
    796 F. Supp. 517
    Koyo Seiko Co., Ltd. and Koyo Corp. of U.S.A., plaintiffs v. United States and U.S. Department of Commerce, defendants, and Timken Co., defendant-intervenor
    Court No. 90-06-00300
    
      (Dated May 15, 1992)
    
      Powell, Goldstein, Frazer & Murphy (Peter O. Suehman, Susan P. Strommer, Jonathan A. Knee, Susan E. Silver, Neil R. Ellis, T. George Davis and Niall Meagher) for plaintiffs.
    
      Stuart M. Gerson, Assistant Attorney General; David M. Cohen, Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (VeltaA. Melnbrencis); of counsel: Joan L. MacKenzie, Attorney-Advisor, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, for defendant.
    
      Stewart and Stewart (Eugene L. Stewart, Terence P. Stewart, James R. Cannon, Jr., JohnM. Breen and Margaret E.O. Edozien) for defendant-intervenor.
   Opinion

Tsoucalas, Judge:

This action, brought by Koyo Seiko Co., Ltd. and Koyo Corporation of U.S.A. (“Koyo”), challenges the Department of Commerce’s final results in an administrative review of antidumping findings for Tapered Roller Bearings Four Inches or Less in Outside Diameter From Japan; Final Results of Antidumping Duty Administrative Review (“Final Results”), 55 Fed. Reg. 22,369 (1990), for the period of April 1, 1974 through March 31,1979 for Koyo.

On October 31, 1973, Timken filed a petition requesting the imposition of antidumping duties on tapered roller bearings (“TRBs”) from Japan. Tapered Roller Bearings From Japan; Antidumping Proceeding Notice, 38 Fed. Reg. 33,408 (1973). On December 4, 1973, the United States Department of the Treasury (“Treasury”) published an “An-tidumping Proceeding Notice” advising that it was instituting an inquiry to determine the existence of sales at less than fair value. Id. Treasury then directed Customs officers to withhold appraisement of TRBs effective June 5, 1974. Tapered Roller Bearings From Japan— Antidumping; Withholding of Appraisement Notice, 39 Fed. Reg. 19,969 (1974). On September 3, 1974, Treasury published its determination that TRBs were being, or were likely to be sold at less than fair value. Tapered Roller Bearings From Japan — Antidumping; Determination of Sales at Less Than Fair Value, 39 Fed. Reg. 32,337 (1974). The International Trade Commission determined on January 23, 1975, that the United States industry would likely be injured by the TRB imports in question. Tapered Roller Bearings and Certain Components Thereof From Japan; Determination of Likelihood of Injury, 40 Fed. Reg. 4,366 (1975). Treasury published a dumping finding on August 18,1976. Tapered Roller Bearings and Certain Components From Japan, 41 Fed. Reg. 34,974 (1976). Although the United States Customs Service (“Customs”) prepared liquidation instructions after the dumping finding, it appears that no Koyo entries subject to this finding were liquidated.

After the dumping finding, Treasury began to periodically send Koyo and its American subsidiary, American Koyo Corporation, assessment questionnaires and requests for updated information, covering the entire period at issue here. Subsequent Treasury verifications took place and, in July 1979, Koyo received two master lists covering Koyo’s entries from April 1,1974 through September 30,1977. Accordingto Koyo, these results were flawed. See Plaintiffs’ Motion for Judgment on the Agency Record (“Plaintiffs’ Motion”) at 7. The master lists appeared to be suspended in 1979 due to these flaws. Administrative Record (“AR”) (Pub.) Doc. 93.

Effective January 2, 1980, the authority for administering the an-tidumping law was transferred from Treasury to the United States Department of Commerce (“Commerce”), by Exec. Order No. 12,188, 3 C.F.R. 131 (1980). Subsequently, Commerce began to conduct administrative reviews of unliquidated entries pursuant to 19 U.S.C. § 1675 (1980). By March 17, 1980, Commerce had corrected a master list for Koyo covering the period January 1,1977 through September 1,1977. AR (Conf.) Doc. 58. This master list revealed zero percent margins for Koyo; however, these entries were not liquidated. AR (Pub.) Doc. 169. In August 1981, Koyo received a handwritten list of less than fair value calculations from Commerce covering the entire review period, with a cover memorandum requesting quantities corresponding to each bearing. AR (Conf.) Doc. 100; Plaintiffs’Motion at 10. On September 1,1981, Commerce published preliminary results for forty known firms covered by the 1976 dumping finding; however, Koyo was not included. Tapered Roller Bearings and Certain Components ThereofFrom Japan; Preliminary Results of Administrative Review and Tentative Revocation in Part of Antidumping Finding (“TRBs From Japan I”), 46 Fed. Reg. 43,864 (1981). In addition, preliminary results for NTN (another large Japanese manufacturer) were published on February 27, 1981. Tapered Roller Bearings and Certain Components ThereofFrom Japan: Preliminary Results of Administrative Review of Antidumping Finding; NTN Toyo Bearing Co., Ltd. and NTN Bearing Corporation of America; and Tentative Determination to Revoke in Part (“TRBs From Japan II”), 46 Fed. Reg. 14,371 (1981).

Subsequently, Commerce continued to conduct annual reviews for periods after those under this review, and to verify Koyo’s submissions. In February 1982, Commerce informed Koyo that margins set at close to zero percent would appear shortly in a preliminary determination. AR (Conf.) Doc. 320; Plaintiffs’ Motion at 12. These preliminary results were never issued. AR (Pub.) Doc. 151.

On September 19, 1983, Timken alleged to Commerce that Koyo’s home market sales were below the cost of production. AR (Pub.) Doc. 194. As a result, on September 29, 1983, Commerce issued questionnaires on cost of production covering entries made as early as April 1, 1978, AR (Pub.) Doc. 198, to which Koyo responded on Januapr 11,1984, AR (Conf.) Doc. 144. These responses were verified in April 1984. AR (Conf.) Doc. 153.

On March 9, 1984, Commerce issued final results for forty Japanese exporters subject to the September 1,1981 preliminary results, relying on Treasury master lists as “best information available.” Tapered Roller Bearings and Certain Components Thereof From Japan; Final Results of Administrative Review of Antidumping Finding (“TRBs From Japan III”), 49 Fed. Reg. 8,976 (1984). Koyo was not included in these results.

Effective October 30, 1984, § 751 of the Tariff Act of 1930 was amended to require annual reviews only when interested parties request reviews within forty-five days. On October 8, 1985, The Timken Company requested reviews of Koyo and NSK, which were performed by Commerce of Koyo and NSK TRBS for the period April 1,1974 to July 31,1984. International Trade Administration; Initiation of Antidump-ing Duty Administrative Review, 51 Fed. Reg. 24,883 (1986). The Federal Register notice informed that final results for these reviews would be issued by July 31,1987.

On August 4, 1986, Koyo was asked to supplement data to the questionnaire responses previously submitted. AR (Conf.) Doc. 170. Koyo submitted this information in September 1986. AR (Conf.) Doc. 182. In late 1986 and early to mid-1987, Commerce conducted verifications of this new information which pertained to entries made between April 1, 1974 through July 31,1986. AR (Conf.) Doc. 264. On December 28,1987, Koyo received another questionnaire for entries dating back to April 1974. AR (Pub.) Doc. 332. Koyo objected to this questionnaire, but responded to the request. AR (Pub.) Doc. 326.

On March 29,1989, the International Trade Administration (“ITA” or “Commerce”) published section 751(a) preliminary results on Koyo’s entries covering the period from April 1,1974 through March 31,1979, which stated that based on best information available, the weighted average dumping margins for Koyo ranged from 16.44% to 22.86%. Tapered Roller Bearings Four Inches or Less in Outside Diameter and Certain Components Thereof From Japan, Preliminary Results of An-tidumping Duty; Administrative Review. 54Fed. Reg. 12,938 (1989). On June 1, 1990, Commerce issued the final results for Koyo and NSK TRBs, finding that the dumping margins for Koyo ranged between 18.81% to 35.89%. Tapered Roller Bearings Four Inches or Less in Outside Diameter From Japan; Final Results of Antidumping Duty Administrative Review, 55 Fed. Reg. 22,369 (1990).

Koyo seeks judgment on the agency record as to all five counts in its complaint, claiming that Commerce’s final results are unsupported by substantial evidence and are not in accordance with law. While acknowledging that the case should be remanded for recalculation of Koyo’s dumping margins for the periodApril 1978to March 1979, andfor application of the twenty percent cap at the end rather than the beginning of the model selection process, Commerce opposes this motion, claiming that its methodology was reasonable, in accordance ivith law, and that best information available was properly used in calculating the dumping margins.

Discussion

Pursuant to the Tariff Act of 1930, in reviewing a final determination of Commerce, this Court must uphold that determination unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(l)(B) (1988). Substantial evidence has been defined as being “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 477 (1951) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). “It is not within the Court’s domain either to weigh the adequate quality or quantity of the evidence for sufficiency or to reject a finding on grounds of a differing interpretation of the record. ” The Timken Co. v. United States, 12 CIT 955, 962, 699 F. Supp. 300, 306 (1988), aff’d, 894 F.2d 385 (Fed. Cir. 1990).

1. Use of Master Lists:

In this action, plaintiffs request this Court to order the immediate liquidation of Koyo’s entries at the “as entered” zero assessment rate. Alternatively, they urge this Court to liquidate the entries at issue pursuant to master lists. Plaintiffs’Motion at 20-21.

Commerce claims that the statutory scheme requires them, as the administering body, to conduct administrative reviews of dumping findings issued pursuant to the 1921 Act and the results of these reviews are to serve as the basis for the assessment of antidumping duties upon entries covered by the final results of the review and for deposits of estimated duties.

A § 751(a) review, however, “does not apply to entries which were on master lists issued before the effective date of the Act. ” The Timken Co. v. Regan, 4 CIT 174,178,552 F. Supp. 47,51 (1982). Section 1002(b)(3) of the 1979 Act provides as follows:

(b) Transitional Rules. -
(3) Certain Countervailing and Antidumping Duty Assessments. —The amendments made by this title * * * shall apply with respect to the review of the assessment of, or failure to assess, any countervailing duty or antidumping duty on entries subject to a countervailing duty order or antidumping finding if the assessment is made after the effective date. If no assessment of such duty had been made before the effective date that could serve the party seeking review as the basis of a review of the underlying determination, made by the Secretary of the Treasury or the International Trade Commission before the effective date, on which such order, finding, or lack thereof is based, then the underlying determination shall be subject to review in accordance with the law in effect on the day before the effective date.

Trade Agreements Act of 1979, 19 U.S.C. § 1516(a) note (1980) (Effective Date; Transitional Rules).

The legislative history of § 1002(b)(3) reflects Congress’ intent that any cases pending before the effective date of the bill “and cases which were far advanced in the administrative process before the effective date, are to proceed as if the bill had not been enacted into law.” S. Rep. No. 249, 96th Cong., 1st Sess. 1 (1979), reprinted in 1979 U.S.C.C.A.N. 381, 641.

The facts in the case at hand are similar to Timken v. Regan, 4 CIT 174, 552 F. Supp. 47. In Timken, the entries in question were liquidated subject to the master list predating the Act. The court further held that a § 751(a) review did not apply since the master lists”were issued before the effective date of the Act.” Id. at 178, 552 F. Supp. at 51. In reaching its conclusion, the court also considered the fact that “the proceedings were far advanced in the administrative process before the Trade Agreements Act of 1979 went into effect.” Id.

In the case at bar, master lists existed for entries entered between April 1, 1974 to September 30, 1977. Therefore, all entries subject to master lists existing prior to the date of transfer of jurisdiction must be liquidated accordingly.

2. Entries not covered by Master Lists:

Several of the latter entries, specifically those entered between October 1,1977, andMarch 31,1979, were not covered by master lists. Information submitted by Koyo for these entries was verified by Treasury in September 1979. AR (Conf.) Doc. 44. Although no deficiencies were reported at that time, contrary to plaintiffs’ contentions, the investigation was not “far advanced” enough to warrant application of the old law. See Timken, 4 CIT at 178, 552 F. Supp. at 51. The bulk of the investigation occurred after January 1, 1980. Thus, in accordance with the transitional rules, a § 751 review was in order.

On September 1,1981, Commerce published preliminary results for forty known firms covered by the 1976 dumping finding; however, Koyo was not included. TRBs From Japan I, 46 Fed. Reg. 43,864 (1981). In addition, preliminary results for NTN were published in February 1981. TRBs From Japan II, 46 Fed. Reg. 14,371.

In February 1982, Commerce informed Koyo that margins set at close to zero percent would appear shortly in a preliminary determination. AR (Conf.) Doc. 320; Plaintiff s’Motion at 12. These preliminary results were never issued. AR (Pub.) Doc. 151. Nevertheless, having not issued preliminary results for Koyo’s administrative review covering the same period, Commerce instead decided to commence a de novo review in July 1986 using a three factor methodology to determine “such or similar” merchandise. In 1987, Commerce subsequently changed its methodology again utilizing five factors to determine “ such or similar” merchandise. AR (Pub.) Doc. 322.

Plaintiffs claim that the retroactive application of successive new methodologies for calculating dumping margins in this case, many years after the entries at issue had been entered, is not supported by the express terms of the antidumping law and, in fact, is directly contrary to the fundamental principle that this law is remedial rather than punitive in nature.

Commerce in turn claims that its changes in methodology were reasonable and necessary because Koyo had been permitted to select what it considered to be similar home model TRBs and that Commerce’s 1984 verification disclosed that Koyo had seriously under-reported its home market sales and had not made proper model comparisons. Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for Judgment Upon the Agency Record at 34.

It is well-established that Commerce is granted tremendous deference in selecting the appropriate methodology. ICC Indus,, Inc. v. United States, 812 F.2d 694, 699 (Fed. Cir. 1987); Consumer Prod. Div., SCM Corp. v. Silver Reed America, Inc., 753 F.2d 1033, 1039 (Fed. Cir. 1985). As long as its decision is reasonable, then Commerce has acted within its authority even if another alternative is more reasonable.

In the case at hand, the methodology employed by Commerce was reasonable, but the delay and changes in methodology were unreasonable. This final determination should have been completed years ago. To allow Commerce to prolong the determination would be to reward it for its delay. Commerce cannot suspend the administrative process indefinitely until “better” methodologies are discovered or “better” data is available.

While Commerce does have the latitude to act within its own discretion and in a reasonable fashion, there are boundaries to the scope of reasonableness. Commerce has certain obligations and one such obligation is to proceed with investigations in a timely manner within reasonable limits. Issuing a final determination sixteen years after the initial entries were entered greatly exceeds even the broadest definition of reasonable.

Section 1675(a)(1) states that:

At least once during each 12-month period * * * the administering authority * * * shall—
(A) review and determine the amount of any net subsidy,
(B) review, and determine * * * the amount of any antidump-ing duty, and
(C) review the current status of, and compliance with, any agreement by reason of which an investigation was suspended, and review the amount of any net subsidy or margin of sales at less than fair value * * *.

19 U.S.C. § 1675(a)(1) (1988).

It has been determined, however, that the timetable for completion of a § 751(a) review is directory and not mandatory “because Congress did not provide for a prohibition or adverse consequence to be imposed for failing to meet the statutory deadline.” Nakajima All Co. v. United States, 12 CIT 585, 589, 691 F. Supp. 358, 362 (1988); see also American Permac, Inc. v. United States, 10 CIT 535, 539-40, 642 F. Supp. 1187, 1191-92 (1986); Nissan Motor Corp. In U.S.A. v. United States, 10 CIT 820, 825, 651 F. Supp. 1450, 1455 (1986).

Nevertheless, the Court of Appeals has recognized that the court has the authority to exercise its sound discretion to fashion an appropriate remedy in compelling Commerce to complete the processing of “ongoing” administrative reviews in appropriate circumstances. Sharp Corp. v. United States, 837 F.2d 1058 (Fed. Cir. 1988). Furthermore, this Court has issued writs of mandamus compelling Commerce to complete administrative reviews within a certain period of time. Nakajima, 12 CIT 585, 691 F. Supp. 358.

Thus, while the statutory framework does not provide a restraint on Commerce for failing to complete an administrative review within a reasonable time, equity dictates that the issuance of a final determination eleven years after the last entry in question is an abuse of Commerce’s discretion and prejudicial to Koyo. In light of the circumstances in this case, Commerce’s second change in methodology, from three factors to five factors was simply another delay in the investigation and was thereby unreasonable and not supported by substantial evidence.

Violation of Koyo’s Due Process Rights:

Plaintiffs additionally claim that the excessive delay violates their constitutional rights of due process under the law. The Supreme Court has set forth a four part test to determine whether an administrative delay is so excessive as to violate due process. United States v. Eight Thousand Eight Hundred and Fifty Dollars, 461 U.S. 555, 564 (1983). The Court must weigh four factors: the length of the delay, the reason for the delay, the party’s assertion of his right, and the prejudice to the party. Id.

In $8,850, the Supreme Court noted that the first element, length of the delay, “is to some extent a triggering mechanism.” Id. at 565. The Supreme Court deemed eighteen months as a substantial delay of time, but they balanced the delay with the Government’s diligent efforts in processing the petition and ruled that there was no prejudice. Id. at 569-70. In this case, the unreasonably long delay is corroborated by the Government’s lack of an excuse. The Government did not pursue any diligent efforts. The only explanation for the delay offered by Commerce is that this type of investigation is “the most difficult and time consuming to do.” AR (Conf.) Doc. 320, Exhibit 2. Furthermore, Koyo was prejudiced by the fact that their determination was delayed while Commerce issued final results for all forty of the Japanese manufacturers/exporters of TRBs subject to Treasury’s 1976 dumping finding that had been included in Commerce’s preliminary results of September 1,1981. See TRBs From Japan III, 49 Fed. Reg. 8,976.

Thus, for the foregoing reasons, this case is remanded and all entries made between October 1, 1977 and March 31, 1979 are to be recalculated in accordance with the three factor model-match methodology.

3. Commerce’s Requests for Remand Regarding Improper Calculations in Dumping Margins:

A. Below-Cost-of-Production Sales:

Commerce claims and Koyo agrees that the case should be remanded to Commerce for recalculation of dumping margins for the April 1,1978 to March 31, 1979 period without reference to the investigation of below-cost-of-production sales.

Commerce commenced a cost of production investigation pursuant to 19 U.S.C. § 1677b(b) to determine whether Koyo’s TRBs during the period April 1, 1978 to March 31, 1979 were sold in the United States at prices which were below the cost of production. The use of best information available in the investigation resulted in the exclusion of most of the home market sales.

Koyo claims that in 1983 Commerce did not have “reasonable grounds” to institute an investigation of sales at less than the cost of production. Now, after reviewing the administrative record, Commerce concedes that its investigation of the cost of production is contrary to its current practice.

In Al Tech Specialty Steel Corp. v. United States, 6 CIT 245, 575 F. Supp. 1277 (1983), aff’d on other grounds, 745 F.2d 632 (Fed. Cir. 1984), the court stated that “absent a specific and objective basis for suspecting that a particular foreign firm is engaged in home market sales at prices below its cost of production, section 773(b)’s threshold requirement of ‘reasonable grounds to believe or suspect’ has not been satisfied.” Id. at 250, 575 F. Supp. at 1282 (emphasis in original).

The court further explained that:

[T]he mere use of the adjective “loss-making” fails to show less-than-cost-of-production sales of a single product sold in a discrete market where the company * * * sold a vast range of products in markets around the world. * * * [Furthermore,] evidence of a company-wide loss fails to adequately pinpoint below-cost-of-production sales of an individual product in one of the company’s many markets.

Id. at 249, 575 F. Supp. at 1281 (emphasis supplied).

Thus, Commerce requires a company specific standard for initiation of a cost of production investigation. In the case at hand, the record is more producer-specific than the information that was before the court in Al-Tech, because it refers to Koyo’s business losses, rather than the losses of producers generally. Nevertheless, the information is not product specific in that it does not specifically link losses to the TRBs in issue. Thus, for these reasons, in recalculating the dumping margins for April 1,1978 to March 31,1979, Commerce should do so without reference to the investigation of below-cost-of-production sales.

B. Twenty Percent Cap:

The parties are also in agreement that the case should be remanded to Commerce for application of the twenty percent cap at the end rather than at the beginning of the model selection process. When selecting similar merchandise, such merchandise must be approximately equal in commercial value to the merchandise under investigation. 19 U.S.C. § 1677(16)(B). In this case, after determining the criteriafor comparing or matching TRB models in the two markets, Commerce added a twenty percent cost cap in order to ensure that the home market model chosen is of approximately equal commercial value with the U.S. model. Final Results, 55 Fed. Reg. at 22,369. The application of the cost cap at the beginning of the selection process resulted in the use of constructed values rather than sales prices for a larger number of home market models than would have been applied at the end of the selection process.

Congress has expressed a preference for calculating foreign market value based upon the price of the merchandise in the home market rather than upon its constructed value. 19 U.S.C. § 1677(a)(1) and (2). Therefore, the twenty percent cost cap shall be applied at the end rather than at the beginning of the model selection process.

4. Best Information Available:

Plaintiffs also claim that Commerce’s use of “best information available” and its calculation of foreign market value by rejecting Koyo’s reported home market discounts was arbitrary, unsupported by substantial evidence and otherwise not in accordance with the law.

In Olympic Adhesives, Inc. v. United States, 899 F.2d 1565, 1574 (Fed. Cir. 1990), the Court of Appeals held that Commerce was unjustified in resorting to best information available when there was no indication that there was noncompliance with any information requests. The court held that “section 1677e(b) clearly requires noncompliance with an information request before resort to the best information rule is justified, whether due to refusal or mere inability.” Id. (emphasis in original); Daewoo Elecs. Co. v. United States, 13 CIT 253, 265, 712 F. Supp. 931, 944 (1989).

Furthermore, the Court of Appeals has stated that the best information rule is

an investigative tool, which that agency may wield as an informal club over recalcitrant parties or persons whose failure to cooperate may work against their best interest. One may as well view the rule, in light of the legislative history cited, as a club over the ITC’s head, which Congress has brandished to force that agency to arrive at some determination within the time allotted. “Impossible” is a word which Congress does not want to hear in these complex cases.

Atlantic Sugar, Ltd. v. United States, 744 F.2d 1556, 1560 (Fed. Cir. 1984) (emphasis in original).

Koyo specifically contests several of Commerce’s uses of best information available. Based on this opinion, some of these claims are now moot; for example, Commerce’s use of best information available in lieu of master lists.

Koyo claims that they failed to keep records due to the inordinate time elapsed during this investigation and because they were under the impression that a revocation was in order. AR (Conf.) Doc. 320. Koyo further claims that Commerce’s use of best information available in these situations would penalize Koyo for not maintaining records. Commerce’s extraordinary delay, however, is no reason for Koyo to destroy records in an ongoing investigation. Furthermore, while Koyo may have been justified in expecting a revocation, it was never confirmed. Under these circumstances, Koyo should have retained their records. Therefore, Commerce is faced with no other alternative than to apply best information otherwise available when Koyo is unable to produce information that no longer exists. Commerce, however, should not use the best information rule punitively since there is no evidence that Koyo intentionally failed to comply with Commerce’s data requests.

It is well-established that Commerce is granted broad discretion in determining what constitutes best information available. Chemical Prods. Corp. v. United States, 10 CIT 626, 632-34, 645 F. Supp. 289, 294-96, remand order vacated, 10 CIT 819, 651 F. Supp. 1449 (1986). Furthermore, Commerce may disregard information submitted by a party for the relevant period and use other information if it is the best information available. Rhone Poulenc, Inc. v. United States, 13 CIT 218, 224, 710 F. Supp. 341, 346 (1989), aff’d, 899 F.2d 1185 (Fed. Cir. 1990); Uddeholm Corp. v. United States, 11 CIT 969, 971, 676 F. Supp. 1234, 1236 (1987).

In this case, Koyo claims that Commerce abused its discretion in using best information available for United States inventory turnover for the periods July 1976 to November 1977 and January 1978 to June 1978. This issue is partially moot in light of this court’s decision to have liquidated all entries entered between April 1,1974 and September 30,1977 in accordance with existing master lists. The period from October to November 1977, and January to June 1978, however, remains at issue. Koyo claims that in its Final Results, Commerce unfairly penalized Koyo by adding forty-five days instead of thirty days for the time of shipment from Japan to the number of days in inventory. See Plaintiffs’Motion at 84-85. This length of time, however, was verified to be thirty days. AR (Conf.) Doc. 232. Therefore, Commerce was not justified in using the forty-five days and on remand it should use thirty days.

As additional best information available, Commerce calculated inventory turnover for the same period, July 1976 through November 1977 and January 1978 through June 1978, based on the longest number of days merchandise was in inventory for any month during December 1977 through March 1979. See Final Results, 55 Fed. Reg. at 22,376-77, Comment 34. Plaintiffs, however, were unable to submit any other data on point. Thus, Commerce was compelled to use the best information otherwise available.

Koyo also contests Commerce’s use of best information available for United States brokerage, freight-in, and freight-out charges for the entire period. Koyo claims that Commerce rejected Koyo’s data because it was not on computer tape. Koyo’s data, however, was incomplete and was not in the correct format and therefore, Commerce was justified in using best information otherwise available.

Furthermore, Koyo contests Commerce’s use of best information available in its calculation of the United States duty rate by ignoring data timely submitted by Koyo. Two months prior to the issuance of the preliminary results, Koyo submitted data for net weights of certain TRBs to calculate the United States duty rates. Commerce dismissed this data as untimely. AR (Conf.) Doc. 304. In light of Commerce’s inexcusable delay in proceeding with this investigation and its changes in methodologies, Koyo’s submission of this data two months before the final results were issued is reasonable. See Olympic Adhesives, 899 F.2d at 1574. Thus, there was no need for Commerce to invoke the best information rule, and on remand Commerce should use Koyo’s data for the net weights of these TRBs.

Koyo’s final contest with Commerce’s selection of best information available states that Commerce erred in using best information for United States foreign inland freight, ocean freight, marine insurance and brokerage for the period April 1974 to April 1978. Koyo’s submission of data, however, was not in the correct format and thus, Commerce was justified in selecting best information available.

Conclusion

In accordance with the foregoing opinion, this case is remanded with instructions that all entries entered between April 1,1974 through September 30, 1977 shall be liquidated in accordance with the existing master lists. Furthermore, all entries entered between October 1, 1977 through March 31,1979, shall be recalculated pursuant to the three criteria methodology for determining “such or similar” merchandise. In recalculating the dumping margins for the entries from April 1,1978 to March 31,1979, Commerce must do so without reference to the investigation of below-cost-of-production sales; and the twenty percent cost cap shall be applied at the end rather than at the beginning of the model selection process. Furthermore, Commerce’s use of “best information available” was reasonable in all respects except when it disregarded Koyo’s data for net weights of certain TRBs for use in calculating duty rates, and when it added forty-five days for the shipping time. Thus, in its recalculations Commerce must use Koyo’s data for the net weights and must apply thirty days for the shipping time. Commerce shall report the results of the remand determination to this Court within ninety (90) days of the date this opinion is entered.  