United States Court of Appeals for the Federal Circuit 

2007-1036, -1037 

CLEO INC. and CRYSTAL CREATIVE PRODUCTS, INC., 

 Plaintiff-Appellants, 

and 

TARGET CORPORATION, 

 Plaintiff-Appellant, 

v. 

UNITED STATES, 

 Defendant-Appellee, 

and 

SEAMAN PAPER COMPANY OF MASSACHUSETTS, INC., 

 Defendant-Appellee. 

Frederick L. Ikenson, Blank Rome LLP, of Washington, DC, argued for plaintiffsappellants, Cleo Inc and Crystal Creative Products, Inc. With him on the brief were Larry 

Hampel and Roberta Kienast Daghir. 

Marguerite E. Trossevin, Mayer, Brown, Rowe, & Maw LLP, of Washington, DC, 

argued for plaintiff-appellant, Target Corporation. With her on the brief were James J. 

Jochum and Kristy L. Balsanek. 

Mark B. Rees, Attorney, Office of the General Counsel, United States International 

Trade Commission, of Washington, DC, argued for defendant-appellee, United States. 

With him on the brief were James M. Lyons, General Counsel, and Neal J. Reynolds, 

Assistant General Counsel for Litigation. 

Kathleen W. Cannon, Kelley Drye Collier Shannon, of Washington, DC, argued for 

defendant-appellee, Seaman Paper Company of Massachusetts, Inc. With her on the brief 

was David A. Hartquist. Of counsel was Adam H. Gordon. 

 

Appealed from: United States Court of International Trade 

Judge Judith M. Barzilay 
United States Court of Appeals for the Federal Circuit

2007-1036, -1037 

CLEO INC. and CRYSTAL CREATIVE PRODUCTS, INC., 

Plaintiff- Appellants, 

and 

TARGET CORPORATION, 

 Plaintiff-Appellant, 

v. 

UNITED STATES, 

Defendant-Appellee, 

and 

SEAMAN PAPER COMPANY OF MASSACHUSETTS, INC., 

 Defendant-Appellee. 

__________________________ 

DECIDED: September 10, 2007 

___________________________ 

Before RADER, BRYSON, and MOORE, Circuit Judges.

BRYSON, Circuit Judge. 

 Cleo Inc. and its subsidiary, Crystal Creative Products, Inc., (collectively, “Cleo”) 

join Target Corporation in appealing a decision of the Court of International Trade. That 

court upheld a determination by the International Trade Commission that imports of bulk 
2007-1036,-1037 2 

and consumer tissue paper from China are materially injuring the domestic tissue paper 

industry. Although this case is a complex one that is close on several issues, we are 

persuaded that the Commission’s decision is supported by substantial evidence, and we 

therefore affirm. 

I 

This case began with an investigation instituted in response to allegations that 

imports of tissue paper from China are materially injuring the domestic tissue paper 

industry. On February 14, 2005, the Department of Commerce issued a final 

determination that tissue paper from China is being sold at less than fair value in the 

United States. Notice of Final Determination of Sales at LTFV: Certain Tissue Paper 

Prods. from the People’s Republic of China, 70 Fed. Reg. 7475 (Feb. 14, 2005). 

Shortly thereafter, the Commission issued its final determination that the domestic 

industry is being materially injured by the dumped imports. Certain Tissue Paper 

Products from China, 70 Fed. Reg. 15,350 (Mar. 25, 2005); Certain Tissue Paper 

Prods. from China, Inv. No. 731-TA-1070B (Final), USITC Pub. 3758 (Mar. 2005). 

Because the commissioners were evenly divided on the issue, the Commission was 

deemed by statute to have made an affirmative determination of material injury. 19 

U.S.C. § 1677(11). On appeal, Cleo and Target challenge the Commission’s material 

injury determination. Both Cleo and Target are domestic companies that import tissue 

paper from China. 

 After the Department of Commerce makes a determination that certain articles 

under investigation are being sold in the United States at less than fair value, i.e., being 

“dumped,” the Commission must determine whether a domestic industry is being 
2007-1036,-1037 3 

materially injured or threatened with material injury by the importation of those dumped 

goods. 19 U.S.C. § 1673. The term “industry” is defined by statute to mean the 

producers of a “domestic like product,” id. § 1677(4)(A), and the term “domestic like 

product” is defined to mean “a product which is like, or . . . most similar in characteristics 

and uses” to the relevant imported products, id. § 1677(10). The Commission’s 

determination of what goods constitute “like products” therefore defines the scope of a 

domestic industry and, in turn, the scope of the Commission’s material injury analysis. 

See Allegheny Ludlum Corp. v. United States, 287 F.3d 1365, 1368 (Fed. Cir. 2002). 

Commerce’s designation of the class or kind of merchandise that is sold at less than fair 

value does not control the Commission’s “like product” determination and therefore 

does not control its definition of the industry to which its material injury analysis must be 

applied. Hosiden Corp. v. Advanced Display Mfrs. of Am., 85 F.3d 1561, 1568 (Fed. 

Cir. 1996). It is thus possible that the class or kind of merchandise identified by 

Commerce in its less than fair value determination may encompass more than a single 

domestic industry under the “like product” standard applied by the Commission. Id.

 The “like product” determination is a factual issue that the Commission resolves 

by weighing six factors relating to the products in question: (1) physical characteristics 

and uses; (2) common manufacturing facilities and production employees; (3) 

interchangeability; (4) customer perceptions; (5) channels of distribution; and, where 

appropriate, (6) price. See Torrington Co. v. United States, 938 F.2d 1278, 1280 (Fed. 

Cir. 1991), (adopting 14 Ct. Int’l Trade 648 (1990)); NMB Sing. Ltd v. United States, 288 

F. Supp. 2d 1306, 1313 (Ct. Int’l Trade 2003); Timken Co. v. United States, 913 F. 

Supp. 580, 584 (Ct. Int’l Trade 1996). When weighing those factors, the Commission 
2007-1036,-1037 4 

disregards minor differences and focuses on whether there are any clear dividing lines 

between the products being examined. Nippon Steel Corp. v. United States, 19 Ct. Int’l 

Trade 450, 455 (1995). The legislative history of the Trade Agreements Act of 1979, 

which added the “like product” provision, explains that the requirement that a product be 

“like” the imported article “should not be interpreted in such a narrow fashion as to 

permit minor differences in physical characteristics or uses to lead to the conclusion that 

the product and article are not ‘like’ each other, nor should the definition of ‘like product’ 

be interpreted in such a fashion as to prevent consideration of an industry adversely 

affected by the imports under investigation.” S. Rep. No. 96-249, at 90-91 (1979), 

reprinted in 1979 U.S.C.C.A.N. 381, 476-77. 

Once the Commission has defined the domestic industry at issue, it must 

determine whether that industry is being materially injured by the subject imports. 

When doing so, the Commission evaluates, among other things, the volume of imports 

and their effect on the domestic industry. See 19 U.S.C. § 1677(7)(B). “An affirmative 

injury determination requires both (1) present material injury and (2) a finding that the 

material injury is ‘by reason of’ the subject imports.” Gerald Metals, Inc. v. United 

States, 132 F.3d 716, 719 (Fed. Cir. 1997). 

 In this case, the Commission first considered whether bulk tissue paper and 

consumer tissue paper constitute a single like product. The Commission defined bulk 

tissue paper as tissue paper sold in bulk to stores and manufacturers, generally for use 

in their own businesses to wrap customer purchases. It defined consumer tissue paper 

as tissue paper sold in packages for retail sale. After evaluating the six like product 

factors and examining whether there are any clear dividing lines between bulk and 
2007-1036,-1037 5 

consumer tissue paper, the Commission determined that the two types of tissue paper 

constitute a single like product for purposes of the material injury analysis. 

 The Commission then considered whether the domestic tissue paper industry is 

being materially harmed by reason of the imports of dumped tissue paper. It 

determined that the volume of tissue paper imports has been steadily and quickly rising 

at the expense of the domestic industry. It also found that imports have undercut the 

price of the domestic product, resulting in a significant decline in the health of the 

domestic industry. Based on those subsidiary findings, the Commission determined 

that dumped tissue paper is materially harming the domestic industry. 

 The three dissenting commissioners found that consumer and bulk tissue paper 

are separate products and therefore analyzed the domestic bulk tissue paper industry 

and the domestic consumer tissue paper industry separately. They found that the U.S. 

bulk tissue paper industry was materially injured by reason of imports of bulk tissue 

paper, but that the U.S. consumer tissue paper industry was not materially injured or 

threatened with material injury by reason of imports of consumer tissue paper. 

 Cleo and Target appealed the Commission’s determination to the Court of 

International Trade. They argued (1) that the Commission incorrectly found that bulk 

and consumer tissue paper are a single like product, (2) that the Commission 

improperly considered Cleo’s and Target’s imports in its material injury determination 

and that its causation analysis was thus flawed, (3) that the Commission erred in 

concluding that the domestic products were being undersold by the imports, and (4) that 

the Commission used flawed financial data when concluding that the domestic industry 

was in poor health. The Court of International Trade rejected those arguments and held 
2007-1036,-1037 6 

that substantial evidence supported the Commission’s material injury determination. 

Cleo and Target appeal, repeating the arguments they made in the trial court. 

II 

Like the Court of International Trade, this court reviews the Commission’s 

determination for substantial evidence. Nippon Steel Corp. v. United States, 458 F.3d 

1345, 1350 (Fed. Cir. 2006), (citing Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 

1559 n.10 (Fed. Cir. 1984), and 19 U.S.C. § 1516a(b)(1)(B)(i)). When performing a 

substantial evidence review, however, “we give great weight to ‘the informed opinion of 

the Court of International Trade.’ Indeed, it is nearly always the starting point of our 

analysis.” Nippon Steel, 458 F.3d at 1351 (quoting Suramerica de Aleaciones 

Laminadas, C.A. v. United States, 44 F.3d 978, 983 (Fed. Cir. 1994)). 

The substantial evidence test requires only that there be evidence that a 

reasonable mind might accept as adequate to support a conclusion. Universal Camera 

Corp. v. NLRB, 340 U.S. 474, 477 (1951). Although a reviewing court must take into 

account contradictory evidence or any evidence in the record that undermines the 

agency’s finding, the substantial evidence test does not require that there be an 

absence of evidence detracting from the agency’s conclusion, nor is there an absence 

of substantial evidence simply because the reviewing court would have reached a 

different conclusion based on the same record. Id. at 487-88; Am. Silicon Techs. v. 

United States, 261 F.3d 1371, 1376 (Fed. Cir. 2001); U.S. Steel Group v. United States, 

96 F.3d 1352, 1357 (Fed. Cir. 1996). Having reviewed the administrative record and 

the trial court’s analysis, we hold that substantial evidence supports the Commission’s 

affirmative material injury determination. 
2007-1036,-1037 7 

III 

 The appellants first challenge the Commission’s finding that bulk and consumer 

tissue paper constitute a single domestic like product. They challenge the 

Commission’s subsidiary findings on the factors that bear on the like product inquiry as 

well as the Commission’s ultimate like product determination, which was based on its 

assessment of those factors. The appellants also argue that the Commission’s like 

product determination is contrary to previous material injury determinations with respect 

to other industries. 

A 

 In conducting its like product analysis, the Commission found that bulk and 

consumer tissue paper are similar in physical appearance and use. Both products are 

made from “jumbo rolls” of tissue paper and both have similar typical end uses, i.e., for 

wrapping products or gifts. Both types of tissue paper come in a variety of grades, 

colors, designs, and dimensions. While some consumer tissue paper undergoes 

special treatment and some bulk tissue paper is cut in special ways, both types are 

generally sold as solid color sheets. The Commission further found that both types of 

tissue paper come in a variety of overlapping sizes, although bulk tissue paper is more 

often sold flat or folded only once. Consumer tissue paper is generally sold folded more 

than once, but is sometimes sold flat. The Commission noted that while bulk tissue 

paper is generally sold in large quantities and consumer tissue paper is generally 

packaged and sold in smaller quantities for retail sale, it is increasingly common for 

retail sales to consist of larger quantity “club packs” or seasonal packages, and it is 

increasingly common for smaller retail operations to use those larger packages of 
2007-1036,-1037 8 

consumer paper to wrap purchases. The Commission thus found that there is no sharp 

distinction between the physical characteristics and uses of the two products. 

 Target argues that consumer tissue paper generally comes in more colors than 

bulk tissue paper, and Cleo argues that the evidence is insufficient to support the 

Commission’s conclusion that the two products come in similar sizes. It is true, as the 

Commission noted, that there are some differences in the colors available in bulk and 

consumer tissue paper. In addition, while the evidence cited by the Commission shows 

that bulk and consumer tissue paper are often sold in similar or identical sizes, Cleo is 

correct that the evidence also shows that the sizes fail to overlap a significant part of the 

time. Despite those differences, however, substantial evidence supports the 

Commission’s determination that bulk and consumer tissue paper share the same 

general physical characteristics. 

 The Commission also found that the manufacturing and production process is 

similar for the two types of tissue paper. The evidence shows that both types of tissue 

paper are made from the same materials and that those companies that produce both 

bulk and consumer tissue paper manufacture them on the same machines run by the 

same employees. The appellants point out that fewer than half the domestic tissue 

paper manufacturers produce both types of tissue paper and that only one domestic 

manufacturer produces significant quantities of both. That one manufacturer, however, 

produces a very large percentage of all domestic tissue paper. The appellants also 

argue that consumer tissue paper is packaged and folded differently from bulk tissue 

paper. While it is true that the manufacturing steps for the products are not identical, 

there remains significant overlap in the overall manufacturing process. Thus, the 
2007-1036,-1037 9 

evidence is sufficient to support the Commission’s conclusion that the two products are 

reasonably similar with respect to their manufacture. 

 With regard to consumer perceptions and interchangeability, the Commission 

found the evidence to be mixed. Although some producers, importers, and purchasers 

perceived the two types of tissue paper to be interchangeable, others did not. A review 

of the individual responses to the Commission’s questionnaires relating to 

interchangeability supports the Commission’s determination that consumer perceptions 

regarding interchangeability are mixed. 

 Finally, the Commission found only limited overlap between the types of tissue 

paper with regard to channels of distribution and price. The evidence shows that, 

although the distinction has been lessening recently, consumer tissue paper is primarily 

sold to retailers and then to retail customers, while bulk tissue paper is primarily sold 

through distributors and then to end-users such as department stores. The evidence 

also shows that the price of consumer tissue paper is generally higher than the price of 

bulk tissue paper. The Commission noted, however, that those differences are 

mitigated somewhat by the fact that there is a modest but significant market for 

packages containing quantities of tissue paper falling between the traditional sheet 

counts for bulk and consumer packages. Those seasonal packages and “club packs,” 

according to the Commission, blur the line between the channels of distribution. The 

pricing of those packages also indicates that the price of tissue paper depends largely 

on the number of sheets sold in a package. Given that evidence, the Commission’s 

determination that there is some limited overlap between the two types of tissue paper 

with respect to price and channels of distribution is supported by substantial evidence. 
2007-1036,-1037 10 

 In sum, the Commission reasonably found that there is significant overlap in 

physical characteristics and uses as well as in the manufacturing process; mixed 

evidence regarding interchangeability and consumer perceptions; and only limited 

overlap in channels of distribution and price. While the question on the facts is a close 

one, a reasonable factfinder applying the Commission’s six-factor test could conclude 

from the evidence before the Commission that bulk and consumer tissue paper are like 

products, and accordingly that they are sufficiently similar that dumped imports of one 

type of tissue paper have significant market effects on the other.1

 The fact that a 

reasonable factfinder might have concluded otherwise does not mean that the 

Commission’s decision was unsupported by substantial evidence. Nippon Steel, 458 

F.3d at 1358. 

B 

 The appellants argue that prior determinations by the Commission relating to 

other kinds of products require that bulk and consumer tissue paper be classified as 

separate products. They argue that it was arbitrary for the Commission to find those 

types of tissue paper to constitute a single like product when it has found that particular 

consumer or retail goods constituted separate products from similar goods produced for 

industrial or nonconsumer use. They rely principally on the Commission’s decision in 

 

1

 Contrary to the appellants’ contention, we do not perceive that the 

Commission’s like product analysis was biased towards finding that bulk and consumer 

tissue paper are a single like product in order to conform its finding with the scope of 

Commerce’s less than fair value finding. Although the less than fair value finding is 

necessarily the starting point of the Commission’s like product analysis, see 19 U.S.C. 

§ 1677(10), the Commission cited the settled rule that Commerce’s finding does not 

control the Commission’s determination, and we see no sign that the Commission 

allowed Commerce’s finding to shape its like product determination in this case. 
2007-1036,-1037 11 

Folding Gift Boxes from China, Inv. No. 731-TA-921 (Final), USITC Pub. 3480 (2001), 

which involved gift boxes sold to stores to give to their customers and gift boxes sold to 

merchants for resale. 

As the trial court explained, each injury investigation by the Commission “is sui

generis, involving a unique combination and interaction of many economic variables.” 

Nucor Corp. v. United States, 414 F.3d 1331, 1340 (Fed. Cir. 2005). For that reason, 

prior determinations by the Commission with regard to one industry typically provide 

little guidance for later determinations with regard to different industries. Each of the 

prior Commission determinations on which the appellants rely involved significantly 

different facts. In its decision in this case, the Commission specifically distinguished the 

Folding Gift Boxes case, explaining that the production process for the two types of gift 

boxes was different and that storage and warehousing requirements differed between 

the two types of gift boxes in ways not present in the tissue paper industry. The 

Commission also noted that nothing in the gift box market blurred the distinction 

between the two products in the way that club packs and other large-count formats did 

for the tissue paper market. Although the Commission in each of the cases on which 

the appellants rely found that the domestic industry was not materially injured by 

dumped imports, we discern nothing in those cases that reflects an inconsistent 

application of legal standards by the Commission. The differences in outcome thus do 

not indicate that the Commission either committed legal error in the methodology it used 

in this case or departed from the mode of analysis it regularly employs in material injury 

investigations. 
2007-1036,-1037 12 

IV 

 The appellants also challenge the Commission’s determination that the dumped 

imports are causing material injury to the domestic tissue paper industry. The 

Commission found that the volume of dumped tissue paper from China increased 

sharply over the period examined and that the price of the imported paper significantly 

undercut the price of domestically produced paper during that period. Those factors, 

the Commission found, led to a dramatic transfer of market share from the domestic 

producers to the importers, which in turn resulted in a decline in the health of the 

domestic tissue paper industry. The appellants assert that the Commission overstated 

the volume of dumped tissue paper imports and that the Commission improperly 

credited evidence of price undercutting. Cleo also argues that the Commission 

misinterpreted the financial data relating to the domestic industry and that, when 

properly analyzed, the data fails to shows that the domestic industry grew weaker 

during the period examined. 

A 

The Commission overstated the pertinent volume of dumped tissue paper, 

according to the appellants, because it impermissibly included Cleo’s and Target’s 

imports of consumer tissue paper in the volume calculations for the period examined. 

They argue that those imports were attributable to economic factors unrelated to the 

availability of dumped imports and that those imports therefore did not cause injury to 

the domestic industry. Cleo’s argument is as follows: In October 2002, Cleo purchased 

Crystal, a tissue paper producer, and entered into a supply contract for jumbo rolls with 

a paper-making company previously related to Crystal. In 2003, however, Crystal 
2007-1036,-1037 13 

halted production following what Cleo terms a “sudden and unexpected decision” by the 

paper-making company to renege on its supply contract. Additionally, in 2003 Crystal 

lost the services of its rotogravure printer. Cleo claims that it could not find adequate 

replacements for those supplies domestically and therefore was forced to stop 

production altogether. It contends that increased reliance on imports was necessary to 

allow Cleo to fulfill its customer’s orders. Cleo thus argues that its decreased 

production and increased reliance on imports was due to supply disruption and not to 

the availability of low-price dumped imports. For that reason, Cleo contends that the 

imports attributable to Cleo following its supply disruption must be excluded from the 

Commission’s volume calculations. 

 Although acknowledging that the disruption of Cleo’s supply contributed to its 

decision to import tissue paper from China, the Commission found that the evidence 

before it did not support the conclusion that the supply shortage was the primary 

motivation for that decision. The Commission noted that both Cleo and Crystal were 

importing significant amounts of tissue paper from China prior to Crystal’s acquisition by 

Cleo and prior to the supply disruption. It also noted that there was a domestic supplier 

that could have provided Cleo with jumbo rolls of tissue paper and that jumbo rolls could 

have been imported, but that Cleo elected not to purchase jumbo rolls and instead 

opted to import finished tissue paper. After considering conflicting testimony about 

whether sufficient rotogravure printing services or acceptable substitutes were available 

domestically, the Commission also concluded that there were enough quality domestic 

printing services to meet Cleo’s needs. Moreover, the Commission noted that prior to 

its acquisition by Cleo, Crystal was investigating the possibility of filing an antidumping 
2007-1036,-1037 14 

petition covering tissue paper from China. Taking all that evidence into account, the 

Commission determined that lack of supply was not the primary motivation behind 

Cleo’s increased imports of finished tissue paper. 

 Cleo argues that any imports by Crystal or Cleo that predated Cleo’s acquisition 

of Crystal are irrelevant because the business model of the combined corporate entity 

changed at the time Crystal was acquired. In particular, Cleo contends that its decision 

to purchase a paper manufacturer shows that Cleo did not regard the price of imported 

goods as a reason to import tissue paper products. While that argument has some 

appeal, the evidence can also be interpreted, as the Commission did, to indicate that 

Cleo and Crystal were both interested in taking advantage of lower-priced tissue paper 

from China. The record contains evidence that Cleo purchased Crystal in large part to 

obtain Crystal’s name and its marketing and distribution facilities, not necessarily for its 

production capabilities. That view is strengthened by the fact that Cleo did not act to 

continue its “producer” business model by purchasing jumbo rolls domestically or 

abroad after encountering supply issues, but instead opted to import all its consumer 

tissue paper needs from China. The fact that Crystal immediately stopped pursuing an 

antidumping action when it was purchased by Cleo lends further credence to the 

Commission’s view. 

The appellants also argue that the Commission impermissibly substituted its 

business judgment for Cleo’s when it concluded that sufficient supplies of jumbo rolls 

and printing services were available domestically. The Commission, however, came to 

its conclusion on supply availability by comparing the testimony of various industry 

leaders and finding some more credible than others. The Commission’s conclusion on 
2007-1036,-1037 15 

that issue is a factual determination that is amply supported by testimony and other 

record evidence. In light of that conclusion, the prior imports by Cleo and Crystal, the 

prior investigation into initiating an antidumping action, and the plausible alternative 

business motivation for Cleo’s decision to rely on imported tissue paper, it was 

reasonable for the Commission to conclude that Cleo’s imports were not solely 

attributable to a disruption in supply. 

 In addition to challenging the Commission’s inclusion of Cleo’s imports in its 

material injury analysis, the appellants argue that the Commission should have 

excluded Target’s consumer tissue paper imports from consideration. They claim that 

Target’s imports were not based on price but were necessary because the domestic 

industry failed to meet Target’s needs. According to the appellants, Target created a 

new market for tissue paper by introducing “fully coordinated mix-and-match color 

programs” for gift bags. The appellants argue that the domestic industry did not have 

the capacity to provide the “specialized collated presentations and packaging” Target 

needed for that program and that no domestic producer attempted to meet Target’s 

needs until 2004. Even at that time, the appellants argue, the one producer who made 

such an offer was unable to qualify because it did not meet Target’s internal rules for 

suppliers. Additionally, the appellants assert that the domestic producer from which 

Target purchased consumer paper during the relevant period delivered inferior goods, 

for which Target’s senior buyer was forced to issue an exemption from Target’s internal 

gift bag purchasing policy. If the domestic industry could not or would not supply 

Target’s requirements, the appellants argue, the volume of Target’s consumer imports 
2007-1036,-1037 16 

should not be included when determining whether the domestic industry was harmed by 

dumped tissue paper imports. 

 The Commission found that, contrary to the appellants’ assertions, the domestic 

industry was able and willing to supply Target’s needs. It credited evidence that Target 

had purchased and was continuing to purchase consumer tissue paper from domestic 

suppliers despite Target’s assertions regarding the quality of the purchased products. 

The Commission also found that the domestic industry competed for and could produce 

so-called “specialty paper,” a type of consumer paper Target uses in some of its gift bag 

packages. That evidence is sufficient to support the Commission’s conclusion that 

Target did not import its consumer tissue paper solely because of the domestic 

industry’s unwillingness or inability to satisfy Target’s needs. 

 The Commission noted that even if Cleo’s and Target’s consumer imports were 

excluded, there would still be “significant market share gains by subject imports of bulk 

tissue at the expense of domestic producers,” as well as a “sharp drop in profitability of 

the bulk tissue operations of domestic producers.” Our review of the data shows that 

conclusion to be supported by substantial evidence. Accordingly, the Commission’s 

material injury determination would be supportable even without consideration of the 

Target and Cleo imports during the period examined. 

B 

 The appellants next argue that the Commission incorrectly interpreted the price 

data when it concluded that imported tissue paper significantly undercut the domestic 

industry’s prices during the period examined. To evaluate that question, the 

Commission looked at pricing information for four categories of goods: (1) white 
2007-1036,-1037 17 

consumer tissue paper, (2) solid color consumer tissue paper, (3) combination color 

consumer tissue paper, and (4) white bulk tissue paper. The Commission calculated 

the weighted average price for each category during each quarter for which there was 

comparison data. The data showed that imports undersold the domestic product in 6 of 

15 quarters for the first category, 12 of 13 quarters for the second category, 4 of 4 

quarters for the third category, and 11 of 12 quarters for the fourth category. 

 The Commission also cited evidence that price was usually the most important 

factor for domestic purchasers, that a great majority of domestic purchasers reported 

that the Chinese imports were priced lower than the domestic product, and that virtually 

all responding purchasers reported that they had shifted their buying to Chinese imports 

since 2001. Based on that evidence, the Commission found that the imported tissue 

paper was undercutting domestic prices. 

 The appellants first argue that, based on their contention that the Commission 

erred in its like product analysis, the Commission should not have considered evidence 

of underselling in the bulk tissue paper market in determining whether there was 

underselling in the consumer tissue paper market. Because we have upheld the 

Commission’s like product determination, that argument necessarily fails. 

The appellants next challenge the averaged price data, specifically the first, 

second, and third categories. Cleo contends that the imported tissue paper in the first 

category undersold the domestic tissue paper in 4 quarters instead of 6. It notes that 

the average price column of the Commission’s report for the first category only goes to 

two decimal points and that, at that level of generality, there were 4 quarters in which 

the imported tissue paper undersold the domestic product, 4 quarters in which the price 
2007-1036,-1037 18 

was equal, and 7 quarters in which imported tissue paper sold at a price higher than the 

domestic product. The Commission, however, had and used reliable data going beyond 

two decimal points to arrive at its conclusion that there was underselling in 6 quarters. 

In the table cited by Cleo, there is also a column reporting the percentage by which the 

imported tissue paper undersold the domestic tissue paper. That column lists 6 

quarters in which the imported tissue paper undersold the domestic product, a 

conclusion confirmed by examining the raw data in the report. Given the prices involved 

in this market, even a small price difference can be significant. We therefore reject the 

appellants’ argument that the Commission’s finding of underselling in 6 quarters with 

regard to the first category is not supported by substantial evidence. 

The appellants also argue that the data for the second category is fatally deficient 

because it does not contain proper direct comparisons between domestic and imported 

tissue paper. The data, however, contains information regarding both domestic and 

import sales to retailers, and it shows that the imported tissue paper was priced lower 

than the domestic product in 12 of the 13 quarters for which there is data. Comparing 

prices for sales to retailers is a fair comparison and one on which the Commission 

reasonably relied. Nor does the likelihood of volume discounts in the tissue paper 

industry require this data to be discarded, as the appellants contend. The domestic 

industry sold more tissue paper to retailers in many quarters, and the price for those 

quarters was higher than the price of the imported paper. 

The appellees agree with the Commission and the appellants that only limited 

data is available for the third category. Even without the data from the third category, 

however, the evidence is sufficient to support the Commission’s conclusion. Excluding 
2007-1036,-1037 19 

 

the third category, the data indicates that imported tissue paper undersold the domestic 

products in 29 of 41 quarters and, overall, undersold the domestic products by a 

significant margin. The appellants do not challenge the other price evidence. 

Accordingly, the Commission’s determination that the imported products were 

undercutting domestic prices is supported by substantial evidence. 

C 

Finally, Cleo argues that if its imports are removed from the calculations, the data 

fails to show any decline in the wellbeing of either the domestic consumer tissue 

industry or the combined domestic consumer and domestic bulk tissue paper industry. 

We have already held, however, that the Commission’s determinations that consumer 

tissue paper and bulk tissue paper are part of a single industry and that Cleo’s 

consumer imports should be included in the material injury analysis are both supported 

by substantial evidence. Viewed in light of those determinations, the data for domestic 

producers of consumer and bulk tissue paper over the period examined supports the 

Commission’s conclusion that the health of the industry has been declining as the 

volume of subject imports has increased.2

 That data shows, for example, that during 

the examination period the domestic industry’s output fell by 16.8 percent, its capacity 

utilization fell by 10.5 percent, its domestic shipments fell by 18.3 percent, and its net 

sales fell by 26.7 percent. In addition, the total wages and number of employees in the 

2

 Cleo also argues that there is a defect in the industry data due to the 

relationship between the timing of one company’s fiscal year reporting and that 

company’s purchase of a particular asset. Cleo acknowledges, however, that the 

Commission obtained corrected data after discovering the deficiency. Because the 

Commission was aware of that issue and considered the corrected data when 

concluding that the domestic tissue paper industry is being harmed by subject imports, 

Cleo’s argument on this point fails. 
2007-1036,-1037 20 

industry declined, the domestic industry’s operating profit margins decreased from 6.6 

percent to 3.9 percent, and its operating income fell from $8.2 million to $3.6 million. In 

light of that evidence, and accepting the Commission’s underlying determinations 

regarding the scope of the industry and the justification for including data relating to 

Cleo in its material injury analysis, we hold that the Commission’s material injury 

determination is supported by substantial evidence and therefore must be sustained. 

AFFIRMED.