Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Notices 6325

documents, is available from Mathew 

Craddock, Realty Specialist, at the above 

address, phone (541) 618–2221.

SUPPLEMENTARY INFORMATION: This land 

is being considered for direct sale to 

Jack and Jackie Gray, the family of Mary 

Gray, to resolve a long-term, 

inadvertent, unauthorized occupancy of 

the public land. The encroachment 

involves a residence currently occupied 

by Mary Gray, the original historic Gray 

family home, outbuildings, equipment 

storage, a road and a well. The Gray 

family owns private property adjacent to 

the subject public land. The initial 

occupancy began approximately sixty 

years ago when the Gray family placed 

improvements on the public land 

assuming it was part of their adjacent 

private ownership. 

The sale would assemble the BLM 

lands to the Gray property, protect the 

improvements placed on the lands by 

the Gray family, and resolve an 

inadvertent trespass. The parcel is the 

minimum size possible to ensure that all 

of the improvements are included. A 

cadastral survey was completed to 

partition the sale parcel from the larger 

BLM ownership. 

In accordance with 43 CFR 2710.0–

6(c)(3)(iii), direct sale procedures are 

appropriate to resolve an inadvertent 

unauthorized occupancy of the land and 

to protect existing equities in the land. 

Jack and Jackie Gray will be allowed 

30 days from receipt of a written offer 

to submit a deposit of at least 20 percent 

of the appraised market value of the 

parcel, and 180 days thereafter to 

submit the balance. 

The following rights, reservations, 

and conditions will be included in the 

deed conveying the land: 

1. A reservation to the United States 

for a right-of-way for ditches and canals 

constructed by the authority of the 

United States, Act of August 30, 1890 

(43 U.S.C. 945). 

2. A reservation to the United States 

for a right-of-way for Bureau of Land 

Management road #34–7–2 (OR 1902). 

The deed would contain a floodplain 

covenant pursuant to the authority 

contained in section 3(d) of Executive 

Order 11988 of May 24, 1977, and 

sections 203 and 209 of the Federal 

Land Policy and Management Act of 

1976, 90 Stat. 2750, 43 U.S.C. 1713 and 

1719. The deed is subject to a restriction 

which constitutes a covenant running 

with the land. The land may be used 

only for a residential homesite. No 

additional structures may be placed 

within the floodplain area without the 

approval of local government planning 

offices. 

The deed would also include a notice 

and indemnification statement under 

the Comprehensive Environmental 

Response, Compensation and Liability 

Act (42 U.S.C. 9620) holding the United 

States harmless from any release of 

hazardous materials that may have 

occurred as a result of the unauthorized 

use of the property by other parties. 

Acceptance of the direct sale offer 

constitutes an application for 

conveyance of the mineral interests also 

being offered under the authority of 

section 209(b) of the Federal Land 

Policy and Management Act of 1976. In 

addition to the full purchase price, a 

nonrefundable fee of $50 will be 

required from the prospective purchaser 

for purchase of the mineral interests to 

be conveyed simultaneously with the 

sale of the land. 

The land described is segregated from 

appropriation under the public land 

laws, including the mining laws, 

pending disposition of this action or 270 

days from the date of publication of this 

notice, whichever occurs first. Protests/

comments, including names, street 

addresses, and other contact 

information of respondents, will be 

available for public review. Individual 

respondents may request 

confidentiality. 

If you wish to request that BLM 

consider withholding your name, street 

address and other contact information 

(such as: Internet address, FAX or 

phone number) from public review or 

from disclosure under the Freedom of 

Information Act, you must state this 

prominently at the beginning of your 

written comment. BLM will honor 

requests for confidentiality on a case-bycase basis to the extent allowed by law. 

BLM will make available for public 

inspection in their entirety all 

submissions from organizations or 

businesses, and from individuals 

identifying themselves as 

representatives or officials of 

organizations or businesses.

Dated: December 3, 2003. 

Lynda Boody, 

Field Manager Glendale Resource Area, 

Medford District Office.

[FR Doc. 04–2757 Filed 2–9–04; 8:45 am] 

BILLING CODE 4310–33–P

INTERNATIONAL TRADE 

COMMISSION 

[USITC SE–04–002] 

Sunshine Act Meeting

AGENCY HOLDING THE MEETING:

International Trade Commission.

TIME AND DATE: February 17, 2004 at 11 

a.m.

PLACE: Room 101, 500 E Street SW., 

Washington, DC 20436, Telephone: 

(202) 205–2000.

STATUS: Open to the public.

MATTERS TO BE CONSIDERED:

1. Agenda for future meetings: none. 

2. Minutes. 

3. Ratification List. 

4. Inv. Nos. 731–TA–1063–1068 

(Preliminary) (Certain Frozen and 

Canned Warmwater Shrimp and Prawns 

from Brazil, China, Ecuador, India, 

Thailand, and Vietnam)—briefing and 

vote. (The Commission is currently 

scheduled to transmit its determination 

to the Secretary of Commerce on or 

before February 17, 2004; 

Commissioners’ opinions are currently 

scheduled to be transmitted to the 

Secretary of Commerce on or before 

February 24, 2004.) 

5. Outstanding action jackets: none. 

In accordance with Commission 

policy, subject matter listed above, not 

disposed of at the scheduled meeting, 

may be carried over to the agenda of the 

following meeting.

Issued: February 5, 2004.

By order of the Commission. 

Marilyn R. Abbott, 

Secretary to the Commission.

[FR Doc. 04–2941 Filed 2–6–04; 10:34 am] 

BILLING CODE 7020–02–P

DEPARTMENT OF JUSTICE

Antitrust Division 

United States v. First Data Corporation 

and Concord EFS, Inc.; Competitive 

Impact Statement, Proposed Final 

Judgment and Complaint 

Notice is hereby given pursuant to the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. section 16(b) through (h), that 

a proposed Final Judgment, Amended 

Hold Separate Stipulation and Order, 

and Competitive Impact Statement have 

been filed with the United States 

District Court for the District of 

Columbia in United States of America v. 

First Data Corporation and Concord 

EFS, Inc., Civil Action No. 03CV02169. 

On October 23, 2003, the United States 

filed a Complaint alleging that the 

proposed acquisition by First Data of 

Concord would violate Section 7 of the 

Clayton Act, 15 U.S.C. 18. The 

Complaint alleges that the acquisition 

would reduce competition substantially 

in the PIN debit network services 

market by combining Concord’s STAR 

PIN debit network with the NYCE PIN 

debit network. First Data owns a 

controlling 64 percent interest in NYCE. 

The proposed Final Judgment requires 

6326 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Notices 

1The original Hold Separate Stipulation and 

Order signed by the Court on December 15, 2003 

prohibited any first Data officer, director, manager, 

employee, or agent from serving on the NYCE Board 

of Directors after December 30, 2003. This deadline 

would have required six First Data employees who 

were serving on the NYCE Board to resign. On 

December 30, 2003, with the consent of all parties, 

the Court issued an order extending First Data’s 

deadline concerning participation on the NYCE 

Board until January 9, 2004. On January 9, the 

parties filed a consent motion requesting that the 

Court enter the Amended Hold Separate Stipulation 

and Order, which the Court signed on January 13, 

2004. The Amended Hold Separate Stipulation and 

Order allows First Data to retain its NYCE Board 

seats for certain limited specifically enumerated 

purposes unless the United States, in its sole 

discretion, in consultation with the Plaintiff States, 

requires First Data’s representatives on the NYCE 

Board to resign.

2The term ‘‘NYCE Holdings’’ is defined at ¶II.G 

of the Final Judgment.

First Data to divest all of its interests in 

NYCE. Copies of the Complaint, 

proposed Final Judgment, Amended 

Hold Separate Stipulation and Order, 

and Competitive Impact Statement are 

available for inspection at the 

Department of Justice in Washington, 

DC, in Room 9500, 600 E Street, NW. 

and at the Office of the Clerk of the 

United States District Court for the 

District of Columbia, Washington, DC. 

Public comment is invited within 60 

days of the date of this notice. Such 

comments, and responses thereto, will 

be published in the Federal Register

and filed with the Court. Comments 

should be directed to Renata Hesse, 

Chief, Networks and Technology 

Section, Antitrust Division, Department 

of Justice, Suite 9500, 600 E Street, NW., 

Washington, DC 20530, (telephone: 

202–307–6200).

J. Robert Kramer, II, 

Director of Operations, Antitrust Division.

Competitive Impact Statement 

Plaintiff, the United States of America 

(‘‘United States’’), pursuant to section 

2(b) of the Antitrust Procedures and 

Penalties Act (‘‘APPA’’), 15 U.S.C. 

§ 16(b)-(h), files this Competitive Impact 

Statement relating to the proposed Final 

Judgment submitted for entry in this 

civil antitrust proceeding. 

I. Nature and Purpose of the Proceeding 

Defendant first Data Corporation 

(‘‘First Data’’) and Defendant Concord 

EFS, Inc. (‘‘Concord’’) entered into an 

Agreement and Plan of Merger on April 

1, 2003, pursuant to which First Data 

would acquire Concord in an all-stock 

transaction then valued at 

approximately $7 billion. On October 

23, 2003, the United States and the 

States of Connecticut, Illinois, 

Louisiana, Massachusetts, New York, 

Ohio, Pennsylvania and Texas, and the 

District of Columbia (‘‘Plaintiff States’’) 

filed a civil antitrust complaint, seeking 

to enjoin the proposed acquisition. The 

Complaint alleges that the acquisition 

would reduce competition substantially 

in the PIN debit network services 

market by combining the STAR and 

NYCE PIN debit networks, in violation 

of section 7 of the Clayton Act, 15 

U.S.C. 18. 

PIN debit networks provide a fast and 

secure payment mechanism that is used 

at more than one million merchant 

locations. The acquisition would have 

significantly increased the 

concentration levels in the already 

concentrated PIN debit network services 

market by combining the largest and 

third-largest PIN debit networks in the 

United States, STAR and NYCE, 

respectively. This significant increase in 

market concentration would likely have 

substantially reduced competition 

among PIN debit networks for merchant 

customers, resulting in thousands of 

merchants paying higher prices and 

receiving poorer levels of service for PIN 

debit network services. Merchants 

would have passed on at least some of 

these higher costs by raising the prices 

of their goods and services, to the 

detriment of tens of millions of 

consumers throughout the United 

States. Accordingly, the complaint 

sought: (1) a judgment that the proposed 

acquisition would violate Section 7 of 

the Clayton Act; and (2) permanent 

injunctive relief that would prevent 

Defendants from carrying out the 

acquisition or otherwise combining 

their businesses or assets. 

On December 15, 2003, the United 

States, the Plaintiff States and the 

Defendants filed a proposed Final 

Judgment and Hold Separate Stipulation 

and Order, which will eliminate the 

anticompetitive effects of the 

acquisition. Upon the filing of the 

proposed Final Judgment and Hold 

Separate Stipulation and Order, the 

Defendants announced that they had 

extended the date for closing the 

transaction until April 30, 2004. On 

January 9, 2004, the parties filed an 

Amended Hold Separate Stipulation 

and Order.1

The proposed Final Judgment requires 

First Data, within 150 calendar days 

after the Court’s signing of the original 

Hold Separate Stipulation and Order, or 

five days after notice of the entry of this 

Final Judgment by the Court, whichever 

is later, to divest all of its governance 

rights in NYCE and its entire 64 percent 

ownership interest in NYCE 

(collectively ‘‘NYCE Holdings’’).2 The 

requirement that First Data divest NYCE 

is equivalent to the relief the United 

States would likely have obtained had it 

prevailed at trial.

The terms of the Amended Hold 

Separate Stipulation and Order require 

First Data to take certain steps to ensure 

that NYCE is operated as a 

competitively independent, 

economically viable and ongoing 

business concern, that will remain 

independent and uninfluenced by the 

consummation of the acquisition, and 

that competition is maintained during 

the pendency of the ordered divestiture. 

The United States, the Plaintiff States 

and the Defendants have stipulated that 

the proposed Final Judgment may be 

entered after compliance with the 

APPA. Entry of the proposed Final 

Judgment would terminate this action, 

except that the Court would retain 

jurisdiction to construe, modify or 

enforce the provisions of the proposed 

Final Judgment and to punish violations 

thereof. 

II. Description of the Events Giving Rise 

to the Alleged Violation 

A. The Defendants and the Proposed 

Transaction 

First Data is a Delaware corporation 

headquartered in Greenwood Village, 

Colorado. In 2002, First Data reported 

total worldwide revenues of $7.6 

billion. First Data owns 64 percent of 

NYCE, which operates the third largest 

PIN debit network. Citicorp, J.P. Morgan 

Chase & Co., FleetBoston Financial and 

HSBC USA Inc. own the remaining 36 

percent of NYCE. First Data also owns 

substantial merchant and card issuing 

processing operations, as well as 

Western Union, the leading provider of 

consumer-to-consumer money transfer 

services. 

Concord is a Delaware corporation 

headquartered in Memphis, Tennessee. 

Concord’s revenues in 2002 totaled 

nearly $2 billion. Concord operates 

STAR, the largest PIN debit network. 

STAR is comprised of a number of PIN 

debit networks that Concord acquired 

over the last several years. Concord 

brought MAC in 1999, Cash Station in 

2000, and then STAR in 2001, merging 

it with the MAC network. Shortly before 

Concord acquired STAR, STAR bought 

the HONOR network, which had 

recently acquired the MOST network. 

Concord also is a leading merchant 

processor and provides an array of 

services to debit card issuers and ATM 

owners. 

First Data and Concord executed a 

merger agreement on April 1, 2003. 

Under that agreement, First Data would 

acquire Concord through an all-stock 

transaction.

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Notices 6327

B. Product Market: PIN Debit Network 

Services 

The Complaint alleges that PIN debit 

network services is a line of commerce 

and a relevant antitrust product market 

within the meaning of section 7 of the 

Clayton Act, 15 U.S.C. § 18. During the 

1970s, bank consortiums formed 

numerous regional electronic funds 

transfer (‘‘EFT’’) networks to enable 

their customers to withdraw funds from 

ATMs owned by multiple banks. EFT 

networks were first used for PIN debit 

transactions in the early 1980s. It was 

not until the mid-1990s, however, that 

PIN debit transactions became a popular 

method of payment for consumers to 

purchase goods and services at retail 

stores. PIN debit transaction volume 

grew substantially over the past five 

years due to merchant and consumer 

recognition of the advantages of PIN 

debit as a form of payment. Today, 

consumers make over 500 million PIN 

debit transactions every month. 

A PIN debit network provides the 

telecommunications and payments 

infrastructure that connects a network’s 

participating financial institutions with 

merchant locations throughout the 

United States. A PIN debit network also 

performs a number of related functions 

necessary for the efficient operation of 

the network. For example, PIN debit 

networks: (1) Promote their brand 

names among consumers, merchants 

and financial institutions; (2) establish 

rules and standards to govern their 

networks; and (3) set fees and 

assessments for use of the network’s 

products and services. 

To execute a PIN debit transaction, a 

customer swipes a debit card at a pointof-sale terminal and enters a PIN on a 

numeric keypad. After the PIN is 

entered, the transaction and card 

information is sent over the PIN debit 

network to the card-issuing financial 

institution for authorization. The 

financial institution sends an electronic 

message to the PIN debit network, 

accepting or rejecting the transaction. 

The PIN debit network switches this 

reply back to the merchant to complete 

the transaction. The entire process takes 

place electronically in several seconds. 

PIN debit networks charge both the 

merchant and the card-issuing financial 

institution a per transaction ‘‘switch’’

fee for the network’s routing services. 

PIN debit networks also set an 

‘‘interchange’’ fee. The interchange fee 

is paid by the merchant to the PIN debit 

network and then passed through to the 

card-issuing financial institution. 

Generally, the merchant’s total charge 

from the PIN debit networks for each 

transaction is the switch fee plus the 

interchange fee. 

As stated, the Complaint alleges that 

PIN debit network services is a relevant 

antitrust product market. A hypothetical 

monopolist could profitably impose a 

small but significant and nontransitory 

increase in the price (‘‘SSNIP’’) of all 

PIN debit network services. Merchants 

would not defeat a SSNIP for PIN debit 

network services by requiring or 

encouraging their customers to switch to 

other payment methods, including 

signature debit network services. In 

particular, PIN debit networks offer a 

number of substantial advantages to 

consumers and merchants that 

distinguish them from signature debit 

networks. PIN debit networks are 

generally significantly less expensive to 

merchants than signature debit 

networks. PIN debit networks also often 

provide a more secure method of 

payment than signature debit networks 

because it is easier to forge a person’s 

signature than to obtain an individual’s 

PIN. Because of the increased security of 

PIN debit network services, there is no 

need for the charge-back procedures that 

allow consumers to challenge signature 

debit transactions, thereby saving 

merchants additional time and money. 

PIN debit transactions also generally 

settle more quickly than signature debit 

transactions. Finally, PIN debit 

networks often allow for faster 

execution at the point of sale than 

signature debit networks.

Merchants also would not defeat a 

SSNIP for PIN debit network services 

because significant numbers of 

consumers prefer to use PIN debit 

transactions over other forms of 

payment, particularly at supermarkets, 

mass merchandisers and drug stores. 

Many consumers value the security and 

speed of PIN debit transactions, as well 

as the ‘‘cash back’’ feature that allows 

them to receive cash at the register 

when making a purchase. Consumers 

cannot receive cash back when making 

a signature debit purchase. Today, 

consumers request cash back in 

approximately 20 percent of all PIN 

debit transactions. Consequently, many 

merchants would risk causing 

substantial customer backlash if they 

stopped offering or discouraged PIN 

debit transactions. 

C. Geographic Market: United States 

While certain PIN debit networks are 

stronger in particular areas of the 

country, the largest networks, including 

STAR and NYCE, are accepted at many 

merchant locations throughout the 

United States. Accordingly, the United 

States is a relevant geographic market 

for the provision of PIN debit network 

services within the meaning of section 

7 of the Clayton Act, 15 U.S.C. 18. 

D. Harm to Competition in the PIN Debit 

Network Services Market 

The Complaint alleges the First Data’s 

acquisition of Concord is likely to 

substantially reduce competition in the 

PIN debit network services market by 

combining the largest and third-largest 

PIN debit networks, STAR and NYCE. 

The loss of this significant competition 

would have caused higher prices and 

reduced levels of service to merchants 

and consumers. The PIN debit network 

services market is already very 

concentrated. As of March 2003, STAR 

routed approximately 56 percent of all 

PIN debit transactions, while Interlink 

and NYCE accounted for approximately 

15 percent and 10 percent of the PIN 

debit market, respectively. Although 

recent contract losses may reduce 

STAR’s market share (and increase 

Interlink’s), under the most conservative 

estimates, STAR will remain the largest 

PIN debit network in the United States, 

with at least a 35 percent market share. 

Thus, if the transaction were completed, 

the combined STAR/NYCE network 

would be the largest PIN debit network, 

with at least a 45 percent market share. 

Together, the combined STAR/NYCE 

network and Interlink would form a 

near duopoly, accounting for more than 

80 percent of all PIN debit transactions. 

This highly concentrated market 

structure would have enabled PIN debit 

networks to increase prices and reduce 

levels of service to merchant customers. 

PIN debit networks compete for 

merchants’ business by convincing 

merchants to accept their networks and 

to route debit transactions to their 

networks when there is a choice of 

routing options. PIN debit networks also 

compete for merchants by improving 

their networks’ transmission speed, 

limiting network down-time and 

reducing the number of improperly 

rejected transactions. Merchants’ ability 

to choose which PIN debit networks to 

accept at their stores, and to control the 

routing of some PIN debit transactions, 

constrains the prices that merchants pay 

for PIN debit network services and helps 

to ensure high quality levels of service. 

1. Merchant Threats To Drop PIN Debit 

Networks 

The Complaint alleges that combining 

STAR and NYCE would have harmed 

competition in the PIN debit network 

services market by reducing merchants’

ability to drop either network. The PIN 

debit networks take merchants’ threats 

to drop their networks seriously. The 

loss merchant customers can 

significantly reduce a PIN debit 

6328 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Notices 

network’s profits. In addition to the lost 

switch fees from merchants, the loss of 

merchant business can make a PIN debit 

network less attractive to its financial 

institution customers. PIN debit 

networks compete for financial 

institution members based in part on the 

number of merchants that accept their 

networks. 

Merchant have prevented or reduced 

some large price increased from STAR, 

NYCE and interlink by credibly 

threatening to discontinue acceptance of 

the networks. During the past two years, 

STAR, NYCE and Interlink each 

reduced planned price increases by 

more than one third because of concerns 

that merchants would drop their 

networks. This reduction in the amount 

of the three leading networks’ planned 

price increases resulted in more than 

$100 million in annual savings to 

merchant customers. 

Merchants’ ability to drop a PIN debit 

network, or to credibly threaten to do 

so, depends on several factors, 

including: (1) A network’s market share; 

and (2) the number of the network’s PIN 

debit transactions that are routed over 

‘‘single-bugged’’ debit cards. Generally, 

it is riskier for a merchant to drop a PIN 

debit network with a larger market share 

because of the increased likelihood of 

rejected transactions, delays at checkout lines, customer confusion and 

embarrassment, lost sales, and 

customers’ use of more costly forms of 

payment for merchants. Dropping a PIN 

debit network with a large market share 

is particularly risky if many of the debit 

cards that can connect to that network 

are ‘‘single-bugged’’ with only that 

network. A single-bugged debit card can 

connect to only one PIN debit network. 

For example, some debit cards are 

single-bugged only with STAR. If a 

merchant does not accept STAR, then 

card holders with debit cards that are 

single-bugged only with STAR cannot 

execute a PIN debit transaction at that 

merchant. In contrast, if a debit card is 

bugged with STAR and other PIN debit 

networks, then a merchant’s decision to 

drop STAR may not prevent the card 

holder from making PIN debit 

transactions at the merchant if the 

merchant accepts at least one of the 

other PIN debit networks on the debit 

card.

Combining STAR and NYCE would 

have made it substantially more difficult 

for merchants to drop, or credibly 

threaten to drop STAR or NYCE, to 

prevent future price increases. The 

merged networks would have had a 

large combined market share of at least 

45%, a significant increase over each 

network’s current market share. In 

addition, combining STAR and NYCE 

would have increased substantially the 

number of STAR and NYCE PIN debit 

transactions executed with debit cards 

that were single-bugged. 

2. Reduced Least-Cost Routing 

Opportunities 

The Complaint also alleges that 

combining STAR and NYCE would have 

reduced competition in the PIN debit 

network services market for merchant 

customers by limiting merchants’

opportunities to route PIN debit 

transactions to the least expensive 

network (‘‘least-cost routing’’). Some 

large merchants, either directly or 

through their processors, always route 

PIN debit transactions to the least 

expensive PIN debit network when a 

debit card is bugged with multiple PIN 

debit networks. Other merchants and 

processors least-cost route when there 

are conflicts in the networks’ routing 

rules. Conflicts occur when two 

networks both claim ‘‘priority’’ status 

for a particular debit card. For example, 

both STAR and NYCE may require 

merchants (or their processors) to route 

PIN debit transactions executed with a 

particular debit card over their 

networks. In such instances, some 

merchants (and processors) will route to 

the less expensive network. 

Least-cost routing opportunities 

constrain PIN debit networks from 

increasing prices to merchants, or 

reducing levels of service, because they 

permit merchants, in some 

circumstances, to route around more 

expensive networks, or networks that 

offer poorer levels of service. In recent 

years, major supermarkets and mass 

merchandisers have obtained superior 

prices and levels of service by routing, 

or threatening to route, transactions 

away from one PIN debit network to 

another network. 

Merchants currently have a 

substantial number of opportunities to 

least-cost route PIN debit transactions 

between STAR and NYCE. A large 

number of debit cards can connect to 

both STAR and NYCE. Further, STAR 

and NYCE’s routing rules often conflict. 

The merger would have prevented 

merchants from obtaining lower prices 

and improved levels of service from 

STAR and NYCE by leveraging their 

ability to route PIN debit transactions 

away from STAR to NYCE, and vice 

versa. 

E. Timely and Sufficient Entry Is 

Unlikely 

The Complaint alleges that, in the 

near future, entry or expansion into the 

PIN debit network services market is 

unlikely to defeat the anticompetitive 

price increases that the combination of 

STAR and NYCE would have caused. 

There has been virtually no new entry 

in the PIN debit network services 

market for more than five years. Entry 

and expansion are difficult because the 

market is characterized by substantial 

‘‘network effects.’’ A network must 

attract a substantial number of financial 

institutions as members, while at the 

same time convince a large number of 

merchants to accept the network. 

Coordinated development of both 

financial institution members and 

merchant acceptance is critical because 

the utility of a particular PIN debit 

network to consumers, banks and 

merchants depends heavily on the 

breadth of its acceptance and use. 

In addition, most PIN debit networks 

have adopted rules and policies that 

increase the cost of expansion by a 

small network or entry by a new market 

participant. Most significantly, network 

routing rules that specify the routing of 

transactions executed with multibugged cards sometimes can slow the 

degree to which a new PIN debit 

network can expand. Companies (such 

as First Data and Concord) that own 

both merchant processing operations 

and PIN debit networks also can make 

entry or expansion by PIN debit 

networks more difficult. When a PIN 

debit transaction is executed with a 

multi-bugged card, in some 

circumstances, merchant processors can 

determine which of the multiple PIN 

debit networks receives the transaction. 

Accordingly, companies that own both 

merchant processing operations and PIN 

debit networks may have some 

opportunities and incentives to favor 

their own PIN debit networks. 

III. Explanation of the Proposed Final 

Judgment 

The proposed Final Judgment’s 

requirement that First Data divest its 

NYCE Holdings will eliminate the 

anticompetitive effects in the PIN debit 

network services market that the 

transaction would have produced. First 

Data’s divestiture of its NYCE Holdings 

will prevent the combination of STAR 

and NYCE, the combination of First 

Data and Concord’s assets that would 

have violated section 7 of the Clayton 

Act. By preventing the combination of 

STAR and NYCE, the proposed Final 

Judgment will ensure that merchants 

retain their current ability to obtain 

competitive prices and levels of service 

from the two networks, either by: (1) 

Dropping, or credibly threatening to 

drop, STAR and/or NYCE; or (2) taking 

advantage of least-cost routing 

opportunities between the two 

networks.

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Notices 6329

3The Court signed the original Hold Separate 

Stipulation and Order on December 15, 2003.

The proposed Final Judgment requires 

First Data, within 150 calendar days 

after the Court’s signing of the original 

Hold Separate Stipulation and Order,3

or five days after notice of the entry of 

the Final Judgment by the Court, 

whichever is later, to divest all of its 

NYCE Holdings. Final Judgment ¶ IV.A. 

Again, the NYCE Holdings consist of all 

of First Data’s governance rights in 

NYCE, and First Data’s entire 64 percent 

ownership interest in NYCE, including 

all tangible assets. Final Judgment ¶ II.G. 

The United States agreed to allow First 

Data 150 days to divest its NYCE 

holdings, rather than the 120-day time 

period typically required for 

divestitures to remedy Section 7 

violations, because NYCE’s minority 

shareholders, by contract, have 30 days 

to match any third-party offer to 

purchase First Data’s interests in NYCE. 

Had the United States not agreed to the 

additional 30-day divestiture period, 

First Data effectively would have had 

only 90 days to find a buyer for its 

NYCE holdings.

In addition to divesting its NYCE 

Holdings, the proposed Final Judgment 

requires First Data to provide certain 

guarantees to the buyer of the NYCE 

holdings, including warranting that: (1) 

Each asset therein that was operational 

as of the date of filing of the Complaint 

will be operational on the date of the 

divestiture; and (2) there are no material 

defects in the environmental, zoning or 

other permits pertaining to the 

operation of NYCE. Final Judgment 

¶¶ IV.E and G. 

The United States, in its sole 

discretion, after consultation with the 

Plaintiff States, may agree to one or 

more extensions of this time period, not 

to exceed in total 90 calendar days. 

Final Judgment ¶ IV.A. The NYCE 

Holdings must be divest in such a way 

as to satisfy the United States in its sole 

discretion, after consultation with the 

Plaintiff States, that NYCE can and will 

be operated by the purchaser as a viable, 

ongoing business that can compete 

effectively in the relevant market. Final 

Judgment ¶¶ IV.A and H. First Data 

must take all reasonable steps necessary 

to accomplish the divestiture quickly 

and shall cooperate with prospective 

acquirers. 

If First Data does not accomplish the 

ordered divestiture within the 

prescribed time period, the United 

States will nominate, and the Court will 

appoint, a trustee to assume sole power 

and authority to complete the 

divestiture. Final Judgment ¶ V.A. If a 

trustee is appointed, the proposed Final 

Judgment provides that First Data will 

pay all costs and expenses of the trustee. 

Final Judgment ¶¶ V.B and D. The 

trustee’s commission will be structured 

so as to provide an incentive for the 

trustee based on the price obtained and 

the speed with which the divestiture is 

accomplished. After his or her 

appointment becomes effective, the 

trustee will file monthly reports with 

the Court, the United States and the 

Plaintiff States, setting forth his or her 

efforts to accomplish the divestiture. 

Final Judgment ¶ V.F. If First Data has 

not divested its NYCE Holdings at the 

end of six months, the United States and 

the Plaintiff States will make 

recommendations to the Court, which 

shall enter such orders as appropriate, 

in order to carry out the purpose of the 

trust, including extending the trust or 

the term of the trustee’s appointment. 

Final Judgment ¶ V.G. Defendants must 

cooperate fully with the trustee’s efforts 

to divest First Data’s NYCE Holdings to 

an acquirer acceptable to the United 

States. Final Judgment ¶ V.E. 

The proposed Final Judgment filed in 

this case is meant to ensure the prompt 

divestiture by First Data of its NYCE 

Holdings. The purpose of the divestiture 

is to ensure the maintenance of a viable 

PIN debit network competitor capable of 

competing effectively to provide PIN 

debit network services and to remedy 

the anticompetitive effects that the 

United States and the Plaintiff States 

allege would otherwise result from First 

Data’s acquisition of Concord. See Final 

Judgment ¶ V.H.

The Amendment Hold Separate 

Stipulation and Order will ensure that 

NYCE is maintained and operated as an 

independent competing PIN debit 

network until First Data divests all of its 

NYCE Holdings. The Order, except 

when necessary to carry out First Data’s 

obligations under the Order, bars First 

Data from: (1) Serving as an officer, 

manager, or employee, or in a 

comparable position with or for NYCE; 

(2) exercising any authority through its 

representatives on the NYCE Board of 

Directors, except for limited specifically 

enumerated actions; (3) participating in, 

attending, or receiving any notes, 

minutes, or agendas of, information 

from, or any documents distributed in 

connection with, any nonpublic meeting 

of NYCE’s Board of Directors or any 

committee thereof; and (4) voting or 

permitting to be voted First Data’s NYCE 

shares. Amended Hold Separate 

Stipulation and Order ¶¶ V.1 through 

V.3. In addition, the Order prevents 

First Data from communicating to or 

receiving from any officer, director, 

manager, employee, or agent of NYCE 

any nonpublic information regarding 

any aspect of NYCE’s business. 

Amended Hold Separate Stipulation 

and Order ¶ V.4. The Order also allows 

the United States, in its sole discretion, 

in consultation with the Plaintiff States, 

to require all of First Data’s 

representatives on the NYCE board to 

resign. If the United States exercises its 

discretion to require First Data’s NYCE 

directors to resign, First Data may only 

nominate individuals to fill the vacant 

NYCE Board seats who are officers or 

managers of NYCE or a minority 

shareholder of NYCE. Amended Hold 

Separate Stipulation and Order ¶ V.1. 

IV. Remedies Available to Potential 

Private Litigants 

Section 4 of the Clayton Act, 15 

U.S.C. 15, provides that any person who 

has been injured as a result of conduct 

prohibited by the antitrust laws may 

bring suit in federal court to recover 

three times the damages the person has 

suffered, as well as costs and reasonable 

attorneys’ fees. Entry of the proposed 

Final Judgment will neither impair nor 

assist the bringing of any private 

antitrust damage action. Under the 

provisions of section 5(a) of the Clayton 

Act, 15 U.S.C. 16(a), the proposed Final 

Judgment has no prima facie effect in 

any subsequent private lawsuit that may 

be brought against the Defendants. 

V. Procedures Available for 

Modification of the Proposed Final 

Judgment 

The United States, the Plaintiff States 

and the Defendants have stipulated that 

the proposed Final Judgment may be 

entered in the Court after compliance 

with the provisions of the APPA, 

provided that the United States has not 

withdrawn its consent. The APPA 

conditions entry upon the Court’s 

determination that the proposed Final 

Judgment is in the public interest. 15 

U.S.C. 16(e). 

The APPA provides a period of at 

least 60 days preceding the effective 

date of the proposed Final Judgment 

within which any person may submit to 

the United States written comments 

regarding the proposed Final Judgment. 

15 U.S.C. 16(b&d). Any person who 

wishes to comment should do so within 

60 days of the date of publication of this 

Competitive Impact Statement in the 

Federal Register. The United States will 

evaluate and respond to the comments. 

All comments will be give due 

consideration by the United States 

which remains free to withdraw its 

consent to the proposed Final Judgment 

at any time prior to entry. The 

comments and the response of the 

United States will be filed with the 

6330 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Notices 

4See also United States v. Gillette Co., 406 F. 

Supp. 713, 716 (D. Mass. 1975) (recognizing it was 

not the court’s duty to settle; rather, the court must 

only answer ‘‘whether the settlement achieved 

[was] within the reaches of the public interest’’). A 

‘‘public interest’’ determination can be made 

properly on the basis of the Competitive Impact 

Statement and Response to Comments filed 

pursuant to the APPA. Although the APPA 

authorizes the use of additional procedures, 15 

U.S.C. § 16(f), those procedures are discretionary. A 

court need not invoke any of them unless it believes 

that the comments have raised significant issues 

that further proceedings would aid the court in 

resolving those issues. See H.R. Rep. No. 93–1463, 

93rd Cong., 2d Sess. 8–9 (1974), reprinted in 1974 

U.S.C.C.A.N. 6535, 6538.

5Cf. BNS, 858 F.2d at 464 (holding that the 

court’s ‘‘ultimate authority under the [APPA] is 

limited to approving or disapproving the consent 

decree)’’; Gillette, 406 F. Supp. at 716 (noting that, 

in this way, the court is constrained to ‘‘look at the 

overall picture not hypercritically, nor with a 

microscope, but with an artist’s reducing glass’’). 

See generally Microsoft, 56 F.3d at 1461 (discussing 

whether ‘‘the remedies [obtained in the decree are] 

so inconsonant with the allegations charged as to 

fall outside of the ‘reaches of the public interest’’’).

Court and published in the Federal 

Register.

Written comments should be 

submitted to: Renata B. Hesse, Chief, 

Networks & Technology Section, 

Antitrust Division, United States 

Department of Justice, 600 E Street, 

NW., Suite 9500, Washington, DC 

20530. 

The proposed Final Judgment 

provides that the Court retains 

jurisdiction over this action and the 

parties may apply to the Court for any 

order necessary or appropriate for the 

modification, interpretation or 

enforcement of the Final Judgment. 

VI. Alternatives to the Proposed Final 

Judgment 

The United States considered as an 

alternative to the proposed Final 

Judgment a full trial on the merits 

against the Defendants. The United 

States could have continued the 

litigation and sought permanent 

injunctive relief against First Data’s 

acquisition of Concord. The United 

States is satisfied, however, that the 

divestiture of all of First Data’s interests 

in NYCE to an independent third party 

will achieve all of the relief the United 

States would have obtained through 

litigation and will preserve competition 

for the provision of PIN debit network 

services in the United States. 

VII. Standard of Review Under the 

APPA for the Proposed Final Judgment 

The APPA requires that proposed 

consent judgments in antitrust cases 

brought by the United States be subject 

to a 60-day comment period, after which 

the Court shall determine whether entry 

of the proposed Final Judgment ‘‘is in 

the public interest.’’ 15 U.S.C. 16(e). In 

making the determination, the Court 

may consider:

(1) the competitive impact of such 

judgment, including termination of alleged 

violations, provisions for enforcement and 

modification, duration or relief sought, 

anticipated effects of alternative remedies 

actually considered, and any other 

consideration bearing upon the adequacy of 

such judgment; 

(2) the impact of entry of such judgment 

upon the public generally and individuals 

alleging specific injury from the violations 

set forth in the complaint including 

consideration of the public benefit, if any, to 

be derived from a determination of the issues 

at trial.

Id. The United States Court of Appeals 

for the District of Columbia Circuit has 

held that the statute permits a court to 

consider, among other things, the 

relationship between the remedy 

secured and the specific allegations set 

forth in the government’s complaint, 

whether the decree is sufficiently clear, 

whether enforcement mechanisms are 

sufficient, and whether the decree may 

positively harm third parties. United 

States v. Microsoft Corp., 56 F.3d 1448, 

1458–62 (D.C. Cir. 1995). 

In conducting this inquiry, ‘‘[t]he 

Court is nowhere compelled to go to 

trial or to engage in extended 

proceedings which might have the effect 

of vitiating the benefits of prompt and 

less costly settlement through the 

consent decree process.’’ 119 Cong. Rec. 

24,598 (1973) (statement of Senator 

Tunney.) 4 Rather:

[a]bsent a showing of corrupt failure of the 

government to discharge its duty, the Court, 

in making its public interest finding, should 

* * * carefully consider the explanations of 

the government in the competitive statement 

and its responses to comments in order to 

determine whether those explanations are 

reasonable under the circumstances.

United States v. Mid-America 

Dairymen, Inc., 1977 WL 4532, 1977–1 

Trade Cas. (CCH) ¶ 61,508, at 71,980 

(W.D. Mo. May 17, 1977). 

With respect to the adequacy of the 

relief secured by the decree, a court may 

not ‘‘engage in an unrestricted 

evaluation of what relief would best 

serve the public.’’ United States v. BNS, 

Inc., 858 F.2d 456, 462 (9th Cir. 1988) 

(citing United States v. Bechtel Corp.,

648 F.2d 660, 666 (9th Cir. 1981)); see

also Microsoft, 56 F.3d at 1460–62. 

Rather, the case law requires that:

[t]he balancing act of competing social and 

political interests by a proposed antitrust 

consent decree must be left, in the first 

instance, to the discretion of the Attorney 

General. The court’s role in protecting the 

public interest is one of insuring that the 

government has not breached its duty to the 

public in consenting to the decree. The court 

is required to determine not whether a 

particular decree is the one that will best 

serve society, but whether the settlement is 

‘‘within the reaches of the public interest.’’

More elaborate requirements might 

undermine the effectiveness of antitrust 

enforcement by consent decree.

Bechtel, 648 F.2d at 666 (emphasis 

added) (citations omitted).5

The proposed Final Judgment, should 

not be reviewed under a standard of 

whether it is certain to eliminate every 

anticompetitive effect of a particular 

practice or whether it mandates 

certainty of free competition in the 

future. Court approval of a final 

judgment requires a standard more 

flexible and less strict than the standard 

for a finding of liability. ‘‘[A] proposed 

decree must be approved even if it falls 

short of the remedy the court would 

impose on its own, as long as it falls 

within the range of acceptability or is 

‘within the reaches of public interest.’’’

United States v. American Tel. & Tel. 

Co., 552 F. Supp. 131, 151 (D.D.C. 1982) 

(quoting Gillette, 406 F. Supp. at 716), 

aff’d sub nom., Maryland v. United 

States, 460 U.S. 1001 (1983). See also

United States v. Alcan Aluminum Ltd.,

605 F. Supp. 619, 622 (W.D. Ky. 1985) 

(approving the consent decree even 

though the court would have imposed a 

greater remedy). 

Moreover, the Court’s role under the 

APPA is limited to reviewing the 

remedy in relationship to the violations 

that the United States has alleged in its 

Complaint, and does not authorize the 

Court to ‘‘construct [its] own 

hypothetical case and then evaluate the 

decree against that case.’’ Microsoft, 56 

F.3d at 1459. Because the ‘‘court’s 

authority to review the decree depends 

entirely on the government’s exercising 

its prosecutorial discretion by bringing 

a case in the first place,’’ it follows that 

‘‘the court is only authorized to review 

the decree itself,’’ and not to ‘‘effectively 

redraft the complaint’’ to inquire into 

other matters that the United States 

might have but did not pursue. Id. at 

1459–60.

VIII. Determinative Documents 

There are no determinative materials 

or documents within the meaning of the 

APPA that were considered by the 

United States in formulating the 

proposed Final Judgment.

Dated: January__, 2004

Respectfully submitted,

For Plaintiff United States:

Joshua H. Soven, Esq.,

Antitrust Division, U.S. Department of 

Justice, 600 E Street, NW., Suite 9500, 

Washington, DC 20530.

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Notices 6331

Final Judgment 

Whereas, plaintiff United States of 

America (‘‘United States’’), the District 

of Columbia, and the States of 

Connecticut, Illinois, Louisiana, 

Massachusetts, New York, Ohio, 

Pennsylvania, and Texas (‘‘plaintiff 

states’’), filed their Complaint on 

October 23, 2003, and the United States, 

plaintiff states, and defendants, First 

Data Corporation and Concord EFS, Inc., 

by their respective attorneys, have 

consented to the entry of this Final 

Judgment without trial: 

And whereas, this Final Judgment 

does not constitute any evidence against 

or admission by any party, regarding 

any issue of fact or law; 

And whereas, defendants agree to be 

bound by the provisions of this Final 

Judgment pending its approval by the 

Court; 

And whereas, the essence of this Final 

Judgment is the prompt and certain 

divestiture of certain rights or assets by 

First Data to assure that competition is 

not substantially lessened;

And whereas, the United States and 

plaintiff states require First Data to 

make a certain divestiture for the 

purpose of remedying the loss of 

competition alleged in the Complaint; 

And whereas, defendants have 

represented to the United States and 

plaintiff states that the divestiture 

required below can and will be made 

and that defendants will later raise no 

claim of hardship or difficulty as 

grounds for asking the Court to modify 

any of the divestiture provisions 

contained below; 

Now therefore, without trial and upon 

consent of the parties, it is ordered, 

adjudged and decreed:

I. Jurisdiction 

This Court has jurisdiction over the 

subject matter of and each of the parties 

to this action. The Complaint states a 

claim upon which relief may be granted 

against defendants under section 7 of 

the Clayton Act, as amended, 15 U.S.C. 

18. 

II. Definitions 

As used in this Final Judgment: 

A. ‘‘Acquirer’’ means the entity or 

entities to whom defendant First Data 

divests NYCE Holdings. 

B. ‘‘Concord’’ means Concord EFS, 

Inc., a Delaware corporation 

headquartered in Memphis, Tennessee, 

and its successors and assigns, its 

subsidiaries, divisions, groups, 

affiliates, partnerships, and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

C. ‘‘EFT network services’’ means the 

provision to financial institutions and 

retailers of shared electronic fund 

transfer network services for automatic 

teller machine (ATM) transactions, 

online and offline debit point-of-sale 

(POS) transactions, electronic benefits 

transfer, and point-of-banking 

transactions. 

D. ‘‘EFT processing services’’ means 

the provision to financial institutions of 

real-time processing services that 

support ATM driving and fullyautomated monitoring services, gateway 

access, and debit card issuance and 

authorization solutions. 

E. ‘‘First Data’’ means First Data 

Corporation, a Delaware corporation 

headquartered in Greenwood Village, 

Colorado, its successors and assigns, 

and its subsidiaries, divisions, groups, 

affiliates, partnerships, and joint 

ventures (excluding those entities not 

controlled by First Data), and their 

directors, officers, managers, agents, and 

employees. 

F.‘‘NYCE’’ means NYCE Corporation, 

a Delaware corporation headquartered 

in Montvale, New Jersey, and its 

successors and assigns, its subsidiaries, 

divisions, groups, affiliates, 

partnerships, and joint ventures 

(excluding those entities not controlled 

by NYCE), and their directors, officers, 

managers, agents, and employees. NYCE 

includes its EFT network service 

business (the NYCE Network) and its 

EFT processing services business. 

G. ‘‘NYCE Holdings’’ means, unless 

otherwise noted, all of First Data’s 

governance rights in NYCE, and First 

Data’s entire 64 percent ownership 

interest in NYCE, including all of 

NYCE’s rights, titles, and interests in the 

following: 

1. all tangible assets of NYCE, 

including facilities and real property; 

data centers; assets used for research, 

development, engineering or other 

support to NYCE, and any real property 

associated with those assets; 

manufacturing and sales assets relating 

to NYCE, including captial equipment, 

vehicles, supplies, personal property, 

inventory, office furniture, fixed assets 

and fixtures, materials, on- or off-site 

warehouses or storage facilities, and 

other tangible property or 

improvements; all licenses, permits and 

authorizations issued by any 

governmental organization relating to 

NYCE; all contracts, joint ventures, 

agreements, leases, commitments, and 

understandings pertaining to the 

operation of NYCE; supply agreements; 

all customer lists, accounts, and credit 

records; and other records maintained 

by NYCE in connection with its 

operations; and 

2. the intangible assets of NYCE, 

including all patents, licenses and 

sublicenses, intellectual property, 

copyrights, trademarks, computer 

software and related documentation, 

trade names, service marks, ‘‘bugs,’’

services names, technical information, 

know-how, trade secrets, drawings, 

blueprints, designs, design protocols, 

specifications for materials, 

specifications for parts and devices, data 

and results concerning historical and 

current research and development, 

quality assurance and control 

procedures, design tools and simulation 

capability, and all manuals and 

technical information NYCE provides to 

its employees, customers, suppliers, 

agents or licensees in connection with 

the NYCE’s operations. 

H. ‘‘Online debit’’ means PIN debit. 

I. ‘‘PIN’’ means a Personal 

Identification Number. 

J. ‘‘PIN debit’’ means a method of 

electronic card payment by which 

consumers purchase goods and services 

form merchants by swiping a bank card 

at a point-of-sale terminal and entering 

a PIN on a numeric keypad, upon which 

the purchase amount is debited from the 

customer’s bank account and transferred 

to the retailer’s bank.

K. ‘‘PIN debit network’’ Means a 

telecommunications and payment 

infrastructure that enables PIN debit 

transactions by providing the switch 

that connects merchants to consumers’

demand deposit accounts at banks. 

L. ‘‘PIN debit network services’’

means the PIN debit network and its 

performance of those related functions 

necessary for the efficient operation of 

the network, including promotion of 

brand names among consumers, 

merchants, and banks; establishment of 

rules and standards to govern the 

networks; and the setting of fees. 

III. Applicability 

A. This Final Judgment applies to 

First Data and Concord, as defined 

above, and all other persons in active 

concert or participation with any of 

them who receive actual notice of this 

Final Judgment by personal service or 

otherwise. 

B. Defendants shall require, as a 

condition of the sale or other 

disposition of all or substantially all of 

their assets or of lesser business units 

that include NYCE, that the purchaser 

agrees to be bound by the provision of 

this Final Judgment. 

IV. Divestiture 

A. Defendant First Data is ordered and 

directed, within one hundred fifty (150) 

calendar days after the Court’s signing 

of the Hold Separate Stipulation and 

Order in this matter, or five (5) days 

after notice of the entry of this Final 

6332 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Notices 

Judgment by the Court, whichever is 

later, to divest NYCE Holdings in a 

manner consistent with this Final 

Judgment to an Acquireer acceptable to 

the United States in its sole discretion, 

after consultation with plaintiff states. 

The United States, in its sole discretion, 

after consultation with plaintiff states, 

may agree to one or more extensions of 

this time period, not to exceed in total 

ninety (90) calendar days, and shall 

notify the Court in each such 

circumstance. Defendant First Data 

agrees to use its best efforts to divest 

NYCE Holdings as expeditiously as 

possible. 

B. In accomplishing the divestiture 

ordered by this Final Judgment, 

defendant First Data promptly shall 

make known, by usual and customary 

means, the availability of NYCE 

Holdings. Defendants shall inform any 

person making inquiry regarding a 

possible purchase of NYCE Holdings 

that it will be divested pursuant to this 

Final Judgment and provide that person 

with a copy of this Final Judgment. 

Defendant First Data shall offer to 

furnish to all prospective Acquirers, 

subject to customary confidentiality 

assurances, all information and 

documents relating to NYCE 

customarily provided in a due diligence 

process except such information or 

documents subject to the attorney-client 

or work-product privilege. Defendant 

First Data shall make available such 

information to the United States and 

plaintiff states at the same time that 

such information is made available to 

any other person. 

C. Defendant First Data shall provide 

perspective Acquirers of NYCE 

Holdings, the United States, and 

plaintiff states information relating to 

the personnel involved in the 

production, operation, research, 

development, and sales at NYCE to 

enable the Acquirer to make offers of 

employment. Defendants will not 

interfere with any negotiations by the 

Acquirer to employ any of NYCE’s 

employees whose responsibilities 

includes the production, operation, 

development, or sale of the products 

and services of NYCE. 

D. Defendant First Data shall permit 

prospective Acquirers of NYCE 

Holdings to have reasonable access to 

personnel and to make inspections of 

the physical facilities of NYCE; access to 

any and all environmental, zoning, and 

other permit documents and 

information; and access to any and all 

financial, operational, or other 

documents and information customarily 

provided as part of a due diligence 

process.

E. Defendant First Data shall warrant 

to the Acquirer of NYCE Holdings that 

each asset therein that was operational 

as of the date of filing to the Complaint 

in this matter will be operational on the 

date of divestiture. 

F. Defendants shall not take any 

action that will impede in any way the 

permitting, operation, or divestiture of 

NYCE or NYCE Holdings. 

G. Defendant First Data shall warrant 

to the Acquirer of NYCE Holdings that 

there are no material defects in the 

environmental, zoning, or other permits 

pertaining to the operation of NYCE, 

and following the sale of NYCE 

Holdings, defendants shall not 

undertake, directly or indirectly, any 

challenges to the environmental, zoning, 

or other permits relating to the 

operation of NYCE. 

H. Unless the United States otherwise 

consents in writing, after consultation 

with plaintiff states, the divestiture 

pursuant to Section IV, or by trustee 

appointed pursuant to Section V, of this 

Final Judgment, shall include the entire 

NYCE Holdings as defined in Section 

II(G) and shall be accomplished in such 

a way as to satisfy the United States, in 

its sole discretion, after consultation 

with plaintiff states, that NYCE can and 

will be used by the Acquirer as part of 

a viable, ongoing business engaged in 

the provision of EFT network services, 

including PIN debit network services, 

and EFT processing services. Divestiture 

of NYCE Holdings may be made to an 

Acquirer, provided that it is 

demonstrated to the sole satisfaction of 

the United States, in its sole judgment, 

after consultation with plaintiff states, 

that the divested asset will remain 

viable and that the divestiture will 

remedy the competitive harm alleged in 

the Complaint. The divestiture, whether 

pursuant to Section IV or Section V of 

this Final Judgment, 

1. Shall be made to an Acquirer that, 

in the United States’ sole judgment, 

after consultation with plaintiff states, 

has the intent and capability (including 

the necessary managerial, operational, 

technical, and financial capability) to 

compete effective in the provision of 

EFT network services, including PIN 

debit network services, and EFT 

processing services in the United States; 

and 

2. Shall be accomplished so as to 

satisfy the United States, in its sole 

discretion, after consultation with 

plaintiff states, that none of the terms of 

any agreement between an Acquirer and 

defendants give defendants the ability 

unreasonably to raise NYCE’s costs, to 

lower NYCE’s efficiency, or otherwise to 

interfere in the ability of NYCE to 

compete effectively. 

V. Appointment of Trustee to Effect 

Divestiture 

A. If defendant First Data has not 

divested NYCE Holdings within the 

time period specified in section IV(A), 

it shall notify the United States and 

plaintiff states of that fact in writing. 

Upon application of the United States, 

in its sole discretion, after consultation 

with plaintiff states, the Court shall 

appoint a trustee selected by the United 

States, and approved by the Court to 

effect the divestiture of NYCE Holdings. 

B. After the appointment of a trustee 

becomes effective, only the trustee shall 

have the right to sell NYCE Holdings. 

The trustee shall have the power and 

authority to accomplish the divestiture 

of NYCE Holdings to an Acquirer 

acceptable to the United States, in its 

sole judgment after consultation with 

plaintiff states, at such price and on 

such terms as are then obtainable upon 

reasonable effort by the trustee, subject 

to the provisions of Sections IV, V, and 

VI of this Final Judgment, and shall 

have such other powers as this Court 

deems appropriate. Subject to Section 

V(D) of this Final Judgment, the trustee 

may hire at the cost and expense of 

defendant First Data nay investment 

bankers, attorneys, or other agents, who 

shall be solely accountable to the 

trustee, reasonably necessary in the 

trustee’s judgment to assist in the 

divestiture. 

C. Defendants shall not object to a sale 

by the trustee on any ground other than 

the trustee’s malfeasance. Any such 

objections by defendants must be 

conveyed in writing to the United 

States, plaintiff states, and the trustee 

within ten (10) calendar days after the 

trustee has provided the notice required 

under Section VI. 

D. The trustee shall serve at the cost 

and expense of defendant First Data, on 

such terms and conditions as the NYCE 

approves, and shall account for all 

monies derived from the sale of NYCE 

Holdings and all costs and expenses so 

incurred. After approval by the Court of 

the trustee’s accounting, including fees 

for its services and those of any 

professionals and agents retained by the 

trustee, all remaining money shall be 

paid to defendant First Data and the 

trust shall then be terminated. The 

compensation of the trustee and any 

professionals and agents retained by the 

trustee shall be reasonable in light of the 

value of the asset to be divested and 

based on a fee arrangement providing 

the trustee with an incentive based on 

the price and terms of the divestiture 

and the speed with which it is 

accomplished, but timeliness is 

paramount.

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Notices 6333

E. Defendants shall use their best 

efforts to assist the trustee in 

accomplishing the required divestiture. 

The trustee and any consultants, 

accountants, attorneys, and other 

persons retained by the trustee shall 

have full and complete access to the 

personnel, books, records, and facilities 

of the business to be divested, and 

defendants shall develop financial and 

other information relevant to such 

business as the trustee may reasonably 

request, subject to customary 

confidentiality protection for trade 

secret or other confidential research, 

development, or commercial 

information. Defendants shall take no 

action to interfere with or to impede the 

trustee’s accomplishment of the 

divestiture. 

F. After its appointment, the trustee 

shall file monthly reports with the 

United States, plaintiff states, and the 

Court setting forth the trustee’s efforts to 

accomplish the divestiture ordered 

under this Final Judgment. To the extent 

such reports contain information that 

the trustee deems confidential, such 

reports shall not be filed in the public 

docket of the Court. Such reports shall 

include the name, address, and 

telephone number of each person who, 

during the preceding month, made an 

offer to acquire, expressed an interest in 

acquiring, entered into negotiations to 

acquire, or was contacted or made an 

inquiry about acquiring, NYCE Holdings 

and shall describe in detail each contact 

with any such person. The trustee shall 

maintain full records of all efforts made 

to divest NYCE Holdings. 

G. If the trustee has not accomplished 

such divestiture within six months after 

its appointment, the trustee shall 

promptly file with the Court a report 

setting forth (1) the trustee’s efforts to 

accomplish the required divestiture; (2) 

the reasons, in the trustee’s judgment, 

why the required divestiture has not 

been accomplished; and (3) the trustee’s 

recommendations. To the extent such 

reports contain information that the 

trustee deems confidential, such reports 

shall not be filed in the public docket 

of the Court. The trustee shall at the 

same time furnish such report to the 

United States and plaintiff states, and 

the United States and plaintiff states 

shall have the right to make additional 

recommendations consistent with the 

purpose of the trust. The Court 

thereafter shall enter such orders as it 

shall deem appropriate to carry out the 

purpose of the Final Judgment, which 

may, if necessary, include extending the 

trust and the term of the trustee’s 

appointment by a period requested by 

the United States. 

VI. Notice of Proposed Divestiture 

A. Within two (2) business days 

following execution of a definitive 

divestiture agreement, defendant First 

Data or the trustee, whichever is then 

responsible for effecting the divestiture 

required herein, shall notify the United 

States and plaintiff states of any 

proposed divestiture required by 

Section IV or V of this Final Judgment. 

If the trustee is responsible, it shall 

similarly notify defendants. The notice 

shall set forth the details of the 

proposed divestiture and list the name, 

address, and telephone number of each 

person not previously identified who 

offered or expressed an interest in or 

desire to acquire any ownership interest 

in NYCE Holdings, together with full 

details of the same. 

B. Within fifteen (15) calendar days of 

receipt by the United States and 

plaintiff states of such notice, the 

United States and plaintiff states may 

request from defendants, the proposed 

Acquirer, any other third party, or the 

trustee if applicable, additional 

information concerning the proposed 

divestiture, the proposed Acquirer, and 

any other potential Acquirer. 

Defendants and the trustee shall furnish 

any additional information requested 

within fifteen (15) calendar days of the 

receipt of the request, unless the parties 

shall otherwise agree.

C. Within thirty (30) calendar days 

after receipt of the notice or within 

twenty (20) calendar days after the 

United States and plaintiff states have 

been provided the additional 

information requested from defendants, 

the proposed Acquirer, any third party, 

and the trustee, whichever is later, the 

United States, in its sole discretion, after 

consultation with plaintiff states, shall 

provide written notice to defendants 

and the trustee, if there is one, stating 

whether or not it objects to the proposed 

divestiture. If the United States provides 

written notice that it does not object, the 

divestiture may be consummated, 

subject only to defendants’ limited right 

to object to the sale under section V(C) 

of the Final Judgment. Absent written 

notice that the United States does not 

object to the proposed Acquirer or upon 

objection by the United States, a 

divestiture proposed under Section IV 

or Section V shall not be consummated. 

Upon objection by defendants under 

Section V(C), a divestiture proposed 

under Section V shall not be 

consummated unless approved by the 

Court. 

VII. Financing 

Defendants shall not finance all or 

any part of any purchase made pursuant 

to Section IV or V of this Final 

Judgment. 

VIII. Hold Separate 

Until the divestiture required by this 

Final Judgment has been accomplished, 

defendants shall take all steps necessary 

to comply with the Hold Separate 

Stipulation and Order entered by this 

Court. Defendants shall take no action 

that would jeopardize the divestiture 

ordered by this Court. 

IX. Affidavits 

A. Within twenty (20) calendar days 

of the Court’s signing of the Hold 

Separate Stipulation and Order in this 

matter, and every thirty (30) calendar 

days thereafter until the divestiture has 

been completed under Section IV or V, 

defendants shall deliver to the United 

States and plaintiff states an affidavit as 

to the fact and manner of their 

compliance with Section IV or V of this 

Final Judgment. Each such affidavit 

shall include the name, address, and 

telephone number of each person who, 

during the preceding thirty days, made 

an offer to acquire, expressed an interest 

in acquiring, entered into negotiations 

to acquire, or was contacted or made an 

inquiry about acquiring, any interest in 

NYCE Holdings and shall describe in 

detail each contact with any such 

person during that period. Each such 

affidavit shall also include a description 

of the efforts defendants have taken to 

solicit buyers for the asset to be 

divested, and to provide required 

information to any prospective 

Acquirer, including the limitations, if 

any, on such information. Assuming the 

information set forth in the affidavit is 

true and complete, any objection by the 

United States, in its sole discretion, after 

consultation with plaintiff states, to 

information provided by defendants, 

including limitations on the 

information, shall be made within 

fourteen (14) calendar days of receipt of 

such affidavit. 

B. Within twenty (20) calendar days 

of the Court’s signing of the Hold 

Separate Stipulation and Order in this 

matter, defendants shall deliver to the 

United States and plaintiff states an 

affidavit that describes in reasonable 

detail all actions defendants have taken 

and all steps defendants have 

implemented on an ongoing basis to 

comply with Section VIII of this Final 

Judgment. Defendants shall deliver to 

the United States and plaintiff states an 

affidavit describing any changes to the 

efforts and actions outlined in 

defendants’ earlier affidavits filed 

pursuant to this section within fifteen 

(15) calendar days after the change is 

implemented. 

6334 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Notices 

C. Defendants shall keep all records of 

all efforts made to preserve and divest 

NYCE Holdings until one year after such 

divestiture has been completed. 

X. Compliance Inspection

A. For purposes of determining or 

securing compliance with this Final 

Judgment, or of determining whether 

the Final Judgment should be modified 

or vacated, and subject to any legally 

recognized privilege, from time to time 

duly authorized representatives of the 

United States, including consultants 

and other persons retained by the 

United States, shall, upon written 

request of a duly authorized 

representative of the Assistant Attorney 

General in charge of the Antitrust 

Division, and on reasonable notice to 

defendants be permitted: 

1. access during defendants’ office 

hours to inspect and copy, or at 

plaintiff’s option, to require defendants 

to provide copies of, all books, ledgers, 

accounts, records and documents in the 

possession, custody, or control of 

defendants, relating to any matters 

contained in this Final Judgment; and 

2. to interview, either informally or on 

the record, defendants’ officers, 

employees, or agents, who may have 

their individual counsel present, 

regarding such matters. The interviews 

shall be subject to the reasonable 

convenience of the interviewee and 

without restraint or interference by 

defendants. 

B. Upon the written request of a duly 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, defendants shall 

submit written reports, under oath if 

requested, relating to any of the matters 

contained in this Final Judgment as may 

be requested. 

C. No information or documents 

obtained by the means provided in this 

section shall be divulged by the United 

States to any person other than an 

authorized representative of the 

executive branch of the United States, 

except in the course of legal proceedings 

to which the United States is a party 

(including grand jury proceedings), or 

for the purpose of securing compliance 

with this Final Judgment, or as 

otherwise required by law. 

D. If at the time information or 

documents are furnished by defendants 

to the United States, defendants 

represent and identify in writing the 

material in any such information or 

documents to which a claim of 

protection may be asserted under Rule 

26(c)(7) of the Federal Rules of Civil 

Procedure, and defendants mark each 

pertinent page of such material, 

‘‘Subject to claim of protection under 

Rule 26(c)(7) of the Federal Rules of 

Civil Procedure,’’ then the United States 

shall give defendants ten (10) calendar 

days notice prior to divulging such 

material in any legal proceeding (other 

than a grand jury proceeding). 

XI. No Reacquisition 

Defendants may not reacquire any 

ownership interest in NYCE during the 

term of this Final Judgment. 

XII. Retention of Jurisdiction 

This Court retains jurisdiction to 

enable any party to this Final Judgment 

to apply to this Court at any time for 

further orders and directions as may be 

necessary or appropriate to carry to or 

construe this Final Judgment, to modify 

any of its provisions, to enforce 

compliance, and to punish violations of 

its provisions. 

XIII. Expiration of Final Judgment 

Unless this Court grants an extension, 

this Final Judgment shall expire ten 

years from the date of its entry. 

XIV. Public Interest Determination 

Entry of this Final Judgment is in the 

public interest.

Court approval subject to procedures of the 

Antitrust Procedures and Penalties Act, 15 

U.S.C. § 16.

United States District Judge

Case Number 1:03CV02169

Judge: Rosemary M. Collyer. 

Deck Type: Antitrust. 

Date Stamp: 10/23/2003.

United States of America, United States 

Department of Justice, Antitrust Division, 

600 E Street, NW., Suite 9500, Washington, 

DC 20530, 

State of Connecticut, Office of the Attorney 

General, 55 Elm Street, Hartford, CT 06106, 

State of Illinois, Office of the Illinois 

Attorney General, 100 W. Randolph Street, 

13th Floor, Chicago, IL 60601, 

State of Louisiana, Department of Justice, 301 

Main Street, Suite 1250, Baton Rouge, LA 

70801, 

Commonwealth of Massachusetts, Office of 

the Attorney General, One Ashburton 

Place, Boston, MA 02108, 

State of New York, Office of the Attorney 

General, 120 Broadway, Room 26C62, New 

York, NY 10271, 

State of Ohio, Attorney General’s Office, 150 

E. Gay Street, Colombus, OH 43215, 

State of Texas, Office of the Attorney 

General, P.O. Box 12548, Austin, TX 

78711,

and

District of Columbia, Office of the 

Corporation Counsel, 441 4th Street, NW., 

Suite 450–N, Washington, DC 20001, 

Plaintiffs,

v.

First Data Corporation, 6200 South Quebec 

Street, Greenwood Village, CO 80111,

and

Concord EFS, Inc., 2525 Horizon Lake Drive, 

Memphis, TN 38133, Defendants.

Verified Complaint 

The United States of America, acting 

under the direction of the Attorney 

General of the United States, and the 

states of Connecticut, Illinois, 

Louisiana, Massachusetts, New York, 

Ohio, and Texas and the District of 

Columbia (‘‘Plaintiff States’’), acting 

under the direction of their respective 

Attorneys General, or other authorized 

officials, bring this civil action to enjoin 

the proposed merger of First Data 

Corporation (‘‘First Data’’) and Concord 

EFS, Inc. (‘‘Concord’’), and allege as 

follows: 

1. First Data’s acquisition of Concord 

would combine the largest and thirdlargest point-of-sale (‘‘POS’’) PIN debit 

networks in the United States. POS PIN 

debit networks are the 

telecommunications and payment 

infrastructure that connects merchants 

to consumers’ demand deposit accounts 

at banks. These networks enable 

consumers to purchase goods and 

services from merchants through PIN 

debit transactions by swiping their bank 

card at a merchant’s terminal and 

entering a Personal Identification 

Number, or PIN. Within seconds, the 

purchase amount is debited from the 

customer’s bank account and transferred 

to the retailer’s bank. 

2. PIN debit networks provide an 

increasingly important method of 

payment for consumers and retailers 

because PIN debit is the least expensive, 

most efficient, and most secure form of 

card payment. In 2002, customers 

purchased more than $150 billion in 

goods and services using PIN debit 

networks. PIN debit transaction volume 

has grown by more than 20 percent 

annually over the past 5 years. Today, 

merchants accept PIN debit transactions 

at more than one million retail locations 

in the United States. 

3. Concord operates STAR, the 

nation’s largest PIN debit network. 

STAR currently handles approximately 

half of all PIN debit transactions in the 

United States. First Data owns a 

controlling interest in NYCE, the 

nation’s third-largest PIN debit network. 

4. PIN debit networks compete for 

merchants to accept and route 

purchases over their networks. A 

significant number of banks that issue 

debit cards participate in more than one 

PIN debit network. In some cases, this 

allows merchants to choose the network 

over which to route a transaction; 

merchants made this choice based on a 

variety of factors, including price and 

network performance. Large merchants 

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Notices 6335

usually accept the debit cards of many 

PIN debit networks. 

5. First Data’s acquisition of Concord 

would substantially reduce competition 

among the PIN debit networks for retail 

transactions in violation of section 7 of 

the Clayton Act, 15 U.S.C. 18. The 

merger would make prices for PIN debit 

network services to merchants less 

competitive. Merchants will pass on at 

least some of the higher costs of PIN 

debit transactions by raising the prices 

of their goods and services, to the 

detriment of tens of millions of 

consumers throughout the United 

States. The United States and Plaintiff 

States therefore seek an order 

permanently enjoining the merger. 

I. Jurisdiction and Venue 

6. This action is filed by the United 

States under section 15 of the Clayton 

Act, 15 U.S.C. 25, to prevent and 

restrain the Defendants from violating 

section 7 of the Clayton Act, 15 U.S.C. 

18. 

7. The Plaintiff States bring this action 

under section 16 of the Clayton Act, 15 

U.S.C. 26, to prevent and restrain the 

Defendants from violation section 7 of 

the Clayton Act, 15 U.S.C. 18. The 

Plaintiff States, by and through their 

respective Attorneys General, or other 

authorized officials, bring this action in 

their sovereign capacities and as parens 

patriae on behalf of the citizens, general 

welfare, and economy of each of their 

states. 

8. First Data and Concord are engaged 

in interstate commerce and in activities 

substantially affecting interstate 

commerce. First Data and Concord 

provide PIN debit network services 

throughout the United States. First 

Data’s and Concord’s PIN debit 

networks are engaged in a regular, 

continuous, and substantial flow of 

interstate commerce, and have had a 

substantial effect upon interstate 

commerce as well as commerce in each 

of the Plaintiff States. The Court has 

jurisdiction over this action pursuant to 

sections 12 and 15 of the Clayton Act, 

15 U.S.C. 22, 25, and 28 U.S.C. 1331, 

1337. 

9. First Data and Concord transact 

business and are found in the District of 

Columbia, Venue is proper under 

Section 12 of the Clayton Act, 15 U.S.C. 

22, and 28 U.S.C. 1391(c).

II. The Defendants and the Transaction 

10. First Data is a corporation 

organized and existing under the laws of 

Delaware. In 2002, First Data reported 

total worldwide revenues of $7.6 

billion. First Data is organized into four 

business groups: merchant services, 

payment services, card issuer services, 

and emerging payments. First Data’s 

card issuing business offers a 

comprehensive set of services to banks 

that issue debit and credit cards. First 

Data’s payment services group includes 

Western Union, the leading provider of 

consumer-to-consumer money transfer 

services. 

11. First Data’s merchant services 

segment, which primarily consists of 

NYCE and the merchant processing and 

acquiring business, was responsible for 

$2.8 billion of the company’s revenues 

in 2002. First Data owns 64 percent of 

NYCE Corporation, which operates the 

NYCE PIN debit and ATM network. 

Four large banks own the remaining 36 

percent of NYCE Corporation. In 

addition, First Data is the nation’s 

leading merchant processor. A merchant 

processor connects merchants to the 

various payment networks, ensuring 

that each transaction is sent to the 

appropriate network. First Data also acts 

as a merchant acquirer; merchant 

acquirers sponsor merchants into the 

PIN debit networks, facilitate 

settlement, and assume financial 

responsibility for the transactions. First 

Data provides merchant processing and 

acquiring services independently and 

through a series of alliances and 

partnerships with major financial 

institutions. 

12. Concord is a corporation 

organized and existing under the laws of 

the state of Delaware. Concord’s 

revenues in 2002 totaled nearly $2 

billion. Concord operates STAR, the 

largest PIN debit and ATM network. The 

STAR network is the result of a series 

of acquisitions of other large networks 

over the past several years. Concord 

bought MAC in 1999 and Cash Station 

in 2000. Concord then acquired STAR 

in 2001; STAR itself had acquired the 

Honor network, which in turn had 

acquired MOST. Concord is also a 

leading merchant processor and 

acquirer and provides an array of 

services to debit card issuers and ATM 

owners. 

13. On April 1, 2003, First Data and 

Concord entered into an Agreement and 

Plan of Merger, pursuant to which First 

Data will acquire Concord in an allstock transaction valued at 

approximately $7 billion. 

III. The Relevant Market 

A. Description of the Product 

14. In the late 1970s, bank 

consortiums formed numerous regional 

electronic funds transfer (‘‘EFT’’) 

networks to enable their customers to 

withdraw funds from ATMs owned by 

a variety of different banks. The EFT 

networks were first used to handle PIN 

debit purchases at retailers in the early 

1980s. It was not until the mid-1990s, 

however, that PIN debit became a 

popular method of payment for 

consumers to purchase goods and 

services at retail stores. PIN debit 

transaction volume has grown 

substantially over the past five years 

due to merchant and consumer 

recognition of the advantages of PIN 

debit as a form of payment. Today, over 

500 million PIN debit transactions are 

made every month. Nearly threequarters of all PIN debit purchases occur 

at thirty large retail chains. 

15. Many EFT networks, including 

those operated by First Data and 

Concord, route both ATM and PIN debit 

transactions. Some companies, however, 

operate separate ATM and PIN debit 

networks. For example, while Interlink 

is Visa’s PIN debit network, Visa 

operates a separate ATM network called 

Plus.

16. A PIN debit network serves as the 

critical electronic switch connecting a 

network’s participating financial 

institutions with merchants that accept 

the network. PIN debit networks 

provide one of the primary means for 

consumers to access the money in their 

checking accounts. A PIN debit network 

also performs a number of related 

functions necessary for the efficient 

operation of the network. For example, 

PIN debit networks: Promote their brand 

names among consumers, merchants, 

and banks; establish rules and standards 

to govern their networks; and set fees 

and assessments for use of the network’s 

products and services. Collectively, 

these products and services are ‘‘PIN 

debit network services.’’

17. To execute a PIN debit 

transaction, a customer swipes a debit 

card at a POS terminal and enters a PIN 

on a numeric keypad. After the PIN is 

entered, the POS terminal transmits the 

transaction and bank card information 

to a ‘‘merchant processor,’’ which acts 

as a conduit between the merchant and 

the various PIN debit networks. The 

merchant processor sends the 

information to the appropriate PIN debit 

network, which switches the transaction 

to the issuing bank’s ‘‘card processor.’’

The card processor accesses the bank’s 

account database to verify the PIN and 

ensure that the customer has sufficient 

funds to pay for the purchase. The card 

processor sends an electronic message 

to the PIN debit network accepting or 

rejecting the transaction. The PIN debit 

network switches this reply back to the 

merchant through the merchant 

processor to complete the transaction. 

The entire authorization process takes 

place electronically in just seconds. At 

the same time, the merchant acquirer 

6336 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Notices 

‘‘purchases’’ the transaction from the 

merchant, guaranteeing payment and 

facilitating settlement of the transaction. 

18. A transaction can only be routed 

over a particular PIN debit network if 

the customer’s bank issues a debit card 

that participates in that network. This 

participation is signified by placing the 

network’s logo, or ‘‘bug,’’ on the card. 

To provide their customers with 

seamless access to the widest array of 

merchants, a significant number of 

banks place the bug of more than one 

PIN debit network on their cards. Many 

networks, including NYCE, have a 

‘‘priority routing’’ rule that allows the 

card issuer to designate which PIN debit 

network will serve as the primary 

network for PIN debit transactions when 

the bank bugs its cards with two or more 

networks. STAR, by contrast, imposes a 

network routing rule, requiring most 

transactions on cards bearing the STAR 

bug to be routed over the STAR 

network, regardless of whether there are 

other bugs on the card. 

19. PIN debit networks charge both 

the merchant and the card-issuing bank 

a ‘‘switch’’ fee for the network switching 

services provided by the network. This 

fee typically ranges from 2 cents to 4 

cents per transaction. The PIN debit 

networks also set an ‘‘interchange’’ fee, 

which is a fee paid by the merchant to 

the PIN debit network. The PIN debit 

network then passes through the 

interchange fee to the card-issuing bank 

as compensation for permitting access to 

the consumer’s bank account. The 

interchange fee is normally at least 4–

5 times as large as the switch fee, 

ranging from as low as 10 cents to as 

high as 45 cents, depending on the 

network, the merchant, and the size of 

the transaction. Consequently, the 

merchant’s total charge for each PIN 

debit transaction is the interchange fee 

plus the switch fee. 

20. At some networks, such as NYCE 

and Interlink, an advisory board 

representing the network’s bank 

members has substantial authority over 

setting the network’s interchange rates 

and determining the network’s rules, 

including rules concerning the routing 

of PIN debit transactions.

21. The PIN debit network services 

market is characterized by significant 

network effects. Financial institutions 

are more likely to join networks that are 

accepted by many merchants. 

Conversely, merchants are more likely 

to accept networks that have many large 

financial institutions as members 

because the value of a particular PIN 

debit network depends in great measure 

on the breadth of its acceptance and use. 

22. Many debit cards can also execute 

‘‘signature’’ debit transactions, in 

addition to PIN debit transactions. 

Signature debit transactions are 

authenticated like credit card 

transactions, with the customer signing 

for identification rather than entering a 

PIN. Visa and MasterCard developed the 

only two signature debit networks from 

their existing credit card infrastructure. 

In contrast to a PIN debit transaction, in 

which the funds are immediately 

transferred from the customer’s account, 

a signature debit transaction generally 

takes twenty-four to forty-eight hours to 

settle. 

23. PIN debit networks offer a number 

of substantial advantages to consumers 

and merchants that distinguish them 

from signature debit networks. PIN debit 

networks are generally considerably less 

expensive to merchants than signature 

debit networks, due to significantly 

lower interchange rates. PIN debit 

networks also provide a more secure 

method of payment than signature debit 

because it is much easier to forge a 

person’s signature than to obtain an 

individual’s PIN; consequently, fraud 

rates for PIN debit are substantially 

lower than for signature debit. Because 

of the increased security of PIN debit, 

there is no need for the complicated and 

expensive charge-back procedures that 

allow consumers to challenge signature 

debit transactions, thereby saving 

merchants additional time and money. 

PIN debit transactions also settle 

instantaneously, guaranteeing the 

merchant ready access to its receipts, 

whereas signature debit transactions 

usually take a day or two to settle. 

Finally, PIN debit networks allow for 

faster execution than signature debit 

networks. With a PIN debit transactions, 

customers can enter their PIN as soon as 

the first product is scanned. By contrast, 

customers cannot sign for signature 

debit transactions until after the entire 

order is totaled, prolonging the checkout 

process. 

24.PIN debit networks also allow 

individuals to receive cash back at the 

register when making a purchase, a 

popular feature with many consumers. 

Customers cannot receive cash back 

when making a signature debit 

purchase. Today, customers request 

cash back in approximately 20 percent 

of all PIN debit transactions. Customers 

also value the additional security 

provided by PIN verification as opposed 

to signature. 

B. Relevant Product Market 

25. The relevant product market 

affected by this transaction is the 

provision of PIN debit network services. 

A hypothetical monopolist could 

profitably impose a small but significant 

and nontransitory increase in the price 

of all PIN debit network services. 

26. Signature debit networks are not 

in the same product market as PIN debit 

networks because signature debit 

networks are substantially more 

expensive and have inferior 

functionality and features. PIN debit 

networks would remain substantially 

less expensive than signature debit or 

credit care networks even after a small 

but significant nontransitory increase in 

price. Merchants would continue to 

purchase and promote the use of PIN 

debit network services because of the 

low fraud rate, corresponding lack of 

charge-backs, speed of execution at the 

register, and the cash back feature that 

many customers demand. As the 

President of First Data Merchant 

Services testified, PIN debit ‘‘is still the 

lowest-cost, most efficient, most secure 

transaction there is out there in 

electronic transactions.’’

27. Merchants would not defeat a 

small but significant and nontransitory 

increase in the price of PIN debit 

network services by requiring or 

encouraging their customers to switch 

from PIN debit to signature debit or 

other payment methods. 

28. The provision of PIN debit 

network services is a line of commerce 

and a relevant product market within 

the meaning of section 7 of the Clayton 

Act, 15 U.S.C. 18. 

D. Relevant Geographic Market 

29. First Data and Concord compete 

with each other throughout the United 

States. Merchants in the United States 

could not switch to providers of PIN 

debit network services located outside 

of the United States in the event of a 

small but significant nontransitory 

increase in the price by PIN debit 

networks in the United States. While 

certain networks are stronger in 

particular areas of the country, the 

largest networks essentially operate on a 

national scale. Accordingly, the United 

States is a relevant geographic market 

within the meaning of Section 7 of the 

Clayton Act, 15 U.S.C. 18. 

IV. Market Concentration 

30. The relevant market is highly 

concentrated and would become 

significantly more concentrated as a 

result of the proposed transaction. As of 

March 2003, the most recent period for 

which data is available, Concord 

accounted for approximately 56 percent 

of PIN debit transactions, while First 

Data had approximately a 10 percent 

share. The top four networks—STAR, 

Visa’s Interlink, NYCE, and Pulse—

routed over 90 percent of all PIN debit 

transactions. Using a standard measure 

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Notices 6337

of market concentration called the 

‘‘HHI’’ (defined and explained in 

Appendix A), the market is highly 

concentrated, with a pre-merger HHI of 

approximately 3590. First Data’s 

acquisition of Concord would increase 

the HHI by approximately 1120, 

resulting in a post-merger HHI of 

approximately 4710. While STAR has 

recently lost some significant bank 

contracts to Interlink and NYCE, under 

even the most conservative estimate of 

future market shares the combined firm 

would have approximately a 45 percent 

post-merger share. Taking into account 

these lost contracts, the PIN debit 

network services market remains highly 

concentrated and would become 

substantially more concentrated as a 

result of the merger, with a post-merger 

HHI greater than 3000. 

V. Anticompetitive Effects 

A. The Proposed Transaction Will Likely 

Substantially Reduce Competition 

Among PIN Debit Networks 

31. First Data’s acquisition of Concord 

will combine the largest and thirdlargest PIN debit networks and enable 

the resulting network to raise prices and 

to reduce levels of services to 

merchants. 

32. PIN debit networks compete for 

merchant business by attempting to 

convince merchants to accept their 

networks and to route to their networks 

when there is a choice of routing 

options. PIN debit networks also 

compete for merchants by improving 

their networks’ transmission speed, 

limiting network down-time, and 

reducing the number of improperly 

rejected transactions. Merchants’ ability 

to choose which networks to accept at 

their stores and their control over the 

routing of some transactions acts as a 

constraint on the price of PIN debit 

network services to merchants. 

33. While most large merchants 

generally accept all of the PIN debit 

networks, retailers can and have used 

the threat of dropping a network to 

obtain lower prices. For example, in 

2001 Visa announced a substantial rate 

increase for its PIN debit network, 

Interlink; STAR, and later NYCE, 

followed by announcing comparable 

price increases. A number of large 

retailers responded by stating that if 

Interlink implemented the planned 

price increase, they would no longer 

accept Interlink. In response, Interlink 

delayed and substantially scaled back 

its proposed price increase. Then STAR 

delayed and reduced its planned price 

increase to remain competitive. 

Similarly, NYCE concluded in an 

internal document that its ‘‘previously 

announced pricing [was] now out of 

balance with new market realities’’ and 

followed suit. 

34. Combining STAR and NYCE will 

make it substantially more difficult for 

merchants to use the possibility of 

dropping a network to prevent price 

increases. The larger the network, the 

more risky it is for a merchant to drop 

that network because of the increased 

likelihood of rejected transactions, 

delays at check-out lines, customer 

confusion and backlash, lost sales, and 

customer use of other forms of payment 

that are more costly to the merchant. 

35. The PIN debit networks take into 

account the merchants’ competitive 

reactions when they make decisions 

about pricing. Earlier this year, NYCE 

was considering raising interchange 

rates to attract financial institutions to 

the network. NYCE’s internal analysis of 

the market recognized, however, that 

‘‘[t]aking a leadership role in POS 

interchange does not come without risk 

to the transaction growth engine of the 

NYCE Network and its current revenue 

stream * * * ’’[P]recedent has been set 

via major retailers in the past dropping 

or threatening to drop a payment card 

network due to pricing. * * * [T]he 

risks are material that certain retailers or 

segments may decide to ‘send a 

message’ and simply stop taking NYCEbranded cards for purchases.’’

(emphasis added)

36. First Data’s acquisition of Concord 

will also reduce competition in the PIN 

debit market by limiting merchants’

ability to route transactions to the leastcost network. Major supermarkets and 

mass merchandisers have obtained 

superior prices and levels of service by 

routing, or threatening to route, 

transactions away from NYCE to STAR 

and vice versa. After the merger, 

merchants will no longer be able to seek 

lower prices and improved service from 

the combined firm by playing off NYCE 

and STAR against each other in this 

manner. 

37. An internal merger planning 

document acknowledged the likely 

effect of First Data’s acquisition of 

Concord on pricing in the PIN debit 

network services market: The 

‘‘[c]ombination of NYCE and STAR 

allows FDC [First Data Corp.] more 

leeway to set market pricing.’’

38. Interchange fees have risen 

dramatically in the past several years as 

the PIN debit network services market 

has become more highly concentrated. 

First Data’s acquisition of Concord will 

likely exacerbate this trend toward 

higher pricing by further reducing 

competition in the market. Merchants 

will be forced to pass on a significant 

portion of the higher fees to tens of 

millions of consumers, in the form of 

higher prices for all goods and services. 

Merchants do not typically pass through 

increase costs for particular forms of 

payment on a per-transaction basis. 

39. Any efforts the combined First 

Data/Concord might make to expand 

PIN debit usage after the merger would 

not prevent the company from raising 

prices to merchants that already accept 

PIN debit. PIN debit networks are able 

to charge different prices to merchants 

based on the value of the network to the 

particular company or type of merchant. 

For example, First Data and Concord 

have both recently offered substantial 

discounts to quick-service restaurants to 

encourage them to deploy PIN pads at 

all of their locations. At the same time, 

First Data and Concord have 

dramatically raised their merchant fees 

to the market as a whole. This ability to 

engage in price discrimination will 

facilitate First Data’s exercise of market 

power post-merger by allowing it to 

simultaneously raise prices to 

merchants that already accept PIN pads 

and cut special deals to attract new 

market segments to the network. 

B. Lack of Countervailing Factors 

40. It is unlikely that entry or 

expansion in the PIN debit network 

services market will occur in a timely 

manner or on a scale sufficient to undo 

the competitive harm that the merger 

will produce. Entry and expansion are 

difficult because they require large, 

sunk investments to attract bank 

members, and, to a lesser degree, 

participating merchants. Coordinate 

development of both bank members and 

merchant acceptance is critical because 

the utility of a particular PIN debit 

network to customers, banks, and 

merchants depends not only on the cost 

and features of the card, but also on the 

breadth of its acceptance and use. These 

network effects that characterize the PIN 

debit network services market make it 

difficult for small networks to 

significantly expand their market share. 

41. Banks would have little incentive 

to join a new or small network that was 

attempting to expand market share by 

offering lower interchange rates to 

merchants. To the contrary, a bank 

would only have an incentive to join a 

network if it offered higher interchange 

rates. Without such bank participation, 

a network’s attempts to expand would 

prove fruitless. Moreover, financial 

institutions benefit from a market 

structure characterized by a limited 

number of significant PIN debit 

networks and face fewer competitive 

constraints to setting higher prices to 

merchants. 

6338 Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Notices 

42. The PIN debit networks have 

adopted rules and policies that further 

increase the cost for a network to 

expand by developing bank and 

merchant participation. For example, 

the networks’ priority routing rules 

make entry more difficult and less 

likely. Even if a network succeeds in 

convincing banks to add its bug to the 

banks’ debit cards, the network is 

unlikely to see many transactions 

because of the priority routing rules. In 

addition, STAR requires its member 

banks to use STAR for both ATM and 

PIN debit network services; this all-ornothing requirement makes it more 

difficult for competing networks to 

convince banks to participate in their 

network. Finally, banks that want to act 

as acquirers for STAR ATM and PIN 

debit transactions must issue cards that 

participate in the STAR network. 

Because a significant number of banks 

have substantial ATM or merchant 

acquiring businesses, the STAR rule 

further inhibits potential expansion by 

competing PIN debit networks. After the 

merger, the application of any or all of 

these rules to First Data/Concord’s 

combined network would inhibit entry 

or expansion by other PIN debit 

networks. 

43. Finally, the combination of First 

Data’s and Concord’s merchant 

processing businesses with their PIN 

debit networks will raise barriers to 

entry. The combined First Data/Concord 

will process more than half of all PIN 

debit transactions. As the merchant 

processor, the merged firm will have 

significant control over which network 

routes a transaction on a double-bugged 

card. As the owner of the dominant PIN 

debit network, First Data will have a 

significant incentive to exercise this 

control after it acquires Concord, 

inhibiting other PIN debit networks 

from expanding their presence in the 

market. 

VI. Violation Alleged 

44. The United states and the Plaintiff 

States hereby incorporate paragraphs 1 

through 43.

45. First Data’s acquisition of Concord 

would likely substantially lessen 

competition in the provision of PIN 

debit network services, in violation of 

section 7 of the Clayton Act, 15 U.S.C. 

18. The transaction would likely have 

the following effects, among others: 

(a) competition between First Data 

and Concord in the provision of PIN 

debit network services would be 

eliminated; 

(b) competition generally in the 

provision of PIN debit network services 

would be eliminated or substantially 

lessened; 

(c) prices of PIN debit network 

services to merchants that currently use 

them would likely increase to levels 

above those that would prevail absent 

the merger, forcing merchants to pass on 

these increased costs in the form of 

higher prices for all goods and services 

to tens of millions of consumers; and 

(d) quality in the provision of PIN 

debit network services would likely 

decrease to levels below those that 

would prevail absent the merger. 

Request for Relief 

46. The United States and the Plaintiff 

States request: 

(a) that the proposed acquisition be 

adjudged to violate section 7 of the 

Clayton Act, 15 U.S.C. 18; 

(b) that the Defendants be 

permanently enjoined and restrained 

from carrying out the Agreement and 

Plan of Merger dated April 1, 2003, or 

from entering into or carrying out any 

agreement, understanding, or plan by 

which First Data would merge with or 

acquire Concord, its capital stock, or 

any of its assets; 

(c) that the United States and the 

Plaintiff States be awarded costs of this 

action; 

(d) that as the Court may deem 

appropriate, the Plaintiff States be 

awarded reasonable attorneys fees and 

costs as permitted by law; and 

(e) that the United States and the 

Plaintiff States have such other relief as 

the Court may deem just and proper.

Dated: October 23, 2003.

For Plaintiff United States:

R. Hewitt Pate, 

Assistant Attorney General (D.C. Bar No. 

473598).

Deborah P. Majoras, 

Deputy Assistant Attorney General (D.C. Bar 

No. 474239).

J. Robert Kramer, II, 

Director of Operations.

Renata B. Hesse, 

Chief (Calif. Bar No. 148425), N. Scott Sacks, 

Assistant Chief (D.C. Bar No. 913087), 

Networks & Technology Enforcement 

Section.

Respectfully submitted,

Joshua H. Soven, 

(D.C. Bar No. 436633).

Craig W. Conrath, 

Minnesota Bar No. 18569), Counsel of Record

Trail Attorneys, U.S. Department of Justice, 

Antitrust Division, Networks & Technology 

Enforcement Section, 600 E Street, NW 

Suite 9500, Washington, DC 20530, (202) 

307–6200.

For Plaintiff State of Connecticut

Richard Blumenthal, 

Attorney General.

Steven M. Rutstein, 

Assistant Attorney General,

Department Head/Antitrust Department,

Federal Bar No. ct09086.

Rachael O. Davis, 

Assistant Attorney General,

Antitrust Department,

Federal Bar No. ct07411.

DC Bar No. 41357 (inactive).

55 Elm Street, 

Hartford, Connecticut 06106, Tel: (860) 808–

5040. Fax: (860) 808–5033.

For Plaintiff State of Illinois,

Lisa Madigan, 

Attorney General.

Robert W. Pratt, 

IL ARDC NO. 2247593,

Chief, Antitrust Bureau.

Liva S. West, 

IL ARDC NO. 6276883, Assistant Attorney 

General, Office of the Illinois Attorney 

General, 100 W. Randolph Street, 13th Floor, 

Chicago, IL 60601, Tel: 313–814–6021. Fax: 

312–814–1154.

October 20, 2003.

Louisiana’s Signature Page for the FDC/

Concord merger opposition case

Attorney General,

Richard P. Ieyoub.

Jane Bishop Johnson, #21651, 

Louisiana Department of Justice, 301 Main 

Street, Suite 1250, Baton Rouge, LA 70801, 

(225) 342–2754, (225) 342–96537 (FAX).

For the Plaintiff, the Commonwealth of 

Massachusetts

Thomas F. Reilly, 

Attorney General

Betsy S. Whittey, BBO#645593, 

Assistant Attorney General, Consumer 

Protection and Antitrust Division, One 

Ashburton Place, Boston, MA 02108, 617–

727–2200 ext. 2968, 617–727–5765.

For Plaintiff State of New York: 

Office of the Attorney General

Jay L. Himes, 

Chief, Antitrust Bureau,

N.Y., Attorney No., 1236934

Richard E. Grimm, 

Assistant Attorney General, N.Y. Attorney 

No. 1337138.

Antitrust Bureau, 

Office of the Attorney General, 120 Broadway 

Room 26C62, New York, New York 10271–

0332, Tel: (212) 416–8282, (212) 416–8280, 

Fax: (212) 416–6015.

United States of America, et al. (State of 

Ohio) v. First Data Corporation and Concord 

EFS, Inc.

For Plaintiff State of Ohio.

Jim Petro, 

Attorney General,

State of Ohio.

Mitchell L. Gentile, 

OH Bar Number 0022274,

Principal Attorney,

Antitrust Section,

Ohio Attorney General’s Office,

150 E. Gay Street,

Columbus, OH 43215–3031,

Tel: 614–466–4328,

Fax: 614–995–0266.

For Plaintiff State of Texas.

Greg Abbott, 

Federal Register / Vol. 69, No. 27 / Tuesday, February 10, 2004 / Notices 6339

Attorney General of Texas.

Barry R. McBee, 

First Assistant Attorney General.

Edward D. Burbach, 

Deputy Attorney General for Litigation.

Mark Tobey, 

Assistant Attorney General,

Chief, Antitrust Division.

Rebecca Fisher, 

Assistant Attorney General,

State Bar No. 07057800.

Office of the Attorney General, P.O. Box 

12548, Austin, Texas 78711–2548, 512/

463–2185, 512/320–0975 (Facsimile).

Signature by the State of Texas of 

Complaint in United States of America, et al,

v. First Data Corporation and Concord EFS, 

Inc.

Robert J. Spagnoletti, 

Corporation Counsel, DC.

Charlotte W. Parker (Bar #186205), 

Deputy Corporation Counsel,

Civil Division.

Bennett Rushkoff (Bar #386925), 

Senior Counsel,

Don Allen Resnikoff (Bar #386688),

Assistant Corporation Counsel,

Anika Sanders Cooper (Bar #458863),

Assistant Corporation Counsel.

Office of the Corporation Counsel, 441 4th 

Street, NW., Suite 450–N, Washington, DC 

20001 (202) 727–4170.

Attorneys for the District of Columbia.

Appendix A 

Herfindahl-Hirschman Index 

‘‘HHI’’ means the Herfindahl-Hirschman 

Index, a commonly accepted measure of 

market concentration. It is calculated by 

squaring the market share of each firm 

competing in the market and then summing 

the resulting numbers. For example, for a 

market consisting of four firms with shares of 

30%, 30%, 20%, and 20%, the HHI is 2600 

(302 + 302 + 202 + 202 = 2600). (Note: 

Throughout the Compliant, market share 

percentages have been rounded to the nearest 

whole number, but HHIs have been estimated 

using unrounded percentages in order to 

accurately reflect the concentration of the 

various markets.) The HHI takes into account 

the relative size distribution of the firms in 

a market and approaches zero when a market 

consists of a large number of small firms. The 

HHI increases both as the number of firms in 

the market decreases and as the disparity in 

size between those firms increases. 

Markets in which the HHI is between 1000 

and 1800 points are considered to be 

moderately concentrated, and those in which 

the HHI is in excess of 1800 points are 

considered to be highly concentrated. See

Horizontal Merger Guidelines ¶ 1.51 (revised 

Apr. 8, 1997). Transactions that increase the 

HHI by more than 100 points in concentrated 

markets presumptively raise antitrust 

concerns under the guidelines issued by the 

U.S. Department of Justice and Federal Trade 

Commission. See id.

[FR Doc. 04–2688 Filed 2–9–04; 8:45 am] 

BILLING CODE 4410–11–M

DEPARTMENT OF LABOR

Employment And Training 

Administration 

[TA-W–53,875] 

Cascada De Mexico, Inc., a Division of 

Cascade West Sportswear, Inc., 

Puyallup, Washington; Notice of 

Termination of Investigation 

Pursuant to section 221 of the Trade 

Act of 1974, as amended, an 

investigation was initiated on December 

23, 2003 in response to a petition filed 

by a company official on behalf of 

workers of Cascada de Mexico, Inc., a 

division of Cascade West Sportswear, 

Inc., Puyallup, Washington. 

The investigation revealed that the 

subject firm can be certified upon an 

amendment to a previous certification 

(TA–W–53,873). The workers at the 

subject firm were in support of the 

production facility previously certified 

under (TA–W–53,873). Consequently 

the investigation has been terminated.

Signed at Washington, DC, this 12th day of 

January, 2004. 

Richard Church, 

Certifying Officer, Division of Trade 

Adjustment Assistance.

[FR Doc. E4–240 Filed 2–9–04; 8:45 am] 

BILLING CODE 4510–13–P

DEPARTMENT OF LABOR

Employment and Training 

Administration 

[TA–W–53,874] 

Cascade West Sportswear, Inc., 

Puyallup, Washington; Notice of 

Termination of Investigation 

Pursuant to section 221 of the Trade 

Act of 1974, as amended, an 

investigation was initiated on December 

23, 2003 in response to a petition filed 

by a company official on behalf of 

workers of Cascade West Sportswear, 

Inc., Puyallup, Washington. 

The investigation revealed that the 

subject firm can be certified upon an 

amendment to a previous certification 

(TA–W–53,873). The workers at the 

subject firm were in support of the 

production facility previously certified 

under (TA–W–53,873). Consequently 

the investigation has been terminated.

Signed at Washington, DC, this 12th day of 

January, 2004. 

Richard Church, 

Certifying Officer, Division of Trade 

Adjustment Assistance.

[FR Doc. E4–242 Filed 2–9–04; 8:45 am] 

BILLING CODE 4510–13–P

DEPARTMENT OF LABOR

Employment And Training 

Administration 

[TA–W–53,042] 

Solon Manufacturing Co., Rhinelander, 

Wisconsin; Amended Certification 

Regarding Eligibility To Apply for 

Worker Adjustment Assistance and 

Alternative Trade Adjustment 

Assistance 

In accordance with section 223 of the 

Trade Act of 1974 (19 U.S.C. 2273) the 

Department of Labor issued a 

Certification of Eligibility to Apply for 

Worker Adjustment Assistance and 

Alternative Trade Adjustment 

Assistance on October 22, 2003, 

applicable to workers of Solon 

Manufacturing Company, Rhinelander, 

Wisconsin. The notice was published in 

the Federal Register on November 28, 

2003 (68 FR 66879). 

At the request of the State agency, the 

Department reviewed the certification 

for workers of the subject firm. The 

workers are engaged in the production 

of ice cream sticks and are not 

separately identifiable by product line. 

New findings show that there was a 

previous certification, TA–W–39,153, 

issued on May 8, 2001, for workers of 

Solon Manufacturing, Rhinelander, 

Wisconsin, who were engaged in 

employment related to the production of 

ice cream sticks. That certification 

expired May 8, 2003. To avoid an 

overlap in worker group coverage, the 

certification is being amended to change 

the impact date from September 24, 

2002, to May 9, 2003, for workers of the 

subject firm. 

The amended notice applicable to 

TA–W–53,042 is hereby issued as 

follows:

‘‘All workers of Solon Manufacturing 

Company, Rhinelander, Wisconsin, who 

became totally or partially separated from 

employment on or after May 9, 2003, through 

October 22, 2005, are eligible to apply for 

adjustment assistance under Section 223 of 

the Trade Act of 1974 and are also eligible 

to apply for alternative trade adjustment 

assistance under section 246 of the Trade Act 

of 1974.’’

Signed at Washington, DC, this 22nd day 

of January, 2004. 

Elliott S. Kushner, 

Certifying Officer, Division of Trade 

Adjustment Assistance.

[FR Doc. E4–245 Filed 2–9–04; 8:45 am] 

BILLING CODE 4510–13–P