2024-02965. 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 ...

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 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: [phone] 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]

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 https://access.trade.gov. In addition, a complete version of the Preliminary Decision Memorandum can be accessed directly at https://access.trade.gov/​public/​FRNoticesListLayout.aspx.

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.

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.

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.

Preliminary Determination

Commerce preliminarily determines that the following estimated weighted-average dumping margins exist: ^[12]

Exporter	Producer	Estimated weighted- average dumping margin (percent)	Cash deposit rate (adjusted for subsidy offset) (percent)
Fenchem Biotek Ltd	Yantai Shuangta Food Co., Ltd	122.19	111.65
Jianyuan International Co., Ltd	Shandong Jianyuan Bioengineering Co., Ltd	122.19	111.65
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., Ltd	122.19	111.65
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 Co., Ltd	Linyi Yuwang Vegetable Protein Co., Ltd	122.19	111.65
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., Ltd	122.19	111.65
Yosin Import and Export (Yantai) Co., Ltd	Yosin Biotechnology (Yantai) Co., Ltd	122.19	111.65
Hainan Zhongxin Chemical Co., Ltd	Shandong Hua-Thai Food Products Co., Ltd	122.19	111.65
Hainan Zhongxin Chemical Co., Ltd	Shandong Jundu Talin Foods Co., Ltd	122.19	111.65
Hainan Zhongxin Chemical Co., Ltd	Yosin Biotechnology (Yantai) Co., Ltd	122.19	111.65
Hainan Zhongxin Chemical Co., Ltd	Yosin Import and Export (Yantai) Co., Ltd	122.19	111.65
Hainan Zhongxin Chemical Co., Ltd	Yantai Shuangta Food Co., Ltd	122.19	111.65
China-wide Entity		280.31	269.77

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 .

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 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]

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]

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.

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.

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:

• 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;
• 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;
• HPC pea protein that has been further processed to create a small crunchy nugget commonly described as a pea protein crisp;
• 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

Footnotes

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).

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).

4.   See Antidumping Duties; Countervailing Duties, Final Rule,62 FR 27296, 27323 (May 19, 1997).

5.   See Initiation Notic e.

6.   See Memorandum, “Preliminary Scope Decision Memorandum,” dated concurrently with this notice (Preliminary Scope Decision Memorandum).

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 https://enforcement.trade.gov/​policy/​bull05-1.pdf.

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.

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.

13.   See Preliminary Decision Memorandum.

14.   See19 CFR 351.309(c)(1)(i); see also19 CFR 351.303 (for general filing requirements).

15.   See19 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.   See19 CFR 351.309(c)(2) and (d)(2).

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.

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.