Notice2024-14687
Certain Pea Protein From the People's Republic of China: Final Affirmative Countervailing Duty Determination and Final Affirmative Critical Circumstances 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
July 5, 2024
Issuing agencies
Commerce DepartmentInternational Trade Administration
Abstract
The U.S. Department of Commerce (Commerce) 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). The period of investigation is January 1, 2022, through December 31, 2022.
Full Text
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<title>Federal Register, Volume 89 Issue 129 (Friday, July 5, 2024)</title>
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[Federal Register Volume 89, Number 129 (Friday, July 5, 2024)]
[Notices]
[Pages 55557-55559]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-14687]
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DEPARTMENT OF COMMERCE
International Trade Administration
[C-570-155]
Certain Pea Protein From the People's Republic of China: Final
Affirmative Countervailing Duty Determination and Final Affirmative
Critical Circumstances Determination
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: The U.S. Department of Commerce (Commerce) 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). The period of investigation is January 1, 2022, through
December 31, 2022.
DATES: Applicable July 5, 2024.
FOR FURTHER INFORMATION CONTACT: Kristen Johnson or Laura Griffith, 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 or (202)
482-6430, respectively.
SUPPLEMENTARY INFORMATION:
Background
On December 18, 2023, Commerce published its Preliminary
Determination in the Federal Register and invited interested parties to
comment.\1\ Subsequently, on April 23, 2024, Commerce issued its Post-
Preliminary Determination.\2\ For a complete description of the events
that followed the Preliminary Determination, see the Issues and
Decision Memorandum.\3\ The Issues and Decision Memorandum is a public
document and is made available to the public 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 Issues
and 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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\1\ See 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, 88 FR 87403 (December 18, 2023) (Preliminary
Determination), and accompanying Preliminary Decision Memorandum
(PDM).
\2\ See Memorandum, ``Post-Preliminary Decision Memorandum for
the Countervailing Duty Investigation on Certain Pea Protein from
the People's Republic of China,'' dated April 23, 2024.
\3\ See Memorandum, ``Decision Memorandum for the Final
Affirmative Determination in the Countervailing Duty Investigation
of Certain Pea Protein from the People's Republic of China,'' dated
concurrently with, and hereby adopted by, this notice (Issues and
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
On February 7, 2024, Commerce issued a Preliminary Scope Decision
Memorandum in which it determined not to modify the language of the
scope as it regards pea protein from China.\4\ We received no scope
case briefs from interested parties. Therefore, the scope of the
investigation, as contained in the Preliminary Determination, remains
unchanged as noted in Appendix I.
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\4\ See Memorandum, ``Less-Than-Fair-Value and Countervailing
Duty Investigations of Certain Pea Protein from the People's
Republic of China: Preliminary Scope Decision Memorandum,'' dated
February 7, 2024.
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Analysis of Subsidy Programs and Comments Received
The subsidy programs under investigation, and the issues raised in
the case and rebuttal briefs that were submitted by parties in this
investigation, are discussed in the Issues and Decision Memorandum. For
a list of the issues raised by interested parties and addressed in the
Issues and Decision Memorandum, see Appendix II to this notice.
Methodology
Commerce conducted this investigation in accordance with section
701 of the Tariff Act of 1930, as amended (the Act). For each of the
subsidy programs found to be countervailable, Commerce determines that
there is a subsidy, i.e., a financial contribution by an ``authority''
that gives rise to a benefit to the recipient, and that the subsidy is
specific.\5\ For a full description of the methodology underlying our
final determination, see the Issues and Decision Memorandum.
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\5\ See sections 771(5)(B) and (D) of the Act regarding
financial contribution; see also section 771(5)(E) of the Act
regarding benefit; and section 771(5A) of the Act regarding
specificity.
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In making this final determination, Commerce relied, in part, on
facts otherwise available, including with an adverse inference,
pursuant to sections 776(a) and (b) of the Act. For a full discussion
of our application of adverse facts available, see the Preliminary
Determination PDM \6\ and section ``Use of Facts Otherwise Available
and Application of Adverse Inferences'' in the Issues and Decision
Memorandum.
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\6\ See Preliminary Determination PDM at 8-36.
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Verification
Commerce was unable to conduct on-site verifications of the
information relied on in making its final determination in this
investigation. However, in January 2024, we took additional steps in
lieu of on-site verifications to verify the information relied upon in
making this final determination, in accordance with section 782(i) of
the Act, by conducting virtual verifications of Yantai Oriental Protein
Tech Co., Ltd. (Yantai Oriental) and Zhaoyuan Junbang Trading Co., Ltd.
(Junbang).
Changes Since the Preliminary Determination
Based on our analysis of the comments received from interested
parties and our verification findings, we made certain changes to the
subsidy rate calculations for Junbang and Yantai Oriental. For a
discussion of these changes, see the Issues and Decision Memorandum.
Final Affirmative Determination of Critical Circumstances
Pursuant to sections 705(a)(2), 776(a), and 776(b) of the Act, and
19 CFR 351.206, Commerce continues to find that critical circumstances
exist with respect to imports of pea protein from China for Junbang,
Yantai Oriental, all other producers and/or exporters, and the non-
responsive companies. For
[[Page 55558]]
further information on Commerce's critical circumstances analysis, see
the section ``Final Critical Circumstances Determination'' in the
accompanying Issues and Decision Memorandum.
All-Others Rate
Pursuant to section 705(c)(5)(A)(i) of the Act, Commerce will
determine an all-others rate equal to the weighted-average
countervailable subsidy rates established for exporters and/or
producers individually examined, excluding any rates that are zero, de
minimis, or rates based entirely under section 776 of the Act. We
continue to calculate individual estimated countervailable subsidy
rates for Junbang and Yantai Oriental that are not zero, de minimis, or
based entirely on facts otherwise available. Therefore, we determined
the all-others rate using the estimated countervailable subsidy rates
calculated for Junbang and Yantai Oriental. For further information,
see the section ``Calculation of the All-Others Rate'' in the
accompanying Issues and Decision Memorandum.
Final Determination
Commerce determines that the following estimated countervailable
subsidy rates exist:
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Subsidy rate
Company (percent ad
valorem)
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Yantai Oriental Protein Tech Co., Ltd \7\............... 16.52
Zhaoyuan Junbang Trading Co., Ltd \8\................... 15.15
Focusherb LLC........................................... 355.89
Golden Protein Limited.................................. 355.89
Shandong Jianyuan Bioengineering Co..................... 355.89
Yantai Wanpy International Trade........................ 355.89
All Others.............................................. 15.84
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Disclosure
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\7\ Commerce 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.
\8\ Commerce finds Yantai Shuangta Food Co. Ltd. to be cross-
owned with Junbang.
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Commerce intends to disclose to interested parties the calculations
and analysis performed in this final determination within five days of
any public announcement or, if there is no public announcement, within
five days of the date of the publication of this notice in the Federal
Register, in accordance with 19 CFR 351.224(b).
Continuation of Suspension of Liquidation
As a result of our Preliminary Determination, pursuant to sections
703(d)(1)(B) and (d)(2) of the Act, and because we preliminarily
determined that critical circumstances existed with respect to Junbang,
Yantai Oriental, all other producers and/or exporters, and the non-
responsive companies, we instructed U.S. Customs and Border Protection
(CBP) to suspend liquidation of entries of subject merchandise from
China that were entered, or withdrawn from warehouse, for consumption,
on or after September 19, 2023, which is 90 days prior to the date of
the publication of the Preliminary Determination in the Federal
Register. In accordance with section 703(d) of the Act, we instructed
CBP to discontinue the suspension of liquidation of all entries of
subject merchandise entered or withdrawn from warehouse on, or after,
April 16, 2024, but to continue the suspension of liquidation of all
entries of subject merchandise between September 19, 2023 and April 15,
2024.
If the U.S. International Trade Commission (ITC) issues a final
affirmative injury determination, we will issue a countervailing duty
order, reinstate the suspension of liquidation under section 706(a) of
the Act, and require a cash deposit of estimated countervailing duties
for entries of subject merchandise in the amounts indicated above. If
the ITC determines that material injury, or threat of material injury,
does not exist, this proceeding will be terminated, and all estimated
duties deposited or securities posted as a result of the suspension of
liquidation will be refunded or canceled.
ITC Notification
In accordance with section 705(d) of the Act, we will notify the
ITC of our final affirmative determination that countervailable
subsidies are being provided to producers and exporters of pea protein
from China. Because the final determination is affirmative, in
accordance with section 705(b) of the Act, the ITC will make its final
determination as to whether the domestic industry in the United States
is materially injured, or threatened with material injury, by reason of
imports of pea protein from China no later than 45 days after our final
determination. In addition, we are making available to the ITC all non-
privileged and nonproprietary information related to this
investigation. We will allow the ITC access to all privileged and
business proprietary information in our files, provided the ITC
confirms that it will not disclose such information, either publicly or
under an administrative protective order (APO), without the written
consent of the Assistant Secretary for Enforcement and Compliance. If
the ITC determines that material injury or threat of material injury
does not exist, this proceeding will be terminated and all cash
deposits will be refunded. If the ITC determines that such injury does
exist, Commerce will issue a countervailing duty order directing CBP to
assess, upon further instruction by Commerce, countervailing duties on
all imports of the subject merchandise that are entered, or withdrawn
from warehouse, for consumption on or after the effective date of the
suspension of liquidation, as discussed above in the ``Continuation of
Suspension of Liquidation'' section.
Administrative Protective Order
In the event that the ITC issues a final negative injury
determination, this notice will serve as the only reminder to parties
subject to an APO of their responsibility concerning the destruction of
proprietary information disclosed under APO, in accordance with 19 CFR
351.305(a)(3). Timely written notification of the return/destruction of
APO materials or conversion to judicial protective order is hereby
requested. Failure to comply with the regulations and terms of an APO
is a violation which is subject to sanction.
Notification to Interested Parties
This determination is issued and published pursuant to sections
705(d) and 777(i) of the Act, and 19 CFR 351.210(c).
Dated: June 27, 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
[[Page 55559]]
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 Issues and Decision Memorandum
I. Summary
II. Background
III. Scope of the Investigation
IV. Final Critical Circumstances Determination
V. Subsidies Valuation Information
VI. Use of Facts Otherwise Available and Application of Adverse
Inferences
VII. Analysis of Programs
VIII. Discussion of the Issues
Comment 1: Whether the Application of Adverse Facts Available
(AFA) for the Provision of Whole Peas for Less Than Adequate
Remuneration (LTAR) Is Appropriate
Comment 2: Whether the Application of AFA for the Provision of
Electricity for LTAR Is Appropriate
Comment 3: Whether Policy Loans to the Pea Protein Industry Are
Countervailable
Comment 4: Whether Commerce Should Apply AFA Regarding the
Export Buyer's Credits Program (EBCP)
Comment 5: Whether the Income Tax Deductions for Research and
Development (R&D) Expenses Under the Enterprise Income Tax (EIT) Law
Program Are Specific
Comment 6: Appropriate Benefit Calculation for the Income Tax
Deduction for R&D Expenses Program
Comment 7: Whether to Use a Different Sales Denominator in
Junbang's Income Tax Program Benefit Calculations
Comment 8: Appropriate Cash Deposit Rate for Cooperative
Exporters
IX. Calculation of the All-Others Rate
X. Recommendation
[FR Doc. 2024-14687 Filed 7-3-24; 8:45 am]
BILLING CODE 3510-DS-P
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</html>Indexed from Federal Register on July 5, 2024.
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.