Court No. 18-00134                                                                                 Page 2


Agency R., ECF 16-1 (Nov. 28, 2018) (“Pl.’s Br.”). Defendant United States opposes Plaintiff’s

motion. Def.’s Resp. to Pl.’s Mot. for J. on Agency R., ECF No. 21 (Mar. 22, 2019) (“Def.’s

Br.”).

         Commerce’s final scope determination on Lyke’s cupwheels did not adhere to the

regulatory framework pursuant to 19 C.F.R. § 351.225. Therefore, the court remands the final

scope ruling to Commerce for further consideration in accordance with this opinion and order.

                                          BACKGROUND

         In November 2009, Commerce issued an antidumping order covering diamond sawblades

and parts thereof from the People’s Republic of China (“China” or “PRC”). See Diamond

Sawblades and Parts Thereof From the People’s Republic of China and the Republic of Korea,

74 Fed. Reg. 57,145 (Dep’t Commerce Nov. 4, 2009) (antidumping duty order) (“Order”). The

antidumping duty order includes within its Scope:

         [A]ll finished circular sawblades, whether slotted or not, with a working part that
         is comprised of a diamond segment or segments, and parts thereof, regardless of
         specification or size, except as specifically excluded below. Within the scope of
         these orders are semifinished diamond sawblades, including diamond sawblade
         cores and diamond sawblade segments. Diamond sawblade cores are circular steel
         plates, whether or not attached to non-steel plates, with slots. Diamond sawblade
         cores are manufactured principally, but not exclusively, from alloy steel. A
         diamond sawblade segment consists of a mixture of diamonds (whether natural or
         synthetic, and regardless of the quantity of diamonds) and metal powders
         (including, but not limited to, iron, cobalt, nickel, tungsten carbide) that are formed
         together into a solid shape (from generally, but not limited to, a heating and pressing
         process).

Order, 74 Fed. Reg. at 57,145.

The Order excludes from its scope:

         Sawblades with diamonds directly attached to the core with a resin or electroplated
         bond, which thereby do not contain a diamond segment, are not included within the
         scope of the order. Diamond sawblades and/or sawblade cores with a thickness of
         less than 0.025 inches, or with a thickness greater than 1.1 inches, are excluded
         from the scope of the order. Circular steel plates that have a cutting edge of non-
Court No. 18-00134                                                                           Page 3


       diamond material, such as external teeth that protrude from the outer diameter of
       the plate, whether or not finished, are excluded from the scope of the order.
       Diamond sawblade cores with a Rockwell C hardness of less than 25 are excluded
       from the scope of the order. Diamond sawblades and/or diamond segment(s) with
       diamonds that predominantly have a mesh size number greater than 240 (such as
       250 or 260) are excluded from the scope of the order.

Id.

       In February 2018, Lyke requested a scope ruling to determine whether two of its

products, diamond sawblades and cupwheels, fell within the scope of the Order. Lyke Scope

Request 2, P.R. 1 (Feb. 23, 2018). Commerce determined that Lyke’s finished diamond

sawblades are covered by the scope of the order, and so, only one product remains at issue today:

Lyke’s cupwheels. Final Scope Determination for Scope Request from Lyke Industrial Tool,

LLC 8, P.R. 23 (May 17, 2018) (“Final Scope Ruling”). In the scope ruling request, Lyke

requested that the agency find that cupwheels are not diamond sawblades and should be excluded

from the antidumping duty order. Lyke Scope Request 2. Lyke noted that in-scope diamond

sawblades have the following characteristics: (1) they must contain circular plates; (2) diamond

segments must be installed on the outer periphery of the core; and (3) the sawblades must be

used to cut materials. Id. at 11. According to Lyke, its cupwheels did not satisfy these

requirements. First, while the diamond segments in diamond sawblades “are [] installed in the

outer diameter (periphery) of the cores,” the diamond segments in a Lyke cupwheel are

“installed on the flat surface of the cores.” Id. at 10. Additionally, “[a] cupwheel does not cut

through the materials on which it is working,” and instead works to “polish or clean the surface.”

Id. Therefore, Lyke argued, the cupwheels do not satisfy the requirements of an in-scope

diamond sawblade and fall outside of the scope of the Order. Id.

       Thereafter, Commerce requested additional information from Lyke concerning its scope

ruling request and Lyke responded by way of a revised scope ruling request. Lyke Industrial
Court No. 18-00134                                                                            Page 4


Supplemental Questionnaire, P.R. 11 (Mar. 22, 2018); Revised Scope Ruling Request, P.R. 13

(Apr. 3, 2018). Specifically, Lyke stated in its supplemental questionnaire response that Lyke’s

cupwheels are not grinding wheels because “the steel core spins parallel rather than

perpendicular to the material being cut; therefore there is no rubbing.” Revised Scope Ruling

Request 15. After a subsequent exchange of comments and rebuttal comments from DSMC and

Lyke, respectively, Commerce issued its scope determination.

       In its final scope ruling, Commerce concluded that Lyke’s cupwheels fall outside of the

scope of the Order based primarily on their use and their physical characteristics. See Final

Scope Ruling. At the outset, Commere “clarified that, for the scope of the investigation,

diamond segments [of the merchandise] must be attached to the outer periphery of the core to be

within the scope.” Id. at 9. As to the product, Commerce first explained that “Lyke’s cupwheels

have diamond segments attached to the bottoms of the cores, not the outer periphery.” Id.

Second, because the cupwheels “are designed to rotate parallel, rather than perpendicular, . . . to

the plane of the material,” “Lyke’s cupwheels, in contrast to diamond sawblades . . . , do not

have an ‘attacking edge’ to ‘penetrate the material.’” Id. at 10. Commerce recognized that

“while the scope language does not describe in-scope merchandise . . . by their cutting function,

grinding function, or spin direction, statements from the petitioner and the ITC in the

investigation stage . . . clarify that a product that does not have an attacking edge that penetrates

the material is not subject merchandise.” Id. Therefore, Commerce concluded that “[a]lthough

the scope language covers diamond sawblades regardless of specification,” because Lyke’s

cupwheels are “physically distinguishable from diamond sawblades,” they are not covered by the

Order. Id. at 9–10.
Court No. 18-00134                                                                              Page 5


         DSMC moved for judgment on the agency record, arguing that Commerce’s finding that

Lyke’s cupwheels are out of scope was not supported by substantial evidence, and that

Commerce’s failure to obtain sufficient information regarding Lyke’s cupwheels renders its

determination unsupported by substantial evidence. See generally Pl.’s Br.

                                         JURISDICTION

         The court has jurisdiction over this action pursuant to 28 U.S.C. § 1581(c) and will

sustain Commerce’s determinations unless they are “unsupported by substantial evidence on the

record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i).

         “Commerce is entitled to substantial deference with regard to its interpretations of its

own antidumping duty orders.” King Supply Co., LLC v. United States, 674 F.3d 1343, 1348

(Fed. Cir. 2012) (citing Tak Fat Trading Co. v. United States, 396 F.3d 1378, 1382 (Fed. Cir.

2005)). “This broad deference is not unlimited, however, since ‘Commerce cannot interpret an

antidumping duty order so as to change the scope of that order, nor can Commerce interpret an

order in a manner contrary to its terms.’” Id. (quoting Walgreen Co. v. United States, 620 F.3d

1350, 1354 (Fed. Cir. 2010)). “Substantial evidence requires ‘more than a mere scintilla,’ but is

satisfied by ‘something less than the weight of the evidence.’” Altx, Inc. v. United States, 370

F.3d 1108, 1116 (Fed. Cir. 2004) (citations omitted). Commerce’s consideration should reflect

a sound decision-making process, see Burlington Truck Lines v. United States, 371 U.S. 156,

168 (1962), taking into account all evidence on the record, including that which may detract

from the ultimate conclusion, CS Wind Vietnam Co. v. United States, 832 F.3d 1367, 1373 (Fed.

Cir. 2016). But, whatever the result, the agency’s rationale must not be arbitrary, capricious, or

an abuse of discretion. Wheatland Tube Co. v. United States, 161 F.3d 1365, 1369 (Fed. Cir.

1998).
Court No. 18-00134                                                                             Page 6


                                         DISCUSSION

       The court remands Commerce’s scope ruling. Although the text of the scope order is

“susceptible to interpretation,” Meridian Prods., LLC v. United States, 851 F.3d 1375, 1381

(Fed. Cir. 2017) (citing Mid Continent Nail Corp. v. United States, 725 F.3d 1295, 1302 (Fed.

Cir. 2013)), the evidentiary record as relied upon by Commerce does not support its conclusion

that Lyke’s cupwheels fall outside the scope of the antidumping order. Additionally, the

Department misapplied the regulatory framework in its analysis when it considered function and

ultimate use of Lyke’s cupwheels in its 19 C.F.R. § 351.225(k)(1) analysis. As such,

Commerce’s scope ruling is unsupported by substantial evidence.

       Because descriptions of the subject merchandise must be written in general terms, “it is

often difficult to determine whether a particular product is included within the scope of an

antidumping or countervailing duty order.” OTR Wheel Eng’g, Inc. v. United States, 36 CIT

988, 992, 853 F. Supp. 2d 1281, 1285 (2012) (citing 19 C.F.R. § 351.225(a)). Therefore, after an

antidumping duty order is published, importers can request that Commerce clarify the scope of

the order. See 19 C.F.R. § 351.225(a), (c). Although “no specific statutory provision govern[s]

the interpretation of the scope of antidumping or countervailing orders,” Shenyang Yuanda

Aluminum Indus. Eng’g Co. v. United States, 776 F.3d 1351, 1354 (Fed. Cir. 2015), any scope

ruling must begin by reading the language of the order itself, Tak Fat Trading, 396 F.3d at 1382.

“Commerce’s inquiry must begin with the order’s scope to determine whether it contains an

ambiguity and, thus, is susceptible to interpretation.” Meridian Prods., LLC, 851 F.3d at 1381.

If the order is unambiguous, its terms govern. Id. But in interpreting the plain language of a

duty order— “whether a particular product is included within the scope of an order,” 19 C.F.R.

§ 351.225(k)—Commerce must examine “[t]he descriptions of the merchandise contained in the
Court No. 18-00134                                                                             Page 7


petition, the initial investigation, and the determinations of the Secretary (including prior scope

determinations) and the Commission.” 19 C.F.R. § 351.225(k)(1). These materials are called

the “(k)(1)” factors. If these factors are dispositive—that is, they clarify the scope of the order—

Commerce’s inquiry ends there, and Commerce can issue a final ruling. Tak Fat Trading Co.,

396 F.3d at 1382. If not, the Department may consider the following additional criteria, called

the “(k)(2)” factors: “(i) The physical characteristics of the product; (ii) The expectations of the

ultimate purchasers; (iii) The ultimate use of the product; (iv) The channels of trade in which the

product is sold; and (v) The manner in which the product is advertised and displayed.” 19 C.F.R.

§ 351.225(k)(2)(i)í(v).

           Because the scope does not define “sawblade,” Commerce appropriately looked to the

sources identified in its scope regulations at 19 C.F.R. § 351.225(k)(1) (the (k)(1) factors) for

guidance in interpreting the scope. However, the agency did not come to a reasonable

conclusion in consideration of the entire administrative record and its findings pursuant to the

(k)(1) factors did not “definitively answer the scope question.” Meridian Prods., LLC, 851 F.3d

at 1382 n.8. As a result, the court remands the Department’s determination.

      I.      The Text of the Scope Order Does Not Resolve the Scope Dispute

           In interpreting the scope of an order, the language therein is paramount. Mitsubishi

Polyester Film, Inc. v. United States, 41 CIT __, __, 228 F. Supp. 3d 1359, 1371 (2017).

Therefore, our inquiry begins by determining if the terms of the scope order are clear on its face.

See Mid Continent Nail Corp., 725 F.3d at 1302 (explaining that the inquiry begins with “the

language of the final order” and turns to other sources when the “literal terms of the order” do

not clarify the dispute). If the scope is unambiguous, it governs. ArcelorMittal Stainless Belg.

N.V. v. United States, 694 F.3d 82, 87 (Fed. Cir. 2012). “The relevant scope terms are
Court No. 18-00134                                                                            Page 8


‘unambiguous’ if they have ‘a single clearly defined or stated meaning.’” Atkore Steel

Components, Inc. v. United States, 42 CIT __, __, 313 F. Supp. 3d 1374, 1380 (2018) (citing

Meridian Prods., LLC, 851 F.3d at 1385). See also Laminated Woven Sacks Comm. v. United

States, 34 CIT 906, 914, 716 F. Supp. 2d 1316, 1325 (2010) (“Commerce need only meet a low

threshold to show that it justifiably found an ambiguity in scope language.”).

       And so the court turns first to the plain language of the antidumping duty order. The

Department found that the scope language was ambiguous as to the definition of the term

“sawblade.” The court agrees. The Order defines both “diamond sawblade cores” (“circular

steel plates, whether or not attached to non-steel plates, with slots”) and “diamond sawblade

segments” (“a mixture of diamonds and metal powders that are formed together into a solid

shape”), Final Scope Ruling 2, but notably omits what constitutes a “sawblade” in the first place.

There is nothing in the record to suggest that the term “sawblade” has a single meaning, and so,

the plain language of the Order does not resolve the scope request. See Maquilacero S.A. de C.V.

v. United States, 41 CIT __, __, 256 F. Supp. 3d 1294, 1307 (2017) (where there is “nothing to

suggest that [a term] has a single definition” and the term is “not defined in the Order,”

Commerce’s finding of ambiguity is in accordance with law). See also TMB 440AE, Inc. v.

United States, Slip Op. 19-109, 2019 WL 3800207, at *5 (CIT Aug. 13, 2019) (requiring

analysis of (k)(1) sources “because [a term] is undefined” in the order).

       Therefore, relying solely on the scope language does not compel “a single clearly defined

or stated meaning” of a sawblade. Atkore Steel Components, Inc., 42 CIT at __, 313 F. Supp. 3d

at 1380 (citations omitted). Without a “single clearly defined or stated meaning” evident from

the text of the scope order, the Order’s scope is “susceptible to interpretation” “with the aid of

other sources as described by regulation.” Meridian Prods., LLC, 851 F.3d at 1381í82 (internal
Court No. 18-00134                                                                            Page 9


quotations omitted). Specifically, Commerce must consider “[t]he descriptions of the

merchandise contained in the petition, the initial investigation, and the determinations of the

Secretary (including prior scope determinations) and the Commission.” 19 C.F.R.

§ 351.225(k)(1).

     II.      Commerce’s Determination Under 19 C.F.R. § 351.225(k)(1) That Lyke’s
              Cupwheels Fall Outside of the Scope Order is Not Supported by Substantial
              Evidence

           The court’s inquiry continues beyond the text of the Order. Here, Commerce sought to

clarify the scope of the order and its application to Lyke’s cupwheels under 19 C.F.R.

§ 351.225(k)(1) by examining the petition and the antidumping investigation record.

Specifically, the “(k)(1)” analysis prompts the Department to review “[t]he descriptions of the

merchandise contained in the petition, the initial investigation, and the determinations of

[Commerce] (including prior scope determinations) and the [International Trade] Commission.”

19 C.F.R. § 351.225(k)(1). If these sources are sufficient to determine whether the product falls

within the scope of the order, the court will sustain the final scope ruling. Tak Fat Trading, 396

F.3d at 1382. Although a party’s description of merchandise in these sources may aid

Commerce in making its determination, that description “cannot substitute for language in the

order itself” because “[i]t is the responsibility of [Commerce], not those who [participated in] the

proceedings, to determine the scope of the final orders.” Duferco Steel, Inc. v. United States, 296

F.3d 1087, 1097 (Fed. Cir. 2002). Commerce’s analysis of these sources against the product in

question produces factual findings reviewed for substantial evidence. See Fedmet Res. Corp. v.

United States, 755 F.3d 912, 919–22 (Fed. Cir. 2014). The court grants Commerce “substantial

deference” with regard to its interpretation of its own antidumping duty and countervailing duty

orders, King Supply Co., 674 F.3d at 1348; but “Commerce cannot interpret an antidumping
Court No. 18-00134                                                                          Page 10


order so as to change the scope of that order, nor can Commerce interpret an order in a manner

contrary to its terms,” Ethan Allen Operations, Inc. v. United States, 39 CIT __, __, 121 F. Supp.

3d 1342, 1348 (2015) (internal quotations omitted).

       In its analysis, the Department intrinsically intertwined the functionality of a diamond

sawblade (or “the ultimate use of the product,” a (k)(2) factor) with the scope order’s description

of the product (a (k)(1) factor). Simply put, Commerce has failed to demonstrate that Lyke’s

cupwheels are not within the scope of the order based solely on the three sources available under

19 C.F.R. § 351.225(k)(1): the description of the merchandise contained in the petition; the

initial investigation; and prior determinations of Commerce and the International Trade

Commission (“ITC”). Based on those materials alone, the court does not find the factors

dispositive—that is, they do not clarify the scope of the order as it relates to Lyke’s cupwheels.

Therefore, on remand, Commerce is ordered to conduct a (k)(2) analysis, wherein it may then

appropriately consider evidence as it relates to a diamond sawblade’s ultimate use.

               a. The (k)(1) materials Commerce relied upon do not “definitively answer
                  the scope question”

       Commerce examined the (k)(1) sources to determine if they sufficiently resolved the

scope dispute as applied to Lyke’s cupwheels. Ultimately, because Commerce impermissibly

relied on (k)(2) materials in its (k)(1) analysis, Commerce’s final scope determination is not

adequately supported by the record evidence. Therefore, the court remands the Department’s

determination in accordance with this opinion.

       In determining whether Lyke’s cupwheels are in-scope merchandise, Commerce

considered “the description of the merchandise contained in the investigation,” as well as prior

scope rulings that involved similar merchandise. Final Scope Ruling 9. According to

Commerce, a review of these materials lead to its conclusion that all in-scope merchandise must
Court No. 18-00134                                                                            Page 11


have “diamond segments . . . attached to the outer periphery of the core.” Id. Specifically,

Commerce stated that it considered prior scope rulings on merchandise with diamond grinding

segments at “the outer edge of the core,” as compared to Lyke’s cupwheels, which “have

diamond segments attached to the bottoms of the cores.” Id. Commerce also relied on an ITC

decision that analyzed a “segment, or rim, [that was] slightly wider than the core to permit the

leading edge to penetrate the material without the core rubbing against it,” as compared to

Lyke’s cupwheels, which lack such a “leading edge to penetrate [] material[s].” Id. And finally,

Commerce reviewed the descriptions of the merchandise as discussed in the petition, as well as

evidence derived from the underlying investigation, in order to make its determination that

Lyke’s cupwheels are not covered by the scope of the order. However, for each of these

(purportedly) (k)(1) materials, Commerce relies on one fundamental—and currently

unsupported—finding: that the physical characteristics of a sawblade must allow for an

“attacking edge” that can “penetrate [] materials,” id. at 10, such as “tile, porcelain, granite,

stone, and glass,” id. at 9. Not only is this finding—that diamond segments must be attached to

the outer periphery in order to create an “attacking edge”—currently unsupported by the record

evidence, it is also a factor that more squarely falls under a (k)(2) analysis. That is, only when

the (k)(1) sources fail to clarify the scope of the order can Commerce consider additional

materials, such as the physical characteristics of the product and its ultimate use. 19 C.F.R.

§ 351.225(k)(2)(i)í(v). Otherwise, “purpose or use cannot be the test when conducting a

§ 351.225(k)(1) determination.” Toys “R” Us, Inc. v. United States, 32 CIT 814, 819, 2008 WL

2764982 at *4 (2008).

        Starting with Commerce’s analysis of “the description of the merchandise contained in

the investigation,” 19 C.F.R. § 351.225(k)(1), the Department concludes—without drawing any
Court No. 18-00134                                                                            Page 12


logical inferences from the available evidence—that “diamond segments must be attached to the

outer periphery of the core to be within the scope.” Final Scope Ruling 10. This is because, as

Commerce further explains, the location of the diamond segments as “attached to the outer

periphery” creates an “’attacking edge’ that ‘penetrates the material.’” Id. This determination

falls dangerously close to “stray[ing] beyond the limits of [the scope’s] interpretation and into

the realm of amendment.” Ericsson GE Mobile Commc'ns, Inc. v. United States, 60 F.3d 778,

782 (Fed. Cir. 1995). While the court “afford[s] significant deference to Commerce’s own

interpretation of its orders,” Fedmet Res. Corp., 755 F.3d 912, 918, Commerce cannot “impose[]

a requirement not contained in the Order,” Maquilacero S.A. de C.V., 256 F. Supp. 3d at 1310, as

it does here. Here, the scope language lists that it covers “all finished circular sawblades . . .

with a working part that is comprised of a diamond segment . . . regardless of specification or

size.” Order, 74 Fed. Reg. at 57,145. By imputing a location requirement on the diamond

segment, the Department is inherently amending the Order to, indeed, include a specification.

The only limitation from the Order that even mentions the sawblades’ attachment to the core

excludes only those “sawblades with diamonds directly attached to the core with a resin or

electroplated bond.” Id. The Order’s written exclusions provide no additional insight: the Order

excludes sawblade with certain thickness specifications; steel plates with non-diamond cutting

edge material; and diamond sawblades of a specified level of hardness and diamond mesh size

numbers. Id. The Order notably does not mention diamond segment placement or the purpose

of such placement. Nor does the Department explain how ambiguity as to the location of the

diamond segment leads to its conclusion (or, “clarification,” Final Scope Ruling 9) that the

segments must be attached to the outer periphery of the core to be within the scope. But because

the scope language is the “cornerstone” of any scope determination, Commerce is bound by “the
Court No. 18-00134                                                                            Page 13


general requirement of defining the scope of antidumping and countervailing duty orders by the

actual language of the orders.” Duferco Steel, 296 F.3d at 1097. Here, Commerce went beyond

the limits of its discretion when it created additional requirements beyond those prescribed by the

language of the Order. See also Maquilacero S.A., 256 F. Supp. 3d at 1311 (remanding where

Commerce added an additional “stenciling” requirement to a final scope order that did not

mention such a specification).

       The prior scope determinations made by Commerce and the ITC do not provide

additional support for the Department’s reasoning. Commerce states that “statements from the

petitioner and the ITC in the investigation stage . . . clarify that a product that does not have an

attacking edge that penetrates the material is not subject merchandise.” Final Scope Ruling 10.

There are two issues with that determination. First, the Department’s prior scope determination

for one product’s grinding wheels does not adequately address why the segment placement on

the outer periphery of the sawblade is required for all in-scope merchandise. Moreover, the

Department misapplied the regulatory framework when it inappropriately relied on (k)(2)

evidence—that is, the function and use of a diamond sawblade—in its (k)(1) analysis.

       In considering prior scope rulings, Commerce explained that Lyke’s cupwheels differed

from 1A1R grinding wheels produced by Ehwa Diamond Industrial Company (“Ehwa”), which

Commerce had previously concluded fell within the scope of the Diamond Sawblades Order.

Final Scope Ruling 9. According to Commerce, the Department “included Ehwa’s 1A1R

grinding wheels within the scope because . . . [they] have a grinding segment made of metal

powders and diamonds attached to the outer edge of the core, and thus, meet the physical

description of the subject merchandise.” Id. This prior scope determination, and its findings

therein, allegedly support Commerce’s determination that if a product “does not have an
Court No. 18-00134                                                                            Page 14


attacking edge that penetrates the material”—like Lyke’s cupwheels—that product “is not

subject merchandise.” Id. at 10.

              But neither the investigation nor the Ehwa prior scope determination demonstrably

support this finding. To start, the investigatory scope memo from Ehwa’s scope request

mentions diamond segment placement on the outer edge of the core only twice—and both

references were from Ehwa’s own description of its products. See Consideration of Scope

Exclusion and Clarification Request, P.R. 16, Attach. 1, Ex. 5 (Dec. 20, 2005) (“Ehwa

Investigatory Scope Memo”) (“Ehwa’s own description of grinding wheels demonstrates that

such products should be covered by the scope of the investigation, e.g., circular wheel, diamond

cutting element on the outer diameter, etc.”). The Department made no further reference to

segment placement as a (now) fundamental aspect of an in-scope sawblade1. But “[a]lthough a

party’s [own] description of merchandise . . . may aid Commerce in making its determination,

that description ‘cannot substitute for language in the order itself[.]” Duferco, 296 F.3d at 1097.

And importantly, Commerce spent a significant portion of the Ehwa scope memo explaining that

the scope’s language, “diamond segment or segments . . . regardless of specification,” means just

that: the scope covers products that meet certain physical characteristics specified in the text of




1
  The only additional evidence that the Government points to is a portion of the Lyke Final
Scope Ruling, where Commerce “clarifi[es] that, for the scope of the investigation, diamond
segments must be attached to the outer periphery of the core to be within the scope,” citing to the
2006 Final Determination of Sales at Less Than Fair Value. See Final Scope Ruling 9 (citing
Diamond Sawblades and Parts Thereof from the People’s Republic of China, 71 Fed. Reg.
29,303 (Dep’t Commerce May 22, 2006) (final determ. of sales at less than fair value), and
accompanying Issues and Decision Memorandum at cmt. 3 (“2006 Final Determination”)). The
2006 Final Determination contains one sentence that states “diamond segments must be attached
to the outer periphery of the core.” 2006 Final Determination at cmt. 3. The Department did not
provide any further explanation for this requirement then, nor does it do so today. Therefore,
although that is (k)(1) evidence that Commerce may rely on, it fails to carry the day and
Commerce still falls short of the substantial evidence standard required under our review.
Court No. 18-00134                                                                             Page 15


the order, “irrespective of end-use” or function of the subject merchandise. See Ehwa

Investigatory Scope Memo 5 (rejecting Ehwa’s argument that the term “sawblades” should refer

only to those blades that are used on saws in order to avoid using “end-use” characteristics in the

scope determination). This is in direct contrast to the Department’s focus in the Lyke

investigation: a sawblades’ ability to functionally “penetrate [] material[s]” with its “attacking

edge.” Final Scope Ruling 10. Therefore, the Department’s heavy reliance on the Ehwa prior

scope determination fails to support the Department’s conclusion that the diamond segments

must be attached to the outer edge of the core. Indeed, this, too, is a logical fallacy: the fact that

one in-scope product had a certain additional characteristic (diamond segments on the outer core)

does not necessarily require that all subject merchandise have that same additional characteristic.

Compounded by the fact that the Ehwa scope memo does not even address diamond segments on

the outer core as a (fundamental or otherwise) element of an in-scope product, the Department

has little to support its determination that Lyke’s cupwheels are out of scope based solely on the

product’s diamond segment placement or ultimate use.

               b. Commerce’s final scope determination under 19 C.F.R. § 351.225(k)(1)
                  was not confined to the (k)(1) sources.
       Commerce’s final scope determination failed to adhere to the regulatory framework

pursuant to 19 C.F.R. § 351.225. Specifically, the Department’s reasoning improperly analyzes

(k)(2) evidence—ultimate use and function of the product—despite Commerce’s determination

that that the (k)(1) factors were dispositive and contained sufficient information to determine

whether Lyke’s cupwheels should be subject to the Order. In interpreting the plain language of a

duty order, the Department is limited to considering “[t]he descriptions of the merchandise

contained in the petition, the initial investigation, and the determination of the Secretary . . . and

the Commission.” 19 C.F.R. § 351.225(k)(1). It is only when the (k)(1) sources are not
Court No. 18-00134                                                                             Page 16


dispositive that Commerce may consider additional (k)(2) factors, which include the “physical

characteristics of the product,” the “expectations of the ultimate purchasers,” the “ultimate use of

the product,” the “channels of trade in which the product is sold,” and the “manner in which the

product is advertised and displayed.” 19 C.F.R. § 351.225(k)(2). Therefore, where, as here, the

Department finds that the (k)(1) sources “definitively answer the scope question,” Meridian

Prods., LLC, 851 F.3d at 1382 n.8, the (k)(2) factors “cannot be the test when conducting a §

351.225(k)(1) determination,” Toys “R” Us, Inc., 32 CIT at 819, 2008 WL 2764982 at *4.

       The Department made its final scope determination pursuant to the criteria under 19

C.F.R. § 351.225(k)(1) when it found that Lyke’s finished diamond sawblades are outside the

scope of the Order. However, the reasoning underlying the Department’s determination is

fixated on whether or not Lyke’s cupwheels are functionally capable of “penetrat[ing] . . .

materials,” which “include, among others, tile, porcelain, granite, stone, and glass.” Final Scope

Ruling 9. A product’s function, or “ultimate use of the product,” is explicitly a (k)(2) factor and

has no place in a (k)(1) analysis, as was purportedly undertaken here. See 19 C.F.R. §

351.225(k)(2)(iii) (“When the above criteria are not dispositive, the Secretary will further

consider . . . .the ultimate use of the product.”). See also Toys “R” Us, Inc., 32 CIT at 819

(“[P]urpose or use cannot be the test when conducting a § 351.225(k)(1) determination . . . they

are factors relevant only to a § 351.225(k)(2) inquiry[.]”). The focus on the product’s use as a

penetrating source is evident throughout the determination: “Lyke’s cupwheels are not suitable

for penetrating [] material,” Final Scope Ruling 10; “a product that does not have an attacking

edge that penetrates the material is not subject merchandise,” id.; “[t]he segment . . . is slightly

wider than the core to permit the leading edge to penetrate the material . . . ,” id. at 9. The

Department concedes that “the scope language does not describe in-scope merchandise and
Court No. 18-00134                                                                            Page 17


non-subject merchandise by their cutting function, grinding function, or spin direction,” but in

the same breath explains “that a product that does not have an attacking edge that penetrate the

material is not subject merchandise.” Id. at 10. Evidence relating to the product’s function or

use requires an inquiry under § 351.225(k)(2)—which the Department alleges it did not need to

undergo. What’s more, in the prior scope ruling for Ehwa’s products—which Commerce relies

upon in this investigation—the Department made clear that it would not make its scope

determination based on end-use or function of the item. See Ehwa Investigatory Scope Memo 5

(“[T]he Department’s decision on whether to exclude an item from the scope of an investigation

or order is typically not based upon the claimed end-use of the item.”). And here, Commerce

based its determination almost entirely on the product’s function, use, and physical

characteristics—all additional sources outlined in 19 C.F.R. § 351.225(k)(2). Therefore, it seems

quite unlikely that Commerce can confine itself to a limited § 351.225(k)(1) analysis here and

reach a supported conclusion about whether Lyke’s cupwheels are designed for “penetrating []

material[s].” Final Scope Ruling 10.

       Moreover, the Government also relies on the 1A1R specification as listed in the Order

(“the term sawblade is defined as those products that meet the 1A1R specification,” Order, 74

Fed. Reg. at 57,146) by way of demonstrating that the in-scope products must have “grinding

wheels” with grinding segments “attached to the outer edge of the core,” Final Scope Ruling 9.

The Department specifies that 1A1R products have a “segment thickness [that] is larger than the

thickness of the core.” Order, 74 Fed. Reg. at 57,146. That is yet another (k)(2) factor (“[t]he

physical characteristics of the product,” 19 C.F.R. § 351.225(k)(2)(i)) that the Department

inappropriately relies upon in its (k)(1) analysis. But even putting that aside, Department

attempts to draw a conclusion about the use of the in-scope sawblade (“grinding” or
Court No. 18-00134                                                                          Page 18


“penetrating”) from the 1A1R physical characteristic (“segment thickness [that] is larger than the

thickness of the core,” Order, 74 Fed. Reg. at 57,146). But then it is unclear to the court why the

Department also stated that “[it] do[es] not need information on . . . the thickness of segments

attached to cores of Lyke’s cupwheels,” Final Scope Ruling 10, when that is one of the few

physical characteristics available for determining whether a product is in-scope. This brings the

court to the next logical question: are the segments attached to the cores of Lyke’s cupwheels

thicker than the thickness of the core? To the confusion of the court, the Department notably

refused to answer this relevant question in its analysis.

       What is clear to the court, however, is that the criteria under 19 C.F.R. § 351.225(k)(1) is

not dispositive for a scope inquiry and a determination pursuant to § 351.225(k)(2) is warranted.

See Legacy Classic Furniture, Inc. v. United States, 35 CIT 1754, 1755, 807 F. Supp. 2d 1353,

1356 (2011) (“Only when these so-called ‘(k)(1)’ sources are not dispositive is Commerce to

proceed to consider the ‘(k)(2)’ factors[.]”). Although the court expresses no inclination as to the

correct outcome, Commerce must still explain how its findings were “reached by ‘reasoned

decision-making,’ including . . . a reasoned explanation supported by a stated connection

between the facts and the choice made,” Elec. Consumers Res. Council v. Fed. Energy

Regulatory Comm’n, 747 F.2d 1511, 1513 (D.C. Cir. 1984) (citing Burlington Truck Lines, 371

U.S. at 168)—even if that means delving into a (k)(2) inquiry. Therefore, the court orders the

Department to proceed with a full inquiry using the factors enumerated in § 351.225(k)(2).

                                 CONCLUSION AND ORDER

       The sources used by Commerce in its (k)(1) analysis do not “definitively answer” the

question of whether Lyke’s cupwheels are excluded from the scope of the Order. As

demonstrated by the record, there are questions left unanswered that require a more reaching
Court No. 18-00134                                                                         Page 19


analysis under 19 C.F.R. § 351.225(k)(2). Therefore, it is necessary for Commerce to further

address whether the subject merchandise falls within the scope of the order using the factors

enumerated in § 351.225(k)(2).

       For the foregoing reasons, after careful review of all papers, it is hereby

       ORDERED that because the Department’s determination under 19 C.F.R.
§ 351.225(k)(1) did not definitively answer the scope question, Commerce must proceed to
conduct a full inquiry under 19 C.F.R. § 351.225(k)(2); and it is further

        ORDERED that Commerce shall have ninety (90) days from the date of this Opinion
and Order in which to file its redetermination, which shall comply with all directives in this
Opinion and Order; that the Plaintiff shall have thirty (30) days from the filing of the
redetermination in which to file comments thereon; and that the Defendant shall have thirty (30)
days from the filing of Plaintiff’s comments to file comments.


Dated: 4FQUFNCFS                                                   /s/ Richard W. Goldberg
New York, New York                                                             Richard W. Goldberg
                                                                                       Senior Judge
