12.09.2026 Regulation #USA #World #Import #Export #Duties #Bans

USITC opens comments on rarely used Section 338 tariff power until Nov 9

The U.S. International Trade Commission (USITC) on September 9, 2026 published a Federal Register notice seeking public comments on how it should carry out its duties under Section 338(g) of the Tariff Act of 1930 (19 U.S.C. 1338) — a discrimination provision that had sat unused for decades (govinfo.gov, FR 2026-18385). The proceeding is designated Investigation No. MISC-053, and comments are due by November 9, 2026, 5:15 p.m. Eastern time.

What Section 338 authorizes

Subsection (a) lets the president impose additional duties when a foreign country places an "unreasonable charge, exaction, regulation, or limitation" on U.S. goods, or discriminates against U.S. commerce through customs or port fees and classification (Cornell Law, 19 U.S.C. 1338). Under subsection (d), such duties may not exceed 50% ad valorem and take effect 30 days after the presidential proclamation (ibid.). If the discrimination continues, subsection (b) allows a separate proclamation excluding the country's goods from importation, wholly or in part — also after a 30-day transition. Subsection (g), the subject of the current request, requires the Commission to monitor such practices continuously and report to the president with recommendations (govinfo.gov).

The authority is no longer theoretical. On July 20, 2026, the president proclaimed a 50% additional duty on Canadian products listed in Annex II over unequal U.S. and EU retailer access to Canada's USMCA and CETA cheese tariff-rate quotas; the duty took effect on August 19 and was later temporarily suspended (whitehouse.gov). Then on September 8, 2026 — one day before the Commission's notice — the administration used the subsection (b) exclusion mechanism for the first time: certain Canadian products previously subject to that duty will be barred from importation entirely starting September 29, 2026 (whitehouse.gov).

What the Commission is asking

The notice sets out five topics for comment (govinfo.gov):

• what makes a foreign country's conduct "unreasonable" or "discriminatory";
• the specific methods by which countries burden U.S. commerce — fees, regulation, customs practices, preferences granted to third countries;
• how the Commission should gather information and what limits its disclosure, including risks to sources;
• how to analyze that information and whether reports to the president — historically kept confidential — should be made public;
• any other input on fulfilling the Commission's duties.

The provision traces back to Section 317 of the Tariff Act of 1922; past Commission inquiries covered practices such as inconsistent duty-calculation methods used by French customs officials and Australia's requirement to count inland carriage costs when assessing duties on U.S. products (govinfo.gov).

Who this affects

The notice matters most to importers and exporters dealing with markets where non-tariff barriers, disputed customs valuations, or preferences for third countries disadvantage U.S. trade — exactly the conduct the Commission is now trying to define systematically rather than case by case. Because Section 338 bypasses the lengthier procedures of Sections 301 and 232, with a duty of up to 50% or an outright import ban imposed by proclamation, businesses have a direct stake in the criteria the Commission adopts and in how transparently it works. Trade associations and companies that have already run into discriminatory customs practices abroad have reason to put their position on the record — particularly on complaint confidentiality and on whether reports to the president become public.

How and when to submit comments

Comments are due by November 9, 2026, 5:15 p.m. Eastern time through the EDIS system (edis.usitc.gov, docket MISC-053) or by email; the Commission's secretary is Lisa R. Barton (govinfo.gov). The proceeding is also listed on federalregister.gov.

Primary sources

• Request for Comments Regarding Implementation of 19 U.S.C. 1338(g), Inv. No. MISC-053 (Federal Register, govinfo)
• Federal Register: карточка документа 2026-18385
• 19 U.S. Code § 1338 - Discrimination by foreign countries (Cornell Law)
• Imposing Additional Duties to Offset Canadian Discrimination Against the Commerce of the United States With Respect to Dairy
• Excluding Certain Canadian Products From Importation Into the United States

This material is for information only and does not constitute legal advice or customs consulting. Verify changes against the primary sources before acting.