CLA-2-04:S:N:N1:229
Mr. William J. LeClair
Administrative and Regulatory Advisor
Trans-Border Customs Services, Inc.
P.O. Box 800
Champlain, NY 12919
RE: The tariff classification of a Whey Dairy Blend from Canada.
Dear Mr. LeClair:
In your letter dated June 15, 1990, you requested a tariff
classification ruling on behalf of your client, the Clofine
Company of Linwood, New Jersey.
This product is a dry powder, said to be a mixture of whey protein
concentrate (40 percent) and lactose (60 percent), and is intended to
be sold as a dairy blend for use in making confectionery,
(specifically, for making chocolate candy). This WHEY DAIRY BLEND is
described as having an average composition of 3.5 percent moisture (but
never more than 4 percent, by weight), 12 percent protein (but never
less than 9 percent), 5 percent ash (but never more than 5.5 percent),
2 percent fat (but never more than 2 percent), and 80 to 82 percent
lactose. A sample of this product was analyzed by the Customs
Laboratory at New York and found to contain, by weight, 14.3 percent
moisture, 11.1 percent protein, 69.7 percent lactose, 3.7 percent ash,
and less than 1 percent fat. The pH of the product was 6.1. An
adjustment for excess moisture in the product yielded a composition,
based on 3.5 percent moisture, with a protein content of 12.3 percent,
a lactose content of 77.23 percent, and an ash content of 4.1 percent.
Frank Kosikowski, on page 450 in "Cheese and Fermented Milk Foods" (2nd
ed., 1977), in listing the components of dried sweet whey, shows the
moisture content as 3.5 percent by weight, the protein content as 13.1
percent, lactose as 75.0 percent, the fat content as under 1 percent,
and the ash content as 7.3 percent. On page 448 of that same reference
work, the pH for sweet whey is shown as ranging between 5.8 and 6.6,
depending on the source of the whey. (For example, in "Modern Dairy
Products" (3rd ed., 1975), Lincoln M. Lambert states on page 286 that
"[s]weet whey (pH 6.1) such as obtained from the whey of Swiss cheese
and Cheddar cheese is relatively easy to dry compared to acid whey
obtained from cottage cheese and cream cheese.") Based on the
foregoing analysis, we would conclude that this WHEY DAIRY BLEND,
however produced, has approximately the same average composition as
dried sweet whey and is classifiable under the heading therefor.
The applicable subheading for this DAIRY BLEND will be
0404.10.4000, Harmonized Tariff Schedule of the United States
(HTS), which provides for whey, whether or not concentrated or
containing added sugar or other sweetening matter:...Dried. The
rate of duty will be 3.3 cents per kilogram.
Goods classifiable under subheading 0404.10.4000, HTS, which
have originated in the territory of Canada, will be entitled to
an 2.6 cents per kilogram rate of duty under the United States-
Canada Free Trade Agreement (FTA) upon compliance with all
applicable regulations.
Articles classifiable in HTS subheading 0404.10.4000 are
subject to quota quantity restrictions listed in subchapter IV of
Chapter 99 in HTS subheading 9902.10.18, which limits the amount
of such goods which may be imported into the United States to an
annual quota quantity of 224,998 kilograms. Additionally, an
import license, issued to the importer by the United States
Department of Agriculture, will be required at the time such
merchandise is entered for consumption into the United States.
Questions regarding licensing procedures and applications
for license to import cheese subject to quota should be addressed
to:
Head, Dairy and Import Group
Dairy, Livestock and Poultry Division Foreign Agricultural Service
U.S. Department of Agriculture
Washington, D.C. 20250
This ruling is being issued under the provisions of Section
177 of the Customs Regulations (19 C.F.R. 177).
A copy of this ruling letter should be attached to the entry
documents filed at the time this merchandise is imported. If the
documents have been filed without a copy, this ruling should be
brought to the attention of the Customs officer handling the
transaction.
Sincerely,
Jean F. Maguire
Area Director
New York Seaport