[Federal Register Volume 89, Number 129 (Friday, July 5, 2024)]
[Notices]
[Pages 55557-55559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-14687]


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DEPARTMENT OF COMMERCE

International Trade Administration

[C-570-155]


Certain Pea Protein From the People's Republic of China: Final 
Affirmative Countervailing Duty Determination and Final Affirmative 
Critical Circumstances Determination

AGENCY: Enforcement and Compliance, International Trade Administration, 
Department of Commerce.

SUMMARY: The U.S. Department of Commerce (Commerce) determines that 
countervailable subsidies are being provided to producers and exporters 
of certain pea protein (pea protein) from the People's Republic of 
China (China). The period of investigation is January 1, 2022, through 
December 31, 2022.

DATES: Applicable July 5, 2024.

FOR FURTHER INFORMATION CONTACT: Kristen Johnson or Laura Griffith, AD/
CVD Operations, Office III, Enforcement and Compliance, International 
Trade Administration, U.S. Department of Commerce, 1401 Constitution 
Avenue NW, Washington, DC 20230; telephone: (202) 482-4793 or (202) 
482-6430, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On December 18, 2023, Commerce published its Preliminary 
Determination in the Federal Register and invited interested parties to 
comment.\1\ Subsequently, on April 23, 2024, Commerce issued its Post-
Preliminary Determination.\2\ For a complete description of the events 
that followed the Preliminary Determination, see the Issues and 
Decision Memorandum.\3\ The Issues and Decision Memorandum is a public 
document and is made available to the public via Enforcement and 
Compliance's Antidumping and Countervailing Duty Centralized Electronic 
Service System (ACCESS). ACCESS is available to registered users at 
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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    \1\ See Certain Pea Protein from the People's Republic of China: 
Preliminary Affirmative Countervailing Duty Determination, 
Preliminary Affirmative Critical Circumstances Determination, and 
Alignment of Final Determination with Final Antidumping Duty 
Determination, 88 FR 87403 (December 18, 2023) (Preliminary 
Determination), and accompanying Preliminary Decision Memorandum 
(PDM).
    \2\ See Memorandum, ``Post-Preliminary Decision Memorandum for 
the Countervailing Duty Investigation on Certain Pea Protein from 
the People's Republic of China,'' dated April 23, 2024.
    \3\ See Memorandum, ``Decision Memorandum for the Final 
Affirmative Determination in the Countervailing Duty Investigation 
of Certain Pea Protein from the People's Republic of China,'' dated 
concurrently with, and hereby adopted by, this notice (Issues and 
Decision Memorandum).
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Scope of the Investigation

    The product covered by this investigation is pea protein from 
China. For a complete description of the scope of this investigation, 
see Appendix I.

Scope Comments

    On February 7, 2024, Commerce issued a Preliminary Scope Decision 
Memorandum in which it determined not to modify the language of the 
scope as it regards pea protein from China.\4\ We received no scope 
case briefs from interested parties. Therefore, the scope of the 
investigation, as contained in the Preliminary Determination, remains 
unchanged as noted in Appendix I.
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    \4\ See Memorandum, ``Less-Than-Fair-Value and Countervailing 
Duty Investigations of Certain Pea Protein from the People's 
Republic of China: Preliminary Scope Decision Memorandum,'' dated 
February 7, 2024.
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Analysis of Subsidy Programs and Comments Received

    The subsidy programs under investigation, and the issues raised in 
the case and rebuttal briefs that were submitted by parties in this 
investigation, are discussed in the Issues and Decision Memorandum. For 
a list of the issues raised by interested parties and addressed in the 
Issues and Decision Memorandum, see Appendix II to this notice.

Methodology

    Commerce conducted this investigation in accordance with section 
701 of the Tariff Act of 1930, as amended (the Act). For each of the 
subsidy programs found to be countervailable, Commerce determines that 
there is a subsidy, i.e., a financial contribution by an ``authority'' 
that gives rise to a benefit to the recipient, and that the subsidy is 
specific.\5\ For a full description of the methodology underlying our 
final determination, see the Issues and Decision Memorandum.
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    \5\ See sections 771(5)(B) and (D) of the Act regarding 
financial contribution; see also section 771(5)(E) of the Act 
regarding benefit; and section 771(5A) of the Act regarding 
specificity.
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    In making this final determination, Commerce relied, in part, on 
facts otherwise available, including with an adverse inference, 
pursuant to sections 776(a) and (b) of the Act. For a full discussion 
of our application of adverse facts available, see the Preliminary 
Determination PDM \6\ and section ``Use of Facts Otherwise Available 
and Application of Adverse Inferences'' in the Issues and Decision 
Memorandum.
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    \6\ See Preliminary Determination PDM at 8-36.
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Verification

    Commerce was unable to conduct on-site verifications of the 
information relied on in making its final determination in this 
investigation. However, in January 2024, we took additional steps in 
lieu of on-site verifications to verify the information relied upon in 
making this final determination, in accordance with section 782(i) of 
the Act, by conducting virtual verifications of Yantai Oriental Protein 
Tech Co., Ltd. (Yantai Oriental) and Zhaoyuan Junbang Trading Co., Ltd. 
(Junbang).

Changes Since the Preliminary Determination

    Based on our analysis of the comments received from interested 
parties and our verification findings, we made certain changes to the 
subsidy rate calculations for Junbang and Yantai Oriental. For a 
discussion of these changes, see the Issues and Decision Memorandum.

Final Affirmative Determination of Critical Circumstances

    Pursuant to sections 705(a)(2), 776(a), and 776(b) of the Act, and 
19 CFR 351.206, Commerce continues to find that critical circumstances 
exist with respect to imports of pea protein from China for Junbang, 
Yantai Oriental, all other producers and/or exporters, and the non-
responsive companies. For

[[Page 55558]]

further information on Commerce's critical circumstances analysis, see 
the section ``Final Critical Circumstances Determination'' in the 
accompanying Issues and Decision Memorandum.

All-Others Rate

    Pursuant to section 705(c)(5)(A)(i) of the Act, Commerce will 
determine an all-others rate equal to the weighted-average 
countervailable subsidy rates established for exporters and/or 
producers individually examined, excluding any rates that are zero, de 
minimis, or rates based entirely under section 776 of the Act. We 
continue to calculate individual estimated countervailable subsidy 
rates for Junbang and Yantai Oriental that are not zero, de minimis, or 
based entirely on facts otherwise available. Therefore, we determined 
the all-others rate using the estimated countervailable subsidy rates 
calculated for Junbang and Yantai Oriental. For further information, 
see the section ``Calculation of the All-Others Rate'' in the 
accompanying Issues and Decision Memorandum.

Final Determination

    Commerce determines that the following estimated countervailable 
subsidy rates exist:

------------------------------------------------------------------------
                                                           Subsidy rate
                         Company                            (percent ad
                                                             valorem)
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Yantai Oriental Protein Tech Co., Ltd \7\...............           16.52
Zhaoyuan Junbang Trading Co., Ltd \8\...................           15.15
Focusherb LLC...........................................          355.89
Golden Protein Limited..................................          355.89
Shandong Jianyuan Bioengineering Co.....................          355.89
Yantai Wanpy International Trade........................          355.89
All Others..............................................           15.84
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Disclosure
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    \7\ Commerce finds the following companies to be cross-owned 
with Yantai Oriental: Jiujiang Tiantai Food Co., Ltd.; Shandong 
Sanjia Investment Holding Group Co., Ltd.; Yantai Yiyuan 
Bioengineering Co., Ltd.; and Yantai Zhongzhen Trading Co., Ltd.
    \8\ Commerce finds Yantai Shuangta Food Co. Ltd. to be cross-
owned with Junbang.
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    Commerce intends to disclose to interested parties the calculations 
and analysis performed in this final determination within five days of 
any public announcement or, if there is no public announcement, within 
five days of the date of the publication of this notice in the Federal 
Register, in accordance with 19 CFR 351.224(b).

Continuation of Suspension of Liquidation

    As a result of our Preliminary Determination, pursuant to sections 
703(d)(1)(B) and (d)(2) of the Act, and because we preliminarily 
determined that critical circumstances existed with respect to Junbang, 
Yantai Oriental, all other producers and/or exporters, and the non-
responsive companies, we instructed U.S. Customs and Border Protection 
(CBP) to suspend liquidation of entries of subject merchandise from 
China that were entered, or withdrawn from warehouse, for consumption, 
on or after September 19, 2023, which is 90 days prior to the date of 
the publication of the Preliminary Determination in the Federal 
Register. In accordance with section 703(d) of the Act, we instructed 
CBP to discontinue the suspension of liquidation of all entries of 
subject merchandise entered or withdrawn from warehouse on, or after, 
April 16, 2024, but to continue the suspension of liquidation of all 
entries of subject merchandise between September 19, 2023 and April 15, 
2024.
    If the U.S. International Trade Commission (ITC) issues a final 
affirmative injury determination, we will issue a countervailing duty 
order, reinstate the suspension of liquidation under section 706(a) of 
the Act, and require a cash deposit of estimated countervailing duties 
for entries of subject merchandise in the amounts indicated above. If 
the ITC determines that material injury, or threat of material injury, 
does not exist, this proceeding will be terminated, and all estimated 
duties deposited or securities posted as a result of the suspension of 
liquidation will be refunded or canceled.

ITC Notification

    In accordance with section 705(d) of the Act, we will notify the 
ITC of our final affirmative determination that countervailable 
subsidies are being provided to producers and exporters of pea protein 
from China. Because the final determination is affirmative, in 
accordance with section 705(b) of the Act, the ITC will make its final 
determination as to whether the domestic industry in the United States 
is materially injured, or threatened with material injury, by reason of 
imports of pea protein from China no later than 45 days after our final 
determination. In addition, we are making available to the ITC all non-
privileged and nonproprietary information related to this 
investigation. We will allow the ITC access to all privileged and 
business proprietary information in our files, provided the ITC 
confirms that it will not disclose such information, either publicly or 
under an administrative protective order (APO), without the written 
consent of the Assistant Secretary for Enforcement and Compliance. If 
the ITC determines that material injury or threat of material injury 
does not exist, this proceeding will be terminated and all cash 
deposits will be refunded. If the ITC determines that such injury does 
exist, Commerce will issue a countervailing duty order directing CBP to 
assess, upon further instruction by Commerce, countervailing duties on 
all imports of the subject merchandise that are entered, or withdrawn 
from warehouse, for consumption on or after the effective date of the 
suspension of liquidation, as discussed above in the ``Continuation of 
Suspension of Liquidation'' section.

Administrative Protective Order

    In the event that the ITC issues a final negative injury 
determination, this notice will serve as the only reminder to parties 
subject to an APO of their responsibility concerning the destruction of 
proprietary information disclosed under APO, in accordance with 19 CFR 
351.305(a)(3). Timely written notification of the return/destruction of 
APO materials or conversion to judicial protective order is hereby 
requested. Failure to comply with the regulations and terms of an APO 
is a violation which is subject to sanction.

Notification to Interested Parties

    This determination is issued and published pursuant to sections 
705(d) and 777(i) of the Act, and 19 CFR 351.210(c).

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

Appendix I

Scope of the Investigation

    The product within the scope of this investigation is high 
protein content (HPC) pea protein, which is a protein derived from 
peas (including, but not limited to, yellow field peas and green 
field peas) and which contains at least 65 percent protein on a dry 
weight basis. HPC pea protein may also be identified as, for 
example, pea protein concentrate, pea protein isolate, hydrolyzed 
pea protein, pea peptides, and fermented pea protein. Pea protein, 
including HPC pea protein, has the Chemical Abstracts Service (CAS) 
registry number 222400-29-5.
    The scope covers HPC pea protein in all physical forms, 
including all liquid (e.g., solution) and solid (e.g., powder) 
forms, regardless of packaging or the inclusion of

[[Page 55559]]

additives (e.g., flavoring, suspension agents, preservatives).
    The scope also includes HPC pea protein described above that is 
blended, combined, or mixed with non-subject pea protein or with 
other ingredients (e.g., proteins derived from other sources, 
fibers, carbohydrates, sweeteners, and fats) to make products such 
as protein powders, dry beverage blends, and protein fortified 
beverages. For any such blended, combined, or mixed products, only 
the HPC pea protein component is covered by the scope of this 
investigation. HPC pea protein that has been blended, combined, or 
mixed with other products is included within the scope, regardless 
of whether the blending, combining, or mixing occurs in third 
countries.
    HPC pea protein that is otherwise within the scope is covered 
when commingled (i.e., blended, combined, or mixed) with HPC pea 
protein from sources not subject to this investigation. Only the 
subject component of the commingled product is covered by the scope.
    A blend, combination, or mixture is excluded from the scope if 
the total HPC pea protein content of the blend, combination, or 
mixture (regardless of the source or sources) comprises less than 
five percent of the blend, combination, or mixture on a dry weight 
basis.
    All products that meet the written physical description are 
within the scope of the investigation unless specifically excluded. 
The following products, by way of example, are outside and/or 
specifically excluded from the scope of the investigation:
     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. Scope of the Investigation
IV. Final Critical Circumstances Determination
V. Subsidies Valuation Information
VI. Use of Facts Otherwise Available and Application of Adverse 
Inferences
VII. Analysis of Programs
VIII. Discussion of the Issues
    Comment 1: Whether the Application of Adverse Facts Available 
(AFA) for the Provision of Whole Peas for Less Than Adequate 
Remuneration (LTAR) Is Appropriate
    Comment 2: Whether the Application of AFA for the Provision of 
Electricity for LTAR Is Appropriate
    Comment 3: Whether Policy Loans to the Pea Protein Industry Are 
Countervailable
    Comment 4: Whether Commerce Should Apply AFA Regarding the 
Export Buyer's Credits Program (EBCP)
    Comment 5: Whether the Income Tax Deductions for Research and 
Development (R&D) Expenses Under the Enterprise Income Tax (EIT) Law 
Program Are Specific
    Comment 6: Appropriate Benefit Calculation for the Income Tax 
Deduction for R&D Expenses Program
    Comment 7: Whether to Use a Different Sales Denominator in 
Junbang's Income Tax Program Benefit Calculations
    Comment 8: Appropriate Cash Deposit Rate for Cooperative 
Exporters
IX. Calculation of the All-Others Rate
X. Recommendation

[FR Doc. 2024-14687 Filed 7-3-24; 8:45 am]
BILLING CODE 3510-DS-P