United States Court of Appeals 

for the Federal Circuit ______________________

SOLAR ENERGY INDUSTRIES ASSOCIATION, 

NEXTERA ENERGY, INC., INVENERGY 

RENEWABLES LLC, EDF RENEWABLES, INC.,

Plaintiffs-Appellees

v.

UNITED STATES, UNITED STATES CUSTOMS 

AND BORDER PROTECTION, TROY MILLER, 

ACTING COMMISSIONER FOR U.S. CUSTOMS 

AND BORDER PROTECTION,

Defendants-Appellants

______________________

2022-1392

______________________

Appeal from the United States Court of International 

Trade in No. 1:20-cv-03941-GSK, Judge Gary S. 

Katzmann.

______________________

Decided: August 13, 2024

______________________

SUPPLEMENTAL OPINION ON PETITION FOR 

REHEARING

______________________

MATTHEW R. NICELY, Akin Gump Strauss Hauer & 

Feld LLP, Washington, DC, filed a petition for rehearing 

en banc and reply for plaintiffs-appellees. PlaintiffsCase: 22-1392 Document: 110 Page: 1 Filed: 08/13/2024
2 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US

appellees Solar Energy Industries Association, NextEra 

Energy, Inc. also represented by JULIA K. EPPARD, DEVIN S.

SIKES, JAMES EDWARD TYSSE, DANIEL MARTIN WITKOWSKI.

 JOHN BOWERS BREW, Crowell & Moring, LLP, Washington, DC, for plaintiff-appellee Invenergy Renewables LLC. 

Also represented by AMANDA SHAFER BERMAN, LARRY 

EISENSTAT, ROBERT L. LAFRANKIE; FRANCES PIERSON 

HADFIELD, New York, NY.

 CHRISTINE STREATFEILD, Baker & McKenzie LLP, 

Washington, DC, for plaintiff-appellee EDF Renewables, 

Inc.

 JOSHUA E. KURLAND, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, Washington, DC, filed a response for defendants-appellants. 

Also represented by BRIAN M. BOYNTON, TARA K. HOGAN,

PATRICIA M. MCCARTHY. Defendant-appellant United 

States also represented by MICHAEL THOMAS GAGAIN, Office of the General Counsel, Office of the United States 

Trade Representative, Washington, DC.

 ANASTASIA P. BODEN, Cato Institute, Washington, DC, 

for amicus curiae Cato Institute. Also represented by 

NATHANIEL ABRAHAM LAWSON.

 ______________________

Before LOURIE, TARANTO, and STARK, Circuit Judges.

STARK, Circuit Judge.

Solar Energy Industries Association, Nextera Energy 

Inc., Invenergy Renewables LLC, and EDF Renewables, 

Inc., Plaintiffs-Appellees (collectively, “Solar”), filed a petition for rehearing. In the Petition, Solar argues that the 

full court should reevaluate and replace its precedential decision in Maple Leaf Fish Co. v. United States, 762 F.2d 86, 

89 (Fed. Cir. 1985), in which we explained we would only 

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SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 3

set aside presidential actions taken pursuant to Sections 

201-03 of Title II of the Trade Act of 1974, 19 U.S.C. 

§§ 2251-53, if the statutory interpretation underlying such 

acts constitutes “a clear misconstruction of the governing 

statute, a significant procedural violation, or action outside 

delegated authority” (emphasis added). The panel previously issued an opinion reversing the Court of International Trade’s decision to enjoin the president from 

enforcing Proclamation 10101, which (among other things) 

removed the exclusion of bifacial solar panels from certain 

duties that had been imposed a few years earlier.1 See Solar Energy Indus. Ass’n v. United States, 86 F.4th 885 (Fed. 

Cir. 2023) (“Panel Opinion”). In doing so, the Panel Opinion applied the Maple Leaf standard. See id. at 894-95.

Solar now argues that Maple Leaf conflicts with Supreme Court and Federal Circuit precedent. See, e.g., Pet. 

at 6-7 (citing Trump v. Hawaii, 585 U.S. 667 (2018) (discussing presidential interpretation of Immigration and Nationality Act); id. at 8 (citing Transpacific Steel LLC v. 

United States, 4 F.4th 1306 (Fed. Cir. 2021) (reviewing

presidential action under Section 232 of Trade Expansion 

Act of 1962). In its supplemental notice, Solar adds that 

Maple Leaf has now been overruled by the Supreme Court’s 

recent decision in Loper Bright Enterprises v. Raimondo, 

603 U.S. ___, 144 S. Ct. 2244 (2024). Suppl. Notice (ECF 

No. 107) at 2. According to Solar, the panel’s adherence to 

the “clear misconstruction” standard of Maple Leaf led the 

court to “abdicate[] its constitutional role.” Pet. at 1; see 

also id. at 13 (“[T]he decision contravenes the 

1 Though Maple Leaf specifically concerned Sections 

201 through 203 of the Trade Act of 1974, 19 U.S.C. 

§§ 2251-53, the parties appear to agree (and we have never 

suggested otherwise) that the same standard of review governs presidential actions pursuant to Section 204, 19 

U.S.C. § 2254.

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4 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US

constitutional design and binding precedent by giving the 

President largely unchecked power to determine the scope 

of his own delegated authority.”). In Solar’s view, we must 

instead review issues of statutory construction de novo, 

even when we are considering presidential interpretation 

of a statute governing a field of activity largely committed 

to the President’s authority. See Pet. at 9-10, 14; see also 

Suppl. Notice at 2 (“[The] panel’s view that it was not called 

upon to decide whether the government’s interpretation of 

the statute is correct [in trade cases] . . . cannot be reconciled with Loper Bright.”) (internal citation and quotation

marks omitted).

The Petition is granted to the limited extent that the 

panel supplements the Original Opinion with the additional reasoning set out in this Supplemental Opinion. 

Specifically, we write to explain that whatever merit there 

may be to Solar’s contention that our Maple Leaf standard 

would benefit from review in light of recent Supreme Court 

jurisprudence, this case does not present an appropriate 

vehicle for undertaking such a task. This is because, as we 

show below, the same conclusions result from application 

of de novo review that the Panel Opinion reached by application of Maple Leaf.

I

This appeal involves Proclamation 10101: To Further 

Facilitate Positive Adjustment to Competition from Imports 

of Certain Crystalline Silicon Photovoltaic Cells (Whether 

or Not Partially or Fully Assembled into Other Products), 

85 Fed. Reg. 65639 (Oct. 10, 2020), issued by President 

Trump. Previously, in January 2018, President Trump had 

issued Proclamation 9693, which imposed duties on imports of solar panels into the United States. See Proclamation 9693: To Facilitate Positive Adjustment to Competition 

from Imports of Certain Crystalline Silicon Photovoltaic 

Cells (Whether or Not Partially or Fully Assembled into 

Other Products) and for Other Purposes, 83 Fed. Reg. 3541 

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SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 5

(Jan. 23, 2018). After the issuance of Proclamation 9693, 

importers of a certain type of solar panels – called bifacial 

solar modules, which “consist of cells that convert sunlight 

into electricity on both the front and back of the cells,” J.A. 

4, 5 – petitioned the United States Trade Representative 

(“USTR”) for an exclusion, asking that bifacial solar panels 

not be subjected to the duties. The USTR initially granted 

the exclusion, though shortly thereafter it attempted to 

withdraw it to again make bifacial solar panels subject to 

the duties. In Proclamation 10101, the President removed 

the exclusion of bifacial solar panels from the scheduled 

duties and increased the fourth-year duty from 15% to 18%. 

See 85 Fed. Reg. at 65639-40, Annex. In response to Proclamation 10101, importers of bifacial solar panels, including Solar, sued the United States in the Court of 

International Trade, contending that Proclamation 10101 

exceeded the President’s powers, as his pertinent statutory 

authority is purportedly limited to “modifying” Proclamation 9693, while Proclamation 10101 – in Solar’s view – did 

something more than merely “modify.” The Court of International Trade agreed with Solar, setting aside Proclamation 10101 and enjoining the government from enforcing it. 

The government appealed and, in the Panel Opinion, we 

reversed.

The Panel Opinion, in reviewing the President’s interpretation of the applicable statutory provisions, explicitly 

applied Maple Leaf’s “clear misconstruction” standard. See 

Panel Op. at 894. We explained:

It is important to stress at the outset that our review of Proclamation 10101 is limited to whether 

the President clearly misconstrued Section 

2254(b)(1)(B). . . . We are not called upon to decide 

whether the government’s interpretation of the 

statute is correct or how we would have construed 

the statute as an original matter. Nor do we evaluate the relative merits of the parties’ competing 

interpretations. Rather, our sole inquiry is 

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6 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US

whether the President’s interpretation, that he is 

permitted to make trade-restricting modifications 

and not just trade-liberalizing ones, is a clear misconstruction of the statute.

Panel Op. at 895. Although the Maple Leaf standard does 

not require us to review the disputes in this case de novo, 

doing so leads us to the same conclusions we reached in the 

Panel Opinion, rendering it unnecessary to decide if the 

Maple Leaf standard conflicts with other precedents. We 

provide the analysis behind these conclusions below.

II

The principal issue raised by the government in this

appeal is whether 19 U.S.C. § 2254(b)(1)(B)’s authorization 

that the President may grant a requested “reduction, modification, or termination” of an existing safeguard includes 

authorization to “modify” the safeguard to make it more 

trade restrictive (within the constraints of other applicable 

statutory provisions). Solar argued that the President’s 

authority is limited to trade-liberalizing (or neutral) modifications. The government countered that, instead, the 

statute’s structure, legislative history, and purpose all support the conclusion that the statute also authorizes the 

President to make trade-restrictive modifications. The 

Panel Opinion sided with the government. See Panel Op. 

at 896-98. Although our analysis in the Panel Opinion expressly applied Maple Leaf’s “clear misconstruction” standard, we considered the same sources and arguments that 

Solar now asserts must be evaluated de novo.

The Panel Opinion began its review with the statutory 

text itself, observing that the “statute does not expressly 

indicate whether ‘modify’ includes trade-restrictive 

changes or is limited to trade-liberalizing alterations.” 

Panel Op. at 895. We viewed this “statutory silence as favoring the government’s broader view,” as the statute does

not contain a “narrowing limitation.” Id. We also noted 

that, “[o]rdinarily, Congress uses words consistent with 

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SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 7

their well-understood meaning.” Id. In ascertaining the 

“well-understood” meaning of “modify,” we cited Supreme 

Court precedent in which “modify” was held to include

moderate changes in either direction. Id. at 896 (citing 

MCI Telecomm. Corp. v. AT&T Co., 512 U.S. 218, 225 

(1994)). We also pointed to dictionary definitions to the 

same effect. See id. at 895-96. We additionally observed 

that Solar “concede[d] that the government’s definition [of 

‘modify’] is a correct one.” Id. at 896. 

We also addressed legislative history, particularly an 

unenacted version of what became 19 U.S.C. 

§ 2254(b)(1)(B), which would have expressly defined “modify” as not including “increase[s]” in tariffs (i.e., “modify 

(but not increase)”). Id. at 895 n.5. That unambiguous prohibition on trade-restrictive modifications was deleted during the legislative process, strong evidence that Congress 

ultimately chose not to limit the scope of the term “modify” 

only to trade-liberalizing changes. See id.

We then evaluated the term “modify” in the context of

the broader structure and purpose of the Trade Act, as Solar had asked (and again in its Petition asks) us to do. See 

Panel Op. at 896-98; see also Food & Drug Admin. v. Brown 

& Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (“It 

is a fundamental canon of statutory construction that the 

words of a statute must be read in their context and with a 

view to their place in the overall statutory scheme.”) (internal quotation marks omitted). We began by addressing Solar’s contention that Section 2251(a) supported its narrow 

interpretation of “modify.” See SEIA Br.2 at 20 (relying on 

Section 2251 as purportedly indicative of “Congress’s 

2 Appellees SEIA and Nextera Energy, Inc. filed a 

joint brief (ECF No. 35) which we refer to as the “SEIA 

Brief” or “SEIA Br.” Appellees Invenergy Renewables LLC 

and EDF Renewables, Inc. filed a separate brief (ECF No. 

34) which we refer to as the “EDF Brief” or “EDF Br.”

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8 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US

explicit desire to ensure that safeguard measures impose 

no undue social or economic costs,” and arguing Congress 

“surely did not invite the President in section 204(b)(1)(B) 

to further restrict trade after the [domestic] industry succeeds in positively adjusting”). We rejected this contention, 

explaining that instead “Section 2251 provides that the 

safeguard statute has a broad remedial purpose.” Panel 

Op. at 896. Thus, we concluded that, rather than bolstering Solar’s position, Section 2251 (to the extent it was applicable to the President’s modification authority, as Solar 

advocated)3 actually favored the government’s view that 

the President is empowered to make modifications as necessary to provide continued relief to a domestic industry. 

See id.

We also looked at the Trade Act’s general definition of 

“modification,” noting it is open-ended and does not exclude 

anything, including further restrictions. Panel Op. at 896 

(discussing Section 2481(6)). Other provisions of the Trade 

Act too, we noted, use the term “modify” to include changes 

made in a trade-restrictive direction. See id. at 896-97 (discussing Sections 2252(e)(2)(C), 2253(a)(3)(C), and 

2254(b)(3)).

3 Solar faults the Panel Opinion for “uncritically deferring to the President’s internally inconsistent interpretation” of Section 2251, accusing us of concluding that this 

section “both does and does not apply to presidential modification authority simultaneously.” Pet. at 16. This is incorrect. The Panel Opinion was consistent in its holding

that Section 2251(a) does not operate to restrict the President’s safeguard modification authority, whether by limiting permitted modifications to those that are tradeliberalizing or by requiring a cost-benefit analysis of a modification.

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SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 9

Moreover, we rejected Solar’s policy concern that permitting the President to make trade-restrictive modifications pursuant to Section 2254(b)(3) creates an 

impermissible loophole. We reasoned that Congress has 

cabined the President’s modification authority in other significant ways (e.g., by imposing a phase-down requirement), though we also recognized that Congress is free to 

create “loopholes” if it wishes. Panel Op. at 897. Nor did 

historical practice help Solar because the record reflected 

at least one instance in which a President appears to have 

acted pursuant to Section 2254(b)(1) to take trade-restrictive action. Panel Op. at 897-98.

Finally, we addressed Solar’s argument that it would 

be backwards for Congress to permit the President to “modify” trade restrictions to become more restrictive where domestic industry has positively adjusted to competition 

while depriving the President of such trade-restricting 

power where domestic industry has not. See SEIA Br. at 

20-21 (noting distinction between subsection (b)(1)(A), 

which limits President only to “reduce” or “terminate” safeguard when “domestic industry has not made adequate efforts to” adjust to import competition, and subsection 

(b)(1)(B), which permits President more broadly to “reduce, 

modify, or terminate” safeguard when “domestic industry 

has made a positive adjustment to import competition”). 

We disagreed with Solar, finding more persuasive the government’s position that the “‘distinction [between subsections (b)(1)(A) and (b)(1)(B)] logically suggests that 

Congress intended to give the President greater flexibility 

to take action when progress is being made, to protect and 

ensure the continuation of that progress.’” Panel Op. at 

898 (quoting Opening Br. at 34).

All of the foregoing statements from the Panel Opinion 

are equally correct in the context of de novo review. Our 

review of the plain text of Section 2254(b)(1)(B), other provisions and the overall structure of the Trade Act, and legislative history leads us to agree with the government that

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10 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US

“modify” here includes trade-restrictive changes. We reach 

this determination without according any deference to the

President’s interpretation. Our conclusion in the Panel 

Opinion based on the “clear misconstruction” standard of 

Maple Leaf remains unchanged under de novo review.

III

In addition to the proper construction of “modify,” the 

Panel Opinion considered Solar’s contention that the President committed procedural errors in connection with issuing Proclamation 10101. While the Panel Opinion applied 

the “clear misconstruction” standard of Maple Leaf to these 

issues as well, we again reach the same conclusions applying de novo review.

A

Section 2254(b)(1)(B) provides:

(1) Action taken under section 2253 [i.e., a safeguard] . . . may be reduced, modified, or terminated 

by the President (but not before the President receives the [Commission’s] report . . . ) if the President . . . (B) determines, after a majority of the 

representatives of the domestic industry submits to 

the President a petition requesting such reduction, 

modification, or termination on such basis, that the 

domestic industry has made a positive adjustment 

to import competition.

19 U.S.C. § 2254(b)(1) (emphasis added). In the Panel 

Opinion, we endorsed the government’s interpretation of 

this provision, such that a presidential reduction, modification, or termination of a safeguard must be made based 

on a report from the International Trade Commission. 

Panel Op. at 899. In other words, “on such basis” in Section 

2254(b) refers to a Commission report. See Reply Br. at 29. 

Solar had argued, and reiterates in its Petition, that “on 

such basis” refers instead to a domestic industry request 

for a change, which must itself be based on the domestic 

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SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 11

industry’s positive adjustment to import competition. See 

SEIA Br. at 53; Pet. at 15.

While both readings of the statute are broadly reasonable, we are persuaded that the government’s position is 

more reasonable. Because “such” as used in text like this 

typically refers to something that has already appeared 

earlier in a sentence or paragraph, see, e.g., Such, Black’s 

Law Dictionary (11th ed. 2019) (definition including “[t]hat 

or those; having just been mentioned”), and the provision 

here refers to the domestic industry’s positive adjustment 

to import competition only after “on such basis,” the plain 

language of the statute is more supportive of the government’s position. That is, because the plain meaning of 

“such” is to refer backward to something previously mentioned – and the provision mentions the Commission report 

before “such” – rather than referring forward to something 

not yet mentioned – and the provision does not mention the 

requirement of domestic industry positive adjustment until 

after “such” – the text provides a strong indication that “on 

such basis” is referring to the Commission report and not

to the domestic industry’s positive adjustment. That commas subdivide the provision into several clauses does not 

alter our conclusions. See U.S. Nat’l Bank of Or. v. Indep.

Ins. Agents of Am., Inc., 508 U.S. 439, 455 (1993) (“No more 

than isolated words or sentences is punctuation alone a reliable guide for discovery of a statute’s meaning.”).

The overall structure of the Trade Act provides further 

support for the government’s view, as its reading of the 

statute promotes the Trade Act’s goals by predicating the 

President’s authority to act on his own Commission’s report – an independent, expert analysis – rather than leaving his authority entirely dependent on whether the 

domestic industry submits a petition expressly making the 

supposedly necessary representation. It would be an unusual choice for Congress to mandate that the President 

base his fact-finding on assertions by industry participants 

when, in the very same statutory provision, Congress 

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12 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US

requires that the President wait to act until after he receives a report from his own expert agency. We see nothing 

in the statute, including its text and structure, commending to us this improbable reading.

The government’s position is further favored by the inquiry into “context” that is essential to determining the 

best reading of statutory language. See Loper Bright, 

603 U.S. at ___, 144 S. Ct. at 2261 n.4 (“[S]tatutes can be 

sensibly understood only by reviewing text in context.”) (internal quotation marks omitted). As we explained above, 

see supra Part II, the President only has power to modify a 

safeguard when domestic industry has made a positive adjustment to import competition. The President lacks authority to make a modification, and may only reduce or 

terminate a safeguard, when domestic industry has not 

made a positive adjustment, i.e., the situation governed by 

Section 2254(b)(1)(A). It follows that any industry petition 

seeking a modification under Section 2254(b)(1)(B) necessarily and inherently must be urging the President that 

there has been a positive adjustment, rendering it redundant for Congress to write into the text a requirement that 

the petition expressly recite that assertion. There is no 

such redundancy under the government’s reading.

The legislative history does not undermine our conclusion. A conference report Solar contends “unequivocally 

links the phrase ‘on such basis’ to the domestic industry’s 

petition, without referencing the ITC’s report or any presidential finding,” Pet. at 15 (citing 1988 U.S.C.C.A.N. 1547, 

1721), does not overcome the plain meaning of “such.” See 

generally Glaxo Operations UK Ltd. v. Quigg, 894 F.2d 392, 

400 (Fed. Cir. 1990) (“[A]bsent a clearly expressed legislative intention to the contrary, a statute’s plain meaning 

must ordinarily be regarded as conclusive.”) (internal citation and quotation marks omitted). Furthermore, the conference report’s description of the statutory language does 

not match the enacted language in important respects, including in the specific standards of subsection (b)(1)(B). 

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SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 13

Compare 19 U.S.C. § 2254(b)(1)(B) (modification authorized if “the President . . . determines, after a majority of the 

representatives of the domestic industry submits to the 

President a petition requesting such reduction, modification, or termination on such basis, that the domestic industry has made a positive adjustment to import competition”)

(emphasis added), with 1988 U.S.C.C.A.N. at 1721 (modification authorized if “a majority of representatives of the domestic industry request such reduction, modification or 

termination on the basis that the domestic industry has 

made a positive adjustment to import competition”) (emphasis added); compare also 19 U.S.C. § 2254(b)(1)(A) (limiting relief under (A) to “reduction” or “termination”), with 

1988 U.S.C.C.A.N. at 1721 (describing (A) as including 

“modification”). Additionally, the relied-on language of the 

conference report does not by its terms require what Solar 

urges – an express recitation in the petition of positive adjustment even when the request for modification necessarily, inherently asserts such a positive adjustment. 

Thus, the conference report is simply not a reliable basis 

for adopting Solar’s position on the meaning of the words 

of the actual legislation that became law.

In sum, we conclude that the best reading of Section 

2254(b)(1)(B) is that the President’s modification power requires (i) a Commission report, (ii) a request from a majority of representatives of the domestic industry, and (iii) a 

Presidential determination that the domestic industry has 

made a positive adjustment to import competition. The 

Presidential determination must be based at least on the 

Commission report and may also (but need not) be based 

on the industry petition. Accordingly, our resolution of the 

parties’ dispute as to the meaning of “on such basis” is the 

same under de novo review as it is under Maple Leaf’s 

“clear misconstruction” standard of review.

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14 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US

B

Section 2254(b)(1)(B) further requires that the President determine “that the domestic industry has made a 

positive adjustment to import competition,” before ordering 

a reduction, modification, or termination of a safeguard 

(emphasis added). On de novo review, we continue to read 

this provision as sufficiently broad to be satisfied by the 

President’s determination in connection with Proclamation 

10101 that the applicable domestic industry “has begun to 

make” the required positive adjustment.

As we noted in the Panel Opinion, Section 

2254(b)(1)(B) is written in the present perfect tense, which 

can be used to refer to an action that was completed entirely in the past as well as an action still in progress. 

Panel Op. at 901. This plain-meaning understanding of 

“has made” is supported by other parts of the Trade Act, 

see, e.g., 19 U.S.C. § 2254(c)(1), (d)(1), which recognize that 

“positive adjustment” to import competition can be a process that takes some time. In addition, two of the conditions that the statutory scheme expressly identifies as 

constituting components of “a positive adjustment” – when 

“the domestic industry experiences an orderly transfer of 

resources” and “workers in the industry experience an orderly transition,” id. § 2251 (emphasis added) – use the 

present tense, contributing to the understanding that a 

positive adjustment by domestic industry is not just an end 

goal but may also describe a domestic industry that is in 

the process of an orderly transfer and transition.

Accordingly, our resolution of the parties’ dispute as to 

the meaning of “has made a positive adjustment” is the 

same under de novo review as it is under Maple Leaf’s 

“clear misconstruction” standard of review.

C

On de novo review, we also adhere to the Panel Opinion’s conclusion that the President is not required to reCase: 22-1392 Document: 110 Page: 14 Filed: 08/13/2024
SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 15

weigh costs and benefits when modifying a safeguard pursuant to Section 2254(b)(1). As we explained in the Panel 

Opinion, Section 2254(b)(1) makes no mention whatsoever 

of cost-benefit determinations. See Panel Op. at 901. 

While Sections 2251(a) and 2253(a)(1)(A) set out presidential obligations to weigh costs and benefits, nothing in the 

Section 2254 safeguard statute ties these cost-benefit analysis requirements to the President’s power to reduce, modify, or terminate a safeguard. In addition to the fact that 

the plain language of the statutory provisions does not require a cost-benefit analysis at the reduction, modification, 

or termination stage, we also explained in the Panel Opinion that the overall structure of the Trade Act supports our 

conclusion because only relatively small changes are permitted as “modifications” to safeguards and the overall 

phase-down requirement, see 19 U.S.C. § 2253(e)(5), already provides sufficient checks against the “absurd results” feared by the Court of International Trade. Panel 

Op. at 901-02.

Accordingly, our resolution of the parties’ dispute over 

the need for a renewed cost-benefit analysis at the modification stage is the same under de novo review as it is under 

Maple Leaf’s “clear misconstruction” standard of review.

IV

Solar denigrates the Maple Leaf standard as “breathtakingly deferential” and as springing from “an exaggerated misreading” of our earlier precedent. Pet. at 1, 9 

(citing Florsheim Shoe Co. v. United States, 744 F.2d 787 

(Fed. Cir. 1984)). It emphasizes that Maple Leaf is even 

more deferential than the now-discarded standard of Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 

467 U.S. 837 (1984), which was overruled in Loper Bright. 

See Pet. at 12 (“Even then, the Supreme Court has made 

clear that ‘[t]he judiciary is the final authority on issues of 

statutory construction and must reject administrative constructions which are contrary to clear congressional 

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16 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US

intent.’”) (quoting Chevron, 467 U.S. at 843 n.9); see also 

generally Gilda Indus., Inc. v. United States, 622 F.3d 

1358, 1363-67 (Fed. Cir. 2010) (suggesting link between 

Maple Leaf formulation and Chevron). As we have demonstrated, the outcome in this case is unaffected by whether 

or not we apply Maple Leaf’s “clear misconstruction” standard. Thus, we do not believe this case presents an appropriate vehicle for deciding whether the Maple Leaf 

standard should be retained.

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