On February 2, 2026, the United States Court of Appeals for the Federal Circuit issued decisions in the International Trade Commission’s (“ITC”) companion appeals from the Court of International Trade’s (“CIT”) decisions, CVB, Inc. v. United States, 681 F. Supp.3d 1313 (Ct. Int’l Trade 2024) (“CVB appeal”) and OCP v. United States, 776 F. Supp.3d 1245 (Ct. Int’l Trade 2025) (“OCP appeal”). Both cases concerned the ITC’s challenge to the court’s disclosure of certain information designated as business proprietary during the agency’s administrative proceedings. The Federal Circuit addressed the merits of the ITC’s contentions in the OCP appeal, ultimately affirming the CIT. It then dismissed the CVB appeal as moot, the issues having been reviewed and resolved in the OCP appeal.
The Federal Circuit reviewed the language of the relevant statutes to reach two key holdings. First, it held that 19 U.S.C. § 1516a, which provides the CIT judicial review authority over antidumping and countervailing duty determinations, preserves the common law right of public access and provides the CIT authority to determine what information should be disclosed and the terms under which disclosure should occur. In other words, the CIT is not bound by the Commission’s confidentiality designations and is not barred from disclosing otherwise non-proprietary information.
Second, the Federal Circuit held that 19 U.S.C. § 1677f, which governs access to information in antidumping and countervailing duty investigations, provides no support for the ITC’s longstanding practice of automatically designating questionnaire responses as confidential. Rather, the statute requires public disclosure of information “that is not designated as proprietary by the person submitting it.” The Federal Circuit held that when the Commission treats the entirety of the questionnaire response as confidential (without a request by the party submitting it), the agency does not fulfill its obligation to release non-confidential information. It further held that, in any event, “the submitter’s request that material be treated as confidential is not determinative.” Emphasizing that the statutory structure makes clear that only information “properly designated” is entitled to confidential treatment, the Federal Circuit explained that “certain categories of information are not entitled to confidential treatment.” It delineated such categories of information as including (1) publicly available information; (2) proprietary information “if it is disclosed in a form which cannot be associated with, or otherwise be used to identify, operations of a particular person; and (3) stale information unless disclosure would cause substantial competitive harm.
Importantly, the Federal Circuit nevertheless agreed with the Commission that the agency and the parties must have the opportunity to object to the release of confidential information before its disclosure. It found that the CIT’s provision of the opportunity to object and present witnesses in a confidentiality hearing in the underlying OCP litigation is “exemplary of the procedural approach that the CIT must follow.”
Until the ITC issues further guidance regarding bracketing of questionnaire responses and treatment of information designated as business proprietary information, companies should proceed with caution and bracket information they consider to be business proprietary in questionnaire responses. They should be prepared to substantiate competitive harm resulting from disclosure, particularly for older data. Companies should also expect more rigorous scrutiny of redacted information in litigation before the CIT, especially if such information is publicly available, disclosed in a form that cannot be associated with the operations of the submitter, or stale.
