Notice to Importers

Powdered Whey (Item125.1 on the Import Control List)

Serial No. 836
Date: June 17, 2013

This Notice replaces Notice to Importers No. 814 dated June 11, 2012, and will remain in effect until further notice.

This Notice is provided pursuant to the authority of the Export and Import Permits Act (EIPA) and its corresponding regulations.

In Brief

Imports of powdered whey are subject to import controls under Canada’s Export and Import Permits Act (EIPA).  Accordingly, an import permit is required for shipments of powdered whey to enter Canada.  Import permits for shipments of powdered whey destined to the Canadian market are issued to allocation holders under Canada’s tariff rate quota (TRQ) for powdered whey, which is administered by Foreign Affairs, Trade and Development Canada (DFATD). 

The access quantity for the powdered whey TRQ is 3,198,000 kg. The allocation period for the powdered whey TRQ extends from August 1 to July 31, inclusive. 

This Notice to Importers sets out the policies and practices pertaining to the administration of the TRQ, including the allocation, under-utilization, return, and transfer policies.  This Notice also explains how to apply for import permits.

Table of Contents

• 1. Purpose
• 2. General Information
• 3. Products Covered
• 4. Allocation Policy
• 5. Related Persons
• 6. How to Apply for an Allocation
• 7. Under-Utilization and Return Policies
• 8. Supplemental Imports
• 9. Import Permits
• 10. Contact Us
• Appendices
  • Appendix 1 - Information concerning related persons
  • Appendix 2 - Application form for a share of the powdered whey TRQ (PDF Document - 162 KB)

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1. Purpose

1.1. The purpose of this Notice is:

• a. to set out the policies and practices pertaining to the administration of Canada’s TRQ for powdered whey;
• b. to invite applications for allocations under the TRQ for the next quota year; and
• c. to explain how to apply for import permits for imports of powdered whey.

2. General Information

2.1. Background

2.1.1. In accordance with its commitments under the World Trade Organization (WTO), Canada has in place a TRQ for imports of powdered whey.

2.1.2. Under Canadian TRQs, in any given year, a predetermined quantity of imports of a good controlled under the EIPA may enter Canada at a lower rate of duty, while imports over this quantity are subject to higher rates of duty. The TRQs therefore have three components: an import access quantity negotiated with Canada’s international trade partners; a within access commitment rate of duty that applies to imports up to the access level; and a higher, over access commitment rate of duty for imports over the access level.

2.1.3. The within and over access rates of duty that apply to imports of powdered whey can be found in Canada’s Customs Tariff.

2.1.4. Pursuant to the EIPA and its corresponding regulations, when deciding whether to issue an import allocation or whether to consent to a transfer, the Minister shall take into account whether the import allocation holder has furnished false or misleading information in connection with any reports required by the Act or the regulations made under the Act or by any condition of an import allocation or import permit during the 12-month period preceding the period in respect of which the import allocation or transfer is to apply. Furthermore, when issuing import permits to allocation holders the Minister may attach conditions to import allocations and/or to import permits, and may amend, suspend, cancel or re-instate import permits and allocations.

2.1.5. Failure by an applicant to provide any information requested by DFATD, or failure to comply with any condition of an allocation or permit issued pursuant to the EIPA may result in the rejection of the application for a share of the powdered whey TRQ, the reduction or cancellation of an allocation issued pursuant to the EIPA, or the cancellation of associated permits.

2.2. Access Quantity

2.2.1. The access level for the powdered whey TRQ negotiated under the WTO is 3,198,000 kilograms.

2.3. Allocation Period

2.3.1.  The quota allocation year for the powdered whey TRQ extends from August 1 to July 31, inclusive.

3. Products Covered

3.1. This Notice pertains to Item 125.1 of the Import Control List (ICL), namely powdered whey falling under heading Nos. 0404.10.21 or 0404.10.22 in the list of tariff provisions set out in the Schedule to the Customs Tariff.  It does not cover whey protein concentrate, nor evaporated, condensed and liquid whey, which are not on the ICL and consequently do not require an import permit.

3.2. Importers who require a determination as to whether the product they intend to import is eligible under the powdered whey TRQ are encouraged to obtain an advanced tariff classification ruling from the appropriate regional client service office of the Canada Border Services Agency (CBSA).

4. Allocation Policy

4.1. The TRQ for powdered whey shall be allocated to eligible applicants on the basis of their requirements, with first priority to users of specialty-type wheys:

• a. Allocations shall be made first to users (i.e. processors/further processors) of specialty-type wheys, such high-heat whey and Kosher whey, that can demonstrate a requirement for these powdered wheys in their manufacturing/product formulation(s).  To the extent that requirements exceed the TRQ, allocations will be made on a pro-rata basis.
• b. Once the requirements of those companies using specialty-type wheys have been met, the balance of the TRQ, if any, shall be allocated to processors and further processors that can demonstrate a requirement for whey in their manufacturing/product formulation.  To the extent that requirements exceed the remaining balance of the TRQ, allocations will be made on a pro-rata basis.

4.2. All applicants must provide the following information in support of their application:

• a. Company profile, including any affiliations (see Appendix 1, Information Concerning Related Persons);
• b. Type of powdered whey for which allocation is being requested;
• c. Quantity requested; and,
• d. Description of product(s) being manufactured and ratio of imported ingredients for use in their production (e.g. product formulations).

5. Related Persons

5.1. For the purpose of this Notice, where two or more applicants are related persons, they shall be eligible for only one allocation. To determine which persons are related, an applicant for an allocation must provide a “list of related persons” (see definition of “related persons” set out in Appendix 1).

5.2. In the case of separate applications from related applicants involving a parent company and one or more subsidiaries, only the application nominated by the parent company will be considered. If the parent company does not make such a nomination in writing, it shall be determined by DFATD.

6. How to Apply for an Allocation

6.1. Applicants who wish to apply for an allocation under the powdered whey TRQ are invited to submit their application form (see Appendix 2) no later than the 15th of July immediately preceding the opening of the quota year.

6.2. Applications sent by MAIL or COURIER should be addressed to the powdered whey quota manager at DFATD. The name and mailing address of the powdered whey quota manager can be obtained on the DFATD website, under Contact Us.

6.3. Applications sent by facsimile will not be accepted. Only original applications will be accepted. In order to facilitate the allocation process, however, applicants are encouraged to provide a copy of the original application by fax or by e-mail.

6.4. Applications postmarked after the 15th  of July immediately preceding the opening of the quota year, or in a format other than that required, will not be considered. Claims of lost applications will not normally be considered without acceptable proof that they were sent before the deadline (e.g., courier receipt).

7. Under-Utilization and Return Policies

7.1. Under-utilization Policy

7.1.1. An allocation holder with a utilization rate less than 95% in the previous quota year may have its allocation adjusted downward by an under-utilization penalty for the new quota year.^{Footnote 1}

7.1.2.  For allocation holders that under-utilized in the previous quota year, allocations in the new quota year will be reduced by the percentage of the allocation not utilized in the previous quota year. ^{Footnote 2}

7.1.3. Allocation holders that under-utilized during the previous quota year will be advised of the applicable under-utilization penalty before the allocations are finalized for the new quota year.

7.2. Return Policy

7.2.1. Allocation holders may return any portion of the balance of their allocation no later than February 28 of the quota year.  Any portion of an allocation that is returned by this date will be considered as having been used for purposes of administering the under-utilization policy in 7.1.

7.2.2. Returned quota available for reallocation will be allocated, on a first- come, first-serviced basis, to eligible applicants making requests for additional TRQ allocation during the quota year.

8. Supplemental Imports

8.1. The Minister may, at his discretion, authorize imports of powdered whey apart from the import access quantity. The Notice to Importers Dairy Products - Supplementary Imports explains the administration of supplemental imports.  The Notice is available on the DFATD website at Controlled Products – Agriculture - Dairy Products.

9. Import Permits

9.1. Types of Permits

9.1.1 An import permit issued by DFATD is required for every shipment of powdered whey covered by this Notice to enter Canada. For a given shipment, importers may either present a shipment-specific import permit or invoke the appropriate General Import Permit (GIP).

9.2. Shipment-Specific Import Permits

9.2.1. Shipment-specific import permits are normally issued on demand to allocation holders up to the amount of their allocation under Canada’s powdered whey TRQ. Shipments entering Canada under a shipment-specific import permit can normally do so at the within access rate of duty.

9.2.2. To claim the within access rate of duty for a shipment, the importer must present the shipment-specific import permit to CBSA at the time of final accounting.

9.2.3. For a shipment-specific import permit to be considered valid, the name on the permit must match exactly the name of the importer on CBSA’s B3 Customs entry and related documents at time of final accounting. Furthermore, the quantity on the permit must be the same as the net quantity on the Customs invoice. It is incumbent on the party granted the permit to ensure that a permit application is made in the name of the importer of record and includes the correct quantity. Questions about the proper procedures to fill out customs entry documents should be addressed to local CBSA officials.

9.3. General Import Permits

9.3.1. The GIP that applies for powdered whey is General Import Permit No. 100 – Eligible Agricultural Goods. There is no limit to the quantities of powdered whey that may enter Canada under the GIP; however, such imports will be subject to the higher over access rate of duty.

9.3.2. It should be noted that shipment-specific import permits will not be issued for shipments already imported into Canada under the authority of the GIP, regardless of the importer's allocation.

9.4. How to Apply for a Permit

9.4.1. Information about the permit application process, including information about fees, the monthly billing system, and information required from applicants, is available on the DFATD website: Applying for an Import Permit.

10.4.2. Importers that wish to apply for an import permit are required to submit Form EXT1466, "Application for Permit", which can be obtain on the DFATD website (a paper copy will be provided upon request): Application for Import/Export Permit.

10. Contact Us

10.1. Names and direct phone numbers for TRQ manager(s), permit officer(s), and the Help Desk are available on the DFATD website: Contact Us.

10.2. For directory assistance, you may call 343-203-6820.