                           Slip Op. 07-40

           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 motion for voluntary remand is granted.      Plaintiff’s
USCIT Rule 56.2 motion denied as moot.]

                                                Dated: March 16, 2007

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.

Peter D. Keisler, Assistant Attorney General; Patricia M.
McCarthy, Assistant Director, Commercial Litigation Branch,
Civil Division, U.S. Department of Justice (Stephen C. Tosini);
Office of the Chief Counsel, U.S. Department of Commerce (Carrie
Lee Owens), of counsel, for Defendant United States.

GOLDBERG, Senior Judge: Plaintiffs Gleason Industrial Products,

Inc. and Precision Products, Inc. (collectively “Gleason”) move
Court No. 06-0089                                                            Page 2


the Court to enter judgment on the agency record pursuant to

USCIT     Rule    56.2.         Defendant       U.S.     Department     of   Commerce

(“Commerce”) moves the Court on its own accord to remand the

matter     back    to     the        agency.         Defendant-Intervenor     Central

Purchasing, LLC (“CP”) opposes both motions.                         For the reasons

that follow, the Court grants Commerce’s request for a voluntary

remand.

                                     I.    BACKGROUND

        On December 2, 2004, Commerce entered an antidumping duty

order    relating   to        hand    trucks    produced    in   China.      See   Hand

Trucks and Certain Parts Thereof from the People’s Republic of

China, 69 Fed. Reg. 70122 (Dep’t Commerce Dec. 2, 2004) (Notice

of   Antidumping    Duty        Order)     (“Antidumping      Duty    Order”).       The

notice    defined       the    scope      of   the    antidumping     duty   order    as

follows:

        The merchandise subject to this antidumping duty order
        consists   of  hand   trucks  manufactured  from   any
        material, whether assembled or unassembled, complete
        or incomplete, suitable for any use, and certain parts
        thereof, namely the vertical frame, the handling area,
        and the projecting edges or toe plate, and any
        combination thereof.

        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
Court No. 06-0089                                      Page 3


     plate, slides under a load for purposes of lifting
     and/or moving the load.

     That the vertical frame can be converted from a
     vertical setting to a horizontal setting, then
     operated in that horizontal setting as a platform, is
     not a basis for exclusion of the hand truck from the
     scope of this petition.      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 petition.   That other wheels may be connected
     to the vertical frame, handling area, projecting
     edges, or other parts of the hand truck, in addition
     to the two or more wheels located 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
     petition.   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 petition.

     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.
     Specific parts of a hand truck, namely the vertical
     frame, the handling area and the projecting edges or
     toe plate, or any combination thereof, are typically
     imported under heading 8716.90.50.60 of the HTSUS.
     Although the HTSUS subheadings are provided for
     convenience and customs purposes, [Commerce’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; hand trucks that use
     motorized operations either to move the hand truck
     from one location to the next or to assist in the
     lifting of items placed on the hand truck; vertical
Court No. 06-0089                                                              Page 4


        carriers designed specifically to transport golf bags;
        and wheels and tires used in the manufacture of hand
        trucks.

Id.     On December 19, 2005, CP sent a letter to Commerce seeking

a scope ruling that excluded its welding carts from the scope of

the antidumping duty order.                  The letter provided the following

description of the two models at issue here:

        Both carts are made in China, don’t have projected
        edges and are designed to carry welding machines only.
        . . . Please consider in your ruling that both have a
        specialized purpose which can not be utilized as a
        standard hand truck for which the original order is
        written and neither cart has projecting edges.

Letter    from    Heidar      Nuristani,       Compliance      Specialist,      Central

Purchasing, LLC, to Secretary of Commerce at 1, 3 (Dec. 19,

2005).     CP included several photographs of the welding carts at

issue with their letter.

        Gleason    opposed     CP’s    request     on    three      grounds.        First,

Gleason argued the CP welding carts fell squarely within the

description       of   hand   carts     contained       in    the   antidumping      duty

order.     See Letter from Matthew P. Jaffe, Counsel for Gleason,

to Secretary of Commerce at 2 (Jan. 4, 2006) (“Gleason Letter”).

Second,    Gleason      claimed       CP’s    functional      argument      (i.e.,    the

carts    are   not     covered    because       they    are    “designed       to    carry

welding    machines      only”)       lacked     any    relevance      to   the     legal

question of the applicability vel non of the antidumping duty

order to the CP carts.            See id. at 3.          Lastly, Gleason posited
Court No. 06-0089                                              Page 5


that    because    its   original     antidumping   petition    included

pictorial representations of “cylinder hand trucks” similar to

the CP welding carts, such trucks were, in effect, incorporated

into the scope of the antidumping order.       See id. at 3-4.

       Commerce responded by granting CP’s request.            See Final

Scope Ruling for Central Purchasing, LLC’s Two Models of Welding

Carts (Feb. 15, 2006).        In its scope ruling, Commerce explained

its rationale:

       From the description and pictures Central Purchasing
       provided, the welding carts do not have a toe plate
       that   could   slide  under   a   load,  an   essential
       characteristic as described in the scope of this
       order.   Generally, a toe plate is positioned on the
       hand truck perpendicular to the vertical frame and
       flush with the ground to facilitate movement of an
       object onto the cart.     The projected edges on the
       welding carts rise at least a half inch above the
       ground.   At this height the projected edges on these
       welding carts are not able to slide under a load. In
       addition, the toe plates are supported by two bars
       that restrict the width of objects that can be loaded
       and carried on the carts.      Thus, the welding carts
       possess   only   two  of    the   three  key   physical
       characteristics as the subject hand trucks defined in
       the scope of the order. Therefore, we determine that
       the welding carts do not possess all of the
       characteristics of a hand truck as described in the
       scope of this order.

Id. at 5 (citation omitted).          In response to Gleason’s third

argument, Commerce found that “the written description, not the

pictures, is dispositive of what is included in the scope of the

order.”    Id.    Though it acknowledged the importance of pictorial

representations      during     the    administrative   investigation,
Court No. 06-0089                                                            Page 6


Commerce    claimed      that      they     were   ultimately         assistive         and

illustrative, and that the verbal description controlled.                               See

id. at 5-6.

      Gleason    then    timely     commenced      an   action      pursuant       to    19

U.S.C. § 1516a, seeking to challenge Commerce’s scope ruling.

Gleason filed a motion for judgment on the agency record on

August 25, 2006.          Three months later, Commerce shifted gears,

and   requested    a     voluntary    remand       so   as    to    “reconsider         its

previous position in light of arguments made by plaintiffs . . .

.”    Def.’s Resp. Pl.’s Mot. J. Agency R. and Req. Vol. Remand 1

(“Def.’s Mot.”).         In its reply brief, Gleason has consented to

the   voluntary    remand.          CP,     however,     objects       not    only       to

Gleason’s motion for judgment on the agency record, but also to

Commerce’s remand request.

                           II.     STANDARD OF REVIEW

      Where an agency requests remand without confessing error in

order to reconsider its previous position, “the reviewing court

has discretion over whether to remand.”                 SKF USA, Inc. v. United

States,    254    F.3d     1022,     1029    (Fed.      Cir.       2001);    see     also

Shakeproof Assembly Components Div. of Ill. Tool Works, Inc. v.

United States, 29 CIT ___, ___, 412 F. Supp. 2d 1330, 1335

(2005).    “The SKF court further noted that remand is generally

appropriate      ‘if     the     agency’s     concern        is     substantial         and

legitimate[,]’ but may be refused ‘if the agency’s request is
Court No. 06-0089                                                        Page 7


frivolous or in bad faith.’”            Shakeproof, 29 CIT at ___, 412 F.

Supp. 2d at 1335 (quoting SKF, 254 F.3d at 1029).                      A reviewing

court’s function is to screen out those frivolous and bad faith

remand requests that compromise litigants’ legitimate concerns

for finality.        See Corus Staal, BV v. U.S. Dep’t of Commerce, 27

CIT 388, 391, 259 F. Supp. 2d 1253, 1257 (2003) (suggesting that

“merely a change in policy” will not justify a voluntary remand

over    an     interested    party’s    objection).     When,     however,      the

agency requests remand to correct a mistake or address some

other        substantial    and   legitimate    concern,    it    is     far    more

sensible for a court to defer to the agency whose expertise,

after all, consists of administering the statute.

                                  III. DISCUSSION

        It     is   first   necessary    to    establish    why    Commerce       is

acquiescing to remand.            In its motion seeking voluntary remand,

Commerce       “respectfully      request[s]   that   the   Court       issue   the

attached order granting Commerce a voluntary remand to allow it

to reconsider its determination.”              Def.’s Mot. 4.      According to

Commerce, such reconsideration is necessary because “Gleason has

elaborated upon certain arguments and raises issues that should

be further reviewed by the agency.”             Id.   Specifically, Commerce

claims that two issues require reconsideration: (1) whether the

CP welding carts have a projecting edge that easily slides under

a load; and (2) whether CP’s welding carts are “cylinder hand
Court No. 06-0089                                                                     Page 8


trucks,” which are specifically included within the scope of the

order.      Id. 5-6.

       As    for    the    projecting         edge    of     the     CP    welding       carts,

Commerce was impressed by Gleason’s explanation in its scope

request of how the carts’ projecting edges can slide under a

load despite not being flush with the ground.                                 Id.      5.      In

particular, Commerce cited Gleason’s claim that the half-inch

elevation of the toe plate “can actually ‘assist individuals as

they   slide       the    toe   plate    of    a     hand    truck    under       a   cylinder

especially where the bottom surface of the cylinder is curved.’”

Def.’s Mot. 6 (quoting Pl.’s Mot. J. Agency R. 12).                                         Thus,

Commerce’s      first      reason       is    to    engage     in     a    more       searching

examination of the role played by the elevated toe plate.

       Regarding the inclusion of the pictorial representation of

cylinder hand trucks, Commerce seeks leave to explore further

Gleason’s argument that the carts represented in the pictorial

exhibits     are     examples     of     “cylinder          hand    trucks,”       which      are

specifically        referenced         in     the     scope        description         of     the

underlying antidumping duty order.                         Id. 7 (citing Antidumping

Duty Order, 69 Fed. Reg. at 70122).

       In response to Commerce’s first reason, CP contends that

the    Vertex       International,           Inc.     v.     United       States      decision

forecloses any further consideration of the applicability vel

non of the antidumping duty order to the CP welding carts.                                    See
Court No. 06-0089                                                         Page 9


Def.-Int.’s Mem. Opp. Def.’s Req. Vol. Remand and Pl.’s Mot. J.

Agency R. 12-14.            In response to Commerce’s second reason, CP

argues    that    the   inclusion      of   “cylinder     hand    trucks”      as   an

example of a hand truck within the scope of the antidumping

order     is    “meaningless,”      and     that    the   Court    should      focus

exclusively on the “three essential elements” of a hand truck.

Id. 15.

        Commerce is entitled to a remand on both grounds because

the concerns raised are substantial and legitimate, and free

from any semblance of bad faith.             The Vertex International court

was     faced    with   a    similar   question      to   that    posed   in    this

litigation: whether a variety of cart could slide under a load.

See Vertex Int’l, Inc. v. United States, 30 CIT ___, ___, Slip

Op. 06-10 at 10-12 (Jan. 19, 2006).                  The Vertex International

court found that the Antidumping Duty Order did not apply to a

specific variety of garden carts.                  Id. at 12.     The projecting

edge of that garden cart was made of round steel wire.                              Id.

Significantly, the operation instructions for the garden carts

warned that pushing the cart could damage the product or even

cause bodily injury to the operator.                Id. at 11.     Since the toe

plates of the hand trucks covered by the antidumping duty order

had to be pushed in order to slide under a load, see Antidumping

Duty Order, 69 Fed. Reg. at 70122, the garden carts fell outside
Court No. 06-0089                                                          Page 10


the order’s scope.           See Vertex Int’l, 30 CIT at ___, Slip Op.

06-10 at 12-14.

      CP’s reliance on Vertex International is misplaced.                         CP’s

welding      carts     are    drastically         different    than     the     Vertex

International        plaintiff’s garden carts.              Vertex International

does focus the attention of the agency and reviewing courts on

the requirement that a hand truck must be able to slide under a

load in order to fall within the purview of the Antidumping Duty

Order, but it does not purport to answer that question for any

product other than the garden cart at issue in the case.                        Vertex

International frames the issue for this Court, but it hardly

decides it.         In this case, Commerce seeks remand to conduct a

more searching factual examination of whether the elevated toe

plates of the CP welding carts help to slide the carts under

loads.     In other words, Commerce is seeking leave to conduct

precisely     the    sort    of   inquiry    that     the   Vertex     International

decision demands.

      CP’s    second    argument      is    equally      unavailing.      It    is    of

course true that the explicit terms of the Antidumping Duty

Order must control the agency’s subsequent decisions in scope

rulings.      See Duferco Steel, Inc. v. United States, 296 F.3d

1087, 1096-97 (Fed. Cir. 2002).              Commerce’s remand request in no

way   controverts      that   plain      principle.         Instead,    Commerce     is

seeking      to      determine      if      the     CP      welding     carts        are
Court No. 06-0089                                                             Page 11


”cylinder      hand    trucks.”          The    designation     is     crucial    to    a

complete and correct resolution to the scope litigation in this

case    because    the     Antidumping         Duty   Order     specifically      lists

“cylinder hand truck” as a name “commonly used to reference hand

trucks.”       Antidumping Duty Order, 69 Fed. Reg. at 70122.                          As

such, if Commerce makes the factual finding that the CP welding

carts    are    cylinder     hand       trucks,   then    the    Antidumping       Duty

Order’s express terms may require an assessment of antidumping

duties on those carts.                Gleason itself did not clearly express

this    argument      at   the   administrative       level,     and    it    persuaded

Commerce only after presenting a more compelling argument in its

Rule    56.2    brief.       Compare       Gleason     Letter    at     3-4    (arguing

pictorial exhibits to petition necessarily formed part of the

order’s scope) with Pl.’s Mot. J. Agency R. 14-16 (arguing that

“the pictorial exhibits that form part of the petition impart

material       substance         to     the     written       scope      description,

specifically what is meant by the term ‘cylinder hand truck’”).

Reconsidering that designation is a substantial and legitimate

concern that the agency should be permitted to make on its own

before the judiciary passes its judgment on the matter.

                                  IV.     CONCLUSION

        Because Commerce’s request for a voluntary remand aims to

address substantial and legitimate concerns, and because there

are no indicia of bad faith, the Court will grant Commerce’s
Court No. 06-0089                                      Page 12


motion.   In light of the remand, Gleason’s motion for judgment

on the agency record is denied as moot.




                                   /s/ Richard W. Goldberg__
                                   Richard W. Goldberg
                                   Senior Judge
Dated:    March 16, 2007
          New York, New York
           UNITED STATES COURT OF INTERNATIONAL TRADE


GLEASON INDUSTRIAL PRODUCTS,
INC., and PRECISION PRODUCTS,
INC.,

                    Plaintiffs,     Before: Richard W. Goldberg,
                                            Senior Judge
                    v.
                                    Court No. 06-00089
UNITED STATES,

                    Defendant,

                    and

CENTRAL PURCHASING, LLC,

                    Defendant-
                    Intervenor.


                                 ORDER

     Upon consideration of defendant’s partial consent motion
for voluntary remand and all other pertinent papers, and upon
due deliberation, it is hereby

     ORDERED that defendant’s motion is GRANTED; and it is
further

     ORDERED that plaintiff’s motion for judgment on the agency
record is DENIED as moot; and it is further

     ORDERED that this case is remanded to defendant for
reconsideration of (1) whether CP’s welding carts have a
projecting edge that easily slides under a load and (2) whether
welding carts are specifically included within the scope of the
order due to the mention of “cylinder hand trucks”; and it is
further

     ORDERED that defendant shall file its remand results with
the Court by June 14, 2007; and it is further

     ORDERED that parties shall have until July 16, 2007 to file
comments on the remand results; and it is further
     ORDERED that parties shall have until July 31, 2007 to file
any responses to the comments.

     SO ORDERED.


                              /s/ Richard W. Goldberg
                              Richard W. Goldberg
                              Senior Judge
Date: March 16, 2007
      New York, New York
