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NY 814596

September 18, 1995

CLA-2-04:S:N:N2:231 814596


TARIFF NO.: 0404.10.1100; 0404.10.1500

Ms. Barbara Hutton
McCarthy Consultant Services, Inc.
1101 Gorham Street, Unit G
Newmarket, Ontario L0Y 7V1

RE: The tariff classification and status under the North American Free Trade Agreement (NAFTA) of modified whey from Canada; Article 509
Dear Ms. Hutton:

In your letter, dated September 6, 1995, you requested a tariff classification ruling on behalf of your client, Ault Foods Ltd., Etobicoke, Ontario.

The product, "Dairylight 401," is a dairy ingredient in powder form that consists of whey protein concentrate, dairy product solids (deproteinated whey), and dry acid whey. The principal use is as a fat replacer in the manufacture of salad dressing formulations. The ingredients will be lactose (61.0 - 71.0 percent), protein (18.0 - 22.0 percent), ash (6.5 - 9.5 percent), moisture (2.6 - 5.0 percent), and fat (0.5 - 3.5 percent). The percentage of dry acid whey will be 22 - 25 percent. The pH will be 5.2 - 6.0 percent.

Dairylight 401 is produced in Canada from raw materials of Canadian and U.S. origin. Both the whey protein concentrate and the dairy product solids are of 100 percent Canadian origin. The dry acid whey is imported from the U.S.

The applicable subheading for Dairylight 401, if imported in quantities that fall within the limits described in additional U.S. note 10 to chapter 4, will be 0404.10.1100, Harmonized Tariff Schedule of the United States (HTS), which provides for whey, whether or not concentrated or containing added sugar or other sweetening matter; products consisting of natural milk constituents, whether or not containing added sugar or other sweetening matter, not elsewhere specified or included, whey and modified whey, whether or not concentrated or containing added sugar or other sweetening matter, modified whey, other, described in additional U.S. note 10 to chapter 4 and entered pursuant to its provisions. The general rate of duty will be 13 percent ad valorem.

Dairylight 401, being wholly obtained or produced entirely in the territory of Canada and/or the United States, will meet the requirements of HTSUSA General Note 12(b)(i), and will therefore be entitled to a 3 percent ad valorem rate of duty under the NAFTA upon compliance with all applicable laws, regulations, and agreements.

If the quantitative limits of additional U.S. note 10 to chapter 4 have been reached, the product will be classified in subheading 0404.10.1500, HTS, and will be dutiable at US $1.187 per kilogram, plus 9.8 percent ad valorem. In addition, products classified in subheading 0404.10.1500, HTS, will be subject to additional duties based on their value, as described in subheadings 9904.04.50 - 9904.05.01, HTS.

This ruling is being issued under the provisions of Section 177 of the Customs Regulations (19 C.F.R. 177).

A copy of the ruling or the control number indicated above should be provided with the entry documents filed at the time this merchandise is imported. If you have any questions regarding the ruling, contact National Import Specialist Ralph Conte at (212) 466-5759.


Roger J. Silvestri

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