As we reported here, on August 16 a group of U.S. companies called the American Solar Manufacturers Against Chinese Circumvention (A-SMACC) filed anti-circumvention petitions related to AD/CVD orders that had been imposed in December 2012 on photovoltaic cells from China. The Commerce Department recently rejected the request because the petitioners did not disclose their identities. (A-SMACC had asked not to disclose its members' identities in order to avoid retaliation by China).

In a decision issued on November 10, the Commerce Department explained its rejection by stating that "[w]e have reviewed A-SMACC’s response to Commerce’s request for additional information and have determined, for the reasons explained below, that A-SMACC’s designation of its members’ names as business proprietary information is unwarranted and that those names should be publicly disclosed in A-SMACC’s requests for circumvention inquiries."

Commerce further stated that "not disclosing A-SMACC members’ names publicly hampers interested parties from fully commenting on the requests for circumvention inquiries and may hamper them from commenting on certain issues that could arise if Commerce were to initiate circumvention inquiries."

It therefore said that "we will not consider, and we are rejecting, A-SMACC’s August 16, 2021, requests for circumvention inquiries."

The petitioners in the case responded by noting that they are considering their options, "including but not limited to refiling a petition satisfying the Commerce Department’s concerns":

The members of A-SMACC are disappointed by the Commerce Department’s decision last week in the solar circumvention proceedings. We strongly disagree with Commerce’s rationale for denying proprietary treatment of our identities. The U.S. Government is well aware of the real risk of retaliation that A-SMACC members, like all U.S. companies, face from the Chinese government and Chinese competitors. It is unfortunate that we are being forced to choose between revealing our identities and exercising our trade remedy rights.

With that in mind, we are evaluating all options available to us under the trade remedy and other laws, including but not limited to refiling a petition satisfying the Commerce Department’s concerns. We urge the Commerce Department and the Administration to also consider all options to address unfair trade in the solar energy sector, including but not limited to self-initiation of further circumvention actions and trade cases. We stand ready to work with the Administration to strengthen U.S. manufacturing, R&D and supply chains in the critically important solar sector, while meeting our nation’s renewable energy goals. Above all, we will not cede monopoly power to China and to Chinese-owned companies on solar products. U.S. solar manufacturing is recovering, and the future is bright, but we should not have to compete with the unfair trade practices of China and Chinese-owned companies. We should ensure that America, which invented solar technology, leads the next generation of solar manufacturing, R&D, and deployment.