Slip Op. 08-42
UNITED STATES COURT OF INTERNATIONAL TRADE
GLEASON INDUSTRIAL PRODUCTS,
INC. and PRECISION PRODUCTS,
INC.,
Plaintiffs, Before: Richard W. Goldberg,
Senior Judge
v.
UNITED STATES, Court No. 06-00089
Defendant,
and
CENTRAL PURCHASING, LLC,
Defendant-
Intervenor.
OPINION
[Commerce’s remand results are sustained in part and remanded in
part].
Date: April 14, 2008
Crowell & Moring, LLP (Matthew P. Jaffe) for Plaintiffs Gleason
Industrial Products, Inc. and Precision Products, Inc.
Adduci, Mastriani & Schaumberg, LLP (Louis S. Mastriani, William
C. Sjoberg) for Defendant-Intervenor Central Purchasing, LLC.
Jeffrey S. Bucholtz, Acting Assistant Attorney General; Patricia
M. McCarthy, Assistant Director, Commercial Litigation Branch,
Civil Division, United States Department of Justice (Stephen C.
Tosini); Office of the Chief Counsel, U.S. Department of
Court No. 06-00089 Page 2
Commerce (Carrie Lee Owens), of counsel, for Defendant United
States.
GOLDBERG, Senior Judge: This matter is before the Court
following its grant of the U.S. Department of Commerce’s
(“Commerce”) voluntary remand request. See Gleason Indus.
Prods., Inc. v. United States, Slip Op. 07-40, 2007 WL 781196
(CIT Mar. 16, 2007). On remand, Commerce held that Central
Purchasing, LLC’s (“Central Purchasing”) welding carts were
within the scope of an antidumping duty order in place against
certain hand trucks manufactured in China. For the reasons that
follow, Commerce’s results are sustained in part and remanded in
part.
I. BACKGROUND
In 2004, Commerce entered an antidumping duty order on
certain varieties of hand trucks manufactured in China. See
Hand Trucks and Certain Parts Thereof from the People’s Republic
of China, 69 Fed. Reg. 70,122 (Dep’t Commerce Dec. 2, 2004)
(notice of antidumping duty order). At that time, Central
Purchasing asked Commerce to determine whether two of its
welding carts, models 93851 and 43615, were within the scope of
this order. Upon investigation, Commerce found that Central
Purchasing’s carts were outside the scope of the antidumping
duty order. See Final Scope Ruling for Central Purchasing,
LLC’s Two Models of Welding Carts (Feb. 15, 2006).
Court No. 06-00089 Page 3
Plaintiffs Gleason Industrial Products, Inc., and Precision
Products, Inc. (collectively “Gleason”) challenged this
determination and filed a motion for judgment on the agency
record. Upon review of Gleason’s motion, Commerce requested a
voluntary remand to consider whether: (1) Central Purchasing’s
welding carts possessed a projecting edge capable of sliding
under a load;1 and (2) whether Central Purchasing’s welding carts
were within the scope of the antidumping duty order due to its
express mention of cylinder hand trucks. The Court granted
Commerce’s request. See Gleason, 2007 WL 781196, at *5. On
remand, Commerce determined that Central Purchasing’s welding
carts were included within the scope of the order because they
possessed a projecting edge capable of sliding under a load, and
also qualified as cylinder hand carts under the order’s scope
language. Central Purchasing appeals this remand determination.2
1
In its voluntary remand request, Commerce stated that it wanted
to review whether the cart’s projecting edges “easily” slid
under a load for the purposes of moving or lifting the load. In
Commerce’s remand results, the agency conceded that the term
“easily” is not part of the scope language and that
consideration of the ease with which the edge slides under an
item is not a relevant consideration. See Results of
Redetermination on Remand Pursuant to Gleason Indus. Prods.,
Inc. v. United States, Slip Op. 07-40 (CIT Mar. 16, 2007), at 14
(“Remand Determination”).
2
Central Purchasing also argues that Gleason failed to exhaust
its administrative remedies and that Commerce failed to maintain
a complete administrative record. These arguments lack merit.
(footnote continued)
Court No. 06-00089 Page 4
II. JURISDICTION & STANDARD OF REVIEW
The Court has jurisdiction pursuant to 28 U.S.C. §
1581(c). The Court “shall hold unlawful any determination,
finding, or conclusion found . . . to be unsupported by
substantial evidence on the record, or otherwise not in
accordance with law.” 19 U.S.C. § 1516a(b)(1) (2000)).
Substantial evidence “means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229
(1938). However, substantial evidence is “something less than
the weight of the evidence, and the possibility of drawing two
inconsistent conclusions from the evidence does not prevent an
administrative agency’s finding from being supported by
substantial evidence.” Consolo v. Fed. Maritime Comm’n, 383 U.S.
607, 620 (1966). In sum, this standard asks only whether
Commerce’s interpretation is reasonable. See Nippon Steel Corp.
v. United States, 458 F.3d 1345, 1351 (Fed. Cir. 2006). However,
Commerce’s findings must be “reached by ‘reasoned
decisionmaking,’ including an examination of the relevant data
and a reasoned explanation supported by a stated connection
The exhaustion argument was rendered moot when this Court
granted Commerce’s voluntary remand request. See Gleason, 2007
WL 781196, at *5. The administrative record argument has also
been addressed because the Court found no error when it
previously denied Central Purchasing’s Motion to Supplement the
Administrative Record.
Court No. 06-00089 Page 5
between the facts found and the choice made.” See Husteel Co. v.
United States, 31 CIT __, , 491 F. Supp. 2d 1283, 1291 (2007)
(citing Elec. Consumers Res. Council v. Fed. Energy Regulatory
Comm’n, 747 F.2d 1511, 1513 (D.C. Cir. 1984)).
III. DISCUSSION
On remand, Commerce found Central Purchasing’s welding
carts were within the scope of the antidumping duty order
because the carts possessed the required physical
characteristics and qualified as cylinder welding carts. The
Court’s analysis focuses solely on the first determination
because regardless of whether these carts qualify as cylinder
welding carts, they must also possess the required physical
characteristics to be within the order’s scope.3 Pursuant to the
order, hand trucks must have four physical components: (1) a
vertical frame; (2) a handle or handles; (3) two or more wheels;
and (4) a projecting edge capable of sliding under a load. See
Hand Trucks from China, 69 Fed. Reg. at 70,122. All parties
agree that Central Purchasing’s carts possess the first three
components. Central Purchasing, however, argues that its
welding carts lack a projecting edge. Under the antidumping
3
Commerce concedes this point in its Remand Determination
noting that “[a]s required by the Department’s regulations,
the Department must analyze the physical characteristics of
Central Purchasing’s welding carts with the characteristics
of hand trucks covered by the order regardless of whether the
welding carts are cylinder hand trucks.” Remand Determination,
at 14.
Court No. 06-00089 Page 6
duty order, a projecting edge (or “toe plate”) is defined as “a
horizontal projecting edge or edges . . . perpendicular or
angled to the vertical frame, at or near the lower section of
the vertical frame.” Id. This projecting edge must also
“slide[] under a load for the purposes of lifting and moving a
load.” Id. The issue of whether Central Purchasing’s welding
carts are within the scope of this order hinges on whether
Commerce’s conclusion that these carts possess projecting edges
capable of sliding under a load is supported by substantial
evidence.
A. The Projecting Edges’ Physical Characteristics
On remand, Commerce examined whether the welding carts’
“storage trays” qualified as projecting edges. The evidence
submitted by both parties demonstrates that these trays extend
out at of a height of roughly 1 1/4 to 1 3/4 inches from the
bottom of their respective vertical frames. Central Purchasing
argued that because these trays are not flush with the bottom of
the carts’ vertical frames they fall outside the order’s scope.
Commerce disagreed.4
4
Central Purchasing also claims that its models have restrictive
external bars which place its carts outside the order’s scope.
However, these external bars do not impact a projecting edge’s
ability to slide under a load, but merely limit the size of load
the cart can slide under. At best, these bars constitute an
additional feature, which the scope order makes clear does not
remove a cart from the antidumping duty order’s application.
See Hand Trucks from China, 69 Fed. Reg. at 70,122.
Court No. 06-00089 Page 7
To support its determination, Commerce relied on the
language of both the antidumping duty order and the
International Trade Commission’s (“ITC”) final investigative
report. Under the order, a projecting edge is “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.” Id. Similarly, the ITC’s final investigative
report defined a projecting edge as: “[a] load support nose
member . . . [that] is connected to the lower front portion of
the frame.” Hand Trucks and Certain Parts Thereof from China,
USITC Pub. 3737, Inv. No. 731-TA-1059 (Final), at I-4, N.12
(Nov. 2004). According to this language, a projecting edge is
not required to be flush with the vertical frame to fall within
the order’s scope. As the welding cart trays are both connected
to and perpendicular or angled toward the vertical frame of both
welding cart models, substantial evidence supports Commerce’s
conclusion.
B. The Projecting Edges’ Ability to Slide Under Loads
Commerce also concluded that the projecting edges of models
93851 and 43615 are capable of sliding under a load if the load
is slightly tipped or tipped.5 See Results of Redetermination on
5
In the past, Commerce has drawn a distinction between a
projecting edge’s ability to slide under a load, and a
(footnote continued)
Court No. 06-00089 Page 8
Remand Pursuant to Gleason Indus. Prods., Inc. v. United States,
Slip Op. 07-40 (CIT Mar. 16, 2007), at 11—12 (“Remand
Determination”). Commerce found that the downward facing
vertical edges of the carts’ projecting edges, or the outside
edges that would actually meet a load, assist users in sliding
the welding carts under loads. Id. However, Commerce
overlooked a critical distinction between the two models of
Central Purchasing’s welding carts. While models 93851 and
43615 are similar in many aspects, the vertical edges of their
projecting edges are different. Model 93851’s vertical edge is
turned downward, but model 43615’s vertical edge is not. See
id. at 23. In light of this distinction, Commerce’s conclusions
regarding each model must be evaluated separately.
projecting edge’s ability to have a load slid across or onto it.
See Final Scope Ruling: Antidumping Duty Order on Hand Trucks
From the People’s Republic of China (A-570-891); Expeditors
Tradewin, LLC, on behalf of Ameristep Corp., Inc. (May 15,
2007); see also Def. Intervenor’s. Br. at 29 n.13.
According to Commerce, if a cart’s projecting edge can slide
under a load, the cart will be within the scope of the order.
If the cart’s projecting edge is only capable of having a load
slid across or onto it, the cart will not fall within the
order’s scope. In the present case, Commerce found that Central
Purchasing’s welding carts can perform both functions as the
welding carts’ ability to have a load slid across their
projecting edges does not prevent these edges from also sliding
under a load. See Remand Determination, at 25—26. In short,
the presence of this additional “sliding across” function does
not place Central Purchasing’s welding carts outside the order’s
scope. See Hand Trucks from China, 69 Fed. Reg. at 70,122.
Court No. 06-00089 Page 9
i. Model 93851
The vertical edge of model 93851’s projecting edge slopes
downward toward potential loads. Model 93851’s projecting edge
is elevated only slightly and not to the degree to render
tipping a load to allow the projecting edge to slide under
implausible. This model’s projecting edge is 1 1/4 inches thick
making it durable and capable of lifting and moving a load as
required under the order’s scope language. See id. at 23—24.
Additionally, no warnings or user limitations indicate that this
model is prohibited from sliding under a load, which can provide
evidence of the intended purpose of an alleged hand truck’s
projecting edge. See Vertex Int’l, Inc. v. United States, Slip
Op. 06-10, 2006 WL 160295, at *5 (CIT Jan. 19, 2006). These
facts provide substantial evidence in support of Commerce’s
determination that model 93851 falls within the scope of the
antidumping duty order.
ii. Model 43615
Substantial evidence does not support Commerce’s
conclusions regarding the ability of model 43615’s projecting
edge to slide under a load. In contrast to model 93815, model
43615’s projecting edge functions as a “box” for holding welding
equipment which consists of a flat tray surrounded by four
upturned walls, and its vertical edge does not face downward.
Central Purchasing specifically noted that this model’s vertical
Court No. 06-00089 Page 10
edge “cannot be described as facing downward because all four
sides of the toe plate form a tray with the sides upturned.”
Remand Determination, at 23—24. Commerce attempted to rebut
Central Purchasing’s argument by claiming it relied on the
cart’s generalized features and that this cart is substantially
similar to model 93851. See id. at 27. However, substantial
evidence requires “a reasoned explanation supported by a stated
connection between the facts found and the choice made.”
Husteel Co., 31 CIT at __, 491 F. Supp. 2d at 1291 (citing Elec.
Consumers Res. Council, 747 F.2d at 1513). Commerce
specifically relied on its erroneous evaluation of model 43615’s
vertical edge when it concluded that “[b]ecause the vertical
edge of the toe plate faces downward, the user can both slide a
load onto the welding cart and slide the toe plate or projecting
edge under a load without obstruction.” Remand Determination,
at 11—12. In ignoring the substantial design differences
between the two models, Commerce’s analysis of model 43615 is
unsupported in its present form and its determination that the
cart falls within the order’s scope lacks substantial evidence.
IV. CONCLUSION
In light of the foregoing, this Court sustains Commerce’s
remand results in part and remands in part. On remand, Commerce
must evaluate whether model 43615’s projecting edge is capable
of sliding under a load for the purpose of lifting and moving
Court No. 06-00089 Page 11
that load. If Commerce is unable to do so, it must find that
model 43615 falls outside the scope of the antidumping duty
order. A separate order shall be entered accordingly.
/s/ Richard W. Goldberg__
Richard W. Goldberg
Senior Judge
Date: April 14 , 2008
New York, New York