Slip Op. 09-95 UNITED STATES COURT OF INTERNATIONAL TRADE



### B OND 

### S TREET 

### , L TD 

### ., : Plaintiff , :

v. : 

### U NITED 

### S TATES 

### , : Defendant , : Court No. 08-00049 and : 

### G LEASON 

### I NDUSTRIAL 

### P RODUCTS 

### , I NC



### . : and 

### P RECISION 

### P RODUCTS 

### , I NC 

### ., : Defendant-Intervenors.
[Granting Plaintiff’s motion for judgment on th e agency record, and remanding scope ruling concerning antidumping order on hand trucks from the People’s Republic of China] Dated: September 8, 2009 Fitch, King and Caffentzis (James Caffentzis ), 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 ), 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 Co mmerce’s determination that Bond Street’s StebcoCourt No. 08-00049 Page 2

1 The instant action is Bond Street’s second challenge to the determination at issue here. Commerce initially issued the Scope Ruling on May 30, 2007, but failed to mail a copy to Bond Street. Bond Street’s first action seeking to cont est the ruling was therefore deemed premature, and dismissed for lack of jurisdiction without prejudice to refiling. See Bond Street, Ltd. v. United States , 31 CIT ____, 521 F. Supp. 2d 1377 (2007). Portable Slide-Flat Cart (style no. 390009 CHR) (“Stebco cart”) is within the scope of the antidumping duty order on hand trucks from th e People’s Republic of China (“PRC”). See Hand Trucks and Certain Parts Thereof from the Peopl e’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 Defe ndant and Defendant-Intervenors’ Responses (“Pl.’s Reply Brief”). Bond Street’s motion is opposed by the Gove rnment and by Gleason Industrial Products, Inc., and Precision Products, Inc. (collectively, “Domestic Manufacturers”), who maintain that Commerce’s Scope Ruling is supported by substan tial evidence and otherw ise 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, BondCourt No. 08-00049 Page 3

Street’s Motion for Judgment on the Agency Reco rd is granted, and Commerce’s Scope Ruling is remanded for reconsideration.

I. Background In December 2004, the Department of Comme rce 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 Pe ople’s Republic of China, 69 Fed. Reg. 70,122 (Dec. 2, 2004) (“Antidumping Order”). The Antidum ping Order expressly defines the covered merchandise, both in terms of specific physical characteristics and in terms of functionality: A complete or fully assembled hand truc k 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 fr ame, handling area, wheels, pr ojecting edges or other parts of the hand truck can be collapsed or foldedis 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 exclusi on 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 typica lly imported under heading 8716.80.50.10 of the Harmonized Tariff Schedule of the United States (“HTSUS”), although they may also be imported under headi ng 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 specificallyCourt No. 08-00049 Page 4

2 In its Request for Scope Ruling, Bond Street stat ed that the Stebco cart “is ideal for carrying 3-4 pieces of luggage or sample cases which are between 8 inches and 12 inches deep.” See Request for Scope Ruling at 3. See also Bond Street Reply Comments (Fe b. 12, 2007) at 3 (stating that Stebco cart is “designed for personal use, be it for carrying multiple luggage pieces when entering or exiting an airport, or personal bags or items while traveling or in the home,” and is not “designed to move heavy equipment”). The Request for Scope Ruling indicated that the Stebco cart, “extended[,] measures approximately 40 inches high by 18.75 inches wide by 19 inches deep.” See Request for Scope Ruling at 2; accord , Domestic Manufacturers Opposition (Ja n. 25, 2007) at 5. The Request further stated that the cart “collapses to . . . approximately 30 inch es high by 18.75 inches wide, by 2 e inches deep.” See Request for Scope Ruling at 2; accord , Domestic Manufacturers Opposition at 5. According to Bond Street, the Stebco cart is properly classified under subheading 8716.80.50.20 of the HTSUS. See Request for Scope Ruling at 2. designed for carrying loads like personal bags or luggage in which the frame is made from telescoping tubular material measuring less than e inch in diameter[.] Antidumping Order, 69 Fed. Reg. at 70,122 (emphasis added). After the Antidumping Order issued, Bond Str eet 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 (D ec. 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 l uggage cart,” designed for “personal uses such as carrying luggage, carrying personal bags, or a salesm an 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. 2Bond 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 loadfor 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 pr actical matter, “items must be lifted onto the [toe] plate forCourt No. 08-00049 Page 5

3 See also Request for Scope Ruling at 4 (stating thatitems must be “manually lifted” onto the cart); Bond Street Reply Comment s at 4 (explaining that cart was “designed with an intent that objects, such as luggage, will be placed on the to e plate by hand”); Bond Street Rebuttal Comments (May 28, 2007) at 2-3 (noting that “all items have to be lifted onto the Stebco cart”).

4 In its Request for Scope Ruling, Bond Street stated that “‘Hand Trucks’ do not normally include bungy cords as they are not required for ha nd truck use. Heavy large boxes sit securely on a hand truck as a result of their size and/or wei ght, and [bungy cords] are inconvenient in regular Hand Truck usage due to the time they take to unnecessarily secure a load.” See Request for Scope Ruling at 3. 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, fo r easy storage in a car trunk and behind a home/office door, and for use when traveling.” Id . at 2. But the collapsibility f eature 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 81⁄2 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 th e bungee cord has been pulled over the bags or other items on the cart. See Request for Scope Ruling at 2-3 (des cribing location, use, and purpose of bungee cord and hook); Bond Street Reply Comme nts (Feb. 12, 2007) at 2 (explaining that hook “serv[es] as the anchor for securing luggage and personal bags” on cart). 4 Bond Street emphasizedCourt No. 08-00049 Page 6

5 Besides detailing the physical features of the Stebco cart and their effect on the cart’s ability to “slide[] under” a load, Bond Street’s Request for Scope Ruling also addressed the expectations of the ultimate purchaser and the ultimate use of th e cart, as well as the manner in which the cart is advertised. See Request for Scope Ruling at 3-5. Bond Street noted, for example, that, as a prac tical matter, the height of the Stebco cart prevents it from being loaded with more th an two standard-size warehouse boxes (assertedly rendering the cart of little or no “industrial or warehous e utility”), and that (due to the design of the toe plate) the cart’s “only viable use” is to move relatively light items such as luggage and sample cases, “which can be manually lifted onto the cart.” See Request for Scope Ruling at 3-4. Bond Street further advised that the cart has a relatively modest load capacity of a maximum of 275 pounds, and that – in any event – the 275-pound maxi mum can be sustained only for limited periods, while the “ideal load” specified by the cart’s manufacturer is 150 pounds. See Bond Street Reply Comments at 3-5; Bond Street Rebuttal Comments at2-3. Bond Street noted that the cart’s loadbearing capacity is also limited by the size and com position of its wheels (which are relatively small and made of PVC plastic, in contrast to the larger , shock-absorbent tires typical of hand trucks). See Bond Street Reply Comments at 5; B ond Street Rebuttal Comments at 2-3. Together with its Request for Scope Ruli ng, Bond Street submitted to Commerce a sample of the Stebco cart, as well as excerpts from cat alogs and print-outs of web pages featuring photos and descriptions of various luggage carts and hand trucks. See Request for Scope Ruling at 4-6 and Attachments; see also Audio Recording of Oral Argument at 51:22-52:19 (confirming that sample Stebco cart is included in the Administrative Record of this action). 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 h eavy 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 th e cart is designed to be pulled, and that the cart “would be damaged if pushed from the rear.” Bond Street Reply Comments at 2; see also id . at 5 (noting that height of cart, with telescoping handle extended, is intended to allow user to “move the [cart] without having to bend when pulling it”). 5Court No. 08-00049 Page 7

The Domestic Manufacturers opposed Bond Street’s request, asserting that – because the cart has “a hand-propelled barrow with a vertical fr ame having a handle at the upper section of the vertical frame; two wheels at th e lower section of the vertical frame; and a horizontal projecting edge perpendicular to the vertical frame at the lower section of the vertical frame” – the Stebco cart “meets the precise definition of the subject merchandise,” and thus falls squarely within the scope of the Antidumping Order. See Domestic Manufacturers Opposition (Jan. 25, 2007) at 2, passim ; Domestic Manufacturers Reply (March 19, 2007) at 1-2; Domestic Manufacturers Continued Opposition (May 21, 2007) at 1. The Domestic Manuf acturers also disputed each of Bond Street’s specific claims concerning the physical characteristics of the cart. The Domestic Manufacturers first targeted B ond Street’s emphasis on the Stebco cart’s lack of a kick plate. The Domestic Manufacturers argued that the absence of a kick plate “does not remove [the Stebco cart] from the scope of the or der,” because “it is not necessary for a hand truck to exhibit a kick plate for it to be covered.” Domestic Manufacturers Opposition at 2; Domestic Manufacturers Reply at 1-2. The Domestic Ma nufacturers similarly took aim at Bond Street’s statements concerning the location of the bungee cord hook on the rear of the bottom of the cart. Among other things, the Domestic Manufacturers sugge sted that a user might simply place his foot elsewhere at the bottom of the back of the cart, for leverage to help “position [the toe plate] beneath a load.” See Domestic Manufacturers Opposition at 3 & n.2. As to Bond Street’s statements that the design of the toe plate prevents the Stebco cart from “slid[ing] under a load,” the Domestic Manufacturers relied on dictionary definitions of “slide” and “under” to argue that the Antidumping Order require s only that a toe plate “can be placed in or intoCourt No. 08-00049 Page 8

6 The Domestic Manufacturers advanced two additional arguments, not directly relevant here. First, the Domestic Manufacturers argued that th e Stebco cart does not fall within the Antidumping Order’s express exclusion of “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 einch in diameter.” See Domestic Manufacturers Opposition at 4-7 ( quoting Antidumping Order, 69 Fed. Reg. at 70,122); Domestic Manufacturers Reply at 2; Domestic Manufacturers Continued Opposition at 2. And, second, the Domestic Manufacturers asserted that the Stebco cart is similar to two products that Commerce previously determined to be within the scope of the Antidumping Order. See Domestic Manufacturers Opposition at 7-8; Domestic Manufacturers Reply at 2; Domes tic Manufacturers Continued Opposition at 2-3.

7 But see Pl.’s Brief at 12-13 (asserting that, contrary to the Domestic Manufacturers’ claims, “slide under” does not mean “move under, or be positioned under, when lifted,” and that the Antidumping Order’s functional requirement of a to e plate “cannot be met by a load sliding across or onto it. The toe plate must also be able to slide under a load.”). a position beneath a load so the load can be slid across the toe plate’s surface.” See Domestic Manufacturers Opposition at 2-3. The Domestic Manuf acturers further asserted that “an individual can easily position the toe plate of the [Stebco cart] beneath a load by . . . tipping the load slightly so as to better allow the toe plate to slide under the load.” Id . at 3. The Domestic Manufacturers accordingly urged Commerce to rule that the Steb co cart is within the scope of the Antidumping Order. Id . at 8. 6 Bond Street has stated that it “does not disagree” with the dictionary definition of “slide” that the Domestic Manufacturers have cited. See Bond Street Reply Comments at 2. 7 Indeed, Bond Street repeatedly urged Commerce and the Domestic Manufacturers to test the sample Stebco cart, to determine whether – in the words of the Domes tic Manufacturers’ proffered dictionary definition – the cart in fact will “go with a smooth continuous motion” under a load. See Bond Street Reply Comments at 2 (quoting dictionary definition of “slide” on which the Domestic Manufacturers rely); see also id . at 2-3 (suggesting test of sample Stebco cart provided to Commerce, to “demonstrate[]Court No. 08-00049 Page 9

8 Although the Domestic Manufacturers inspected a sample of the Stebco cart, they apparently did not test it. Nor has Commerce done so. See Audio Recording of Oral Argument at 55:24-55:33, 1:26:45-1:26:47, 1:36: 14-1:36:21, 2:02:22-2:03:10; 2: 08:58-2:09:00 (counsel for Government asserts that Commerce did not test the cart, and was not required to do so).

9 In determining whether merchandise falls within the scope of an antidumping order, Commerce begins by examining the language of th e order at issue. The “predicate for the interpretive process is language in the order that is subject to interpretation.” Duferco Steel Inc. v. United States , 296 F.3d 1087, 1097 (Fed. Cir. 2002). If the terms of the order alone are not dispositive, the interpretive process is governed by 19 C.F.R. § 351.225(d), which directs Commerce to determine whether it can make a ruling based upon the request for a scope ruling and the factors listed in § 351.225(k)(1). See Sango Int’l, L.P. v. United States , 484 F.3d 1371 (Fed. Cir. 2007). The three sources to be considered are “[t]he de scriptions of the merchandise contained in the that the toe plate cannot slide under the load”) ; Bond Street Rebuttal Comments (May 28, 2007) at 1-2 (detailing suggested test, and noting that Dome stic Manufacturers either did not avail themselves of opportunity to test cart when th ey viewed it at Commerce headquart ers, or did not disclose results of testing). 8 Bond Street asserted, moreover, that “tipping th e load slightly” before moving the toe plate under the load (as the Domestic Manufacturers cont emplate) would necessarily result in damage to any bag, box, or other object at the bottom of the lo ad, and, over time, would also damage the frame of the cart itself. See Bond Street Reply Comments at 2-3. Even more to the point, Bond Street stated that tilting the cart forward in an attempt to slide the toe plate under a load would cause the wheels to collapse and the cart to begin to fold up (as if for storage), pr ecluding the toe plate from “slid[ing] under” the load. See Bond Street Reply Comments at 2-3; Bond Street Rebuttal
Comments at 2. Commerce analyzed Bond Street’s Request for Scope Ruling under the framework of 19 C.F.R. § 351.225(k)(1) (2006), finding “the descripti ons of the merchandise” to be dispositive. See Scope Ruling at 8. 9 Commerce determined that the Stebco cart “clearly consists” of four “requisiteCourt No. 08-00049 Page 10

petition, the initial investigation, and the determinations of [Commerce] (including prior scope determinations) and the [International Trade] Commission.” 19 C.F.R. § 351.225(k)(1). If the analysis outlined above is not dispos itive, Commerce initiates a scope inquiry pursuant to 19 C.F.R. § 351.225(e), and applies the five Diversified Products criteria codified in the agency’s regulations. See 19 C.F.R. § 351.225(k)(2); Diversifie d Products Corp. v. United States , 6 CIT 155, 572 F. Supp. 883 (1983). characteristics” of a hand truck, as established by 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. Indeed, Commerce noted that “Bond Str eet does not argue that the [Stebco cart] does not contain any of these characteristics.” Id . Commerce observed that, instead, “Bond Street argues the Department should take into consideration th e functions of the [Stebco cart] and the limitations of its toe plate, focusing on the scope language [in the Antidumping Order] that states ‘The projecting edge or edges, or toe plate, slides under a load for purposes of lifting and/or moving the load.’” Id . ( quoting Antidumping Order, 69 Fed. Reg. at 70,122). Commerce stated that “Bond Street argues that the design of the collapsing toe plate, the placement of the bungy cord hook, and the lack of a kick plate, make it impossibl e to slide the [Stebco cart] under a load.” Id . Although Commerce then briefly addressed the collapsible toe plate, the location of the bungee cord hook, and the absence of a kick plate, seriatim , the agency’s determination is silent on the ability of the toe plate to “slide[] under a load for purposes of lifting and/or moving the load.” See generally Scope Ruling, passim

. After further finding that the Stebco cart did not fall within the Antidumping Order’s express exclusion of “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 materialCourt No. 08-00049 Page 11

10 Bond Street concedes that the frame of the Stebco cart includes some telescoping tubing with a diameter greater than einch, which Commerce determined prevented the cart from being covered by the express exclusion in th e Antidumping Order (quoted above). See Request for Scope Ruling at 2; Scope Ruling at 8-9. measuring less than einch in diameter,” 10Commerce concluded that Bond Street’s Stebco cart falls within the scope of the Antidumping Order. See Scope Ruling at 8-9.
II. Analysis Commerce’s determination in this case cannot be sustained, because the agency failed to make a finding as to one of the defining characteristics of merchandise within the scope of the Antidumping Order, as established by the terms of that Order – the very characteristic that Bond Street contends the Stebco cart at issue here does not possess. Specifically, Commerce failed to make a determination as to whether the toe plat e of the Stebco cart can “slide[] under a load for purposes of lifting and/ormoving the load.” See Antidumping Order, 69 Fed. Reg. at 70,122; see also Pl.’s Brief at 7 (noting that Scope Ruling “[g]laringly omitted” any analysis of cart’s ability to slide under a load); Pl.’s Reply Brief at 2 (stating that the Scope Ruling’s analysis “omits the fifth indispensable and essential element” of a “hand truck” – the ability to slide under a load). The Government and the Domestic Manufacturers contend that the Scope Ruling must be sustained because Commerce expressly addressed eachof the physical characteristics of the Stebco cart that Bond Street cites in arguing that the cart’s toe plate cannot “s lide[] under a load.” See generally Def.’s Brief at 6-8; Def.-Ints.’ Brief at3-4, 6-7. The Government and the Domestic Manufacturers point out, for example, that the Scope Ruling acknowledged the collapsibility of the toe plate, but that Commerce determined that the collapsibility did not put the cart beyond the scopeCourt No. 08-00049 Page 12

of the Antidumping Order, because the Order specifica lly states that the fact “that . . . projecting edges or other parts of the hand truck can be collaps ed or folded is not a ba sis for exclusion of the hand truck from the scope.” See Def.’s Brief at 6-8; De f.-Ints.’ Brief at 3, 6-7. The Government and the Domestic Manufactur ers further emphasize that the Scope Ruling took note of Bond Street’s argument that the location of the bungee cord hook prevents a user from pushing the cart forward with his foot to gain leverage in order to lift the front of the cart off the ground, but that Commerce determined (a) that th e hook’s “primary purpose” is to “secure [items on the cart] for transport,” (b) that there was no ev idence to indicate that a user could not place his foot “at a position other than the . . . location of the hook ( e.g. , below the hook or against the wheel),” and (c) that – in any event – the Antidumping Order expressly states that additional “physical characteristics” (such as a bungee cordhook) do not exclude merchandise from the scope of the Order. See Def.’s Brief at 6-8; De f.-Ints.’ Brief at 3, 6-7. The Government and the Domestic Manufacturers similarly note that the Scope Ruling considered the fact that the Stebco cart lacks a kick plate, and that Commerce concluded that the absence of such a feature did not remove the cart from the scope of the Antidumping Order because a kick plate “is not a required characteristic as set forth in the language . . . [defining] the scope” of the Order. See Def.’s Brief at 6-8; De f.-Ints.’ Brief at 3, 6-7. Contrary to the claims of the Government and the Domestic Manufacturers, however, it is not enough that Commerce analyzed each of the re ferenced physical characteristics in isolation. Bond Street has never claimed that the existence of those physical characteristics, in and of themselves, places the Stebco cart beyond the scope of the Antidumping Order. To the contrary, theCourt No. 08-00049 Page 13

11 As explained in Vertex , another case involving a request for a ruling on the scope of the Antidumping Order at issue here: The Order defines “ projecting edge or toe plate ” according to its function

. Specifically, it states that “[t] he projecting edge or edges, or toe plate, slides under a load for purposes of lifting and/or moving the load.” . . . Although Commerce specified that a hand truck may be “suitable for any use,” the “any use” language is limited by this sentence [in the Antidumpi ng Order] which requires that a hand truck’s toe plate slide under a load to lift or move it. Commerce must give effect to gravamen of Bond Street’s argument is that those physicalcharacteristics prevent the Stebco cart from having the functional or operationalcharacteristic set forth in the Antidumping Order – that is, that “[t]he projecting edge or edges, or toe plate, slide[] under a load.” See , e.g. , Pl.’s Reply Brief at 3-4 (asserting that “[i]t is the nature of the co llapse mechanism, not the fact of its presence, that excludes this cart from the scope of the order,” and arguing that Commerce erred in focusing on the existence of individual “design features” of the cart “rather than its operation”), 5 (stating that “Commerce’s analysis fails to recognize that there is a distinction between physical and operational characteristics of hand trucks,” and that agency was obligated to determine whether Stebco cart “possessed those operational features characteristic of the articles covered by the order, in addition to the physical characteristics”); Antidumping Order, 69 Fed. Reg. at 70,122. But nowhere in its Scope Ruling in this case did Commerce make a determination as to whether the toe plate of the Stebco cart can “s lide[] under a load for purposes of lifting and/or moving” that load. Nowhere in the Scope Ruli ng did Commerce address Bond Street’s claim that the collapsible toe plate, the location of the bungee cord hook, and the absence of a kick plate prevent the toe plate of the Stebco cart from “slid[ing] under” a load. Commerce’s analysis here thus rendered the Antidumping Order’s “slide[] under” language mere surplusage, and verged on the disingenuous. 11Court No. 08-00049 Page 14

this sentence , which states an essential physical characteristic of the articles included within the scope and specifies the purpose for which the horizontal projecting edge or toe plate must be designed

. Vertex Int’l, Inc. v. United States , 30 CIT 73, 79 (2006) (emphases added).

12 Commerce’s instructions concerning the susp ension of liquidation confirm that the Scope Ruling focused solely on the physical characteristics of the Stebco cart, without regard to the cart’s functional or operational ability to “slide[] under” a load. Summarizing the Scope Ruling, those instructions state: “Because the [Stebco cart] consis ts of a vertical frame, a handle, two wheels, and a projecting edge or toe plate, . . . and because the imported product does not fall within the exclusionary language of the scope, the Commerce Department found this product to be within the scope of the [Antidumping Order].” See Instructions re: Suspension of Liquidation (June 14, 2007). Moreover, the language of the Scope Ruling itself belies any suggestion that Commerce somehow did not grasp the nature of Bond Street’s argument. As noted elsewhere above, the Scope Ruling accurately characterized Bond Street’s argum ent as focusing on the functional or operational requirement embodied in the Antidumping Order – th e requirement that the toe plate be capable of “slid[ing] under” a load. Commerce wrote: Bond Street does not argue that the . . . cart does not contain any of [the physical] At oral argument, the Domestic Manufacturer s (and, to some extent, the Government) sought to excuse the Scope Ruling as inartfully drafted, asserting that Commerce at least implicitly found that the Stebco cart was capable of “slid[ing] under” a load. The Domestic Manufacturers argued, in essence, that “[a] court may ‘uphold [an agen cy’s] decision of less than ideal clarity if the agency’s path may reasonably be discerned.’ ” Ceramica Regiomontana, S.A. v. United States , 810 F.2d 1137, 1139 (Fed. Cir. 1987) ( quoting Bowman Transp., Inc. v. Arkansas-Best Freight Sys., Inc. , 419 U.S. 281, 286 (1974); Colorado Interstate Gas Co. v. Federal Power Comm’n , 324 U.S. 581, 595 (1945)); see , e.g. , Audio Recording of Oral Argumen t at 1:29:29-1:29:40, 2:15:56-2:16:08, 2:40:10-2:40:49, 2:50:03-2: 50:13, 2:56:19-2:57:24; see also Def.-Ints.’ Brief at 8. But, contrary to the Domestic Manufacturers’ assertions, the Scope Ru ling here does not suffer fr om a lack of clarity. In fact, the Scope Ruling is crystal clear. It si mply ignores the substance of Bond Street’s claim. 12Court No. 08-00049 Page 15

characteristics [specified in the Antidumpi ng Order]. Rather, Bond Street argues the Department should take into consideration the functions of the . . . cart and the limitations of its toe plate, focusing on the scope language that states “The projecting edge or edges, or toe plate, slides under a load for purposes of lifting and/or moving the load.” Bond Street argues that the design of the collapsing toe plate, the placement of the bungy cord hook, and the lack of a kick plate[] make it impossible to slide the . . . cart under a load. Scope Ruling at 8. In any event, even if the Scope Ruling were to be construed as having (implicitly) found that the toe plate of the Stebco cart is capable of “slid[ing] under” a lo ad, any such determination would be vulnerable to attack on the grounds that it is not supported by substantial evidence in the record. There is little or no evidence in the existing record to indicate that the toe plate of the Stebco cart can “slide[] under a load for purposes of lifting and/or moving the load.” See generally , e.g. , Audio Recording of Oral Argument at 1:34:43-1: 35:13, 1:54:36-1:55:00, 2:08: 30-2:08:42, 2:40:52-2:47:58.

13 This result obviates any need to here address the merits of the Domestic Manufacturers’ claim that a cart falls within the scope of the An tidumping Order even if the cart’s toe plate slides under a load only if that load ha s been “tilted” or “tipped.” See , e.g. , Def.-Ints.’ Brief at 4, 11-12; but see Pl.’s Brief at 11-14; see also Audio Recording of Oral Argument at 1:47:47-1:48:00 (acknowledging that Scope Ruling did not c onsider “tilting” or “tipping” of load). There is similarly no need to here reach the Domestic Manufacturers’ related claim that the scope of the Antidumping Order requires only that it be possible to slide a cart’s toe plate under a load – that is, that the Order does not require that the toe plate slide under the load with any degree of ease. See , e.g. , Def.-Ints.’ Brief at 4, 6; but see Pl.’s Brief at 9-10 ( discussing Vertex , 30 CIT at 76, where the Domestic Manufacturers agreed that the projecting plate of the cart there at issue did not “readily ‘slide under’ a load” and was thus beyond the scope of the Antidumping Order). Because Commerce here failed to make a finding as to whether the Stebco cart’s toe plate “slides under a load for purposes of lifting and/ or moving the load,” Commerce’s Scope Ruling cannot be sustained. This matter therefore must be remanded to the agency for further action. 13Court No. 08-00049 Page 16

III. Conclusion For all the reasons set forth above, Plainti ff’s Motion for Judgment on the Agency Record must be granted, and this matter remanded to the Department of Commerce for further action not inconsistent with this opinion. A separate order will enter accordingly.

___________________________________ Delissa A. Ridgway Judge Dated: September 8, 2009 New York, New York