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Case 9:08-cv-80736-KAM Document 85-1 Entered on FLSD Docket 06/17/2011 Page 2 of 4 t7 June 8, 2011 specifically, how do we get businesses to do more in terms of hiring, spend Iess on redtape, less on bureaucracy, and reduce the regulatory burden in smart ways? The current administration has said some of the right things but actually moved in the wrong direction. We have seen a sharp increase in the last couple of years in what are deemed to be major economically significant rules. That is defined as regulations that impose a cost on the economy of $100 million or more. According to the administration’s Office of Management and Budget, the current administration has been regu- Iating at a pace of 84 major rules per year. By way of comparison, that is about a 50-percent increase over the regulatory output during the Clinton administration, which had about 56 rules per year, and an increase from the Bush administration as well. So we have seen more regulations and more significant regulations. I was encouraged to hear President Obama’s words when he talked about the Executive order in January, which is entitled “Improving Regulation and Regulatory Review.” But now we need to see action. We need to see it from the administration, from individual agencies to provide real regulatory relief for job creators to be able to reduce this drag on the economy. One commonsense step we can take is to strengthen what is called the Unfunded Mandates Relief Act. It was passed in 1995. It was bipartisan. I was a cosponsor in the House of Representatives. It is an effort to require Federal regulators to evaluate the cost of rules, to look at the benefits and the costs, and to look at less costly alternatives on rules. The two amendments I would like to offer over the next few days as we consider the legislation before us would improve this Unfunded Mandates Reform Act, and it would reform it in ways that are entirely consistent with the principle President Obama has laid out and committed to in his Executive order on regulatory review. The first amendment would require agencies specifically to assess potential effects of new regulations on job creation-so focusing in on jobs-and to consider market-based and nongovernmental alternatives to regulation. This would broaden the scope of the Unfunded Mandates Relief Act to require cost-benefit analysis of rules that impose direct or indirect costs of $100 miilion a year or more. So, again, this is for major rules of $100 million or more. It would also require agencies to adopt the least costly or least burdensome option that achieves whatever policy goals have been set out by Congress. It seems to me it is a commonsense amendment. I hope we will get bipartisan support for it. The second amendment would extend the Unfunded Mandates Relief Act to so-called independent agencies which today are actually exempt from the CONGRESSIONAL RECORD¶
- SENATE cost-benefit rules that govern aII other agencies. In 1995, we had this debate and determined at that time we would not extend the legislation to independent agencies. In the interim, independent agencies have been providing more and more rules, have put out more and more regulations, and are having a bigger and bigger impact. An example of an independent agency would be the SEC, the Securities and Exchange Commission, or the CFTC, which is the Commodity Futures Trading Commission. These are agencies that, although independent in the executive branch, are very much involved in putting out major rules and regulations. It is sometimes called the “headless fourth branch” of government because their rules are not reviewed for cost-benefit analysis, even by the OMB, the Office of Management and Budget, in its Office of Information and Regulatory Affairs, so-called OIRA. We have looked at some GAO data and put together various studies, and it appears to us that there are about 200 regulations that were issued between 1996 until today that would be deemed to have an impact of $100 million or more on the economy but were automatically excluded from the Unfunded Mandates Relief Act because they were deemed to be from independent agencies. So it is basically closing a loophole and closing this independent agency loophole, which I believe is a sensible reform. It has been endorsed by many people, including, interestingly, the cument OIRA Administrator and the President’s regulatory czat, Cass Sunstein, who, in a2002 Law Review article, talked about the fact that this is an area where UMRA ought to be extended because, again, there were so many independent agencies that were putting out regulations impacting job creation in this country. No regulation, whatever its source, should be imposed on American employers or on State and local governments without serious consideration of the costs, the benefits, and the availability of a least-burdensome alternative. Both these amendments would move us further toward that sensible goal, and I hope the leadership will allow these amendments to be offered. I think they fit well with the underlying legislation. If they are offered, I certainly urge my colleagues on both sides of the aisle to support them. I yield the floor. I suggest the absence of a quorum. The PRESIDING OFFICER. The clerk will call. The bill clerk proceeded to caII the roII. Mr. DURBIN. Mr. President. I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICER. Without objection, it is so ordered. MORNING BUSINESS Mr. DURBIN. Mr. president. I ask unanimous consent that Senators be s3607 allowed to speak as i.n morning business for up to 10 minutes each. The PRESIDING OFFICER. Without objection, it is so ordered. TRIBUTE TO LOUIS E. GIVAN Mr. MoCONNELL. Mr. President, I rise today to recognize a distinguished Kentuckian who has worked tirelessly on behalf of our Nation’s soldiers, sailors and marines for more than 40 years. Louis E. Givan, a lifelong resident of my hometown of Louisville, has played a vital role in protecting the men and women of our Armed Forces and our country’s defense. Formerly a sailor himself in the U.S. Navy, he has served for the last 11 years as the general manager of Raytheon Missile Systems operations in Louisville. I was saddened to hear of his retirement from that position this coming July 5. He will certainly be missed. Mr. Givan-or, to those who know him, Ed-was a 1966 graduate of St. Xavier High Schooi in Louisville and in 1970 earned his bachelor of science degree in mechanical engineering from the J.B. Speed School of Engineering at the University of Louisville. In 1968, he began working at the Naval Ordnance Station in Louisville, and he stayed at that post until 1996, in various engineering and supervisory positions. In 1996 the Naval Ordnance Station transitioned to private ownership, and Ed’s leadership was crucial in making that transition a successful one. The facility eventually became part of Raytheon Missile Systems, and Ed was appointed general manager in 2000. As general manager, Ed has led Raytheon Missile Systems in Louisville to great success, success for both the company and for the local community. They design, develop, and produce vital weapons systems for our armed forces, enabling America to have the most formidable military force in the world. Weapons produced at the Louisville facility are used by our forces in all parts of the globe, including in Iraq. Kentucky is lucky to have benefitted from Ed’s dedication, commitment to excellence, and leadership for so many years. I am sure his wife Velma; his sons Eddie, Tony, and Chris; and his grandchildren Benjamin, Nathan, Isaac, Macy and Natalie are all very proud of what Ed has accomplished. I wish him the very best in retirement, and I am sure my colleagues join me in saying that this U.S. Senate thanks Mr. Louis E. “Ed” Givan for his faithful service. CRIME VICTIMS’ RIGHTS ACT Mr. KYL. Mr. President, I ask unanimous consent that the following letter be printed in the Rncono. There being no objection, the material was ordered to be printed in the Rncono. as follows: Case 9:08-cv-80736-KAM Document 85-1 Entered on FLSD Docket 06/17/2011 Page 3 of 4 s3608 U.S. Ssllero, Washington, DC, June 6, 2011. Hon. ERIC H. HOLDER. Jr.. AttmneA General\ U.S. Department of Justice, Washington, DC. DEAR ATTORNEY GENERAL HoLDER: I am writing about the Justice Department’s implementation of the Crime Victims’ Rishts Acb-an act that I co-sponsored in 2004. These questions relate to an Office of Legal Counsel (“OLC’1) 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 effective 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 questions and explain the Department’s actions in these areas. GOVERNMENT PROTECTION OF VICTIMS’ RIGIITS DURING INVESTIGATION OF A CRIME When Congress enacted the CVRA, it intended to protect crime victims throughout the criminal justice process-from the investigative phases to the final conclusion of a case. Congress could not have been clearer in its direction that using “best efforts” to enforce the CVRA was an obligation of “[o]fficers and employees of the Department of Justice and other departments and agencies of the United States engaged in the detection, inaestigd,tion, or prosecution of crime … .” 18 U.S.C. 93771(c)(1) (emphasis added). Congress also permitted crime victims to assert their rights either in the court in which formal charges had already been filed ,,or, if no prosecution is underwag, in the district court in the district in which the crime occurred.” 18 U.S.C. gBZTI(dXB) (emphasis added). Despite Congress’clear intention to extend. rights to crime victims throughout the process, the Justice Department is read.ing the CVRA much more narrowly. In the recent OLC opinion, for example, the Department takes the position that ,,the CVRA is best read as providing that the rights identified in section 3771(a) are guaranteed. from the time that criminal proceed.ings are initiated (by complaint, information, or indictmenr) and cease to be available if all charges are dismissed either voluntarily or on the merits (or if the Government declines to bring formal 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. Bies (Dec. 12, 2010, publicly released May 20,2011) (hereinafter “OLC Opinion”). Indeed, in that same 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 1b0 Cong. Rec. 54260, 54268 (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)(b) pro_ vides a right to confer with the attorney for the Government in the case. This right is in_ tended to be erpansiue. For example, the vic_ tim has the right to confer with the Govern_ ment concerning any critical stage or dis_ position of the case. The right, howeuer. is not limited to these eramples. I ask the Senator if he concurs in this intent. Senator Kyl: Yes. The intent of this sec_ tion is just as the Senator says. This risht to confer does not give the crime victim any CONGRESSIONAL RECORD SENATE June 8,2011 right to
direct the prosecution. Prosecutors right to fair treatment and their right to should consider it part of their profession to confer with prosecutors when the Justice Debe available to consult with crime victims partment is negotiating pre-indictment plea about concerns the victims may have which agreements and non-prosecution agreements are pertinent to the case, case proceedings or with defense attorneys, including negotiadispositions. Under this provision, uictims are tions within the Fifth Circuit? able to confer with the Gouernment’s attorneA about proceedings after charging. 150 Cong. Rec. 54260, 54268 (Apr. 22, 2004) (statements of Sens. Feinstein & Kyl) (emphases 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 is therefore troubling to me that in this opinion the Justice 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 confer (or to be treated with fairness) until after charging. In giving an example that the victims would have such rights after charging, I was not suggesting that they had no such right earlier in the process. Elsewhere in my remarks I made clear that crime victims had rights under the CVRA even before an ind.ictment is filed. F or example, in the passage quoted above, I made clear that crime victims had a right to consult about both ,,the case” and “case proceedingg’,-i.g., both about how the case was being handled before being filed in court and. then later how the case was being handled in court ,,proceedings.” As another example, Senator Feinstein and I explained that we had drafted the CVRA to extend a right to victims to attend only “public” proceedings, because otherwise the rights would extend. to grand jury proceedings. See, e.g., lbO Cong. Rec. 54260, 54268 (Apr. 22, 2004) (statements of Sens. Feinstein & Kyt). Of course. no such limitation would have been necessary under the CVRA if CVRA rights attach (as the Department seems to think) only after the filing of a grand jury indictment. Courts have already rejected the Justice Department’s position that the CVRA applies only after an indictment is filed.. For example, in In re Dean, b2T F.gd 891 (bth Cir. 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 shaping any plea deal that the Department reached. In rejecting the Department’s position, 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 victims’ views on the possible details of a plea bargain.” Id. at 394. In spite of this binding d.ecision from the Fifth Circuit, crime victims’ ad.vocates have reported to me that the Justice Department is still proceeding in the Fifth Ciicuit 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 place the Department in violation of a binding court ruling that extend.s rights to thousand.s of crime victims in Louisiana, Mississippi, and Texas. And more generally, the bepart_ 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 SRIME VI6TIMS, RIGIIT To AppETTLATE pRorEcrroN Protection of crime victims’ rights in appellate courts is an important part of the CVRA. As you know, when Congress passed the CVRA, the federal courts of appeals had recognized that crime victims could take ordinary appeals to protect their rights. See, e.g., Doe u. United States, 666 F.2d 43, 46 (4th Cir. 1981) (rape victim allowed to appeal district court’s adverse “rape shield statute” ruling); United States v. Kones,77 F.3d 66 (3rd Cir. 1996) (victim allowed to appeal adverse restitution decision). Congress sought to leave these protections in place, while expanding them to ensure that crime victims could obtain quick vindication of their rights in appellate courts by providing-in $3771(d)(3)-that “[i]f the district court denies the relief sought, the [victim] may petition the court of appeals for a writ of mandamus.” 18 U.S.C. S3771(d)(3). Ordinarily, whether mandamus relief should issue is d.iscretionary. The plain language of the CVRA, however, specifically and clearly overruled. such discretionary mandamus standard.s by directing that “[t]he court of appeals shall take up and decide such application forthwith … .” 18 U.S.C. S3771(d)(3) (emphasis added). As I explained when the Senate considered the CVRA: [W]hile mandamus is generally discretionary, this provision [18 U.S.C. gB??1(d)(g)] means that courts must review these cases. Appeilate review of denials of victims’ rights is just as important as the initial assertion of a victim’s right. This provision ensures review and encourages courts to broadlg d.efend. the victims’ rights. 150 CoNG. REc. 54270 (Apr. 22, 2004) (statement of Sen. Kyl) (emphases added). Simi- Iarly, the CVRA’s co-sponsor with me, Senator 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 d.enial of their rights by a trial court to the court of appeals.” 150 CoNG. REc. 54262 (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 $ 3771(d)(3) was intended to allow crime victims to take accelerated appeats from dis_ trict court decisions denying their rights and have their appeals reviewed. under ord.inary standards of appellate review. In spite of that unequivocal legislative history, the Justice Department has in past cases asserted a contrary position. In In re Antrobus, 519 F.3d 1123 (10th Cir. 200g). 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 daug:hter. The Tenth Circuit ruled against them on the basis that the Antrobuses were not entiiled to regular appellate review, but only discre_ tionary mandamus review. See id. at Il24_25. The Tenth Circuit did not consider the legis_ lative history in reaching this conclusion, leading the Antrobuses to file 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 Case 9:08-cv-80736-KAM Document 85-1 Entered on FLSD Docket 06/17/2011 Page 4 of 4 June 8, 2011 Iegislative history because the CVRA “is unambiguous.” Response of the United States, In re Antrobzs, No. 08-4002, at 72 n.7 (10th Cir. Feb. 12, 2008). 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 rulings that crime victims were entitled to regular appellate review. See /n re W.R,. Hufl Asset Mgmt. Co.,409 F.3d 555, 562 (2d Cir. 2005); Kenna, u. US. Dist. Ct. for the Cent. Dist. of Ca., 435 F.3d 1011, 1017 (9th Cir. 2006): 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 “best efforts,” 18 U.S.C. $377f(c)(1), to afford crime victims their rights, how coutd the Department argue in Antrobus (and later cases) that the CVRA “unambiguously” denied crime victims regular appellate protections of their rights when three circuits had reached the opposite conclusion? GOVERNME}TT’S RIGIIT TO ASSERT ERROR DENIAL OF VICTIMS’ RIGI{TS To further bolster protection of crime victims’ rights, Congress also included an ad.ditional provision in the CVRA---SBZT1(dX4)- allowing the Justice Department to obtain review of crime victims’ rights issues in appeals filed by defendants: ,,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.” 18 U.S.C. $3771(d)(4). The intent underlying this provision was to supplement the crime victims’ appeal provision found in gBTZI(d)(B) by permitting the Department to also help develop a body of case law expanding crime victims, rights in the many defense appeals that are filed. It was not intended to in any way narrow crime victims’ rights to seek relief under S3771(dX3). Nor was it intended to bar crime victims from asserting other remedies. For instance, it was not intend.ed. to block crime victims from taking an ordinary appeal from an adverse decision affecting their rights (such as a decision denying restitution) under 28 U.S.C. 51291. Crime victims had been allowed to take such appeals in various circuits even before the passage of the CVRA. See, e.9., United States u. Kones. 77 F.3d 66 (3rd Cir. 1996) (crime victim allowed. to appeal restitution ruling); United, States u. Perry,360 F.3d 519 (6th Cir. 2004) (crime victims allowed to appeal restitution lien issue); Doe u. United States,666 F.2d 48.46 (4th Cir. 1981) (crime victim allowed. to appeal rape shield ruling). As I explained at the time the CVRA was under consideration, this provision supplemented those pre-existing d.ecisions by “allow[ing] the Government to assert a victim’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 extend.ed. appeal that the victim is not a party to.” 1b0 CoNG. REc. 54270 (Apr.22,2004) (statement of Sen. Kyl). I have heard from crime victims’ advocates that the Department has not been actively enforcing this provision. Indeed, these ad.vocates tell me that they are unaware of even a single case where the Department has used. this supplemental remedy. My final question: Is it true that the Department has never used this provision in even a single case in the more than six years since the CVRA was enacted? Sincerely, JoN KyL, U.S. Senator. CONGRESSIONAL RECORD¶
SENATE 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 Battalion, 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, Sergeant Xaysana enlisted in the Army in 2005. During over 6 years of service, he distinguished himself through his courage and dedication to duty. Sergeant Xaysana’s exemplary service quickly won the recognition of his commanding officers. He earned, among other decorations, the Iraq Campaign Medal, the Global War on Temorism 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- Iows 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 he touched, Sergeant Xaysana will forever be remembered as one of our country’s bravest. To Sergeant Xaysana’s parents, 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 Vorasack’s service and by your knowledge that his country will never forget him. We are humbled by his service and his sacrifice. GRAZING IMPR,OVEMENT ACT Mr. BARRASSO. Mr. president, I rise today to submit for the REcoRD an article written by Karen Budd-Falen and published May 28, 2011, in the Wyoming Livestock Journal. The article’s tiile is “Leveling the Playing Field: Support for the Grazing Improvement Act of 2071.” 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 iitigate grazing permit renewals for American ranchers. Livestock grazing on public lands has a strong tradition in Wyoming and all Western States. Ranchers aie proud s3609 stewards of the land, yet the permitting 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 environment 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 legisiation will provide the certainty and stability 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 families across the West. Their livelihood should not be held hostage by litigation and anti-grazing special interest groups. I thank my colleagues, Senators ENzr, CRApo, HATOH, HELLER, RrscH, and TnuwE, in supporting ranching families and this legislation. Mr. President, I ask unanimous consent to have printed in the RpconD the article to which I referred. There being no objection, the material was ordered to be printed in the RncoRo. as follows: [From the Wyoming Livestock Roundup, May 28, 20111 LEVELTNG rnp Pr,eyruc Frulo: SuppoRT FoR THE GRAZING IMPRoVEMENT AcT oF 2Ou (By Karen Budd-Falen) If jobs and the economy are the number one concern for America, why are rural communities and ranchers under attack by radical 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 environmental groups to eliminate grazing on public lands, radical environmental group pressure to force “voluntary” gtazing permit buyouts from “willing sellers,” and holding permittees hostage to the court deference given to regulatory “experts.” The playing field is not level and the rancher is on the losing side. The Grazing Improvement Act of 2011 will level the playing field. I urge your sup_ port. The Grazing Improvement Act of 2011 does the following:¶
- Term of Grazing 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 not affect either the BLM’s or Forest Service’s ability to make interim management decisions based upon resource or other needs, nor does it impact the preference right of renewal for term grazing permits or leases.
- 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
Gase 9:08-cv-80736-KAM Document 85-1 Entered on FLSD Docket 06/17/2011 Page 2 of 4 June 8, 2011 specifically, how do we get businesses CONGRESSIONAL RECORD - SENATE cost-benefit rules that govern all other agencies. In 1995, we had this debate and determined at that time we would and reduce the regulatory burden in allowed to speak as in morning busi- ness for up to 10 minutes each. The PRESIDING OFFICER. Without objection, it is so ordered. pendent agencies. In the interim, inde- The current administration has said pendent agencies have been providing some of the right things TRIBUTE TO LOUIS E. GIVAN moved in the wrong direction. We have more and more regulations, Mr. McCONNELL. Mr. seen a sharp increase in the last couple having a bigger and bigger impact. An rise today to recognize a distinguished in what are deemed to be independent 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 im- 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. Givan, a lifelong resident of 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 fice of Management and Budget, utive branch, are very much involved current administration has been regu- in putting out major rules and regula- lating at a pace of 84 major rules per tions. It is sometimes called the “head- year. By way of comparison, that is less fourth branch” of government be- Formerly a sailor himself in the U.S. about a 50-percent increase cause their rules are not reviewed for Navy, he has served for output during the Clinton administration, cost-benefit analysis, even by the OMB, which had about 56 the Office of Management and Budget, Raytheon Missile Systems operations rules per year, in its Office of Information and Regu- in Louisville. I was saddened to hear of the Bush administration as well. So we latory Affairs, so-called OIRA. his retirement from that position this have seen more regulations and more We have looked at some GAO data coming July 5. He will certainly be and put together various studies, and it I was encouraged to hear President appears to us that there are about 200 Givan—or, to those who know Obama’s words when he talked about regulations that were issued between him, Ed—was a 1966 graduate of St. Xa- 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 were auto- gree in mechanical engineering from to see action. We need to see it from matically excluded from the Unfunded the administration, Mandates Relief Act because they were at the University of Louisville. In 1968, agencies to provide real regulatory re- deemed to be from independent agen- he began working lief for job creators to be able to reduce Station in Louisville, this drag on the economy. So it is basically closing a loophole stayed at that post until 1996, in var- One commonsense step we can take is and closing this independent ious engineering and supervisory posi- to strengthen what is called the loophole, which I believe is a sensible funded Mandates Relief Act. It was reform. It has been endorsed by many passed in 1995. It was bipartisan. I was interestingly, a cosponsor in the House of Represent- current OIRA Administrator and the atives. It is an effort to require Federal regulators to evaluate the cost of rules, to look at the benefits and the costs, and to look at less costly alternatives The two amendments I would like to offer over the next few days as we con- sider the legislation before us would improve this Unfunded Mandates form Act, and it would reform it in ways that are entirely consistent with the principle President Obama has laid out and committed to in his Executive order on regulatory review. The first amendment would require agencies specifically to assess poten- tial effects of new regulations on job so focusing in on jobs-and market-based and non- governmental alternatives to regula- tion. This would broaden the scope of the Unfunded Mandates Relief Act to require cost-benefit analysis of rules that impose direct or indirect costs of $100 million a year or more. So, again, this is for major rules of $100 million or more. It would also require agencies to adopt the least costly or least burden- Mr. DURBIN. Mr. President, I ask that achieves whatever unanimous consent that the order for policy goals have been set out by Con- gress. It seems to me it is a common- the quorum call be rescinded. The PRESIDING OFFICER. Without sense amendment. I hope we will get objection, it is so ordered. In 1996 the Naval Ordnance Station transitioned to private ownership, and Ed’s leadership was crucial in making that transition a successful one. The Sunstein, who, in a 2002 Law Review ar- ticle, talked about the fact that this is an area where UMRA ought to be ex- tended because, again, there were so many independent agencies that were putting out regulations impacting job creation in this country. facility eventually became part of Raytheon Missile Systems, and Ed was appointed general manager in 2000. As general manager, Ed has led Raytheon Missile Systems in Louisville to great success for both the company and for the local community. sign, develop, and produce vital weap- should be imposed on American em- ons systems for our armed forces, ena- ployers or on State and local govern- bling America to have the most formi- ments without serious consideration of the costs, the benefits, and the avail- Weapons produced at the Louisville fa- of a least-burdensome alter- cility are used by our forces in all parts native. Both these amendments would of the globe, including in Iraq. move us further toward that sensible Kentucky is lucky to have benefitted and I hope the leadership will from Ed’s dedication, commitment to allow these amendments to be offered. excellence, and leadership for so many I think they fit well with the under- years. I am sure his wife Velma; his lying legislation. If they are offered, I sons Eddie, Tony, and Chris; and his certainly urge my colleagues on both grandchildren 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 Sence PRUGLING OFFICER. wish him the very best in retirement. and I am sure my colleagues join me in saying that this U.S. Senate The bill clerk proceeded to call the Mr. Louis E. “Ed” Givan for his faith- The second amendment would extend the Unfunded Mandates Relief Act to so-called independent agencies today are actually exempt from the CRIME VICTIMS’ RIGHTS ACT Mr. KYL. Mr. President, I ask unani- mous consent that the following letter be printed in the RECORD. There being no objection, the mate- Mr. President, I ask rial was ordered to be printed in the HOUSE_OVERSIGHT_012719¶
Case 9:08-cv-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, Washington, DC, June 6, 2011. Hon. ERIC H. HOLDER, Jr., Attorney General; U.S. Department of Justice, Washington, DC. DEAR ATTORNEY GENERAL HOLDER: I am writing about the Justice Department’s im- plementation of the Crime Victims’ Rights Act: an act that 1 co-sponsorea 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’ am writing to ask you to answer these ques- tions and explain the Department’s actions right to direct the prosecution. Prosecutors right to fair treatment and their right to should consider it part of their profession to confer with prosecutors when the Justice De- be available to consult with crime victims partment is negotiating pre-indictment plea about concerns the victims may have which agreements and non-prosecution agreements are pertinent to the case, case proceedings or with defense attorneys, including negotia- dispositions. Under this provision, victims are tions within the Fifth Circuit? able to confer with the Government’s attorney CRIME VICTIMS’ RIGHT TO APPELLATE about proceedings after charging. PROTECTION 150 Cong. Rec. S4260, S4268 (Apr. 22, 2004) Protection of crime victims’ rights in ap- (statements of Sens. Feinstein & Kyl) (em- pellate courts is an important part of the phases added). Read in context, it is obvious CVRA. As you know, when Congress passed that the main point of my remarks was that the CVRA, the federal courts of appeals had a victim’s right to confer was “intended to recognized that crime victims could take or- be expansive. Senator Feinstein and I then dinary appeals to protect their rights. See, gave various examples of situations in which e.g., Doe v. United States, 666 F.2d 43, 46 (4th victims could confer with prosecutors, with Cir. 1981) (rape victim allowed to appeal dis- the note that the right to confer was limited to these examples.” “not trict court’s adverse “rape shield statute” It is therefore ruling); United States v. Kones, 77 F.3d 66 (3rd troubling to me that in this opinion the Jus- Cir. 1996) (victim allowed to appeal adverse tice Department is quoting only a limited restitution decision). Congress sought to portion of my remarks and wrenching them leave these protections in place, GOVERNMENT PROTECTION OF VICTIMS’ RIGHTS out of context to suggest that I think that panding them to ensure that crime victims DURING INVESTIGATION OF A CRIME crime victims do not have any right to con- When Congress enacted the CVRA, it in- fer (or to be treated with fairness) until after tended to protect crime victims throughout the criminal justice process- tigative phases to the final conclusion of a case. Congress could not have been clearer in its direction that using “best efforts” to en- “[olfficers and employees of the Department of Justice and other departments and agen- cies of the United States engaged in the de- tection, investigation, or prosecution of crime ” 18 U.S.C. §3771(c)(1) (emphasis added). Congress also permitted crime victims to as- sert their rights either in the court in which formal charges had already been filed “or, if rights in appellate courts by providing-in §3771(d)(3)—that “[ilf the district court de- nies the relief sought, the [victim] may peti- tion the court of appeals for a writ of man- U.S.C. $3771(d)(3). 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 “[the court of appeals shall take up and decide such application forthwith ..” 18 U.S.C. §3771(d)(3) (emphasis added). As I explained when the Senate considered court in the district in which the crime oc- vould 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- For example, in the passage quoted above, I made clear that crime vic- tims had a right to consult about both “the about how the case was being handled before being filed in court and then later how the Feinstein and I explained that we had draft- ed the CVRA to extend a right to victims to “public” proceedings, because Despite Congress’ clear intention to extend otherwise the rights would extend to grand rights to crime victims throughout the proc- jury proceedings. See, e.g., 150 Cong. ess, the Justice Department is reading the 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 takes the position that “the CVRA is best the CVRA if CVRA rights attach (as the De- read as providing that the rights identified partment seems to think) only after the fil- in section 3771(a) are guaranteed from ing of a grand jury indictment. the Courts have time that criminal proceedings are initiated already rejected the Justice (by complaint, information, or indictment) Department’s position that the CVRA ap- and cease to be available if all charges are plies only after an indictment is filed. For dismissed either voluntarily or on the merits example, in In re Dean, 527 F.3d 391 (5th Cir. (or if the Government declines to bring for- 2008), the Department took the position that mal charges after the filing of a complaint).” crime victims had no right to confer with The Availability of Crime Victims’ prosecutors until after the Department had Rights Under the Crime Victims’ Rights Act of 2004, reached and signed a plea agreement with a Memorandum from John E. Bies (Dec. corporation (BP Products 17, whose illegal actions North America) 2010, publicly released May 20, 2011) (herein- had resulted in the after “OLC Opinion”). Indeed, in that same deaths of fifteen workers in an oil refinery explosion. opinion, I am surprised to see the Depart- Of course, this position meant ment citing a snippet from my floor remarks that the victims could have no role in shap- ing any during the passage of the CVRA for the prop- plea deal that the Department osition that crime victims can confer with reached. In rejecting the Department’s posi- prosecutors only after the formal filing of tion, the Fifth Circuit held that “the govern- charges. See id. at 9 (citing 150 Cong. Rec. ment should have fashioned a reasonable S4260, S4268 (Apr. 22, 2004) (statement of Sen. way to inform the victims of the likelihood of criminal charges and to ascertain the vic- I did want to express my surprise that your tims’ views on the possible details of a plea prosecutors are so clearly quoting marks out of context. Here is the full pas- In spite of this binding decision from the sage of my remarks, which were part of a Fifth Circuit, crime victims’ advocates have colloquy with my co-sponsor on the CVRA, reported to me that the Justice Department is still proceeding in Senator Feinstein: Section … (a)(5) pro- elsewhere on the assumption that it has no vides a right to confer with the attorney for obligations to treat victims fairly or to con- the Government in the case. This right is in- fer with them until after charges are for- tended to be expansive. For example, the vic- filed. Given the Fifth Circuit’s Dean tim has the right to confer with the Govern- this position appears to place the Department in violation of a binding ment concerning any critical stage or dis- ruling that extends rights to thousands of position of the case. The right, however, is not limited to these examples. I ask the Senator if crime victims in Louisiana, Mississippi, and more generally, Senator Kyl: Yes. The intent of this sec- ment’s position simply has no grounding in the clear language of the CVRA. tion is just as the Senator says. This right to confer does not give the crime victim any My first question: What is the Justice De- partment doing to extend to victims their tionary, this provision [18 U.S.C. § 3771(d)(3)] means that courts must review these cases. Appellate review of denials of victims’ rights is just 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. 150 CONG. REC. S4270 (Apr. 22, 2004) (state- ment of Sen. Kyl) (emphases added). Simi- larly, the CVRA’s co-sponsor with me, 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. ” 150 CONG. REC. S4262 (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). short, the legislative history shows that §3771(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- the Justice Department has in cases asserted a contrary position. In In re 519 F.3d 1123 (10th Cir. 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 not consider the legis- lative history in leading the Antrobuses to file petitions for rehearing and rehearing en that recounted this legislative history. In re- the Justice Department asked the Tenth Circuit to deny the victims’ petitions. Department told the Tenth Circuit that it could ignore the HOUSE_OVERSIGHT_012720¶
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 legislative history because the CVRA “is un- HONORING OUR ARMED FORCES ambiguous.” Response of the United States, In re Antrobus, No. 08 4002, at 12 n.7 (10th Cir. SERGEANT VORASACK T. XAYSANA Mr. BENNET. Mr. President, At the time that the Justice Department with a heavy heart that I rise today to stewards of the land, yet the permit- ting process to renew their permits is severely backlogged due to litigation aimed at eliminating livestock with the Tenth Circuit. At the time, other Circuits had all issued unanimous rul- ings that crime victims were entitled to reg- ular appellate review. See In re W.R. Asset Mgmt. Co., 409 F.3d 555, 562 (2d Cir. 2005); Kenna v. US. Dist. Ct. for the Cent. Dist. of Ca., 435 F.3d 1011, 1017 (9th Cir. 2006); 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 SGT Vorasack T. Xaysana. Xaysana, assigned to the Headquarters and Headquarters Company, talion, based in Fort Hood, TX, died on April 10, 2011. Sergeant Xaysana was Operation New Dawn in Kirkuk, Iraq. He was 30 years During times of high unemployment and increasing food prices, we need to be encouraging jobs in rural economies. to be fostering an ment to raise more high quality, safe, American beef and lamb; not litigating ford crime victims their rights, how the Department argue in Antrobus (and later A native of Westminster, CO, Ser- geant Xaysana enlisted in the Army in 2005. During over 6 years of service, he distinguished himself through his cour- 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 nied crime victims regular appellate protec- tions of their rights when three circuits had reached the opposite conclusion? GOVERNMENT’S RIGHT TO ASSERT ERROR Xaysana’s exemplary service quickly won the recognition of his commanding officers. He earned, among other deco- rations, the Iraq Campaign Medal, the To further bolster protection of crime vic- Congress also included an addi- tional provision in the CVRA-§3771(d)(4)— allowing the Justice Department to obtain review of crime victims’ rights issues in ap- a criminal case, the Government may assert as error the district court’s denial of any crime victim’s right in the Medal, and the Army Good Conduct 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 Sergeant Xaysana worked on the 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 §3771(d)(4). The intent underlying this provi- sion was to supplement the crime victims’ appeal provision found in §3771(d)(3) by per- mitting the Department to also help develop a body of case law expanding crime victims’ rights in the many defense appeals that are filed. It was not intended to in any way nar- selflessly putting country first, lived life to the fullest. He lived with a sense of the highest honorable purpose. RIscH, and THUNE, in supporting ranch- ing families and this legislation. Mr. President, I ask unanimous con- sent to have printed in the RECORD 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, LEVELING THE PLAYING FIELD: SUPPORT FOR THE GRAZING IMPROVEMENT ACT OF 2011 under §3771(d)(3). 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. had been allowed to take such appeals in var- ious circuits even before the passage of the F.3d 66 (3rd Cir. 1996) (crime victim allowed to appeal restitution ruling): United States v. Perry, 360 F.3d 519 (6th Cir. 2004) (crime vic- appeal restitution issue); Doe v. United States, 666 F.2d 43, 46 (4th 1981) (crime victim allowed to appeal throughout Iraq. Though his fate on pushed forward, protecting America’s citizens, her safety, and the freedoms we hold dear. For his service and the will forever be remembered as one of our country’s bravest. Xaysana’s parents, Thong Chanh and Manithip, and to his entire family, I cannot imagine the you must be feeling. I hope that, in time, the pain of your loss will be eased by your pride in Vorasack’s service and by your knowledge that his As I explained at the time the CVRA was country will never forget him. We are under consideration, this provision supple- rifice. humbled by his service and his sac- “allowing] 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 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 CONG. REC. S4270 (Apr. 22, 2004) (statement of 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 28, 2011, in the Wyoming Livestock Journal. The article’s title is “Leveling the Playing Field: Support for the Grazing Improvement Act of If jobs and the economy are the number one concern for America, why are rural com- munities and ranchers under attack by rad- ical environmental groups and overzealous federal regulators? depends upon the hundreds of products that livestock provide, vet 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 mental groups to eliminate grazing on public lands, radical environmental group pressure grazing permit mittees hostage to the court deference given to regulatory “experts.” The playing field is not level and the rancher is on the losing side. The Grazing Improvement Act of 2011 will level the playing field. I urge your sup- The Grazing Improvement Act of 2011 does I have heard from crime victims’ advocates that 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¶
- Term of Grazing 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 not affect either the BLM’s or Forest Service’s ability to make interim manage- ment decisions based upon resource or other it impact the preference right of renewal for term grazing permits or tion: Is it true that the Department has used this provision in even a single case in the more than six years since the The title of the article is instructive. Anyone living 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 States. Ranchers Transfer and Reissuance of codifies the various “appropriation riders” 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 HOUSE_OVERSIGHT_012721