Notice2023-27699
Certain Pea Protein From the People's Republic of China: Preliminary Affirmative Countervailing Duty Determination, Preliminary Affirmative Critical Circumstances Determination, and Alignment of Final Determination With Final Antidumping Duty Determination
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 18, 2023
Issuing agencies
Commerce DepartmentInternational Trade Administration
Abstract
The U.S. Department of Commerce (Commerce) preliminarily determines that countervailable subsidies are being provided to producers and exporters of certain pea protein (pea protein) from the People's Republic of China (China) during the period of investigation, January 1, 2022, through December 31, 2022. Interested parties are invited to comment on this preliminary determination.
Full Text
<html>
<head>
<title>Federal Register, Volume 88 Issue 241 (Monday, December 18, 2023)</title>
</head>
<body><pre>
[Federal Register Volume 88, Number 241 (Monday, December 18, 2023)]
[Notices]
[Pages 87403-87406]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-27699]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[C-570-155]
Certain Pea Protein From the People's Republic of China:
Preliminary Affirmative Countervailing Duty Determination, Preliminary
Affirmative Critical Circumstances Determination, and Alignment of
Final Determination With Final Antidumping Duty Determination
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: The U.S. Department of Commerce (Commerce) preliminarily
determines that countervailable subsidies are being provided to
producers and exporters of certain pea protein (pea protein) from the
People's Republic of China (China) during the period of investigation,
January 1, 2022, through December 31, 2022. Interested parties are
invited to comment on this preliminary determination.
DATES: Applicable December 18, 2023.
FOR FURTHER INFORMATION CONTACT: Kristen Johnson and Laura Griffth, AD/
CVD Operations, Office III, Enforcement and Compliance, International
Trade Administration, U.S. Department of Commerce, 1401 Constitution
Avenue NW, Washington, DC 20230; telephone: (202) 482-4793 and (202)
482-6430, respectively.
SUPPLEMENTARY INFORMATION:
Background
This preliminary determination is made in accordance with section
703(b) of the Tariff Act of 1930, as amended (the Act). Commerce
published the notice of initiation of this investigation on August 7,
2023.\1\ On September 8, 2023, Commerce postponed the preliminary
determination of this investigation until December 11, 2023.\2\
---------------------------------------------------------------------------
\1\ See Certain Pea Protein from the People's Republic of China:
Initiation of Countervailing Duty Investigation, 88 FR 52116 (August
7, 2023) (Initiation Notice).
\2\ See Certain Pea Protein from the People's Republic of China:
Postponement of Preliminary Determination in the Countervailing Duty
Investigation, 88 FR 62055 (September 8, 2023).
---------------------------------------------------------------------------
[[Page 87404]]
For a complete description of the events that followed the
initiation of this investigation, see the Preliminary Decision
Memorandum.\3\ A list of topics discussed in the Preliminary Decision
Memorandum is included in Appendix II of this notice. The Preliminary
Decision Memorandum is a public document and is on file electronically
via Enforcement and Compliance's Antidumping and Countervailing Duty
Centralized Electronic Service System (ACCESS). ACCESS is available to
registered users at <a href="https://access.trade.gov">https://access.trade.gov</a>. In addition, a complete
version of the Preliminary Decision Memorandum can be accessed directly
at <a href="https://access.trade.gov/public/FRNoticesListLayout.aspx">https://access.trade.gov/public/FRNoticesListLayout.aspx</a>.
---------------------------------------------------------------------------
\3\ See Memorandum, ``Decision Memorandum for the Preliminary
Determination of the Countervailing Duty Investigation of Certain
Pea Protein from the People's Republic of China,'' dated
concurrently with, and hereby adopted by, this notice (Preliminary
Decision Memorandum).
---------------------------------------------------------------------------
Scope of the Investigation
The product covered by this investigation is pea protein from
China. For a complete description of the scope of this investigation,
see Appendix I.
Scope Comments
In accordance with the preamble to Commerce's regulations,\4\ the
Initiation Notice set aside a period of time for parties to raise
issues regarding product coverage (i.e., scope).\5\ Commerce received
timely filed comments from interested parties on the scope of the
investigation as it appeared in the Initiation Notice. Commerce intends
to issue its preliminary decision regarding comments concerning the
scope of the antidumping duty (AD) and countervailing duty (CVD)
investigations in the preliminary determination of the companion AD
investigation, the deadline for which is February 7, 2024.\6\ We will
incorporate the scope decision from the AD investigation into the scope
of the final CVD determination for this investigation after considering
any relevant comments submitted in case and rebuttal briefs.
---------------------------------------------------------------------------
\4\ See Antidumping Duties; Countervailing Duties, Final Rule,
62 FR 27296, 27323 (May 19, 1997).
\5\ See Initiation Notice, 88 FR at 52117.
\6\ See Certain Pea Protein from the People's Republic of China:
Postponement of the Preliminary Determination in the Less-Than-Fair-
Value Investigation, 88 FR 82831 (November 27, 2023) (AD
Postponement Notice).
---------------------------------------------------------------------------
Methodology
Commerce is conducting this investigation in accordance with
section 701 of the Act. For each of the subsidy programs found
countervailable, Commerce preliminarily determines that there is a
subsidy, i.e., a financial contribution by an ``authority'' that
confers a benefit to the recipient, and that the subsidy is
specific.\7\ For a full description of the methodology underlying our
preliminary conclusions, see the Preliminary Decision Memorandum.
---------------------------------------------------------------------------
\7\ See sections 771(5)(B) and (D) of the Act regarding
financial contribution; section 771(5)(E) of the Act regarding
benefit; and section 771(5A) of the Act regarding specificity.
---------------------------------------------------------------------------
Commerce notes that, in making the preliminary findings, it relied,
in part, on facts available, and, because it finds that one or more
respondents did not act to the best of their ability to respond to
Commerce's requests for information, it drew an adverse inference where
appropriate in selecting from among the facts otherwise available.\8\
For further information, see ``Use of Facts Otherwise Available and
Adverse Inferences'' in the Preliminary Decision Memorandum.
---------------------------------------------------------------------------
\8\ See sections 776(a) and (b) of the Act.
---------------------------------------------------------------------------
Preliminary Affirmative Determination of Critical Circumstances
In accordance with section 703(e)(1) of the Act, we preliminarily
find that critical circumstances exist with respect to imports of
subject merchandise for Yantai Oriental Protein Tech Co., Ltd. (Yantai
Oriental), Zhaoyuan Junbang Trading Co., Ltd. (Junbang), the non-
responsive companies,\9\ and all other producers and/or exporters. For
a full discussion of our preliminary critical circumstances
determination, see the ``Critical Circumstances'' section of the
Preliminary Decision Memorandum.
---------------------------------------------------------------------------
\9\ The non-responsive companies are: Focusherb LLC, Golden
Protein Limited, Shandong Jianyuan Bioengineering Co., and Yantai
Wanpy International Trade.
---------------------------------------------------------------------------
Alignment
As noted in the Preliminary Decision Memorandum, in accordance with
section 705(a)(1) of the Act and 19 CFR 351.210(b)(4)(i), Commerce is
aligning the final CVD determination in this investigation with the
final determination in the companion AD investigation of pea protein
from China based on a request made by PURIS Proteins, LLC (the
petitioner).\10\ Consequently, the final CVD determination will be
issued on the same date as the final AD determination, which is
currently scheduled no later than April 22, 2024, unless postponed.\11\
---------------------------------------------------------------------------
\10\ See Petitioner's Letter, ``Petitioner's Request to Align
Countervailing Duty Investigation Final Determination with
Antidumping Duty Investigation Final Determination,'' dated November
14, 2023.
\11\ See AD Postponement Notice.
---------------------------------------------------------------------------
All-Others Rate
Sections 703(d) and 705(c)(5)(A) of the Act provide that in the
preliminary determination, Commerce shall determine an estimated all-
others rate for companies not individually examined. This rate shall be
an amount equal to the weighted average of the estimated subsidy rates
established for those companies individually examined, excluding any
zero and de minimis rates and any rates based entirely under section
776 of the Act.
In this investigation, Commerce calculated individual estimated
countervailable subsidy rates for Junbang and Yantai Oriental that are
not zero, de minimis, or based entirely on the facts otherwise
available. Commerce calculated the all-others rate using a simple
average of the individual estimated subsidy rates calculated for the
examined respondents.\12\
---------------------------------------------------------------------------
\12\ When two respondents are under examination, Commerce
normally calculates (A) a weighted-average of the estimated subsidy
rates calculated for the examined respondents using each company's
proprietary U.S. sale quantities for the merchandise under
consideration; (B) a simple average of the estimated subsidy rates
calculated for the examined respondents; and (C) a weighted-average
of the estimated subsidy rates calculated for the examined
respondents using each company's publicly-ranged U.S. sale
quantities for the merchandise under consideration. Commerce then
compares (B) and (C) to (A) and selects the rate closest to (A) as
the most appropriate rate for all other producers and exporters.
See, e.g., Ball Bearings and Parts Thereof from France, Germany,
Italy, Japan, and the United Kingdom: Final Results of Antidumping
Duty Administrative Reviews, Final Results of Changed-Circumstances
Review, and Revocation of an Order in Part, 75 FR 53661, 53663
(September 1, 2010).
---------------------------------------------------------------------------
Rate for Non-Responsive Companies
Four potential exporters and/or producers of pea protein from China
did not respond to Commerce's quantity and value (Q&V)
questionnaire.\13\ We find that, by not responding to the Q&V
questionnaire, these companies withheld requested information and
significantly impeded this proceeding. Thus, in reaching our
preliminary determination, pursuant to sections 776(a)(2)(A) and (C) of
the Act, we are basing the CVD subsidy rate for these four companies on
facts otherwise available.
---------------------------------------------------------------------------
\13\ The four companies are Focusherb LLC, Golden Protein
Limited, Shandong Jianyuan Bioengineering Co., and Yantai Wanpy
International Trade.
---------------------------------------------------------------------------
We further preliminarily determine that an adverse inference is
warranted, pursuant to section 776(b) of the Act. By failing to submit
responses to Commerce's Q&V Questionnaire, the four companies did not
cooperate to the best of their ability in this investigation.
Accordingly, we preliminarily find that an adverse inference is
warranted to ensure that the four companies will not
[[Page 87405]]
obtain a more favorable result than had they fully complied with our
request for information. For more information on the application of
adverse facts available to the non-responsive companies, see ``Use of
Facts Otherwise Available and Adverse Inferences'' in the Preliminary
Determination Memorandum.
Preliminary Determination
Commerce preliminarily determines that the following estimated
countervailable subsidy rates exist:
---------------------------------------------------------------------------
\14\ Commerce preliminary finds the following companies to be
cross-owned with Yantai Oriental: Jiujiang Tiantai Food Co., Ltd.;
Shandong Sanjia Investment Holding Group Co., Ltd.; Yantai Yiyuan
Bioengineering Co., Ltd.; and Yantai Zhongzhen Trading Co., Ltd.
\15\ Commerce preliminary finds Yantai Shuangta Food Co. Ltd. to
be cross-owned with Junbang.
------------------------------------------------------------------------
Subsidy rate (percent
Company ad valorem)
------------------------------------------------------------------------
Yantai Oriental Protein Tech Co., Ltd.\14\..... 16.46
Zhaoyuan Junbang Trading Co., Ltd.\15\......... 15.09
Focusherb LLC.................................. 342.53
Golden Protein Limited......................... 342.53
Shandong Jianyuan Bioengineering Co............ 342.53
Yantai Wanpy International Trade............... 342.53
All Others..................................... 15.78
------------------------------------------------------------------------
Suspension of Liquidation
In accordance with section 703(e)(2)(A) of the Act, because we find
that critical circumstances exist for Junbang, Yantai Oriental, the
non-response companies, and all other producers and/or exporters,
Commerce will direct U.S. Customs and Border Protection (CBP) to
suspend liquidation of entries of subject merchandise as described in
the scope of the investigation section entered, or withdrawn from
warehouse, for consumption on or after the date 90 days prior to the
date of publication of this notice in the Federal Register. Further,
pursuant to 19 CFR 351.205(d), Commerce will instruct CBP to require a
cash deposit equal to the rates indicated above.
Disclosure
Commerce intends to disclose its calculations and analysis
performed to interested parties in this preliminary determination
within five days of its public announcement, or if there is no public
announcement, within five days of the date of publication of this
notice in the Federal Register in accordance with 19 CFR 351.224(b).
Verification
As provided in section 782(i)(1) of the Act, Commerce intends to
verify the information relied upon in making its final determination.
Public Comment
All interested parties will have the opportunity to submit scope
case and rebuttal briefs on the preliminary decision regarding the
scope of the AD and CVD pea protein investigations. The deadlines to
submit scope case and rebuttal briefs will be provided in the
preliminary scope decision memorandum. For all scope case and rebuttal
briefs, parties must file identical documents simultaneously on the
records of the AD and CVD pea protein investigations. No new factual
information or business proprietary information may be included in
either scope case or rebuttal briefs.
All interested parties will also have the opportunity to submit
case briefs or other written comments on non-scope issues within this
CVD pea protein investigation. Interested parties will be notified of
the timeline for the submission of case briefs and written comments at
a later date. Rebuttal briefs, limited to issues raised in the case
briefs, may be filed not later than five days after the date for filing
case briefs.\16\ Interested parties who submit case briefs or rebuttal
briefs in this proceeding must submit: (1) a table of contents listing
each issue; and (2) a table of authorities.\17\ As provided under 19
CFR 351.309(c)(2) and (d)(2), in prior proceedings we have encouraged
interested parties to provide an executive summary of their brief that
should be limited to five pages total, including footnotes. In this
investigation, we instead request that interested parties provide at
the beginning of their briefs a public, executive summary for each
issue raised in their briefs.\18\ Further, we request that interested
parties limit their executive summary of each issue to no more than 450
words, not including citations. We intend to use the executive
summaries as the basis of the comment summaries included in the issues
and decision memorandum that will accompany the final determination in
this investigation. We request that interested parties include
footnotes for relevant citations in the executive summary of each
issue. Note that Commerce has amended certain of its requirements
pertaining to the service of documents in 19 CFR 351.303(f).\19\
---------------------------------------------------------------------------
\16\ See 19 CFR 351.309(d); see also Administrative Protective
Order, Service, and Other Procedures in Antidumping and
Countervailing Duty Proceedings, 88 FR 67069, 67077 (September 29,
2023) (APO, Service, and Other Procedures).
\17\ See 19 CFR 351.309(c)(2) and (d)(2).
\18\ We use the term ``issue'' here to describe an argument that
Commerce would normally address in a comment of the Issues and
Decision Memorandum.
\19\ See APO, Service, and Other Procedures, 88 FR at 67069.
---------------------------------------------------------------------------
Pursuant to 19 CFR 351.310(c), interested parties who wish to
request a hearing, limited to issues raised in the case and rebuttal
briefs, must submit a written request to the Assistant Secretary for
Enforcement and Compliance, U.S. Department of Commerce, within 30 days
after the date of publication of this notice. Requests should contain
(1) the party's name, address, and telephone number; (2) the number of
participants and whether any participant is a foreign national; and (3)
a list of the issues to be discussed. If a request for a hearing is
made, Commerce intends to hold the hearing at a date, time, and
location to be determined.\20\
---------------------------------------------------------------------------
\20\ See 19 CFR 351.310(d).
---------------------------------------------------------------------------
U.S. International Trade Commission (ITC) Notification
In accordance with section 703(f) of the Act, Commerce will notify
the ITC of its determination. If Commerce's final determination is
affirmative, the ITC will determine before the later of 120 days after
the date of this preliminary determination or 45 days after the final
determination whether imports of pea protein from China are materially
injuring, or threaten material injury to, the U.S. industry.
Notification to Interested Parties
This determination is issued and published pursuant to sections
703(f)
[[Page 87406]]
and 777(i) of the Act and 19 CFR 351.205(c).
Dated: December 11, 2023.
Abdelali Elouaradia,
Deputy Assistant Secretary for Enforcement and Compliance.
Appendix I
Scope of the Investigation
The product within the scope of this investigation is high
protein content (HPC) pea protein, which is a protein derived from
peas (including, but not limited to, yellow field peas and green
field peas) and which contains at least 65 percent protein on a dry
weight basis. HPC pea protein may also be identified as, for
example, pea protein concentrate, pea protein isolate, hydrolyzed
pea protein, pea peptides, and fermented pea protein. Pea protein,
including HPC pea protein, has the Chemical Abstracts Service (CAS)
registry number 222400-29-5.
The scope covers HPC pea protein in all physical forms,
including all liquid (e.g., solution) and solid (e.g., powder)
forms, regardless of packaging or the inclusion of additives (e.g.,
flavoring, suspension agents, preservatives).
The scope also includes HPC pea protein described above that is
blended, combined, or mixed with non-subject pea protein or with
other ingredients (e.g., proteins derived from other sources,
fibers, carbohydrates, sweeteners, and fats) to make products such
as protein powders, dry beverage blends, and protein fortified
beverages. For any such blended, combined, or mixed products, only
the HPC pea protein component is covered by the scope of this
investigation. HPC pea protein that has been blended, combined, or
mixed with other products is included within the scope, regardless
of whether the blending, combining, or mixing occurs in third
countries.
HPC pea protein that is otherwise within the scope is covered
when commingled (i.e., blended, combined, or mixed) with HPC pea
protein from sources not subject to this investigation. Only the
subject component of the commingled product is covered by the scope.
A blend, combination, or mixture is excluded from the scope if
the total HPC pea protein content of the blend, combination, or
mixture (regardless of the source or sources) comprises less than
five percent of the blend, combination, or mixture on a dry weight
basis.
All products that meet the written physical description are
within the scope of the investigation unless specifically excluded.
The following products, by way of example, are outside and/or
specifically excluded from the scope of the investigation:
<bullet> burgers, snack bars, bakery products, sugar and gum
confectionary products, milk, cheese, baby food, sauces and
seasonings, and pet food, even when such products are made with HPC
pea protein.
<bullet> HPC pea protein that has gone through an extrusion
process to alter the HPC pea protein at the structural and
functional level, resulting in a product with a fibrous structure
which resembles muscle meat upon hydration. These products are
commonly described as textured pea protein or texturized pea
protein.
<bullet> HPC pea protein that has been further processed to
create a small crunchy nugget commonly described as a pea protein
crisp.
<bullet> protein derived from chickpeas.
The merchandise covered by the scope is currently classified
under Harmonized Tariff Schedule of the United States (HTSUS)
categories 3504.00.1000, 3504.00.5000, and 2106.10.0000. Such
merchandise may also enter the U.S. market under HTSUS category
2308.00.9890. Although HTSUS categories and the CAS registry number
are provided for convenience and customs purposes, the written
description of the scope of the investigation is dispositive.
Appendix II
List of Topics Discussed in the Preliminary Decision Memorandum
I. Summary
II. Background
III. Scope Comments
IV. Scope of the Investigation
V. Critical Circumstances
VI. Analysis of China's Financial System
VII. Diversification of China's Economy
VIII. Use of Facts Otherwise Available and Adverse Inferences
IX. Subsidies Valuation
X. Benchmarks and Interest Rates
XI. Analysis of Programs
XII. Calculation of the All-Others Rate
XIII. Recommendation
[FR Doc. 2023-27699 Filed 12-15-23; 8:45 am]
BILLING CODE 3510-DS-P
</pre></body>
</html>Indexed from Federal Register on December 18, 2023.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.