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: November 13, 2023

______________________ 

MATTHEW R. NICELY, Akin Gump Strauss Hauer & 

Feld LLP, Washington, DC, argued for plaintiffs-appellees 

Solar Energy Industries Association, NextEra Energy, Inc. 

Also represented by JULIA K. EPPARD, DEVIN S. SIKES,

JAMES EDWARD TYSSE, DANIEL MARTIN WITKOWSKI. 

 AMANDA SHAFER BERMAN, Crowell & Moring, LLP, 

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2 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US

Washington, DC, argued for plaintiff-appellee Invenergy 

Renewables LLC. Also represented by JOHN BOWERS 

BREW, 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, argued for all defendants-appellants. Defendants-appellants United States, United States Customs and 

Border Protection, Troy Miller 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. 

 JONATHAN STOEL, Hogan Lovells US LLP, Washington, 

DC, for amici curiae Chamber of Commerce of the United 

States of America, American Clean Power Association. 

Also represented by MICHAEL JACOBSON, MOLLY NEWELL; 

KATHERINE BOOTH WELLINGTON, Boston, MA. Amicus curiae Chamber of Commerce of the United States of America 

also represented by TARA S. MORRISSEY, United States 

Chamber Litigation Center, Washington, DC. 

 ______________________ 

Before LOURIE, TARANTO, and STARK, Circuit Judges.

STARK, Circuit Judge. 

In 2018, the President adopted certain safeguard 

measures to protect the domestic solar panel industry. In 

particular, the President issued Proclamation 9693, which 

imposed duties on imports of solar panels into the United 

States. See Proclamation 9693: To Facilitate Positive 

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SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 3

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 (Jan. 23, 2018). The duties of Proclamation 9693 began at 30% and were scheduled to 

decrease each year to 25%, 20%, and then, in their final, 

fourth year, 15%. See id. at 3548. Importers of a certain

type of solar panel – 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 – petitioned the 

United States Trade Representative (“USTR”) for an exclusion, asking that bifacial solar panels not be subjected to 

the duties. The USTR granted the exclusion, but then 

quickly reversed course, with the consequence that the duties of Proclamation 9693 remained scheduled to be imposed on bifacial panels. Following litigation in the Court 

of International Trade (“trade court”), and additional actions by the USTR, bifacial solar panels were again excluded from the duties.

In October 2020, the President issued Proclamation 

10101, “modifying” Proclamation 9693 to withdraw the exclusion of bifacial solar panels from the scheduled duties, 

and also to increase the fourth-year duty rate from 15% to 

18%. See 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. 16, 2020). In response to Proclamation 10101, 

importers of bifacial solar panels brought suit against the 

United States in the trade court on the grounds that the 

proclamation exceeded the power of the President. Their 

principal contention was that the statute authorizing the 

President to “modify” Proclamation 9693 only allowed him 

to make previously adopted safeguard measures more 

trade-liberalizing, but eliminating the exclusion of bifacial 

panels and raising the fourth-year duty were trade-restrictive. The suing parties further argued that even if the 

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4 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US

President had the authority to “modify” safeguards in a 

trade-restrictive direction, he failed to follow appropriate 

procedures in doing so.

The trade court agreed with the importers that the 

statutory authority to “modify” a safeguard is limited to 

trade-liberalizing changes. While the trade court rejected 

the importers’ procedural challenges, it nonetheless set 

aside Proclamation 10101 for exceeding the President’s authority. The government now appeals from the trade 

court’s judgment in favor of the importers.

We conclude that the President’s interpretation of the 

applicable statute, which allows him to “modify” an existing safeguard, is not a clear misconstruction. That is, the 

President’s view that a “modification” may include a 

change in a trade-restricting direction, and is not limited 

to trade-liberalizing changes, is not unreasonable. We further determine that, in adopting Proclamation 10101, the 

President did not commit any significant procedural violation of the Trade Act. Accordingly, we reverse the judgment of the trade court. 

I 

A 

Section 201 of the Trade Act of 1974, codified at 19

U.S.C. § 2251, provides the President of the United States 

with the power to impose “safeguards” (also referred to as 

“safeguard measures”) that protect domestic industries 

from serious injury caused by imports. Statutory Section 

2251 broadly directs the President to “take all appropriate 

and feasible action within his power which the President 

determines will facilitate efforts by the domestic industry 

to make a positive adjustment to import competition and 

provide greater economic and social benefits than costs.” 

19 U.S.C. § 2251(a).

Imposition of a new safeguard is governed by 19 U.S.C. 

§§ 2252 and 2253, which set out a process that typically 

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SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 5

includes: (i) a petition from the domestic industry filed with 

the International Trade Commission (“Commission”), setting out the purposes for which the safeguard is sought, 

“which may include facilitating the orderly transfer of resources to more productive pursuits, enhancing competitiveness, or other means of adjustment to new conditions 

of competition”; (ii) an investigation and determination by 

the Commission as to “whether an article is being imported 

into the United States in such increased quantities as to be 

a substantial cause of serious injury, or the threat thereof, 

to the domestic industry producing an article like or directly competitive with the imported article”; (iii) the submission of a report by the Commission to the President, 

which may include a recommendation of presidential action to “address the serious injury, or threat thereof, to the 

domestic industry,” such as the imposition of or increase in 

duty on the imported article or a modification or imposition 

of a quantitative restriction on the importation of the article into the United States; and (iv) a decision by the President “to take all appropriate and feasible action” that will 

provide “greater economic and social benefits than costs” 

and will assist domestic industry. Generally, safeguards 

adopted pursuant to these procedures may not be in effect 

for longer than four years without an additional petition 

from the domestic industry. See id. §§ 2253(e)(1)(A)-(B), 

2254(c). Certain types of safeguards, including imposition 

of duties lasting more than one year, must be “phased down 

at regular intervals during the period in which the action 

is in effect.” Id. § 2253(e)(5).

Once a particular safeguard is in place, Section 2254 

governs efforts to change the existing measure. Section 

2254(a)(1) requires, among other things, that the Commission “monitor developments with respect to the domestic 

industry, including the progress and specific efforts made 

by workers and firms in the domestic industry to make a 

positive adjustment to import competition.” Id.

§ 2254(a)(1). If a safeguard is imposed for longer than 

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6 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US

three years, the Commission must, no later than the midpoint of the period for which it is adopted, “submit a report 

[“Commission Report”] on the results of the monitoring . . . 

to the President and to the Congress” Id. § 2254(a)(2). After receiving the Commission Report, the President is empowered to take certain actions with respect to the

safeguard, with different statutory provisions applying depending on whether the domestic industry has or has not 

made a positive adjustment to import competition.

Specifically, 19 U.S.C. § 2254(b), entitled “Reduction, 

modification, and termination of action,” provides that 

“[a]ction taken under section 2253 of this title,” i.e., a safeguard, “may be reduced, modified, or terminated by the 

President,” after receiving the Commission Report, 

if the President . . .

(A) . . . determines, on the basis that either – 

(i) the domestic industry has not made 

adequate efforts to make a positive adjustment to import competition, or

(ii) the effectiveness of the action taken 

under section 2253 of this title has been 

impaired by changed economic circumstances,

that changed circumstances warrant such reduction, or termination; or

(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. 

Id. § 2254(b)(1) (emphasis added). While subparagraph 

(b)(1)(B) permits the President to “reduc[e], modif[y], or 

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SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 7

terminat[e]” a safeguard when the domestic industry has 

made a positive adjustment to import competition, subparagraph A more narrowly describes the President’s power as 

extending only to a “reduction, or termination” (and not 

also a “modification”) of an existing safeguard where domestic industry has not made such an adjustment.

B 

On January 23, 2018, President Trump issued Proclamation 9693, which imposed duties on imports of certain 

quantities of Crystalline Silicon Photovoltaic (CSPV) solar 

panels for a period of four years, beginning at 30% ad valorem in the safeguard’s first year and phasing down to 25%, 

20%, and 15% in the ensuing years. Proclamation 9693, 83

Fed. Reg. at 3548-49. Proclamation 9693 further delegated 

to the USTR authority to grant “exclusion of a particular 

product from the safeguard measure.” Id. at 3543. Acting 

under this authority, in June 2019 the USTR granted an 

exclusion for solar panels consisting of bifacial solar cells. 

See Exclusion of Particular Products From the Solar Products Safeguard Measure, 84 Fed. Reg. 27684, 27685 (June 

13, 2019). This exclusion had the effect of not imposing the 

new tariffs on bifacial solar panels.

However, just months later, in October 2019, the USTR 

withdrew the exclusion, re-imposing the duties on these 

same bifacial products. See Withdrawal of Bifacial Solar 

Panels Exclusion to the Solar Products Safeguard Measure, 

84 Fed. Reg. 54244 (Oct. 9, 2019). Litigation followed. 

Cases (which are not directly at issue here) brought by consumers, purchasers, and importers of bifacial solar panels 

resulted in the October 2019 withdrawal of the exclusion 

never becoming effective. See Invenergy Renewables LLC 

v. United States, 422 F. Supp. 3d 1255 (Ct. Int’l Trade 

2019). That meant that bifacial solar panels remained exempted from imposition of the new duties. Thereafter, in 

April 2020, the USTR again withdrew the exclusion, seeking thereby to impose the duties on bifacial products. See 

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8 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US

Determination on the Exclusion of Bifacial Solar Panels 

from the Safeguard Measure on Solar Product, 85 Fed. Reg. 

21497 (Apr. 17, 2020). After more litigation, the trade 

court enjoined the April 2020 withdrawal. See Invenergy 

Renewables LLC v. United States, 552 F. Supp. 3d 1382 

(Ct. Int’l Trade 2021); Invenergy Renewables LLC v. United 

States, 476 F. Supp. 3d 1323 (Ct. Int’l Trade 2020).

In the meantime, the Commission completed its statutorily required midpoint review of the safeguards imposed 

by Proclamation 9693 and, in February 2020, provided the 

Commission Report to the President and Congress. See 

Crystalline Silicon Photovoltaic Cells, Whether or Not Partially or Fully Assembled Into Other Products: Monitoring 

Developments in the Domestic Industry, Inv. No. TA-201-

075, USITC Pub. 5021, at 2 (Feb. 2020). In March 2020, 

pursuant to 19 U.S.C. § 2254(a)(4) and in response to the 

USTR’s request, the Commission additionally published a 

report containing its advice “regarding the probable economic effect on the domestic crystalline silicon photovoltaic 

(CSPV) cell and module manufacturing industry of modifying the safeguard measure on CSPV products.” Crystalline 

Silicon Photovoltaic Cells, Whether or Not Partially or 

Fully Assembled Into Other Products: Advice on the Probable Economic Effect of Certain Modifications to the Safeguard Measure, Inv. No. TA-201-075, USITC Pub. 5032, at 

ES-1 (Mar. 2020). That report contained the Commission’s 

determination that the “exclusion for imports of bifacial 

modules . . . is likely to have significant effects on prices 

and trade in both modules and cells,” having the effect of 

limiting the positive impact of the safeguard adopted in 

Proclamation 9693. Id. at ES-4. In the wake of these two 

reports, the President, through the USTR, received a petition, consisting of three letters,1 from representatives of a 

1 The trade court held these “letters submitted to the 

Trade Representative are, taken collectively, sufficient to 

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SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 9

majority of the bifacial solar panel domestic industry requesting, among other things, that the President (1) withdraw the bifacial exclusion and (2) slow down the rate of 

reduction of the safeguard duty for the remainder of the 

scheduled term. 

On October 16, 2020, the President issued Proclamation 10101. See Proclamation 10101, 85 Fed. Reg. at 65640. 

As pertinent here, Proclamation 10101 modified safeguards that had been implemented in Proclamation 9693, 

including by withdrawing the exclusion of bifacial solar 

panels, thereby again re-imposing the duties on these panels. Proclamation 10101 further provided that the fourthyear duty rate on CSPV modules, including bifacial solar 

panels, would be increased from 15% to 18%. See 85 Fed. 

Reg. at 65540-42. In particular, Proclamation 10101 provided that:

[T]he domestic industry has begun to make positive 

adjustment to import competition, shown by the increases in domestic module production capacity, 

production, and market share. . . . 

[T]he exclusion of bifacial panels from application 

of the safeguard tariff has impaired and is likely to 

continue to impair the effectiveness of the action I 

proclaimed in Proclamation 9693 in light of the increased imports of competing products such exclusion entails, and that it is necessary to revoke that 

exclusion and to apply the safeguard tariff to bifacial panels; . . . 

[T]he exclusion of bifacial panels from application 

of the safeguard tariffs has impaired the effectiveness of the 4-year action I proclaimed in Proclamation 9693, and that to achieve the full remedial 

constitute a petition to the President.” J.A. 13. Appellees 

do not challenge this finding on appeal. 

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10 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US

effect envisaged for that action, it is necessary to 

adjust the duty rate of the safeguard tariff for the 

fourth year of the safeguard measure to 18 percent. 

Proclamation 10101, 85 Fed. Reg. at 65640. The appeal 

now before us requires us to determine whether the President had authority to make these modifications to Proclamation 9693 by adoption of Proclamation 10101.2

C 

On December 29, 2020, Plaintiffs-Appellees – Solar Energy Industries Associates (“SEIA”) as well as Nextera Energy Inc., Invenergy Renewables LLC, and EDF 

Renewables, Inc. – filed suit at the trade court challenging 

Proclamation 10101’s modifications to the safeguards imposed by Proclamation 9693. See Solar Energy Indus. Ass’n 

v. United States, 553 F. Supp. 3d 1322 (Ct. Int’l Trade 2021) 

(“SEIA Decision”). Defendants-Appellants – the United 

States, the United States Customs and Border Protection 

(“CBP”), and Christopher Magnus in his capacity as Commissioner of CBP (collectively, the “government”) – moved 

to dismiss, and Appellees cross-moved for summary judgment. The trade court granted summary judgment to Appellees and set aside the modifications contained in 

Proclamation 10101.

2 In February 2022, President Biden, acting pursuant to his authority under Section 2253, extended the safeguard measure and excluded bifacial panels from the 

extended measure. See Proclamation 10339, To Continue 

Facilitating Positive Adjustment to Competition From Imports of Certain Crystalline Silicon Photovoltaic Cells 

(Whether or Not Partially or Fully Assembled Into Other 

Products), 87 Fed. Reg. 7357 (Feb. 9, 2022). Thus, as the 

parties agree, this appeal only affects bifacial panels that 

were imported into the U.S. after October 25, 2020 and before February 7, 2022. 

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In reaching its decision, the trade court concluded that 

“while Proclamation 10101 complied with the procedural 

requirements of the safeguard statute, it nevertheless 

clearly misconstrued the reach of Section [2254](b)(1)(B) of 

the Trade Act, and thus constituted an action outside the 

President’s delegated authority.”3 J.A. 34. More specifically, the trade court reasoned that Section 2254(b)(1)(B) 

“permits only trade-liberalizing modifications to existing 

safeguard measures,” yet “Proclamation 10101’s withdrawal of the exclusion of bifacial solar panels and increase 

of the safeguard duties on CSPV modules” were trade-restrictive. J.A. 6. Therefore, the trade court held that the 

modifications of Proclamation 10101 were based on a clear 

misconstruction of the statute. See J.A. 6, 28. The trade 

court was persuaded that, as Appellees argued, Section 

2254(b)(1)(B) “was intended to provide an escape hatch” 

from previously imposed safeguards “where domestic industry has adequately adapted to import competition.” 

J.A. 32. It was not, in the court’s view, Congress’s intent 

to allow for a safeguard to be “modified” so as to make it

more restrictive of free trade when domestic industry had 

already adjusted to such competition. See id. Hence, the

3 The trade court found the President acted outside 

his delegated authority solely because it found the President’s interpretation of Section 2254(b)(1)(B) was a clear 

misconstruction. See J.A. 33. There was no separate analysis of the “acting outside of authority” issue. Nor do the 

parties identify any other basis, besides the construction of 

Section 2254(b)(1)(B) and its associated procedural requirements, on which Proclamation 10101 could be deemed 

an action taken outside of the President’s delegated authority. Thus, our conclusion that the President did not 

clearly misconstrue his statutory authority leads to the 

conclusion that the President also did not act outside of his 

delegated authority.

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12 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US

trade court set aside Proclamation 10101 and enjoined the 

government from enforcing it. See J.A. 6.

The government timely appealed. Before us, the government challenges the trade court’s holding that the President clearly misconstrued Section 2254(b)(1)(B) when he

interpreted it as permitting trade-restrictive modifications 

to safeguard measures. The government also disputes the 

trade court’s conclusion that Proclamation 10101’s modifications were actually trade-restrictive. Appellees ask us to 

affirm the trade court’s determination that the President’s 

interpretation of “modify” in Section 2254(b)(1)(B) as permitting trade-restrictive changes is a clear misconstruction 

of the statute.4 Appellees also propose alternative grounds 

for affirmance, namely that the President failed to comply 

with the procedural requirements of the safeguard statute.

We conclude that the President did not clearly misconstrue Section 2254(b)(1)(B) when he interpreted it as permitting trade-restrictive modifications. We further 

conclude that, in issuing Proclamation 10101, the President did not commit any significant procedural violation of 

the Trade Act. Accordingly, we reverse and remand for the 

trade court to enter judgment for the government.

II

The trade court had jurisdiction pursuant to 28 U.S.C. 

§ 1581(i). We have jurisdiction under 28 U.S.C. 

§ 1295(a)(5).

“We review the Court of International Trade’s grant of 

summary judgment de novo, including by deciding de novo 

4 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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SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 13

the proper interpretation of governing statutes and regulations.” Shinyei Corp. of Am. v. United States, 524 F.3d 

1274, 1282 (Fed. Cir. 2008). In the absence of any genuine 

dispute of facts, we apply de novo review to the question of 

whether statutory prerequisites for presidential action under the safeguard statute were satisfied. See Corus Grp. 

PLC v. Int’l Trade Comm’n, 352 F.3d 1351, 1359-61 (Fed. 

Cir. 2003). “Although we apply a de novo standard of review, we give great weight to the informed opinion of the 

Court of International Trade.” Aspects Furniture Int’l, Inc. 

v. United States, 42 F.4th 1366, 1369 (Fed. Cir. 2022). 

Summary judgment is appropriate “if the movant shows 

that there is no genuine dispute as to any material fact and 

the movant is entitled to judgment as a matter of law.” 

U.S. CIT R. 56(a). 

Notwithstanding the de novo standard we generally 

apply to review of grants of summary judgment, “[i]n international trade controversies of th[e] highly discretionary 

kind” we confront today, which “involv[e] the President and 

foreign affairs,” this court has a “very limited role . . . .” 

Maple Leaf Fish Co. v. United States, 762 F.2d 86, 89 (Fed. 

Cir. 1985). We may only set aside presidential action taken 

pursuant to statutory Sections 2251-53 of the Trade Act if

it involves “a clear misconstruction of the governing statute, a significant procedural violation, or action outside 

delegated authority.” Id.; see also USP Holdings, Inc. v. 

United States, 36 F.4th 1359, 1366 n.3 (Fed. Cir. 2022). 

“[T]he President’s findings of fact and the motivations for 

his action are not subject to review.” Maple Leaf, 762 F.2d 

at 89 (citation omitted); see also Silfab Solar, Inc. v. United 

States, 892 F.3d 1340, 1349 (Fed. Cir. 2018). 

III

The trade court granted summary judgment to Appellees based on its determination that the President clearly 

misconstrued Section 2254(b)(1)(B) by interpreting it as 

permitting trade-restricting modifications. On appeal, the 

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14 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US

government challenges this conclusion on two grounds. 

First, the government contends that “[n]othing in the safeguard statute limits the President’s authority under section [2254(b)(1)(B)] only to making modifications that 

liberalize trade.” Opening Br. at 26. Second, the government argues that even if Section 2254(b)(1)(B) does not extend to trade-restricting modifications, the modifications 

that Proclamation 10101 makes to Proclamation 9693 do 

not “increase” restrictions and, hence, are permitted by the 

statute. We agree with the government’s first contention 

and find it unnecessary to address the second.

A 

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). Because presidential action to impose a safeguard measure, as well as 

the decision to modify such a measure, involves presidential action in the context of foreign affairs, our review is 

“very limited.” Maple Leaf, 762 F.2d at 89. 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 whether the President’s interpretation, that he is permitted to make traderestricting modifications and not just trade-liberalizing 

ones, is a clear misconstruction of the statute. Applying

this standard of review, we hold the President did not 

clearly misconstrue Section 2254(b)(1)(B). 

Our review “begins with the language of the statute” 

itself. Hughes Aircraft Co. v. Jacobson, 525 U.S. 432, 438 

(1999) (internal quotation marks omitted); see also PDS 

Consultants, Inc. v. United States, 907 F.3d 1345, 1357 

(Fed. Cir. 2018). Section 2254(b)(1)(B) provides that safeguards previously adopted under Section 2253 “may be reduced, modified, or terminated” by the President. The 

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statute does not expressly indicate whether “modify” includes trade-restrictive changes or is limited to trade-liberalizing alterations. We view this statutory silence as 

favoring the government’s broader view, as the statute 

simply does not contain the narrowing limitation the trade 

court read into it. See generally Jama v. Immigr. & Customs Enf’t, 543 U.S. 335, 341 (2005) (“We do not lightly assume that Congress has omitted from its adopted text 

requirements that it nonetheless intends to apply . . . .”).5

Ordinarily, Congress uses words consistent with their 

well-understood meaning. See Perrin v. United States, 444 

U.S. 37, 42 (1979) (“A fundamental canon of statutory construction is that, unless otherwise defined, words will be 

interpreted as taking their ordinary, contemporary, common meaning.”). Here, both sides find support for their interpretations of “modify” in dictionary definitions. 

Appellees direct us to a definition of “modify” as “to make 

‘less extreme.’” SEIA Br. at 17 (quoting J.A. 30). The government, by contrast, points us to a dictionary definition of 

“modify” as “making of a limited change in something.” 

Opening Br. at 24 (citing J.A. 30). Other courts, including 

the Supreme Court, have applied the government’s non5 By contrast, an earlier, unenacted version of the 

legislation that ultimately became Section 2254(b)(1)(B)

would have expressly restricted the President’s authority, 

upon receiving the Commission Report, as being to “reduce, 

modify (but not increase) or terminate any action.” H.R. 

Conf. Rep. 100-576, at 687, reprinted in 1988 USCCAN 

1547, 1720 (emphasis added). The parenthetical prohibiting trade-restrictive modifications was deleted during the 

legislative process. Generally, “[w]here Congress includes 

limiting language in an earlier version of a bill but deletes 

it prior to enactment, it may be presumed that the limitation was not intended.” Russello v. United States, 464 U.S. 

16, 23-24 (1983).

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16 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US

directionally restricted definition of “modify” in other contexts. See MCI Telecomm. Corp. v. AT&T Co., 512 U.S. 

218, 225 (1994) (collecting definitions and noting that 

“modify” typically connotes moderate change without indicating which direction such change must take). Appellees 

concede that the government’s definition is a correct one 

but then attempt to persuade us that their preferred definition is better supported by the broader structure and purpose of the safeguard statute. See SEIA Br. at 17-18 

(“‘[M]odify’ can also mean ‘to change moderately or in minor fashion.’”). With our review restricted to whether the 

President’s interpretation of “modify” is a clear misconstruction, we view the government’s dictionary support, 

other courts’ precedents, and Appellees’ concession as 

strong indicators that Appellees have failed to show the 

President’s interpretation of “modification” is a clear misconstruction.

Appellees emphasize that the meaning of “modify” in 

Section 2254(b)(1)(B) can only be properly understood in 

the context of “[t]he broader structure and stated purpose 

of the statute.” SEIA Br. at 18-19, 26. While we agree that 

structure and purpose should be taken into account, here 

these considerations only solidify our conclusion that Section 2254(b)(1)(B) was not clearly misconstrued to permit 

trade-restricting modifications to existing safeguards.

First, Section 2251 provides that the safeguard statute 

has a broad remedial purpose, directing the President to 

“take all appropriate and feasible action within his power” 

to meet the statute’s objectives and provide relief to domestic industry. 19 U.S.C. § 2251 (emphasis added). This expansive directive supports the view that the President is 

empowered to make modifications as necessary to provide 

continued relief to domestic industry, regardless of 

whether that modification is in the direction of trade-restriction or trade-liberalization. Certainly, there is no suggestion in Section 2251 that if the President determines a 

slightly more restrictive safeguard is necessary, he is, 

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nevertheless, permitted only to adopt a trade-liberalizing 

modification.

Second, the Trade Act has its own general definition of 

“modification.” It provides: “[t]he term ‘modification’, as 

applied to any duty or other import restriction, includes the 

elimination of any duty or other import restriction.” Id.

§ 2481(6). Plainly, this is an open-ended definition and 

does not exclude anything, including further restrictions. 

Nor does it even suggest that assessment of whether a 

change qualifies as a “modification” is based to any extent 

on the direction of the change (i.e., trade-liberalizing or -

restricting).

Other provisions of the Trade Act are similarly supportive of the government’s interpretation. Section 

2254(b)(3), for example, provides that the President may 

“modify” a safeguard to bring it into conformity with a decision of the World Trade Organization (“WTO”), which

could require a trade-liberalizing or trade-restricting modification, depending on the relative relationship between 

an existing U.S. safeguard and a WTO determination. See 

id. § 2254(b)(3). Similarly, Sections 2252(e)(2)(C) and 

2253(a)(3)(C) authorize the Commission to recommend, 

and the President to impose, “modification . . . of any quantitative restriction on importation,” modifications which 

Appellees do not dispute may include changes in a more 

trade-restrictive direction.

Because the Trade Act clearly uses “modify” and “modification” in ways that permit trade-restricting changes, 

Appellees next insist that “Congress clearly did not give the 

word ‘modification’ the same connotation throughout the 

Trade Act.” SEIA Br. at 32. We are not persuaded. “[A]

term appearing in several places in a statutory text is generally read the same way each time it appears.” Ratzlaf v. 

United States, 510 U.S. 135, 143 (1994). Appellees insist 

that Section 2254(b)(3)’s inclusion of the phrase “notwithstanding paragraph (1)” signifies that Section 2254(b)(1)’s 

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18 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US

modification power is different from that power as delineated in Section 2254(b)(3). But we agree with the government that “[n]otwithstanding paragraph (1)” means that 

modifications under Section 2254(b)(3) may be accomplished without having to fulfill the procedural requirements of Section 2254(b)(1) (e.g., receipt of the Commission 

Report or a domestic industry petition). See Reply Br. at 

10.

Appellees, echoing the trade court, further contend 

that permitting the President to make trade-restrictive 

modifications pursuant to Section 2254(b)(3) creates a loophole through which the President can bypass the procedural requirements Section 2253 establishes for adopting a 

safeguard measure in the first place. See SEIA Br. at 25; 

J.A. 32. We disagree. Even under the government’s reading of Section 2254(b)(1)(B), the President’s modification 

power is far from unbounded. For instance, Section 

2253(e)(5) requires duties to be “phased down at regular 

intervals,” ensuring that any duty rate modification cannot 

exceed the highest rate imposed by the original safeguard 

measure. Thus, here, because the maximum tariff rate imposed by Proclamation 9693 was 30% – a measure adopted 

only after the President followed all of the procedures set 

out in Section 2253 – the President could not, through his 

modification power under Section 2254, impose a tariff 

greater than 30%. Additionally, the President may not 

modify a safeguard pursuant to Section 2254 any time he 

wishes; instead, he must wait until after receiving the 

Commission Report as well as a petition from the majority 

of domestic industry (which may not ever be forthcoming).6 

6 As we explain below, however, the President’s 

power is not limited to making the modifications that are 

advocated by the Commission Report and requested by the 

petition. Still, the receipt of the Commission Report and of 

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SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 19

Furthermore, because the power to “modify” a safeguard is 

included only in subparagraph (b)(1)(B), and not also in 

(b)(1)(A), the President may only make a modification after 

determining that domestic industry is making a positive 

adjustment to import competition. See infra at pp. 21, 23-

26. While Congress is free to create a “loophole” if it 

wishes, here we think it has, instead, cabined the President’s modification authority – just not with the further 

constraint of limiting modifications to only trade-liberalizing changes.

As yet another argument, Appellees contend that “[t]he 

total lack of historical usage” of Section 2254(b)(1)(B) “to 

restrict trade is further evidence weighing in favor of the 

trade court’s interpretation.” SEIA Br. at 26. Even assuming historical practice, or the lack of it, could transform an 

otherwise-reasonable reading of a statute into a clear misconstruction, the government has directed us to one instance in which it appears President Clinton acted 

pursuant to Section 2254(b)(1) to take trade-restrictive action. See Opening Br. at 39-40 & n.8 (citing Proclamation 

7314: To Modify the Quantitative Limitations Applicable to 

Imports of Wheat Gluten, 65 Fed. Reg. 34899 (May 26, 

2000)); Reply Br. at 17-18. Hence, there does appear to be 

historical support for President Trump’s construction of 

presidential authority under Section 2254(b)(1)(B).

Finally, Appellees point to the distinction between subsection (b)(1)(A), which applies where “domestic industry 

has not made adequate efforts to” adjust to import competition, and subsection (b)(1)(B), which applies where “domestic industry has made a positive adjustment to import 

competition.” SEIA Br. at 20-21 (emphasis added). In the 

former circumstance, where domestic industry has not responded positively, Section 2254(b)(1)(A) provides the 

a domestic industry petition are the prerequisites to a Presidential modification of a safeguard. 

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20 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US

President authority only to “reduce” or “terminate” the 

safeguard while in the latter scenario, where domestic industry “has made a positive adjustment, Section 

2254(b)(1)(B) more broadly provides the President authority to “reduce, modify, or terminate” a safeguard. Appellees 

insist 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 traderestricting power where domestic industry has not. See, 

e.g., SEIA Br. at 18 (“It would make no sense for Congress 

to authorize further trade restrictions after the domestic 

industry already ‘has made’ a positive adjustment . . . .”). 

We side with the government on this point, agreeing with 

it that “[t]his distinction 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.” Opening Br. at 34. In sum, 

we find this argument of Appellees no more persuasive 

than their many other contentions.

For all of these reasons, we conclude it was not a clear 

misconstruction for the President to interpret his authority 

under Section 2254(b)(1)(B) as permitting him to adopt 

trade-restrictive modifications, as well as trade-liberalizing modifications. 

B 

The government additionally argues that “even if ‘modification’ in Section 2254(b)(1)(B) were construed as prohibiting the President from implementing an ‘increase’ to the 

safeguard measure, Proclamation 10101 should still be 

sustained as lawful because the modifications at issue are 

neutral in relation to the original safeguard measure.” 

Opening Br. at 20. In the government’s view, all that Proclamation 10101 accomplished was “to restore application of 

the safeguard measure to bifacial panels and to slow the 

rate at which the measured phased down in its fourth 

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SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 21

year,” neither of which were trade-restricting “increases” 

in measures imposed on imports. Id. at 2. Because we find 

it was not a clear misconstruction to interpret Section 

2254(b)(1)(B) as permitting trade-restrictive modifications 

to safeguard measures, we need not, and do not, reach this 

issue.

IV

Our siding with the government on whether the President’s statutory interpretation was a clear misconstruction 

is not enough to resolve this appeal. Appellees offer, as alternative grounds for affirmance, the arguments they presented to the trade court for a finding that, in adopting 

Proclamation 10101, the President failed to comply with 

the procedural requirements of the safeguard statute. In 

particular, Appellees renew their contentions that: (1) the 

petition leading to Proclamation 10101 was inadequate to 

meet the “on such basis” requirement of Section 

2254(b)(1)(B); (2) the President’s finding that the domestic 

industry “has begun to make” a positive adjustment to import competition does not meet the statutory requirement 

that domestic industry “has made” such adjustment; and 

(3) the President failed to meet his obligation to weigh the 

economic and social costs and benefits of his alterations to 

the safeguard tariffs imposed by Proclamation 9693 before 

issuing Proclamation 10101. SEIA Br. at 4, 20 n.1 (adopting arguments from EDF Brief); EDF Br. at 15-16. The 

trade court rejected each of these positions and we do so as 

well.

A 

Appellees argue that the President lacked authority 

under Section 2254(b)(1)(B) to modify the safeguards imposed by Proclamation 10101 because the petition submitted by domestic industry did not base the modification 

request on domestic industry having made a positive adjustment to import competition. The portion of Section 

2254(b)(1)(B) on which this argument is based provides:

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22 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US

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] report . . .) . . . 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. 

19 U.S.C. § 2254(b) (emphasis added). Appellees contend 

that the phrase “on such basis” refers to the petition, such 

that the petition itself must be based on domestic industry’s view that it has made a positive adjustment to import 

competition. The trade court, agreeing with the government, held instead that “on such basis” refers to the President’s determination, which may be based on the 

Commission Report’s finding that domestic industry has 

made a positive adjustment, regardless of whether the petition also contends the same. In other words, the parties 

agree that “such” in “on such basis” refers back to something indicated or implied earlier in the provision, but the 

government contends that the thing being referred to is the 

Commission mid-point Report while Appellees insist the 

thing is, by contrast, the domestic industry petition.

We find both views to be reasonable. Section 2254(b) 

expressly refers to both the Commission Report and the domestic industry petition before it sets out the requirement 

that the President make a determination, that domestic industry has made a positive adjustment, “on such basis.” 

That “basis” could be the Commission Report or could just 

as easily be the industry petition. See J.A. at 20 (trade 

court explaining that “a determination made on the basis 

of the [Commission] report would reflect the views of an 

independent body based on information and argument provided by all market participants, and would therefore align 

with . . . Section [2254](b)(1)(B)’s overall aim of permitting 

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SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 23

the adjustment of safeguard measures when the industry 

as a whole begins to adapt to competition”) (internal quotation marks omitted). It follows, then, that the government’s interpretation is not a clear misconstruction and, 

hence, we must affirm the trade court’s conclusion on this 

point. See Maple Leaf, 762 F.2d at 89. We agree with the 

trade court that the President did not violate the “on such 

basis” procedural requirement for adopting a modification.

The trade court also concluded that even if Appellees’ 

interpretation on this point were a clear misconstruction, 

“the failure of petitioners to comply with [the petition] requirement would not render Proclamation 10101 unlawful.” J.A. 21. Given our other conclusions, it is unnecessary 

for us to review this determination of the trade court. 

B 

Appellees next argue that the President failed to comply with Section 2254(b)(1)(B)’s requirement to determine 

that “the domestic industry has made a positive adjustment to import competition” (emphasis added). As Appellees correctly observe, in Proclamation 10101 the President 

found that “the domestic industry has begun to make positive adjustment to import competition.” Proclamation 

10101, 85 Fed. Reg. at 65640 (emphasis added). According 

to Appellees, this is insufficient, as the President merely 

made a finding that positive adjustment had started but 

did not make the purportedly required finding that such 

positive adjustment be completed. Appellees insist that 

“‘[h]as made’ and ‘has begun to make’ do not mean the same 

thing.” SEIA Br. 58.

Once again, we are not required to decide if Appellees’ 

interpretation is reasonable or even the better view. Instead, we are asked only to determine if the government’s 

view, that the statutory language “has made a positive adjustment” is broad enough to include circumstances in 

which domestic industry “has begun to make a positive adjustment,” is a clear misconstruction. Like the trade court, 

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24 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US

we hold that “the distinction between ‘has made’ and ‘has 

begun to make’ is too narrow to rise to the level of a clear 

misconstruction.” J.A. 22.

It is reasonable to interpret “has made a positive adjustment” as relating to a process, which might be ongoing, 

rather than being limited to periods following a completed, 

successful adjustment. As the government notes, the statutory phrase is written in the present perfect tense, which 

can be used to refer to an action completed entirely in the 

past and also to action still in process. See Reply Br. at 36 

(citing Kenneth G. Wilson, The Columbia Guide to Standard American English 342 (1993)). This plain meaning understanding of “has made” is supported by other parts of 

the Trade Act, which recognize that “positive adjustment” 

to import competition will occur over time and not on a single date. See, e.g., 19 U.S.C. § 2254(c)(1) (“[T]here is evidence that the industry is making a positive adjustment to 

import competition.”) (emphasis added); id. § 2254(d)(1) 

(“[T]he Commission shall evaluate the effectiveness of the 

actions in facilitating positive adjustment by the domestic 

industry to import competition.”). Indeed, two of the conditions that the statute 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, 

again reflecting that positive adjustment by domestic industry can involve an ongoing process.

Thus, we agree with the trade court that the President 

did not violate the procedural requirement that he determine that domestic industry “has made” a positive adjustment to competition from imports.

C 

Finally, we consider whether the President is required 

to re-weigh costs and benefits when modifying a safeguard 

pursuant to Section 2254(b)(1). The trade court concluded 

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SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 25

that the President must do so and also that, in connection 

with Proclamation 10101, he did so. J.A. 27-28. We conclude, by contrast, that the President is not required to reweigh costs and benefits when modifying a safeguard 

measure. Thus, we need not decide whether the President 

complied with this non-requirement in issuing Proclamation 10101. 

Two statutory provisions mention the President’s obligation to weigh costs and benefits. The first is Section 

2251(a), which provides: 

If the United States International Trade Commission (hereinafter referred to in this part as the 

“Commission”) determines under [S]ection 2252(b) 

of this title that an article is being imported into 

the United States in such increased quantities as 

to be a substantial cause of serious injury, or the 

threat thereof, to the domestic industry producing 

an article like or directly competitive with the imported article, the President, in accordance with 

this part, shall take all appropriate and feasible action within his power which the President determines will facilitate efforts by the domestic industry 

to make a positive adjustment to import competition 

and provide greater economic and social benefits 

than costs.

19 U.S.C. § 2251(a) (emphasis added). Section 2253(a) restates the President’s authority to take safeguard action 

under Section 2251(a), reciting the requirement that the 

President must consider both long- and short-term benefits 

and costs. See 19 U.S.C. § 2253(a)(2)(E) (“In determining 

what action to take . . ., the President shall take into account . . . the short- and long-term economic and social 

costs of the actions authorized . . . relative to their shortand long-term economic and social benefits.”).

These provisions expressly apply to the initial adoption 

of a safeguard measure and make no reference to 

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26 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US

modification of such measures. The President’s power to 

reduce, modify, or terminate an existing safeguard is governed by Section 2254(b)(1), which makes no mention 

whatsoever of cost-benefit determinations. Nor does any 

portion of the safeguard statute tie the requirement of a 

cost-benefit analysis, set out in Sections 2251(a) and

2253(a)(1)(A), to the President’s power to reduce, modify, 

or terminate a safeguard, as provided for in Section 2254.

The trade court seems to have been persuaded to adopt 

the contrary view due, at least in part, to its concern that 

the government’s interpretation “risks permitting absurd 

results” (e.g., a 1% initial tariff followed by a 50% modified 

tariff, with no cost-benefit analysis of the 50% rate) and 

might allow the modification “exception” of Section 2254 to 

“swallow . . . the rule” of Section 2251. J.A. 27. We do not 

share this fear. On any reading, a “modification” must be 

a relatively minor adjustment; expansion of a 1% duty to a 

50% duty is obviously not a minor change. And any modification to a duty rate must comply with the phase-down

requirement, preventing the modified tariff from being any 

higher than the tariff that was imposed in the preceding 

year. See Reply Br. at 42 (Government conceding “[t]he 

President’s modification authority remains subject to the 

section 2253(e)(5) phase-down requirement”). More importantly, the trade court failed to explain how its conclusion is consistent with the actual language of the statute, 

or how the government’s interpretation is a clear misconstruction.

We conclude that the President’s view that he was not 

required to re-weigh the costs and benefits when modifying 

the safeguard pursuant to Section 2254(b)(1) is not a clear 

misconstruction. Thus, Appellees have failed to show that 

the President committed any procedural violation in issuing Proclamation 10101.

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SOLAR ENERGY INDUSTRIES ASSOCIATION v. US 27

V 

Because the President’s interpretation of 19 U.S.C. 

§ 2254(b)(1)(B) as permitting trade-restricting modifications is not a clear misconstruction, and because the President did not violate the procedural requirements of the 

statute, we reverse the trade court’s judgment. Proclamation 10101 is not invalid.

REVERSED AND REMANDED

COSTS

No costs.

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