Executive Summary On September 4, 2026, the U.S. International Trade Commission announced it is accepting public comments on how it should fulfill its statutory obligations under Section 338(g) of the Tariff Act of 1930—a nearly century-old trade statute that grants the president authority to impose tariffs of up to 50 percent and even exclude imports entirely in response to discrimination against U.S. commerce. The ITC acknowledges it does not currently have an established practice for carrying out its Section 338 responsibilities—notable given that the Commission’s own notice traces a “robust and active role” implementing this authority and its predecessor statute from the 1920s through the 1940s, before the practice fell dormant after World War II. The Commission is inviting input on fundamental questions: What makes foreign conduct “unreasonable or discriminatory”? How should the Commission gather and analyze information? What factors—including the risk of foreign government reprisal against those who share information—prevent the public from providing relevant data? With the statute now actively used against Canada—and the administration signaling willingness to deploy it against other trading partners—this proceeding represents a critical opportunity for importers, exporters, and logistics providers to shape the framework that will govern future Section 338 actions. Written submissions should be received by the Commission no later than 5:15 p.m. on November 9, 2026.

ITC Seeks Public Input on Section 338: Defining “Discriminatory Practices” Before the Next Tariff Wave

(ITC就338条款"歧视性做法"的界定公开征求意见)

1 · What Is Section 338 and Why Is It Suddenly Relevant?

A Dormant Statute Awakened

Section 338 of the Tariff Act of 1930 has been on the books for nearly a century, but until July 2026, it had never been used to impose tariffs. That changed when President Trump signed three proclamations imposing 50 percent additional duties on certain Canadian imports in the alcoholic beverages, dairy, and motor vehicles sectors, effective August 22. Following Canadian retaliatory tariffs, additional tariffs and import bans were announced on September 8.

The Legal Framework

Section 338 authorizes the president to impose additional duties—up to 50 percent ad valorem—when a foreign country:

1. Imposes “unreasonable” charges, exactions, regulations, or limitations on U.S. products that are not equally enforced against like products of other countries
2. Discriminates against U.S. commerce through customs duties, fees, classifications, regulations, restrictions, or prohibitions in a manner that places U.S. commerce at a disadvantage compared to other countries
3. Discriminates or imposes unequal burdens on U.S. commerce where the beneficiary is the industry of a third country

If discrimination continues after presidential action, Section 338 authorizes the president to completely exclude designated products of the offending country from importation into the United States.

The ITC’s Statutory Role

Section 338(g) assigns the ITC an ongoing fact-finding duty: the Commission must “ascertain and at all times be informed of” discriminations against U.S. commerce and bring them to the president’s attention with recommendations for action. Critically, the law does not require the ITC to make a formal finding before the president imposes tariffs—the president may act independently.

2 · Why the ITC Is Seeking Comments Now

No Established Practice—But Not Unprecedented Territory

The ITC has acknowledged that it does not currently have an established practice for meeting its obligations under Section 338(g). Unlike Section 301 investigations (which have detailed procedural regulations) or Section 337 unfair import investigations (which have well-developed case law), Section 338 has remained largely dormant in recent decades. The Commission must now build a framework essentially from scratch—but the Commission’s own notice makes clear this is a revival, not an invention.

A Once-Active Practice: the Commission’s request for comments traces the history of Section 338 and its 1922 predecessor, Section 317, describing a period when the Commission “played a robust and active role” in this area. Early on, the Commission established formal rules of procedure for these investigations, allowed significant public participation, and routinely sent questionnaires to U.S. consular officials and exporting firms to gather information. Over the years, this work identified a range of discriminatory foreign practices—from inconsistent customs duty calculations by French officials to an Australian requirement that U.S. products include their “inland carriage” costs in duty assessments—and the Commission reported on this activity in its annual reports into the 1940s.

Why the Practice Lapsed: following World War II, the establishment of the most-favored-nation obligation under Article I of the General Agreement on Tariffs and Trade of 1947 led some policymakers to question whether Section 338 had become a “dead letter.” Notably, Congress considered repealing the statute when drafting the Trade Act of 1974, but the Treasury Department successfully argued it remained “useful authority against foreign countries which discriminate” against U.S. commerce, and Section 338 survived in the law—dormant, but intact—until its use against Canada in July 2026.

The Broader Trade Policy Context

The request for comments comes as the administration has increased reliance on a range of statutory authorities to advance its trade policies. Section 338 is now the latest tool in an expanding arsenal that includes Sections 232, 301, 122, and IEEPA-based tariffs. The ITC proceeding represents an opportunity to shape how this new tool will be used—including whether it establishes a formal procedure for stakeholders to allege discriminatory foreign measures and respond to allegations raised by others.

The “Next Target” Question

While the ITC proceeding is formally about process, the underlying question is unmistakable: which countries will be next? The statute applies broadly to any country found to discriminate against U.S. commerce. The ITC’s decisions about how to identify and report such discrimination will directly affect whether—and how quickly—future Section 338 tariffs are imposed on other trading partners.

3 · What the ITC Is Asking

The ITC’s request for comments poses fundamental questions about how it should implement Section 338(g). Key topics include:

3.1 Defining “Unreasonable or Discriminatory” Conduct

The ITC is asking for input on what makes foreign conduct unreasonable or discriminatory in the context of international commerce. This includes:

• Unreasonable charges, exactions, regulations, or limitations on the disposition, transportation in transit, or reexportation of U.S. articles that are not equally enforced against like articles of other countries
• Discrimination by law or administrative practice through customs, tonnage, or port duties, fees, charges, classifications, regulations, conditions, restrictions, or prohibitions that place U.S. commerce at a disadvantage
• Third-country beneficiary discrimination, where unequal burdens on U.S. commerce benefit the industry of a third country

3.2 Methods and Mechanisms of Burden

The ITC wants information on specific methods and mechanisms by which such conduct burdens U.S. commerce. This is not a theoretical exercise—the Commission is seeking concrete examples of how foreign practices disadvantage U.S. exporters, importers, and supply chain participants.

3.3 Information Gathering and Analysis

The ITC is asking how it should obtain and analyze relevant information and what factors may prevent members of the public from providing it. This includes questions about:

• Confidentiality protections and whether existing safeguards for confidential business information or privacy laws are sufficient
• Burdens on small and medium-sized enterprises
• Availability of data from foreign governments
• Role of industry associations and trade groups
• The risk of foreign government reprisal: the notice specifically flags the possibility that public disclosure that a party provided information to the Commission might prompt direct or indirect retaliation from the foreign government implicated—and asks what steps the Commission should take to mitigate that risk

The Commission is also asking how it should analyze and use the information it receives once collected, including whether it should investigate specific allegations individually or rely on aggregated information, and whether information submitted for Section 338 purposes should also be usable for other Commission work (such as Section 332 reports) absent the submitter’s separate permission.

Transparency of Outcomes: notably, the Commission has historically kept its Section 338 reports and recommendations to the President confidential rather than public. The current request asks whether that practice should continue, and, separately, whether the Commission should continue its historical practice of sharing some information about its Section 338 work with the public—and if so, what kind. Stakeholders who believe greater transparency would improve accountability or predictability may want to weigh in directly on this point.

3.4 Procedures for Stakeholder Participation

The notice creates an opportunity for stakeholders to help shape whether the Commission establishes a new procedure for stakeholders to allege discriminatory foreign measures and respond to allegations raised by others. Companies, associations, and industry groups with exposure to foreign market-access barriers should assess whether submitting comments would help protect their interests.

3.5 Confidential Business Information

Submissions containing confidential business information (CBI) must conform to the Commission’s Rules of Practice and Procedure (19 CFR 201.6). The cover page and individual pages of a CBI submission must be clearly marked “confidential” or “nonconfidential,” and the confidential material itself must be identified using brackets. Non-CBI submissions will be made available for public inspection in full.

4 · Who Should Comment—and Why

Affected Stakeholders

The ITC’s notice identifies several categories of interested parties:

Why Participation Matters

The framework the ITC develops will govern how future Section 338 proceedings unfold. Stakeholders that participate now can:

• Shape the definition of “discriminatory” conduct
• Influence evidentiary standards for establishing discrimination
• Advocate for procedural protections (due process, confidentiality, right to respond)
• Ensure their interests are heard before tariffs or import bans are imposed on their supply chains

5 · What Logistics Providers Must Do Now

5.1 Assess Your Exposure

Logistics providers should assess whether their clients—or their own operations—are exposed to potential Section 338 action:

• Which countries in your supply chain might be subject to future Section 338 proceedings?
• What products might be targeted?
• What would the impact of 50% tariffs or import bans be on your business?

5.2 Consider Filing Comments

The November 9 deadline is approaching. Companies and associations with significant exposure should consider filing comments addressing:

• Definitional questions: What should count as “unreasonable” or “discriminatory”?
• Procedural questions: What due process protections should be provided to parties accused of discrimination?
• Evidentiary questions: What types of evidence should the ITC consider?
• Practical concerns: How can the ITC gather information without imposing undue burdens?

5.3 Monitor the ITC Docket

The ITC proceeding is designated Investigation No. MISC-053. Comments may be filed through the Commission’s Electronic Document Information System (EDIS) at https://edis.usitc.gov or by email to Secretary@usitc.gov, with docket number MISC-053 included in the subject line and the submission itself. Written submissions should be received no later than 5:15 p.m. on November 9, 2026. Current points of contact for substantive or media questions are listed in the official Federal Register notice.

5.4 Coordinate with Trade Associations

Industry associations are likely to file comments representing broad member interests. Logistics providers should consider:

• Joining an association that is filing comments
• Providing input to associations on the practical impacts of Section 338
• Coordinating with peers to present a unified industry perspective

5.5 Prepare for Future Section 338 Actions

Regardless of the outcome of this proceeding, the administration has demonstrated willingness to use Section 338 aggressively. Logistics providers should:

• Build tariff modeling capabilities for 50% and 100% duty scenarios
• Identify alternative sourcing for products that might be targeted
• Review contracts for force majeure and tariff adjustment clauses
• Monitor ITC and White House announcements for signs of future action

6 · Conclusion: A Framework Still Taking Shape

The ITC’s request for comments on Section 338(g) implementation marks the start of a process that will determine how this newly active statute is applied going forward. With the first Section 338 tariffs already in effect against Canada—and the administration signaling willingness to use the authority more broadly—the framework that emerges from this proceeding is likely to shape the treatment of other trading partners in the months ahead.

Key Takeaways

The Bottom Line

Section 338 is no longer a historical footnote. It is an active trade enforcement tool—and the ITC is building the framework that will govern its future use. How the Commission defines “discriminatory” conduct and structures its fact-finding process in response to this comment period will likely inform how, and how quickly, the statute is applied to other trading partners.

The message is clear: Section 338 has moved from a dormant, century-old statute to an active enforcement tool, and the process now underway at the ITC will shape how it is used next.

This analysis reflects the ITC’s Request for Comments Regarding Implementation of 19 U.S.C. 1338(g), Investigation No. MISC-053, issued September 4, 2026, and published in the Federal Register on September 9, 2026 (91 FR 57387). Written submissions should be received no later than 5:15 p.m. on November 9, 2026. Organizations with exposure to foreign market-access barriers or potential Section 338 action should consult with trade counsel for guidance tailored to their specific circumstances.