  United States Court of Appeals
      for the Federal Circuit
                ______________________

     MID CONTINENT NAIL CORPORATION,
               Plaintiff-Appellee,

                           v.

                  UNITED STATES,
                 Defendant-Appellant,

                         AND

             TARGET CORPORATION,
                Defendant-Appellant.
               ______________________

                   2012-1682, -1683
                ______________________

   Appeal from the United States Court of International
Trade in No. 10-CV-0247, Judge Nicholas Tsoucalas.
                 ______________________

                Decided: July 18, 2013
                ______________________

    ADAM H. GORDON, Wiley Rein LLP, of Washington,
DC, argued for plaintiff-appellee. With him on the brief
were ROBERT E. DEFRANCESCO, III, and LORI E. SCHEETZ.
Of counsel was CHARLES O. VERRILL, JR.

    PATRICIA M. MCCARTHY, Assistant Director, Commer-
cial Litigation Branch, Civil Division, United States
2                             MID CONTINENT NAIL CORP   v. US

Department of Justice, of Washington, DC, argued for
defendant-appellant United States. With her on the brief
were STUART F. DELERY, Principal Deputy Assistant
Attorney General, and JEANNE E. DAVIDSON, Director.
Of counsel on the brief was NATHANIEL HALVORSON,
Attorney International, Office of Chief Counsel, for Im-
port Trade Administration, United States Department of
Commerce, of Washington, DC.

   MARGUERITE E. TROSSEVIN, Jochum Shore &
Trossevin, PC, of Washington, DC, argued for defendant-
appellant Target Corporation.
                 ______________________

      Before DYK, LINN, and PROST, Circuit Judges.
DYK, Circuit Judge.
    Defendants Target Corporation and the United States
appeal from a judgment of the Court of International
Trade (“Trade Court”) rejecting the Department of Com-
merce’s (“Commerce”) interpretation of an antidumping
order on nails from the People’s Republic of China. The
Trade Court held that the steel nails included in certain
household tool kits imported by Target were subject to the
order. We vacate the judgment, and remand to the Trade
Court with directions that it remand to Commerce for
further proceedings.
                       BACKGROUND
                             I
    When participants in a domestic industry believe that
competing foreign goods are being sold in the United
States at less than their fair value, they may petition
Commerce to impose antidumping duties on importers.
See 19 U.S.C. § 1673a(b); Walgreen Co. of Deerfield, Ill. v.
United States, 620 F.3d 1350, 1351 (Fed. Cir. 2010). If
Commerce determines that “the subject merchandise is
MID CONTINENT NAIL CORP   v. US                             3
being, or is likely to be, sold in the United States at less
than its fair value,” and the International Trade Commis-
sion makes certain related determinations, Commerce
issues an antidumping duty order. See 19 U.S.C.
§§ 1673d-e. This order “includes a description of the
subject merchandise, in such detail as [Commerce] deems
necessary.” § 1673e(a)(2).
    After an order has issued, importers may seek “‘scope
rulings’ that clarify the scope of an order . . . with respect
to particular products.’’ 19 C.F.R. § 351.225(a),(c). Alt-
hough there is no statutory provision defining the criteria
to be applied in scope rulings, our cases and Commerce’s
regulations have to some extent defined the process by
which the agency decides whether a particular product is
included within the scope of an order. See Walgreen, 620
F.3d at 1356-57; 19 C.F.R. § 351.225(k).
    This case presents the question of whether otherwise-
subject merchandise (nails) that is packaged and import-
ed together with non-subject merchandise (assorted
household tools) as part of a so-called “mixed media” item
(a tool kit) is subject to an antidumping order that in
terms covers the included merchandise, and makes no
exception for mixed media items. Commerce has histori-
cally treated the answer to this question as depending on
whether the mixed media item is to be treated as a single,
unitary item, or a mere aggregation of separate items. See
Walgreen, 620 F.3d at 1355-56. As discussed below, the
statute and Commerce’s regulations do not address mixed
media issues specifically, and the statute’s mandate for
Commerce to write its orders in “such detail as [Com-
merce] deems necessary,” see § 1673e(a)(2), cannot be read
to authorize Commerce to provide inadequate notice to
regulated parties.
                              II
    The antidumping order in this case originated from a
petition filed by plaintiff Mid Continent Nail Corporation
4                              MID CONTINENT NAIL CORP    v. US
(“Mid Continent”) and other domestic companies, alleging
dumping of certain nails imported from China. See Cer-
tain Steel Nails from the People’s Republic of China and
the United Arab Emirates: Initiation of Antidumping Duty
Investigations, 72 Fed. Reg. 38,816, 38,817 (Dep’t of
Commerce July 16, 2007). Commerce’s antidumping order
contained an exhaustive description of the physical char-
acteristics of the subject nails, including their length,
construction, finish, head shape, and point shape, but did
not address mixed media items. See Notice of Antidump-
ing Duty Order: Certain Steel Nails from the People’s
Republic of China (“Final Order”), 73 Fed. Reg. 44,961,
44,961-62 (Dep’t of Commerce Aug. 1, 2008). The order
also noted that “steel nails subject to [the order] are
currently classified under the Harmonized Tariff Sched-
ule of the United States (‘HTSUS’) subheadings
7317.00.55, 7317.00.65 and 7317.00.75,” which apply to
various types of iron and steel nails, but specified that
“[w]hile the HTSUS subheadings are provided for conven-
ience and customs purposes, the written description of the
scope of [the order] is dispositive.” Id.
      In December 2009, after the order issued, Target re-
quested a scope ruling clarifying whether “the brass
plated steel nails [included in certain] household tool kits
. . . f[e]ll within the scope of the antidumping order.” J.A.
32. Target described six tool kits, each of which consisted
of a plastic toolbox or bag containing a variety of house-
hold tools (such as screwdrivers, measuring tapes, and
hammers), as well as “a small . . . compartmentalized
plastic box containing [an assortment of screws, tacks,
and hooks] and approximately 50 one-inch brass coated
steel nails of a type typically used with . . . picture hooks.”
J.A. 33-34. In each case, Target estimated that the nails
represented between 0.8% and 3.3% of the cost of the tool
kit and between 0.5% and 1.8% of its retail value. Target
conceded that the nails were of the type described in the
antidumping order.
MID CONTINENT NAIL CORP   v. US                             5
    Commerce issued a scope ruling in August 2010. Re-
garding the mixed media inquiry, Commerce stated that
although the nails “would meet the physical requirements
of steel nails that fall within the scope of the [order] if
they were imported without any of the other tool kit
components,” “the proper focus of the analysis is on the
nails as contained in the household tool kits.” J.A. 212. In
reaching this determination, Commerce looked to the so-
called “(k)(2) criteria” found in the agency’s general scope-
ruling regulations, see 19 C.F.R. § 351.225(k)(2). Com-
merce found that “the ultimate purchaser would not pay
[the retail price of the tool kits] to receive a small quanti-
ty of steel nails, when steel nails can be purchased in
larger quantities for a much lower price”; “the tool kits
serve a broader use of home or office repairs rather than
strictly to fasten or hang objects, [which is] the ultimate
use of subject steel nails”; the channel of trade used to sell
the tool kits “is distinctly different from the channel of
trade for nails”; and “the brass coated steel nails con-
tained within the six tool kits comprise, at most, a tan-
gential feature in the advertising of these tool kits.” See
J.A. 214-16. Commerce concluded that “Target’s six
household tool kits encompassing brass coated steel nails
are excluded from the scope of the order.” J.A. 207.
     Mid Continent challenged Commerce’s ruling, and the
Trade Court vacated it, finding Commerce’s explanation
insufficient. Mid Continent Nail Corp. v. United States,
770 F. Supp. 2d 1372 (Ct. Int’l Trade 2011). The court
remanded for Commerce to “identify not only a test it will
employ consistently” for conducting mixed media inquir-
ies, but also “the legal justification for employing such a
test at all.” Id. at 1383.
    On remand, Commerce cited three sources of authori-
ty for conducting a mixed media inquiry: the antidumping
statute, which requires duties to be applied to a particular
“class or kind of foreign merchandise,” 19 U.S.C. § 1673;
the agency’s regulations, which acknowledge that anti-
6                             MID CONTINENT NAIL CORP   v. US
dumping orders “must be written in general terms” and
authorize the agency to issue scope rulings, 19 C.F.R.
§ 351.225(a); and our opinions in Walgreen and in Craw-
fish Processors Alliance v. United States, 483 F.3d 1358
(Fed. Cir. 2007). Commerce also announced a four-factor
test that it would henceforth rely on to “address [mixed
media] question[s].” J.A. 225. The agency declared that it
henceforth
    will consider, at the time of importation: (1) the
    practicability of separating the component mer-
    chandise for repackaging or resale; (2) the value of
    the component merchandise as compared to the
    value of the product as a whole; (3) the ultimate
    use or function of the component merchandise rel-
    ative to the ultimate use or function of the mixed-
    media set as a whole; and (4) any other relevant
    factors that may arise on a product-specific basis.
J.A. 225. Regarding the first factor, Commerce found that
“[b]ecause the [nails were] packaged in the same case that
contained similar non-subject fasteners, . . . it would be
impractical to remove the [nails] for the purpose of resell-
ing.” J.A. 229. Regarding the second factor, Commerce
found that “the value of the steel nails within the
tool[ ]kits is very small as compared to the value of the
entire tool[ ]kit.” J.A. 229. Regarding the third factor, the
agency determined that the purpose of the tool kits was
“to provide a convenient collection of tools and accessories
for the intention of home repair and maintenance,” and
that “[t]he general purpose of steel nails, fastening two
objects together, while complementary, is not the same as
the purpose of a tool[ ]kit.” J.A. 230. Commerce also found
that “the choice of the tool[ ]kit selected [by the end-user]
is not based exclusively upon the inclusion of the steel
nails.” J.A. 230. Finally, Commerce did not identify “any
other relevant factors which it [found] necessary to the
mixed-media analysis for [the] tool[ ]kits under considera-
tion.” J.A. 230.
MID CONTINENT NAIL CORP   v. US                          7
    On review, the Trade Court once again vacated Com-
merce’s ruling and remanded to Commerce, holding that
because there was no clear language in the final anti-
dumping order addressing mixed media items, Commerce
had no authority to conduct a mixed media inquiry and
exclude otherwise-subject merchandise that is included in
a mixed media item. Mid Continent Nail Corp. v. United
States, 825 F. Supp. 2d 1290, 1295-96 (Ct. Int’l Trade
2012).
     On remand, Commerce revised its ruling to comply
with the Trade Court’s holding interpreting the order so
as to cover the nails included within the tool kits. On
review again, the Trade Court affirmed. Mid Continent
Nail Corp. v. United States, 34 I.T.R.D. (BNA) 1839 (Ct.
Int’l Trade 2012). Target and the United States appealed
to this court. We have jurisdiction under 28 U.S.C.
§ 1295(a)(5).
                       DISCUSSION
   We review the Trade Court de novo, applying the
same substantial-evidence standard of review that it
applies in reviewing Commerce’s determinations. Global
Commodity Grp. LLC v. United States, 709 F.3d 1134,
1138 (Fed. Cir. 2013); Walgreen, 620 F.3d at 1354.
                              I
    In issuing scope rulings, “‘Commerce . . . enjoys sub-
stantial freedom to interpret and clarify its antidumping
orders. But while it may interpret those orders, it may not
change them.’” Novosteel SA v. United States, 284 F.3d
1261, 1269 (Fed. Cir. 2002) (quoting Ericsson GE Mobile
Commc’ns, Inc. v. United States, 60 F.3d 778, 782 (Fed.
Cir. 1995)). We therefore afford “significant deference to
Commerce’s interpretation of a scope order,” so long as
Commerce’s interpretation is not “contrary to the order’s
terms” and does not “change the scope of the order.”
Global Commodity Grp., 709 F.3d at 1138. In particular,
8                             MID CONTINENT NAIL CORP   v. US
“orders may be interpreted as including subject merchan-
dise only if they contain language that specifically in-
cludes the subject merchandise or may be reasonably
interpreted to include it.” Duferco Steel, Inc. v. United
States, 296 F.3d 1087, 1089 (Fed. Cir. 2002).
     While this particular case does not involve a claim of
lack of notice by a party on whom duties have been im-
posed, the requirement that antidumping orders only be
applied to merchandise that they may be reasonably
interpreted to include ensures that before imposing a
significant exaction in the form of an antidumping duty,
Commerce will provide “adequate notice of what conduct
is regulated by the order.” See Fuji Photo Film Co. v. Int’l
Trade Comm’n, 474 F.3d 1281, 1292 (Fed. Cir. 2007). The
requirement therefore reflects the broader due-process
principle that before an agency may enforce an order or
regulation by means of a penalty or monetary sanction, it
must “provide regulated parties fair warning of the con-
duct [the order or regulation] prohibits or requires.” See
Christopher v. SmithKline Beecham Corp., 567 U.S. __, __,
132 S. Ct. 2156, 2167 (2012) (quotation marks omitted);
Trinity Broad. of Fla., Inc. v. FCC, 211 F.3d 618, 628
(D.C. Cir. 2000); United States v. Chrysler Corp., 158 F.3d
1350, 1354 (D.C. Cir. 1998); Gen. Elec. Co. v. U.S. Envtl.
Prot. Agency, 53 F.3d 1324, 1328-30 (D.C. Cir. 1995); see
also Fuji Photo, 474 F.3d at 1292-93; In re Bogese, 303
F.3d 1362, 1368 (Fed. Cir. 2002). 1


    1   As the Supreme Court noted recently in Christo-
pher:
        Our practice of deferring to an agency’s inter-
    pretation of its own ambiguous regulations un-
    doubtedly has important advantages, but this
    practice also creates a risk that agencies will
    promulgate vague and open-ended regulations
    that they can later interpret as they see fit, there-
MID CONTINENT NAIL CORP   v. US                            9
    We have not often been confronted with mixed media
cases requiring interpretation of Commerce’s orders. In
Walgreen, we approved Commerce’s decision to include
merchandise within an antidumping order even though it
was imported for sale with other items. The order in
Walgreen covered “tissue paper having a basis weight not
exceeding 29 grams per square meter.” See Walgreen, 620
F.3d at 1353 (quotation marks omitted). We sustained
Commerce’s determination that the inclusion of other-
wise-subject tissue paper within a gift bag set containing
non-subject wrapping materials did not affect its status as
subject merchandise. Id. at 1355-57. In that case, Com-
merce relied both on the broad (though non-specific)
language of the final order and on specific statements in
the regulatory history that “all subject merchandise . . . is
subject to this proceeding, whether or not it is sold or
shipped with non-subject merchandise.” See id. at 1356-57
(quotation marks omitted). Walgreen concluded that
Commerce did not err in finding that tissue paper includ-
ed in mixed-media gift bag sets was subject to the order.
See id.
    While our decision in Walgreen addressed Commerce’s

    by frustrat[ing] the notice and predictability pur-
    poses of rulemaking. It is one thing to expect regu-
    lated parties to conform their conduct to an
    agency’s interpretations once the agency an-
    nounces them; it is quite another to require regu-
    lated parties to divine the agency’s interpretations
    in advance or else be held liable when the agency
    announces its interpretations for the first time in
    an enforcement proceeding and demands defer-
    ence.
567 U.S. at __, 132 S. Ct. at 2168 (alteration in the origi-
nal) (footnote, citations, and quotation marks omitted).
10                            MID CONTINENT NAIL CORP   v. US
discretion to construe antidumping orders so as to include
material covered by the literal terms of the order, we have
not previously addressed under what circumstances
Commerce has the authority to interpret an antidumping
order so as to exclude material that is within the literal
terms of the order. But just as orders cannot be extended
to include merchandise that is not within the scope of the
order as reasonably interpreted, merchandise facially
covered by an order may not be excluded from the scope of
the order unless the order can reasonably be interpreted
so as to exclude it.
    Because orders are subject to interpretation, the
Trade Court erred in holding that in the absence of clear
language in the final order, Commerce categorically lacks
the authority to conduct a mixed media inquiry and to
exclude from the scope of the order otherwise-subject
merchandise included within a mixed media item. As we
held in Walgreen, Commerce’s practice of conducting
mixed media inquiries falls within its “‘responsibility . . .
to determine the scope of the final orders.’” See Walgreen,
620 F.3d at 1355 (quoting Duferco, 296 F.3d at 1097). The
mere fact that the order in this case makes no explicit
reference to mixed media items does not conclusively
establish that Commerce lacked authority to consider the
order’s applicability to nails contained within such items.
                             II
    While we disagree with the Trade Court that Com-
merce is foreclosed by the broad language of the anti-
dumping order from interpreting the order to exclude
nails included within mixed media tool kits, we agree
with the Trade Court that Commerce has not yet reason-
ably interpreted the order in this case so as to justify such
an exclusion. Commerce does not attempt to defend the
rationale of its original ruling, and its redetermination on
remand relied only on newly announced criteria for inter-
pretation that did not exist at the time that the order was
MID CONTINENT NAIL CORP   v. US                          11
issued. We think a remand is required to give Commerce
one last opportunity to interpret its order. We also think
it appropriate to provide the following guidance for the
remand proceedings in this case, as well as for future
cases.
    The interpretive process for a scope determination re-
lating to mixed media items necessarily involves two
steps. First, Commerce must determine whether the
potentially-subject merchandise included within the
mixed media item is within the literal terms of the anti-
dumping order. If it is, then Commerce must determine
whether the inclusion of that merchandise within a mixed
media item should nonetheless result in its exclusion from
the scope of the order.
     We note that this case presents no question in the
first step as to whether the nails are within the literal
terms of the order. In cases where the literal scope of the
order is at issue, the procedure for conducting this inquiry
is specified in our cases and Commerce’s regulations. See
19 C.F.R. § 351.225(k); Walgreen, 620 F.3d at 1352. Com-
merce must first examine the language of the final order.
See Tak Fat Trading Co. v. United States, 396 F.3d 1378,
1382 (Fed. Cir. 2005); Duferco, 296 F.3d at 1097. If the
language is ambiguous, Commerce must next consider the
regulatory history, as contained in the so-called “(k)(1)
materials”: “[t]he descriptions of the merchandise con-
tained in the petition, [Commerce’s] initial investigation,
and the [prior] determinations of [Commerce] (including
prior scope determinations) and the [International Trade]
Commission.” 19 C.F.R. § 351.225(k)(1); see Tak Fat, 396
F.3d at 1382-83; Duferco, 296 F.3d at 1097 n.14.
     If the (k)(1) materials are not dispositive, Commerce
then considers the (k)(2) criteria: “[t]he physical charac-
teristics of the product,” “[t]he expectations of the ulti-
mate purchasers,” “[t]he ultimate use of the product,”
“[t]he channels of trade in which the product is sold,” and
12                            MID CONTINENT NAIL CORP   v. US
“[t]he manner in which the product is advertised and
displayed.” § 351.225(k)(2); see Walgreen, 620 F.3d at
1352. If the manner in which the otherwise-subject mer-
chandise is incorporated into the mixed media item alters
these properties so comprehensively as to effect a “sub-
stantial transformation” in the merchandise, such that it
“can no longer be considered” the same merchandise, then
the included merchandise is not subject to the order. See
Crawfish Processors, 483 F.3d at 1362-63. For example, in
Crawfish Processors, the court determined that the meat
in crawfish étouffée had been so “substantially trans-
formed” by its incorporation into the stew that it no longer
constituted “freshwater crawfish tail meat” within the
meaning of the antidumping order, and was therefore
non-subject merchandise. See id. at 1363-64 (quotation
marks omitted).
     In this case, the parties agree that the included mer-
chandise—the nails within the tool kits—is within the
literal terms of the order. In other words, there is no
contention here that the imported nails were not “nails”
within the literal language of the antidumping order.
    Having determined that the included merchandise
would be subject to the order if considered in its own
right, Commerce must then proceed to the next step and
decide whether the inclusion of the merchandise within a
mixed media item takes it outside the scope of the order.
    Once again, the process must begin with the language
of the order, which provides the “predicate for the inter-
pretive process.” See Duferco, 296 F.3d at 1097. If an
order stated, for example, that “all subject merchandise is
subject to [the order], whether or not it is sold or shipped
with non-subject merchandise,” then the scope analysis
would be at an end. Cf. Walgreen, 620 F.3d at 1355, 1357;
Crawfish Processors, 483 F.3d at 1359. Conversely, if the
order itself indicated that Commerce would determine the
applicability of the order to otherwise-subject merchan-
MID CONTINENT NAIL CORP   v. US                          13
dise included within mixed media items in light of the
factors identified by Commerce in the remand proceedings
in this case—“the practicability of separating the [includ-
ed] merchandise for repackaging or resale,” “the value of
the [included] merchandise as compared to the value of
the [mixed media item] as a whole,” and “the ultimate use
or function of the [included] merchandise relative to the
ultimate use or function of the mixed[ ]media [item] as a
whole,” see Mid Continent, 825 F. Supp. 2d at 1293-94—
then there would be no question that these factors would
be the proper ones to consider in conducting the mixed
media inquiry. 2
     Where, as here, the language of the order is silent,
Commerce must next determine whether the (k)(1) mate-
rials help to interpret the order. These materials consist
of “[t]he descriptions of the merchandise contained in [(1)]
the petition, [(2) Commerce’s] initial investigation, and
[(3)] the [prior] determinations of [Commerce] (including
prior scope determinations) and the [International Trade]
Commission.” See 19 C.F.R. § 351.225(k)(1). We have
previously noted that these sources are relevant to mixed
media inquiries. See Walgreen, 620 F.3d at 1357.
    Here, there is nothing in the history of the antidump-
ing order (items 1 and 2 above) to suggest that the literal
language of the order should not govern in mixed media
cases. Neither does that history conclusively establish
that it should not. Mid Continent argues that certain
comments it made in the course of Commerce’s antidump-
ing investigation are relevant to the mixed media in-


   2    The fourth “factor” announced, but not relied on,
by Commerce in this case—“any other relevant factors
that may arise on a product-specific basis,” see id. at
1294—does not provide affected parties with any notice of
what facts Commerce will consider in its inquiry, and is
therefore not an appropriate factor to rely on.
14                            MID CONTINENT NAIL CORP   v. US
quiry. 3 Unlike the petition itself, however, subsequent
comments made by the petitioners are not relevant under
subsection 351.225(k)(1). We see no reason to give any
weight to these comments where, as here, Commerce did
not address the comments during the investigation. Cf.
Walgreen, 620 F.3d at 1355 (affording no deference to an
importer’s characterization of its mixed media item as a
unitary item in its scope ruling request).
     Once Commerce has determined that the included
merchandise would be subject to the order if examined in
its own right, and that neither the text of the order nor its
history indicates that subject merchandise should be
treated differently on the basis of its inclusion within a
mixed media item, we believe that a presumption arises
that the included merchandise is subject to the order.

     3   During the investigation, an importer that is not a
party to this appeal filed a comment seeking to exclude
from the proceedings nails that were sold as part of a kit
together with a pneumatic nail gun, arguing that such
kits were not of the same “‘class or kind’ of merchandise”
as the nails at issue in the investigation. See Certain Steel
Nails from the People’s Republic of China: Preliminary
Determination of Sales at Less Than Fair Value and
Partial Affirmative Determination of Critical Circum-
stances and Postponement of Final Determination, 73 Fed.
Reg. 3928, 3928-29 (Dep’t of Commerce Jan. 23, 2008).
Mid Continent objected, “stat[ing] for the record that [it
had] always intended the[] proceedings to cover all . . .
steel nails exhibiting the physical characteristics de-
scribed in the written scope description, whether imported
alone or as part of a set of goods including non-[subject]
merchandise.” J.A. 98; see also 73 Fed. Reg. at 3929.
Before Commerce could weigh in, the importer withdrew
its request and replaced it with a new request “framed
solely in terms of [the] physical characteristics” of the
nails it wished to exclude. See 73 Fed. Reg. at 3929.
MID CONTINENT NAIL CORP   v. US                          15
This presumption arises from the need to recognize that
“[t]he primary source in making a scope ruling is the
antidumping order being applied.” See Walgreen, 620 F.3d
at 1356; see also Tak Fat, 396 F.3d at 1382 (“The lan-
guage of the order determines the scope of an antidump-
ing duty order.”); Duferco, 296 F.3d at 1097 (“Repeatedly,
decisions of this court confirm that [a]lthough the scope of
a final order may be clarified, it can not be changed in a
way contrary to its terms.” (alteration in the original)
(quotation marks omitted)).
     In order to overcome this presumption, Commerce
must identify published guidance issued prior to the date
of the original antidumping order (in this case, August 1,
2008) that provides a basis for interpreting the order
contrary to its literal language. While the Administrative
Procedure Act does not forbid agencies from using adjudi-
cative proceedings to develop new interpretations of
statutes, regulations, or orders, see NLRB v. Bell Aero-
space Co., 416 U.S. 267, 294 (1974), it does require agen-
cies “to avoid the inherently arbitrary nature of
unpublished ad hoc determinations,” see Morton v. Ruiz,
415 U.S. 199, 232 (1974) (emphasis removed). Cf. 44
U.S.C. § 1507 (providing that “[a] document required by
[law] to be published in the Federal Register is not valid
as against a person who has not had actual knowledge of
it” until it is so published).
    In some cases, this guidance may be found in the
third of the (k)(1) criteria—“the [prior] determinations of
[Commerce] (including prior scope determinations),” see
19 C.F.R. § 351.225(k)(1)—so long as these prior determi-
nations were publicly available at the time that the
antidumping order was issued. 4 While Commerce’s scope

   4    As we suggested in Walgreen, prior scope rulings
interpreting the same antidumping order are particularly
relevant under subsection 351.225(k)(1), see Walgreen,
620 F.3d at 1356, assuming that they do not articulate
16                            MID CONTINENT NAIL CORP   v. US
rulings are labeled “[p]ublic [d]ocument[s],” see, e.g., J.A.
155, 169, it is unclear whether they are publicly availa-
ble. 5
    Another problem with these prior scope rulings is that
they lack clarity. In Walgreen, we observed that in its
prior mixed media scope rulings, Commerce has eschewed
developing any “formal definition[s],” “generally applica-
ble criteria,” or “bright line rule[s]” for conducting mixed
media inquiries, and has instead relied on “ad hoc deter-
minations.” Walgreen, 620 F.3d at 1355-56. These prior
scope rulings do establish that there exists in some cir-
cumstances an implicit mixed media exception even in the
absence of explicit language in the final order (as
Walgreen confirmed); however, they provide only limited
guidance regarding the scope of that exception, or the


new interpretive criteria. The parties have not pointed to
any prior rulings interpreting the steel nails order. How-
ever, such rulings—which by definition were not publicly
available at the time the antidumping order was issued—
cannot be used to articulate new interpretive criteria not
announced when the antidumping order was originally
issued.
     5  Prior scope rulings do not appear to be available
on the agency’s public website. Commerce’s regulations
require the agency to publish a quarterly list of completed
rulings in the Federal Register, along with a “brief de-
scription” of each ruling. See 19 C.F.R. § 351.225(o). These
“brief description[s]” only state the agency’s conclusion,
however, and not its reasoning. See, e.g., Notice of Scope
Rulings, 76 Fed. Reg. 10,558, 10,559 (Dep’t of Commerce
Feb. 25, 2011) (“A–570–909: Steel Nails from the People’s
Republic of China. Requestor: Target Corporation; six
household toolkits, including brass coated steel nails,
taken as a whole, are not within the scope of the anti-
dumping duty order; August 10, 2010.”).
MID CONTINENT NAIL CORP   v. US                          17
circumstances in which it may be applied. Commerce
concedes that these ad hoc determinations provided no
ascertainable standard that would allow importers to
predict how Commerce would treat their mixed media
products, and that it “ha[d] not previously provided a
complete listing of the factors it may consider when
conducting a mixed[ ]media analysis.” See J.A. 225. None-
theless, on remand Commerce may attempt to draw an
ascertainable standard from these rulings if they were
publicly available at the time the antidumping order
issued in August 2008.
     Prior scope rulings are not the only sources of guid-
ance which Commerce may consider. Just as Commerce
may look to the (k)(1) materials in the course of its mixed
media analysis, it may similarly rely on the (k)(2) factors,
to the extent that they are relevant to resolving the mixed
media inquiry. Commerce may also consult the HTSUS
classification system in deciding whether a tool kit is a
single, unitary item or a mere aggregation of items, if
Commerce can point to prior published rulings in support
of this practice. Significantly, the language in the steel
nails order makes no reference to HTSUS subheadings
other than those covering nails. We do not decide whether
by relying on these sources Commerce could reasonably
interpret its antidumping order to exclude the nails
included within Target’s toolkits. We simply hold that
Commerce may attempt to develop such an interpretation
utilizing the sources we have identified.
     In summary, we think that a remand is necessary to
allow Commerce to revisit its mixed media determination
in light of the requirement that any implicit mixed media
exception to the literal scope of the order must be based
on preexisting public sources. In remanding, we continue
to recognize that Commerce’s antidumping orders “‘must
be written in general terms’” and “in such detail as
[Commerce] deems necessary”; that “[e]ach case must be
decided on [its] particular facts”; and that Commerce
18                              MID CONTINENT NAIL CORP   v. US
enjoys considerable discretion in interpreting its own
orders. See 19 U.S.C. § 1673e(a)(2); Walgreen, 620 F.3d at
1352, 1355-56 (quoting 19 C.F.R. § 351.225(a)); Novosteel,
284 F.3d at 1269. We also recognize that the practical
difficulty of requiring importers to pay, and the govern-
ment to collect, antidumping duties on de minimis im-
ports may be considerable. At the same time, Commerce
must adhere to the scope of its duly issued antidumping
orders, as reasonably interpreted in light of established
and consistent principles of interpretation. See Duferco,
296 F.3d at 1095-97.
                          *     *     *
     We finally note that Commerce’s problems are largely
self-inflicted, because in the past Commerce has given low
priority to an approach that should receive the highest
priority from any administrative agency—providing
coherent and consistent guidance to regulated parties. We
note also that in the future, many of the problems pre-
sented by this case could be avoided if Commerce were to
identify in its antidumping orders or in prospective regu-
lations the factors that it will consider in resolving mixed
media and other cases.
                        CONCLUSION
    We vacate the Trade Court’s ruling, and remand for
further proceedings consistent with this opinion.
              VACATED AND REMANDED
                              COSTS
     Costs to neither party.
