Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Pea Protein from the People's Republic of China

Certain Pea Protein From the People's Republic of China: Antidumping and Countervailing Duty Orders

Dates

Applicable August 26, 2024.

Supplementary Information

Background

In accordance with sections 705(d), 735(d), and 777(i) of the Tariff Act of 1930, as amended (the Act), on July 5, 2024, Commerce published in the Federal Register its affirmative final determination of sales at less-than-fair-value (LTFV) of pea protein from China  ⁽¹⁾ and its affirmative final determination that countervailable subsidies are being provided to producers and exporters of pea protein from China. ⁽²⁾ As part of these determinations, Commerce made affirmative critical circumstances findings for the separate rate companies and the China-wide entity in the AD investigation and for all producers and/or exporters and non-responsive companies in the CVD investigation.

On August 15, 2024, pursuant to sections 735(d) and 705(d) of the Act, the ITC notified Commerce of its affirmative final determinations that an industry in the United States is materially injured within the meaning of sections 735(b)(1)(A)(i) and 705(b)(1)(A)(i) of the Act by reason of LTFV imports of pea protein from China and subsidized imports of pea protein from China. ⁽³⁾ In addition, the ITC found that critical circumstances exist with regard to imports from China. ⁽⁴⁾

Scope of the Orders

The product covered by these orders is pea protein from China. For a complete description of the scope of these orders, see the appendix to this notice.

AD Order

Based on the above-referenced affirmative final determination, in accordance with section 735(c)(2) and 736 of the Act, Commerce is issuing this AD order. Because the ITC determined that imports of pea protein from China are materially injuring a U.S. industry, unliquidated entries of such merchandise entered, or withdrawn from warehouse, for consumption, are subject to the assessment of ADs. In addition, the ITC found that critical circumstances exist with respect to imports subject to Commerce's affirmative critical circumstances finding within the meaning of section 735(b)(4)(A) of the Act. As a result of Commerce's affirmative critical circumstances determination under section 735(a)(3) of the Act, and the ITC's affirmative critical circumstances determination under section 735(b)(4)(A) of the Act, retroactive duties will be applied to the relevant imports for a period of 90 days prior to the suspension of liquidation ( i.e., 90 days prior to the date of publication of the affirmative LTFV Preliminary Determination ). ⁽⁵⁾

Therefore, in accordance with section 736(a)(1) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to assess, upon further instruction by Commerce, antidumping duties equal to the amount by which the normal value of the merchandise exceeds the export price (or constructed export price) of the merchandise, for all relevant entries of pea protein from China 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 LTFV Preliminary Determination, in accordance with the critical circumstances finding in the LTFV Final Determination, but will not include entries occurring after the expiration of the provisional measures period and before publication of the ITC's final affirmative injury determination, as further described below.

Continuation of Suspension of Liquidation and Cash Deposits-AD

Except as noted in the "Provisional Measures-AD" section of this notice, in accordance with section 736 of the Act, Commerce intends to instruct CBP to continue to suspend liquidation on all relevant entries of pea protein from China, in accordance with section 736 of the Act. These instructions suspending liquidation will remain in effect until further notice.

Commerce also intends to instruct CBP to require cash deposits equal to the estimated weighted-average dumping margins, with offsets for export subsidies where appropriate, as indicated in the tables below. Accordingly, effective the date of publication of the ITC's final affirmative injury determination, CBP will suspend the liquidation of entries of subject merchandise, and require, at the same time that importers would normally deposit estimated duties on the merchandise, a cash deposit equal to the rates listed below. The relevant China-wide entity rate applies to all producers or exporters not specifically listed, as appropriate.

Estimated Weighted-Average Dumping Margins

The estimated weighted-average dumping margins as published in Commerce's LTFV Final Determination are as follows:

Provisional Measures-AD

Section 733(d) of the Act states that instructions issued under section 733(d)(1) and (2) of the Act pursuant to an affirmative preliminary determination may not remain in effect for more than four months, except where exporters representing a significant proportion of exports of the subject merchandise request that Commerce extends the four-month period to no more than six months. At the request of exporters that account for a significant proportion of exports of pea protein from China, Commerce extended the four-month period to six months in this investigation. ⁽⁶⁾ Commerce published the LTFV Preliminary Determination on February 13, 2024. ⁽⁷⁾

The extended provisional measures period, beginning on the date of publication of the LTFV Preliminary Determination, ended on August 10, 2024. Pursuant to section 737(b) of the Act, the collection of cash deposits at the rates listed above will begin on the date of publication of the ITC's final injury determination. Therefore, in accordance with section 736(a)(1) of the Act and our practice, Commerce intends to instruct CBP to terminate the suspension of liquidation and to liquidate, without regard to antidumping duties, unliquidated entries of pea protein from China entered, or withdrawn from warehouse, for consumption, on or after August 11, 2024, the first day provisional measures were no longer in effect, until and through the day preceding the date of publication of the ITC's final injury determination in the Federal Register . Suspension of liquidation and the collection of cash deposits will resume on the date of publication of the ITC's final determination in the Federal Register .

CVD Order

As stated above, based on the above-referenced affirmative final determination by the ITC that an industry in the United States is materially injured within the meaning of section 705(b)(1)(A)(i) of the Act by reason of subsidized imports of pea protein from China, in accordance with section 705(c)(2) of the Act, Commerce is issuing this CVD order. Because the ITC determined that imports of pea protein from China are materially injuring a U.S. industry, unliquidated entries of subject merchandise entered, or withdrawn from warehouse, for consumption, are subject to the assessment of CVDs. In addition, the ITC found that critical circumstances exist with respect to imports from China subject to Commerce's affirmative critical circumstances finding within the meaning of section 705(b)(4)(A) of the Act. As a result of Commerce's affirmative critical circumstances determination under section 705(a)(2) of the Act, and the ITC's affirmative critical circumstances determination under section 705(b)(4)(A) of the Act, retroactive duties will be applied to the relevant imports for a period of 90 days prior to the suspension of liquidation, ( i.e., 90 days prior to the date of publication of the affirmative CVD Preliminary Determination ). ⁽⁸⁾

Therefore, in accordance with section 706(a) of the Act, Commerce will direct CBP to assess, upon further instruction by Commerce, countervailing duties on all relevant entries of pea protein from China. With respect to entries for Yantai Oriental Protein Tech Co., Ltd., Zhaoyuan Junbang Trading Co., Ltd., all other producers and/or exporters, and the non-responsive companies, ⁽⁹⁾ CVDs will be assessed on unliquidated entries of pea protein from China entered, or withdrawn from warehouse, for consumption, on or after September 19, 2023, which is 90 days prior to the date of publication of the CVD Preliminary Determination.⁽¹⁰⁾ CVDs will not be assessed on entries occurring after the expiration of the provisional measures period and before the publication of the ITC's final affirmative injury determination, as further described in the "Provisional Measures-CVD" section of this notice.

Continuation of Suspension of Liquidation and Cash Deposits-CVD

In accordance with section 706 of the Act, Commerce intends to instruct CBP to reinstitute the suspension of liquidation of pea protein from China, effective on the date of publication of the ITC's final affirmative injury determination in the Federal Register . These instructions suspending liquidation will remain in effect until further notice.

Commerce also intends, pursuant to section 706(a)(1) of the Act, to instruct CBP to require cash deposits equal to the amounts as indicated below. Accordingly, effective on the date of publication of the ITC's final affirmative injury determination in the Federal Register , CBP will require, at the same time as importers would normally deposit estimated customs duties on the subject merchandise, a cash deposit for each entry of subject merchandise equal to the subsidy rates listed below. ⁽¹¹⁾ The all-others rate applies to all producers or exporters not specifically listed below, as appropriate.

Estimated Countervailing Duty Subsidy Rates

The estimated countervailing duty subsidy rates as published in Commerce's CVD Final Determination are as follows:

Provisional Measures-CVD

Section 703(d) of the Act states that the suspension of liquidation pursuant to an affirmative preliminary determination may not remain in effect for more than four months. Commerce published the CVD Preliminary Determination on December 18, 2023. ⁽¹⁴⁾ As such, the four-month period beginning on the date of publication of the CVD Preliminary Determination ended on April 15, 2024.

Therefore, in accordance with section 703(d) of the Act, we instructed CBP to terminate the suspension of liquidation and to liquidate, without regard to CVDs, unliquidated entries of pea protein from China entered, or withdrawn from warehouse, for consumption, on or after April 16, 2024, the date on which the provisional measures expired, until and through the day preceding the date of publication of the ITC's final injury determination in the Federal Register . Suspension of liquidation and the collection of cash deposits will resume on the date of publication of the ITC's final determination in the Federal Register .

Establishment of the Annual Inquiry Service List

On September 20, 2021, Commerce published the Final Rule in the Federal Register . ⁽¹⁵⁾ On September 27, 2021, Commerce also published the Procedural Guidance in the Federal Register . ⁽¹⁶⁾ The Final Rule and Procedural Guidance provide that Commerce will maintain an annual inquiry service list for each order or suspended investigation, and any interested party submitting a scope ruling application or request for circumvention inquiry shall serve a copy of the application or request on the persons on the annual inquiry service list for that order, as well as any companion order covering the same merchandise from the same country of origin.

In accordance with the Procedural Guidance, for orders published in the Federal Register after November 4, 2021, Commerce will create an annual inquiry service list segment in Commerce's online e-filing and document management system, Antidumping and Countervailing Duty Electronic Service System (ACCESS), available at https://access.trade.gov, within five business days of publication of the order. Each annual inquiry service list will be saved in ACCESS, under each case number, and under a specific segment type called "AISL-Annual Inquiry Service List."  ⁽¹⁷⁾

Interested parties who wish to be added to the annual inquiry service list for an order must submit an entry of appearance to the annual inquiry service list segment for the order in ACCESS within 30 days after the date of publication of the order. For ease of administration, Commerce requests that law firms with more than one attorney representing interested parties in an order designate a lead attorney to be included on the annual inquiry service list. Commerce will finalize the annual inquiry service list within five business days thereafter. As mentioned in the Procedural Guidance, the new annual inquiry service list will be in place until the following year, when the opportunity notice for the anniversary month of the order is published.

Commerce may update an annual inquiry service list at any time as needed based on interested parties' amendments to their entries of appearance to remove or otherwise modify their list of members and representatives, or to update contact information. Any changes or announcements pertaining to these procedures will be posted to the ACCESS website.

Special Instructions for Petitioners and Foreign Governments

In the Final Rule, Commerce stated that, "after an initial request and placement on the annual inquiry service list, both petitioners and foreign governments will automatically be placed on the annual inquiry service list in the years that follow."  ⁽¹⁸⁾ Accordingly, as stated above, the petitioner and the Government of China should submit their initial entries of appearance after publication of this notice in order to appear in the first annual inquiry service list for those orders for which they qualify as an interested party. Pursuant to 19 CFR 351.225(n)(3), the petitioner and the Government of China will not need to resubmit their entries of appearance each year to continue to be included on the annual inquiry service list. However, the petitioner and the Government of China are responsible for making amendments to their entries of appearance during the annual update to the annual inquiry service list in accordance with the procedures described above.

Notifications to Interested Parties

This notice constitutes the AD and CVD orders with respect to pea protein from China, pursuant to section 736(a) and 706(a) of the Act. Interested parties can find a list of AD and CVD orders currently in effect at https://enforcement.trade.gov/stats/iastats1.html.

These orders are published in accordance with sections 736(a) and 706(a) of the Act, and 19 CFR 351.211(b).

Appendix

Scope of the Orders

The product within the scope of these orders 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 these orders. 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 these orders. 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 these orders unless specifically excluded. The following products, by way of example, are outside and/or specifically excluded from the scope of these orders:

• 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 is dispositive.

⁽¹⁾ See 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, 89 FR 55559 (July 5, 2024) ( LTFV Final Determination ).

⁽²⁾ See Certain Pea Protein from the People's Republic of China: Final Affirmative Countervailing Duty Determination and Final Affirmative Critical Circumstances Determination, 89 FR 55557 (July 5, 2024) ( CVD Final Determination ).

⁽³⁾ See ITC's Letter, "Notice of ITC Final Determinations," dated August 15, 2024; see also Certain Pea Protein from China, Inv. Nos. 701-TA-692 and 731-TA-1628 (Final), USITC Pub. 5529 (August 2024) ( ITC Final Determination Publication ), at 3.

⁽⁴⁾ See ITC Final Determination Publication.

⁽⁵⁾ See section 735(c)(4) of the Act; see also Statement of Administrative Action Accompanying the Uruguay Round Agreements Act, H.R. Doc. 103-316, Vol. 1 (1994) (SAA), at 876 ("If both agencies make affirmative critical circumstances determinations in their final investigations, retroactive duties will be applied for a period ninety days prior to suspension of liquidation."); 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) ( LTFV Preliminary Determination ).

⁽⁶⁾ See LTFV Preliminary Determination.

⁽⁷⁾ Id.

⁽⁸⁾ See section 705(c)(4) of the Act; see also SAA at 876 ("If both agencies make affirmative critical circumstances determinations in their final investigations, retroactive duties will be applied for a period ninety days prior to suspension of liquidation.").

⁽⁹⁾  The non-responsive companies are: Focusherb LLC; Golden Protein Limited; Shandong Jianyuan Bioengineering Co.; and Yantai Wanpy International Trade.

⁽¹⁰⁾ 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) ( CVD Preliminary Determination ).

⁽¹¹⁾ See section 706(a)(3) of the Act.

⁽¹²⁾  Commerce finds the following companies to be cross owned with Yantai Oriental Protein Tech Co., Ltd: Jiujiang Tiantai Food Co., Ltd.; Shandong Sanjia Investment Holding Group Co., Ltd.; Yantai Yiyuan Bioengineering Co., Ltd.; and Yantai Zhongzhen Trading Co., Ltd.

⁽¹³⁾  Commerce finds Yantai Shuangta Food Co. Ltd. to be cross owned with Zhaoyuan Junbang Trading Co., Ltd.

⁽¹⁴⁾ See CVD Preliminary Determination.

⁽¹⁵⁾ See Regulations to Improve Administration and Enforcement of Antidumping and Countervailing Duty Laws, 86 FR 52300 (September 20, 2021) ( Final Rule ).

⁽¹⁶⁾ See Scope Ruling Application; Annual Inquiry Service List; and Informational Sessions, 86 FR 53205 (September 27, 2021) ( Procedural Guidance ).

⁽¹⁷⁾ This segment will be combined with the ACCESS Segment Specific Information (SSI) field, which will display the month in which the notice of the order or suspended investigation was published in the Federal Register , also known as the anniversary month. For example, for an order under case number A-000-000 that was published in the Federal Register in January, the relevant segment and SSI combination will appear in ACCESS as "AISL-January Anniversary." Note that there will be only one annual inquiry service list segment per case number, and the anniversary month will be pre-populated in ACCESS.

⁽¹⁸⁾ See Final Rule, 86 FR at 52335.