A U.S. Court of International Trade judge on Wednesday shredded the government's attempt to justify its use of nitrogen price data from Thailand to value the product in Chinese solar cells, remanding the agency's determination for a fourth time.

Judge Claire R. Kelly's order gave the U.S. Department of Commerce 60 days to once again either change its calculations or attempt to explain why it used Thailand as a surrogate country for valuing the nitrogen imports used in the production of solar cells in two administrative reviews of anti-dumping tariffs on Chinese solar cells. The CIT ruling follows a remand from the Federal Circuit last year.

Shipments to Thailand accounted for less than 1% of nitrogen imports to potential surrogate countries, and its average price — $11 per kilogram — came in more than 84 times higher than $0.13, the price of nitrogen imports to Romania and Bulgaria, the countries that received the vast majority of comparable nitrogen imports.

"The Court of Appeals made clear that it is not reasonable to select a price that is consistent with a fraction of a percent of imports and thousands of percent higher than 99% of imports solely because at least one importer in similarly situated countries, under unknown circumstances, paid a higher price," the judge said.

Judge Kelly's twin rulings addressed two consolidated appeals led by Changzhou Trina Solar Energy Co. Ltd. and Canadian Solar International Ltd., two firms with solar cell manufacturing outfits in China that served as mandatory respondents in Commerce's second and third administrative reviews of the anti-dumping tariffs on solar cells from China.

She initially upheld the government's nitrogen calculations when the case was first appealed to her court, but embraced the Federal Circuit's reasoning on remand.

Judge Kelly also rejected Commerce's argument that the European importers' price was so much lower because their nitrogen came from nearby countries that were willing to negotiate favorable deals, saying that hypothesis was unsupported by any record evidence. Nor was Commerce's theory that shorter transport drove the costs down for Romania and Bulgaria, according to the judge.

To the contrary, the nitrogen Thailand imported all the way from Italy was half the price of its imports from neighboring Malaysia, Judge Kelly said, citing data supplied by the petitioner.

The government's claim that Thailand imported purer nitrogen than the bulk importing countries was similarly unavailing in the judge's view, with only a Wikipedia article to back it up.

"Commerce itself admits that 'There is no record evidence that Thailand imported an anomalous type, form, or purity of nitrogen during the [period of review],'" she found.

The agency's attempt to explain why it used Thai import data published by the Global Trade Atlas when those numbers contradicted import data from the U.S. International Trade Commission was also "speculative" and lacking in evidence, she concluded, dismissing the government's theory that one body might have factored in such costs as insurance, shipping and customs delays while the other did not.

"However, although these discrepancies may explain minor differences, it is unreasonable to conclude that they reconcile the 'admitted inconsistencies' noted by the Court of Appeals," she said.

Counsel for Changzhou Trina and Canadian Solar declined to comment Wednesday. Representatives for Commerce did not immediately respond to inquiries from Law360.

Changzhou Trina Solar Energy Co. Ltd. and consolidated plaintiffs in the second administrative review are represented by Robert G. Gosselink, Jonathan M. Freed and Jarrod M. Goldfeder of Trade Pacific PLLC.

Canadian Solar and consolidated plaintiffs in the third administrative review and plaintiff-intervenors in the second administrative review are represented by Craig A. Lewis, Jonathan T. Stoel and Lindsay K. Brown of Hogan Lovells.

The government is represented in both cases by Tara K. Hogan of the U.S. Department of Justice's Commercial Litigation Branch and by Brendan S. Saslow of the U.S. Department of Commerce's Office of the Chief Counsel for Trade Enforcement and Compliance.

The cases are SolarWorld Americas Inc. v. United States, case number 1:16-cv-00134, and Canadian Solar International Limited et al. v. United States, case number 1:17-cv-00173, both in the U.S. Court of International Trade.

Source: Law360