Additional Info Still Falls Short of Initiation Bar for Anti-Circ Cases on Solar Cells, Importers Say

“None of the information provided by [American Solar Manufacturers Against Chinese Circumvention] alters the fact that it has not presented sufficient justification for the Department to initiate anti-circumvention proceedings, nor has it shown that it would be appropriate to initiate anticircumvention proceedings in light of the substantial harm it would cause to the industry and to the Biden Administration’s policy objectives,” the response said. “Moreover, the supposed justifications that A-SMACC offers for the Department to continue treating the identity of its members as proprietary do not address the fact that interested parties are deprived of their due process rights to fully defend their interests.”

Commerce had requested the additional information from the A-SMACC in late September (see 2109300075), amid concerns over A-SMACC’s request for confidential treatment of its members. The coalition says that disclosing their identities could result in retribution.

“China has recently issued several measures to authorize sanctions or other economic retaliation against foreign entities seen to be acting contrary to Chinese interests,” a Wiley Rein spokesperson said at the time A-SMACC filed its Oct. 13 response. “This case implicates the strategic economic priorities articulated at the highest levels of the Chinese government and is therefore likely to trigger retaliation,” which could “devastate what remains of the U.S. solar industry,” she said.

NextEra and FP&L call those allegations “sweeping,” and noted that the identities of petitioners in all other solar cells cases remain public. “There is nothing special about this case that warrants anonymity,” their response brief said.

Indeed, that anonymity is hindering NextEra's and others’ ability to argue against initiation of the anti-circumvention inquiries. First, A-SMACC is “shielding its members from any arguments that they do not have ‘clean hands’ in requesting an investigation into the identified companies in Malaysia, Thailand, and Vietnam by preventing those with industry knowledge from commenting on the members’ operations,” the response brief said. While lawyers for FP&L, NextEra and Chinese solar exporters have access to the confidential identities, they can’t share them with their clients, who have intimate knowledge of the solar industry.

“More broadly, A-SMACC’s request allows its members to lodge unwarranted attacks against other participants while immunizing itself from scrutiny,” the response brief said. “For example, in its submission, A-SMACC fully brackets three full paragraphs before publicly asserting that the information contained therein ‘points to a systematic, high-pressure campaign to unmask the petitioners.’ These paragraphs, which are hidden from public scrutiny, show nothing of the sort.”

In its heavily redacted submission, A-SMACC points to several instances where China has retaliated against those it has deemed to be economic threats. For example, following the filing of the original solar cells petitions in 2011, SolarWorld, the petitioner, was targeted by Chinese government hackers. Those hackers stole documents valuable to Solar World’s Chinese competitors, as well as communications between SolarWorld and its lawyers in the antidumping and countervailing duty investigations. In another instance, China refused shipments from major apparel companies after they issued public statements on forced labor in Xinjiang.

And recent legal developments in China have formalized mechanisms for retaliation against those deemed counter to China’s business interests, the A-SMACC said. In September 2020, China said it may place companies on its Unreliable Entity List in response to actions that “cause damage to the legitimate rights and interests” of enterprises. And as of January 2021, new regulations provide for retaliation when the extraterritorial application of foreign laws “unjustifiably prohibits or restricts … organizations of China from engaging in normal economic, trade and related activities” with a third country. The latter regulations provide for a private right of action, A-SMACC said.

“China's history of resorting to economic coercion in response to unfavorable foreign policy developments, its previous attacks on individual firms pursuing trade remedies in this industry, its recent expansions of legal and extra-legal means to retaliate, and the importance of the industrial policy strategies that gave rise to this case all suggest that retaliation is likely if not inevitable if A-SMACC's members are publicly identified,” the solar producers group said.