United States International Trade Commision Rulings And Harmonized Tariff Schedule
faqs.org  Rulings By Number  Rulings By Category  Tariff Numbers
faqs.org > Rulings and Tariffs Home > Rulings By Number > 1991 NY Rulings > NY 0853721 - NY 0853940 > NY 0853753

Previous Ruling Next Ruling

NY 853753

August 23, 1990



TARIFF NO.: 0404.10.4000 (9904.10.18)

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.


Jean F. Maguire
Area Director

Previous Ruling Next Ruling