[Federal Register Volume 89, Number 30 (Tuesday, February 13, 2024)]
[Notices]
[Pages 10038-10042]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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 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 
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 https://enforcement.trade.gov/policy/bull05-1.pdf.
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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
                                                                                 -------------------------------
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:
     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

[FR Doc. 2024-02965 Filed 2-12-24; 8:45 am]
BILLING CODE 3510-DS-P