A Rare Opportunity to Shape a Newly Activated Trade Authority

The US International Trade Commission (the “Commission” or “ITC”) has opened a public comment period seeking input on how it should carry out its data collection and reporting obligations under Section 338 of the Tariff Act of 1930.¹  The Trump Administration recently relied on this long-dormant section of the Tariff Act to impose trade restrictions on certain imports from Canada. 

This comment period presents a unique opportunity to influence how the Commission should interpret and comply with a statutory responsibility from the ground up.  Parties that participate in this process can inform what foreign conduct is considered to fall within the statute’s reach, how the Commission evaluates allegations and what the Commission ultimately reports to the President.

Companies facing discriminatory practices in foreign markets or that are concerned about the imposition of additional tariffs on US imports, or are just interested in the revival of this provision and want to encourage more transparency in its use, should take this opportunity to engage with the Commission by submitting comments no later than November 9, 2026.² 

WilmerHale is well positioned to assist you in this process.  Please contact Rhonda Schmidtlein, former ITC Chair and Commissioner, or Elizabeth Argenti for more information.

Background:  Section 338 Invoked for the First Time Against Canada

Section 338 empowers the president to impose duties on imports from a foreign country to offset any burden or disadvantage arising from that country’s discrimination against, or unequal imposition on, the commerce of the United States.³  Section 338 also empowers the President to exclude imports into the United States from a foreign country that continues to discriminate against the United States after the imposition of additional duties that are designed to address such discrimination or unfair treatment.

This provision had been dormant for decades until July of this year.⁴  On July 20, 2026, the President invoked Section 338 to impose additional ad valorem duties on certain imports from Canada.  The additional duties were in response to Canada’s alleged discriminatory treatment affecting US alcoholic beverages,⁵ dairy⁶  and motor vehicles.⁷  The duties were originally scheduled to take effect on August 19, 2026, but were delayed for a period of three days to allow for additional negotiations.⁸  Following the collapse of those negotiations, the additional duties of 50 percent ad valorem entered into force on August 22, 2026.  Not long thereafter, the Trump Administration concluded that Canada had continued or escalated the discriminatory measures after the initial tariffs were imposed.  As a result, on September 8, 2026, the President invoked the additional power under Section 338 to exclude imports by issuing proclamations that ban the importation of certain products from Canada starting on September 29, 2026.⁹ 

Section 338 Includes Obligations for the International Trade Commission

In addition to granting the President the authorities described above, Section 338 imposes an affirmative duty on the ITC.  Under Section 338(g), the Commission must “ascertain and at all times be informed” of foreign practices that discriminate against or unreasonably burden US commerce.  The statute further states that “if and when such discriminatory acts are disclosed,” the Commission is required to bring the identified conduct to the President’s attention along with recommendations.¹⁰ 

The Commission’s notice explains that it previously fulfilled these obligations and was actively engaged in implementing this statute as well as its predecessor, Section 317 of the Tariff Act of 1922.  Under Section 317, the Commission established common rules of procedure, permitted substantial public participation, initiated investigations on its own motion or on private petition, and circulated questionnaires to US consular officials and exporting firms.¹¹  The Commission notes that after the passage of the Tariff Act of 1930, its procedures for Section 338 became more informal and less public.  Once the most-favored-nation obligation was established under Article I of the GATT (1947), policymakers began to question whether Section 338 had become a “dead letter” and the Commission’s reporting practice ultimately lapsed.¹²

The Commission acknowledges that it currently has no established practice for identifying discriminatory foreign conduct, gathering information from the public or other sources, or transmitting findings and recommendations to the President, and with Section 338 now in use, it is considering whether to resume reporting and what that reporting should entail.¹³

What the Commission Is Seeking

The notice solicits comment on five topics:

1. Statutory meaning. What makes foreign government conduct “unreasonable” or “discriminatory” in the context of international commerce, and how should the Commission construe those terms for the purposes of Section 338?
2. Mechanisms by which foreign countries burden US commerce.  The Commission is seeking information regarding the methods by which foreign countries burden US commerce via:
   • unreasonable charges, exactions, regulations or limitations on the disposition, transit or re-exportation of US-origin articles that are not equally enforced with respect to like articles of every foreign country;
   • discrimination by law, regulation or administrative practice through customs, tonnage or port duties, fees, classifications, conditions, restrictions or prohibitions that disadvantage US commerce relative to the commerce of other countries; and
   • discrimination or unequal burdens of the types described above where the beneficiary is the industry of a third country.
3. How the Commission should obtain relevant information, including appropriate processes; the sensitivity of the relevant information and whether existing confidential business information and privacy protections offer sufficient protection; factors that would deter members of the public from coming forward—expressly including the risk that public disclosure could prompt direct or indirect reprisal from a foreign government—and steps to mitigate those risks.
4. How the Commission should analyze information and relay it to the President, including whether to investigate and report on specific allegations or rely on aggregated information; whether Section 338 information may be repurposed for other uses (such as Section 332 reports) or whether this should require the submitter’s permission; what factors the Commission should consider when developing recommendations; whether reports to the President should remain non-public as they were historically; and whether the Commission should resume providing some public information about its Section 338(g) work and if so what would be useful to disclose.
5. Any additional information the Commission should know to best fulfill its Section 338(g) obligations.

Who Should Consider Commenting

US producers who export and their trade associations 

Any company whose foreign sales are constrained by discriminatory customs treatment, non-uniform duty assessment or classification, port or tonnage charges, transit or re-export restrictions, licensing conditions, tariff-rate quota allocation practices, or state-controlled distribution and procurement systems.

US importers, distributors, and downstream purchasers

Parties whose supply chains would bear the cost of responsive duties have an interest in how the Commission scopes “unreasonable” and “discriminatory” conduct and how rigorously it tests allegations.

Foreign producers and exporters to the United States, and their governments

Companies in jurisdictions whose measures could be characterized as discriminatory face potential exposure and therefore have an interest in the definitional and evidentiary questions the notice raises.

Any party with exposure to foreign retaliation

The Commission has expressly invited comment on reprisal risk and on safeguards for sensitive information.  Parties who would want to identify foreign measures without exposing themselves in those markets should weigh in.

WilmerHale’s International Trade Practice

WilmerHale’s International Trade group has been at the forefront of advising clients on the rapidly evolving landscape of US tariff measures, including actions under Sections 232, 301, 338, and IEEPA.  Drawing on decades of experience in trade policy, customs, trade remedies, and international litigation, our team helps companies assess the impact of new tariffs, develop mitigation strategies, navigate supply chain and customs challenges, participate in government proceedings, and evaluate litigation and advocacy options.  We work closely with clients across industries to provide practical, strategic guidance tailored to their commercial objectives in an increasingly complex trade environment.  If you have any questions regarding this alert, tariffs, or other trade issues, please reach out to Rhonda Schmidtlein or Elizabeth Argenti.