Slip Op. 26-89
UNITED STATES COURT OF INTERNATIONAL TRADE
MIRROR METALS, INC.,
Plaintiff,
Before: Claire R. Kelly, Judge
v.
Court No. 24-00260
UNITED STATES, ET AL.,
Defendants.
OPINION AND ORDER
[Granting Plaintiff’s motion and remanding Commerce’s denials of Plaintiff’s requests for exclusion from Section 232 tariffs on steel imports.]
Dated: August 11, 2026
Erik D. Smithweiss, Katherine Anne Dobscha, and Sarah Ellen Raymond, Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP of New York, NY and Los Angeles, CA for Plaintiff Mirror Metals, Inc.
Tara Kathleen Hogan, U.S. Department of Justice, Commercial Litigation Branch – Civil Division of Washington, D.C. for Defendants United States and United States Customs and Border Protection. Of Counsel were Billie Kathryn Debrason and Rachel M. Morris, U.S. Department of Commerce, Office of Chief Counsel for Industry and Security of Washington, D.C. for Defendant United States Department of Commerce.
Kelly, Judge: Before the Court is Plaintiff Mirror Metals, Inc.’s (“Mirror
Metals” or “Plaintiff”) Rule 56.1 Motion for Judgment on the Agency Record. Pl. 56.1
Mot. J. Agency Rec., Jan. 14, 2026, ECF No. 31 (“Pl. Mot.”). Mirror Metals challenges
the U.S. Department of Commerce’s (“Commerce”) denial of its requests for certain
flat rolled stainless steel products to be excluded from tariffs imposed pursuant to Court No. 24-00260 Page 2
Section 232 of the Trade Expansion Act of 1962, as amended, Pub. L. 87-794, § 232,
76 Stat. 872, 877 (1962) (“Section 232”), codified at 19 U.S.C. § 1862 (2024). See id.
For the following reasons, Plaintiff’s motion is granted and Commerce’s
determinations are remanded for reconsideration or further explanation.
BACKGROUND
Acting pursuant to Section 232, 1 the President issued Proclamation 9705,
imposing a 25 percent tariff on imports of certain steel products and directing
Commerce to exclude a steel article determined not to be “produced in the United
States in a sufficient and reasonably available amount or of a satisfactory quality,”
or based on specific national security considerations. See Proclamation No. 9705 at
cls. 1–2, 83 Fed. Reg. 11,625, 11,627 (Mar. 15, 2018). It also directed Commerce to
issue procedures for exclusion requests within ten days. Id. Commerce, acting
through its Bureau of Industry and Security (“BIS”), promulgated regulations
establishing the exclusion process. See Section 232 Steel and Aluminum Tariff
Exclusions Process, 85 Fed. Reg. 81,060, 81,073–78 (Dep’t of Commerce Dec. 14, 2020)
(codified at former 15 C.F.R. pt. 705, supp. 1) (“15 C.F.R. pt. 705 supp. 1” or “the
regulations”). 2 The regulations specified “[a]n exclusion will only be granted if an
1 Section 232 of the Trade Expansion Act of 1962 empowers the President to adjust imports of articles that may threaten to impair the national security of the United States. 19 U.S.C. § 1862 (2024).
2 The former regulations, effective December 14, 2020, applied when Plaintiff filed
(footnote continued)
Court No. 24-00260 Page 3
article is not produced in the United States in a sufficient, reasonably available
amount, and of a satisfactory quality, or for specific national security considerations.”
Id. at § (c)(5)(i). On February 10, 2025, the President issued Proclamation 10896,
revoking the provisions of the prior proclamation that authorized Commerce to grant
exclusions from Section 232 tariffs with respect to imports of steel articles. See
Proclamation No. 10896 at cl. 7, 90 Fed. Reg. 9,817 (Feb. 18, 2025) (directing
Commerce to “take all necessary action to rescind the product exclusion process”).
Mirror Metals provides flat-rolled stainless steel with specialized textures and
surface treatments to customers in North America. See Compl. at ¶¶ 3–4, Dec. 20,
2024, ECF No. 2 (“Compl.”). It imports three varieties of flat-rolled stainless steel:
# 8 nondirectional finish steel, bright annealed finish steel, and # 4 satin finish steel
(collectively, “subject steel”). See id. at ¶ 4. Between October 2022 and March 2024,
Plaintiff submitted 63 exclusion requests from the Section 232 tariffs on the subject
steel. See id. at Ex. 1; Pl. Mot. at 16. Domestic companies Outokumpu Stainless USA
(“Outokumpu” or “the Objector”), North American Stainless, and Cleveland-Cliffs
Steel Inc. objected to Plaintiff’s exclusion requests. 3 Id. at ¶¶ 7–8. The International
the exclusion requests between 2022 and 2024. See Section 232 Steel and Aluminum Tariff Exclusions Process, 85 Fed. Reg. 81,060 (Dep’t of Commerce Dec. 14, 2020). Citations to the regulations at 15 C.F.R. pt. 705, supp. 1 are to the December 14, 2020 version, unless otherwise stated.
3 Because Commerce determined that Outokumpu was “at least one objector [who]
could meet the “quality, quantity, and timeliness criteria,” Defendants note it did not
(footnote continued)
Court No. 24-00260 Page 4
Trade Administration (“ITA”) reviewed the exclusion requests and corresponding
objections, rebuttals, and surrebuttals for the subject steel products and
recommended to BIS that Mirror Metals’ requests for exclusion be denied. Id. at ¶
88. BIS accepted the ITA’s recommendations and provided decision memoranda
explaining its rationale for denying the requests. Id.
Mirror Metals submitted 29 exclusion requests for “#8 non-directional finish”
steel products. See id. at Ex. 1. Outokumpu submitted objections to the requests
indicating that it could manufacture the product in its Calvert, Alabama facility
within 60 days. See, e.g., Exclusion Request No. 324905, AR0027. 4 The Objector
described #8 non-directional steel as “standard product.” See, e.g., id., AR0028. For
each request, Commerce concluded that at least one objector could meet the “quality,
quantity, and timeliness criteria,” and therefore denied the request. See, e.g., id.,
AR0004.
Mirror Metals submitted three exclusion requests for “bright annealed finish”
steel products. See Compl. at Ex. 1. Outokumpu filed objections, indicating that it
could produce a “mirror finished product with domestically melted steel” in its
consider submissions from the other objectors, North American Stainless and Cleveland-Cliffs Steel Inc., to make its determinations. See, e.g., Defs. Resp. at 9 (“Because Commerce found Outokumpu met the quality, quantity, and timeliness criteria, Commerce did not evaluate NAS’ submissions. AR1282.”).
4 “AR__” refers to pages of the public version of the administrative record, which
contains all public documents pertaining to each exclusion request. See Public Admin. Rec. for U.S. Dep’t of Commerce, Apr. 15, 2025, ECF Nos. 15-1–8; Amend. Admin. Rec., Nov. 25, 2025, ECF No. 27 (collectively, “Exclusion Requests”). Court No. 24-00260 Page 5
Calvert, Alabama facility. See, e.g., Exclusion Request No. 356053, AR1305. The
Objector reported that it could manufacture and deliver bright annealed finish
products within 55 days. See, e.g., id., AR1307–08. For each request, Commerce
concluded that at least one objector could meet the “quality, quantity, and timeliness
criteria.” See, e.g., id., AR1280.
Mirror Metals submitted 31 requests for exclusions for “#4 satin finish” steel
products. See Compl. at Ex. 1. Outokumpu filed objections, stating that it “produces
the product in the exclusion request.” See, e.g., Exclusion Request No. 334672,
AR1485. The Objector indicated that it could manufacture and deliver the product
within 55 days. See, e.g., id., AR1487–88. Commerce denied the exclusion requests,
concluding that “[At least one] objector meets the quality, quantity, and timeliness
criteria.” See, e.g., id., AR1464.
On December 20, 2024, Mirror Metals filed a complaint against Defendants,
challenging Commerce’s determinations denying the exclusion requests. See Compl.
On April 16, 2025, Defendants filed their answer to the complaint. See Defs. Answer,
Apr. 16, 2025, ECF No. 11. On January 14, 2026, Mirror Metals filed its Rule 56.1
motion for judgment on the agency record. See Pl. Mot. On April 17, 2026,
Defendants responded to Mirror Metals’ Rule 56.1 motion. See Defs. Resp. to Mot.
for J. on Agency Rec., Apr. 17, 2026, ECF No. 34 (“Defs. Resp.”). On June 5, 2026,
Mirror Metals filed its reply in support of its Rule 56.1 motion. [Pl.’s] Reply Brief in
Supp. of Pl.’s R. 56.1 Mot. for J. on the Agency Rec., June 5, 2026, ECF No. 37. Court No. 24-00260 Page 6
JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction under 28 U.S.C. § 1581(i) (2024). The Court reviews
an action brought under 28 U.S.C. § 1581(i) pursuant to the standards provided by
section 706 of the Administrative Procedure Act, as amended. See 28 U.S.C. § 2640(e)
(2024). The Act states that a reviewing court shall:
(2) hold unlawful and set aside agency action, findings and conclusions
found to be—
(A) arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law . . .
(F) unsupported by substantial evidence in a case subject to sections 556
and 557 of this title or otherwise reviewed on the record of an agency
hearing provided by statute.
5 U.S.C. § 706(2)(A), (F). Agency action is arbitrary and capricious if the agency
considered impermissible factors, ignored an important aspect of the problem,
contradicted the record evidence, or offered an implausible explanation. Motor
Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). Courts
ask whether the agency considered the relevant factors and data and articulated a
satisfactory explanation for its action. Id. at 43; Burlington Truck Lines, Inc. v.
United States, 371 U.S. 156, 168 (1962).
DISCUSSION
I. Denied Section 232 Exclusion Requests
Plaintiff argues that Commerce’s determinations to deny Plaintiff’s 63
exclusion requests are unlawful and arbitrary and capricious because Commerce
accepted and considered the Objector’s statements that were deficient under the Court No. 24-00260 Page 7
regulations and refused to consider Plaintiff’s rebuttal evidence demonstrating that
the subject steel could not be produced domestically. See Pl. Mot. at 2, 8–11, 47–49.
Defendants argue that Commerce reasonably denied Plaintiff’s exclusion requests by
considering the relevant regulatory criteria and offered reasoned explanations for its
decisions consistent with the evidence before it. Defs. Resp. at 13–20. Because
Commerce’s determinations ignore the regulatory requirements for objections and
fail to explain the denials of Plaintiff’s exclusion requests in light of the rebuttal
evidence, its determinations are remanded for reconsideration or further explanation.
A. Failure to Comply with Regulations Regarding Objections
Acting under Section 232, the President issued Proclamation 9705 which
imposed an additional 25 percent ad valorem tariff on certain steel imports and
authorized Commerce to consider exclusion requests for steel products determined to
be unavailable domestically in sufficient quantity or satisfactory quality or based on
specific national security considerations. See Proclamation No. 9705 at cls. 1–4. The
President also instructed Commerce to issue procedures creating a process by which
Commerce could consider affected parties’ requests for “exclusions” from Section 232
tariffs. See id. at cls. 3–4. Commerce, acting through the BIS, promulgated
regulations governing requests for exclusions from Section 232 tariffs. See generally
15 C.F.R. pt. 705, supp. 1. Commerce relied on BIS as “the lead agency” in deciding
whether to grant a request, and the ITA “analyz[ed] requests and objections to
evaluate whether there [was] domestic production available to meet the requestor’s Court No. 24-00260 Page 8
product needs.” See Submissions of Exclusion Requests and Objections to Submitted
Requests for Steel and Aluminum, 83 Fed. Reg. 46,026, 46,027 (Dep’t of Commerce
Sept. 11, 2018). 5 ITA then provided Commerce with a recommendation as to whether
it should grant an exclusion request. Id.6
During the relevant time period, the regulations permitted domestic
manufacturers of steel or aluminum in the United States to object to an exclusion
request. 15 C.F.R. pt. 705, supp. 1 § (d)(1). The regulations stated:
(4) Substance of objections to submitted exclusion requests. The
objection should clearly identify, and provide support for, its opposition
to the proposed exclusion, with reference to the specific basis identified
in, and the support provided for, the submitted exclusion request.
5 Only directly affected individuals or organizations located in the United States— including entities engaged in construction, manufacturing, or supplying steel products to users—could submit exclusion requests. 15 C.F.R. pt. 705, supp. 1 § (c)(1). The fillable form required requesters to supply specific factual information, including: (1) the product type and class for which the exclusion is requested, (2) the 10-digit Harmonized Tariff Schedule Code of the United States for the single product covered by the request, (3) the quantity of product required (stated in kilograms) under a oneyear exclusion, (4) estimates of the number of days required to take delivery of, manufacture, and ship the product covered by the request, (5) a full description of the physical properties and chemical composition of the product the requestor seeks to import, (6) any standards organizations that have set specifications for the product, (7) the application for the product, (8) why similar products manufactured in the United States are not suitable, and (9) domestic product availability information. See, e.g., Exclusion Request No. 324905, AR0009–0014.
6 Under the regulations in effect at the time, Commerce reviewed each exclusion
request to determine whether the requester’s steel product met any of three criteria: (1) “the article is not produced in the United States in a sufficient and reasonably available amount;” (2) “the article is not produced in the United States in a satisfactory quality;” or (3) “specific national security considerations” warrant relief. 15 C.F.R. pt. 705, supp. 1 § (c)(6). Exclusion requests that did not satisfy the requirements specified in the regulations would be rejected. 15 C.F.R. pt. 705, supp. 1 § (h)(1)(i).
Court No. 24-00260 Page 9
Id. at § (d)(4). Where an objector was not currently producing the product but could
produce and “immediately” (i.e., within eight weeks or, if after eight weeks, a date
earlier than when the requester could obtain the quantity from the foreign supplier)
make available the requester’s required product quantity, the regulations required
the objector to explain the anticipated timeline to start production of the steel
included in the exclusion request to which it was objecting, with supporting evidence
substantiating its claimed delivery schedule. Id.
Specifically, the fillable objection form required an objector to: (1) indicate
whether the objector currently manufactures or can immediately manufacture the
product, (2) state the time period within which the objector can produce the product,
(3) state whether the objector manufactures, or can immediately manufacture, a
substitute product, (4) discuss the suitability of the objector’s product, (5) provide a
technical description of the product’s characteristics, (6) state what percentage of the
requested tonnage the objector can manufacture, and (7) detail the total delivery
time. See, e.g., Exclusion Request No. 324905, AR0025–0028.
The regulations also required Commerce’s decision memoranda to respond to
any objections, rebuttals, and surrebuttals concerning the requests. 15 C.F.R. pt.
705, supp. 1 § (h)(2)(i). Although an agency generally may rely on certified factual
statements, it must still consider countervailing evidence that “create[s] doubt” about
those statements’ veracity. Seneca Foods Corp. v. United States, 663 F. Supp. 3d
1325, 1336 (Ct. Int’l Trade 2023) (“Seneca I”) (citing Allied Tech. Grp., Inc. v. United Court No. 24-00260 Page 10
States, 649 F.3d 1320, 1331 (Fed. Cir. 2011)). Ultimately, “[a]n exclusion will only be
granted if an article is not produced in the United States in a sufficient, reasonably
available amount, and of a satisfactory quality, or for specific national security
considerations.” 7 15 C.F.R. pt. 705, supp. 1 § (c)(5)(i).
Here, Commerce accepts the Objector’s conclusory statements despite their
failure to satisfy the objection requirements in subsection (d)(4) and therefore fails to
give effect to the regulations’ requirements for valid objections. The regulations
require an objector to clearly explain and substantiate its claims by addressing the
specific grounds and evidence presented in the exclusion request. See id. at § d(4).
More specifically, the “objection should clearly identify, and provide support for, its
opposition to the proposed exclusion.” Id. Further, with respect to timing, the
regulations provide, “[i]t is incumbent on both the exclusion requester, and objecting
producers, to provide supplemental evidence supporting their claimed delivery
times.” See id. at § (c)(6)(i). Yet, the Objector in this case does not support its
assertions and provides no supplemental evidence regarding delivery times. See
generally Exclusion Requests. Defendants argue that the regulations were intended
only to remind the parties that it was their burden to create an adequate record. See
Defs. Resp. at 25 (citing QVD Food Co. v. United States, 658 F.3d 1318, 1324 (Fed.
Cir. 2011)). However, the regulations state their purpose:
7 Here, Plaintiff does not request an exclusion based on national security concerns, and Commerce does not identify any national security concerns as a basis for denial of Plaintiff’s exclusion requests. See generally Exclusion Requests. Court No. 24-00260 Page 11
(a) Scope. This supplement specifies the requirements and process for
how directly affected parties located in the United States may submit
requests for exclusions from the duties and quantitative limitations
imposed by the President. This supplement also specifies the
requirements and process for how parties in the United States may
submit objections to submitted exclusion requests for relief from the
duties or quantitative limitations imposed by the President and the
process for rebuttals to submitted objections and surrebuttals
(collectively, “232 submissions”). This supplement identifies the time
periods for such submissions, the methods of submission, and the
information that must be included in such submissions.
15 C.F.R. pt. 705, supp. 1 § (a). The phrase “specifies the requirements” means the
regulation delineates what parties must supply in support of their positions. See
Requirement, Merriam-Webster.com, https://www.merriam-webster.com/
dictionary/requirements (last visited Aug. 6, 2026) (defining “requirement” as
something required, necessity, “something essential to the existence or occurrence of
something else”).8
Here, the Objector repeats the same general response in each of its objections—
the product in the exclusion request is a “standard product” that it can produce
domestically in its Calvert, Alabama mill. 9 Contrary to subsection (d)(4)’s
8 QVD Food Co. reminds the parties that they bear the burden of creating an adequate record, and the regulations remind the parties of what is specifically required to create that adequate record. See QVD Food, 658 F.3d at 1324; 15 C.F.R. pt. 705, supp. 1.
9 For example, in response to the prompt, “[i]ndicate what type of order the Exclusion
Request that is the subject of the Objection Filing would pertain to,” the Objector states, “Standard Product,” and under comments, “Outokumpu can produce the product in the exclusion request.” See, e.g., Exclusion Request No. 324905, AR0024–
(footnote continued)
Court No. 24-00260 Page 12
requirements, the Objector’s statements fail to substantiate the claim that it can
produce the subject steel by addressing the specific grounds and evidence presented
in the exclusion request. 10 See 15 C.F.R. pt. 705, supp. 1 § (d)(4). For example, in
Exclusion Request No. 324905, Plaintiff requests an exclusion related to the “#8 nondirectional finish steel” product it claims is not domestically available. See Exclusion
Request No. 324905, AR0009–0023. In the exclusion request, Plaintiff identifies
what it claims is the closest domestically available product which has a “#8
directional finish,” and explains why it is an inadequate substitute for the subject
steel by citing different physical characteristics relating to, e.g., polishing method,
reflectivity, and clarity, which depart from Plaintiff’s quality standards for #8 nondirectional finish steel. See id.
0025. In response to the prompt, “discuss the suitability of your organization’s steel product compared to that identified by the Exclusion Requestor,” the Objector states, “[t]he product in the exclusion request is standard product. Outokumpu can produce the product in the exclusion request domestically in its mill in Calvert, Alabama.” See, e.g., id., AR0025. In response to the prompt, “identify the reasons your organization objects to an exclusion request being granted to the applicant,” the Objector states, “Outokumpu can produce the product in this exclusion request domestically in its mill in Calvert, Alabama.” See, e.g., id., AR0027. 10 The regulations also required the substance of surrebuttals to “address a rebuttal
to an objection to the exclusion request made by the requester.” 15 C.F.R. pt. 705, supp. 1 § (g)(3). In many of its surrebuttals, the Objector claims generally, “the product in the exclusion request is standard product,” and adds “Outokumpu can meet all of the specifications of the product in this exclusion request.” See, e.g., Exclusion Request No. 324905, AR0035–0036. Although the surrebuttal mentions “specifications,” it does not identify the product specifications Plaintiff offers in its rebuttal, evidence to demonstrate that the subject steel is not domestically available. See, e.g., id. Therefore, the Objector’s surrebuttals likewise failed to meet the regulatory requirements. See 15 C.F.R. pt. 705, supp. 1 §§ (g)(3), (h)(1)(iv). Court No. 24-00260 Page 13
According to the regulations, to successfully object to a requester’s claim that
its subject steel product is “[n]ot produced in the United States in a satisfactory
quality,” an objector must demonstrate that “the steel . . . being produced by an
objector can meet . . . the quality (e.g., industry specs or internal company quality
controls or standards)” standards. 15 C.F.R. pt. 705, supp. 1 § (c)(6)(ii). Here, the
objection does not address or even mention Plaintiff’s support for its request, such as
Plaintiff’s explanation that the nearest domestically available product, “#8
directional finish” steel product, fails to meet its quality standards for polish,
reflectivity, and clarity. See Exclusion Request No. 324905, AR0024–0028. Thus, the
objection fails to meet the regulatory requirements to successfully demonstrate that
the subject steel is domestically available. See 15 C.F.R. pt. 705, supp. 1 § (d)(4). In
the decision memorandum, even though the objection fails to meet the regulation’s
subsection (d)(4) requirements, Commerce denies the exclusion. Exclusion Request
No. 324905, AR0005. Notably, Commerce acknowledges that the Objector fails to
meet subsection (d)(4)’s requirement that it address the basis and supporting
evidence for the exclusion request, i.e., a “type 304 #8 non-directional mirror finish,”
yet it still accepts the Objector’s vague statements as basis for denial:
The request specifies type 304 #8 non-directional mirror finish.
Outokumpu’s product matches the specifications of the request;
however, Outokumpu does not specifically mention the type 304 #8 nondirectional mirror finish in the objection offering. ITA notes that
Outokumpu includes a statement that, “The product in this exclusion
request is standard product. Outokumpu can meet all of the
specifications of the product in this exclusion request.” As such, ITA has
determined that the specific statement made by the objector satisfies Court No. 24-00260 Page 14
and meets the specifications listed in the exclusion request. Therefore,
Outokumpu meets the quality criterion.
Id.; see 15 C.F.R. pt. 705, supp. 1 § (d)(4).
Defendants argue that Commerce reasonably relied on the Objector’s
statements because “[a] written statement made under penalty of perjury is
considered reliable evidence in situations with even more consequence than a nonprejudicial denial of an exclusion request.” Defs. Resp. at 16. They argue that “[i]n
the absence of contrary record evidence . . . Commerce may consider an objector’s
statement, certified under penalty of perjury, to be reliable evidence.” Id. at 15 (citing
Seneca Foods Corp. v. United States, 740 F. Supp. 3d 1336, 1346, 1348 (Ct. Int’l Trade
2024) (“Seneca II”), aff’d, Fed. Cir. No. 25-1310). Although the regulations require
parties making submissions to “legally certify the veracity of the submission,” the
purpose of the regulations titled “Section 232 Steel and Aluminum Exclusions
Process,” was to delineate a process for making exclusion requests, objections,
rebuttals, and surrebuttals. See generally 85 Fed. Reg. 81,060, 81067 (Dep’t of
Commerce Dec. 14, 2020). Even in the absence of contrary evidence, which as
discussed below is not always the case here, certified statements are of no value if
they do not tend to support the determination. The Court did not hold, in Seneca I
nor in Seneca II, that Commerce may accept certified statements uncritically; rather,
it held that Commerce must consider countervailing evidence and may rely on parties’
factual representations only where that reliance reflects “reasoned decision-making.”
Seneca I, 663 F. Supp. 3d at 1339; see also Seneca II, 740 F. Supp. 3d at 1346 (“The Court No. 24-00260 Page 15
problem with Commerce’s denials in Seneca I . . . was not that the agency accepted
[the objector’s] representations, but rather that it failed to make apparent its
rationale for crediting [the objector’s] representations despite Seneca’s email
submissions.”). Here, it is unclear whether the Objector’s statement that it can meet
“the specifications of the product” means that the Objector certified its ability to meet
Mirror Metals’ quality requirements for each product. Indeed, a certified ambiguous
statement proves little and cannot supplant Commerce’s obligation to provide a
reasoned basis for its determinations.
The regulations state that “[o]bjection filings that do not satisfy the
requirements specified in paragraphs (b) and (d) will not be considered.” 15 C.F.R.
pt. 705, supp. 1 § (h)(1)(ii). Because Commerce denied Mirror Metals’ exclusion
requests based on its determinations that the subject steel was domestically
available, and those determinations relied on objections that failed to comply with 15
C.F.R. pt. 705, supp. 1 § (d)(4), the matter is remanded to Commerce for further
explanation or reconsideration.11
B. Failure To Assess Rebuttal Evidence
Even if the Objector satisfied subsection (d)(4)’s substantive requirements for
objections, Commerce does not address Plaintiff’s rebuttal evidence that may
11 Should Commerce, on remand, find that the objections raised are insufficient and thus the exclusions should have been granted, Commerce’s failure to consider countervailing rebuttal evidence is moot. However, in the interest of judicial economy, the Court addresses the issue.
Court No. 24-00260 Page 16
undermine the Objector’s assertions. Therefore, even if Commerce explains on
remand why the Objector’s submissions satisfy subsection (d)(4), it must also address
the evidence bearing on whether the subject steel is domestically available and
reasonably explain why it credits the Objector’s evidence over Plaintiff’s evidence.
The regulations require Commerce’s determination to include an explanation
responsive to any objections, rebuttals, and surrebuttals. See 15 C.F.R. pt. 705, supp.
1 § (h)(2)(i) (“[t]he U.S. Department of Commerce[‘s] response to an exclusion request
will also be responsive to any of the objection(s), rebuttal(s) and surrebuttal(s) for
that submitted exclusion request.”). Plaintiff’s rebuttal evidence contains business
information and communications it contends undermine the Objector’s statements
that it can make the subject steel. See, e.g., Exclusion Request No. 346364, AR0690
(the Objector’s managers confirmed in a telephone conference in 2022 that the
Objector could not make the #8 non-directional finish but rather could add reflective
gloss to base steel); Exclusion Request No. 324905, AR0033 (the Objector’s website
explains that the reflective gloss is not polishing, and therefore different from Mirror
Metals’ polished and finished product, and that the website does not mention #8
finish at all); Exclusion Request No. 341039, AR0689 (a November 2022 email from
the Objector to Plaintiff which stated that it can only produce a “#8 finish” using
third-party processors).
In many instances, Commerce’s reason for disregarding the rebuttal evidence
is that it consulted a “subject matter expert,” who it claims, “could not definitively Court No. 24-00260 Page 17
connect the information . . . to the requested product.” See e.g., Exclusion Request
No. 324905, AR0005. For example, the Exclusion Request No. 324905 decision
memorandum states, in part:
ITA notes Mirror Metals provided [confidential business information] to
support its claim that Outokumpu cannot provide the requested
product. [Subject matter expert] guidance was requested to determine
if the information in the emails referenced the requested product. The
[subject matter expert] could not definitively connect the information in
the emails to the requested product. ITA finds that nothing in the sales
correspondence contradicts the certified statements made by
Outokumpu in its objection.
Id. 12 For this denial, Commerce does not explain why the subject matter expert could
not “definitively connect” the rebuttal evidence to the subject steel or why “nothing
in the sales correspondence contradicts” the Objector’s statements.
In other instances, Commerce refuses to consider Plaintiff’s evidence
indicating that the Objector can only produce the subject steel outside the United
States. For example, in the Exclusion Request No. 341039 decision memorandum,
the ITA’s recommendation disclaims any authority to consider “country-of-origin”
evidence in its analysis and recommendation and instead defers to BIS. Exclusion
12 See also, e.g., Exclusion Request Nos. 324938, AR0037; 38231, AR0076; 338228, AR0114; 338379, AR0149; 339249, AR0190; 339250, AR0231; 339256, AR0273; 339242, AR0310; 339240, AR0351; 346185, AR0437; 346215, AR0479; 346220, AR0524; 346225, AR0569; 334672, AR1355; 334673, AR1405; 334674, AR1454; 334675, AR1503; 334676, AR1552; 334677, AR1602; 339264, AR1652; 339269, AR1702; 339271, AR1749; 339540, AR1796; 339616, AR1843; 339627; AR1890. Court No. 24-00260 Page 18
Request No. 341039, AR0660. 13 However, BIS concludes without confronting the
issue that there is no “country of origin” question and accepts the Objector’s
unsupported claim that it can or does produce the subject steel in the United States.
Id., AR0657.
However, in some instances, Commerce reasonably disregards certain rebuttal
evidence for staleness, reasoning that Plaintiff’s email evidence was dated more than
90 days prior to the date of the exclusion request. See, e.g., Exclusion Request No.
356061, AR1281. 14 Commerce, as a fact-finder, may reasonably consider the
evidence’s currency or staleness in evaluating its reliability and probative value. See
5 U.S.C. § 556(d); see also, e.g., Seneca II, 740 F. Supp. 3d 1336 at 1354 (finding
Commerce’s internal 90-day “cutoff” “reasonable”). Although Commerce addresses
some rebuttal evidence, its decision ignore other rebuttal evidence without
explanation is arbitrary and capricious.
II. Remedy
Defendants note that on remand, if Commerce determines that Plaintiff should
have been granted the exclusion requests, there is a question as to how Commerce
13 See also, e.g., Exclusion Request Nos. 342642, AR0700; 342653, AR0739; 342672, AR0779; 342668, AR0819; 342650, AR0858; 391496 AR1026–27; 357875, AR1301; 416927, AR1111.
14 See also Exclusion Request Nos. 355972, AR0900; 359427, AR0941; 386011, AR0982; 386019, AR1994; 390092, AR2043; 390578, AR2095; 390582, AR2147; 390585, AR2407; 390589, AR2251; 390591, AR2303; 390594, AR2355; 390598, AR2199; 390599, AR2459; 390883, AR2511; 390900, AR2563; 356053, AR1196; 356061, AR1251; 357875, AR1301; 416927, AR1111; 418325, AR1068; 429045, AR2664; 429057, AR2768; 429034, AR2716; 390408, AR2615.
Court No. 24-00260 Page 19
may provide a remedy because Proclamation 10896 has since revoked Commerce’s
authority to grant Section 232 tariff exclusions for steel imports. See Defs. Resp. at
28 n.13. At oral argument, Defendants stated that, “[i]f Commerce were to reach a
contrary decision on remand, it would document its reasons for doing so, and
[Commerce] would probably need some sort of court order to effectuate that.” Oral
Argument at 53:34–44, July 22, 2026, ECF No. 41 (“Oral Argument”). Likewise,
Plaintiff stated that “[w]e would probably need a court order along the lines of the
AM/NS Calvert decision, requiring reliquidation of some entries . . . .” Id. at 51:05–
14. If, on remand, Commerce reconsiders its determination and concludes that it
should have granted the exclusions, Commerce shall undertake whatever action is
necessary to effectuate them, including directing United States Customs and Border
Protection to reliquidate the subject entries as necessary. See 28 U.S.C. § 2643(c)(1)
(the Court may “order any other form of relief that is appropriate in a civil action . .
.”).
CONCLUSION
Commerce’s denial of Plaintiff’s exclusion requests was arbitrary and
capricious because Commerce improperly relied on invalid objections, failed to
critically examine Plaintiff’s countervailing evidence, and did not reasonably explain
the connection between its determinations and the evidence before it. Therefore,
Commerce’s determinations denying the 63 exclusion requests are remanded for
reconsideration or further explanation. In accordance with the foregoing, it is Court No. 24-00260 Page 20
ORDERED that Commerce’s denials of Mirror Metals’ exclusion requests,
specifically Exclusion Request Nos. 324905, 324938, 338231, 338228, 338379, 339249,
339250, 339256, 339242, 339240, 346176, 346185, 346215, 346220, 346225, 346364,
341039, 342642, 342653, 342672, 342668, 342650, 355972, 359427, 386011, 391496,
418325, 416927, 369673, 356053, 356061, 357875, 334672, 334673, 334674, 334675,
334676, 334677, 339264, 339269, 339271, 339540, 339616, 339627, 342310, 386019,
390092, 390578, 390582, 390598, 390589, 390591, 390594, 390585, 390599, 390883,
390900, 390408, 429045, 429034, 429057, 452856, 452861, are remanded; and it is
further
ORDERED that Commerce shall either explain further or reconsider its
determinations, and shall file its remand redetermination with the Court within 90
days of this date; and it is further
ORDERED that if Commerce concludes that it should have granted the
exclusions, Commerce shall undertake whatever action is necessary to effectuate
them, including directing United States Customs and Border Protection to
reliquidate the subject entries as necessary; and it is further
ORDERED that the parties shall have 30 days to file comments on the remand
redetermination; and it is further
ORDERED that the parties shall have 30 days to file their replies to the
comments on the remand redetermination; and it is further
Court No. 24-00260 Page 21
ORDERED that the parties shall file the Joint Appendix within 14 days after
the filing of replies to the comments on the remand redetermination; and it is further
ORDERED that Commerce shall file the administrative record within 14 days
of the date of filing its remand redetermination.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: August 11, 2026
New York, New York