Unfortunately, neither party has addressed the Supreme Court's clear seven-factor inquiry. Instead, the parties focused almost entirely on a three-factor test this court introduced in Huaiyin Foreign Trade Corp. v. United States, 322 F.3d 1369, 1380 (Fed.Cir.2003). Under this test, a statute only imposes a penalty when:
The CAFC has outlined a three-part test for evaluating whether a law is effectively penal. Huaiyin Foreign Trade Corp. v. United States, 322 F.3d 1369, 1380 (Fed.Cir.2003). An otherwise remedial law becomes subject to the ex post facto clause if: “(1) the costs imposed are unrelated to the amount of actual harm suffered and are related more to the penalized party's conduct, (2) the proceeds from infractions are collected by the state, rather than paid to the individual harmed, and (3) the statute is meant to address a harm to the public, as opposed to remedying a harm to an individual.” Id.
([Def.'s] Mot. to Dismiss 9.) Compare Notice of Initiation, 71 Fed. Reg. at 17,079 n. 6 with Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1377 (Fed. Cir. 2003) (quoting Initiation of Antidumping and Countervailing Duty Administrative Review, Requests for Revocation in Part and Deferral of Administrative Reviews, 63 Fed. Reg. 58,009, 58,010 (Dep't Commerce Oct. 29, 1998)). See Huaiyin, 322 F.3d at 1377-78 (upholding the language used as sufficient to "satisf[y] controlling statutory and regulatory requirements").
STANDARD OF REVIEW When reviewing ITC determinations in sunset reviews "[t]he court shall hold unlawful any determination, finding, or conclusion . . . found . . . to be unsupported by substantial evidence on the record, or otherwise not in accordance with law. . . ." 19 U.S.C. § 1516a(b)(1)(B)(i). "Substantial evidence is more than a mere scintilla." Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). "Substantial evidence is 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1374 (Fed. Cir. 2003) (quoting Consol. Edison Co., 305 U.S. at 229, 59 S.Ct. 206). In determining the existence of substantial evidence, a reviewing court must consider "the record as a whole, including evidence that supports as well as evidence that 'fairly detracts from the substantiality of the evidence.'"Huaiyin, 322 F.3d at 1374 (quoting Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 1562 (Fed. Cir. 1984)). DISCUSSION
"Substantial evidence is `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1374 (Fed. Cir. 2003) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "Substantial evidence requires more than a mere scintilla, but is satisfied by something less than the weight of the evidence."
"Substantial evidence is `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1374 (Fed. Cir. 2003) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). It is "more than a mere scintilla." Consol. Edison, 305 U.S. at 229.
Before passage of the CDSOA, "the duties collected pursuant to the anti-dumping statute were deposited with the Treasury for general purposes." Huaiyin Foreign Trade Corp. v. United States, 322 F.3d 1369, 1379 (Fed. Cir. 2003). The CDSOA changed this by providing that "[d]uties assessed pursuant to a countervailing duty order, an antidumping duty order, or a finding under the Antidumping Act of 1921 shall be distributed on an annual basis under this section to the affected domestic producers for qualifying expenditures."
After Sigma, Commerce has continued to apply this set of presumptions to all respondents subject to AD duty orders on merchandise from NME-designated countries, and Sigma has continued to be cited as controlling authority for judicial affirmation of Commerce's practice in this regard. See, e.g., Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1372, 1378 (Fed.Cir.2003); Transcom, 294 F.3d at 1373, 1381–82. Accordingly, it appears that the issue of Commerce's reliance upon a presumption of government control for respondents from NME-designated countries is settled (unless the Court of Appeals chooses to revisit it
This inquiry must consider “the record as a whole, including evidence that supports as well as evidence that ‘fairly detracts from the substantiality of the evidence.’ ” Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1374 (Fed.Cir.2003) (quoting Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 1562 (Fed.Cir.1984)). While contradictory evidence is considered, “the substantial evidence test does not require that there be an absence of evidence detracting from the agency's conclusion, nor is there an absence of substantial evidence simply because the reviewing court would have reached a different conclusion based on the same record.”
"Substantial evidence is `such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1374 (Fed. Cir. 2003) (quoting Consol. Edison Co., 305 U.S. at 229). In determining the existence of substantial evidence, a reviewing Court must consider "the record as a whole, including evidence that supports as well as evidence that `fairly detracts from the substantiality of the evidence.'"