Legislative and Regulatory Update
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In This Issue [No.84] April 30, 2004
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Cases
Source: Westlawinternational.com
Environmental Law: Local rules did not escape CAA pre-emption simply because they addressed purchase of vehicles
Vacating a decision of the Ninth Circuit Court of Appeals, the United States Supreme Court held that fleet rules adopted by California's South Coast Air Quality Management District (SCAQMD) did not escape pre-emption by the Clean Air Act (CAA) simply by virtue of the fact that they addressed the purchase of vehicles, rather than their manufacture or sale. The Supreme Court also remanded the case, indicating that at least certain aspects of the rules appeared to be pre-empted, but that it was appropriate that the lower courts address certain issues in the first instance.
Engine Manufacturers Ass'n v. South Coast Air Quality Management Dist.
Family Law: Constitutionality of court's inquiry into relationship between religious organization and child support obligor
The United States Supreme Court has declined to grant certiorari in a case in which a Minnesota appellate court held that the determination whether a religious organization was a child support obligor's employer for child support withholding purposes could be made by applying neutral principles of law, and, accordingly, the trial court's exercise of jurisdiction over the inquiry into the relationship between the organization and its member would not foster excessive governmental entanglement with religion. The appellate court found that the determination could be made without inquiry into the internal decisionmaking and governance of the religious organization.
Christ's Household of Faith v. Rooney
Education: Constitutionality of conducting mess hall prayer at state-operated military college -Certiorari Denied
The United States Supreme Court has denied certiorari in a case in which the Fourth Circuit Court of Appeals held that a prayer conducted in the campus mess hall of Virginia Military Institute (VMI), a state-operated military college, violated the Establishment Clause. The petition for certiorari presented the question whether a public institution of higher education may include a brief, non-denominational prayer as part of an official event involving an audience of adults, especially where the prayer serves legitimate secular purposes.
Mellen v. Bunting
Trademarks: Preemption of state law in intellectual property context-Certiorari Denied
The Supreme Court has denied certiorari in a case arising out of a former licensee and packager's unauthorized use of certification marks registered to the Idaho Potato Commission and the licensing agreement, which prevented the licensee from challenging the validity of the mark during the contract or thereafter. The Commission alleges that the Second Circuit, in allowing the former licensee to proceed with a cancellation claim, abrogated state law rights to enforce a contract, based simply on the balancing of public and private interests, in conflict with the Supreme Court's standards for preempting state law in the intellectual property context as delineated in Aronson v. Quick Point Pencil Co., 440 U.S. 257, 99 S.Ct. 1096, 59 L.Ed.2d 296 (1979), and Lear, Inc. v. Adkins, 395 U.S. 653, 89 S.Ct. 1902, 23 L.Ed.2d 610 (1969), and with the decisions of other courts refusing to preempt state contract law under the Lanham Act.
Idaho Potato Commission v. M & M Produce Farm & Sales
Maritime Law: Recognition of tort of negligent misrepresentation as applied to classification societies -- Certiorari Denied.
Certiorari has been denied in a case in which the Fifth Circuit Court of Appeals, moving into "novel but not entirely unchartered territory," held that general maritime law cautiously recognizes the tort of negligent misrepresentation as applied to classification societies. Classification societies are organized societies which undertake to arrange inspections and advise on the hull and machinery of a vessel from its initial stages in new building and thereafter. The societies produce a certificate concerning the vessel's seaworthiness. The certificates are widely relied upon by all sectors of the maritime industry as an indication that a vessel is reasonably fit for its intended use.
Nippon Kaiji Kyokai Corp. v. Otto Candies, L.L.C.
Taxation: Constitutionality of not disclosing findings of special trial judges in cases before Tax Court -- Certiorari Granted.
Granting certiorari in Docket Nos. 03-184 and 03-1034, the Supreme Court has agreed to examine the Tax Court's practice of not making public the report of factual and legal findings made by Special Trial Judges (STJ) assigned by the Tax Court to conduct trials in complicated tax cases. Under the practice, the reports are not disclosed to the taxpayer and are not part of the record on appeals from the Tax Court to the Court of Appeals.
Kanter v. C.I.R.
Telecommunications: Remedy for giving improper credits to female and minority bidders for spectrum licenses -- Certiorari Denied.
Denying certiorari, the United States Supreme Court has rejected the challenge of a larger successful bidder to the action of the Federal Communications Commission (FCC) in issuing "remedial bidding credits" to all small businesses who won 218-219 MHz spectrum licenses as part of an auction that was tainted by a special bidding credit granted only to minority and female licensees. The tainted credit lowered the price actually paid for licenses by 25% from the minority and female licensees' winning high bids.
Self Communications, Inc. v. F.C.C.
Civil Rights: Fault standard applicable to police officers who initiate high- speed chases ending in injury to third-parties -- Certiorari Denied.
Denying certiorari, the United States Supreme Court will not consider an Eighth Circuit decision that officers were entitled to qualified immunity from liability on a substantive due process claim for initiating a high-speed chase that ended when the fleeing suspect's car crashed into another vehicle, causing serious injury and death to the vehicle's occupants.
Slusarchuk v. Hoff
Labor and Employment: Burden imposed on white employee claiming reverse race discrimination -- Certiorari Denied.
The United States Supreme Court has denied certiorari in a Title VII reverse race discrimination and Family and Medical Leave Act (FMLA) case brought by a city employee who was terminated while on medical leave after he was indicted for mail fraud. The Seventh Circuit held that the first prong of the McDonnell Douglas test is altered in a reverse race discrimination case. Rather than showing he is a member of a minority, the employee must show background circumstances demonstrating that the particular employer "has reason or inclination to discriminate invidiously against whites" or must produce evidence that there is something "fishy" about the facts at hand. The employee failed to meet this burden. With respect to the employee's FMLA claim, the Seventh Circuit held that a termination that was motivated by poor quality of the employee's work did not violate FMLA simply because it occurred while he was on medical leave.
Phelan v. City of Chicago, Illinois
Criminal Justice: Terrorist's attorney and others could be charged with providing material support to terrorists.
Charges could be brought against the attorney for an imprisoned terrorist, as well as against the attorney's translator and an associate of the imprisoned terrorist, under the statute criminalizing the provision of material support to terrorists, because their acts of passing messages to and from the imprisoned terrorist constituted providing material support to terrorists. The messages concerned a conspiracy to kill and kidnap persons in a foreign country, and by passing the messages the defendants made the terrorist available as a co- conspirator in the plot.
U.S. v. Sattar
Legal Services: A "death penalty" discovery sanction was appropriate in an exceptional case.
Striking the pleadings of a client who sued her former attorneys for legal malpractice was appropriate in a case where the client refused to produce audiotapes she made of conversations between the attorneys and the client that would have proved or disproved her claims, and then later destroyed the tapes. In such an "exceptional" case, the trial court was only required to "consider" the availability of lesser sanctions, and was not required to test every available sanction.
Cire v. Cummings
News
U.S. and Canadian Clearance Received For Proposed Acquisition By The Circuit City
Circuit City Stores, Inc. (NYSE: CC - News) declared that it has received Canadian antitrust clearance for its proposed acquisition of InterTAN, Inc. (NYSE: ITN - News). It further informed that the U.S. Federal Trade Commission has determined that the transaction is not subject to premerger antitrust review under the Hart-Scott-Rodino Antitrust Improvements Act of 1976. The completion of the transaction remains subject to satisfaction of other conditions, including at least a majority of the fully diluted InterTAN shares being tendered into the offer.
EU Antitrust Regulators To Gain Enforcement Freedom
European Union regulators will gain new powers and have more freedom to concentrate on big international mergers and antitrust cases once the EU expands to 25 countries which is expected to happen in a short span. The moves, considered as the first major changes in EU antitrust rules in 40 years, are expected to open the door to U.S.-style private lawsuits against companies accused of anticompetitive practices. They will also allow EU Competition Commissioner Mario Monti and a yet-unnamed successor expected to take his place in the fall to hand off more of their lesser reviews to national regulators, decentralizing EU enforcement as the union expands.
Oracle Becomes Member Of Group Critical of Antitrust Law
Oracle Corp., joins the trade group which defended Microsoft in its landmark antitrust trial. It is fighting the U.S. government over its proposed $9.4 billion takeover of rival PeopleSoft Inc. A suit has been filed by the Justice Department to block Oracle's hostile takeover of PeopleSoft on antitrust grounds, charging it would eliminate one of only three players in the market for software sold to large business customers to manage finances, human resources, sales forces and other functions.
Smoking in Car with Kids To Be Banned By California Bill
California could become the first U.S. state to outlaw smoking in cars or trucks that have children inside after the passing of a bill which is being considered in the state Assembly to allow police to stop vehicles if a minor appears to be exposed to smoke from a pipe, cigar, cigarette, or "any other plant." The bill already has the support of the American Lung Association, which points to research showing secondhand smoke can cause cancer, respiratory infections and asthma.
Iran's Hard-line Judiciary Bans Use of Torture
Iran's judiciary known for its hardline principles ordered a ban on the use of torture which human rights groups say the Islamic Republic's security organizations routinely use to extract confessions. Although Iran's constitution specifically outlaws the use of torture of detainees, however, several attempts by the reformist-dominated parliament to pass a bill banning torture have been blocked by a constitutional watchdog run by religious hard-liners.
U.S. To Pay $600 Million Under Iran Court’s Order
Under an Iranian court’s order United States has been asked to pay $600 million in compensation for supplying ousted Iraqi leader Saddam Hussein with chemical weapons. It further ordered that the money in the case, brought by Iranian war veterans and disabled, should be paid to survivors of attacks on the town of Sardasht which borders Iraq. Iraqi gas attacks killed thousands of Iranians and Iraqi Kurds in the 1980-1988 Iran-Iraq war. Hundreds of thousands died on both sides and Iran has thousands disabled by chemical arms.
New Overtime Rules Defended By Bush Administration
The Bush administration defended its new overtime rules for white-collar workers against Democratic-led charges the regulations could cost millions of employees overtime pay. This has come in the wake of election-year pressure as it is expected to guarantee overtime protection for more workers and take it from less than it had initially proposed last year. The administration has estimated that about 107,000 workers will lose overtime protection, all of them now earning more than $100,000.
NYPD Ordered to Review Whistleblower Case
A judge while hearing a pension dispute sided with a detective, Baird, who said that he was driven off the police force by anonymous threats and hate mail because he exposed NYPD corruption. The judge said that the detective should be lauded for his courage rather than destroyed by the system whose integrity he sought to preserve. During the early 1990s, Baird informed a special commission about cover-ups within the internal affairs division, where he worked. Using a code name, he produced documents and witnesses to show that the division hid cases that might embarrass the department.
S.C. Takes A Tough Stand On Internet Child Predators
State law enforcement finally has a law that can be used to prosecute Internet child predators before any physical contact takes place. The law mandates a 10-year sentence for each offense, which Attorney General Henry McMaster said can multiply if there are several online contacts before an arrest. South Carolina is joining 29 other states by making it illegal to stalk, lure or entice a minor for abduction or sexual assault.
Jury Award Tops $1 Billion in Wyeth Case
An amount of $1 billion has been awarded by the Texas Jury to the family of a woman who died after using one of the drugs in the fen-phen diet drug regimen. However, the company said there is a strong basis to overturn the ruling in the District Court of Jefferson County, Texas, based on "legal errors made during the trial and in the charge to the jury." The jury verdict represents a setback to Wyeth, which has already taken $16.6 billion in charges for past and future payments to the to six-million Americans who took Fen-phen, a diet drug combination that paired Pondimin or another Wyeth drug called Redux with phentermine.
Primary Market Division
Issue of Digitally Signed Circular for Amendments to the SEBI (Disclosure and Investor Protection) {DIP} Guidelines, 2000
Circular No. SEBI/CFD/DIL/MB/2004/22/4 Dated 22.04.2004 : It has been cleared that circulars pertaining to amendments to SEBI (Disclosure and Investor Protection) Guidelines, 2000 would henceforth be issued only in electronic form with digital signatures in conformity with the information Technology Act, 2000 and that physical dispatch of circulars would be discontinued.
Secondary Market Division
Detailed System Flow for Mandatory Use of STP System for All Institutional Trades Executed on the Stock Exchanges
Circular No SEBI/DNPD/Cir-23/04 Dated 27.04.2004 : The present circular has been released in continuation of the circular no. DNPD/Cir-22/2004 dated April 1, 2004 which was mandating the the use of the Straight Through Processing (STP) System for all institutional trades w.e.f. July 1, 2004. This circular contains the detailed system flow of the STP framework. It is required that a STP user intending to send an instruction would send the message to his STP service provider after digitally signing the same and the same should be verified by STP service provider and forward it to the recipient STP user. A diagram to this has also been provided.
Settlement of Transactions in the Case of Holidays
Circular No. SEBI/MRD/Policy/AT/Cir-19/2004 Dated 21.04.2004 : With a view to facilitate the smooth completion of settlement process and help members of the Stock Exchanges meet their obligations in a timely manner under circumstances where there is lack of uniformity of holidays, the Stock Exchanges/Depositories are advised to follow the guidelines and adhere to the time line laid down in this circular. These guidelines are based on the recommendations of the Advisory Committee on Derivatives and Market Risk Management (RMG) and have been finalised in consultation with the Stock Exchanges and the Depositories. According to the guideines :-
1. The Stock Exchanges shall clear and settle the trades on a sequential basis
2. The cash/Securities pay out from the first settlement shall be made available to the member for meeting his pay-in obligations for the subsequent settlement/s
3. Further, in-order to meet his pay-in obligations for the subsequent settlement, the member may need to move securities from one depository to another.
4. The Stock Exchanges/Depositories shall follow a strict time schedule to ensure that the settlements are completed on the same day
5. The Clearing Corporation/Clearing House of the Stock Exchanges shall execute Auto DO facility for all the settlements together
Renewal of Recognition to Ludhiana Stock Exchange Association Limited
Notification No. SO524(E) Dated 20.04.2004 : SEBI has granted renewal of recognition The Ludhiana Stock Exchange Association Limited for a period of one year commencing on the 28th day of April, 2004 and ending on the 27th day of April, 2005 in respect of contracts in securities subject to the condition that the said Exchange shall comply with the advice of SEBI communicated vide letter No. MRD/DSA/LSE/7831/04 dated April 20, 2004, within a period of three months from the date of this notification i.e. 20.04.2004.
Renewal of Recognition to Gauhati Stock Exchange Limited
Notification No. SO523(E) Dated 20.04.2004 : SEBI has granted renewal of recognition The Gauhati Stock Exchange Limited for a period of one year commencing on the 1 st day of May, 2004 and ending on the 30th day of April, 2005 in respect of contracts in securities subject to-the condition that the said Exchange shall commence trading only after obtaining final approval from SEBI for establishment of the Settlement Guarantee Fund and the said Exchange shall comply with the observations made in Report on the inspection of the said Exchange conducted by the SEBI during the period March, 23-24, 2004 and communicated to the said Exchange vide letter No. SEBI/ERO/BNS/2004/7382 dated April 8, 2004.
Press Release
Constitution of High Level Task Force
Press Release No. PR No.92/2004 Dated 23.04.2004 : A High level task force named Securities Markets Infrastructure Leveraging Expert Task Force (SMILE Task Force) has been constituted by SEBI under the chairmanship of Dr P J Nayak, Chairman and MD of UTI Bank. The SMILE Task Force is constituted to carry out a thorough 'health check' on the Securities markets infrastructure encompassing all segments of the markets (viz. equities, debt, derivatives, fund products) and covering all market participants such as exchanges, trading platforms, clearing and settlement systems, payment systems, depositories, issue houses (registrars) and other intermediaries.
Income-tax (Eighth Amendment) Rules, 2004
Notification No. 142/2004 Dated 20.04.2004 : In the Income Tax Rules 1962 a new rule 18DC has been inserted prescribing the area, facilities and amenities for convention centres and particulars of audit report for claiming deduction u/s 80 IB(7B) of the Income Tax Act, 1961. Through amendment a new Form No. 10CCBB has also been introduced which is to be used, in case of convention centres, for filing of report of audit along with the return of income.
These amendments have been brought into effect retrospectively from 01.04.2002.
Directions of the Hon'ble Supreme Court of India dated 14.10.2003 in the Matter of WP No. 657/95
Circular No. 31/2004 Dated 26.04.2004 : The attention has been diverted to the judgement dated 4.10.2003 of the Hon'ble Supreme Court of India in WP No. 657 of 1995 in Research Foundation for Science Technology and National Resource Policy vs. Union of India relating to import of hazardous wastes. In this judgement directions had been issued regarding prohibition on import of the hazardous wastes.
Anti Dumping Cases
Notification No. 57/2004 Dated 20.04.2004 : Anti Dumping Duty has been imposed on Oxo-Alcohols originating in, or exported from Poland, South Korea, Indonesia, Saudi Arabia, Russia, Iran, USA and EU. The anti-dumping duty imposed under this notification shall be levied for a period of five years with effect from the date of Imposition of provisional anti-dumping duty, i.e. the 27th day of January, 2000, and shall be paid in Indian currency.
Notification No. 55/2004 Dated 19.04.2004 : Anti Dumping Duty has been imposed on Plastic Ophthalmic Lenses originating in, or exported from China RP and Chinese Taipei. The anti-dumping duty imposed under this notification shall be levied with effect from the date of imposition of the provisional anti-dumping duty, i.e. the 5th September, 2003, and shall be paid in Indian currency.
Notification No. 54/2004 Dated 19.04.2004 : Anti Dumping Duty has been imposed on Titanium dioxide originating in, or exported from China RP. The anti-dumping duty imposed under this notification shall be levied with effect from the date of imposition of the provisional anti-dumping duty, i.e. the 11th July, 2003, and shall be paid in Indian currency.
Foreign Exchange Management (Deposit) Regulations, 2000 - Acceptance of Deposits - Revised Guidelines
Circular No. A.P.(DIR Series) Circular No. 89 Dated 24.04.2004 : The issue relating to acceptance of deposits from NRIs by persons other than Authorised Dealers/Authorised Banks has been reviewed in the light of current developments. It has been decided that deposits by NRIs with persons other than Authorised Dealers/Authorised Banks by debit to NRO Accounts may continue as hitherto provided that the amount deposited with such entities does not represent inward remittances or transfer from NRE/FCNR(B) Accounts into the NRO account. Deposits by NRIs with persons other than Authorised Dealers/Authorised Banks out of inward remittances from overseas or by debit to NRE/FCNR (B) Accounts shall henceforth not be permissible. All persons other than Authorised Dealers/Authorised Banks may continue to hold and renew existing deposits held in their books in the name of NRIs on repatriation or non-repatriation basis, as the case may be. The interest earned on such deposits will continue to be eligible for repatriation.
Deferred Payment Protocols Dated 30th April 1981 and 23rd December 1985 between the Government of India and erstwhile USSR
Circular No. A.P.(DIR Series) Circular No. 88 Dated 22.04.2004 : The rupee value of the special currency basket has been revised and fixed at Rs. 56.8476 with effect from April 02, 2004. It was earlier indicated as Rs.59.3395 effective from January 01, 2004.
Declaration of Dividends by Banks
Notification No. DBOD.NO.BP.BC.80/ 21.02.067/2003-04 Dated 23.04.2004 : The policy approach adopted by the Reserve Bank with regard to payment of dividends by banks has been recently reviewed in consultation with the Standing Technical Advisory Committee on Financial Regulation (STACFR) and it has been decided that the regulatory focus with regard to payment of dividend by banks should shift from 'quantum of dividend' to 'dividend payout ratio'. According to the revised guidelines on dividends payable by banks:-
Only the Banks, having the CRAR of at least 11 % for preceding two completed years and the accounting year for which it proposes to declare dividend and
Net NPA less than 3 %, shall be eligible to declare dividends without prior approval of RBI. In case any bank does not meet the criteria prescribed in it should obtain the prior approval of the Reserve Bank before declaring any dividend.
Relaxation to Trade and Industry In the State of Jammu and Kashmir
Notification No. DBOD.BP.BC.77 /21.04.012/ 2003-04 Dated 21.04.2004 : With a view to ensuring larger flow of credit to trade and industry in the State of Jammu and Kashmir on the one hand and bringing about appropriate changes in the monitoring mechanism on the other,a comprehensive package of concessions / relaxations is recommended for immediate implementation by banks operating in the State of Jammu and Kashmir. The concessions / credit relaxations to borrowers / customers in the State of Jammu & Kashmir will be operative for a further period of one year, i.e., up to 31st March 2005. The main concessions or relaxations provided under the package are:-
1. Increased working capital facilities may be sanctioned by the bank depending on the merits of each case
2. Finance against accepted hundies (Usance bills) should be encouraged
3. The banks may honour small Fixed Deposit Receipts, say up to Rs.10,000/- of the Kashmiri migrants at the designated branches without verifying details from the branch of origin against indemnity bond, where necessary.
4. Concessions may be given in service tariffs for remittances. The same may also be extended to collection of outstation bills/cheques.
Interest Rates on Deposits under Non Resident (External) Rupee Account (NRE Accounts)
Notification No. DBOD. No. Dir. BC.76/13.01.09/2003-04 Dated 17.04.2004 : The interest rates on NRE Deposits for one to three years maturity, contracted effective close of business in India on April 17, 2004, should not exceed the LIBOR/SWAP rates for US dollar of corresponding maturity.
With a view to aligning interest rates on various categories of NRE deposits, it has been decided to link the interest rate on NRE savings deposits also to LIBOR/SWAP rates with effect from close of business in India on April 17, 2004. The interest rates on NRE savings deposits should not exceed the LIBOR/SWAP rate for six months maturity on US dollar deposits and may be fixed quarterly on the basis of the LIBOR/SWAP rate of US dollar on the last working day of the preceding quarter. For the quarter April-June 2004, the US dollar LIBOR/SWAP rate as on the last working day of March 2004 would be applicable.
It has been clarified that since the account holder of NRE savings deposits can withdraw savings deposits at any time, banks should not mark any type of lien, direct or indirect, against these deposits
Non-Banking Financial Companies, Miscellaneous Non-Banking Companies and Residuary Non-Banking Companies - Interest Rate on NRI deposits
Notification No. DNBS (PD) CC. No. 36 / 02.01 / 2003-04 04 Dated 20.04.2004 : RBI has revised the interest rate payable on the NRE deposits accepted by scheduled commercial banks and it has been decided that the rate of interest on these deposits should not exceed the LIBOR / SWAP rates for US dollar of corresponding maturity. Accordingly, it has been advised that the rate of interest on the NRI deposits payable by NBFCs, MNBCs and RNBCs shall not exceed the LIBOR/SWAP rates for US dollar of corresponding maturity on fresh deposits contracted from the close of business on April 17, 2004. The maturity period of repatriable NRI deposits would continue to be one to three years. The change in interest rate will also apply to repatriable NRI deposits renewed after their present maturity period.
Sale of Government Securities Allotted in the Auctions for Primary Issues on the Same Day
Circular No. BPD.PCB.Cir 44 /09.29.00/2003-04 Dated 12.04.2004 : Currently, Government Securities and Treasury Bills are permitted to be traded only on T+0 or T+1 settlement basis, unless they are traded on the Stock Exchanges. Therefore it has been clarified that, any sale of securities allotted in primary auctions, in terms of the above circular, should be only on a T+0 or T+1 settlement basis.
Government of India Announces the Sale (Re-Issue) of Dated Security under Market Stabilisation Scheme Through Price Based Auction
Press Release No. 2003-2004/1258 Dated 23.04.2004 : The Government of India had announced the sale (re-issue) of "6.18 percent Government Stock 2005" under Market Stabilisation Scheme for a notified amount of Rs.5,000 crore through a price based auction using multiple price auction method. The auction has been conducted by the Reserve Bank of India (RBI) at Mumbai on Tuesday, April 27, 2004. Up to 5 per cent of the notified amount of the sale of the stock will be allotted to eligible individuals and institutions as per the Scheme for Non-Competitive Bidding Facility in the Auction of Government Securities.
Amendments in Handbook of Procedures (Vol. I)
Public Notice No. 61 (RE-2003)/2002-07 Dated 21.04.2004 : An amendment has been made in Appendix 28A by adding an agency to the "List of IS/ISO 9000 (series) Certification agency". The agency added is 31. Germanischer Lloyd Certification GmbH, Vorsetzen 32 D-20457, Hamburg, Germany and its authorized representative in India M/s Germanischer Lloyd Industrial Services India Pvt Ltd, New No 9, Balaji Avenue, IInd St, T. Nagar, Chennai 600 017.
Anti Dumping Case
Notification No. 14/26/2002-DGAD Dated 20.04.2004 : New Shipper Review of Anti-dumping Duty Imposed on Imports of Lead Acid Batteries Requested by M/s. CSB Battery Guangzhou Co. Ltd. China PR--Final Findings.
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