dissenting in part, with whom Markey, Chief Judge, joins.
I agree with the court that the equally divided vote of the four voting members of the Tariff Commission constituted a valid affirmative determination of injury under section 160(a). I disagree, however, with the court’s reversal of the Custom Court’s ruling that there was no valid purchase price for purposes of section 162 and therefore also would affirm the Custom Court judgment in Voss II.
Section 162 defines the purchase price of imported merchandise, for the purpose of determining dumping duties, as “the price at which such merchandise has been * * * agreed to be purchased, prior to the time of exportation, by the person by whom or for whose account the merchandise is imported * * * .” The court accepts the Customs Court’s ruling that under this provision Voss was the importer and Marubeni Japan was the seller. Although the January 22, 1971 agreement between those companies established dollar prices for the imported merchandise, it further stated that the prices were based upon the then existing exchange rate between the dollar and the yen, and that if either currency were devalued and/or revalued, “the price shall be renegotiated among” the parties.
On September 7, 1971, Voss and Marubeni America made a supplemental agreement providing that Voss would bear any exchange loss due to yen fluctuation and that Voss would pay Marubeni America the differential “at the exchange rate * * * immediately after (Voss) receives the invoice” for the goods. Voss received the shipping documents covering the merchandise on February 18, 1972, 5 days after the goods had been exported. Since under the September 7, 1971 agreement Voss could not ascertain the price it would have to pay until February 18, 1972, the purchase price was not finally determined until the latter date. The price thus determined on February 18, 1972, was not “the price at which such merchandise * * * (was) agreed to be purchased, prior to the time of exportation,” as section 162 requires.
The Customs Court correctly explained why section 162 contains this requirement. As that court stated:
* * * the Antidumping Act envisions that a definite and determinable purchase price (whether actual or agreed) must exist prior to the date of exportation for comparison with the foreign market value — this in order to determine the margin of dumping.
The court’s reasoning in concluding that this requirement of section 162 was here satisfied is as follows:
Prior to exportation the parties had agreed upon a price in dollars based upon an exchange rate of 360 yen to the dollar, *108with the buyer to bear the risk of exchange loss due to yen fluctuation. Accordingly, “Voss agreed to pay a sufficient amount of dollars to yield an agreed-upon amount of yen.” Thus, “the price paid by Voss, by virtue of the agreements in the record before us, was a definite and determinable price in yen agreed to prior to the time of exportation * *
As the court recognizes, however, the contract price was in dollars not in yen. As long as the number of yen the seller would receive, i.e., the price, would vary with any changes in the value of the yen in relation to the dollar, the purchase price was not set. Although the court states that there was “a definite and determinable price in yen irrevocably agreed to prior to the time of exportation,” that statement is in error. If the value of the yen had decreased in relation to the dollar, Voss would have paid the dollar amounts specified in the contract, the agreement having specified that the purchaser, not the seller, bear losses due to yen fluctuation. If Voss paid in yen, a greater yen amount would have been required than that which would have been required at the time of the contract. Hence the price was not fixed in yen prior to exportation.
If the value of the yen had increased in relation to the dollar, Voss would have paid a greater dollar amount than that specified in the contract. If Voss paid in yen, the yen amount would have been that payable at the time of the contract. Solely because the value of the yen did in fact increase, the majority applies that later development to the contract to find a price fixed therein in yen. The agreement, however, required payment in dollars, and the amount of that payment was not determinable until after exportation, i.e., the day the shipping documents were negotiated. Because under the agreement Voss was to bear only losses due to yen fluctuation, it would pay a larger dollar amount, if the fluctuation went in one direction. It would pay the contract dollar amount if the fluctuation went in the opposite direction. In the former instance the dollar payment would be the equivalent of the same yen amount the seller would have received at the time of the contract. In the latter the dollar payment would have been the equivalent of a greater yen amount than the seller would have received at the time of the contract. The parties having specifically conditioned the price upon information unknown until after the time of exportation, there was no fixed price, in either yen or dollars, as required by section 162.
For these reasons I conclude that the Customs Court correctly held that the purchase price here had not been agreed upon prior to exportation and that section 162 therefore was not satisfied.