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NY 880126

February 8, 1993



TARIFF NO.: 0404.10.2000

Ms. Barbara Hutton
McCarthy Consultant Services, Inc.
1151 Gorham Street, Unit 8
Newmarket, Ontario L3Y 7V1

RE: The tariff classification of CONCENTRATED WHEY from Canada.

Dear Ms. Hutton:

In your letter dated November 4, 1992, you requested a tariff classification ruling on behalf of your client, Ault Foods Ltd.

The products in question are three CONCENTRATED, or EVAPORATED ACID WHEYS with a solids content of 30 percent, 40 percent and 50 percent. A sample of the 30 percent solids evaporated whey consisted of a dark yellow liquid. The 40 and 50 percent evaporated wheys were light yellow liquids. The 30 percent concentration was found, on analysis by the Customs Laboratory at New York, to be in a fluid state and to consist of 69.4 percent moisture and 30.6 percent solids, of which (on a dry basis) 57.9 percent was lactose, 13.3 percent protein, 2.3 percent fat and 10.8 percent ash, with a pH of 4.4. The 40 percent concentrate was found, on analysis, to be in a fluid state and to consist of 61.6 percent moisture and 38.4 percent solids, of which (on a dry basis) 59.2 percent was lactose, 14.7 percent protein, 0.8 percent fat, and 10.6 percent ash, with a pH of 4.8. The 50 percent concentrate was found, on analysis, to be a viscous paste and to consist of 51.5 percent moisture and 48.5 percent solids, of which (on a dry basis) 62.7 percent was lactose, 14.5 percent protein, 1.1 percent fat and 12.2 percent ash, with a pH of 4.3. Although these products suffered a slight loss in composition due to the crystallization of some five to nine percent lactose during processing, they retain, in our opinion, the character of fluid whey.

The applicable subheading for these EVAPORATED ACID WHEYS, concentrated to 30, 40 and 50 percent solids by weight will be 0404.10.2000, Harmonized Tariff Schedule of the United States (HTS), which provides for Whey, whether or not concentrated or containing added sugar or other sweetening matter:... Fluid. The duty rate will be 0.4 cents per liter.

Goods classifiable under subheading 0404.10.2000, HTS, which have originated in the territory of Canada, will be entitled to a 0.2 cents per liter rate of duty under the United States-Canada Free Trade Agreement (FTA) upon compliance with all applicable regulations.

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

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