Slip Op.  UNITED STATES COURT OF INTERNATIONAL TRADE INVENERGY RENEWABLES LLC, Plaintiff, and SOLAR ENERGY INDUSTRIES ASSOCIATION, CLEARWAY ENERGY GROUP LLC, EDF RENEWABLES, INC. and AES DISTRIBUTED ENERGY, INC., Plaintiff-Intervenors, v. UNITED STATES OF AMERICA, OFFICE OF THE UNITED STATES TRADE REPRESENTATIVE, UNITED STATES TRADE REPRESENTATIVE ROBERT E. LIGHTHIZER, U.S. CUSTOMS AND BORDER PROTECTION, and ACTING COMMISSIONER OF U.S. CUSTOMS and BORDER PROTECTION MARK A. MORGAN, Defendants, and HANWHA Q CELLS USA, INC. and AUXIN SOLAR, INC., Defendant-Intervenors. Before: Judge Gary S. Katzmann Court No. 19-00192

OPINION [The court denies Defendants’ motion to dismiss fo r failure to join an indispensable party, grants Plaintiffs’ motions to supplement their compla ints, denies Defendants’ motion to vacate and dismiss for mootness, and denies Defendants’ motion for leave from judgment.]

Dated: 0D\Court No. 19-00192 Page 2 Amanda Shafer Berman, John Brew, Kathryn L. Clune, Amanda Shafer Berman, and Larry Eisenstat, Crowell & Moring LLP, of Washington, DC and New York , NY, argued for plaintiff, Invenergy Renewables LLC and plaintiff-intervenors, Clearway Energy Group LLC and AES Distributed Energy, Inc . With them on the briefs was Frances Hadfield. Matthew R. Nicely and Daniel M. Witkowski, Hu ghes Hubbard & Reed LLP, of Washington, DC, argued for plaintiff-intervenor, Solar Energy Industries Association. With them on the briefs were Dean A. Pinkert and Julia K. Eppard. Kevin M. O’Brien and Christine M. Streatfe ild, Baker & McKenzie LLP, of Washington, DC, argued for plaintiff-intervenor, EDF Renewables, Inc. Stephen C. Tosini, Senior Tria l Counsel, Commercial Litigati on Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for defendants. With him on the brief were Joseph H. Hunt, Assistant Attorney General, Jea nne E. Davidson, Director, and Tara K. Hogan, Assistant Director. John M. Gurley, Dianna Dimitriuc-Quaia, and )ULHGHULNH 6 *ऺUJHQV , Arent Fox LLP, of Washington, DC, argued for defendant-intervenors, Hanwha Q CELLS USA, Inc . and Auxin Solar Inc

. Katzmann, Judge: In this hotly contested litigation arising from the solar industry, the court returns to its order preliminarily enjoining the United States and the Office of the United States Trade Representative (“USTR”) from withdrawing its previously granted exclusion from safeguard duties on imported bifacial solar modules, duties which the President imposed by proclamation to protec t domestic industry. 1 Prelim. Inj. Ord. and Op., Invenergy Renewables LLC v. United States, 43 CIT __, 422 F. Supp. 3d 1255 (2019), ECF No. 113 (“Invenergy I”); Ord. and Op. Denying Mot. to Show Cause, Invenergy Renewables LLC v. United States, 44 CIT __, 427 F. Supp. 3d 1402 (2020), ECF No. 149 (“Invenergy II”). Plaintiff Invenergy Renewables LLC (“Invenergy”), a renewable energy company, 2 joined by Plaintiff-Intervenors Solar Energy

1 For the purposes of this opinion, the terms “s olar modules” and “sol ar panels” are used interchangeably.

2 Invenergy describes itself as “the world’s l eading independent and pr ivately-held renewable energy company.” Invenergy’s Compl. ¶ 14, Oct. 21, 2019, ECF No. 13.Court No. 19-00192 Page 3 Industries Association (“SEIA”), Clearway En ergy Group LLP (“Clearway”), EDF Renewables, Inc. (“EDF-R”), and AES Distributed Energy, Inc. (“AES DE”) (collectively, “Plaintiffs”), filed a motion for a preliminary injunction (“PI”) to enjoin the United States, USTR, U.S. Trade Representative Robert E. Lighthizer, U.S. Cu stoms and Border Prot ection (“CBP”), and CBP Acting Commissioner Mark A. Morgan (collectively, “the Government”) from implementing the Withdrawal of Bifacial Solar Panels Exclusion to the Solar Pr oducts Safeguard Measure, 84 Fed. Reg. 54,244–45 (USTR Oct. 9, 2019) (“Octo ber Withdrawal”). Invenergy’s Mot. for Prelim. Inj., Nov. 1, 2019, ECF No. 49. Defendant-Intervenors Ha nwha Q Cells USA, Inc. (“Hanwha Q Cells”) and Auxin Solar Inc. (“Auxin Solar”) (collectively, “Defendant-Int ervenors”) join the Government in this case. Hanwha Q Cells’ Mot. to Interv ene as Def.-Inter., Nov. 4, 2019, ECF No. 50; Ord. Granting Mot., Nov. 4, 2019, ECF No. 54; Auxin Solar’s Mot. to Intervene as Def.-Inter., Feb. 7, 2020, ECF No. 136; Ord. Granting Mot., Feb. 10, 2020, ECF No. 141. The court granted Plaintiffs’ motion for a PI on December 5, 2019, observing that “[t]he Government must follow its own laws and procedures when it acts.” Invenergy I, 422 F. Supp. 3d at 1265. Before the court now are four motions, two of which were filed in response to USTR’s issuance of a new April 2020 determination to withdraw an exclusion for bifacial solar modules from safeguard duties. Determination on the Exclusion of Bifacial Solar Panels from the Safeguard Measure on Solar Products, 85 Fed. Reg. 21,497–99 (USTR Apr. 17, 2020) (“April Withdrawal”). First, the Government moved for the court to dismiss the case on the grounds that Plaintiffs lacked standing and failed to join an indispensable party. Def.’s Mot. to Dismiss and Resp. to Invenergy’s Mot. for a Prelim. Inj., N ov. 8, 2019, ECF No. 74 (“Def.’s Mot. to Dismiss”). The Government later moved for the court to vaca te the October Withdrawal and dismiss the case as moot. Def.’s Resp. to Pls.’ Mot. to Show Cause and Def.’s Mot. to Vacate Withdrawal andCourt No. 19-00192 Page 4 Dismiss Case as Moot, Feb. 7, 2020, ECF No. 139 (“Def. ’s Resp. to Pls.’ Mot. to Show Cause and Mot. to Vacate and Dismiss”). Next, the Government moved for the court to dissolve the PI because USTR “cured the sole reason for which the injunctive relief was granted.” Def.’s Mot. to Dissolve Prelim. Inj. at 1, Apr. 16, 2020, ECF No. 156 (“Def.’s Mot. to Dissolve”). Shortly thereafter, Plaintiffs moved to supplement their complaints to include USTR’s new decision, the April Withdrawal. Pls.’ Mots. for Leave to File Suppl. Compls., May 4, 2020, ECF Nos. 160–162 (“Pls.’ Mots. to Suppl.”). The court now (1) de nies the Government’s Motion to Dismiss; (2) grants Plaintiffs’ Motions to Supplement; (3) de nies the Government’s Motion to Vacate and Dismiss; and (4) denies the Motion to Dissolve th e PI. The court denies the Government’s motions without prejudice.
BACKGROUND The court presumes familiarity with its previous opinions -- (1) Invenergy I, supra, and (2) Invenergy II, supra, -- both of which provide additional information on the factual and legal background of this case. Information pertinent to this decision follows. As the court has noted: This case emerges from a debate withinthe American solar industry between entities that rely on the importation of bif acial solar panels and entities that produce predominately monofacial solar panels in the United States. Plaintiffs here, who include consumers, purchasers, and importers of utility-grade bifacial solar panels, argue that the importation of bifacial so lar panels does not harm domestic producers because domestic producers do not produce utility-scale bifacial solar panels; they thus oppose safeguard duties that they cont end increase the cost of these bifacial solar panels. Domestic producers, however, contend that solar project developers can use either monofacial or bifacial so lar panels, and thus safeguard duties are necessary to protect domestic production of solar panels. Both sides contend that their position better supports expanding sola r as a source of renewable energy in the United States. Invenergy I, 422 F. Supp. 3d at 1264.Court No. 19-00192 Page 5 The statutory scheme for imposition of safeguard duties has been summarized by the court as follows: Through Section 201, Congress provided a pr ocess by which the executive branch could implement temporary sa feguard measures to prot ect a domestic industry from the harm associated with an increase in imports from foreign competitors. Trade Act of 1974 §§ 201

– 04, 19 U.S.C. §§ 2251–54 (2012). Section 201 dictates that, upon petitions from domestic entities or i ndustries, the International Trade Commission (“ITC”) may make an affirmative determination that serious injury or a threat of serious injury to that industry exists. 19 U.S.C. § 2252. The President may then authorize discretionary measur es, known as “safeguards,” to provide a domestic industry temporary relief from serious injury. 19 U.S.C. § 2253. The statute vests the President with decision making authority ba sed on consideration of ten factors. 19 U.S.C. § 2253(a)(2). Safeguard measures have a maximum duration of four years, un less extended for another max imum of four years based upon a new determination by the ITC. 19 U. S.C. § 2253(e)(1). The statute also outlines certain limits on the President’s ability to act under this statute, including to limit new actions after the termination of safeguard measures regarding certain articles. See 19 U.S.C. § 2253(e). Further, the safeguard statute mandates that the President “shall by regulation provide for the efficient and fair administration of all actions taken for the purpose of providi ng import relief.” 19 U.S.C. § 2253(g)(1). Invenergy I, 422 F. Supp. 3d at 1265–66 (footnote omitted). Through Presidential Proclamation 9693 issued on January 23, 2018, the President imposed safeguard duties, desi gned to protect the domestic i ndustry, on imported monofacial and bifacial solar panels, but delegated authority to USTR to exclude products from the duties. 83 Fed. Reg. 3,541–51 (“Presidential Pr oclamation”). After a sixteen-m onth notice-and-comment process through which USTR considered requests for exclus ions, USTR decided to exclude bifacial solar panels from safeguard duties. Ex clusion of Particular Products Fr om the Solar Products Safeguard Measure, 84 Fed. Reg. 27,684–85 (USTR June 13, 2019) (“Exclusion”). Four months later, however, USTR published the October Withdrawal . The October Withdrawal explained that, “[s]ince publication of [the Exclusion] notice, th e U.S. Trade Representative has evaluated this exclusion further and, after consultation with th e Secretaries of Commerce and Energy, determined it will undermine the objectives of the safeguard m easure.” October Withdr awal at 54,244. AbsentCourt No. 19-00192 Page 6
court action, therefore, the Octobe r Withdrawal would have reins tituted safeguard duties on certain bifacial solar panels. Plaintiff Invenergy initiated this case in re sponse to the October Withdrawal. Summons, Oct. 21, 2019, ECF No. 1; Invenergy’s Compl ., Oct. 21, 2019, ECF No. 13. The Government subsequently moved for, and the court allowed, USTR to delay the effective date of the October Withdrawal to November 8, 2019. Def.’s Mot. to Stay Effective Date of Withdrawal, Oct. 25, 2019, ECF No. 23; Ord. Granting Mot., Oct. 25, 2019, ECF No. 29. The court then issued a temporary restraining order, Nov. 7, 2019, ECF No. 68, and later a PI, to enjoin USTR from reinstituting safeguard duties on certain bifacial solar panels through implementation of the October Withdrawal. Invenergy I, 422 F. S upp. 3d 1255. The PI found that USTR made the decision with only nineteen days’ notice to the public, without an opportunity for affected or interested parties to comment, and without a developed public record. Id. at 1286–88. The PI included enjoining USTR from amending the Harmoni zed Tariff Schedule of the United States (“HTSUS”) to reflect withdrawal of the Exclusion, “until entry of final judgment as to Plaintiffs’ claims against Defendants in this case.” Id. at 1295. In so ruling, the court held that the October Withdrawal of the Exclusion by the Government likely violated the Administrative Procedure Act (“APA”) on two grounds: (1) the rulemaking occu rred without notice and comment, id. at 1286– 87; and (2) it was likely done in an arb itrary and capricious manner, id. at 1287–88. In responding to Plaintiffs’ motion for a PI, th e Government moved to dismiss the case for Plaintiffs’ alleged lack of standi ng and failure to join an indispensable party. Def.’s Mot. to Dismiss. In issuing the PI, the court ordered th e parties to confer and submit a proposed briefingCourt No. 19-00192 Page 7

schedule on this issue. 3 Invenergy I, 422 F. Supp. 3d at 1295. Throughout late December 2019 and early January 2020, Plaintiffs filed four consen t motions for an extensi on of time to file the proposed briefing schedule and indicated to the c ourt that the parties were close to reaching an agreement to resolve this case. See Pls.’ Mot. for an Ext. of Time, Dec. 19, 2019, ECF No. 118; Ord. Granting Mot., Dec. 20, 2019, ECF No. 119; Pls. ’ Mot. for Ext. of Time, Dec. 27, 2019, ECF No. 121; Ord. Granting Mot., Dec. 27, 2019, ECF No. 122; Pls.’ Mot. for Ext. of Time, Jan. 3, 2020, ECF No. 123; Ord. Granting Mot., Jan. 3, 2020, ECF No. 124; Pls.’ Mot. for Ext. of Time, Jan. 17, 2020, ECF No. 125; Ord. Granting Mot., Jan. 17, 2020, ECF No. 126. However, on January 24, 2020, the Government f iled its Motion for Leave to File a Status Report and Status Report (“January Status Report” ), notifying the court and the other parties of USTR’s publication of “a notice in the Federal Register, requesting inte rested party comment regarding whether to withdraw the [Exclusion] from the safeguard measure pursuant to section 201 of the Trade Act of 1974, 19 U.S.C. § 2251, et se q., for bifacial solar panels contained in [Exclusion].” ECF No. 129. The court granted th e Government’s motion that same day, thus deeming the January Status Report filed. Or d. Granting Mot., Jan. 24, 2020, ECF Nos. 130, 131. USTR published the notice in the Federal Register three days later, thereby initiating the comment period. Procedures to Consider Re tention or Withdrawal of the Excl usion of Bifacial Solar Panels From the Safeguard Measure on Solar Products, 85 Fed. Reg. 4,756–58 (USTR Jan. 27, 2020) (“January Notice”). The January Notice acknowle dged the court’s PI “enjoining the U.S. Trade Representative from withdrawing the exclusion on bifacial solar panels from the safeguard

3 Plaintiffs Invenergy, Clearway, AES DE, and SE IA responded to the Government’s Motion to Dismiss on December 13, 2019. Invenergy, Clearway , and AES DE’s Resp. in Opp’n to Def.’s Mot. to Dismiss, ECF No. 115; Resp. of Pl.-Inter. SEIA in Opp’n to Def.’s Mot. to Dismiss, ECF No. 116. The Government and Defe ndant-Intervenors never replied to the responses to the motion and have not pursued this motion before the court.Court No. 19-00192 Page 8 measure,” and noted that “[i]f the U.S. Trade Representative determines after receipt of comments pursuant to this notice that it would be appropriate to withdraw the bifacial exclusion or take some other action with respect to the exclusion, the U.S. Trade Representative will request that the [c]ourt lift the injunction.” Id. at 4,756. The January Notice provided a deadline for comments of February 17, 2020 and for responses to those comments of February 27, 2020. Id. at 4,757. In response, Plaintiffs Invenergy, Clearway, and AES DE filed their Motion to Show Cause as to Why the Court Should Not Enforce the Preliminary Injunction, Jan. 30, 2020, ECF No. 132, alleging that the Government’s pub lication of the January Notice viol ated the PI. Plaintiffs asked the court to “order Defendants to show cause as to why it should not enforce the PI by ordering USTR to cease proceedings under the [January Notice], and instead proceed to briefing on Plaintiffs’ substantive and procedur al claims.” Mem. in Supp. of Mot. to Show Cause as to Why the Ct. Should Not Enforce the PI at 12, Jan. 30, 2020, ECF No. 132. The court ordered the Government and Hanwha Q Ce lls to respond, Jan. 31, 2020, ECF No. 133, which they did on February 7, 2020, Def.’s Resp. to Pls.’ Mot. to Show Cause and Def.’s Mot. to Vacate and Dismiss; Hanwha Q Cells’ Resp. to Pls.’ Mot. to Show Cause, ECF No. 140. The Government included with its response a motion to vacate the October Withdrawal and to dismiss the case as moot. Def.’s Mot. to Vacate and Dismiss. The court held oral argument on Plaintiffs’ Motion to Show Cause on February 12, 2020. ECF No. 145. The court then denied Plaintiffs’ motion stating, “the Government’s [January Notice] di d not violate the text of [the PI] because the [January Notice] does not (1) implement the [October Withdrawal]; (2) modify the HTSUS; or (3) enforce or make effective the [October Withdrawal] or modifications to the HTSUS related to the [October Withdrawal].” Invenergy II, 427 F. Supp. 3d at 1407. The court further held that the January Notice alone did “not constitute a final decision to implement the previous or any new withdrawalCourt No. 19-00192 Page 9 of the Exclusion of bifacial solar panels.” Id. The court, moreover, made clear that “[it] retains exclusive jurisdiction over the implementation, enforcement, or modification of the [October Withdrawal] until such date as a final j udgment is entered in this case.” Id. Following the court’s decision to deny the Plai ntiffs’ Motion to Show Cause, the parties continued to brief the Government’s Motion to Vacat e and Dismiss. Plaintiffs filed responses to the motion on March 16, 2020. Pls.’ Resp. in Opp’n to Mot. to Vacate and Dismiss, ECF No. 152 (“Pls.’ Resp. to Def.’s Mot. to Vacate and Dismi ss”). The Government and Defendant-Intervenor Hanwha Q Cells replied on April 6, 2020. Def.’s Reply to Pls.’ Resp. to Def.’s Mot. to Vacate and Dismiss, ECF No. 153; Def.-Inter. Hanwha Q Cells’ Reply to Pls.’ Resp. to Def.’s Mot. to Vacate and Dismiss, ECF No. 154 (“Hanwha Q Ce lls’ Reply to Def.’s Mot. to Vacate and Dismiss”). Thus, the Government’s Motion to Vacate and Dismiss has been fully briefed by all parties. On April 14, 2020, the Government filed another status report to inform the court of the issuance of USTR’s April Withdrawal. Def.’s Status Report, ECF No. 155 (“April Status Report”). The April Withdrawal constitutes a withdrawal of the Exclusion of bifacial solar panels from safeguard duties -- the same ultimate conclusion as the October Withdrawal. In its April Status Report, the Government explained that “[i]n response to the [c]ourt’s preliminary conclusion that repealing the withdrawal of the exclusion ‘requi res rulemaking subject to . . . APA notice and comment,’ USTR ‘opened a public docket,’ an d received 15 comments regarding the bifacial exclusion and 49 subsequent comments responding to the initial comments.” April Status Report at 2 (internal citations omitted). Further, the Government explained that USTR “based the [April Withdrawal] on the comments and evidence received.” Id.Court No. 19-00192 Page 10 Two days later, the Government filed its Motion to Dissolve the Preliminary Injunction, pursuant to USCIT Rule 60(b)(5). Def.’s Mot. to Dissolve. The Government argued that the April Withdrawal “cured the sole reason for which the inj unctive relief was granted.” Id. at 1. Plaintiffs filed responses in opposition to the motion on May 7, 2020. Invenergy, Clearway, and AES DE’s Resp. in Opp’n to Def.’s Mot. to Dissolve Prelim. Inj., ECF No. 163 (“Invenergy’s Resp. to Def.’s Mot. to Dissolve”); Pl.-Inter. SEIA’s Resp. to Def.’s Mot. to Dissolve PI, ECF No. 164 (“SEIA’s Resp. to Def.’s Mot. to Dissolve”); Pl.-Inter. EDF- R’s Resp. in Opp’n to Def.’s Mot. to Dissolve, ECF No. 166 (“EDF-R’s Resp. to Def.’s Mot. to Dissolve”). Plaintiffs argued that the April Withdrawal was an arbitrary and capricious decisi on and thus did not cure the likely APA violation previously identified by the court. Id. Shortly thereafter, Plaintiffs f iled motions to supplement their complaints to include the April Withdrawal . Pls.’ Mots. to Suppl. The Government and Defendant-Intervenors subsequently responded. Def.’s Resp. to Pls.’ Mots. for Leave to File Suppl. Compls., May 11, 2020, ECF No. 171 (“Def.’s Res p. to Pls.’ Mots. to Suppl.”); Def.-Inters.’ Resp. to Pls.’ Mots. for Leave to File Suppl. Compls., May 12, 2020, ECF No. 173 (“Def.-Inters.’ Resp. to Pls.’ Mots. to Suppl.”). The court issued questions regarding the Gove rnment’s Motion to Dissolve to the parties on May 8, 2020, ECF No. 169, to which the partie s responded on May 12, 2020, Def.’s Resps. to the Ct.’s Questions of May 8, 2020, ECF No. 172 (“ Def.’s Resps. to Ct.’s Questions”); Def.- Inters.’ Resps. to Ct.’s Questions Issued May 8, 2020, ECF No. 174 (“Def.-Inters.’ Resps. to Ct.’s Questions”); Pls.’ Resps. to Ct.’s Questions Regarding Mot. to Dissolve PI, ECF No. 175 (“Pls.’ Resps. to Ct.’s Questions”). The Government at tached two memoranda to its responses to the court’s questions. Mem. from DUSTR Jeffrey D. Gerrish and General Counsel Joseph Barloon to USTR Robert Lighthizer, Apr. 13, 2020, Attach. 1 to Def.’s Resp. to Ct.’s Questions, ECF No.Court No. 19-00192 Page 11 172-1 (“Lighthizer Decision Memorandum”); Mem. from DUSTR Jeffrey D. Gerrish and General Counsel Joseph Barloon to USTR R obert Lighthizer, Apr. 10, 2020, Attach. 2 to Def.’s Resp. to Ct.’s Questions, ECF No. 172-2 (“Gerrish Memo randum”), (collectively, “USTR Memoranda”). The USTR Memoranda consist of Deputy U.S. Trad e Representative Jeffrey D. Gerrish’s and U.S. Trade Representative General Counsel Joseph Barloon’ s analysis of USTR’s authority to withdraw an exclusion, their analysis of comments r eceived pursuant to the January Notice, and a recommended decision, initialed by U.S. Trade Representative Robert Lighthizer. Id. The court held oral argument via tel econference on May 13, 2020. ECF No. 177 (“Oral Arg.”). Following the teleconference, at the court’ s direction, the parties f iled supplemental briefs on May 15, 2020. Invenergy, Clearway, AES DE’s Post -Arg. Submission in Opp’n to Def.’s Mot. to Dissolve PI, ECF No. 182 (“Invenergy’s Post-OA Filing”); Pl.-Inter. SEIA’s Post-Arg. Br. in Opp’n to Def.’s Mot. to Dissolve PI, ECF No. 18 1 (“SEIA’s Post-OA Filing”); Pl.-Inter. EDF-R’s Suppl. Resp. After Oral Arg. to Def.’s Mot. to Dissolve PI, ECF No. 180 (“EDF-R’s Post-OA Filing”); Def.’s Post-Hearing Br., ECF No. 179 (“ Def.’s Post-OA Filing”); Suppl. Br. of Def.- Inters. Hanwha Q Cells and Auxin Solar, EC F No. 183 (“Def.-Inters.’ Post-OA Filing”).
JURISDICTION The court has jurisdiction over this case pur suant to 28 U.S.C. § 1581(i) (2018), which provides that the court “shall have exclusive jurisdiction of a ny civil action commenced against the United States, its agencies, or its officers, that arises out of any law of the United States providing for . . . [the] administration a nd enforcement” of tariffs and duties.
DISCUSSION The court takes this opportunity to address all outstanding motions in this case because of the implications of each motion on the others. The court first denies the Government’s Motion toCourt No. 19-00192 Page 12 Dismiss filed in November 2019 in response to Plai ntiffs’ Motion for a PI. Next, the court grants Plaintiffs’ Motions to Supplement. The court th en denies the Government’s Motion to Vacate and Dismiss. Finally, the court denies the Govern ment’s Motion to Dissolve the PI. The court addresses each of these motions in turn and sets forth its reasoning.
I. The Court Denies the Government’s November Motion to Dismiss. As a preliminary matter, the court first addresses the Government’s outstanding Motion to Dismiss, filed with the court on November 8, 2019, before the court issued the PI. The Government argued that the court should dismiss the case because (1) Invenergy lacks Article III standing; (2) Invenergy lacks prudential standing; 4 and (3) Invenergy has not joined an indispensable party. Def.’s Mot. to Dismiss at 11–21. Later that same day, the court granted the Motion to Intervene of EDF-R, a self-described “importer, purchaser, and user of bifacial solar modules.” EDF-R’s Unopposed Mot. to Intervene as Pl.-Inter. at 2, Nov. 7, 2019, ECF No. 69; Ord. Granting EDF-R’s Mot. to Intervene, Nov. 8, 2019, ECF No. 78. On December 5, 2019, the court issued the PI, in which it squarely addr essed the Government’s objections to standing, concluding that Invenergy, both independently and as joined by Plaintiff-Intervenors, had Article III and statutory standing necessary for the court to exercise jurisdiction. Invenergy I, 422 F. Supp. 3d at 1275–80. Plaintiffs Invenergy, Clearway, AES DE, and SEIA then responded to the Government’s Motion to Dismiss on December 13, 2019, discussing and incor porating the court’s standing analysis in Invenergy I. Invenergy, Cl earway, and AES DE’s Resp. in Opp’n to Def.’s Mot. to Dismiss, ECF No. 115; Resp. of Pl.-Inter. SEIA in Opp’n to Def.’s Mot. to Dismiss, ECF

4 As the court noted in Invenergy I, “prudentia l standing” is “a misnomer” and should be referred to as “statutory standing.” 422 F. Supp. 3d at 127 5 (quoting Lexmark Int’l Inc. v. Static Central Components, Inc., 572 U.S. 118, 126, 128 n.4 (2014)).Court No. 19-00192 Page 13

No. 116. The Government and Defendant-Intervenor s, however, never filed a reply. See USCIT R. 7(d) (setting deadline for reply to a response filed to dispositive motion). The reply would have provided the Governme nt and Defendant-Intervenors an opportunity to respond to both the intervention in the case of an importer of bifacial so lar panels, EDF-R, and the issuance of the PI, including the court’s standi ng analysis in its opinion. It appears instead, however, that the Government has abandoned this initial Motion to Dismiss. Neither the Government nor Defendant-Interve nors have made any subsequent motions or mentions of this Motion to Dismiss since issuance of the PI. Furt hermore, when directly asked about this motion by the court in its written questions to the parties and at the most recent oral argument, the Government declined to acknowledge that motion or answer the question as to that motion. See Oral Arg.; Def.’s Resps. to Ct.’s Questions at 4. The court concludes that the Motion to Dismis s must be denied because the Government has failed to pursue this motion, despite ample opportunity to do so and direct questioning by the court. See Silicon Graphics, Inc. v. ATI Techs., Inc., 607 F.3d 784, 801 (Fed. Cir. 2010) (upholding district court’s entry of judgment base d on abandoned and unargued claims and stating that “[i]t is a claimant’s burden to keep the district court clearly apprised of what parts of its claim it wishes to pursue and which parts, if any, it wish es to reserve for anothe r day”); Coal. for the Abolition of Marijuana Prohibition v. City of Atlanta, 219 F.3d 1301, 1326 (11th Cir. 2000) (“The appellants’ failure to brief and argue this issue dur ing the proceedings before the district court is grounds for finding that the issue has been abandoned.”). II. The Court Grants Plaintiffs’ Motions to Supplement Their Complaints. The court next exercises its discretion to grant Plaintiffs’ Motions to Supplement their complaints pursuant to USCIT Rule 15(d). After the Government filed the April Status ReportCourt No. 19-00192 Page 14 alerting the parties to USTR’s new final determination to withdraw the Exclusion, the April Withdrawal, Plaintiffs moved to supplement their complaints to “add facts and claims regarding” the April Withdrawal. See, e.g., Me m. of Points and Authorities in Supp. of the Pl. and Pl.-Inters.’ Mot. for Leave to File Suppl. Compls. at 1, May 4, 2020, ECF No. 161 (“Invenergy’s Mem. re: Suppl. Compl.”). Plaintiffs argue that suppl ementing their complaints “will avoid piecemeal litigation, allow a prompt and effi cient resolution of the entire c ontroversy among the parties, and impose no prejudice on the United States.” I d. at 3–4. The Government and DefendantIntervenors, for their part, do not object to supplem entation of the complaints , but rather defer to the court’s judgment as to whether supplementati on here meets the requirements of USCIT Rule 15(d). See Def.’s Resp. to Pls.’ Mots. to Suppl. at 1; Def.-Inters.’ Resp. to Pls.’ Mots. to Suppl. at
1. USCIT Rule 15(d) states that “[o]n motion and reasonable notice, the court may, on just terms, permit a party to serve a supplemental pl eading setting out any transaction, occurrence, or event that happened after the date of the pleadi ng to be supplemented.” Thus, it is within the court’s discretion to grant such a motion. The court has described the USCIT Rule 15 standard as “equitable and lenient.” Ar lanxeo USA LLC v. United States, 42 CIT __, __, 337 F. Supp. 3d 1350, 1356 (2018). Further, the Federal Circuit has a dopted the Supreme Court’s view of Rule 15 under the corresponding Federal Rules of Civil Proce dure as a mandate “which declares that leave to amend ‘shall be freely given when justice so re quires’ [that] ‘is to be heeded.’” Intrepid v. Pollock, 907 F.2d 1125, 1128 (Fed. Cir. 1990) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). The Federal Circuit in Intrepid also noted that “Rule 15(d) unequivocally allows supplementing a complaint with a count based on later events.” Id. at 1129 (“Where the supplemental pleading with respect to such late r events relates to th e same cause of actionCourt No. 19-00192 Page 15 originally pleaded, the Supreme Court held, inGriffin v. School Board, 377 U.S. 218, 227 (1964), that it would be an abuse of di scretion to deny the amendment.”). Factors that may weigh against permitting amendment or supplementation of a co mplaint include: “[u]ndue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the o pposing party by virtue of allowance of the amendment, [and] futility of the amendment.” Foman, 371 U.S. at 182. Further, this court’s rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of ev ery action and proceeding.” USCIT R. 1. The court concludes that equity and judicial efficiency dictate that it grant Plaintiffs’ Motions to Supplement. The April Withdrawal is a later-in-time event that is sufficiently connected to the original pleading because of its impact on the Exclusion, and Plaintiffs’ claims regarding the legality of the April Withdrawal are substantially similar to those in their original complaints. Furthermore, the court has already established its jurisdiction to hear these claims, including by ruling on Plaintiffs’ standing to chal lenge the USTR’s decision regarding safeguard tariffs on bifacial solar panels. Invenergy I, 422 F. Supp. 3d at 1271–80. The court agrees that to require Plaintiffs “to file a brand new suit to challenge the [April Withdrawal]” would “waste the parties’ and the [c]ourt’s resour ces given that this [c]ourt is already familiar with both the jurisdictional and merits issues in this case that were raised by Plaintiffs’ challenge to the [October Withdrawal].” See Invenergy’s Mem. re: Suppl. Compl. at 3. Further, because the Government and Defe ndant-Intervenors do not oppose the motion, see Def.’s Resp. to Pls.’ Mots. to Suppl. at 1; Def.-Int ers.’ Resp. to Pls.’ Mots. to Suppl. at 1, the court finds that allowing Plaintiffs to supplement their complaints will not prejudice the Government or Defendant-Intervenors. There be ing no indication of undue delay, lack of notice, or bad faith onCourt No. 19-00192 Page 16 the part of Plaintiffs, the c ourt concludes that none of th e factors that weigh against supplementation is present here. Therefore, the c ourt grants Plaintiffs’ Motions to Supplement, and deems their supplemental complaints filed.
III. The Court Denies the Government’s Mo tion to Vacate the October Withdrawal and Dismiss the Case as Moot. After the publication of the January Notice and the initiation of a new notice-and-comment period to consider withdrawal of the Exclusi on by USTR, the Government moved to vacate the October Withdrawal and to dismiss the case as m oot in order to clear the way for implementation of a new determination by USTR. Def.’s Mot. to Vacate and Dismiss at 10. The Government explained that, while it was not c onfessing error in USTR’s issuan ce of the October Withdrawal, USTR wished to “address interested party comment s in the first instance,” which would “provide certainty to interested parties during the remaining term of the safeguard measure.” Id. The Government further argued that both USTR’s initiation of a notice-and-comment period and the requested vacatur would moot Plai ntiffs’ claims. Id. at 11. Defe ndant-Intervenor Hanwha Q Cells supported this motion by arguing that the court should vacate the October Withdrawal and noting that, at least at the time, USTR’s January Notice had not produced a final agency action that was ripe for review. Hanwha Q Cells’ Reply to Def.’s Mot. to Vacate and Dismiss at 10. Plaintiffs opposed vacatur of the October Withdrawal and di smissal of the case as moot because they argued that the court could not va cate an agency decision without a final judgment and that the case should not be dismissed due to the ongoing process initiated by the January Notice. Pls.’ Resp. to Def.’s Mot. to Vacate a nd Dismiss at 6–19. Specifi cally, Plaintiffs opposed vacatur of the October Withdrawal because the Government neither confessed error nor requested a voluntary remand, and the court had made no fina l decision on the merits. Id. at 7–8 (citing SKF USA v. United States, 254 F.3d 1022, 1028–29 (Fed. Cir. 2001); Nat’l Park s Conservation Ass’nCourt No. 19-00192 Page 17

v. Salazar , 660 F. Supp. 2d 3, 4–5 (D.D.C. 2009)). In light of the court’s decision, discussed supra, Discussion, Section II, to allow Plaintiffs to supplement their complaints, thus establishing the court’s jurisdiction over claims related to the April Withdrawal, the court addresses the Government’s mootness argument before separately addressing its request for vacatur of the October Withdrawal. The court first denies the Government’s Motion to Vacate and Dismiss for mootness because, particularly in light of the supplementa l complaints, a live dispute no doubt exists. In order to maintain jurisdiction to adjudicate a dispute, a case must present a live dispute between the parties for which the court can provide re lief. Chafin v. Chafin, 568 U.S. 165, 171–72 (2013). “There is thus no case or controversy, and a suit becomes moot, ‘when the issues presented are no longer live or the parties lack a legally cognizable interest in th e outcome.’” Id. at 172 (quoting Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013 )) (other quotations omitted). Unlike the Government’s Motion to Dismiss filed in Nove mber, the Government has fully briefed and pursued its Motion to Vacate and Dismiss for mootne ss. However, the Government filed, and the parties briefed, the motion before USTR issued th e April Withdrawal and before Plaintiffs moved to supplement their complaints to reflect the Apr il Withdrawal. Indeed, one of the Government’s arguments in support of its motion was that “any complaint regarding the outcome of USTR’s proceeding is necessarily speculative.” Def.’s Mot. to Vacate and Dismiss at 11. Because the court today grants Plaintiffs’ Motions to Suppl ement their complaints, the court must deny the Government’s Motion to Vacate and Dismiss the case as moot because, as the parties do not dispute, a live controversy regarding the legality of the April Withdrawal is now before the court. See Pls.’ Resps. to Ct.’s Questions at 8 (“[I]f this [c]ourt grants Plaintiffs’ Motions to Supplement the Complaints, then plainly the Court has jurisdiction over the [April Withdrawal] under 28Court No. 19-00192 Page 18 U.S.C. § 158l(i)(2)–(4) and the APA.”); Def.’s Resps. to Ct.’s Questions at 8 (“If the [c]ourt were to allow the filing of supplement al complaints after dissolving the injunction, then, subject to any other jurisdictional defects that may be identified, [P]laintiffs could challenge the merits of the April Withdrawal, including filing motions for preliminary injunction and dispositive briefing.”). Separate and apart from the April Withdrawal , the court also denies the Government’s request for vacatur of the October Withdrawal because the Government has not met its burden of establishing a legal basis on which the court can grant such a motion. The court may vacate an agency decision through a final dis position of a case or via remand of the case to the agency. See Limnia, Inc. v. United States Dep’t of En ergy, 857 F.3d 379, 381 (D.C. Cir. 2017) (reversing a district court grant of a voluntary remand where th e agency did not intend to revisit the challenged agency decision on review); Concilio de Salud Inte gral de Loiza, Inc. v. Perez-Perdomo, 551 F.3d 10, 16–17 (1st Cir. 2008) (reversi ng a district court’s dissolution of a PI based on sufficient compliance with the court’s order because the di strict court did not resolve outstanding legal issues, which would impact compliance before diss olving the PI); Nat’l Pa rks Conservation Ass’n , 660 F. Supp. 2d at 5 (denying a motion to vacate an agency rule and remand where it would “wrongfully permit the Federal defe ndants to bypass established statutory procedures for repealing an agency rule”). 5 The Government, however, has provide d no legal authority in support of the

5 Defendant-Intervenor Hanwha Q Cells points the court to a decisi on by the United States District Court of Colorado, in which the court vacated an agency decision without first adjudicating the merits of the case. Hanwha Q Ce lls’ Reply to Def.’s Mot. to Vacat e and Dismiss at 4 (citing Center for Native Ecosystems v. Salazar, 795 F. Supp. 2d 1236, 1240–42). However, vacatur in that case was in the context of Plaintiffs’ request for re mand after the basis for the agency’s decision, a separate legal opinion by an executive branch offi cial, had been withdrawn. Center for Native Ecosystems, 795 F. Supp. 2d at 1239, 1242 (D. Colo. 2013). That case is not persuasive here because USTR has not requested a remand from the court, which would have guaranteed ongoing jurisdiction over any decision by US TR to withdraw the Exclusion. Instead, the Government has argued that the court did not have jurisdiction over the April Withdrawal until challenged in this or another case. Def.’s Resps. to Ct.’s Questions at 6 (“Unless and until the [c]ourt grantsCourt No. 19-00192 Page 19 proposition that a court can vacate an agency de cision before final disposition of the case or without a voluntary remand request from the agency . In response to the court’s question on this po int, the Government argued that the April Withdrawal was designed to supersede the October Withdrawal. Def.’s Resps. to Ct.’s Questions at 2–3 (answering “Yes” to the court’s question about whether it was the Government’s position that the April Withdrawal legally supersededthe October Withdrawal and noting the April Withdrawal’s prospective applica tion). At this stage in the litigation, however, the Government has not yet demonstrated a legal basis on which the court can vacate the October Withdrawal. The Government has not confe ssed error, requested remand, or indi cated that its position regarding the October Withdrawal has changed in any way. See Def.’s Mot. to Vacate and Dismiss at 10–11 (noting that the USTR issued the January Notice “without confessing error,” but that it nonetheless mooted Plaintiffs’ alleged procedur al violation); Def.’s Resps. to Ct.’s Questions at 9 (“USTR’s proceeding leading to the April Withdrawal wa s not a remand proceeding.”). Moreover, the Government’s introduction of the USTR Memoranda two days before oral argument on the Government’s Motion to Dissolve the PI raises cons iderable questions -- ones which have not yet been briefed -- as to whether the publication of the April Withdrawal in the Federal Register marked the completion of a new determination. See Def.’s Resps. to Ct.’s Questions. Thus, to the extent the Government argues the April Withdraw al legally supersedes the October Withdrawal, it must also demonstrate that the new determination is complete. The Government has neither provided a legal basis on which the court can grant vacatur, as both final disposition on the merits

[P]laintiffs’ motions to supplement their complaints, the [c]ourt will not have assumed jurisdiction to entertain any challenge to the April Withdrawal ”). In any event, with today’s opinion and order granting Plaintiffs’ Motions to Supplement their complaints to include the April Withdrawal, the court establishes jurisdiction ove r this new decision by USTR.Court No. 19-00192 Page 20 or voluntary remand do not apply he re, nor proven that the April W ithdrawal legally supersedes or rescinds the October Withdrawal; thus, the cour t must deny the motion for vacatur at this stage. The court denies the Government’s Motion to Vacate and Dismiss withoutprejudice and takes no position as to the outcome of any subsequent reque sts to vacate the October Withdrawal in the

context o f new developments.
IV. The Court Denies the Government’s Motion to Dissolve the PI . Finally, the court denies the Government’s Mo tion to Dissolve the PI pursuant to USCIT Rule 60(b)(5). The Government filed this motion shortly after notifying the court of publication of USTR’s April Withdrawal. Def.’s Mot. to Diss olve; April Status Report. Plaintiffs responded that they opposed the motion before filing their own Motions to Supplement. See Invenergy’s Resp. to Def.’s Mot. to Dissolve; SEIA’s Resp. to Def.’s Mot. to Dissolve; EDF-R’s Resp. to Def.’s Mot. to Dissolve. The most recent oral argument also focused on the parties’ arguments regarding dissolution of the PI. Oral Arg. USCIT Rule 60(b)(5) states that “the court ma y relieve a party or its legal representative from a final judgment, order, or proceeding . . . [when] the judgment has be en satisfied, released, or discharged; it is based on an ea rlier judgment that has been reversed or vacated; or applying it prospectively is no longer equitable.” As the c ourt noted in its opinion denying Plaintiffs’ Motion to Show Cause, the court has continuing ju risdiction over the injunction on the October Withdrawal. Invenergy II, 427 F. Supp. 3d at 1407 (citing In re Shenango Group, 501 F.3d 338 (3d Cir. 2007); In re Tomlin, 105 F.3d 933 (4th Cir. 1997)). The court has significant discretion in determining whether it is appr opriate to continue to enforce a preliminary injunction. See Sys. Fed’n No. 91 v. Wright, 364 U.S. 642, 647 (1961) (noting that “an injunction often requires continuing supervision by the issuing court and al ways a continuing willingne ss to apply its powersCourt No. 19-00192 Page 21 and processes on behalf of the party who obtained that equitable relief”); Morita v. Application Art Labs. Co., Nos. 89–1270, 89–1293, 1989 WL 83256, at *1 (Fed. Cir. July 28, 1989) (noting that appellate review of denial of motion to dissolve preliminary injunction is “limited to determining . . . whether the district court abusedits discretion”); Kreepy Krauly U.S.A. Inc., v. Sta-Rite Indus., Inc., Nos. 97-1091, 97-1368, 1998 WL 196750, at *9–10 (Fed. Cir. Apr. 24, 1998) (same). USCIT Rule 60(b)(5) allows the court to relie ve a party from a judgment where factual or legal circumstances have sufficiently changed such that continued enforcement of the injunctive relief would be inequitable. See AIMCOR Al a. Silicon, Inc. v. United States, 23 CIT 932, 939, 83 F. Supp. 2d 1293, 1299 (1999). “A change in operative fact may serve as a basis for vacating a preliminary injunction.” Concilio de Salud Integral de Loiza, 551 F.3d at 16 (1st Cir. 2008) (citing Agostini v. Felton, 521 U.S. 203, 215 (1997)). In dissolving an injunction, the court requires the moving party to show both changed circumstances and that continuation of the injunction would be inequitable. See Morita , 1989 WL 83256, at *1–2 (noting that court must inquire as to “whether the movant has shown th at changed circumstance s warrant discontinuation of the preliminary relief,” and declining to di ssolve injunction because the defense’s new allegations did not “compel the district court to disturb its earlier finding as to likelihood of success”); AIMCOR Ala. Silicon, 83 F. Supp. 2d at 1299 (noting thatthe moving party “bears the burden of showing that changed circumstances . . . make the continuation of the injunction inequitable”); Ad Hoc Shrimp Trade Action Comm. v. United States, 32 CIT 666, 670, 562 F. Supp. 2d 1383, 1388 (2008) (same). The burden is on th e defendant to demonstrate to the court that the PI “is unnecessary and should be recons idered or dissolved.” SKF USA Inc. v. United States, 28 CIT 170, 182, 316 F. Supp. 2d 1322, 1334 (2004). The requirement that the movingCourt No. 19-00192 Page 22 party meet this dual burden of showing changed ci rcumstances and inequity “prevents an enjoined party from constantly challenging the imposition of a preliminary injunction and relitigating arguments on motions to dissolve that have alrea dy been considered by the district court in its initial decision.” See Sprint Commc’ns Co. v. CAT Commc’ns Int’l Inc., 335 F.3d 235, 242 (3d Cir. 2003). The Government argues that the April Withdrawal “cured the sole basis -- failure to comply with the notice and comment provisions of the AP A --” for Plaintiffs’ likelihood of success on the merits, justifying injunctive relief. Def.’s Mot. to Dissolve at 7. Thus, the Government maintains that “[t]here has been a significant change in ‘factual conditions’ that warrants dissolution of the preliminary injunction.” Id. The Government furthe r contends that “there is no basis to assume that the [April Withdrawal] is unlawful and to maintain the extraordinary remedy of injunctive relief” because, the Government claims, it was a new and separate determination entitled to a presumption of regularity. Id. at 8. Defend ant-Intervenors indicate that they support the Government’s Motion to Dissolve on a different basis -- that the Government has abandoned the October Withdrawal. See Def.-Inters. ’ Resps. to Ct.’s Questions at 1–4. Plaintiffs oppose this motion, arguing that th e Government has not met its burden of proving that circumstances have sufficiently change d or that it would be inequitable to continue the injunction. First, Plaintiffs dispute the Gove rnment’s claim that the April Withdrawal cured the procedural deficiencies of the October Withdr awal. See Invenergy’s Resp. to Def.’s Mot. to Dissolve at 1; SEIA’s Resp. to Def.’s Mot. to Dissolve at 2; EDF-R’s Resp. to Def.’s Mot. to Dissolve at 1. Specifically, Invenergy conten ds that the April Withdrawal provided only conclusory statements to justify USTR’s determ ination. Invenergy’s Resp. to Def.’s Mot. to Dissolve at 17. Moreover, Plaintiffs point to US TR’s failure to address certain of their commentsCourt No. 19-00192 Page 23 in the April Withdrawal as published in the Federal Register to argue that the April Withdrawal, like the October Withdrawal, was ar bitrary and capricious. Id. at 19. Therefore, they contend, the April Withdrawal suffers from at least one of the same procedural deficiencies that warranted injunctive relief as the October Withdrawal. Id.; SE IA’s Resp. to Def.’s Mot. to Dissolve at 4; EDF-R’s Resp. to Def.’s Mot. to Dissolve at 7. Plaintiffs further assert that, in the Motion to Dissolve, the Government “chose to argue only th at the injunction should be dissolved, and the Withdrawal permitted to go into effect, because they had ‘cured’ the procedural error that the [c]ourt found in its PI Opinion by issuing no tice and permitting the submission of comments.” Pls.’ Resps. to Ct.’s Questions at 11. They conten d that the Government “e ntirely failed to address the other basis for the PI: the [c]ourt’s finding that Withdrawal of the Exclusion was likely arbitrary and capricious.” Id. Second, Plaintiffs claim that the Government failed to argue that continued enforcement of the PI would be inequitable. Inve nergy’s Resp. to Def.’s Mot. to Dissolve at 11; SEIA’s Resp. to Def.’s Mot. to Dissolve at 2 (a dopting the arguments set forth in Invenergy’s and EDF-R’s responses); EDF-R’s Resp. to Def.’s Mot. to Dissolve at 10. Later, in response to the c ourt’s questions, the Governmentprovided the court with the USTR Memoranda, which it relie s on as providing the reasoned explanation for the April Withdrawal and even characterizes as a part of USTR’s new determination. See Def.’s Resps. to Ct. Questions at 12 (“The [Gerrish Memorandum] provides the detailed findings of fact and analysis underlying the determination . . . The ‘c ontested determination’ here consists of the [Lighthizer Decision Memorandum] and the ‘fi ndings or report’ would include the April Withdrawal published in the Federal Register and the [Gerrish Memorandum] approved by the Trade Representative” (quoting USCIT R. 73.3( a)(1))); USTR Mems. The Government and Defendant-Intervenors rely on these memoranda at oral argument and in their post-argument briefsCourt No. 19-00192 Page 24 to support the Governments’ Motion to Dissolve the PI. See Oral Arg.; Def.’s Post-OA Filing at 8–9; Def.-Inters.’ Post-OA Filing at 8. Plain tiffs do not address these memoranda in their responses to the court’s questions. See Pls.’ Res p. to Ct.’s Questions. At oral argument and in their post-argument filings, however, Plaintiffs make clear that they, like the court, lacked access to these documents until the day before oral argument. 6 They argue that (1) the Government cannot use the USTR Memoranda to meet its burde n of showing that the April Withdrawal cured the arbitrary and capricious harm identified in the PI because the Government did not publish, provide to the parties, or reference those memoranda in its Motion to Dissolve; and (2) the court should not rely on the USTR Memoranda because Plaintiffs have had no opportunity to review and respond to those memoranda in the course of briefing on the Motion to Dissolve. See Oral Arg.; Invenergy’s Post-OA Filing at 5; SEIA’s Post-OA Filing at 10; EDF-R’s Post-OA Filing at
6–7. The court concludes that th e Government has not met its burden of showing changed circumstances and resulting inequity in order to ju stify dissolution of the PI. See, e.g., SKF USA, 316 F. Supp. 2d at 1334. Thus, the court denies the Government’s Motion to Dissolve. The court reaches this conclusion for two reasons: (1) the Government did not make a showing that the April Withdrawal constitutes sufficient changed circumstances regarding its previous arbitrary and capricious finding in issuing the PI; and (2) the October Withdrawal is not yet moot because the

6 At oral argument on May 13, 2020, the Government responded to Plaintiffs’ concerns regarding the alleged last-minute provision of the USTR Memoranda by explai ning that such documents are typically provided as part of the Administra tive Record, pursuant to USCIT Rule 73.3. Oral Arg. As this litigation has not proceeded to the merits of Plaintiffs’ claims and had not, prior to today’s opinion, included claims related to the April Withdrawal, the G overnment has not yet compiled the Administrative Record. See id.Court No. 19-00192 Page 25 USTR has not yet rescinded the October Withdrawal, and the Go vernment has not yet met the legal requirements for vacatur, ad dressed in further detail above. First, the court finds that the Government’s Motion to Dissolve does not address the court’s previous preliminary finding that the October Withdrawal was arbitrary and capricious. See Def.’s Mot. to Dissolve. Instead, the Government argues that it addressed the “sole basis” of the PI -- the lack of notice-and-comment proceedings. Def.’s Mot. to Dissolve at 7. See also April Status Report at 2 (discussing only the court’s preliminary finding regarding APA notice-and-comment requirements, but not the arbitrar y and capricious finding); Def.’s Mot. to Vacate and Dismiss at 11 (arguing that USTR’s publication of the January Notice initiating a notice-and-comment period “offers all of the relief that the [c]ourt preliminarily found to be lacking”). Further, only after the Plaintiffs noted this absence in the Government ’s motion does the Governme nt address this basis and then provide the court and the parties with the USTR Memoranda that the Government then argues provides the reasoned explanation for the Ap ril Withdrawal. See Def.’s Resps. to Ct.’s Questions at 5, 12–16. While the Government does address the arbitrary and capricious claim in response to the court’s questions, the Government’s late attempts to remedyits oversight in its original motion is insufficient to meet its burde n and to justify disturbing the court’s previous findings. 7 See, e.g., Tarpley v. Greene, 684 F.2d 1, 7 n.17 (D.C. Cir. 1982) (“Clearly, oral

7 The Government also contends at oral argument and in its post-oral argument brief that it had implicitly argued that the April Withdrawal cured the court’s arbitrary and capricious basis for issuing the PI. See Oral Arg.; Def.’s Post -OA Filing at 2–3. However, if that was the Government’s position, then it shoul d have explicitly stated so ra ther than asking the court to divine that reading of its April Status Report and Motion to Dissolve ex-post, especially where the Government bears the burden here of proving chan ged circumstances. See Cement Kiln Recycling Coal. v. EPA, 255 F.3d 855, 869 (D.C. Cir. 2001) (“A litigant does not properly raise an issue by addressing it in a ‘cursory fa shion’ with only ‘bare-bones ar guments.’” (citations omitted)); Rivera-Gomez v. de Castro, 843 F.2d 631, 635 (1st Cir. 1988) (“Judges are not expected to be mindreaders. Consequently, a litigant has an obligation ‘to spell out its arguments squarely andCourt No. 19-00192 Page 26 argument on appeal is not the proper time to advance new arguments or legal theories in opposition to a motion for summary judgment. . . . It is not the task of this court to consider all of the implications of a theory vaguely raised for the first time at oral argument on appeal and to search the record for supporting evidence.”). Without having addressed the arb itrary and capricious finding in the PI in its Motion to Dissolve, the Government cannot show th at circumstances have sufficiently changed in regard to this finding, nor can it show that inequity would result in the court’s continual enforcement of the PI. See Morita, 1989 WL 83256, at *1–2; Ad Hoc Shrimp Trade Action Comm., 562 F. Supp. 2d at 1388; SKF USA, 316 F. Supp. 3d at 1334; AIMCOR Ala. Silicon, 83 F. Supp. 2d at 1299. Second, the court recognizes that the Govern ment need not show changed circumstances and inequity from continuation of the PI if the Oc tober Withdrawal is vacated, and thus the grounds on which the PI rests become moot. As discus sed in detail above in the context of vacatur, however, the Government has not conclusively shown that US TR has rescinded the October Withdrawal, or that the October Withdrawal woul d not go into effect should the court dissolve the PI. Thus, the circumstances surrounding the Oc tober Withdrawal, taken apart from the April Withdrawal, do not justify dissolving the PI. The court does not and need not definitively decide whether the April Withdrawal in and of itself cures the deficiencies of the October Withdrawal or that the April Withdrawal is free from legal defect. Because USTR has not rescinded the October Withdrawal and Plaintiffs have only recently been able to supplement their complaints to include claims that USTR’s April Withdrawal also runs af oul of the APA, the court merely concludes that the Government has not met its burden of showing sufficiently ch anged circumstances to justify

distinctly,’ or else forever hold its peace.” (quoting Paterson–Leitch C o. v. Mass. Mun. Wholesale Elec. Co., 840 F.2d 985, 990 (1st Cir. 1988)).Court No. 19-00192 Page 27 dissolving the PI at this stage in the litigation. Furthermore, Plainti ffs, the Government, and Defendant-Intervenors have not had an adequate opportunity to address the implications of the addition of the April Withdrawal to the cour t’s jurisdiction or the newly provided USTR Memoranda in support of that decision. The c ourt’s decision today in no way prejudices the Government from making future motions to dissolve the PI, whether by showing changed circumstances and inequity or by mooting the Oc tober Withdrawal, on which the PI rests, through

vacatur. CONCLUSION For these reasons, the court: (1) denies the Government’s Motion to Dismiss for Failure to Join an Indispensable Party; (2) grants Plain tiffs’ Motions to Supplement their Complaints; (3) denies the Government’s Motion to Vacate the Withdrawal and Dismiss the Case as Moot; and (4) denies the Government’s Motion to Dissolve the PI. Pursuant to the accompanying Order, the court directs the parties to confer and submit a proposed further schedule in this action by June 17, 2020. The court acknowledges the G overnment and Defendant-Interve nors’ concern that domestic industries may face a threat of material injury du e to USTR’s decision to exclude bifacial solar products from safeguard duties. See, e.g., Def.’s Post-OA Filing at 7; Def.-Inters.’ Resps. to Ct.’s Questions at 20–21; Def.-Inters.’ Post-OA Filing at 12. The court also acknowledges the concerns of Plaintiffs (consumers, purchasers and importers of utility-grade bifacial solar panels), who oppose safeguard duties that they claim increase th e cost of bifacial solar panels. See, e.g., Invenergy’s Resp. to Def.’s Mot. to Dissolve at 25: SEIA’s Resp. to Def.’s Mot. to Dissolve at 21. At this stage of the proceedings, the court take s no position on the efficacy of the Exclusion or a decision to withdraw the Exclusion in providing pr otection to the domestic solar industry. Instead, the court merely continues to require the Government to follow its own laws when it acts.Court No. 19-00192 Page 28

SO ORDERED. /s/ Gary S. Katzmann Gary S. Katzmann, Judge Dated: 0D\   New York, New York