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imposition, on all imported merchandise sold by the exporter at a price less than the foreign home value and of a class or kind produced in the United States or competing with American products, of dumping-duties equal to the difference between the foreign home value and the export price."130 Representative Kitchin, who sponsored the 1916 Act, stated: "[i]n the act of 1916 […] we have as stringent and as drastic an anti‑dumping proposition as is contained in this bill."131
Japan further recalls that the Senate Finance Committee substituted another measure for the House provision. The Senate version provided that anti‑dumping duties should apply only after the Secretary of the Treasury found that a US industry was being or was likely to be injured or was prevented from being established by dumping.132 The measure was not voted on by the Senate. The Senate version, however, served as the model for legislation that later became the Antidumping Act of 1921.
Japan points out that the 1921 Act was a comprehensive administrative statute designed to address price discrimination between foreign and US markets that caused or threatened injury to a US industry. Unlike the 1916 Act, the 1921 Act did not include an intent requirement and relief took the form of the assessment of special anti‑dumping duties instead of treble damages in a private civil action or criminal prosecution.
Japan notes that, in 1975, when defendants in a US court proceeding argued that the 1916 Act should be struck down as an unconstitutionally vague criminal statute, a US court used the common understanding of the concept of dumping as one of the major reasons for rejecting the argument:
"[…] the phenomenon described by the terms of the [1916 Act] has a meaningful referent in business usage and practice. […] The practice itself long predated the passage of the Antidumping Act of 1916 […] which clearly implies that Congress knew whereof it wrote when it enacted the statute. The popular title of the Act itself is a further indication that the conduct described has a meaningful business referent. An economic regulatory statute could scarcely acquire the designation of an "anti‑dumping" act unless the business community to which the statute was addressed knew what "dumping" was."133
The United States submits that the 1916 Act was one of a series of anti‑trust-related statutes enacted by the US Congress between 1914 and 1916 in order to supplement the United States' then existing anti‑trust laws, principally the Sherman Act, which had been enacted in 1890 and represents the United States' first, and most basic anti‑trust law.134 In 1914, Congress enacted the Clayton Act135 and the Federal Trade Commission Act136. Two years later, Congress enacted the 1916 Act.
130 J. Viner, , University of Chicago Press (1979 ed.), p. 259.
131 59 Cong. Rec. 346.
132 Japan refers to Viner, Op. Cit., p. 259.
133 Zenith II, Op. Cit., pp. 258-59, aff’d, 723 F.2d 319, p. 326 (3d Cir. 1983) (citations omitted by Japan)
134 The United States refers to 26 Stat. 209 (1890) (codified at 15 U.S.C. §§ 1–7).
135 The United States refers to 38 Stat. 730 (1914) (codified at 15 U.S.C. §§ 12-27).
136 The United States refers to 38 Stat. 717 (1914) (codified at 15 U.S.C. §§ 41-58).