76026 Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Notices 

would resolve the United States 

Government’s potential liability for 

response costs, response actions, and 

natural resource damages associated 

with the Site under CERCLA. Under the 

proposed Consent Decree, Brown 

County, Green Bay, and the United 

States would pay a total of $5.2 million 

($350,000 each from Brown County and 

Green Bay and $4.5 million from the 

United States). If the Decree is 

approved, the $5.2 million would be 

paid into a set of Site-specific special 

accounts for use in financing future 

cleanup and natural resource restoration 

work at the Site. 

The Department of Justice will receive 

comments relating to the Consent 

Decree for a period of thirty (30) days 

from the date of this publication. 

Comments should be addressed to the 

Assistant Attorney General, 

Environment and Natural Resources 

Division, and mailed either 

electronically to pubcommentees.enrd@usdoj.gov or in hard copy to 

P.O. Box 7611, U.S. Department of 

Justice, Washington, DC 20044–7611. 

Comments should refer to United States 

and the State of Wisconsin v. NCR 

Corp., et al., Case No. 10–C–910 (E.D. 

Wis.) and D.J. Ref. No. 90–11–2–1045/3. 

The Consent Decree may be examined 

at: (1) The offices of the United States 

Attorney, 517 E. Wisconsin Avenue, 

Room 530, Milwaukee, Wisconsin; and 

(2) the offices of the U.S. Environmental 

Protection Agency, 77 West Jackson 

Boulevard, 14th Floor, Chicago, Illinois. 

During the public comment period, the 

Consent Decree may also be examined 

on the following Department of Justice 

Web site: http://www.usdoj.gov/enrd/ 

Consent_Decrees.html. A copy of the 

Consent Decree may also be obtained by 

mail from the Department of Justice 

Consent Decree Library, P.O. Box 7611, 

Washington, DC 20044–7611 or by 

faxing or e-mailing a request to Tonia 

Fleetwood (tonia.fleetwood@usdoj.gov), 

fax no. (202) 514–0097, phone 

confirmation number (202) 514–1547. In 

requesting a copy from the Consent 

Decree Library, please enclose a check 

in the amount of $11.00 (44 pages at 25 

cents per page reproduction cost) 

payable to the U.S. Treasury. 

Maureen M. Katz, 

Assistant Chief, Environmental Enforcement 

Section, Environment and Natural Resources 

Division. 

[FR Doc. 2010–30572 Filed 12–6–10; 8:45 am] 

BILLING CODE 4410–15–P 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States v. Graftech International 

Ltd., Et al.; Proposed Final Judgment 

and Competitive Impact Statement 

Notice is hereby given pursuant to the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16(b)–(h), that a proposed 

Final Judgment, Stipulation and 

Competitive Impact Statement have 

been filed with the United States 

District Court for the District of 

Columbia in United States of America v. 

GrafTech International Ltd., et al., Civil 

Action No. 1:10–cv–02039. On 

November 29, 2010, the United States 

filed a Complaint alleging that the 

proposed acquisition by GrafTech 

International Ltd. (‘‘GrafTech’’) of 

Seadrift Coke L.P. (‘‘Seadrift’’) would 

violate Section 7 of the Clayton Act, 15 

U.S.C. 18. The proposed Final 

Judgment, filed the same time as the 

Complaint, requires that GrafTech and 

Seadrift modify an existing supply 

agreement with one of Seadrift’s 

competitors in the provision of 

petroleum needle coke, ConocoPhillips 

Company (‘‘Conoco’’), to remove terms 

that might have facilitated the sharing of 

pricing and production information. In 

addition, future supply agreements 

between GrafTech and Conoco must not 

provide Seadrift the means with which 

to verify customer-specific competitor 

pricing or production. In order to ensure 

compliance with these provisions, 

GrafTech must provide to the United 

States: (1) All future agreements 

between Conoco and GrafTech for the 

provision of petroleum needle coke; and 

(2) Seadrift documents prepared in the 

ordinary course of business that 

demonstrate Seadrift’s production, 

capacity and sales. GrafTech must also 

institute a firewall, which restricts the 

flow of competitively sensitive 

information to and from Conoco during 

GrafTech’s supply negotiations with 

that company, as well as preventing the 

flow of any competitively sensitive 

information to GrafTech personnel that 

may be provided to Seadrift from its 

customers. 

Copies of the Complaint, proposed 

Final Judgment, and Competitive Impact 

Statement are available for inspection at 

the Department of Justice, Antitrust 

Division, Antitrust Documents Group, 

450 Fifth Street, NW., Suite 1010, 

Washington, DC 20530 (telephone: 202– 

514–2481), on the Department of 

Justice’s Web site at http:// 

www.usdoj.gov/atr, and at the Office of 

the Clerk of the United States District 

Court for the District of Columbia. 

Copies of these materials may be 

obtained from the Antitrust Division 

upon request and payment of the 

copying fee set by Department of Justice 

regulations. 

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 Maribeth Petrizzi, 

Chief, Litigation II Section, Antitrust 

Division, U.S. Department of Justice, 

450 Fifth Street, NW., Suite 8700, 

Washington, DC 20530 (telephone: 202– 

307–0924). 

Patricia A. Brink, 

Director of Civil Enforcement. 

United States District Court for the 

District of Columbia 

United States of America, Department 

of Justice, Antitrust Division, 450 5th 

Street, NW., Suite 8700, Washington, 

DC 20530, Plaintiff, 

v. 

Graftech International Ltd., 2900 

Snow Road, Parma, Ohio 44130, and 

Seadrift Coke L.P., 8618 Highway 185 

North, Port Lavaca, Texas 77979, 

Defendants. 

Case No.: 1:10–Cv–02039 

Judge: Rosemary M. Collyer 

Deck Type: Antitrust 

Date Stamp: November 29, 2010 

Complaint 

Plaintiff, the United States of 

America, acting under the direction of 

the Attorney General of the United 

States, brings this civil antitrust action 

against defendants GrafTech 

International Ltd. (‘‘GrafTech’’) and 

Seadrift Coke L.P. (‘‘Seadrift’’) to obtain 

a permanent injunction and other relief 

to remedy the harm to competition 

caused by GrafTech’s acquisition of 

Seadrift. Plaintiff alleges as follows: 

I. Nature of the Action 

1. GrafTech is one of the largest 

producers of graphite electrodes in the 

world. On April 1, 2010, GrafTech 

agreed to acquire the 81.1 percent of 

Seadrift that it does not already own for 

approximately $308.1 million. Seadrift 

produces petroleum needle coke, the 

primary input in the production of 

graphite electrodes. 

2. Historically, GrafTech has sourced 

the majority of its petroleum needle 

coke from Seadrift’s competitor, 

ConocoPhillips Company (‘‘Conoco’’). At 

various times, there have been 

constraints in the supply of needle coke. 

Beginning January 1, 2001, GrafTech 

and Conoco formalized their 

relationship by negotiating two, nearlyVerDate Mar<15>2010 18:39 Dec 06, 2010 Jkt 223001 PO 00000 Frm 00075 Fmt 4703 Sfmt 4703 E:\FR\FM\07DEN1.SGM 07DEN1

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Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Notices 76027 

identical, long-term supply agreements 

for petroleum needle coke supplied 

from Conoco’s two production facilities, 

in Lake Charles, Louisiana, and South 

Killinghorne, England (collectively 

referred to hereinafter as ‘‘Supply 

Agreement’’). 

3. The Supply Agreement provides 

each party with the ability to audit the 

books, records, and documents of the 

other to ensure compliance. Though the 

‘‘termination clause’’ of the Supply 

Agreement was recently activated, 

notice of termination essentially locks 

in the terms of the Supply Agreement 

for three years. During this period, 

Conoco must provide petroleum needle 

coke to GrafTech on a most-favorednation (‘‘MFN’’) basis, meaning that 

prices to GrafTech may not exceed the 

lowest price charged by Conoco to its 

other customers. To ensure compliance 

with the MFN guarantee, GrafTech 

could demand to audit Conoco 

documents reflecting the company’s 

costs, pricing to specific customers, 

volume of production to each customer 

and other commercially sensitive terms 

of sale. 

4. GrafTech’s acquisition of Seadrift 

effectively would allow GrafTech to 

determine Seadrift’s capacity and 

utilization rate for the production and 

supply of petroleum needle coke. The 

acquisition would also provide Seadrift 

with direct access to all of the 

information GrafTech collects via the 

Supply Agreement with Conoco. This 

would allow access to verified, 

customer-specific pricing and 

production information between two 

petroleum needle coke competitors, 

Seadrift and Conoco. Such control over 

Seadrift and access to information could 

facilitate tacit coordination of prices or 

output. Thus, the merger would remove 

a significant barrier to collusion among 

suppliers of petroleum needle coke, 

enhancing GrafTech’s, Seadrift’s and 

Conoco’s ability to coordinate prices 

and output, with the likely effect of 

increased prices or reduced supply to 

consumers, in violation of Section 7 of 

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

II. The Defendants 

5. Headquartered in Parma, Ohio, 

GrafTech, through its graphite power 

systems division, is the largest 

manufacturer of graphite electrodes 

(‘‘graphite electrodes’’) sold in the 

United States. GrafTech has no U.S. 

production facility, but produces 

graphite electrodes for sale in the 

United States at some of its 

international facilities, located in 

Mexico, Brazil, Africa, France and 

Spain. GrafTech’s revenues from the 

sale of graphite electrodes were 

approximately $483 million in 2009. 

6. Seadrift, headquartered in Port 

Lavaca, Texas, is one of two domestic 

manufacturers of petroleum needle 

coke, the key input product in the 

manufacture of graphite electrodes in 

North America. Seadrift produces 

petroleum needle coke for sale to 

customers producing graphite electrodes 

sold in the United States from a single 

manufacturing plant, also located in 

Port Lavaca. The Port Lavaca plant has 

an annual production capacity of 

approximately 150,000 metric tons of 

petroleum needle coke, representing 

approximately 19 percent of worldwide 

petroleum needle coke capacity. 

III. Jurisdiction and Venue 

7. The United States brings this action 

against defendants GrafTech and 

Seadrift under Section 15 of the Clayton 

Act, 15 U.S.C. 25, as amended, to 

prevent GrafTech from violating Section 

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

8. Defendant GrafTech manufactures, 

sells and provides services related to 

graphite electrodes sold in the United 

States and in the flow of interstate 

commerce. GrafTech’s manufacture, sale 

and provision of services related to 

graphite electrodes substantially affect 

interstate commerce. Defendant Seadrift 

produces and sells petroleum needle 

coke in the United States in the flow of 

interstate commerce, and those 

activities substantially affect interstate 

commerce. The Court has jurisdiction 

over this action and over the parties 

pursuant to 15 U.S.C. 25 and 28 U.S.C. 

1331 and 1337. 

9. Defendants have consented to 

venue and personal jurisdiction in this 

judicial district. 

V. Trade and Commerce 

A. Relevant Market 

10. Petroleum needle coke, a 

crystalline form of carbon derived from 

decant oil, is the key ingredient in, and 

is used only in, the production of 

graphite electrodes. Graphite electrode 

producers such as GrafTech combine 

petroleum needle coke with pitch 

adhesives and other inputs to form 

cylinders that are shot through with 

electricity and baked to produce 

graphite electrodes. Graphite electrodes 

are then assembled into columns using 

connecting pins and sold to steel 

manufacturers for use in furnaces and 

foundries. Steel manufacturers dip the 

graphite electrodes into the belly of an 

electric arc furnace and use the graphite 

electrodes as a conductor to shoot 

electricity into the furnace, heating the 

furnace and melting scrap steel. 

11. Graphite electrodes oxidize and 

gradually are consumed. They are 

replaced about every eight hours. 

Graphite electrodes that oxidize too 

quickly or break while in use reduce the 

efficiency of the furnace and, in the case 

of breakage, require the electric arc 

furnace to be shut down so the 

fragments can be extracted from the 

molten steel, which imposes a 

significant cost on steel producers. The 

quality of the petroleum needle coke 

used to make the graphite electrode is 

the most important factor in preventing 

breakage or accelerated consumption of 

graphite electrodes. 

12. Petroleum needle coke, relative to 

other varieties of coke, is distinguished 

by its needle-like structure and its 

quality, which is measured by the 

presence of impurities, principally 

sulfur, nitrogen and ash. The needle-like 

structure of petroleum needle coke 

encourages expansion along the length 

of the electrode, rather than the width, 

which reduces the likelihood of 

fractures. Impurities reduce quality 

because they increase the coefficient of 

thermal expansion and electrical 

resistivity of the graphite electrode, 

which can lead to uneven expansion 

and a build-up of heat and causes the 

graphite electrode to oxidize rapidly 

and break. Petroleum needle coke is 

typically low in these impurities. In 

order to minimize fractures caused by 

disproportionate expansion over the 

width of an electrode, and minimize the 

effect of impurities, large-diameter 

graphite electrodes (18 inches to 32 

inches) employed in high-intensity 

electric arc furnace applications are 

comprised almost exclusively of 

petroleum needle coke. 

13. An alternative form of needle coke 

is produced from coal tar pitch. Pitch 

needle coke (‘‘pitch coke’’) tends to 

include more impurities than petroleum 

needle coke. Pitch coke can be used to 

make graphite electrodes, but it must be 

processed differently, is more costly and 

time-consuming to produce, and 

typically results in a lower quality 

graphite electrode. Pitch coke cannot be 

blended with petroleum needle coke. 

Because of these disadvantages, most 

producers of large-diameter graphite 

electrodes do not use pitch coke as an 

input. 

14. Anode coke, like petroleum 

needle coke, is a derivative of decant 

oil, but it lacks the needle-like structure 

of petroleum needle coke. Instead, 

anode coke particles are spherical and 

cause a graphite electrode to expand 

across the width rather than just the 

length of the electrode. This pattern of 

expansion makes fractures more likely, 

particularly in large-diameter graphite 


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76028 Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Notices 

electrodes, the greater width of which 

exaggerates the effect. Although 

producers may blend anode coke with 

petroleum needle coke to produce 

graphite electrodes, most producers 

carefully restrict the amount of anode 

coke used in graphite electrode 

production and do not use significant 

quantities of anode coke in the 

production of large-diameter graphite 

electrodes. 

15. Petroleum needle coke customers 

can and do obtain petroleum needle 

coke from multiple sources worldwide. 

Petroleum needle coke is produced at 

manufacturing facilities located in the 

United States, England and Japan. Each 

facility ships petroleum needle coke 

internationally, and transportation costs 

comprise a small fraction of the cost of 

petroleum needle coke. Petroleum 

needle coke purchasers typically pay 

the same price for petroleum needle 

coke regardless of the location of the 

production facility or the destination. 

16. A small but significant increase in 

the price of petroleum needle coke 

would not cause customers to substitute 

volumes of pitch needle coke or anode 

coke sufficient to make such a price 

increase unprofitable. Accordingly, 

worldwide production and sale of 

petroleum needle coke is a line of 

commerce and a relevant product 

market within the meaning of Section 7 

of the Clayton Act. 

B. Competitive Effects 

1. Market Structure and Supply 

Relationships 

17. Four significant firms operating 

out of five facilities worldwide produce 

petroleum needle coke. There have been 

instances in which demand has 

exceeded available supply; artificial 

restrictions on output could lead to 

supply constraints and higher prices. 

Conoco has the largest production 

capacity of all petroleum needle coke 

producers, and is the only manufacturer 

with two production facilities, 

including a plant in South Killinghorne, 

England and another in Lake Charles, 

Louisiana. Conoco’s two plants 

collectively represent 55 percent of 

worldwide petroleum needle coke 

capacity. Seadrift owns a single plant in 

Port Lavaca, Louisiana. Seadrift is the 

second-largest producer of petroleum 

needle coke, with approximately 19 

percent of capacity. It historically has 

sold petroleum needle coke to most of 

the major graphite electrode producers. 

GrafTech’s acquisition of Seadrift would 

enable it to alter Seadrift’s capacity and 

utilization rates. Two other producers 

each operate a plant in Japan; 

historically, the Japanese producers 

have not significantly increased the 

amount of petroleum needle coke they 

ship into the United States from year to 

year. 

18. Conoco supplies nearly every 

graphite electrode manufacturer in the 

world with some portion of the 

manufacturer’s petroleum needle coke 

requirements, including GrafTech and 

all of its graphite electrode competitors. 

Even following its acquisition of 

Seadrift, GrafTech intends to continue 

to purchase petroleum needle coke from 

Conoco. All major graphite electrode 

producers have multiple plants 

worldwide, and typically rely upon 

either Conoco or Seadrift for some 

portion of their petroleum needle coke 

requirements. Supply agreements are 

typically negotiated annually for the 

following year, with sporadic monthly 

purchases as-needed to fill gaps 

between projected and real demand. 

2. GrafTech-Conoco Long-Term Supply 

Relationship 

19. Over the past ten years, GrafTech 

has been engaged in a long-term supply 

arrangement with Conoco, buying the 

vast majority of its petroleum needle 

coke requirements from Conoco’s South 

Killinghorne and Lake Charles facilities. 

The Supply Agreement includes a target 

range for the volume of purchases by 

GrafTech from each Conoco plant, and 

is modified annually to record 

negotiated price terms for the coming 

year. 

20. The Supply Agreement includes a 

clause entitled ‘‘Audit Rights,’’ which 

permit Conoco and GrafTech to audit 

each other’s books, records and 

documents. The audit rights do not 

exclude contemporaneous books, 

records and documents. 

21. The Supply Agreement also 

includes a ‘‘termination clause,’’ which 

is activated upon notice by either party. 

When activated, the termination clause 

requires the Supply Agreement to 

continue for a period of three years, 

with modified volume commitments 

and pricing terms. GrafTech’s 

obligations to buy petroleum needle 

coke from Conoco are based on past 

purchase volumes and decline each year 

by a set percentage. Conoco, in turn, 

must grant GrafTech MFN pricing for 

that three-year period, which requires 

that GrafTech’s prices shall be no higher 

than the lowest price charged by Conoco 

for the relevant grade of petroleum 

needle coke among all of its petroleum 

needle coke customers. 

22. On September 27, 2010, Conoco 

notified GrafTech that it intended to 

terminate the Supply Agreement. 

Activation of the termination clause 

converted the price term to MFN 

pricing. The audit rights clause remains 

unchanged. 

23. Even after the three-year period 

remaining under the Supply Agreement 

expires, GrafTech intends to continue to 

contract with Conoco for a substantial 

volume of petroleum needle coke. Such 

a relationship could expose GrafTech to 

information regarding Conoco’s pricing, 

supply and output. GrafTech could 

utilize such information to coordinate 

petroleum needle coke pricing and 

output. 

3. Impact of GrafTech’s Merger with 

Seadrift 

24. On April 1, 2010, GrafTech agreed 

to acquire the outstanding majority 

interest in Seadrift. When announcing 

the proposed acquisition, GrafTech also 

described various improvements that it 

intended to make to the Seadrift facility, 

including expansion in available 

capacity, in anticipation of using a 

significant volume of Seadrift’s 

production following the acquisition. 

25. The audit rights clause provides 

GrafTech access to Conoco’s facilities, 

books, records and documents to ensure 

compliance with the Supply Agreement. 

The MFN clause now requires that 

Conoco charge to GrafTech prices no 

higher than the lowest price it offers to 

other graphite electrode producers. To 

ensure compliance with the MFN, 

GrafTech could request to audit 

Conoco’s books, records and documents 

reflecting prices charged to specific 

graphite electrode customers. Such an 

audit also could reveal Conoco’s costs, 

production, terms of sale and related 

commercial information. Access to 

invoices and billing records, for 

example, would provide direct 

information about volume sold, prices 

charged and the credit terms under 

which payment was collected for 

individual customers. 

26. Once Seadrift is acquired by 

GrafTech, it will have access to the same 

information as GrafTech under the 

Supply Agreement, including any 

information arising from GrafTech’s 

access to Conoco’s facilities and audits 

of Conoco’s contemporaneous books, 

records and documents. Because 

Conoco sells petroleum needle coke to 

nearly every graphite electrode producer 

in the world, the scope of that access is 

essentially market-wide. 

27. Consequently, post-merger, 

GrafTech would be able to exercise 

rights under the Supply Agreement at 

the behest of Seadrift, Conoco’s 

competitor. Indeed, the activation of the 

MFN clause maximizes GrafTech’s 

ability to verify the prices that Seadrift’s 

primary competitor charges to specific 

petroleum needle coke customers, and 


emcdonald on DSK2BSOYB1PROD with NOTICES
Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Notices 76029 

1 GrafTech has not received MFN pricing from 

Conoco under this clause to date. Conoco’s 

September 2010 termination of the Supply 

Agreement activated this dormant provision, which 

would have applied to sales beginning in 2011. 

the volume of petroleum needle coke 

promised to each customer. The merger 

would allow the exploitation of those 

rights by Seadrift. Such access by a 

competitor could facilitate a tacit 

understanding between Seadrift and 

Conoco about the prices that should be 

charged to each customer, or the rate of 

output of each facility. Further, the 

ability to verify a competitor’s 

contemporaneous, customer-specific 

production and pricing would eliminate 

the incentive and opportunity to deviate 

from any such understanding, as 

detection would be likely, removing 

another barrier to coordination. 

28. Accordingly, the MFN and audit 

rights clauses would substantially 

reduce competition in the petroleum 

needle coke market, which likely would 

lead to higher prices and reduced 

output, in violation of Section 7 of the 

Clayton Act. 

29. Even in the absence of the MFN 

and Audit Rights, however, the ongoing 

supply relationship between GrafTech 

and Conoco could provide GrafTech 

(and hence Seadrift) with inappropriate 

competitive information regarding 

pricing, supply and output. Such 

information could enhance the potential 

for price and output coordination. 

V. Violation Alleged 

30. GrafTech’s acquisition of Seadrift, 

by permitting access to verified, 

customer-specific production, pricing 

and related commercial information by 

competitors Seadrift and Conoco under 

the terms of the Supply Agreement, and 

possibly other supply arrangements, 

would substantially reduce competition 

and likely increase prices and reduce 

output in the petroleum needle coke 

market in violation of Section 7 of the 

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

VI. Requested Relief 

31. Plaintiff requests that this Court: 

a. Adjudge and decree that GrafTech’s 

acquisition of Seadrift would violate 

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

18; 

b. Compel GrafTech to strike the audit 

and MFN clauses from the Supply 

Agreement; 

c. Prohibit GrafTech from including in 

future contracts with Conoco any term 

that conveys an audit right, MFN 

pricing, or otherwise allows the 

exchange of third-party production, 

pricing and related commercial 

information between GrafTech and 

Conoco; 

d. Award Plaintiff the cost of this 

action; and 

e. Grant Plaintiff such other and 

further relief as the case requires and 

the Court deems just and proper. 

Dated: November 29, 2010 

Respectfully Submitted, 

For Plaintiff United States of America: 

Christine A. Varney, 

Assistant Attorney General, D.C. Bar No. 

411654. 

/s/ lllllllllllllllllll

Katherine B. Forrest, 

Deputy Assistant Attorney General 

/s/ lllllllllllllllllll

Molly S. Boast, 

Deputy Assistant Attorney General 

/s/ lllllllllllllllllll

Patricia A. Brink, 

Director of Civil Enforcement 

/s/ lllllllllllllllllll

Maribeth Petrizzi, 

Chief, Litigation II Section, D.C. Bar No. 

435204 

/s/ lllllllllllllllllll

Dorothy B. Fountain, 

Assistant Chief, Litigation II Section, D.C. Bar 

No. 439469 

/s/ lllllllllllllllllll

Stephanie A. Fleming, 

Kevin Quin, 

Jillian E. Charles, 

James K. Foster, 

Suzanne Morris 

Attorneys, 

U.S. Department of Justice, Antitrust 

Division, Litigation II Section, 450 Fifth 

Street, NW., Suite 8700, Washington, DC 

20530, (202) 514–9228, 

Stephanie.Fleming@usdoj.gov 

United States District Court for the District 

of Columbia 

United States of America, Plaintiff, v. 

Graftech International Ltd. And Seadrift 

Coke L.P., Defendants. 

Case No.: 1:10–Cv–02039. 

Judge: Rosemary M. Collyer. 

Deck Type: Antitrust. 

Date Stamp: November 29, 2010. 

Competitive Impact Statement 

Plaintiff United States of America 

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

2(b) of the Antitrust Procedures and 

Penalties Act (‘‘APPA’’ or ‘‘Tunney Act’’), 

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 

Defendants GrafTech International 

Ltd. (‘‘GrafTech’’) and Seadrift Coke L.P. 

(‘‘Seadrift’’) entered into an Agreement 

and Plan of Merger, dated April 1, 2010, 

pursuant to which GrafTech agreed to 

acquire the 81.1 percent of Seadrift 

stock it does not already own for about 

$308.1 million. 

The United States filed a civil 

antitrust Complaint on November 29, 

2010, seeking to enjoin GrafTech’s 

proposed acquisition of Seadrift. The 

Complaint alleges that the acquisition 

likely will substantially lessen 

competition in the worldwide sale of 

petroleum needle coke used to 

manufacture graphite electrodes, in 

violation of Section 7 of the Clayton 

Act, 15 U.S.C. 18. That loss of 

competition likely would result in 

higher prices, reduced output and less 

favorable terms of sale in the global 

petroleum needle coke market. 

At the same time the Complaint was 

filed, the United States filed a proposed 

Final Judgment, which is designed to 

remedy the expected anticompetitive 

effects of the acquisition. Under the 

proposed Final Judgment, which is 

explained more fully below, GrafTech 

and Seadrift are required to modify the 

long-term petroleum needle coke supply 

agreements (‘‘Supply Agreement’’) 

between GrafTech and ConocoPhillips 

Company (‘‘Conoco’’), a competitor of 

Seadrift, and provides for ongoing 

reports regarding petroleum needle coke 

demand, capacity utilization and the 

imposition of firewalls. After the 

proposed acquisition, GrafTech would 

control Seadrift’s capacity utilization for 

petroleum needle coke. Seadrift 

effectively would also have direct access 

to all of the information it collects from 

its customers as well as the information 

GrafTech collects via the Supply 

Agreement. The Supply Agreement 

would include the ability to verify 

Conoco’s customer-specific pricing, 

volume of production and other 

commercially sensitive information, via 

the audit rights and most-favored-nation 

(‘‘MFN’’) pricing clauses included 

therein.1 Future supply arrangements 

also could provide similar opportunities 

to access commercially sensitive 

information, as well as other sensitive 

information from Seadrift’s own 

customers. The ability of a vendor to 

verify current commercial terms granted 

by a competitor could facilitate a tacit 

understanding on price or output and 

provide a means to detect cheating on 

such an understanding, increasing the 

likelihood of coordination. Accordingly, 

as the merger would remove a 

significant barrier to collusion, it likely 

would lead to anticompetitive effects. 

Under the proposed Final Judgment, 

the Defendants are permitted only to 

engage in ongoing and future purchases 

of petroleum needle coke from Conoco 

pursuant to a revised supply agreement, 

one that does not provide Seadrift the 

means to verify customer-specific 

competitor pricing or production. The 

proposed Final Judgment also bars 


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GrafTech from negotiating any future 

agreement with Conoco that would 

confer any such rights to Seadrift, for a 

period of ten years from entry of the 

proposed Final Judgment. In order to 

ensure compliance with these 

provisions, all future agreements for the 

provision of petroleum needle coke 

from Conoco to GrafTech and Seadrift 

must be provided to the United States 

within two business days of execution. 

GrafTech also must produce documents 

prepared in the ordinary course of 

business that demonstrate Seadrift’s 

production, capacity and sales. The 

proposed Final Judgment also restricts 

the flow of competitively sensitive 

information between GrafTech 

personnel who negotiate GrafTech’s 

supply of petroleum needle coke from 

Conoco, and Seadrift personnel who 

make decisions about Seadrift’s 

production and prices. 

The United States believes the 

provisions in the proposed Final 

Judgment will remove the potential for 

competitors to verify customer-specific 

pricing, production and other 

commercial terms. At the same time, the 

proposed Final Judgment preserves the 

quality improvements likely after the 

merger, and would not impede the 

potential cost savings that the parties 

claim will result from the merger, and 

that may incentivize discounting in the 

downstream market for graphite 

electrodes. 

The United 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 Final Judgment and to 

punish violations thereof for a period of 

ten years after entry of the Final 

Judgment. 

II. Description of the Events Giving Rise 

to the Alleged Violations 

A. The Defendants 

GrafTech, headquartered in Parma, 

Ohio, through its graphite power 

systems division, is the largest 

manufacturer of graphite electrodes sold 

in the United States, and one of the two 

leading providers of graphite electrodes 

worldwide. GrafTech produces graphite 

electrodes at facilities in Mexico, Brazil, 

Africa, France and Spain. GrafTech 

realized revenue of approximately $483 

million from the sale of graphite 

electrodes in 2009. 

Seadrift, headquartered in Port 

Lavaca, Texas, is one of two U.S. 

manufacturers of petroleum needle 

coke, the key input in the manufacture 

of graphite electrodes in North America. 

Seadrift operates a single manufacturing 

plant, which has a current annual 

production capacity of approximately 

150,000 metric tons of petroleum needle 

coke, representing approximately 19 

percent of worldwide petroleum needle 

coke capacity, and Seadrift realized 

revenue of $62 million in 2009. Postacquisition, GrafTech would control 

Seadrift’s capacity and utilization rates. 

B. The Competitive Effects of the 

Acquisition on the Market for Petroleum 

Needle Coke 

1. Relevant Market 

Petroleum needle coke is used 

exclusively in the production of 

graphite electrodes. Graphite electrodes 

are large columns of virtually pure 

graphite used in the production of steel 

from scrap in electric arc furnaces, ladle 

metallurgy furnaces, and foundries. As 

graphite electrodes heat the steel, they 

are consumed through oxidation, and 

are replaced by connecting the end of 

the new graphite electrode with the end 

of the chain of graphite electrodes in the 

furnace. The highest-intensity electric 

arc furnaces require large-diameter 

graphite electrodes, which range in size 

between 18 inches in diameter to 32 

inches in diameter. 

Petroleum needle coke is the key 

material input into large-diameter 

graphite electrodes used in electric arc 

furnaces in the United States. All sizes 

of graphite electrodes are manufactured 

out of needle coke, but some smalldiameter graphite electrode 

manufacturers blend a percentage of 

anode coke with the needle coke during 

the production process. Large-diameter 

graphite electrodes require 

approximately one metric ton of raw 

needle coke to produce one metric ton 

of finished graphite electrode. 

Needle coke is a nearly pure form of 

carbon that can be derived either from 

petroleum (‘‘petroleum needle coke’’) or 

coal tar pitch (‘‘pitch coke’’). Petroleum 

needle coke is manufactured from 

decant oil, a byproduct from the 

catalytic cracking process of refining 

crude oil. Petroleum needle coke’s 

structure differs from that of anode 

coke, also derived from decant oil, in 

that it is crystalline with needle-like 

particles. This structure provides a low 

coefficient of thermal expansion, which 

allows it to maintain its shape in hightemperature settings, and a low 

electrical resistivity, permitting efficient 

conduction of electricity. Additionally, 

petroleum needle coke has a lower 

content of sulfur and nitrogen than does 

pitch coke, which minimizes changes in 

shape caused when coke over-expands 

during graphite electrode 

manufacturing, creating cracks or voids 

within the graphite electrode, 

drastically altering both its strength and 

density. 

Graphite electrode producers obtain 

their supply of petroleum needle coke 

from one or more of four firms: Seadrift, 

Conoco, and two vendors located in 

Japan. Historically, the Japanese 

suppliers have not substantially 

increased the volume of petroleum 

needle coke that they ship into the 

United States from year to year. Conoco 

is the only manufacturer with two 

petroleum needle coke production 

facilities, one in Lake Charles, Louisiana 

and one in South Killinghorne, England. 

Conoco, Seadrift, and the Japanese 

producers all have worldwide 

customers and ship internationally. 

There have been instances of supply 

constraint in the manufacture of 

petroleum needle coke. Transportation 

costs make up a small fraction of the 

cost of petroleum needle coke, and 

customers typically pay the same price 

for petroleum needle coke regardless of 

the location of the production facility or 

the destination. 

Manufacturers of large-diameter 

graphite electrodes worldwide typically 

use petroleum needle coke to produce 

their graphite electrodes and would not, 

in response to a small but significant 

increase in price of petroleum needle 

coke, switch to pitch or anode cokes in 

sufficient volumes such that the 

attempted price increase would be 

defeated or deterred. Thus, worldwide 

production and sale of petroleum needle 

coke is a relevant market for purposes 

of antitrust analysis of the proposed 

transaction. 

2. Anticompetitive Effects 

The proposed acquisition of Seadrift 

by GrafTech could substantially lessen 

competition in the international 

petroleum needle coke market because 

it would allow GrafTech to control 

Seadrift’s capacity and utilization rates 

for the manufacture of petroleum needle 

coke, and also provide Seadrift direct 

access to verified, customer-specific 

competitor pricing and production 

information. The basis for the 

Complaint, and the essence of the 

expected anticompetitive effect of this 

acquisition, is that GrafTech’s 

acquisition of Seadrift, Conoco’s largest 

petroleum needle coke competitor, 

would draw Seadrift into GrafTech’s 

current Supply Agreement and future 

supply arrangements with Conoco, 

while also allowing GrafTech to control 

Seadrift’s output. It is GrafTech’s 

control of Seadrift and its addition to 


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the Conoco alliance, by and through the 

proposed acquisition, which has 

triggered a violation of the Clayton Act. 

It is the consequent agreement between 

competitors that the proposed Final 

Judgment is designed to address, by 

removing the opportunity and means for 

Seadrift and Conoco to engage in 

anticompetitive activity under cover of 

the Supply Agreement, and possibly 

future supply arrangements. 

On September 27, 2010, in response 

to the proposed merger, the termination 

clause of the Supply Agreement was 

activated. The activation of the 

termination clause has initiated a threeyear wind-down period during which 

GrafTech is obligated to buy specified 

volumes in each year and Conoco must 

provide that volume with pricing on an 

MFN basis. The MFN requires that 

prices to GrafTech shall be no higher 

than the lowest price charged by Conoco 

for the relevant grade of coke among all 

of its coke customers other than 

GrafTech. Included among the clauses 

in the Supply Agreement that remain in 

place during the wind-down period is 

the mutual right for GrafTech and 

Conoco, in order to ensure compliance 

with the Supply Agreement, to audit 

each other’s books, records and 

documents, which likely would include 

current cost information, production 

schedules, invoices that contain thirdparty pricing and volume information, 

records that reveal credit terms, and 

similar competitively sensitive 

information. By operation of the merger, 

the audit clause would extend to 

Seadrift the information provided to 

GrafTech, allowing Seadrift to verify the 

real-time, customer-specific pricing its 

main competitor charges and the 

volume of petroleum needle coke sold 

to nearly every electrode manufacturer 

in the world. 

The legacy audit right included in the 

Supply Agreement would provide 

Seadrift with the means to verify a key 

rival’s contemporaneous prices, which 

could facilitate an understanding 

between Seadrift and Conoco about the 

prices to be charged to each customer, 

and could be used to enforce that 

understanding by deterring cheating. At 

the same time, the MFN effectively 

could have a chilling effect on Conoco’s 

willingness to offer discounts to other 

graphite electrode customers, because it 

would have to provide the same 

discount for the large volume of 

petroleum needle coke it sells to 

GrafTech. 

Even after the three-year extension of 

the Supply Agreement expires, 

however, GrafTech intends to purchase 

substantial quantities of petroleum 

needle coke from Conoco via other 

supply arrangements; combined with its 

ownership of Seadrift, this could 

provide the conditions for output 

coordination. 

Exchanges of current price 

information have the potential to 

generate anticompetitive effects and, 

although not per se unlawful under the 

antitrust laws, have consistently been 

held to violate the Sherman Act. 

Moreover, the residual audit right in the 

Supply Agreement provides that 

GrafTech and Conoco may audit each 

other’s contemporaneous books, records 

and documents. Post-merger, GrafTech’s 

cost structure would include the 

production of Seadrift petroleum needle 

coke. This clause, if left unchecked, 

would allow Conoco to know Seadrift’s 

volume and cost of production, and 

would allow GrafTech to review all of 

Conoco’s production volume and costs. 

Moreover, should the audit clause be 

used in conjunction with the MFN, to 

verify that GrafTech was, in fact, 

receiving the lowest price, for example, 

Seadrift potentially would have access 

to its largest competitor’s pricing and 

production to all other customers. 

Ongoing supply arrangements also have 

the potential to provide Seadrift, 

through GrafTech, with competitively 

sensitive information. 

Therefore, GrafTech’s acquisition of 

Seadrift likely will substantially lessen 

competition in the development, 

production and sale of petroleum needle 

coke in the United States, likely leading 

to higher prices, reduced output and 

less favorable terms of sale in the 

worldwide petroleum needle coke 

market, in violation of Section 7 of the 

Clayton Act. 

III. Explanation of the Proposed Final 

Judgment 

The proposed Final Judgment will 

eliminate the anticompetitive effects 

that otherwise would result from 

GrafTech’s acquisition of Seadrift. 

Conoco, having activated the 

termination clause of the Supply 

Agreement, has initiated the three-year 

wind-down period during which 

GrafTech must buy specified volumes 

each year, and Conoco must provide 

that volume with pricing on an MFN 

basis. The audit rights, also included in 

the Supply Agreement, give GrafTech 

and Seadrift access to Conoco’s pricing 

and commercial terms to all of its 

customers, for the purpose of enforcing 

MFN pricing. The proposed Final 

Judgment requires GrafTech and 

Seadrift immediately to abrogate, amend 

or otherwise alter the current petroleum 

needle coke Supply Agreement between 

GrafTech and Conoco to remove the 

terms related to the ongoing audit rights, 

sharing of non-public or proprietary 

information, and MFN pricing. 

The proposed Final Judgment also 

provides that the Department of Justice’s 

Antitrust Division must receive copies 

of any and all agreements regarding the 

provision of petroleum needle coke 

between the defendants and Conoco for 

the term of the Final Judgment, as well 

as ordinary course business documents 

that illuminate Seadrift’s output and 

sales decisions. These provisions ensure 

that Defendants comply with the 

proposed Final Judgment and also will 

serve to deter them from entering into 

any agreement that may have the effect 

of enhancing coordination among 

competing suppliers of petroleum 

needle coke. Production of contracts 

between GrafTech and Conoco will 

allow the Division to monitor future 

agreements for audit rights or other 

provisions that facilitate the exchange of 

proprietary pricing and output 

information. Production of ordinary 

course business documents will allow 

the Division to monitor changes in 

production in relation to capacity that 

may suggest output coordination. As an 

additional safeguard, the proposed Final 

Judgment requires that GrafTech strictly 

segregate employees who negotiate 

terms with Conoco from those who 

make decisions about pricing and 

production at Seadrift. Similarly, 

Seadrift employees who negotiate 

arrangements with competitors of 

GrafTech will be prevented from sharing 

any competitively sensitive information 

thereby obtained. 

Further, striking the audit clause and 

MFN provision of the Supply 

Agreement will not imperil the potential 

efficiencies that GrafTech expects will 

result from the merger. GrafTech 

anticipates substantial, merger-specific 

efficiencies by internal consumption of 

Seadrift petroleum needle coke, which 

would allow the elimination of double 

margins. Should this result in lower 

GrafTech prices for graphite electrodes 

downstream, it likely would incentivize 

other graphite electrode competitors to 

reduce prices in response to that 

competition. Verified plans to improve 

the quality of Seadrift petroleum needle 

coke likely will benefit Seadrift’s 

graphite electrode customers, as well as 

the downstream consumers of finished 

graphite electrodes, in the future. Thus, 

by removing the audit rights and MFN 

provisions from the Supply Agreement, 

and providing other protections in 

connection with the future supply 

arrangements, that source of potential 

harm is eliminated without threatening 

to deprive consumers of the procompetitive efficiencies that GrafTech 


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and Seadrift expect their merger to 

generate. 

As a result of the proposed Final 

Judgment, Seadrift and Conoco will 

remain independent, competitive 

suppliers of petroleum needle coke, 

while GrafTech will be free to realize 

the efficiencies it expects to result from 

the Seadrift acquisition. Finally, in the 

future, any new agreement between 

Seadrift and Conoco that might facilitate 

collusion by incorporating terms such as 

those required to be abrogated by the 

proposed Final Judgment will be 

deterred. 

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 Defendant. 

V. Procedures Applicable for Approval 

or Modification of the Proposed Final 

Judgment 

The United States and Defendant have 

stipulated that the proposed Final 

Judgment may be entered by 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. 

The APPA provides a period of at 

least sixty (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. Any person who wishes to 

comment should do so within sixty (60) 

days of the date of publication of this 

Competitive Impact Statement in the 

Federal Register, or the last date of 

publication in a newspaper of the 

summary of this Competitive Impact 

Statement, whichever is later. All 

comments received during this period 

will be considered by the United States 

Department of Justice, which remains 

free to withdraw its consent to the 

proposed Final Judgment at any time 

prior to the Court’s entry of judgment. 

The comments and the response of the 

United States will be filed with the 

Court and published in the Federal 

Register. Written comments should be 

submitted to: Maribeth Petrizzi, Chief, 

Litigation II Section, Antitrust Division, 

United States Department of Justice, 450 

Fifth Street, NW., Suite 8700, 

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 Defendants. The United States 

could have litigated and sought 

preliminary and permanent injunctions 

against Defendant GrafTech’s 

acquisition of Seadrift, in order to avoid 

providing Seadrift access to 

competitively sensitive information 

available under the Supply Agreement. 

The United States is satisfied, however, 

that the proposed Final Judgment will 

preserve competition for the provision 

of petroleum needle coke without the 

time or expense of litigation. The 

proposed Final Judgment will achieve 

all or substantially all of the relief the 

United States would have obtained 

through litigation, but avoids the time, 

expense, and uncertainty of a full trial 

on the merits of the Complaint. 

VII. Standard of Review Under the 

APPA for the Proposed Final Judgment 

The Clayton Act, as amended by the 

APPA, requires that proposed consent 

judgments in antitrust cases brought by 

the United States be subject to a sixtyday 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)(1). In 

making that determination in 

accordance with the statute, the court is 

required to consider: 

(A) The competitive impact of such 

judgment, including termination of 

alleged violations, provisions for 

enforcement and modification, duration 

of relief sought, anticipated effects of 

alternative remedies actually 

considered, whether its terms are 

ambiguous, and any other competitive 

considerations bearing upon the 

adequacy of such judgment that the 

court deems necessary to a 

determination of whether the consent 

judgment is in the public interest; and 

(B) the impact of entry of such 

judgment upon competition in the 

relevant market or markets, 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. 

15 U.S.C. 16(e)(1)(A)–(B). In 

considering these statutory factors, the 

court’s inquiry is necessarily a limited 

one as the government is entitled to 

‘‘broad discretion to settle with the 

defendant within the reaches of the 

public interest.’’ United States v. 

Microsoft Corp., 56 F.3d 1448, 1461 

(D.C. Cir. 1995); see generally United 

States v. SBC Commc’ns, Inc., 489 F. 

Supp. 2d 1 (D.D.C. 2007) (assessing 

public interest standard under the 

Tunney Act); United States v. InBev 

N.V./S.A., 2009–2 Trade Cas. (CCH) 

¶ 76,736, 2009 U.S. Dist. LEXIS 84787, 

No. 08–1965 (JR), at *3 (D.D.C. Aug. 11, 

2009) (noting that the court’s review of 

a consent judgment is limited and only 

inquires ‘‘into whether the government’s 

determination that the proposed 

remedies will cure the antitrust 

violations alleged in the complaint was 

reasonable, and whether the mechanism 

to enforce the final judgment are clear 

and manageable.’’). 

As the United States Court of Appeals 

for the District of Columbia has held, 

under the APPA a court considers, 

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. See Microsoft, 56 

F.3d at 1458–62. 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; United States v. Alcoa, Inc., 

152 F. Supp. 2d 37, 40 (D.D.C. 2001); 

InBev, 2009 U.S. Dist. LEXIS 84787, at 

*3. Courts have held that: 

[t]he balancing of competing social and 

political interests affected 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 


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1Cf. 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’’); United States v. Gillette Co., 406 F. Supp. 

713, 716 (D. Mass. 1975) (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’ ’’). 

2The 2004 amendments substituted the word 

‘‘shall’’ for ‘‘may’’ when directing the courts to 

consider the enumerated factors and amended the 

list of factors to focus on competitive considerations 

and address potentially ambiguous judgment terms. 

Compare 15 U.S.C. 16(e) (2004), with 15 U.S.C. 

16(e)(1) (2006); see also SBC Commc’ns, 489 F. 

Supp. 2d at 11 (concluding that the 2004 

amendments ‘‘effected minimal changes’’ to Tunney 

Act review). 

3See United States v. Enova Corp., 107 F. Supp. 

2d 10, 17 (D.D.C. 2000) (noting that the ‘‘Tunney 

Act expressly allows the court to make its public 

interest determination on the basis of the 

competitive impact statement and response to 

comments alone’’); United States v. Mid-Am. 

Dairymen, Inc., 1977–1 Trade Cas. (CCH) ¶ 61,508, 

at 71,980 (W.D. Mo. 1977) (‘‘Absent 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 

impact statement and its responses to comments in 

order to determine whether those explanations are 

reasonable under the circumstances.’’); S. Rep. No. 

93–298, 93d Cong., 1st Sess., at 6 (1973) (‘‘Where 

the public interest can be meaningfully evaluated 

simply on the basis of briefs and oral arguments, 

that is the approach that should be utilized.’’). 

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).1

In determining whether a proposed 

settlement is in the public interest, the 

court ‘‘must accord deference to the 

government’s predictions about the 

efficacy of its remedies, and may not 

require that the remedies perfectly 

match the alleged violations.’’ SBC 

Commc’ns, 489 F. Supp. 2d at 17; see 

also Microsoft, 56 F.3d at 1461 (noting 

the need for courts to be ‘‘deferential to 

the government’s predictions as to the 

effect of the proposed remedies’’); 

United States v. Archer-DanielsMidland Co., 272 F. Supp. 2d 1, 6 

(D.D.C. 2003) (noting that the court 

should grant due respect to the United 

States’ prediction as to the effect of 

proposed remedies, its perception of the 

market structure, and its views of the 

nature of the case); United States v. 

Republic Serv., Inc., 2010–2 Trade Cas. 

(CCH) ¶77, 097, 2010 U.S. Dist. LEXIS 

70895, No. 08–2076 (RWR), at *10 

(D.D.C. July 15, 2010) (finding that ‘‘[i]n 

light of the deferential review to which 

the government’s proposed remedy is 

accorded, [amicus curiae’s] argument 

that an alternative remedy may be 

comparably superior, even if true, is not 

a sufficient basis for finding that the 

proposed final judgment is not in the 

public interest’’). 

Courts have greater flexibility in 

approving proposed consent decrees 

than in crafting their own decrees 

following a finding of liability in a 

litigated matter. ‘‘[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. Am. Tel. & Tel. Co., 552 F. 

Supp. 131, 151 (D.D.C. 1982) (citations 

omitted) (quoting United States v. 

Gillette Co., 406 F. Supp. 713, 716 (D. 

Mass. 1975)), 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). 

Therefore, the United States ‘‘need only 

provide a factual basis for concluding 

that the settlements are reasonably 

adequate remedies for the alleged 

harms.’’ SBC Commc’ns, 489 F. Supp. 2d 

at 17; Republic Serv., 2010 U.S. Dist. 

LEXIS 70895, at *2–3 (entering final 

judgment ‘‘[b]ecause there is an 

adequate factual foundation upon which 

to conclude that the government’s 

proposed divestiture will remedy the 

antitrust violations alleged in the 

complaint’’). 

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; see also InBev, 2009 U.S. 

Dist. LEXIS 84787, at *20 (‘‘the ‘public 

interest’ is not to be measured by 

comparing the violations alleged in the 

complaint against those the court 

believes could have, or even should 

have, been alleged’’). 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 did not pursue. 

Microsoft, 56 F.3d at 1459–60. As this 

Court confirmed in SBC 

Communications, courts ‘‘cannot look 

beyond the complaint in making the 

public interest determination unless the 

complaint is drafted so narrowly as to 

make a mockery of judicial power.’’ 489 

F. Supp. 2d at 15. 

In its 2004 amendments to the 

Tunney Act,2 Congress made clear its 

intent to preserve the practical benefits 

of utilizing consent decrees in antitrust 

enforcement, stating: ‘‘[n]othing in this 

section shall be construed to require the 

court to conduct an evidentiary hearing 

or to require the court to permit anyone 

to intervene.’’ 15 U.S.C. 16(e)(2). The 

language wrote into the statute what 

Congress intended when it enacted the 

Tunney Act in 1974, as Senator Tunney 

explained: ‘‘[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). Rather, the 

procedure for the public interest 

determination is left to the discretion of 

the court, with the recognition that the 

court’s ‘‘scope of review remains sharply 

proscribed by precedent and the nature 

of Tunney Act proceedings.’’ SBC 

Commc’ns, 489 F. Supp. 2d at 11.3

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: November 29, 2010. 

Respectfully submitted, 

/s/ lllllllllllllllllll

Stephanie A. Fleming, Esq., 

United States Department of Justice, 

Antitrust Division, Litigation II Section, 450 

Fifth Street, N.W., Suite 8700, Washington, 

D.C. 20530, (202) 514–9228, 

stephanie.fleming@usdoj.gov. 

Certificate of Service 

I, Stephanie A. Fleming, hereby 

certify that on November 29, 2010, I 

caused a copy of the foregoing 

Competitive Impact Statement to be 

served upon defendants GrafTech 

International Ltd. and Seadrift Coke L.P. 

by mailing the documents electronically 

to the duly authorized legal 

representatives of defendants as follows: 

Counsel for Defendant GrafTech: 

Jonathan Gleklen, Esq., Arnold & Porter 

LLP, 555 12th Street, NW., Washington, 

DC 20004. 

Counsel for Defendant Seadrift: Craig 

Seebald, Esq., Joel Grosberg, Esq., 

McDermott, Will & Emery, 600 13th 

Street, NW., Washington, DC 20006. 

Stephanie A. Fleming, Esq., United 

States Department of Justice, Antitrust 

Division, Litigation II Section, 450 Fifth 

Street, NW., Suite 8700, Washington, 

DC 20530, (202) 514–9228, 

Stephanie.fleming@usdoj.gov. 


emcdonald on DSK2BSOYB1PROD with NOTICES
76034 Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Notices 

United States District Court for the 

District of District of Columbia 

United States of America, Plaintiff, v. 

GrafTech International Ltd. and Seadrift 

Coke L.P., Defendants. 

Case No.: 1:10–Cv–02039. 

Judge: Rosemary M. Collyer. 

Deck Type: Antitrust. 

Date Stamp: November 29, 2010. 

Final Judgment 

Whereas, Plaintiff, United States of 

America, filed its Complaint on 

November 29, 2010, and the United 

States and Defendants GrafTech 

International Ltd. (‘‘GrafTech’’) and 

Seadrift Coke L.P. (‘‘Seadrift’’), by their 

respective attorneys, have consented to 

the entry of this Final Judgment without 

trial or adjudication of any issue of fact 

or law, and without this Final Judgment 

constituting 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, this Final Judgment 

requires the prompt and certain 

modification of particular contracts to 

which GrafTech is a party and the 

imposition of certain conduct 

restrictions and obligations on GrafTech 

to assure that competition is 

maintained; 

And whereas, GrafTech has 

represented to the United States that the 

contract modifications required below 

can and will be made, that GrafTech 

will abide by the conduct restrictions 

and obligations required below, and that 

GrafTech will later raise no claim of 

hardship or difficulty as grounds for 

asking the Court to modify any of the 

provisions contained below; 

Now therefore, before any testimony 

is taken, without trial or adjudication of 

any issue of fact or law, 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, 15 U.S.C. 18, as 

amended. 

II. Definitions 

As used in this Final Judgment: 

A. ‘‘GrafTech’’ means defendant 

GrafTech International Ltd., a Delaware 

corporation with its headquarters in 

Parma, Ohio, its predecessor, UCAR 

International Ltd., its successors and 

assigns, and its subsidiaries, divisions, 

groups, affiliates, partnerships, and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

B. ‘‘Seadrift’’ means defendant Seadrift 

Coke L.P., a Delaware Limited 

Partnership with its headquarters in 

Port Lavaca, Texas, its successors and 

assigns, and its subsidiaries, divisions, 

groups, affiliates, partnerships, and joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

C. ‘‘Conoco’’ means ConocoPhillips 

Company, a Delaware corporation with 

headquarters in Houston, Texas, which 

includes the subsidiaries managing the 

production facilities in Lake Charles, 

Louisiana and South Killinghorne, 

England, as well as all other successors 

and assigns, and its subsidiaries, 

divisions, groups, affiliates, 

partnerships, and joint ventures, and 

their directors, officers, managers, 

agents, and employees. 

D. The ‘‘Supply Agreement’’ 

encompasses those two agreements 

effective January 1, 2001, between 

GrafTech and Conoco, which relate to 

the provision of petroleum needle coke 

and any agreement created to supersede, 

modify or amend those agreements. 

E. ‘‘Contract’’ means any agreement, 

understanding, amendment, 

modification or other document 

describing the commercial terms of sale. 

F. ‘‘Merger’’ means GrafTech’s 

proposed purchase of the 81.1 percent 

of voting securities of Seadrift that it 

does not already own, and the 

concurrent merger between GrafTech 

and Seadrift, pursuant to the agreement 

executed on April 1, 2010. 

G. ‘‘Exempted Employee’’ means any 

employee of Defendants who is not a 

GrafTech Covered Employee or Seadrift 

Covered Employee, including: (a) 

GrafTech’s Chief Executive Officer and 

Chief Financial Officer; and (b) any 

employee of Defendants whose primary 

responsibilities includes accounting, 

tax, corporate development, human 

resources, legal, information systems, 

and/or finance. 

H. ‘‘GrafTech Covered Employee’’ 

means any employee of GrafTech other 

than an Exempted Employee whose 

principal job responsibility involves the 

operation or day-to-day management of 

GrafTech’s Industrial Materials or 

Engineered Solutions businesses. 

I. ‘‘Petroleum Needle Coke Supplier 

Confidential Information’’ means all 

information provided, disclosed, or 

otherwise made available to GrafTech 

by petroleum needle coke suppliers or 

potential petroleum needle coke 

suppliers that is not in the public 

domain, including but not limited to 

information related to such suppliers’ 

current or future output, capacity, 

prices, or forecasted shutdown 

schedules, but does not include prices 

paid by GrafTech or quantities 

purchased by GrafTech from a 

petroleum needle coke supplier. 

J. ‘‘Seadrift Covered Employee’’ means 

any employee of Seadrift other than an 

Exempted Employee whose principal 

job responsibility involves the operation 

or day-to-day management of Seadrift’s 

petroleum needle coke business. 

K. ‘‘Seadrift Customer Confidential 

Information’’ means all information 

provided, disclosed, or otherwise made 

available to Seadrift by Seadrift 

customers or potential customers that is 

not in the public domain, including but 

not limited to information related to 

such customers’ current or future 

purchases, output, capacity, prices, or 

forecasted shutdown schedules. 

III. Applicability 

This Final Judgment applies to 

Defendants GrafTech and Seadrift, as 

defined above, and all other persons in 

active concert or participation with 

them who receive actual notice of this 

Final Judgment by personal service or 

otherwise. 

IV. Required Conduct 

A. Defendants shall not consummate 

the Merger until the Supply Agreements 

have been modified in a manner 

consistent with this Final Judgment, 

including compliance with the 

following conditions: 

1. The audit rights described in 

section 5.6 of the Supply Agreement 

shall be deleted and have no further 

force or effect. 

2. The most-favored-nation basis price 

clause included in section 12.3.C of the 

Supply Agreement shall be deleted and 

have no further force or effect. 

B. Defendants shall not agree to 

incorporate the following provisions in 

any future contract with Conoco for the 

provision of petroleum needle coke: 

1. Any provision that grants to 

Defendants the right to audit or 

otherwise review the non-public 

financial and commercial records of 

Conoco, or grants such rights to Conoco 

with respect to Defendant’s non-public 

financial and commercial records. 

2. Any provision that grants to 

Defendants the right to obtain any nonpublic information about third-party 

petroleum needle coke pricing or related 

commercial terms from Conoco, or 

grants such rights to Conoco with 

respect to Defendants’ non-public 

information about third-party petroleum 

needle coke pricing or related 

commercial terms. 


emcdonald on DSK2BSOYB1PROD with NOTICES
Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Notices 76035 

C. Beginning on the date of entry of 

this Final Judgment and continuing for 

the term of the Final Judgment: 

1. Within two business days of 

execution, Defendants shall provide to 

the United States complete and 

unredacted copies of any Contract 

formed between Defendants and Conoco 

relating to the provision of petroleum 

needle coke. 

2. Within ten business days of the end 

of each quarter, Defendants shall 

provide to the United States a copy of 

documents prepared in the ordinary 

course of business sufficient to show: 

(a) Seadrift’s projection of demand 

and sales for petroleum needle coke in 

the subsequent twelve-month period; 

(b) Seadrift’s year-to-date production 

and sales of petroleum needle coke 

versus forecast; and 

(c) Seadrift’s changes to petroleum 

needle coke production capacity or 

other major capital projects, and capital 

spending by project. 

3. If, at any time, Defendants elect to 

make a change in Seadrift’s capacity or 

production plans that changes Seadrift’s 

annual output by more than ten percent 

and that is not reflected in the most 

recent document provided in response 

to Paragraph IV(C)(1) or (2), Defendants 

shall: 

(a) within two business days provide 

the Division written notice of that 

change; and 

(b) within ten business days provide 

any documents prepared in the ordinary 

course of business that describe the 

change, reflect the reasons for the 

change or project the impact of that 

change. 

D. All documents required to be 

produced to the United States under 

Paragraph IV(C) shall be delivered by 

certified mail to the following address: 

Chief, Litigation II Section, Antitrust 

Division, Department of Justice, 450 

Fifth St., NW., Washington, DC 20530. 

V. Prohibited Conduct 

A. Subject to Paragraph V(B), 

Defendants shall not: 

1. disclose to any GrafTech Covered 

Employee any Seadrift Customer 

Confidential Information; or 

2. disclose to any Seadrift Covered 

Employee any Petroleum Needle Coke 

Supplier Confidential Information. 

B. Notwithstanding the provisions of 

Paragraph V(A), GrafTech may: 

1. disclose to Seadrift Covered 

Employees information regarding 

GrafTech’s purchases of petroleum 

needle coke from petroleum needle coke 

suppliers other than Seadrift; 

2. disclose to any GrafTech Covered 

Employee any Petroleum Needle Coke 

Supplier Confidential Information; 

3. disclose Petroleum Needle Coke 

Supplier Confidential Information to an 

Exempted Employee who requires the 

information in order to perform his or 

her job function(s); provided, however, 

that such Exempted Employee may not 

use Petroleum Needle Coke Supplier 

Confidential Information to perform any 

job function(s) that primarily involve(s) 

the day-to-day operation or management 

of Seadrift’s needle coke business; 

4. disclose Seadrift Customer 

Confidential Information to an 

Exempted Employee who requires the 

information in order to perform his or 

her job function(s); provided, however, 

that such Exempted Employee may not 

use Seadrift Customer Confidential 

Information to perform any job 

function(s) that primarily involve(s) the 

day-to-day operation or management of 

GrafTech’s Industrial Materials or 

Engineered Solutions businesses; and 

5. disclose Petroleum Needle Coke 

Supplier Confidential Information and/ 

or Seadrift Customer Confidential 

Information to any Defendant employee 

where so required by law, government 

regulation, legal process, or court order, 

so long as such disclosure is limited to 

fulfillment of that purpose. 

VI. Compliance Inspection 

A. For the 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 

authorized representatives of the United 

States Department of Justice Antitrust 

Division (‘‘Antitrust Division’’), 

including consultants and other persons 

retained by the United States, shall, 

upon written request of an authorized 

representative of the Assistant Attorney 

General in charge of the Antitrust 

Division, and on reasonable notice to 

Defendant, be permitted: 

1. access during Defendants’ office 

hours to inspect and copy, or at the 

option of the United States, to require 

Defendants to provide hard copies or 

electronic copies of, all books, ledgers, 

accounts, records, data, 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 an 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, Defendants shall 

submit written reports or response to 

written interrogatories, 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 or pursuant to Paragraph IV(C) 

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)(1)(G) 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)(1)(G) 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). 

VII. 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 out or 

construe this Final Judgment, to modify 

any of its provisions, to enforce 

compliance, and to punish violations of 

its provisions. 

VIII. Expiration of Final Judgment 

Unless this Court grants an extension, 

this Final Judgment shall expire ten (10) 

years from the date of its entry. 

IX. Public Interest Determination 

Entry of this Final Judgment is in the 

public interest. The parties have 

complied with the requirements of the 

Antitrust Procedures and Penalties Act, 

15 U.S.C. 16, including making copies 

available to the public of this Final 

Judgment, the Competitive Impact 

Statement, and any comments thereon 

and the United States’s responses to 

comments. Based upon the record 

before the Court, which includes the 

Competitive Impact Statement and any 

comments and response to comments 


emcdonald on DSK2BSOYB1PROD with NOTICES
76036 Federal Register / Vol. 75, No. 234 / Tuesday, December 7, 2010 / Notices 

filed with the Court, entry of this Final 

Judgment is in the public interest. 

Date: ___, 20ll 

Court approval subject to procedures 

of the Antitrust Procedures and 

Penalties Act, 15 U.S.C. 16. 

lllllllllllllllllll

Honorable 

[FR Doc. 2010–30621 Filed 12–6–10; 8:45 am] 

BILLING CODE P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

[TA–W–64,083] 

American Axle & Manufacturing Detroit 

Manufacturing Complex Holbrook 

Avenue and Saint Aubin Including OnSite Leased Workers From Paint Tech 

International Detroit, MI; 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), and 

Section 246 of the Trade Act of 1974 (26 

U.S.C. 2813), as amended, the 

Department of Labor issued a 

Certification of Eligibility to Apply for 

Worker Adjustment Assistance and 

Alternative Trade Adjustment 

Assistance on November 24, 2008, 

applicable to workers of American Axle 

& Manufacturing, Detroit Manufacturing 

Complex, Detroit, Michigan. The 

Department’s Notice was published in 

the Federal Register on December 10, 

2008 (73 FR 75137). 

The Department’s Notice was 

amended on January 8, 2009 to clarify 

that the certification is to cover all 

workers of American Axle & 

Manufacturing, Detroit Manufacturing 

Complex, including those workers in 

forge and non-forge plants at Holbrook 

Avenue and Saint Aubin, Detroit, 

Michigan (subject firm). The 

Department’s Notice was published in 

the Federal Register on January 15, 

2009 (74 FR 2633). 

The subject firm produces drivetrain 

components for the automotive industry 

including axle, steering, linkage, and 

other metal-formed products. 

At the request of the State agency, the 

Department reviewed the certification 

for workers of the subject firm. 

New information revealed that 

workers leased from Paint Tech 

International were employed on-site at 

the Detroit, Michigan location of 

American Axle & Manufacturing, Detroit 

Manufacturing Complex, Holbrook 

Avenue and Saint Aubin. The 

Department has determined that these 

workers were sufficiently under the 

control of American Axle & 

Manufacturing, Detroit Manufacturing 

Complex, Holbrook Avenue and Saint 

Aubin to be considered leased workers. 

Based on these findings, the 

Department is amending this 

certification to include workers leased 

from Paint Tech International working 

on-site at the Detroit, Michigan location 

of American Axle & Manufacturing, 

Detroit Manufacturing Complex, 

Holbrook Avenue and Saint Aubin. 

The amended notice applicable to 

TA–W–64,083 is hereby issued as 

follows: 

All workers of American Axle & 

Manufacturing, Detroit Manufacturing 

Complex, Holbrook Avenue and Saint Aubin, 

including on-site leased workers from Paint 

Tech International, Detroit, Michigan, who 

became totally or partially separated from 

employment on or after September 16, 2007, 

through November 24, 2010, 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 18th day of 

November 2010. 

Del Min Amy Chen, 

Certifying Officer, Office of Trade Adjustment 

Assistance. 

[FR Doc. 2010–30539 Filed 12–6–10; 8:45 am] 

BILLING CODE 4510–FN–P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

[TA–W–74,250] 

Charming Shoppes of Delaware, Inc. 

Accounts Payable, Rent, Merchandise 

Disbursement Divisions, and Payroll 

Department Within the Shared Service 

Center, Bensalem, PA; Amended 

Certification Regarding Eligibility To 

Apply for Worker Adjustment 

Assistance 

In accordance with Section 223 of the 

Trade Act of 1974, as amended (‘‘Act’’), 

19 U.S.C. 2273, the Department of Labor 

issued a Certification of Eligibility to 

Apply for Worker Adjustment 

Assistance on June 30, 2010, applicable 

to workers of Charming Shoppes of 

Delaware, Inc., including the Accounts 

Payable, Rent, and Merchandise 

Disbursement Divisions within the 

Shared Service Center, Bensalem, 

Pennsylvania. The Department’s notice 

of determination was published in the 

Federal Register on July 16, 2010 (75 FR 

41526). 

At the request of a company official, 

the Department reviewed the 

certification for workers of the subject 

firm. The workers, all of the same 

division, are engaged in activities 

related to the supply of accounts 

payable, rent, merchandise 

disbursement services, and payroll. 

The company reports that workers 

engaged in activities related to the 

supply of payroll services were 

inadvertently excluded from the 

certification decision. 

The amended notice applicable to 

TA–W–74,250 is hereby issued as 

follows: 

All workers of Charming Shoppes of 

Delaware, Inc., including the Accounts 

Payable, Rent, Merchandise Disbursement 

Divisions, and Payroll Department within the 

Shared Service Center, Bensalem, 

Pennsylvania who became totally or partially 

separated from employment on or after June 

15, 2009 through June 30, 2012, and all 

workers in the group threatened with total or 

partial separation from employment on date 

of certification through two years from the 

date of certification, are eligible to apply for 

adjustment assistance under Chapter 2 of 

Title II of the Trade Act of 1974, as amended. 

Signed in Washington, DC, this 24th day of 

November 2010. 

Elliott S. Kushner, 

Certifying Officer, Office of Trade Adjustment 

Assistance. 

[FR Doc. 2010–30536 Filed 12–6–10; 8:45 am] 

BILLING CODE 4510–FN–P 

DEPARTMENT OF LABOR 

Employment and Training 

Administration 

[TA–W–72,892] 

Bostik, Inc. Formerly Known as ATO 

Findley Marshall, MI; Amended 

Certification Regarding Eligibility To 

Apply for Worker Adjustment 

Assistance 

In accordance with Section 223 of the 

Trade Act of 1974, as amended (‘‘Act’’), 

19 U.S.C. 2273, the Department of Labor 

issued a Certification of Eligibility to 

Apply for Worker Adjustment 

Assistance on December 28, 2009, 

applicable to workers of Bostik, Inc., a 

subsidiary of Elf Aquitaine, Marshall, 

Michigan. The notice was published in 

the Federal Register on February 16, 

2010 (75 FR 7033). 

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 adhesives and sealants. 

New information shows that Bostik, 

Inc. was formerly known as ATO 


emcdonald on DSK2BSOYB1PROD with NOTICES