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.

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. 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.

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. 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.

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, 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). 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.

Separate Rates

We preliminarily found certain companies to be eligible for a separate rate in the Preliminary Determination. 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.

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.

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. The simple average of the petition rates in this LTFV investigation is 122.19 percent. See the table below in the “Final Determination” section of this notice.

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.

Final Determination

The final estimated weighted-average dumping margins are as follows:

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.

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).

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