
    BÖWE PASSAT REINIGUNGS-UND WÄSCHEREITECHNIK GMBH & Boewe-Passat Drycleaning & Laundry Machinery Corporation, Plaintiffs, v. UNITED STATES & U.S. Department of Commerce, Defendants.
    Slip. Op. 97-72.
    Court No. 92-01-00058.
    United States Court of International Trade.
    June 3, 1997.
    
      Barnes, Richardson & Colburn, Rufus E. Jarman, Jr., New York City, Ronald A. Oleynik, Washington, DC, for Plaintiffs.
    Frank W. Hunger, Asst. Atty. Gen. of U.S., David M. Cohen, Director, Commercial Litigation Branch, Civil Div., U.S. Dept, of Justice, Velta Melnbrencis, for Defendants; Robert Heilferty, Atty-Advisor, Office of Chief Counsel for Import Admin., Dept, of Commerce, of counsel.
   MEMORANDUM OPINION & ORDER

POGUE, Judge.

This matter is before the court for review of the United States Department of Commerce (“Commerce”) redetermination (“Remand III”) pursuant to remand. Böwe Pas-sat Reinigungs-Und Waschereitechnik Gmbh v. United States, 951 F.Supp. 231, 240 (CIT 1996) (“Böwe III”). Several remands have resulted from judicial review of Commerce’s final determination in Drycleaning Machinery from Germany, 56 Fed.Reg. 66, 838 (Dep’t Comm. Dec. 26, 1991) (final results admin, review). The first resulted from Böwe Passat Reinigungs-Und Waschereitechnik Gmbh v. United States, 17 CIT 335, 1993 WL 179269 (1993) (“Böwe I”), wherein the Court directed Commerce to consider new record evidence in evaluating plaintiffs’ (“Bowe’s”), claimed circumstance of sale and level of trade adjustments. Id. at 343. After reviewing Commerce’s first redetermination (“Remand I”), this Court sustained the Department’s denial of Bowe’s claimed circumstance of sale adjustments as well as three methodological issues contested during the administrative review. See Böwe Passat Reinigungs-Und Waschereitechnik Gmbh v. United States, 926 F.Supp. 1138, 1151 (CIT 1996) (“Böwe II”). The Court remanded the issue of Bowe’s claimed level of trade adjustments. Id. The Court concluded that Commerce had imposed an unreasonable burden of proof on Bowe. Id. at 1142-1144. Specifically, the Court concluded that Commerce had effectively required Bowe to produce evidence of sales at different levels of trade in its home market to establish the level of trade adjustment to Commerce’s satisfaction. Bowe, however, only sold at the end user level of trade in the home market, and, therefore, could not meet this burden. Such an impossible burden would have been unreasonable, and therefore, not in accordance with law. See NEC Home Elecs., Ltd. v. United States, 54 F.3d 736, 745 (Fed.Cir.1995) (imposing impossible burden represents an abuse of ITA’s discretion).

In the second remand redetermination (“Remand II”), Commerce elaborated on the reasons for its denial of the level of trade adjustments. Commerce recognized that requiring actual home market data of sales at two levels of trade was impossible. Remand II at 7. Commerce stated that it was not requiring such evidence of Bowe. Id. Instead, Commerce said that the evidence Bowe had submitted in support of its claimed adjustments had “gaps and inconsistencies” that undermined Bowe’s claim. Remand II at 8. In reviewing the second redetermination, this Court stated that Commerce’s elaboration of the reasons supporting denial of the adjustments “cure[d] the otherwise unreasonable burden of proof,” Bowe III, 951 F.Supp. at 235; the Court then evaluated whether record evidence supported Commerce’s “gaps and inconsistencies” rationale. Id. The Court sustained Commerce’s denial of level of trade adjustments for four of the five expense categories, finding that the record supported Commerce’s conclusion that gaps and inconsistencies undermined the data. Id. at 235-238. Nevertheless, in reviewing Commerce’s rationale for rejecting the adjustment for order entry and control expenses, the Court interpreted Commerce’s stated reasons as still imposing an unreasonable burden on Bowe. Id. at 238-240. Accordingly, the Court remanded the issue of the denial of this expense category. Id. at 240.

In Remand III Commerce clarified its denial of the level of trade adjustments as follows: would foreclose a LOT adjustment for Bowe. Therefore, we did not use such an approach. In fact, we were looking for Bowe to supply worksheets or narrative explanation (as opposed to an unsupported percentage adjustment) which would support Bowe’s otherwise unsubstantiated claims and which would permit the Department to perform an independent evaluation of Bowe’s LOT claim. The Department examined Bowe’s OE & C expenses against the same standard of proof applied to Bowe’s other claims: for each, the Department required Bowe to demonstrate that sales to one level of trade in the home market were more costly than sales to the other level of trade in the United States, and to demonstrate that the cost differential was reflected in price.

With regard to Bowe’s OE & C expenses, however, the Court appears to read the Second Remand as indicating that the Department applied a different standard of proof to the OE & C expenses than that applied to the other four categories of expenses. This belief apparently stems from the Department’s failure to articulate clearly its conclusions regarding the evidence Bowe supplied to support this claimed adjustment. The Court (and plaintiff) read our statements that “no record evidence exists ... for sales to domestic distributors” concerning the functions of OE & C employees, and that “Bowe has presented no information to indicate that these employee functions would differ for distributor sales,” as a de facto requirement that Bowe provide actual data on these non-existent home market sales. See Bowe III at 239. However, as the Department made clear later in its Second Remand:
Bowe’s claim for a LOT adjustment did not depend upon Bowe supplying data on home market sales to distributors, as the Department knew ... that these data are non-existent. Rather, our careful analysis of each of Bowe’s LOT claims leads us to conclude ... that Bowe’s claims do not provide the Department with a reliable basis for calculating an adjustment to FMV.
Second Remand at 24.
Our reference to “no evidence” and “no information” on the record concerning “sales to domestic distributors” apparently left the impression that the Department’s analysis of Bowe’s OE & C expenses focused solely on the domestic market to the exclusion of all other information. Because Bowe had no sales at the distributor level of trade such an analytical approach

As we explain further below, our final conclusion regarding this adjustment has not changed: gaps and inconsistencies in Bowe’s submissions preclude this adjustment Bówe has not demonstrated adequately that sales to one level of trade in the home market are more costly than sales to the other level of trade in the United States. The Compendium, upon which Bowe’s LOT claims ultimately rely, reflects the number of minutes spent by OE & C employees on “domestic” market sales versus “export” sales. While we know that the home market was limited to sales to the end user level of trade, we do not know the levels of trade included in the “export” category, which encompasses more than just the U.S. market. In fact, the “export” market included sales to Australia, Austria, Canada, England, France, Italy, New Zealand, Portugal, Saudi Arabia, the Soviet Union, and Turkey. See Questionnaire Response at A-l through A-4; Supplemental Response at 2. The Compendium provides no further differentiation by country. Moreover, Bowe supplied no data indicating the levels of trade found in these markets. Sales to these countries may have involved end users, distributors, or any number of other distinct levels of trade. The record on this point is silent. In addition, we have no means of isolating the levels of trade to which Bowe sells, as opposed to other market conditions unique to a specific country, which may account for the significant amount of time spent on home market sales. As one example'of these market conditions, in the underlying review Bowe stresses the stringent environmental regulations governing the sale of drycleaning machinery in the home market. See Questionnaire Response at A5 and A6; Bowe’s October 9, 1991 Case Brief (Case Brief) at 7 through 9; Hearing Transcript at pages 32 through 46. Bowe explains that these regulations are far more burdensome than are similar requirements in the United States, noting that home market customers are required to purchase a separate air-filtering absorber with each drycleaning machine. See Hearing Transcript at 39. It is important to note that there may be other aspects of the home market (more exacting labor or occupational safety regulations, or tax laws, for example) which would increase the administrative burden of Bowe’s home market sales: such factors operate independently of levels of trade. Thus, the Compendium, and the entire record, provide no appropriate basis for the comparison of home market and U.S. levels of trade necessary to determine whether Bowe’s sales to one level of trade in the home market were more costly than its sales to a different level of trade in the United States. The most we can say is that Bowe has demonstrated that its sales to the home market are more costly (in terms of OE & C labor) than its sales to export markets generally (based solely on the gross amount of time OE & C employees devoted to the respective markets).

Further, Bowe has failed to demonstrate to the satisfaction of the Secretary that the claimed LOT adjustment is limited to differences which are “attributable to the different levels of trade, rather than to other factors.” See NTN Bearing Corp. v. United States, 905 F.Supp. 1083 (CIT 1995). Bowe based its claimed LOT adjustment for OE & C expenses on its unsupported assertion that it incurs additional expenses for “administration of commissions, trade-ins, special discounts and financing, special options, scheduling and paperwork as to installation, technical services, official government reporting, etc.” Bowe’s March 1, 1991 Questionnaire Response (Questionnaire Response) at B-ll. At no time did Bowe provide further explanation of what it meant by this statement. Bowe did assert that distributors would “assume many of the cost elements” which were borne by Bowe in selling to end users in the home market. See Bowe’s April 29, 1991 Supplemental Questionnaire Response (Supplemental Response) at 3. In its Second Remand the Department attempted to illustrate by example where Bowe’s claim lacked support in the evidence of record. Apparently, the Department’s choice of language instead conveyed the impression that it had confused the costs of certain commissions, discounts, and so forth with the costs associated with administering these programs. However, it is clear from the evidence submitted by Bowe, including the new information submitted to the Court for the first time in Bowe’s August 7,1996 “Plaintiffs Comments on Remand Determination” (Remand Comments), that the very differences cited by Bowe in defense of its LOT argument simply do not obtain. The record evidence does not reflect the differences due to costs associated with administering the programs cited by Bowe. Furthermore, certain evidence contradicts Bowe’s claims.

For example, Bowe claims that it would incur lower administrative costs for discount programs because it would offer “big, uniform discounts to distributors and a variety of small, sometimes special discounts to end users.” Bowe III at 240. The record evidence belies this claim. When asked to report its home market discounts (all to end users), Bowe listed only cash discounts for prompt payment. These discounts, “freely offered,” were “always available” and were often granted even though the customer paid after the deadline. See Questionnaire Response at B-3. As to its U.S. sales to distributors, Bowe reported a single discount rate it routinely offered. Therefore, in comparing the home market end-user discounts to U.S. distributor discounts, we find that Bowe offered a single big discount to the U.S. and a single small discount to the home market. We do not see how the administrative burden and amount of paperwork for these respective arrangements would differ measurably, nor did Bowe submit any evidence of this.

As the Court suggests, the situation with respect to commissions is the same, but supports the opposite conclusion from that urged by Bowe. Bowe reported two commission rates for its sales to end users in the home market and two commission rates for its sales to distributors in the United States. While the commission rates are different, we do not have a scintilla of evidence to suggest that the burden of administering the respective commission programs would differ at all, as in both cases they involve the same number of options.

With respect to the other activities that Bowe claims would affect its home market selling expenses to distributors, in our Second Remand we noted that Bowe “provided no evidence to support its assertion that it would not incur these expenses if it sold to distributors.” Second Remand at 15 (original emphasis). As indicated above at page 6, the evidence referred to was, obviously, not evidence from Bowe’s home market sales to distributors; we cannot ask Bowe to provide that which never existed. Bowe did have data regarding its sales to distributors in the United States and its sales of subject merchandise to distributors in other markets. See, e.g., Case Brief at 6. Bowe may also have possessed data on its sales of other products to distributors in the home market. While we will not speculate here as to the weight the Department would accord specific evidence not before it, Bowe had this evidence at hand, and, from it, Bowe could have fashioned the “worksheets and narrative explanation” lacking in this case. However, Bówe has supplied nothing beyond its unsupported assertions by which we can measure the relevance or impact of these activities upon Bowe’s selling expenses at different levels of trade.

Finally, as to Bowe’s claim that it would reduce its overall OE & C expenses by 52 percent if it sold to distributors, we note that this Court approved of our rejection of similar unsubstantiated percentage figures offered for advertising and traffic and shipment expenses. Bowe has simply posited, with no further explanation, a LOT adjustment equal to 52 percent of its OE & C expenses. We have no information as to how Bowe calculated this figure, nor has Bowe provided any analysis or worksheets to demonstrate how it arrived at its estimate. It is incumbent upon Bowe to substantiate this claimed adjustment and, in the case of a LOT adjustment, to the claimed adjustment to differences arising from different levels of trade, rather than to other factors. Instead, “Bowe has provided no evidence on the record, either in the form of worksheets or narrative explanation, to substantiate this claim or to explain how it arrived at this 52 percent figure.” Bówe 111 at 237, quoting Second Remand at 20. Further, the Department recognizes, as did the Court in Timken Co. v. United States, 930 F.Supp. 621 (CIT 1996), the distinction between a respondent’s use of methodologies which allocate expenses to different levels of trade and a respondent’s actually incurring the expenses differently due to selling to each level of trade. That B5we was able to devise an allocation methodology which purports to capture the appropriate LOT adjustment for OE & C (as for the other expenses discussed in Bówe III) does not indicate, ipso facto, that Bowe incurred the expenses differently at different levels of trade, or that the allocation methodology accurately reflects these levels of trade.

As Bowe has provided no evidence (aside from unsupported assertions) indicating what portion, if any, of OE & C expenses are attributable to the fact that Bowe’s home market sales were to end users rather than distributors, the Department has no basis for determining the amount of an appropriate LOT adjustment for these expenses.

As in the Second Remand, the Department concludes that, with respect to OE & C expenses. Bowe has substantiated neither its claim that a LOT adjustment is warranted, nor its quantification of such an adjustment. Further, Bowe has not demonstrated that the claimed price differential is wholly or partly attributable to differences in levels of trade. See 19 CFR § 353.56(a)(1). After thoroughly analyzing the information supplied by Bowe, we must conclude that Bówe has failed to establish that it is the claimed difference in levels of trade which has affected price comparability between Bowe’s U.S. and home market sales. We conclude, for the reasons reiterated above, that Bowe’s claims do not provide the Department with a reliable basis for calculating a LOT adjustment to FMV. The information supplied by Bowe regarding its OE & C expenses, including the Compendium and the Remand Comments, is both inconsistent in explaining the differences between levels of trade, and incomplete as to quantifying the proposed LOT adjustment. Therefore, the Department is not making a LOT adjustment for Bowe’s OE & C expenses in this redetermination.

Remand III at 6-13 (footnotes omitted) (emphasis in original).

Discussion

Commerce exercises broad discretion in granting or denying a level of trade adjustment. Bówe III, 951 F.Supp. at 233. The breadth of this discretion emanates from Commerce’s expertise in administering a complicated statutory scheme. See Smith-Corona Group v. United States, 1 Fed. Cir (T) 130, 131-32, 713 F.2d 1568, 1571 (1983). As broad as this discretion may be, it is not unlimited. Bówe III, 951 F.Supp. at 233. If a party submits evidence to establish a level of trade adjustment, (e.g., the cost data submitted in this case), and Commerce concludes in a general fashion that the evidentiary burden has not been met—i.e., the party has not demonstrated to the “satisfaction of the Secretary” that the claimed level of trade adjustment was limited to price differences which are attributable to the different levels of trade—the Court cannot meaningfully review Commerce’s denial of the adjustment. To enable meaningful judicial review, Commerce must offer a reasoned explanation for its denial of the claimed adjustment.

In this case, Bowe submitted a “Compendium” of data that included, inter alia, a comparison of labor hours devoted to certain tasks for home market and export sales. The data indicated that workers expended more labor hours for home market sales than for export sales. Bowe argued that this data documented higher costs which were associated with the home market, and that these higher costs (attributable to the end user level of trade) were reflected in price. It sought an adjustment to account for this difference.

In reviewing Remand I and II the Court, inquiring what else Bowe could have done to substantiate its request, concluded Commerce was imposing an unreasonable burden of proof in denying the adjustment. In Remand II Commerce did not sufficiently articulate the inadequacies of Bowe’s order entry and control data. In Remand III, quoted above, Commerce has sufficiently articulated the inadequacies of the data and the Court will sustain Commerce’s denial of Bowe’s order entry and control expense level of trade adjustment.

In elaborating its denial of the adjustment, Commerce indicated, (with specific references to the record supporting its conclusion), the following deficiencies in Bowe’s evidence: it did not sufficiently identify differing levels of trade in export markets; it did not sufficiently discount the impact of other factors (operating independently of levels of trade) that might account for the price differential; it did not sufficiently detail by worksheets and narrative explanation the costs associated with sales to distributors in the United States and other markets (to prove that certain expenses were not incurred for those sales); and it did not provide the analysis and worksheets for Bowe’s claimed percentage adjustment.

Here the Court needed a reasoned explanation for rejection of the claimed adjustment. Commerce provided a reasoned explanation with its “gaps and inconsistencies” rationale. This rationale, in turn, enabled the Court to conduct a meaningful review by assessing whether the record supported Commerce’s conclusion.

The record supports Commerce’s refusal to make a level of trade adjustment for Bowe’s order entry and control expenses. Commerce’s determination is not unreasonable and is supported by substantial evidence. Judgment will be entered accordingly-

JUDGMENT

This case having been submitted for a decision and the court, after due deliberation, having rendered a decision herein; now in conformity with that decision, it is hereby,

ORDERED, ADJUDGED, AND DECREED that the determination on remand of the Department of Commerce is sustained in its entirety. 
      
      . Familiarity with each of the Court’s prior opinions in this case is presumed.
     
      
      . Commerce was ordered to consider Bowe’s compendium of documents ("Compendium”) which detailed certain expenses that Bowe wanted subtracted from Commerce’s calculation of the foreign market value of its dry cleaning machinery, either as “level of trade” or "circumstances of sale” adjustments. Bowe I at 343.
     
      
      . Commerce’s redetermination, Remand III, was not published in the Federal Register. The Court, therefore, has quoted the pertinent portions of the results in their entirety.
     
      
      . “To establish the link between differences in level of trade and differences in price, an econometric analysis need not necessarily be performed. See Daewoo Elec. Co. v. International Union, 6 F.3d 1511, 1517 (Fed.Cir.1993). Use of cost criteria to satisfy the quantum of evidence required to establish entitlement to an adjustmenl is permissible. See Smith-Corona Group v. United States, 713 F.2d 1568, 1577 n. 26 (Fed. Cir.1983). Absent evidence that costs do not reflect value, id., Commerce may presume that costs are passed on to consumers. See Am. Alloys Inc. v. United States, 30 F.3d 1469, 1475 (1994). Commerce, however, ‘is not required to assume such a causal relationship.’ Mantex Inc. v. United States, 841 F.Supp. 1290, 1302 (1993).” Bówe III, 951 F.Supp. at 233-234.
     