AD/CVD Circumvention Allegers Can't Keep Identities Confidential, Importer Says

A group of companies requesting an anti-circumvention inquiry related to antidumping and countervailing duties on Chinese solar cells can’t keep their identities secret, an importer said in comments to the Commerce Department filed Aug. 24.

The American Solar Manufacturers Against Chinese Circumvention (A-SMACC) filed three requests on Aug. 16 alleging that solar cell producers are circumventing AD/CV duties on Chinese solar cells by taking nearly complete Chinese cells and shipping them to Malaysia, Thailand and Vietnam, where they undergo minor processing before shipment to the U.S. The coalition requests Commerce extend Chinese solar cell duties to such merchandise.

But each of the three requests redacts the names of the coalition’s members. “A-SMACC requests business proprietary treatment for the identities of the companies that are part of A-SMACC, as disclosure of this information could lead to retribution against these companies and cause substantial harm,” the requests explained.

There is no basis for keeping that identifying information confidential, and doing so could impede any defense against their allegations, said NextEra Energy and Florida Power & Light, represented by Matthew Nicely of Akin Gump.

“The names of A-SMACC’s individual members do not meet the Department’s standards for business proprietary treatment,” NextEra said. “The names of petitioners constitute general identifying information of litigants in a legal proceeding, and do not relate to the internal business operations of these entities,” it said. The reason given by the coalition -- potential retribution -- is “baseless speculation and falls far short of meeting the Department’s regulations allowing business proprietary treatment only when the release of the information “would cause substantial harm to the competitive position of the submitter,” NextEra said.

And there is “no precedent for the Department treating the names of individual petitioning companies as proprietary in an anti-circumvention inquiry,” the letter said. "Here, the Department has already imposed AD and CVD orders on [solar] cells and modules from China pursuant to an investigation in which the petitioner remained fully public. Moreover, in every administrative review and other segment since the imposition of the AD and CVD orders, the petitioner or petitioners have publicly revealed their identities and fully participated in the cases."

By keeping the identities secret, “the petitioners have prevented interested parties and their prospective counsel from knowing the identities of the adverse parties, which in turn hampers lawyers’ abilities to conduct conflict checks that would normally precede the lawyer’s representation of a client.”

If a lawyer belatedly discovered that he or she had a conflict that would require them to withdraw as counsel, it could seriously disrupt the defense, they argued, given the short deadlines in anti-circumvention inquiries. “By imposing delays in interested parties’ retention of counsel, petitioners have severely handicapped other interested parties during this critical stage of the proceedings,” the letter said.