  United States Court of Appeals
      for the Federal Circuit
                ______________________

                  SUNPREME INC.,
                  Plaintiff-Appellant

                           v.

UNITED STATES, SOLARWORLD AMERICAS, INC.,
          Defendants-Cross-Appellants
            ______________________

           2018-1116, 2018-1117, 2018-1118
               ______________________

   Appeals from the United States Court of International
Trade in No. 1:16-cv-00171-CRK, Judge Claire R. Kelly.
                 ______________________

                Decided: May 16, 2019
                ______________________

   DIANA DIMITRIUC QUAIA, Arent Fox, LLP, Washington,
DC, argued for plaintiff-appellant. Also represented by
JOHN M. GURLEY, NANCY NOONAN.

    JUSTIN REINHART MILLER, International Trade Field
Office, Commercial Litigation Branch, Civil Division,
United States Department of Justice, New York, NY, ar-
gued for defendant-cross-appellant United States. Also
represented by REGINALD THOMAS BLADES, JR., JEANNE
DAVIDSON, JOSEPH H. HUNT, Washington, DC; MERCEDES
MORNO, United States Department of Commerce, Wash-
ington, DC.
2                             SUNPREME INC. v. UNITED STATES




   TIMOTHY C. BRIGHTBILL, Wiley Rein, LLP, Washington,
DC, argued for defendant-cross-appellant SolarWorld
Americas, Inc. Also represented by TESSA V. CAPELOTO,
LAURA EL-SABAAWI, USHA NEELAKANTAN, MAUREEN E.
THORSON.
               ______________________

      Before PROST, Chief Judge, LOURIE and CLEVENGER,
                       Circuit Judges.
    Opinion for the court filed by Circuit Judge CLEVENGER.
    Opinion dissenting-in-part filed by Chief Judge PROST.
CLEVENGER, Circuit Judge.
     Sunpreme Inc. appeals from the final decision of the
United States Court of International Trade in favor of the
United States and SolarWorld Americas, Inc., concluding
that Sunpreme’s solar modules are covered by the scope of
antidumping and countervailing duty orders on U.S. im-
ports of certain solar cells from the People’s Republic of
China. The United States and SolarWorld cross-appeal
from the same decision, which also concluded that Com-
merce could not instruct United States Customs and Bor-
der Protection to continue suspending liquidation of
Sunpreme’s solar modules entered or withdrawn from
warehouse for consumption before the scope inquiry was
initiated. Because we agree with the Court of Interna-
tional Trade that Commerce’s final scope ruling is sup-
ported by substantial evidence and that Commerce cannot
continue a suspension of liquidation that Customs lacked
authority to implement in the first place, we affirm.
                        BACKGROUND
                               I
    Solar modules convert sunlight into electricity. Many
solar modules are composed of crystalline silicon photovol-
taic (“CSPV”) cells. Those modules contain crystalline
SUNPREME INC. v. UNITED STATES                              3



silicon wafers that are processed in the presence of other
chemicals so that one portion of the wafer has a negative
charge (i.e., an n-type layer with excess electrons) and an-
other portion has a positive charge (i.e., a p-type layer with
excess electron holes). The existence of the positive and
negative layers in a single wafer creates what is known in
the industry as a “p/n junction.” J.A. 325, 466, 546, 2719.
A built-in electric field is created at and around the site of
the p/n junction due to the electric charge differential.
When sunlight strikes a CSPV cell, the light energy is ab-
sorbed, free electrons in the n-type layer attempt to unite
with holes in the p-type layer at and around the p/n junc-
tion, and the resulting energy generated by the mobilized
electrons is translated into usable electricity.
     Other solar modules are composed of thin films. Those
modules contain very slim layers of semiconductor mate-
rial, such as amorphous silicon, deposited on a substrate of
some sort, such as glass, stainless steel, or plastic. Some of
the layers are doped with chemicals that create an excess
of electron-donating impurities (i.e., n-type layers), while
other layers are doped with chemicals that create an excess
of hole-donating impurities (i.e., p-type layers). When the
n-type and p-type layers are put in contact, they form a p/n
junction, and a built-in electric field is created. The impo-
sition of an additional semiconductor substrate (i.e., intrin-
sic layer) between the doped thin film layers forms what is
known as a “p/i/n junction.” J.A. 531, 546. With respect to
p/i/n junctions, the electric field extends across the entire
intrinsic region.
    In 2011, SolarWorld filed a petition with the United
States Department of Commerce (“Commerce”) and the
United States International Trade Commission (“ITC”)
seeking the imposition of antidumping and countervailing
duties on CSPV cells imported from the People’s Republic
of China, pursuant to §§ 701 and 731 of the Tariff Act of
1930. In 2012, following an investigation, Commerce is-
sued antidumping and countervailing duty orders covering
4                            SUNPREME INC. v. UNITED STATES




those imports. Crystalline Silicon Photovoltaic Cells,
Whether or Not Assembled Into Modules, From the People’s
Republic of China: Countervailing Duty Order (“CVD Or-
der”), 77 Fed. Reg. 73,017 (Dec. 7, 2012); Crystalline Silicon
Photovoltaic Cells, Whether or Not Assembled Into Mod-
ules, From the People’s Republic of China: Amended Final
Determination of Sales at Less Than Fair Value, and Anti-
dumping Duty Order (“AD Order”), 77 Fed. Reg. 73,018
(Dec. 7, 2012). Both orders recite the same scope, which
reads in relevant part as follows:
    The merchandise covered by this order is crystal-
    line silicon photovoltaic cells, and modules, lami-
    nates, and panels, consisting of crystalline silicon
    photovoltaic cells, whether or not partially or fully
    assembled into other products, including, but not
    limited to, modules, laminates, panels and building
    integrated materials.
    This order covers crystalline silicon photovoltaic
    cells of thickness equal to or greater than 20 mi-
    crometers, having a p/n junction formed by any
    means, whether or not the cell has undergone other
    processing, including, but not limited to, cleaning,
    etching, coating, and/or addition of materials (in-
    cluding, but not limited to, metallization and con-
    ductor patterns) to collect and forward the
    electricity that is generated by the cell.
                            ....
    Excluded from the scope of this order are thin film
    photovoltaic products produced from amorphous
    silicon (a-Si), cadmium telluride (CdTe), or copper
    indium gallium selenide (CIGS).
CVD Order, 77 Fed. Reg. at 73,017; AD Order, 77 Fed. Reg.
at 73,018–19. Commerce notified United States Customs
and Border Protection (“Customs”) of the AD and CVD Or-
ders (“the Orders”) and required cash deposits or posting of
SUNPREME INC. v. UNITED STATES                             5



a bond equal to the appropriate rate in effect at the time of
entry for covered imports.
     Sunpreme manufactures solar modules in China.
Those modules contain bifacial solar cells that are com-
posed of thin films, which are several layers of amorphous
silicon less than one micron thick, deposited on both sides
of a crystalline silicon wafer. Following publication of the
Orders on December 2, 2012, Sunpreme entered its mer-
chandise as entry type “01,” meaning not subject to the Or-
ders, and continued to do so without question from
Customs until early 2015, when, for unknown reasons,
Customs began to question whether Sunpreme’s entries
were covered by the Orders. Initially unsure whether the
Orders covered Sunpreme’s entries, Customs sought advice
from one of its laboratories. On April 20, 2015, Customs
notified Sunpreme that it had decided that Sunpreme’s en-
tries are covered by the Orders, thus resulting in the sus-
pension of liquidation of Sunpreme’s entries and the
requirement that Sunpreme pay cash deposits in order for
its shipments to be released from the port’s warehouse.
Although it objected to Customs’ determination, Sunpreme
complied.
    Meanwhile, Customs continued to question whether
Sunpreme’s solar modules unambiguously fell within the
scope of the Orders. On June 3, 2015, Customs contacted
Commerce seeking guidance on whether Sunpreme’s prod-
ucts were covered by the Orders. Commerce answered that
    a determination as to whether this product is cov-
    ered by antidumping duty order A–570–979 and
    countervailing duty order C–570–980 [i.e., the Or-
    ders] would need to be made by the Department of
    Commerce in a scope ruling which can be requested
    by the importer or exporter.
Sunpreme Inc. v. United States (“Sunpreme I CIT”), 190 F.
Supp. 3d 1185, 1191–92, 1199 (Ct. Int’l Trade 2016).
6                            SUNPREME INC. v. UNITED STATES




     In a separate proceeding, Sunpreme filed a complaint
with the United States Court of International Trade
(“CIT”) under 28 U.S.C. § 1581(i), directly challenging Cus-
toms’ determination that Sunpreme’s solar modules are
subject to the Orders. Sunpreme Inc. v. United States
(“Sunpreme I PI”), 145 F. Supp. 3d 1271, 1282 (Ct. Int’l
Trade 2016) (opinion granting preliminary injunction). In
its final decision, the CIT found it undisputed that Sun-
preme’s solar modules contain layers of thin film, but that
Customs’ laboratory tests confirmed those modules also
contain crystalline silicon. Sunpreme I CIT, 190 F. Supp.
3d at 1191, 1195–96. The CIT noted that, although the Or-
ders expressly include “crystalline silicon photovoltaic
cells” within their scope and expressly exclude “thin film
photovoltaic products” from their scope, the Orders do not
define the term thin film products. Id. at 1190, 1195, 1200.
That led the CIT to characterize the scope language in the
Orders as ambiguous with respect to Sunpreme’s solar
modules. Id. at 1203. The CIT concluded, based on our
decisions in AMS Associates, Inc. v. United States, 737 F.3d
1338 (Fed. Cir. 2013), and Xerox Corp. v. United States, 289
F.3d 792 (Fed. Cir. 2002), that Customs lacked authority to
interpret the scope of Commerce’s ambiguous Orders, and
thus Customs could not determine that Sunpreme’s solar
modules are subject to those duty orders. Sunpreme I CIT,
190 F. Supp. 3d at 1202–04; accord Sunpreme I PI, 145 F.
Supp. 3d at 1283–92. We reversed on appeal because, un-
der the circumstances presented, the CIT lacked jurisdic-
tion under 28 U.S.C. § 1581(i) to entertain direct
challenges to Customs’ decision given that an alternative
administrative remedy was available. See Sunpreme, Inc.
v. United States (“Sunpreme I”), 892 F.3d 1186, 1192–94
(Fed. Cir. 2018) (“Section 1581(i) ‘may not be invoked when
jurisdiction under another subsection of § 1581 is or could
have been available, unless the remedy provided under
that other subsection would be manifestly inadequate.’”
(quoting Int’l Custom Prods., Inc. v. United States, 467 F.3d
SUNPREME INC. v. UNITED STATES                             7



1324, 1327 (Fed. Cir. 2006))). That remedy was a scope
ruling from Commerce interpreting the scope of the duty
orders. Id.
                             II
                             A
    On November 16, 2015, Sunpreme petitioned Com-
merce for a scope ruling to determine whether its solar
modules are subject to the Orders. Sunpreme contended
that the Orders do not cover its solar modules because they
do not contain CSPV cells, they do not have a p/n junction,
and they otherwise qualify for the Orders’ exclusion be-
cause they are thin film products. On December 30, 2015,
Commerce initiated a formal scope inquiry.
                             B
    After the scope inquiry was initiated, but before a final
ruling was made, Commerce issued a scope ruling in a sep-
arate proceeding deciding that Silveo, Inc.’s Triex photovol-
taic cells are subject to the Orders. Like Sunpreme’s solar
modules, the Triex cells also contain a crystalline silicon
substrate sandwiched between layers of amorphous silicon
thin films.
     Commerce’s regulations at 19 C.F.R. § 351.225(k) es-
tablish its analytical path for deciding whether certain im-
ports are covered by the scope of an antidumping or
countervailing duty order. See Shenyang Yuanda Alumi-
num Indus. Eng’g Co. v. United States, 776 F.3d 1351, 1354
(Fed. Cir. 2015). Commerce first examines the sources
listed under § 351.225(k)(1), which include “the scope lan-
guage contained in the order itself, the descriptions con-
tained in the petition, and how the scope was defined in the
investigation and in the determinations issued by Com-
merce and the ITC.” Id. Those are known as the (k)(1)
sources. If those sources are not sufficient to decide the
matter, then Commerce turns to examining the sources
listed under § 351.225(k)(2), which include the product’s
8                             SUNPREME INC. v. UNITED STATES




physical characteristics, ultimate purchasers’ expecta-
tions, the ultimate use of the product, trade channels in
which the product is sold, and the manner in which the
product is advertised and displayed. Id. Those are known
as the (k)(2) sources.
     Commerce determined that the (k)(1) sources were not
dispositive as to whether the Triex cells fell within the
scope of the Orders. It said the language of the Orders was
ambiguous and the other sources did not resolve whether
p/i/n junctions qualify as p/n junctions or whether products
containing both thin films and crystalline silicon compo-
nents qualify for the thin film exclusion. Commerce cor-
rectly concluded that the hybrid Triex cells “are neither
dispositively covered nor clearly excluded from the scope of
the Orders.” J.A. 884.
    Commerce then concluded that, based on (k)(2) sources,
the Triex cells are covered by the Orders. It said the Triex
cells contain a p/n junction formed by any means because
“a p/i/n junction is simply a type of p/n junction” in which
the electric field is extended over a wider region of the cell.
J.A. 870–71 (internal quotation marks omitted). It con-
cluded the presence of an intrinsic layer does not change
the function of the p/n junction. Moreover, Commerce ex-
plained that conventional thin film cells were designed to
avoid the use of crystalline silicon, and thus allowing prod-
ucts using crystalline silicon as an active, energy-produc-
ing component to qualify for the thin film exclusion “would
result in a physical description that would easily permit
circumvention of the scope of the Orders.” J.A. 871–72.
    Commerce placed the Triex scope ruling on the record
in the Sunpreme proceeding so that interested parties
could comment on any relevant distinctions between Sun-
preme’s solar modules and the Triex product.
SUNPREME INC. v. UNITED STATES                                9



                               C
    In July 2016, Commerce issued its final scope ruling
with respect to Sunpreme’s solar modules. Like the Triex
hybrid cells, Commerce understood that Sunpreme’s solar
modules were neither covered nor clearly excluded by the
descriptions contained in the Orders. Based solely on (k)(1)
sources, it concluded that Sunpreme’s hybrid bifacial thin
film cells are subject to the Orders. It concluded that Sun-
preme’s solar modules contain CSPV cells because they ac-
tively rely on crystalline silicon wafers to generate
electricity and absorb sunlight, just like the crystalline sil-
icon component in the Triex product. It also determined
that the CSPV cells, which include all the active, energy-
generating components such as the thin films and crystal-
line silicon wafers, are at least twenty micrometers thick.
Furthermore, Commerce decided that Sunpreme’s solar
modules contain a p/n junction because, as it said in the
Triex scope ruling, a p/i/n junction is just a form of p/n junc-
tion that does not change the function or nature of the p/n
junction in the CSPV cell. Finally, it concluded that Sun-
preme’s solar modules do not qualify for the thin film ex-
clusion because, as it said in the Triex scope ruling, the
mere presence of some thin film layers does not override
the significance of the crystalline silicon wafer and thus
cannot thereby circumvent the Orders.
     Commerce then issued instructions to Customs order-
ing it to continue suspending liquidation of Sunpreme’s so-
lar modules imported pre-scope inquiry and to begin
suspending liquidation and collecting cash deposits at the
applicable rate for any relevant products Sunpreme en-
tered or withdrew from warehouse for consumption on or
after December 30, 2015. That date is when Commerce in-
itiated the scope proceedings.
                               D
   Sunpreme filed a complaint in the CIT challenging
Commerce’s final scope ruling and its instructions to
10                          SUNPREME INC. v. UNITED STATES




Customs. It argued that Commerce’s final scope ruling is
unsupported by substantial evidence and that its instruc-
tions to Customs should not have applied retroactively to
solar modules entered before the scope inquiry was initi-
ated. The CIT upheld Commerce’s final scope ruling as in
accordance with law and supported by substantial evi-
dence, but it invalidated as contrary to law that part of
Commerce’s instructions to Customs ordering continued
suspension of liquidation for entries pre-dating the initia-
tion of the scope inquiry. Sunpreme Inc. v. United States,
256 F. Supp. 3d 1265, 1278, 1292, 1294 (Ct. Int’l Trade
2017).
    With respect to the final scope ruling, the CIT ex-
plained that substantial evidence supports each of Com-
merce’s four main determinations: that Sunpreme’s solar
modules contain CSPV cells, are at least twenty microme-
ters thick, have a p/n junction, and do not qualify for the
thin film exclusion. Id. at 1278–91. It agreed that the Or-
ders, the petition, the initial investigation, and the Triex
scope ruling provided evidentiary support for Commerce’s
decision. Id.
     With respect to Commerce’s instructions to Customs,
however, it held that it was unlawful for Commerce to or-
der continued suspension of liquidation and collection of
cash deposits for entries made before the scope inquiry was
initiated. Id. at 1291–94. The CIT held that Customs’ sus-
pension of liquidation was ultra vires because Customs
made its decision before the Sunpreme scope inquiry was
completed, at which time Customs lacked authority to in-
terpret the Orders to determine whether Sunpreme’s solar
modules fell within the scope of those Orders. Id. The CIT
again relied on AMS Associates, 737 F.3d 1338, and Xerox,
289 F.3d 792, to support its judgment that Customs lacked
authority to interpret the Orders for suspension of liquida-
tion purposes. Id. at 1292. The CIT therefore concluded
that “Commerce could not extend the suspension of liqui-
dation on entries that were not appropriately
SUNPREME INC. v. UNITED STATES                           11



administratively suspended.” Id. at 1293. It held that
Commerce only has authority to “continue” a lawful sus-
pension of liquidation. Id.
     Sunpreme now appeals the CIT’s decision upholding
Commerce’s scope ruling. The United States and Solar-
World cross-appeal the CIT’s partial invalidation of Com-
merce’s instruction to Customs to the extent that it
directed suspension of liquidation pre-dating the initiation
of the scope inquiry. We have jurisdiction to decide the ap-
peals under 28 U.S.C. § 1295(a)(5).
                       DISCUSSION
     We review CIT decisions de novo and apply anew the
same standard it used. Ad Hoc Shrimp Trade Action
Comm. v. United States, 802 F.3d 1339, 1348 (Fed. Cir.
2015); Atl. Sugar, Ltd. v. U.S., 744 F.2d 1556, 1559 n.10
(Fed. Cir. 1984). Under that standard, we “must uphold
Commerce’s determinations unless they are ‘unsupported
by substantial evidence on the record, or otherwise not in
accordance with law.’” Ad Hoc Shrimp, 802 F.3d at 1348
(quoting 19 U.S.C. § 1516a(b)(1)(B)(i)). While our review
repeats much of the work of the CIT, we do not ignore the
CIT’s informed judgment. Id. Moreover, we give substan-
tial deference to Commerce’s interpretation of its own duty
orders “because the meaning and scope of [those] orders are
issues ‘particularly within the expertise’ and ‘special com-
petence’ of Commerce.” King Supply Co. v. United States,
674 F.3d 1343, 1348 (Fed. Cir. 2012) (quoting Sandvik Steel
Co. v. United States, 164 F.3d 596, 600 (Fed. Cir. 1998)).
    A decision is supported by substantial evidence if the
evidence amounts to “more than a mere scintilla” and “a
‘reasonable mind might accept [it] as adequate to support
a conclusion.’” Ad Hoc Shrimp, 802 F.3d at 1348 (quoting
Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 217
(1938)). Commerce’s findings “may still be supported by
substantial evidence even if two inconsistent conclusions
can be drawn from the evidence.” Id.
12                            SUNPREME INC. v. UNITED STATES




    Two main issues are presented for our review. First,
Sunpreme argues that Commerce’s determination that its
solar modules are covered by the scope of the Orders is not
supported by substantial evidence. Second, the United
States and SolarWorld contend that Commerce’s instruc-
tions to Customs were not unlawful and should have been
upheld in all respects. We address those issues in turn be-
low.
                              I
    Sunpreme’s only challenge on appeal is that the CIT
incorrectly concluded that Commerce’s decision that Sun-
preme’s solar modules are covered by the Orders is sup-
ported by substantial evidence. The United States and
SolarWorld disagree.
     Commerce issues scope rulings to clarify the scope of
its antidumping and countervailing duty orders. 19 C.F.R.
§ 351.225(a). As noted above, the analysis for Commerce’s
scope rulings is governed by its regulations at 19 C.F.R.
§ 351.225. “Commerce must first examine the language of
the final order.” Mid Continent Nail Corp. v. United States,
725 F.3d 1295, 1302 (Fed. Cir. 2013). If the language is
unclear, then Commerce must turn to available (k)(1)
sources, including the petition, the initial investigation,
and any earlier determinations by Commerce and the ITC.
Id.; 19 C.F.R. § 351.225(k)(1). If the matter remains unre-
solved, Commerce must turn to available (k)(2) sources, in-
cluding the product’s physical characteristics, ultimate
purchasers’ expectations, the product’s ultimate use, the
channels of trade in which the product is sold, and the way
the product is marketed. Mid Continent, 725 F.3d at 1302;
19 C.F.R. § 351.225(k)(2).
    While “review of the petition and the investigation may
provide valuable guidance as to the interpretation of the
final order,” those sources “cannot substitute for language
in the order itself.” Duferco Steel, Inc. v. United States, 296
F.3d 1087, 1097 (Fed. Cir. 2002). The scope of an order can
SUNPREME INC. v. UNITED STATES                           13



encompass certain “merchandise only if [the order] con-
tain[s] language that specifically includes the subject mer-
chandise or may be reasonably interpreted to include it.”
Id. at 1089. Similarly, “merchandise facially covered by an
order may not be excluded from the scope of the order un-
less the order can reasonably be interpreted so as to ex-
clude it.” Mid Continent, 725 F.3d at 1301 (emphasis
omitted). At bottom, while Commerce has “substantial
freedom to interpret and clarify its antidumping [and coun-
tervailing duty] orders,” it may not do so in a way that
changes them. Id. at 1300 (quoting Novosteel SA v. United
States, 284 F.3d 1261, 1269 (Fed. Cir. 2002)).
    Sunpreme attacks all four parts of Commerce’s scope
determination. First, it argues its solar modules are not
CSPV cells. Second, it contends they are far less than
twenty micrometers thick. Third, it asserts they do not
contain a p/n junction. Last, it argues they qualify for the
Orders’ thin film exclusion. Because none of Sunpreme’s
arguments is persuasive, we conclude, as the CIT did, that
Commerce’s final scope ruling is supported by substantial
evidence.
                             A
    Sunpreme argues that substantial evidence does not
support Commerce’s conclusion that its solar modules con-
tain CSPV cells. It argues that Commerce’s decision to
treat any product relying on crystalline silicon to generate
electricity as a CSPV cell is contrary to law because it in-
troduces criteria into the scope of the Orders that are not
covered by their plain language or any (k)(1) sources.
Moreover, it contends that Commerce was wrong when it
stated that the crystalline silicon wafers in Sunpreme’s so-
lar modules play a primary role in the modules’ generation
of electricity. Finally, Sunpreme asserts that its crystal-
line silicon wafers are not doped and thus can produce no
more electricity than a sliver of river rock.
14                            SUNPREME INC. v. UNITED STATES




    The United States and SolarWorld respond that Com-
merce correctly concluded that Sunpreme’s solar modules
contain CSPV cells. They identify record evidence they al-
lege shows that Sunpreme’s solar modules contain a doped
crystalline silicon substrate that serves a primary role in
absorbing sunlight, which according to the Triex scope rul-
ing is enough to conclude that those modules contain CSPV
cells. They argue Sunpreme simply wishes for us to re-
weigh the evidence and reach a different conclusion.
     We agree with the United States and SolarWorld that
substantial evidence supports Commerce’s conclusion that
Sunpreme’s solar modules contain CSPV cells. Commerce
determined that a CSPV cell is a solar product that relies
on crystalline silicon to generate electricity. That is a rea-
sonable interpretation of the Orders based on their plain
language and (k)(1) sources. The Orders expressly cover
“crystalline silicon photovoltaic cells” without much rele-
vant further limitation. CVD Order, 77 Fed. Reg. at
73,017; AD Order, 77 Fed. Reg. at 73,018. The petition
states that “CSPV cells . . . are made from crystalline sili-
con” and “convert the energy of sunlight directly into elec-
tricity, by the photovoltaic effect.”       J.A. 237.     And
Commerce determined in the Triex scope ruling that the
basic purpose of solar cells as opposed to blank crystalline
silicon wafers is electricity generation, and thus a crystal-
line silicon substrate that contributes to energy generation
when the device is struck by sunlight constitutes a CSPV
cell.
     The record supports Commerce’s decision that Sun-
preme’s solar modules rely on crystalline silicon in the elec-
tricity generation process. In the Triex scope ruling,
Commerce explained that traditional CSPV cells contain a
“semi-conduction and photon collection region . . . between
the positively and negatively doped layers of the wafer it-
self,” and that the crystalline silicon wafer in the Triex cells
serves the same purpose because “the wafer is part of the
‘circuit’ between the p/n layers of thin film, creating a
SUNPREME INC. v. UNITED STATES                             15



region of semi-conduction and photon collection between
the thin film layers.” J.A. 871. In both instances, the wafer
contributes to “electricity generation between the posi-
tively and negatively doped regions of the cell.” J.A. 871.
It is active because it is slightly doped and plays a critical
role in the energy-generating function of the cells.
    The same is true for Sunpreme’s solar modules. Sun-
preme said that “the role of the wafer substrate [in its solar
modules] is primarily to provide a light absorbing material
and a stable mechanical/thermal interface for the amor-
phous silicon cells.” J.A. 4575. It also admitted that its
crystalline silicon wafers are naturally slightly doped,
meaning they have a slight inherent p-type or n-type ori-
entation. J.A. 4574, 4773. And Sunpreme has not identi-
fied any evidence that, given those characteristics, the
crystalline silicon wafers in its solar modules do not oper-
ate just like the wafers in the Triex cells, which formed part
of the energy-generating circuit by “creating a region of
semi-conduction and photon collection between the thin
film layers.” It was thus reasonable for Commerce to con-
clude that Sunpreme’s solar modules contain CSPV cells
because the active crystalline silicon wafers in those prod-
ucts absorb sunlight, are slightly doped, and largely serve
the same function as the crystalline silicon in traditional
CSPV cells.
    We are not persuaded by Sunpreme’s arguments to the
contrary. Commerce’s determination that CSPV cells are
those that rely on crystalline silicon to generate electricity
does not add a new criterion to the scope of the Orders be-
cause the scope language can reasonably bear, and the
(k)(1) sources reasonably support, Commerce’s interpreta-
tion. Whether the crystalline silicon wafer is doped or acts
as a primary solar absorber are not new criteria, but in-
stead serve as exemplary guideposts for identifying the
purpose and function of the wafer, which is to contribute to
the generation of energy in the modules. Additionally,
even if the crystalline silicon wafers in Sunpreme’s solar
16                            SUNPREME INC. v. UNITED STATES




modules are not the primary solar absorbers in the cells,
Commerce could have reasonably concluded that it is
enough that the wafers provide for and are primarily used
for absorbing sunlight. Finally, while Sunpreme would
have everyone believe that its crystalline silicon wafers are
inert, useless slivers of river rock that play no role in the
energy-production process, the wafers are naturally
slightly doped and, when used in conjunction with the rest
of the solar module’s components, play a critical role in the
generation of energy. J.A. 245–55, 304–06, 325–27, 871.
We therefore agree with the CIT that substantial evidence
supports Commerce’s conclusion that Sunpreme’s solar
modules contain CSPV cells.
                               B
    Sunpreme argues that its solar modules do not contain
cells that are at least twenty micrometers thick. It argues
the thin film layers are far less than twenty micrometers
thick and the much thicker crystalline silicon substrate
must be excluded from the calculation given that it is not
an active part of the devices. Because we uphold Com-
merce’s conclusion that the crystalline silicon wafer in Sun-
preme’s solar modules are indeed an active part of those
devices, Sunpreme’s thickness argument necessarily fails.
We agree with the CIT that Commerce’s ruling that Sun-
preme’s solar modules have cells that are at least twenty
micrometers thick is supported by substantial evidence.
                               C
    Sunpreme also argues that substantial evidence does
not support Commerce’s conclusion that its solar modules
have a p/n junction. It contends that the term “p/n junc-
tion” as used in the Orders does not require interpretation
because it unambiguously refers to p-type layers directly
adjacent to or abutting n-type layers formed within the
crystalline silicon wafer itself. It asserts that its solar mod-
ules do not have a p/n junction because the thin films form
SUNPREME INC. v. UNITED STATES                             17



p/i and i/n junctions outside the wafer substrate and a p/i/n
junction is not a p/n junction.
    The United States and SolarWorld counter that Com-
merce correctly concluded that Sunpreme’s solar modules
contain a p/n junction. They argue that the Triex scope
ruling is a (k)(1) source that supports treating p/i/n junc-
tions as a subset of p/n junctions, and that the form of junc-
tion should not be elevated over its function. They also
contend that neither the plain language of the Orders nor
any (k)(1) sources limits the location of the p/n junction to
inside the crystalline silicon component.
    We agree with the United States and SolarWorld that
substantial evidence supports Commerce’s conclusion that
Sunpreme’s solar modules contain a p/n junction. The lan-
guage of the Orders, as well as several (k)(1) sources, sup-
port Commerce’s determination that a p/i/n junction is a
type of p/n junction because the function and nature of the
junction, which is the formation of an electric field, is un-
changed by introducing an intrinsic crystalline silicon
layer between positive and negative thin films. The Orders
provide that covered merchandise must contain “a p/n junc-
tion formed by any means . . . .” CVD Order, 77 Fed. Reg.
at 73,017; AD Order, 77 Fed. Reg. 73,018. Their express
language in no way limits the location, form, or method of
production of the p/n junction.
    The original petition describes the p/n junction as “an
interface of a p-type semiconductor and an n-type semicon-
ductor that is usually formed by dopant additions to create
an intrinsic or extrinsic charge state.” J.A. 237–38. It
states the junction could be heterogenous with various sec-
tions of the substrate responding differently to sunlight,
homogenous, or patterned. J.A. 238. It also notes that the
p/n junction could be formed by several means and recites
a non-exhaustive list that includes dopant diffusion, ion
implanation, epitaxial growth, and bonding of dissimilar
materials. J.A. 238 n.14. SolarWorld later revised its
18                            SUNPREME INC. v. UNITED STATES




petition to state that the duty orders cover cells “having a
p/n junction formed by any means,” without reference to a
specific list of possible formation methods. J.A. 816. So-
larWorld explained that its change was meant to clarify
that the p/n junction could be formed in any number of
ways and at any one of numerous points in the manufac-
turing process of the cells. Again, like the language of the
Orders, the petition does not limit the location, form, or
method of production of the p/n junction.
     The Triex scope ruling states that a p/i/n junction
simply is a type of p/n junction because it is one of many
possible means of forming the necessary electric field. That
is, the intrinsic crystalline silicon substrate connects the p-
type and n-type thin film layers so that the cell functions
in the same way as p/n junctions formed by other means.
The intrinsic layer just “‘extends the electric field over a
wider region of the cell’ (i.e., the crystalline silicon wafer
region . . .).” J.A. 871 (citation omitted). Additionally, in
the Triex scope ruling, Commerce soundly and logically re-
jected the argument that the crystalline wafer is inert and
thus plays no role in the electricity generation process be-
cause, if that were true, the substrate could be replaced
with less expensive material than crystalline silicon that
would clearly fall outside the scope of the Orders. There-
fore, the language of the Orders and the (k)(1) sources sup-
port Commerce’s interpretation.
    Here, Sunpreme’s solar modules contain a p/i/n junc-
tion formed by p-type and n-type thin films sandwiched
atop both sides of an intrinsic crystalline silicon wafer.
Substantial evidence therefore supports Commerce’s con-
clusion that Sunpreme’s solar modules contain a p/n junc-
tion, which encompasses p/i/n junctions.
    Sunpreme’s arguments to the contrary do not convince
us otherwise. First, the term “p/n junction” is not unam-
biguously defined in the Orders. The petition’s use of the
word “interface” to describe the boundary between the p-
SUNPREME INC. v. UNITED STATES                              19



type and n-type layers that creates the p/n junction does
not necessarily mean that the layers must be in direct con-
tact without the presence of an intervening intrinsic layer.
CVD Order, 77 Fed. Reg. at 73,017; AD Order, 77 Fed. Reg.
at 73,018. Additionally, the fact that glossaries define both
p/n and p/i/n junctions does not mean that the two are mu-
tually exclusive, for the same reason that a dictionary’s
separate definitions for flower and tulip do not connote ab-
solute distinctiveness.
     Second, Sunpreme is incorrect in its insistence that the
p/n junction must be located within the crystalline silicon
wafer itself. Neither the language of the Orders nor any
(k)(1) source limits the location of the p/n junction, and
Commerce expressly rejected the same argument in its ear-
lier Triex scope ruling. The fact that the petition originally
included a list of means that was later removed is unhelp-
ful to Sunpreme’s argument because the removal broadens
the methods of formation that previously were delineated
in a non-exhaustive list. Furthermore, a SolarWorld rep-
resentative’s statement during the ITC conference that the
p/n junction is created within the silicon base material does
not conflict with a junction formed by p-type thin films, n-
type thin films, and an intrinsic substrate relating the two.
The p/n junction is in all those components, including the
base material itself, and cannot be seen.
     Third, we are not persuaded by Sunpreme’s attempt to
distinguish the Triex scope ruling based on perceived dif-
ferences in the cells. Both Sunpreme’s solar modules and
the Triex cells have p/i/n junctions formed by thin films laid
atop a crystalline silicon substrate, wherein the crystalline
silicon substrate facilitates the creation of an electric field
between the thin film layers. Any other differences be-
tween the cells, including the location of the junction or the
method of formation, do not bear on our analysis for the
reasons stated above.
20                           SUNPREME INC. v. UNITED STATES




     Finally, Sunpreme’s effort to analogize the facts of this
case to the facts in Duferco is fruitless. In Duferco, Com-
merce interpreted a floor plate product with patterns in
nonrectangular cross-sections achieved from a rolling pro-
cess to be within the scope of an order covering flat-rolled
products of nonrectangular cross-section where the cross-
section was achieved only after rather than during the roll-
ing process. 296 F.3d at 1095. We held that Commerce’s
interpretation was unlawful because it was completely un-
tethered from the language of the order. Id. at 1095, 1098.
We reasoned that merchandise may only be included
within an order’s scope if that order contains language spe-
cifically targeting the subject merchandise or capable of be-
ing reasonably interpreted to include such merchandise.
Id. at 1089. The same facts do not exist here. Unlike the
duty order in Duferco, which did not include any language
that could act as a hook for the subject merchandise, the
Orders expressly contemplate products having a p/n junc-
tion formed by any means, which for the reasons stated
above can be reasonably interpreted to include p/i/n junc-
tions.
    We therefore agree with the CIT that substantial evi-
dence supports Commerce’s conclusion that Sunpreme’s so-
lar modules contain a p/n junction.
                              D
    Sunpreme argues that Commerce’s ruling that Sun-
preme’s solar modules do not qualify for the thin film ex-
clusion in the Orders is not supported by substantial
evidence. It argues that Commerce rewrote the scope of
the exclusion by interpreting it as not covering solar prod-
ucts containing active crystalline silicon wafers because
the language of the exclusion and (k)(1) sources do not sug-
gest discriminating among products based on the thin film
substrate. It contends that its solar modules are thin films
based on their industry certification, their size, and the
way in which they are produced. Finally, Sunpreme
SUNPREME INC. v. UNITED STATES                             21



asserts that SolarWorld’s statements during the ITC con-
ference demonstrate the scope of the exclusion is broader
than Commerce’s interpretation because there is no over-
lap between thin films and crystalline silicon cells, and the
only competitive injury contemplated by the industry was
with respect to crystalline silicon products rather than thin
films.
    The United States and SolarWorld respond that Com-
merce correctly interpreted the thin film exclusion as not
extending to Sunpreme’s solar modules. They argue that
the language of the exclusion in the Orders is capable of
bearing a narrow interpretation and (k)(1) sources support
that understanding. Additionally, they encourage us to
discount the value of the industry certifications Sunpreme
identifies with respect to its solar modules because those
modules are certified as both crystalline silicon and thin
film products. Finally, SolarWorld argues that Sunpreme
misconstrues its representative’s statements at the ITC
conference.
      Substantial evidence supports Commerce’s conclusion
that Sunpreme’s solar modules do not qualify for the thin
film exclusion. It was a reasonable interpretation of the
Orders, based on their plain language and (k)(1) sources,
for Commerce to determine that the thin film exclusion
does not protect those products that have both thin films
and an active crystalline silicon wafer. The Orders provide
that the covered merchandise “is crystalline silicon photo-
voltaic cells” and the excluded merchandise includes “thin
film photovoltaic products produced from amorphous sili-
con (a-Si), cadmium telluride (CdTe), or copper indium gal-
lium selenide (CIGS).” CVD Order, 77 Fed. Reg. at 73,017;
AD Order, 77 Fed. Reg. at 73,018. The petition clearly
states that thin film products “do not use crystalline silicon
. . . .” J.A. 551. And the ITC asserted in its investigation
that “CSPV products and thin film products have different
chemical compositions and physical characteristics that af-
fect the inherent properties of each and may limit their
22                           SUNPREME INC. v. UNITED STATES




interchangeability,” making particular note that tradi-
tional CSPV cells are made from crystalline silicon and are
more efficient while thin films are typically made of amor-
phous silicon or non-silicon materials. J.A. 309, 326–27.
The ITC also determined in its investigation that thin film
products tend to use glass substrates or a flexible substrate
such as stainless steel or plastic. Those sources strongly
suggest that thin films do not incorporate crystalline sili-
con.
     Moreover, in the Triex scope ruling, Commerce distin-
guished CSPV cells from thin film products for purposes of
the Orders. Relying on the petition and the ITC’s initial
investigation, Commerce said conventional thin films were
designed to avoid the use of crystalline silicon and instead
use a-Si, CdTe, or CIGS on a non-functional substrate like
glass. It determined that the Triex cells do not qualify for
the thin film exclusion because they “contain a crystalline
silicon component that contributes to their photovoltaic
function.” J.A. 871.
    Because there is no dispute that Sunpreme’s solar mod-
ules contain crystalline silicon, and the evidence demon-
strates that the crystalline silicon plays an active role in
the cells energy generation processes as stated above, Sun-
preme’s solar modules do not qualify for the thin film ex-
clusion. We agree with the CIT’s decision to uphold
Commerce’s interpretation of the Orders because allowing
any product that contains any thin film layer to qualify for
the thin film exclusion “would result in a physical descrip-
tion that would easily permit circumvention of the scope of
the Orders.” J.A. 872.
    Sunpreme’s arguments trying to chip away at Com-
merce’s reasonable conclusion are unpersuasive. First,
Commerce’s interpretation does not rewrite the scope of the
thin film exclusion by defining it based on the substrate
used, but instead its interpretation reasonably construes
the exclusion to prevent it from covering products that are
SUNPREME INC. v. UNITED STATES                             23



drawn to the central focus of the Orders: active crystalline
silicon. Second, although SolarWorld’s representative
stated at the ITC conference that it was not concerned with
certain hybrid solar cell products that used both crystalline
silicon wafers and amorphous silicon thin film layers, he
noted that his lack of concern was merely because those
hybrid products were limited in availability and produc-
tion. Earlier in the conference, SolarWorld stressed that
thin film technologies are “completely separate” from crys-
talline silicon products and the two do not overlap in their
application. J.A. 370. Last, even if Sunpreme’s solar mod-
ules are certified by the International Electrotechnical
Commission as thin film products, we are not persuaded
that the scope of the Orders is dictated by or otherwise
tethered to such industry certifications. We therefore con-
clude that substantial evidence supports Commerce’s de-
termination that Sunpreme’s solar modules are not
excluded thin films.
    In sum, we agree with the CIT that substantial evi-
dence supports Commerce’s final scope ruling. Sunpreme’s
solar modules are covered by the Orders.
                              II
    We now turn to the cross-appeal filed by the United
States and SolarWorld. After April 20, 2015, Sunpreme
was required to make cash deposits with Customs to free
its solar modules for entry into the stream of U.S. com-
merce. That requirement was triggered by Customs’ inter-
pretation of the Orders to cover Sunpreme’s solar modules,
resulting in the suspension of liquidation for those im-
ported products. All of Sunpreme’s subject solar modules
imported after April 20, 2015, and until the publication of
Commerce’s scope decision were subject to suspension of
liquidation.
    Under the clear and unambiguous terms of the rele-
vant regulation, 19 C.F.R. § 351.225(l)(3), when Commerce
issues a final scope ruling “to the effect that the product in
24                            SUNPREME INC. v. UNITED STATES




question is included within the scope of the order, any sus-
pension of liquidation under paragraph (l)(1) or (l)(2) will
continue.” Subsection (l)(1) provides that when Commerce
conducts a scope inquiry as it did in this case “and the prod-
uct in question is already subject to suspension of liquida-
tion, that suspension of liquidation will be continued”
pending the final scope ruling, as it did in this case. If the
final scope ruling is that the product in question was not
within the scope of the order, subsection (l)(3) provides that
Commerce will order any previous suspension of liquida-
tion ended and instruct Customs to refund cash deposits
already made or release any bonds relating to the product.
If there has been no previous suspension of liquidation, and
the final scope ruling is that the product is covered by the
order, then Commerce is commanded by subsection (l)(3) to
instruct Customs to suspend liquidation and collect the
requisite cash deposit “for each unliquidated entry of the
product entered, or withdrawn from warehouse, for con-
sumption on or after the date of initiation of the scope in-
quiry.”
     If, as the CIT held, the suspensions of liquidation in
this case beginning in April of 2015 were ultra vires acts by
Customs, and therefore of no legal effect, then it is clear
that no suspensions of liquidation existed to be “continued”
during the scope inquiry in this case under subsection
(l)(1). 1 It is equally clear that with no legally effective on-
going suspensions of liquidation during the scope inquiry,
at the end of the inquiry, Commerce faced, under subsec-
tion (l)(3), the situation “where there has been no



     1  As recognized in Sunpreme I, when Customs acts
within its ministerial powers and suspends liquidation
without exercising Commerce’s authority to interpret anti-
dumping and countervailing duty orders, its actions are
lawful and continue during a scope inquiry. 892 F.3d at
1194 n.1.
SUNPREME INC. v. UNITED STATES                           25



suspension of liquidation.” In that instance, Commerce’s
command to Customs to begin suspension of liquidation is
limited to products “entered on or after the date of initia-
tion of the scope inquiry.” In this case, the scope inquiry
was initiated on December 30, 2015, and Sunpreme seeks
the refund of the cash deposits it was required to make be-
fore that date. So the question before us is whether the
CIT, relying on our precedent, correctly determined that
Customs acted beyond its authority when it interpreted the
Orders to cover Sunpreme’s hybrid solar modules.
                             A
     When Commerce decides, after an initial investigation,
to issue an antidumping or countervailing duty order, it is-
sues an order to Customs, giving Customs authority to sus-
pend liquidation on entries of the product covered by the
antidumping or countervailing duty order. Customs is
thereafter expected to inspect imported products to deter-
mine if they are covered by the duty order. As we explained
in Xerox, “Customs makes factual findings to ascertain
what the merchandise is, and whether it is described in an
order.” 289 F.3d at 794. When, based on examination of
the product in question and the plain meaning of the words
in an antidumping or countervailing duty order, there is no
question that the product is either within or not within the
scope of the order, Customs either suspends liquidation
and collects cash deposits, or passes the entry without sus-
pending liquidation and collecting cash deposits. In either
instance, Customs performs what we have described as its
assigned and lawful ministerial duties. Mitsubishi Elecs.
Am., Inc. v. United States, 44 F.3d 973, 977 (Fed. Cir.
1994); see also Xerox, 289 F.3d at 794. In either instance,
Customs lawfully performs its ministerial duties because
the duty order in question is not ambiguous as to whether
it applies to the particular imported products. Xerox, 289
F.3d at 795.
26                            SUNPREME INC. v. UNITED STATES




     In other circumstances, when it is unclear from appli-
cation of facial language of an antidumping or countervail-
ing duty order to factual inspection of imported product
that the product is within or without the scope of the rele-
vant order, Commerce provides the mechanism to resolve
the question. That mechanism is the scope inquiry proce-
dure provided by 19 C.F.R. § 351.225. Our precedent
makes clear that when it is unclear whether products are
within the scope of a duty order, “Commerce ‘should in the
first instance decide whether an antidumping order covers
particular products,’ because ‘the order’s meaning and
scope are issues particularly within the expertise of that
agency.’” Xerox, 289 F.3d at 795 (quoting Sandvik Steel,
164 F.3d at 600). And to protect Commerce’s administra-
tive authority, Customs cannot make such determinations.
Id. We also recognized the superior institutional compe-
tence of Commerce over Customs for antidumping and
countervailing duty matters in Mitsubishi Electronics, not-
ing Customs’ merely ministerial duties, and holding that
“Customs cannot ‘modify . . . [Commerce’s] determinations,
their underlying facts, or their enforcement.’” 44 F.3d at
977 (quoting Royal Bus. Machs., Inc. v. United States, 507
F. Supp. 1007, 1014 n.8 (Ct. Int’l Trade 1980), aff’d, 669
F.2d 692 (C.C.P.A. 1982)).
     Although Commerce, unlike Customs, can interpret
the scope of unclear or ambiguous duty orders, our case law
is clear that even Commerce cannot order suspension of liq-
uidation of merchandise covered by such orders before the
scope inquiry was initiated. In AMS Associates, Commerce
instructed Customs to suspend liquidation of an importer’s
laminated woven sacks from China, regardless of the fab-
ric’s country of origin, that were entered or withdrawn from
warehouse for consumption starting on a date that pre-
ceded Commerce’s initiation of its scope inquiry. 737 F.3d
at 1340–41. We held that Commerce cannot order suspen-
sion of liquidation and collection of cash deposits retroac-
tively (i.e., pre-scope inquiry) in instances where it clarifies
SUNPREME INC. v. UNITED STATES                             27



the unclear or ambiguous scope of an existing duty order.
Id. at 1344. We reasoned that, under § 351.225(l), Com-
merce can only act prospectively when the scope of an order
is unclear or ambiguous, and thus retroactive authoriza-
tion of suspension of liquidation is prohibited. Id.
     Based on our existing case law, we can see no reason
why Customs, which we have recognized plays a ministe-
rial role in the liquidation process and lacks the authority
in the first instance to interpret the scope of unclear or am-
biguous duty orders, should have more power than its
charging agency—Commerce—to order suspension of liqui-
dation.
     Customs cannot clarify or interpret duty orders in the
first instance. Customs can determine if merchandise is
covered by a clear or unambiguous duty order and suspend
liquidation before a scope inquiry because such actions do
not require clarification or interpretation of the duty order.
Commerce can continue that suspension of liquidation fol-
lowing its own assessment. But Commerce cannot order
suspension of liquidation pre-scope inquiry for merchan-
dise possibly subject to an unclear or ambiguous duty or-
der. We now hold that neither can Customs because
allowing it to do so would permit Customs in the first in-
stance to clarify or interpret the ambiguity in the duty or-
der so as to place merchandise within its scope. Because
Customs lacks authority to suspend liquidation under
those narrow circumstances, certainly Commerce cannot
continue an ultra vires suspension of that kind.
                              B
    Ambiguity is the line that separates lawful ministerial
acts from unlawful ultra vires acts by Customs. This is not
a close case. The Orders in this case cover certain solar
modules and expressly exclude others, without providing a
definition of the class expressly excluded. Sunpreme’s so-
lar modules are hybrid products, mixing characteristics of
the included and excluded solar cells. Sunpreme imported
28                          SUNPREME INC. v. UNITED STATES




its products for a considerable time as non-dutiable prod-
ucts, without question from SolarWorld, the competing
company that triggered the anti-dumping investigation in
the first place, or Customs, which presumably was dili-
gently performing its responsibility to test Sunpreme’s
products against the plain language of the Orders. Early
in 2015, Customs had cause to rethink its ministerial deci-
sions that permitted the products to enter duty free. But
it needed interpretative help to change its mind and begin
suspension of liquidation. And even after its change of
mind, it asked Commerce for help in deciding whether Sun-
preme’s solar modules fell within the Orders, and Com-
merce responded that only a scope inquiry could answer
Customs’ question. Then when Commerce dug into the
scope inquiry, it agreed that the Orders are ambiguous as
to whether they reach Sunpreme’s products. Only after
Commerce clarified the scope of the Orders did Sunpreme
have a rationale as to why the Orders covered its solar
modules.
                             C
    As a matter of policy, the United States and Solar-
World severely counsel us that “it is important not to over-
look the adverse consequences” that may flow from
concluding Commerce cannot continue a suspension of liq-
uidation irrespective of Customs’ authority ab initio to in-
stitute the suspension. U.S. Cross-Appellant Br. (“U.S.
Red Br.”) 49–50; accord SolarWorld Cross-Appellant Br.
(“SW Red Br.”) 21–22. They argue that our decision will
encourage importers to delay or avoid requesting scope rul-
ings from Commerce to evade antidumping and counter-
vailing duties and to “simply use any perceived ambiguity
in scope language as a shield against suspension.” SW Red
Br. 21–22; accord U.S. Red Br. 49–50. SolarWorld adds
that domestic interested parties are not in a good position
to police such undesirable activity because they rarely
know whether an importer is entering products with or
SUNPREME INC. v. UNITED STATES                           29



without paying potentially applicable duties. The facts of
this case do not warrant these fears.
    As for a solution to their policy concerns, the United
States and SolarWorld urge us to bless unlawful action by
Customs by elevating the roles of Customs from ministerial
to substantive while collecting duties. The United States
and SolarWorld have no sound counter to the demands of
our precedent, which bars Customs from asserting inter-
pretive power over antidumping and countervailing duty
orders. The scope inquiry in this case, answered by Com-
merce’s interpretation of the duty order, proves beyond
cavil that the duty order here is ambiguous. Only at the
conclusion of the scope inquiry could it be said that Sun-
preme’s solar modules fall within the scope of an ambigu-
ous duty order. The law recognizes this fact, but the United
States and SolarWorld insist that we vest Customs with
the authority to perform Commerce’s job. This panel can-
not change the law to suit the policy concerns noted by the
United States and SolarWorld.
    As Sunpreme points out, the holding in this case ap-
plies only in a narrow set of circumstances because, when
the duty order is clear and unambiguous, Customs can sus-
pend liquidation of subject merchandise pre-scope inquiry
and Commerce is free to continue that suspension. See
AMS Assocs., 737 F.3d at 1344 (“Importers cannot circum-
vent antidumping orders by contending that their products
are outside the scope of existing orders when such orders
are clear as to their scope. Our precedent evinces this un-
derstanding.”). But even when the order is ambiguous,
there are other options available to the Government that
would prevent importers from evading potentially applica-
ble duties. When confronted with a scope question, nothing
prevents Customs from picking up the phone and calling
Commerce, or sending Commerce an instant message, en-
couraging it to self-initiate a scope inquiry. 19 C.F.R.
§ 351.225(b). Indeed, that is precisely what Customs did in
30                           SUNPREME INC. v. UNITED STATES




this case, but Commerce did not timely respond by self-in-
itiating a scope inquiry.
                             D
     In this case, after Commerce issued its final scope rul-
ing concluding that Sunpreme’s solar modules are subject
to the Orders, it instructed Customs to suspend liquidation
of the modules entered or withdrawn from warehouse on or
after the date of initiation of the scope inquiry and to con-
tinue suspending liquidation of the modules entered or
withdrawn from warehouse before that time. We agree
with the CIT that the latter part of Commerce’s instruc-
tions to Customs is invalid.
    From the start and throughout this appeal, the parties
have disputed the scope of the Orders. Furthermore, it
cannot be seriously disputed that, at the time Customs sus-
pended liquidation and the scope inquiry was later initi-
ated, the scope of the Orders was ambiguous with respect
to Sunpreme’s solar modules. Cf. Sunpreme I, 892 F.3d at
1192 (stating that the parties dispute the scope and appli-
cation of the Orders). 2



     2   That we, as legislators or administrators, might
prefer to make the importer pay up front even where an
antidumping or countervailing duty order is ambiguous is
not for us to say. The question is what the law demands.
We think the law is clear that Customs lacks interpretive
authority, where, as here, the Orders are ambiguous. The
rule suggested by the dissent, namely that Customs’ behav-
ior is defined one way when the appealed issue is jurisdic-
tion (in which case Customs lacks interpretative
authority), but another when the appealed issue is a ques-
tion of scope (Customs has interpretative authority), is un-
availing. Customs takes an action, which we review on the
merits or in a jurisdictional challenge. The nature of Cus-
toms’ action does not change depending on the challenge.
SUNPREME INC. v. UNITED STATES                          31



                       CONCLUSION
     For the reasons stated above, we affirm the CIT’s con-
clusion that Commerce’s final scope ruling placing Sun-
preme’s solar products within the ambit of the Orders is
supported by substantial evidence. We also affirm the
CIT’s determination that Commerce’s instructions to Cus-
toms are invalid to the extent that they command continu-
ation of suspension of liquidation and collection of cash
deposits on Sunpreme’s solar modules entered or with-
drawn from warehouse for consumption before Commerce
initiated its scope inquiry on December 30, 2015.
                      AFFIRMED
                          COSTS
   No costs.
  United States Court of Appeals
      for the Federal Circuit
                 ______________________

                   SUNPREME INC.,
                   Plaintiff-Appellant

                            v.

UNITED STATES, SOLARWORLD AMERICAS, INC.,
          Defendants-Cross-Appellants
            ______________________

            2018-1116, 2018-1117, 2018-1118
                ______________________

   Appeals from the United States Court of International
Trade in No. 1:16-cv-00171-CRK, Judge Claire R. Kelly.
                 ______________________

PROST, Chief Judge, dissenting-in-part.
    I agree with the Majority’s well-reasoned analysis of
the appeal in this case. I respectfully dissent, however,
from the Majority’s affirmance of the cross-appeal. For the
reasons explained below, I would reverse and hold that
Commerce’s instruction to continue suspension of liquida-
tion was proper.
     The practical difference between the Majority’s holding
and my view is this: for the period between April 20, 2015
(the approximate date Customs began collecting cash de-
posits from Sunpreme) and December 30, 2015 (the date
the scope inquiry was initiated), I believe Sunpreme should
be required to pay antidumping duties because, as the Ma-
jority holds today, the products Sunpreme imported during
2                            SUNPREME INC. v. UNITED STATES




that period were subject to antidumping and countervail-
ing duty orders. But under the Majority’s holding as to the
cross-appeal, instead of paying the duties owed for that
time period, Sunpreme will instead receive a refund for the
cash deposits it paid. Sunpreme is therefore rewarded for
its delay in filing a request for a scope inquiry. This cannot
be correct.
                              I
    Commerce issued the antidumping and countervailing
duty orders (“AD/CVD orders”) at issue in this case in De-
cember 2012. Despite the existence of those orders, Sun-
preme had been entering its products as type 01 entries,
meaning that the entries were not subject to antidumping
and countervailing duties. In 2015, Customs began to
question Sunpreme’s identification of its products as type
01 entries. Customs determined that the products were in-
deed covered by the AD/CVD orders in this case and di-
rected Sunpreme to enter its products as type 03 entries,
which require payment of antidumping and countervailing
duty cash deposits. Only after Customs forced Sunpreme’s
hand in this way did Sunpreme eventually file a request
for a scope inquiry to determine whether its products were
within the scope of the AD/CVD orders.
    After Commerce issued its final ruling in the scope in-
quiry, which confirmed that Sunpreme’s products were
within the scope of the AD/CVD orders (i.e., that Customs
was correct), Commerce instructed Customs to (a) continue
suspension of liquidation and collection of cash deposits as
to entries that were already suspended; and (b) begin sus-
pension of liquidation (and collection of cash deposits) for
SUNPREME INC. v. UNITED STATES                              3



entries that were not already suspended, beginning on the
date the scope inquiry was initiated. 1 J.A. 4692, 4697.
    These two instructions were in accordance with the rel-
evant Commerce regulation. As relevant here, when Com-
merce conducts a scope inquiry “and the product in
question is already subject to suspension of liquidation,
that suspension of liquidation will be continued, pending a
preliminary or a final scope ruling, at the cash deposit rate
that would apply if the product were ruled to be included
within the scope of the order.” 19 C.F.R. § 351.225(l)(1).
Once Commerce issues a final scope ruling, “any suspen-
sion of liquidation under paragraph (l)(1) or (l)(2) of this
section will continue.” Id. § 351.225(l)(3).
    The Majority does not hold that Commerce violated
§ 351.225(l) or any other regulation. Indeed, it could not,
as Commerce followed those procedures to the letter. In-
stead, the Majority goes a step further, holding that Com-
merce could not “continue” suspension of liquidation
because the original act of suspending liquidation and col-
lecting cash deposits was, in the Majority’s view, an ultra
vires act by Customs. Majority Op. at 24, 25.
     This court has not directly addressed the contours of
Customs’ authority regarding the application and enforce-
ment of AD/CVD orders. Most of our commentary on Cus-
toms’ role has been in the context of analyzing various
jurisdictional issues. See Sunpreme Inc. v. United States,
892 F.3d 1186 (Fed. Cir. 2018); Xerox Corp. v. United
States, 289 F.3d 792 (Fed. Cir. 2002); Sandvik Steel Co. v.
U.S., 164 F.3d 596 (Fed. Cir. 1998); Mitsubishi Elecs. Am.,
Inc. v. United States, 44 F.3d 973 (Fed. Cir. 1994). In one
of those cases, we explained that once Commerce issues an



    1   “Liquidation means the final computation or ascer-
tainment of duties on entries for consumption or drawback
entries.” 19 C.F.R. § 159.1.
4                            SUNPREME INC. v. UNITED STATES




antidumping or countervailing duty order, “Customs is
charged with the ministerial function of fixing ‘the amount
of duty to be paid’ on subject merchandise.” Xerox, 289 F.3d
at 794 (quoting 19 U.S.C. § 1500(c)). As the Majority rec-
ognizes, see Majority Op. at 25, Customs is expected to ex-
amine imported products to determine if they are covered
by an AD/CVD order. Xerox, 289 F.3d at 794 (“When mer-
chandise may be subject to an antidumping duty order,
Customs makes factual findings to ascertain what the mer-
chandise is, and whether it is described in an order.”).
     Under the Majority’s reasoning, Customs may perform
its function—fixing the amount of duty to be paid— only if
there can be no doubt that a product is either within or not
within the scope of an AD/CVD order. See Majority Op. at
25, 26. The Majority cites Xerox for this proposition. But
Xerox merely addressed an issue related to the Court of In-
ternational Trade’s jurisdiction—namely, whether the
unique factual scenario at issue in that case was protesta-
ble to Customs, or whether a scope inquiry from Commerce
was necessary. We explained that if it were “unclear
whether the goods at issue were within the scope of anti-
dumping duty orders,” a scope inquiry would be necessary,
rather than a protest. Xerox, 289 F.3d at 795. But, we held
that a scope inquiry was not necessary in Xerox because
“the scope of the order [was] not in question” given that the
products at issue were “facially outside the scope of the an-
tidumping duty order.” Id. Indeed, on appeal, the parties
in that case agreed that the goods were not subject to the
AD/CVD order. See Appellant’s Reply Br. at 1, Xerox Corp.
v. United States, No. 01-1124 (Fed. Cir. May 29, 2001), Dkt.
No. 8 (“It is uncontested in this appeal that Customs as-
sessed antidumping duties against entries made by Xerox
of merchandise that is outside the scope of the relevant an-
tidumping order.”). The circumstances in Xerox thus in-
volved a “ministerial, factual error of Customs”—i.e., the
AD/CVD order required the products to be used for power
transmission and to contain certain materials, and the
SUNPREME INC. v. UNITED STATES                                5



products at issue were not used for power transmission and
did not contain such materials. 289 F.3d at 793–95. We
thus held that such a ministerial error was protestable to
Customs. Id. at 795.
    The Majority’s reasoning appears to create a strict di-
chotomy between “ministerial” actions by Customs and im-
proper “interpretation” of scope language by Customs. In
my view, this is a false dichotomy. The cases the Majority
cites regarding whether an act by Customs was “ministe-
rial” pertained to whether that act was the type that was
protestable such that the CIT would have jurisdiction un-
der § 1581(a). See Sunpreme I, 892 F.3d at 1192; Xerox,
289 F.3d at 795; Mitsubishi, 44 F.3d at 977. Certainly,
Sunpreme I suggests that the alleged error there was more
than the “undisputed” and “ministerial” issue in Xerox
(otherwise the CIT would have had jurisdiction under
§ 1581(a)). See See Sunpreme I, 892 F.3d at 1192. But Sun-
preme I did not speak to whether a lack of jurisdiction un-
der § 1581(a) necessarily meant that Customs was
improperly “interpreting” an AD/CVD order.
     To be sure, our case law indicates that if it is not clear
whether products fall within the scope of an AD/CVD order,
it is Commerce’s role to decide whether those products fall
within the scope of the order. 2 This, however, does not
mean that Customs’ hands are completely tied.



    2   In Sandvik Steel Co. v. United States, we stated
that “[s]ound administration of the antidumping laws
counsels that Commerce, which administers those laws,
should in the first instance decide whether an antidumping
order covers particular products.” 164 F.3d 596, 600 (Fed.
Cir. 1998) (emphasis added). But that case did not address
the issue here. We made that statement—“in the first in-
stance”—as part of our analysis of whether administrative
remedies had been fully exhausted. See id. In that case,
6                             SUNPREME INC. v. UNITED STATES




    Customs is responsible for fixing the amount of duty
owed. See 19 U.S.C. § 1500(c). That necessarily requires a
decision from Customs as to whether the goods fall within
an AD/CVD order. But the Majority holds today that Cus-
toms may apply and enforce AD/CVD orders to set the
amount of duty owed only if merchandise is clearly and un-
ambiguously covered by an AD/CVD order. See Majority
Op. at 27. Meanwhile, if there is any question as to
whether merchandise is subject to an AD/CVD order, the
Majority holds that any action from Customs applying that
AD/CVD order would be an improper “interpretation” of
the AD/CVD order. Id.
    To be sure, I agree with the Majority that only Com-
merce can interpret the scope of an AD/CVD order. I disa-
gree, however, that Customs’ routine application of such
orders constitutes an improper and ultra vires “interpreta-
tion” of those orders. Whether merchandise is subject to
an AD/CVD order is a yes or no question that Customs
must answer to fix the amount of duty owed. But under
the Majority’s reasoning, unless the AD/CVD order is crys-
tal clear, any decision by Customs—whether yes or no—
would be an “interpretation” of the scope of that AD/CVD
order. In my view, by giving a yes or no answer, Customs
is merely performing its “ministerial function of fixing ‘the
amount of duty to be paid’ on subject merchandise.” Xerox,




after Customs had suspended liquidation and begun col-
lecting cash deposits, the importer failed to timely file a re-
quest for a scope inquiry from Commerce. Then, after
Customs liquidated the entries, the importer protested
Customs’ application of the antidumping duty to those en-
tries. We held that the Court of International Trade lacked
jurisdiction to review the denial of the protest because the
importer had failed to exhaust its administrative remedies
by failing to request a scope inquiry.
SUNPREME INC. v. UNITED STATES                              7



289 F.3d at 794 (quoting 19 U.S.C. § 1500(c)). It is not im-
properly “interpreting” the scope of an AD/CVD order.
     To support its conclusion regarding Customs’ actions
being ultra vires, the Majority concludes that “even Com-
merce cannot order suspension of liquidation of merchan-
dise covered by such orders before the scope inquiry was
initiated.” Majority Op. at 26. Respectfully, this extends
our holding in AMS Associates, Inc. v. United States, 737
F.3d 1338 (Fed. Cir. 2013), too far. First, Commerce’s reg-
ulation contemplates continuing the suspension of liquida-
tion upon initiation of a scope inquiry, which demonstrates
that in at least some circumstances, suspension of liquida-
tion before a scope inquiry is initiated is appropriate. 19
C.F.R. § 351.225(l)(1). Too broad a reading of AMS would
nullify that provision. Moreover, to the extent the Major-
ity’s statement is limited to situations in which Commerce
clarifies an unclear or ambiguous AD/CVD order, this still
takes AMS too far. In AMS, Customs had not suspended
liquidation. Despite this, Commerce ordered suspension of
liquidation retroactive to the period prior to the initiation
of the scope inquiry. We held that where Commerce seeks
to clarify an unclear AD/CVD order, Commerce cannot or-
der suspension of liquidation where such instructions
would result in merchandise that had previously entered
not subject to the AD/CVD order being retroactively
brought within the scope. Unlike in AMS, Commerce’s in-
struction in our case is not truly retroactive because Cus-
toms had already suspended liquidation for the pre-scope
inquiry period.
                             II
    The practical import of the Majority’s conclusion that
Customs acted ultra vires is that importers will have no
incentive to request a scope inquiry from Commerce. As
the government and SolarWorld argue, if Customs cannot
suspend liquidation and collect cash deposits where it is
unclear if merchandise falls within an AD/CVD order,
8                            SUNPREME INC. v. UNITED STATES




importers will be incentivized to delay or avoid requesting
scope rulings from Commerce. As the result in this case
shows, the longer an importer delays, the less it will ulti-
mately pay in antidumping or countervailing duties.
     The Majority’s proposed solution for this problem is to
have Customs pick up the phone, call Commerce, and sug-
gest to Commerce that Commerce self-initiate a scope in-
quiry. 3 Majority Op. at 30. But there is no statutory or
regulatory framework to support such a solution. Indeed,
the presence of such a referral procedure elsewhere in the
regulatory framework suggests that such a procedure is not
contemplated here. See 19 C.F.R. § 165.16 (in the context
of investigating claims of evasion of antidumping and coun-
tervailing duties, requiring referrals to Commerce in cer-
tain circumstances). Without some statutory or regulatory
basis for these two agencies to coordinate in such circum-
stances, I am not comfortable assuming this is a workable
solution.
    Finally, I note that there appears to be no harm in Cus-
toms’ suspending liquidation and requiring importers to
pay cash deposits during the period prior to the initiation
of a scope inquiry, even where it is unclear whether the
merchandise falls within an AD/CVD order. If as a result
of the scope inquiry Commerce rules that a product is not
within the scope of an AD/CVD order, Commerce will in-
struct Customs to refund the AD/CVD cash deposits to the
importer. 19 C.F.R. § 351.225(l)(3); see also Majority Op.
at 24. And if instead Commerce rules that the product is
within the scope of the AD/CVD order—i.e., that Customs
was correct to suspend liquidation—there is no reason why


    3    A scope inquiry may be self-initiated by Commerce,
see 19 C.F.R. § 351.225(b), or in response to a request filed
by an interested party, see id. § 351.225(c). Customs can-
not initiate a scope inquiry because it is not an “interested
party.” See 19 U.S.C. § 1677(9).
SUNPREME INC. v. UNITED STATES                             9



the importer should not have been paying cash deposits for
the period prior to the initiation of the scope inquiry.
    In sum, the Majority’s holding significantly limits Cus-
toms’ ability to perform its role in applying and enforcing
Commerce’s AD/CVD orders as Customs fixes the amount
of duty owed. This holding also encourages importers to
delay filing requests for scope inquiries so that they too
might receive the windfall that Sunpreme is receiving in
this case. Because I cannot agree with this outcome, I re-
spectfully dissent.
