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Notice to Importers

Item 125.1 - Powdered Whey

Serial No. 814
Date: June 11, 2012

Table of contents

1.0 Purpose

1.1 The purposes of this Notice are:

  1. to inform importers of the Minister's policies and practices respecting the administration of the 3,198,000 kilogram tariff rate quota (TRQ) for powdered whey. It should be read with the Import Allocation Regulations and the Import Permit Regulations. Where elements of the present Notice augment these Regulations, those elements are to be read as expressions of the Minister's normal practices and procedures; and
  2. to invite applications for quota shares of the 3,198,000 kilogram powdered whey TRQ available for allocation for the period August 1, 2012 to July 31, 2013.

2.0 Coverage

2.1 This Notice replaces Notice to Importers No. 789 dated May 19, 2011. It refers to Item 125.1 of the Import Control List (ICL), powdered whey falling under tariff item No. 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.

2.2 This Notice should be read in conjunction with Notice to Importers No. 803 dated October 14, 2011, which explains the administration of supplementary imports for dairy products.

2.3 Importers who require a determination as to whether the product they intend to import is within the scope of this Notice may contact the Canada Border Services Agency, Trade Programs and CARM Directorate at 613-957-1468, fax: 613-952-3971.

3.0 Duration

3.1 This Notice will remain valid until July 31, 2013.

4.0 Authority

4.1 Each of the products covered by this Notice was added to the Import Control List (ICL) pursuant to paragraphs 5(1)(a), (b), (d) and (e) and sections 5.3 of the Export and Import Permits Act(EIPA) in order to implement a Canadian commitment under the World Trade Organization (WTO) Agreement on Agriculture.

4.2 Under TRQs, imports are subject to lower "within access commitment" rates of duty up to a predetermined limit (i.e., until the import access quantity has been reached); imports over this limit are subject to higher "over access commitment" rates of duty. Under section 6.2 of the EIPA, the Minister may: a) determine an import access quantity allowed entry at the low rate of duty; b) establish a method of allocating the import access quantity; and c) issue an import allocation to any resident of Canada who applies for an allocation, subject to the regulations and any terms and conditions the Minister may specify in the allocation. Also pursuant to section 6.2 of the EIPA, the Minister may consent to the transfer of import allocations. Having established an import access quantity, the Minister shall, under subsection 8.3(1) of the EIPA, issue import permits to allocation holders that apply for permits, up to the limit of that quantity, subject to compliance and application of regulations made under section 12 of the EIPA. These permits shall entitle the goods to which they apply to be subject to lower within access commitment rates of duty. Subsection 8.3(3) allows the Minister to issue permits in excess of the access quantity.

4.3 Pursuant to subsection 6 (f) of the Import Allocation 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.

4.4 Pursuant to subsection 10.(1) of the EIPA, the Minister may amend, suspend, cancel or re-instate any permit or import allocation issued or granted under the Act.

5.0 Size and Duration of the Powdered Whey TRQ for 2012-2013

5.1 The powdered whey TRQ for 2012-2013 is set at 3,198,000 kg and extends from August 1, 2012 to July 31, 2013 inclusive.

6.0 Allocation of the Powdered Whey TRQ for 2012-2013

6.1 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. Specifically:

  1. Allocations shall be made first to users (i.e., processors/further processors) of specialty-type wheys, such as 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.
  2. 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.
  3. In this regard, companies are requested to provide the following information in support of their application:
    1. Company profile, including the names of affiliated (i.e., related) companies;
    2. Type of powdered whey for which an allocation is being requested;
    3. Quantity requested; and,
    4. Description of product(s) being manufactured and ratio of imported ingredients for use in their production (e.g., product formulations).

7.0 Under-Utilization Penalty and Return Policy

7.1 A company that uses less than 95 per cent of its allocation in any one year may receive an allocation in the next year that reflects the actual level of use.

7.2 A company shall not be allowed to transfer quota to another user. However, quota holders may return to the Trade Controls Policy Division any unused powdered whey quota issued to them for 2012-2013 on or before February 28, 2013. Quota returned to the Trade Controls Policy Division on or before the above deadline will not be considered as unused allocation for purposes of administering the under-utilization penalty in section 7.1. Returned quota will be made available to eligible applicants on a first-come, first-served basis.

8.0 Related Persons

8.1 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 is asked to provide a list of "related persons" (see definition of a "related persons" set out in Appendix 1).

8.2 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 made by Foreign Affairs and International Trade Canada (DFAIT).

9.0 Supplementary Imports

9.1 The Minister may, at his discretion, authorize imports of powdered whey in excess of the 3,198,000 kg import access quantity, in particular when the importation of these products is required to meet Canadian market needs.

9.2 Requests for authorization for supplementary imports may be submitted to Ms. Lynn Matthew at the address indicated in section 10.2 below. In deciding whether to issue a supplementary permit, the Minister will consider, amongst other criteria, the availability of like or directly substitutable products in the Canadian market.

10.0 Application for Shares of the Powdered Whey TRQ

10.1 Applicants are to provide full details in support of the quota share request, using the application form attached in Appendix 2. All applications must be fully completed and returned by July 20, 2012.

10.2 Applications sent by MAIL or COURIER should be addressed to:

Ms. Lynn Matthew
Trade Controls Policy Division (TIC)
Foreign Affairs and International Trade Canada
125 Sussex Drive
Ottawa, Ontario
K1A 0G2

10.3 Applications sent by facsimile will not be accepted. Only original applications will be accepted.

10.4 Applications postmarked after July 20, 2012, 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).

10.5 Unless otherwise specified by the applicant, officials of Foreign Affairs and International Trade Canada communicate with an EIPA authorization applicant in the official language of Canada which the applicant has used on its application.

11.0 Import Permit Issuance

11.1 Import permits are issued, normally, pursuant to an import authorization and are required for each shipment of powdered whey falling within tariff Nos. 0404.10.21 or 0404.10.22 in the List of Tariff Provisions set out in the Schedule to the Customs Tariff. Importers may either invoke General Import Permit (GIP) No. 100 - Eligible Agricultural Goods, a copy of which is available on request, or present an import permit issued to their firm for that shipment (specific import permit), in order to clear customs. Those citing the GIP will be authorized to import unlimited quantities of powdered whey, but such imports will be subject to the higher over-access commitment rate of duty. Those presenting a specific import permit to the Canada Border Services Agency at the time of final accounting may enter their shipments at the lower within access commitment rate of duty. Note: Specific import permits will not be issued for shipments already imported into Canada under the authority of the General Import Permit, regardless of the importer's TRQ allocation.

11.2 In accordance with the Import Permit Regulations, the procedures for receiving applications for import permits are as follows:

  1. When requesting an import permit an applicant must submit a completed Form EXT-1466, "Application for Permit" (a copy of which is attached as Appendix 3).
  2. A description of the process of applying for a permit is attached as Appendix 4, including information about fees, the monthly billing system and information required from applicants. All import permits are issued either (i) through an on-line automated system in the offices of certain customs brokers in major centres across Canada or (ii) in the offices of Foreign Affairs and International Trade Canada.

12.0 Name on the Permits

12.1 Please note that the name on the “specific import permit” must match exactly the name of the importer on Canada Border Services Agency's B3 Customs entry and related documents at time of final accounting. Where the name on the import permit and the name of the importer on the B3 is not the same entity, the permit will be declared invalid. It is incumbent on the party granted an import authorization to ensure that applications for permits are made in the name of the importer of record. Questions about the proper procedures to fill out Customs entry documents should be addressed to local Canada Border Services Agency's officials.

13.0 Permit fees

13.1 A fee will be levied for each permit or certificate issued in accordance with the Export and Import Permits and Certificates Fees Order(Notice to Importers No. 508, dated May 16, 1995).

14.0 Further information

14.1 Enquiries about import allocations may be addressed to:

Ms. Lynn Matthew
Tel: 613-944-1807
Fax: 613-996-0612

(Address as indicated in paragraph 10.2)

14.2 Enquiries about permit issuance and utilization of import allocations may be addressed to:

Mrs. Adèle Brisson
Tel: 613-995-8104
Fax: 613-996-0612

(Address as indicated in paragraph 10.2)

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