[Federal Register Volume 62, Number 148 (Friday, August 1, 1997)]
[Notices]
[Pages 41361-41365]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-20379]
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DEPARTMENT OF COMMERCE
International Trade Administration
[C-357-803, C-357-403, C-357-002, C-357-005]
Leather From Argentina, Wool From Argentina, Oil Country Tubular
Goods From Argentina, and Carbon Steel Cold-Rolled Flat Products From
Argentina; Final Results of Changed Circumstances Countervailing Duty
Reviews
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
ACTION: Notice of final results of changed circumstances countervailing
duty reviews and revocation and amended revocation of countervailing
duty orders.
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SUMMARY: The Department of Commerce (the Department) has completed the
changed circumstances reviews of the countervailing duty orders on
Leather from Argentina (55 FR 40212), Wool from Argentina (48 FR
14423), Oil Country Tubular Goods from Argentina (OCTG) (49 FR 46564),
and Carbon Steel Cold-Rolled Flat Products from Argentina (Cold-Rolled)
(49 FR 18006). The Department initiated these reviews on April 2, 1996
to determine whether it has the authority to assess countervailing
duties on entries of merchandise covered by these orders occurring on
or after September 20, 1991--the date on which Argentina became a
``country under the Agreement'' within the meaning of 19 U.S.C.
Sec. 1303(a)(1) (1988) (repealed 1994). On May 2, 1997, the Department
published the preliminary results of these changed circumstances
reviews (65 FR 24085).
The Department determines that based upon the ruling of the U.S.
Court of Appeals for the Federal Circuit in Ceramica Regiomontana v.
United States, 64 F.3d 1579, 1582 (Fed. Cir. 1995), it does not have
the authority to assess countervailing duties on entries of merchandise
covered by these orders occurring on or after September 20, 1991. As a
result, we are revoking the orders on Wool, Leather, and OCTG with
respect to all unliquidated entries occurring on or after September 20,
1991. With respect to Cold-Rolled, the order was revoked effective
January 1, 1995; therefore, we are amending the effective date of the
revocation (with respect to all unliquidated entries) to September 20,
1991.
EFFECTIVE DATE: August 1, 1997.
FOR FURTHER INFORMATION CONTACT: Richard Herring, Office of AD/CVD
Enforcement VI, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW., Washington, DC 20230; telephone: (202) 482-
2786.
SUPPLEMENTARY INFORMATION:
Scope of Reviews
The scope of each of the four countervailing duty orders is
detailed in the Appendix to this notice.
Background
I. The Orders
The countervailing duty orders on Leather, Wool, Cold-Rolled, and
OCTG from Argentina were issued pursuant to former section 303 of the
Tariff Act of 1930, as amended (the Act)(repealed, effective January 1,
1995, by the Uruguay Round Agreements Act). Under former section 303,
the Department could assess (or ``levy'') countervailing duties without
an injury determination on two types of imports: (i) Dutiable
merchandise from countries that were not signatories of the 1979
Subsidies Code or ``substantially equivalent'' agreements (otherwise
known as ``countries under the Agreement''), and (ii) duty-free
merchandise from countries that were not signatories of the 1947
General Agreement on Tariffs and Trade (1947 GATT). See S. Rep. No.
249, 96th Cong. 1st Sess. 103-06 (1979); H. Rep. No. 317, 96th Cong.
1st Sess. 43, 49-50 (1979).
When these countervailing duty orders were issued, Wool, Leather,
Cold-Rolled and OCTG, were dutiable. Also,
[[Page 41362]]
at that time, Argentina was not a ``country under the Agreement'' and,
therefore, U.S. law did not require injury determinations as a
prerequisite to the issuance of these orders.
II. Ruling by the Court of Appeals for the Federal Circuit on Ceramic
Tile From Mexico
On September 6, 1995, the Court of Appeals for the Federal Circuit
(``Federal Circuit'') held, in a case involving imports of dutiable
ceramic tile, that once Mexico became a ``country under the Agreement''
on April 23, 1985 pursuant to the Understanding between the United
States and Mexico Regarding Subsidies and Countervailing Duties (the
Mexican MOU), the Department could not assess countervailing duties on
ceramic tile from that country under former section 303(a)(1) of the
Act. Ceramica Regiomontana v. United States, 64 F.3d 1579, 1582 (Fed.
Cir. 1995) (Ceramica). ``After Mexico became a `country under the
Agreement,' the only provision under which ITA could continue to impose
countervailing duties was section 1671.'' Id. One of the prerequisites
to the assessment of countervailing duties under 19 U.S.C. Sec. 1671
(1988), according to the court, is an affirmative injury determination.
See also Id. at Sec. 1671e. However, at the time the countervailing
duty order on ceramic tile was issued, the requirement of an
affirmative injury determination under U.S. law was not applicable.
Therefore, the court looked to see whether the statute contained any
transition rules when Mexico became a country under the Agreement which
might provide the order on tile with the required injury test.
Specifically, the court looked at section 104(b) of the Trade
Agreements Act of 1979, Pub. L. No. 96-39 (July 20, 1979) (1979 Act).
Section 104(b) was designed to provide an injury test for certain
countervailing duty orders issued under former section 303 prior to the
effective date of the 1979 Act (which established Title VII and, in
particular, section 701 of the Act). However, in order to induce other
countries to accede to the 1979 Subsidies Code (or substantially
equivalent agreements), the window of opportunity was intentionally
limited. In order to qualify (i) the exporting nation had to be a
country under the Agreement (e.g., a signatory of the Subsidies Code)
by January 1, 1980, (ii) the order had to be in existence on January 1,
1980 (i.e., the effective date of Title VII), and (iii) the exporting
country (or in some instances its exporters) had to request the injury
test on or before January 2, 1983.
In Ceramica, however, the countervailing duty order on ceramic tile
was issued in 1982 and Mexico did not become a country under the
Agreement until April 23, 1985. Therefore, the court held that in the
absence of an injury test and the statutory means to provide an injury
test, the Department could not assess countervailing duties on ceramic
tile and the court ordered the Department to revoke the order effective
April 23, 1985 (i.e., the date Mexico became a country under the
Agreement). Ceramica, 64 F.3d at 1583. As the court stated, once Mexico
became a ``country under the Agreement,'' ``[t]he only statutory
authority upon which Congress could impose duties was section 1671.
Without the required injury determination, Commerce lacked authority to
impose duties under section 1671.''
III. The Issue
On September 20, 1991, the United States and Argentina signed the
Understanding Between the United States of America and the Republic of
Argentina Regarding Subsidies and Countervailing Duties (Argentine
MOU). Section III of the Argentine MOU contains provisions
substantially equivalent to the provisions in the Mexican MOU that were
before the court in Ceramica. Therefore, on April 2, 1996, the
Department initiated the instant changed circumstances reviews in order
to determine whether it has the authority, in light of the Ceramica
decision, to assess countervailing duties on unliquidated entries of
merchandise made on or after September 20, 1991 (i.e., the effective
date of the Argentine MOU) which are covered by the orders on Leather
from Argentina, Wool from Argentina, OCTG from Argentina, and Cold-
Rolled from Argentina. See Initiation of Changed Circumstances
Countervailing Duty Administrative Reviews: Leather from Argentina,
Wool from Argentina, Oil Country Tubular Goods from Argentina, and
Cold-Rolled Carbon Steel Flat Products from Argentina, 61 FR 14553
(Apr. 2, 1996).
Final Results of Changed Circumstances Countervailing Duty Reviews and
Revocation or Amended Revocation of Countervailing Duty Orders
The orders on Leather, Wool, OCTG, and Cold-Rolled from Argentina
involve the same set of pertinent facts as the Department faced in
connection with the countervailing duty order on ceramic tile from
Mexico. For this reason, the Federal Circuit's decision in Ceramica
applies to the orders against Argentina, and requires the Department to
revoke these orders as of the date Argentina became a ``country under
the Agreement.''
First, at the time the countervailing duty orders on Mexico and
Argentina were issued, the requirement of an affirmative injury
determination under U.S. law was not applicable. Second, both countries
subsequently entered into substantially equivalent agreements with the
United States and, hence, became ``countries under the Agreement''
within the meaning of former section 303(a)(1) of the Act. Third, once
Mexico and Argentina qualified as countries under the Agreement, the
assessment of countervailing duties on subsequent entries of dutiable
merchandise became dependent upon a finding of subsidization and injury
in accordance with section 701 of the Act (i.e., section 1671). See
Ceramica, 64 F.3d at 1582. Fourth, none of the transition rules in
effect when both countries attained this status afforded the statutory
means of providing an injury test. Specifically, section 104 of the
1979 Act only applies to countervailing duty orders issued before
January 1, 1980 and section 753 did not exist on September 20, 1991.
Hence, as the Court stated in Ceramica, ``[W]ithout the required injury
determination, Commerce lacked authority to impose duties under section
1671.''
Pursuant to section 751(d) of the Act, the Department may revoke,
in whole or in part, a countervailing duty order if the Department
determines, based on a review under section 751(b)(1) of the Act, that
changed circumstances exist sufficient to warrant revocation. For the
foregoing reasons, and consistent with our determinations in Ceramic
Tile from Mexico, 61 FR 6630 (Feb. 21, 1996) and Leather Wearing
Apparel from Mexico, 61 FR 26163 (May 24, 1996), the Department has
determined that the Ceramica ruling requires revocation of these orders
and, therefore, the requirement for revocation based upon changed
circumstances has been met. Accordingly, we hereby amend our earlier
revocation of the order on Cold-Rolled steel by changing the effective
date from January 1, 1995 to September 20, 1991. For the orders on
Wool, Leather, and OCTG from Argentina, we are revoking these measures
effective September 20, 1991. These revocations will apply to all
unliquidated entries of subject merchandise entered or withdrawn from
warehouse for consumption on or after September 20, 1991.
[[Page 41363]]
Comments From Interested Parties
In our preliminary results, we invited interested parties to submit
comments on our intent to revoke the orders on Leather, Wool and OCTG,
and on our intention to amend the revocation of Cold-Rolled. With
respect to the countervailing duty orders on Leather and Wool, we
received written comments in opposition to our preliminary results from
a coalition of U.S. leather manufacturers consisting of Hermann-Oak
Leather Co., Howes Leather Co., Inc., Irving Tanning Co., Prime Tanning
Co., Inc., Salz Leather Co., S.B. Foot Tanning Co., Suncook Tanning
Corp., United Tanners, Inc., Westfield Tanning Co., and Wickett & Craig
of America, Inc. (the Coalition), and the American Sheep Industry
Association, Inc. (``ASI''), an association of U.S. wool producers
(hereinafter the Coalition and ASI will jointly be referred to as
``petitioners''). We also received written comments in support of our
preliminary results from the Government of Argentina (``GOA'') with
respect to all four countervailing duty orders. In connection with the
order on Leather, the Department received written (rebuttal) comments
from several importers that supported the preliminary results--
Leather's Best, Inc., Leather's Best, L.P., Salco Leather, Inc., and
Edsim Leather Company, Inc. (hereinafter collectively referred to as
``Edsim''). Finally, the American Textile Manufacturers Institute
(``ATMI'') also submitted written (rebuttal) comments in support of the
preliminary results on behalf of its member companies, some of which
are importers of wool.
Comment 1: While petitioners concede that the Federal Circuit's
decision in Ceramica applies to the orders against Argentina, they
argue that the Department has misconstrued the court's decision.
Contrary to what they assert is the Department's view, the petitioners
contend that the court did not mandate the revocation of the
countervailing duty order on ceramic tile because ``there was no
affirmative injury finding at * * * [the] precise time'' that Mexico
became a ``country under the Agreement.'' Rather, they assert, the
court ordered revocation because the domestic ceramic tile industry did
not request an injury test under section 753 of the Act and, therefore,
``there could never be an affirmative injury finding'' in connection
with the entries subject to the contested administrative review.
This situation, the petitioners argue, is quite different from the
situation the Department confronts in connection with the
countervailing duty orders on Wool and Leather from Argentina. Here,
they maintain, the domestic industries have requested an injury test
under section 753(a) for entries of Argentine wool and leather
occurring after January 1, 1995.
The GOA contends that the petitioners stretch the holding in the
Ceramica case ``beyond recognition.'' According to the GOA, the
Department's preliminary results fit squarely with the court's decision
that in the absence of statutory authority to maintain the orders under
section 303 of the Act, ``the Department's actions under section 701
were illegal.''
While Edsim generally supports the GOA's position, it has a
slightly different view of the Ceramica case. Edsim argues that the
central teaching of the Ceramica decision is that a countervailing duty
order is only viable if the Department has the statutory authority to
maintain it under either section 303 or 701 of the Act. If an order--
such as the one covering Leather from Argentina--``changes status so
that it does not satisfy the prerequisites of either statutory section,
then it becomes inoperative as of the date of the status change.''
Viewed in this light, Edsim argues, it is ``absurd'' to claim that
section 753, which did not take effect until January 1, 1995, could
apply to orders which were inoperative as of September 20, 1991.
Finally, the ATMI, which supports revocation of the order on Wool,
accuses petitioners of attempting to ``rewrite'' the Ceramica decision.
First, they claim that the decision does not turn on the absence of a
procedure (or mechanism) for providing an injury determination at some
future point in time. Second, they reject the claim made by petitioners
that the absence of a request for a section 753 injury investigation
was a key underpinning to the court's decision. ``If this were a basis
for the decision,'' the ATMI asserts, ``the majority or at least the
dissenting opinion certainly would have mentioned it * * *''
Department's Position: We disagree with petitioners. First, the
preliminary results do not rest on the belief that once Argentina
became a ``country under the Agreement,'' it was incumbent upon the
United States to provide an injury test in connection with the subject
orders ``at that precise time.'' Congress has never structured
transition rules, such as section 104(b) of the 1979 Act or section 753
of the Act, so that they provide an (affirmative or negative) injury
determination at the very moment when the status of the country covered
by an order changes.
Second, the failure of the domestic ceramic tile industry to
request an injury test under section 753 of the Act was not a
significant aspect of the court's decision. If it had been, presumably
the court would have discussed this fact in its opinion. What was
important to the court, as we explain above, was the absence of any
statutory authority to provide an injury test at the time Mexico became
entitled to such a test (i.e., when Mexico became a ``country under the
Agreement'').
When viewed in this, its proper light, the Ceramica decision
compels the revocation of the orders covering Leather, Wool, OCTG, and
Cold-Rolled from Argentina. In both situations, once Mexico and
Argentina qualified as countries under the Agreement, the assessment of
countervailing duties on subsequent entries of dutiable merchandise
became dependent upon a finding of subsidization and injury in
accordance with section 701 of the Act. See Ceramica, 64 F.3d at 1582.
However, none of the transition rules in effect when both countries
attained this status afforded the statutory means of providing an
injury test. Specifically, section 104 of the 1979 Act only applies to
countervailing duty orders issued before January 1, 1980, and section
753 did not come into effect until January 1, 1995.
Comment 2: Petitioners assert that the Department's preliminary
results read section 753 out of existence. According to the
petitioners, section 753 was designed to remedy the very problem (i.e.,
absence of an injury test) that arose in Ceramica. By stating in its
preliminary results that section 753 is not applicable to the orders
against Argentina, the Department, asserts petitioners, has violated a
fundamental principle of statutory construction that requires statutes
to be read so as to render all of their provisions meaningful.
Department's Position: The Department's position on section 753's
applicability to the Argentine orders is not based upon an
interpretation of the statute that is disputed by petitioners.
Petitioners concede that section 753 did not come into effect until
January 1, 1995, long after Argentina became a ``country under the
Agreement'' and the obligation to provide an injury test arose. As
explained above, the applicability of 753 to these orders turns on our
understanding of the holding in Ceramica. Therefore, the suggestion
that we are ``imputing a useless act to Congress'' is unfounded.
Section 753 is an important statutory provision which the
Department is committed to applying and, indeed, currently is applying
with respect to several outstanding countervailing duty
[[Page 41364]]
orders (i.e., Extruded Rubber Thread from Malaysia and Steel Wire Rope
from Thailand). However, it was not enacted into law until January 1,
1995. Therefore, consistent with the court's reasoning in Ceramica,
section 753 is not applicable to the Argentine orders under these
circumstances.
Comment 3: Petitioners maintain that revocation of the orders
against Argentina is contrary to the purpose of the unfair trade laws.
In particular, petitioners assert, it improperly and unnecessarily
harms them because the Department has not determined that the relevant
foreign producers are no longer being subsidized.
Department's Position: This comment reflects a criticism more
properly directed at the court's ruling in Ceramica, not the
Department's administration of the unfair trade laws as interpreted by
the judiciary. As we explain above, the Federal Circuit's decision in
Ceramica applies to the orders against Argentina, and requires the
Department to revoke these orders as of the date Argentina became a
``country under the Agreement.''
Comment 4: Petitioners argue that the instant changed circumstances
review is not applicable to entries that occurred before January 1,
1995 because the Department has already issued liquidation instructions
covering these entries. One year after entries are liquidated,
petitioners assert, they are ``deemed liquidated as a matter of law''
in accordance with 19 U.S.C. Sec. 1504(a). As such, these pre-1995
entries are ``no longer subject to the Commerce Department's
authority,'' and the Department has no authority to ``alter its
liquidation instructions.''
Edsim disagrees. First, it argues that the Department has not lost
jurisdiction over any of the subject entries. Therefore, Edsim asserts,
it is entirely proper for the Department to amend its previous
instructions to Customs. Second, Edsim claims that section 1504(a) does
not apply to the subject entries because their liquidation was
suspended pursuant to section 751(a) of the Act.
Department's Position: Edsim misconstrues both the language of
section 1504(a), and the interplay between this statutory provision and
19 CFR 355.22(g), the Department's regulation on automatic assessment.
When the Department does not receive a timely request for an
administrative review, it instructs Customs under the authority of 19
CFR 355.22(g) to assess countervailing duties on the entered
merchandise in question at rates equal to the cash deposit or bond
required on that merchandise at the time of entry or withdrawal from
warehouse for consumption. At that same time, because the statutory
assessment scheme is retroactive, the Department will also instruct
Customs to continue to suspend liquidation of covered merchandise which
enters during the following period of review and to collect the cash
deposit from importer(s) on all such merchandise.
Thus, merchandise entered into the United States covered by a
countervailing duty order is only subject to suspension of liquidation
until the time within which to request an administrative review has
passed. Thereafter, entered merchandise covered by the review period is
subject to automatic liquidation under 19 CFR 355.22(g) if no review
has been requested. Stated differently, unless an interested party
requests an administrative review of entered merchandise covered by a
specific period of review, the suspension of liquidation will be
terminated, and the Department will instruct Customs to liquidate the
merchandise pursuant to the regulation on automatic assessment. Customs
is then required, as a matter of law under 19 U.S.C.
Sec. 1675(a)(3)(B), to liquidate in accordance with our instructions.
Consequently, liquidation with regard to countervailing duties will be
carried out by Customs where no timely request for an administrative
review has been made regarding merchandise subject to a countervailing
duty order entered during a specific period of review, and Customs
receives instructions to liquidate from the Department.
With regard to subject merchandise imported by Edsim, the
Department received no request for an administrative review after the
countervailing duty order on Leather from Argentina was issued.
Therefore, the Department was required under 19 CFR 355.22(g), after
each review period where no timely request for an administrative review
was received, to instruct Customs to assess countervailing duties on
the imports which were entered or withdrawn during each applicable
period of review. In turn, Customs, pursuant to 19 U.S.C.
Sec. 1675(a)(3)(B), is to liquidate within 90 days after the Department
sends liquidation instructions, and under section 1504(d), any entry
covered by the instructions not liquidated within six months will be
deemed liquidated at the rate of duty asserted at the time of entry.
In sum, the Department no longer has jurisdiction over liquidated
entries and cannot amend its liquidation instructions, as Edsim
requests. See, e.g., Zenith Radio Corp. v. United States, 710 F.2d 806
(Fed. Cir. 1983). For this reason, the Department expressly limited its
preliminary results to all unliquidated entries occurring on or after
September 20, 1991.
Instructions to U.S. Customs Service
We are instructing the U.S. Customs Service to terminate the
suspension of liquidation and liquidate all unliquidated entries of the
subject merchandise entered or withdrawn from warehouse for consumption
on or after September 20, 1991, without regard to countervailing
duties. We are also instructing the U.S. Customs Service to refund with
interest any estimated countervailing duties collected with respect to
those entries. We note that the requirements for a cash deposit of
estimated countervailing duties were previously terminated in
conjunction with the section 753 determination covering cold-rolled
steel.
This notice is published in accordance with section 751(b)(1) of
the Act (19 U.S.C. 1675(b)(1)) and 19 C.F.R. Sec. 355.22(h).
Dated: July 25, 1997.
Jeffrey P. Bialos,
Acting Assistant Secretary for Import Administration.
Appendix--Scope of the Reviews
I. OCTG From Argentina
Imports covered by this review include shipments of Argentine
OCTG. OCTG include hollow steel products of circular cross-section
intended for use in the drilling of oil or gas and oil well casing,
tubing and drill pipe or carbon or alloy steel, whether welded or
seamless, manufactured to either American Petroleum Institute or
proprietary specifications. The scope covers both finished and
unfinished OCTG. The products covered in this review are provided
for under item numbers of the Harmonized Tariff Schedule (HTS):
7304.20.20, 7304.20.40, 7304.20.50, 7304.20.60, 7304.20.80,
7304.39.00, 7304.51.50, 7304.20.70, 7304.59.60, 7304.59.80,
7304.90.70, 7305.20.40, 7305.20.60, 7305.20.80, 7305.31.40,
7305.31.60, 7305.39.10, 7305.39.50, 7305.90.10, 7305.90.50,
7306.20.20, 7306.20.30, 7306.20.40, 7306.20.60, 7306.20.80,
7306.30.50, 7306.50.50, 7306.60.70, 7306.90.10. The HTS subheadings
are provided for convenience and Customs purposes. The written
description remains dispositive.
II. Wool From Argentina
Imports covered by this review include shipments of Argentine
wool finer than 44s and not on the skin. These products are provided
for under HTS item numbers: 5101.11.60, 5101.19.60, 5101.21.40, and
5101.29.40. The HTS subheadings are provided for convenience and
Customs purposes. The written description remains dispositive.
[[Page 41365]]
III. Leather From Argentina
Imports covered by this review include shipments of Argentine
leather. The types of leather that are covered include bovine
(excluding upper and lining leather not exceeding 28 square feet,
buffalo leather, and upholstery leather), sheep (excluding vegetable
pretanned sheep and lambskin leather), swine, reptile (excluding
vegetable pretanned and not fancy reptile leather), patent leather,
calf and kip patent laminated, and metalized leather. Leather is an
animal skin that has been subjected to certain treatment to make it
serviceable and resistant to decomposition. It is used in the
footwear, clothing, furniture and other industries. The types of
leather included within the scope are currently classified under HTS
item numbers 4104.10.60, 4104.10.80, 4104.21.00, 4104.22.00,
4104.29.50, 4104.29.90, 4104.31.50, 4104.31.60, 4104.31.80,
4104.39.50, 4104.39.60, 4104.39.80, 4105.12.00, 4105.19.00,
4105.20.30, 4105.20.60, 4107.10.00, 4107.29.60, 4107.90.30,
4107.90.60, 4109.00.30, 4109.00.40, and 4109.00.70. The HTS
subheadings are provided for convenience and Customs purposes. The
written description remains dispositive.
IV. Cold-Rolled From Argentina
Imports covered by this review include shipments of Argentine
cold-rolled carbon steel flat products, whether or not corrugated or
crimped; whether or not painted or varnished and whether or not
pickled; not cut, not pressed, and not stamped to non-rectangular
shape; not coated or plated with metal; over 12 inches in width and
under 0.1875 inches in thickness whether or not in coils; as
currently provided for under the following item numbers of the HTS:
7209.11.00, 7209.12.00, 7209.13.00, 7209.14.00, 7209.21.00,
7209.22.00, 7209.23.00, 7209.24.00, 7209.31.00, 7209.32.00,
7209.33.00, 7209.34.00, 7209.41.00, 7209.42.00, 7209.43.00,
7209.44.00, 7209.90.00, 7210.70.00, 7211.30.50, 7211.41.70,
7211.49.50, 7211.90.00, 7212.40.50. The HTS item numbers are
provided for convenience and Customs purposes. The written
description remains dispositive.
[FR Doc. 97-20379 Filed 7-31-97; 8:45 am]
BILLING CODE 3510-DS-P