Skyview Cabinet USA, Inc. v. United States , 2024 CIT 132 ( 2024 )

Slip Op. No. 24-132
UNITED STATES COURT OF INTERNATIONAL TRADE
SKYVIEW CABINET USA, INC.,
Plaintiff,
v.
Before: Stephen Alexander Vaden,
UNITED STATES,
Judge
Defendant,
Court No. 1:22-cv-00080 (SAV)
and
MASTERBRAND CABINETS, INC.,
Defendant-Intervenor.
OPINION
[Sustaining Customs’ Remand Determination.]
Dated: November 27, 2024
Kyl J. Kirby, Kyl J. Kirby, Attorney and Counselor at Law, P.C., of Fort Worth, TX,
for Plaintiff Skyview Cabinet USA, Inc.
Ioana C. Meyer, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, for Defendant United States. With her
on the brief were Brian M. Boynton, Principal Deputy Assistant Attorney General;
Patricia M. McCarthy, Director; and Tara K. Hogan, Assistant Director, Commercial
Litigation Branch; Chelsea A. Reyes and John M. Flanagan, Attorneys, Enforcement
and Operations Office of the Chief Counsel, U.S. Customs and Border Protection.
Timothy C. Brightbill, Wiley Rein LLP, of Washington, DC, for Defendant-Intervenor
MasterBrand Cabinets, Inc. With him on the brief were Elizabeth S. Lee and Laura
El-Sabaawi.
Court No. 1:22-cv-00080 (SAV) Page 2
Vaden, Judge: Plaintiff Skyview Cabinet USA, Inc. (Skyview) comes before
the Court once again to challenge U.S. Customs and Border Protection’s (Customs)
Remand Determination that Skyview evaded tariffs on its wooden cabinets. Like its
prior case before this Court, Skyview argues that Customs did not support its findings
with substantial evidence. For the reasons set forth below, Customs’ Remand
Determination is SUSTAINED.
BACKGROUND
The Court presumes familiarity with the facts of this case as set out in its
previous opinion and now recounts those facts relevant to the review of the Remand
Determination. See Skyview Cabinet USA, Inc. v. United States, No. 1:22-cv-00080,
47 CIT __, 2023 Ct. Intl. Trade LEXIS 95 (June 20, 2023) (Skyview I).
I. Procedural Background Prior to Remand
This case arises from the Department of Commerce’s (Commerce) antidumping
and countervailing duty orders on wooden cabinets and vanities from China. Wooden
Cabinets and Vanities and Components Thereof from the People’s Republic of China:
Antidumping Duty Order, 85 Fed. Reg. 22,126 (Dep’t of Com. Apr. 21, 2020); Wooden
Cabinets and Vanities and Components Thereof from the People’s Republic of China:
Countervailing Duty Order, 85 Fed. Reg. 22,134 (Dep’t of Com. Apr. 21, 2020)
(collectively, the Orders). MasterBrand alleged that Skyview attempted to evade the
Orders by transshipping Chinese cabinets through Malaysia via Rowenda Kitchen
Sdn Bhd (Rowenda), a Malaysian company. MasterBrand Allegation at 9, J.A. at
80,166, ECF No. 33. In its allegation, MasterBrand presented photographs taken by
Court No. 1:22-cv-00080 (SAV) Page 3
a third-party market researcher who visited Rowenda’s facility in Malaysia. Id. at
80,239–243. Customs redacted these photographs as business confidential
information and provided a narrative description of what those photographs depicted.
Oral Arg. Tr. at 37:7–14, ECF No. 40; Resp. to Mot. for J. on the Agency R. at 10, ECF
No. 25. Although Customs used these photographs in its determination, Customs
only gave Skyview access to the public version of the record with the narrative
description. Pl.’s Reply at 10, ECF No. 31; Oral Arg. Tr. at 37:8–14, ECF No. 40;
Remand Determination at 2, ECF No. 53.
Skyview also presented its own photographs and videos to Customs depicting
Rowenda’s Malaysian facility. Skyview Req. for Information Resp., J.A. at 80,551–
554, 80,694–768, ECF No. 33. Skyview represented that Rowenda manufactured the
products at issue. See Compl. ¶ 11, ECF No. 2; Pl.’s Mot. for J. on Agency R. at 7–10,
ECF No. 30 (Pl.’s Br.). To prove Rowenda manufactured its cabinets, Skyview
claimed it sent a “local contact” to verify Rowenda’s production facility. Skyview Req.
for Information Resp., J.A. at 80,996–997, ECF No. 33. The only evidence Skyview
presented regarding the local contact’s efforts, however, was an airline ticket and
accompanying itinerary. Skyview Suppl. Req. for Information Resp., J.A. at 81,409–
413, ECF No. 33. No new photographs, videos, or affidavits emerged from the
contact’s visit.
After submitting its evidence allegedly depicting Rowenda’s manufacturing
process, Skyview changed its story. It now claimed that Rowenda did not
manufacture the cabinets alone; instead, Roxy Heritage Furniture Manufacturer Sdn
Court No. 1:22-cv-00080 (SAV) Page 4
Bhd (Roxy Heritage) either manufactured or helped manufacture the wooden
cabinets at issue. Skyview Voluntary Submission, J.A. at 2,515–516, ECF No. 32.
According to Skyview, this switch was because Skyview only recently learned about
Roxy Heritage’s involvement. Id. at 2,507.
Customs finished its investigation and determined there was “substantial
evidence that … [Skyview] … evaded [the Orders].” Final Determination, J.A. at
81,613, ECF No. 33. Relevant to the Remand Determination, Customs found that
Skyview’s photographs and videos allegedly depicting Rowenda’s Malaysian
manufacturing facility were not credible. Id. at 81,618. Conversely, it found
MasterBrand’s photographs and videos to be reliable evidence showing a lack of
manufacturing capability at Rowenda’s factory. Id. at 81,620. Skyview never saw
MasterBrand’s photographs during the entire pendency of the original proceedings
before Customs. Oral Arg. Tr. at 64:20–65:6, ECF No. 40.
Skyview timely filed an action in this Court on March 10, 2022, challenging
Customs’ affirmative Final Determination of Evasion and the administrative review
affirming that determination. See Compl. ¶ 1, ECF No. 2. It alleged multiple claims,
including that Customs failed to support its Final Determination with substantial
evidence and that Customs violated Skyview’s due process rights by withholding the
business confidential information. Pl.’s Br. at 12–20, 30–34, ECF No. 30.
The Court held oral argument on March 30, 2023. ECF No. 39. The resulting
opinion sustained Customs’ Final Determination of Evasion. Skyview I, 47 CIT__,
2023 Ct. Intl. Trade LEXIS 95, at *46. Based on an assessment of both Customs’
Court No. 1:22-cv-00080 (SAV) Page 5
Final Determination of Evasion and its administrative review, this Court determined
that Skyview’s complaints were without merit. Id. at *17. The Court found,
“Although Customs redacted the adverse photos and videos of [Rowenda’s] Malaysia
facility as business confidential information, Skyview was on notice that it needed to
provide evidence that actual manufacturing occurred in Malaysia; and Skyview had
numerous opportunities to present contrary evidence refuting the allegation.” Id. at
*17–18. Skyview appealed to the United States Court of Appeals for the Federal
Circuit. Notice of Appeal, ECF No. 44.
II. Royal Brush Opinion from the Federal Circuit
Soon after Skyview appealed this Court’s decision, the Federal Circuit decided
Royal Brush Manufacturing v. United States. 75 F.4th 1250 (Fed. Cir. 2023). Royal
Brush concerned a pencil importer accused of violating the Enforce and Protect Act
by transshipping pencils from China through the Philippines to avoid antidumping
duties on pencils of Chinese origin. Id. at 1253. The pencil company argued that
Customs based its determination on confidential information that was improperly
withheld, denying the pencil company an opportunity to rebut this evidence. Id. at
1254–55.
The Federal Circuit agreed and held that Customs’ refusal to disclose the
confidential information was a “clear violation of due process” because it deprived the
parties of notice and an opportunity to respond. Id. at 1259. Moreover, the Federal
Circuit observed that no “legitimate government interest” protected Customs’
practice of not disclosing evidence used against parties during an administrative
Court No. 1:22-cv-00080 (SAV) Page 6
investigation. Id. Although the Federal Circuit highlighted Customs’ constitutional
violation, the court also held that Customs’ failure to follow its own regulations was
sufficient for a remand. Id. at 1262–63. Those regulations allowed for rebuttal when
Customs “relied on new factual information” in its verification report. Id. at 1262;
see also 19 C.F.R. § 165.23(c)(1). Customs had therefore violated its own regulations
by denying Royal Brush an opportunity to rebut the withheld information. Royal
Brush, 75 F.4th at 1262.
III. Remand and the Present Dispute
On January 25, 2024, Customs sought a voluntary remand of this case from
the Federal Circuit to address the Royal Brush decision. Order, ECF No. 46. The
Federal Circuit remanded the case to the Court of International Trade with
instructions to remand to Customs for further proceedings consistent with Royal
Brush. Id. This Court complied with the Federal Circuit’s order and remanded to
Customs that same day. Remand Order, ECF No. 48.
On May 20, 2024, Customs issued its Remand Determination. Remand
Determination, ECF No. 53. Customs granted Skyview access to the business
confidential information contained in the administrative record that it had not made
available during the initial investigation. Id. at 2. Customs also allowed Skyview to
submit rebuttal factual information and written arguments. Id. Although Skyview
now had access to the previously confidential information, Skyview only relied for its
defense on the same information it previously had used. Id. at 13; Pl.’s Letter Re: Ct.
Ordered Remand Proceedings at 1–12, ECF No. 59 (Pl.’s Letter). Because Skyview
Court No. 1:22-cv-00080 (SAV) Page 7
did not present any new information, Customs continued to find that Skyview evaded
the Orders. Remand Determination at 2, ECF No. 53.
Skyview now argues the Remand Determination was incorrect for the same
reasons it raised previously in this Court. Namely, Skyview continues to argue that
Customs’ determination was not based on substantial evidence because “[Customs]
clearly did not take into account metadata available to it during the administrative
proceedings but made conclusory statements that the photographs and videos were
irrelevant and unreliable.” Pl.’s Remand Comments at 3, ECF No. 61.
The Government argues that, even though Skyview was able to view the
previously withheld business confidential information, it “chose to submit written
arguments that were almost the same as its written submissions during Customs’
investigation.” Def.’s Resp. to Comments on Final Results of Remand Determination
at 8, ECF No. 62. Additionally, the Government asserts that the metadata taken
together with the “submitted exhibits ‘do not demonstrate actual production’ and fail
to confirm the country of origin of the merchandise as Malaysia.” Id. at 9.
Defendant-Intervenor MasterBrand likewise argues that Skyview “seeks to
relitigate arguments that [Skyview] previously raised before this Court.”
MasterBrand’s Comments in Supp. of Remand Determination at 2, ECF No. 63. It
retorts that the photographs’ and videos’ metadata cannot be substantiated, and the
metadata are based on business confidential information that Skyview already had
access to during Customs’ initial investigation. Id. at 3. MasterBrand notes that
Skyview’s photographs and videos of Rowenda’s Malaysian facility “were not the sole,
Court No. 1:22-cv-00080 (SAV) Page 8
or even principal, basis for [Customs’] determination.” Id. at 4. Customs instead
found that Skyview’s “submissions were replete with discrepancies and unreliable.”
Id. One of those discrepancies is that, during the original agency proceedings,
Skyview changed its story and asserted that it was not Rowenda that manufactured
the cabinets but rather Roxy Heritage. Id. Thus, MasterBrand observes that
Skyview is once again modifying its claim — back to Rowenda — as to which company
is the true manufacturer of the cabinets. Id. at 4–5.
JURISDICTION AND STANDARD OF REVIEW
This Court has jurisdiction pursuant to 19 U.S.C. § 1517(g) and 28 U.S.C. §
1581(c). Under the Enforce and Protect Act, the reviewing court must examine
Customs’ final determination, see 19 U.S.C. § 1517(c), and administrative review, see
id. § 1517(f). Id. § 1517(g) (providing for court review of both determinations). In its
review of Customs’ determinations, the Court examines “whether any determination,
finding, or conclusion is arbitrary, capricious, an abuse of discretion, or otherwise not
in accordance with law.” Id. § 1517(g)(2)(B). Agency action constitutes an abuse of
discretion “where the decision is based on an erroneous interpretation of the law, on
factual findings that are not supported by substantial evidence, or represents an
unreasonable judgment in weighing relevant factors.” Star Fruits S.N.C. v. United
States, 393 F.3d 1277, 1281 (Fed. Cir. 2005). Where the agency “offers insufficient
reasons for treating similar situations differently,” such actions are arbitrary. SKF
USA Inc. v. United States, 263 F.3d 1369, 1382 (Fed. Cir. 2001) (quoting Transactive
Corp. v. United States, 91 F.3d 232, 237 (D.C. Cir. 1996)).
Court No. 1:22-cv-00080 (SAV) Page 9
In reviewing agency action, it is “the duty of the courts to determine in the final
analysis and in the exercise of their independent judgment, whether on the whole
record the evidence in a given instance is sufficiently substantial to support a finding,
conclusion, or other agency action as a matter of law.” Nippon Steel Corp. v. United
States, 458 F.3d 1345, 1351–52 (Fed. Cir. 2006) (citations omitted). Substantial
evidence “means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Consol. Edison Co. v. NLRB, 305 U.S. 197, 229
(1938) (citations omitted). Additionally, “The court reviews remand determinations
for compliance with the court’s [remand] order.” Bonney Forge Corp. v. United States,
No. 1:20-cv-03837, 47 CIT __, 2023 Ct. Intl. Trade LEXIS 125 at *7 (Aug. 21, 2023)
(quoting Nakornthai Strip Mill Pub. Co. Ltd. v. United States, 32 CIT 1272, 1274
(2008)).
DISCUSSION
After Royal Brush, this Court remanded to Customs for it to cure the
procedural error. Customs did so. All that remains for this Court to consider is
whether the parties submitted any additional arguments in response to the newly
disclosed information. Skyview reiterates its claim that Customs failed to support its
determination with substantial evidence; and it makes the general assertion that
Customs ignored relevant evidence, like photographs and videos with metadata, that
disproves evasion. The Government and MasterBrand respond that Skyview is
attempting to relitigate the same issues it raised previously without providing any
new information. This Court agrees with the Government and MasterBrand.
Court No. 1:22-cv-00080 (SAV) Page 10
Skyview did not make any new arguments on remand, and the merits of Skyview’s
metadata argument reinforces Customs’ evasion determination.
A procedural error is not a substantive error. A substantive error is an error
that “affects a party’s substantive rights or the outcome of the case.” Substantive
Error, Black’s Law Dictionary (10th ed. 2014); see NTN Bearing Corp. v. United
States, 74 F.3d 1204, 1207 (Fed. Cir. 1995) (defining substantive errors as “errors that
result from errors of judgment”). In contrast, a procedural error is a “mistake in
complying with the rules or steps in the legal process.” Procedural Error, Black’s Law
Dictionary (10th ed. 2014); see Mid Continent Nail Corp. v. United States, 846 F.3d
1364, 1383 (Fed. Cir. 2017) (defining procedural error as either a “technical failure …
with the APA’s procedural requirements[,]” or a “complete failure to [comply with the
APA’s procedural requirements.]”) (internal quotation marks omitted).
The Federal Circuit’s Royal Brush opinion identified a procedural error of
constitutional magnitude regarding Customs’ prior practice. In Royal Brush, the
Federal Circuit explained that, when an agency makes certain information
confidential, bases its determination on that information, and refuses to allow the
accused to view it, a procedural due process violation occurs. See Royal Brush, 75
F.4th at 1262; see also Stone v. FDIC, 179 F.3d 1368, 1376 (Fed. Cir. 1999)
(“Procedural due process guarantees are not met if [the party adverse to the agency
action] has notice only of … portions of the evidence and the deciding official considers
new and material information.”). As the United States Supreme Court has repeatedly
held, “The essential requirements of due process … are notice and an opportunity to
Court No. 1:22-cv-00080 (SAV) Page 11
respond.” Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 546 (1985). When an
agency cures the procedural due process error by providing the affected party with
notice and an opportunity to respond, the court is then left to consider the underlying
substantive validity of the agency’s action. Cf. Ward v. United States Postal Serv.,
634 F.3d 1274, 1282 (Fed. Cir. 2011).
Here, Customs did not initially allow Skyview to view the business confidential
information used to make Customs’ evasion determination. Pl.’s Br. at 33–34, ECF
No. 30. This was a procedural due process error. On remand, Customs corrected the
error and allowed Skyview to view the previously confidential information. Remand
Determination at 5–6, ECF No. 53. With the procedural error corrected, Skyview
must submit new evidence or new arguments into the record to succeed. Otherwise,
the record evidence remains the same; and the substantive result will not change.
This is so because of an interesting wrinkle in pre-Royal Brush procedure in Enforce
and Protect Act cases.
Although Skyview did not have access to all the evidence before Customs, once
its case reached this Court, it did receive access to all the evidence — including the
confidential business information. USCIT R. 73.3(a)(3); Oral Arg. Tr. at 37:23–38:10,
ECF No. 40. Skyview then had the ability to make any argument it wished regarding
the insufficiency of that evidence before this Court. For a Royal Brush procedural
error to cause a change of substantive result, Skyview’s lack of access to the
confidential information at the agency level must have prevented it from either (1)
introducing evidence into the record that would have proven exculpatory or (2)
Court No. 1:22-cv-00080 (SAV) Page 12
making an argument in its own defense before the agency. Cf. Fine Furniture
(Shanghai) Ltd. v. United States, 36 CIT 1206, 1215 (2012) (noting that, without a
substantive error, the procedural error can be harmless). Absent the introduction of
new evidence or a new substantive argument, correction of the Royal Brush
procedural error will not result in ultimate victory for the accused evader. The
evidentiary balance will remain unchanged.
The Court previously determined that the record evidence was sufficient to
find Skyview had evaded Customs duties. Skyview I, 47 CIT__, 2023 Ct. Intl. Trade
LEXIS 95, at *46. Skyview has not introduced new evidence on remand, and its legal
arguments remain nearly unchanged from Skyview I. Compare Pl.’s Br. at 3–5, 12–
20, ECF No. 30 (describing Plaintiff’s substantial evidence argument for Skyview I),
with Pl.’s Remand Comments at 5–10, ECF No. 61 (describing Plaintiff’s substantial
evidence argument post remand in virtually identical language). Customs provided
Skyview with ample opportunity to rebut MasterBrand’s allegations. Remand
Determination at 6–7, ECF No. 53 (“It was on this day that the remand parties were
officially permitted to receive the business confidential information for purposes of
the remand proceeding …. [Customs] advised the parties that they could submit
written arguments pertinent to the business confidential information on the
administrative record …..”). Despite Customs’ providing Skyview with the
unredacted business confidential information and an opportunity to respond, id.,
Skyview did not provide any new evidence and merely restated its previous,
unsuccessful arguments. Pl.’s Letter at 3–12, ECF No. 59; Pl.’s Remand Comments
Court No. 1:22-cv-00080 (SAV) Page 13
at 5–10, ECF No. 61. Because Skyview has not produced any new record evidence,
the Court’s previous holding regarding Skyview’s substantial evidence argument
stands. Skyview I, 47 CIT__, 2023 Ct. Intl. Trade LEXIS 95, at *20–27.
Skyview’s claims about the photographs’ and videos’ metadata likewise fails.
First, the photographs do not depict anything that discredits Customs’ determination.
Second, Skyview’s flip-flopping on the question of who manufactured the cabinets
discredits Skyview’s arguments and reinforces Customs’ determination.
Skyview points to the photographs’ and videos’ metadata as proving that they
were taken outside Rowenda’s Malaysian facility before the export date of the goods
in question. Pl.’s Remand Comments at 4–5, ECF No. 61. Accepting that as true, the
photographs and videos still do not undermine Customs’ determination. Customs
asked Skyview for proof of actual manufacturing in Malaysia. CF-28 Req., J.A. at
80,451–454, ECF No. 33. Skyview presented photographs depicting Rowenda’s
company sign and office building; wooden pallets in a warehouse; various machines,
including a grooving machine, banding machine, and a panel saw machine; an office
waiting room; and a conference table. See Skyview Req. for Information Resp., J.A.
at 80,475–476, 80,694–715, 80,744–745, ECF No. 33; Skyview I, 47 CIT__, 2023 Ct.
Intl. Trade LEXIS 95, at *5–6. Skyview also presented short, four- to fifteen-second
video clips depicting a handful of workers using the various machines. Skyview
Email Resp. to Customs., J.A. at 80,562, ECF No. 33. On remand, Skyview presents
these same piecemeal photographs and videos. Pl.’s Remand Comments at 4, ECF
No. 61.
Court No. 1:22-cv-00080 (SAV) Page 14
The evidence still does not depict actual manufacturing of cabinetry. Skyview
I, 47 CIT__, 2023 Ct. Intl. Trade LEXIS 95, at *17–18. As this Court previously
stated, “Skyview was free to begin outside the alleged manufacturing facility and
create a video walkthrough demonstrating actual manufacturing,” but Skyview did
not. Id. at *43. Because the photographs and videos do not depict anything different
from Skyview I — even when considering the metadata — this Court’s prior holding
stands. Id. at *40–44.
Skyview has further discredited itself by changing its story once again and
alleging that Rowenda — not Roxy Heritage — manufactured the cabinets. Pl.’s
Remand Comments at 4–5, ECF No. 61. Skyview has been anything but consistent
on what entity it claims manufactured the cabinets at issue. At first, Skyview
claimed Rowenda manufactured its cabinets. Skyview CF-28 Resp., J.A. at 80,514–
529, ECF No. 33. Rowenda submitted the “piecemeal” photos and videos that
Skyview then turned over to Customs. Skyview Suppl. CF-28 Response, J.A. at
80,694–762, ECF No. 33 (photographs of Rowenda’s facility submitted to Customs);
Skyview I, 47 CIT ___, 2023 Ct. Intl. Trade LEXIS 95, at *43. Skyview also sent a
“local contact” to “verify [Rowenda’s] capacity, review[] manpower, machines, and raw
material.” Skyview Req. for Information Resp., at 3–4, J.A. at 80,996–997, ECF No.
33. Although Skyview claimed this contact verified Rowenda’s manufacturing
capabilities, Skyview did not provide any evidence collected by the local contact other
than an airline ticket and itinerary as proof he made the trip. Skyview Suppl. Req.
for Information Resp., J.A. at 81,409–413, ECF No. 33; Final Determination, J.A. at
Court No. 1:22-cv-00080 (SAV) Page 15
81,617 n.36, ECF No. 33. Skyview then changed its story and claimed Roxy Heritage
manufactured its cabinets. Skyview Voluntary Submission, J.A. at 2,516, ECF No.
32. It explained the change by claiming it only recently learned of Roxy Heritage’s
involvement in the manufacturing process. Id. at 2,507. On remand, Skyview is
returning to its original theory of the case: Rowenda, not Roxy Heritage,
manufactured Skyview’s cabinets. Pl.’s Remand Comments at 4–5, ECF No. 61.
At this point, there should be no question as to the basic facts of the case. Yet,
based on Skyview’s representations, the record is torn between two possible
manufacturers. This ambiguity suggests that, instead of basing its claims on a clear
understanding of the facts, Skyview shifts its story depending on what facts may give
it the better result at any given stage of the litigation. It was exactly this type of
story-shifting that led Customs to find MasterBrand’s evidence more reliable than
Skyview’s. See Remand Determination at 18, ECF No. 53 (finding that Skyview’s
shifting story for which company manufactured the cabinets “led [Customs] to the
conclusion that the information submitted by Skyview was unreliable.”). By shifting
its story yet again about who manufactured its cabinets, Skyview further discredits
itself and reinforces Customs’ determination that MasterBrand had more reputable
photographs, videos, and descriptions of Rowenda’s Malaysian facility. Id. at 24.
Customs carried out its statutory duty to investigate the allegation of evasion
by soliciting information from the parties, issuing supplemental questionnaires to
clarify apparent errors and omissions in the evidence, and assessing the record as a
whole to make a determination as to the credibility of the parties’ claims. See Remand
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Determination at 37–38, ECF No. 53. It identified the discrepancies and omissions
that it deemed fatal to the Plaintiff’s case and explained why Skyview’s evidence did
not fill the gaps it identified. See id. at 5–8. As this Court previously wrote, “Skyview
was on notice that it needed to provide evidence that actual manufacturing occurred
in Malaysia; and Skyview had numerous opportunities to present contrary evidence
refuting the allegation.” Skyview I, 47 CIT __, 2023 Ct. Intl. Trade LEXIS 95, at *17–
18. The remand provided Skyview with yet another opportunity to supplement the
evidentiary record. It failed to do so. The evidentiary balance therefore remains the
same.
CONCLUSION
Although Customs provided Skyview with an opportunity to submit new
evidence bolstering its claims on remand, Skyview did not submit any new factual
information. Because of that failure, Skyview has failed to shift the evidentiary
balance in its favor. For the same reasons stated in Skyview I, Customs’ Remand
Determination is SUSTAINED. 47 CIT __, 2023 Ct. Intl. Trade LEXIS 95, at *20–
40, *44–46.
/s/ Stephen Alexander Vaden
Stephen Alexander Vaden, Judge
Dated: November 27, 2024
New York, New York