[Federal Register Volume 89, Number 129 (Friday, July 5, 2024)]
[Notices]
[Pages 55559-55562]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14686]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-154]


Certain Pea Protein From the People's Republic of China: Final 
Affirmative Determination of Sales at Less Than Fair Value 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 
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 is January 1, 2023, 
through June 30, 2023.

DATES: Applicable July 5, 2024.

FOR FURTHER INFORMATION CONTACT: Sofia Pedrelli or Katherine Smith, 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) 482-4310 or (202) 
482-0557, respectively.

SUPPLEMENTARY INFORMATION: 

Background

    On February 13, 2024, Commerce published its Preliminary 
Determination in the Federal Register, in which we postponed the final 
determination until June 27, 2024, and invited parties to comment on 
the Preliminary Determination.\1\
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    \1\ See 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, 89 FR 10038 (February 13, 2024) (Preliminary 
Determination), and accompanying Preliminary Decision memorandum 
(PDM).
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    For a summary of the events that occurred since the Preliminary 
Determination, as well as a full discussion of the issues raised by 
parties for this final determination, see the Issues and Decision 
Memorandum.\2\ 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 https://access.trade.gov. In addition, a complete version of the Issues and 
Decision Memorandum can be accessed directly at https://access.trade.gov/public/FRNoticesListLayout.aspx.
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    \2\ See Memorandum, ``Decision Memorandum for the Final 
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 (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.\3\ 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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    \3\ 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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Final Affirmative Determination of Critical Circumstances

    We continue to find that critical circumstances exist for imports 
of pea protein from China for the separate rate companies and the 
China-wide entity,

[[Page 55560]]

pursuant to section 735(a)(3)(B) of Tariff Act of 1930, as amended (the 
Act), and 19 CFR 351.206. For further discussion of this issue, see the 
Issues and Decision Memorandum.

Analysis of Comments Received

    All issues raised in the case and rebuttal briefs submitted by 
interested parties are addressed in the Issues and Decision Memorandum. 
A list of the issues addressed in the Issues and Decision Memorandum is 
attached as appendix II to this notice.

Application of Total Adverse Facts Available With Respect to the China-
Wide Entity

    Consistent with the Preliminary Determination, Commerce continues 
to find, pursuant to sections 776(a)(1) and (a)(2)(A)-(C) of the Act, 
that the use of facts available is warranted in determining the rate of 
the China-wide entity, which includes Junbang Trading Co., Ltd. 
(Junbang) and Yantai Zhongzhen Trading Co.; Yantai Oriental Protein 
Tech Co.; and Jiugiang Tinti Food., Ltd. (collectively, the Zhongzhen 
Companies).\4\ Furthermore, we continue to find that an adverse 
inference is warranted in selecting from the facts otherwise available, 
pursuant to section 776(b) of the Act and 19 CFR 351.308(a), because 
the China-wide entity failed to cooperate by not acting to the best of 
its ability to comply with Commerce's requests for information. As 
adverse facts available (AFA), we continue to apply the highest rate 
from the petition (i.e., 280.31 percent) because it is a rate derived 
from information submitted on the record and achieves the right balance 
between the goal of inducing future cooperation by the uncooperative 
respondent and the rate not being punitive.\5\
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    \4\ See Preliminary Determination PDM at 11-15. We preliminarily 
found that the Zhongzhen Companies should be treated as a single 
entity. Id. at 4-5; see also Memorandum, ``Preliminary Determination 
of Affiliation and Single Entity Determination for Yantai Zhongzhen 
Trading Co., Ltd.,'' dated February 7, 2024. No interested party 
commented on this finding, and we continue to find that these 
companies should be treated as a single entity for our final 
determination.
    \5\ See Issues and Decision Memorandum at Comment 5.
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Separate Rates

    We preliminarily found certain companies to be eligible for a 
separate rate in the Preliminary Determination.\6\ No interested party 
commented on our preliminary separate rate determination with respect 
to the companies that we found were eligible for a separate rate, and 
we have no basis to otherwise reconsider this determination. 
Accordingly, we continue to find that these companies are eligible for 
a separate rate in the final determination. As noted above, we continue 
to treat Junbang and the Zhongzhen Companies as a part of the China-
wide entity.
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    \6\ See Preliminary Determination PDM at 6-7.
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    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 any margins that 
are zero, de minimis, or based entirely under section 776 of the Act. 
The statute further provides that, where all margins are zero, de 
minimis, or based entirely on facts available under section 776 of the 
Act, Commerce may use ``any reasonable method'' for assigning the rate 
to non-selected respondents.\7\
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    \7\ See section 735(c)(5)(B) of the Act.
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    The estimated weighted-average dumping margins in this final 
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.\8\ The simple average of the petition rates in this LTFV 
investigation is 122.19 percent.\9\ See the table below in the ``Final 
Determination'' section of this notice.
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    \8\ See, e.g., Certain Preserved Mushrooms from Spain: Final 
Affirmative Determination of Sales Less Than Fair Value, 88 FR 18120 
(March 27, 2023).
    \9\ See Puris Proteins, LLC's Letter, ``Response of Petitioner 
to Volume II Supplemental Questionnaire,'' dated July 21, 2023, at 
Exhibit II-S14; see also Issues and Decision Memorandum at Comment 
4.
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Combination Rates

    Consistent with the Initiation Notice, Preliminary Determination, 
and Policy Bulletin 05.1, Commerce calculated combination rates for the 
respondents that are eligible for a separate rate in this 
investigation.\10\
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    \10\ See Certain Pea Protein from the People's Republic of 
China: Initiation of Less-Than-Fair-Value Investigation, 88 FR 52124 
(August 7, 2023); see also Preliminary Determination; and 
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,'' 
dated April 5, 2004 (Policy Bulletin 05.1), available on Commerce's 
website at https://enforcement.trade.gov/policy/bull05-1.pdf.
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Final Determination

    The final estimated weighted-average dumping margins are as 
follows: \11\
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    \11\ We continue to find that neither the Zhongzhen Companies 
nor Junbang, the respondents selected for individual examination in 
this investigation, are eligible for a separate rate; thus the 
China-wide entity includes the Zhongzhen Companies and Junbang. See 
Issues and Decision memorandum at Comments 1 and 2 for additional 
details.

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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.

[[Page 55561]]

 
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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Disclosure

    Normally, Commerce discloses to interested parties the calculations 
performed in connection with a final 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 continues to find the 
mandatory respondents are part of the China-wide entity, applied total 
AFA to the China-wide entity 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.

Continuation of Suspension of Liquidation

    In accordance with section 735(c)(4) of the Act, because Commerce 
continues to find that critical circumstances exist for the non-
selected separate rate companies and the China-wide entity, we will 
instruct U.S. Customs and Border Protection (CBP) to continue to 
suspend liquidation of subject merchandise, as described in Appendix I 
of this notice, entered, or withdrawn from warehouse, for consumption, 
on or after November 15, 2023, which is 90 days prior to the date of 
publication of the affirmative Preliminary Determination 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 makes an affirmative 
determination for domestic subsidy pass-through or export subsidies, 
Commerce offsets the calculated estimated weighted-average dumping 
margin by the appropriate rates. However, suspension of liquidation of 
provisional measures in the companion CVD investigation has been 
discontinued; therefore, we are not instructing CBP to collect cash 
deposits based upon the adjusted estimated weighted-average dumping 
margin for those export subsidies at this time.\12\
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    \12\ 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); see also section 
703(d) of the Act, which states that the provisional measures may 
not be in effect for more than four months, which in the companion 
CVD case is 120 days after the publication of the preliminary 
determination, or April 14, 2023.
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    Pursuant to section 735(c)(1)(B)(ii) of the Act and 19 CFR 
351.210(d), we will instruct CBP to require a cash deposit for such 
entries of merchandise equal to the amount by which the normal value 
exceeds the U.S. price 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 subject merchandise 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 
subject merchandise not listed in the table above, the cash deposit 
rate is the cash deposit rate applicable to the Chinese producer/
exporter combination (or China-wide entity) that supplied that third-
country exporter. These suspension of liquidation instructions will 
remain in effect until further notice.

U.S. International Trade Commission (ITC) Notification

    In accordance with section 735(d) of the Act, we will notify the 
ITC of our final affirmative determination of sales at LTFV. Because 
the final determination in this proceeding is affirmative, in 
accordance with section 735(b)(2) 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 
this final determination. If the ITC determines that material injury or 
threat of material injury does not exist, the proceeding will be 
terminated and all cash deposits will be refunded or canceled, and 
suspension of liquidation will be lifted. If the ITC determines that 
such injury does exist, Commerce will issue an antidumping duty order 
directing CBP to assess, upon further instruction by Commerce, 
antidumping 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 (APO)

    This notice will serve as the final reminder to the 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 or 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 and this notice are issued and published in 
accordance with sections 735(d) and 777(i)(1) of the Act, and 19 CFR 
351.210(c).


[[Page 55562]]


    Dated: June 27, 2024.
Ryan Majerus,
Deputy Assistant Secretary for Policy and Negotiations, performing the 
non-exclusive functions and duties of the Assistance 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 Issues and Decision Memorandum

I. Summary
II. Background
III. Adjustment Under Section 777A(f) of the Act
IV. Adjustments to Cash Deposit Rates for Export Subsidies
V. Final Affirmative Determination of Critical Circumstances
VI. Discussion of the Issues
    Comment 1: The Zhongzhen Companies' Separate Rate Status
    Comment 2: Junbang's Separate Rate Status
    Comment 3: Calculation and Reporting Methodology
    Comment 4: Rate Assigned to Separate Rate Companies
    Comment 5: China-wide Entity Rate
    Comment 6: Critical Circumstances
    Comment 7: Verification
VII. Recommendation

[FR Doc. 2024-14686 Filed 7-3-24; 8:45 am]
BILLING CODE 3510-DS-P