[Federal Register Volume 88, Number 241 (Monday, December 18, 2023)]
[Notices]
[Pages 87403-87406]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-27699]


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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\
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    \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).

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[[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 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.
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    \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).
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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 (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.
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    \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).
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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.
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    \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.
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    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.
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    \8\ See sections 776(a) and (b) of the Act.
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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.
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    \9\ The non-responsive companies are: Focusherb LLC, Golden 
Protein Limited, Shandong Jianyuan Bioengineering Co., and Yantai 
Wanpy International Trade.
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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\
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    \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.
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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\
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    \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).
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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.
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    \13\ The four companies are Focusherb LLC, Golden Protein 
Limited, Shandong Jianyuan Bioengineering Co., and Yantai Wanpy 
International Trade.
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    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:
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    \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)
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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
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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\
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    \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.
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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 
(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\
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    \20\ See 19 CFR 351.310(d).
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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:
     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. 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