Notice2024-02965
Certain Pea Protein From the People's Republic of China: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Preliminary Affirmative Determination of Critical Circumstances, Postponement of Final Determination, and Extension of Provisional Measures
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
February 13, 2024
Issuing agencies
Commerce DepartmentInternational Trade Administration
Abstract
The U.S. Department of Commerce (Commerce) preliminarily determines that certain pea protein (pea protein) from the People's Republic of China (China) is being, or is likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is January 1, 2023, through June 30, 2023. Interested parties are invited to comment on this preliminary determination.
Full Text
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<title>Federal Register, Volume 89 Issue 30 (Tuesday, February 13, 2024)</title>
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[Federal Register Volume 89, Number 30 (Tuesday, February 13, 2024)]
[Notices]
[Pages 10038-10042]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-02965]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-154]
Certain Pea Protein From the People's Republic of China:
Preliminary Affirmative Determination of Sales at Less Than Fair Value,
Preliminary Affirmative Determination of Critical Circumstances,
Postponement of Final Determination, and Extension of Provisional
Measures
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: The U.S. Department of Commerce (Commerce) preliminarily
determines that certain pea protein (pea
[[Page 10039]]
protein) from the People's Republic of China (China) is being, or is
likely to be, sold in the United States at less than fair value (LTFV).
The period of investigation (POI) is January 1, 2023, through June 30,
2023. Interested parties are invited to comment on this preliminary
determination.
DATES: Applicable February 13, 2024.
FOR FURTHER INFORMATION CONTACT: Katherine Smith or Sofia Pedrelli, AD/
CVD Operations, Office II, Enforcement and Compliance, International
Trade Administration, U.S. Department of Commerce, 1401 Constitution
Avenue NW, Washington, DC 20230; telephone: (202) 482-0557 or (202)
482-4310, respectively.
SUPPLEMENTARY INFORMATION:
Background
This preliminary determination is made in accordance with section
733(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 November 27, 2023, Commerce postponed the preliminary
determination of this investigation until February 7, 2023.\2\
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\1\ See Certain Pea Protein from the People's Republic of China:
Initiation of Less-Than-Fair-Value Investigation, 88 FR 52124
(August 7, 2023) (Initiation Notice).
\2\ See Certain Pea Protein from the People's Republic of China:
Postponement of Preliminary Determination in the Less-Than-Fair-
Value Investigation, 88 FR 82831 (November 27, 2023).
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For a complete description of the events that followed the
initiation of this investigation, see the Preliminary Decision
Memorandum.\3\ A list of topics included in the Preliminary Decision
Memorandum is included as appendix II to 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>.
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\3\ See Memorandum, ``Decision Memorandum for the Preliminary
Affirmative Determination in the Less-Than-Fair-Value Investigation
of Certain Pea Protein from the People's Republic of China,'' dated
concurrently with, and hereby adopted by, this notice (Preliminary
Decision Memorandum).
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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 (scope).\5\ Certain interested
parties commented on the scope of the investigation as it appeared in
the Initiation Notice. For a summary of the product coverage comments
and rebuttal responses submitted to the record for this investigation,
and accompanying discussion and analysis of all comments timely
received, see the Preliminary Scope Decision Memorandum.\6\ Commerce is
not preliminarily modifying the scope language as it appeared in the
Initiation Notice. See the scope in Appendix I to this notice.
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\4\ See Antidumping Duties; Countervailing Duties, Final Rule,
62 FR 27296, 27323 (May 19, 1997).
\5\ See Initiation Notice.
\6\ See Memorandum, ``Preliminary Scope Decision Memorandum,''
dated concurrently with this notice (Preliminary Scope Decision
Memorandum).
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Methodology
Commerce is conducting this investigation in accordance with
section 731 of the Act. Pursuant to sections 776(a) and (b) of the Act,
Commerce preliminarily has relied upon facts otherwise available, with
adverse inferences, for the China-wide entity. For a full description
of the methodology underlying Commerce's preliminary determination, see
the Preliminary Decision Memorandum.
Preliminary Affirmative Determination of Critical Circumstances
In accordance with section 733(e) of the Act and 19 CFR 351.206(c),
Commerce preliminarily determines that critical circumstances exist
with respect to imports of pea protein from China for the separate-rate
companies and the China-wide entity. For a full description of the
methodology and results of Commerce's critical circumstances analysis,
see the Preliminary Decision Memorandum.
Combination Rates
In the Initiation Notice,\7\ Commerce stated that it would
calculate producer/exporter combination rates for the respondents that
are eligible for a separate rate in this investigation. Policy Bulletin
05.1 describes this practice.\8\ In this investigation, we calculated
producer/exporter combination rates for respondents eligible for
separate rates.
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\7\ See Initiation Notice, 88 FR at 52127.
\8\ See Enforcement and Compliance's Policy Bulletin No. 05.1,
regarding, ``Separate-Rates Practice and Application of Combination
Rates in Antidumping Investigations involving Non-Market Economy
Countries,'' (April 5, 2005) (Policy Bulletin 05.1), available on
Commerce's website at <a href="https://enforcement.trade.gov/policy/bull05-1.pdf">https://enforcement.trade.gov/policy/bull05-1.pdf</a>.
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Separate Rates
We have preliminarily granted a separate rate to certain separate
rate respondents that we did not select for individual examination.\9\
In calculating the rate for non-individually examined separate rate
respondents in a non-market economy LTFV investigation, Commerce
normally looks to section 735(c)(5)(A) of the Act, which pertains to
the calculation of the all-others rate in a market economy LTFV
investigation, for guidance. Pursuant to section 735(c)(5)(A) of the
Act, normally this rate shall be an amount equal to the weighted
average of the estimated weighted-average dumping margins established
for those companies individually examined, excluding zero and de
minimis dumping margins, and any dumping margins based entirely under
section 776 of the Act. The estimated weighted-average dumping margins
in this preliminary determination are based entirely under section 776
of the Act. In investigations where no estimated weighted-average
dumping margins other than zero, de minimis, or those determined
entirely under section 776 of the Act have been established for
individually examined entities, in accordance with section 735(c)(5)(B)
of the Act, Commerce typically calculates a simple average of the
margins alleged in the petition and applies the results to all other
entities not individually examined.\10\ The simple average of the
petition rates is 122.19 percent.\11\ See the table below in the
``Preliminary Determination'' section of this notice.
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\9\ See the Preliminary Decision Memorandum for additional
details.
\10\ See, e.g., Certain Preserved Mushrooms from Spain: Final
Affirmative Determination of Sales Less Than Fair Value, 88 FR 18120
(March 27, 2023).
\11\ See Puris Proteins, LLC's Letter, ``Response of Petitioner
to Volume II Supplemental Questionnaire,'' dated July 21, 2023, at
Exhibit II-S14; see also Preliminary Decision Memorandum, for
additional details.
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Preliminary Determination
Commerce preliminarily determines that the following estimated
weighted-average dumping margins exist: \12\
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\12\ We preliminarily find that the following companies should
be treated as a single entity: Yantai Zhongzhen Trading Co., Ltd;
Yantai Oriental Protein Tech., Ltd; and Jiujiang Tiantai Food Co.,
Ltd. (collectively, the Zhongzhen Companies). Furthermore, we
preliminarily find that neither the Zhongzhen Companies nor Zhaoyuan
Junbang Trading Co., Ltd. (Junbang), the respondents selected for
individual examination in this investigation, are eligible for a
separate rate; thus, the China-wide entity preliminarily includes
the Zhongzhen Companies and Junbang. See the Preliminary Decision
Memorandum for additional details.
[[Page 10040]]
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Estimated Cash deposit
weighted- rate (adjusted
Exporter Producer average for subsidy
dumping margin offset)
(percent) (percent)
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Fenchem Biotek Ltd......................... Yantai Shuangta Food Co., Ltd...... 122.19 111.65
Jianyuan International Co., Ltd............ Shandong Jianyuan Bioengineering 122.19 111.65
Co., Ltd.
Jianyuan International Co., Ltd............ Hengyuan Biotechnology Co., Ltd.... 122.19 111.65
KTL Pharmaceutical Co., Limited............ Jiujiang Tiantai Food Co., Ltd..... 122.19 111.65
Linyi Yuwang Vegetable Protein Co., Ltd.... Linyi Yuwang Vegetable Protein Co., 122.19 111.65
Ltd.
Nutracean Co., Ltd......................... Yantai Shuangta Food Co., Ltd...... 122.19 111.65
Nutracean Co., Ltd......................... Zhaoyuan Junbang Trading Co., Ltd.. 122.19 111.65
Shandong Yuwang Ecological Food Industry Linyi Yuwang Vegetable Protein Co., 122.19 111.65
Co., Ltd. Ltd.
Yantai T.Full Biotech Co., Ltd............. Yantai T.Full Biotech Co., Ltd..... 122.19 111.65
Yosin Biotechnology (Yantai) Co., Ltd...... Yosin Biotechnology (Yantai) Co., 122.19 111.65
Ltd.
Yosin Import and Export (Yantai) Co., Ltd.. Yosin Biotechnology (Yantai) Co., 122.19 111.65
Ltd.
Hainan Zhongxin Chemical Co., Ltd.......... Shandong Hua-Thai Food Products 122.19 111.65
Co., Ltd.
Hainan Zhongxin Chemical Co., Ltd.......... Shandong Jundu Talin Foods Co., Ltd 122.19 111.65
Hainan Zhongxin Chemical Co., Ltd.......... Yosin Biotechnology (Yantai) Co., 122.19 111.65
Ltd.
Hainan Zhongxin Chemical Co., Ltd.......... Yosin Import and Export (Yantai) 122.19 111.65
Co., Ltd.
Hainan Zhongxin Chemical Co., Ltd.......... Yantai Shuangta Food Co., Ltd...... 122.19 111.65
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China-wide Entity............................................................... 280.31 269.77
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Suspension of Liquidation
In accordance with section 733(d)(2) of the Act, Commerce will
direct U.S. Customs and Border Protection (CBP) to suspend liquidation
of subject merchandise as described in the scope of the investigation
section entered, or withdrawn from warehouse, for consumption on or
after the date of publication of this notice in the Federal Register,
as discussed below. Further, pursuant to section 733(d)(1)(B) of the
Act and 19 CFR 351.205(d), Commerce will instruct CBP to require a cash
deposit equal to the weighted average amount by which normal value
exceeds U.S. price, as indicated in the chart above as follows: (1) for
the producer/exporter combinations listed in the table above, the cash
deposit rate is equal to the estimated weighted-average dumping margin
listed for that combination in the table; (2) for all combinations of
Chinese producers/exporters of merchandise under consideration that
have not established eligibility for their own separate rates, the cash
deposit rate will be equal to the estimated weighted-average dumping
margin established for the China-wide entity; and (3) for all third-
country exporters of merchandise under consideration not listed in the
table above, the cash deposit rate is the cash deposit rate applicable
to the Chinese producer/exporter combination (or the China-wide entity)
that supplied that third-country exporter.
Section 733(e)(2) of the Act provides that, given an affirmative
determination of critical circumstances, any suspension of liquidation
shall apply to unliquidated entries of merchandise entered, or
withdrawn from warehouse, for consumption on or after the later of: (a)
the date that is 90 days before the date on which the suspension of
liquidation was first ordered; or (b) the date on which notice of
initiation of the investigation was published. Commerce preliminarily
finds that critical circumstances exist for imports of subject
merchandise from the non-selected companies eligible for a separate
rate and the China-wide entity.\13\ In accordance with section
733(e)(2)(A) of the Act, the suspension of liquidation shall apply to
all unliquidated entries of merchandise from the non-selected companies
eligible for a separate rate and the China-wide entity that were
entered, or withdrawn from warehouse, for consumption on or after the
date that is 90 days before the publication of this notice in the
Federal Register.
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\13\ See Preliminary Decision Memorandum.
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To determine the cash deposit rate, Commerce normally adjusts the
estimated weighted-average dumping margin by the amount of domestic
subsidy pass-through and export subsidies determined in a companion
countervailing duty (CVD) proceeding when CVD provisional measures are
in effect. Accordingly, where Commerce has made a preliminary
affirmative determination for domestic subsidy pass-through or export
subsidies, Commerce has offset the calculated estimated weighted-
average dumping margin by the appropriate rate. Any such adjusted rates
may be found in the ``Preliminary Determination'' section's chart of
estimated weighted-average dumping margins above.
Should provisional measures in the companion CVD investigation
expire prior to the expiration of provisional measures in this LTFV
investigation, Commerce will direct CBP to begin collecting cash
deposits at a rate equal to the estimated weighted-average dumping
margins calculated in this preliminary determination unadjusted for the
passed-through domestic subsidies or for export subsidies at the time
the CVD provisional measures expire. These suspension of liquidation
instructions will remain in effect until further notice.
Disclosure
Normally, Commerce discloses to interested parties the calculations
performed in connection with a 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
accordance with 19 CFR 351.224(b). However, because Commerce
preliminarily applied total adverse facts available (AFA) to the China-
wide entity, including the mandatory respondents, in this investigation
in accordance with section 776 of the Act, and the applied AFA rate is
based solely on the petition, there are no calculations to disclose.
Verification
Because the China-wide entity in this investigation did not provide
[[Page 10041]]
information requested by Commerce, and Commerce preliminarily
determines that the China-wide entity was uncooperative, verification
will not be conducted.
Public Comment
Case briefs or other written comments may be submitted to the
Assistant Secretary for Enforcement and Compliance no later than 30
days after the date of publication of the preliminary determination
unless the Secretary alters the time limit.\14\ Rebuttal briefs,
limited to issues raised in the case briefs, may be filed no later than
five days after the date for filing case briefs.\15\ 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.\16\
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\14\ See 19 CFR 351.309(c)(1)(i); see also 19 CFR 351.303 (for
general filing requirements).
\15\ 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 and Final Service Rule).
\16\ See 19 CFR 351.309(c)(2) and (d)(2).
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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.\17\
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).\18\
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\17\ We use the term ``issue'' here to describe an argument that
Commerce would normally address in a comment of the Issues and
Decision Memorandum.
\18\ See APO and Final Service Rule.
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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
the party's name, address, and telephone number, the number of
participants, whether any participant is a foreign national, and a list
of the issues to be discussed. If a request for a hearing is made,
Commerce intends to hold the hearing at a time and date to be
determined.
Postponement of Final Determination and Extension of Provisional
Measures
Section 735(a)(2) of the Act provides that a final determination
may be postponed until no later than 135 days after the date of the
publication of the preliminary determination if, in the event of an
affirmative preliminary determination, a request for such postponement
is made by exporters who account for a significant proportion of
exports of the subject merchandise, or in the event of a negative
preliminary determination, a request for such postponement is made by
the petitioners. Pursuant to 19 CFR 351.210(e)(2), Commerce requires
that requests by respondents for postponement of a final antidumping
duty determination be accompanied by a request for extension of
provisional measures from a four-month period to a period not more than
six months in duration.
In January 2024, pursuant to 19 CFR 351.210(e), the Zhongzhen
Companies and Junbang requested that Commerce postpone the final
determination and that provisional measures be extended to a period not
to exceed six months.\19\ In accordance with section 735(a)(2)(A) of
the Act and 19 CFR 351.210(b)(2)(ii), because: (1) the preliminary
determination is affirmative; (2) the requesting exporters account for
a significant proportion of exports of the subject merchandise; and (3)
no compelling reasons for denial exist, Commerce is postponing the
final determination and extending the provisional measures from a four-
month period to a period not greater than six months. Accordingly,
Commerce's final determination will be published no later than 135 days
after the date of publication of this preliminary determination.
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\19\ See the Zhongzhen Companies' Letter, ``Zhongzhen Request
for Postponement of Final Determination,'' dated January 24, 2024;
see also Junbang's Letter, ``Request to Postpone Final Results,''
dated January 26, 2024.
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U.S. International Trade Commission Notification
In accordance with section 733(f) of the Act, Commerce will notify
the U.S. International Trade Commission (ITC) of its preliminary
determination of sales at LTFV. If the 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 the subject merchandise are materially
injuring, or threaten material injury to, the U.S. industry.
Notification to Interested Parties
This determination is issued and published in accordance with
sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).
Dated: February 7, 2024.
Ryan Majerus,
Deputy Assistant Secretary for Policy and Negotiations, Performing the
Non-Exclusive Functions and Duties of the 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.
[[Page 10042]]
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. Period of Investigation
IV. Affiliation and Single Entity Treatment
V. Discussion of the Methodology
VI. Critical Circumstances
VII. Adjustment Under Section 777(A)(F) of the Tariff Act of 1930,
as Amended
VIII. Adjustment to Cash Deposit Rate for Export Subsidies
IX. Recommendation
[FR Doc. 2024-02965 Filed 2-12-24; 8:45 am]
BILLING CODE 3510-DS-P
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