[Federal Register Volume 91, Number 173 (Wednesday, September 9, 2026)]
[Notices]
[Pages 57387-57389]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2026-18385]
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INTERNATIONAL TRADE COMMISSION
Request for Comments Regarding Implementation of 19 U.S.C.
1338(g)
AGENCY: The United States International Trade Commission
ACTION: Request for comments regarding implementation of 19 U.S.C.
1338(g) in investigation No. MISC-053.
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SUMMARY: Pursuant to section 338(g) of the Tariff Act of 1930, the
United States International Trade Commission (Commission) has a duty to
ascertain and at all times to be informed of discriminations against
the commerce of the United States pursuant to section 338(a), (b), and
(e) and to provide the President with this information as well as
recommendations. In furtherance of this duty, and as described in
further detail below, the Commission invites comments from interested
persons regarding how the Commission can best meet its statutory
obligations under Section 338(g).
DATES: To ensure consideration, written comments must be submitted on
or before November 9, 2026.
ADDRESSES: Lisa R. Barton, Secretary to the Commission, U.S.
International Trade Commission, 500 E Street SW, Washington, DC 20436,
telephone 202-205-2595. General information concerning the Commission
may be obtained by accessing its internet server at https://www.usitc.gov. Hearing-impaired persons are advised that information
can be obtained by contacting the Commission's TDD terminal on (202)
205-1810.
Notwithstanding Commission Rule 201.8(d), 19 CFR 201.8(d), you may
submit comments, identified by docket number MISC-053, by any of the
following methods:
--Agency Website: https://www.usitc.gov. You may submit comments on the
Commission's electronic docket (EDIS) at https://edis.usitc.gov. For
help accessing EDIS, please email [email protected].
--Email: Submit comments via to [email protected]. Include docket
number MISC-053 in the subject line of the message.
Instructions: All submissions received must include the agency name
and docket number (MISC-053, along with written comments addressing the
topics on which the USITC seeks information. All comments received will
be posted without change to https://www.usitc.gov, including any
personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to https://www.usitc.gov and/or the U.S.
International Trade Commission, 500 E Street SW, Room 112, Washington,
DC 20436.
FOR FURTHER INFORMATION CONTACT: Margaret Macdonald, General Counsel,
Office of OGC (202-205-2561, or [email protected]) . The
media should contact Jennifer Andberg, Office of External Relations
((202) 205-3404, or [email protected]). Hearing-impaired
individuals may obtain information on this matter by contacting the
Commission's TDD terminal at 202-205-1810. General information about
the Commission is available by accessing the Commission website at
www.usitc.gov. Persons with mobility impairments who will need special
assistance in gaining access to the Commission should contact the
Office of the Secretary at (202) 205-2000.
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.
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\i\ Section 338(g) originated at Section 317 of the Tariff Act
of 1922 and was reenacted with minor changes as section 338(g) of
the Tarriff Act of 1930.
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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.
[[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{time} 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\
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\ii\ The Commission structured its Section 317 activities as
formal investigations into ``discriminations'' by individual foreign
countries against U.S. commerce broadly, or against specific U.S.
exports, and would initiate investigations on its own initiative, at
the request of the president, or based on petitions filed by private
parties. The Commission would also routinely send out questionnaires
to U.S. consular officials and U.S. exporting firms to support its
research and information gathering in this work. U.S. Tariff
Commission, Seventh Annual Report of the U.S. Tariff Commission
(1923), Appendix III at 54-55: https://www.usitc.gov/publications/year_in_review/fy_1923_annual_report.pdf.
\iii\ In the decade following the Act's passage, most of the
Commission's work was made up of communications with the U.S. State
Department, which would gather complaints, data, and information,
upon which the Commission would determine its advice. Complaints
were also initiated by State Department officials who sought advice
from the Commission as to whether foreign acts violated Section 338.
The Commission determined it was necessary to have less public
engagement in this work given the sensitive nature of
investigations.
\iv\ Indeed, in creating Section 301 of the Trade Act of 1974, a
report by staff of the Senate Finance committee proposed that
existing trade laws, including Section 338, should be amended or
repealed rather than ``left as dead letters on the statute books.''
Staff of S. Comm. on Finance, 92d Cong., A Survey of Issues to be
Studied by the Subcommittee on International Trade 14 (Comm. Print
1971). Officials from the Treasury Department countered that Section
338 was a ``useful authority against foreign countries which
discriminate'' against the commerce of the United States and
requested that the bill ``not repeal section 338.'' Trade Reform Act
of 1973: Hearing Before the H. Comm. on Ways and Means, 93rd Cong.
2144-2241 (1973) (statement from Office of Secretary of the
Treasury). The Trade Act of 1974 did not alter or repeal Section
338.
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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, https://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 [email protected], or consult the Commission's Handbook
on Filing Procedures.
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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.
By order of the Commission.
Issued: September 4, 2026.
Sharon Bellamy,
Supervisory Hearings and Information Officer.
[FR Doc. 2026-18385 Filed 9-8-26; 8:45 am]
BILLING CODE 7020-02-P