On September 9, 2026, the U.S. International Trade Commission published a request for public comments on how it should implement 19 U.S.C. 1338(g) — the standing duty to stay informed about foreign discrimination against U.S. commerce and to report it to the President. Nothing about your entries changed today: no duty, no rate, no Chapter 99 heading, no filing requirement. What did change is that there is now a docket, MISC-053, where a company actually being burdened by a foreign customs charge or a discriminatory foreign practice can put that on the record, and written comments are due by 5:15 p.m. on November 9, 2026.
That is a narrow but real opportunity, and it closes in two months. This piece explains what the Commission asked, who has standing to be useful in it, and what it does not mean.
What the ITC actually published
The notice is a request for comments, docket number MISC-053, at Federal Register document 2026-18385, published September 9, 2026. The Commission signed it out September 4 and it was filed for publication on September 8.
Section 338(g) of the Tariff Act of 1930 requires the Commission "to ascertain and at all times to be informed" of the discriminations described in subsections (a), (b), and (e) of that section, and, when it finds one, "to bring the matter to the attention of the President, together with recommendations." That obligation has been on the books, in one form or another, since Section 317 of the Tariff Act of 1922.
The Commission's own framing in this notice is that it does not presently have established practices for doing that work — no settled procedure for identifying qualifying conduct, no settled process for gathering information about it, and no settled approach to communicating findings to the President. So it is asking the public how to build one.
The notice recounts a fair amount of its own history: early investigations under Section 317 examined things like inconsistent French duty calculations and Australia's treatment of "inland carriage" in duty assessments, and the Commission reported on Section 317 and Section 338 activity in its annual reports through the 1940s. After the 1947 General Agreement on Tariffs and Trade brought most-favored-nation obligations, some policymakers asked whether Section 338 had become "a dead letter." Congress kept it anyway, including through the Trade Act of 1974.
Nothing about your entries changed on September 9
Say this part plainly, because it is the part that gets overstated. A request for comments is procedural. It creates no duty, changes no rate, adds no Chapter 99 reporting line, imposes no new data element on a 7501, and moves no deadline that costs an importer money. If you file entries for a living, nothing in this notice requires you to do anything differently on Monday.
The notice also names no countries and no products. It does not identify a target, it does not preview an investigation, and it does not say what the Commission or the President will do with whatever comes in. Anyone telling you this notice signals a specific next tariff is reading something into it that is not on the page.
What it does do is build the intake pipe. That is worth paying attention to, but it is worth paying attention to for what it is.
Why the machinery matters even though the notice is procedural
Section 338 is not a dormant statute in 2026. Under 19 U.S.C. 1338(a), the President may proclaim new or additional duties, capped at 50 percent ad valorem or its equivalent, on the products of a country that either imposes unreasonable charges, exactions, regulations, or limitations on U.S. articles without applying them equally to other nations, or discriminates against U.S. commerce through customs duties, tonnage dues, port charges, classifications, restrictions, or prohibitions. Subsection (b) goes further: if the discrimination is maintained or increased after an (a) proclamation, the President may direct that the country's products be excluded from importation entirely. Subsection (e) covers the case where the burden on U.S. commerce benefits a third country's industry, again with a 50 percent cap.
That authority has been exercised. Proclamation 11056, published August 24, 2026 at 91 FR 54789, set the effective date for the additional Section 338 duties imposed by Proclamations 11046, 11047, and 11048 at 12:01 a.m. eastern time on August 22, 2026, expressly citing section 338 of the Tariff Act of 1930. We covered the entry-summary mechanics of that action when it landed, in Section 338 on Canadian goods is live.
And the subsection (b) exclusion power described above is no longer hypothetical either. On September 8, 2026 — the day before this notice published — the President signed five more Section 338 proclamations: three excluding certain Canadian alcoholic beverages, dairy, and motor vehicle products from importation effective 12:01 a.m. eastern time on September 29, 2026, and two modifying which products carry the 50 percent duty effective September 15. We covered those dates and the in-transit rule in Canada: a 50 percent duty becomes an import ban on September 29. So within about seven weeks, Section 338 went from duties, to a maintained-discrimination finding, to an outright import prohibition.
Hold those two facts side by side without collapsing them. The ITC notice is the monitoring half of a statute whose duty half is already in use. The notice itself makes no reference to that action, names no country, and should not be read as being about it. But an importer who has been told for years that Section 338 was a museum piece now has a run of data points suggesting otherwise, and the most recent one comes with a comment window.
The five things the Commission is asking about
The notice invites comment on any or all of the following.
Definitions. What counts as "unreasonable" or "discriminatory" conduct in international commerce, and how should the Commission interpret those terms under Section 338? These are the operative statutory words, and they are not defined anywhere with precision. This is the question where a well-argued comment can genuinely shape scope.
The methods themselves. The Commission wants specifics on how foreign countries actually burden U.S. commerce: unreasonable charges, exactions, regulations, or limitations on the disposition, transportation in transit, or re-exportation of U.S.-origin goods when not applied equally to like articles from every other country; discrimination through customs duties, tonnage dues, port charges, exactions, classifications, regulations, conditions, restrictions, or prohibitions that disadvantage U.S. commerce relative to another country's; and burdens that fall unequally on U.S. commerce while benefiting a third country's industry.
How it should gather information. What processes should it use? Are the existing confidential business information and privacy protections sufficient given the sensitivity of what companies would be handing over? What discourages parties from submitting at all — the notice specifically raises the risk of foreign government retaliation — and what should the Commission do to encourage voluntary disclosure while mitigating that risk?
How it should analyze and report. Should the Commission investigate specific allegations or aggregate what it receives? Should it be permitted to use Section 338 information for other purposes, such as Section 332 reports, or should that require the submitter's permission? What factors should shape the options it recommends to the President? Historically its reports to the President have stayed confidential — should that continue? And should it keep providing public information about its Section 338 work, and if so, what?
Anything else. The notice closes with an open invitation for whatever else would help it meet the obligation.
Who actually has something useful to say here
Read the second question closely and the audience becomes clear. The conduct Section 338 reaches is conduct by a foreign government against U.S. commerce — the charges, classifications, port fees, licensing conditions, and quota mechanics that a foreign customs administration applies to your goods on the way in. That means the company with the most to contribute is often a U.S. exporter, not a U.S. importer.
Concretely, you probably have something on the record worth filing if:
- A foreign customs authority assesses duty on your goods on a basis that inflates the value — including freight or inland carriage other countries' shipments do not carry, for example.
- Your product gets classified into a higher-duty heading in one market and a normal one everywhere else, and you have the rulings or entry documents to show it.
- You face port charges, tonnage dues, inspection fees, or licensing conditions that competitors from a third country do not.
- A tariff-rate quota is allocated in a way that structurally shuts out U.S.-origin goods while leaving room for another supplier country.
- Goods moving in transit or being re-exported through a country pick up charges or limitations that goods of other origins do not.
Importers are not out of scope. If you import through a foreign affiliate, run re-export or in-transit flows, or sit on the U.S. end of a supply chain where the foreign-market burden is the reason your landed cost is what it is, the facts are in your records even if the burden lands on a sister entity abroad. And if you are already carrying Section 338 duty on entries today, understanding the statute that generated it is not optional — our tariff stacking guide covers how a Section 338 line sits alongside the other Chapter 99 remedies on the same entry summary.
What is not useful is a comment that says tariffs are bad, or that a country is unfair in general. The Commission asked for methods and mechanisms. Specificity is the whole value of a filing like this.
The confidentiality question is the one to think hardest about
For most companies, the reason not to file is obvious: the burden you would describe is being applied by a government you still have to sell into, and your name on a public docket is a business risk. The Commission clearly knows this — it asked directly what discourages participation, including retaliation risk, and what it should do about that.
The existing rules are what they are today. Submissions containing confidential business information must comply with 19 CFR 201.6: mark the cover page and each individual page as confidential or nonconfidential, and bracket the CBI itself. Filings generally must conform to 19 CFR 201.8. Non-confidential submissions are available for public inspection. The notice also states that the Commission may disclose all information, including CBI, to Commission employees, offices, and contractors for record development, internal investigations, audits, reviews, evaluations, or security purposes, and to U.S. government employees and contractors for cybersecurity or security purposes — and that it will not otherwise disclose CBI in a way that reveals a firm's operations.
There is a second-order point here that is easy to miss. Because the Commission is asking whether those protections are sufficient, a comment that says "here is exactly why my company will not file the underlying facts under the current rules" is itself responsive and useful. You do not have to disclose the burden to say something worth saying about the process.
If confidentiality is the deciding factor for you, get counsel on the CBI mechanics before you draft. That is a legal call about your exposure, not a customs-entry call.
How to file by November 9
Written comments are due by 5:15 p.m. on November 9, 2026. The notice states the time without a time zone in the text; the Commission sits in Washington, DC, so plan on eastern time and do not file in the last hour.
There are three routes:
- Electronically through EDIS, the Commission's Electronic Document Information System, at edis.usitc.gov, under docket number MISC-053.
- By email, to
Secretary@usitc.gov, with MISC-053 in the subject line. (For trouble accessing EDIS itself, the notice gives a separate address,EDIS3Help@usitc.gov.) - On paper, to the Secretary, U.S. International Trade Commission, 500 E Street SW, Room 112, Washington, DC 20436.
Include the docket number either way. The notice names Lisa R. Barton, Secretary, at 202-205-2595, and Margaret Macdonald, General Counsel, at 202-205-2561, as contacts.
A practical sequence, if you think you have something: pull the actual documents first — the foreign entry summaries, the classification decisions, the fee schedules, the quota allocation notices — before you write a word of narrative. Decide next what is genuinely confidential and what is not, because that determines how you mark the filing. Then write to the Commission's five questions rather than around them. Two months is enough time to do that carefully and not enough to do it in the last week of October.
No. It is a request for public comments on how the Commission will implement a monitoring statute. As of September 9, 2026, it imposes no duty, changes no rate, adds no Chapter 99 reporting requirement, and moves no filing deadline. Your entry process is unaffected.
Does the notice target a specific country or product?
No. The notice names no country and no product, and it does not reference any existing Section 338 proclamation. It asks how the Commission should define the statutory terms and gather information generally. We are not going to guess at a target, and neither should anyone else reading it.
Section 338 duties are already in effect on some goods — how does that square with the ITC only now asking how to monitor?
They are two halves of one statute operating on different clocks. Subsections (a), (b), and (e) give the President the proclamation authority, and that authority has been used — Proclamation 11056 set an effective date of 12:01 a.m. eastern time on August 22, 2026 for the duties in Proclamations 11046, 11047, and 11048. Subsection (g) is the Commission's standing duty to stay informed and recommend. The notice is about building process for (g), and it does not comment on any proclamation.
If I file a comment, does that affect my duties or get me a refund?
No. This docket is at the ITC, not CBP, and it has nothing to do with what you owe or what you might recover on an entry. Duty relief runs through entirely separate mechanisms — post summary correction, protest, refund programs — on their own deadlines. Do not treat a comment filing as a substitute for any of those. Nobody can tell you how the Commission or the President will act on what gets filed, and we will not.
Where we can help
A comment to the ITC is a policy filing, not a customs filing, and much of the work is legal drafting. Where we are useful is the layer underneath it — the entry-level facts.
We can consult on whether the burden you are seeing is a customs mechanism worth documenting, and on how to pull the classification, valuation, and fee evidence out of your own records in a form a docket submission can use. We can comply on the U.S. side of the same supply chain, so the Section 338, Section 301, and Section 232 lines you already owe are reported correctly while this plays out — see compliance consulting for how that engagement works. We can clear the entries themselves, and automate the recurring filing so your team's attention goes to the exposure that actually needs a human.
If you think you have facts that belong in MISC-053 and want a second set of eyes on the customs mechanics before November 9, talk to our team.
Sources, all opened September 9, 2026: Federal Register, "Request for Comments Regarding Implementation of 19 U.S.C. 1338(g)," U.S. International Trade Commission, FR Doc. 2026-18385, published September 9, 2026 (docket MISC-053); 19 U.S.C. 1338, Office of the Law Revision Counsel, U.S. Code; Proclamation 11056, "Temporary Suspension of Additional Duties To Offset Canadian Discrimination Against the Commerce of the United States With Respect to Alcoholic Beverages, Dairy, and Motor Vehicles," 91 FR 54789 (August 24, 2026).