Case: 22-1392    Document: 73    Page: 1   Filed: 11/13/2023




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

   SOLAR ENERGY INDUSTRIES ASSOCIATION,
      NEXTERA ENERGY, INC., INVENERGY
   RENEWABLES LLC, EDF RENEWABLES, INC.,
              Plaintiffs-Appellees

                            v.

   UNITED STATES, UNITED STATES CUSTOMS
   AND BORDER PROTECTION, TROY MILLER,
   ACTING COMMISSIONER FOR U.S. CUSTOMS
         AND BORDER PROTECTION,
              Defendants-Appellants
             ______________________

                        2022-1392
                  ______________________

    Appeal from the United States Court of International
 Trade in No. 1:20-cv-03941-GSK, Judge Gary S.
 Katzmann.
                ______________________

                Decided: November 13, 2023
                  ______________________

     MATTHEW R. NICELY, Akin Gump Strauss Hauer &
 Feld LLP, Washington, DC, argued for plaintiffs-appellees
 Solar Energy Industries Association, NextEra Energy, Inc.
 Also represented by JULIA K. EPPARD, DEVIN S. SIKES,
 JAMES EDWARD TYSSE, DANIEL MARTIN WITKOWSKI.

    AMANDA SHAFER BERMAN, Crowell & Moring, LLP,
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 2               SOLAR ENERGY INDUSTRIES ASSOCIATION v. US




 Washington, DC, argued for plaintiff-appellee Invenergy
 Renewables LLC. Also represented by JOHN BOWERS
 BREW, LARRY EISENSTAT, ROBERT L. LAFRANKIE; FRANCES
 PIERSON HADFIELD, New York, NY.

      CHRISTINE STREATFEILD, Baker & McKenzie LLP,
 Washington, DC, for plaintiff-appellee EDF Renewables,
 Inc.

     JOSHUA E. KURLAND, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, argued for all defendants-appellants. Defend-
 ants-appellants United States, United States Customs and
 Border Protection, Troy Miller also represented by BRIAN
 M. BOYNTON, TARA K. HOGAN, PATRICIA M. MCCARTHY. De-
 fendant-appellant United States also represented by
 MICHAEL THOMAS GAGAIN, Office of the General Counsel,
 Office of the United States Trade Representative, Wash-
 ington, DC.

     JONATHAN STOEL, Hogan Lovells US LLP, Washington,
 DC, for amici curiae Chamber of Commerce of the United
 States of America, American Clean Power Association.
 Also represented by MICHAEL JACOBSON, MOLLY NEWELL;
 KATHERINE BOOTH WELLINGTON, Boston, MA. Amicus cu-
 riae Chamber of Commerce of the United States of America
 also represented by TARA S. MORRISSEY, United States
 Chamber Litigation Center, Washington, DC.
                  ______________________

     Before LOURIE, TARANTO, and STARK, Circuit Judges.
 STARK, Circuit Judge.
     In 2018, the President adopted certain safeguard
 measures to protect the domestic solar panel industry. In
 particular, the President issued Proclamation 9693, which
 imposed duties on imports of solar panels into the United
 States. See Proclamation 9693: To Facilitate Positive
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 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US                   3



 Adjustment to Competition from Imports of Certain Crys-
 talline Silicon Photovoltaic Cells (Whether or Not Partially
 or Fully Assembled into Other Products) and for Other Pur-
 poses, 

 (Jan. 23, 2018). The duties of Proc-
 lamation 9693 began at 30% and were scheduled to
 decrease each year to 25%, 20%, and then, in their final,
 fourth year, 15%. See 

. Importers of a certain
 type of solar panel – called bifacial solar modules, which
 “consist of cells that convert sunlight into electricity on
 both the front and back of the cells,” J.A. 4 – petitioned the
 United States Trade Representative (“USTR”) for an exclu-
 sion, asking that bifacial solar panels not be subjected to
 the duties. The USTR granted the exclusion, but then
 quickly reversed course, with the consequence that the du-
 ties of Proclamation 9693 remained scheduled to be im-
 posed on bifacial panels. Following litigation in the Court
 of International Trade (“trade court”), and additional ac-
 tions by the USTR, bifacial solar panels were again ex-
 cluded from the duties.
      In October 2020, the President issued Proclamation
 10101, “modifying” Proclamation 9693 to withdraw the ex-
 clusion of bifacial solar panels from the scheduled duties,
 and also to increase the fourth-year duty rate from 15% to
 18%. See Proclamation 10101: To Further Facilitate Posi-
 tive Adjustment to Competition from Imports of Certain
 Crystalline Silicon Photovoltaic Cells (Whether or Not Par-
 tially or Fully Assembled into Other Products), 

 (Oct. 16, 2020). In response to Proclamation 10101,
 importers of bifacial solar panels brought suit against the
 United States in the trade court on the grounds that the
 proclamation exceeded the power of the President. Their
 principal contention was that the statute authorizing the
 President to “modify” Proclamation 9693 only allowed him
 to make previously adopted safeguard measures more
 trade-liberalizing, but eliminating the exclusion of bifacial
 panels and raising the fourth-year duty were trade-restric-
 tive. The suing parties further argued that even if the
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 4               SOLAR ENERGY INDUSTRIES ASSOCIATION v. US




 President had the authority to “modify” safeguards in a
 trade-restrictive direction, he failed to follow appropriate
 procedures in doing so.
     The trade court agreed with the importers that the
 statutory authority to “modify” a safeguard is limited to
 trade-liberalizing changes. While the trade court rejected
 the importers’ procedural challenges, it nonetheless set
 aside Proclamation 10101 for exceeding the President’s au-
 thority. The government now appeals from the trade
 court’s judgment in favor of the importers.
      We conclude that the President’s interpretation of the
 applicable statute, which allows him to “modify” an exist-
 ing safeguard, is not a clear misconstruction. That is, the
 President’s view that a “modification” may include a
 change in a trade-restricting direction, and is not limited
 to trade-liberalizing changes, is not unreasonable. We fur-
 ther determine that, in adopting Proclamation 10101, the
 President did not commit any significant procedural viola-
 tion of the Trade Act. Accordingly, we reverse the judg-
 ment of the trade court.
                              I
                              A
     Section 201 of the Trade Act of 1974, codified at 

, provides the President of the United States
 with the power to impose “safeguards” (also referred to as
 “safeguard measures”) that protect domestic industries
 from serious injury caused by imports. Statutory Section
 2251 broadly directs the President to “take all appropriate
 and feasible action within his power which the President
 determines will facilitate efforts by the domestic industry
 to make a positive adjustment to import competition and
 provide greater economic and social benefits than costs.”
 

(a).
     Imposition of a new safeguard is governed by 

 and 2253, which set out a process that typically
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 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US                   5



 includes: (i) a petition from the domestic industry filed with
 the International Trade Commission (“Commission”), set-
 ting out the purposes for which the safeguard is sought,
 “which may include facilitating the orderly transfer of re-
 sources to more productive pursuits, enhancing competi-
 tiveness, or other means of adjustment to new conditions
 of competition”; (ii) an investigation and determination by
 the Commission as to “whether an article is being imported
 into the United States in such increased quantities as to be
 a substantial cause of serious injury, or the threat thereof,
 to the domestic industry producing an article like or di-
 rectly competitive with the imported article”; (iii) the sub-
 mission of a report by the Commission to the President,
 which may include a recommendation of presidential ac-
 tion to “address the serious injury, or threat thereof, to the
 domestic industry,” such as the imposition of or increase in
 duty on the imported article or a modification or imposition
 of a quantitative restriction on the importation of the arti-
 cle into the United States; and (iv) a decision by the Presi-
 dent “to take all appropriate and feasible action” that will
 provide “greater economic and social benefits than costs”
 and will assist domestic industry. Generally, safeguards
 adopted pursuant to these procedures may not be in effect
 for longer than four years without an additional petition
 from the domestic industry. See 

 §§ 2253(e)(1)(A)-(B),
 2254(c). Certain types of safeguards, including imposition
 of duties lasting more than one year, must be “phased down
 at regular intervals during the period in which the action
 is in effect.” Id. § 2253(e)(5).
     Once a particular safeguard is in place, Section 2254
 governs efforts to change the existing measure. Section
 2254(a)(1) requires, among other things, that the Commis-
 sion “monitor developments with respect to the domestic
 industry, including the progress and specific efforts made
 by workers and firms in the domestic industry to make a
 positive adjustment to import competition.”             Id.
 § 2254(a)(1). If a safeguard is imposed for longer than
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 6                 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US




 three years, the Commission must, no later than the mid-
 point of the period for which it is adopted, “submit a report
 [“Commission Report”] on the results of the monitoring . . .
 to the President and to the Congress” Id. § 2254(a)(2). Af-
 ter receiving the Commission Report, the President is em-
 powered to take certain actions with respect to the
 safeguard, with different statutory provisions applying de-
 pending on whether the domestic industry has or has not
 made a positive adjustment to import competition.
     Specifically, 

(b), entitled “Reduction,
 modification, and termination of action,” provides that
 “[a]ction taken under section 2253 of this title,” i.e., a safe-
 guard, “may be reduced, modified, or terminated by the
 President,” after receiving the Commission Report,
        if the President . . .
        (A) . . . determines, on the basis that either –
           (i) the domestic industry has not made
           adequate efforts to make a positive ad-
           justment to import competition, or
           (ii) the effectiveness of the action taken
           under section 2253 of this title has been
           impaired by changed economic circum-
           stances,
        that changed circumstances warrant such re-
        duction, or termination; or
        (B) determines, after a majority of the rep-
        resentatives of the domestic industry submits
        to the President a petition requesting such re-
        duction, modification, or termination on such
        basis, that the domestic industry has made a
        positive adjustment to import competition.
 

 § 2254(b)(1) (emphasis added). While subparagraph
 (b)(1)(B) permits the President to “reduc[e], modif[y], or
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 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US                   7



 terminat[e]” a safeguard when the domestic industry has
 made a positive adjustment to import competition, subpar-
 agraph A more narrowly describes the President’s power as
 extending only to a “reduction, or termination” (and not
 also a “modification”) of an existing safeguard where do-
 mestic industry has not made such an adjustment.
                               B
     On January 23, 2018, President Trump issued Procla-
 mation 9693, which imposed duties on imports of certain
 quantities of Crystalline Silicon Photovoltaic (CSPV) solar
 panels for a period of four years, beginning at 30% ad val-
 orem in the safeguard’s first year and phasing down to 25%,
 20%, and 15% in the ensuing years. Proclamation 9693, 83
 Fed. Reg. at 3548-49. Proclamation 9693 further delegated
 to the USTR authority to grant “exclusion of a particular
 product from the safeguard measure.” Id. at 3543. Acting
 under this authority, in June 2019 the USTR granted an
 exclusion for solar panels consisting of bifacial solar cells.
 See Exclusion of Particular Products From the Solar Prod-
 ucts Safeguard Measure, 

, 27685 (June
 13, 2019). This exclusion had the effect of not imposing the
 new tariffs on bifacial solar panels.
     However, just months later, in October 2019, the USTR
 withdrew the exclusion, re-imposing the duties on these
 same bifacial products. See Withdrawal of Bifacial Solar
 Panels Exclusion to the Solar Products Safeguard Measure,
 

 (Oct. 9, 2019). Litigation followed.
 Cases (which are not directly at issue here) brought by con-
 sumers, purchasers, and importers of bifacial solar panels
 resulted in the October 2019 withdrawal of the exclusion
 never becoming effective. See Invenergy Renewables LLC
 v. United States, 

 (Ct. Int’l Trade
 2019). That meant that bifacial solar panels remained ex-
 empted from imposition of the new duties. Thereafter, in
 April 2020, the USTR again withdrew the exclusion, seek-
 ing thereby to impose the duties on bifacial products. See
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 8                SOLAR ENERGY INDUSTRIES ASSOCIATION v. US




 Determination on the Exclusion of Bifacial Solar Panels
 from the Safeguard Measure on Solar Product, 

 (Apr. 17, 2020). After more litigation, the trade
 court enjoined the April 2020 withdrawal. See Invenergy
 Renewables LLC v. United States, 

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

 (Ct. Int’l Trade 2020).
      In the meantime, the Commission completed its statu-
 torily required midpoint review of the safeguards imposed
 by Proclamation 9693 and, in February 2020, provided the
 Commission Report to the President and Congress. See
 Crystalline Silicon Photovoltaic Cells, Whether or Not Par-
 tially or Fully Assembled Into Other Products: Monitoring
 Developments in the Domestic Industry, Inv. No. TA-201-
 075, USITC Pub. 5021, at 2 (Feb. 2020). In March 2020,
 pursuant to 

(a)(4) and in response to the
 USTR’s request, the Commission additionally published a
 report containing its advice “regarding the probable eco-
 nomic effect on the domestic crystalline silicon photovoltaic
 (CSPV) cell and module manufacturing industry of modify-
 ing the safeguard measure on CSPV products.” Crystalline
 Silicon Photovoltaic Cells, Whether or Not Partially or
 Fully Assembled Into Other Products: Advice on the Proba-
 ble Economic Effect of Certain Modifications to the Safe-
 guard Measure, Inv. No. TA-201-075, USITC Pub. 5032, at
 ES-1 (Mar. 2020). That report contained the Commission’s
 determination that the “exclusion for imports of bifacial
 modules . . . is likely to have significant effects on prices
 and trade in both modules and cells,” having the effect of
 limiting the positive impact of the safeguard adopted in
 Proclamation 9693. 

 at ES-4. In the wake of these two
 reports, the President, through the USTR, received a peti-
 tion, consisting of three letters, 1 from representatives of a



     1  The trade court held these “letters submitted to the
 Trade Representative are, taken collectively, sufficient to
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 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US                  9



 majority of the bifacial solar panel domestic industry re-
 questing, among other things, that the President (1) with-
 draw the bifacial exclusion and (2) slow down the rate of
 reduction of the safeguard duty for the remainder of the
 scheduled term.
     On October 16, 2020, the President issued Proclama-
 tion 10101. See Proclamation 10101, 85 Fed. Reg. at 65640.
 As pertinent here, Proclamation 10101 modified safe-
 guards that had been implemented in Proclamation 9693,
 including by withdrawing the exclusion of bifacial solar
 panels, thereby again re-imposing the duties on these pan-
 els. Proclamation 10101 further provided that the fourth-
 year duty rate on CSPV modules, including bifacial solar
 panels, would be increased from 15% to 18%. See 85 Fed.
 Reg. at 65540-42. In particular, Proclamation 10101 pro-
 vided that:
    [T]he domestic industry has begun to make positive
    adjustment to import competition, shown by the in-
    creases in domestic module production capacity,
    production, and market share. . . .
    [T]he exclusion of bifacial panels from application
    of the safeguard tariff has impaired and is likely to
    continue to impair the effectiveness of the action I
    proclaimed in Proclamation 9693 in light of the in-
    creased imports of competing products such exclu-
    sion entails, and that it is necessary to revoke that
    exclusion and to apply the safeguard tariff to bifa-
    cial panels; . . .
    [T]he exclusion of bifacial panels from application
    of the safeguard tariffs has impaired the effective-
    ness of the 4-year action I proclaimed in Proclama-
    tion 9693, and that to achieve the full remedial


 constitute a petition to the President.” J.A. 13. Appellees
 do not challenge this finding on appeal.
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 10               SOLAR ENERGY INDUSTRIES ASSOCIATION v. US




      effect envisaged for that action, it is necessary to
      adjust the duty rate of the safeguard tariff for the
      fourth year of the safeguard measure to 18 percent.
 Proclamation 10101, 85 Fed. Reg. at 65640. The appeal
 now before us requires us to determine whether the Presi-
 dent had authority to make these modifications to Procla-
 mation 9693 by adoption of Proclamation 10101. 2
                               C
     On December 29, 2020, Plaintiffs-Appellees – Solar En-
 ergy Industries Associates (“SEIA”) as well as Nextera En-
 ergy Inc., Invenergy Renewables LLC, and EDF
 Renewables, Inc. – filed suit at the trade court challenging
 Proclamation 10101’s modifications to the safeguards im-
 posed by Proclamation 9693. See Solar Energy Indus. Ass’n
 v. United States, 

 (Ct. Int’l Trade 2021)
 (“SEIA Decision”). Defendants-Appellants – the United
 States, the United States Customs and Border Protection
 (“CBP”), and Christopher Magnus in his capacity as Com-
 missioner of CBP (collectively, the “government”) – moved
 to dismiss, and Appellees cross-moved for summary judg-
 ment. The trade court granted summary judgment to Ap-
 pellees and set aside the modifications contained in
 Proclamation 10101.



      2  In February 2022, President Biden, acting pursu-
 ant to his authority under Section 2253, extended the safe-
 guard measure and excluded bifacial panels from the
 extended measure. See Proclamation 10339, To Continue
 Facilitating Positive Adjustment to Competition From Im-
 ports of Certain Crystalline Silicon Photovoltaic Cells
 (Whether or Not Partially or Fully Assembled Into Other
 Products), 

 (Feb. 9, 2022). Thus, as the
 parties agree, this appeal only affects bifacial panels that
 were imported into the U.S. after October 25, 2020 and be-
 fore February 7, 2022.
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 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US                 11



     In reaching its decision, the trade court concluded that
 “while Proclamation 10101 complied with the procedural
 requirements of the safeguard statute, it nevertheless
 clearly misconstrued the reach of Section [2254](b)(1)(B) of
 the Trade Act, and thus constituted an action outside the
 President’s delegated authority.” 3 J.A. 34. More specifi-
 cally, the trade court reasoned that Section 2254(b)(1)(B)
 “permits only trade-liberalizing modifications to existing
 safeguard measures,” yet “Proclamation 10101’s with-
 drawal of the exclusion of bifacial solar panels and increase
 of the safeguard duties on CSPV modules” were trade-re-
 strictive. J.A. 6. Therefore, the trade court held that the
 modifications of Proclamation 10101 were based on a clear
 misconstruction of the statute. See J.A. 6, 28. The trade
 court was persuaded that, as Appellees argued, Section
 2254(b)(1)(B) “was intended to provide an escape hatch”
 from previously imposed safeguards “where domestic in-
 dustry has adequately adapted to import competition.”
 J.A. 32. It was not, in the court’s view, Congress’s intent
 to allow for a safeguard to be “modified” so as to make it
 more restrictive of free trade when domestic industry had
 already adjusted to such competition. See 

 Hence, the



     3    The trade court found the President acted outside
 his delegated authority solely because it found the Presi-
 dent’s interpretation of Section 2254(b)(1)(B) was a clear
 misconstruction. See J.A. 33. There was no separate anal-
 ysis of the “acting outside of authority” issue. Nor do the
 parties identify any other basis, besides the construction of
 Section 2254(b)(1)(B) and its associated procedural re-
 quirements, on which Proclamation 10101 could be deemed
 an action taken outside of the President’s delegated au-
 thority. Thus, our conclusion that the President did not
 clearly misconstrue his statutory authority leads to the
 conclusion that the President also did not act outside of his
 delegated authority.
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 12              SOLAR ENERGY INDUSTRIES ASSOCIATION v. US




 trade court set aside Proclamation 10101 and enjoined the
 government from enforcing it. See J.A. 6.
      The government timely appealed. Before us, the gov-
 ernment challenges the trade court’s holding that the Pres-
 ident clearly misconstrued Section 2254(b)(1)(B) when he
 interpreted it as permitting trade-restrictive modifications
 to safeguard measures. The government also disputes the
 trade court’s conclusion that Proclamation 10101’s modifi-
 cations were actually trade-restrictive. Appellees ask us to
 affirm the trade court’s determination that the President’s
 interpretation of “modify” in Section 2254(b)(1)(B) as per-
 mitting trade-restrictive changes is a clear misconstruction
 of the statute. 4 Appellees also propose alternative grounds
 for affirmance, namely that the President failed to comply
 with the procedural requirements of the safeguard statute.
     We conclude that the President did not clearly miscon-
 strue Section 2254(b)(1)(B) when he interpreted it as per-
 mitting trade-restrictive modifications.      We further
 conclude that, in issuing Proclamation 10101, the Presi-
 dent did not commit any significant procedural violation of
 the Trade Act. Accordingly, we reverse and remand for the
 trade court to enter judgment for the government.
                              II
     The trade court had jurisdiction pursuant to 

(i).    We have jurisdiction under 

(a)(5).
    “We review the Court of International Trade’s grant of
 summary judgment de novo, including by deciding de novo



      4  Appellees SEIA and Nextera Energy, Inc. filed a
 joint brief (ECF No. 35) which we refer to as the “SEIA
 Brief” or “SEIA Br.” Appellees Invenergy Renewables LLC
 and EDF Renewables, Inc. filed a separate brief (ECF No.
 34) which we refer to as the “EDF Brief” or “EDF Br.”
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 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US                   13



 the proper interpretation of governing statutes and regula-
 tions.” Shinyei Corp. of Am. v. United States, 

 (Fed. Cir. 2008). In the absence of any genuine
 dispute of facts, we apply de novo review to the question of
 whether statutory prerequisites for presidential action un-
 der the safeguard statute were satisfied. See Corus Grp.
 PLC v. Int’l Trade Comm’n, 

, 1359-61 (Fed.
 Cir. 2003). “Although we apply a de novo standard of re-
 view, we give great weight to the informed opinion of the
 Court of International Trade.” Aspects Furniture Int’l, Inc.
 v. United States, 

, 1369 (Fed. Cir. 2022).
 Summary judgment is appropriate “if the movant shows
 that there is no genuine dispute as to any material fact and
 the movant is entitled to judgment as a matter of law.”
 U.S. CIT R. 56(a).
      Notwithstanding the de novo standard we generally
 apply to review of grants of summary judgment, “[i]n inter-
 national trade controversies of th[e] highly discretionary
 kind” we confront today, which “involv[e] the President and
 foreign affairs,” this court has a “very limited role . . . .”
 Maple Leaf Fish Co. v. United States, 

 (Fed.
 Cir. 1985). We may only set aside presidential action taken
 pursuant to statutory Sections 2251-53 of the Trade Act if
 it involves “a clear misconstruction of the governing stat-
 ute, a significant procedural violation, or action outside
 delegated authority.” Id.; see also USP Holdings, Inc. v.
 United States, 

, 1366 n.3 (Fed. Cir. 2022).
 “[T]he President’s findings of fact and the motivations for
 his action are not subject to review.” Maple Leaf, 

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

 (Fed. Cir. 2018).
                               III
     The trade court granted summary judgment to Appel-
 lees based on its determination that the President clearly
 misconstrued Section 2254(b)(1)(B) by interpreting it as
 permitting trade-restricting modifications. On appeal, the
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 14               SOLAR ENERGY INDUSTRIES ASSOCIATION v. US




 government challenges this conclusion on two grounds.
 First, the government contends that “[n]othing in the safe-
 guard statute limits the President’s authority under sec-
 tion [2254(b)(1)(B)] only to making modifications that
 liberalize trade.” Opening Br. at 26. Second, the govern-
 ment argues that even if Section 2254(b)(1)(B) does not ex-
 tend to trade-restricting modifications, the modifications
 that Proclamation 10101 makes to Proclamation 9693 do
 not “increase” restrictions and, hence, are permitted by the
 statute. We agree with the government’s first contention
 and find it unnecessary to address the second.
                              A
      It is important to stress at the outset that our review
 of Proclamation 10101 is limited to whether the President
 clearly misconstrued Section 2254(b)(1)(B). Because presi-
 dential action to impose a safeguard measure, as well as
 the decision to modify such a measure, involves presiden-
 tial action in the context of foreign affairs, our review is
 “very limited.” Maple Leaf, 

. We are not
 called upon to decide whether the government’s interpreta-
 tion of the statute is correct or how we would have con-
 strued the statute as an original matter. Nor do we
 evaluate the relative merits of the parties’ competing inter-
 pretations. Rather, our sole inquiry is whether the Presi-
 dent’s interpretation, that he is permitted to make trade-
 restricting modifications and not just trade-liberalizing
 ones, is a clear misconstruction of the statute. Applying
 this standard of review, we hold the President did not
 clearly misconstrue Section 2254(b)(1)(B).
     Our review “begins with the language of the statute”
 itself. Hughes Aircraft Co. v. Jacobson, 

 (1999) (internal quotation marks omitted); see also PDS
 Consultants, Inc. v. United States, 

 (Fed. Cir. 2018). Section 2254(b)(1)(B) provides that safe-
 guards previously adopted under Section 2253 “may be re-
 duced, modified, or terminated” by the President. The
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 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US                  15



 statute does not expressly indicate whether “modify” in-
 cludes trade-restrictive changes or is limited to trade-liber-
 alizing alterations. We view this statutory silence as
 favoring the government’s broader view, as the statute
 simply does not contain the narrowing limitation the trade
 court read into it. See generally Jama v. Immigr. & Cus-
 toms Enf’t, 

 (2005) (“We do not lightly as-
 sume that Congress has omitted from its adopted text
 requirements that it nonetheless intends to apply . . . .”). 5
      Ordinarily, Congress uses words consistent with their
 well-understood meaning. See Perrin v. United States, 

 (1979) (“A fundamental canon of statutory con-
 struction is that, unless otherwise defined, words will be
 interpreted as taking their ordinary, contemporary, com-
 mon meaning.”). Here, both sides find support for their in-
 terpretations of “modify” in dictionary definitions.
 Appellees direct us to a definition of “modify” as “to make
 ‘less extreme.’” SEIA Br. at 17 (quoting J.A. 30). The gov-
 ernment, by contrast, points us to a dictionary definition of
 “modify” as “making of a limited change in something.”
 Opening Br. at 24 (citing J.A. 30). Other courts, including
 the Supreme Court, have applied the government’s non-



     5    By contrast, an earlier, unenacted version of the
 legislation that ultimately became Section 2254(b)(1)(B)
 would have expressly restricted the President’s authority,
 upon receiving the Commission Report, as being to “reduce,
 modify (but not increase) or terminate any action.” H.R.
 Conf. Rep. 100-576, at 687, reprinted in 1988 USCCAN
 1547, 1720 (emphasis added). The parenthetical prohibit-
 ing trade-restrictive modifications was deleted during the
 legislative process. Generally, “[w]here Congress includes
 limiting language in an earlier version of a bill but deletes
 it prior to enactment, it may be presumed that the limita-
 tion was not intended.” Russello v. United States, 

 (1983).
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 16               SOLAR ENERGY INDUSTRIES ASSOCIATION v. US




 directionally restricted definition of “modify” in other con-
 texts. See MCI Telecomm. Corp. v. AT&T Co., 

 (1994) (collecting definitions and noting that
 “modify” typically connotes moderate change without indi-
 cating which direction such change must take). Appellees
 concede that the government’s definition is a correct one
 but then attempt to persuade us that their preferred defi-
 nition is better supported by the broader structure and pur-
 pose of the safeguard statute. See SEIA Br. at 17-18
 (“‘[M]odify’ can also mean ‘to change moderately or in mi-
 nor fashion.’”). With our review restricted to whether the
 President’s interpretation of “modify” is a clear miscon-
 struction, we view the government’s dictionary support,
 other courts’ precedents, and Appellees’ concession as
 strong indicators that Appellees have failed to show the
 President’s interpretation of “modification” is a clear mis-
 construction.
      Appellees emphasize that the meaning of “modify” in
 Section 2254(b)(1)(B) can only be properly understood in
 the context of “[t]he broader structure and stated purpose
 of the statute.” SEIA Br. at 18-19, 26. While we agree that
 structure and purpose should be taken into account, here
 these considerations only solidify our conclusion that Sec-
 tion 2254(b)(1)(B) was not clearly misconstrued to permit
 trade-restricting modifications to existing safeguards.
      First, Section 2251 provides that the safeguard statute
 has a broad remedial purpose, directing the President to
 “take all appropriate and feasible action within his power”
 to meet the statute’s objectives and provide relief to domes-
 tic industry. 

 (emphasis added). This ex-
 pansive directive supports the view that the President is
 empowered to make modifications as necessary to provide
 continued relief to domestic industry, regardless of
 whether that modification is in the direction of trade-re-
 striction or trade-liberalization. Certainly, there is no sug-
 gestion in Section 2251 that if the President determines a
 slightly more restrictive safeguard is necessary, he is,
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 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US                 17



 nevertheless, permitted only to adopt a trade-liberalizing
 modification.
     Second, the Trade Act has its own general definition of
 “modification.” It provides: “[t]he term ‘modification’, as
 applied to any duty or other import restriction, includes the
 elimination of any duty or other import restriction.” 

 § 2481(6). Plainly, this is an open-ended definition and
 does not exclude anything, including further restrictions.
 Nor does it even suggest that assessment of whether a
 change qualifies as a “modification” is based to any extent
 on the direction of the change (i.e., trade-liberalizing or -
 restricting).
      Other provisions of the Trade Act are similarly sup-
 portive of the government’s interpretation.           Section
 2254(b)(3), for example, provides that the President may
 “modify” a safeguard to bring it into conformity with a de-
 cision of the World Trade Organization (“WTO”), which
 could require a trade-liberalizing or trade-restricting mod-
 ification, depending on the relative relationship between
 an existing U.S. safeguard and a WTO determination. See
 id. § 2254(b)(3). Similarly, Sections 2252(e)(2)(C) and
 2253(a)(3)(C) authorize the Commission to recommend,
 and the President to impose, “modification . . . of any quan-
 titative restriction on importation,” modifications which
 Appellees do not dispute may include changes in a more
 trade-restrictive direction.
      Because the Trade Act clearly uses “modify” and “mod-
 ification” in ways that permit trade-restricting changes,
 Appellees next insist that “Congress clearly did not give the
 word ‘modification’ the same connotation throughout the
 Trade Act.” SEIA Br. at 32. We are not persuaded. “[A]
 term appearing in several places in a statutory text is gen-
 erally read the same way each time it appears.” Ratzlaf v.
 United States, 

 (1994). Appellees insist
 that Section 2254(b)(3)’s inclusion of the phrase “notwith-
 standing paragraph (1)” signifies that Section 2254(b)(1)’s
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 18              SOLAR ENERGY INDUSTRIES ASSOCIATION v. US




 modification power is different from that power as deline-
 ated in Section 2254(b)(3). But we agree with the govern-
 ment that “[n]otwithstanding paragraph (1)” means that
 modifications under Section 2254(b)(3) may be accom-
 plished without having to fulfill the procedural require-
 ments of Section 2254(b)(1) (e.g., receipt of the Commission
 Report or a domestic industry petition). See Reply Br. at
 10.
     Appellees, echoing the trade court, further contend
 that permitting the President to make trade-restrictive
 modifications pursuant to Section 2254(b)(3) creates a loop-
 hole through which the President can bypass the proce-
 dural requirements Section 2253 establishes for adopting a
 safeguard measure in the first place. See SEIA Br. at 25;
 J.A. 32. We disagree. Even under the government’s read-
 ing of Section 2254(b)(1)(B), the President’s modification
 power is far from unbounded. For instance, Section
 2253(e)(5) requires duties to be “phased down at regular
 intervals,” ensuring that any duty rate modification cannot
 exceed the highest rate imposed by the original safeguard
 measure. Thus, here, because the maximum tariff rate im-
 posed by Proclamation 9693 was 30% – a measure adopted
 only after the President followed all of the procedures set
 out in Section 2253 – the President could not, through his
 modification power under Section 2254, impose a tariff
 greater than 30%. Additionally, the President may not
 modify a safeguard pursuant to Section 2254 any time he
 wishes; instead, he must wait until after receiving the
 Commission Report as well as a petition from the majority
 of domestic industry (which may not ever be forthcoming). 6




      6  As we explain below, however, the President’s
 power is not limited to making the modifications that are
 advocated by the Commission Report and requested by the
 petition. Still, the receipt of the Commission Report and of
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 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US                  19



 Furthermore, because the power to “modify” a safeguard is
 included only in subparagraph (b)(1)(B), and not also in
 (b)(1)(A), the President may only make a modification after
 determining that domestic industry is making a positive
 adjustment to import competition. See infra at pp. 21, 23-
 26. While Congress is free to create a “loophole” if it
 wishes, here we think it has, instead, cabined the Presi-
 dent’s modification authority – just not with the further
 constraint of limiting modifications to only trade-liberaliz-
 ing changes.
     As yet another argument, Appellees contend that “[t]he
 total lack of historical usage” of Section 2254(b)(1)(B) “to
 restrict trade is further evidence weighing in favor of the
 trade court’s interpretation.” SEIA Br. at 26. Even assum-
 ing historical practice, or the lack of it, could transform an
 otherwise-reasonable reading of a statute into a clear mis-
 construction, the government has directed us to one in-
 stance in which it appears President Clinton acted
 pursuant to Section 2254(b)(1) to take trade-restrictive ac-
 tion. See Opening Br. at 39-40 & n.8 (citing Proclamation
 7314: To Modify the Quantitative Limitations Applicable to
 Imports of Wheat Gluten, 

 (May 26,
 2000)); Reply Br. at 17-18. Hence, there does appear to be
 historical support for President Trump’s construction of
 presidential authority under Section 2254(b)(1)(B).
      Finally, Appellees point to the distinction between sub-
 section (b)(1)(A), which applies where “domestic industry
 has not made adequate efforts to” adjust to import compe-
 tition, and subsection (b)(1)(B), which applies where “do-
 mestic industry has made a positive adjustment to import
 competition.” SEIA Br. at 20-21 (emphasis added). In the
 former circumstance, where domestic industry has not re-
 sponded positively, Section 2254(b)(1)(A) provides the


 a domestic industry petition are the prerequisites to a Pres-
 idential modification of a safeguard.
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 20               SOLAR ENERGY INDUSTRIES ASSOCIATION v. US




 President authority only to “reduce” or “terminate” the
 safeguard while in the latter scenario, where domestic in-
 dustry “has made a positive adjustment, Section
 2254(b)(1)(B) more broadly provides the President author-
 ity to “reduce, modify, or terminate” a safeguard. Appellees
 insist it would be backwards for Congress to permit the
 President to “modify” trade restrictions to become more re-
 strictive where domestic industry has positively adjusted
 to competition while depriving the President of such trade-
 restricting power where domestic industry has not. See,
 e.g., SEIA Br. at 18 (“It would make no sense for Congress
 to authorize further trade restrictions after the domestic
 industry already ‘has made’ a positive adjustment . . . .”).
 We side with the government on this point, agreeing with
 it that “[t]his distinction logically suggests that Congress
 intended to give the President greater flexibility to take ac-
 tion when progress is being made, to protect and ensure the
 continuation of that progress.” Opening Br. at 34. In sum,
 we find this argument of Appellees no more persuasive
 than their many other contentions.
     For all of these reasons, we conclude it was not a clear
 misconstruction for the President to interpret his authority
 under Section 2254(b)(1)(B) as permitting him to adopt
 trade-restrictive modifications, as well as trade-liberaliz-
 ing modifications.
                               B
      The government additionally argues that “even if ‘mod-
 ification’ in Section 2254(b)(1)(B) were construed as prohib-
 iting the President from implementing an ‘increase’ to the
 safeguard measure, Proclamation 10101 should still be
 sustained as lawful because the modifications at issue are
 neutral in relation to the original safeguard measure.”
 Opening Br. at 20. In the government’s view, all that Proc-
 lamation 10101 accomplished was “to restore application of
 the safeguard measure to bifacial panels and to slow the
 rate at which the measured phased down in its fourth
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 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US                 21



 year,” neither of which were trade-restricting “increases”
 in measures imposed on imports. Id. at 2. Because we find
 it was not a clear misconstruction to interpret Section
 2254(b)(1)(B) as permitting trade-restrictive modifications
 to safeguard measures, we need not, and do not, reach this
 issue.
                              IV
      Our siding with the government on whether the Presi-
 dent’s statutory interpretation was a clear misconstruction
 is not enough to resolve this appeal. Appellees offer, as al-
 ternative grounds for affirmance, the arguments they pre-
 sented to the trade court for a finding that, in adopting
 Proclamation 10101, the President failed to comply with
 the procedural requirements of the safeguard statute. In
 particular, Appellees renew their contentions that: (1) the
 petition leading to Proclamation 10101 was inadequate to
 meet the “on such basis” requirement of Section
 2254(b)(1)(B); (2) the President’s finding that the domestic
 industry “has begun to make” a positive adjustment to im-
 port competition does not meet the statutory requirement
 that domestic industry “has made” such adjustment; and
 (3) the President failed to meet his obligation to weigh the
 economic and social costs and benefits of his alterations to
 the safeguard tariffs imposed by Proclamation 9693 before
 issuing Proclamation 10101. SEIA Br. at 4, 20 n.1 (adopt-
 ing arguments from EDF Brief); EDF Br. at 15-16. The
 trade court rejected each of these positions and we do so as
 well.
                              A
     Appellees argue that the President lacked authority
 under Section 2254(b)(1)(B) to modify the safeguards im-
 posed by Proclamation 10101 because the petition submit-
 ted by domestic industry did not base the modification
 request on domestic industry having made a positive ad-
 justment to import competition. The portion of Section
 2254(b)(1)(B) on which this argument is based provides:
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 22                SOLAR ENERGY INDUSTRIES ASSOCIATION v. US




      Action taken under section 2253 [i.e., a safeguard]
      . . . may be reduced, modified, or terminated by the
      President (but not before the President receives the
      [Commission] report . . .) . . . if the President . . .
      determines, after a majority of the representatives
      of the domestic industry submits to the President a
      petition requesting such reduction, modification, or
      termination on such basis, that the domestic indus-
      try has made a positive adjustment to import com-
      petition.
 

(b) (emphasis added). Appellees contend
 that the phrase “on such basis” refers to the petition, such
 that the petition itself must be based on domestic indus-
 try’s view that it has made a positive adjustment to import
 competition. The trade court, agreeing with the govern-
 ment, held instead that “on such basis” refers to the Presi-
 dent’s determination, which may be based on the
 Commission Report’s finding that domestic industry has
 made a positive adjustment, regardless of whether the pe-
 tition also contends the same. In other words, the parties
 agree that “such” in “on such basis” refers back to some-
 thing indicated or implied earlier in the provision, but the
 government contends that the thing being referred to is the
 Commission mid-point Report while Appellees insist the
 thing is, by contrast, the domestic industry petition.
     We find both views to be reasonable. Section 2254(b)
 expressly refers to both the Commission Report and the do-
 mestic industry petition before it sets out the requirement
 that the President make a determination, that domestic in-
 dustry has made a positive adjustment, “on such basis.”
 That “basis” could be the Commission Report or could just
 as easily be the industry petition. See J.A. at 20 (trade
 court explaining that “a determination made on the basis
 of the [Commission] report would reflect the views of an
 independent body based on information and argument pro-
 vided by all market participants, and would therefore align
 with . . . Section [2254](b)(1)(B)’s overall aim of permitting
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 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US                 23



 the adjustment of safeguard measures when the industry
 as a whole begins to adapt to competition”) (internal quo-
 tation marks omitted). It follows, then, that the govern-
 ment’s interpretation is not a clear misconstruction and,
 hence, we must affirm the trade court’s conclusion on this
 point. See Maple Leaf, 

. We agree with the
 trade court that the President did not violate the “on such
 basis” procedural requirement for adopting a modification.
      The trade court also concluded that even if Appellees’
 interpretation on this point were a clear misconstruction,
 “the failure of petitioners to comply with [the petition] re-
 quirement would not render Proclamation 10101 unlaw-
 ful.” J.A. 21. Given our other conclusions, it is unnecessary
 for us to review this determination of the trade court.
                              B
      Appellees next argue that the President failed to com-
 ply with Section 2254(b)(1)(B)’s requirement to determine
 that “the domestic industry has made a positive adjust-
 ment to import competition” (emphasis added). As Appel-
 lees correctly observe, in Proclamation 10101 the President
 found that “the domestic industry has begun to make posi-
 tive adjustment to import competition.” Proclamation
 10101, 85 Fed. Reg. at 65640 (emphasis added). According
 to Appellees, this is insufficient, as the President merely
 made a finding that positive adjustment had started but
 did not make the purportedly required finding that such
 positive adjustment be completed. Appellees insist that
 “‘[h]as made’ and ‘has begun to make’ do not mean the same
 thing.” SEIA Br. 58.
     Once again, we are not required to decide if Appellees’
 interpretation is reasonable or even the better view. In-
 stead, we are asked only to determine if the government’s
 view, that the statutory language “has made a positive ad-
 justment” is broad enough to include circumstances in
 which domestic industry “has begun to make a positive ad-
 justment,” is a clear misconstruction. Like the trade court,
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 24               SOLAR ENERGY INDUSTRIES ASSOCIATION v. US




 we hold that “the distinction between ‘has made’ and ‘has
 begun to make’ is too narrow to rise to the level of a clear
 misconstruction.” J.A. 22.
      It is reasonable to interpret “has made a positive ad-
 justment” as relating to a process, which might be ongoing,
 rather than being limited to periods following a completed,
 successful adjustment. As the government notes, the stat-
 utory phrase is written in the present perfect tense, which
 can be used to refer to an action completed entirely in the
 past and also to action still in process. See Reply Br. at 36
 (citing Kenneth G. Wilson, The Columbia Guide to Stand-
 ard American English 342 (1993)). This plain meaning un-
 derstanding of “has made” is supported by other parts of
 the Trade Act, which recognize that “positive adjustment”
 to import competition will occur over time and not on a sin-
 gle date. See, e.g., 

(c)(1) (“[T]here is evi-
 dence that the industry is making a positive adjustment to
 import competition.”) (emphasis added); 

 § 2254(d)(1)
 (“[T]he Commission shall evaluate the effectiveness of the
 actions in facilitating positive adjustment by the domestic
 industry to import competition.”). Indeed, two of the con-
 ditions that the statute expressly identifies as constituting
 components of “a positive adjustment” – when “the domes-
 tic industry experiences an orderly transfer of resources”
 and “workers in the industry experience an orderly transi-
 tion,” id. § 2251 (emphasis added) – use the present tense,
 again reflecting that positive adjustment by domestic in-
 dustry can involve an ongoing process.
     Thus, we agree with the trade court that the President
 did not violate the procedural requirement that he deter-
 mine that domestic industry “has made” a positive adjust-
 ment to competition from imports.
                              C
     Finally, we consider whether the President is required
 to re-weigh costs and benefits when modifying a safeguard
 pursuant to Section 2254(b)(1). The trade court concluded
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 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US                    25



 that the President must do so and also that, in connection
 with Proclamation 10101, he did so. J.A. 27-28. We con-
 clude, by contrast, that the President is not required to re-
 weigh costs and benefits when modifying a safeguard
 measure. Thus, we need not decide whether the President
 complied with this non-requirement in issuing Proclama-
 tion 10101.
     Two statutory provisions mention the President’s obli-
 gation to weigh costs and benefits. The first is Section
 2251(a), which provides:
     If the United States International Trade Commis-
     sion (hereinafter referred to in this part as the
     “Commission”) determines under [S]ection 2252(b)
     of this title that an article is being imported into
     the United States in such increased quantities as
     to be a substantial cause of serious injury, or the
     threat thereof, to the domestic industry producing
     an article like or directly competitive with the im-
     ported article, the President, in accordance with
     this part, shall take all appropriate and feasible ac-
     tion within his power which the President deter-
     mines will facilitate efforts by the domestic industry
     to make a positive adjustment to import competition
     and provide greater economic and social benefits
     than costs.
 

(a) (emphasis added). Section 2253(a) re-
 states the President’s authority to take safeguard action
 under Section 2251(a), reciting the requirement that the
 President must consider both long- and short-term benefits
 and costs. See 

(a)(2)(E) (“In determining
 what action to take . . ., the President shall take into ac-
 count . . . the short- and long-term economic and social
 costs of the actions authorized . . . relative to their short-
 and long-term economic and social benefits.”).
    These provisions expressly apply to the initial adoption
 of a safeguard measure and make no reference to
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 26               SOLAR ENERGY INDUSTRIES ASSOCIATION v. US




 modification of such measures. The President’s power to
 reduce, modify, or terminate an existing safeguard is gov-
 erned by Section 2254(b)(1), which makes no mention
 whatsoever of cost-benefit determinations. Nor does any
 portion of the safeguard statute tie the requirement of a
 cost-benefit analysis, set out in Sections 2251(a) and
 2253(a)(1)(A), to the President’s power to reduce, modify,
 or terminate a safeguard, as provided for in Section 2254.
     The trade court seems to have been persuaded to adopt
 the contrary view due, at least in part, to its concern that
 the government’s interpretation “risks permitting absurd
 results” (e.g., a 1% initial tariff followed by a 50% modified
 tariff, with no cost-benefit analysis of the 50% rate) and
 might allow the modification “exception” of Section 2254 to
 “swallow . . . the rule” of Section 2251. J.A. 27. We do not
 share this fear. On any reading, a “modification” must be
 a relatively minor adjustment; expansion of a 1% duty to a
 50% duty is obviously not a minor change. And any modi-
 fication to a duty rate must comply with the phase-down
 requirement, preventing the modified tariff from being any
 higher than the tariff that was imposed in the preceding
 year. See Reply Br. at 42 (Government conceding “[t]he
 President’s modification authority remains subject to the
 section 2253(e)(5) phase-down requirement”). More im-
 portantly, the trade court failed to explain how its conclu-
 sion is consistent with the actual language of the statute,
 or how the government’s interpretation is a clear miscon-
 struction.
     We conclude that the President’s view that he was not
 required to re-weigh the costs and benefits when modifying
 the safeguard pursuant to Section 2254(b)(1) is not a clear
 misconstruction. Thus, Appellees have failed to show that
 the President committed any procedural violation in issu-
 ing Proclamation 10101.
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 SOLAR ENERGY INDUSTRIES ASSOCIATION v. US               27



                             V
     Because the President’s interpretation of 

(b)(1)(B) as permitting trade-restricting modifica-
 tions is not a clear misconstruction, and because the Pres-
 ident did not violate the procedural requirements of the
 statute, we reverse the trade court’s judgment. Proclama-
 tion 10101 is not invalid.
                REVERSED AND REMANDED
                           COSTS
 No costs.