01-8334. Barry Callebaut Usa, Incorporated, Van Leer Division, Jersey City, New Jersey; Notice of Negative Determination on Remand

The United States Court of International Trade (USCIT) granted the Secretary of Labor's motion for a voluntary remand for further investigation in Former Employees of Barry Callebaut v. Herman, United States Secretary of Labor, No. 00-05-00202.

The Department's initial denial of Trade Adjustment Assistance (TAA) for the workers producing chocolate and ingredients at Barry Callebaut Usa, Inc., was based on the finding that criterion (3) of the group eligibility requirements of section 222 of the Trade Act of 1974, as amended, was not met. The decision was signed on December 12, 1999, and published in the Federal Register on December 28, 1999 (64 FR 72691).

The Department's initial denial of North American Free Trade Agreement-Transitional Adjustment Assistance (NAFTA-TAA) for the same worker group, was based on the finding that criteria (3) and (4) of paragraph (a)(1) of the group eligibility requirements of Section 250 of the Trade Act of 1974, as amended, were not met. The notice was issued on November 15, 1999, and published in the Federal Register on February 4, 2000 (65 FR 5691).

The petitioners request for reconsideration of the Department's negative determinations for TA-W-37,000 and NAFTA-3402, resulted in a negative determination on the application, which was issued on March 6, 2000, and published in the Federal Register on March 15, 2000 (65 Fed. Reg. 13991).

On remand, the Department contacted officials of Barry Callebaut, Usa, Incorporated, to obtain additional information to address the petitioners claims regarding the shift in production and machinery from the Jersey City, New Jersey plant to Canada. The Department was informed that the contact person identified in the petitions, and in the request for reconsideration, was no longer employed with the company. The Department did, however, locate the individual, who did not provide any new information regarding the transfer of production and the disposition of the machinery at the Jersey City plant.

The Workers of Barry Callebaut Usa, Incorporated, Van Leer Division, Jersey City, New Jersey, producted chocolate, sugar-free chocolate and snaps. The workers also produced chocolate liquor, cocoa butter and cocoa cake, which are ingredients used to make the finished products. This new information with respect to the cocoa cake differs from the initial investigation finding that cocoa powder was produced at the plant. Barry Callebaut officials report that cocoa cake is further processed to make cocoa powder. Other new information obtained from the company show that the workers producing chocolate, sugar-free chocolate and snaps are separately identifiable from the workers producing chocolate liquor, cocoa butter and cocoa cake.

Findings on remand revealed that the vast majority of chocolate, sugar-free chocolate and snap production at Jersey City was shifted to other Barry Callebaut domestic locations. A negligible amount of these articles was shifted from the subject firm plant to Canada. Company imports of chocolate, sugar-free chocolate and snap are insignificant.

Findings on remand with respect to the chocolate liquor, cocoa butter and cocoa cake produced in Jersey City, show a shift in production to other domestic locations of Barry Callebaut. A negligible amount of these articles was shifted to Canada. The company data for 1998 and 1999, show that imports of chocolate liquor are negligible. The company imports cake but did increase their purchases from 1998 to 1999. The company was significantly increased their domestic production of cake during the relevant period. Company imports of cocoa butter account for a negligible portion of the company's domestic needs.

On remand, Barry Callebaut submitted data for 1998 and 1999, which show increases in domestic sales and production, on a company-wide basis, of finished products and the ingredients.

The domestic company locations producing candy and ingredients are located in St. Albans, Vermont, Pennsauken, New Jersey and Piscataway, New Jersey, with the headquarters for these locations in St. Hyacinthe, Quebec, Canada.

Other findings on remand show that after the purchase and analysis of production at the Jersey City factory, Barry Callebaut officials determined the equipment and machinery were obsolete and not cost efficient. Some equipment used for the production of specific panning products was shifted to the Piscataway, New Jersey plant. The vast majority of other equipment and machinery was shifted to the company's domestic and Canadian locations to be used to produce product lines that had not been produced at the subject plant. Some equipment was for sale or used as a write-off.

Conclusion

After reconsideration on remand, I affirm the original notices of negative determination of eligibility to apply for adjustment assistance and NAFTA-TAA for workers and former workers of Barry Callebaut Usa, Inc., Van Leer Division, Jersey City, New Jersey.

Signed at Washington, D.C. this 22nd day of March 2001.

Linda G. Poole,

Certifying Officer, Division of Trade Adjustment Assistance.