Good Conduct by litiga- tims' rights. Congress also Included an addi- tion and anti -grazing special interest tional provision in the CVRA-13771(dx4)— Medal. allowing the Justice Department to obtain Sergeant Xaysana worked on the groups. I thank my colleagues. Son. review of crime victims' rights issues in ap- front lines of battle, serving in the store Ear, CRAP°. HATCH, HELLER. peals sled by defendant.: "In any appeal in most dangerous areas of Iraq. Mark Risen, and TRUNK. in supporting ranch- a criminal case, the Government may assert Twain once said, "The fear of death fol- ing families and this legislation. as error the district court's denial of any Mr. President, I ask unanimous con- crime victim's right in the proceeding to lows from the fear of life. A man who lives fully is prepared to die sent to have printed in the Recces the which the appeal relates." 15 U.S.C. at any article to which I referred. .3771(d)(4). The intent underlying this provi- time." Sergeant Xaysana's service was sion was to supplement the crime victims' in keeping with this sentiment—by There being no objection, the mate- appeal provision found in $2771(d)($) by per- selflessly putting country first, he rial was ordered to be printed in the mitting the Department to also help develop lived life to the fullest. He lived with a RECORD, as follows: a body of Glee law expanding crime victims' sense of the highest honorable purpose. [From the Wyoming Livestock Roundup. rights in the many defense appeals that are May 29, 20111 At substantial personal risk, he sled. It was not intended to In any way nar- Litvaisci Tlm PIATINO YIELD: SUPPORT FOR braved the chaos of combat zones row crime victims' rights CO Seek relief THE GRAZING DIPROVEGIIMT ACT OF 2011 under I 3771(dX3). Nor was it intended to bar throughout Iraq. Though his fate on crime victims from asserting other remedies. the battlefield was uncertain, he (By Karen Budd-Falen) For instance. It was not intended to block pushed forward, protecting America's If yobs and the economy are the number crime victims from taking an ordinary ap- citizens, her safety. and the freedoms one concern for America. why are rural own. peal from an adverse decision affecting their we hold dear. For his service and the InUnItles and ranchers under attack by rad- rights (such as a decision denying restitu- lives ho touched, Sergeant ical environmental groups and overzealous 'Weans. federal regulators? tion) under 28 U.S.C. $1291. Crime victims will forever be remembered as one of America depends upon the hundreds of had been allowed to take such appeals In var- ious circuits even before the passage of the our country's bravest. products that livestock provide, yet radical CVRA. See. e.g.. United States v. Kona. 77 To Sergeant Xaysana's Parente. groups and oppressive regulations make it F 3d 05 (3rd Cir. 1996) (crime victim allowed Thong Chanh and Manithip. and to his almost impossible for ranchers to stay in to appeal restitution ruling); United States v. entire family. I cannot imagine the business. Opposition to these Jobs comes in Pant. 360 F.3d 519 (6th Cir. 2000 (crime vic- sorrow you must be feeling. I hope the form of litigation by radical environ- tims allowed to appeal restitution lien that, in time, the pain of your mental loss will lands, groups to eliminate grazing on public issue): Doe r. United States. 666 F.2d C. 46 (4th be eased by your pride radical environmental group pressure Cir. 1981) (crime victim allowed to appeal service in Vorasaok's to force "voluntary" and by your knowledge that his grazing permit buy- rape shield ruling). outs from •willing sellers," and holding Der- country will never forget him. Wo are mal..a hostage to the As I explained at the time the CVRA was court deference given under consideration. this provision supple- humbled by his service and his sac- to regulatory "experts." The playing field is mented those pre-existing decisions by rifice. Dot level and the rancher is on the losing "elledefingl the Government to assert a vic- side. The Greaten Improvement Act of 2011 tim's right on appeal even when it is the de- will level the gaging field. I urge your sup- fendant who seeks appeal of his or her con- GRAZING IMPROVEMENT ACT port. viction. This ensures that victims' rights are The Grazing Improvement Act of 2011 does Mr. BARRASSO. Mr. President. I rise the protected throughout the criminal Justice today following: to submit for the RECORD an ar- 1. Term of Grating Leases and Permits. process and that they do not fall by the way- side during what can often be an extended ticle written by Karen Budd-Falen and Both BLM and Forest Service term grazing appeal that the victim is not a party to." 150 published May 2a. 2011. in the Wyoming permits are for a 10-year term. This bill ex- Ccero. Rec. 54270 (Apr. 12. 2)04) (statement of Livestock Journal. The article's title le tends that term to 20 years. This extension Sen. Kyl). "Leveling the Playing Field: Support does Dot affect either the BLit& or Forest I have heard from crime victims' advocates for the Grazing Improvement Act of Service's ability to make Interim manage. th►t the Department has not been actively 2011." merit decisions based upon resource or other enforcing this provision. Indeed. these advo- needs, nor does it impact the preference The title of the article is instructive. right cates tell me that they are unaware of even Anyone living of renewal for term grating permits or a single case where the Department has used and working in rural leases. this supplemental remedy. My final goes- communities knows the playing field Is 2. Renewal, Transfer and Reissuance of Lien: IS It true that the Department has not level. The National Environmental Grazing leases and Permits. This section Policy codifies never need this provision in even a single Act has become the preferred the various "appropriation riders" case in the more than six year* since the tool to delay and litigate grazing per- for the BLM and Forest Service requiring CVRA was enacted? mit renewals for American ranchers. that permits being reissued. renewed or Sincerely, Livestock grazing on public lands has transferred continue to follow the existing terms and conditions until the paperwork is JON Rn., a strong tradition in Wyoming and all US. Senator. complete. Thus, the rancher is not held hos- Western States. Ranchers are proud tage to the ability of the agency to get its EFTA01098357