Upcoming November 9 Deadline: USITC Requests Input on Section 338 Trade Authority – Customs & International Trade Law Firm
The U.S. International Trade Commission (USITC) is seeking public comments on how it should implement Section 338(g) of the Tariff Act of 1930, a longstanding but rarely used provision addressing discriminatory trade practices by foreign governments.
In a notice published in the Federal Register on September 9, 2026, the USITC announced that it is considering establishing procedures to identify discriminatory foreign trade practices, collect information from affected businesses, and provide findings and recommendations to the President.
The initiative could have significant implications for U.S. businesses engaged in international trade, particularly exporters facing discriminatory treatment abroad and importers potentially affected by future trade measures.
KEY TAKEAWAYS:
- USITC Seeks Input on Section 338: The U.S. International Trade Commission (USITC) is requesting public comments on implementing procedures under 19 U.S.C. § 1338(g) to identify and investigate discriminatory foreign trade practices.
- Potential for Additional Tariffs: Section 338 authorizes the President to impose additional tariffs of up to 50% on products from countries found to engage in certain discriminatory trade practices.
- New Opportunities for Businesses to Report Discrimination: The proposed procedures could provide U.S. exporters and other affected businesses with a more formal process for reporting discriminatory foreign trade barriers.
- No Immediate Changes to Import Requirements: The notice does not impose new tariffs or restrictions, but future action under Section 338 could affect import costs and international supply chains.
- Comments Due November 9, 2026: Interested parties have until 5:15 p.m. Eastern Time to submit comments on the proposed procedures.
What Is Section 338 of the Tariff Act of 1930?
Section 338, codified at 19 U.S.C. § 1338, provides authority to address certain discriminatory practices by foreign countries that disadvantage U.S. commerce.
The statute addresses situations in which foreign governments impose unreasonable charges, restrictions, or other burdens on U.S. products or otherwise discriminate against U.S. commerce compared with commerce from other countries.
Under Section 338(a), the President may impose additional duties of up to 50% ad valorem on products of a foreign country after making the requisite findings of discrimination.
Section 338 also provides for additional measures under specified circumstances, including the potential exclusion of certain imports if the statutory conditions are met.
Importantly, the USITC does not itself impose these tariffs. Its role under Section 338(g) is to identify discriminatory conduct and provide information and recommendations to the President.
Why Is the USITC Revisiting Section 338?
Although Section 338 has existed for nearly a century, it has not played a prominent role in modern U.S. trade enforcement.
The USITC’s notice explains that the agency historically investigated discriminatory foreign trade practices under Section 338 and its predecessor, Section 317 of the Tariff Act of 1922.
These investigations addressed a variety of foreign practices, including discriminatory customs valuation methods and charges imposed on U.S. exports.
However, the USITC acknowledges that it currently lacks an established process for identifying discriminatory practices, gathering relevant information, and reporting findings to the President. The agency is now considering whether formalizing those procedures would allow it to better fulfill its statutory responsibilities.
This development does not establish new tariffs or initiate a country-specific enforcement action. Rather, it represents a potential step toward more systematic use of an existing trade law.
What Information Is the USITC Requesting?
The USITC is seeking input from businesses, trade associations, and other interested parties on several issues.
- Defining discriminatory trade practices
The Commission is asking how it should interpret unreasonable or discriminatory conduct under Section 338.
Examples of potentially relevant practices include unequal customs duties, discriminatory import restrictions, and foreign regulations that disadvantage U.S. products relative to competing foreign products.
- Identifying foreign trade barriers
The agency wants information about specific foreign government actions that burden U.S. commerce.
Businesses may be able to provide valuable information about discriminatory customs procedures, import fees, product restrictions, or other barriers encountered in foreign markets.
- Establishing information-gathering procedures
The USITC is considering how it should collect information from affected businesses and other interested parties.
A significant concern is the potential sensitivity of information submitted by companies operating internationally.
The agency specifically asks whether existing protections for confidential business information are sufficient and how it might address concerns about retaliation by foreign governments.
- Reporting findings to the President
The Commission is also seeking input on how it should evaluate allegations of discriminatory conduct and communicate its findings and recommendations to the President.
Questions include whether investigations should focus on specific allegations or broader patterns of discrimination, what factors should inform recommendations, and whether reports should be made public.
What Could This Mean for Importers and Exporters?
For U.S. exporters, a more active Section 338 process could provide another avenue for bringing discriminatory foreign trade practices to the federal government’s attention.
Companies facing unequal treatment in foreign markets may have an opportunity to provide evidence that informs future USITC findings and recommendations.
For importers, the potential implications are different.
If the President ultimately exercises authority under Section 338, additional tariffs or other import restrictions could affect merchandise from countries found to engage in discriminatory practices.
Businesses with international supply chains should therefore monitor developments under Section 338, particularly where their operations involve countries or industries that could become the subject of future scrutiny.
How to Submit Comments
Diaz Trade Law can assist with drafting written comments and making sure your voice is heard. The deadline to submit comments is November 9, 2026, at 5:15 p.m. Eastern Time.
Comments may be submitted through the USITC’s Electronic Document Information System (EDIS) at https://edis.usitc.gov or by email to [email protected], with docket number MISC-053 included in the subject line.
Businesses considering submitting comments should carefully evaluate the information they intend to disclose, particularly where submissions involve sensitive commercial practices or concerns about foreign government retaliation.
Diaz Trade Law will continue monitoring developments involving Section 338 and their potential implications for U.S. businesses engaged in international trade. For assistance filing comments or with other customs and trade matters, get in touch at [email protected] or 305-456-3830.
This article is provided for general informational purposes and does not constitute legal advice.
Read more:
