Commerce Denies Solar Cell Producers' Bid to Stay Anonymous in Anti-Circ Inquiry

The Commerce Department denied a group of domestic solar panel manufacturers' bid to remain anonymous in their requests for anti-circumvention inquiries on solar cells from Malaysia, Vietnam and Thailand, denying the requests while noting that the manufacturers may revive the requests if they agree to make their identities public. In a letter sent Nov. 10, Commerce said anonymous treatment is "unwarranted" and that the company's names should be publicly disclosed if the anti-circumvention inquiries are to proceed.

Noting its authority to reject confidential information when it finds confidentiality unwarranted, Commerce "will not consider, and we are rejecting, A-SMACC’s August 16, 2021, requests for circumvention inquiries," the agency said. "Within two business days of receiving this letter, A-SMACC may take the action described in 19 CFR 351.304(d)(1)(ii)," Commerce said, citing the provision that allows for parties that have their submissions rejected to "agree to have the information in question treated as public information."

The group of producers, dubbed A-SMACC, which is the American Solar Manufacturers Against Chinese Circumvention, sought to remain anonymous due to fears that disclosing their identities could result in retribution from China. Questioning this rationale, Commerce requested additional information from A-SMACC in late September (see 2109300075).

After reviewing this information, Commerce said that for all interested parties to fully comment on the requests for an anti-circumvention inquiry, the names of the A-SMACC members should be made public. "Although attorneys for other interested parties have access to the names of A-SMACC’s members under administrative protective order, their ability to comment, or provide evidence regarding the members’ interested party status, should they wish to do so, is hampered by the proprietary designation," the letter said. "Due to the proprietary designation, counsel for other interested parties cannot consult with their clients about the A-SMACC members’ role in the U.S. market and their operations."

Commerce also expressed trepidation over what anonymity would bring to the prospect of an anti-circumvention inquiry initiated on individual companies, rather than on a country-wide basis. Since A-SMACC has actually requested company-specific circumvention reviews, any existing business relationships between A-SMACC members and potential companies under review shouldn't play a role in determining which companies are covered by the review, Commerce said. "The proprietary designation of members’ names may prevent Commerce from obtaining and considering such information."

Importers have already spoken out to Commerce about the difficulties that anonymity brings to these types of proceedings (see 2110260068). NextEra, for instance, claimed that the anonymity hinders its, and others', ability to argue against initiation of the inquiries. While the NextEra attorneys can see the names of the alleging parties, their clients are not privy to such information.