Bond St. v. United States

774 F.Supp.2d 1251

BOND STREET, LTD., Plaintiff,

v.UNITED STATES, Defendant,andGleason Industrial Products, Inc. and Precision Products, Inc., Defendant–Intervenors.

Slip Op. 11–37.Court No. 08–00049.

United States Court of International Trade.

April 12, 2011.

James Caffentzis (James Caffentzis), New York, NY, for Plaintiff.Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, DC, (Stephen C. Tosini and Joshua E. Kurland); Thomas M. Beline, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, Of Counsel, for Defendant.Crowell & Moring, LLP (Matthew P. Jaffe), Washington, DC, for Defendant–Intervenors.

OPINION

RIDGWAY, Judge:

Pending before the Court are the Final Results of Redetermination Pursuant to Court Remand, filed by the U.S. Department of Commerce pursuant to the decision in Bond Street I. See generally Final Results of Redetermination Pursuant to Court Remand: Hand Trucks and Certain Parts Thereof from the People's Republic of China (“Remand Results”); Bond Street, Ltd. v. United States, 33 CIT ––––, 637 F.Supp.2d 1343 (2009) (“ Bond Street I ”).

Bond Street I remanded to Commerce the agency's determination that the Stebco Portable Slide–Flat Cart (style no. 390009 CHR)—imported by Plaintiff Bond Street, Ltd., a New York importer of business and travel products—falls within the scope of the antidumping duty order on hand trucks from the People's Republic of China. See Bond Street I, 33 CIT at ––––, 637 F.Supp.2d at 1351–52; Hand Trucks and Certain Parts Thereof from the People's Republic of China: Scope Ruling on Stebco Portable Slide–Flat Cart Inv. No. A–570–891 (May 30, 2007) (Administrative Record (“A.R.”) Doc. No. 12) (“Scope Ruling”); ¹ Notice of Antidumping Duty Order: Hand Trucks and Certain Parts Thereof From the People's Republic of China, 69 Fed.Reg. 70,122 (Dec. 2, 2004) (“Antidumping Order”). In particular, Bond Street I ruled that Commerce's Scope Ruling could not be sustained because the agency had “failed to ... make a determination as to whether the toe plate of the Stebco cart can ‘slide [ ] under a load for purposes of lifting and/or moving the load,’ ” an operational/functional requirement set forth in the Antidumping Order, and the central focus of this litigation. See Bond Street I, 33 CIT at ––––, 637 F.Supp.2d at 1350 ( quoting, inter alia, Antidumping Order, 69 Fed.Reg. 70,122).

On remand, Commerce “found through testing [of] Bond Street's Stebco Cart that [the cart] is adept at sliding under a load for the purposes of lifting/moving that load. Additionally, once the projecting edge/toe plate is slid under a load, the projecting edge/toe plate remain[s] stable and there [is] no difficulty in lifting and moving the load.” See Remand Results at 4; see also id. at 1, 3–4, 9–10, 12. Commerce thus concluded that—in addition to possessing the four specific physical characteristics required by the Antidumping Order—the Stebco cart also has “the operational and functional ability to slide under a load for the purposes of lifting and/or moving that load.” See id. at 4; see also id. at 1–2, 10, 12. Commerce's Remand Results therefore reaffirmed the agency's earlier determination that the Stebco cart falls within the scope of the Antidumping Order. See Remand Results at 1–2, 9, 12.

Bond Street contends that “the tests conducted by [Commerce] do not provide a basis for ... find[ing] that the Stebco [cart] ... slide[s] under a load” within the meaning of the Antidumping Order, and that the agency failed to properly consider certain tests conducted by Bond Street and the agency itself. See Plaintiff's Comments on Final Results of Redetermination Pursuant to Court Remand (“Pl.'s Brief”) at 2, 3. In addition, Bond Street critiques the adequacy of Commerce's explanation of its remand determination, and raises various other procedural objections. See, e.g., id. at 3–4. Bond Street concludes that the Remand Results are not supported by substantial evidence in the record, and are otherwise not in accordance with law. See generally id.; Plaintiff's Reply to Defendant's Response to Bond Street's Comments Upon Commerce's Remand Results (“Pl.'s Reply Brief”). Bond Street argues that the Court therefore should “reject Commerce's remand results and either remand the matter once again ..., or alternatively enter judgment for Bond Street based upon the facts of record.” See Pl.'s Reply Brief at 6.

In contrast, the Government and the Defendant–Intervenors—Gleason Industrial Products, Inc. and Precision Products, Inc. (collectively, “Domestic Manufacturers”)—contend that the Remand Results comply fully with the instructions in Bond Street I, and are both supported by substantial evidence and otherwise in accordance with law. The Government and the Domestic Manufacturers therefore argue that Commerce's remand determination should be sustained in all respects. See generally Comments on Final Results of Redetermination Pursuant to Court Remand (“Def.-Ints.' Brief”); Defendant's Response to Bond Street's Comments Upon Commerce's Remand Results (“Def.'s Brief”).

Jurisdiction lies under 28 U.S.C. § 1581(c) (2000). For the reasons set forth below, the Remand Results, including Commerce's remand determination concluding that the Stebco cart is within the scope of the Antidumping Order, must be sustained.

I. Background

In December 2004, the Department of Commerce published an antidumping duty order covering hand trucks and certain parts thereof from the People's Republic of China. See Notice of Antidumping Duty Order: Hand Trucks and Certain Parts Thereof From the People's Republic of China, 69 Fed.Reg. 70,122 (Dec. 2, 2004) (“Antidumping Order”). The first section of the Antidumping Order (captioned “Scope of Order”) expressly defines the covered merchandise, identifying four specific required physical characteristics, in addition to the operational/functional requirement that is at issue in this action:

A complete or fully assembled hand truck is a hand-propelled barrow consisting of [1] a vertically disposed frame having [2] a handle or more than one handle at or near the upper section of the vertical frame; [3] at least two wheels at or near the lower section of the vertical frame; and [4] a horizontal projecting edge or edges, or toe plate, perpendicular or angled to the vertical frame, at or near the lower section of the vertical frame. The projecting edge or edges, or toe plate, slides under a load for purposes of lifting and/or moving the load.

.... That the vertical frame, handling area, wheels, projecting edges or other parts of the hand truck can be collapsed or folded is not a basis for exclusion of the hand truck from the scope of the [Antidumping Order].... Finally, that the hand truck may exhibit physical characteristics in addition to the vertical frame, the handling area, the projecting edges or toe plate, and the two wheels at or near the lower section of the vertical frame, is not a basis for exclusion of the hand truck from the scope of the [Antidumping Order].

Examples of names commonly used to reference hand trucks are hand truck, convertible hand truck, appliance hand truck, cylinder hand truck, bag truck, dolly, or hand trolley....

Excluded from the scope [of the Antidumping Order] are small two-wheel or four-wheel utility carts specifically designed for carrying loads like personal bags or luggage in which the frame is made from telescoping tubular material measuring less than 5/8 inch in diameter[.]

Antidumping Order, 69 Fed.Reg. at 70,122 (“Scope of Order” section) (emphasis added).

A. Commerce's Scope Ruling on the Stebco Cart

After the Antidumping Order issued, Bond Street sought a ruling from Commerce that the Stebco cart is beyond the scope of the Order, and is therefore not subject to antidumping duties under that Order. See Bond Street Request for Scope Ruling (A.R. Doc. No. 1). Bond Street argued that the Stebco cart is not a “hand truck” within the meaning of the Antidumping Order, but—rather—a collapsible “portable luggage cart,” designed for “personal uses such as carrying luggage, carrying personal bags, or a salesman storing the cart in his car to carry in many samples[ ] or sample cases together at one time to avoid multiple trips.” See id. at 2, 4; see also id. at 3; A.R. Doc. No. 4 at 3. According to Bond Street, several physical features of the Stebco cart— i.e., its collapsible toe plate, the placement of a bungee cord hook, and the absence of a kick plate—make it impossible for the cart to “slide[ ] under” a load for purposes of lifting and/or moving the load, as required by the express terms of the Antidumping Order. See A.R. Doc. No. 1 at 3. Bond Street asserted that those particular features of the Stebco cart mean that—as a practical matter—“items must be lifted onto the [toe] plate for purposes of lifting and/or moving [them].” Id. at 2 (emphasis added); see also id. at 4; A.R. Doc. No. 4 at 4; A.R. Doc. No. 11 at 2–3.

Commerce analyzed Bond Street's Request for Scope Ruling under the framework of 19 C.F.R. § 351.225(k)(1) (2006), finding “the descriptions of the merchandise” to be dispositive. See Hand Trucks and Certain Parts Thereof from the People's Republic of China: Scope Ruling on Stebco Portable Slide–Flat Cart Inv. No. A–570–891 (May 30, 2007) (A.R. Doc. No. 12) at 8 (“Scope Ruling”).² In its Scope Ruling, Commerce determined that the Stebco cart incorporates all four of the requisite physical characteristics of a hand truck specified in the scope language of the Antidumping Order—(1) a vertical frame, (2) at least one handle, (3) two or more wheels, and (4) a projecting edge or toe plate. Id. at 8. Commerce also reviewed each of the three physical features of the Stebco cart that Bond Street highlighted— i.e., the collapsible toe plate, the bungee cord...