637 F.Supp.2d 1343 (CIT 2009), 08-00049, Bond Street, Ltd. v. United States

Docket Nº:Court 08-00049.
Citation:637 F.Supp.2d 1343
Opinion Judge:RIDGWAY, Judge.
Party Name:BOND STREET, LTD., Plaintiff, v. UNITED STATES, Defendant, and Gleason Industrial Products, Inc. and Precision Products, Inc., Defendant-Intervenors. Slip Op. 09-95.
Attorney:Fitch, King and Caffentzis (James Caffentzis), Washington, DC, 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 (Stephen C. Tosini and Courtney...
Case Date:September 08, 2009
Court:Court of International Trade
 
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Page 1343

637 F.Supp.2d 1343 (CIT 2009)

BOND STREET, LTD., Plaintiff,

v.

UNITED STATES, Defendant,

and

Gleason Industrial Products, Inc. and Precision Products, Inc., Defendant-Intervenors.

Slip Op. 09-95.

Court No. 08-00049.

United States Court of International Trade.

September 8, 2009

Page 1344

Fitch, King and Caffentzis (James Caffentzis), Washington, DC, 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 (Stephen C. Tosini and Courtney E. Sheehan); Irene H. Chen, 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.

In this action, Plaintiff Bond Street, Ltd.-a New York importer of business and travel products-contests the U.S. Department of Commerce's determination that Bond Street's Stebco Portable Slide-Flat Cart (style no. 390009 CHR) (" Stebco cart" ) is within the scope of the antidumping duty order on hand trucks from the People's Republic of China (" PRC" ). 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) (" Scope Ruling" ).

Pending before the Court is Plaintiff's Motion for Judgment on the Agency Record, in which Bond Street urges that Commerce's Scope Ruling be vacated. Bond Street emphasizes that the antidumping order at issue requires that the projecting edge or toe plate of subject merchandise " slide[ ] under a load for purposes of lifting and/or moving the load," and asserts that its Stebco cart is not capable of sliding under a load in such a manner. Bond Street contends that Commerce therefore should have reached a negative scope determination. See generally Memorandum in Support of Bond Street Ltd.'s Motion for Judgment on the Agency Record (" Pl.'s Brief" ); Plaintiff, Bond Street Ltd.'s Reply to Defendant and Defendant-Intervenors' Responses (" Pl.'s Reply Brief" ).

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Bond Street's motion is opposed by the Government and by Gleason Industrial Products, Inc., and Precision Products, Inc. (collectively, " Domestic Manufacturers" ), who maintain that Commerce's Scope Ruling is supported by substantial evidence and otherwise in accordance with law, and thus should be sustained. See generally Response to Bond Street's Motion for Judgment Upon the Administrative Record (" Def.'s Brief" ); Defendant-Intervenors' Memorandum in Opposition to Bond Street's Motion for Judgment Upon the Agency Record (" Def.-Ints.' Brief" ).

Jurisdiction lies under 28 U.S.C. § 1581(c) (2000).1 For the reasons set forth below, Bond Street's Motion for Judgment on the Agency Record is granted, and Commerce's Scope Ruling is remanded for reconsideration.

I. Background

In December 2004, the Department of Commerce published an antidumping duty order on hand trucks and certain parts thereof from the PRC. 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 Antidumping Order expressly defines the covered merchandise, both in terms of specific physical characteristics and in terms of functionality:

A complete or fully assembled hand truck is a hand-propelled barrow consisting of a vertically disposed frame having a handle or more than one handle at or near the upper section of the vertical frame; at least two wheels at or near the lower section of the vertical frame; and 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 [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 [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. They are typically imported under heading 8716.80.50.10 of the Harmonized Tariff Schedule of the United States (" HTSUS" ), although they may also be imported under heading 8716.80.50.90.... Although the HTSUS subheadings are provided for convenience and customs purposes, the Department's written description of the scope is dispositive.

Excluded from the scope 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 (emphasis added).

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After the Antidumping Order issued, Bond Street sought a ruling from Commerce that the Stebco cart is beyond the scope of the Order, and therefore not subject to antidumping duties under that Order. See Bond Street Request for Scope Ruling (Dec. 6, 2006) (" Request for Scope Ruling" ). Bond Street contends that the Stebco cart is not a " hand truck" within the meaning of the Antidumping Order, but-rather-a " 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, 4.2 Bond Street's Request for Scope Ruling highlighted certain physical features of the Stebco cart that, according to Bond Street, prevent a user from " slid[ing] [the] cart under a load for purposes of lifting and/or moving the load," as required by the express terms of the Antidumping Order. See id. at 3. Bond Street maintains 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).3

Specifically, Bond Street pointed to " the angled design of [the] toe plate combined with the [collapsing] structure of the plate and the lack of a kick plate," asserting that those features " make it virtually impossible to slide [the Stebco] cart under a load for purposes of lifting and/or moving a load, a necessary function of any hand truck." See Request for Scope Ruling at 3. Bond Street explained that the collapsible toe plate " is specifically designed to enable the [cart's] wheels to fold flat, for the [cart] to have more portability, for easy storage in a car trunk and behind a home/office door, and for use when traveling." Id. at 2. But the collapsibility feature also prevents the Stebco cart's toe plate from " slid[ing] under" a load.

In addition to the angled design and collapsibility of the toe plate, as well as the absence of a kick plate, Bond Street also pointed to a hook located on the rear of the cart (approximately 8 1/2 inches from the ground) that is used to secure an elastic bungee cord (the other end of which is attached to the front of the toe plate), after the bungee cord has been pulled over the bags or other items on the cart. See Request for Scope Ruling at 2-3 (describing location, use, and purpose of bungee cord and hook); Bond Street Reply Comments (Feb. 12, 2007) at 2 (explaining that hook " serv[es] as the anchor for securing luggage

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and personal bags" on cart).4 Bond Street emphasized that the purpose of placing the hook so low on the back of the cart is to avoid damage to the cart by " prevent[ing] [a user] from pushing the cart forward with his foot to obtain leverage to bring the cart off the floor in order to lift and move a heavy load." Request for Scope Ruling at 3; see also Bond Street Reply Comments at 1-2 (explaining that hook's location " serves as a deterrent to the user to push or kick [the cart] under a load" ). Bond Street explained that the cart is designed to be pulled, and that the cart " would be damaged if pushed from the rear." Bond Street Reply Comments...

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