SUPPLEMENTARY INFORMATION:

I. Background

Pursuant to section 338(g) of the Tariff Act of 1930 (19 U.S.C. 1338(g)) the Commission is statutorily required to “ascertain and at all times be informed” of any country practicing certain discriminatory actions that burden the commerce of the United States, and when such actions are identified to bring them to the attention of the President and provide recommendations. The Commission's role in providing the President with information and recommendations is mandatory pursuant to the statute.

A review of the history of the Commission's work under Section 338 and its predecessor Section 317 of the Tariff Act of 1922 ^[i] demonstrates that the Commission previously played a robust and active role implementing these statutes.

Early in its history, the Commission established common rules of procedure for Section 317 investigations, and allowed significant public participation in these investigations.^[ii] With the passage of the Tariff Act of 1930, the Commission's procedures for Section 338 activities became more informal and less public, but continued nonetheless.^[iii] Across the years, the Commission's Section 317 and Section 338 work led it to identify a range of discriminatory trade actions, ranging from inconsistent duty calculation methods by French customs officials to Australia's requirement that U.S. ( printed page 57388) products include their “inland carriage” in duty assessments. The Commission routinely reported on its Section 317 and Section 338 activities in its annual reports into the 1940s. Following World War II, the establishment of the most-favored-nation obligation—Article I of the {multilateral} General Agreement on Tariffs and Trade of 1947—led some policymakers to question whether Section 338 was a “dead letter,” but Congress retained Section 338 in law even when creating new tariff authorities.^[iv]

The Commission does not currently have an established practice for identifying applicable discriminatory actions, collecting information relevant to those allegedly discriminatory actions from the public or other sources, or providing the President with the information it collects and its subsequent recommendations. Therefore, the Commission is considering whether establishing a practice will help it better fulfill its statutory obligations. The Commission's statutory mandate under Section 338 is to determine the facts and to provide recommendations. Thoroughness, impartiality, and nonpartisanship are essential to carrying out this work, and the Commission is committed to these principles.

The Commission is requesting comments on the types of activities of foreign countries that interested persons believe fall within the scope of section 338(a), (b), and/or (e) of the Tariff Act of 1930, including how those activities burden commerce in the United States. The Commission is also seeking comments on how the Commission should ascertain and at all times be informed on activities of a foreign country that would satisfy Section 338(a), (b), and/or (e) of the Tariff Act of 1930, including obtaining information from interested persons regarding foreign discriminatory conduct, and what barriers or impediments may prevent members of the public from providing relevant information to the Commission. Finally, the Commission is seeking information on what form(s) its communications to the President pursuant to Section 338(g) should take to communicate its findings and recommendations. The information received under this request for comments will inform how the Commission moves forward with its section 338(g) responsibilities.

II. Topics on Which USITC Seeks Information

The Commission invites comments from interested persons providing information on any or all of the following topics:

1. Section 338 (19 U.S.C. 1338) addresses “unreasonable” and “discriminatory” conduct by foreign governments. What makes conduct “unreasonable” or “discriminatory” in the context of international commerce? How should the Commission understand those terms for the purposes of Section 338?

2. Information regarding the specific methods and mechanisms by which foreign countries burden United States commerce via:

a. Imposing, directly or indirectly, any unreasonable charge, exaction, regulation, or limitation on the disposition in, or transportation in transit through, or re-exportation from such country of any article wholly or in part the growth or product of the United States, that is not equally enforced with respect to like articles of every foreign country;

b. Discriminating, directly or indirectly, against the commerce of the United States 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 the commerce of the United States at a disadvantage compared with the commerce of any foreign country; or

c. Discriminating or imposing unequal burdens on the commerce of the United States as described above but with the beneficiary being the industry of a third county.

3. How the Commission should obtain relevant information, including:

a. Processes the Commission should use to obtain information;

b. The degree of sensitivity for the relevant information, and whether safeguards for confidential business information or privacy laws are sufficient protection for this information;

c. Factors that would discourage members of the public with relevant information from sharing it with the Commission, including, for example, the risk of public disclosure that a party provided the Commission with information might prompt direct or indirect reprisal from a foreign government.

d. Steps the Commission should take to mitigate risks that would discourage members of the public with relevant information from sharing it with the Commission.

4. How the Commission should analyze information provided by the public, and how the Commission should convey information and recommendations to the President, including:

a. Should the Commission investigate and report on specific allegations or just use aggregated information;

b. Should the Commission's policy be to use information relating to Section 338 issues for other purposes (such as Section 332 reports), or should the provider of the information have to grant permission for additional uses;

c. When crafting recommendations for the President, what factors should the Commission consider when identifying appropriate options;

d. Historically the Commission did not make the reports it provided to the President public, should the Commission continue this practice?

e. Historically, the Commission would also provide some information about its work under 338(g) to the public. Should the Commission continue this practice? If so, what sort of information would be useful to the public?

5. Is there any additional information the Commission should know to help it best fulfill its obligations under Section 338(g)?

III. Submission Instructions

Written submissions: Interested persons are invited to file written submissions and other information concerning the matters to be addressed in this request. All written submissions should be addressed to the Secretary, and should be received no later than 5:15 p.m., November 9, 2026. All written submissions must conform to the provisions of section 201.8 of the Commission's Rules of Practice and Procedure (19 CFR 201.8). Filings must be made through the Commission's Electronic Document Information System (EDIS, edis.usitc.gov) or via email. Persons with questions regarding electronic filing should contact the Office of the Secretary, Docket Services Division (202-205-1802), email EDIS3help@usitc.gov, or consult the Commission's Handbook on Filing Procedures. ( printed page 57389)

Confidential business information: Any submissions that contain confidential business information (CBI) must also conform with the requirements in section 201.6 of the Commission's Rules of Practice and Procedure (19 CFR 201.6). Section 201.6 of the rules requires that the cover of the document and the individual pages be clearly marked as to whether they are the “confidential” or “nonconfidential” version, and that the CBI is clearly identified by means of brackets. All written submissions, except for CBI, will be made available for inspection by interested persons.

All information, including CBI, submitted may be disclosed to and used: (i) by the Commission, its employees and Offices, and contract personnel (a) for developing or maintaining the records of this or a related proceeding, or (b) in internal investigations, audits, reviews, and evaluations relating to the programs, personnel, and operations of the Commission including under 5 U.S.C. Appendix 3; or (ii) by U.S. government employees and contract personnel for cybersecurity or other security purposes. The Commission will not otherwise disclose any CBI in a manner that would reveal the operations of the firm supplying the information.

91 FR 57387