ARCHIVED – Notice to Importers

Powdered Whey (Item 125.1 on the Import Control List)

Serial No. 897
Date: May 1, 2017

This Notice replaces Notice to Importers No. 836 dated June 17, 2013, 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 Global Affairs Canada.

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, and return 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
• List of Appendices:
  • Appendix 1 - Information concerning related persons

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1. Purpose

1.1. The purpose of this Notice is:

• to set out the policies and practices pertaining to the administration of Canada’s TRQ for powdered whey;
• to invite applications for allocations under the TRQ for the next quota year; and
• 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 Global Affairs Canada, 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:

• 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.
• 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:

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

4.3. All import allocations expire at the end of each allocation year and all applicants interested in receiving an import allocation must reapply each year.

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 Global Affairs Canada.

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 June 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 Global Affairs Canada. The name and mailing address of the powdered whey quota manager can be obtained on the Global Affairs Canada website, under Contact Us.

6.3. Applications sent by EMAIL should be sent to dairy-laitier@international.gc.ca. Applicants sending their application by email should be prepared to present the original version of their application at Global Affairs Canada’s request. Failure to do so may lead to the cancellation of any allocation issued pursuant to the application and/or cancellation of associated permits.

6.4. For legibility reason, applications sent by facsimile will not be accepted.

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

6.6. The declaration in the application form allows Global Affairs Canada access to any information in the files of Agriculture and Agri-Food Canada or the Canadian Food Inspection Agency pertaining to the applicant in relation to the application for an import allocation or to subsequent applications for, or concerning the use of, import permits. Normally, applicants are informed of any such requests for information.

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-served 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 Global Affairs Canada website at Controlled Products – Agriculture - Dairy Products.

9. Import Permits

9.1. Types of Permits

9.1.1. An import permit issued by Global Affairs Canada 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. Shipment-specific import permits will not normally be issued retroactively for shipments that have already been imported into Canada, including under the authority of a GIP, regardless of the importers allocation.

9.2.4. 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.

9.4. How to Apply for a Permit

9.4.1. Information about the permit application process, including what is required to apply for a permit, fees, and the monthly billing system is available on the Global Affairs Canada website: Applying for an Import 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 Global Affairs Canada website: Contact Us.

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