Public Comment and Response on Proposed Final Judgment, 18564-18570 [E8-6875]
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for the proper performance of the
functions of the agency, including
whether the information will have
practical utility;
—Evaluate the accuracy of the agencies
estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used;
—Enhance the quality, utility, and
clarity of the information to be
collected; and
—Minimize the burden of the collection
of information on those who are to
respond, including through the use of
appropriate automated, electronic,
mechanical, or other technological
collection techniques or other forms
of information technology, e.g.,
permitting electronic submission of
responses.
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Overview of This Information
Collection
(1) Type of Information Collection:
Extension of a currently approved
collection.
(2) Title of the Form/Collection:
Firearms Transaction Record Part II—
Intrastate Non-Over-the-Counter.
(3) Agency form number, if any, and
the applicable component of the
Department of Justice sponsoring the
collection: Form Number: ATF F 4473
Part II (5300.9). Bureau of Alcohol,
Tobacco, Firearms and Explosives.
(4) Affected public who will be asked
or required to respond, as well as a brief
abstract: Primary: Individuals or
households. Other: Business or other
for-profit. The form is used to determine
the eligibility of a person to receive a
firearm from a Federal firearms licensee
and to establish the identity of the
buyer. The form is also used in law
enforcement investigations to trace
firearms or to confirm criminal activity.
(5) An estimate of the total number of
respondents and the amount of time
estimated for an average respondent to
respond: It is estimated that 500
respondents will complete a 20 minute
form.
(6) An estimate of the total public
burden (in hours) associated with the
collection: There are an estimated 165
annual total burden hours associated
with this collection.
If additional information is required
contact: Lynn Bryant, Department
Clearance Officer, Policy and Planning
Staff, Justice Management Division,
Department of Justice, Patrick Henry
Building, Suite 1600, 601 D Street, NW.,
Washington, DC 20530.
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Dated: April 1, 2008.
Lynn Bryant,
Department Clearance Officer, PRA, U.S.
Department of Justice.
[FR Doc. E8–7088 Filed 4–3–08; 8:45 am]
BILLING CODE 4410–FY–P
DEPARTMENT OF JUSTICE
Antitrust Division
Public Comment and Response on
Proposed Final Judgment
Pursuant to the Antitrust Procedures
and Penalties Act, 15 U.S.C. 16(b)–(h),
the United States hereby publishes
below the comment received on the
proposed Final Judgment in United
States v. Vulcan Materials Company
and Florida Rock Industries, Inc., No.
1:07–CV–02044, which was filed in the
United States District Court for the
District of Columbia on November 13,
2007, together with the response of the
United States to the comment.
Copies of the comment and the
response are available for inspection at
the Department of Justice Antitrust
Division, 325 Seventh Street, NW.,
Room 215, Washington, DC 20530,
(telephone (202) 514–2481), and at the
Office of the Clerk of the United States
District Court for the District of
Columbia, 333 Constitution Avenue,
NW., Washington, DC 20001. Copies of
any of these materials may be obtained
upon request and payment of a copying
fee.
J. Robert Kramer II,
Director of Operations, Antitrust Division.
United States District Court For the
District of Columbia
United States of America, Plaintiff, v.
Vulcan Materials Company and Florida
Rock Industries, Inc., Defendants.
Case No.: 1:07–CV–02044.
Judge: Sullivan, Emmet G.
Deck Type: Antitrust.
Date Stamp:
Plaintiff United States’ Response To
Public Comments
Pursuant to the requirements of the
Antitrust Procedures and Penalties Act,
15 U.S.C. 16(b)–(h) (‘‘APPA’’ or
‘‘Tunney Act’’), the United States
hereby responds to the one public
comment received regarding the
proposed Final Judgment in this case.
After careful consideration of the
comment, the United States continues to
believe that the proposed Final
Judgment will provide an effective and
appropriate remedy for the antitrust
violations alleged in the Complaint. The
United States will move the Court for
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entry of the proposed Final Judgment
after the public comment and this
Response have been published in the
Federal Register, pursuant to 15 U.S.C.
16(d).
On November 13, 2007, the United
States filed the Complaint in this matter
alleging that the proposed acquisition of
Florida Rock Industries, Inc. (‘‘Florida
Rock’’) by Vulcan Materials Company
(‘‘Vulcan’’) would violate Section 7 of
the Clayton Act, 15 U.S.C. 18.
Simultaneously with the filing of the
Complaint, the United States filed a
proposed Final Judgment and a Hold
Separate Stipulation and Order
(‘‘HSSO’’) signed by plaintiff and the
defendants, consenting to the entry of
the proposed Final Judgment after
compliance with the requirements of the
Tunney Act, 15 U.S.C. 16. Pursuant to
those requirements, the United States
filed its Competitive Impact Statement
(‘‘CIS’’) in this Court, also on November
13, 2007; published the proposed Final
Judgment and CIS in the Federal
Register on December 4, 2007, see
United States v. Vulcan Materials
Company and Florida Rock Industries,
Inc., 72 FR 68189; and published
summaries of the terms of the proposed
Final Judgment and CIS, together with
directions for the submission of written
comments relating to the proposed Final
Judgment, in The Washington Post for
seven days beginning on December 16,
2007 and ending on December 22, 2007.
The 60-day period for public comments
ended on February 20, 2008, and one
comment was received as described
below and attached hereto.
I. The Investigation and Proposed
Resolution
On February 19, 2007, Vulcan and
Florida Rock entered into an agreement
for Vulcan to acquire Florida Rock in a
cash-and-stock transaction. For the next
nine months, the United States
Department of Justice (‘‘Department’’)
conducted an extensive, detailed
investigation into the competitive
effects of the Vulcan/Florida Rock
transaction. As part of this investigation,
the Department obtained substantial
documents and information from the
merging parties and issued six Civil
Investigative Demands to third parties.
The Department received and
considered more than 130 boxes of hard
copy material and over 280,000
electronic files. More than 130
interviews were conducted with
customers, competitors, and other
individuals with knowledge of the
industry. The investigative staff
carefully analyzed the information
provided and thoroughly considered all
of the issues presented. The Department
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considered the potential competitive
effects of the transaction on coarse
aggregate sold in a number of different
geographic areas, obtaining information
about this product and these areas from
customers, competitors, and other
knowledgeable parties. The Department
concluded that the combination of
Vulcan and Florida Rock likely would
lessen competition in the production,
distribution and sale of coarse aggregate
in eight different geographic markets.
Coarse aggregate is crushed stone
produced at quarries and used for such
things as road base and the production
of ready mix concrete and asphalt.
There are no reliable substitutes for
coarse aggregate, and to the extent that
any substitutes exist they are already
being used by customers to the fullest
extent possible, and their use cannot be
increased in response to an increase in
the price of coarse aggregate. A small
but significant increase in price would
not likely cause coarse aggregate
consumers to switch products or
otherwise reduce their usage of coarse
aggregate so as to make the price
increase unprofitable.
The eight separate geographic markets
in which Vulcan’s acquisition of Florida
Rock would lessen competition
substantially are: Northwest Atlanta,
West Atlanta, Southwest Atlanta, South
Atlanta, Southeast Atlanta, Georgia;
Columbus, Georgia; Chattanooga,
Tennessee; and South Hampton Roads,
Virginia. In each market, certain Vulcan
and Florida Rock quarries competed
with each other, and usually also with
one or two other companies, to serve
customers in that market, and customers
with plants or jobs within that market
were not able to turn to other suppliers
because their quarries were too far away
and their hauling costs were too great.
As explained more fully in the
Complaint and CIS, the acquisition of
Florida Rock by Vulcan would have
substantially increased concentration
and lessened competition in the
production, distribution and sale of
coarse aggregate in each of the eight
affected geographic markets. In the
affected markets, the acquisition would
have reduced the number of suppliers
from four to three, from three to two, or
from two to one; would have eliminated
competition between Vulcan and
Florida Rock; and would have increased
the likelihood that Vulcan would
unilaterally increase the price of coarse
aggregate to a significant number of
customers. In certain markets, the
acquisition also would have facilitated
coordination among the remaining
coarse aggregate suppliers. In every
affected market, it was likely that the
acquisition would lead to higher prices.
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Therefore, the Department filed its
Complaint alleging competitive harm in
the coarse aggregate product market in
each of the eight affected geographic
markets, and sought a remedy that
would ensure that such harm is
prevented. For each of the eight affected
geographic markets, the proposed Final
Judgment requires the divestiture of a
quarry serving that market, and in the
case of South Hampton Roads also
requires the divestiture of one
distribution yard.
The proposed Final Judgment in this
case is designed to preserve competition
in the production, distribution, and sale
of coarse aggregate in each of the eight
affected geographic markets. The
proposed Final Judgment requires the
divestiture of sufficient assets to prevent
the increase in concentration that
resulted from the combination of Vulcan
and Florida Rock in each affected
market.
II. Summary of Public Comment and
Response
During the 60-day public comment
period, the United States received only
one comment, from the North Lamar
County Citizens Association
(‘‘NLCCA’’), relating primarily to a
quarry located in that county.1 No
comment was received from any coarse
aggregate customer located in any of the
eight geographic markets, or anywhere
else, or from any competitor selling
coarse aggregate to such customers.
Upon review, the United States believes
that nothing in the comment warrants a
change in the proposed Final Judgment
or is sufficient to suggest that the
proposed Final Judgment is not in the
public interest. The comment asserts
that the relief obtained by the United
States in the Southeast Atlanta market is
inadequate because it did not require
the divestiture of Florida Rock’s Lamar
County quarry along with the
divestiture of Vulcan’s Butts County
quarry. The United States addresses this
concern below and explains how the
remedy is appropriate.2
1 The NLCCA Comment came in two parts, the
primary comment by letter dated January 12, 2008,
and a supplement by letter dated January 14, 2008.
2 The comment also asserts that the quarry
identified in the complaint as belonging to one of
the defendants’ competitors in the South Atlanta
market, and located in College Park, Georgia, does
not appear in the Mining Directory of Georgia put
out by the Georgia Department of Natural
Resources, and that the Association is ‘‘unaware of
any such quarry.’’ The United States does not know
why the College Park quarry does not appear in the
list of quarries shown on the document attached by
the Association. However, it does appear on the
Georgia Department of Transportation’s Web site, at
https://wwwdot.state.ga.us/dotJconstruction
Imaterials-researchfDocuments/Pdf/qpl/qpl02.pdf.
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A. Summary of the Comment Submitted
by the NLCCA
As the President of the organization,
Jonathan P. Sexton, states in the
NLCCA’s comment, Department
attorneys spoke with Mr. Sexton during
the course of the investigation, and the
United States was therefore aware of the
Association’s concerns about the Lamar
quarry.
In its comment, the NLCCA notes that
the proposed Final Judgment does not
mention the Lamar quarry, which
according to the organization received
the necessary permits for its operation
only on November 9, 2007, four days
before the filing of the Complaint and
proposed Final Judgment. The NLCCA
asserts that Vulcan ‘‘plans to serve
southeast Atlanta with not only the
Butts County Quarry but the huge
588.50 [acre] Lamar County Quarry,’’
and that allowing Vulcan to continue to
operate the Lamar County Quarry
‘‘effectively nullifies the effect on
competition of the divesting of the Butts
County Quarry.’’ The comment states
that ‘‘the Lamar County Quarry is
centered between the Butts County
Quarry and the Griffin Quarry,’’ and that
there is ‘‘no major competition in this
area of South and Southeastern
Atlanta.’’ The NLCCA concludes by
arguing that the proposed Final
Judgment (the ‘‘Consent Agreement’’) is
‘‘flawed and in error’’ because of its
‘‘failure to address competition in light
of the Lamar County Quarry,’’ and that
the defendants ‘‘should be required to
divest of both the Butts County Quarry
and the Lamar County Quarry.’’
B. Response of United States to the
NLCCA’s Comment
The United States has carefully
considered the NLCCA’s comment, but
disagrees that failure to require the
divestiture of the Lamar quarry will
have any adverse effect on competition.
As noted in the comment, the three
quarries nearest to one another in the
area around Lamar County are: (1) The
Griffin Quarry, which had been owned
by Florida Rock; (2) the Lamar County
quarry project, to the southeast of the
Griffin quarry, which was being
developed by Florida Rock; and (3) the
Butts County quarry project, still further
to the east, which was being developed
by Vulcan. The key fact is that the
Griffin quarry and the Lamar County
project were both owned by Florida
Rock, and there would have been no
competition between these two quarries
whether or not Florida Rock had been
acquired by Vulcan. The Butts County
project, on the other hand, was being
developed by Vulcan, and this quarry
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thus would have provided independent
competition to the Florida Rock quarries
in the area but for the acquisition. It is
this competition—the competition
provided by the Butts County quarry—
that would have been removed by
Vulcan’s acquisition of Florida Rock.
And it is this competition that the Final
Judgment preserves by requiring that the
Butts quarry project be divested.
Requiring divestiture of the Lamar
County quarry as well as the Butts
quarry would go well beyond what is
needed to restore competition in the
Southeast Atlanta market, which is why
the United States did not seek to have
this divestiture included in the Final
Judgment.
III. Conclusion
The issues raised in the public
comment were among the many
considered during the extensive and
thorough investigation. The United
States has determined that the proposed
Final Judgment provides an effective
and appropriate remedy for the antitrust
violations alleged in the Complaint, and
is therefore in the public interest. The
United States will move this Court to
enter the proposed Final Judgment after
the comment and response are
published. Respectfully submitted,
Dated: March 18, 2008.
Robert W. Wilder,
Attorney.
U.S. Department of Justice,
Antitrust Division,
Litigation II Section,
1401 H Street, NW., Suite 3000,
Washington, DC 20530,
Telephone: (202) 307–0924.
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Certificate of Service
I, Robert W. Wilder, hereby certify
that on the 18th day of March, 2008, I
caused a copy of the foregoing Plaintiff
United States’ Response to Public
Comments with attachments to be
mailed, by U.S. mail, postage prepaid, to
the attorneys listed below:
Counsel for Defendant Vulcan
Materials Company: Joseph D. Larson,
Esquire, Wachtell, Lipton, Rosen & Katz
LLP, 51 West 52nd Street, New York,
New York 10019, (212) 403–1000,
JDLarson@wlrk.com.
Counsel for Defendant Florida Rock
Industries, Inc.: Laura A. Wilkinson,
Esquire, Weil, Gotshal & Manges LLP,
1300 I Street, NW., Suite 900,
Washington, DC 20005, (202) 682–7005,
laura.wilkinson@weil.com.
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North Lamar County Citizens
Association: Jonathan P. Sexton,
President, P.O. Box 516, Milner, Georgia
30257, (770) 474–9335,
jonsclerk@yahoo.com.
North Lamar County Citizens
Association P.O. Box 516, Milner,
Georgia 30257. ‘‘Quality Growth,
Quality Life’’
January 12, 2008.
Via Certified Mail Return Receipt Na
1555474410048138605.
Maribeth Petrizzi, Chief, Litigation H
Section, Antitrust Division, U.S.
Department of Justice, 1401 H Street,
NW., Suite 3000, Washington, DC
20530.
Re: USA DOJ v. Vulcan Materials
Company and Florida Rock Industries,
Inc., Case: I:07–cv–02044.
Dear Ms. Petrizzi,
My name is Jonathan Sexton. I am
President of the North Lamar County
Citizens Association. Please consider
this to be our comment pursuant to the
Tunney Act regarding the proposed
consent decree and the merger of
Vulcan Materials Company (Vulcari)
and Florida Rock Industries, Inc. (FRI).
I read the complaint and the impact
with some interest. Let me bring to your
attention a major issue that was left out
of the impact statement with respect to
the anti-competitive effect of this merger
on the South Atlanta and Southeast
Atlanta markets.
In examining the proposed consent
agreement with respect to the South
Atlanta and Southeast Atlanta markets,
there has been a glaring omission. In
paragraph 2(B)(2)(d) and (e) there is no
mention of the FRI quarry in
development in Lamar County. This
quarry is only 9.89 miles from the
Vulcan Butts County quarry that is
mentioned and is being divested. The
Lamar County Quarry is 23 miles from
the FRI Griffin Quarry and 29 miles
from the Vulcan Stockbridge Quarry.
We know that the DOJ is aware of this
quarry as I have personally had
conversations with Helena Jolly
(Gardner) regarding this specific quarry.
The quarry received Georgia EPD
surface, air, and water permits on
November 9, 2007. (A copy of the
permits are attached as Exhibit A). This
quarry encompasses 588.50 acres in
Lamar County and has been described
by FRI in public hearings as ‘‘one of the
best deposits of granite in the State of
Georgia outside of Stone Mountain.’’
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As discussed in the impact statement,
the issue is competition and competitive
pricing in the aggregate industry is
typically determined by plant and
service locations. Vulcan plans to serve
southeast Atlanta with not only the
Butts County Quarry but the huge
588.50 Lamar County Quarry. Allowing
Vulcan and FRI to operate the Lamar
County Quarry effectively nullifies the
effect on competition of the divesting of
the Butts County Quarry. Vulcan will
have effectively ringed in and roped off
the southeast Atlanta area from
competition if it is allowed to operate
this large Lamar County Quarry.
Attached as Exhibit 2 is a map of
quarries in the area. Flag A is the Butts
County Quarry. Flag B is the Lamar
County Quarry. Flag R is the Griffin
Quarry. All of the blue flags expect for
A are competitors. All of the orange
flags are Vulcan and FRI quarries. As
you can see, the Lamar County Quarry
is centered between the Butts County
Quarry and the Griffin Quarry. There is
no major competition in this area of
South and Southeast Atlanta.
Page 2, January 12, 2008.
There is also an error in paragraph 24
of the complaint and impact statement.
Paragraph 24 of the complaint and
paragraph 2(B)(2)(d) of the Impact
Statement refer to an unnamed
competitors quarry located in College
Park, Georgia that acts as a competitor
to Defendants. According to the Mining
Directory of Georgia, 21st Edition,
Georgia Department of Natural
Resources, Environmental Protection
Division, there is no such competitor’s
quarry in College Park, Georgia. We are
unaware of any such quarry.
Clearly, failure to address competition
in light of the Lamar County Quarry
makes the Consent Agreement flawed
and in error with respect to decreasing
competition and increasing prices in
South and Southeast Atlanta.
Defendants should be required to divest
of both the Butts County Quarry and the
Lamar County Quarry.
Sincerely,
Jonathan P. Sexton
President, North Lamar County Citizens
Association
Cc: Honorable Emmet G. Sullivan,
Judge, United States District Court for
the District of Columbia
BILLING CODE 4410–11–P
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Maps appearing here in the comment
are illegible upon reprinting. The maps
are available at the Department of
Justice Antitrust Division, 325 Seventh
Street, NW., Room 215, Washington, DC
20530, (202) 514–2481, and at the Office
of the Clerk of the United States District
Court for the District of Columbia, 333
Constitution Avenue, NW., Washington,
DC 20001.
made application by renewal to the
Drug Enforcement Administration
(DEA) to be registered as a bulk
manufacturer of the basic classes of
controlled substances listed in
schedules I and II:
Drug
Schedule
Tetrahydrocannabinols (7370) .....
Methylphenidate (1724) ................
Codeine (9050) .............................
Dihydrocodeine (9120) .................
Oxycodone (9143) ........................
Hydromorphone (9150) ................
Hydrocodone (9193) .....................
Oripavine (9330) ...........................
Thebaine (9333) ...........................
Oxymorphone (9652) ...................
Noroxymorphone (9668) ..............
Fentanyl (9801) ............................
I
II
II
II
II
II
II
II
II
II
II
II
controlled substances listed in
schedules I and II:
Drug
Dihydromorphine (9145) ...............
Amphetamine (1100) ....................
Methylphenidate (1724) ................
Amobarbital (2125) .......................
Pentobarbital (2270) .....................
Secobarbital (2315) ......................
Glutethimide (2550) ......................
Codeine (9050) .............................
Oxycodone (9143) ........................
Hydromorphone (9150) ................
Hydrocodone (9193) .....................
Methadone (9250) ........................
Methadone intermediate (9254) ...
Dextropropoxyphene, bulk (nondosage forms) (9273).
Morphine (9300) ...........................
Oxymorphone (9652) ...................
Schedule
I
II
II
II
II
II
II
II
II
II
II
II
II
II
North Lamar County Citizens
Association
P.O. Box 516, Milner, Georgia 30257.
‘‘Quality Growth, Quality Life’’
January 14, 2008.
Maribeth Petrizzi, Chief, Litigation II
Section, Antitrust Division, U.S.
Department of Justice, 1401 H Street
NW., Suite 3000, Washington, DC
20530.
Supplement To Comment
Re: USA DOJ v. Vulcan Materials
Company and Florida Rock Industries,
Inc., Case: I:07–cv–02044.
Dear Ms. Petrizzi,
After sending our comment I realized
there was no contact information
included. Accordingly, below is my
contact information. Also attached are
photos showing that FRI has already
begun working at the Lamar County
Quarry.
If you have any questions, please feel
free to call me.
Sincerely,
Jonathan P. Sexton
President, North Lamar County Citizens
Association
Contact: Jonathan P. Sexton.
Phone: 770–474–9335.
Fax: 770–474–7113.
E-mail: jonsclerk@yahoo.com.
Photographs appearing here in the
comment are illegible upon reprinting.
The photographs are available at the
Department of Justice Antitrust
Division, 325 Seventh Street, NW.,
Room 215, Washington, DC 20530, (202)
514–2481, and at the Office of the Clerk
of the United States District Court for
the District of Columbia, 333
Constitution Avenue, NW., Washington,
DC 20001.
The company plans to manufacture
the listed controlled substances in bulk
for conversion and sale to dosage form
manufacturers.
Any other such applicant and any
person who is presently registered with
DEA to manufacture such a substance
may file comments or objections to the
issuance of the proposed registration
pursuant to 21 CFR 1301.33(a).
Any such written comments or
objections being sent via regular mail
should be addressed, in quintuplicate,
to the Drug Enforcement
Administration, Office of Diversion
Control, Federal Register Representative
(ODL), Washington, DC 20537, or any
being sent via express mail should be
sent to Drug Enforcement
Administration, Office of Diversion
Control, Federal Register Representative
(ODL), 8701 Morrissette Drive,
Springfield, Virginia 22152; and must be
filed no later than June 3, 2008.
The company plans to manufacture
the listed controlled substances in bulk
for distribution to its customers.
Any other such applicant and any
person who is presently registered with
DEA to manufacture such substances
may file comments or objections to the
issuance of the proposed registration
pursuant to 21 CFR 1301.33(a).
Any such written comments or
objections being sent via regular mail
should be addressed, in quintuplicate,
to the Drug Enforcement
Administration, Office of Diversion
Control, Federal Register Representative
(ODL), Washington, DC 20537, or any
being sent via express mail should be
sent to Drug Enforcement
Administration, Office of Diversion
Control, Federal Register Representative
(ODL), 8701 Morrissette Drive,
Springfield, Virginia 22152; and must be
filed no later than June 3, 2008.
Dated: March 28, 2008.
Joseph T. Rannazzisi,
Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement
Administration.
[FR Doc. E8–7037 Filed 4–3–08; 8:45 am]
Dated: March 28, 2008.
Joseph T. Rannazzisi,
Deputy Assistant Administrator, Office of
Diversion Control, Drug Enforcement
Administration.
[FR Doc. E8–7039 Filed 4–3–08; 8:45 am]
BILLING CODE 4410–09–P
BILLING CODE 4410–09–P
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DEPARTMENT OF JUSTICE
DEPARTMENT OF JUSTICE
Drug Enforcement Administration
Executive Office for Immigration
Review
DEPARTMENT OF JUSTICE
Manufacturer of Controlled
Substances; Notice of Application
[OMB Number 1125–0003]
Drug Enforcement Administration
Pursuant to 1301.33(a) of Title 21 of
the Code of Federal Regulations (CFR),
this is notice that on March 10, 2008,
Siegfried (USA), Inc., Industrial Park
Road, Pennsville, New Jersey 08070,
made application by renewal to the
Drug Enforcement Administration
(DEA) to be registered as a bulk
manufacturer of the basic classes of
Agency Information Collection
Activities: Proposed Collection;
Comments Requested
ebenthall on PRODPC61 with NOTICES
BILLING CODE 4410–11–C
Manufacturer of Controlled
Substances; Notice of Application
Pursuant to 1301.33(a) of Title 21 of
the Code of Federal Regulations (CFR),
this is notice that on March 5, 2008,
Rhodes Technologies, 498 Washington
Street, Coventry, Rhode Island 02816,
VerDate Aug<31>2005
15:24 Apr 03, 2008
Jkt 214001
PO 00000
Frm 00081
Fmt 4703
Sfmt 4703
II
II
60-day notice of information
collection under review: fee waiver
request.
ACTION:
The Department of Justice (DOJ),
Executive Office for Immigration
E:\FR\FM\04APN1.SGM
04APN1
]]>Agencies
[Federal Register Volume 73, Number 66 (Friday, April 4, 2008)]
[Notices]
[Pages 18564-18570]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-6875]
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DEPARTMENT OF JUSTICE
Antitrust Division
Public Comment and Response on Proposed Final Judgment
Pursuant to the Antitrust Procedures and Penalties Act, 15 U.S.C.
16(b)-(h), the United States hereby publishes below the comment
received on the proposed Final Judgment in United States v. Vulcan
Materials Company and Florida Rock Industries, Inc., No. 1:07-CV-02044,
which was filed in the United States District Court for the District of
Columbia on November 13, 2007, together with the response of the United
States to the comment.
Copies of the comment and the response are available for inspection
at the Department of Justice Antitrust Division, 325 Seventh Street,
NW., Room 215, Washington, DC 20530, (telephone (202) 514-2481), and at
the Office of the Clerk of the United States District Court for the
District of Columbia, 333 Constitution Avenue, NW., Washington, DC
20001. Copies of any of these materials may be obtained upon request
and payment of a copying fee.
J. Robert Kramer II,
Director of Operations, Antitrust Division.
United States District Court For the District of Columbia
United States of America, Plaintiff, v. Vulcan Materials Company and
Florida Rock Industries, Inc., Defendants.
Case No.: 1:07-CV-02044.
Judge: Sullivan, Emmet G.
Deck Type: Antitrust.
Date Stamp:
Plaintiff United States' Response To Public Comments
Pursuant to the requirements of the Antitrust Procedures and
Penalties Act, 15 U.S.C. 16(b)-(h) (``APPA'' or ``Tunney Act''), the
United States hereby responds to the one public comment received
regarding the proposed Final Judgment in this case. After careful
consideration of the comment, the United States continues to believe
that the proposed Final Judgment will provide an effective and
appropriate remedy for the antitrust violations alleged in the
Complaint. The United States will move the Court for entry of the
proposed Final Judgment after the public comment and this Response have
been published in the Federal Register, pursuant to 15 U.S.C. 16(d).
On November 13, 2007, the United States filed the Complaint in this
matter alleging that the proposed acquisition of Florida Rock
Industries, Inc. (``Florida Rock'') by Vulcan Materials Company
(``Vulcan'') would violate Section 7 of the Clayton Act, 15 U.S.C. 18.
Simultaneously with the filing of the Complaint, the United States
filed a proposed Final Judgment and a Hold Separate Stipulation and
Order (``HSSO'') signed by plaintiff and the defendants, consenting to
the entry of the proposed Final Judgment after compliance with the
requirements of the Tunney Act, 15 U.S.C. 16. Pursuant to those
requirements, the United States filed its Competitive Impact Statement
(``CIS'') in this Court, also on November 13, 2007; published the
proposed Final Judgment and CIS in the Federal Register on December 4,
2007, see United States v. Vulcan Materials Company and Florida Rock
Industries, Inc., 72 FR 68189; and published summaries of the terms of
the proposed Final Judgment and CIS, together with directions for the
submission of written comments relating to the proposed Final Judgment,
in The Washington Post for seven days beginning on December 16, 2007
and ending on December 22, 2007. The 60-day period for public comments
ended on February 20, 2008, and one comment was received as described
below and attached hereto.
I. The Investigation and Proposed Resolution
On February 19, 2007, Vulcan and Florida Rock entered into an
agreement for Vulcan to acquire Florida Rock in a cash-and-stock
transaction. For the next nine months, the United States Department of
Justice (``Department'') conducted an extensive, detailed investigation
into the competitive effects of the Vulcan/Florida Rock transaction. As
part of this investigation, the Department obtained substantial
documents and information from the merging parties and issued six Civil
Investigative Demands to third parties. The Department received and
considered more than 130 boxes of hard copy material and over 280,000
electronic files. More than 130 interviews were conducted with
customers, competitors, and other individuals with knowledge of the
industry. The investigative staff carefully analyzed the information
provided and thoroughly considered all of the issues presented. The
Department
[[Page 18565]]
considered the potential competitive effects of the transaction on
coarse aggregate sold in a number of different geographic areas,
obtaining information about this product and these areas from
customers, competitors, and other knowledgeable parties. The Department
concluded that the combination of Vulcan and Florida Rock likely would
lessen competition in the production, distribution and sale of coarse
aggregate in eight different geographic markets.
Coarse aggregate is crushed stone produced at quarries and used for
such things as road base and the production of ready mix concrete and
asphalt. There are no reliable substitutes for coarse aggregate, and to
the extent that any substitutes exist they are already being used by
customers to the fullest extent possible, and their use cannot be
increased in response to an increase in the price of coarse aggregate.
A small but significant increase in price would not likely cause coarse
aggregate consumers to switch products or otherwise reduce their usage
of coarse aggregate so as to make the price increase unprofitable.
The eight separate geographic markets in which Vulcan's acquisition
of Florida Rock would lessen competition substantially are: Northwest
Atlanta, West Atlanta, Southwest Atlanta, South Atlanta, Southeast
Atlanta, Georgia; Columbus, Georgia; Chattanooga, Tennessee; and South
Hampton Roads, Virginia. In each market, certain Vulcan and Florida
Rock quarries competed with each other, and usually also with one or
two other companies, to serve customers in that market, and customers
with plants or jobs within that market were not able to turn to other
suppliers because their quarries were too far away and their hauling
costs were too great.
As explained more fully in the Complaint and CIS, the acquisition
of Florida Rock by Vulcan would have substantially increased
concentration and lessened competition in the production, distribution
and sale of coarse aggregate in each of the eight affected geographic
markets. In the affected markets, the acquisition would have reduced
the number of suppliers from four to three, from three to two, or from
two to one; would have eliminated competition between Vulcan and
Florida Rock; and would have increased the likelihood that Vulcan would
unilaterally increase the price of coarse aggregate to a significant
number of customers. In certain markets, the acquisition also would
have facilitated coordination among the remaining coarse aggregate
suppliers. In every affected market, it was likely that the acquisition
would lead to higher prices. Therefore, the Department filed its
Complaint alleging competitive harm in the coarse aggregate product
market in each of the eight affected geographic markets, and sought a
remedy that would ensure that such harm is prevented. For each of the
eight affected geographic markets, the proposed Final Judgment requires
the divestiture of a quarry serving that market, and in the case of
South Hampton Roads also requires the divestiture of one distribution
yard.
The proposed Final Judgment in this case is designed to preserve
competition in the production, distribution, and sale of coarse
aggregate in each of the eight affected geographic markets. The
proposed Final Judgment requires the divestiture of sufficient assets
to prevent the increase in concentration that resulted from the
combination of Vulcan and Florida Rock in each affected market.
II. Summary of Public Comment and Response
During the 60-day public comment period, the United States received
only one comment, from the North Lamar County Citizens Association
(``NLCCA''), relating primarily to a quarry located in that county.\1\
No comment was received from any coarse aggregate customer located in
any of the eight geographic markets, or anywhere else, or from any
competitor selling coarse aggregate to such customers. Upon review, the
United States believes that nothing in the comment warrants a change in
the proposed Final Judgment or is sufficient to suggest that the
proposed Final Judgment is not in the public interest. The comment
asserts that the relief obtained by the United States in the Southeast
Atlanta market is inadequate because it did not require the divestiture
of Florida Rock's Lamar County quarry along with the divestiture of
Vulcan's Butts County quarry. The United States addresses this concern
below and explains how the remedy is appropriate.\2\
---------------------------------------------------------------------------
\1\ The NLCCA Comment came in two parts, the primary comment by
letter dated January 12, 2008, and a supplement by letter dated
January 14, 2008.
\2\ The comment also asserts that the quarry identified in the
complaint as belonging to one of the defendants' competitors in the
South Atlanta market, and located in College Park, Georgia, does not
appear in the Mining Directory of Georgia put out by the Georgia
Department of Natural Resources, and that the Association is
``unaware of any such quarry.'' The United States does not know why
the College Park quarry does not appear in the list of quarries
shown on the document attached by the Association. However, it does
appear on the Georgia Department of Transportation's Web site, at
https://wwwdot.state.ga.us/dotJconstructionImaterials-
researchfDocuments/Pdf/qpl/qpl02.pdf.
---------------------------------------------------------------------------
A. Summary of the Comment Submitted by the NLCCA
As the President of the organization, Jonathan P. Sexton, states in
the NLCCA's comment, Department attorneys spoke with Mr. Sexton during
the course of the investigation, and the United States was therefore
aware of the Association's concerns about the Lamar quarry.
In its comment, the NLCCA notes that the proposed Final Judgment
does not mention the Lamar quarry, which according to the organization
received the necessary permits for its operation only on November 9,
2007, four days before the filing of the Complaint and proposed Final
Judgment. The NLCCA asserts that Vulcan ``plans to serve southeast
Atlanta with not only the Butts County Quarry but the huge 588.50
[acre] Lamar County Quarry,'' and that allowing Vulcan to continue to
operate the Lamar County Quarry ``effectively nullifies the effect on
competition of the divesting of the Butts County Quarry.'' The comment
states that ``the Lamar County Quarry is centered between the Butts
County Quarry and the Griffin Quarry,'' and that there is ``no major
competition in this area of South and Southeastern Atlanta.'' The NLCCA
concludes by arguing that the proposed Final Judgment (the ``Consent
Agreement'') is ``flawed and in error'' because of its ``failure to
address competition in light of the Lamar County Quarry,'' and that the
defendants ``should be required to divest of both the Butts County
Quarry and the Lamar County Quarry.''
B. Response of United States to the NLCCA's Comment
The United States has carefully considered the NLCCA's comment, but
disagrees that failure to require the divestiture of the Lamar quarry
will have any adverse effect on competition. As noted in the comment,
the three quarries nearest to one another in the area around Lamar
County are: (1) The Griffin Quarry, which had been owned by Florida
Rock; (2) the Lamar County quarry project, to the southeast of the
Griffin quarry, which was being developed by Florida Rock; and (3) the
Butts County quarry project, still further to the east, which was being
developed by Vulcan. The key fact is that the Griffin quarry and the
Lamar County project were both owned by Florida Rock, and there would
have been no competition between these two quarries whether or not
Florida Rock had been acquired by Vulcan. The Butts County project, on
the other hand, was being developed by Vulcan, and this quarry
[[Page 18566]]
thus would have provided independent competition to the Florida Rock
quarries in the area but for the acquisition. It is this competition--
the competition provided by the Butts County quarry--that would have
been removed by Vulcan's acquisition of Florida Rock. And it is this
competition that the Final Judgment preserves by requiring that the
Butts quarry project be divested. Requiring divestiture of the Lamar
County quarry as well as the Butts quarry would go well beyond what is
needed to restore competition in the Southeast Atlanta market, which is
why the United States did not seek to have this divestiture included in
the Final Judgment.
III. Conclusion
The issues raised in the public comment were among the many
considered during the extensive and thorough investigation. The United
States has determined that the proposed Final Judgment provides an
effective and appropriate remedy for the antitrust violations alleged
in the Complaint, and is therefore in the public interest. The United
States will move this Court to enter the proposed Final Judgment after
the comment and response are published. Respectfully submitted,
Dated: March 18, 2008.
Robert W. Wilder,
Attorney.
U.S. Department of Justice,
Antitrust Division,
Litigation II Section,
1401 H Street, NW., Suite 3000,
Washington, DC 20530,
Telephone: (202) 307-0924.
Certificate of Service
I, Robert W. Wilder, hereby certify that on the 18th day of March,
2008, I caused a copy of the foregoing Plaintiff United States'
Response to Public Comments with attachments to be mailed, by U.S.
mail, postage prepaid, to the attorneys listed below:
Counsel for Defendant Vulcan Materials Company: Joseph D. Larson,
Esquire, Wachtell, Lipton, Rosen & Katz LLP, 51 West 52nd Street, New
York, New York 10019, (212) 403-1000, JDLarson@wlrk.com.
Counsel for Defendant Florida Rock Industries, Inc.: Laura A.
Wilkinson, Esquire, Weil, Gotshal & Manges LLP, 1300 I Street, NW.,
Suite 900, Washington, DC 20005, (202) 682-7005,
laura.wilkinson@weil.com.
North Lamar County Citizens Association: Jonathan P. Sexton,
President, P.O. Box 516, Milner, Georgia 30257, (770) 474-9335,
jonsclerk@yahoo.com.
North Lamar County Citizens Association P.O. Box 516, Milner, Georgia
30257. ``Quality Growth, Quality Life''
January 12, 2008.
Via Certified Mail Return Receipt Na 1555474410048138605.
Maribeth Petrizzi, Chief, Litigation H Section, Antitrust Division,
U.S. Department of Justice, 1401 H Street, NW., Suite 3000, Washington,
DC 20530.
Re: USA DOJ v. Vulcan Materials Company and Florida Rock
Industries, Inc., Case: I:07-cv-02044.
Dear Ms. Petrizzi,
My name is Jonathan Sexton. I am President of the North Lamar
County Citizens Association. Please consider this to be our comment
pursuant to the Tunney Act regarding the proposed consent decree and
the merger of Vulcan Materials Company (Vulcari) and Florida Rock
Industries, Inc. (FRI). I read the complaint and the impact with some
interest. Let me bring to your attention a major issue that was left
out of the impact statement with respect to the anti-competitive effect
of this merger on the South Atlanta and Southeast Atlanta markets.
In examining the proposed consent agreement with respect to the
South Atlanta and Southeast Atlanta markets, there has been a glaring
omission. In paragraph 2(B)(2)(d) and (e) there is no mention of the
FRI quarry in development in Lamar County. This quarry is only 9.89
miles from the Vulcan Butts County quarry that is mentioned and is
being divested. The Lamar County Quarry is 23 miles from the FRI
Griffin Quarry and 29 miles from the Vulcan Stockbridge Quarry. We know
that the DOJ is aware of this quarry as I have personally had
conversations with Helena Jolly (Gardner) regarding this specific
quarry. The quarry received Georgia EPD surface, air, and water permits
on November 9, 2007. (A copy of the permits are attached as Exhibit A).
This quarry encompasses 588.50 acres in Lamar County and has been
described by FRI in public hearings as ``one of the best deposits of
granite in the State of Georgia outside of Stone Mountain.''
As discussed in the impact statement, the issue is competition and
competitive pricing in the aggregate industry is typically determined
by plant and service locations. Vulcan plans to serve southeast Atlanta
with not only the Butts County Quarry but the huge 588.50 Lamar County
Quarry. Allowing Vulcan and FRI to operate the Lamar County Quarry
effectively nullifies the effect on competition of the divesting of the
Butts County Quarry. Vulcan will have effectively ringed in and roped
off the southeast Atlanta area from competition if it is allowed to
operate this large Lamar County Quarry. Attached as Exhibit 2 is a map
of quarries in the area. Flag A is the Butts County Quarry. Flag B is
the Lamar County Quarry. Flag R is the Griffin Quarry. All of the blue
flags expect for A are competitors. All of the orange flags are Vulcan
and FRI quarries. As you can see, the Lamar County Quarry is centered
between the Butts County Quarry and the Griffin Quarry. There is no
major competition in this area of South and Southeast Atlanta.
Page 2, January 12, 2008.
There is also an error in paragraph 24 of the complaint and impact
statement. Paragraph 24 of the complaint and paragraph 2(B)(2)(d) of
the Impact Statement refer to an unnamed competitors quarry located in
College Park, Georgia that acts as a competitor to Defendants.
According to the Mining Directory of Georgia, 21st Edition, Georgia
Department of Natural Resources, Environmental Protection Division,
there is no such competitor's quarry in College Park, Georgia. We are
unaware of any such quarry.
Clearly, failure to address competition in light of the Lamar
County Quarry makes the Consent Agreement flawed and in error with
respect to decreasing competition and increasing prices in South and
Southeast Atlanta. Defendants should be required to divest of both the
Butts County Quarry and the Lamar County Quarry.
Sincerely,
Jonathan P. Sexton
President, North Lamar County Citizens Association
Cc: Honorable Emmet G. Sullivan,
Judge, United States District Court for the District of Columbia
BILLING CODE 4410-11-P
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[GRAPHIC] [TIFF OMITTED] TN04AP08.004
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[GRAPHIC] [TIFF OMITTED] TN04AP08.005
[[Page 18570]]
Maps appearing here in the comment are illegible upon reprinting.
The maps are available at the Department of Justice Antitrust Division,
325 Seventh Street, NW., Room 215, Washington, DC 20530, (202) 514-
2481, and at the Office of the Clerk of the United States District
Court for the District of Columbia, 333 Constitution Avenue, NW.,
Washington, DC 20001.
North Lamar County Citizens Association
P.O. Box 516, Milner, Georgia 30257.
``Quality Growth, Quality Life''
January 14, 2008.
Maribeth Petrizzi, Chief, Litigation II Section, Antitrust
Division, U.S. Department of Justice, 1401 H Street NW., Suite 3000,
Washington, DC 20530.
Supplement To Comment
Re: USA DOJ v. Vulcan Materials Company and Florida Rock
Industries, Inc., Case: I:07-cv-02044.
Dear Ms. Petrizzi,
After sending our comment I realized there was no contact
information included. Accordingly, below is my contact information.
Also attached are photos showing that FRI has already begun working at
the Lamar County Quarry.
If you have any questions, please feel free to call me.
Sincerely,
Jonathan P. Sexton
President, North Lamar County Citizens Association
Contact: Jonathan P. Sexton.
Phone: 770-474-9335.
Fax: 770-474-7113.
E-mail: jonsclerk@yahoo.com.
Photographs appearing here in the comment are illegible upon
reprinting. The photographs are available at the Department of Justice
Antitrust Division, 325 Seventh Street, NW., Room 215, Washington, DC
20530, (202) 514-2481, and at the Office of the Clerk of the United
States District Court for the District of Columbia, 333 Constitution
Avenue, NW., Washington, DC 20001.
[FR Doc. E8-6875 Filed 4-3-08; 8:45 am]
BILLING CODE 4410-11-C
