J. L. Smith v. The Department of Agriculture of the State of Georgia, Defendants
630 F.2d 1081
5th Cir.
1981
Check Treatment

*1 completed involved had Agent the case when he referred examination his investiga for further Special Agent Wil Agent present tion.” refer he made his that when

liams testified Division, Investigation ral to the Criminal into investigation completed his

he had not the 1975 and 1976 liability for

the Hortons’ uncontroverted In view of these years.

tax summons herein

facts, we conclude that the ongoing investigation part of an audit Agent Williams’

had commenced 1977, that the audit August of July the matter completed when

had not been Agent Rogers of Special

was referred to that, Division, and Investigation

Criminal

therefore, inspection” provi the “additional 7605(b) inapplicable.13

sions of § court re- of the district judgment

versed, remanded with in- and the case is grant enforcement of IRS

structions

summons. AND REMANDED.

REVERSED SMITH, Plaintiff-Appellee,

J. L.

v.

The DEPARTMENT OF AGRICULTURE al.,

OF the STATE OF GEORGIA et

Defendants-Appellants.

No. 78-3310.

United States Court of Appeals,

Fifth Circuit. 19,

Nov.

Rehearing Rehearing En Banc 2, 1981.

Denied Jan. Bolton, Gen., Atty. Arthur K. Carl C.

Jones, Gen., Atlanta, Ga., for Atty. Asst. defendants-appellants. of fact.” of Internal Reve court noted that the established IRS trier Commissioner “when, Gordon, procedure requires during his in- n. nue v. Agent vestigation, King discovers an indi- a Revenue v. 20 L.Ed. 448 See Com fraud, Revenue, cation of he . .. cease his examination missioner of Internal 458 F.2d Intelligence case to Division and refer the (6th 1972); v. R. & Cir. Texas Co. O’Brien Investigation known as the Di- ‘Criminal Co., [now (1st Cir.1957); Sibicc 242 F.2d 542 F.2d at 40. Co., vision’].” Mac, Milius Shoe 145 F.2d Del Inc. v. (8th 1944); Aetna Life Ins. Cir. Co. disputed 13. “Since the record leaves no issue of (8th 1943). Meyn, F.2d Cir. respect question, fact with to this we find proper to decide here without reference *2 Land, more desirable locations from which

Hatcher, Stubbs, Hollis Roths- much & comparison to sell. In with the drive- child, Bradley, Jerry Y. A. Buchan- Richard Ga., shed, af an, Columbus, plaintiff-appellee. through for the elevated shed areas protection produce for from

ford better rain, display superior produce sun and location, customer readily more available accessibility parking, and better RANDALL, Before Circuit GEE produce. their farmers to load and unload LYNNE,* Judge. District Judges, and ¶ 4, App. of Fact 47. Findings J. L. is a resi- Plaintiff-appellee Smith LYNNE, Judge: District Alabama, is en- City, dent of Phenix challenge involves a to the appeal This gaged farming operations in Russell and regulation rule constitutionality of a Counties, Lee Alabama. has sold his Smith of the Department Agriculture State produce at Farmers Market the Columbus Georgia, whereby non-residents of Geor- approximately twenty period over a assigned to inferior sales locations assigned years. space Until he was Farmers Market Georgia at the State regard to the fact that the market without Columbus, (“Columbus Georgia Farmers a non-resident of the of Geor- he is State Market”), during periods crowded condi- gia. tions. The District Court found 1973, however, Georgia Depart Equal rule violated both the Protection Agriculture ment of instructed its Colum Clause and the Commerce Clause space assign manager bus Market United Constitution. We affirm States ments at the market were to be made on ground the rule solely violates residence, Const., I, preference the basis of state the Commerce Art. Ac Georgia. cl. to residents of the 3. State § could

cordingly, at times when all farmers not be accommodated in the elevated shed I. area, rele non-resident farmers were to be The Columbus Farmers Market is owned gated drive-through to the shed. The sole partially financed1 assignment basis for the of Alabama farm Georgia, operated by Depart ers to the less desirable shed the fact that ment Agriculture. Individuals who wish they are non-residents of the State of Geor to sell produce their at such market must 5,¶ gia. Findings App. of Fact 47. Most acquire Georgia Depart a license from the significantly, purpose the admitted Agriculture ment of and rent therein. give Georgia rule was to separate market consists of three sell Georgia, residents over non-residents of ing growers areas from which individual thereby providing competitive advantage sell their produce general public. farmers.2 selling Two of the locations are “elevated areas, shed” and the third desig During selling has been season of Smith “drive-through” nated the shed. Based was told to move his sales from an record, upon substantial evidence in the elevated drive-through shed to the shed. refused, trial court found that the elevated sheds are he When he was told that his * Judge District of the Northern District of Ala- 2. “Witnesses for the Defendants testified that bama, sitting by designation. purpose assignment for the method of give preference residents over Findings residents of other states.” years of Fact ' In the fiscal 1976-77 and Moreover, App., appellants virtually have percentage underlying purpose conceded the of the rule operating expenses Farmers Market’s arguing placed upon that “the burden interstate Georgia ranged were funded the State of promote industry commerce to an in state . . . approximately See Rec- 39.4% 45.4%. fosters a ...” Brief for interest ord at 56 58. Appellants (emphasis supplied). S.Ct., price.” or revoca- subject suspension license was “Nothing in the Court concluded that: to move. for failure tion animating the Commerce Clause purposes 5, 1978, seeking on July filed suit Smith State, congres- the absence prohibits a relief and claim- injunctive declaratory action, participating the mar- sional giving preference to ing that the exercising right to favor its ket and *3 the violated Commerce Georgia residents Id., 810, at 96 own citizens over others.” and the Equal Protection Clause the S.Ct., omitted). (footnotes at 2498 After an Privilege and Immunities Clause. hearing, the court en- evidentiary district Stake, supra, - U.S. -, In Reeves v. the rule viola- judgment declaring tered 244, 2271, Supreme the 65 L.Ed.2d and the of both the Commerce Clause tive that, its belief “The basic Court reiterated permanently and Equal Protection Clause be Scrap in Alexandria distinction drawn the enjoining regula- enforcement of the participants as market tween States regulation we hold the tion. Because that regulators good market makes States as Clause, it is unneces- violates the Commerce U.S., at -, law.” sense sound - the of the other sary to address merits S.Ct., 2277. The Court then held 100 at by appellees. grounds advanced Dakota, in a time of that the South State ce shortage, may confine the sale the

II. a state-owned produces it at ment which this ap- issue The threshold involved of South Dakota. plant, solely to residents the regulation the Geor- peal whether in Reeves the Court’s decision basis of Agriculture subject Department of acting the was as a again that State scrutiny the Clause at all. under Commerce aas market rather than participant States Two recent decisions the United regulator. Supreme indicate that the resolution Court depends upon

of this issue whether the de- -B- ca- acting proprietary fendants were in a role at the Columbus Farmers Georgia’s regulatory hand in a pacity on the one or as a hybrid be Stake, Market can described other. Reeves v. capacity on the See - owned, Admittedly, op- the market is 2271, one. 100 65 L.Ed.2d Scrap partially financed the (1980); Hughes Alexandria erated and 244 hand, 794, it is 2488, signifi- the other Corp., Georgia. 96 49 of On produce the (1976). appellants neither L.Ed.2d 220 cant market, engage nor at the goods to be sold -A- selling of those buying or actual essence, goods. In the State Scrap, Supreme Alexandria marketplace for simply a suitable provided rejected Virginia scrap processor’s Court privately owned buying selling challenge pay Maryland program activity which was goods. It is this bounty Maryland-titled junk car every distinguished by the in Alexandria Court scrap, a 1974 amend despite converted into S.Ct., U.S., at at 96 Scrap, 426 imposed ment to which more legislation - U.S., at - n. 2495-96, and on out- onerous documentation standards S.Ct., Accordingly, at 2275 n. in-state processors. of-state than an actu- cannot be deemed Scrap did not Court held that Alexandria the Columbus participant al market at involve “the kind of action with which the Rather, concerned,” U.S., role Farmers Market. essential Commerce Clause such, that, regulator. ap- As S.Ct., is that of market explained at governing “Maryland sought prohibit pellants’ had not rules hulks, operation of Farmers regulate flow of condition Instead, subject scrutiny Market under may under occur. it has up entered the market itself to bid Commerce Clause. into S.Ct., III. also Pike See Church, Inc., 137, S.Ct., v. Bruce Having decided this case in the first Under activity the kind of to which the volves test, step Hughes is undeniable applies, necessary it is regulation issue discriminates regulation whether the issue determine against interstate commerce on its face impermissible an imposes burden inter giving Georgia farmers a over The purpose underlying state commerce. farmers solely out-of-state on the basis of appro Clause most Commerce has been Accordingly, burden residence. stated Justice Jackson H. P. priately appellants to justify falls on Mond, v. Du Sons Hood & flowing both in terms local benefits (1949): 93 L.Ed. 865 the unavailability from it and of nondis- system, fostered the Commerce Our criminatory alternatives ade- would Clause, is that every every farmer quately preserve those local interests. *4 encouraged craftsman shall be to Oklahoma, U.S., 336, Hughes v. 441 at 99 by certainty that he will have free 1736; Apple at Hunt v. Washington S.Ct. nation, every access market in the that Commission, 333, 353, Advertising 432 U.S. embargoes no home will withhold his ex- 2434, 2446, 97 (1977); S.Ct. 53 L.Ed.2d 383 ports, and no foreign state will cus- Shipbuilding Corp. Service Machine & v. toms duties or exclude them. Edwards, 70, (5th 1980). 617 F.2d 73 Cir. Likewise, every look may consumer to the case Under circumstances of the sub competition free from every producing judice, appellants’ virtually burden insur is protect area nation to him from mountable. The of the purpose avowed ' exploitation by any. Such was vision regulation give is to Geor Founders; such has been the doc- gia farmers, farmers over nonresident given trine of this Court which has it thereby promoting industry.3 an in-state reality. precisely It parochial legisla this subject tion which has been closest Id., 539, S.Ct., 69 at 665. scrutiny the courts: Traditional analysis opinions through of the Court follows the three-pronged inquiry outlined years have reflected an alertness to the Oklahoma, the Court Hughes v. 441 protec evils of “economic isolation” and 322, 99 S.Ct. 60 L.Ed.2d 250 tionism, recogniz while at the same time (1979): ing that incidental burdens on interstate general Under that inquire rule we must may commerce be unavoidable when a (1) whether the challenged regu- statute legislates to safeguard the health lates evenhandedly with only “incidental” Thus, safety people. of its where commerce, effects on interstate or dis- simple protectionism economic is effected against criminates interstate commerce legislation, a virtually per state se rule effect; either on its practical face or in See, invalidity g., been erected. e. (2) whether the legiti- statute serves a Mond, Hood & Sons v. Du supra; Toomer so, purpose; and, (3) mate local if wheth- Witsell, 385, 403-406, v. 334 U.S. S.Ct. [68 er alternative promote means could this 1156, 1165-1167, 1460]; 92 L.Ed. Baldwin purpose local as well without discrimina- v. F. Seelig, G. A. 55 [294 against ting interstate commerce. 1032], v. supra; Kuy- L.Ed. Buck 2, supra. might argued City 3. See footnote Philadelphia, be explained: It the Court “But purpose Jersey’s that the actual purpose, whatever New ultimate simply may accomplished deal with by discriminating the lack be available However, against coming Farmers Market. articles of commerce from out- protectionism legisla- reason, “the evil can reside in state side the unless there is some legislative City tive means as well apart origin, as ends.” to treat them different- Philadelphia 617, 626, Jersey, 626-27, S.Ct., ly.” New 437 U.S. 2531, 2537, (1978). 98 S.Ct. 57 L.Ed.2d 475 In growers any basis kendall, 315-316, and non-resident [45 Accordingly, 324, 325-326, L.Ed. than their residence. other 623].... appears squarely to fall within this case therefore, must be inquiry, The crucial ” language se of Phil “virtually per City ch. 363 determining whether directed S.Ct., U.S., at 2536.5 basically protection- adelphia, law at issue] [the fairly be measure, whether can or ist reasons, we foregoing conclude For directed to viewed a law correctly that the district court found concerns, inter- upon with effects local violates the Com- regulation at issue that are incidental. commerce enjoined the properly merce Jersey, v. New City Philadelphia thereof. enforcement continued 2531, 2535-2536, AFFIRMED. Lewis recently, More Inc., - U.S. Managers, v. BT Investment GEE, specially concurring: Judge, Circuit (1980), 64 L.Ed.2d challenge the Court was faced by my colleagues opinions The admirable prohibited an out-of- Florida statute opposing close each of the put case owning holding company bank Reading I. ei- better than could positions controlling within Florida a business alone, my is to impulse ther concur. Since find advisory services. sells investment so, I briefly write set out unconstitutional, ing the statute the Court primitive reasoning somewhat course general recognized principle “the again holding me join prefer- moves *5 prohibits a State the Commerce Clause Georgia producers inval- here accorded ence power protect to using regulatory its id. competition.” outside its own citizens from dissenting view part company I with at -, S.Ct., at 2019.4 100 in its with a third sen early, statement City Philadelphia teaching The clear prohibited or tence: “the State not] [has protectionism Lewis is and that economic flow across its borders.” limited the of trade that purpose the kind local legitimate so, I not disa that this were could Granted on justify discriminatory would a burden Judge with much what follows in gree light admit- interstate commerce. I think dissent.1 But the flow Randall’s to purpose regulation ted at issue here, in an impermissi with interfered by giving prefer- in-state business promote though very is a close way, question ble to farm- space assignments Georgia ential one. ers, inescapable that it is the conclusion is certainly that the State of Geor- It is true protectionist Appel- basically a measure. entry directly has not acted forbid convincing provide any lants have failed to produce. It has done no more Alabama preference given justification for Indeed, foreign producers some- disadvantage than Georgia growers. there is obvious- with domestic ly competition no reason to differentiate between Geor- what also, regulation Shipbuilding Having concluded that does 4. See Service Machine & 1980) Edwards, legitimate purpose, Corp. (5th a it is unnec- v. 617 F.2d 70 Cir. not serve local essary (holding registration burden of the a workers’ ordi- balance the Louisiana against Clause): putative interstate commerce nance violative of the Commerce purpose benefits. “If a local local type of discrimination that has been found, question becomes de- then one of Supreme analysis focus of Court’s occurs Church, Inc., gree.” Pike v. Bruce distinguishes when a law be state or local 844, 847, L.Ed.2d S.Ct. originating tween commerce within a supplied). (emphasis originating outside the state. commerce the form Most often this discrimination takes merely imply because it does I do not protectionism, of economic and the Court invalid, necessarily inhibit that flow it is legis consistently parochial held this requires See, that it does fur- g., the circumstance constitutionally lation e. invalid. inquiry. City Jersey, ther Philadelphia v. New (1978) . . . 57 L.Ed.2d 475 such, which it is carried on. As ones for the its activi- end relegating them to the of the line in analagous ties seem me more to those of moreover, this, assignments-and sale-booth regulator proprietor. to those of a than that, facility Georgia taxpayers, in a but for I conclude that this case is one about blush, may would not exist. At first produce, sale booths. The case not about burden, slight implicit seem a but in the therefore, me, undistinguishable seems to below is that it findings of the court is not in which principle from one the state denies slight significant.2 but producers princi- to out-of-state the use of Since this is so burden is not de pal back highways, relegating them to minimis, to see I am unable how the case roads, or the use of a confines state-built differs in one in which principle from for- coliseum or theatre entertainers eign producers use of the were denied facili- residing Georgia. The state need not act ty entirely. existing to aid markets the construction so, being being This the case there- facilities, does, physical but where one in properly fore seen as which some the concept seems to me that of a common being severely-to market is interfered by the market created advantagé producers of domestic requires foreign and domestic marke- foreign detriment inquiry ones-the indifferently. teers be treated I therefore answering the question: comes down to join majority opinion. market in what ? If properly the market is to be viewed as RANDALL, Judge, dissenting: Circuit produce, one in sale booths for then Georgia Supreme Because I believe that occupies proprietary capacity pro as the in Hughes Court’s decisions v. Alexandria so, ducer And if it does booths. then Scrap Corp., 426 Scrap under Reeves and Alexandria de (1976), Inc. Court, Supreme cisions of the may - Stake, a proprietor in its pretty deal booths (1980), L.Ed.2d 244 dictate a con- result much as it if likes.3 But the relevant mar trary opin- majority that reached ket be vegetables, seen as one then Geor *6 case, respectfully ion in this I dissent. is producer not their or seller and hence pointed As at the district court below out does not occupy proprietary position a as to Instead, evidentiary hearing the close of the on the them. it is one who has focussed case, and merits “we in existing by keep localized an market con of this need to structing the physical selling facility talking in mind what we about.” Unlike judge coming 2. The a fact found as the drive into the State. to No effort through plaintiff prevent doing shed to which Smith was rele- of another citizens State from gated by Georgia preference the any- “is a less got de- business in We the State. have not produce sirable location thing to sell like As I said it that. has been made than the elevated and sheds” concluded that appear from some sources that is what irreparably damaged Smith would be unless the obviously it’s all about but not what injunction issued. just dealing it’s all about.... We are with way regulate the a State decides to use of the — Reeves, Stake, U.S. -, In Inc. v. supported the tax Farmers That’s Market. (1980), S.Ct. 65 L.Ed.2d 244 the state doing. all we are produced commodity, the basic cement. In course, got everything Of it’s to where Hughes Scrap Corp., v. Alexandria days proportions. these rises to constitutional (1976), 96 S.Ct. the any po- Doesn’t make difference whether partly state had enhanced-and therefore creat tomatoes, everything tatoes or rises to consti- by pay ed a local market in automobile hulks But, is, proportions. saying all tutional I’m ing bounty a on them. keep talking in we need to mind what we are about. 1. The district remarks at the court’s close of Transcript hearing repeating: at the bear I will hereinafter use the word “market” to Well, noted, previously as I what we have only used refer to the sort of abstract construct any part involved here is effort on not the of operation economists to describe the prevent one State to citizens of another State produc- spaces satisfy choice Clause typical the more Commerce ers. regula involve a State’s this case does industry; nor has private

tion of entire an only The considers brief- majority opinion or limited the flow of prohibited State view, my disposi- in ly the threshold-and keep We in its borders. must trade across this is “the tive-question of whether kind dealing regula are not with mind that we which the [by action Com- a-state] Hughes in the abstract economic tion of a “market” v. Al- merce Clause is concerned.” supra, 426 at sought regulate Scrap Corp., exandria U.S. Georgia has not sense: opinion majority pro market for the sale of the interstate operation role in describes State’s Rather, “regula whatever generally. duce “hybrid,” as Market Farmers Columbus only case relates tion” is involved in this marketplace first owned noting as econom is as concrete an something that operated a net loss State. at estate, piece real ic market is abstract-a that because the majority But the concludes largely expense at the operated owned and offers commercial service rather State revenues, which, for a tax State’s buying in the participating than actually fee, private buyers sellers offers is acting selling goods, of a produce physical marketplace farm rather than a primarily “regulator” chal particular type quality. market. “participant” in the even lenged regulate do not I cannot distinction find this Su- physical marketplaces at allocation of major- preme Court cited precedents instead reach those generally, but activity that was ity opinion. The type by the operated owned and State.2 Supreme Court in Al- distinguished by the Rather, regulations challenged 805-06, 96 at Scrap, exandria more than lawsuit amount to no selective - at and in dealing in its leas by the State commercial n. involved at- states’ ing spaces the market the choicest prevent tempts privately owned articles place operated the State. owned being shipped of trade from sold was years, For when this service not in such traditional types interstate commerce-the demand, need great there was no to enforce As of Commerce Clause cases. the Su- allocating choicest any regulation in preme describing Court itself noted “first-come, spaces than a first- other distinguishing Alexandria cases now, changes because served” rule. But these Scrap, thread in cases common “[t]he produce, market for there economic with the that the interfered natural spaces in enough particu are not choice this functioning the interstate either go physical marketplace lar around. through burdensome through prohibition or words, other the demand 806, 96 regulation.” *7 prices marketplace space at these has sur added). (emphasis I think that the passed happened as in the ce supply, the has how the majority failed to demonstrate - U.S. at -, Reeves, ment in industry the line of cases case bar fits within Indeed, even Scrap 100 S.Ct. at 2275. when Geor- distinguished in Alexandria preferred to producers being are than controlled Al- residents rather states, enough Scrap are exandria and Reeves themselves. there not other aggregate supply hibition of state sellers at state- on out of forces and demand the (e. g„ though requires marketplaces; good the State sales or service the interstate owned of a comprising produce; all market sales of farm in -state and out state sell- a license ers, both or, charge the market for commercial rental for instance does fee neither Georgia). “marketplace” license; I will use the word no distinctions the the State makes physical property any quality where individual among describe the the of their based on sellers (e. g., goods place requires sales of take produce; entry of all fee it and the Market). State Farmers keyed producers each to the size of seller’s is truck, regard whether the seller is without they regulations, 2. Even limited as these or elsewhere. scope, significant evenhanded- demonstrate complete pro- ness: has not issued a the State majority Equal states that the the Protection My The State’s “es Clause. conclu regulator.” sential role is that of market sion regarding the Commerce how Supra If majority the ever, largely dictates the outcome of the regulating means that equal protection analysis. guarantee portion of the interstate equal protection under the United States abstract, (in the economic sense of that Constitution is not a source of substantive word) goes Georgia’s liberties, on within rights bound right or but is rather a to be aries, I think that the facts do not sup free from invidious discrimination in statu port majority that assertion. If the means tory governmental classifications and other only activity. statutory instead essential Where the classification State’s regulator physical complained impinge right role is- that of of does not marketplace, Constitution, I liberty protected by fail to see how that takes this case out validity of the rationale of Alexandria of the classification must be sus Scrap case, and Reeves.3 In this the State tained unless the classification rests on grounds wholly has entered into the economic irrelevant to the achieve provision physical market for the any legitimate mar ment governmental objec ketplaces. See, It regulate McRae, - U.S. no more seeks to tive. g., e. Harris v. -, -, market for marketplace space 2671, 2691, than it does rather, produce; the market for farm (1980); it is a 784 Maryland, McGowan v. participant 420, 425-26, marketplace the market for space. It is selling a service rather than a L.Ed.2d 393 I Since would hold that good. loss, It does so at a net and that loss Commerce Clause is violated up through made tax revenues. challenged regulations For this only reason, part of its proprietary question role in whether the bears a regulating operations, its own relationship legitimate rational chosen to selectively allocate its commercial goal. Supreme reject- As the Court said in service, awarding spaces the choicest ing equal protection to its plain- claim of the citizens, indirectly who bear the deficits in tiff in Scrap, Alexandria operation marketplace through established, however, is well that a [i]t their tax dollars. This should end Com statutory classification impinging upon merce analysis Clause of the State’s actions: interest, no fundamental and especially “ ‘Nothing in purposes animating matters, one dealing with economic State, prohibits need not be drawn so as preci- to fit with congressional action, absence from par legitimate sion the purposes animating it. ticipating in the market and exercising might That have furthered its [the State] ” right to favor its own citizens over others.’ underlying purpose artfully, more more Reeves, supra, - U.S. at -,100 S.Ct. directly, completely, or more does not at 2277 (quoting Scrap, Alexandria warrant a conclusion that the method it 2498). Following S.Ct. at Reeves chose is unconstitutional. and Alexandria Scrap, I would hold that the (citations U.S. at challenged regulation does not offend the omitted). Georgia pro- for Commerce Clause. relationship ducers bears a rational Because I would overturn the goal district tailoring its state- court’s Commerce holding, Clause I must participation subsidized in the market *8 continue to a brief analysis of the district marketplace space directly most to benefit ground relief, court’s alternate granting for taxpayers. Equal That is all the Pro- Surely regula- stopped goods 3. crossing State of South Dakota had from even state bor- governing operations according tions of its state- ders. Yet that did not plant, regulating owned cement and the incidental effect mean that South Dakota was inter- regulations upon commerce, of those interstate commerce or the market for concrete. Rather, acting primarily was much more drastic than in since South Dakota was as a effectively participant-a goods. the South Dakota seller of requires situation. tection Clause I would id. at

See challenged regula- hold that

therefore equal protection. deny does

tion Smith reasons, I re- foregoing

For would of the district court holdings

verse both judge apologies district

below. With urging while that he stealing prose

for his reversed, and tomatoes do potatoes

be these proportions.

not rise to constitutional BROTHERS,

TRINGALI

Plaintiff-Appellee, America,

UNITED STATES

Defendant-Appellant.

No. 78-3831. Appeals,

United Court States

Fifth Circuit.

Unit A

Nov. Lewis, Shipping Admiralty A. &

James C., Sec., Justice, Dept, Washington, D. defendant-appellant. Fendler, Lewis, Donald Liskow & S. Gene Orleans, La., for Abaunza, plain- R. New tiff-appellee.