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in conditions and terms of sale, taxation, levels of trade, quantities, physical characteristics, and any other differences which are also demonstrated to affect price comparability."76 In certain circumstances, however, a "constructed export price" is used to determine US price, and in that event "allowances for costs, including duties and taxes, incurred between importation and resale, and for profits accruing, should [...] be made" in addition to the allowances described above.77
As to the foreign price, the 1916 Act provides that it is "the actual market value or wholesale price of such articles, at the time of exportation to the United States, in the principal markets of the country of their production, or of other foreign countries to which they are commonly exported after adding to such market value or wholesale price, freight, duty, and other charges and expenses necessarily incident to the importation and sale thereof in the United States." This price is similar to, but nevertheless different from, the foreign price found in the Article VI definition of dumping, as further described in Article 2 of the Anti‑Dumping Agreement. This foreign price, or "normal value," the price in the exporting country that is "made at the same level of trade, normally at the ex-factory level, and in respect of sales made at as nearly as possible the same time" as the price used for the US price, with "[d]ue allowance [...] made [...], on its merits, for differences which affect price comparability, including differences in conditions and terms of sale, taxation, levels of trade, quantities, physical characteristics, and any other differences which are also demonstrated to affect price comparability."78 In certain circumstances, however, instead of the price in the exporting country, "normal value" is based on the price in "an appropriate third country, provided that this price is representative, or with the cost of production in the country of origin plus a reasonable amount for administrative, selling and general costs and for profits."79
The United States further argues that a review of the various substantive and procedural requirements of the 1916 Act confirms that they are the same as, or similar to, the requirements applicable under US anti‑trust statutes.80 In particular, a comparison of the 1916 Act with US anti‑trust statutes shows, either on the basis of the plain language of the statutes or as interpreted by the courts, as follows:
The 1916 Act requires a finding of price differences, like the Robinson‑Patman Act.81 The price differences under the 1916 Act, of course, must be "substantial" in amount and undertaken "commonly and systematically", while the Robinson‑Patman Act only requires two sales to different buyers at different prices.82
76 The United States refers to Article 2.4 of the Anti‑Dumping Agreement.
77 The United States refers to Articles 2.3 and 2.4 of the Anti‑Dumping Agreement.
78 The United States refers to Article 2.4 Anti‑Dumping Agreement.
79 The United States refers to Article 2.2 of the Anti‑Dumping Agreement.
80 In response to a question of Japan, the United States answers, however, that the 1916 Act is not among those laws regularly enforced by the Department of Justice and the Federal Trade Commission. Hence the United States sometimes uses the term "anti‑trust-type statute" when referring to the 1916 Act.
81 The United States refers to 15 U.S.C. 13(a).
82 The United States refers to International Telephone & Telegraph Corp. et al., 104 F.T.C. 280, p. 417, citing E. Kintner, , 3d ed. (1979), p. 35.