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 REPRESENTA TIVE 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’ mo tion to dissolve the PI, vacates the First Withdrawal, grants Plaintiffs’ cross-motion to modify the PI, gr ants Plaintiffs’ motion to complete the administrative record, and denies Plaint iffs’ motion to stay pending appeal.] Dated: October 15, 2020 Amanda Shafer Berman, John Brew and LarryF. Eisenstat, Crowell & Moring LLP, of Washington, DC and New York, NY, argued for plaintiff, Invenergy Renewables LLC andCourt No. 19-00192 Page 2

plaintiff-intervenors, Clearway Energy Group LLC and AES Distributed Energy, Inc . With them on the briefs were Kathryn L. Clune, Frances Hadfield and Leland P. Frost. Matthew R. Nicely and Daniel M. Witkowski, Akin, Gump, Strauss, Hauer & Feld LLP, of Washington, DC, argued fo r plaintiff-intervenor, Solar Energy Industries Association. With them on the prior briefs were Hughes Hubba rd & Reed LLP, of Washington, D.C. Christine M. Streatfeild and Kevin M. O’Brien, Baker & McKenzie LLP, of Washington, DC, argued for plaintiff-intervenor, EDF Renewables, Inc. Stephen C. Tosini, Senior Trial Counsel, Comm ercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argue d for defendants. With him on the briefs were Joseph H. Hunt, Assistant Attorney General, Etha n P. Davis, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Ta ra K. Hogan, Assistant Director. John M. Gurley, Dianna Dimitriuc-Quaia and )ULHGHULNH 6 *ऺUJHQV , Arent Fox LLP, of Washington, DC, argued fo r defendant-intervenors, Hanwha Q CELLS USA, Inc . and Auxin Solar Inc

. With them on the briefs was Jessica R. DiPietro. Katzmann, Judge: The court return s to its order preliminarily enjoining the United States and the Office of the United States Trade Repr esentative (“USTR”) from withdrawing its previously granted exclusion from safeguard duties on imported bifacial solar modules, duties which the President imposed by proc lamation to protect domestic industry. 1 For the third time in this hotly contested litigation, the court is presented with a failu re to comply with foundational principles of administrative law -- in this case, to act with transparency and to provide adequate, public explanation of agency decisions. Conse quently, the court is pr ecluded once again from conducting a full and final review of the merits of th e USTR claim that its effort to withdraw the exclusion from safeguard duties sho uld be sustained. The Defendant s’ renewed motion to dissolve the preliminary injunction (“PI”) is denied. In so holding, the court reiterates that it no way

intimates a view as to the ultimate outcome of this litigation to exclude bifa cial solar products from safeguard duties or to withdraw that exclusion.

1 For the purposes of this opinion, the terms “solar modules” and “solar panels” are used interchangeably.Court No. 19-00192 Page 3

Plaintiff Invenergy Renewables LLC (“Invenergy”), a renewable energy company, joined by Plaintiff-Intervenors Solar Energy Industrie s Association (“SEIA”), Clearway Energy Group LLP (“Clearway”), EDF Renewables, Inc. (“EDF- R”), and AES Distributed Energy, Inc. (“AES DE”) (collectively, “Plaintiffs”), filed a motion for a PI to enjoin the United States, USTR, U.S. Trade Representative Robert E. Lighthizer, U. S. Customs and Border Protection (“CBP”), and CBP Acting Commissioner Mark A. Morgan (coll ectively, “the Government”) from implementing

the Withdrawal of Bifacial Solar Panels Exclus ion to the Solar Products Safeguard Measure, 84 Fed. Reg. 54,244–45 (USTR Oct. 9, 2019) (“First Withdr awal”). Invenergy’s Mot. for Prelim. Inj., Nov. 1, 2019, ECF No. 49. Defendant-Intervenors Hanwha Q CELLS USA, Inc. (“Hanwha Q CELLS”) and Auxin Solar Inc. (“Auxin Solar”) (c ollectively, “Defendant -Intervenors”) join the Government in this case. Hanwha Q CELLS’ Mo t. to Intervene as Def.-Inter., Nov. 4, 2019, ECF No. 50; Order Granting Mot., Nov. 4, 2019, ECF No. 54; Auxin Solar’s Mot. to Intervene as Def.- Inter., Feb. 7, 2020, ECF No. 136; Order Granti ng Mot., Feb. 10, 2020, ECF No. 141. The court granted Plaintiffs’ motion for a PI on Decembe r 5, 2019, observing that “[t] he Government must follow its own laws and procedures when it acts.” Prelim. Inj. Order and Op., Invenergy Renewables LLC v. United States, 43 CIT __, __, 422 F. Supp. 3d 1255, 1265 (2019), ECF No. 113 (“Invenergy I”). Invenergy I was followed by tw o more litigated motions and opinions. See Order and Op. Denying Mot. to Show Cause, Inve nergy Renewables LLC v. United States, 44 CIT __, 427 F. Supp. 3d 1402 (2020), ECF No. 149 (“Inve nergy II”); Order and Op. Denying Mot. to Dissolve PI, Mots. to Dismiss, and Granting Mot. to Suppl. Compls., Invenergy Renewables LLC v. United States, 44 CIT __, 450 F. Supp. 3d 1347 (2020), ECF No. 185 (“Invenergy III”). The court’s most recent decision in this case, Invenergy III, resolved several motions in light of USTR’s second determin ation to withdraw the exclusion for bifacial solar modules fromCourt No. 19-00192 Page 4

safeguard duties. Determination on the Exclusi on of Bifacial Solar Panels From the Safeguard

Measure on Solar Pro ducts, 85 Fed. Reg. 21,497–99 (USTR Apr. 17, 2020) (“Second Withdrawal”). There, the court denied, inter alia, t he Government’s first motion to dissolve the PI and an earlier motion asking the court to vacate the PI and dismiss the case as moot. Invenergy III, 450 F. Supp. 3d at 1351. Thereafter, USTR issu ed a notice of rescis sion of the First

Withdrawal. Rescission of the First Withdrawal of the Bifacial Solar Panels Exclusion From the Safeguard Measure on Solar Products, 85 Fe d. Reg. 35,975 (USTR June 12, 2020) (“June 2020 Rescission”). The Government then filed a rene wed motion to dissolve the PI based on the June

2020 Rescission. Def.’s Mot. to Dissolve PI, June 12, 2020, ECF No. 198 (“Def.’s Renewed Mot. to Dissolve PI”). Plaintiffs res ponded with a cross motion to amend the PI to include the Second Withdrawal, and also filed a motion to complete th e administrative record. Pls.’ Resp. to Def.’s

Mot. To Dissolve PI and Cross-Mot. To M odify PI, June 29, 2020, ECF No. 206 (“Pls.’ Br.”); Pls.’ Mot. to Complete A.R., June 19, 2020, ECF No. 201. Without in any way reaching the merits of the Government’s action seeking to withdraw the exclusion from safeguard duties, the court

now denies the Government’s renewed motion to dissolve the PI, vacates the First Withdrawal, modifies the PI to enjoin enforcement of the Second Withdrawal, grants Plaintiffs’ motion to complete the record, in part, and denies Plai ntiffs’ motion to stay the case pending appeal.

BACKGROUND The court presumes familiarity with its previous opinions -- (1) Invenergy I, supra, (2) Invenergy II, supra, and (3) Invenergy III, supra, -- each 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 within the American solar industry between entities that rely on the importation of bifacial solar panels and entities that produceCourt No. 19-00192 Page 5

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 solar panels does not harm domestic producers because domestic producers do not produce util ity-scale bifacial solar panels; they thus oppose safeguard duties that they conten d increase the cost of these bifacial solar panels. Domestic producers, however, contend that solar project developers can use either monofacial or bifacial sola r panels, and thus safeguard duties are necessary to protect domestic production of solar panels. Both sides contend that their position better su pports expanding solar as a source of renewable energy in the United States. Invenergy I, 422 F. Supp. 3d at 1264. The statutory scheme for imposition of safe guard duties has been summarized by the court

as follows: Through Section 201, Congress provided a process by which the executive branch could implement temporary safeguard measures to protect 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 industries, the International Trade Commission (“ITC”) may make an affirmativ e determination that serious injury or a threat of serious injury to that indu stry exists. 19 U.S.C. § 2252. The President may then authorize discretionary measures , 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 ma ximum 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 ab ility 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, th e safeguard statute mandates that the President “shall by regulation provide for th e efficient and fair administration of all actions taken for the purpose of providing import relief.” 19 U.S.C. § 2253(g)(1). Id. at 1265–66 (footnote omitted). Through Presidential Proclamation 9693 issued on January 23, 2018, the President imposed safeguard duties, designe d to protect the domestic in dustry, 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 Proclamation”). Afte r a sixteen-month notice-and-comment processCourt No. 19-00192 Page 6

through which USTR considered requests for excl usions, USTR decided to exclude bifacial solar panels from safeguard duties. Exclusion of Part icular Products From the Solar Products Safeguard Measure, 84 Fed. Reg. 27,684–85 (USTR June 13, 2019) (“June 2019 Exclusion”). Four months later, however, USTR published the First Withdrawal. The First Withdrawal explained that, “[s]ince publication of [the June 2019 Exclusion] notice, the U.S. Trade Representative has evaluated this exclusion further and, after cons ultation with the Secretaries of Commerce and Energy, determined it will undermine the objectives of the safeguard measure.” First Withdrawal, 84 Fed. Reg. at 54,244. Absent intervening court ac tion, therefore, the First Withdrawal would have reinstituted safeguard duties on certain bifacial solar panels. Plaintiff Invenergy initiated th is case in response to the First Withdrawal. Summons, Oct. 21, 2019, ECF No. 1; Invenergy’s Compl., Oct. 21, 2019, ECF No. 13. The court issued a temporary restraining order, Nov. 7, 2019, ECF N o. 68, and later a PI, to enjoin USTR from reinstituting safeguard duties on ce rtain bifacial solar panels th rough implementation of the First Withdrawal. Invenergy I, 422 F. Supp. 3d at 1294. The PI found that USTR made the decision with only nineteen days’ notice to the public, wit hout an opportunity for af fected or interested parties to comment, and withoutreasoned explanation on a developed public record. Id. at 1286– 88. The PI included enjoining USTR from am ending the Harmonized Tariff Schedule of the United States (“HTSUS”) to reflectwithdrawal of the Exclusion, “ until entry of final judgment as to Plaintiffs’ claims against Defendants in this ca se.” Id. at 1295. In so ruling, the court held that

the First Withdrawal of the June 2019 Exclus ion by the Government likely violated the Administrative Procedure Act (“APA”) on tw o grounds: (1) the rulemaking occurred without notice and comment, id. at 1286–87; and (2) it was lik ely done in an arbitrary and capricious

manner. Id. at 1287–88.Court No. 19-00192 Page 7

On January 24, 2020, the Government filed a statu s report notifying the court and the other parties of USTR’s publication of “a notice in the Federal Registe r, requesting interested party comment regarding whether to withdraw the [June 2019 Exclusion] from the safeguard measure pursuant to section 201 of the Trade Act of 1974, 19 U. S.C. § 2251, et seq., for bifacial solar panels contained in [June 2019 Exclusion] .” Def.’s Status Report at 1, ECF No. 131. USTR published the notice in the Federal Register three days later, thereby initiating the comment period.

Procedures to Consider Retention or Withdrawal of the Exclusion of Bifacial Solar Panels From the Safeguard Measure on Solar Products, 85 Fed. Reg. 4,756–58 (UST R Jan. 27, 2020) (“January 2020 Notice”). The January 2020 Notice acknowledge d the court’s PI “enjoining the U.S. Trade Representative from withdrawing the exclusion on bifacial solar panels from the safeguard measure,” and noted that “[i]f the U.S. Trade Repr esentative 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 inj unction.” Id. at 4,756. In response, Plaintiffs Invene rgy, 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 publication of the January 2020 Notice violated the PI. The Government responded with a motion to dismiss an d vacate the First Withdrawal as moot. Def.’s Resp. to Invenergy’s Mot. to Show Cause and Mo t. to Vacate Withdrawal and Dismiss Case as Moot, Jan. 7, 2020, ECF No. 139. The court ruled excl usively on the Plainti ffs’ motion stating, “the Government’s [January 2020 Notice] did not viol ate the text of [the PI ] because the [January 2020 Notice] does not (1) implement the [First Withdr awal]; (2) modify the HTSUS; or (3) enforce or make effective the [First Withdrawal] or modi fications to the HTSUS related to the [FirstCourt No. 19-00192 Page 8

Withdrawal].” Invenergy II, 427 F. Supp. 3d at 1407. The court further held that the January 2020 Notice alone did “not constitute a final decision to implement the previous or any new withdrawal of the Exclusion of bifacial solar panels.” Id. The court, moreover, made clear that “[it] retains exclusive jurisdiction over the implementation, en forcement, or modification of the [First Withdrawal] until such date as a final judgment is entered in this case.” Id . The court did not rule

on the Government’s motion to dismiss at that time because it required further briefing. Id. On April 14, 2020, the Government filed another status report to inform the court of the

issuance of USTR’s Second Withdrawal. Def. ’s Status Report, ECF No. 155. The Second

Withdrawal withdraws the Exclusion of bifacial so lar panels from safeguard duties -- the same

conclusion as the First Withdrawal. In that status report, the Government explained that “[i]n response to the [c]ourt’s prelimin ary conclusion that re pealing the withdrawal of the exclusion ‘requires rulemaking subject to . . . APA notice and comment,’ USTR ‘opened a public docket,’ and received 15 comments regarding the bif acial exclusion and 49 subsequent comments responding to the initial comments.” Id. at 2 (citations omitted). Further, the Government explained that USTR “based the [Second Withdraw al] on the comments and evidence received.” Id. Based on this new decision by USTR, the Gove rnment filed its first mo tion to dissolve the PI, pursuant to USCIT Rule 60(b)(5). Def.’s Mot. to Dissolve PI, Apr. 16, 2020, ECF No. 156. The Government argued that the Second Withdrawal “cured the sole reason for which the injunctive relief was granted.” Id. at 1. Plaintiffs argued that the Second Withdrawal was an arbitrary and capricious decision and thus did not cure the s econd likely APA violation previously identified by the court. E.g., Invenergy, Clearway, and AES DE’s Re sp. in Opp’n to Def.’s Mot. to Dissolve Prelim. Inj., May 7, 2020, ECF No. 1 63. Shortly thereafter, Plaintiffs filed motions to supplementCourt No. 19-00192 Page 9

their complaints to include the Second Withdrawal. Pls.’ Mot. for Leave to File Suppl. Compls., May 8, 2020, ECF No. 170. Prior to holding oral argument on those motions , the court issued questions to parties for written answers. May 8, 2020, ECF No. 169. In re sponding to these questions, the Government attached two memoranda to its responses to the court’s questions. Mem. from DUSTR Jeffrey D.

Gerrish and General Counsel Jo seph Barloon to USTR Robert Li ghthizer, Apr. 13, 2020, Attach. 1 to Def.’s Resp. to Ct.’s Questions, ECF No. 172-1; Mem. from DUSTR Jeffrey D. Gerrish and General Counsel Joseph Barloon to USTR Robert Lighthizer, Apr. 10, 2020, Attach. 2 to Def.’s Resp. to Ct.’s Questions, ECF No. 172-2 (“ Gerrish Memorandum”). The USTR Memoranda consist of Deputy U.S. Trade Representative Jeffre y D. Gerrish’s and U.S. Trade Representative General Counsel Joseph Barloon’s an alysis of USTR’s authority to withdraw an exclusion, their analysis of comments received pursuant to the January 2020 Noti ce, and a recommended decision, initialed by U.S. Trade Representative Robert Lighthizer. Id. The court then held oral argument and issued Invenergy III in which it decided multiple outstanding motions. Oral Arg., May 13, 2020, ECF No. 177; 450 F. Supp. 3d 1347. First, th e court denied the Government’s motion to dismiss for failure to join an indispensable party. Inve nergy III, 450 F. Supp. 3d at 1356–57. Second, the court granted Plaintiffs’ motion to s upplement their complaints to include the Second Withdrawal. Id. at 1357–58. Third, the court denied the Government’s motion to vacate the First

Withdrawal and dismiss the case as moot because the Government had not shown that the First

Withdrawal was moot nor did the court have the authority to vacate the First Withdrawal without a decision on the merits. Id. at 1358–60. Finally, th e court denied the Government’s first motion

to dissolve the PI because the Government had not proved sufficiently changed circumstances. Id. at 1360–64. Thus, the litigation con tinued on the basis of USTR’s decisions to withdraw theCourt No. 19-00192 Page 10

Exclusion through the First Withdrawal and Second Withdrawal. The Government appealed the

denial of its first motion to dissolve the PI on August 5, 2020. Invenergy III, appeal docketed No. 2020-2130 (Fed. Cir. Aug. 5, 2020), ECF No. 240. As the litigation proceeded, on June 5, 2020, th e Government filed the administrative record. ECF Nos. 195, 196. Plaintiffs subsequen tly moved to complete the agency record. Pls.’ Mot. to Complete A.R. The Government and Defendant-Intervenors responded in opposition on July 10, 2020. Def.’s Opp’n to Pls.’ Mot. to Suppl. the A.R., ECF No. 210 (“Def.’s Resp. to Mot. to Complete A.R.”); Resp. of Def.-Inters.’ to Pls. ’ Mot. to Complete the A.R., ECF No. 211 (“Def.- Inters.’ Resp. to Mot. to Complete A.R.”). Further, in response to Invenergy III, USTR published the June 2020 Rescission in which it “expressly rescind[ed] the [First Withdraw al].” 85 Fed. Reg. at 35,975. Subsequently, the

Government made its second motion to dissolve the PI. Def.’s Renewed Mot. to Dissolve PI. Plaintiffs responded and made a cross-motion to modify the PI. Pls.’ Br. The Government and Defendant-Intervenors responded in opposition to the cross-motion. Def.’s Resp. to Pls.’ Mot. to Modify the PI, July 17, 2020, ECF No. 219 (“Def.’s Br .”); Def.-Inters.’ Resp. to Pls.’ Cross-Mot. to Modify PI, July 17, 2020, ECF No. 220 (“Def.-Inters .’ Br.”). Plaintiffs m oved for leave to file a reply, which the court granted. Pls.’ Mot. fo r Leave to File Reply, July 21, 2020, ECF No. 226; Ct.’s Order, July 23, 2020, EC F No. 230. Plaintiffs then replie d to the Government’s and Defendant-Intervenors’ responses to their cross-motion to modify the PI. Pls.’ Reply in Support of Cross-Mot. to Modify PI, July 31, 2020, ECF No. 238 (“Pls.’ Repl y”). After the co urt set a date for oral argument on the outstanding motions, the Government filed its above-mentioned appeal. On August 5, 2020, Plaintiffs moved to stay further proceedings regarding th e PI. Pls.’ Motion to Stay Further Proceedings Regarding the PI, ECF No. 239 (“Pls.’ Mot. to Stay”). The GovernmentCourt No. 19-00192 Page 11

and Defendant-Intervenors responded in opposition. Defs.’ Resp. to Pls.’ Mot. for Stay Pending Appeal, Aug. 8, 2020, ECF No. 243 (“ Def.’s Resp. to Mot. to Stay”); Resp. of Q CELLS and Auxin Solar to Pls.’ Mot. to Stay Further Proceedings Regarding th e PI, Aug. 7, 2020, ECF No. 242 (“Def.-Inter.’s Resp. to Mot. to Stay”). The court held oral argume nt via videoconference on Augu st 10, 2020. Oral Arg., ECF No. 245. The parties filed supplemental submi ssions on August 19, 2020. Invenergy, Clearway, and AES DE’s Post-Arg. Br. in Supp. of Mot. to Modify the PI, ECF No. 249 (“Invenergy’s Suppl. Br.”); Pl.-Inter. SEIA’s Post -Arg. Suppl. Br., ECF No. 247; EDF- R’s Post-Arg. Br. in Opp’n to the Gov’t’s Second Mot. to Dissolve, ECF No. 2 48 (“EDF-R’s Suppl. Br.”); Def.’s Post-Hearing Br., ECF No. 246 (“Def.’s Suppl. Br.”); Suppl. Br . of Def.-Inters., ECF No. 250 (“Def.-Inters.’ Suppl. Br.”).

JURISDICTION The court has jurisdiction over this case pur suant to 28 U.S.C. § 1581(i) (2012), which provides that the court “shall have exclusive jurisdiction of any 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 and enforcement” of tariffs and duties.

The court also notes that the Government’s pending interlocutory app eal of Invenergy III denying the Government’s first motion to dissolve a ffects its jurisdiction over parts of this case involved in the appeal. The impact of this appeal will be addressed as to each motion individually,

below.

DISCUSSION The court addresses three outstanding motions in turn: (1) Defendants’ motion to dissolve the PI, Def.’s Renewed Mot. to Dissolve PI; (2) Pl aintiffs’ motion to modify the PI, Pls.’ Br.; and (3) Plaintiffs’ motion to complete the administrative record, Pls.’ Mot. to Complete A.R. Further,Court No. 19-00192 Page 12

the court addresses Plaintiffs’ motion to stay, Pls.’ Mot. to Stay, as it is relevant to each of those

motions. I. Defendants’ Renewed Motion to Dissolv e the PI and Abandonment of the First Withdrawal The Government again asks the court to dissolve the PI. Def.’s Renewed Mot. to Dissolve PI. The Government argues that (1) the First With drawal is moot, particularly in light of USTR’s

issuance of the June 2020 Rescis sion, id. at 8–9; and (2) that th e Second Withdrawal constitutes changed circumstances that further warrants dissolu tion of the PI because of its provision of notice and comment process and reasoned decision, id. at 10–13. As detailed furthe r below, Plaintiffs oppose dissolution of the PI because the First Withdrawal is not mooted by the June 2020

Rescission and that the Second Withdrawal does not constitute sufficiently changed circumstances

to warrant the PI’s dissolution. Pls.’ Br. at 7–12. First, the court will not dissolve the PI because it concludes that it could not do so while the Government’s appeal is pending. Second, ev en if an appeal were not pending, the court

concludes that the Government’s motion should be denied because the court grants Plaintiffs’ cross-motion to modify the PI to include the Second Withdrawal. However, noting the

Government’s June 2020 Rescission and s ubsequent abandonment of defending the First Withdrawal, the court holds that the First Withdr awal was unlawful on the merits and vacates the agency decision accordingly.

A. The Court Does Not Have Jurisdictio n Over the Motion Because of the Pending Interlocutory Appeal. Just before the most recent oral argument wa s held and nearly two months after filing its second motion to dissolve the PI, the Government a ppealed this court’s decision not to grant its

first motion to dissolve the PI to the Federa l Circuit. Invenergy III, appeal docketed No. 2020-Court No. 19-00192 Page 13

2130 (Fed. Cir. Aug. 5, 2020), ECF No. 240. The Gove rnment characterizes its appeal as “a protective notice of appeal” because the “Solicito r General has not yet reached a decision on whether to appeal.” Def.’s Resp. to Mot. to Stay at 4. USCIT Rule 62(c) 2 states, “[w]hile an appeal is pendi ng from an interlocutory order or final judgment that grants, dissolves, or deni es an injunction, the c ourt may suspend, modify, restore, or grant an injunction on terms for bond or other terms that secure the opposing party’s rights.” The Government argues that this rule does not apply to orders that refuse to dissolve a PI, such as its appeal of Invenergy III. Def.’s Resp. to Mot. to Stay at 4 (“Congress recognized that orders ‘refusing to dissolve or modify injunctions’ are appeal able as of right, 28 U.S.C. § 1292(a)(2), yet the [c]ourt’s Rule omitted such orders among the si tuations in which parties may seek injunctions pending appeal.”). Regardle ss, USCIT Rule 62.1 allows the court to deny or contingently rule on a motion for relief that is barred by a pending appeal. Rule 62.1(a) states, “[i]f a timely motion is made for relief that the cour t lacks authority to grant because of an appeal that has been docketed and is pending, the court may: (1) defer considering the motion; (2) deny the motion; or (3) state either that it would grant the motion if the court of appeals remands for that purpose or that the moti on raises a substantial issue.” The Supreme Court stated in Griggs v. Prov ident Consumer Discount Co. that it is “generally understood th at a federal district court and a federa l court of appeals should not attempt to assert jurisdiction over a case simultaneously. Th e filing of a notice of appeal is an event of jurisdictional significance -- it confers jurisdiction on the court of appeals and divests the district

court of its control over those as pects of the case involved in the appeal.” 459 U.S. 56, 58 (1982)

2 The court’s rules are modeled on the Federal Rule s of Civil Procedure and USCIT Rule 1 notes that “[t]he court may refer for guida nce to the rules of other courts.”Court No. 19-00192 Page 14

(citations omitted). The Federal Circuit has stated that “[o]rdinarily, the act of filing a notice of appeal confers jurisdicti on on an appellate court and divests the trial court of jurisdiction over matters related to the appeal.” Gilda Indus. Inc. v. United States, 511 F.3d 1348, 1350 (Fed. Cir. 2008). This interpretation is further supporte d by the rationale of the rule, which the Federal Circuit has described as “promot[ing] judi cial economy and avoid[ing] the confusion and inefficiency that might flow from putting the same issue before two courts at the same time.” Id. at 1359 (internal quotation omitted). However, the Federal Circuit, in the context of post-appellate mandate issuance, also stated that “district c ourts possess broad equitable authority to modify injunctions . . . particularly under . . . circumst ances where it is done to preserve the status quo while motions affecting that injunction are unde r advisement.” Amado v. Microsoft Corp., 517 F.3d 1354, 1358 (Fed. Cir. 2008). Other Circuits have also interpreted the G riggs principle in the context of interlocutory appeals to limit the jurisdic tion of district courts wh ile there is an appeal pending over a PI to maintaining th e status quo of the parties involve d. See Prudential Real Estate Affiliates, Inc. v. PPR Realty, Inc., 204 F.3d 8 67, 880 (9th Cir. 2000) (“A district court lacks jurisdiction to modify an injunc tion once it has been appealed except to maintain the status quo among the parties.”); Sierra Club, Lone Star Ch apter v. Cedar Point O il Co., 73 F.3d 546, 578 (5th Cir. 1996) (citing Coastal Corp. v. Texas Eastern Corp., 869 F.2d 817, 819–20 (5th Cir. 1989)) (“We have held, however, that the authority granted by Rule 62(c) does not extend to the dissolution of an injunction. In addition, we have held that the district court’s power to alter an injunction pending appeal is limited to ‘maintaining the status quo.’”); Lewis v. Tobacco Workers’ Int’l Union, 577 F.2d 1135, 1139 (4th Cir. 1978) (quoting Fed. R. Civ. P. 62(c)); Ideal Toy Corp. v. Sayco Doll Corp., 302 F.2d 623, 625 (2d Cir. 1962) (stating that Rule 62(c) “permits modification of injunction orders during the pend ency of an appeal. But this rule is described asCourt No. 19-00192 Page 15

‘merely expressive of a power inherent in the court to preserve the status quo where, in its sound discretion, the court deems the circumstances to jus tify.’”) (“[T]he power given to the district court through FRCP 62(c) . . . only applies to allow the district court to make provision for the ‘security of the rights of the adverse party’”). Furthermor e, any action taken pursuant to Rule 62(c) “may not materially alter the status of the case on app eal.” Nat. Res. Def. Council v. Southwest Marine, Inc., 242 F.3d 1163, 1166 (9th Cir. 2001) (citation omitted). See also Ortho Pharmaceutical Corp. v. Amgen, Inc., 887 F.2d 460, 464 (3d Cir. 1989) (stating that district court may modify a PI to alter the status quo to “preserve the integrity” of the appeal). Thus, these cases indicate that any jurisdiction retained by the court during the pe ndency of the Government’s appeal of the court’s denial of its first motion to dissolve the PI is limited to preserving the case on appeal and preserving the status quo of the parties. However, the court m ay, pursuant to Rule 62.1, stay consideration of the motion, deny the motion, or state that it would grant the motion on remand of the issue, or state

that the motion raises a substantial issue. The court concludes that a ruling on the Gove rnment’s renewed motion that dissolves the PI would interfere with the case on appeal. For these reasons the court concludes that it does not retain the jurisdiction to dissolve the PI while the appeal is pending. However, for the reasons stated below, the court vacates the First Withdr awal on the merits as a deficient rulemaking and modifies the PI to explicitlyincorporate the Sec ond Withdrawal. Thus, the court denies the

Government’s renewed motion to dissolve the PI.

B. The Court Vacates the First Withdrawal on the Merits. At oral argument, the Government, for the firs t time in this litigation, explicitly confessed error regarding the First Withdr awal. Compare Transcript of Oral Arg. of Aug. 10, 2020 at 9, Aug. 19, 2020, ECF No. 249-1 (“we agree that the [First Withdrawal] did not follow APA notice andCourt No. 19-00192 Page 16

comment procedures.”) with Transcript of Oral Arg. of Feb. 12, 2020 at 84, May 8, 2020, ECF No. 168-3 (answering “No.” in response to court’ s question of “Is the Government confessing error?”). This confession of error and USTR ’s publication of the June 2020 Rescission 3 in which USTR clarified that it has no intention of implem enting the First Withdrawal allows the court to

now conclude that the First Withdrawal should be set aside as unlawful decision pursuant to the APA. 5 U.S.C. § 706(2) (requiring that courts shall “hold unlawful and set aside” agency action that is found to be “without observance of proc edure required by law”). Furthermore, the parties agree that this course of action is permissibl e regarding the First Withdrawal. See EDF-R’s Suppl. Br. at 7 (“the [c]ourt can now v acate the First Withdrawal, but it must do so on the merits, with substantive decisions with respect to inter alia, jurisdiction, standing, and APA rulemaking regarding the First Withdrawal”); De f.’s Suppl. Br. at 3 (stating that the court “may ‘set aside’ the

First Withdrawal” on the basis that “the Firs t Withdrawal did not follow notice and comment procedures” (citing Virgin Islands Tel. Co rp. v. FCC, 444 F.3d 666, 671 (D.C. Cir. 2006)); see also Def.-Inter.’s Suppl. Br. at 5–6 (p roviding authority for the court’s ability to vacate the First Withdrawal, but stating that it may vacate without assessing the merits (citing Daimler Truck N. Am. LLC v. EPA, 737 F.3d 95, 103 (D.C. Cir. 2013); Shell Oil Co. v. EPA, 950 F.2d 741, 765 (D.C. Cir. 1991))).

3 Plaintiffs argue that USTR’s June 2020 Rescission is not effective to resc ind the First Withdrawal because the court previously held that the First Withdrawal was a rule and that an agency can only rescind a rule through notice and comment rulemaki ng. Pls.’ Br. at 9. Th e Government responds that the “[June 2020 Rescission] reso lves any uncertainties about US TR’s intentions,” Def.’s Br. at 16, and, at oral argument, further argued that at most th e June 2020 Rescission was an interpretative statement not subject to notice an d comment requirements, Tr anscript of Oral Arg. of Aug. 10, 2020 at 10. Because the c ourt vacates the First Withdraw al, it need not reach these issues.Court No. 19-00192 Page 17

For that reason, the court incorporates its anal ysis in Invenergy I, decides that each of its preliminary conclusions apply to the merits of the First Withdrawal, and concludes that the First Withdrawal must be vacated pursuant to 5 U.S.C. § 706(2) of the APA as an agency action that is

not in accordance with the law. See Nat’l Parks Conservation Ass’n v. Salazar, 660 F. Supp. 2d 3, 5 (D.D.C. 2009) (“[N]otice and comment procedure is not required where a court vacates a rule after making a finding on the merits.”) (citing Cement Kiln Recycling Coal. v. EPA , 255 F.3d 855, 872 (D.C.C. 2001)); Ass’n of Private Sector Colleges and Univs. v. Duncan, 681 F.3d 427, í (D.C. Cir. 2012) (vacating a rule that did not follow APA notice and comment rulemaking procedures). The court notes that Plaintiffs’ claims regarding th e Second Withdrawal, including USTR’s authority to withdraw exclusions to the safeguard measure, remain for final adjudication

on the merits. II. Plaintiffs’ Motion to Modifythe Preliminary Injunction In response to the Government’s renewed motion to dissolve the PI, Plaintiffs filed a crossmotion to modify the PI to expressly incorporate the Second Withdrawal “to explicitly prevent Defendants from entering into force or making ef fective the [Second Withdrawal].” Pls.’ Br. at 1. Plaintiffs argue that they remain “likely to su cceed on the merits of their challenge to USTR’s

withdrawal action” because the Second Withdraw al “remains an arbitrary and capricious action lacking sufficient explanation” and that “USTR lacks the author ity to withdraw the [June 2019 Exclusion] and violated procedur es required by statute to modify a safeguard action.” Id. at 13. The Government responds that a presumption of regularity applie s to the Second Withdrawal, Plaintiffs are not likely to succeed on the merits of the challenge to the Second Withdrawal, and that Plaintiffs no longer face irreparable procedural harm as identified in the PI. Def.’s Br. at 19– 20, 22, 40. Defendant-Intervenors make similar argum ents and also argue that the harm to theCourt No. 19-00192 Page 18

domestic industry caused by the June 2019 Exclus ion for bifacial solar modules outweighs any harm to Plaintiffs. Def.-Inters.’ Br. at 2–4, 40–43. The court concludes that it retains jurisdic tion over modification of the PI despite the Government’s appeal and that the PI should be modified in order to preserve the status quo during the pendency of the appeal and until final resolution of this case on the merits. Thus, the court grants Plaintiffs’ cross motion. A. Jurisdiction Over this Motion Because of the Pending Interlocutory Appeal First, as a threshold matter, the court concl udes that it retains jurisdiction over this motion despite the Government’s pending appeal. The cas elaw is clear that a court may exercise continuing supervision over a PI while an interlocut ory appeal is pending to the extent necessary to maintain the status quo. See Amado, 517 F .3d at 1358 (“district courts possess broad equitable authority to modify injunctions, . . . particularly under . . . circumstances where it is done to preserve the status quo while motions affecting that injunction are under advisement.”); Prudential Real Estate Affiliates, 204 F.3d at 880 (“A district co urt lacks jurisdiction to modify an injunction once it has been appealed except to maintain th e status quo among the part ies.”); Sierra Club, 73 F.3d at 578 (“We have held, however, that the au thority granted by Rule 62(c) does not extend to the dissolution of an injunction. In addition, we have held that the district court’s power to alter an injunction pending appeal is limited to ‘maintaining the status quo.’”) (citation omitted). The

Government and Defendant-Interven ors also acknowledge this authority. See Def.’s Resp. to Mot. to Stay at 5 (explaining that “i n [Sierra Club], the appeals court he ld that the district court was authorized to modify an injunc tion that had been appealed” (c iting 73 F.3d at 578)); Def.-Inters.’ Resp. to Mot. to Stay at 3 (“Thus, the district court retains jurisdiction during the pendency of an appeal to act to preserve the status quo.”) (citations omitted).Court No. 19-00192 Page 19

Plaintiffs here ask the court to modify the in junction in order to expl icitly incorporate the Second Withdrawal in acknowledgement of USTR’s actions subsequentto the court’s issuance of the PI last December and because they claim that the Second Withdrawal is similarly flawed. Pls.’ Br. at 2–3. For that reason, they argue, modification is necessary to avoid the inequity of the imposition of a new agency action with the same e ffect as the enjoined First Withdrawal and with

at least one of the same deficienci es the court identified in the PI -- a lack of reasoned explanation.

Id. at 3. The court concludes that it retains jurisdiction over this motion despite the Government’s appeal because Plaintiffs seek modification in orde r to further preserve th e status quo of the case

while their claims are decided on the merits. Th e court will not stay de cision on this motion and proceeds to the question of whether the status qu o would be preserved by modification of the PI. B. Modification of PI As the court noted in Ad Hoc Shrimp Trade Action Committee v. United States, 32 CIT 666, 670, 562 F. Supp. 2d 1383, 1388 (2008), in order for the court to modify a PI, the moving party must show (1) “a change in circumstances of the parties from the time the injunction would

issue that would make the modifi cation necessary”; and (2) continuation of the unmodified PI would be inequitable. Id. at 670. The first requi rement is based on the Supreme Court’s decision in Sys Fed’n No. 91 v. Wright, in whic h it stated that “[t]he source of the power to modify is of course the fact that an injunction often require s continuing supervision b y the issuing court and always a continuing willingness to apply its powe rs and processes on behalf of the party who obtained that equitable relief.” 364 U.S. 642, 647 (1961); see also United States v. United Shoe Machinery Corp., 391 U.S. 244, 252, (1968) (if an in junction has failed to achieve its intended results, the [] court has the power and the duty to modify the order).Court No. 19-00192 Page 20

Thus, the question before the court is whether modification of the PI is required in order to fulfill its original objective, to avoid inequity to Pl aintiffs, and to preserve the status quo while the Government’s appeal is pending. The court conclude s that the Plaintiffs have met this burden and

modification of the PI is warranted. Mainta ining the status quo requires modifying the PI to explicitly include and enjoin any enforcement of the Second Withdrawal. The original PI was premised upon the court’s conc lusion that the First Withdr awal likely violated the APA’s requirement of notice and comment and the pr ohibition on arbitrary and capricious agency decisions. Invenergy I, 422 F. Supp. 3d at 1286–88. As stated above, the court notes that the

Government now confesses error in relation to the First Withdr awal and the court vacates that decision. Thus, the PI cannot continue in its current form. However, because the court concludes that the Second Withdrawal pres ents changed circumstances that, if implemented, would likely result in the very inequity to the Plaintiffs the PI sought to pr event, modification of the PI is

warranted. The court concludes th at the Second Withdrawal is likel y arbitrary and capricious and so the court will modify the PI in order to give eff ect to its purpose -- to shield Plaintiffs from the effects of an agency decision that wa s undertaken in viol ation of the APA. The court disagrees with Plaintiffs that the Second Withdrawal was part of the same

unlawful decision to withdraw the Exclusion that was the First Withdrawal. See, e.g., Pls.’ Br. at 2 (“[T]he challenged action is essentially the same. The [Second Withdrawal] does exactly the same thing as the [First Withdrawal]”). As th e court stated in Invenergy II, the January 2020 Notice initiated a separate process to reach a new final decision, independent of the First Withdrawal. 427 F. Supp. 3d at 1407. Thus, the c ourt left open review of that process and subsequent final decision when directly challenged by Plaintiffs or another interested party. The court did not at that point rule on the merits of the January 2020 Notice or dismiss the case as toCourt No. 19-00192 Page 21

the First Withdrawal as requested by the Governme nt because to do so would have stripped the court of jurisdiction before USTR issued a new fi nal decision. See also Transcript of Oral Arg. of Feb. 12, 2020 at 31, 35, 56, 83 (all parties expre ssing concerns and doubts over the court’s jurisdiction over the January 2020 Notice and any subsequent d ecision at that point in the litigation). 4 Neither did the court block USTR from pro ceeding with the new process as requested by Plaintiffs because the court had no basis to pr esume that USTR’s new decision would be legally

deficient. See also Center for Science in the Public Interest v. Regan, 727 F.2d 1161, 1164 (D.C. Cir. 1984) (“we begin with the established propos ition that it is not improper for an agency to engage in new rulemaking to supersede de fective rulemaking.”); NAACP, Jefferson County Branch v. Donovan, 737 F.2d 67, 72 (D.C. Cir. 1984) (s ame). The court now exercises jurisdiction over the Second Withdrawal in light of the challenges in Plaintiffs’ amended complaint. Am.

4 The court notes that at various points the partie s have argued about the ap plicability of SKF USA, Inc. v. United States, 254 F.3d 1022 (Fed. Cir. 2001), to this case. See, e.g., Pls.’ Br. at 8 (arguing that USTR should have sought a remand pursuant to SKF USA); Transcript of Oral Arg. of Feb. 12, 2020 at 45–46 (Government arguing that SKF USA is distinguishable from this case because it was an antidumping case reviewing the retrospect ive application of duties). In that case the Federal Circuit stated that “when agency action is reviewed by the courts” an agency may, inter alia, “request a remand, without confessing error, to reconsider its previous position” or “request a remand because it believes that its original de cision was incorrect on the merits and it wishes to change the results.” SKF USA, 254 F.3d at 1027–28. While the Government’s arguments about USTR’s January 2020 Notice, Second Withdrawal, and June 2020 Rescission seem to fit these descriptions of an agency wishing to change its previously challenged decision, no motion for remand was ever made in this case. The Government unilaterally proceed ed with the January 2020 Notice without asking the court to stay the case pe nding that new determina tion and without asking for a voluntary remand. Therefore, the court pro ceeded with litigation wh ile USTR undertook this new process. Contrary to the G overnment’s claim that the court would not have allowed USTR to proceed with the process initiated with the January 2020 Notice if remand were required, Def.’s Br. at 17, USTR decided to undertake this proces s without the court’s guidance or oversight. Thus, the Government is correct that a remand request was not required to end the First Withdrawal or to come to a new decision to withdraw the June 2019 Exclusion. However, that the Government chose to ask for forgiveness instead of permission to go forward with this process cannot overcome the court’s review of that process while the cour t retains jurisdiction over the First Withdrawal and the Second Withdrawal.Court No. 19-00192 Page 22

Compls., May 27, 2020, ECF Nos. 190–94. Thus, the co urt is not ignoring the presumption of regularity that the Government argues applies to USTR’s decision as a new agency determination. Def.’s Br. at 19–21. Rather, the court concludes that Plaintiffs sufficiently rebutted this presumption by showing that the Second Withdrawal was likely arbitrary and capricious and that they would suffer from the same procedural harm through a decision that did not comply with APA requirements.

Plaintiffs have shown that the Second Withdr awal is likely arbitrar y and capricious under the well-developed caselaw defining what is requir ed of an agency in adequately explaining its determinations, particularly where that determin ation contradicts previous factual findings. The court need not reach each of Plaintiffs’ challeng es to the Second Withdraw al at this preliminary stage, and thus does not reach Pl aintiffs’ challenges to USTR’s st atutory authority for withdrawing an exclusion granted pursuant to Presidential Proclamation 9693. 1. Relevance of the Gerrish Memo First, the court addresses the scope of the agency’s decision. See U.S. Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1907 (2020) (“Rege nts”) (“Deciding whether agency action was adequately explained requires, first, knowing where to look for the agency’s explanation.”). The parties disa gree about whether the Gerrish Me mo, made public for the first time through a filing by the Government in response to the court’s questions, can be considered part of USTR’s statement of basis and pur pose and adequate explan ation of the Second Withdrawal. The Plaintiffs argue that it cannot be part of the determinat ion because it “was not provided with or even referenced in the [Second Withdrawal]” and thus was a “‘ground[] that the agency invoked when it’” acted. Pls.’ Br. at 19 (quoting Regents, 140 S. Ct. at 1907); see also Pls.’ Br. at 22–25. Plaintiffs further highlight th e importance of making the explanation of theCourt No. 19-00192 Page 23

decision available to the public so that it may “asse ss the lawfulness of the [a]gency’s action.” Id. at 23. The Government responds that the Gerrish Memo constitutes explanation of the agency decision which the court may review in determin ing “whether an agency has provided a rational basis, based on the relevant factors, for the conclusi on it reached.” Def.’s Br. at 18. It argues that this is true despite the Gerrish Memo not be ing published in the Fede ral Register. Id. at 18–19. Precedent indicates that the Gerrish Memo cannot supply the basis and purpose or adequate explanation of the Second Withdrawal. An agency is required to “incorporate in the rules adopted a concise general statement of their basis and purpose.” 5 U.S.C. § 553( c). “The purpose of requiring a statement of the basis and purpose is to enable courts, which have the duty to exercise review, to be aware of the le gal and factual framework underl ying the agency’s actions.” Am. Standard, Inc. v. United States, 602 F.2d 256, 269 (Ct. Cl. 1979) (citing Sec. Exch. Comm’n v. Chenery Corp., 318 U.S. 80, 94 (1943) (“Chenery”)). “I n addition, inextricably intertwined with the basis and purpose requirement of 5 U.S.C. § 553(c) is the ag ency’s need to respond, in a reasoned manner, to any comments received by the agen cy that raise significant issues with respect to a proposed rule. However, the agency need not respond to each comment, and the detail of the agency’s response depends upon the subject matter of the regulation and the comments received.” Disabled Am. Veterans v. Gober, 234 F.3d 682, 692 (Fed. Cir. 2000) (citation omitted). A separate, but related requirement, is that the agency provide adequate and reasoned explanation for its decisions. See 5 U.S.C. § 706 (“reviewin g court shall ... hold unlawfu l and set aside agency action, findings, and conclusions found to be arbi trary, capricious, an abuse of discretion, or

otherwise not in accordance with la w.”); Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402 (1971) (requiring agencies to provide ade quate reasons for their decisions), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99 ( 1977); Motor Vehicles Mfrs. Ass’n of U.S. v.Court No. 19-00192 Page 24

State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (“State Farm”) (stating the agency “must

examine the relevant data and articulate a sa tisfactory explanation fo r its action including a

‘rational connection between the facts found and the choice mad e”’ (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962))). 5 The Supreme Court’s recent decision in Regents outlines the principles behind an agency’s adequate explanation of its acti ons and informs the court’s analysis in the instant litigation. 140 S. Ct. 1891. “It is a ‘foundational principle of admi nistrative law’ that judicial review of agency action is limited to ‘the grounds that the agency invoke d when it took th e action.’” Id. at 1907 (citing Michigan v. EPA, 576 U.S. 743, 758 (2015)). See also Chen ery, 322 U.S. at 196–97 (1947) (noting that the court reviews “the propriety of [agency] ac tion solely by the grounds invoked by the agency”). In Regents, the Court rejected a post hoc explanation of an agency’s decision in the form of a memo published nine months after the agency action was announced and held that explanation of an agency’s ac tion must be contemporaneous with its decision. 140 S. Ct. at 1908– 09. The court noted that the “agency can offer a fuller explanation of the agency’s reasoning at

5 Defendant-Intervenors note that the statement of basis and pur pose requirement in 5 U.S.C. § 553 is distinct from the prohibi tion on arbitrary and capricious d ecision in 5 U.S.C. § 706. See Def.-Inters.’ Br. at 6–7. This is true in that the requirements are distinct and have different scopes depending on the nature of the agency decisi on. Compare 5 U.S.C. § 553 (requiring a statement of basis and purpose for agency rulemaking) with 5 U.S.C. § 706 (providing for judicial review for arbitrary and capricious agency actions). Howe ver, here, both requirements are applicable, because as the court previously held, the June 2019 Exclusion was a rulemaking and thus a withdrawal of that rule is also a rulemaking. See Invenergy I, 422 F. Supp. 3d at 1283–86. Further, these two requirements act in conj unction to form the “hard look” review requirement that courts impose on decisions through informal rulemaking by agencies. See, e.g., Catherine Sharkey, Federalism Accountability: “Agency-Forcing” M easures, 58 Duke L.J. 2125, 2181 (2009) (“[State Farm] articulates a standard of ‘hard look’ review in the c ontext of determining whether a regulation is ‘arbitrary and capricious’ under § 706 of the APA. State Farm solidifies previously articulated agency standards imposed by lower courts (under § 553 of the APA), such as the United States v. Nova Scotia Food Products Corp.[, 568 F.2d 240 (2d Cir. 1977),] obligation to respond to significant comments during the notice-and-comment period.”) (citations omitted).Court No. 19-00192 Page 25

the time of the agency action” bu t that “this route has important limitations.” Regents, 140 S. Ct. at 1907–08 (citing Pension Benef it Guaranty Corp. v. LTV Corp., 496 U.S. 633, 654 (1990)). In reaching its conclusion, the Court highlighted the importance of agency accountability that is furthered by a contemporaneous explanation of anagency’s actions “by ensuring that parties and the public can respond fully and in a timely manner to an agency’s exercise of authority.” Regents, 140 S. Ct. at 1909 (citing Bowen v. Am. Hosp. Ass’ n., 476 U.S. 610, 643 (1986); Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 155 (2012)) (“Considering only contemporaneous explanations for agency action also instills co nfidence that the reasons given are not simply convenient litigating positions.”). In sum, the Supreme Court stated, “The basic rule here is clear: An agency must defend its actions based on the reasons it gave when it acted. This is not the case for cutting corners to allow DHS to rely upon reasons absent from its origin al decision.” Regents,

140 S. Ct. 1909–10. The principles outlined in Regents are not new in the realm of administrative law. As the Supreme Court explained last year , “[t]he [APA’s] reasoned explana tion requirement . . . is meant to ensure that agencies offer genuine justificatio ns for important decisions, reasons that can be scrutinized by the courts and the interested publ ic.” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2575–76 (2019) (emphasis added). Further, as the Ninth Circuit explained in the opinion that the Supreme Court affirmed in part in Rege nts, public accountability for agency action can only be achieved if the electorate knows how to apportion praise fo r good measures and blame for bad ones. Regents of the Univ. of Cal. v. Dep’t of Homeland Sec., 908 F.3d 478 (9th Cir. 2018) (“Regents 2018”) (citing Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 498 (2010)) (“Without knowing the true source of an objectionable agency action, “the public cannot ‘determine on whom the blame or the punishme nt of a pernicious measure, or series ofCourt No. 19-00192 Page 26

pernicious measures ought really to fall.’” ( quoting The Federalist No. 70, at 476 (Alexander Hamilton) (Jacob E. Cooke ed. 1961))). Quoting the n-Professor Kagan, the Ninth Circuit also noted that “‘the degree to which the public can understand the sources and le vers of bureaucratic action’ is ‘a fundamental precondition of account ability in administration.’” Regents 2018, 908 F.3d at 499 (quoting Elena Kagan, Presidential Administration, 114 Harv ard L. Rev. 2245, 2332 (2001)). The D.C. Circuit has clearly identified a publication requirement in connection with the basis and purpose requirement of APA. See Act ion on Smoking and Health v. C.A.B., 713 F.2d 795, 799 (D.C. Cir. 1982) (“[A] basis and purpose statement need not be published ‘at precisely the same moment as the regulations,’ [however ] the enquiry must be whether the rules and statement are published close enough together in time so that ther e is no doubt that the statement accompanies, rather than rationalizes the rules.” (quoting Tabor v. Joint Bd. for Enrollment of Actuaries, 566 F.2d 705, 711 (D.C. Ci r. 1977))). Accountability con cerns have practical effects on parties impacted by agency rules. For exampl e, the D.C. Circuit, in Tabor v. Joint Bd. for Enrollment of Actuaries, explained that the AP A also guarantees that parties who are unhappy with an agency decision or finds error in a decision may petition the agency to reconsider. 566 F.2d at 711 (“the Board’s failure to publish a co ntemporaneous statement of basis and purpose made it practically impossible to file an intelligent petition fo r reconsideration. As a result, appellants lost a method of chal lenge less expensive and time-consum ing than judicial review; the Board lost an early opportunity to be apprised of and to correct any errors it might have made. Each agency shall give an interested person the right to petition fo r repeal of a rule.”). Unlike the memo at issue in Regents, the Gerrish Memo is contemporaneous with the Second Withdrawal. However, also unlike that me mo, it is uncontested that the Gerrish Memo has never been made publicly available outside this litigation. See Pls .’ Br. at 19; Def.’s Br. at 19;Court No. 19-00192 Page 27

Def.-Inters.’ Suppl. Br. at 9. The Government charac terizes this point as a mere formality that did not prejudice Plaintiffs’ substantial rights. Def.’s Suppl. Br. at 7 (citations omitted). “In

administrative law . . . there is a harmless error ru le: § 706 of the [APA], 5 U.S.C. § 706, instructs reviewing courts to take ‘due acc ount . . . of the rule of prejudicial error.’ If the agency’s mistake did not affect the outcome, if it did not prejudice th e petitioner, it would be senseless to vacate and remand for reconsideration.” PDK Lab’ys, Inc. v. US DEA, 362 F.3d 786, 799 (D.C. Cir. 2004);

see also Nat’l Ass’n of Home Builders v. Def. of Wildlife, 551 U.S. 644, 659 (2007) (“Mindful of Congress’ admonition that in reviewing agency acti on, ‘due account shall be taken of the rule of prejudicial error,’ 5 U.S.C. § 706, we do not believ e that this stray statement, which could have had no effect on the underlying ag ency action being challenged, requi res that we further delay the transfer of permitting authority to Arizona by remanding to the Agency for clarification.”). The court does not agree that this error did no t prejudice interested parties affected by the Second Withdrawal. First, Plaintiffs do not enco mpass the entirety of the interested public. See Invenergy’s Suppl. Br. at 5 (“Plai ntiffs are only a few of the dozens of commenters who supported maintaining the [June 2019 Exclusion]. Others in cluded small businesses, environmental groups, and municipalities . . . .”). As Plaintiffs note, “[h]ad Plaintiffs not pursued this litigation, no one

outside of USTR would ever have seen the Gerri sh Memo” and “the public still cannot see any of USTR’s . . . reasoning unless they happen to have a PACER account” and find the memo as attached to the Government’s pre-oral argument questions from May or the administrative record filed in June. Id. at 4. Second, providing explanation in an internal memorandum does not serve the APA’s mandate that an agency decision be adequately explained, i.e., not arbitrary and capricious, or the principles of administrative law that re quire transparency and public accountability. An explanation that is never made av ailable to the parties or to the public at largeCourt No. 19-00192 Page 28

is not one that can be considered transparent or of use to those who participated outside the

agency. 6 Rather, interested parties cannot understand and thus rebut or correct the rationale behind a rule that applies to them when that rati onale exists only in an internal memo. Furthermore, the Second Withdrawal does not re fer to or cite to any additional documents that may tip off interested parties to the existenc e of explanation outside of the Federal Register notice announcing the decision. See Morton v. Ruiz, 415 U.S. 199, 233 n.27 (1974) (quoting the House Report accompanying the APA requirement to publish substantive rules, H.R. Rep. No. 1497, 89th Cong., 2d Sess., 7 (1966), which stated th at “[a]n added incentive for agencies to publish the necessary details about their official activities in the Federal Register is the provision

6 The Government cites to several cases in which courts held that publication was not required. Def.’s Br. at 19 (citing Tourus Records Inc. v. DEA, 259 F.3d 731, 738 (D.C. Cir. 2001); Baltimore & Ohio Chicago Terminal Railroad Co. v. United States, 583 F.2d 678, 688 (3d Cir. 1978) (“Baltimore & O.C.T.R.”)); Def.’s Suppl. Br. at 6–7 (citing Miller v. Lehman, 801 F.2d 492, 497 (D.C. Cir. 1986); Tabor, 566 F .2d at 709–12 n.14 (D.C. Cir. 1977)). Tw o of those cases concerned agency adjudications and thus do not apply to rulemakings. See Tourus Records, 259 F.3d at 737 (finding DEA’s letter of denial of an applicati on to proceed in forma pauperis in a forfeiture proceeding to be arbitrary and capricious for lack of adequate reasoning); Miller, 801 F.2d at 497 (finding no legal error of Secret ary of the Navy’s letter of ce nsure in a service record). Unlike rulemakings, adjudications involve agency decisi ons that apply specifically and retroactively. Invenergy I, 422 F. Supp. 3d at 1285. Rulemakings, by contrast, appl y generally and prospectively. Id. The importance of publicly available reasoni ng is more important in decisions that apply broadly and prospectively rather th an decisions that affect one party who would have received the pertinent information from the agency during the course of the adjudication. Notably, the other two cases cited, Tabor and Baltimore & O.C.T.R., di d involve rulemakings. However, in Tabor the D.C. Circuit held that a “statement of reasons” for the agency’s action submitted during litigation were not part of the ag ency action to be reviewed for the court for compliance with the APA’s § 553 “basis and purpose” requirement. 566 F.2d at 711–12. The court further stated that “the Board’s failure to publis h a contemporaneous statement of basis and purpose made it practically impossible to file an intelligent peti tion for reconsideration[, thus,] appellants lost a method of challenge less expensive and time-c onsuming than judicial review.” Id. at 711. Similarly, in Baltimore & O.C.T.R., the Supreme Court held a regulation of the Interstate Commerce Commission (“ICC”) to have complied with both APA § 706(2)(A) and § 553(c). 583 F.2d at 684–88. There were no allegations of th e ICC’s interim or fina l decisions not being publicly available and the court he ld that the rule as published in the Federal Regist er provided the requisite statement of basis and purpose. See id. at 687–88.Court No. 19-00192 Page 29

that no person shall be adversely affected by material required to be published -- or incorporated by reference -- in the Federal Register but not so published.” (emphasis added)). The court is not holding that an agency may not provi de adequate explanation in a do cument outside of four corners of the Federal Register notice announcing a new agency decision, nor could it in line with APA caselaw. See, e.g., Baltimore & Ohio Chicago T erminal Railroad Co. v. United States, 583 F.2d 678, 684–88 (3d Cir. 1978) (“Baltimore & O.C.T.R.”) (reviewing the final rule, interim report, and final report of the Interstate Commerce Co mmission for arbitrary and capricious decision making). However, the court is st ating that adequate explanation of the agency’s decision has to be made public somewhere or in some manner all owing interested parties to review and scrutinize it. USTR did not provide access to its explanation he re and thus it cannot be considered as part of the grounds invoked by the agency wh en it acted. See Regents, 140 S. Ct. at 1907; Chenery, 322 U.S. at 196–97 (citations omitted). Requiring that the parties litigate a final agency decision in order to gain knowledge of and a ccess to the agency’s rationale wastes judicial resources and delays corrective agency action that would otherw ise be addressed by the agency in the first

instance. Finally, the Government and Defendant-Int ervenors claim that the Gerrish Memo is reviewable by the court as part of the agency record. Def.’s Br. at 19 (“The Gerrish Memo is part

of the full administrative record that was before th e Trade Representative at the time he made his decision.”) (internal quotation omitted); Def.-Inters .’ Br. at 10 (“[A] revi ewing court must take account of the whole administrative record (of whic h the Gerrish Memo is undeniably a part) under the APA”). However, the need for publication of an agency’s explana tion of its decision is distinct from the documents that may constitute the record when a decision is challenged and on review by a court. The record includes everything that is before the agency when it makes its decision,Court No. 19-00192 Page 30

regardless of what the agency relied on or f ound persuasive in making its determination. Ammex, Inc. v. United States, 23 CIT 549, 554–55, 62 F. Supp. 2d 1148, 1156 (1999). As the Supreme Court explained in State Farm, “ Congress required a reco rd of the rulemaking proceedings to be compiled and submitted to a reviewing court, 15 U.S.C. § 1394, and intended that agency findings under the Act would be supported by‘substantial evidence on the r ecord considered as a whole.’” 463 U.S. at 43–44 (citing S.Rep. No. 1301, 89th Cong., 2d Sess. 8 (1966); H.R.Rep. No. 1776, 89th Cong., 2d Sess. 21 (1966)). Further, as recentlysummarized by this court, “[p]rivileged and deliberative documents reflecting an agency’s internal deliberations do not form part of the administrative record, and, generally, are not disc overable so as to merit a privilege log, unless there is a showing of bad faith or improper behavior.” JSW Steel (USA) Inc. v. United States, 44 CIT __, __, Slip Op. 20-111 at 14 (citing Stand Up for California! v. U.S. Dep’ t of Interior, 71 F. Supp. 3d 109, 122–23 (D.D.C. 2014); Oceana, Inc. v. Ross, 920 F.3d 855, 865 (D.C. Cir. 2019)). Rather, as the court in JSW Steel stated, “[t]he pur pose of limiting review to the record actually before the agency is to guard against courts using new evidence to co nvert the arbitrary and capricious standard into effectively de novo re view.” JSW Steel, Slip Op. 20-111 at 14 (quoting Axiom Res. Mgmt., Inc. v. United States, 564 F.3d 1374, 1380 (Fed. Cir. 2009)) (citations omitted). Thus, there is a distinction between the publ ic documents in which the agency acts and explains its actions and the record documents which allow the reviewing court to examine the record that was before the agency and determin e if its final decision wa s based on substantial evidence, addressed major issues and evidence that detracted from its conc lusion, and whether its explanation is adequate in light of the informati on before the agency. The fact that a detailed explanation of the agency’s action exists somewher e is irrelevant to the question of whether the agency explained itself to the public when it acted. See State Farm, 463 U.S. at 43 (listingCourt No. 19-00192 Page 31

examples of situations in which an agency’s de cision is arbitrary and cap ricious: (1) when it relies on factors that Congress did not intend for it to cons ider, (2) when it fails to consider an important aspect of the problem, or (3) when it offers an explanation running counter to the evidence or is implausible to the point where it cannot be ascribed to expertise or a difference in view.). Thus, because the Gerrish Memo was never made public or referenced in the Second Withdrawal as published in the Federal Register, it cannot form part of the agency ’s decision or an explanation reviewable by the court for the agency’s action. In sum, the court notes that the Gerrish Memo is not part of USTR’s Second Withdrawal

and thus the court will not cons ider it in assessing whether USTR provided adequate basis and purpose and explanation for that decision. 2. The Second Withdrawal Is Likely Arbitrary and Capricious. Plaintiffs argue that the Sec ond Withdrawal is an arbitrary a nd capricious agency decision in violation of the APA because: (1) USTR did not adequately explain the reasoning between the

facts found and its ultimate conc lusion, including by not responding to comments from interested parties, Pls.’ Br. at 19–20; (2) USTR did not adequately acknowledge and explain its changed position between the June 2019 Exclusion and the Second Withdrawal, id. at 25–29; (3) USTR failed to consider an important part of the probl em -- the economic and social costs of the Second Withdrawal compared to its benefits, id. at 29–36; (4) USTR failed to ade quately consider other obvious policy alternatives, id. at 26–40; and (5 ) the Second Withdrawal is unsupported by the record evidence, id. at 40–47.

The Government and Defendant-Intervenors r espond that the Second Withdrawal was not an arbitrary and capricious decision because US TR addressed all material issues and made a

decision based on substantial record evidence . Def.’s Br. at 22–37; De f.-Inters.’ Br. at 6–27.Court No. 19-00192 Page 32

However, the Government, in making those ar guments often relied on the Gerrish Memo as providing the required e xplanation for USTR’s decision. See, e.g., Def.’s Br. at 24 (citing Gerrish Memo at 3); Def.’s Br. at 30 (quoting Gerrish Memo ); Def.’s Br. at 35 (ci ting Gerrish Memo at 8, 14); Def.-Inters.’ Br. at 19 (citing Gerrish Memo at 14); Def.-Inters.’ Br. at 21 (citing Gerrish Memo at 12). As discussed above, the explanation provided by the Gerrish Memo is not part of the court’s analysis of whether the Second Withdrawal was arbitrary and capricious, and thus the following makes no reference to this document.

The APA dictates that a court shall hold unlawful any agency action that is arbitrary and capricious. 5 U.S.C. § 706(2)(A). The Supreme C ourt explained this review as: “we determine only whether [the agency] examined ‘the relevantdata’ and articulated ‘a satisfactory explanation’ for [its] decision, ‘including a rational connectio n between the facts found and the choice made.’ We may not substitute our judgment for that of [t he agency], but instead must confine ourselves to ensuring that [it] remained ‘within the bounds of r easoned decisionmaking.’” Dep’t of Commerce v. New York, 139 S. Ct . 2551, 2569 (2019) (first quoting State Farm, 463 U.S. at 43; then quoting Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 87, 105 (1983)). This also includes addressing signifi cant comments made by interested parties during the notice and comment process in developing its final rule . Disabled Am. Veterans, 234 F.3d at 692. Furthermore, when an agency changes its positio n, the Supreme Court stated that an agency must acknowledge its change and provide a rational explanation for the change. F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502, 517 (2009). There, the Court explai ned that this does not require an agency to demonstrate that the reasons for the new policy are better than the reasons for the old so long as the agency believes the new reasons to be better. Id. at 515. However, the Court acknowledged an exception to th is standard where the agency’s “new policy rests upon factualCourt No. 19-00192 Page 33

findings that contradict those which underlay its prior policy; or when its prior policy has engendered serious reliance interests that must be taken into account.” Id. at 515 (citations omitted). See also Perez v. Mortgage Bankers Ass’n, 575 U.S. 92, 106 (2015) (“[T]he APA requires an agency to provide more substantial justification when its ne w policy rests upon factual findings that contradict those which underlay its prior policy; or when its prior policy has engendered serious reliance interest s that must be taken into account.”). Similarly, the Court held in Encino Motorcars v. Navarro that an “[u]nexplained inconsistency” in agency policy is “a reason for holding an interpretation to be an arbitrary and capricious change from agency practice.” 136 S. Ct. 2117, 2120, 2125–26 (2016) (quoting Nat’l Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 981 (2005)) (“Agencies are free to change their existi ng policies as long as they provide a reasoned explanation for the change.”).

The court concludes that the Second Withdrawal is likely arbitrary and capricious because USTR failed to adequately explain its reasoning and did not provide an adequate explanation of its change in position between the June 2019 Exclusion and the Second Withdrawal of that

exclusion.

The Second Withdrawal is deficient in that itdoes not respond to certain of Plaintiffs’ comments raising significant issues nor does it address evidence that detracts from its conclusion. First, in response to the January 2020 Notice and request for comments, Plaintiffs submitted comments disputing USTR’s authority to withdr aw a previously granted exclusion to the President’s safeguard measure. Pls.’ Br . at 21; e.g., A.R. 65–67, June 5, 2020, ECF No. 196 (Invenergy’s comments to USTR on USTR’s author ity to withdraw the exclusion); A.R. 38 (EDFR’s comments to USTR on USTR’s authority to w ithdraw the exclusion”). USTR summarizes its authority to grant exclus ions as delegated by the President in Proclamation 9693, highlighting thatCourt No. 19-00192 Page 34

its authority is limited by “the objectives of the safeguard measures.” Second Withdrawal, 85 Fed. Reg. at 21,498. However, this stat ement does not address Plaintiffs ’ contention that the safeguard statute itself prevents USTR fr om withdrawing the exclusion or its comments that the President did not delegate that authority. See, e.g., A.R. 65–67 (Invenergy’s comments); A.R. 38 (EDF-R’s comments). Second, the Second Withdrawal does not ad dress or explain evidence presented by Plaintiffs that bifacial solar panels and monofacial solar panels are not substitutable. See, e.g., A.R. 711–14 (SEIA’s comments on substitutability). USTR merely concludes, “[b]ifacial solar panels and monofacial solar panels are substitutes from the perspective of utilities planning solar generating facilities in locatio ns where both are cost-competitive with conventional forms of energy.” Second Withdrawal, 85 Fed. Reg. at 21,498. In their comments to USTR, SEIA explained its position that bifacial and monofacial solar panels have “limited substitutability . . . in utility-scale versus residential/commercial applications.” A.R. 711. Further, SEIA presented evidence in support of this clai m in the form of many exhibits showing the price, weight, and energy production capacity differe nces between bifacial and m onofacial solar panels. See A.R. 711–13 (providing citations to exhibits subm itted with SEIA’s comments). USTR itself acknowledges that “[b]ifacial solar panels are expected to offer a 5 to 10 percent improvement in energy output over a same-size monofacial pane l.” Second Withdrawal , 85 Fed. Reg. at 21,498. It is not apparent what evidence or reasoning US TR followed in light of this statement, which seems to indicate that bifacial solar panels ar e not interchangeable, and Plaintiffs’ evidence to

reach the conclusion that bifacial and monofacial solar panels are substitutable. NMB Singapore Ltd. v. United States, 557 F.3d 1316, 1319 (Fed. Cir. 2009) (“[W]hile its expl anations do not have to be perfect, the path of [an agency’s] decisionmust be reasonably discernable to a reviewingCourt No. 19-00192 Page 35

court.”). These two gaps in USTR’s reasoning s upport at least a preliminary conclusion that the Second Withdrawal is arbitrary and capricious.

The Second Withdrawal is also likely arbitrary and capricious in its fail ure to explain the change in its position that an exclusion on bifacial solar panels was warranted. The court notes that USTR did acknowledge its position change between the June 2019 Ex clusion and the Second Withdrawal in both the January 2020 Notice and Second Withdrawal. January 2020 Notice, 85 Fed. Reg. at 4,756 (“USTR is seeking public comment on whether the U.S. Trade Representative

should maintain the exclusion of bifacial solar panels from the safeguard measure, withdraw the exclusion, or take some other acti on within its authority with respect to this exclusion”); Second Withdrawal, 85 Fed. Reg. at 21,497 (“[USTR] estab lished procedures to consider whether to maintain, withdraw, or take some other action with respect to the exclusion of bifacial solar panels from the safeguard measure.”). However, this acknowledgement and USTR’s conclusory statements about the impact of the bifacial exclusion do not meet the standard of explaining its change in position as set forth in long-established caselaw on what is requi red of an agency when it changes its position. F.C.C. v. Fox, 556 U.S. at 517. USTR fails to explain what information it received or what facts changed since the issuance of the June 2019 Exclusion that led it to believe that withdraw was the more appropriate action, thus its decision was not adequately reasoned in this respect. See Encino Motorcars, 136 S. Ct. at2125–26. USTR instead states that “[i]mports of bifacial solar panels were ri sing even before the bifacial ex clusion and conti nued to increase after the exclusion.” Second Withdrawal, 85 Fed. Reg. at 21,498. USTR explains the impact of bifacial imports by stati ng, “[b]y disincentivizing domestic pr oducers’ production of bifacial solar panels, interfering with their ability to increase sale s of monofacial and bifa cial products into the utility segment, and having a depressive effect onprices for monofacial so lar panels, the bifacialCourt No. 19-00192 Page 36

exclusion is hindering the domes tic industry’s adjustment to import competition.” Id. at 21,498– 99. However, as explained, the court cannot discer n what facts or information have come to USTR’s attention since it grante d the June 2019 Exclusion that justif ies this conclusion in light of the information before USTR when it grante d the June 2019 Exclusion. See June 2019 Exclusion, 84 Fed. Reg. at 27,684 (“Based on an evaluation of th e factors set out in th e February 14 notice, which are summarized above, th e Trade Representative has dete rmined to grant the product

exclusions set out in the Annex to this notice”). Defendant-Interveno rs state that “[t]he [June 2019 Exclusion] did not elaborate any specific factual findings but summarily stated that USTR would only grant exclusions that did not undermine the objective of the safeguard measure, implying that in granting the [June 2019 Exclusion] it had determin ed this requirement was met.” Def.-Inters.’ Suppl. Br. at 12. It was not mere ly a passing inference or imp lication that allowed USTR to exclude bifacial panels in the June 2019 Exclusion, but its sole basis for this decision after considering evidence placed on the record for a year and a half was that it did not undermine the objectives of the safeguard measure. June 2019 Exclusion, 84 Fed. Reg. at 27,684 (noting that USTR “would only grant exclusions that did unde rmine the objectives of the safeguard measure”). Again, the court does not and should not decide that one position is superior to another. See F.C.C. v. Fox, 556 U.S. at 515. Rather, the court merely re quires transparency from USTR in explaining why it is changing its position on th e June 2019 Exclusion. This justification need not be more than what was provided in granting the June 2019 Exclusion, but some explanation of the change is required given that “its new policy [seems] to rest[] upon factual findings that contradict thoseCourt No. 19-00192 Page 37

which underlay its prior policy.” Id. USTR failed to provide that explanation in the Second Withdrawal, and thus its decision is likely arbitrary and capricious. 7 The court does not address the remainder of Plaintiffs’ assertions in support of its argument that the Second Withdrawal is arbitrary and caprici ous. The court need not decide these claims in deciding this still preliminary motion to modify the PI. Rather, the court will address these claims upon deciding the merits of Plaintiffs’ challe nge to the Second Withdrawal. However, as explained, the court finds sufficient deficiency with the Second Withdraw al to conclude that

Plaintiffs’ claims that the Second Withdrawal is al so arbitrary and capriciou s are likely to succeed on the merits. Thus, the Second Withdrawal suffers from at least some of the same flaws as the First Withdrawal. See Invenergy I, 422 F. Supp . 3d at 1287–88; see also id. at 1265 (“[A]t stake

here is whether USTR undertook reasoned decisi on making to implement the [First Withdrawal], as required by the APA, including provision for meaningful particip ation by interested parties.”). 3. Continuing Procedural Irreparable Harm Justifies Modification of the PI to Avoid Inequity to Plaintiffs.

The court concludes that th e Second Withdrawal is likely arbitrary and capricious. However, this conclusion alone does not justify modi fication of the PI. Plaintiffs must also show that there would be inequity in not modify ing the PI. Ad Hoc Shrimp, 32 CIT at 670. Here, the inequity of not modifying the PI is the prospect that Plaintiffs’ would face the same irreparable procedural harm in being subject to an arbitrar y and capricious decision as they faced when the court issued the PI enjoining enforcement of the First Withdrawal.

7 The court further notes that, because the Govern ment did not provide record documents showing what factual information USTR relied on in maki ng its June 2019 Exclusion, as discussed below regarding Plaintiffs’ motion to complete the admini strative record, it is hard at this stage to determine what facts the agency had before it in deciding to withdraw the previously granted exclusion for bifacial solar modules.Court No. 19-00192 Page 38

As the court explained in Invenergy I: The [irreparable harm] inquiry focuses on whether the court must act now to prevent a loss that cannot later be remedied. See, e.g., CPC Int’l Inc. v. United States, 19 CIT 978, 979, 896 F. Supp. 1240, 1242

о 44 (1995) (irreparable harm includes “costs, expenditures, business disruption or othe r financial losses” that plaintiff has “no legal redress to recover in court”). To determine whether an injury is irreparable, the court analyzes the ma gnitude and immediacy of the injury, and the inadequacy of future relief. Queen’s Flowers de Colombia v. United States, 20 CIT 1122, 1125, 947 F. Supp. 503[, 506] (1996). Harm such as “loss of goodwill, damage to reputation and loss of busine ss opportunities are a ll valid grounds for finding irreparable harm.” [C elsis In Vitro, In c. v. CellzDirect, Inc., 664 F.3d 992, 930 (Fed. Cir. 2012)]. Furthermore, unl ike injury for constitutional standing purposes, a procedural injury can itself c onstitute irreparable harm. A procedural violation can give rise to irreparable harm justifying injunctive relief because lack of process cannot be remedied with mone tary damages or post-hoc relief by a court.

. . . Therefore, the court concludes that this li kely procedural harm is irreparable, and thus merits preliminary injunctive relief b ecause they cannot be remedied after the [First Withdrawal] goes into effect. The alleged violation of the APA should be further enjoined to avoid the business uncerta inty that flows from such a procedural violation. The [First Withdrawal] cause s irreparable harm by eliminating the business certainty required by the solar indus try to plan and develop future projects. 422 F. Supp. 3d at 1290–91. Plaintiffs face these same irreparabl e harms from implementation of the Second Withdrawal. Being subject to a procedurally fl awed and inadequately explained decision would allow an agency decision to go into effect that also does not address sign ificant comments from the interested public. A decision that does no t evince meaningful c onsideration of public comments is no different than a decision implemented without opportunity for the public to comment. In both scenarios, there is the potential that the agency will establish a new status quo and engender new reliance interests on a decision that did not take acc ount of public input as required by the APA. See N. Mariana Islands v. United States, 686 F. Supp. 2d 7, 18 (D.D.C. 2009) (noting that once the regulatory change “has begun operation as scheduled . . . [the agency] is far less likely to be receptive to comments .”). The APA’s notice and comment requirement isCourt No. 19-00192 Page 39

not a pro forma requirement, but a substantive requirement that the agency account for the concerns and opinions of the interested pub lic before implementing or changi ng its policies. Thus, if the Second Withdrawal were to go into effect and thenlater held to provide inadequate response to comments, Plaintiffs would face harms from a pro cedurally deficient agency decision for which the court would be unable to remedy. Thus, Plaintiffs ’ continue to face irreparable harm as a result of USTR’s actions and it would inequitable to not modify the PI to include the Second

Withdrawal. 8 In sum, the court concludes that the PI should be modified in order to fulfill its intended purpose and to avoid inequity to Plaintiffs. The court finds that the Second Withdrawal is likely arbitrary and capricious and lacking a suffici ent basis and purpose in accordance with APA requirements because USTR did not address signi ficant comments from Plaintiffs and did not explain the basis for its change in policy between the June 2019 Exclusion and the Second

Withdrawal. The existence of the unpublished, internal Gerr ish Memo does not remedy these

deficiencies and these deficiencies are not harmless errors. Therefore, the court grants Plaintiffs’ cross-motion to modify the PI to include the Second Withdrawal. III. Plaintiffs’ Motion to Co mplete the Agency Record

Two weeks after the Government filed the administrative re cord, Plaintiffs filed a motion to complete the record. Pls.’ Mot. to Complete A. R. Plaintiffs claim that the record as submitted did not include key documents necessary for the court to review both the First Withdrawal and

8 This conclusion does not mean that the court has assumed the same defect from the First Withdrawal but reflects that Plaintiffs have independently shown that the Second Withdrawal would harm them in the same way as First Withdr awal, but for different re asons. “[N]either the plaintiff nor the court should be subjected to th e unnecessary burden of re -establishing what has once been decided.” Sys Fed’n N o. 91 v. Wright, 364 U.S. 642, 647 (1961).Court No. 19-00192 Page 40

Second Withdrawal. Id. at 5. Specifically, Plaintiffs request that the court order completion of the record as to four categories: (1) All documents, including (but not lim ited to) any interest ed party comments, agency memoranda, inter-agency consultations, and ex parte communications, related to the June 13, 2019 determinati on to exclude bifacial solar modules from the safeguard measure; (2) All documents, including (but not lim ited to) any interest ed party comments, agency memoranda, inter-agency consu ltations, and ex parte communications, related to USTR’s October 9, 2019 determin ation to withdraw the bifacial solar module exclusion; (3) All documents, including (but not lim ited to) any interest ed party comments, agency memoranda, inter-agency consu ltations, and ex parte communications, related to the issu ance of the January 27, 2020 noti ce regarding the procedures to reconsider the bifacial module exclusion; (4) Any other documents prepared by, submitted to, or otherwise possessed by or under the control of USTR pertaining to the bifacial module exclusion or its withdrawal, including (butnot limited to) documents related to any meetings, calls, or other communications that US TR had between February 2018 and the April Withdrawal, with members of the solar industry, congressional members or their staff, and/or members of the executive branch regarding the bifacial panel exclusion and subsequent withdrawals.

Id. at 2.

The Government and Defendant-Intervenors responded in opposition to this motion. The

Government claims that the record it submitted is entitled to a presumption of regularity and that the record submitted is complete. Def.’s Resp. to Mot. to Complete A.R. at 7. The Government also argues that USTR made the decision to i ssue the Second Withdrawal on the basis of “a clean slate” so that any documents before the agency related to its past decision s are irrelevant to the

record on the Second W ithdrawal. Id. The Defendant-Interveno rs make similar arguments and claim that “Plaintiffs’ motion will unnecessarily delay any resolution of the dispute.” Def.-Inters.’ Resp. to Mot. to Complete A.R. at 2.Court No. 19-00192 Page 41

In addressing Plaintiffs’ motion to complete the record, the court notes that Plaintiffs characterize their request as completing the recor d, while the Government ar gues that Plaintiffs seek to supplement an already complete record . The court applies different standards when deciding whether a record should be completed and when deciding whether a record should be supplemented. See, e.g., Giorgio Foods, Inc. v. United States, 35 CIT 297, 300, 755 F. Supp. 2d 1342, 1346 (2011) (“Supplementing the administrative record with outside information is somewhat distinct from supplementing the record ‘upon a showing that th e administrative record is not complete.’” (quoting Advanced Tech. Materials Co. v. United States, 34 CIT 598, 603 (2010))). While completing the record requires only that the moving party s how that the record filed is not complete, supplementing the record re quires the further burden of showing bad faith by the agency. Compare Overton Park, 401 U.S. at419–20 (noting that completion of the record is required where the produced record “clearly do [es] not constitute the whole record compiled by the agency”) (citations omitted) with Ammex, 23 CIT at 556 (noting that supplementation of the record is required upon a “strong showing of ba d faith or improper behavior” by the agency) (quotation omitted). See also JSW Steel, Slip Op. 20-111 at 15. Here, Plaintiffs moved the court to order the Government to complete the record because the record did not include all documents that were before USTR in making its decision on the First Withdrawal and Second Withdrawal. Pls.’ Mot. to Complete A.R. at 2. Plaintiffs made no allegations of bad fa ith on the part of the Government in filing the record. See id. Thus, the court decides the motion under the standard of completing the record. As the court explained in Giorgio Foods, the court assumes the record is complete where it has been certified by the agency. 35 CI T at 300, 755 F. Supp. 2d at 1346. “In a motion to complete the administrative record, a party must do more than simply allege that the record isCourt No. 19-00192 Page 42

incomplete. Rather, a party must provide the [c ]ourt with reasonable, non-speculative grounds to

believe that materials considered in the decisi on-making process are not included in the record.” Def. of Wildlife v. Dalton, 24 CIT 1116, 1119 ( 2000) (citations and quotations omitted). A complete record includes all material directly or indirectly considered by the agency, including evidence presented to the agency that is contra ry to its ultimate decisi on and not relied on by the agency. See Ammex, 23 CIT at 554–55, 62 F. Supp. 2d at 1155–56 (citations omitted). This is broader than those documents cited by and re lied upon by the agency, but also includes “all materials that might have influe nced the agency’s decision.” Amfac Resorts LLC v. U.S. Dep’t of Interior, 143 F. Supp. 2d 7, 12 (D.D.C. 2001) (quotation omitted); see also Thompson v. U.S. Dep’t of Labor, 885 F.3d 551, 555 (9th Cir. 1989) (“ The whole administrative record, therefore,

consists of all documents and ma terials directly or indirectlyconsidered by agency decisionmakers and includes evidence contrary to the agency’s position.”) (quotation omitted). Furthermore, because USTR here reconsidered its previous decision, the June 2019 Exclusion, USTR’s change in position must be explained in lig ht of the record on wh ich it made its past decision, even if its new decision is based on the same evidence that it previously considered. See, e.g., Encino Motorcars, 136 S. Ct. at 2122–23 (comparing record and history of original agency decision to that of the agency’s new decision) ; State Farm, 463 U.S. at 52–55 (comparing agency’s

rationale of rescission with its rationale for its original deci sion); F.C.C. v. Fox, 556 U.S. at 507– 08 (same). Thus, the parties may develop argume nts and the court may review the agency’s

reconsideration decision onl y by reviewing the record before the agency at the time of its original both its original decision and its reconsiderati on. Walter O. Boswell Mem’l Hosp. v. Heckler, 749 F.2d 788, 792 (D.C. Cir. 1984) (“To review less than the full administrative record might allow a party to withhold evidence unfavorable to its case, and so the APA requires review of the wholeCourt No. 19-00192 Page 43

record.”) (citations omitted). See also Giorgio Foods, 755 F. Supp. 2d at 1348 (“[W]hat the ITC directly consulted does not necessarily determine the administrative record. The records of the underlying investigations necessarily created the environment in which the decision was made by

the ITC and were hence in directly consulted.”). The court agrees with Plaintiffs that the record submitted by the Government on June 5, 2020 is incomplete. That record was limited to submissions to USTR by interested parties as a result of the January 2020 Notice, reports of the ITC, agency consultations, the Second Withdrawal, and the internal USTR memoranda. See A.R. (index to public administrative record). As Plaintiffs note, the record does not include an y documents before the agency at the time of the June 2019 Exclusion, “any evidence of inter-agency consultation regarding the exclusion requests, or even the [June 2019 Exclusion] determination.” Pls.’ Mot. to Complete A.R. at 8. Plaintiffs have rebutted the court’s presump tion that the record is complete by showing that the Government

failed to include documents that were both directly relied on by USTR and documents that were

before USTR at the time it made the Second W ithdrawal and the June 2 019 Exclusion, but that it did may not have relied on. 9 Therefore, the court grants Plaintiffs motion as to the first category and orders that the Government complete the record with documents related to the June 2019

Exclusion of bifacial solar modules. The court also grants Plaintiffs’ motion as to the third category covering documents related to the January 2020 Notice. As Plaintiffs state, “the [January 2020 Notice] described a number of

concerns that USTR had with the Exclusion . . . and those concerns grew from somewhere.” Pls.’

9 The court notes that the Government’s original filing of the Administrative Record did not include a certification of completeness by the agency. See A.R. However, the Government filed a certification in its response to Plaintiffs’ Motion and stated that its omission was inadvertent. Def.’s Resp. to Mot. to Compl. at Attach . 1, ECF No. 210-1 (Declar ation by Dax Terrill); Transcript of Oral Ar g. of Aug. 10, 2020 at 99–100.Court No. 19-00192 Page 44

Mot to Complete A.R. at 12. The court notes that the record filed by the Government does not include the January 2020 Notice as published in th e Federal Register. See A.R. The Government argued at oral argument that that document was provi ded to the court through litigation, Transcript of Oral Arg. of Aug. 10, 2020 at 103, but this omission does support Plaintiffs’ contention that the submitted record is incomplete. Documents related to the January 2020 Notice would further shed light on USTR’s decision to reconsider its June 2019 Exclusion decision by including documents that were directly or indirectly considered by agency decision-makers starting at the time they formally decided to reconsider their past de cision. See Thompson, 885 F.2d at 555. Therefore, the court grants Plaintiffs’ motion as to the thir d category and orders the Government to complete the record with all documents related to the January 2020 Notice. Further, Plaintiffs request the c ourt to order the Government to complete the record as to

the First Withdrawal and as to a broad fourth ca tegory of documents. Pls.’ Mot. to Complete A.R. at 2. The court denies Plaintiffs’ request as to documents related to the First Withdrawal because, with this decision, the court vaca tes the First Withdrawal on the merits as an unlawful agency rulemaking that was procedurallydeficient under the APA. Further, the court denies Plaintiffs request as to documents related to the fourth categ ory. Because the first and third categories suffice to produce the requisite record documents missing from the record, the court need not grant the Plaintiffs’ request which may encompass docum ents outside the court’s scope of review.

CONCLUSION The court vacates the First Withdrawal as an ag ency decision that should be set aside as unlawful because it did not comply with the AP A requirements as described in Invenergy I. The

court denies the Government’s motion to dissolve the PI because it does nothave jurisdiction to do so pending the Government’s appeal and becaus e the court instead modifies the PI. The courtCourt No. 19-00192 Page 45

grants Plaintiffs’ cross-motion to modify the PI to reflect the Second W ithdrawal and Plaintiffs’ challenge of that decision in their amended comp laints. The court also grants Plaintiffs’ motion to complete the agency record, in part, and deni es the motion as to the First Withdrawal and the fourth category of documents. The Pl aintiffs’ motion to stay is denied. The court notes that if presented with an adequate record and e xplanation of USTR’s action, the court could proceed, in accordance with well-established administrative law standards, to review USTR’s decision to withdraw it previ ously granted exclusion fr om safeguard duties on imported bifacial solar modules. However, various procedural missteps by USTR mean that the court cannot reach that point now. As the court has stated, The court acknowledges the Government and Defendant-Intervenors’ concern that domestic industries may face a threat of material injury due to USTR’s decision to exclude bifacial solar products from safe guard duties. 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 the cost of bifacial solar panels. Invenergy III, 450 F. Supp. 3d at 1365 (citations omitted). The court takes no position on the efficacy of safeguard duties in providing protectionto the domestic solar in dustry or of a decision to exclude products from those safeguard duties. Id. Once again, the court merely continues to require the Government to follow its own laws when it acts.

SO ORDERED. /s/ Gary S. Katzmann Gary S. Katzmann, Judge Dated: October 15, 2020 New York, New York