[Federal Register Volume 74, Number 191 (Monday, October 5, 2009)]
[Notices]
[Pages 51151-51153]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-23826]


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FEDERAL TRADE COMMISSION

[File No. 901 0086]


K+S Aktiengesellschaft; Analysis of Agreement Containing Consent 
Order to Aid Public Comment

AGENCY: Federal Trade Commission.

ACTION: Proposed Consent Agreement.

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SUMMARY: The consent agreement in this matter settles alleged 
violations of federal law prohibiting unfair or deceptive acts or 
practices or unfair methods of competition. The attached Analysis to 
Aid Public Comment describes both the allegations in the draft 
complaint and the terms of the consent order -- embodied in the consent 
agreement -- that would settle these allegations.

DATES: Comments must be received on or before October 26, 2009.

ADDRESSES: Interested parties are invited to submit written comments 
electronically or in paper form. Comments should refer to``K+S 
International Salt, File No. 901 0086'' to facilitate the organization 
of comments. Please note that your comment -- including your name and 
your state -- will be placed on the public record of this proceeding, 
including on the publicly accessible FTC website, at (http://www.ftc.gov/os/publiccomments.shtm).
    Because comments will be made public, they should not include any 
sensitive personal information, such as an individual's Social Security 
Number; date of birth; driver's license number or other state 
identification number, or foreign country equivalent; passport number; 
financial account number; or

[[Page 51152]]

credit or debit card number. Comments also should not include any 
sensitive health information, such as medical records or other 
individually identifiable health information. In addition, comments 
should not include any ``[t]rade secret or any commercial or financial 
information which is obtained from any person and which is privileged 
or confidential. . . .,'' as provided in Section 6(f) of the FTC Act, 
15 U.S.C. 46(f), and Commission Rule 4.10(a)(2), 16 CFR 4.10(a)(2). 
Comments containing material for which confidential treatment is 
requested must be filed in paper form, must be clearly labeled 
``Confidential,'' and must comply with FTC Rule 4.9(c), 16 CFR 
4.9(c).\1\
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    \1\The comment must be accompanied by an explicit request for 
confidential treatment, including the factual and legal basis for 
the request, and must identify the specific portions of the comment 
to be withheld from the public record. The request will be granted 
or denied by the Commission's General Counsel, consistent with 
applicable law and the public interest. See FTC Rule 4.9(c), 16 CFR 
4.9(c).
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    Because paper mail addressed to the FTC is subject to delay due to 
heightened security screening, please consider submitting your comments 
in electronic form. Comments filed in electronic form should be 
submitted by using the following weblink: (https://public.commentworks.com/ftc/mortonsalt) and following the instructions 
on the web-based form. To ensure that the Commission considers an 
electronic comment, you must file it on the web-based form at the 
weblink: (https://public.commentworks.com/ftc/mortonsalt). If this 
Notice appears at (http://www.regulations.gov/search/index.jsp), you 
may also file an electronic comment through that website. The 
Commission will consider all comments that regulations.gov forwards to 
it. You may also visit the FTC website at (http://www.ftc.gov/) to read 
the Notice and the news release describing it.
    A comment filed in paper form should include the ``K+S 
International Salt, File No. 901 0086'' reference both in the text and 
on the envelope, and should be mailed or delivered to the following 
address: Federal Trade Commission, Office of the Secretary, Room H-135 
(Annex D), 600 Pennsylvania Avenue, NW, Washington, DC 20580. The FTC 
is requesting that any comment filed in paper form be sent by courier 
or overnight service, if possible, because U.S. postal mail in the 
Washington area and at the Commission is subject to delay due to 
heightened security precautions.
    The Federal Trade Commission Act (``FTC Act'') and other laws the 
Commission administers permit the collection of public comments to 
consider and use in this proceeding as appropriate. The Commission will 
consider all timely and responsive public comments that it receives, 
whether filed in paper or electronic form. Comments received will be 
available to the public on the FTC website, to the extent practicable, 
at (http://www.ftc.gov/os/publiccomments.shtm). As a matter of 
discretion, the Commission makes every effort to remove home contact 
information for individuals from the public comments it receives before 
placing those comments on the FTC website. More information, including 
routine uses permitted by the Privacy Act, may be found in the FTC's 
privacy policy, at (http://www.ftc.gov/ftc/privacy.shtm).

FOR FURTHER INFORMATION CONTACT: Jill Frumin, Bureau of Competition, 
600 Pennsylvania Avenue, NW, Washington, D.C. 20580, (202) 326-2458.

SUPPLEMENTARY INFORMATION: Pursuant to section 6(f) of the Federal 
Trade Commission Act, 38 Stat. 721, 15 U.S.C. 46(f), and Sec.  2.34 the 
Commission Rules of Practice, 16 CFR 2.34, notice is hereby given that 
the above-captioned consent agreement containing a consent order to 
cease and desist, having been filed with and accepted, subject to final 
approval, by the Commission, has been placed on the public record for a 
period of thirty (30) days. The following Analysis to Aid Public 
Comment describes the terms of the consent agreement, and the 
allegations in the complaint. An electronic copy of the full text of 
the consent agreement package can be obtained from the FTC Home Page 
(for September 25, 2009), on the World Wide Web, at (http://www.ftc.gov/os/actions.shtm). A paper copy can be obtained from the FTC 
Public Reference Room, Room 130-H, 600 Pennsylvania Avenue, NW, 
Washington, D.C. 20580, either in person or by calling (202) 326-2222.
    Public comments are invited, and may be filed with the Commission 
in either paper or electronic form. All comments should be filed as 
prescribed in the ADDRESSES section above, and must be received on or 
before the date specified in the DATES section.

Analysis of Agreement Containing Consent Order to Aid Public Comment

I. Introduction

    The Federal Trade Commission (``Commission'') has accepted, subject 
to final approval, an Agreement Containing Consent Order (``Consent 
Agreement'') from K+S Aktiengesellschaft (``K+S''), and its subsidiary, 
International Salt Company LLC (``ISCO''), that is designed to remedy 
the anticompetitive effects that would otherwise result from K+S's 
proposed acquisition of Morton International, Inc. (``Morton''), from 
The Dow Chemical Company (``Dow''). Under the terms of the proposed 
Consent Agreement, K+S is required to divest assets related to its bulk 
de-icing salt business in Maine to an up-front buyer, Eastern Salt 
Company, Inc. (``Eastern Salt'' or ``Maine Purchaser''), and to divest 
assets related to its bulk de-icing salt business in Connecticut to an 
up-front buyer, Granite State Minerals, Inc. (``Granite State'' or 
``Connecticut Purchaser'').
    The proposed Consent Agreement has been placed on the public record 
for thirty (30) days to solicit comments from interested persons. 
Comments received during this period will become part of the public 
record. After thirty (30) days, the Commission will again review the 
proposed Consent Agreement and will decide whether it should withdraw 
from the proposed Consent Agreement, modify it, or make final the 
Decision and Order (``Order'').
    Pursuant to a Stock Purchase Agreement dated April 1, 2009 (the 
``Agreement''), K+S proposes to acquire Morton from Dow for 
approximately $1.675 billion (the ``Acquisition''). The Commission's 
complaint alleges that the proposed Acquisition, if consummated, would 
violate Section 7 of the Clayton Act, as amended, 15 U.S.C. Sec.  18, 
and Section 5 of the Federal Trade Commission Act, as amended, 15 
U.S.C. Sec.  45, by lessening competition in Maine and Connecticut for 
the sale and delivery of bulk de-icing road salt.

II. The Parties

    K+S is currently one of the world's leading suppliers of salt 
products. K+S sells salt into the United States through its U.S. 
subsidiary, ISCO. Morton, headquartered in Chicago, Illinois, and a 
wholly-owned subsidiary of Dow, is a leading salt vendor in North 
America. Morton produces consumer salt, industrial salt, and de-icing 
salt. The acquisition of Morton will make K+S the largest producer and 
distributor of de-icing road salt for customers in Maine and 
Connecticut.

III. The Proposed Complaint

    According to the Commission's proposed Complaint, the relevant 
product market in which to assess the competitive effects of the 
proposed Acquisition is the sale and delivery of bulk de-icing salt. 
The evidence indicates that there are no practical

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substitutes for bulk de-icing salt to melt snow and ice. The relevant 
geographic markets in which to assess the impact of the proposed 
Acquisition are the states of Maine and Connecticut.
    The relevant markets are highly concentrated. ISCO and Morton are 
the two principal bidders in the states of Maine and Connecticut for 
the sale and delivery of bulk de-icing salt. Post acquisition, the 
combined entity will have a market share exceeding 70 percent in both 
Maine and Connecticut. Post-merger HHIs for Maine and Connecticut are 
5,142 and 5,834, and the acquisition will increase HHI levels by 1,914 
and 2,642, respectively. These market concentration levels far exceed 
the thresholds set forth in the Horizontal Merger Guidelines and thus 
create a presumption that the proposed merger will create or enhance 
market power.
    Entry into the relevant markets is difficult because, among other 
things, there is a lack of acceptable stockpile space along the coasts 
of Maine and Connecticut. As a result, new entry sufficient to achieve 
a significant market impact within two years is unlikely.
    Finally, the Complaint alleges that the proposed Acquisition will 
reduce competition in the relevant markets by eliminating direct and 
substantial competition between ISCO and Morton, and by increasing the 
likelihood that ISCO would increase prices either unilaterally or 
through coordinated interaction with the few remaining firms in the 
relevant markets.

IV. The Consent Agreement

    To preserve the competition that otherwise would be eliminated by 
the Acquisition, the proposed Consent Agreement requires ISCO to divest 
to Commission-approved buyers, Eastern Salt and Granite State, assets 
sufficient to enable these buyers to become viable competitors for the 
de-icing salt business in the relevant markets beginning with the 2010-
2011 bidding cycle. ISCO will divest to Eastern Salt the Maine 
Divestiture Assets, including: 1) stockpile space in the state, 2) all 
associated handling and trucking contracts, and 3) a book of de-icing 
salt business for the 2009-2010 winter season. ISCO will divest to 
Granite State the Connecticut Divestiture Assets, including: 1) 
stockpile space in the state, 2) all associated handling and trucking 
contracts, 3) a book of de-icing salt business for the 2009-2010 winter 
season, and 4) a three-year supply of de-icing salt at a price that is 
no more than ISCO's costs.
    The Commission has preliminarily determined that Eastern Salt is a 
well-qualified buyer of the Maine Divestiture Assets and is well 
situated to replace the competition Morton provided in the state. 
Eastern Salt is a family-owned company that has been a de-icing salt 
supplier in other geographic markets along the East Coast for roughly 
60 years. Eastern Salt is a vertically-integrated supplier with a 
dependable, high-quality supply of de-icing salt. With the divested 
assets, Eastern Salt will be well positioned to compete for future 
business in Maine and to deliver salt to customers in a timely manner.
    The Commission has preliminarily determined that Granite State is a 
well-qualified buyer of the Connecticut Divestiture Assets and is well 
situated to replace the competition Morton provided in the state. 
Granite State has experience supplying de-icing salt to customers in a 
number of states along the East Coast. The Consent Agreement requires 
ISCO to provide Granite State with a three-year supply of bulk de-icing 
salt at no more than ISCO's costs. The supply requirement will ensure 
that Granite State has a supply of salt in Connecticut during the 2010-
2011 and 2011-2012 bid cycles while Granite State develops the 
necessary supply arrangements to serve Connecticut customers in 
subsequent years. With the divested assets, Granite State will be well 
positioned to compete for future business in Connecticut and to deliver 
salt to customers in a timely manner.
    The proposed Consent Agreement requires that the divestitures occur 
no later than twenty (20) days after the Acquisition is consummated. 
However, if ISCO divests the assets to Eastern Salt or Granite State 
during the public comment period, and if, at the time the Commission 
decides to make the Order final, the Commission notifies K+S or ISCO 
that either purchaser is not an acceptable acquirer or that the asset 
purchase agreement with the Maine Purchaser or Connecticut Purchaser is 
not an acceptable manner of divestiture, then ISCO must immediately 
rescind the transaction in question and divest those assets to another 
buyer within six (6) months of the date the Order becomes final. At 
that time, Respondents must divest those assets only to an acquirer and 
in a manner that receives the prior approval of the Commission. The 
proposed Consent Agreement also enables the Commission to appoint a 
trustee to divest any assets identified in the Order that K+S or ISCO 
has not divested to satisfy the requirements of the Order.
    The proposed Consent Agreement further requires K+S and ISCO to 
maintain the viability and marketability of the Maine Divestiture 
Assets and the Connecticut Divestiture Assets and to prevent the 
destruction, removal, wasting, deterioration, or impairment of those 
assets prior to divestiture.
    In order to ensure that the Commission remains informed about the 
status of the divestitures, the proposed Consent Agreement requires K+S 
and ISCO to file reports with the Commission periodically until the 
divestitures are completed. Written reports describing how K+S and ISCO 
are complying with the Order must be filed one year after the Order 
becomes final and annually for the next three (3) years.
    The purpose of this analysis is to facilitate public comment on the 
proposed Consent Agreement, and it is not intended to constitute an 
official interpretation of the proposed Consent Agreement or to modify 
its terms in any way.
    By direction of the Commission.

Donald S. Clark
Secretary.
[FR Doc. E9-23826 Filed 10-2-09: 6:40 am]
BILLING CODE: 6750-01-S