A request for information from the International Trade Commission could be an opportunity for the trade community to help shape potential future Section 338 tariffs.
Section 338 requires the ITC to “ascertain and at all times be informed of” any country practicing certain discriminatory actions that burden U.S. commerce, and to bring any such actions to the attention of the president and provide recommendations for action. This law has been on the books for nearly a century but only recently was used for the first time to impose tariffs, on imports from Canada following a presidential determination that Ottawa had engaged in discriminatory treatment of U.S. commerce with respect to automobiles, alcoholic beverages, and dairy products.
The ITC notes that it does not currently have an established practice for meeting its obligations as part of the Section 338 process and is therefore inviting comments by Nov. 9 on a number of related issues, including how it should obtain and analyze relevant information and the factors that may prevent members of the public from providing it.
In the context of potential future Section 338 proceedings, however, and the possible import tariffs that could be imposed as a result, it is important to note that the ITC is asking for input on what makes foreign conduct unreasonable or discriminatory in the context of international commerce.
The ITC also wants information on the specific methods and mechanisms by which such conduct burdens U.S. commerce, including with respect to the following.
- imposing, directly or indirectly, any unreasonable charge, exaction, regulation, or limitation on the disposition in, transportation in transit through, or reexportation from such country of any article wholly or in part the growth or product of the U.S., that is not equally enforced with respect to like articles of every foreign country
- discriminating, directly or indirectly, against U.S. commerce by law or administrative regulation or practice, by or in respect to any customs, tonnage, or port duty, fee, charge, exaction, classification, regulation, condition, restriction, or prohibition, in such manner as to place U.S. commerce at a disadvantage compared with the commerce of any foreign country
- discriminating or imposing unequal burdens on U.S. commerce as described above but with the beneficiary being the industry of a third country
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