[00:00:00] Speaker 03:
Industries Association, et al.

[00:00:03] Speaker 03:
versus the United States, CDP, 2020-1392.

[00:00:10] Speaker 03:
Mr. Curley.

[00:00:12] Speaker 03:
Thank you.

[00:00:16] Speaker 03:
Please proceed.

[00:00:17] Speaker 02:
Thank you.

[00:00:18] Speaker 02:
Good morning, Your Honors, and may it please the Court.

[00:00:21] Speaker 02:
This court should reverse the judgment of the trial court because the text, structure, purpose, and history of section 2254B1B show that Congress took a neutral approach towards modifications, which gave the president

[00:00:37] Speaker 02:
flexibility to meet the safeguard statute's remedial objectives, and at the very least show that the President did not clearly misconstrue the statute under the limited standard of review in Proclamation 10101.

[00:00:50] Speaker 02:
Numerous aspects of the statute evidence Congress's neutral and at times even trade-restrictive approach in the statute, starting with the language of Section 2254B1B itself,

[00:01:05] Speaker 02:
which contains no explicit requirement along the lines of the one that the trial court and the appellees imply into the statute.

[00:01:14] Speaker 03:
Counsel, do you know of the canon of construction, if I pronounce it adequately, Nausator Asokei, one knows it by his friends?

[00:01:27] Speaker 02:
I have heard of that canon, Your Honor.

[00:01:29] Speaker 03:
Well, it is an established canon, and reduction and termination

[00:01:34] Speaker 03:
indicate lessening.

[00:01:36] Speaker 03:
So why doesn't modification have that same meaning?

[00:01:40] Speaker 02:
I think for several reasons.

[00:01:41] Speaker 02:
First of all, because there are two other uses of modifications just in that same provision 2254B1B that by their nature have to allow trade restrictive modifications.

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I think the one particularly stark one is the use of modification in the title.

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2254B's title is Reduction, Modification, and Termination.

[00:02:02] Speaker 02:
So it has three things.

[00:02:04] Speaker 02:
Among the provisions in 2254b is the circumvention provision, which is basically only about trade restrictive changes, modifications to a safeguard measure.

[00:02:15] Speaker 02:
Because a trade restrictive action under 2254b cannot be a reduction and it cannot be a termination, it can only be a modification.

[00:02:26] Speaker 02:
So right there in that same provision, Congress is using modification in a way that has to connote both

[00:02:34] Speaker 02:
both trade restrictive and trade reductive measures.

[00:02:39] Speaker 02:
Also, another sub-provision of that Section 2254B3 is the one that allows the President to take action to comply with the WTO decision.

[00:02:49] Speaker 02:
And as we pointed out in our brief, and this hasn't really been disputed by plaintiffs, that could also be a trade restrictive or trade neutral modification.

[00:02:56] Speaker 02:
So that's right in the statute.

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And then I think there are several other reasons as well.

[00:03:01] Speaker 02:
One very important one is that Congress legislated... I'm sorry, I shouldn't skip past the WTO provision so quickly.

[00:03:09] Speaker 02:
If you're taking action with respect to an adverse WTO decision, you could loosen to comply with it, but there might be circumstances where you more restrict to comply with it, like adding countries.

[00:03:21] Speaker 02:
to the measure in response to some claim of unequal treatment.

[00:03:24] Speaker 04:
I just want to make sure that is the thing.

[00:03:25] Speaker 04:
The WTO could tell us that we've been too loose in trade and we need to restrict further.

[00:03:31] Speaker 02:
More or less, yes, but that's not what they would say.

[00:03:33] Speaker 02:
They would say you're acting in some unequal or unfair way.

[00:03:35] Speaker 02:
Maybe you have an applied MFN and most favored nation status, or maybe you've excluded countries.

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And the WTO would say, that's unfair.

[00:03:44] Speaker 02:
You can't exclude NAFTA countries.

[00:03:46] Speaker 04:
But the bottom line would be that the president would have to take action to make things more trade restrictive in response to a WTO decision?

[00:03:55] Speaker 02:
He would not have to, but he could.

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He could say, I'm going to make this equal by bringing these countries in.

[00:04:00] Speaker 02:
And in fact, that's roughly analogous to what the president did in that wheat gluten proclamation that we cited as a historical example of trade restrictive.

[00:04:09] Speaker 02:
There wasn't an unequal treatment thing, but Poland had become a larger producer of the product.

[00:04:14] Speaker 02:
And so after the ITC report, the president went and made a modification and said, I'm adding Poland because they were out and now they should be in.

[00:04:23] Speaker 02:
I would be remiss, however, if I didn't also point out that Congress legislated 2254B.

[00:04:29] Speaker 02:
It didn't do so on a blank slate.

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There are two important aspects of legislative history to highlight here.

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The first is that the basic definition of modification under the statute

[00:04:41] Speaker 02:
which is 19 USC 2481 subsection 6.

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We've described it as an open-ended definition.

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It basically says it can include elimination, but it doesn't say it can't include restriction.

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It's open-ended.

[00:04:57] Speaker 02:
The legislative history to that, which we've cited in our brief, is particularly important because that legislative history also evidences a neutral approach.

[00:05:05] Speaker 02:
The House report actually explicitly says, yes, you can have increases and decreases.

[00:05:10] Speaker 02:
The Senate report just uses the word change generically, again, consistent with the neutral approach.

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So that is the grounds on which Congress legislated in 1988 when it added this provision.

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If it wanted to change that kind of neutral, open-ended definition of modification,

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It could have done so, but it didn't.

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And that brings us to the second piece of legislative history that's really important here.

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The legislative history of the 1988 law itself that added Section 2254B1B.

[00:05:43] Speaker 02:
There's an important aspect of that legislative history that appellees leave out.

[00:05:47] Speaker 02:
Yes, there was a Senate provision that was originally going to make it restrictive, and that language was removed.

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We cited the Supreme Court principle, Rossello,

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other principles that say if Congress removes language, you have to take that seriously.

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It's presumed that Congress acts purposely.

[00:06:06] Speaker 02:
But what appellees leave out is that that language was removed because the provision was being combined with the House version of the legislation, which again, explicitly allowed the President to take action to, I'm going to quote it directly here, ensure the effectiveness of import relief and providing adequate opportunity for adjustment.

[00:06:27] Speaker 02:
So the Senate was restrictive, the House bill went the other way, and Congress ultimately took that language out and left it as a neutral approach.

[00:06:36] Speaker 04:
The Court of International Trade seemed concerned that your reading would create a loophole that the President could exploit.

[00:06:43] Speaker 04:
Do you agree that it does create a loophole, and if not, what prevents it?

[00:06:47] Speaker 02:
No, not at all.

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And I think that's where the trial court respectfully went wrong.

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Because even though the provisions of Section 2254 do not prevent these kind of modest adjustments, consistent with the Supreme Court's definition of modest being limited to adjustments in MCI, there are ultimate constraints in the statute, principally contained in Section 2254E.

[00:07:12] Speaker 02:
There's the E5.

[00:07:13] Speaker 02:
2353.

[00:07:13] Speaker 02:
2353, excuse me.

[00:07:17] Speaker 02:
That's correct.

[00:07:18] Speaker 02:
A provision that allows the ratcheting down, phasing down over time.

[00:07:22] Speaker 02:
This modification, Proclamation 101, was consistent with that.

[00:07:27] Speaker 05:
Would it have been consistent if it wasn't USTR but the president who in 9673 excluded double-sided panels?

[00:07:39] Speaker 02:
uh... and hard to speculate your honor but i think what that is important here that u.s.

[00:07:45] Speaker 02:
carol not the that that the president was only restoring the status quo empty and that the president and now the plan of action in paragraph twelve of his original proclamation ninety six ninety three which said if i don't have any two fifty three what is it the five is that we're talking about this because that applied to any restrictive measure only a subset and would it apply to uh...

[00:08:09] Speaker 05:
Hello.

[00:08:10] Speaker 05:
the kinds of products that are covered.

[00:08:13] Speaker 05:
I'm just asking now a statutory form of the question I previously asked.

[00:08:17] Speaker 05:
Suppose it wasn't USTR, but suppose it was the president, which it was not, that excluded the double-sided panels.

[00:08:26] Speaker 05:
To begin with, could the president then use the 2254 B1B modification authority to add double-sided panels, even though he

[00:08:39] Speaker 05:
excluded them, by hypothesis, contrary to fact, in the initial one?

[00:08:45] Speaker 02:
Sure.

[00:08:46] Speaker 02:
I think it depends a little bit on the facts.

[00:08:49] Speaker 02:
But I think in your Honor's scenario, the basic version of your Honor's scenario, the circumvention provision, if they were excluded from the original measure, then I think you'd be in a circumvention circumstance where B2 would come in, potentially, rather than B1.

[00:09:03] Speaker 02:
If the ITC has not even looked at that product, the president can't add a measure based on products that are not part of the ITC's investigation.

[00:09:13] Speaker 02:
If it was part of the ITC's investigation, and then the president somehow excluded it, that may change the circumstances.

[00:09:19] Speaker 02:
But the language of 2253E5 says the action, and consistent with this court's approach in Trans-Pacific, for example, as later affirmed by Francis.

[00:09:29] Speaker 05:
It's not just limited to tariffs.

[00:09:33] Speaker 02:
Right.

[00:09:34] Speaker 02:
It's the overall action has to fade down.

[00:09:36] Speaker 02:
And there are other provisions.

[00:09:37] Speaker 02:
The 2253 also prevents the president from raising tariffs more than 50%, I think, of the existing rate.

[00:09:45] Speaker 02:
Or maybe it's above 50% overall.

[00:09:47] Speaker 02:
I think it's 50% of the existing rate.

[00:09:48] Speaker 02:
So all these are constraints.

[00:09:49] Speaker 04:
Is it always clear whether a particular action by the president is trade liberalizing or trade restricting?

[00:09:56] Speaker 04:
Or would you argue that part of the problem with the CIT interpretation is

[00:10:01] Speaker 02:
we don't always know uh... we might get into debates about whether particular action is restricted or liberalizing i think that point is well taken and and it also points out a flaw in a felice position because some of these actions that they claim or modifications without uh... without while still being trade reductive or on reductions or terminations

[00:10:22] Speaker 02:
Those are clearly things you'd want to do under the first subsection, B1A.

[00:10:25] Speaker 02:
But if they're only modifications and not reductions or terminations, then you wouldn't be able to do those things to reduce the measure.

[00:10:35] Speaker 02:
And that's another flaw in their argument.

[00:10:37] Speaker 02:
And of course, the why here is this case demonstrates why Congress would take a hands-off approach on this issue and understand that it couldn't anticipate all the circumstances that would come out of the midterm report.

[00:10:50] Speaker 02:
Because here the ITC very much did find, this is page 6 of the February 2020 ITC monitoring report that is the trigger for the President's authority under the statute, they found that the industry had made a positive adjustment.

[00:11:06] Speaker 02:
but they found that that ongoing positive adjustment was being impaired by this major loophole that had developed through the bifacial exclusion.

[00:11:17] Speaker 02:
We're not the ones proposing a loophole.

[00:11:19] Speaker 02:
It's the bifacial exclusion that was a loophole, and it does seem somewhat absurd

[00:11:22] Speaker 02:
that the president would not be able to fix a loophole that's essentially created with his own delegated authority in a safeguard measure in a way that everyone seemed to agree was impairing the effectiveness of the measure.

[00:11:34] Speaker 05:
Can I ask you about one of the, I guess there's three alternative grounds that are asserted on appeal that the trade court rejected.

[00:11:44] Speaker 05:
I want to ask you about one of them.

[00:11:45] Speaker 05:
And that is the question whether the

[00:11:52] Speaker 05:
What's it called?

[00:11:54] Speaker 05:
The petition, is that right?

[00:11:56] Speaker 05:
The petitioner who says, we would like you to make a modification, whether the petition has to say, and by the way, we're making progress.

[00:12:06] Speaker 05:
Here, I'm not distinguishing between progress and reach the promised land.

[00:12:11] Speaker 05:
Does the petition have to say that?

[00:12:12] Speaker 05:
And I think it's undisputed here that the thing, the three letters that constitute the petitions here did not say that.

[00:12:21] Speaker 05:
Peculiar language of the statute.

[00:12:23] Speaker 02:
The statute does have peculiar language.

[00:12:25] Speaker 02:
I mean, vague.

[00:12:27] Speaker 05:
In your view, what does such refer to?

[00:12:29] Speaker 05:
The ITC report?

[00:12:30] Speaker 02:
The ITC report, because the president can only act after he receives the ITC report.

[00:12:36] Speaker 02:
Such as generally refers to something previous.

[00:12:38] Speaker 02:
We cited the Black's law definition of that in this kind of pronoun form.

[00:12:44] Speaker 02:
But also it makes sense, because if the president has the objective, thorough report from the ITC, the industry's perceptions of its positive adjustment

[00:12:53] Speaker 02:
should be less important.

[00:12:54] Speaker 02:
The other thing that's worth noting here is that this point is slightly disingenuous, because the president has in his hands the ITC's February 2020 monitoring report.

[00:13:04] Speaker 02:
Again, the trigger, the thing we think such refers to.

[00:13:07] Speaker 02:
That involves significant advocacy from the parties, and there's a section of that report, Roman numeral seven.

[00:13:17] Speaker 02:
You look at pages 28 to 32 of that report, for example,

[00:13:20] Speaker 02:
I mean, these same domestic industry parties were arguing themselves pretty hoarse that they had made a positive adjustment to import competition, but were being impaired.

[00:13:30] Speaker 03:
You're into your rebuttal time?

[00:13:31] Speaker 03:
OK, I will save the rest of my time for rebuttal, Your Honor.

[00:13:34] Speaker 02:
Thank you.

[00:13:36] Speaker 03:
Just do nicely.

[00:13:38] Speaker 03:
You're taking 12 minutes.

[00:13:40] Speaker 01:
Thank you, Your Honors.

[00:13:42] Speaker 01:
May it please the court, I'm Matt Nicely of Aitken Gomp, appearing on behalf of Land of Apollize, Solar Energy Industries Association, Orsilla, and Nextera Energy Inc.

[00:13:53] Speaker 01:
Congress laid out specific statutory standards and requirements when a president seeks to make changes to a safeguard action, action which itself is extraordinary action, as it is imposed on all imports of a product for which no finding of unfair trade is lodged

[00:14:10] Speaker 01:
where the president is required by statute to ensure that the economic and social benefits of the action outweigh the costs, and where any relief is phased down over the life of the action.

[00:14:22] Speaker 01:
The relevant statutory standards and requirements applicable here were not followed by President Trump when he issued Proclamation 101.

[00:14:31] Speaker 01:
There are four grounds on which you can affirm the trade court's decision, any one of which is sufficient to uphold that court's decision.

[00:14:40] Speaker 05:
One thing you said caught my ear.

[00:14:42] Speaker 05:
You say that the phase down or degression, I've never heard that word before, degression requirement applies to any action.

[00:14:50] Speaker 05:
So your answer to my question about

[00:14:52] Speaker 05:
what would have been the case had the two-sided panels been included in the original, I'm sorry, they were included in the original, had they not been, was that that kind of modification of bringing them in for the first time would have been prohibited by the phase-down requirement.

[00:15:09] Speaker 01:
Arguably, yes, Your Honor.

[00:15:10] Speaker 01:
That's not our situation here, but I think

[00:15:14] Speaker 01:
The government's answer to your question about the possibility of using the circumvention provision could be applicable.

[00:15:20] Speaker 01:
On the other hand, I could see a debate about that because you don't have an international trade commission decision finding serious injury with regard to those products.

[00:15:29] Speaker 05:
Obviously the reason I'm asking this is that the trade court was concerned about too large a loophole for presidential impositions at the modification stage and if

[00:15:44] Speaker 05:
the inclusion of new products was not among the things that he could do by virtue of the phase down requirement, then the concern about loophole is to that extent lessened.

[00:15:56] Speaker 01:
Is perhaps to that extent less than yes, but there are other ways in which you can imagine going above the amount that was originally announced in terms of duties or the particular quota, et cetera.

[00:16:06] Speaker 04:
Let me ask you what I asked your friend on the other side.

[00:16:08] Speaker 04:
Is there not a general problem here with your interpretation that it's not always clear what is trade restrictive versus trade liberalizing?

[00:16:18] Speaker 01:
I think there are instances where you can, as the government has argued, and in fact opened his words on, with the notion of something being neutral, right?

[00:16:33] Speaker 01:
Something could be you could have a quota that's set on an annual basis and turn it into a quarterly quota, for instance.

[00:16:40] Speaker 01:
And is that more or less?

[00:16:42] Speaker 01:
It's not always necessarily clear.

[00:16:45] Speaker 04:
uh... but so it or you could change the nature of the restriction maybe i don't know from a duty to uh... quota uh... on your view we're going to be fact-finding on all of those to determine whether the president can actually make that modification is that right i think hopefully the question if we can get into this because i don't think it came up during uh... the government's discussion is whether it makes sense in the context of the specific provision that's issued here which is two or four b one b

[00:17:14] Speaker 01:
And I say that and I draw your attention to that because we are talking about a provision that is specifically triggered by the domestic industry itself coming forward with, by the way, no reference at all to the substance of the ITC's midterm report.

[00:17:31] Speaker 01:
Just the fact temporarily that it has happened.

[00:17:33] Speaker 01:
You have to wait until that has happened.

[00:17:36] Speaker 01:
And they are coming forward and saying that they have adjusted to import competition.

[00:17:42] Speaker 01:
Okay.

[00:17:42] Speaker 01:
That is adjusting the import competition is a term of art in the statute in 201B.

[00:17:49] Speaker 01:
It specifically says in 201B1 that that means that the domestic industry is able to compete successfully with imports after actions taken under section 2254 of this title terminate.

[00:18:02] Speaker 01:
In other words, and it goes on to explain further, but that's the key phrase.

[00:18:06] Speaker 01:
If the industry has already made the adjustment to import competition,

[00:18:10] Speaker 01:
It makes no sense to interpret the word modify in that particular provision to mean that the president can make the relief even more restrictive than it was before.

[00:18:20] Speaker 01:
And clearly in this instance, we are talking about something that's more restrictive.

[00:18:23] Speaker 01:
We have in two respects.

[00:18:24] Speaker 01:
Number one,

[00:18:25] Speaker 01:
The relief as it was announced originally had duties on all products that was amended by an exclusion for bifacial panels.

[00:18:37] Speaker 01:
So you have the relief in effect at the time of the president's proclamation 101 was in fact... But it's not more restrictive if we go back to 96-93.

[00:18:46] Speaker 04:
Adding them back in just restores the status quo that the president put in place in the first.

[00:18:53] Speaker 01:
See, that's what we argue is kind of an unusual approach that the government has taken here.

[00:18:59] Speaker 01:
They're basically telling you, don't worry, we promise we're never going to go above what we had in place before.

[00:19:05] Speaker 01:
And perhaps this goes to some extent to Judge Toronto's question, because the fact is we don't know how this could be interpreted in the future.

[00:19:15] Speaker 01:
The fact is that this could go above where it was before.

[00:19:20] Speaker 01:
Because the way in which they're interpreting it, we don't know which way it would go.

[00:19:23] Speaker 04:
Well, I don't see how that's the case.

[00:19:25] Speaker 04:
You have the degression requirement, which requires, at least on a yearly basis, a phase down if duties are imposed, correct?

[00:19:36] Speaker 04:
That's in the statute.

[00:19:37] Speaker 04:
They're not suggesting they don't have to comply with that.

[00:19:40] Speaker 01:
Correct, but they haven't complied with it because they're taking a... Let's talk about that.

[00:19:45] Speaker 04:
So the raise from what was planned to be in the fourth year of 15% to 18%, that had not vested yet.

[00:19:55] Speaker 04:
We were not in the fourth year when the president did the modification.

[00:19:59] Speaker 04:
Isn't that entirely analogous to what happened in the Will case with judicial salary increases?

[00:20:04] Speaker 01:
I don't think so, Your Honor.

[00:20:06] Speaker 01:
In this case, what we're dealing with is a

[00:20:08] Speaker 01:
an announcement and I think you have to take the 201 statute and safeguard cases alone and look at the structure and the way the law works.

[00:20:16] Speaker 01:
There's an announcement that happens at the beginning when the original proclamation is issued.

[00:20:21] Speaker 01:
And there's very clearly an announcement about what the phase down is going to be.

[00:20:26] Speaker 01:
Companies make plans about that phase down in advance.

[00:20:29] Speaker 04:
Statute requires a midterm report from the ITC.

[00:20:33] Speaker 04:
Everybody knows that.

[00:20:35] Speaker 04:
and the president has modification power.

[00:20:37] Speaker 04:
He also has termination and reduction power.

[00:20:39] Speaker 04:
Industry, everybody knows that.

[00:20:42] Speaker 04:
Doesn't that imply there could be a change?

[00:20:44] Speaker 01:
I'm sorry, Your Honor, but what we're dealing with is 204B1B.

[00:20:48] Speaker 01:
And I guess, let me make sure that I get to the important contextual arguments about the, and Judge Laurie asked about this earlier, about the issue of the surrounding provisions, right?

[00:21:03] Speaker 01:
I mean, the fact is,

[00:21:04] Speaker 01:
that the provision that's right before 204b1b specifically talks about the notion of reviewing that ITC report very, very carefully, consulting with commerce and labor secretaries, and talks about the possibility of changed economic circumstances.

[00:21:24] Speaker 01:
And even yet, in that situation, the Congress decided to deny the president the authority to increase, to make more restrictive

[00:21:34] Speaker 01:
the trade relief that was originally granted.

[00:21:37] Speaker 03:
But even if we agree with you that modification means lessening, was there a clear misconstruction of the statute?

[00:21:49] Speaker 03:
It seems to be arguable.

[00:21:51] Speaker 03:
Maybe that's not clear.

[00:21:53] Speaker 01:
I beg to differ, Your Honor.

[00:21:55] Speaker 01:
I think in this instance, given the context of both 204b1a as well as 204b2, it does become clear.

[00:22:05] Speaker 01:
And the canons of statutory construction that have been cited in all of our briefs make evident that even if a specific word might be ambiguous when you read it in context, it's not.

[00:22:18] Speaker 01:
Let's just look at 204b2 for a moment.

[00:22:21] Speaker 01:
We're talking about a provision that specifically allows for an increase, and they use language that made very clear that they allow for it, right?

[00:22:32] Speaker 01:
If they meant to allow for it in the context of 204b1b, even though the industry has come forward and said, we have already adjusted to import competition, even in that instance,

[00:22:44] Speaker 01:
You would think that they would have said so.

[00:22:46] Speaker 01:
They would have allowed it.

[00:22:47] Speaker 05:
What are the circumstances in the real world, not odd circumstances, but normal circumstances, in which domestic industry comes in and says, please protect us less?

[00:22:58] Speaker 01:
I'm sorry, and I hear somebody laughing in the background, but it happens all the time.

[00:23:02] Speaker 01:
It happens.

[00:23:02] Speaker 05:
Yeah, that's what I want to understand.

[00:23:05] Speaker 05:
Superficially, it raises the question.

[00:23:08] Speaker 01:
Understood.

[00:23:08] Speaker 01:
But the Harley-Davidson case back in 1988 is a good example where Harley-Davidson came forward and said, we're done.

[00:23:14] Speaker 01:
We don't need relief anymore.

[00:23:15] Speaker 01:
It happens in anti-dumping and counterfeiting duty cases all the time, where companies come in and say, in fact, it happened in a couple of cases just in the last few months, where the industry comes forward and says, we are, through a changed circumstance review, where they come forward and they say, we no longer need this relief.

[00:23:34] Speaker 01:
So there are examples.

[00:23:36] Speaker 01:
There may be lots of little details as to why those things might happen, but the fact is they do happen.

[00:23:41] Speaker 05:
Do those things happen when the domestic industry is also in process of selling a whole lot of imports and so it now has a mixed interest?

[00:23:51] Speaker 01:
That can happen, for sure.

[00:23:54] Speaker 01:
Yes, Your Honor, for sure.

[00:23:55] Speaker 01:
But that's not the only instance in which it happens.

[00:23:57] Speaker 01:
The point is there are many examples.

[00:24:01] Speaker 05:
of where companies decide so so when you look at uh... the twenty two fifty four b one a and b a is where basically the domestic industry is is not doing enough to make continuation worthwhile and so the president can say eliminate or reduce and be is where domestic industry is saying in your view which is now combining two arguments uh... that it has done well enough and therefore uh...

[00:24:31] Speaker 05:
We don't need this anymore, as opposed to the second one being covering the waterfront of we need more, and we're making progress, and we deserve it.

[00:24:42] Speaker 05:
With all due respect, Your Honor, there's one- That was not a skeptical question.

[00:24:46] Speaker 01:
I understand, but I do want to just correct one issue, which is that there's a second part to 204b1a.

[00:24:53] Speaker 01:
It's not merely when the industry is not doing enough.

[00:24:56] Speaker 01:
It's also, if you look at the two little i in the hole, the effectiveness of the action taken under section 2253 of this title has been impaired by change that can... Right, or it's pointless.

[00:25:07] Speaker 01:
What's that?

[00:25:08] Speaker 05:
Or it's pointless.

[00:25:09] Speaker 01:
Well, not necessarily.

[00:25:11] Speaker 01:
I mean, if you look at the legislative history, they specifically use an example of where, for instance, exchange rates could change dramatically, diluting the effect of the duty.

[00:25:20] Speaker 01:
And therefore, perhaps you would think that in that instance, you would think that you would be allowed to increase the duty in response to it.

[00:25:28] Speaker 01:
But that is exactly my point, Your Honor.

[00:25:31] Speaker 01:
The statute there doesn't allow it.

[00:25:33] Speaker 05:
Right, I'm trying to understand how these two pieces fit together.

[00:25:37] Speaker 05:
The first one is, is it undisputedly only liberalizing measures?

[00:25:44] Speaker 05:
The A?

[00:25:47] Speaker 01:
If you look at what I'll call the shoe, we've been joking about, we talk about the chapeau, what is the lower part, the shoe, where it says that change circumstances warrant such reduction or termination at the very end of 2014.

[00:26:00] Speaker 01:
204B1A, right?

[00:26:01] Speaker 01:
Right.

[00:26:02] Speaker 01:
So our assumption in reading that and everybody in this litigation is great.

[00:26:06] Speaker 05:
Assuming we could always distinguish liberalizing versus non-liberalizing, A is only about you can do things to liberalize.

[00:26:13] Speaker 05:
That's right.

[00:26:14] Speaker 05:
And then B, you want to say, is also about that because it is very plausibly about a circumstance in which liberalizing could be supported in the absence of the A conditions, but it's still liberalizing.

[00:26:29] Speaker 01:
It's still liberal.

[00:26:30] Speaker 01:
Yes.

[00:26:31] Speaker 05:
The government's view is B is not just about liberalizing.

[00:26:35] Speaker 01:
I understand that.

[00:26:35] Speaker 01:
But they're trying to shoehorn it in there because A, doesn't permit it.

[00:26:41] Speaker 01:
And so for whatever reason, Congress didn't provide that.

[00:26:44] Speaker 01:
They denied the government the authority to do it in that context.

[00:26:47] Speaker 05:
But you understand that your last couple of sentences don't advance the ball at all.

[00:26:52] Speaker 05:
We're trying to figure out which side is right about the interpretation by figuring out what the fair implications are from the things that are in the statute and not what anybody's trying to do.

[00:27:05] Speaker 05:
They may be trying to do something they're entitled to, in which case who cares what they're trying to do.

[00:27:09] Speaker 01:
I understand.

[00:27:10] Speaker 01:
But my explanation, though, is if you look again in context between both A and B2,

[00:27:20] Speaker 01:
then it becomes evident that if they had meant to allow a more trade-restrictive approach in 204b1b, they would have said so in the same way they did in b2, where they used specific language that says that they're permitting themselves to make a change.

[00:27:40] Speaker 01:
And the language that's specifically used in b2 is to take such additional action

[00:27:49] Speaker 01:
That takes such additional action is, in essence, another way of saying to increase.

[00:27:55] Speaker 01:
Congress knew how to say increase if they meant to increase.

[00:27:58] Speaker 04:
Have you given us any examples of where we've found a clear misconstruction of statute by the president?

[00:28:08] Speaker 01:
I believe we have, based on context.

[00:28:11] Speaker 04:
Yes, Your Honor.

[00:28:11] Speaker 04:
No, I don't mean in this case.

[00:28:13] Speaker 01:
In any prior case.

[00:28:15] Speaker 04:
In any precedent where we have found a clear misconstruction.

[00:28:20] Speaker 01:
Um, any case before the federal circuit ever where you found the president making a clear mistake.

[00:28:26] Speaker 01:
Well, I, I, I off the top of my head, I cannot think of one right now, your honor, but it, but it strikes me that you, you have an instance where the president, uh, was making decisions that are, that, that, that do, that are in fact clearly in, uh, you think it's here clearly.

[00:28:42] Speaker 01:
Thank you.

[00:28:43] Speaker 01:
Um, we, we do have two other alternative arguments that we haven't had a chance to touch on, but we'll, we'll refer to our briefs.

[00:28:49] Speaker 03:
Thank you.

[00:28:50] Speaker 03:
Ms.

[00:28:50] Speaker 03:
Berman.

[00:28:51] Speaker 00:
Good morning, Your Honors.

[00:28:52] Speaker 00:
Amanda Berman on behalf of appellees in energy renewables and EDF renewables.

[00:28:57] Speaker 00:
And I want to address one of the three alternative arguments.

[00:29:00] Speaker 00:
And that is that the court can uphold the decision below on the independent ground that the president failed to make a determination that he is required by the statute to make before he takes any safeguard action.

[00:29:11] Speaker 00:
And that is the determination that the economic and social benefits of taking action outweigh the cost.

[00:29:16] Speaker 00:
The safeguard statute directs the president to make that determination not once, but three times.

[00:29:21] Speaker 00:
And critically, the first time is in the very first provision of the statute, Section 201A, entitled Presidential Action, that sets the constraints for the president's general authority to take action.

[00:29:35] Speaker 00:
And I think that's really important, Your Honor, because that's why this is a cross-cutting requirement.

[00:29:40] Speaker 00:
It's not just a requirement when the government takes the initial safeguard action.

[00:29:46] Speaker 00:
Now, even in its reply brief, Your Honor, the government pointed, sorry, go ahead.

[00:29:50] Speaker 05:
So I guess I'm remembering, and you'll correct me if I'm remembering incorrectly or badly summarizing, that the trade court effectively said, or in any event could have said in slightly different words,

[00:30:03] Speaker 05:
that the president made an assessment at the outset in 9673 about where the balance needs to be among several things.

[00:30:11] Speaker 05:
He then came along after a little bit of experience with the ITC report and said, that balance is now out of whack, so I need some additional measures to restore that balance.

[00:30:22] Speaker 05:
Why isn't that, in some end substance, a determination of the balance that

[00:30:29] Speaker 05:
the statute admittedly requires.

[00:30:31] Speaker 00:
Your Honor, the notable thing about Proclamation 101 is there is not a mention of economic costs or benefits at all.

[00:30:37] Speaker 00:
And that is, in this entire string of Solar Safe Actions, the prior presidential actions, USTR's actions, all recognize that requirement to make that analysis and to make the determination.

[00:30:49] Speaker 00:
And I would point the court to President Biden's action when he extended the safeguard measure in Proclamation 10-339, which makes the determination that that is required under Section 201 of the statute.

[00:31:00] Speaker 00:
The only place we don't see that is Proclamation 101.

[00:31:03] Speaker 00:
I don't think you can fairly read it into that proclamation.

[00:31:07] Speaker 00:
You know, in that proclamation, there's repeated references to the impacts on the domestic manufacturing industry.

[00:31:13] Speaker 04:
Now, the court below pointed to the word... Do you intend to have to read 10101 all by itself in a vacuum, or do we read it in connection with 9693 and everything that happened up to that point of 10101?

[00:31:25] Speaker 00:
Your Honor, 10101 is an independent presidential action.

[00:31:28] Speaker 04:
And so we would put forth, and I think the government... You effectively want us to say because it didn't have one clear sentence that said, yes, I've weighed the costs and benefits that way.

[00:31:41] Speaker 04:
If the president had just simply written that one sentence in, all would be fine.

[00:31:45] Speaker 00:
Your Honor, this is not just a formulaic magic words kind of thing.

[00:31:49] Speaker 00:
This is one of the core, two core purposes of the statute.

[00:31:52] Speaker 04:
But again, if you want us to judge that document,

[00:31:55] Speaker 04:
And just that document in a vacuum on its own, isn't that essentially a requirement of a certain formulation?

[00:32:02] Speaker 04:
If we don't see that sentence, then he's done.

[00:32:05] Speaker 00:
Your Honor, yeah, it's a statutory prerequisite.

[00:32:07] Speaker 00:
He has to make the determination.

[00:32:08] Speaker 00:
The statute doesn't just say weigh costs and benefits.

[00:32:11] Speaker 00:
It says make a determination that the benefits outweigh the costs.

[00:32:15] Speaker 00:
And he didn't do that in this one action in 10101.

[00:32:18] Speaker 00:
And you can't read that from the word impairment.

[00:32:21] Speaker 00:
In fact, impairment is used in paragraph 9 of 10101

[00:32:24] Speaker 00:
And it is specifically linked right back to the impacts on the domestic industry.

[00:32:29] Speaker 00:
It says impairment is the result of increasing imports of competing products.

[00:32:33] Speaker 00:
So everything in that document tells us that the president was thinking about one thing, and it's the impacts on domestic industry.

[00:32:39] Speaker 00:
And that makes sense because he was acting based on these three letters that only talked about impacts on domestic industry.

[00:32:44] Speaker 00:
But it's really important, Your Honor, that this cross-cutting constraint, and I heard government counsel refer to constraints earlier today, there's one of two constraints, and they recognize this in their reply brief on page six, and that is that you've got to make sure that what you're doing has greater economic and social benefits than costs, not just that it helps the domestic industry.

[00:33:04] Speaker 00:
That's only one of two cross-cutting purposes of the safe ground measure.

[00:33:09] Speaker 00:
Your Honors, I see that my time is out.

[00:33:10] Speaker 00:
And I would just say that, Your Honor, we do have a loophole problem here in conclusion.

[00:33:14] Speaker 00:
If the president is not held to this statutory requirement, and this is a case like Gilda, where this court found that the executive branch acting through USTR had failed to make a determination required by the statute, and this is the 2006 Gilda case, same thing here.

[00:33:31] Speaker 00:
If the president is not held to this determination requirement, he can circumvent the purposes of the safeguard statute

[00:33:37] Speaker 00:
by taking action under this modification provision, regardless of the impact, regardless of the social and economic costs and whether they are outweighed by the benefits.

[00:33:47] Speaker 05:
Can I just double check something?

[00:33:48] Speaker 05:
Do your clients or anybody on your side dispute the applicability of the clear, the clarity standard of statutory violation that we have said applies when it's the president's own action?

[00:34:06] Speaker 00:
Your honor, I don't think we have a standard of review dispute here.

[00:34:09] Speaker 00:
And that's because the government, in its own brief, cites to the motion systems case, it recognized that there has to be, that the president can't violate an explicit statutory mandate.

[00:34:23] Speaker 00:
So call it clear, call it explicit.

[00:34:25] Speaker 00:
This is 100% clear in the statute.

[00:34:27] Speaker 00:
The statute says that three times, it uses particular words, make a determination.

[00:34:32] Speaker 00:
We don't have that determination.

[00:34:33] Speaker 05:
Do you mean by saying that to say something what I think feels different to me, which is that you have a word in the statute that might have a broad meaning and in fact clearly does have a broad meaning context free, but that is argued to have a context specific meaning reaching only a subset of

[00:34:58] Speaker 05:
which is just, modification is plainly a neutral term.

[00:35:01] Speaker 05:
The question is whether in context it is, it is reading on meant to apply only to a narrower thing.

[00:35:10] Speaker 05:
Both are explicit.

[00:35:12] Speaker 05:
That is the statute is explicit in using modification.

[00:35:15] Speaker 05:
Do you think that we have to find, or do you think we do not have to find?

[00:35:20] Speaker 05:
that the fair reading of the statute as limited to the subset of liberalizing measures or your other provision, your other statutory arguments as well, have to be clear or are we, or do you?

[00:35:38] Speaker 00:
Right.

[00:35:38] Speaker 00:
Your honor, as this court said in Transpacific, it's this court's job to interpret statutory text in.

[00:35:46] Speaker 00:
So I think if this court decides that that's what the statute means, that's what the statute means.

[00:35:50] Speaker 00:
And in regard to this determination requirement, I don't think anything could be clearer, your argument.

[00:35:55] Speaker 00:
Make a determination that the social and economic benefits outweigh the costs.

[00:36:00] Speaker 00:
That is a very specific requirement.

[00:36:02] Speaker 00:
I can't think of clearer language.

[00:36:04] Speaker 00:
Thank you, counsel.

[00:36:05] Speaker 00:
Thank you, your honor.

[00:36:07] Speaker 03:
Gerland will give you five minutes for a bottle since the other side went over.

[00:36:12] Speaker 02:
Thank you, Your Honors.

[00:36:14] Speaker 02:
I'd like to pick up right where counsel left off with this cost benefit issue.

[00:36:19] Speaker 02:
I think there are two pretty significant flaws in counsel's argument on that front.

[00:36:25] Speaker 02:
The first is, right at that, did the president

[00:36:28] Speaker 02:
violate an explicit statutory mandate argument.

[00:36:32] Speaker 02:
There is not a word about cost-benefit analysis in Section 2254B1B.

[00:36:36] Speaker 02:
The appellees are implying that from other provisions of the statute, but there's a key provision of the statute that they don't refer to.

[00:36:45] Speaker 02:
This is particularly Section 2253A2.

[00:36:48] Speaker 02:
That is the provision that actually outlines for the president what the president has to take account of in a cost-benefit analysis.

[00:36:58] Speaker 02:
And that statute starts with the words, in determining what action to take under paragraph one,

[00:37:05] Speaker 02:
dot dot dot of this section.

[00:37:07] Speaker 02:
So even there, it's not in the provision we're talking about.

[00:37:12] Speaker 02:
And the provision that talks about what the president has to take into account is referring back to paragraph one of the section, which is the president's initial action, the overall determination.

[00:37:20] Speaker 02:
So we would dispute the trial court's incorrect assumption that 2254 requires some new cost benefit analysis, certainly not amounting to whatever the president is required to do in the first instance.

[00:37:34] Speaker 02:
That's flaw number one.

[00:37:36] Speaker 02:
The second flaw in the cost-benefit argument goes back in some ways to this court's decision in Trans-Pacific.

[00:37:42] Speaker 02:
The president said that the bifacial exclusion was impairing the effectiveness of the measure he imposed and that it was necessary to make these modifications.

[00:37:51] Speaker 02:
Well, this court held in Trans-Pacific

[00:37:54] Speaker 02:
that context always includes evident purpose and evident purpose always includes effectiveness.

[00:38:01] Speaker 02:
So that's just buttressing what the trial court found, which is it's clear from the language that the president had related this back to the cost benefit determination that he'd made in the first instance and was saying

[00:38:12] Speaker 02:
My safeguard measure is being undermined.

[00:38:15] Speaker 02:
It's having a positive effect.

[00:38:18] Speaker 02:
There's been positive adjustment, but it's being undermined by this loophole we created and we need to shut it.

[00:38:23] Speaker 05:
Can I interrupt you and return you to the main issue?

[00:38:27] Speaker 05:
Sure.

[00:38:27] Speaker 05:
Why isn't it the case that particularly in light of the existence where I'm now back at 2254B, particularly in light of the existence of the circumvention provision,

[00:38:42] Speaker 05:
And what I guess I'm seeing more clearly, perhaps, than I was when coming in, that it actually makes sense to view all of A1 as about liberalizing measures, including A1B.

[00:39:04] Speaker 05:
Why in that circumstance does it not make sense to return back to the very first question here, that modification, though plainly on its face, not unidirectional, here is unidirectional?

[00:39:23] Speaker 02:
Well, again, modification, even in that provision in B, is not

[00:39:29] Speaker 02:
I want to

[00:39:44] Speaker 02:
describe something that's ostensibly outside the measure, not by an exclusion, but would not have been covered.

[00:39:50] Speaker 02:
If this had not been, your honor's initial hypothetical was if the president had not covered this, initially then you say, oh, this was outside the measure, but there's circumvention using this near product and we can cover that.

[00:40:02] Speaker 05:
So you think the circumvention provision would in fact allow for something that would be a phase up

[00:40:10] Speaker 02:
Well, that provision says additional action and not modification.

[00:40:14] Speaker 05:
The answer could be yes.

[00:40:15] Speaker 02:
No, it can.

[00:40:16] Speaker 02:
I don't think it necessarily has to, but it can.

[00:40:20] Speaker 02:
This is different, right?

[00:40:21] Speaker 02:
What's going on here is, I think, the important contrast between B1A and B1B.

[00:40:27] Speaker 02:
B1A is undoubtedly solely liberalizing.

[00:40:30] Speaker 02:
It only allows for reduction and termination.

[00:40:32] Speaker 02:
There's a contrast where Congress allowed for something more in B1B.

[00:40:37] Speaker 02:
And it doesn't require circumvention.

[00:40:39] Speaker 02:
It requires modification consistent with the Supreme Court's view of that term in MCI, a limited change.

[00:40:45] Speaker 02:
And so what Congress is saying is that we don't know what the circumstances that might come up after the midterm report are.

[00:40:53] Speaker 02:
But we are giving the president the authority to make limited changes to the safeguard

[00:40:59] Speaker 02:
Again, context always includes evident purpose, and evident purpose always includes effectiveness.

[00:41:05] Speaker 02:
And so the circumstances here.

[00:41:06] Speaker 05:
So I had come into the argument with the idea, which I think perhaps was not

[00:41:13] Speaker 05:
quite right, that at least in the ordinary course, when domestic industry comes in and says, I'd like a change, one would presume they want more protection, not less protection.

[00:41:26] Speaker 05:
In which case, that as a contextual matter would seem to lend a fair bit of support to the idea that modification can mean anti-liberalizing measures.

[00:41:39] Speaker 05:
Can you address, and I guess I'm told that that's, that view is, it's not a fair picture of the world.

[00:41:49] Speaker 02:
Sure.

[00:41:49] Speaker 02:
We respectfully disagree with Appellant's comments on that.

[00:41:52] Speaker 02:
I don't think it's unheard of that the domestic industry would request less protection.

[00:41:56] Speaker 02:
It would be the vast, vast minority of the time that the domestic industry is going to come in.

[00:42:01] Speaker 02:
And their notion that the idea of has made in B1B refers to a completed action is, I think, lacking on a couple fronts.

[00:42:11] Speaker 02:
But even just textually, if Congress said not just termination, but reduction, modification, and termination, and also has a provision that's an extension provision where

[00:42:21] Speaker 02:
After you've taken some reduction, modification, or determination under 2254C, you could then ultimately choose to extend the safeguard.

[00:42:29] Speaker 02:
It's clearly not only talking about circumstances where the domestic industry's adjustment has been completed, and they just want less relief.

[00:42:39] Speaker 02:
And the circumstances here clearly demonstrate why that's not going to happen.

[00:42:44] Speaker 03:
So I think the word termination is appropriate here.

[00:42:48] Speaker 03:
Time's up.

[00:42:48] Speaker 03:
The case is submitted.

[00:42:50] Speaker 02:
Thank you, Your Honor.