Slip Op. 19-150
UNITED STATES COURT OF INTERNATIONAL TRADE

SHANDONG YONGTAI GROUP CO., LTD., Plaintiff,
and QINGDAO SENTURY TIRE CO., LTD., SENTURY TIRE USA INC., SENTURY (HONG KONG) TRADING CO., LIMITED, PIRELLI TYRE CO., LTD., PIRELLI TYRE S.P.A., and PIRELLI TIRE LLC, Consolidated Plaintiffs,

v. UNITED STATES,
Defendant. Before: Jennifer Choe-Groves, Judge
Consol. Court No. 18-00077

OPINION [Sustaining in part and remanding in part the U.S. Department of Commerce’s Final Results in the antidumping duty administrative review of ce rtain passenger vehicle and light truck tires from the People’s Republic of China.] Dated: November 27, 2019 Jordan C. Kahn, Grunfeld Desiderio Lebowitz Si lverman & Klestadt, LLP, of Washington, D.C., argued for Plaintiff Shandong Yongtai Group Co., Ltd. With him on the briefs were Ned H. Marshak and Brandon M. Petelin. Dharmendra N. Choudhary, Grunfeld Desiderio Le bowitz Silverman & Klestadt, LLP, of New York, N.Y., argued for Consolidated Plaintiffs Qingdao Sentury Tire Co., Ltd., Sentury Tire USA Inc., and Sentury (Hong Kong) Trading Co., Limited. With him on the briefs were Andrew T. Schutz, Brandon M. Petelin, Jordan C. Kahn, and Ned H. Marshak. Elaine F. Wong also appeared.Consol. Court No. 18-00077 Page 2
Daniel L. Porter and James P. Durling, Cu rtis, Mallet-Prevost, Colt & Mosle LLP, of Washington, D.C., argued for Consolidated Plain tiffs Pirelli Tyre Co., Ltd., Pirelli Tyre S.p.A., and Pirelli Tire LLC. With them on the briefs were Tung A. Nguyen, Kimberly Reynolds, and Gina Colarusso. Ashley Akers, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., argued for Defend ant United States. With her on the briefs were Joseph H. Hunt, Assistant Attorney General, J eanne E. Davidson, Direct or, and Patricia M. McCarthy, Assistant Director. Of counsel was Ayat Mujais, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Departme nt of Commerce. Of counsel on the briefs were David Campbell and Jessica R. DiPietro, Atto rney-Advisor, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce.
Choe-Groves, Judge: This action arises from the U.S. Department of Commerce’s (“Commerce”) administrative review of certain pa ssenger vehicle and light truck tires (“PVLT”) from the People’s Republic of China (“China” or “PRC”). Certain Passenger Vehicle and Light Truck Tires From the People’s Republic of China, 83 Fed. Reg. 11,690 (Dep’t Commerce Mar. 16, 2018) (final results of antidumping duty adminis trative review and fina l determination of no shipments) (“Final Resu lts”); see Certain Passenger Vehicle and Light Truck Tires from the People’s Republic of China: Issues and Deci sion Memorandum for the Final Results of the 2015–2016 Antidumping Duty Administrative Review, PD 502 (Mar. 9, 2018) (“Final IDM”). Before the court are the motions for judgment on the agency record of Plaintiff Shandong Yongtai Group Co., Ltd. (“Plaintiff,” “Shandon g Yongtai,” or “Shandong Yongtai Group”), Consolidated Plaintiffs Qingdao Sentury Tire Co., Ltd., Sentury Tire USA Inc., Sentury (Hong Kong) Trading Co., Limited (collectively, “Sentury ”), and Consolidated Plaintiffs Pirelli Tyre Co., Ltd., Pirelli Tyre S.p.A., Pirelli Tire LLC (colle ctively, “Pirelli”). For the reasons that follow, the court sustains in part and remands in part the Final Results to Commerce for further consideration.Consol. Court No. 18-00077 Page 3

ISSUES PRESENTED This case presents the following issues:
1. Whether Commerce’s notice and initiation of the administrative review as to Plaintiff was in accordance with the law;
2. Whether Commerce’s determination not to gr ant a separate rate as to Shandong Yongtai Chemical Co., Ltd. was s upported by substantial evidence;
3. Whether Commerce’s calculation of a value-added tax (“VAT”) deduction to Sentury’s U.S. price was supported by substan tial evidence and in accordance with the law;
4. Whether Commerce’s decision not to make an adjustment for the Export Buyer’s Credit Program (“EBCP”), as accounted for in the companion countervailing duty administrative review, was supported by substantial evid ence and in accordance with the law; and
5. Whether Commerce’s determination that Pirelli was ineligible for a separate rate and Commerce’s assignment of the China-wide entity rate wa s supported by substantial evidence and in accordance with the law.
PROCEDURAL HISTORY Commerce published the Final Results of the administrative review of PVLT from China on March 16, 2018. Final Results at 11,690. Plai ntiff initiated this action on April 12, 2018, challenging certain aspects of Commerce’s Final Results. See Summons, Apr. 12, 2018, ECF No. 1; Compl. ¶ 1, Apr. 12, 2018, ECF No. 6 (“Compl.”). The court entered a statutory injunction on April 16, 2018. See Order for Stat utory Inj. Upon Consent, Apr. 16, 2018, ECF No. 10. The administrative record was filed on May 29, 2018. Ltr. from David W. Campbell, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department ofConsol. Court No. 18-00077 Page 4

Commerce, to Mario Toscano, Clerk of the Court, U.S. Court of International Trade, May 29, 2018, ECF No. 15. The court consolidated this case with Court Numbers 18-00079 and 18- 00080 on June 14, 2018. Order, Jun. 14, 2018, ECF No. 17. Shandong Yongtai, Sentury, and Pirelli m oved for judgment on the agency record. Plaintiff’s Mot. for J. on the Agency R., Oct. 2, 2018, ECF No. 20 (“Shandong Yongtai’s Mot.”); Consol. Pl. Sentury’s Mot. for J. on the Agency R. Pursuant to Rule 56.2, Oct. 2, 2018, ECF No. 21 (“Sentury’s Mot.”); Mot. for J. on the Agency R., Oct. 3, 2019, ECF No. 24 (“Pirelli’s Mot.”). The court stayed this case following the la pse in appropriations for the Department of Justice on January 8, 2019. Order, Jan. 8, 2019, EC F No. 32. Defendant moved to continue the stay following restoration of appropriations on January 30, 2019. Status Report and Request for Continuation of Stay, Jan. 30, 2019, ECF No. 33. The court denied Defendant’s motion and lifted the stay on January 30, 2019. Second Am. Scheduling Order, Jan. 30, 2019, ECF No. 34. Defendant responded. Def.’s Mem. in O pp’n to Pls.’ Rule 56.2 Mots. for J. Upon the Agency R., Mar. 4, 2019, ECF No. 37 (“Def.’s Res p.”). Shandong Yongtai, Sentury, and Pirelli replied. Reply Br. of Pl. Sh andong Yongtai Group Co., Ltd. (Formerly Known as Shandong Yongtai Chemical Co., Ltd.), Apr. 19, 2019, ECF N o. 44 (“Pl.’s Reply”); Reply Br. of Consol. Pl. Sentury, Apr. 19, 2019, ECF No. 45 (“Sentury’ s Reply”); Reply Br. of Consol. Pls. Pirelli Tyre Co., Ltd., Pirelli Tyre S.p.A., and Pirelli Tire LLC, Apr. 19, 2019, ECF No. 46 (“Pirelli’s Reply”). The joint appendix was filed on May 3, 2019. Joint App’x to Opening Resp., and Reply Brs. Regarding Pls.’ Mot. for J. on the Agency R. Pursuant to Rule 56.2, May 3, 2019, ECF No. 48. Sentury filed notices of supplemental authority on May 17, 2019, and May 24, 2019. Notice of Supplemental Authority, May 17, 2019, ECF No. 53; Notice of SupplementalConsol. Court No. 18-00077 Page 5
Authority, May 24, 2019, ECF No. 54. The court heard oral arguments on June 18, 2019. Oral Argument Hr’g, Jun. 18, 2019, ECF No. 61.
JURISDICTION AND STANDARD OF REVIEW The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2012) and 19 U.S.C. §§ 1516a(a)(2)(A)(i)(I) and (B)(iii). The court wi ll hold unlawful any determination, finding, or conclusion found to be unsupported by substantial evidence on the record, or otherwise not in accordance with the law. 19 U.S.C. § 1516a(b)(1)(B)(i).
ANALYSIS
I. Notice and Initiation of the Administra tive Review as to Shandong Yongtai
A. Background Plaintiff was formed under the name Shandong Yongtai Chemical Group Co., Ltd. (“Shandong Yongtai Chemical Group”) in Augu st, 1995. Shandong Yongtai Mot. 5; Shandong Yongtai Separate Rate Appl., Ex. 7, Art. 1, PD 149 (Nov. 14, 2016) (“Shandong Yongtai SRA”). Plaintiff changed the company’s name to Shandong Yongtai Chemical Co., Ltd. (“Shandong Yongtai Chemical”) in 2012. Commerce initiated antidumping and countervailing duty inves tigations into PVLT from China on July 21, 2014. Certain Passenger Vehicl e and Light Truck Tires from the People’s Republic of China, 79 Fed. Reg. 42,292 (Dep ’t Commerce July 21, 2014) (initiation of antidumping duty investigation); Certain Pass enger Vehicle and Light Truck Tires from the People’s Republic of China, 79 Fed. Reg. 42,285 (D ep’t Commerce July 21, 2014) (initiation of countervailing duty investigation). Plaintiff participated in th e investigation and sought a separate rate. See Certain Pa ssenger Vehicle and Light Truck Ti res from the People’s RepublicConsol. Court No. 18-00077 Page 6
of China, 80 Fed. Reg. 4,250, 4,251–52 (preliminary determination). Commerce issued an antidumping duty order as to PVLT from China on August 10, 2015. See Certain Passenger Vehicle and Light Truck Tires from the People’ s Republic of China, 80 Fed. Reg. 47,902 (Dep’t Commerce Aug. 10, 2015) (“AD Order”). Commerce assigned Plaintiff, identified as Shandong Yongtai Chemical, a sepa rate rate in the AD Order. Id. at 47,905–47,906. After Commerce issued the AD Order, Plaintiff changed its name to Shandong Yongtai Group Co., Ltd. (“Shandong Yongtai Group”) via an amendment to the company’s Articles of Association (“AOA”). Shandong Yongtai SRA, Exs. 3–7; see also Pl.’s Br. 6. The name change became effective on January 20, 2015 when the ne w business license was issued. Shandong Yongtai SRA, Exs. 3 & 7. Shandong Yongtai Group and Shandong Yongtai Chemical shared the same business license registration number. See id. 1 Commerce published the notice to request an administrative review on August 5, 2016. Antidumping or Countervailing Duty Order, Finding , or Suspended Investigation; Opportunity to Request Administrative Revi ew, 81 Fed. Reg. 51,850 (Dep’t Commerce Aug. 5, 2016). Shandong Yongtai, identified as “Shandong Yongtai Group Co., Ltd. (formerly Shandong Yongtai Chemical Co., Ltd.),” f iled a request for administrative review. Ltr. from Gaopeng & Partners to Commerce at 1, PD 10 (Aug. 22, 2016 ) (“Pl. Request for Ad ministrative Review”)

1 Plaintiff offers the following summary of its name changes and the corresponding periods each name was in use:

Shandong Yongtai Mot. 1.Consol. Court No. 18-00077 Page 7
(emphasis omitted); see also Ltr. from Stewart and Stewart to Commerce, Attach. 1 at 7, PD 24 (Aug. 31, 2016). Commerce published the initiation notice fo r antidumping and countervailing duty administrative reviews with August annivers ary dates on October 14, 2016. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 81 Fed. Reg. 71,061 (Dep’t Commerce Oct. 14, 2016) (“October Initiation Notice”). In that notice, Commerce initiated the first administrative review of the antidumping duty order and findings for the period of January 27, 2015 to July 31, 2016. October Initiation Notice, 81 Fed. Reg. at 71,065–71,066. Commerce identified “Shandong Yongtai Group Co., Ltd. (for merly known as Shandong Yongtai Chemical Co., Ltd.)” in the October Initiation Notice. Id. During the period of review, Plaintiff used both the old name, Shandong Yongta i Chemical Co., Ltd., and the new name, Shandong Yongtai Group Co., Ltd., in sales and entry documents wh en exporting PVLT from China. See Case Brief of Shandong Yongtai Group Co., Ltd. (form erly known as Shandong Yongtai Chemical Co., Ltd.), 14, PD 481 (Feb. 8, 2018). Commerce subsequently included “Shandong Yo ngtai Chemical Co., Ltd.,” (not the new name, “Shandong Yongtai Group Co., Ltd.”) in the administrative review of PVLT for the period January 27, 2015 to July 31, 2016. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 81 Fed. Reg. 78,778, 77,784 (Dep’t of Commerce Nov. 9, 2016) (“November Initiation Notice”). In the November Initiation Notice, Commerce noted that “[t]he name of this company was listed incorrectly in the initiation notice that published on October 14, 2016 (81 FR 71061). The correct name of the company is listed in this notice.” Id.Consol. Court No. 18-00077 Page 8

B. Legal Framework Under 19 U.S.C. § 1675, when a review of an antidumping duty order by Commerce is requested, Commerce must publish notice of the initiation of an administrative review in the Federal Register. See 19 U.S.C. § 1675(a)(1). Pursuant to 44 U.S.C. § 1507, the filing of a document in the Federal Register is sufficient to give notice of the contents of the document to a person subject to or affected by the docu ment. 44 U.S.C. § 1507; see also 44 U.S.C. § 1505(a)(3).
C. Discussion Plaintiff argues that Commerce did not provide adequate notice of the initiation of the administrative review as to Shandong Yongtai Chemical and that Commerce did not place the November Initiation Notice on the administrativ e record. Pl.’s Br. 17–21; Pl.’s Reply 2–7. Plaintiff contends that, as a re sult, Commerce lacked the authorit y to separately review Shandong Yongtai Chemical in this administrative review. Id. Plaintiff also argues that it lacked notice because the version of the November Initia tion Notice posted on Commerce’s website used “embedded graphics” and the November Initiation Notice was not text-searchable. See Pl.’s Reply 4–7; see also Pl.’s Reply, Addendum 1. De fendant counters that Commerce gave notice in accordance with 19 U.S.C. § 1675(a)(1) by naming Shandong Yongtai Chemical in the subsequent Federal Register notice, and that Plaintiff cannot claim that it was improperly included in the administrative review because Plaintiff submitted a request to be reviewed. Def.’s Resp. 5–6, 10–12. Plaintiff’s arguments are not persuasive. Not only did Plaintiff request its administrative review, but Commerce published initiation notices identifying Plaintiff in the Federal Register.Consol. Court No. 18-00077 Page 9
See Pl. Request for Administrative Review 1–2; October Initiation Notice, 81 Fed. Reg. at 71,065; November Initiation Notice, 81 Fed. Reg. at 78,784. Because Commerce published the initiation notices in the Federal Register as required by 19 U.S.C. § 1675, and publication in the Federal Register is sufficient to give notice under 44 U.S.C. § 1507, the court concludes that Commerce’s notice in the Federal Register and initiation of the administrative review as to Plaintiff was in accordance with the law.
II. Commerce’s Determination Not to Grant Separate Rate Status to Shandong Yongtai Chemical Co., Ltd.
A. Background Plaintiff submitted a single SRA on Novemb er 14, 2016. See Shandong Yongtai SRA 1– 2. In the letter accompanying Plaintiff’s SRA, Plaintiff asserted that the SRA was submitted “[o]n behalf of Shandong Yong tai Group Co., Ltd. (‘Shandong Yongtai’, formerly known as ‘Shandong Yongtai Chemical Co., Ltd.’).” Shandong Yongtai’s SRA 44, PD 149 (Nov. 14, 2016) (emphasis omitted). In response to SR A Section II, Question 1, Plaintiff stated: Name: Shandong Yongtai Group Co., Ltd. (formerly known as ‘Shandong Yongtai Chemical Co., Ltd.”. [sic] It is not ed that the name of the applicant was Shandong Yongtai Chemical Co., Ltd. durin g the period of investigation of the Antidumping Duty Investigation of Cert ain Passenger Vehicle and Light Truck Tires from the People’s Republic of China. The applicant was previously granted separate rate status under the name of ‘Shandong Yongta i Chemical Co., Ltd.’ as part of the final determination/results in the investigation of certain passenger vehicle and light truck tires from Chin a 10/1/13-3/31/14; published in Federal Register 80 FR 47902 (August 10, 2015). The name of the applicant was changed from Shandong Yongtai Chemical Co., Lt d. to Shandong Yongtai Group Co., Ltd. on January 20, 2015. Please refer to the business license before and after the name change in Exhibit 3 for evidence. The Registration No. 370523018069534 on the business license before and after the name change in Exhibit 3 is the same.) Id. at 10. In response to Questi ons 2a and 2b, Plaintiff stated:Consol. Court No. 18-00077 Page 10
2a. Is the applicant identified by any othe r names, such as trade names or ‘doingbusiness-as’ (‘d.b.a.’) names, as a legal matter in the home market, in third countries, or in the United States?[] ___ Yes (complete the chart below, in full)

¥ No

. . . . *2b Is the applicant requesting separate rate status for any of the trade names listed in the table above? . . . Response: Not applicable. Id. at 11. In the Final Results, Commerce granted separa te rate status to Shandong Yongtai Group, but not to Shandong Yongtai Chemical. See Final Results at 11,691–92; IDM at 24–26, 32. Plaintiff argues, inter alia , that (1) Commerce may not conduct a separate rate analysis as to Shandong Yongtai Chemical separately from Shandong Yongtai Group, (2) Plaintiff provided the necessary information to determine that Shandong Yongtai Chemical was entitled to a separate rate, and (3) Commerce may not disregard the content of the SRA simply because Plaintiff did not identify Shandong Yongtai Chem ical in the SRA Secti on II, Question 2. See Pl.’s Br. 18–28. Defendant contends that Co mmerce reviewed both Shandong Yongtai Group and Shandong Yongtai Chemical, and Commerce determined that Shandong Yongtai Chemical was not entitled to separate rate status based on Plaintiff’s re sponses to SRA Section II Question 2a and Question 2b. See Def.’s Br. 12–15. Defendan t further argues that Plaintiff’s SRA lacked sufficient information that showed the separate rate eligibility of Shandon g Yongtai Chemical or that Shandong Yongtai Group was the successor- in-interest of Shandong Yongtai Chemical,Consol. Court No. 18-00077 Page 11
which would extend the separate ra te eligibility to Shandong Yongtai Chemical’s entries. Id. at
16–17.
B. Discussion Defendant’s arguments fail. The court examin es the record as a whole, taking into account both the evidence that justifies and de tracts from an agency’s opinion. See A.L. Patterson, Inc. v. United States, 585 F. App’x 778, 782 (Fed. Cir. 2014). Commerce relies on an isolated reading of Plaintiff’s responses to Qu estions 2a and 2b. Such a reading ignores the immediately preceding context to the questions, in which Plaintiff identified that Shandong Yongtai Group was the same entity as Shandong Y ongtai Chemical. In the letter accompanying Plaintiff’s SRA, Plaintiff stat ed that the SRA was submitted “[ o]n behalf of Shandong Yongtai Group Co., Ltd. (‘Shandong Yongtai’, formerly known as ‘Shandong Yongtai Chemical Co., Ltd.’).” Shandong Yongtai SRA 44. Plaintiff al so identified that Shandong Yongtai Group was the same entity in response to SRA Section II, Question 1. Id. at 53. Although this information was not reported in the Question 2a table, Plaintiff’s answer provides the same information that Commerce seeks to elicit through Question 2a, incl uding whether the other name was covered by the business license, the capacity in which the tr ade name or doing-business-as (“DBA”) name was used, whether the name was used in the pe riod of review, and an identification of what evidentiary support was provided. Commerce’s finding that “[Shandong] Yong tai Group did not submit any documentation in its application showing its former name wa s [Shandong] Yongtai Chemical or regarding the purported name change” is unreasonable and not s upported by substantial evidence. See IDM at 25. As part of the SRA, Plaintiff provided bus iness licenses, its AOA, and amendments to itsConsol. Court No. 18-00077 Page 12
AOA. See Shandong Yongtai SRA Exs. 3–7. Plai ntiff’s SRA exhibits demonstrate that the business license issued to Shandong Yongtai Gr oup shared the same registration number as Shandong Yongtai Chemical’s business license. See id. Plaintiff’s SRA exhibits show the transition in the entity’s name from Shandong Yongtai Chemical Group to Shandong Yongtai Chemical, and to Shandong Yongtai Group Co., Lt d. See id. On this record, Commerce’s position that “[w]hile the [Shandong] Yongtai Gro up’s separate rate app lication had sufficient information to grant the [Shandong] Yongtai Grou p a separate rate, it pr ovided no details with respect to [Shandong] Yongtai Chemical,” is not supported by substantial evidence. The court concludes that Commerce’s conclusion not to grant separate rate status as to Shandong Yongtai Chemical was not supported by substantial evidence. See IDM at 25. The court remands to Commerce for further considerat ion of separate rate status as to Shandong Yongtai Chemical, either inde pendently, or as to whether Shandong Yongtai Group is the successor-in-interest to Shandong Yongtai Chemical.
C. Notice of Deficiencies in Shandong Yongtai’s SRA Shandong Yongtai argues that Commerce violated 19 U.S.C. § 1677m because Commerce did not provide Shandong Yongtai with notice of any deficiencies in its SRA and Commerce was required to use the SRA submitted by Shandong Yongtai to c onfer separate rate status. Shandong Yongtai’s Mot. 16, 28–32; see also 19 U.S.C. § 1677m(d)–(e). Defendant counters that the provisions of 19 U.S.C. § 1677m(d ) do not apply in this case. Def.’s Resp. 19– 22. Under 19 U.S.C. § 1677m(d), if Commerce dete rmines that a submission is deficient, then Commerce must “promptly inform the person submitting the response of the nature of the deficiency and shall, to the exte nt practicable, provide that pers on with an opportunity to remedyConsol. Court No. 18-00077 Page 13
or explain the deficiency in light of the time limits established for the completion of . . . reviews.” 19 U.S.C. § 1677m(d). Pursuant to 19 U.S.C. § 1677m(e), Commerce may not decline to consider information submitted by an interested party which is necessary to a determination but does not meet all of the requirements estab lished by Commerce under certain circumstances. See 19 U.S.C. § 1677m(e). Becau se the court remands fo r reconsideration of Commerce’s denial of Shandong Yongtai’s SRA, the court does not reach this issue.
D. Agency Practice as to Prior Name and Name Variation of Entities Granted Separate Rate Status Shandong Yongtai argues that Commerce contradi cted its agency practice that recognizes separate rates for entities using prior names and minor variations of names of entities granted separate rates. Shandon g Yongtai’s Mot. 16, 32–35; see also SDC Int’l Austl. Pty. Ltd. v. United States, 41 CIT __, 234 F. Supp. 3d 1320, 1321 (2017). Defendant counters that the example cited by Shandong Yongtai invol ved minor changes in punctuati on and capitalization, and did not involve changes involving different words. Def.’s Resp. 24–25. Because the court remands for reconsideration of Commerce’ s denial of Shandong Yongtai’s SRA, the court does not reach this issue.
III. Irrecoverable VAT Adjustment
A. Legal Framework Commerce must reduce the export price a nd constructed export price of subject merchandise by “the amount, if in cluded in such price, of any export tax, duty, or other charge imposed by the exporting country on the exportati on of the subject merchandise to the United States.” 19 U.S.C. § 1677a(c)(2)(B). Pursuant to this provision, Commerce reduces the exportConsol. Court No. 18-00077 Page 14
price in nonmarket economy dumping margin calcu lations by “the amount of export taxes and similar charges, including [VATs] not rebate d upon export.” Methodological Change for Implementation of Section 772(c)(2)(B) of the Tariff Act of 1930, as Amended, In Certain NonMarket Economy Antidumping Proceedings, 77 Fed. Reg. 36,481 (Dep’t Commerce June 19, 2012).
B. Background In the present case, Commerce adjusted Sentury’s U.S. price for irrecoverable VAT. See Final IDM at 12–17. Commerce identified irrecove rable VAT as the portion of the input VAT that was not fully refunded on exportation. 2 See Sentury C&D Questionnaire Resps. 41–45, PD 376 (July 21, 2017) (“Sentury’s Section C&D Re sp.”). Commerce’s irrecoverable VAT calculation methodology included two steps: “(1) determining the irrecoverable VAT on subject merchandise, and (2) reducing the U.S. price by the amount determined in step one.” Final IDM

2 Defendant further explains in its response that: VAT is an indirect, ad valorem, consum ption tax imposed on the purchase or sale of goods. It is levied on the purchase or sa le price of the good, i.e., it is paid by the buyer and collected by the seller for remittance to the government. Thus, a party (1) pays VAT on its purchases of i nputs and raw materials (i.e., input VAT) as well as (2) collects VAT on its sales of their output products (i.e., output VAT). Firms calculate input VAT and output VAT for tax purposes on a company-wide (not transaction-specific) ba sis, and in the case of output VAT, on the basis of all sales to all markets, foreign and domes tic. Firms claim a credit for input VAT paid against the output VAT collected, and remit any remaining output VAT to the government. However, under Chinese law producers in China, in most cases, do not recover (i.e., they are not refunded) the total input VAT they paid. Chinese tax law requires a reduction in or offset to the input VAT that can be credited against output VAT; the amount of tax that may not be exempted or offset is the irrevocable VAT. Def.’s Resp. 81.Consol. Court No. 18-00077 Page 15
at 16. Commerce determined that irrecoverable VAT was “(1) the [Free On Board] FOB value of the exported good, applied to the difference between (2) the standard VAT levy rate and (3) the VAT rebate rate applicable to exported goods.” Final IDM at 16. Commerce noted that “[t]he first variable, export value, is unique to each respondent while the rates in [variable] (2) and [variable] (3), as well as the formul a for determining irrecoverable VAT, are each explicitly set forth in Chinese law and regulations.” Id. Commerce explained that the Chinese VAT schedule indicates that the “standard” VAT rate was seventeen percent, and the VAT rebate for the subject merchandise was nine percent.See IDM at 16 (citing Sentury’s Section C&D Resp. at 42, Sentury’s Section C&D Resp. Exs. C8B and C-8C); see also Def.’s Resp. 77–78. In the Final Results, Commerce “removed from the U.S. price the amount calculated based on the difference between th ese rates (i.e., eight percent) applied to the export sales value.” Fina l IDM at 16; see also Def.’s Resp. 77–78. Sentury avers that “the only VAT Sentury pa ys with respect to export sales is the VAT paid for domestic purchases of inputs us ed to produce tires.” Sentury Br. 10–12.
C. Discussion Sentury argues that Commerce’s deduction for VAT was not authorized by the plain language of the statute, that even if the statute permitted the VAT deduction, the record contradicts Commerce’s interpretation of China’s Circular on Value-Added Tax and Consumption Tax Policies on Exported Goods a nd Services (“Circular 39”), and that Commerce’s methodology for VAT deduction wa s unreasonable and contrary to record evidence. Sentury Br. 5–29; see also Ci rcular 39, Ex. C–8B, bar code 3596327–02 (Jul. 21, 2017) (“Ex. C–8B”).Consol. Court No. 18-00077 Page 16
Defendant responds by further attempting to explain Commerce’s methodology for the VAT deduction at issue in this case. In the a lternative, Defendant requ ests remand to provide further explanation of Commerce’s methodology for calculating irrecoverable VAT under 19 U.S.C. § 1677a(c)(2)(B). Def.’s Resp. 83. In support of Commerce’s methodology, Defenda nt contends that under Chinese law, the irrecoverable VAT, i.e., in Commerce’s terms, th e difference between input and output VAT, “is defined in terms of, and applie s to, total (company-wide) input VAT across purchases of all inputs, whether used in the production of goods for export or domestic consumption” and that “[t]he reduction/offset does not distinguish th e VAT treatment of export sales from the VAT treatment of domestic sales from an input VAT re covery standpoint, for the simple reason that such treatment under Chinese law applies to the company as a whole, not specific markets or sales.” Def.’s Resp. 83. Defe ndant contends that because irrecoverable VAT in China is calculated on the basis of the FOB value of expor ted goods, irrecoverable VAT “can be thought of as a tax on the company . . . that the company would not incur but for the export sales it makes, a tax fully allocable to export sales because the firm under Chinese law must book it as a cost of exported goods.” Def.’s Resp. 83; see al so Circular 39. In this case, Commerce presents the calculation as: “Reduction/Offset = P (P – c) x (T1 – T2),” where “P = (VAT-free) FOB value of export sales; c = valu e of bonded (duty- and VAT-free) imports of inputs used in the production of goods for export; T1 = VAT rate; and T2 = refund rate specific to the export good,” from which a firm must calculate cred itable input VAT by applying the formula “Creditable input VAT = Total input VAT – Reduction/Offset.” Def.’s Resp. 82.Consol. Court No. 18-00077 Page 17

Commerce’s Final Results do not provide a convincing explanation of how VAT, whether or not recoverable upon export, is prope rly the subject of a downward adjustment to U.S. price under 19 U.S.C. § 1677a(c)(2)(B). Th e court remands to Co mmerce for additional explanation of Commerce’s methodology for ca lculating irrecoverable VAT under 19 U.S.C. § 1677a(c)(2)(B). Commerce further asserts that “[t]he record evidence demonstrates that Sentury was not refunded 8 percent of the value of exports of subject merchandi se.” Def.’s Resp. 76–77 (citing P.R. 376 at 42, Exhibits C–8B & C–8C; P.R. 377 at Exhibit C–8C, C–9). Commerce’s statement fails to explain how the cited exhibits show th at Sentury was not refunded eight percent of the value of the exports of subject merchandise. On remand, Commerce s hould provide a detailed explanation of how Commerce applied the record to reach its conclusion that Sentury was not refunded eight percent of the value of the exports of subject merchandise. See Def.’s Resp. 77, 82; see also Qingdao Sentury Tire Co., Ltd. Sections C&D Questionnaire Responses (July 21, 2017) Exhibits C–8C, C–9, C–10, P.R. 375 –78; C.R. 390–409, May 3, 2019, ECF No. 47. The court concludes that Commerce’s Final Results as to VAT are not supported by substantial evidence and are not in accordance wi th the law. The court remands for further explanation consistent with this opinion.
IV. Adjustment for Export Buyer’s Credit Program
A. Background In the counterpart countervailing duty (“C VD”) review, Commerce found that the EBCP constituted a financial contribution and met the specificity requirements of the statute, but Commerce did not make an explicit statement that the EBCP was an export subsidy contingentConsol. Court No. 18-00077 Page 18
upon export performance. Def.’s Resp. 63–64; see Issues and Decision Memorandum for Certain Passenger Vehicle and Light Truck Ti res at 23, C-570-017 (Aug. 31, 2017), available at https://enforcement.trade.gov/frn/summary/p rc/2017-18997-1.pdf (last visited November 27, 2019) (“CVD AR Preliminary Results”). In the Final Results, Commerce granted Se ntury certain double-remedies adjustments pursuant to 19 U.S.C. § 1677f–1(f)(1)(A)–(C), but made no adjustment for the CVD rates applied to the EBCP in the companion CVD ad ministrative review. U.S. Department of Commerce Memorandum to File , Re: Export Subsidy and D ouble-Remedy Adjustments, accompanying Final Results, 1–3, PD 506 (Mar . 9, 2018). Commerce c ontended that it found the EBCP to be countervailable on the basis of adverse facts available (“AFA”) and that Commerce applied CVD rates base d on AFA. Id. at 2. Commerce concluded that without a determination that the EBCP provided an export subsidy in the companion CVD administrative review, Commerce was not required to adjust Sentury’s U.S. prices for the EBCP in the present AD administrative review. Id. at 2–3.
B. Legal Framework A subsidy is countervailable when an author ity provides a financial contribution to a person, a benefit is conferred, and the subsidy is specific, as described in 19 U.S.C. § 1677(5A). 19 U.S.C. § 1677(5)(A)–(B). A subsidy is spec ific if it is an export subsidy, an import substitution subsidy, or a domestic subsidy under 19 U.S.C. § 1677(5A)(A)–(D). Under 19 U.S.C. § 1677(5A)(B), an export subsidy is a subsidy that is, in law or in fact, contingent upon export performance, alone or as one of two or more conditions. 19 U.S.C. § 1677(5A)(B). Pursuant to 19 U.S.C. § 1677a, Commerce is requi red to increase the price used to establishConsol. Court No. 18-00077 Page 19
export price and constructed export price by “t he amount of any countervailing duty imposed on the subject merchandise. . . to offset an ex port subsidy.” 19 U.S.C. § 1677a(c)(1)(C).
C. Discussion Sentury claims that Commerce’s decision to not adjust Sentury’s U.S. price for the EBCP addressed in the companion CVD review was unreas onable and contrary to law. Sentury’s Mot. 2–3, 30; 19 U.S.C. § 1677a(c)(1)(C). First, Sent ury argues that 19 U.S.C. § 1677a(c)(1)(C) does not permit Commerce to decline to make an adjustment under the rationale that a CVD rate was based on AFA. Id. at 31–32; see 19 U.S.C. § 1677a(c)(1)(C). Second, Sentury argues that Commerce improperly determined the EBCP did not qualify for a double-remedy offset because Commerce found the EBCP was an export subsid y in the underlying PVLT investigation. Sentury’s Mot. 36–37. Sentury also contends ther e are no unique facts or situations present in this administrative review that justify deviation from Commerce’s past practices. Id. at 38. Defendant argues that although Commerce applied AFA in the CVD review and Commerce determined that the EBCP was spec ific and constituted a financial contribution, Commerce did not make a finding that the EBCP was an export subsidy within the meaning of 19 U.S.C. § 1677(5A)(B). Def.’s Resp. 63. Defe ndant contends that “when Commerce has not found that a program is an export subsidy within the meaning of 19 U.S.C. § 1677(5A)(B), but has instead, based on the facts ot herwise available with an adverse inference found that the program is specific within the meaning of 19 U.S.C. § 1677(5A), Commerce does not have a basis on which to make an export subsidy adjus tment pursuant to 19 U.S.C. § 1677a(c)(1)(C).” Def.’s Resp. 67. Defendant argues that Commer ce’s practices regarding double-remedy offsetsConsol. Court No. 18-00077 Page 20
changed following the original investigation, and Commerce does not make an adjustment to U.S. price when a subsidy is specific, but not export contingent. Def.’s Resp. 65. Defendant’s arguments are unavailing. Commerce determined that the EBCP met the specificity requirements of the statute. See Def.’s Resp. 63–64; CVD AR Preliminary Results 23. Although Commerce made no ex plicit findings as to export contingency, Commerce stated that “[t]hrough this program, the [Chinese] Ex[ port]-Im[port] Bank provides loans at preferential rates for the purchase of exported goods fro m [China].” CVD AR Preliminary IDM 32. Commerce’s conclusion that the EBCP is specific includes a finding that the program is contingent on export performance in this case, even though Commerce did not explicitly state its reasoning. See Changzhou Trina Solar Energy Co., Ltd. v. United States, 43 CIT __, __, 359 F. Supp. 3d 1329, 1340 (2019). After having made a findi ng of specificity in the counterpart CVD administrative review, which necessarily includes an export subsidy finding, Defendant may not now say that such a finding is lacking simply because Commerce failed to make the finding explicit. Commerce’s dete rmination not to make an adjustment for the ECBP is not supported by substantial evidence and is not in accordance with law. The court remands the Final Results to Commerce for reconsideration of an adjustment for the ECBP in the counterpart CVD review.
V. Commerce’s Determination Not to Grant Separate Rate Status to Pirelli
A. Background Pirelli Tyre was established as a Sino-foreign joint venture between the Dutch subsidiary of Pirelli & C. S.p.A. and Hixih Group in 2005. Pi relli’s Mot. 33; Pirelli Ty re’s Separate Rate Application 16, PD 192–193 (Nov. 17, 2016) (“Pirelli SR A”); Pirelli SRA Atta ch. A. Pirelli & C. S.p.A. was the Italian holding company of the Pirelli Group. Pirelli’s Mot. 32; Pirelli SRAConsol. Court No. 18-00077 Page 21
16–17. Chem China acquired Pirelli S.p.A. in Oc tober 2015. Pirelli’s Mot. 38; Pirelli SRA, Attach. G(3). Chem China is a government-own ed company. See Pirelli’s Mot. 1, 3, 29. Pirelli & C. S.p.A. was delisted from the Milan stock ex change in November 2015. Id. at 50; Pirelli
SRA 2. Pirelli applied for a separate rate in the administrative review. Pirelli’s Mot. 1; Pirelli SRA 1–2. In the Preliminary Results, Commerce determined that Pirelli did not qualify for separate rate status because “there was de facto Chinese government control over the company through Chem China’s ownership of Pirelli S.p.A.” Final IDM at 28; Preliminary IDM 16; U.S. Dep’t of Commerce Mem. re: Preliminary Denial of Separate Rate Status at 2, PD 427 (Aug. 31, 2017). In the Final Results, Commerce noted that “[i]n proceedings involving NME countries, Commerce maintains a rebuttable presumption that all companies within the country are subject to government control and, therefore, should be assessed a single weighted-average dumping margin” and that “Commerce will only grant separate rate status to entities that can demonstrate the absence of both de jure and de facto government control over its export activities.” Final IDM at 27–28. Commerce concluded that Pirelli was not eligible for separate rate status in the Final Results because Pirelli did not demonstrate the absence of both de jure and de facto government control over its expor t activities. Final IDM at 26–28.
B. Legal Framework Commerce has the authority to determine if a country is a nonmarket economy pursuant to 19 U.S.C. § 1677(18). See 19 U.S.C. § 1677(18); see also Sigma Corp. v. United States, 117 F.3d 1401, 1404–06 (Fed. Cir. 1997). In proceedings involving a nonmarket economy, such as China, there is a rebuttable presumption that a ll companies within the country are subject toConsol. Court No. 18-00077 Page 22
government control and should be assigned a si ngle, country-wide antidumping duty rate. See Sigma Corp, 117 F.3d at 1405. An exporter will recei ve the country-wide rate by default unless it affirmatively demonstrates that it enjoys both de jure and de facto independence from the government and receives a separate rate status. See id. The burden of rebutting the presumption of government control rests with the exporter. See id. at 1405–06. The de jure criteria are: (1) an absence of restrictive stipulations asso ciated with an individual exporter’s business and export licenses; (2) any legislative enactments decentralizing control of companies; and (3) any other formal measures by the government decen tralizing control of companies. See Ad Hoc Shrimp Trade Action Comm. v. United States, 37 CIT __, __, 925 F. Supp. 2d 1315, 1320 n. 21 (2013); see also Sparklers From the People’ s Republic of China, 56 Fed. Reg. 20,588, 20,589 (Dep’t Commerce May 6, 1991) (final determination of sales at less than fair value). The de facto criteria are: (1) whether the export prices are set by or are subject to the approval of a government authority; (2) whether the respondent has authority to negotia te and sign contracts and other agreements; (3) whether the responden t has autonomy from the government in making decisions regarding the selection of managemen t; and (4) whether the respondent retains the proceeds of its export sales and makes independent decisions rega rding disposition of profits or financing of losses. See Ad Hoc Shrimp Ac tion Trade Comm., 925 F. Supp. 2d at 1320 n.21; see also Silicon Carbide from the People’s Re public of China, 59 Fed. Reg. 22,585–01, 22,587 (Dep’t Commerce May 2, 1994) (notice of final dete rmination of sales at le ss than fair value).
C. Discussion Pirelli argues that Commerce did not apply the appropriate legal criteria for determining when a Chinese exporter has demonstrated an absence of de facto control to justify separate rateConsol. Court No. 18-00077 Page 23
status. Pirelli’s Mot. 2–3. Pirelli contends that Commerce incorrectly denied Pirelli a separate rate status because Commerce improperly applied the legal criteria for separate rate eligibility by considering only the extent of government owners hip. Pirelli’s Mot. 27. Pirelli also argues that Commerce’s determination of PRC government control was not supported by substantial evidence. Pirelli’s Mot. 27. Defendant argues th at Pirelli’s acquisition by Chem China created a presumption against entitlement to a se parate rate, and th at Pirelli was under de facto control of the Chinese government. Def.’s Resp. 58. 3 Defendant’s argument is not persuasive. De fendant fails to adequately explain how the acquisition of Pirelli S.p.A. by Chem China in Italy altered the ownership of Pirelli entities in China such that the rebuttable presumption of go vernment ownership applies or that if the presumption applies, that evidence on the record was not sufficient to rebut the presumption. See Sigma Corp, 117 F.3d at 1405–06 (addressing th e rebuttable presumption as to companies within the country being subject to government control). Defendant’s position is not aided by Commerce’s limited review of Pirelli as to the extent of gove rnment ownership without a more fulsome discussion of the criteria for de jure and de facto governmental control as those criteria apply in this case. See Final IDM at 26–28. Absent that analysis here, the court cannot conclude that Commerce’s inference of de facto government control over Pirelli’s China-based entities by

3 Defendant also argues that Pirelli’s claim should be waived for failure to exhaust administrative remedies. Def.’s Resp. 30. Pirelli asserts, inter alia , that it presented these arguments in its separate rate application and in its case brief, that the Final Results indicate that Commerce was on notice of Pirelli’s argument. See Pirelli Re ply 14–16. The court concludes that Pirelli’s argument is not waived in this case. See 28 U.S.C. § 2637.Consol. Court No. 18-00077 Page 24
means of Chem China’s ownership of Pirelli S.p.A is e ither supported by subs tantial evidence or in accordance with the law.
D. Denial of Separate Rate Status as to Pirelli for a Bifurcated Period Pirelli contends that Commerce’s decision not to grant Pirelli separate rate status for the period of time before Chem Ch ina’s acquisition was not supporte d by substantial evidence and was not in accordance with law. Pirelli’s Mot. 48–52. Pirelli argues that the record contained sufficient evidence to demonstrat e Pirelli’s status as a publicly listed company without Chinese ownership prior to Chem China’s acquisition. Pirelli’s Mot. 50. Defendant argues that Commerce denied Pirelli se parate rate status for the segment of the period of review before Chem China’s acquisition because Pirelli did not provide complete ownership information for that segment of time. Def.’s Resp. 49–51. In the Final Results, Commerce asserted that Pirelli did not provide complete ownership information for the period before China acqui red Pirelli S.p.A, but did provide complete ownership information for the period after Chem China acquired Pirelli S.p.A. See Final IDM at 28; Def.’s Resp. 25. Commerce assessed that Pirelli did not provide complete ownership information as to Pirelli’s inte rmediate and ultimate owners fr om January through October 2015. Final IDM at 28. Commerce concluded that Pire lli’s claim, that Pirelli’s ownership structure prior to October 2015 was the same as Pirelli’ s ownership structure during the underlying investigation, was not supported by the record in the administrative review. Id. Because the court remands for reconsideration of Pirelli’s separate rate status, the court does not reach this issue.Consol. Court No. 18-00077 Page 25

E. Application of the China-Wide Entity Rate to PirelliBecause Pirelli did not receive separate rate status, Commerce assigned Pirelli the Chinawide entity rate. Pirelli argues, inter alia , that Commerce lacks statutory authority to establish a China-wide entity rate. Pire lli Br. 7–26. Defendant counters that Commerce may assign a China-wide entity rate to exporte rs that cannot demonstrate both de jure and de facto independence and that the U.S. Court of A ppeals for the Federal Circuit has upheld the application of PRC-wide entity rates to re spondents. Def.’s Resp. 26, 33 (citing Diamond Sawblades Mfrs. Coal. v. United States, 866 F.3d 1304, 1312 (Fed. Cir. 2017)). Because the court remands for reconsideration of separate rate status as to Pirelli, the court does not reach the issue of Commerce’s assignment of the PRC-wide rate to Pirelli.
CONCLUSION For the foregoing reasons, the court concludes that:
1. Commerce’s notice and initiation of the administrative review as to Plaintiff was in accordance with the law;
2. Commerce’s determination not to grant a separate rate as to Shandong Yongtai Chemical was not supported by substantial evidence;
3. Commerce’s calculation of a VAT deducti on to Sentury’s U.S. price was not supported by substantial evidence and not in accordance with the law;
4. Commerce’s decision not to make an adju stment for the EBCP in the companion countervailing duty administrative re view was not supported by subs tantial evidence and not in accordance with the law; andConsol. Court No. 18-00077 Page 26

5. Commerce’s decision to deny Pirelli separa te rate status was not supported by substantial evidence and not in accordance with the law. Upon consideration of all pa pers and proceedings in this action, it is hereby
ORDERED that Commerce shall file its remand de termination on or before January 27, 2020; and it is further
ORDERED that Commerce shall file the administra tive record on or before February 10, 2020; and it is further
ORDERED that Parties’ comments in opposition to the remand deter mination shall be filed on or before February 26, 2020; and it is further
ORDERED that Parties’ comments in support of the remand dete rmination sha ll be filed on or before March 27, 2020; and it is further
ORDERED that the Joint Appendix shall be filed on or before April 10, 2020.

/s/ Jennifer Choe-Groves Jennifer Choe-Groves, Judge Dated: November 27, 2019 New York, New York