FTC Post-Conference Brief In the Matter of Certain Softwood Lumber Products From Canada Concerning Subsidy Levels

us-ftc-advocacy-filings-da983e120450676dbf0bf073590e5bf2FTC Post-Conference Brief In the Matter of Certain Softwood Lumber Products From Canada Concerning Subsidy LevelsAdvocacy Filing

I n 	th e Ma t te r 	0 f :
CERTA IN 	SOFT\\OOO LUMBER
PRODUCTS 	FRCld CANAM,
No. 	70l-TA-274 	(Preliminary)
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BEFORE 	THE 	UN I TED STATES
INTERNATIONAL TRADE 	COM\fISS ION
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POST-CONFERENCE 	BRIEF 	OF THE
FEDERAL 	TRADE 	COMMISSION
June 	12,1986
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TABLE 	OF 	CONTENTS
PAGE
INTRODUCTION AND 	SUMMARY 	l
ARGUMENT ••••••••••••••••••••••••••••••••••••••••.••••...• 3
I. 	A Major 	Purpose 	of 	the 	Countervailing 	Duty
Law Under 	the 	Trade 	Agreements 	Act 	of. 1979.
Is 	To 	Promote 	Free 	Trade 	to 	the 	Benefit
of 	United 	States 	Consumers 	and 	Businesses .•........ 3
II. 	The 	ITC 	Should 	Determine 	Whether 	the 	Alleged
Foreign 	Subsidy 	Actually 	Caused 	Any Material
Injury 	that 	May 	Be 	Found 	To 	Exist •....•...•........ 9
A. 	The 	1979 Act 	Is 	Consistent 	with 	the
Countervailing 	Duty 	Agreement's
Requirement 	To 	Consider 	the 	Effect
of 	the 	Alleged 	Subsidy ••••••••...••.•..•.•.... 9
B. 	The 	Legislative 	History of 	the 	1979 	Act
Indicates 	that 	the 	ITC 	Should 	Examine 	the
Effects 	of 	the 	Alleged 	Subsidy 	14
III. 	The 	Absence 	of 	an 	Auction 	for 	Stumpage 	Rights
Is 	Likely 	To 	Have 	No 	Effect 	on 	the 	Price 	or
Quantity 	of 	Canadian 	Exports 	of 	Softwood
Lumber 	Products 	to 	the 	United 	States 	17
A. 	Only 	Increased 	Imports 	Will 	Injure 	an
Industry 	in 	the 	United 	States ....••.......••. 18
B. 	The 	Stumpage 	Fee 	Does 	Not
Increase 	Canadian 	Production 	19
C. 	The 	Effect 	of 	the 	Low 	Stumpage 	Fee 	Is
Merely 	To 	Increase 	the 	Profits 	of
Canadian 	Loggers 	24
D. 	The 	High 	Profits 	Earned 	by 	Canadian
Loggers 	Do 	Not 	Have 	the 	Same 	Injurious
Effects 	as 	the 	Grant 	of 	a 	Subsidy 	27
E. 	Conclusion: 	Canadian 	Stumpage 	Fee
Systems 	Do 	Not 	Injure 	the· United 	States
Lumber 	Industry 	30
CONCLUS ION 	.•••••••••••••••.••..•.••..••••••.•••.••..••• 33
APPENDIX: 	Prehearing 	Brief 	by 	the 	Federal 	Trade 	Commission
before 	the 	International 	Trade 	Administration,
Department 	of 	Commerce, 	Certain 	Softwood 	Lumber
Products 	from 	Canada, 	Countervailing 	Duty
Proceeding, 	April 	7, 	1983
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Brief 	by 	the 	Federal 	Trade 	Cornnission
on 	the 	Countervai ling 	Duty 	Investigation 	of
Certain 	Softwood 	Lumber 	Products 	from 	Canada
INTRODUCTION AND SlMMARY
On May 	19, 	1986, 	the 	Coalition 	for 	Fair 	Lumber 	Imports, 	a
group 	of 	United 	States 	softwood 	Imnber 	manufacturers 	and
associations 	representing 	United 	States 	lumber 	manufacturers,
filed 	a 	countervailing 	duty 	petition 	with 	the 	International 	Trade
COITmission 	("ITC"). 	The 	petition 	alleges 	that 	the 	domestic
softwood 	Imnber 	industry 	is 	threatened 	with 	material 	injury 	and
is 	being materially 	injured 	by 	reason 	of 	imports 	of 	sort'WOod
lumber 	that 	have 	benefited 	from 	various 	subsidies 	provided 	by 	the
Canadian 	federal 	and 	provincial 	governments. 	The 	major 	alleged
subsidy 	concerns 	the 	level 	of 	fees 	("stmnpage 	fees") 	set 	by 	the
provincial 	governments 	for 	the 	right 	to 	harvest 	soft'WOod 	timber
on 	government 	land 	("stmnpage 	rights").l 	The 	petitioners 	request
that 	countervailing 	import 	duties 	be 	imposed 	on 	these 	products.
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1 	The 	petition 	alleges 	that 	in 	addition 	to 	a 	stumpage 	fee
subsidy, 	there 	are 	a 	variety 	of other 	subsidies 	to 	the
Canadian 	timber 	industry. 	For 	example, 	petitioners 	allege
that 	the Canadian 	federal 	and 	provincial 	governments
subsidize 	their 	timber 	industry 	by 	purchasing 	equity 	rights,
prOViding 	grants 	and 	low-interest 	or 	interest-free 	loans 	to
lumber 	producers, 	and 	providing 	preferential 	investment 	tax
credits 	for 	the 	lmnber 	industry. 	(~Petition, at 	88-
90). 	Petitioners 	allege, 	in 	addition, 	that 	the Canadian
government 	subsidizes 	its 	timber 	industry 	by 	paying 	for 	the
reseeding 	of 	harvested 	timber 	lands 	and 	by 	several
transportation 	programs. 	(See 	Petition, 	at 	81-88). 	We 	do
not 	consider, 	in 	this 	brief-;-Whether 	the 	lumber 	industry 	in
the 	Un i ted 	S tat e sis 	1 ike 1y 	t 0 	be 	i n j u red 	0 r 	t h rea ten e d 	wit h
i n j u r y 	a s 	are sui t 	0 f 	the s e 	0 the r 	p r act ice s • 	Th e 	a na 1y sis
in 	this 	brief 	i.s 	limited 	to 	the 	alleged 	subsidy 	arising 	out
of 	the Canadian 	stumpage 	fee 	systems.
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The 	purpose 	of 	this 	brief 	is 	to 	assist 	the 	ITC 	in 	making 	its
preliminary 	determination 	on 	injury. 	In 	Section 	I, 	we 	argue 	that
the 	countervailing 	duty 	law 	should 	be 	applied 	to 	reduce
impediments 	to 	world 	trade 	and 	to 	preserve 	the 	benefits 	of
competition 	for 	United 	States 	consumers 	while 	protecting 	domestic
firms 	from 	unfair 	practices. 	In 	Section 	II, 	we 	argue 	that 	the
ITC 	should 	examine 	the 	causal 	link, 	if 	any, 	between 	an 	alleged
sUbsidy 	and 	injury 	to 	a 	domestic 	industry. 	If 	a 	domestic
industry's 	lost 	sales 	are 	not 	traceable 	to 	an 	alleged 	subsidy,
then 	no 	injury 	"by 	reason 	of" 	such 	imports 	should 	be 	found.
In 	Section 	III, 	we 	examine 	a 	single 	issue 	that 	arises 	in
this 	investigation. 	We 	consider 	whether 	a 	United 	States 	industry
can be 	injured 	because 	the 	Canadian 	governments 	do 	not 	employ a
competitive 	auction 	in 	allocating 	and 	charging 	for 	the 	rights 	to
cut 	an 	administratively-determined 	quantity of 	government 	timber
land. 	On 	the 	basis 	of 	the 	analysis 	by 	our 	Bureau 	of 	Economics,
we 	conclude 	that, 	while 	the 	Canadian 	stumpage 	fee 	systems
increase 	the 	profits 	of 	Canadian 	logging 	firms, 	they 	do 	not
increase 	the 	quantity 	of 	logs 	harvested 	in 	Canada 	or 	the 	quantity
of 	lumber 	products 	exported 	to 	the 	United 	States. 	Accordingly,
we 	conclude 	that 	the 	United 	States 	lumber 	industry 	is 	not 	injured
because 	the 	Canadians 	do 	not 	use 	a 	competitive 	auction 	to
allocate 	the 	fixed 	quantity 	of 	timber 	land 	to 	be 	cut.
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ARGUMENT
I. 	A Major 	Purpose 	of 	the 	Countervailing 	Duty 	Law 	Under 	the
Trade 	Agreements 	Act 	of 	1979 	Is 	To 	Promote 	Free 	Trade 	to 	the
Benefit 	of 	United 	States 	Consumers 	and 	Businesses.
The 	first 	United 	States 	countervailing 	duty 	law 	was 	enacted
as 	part 	of 	a 	general 	tariff 	statute 	iri 	1890. 2 	Ov~r 	the 	next
several 	decades, 	Congress 	modified 	the 	countervailing 	duty 	law
several 	times 3 	and 	supplemented 	it 	with 	antidumping 	laws 	in 	1916
and 	1921 4 	and 	with 	an 	unfair 	practices 	provision 	of 	the 	tariff
law 	in 	1922. 5 	The 	countervailing 	duty 	law 	was 	amended 	in 	1979,
when 	the 	Trade 	Agreements 	Act 	of 	1979 	("1979 	Act")6 	added 	the
"injury" 	test 	that 	the 	ITC 	is 	applying 	in 	this 	proceeding. 7 	The
tests 	for 	injury 	under 	the 	countervailing 	duty 	law 	are 	derived
from 	those 	in 	the 	1921 	antidumping 	law, 	and 	Congress 	has 	stated
that 	it 	expects 	the 	ITC 	will 	construe 	injury 	the 	same 	way 	under
2 	Tariff 	Act 	of 	1890, 	ch. 	1244, 	§ 	237, 	26 	Stat. 	584 	(1890).
3 	Tariff 	Act 	of 	1894, 	ch. 	349. 	§ 	182 	1/2, 	28 	Stat. 	521 	(1894);
Tariff 	Act 	of 	1897, 	ch. 	11, 	§ 5, 	30 	Stat. 	205 	(1897); 	Tariff
Act 	of 	1909, 	ch. 	6, 	§ 	6, 	36 	Stat. 	85 	(1909); 	Tariff 	Act 	of
1922, 	ch. 	356, 	§ 	303, 	42 	Stat. 	935 	(1922).
4 	15 	U.S.C. 	§§ 	71-77; 	Tariff 	Act 	of 	1921, 	ch. 	14, 	§ 201, 	42
Stat. 	11 	(1921).
5 	19 	U.S.C~ 	§ 	1337.
6 	See 	19 	U.S.C. 	§§ 	1671-1677g, 	2501 	et. 	~., 	Pub. 	L. 	No. 	96--
~ 93 	Stat. 	144 	(1979).
7 	19 	U.S.C. 	§ 	1671(b); 	see 	19 	U.S.C. 	§ 	1677(7). 	In 	1974,
Congress 	added 	an 	injury 	test 	for 	nondutiable 	imports. 	19
U.S.C. 	§ 1303(a)(2).
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both 	laws. 8 	The 	Trade 	and 	Tariff 	Act 	of 	1984 9 	further 	amended
the 	countervailing 	duty 	law, 	including 	the 	addition 	of 	a
provision 	that 	enumerated 	factors 	to 	be 	considered 	in 	determining
whether 	an 	industry 	in 	the 	United 	States 	is 	threatened 	with
material 	injury by 	reason 	of 	subsidized 	imports. 10
The 	history 	of 	their 	enactment 	suggests 	that 	the 	basic
purposes 	of 	these 	four 	tariff 	laws 	-- 	the 	countervailing 	duty
law, 	the 	two 	antidumping 	laws, 	and 	the 	unfair 	practices 	law 	--
are 	c~nsistent with 	the 	basic 	purposes 	of 	the 	antitrust 	laws.
Both 	through 	these 	tariff 	provisions 	and 	through 	the 	antitrust
laws 	enacted 	during 	the 	same 	era, 	Congress 	sought 	to 	create 	a
legal 	environment 	that 	would 	foster 	an 	efficient 	allocation 	of
resources. ll 	Moreover, 	the 	legislative history 	of 	the 	tariff
8 	See 	H.R. 	Rep. 	No. 	317, 	96th 	Cong., 	1st 	Sess. 	at 	45-46 	(1979)
"M.R. 	Rep. 	No. 	96-317"); 	S. 	Rep. 	No. 	249, 	96th 	Cong., 	1st
Sess. 	at 	57,87 	(1979) 	(liS. 	Rep. 	No. 	96-249").
9 	Pub. 	L. 	No. 	98-573, 	98 	Stat. 	2948 	(1984).
10 	19 	U.S.C. 	§ 1677(7)(F).
11 	The 	first 	countervailing 	duty 	statute 	was 	passed 	in 	the 	same
year 	as 	the 	first 	federal 	antitrust 	law, 	the 	Sherman 	Act.
Congress 	passed 	the 	first 	antidumping 	statute, 	15 	U.S.C.
§ 71-77, 	in 	1916, 	two 	years 	after 	passing 	the 	other 	two
major 	antitrust 	laws, 	the 	Clayton 	Act 	and 	the 	Federal 	Trade
Commission Act. 	The 	purpose 	of 	the 	1916 	antidumping 	law 	was
to 	place 	foreign 	firms 	selling 	in 	the 	United 	States 	in 	the
same 	position 	"with 	reference 	to 	unfair 	competition" 	as
domestic 	firms. 	H.R. 	Rep. 	No. 	922, 	64th 	Cong., 	1st 	Sess. 	9-
10 	(1916). 	In 	1921, 	Congress 	passed 	another 	antidumping
law, 	Tariff 	Act 	of 	1921, 	Ch. 	14, 	§ 201, 	42 	Stat. 	11 	(1921);
H.R. 	Rep. 	No.1, 	67th 	Cong., 	1st 	Sess. 	23-24 	(1921). 	In
1922, 	Congress 	made 	minor 	changes 	to 	the 	countervailing 	duty
law 	and 	enacted 	legislation 	prohibiting 	imports 	associated
with 	unfair 	methods 	of 	competition. 	19 	U.S.C. 	§ 	1337.
Senator 	Smoot, 	one 	of 	the 	sponsors 	of 	the 	1922 	tariff
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laws 	demonstrates 	Congressional 	concern 	about 	foreign 	companies
unfairly 	expanding 	their 	sales 	in 	the 	United 	States 	at 	prices
that 	United 	States 	firms 	of 	equal 	or 	greater 	relative 	efficiency
could 	not 	match. 	That 	history 	does 	not 	show 	that 	Congress
intended 	the 	tariff 	laws 	to 	exclude 	from 	the 	United 	States 	market
those 	foreign 	firms 	that 	have 	a 	comparative 	advantage 	or 	are
relatively more 	efficient 	than 	United 	States 	firms.
The 	countervailing 	duty 	law 	is 	intended 	to 	eliminate 	the
harm 	resulting 	from 	"unfair" 	competition 	and 	to 	assure 	that
United 	States 	consumers 	realize 	the 	benefits 	of 	"fair"
competition. 	Thus, 	if 	the 	Canadian 	lumber 	industry 	competes
successfully 	in 	the 	United 	States 	because 	the 	Canadian 	firms 	have
a 	comparative 	advantage 	or 	are 	more 	efficient, 	and 	not 	because 	of
government 	subsidy, 	then 	United 	States'consumers 	should 	receive
the 	benefits 	of 	the heightened 	competition 	engendered by 	those
imports. 	12
11 	(footnote 	continued)
legislation, 	said 	that 	these 	provisions 	were 	an 	extension 	of
the 	existing 	antidumping 	laws 	and 	the 	existing
countervailing 	duty 	law 	in 	order 	to 	protect 	United 	States
firms 	against 	"unfair 	competition." 	62 	Congo 	Rec. 	5874
(1922). 	See 	S. 	Rep. 	No. 	595, 	67th 	Cong., 	2d 	Sess. 	2-3
(1922). 	See 	also 	the 	statements 	of 	Senator 	Danforth 	and
Senator 	Heinz 	in 	the 	debates 	on 	the 	Trade 	Agreements 	Act 	of
1979. 	125 	Congo 	Rec. 	S. 	10306, 	10317 	(daily 	ed. 	July 	23,
1979).
12 	However, 	domestic 	producers 	may 	allege 	they 	are 	seriously
injured 	by 	an 	increase 	in 	fairly 	traded 	imports 	in 	section
fOl 	escape 	clause 	proceedings .. 	Such 	allegations 	are 	not 	at
lssue 	here.
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Both 	the 	language 	and 	the 	legislative 	history 	of 	the 	1979
Act 	establish 	that 	Congress 	did 	not 	intend 	the 	countervailing
duty 	laws 	to 	be 	narrowly 	protectionist. 	Rather, 	the 	purposes 	of
the 	1979 ~ct are 	"to 	foster 	the 	growth 	and 	maintenance 	of 	an 	open
world 	trading 	system; 	to 	expand 	opportunities 	for 	the 	commerce 	of
the 	United 	States 	in 	international 	trade; 	and 	to 	improve 	the
rules 	of 	international 	trade 	and 	to 	provide 	for 	the 	enforcement
of 	such 	rules." 	19 	U.S.C. 	§ 	2502(2), 	(3), 	(4). 	See 	also 	S. 	Rep.
No. 	96-249, 	supra, 	at 	31 	and 	H.R. 	Rep. 	No. 	96-317, 	supra, 	at
38. 	In 	particular, 	Congress 	was 	concerned 	about 	"the 	use 	of
practices 	which 	can 	distort 	trade 	or 	create 	unfair 	competition 	or
trade 	discrimination, 	such 	as 	subsidies 	• 	• 	" 	H.R. 	Rep. 	No.
96-317, 	supra, 	at 	11. 13 	Congress 	has 	sought 	through. 	the
countervailing 	duty 	laws 	to 	discipline 	only 	those 	firms 	that 	are
selling 	in 	the 	United 	States 	market 	on 	the 	basis 	of 	an 	unfair
advantage 	conferred 	upon 	them 	by 	their 	government 	(or 	by 	other
sources). 	On 	the 	other 	hand, 	Congress 	intended 	United 	States
consumers 	to 	receive 	the 	substantial 	benefits 	that 	flow 	from
13 	In 	the 	congressional 	debates 	on 	the 	1979 	Act, 	Senator 	Heinz
said 	that 	the 	countervailing 	duty 	and 	antidumping 	provisions
of 	the 	1979 Act 	are 	aimed 	at 	countries 	that 	do 	not 	rely 	on
"free 	market 	principles 	and 	••• 	on 	competition 	and 	the 	law
of 	comparative 	advantage 	as 	arbiters 	of 	the 	marketplace."
Congo 	Rec. 	Sl0306 	(daily 	ed. 	July 	23, 	1979). 	In 	the 	same
debates 	Senator 	Danforth 	explained 	that 	the 	countervailing
duty 	and 	antidumping 	provisions 	were 	aimed 	at 	"adverse
distortions 	of 	free 	trade." 	rd. 	at 	Sl03l7. 	He 	said 	that
subsidized 	imports 	are 	not 	i'n-the 	best 	interest 	of 	the
United 	States 	consumer, 	since 	"the 	long 	run 	impact 	is 	likely
to 	be higher 	prices 	and 	greater 	profits 	for 	the 	foreign
producers 	once 	the 	domestic 	competition has 	been
crippled." 	rd. 	at 	Sl0317.
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unrestricted 	access 	to 	foreign 	firms 	that 	compete 	in 	United
States 	markets 	on 	the 	basis 	of 	comparative 	advantage 	or 	relative
efficiency.
Countervailing 	duties 	can be 	imposed 	on 	subsidized 	imports
only 	if 	the 	ITC 	determines 	that 	there 	is 	material 	injury 	or 	the
threat 	of 	material 	injury 	to 	a 	domestic 	industry. 	Trade
Agreements 	Act 	of 	1979, 	§ 	70l(a)(2), 	19 	U.S.C. 	§ 	1671(a)(2).
This 	injury 	standard 	does 	not 	indicate 	protectionist 	intent 	on
the 	part 	of 	Congress. 	To 	the 	contrary, 	the 	injury 	standard 	wa~
added 	by 	the 	1979 	Act 	to 	narrow 	the 	application 	of 	tariffs 	under
the 	countervailing 	duty 	law. 14
14 	Before 	1979, 	there 	was 	no 	requirement 	of 	injury 	to 	a
domestic 	industry 	in 	order 	to 	impose 	countervailing 	duties
on 	subsidized 	dutiable 	imports. 	In 	the 	Trade 	Act 	of 	1974,
Congress 	determined 	that 	"barriers 	to 	(and 	other 	distortions
of) 	international 	trade" 	were 	adversely 	affecting 	United
States 	exports 	and 	authorized 	the 	President 	to 	negotiate
international 	agreements 	to harmonize, 	reduce, 	or 	eliminate
these 	barriers 	and 	distortions. 	19 	U.S.C. 	§ 2ll2(a). 	The
United 	States 	subsequently 	negotiated, 	as 	part 	of 	the 	Tokyo
Round 	of 	Multilateral 	Trade 	Negotiations, 	the 	Agreement 	on
Interpretation 	and 	Application 	of 	Articles 	VI, 	XVI, 	and
XXIII 	of 	the 	General 	Agreement 	on 	Tariffs 	and 	Trade
("Countervailing 	Duty Agreement"). 	As 	part 	of 	this
negotiation, 	the 	United 	States 	agreed 	to 	add 	to 	our
countervailing 	duty 	law 	the 	requirement 	that 	such 	duties
will 	be 	imposed 	only 	if 	a 	United 	States 	industry 	is 	injured
by 	reason 	of 	the 	subsidized 	imports, 	and 	the 	countervailing
duty provisions 	in 	the 	1979 	Act 	had 	the 	specific 	purpose 	of
implementing 	"the 	international 	agreements 	relating 	to 	new
disciplines 	on 	trade 	distorting 	subsidies 	and 	dumping
practices 	and 	procedures 	for 	taking 	countervailing 	and
antidumping 	measures." 	H.R. 	Rep. 	No. 	96-317, 	supra, 	at 	2.
The 	requirement 	that 	an 	additional 	legal 	test 	be 	satisfied
prior 	to 	levying 	a 	countervailing 	duty 	obviously 	was
intended 	by 	Congress 	to 	make 	it 	more 	difficult 	for 	the
United 	States 	to 	impose 	countervailing 	duties.
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Congress 	was 	mindful 	of 	the 	potentially 	adverse 	effects 	on
United 	States 	business 	of 	retaliatory 	tariffs 	imposed 	by 	foreign
governments 	on. United 	States 	exports, 	and 	Congress 	intended 	the
1974 Act 	"to 	expand 	opportunities 	for 	the 	commerce 	of 	the 	United
States 	in 	international 	trade" 	by 	improving 	the 	rules 	of
international 	trade. 	19 	U.S.C. 	§ 	2502. 	In 	passing 	the 	1979 	Act,
Congress 	foresaw 	benefits 	to 	United 	States 	exports 	if 	the
agreements 	it 	implemented 	were 	fairly 	carried 	out:
These 	rules 	could 	be 	important 	in 	reducing 	the
number 	of 	foreign 	sUbsidy 	practices, 	and 	thus 	the
need 	for 	countervailing 	duties. 	Furthermore, 	if
vi~orously enforced 	by 	the 	United 	States 	and
£a~rly carried 	out 	by 	all 	parties, 	these
provisions 	should 	expand 	the 	competitive
o 	ortunities 	of 	U.S. 	ex 	rters 	who 	currentl 	face
su 	s~ 	~ze 	compet~t~on In 	ore~gn mar 	ets.
S. 	Rep. 	96-249, 	supra, 	at 	38 	(emphasis 	added). 	Congress 	realized
in 	1979 	that, 	because 	of 	the 	precedential 	value 	of 	countervailing
duty 	decisions 	by 	this 	country, 	such 	decisions 	could 	themselves
have 	a 	significant 	impact 	on 	United 	States 	exports. 	If 	the 	ITC
finds 	that 	an 	action 	by a 	foreign 	government 	has 	led 	to 	injury 	in
the 	United 	States, 	and 	if 	comparable 	actions 	are 	regularly 	taken
in 	the 	United 	States, 	then 	our 	exports 	may 	be 	impaired 	because 	of
retaliatory 	countervailing 	duties, 	based 	on 	our 	own 	precedent.
This 	potential 	impairment 	is 	relevant 	in 	determining 	whether
Congress 	intended 	particular 	foreign 	practices 	to 	lead 	to 	the
imposition 	of 	countervailing 	duties.
In 	sum, 	we 	suggest 	that 	in 	administering 	the 	countervailing
duty 	law, 	the 	ITC 	should 	be 	guided 	by 	the 	legislative 	purpose 	of
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the 	law: 	to 	reduce 	impediments 	to 	world 	trade 	whi Ie 	preserving
the 	benefits 	of 	competition 	for 	consumers 	and 	protecting domestic
firms 	from 	unfair 	practices.
II. 	The 	ITC Should 	Determine Whether 	the Alleged
Foreign 	Subsidy 	Actuallj 	Caused 	Any 	Material
Injury 	That 	May 	Be 	Foun 	To 	Exist.
We 	suggest 	that 	the 	language 	of 	the Countervai ling 	Duty
Agreement, 	the 	language 	of 	the 	1979 	Act 	implementing 	the
Countervailing Duty 	Agreement, 	and 	the 	legislati.ve 	history 	of 	the
1979 	Act 	all 	require 	the 	ITC 	to 	apply 	a 	sensitive 	causation
test: 	countervai ling 	duties 	should 	be 	imposed 	only 	if 	the
subsidy 	is 	determined 	by 	the 	ITC 	to 	be 	a 	cause 	of 	material 	injury
to 	a 	domestic 	industry.lS 	In 	the 	instant 	case, 	the 	ITC 	should
att~ibute to 	the 	alleged 	subsidy 	only 	the 	injury 	to 	the 	United
States 	lumber 	industry 	that 	results 	from 	the 	alleged 	subsidy.
Any 	harm 	to 	the 	domestic 	industry 	resulting 	from 	factors 	not
attributable 	to 	the 	alleged 	subsidy 	should 	not 	be 	the 	basis 	for 	a
finding 	of 	injury 	within 	the 	meaning 	of 	the 	countervai ling 	duty
statute.
A. 	The 	1979 	Act 	Is 	Consistent with 	the
Countervai ling Duty 	Agreement's 	Requirement
To Consider 	the 	Effect 	of 	the Alleged 	Subsidy.
The 	Uni ted 	States 	statutory 	scheme 	concerning 	SUbsidies,
causation, 	and 	injury 	is 	in 	accord 	with 	the 	Countervailing 	Duty
----------
IS 	As 	the 	petition 	recognizes 	at 	page 	99, 	there 	are 	those 	who
believe 	that 	a 	causal 	link 	must 	be 	established 	between 	an
unfair 	practice and 	injury. 	At 	the 	conference, 	both
petitioner 	and 	its 	counsel 	alleged 	that 	the 	Canadian
stumpage 	fee 	systems 	were 	injuring 	the 	United 	States
industry. 	(Tr. 	at 	26, 	70, 	94, 	98).
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Agreement,16 	negotiated 	as 	part 	of 	the 	Tokyo 	Round 	of
Multilateral 	Trade 	Negotiations. 	The 	article 	of 	the
countervailing 	Duty Agreement 	governing 	"determination of 	injury"
provides, 	in 	pertinent 	part:
It 	must 	be 	demonstrated 	that 	the 	subsidized
imports 	are, 	through 	the 	effects 	of 	the 	subsidy,
causing 	injury 	within 	the 	meaning 	of 	this
Agreement.
Countervailing 	Duty Agreement, 	Article 	6, 	Paragraph 	4 	(footnote
omitted) 	(emphasis 	added). 	Several 	other 	provisions 	of 	the
Countervailing 	Duty Agreement 	reinforce 	this 	provision. 	For
example, 	the 	preamble 	to 	the 	Agreement 	recognizes 	that 	"the
emphasis 	of 	this 	Agreement 	should 	be 	on 	the 	effects 	of
subsidies." 	Additionally, 	Article 	2, 	governing 	domestic
procedures 	for 	conducting 	investigations 	of 	alleged 	sUbsidies,
provides 	that 	"(a]n 	investigation 	shall 	be 	terminated 	when 	the
investigating 	authorities 	are 	satisfied 	either 	that 	no 	sUbsidy
exists 	or 	that 	the 	effect 	of 	the 	alleged 	subsidy 	on 	the 	industry
is 	not 	such 	as 	to 	cause 	injury." 	Id., 	Article 	2, 	Paragraph 	12.
The 	1979 	Act 	implements 	the 	Countervailing 	Duty 	Agreement,
19 	U.S.C. 	§ 2503, 	and 	adopts 	the 	requirement 	of 	a 	causal 	link
between 	sUbsidy 	and 	injury by 	expressly 	authorizing 	the 	lTC, 	in
examining 	an 	alleged 	threat 	of 	material 	injury, 	to 	consider 	"the
effects 	likely 	to 	be 	caused 	by 	the 	subsidy." 	Act 	at
16 	Reprinted 	in 	Agreements 	Reached 	in 	the 	Tokyo 	Round 	of 	the
MUltilateral 	Trade 	Negotiations, 	H.R. 	Doc. 	No. 	153, 	96th
Cong., 	1st 	Sess., 	Pt. 	1 	(June 	19, 	1979).
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§ 771(7)(E)(i), 	19 	U.S.C. 	§ 1677(7)(E)(i); 	19 	C.F.R. 	§ 	207.26(d)
(1981).17 	It 	follows 	that 	the 	ITC 	should 	consider 	"the 	effects
likely 	to 	be 	caused 	by 	the 	subsidy" 	not 	only 	when 	there 	is
alleged 	to 	be 	a 	threat 	of 	material 	injury~ 	but 	also 	when 	material
injury 	is 	alleged 	to 	be 	actually present. 	The 	1979 	Act 	adopts 	a
causal 	link 	between 	a 	subsidy 	and 	alleged 	present 	injury 	by
requiring 	imposition 	of 	a 	countervailing 	duty 	only 	if 	the 	ITC
"determines 	that 	an 	industry 	in 	the 	United 	States 	(i) 	is
materially 	injured, 	or 	(ii) 	is 	threatened 	with 	material 	injury
• 	• 	• 	by 	reason 	of 	imports 	of 	[subsidized] 	merchandise 	or 	by
reason 	of 	sales 	(or 	the 	likelihood 	of 	sales) 	of 	[subsidized]
merchandise 	for 	importation." 	19 U.S.C. 	§167l(a)(2).18
Examining 	the 	nature 	and 	likely 	effect 	of 	the 	subsidy 	is
especially 	appropriate 	when, 	as 	here, 	injury 	and 	threat 	of 	injury
both 	are 	alleged. 	Petition, 	at 	1, 	102.
Factors 	other 	than 	a 	subsidy 	can 	cause 	injury, 	and 	the
countervailing 	Duty Agreement 	and 	the 	ITC's 	regulations 	are 	in
accord 	that 	other 	factors 	should 	be 	considered. 	The 	Agreement
recognizes 	that 	if 	"other 	factors" 	are 	causing 	injury 	to 	a
17 	Section 	771(7)(E)(i) 	is 	taken 	almost 	directly 	from 	the
Countervailing 	Duty 	Agreement, 	supra 	at 	Article 	6, 	para. 	1,
n. 	17, 	which 	authorizes 	the 	use 	of 	inferences 	when 	there 	is
no 	direct 	evidence 	because 	the 	actual 	injury 	is 	as 	yet 	only
threatened.
18 	The 	1984 	Act 	amended 	this 	section 	to 	make 	explicit 	that 	the
ITC 	may 	reach 	an 	affirmative 	injury 	determination 	if 	the
harm 	is 	caused by 	sales 	for 	future 	delivery 	or 	by 	future
sales. 	Trade 	and 	Tariff 	Act 	of 	1984, 	§ 	602(a)(1), 	19 	U.S.C.
§ l671(a)(2).
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domestic 	industry 	at 	the 	same 	time 	that 	the 	sUbsidy 	is 	causing
injury, 	the 	injuries 	caused 	by 	such 	"other 	factors" 	need 	not 	be
attributable 	to 	the 	subsidized 	imports. 	Countervailing 	Duty
Agreement, 	Article 	6, 	Paragraph 	4. 	The 	Agreement 	lists 	some 	of
these 	representative 	"other 	factors." 	This 	list 	is 	incorporated
verbatim 	in 	the 	lTC's 	injury 	regulations, 	19 	C.F.R. 	§ 	207.27
(1981), 	in 	which 	the 	lTC 	states 	it 	will 	take 	into 	account
information 	concerning 	such 	other 	factors. l9 	In 	general, 	most 	of
the 	ITC 	regulations 	implementing 	the 	injury 	requirement 	are 	the
same 	as 	the 	language 	of 	the 	Countervailing 	Duty Agreement. 20
The 	statutory 	language 	on 	causation 	and 	actual 	injury 	tracks
the 	language 	of 	the 	Countervailing 	Duty Agreement, 	although 	it
does 	not 	repeat 	verbatim 	the 	Agreement's 	language. 	Nevertheless,
the 	statutory 	language 	on 	injury 	supports 	an 	interpretation 	that
is 	consistent 	with 	the 	language 	of 	the 	Countervailing 	Duty
Agreement, 	and 	the 	ITC 	should 	employ 	an 	interpretation 	of 	the
19 	The 	"other 	factors" 	identified 	in 	the 	footnote 	to 	Article 	6,
Paragraph 	4 	of 	the 	countervailing 	Duty Agreement, 	as 	listed
in 	the 	ITC 	injury 	regulations, 	19 	C.F.R. 	§ 207.27 	(1981),
are 	"volume 	and 	prices 	of 	non-subsidized 	imports 	or 	imports
not 	sold 	at 	less 	than 	fair 	value, 	contraction 	in 	demand 	or
changes 	in 	patterns 	of 	consumption, 	trade 	restrictive
practices 	of 	and 	competition between 	the 	foreign 	and
domestic 	producers, 	developments 	in 	technology, 	and 	the
export 	performance 	and 	productivity 	of 	the 	domestic
industry."
20 	In 	the 	"Factors 	considered 	in determination 	of 	material
injury," 	19 	C.F.R. 	§ 	207.26 	(1981), 	section 	(a) 	is 	taken
directly 	from 	Article 	6, 	Paragraph 	1 	of 	the 	Tokyo 	Agreement;
sections 	(b)(l) 	and 	(b)(2) 	from 	Paragraph 	2; 	sections 	(b)(3)
and 	(c)(2) 	from 	Paragraph 	3; 	and 	part 	of 	section 	(d) 	from
Paragraph 	1 	(footnote).
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statute 	that 	gives 	recognition 	to 	this 	congruity.2l 	It 	is 	well-
settled 	that 	when 	a 	treaty 	and 	statute 	"relate 	to 	the 	same
sUbject, 	the 	courts 	will 	always 	endeavor 	to 	construe 	them 	so 	as
to 	give 	effect 	to 	both, 	if 	that 	can be 	done 	without 	violating 	the
language 	of 	either." 	United 	States 	v. 	Lee 	Yen 	Tai, 	185 	U.s. 	213,
221 	(1902): 	see 	John 	T. 	Bill 	Co. 	v. 	United 	States, 	104 	F.2d 	67,
74 	(C.C.P.A. 	1939) . (construing 	• 	371 	of 	the 	Tariff 	Act 	of 	1930 	so
as 	to 	be 	consistent 	with 	Article 	VII 	of 	the 	1925 	Treaty 	between
the 	United 	States 	and 	Germany).
In 	sum, 	the 	language 	of 	the 	Countervailing 	Duty Agreement
and 	the 	1979 Act 	support 	an 	interpretation 	that 	the 	ITC 	should
examine 	the 	causal 	link 	between 	an 	alleged 	subsidy 	and 	injury 	to
a 	domestic 	industry.
21 	While 	section 	3(a) 	of 	the 	1979 	Act, 	19 	U.S.C. 	§ 2504(a),
states 	that 	the 	1979 	Act 	prevails 	if 	there 	is 	a 	"conflict"
between 	the 	statute 	and 	the 	Countervailing 	Duty Agreement,
Congress 	did 	not 	believe 	that 	there 	was 	such a 	conflict.
S. 	Rep. 	No. 	249, 	96th 	Cong., 	1st 	Sess. 	(1979) 	at 	36. 	The
Senate 	Report, 	in 	summarizing 	the 	Countervailing 	Duty
Agreement, 	states 	that 	the 	Agreement 	provides 	for 	"a 	'causal
link' 	between 	the 	subsidization 	••. 	and 	the 	injury
(Article 	2 	of 	the 	[Countervailing 	Duty] 	Agreement)." 	Id. 	at
41. 	The 	Senate 	Report 	goes 	on 	to 	say 	that 	the 	1979 	Acr-
"would 	establish 	the 	conditions 	for 	imposition 	of
countervailing 	duties 	consistent 	with 	the 	[Countervailing
Duty] 	Agreement." 	Id. 	at 	44. 	In 	enacting 	section 	3(a) 	of
the 	1979 Act, 	Congress 	was 	concerned 	that 	there 	might 	be 	a
conflict 	in 	the 	future 	if 	the 	Countervailing 	Duty 	Agreement
was 	amended. 	S. 	Rep. 	No. 	249, 	at 	36.
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B. 	The 	Legislative 	History 	of 	the 	1979 	Act
Indicates 	that 	the 	ITC 	Should 	Examine
the 	Effects 	of 	the 	Alleged 	Subsidy.
The 	legislative 	history 	of 	the 	1979 	Act 22 also 	indicates
that 	Congress 	intended 	the 	ITC 	to 	determine 	whether 	an 	alleged
subsidy 	is 	the 	actual 	cause 	of 	injury 	to 	a 	domestic 	industry.23
As 	discussed 	below, 	the 	drafters 	of 	the 	bill, 	in 	explaining 	its
operation, 	frequently 	used 	the 	statutory 	phrase 	"injury 	... 	by
reason 	of 	imports" 	as 	a 	synonym 	for 	the 	phrase 	"injury 	through
the 	effects 	of 	a 	sUbsidy."
The 	President, 	in 	1979, 	submitted 	to 	Congress 	both 	a 	trade
bill 	and 	Statements 	of 	Administrative 	Action, 	which 	described
"the 	manner 	in 	which 	the 	proposed 	legislation 	is 	to 	be
22 	Title 	VI 	of 	the 	Trade 	and 	Tariff 	Act 	of 	1984 did 	not 	amend
the 	portions 	of 	the 	countervailing 	duty 	law 	that 	are 	at
issue here.
23 	The 	legislative history 	may 	be 	used 	to 	construe 	a 	statutory
phrase 	even 	when 	its 	meaning 	appears 	to 	be 	"clear."
Train 	v. 	Colorado 	Public 	Interest 	Research 	Group, 	Inc., 	426
u.S. 	1, 	10 	(1976) 	(legislative 	history 	of 	Federal 	Water
Pollution 	Control 	Act 	("FWPCA") 	indicates 	that 	the
Environmental 	Protection 	Agency 	("EPA") 	does 	not 	regUlate
radioactive 	nuclear 	waste 	subject 	to 	regUlation 	by 	the
Atomic 	Energy 	Commission 	even 	though 	the 	FWPCA 	says 	the 	EPA
regUlates 	"radioactive 	materials"); 	Philko Aviation 	Inc. 	v.
Shacket, 	462 	U.S. 	406, 	409-10 	(1983) 	(legislative 	history 	of
§ 	S03(c) 	of 	the 	Federal 	Aviation 	Act 	of 	1958 	is 	a 	better
indicator 	of 	the 	meaning 	of 	the 	statute 	than 	is 	the 	literal
language 	of 	the 	statute); 	AI 	Tech 	Specialit¥ 	Steel 	Corp. 	v.
United 	States, 	6 	ITRD 	1161, 	1167-69 	(Fed. 	Clr. 	1984)
(legislative history of 	1979 Act 	indicates 	that
"investigation" 	in 	section 	776(a) 	of "the 	1979 Act, 	U.S.C.
§ 	1677e(a), 	includes 	a 	"periodic 	review" 	under 	section 	751
of 	the 	1979 	Act, 	19 	U.S.C. 	§ 	1675, 	even 	though 	the
Department's 	regulations 	consider 	a 	"periodic 	review" 	to 	be
a 	"proceeding" 	rather 	than 	an 	"investigation").
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administered." 	Statements 	of 	Administrative 	Action, 	96th 	Cong.,
1st 	Sess., 	House 	Document 	No. 	96-153, 	Part 	II 	(June 	19, 	1979)
[hereinafter 	"Statements"], 	at 	389. 	In 	its 	discussion 	of 	the
"determination of 	material 	injury," 	the 	Statements 	explained:
It 	is 	expected 	that 	in 	its 	investigation 	the
Commission 	will 	continue 	to 	focus 	on 	the
conditions 	of 	trade 	and 	development 	within 	the
industry 	concerned. 	For 	one 	industry, 	an
apparently-small 	volume 	of 	imports 	may have 	a
significant 	impact 	on 	the 	market: 	for 	another 	the
same 	volume 	might 	not 	be 	significant. 	Similarly,
for 	one 	type 	of 	product, 	price 	may 	be 	the 	key
factor 	in 	determining 	sales 	elasticity, 	and 	a
small 	price 	differential 	resulting 	from 	the 	amount
of 	the 	sUbsidy 	or 	the 	margin 	of 	dumping 	can 	be
decisive: 	in 	others 	the 	size 	of 	the 	margin 	may 	be
of 	lesser 	significance.
The 	petitioner 	must 	demonstrate, 	and 	the
Commission 	must 	satisfy 	itself 	that, 	in 	light 	of
all 	the 	information 	presented, 	there 	is 	the
requisite 	causal 	link 	between 	the 	subsidization 	or
dumping 	and 	material 	injury.
Statements, 	at 	434-35 	(emphasis 	added). 	Congress 	approved 	these
Statements 	submitted 	to 	it 	by 	the 	President. 	Trade 	Agreements
Act 	of 	1979, 	§ 	2(a), 	19 	U.S.C. 	§ 	2503(a).
Both 	the 	House 	and 	Senate 	reports 	covering 	the 	1979 Act
indicate 	that 	Congress 	expected 	the 	ITC 	to 	determine 	the 	effects
of 	a 	subsidy. 	The 	Senate 	report 	notes 	that 	in 	determining
whether 	injury 	is 	"by 	reason 	of" 	subsidized 	imports, 	the 	ITC
considers, 	inter 	alia, 	"how 	the 	effects 	of 	the 	[subsidy] 	relate
to 	the 	injury." 	S. 	Rep. 	No. 	249, 	96th 	Cong., 	1st 	Sess. 	(1979),
at 	57. 	The 	Senate 	Report 	elaborates 	on 	this 	point 	as 	follows:
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It 	is 	expected 	that 	in 	its 	investigation 	the
Commission 	will 	continue 	to 	focus 	on 	the
conditions 	of 	trade, 	competition, 	and
development 	regarding 	the 	industry
concerned. 	For 	one 	industry, 	an 	apparently
small 	volume 	of 	imports 	may have 	a
significant 	impact 	on 	the 	market: 	for
-another, 	the 	same 	volume 	might 	not 	be
significant. 	Similarly, 	for 	one 	type 	of
product, 	price 	may 	be 	the 	key 	factor 	in
making 	a 	decision 	as 	to 	which 	1roduct 	to
purchase 	and 	a 	small 	price 	die 	erential
resulting 	from 	the 	amount 	of 	the 	subsidy 	or
the 	margin 	of 	dumping 	can 	be 	decisive: 	for
others, 	the 	size 	of 	the 	differential 	may 	be
of 	lesser 	significance.
Id. 	at 	88 	(emphasis 	added). 	The 	House 	of 	Representatives 	Report
contains 	nearly 	identical 	language. 24
Accordingly, 	the 	legislative history 	of 	the 	1979 	Act
supports 	the 	view 	that 	the 	ITC 	should 	evaluate 	the 	effect 	of 	an
alleged 	subsidy 	on 	a 	domestic 	industry 	in 	order 	to 	properly
determine 	whether 	the 	domestic 	industry 	is 	being 	injured 	or 	has
been 	injured 	within 	the 	meaning 	of 	the 	statute.
24 	It 	is 	expected 	that 	in 	its 	investigation 	the
·ITC 	will 	continue 	to 	focus 	on 	the 	conditions
of 	trade 	and 	development 	within 	the 	industry
concerned. 	For 	one 	industry, 	an 	apparently
small 	volume 	of 	imports 	may have 	a
significant 	impact 	on 	the 	market: 	for 	another
the 	same 	volume 	might 	not 	be 	significant.
Similarly, 	for 	one 	type 	of 	product, 	price 	may
be 	the 	key 	factor 	in 	determining 	the 	amount
of 	sales 	elasticit 	, 	and 	a 	small 	rice
1 	erent1al 	result1ng 	rom 	the 	amount 	of 	the
subsid 	or 	the 	mar 	in 	of 	dum 	in 	can be
eC1S1ve: 	1n 	ot 	ers 	the 	Size 	0 	the 	margin
may 	be 	of 	lesser 	significance.
H.R. 	Rep. 	No. 	317, 	96th 	Cong., 	1st 	Sess. 	(1979),
at 	46 	(emphasis 	added).
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In 	sum, 	the 	statutory 	language 	and 	legislative 	history 	of
the 	19 79 	Act 	are 	con sis t en t 	wit h 	the 	I a n gu age 	0 f 	the
Countervailing 	Duty Agreement 	that 	the 	ITC 	should 	examine 	"the
effects 	of 	the 	subsidy." 	We 	turn 	now 	to 	an 	examination 	of 	the
effects 	of 	the 	major 	subsidy 	alleged 	in 	the 	petition.
III. 	The 	Absence 	of 	an 	Auction 	for 	Stumpage 	Rights
Is 	Likely 	To 	Have 	No 	Effect 	on 	the 	Price 	or
Quantity 	of 	Exports 	of 	Softwood 	Lumber
Products 	to 	the 	United 	States.
Economic 	analysis 	suggests 	that 	our 	domestic 	lwnber 	industry
is 	not 	injured 	by 	the 	system 	the Canadian 	governments 	use 	to
allocate 	the 	rights 	to 	harvest 	the 	quantity 	of 	timber 	land 	that
they 	have 	determined 	should 	be 	cut 	and 	to 	set 	the 	price 	charged
for 	those 	harvesting 	rights 	Canadian 	stwnpage 	fees.25 	This
conclusion 	follows 	from a 	sequence 	of 	four 	observations: 	(1) 	A
domestic 	industry 	can 	be 	injured 	only 	if 	the 	alleged 	subsidies
increase 	the 	quantity 	(and 	decrease 	the 	price) 	of 	a 	commodity
---------
25 	The 	United 	States 	timber 	industry 	filed 	a 	countervailing
duty 	petition 	in 	October 	1982 	that 	is 	similar 	to 	the 	instant
petition 	in 	many 	respects. 	In 	both 	petitions, 	the 	major
allegation 	is 	that 	Canadian 	lwnber 	producers 	are 	being
subsidized 	by 	the 	methods 	used 	by 	the Canadian 	national 	and
provincial 	governments 	to 	allocate 	and 	charge 	for 	the 	rights
to 	harvest 	timber. 	In 	early 	1983, 	Dr. 	David 	Tarr 	of 	the
Federal 	Trade Commission 	("FTC") 	starf 	conducted 	an 	economic
analysis 	of 	this 	allegation. 	The 	results 	are 	contained 	in 	a
brief 	that 	the FTC 	fi led 	with 	the 	Department 	of 	Conmerce 	on
April 	7, 	1983, 	in 	connection with 	its 	investigation 	of 	the
earlier 	petition. 	Prehearing 	Brief 	by 	the 	Federal 	Trade
Commission 	before 	the 	International 	Trade 	Administration,
Department 	of 	Conmerce, 	Certain 	Softwood 	Lwnber 	Products
from 	Canada, 	Countervai ling 	Duty 	Proceeding, 	Apri I 	7, 	1983
(hereinafter 	"1983 	FTC 	brief"). 	That 	analysis 	is 	reproduced
i nth e 	a p pen d i x 	0 f 	t his 	b r i e Co 	Th e 	cur r e n t 	pet i t ion 	doe s
not 	allege 	that 	the 	Canadian 	stwnpage 	fee 	system 	operates
differently 	today 	than 	it 	did 	in 	1983.
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i mp 0 r ted 	inc omp e tit ion 	wit h 	the 	d orne s tic 	0 u t put. 	( 2) 	Here,
however, 	the 	quantity 	of 	Canadian 	timber 	put 	up 	for 	harvest 	each
year 	on 	public 	lands 	is 	set 	by 	a 	government 	decis ion, 	just 	as 	it
is 	in 	the 	United 	states. 	It 	is 	not 	determined 	by market 	forces
and, 	therefore, 	it 	does 	not 	depend 	upon 	the amount 	of 	tirrber 	that
might 	be 	profitably 	produced 	at 	a 	particular 	stumpage 	fee.
Consequently, 	a 	low 	fee 	cannot 	increase 	the 	quantity 	of 	timber
ultimately 	produced. 	(3) 	A 	low 	stumpage 	fee 	may 	merely 	increase
the 	profi ts 	of 	Canadian 	logging 	companies, 	because 	thei r 	to tal
c.osts 	are 	lower 	while 	the 	market 	value 	of 	their 	timber 	is
unchanged. 	Those 	companies 	cannot 	increase 	product ion, 	however,
because 	the 	Canadian 	national 	and 	provincial 	governments, 	not 	the
loggers, 	control 	the 	rate 	at 	which 	tirrber 	may 	be 	harvested. 	(4)
This 	situation 	is, 	thereforE!, 	quite 	different 	from 	an 	ordinary
subsidy 	because 	it 	does 	not 	increase 	production 	and 	hence 	does
not 	increase 	exports 	to 	the 	United 	States.
For 	this 	set 	of 	reasons 	we 	suggest 	that 	the 	dornest ic 	lumber
industry 	has 	not 	be-en 	injured 	by 	the 	Canadian 	stumpage 	fee
systems, 	and 	that 	countervailing 	duties 	based 	on 	those 	systems
would 	not 	be 	appropriate. 	These 	four 	considerations 	will 	be
discussed 	in 	sequence.
A. 	Only 	Increased 	Imports 	Wi 11 	Injure
an 	Industry 	in 	the 	United 	States.
In 	evaluating 	an 	alleged 	subsidy, 	it 	is 	important 	to
recognize 	that 	a 	United 	States 	industry 	can 	be 	injured 	only 	if
the 	alleged 	subsidy 	increases 	the 	quantity 	of 	imports 	coming 	into
the 	United 	States. 	If 	the 	subsidy 	does 	not 	increase 	the 	supply
o f 	imp 0 r t sat 	any 	pa r tic u Ia r 	p ric e, 	the nth e 	sub s i dy 	wi lIn 0 t
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cause 	the 	price 	of 	the 	product 	to 	be 	lower 	than 	it 	would
otherwise have 	been. 26 	If 	the 	price 	of 	the 	domestic 	product 	does
not 	fall 	because 	of 	the 	alleged 	sUbsidy, 	then 	the 	alleged 	subsidy
does 	not 	cause 	the 	output 	of 	the 	domestic 	industry 	to 	decline.
This, 	in 	turn, 	would 	mean 	that 	all 	other 	measures 	of 	industry
well-being, 	such 	as 	employment 	and 	profits, 	will 	not 	be 	adversely
affected 	by 	the 	alleged 	subsidy 	and 	any 	observed 	deterioration 	in
the 	domestic 	industry's 	condition 	must 	be 	due 	to 	factors 	other
than 	the 	alleged 	sUbsidy. 	'Thus, 	in 	determining 	whether 	the
alleged 	subsidy has 	caused 	injury 	to 	a 	domestic 	industry, 	the 	ITC
should 	consider 	whether 	the 	alleged 	subsidy has 	increased 	the
quantity 	of 	the 	good 	being 	imported 	into 	the 	United 	States.
B. 	The 	Stumpage 	Fee 	Does 	Not 	Increase 	Canadian 	Production.
Canadian 	stumpage 	fee 	systems 	do 	not 	result 	in 	an 	increase
in 	the 	quantity 	of 	Canadian 	lumber 	imported 	into 	the 	United
States 	because 	the 	stumpage 	fee 	systems 	do 	not 	lead 	to 	an
increase 	in 	the 	quantity 	of 	logs 	harvested 	in 	Canada. 	In
general, 	the 	quantity 	of 	logs 	harvested 	under 	the 	current
26 	When 	the 	imported 	and 	domestic 	products 	are homogeneous,
they 	will 	sell 	in 	the 	domestic 	market 	at 	a 	single 	price
determined 	by 	total 	supply 	(imports 	plus 	domestic 	output)
and 	domestic 	demand. 	Domestic 	supply 	and 	domestic 	demand
are 	not 	affected 	by a 	foreign 	SUbsidy. 	Therefore, 	if 	the
supply of 	imports 	is 	not 	increased, 	the 	domestic 	price 	must
be 	unchanged. 	If 	the 	products 	are 	non-homogeneous
substitutes, 	it 	will 	still 	be 	true 	that 	the 	equilibrium
price 	of 	the 	domestic 	product 	will 	not 	be 	reduced 	unless 	the
supply of 	the 	imports 	is 	increased 	as 	a 	result 	of 	the
alleged 	SUbsidy. 	In 	this 	case, 	the 	domestic 	industry 	can be
injured 	only 	if 	the 	price 	of 	the 	imported 	product 	declines,
which 	in 	turn 	reduces 	the 	demand 	for 	the 	domestically
produced 	good. 	However, 	the 	price 	of 	imports 	will 	fall 	only
if 	the 	supply 	of 	imports 	is 	increased.
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Canadian 	stumpage 	fee 	systems 	is 	the 	same 	as 	it 	would 	be 	if 	a
competitive 	auction 	system 	like 	that 	used 	by 	the 	United 	States
Forest 	Service 	("USFS") 	were 	employed. 27
Although 	the 	price 	charged 	for 	the 	right 	to 	harvest 	a 	tract
of 	forest 	land 	is 	lower 	under 	the 	Canadian 	stumpage 	fee 	systems,
a 	Canadian 	logger's 	ability 	to 	harvest 	more 	land 	is 	limited 	by
the 	supply 	made 	available 	by 	the 	Canadian 	governments. 	When 	the
amount 	of 	land 	made 	available 	by 	the 	Canadian 	governments 	is
determined 	without 	regard 	to 	price, 	the 	number 	of 	trees 	cut 	is
independent 	of 	the 	price 	paid 	for 	public 	timberland. 	A price
lower 	than 	market 	value 	will 	not 	result 	in 	additional 	harvesting
because 	of 	the 	governmental 	limitations 	on 	the 	supply 	of 	timber
land 	made 	available.
If 	the 	national 	and 	provincial 	governments 	of 	Canada 	were
willing 	to 	make 	as 	much 	land 	available 	for 	cutting 	at 	a 	constant
price 	as 	logging 	companies 	wanted 	to harvest, 	then 	lower 	stumpage
fees 	would 	lead 	to 	additional 	harvesting. 	The 	Canadian
governments, 	however, 	determine 	the 	amount 	of 	land 	to 	be
harvested 	and 	then 	use 	the 	Canadian 	stumpage 	fee 	systems 	to
allocate 	the 	land 	and 	to 	collect 	stumpage 	fees. 28 	This
governmental 	limitation 	on 	the 	available 	land 	for 	timber
27 	For 	reasons 	discussed 	in 	more 	detail 	in 	footnote 	31 	below,
the 	quantity 	of 	logs 	harvested 	in 	Canada 	might 	increase 	if
the 	Canadian 	governments 	were 	to 	adopt 	a 	system 	closer 	to
that 	used 	by 	the 	USFS.
28 	If 	the 	Canadian 	loggers 	could 	get 	as 	much 	timber 	land 	as
they 	desired 	at 	a 	constant 	price, 	they 	would 	not 	be 	willing
to 	purchase 	other 	timber 	at 	prices 	that 	exceed 	the
government 	rate. 	However, 	petitioners 	cite 	evidence 	that
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harvesting 	is 	not 	unlike 	the 	process 	in 	the 	United 	States. 29
Here 	the 	USFS 	determines 	what 	land 	should 	be 	cut 	and 	then 	holds
competitive 	auctions 	to 	allocate 	the 	stumpage 	rights 	and 	to
determine 	the 	stumpage 	fees.30 	Under 	either 	system, 	because 	the
-----,-----
28 	(foo tno te 	con t i nued)
Canadian 	mills 	located 	in 	Quebec 	purchase 	stumpage 	in 	Maine
for 	sev.eral 	times 	the 	price 	of 	government 	stumpage 	in
Quebec. 	Simi larly 	they 	cite 	clairm 	that 	stumpage 	on 	private
lands 	in 	British 	Columbia 	sells 	for 	considerably 	more 	than
the 	price 	of 	provincial 	stumpage. 	See 	Petition, 	at 	63-65.
Further, 	it 	appears 	that 	from an 	ecOiiOmic 	vantage 	point, 	the
Canadian 	governmen ts 	have 	allocated 	too 	Ii t tIe, 	ra ther 	than
too 	much, 	of 	Canada's 	virgin 	forests 	for 	harvesting. 	See
Western 	Transition 	(Economic 	Council 	on Canada, 	1984),-at"
48-51 	(hereinafter ."Western Transition"). 	.
29 	As 	Ken 	Drushka 	states 	in 	chapter 	5 	of 	his 	book 	Stumped,
which 	is 	included 	as 	Exhibit 	8 	of 	the 	Petition, 	"our 	forests
both 	in 	B.C. 	and 	the 	U.S. 	are 	administered 	by 	the 	name 	of
'even-flow sustained 	yield.'" 	(As 	quoted 	in 	the
Congress ional 	Record 	(October 	10, 	1985), 	p. 	S13031, 	column
2). 	"Sustained 	yield 	policies 	further 	compromise 	the 	free
market. 	Restricting 	yearly 	harvests 	to 	an 	allowable 	cut 	in
a 	particular 	sustained 	yield 	unit 	means 	that 	there 	is 	a
point 	above 	which 	the 	supply 	cannot 	be 	increased 	no 	matter
what 	price 	buyers 	are 	willing 	to 	pay." 	Id. 	See 	also
Western 	Transition, 	at 	47-49. 	- 	--
30 	We 	do 	not 	address 	the 	issue 	or 	how 	the 	United 	States 	or 	the
C ana d ian 	go vern me n t s 	d e term i net h e 	qua n tit Y 0 f 	t i rm e ria nd
to 	make 	available 	for 	harvesting. 	Of 	course, 	Canadian
government 	decis ions 	concerning 	the quantity 	of 	tirmer 	to 	be
cut 	can 	affect 	the 	price 	of 	lumber 	imported 	from 	Canada 	and
therefore 	the well-being 	of 	the Uni ted 	States 	lumber
industry. 	However, 	as 	we 	understand 	peti tioners'
allegations, 	they 	are 	claiming 	that 	the 	subsidy 	arises 	only
because 	the 	Canadians 	do 	not 	hold 	a 	competitive 	auction 	or
otherwise 	charge 	a 	competitively-determined 	price 	for 	the
right 	to 	cut 	the 	land 	that 	they 	have 	decided 	to 	make
avai lable. 	The 	peti tion 	does 	not 	argue 	that 	the Canadians
subsidize 	their 	lumber 	industry 	by 	the 	quantity 	of 	land 	they
make 	avai lable 	for 	harvest ing.
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land 	to 	be 	harvested 	is 	determined 	by 	an 	administrative 	process,
the 	quantity 	will 	not 	vary.with 	the 	system used 	to 	allocate 	the
lands 	to 	specific 	purchasers 	or 	with 	the 	price 	paid 	under 	that
system. 3 1 	All 	of 	the 	land 	made 	available 	will 	be 	harvested 	under
-------,--
31 	Indeed, 	there 	are 	three 	reasons 	for 	believing 	that 	the
Canadian 	stumpage 	fee 	systems 	may 	actually 	lead 	to 	fewer
logs 	being 	harvested 	and 	less 	lumber 	being 	exported 	to 	the
United 	States 	than 	would 	be 	the 	case 	if 	the Canadians 	used
the 	competitive 	auction 	system employed 	in 	the 	United
States. 	First, 	with 	some 	versions 	of 	the 	Canadian 	stumpage
fee 	systems, 	the 	government 	establishes 	a 	fixed 	fee 	for
harvesting 	a 	tract 	rather 	than 	having a 	fee 	that 	depends 	on
the 	cos t s 	0 f 	ha r v est i ng 	the 	t r act 	and 	the qua 1i t Y 0 f 	the
timber 	there. 	In 	such 	a 	case 	the 	government 	may 	set 	the
stumpage 	fee 	to 0 	high 	and 	illl'o se 	a 	fi xed 	fee 	t ha t 	exc eed s
the 	profit 	that 	could 	be 	earned 	by 	harvesting 	the 	tract.
Such 	tracts 	wi 11 	not 	be 	cut 	but 	wi 11 	remain 	standing. 	Wi th
a 	competitive 	auction 	system, 	on 	the 	other 	hand, 	some 	firm
would 	enter 	a 	bid 	which 	was 	lower 	than 	the 	fee 	required
under 	the Canadian 	system 	but 	which 	would 	make 	harvesting
that 	tract 	profi table. 	Thus, 	under 	a 	competit ive 	auct ion
s y stem, 	the 	t rae t 	wo u I d 	be 	cut.
Second, 	Canadian 	stumpage 	fee 	systems 	may 	be 	more 	likely
than 	an 	auction 	to 	allocate 	harvesting 	rights 	to 	inefficient
firms. 	It may 	not 	be 	profitable 	for 	the 	firm 	with 	the
harvesting 	rights 	to 	cut 	a 	tract, 	although 	a 	more 	efficient
firm would 	find 	harvesting 	profitable. 	Again, 	this 	can
result 	in 	fewer 	trees 	sent 	to 	market.
Finally, 	the 	analysis 	up 	to 	this 	point 	has 	i/11>licitly
assumed 	that 	the 	tee 	for 	logging 	a 	tract 	of 	timberland 	is
determined 	before 	the 	tirmer 	is 	cut 	and 	does 	not 	depend 	on
the 	quantity 	of 	timber 	actually 	removed 	from 	the 	tract.
(The 	payment would, 	of 	course, 	depend 	on 	an 	estimate 	of 	the
quantity 	and 	value 	of 	the 	timber 	on 	the 	tract). 	However,
this 	does 	not 	appear 	to 	be 	true, 	at 	least 	as 	regards 	tinber
harvested 	from 	land 	owned 	by 	the 	British 	Columbia 	provincial
government. 	In 	a 	manner 	methodologically 	simi lar 	to 	the
United 	States 	system, 	British 	Columbia 	determines 	the
appraised 	value 	of 	a 	tract. 	However, 	instead 	of 	collecting
the 	appraised 	value 	in 	a 	lump 	sum amount, 	British 	Columbia
charges 	loggers 	the 	average 	appraised 	value 	of 	stumpage 	for
each 	species 	on 	the 	tract 	on 	a 	per-log 	basis. 	That 	is, 	the
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either 	system. 32 	Thus, 	the 	total 	quantity 	of 	logs 	going 	to
market 	in 	any 	period 	is 	unaffected 	by 	the 	stumpage 	fee 	system
employed.
31 	(footnote 	continued)
total 	appraised 	stumpage 	value 	is 	divided 	by 	the 	quantity 	of
timber 	on 	the 	tract, 	and 	the 	logger 	pays 	this 	average 	fee
for 	each 	unit 	of 	timber 	removed. 	As 	a 	result, 	some 	trees
for 	which 	the 	price 	of 	the 	logs 	would 	exceed 	the 	costs 	of
cutting 	and 	hauling, 	and 	which 	therefore 	would 	be 	cut 	under
-a 	lump 	sum 	scheme, 	will 	not 	be 	cut 	if 	the 	average 	appraised
value 	is 	greater 	than 	the 	di tterence between 	the 	log 	price
and 	the 	cutting 	and 	hauling 	costs. 	See 	Western 	Transition,
at 	55. 	We 	note, 	however, 	that 	the 	magnitude 	of 	this 	effect
would 	be 	limited 	by 	requirements 	that 	loggers 	cut 	a 	certain
percentage 	of 	the 	allo'Mlble 	cut 	in 	any 	year 	and 	within 	any
five 	year 	period. 	(Similar 	problems 	may 	exist 	with 	the
versions 	of 	the Canadian 	stumpage 	fee 	systems 	employed 	in
the 	other 	provinces 	where 	a 	fixed 	fee 	is 	charged 	per 	unit 	of
timber 	if 	this 	fixed 	fee 	is 	levied 	on 	timber 	actually
removed 	from 	the 	forest 	rather 	than 	on 	an 	estimate 	of 	the
quantity 	of 	timber 	present 	in 	the 	tract. 	Based 	on
petitioners' 	description 	of 	the 	stumpage 	fee 	systems 	in
Ontario, 	Quebec, 	and 	Alberta, 	the 	quantity 	to 	which 	the
fixed 	fee 	is 	applied 	is 	not 	clear. 	However, 	it 	appears 	that
it 	may 	well 	be 	on 	the basis 	of 	timber 	actually 	removed 	from
the 	for est. 	See 	Pe tit ion, 	a t 	45 - 48 ) •
We 	also 	note 	that 	the USFS 	establishes 	a 	minimum 	price 	in
the 	bidding 	for 	Unit~d States 	lands. 	Establishing 	such 	a
minimum 	price 	may 	mean 	that 	the 	harvesting 	rights 	to 	some
tracts 	are 	not 	a'Mlrded 	if 	none 	of 	the 	bids 	is 	high 	enough.
The 	purpose 	of 	the 	minimum 	price, 	however, 	appears 	to 	be 	to
insure 	that 	the 	government 	receives 	the 	value 	of 	the 	timber
being 	auctioned 	and 	not 	to 	limit 	the 	quantity 	of 	timber
auctioned. 	If 	the 	minimum 	bid 	values 	are 	set 	correctly,
there 	would 	always 	be 	bids 	that 	meet 	the 	minimum and 	all 	the
land 	made 	avai labl e 	would 	be 	harvested. 	I f 	the 	USFS
systematically 	overstated 	the 	value 	of 	timberlands, 	the
quantity 	of 	land 	harvested 	could 	be 	reduced. 	Such 	a
situation would 	represent 	a 	distortion 	in 	the United 	States
system.
32 	In 	order 	for 	this 	to 	be 	strictly 	true, 	it 	is 	necessary 	that,
in 	addition 	to 	avoiding 	the 	problems 	discussed 	in 	footnote
31, 	the 	revenue 	that 	can 	be 	real i zed 	by 	selli ng 	the 	logs 	on
any 	tract 	must 	be 	greater 	than 	the 	costs 	of 	building any
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C. 	The 	Effect 	of 	the 	Low 	Stumpage
Fee 	Is 	Merely 	To 	Increase 	the
Profits 	of 	Canadian 	Loggers.
If 	the 	low 	stumpage 	fee 	does 	not 	influence 	the 	quantity 	of
10g8 	produc~d, what 	effects 	does 	it have? 	The 	answer 	is 	that 	it
merely 	reduces 	the 	total 	costs 	and 	increases 	the 	profits 	of
Canadian 	loggers. 	Economic 	theory 	suggests 	that 	Canadian
loggers, 	like 	their 	United 	States 	counterparts, 	seek 	to 	maximize
their 	profits. 	Therefore, 	the 	prices 	that 	they 	charge 	for 	logs
are 	determined 	not 	by 	what 	the 	logs 	cost 	to 	cut 	but, 	given 	a
fixed 	quantity 	of 	logs, 	by 	the 	demand 	for 	logs. 	The 	mere 	fact
that 	loggers 	are 	permitted 	to harvest 	a 	tract 	of 	timber 	land 	at
an 	advantageous 	price 	does 	not 	affect 	the 	market 	price 	at 	which
those 	logs 	are 	later 	resold. 33
32 	(footnote 	continued)
roads 	needed 	to 	gain 	access 	to 	the 	timber, 	the 	costs 	of
actually 	cutting 	the 	trees, 	the 	costs 	of 	transporting 	the
logs 	to 	market, 	and 	the 	cost 	of 	reforesting 	the 	area, 	if
that 	is 	part 	of 	the 	obligation 	of 	the 	logging 	firm. 	If, 	for
some 	tracts 	made 	available 	by 	the 	government, 	the 	costs 	of
logging 	exceed 	the 	revenues 	that 	can 	be 	earned 	by 	selling
the 	timber 	on 	the 	tract, 	these 	tracts 	will 	not 	be harvested
under 	either 	a 	competitive 	auction 	or 	under 	the 	Canadian
stumpage 	fee 	system. 	(For 	a 	discussion 	of 	the 	more 	general
case 	where 	some 	tracts 	will 	not 	be 	cut, 	see 	the 	1983 	FTC
brief 	in 	the 	Appendix). 	While 	all 	tracts 	may 	not 	be 	cut 	in
this 	more 	general 	case, 	it 	is 	still 	true 	that 	there 	are 	no
tracts 	that 	would 	be 	cut 	under 	the 	Canadian 	stumpage 	systems
that 	would 	not 	be 	cut 	under 	a 	competitive 	auction 	system.
33 	The 	price 	also 	would 	not 	be 	affected 	when 	a 	vertically
integrated 	firm 	uses 	a 	log 	it has 	harvested 	because 	the 	firm
would 	incur 	an 	opportunity 	cost 	equal 	to 	the 	price 	it 	would
have 	received 	if 	it 	sold 	the 	log 	to 	another 	sawmill. 	See
page 	10 	of 	the 	Appendix 	to 	the 	1983 	FTC 	brief. 	It 	would 	not
make 	sense 	for 	the 	firm 	to 	put 	a 	log 	to 	an 	inefficient
internal 	use 	when 	it 	could 	sell 	the 	log 	for 	a 	greater 	amount
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In 	effect, 	Canadian 	logging 	firms 	are 	permitted 	to 	realize
part 	of 	the 	economic 	rents 	resulting 	from 	the 	governmental 	limits
on 	the 	quantity 	of 	trees 	available 	for 	harvesting 	in 	any 	period
of 	time. 34 	If 	the 	harvesting 	rights 	were 	sold 	under 	a
competitive 	auction, 	these 	rents 	would 	go 	to 	the 	government 	in
the 	form 	of 	increased 	stumpage 	fee 	payments. 	Thus, 	the 	Canadian
stumpage 	fee 	systems 	reduce 	the 	payments 	received 	by 	the
government 	for 	stumpage 	sales 	and 	increase 	the 	profits 	of 	the
firms 	doing 	the 	harvesting.
33 	(footnote 	continued)
on 	the 	open 	market. 	The 	sawmill's 	production 	of 	lumber 	will
be 	the 	same 	as 	if 	it 	was 	purchasing 	all 	of 	its 	logs 	from
independent 	logging 	firms. 	The 	ITC 	made 	a 	similar
observation 	in 	its 	report 	Conditions 	Relating 	to 	the
Importation 	of 	Softwood 	Lumber 	into 	the 	United 	States, 	USITC
Publication 	1765, 	October 	1985, 	at 	80.
34 	The 	payment 	to 	the 	government 	is 	an 	economic 	rent, 	and 	not 	a
cost, 	because 	the 	availability 	of 	the 	land 	for 	harvesting
does 	not 	depend 	on 	the 	price 	received 	by 	the 	government. 	By
contrast, 	the 	price 	that 	the 	logger 	must 	pay 	for 	gasoline 	is
a 	cost 	because 	if 	the 	price 	is 	not 	paid 	the 	gasoline 	will
not 	be 	made 	available 	for 	harvesting 	timber. 	(For 	a 	further
discussion 	of 	why 	the 	payment 	for 	harvesting 	rights 	is 	a
rent 	and 	not 	a 	cost, 	see 	the 	1983 	FTC 	brief 	in 	the
appendix.) 	The 	total 	economic 	rent 	reSUlting 	from 	the
harvesting 	of 	a 	tract 	of 	timberland 	is 	the 	difference
between 	the 	price 	for 	which 	the 	logs 	on 	the 	tract 	can be
sold 	and 	the 	cost, 	not 	including 	a 	payment 	to 	the
government, 	incurred 	in harvesting 	the 	logs 	and 	transporting
them 	to 	market. 	This 	rent 	is 	the 	maximum 	a 	logger 	would 	pay
for 	the 	right 	to harvest 	a 	tract 	of 	timber. 	In 	a
competitive 	auction 	system, 	such 	as 	that 	in 	the 	United
States, 	this 	rent 	would 	accrue 	to 	the 	government. 	If 	the
stumpage 	fee 	systems 	in 	Canada 	result 	in 	payments 	less 	than
those 	generated by 	an 	auction, 	a 	portion 	of 	the 	rent 	would
be 	captured 	by 	the 	logging 	firms.
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The 	petition 	itself 	contains 	information 	suggesting 	that 	the
low 	stwnpage 	fees 	are 	resulting 	in 	high 	profits 	for 	the 	Canadian
logging 	firms 	rather 	than 	in 	an 	increase 	in 	the 	quantity 	of 	logs
harvested 	or 	in 	a 	decline 	in 	the 	price 	ot 	logs. 	Petitioners
report 	that 	tirms 	located 	in 	Quebec 	are 	purchasing Maine 	stumpage
rights 	at 	an 	average 	price 	o( 	$60.33 	per 	thousand 	board 	feet 	at
the 	same 	time 	that 	the 	charge 	for 	harvesting 	tirmer 	located 	on
government 	lands 	in Quebec 	was 	only 	$11.96 	per 	thousand 	board
feet. 35 	Similarly, 	the 	petitioners 	also 	refer 	to 	considerably
higher 	prices 	being 	paid 	for 	timber 	on 	private 	lands 	in 	British
Colwnbia 	than 	is 	paid 	tor 	stumpage 	on 	pl1>li c 	lands. 36 	A profi t-
maximizing 	firm 	would 	only 	buy 	stwnpage 	fran 	private 	lands 	or
from 	the 	United 	States 	at 	prices 	that 	exceed 	those 	charged 	under
the Canadian 	stwnpage 	fee 	systems 	if 	it 	cannot 	obtain 	additional
tirmer 	at 	the 	lower 	price 	charged 	for 	harvest ing 	tirmer 	on
government 	land 	and 	i ( 	the 	prices 	(or 	which 	the 	more 	costly 	logs
can be 	sold 	are 	sufficient 	to 	cover 	their 	costs. 	That 	Canadian
firms 	do purchase 	these 	logs 	is 	evidence 	that 	the 	prices 	charged
under 	the 	Canadian 	stumpage 	fee 	systems 	are 	well 	below market
prices; 	that 	the 	Canadian 	governments 	do 	not 	capture 	all 	of 	the
economic 	rents 	in 	the 	sale 	of 	stumpage 	rights; 	and, 	hence, 	that
the 	rents 	not 	captured 	by 	the 	stwnpage 	(ees must 	be 	appearing as
increased 	profits 	for 	those 	firms 	given 	access 	to 	government
for est 	1a nd •
35 	See 	Petition, 	at 	63-64.
36 	See 	Petition, 	at 	65-66 	and 	exhibits 	26 	and 	27.
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D. 	The 	High 	Profits 	Earned 	by 	Canadian 	Loggers
Do 	Not 	Have 	the 	Same 	Injurious 	Effects 	as
the 	Grant 	of 	a 	SUbsidy.
The 	high 	profits 	earned by 	Canadian 	loggers 	are 	not, 	in
their 	effect 	on 	the 	United 	States 	industry, 	the 	same 	thing 	as 	a
subsidy 	on 	either 	finished 	lumber 	or 	on 	logs 	harvested. 	The
profits 	here 	are 	different 	from 	a 	sUbsidy 	because, 	standing
alone, 	they 	will 	have 	no 	tendency 	to 	increase 	output 	to 	the
detriment 	of 	the 	domestic 	industry.
First, 	the 	high 	profits 	do 	not 	have 	the 	same 	effect 	on
production 	that 	a 	subsidy 	on 	finished 	lumber 	would 	have.
Economic 	theory 	suggests 	that 	the 	supracompetitive 	profit 	is
entirely 	captured 	at 	the 	logging 	stage, 	and 	so 	will 	have 	no
tendency 	to 	increase 	output 	in 	lumber 	production 	or 	other
downstream 	stages 	of 	the 	industry. 	In 	other 	words, 	because 	the
quantity 	of 	logs 	being harvested 	is 	not 	affected 	by 	the 	Canadian
stumpage 	fee 	systems, 	the 	price 	of 	logs 	is 	not 	affected. 	That
the 	quantity 	of 	logs 	is 	the 	same 	under 	either 	an 	auction 	system
or 	the 	Canadian 	stumpage 	systems 	means 	that 	the 	quantity 	of
lumber 	produced 	from 	those 	logs 	will 	be 	unchanged. 	This 	in 	turn
means 	that 	the 	price 	realized 	for 	that 	lumber 	is 	unchanged. 	The
price 	and 	quantity 	of 	lumber 	produced 	in 	Canada 	are 	the 	same 	as
if 	the 	Canadians 	employed 	a 	competitive 	auction 	system 	to
allocate 	stumpage 	rights 	and 	determine 	the 	price 	to 	be 	paid 	for
the 	right 	to 	cut 	that 	stumpage.
Because 	'the 	price 	and 	quantity 	of 	lumber 	are 	not 	affected 	by
the 	stumpage 	fee 	systems, 	the 	quantity 	of 	lumber 	Canadian 	firms
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will 	choose 	to 	export 	to 	the 	United 	States 	will 	not 	be 	altered 	by
the 	system. 	The 	choice 	between 	selling 	for 	export 	and 	selling
for 	use 	within 	Canada 	will 	depend 	on 	the 	prices 	that 	can be
obtained by 	selling 	in 	each 	country: 	and 	these 	in 	turn 	will
depend 	on 	the 	demand 	for 	and 	supply 	of 	lumber 	in 	each 	country.
Because 	the 	demand 	for 	and 	supply 	of 	lumber 	in 	each 	country 	is
unrelated 	to 	the 	stumpage 	fee 	system 	employed 	in 	Canada, 	the
quantity 	of 	lumber 	imported 	into 	the 	United 	States 	is 	not
increased because 	the 	Canadian 	governments 	do 	not 	employ a
competitive 	auction 	to 	determine 	the 	price 	of 	stumpage 	rights.
Similarly, 	the 	supracompetitive 	profit 	to 	loggers 	does 	not
have 	the 	same 	effects 	as 	a 	sUbsidy 	given 	on 	logs 	cut. 	Tne 	profit
brings 	no 	new 	timberland 	into 	production 	and 	does 	not 	increase
Canadian 	exports 	to 	the 	detriment 	of 	our 	domestic 	industry.
Petitioners 	claim, 	at 	page 	24 	of 	the 	petition, 	that 	the
Canadian 	stumpage 	systems 	are 	no 	different 	from 	a 	system 	in 	which
a 	competitive 	price 	is 	charged 	for 	stumpage 	and 	then 	a 	sUbsidy 	of
so 	much 	per 	log 	harvested 	is 	granted. 	It 	is 	therefore 	useful 	to
consider 	how 	the 	two 	practices 	are 	in 	fact 	different.
In 	order 	to 	analyze 	this 	contention, 	it 	is 	useful 	to 	explore
a 	slightly more 	complicated hypothetical 	situation. 	Up 	to 	now,
we 	have 	assumed 	that 	all 	tracts 	of 	lumber 	offered 	by 	the
government 	are 	logged. 	That 	is, 	we have 	assumed 	that 	the 	revenue
that 	can be 	received 	for 	the 	logs 	on 	each 	tract 	is 	greater 	than
the 	costs 	of 	harvesting 	those 	logs 	-- 	not 	including 	any 	economic
rent 	paid 	to 	the 	government. 	However, 	some 	tracts 	made 	available
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by 	the 	government 	may be 	unprofitable 	because, 	for 	example, 	of
location 	or 	accessibility. 	These 	tracts 	would 	remain 	unharvested
under 	either 	a 	competitive 	auction 	system or 	the 	Canadian
stumpage 	fee 	systems.
If 	the 	government 	offered 	a 	payment 	for 	each 	log 	harvested,
however, 	it 	might 	be 	profitable 	to 	harvest 	some 	tracts 	for 	which
harvesting 	would 	not 	otherwise 	be 	profitable, 	because 	the
revenues 	from 	selling 	the 	timber 	plus 	the 	payment 	from 	the
government 	would 	exceed 	the 	cost 	of 	cutting. 	If 	there 	are 	tracts
that 	are 	profitable 	to 	cut 	with 	the 	government 	payment 	but 	that
are 	not 	profitable 	to 	cut 	without 	that 	payment, 	then 	payment 	of
the 	per 	unit 	sUbsidy 	will 	increase 	the 	quantity 	of 	trees 	cut 	and
reduce 	the 	price 	of 	logs. 	This, 	in 	turn, 	will 	lead 	to 	a 	larger
quantity 	of 	lumber 	produced 	and 	a 	lower 	price 	and 	to 	a 	larger
quantity 	of 	lumber 	being 	exported 	to 	the 	United 	States. 	As 	a
result, 	the 	United 	States 	lumber 	industry 	could 	be 	injured.
Thus, 	payment 	of 	a 	per 	unit 	subsidy 	could 	cause 	injury 	to 	a
United 	States 	industry 	because 	such 	payments 	could 	increase 	the
quantity 	of 	imports 	into 	the 	United 	States. 	This, 	however, 	is
not 	at 	all 	the 	same 	thing 	as 	the 	Canadian 	stumpage 	fee 	systems
because 	those 	systems 	do 	not 	increase 	the 	quantity 	of 	logs
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harvested 	and 	therefore 	cannot 	result 	in 	injury 	to 	the 	United
States 	industry.37
E. 	Conclusion: 	Canadian 	Stumpage 	Fee 	Systems 	Do
Not 	Injure 	the 	United 	States 	Lumber 	Industry.
In 	conclusion, 	based 	on 	our 	understanding 	of 	the 	Canadian
stumpage 	fee 	systems, 	it 	does 	not 	appear 	that 	the 	United 	States
logging 	or 	lumber 	industries 	are 	injured 	by 	reason 	of 	the 	methods
by 	which 	the 	Canadian 	national 	and 	provincial 	governments
allocate 	the 	timber 	land 	they have 	administratively-determined
should be harvested 	or 	by 	the 	fees 	they 	charge 	for 	the 	right 	to
harvest 	these 	lands. 38 	Injury 	could 	occur 	only 	if 	the 	Canadian
37 	There 	is 	another 	difference 	between 	the 	current 	Canadian
stumpage 	fee 	systems 	and 	a 	competitive 	auction 	combined 	with
a 	per 	unit 	subsidy. 	If 	it 	is 	known 	that 	the 	subsidy 	will 	be
paid 	before 	the 	auction 	is 	held, 	this 	will 	cause 	the
competitive 	bids 	to 	be 	increasea 	to 	reflect 	the 	value 	of 	the
promised 	SUbsidy. 	As 	a 	result, 	the 	logging 	firms 	will 	not
earn 	any 	above 	normal 	profits 	as 	a 	result 	of 	the 	subsidy.
Unlike 	the 	current 	Canadian 	system, 	the 	approach 	that
petitioners 	suggest 	is 	analogous 	would 	not 	transfer 	any
economic 	rents 	to 	the 	logging 	firms. 	Rather, 	all 	rents
would 	be 	captured by 	the 	government, 	just 	as 	if 	a
competitive 	auction 	were 	held 	without 	a 	SUbsidy.
38 	We 	assume 	that 	the 	comparison between 	the 	Canadian 	stumpage
fee 	systems 	and 	a 	competitive 	auction 	is 	the 	only 	relevant
comparison 	for 	purposes 	of 	determining 	whether 	the 	alleged
subsidy 	injures 	the 	domestic 	industry. 	This 	assumption
seems 	consistent 	with 	the 	petitioners' 	complaints.
The 	Canadian 	stumpage 	fee 	systems 	could 	lead 	to 	an 	increase
in 	the 	quantity 	of 	timber 	harvested 	if 	the 	timber 	companies
successfully 	lobbied 	the 	Canadian 	federal 	or 	provincial
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stumpage 	fee 	systems 	resulted 	in 	a 	greater 	quantity 	of 	logs 	being
cut 	than 	would 	be 	cut 	under 	an 	auction 	system. 	However, 	this
does 	not 	appear 	to 	be 	the 	case. 	Based 	on 	the 	analysis 	of 	FTC
staff, 	we 	conclude 	that 	the 	Canadian 	stumpage 	fee 	systems 	result
in 	the 	same 	level 	of 	cutting 	as 	would 	a 	competitive 	auction
38 	(footnote 	continued)
governments 	to 	expand 	the 	quantity 	of 	cutting 	permitted
because 	of 	the 	increased 	economic 	rents 	they 	would 	earn 	by
cutting 	additional 	trees 	at 	the 	low 	stumpage 	fee.
At 	least 	one 	of 	the 	petitioners' 	exhibits 	suggests 	that 	this
kind 	of 	behavior 	has 	occurred 	in 	the 	past. 	According 	to
Peter 	Griffiths, 	Equity, 	April 	1984: 	"[M]any 	mills
overbuilt 	their 	capacity 	in 	relation 	to 	the 	actual 	timber
supply, 	as 	a 	means 	of 	consolidating 	their 	domination 	of 	the
resource. 	The 	British 	Columbia 	Forest 	Service 	was 	forced 	to
exceed 	allowable 	cuts 	under 	pressure 	from 	politicians 	afraid
of 	mill 	closures 	and 	lost 	jobs 	in 	their 	constituencies."
(Petition, 	exhibit 	12). 	This 	statement, 	if 	true, 	could
imply 	that 	the 	low 	stumpage 	fees 	have, 	at 	least 	in 	the 	past,
resulted 	in 	an 	increase 	in 	the 	quantity 	of 	timber
harvested. 	Such 	behavior 	would 	not 	be 	profitable 	under 	a
competitive 	auction 	system 	where 	loggers 	only 	earn 	a 	normal
profit 	level. 	Evidence 	that 	sawmill 	capacity 	is 	being
expanded beyond 	the 	level 	necessary 	to 	process 	current
allowable 	cuts 	in 	order 	to 	convince 	Canadian 	federal 	or
provincial 	governments 	to 	expand 	the 	allowable 	cut 	could
suggest 	that 	the 	low 	stumpage 	fee 	charged by 	the 	Canadians
could be 	injuring 	the 	United 	States 	timber 	industry.
In 	evaluating 	claims 	of 	this 	kind 	of 	"rent 	seeking"
behavior, 	it 	is 	important 	to 	differentiate 	between 	building
new 	capacity 	to 	justify 	expansions 	in 	cutting 	and 	urging
that 	cutting 	levels 	be 	maintained 	so 	as 	to 	utilize 	existing
capacity 	and 	to 	avoid 	unemployment. 	While 	the 	former
behavior 	is 	only 	rational 	when 	the 	firm 	can 	obtain 	economic
rents 	by 	cutting 	timber, 	the 	latter 	is 	rational 	even 	if 	no
return 	above 	a 	normal 	profit 	is 	earned 	by harvesting 	timber.
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system.39 	As 	a 	result, 	the 	quantity 	of 	lumber 	imported 	into 	the
United 	States 	is 	unaffected 	by 	use 	of 	the 	Canadian 	systems 	and
the 	domestic 	lumber 	and 	logging 	industries 	are 	not 	injured 	by 	the
alleged 	subs i dy.
39 	Petitioners 	briefly 	allude 	to 	a 	requirement 	that 	logging
concerns 	operating 	under 	certain 	versions 	of 	the Canadian
stumpage 	fee 	systems 	cut 	a 	minimum 	quantity 	of 	timber 	each
year 	and 	within 	each 	five 	year 	period 	or 	lose 	the 	right 	to
future 	harvesting 	rights. 	(See 	Petition, 	at 	44). 	If, 	in
order 	to 	main tain 	future 	rights 	that 	a re 	expected 	to 	be
profi table, 	this 	requi remen t 	is 	leading 	logging 	fi rms 	at
present 	to 	harvest 	trees 	where 	the 	revenue 	received 	from
sales 	is 	less 	than 	the 	costs 	of 	cutting 	the 	timber 	-- 	not
including 	any 	payment 	that 	must 	be 	made 	to 	the Canadian
governmen t 	-- 	this 	aspec t 	of 	the Canadian 	stumpage 	fee
systems 	could 	be 	resulting 	in 	injury 	to 	the 	lumber 	industry
in 	the United 	States. 	We 	have 	seen 	no 	evidence 	that 	such
uneconomic 	cutting 	is 	in 	fact 	occurring. 	However, 	the
International 	Trade 	Conmission 	may 	wish 	to 	further
investigate 	this 	aspect 	of 	the Canadian 	system.
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CONCLUS ION
For 	the 	reasons 	stated 	above, 	the 	ITC 	should 	conclude 	that
there 	is 	no 	injury 	to 	the 	domestic 	industry 	by 	reason 	of 	the
Canadian 	stumpage 	fee 	systems.
Respectfully 	submitted
0' n 	beh a 1 f 	of
the 	Fed era 1 T r a deC omm iss ion,
David 	T. 	Schefrman
Acting 	Director
Bureau 	of 	Economics
Richard 	S. 	Higgins
Deputy 	Director 	for
Regu I a to r y 	and
Industry 	Analysis
Bureau 	or 	Economi cs
Keith 	B. 	Anderson
Assistant 	Director 	(or
Regulatory 	Analys is
Bure au 	0 f 	Economi cs
John 	R. 	Woodbury
Deputy Assistant
Director 	for 	Regulatory
Analys is
Bureau 	or 	Economics
Amanda 	B. 	Pederson
Ac tin g 	Di r ec tor
Bure au 	0 r 	Consume r
Protection
J. 	Hows rd 	Be ale s
Acting Deputy
Director
Bu reau 	of 	Consume r
Protection
June 	12, 	1986
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Walter T. 	Winslow
Acting 	Director
Bu re au 	0 r 	Compe tit i 0
~ 	.~;:~
Edws rd 	F. 	Gl y:;: .fir.Assistant 	Director
( In te rna t i 0 na 1
Antitrust)
Bu re au 	0 f 	Campe tit ion
Steven 	B. 	Feirman
Attorney
Bureau 	ot 	Competition
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APPENDIX
Prehearing 	Brief by 	the 	Federal 	Trade 	Commission
before 	the 	International 	Trade 	Administration,
Department 	of 	Commerce,
Certain 	Softwood 	Lumber 	Products 	from 	Canada,
Countervailing 	Duty 	Proceeding,
April 	7, 	1983
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Before 	the
INTERNATIONAL TRADE ADMINISTRATION
DEPARTMENT OF 	COMMERCE
Washington, 	D.C.
In 	the 	Matter 	of 	)
)
CERTAIN 	SOFTWOOD 	LUMBER 	)
PH:>DUCTS 	FROM CANAM 	)
)
Countervailing Duty Proceeding 	)
PREREARING BRIEF
BY THE
FEDERAL TRAIE 	COMMISS ION
April 	7, 	1983
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In 	the 	matter 	of 	)
CERl'AIN 	SOFTl«:>OD 	LGtBER 	)
PRODUCTS 	FROM CANADA 	)
Countervailing 	Duty 	Proceeding 	)
)
)
PREHEARING BRIEF
BY THE
FEDERAL TRADE 	COMMISSION
The 	Federal 	Trade 	Commission 	(-FTC- 	or 	-the Commission ft )
submits 	this 	prehearing 	brief 	to 	assist 	the 	Department 	of
Commerce 	in 	making 	its 	final 	determination 	under 	19 	U.S.C.
S l67l(a) 	whether 	imports 	of 	softwood 	lumber 	products 	from 	Canada
benefit 	from 	a 	subsidy. 	The 	Commission's 	analysis 	supports 	the
Preliminary Determination 	of 	the 	Department 	of 	COlIIDerce 	that 	no
countervailable 	subsidy 	results 	from 	the 	methods 	used 	by Canadian
Federal 	and 	Provincial 	governments 	to 	set 	a 	price 	for 	stumpage
(standing 	timber 	tha~ may 	be 	harvested 	and 	processed 	into
lumber). 	As 	one 	of 	the 	federal 	agencies 	charged 	with 	promoting
competition 	and 	consumer 	welfare, 	the 	Federal 	Trade 	Commission
recognizes 	that 	unjustified 	imposition 	of 	countervailing 	duties
on Canadian 	lumber 	would 	raise 	costs 	to 	United 	States 	lumber
consumers 	and 	adversely 	affect 	other 	segments 	of 	the 	economy,
including 	the 	housing 	industry. 	Moreover, 	the 	theory 	of
subsidization 	presented 	by 	this 	petition 	raises 	significant 	legal
and 	economic questions 	that 	are 	related 	to 	the 	economic 	and
competition 	policy 	expertise 	of 	the 	Commission.
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TABLE 	OF 	CONTENTS
STATEMENT 	OF 	THE 	CASE 	AND 	SUMMARY
OF 	FTC ANAL YS IS •••••••••.••••••••••••••••••••••••••••••••••••••• 1
A. 	rntroduction 	1
B. 	Sale of 	Stumpage 	in 	the 	United 	States 	and 	Canada ••••••• 3
C. 	Summary 	of 	Petitioner's Argument ••••••••••••••••••••••• 6
D. 	Summary 	of 	Preliminary 	Determination ••••••••••••••••••• 8
E. 	Summary 	of 	FTC Analysis ••••••••••••••••••••••••••••••• 10
A. 	Canadian, 	not 	United 	States, 	Market-Determined 	Prices
for 	Stumpage 	Constitute 	the 	Appropriate 	Benchmark
against 	which 	to 	Assess 	the 	Existence 	and 	Magnitude
of 	the 	Claimed 	Subsidy •••••••••••••••••••••••••••••••• 32
B. 	Uncritical 	Reference 	to 	Unadjusted 	United 	States
Stumpage 	Prices 	is 	Invalid 	Because 	It 	Does 	Not
Account 	For 	the 	Principle 	of 	Comparative 	Advantage •••• 35
C. 	Use 	of 	United States Stumpage 	Prices As 	a 	Surrogate
for 	Canadian Market-Determined 	Prices 	Requires
Adjustments 	to 	be 	made Accounting 	for 	Differences
Both 	in 	the 	Relative 	Value 	of 	Stumpage 	and 	the 	Nature
of Stumpage Harvesting 	Rights Sold •••••••••••••••••••• 40
SECTION 	I I: 	THE 	ALLEGED 	FAILURE TO 	CHARGE 	THE 	FULL
MARKET 	PRI CE 	AS 	A STUMPAGE 	FEE 	DOES 	NOT
AFFECT 	THE PRICES 	EITHER OF 	LOGS 	SOLD
TO 	CANADIAN 	LUMBER MILLS 	OR OF 	LUMBER
IMPORl'ED 	INTO 	THE 	UNITED 	STATES 	AND 	IS
THEREFORE 	NOT 	A COUNTERVAlLABLE 	SUBSIDY •••••••••• 18
SECTION 	III. 	THE EVIDENCE 	AND 	ANALYSIS 	OFFERED TO
PROVE 	THE 	ALLEGED SUBS IDY ON 	STUMPAGE
ARE 	THEORETICALLY 	FLAWED 	AND 	UNPERSUAS IVE •••••••• 32
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SECTION 	I:
CONCLUSION
APPENDIX
THE 	COMMERCE 	DEPARTMENT SHOULD ANALYZE
WHETHER THE 	ALLEGED 	SUBSIDY PRODUCES 	AN
UNFAIR 	DISTORTION 	OF 	TRADE 	AND PROVIDES
AN 	UNFAIR COMPETITIVE ADVANTAGE 	TO
CANADIAN 	PRODUCERS ••••••••••••••••••••••••••••••• 12
• • • • • • • • • • • • . • • • • • • • • • • • • • • • • • • . • • • • • • • • • • • • 46
ANAL YS IS 	OF 	WHETHER ANY ALLEGED 	SUBS lOY TO
CANADIAN 	TREE 	HARVESTERS 	IS 	PASSED 	THROUGH
TO 	LUMBER PRODUCERS 	by DR. 	DAVID 	G. 	TARR
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STATEMENT 	OF 	THE 	CASE 	AND SUMMARY OF 	FTC ANALYS IS
A. 	Introduction.
This 	proceeding 	was 	initiated 	upon 	a 	petition 	by 	the 	"United
States Coalition For Fair Lumber 	Imports,"Y 	requesting 	the
Camnerce 	Department 	to 	impose 	a 	countervailing duty on 	imports 	of
certain Canadian 	softwood 	lumber 	products. Y 	Although 	the
Peti tion 	all eqed 	several 	subsidy 	programs, 	the 	stumpage 	feel!
subsidy 	asserted 	is 	by 	far 	the 	largest, 	estimated 	by 	Petitioner
to 	be 	$113.78 	per 	thousand 	board 	feet 	of 	imported Canadi an
softwood 	lumber 	or 	equivalent 	to 	61 	percent 	of 	the 	average 	unit
value 	of 	imports 	in 1980. 	Petition 	at 	97-98. 	Purportedly, 	the
subsidy 	results 	from 	an 	undercharge 	on 	sales 	of 	the 	right 	to
harvest 	government-owned 	stumpage, 	which 	is 	passed 	on 	to
~/ 	Petitioner 	represents 	a 	group of 	trade 	associations
representing 	u.s. 	lumber 	producers 	plus 	a 	large 	number 	of
individual 	companies. 	Petition, 	App. 	IA-IC.
Y 	If 	the Camnerce Department 	determines 	that lllDber 	imports 	are
subsidized, 	and 	if 	in 	a 	separate 	proceeding 	the 	International
Trade Commission 	determines 	that 	the 	producers 	of 	competitive
United States 	products 	are 	materially 	injured 	(or 	threatened
with material 	injury) 	by 	reason 	of 	the 	imports, 	then 	the
Camnerce Department 	would 	impose 	a 	countervailing 	duty 	in 	the
amount 	of 	the 	net 	SUbsidy. 	19 	U.S.C. 	S1671(a).
1/ 	The 	Preliminary Determination 	defines 	"stumpage" 	as 	standing
timber, 	48 	Fed. 	Reg. 	10,395, 	10,402 	(March 	11, 	1982); 	this
brief 	employs 	the 	same 	usage.
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purchasers 	of 	lumber •.Y 	In 	its 	prelimi nary determi nation, 	the
Department 	found 	that 	there 	is 	no 	countervailable 	subsidy. 	48
Fed. 	Reg. 	10395 	(March 	11, 	1983). 	The 	Federal 	Trade 	Commission
strongly 	endorses 	this 	conclusion.21
In 	this 	brief 	the 	Commission 	applies 	a 	competition 	and
economic 	analysis 	to 	the 	countervailing 	duty 	statute. 	In making
its 	comments, 	the 	Commission 	is 	fully 	aware 	of 	the 	importance 	of
softwood 	lumber 	imports 	from Canada 	and 	of 	the 	fact 	that 	the
Department's 	decision 	will 	have 	a 	practical, 	as 	well 	as 	legal,
impact. 	Petitioner's 	request 	for 	this 	duty, 	if 	granted, 	would
have 	a 	significant 	impact 	on segments 	of 	the 'national 	economy,Y
particularly 	the 	housing 	industry, 	which 	is 	a 	principal 	consumer
of 	lumber 	and 	which 	has 	been 	in 	a 	severe 	slump.1I 	In 	addition,
!I 	This 	brief 	refers 	to 	lumber 	as 	the 	critical 	product. 	To 	be
more 	precise, 	however, 	llJDber 	is 	only one, 	but 	commercially
the 	most 	important, 	of 	a 	group of 	softwood 	products 	that 	are
alleged 	to 	receive 	subsidies. 	This 	group 	of 	products 	is
fully 	described 	in "Scope 	of 	Investigations" 	section 	of 	the
Department's Preliminary Determination. 	48 	Fed. 	Reg. 	10,396.
if 	Given 	the 	magnitude 	of 	the 	alleged 	stumpage 	fee 	subsidy, 	this
brief 	focuses 	exclusively on 	this 	issue. 	The 	brief 	takes 	no
position with 	respect 	to 	the 	other 	alleged 	subsidies, 	which
the Department found 	to 	confer 	a 	de 	minimis 	0.32 	percent
benefit 	on 	imported 	lumber. 	-
if 	The 	International 	Trade Commission 	staff 	has 	estimated 	that,
from 	1979 	to 1981, 	the 	value 	of Canadian 	softwood 	lumber
imports 	averaged 	$2.0 	billion 	per 	year. 	Softwood 	Lumber 	from
Canada, 	No. 	701-TA-197 	(Prelim.) 	(Nov. 	1982) 	at A-16.
11 	David Stahl, 	Executive 	Vice 	President 	of 	the 	National
Association 	of Home 	Builders, 	testified 	at 	the 	ITC 	staff
conference 	in 	this 	proceeding 	that 	(1) 	the 	home 	building
industry 	is 	in 	a 	depression 	and 	(2) 	a 	tariff 	of 	65 	percent
"would 	probably 	raise 	the 	price 	of 	a 	typical 	single-family
home 	built 	in 	this 	country 	by about 	six 	and 	a 	half 	percent."
Tr. 	151-153.
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imposing 	a 	tariff 	based 	on 	the 	Petition's 	theory 	potentially
could 	have 	an 	adverse 	impact 	on Untted States 	exporters, 	who
themselves 	may 	be 	subjected 	to 	the 	application 	of 	countervailing
duties 	by 	foreign 	countries 	in 	analogous 	circumstances •.§!
B. 	Sale of 	Stumpage 	in 	the 	United 	States 	and Canada.
Petitioner's 	argument 	with 	respect 	to 	the 	alleged
subsidization 	through 	undercharges 	for 	stumpage 	derives 	from 	a
key 	distinction 	concerning 	the manner 	in which 	stumpage 	fees 	are
determined 	in 	the 	United States 	and 	in Canada.. 	In 	the 	United
States, 	stumpage 	fees 	are 	primarily 	established 	through 	an
auction, 	which 	sets 	the 	fee 	at 	the 	market 	price. 	In Canada,
st\Jllpage fees 	are 	determined 	administratively. 	Petitioner 	has
alleged 	that 	this 	process 	results 	in stumpage. 	fees 	being 	set 	at
below-mar ket 	prices.
When 	the 	O.S. 	Forest Service 	decides 	to 	sell 	the 	timber 	on 	a
parcel 	of 	land, 	it 	appraises 	the 	stumpage, 	taking 	into 	account
the 	quanti ty of 	recoverabl e 	WOOd7 	the 	var i ous 	speci es 	and 	the·
l/ 	The 	United 	States 	owns 	a significant 	portion 	of 	the 	nation's
resources. 	In 1977, 	the Federal Government 	owned 	32.6
percent 	of 	the 	total 	land 	area of 	the 	Uni ted States, 	wi th 	the
largest 	holdings 	in Alaska 	and Western 	states. 	U.S. 	Bureau
of 	the 	Census, 	Statistical 	Abstract 	of 	the 	United 	States:
1978 	237 	(99th 	ed. 	1978). 	Of 	the 	742 	million 	federally-owned
acres, 	482 	million 	acres 	(65 	percent) 	was 	used 	for 	forest 	and
wildlife 	purposes, 	and 165 	million 	acres 	(22 	percent) 	for
grazing. 	Id. 	at 	238. 	Substantial 	additional 	land was
devoted 	to-reclamation 	and 	irrigation 	projects, 	to 	power
development 	and 	distribution, 	and 	other 	economic 	uses. 	See
ide 	at 	240 	for 	a 	classification of 	mineral 	and 	other 	-
Teases. 	Thus, 	the methods 	for 	and 	impact 	of 	governmental
sales 	of 	resources 	to 	private 	enterprises 	could 	be 	subject 	to
scrutiny 	by foreign 	nations 	seeking 	to 	protect 	their 	own
domestic 	industries.
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value 	of 	each: 	and 	the 	estimated 	costs 	of 	harvesting 	the 	trees.
These 	costs vary 	with 	forest 	density, 	terrain, 	accessibility, 	and
other 	factors.1I 	In 	principle, 	the 	appraisal 	ascertains 	the
residual 	value 	of 	the 	timber 	(i.e., 	the 	value 	of 	end 	products
minus 	the 	costs 	of 	harvesting 	and 	producing 	those 	products) 	and
the 	process 	also 	allows 	for 	a 	normal 	profit. 1Q / 	The 	appraised
value, 	adjusted 	for 	certain 	road-construction 	costs, 	is 	the
minimum 	acceptable 	sales 	price 	for 	the 	rights 	to 	harvest 	the
timber. 	Actual 	U.S. 	sales 	prices 	for 	stumpage 	rights 	are 	then
determined 	in 	an 	oral 	auction 	or 	by 	sealed 	bid.JJ/
By 	contrast, 	Canadian 	stumpage 	fees 	are 	generally
established 	administratively 	rather 	than 	through 	a 	competitive
market 	process.JlI 	For 	example, 	in 	British Columbia, 	private
companies 	obtain 	long-term 	-tenures,- 	giving 	them 	the 	privilege
11 	For 	descriptions 	of 	the 	U.S. 	system, 	see 	-Joint 	Report
Describing 	the 	Manner 	in Which 	Standing Timber 	is 	Sold 	in 	the
U.S. 	and 	Canada 	and Stumpage 	Prices Actually 	Paid· 	(October
4, 	1982), 	Petition Vol.II, 	hereinafter 	cited 	as 	Petitioner's
Joint 	Report 	at 	9-15 	and 	Conditions 	Relating 	to 	the
Importation 	of 	Softwood 	Lumber 	Into 	the 	United 	States, 	Inv.
No. 	332-134 	at 	41-44 	(April 	1982) 	(hereinafter 	cited 	as 	"ITC
332 	Report-]. 	For 	additional 	detail, 	see 	John A. 	Combes,
"Forest Service Timber 	Appraisal 	and 	How 	It 	Works· 	(April
1980) 	(unpublished 	paper 	available 	from 	the 	Forest
Service). 	This 	Prehearing 	Brief does 	not 	offer 	proposed
findings 	of 	fact: 	rather, 	it 	relies 	principally 	on 	the 	facts
as 	set 	forth 	in Appendix 	B 	to 	the 	Preliminary 	Determination.
lQ/ 	Petitioner's Joint 	Report 	at 	9-15.
JJI 	In 	the 	years 	1979-1981, 	however, 	the 	appraised 	price 	was 	of
little 	practical 	significance 	because 	the 	bid 	prices 	for
stumpage 	exceeded 	the 	appraised 	value. 	Petitioner's Joint
Report 	at 	l6a 	to 	16f: 	and 	ITC Section 	332 	Report 	at 	41-42.
This 	has 	been 	attributed 	to 	industrr 	expectations 	of 	a 	high
level 	of 	housing 	starts 	and 	of 	contlnued 	high 	inflation.
~ discussion 	at 	note 	62 	infra.
ll/ 	In 	discussing 	the 	Canadian 	system, 	we 	focus 	on 	the 	methods
used 	by 	the 	Province 	of British 	Columbia, 	which, 	according 	to
Petitioner's 	data, 	supplies 	68' 	of 	total 	Canadian 	exports 	to
the 	United 	States. 	Coopers 	& Lybrand, 	Valuation 	of Stumpage
Subsidy 	8 	(1982).
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of 	doing 	business 	in 	a 	forest 	area. 	Although 	there 	are 	several
forms 	of 	"tenure," 	Petitioner 	and 	the 	Province 	both 	indicate 	that
the 	major 	forms 	are 	tree 	farm 	licenses 	(granting 	up 	to 	a 	twenty-
five 	year 	term) 	and 	forest 	licenses 	(granting 	up 	to 	a 	twenty-year
term}.1.V 	Licensees 	develop long-term 	plans, 	subject 	to
Provincial Forest Service 	approval, 	for 	forest 	use. 	Before
cuttirig 	timber, 	a 	licensee must 	obtain 	a 	cutting 	permit
specifying 	the 	volllDe 	of 	timber 	that may 	be 	harvested 	in 	a
designated 	area.1!I
The 	prices 	charged 	to 	"tenure" 	holders 	for 	harvesting 	rights
in 	British ColllDbia 	are 	based on 	an 	appraisal 	that, 	in 	general
principle, 	is 	similar 	to 	the O.S. 	Forest Service's 	appraisal.
The 	appraisal 	starts 	with 	the 	price 	of 	an 	end-product -- 	in
coastal 	British CollDbia, 	the 	end 	product 	is 	logs; 	and 	in 	the
interior, 	it 	is 	lllDber 	- 	and 	deducts ·harvesting, 	transportation,
and 	manuf actur i ng 	costs 	pl us 	a 	normal 	rate 	of 	prof it. 	The 	res ul t
is 	the 	appraised 	value 	of 	standing 	timber. 	In 	particular, 	in
estimating 	the 	costs'of 	harvesting, 	the 	appraisal 	considers 	the
11/ Petitioner's Joint 	Report 	at 	20; 	48 	Fed. 	Reg. 	10,411-12
(indicating 	that 	these 	two 	procedures 	account 	for 	89.6% 	of
the 	annual 	allowable 	cut).
III An 	"annual 	allowable 	cut" 	is 	established, 	and 	over 	a 	five-
year 	period 	the 	actual 	cut must 	be 	within 	pI us 	or 	minus 	ten
percent 	of 	the 	aggregate 	allowable 	amount. 	Within 	a 	single
year 	a 	plus 	or 	minus 	fifty 	percent 	deviation 	from 	the 	annual
allowable 	cut 	is 	permitted. 	48 	Fed. 	Reg. 	at 	10,411.
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location 	of 	the 	parcel 	of 	land 	in 	question, 	the 	species 	mix of
trees, 	the 	timber 	quality, 	the 	timber 	density 	(trees 	per 	acre),
the 	diff icu! ty of 	lO9gi ng, 	and 	a 	timber 	recovery factor.l:i/
C. 	Summary of 	Petitioner's Argument.
Peti ti oner 	all eges 	that 	C anadi an 	governmental 	sal es 	of
stumpage 	rights 	are 	subsidized 	because Canada 	fails 	to 	capture
the 	full 	economic rent 	associated 	with 	its 	ownership of 	this
natural 	resource 	and, 	by 	implication, 	suggests 	that 	this
• subsidy- 	has 	an 	impact 	on 	lumber 	imported 	into 	the 	Uni ted
states.1!I 	The 	Petition 	contends, 	in 	essence, 	that 	the
undercharge 	of 	stumpage 	fees 	is 	the 	assumption 	of 	a 	cost 	of
producing 1 umber. 	The 	reques t 	for 	imposi tion 	of 	a 	counter vailing
duty 	res ts 	on 	subsection 	(i v) 	of 	19 	U.5.C. 	S 	1677 (5) (B), 	whi ch
provides 	that 	-[t]he 	assumption 	of 	any costs 	or 	expenses 	of
manufacture, 	production, 	or 	distribution,· 	is 	a 	subsidy 	if 	done
by 	goverrmental 	action 	for 	a 	specific 	enterprise 	or 	industry, 	or
a 	group of 	enterprises 	or 	industries.
l:..2/ ~ 	at 	10,413: .!!!. Petitioner's Joint 	Report 	at 	30-35.
l!I 	Unless 	clearly specified 	to 	the 	contrary, 	the 	terms 	"Canada"
and 	"Canadian" 	as 	used 	herein 	include 	the 	Provincial
governments 	owning 	the 	timber 	at 	issue 	as 	well 	as 	the Federal
government 	of 	Canada.
Petitioner 	estimates 	that 	the 	Provinces 	own 	95 	percent 	of 	the
standing 	timber 	in Canada. 	Petition 	at 	24. 	The
International 	Trade Commission 	staff 	estimated 	that 	the
Provinces 	own 	about 	90 	percent 	of 	the 	"economically
accessible" 	softwood 	timber 	volume 	in Canada 	and 	that 	over
one-half 	of 	this 	is 	in 	British Coll.l1lbia. 	ITC 	332 	Report 	at
46.
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According 	to 	the 	Petitioner, 	Canada 	"administratively
determin[es] 	how much 	stumpage 	will 	be 	sold, 	to 	which 	mills 	and
at 	what 	price."l1/ 	The 	Petition's 	theory 	of 	subsidization 	is
that 	the 	commercial 	value 	of 	harvesting 	rights 	is 	due 	to 	the
timber's 	convertibility 	to 	lumber 	products; 	that 	the 	residual
value 	(the 	sale 	price 	of 	lumber 	minus 	harvesting 	and
manufacturing 	cost 	and 	profit) 	"is 	the 	'economic 	rent' 	associated
with 	the 	timber 	resource;" 	and 	that 	Canada 	effectively 	is 	"giving
away 	stumpage" 	by 	not 	charging 	the 	full 	economic 	rent.l!/
Petitioner's Brief 	at 	18-19. 	The 	Petition does 	not 	directly
analyze 	the 	economic 	effect 	of 	the 	alleged 	stumpage 	undercharge
on 	the 	supply 	or 	price 	of 	imported 	lumber, 	but 	assumes 	that 	a
reduced 	raw 	material 	cost 	will 	be 	passed 	through 	the 	production
process 	to 	affect 	the 	price 	of 	imported 	lumber.
The 	relationship 	among 	stumpage 	fees, 	the 	quantity 	of 	trees
cut, 	and 	the 	volume 	of exports 	of 	logs 	and 	lumber 	is 	complex. 	It
is 	important 	for 	purposes 	of 	this 	proceeding, 	therefore, 	to
identify 	specifically 	what 	aspects 	of 	the 	Canadian 	system are
and 	are 	not 	alleged 	to 	be 	the 	source 	of 	unfair 	competitive
disadvantages 	to 	domestic 	producers. 	Petitioner 	does 	not 	allege
that 	government 	ownership 	of 	timberland 	is ~~ a 	subsidy.
Both 	the 	United 	States 	and 	Canada 	own 	large 	tracts 	of 	timberland
and 	sell 	logging 	rights 	to 	private 	enterprises, 	such 	as 	the
]1/ Brief 	concerning 	the 	Canadian 	Governments' 	Assumption 	of 	Raw
Material 	(Stumpage) 	Cost 	of 	Producing 	Forest Products, 	filed
in Appendix 	II 	of 	the 	Petition, 	at 	1, 	6, 	22 	[hereinafter
cited 	as 	"Petitioner's Brief"].
l!/ 	For 	a 	definition 	of 	this 	term, 	see 	note 	33 	infra.
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petitioning u.s. 	producers 	and 	the 	Canadian 	lLltlber 	companies.
Petitioner 	also 	does 	not 	base 	its 	claim 	for 	imposition 	of
countervailing duties 	on 	the 	Canadian 	government's 	administrative
det~rmination of 	how much 	timber may 	be 	cut 	in 	a 	given 	period.
Indeed, 	the 	Petition 	does 	not 	offer 	evidence 	that 	would support 	a
finding 	that 	the 	administrators 	in Canada 	(or 	in 	the United
States) 	allow 	too 	little 	or 	too much 	timber 	to 	be 	cut. 	Finally,
although 	Peti tioner 	observes 	that Canada 	prohi bi ts, 	or 	severely
restr:cts, 	~he export 	of 	logs, 	Petitioner 	neither 	asserts 	that
this 	alone 	creates 	a 	countervailable subsidy, 	nor 	attempts 	to
value 	its 	benefit, 	if 	any, 	to Canadian 	producers. 	Petition 	at
28. 	Since 	the 	log export 	ban 	is 	not 	alleged 	to 	confer 	a 	subsidy,
this 	Brief 	does 	not 	undertake 	a 	separate 	economic analysis 	of 	the
export 	restriction.
D. 	Summary of 	Preliminary Determination.
In 	its Preliminary Negative Countervailing Duty
Determinations, 	the 	Department 	of 	Commerce 	found 	that 	some 	of 	the
subsidies 	alleged 	by 	Petitioner 	were 	not 	countervailable 	and 	the
others 	were 	in 	the 	aggregate, 	k 	minimis. 	It 	therefore 	made 	a
negative 	determination.l:iI 	The Department 	relied on 	four 	main
reasons 	for 	its 	determination 	with 	regard 	to 	the 	alleged 	stumpage
SUbsidy.
l:iI prelirninarr Negative Countervailing Duty Determination, 	48
Fea. 	Reg. 	0,395 	(March 	11, 	1983).
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First, 	the 	Department 	concluded 	that 	the 	alleged 	stumpage
subsidy 	is 	not 	provided 	to 	a 	Wspecific 	••• 	group 	of 	industries"
as 	required 	by 	the 	statutory definition 	of 	a 	domestic subsidy.
48 	Fed. 	Reg. 	10,403.
Second, 	tne 	Department 	concluded 	that 	the 	setting 	of 	low
sttlDpage 	fees 	does 	not 	constitute 	the 	wasslJllption 	of 	a 	cost W of
production, 	because 	the 	relevant 	statutory language, 	properly
interpreted, 	suggests 	the 	assumption 	of 	a 	pre-existing
liability. 	Moreover, 	even 	if 	the 	term 	"assumption" 	is
interpreted more 	broadly, 	no 	cost 	was 	asslDed. 	The Department
distinguished 	its 	peior 	precedents 	on 	the 	grounds 	that 	past
practice 	did 	not 	involve 	the 	use 	of 	cross-border 	comparisons 	in
setting 	a 	commercial 	benchmark 	for 	ascertaining 	the 	presence 	or
absence 	of 	a 	subsidy: 	that 	there 	is 	no 	unified North American
market 	for 	stumpage: 	and 	that 	there 	is 	no 	Winternational 	price"
for 	stlJDpage. 	It 	determined 	that 	the 	residual-value 	appraisals
are 	a 	reasonable method 	of 	valuation. 	48 	Fed. 	Reg. 	at 	10,403.
Third, 	the 	alleged 	SUbsidy 	derives 	from Canada's' purported
failLlI'e 	to 	collect 	the 	full 	economic 	rent 	associated 	with 	its
ownership 	of 	sttIDpage. 	However, 	the Department 	determined 	that
undercollection 	of 	a 	rent 	does 	not 	produce 	an 	increase 	in 	the
supply 	of 	lumber, 	and 	therefore 	does 	not 	interfere 	with 	the
efficient 	allocation 	of 	resources. 	48 	Fed. 	Reg. 	10,404.
Fourth, 	the Commerce Department found 	that 	comparison 	of
unadj usted Uni ted 	States 	stumpage 	fees 	wi th Canadi an 	pr i ces 	would
be 	"arbitrary and,capricious,w 	and 	not 	indicative 	of 	whether 	the
Canadian 	prices 	were 	"subsidized. w 	The 	Preliminary Determination
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also 	questioned 	whether 	there 	was 	a 	rational 	basis 	for 	making 	the
appropriate 	adjustments, 	given 	that 	the 	quality 	and 	accessibility
of 	timber 	in 	the 	two 	countries 	varies 	widely: 	that 	Canada
requires 	in-kind 	payments 	for 	harvesting 	rights: 	and 	that 	recent
United 	States 	prices 	have 	been 	bid 	two 	to 	five 	years 	in 	advance
of 	use 	and 	therefore 	have 	not 	taken 	into 	account 	the 	decline 	in
the 	housing 	industry. 	In 	addition, 	the 	Department 	noted 	that
even 	if 	there 	were 	a 	rational 	basis 	for 	adjusting 	for 	these
differences, 	~he best 	available 	evidence 	suggests 	that 	the
stumpage 	prices 	in 	the 	two 	countries do 	not 	vary 	significantly.
48 	Pede 	Reg. 	at 	10,404.
E. 	Summary 	of 	FTC Analysis.
1. 	Section 	I 	of 	this 	brief 	discusses 	the 	policy 	issues 	that
should 	be 	considered 	by 	the 	Department 	in 	interpreting 	and
applying 	the 	countervailing 	duty 	statute. 	It 	proceeds 	from 	the
proposition 	that 	not 	every 	governmental 	payment 	or 	other 	benefit
conferred 	on 	private 	parties 	is 	a 	countervailable 	subsidy.
Rather, 	only 	those 	payments 	that 	distort 	trade 	and 	resource
allocation 	by 	affecting 	the 	price 	or 	quantity 	of 	the 	good
produced 	should 	be 	subject 	to 	countervailing 	duties. 	While 	the
Commerce 	Department 	has 	authority 	to 	extend 	the 	list 	of 	subsidy
practices 	enumerated 	by Congress, 	the 	legislative 	history 	is
clear 	that 	the 	Department 	should 	do 	so 	only 	when 	the 	practice
violates 	the 	underlying 	purposes 	of 	the 	statute. 	That 	is, 	the
o
duty 	should 	be 	imposed 	only 	when 	the 	foreign 	government's 	program
affects 	the 	output 	or 	price 	of 	the 	imported 	product.
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2. 	Section 	II 	examines 	Petitioner's 	claims 	with 	respect 	to
the 	alleged 	sUbsidy on 	lumber. 	This 	section 	asserts 	that 	even 	if
there 	is 	an 	economic 	benefit 	conferred on 	stumpage 	sales 	in
Canada, 	this 	benefit 	would 	have 	no 	effect 	on 	either 	the 	prices 	of
logs .sold 	to Canadian 	lumber 	mills 	or 	the 	prices 	of 	lumber
imported 	into 	the United States. 	Consequently, 	any 	alleged
benefit 	associated with 	lower 	stumpage 	fees 	does 	not 	represent 	a
subsidy on 	imported 	lumber. 	The 	economic 	analysis 	underlying
this 	conclusion 	is 	presented 	in much 	fuller 	and 	more 	technical
detail 	in 	the 	appendix 	by Dr. 	David 	G. 	Tarr 	of 	the Commission's
Bureau 	of 	Economics. 	This 	conclusion 	is 	entirely consistent 	with
the 	findings 	and 	reasoning 	of 	the 	Preliminary Determination.
This 	analysis 	supports 	the 	Department's 	decision 	by 	pointing 	out
that 	the 	benefi t, 	if 	any, 	reali zed 	by 	timber 	owners 	in Canada
does 	not 	aff ect 	the 	quanti ty or 	pr i ce 	of 	lumber 	il1\ported 	into 	the
United States 	and 	thus 	does 	not 	distort 	trade 	or 	subject
Petitioner 	to 	competitive 	disadvantage.
3. 	Section 	III"examines 	the 	Petitioner's 	claims 	with
respect 	to 	the 	alleged 	subsidy 	on 	stumpage. 	It 	concludes 	that
the 	Preliminary Determination 	correctly 	held 	that 	the 	proper
benchmark 	by 	which 	to 	determine 	whether 	or 	not 	there 	is 	a 	subsidy
is 	the market-determined 	price 	for 	stumpage 	as 	it 	exists, 	or
would 	exist, 	in Canada. 	If 	resort 	to 	stumpage 	prices 	in 	another
country 	is 	necessary 	to 	provide 	a 	surrogate 	for 	otherwise
unavailable Canadian market-determined 	prices, 	this 	section
asserts 	that 	use 	of 	unadj usted Uni ted States 	prices 	would 	be
1 egall y 	i nco r r ect 	and 	at 	var i ance 	with 	the 	eco nomi c 	pr i nci pl e 	of
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comparative 	advantage. 	Finally, 	this 	section 	observes 	that 	the
adj ustments 	that must 	be made 	to 	use Oni ted 	States 	prices 	would
have 	to 	account 	for 	differences 	oot 	only 	in 	the 	relative 	value 	of
stlDpage 	in 	the 	two 	countries 	but 	also 	in 	the 	nature 	of 	the
stllDpage· harvesting 	rights 	that 	each 	country 	sells.
I. 	THE 	COMMERCE 	DEPARl'MENT SHOULD 	ANALYZE 	WHETHER THE 	ALLEGED
SUBSIDY PRODUCES 	AN 	UNFAIR 	DISTORTION 	OF 	TRADE 	AND 	PROVIDES
AN 	UNFAIR 	COMPETITIVE ADVANTAGE TO 	CANADIAN PRODUCE~.
Countervailing duties 	are 	imposed 	to 	offset 	an 	unfair
competitive advantage 	that 	causes 	a 	distortion 	of 	trade 	by
affecting 	the 	price 	or 	quantity of 	the 	good 	in question. 	Not 	all
goverruental 	practices 	and 	programs 	-- 	inclUding 	payments 	made
and 	benefits 	conferred 	pursuant 	to 	natural 	resource 	management
programs 	-- 	cause such 	distortions.lQ! 	In 	addition, 	same
governmental 	programs 	may have 	an 	impact 	on 	firms 	operating 	at
one 	stage 	of 	production 	without 	affecting 	trade 	at 	subsequent
stages 	of 	production. 	Sound 	economic analysis 	can 	help
distinguish 	those 	governmental 	programs 	that 	distort 	trade 	from
those 	that 	do 	not.
Section 	303 	of 	the 	Tariff 	Act 	of 	1930, 	as 	CIIlended, 	provided
for 	imposi tion 	of 	countervailing 	duties 	in 	the 	Wnet 	amount 	of 	any
bounty or 	grant- 	paid or 	bestowed 	on 	an 	imported 	product's
lQ/ Some 	governmental 	practices 	-- 	depending 	on 	their 	details 	--
may 	affect 	the 	overall 	profitability 	that 	private 	enterprises
experience 	in 	their 	business 	activities 	without 	affecting
either 	the 	profitability 	of 	marginal 	investments 	or 	the
incentives 	of 	firms 	to 	undertake 	those 	investments.
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"manuf act ure 	or 	producti on 	or 	export. ,,21/ 	In 	1978, 	the 	Supreme
Court 	offered 	perhaps 	the 	best 	expression 	of 	the 	purpose 	of 	this
section:
This 	purpose 	is 	relatively clear 	from 	the 	face
of 	the 	statute 	and 	is 	confirmed 	by 	the 	con-
gressional 	debates: 	The 	countervailing 	duty
was 	intended 	to 	offset 	the 	unfair 	competitive
advanta~e that 	foreign 	producers 	would 	other-
wise 	enJoy 	f rom 	export 	s ubsi di es 	paid 	by 	thei r
governments. 	Zeni th 	Radio Corp. 	v. 	Uni ted
States, 	437 	u.S. 	443, 	455-56 	(1978) 	(citations
omitted, 	emphasis 	added).
Thirteen months 	after 	the 	Supreme Court 	decision 	in 	Zenith,
Congress 	passed 	the Trade Agreements Act 	of 	1979, 	which 	contains
the 	statute 	at 	issue 	in 	this 	proceeding. 	In 	amending 	the 	1930
legislation, 	Congress 	was 	aware 	of 	-- 	and 	by 	implication 	endorsed
-- 	the 	Supreme Court's 	view 	of 	the 	statute's 	purpose 	by 	expressly
providing 	in 	the 	new legislation 	that 	"the 	term 	'subsidy' 	has 	the
same meaning 	as 	the 	term 	'bounty or 	grant' 	as 	that 	term 	is 	used
in section 	303 	of 	the Act." 	19 	U.S.C. 	S 1677(5).'w 	Indeed, 	the
Senate Finance Camnittee's 	description 	of 	a 	countervailable
sUbsidy 	echoed 	the 	Supreme Court's 	emphasis 	on 	"competitive
advantage," 	stating: 	"Subsidies 	are 	bounties 	or 	grants 	bestowed
(usually 	by 	goverIJllents) 	on 	the 	production, 	manufacture 	or 	export
111 	Pub. 	Law No. 	93-618, 	88 	Stat. 	1978, 	2049 	(Jan. 	3, 	1975) •
.wH.R. 	Rep. 	No. 	96-317, 	96thCong., 	1st Sess. 	21 	(1979).
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of 	products, 	often 	with 	the 	effect 	of 	providing 	some 	competitive
advantages 	in 	relation 	to 	products 	of 	another 	country.ftll!
The 	congressional 	debates 	confirm 	that 	Congress' 	concern 	was
limited 	to 	those 	foreign 	practices 	that 	distort 	trade 	and 	provide
unfair 	competitive 	advantages. 	At 	the 	outset 	of 	a 	colloquy 	with
Senator 	Ribicoff 	concerning 	the 	amendments 	to 	the 	countervailing
duty 	statute, 	Senator 	Heinz, 	who 	was 	a 	leader 	in 	supporting 	the
1979 	statutory 	amendments, 	stated:
We 	have 	an 	international 	economy 	and 	cannot
wall ourselves 	off 	from 	it. 	Nor 	should 	we
want 	to 	-- 	for 	trade 	invariably 	means 	jobs 	and
profits 	for 	Americans.
At 	the 	same 	time, 	however, 	in 	our 	pursuit 	of
trade 	expansion, 	we 	should 	not 	abandon 	our
free 	market 	principles 	and 	our 	reliance 	on
competition 	and 	the 	law 	of 	comparative
advantage 	al!Jrbiters 	of 	the 	market-
place 	•••
After 	describing 	the 	abandonment 	by 	other 	countries 	of 	free-
market 	principles 	and 	reliance 	on 	competition, 	Senator 	Heinz
continued:
It 	is 	precisely 	these 	unfair 	and, 	from 	the
standpoint 	of 	classical 	economic 	theory,
trade-restr~sjing practices 	I 	seek 	to 	con-
trol ••••
.ill S. 	Rep. 	No. 	96-249, 	96th Cong., 	1st Sess. 	37 	(1979). 	In
addition, 	the 	House 	Ways 	and 	Means 	Committee 	Report 	on 	the
1979 	Act 	listed, 	as 	one 	of 	the 	ftkey· 	accomplishments 	of 	the
international 	subsidies 	code, 	the 	ft[r]ecognition 	that 	where
domestic 	subsidies 	are 	granted on 	noncommercial 	terms, 	trade
distortions 	are 	especially 	likely 	to 	arise 	•••ft 	H.R. 	Rep.
No. 	96 -317, 	96th Cong., 	1st Sess. 	43 	(1979) 	(emphas is 	added).
111 	125 	Cong. 	Rec. 	S. 	10,306 	(daily 	ed. 	July 	23, 	1979) •
.l2I.19..:.
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In 	distinguishing 	practices 	that 	are 	unfair 	-- 	i. e., 	trade-
distorting 	-- 	from 	those 	that 	are 	not, 	it 	is 	important 	that 	the
statute's 	legal 	interpretation 	and 	application 	be 	guided 	by 	an
economic 	analysis 	to 	determine 	if 	any 	unfair 	competitive
advantage 	is 	created 	by 	the 	practice 	in 	question. 	The 	statutory
defi ni tion 	of 	a 	domestic 	subsidy 	is 	as 	follows:
(B) 	The 	f 011 owi ng 	domes ti c 	subs i di es, 	if
provided 	or 	required 	by 	government 	action 	to 	a
specific enterprise 	or 	industry, 	or 	group 	of
enterprises 	or 	industries, 	whether 	publicly 	or
privately owned, 	and 	whether 	paid or 	bestowed
directly 	or 	indirectly on 	the manufacture,
production, 	or 	export 	of 	any class 	or 	kind 	of
mer chand is e:
(i) 	The 	provision 	of 	capital, 	loans, 	or
loan 	guarantees 	on 	terms 	inconsistent
wi th 	commerci al 	considerations.
(ii) 	The 	provision 	of 	goods 	or 	ser vices
at 	pref erenti al 	rates •.
(iii) 	The 	grant 	of 	funds 	or 	forgiveness
of 	debt 	to 	cover 	operating 	losses
sustained 	by 	a 	specific 	industry.
(i v) 	The 	ass umption 	of 	any costs 	or
expenses 	of 	manufacture, 	production, 	or
distribution.
19 	O.S.C. 	S 1677(5) •.
The Commerce 	Department 	preliminarily concluded 	that 	the
statutory language, 	"assumpti,)n 	of 	a 	cost," 	in 	the 	fourth 	clause
suggests 	the 	undertaking 	of 	a 	pre-existing 	liability. 	48 	Fed.
Reg. 	10,403. 	As 	a matter 	of 	pure 	statutory 	construction, 	the
logic 	underlying 	this 	conclusion 	is 	impeccable. 	An 	undercharge
for 	stumpage 	is, 	if 	anything, 	the 	provision 	of 	a 	good, 	and 	there
is 	no 	claim 	in 	this 	case 	that 	there 	has 	been 	any 	"provision 	of 	a
good 	at 	a 	preferential 	rate" 	as 	the 	second 	clause 	would
require. 	Consequently, 	if 	an 	undercharge 	for 	stumpage 	were 	also
considered 	to 	be 	an 	assumption 	of 	a 	cost, 	the 	fourth 	clause 	would
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totally 	swallow 	up 	the 	second. 	Since Congress 	could 	have
provided 	that 	all 	provisions 	of 	goods 	are 	subsidies, 	but 	did 	not
do 	so, 	any 	interpretation 	of 	the 	fourth 	clause 	that, 	in 	effect,
would 	eliminate 	the 	requirement 	that 	provisions 	of 	goods 	be 	"at
preferential 	rates· 	would -contravene 	the 	intent 	of 	Congress 	and
be 	overly 	broad.
However, 	the 	parsing 	of 	the 	statutory language 	in Section
771 (B) (5) 	of 	the Trade Agreements Act 	is 	not 	dispositive. 	The
le9islative 	history of 	the 	Act 	indicates 	that 	Congress's 	intent
was 	not 	to 	set 	forth 	a 	comprehensive 	l1st 	of 	every 	possible
subsidy 	practice, 	but 	rather 	to 	offer 	the 	four 	enumerated
definitions 	as 	examples 	of 	subsidies. 	When 	considering a 	program
not 	literally described 	by 	one 	of 	the 	four 	examples, 	the
Congressional Committee Reports 	state 	that 	the Department 	should
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make 	a 	determination 	based on 	the 	"principles 	implicit" 	in 	the
enumerated sUbsidy 	practices.~
In 	ascertaining 	whether 	imposition 	of 	countervailing 	duties
against 	a 	program 	is 	consistent 	with 	these 	principles, 	the
Department 	should look 	to 	the 	economic 	impact 	of 	the 	program 	on
foreign 	sales 	in 	the United States market. 	In 	particular, 	the
critical 	issue 	is 	whether 	the 	foreign 	program 	affected 	either 	the
foreign 	producers' 	output 	of 	the 	product 	under 	investigation 	or
the 	price 	charged 	by 	those 	producers. 	Unless 	a 	foreign
governmental 	program 	affects 	either 	the 	supply 	or 	the 	price 	of
the 	product 	in question, 	there 	can 	be 	no 	unf ai r 	competi ti ve
benefit 	or 	trade 	distortion, 	and 	hence 	no sUbsidy should 	be
found.
As 	developed 	in Sections 	II 	and 	III 	below, 	there 	is 	00
persuasive 	economic 	rationale 	or 	evidence 	compelling 	the
conclusion 	that 	the Canadian 	stumpage 	fee 	system 	has 	a
.ill The Canmerce 	Department 	cl early has 	the 	author i ty 	to
countervail 	against 	subsidies 	not 	specifically 	listed 	in 	the
statute, 	but 	only 	to 	the 	extent 	t~at such 	a 	determination 	is
consistent 	with 	the 	principles 	implicit 	in 	the 	statutory
examples. 	As 	expressed 	by 	the 	House Ways 	and Means 	Camnittee
Report:
In 	deciding 	whether 	any other 	practice 	is 	a subsidy, 	the
standard 	remains 	that 	presently 	used 	with 	regard 	to 	a
"bounty or 	grant- 	under 	section 	303. 	However, 	to 	the
extent 	that 	the 	enumerations 	under 	this 	provision 	might
provide 	a 	basis 	for 	expanding 	the 	present 	standard
consistent 	with 	the 	underlying 	principles 	implicit 	in
these 	enumerations, 	then 	the 	standard 	shall 	be 	so
aI tered.
H.R. 	Rep. 	No. 	96-317, 	96thCong., 	1st Sess. 	74 	(1979)
(emphasis 	added). 	Accord S. 	Rep. 	No. 	96-249, 	96th Cong., 	1st
Sess. 	85 	(1979).
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subsidizing 	effect, 	i.e., 	that 	it 	affects 	the 	quantity or 	price
of 	softwood 	products 	imported 	into 	the United States 	and 	thus
distorts 	domestic 	trade. 	The 	Commission's 	analysis 	demonstrates
that 	the 	undercharge 	for 	stumpage, 	if 	any, 	is 	the 	undercharge 	for
an 	economic rent, 	and 	does 	oot 	have 	the 	effect 	of 	increasing 	the
supply 	of 	lllllber 	or 	reducing 	its 	price. 	Furthermore, 	ass uming
hypothethically 	that 	there 	is 	a 	price 	differential 	between
identical 	tracts 	of 	stumpage 	in 	the United States 	and Canada
and 	this 	currently 	is 	an 	unsupported 	ass umption 	-- 	this
circumstance 	does 	oot 	conclusively demonstrate 	subsidization. 	A
natural 	Canadian 	comparative 	advantage 	in stumpage 	may 	explain
the 	price 	differential. 	Petitioner 	assumes 	that 	the 	existence 	of
a 	unified 	North American 	market 	for 	lumber 	will 	result 	in 	equal
prices 	for 	sttIDpage 	(absent 	subsidization). 	As 	discussed more
fully 	in Section 	IIIB, 	below, 	this 	economic 	theory 	is 	valid only
under 	very 	restrictive 	assumptions, 	and 	Petitioner 	has 	not
demonstrated 	that 	all 	the 	preconditions 	are 	present.
II. 	THE 	ALLEGED FAILURE 	TO 	CHARGE 	THE 	FULL 	MARKET PRICE 	AS 	A
STUMPAGE 	FEE 	OOES 	NOT 	AFFEcr 	THE 	PRICES 	EITHER OF 	LO~ 	SOLO
TO 	CANAOIAN LUMBER 	MILLS 	OR 	OF 	LUMBER 	IMPORTED 	INTO THE
UNITED STATES 	AND IS 	THEREFORE 	NOT 	A COUNTERV'AILABLE 	SUBSIDY.
As 	the Commerce Department 	recognized 	in 	its 	final
determination 	in 	the 	recent Carbon Steel 	cases, 	it 	is 	rot
sufficient 	to show 	simply 	that 	a 	benefit 	is 	granted 	to 	an
"upstream" 	producer 	of 	a 	product 	that 	is 	used 	as 	an 	input 	ina
"downstream" 	production 	process. 	As 	indicated 	above, 	it 	is 	not
enough 	that 	a 	benefit 	be 	received~ 	in 	order 	to 	represent 	a
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subsidy, 	the 	benefit 	must 	affect 	price 	or 	output 	in 	some 	relevant
respect 	before 	it 	can 	be 	considered 	a 	sUbsidy 	to 	the 	downstream
industry 	as 	well.11/
The 	Canadian 	stumpage 	fee 	applies 	to 	production 	of 	an
WupstreamW product. 	The 	analysis 	contained 	in 	this 	Section-shows
that 	any 	undercharge 	for 	that 	stumpage 	fee 	does 	not 	have 	an
impact 	wdownstream. w 	In 	its 	Preliminary Determination, 	the
Department 	also 	has 	adopted 	this 	view 	and 	has 	correctly
identified 	the 	economic 	reason 	for 	this 	result.1!I 	Simply
stated, 	the 	stumpage 	fee 	is 	a 	payment 	for 	the 	right 	to 	realize
part 	(or 	all) 	of 	the 	economic 	rent 	associated 	with 	a 	given 	parcel
of 	timber. 	Economic 	rent 	in 	this 	instance 	represents 	the 	surplus
that 	can 	be 	earned 	from 	the 	sale 	of 	logs, 	i.e., 	the 	revenue
11/ Rejecting 	objections 	by domestic 	steel 	producers 	to 	the
Department's 	effort 	to 	determine 	whether 	a 	subsidy 	on 	an
input 	conferred 	a 	benefit 	to 	steel 	producers, 	the 	Department
stated:
Under 	the 	Act, 	the 	Department 	is 	required 	to
determine 	whether 	respondents 	have 	received
subsidies 	within 	the 	meaning 	of 	the Act. 	To
do 	so, 	the 	Department 	seeks 	to 	determi~e
whether 	or 	not 	respondents 	have 	received
directly 	or 	indirectly 	an 	economic 	benefit.
Whereas 	this 	is 	relatively 	easy 	in 	the 	case 	of
the 	direct 	bestowal 	of 	a 	grant, 	it 	is 	quite
difficult with 	regard 	to 	indirect 	subsidies
allegedly conferred 	through 	the 	subsidization
of 	inputs 	used 	in 	a 	final 	proQuct. 	In 	this
more 	complex 	area, 	we 	believe 	it 	is 	required
for 	the 	Department 	to 	consider 	whether 	there
is 	an 	economic 	benefit 	to 	foreign
manufacturers 	of 	the 	final 	product 	of
subsidies 	bestowed on manufacturers 	of 	an
i nd i vi du ali npu t • 	• 	• 	." 	47 	Fed. 	Reg. 	38, 32 2
(Sept. 	7, 	1982).
W 	48 	Fed. 	Reg. 	10,404.
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realized 	by 	the 	sale of 	logs 	from 	a 	parcel 	of 	land 	minus 	the
costs 	associated 	with 	harvesting, 	transporting, 	and 	selling 	these
10gs.12I
As 	we 	will 	discuss 	below, 	land 	will 	be 	logged 	if, 	and 	only
if, 	it 	has 	positive 	economic 	rent 	associated 	with-it. 	The
decision 	to 	log 	the 	land 	will 	not 	be 	affected 	by 	the 	stumpage
fee, 	so 	long 	as 	the 	fee 	is 	set 	in 	the 	range 	between 	zero 	and 	the
amount 	by 	which 	the 	value 	of 	the 	logs 	exceeds 	the 	cost 	of
harvesting 	them. 	Within 	that 	range, 	the 	amount 	of 	the 	fee 	merely
determines 	how 	the 	surplus, 	or 	economic rent, 	is 	distributed
between 	the Canadian 	government 	as 	owner 	of 	the 	land 	and 	the
logger 	who 	removes 	and 	sells 	the 	timber. 	The Canadian 	stumpage
fee 	system 	will 	not 	have 	any 	effect 	on 	the supply 	of 	logs 	because
its 	operation will 	not 	induce 	land 	to 	be 	harvested 	that 	otherwise
would 	not 	have 	been 	logged. 	Since 	there 	is 	no 	effect 	on 	the
supply of 	logs, 	there 	also 	will 	be 	no 	effect 	on either 	the 	price
of 	logs 	or 	on 	the 	price 	of 	1 unber 	imported 	into 	the Uni ted
States.
Thus, 	much 	of 	the 	Petitioner's 	presentation 	is 	addressed 	to
a 	question 	about 	which 	the Commerce Department 	need 	not 	concern
itself, 	that 	of 	the 	·correct· 	method 	for 	setting a 	stumpage
fee. 	This 	question 	is 	irrelevant 	precisely 	because 	there 	can 	be
no 	subsidy 	with 	respect 	to 	stumpage 	fees 	no 	matter 	how 	the 	price
for 	the 	right 	to 	cut 	timber 	is 	set. 	Indeed, 	this 	conclusion
l2.I As 	discussed 	below, 	however, 	economic 	rent 	should 	be
calculated 	using 	considerations 	pertinent 	to 	the 	buyer's
decision whether 	or 	not 	to 	purchase 	the 	good 	(in 	this 	case,
stumpage 	rights).
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would 	hold 	even 	if 	stumpage 	rights 	were 	given 	away. 	The 	only way
that 	the 	price 	charged 	for 	harvesting 	stll1\page 	could 	constitute 	a
subsidy 	would 	be 	if 	the 	price 	were 	negative, 	that 	is, 	if 	firms
received 	a 	payment 	from 	the 	government 	for 	harvesting 	and 	selling
the 	timber. 	No 	payme,nt 	of 	this 	kind, 	of 	course, 	has 	been made.
Regardless 	of 	the 	level 	at 	which 	the 	stumpage 	fee 	is 	set,
the 	price 	of 	logs 	is 	determined 	independently 	by 	the 	interaction
of 	the 	demand 	for 	and 	supply 	of 	10gs.~ 	Neither 	the Canadian
nor 	the 	Onited 	States 	stumpage 	fee 	systems 	affect 	the 	demand 	for
logs, 	whi ch 	depends 	on 	the 	demand 	for 	1 umber 	and 	other 	products
made 	from 	logs. 	Demand 	is 	controlled 	by 	independent 	forces.
Moreover, 	the 	stumpage 	fee 	system 	does 	not 	affect 	the 	supply
(and, 	hence, 	the 	price) 	of 	logs. 	This, 	is 	true 	because 	the
supply 	functions 	of 	the 	individual 	firms 	that 	produce 	logs 	are
unaffected 	by 	the 	stumpage 	system.
The 	supply 	of 	logs 	is 	directly 	dependent 	upon 	the 	cost 	of
produci ng 	them. 	The 	costs 	that 	aff ect 	the 	supply of 	logs 	i ncl ude
the 	costs 	of 	bui~ding any 	necessary 	roads 	to 	gain 	access 	to 	the
1Q/ Stated more 	precisely, 	the 	price 	of 	logs 	is 	determined 	by 	the
interaction 	of 	the 	demand 	function 	and 	supply 	function 	for
logs.
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trees, 	of 	cutting down 	the 	trees, 	of 	transporting 	the 	logs 	to
their markets, 	and 	of 	reforesting 	the 	harvested 	parcel. lJI 	These
costs 	also 	i ncl ude 	a 	normal 	prof it.
On 	the 	other 	hand, 	these 	costs 	do 	not 	include 	any 	stumpage
fee 	paid 	by 	the 	harvester 	to 	the 	owner 	of 	the 	timberland 	-- 	in
Canada, 	usually 	the Federal 	or Provincial 	goverrment -- 	for 	the
right 	to 	harvest 	the 	logs. 	As 	Petitioner 	recognizes, 	the
stumpage 	fee 	represents 	that -portion 	of 	the 	trees' 	value, 	or
economic 	rent, 	that 	is 	captured 	by 	the 	landowner •.ll/ 	By
definition, 	an 	economic 	rent 	does 	not 	affect 	the 	quantity 	of 	a
1lI The 	costs 	of 	logging 	additional 	parcels 	of 	land 	are
additional 	or 	marginal 	costs 	associated 	with 	the 	logging
operation. 	These 	additional 	costs 	would 	be 	expected 	to 	rise
as 	the 	production 	of 	logs 	increases 	because, 	all 	other 	thi ngs
being equal, 	progressively less-accessible 	parcels 	of
timberland 	and/or 	land 	with 	less 	valuable species 	would 	have
to 	be 	harvested. 	Since 	the 	product 	at 	issue 	is 	being
discussed 	using 	the 	homogeneous 	term 	-logs,- 	it 	is 	necessary
to measure 	units 	in 	quality-adjusted 	units 	or 	efficiency
tmits~ 	for 	example, 	logs 	could 	be 	defined 	as 	a 	certain 	number
of 	usable 	board 	feet 	of -ti:mber. 	This 	characterization 	is
made 	for; 	exposi tional 	ease. 	The 	analysis 	is 	not 	made
incorrect 	by 	the 	fact 	that 	in 	reality 	different 	logs 	produce
different 	amounts 	of 	lumber 	or 	differ 	in 	other 	ways. 	See,
~, J. 	Robinson, 	The Economics 	of 	Imperfect Canpeti tion 	109
~ed. 	1969) 	(Chapter 	8, 	-A 	Digression 	on Rent-) •
.ll/ Peti tioner' s 	B ri ef 	at 18-19. 	The 	B ri ef 	states:
The 	maximlJD 	amount 	a 	purchaser 	(i. e., 	mill) 	can
afford 	to 	pay 	for 	standing 	timber 	is 	the 	sale 	value
of 	the 	products 	(1. e., 	lumber) 	whi ch 	can 	be
recovered 	from 	it, 	less 	logging 	and manufacturing
costs 	(including 	a 	-normal- 	profit). 	This 	residual
value 	of 	standing 	timber 	is 	the 	-economic 	rent"
associated 	with 	the 	timber 	resource •
.!lh. at 18.
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factor 	supplied.11I 	Characterization 	of 	stumpage 	fees 	as 	part 	of
economic 	rent 	rather 	than 	a 	cost 	that 	affects 	the 	quantity
supplied 	follows 	from 	the 	fact 	that 	the 	9Overnment, 	which 	decides
how much 	land 	will 	be made 	available 	for 	logging, 	would make 	the
land 	available 	for 	harvesting 	and 	loggers 	would 	harvest 	the 	logs
regardless 	of 	where 	the 	stumpage 	fee 	is 	set, 	so 	long 	as 	it 	is
within 	the 	range 	between 	zero 	and 	the 	amount 	by 	which 	the 	value
of 	the 	logs 	exceeds 	costs 	of 	harvesting 	them.ill
Although 	the 	existence 	of 	this 	economic 	rent 	is 	extremely
important, 	the 	allocation 	of 	the 	economic 	rent 	between 	the 	timber
owner 	and 	the 	harvester 	will 	not 	determi ne 	whether 	or 	not 	a
parcel 	of 	land 	will 	be 	logged. 	That 	will 	depend 	on 	whether 	an
economic rent 	exists 	and 	can 	be 	earned 	by 	someone 	if 	the 	land 	is
logged. 	Whether 	such 	a 	rent 	exists 	depends 	on 	cost 	and market
factors 	that 	are 	independent 	of 	the 	stumpage 	fee, 	namely, 	whether
the 	anticipated 	revenue from 	sale 	of 	the 	logs 	exceeds 	the 	costs
of 	harvesting 	and 	selling 	them. 	If 	so, 	the 	logger 	will 	have 	an
III Techni cally, 	"economic 	rent" 	is 	def ined 	as 	a s urpl us 	earned
by a 	factor 	of 	production over 	and 	above 	the 	minlmum
necessary 	to 	induce 	that 	factor 	to 	remain 	employed 	in 	its
current 	use. 	See J. 	Robinson, 	note 	31 supra, 	at 102-19. 	~
also 	T. 	Scitovsky, 	Welfare ~ competition 	108 	(1971).
l!I 	In 	contrast, 	compare 	the 	stumpage 	fee 	with 	the 	wage 	paid 	to 	a
logger. 	The 	land 	will 	continue 	to 	be 	made 	available 	for
logging 	regardless 	of 	the 	stumpage 	fee 	paid. 	However, 	if 	the
wages 	of 	the 	loggers 	who 	cut 	the 	trees 	are 	reduced, 	some 	or
all 	of 	them 	will 	quit 	wor king 	as 	loggers 	and 	do 	sanet hing
else. 	Therefore, 	wages 	are 	a 	cost 	which 	affects 	supply,
since 	the 	labor 	currently 	employed 	in 	the 	industry would 	not
remai n 	in 	the 	indus try 	if 	the 	wages 	were 	not 	pai d. 	Thus, 	a
cost 	which 	affects 	supply 	is 	a 	payment 	which 	affects 	the
quantity of 	the 	factor 	supplied, 	while 	a 	rent 	is 	a payment
whi ch 	does 	not 	affect 	the 	quantity supplied.
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incentive 	to 	purchase 	the 	stumpage 	and 	harvest 	the 	parcel. 	The
magnitude 	of 	the 	stumpage 	fee 	charged 	simply 	will 	determine 	how
much 	of 	the 	anticipated 	rents 	the 	land 	owner 	and 	logger 	each 	will
reali ze. 	As 	noted 	above, 	the 	parcel 	of 	land 	will 	be 	harvested
regardless 	of 	where 	the 	stumpage 	fee 	is 	set, 	so 	long 	as 	it 	is 	in
the 	range 	between 	zero 	and 	the 	amount 	by which 	the 	value 	of 	the
logs 	exceeds 	the 	costs 	of 	harvesting 	them •. This 	will 	occur
because 	the 	logger 	will 	earn 	at 	least 	some 	income 	over 	and 	above
his 	costs 	(or 	at 	a minimun, 	earn 	a 	normal 	profit) 	by 	harvesting
the 	tract.lli
Conversely, 	suppose 	that 	for 	a 	second 	type 	of 	land 	the 	cost
of 	harvesting 	the 	trees 	on 	the 	parcel, 	including 	a 	normal 	profit,
is 	greater 	than 	the 	value 	of 	the 	trees 	as 	logs. 	In such 	a 	case
.w The 	precise 	level 	where 	the 	stumpage 	fee 	is 	set 	in 	the 	range
between 	zero 	and 	the 	economic 	rent 	associated 	with 	the 	piece
of 	land 	in question 	only affects 	the 	distribution 	of 	wealth
between 	the 	owners 	of 	the 	land -- 	usually Canadian 	provinces
-- 	and 	the 	loggers. 	If 	the 	stumpage 	fee 	is 	set 	equal 	to 	the
economic 	rent, 	the 	owner 	of 	the 	land 	will 	obtain 	all 	of 	the
economic 	rent. 	If 	the 	stumpage 	fee 	is 	set 	at 	zero, 	the
logger 	will 	obtain 	all 	of 	the 	economic 	rent.
As 	discussed 	in 	the 	appendix, 	an 	appraisal 	system 	that
charges 	stlDpage 	fees J:.!! excess 	of 	possible 	positive 	economic
rents 	associated with 	a 	parcel 	of 	land would 	deter
developnent 	of 	that 	parcel. 	An 	excessive 	stlDpage 	charge
would 	result 	in 	a 	higher 	market 	price 	for 	logs 	and 	would 	be 	a
cost, 	not 	a 	SUbsidy, 	to sawmills.
We 	note 	that 	the Canadian 	appraisal 	system 	actually could
result 	in less 	timber 	being 	cut 	(thus 	contributing 	to 	higher
prices) 	if 	the 	marginal 	parcel 	of 	land 	is 	not 	allocated 	to
the most 	efficient 	harvester 	of 	that 	land. 	Since 	the
marginal 	parcel 	is 	that 	parcel 	on 	which 	the 	revenues 	from
harvesting 	would 	just 	cover 	the 	costs 	of 	the most 	efficient
harvester, 	assigning 	the 	rights 	to 	a 	harvester 	with 	higher
costs may mean 	that 	the 	available 	revenues 	are 	not 	sufficient
to 	induce 	that 	harvester 	to 	cut 	the 	timber.
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that 	parcel 	of 	land 	will 	not 	be 	logged 	even 	if 	the 	stumpage 	fee
is 	zero. 	Only a 	posi ti ve 	payment 	by 	the 	landowner 	(gover nment)
could 	induce 	the 	logging 	company 	to 	harvest 	the 	timber. 	Indeed,
this 	is 	what 	distinguishes 	the 	stumpage 	fees 	from 	a 	sUbsidy. 	A
true 	subsidy 	would 	exist 	if, 	for 	example, 	the 	Canadian 	government
agreed 	to 	pay 	loggers 	a 	specified 	amount 	for 	each 	tree 	that 	was
harvested. 	In such 	a 	case, 	some 	tracts 	of 	timberland 	would 	be
cut 	that 	otherwise 	would 	have 	been 	left 	standing. 	This 	would
occur 	in 	instances 	in which 	the 	subsidy would more 	than 	overcome
the 	amount 	by which 	the 	harvesting 	costs 	exceeded 	the 	predicted
revenue 	from 	sale of 	the 	logs. 	This 	situation 	differs 	from 	the
circumstances 	under 	scrutiny 	here 	because 	the Canadian 	government
is 	not 	allE!ged 	to make 	payments 	to 	loggers 	for 	trees 	cut, 	and
there 	is 	no 	change 	in 	the 	profitability 	of 	harvesting marginal
tracts.
While 	the 	systems 	used 	to 	establish stumpage 	fees 	in 	the
United States 	and Canada 	are 	different, 	the 	results 	are 	the 	same,
namely, 	that 	the "stumpage 	fee, 	so 	long 	as 	it 	is 	in 	the 	range
described 	above, 	does 	not 	affect 	the 	quantity 	of 	timber 	cut.
Under 	the 	United States' 	competitive 	auction system, 	each
potential 	logger 	will 	compute, 	for 	each 	parcel 	of 	land 	offered
for 	logging, 	the 	net 	benefits 	from 	logging 	that 	tract. 	T~e
logger 	will 	do 	this 	by 	estimating 	the 	expected 	value 	of 	the 	logs
that 	it 	expects 	to 	cut 	over 	the 	life 	of 	the 	contract 	and 	subtract
fran 	this 	amount 	the 	expected 	costs, 	inclUding 	a 	normal 	profit 	of
harvesting 	these 	logs. 	If 	the 	difference 	is 	positive, 	indicating
that 	harvesting would 	be 	profitable, 	the 	firm 	will 	bid 	for 	the
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right 	to 	log 	that 	tract. 	If 	the 	difference 	is 	negative, 	it 	will
not 	place 	a 	bid. 	Under 	the 	British ColtJllbia 	appraisal 	system, 	a
logger 	will 	also 	be 	interested 	in 	harvesting 	any 	plot 	on 	which
the 	expected 	revenue 	from 	selling 	the 	logs 	to 	be 	harvested
exceeds 	the 	costs 	of 	harvesting 	them 	-- 	that 	is, 	if 	there 	is 	a
positive 	economic 	rent 	associated 	with 	harvesting 	the 	plot. 	This
would occur 	if 	the 	appraisal 	system 	permitted 	the 	logger 	to 	keep
sane 	portion 	of 	the 	economic 	rent. 	As 	a 	resul t, 	the 	logger makes
more 	money 	if 	the 	parcel 	is 	harvested. 	However, 	if 	the 	revenue
from 	selling 	the 	trees 	is less 	than 	the 	harvesting 	costs, 	the
logger 	would 	lose money 	by 	harvesting 	the 	tract 	and 	therefore 	he
will 	not 	har ves t.
Thus, 	under 	both 	the Canadian 	and 	United 	States' 	systems,
timberland 	will 	be 	logged 	if -- 	and 	only 	if 	-- 	the 	price 	that 	can
be 	received 	for 	the 	logs 	is 	greater 	than 	or 	equal 	to 	the 	costs 	of
logging 	the 	land, 	including 	a 	normal 	profit -- 	that 	is, 	if 	there
is 	a 	positive 	economic 	rent. 	The 	only difference 	is 	that 	under
the Canadian system, 	if 	there 	is 	"underappraisal," 	more 	of 	the
"economic 	rent" 	will 	90 	to 	the 	loggers 	and 	less 	to 	the 	owners 	of
the 	land.
The 	crucial 	point 	is 	that 	the 	Canadian 	stumpage 	fee 	system
does 	not 	lead 	to more 	parcels 	of 	timberland 	being 	developed.
Consequently, 	it 	does 	not 	affect 	the 	quantity of 	logs
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harvested •.l2I 	It 	therefore 	will 	not 	affect 	the 	price 	paid 	for
logs. 	This 	is 	because 	a 	harvester 	that 	sells 	logs 	will 	sell 	at
the 	highest 	price 	it 	can 	obtain. 	With 	a 	given 	quantity of 	logs,
the maxim\D 	price 	for 	whi ch 	logs 	can 	be 	sold 	is 	determined 	by 	the
demand 	(more 	technical-ly 	the 	demand 	schedule) 	for 	logs 	which, 	as
discussed 	previously, 	is 	not 	affected 	by 	the 	st\J1lpage 	fee
system. 	Since 	the 	quantity of 	logs 	harvested 	also 	is 	not
affected 	by 	the 	system 	at 	issue 	in 	this 	proceeding, 	there 	is 	also
no 	effect 	on 	the 	price 	at 	which 	logs 	are 	sold 	to 	sawmills. 	Given
1§./ The 	typical 	harvesting 	agreement 	both 	in 	the 	United 	States
and 	in Canada 	calls 	for 	a 	certain 	quantity 	of 	timber 	to 	be
cut 	over 	a 	period 	of 	several 	years. 	The 	harvester 	is 	gi ven
latitude 	in 	deciding 	how much 	to 	cut 	in 	any 	given 	year 	but
less 	latitude 	in 	cutting 	the 	required 	nlDDber 	of 	trees 	ove-r
the 	life 	of 	the 	contract. 	The 	analysis 	contained 	in 	the
appendix does 	not 	consider 	the 	pattern 	of 	harvesting 	over 	the
life 	of 	the 	contract. 	The 	length 	of 	the 	contract 	is 	treated
as 	the market 	period 	and 	the 	analysis 	simply demonstrates
that 	the 	total 	number 	of 	trees 	harvested over 	the 	term 	of 	the
contract 	is 	not 	affected 	by 	whether 	an 	auction system 	or 	the
Canadian 	allocation 	system 	is 	used.
Technically, -to 	the 	extent 	that 	the 	Canadian 	system 	in 	fact
amounts 	to 	a 	proportional- division 	of 	inframarginal 	rents
between 	loggers 	and 	the 	government, 	the 	introduction 	of 	this
added 	intertemporal 	aspect 	should 	not 	change 	the 	resul ts.
The 	same 	harvesting 	pattern 	over 	the 	term 	of 	a 	contract 	would
occur 	under 	the Canadian 	allocation system 	as 	under 	an
auction 	system. 	Under 	an 	auction system, 	a 	harvester 	will
select 	that 	pattern 	of 	harvesting 	that maximi zes 	the 	expected
present 	value 	of 	the 	stream 	of 	net 	benefits 	from 	harvesting
trees 	over 	the 	life 	of 	the 	contract -- 	where 	the 	value 	of 	the
net 	benefit 	at 	any 	time 	is 	the 	difference 	between 	the 	revenue
received 	from 	the sale 	of 	the 	trees 	less 	the 	cost 	of
harvesting 	trees 	at 	that 	time. 	Onder 	a 	system 	in which 	the
logger 	keeps 	a 	proportion 	of 	the 	economi c 	rent 	generated 	by
cutting a 	tree, 	the 	pattern 	that 	maximizes 	the 	expected 	value
of 	the 	stream 	of 	discounted 	economic 	rents 	over 	the 	life 	of
the 	contract 	will 	be 	selected. 	5 ince 	economic 	rent 	at 	any
time 	equals 	revenue 	minus 	costs 	at 	that 	time, 	the 	same
pattern 	of 	harvesting 	will 	be 	selected 	under 	one 	system 	as
under 	the 	other.
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the 	alleged 	stumpage 	subsidy 	has 	no 	impact 	on 	the 	sawmills'
costs, 	it 	wil~ 	have 	no 	effect 	on 	the 	sawmills' 	output, 	the
quanti ty and 	pr i ce 	of 	lumber 	exports 	to 	the 	United 	States, 	or 	the
price 	of 	ItJDber 	products 	in 	the United States.
Petitioner's 	belief 	that 	stumpage 	fees 	are 	costs 	that 	affect
the 	price 	of 	logs may 	derive 	frOD 	the 	fact 	that 	for 	the
individual 	firm 	any stumpage 	fee 	is 	indeed 	a 	cost. 	But 	for 	the
industry 	as 	a 	whole 	the 	sttJDpage 	fees 	mer·ely 	represent 	transfer
payments 	from 	logging 	firms 	to 	landowners. 	The 	pro~sition that
these 	-economic 	rents· 	do 	not 	affect 	the 	price 	of 	the 	product 	is
widely and 	coJIDDonly discussed 	by 	modern 	eco~mists•.11I 	Indeed,
the 	concepts 	have 	long 	been 	established 	economic 	principles.W
I!.I 	- [WI e 	must 	avoid our 	old 	enemy 	'the 	fallacy 	of
com~sition.' 	What 	appears 	as 	a 	cost 	of 	production 	to 	each
and 	every 	small 	firm 	using a 	particular 	kind 	of 	land 	[tree]
may, 	as 	we 	have 	seen, 	be 	to 	the 	whole 	communi ty merely a
derived 	price-determined 	rent 	expense 	rather 	than 	a 	price-
determining one. 	More 	than 	that, 	suppose 	the 	land 	is 	[trees
are] 	specialized 	and 	can 	be 	used 	only 	for 	the 	production 	of
one 	industry. 	If 	a 	grade 	of 	land 	[type 	of 	tree] 	is
inelastically supplied 	to 	one 	industry 	and, 	having 	no 	place
to 	go, 	will 	always 	work 	for 	whatever 	it 	can 	earn 	there, 	its
return may appear 	to 	every 	small 	firm 	as 	a 	cost 	li ke 	any
other. 	But 	as 	scientific observers 	of 	the 	whole 	industry, 	we
still 	must 	recognize 	that 	the 	land 	[tree] 	return 	is 	a 	price-
determined 	rent 	and 	not 	price-determining 	cost. - 	P.
S CIllue!son, 	Economi cs 	539 	(8th 	ed. 	1970).
1!1 	-Rent, 	it 	is 	to 	be 	observed, 	therefore, 	enters 	into 	the
composition 	of 	the 	price 	of 	commodities 	in 	a 	different 	way
from 	wages 	and 	profit. 	High 	or 	low 	wages 	and 	profit 	are 	the
causes 	of 	high 	or 	low 	price; 	high 	or 	low 	rent 	is 	the 	effect
of 	it. 	It 	is 	because 	high 	or 	low 	wages 	and 	profit must 	be
paid, 	in 	order 	to 	bring a 	particular 	canmodity 	to market,
that 	its 	price 	is 	high 	or 	low. 	But 	it 	is 	because 	its 	price
is 	high 	or 	low; 	a 	great 	deal 	more, 	or 	very 	li ttle more, 	or 	no
more, 	than 	what 	is 	sufficient 	to 	pay 	those wages 	and 	profit,
that 	it 	affords 	a 	high 	rent, 	or 	a 	low 	rent, 	or 	no 	rent 	at
all.- 	A. 	Smith, 	The Wealth 	of 	Nations 	145-146 	(1776). 	See
also D. 	Ri cardo, 	The 	P ri nci ples 	of Poli tical Economy 	and-
Taxation 	(1817) 	(1962 	reprlnt).
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Finally, 	it 	is 	important 	to 	note 	that 	the 	foregoing
conclusion 	is 	not 	affected 	by 	the 	possibility 	that 	sane 	or 	all 	of
the 	firms 	that 	harvest 	logs 	may 	be 	vertically 	integrated 	into
lumber 	production. 	Whil e, 	on 	the 	surface, 	it 	might 	appear 	t hat 	a
low 	stumpage 	fee 	paid 	by 	an 	integrated 	firm 	Would 	give 	its
sawmill 	operations 	access 	to 	unusually low 	cost 	logs, 	this 	does
not 	turn 	out 	to 	be 	the 	case. 	For 	every 109 	that 	the 	integrated
firm 	uses 	in 	its 	sawmill, 	it 	gives 	up 	the 	revenue 	it 	could 	have
recei ved 	by 	sell ing 	that 	log 	in 	the 	mar ket •.12I 	I n order 	f or 	the
vertically 	integrated 	firm 	to maximize 	its 	profits, 	it 	will 	sell
the 	logs 	it 	cuts 	or 	buy 	additional 	logs 	in 	the 	market 	until 	the
value 	of 	using 	another 	log 	in 	its 	sawmill 	operations 	is 	equal 	to
the 	val ue 	of 	sell ing 	another 	log, 	i. e., 	the 	mar ket 	pr i ce 	of
logs. 	In 	essence, 	the 	vertically'integrated 	firm 	will 	not 	use 	an
internally-produced 	log 	in 	its 	sawmill 	operations 	unless 	the
value 	of 	that 	log 	put 	to 	that 	use 	is 	at 	least 	as 	great 	as 	the
price 	the 	firm 	could 	have 	received 	by 	selling 	that 	log 	to 	someone
else. 	This 	is, 	of 	course, 	the same 	rule 	that 	an 	unintegrated
firm 	uses: 	it 	buys 	logs 	so 	long 	as 	the 	value 	of 	the 	log 	for
processing 	in 	its 	sawmill 	exceeds 	the 	price 	it must 	pay 	to
acquire 	that 	log. 	Thus, 	the 	processing 	division 	of 	the
vertically 	integrated 	firm 	is 	operating 	in 	a manner 	fully
equivalent 	to 	that 	of 	an 	independent 	sawmill 	regarding 	the
quantity 	of 	lumber 	produced 	and 	any 	resulting exports 	to 	the
Onited States. 	Any 	higher 	profits 	that 	the 	firm 	earns 	because 	of
ill In 	economics, 	this 	is 	the 	concept 	of 	·opportunity cost.· 	~
Appendi x 	at 	10.
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the 	system 	of 	allocating 	stumpage 	rights 	are 	attributable 	to 	the
logging 	division 	of 	the 	firm 	and 	do 	not 	affect 	the 	quantity 	of
logs 	processed, 	the 	amount 	of 	lumber 	produced, 	or 	consequently,
the 	export 	trade 	to 	the 	United 	States.1Q!
The 	Commission 	agrees 	with 	the 	economic 	analysis 	contained
in 	the 	Preliminary Determination 	that 	the 	alleged 	benefit
resulting 	from 	lower 	stumpage 	fees, 	if 	it 	exists, 	would 	have 	no
effect 	on 	the 	price 	of 	logs 	or 	lumber 	imported 	into 	the 	United
States. 	The 	Preliminary Determination 	does 	not, 	however, 	follow
through 	to 	state 	expressly 	what 	it 	necessarily 	implies, 	namely,
that 	any 	stumpage 	price 	differential 	that 	may' exist 	is 	not 	a
SUbsidy 	to 	lumber 	producers 	and 	therefore 	does 	not 	warrant, 	as 	a
matter 	of 	law 	or 	economics, 	the 	imposition 	of 	a 	countervailing
duty 	on 	lumber 	imports.
We 	recognize 	that 	the 	Department 	concluded 	in 	the 	Carbon
Steel 	cases 	that 	-benefits 	bestowed 	upon 	the 	manufacturers 	of 	an
input 	do 	not 	flow 	down 	to 	the 	purchaser 	of 	that 	input 	if 	the 	sale
is 	transacted 	at 	arm's-length.-~ 	The Commission 	agrees 	with
the 	Department's 	approach 	in 	those 	cases 	that 	an 	assessment 	is
required 	of 	the 	economic 	effects 	resulting 	from 	a 	benefit
1Q! 	It 	should 	be 	noted 	that 	the 	integrated 	firm may 	be 	able 	to
enhance 	its 	profits 	to 	the 	extent 	that 	the 	integrated
structure 	allows 	for 	increased 	efficiencies. 	Such
efficiencies 	might 	arise, 	for 	example, 	from 	reduction 	of
-transaction 	costs· 	due 	to 	the 	close 	association 	and
coordinated 	management 	of 	the 	logging 	and 	sawmill
operations. 	This 	profit, 	of 	course, 	is 	not 	related 	to 	the
existence 	of 	the 	stumpage 	fee 	system 	and 	therefore 	has 	no
bearing 	on 	the 	instant 	proceeding.
jl/ Certain Carbon Steel 	Products 	from 	Belgium, 	et. 	al., 	47 	Fed.
Reg. 	39,304, 	39,351 	(Sept. 	7, 	1982).
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conferred on 	a 	manufacturer 	of 	a 	product 	that 	is 	an 	input 	for 	the
imported 	product 	examined 	in 	the 	countervailing 	duty
proceeding. 	The 	Commission 	questions 	whether 	the 	presence 	of 	an
arm's-length 	sale 	in 	the 	transaction 	is 	dispositive 	of 	whether 	an
economic 	benefit 	passes 	from 	one 	stage 	of 	production 	to 	the
next. 	The 	economic 	analysis 	of 	these 	issues 	generally 	is 	far
more 	complicated 	than 	this. 	In 	the 	present 	case, 	however, 	it 	is
clear 	that 	any 	benefit 	associated 	with 	lower 	stunpage 	fees, 	if 	it
exists, 	will 	have 	no 	impact 	at 	later 	stages 	of 	production.
Consequently, 	the Commission 	urges 	that 	the Department ma ke 	an
express 	finding 	on 	this 	point 	in 	the 	present 	proceeding, 	and 	hold
that 	imported 	lumber 	does 	not 	benefit 	from 	a 	SUbsidy.
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III. 	THE 	EVIDENCE 	AND ARa1MENTS 	OFFERED BY PETITIONER
TO PROVE 	AN ALLEGED _SUBSIDY 	ON 	STUMPAGE 	ARE
THEORETICALLY FLAWED AND 	UNPERS CAS IVE.
As 	discussed 	above, 	because 	the Canadian 	stumpage 	fee 	system
does 	not 	aff ect 	the 	quanti ty or 	pr i ce 	of 	logs 	or 	1 umber, 	it 	does
not 	represent 	a 	subsidy. 	Hence, 	as 	the 	Preliminary Determination
recognized, 	there 	is 	no 	basis 	for 	imposing 	countervailing 	duties
on 	imported 	1 umber. 	This 	conci usion 	is 	also 	canpelled 	by 	an
exami nation of 	the 	arguments 	advanced 	by 	Peti tioner 	ins upport 	of
a 	subSidy. 	As 	we 	discuss 	in 	t his 	section, 	these 	ar gunents 	ar e
both 	theoretically 	flawed 	and 	factually 	unsupported. 	They
provide 	no 	basis 	to support 	a 	finding 	of 	subsidy.
A. 	Canadian, 	not 	United States, 	Market-Determined 	Prices
for 	Stumpage Constitute 	the 	Appropriate 	Benchmark
agai ns t 	whi ch 	to Assess 	the 	Existence 	and Magni tude 	of
the Cl aimed 	Subsidy.
The 	Peti tioner' s 	theory 	of 	subsidi zation 	is 	that Canada
ass lJDes 	a 	cos t 	of 	produci ng 	1 umber 	because C anadi an 	1 umber
producers 	receive 	stunpage 	of 	greater 	value 	than 	the 	stumpage
payment 	that 	they make 	in 	exchange. 	Petitioner's 	Brief 	at 	16.
Putting 	aside 	questions 	of 	the 	proper 	statutory 	construction 	of
the 	term 	"assumption 	of" 	a 	cost, 	a 	problem 	inherent 	in
Peti tioner' s 	theory 	is 	identifying 	the monetary 	value 	of 	the
Canadian 	stumpage 	for 	comparison with 	the 	payments 	actually
made. 	The 	Petitioner 	suggests, 	and 	we 	agree, 	that 	the
appropriate 	benchmark 	for 	comparison 	is 	the 	amount 	that 	the
stunpage 	would 	fetch 	in 	a 	free, 	camnercial 	market.
Petitioner 	incorrectly asserts, 	however, 	that 	the 	relevant
price 	is 	that 	which 	prevails 	in 	the 	"canpetitive United States
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segment 	of· the 	North American 	market.".ll! 	The 	relevant 	market
price 	instead 	is 	what 	the 	stumpage 	would 	bring 	in 	a 	competitive
Canadian 	commercial 	market. 	The 	Department 	correctly 	resolved
this 	issue 	in 	its Preliminary Determination 	by 	concluding 	that 	it
is 	rx:>t 	reasonabl e 	to 	compare U.S. 	mar ket 	pr ices 	f or 	stumpage
rights 	with 	payments 	for 	similar 	rights 	in Canada. 	This 	follows
from 	the 	Petitioner's 	theory 	that 	the 	magnitude 	of 	a 	subsidy 	is
the 	difference 	in 	value 	between what 	is 	given 	and 	received. 	The
difference 	must 	be 	determined 	by 	reference 	to market-determined
payments 	for 	stllDpage 	rights 	in C.anada, 	not 	in 	the United States.
Analogi es 	to Camnerce 	Department 	and 	judi ci al 	precedents
relied 	on 	by 	Petitioner 	do 	not 	justify 	reference 	to United States
prices 	as 	the 	commercial 	benchmark. 	The 	Department, 	for 	example,
has 	decided 	that 	a 	foreign 	government's 	cash 	payments 	to 	reduce 	a
materials 	cost 	is 	countervailable."w 	Since 	the 	cash 	amount
.ll! 	Peti ti oner' s 	B ri ef 	at 	25.
"W See, 	e.g., 	Sodium GltIconate 	from 	the 	European Community, 	46
"FiO. 	Reg. 	58,132 	(November 	30, 	1981) 	(accepting 	a 	suspension
agreement 	in which 	a 	foreign 	producer 	renounced E .C. 	cash
payments) t 	Dextrines 	from Corn Starch From 	the European
CatDntmi ty, 	45 	Fed. 	Reg. 	18,414 	(March 	21, 	1980) 	(f ina!
determination 	that E .C. 	cash 	payments 	to 	a 	dextrines 	producer
were 	a 	subsidY)1 	Dextrines 	from 	Potato Starch 	from 	the
European Camntmity, 	44 	Fed. 	Reg. 	75,135 	(December 	19,1979)1
tanb Meat 	from New 	Zealand, 	46 	Fed. 	Reg. 	58,128, 	58,130
(November 	30, 	19a1) 	(preliminary) 	(terminated 	upon 	withdrawal
of 	petition, 	47 	Fed. 	Reg. 	1316 	(January 12,1982).
The 	Dextrines 	and 	Sodillll Gluconate 	proceedings 	involved 	a
government's 	cash 	payment 	to 	producers 	based 	on 	the 	quantity
of 	a 	raw 	material 	purchased. 	In 	these 	cases, 	the 	foreign
government 	provided 	a 	cash 	refund 	equal 	to 	the 	difference
between 	the 	price 	.. floor" 	and 	the 	lower 	competitive 	world
price. 	While 	this 	lower 	world 	price 	was 	perhaps 	the European
CamDtmity's motive 	for 	the 	payments, 	the Commerce Department
did 	not 	u~dertake to measure 	world 	prices. 	It 	countervailed
only against 	the 	amount 	of 	the 	payments 	and 	measured 	the
SUbsidy on 	the 	amount 	of 	the 	cash 	payment 	allocated 	to 	the
tmi ts 	produced.
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could 	be 	the 	measure 	of 	the 	subsidy, 	however, 	those
determinations 	were 	very 	simple" and 	are 	not 	pertinent 	or 	useful
to 	resolving 	the 	issue 	presented 	here.
In 	other 	circumstances 	involving 	the 	question 	whether 	a loan
was 	made 	on 	terms 	winconsistent 	with 	commercial 	considerations,ft
19 	U.S.C. 	S 1677(5) (B) (i), 	the 	sUbsidy 	has 	been 	held 	to
constitute 	the 	difference 	between 	the 	rate 	to 	the 	favored 	party
versus 	the 	camnercial 	market 	rate 	available 	to 	him.!!! 	In 	one 	of
these 	cases 	the 	court 	looked 	to 	the 	lending 	rate 	available 	to 	a
multinational 	tire 	producer 	in 	its 	home market 	rather 	than 	the
rate 	available 	in Canada 	where 	the 	allegedly 	subsidized 	plant 	was
constructed. 	This 	decision, 	however, 	does 	not 	support 	the 	use 	of
Uni ted 	States 	pr i ces 	as 	the 	commerci al 	benchmar k for 	stumpage
!iI In Michelin Tire 	Corp. 	v. 	United 	States, 	C.I.T. 	,
(Slip. 	Ope 	81-94) 	(October 	26, 	1981), 	the 	court 	upheTaan
affirmative 	subsidy determination, 	but 	remanded 	for
recalculation 	of 	its 	value. 	It 	concluded 	that 	a 	loan 	from 	a
Nova 	Scotia 	crown 	corporation 	at 	6% 	interest 	for 	construction
of 	a 	tire 	plant 	was 	preferenti al, 	and 	valued 	the 	subsidy 	as
the 	difference 	between 	this 	rate 	and 	the 	rate 	Michelin would
have 	paid 	a 	commercial 	lender 	in 	the 	lending market 	available
to Michelin. 	Slip Ope 	at 	14-20. 	Since Michelin 	could 	have
borrowed 	at 	7.56% 	in 	the Eurobond market, 	the 	1.56%
difference 	measured 	the 	subsidy. 	The 	subsidy calculation was
J!2S based on U.S. 	caumer ci al 	lending 	rates.
In ASG 	Industries, 	Inc. 	v. 	United 	States, 	82 	Cust. 	Ct. 	101,
107 	(C.O. 	4794) 	(1979), 	appeal 	dismissed, 	the Customs Court
found 	a 	subsidy 	in 	three 	I tar I an 	regional 	developnent
programs, 	consisting 	of 	(1) 	capital 	grants 	for 	new 	plants:
(2) 	preferential 	financing 	at 	7.5% 	(less 	than 	the 	10.5%
commercial 	financing 	then 	available 	in 	Italy): 	and 	(3)
preferentially-reduced 	contributions 	to 	welfare
organizations. 	Apart 	fram 	the monetary 	grants, 	the 	alleged
subsidies 	were 	preferential 	financing 	and 	reduced
contributions, 	as measured 	by 	commerciall~availablelending
rates 	or 	generally- imPJsed 	requi rements 	of 	contribution 	in
Italy. 	~ 	also ASG 	Industries," Inc. 	v. 	United States, 	610
F .2d 	770 	(C.C.P.A. 	1979) 	(German Float 	Glass).
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prices, 	because 	the 	two 	situations 	are 	factually 	quite
different. 	The 	tire 	producer 	could 	borrow money 	in 	one 	country
to 	build 	a 	plant 	in Canada: 	by 	contrast, 	a Canadian 	tree
harvester 	could 	not 	shift 	his 	operation 	to 	the United States 	and
begin 	cutting 	trees 	in 	this 	country 	to 	take 	advantage 	of 	United
States 	stlJDpage 	prices, 	and 	remain 	a Canadian 	producer. 	The
proper 	interpretation 	of 	these 	legal 	precedents 	is 	that 	the
correct 	benchmark 	with 	which 	to 	identify 	and 	evaluate 	the
magnitude 	of 	the 	alleged Canadian 	stumpage 	subsidy 	is 	the 	market-
determined 	price 	in Canada 	for 	st LlDpage. 	As 	the 	following
subsections 	demonstrate, 	the 	only proper 	use 	of 	United 	States
prices 	in 	this 	proceeding 	would 	be 	as 	a 	surrogate 	for 	otherwise
unestimable Canadian market-determined 	prices 	and, 	before 	such
reference 	would 	be 	appropriate, 	certain 	adj ustments 	to 	the 	prices
are 	necessary 	to make 	the Canadian 	and 	United 	States 	data
reasonably 	canparable.
B. 	Uncritical 	Reference 	to 	United 	States 	Stumpage 	Prices 	is
Inappropriat;e 	Because 	it Does Not Account 	for 	the
Principle of 	Comparative 	Advantage.
The 	Peti tion' s 	rational e 	for 	s uggesti ng 	that 	Uni ted 	States
prices 	provide 	a 	valid 	proxy f or Canadian mar ket-determined
pr i ces 	is:
Using 	data 	from 	U.s. 	sales 	to 	help determine 	true 	market
value 	in Canada 	is 	appropriate 	because 	the 	softwood 	lLlDber,
shake 	and 	shingle, 	and 	fence 	products 	made 	fran 	stumpage 	in
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the 	two markets 	are 	sold 	into 	a 	conunon 	demand 	market.
Product 	prices 	in 	this 	common 	demand market 	are 	the 	i~7is for
which 	stumpage 	value 	is 	determined. 	Petition 	at 	28.
Because 	the 	st 1.Dpage 	prices 	differ 	on 	the 	average 	between 	the 	two
countries, 	Petitioner 	concludes 	that 	there 	is 	subsidy 	in 	the
amount 	of 	the 	difference.
Petitioner's 	argument, 	however, 	is 	theoretically 	flawed.
The 	arg1.Dent 	appears 	to 	be 	based 	on 	a 	variant 	of 	the 	ftfactor
price 	equalization 	theorem,- 	which 	states 	that, 	given 	a 	number 	of
assumptions 	including 	the 	absence 	of 	transportation 	costs 	and 	the
free 	flow 	of 	goods 	between 	nations, 	the 	factors 	of 	production
that 	produce 	these 	goods 	will 	equalize 	in 	price, 	even 	if 	the
factors 	of 	production 	themselves 	do 	not 	trade 	between 	nations.
Petitioner 	apears 	to 	extend 	this 	theorem 	back 	through 	another
stage 	of 	produetion 	and 	argue 	that 	not 	only will 	log 	prices
equalize 	as 	a 	result 	of 	the 	free 	trade 	of 	lumber 	and 	other 	final
products 	but 	also 	that 	stumpage 	fees, 	which 	are 	a 	factor 	in 	the
production 	of 	logs, 	will 	equalize 	in 	price 	as 	well.
12/ The 	Petitioner 	also 	asserts 	that 	if North America were 	an
unconstrained 	supply market 	for 	stumpage, 	the 	prices 	for
stumpage would 	be 	consistent 	in 	the 	O.S. 	and Canada.
Petition 	at 	28. 	If 	by 	an 	-unconstrained 	supply market 	for
st umpage- 	the 	Peti tioner means 	that 	logs 	can 	trade 	freely
between 	the Oni ted 	States 	and Canada 	and 	that 	as 	a
consequence 	the 	price 	of 	logs 	(possibly 	adjusted 	for
transportation 	costs) 	would 	equalize 	between 	the 	two 	nations
and 	that 	this 	would 	tend, 	all 	other 	things 	being equal, 	to
equalize 	stumpage 	fees 	in 	a 	competitive 	auction 	for 	stumpage,
then 	the 	Petitioner's 	inference 	is 	valid. 	The 	Petitioner
acknowledges, 	at 	28, 	however, 	that 	the 	supply market 	is 	rot
unconstrained 	because Canada 	limits 	the 	export 	of 	logs 	to 	the
Oni ted 	States.
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The 	factor 	price 	equalization 	theorem 	requires 	a 	number 	of
assumptions 	even when 	applied 	to 	a 	simplified 	two-commodity, 	two-
country, 	two-factor 	world. 	In 	a 	world 	with 	more 	than 	two
countries, 	goods, 	and 	factors, 	the 	assumptions 	required 	for 	the
theorem 	to 	apply 	are 	more 	numerous, 	and 	less 	likely 	to 	occur.
Bere, 	in 	addition 	to 	logs, 	there 	are 	many 	factors 	that 	go 	into
the 	production 	of 	lumber, 	including 	labor, 	various 	energy 	inputs,
capital, 	and 	land. 	Under 	the 	economic 	theory 	advanced, 	there
must 	be 	at 	least 	as 	many 	goods 	with 	equal 	prices 	as 	there 	are
immobile 	factors 	of 	production 	in 	order 	to support 	any 	plausible
assertions 	regarding 	equality 	in 	the 	prices 	of 	the 	factors.li/
Given 	this 	fact, 	one 	cannot 	conclude 	that 	log 	prices 	are
equalized 	between 	the United 	States 	and 	Canada 	and, 	with 	log
price 	differences, 	one 	would 	also 	expect 	stumpage 	fee 	price
differences.
In 	addition 	to 	the 	theoretical 	difficulties 	associated 	with
Petitioner's 	argument, 	there 	appears 	to 	be 	no 	factual 	support 	for
the 	assertions. 	'The 	empirical 	test 	of 	Petitioner's 	theor~ is
whether 	factor 	price~: especially 	log 	prices, 	equalize 	between
the 	United 	States 	and 	Canada. 	Apparently, 	however, 	they 	do
not. 	Data 	collected 	by 	the 	ITC 	staff 	reveal 	that 	log 	prices,
adjusted 	for 	species 	and 	currency 	differences, 	are 	about 	15 	to 	25
j!/ Paul 	Samuelson 	was 	the 	most 	influential 	contributor 	to 	this
literature. 	See A. 	Takayama, 	International Trade 	552-575
(1972), 	for 	a 	textbook 	treatment 	of 	this 	literature. 	An
important 	restriction 	in 	the 	many 	good-factor 	world 	is 	that
there 	must 	be 	at 	least 	as 	many 	goods 	as 	there 	are 	factors.
j1/ This 	is 	also 	a 	test 	of whether 	the 	factor 	price 	equalization
theorem 	applies 	to 	these 	circumstances.
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percent 	ch~aper in Vancouver 	than 	in 	western Washington 	and
oregon •.w 	This 	evidence 	therefore 	contradicts 	the 	predictions
invited 	by 	Petitioner's 	theory, 	and 	should 	raise 	serious
reservations 	whether 	the 	theory 	is 	validly applicable 	to 	this
complex situation.
The 	difference 	in 109 	prices 	is 	most 	likely explained 	by
comparative 	advantage 	considerations. 	Economic 	theory 	suggests
that 	a 	nation 	generally will 	have 	a 	comparati ve 	advantage 	in
those 	ptoducts 	that 	intensively 	utilize 	those 	factors 	of
production 	that 	it 	possesses 	in 	relative 	abundance •.i2I 	For
example, 	the Beckscher-ohlin 	theorem 	of 	international 	economics
states 	that 	a 	country will 	have 	a 	comparative 	advantage 	and
export 	that 	product 	which 	utilizes 	the 	factor 	of 	production
posses~ed in 	relative 	abundance, 	where 	relative 	abundance 	is
measured 	by 	relative 	prices 	of 	the 	factors •..iQ/
..i§J 	ITC 	332 	Report 	at 	54, 	55.
~ See Bo 	Soderstern, 	International 	Economics 	64-72 	(1970). 	Of
course, 	such 	factors 	woUld 	have 	to 	be 	relatively 	inunobile
(such 	as 	trees 	here) 	or 	else 	they would 	be 	transferred 	to
their 	highest 	use.
2Q/ If 	relative 	abundance 	is 	measured 	in 	physical 	terms, 	then
demand 	differences 	between 	the 	countries 	may 	result 	in 	a
country importi ng 	the 	product 	that 	i ntensi vely 	utilizes 	the
factor 	of 	production 	it 	possesses 	in 	abundance. 	Id.
Although 	Petitioner 	asserts 	that 	the 	United StateSiiSoftwood
lumber 	mills 	have 	a 	natural 	comparative 	advantage over
Canadian 	mills 	(Petitioner's Brief 	at 	2), 	it 	furnishes
neither 	direct 	support 	for 	this 	proposition, 	nor 	offers 	a
pI aus i bl e 	f ram ewor k of 	anal 15 is 	from 	whi ch 	such 	supper t 	may
be 	drawn.
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Assuming Canada 	is 	relatively more 	abundant 	in 	trees 	as 	a
factor 	of 	production 	(where 	relative 	abundance 	might 	be measured
by 	comparing 	harvestable 	trees 	per 	capita), 	then 	Canada 	should
experience 	lower 	competitive market 	prices 	for 	logs 	and 	stumpage
than 	the Uni ted 	States. 	S imply stated, 	if 	there 	is 	a mueh
greater 	supply 	of 	trees 	in Canada, 	the market 	price 	of 	stumpage
and 	logs 	should 	be 	lower. 51/
The 	question 	remains, 	of 	course, 	how 	to 	adj ust 	for
comparative 	advantage 	considerations. 	If 	there 	is 	a 	segment 	of
the 	Canadian market 	in which 	stumpage 	prices. 	are 	determined 	by 	a
competi ti ve 	process 	(e. 9., 	auction), 	then 	the Department 	could
use 	sales 	in 	this 	market 	as 	a 	proxy 	for 	what Canadi an 	mar ket-
determined 	stumpage 	prices 	would 	be 	on 	the 	lands 	currently 	under
its 	appraisal 	system. 	With 	this 	proxy, 	the 	Department 	would'
avoid 	having 	to make 	adjustments 	to 	reflect 	comparative
advantage. 	It would, 	however, 	remain 	necessary 	to make 	other
adjustments 	(described 	in 	the 	following 	subsection), 	to 	account
for 	other 	important 	differences.
If 	sales 	by 	competitive 	auction 	in Canada 	are 	too 	small 	to
serve 	as 	the 	proxy, 	the Department 	would 	need 	to 	look 	to 	prices
in 	another 	country and 	adj ust, 	inter 	ali a, 	for 	comparati ve
advantage. 	In 	determining whether 	the United States 	is 	the 	best
candidate 	for 	this 	purpose, 	the 	Department 	initially should
51/ The 	Canadi an 	export 	ban 	on 	logs 	would 	further 	tend 	to 	protect
this 	comparative 	advantage 	and 	preserve 	it 	for 	Canadian
sawmills. 	Lower 	prices 	for 	logs 	in Canada 	would 	imply 	that
the marginal 	sawmill 	in Canada 	is 	less 	efficient 	than 	the
margi nal 	sawmill 	in 	the 	U.S.
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evaluate 	the 	relative 	abundance 	of 	trees, 	e.g., 	trees 	per 	capita
in 	the 	United 	States 	versus 	Canada. 	If 	these 	ratios 	are
approximately 	equal 	for 	the 	two 	countries, 	comparative 	advantage
adjustments 	may 	be 	unnecessary. 	However, 	if 	the 	ratios 	are
significantly 	different, 	then 	the 	Department 	shOUld 	consider
whether 	another 	country 	would 	provide 	a 	better 	source 	for
surrogate 	Canadian 	prices 	than 	the 	United 	States. 	Again, 	the
adjustments 	identified 	below 	still 	would 	be 	required.
Thus, 	at 	a 	=dnimum, 	economic 	theory makes 	clear 	that
fundamental 	comparative 	advantage 	considerations 	must 	be 	taken
into 	account 	and 	adjustments 	made 	where 	appropriate. 	This
approach 	is 	fully 	consistent 	with, 	and 	indeed 	necessary, 	in 	order
to 	fulfill 	the 	purpose 	of 	the 	law 	being 	invoked. 	A counter-
vailing 	duty 	should 	not 	~e applied 	against, 	and 	consumers 	denied
the 	benefits 	of, 	imports 	whose 	lower 	prices 	reflect 	another
nation's 	comparative 	advantage.
C. 	Use 	of 	United 	States 	Stumpage 	Prices 	as 	a 	Surrogate 	for
Canadian 	Market-Oetermined 	Prices 	Requires Adjustments
to 	be 	Made 	Accounting 	for 	Differences 	Both 	in 	the
Relative Value 	of Stumpage 	and 	in 	the 	Nature 	of 	the
Stumpage 	Harvesting 	Rights 	Sold.
In 	considering 	prices 	from 	another 	country, 	adjustments 	must
also 	be 	made 	for 	differences 	in 	value 	due 	to 	differences 	in 	the
type 	of 	timber 	sold 	and 	in 	the 	nature 	of 	the 	rights 	granted. 	The
market 	value 	of 	a 	plot 	of 	timberland 	depends 	on 	a 	host 	of
variables, 	such 	as 	the 	species 	of 	timber, 	its 	density, 	its
accessibility, 	its 	proximity 	to 	sawmills 	and 	markets, 	and 	the
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difficulty of 	logging 	on 	the 	terrain. 	Petition 	at 	24 	note 	1. 	In
the United States, 	these 	factors 	are 	reflected 	in 	wide 	variations
in 	competitive 	market 	prices 	paid 	for 	stumpage 	in 	different
areas.~ 	Even 	for 	the 	same 	species 	of 	tree, 	the market 	prices
per 	thousand 	board 	feet 	of 	stumpage 	di verge 	wi dely. 	Moreover,
the 	species 	mix 	in 	the United States 	Pacific Northwest 	tends 	to
be 	more 	valuable 	than 	the 	species 	mix 	in 	British Coltlllbia.ll!
The 	Preliminary Determination 	recogni zes 	the 	significance 	of
these 	differences 	and, 	in 	the 	Commission's 	view, 	correctly
concludes 	that 	appropriate 	adjustments 	to 	the 	data 	are 	necessary
if 	cross-border 	stumpage 	price 	comparisons 	are 	to 	be 	made •.?!! 	Of
course, 	acquisition 	of 	all 	the 	necessary 	prices 	and 	costs 	for
adj ustments 	would 	be 	complicated 	and 	difficul t.
2l/ Petitioner 	furnished 	graphs 	showing 	that 	the 	average 	price
for 	st umpage 	in 	western Washington 	and Oregon 	was 	bid 	up 	to
the 	$400 	per 	MBF 	level 	in 1919-1980, 	the 	average 	pr ices 	in
eastern Was hington 	and Oregon 	were 	under 	$200/MBF, 	in 	the
Rocky 	Mountain 	area 	prices 	ranged 	from 	$25-15/MBF, 	in 	the
south 	prices 	fluctuated 	from 	$100-200/MaF 	and 	in 	the 	eastern
region 	prices 	were 	in 	the 	$25-50/MBF 	range. 	Joint 	Report 	at
16a-16f.
21/ ITC 332 	Report 	at 	51. 	The 	Report 	states:
In 	general 	the species 	mix 	of 	the 	U.S. 	Pacific Northwest
is 	considered more 	valuable 	than 	that 	of 	British
CollJllbi a. 	• 	• 	• 	Because 	of 	these 	and 	other 	differences,
an 	adjustment 	of 	the 	average 	British Col\m\bia 	prices
must 	be made 	to 	put 	them 	on 	a 	comparable 	basis 	with 	U.S.
figures.
2iI 	48 	Fed. 	Reg. 	10,403-04. 	In 	addition, 	the 	Preliminary
Determination observes 	that" it 	has 	been 	the Department's
policy 	not 	to 	use 	cross-border 	comparisons 	in 	establishing
cormnercial 	benchmarks." 	~ at 10,403.
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In 	addition 	to 	differences 	in 	the 	value 	of 	the 	stumpage
itself, 	adjustments 	are 	necessary 	to 	account 	for 	differences 	in
the 	nature 	of 	the 	stumpage 	harvesting 	rights 	that 	typically 	are
granted 	in 	the 	United 	States 	and 	Canada. 	If 	anything, 	these
differences 	are 	greater 	than 	the 	Preliminary Determination
suggests.ji! 	For 	example, 	in 	the 	United 	States, 	along 	the
Pacific Northwest 	coast, 	the 	Forest 	Service 	appraises 	stumpage 	on
the 	basis 	of 	the 	value 	of 	the 	end-products 	estimated
approximately 	at 	the 	dat& 	of 	sale, 	but 	the 	stumpage 	sale
contracts 	authorize 	cutting 	during 	a 	term 	that 	may 	be 	as 	long 	as
seven 	years.~ 	In 	the 	northwestern 	United 	States 	east 	of 	the
Cascade Mountains, 	the 	Forest Service 	includes 	an 	escalation
clause 	in 	the 	stumpage 	contracts 	based 	on 	future 	lumber 	prices.
The 	ITC 	staff 	concluded, 	however, 	that 	under 	the 	escalation
clause, 	a 	purchaser 	can 	still 	realize 	-50 	percent 	of 	any 	increase
in 	timber 	value.-21I
By 	contrast, 	the 	British Columbia 	appraisal 	system, 	for
example, 	adjusts 	for 	changes 	in 	end-product 	prices 	on 	a 	monthly
basis.2!/ 	Such 	adjustments 	are 	made 	if 	lumber 	prices 	change 	by
$1 	per 	cubic 	meter. 	In 	addition 	to 	the 	monthly 	adjustment, 	there
j2/ The 	Preliminary Determination's 	only 	observation 	on 	this
specific 	point 	is 	that 	-in 	recent 	years 	prices 	in 	the 	U.S.
have 	been 	bid 	anywhere 	between 	two 	and 	five 	years 	in 	advance
of 	use, 	without 	having 	taken 	into 	account 	the 	decline 	in 	the
housing 	industry.- 	~ at 	10,404.
~ 	ITC 	332 	Report 	at 	43.
211 ~ at 	44 	1'X)te 	1-
.w ~ at 	48.
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is 	a 	full 	reappraisal 	annually 	to 	reflect 	all 	changes 	in 	costs
and 	pri ces •.2.2I
In 	the 	United 	States, 	a 	license 	operates 	more 	like 	a
-futures" 	contract 	than 	does 	a 	Canadian 	license. 	In 	the Uni ted
States, 	one 	buys 	the 	right 	to 	harvest 	timber 	over 	some 	period 	of
time 	in 	the 	future 	for 	a 	price 	agreed 	upon 	today. 	Expectations
about 	future 	prices 	thus 	are 	a 	crucial 	factor 	weighed 	in
determi ning 	the 	price 	to 	offer 	for 	such 	a 	contract 	and 	stongly
influence 	the 	market 	price. 	In Canada, 	however, 	one 	acquires 	the
ri g ht 	to 	har ves t 	tim ber 	accor di ng 	to 	a 	s ched ule 	and 	at 	a 	pr ice
that 	is 	adjusted over 	time 	to 	reflect 	the 	changing 	value 	of 	the
timber. 	Risk 	and speculation 	are 	therefore 	considerably lower
under 	the Canadian 	system, 	since 	one 	can 	profit 	(or 	lose) 	less
fran 	an 	increase 	(or 	decrease) 	in 	the 	value 	of 	timber •.2.Q!
There 	is 	considerable 	evidence 	that 	United 	States 	sttlllpage
fee 	prices 	were 	strongly 	influenced 	by 	inflationary expectations
during 	1977-1981; 	consequently, 	differences 	in 	the 	nature 	of 	the
contracts 	probably 	had 	heightened 	impact 	during 	this 	period 	and
account 	for 	at 	least 	part 	of 	the 	difference 	between 	stumpage
1lI 	d	48 	Fe 	• 	Reg. 	10,413.
iQ/ Gi ven 	the 	var i ety and 	campI exi ty of 	methods 	of 	awardi ng
st umpage 	rights 	and 	assessing 	st tnpage 	fees 	in 	the Canadian
Provinces, 	it 	is 	possible 	that 	expectations 	about 	future
timber 	prices 	affect 	current 	prices, 	but 	in 	a 	less
significant 	manner 	than 	in 	the 	United 	States.
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pr i ces 	in 	the 	Uni ted 	States 	and Canada • .ill 	The 	evi dence
available, 	as 	detailed 	below, 	tends 	to 	support 	this 	conclusion.
First, 	in 	the 	Pacific Northwest 	area, 	reported 	bid 	prices
escalated 	in 	the 	late 	1970' s 	to many 	times 	the 	appraised 	value 	of
the 	timber 	under 	consideration •.2lI 	The 	Forest 	Service, 	which
administers 	the sales, 	concluded 	that 	this 	divergence 	between
appraisal 	and 	market 	prices 	was 	due 	to 	purchasers' 	expectations
of 	future 	trends:
i!I This 	concl usion 	is 	supported 	by 	the 	testimony 	of Mr.
Westbrook, 	President 	of 	Cascade West 	Forest 	Products, 	given
at 	the 	ITC 	staff 	conference 	in 	this 	proceeding. 	Tr. 	at 	62.
It 	also 	is 	acknowledged 	in 	the 	Petitioner's 	consultants'
report. 	Petitioner's Joint Report 	at 15 •
.w The 	ITC Report 	of 	the 	Section 	332 	investigation 	furnished 	the
following 	comparison 	of 	advertised 	prices 	(appraised 	values
plus 	required 	road 	construction 	costs), 	with 	bid 	prices:
1977
1978
1979
1980
1981
Advertised
$/MBF
112.78
120.13
131. 24
99.42
97.50
Bid
$/MBF
181.76
214.95
335.00
350.46
275.14
Ratio
Bid 	to 	Advertised
1.6
1.8
2.6
3.5
2.8
ITC 332 	Report 	at 	42.
The 	above 	ITC 	report 	reflects 	data 	through 	1981 	for 	the 	west
side 	of 	U.S.F.S. 	Region 	6 	(Pacific Northwest). 	Although
identical 	data 	is 	unavailable 	for 	1982, 	a 	privately published
report 	of 	bid 	and 	advertised 	prices 	in 	U.S.F.S. 	Region 	6,
west 	side 	sales 	indicates 	that 	the 	bid 	to 	advertised 	ratio
declined 	further 	from 1981 	to 	the 	period January 	through
September 	1982. 	Timber 	Data Co., 	Contract 	length Analysis,
Survey, 	U.S.F.S., 	Region 	6 West-Side 	NFS, 	Auction Sales. 	To
the 	extent 	that 	inflationary expectations 	were 	reduced 	in
1981 	and 	1982, 	the 	decline 	in 	the 	bid 	to 	advertised 	price
supports 	the 	position 	that 	these 	expectations 	influence
mar ket 	prices.
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premi \.DB 	in 	bid 	prices 	over 	advertised 	values 	was much 	smaller 	in
areas 	of 	the 	country outside 	the 	Pacific Northwest Coast.
Petitioner's Joint Report 	at 16a-16f. 	Thus, 	where 	the Forest
Second, 	com Par isons 	of 	U.S. 	Fores t 	S er vi ce 	bi d 	pr i ces 	and
advertised 	prices 	(appraisal 	plus 	required 	road 	construction
costs) 	that 	were 	submitted with 	the 	Petition 	indicate 	that 	the
"Two 	principle 	causes 	have 	been 	a 	combination 	of 	the
purchaser's 	expectations 	of 	a 	high 	level 	of 	housing 	starts
(strong demand) 	and 	an 	expectation 	of 	continued 	high
inflation 	rates 	(high 	prices). 	These 	expectations 	caused
some 	purchasers 	to 	bid 	extremely high 	prices 	for 	longer 	term
sales 	of 	4, 	5, 	or 	6 	years." 	47 	Fed. 	Reg. 	2886 	(January 	20,
1982).
clauses 	-- 	reduced 	the 	possibility 	of 	future 	profits, 	the
competi ti ve 	bi d 	pr i ces 	exceeded 	the 	advertised 	pr i ce 	by 	a
. considerably lower 	amount 	than 	in 	the 	Pacific Northwest.
In sllDlDary, 	United States 	and Canadian 	lumber 	producers 	are
purchasing 	a 	different 	bundle 	of 	rights 	when 	they 	pay 	their
respective 	stumpage 	fees. 	During 	an 	environment 	of 	inflationary
expectations, 	such 	as 	those 	that 	characterized 	the 	1977-1981
period, 	United 	States 	s.tumpage 	(of 	comparable quality and 	cost 	of
production) 	would 	command 	a 	higher 	price 	in 	the market 	than 	would
Canadian 	stumpage. 	If 	the 	Department 	were 	to 	use 	the 	United
1. e., 	the 	inclusion 	of 	escalation	Service's 	sales 	mechanism
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States 	pr i ces 	as 	a 	proxy 	f or 	the 	Canadi an 	mar ket 	val ue 	of
stlJllpage, 	it 	would 	be 	necessary 	to 	adjust 	the United States
prices 	to 	ensure 	that 	the 	data 	are 	indeed 	comparable.ilI
CCN a. tl3 I CN
This 	countervailing 	duty proceeding 	is 	exceptionally
important. 	It 	not 	only 	involves 	potentially large 	duties 	on
llJllber 	that 	could 	impose 	significant 	costs 	on United 	States
cons lJIler s, 	including 	the 	hard-pressed Unit~d States 	housing
industry, 	but 	also 	rests 	upon 	a 	novel 	theory of 	subsidization
that 	sUbsequently 	might 	be 	used 	against 	u.S. 	'exports. 	For 	the
reasons 	given 	above, 	theCaamission 	urges 	the 	Camnerce 	Department
to 	determine 	that 	a 	subsidy exists 	if 	and 	only 	if 	it 	finds
reasonably 	reliable 	evidence 	both 	that 	the Canadian 	government 	is
undercharging 	for 	timber 	harvesting 	rights 	and 	that 	the
-benefits· 	of 	this 	undercharge 	are 	passed 	through 	the 	various
stages 	of 	production 	to 	reduce 	unf ai rly 	the 	price 	f or 	imported
llDber. 	If 	the 	Department 	finds 	that 	there 	is 	a 	subsidy on
ill In making 	this 	adj ustment, 	it 	is 	also 	important 	that 	the
Department 	use 	recent 	sales 	data. 	Petitioner's 	SUbsidy
calculations 	are 	based 	on 	1980 	data. 	Even 	ass lDing 	arguendo
the 	validity of 	Petitioner's 	averaging 	technique, 	these
calculations 	suffer 	from 	the 	defect 	that 	stumpage 	prices 	in
the United States 	have 	fallen 	dramatically 	since 	1980.
According 	to 	published 	reports 	by 	the 	U.S. 	Forest 	Service,
the 	average 	price 	per 	thousand 	board 	feet 	for 	all 	softwood
st\lllpage 	sold 	in National 	Forests 	has 	decreased 	from
$20S.l7/MBF 	in 1979 	to 	$S8.80/MBF 	in 	the 	second 	quarter 	of
1982. 	U.s. 	Department 	of 	Agriculture, 	Forest 	Service, 	VolLltle
and 	Value 	of Low Timber StLltlpage Sold 	from National Forests,
~ 	Selected 	Species 	and 	Region, 	1979 	Calendar 	Year 	Report;
82 Quarterly Report. 	Even 	under 	Petitioner's 	theory 	of 	the
case, 	if 	there 	is 	a 	subsidy on 	1983 	imports, 	it 	should 	be
measured on 	the 	basis 	of 	1983 	price 	comparisons.
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lumber, 	it 	should 	use 	United 	States 	prices, 	if 	at 	all, 	only 	as 	a
surrogate 	for 	the 	relevant 	Canadian market-determined 	prices. 	If
this 	comparison 	becomes 	necessary, 	the 	Department 	should 	apply
current 	data 	and 	adjust 	for 	differences 	in 	prices 	due 	to 	national
differences 	in 	the 	values 	of 	the_timber 	and 	of 	the 	harvesting
rights 	granted.
These 	inquiries, 	although 	not 	simply 	accomplished, 	merit 	the
Department's 	close 	attention. 	As 	the 	legislative 	history 	of 	the
statute 	indicates, 	Congress 	intended 	that 	countervailing 	duties
be 	imposed 	only 	against 	imports 	benefitting 	from 	an 	unfair
competitive 	advantage 	bestowed 	on 	a 	foreign 	producer, 	thereby
producing 	a 	trade 	distortion. 	United 	States 	consumers, 	such 	as
the 	housing 	industry 	and 	home 	buyers, 	otherwise 	are 	entitled 	to
the 	economic 	benefits 	of 	free 	and 	fair 	import 	trade.
By 	direction 	of 	the 	Commission.
Benj amin 	I. 	Berman
Acting 	Secretary
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APPENDIX
ANALYSIS 	OF 	WHETHER 	ANY 	ALLEGED 	SUBSIDY 	TO 	CANADIAN 	TREE
HARVESTERS 	IS 	PASSED 	THROUGH 	TO 	LUMBER 	PRODUCERS
. by 	David 	G. 	Tarr
This 	appendix 	will 	show 	employing 	microeconomic 	analysis 	that,
based 	on 	facts 	presented 	by 	the 	petitioner:
Anz 	benefits 	~ 	harvesters 	might 	acqrue 	from 	the 	Canadian
stumpage 	rights 	allocation 	system 	~ 	not 	passed 	Qn 	to 	the
lumber 	mills 	in 	~ 	form 	of 	lower 	prices 	for 	~ 	and 	do 	not
result 	in 	lower 	prices 	~ 	lumber 	products 	sold 	in 	Canada 	~
~ 	United 	States. 	~ 	such. 	the 	Canadian 	stumpage 	allocation
system 	~ n2i ~ subsidy ~ 	lumber 	mills.
The 	first 	section 	of 	this 	appendix 	will 	develop 	the 	facts
upon 	which 	the 	analysis 	is 	based. 	These 	facts 	are 	derived 	from
the 	petition. 	The 	second 	section 	derives 	the 	conclusion 	of 	this
appendix 	from 	a 	graphical 	microeconomic 	analysis. 	The 	third
section 	derives 	the 	same 	conclusion 	from 	a 	mathematical 	micro-
economic 	model.
Factual 	Presentation
The 	principal 	subsidy 	which 	is 	alleged, 	by 	the 	petitioner,
is 	that 	the 	Canadian 	forest 	products 	industry 	is 	allowed 	to 	cut
timber 	on 	government 	owned 	lands 	at 	a 	fraction 	of 	the 	timber's
actual 	market value. 	The manner in which timber is sold in the
United 	States 	and 	Canada 	is 	described 	in 	detail 	in 	the 	expert's
report 	submitted 	as 	part 	of 	Volume 	II 	of 	the 	petition. l
1 	Resource 	Issues, 	Inc. 	and 	Mason, 	Bruce 	&: 	Girard, 	Inc.,
"Joint 	Report 	Describing 	the 	Manner 	in 	Which 	Standing 	Timber 	is
sold 	in 	the 	U.S. 	and 	Canada 	and 	Stumpage 	Prices 	Actually 	Paid,"
Oc t 0 be r 	4, 	1 982, 	p p . 	18- 30. 	( " J 0 in t 	Rep 0 r t " )
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Fo~ 	the 	purpose 	of 	assessing 	who 	receives 	a 	subsidy, 	if 	~ny,
there 	are 	~ 	number 	of 	essential 	features 	of 	the 	process 	described
therei:l:
(1) 	The 	Capadian 	provinces, 	most 	impo~tantly, British
Columbia, 	Qu~bec, 	Ont~rio and 	Alberta, 	first 	deter-
mine 	through 	an 	~dministrativ~ process 	which 	acreage
to 	allot 	to 	tree 	harvesting 	and 	when 	to 	allocate
licenses 	for 	th~t 	harvedting. 2
(2) 	The 	right 	to 	cut 	timber 	from 	any 	such 	designated 	a~~~
is 	then 	also 	determined 	by 	an 	administ~~tive p~ocess.
These 	rights, 	known 	as 	stumpage 	rights, 	exist 	under 	a
variety 	of 	names 	such 	as 	in 	British 	Columbia, 	tree 	farm
licenses, 	fo~est licenses, 	timber 	licenses 	and 	timbe~
sale~. 	Petitioner 	states 	that 	these 	rights 	o~
lic~n~e~ ~~a 	~~~~ded either 	frae 	or 	~t ~ 	~inimal cha~3e
on 	criteria 	clearl! 	other 	than 	profit 	maximization 	by 	tha
pro{in.~~~. 3 	Tile 	t~ee 	ha~vester 	th'~n ,3 ..lbJiits 	a 	pla:l 	f:)r
harvesting 	his 	acreage 	(o~ 	po~sibly the 	licen~e 	itself
stipulates 	~ 	harvest 	plan) 	to 	the 	approp~i~te
provinciaL 	offici-lls; 	once 	the 	plan 	is 	approved 	h~ 	is
free 	to 	cu~ 	within 	the 	limits 	of 	the 	plan. 4
(3) 	The 	price 	which 	the 	harvedting 	compan! 	i~ 	charged 	for
timber 	at 	the 	time 	it 	is 	harve~ted (the 	~tu~pa3e pric~
or 	~tumpage fee) 	is 	based, 	according 	t,) 	t;le 	?~titi:)n,
on 	~ 	stumpage 	-lppraisal 	s!~tem sjch 	as 	the 	"Rothery"
system 	used 	in 	British 	Columbia.' 	The 	Rothery 	system
i~ 	a 	residual 	value 	appr~iS-ll syst~m ~here the 	costs 	of
p~oducing lumber 	plus 	a 	normal 	profit 	are 	subtracted
from 	the 	value 	of 	the 	lumber 	to 	determine 	the 	stump~3e
-----_. -_. - --------
2
3
The 	provinces 	continue 	to 	own 	tha 	l~nd.
See 	Joint 	Report, 	p. 	19.
4 	See 	"Countervailing 	Duty 	Questionnai~e, Appendix 	II,
Province 	of 	8ritish 	Columbia, 	pp. 	3-7. 	~ith 	"tree 	farm 	licenses"
h~ 	m~st 	cut 	within 	± 	101 	over 	a 	five 	year 	basis.
5 	~e 	a~e 	focusing 	of 	the 	Rothe~y appraisal 	sy~tem, 	which 	i~
~)"'~'1~l~nt in 	British 	C01'IJ1oia, 	becall~e tht~ 	wa~ 	the 	fOCI1.~ .,f
the 	petiti~n and 	because 	8ritish 	Columbia 	accounts 	for 	app~oxi
~-ltely 681 	of 	t~~ 	lumbe~ exports 	to 	the 	U.S. 	Other 	provinces,
~ay employ 	different 	sy~ta!l1s, but 	the~e systems 	would 	be 	expected
to 	h~'1e 	analogous 	effects 	on 	price, 	quantity 	and 	rent 	disposition.
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fee 	for 	the 	timber 	in 	question. 	It 	is 	not 	a 	fee 	deter-
mined 	at 	a 	competitive 	auction. 	The 	petitioner 	alleges
that 	competitive 	auctions 	more 	often 	characterize 	the
stumpage 	price 	determination 	process 	in 	the 	United
States 	and 	that 	competitive 	auctions 	would 	yield 	much
higher 	prices 	for 	stumpage 	in 	Canada.
These 	appear 	to 	be 	the 	essential 	features 	of 	the 	Canadian 	tree
allocation 	process 	as 	alleged 	by 	the 	petitioner. 	For 	the 	sake 	of
the 	argument 	below, 	it 	is 	assumed 	that 	these 	facts 	are 	true.
What is at issue as 	far 	as 	the petitioner is concerned 	is 	that
the 	lack of an auction for stumpage prices conveys a subsidy to
Canadian 	lumber 	interests. 	The 	subsidy 	is 	said 	to 	equal 	the
difference 	between 	a 	competitively 	determined 	auction 	price 	for
trees 	and 	the 	appraised 	price 	actually 	paid. 	Employing 	micro-
economic theory, 	however, 	it 	follows 	from 	the 	three 	facts 	above
that any benefits 	that 	tree 	harvesters 	capture 	from 	below 	market
stumpage fees are not passed along to the lumber mills in the
form 	of 	lower 	prices 	for 	logs 	and 	consequently 	also 	do 	not
result 	in 	lower 	lumbe~ prices.
Graphical 	Economic 	Analysis 	of 	~ 	Canadian 	1Qg Market
One 	of 	the 	most 	fundamental 	principles 	of 	economics 	is 	that
the 	equili~rium price 	that 	prevails 	in 	the 	market 	is 	that 	price
which 	results 	in 	equality 	between 	the 	quantity 	demanded 	and 	the
quantity 	supplied. 	This 	is 	said 	to 	be 	the 	market 	clearing 	price. 6
The 	demand 	for 	harvested 	trees 	(or 	logs) 	from 	provincial 	and
other 	lands 	derives 	primarily 	from 	mills, 	both 	vertically 	inte-
grated 	and 	nonintegrated, 	which 	produce 	wood 	products 	but 	also
.)
6 	See 	Paul 	Samuelson, 	Economics, 	8th 	edition, 	p. 	61; 	and 	Armen
Alchian 	and 	William 	Allen, 	Exchange 	~ 	Production; 	Theory 	in
.u.u, 	1969, 	pp. 	86-87.
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9
exta~t. 	The 	de~~nd 	curve 	o~ da~~nd schedule 	m~y s~fely be
~gsu~ed to 	have 	its 	l.1sual 	do...,n...,~rd 	sloping 	cha~~cta"'.7
The 	gupply 	of 	logs 	from 	provinci~l la~ds, 	howe~ar, 	is 	sp~ci-
fiad 	by 	facts 	(1) 	~nd 	(2) 	~bove. 	~~~~ ~Ros_~a~~~ the 	method 	Qy
which 	stumpage 	~~~~ aJ:~ ~~~~~~~~~~ ~Q~~ ~Q~ ~f-l~~Q~~ ~Q~
~~~~~~ ~( ~~~~~ ~~~ e~Q~l~~~~ ~~~~ ~ail~~~ for 	cutting. 	That
quantity 	is 	administr~tiv~ly deter~ined by 	the 	provinces.
The 	gituatio~ 	desc~ibed 	is 	depicted 	in 	Figure 	I. 	DD 	repre-
sents 	the 	de~~nd curve 	for 	provincial 	logs 	by 	(both 	vertically
integrated 	and 	nonintegrated) 	sawmills. 	Me 	is 	the 	aggregate 	of
all 	tree 	harvesters 	marginal 	costs 	of 	harvesting 	logs,a 	not
including 	stumpage~. 	The 	marginal 	costs 	of 	harvesting 	less
stumpage 	fees 	are 	the 	costs 	of 	labor, 	capital 	and 	other 	non-
stumpage 	facto~s of 	production 	necessary 	to 	acdess 	~~d cut 	trees
and 	deliver 	logs 	to 	buyers. 	It 	is 	usesful 	to 	understand 	...,hy 	the
~arginal cost 	of 	harvesting 	increases 	with 	the 	quantity 	of 	logs.
~ot all 	parcels 	of 	land 	available 	for 	tree 	harvesting 	are 	equally
accessible 	o~ 	v~luable. 	Initially 	the 	easiest 	t~ees 	to 	access 	or
most 	valuable 	could 	be 	selected, 	but 	only 	less 	accessible 	or
valuable 	logs 	...,ould 	become 	available 	as 	more 	logs 	are 	cut. 9 	In
---- --- --- -------------
7 	See 	Samuelson, 	p. 	60, 	ftn. 	1.
a 	It 	is 	drawn 	upward 	sloping, 	since 	prog~essively less 	acces-
sible 	and 	,nore 	costly 	logs 	are 	available 	after 	the 	~ost
accessible 	and 	cheapest 	logs 	are 	cut.
Not 	all 	logs 	are 	ho~ogeneous in 	quality; 	differe~t species
of 	trees 	sell 	for 	different 	prices. 	A tree 	harv~ster may 	h~va 	to
s ell 	t..., 0 	logs of one v ~ r i e t y in a r d e ~ t 00 b t do i n the sam ~ (' eve n 11 e
as one log of 3. more highly valued species. 	If...,a 	me~Stl~:~
(footnote 	continued 	on 	next 	page)
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FIGURr£ I
Me
Q
QUANTITY
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10
Figure 	I, 	MC, 	the 	industry 	long-run 	marginal 	cost 	curve 	not
including 	stumpage 	fees, 	is 	drawn. 10 	Depending 	on 	how 	much
stumpage 	fees 	are, 	considerable 	intra-marginal 	rents 	may 	be
captured 	by 	the 	Canadian 	tree 	harvesters.
First, 	consider 	the 	extreme 	of 	~ 	stumpage 	fee§, 	that 	is
the 	timber 	is 	given 	away 	for 	nothing 	by 	the 	provinces. 	In 	this
event, 	the 	marginal 	costs 	of 	harvestin~ less 	stumpage 	fees 	are
the 	only 	costs; 	so 	the 	MC 	curve 	is 	clearly 	the 	ind~stry supply
curve. 11 	Then 	the 	equilibrium 	price 	and 	quantity 	are 	labelled 	P
and 	Q where 	industry 	supply 	= MC 	= DO. 	T~e 	amount 	of 	rents 	(all
intramarginal) 	captured 	by 	the 	tree 	harvesters 	would 	equal 	the
area 	PoPE.
Second, 	consider 	the 	outcome 	if 	stumpage 	fees 	for 	~ach
separate 	parcel 	of 	harvestable 	timber 	where 	determined 	Qy 2
com oet it i ve 	auct iQ.!l. 	In 	this 	case 	an 	ind i vidual 	firm 	wOllid 	be
(footnote 	continued 	from 	preceding 	page)
quantity 	in 	quality 	adjusted 	units 	or 	"efficiency
units" 	(as 	is 	necessary 	to 	refer 	to 	a 	homogeneous 	product
"logs"), 	then 	the 	marginal 	costs 	of 	producing 	logs 	will
increase 	as 	quantity 	increases 	in 	part 	because 	all 	other
things 	equal 	the 	higher 	quality 	species 	would 	be 	taken
first.
Since 	the 	contract 	period 	for 	stumpage 	rights 	generally
3 xten d s 0 ve r a f i ve yea r s 0 r 	!D 0 r e, 	a 	ion g- run 	in 0 :1 e 1 a ppea r s
prefer=i.ble.
11 	For 	-3.n 	explanation 	of 	why 	the 	long-run 	marginal 	cost 	curve
for 	a 	competitive 	industry 	is 	the 	long-run 	industry 	supply 	curve
see 	Henderson 	and 	Quandt, 	Microeconomic 	IQ~~r-y, 	1971, 	pp. 	71-
79 	or 	the 	mathematical 	section 	of 	this 	appendix.
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willing 	to 	bid fin amount 	on a 	particular parcel up to but (lot
exceeding the price it could obtain for 	the logs less its 	margi-
nal 	costs 	excluding 	stumpage, 	i.e. 	P-MC. 	This 	is 	the 	amount 	of
rent 	on 	any 	particular 	p~rcel. 	As 	long 	as 	firms 	in 	a 	competitive
market could obtain a parcel of timber for less than the rent on
that 	parcel, 	some 	firms 	would 	be 	interested 	in 	bidding 	on 	it; 	we
would 	expect 	a 	competitive 	auction 	to 	drive 	up 	the 	price 	of
timber 	~ntil 	the 	provinces 	captured 	all 	the 	rents. 	This 	system
is 	equivalent 	to 	what 	economists 	refer 	to 	as 	a 	"perfectly 	discri-
minatory" 	fee 	system. 12
Most 	importantly, 	for 	this 	discussion, 	we 	would 	also 	expect
firms to continue to bid on all timber for 	which some rel1t 	l.s
possible. 	Since 	some 	positive 	rent 	is 	available 	on 	all 	parcels
until 	the 	price 	of 	logs 	P equals 	the 	marginal 	harvesting 	costs,
expansion 	of 	output 	should 	occur 	to 	Q. 	That 	is, 	the 	competitive
auction 	for 	stumpage 	results 	in 	the 	same 	output 	and 	price 	of 	logs
as 	does 	zero 	stumpage 	fees.
Third, 	consider 	the 	"Rothery" 	residual 	value 	appraisal 	system
(explained 	in 	fact 	(3) 	above). 	It 	is 	alleged 	by 	the 	petitioner
that 	through 	this 	system 	the 	provinces 	fail 	to 	capture 	the 	full
rent 	on 	timber. 	Since 	this 	system 	adjusts 	the 	fee 	in 	accordance
with 	the 	costs 	of 	producing 	the 	logs, 	in 	principle 	the 	fee 	is 	some
proportion 	of 	the 	difference 	between 	price 	and 	marginal 	cost. 	That
is, 	the 	fee 	is, 	for 	any 	small 	parcel 	of 	timber, 	u(P-MC(Q» 	where
o ~ 	u 	< 	1. 	The 	fee 	could 	not 	be 	greater 	that 	P-MC, 	i.e. 	not 	greater
--------- -- ------
12 	See 	Henderson 	and 	Quard t, 	MicroeconomiQ. 	1Jl.~QJ:Y, 	1971, 	pp.
217,218.
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than 	the 	full 	rents, 	or 	~o 	one 	would 	~gree 	to 	log 	the 	timberl~nd.
In 	any 	event, 	the 	petitio~er is 	not 	alleging 	that 	the 	Rothery
system 	over-~ppraises, i.e. 	u 	> 1 is 	not 	~t 	issue. 	If 	u 	= 1 the
provinces 	collect 	~ll 	the 	rents; 	if 	u 	= 0 	the 	provinces 	give 	away
the 	stumpage. 	In 	between 	these 	extremes, 	the 	provinces 	allow 	the
tree 	harvesters 	some 	of 	the 	rents 	that 	they 	would 	capture 	under
compdtition 	and 	it 	is 	alleged 	that 	this 	situation, 	with 	u 	< 1
occurs. 	But 	analogous 	to 	the 	argument 	made 	under 	the 	competitive
auction 	system, 	we 	would 	expect 	firms 	to 	continue 	to 	pay 	fees 	on
parcels 	of 	timberland 	and 	harvest 	trees 	until 	P=MC; 	firms 	can
ear~ 	positive 	rents 	up 	to 	this 	point. 	Thus, 	this 	in 	between 	case
also results in the same price 	P and quantity 	Q as 	the previous
two 	cases.
It 	should 	be 	observed 	that 	in 	this 	case 	if 	u 	= 1, 	Le. 	the
Rothery 	system 	of 	the 	provinces 	extracts 	all 	the 	rents, 	the 	price
remains 	at 	P, 	and 	the 	quantity 	at 	Q. 	With 	u 	= 1, 	the 	Rothery
system 	would 	be 	fully 	equivalent 	to 	the 	competitive 	system 	as
far 	as 	rent 	disposition 	as 	well.
The 	c~ucial 	deduction 	from 	this 	analysis 	is 	that 	the 	stumpage
fee 	system 	only 	determines 	the 	disposition 	of 	the 	rents 	between 	the
provinces 	and 	the 	tree 	harvesters. 	The 	price 	at 	which 	logs 	trade,
however, 	(P 	in 	the 	diagram) 	is 	totally 	independent 	of 	the 	stumpage
fee 	system. 	That, 	naturally, 	is 	determined 	by 	the 	intersection 	of
the 	supply 	and 	demand 	schedules. 	Even 	if 	the 	Canadian 	provinces 	set
the 	stumpage 	fees 	at 	zero, 	the 	rents 	are 	captured 	at 	the 	tree
harvesting 	st~ge of 	production 	and 	the 	sawmills 	receive 	absolutely
no 	benefits 	from 	that 	government 	action. 	That 	is, 	the 	other 	extreme
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of 	either 	a 	competitive 	auction 	or 	a 	"perfectly 	discriminatory"
Rothery 	stumpage 	fee 	system 	(where 	u 	= 1) 	which 	allows 	no 	rents 	for
tree 	harvesters 	(or 	something 	in 	between), 	still 	yields 	the 	same
price 	for 	logs 	to 	the 	sawmills. 	-An 	intermediate 	Rothery 	appraisal
system, 	i.e. 	0 	< u 	< 1, 	allows 	the 	tree 	harvesters 	to 	capture 	some
but 	not 	all 	of 	the 	intramarginal 	rents 	(equal 	to 	PoPE), 	but
does 	not 	affect 	the 	equilibrium 	price 	and 	quantity. 	Thus, 	any
subsidy 	through 	the 	stumpage 	fee 	system 	which 	may 	convey 	to 	tree
harvesters 	is 	not 	passed 	along 	to 	the 	sawmills 	and 	therefore
does 	not 	affect 	the 	price 	of 	wood 	products 	sold 	in 	the 	U.S.
There 	exist 	stumpage 	fee 	systems, 	which 	are 	not 	at 	issue 	in
this 	proceeding, 	that 	would, 	compared 	with 	a 	competitive 	auction,
result 	in 	a 	negative 	benefit 	pass-through 	to 	the 	lumber 	producers,
i.e. 	that 	would 	result 	in 	higher 	prices 	for 	logs 	and 	fewer 	logs
produced 	than 	would 	a 	competitive 	auction 	for 	timberland. 13 	Since
under 	such 	systems 	lumber 	producers 	must 	pay 	higher 	prices 	for 	logs
than 	they 	would 	under 	~ competitive 	market 	determined 	fee 	system,
such 	systems 	impose 	costs 	on 	lumber 	producers 	rather 	than 	convey
benefi~s. 	Thus 	such 	systems 	are 	not 	countervailable. 14
13 	In 	particular, 	if 	the 	provinces 	charge 	$x 	per 	harvested 	log
as a stumpage fee, 	then the supply curve would be the marginal
cost 	of 	harvesting 	plus 	$x, 	i.e. 	it 	would 	be 	a 	curve 	parallel 	to
Me but above and to the left. 	It would 	intersect the demand
curve at a higher price and lower quantity than the 	P and 	Q
determined 	by 	the 	competitive 	auction 	or 	the 	Rothery 	system. 	A
change in the fee from $x to $y will change the equilibrium price
and 	the 	negative 	pass-through, 	but 	the 	sawmills 	are 	worse 	off
with 	either 	fee 	than 	they 	would 	be 	with 	a 	competitive 	auction.
14 	The essence 0 f 	the way such sys tems affec t 	pr ic e and
quantity 	is 	that 	they 	require 	a 	fee 	on 	marginal 	timberland 	in
excess 	of 	its 	rent.
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vertical 	Integration
The 	conclusion 	that 	no 	subsidies 	are 	conveyed 	to 	the 	saw-
mills 	is 	not 	altered 	even 	if 	the 	tree 	harvester 	and 	the 	sawmill
are 	part 	of 	the 	same 	company 	(vertically 	integrated). 	The
company 	incurs 	an 	"opportunity 	cost" 	when 	it 	decides 	to 	use 	logs
in 	its 	own 	sawmill. 	That 	opportunity 	cost 	is 	the 	price 	it 	could
receive 	by 	selling 	the 	logs 	on 	the 	open 	market 	to 	an 	independent
sawmill. 	Thus the true cost to the sawmill of using logs pro-
duced 	by 	the 	tree 	harvesting 	division 	of 	its 	own 	company 	is
the 	price 	the 	logs 	could 	obtain 	when 	sold 	to 	an 	independent
sawmill. 15
Conclusion
If 	the 	demand 	for 	logs 	were 	significantly 	lower, 	intersecting
the 	Me 	curve 	farther 	to 	the 	left, 	both 	the 	price 	of 	logs 	to 	the
mills 	and 	the 	area 	of 	possible 	rent 	disposition 	would 	be 	signifi-
cantly 	lower. 	The 	principles 	just 	described, 	however, 	remain
unchanged. 	In 	particular, 	there 	would 	still 	be 	an 	area 	of 	possi-
ble 	rent 	capture 	by 	Canadian 	tree 	harvesters 	which 	would 	depend
on 	how 	the 	stumpage 	fees 	were 	set. 	The 	price 	at 	which 	logs 	sell,
however, 	would 	again 	be 	independent 	of 	the 	stumpage 	fee 	system.
The 	source 	of 	the 	petitioner's 	confusion 	may 	be 	illustrated
by 	the 	following 	consideration. 	If 	the 	demand 	for 	logs 	shifts 	up
or 	down 	then 	the 	price 	of 	logs 	rises 	or 	falls, 	respectively. 	The
15 	Samuelson 	(p. 	449) 	states: 	" 	some 	of 	the 	most 	important
costs 	attributible 	to 	doing 	one 	thing 	rather 	than 	another 	stem
from 	the 	forgone 	opportunities 	that 	have 	to 	be 	sacrificed 	in
doing 	this 	one 	thing.... 	For 	these 	reasons, 	full 	competitive
cost 	intimately 	involves 	opportunity 	~."
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. .
area 	of 	possible 	rent 	disposition 	also 	increases 	or 	decreases
respectively. 	That 	is, 	as 	demand 	shifts, 	price 	changes 	and 	pos-
sible 	rents 	change. 	Rents, 	however, 	are 	not 	a 	necessary 	cost 	that
must 	be 	passed 	along 	in 	determining 	price. 16 	To 	the 	vertically
integrated 	firm 	in 	the 	United 	States 	who 	through 	an 	auctioning
process 	pays any rents on 	trees, 	it 	may appear as a cost which
must 	be 	passed 	on. 	But 	in 	this 	sense 	intramarginal 	rents 	are
analogous 	to 	"pure" 	rents 	to 	which 	Samuelson 	(p. 	539) 	refers:
But 	at 	this 	point 	we 	must 	avoid 	our 	old 	enemy 	"the
fallacy 	of 	composition." 	What 	appears 	as 	a 	cost
of production to each and every small firm using a
particular 	kind 	of 	land 	(tree) 	may, 	as 	we 	have
seen, 	be 	to 	the 	whole 	community 	merely a 	derived
price 	determined 	rent 	expense 	rather 	than 	a 	price-
determining 	one. 	More 	than 	that, 	suppose 	the 	land
is 	(trees 	are) 	specialized 	and 	can 	be 	used 	only
for 	the 	production 	of 	one 	industry. 	If 	a 	grade 	of
land 	(type 	of 	tree) 	is 	inelastically 	supplied 	to
one 	industry 	and, 	having 	no 	place 	else 	to 	go, 	will
always 	work 	for 	whatever 	it 	can 	earn 	there, 	its
return may appear to every small firm as a cost
like 	any 	other. 	But 	as 	scientific 	observers 	of
the 	whole 	industry, 	we 	still 	must 	recognize 	that
the 	land 	(tree) 	return 	is 	a 	price-determined 	rent
and 	not 	a 	pr1ce-determining 	cost.
In 	summary, 	the 	price 	of 	wood 	products 	and 	logs 	determines
the 	amount 	of 	rents 	that 	might 	be 	captured 	by 	tree 	harvesters 	if
the 	stumpage 	fees 	are 	set 	too 	low. 	But 	regarding 	subsidies, 	it
doesn't 	make 	any 	difference 	what 	the 	stumpage 	fees 	are, 	since
16 	These 	rents 	(intramarginal) 	are 	equal 	to 	the 	area 	between
the 	new 	price 	and 	the 	Me 	curve.
11
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these 	only 	influence 	the 	distribution 	of 	the 	rents 	between 	the
provinces 	and 	the 	tree 	harvesters 	and 	they 	do 	not 	affect 	the
price 	of 	logs 	or 	wood 	products.
Model 	£! 	Price 	~ Quantity 	Determination 	~ 	Canadian
~ 	Under 	Different 	Stumpage 	~ 	Structures
Let 	Si(P) 	= the 	i-th 	firm's 	supply curve 	of 	logs, 	S(p) 	= the
industry 	supply 	curve 	of 	logs, 	D(p) 	= the 	industry 	demand 	for
logs and n = the 	number of firms 	in the market. 	Then we have:
n
(1) 	~ 	Si(P) 	= S(p)
i=1
(2) 	D(p) 	= S(p)
and
That 	is, 	equation 	(1) 	states 	the 	industry 	supply 	curve 	is 	the
aggregate 	of 	the 	individual 	firm'S 	supply 	curves; 	equation 	(2)
states 	that 	the 	quantity 	demanded 	and 	the 	quantity 	supplied 	must
be 	equal 	for 	equilbrium.
pep), 	the 	demand 	for 	logs, 	is 	not 	alleged 	to 	be 	affected 	by
the stumpage fee system. 	What is at issue is how the 	fee 	system
affects 	supply.
To 	determine 	this 	it 	is 	necessary 	to 	consider 	the 	individual
firm 	and 	how 	its 	supply 	Si(P) 	is 	affected 	by 	different 	fee
structures.
Let 	Ii 	= profits 	of 	the 	i-th 	firm; 	Qi 	= quantity 	produced
of 	the 	i-th 	firm; 	Ci(Qi) 	= total 	long-run 	costs 	to 	the 	i-th 	firm
of 	producing 	Qi, 	not 	including 	stumpage 	fees 	(where 	Ci(O) 	= 0
12
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, 	.
since 	costs 	are 	10ng-run)16 	and 	Fi(Qi) 	= stumpage 	fees 	of 	the
i-th 	firm 	of 	cutting 	Qi 	units. 	Then 	profits 	equal 	total 	revenues
minus 	total 	costs:
(3) 	Ii 	= pQi 	- 	Ci(Qi) 	- 	Fi(Qi)
where for a competitive firm p is treated as a constant 	(with 	46
pages 	of 	firms 	listed 	by 	petitioner 	this 	appears 	reasonable) 	and
Ci(Qi) 	+ 	Fi(Qi) 	equals 	total 	costs.
The 	individual 	firm 	wishes 	to 	maximize 	profits. 	It
therefore 	sets:
( 4) 	i 	= 1, 	... , 	n
with to 	assure 	a 	:naxim ium, 	where 	f'( x) 	is 	used
to 	denote 	the 	first 	derivative 	of 	the 	function 	f(x) 	with 	respect
to 	)c.
From 	(4) the amount of fees 	that a cQcopetitive firm 	would be
willing 	to 	bid 	on a 	particular 	parcel 	of 	timberland 	can 	be
derived.
( 4) 	im p 1 i e s :
(5) 	p 	= C'(Q) 	+ 	F'(Q) 	for 	all 	firms. 17
With 	the 	convexity 	assumptions 	of 	the 	previous 	sections, 	that 	p 	>
C'(Q) 	for 	all 	Q < Q. 	where 	C'(Q.) 	= p, 	(5) 	states 	that 	the 	firm
... _....---------
16 No 	generality 	is 	lost 	by 	this 	assumption, 	but 	it 	avoids 	a
constant 	in 	the 	calculations.
17The 	SUbscript 	i 	has 	been 	suppressed 	for 	not~tional
simDlicity.
13
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should bid on any small parcel of timberland up to the 	point
where 	the 	price 	of 	logs 	equals 	the 	marginal 	harvesting 	costs 	plus
the 	marginal 	stumpage 	fees.
Utilizing 	(5) 	it 	is 	possible 	to 	determine 	how 	much 	firms 	in
competition 	would 	bid 	for 	the 	timberland. 	As 	long 	as 	the
stumpage 	fees 	from 	an 	additional 	parcel 	of 	timberland 	are 	less
than the 	rents a 	firm 	can earn on 	it, 	it 	would be 	interested 	in
acquiring 	that 	parcel. 	That 	is, 	if 	a 	firm 	is 	producing 	at 	Qo,
where 	p > C'( Qo)' 	then
is 	the 	maximum amount 	a 	firm 	would 	bid 	for 	the 	parcel 	~ Q.
A firm 	would 	not 	pay 	more 	than 	this 	amount, 	since 	the 	stumpage
fees 	would 	then 	exceed 	its 	marginal 	profit 	on 	that 	parcel.
Similarly, 	the aggregate 	maximum amount 	of stumpage 	fees 	a 	firm
would 	pay, 	for all of its timberland on which it produces Q units
of 	logs 	is 	equal 	to:
(7) 	rQ[p-C'(Q)]dQ 	= F(Q)
o
for 	Q ~ 	Q- 	where 	C'(Q-) 	= P
But 	competition 	from 	other 	efficient 	firms 	would 	drive 	the
fees up such that firms would not be able 	to obtain its aggregate
timberland 	for 	less 	than 	(7). 	Thus 	rQ[p-C' 	(Q)]dQ 	would 	be 	the
o
fees 	for 	a 	competitive 	firm 	with 	sufficient 	equally 	efficient
competitors. 	If 	a 	firm 	had 	a 	slight 	efficiency 	edge 	on 	its
competitors 	then 	it 	would 	be 	able 	to 	obtain 	its 	timberland 	for
some 	amount 	slightly 	less 	than 	(7) 	since 	it's 	competitors 	would
not 	offer 	quite 	as 	much.
14
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Then:
(8 ) 	u 	jQ 	[p-C'(Q)]dQ 	= F(Q)
o with 	0 	< u 	< 1
is 	the 	amount 	it 	would 	pay 	for 	stumpage 	fees.
Utilizing 	(8) 	we 	can 	return 	to 	(4) 	and 	determine 	the
individual 	firm's 	optimal 	Q and 	its 	supply 	function. 	The 	fees
are:
and
F( Q) 	= u 	j~ 	pdQ 	- 	u 	j~ 	C' ( Q) dQ
(9) 	F'(Q) 	= up 	- 	uC'(Q)18 	= u[p 	- 	C'(Q)].
Then 	(4) 	becomes:
(1-u)[p-C'(Q)] 	= 0
or (4' ) 	p-C' (Q) 	= 0 	for 	u 	< 1 	for 	all 	firms.
Under 	~ comoetitive 	stumpage ~ svstem 	~ !1Lm 	produces 	~ ~
~ 	point 	where 	~ 	marginal 	harvesting 	costs 	equals 	price. 	The
firm'S 	supply 	function 	is 	determined 	from 	(4'); 	given 	any 	p, 	the
firm 	produces 	the 'Q 	that 	satisfies 	(4'). 	The 	i-th 	firm's 	supply
function 	is 	the 	inverse 	function 	of 	its 	marginal 	cost 	function:
5i (p) 	= ci- 1(p)
This 	is 	the 	competitive 	benchmark. 	With 	this 	analysis 	in 	mind,
. 	comparison 	with 	the 	Rothery 	system 	is 	relatively 	straightforward.
The 	Rothery 	residual 	value 	method 	adjusts 	the 	fees 	in 	accordance
with 	the 	marginal 	costs 	of 	producing 	logs 	from 	a 	particular
18 	Refer 	to 	Taylor 	and 	Mann, 	Advanced 	Calculus, 	2nd 	edition,
1972, 	pp. 	579-580 	for 	differentiation 	of 	an 	integral 	with 	respect
to 	the 	upper 	limit 	of 	intergration.
15
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parcel, 	but 	it 	is 	alleged 	that 	it 	allows 	considerable 	rents 	to 	be
captured 	by 	harvesters. 	Accordingly, 	it 	is 	described 	by:
( 10)
for 	any particular parcel 	Q where 	0 	< u < 	1 and u is alleged by
-petitioners 	to 	be 	considerably 	less 	than 	unity. 	The 	firm's
aggregate 	fees 	are:
(11)
For 	the 	individual 	firm 	attempting 	to 	maximize 	profits 	under
the 	Rothery 	system, 	equation 	(4) 	applies. 	Differentiate 	(11)
with 	respect 	to 	Q and 	obtain 	an 	equation 	analogous 	to 	(9):
(12) 	F'(Q) 	= u[p-C'(Q)]
Substitute 	(12) 	into 	(4) 	and 	obtain:
( 1-u ) [p -C ' ( Q)] 	= 0
or
(4") 	p-C' (Q) 	= 0 	for 	0 	~ u 	< 1 	for 	all 	firms.
(4") 	is 	the 	identical 	equation 	as 	(4'). 	Thus 	provided 	the
stumpage 	fees 	are 	not 	fully 	extracted, 	i.e., 	u 	= 1, 	under 	~
Rothery 	system 	~ ~ H1ll expand 	output 	until 	price 	equals
marginal 	harvesting 	costs. 	Also 	analogously, 	the 	firm's 	supply
function 	is 	the 	inverse 	function 	of 	its 	marginal 	cost 	function:
Si(P) 	= Ci- 1 (p) 	i 	= 1, ..• , 	n.
16
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The 	key 	conclusion 	here 	is 	that 	u, 	the 	share 	of 	the 	rents
captured 	by 	the 	provinces, 	does 	not 	effect 	the 	firm's 	or 	the
industry supply curve. 	This 	is 	true 	even 	when u = 0, 	Le., 	all
rents 	go 	to 	the 	firms 	and 	none 	to 	the 	provinces. 	-
The 	Rothery 	and 	competitive 	auction 	system 	yield 	the 	same
industry 	output 	and 	price 	for 	logs. 	The 	Rothery 	system 	allows 	a
transfer 	of 	rents 	(equal 	to 	(1-u)1[p-C'(Q)]dQ) 	from 	the
provinces 	to 	the 	tree 	harvesters, 	that 	under 	a 	competitive 	system
would 	be 	captured 	by 	the 	provinces. 	But 	any 	rent 	capture 	by 	the
tree 	harvesters 	is 	not 	passed 	through 	to 	the 	sawmills 	in 	the 	form
of 	lower 	prices 	for 	logs.
It 	is 	this 	latter 	fact 	that 	forms 	the 	basis 	of 	the 	Samuelson
quote 	in 	the 	previous 	section 	and 	in 	the 	body 	Qf 	the 	brief. 	The
rents 	are 	costs 	to 	the 	individual 	firms. 	They 	are 	not, 	however,
passed 	on 	because 	the 	rents 	are 	a 	residual 	determined 	by 	the
price 	and 	quantity. 	They 	do 	not 	help 	determine 	price 	and
quantity.
17
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Complete printed PDF page 105
CERTIFICATE OF 	SERVICE
I 	hereby 	certify 	that 	on 	this 	1M 	day 	of 	June 	1986, 	I
have 	served 	the 	foregoing 	brief 	by 	causing 	the 	original 	and 	14
copies 	to 	be 	hand-delivered 	to 	the 	Secretary 	of 	the 	Commission
and 	a 	copy 	to 	be 	mailed 	first 	class, 	postage 	prepaid 	to 	the
foil owi ng-:
. 	,
Alan wm. 	Wolff, 	Esq.
W. 	Clark McFadden, 	II, 	Esq.
Jane 	K. 	Albrecht, 	Esq •
Audrey 	S. 	Winter, 	Esq.
John 	A. 	Rogosta, 	Esq.
Robert 	G. 	Bagnall, 	Esq.
Wi lli~ 	Roeller, 	Economist
Dewey, 	Ballantine, 	Bushby,
Pa Ime r 	&: Wood
1775 	Pennsylvania Ave., 	N.W.
Washington, 	D.C. 	20006
Coa 1i t i on 	for 	Fa i r 	L umbe r
Imports
Gary 	Komarow
Associate Regulatory 	Counsel
National 	Assoc. 	of 	Home 	Builders
15th &: M Streets, 	N.W.
Washington, 	D.C. 	20005
Na t i 0 nal 	As soc i a t ion 	0 f Home
Bui Iders
Harry 	J. 	Horrocks
Di rec to r 	0 r Gove rnmen t
Af r air s, 	NLBMDA
40 	Ivy 	Street, 	S.E.
Washington, 	D.C. 	20003
National 	Lumber 	&: Building
Material 	Dealers 	Association
Lawrence A. 	Schneider, 	Esq.
Claire 	Reade, 	Esq.
Spencer 	Griffith, 	Esq.
Eric 	Biel, 	Esq.
Arnold 	&: 	Porter
1200 	New Hampshire 	Ave., 	N.W.
Washington, 	D.C. 	20036
Canadian 	Forest 	Industries
Cou nc ii, 	eta 1 •
Herbert 	A. 	Fierst; 	Esq.
La w 0 f fi ceo f He r be r t 	E. 	Fie r s t
1200 	18th 	Street, 	N.W.
Suite 	610
Washington, 	D.C. 	20036
Canadian 	Forest 	Industries
Cou nc ii, 	eta I •
Richard 	L. 	Cys, 	Esq.
Ve rn e r, 	L i i pre r t, 	Be rnh a rd ,
McPherson 	&: Hand
Sui te 	1000
1660 	L Street, 	N.W.
Washington, 	D.C. 	20036
J.D. 	Irving, 	Ltd.
Steven 	B. 	Feirman
At torney
Di vis ion 	0 fIn te rna t i 0 na I
Antitrust
Bureau 	of 	Competition
Fede ra I 	Trade Commi ss ion
Washington, 	D.C. 	20580
(202) 	634-6609
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