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NY B80282 December 13, 1996

CLA-2-04:RR:NC:2:231 B80282


TARIFF NO.: 0404.10.1100; 0404.10.1500

Ms. Barbara Hutton
McCarthy Consultant Services, Inc.
1151 Gorham Street, Unit 8
Newmarket, Ontario L3Y 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 December 5, 1996, you requested a tariff classification ruling on behalf of your client, Ault Foods Ltd., Etobicoke, Ontario.

The product, "Darisweet 500," is a dairy based sweetener in syrup form that consists of modified whey that is deproteinated and lactose reduced. The principal use is as a sweetener in bakery and confectionery applications. The ingredients will be 49.5 percent carbohydrates, 40 percent water, 18.6 percent glucose, 15.5 percent galactose, 13.2 percent other carbohydrates (as trisaccharides and oligosaccharides of galactose), 7.8 percent ash, 2.5 percent protein, 2.2 percent lactose, and 0.2 percent milk fat.

The final product is of 100 percent Canadian origin, produced in either an Ontario or Quebec plant, from whey originating in the same plants.

The applicable subheading for Darisweet 500, 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. Darisweet 500, 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 2 percent ad valorem rate of duty (in 1997 a 1 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 $1.156 per kilogram, plus 9.5 percent ad valorem (in 1997 US $1.126 per kilogram, plus 9.2 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 Part 177 of the Customs Regulations (19 CFR 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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