50084 Federal Register / Vol. 71, No. 164 / Thursday, August 24, 2006 / Notices 

Bureau of Indian Education, 1849 C 

Street, NW., MS–3609 MIB, 

Washington, DC 20240; Telephone (202) 

208–6123; Fax (202) 208–3312. 

FOR FURTHER INFORMATION CONTACT: 

Lynann Barbero, Acting Supervisory 

Education Specialist—Special 

Education, Bureau of Indian Education, 

Division of Compliance, Monitoring and 

Accountability, P.O. Box 1088, Suite 

332, Albuquerque, New Mexico 87103; 

Telephone (505) 563–5270. 

SUPPLEMENTARY INFORMATION: The 

Advisory Board was established to 

advise the Secretary of the Interior, 

through the Assistant Secretary—Indian 

Affairs, on the needs of Indian children 

with disabilities, as mandated by the 

Individuals with Disabilities Education 

Improvement Act of 2004 (Pub. L. 108–

446). 

The following items will be on the 

agenda: 

• State Performance Plan. 

• Special Education Supervisor 

Report. 

• Part B State Administrative setaside budget. 

• Updates on Priority Issues. 

• Compliance and Monitoring. 

• Procedural Safeguards. 

• Institutionalized Handicapped 

Program. 

• Early Childhood Program. 

• Coordinated Services Plan. 

• Update on final IDEIA regulations. 

The meetings are open to the public. 

Dated: August 21, 2006. 

Michael D. Olsen, 

Principal Deputy Assistant Secretary—Indian 

Affairs. 

[FR Doc. E6–14055 Filed 8–23–06; 8:45 am] 

BILLING CODE 4310–6W–P 

DEPARTMENT OF THE INTERIOR 

Bureau of Land Management 

[MT–039–1020–PK] 

Notice of Public Meeting, Dakotas 

Resource Advisory Council Meeting 

AGENCY: Bureau of Land Management, 

Interior. 

ACTION: Notice of public meeting. 

SUMMARY: In accordance with the 

Federal Land Policy and Management 

Act (FLPMA) and the Federal Advisory 

Committee Act of 1972 (FACA), the U.S. 

Department of the Interior, Bureau of 

Land Management (BLM), Dakotas 

Resource Advisory Council will meet as 

indicated below. 

DATES: A meeting will be held October 

26 and 27, 2006, at the Bureau of Land 

Management and U.S. Forest Service 

Lands and Minerals Center at 99 23rd 

Avenue West, Dickinson, ND 58601, 

beginning at 1 p.m. The public comment 

period will begin at 8 a.m. on October 

27, 2006. 

SUPPLEMENTARY INFORMATION: The 15- 

member Council advises the Secretary 

of the Interior, through the Bureau of 

Land Management, on a variety of 

planning and management issues 

associated with public land 

management in North and South 

Dakota. All meetings are open to the 

public. The public may present written 

comments to the Council. Each formal 

Council meeting will also have time 

allocated for hearing public comments. 

Depending on the number of persons 

wishing to comment and time available, 

the time for individual oral comments 

may be limited. Individuals who plan to 

attend and need special assistance, such 

as sign language interpretation, or other 

reasonable accommodations, should 

contact the BLM as provided below. The 

Council will hear updates to Recreation 

Resource Advisory Committee roles, 

Sage Grouse Conservation, and 

upcoming resource management 

planning efforts. 

FOR FURTHER INFORMATION CONTACT: 

Marian Atkins, Field Manager, South 

Dakota Field Office, 310 Roundup St., 

Belle Fourche, South Dakota, 

605.892.7000, or Lonny Bagley, Field 

Manager, North Dakota Field Office, 

2933 3rd Ave. W. Dickinson, North 

Dakota, 701.227.7700. 

Dated: August 17, 2006. 

Lonny R. Bagley, 

Field Manager. 

[FR Doc. E6–14027 Filed 8–23–06; 8:45 am] 

BILLING CODE 4310–$$–P 

DEPARTMENT OF JUSTICE 

Notice of Lodging of Consent Decree 

Under the Comprehensive 

Environmental Response, 

Compensation, and Liability Act 

Notice is hereby given that on August 

8, 2006, a proposed Consent Decree in 

United States v. University of Miami, 

Civil Action Number 06–22000–CIV–

JORDAN, was lodged with the United 

States District Court for the Southern 

District of Florida. 

In this action the United States 

sought, under Section 107 of the 

Comprehensive Environmental 

Response, Compensation, and Liability 

Act, 42 U.S.C. 9607, recovery of 

response costs incurred by the Army 

Corps of Engineers in response to 

releases of hazardous substances at a 

site located on land that was formerly 

the Richmond Naval Air Station, in 

Perrine, Florida. Under the Consent 

Decree, the Defendant will pay $393,473 

for past response costs associated with 

the site, and the United States gives a 

covenant not to sue for past response 

costs associated with the site. 

The Department of Justice will 

receive, for a period of thirty (30) days 

from the date of this publication, 

comments relating to the proposed 

Consent Decree. Comments should be 

addressed to the Assistant Attorney 

General, Environment and Natural 

Resources Division, P.O. Box 7611, U.S. 

Department of Justice, Washington, DC 

20044–7611, and should refer to United 

States v. University of Miami, DOJ Ref. 

#90–11–3–08486. 

The Consent Decree may be examined 

at the Office of the United States 

Attorney for the Southern District of 

Florida, 99 NE 4th Street, Miami, 

Florida. During the public comment 

period, the proposed Consent Decree 

may be examined on the following 

Department of Justice Web site: http:// 

www.usdoj.gov/enrd/ 

consentlDecrees.html. A copy of the 

proposed Consent Decree may also be 

obtained by mail from the Consent 

Decree Library, P.O. Box 7611, U.S. 

Department of Justice, 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 

$4.25 (25 cents per page reproduction 

cost) payable to the U.S. Treasury, or, if 

by E-mail or fax, forward a check in that 

amount to the Consent Decree Library at 

the stated address. 

Henry Friedman, 

Assistant Section Chief, Environmental 

Enforcement Section, Environment and 

Natural Resources Division. 

[FR Doc. 06–7106 Filed 8–23–06; 8:45am] 

BILLING CODE 4410–15–M 

DEPARTMENT OF JUSTICE 

Antitrust Division 

United States v. Mittal Steel Company 

N.V. 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 Complaint, 

proposed Final Judgment, Hold Separate 

Stipulation and Order, and Competitive 

Impact Statement were filed with the 

United States District Court for the 

District of Columbia in United States v. 


rmajette on PROD1PC67 with NOTICES1
Federal Register / Vol. 71, No. 164 / Thursday, August 24, 2006 / Notices 50085 

Mittal Steel Company N.V. Civil Action 

No. 1:06CY01360. On August 1, 2006, 

the United States filed a Complaint to 

enjoin Mittal Steel Company N.Y. 

(‘‘Mittal Steel’’) from acquiring Arcelor 

S.A. (‘‘Arcelor’’). The Complaint alleges 

that Mittal Steel’s acquisition of Arcelor 

would substantially lessen competition 

in the development, manufacture, and 

sale of Tin Mill Products in violation of 

Section 7 of the Clayton Act, as 

amended, 15 U.S.C. 18, throughout the 

United States east of the Rocky 

Mountains (the ‘‘Eastern United 

States’’). The proposed Final Judgment, 

filed August 1, 2006, requires 

defendant, Mittal Steel, to divest one of 

their three North American tin mills it 

will own after the acquisition to 

preserve competition in the sale of Tin 

Mill Products. A Hold Separate 

Stipulation and Order, entered by the 

Court on August 2, 2006, requires 

defendant to maintain, prior to 

divestiture, the competitive 

independence and economic viability 

ofthe assets subject to divestiture under 

the proposed Final Judgment. A 

Competitive Impact Statement filed by 

the United States describes the 

Complaint, proposed Final Judgment, 

Hold Separate Stipulation and Order, 

and the remedies available to private 

litigants who may have been injured by 

the alleged violations. 

Copies of the Complaint, proposed 

Final Judgment, Hold Separate 

Stipulation and Order, and Competitive 

Impact Statement are available for 

inspection at the U.S. Department of 

Justice, Antitrust Division, 325 Seventh 

Street, NW., Room 215, Washington, 

D.C. 20530 (telephone: 202–514–2481), 

and at the Clerk’s Office of the United 

States District Court for the District of 

Columbia, Washington, DC. Copies of 

these materials may be obtained upon 

request and payment of a copying fee set 

by the U.S. Department of Justice 

regulations. 

Public comment is invited within the 

statutory 60-day comment period. 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, 1401 H 

Street, N.W., Suite 3000, Washington, 

D.C. 20530 (telephone: 202–307–0924). 

J. Robert Kramer: II, 

Director of Operations. 

United States District Court for the 

District of Columbia 

United States of America, U.S. 

Department of Justice, Antitrust 

Division, 1401 H Street, NW., Suite 

3000, Washington, DC 20530. Plaintiff, 

v. Mittal Steel Company N.V., Hofplein 

20, 15th Floor, Rotterdam, The 

Netherlands, 3032. Defendant. 

Case No. 

JUDGE: 

DECK TYPE: Antitrust 

DATE STAMP: 

Complaint 

The United States of America, acting 

under the direction of the Attorney 

General of the United States, brings this 

civil antitrust action to obtain equitable 

and other relief against the defendant, 

Mittal Steel Company N.V. (‘‘Mittal 

Steel’’), to prevent its proposed 

acquisition of Arcelor S.A. (‘‘Arcelor’’), 

and alleges as follows: 

I. Nature of the Action 

1. Mittal Steel formally launched a 

tender offer for Arcelor on May 19, 

2006, and on June 25, 2006 the Arcelor 

board recommended Mittal’s offer to 

Arcelor’s shareholders. The acceptance 

period for Mittal’s tender offer cJosed on 

July 13,2006, and Mittal Steel can take 

ownership of the shares beginning on 

August 1, 2006. 

2. Mittal Steel is an integrated 

steelmaker that manufactures, among 

other products, finely rolled tin or 

chrome coated steel sheets known as 

‘‘Tin Mill Products.’’ Tin Mill Products 

are used in manufacturing steel cans for 

packaging a wide range of food products 

such as soup, fruits, and vegetables, and 

non-food products such as paints, 

aerosols, and shaving cream. Mittal 

Steel is the second largest supplier of 

Tin Mill Products to the portion of the 

United States east of the Rocky 

Mountains (the ‘‘Eastern United 

States’’), accounting for about 31 

percent of Tin Mill Products tonnage 

sold in 2005. 

3. Arcelor accounted for about two 

percent of Tin Mill Products tonnage 

sold in the Eastern United States in 

2005. Arcelor acquired its subsidiary 

Dofasco Inc. (‘‘Dofasco’’) in February 

2006. In 2005 Dofasco accounted for an 

additional four percent of the Tin Mill 

Products tonnage sold in 2005 in the 

Eastern United States. 

4. Mittal Steel’s proposed acquisition 

of Arcelor would eliminate Arcelor, 

including its subsidiary Dofasco, as an 

independent competitor in the sale of 

Tin Mill Products in the Eastern United 

States, further consolidating an already 

highly concentrated market. The largest 

supplier of Tin Mill Products sold in the 

Eastern United States, another 

integrated steelmaker, accounted for 

over 44 percent of the tons sold in 2005. 

If this merger were not enjoined, the two 

largest suppliers of Tin Mill Products 

would account for over 81 percent of 

2005 sales in the Eastern United States. 

5. The acquisition would remove 

current constraints on coordination and 

increase the incentives of the two largest 

firms to coordinate their behavior. The 

acquisition would thus substantially 

increase the likelihood of coordination 

and would likely lead to higher prices, 

lower quality, less innovation, and less 

favorable delivery terms in the Tin Mill 

Products market in the Eastern United 

States. 

6. Accordingly, the acquisition would 

substantially lessen competition in Tin 

Mill Products in the Eastern United 

States, in violation of Section 7 of the 

Clayton Act. 

II. Jurisdiction and Venue 

7. Plaintiff United States brings this 

action against defendant Mittal Steel 

under Section 15 of the Clayton Act, as 

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

restrain the violation by defendant of 

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

18. 

8. Defendant manufactures and sells 

Tin Mill Products in the flow of 

interstate commerce. Defendant’s 

activities in developing, manufacturing 

and selling Tin Mill Products 

substantially affect interstate commerce. 

This Court has subject matter 

jurisdiction over this action and the 

defendant pursuant to Section 12 of the 

Clayton Act, 15 U.S.C. 22, and 28 U.S.C. 

1331, 1337(a), and 1345. 

9. Venue is proper in this District 

pursuant to 28 U.S.C. 1391(d). 

Furthermore, defendant has consented 

to venue and personal jurisdiction in 

this judicial district. 

III. Parties to the Proposed Transaction 

10. Defendant Mittal Steel is a 

Netherlands corporation with its 

corporate headquarters and principal 

place of business in Rotterdam, The 

Netherlands, and operations in sixteen 

countries on four continents. Mittal 

Steel produces both flat and long steel 

products for all of the major steel 

consuming sectors, including 

automotive, appliance, machinery, and 

construction. Mittal Steel’s total 

worldwide revenues exceeded $28 

billion in 2005, and its total annual steel 


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50086 Federal Register / Vol. 71, No. 164 / Thursday, August 24, 2006 / Notices 

production exceeded 55 million tons. 

Mittal Steel produces Tin Mill Products 

in Sparrows Point, Maryland and 

Weirton, West Virginia. In 2005, Mittal 

Steel sold over 800,000 tons of Tin Mill 

Products in the Eastern United States. 

11. Arcelor is a Luxembourg 

corporation with its corporate 

headquarters and principal place of 

business in the City of Luxembourg. 

Arcelor, with operations primarily in 

Europe and Brazil, produces flat and 

long products for the automotive, 

appliance, packaging, and general 

industries. In 2005, Arcelor had 

approximately $41.5 billion in total 

worldwide revenues and steel 

production of 46 million tons. 

12. In February 2006 Arcelor acquired 

Dofasco, a wholly-owned Canadian 

subsidiary with its corporate 

headquarters and principal place of 

business in Hamilton, Ontario, Canada. 

Dofasco shipped 4.8 million tons of 

steel and had $3.9 billion in revenues in 

2005. Arcelor, which shipped Tin Mill 

Products to the Eastern United States 

primarily from its European facilities, 

and Dofasco, which shipped Tin Mill 

Products to the Eastern United States 

from its Canadian facility, sold a 

combined 170,615 tons of Tin Mill 

Products in the Eastern United States in 

2005. 

IV. The Proposed Transaction 

13. On January 27, 2006, Mittal Steel 

announced its intention to launch a 

hostile tender offer to acquire Arcelor 

for approximately $23 billion in cash 

and securities. Mittal Steel 

simultaneously announced an 

agreement to sell Dofasco for 

approximately $5 billion to a German 

steelmaker, ThyssenKrupp A.G. 

(‘‘ThyssenKrupp’’), if Mittal Steel 

acquired Arcelor. Arcelor initially 

resisted the hostile takeover. One of the 

steps Arcelor’s Board of Directors took 

to resist the takeover was to transfer 

legal title to the shares of Dofasco to an 

independent Dutch foundation known 

as a ‘‘stichting.’’

14. Mittal Steel subsequently 

increased its tender offer to 

approximately $33 billion in cash and 

securities and formally launched its 

tender offer on May 19, 2006. After 

Mittal Steel agreed to improve the 

financial, corporate govemance, and 

other terms of its offer for Arcelor, the 

Arcelor Board agreed on June 25, 2006 

to recommend Mittal’s offer to Arcelor’s 

shareholders. The acceptance period for 

Mittal’s initial tender offer, during 

which 92.6 percent of Arcelor’s shares 

were tendered, closed on July 13, 2006. 

Mittal Steel can take ownership of the 

shares beginning on August 1, 2006. 

V. Trade and Commerce 

A. Relevant Product Market 

15. Tin Mill Products are finely rolled 

steel sheets, usually coated with a thin 

protective layer of tin or chrome. Tin 

Mill Products are manufactured using a 

sequence of processing steps in which 

steel is rolled into successively thinner 

sheets, then hardened, and finally 

coated with either tin or chrome. 

16. Tin Mill Products are comprised 

of three types of steel: Black plate, 

electrolytic tin plate (‘‘ETP’’), and tin 

free steel (‘‘TFS’’). Black plate is a lightgauge cold-rolled bare steel sheet that 

serves as the substrate for production of 

both ETP and TFS and can be used bare 

for some applications, such as pails or 

larger containers. Black plate is coated 

with tin to produce ETP and with 

chrome to produce TFS. ETP and TFS 

are both used for packaging, although 

each provides different advantages and 

disadvantages (including, inter alia, 

organic coating acceptance, strength, 

surface finish and formability) that are 

considered by purchasers in making 

their purchase decisions. 

17. The majority of Tin Mill Products 

shipments are used to produce sanitary 

cans, often referred to as food cans. 

Other uses include aerosol cans, general 

line cans, pails, larger containers, metal 

buildings, and oil and fuel filter sheets. 

18. For most Tin Mill Products 

purchasers, including downstream food 

can customers, there are no close 

substitutes for Tin Mill Products. 

Packaging alternatives, such as plastic 

containers, are generally not viewed by 

can customers as replacements for 

products normally packaged in cans 

because of cost differences and the 

performance advantages associated with 

cans. Some of the advantages of steel 

cans compared to alternative packaging 

include their longer shelf life and 

greater durability, familiarity, and 

security. Alternative packaging 

generally costs at least as much as a 

steel can and sometimes costs as much 

as eight times as much as a can, and 

significant additional capital 

investments are necessary to incorporate 

alternative packaging materials into a 

customer’s packaging process. 

19. A small but significant increase in 

the price of Tin Mill Products would not 

cause can manufacturers or their 

downstream customers to substitute 

non-Tin Mill Products containers, or 

otherwise to reduce their purchases of 

Tin Mill Products, in sufficient 

quantities so as to make such a price 

increase unprofitable. The use of 

alternative packaging containers is 

driven primarily by capital equipment 

investment considerations and by 

marketing factors such as consumer 

convenience, rather than by small but 

significant changes in the prices of Tin 

Mill Products. For example, can 

customers often use alternative 

packaging in order to extend an existing 

product line, such as using alternative 

materials for portable microwavable 

containers for soup, while continuing to 

package the bulk of soup products in 

steel cans. 

20. Accordingly, the development, 

manufacture, and sale of Tin Mill 

Products is a line of commerce and a 

relevant product market within the 

meaning of Section 7 of the Clayton Act. 

B. Relevant Geographic Market 

21. The Eastern United States is a 

geographically distinct market for the 

sale of Tin Mill Products. The only Tin 

Mill Products manufacturer in the 

United States west of the Rocky 

Mountains (the ‘‘Western United 

States’’) is located in California, and it 

does not have substantial sales in the 

Eastern United States due to its distance 

from can manufacturers in that part of 

the country, which tend to be located in 

proximity to agricultural regions. That 

California Tin Mill Products 

manufacturer, half owned by one of the 

two largest Tin Mill Products producers 

in the Eastern United States, accounts 

for over 84 percent of the Tin Mill 

Products sold in the Western United 

States but ships only small quantities to 

the Eastern United States. Similarly, Tin 

Mill Products producers in the Eastern 

United States generally do not sell 

significant quantities in the Western 

United States because their treight costs 

are higher than those of the single 

manufacturer located in the Western 

United States. 

22. A small but significant increase in 

the price of Tin Mill Products would not 

cause Tin Mill Products customers in 

the Eastern United States to substitute 

purchases from outside of the Eastern 

United States in sufficient quantities so 

as to make such a price increase 

unprofitable. 

23. Accordingly, the Eastern United 

States is a relevant geographic market 

within the meaning of Section 7 of the 

Clayton Act. 

C. Anticompetitive Effects 

24. Currently, Mittal Steel and its 

primary competitor account for over 75 

percent of Tin Mill Products sales in the 

Eastern United States. Were Mittal Steel 

to acquire ArceJor, the largest two firms 

would account for over 81 percent of 

such sales. In 2005, Mittal Steel, 

Arcelor, Dofasco, and one other firm 

sold more than 2.1 million tons of Tin 


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Federal Register / Vol. 71, No. 164 / Thursday, August 24, 2006 / Notices 50087 

Mill Products in the Eastern United 

States. 

25. The market for Tin Mill Products 

in the Eastern United States would thus 

become substantially more concentrated 

if Mittal Steel were to acquire Arcelor 

and its Dofasco subsidiary. Using a 

measure of market concentration called 

the Herfindahl-Hirschman Index 

(‘‘HHI’’) (defined and explained in 

Appendix A), the proposed transaction 

will increase the HHI in the market for 

Tin Mill Products in the Eastern United 

States by approximately 412 points to a 

post-acquisition level of approximately 

3,522, well in excess of levels that raise 

significant antitrust concerns. 

26. Purchasers of Tin Mill Products in 

the Eastern United States have 

benefitted from competition between 

Mittal Steel and Arcelor through lower 

prices, higher quality, more innovation, 

and better delivery terms for Tin Mill 

Products. Arcelor and its subsidiary 

Dofasco are known for high quality and 

innovation, which forces Mittal Steel 

and other domestic producers to 

compete on these aspects as well. By 

acquiring Arcelor, Mittal Steel would 

eliminate that competition. 

27. Mittal Steel’s elimination of 

Arcelor as an independent competitor in 

the manufacture and sale of Tin Mill 

Products within the Eastern United 

States is likely to facilitate 

anticompetitive coordination among the 

two major Tin Mill Products 

manufacturers by making such 

coordination more profitable and harder 

to defeat. If the two largest Tin Mill 

Products firms in the Eastern United 

States were to seek to raise prices or 

reduce output today, purchasers of Tin 

Mill Products could purchase Tin Mill 

Products from Arcelor and its subsidiary 

Dofasco. Arcelor has substantial excess 

and divertible capacity in Europe, and 

Arcelor’s Dofasco subsidiary has 

significant divertible capacity in 

Canada. Were Arcelor and Dofasco no 

longer available as independent 

suppliers, the remaining domestic and 

foreign fringe producers would likely 

not have sufficient capacity and/or 

incentives to increase production 

enough to defeat an anticompetitive 

price increase or output reduction by 

the two largest firms. In particular, the 

only other incumbent producer located 

in the Eastern United States does not 

have the ability to manufacture coldrolled substrate, and its ability to obtain 

the additional substrate needed to 

increase its output is constrained. 

D. Entry and Expansion 

28. De novo entry into the 

development, manufacture and sale of 

Tin Mill Products is difficult, timeconsuming, and costly, and such entry 

would not be timely, likely, or sufficient 

to defeat coordination by the two largest 

Tin Mill Products firms in the Eastern 

United States post-merger. To produce 

Tin Mill Products, a firm needs a 

reliable source of cold-rolled substrate 

and a Tin Mill Products finishing 

facility. A facility to finish cold-rolled 

substrate into Tin Mill Products would 

likely cost in the range of $60 to $100 

million and take approximately two 

years to design and build. In addition, 

entry by a firm that lacks the ability to 

manufacture cold-rolled substrate or to 

increase its output of cold-rolled 

substrate would be more risky as it may 

not gain access to sufficient substrate to 

compete effectively. The cost of entry is 

largely ‘‘sunk,’’ i.e., it cannot be 

recovered or converted to other uses, 

raising the risk to entry, and there is a 

very high risk that a new entrant may 

not receive any profits from its entry. 

29. Significant new foreign entry or 

expansion of shipments to the Eastern 

United States by existing foreign 

producers is unlikely due to longer 

delivery lead times occasioned by the 

need for oceangoing transportation, 

additional shipping costs, trade barriers, 

the possibility of future import 

restrictions, and the reluctance of 

foreign Tin Mill Products manufacturers 

to abandon existing markets elsewhere 

in order to enter or expand in the 

Eastern United States. Overseas 

shipping increases the time between 

order and delivery by up to four 

months, which is unacceptable for most 

customers in the Eastern United States 

because their demand requirements 

fluctuate with hard-to-predict fruit and 

vegetable harvests. Capacity constraints 

also limit certain foreign producers from 

expanding their sales into the Eastern 

United States. 

30. Therefore, entry or expansion by 

any other finn into the Eastern United 

States Tin Mill Products market would 

not be timely, likely, or sufficient to 

deter post-acquisition coordination. 

VI. Violation Alleged 

31. The effect of the proposed 

acquisition of Arcelor by Mittal Steel 

would be to substantially lessen 

competition in interstate trade and 

commerce, in violation of Section 7 of 

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

32. Unless restrained, the transaction 

will likely have the following effects, 

among others: 

a. Competition generally in the 

development, manufacture and sale of 

Tin Mill Products in the Eastern United 

States would be substantially lessened; 

b. Actual and potential competition 

between Mittal Steel and Arcelor in the 

development, manufacture and sale of 

Tin Mill Products will be eliminated; 

and 

c. The prices for Tin Mill Products 

will likely increase, the quality of Tin 

Mill Products will likely decline, 

innovation relating to Tin Mill Products 

will likely decline, and the delivery 

terms currently offered in the Tin Mill 

Products market will likely become less 

favorable to customers. 

VII. Requested Relief 

33. Plaintiff requests that: 

a. Mittal Steel’s proposed acquisition 

of Arcelor be adjudged and decreed to 

be unlawful and in violation of Section 

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

b. Defendant and all persons acting on 

its behalf be permanently enjoined and 

restrained from consummating the 

proposed acquisition or from entering 

into or carrying out any contract, 

agreement, plan, or understanding, the 

effect of which would be to combine 

Mittal Steel with the operations of 

Arcelor; 

c. Plaintiff be awarded its costs for 

this action; and 

d. Plaintiff receive such other and 

further relief as the case requires and 

the Court deems just and proper. 

Dated: August 1, 2006. 

Respectfully submitted, 

For Plaintiff United States of America: 

Thomas O. Barnett, 

Assistant Attorney General D.C. Bar #426840. 

David L. Meyer, 

Deputy Assistant Attorney General, D.C. Bar 

#414420. 

J. Robert Kramer II, 

Director of Operations. 

Maribeth Petrizzi, 

Chief, Litigation II Section, D.C. Bar #435204. 

Robert W. Wilder, 

Acting Assistant Chief, Litigation II Section. 

Kerrie J. Freeborn, 

John F. Greaney, 

Stephen A. Harris, 

Lowell Stern (D.C. Bar #440487), Attorneys, 

U.S. Department of Justice, Antitrust 

Division, Litigation II Section, 1401 H Street, 

N.W., Suite 3000, Washington, D.C. 20530, 

(202) 307–0924. 

Appendix A—Herfindahl-Hirschman Index 

Calculations 

‘‘HHI’’ means the Herfindahl-Hirschman 

Index, a commonly accepted measure of 

market concentration. It is calculated by 

squaring the market share of each firm 

competing in the market and then summing 

the resulting numbers. For example, for a 

market consisting of four firms with shares of 

thirty, thirty, twenty, and twenty percent, the 

BBI is 2600 (30 2 + 30 2 + 20 2 + 20 2 = 2600). 

The HHI takes into account the relative size 

and distribution of the firms in a market and 

approaches zero when a market consists of a 


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large number of firms of relatively equal size. 

The HHI increases both as the number of 

firms in the market decreases and as the 

disparity in size between those firms 

increases. 

Markets in which the HHI is between 1000 

and 1800 points are considered to be 

moderately concentrated and those in which 

the HHI is in excess of 1800 points are 

considered to be highly concentrated. 

Transactions that increase the HHI by more 

than 100 points in highly concentrated 

markets presumptively raise antitrust 

concerns under the Horizontal Merger 

Guidelines issued by the U.S. Department of 

Justice and the Federal Trade Commission. 

See Horizontal Merger Guidelines 1.51. 

United States District Court for the 

District of Columbia 

United States of America, Plaintiff; v. 

Mittal Steel Company N.V., Defendant 

Case No. 

DECK TYPE: Antitrust 

DATE STAMP: 

Final Judgment 

Whereas, plaintiff, United States of 

America, filed its Complaint on August 

1, 2006 and plaintiff and defendant, 

Mittal Steel Company N.V., 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, defendant agrees to be 

bound by the provisions of this Final 

Judgment pending its approval by the 

Court; 

And Whereas, the essence of this 

Final Judgment is the prompt and 

certain divestiture of certain rights or 

assets by the defendant to assure that 

competition is not substantially 

lessened; 

And Whereas, plaintiff requires 

defendant to make certain divestitures 

for the purpose of remedying the loss of 

competition alleged in the Complaint; 

And Whereas, defendant has 

represented to the United States that the 

divestitures required below can and will 

be made and that defendant will later 

raise no claim of hardship or difficulty 

as grounds for asking the Court to 

modify any of the divestiture provisions 

contained below; 

Now Therefore, 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 defendant under Section 7 of the 

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

II. Definitions 

As used in this Final Judgment: 

A. ‘‘Acquirer’’ means the entity or 

entities to whom defendant divests 

either the Dofasco Business or the 

Selected Business. 

B. ‘‘Arcelor’’ means Arcelor, S.A., a 

Luxembourg corporation with its 

headquarters in Luxembourg City, 

Luxembourg, its successors and assigns, 

and its subsidiaries, divisions, groups, 

affiliates, partnerships, joint ventures, 

and their directors, officers, managers, 

agents, and employees. 

C. ‘‘Divested Business’’ means either 

the Dofasco Business or the Sparrows 

Point Business or the Weirton Business, 

whichever is being offered for sale by 

the defendant or by a trustee appointed 

pursuant to Section V of this Final 

Judgment. 

D. ‘‘Dofasco Business’’ means all 

assets, interests, and rights in Dofasco 

Inc. (‘‘Dofasco’’), including any 

additions, improvements, or expansions 

made by Arcelor after Arcelor’s 

acquisition of Dofasco on or about 

February 20, 2006, and includes but is 

not limited to: 

1. All tangible assets that comprise 

Dofasco, including research and 

development activities, all 

manufacturing equipment, tooling and 

fixed assets, personal property, 

inventory, office furniture, materials, 

supplies, on- or off-site warehouses or 

storage facilities and other tangible 

property, and all assets used exclusively 

in connection with the Dofasco 

business; all licenses, permits and 

authorizations issued by any 

governmental organization relating to 

Dofasco; all supply agreements relating 

to Dofasco; all contracts, teaming 

agreements, agreements, leases, 

certifications, commitments, and 

understandings; all customer contracts, 

lists, accounts, and credit records 

relating to Dofasco; and all other records 

relating to Dofasco; 

2. All intangible assets used in the 

development, production, servicing, and 

sale of products by Dofasco, including 

but not limited to all patents, licenses 

and sublicenses, intellectual property, 

copyrights, trademarks, trade names, 

service marks, service names, technical 

information, computer software and 

related documentation, know-how, 

trade secrets, drawings, blueprints, 

designs, design protocols, specifications 

for materials, specifications for parts 

and devices, safety procedures for the 

handling of materials and substances, 

quality assurance and control 

procedures, design tools and simulation 

capability, and all manuals and 

technical information provided to the 

employees, customers, suppliers, agents 

or licensees of Dofasco; all research data 

concerning historic and current research 

and development efforts relating to 

products produced or sold by Dofasco, 

including but not limited to designs of 

experiments, and the results of 

successful and unsuccessful designs and 

experiments, provided, however, that 

Dofasco does not include Dofasco’s 

interest in Sorevco. 

E. ‘‘DoSol Joint Venture’’ means 

DoSol Galva Limited Partnership, the 

hot dip galvanizing facility located in 

Hamilton, Ontario, Canada, that is a 

joint venture between Dofasco and 

Arcelor. 

F. ‘‘Mittal Steel’’ means defendant 

Mittal Steel Company, N.V., a 

Netherlands public limited liability 

company with its headquarters in 

Rotterdam, The Netherlands, its 

successors and assigns, and its 

subsidiaries, divisions, groups, 

affiliates, partnerships, joint ventures, 

and their directors, officers, managers, 

agents, and employees. 

G. ‘‘QCM’’ means Quebec Cartier 

Mining Company, a producer of iron ore 

products, headquartered in Montreal, 

Quebec, Canada. 

H. ‘‘Selected Business’’ means 

whichever of the Sparrows Point 

Business or the Weirton Business is 

selected by the United States in its sole 

discretion to be offered for sale by the 

defendant or by a trustee appointed 

pursuant to Section V of this Final 

Judgment. 

I. ‘‘Sorevco’’ mean Sorevco and 

Company, Limited, the hot dip 

galvanizing operation located in 

Montreal, Quebec, Canada, that is a joint 

venture between Dofasco and Mittal. 

J. ‘‘Sparrows Point Facility’’ means 

the steel making, rolling, and coating 

facility owned by Mittal Steel and 

located in or near Sparrows Point, 

Maryland. 

K. ‘‘Sparrows Point Business’’ means 

all assets, interests, and rights in the 

Sparrows Point Facility, and includes 

but is not limited to: 

1. All tangible assets used in the 

development, production, servicing, and 

sale of all products produced at the 

Sparrows Point Facility, including but 

not limited to all real property; any 

facilities used for research, 

development, and engineering support, 

and any real property associated with 

those facilities; manufacturing and sales 

assets, including all manufacturing 

equipment, tooling and fixed assets, 

capital equipment, vehicles, supplies, 

personal property, inventory, office 


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furniture, fixed assets and fixtures, 

materials, on-or off-site warehouses or 

storage facilities, and other tangible 

property or improvements; all licenses, 

permits and authorizations issued by 

any governmental organization relating 

to the Sparrows Point Business; supply 

agreements; all contracts, teaming 

agreements, agreements, leases, 

certifications, commitments, and 

understandings relating to the Sparrows 

Point Business; all customer contracts, 

lists, accounts, and credit records; and 

all other records maintained by Mittal 

Steel in connection with the operation 

of the Sparrows Point Business; 

provided, however, that with respect to 

any assets covered by Section II(K)(1) 

that relate primarily to Mittal’s nondivested businesses, but also relate in 

part to the Sparrows Point Business, the 

defendant shall have the option, subject 

to the written approval of the United 

States in its sole discretion, to substitute 

equivalent assets or arrangements (a 

substituted asset or arrangement will 

not be deemed equivalent unless it 

provides the Sparrows Point Business 

the same benefits, or enables the 

Sparrows Point Business to perform the 

same function at the same or less cost); 

and further provided, that the Sparrows 

Point Business does not include Mittal 

Steel’s contract to supply hot-rolled 

steel to the The Ford Motor Company, 

which contract is supplied in part by 

the Sparrows Point Facility; 

2. All intangible assets currently used 

exclusively or primarily in the 

development, production, servicing, and 

sale of all products produced at the 

Sparrows Point Facility, including but 

not limited to all patents, licenses and 

sublicenses, intellectual property, 

copyrights, trademarks, trade names, 

service marks, service names (except to 

the extent such trademarks, trade 

names, service marks, or service names 

contain the trademark or name ‘‘Mittal 

Steel’’ or any variation thereof), 

technical information, computer 

software and related documentation, 

know-how, trade secrets, drawings, 

blueprints, designs, design protocols, 

specifications for materials, 

specifications for parts and devices, 

safety procedures for the handling of 

materials and substances, quality 

assurance and control procedures, 

design tools and simulation capability, 

and all manuals and technical 

information provided to the employees, 

customers, suppliers, agents or licensees 

of the Sparrows Point Business; 

3. With respect to any other identified 

intangible assets that are not subject to 

Section II(K)(2) and that prior to the 

filing of the Complaint were used both 

in connection with the Sparrows Point 

Business and in connection with Mittal 

Steel’s non-divested businesses, the 

defendant shall provide to the Acquirer 

a non-exclusive, non-transferable, fullypaid-up license(s) for such intangible 

asset(s) to the extent and for the period 

of time that defendant has rights to such 

intangible assets, provided, however, 

that any such license may be 

transferable to any future purchaser of 

the Sparrows Point Business; and 

4. All research data concerning 

historic and current research and 

development efforts related to the 

Sparrows Point Business, including but 

not limited to designs of experiments, 

and the results of successful and 

unsuccessful designs and experiments. 

To the extent that any such data also 

relates to historic and current research 

and development efforts related to 

businesses other than the Sparrows 

Point Business, providing a nonexclusive copy of such data shall fulfill 

defendant’s obligations under this 

provision. 

L. ‘‘ThyssenKrupp’’ means 

ThyssenKrupp AG, a German 

corporation with its headquarters in 

Dusseldorf, Germany, its successors and 

assigns, and its subsidiaries, divisions, 

groups, affiliates, partnerships, joint 

ventures, and their directors, officers, 

managers, agents, and employees. 

M. ‘‘Tin Mill Products’’ means 

collectively black plate, i.e., light-gauge 

cold-rolled bare steel sheet; electrolytic 

tin plate, i.e., black-plate electrolytically 

coated with tin; and tin free steel, i.e., 

black plate electrolytically coated with 

chromium. 

N. ‘‘Weirton Facility’’ means the steel 

making, rolling, and coating facility 

owned by Mittal Steel and located in or 

near Weirton, West Virginia. 

O. ‘‘Weirton Business’’ means all 

assets, interests, and rights in Weirton 

Facility, and includes but is not limited 

to: 

1. All tangible assets used in the 

development, production, servicing, and 

sale of all products produced at the 

Weirton Facility, including but not 

limited to all real property; any facilities 

used for research, development, and 

engineering support, and any real 

property associated with those facilities; 

manufacturing and sales assets, 

including all manufacturing equipment, 

tooling and fixed assets, capital 

equipment, vehicles, supplies, personal 

property, inventory, office furniture, 

fixed assets and fixtures, materials, onor off-site warehouses or storage 

facilities, and other tangible property or 

improvements, including but not 

limited to all of defendant’s rights and 

interests in the Half Moon tin 

warehouse and processing facility near 

the Weirton Facility; all licenses, 

permits and authorizations issued by 

any governmental organization relating 

to the Weirton Facility; supply 

agreements; all contracts, teaming 

agreements, agreements, leases, 

certifications, commitments, and 

understandings relating to the Weirton 

Facility; all customer contracts, lists, 

accounts, and credit records; and all 

other records maintained by Mittal Steel 

in connection with the operation of the 

Weirton Business; provided, however, 

that with respect to any assets covered 

by Section II(O)(I) that relate primarily 

to Mittal’s non-divested businesses, but 

also relate in part to the Weirton 

Business, the defendant shall have the 

option, subject to the written approval 

of the United States in its sole 

discretion, to substitute equivalent 

assets or arrangements (a substituted 

asset or arrangement will not be deemed 

equivalent unless it provides the 

Weirton Business the same benefits, or 

enables the Weirton Business to perform 

the same function at the same or less 

cost); 

2. All intangible assets currently used 

exclusively or primarily in the 

development, production, servicing, and 

sale of all products produced at the 

Weirton Facility, including but not 

limited to all patents, licenses and 

sublicenses, intellectual property, 

copyrights, trademarks, trade names, 

service marks, service names (except to 

the extent such trademarks, trade 

names, service marks, or service names 

contain the trademark or name ‘‘Mittal 

Steel’’ or any variation thereof), 

technical information, computer 

software and related documentation, 

know-how, trade secrets, drawings, 

blueprints, designs, design protocols, 

specifications for materials, 

specifications for parts and devices, 

safety procedures for the handling of 

materials and substances, quality 

assurance and control procedures, 

design tools and simulation capability, 

and all manuals and technical 

information provided to the employees, 

customers, suppliers, agents or licensees 

of the Weirton Business; 

3. With respect to any other identified 

intangible assets that are not subject to 

Section II(O)(2) and that prior to the 

filing of the Complaint were used both 

in connection with the Weirton 

Business and in connection with Mittal 

Steel’s non-divested businesses, the 

defendant shall provide to the Acquirer 

a non-exclusive, non-transferable, fully 

paid-up license(s) for such intangible 

asset(s) to the extent and for the period 

of the time that defendant has rights to 

such intangible assets, provided, 

however, that any such license may be 


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transferable to any future purchaser of 

the Weirton Business; and 

4. All research data concerning 

historic and current research and 

development efforts related to the 

Weirton Business, including but not 

limited to designs of experiments, and 

the results of successful and 

unsuccessful designs and experiments. 

To the extent that any such data also 

relates to historic and current research 

and development efforts related to 

businesses other than the Weirton 

Business, providing a non-exclusive 

copy of such data shall fulfill 

defendant’s obligations under this 

provision. 

III. Applicability 

A. This Final Judgment applies to 

Mittal Steel, as defined above, and all 

other persons in active concert or 

participation with Mittal Steel who 

receive actual notice of this Final 

Judgment by personal service or 

otherwise. 

B. Defendant shall require, as a 

condition of the sale or other 

disposition of all or substantially all of 

its assets or of lesser business units that 

includes the Divested Business, that the 

purchaser agrees to be bound by the 

provisions of this Final Judgment. 

IV. Divestiture 

A. In the event defendant acquires 

Arcelor, defendant is ordered and 

directed to divest the Dofasco Business 

to ThyssenKrupp within (1) 120 

calendar days after the filing of the 

Complaint in this matter or (2) five (5) 

days after notice of the entry of this 

Final Judgment by the Court, whichever 

is later. The United States, in its sole 

discretion, may agree to one or more 

extensions of this time period, not to 

exceed in total sixty (60) calendar days, 

and shall notify the Court in each such 

circumstance. At its option, defendant 

may elect to sell Dofasco to an 

alternative Acquirer acceptable to the 

United States in the sole discretion of 

the United States. Defendant agrees to 

use its best efforts to divest the Dofasco 

Business as expeditiously as possible. 

B. In the event defendant acquires 

Arcelor but is unable to accomplish the 

divestiture of the Dofasco Business 

within the time period specified in 

Section IV(A), then at the option of the 

United States, defendant shall divest 

either the Sparrows Point Business or 

the Weirton Business. The United States 

shall provide defendant written notice 

of its selection. Defendant is ordered 

and directed, within ninety (90) 

calendar days of the receipt of such 

notice, to divest the Selected Business 

in a manner consistent with this Final 

Judgment to an Acquirer acceptable to 

the United States in its sole discretion. 

The United States, in its sole discretion, 

may agree to one or more extensions of 

this time period, not to exceed in total 

sixty (60) calendar days, and shall notify 

the Court in each such circumstance. 

Defendant agrees to use its best efforts 

to divest the Selected Business as 

expeditiously as possible. Once the 

United States has provided defendant 

with written notice of its selection 

under Section IV(B), the defendant will 

cease to have any obligation under 

Section IV(A) to divest the Dofasco 

Business. 

C. In accomplishing the divestiture 

ordered by the Final Judgment, 

defendant promptly shall make known, 

by usual and customary means, the 

availability of the Divested Business. 

Defendant shall inform any person 

making inquiry regarding a possible 

purchase of the Divested Business that 

it will be divested pursuant to this Final 

Judgment and provide that person with 

a copy of this Final Judgment. 

Defendant shall offer to furnish to all 

prospective Acquirers, subject to 

customary confidentiality assurances, 

all information and documents relating 

to the Divested Business that 

customarily are provided in a due 

diligence process except such 

information or documents subject to the 

attorney-client or work-product 

privilege. Defendant shall make 

available such information to the United 

States at the same time that such 

information is made available to any 

other person. 

D. Defendant shall provide the 

Acquirer and the United States 

information relating to personnel 

involved in the research, development, 

production, operation, and sale of the 

products of the Divested Business to 

enable the Acquirer to make offers of 

employment. Defendant will not 

interfere with any negotiations by the 

Acquirer to employ any employee of the 

Divested Business whose primary 

responsibility is the production, 

operation, development, or sale of the 

products of the Divested Business. 

E. Defendant shall permit prospective 

Acquirers of the Divested Business to 

have reasonable access to personnel and 

to make inspections of the physical 

facilities of the Divested Business; 

access to any and all environmental, 

zoning, and other permit documents 

and information; and access to any and 

all financial, operational, and other 

documents and information customarily 

provided as part of a due diligence 

process. 

F. Defendant shall warrant to the 

Acquirer of the Divested Business that 

each asset of the Divested Business is in 

a condition and state of repair equal to 

the condition and state of repair as of, 

(1) in the case that the Selected Business 

is divested, the date the defendant 

publicly announced its intention to 

acquire Arcelor, i.e., January 27, 2006, 

or (2) in the case that the Dofasco 

Business is divested, the date of the 

filing of the Complaint in this matter. 

G. Defendant shall not take any action 

that will impede in any way the 

permitting, operation, or divestiture of 

the Divested Business. 

H. The defendant will not undertake, 

directly or indirectly, any challenges to 

the environmental, zoning, or other 

permits relating to the operation of the 

Divested Business. If the Selected 

Business is divested, the defendant shall 

warrant to the Acquirer of the Selected 

Business that there are no material 

defects in the environmental, zoning, or 

other permits pertaining to the 

operation of the Selected Business as 

operated by the defendant. 

I. Nothing in this Final Judgment shall 

be construed to require the Acquirer as 

a condition of any license granted by 

defendant pursuant to Sections II(K)(3) 

or II(O)(3) to extend to defendant the 

right to use the Acquirer’s 

improvements to processes used in 

connection with the Selected Business. 

J. Unless the United States otherwise 

consents in writing, the divestiture 

pursuant to Section IV, or by trustee 

appointed pursuant to Section V, of this 

Final Judgment, shall include the entire 

business and assets of the Divested 

Business, and shall be accomplished in 

such a way as to satisfy the United 

States, in its sole discretion, that the 

Divested Business can and will be used 

by the Acquirer as a viable, ongoing 

business engaged in producing Tin Mill 

Products. The divestiture, whether 

pursuant to Section IV or Section V of 

this Final Judgment, 

1. Shall be made to an Acquirer that, 

in the United States’s sole judgment, has 

the intent and capability (including the 

necessary managerial, operational, 

technical and financial capability) to 

compete effectively in the production 

and sale of Tin Mill Products; and 

2. Shall be accomplished so as to 

satisfy the United States, in its sole 

discretion, that none of the terms of any 

agreement between an Acquirer and 

defendant gives defendant the ability 

unreasonably to raise the Acquirer’s 

costs, to lower the Acquirer’s efficiency, 

or otherwise interfere in the ability of 

the Acquirer to compete effectively in 

the production and sale of Tin Mill 

Products. 


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V. Appointment of Trustee To Effect 

Divestiture 

A. If the defendant has not divested 

the Selected Business pursuant to 

Section IV(B) of this Final Judgment 

within the time period specified in that 

Section, defendant shall notify the 

United States of that fact in writing. 

Upon application of the United States, 

the Court shall appoint a trustee 

selected by the United States and 

approved by the Court to effect the 

divestiture of the Selected Business 

pursuant to Section IV(B). 

B. After the appointment of a trustee 

becomes effective, only the trustee shall 

have the right to sell the Selected 

Business. The trustee shall have the 

power and authority to accomplish the 

divestiture to an Acquirer acceptable to 

the United States at such price and on 

such terms as are then obtainable upon 

reasonable effort by the trustee, subject 

to the provisions of Sections IV, V, and 

VI of this Final Judgment, and shall 

have such other powers as this Court 

deems appropriate. Subject to Section 

V(D) of this Final Judgment, the trustee 

may hire at the cost and expense of 

defendant any investment bankers, 

attorneys, or other agents, who shall be 

solely accountable to the trustee, 

reasonably necessary in the trustee’s 

judgment to assist in the divestiture. 

C. Defendant shall not object to a sale 

by the trustee on any ground other than 

the trustee’s malfeasance. Any such 

objection by defendant must be 

conveyed in writing to the United States 

and the trustee within ten (10) calendar 

days after the trustee has provided the 

notice required under Section VI. 

D. The trustee shall serve at the cost 

and expense of defendant, on such 

terms and conditions as plaintiff 

approves, and shall account for all 

monies derived from the sale of the 

Selected Business all costs and expenses 

so incurred. After approval by the Court 

of the trustee’s accounting, including 

fees for its services and those of any 

professionals and agents retained by the 

trustee, all remaining money shall be 

paid to defendant and the trust shall 

then be terminated. The compensation 

of the trustee and any professionals and 

agents retained by the trustee shall be 

reasonable in light of the value of the 

Selected Business and based on a fee 

arrangement providing the trustee with 

an incentive based on the price and 

terms of the divestiture and the speed 

with which it is accomplished, but 

timeliness is paramount. 

E. Defendant shall use its best efforts 

to assist the trustee in accomplishing 

the required divestiture. The trustee and 

any consultants, accountants, attorneys, 

and other persons retained by the 

trustee shall have full and complete 

access to the personnel, books, records, 

and facilities of the Selected Business, 

and defendant shall develop financial 

and other information relevant to such 

business as the trustee may reasonably 

request, subject to customary 

confidentiality protection for trade 

secret or other confidential research, 

development, or commercial 

information. Defendant shall take no 

action to interfere with or to impede the 

trustee’s accomplishment of the 

divestiture. 

F. After its appointment, the trustee 

shall file monthly reports with the 

United States and the Court setting forth 

the trustee’s efforts to accomplish the 

divestiture ordered under this Final 

Judgment. To the extent such reports 

contain information that the trustee 

deems confidential, such reports shall 

not be filed in the public docket of the 

Court. Such reports shall include the 

name, address, and telephone number of 

each person who, during the preceding 

month, made an offer to acquire, 

expressed an interest in acquiring, 

entered into negotiations to acquire, or 

was contacted or made an inquiry about 

acquiring the Selected Business, and 

shall describe in detail each contact 

with any such person. The trustee shall 

maintain full records of all efforts made 

to divest the Selected Business. 

G. If the trustee has not accomplished 

the divestiture of the Selected Business 

within six months after its appointment, 

the trustee shall promptly file with the 

Court a report setting forth (1) the 

trustee’s efforts to accomplish the 

required divestiture; (2) the reasons, in 

the trustee’s judgment, why the required 

divestiture has not been accomplished; 

and (3) the trustee’s recommendations. 

To the extent such report contains 

information that the trustee deems 

confidential, such report shall not be 

filed in the public docket of the Court. 

The trustee shall at the same time 

furnish such report to the plaintiff, who 

shall have the right to make additional 

recommendations consistent with the 

purpose of the trust. The Court 

thereafter shall enter such orders as it 

shall deem appropriate to carry out the 

purpose of the Final Judgment, which 

may, if necessary, include extending the 

trust and the term of the trustee’s 

appointment by a period requested by 

the United States. 

VI. Notice of Proposed Divestiture 

A. Within two (2) business days 

following execution of a definitive 

divestiture agreement, defendant or the 

trustee, whichever is then responsible 

for effecting the divestiture required 

herein, shall notify the United States of 

any proposed divestiture required by 

Section IV or V of this Final Judgment. 

If the trustee is responsible, it shall 

similarly notify defendant. The notice 

shall set forth the details of the 

proposed divestiture and list the name, 

address, and telephone number of each 

person not previously identified who 

offered or expressed an interest in or 

desire to acquire any ownership interest 

in the Selected Business. 

B. Within fifteen (15) calendar days of 

receipt by the United States of such 

notice, the United States may request 

from defendant, the proposed Acquirer, 

any other third party, or the trustee if 

applicable additional information 

concerning the proposed divestiture, the 

proposed Acquirer, and any other 

potential Acquirer. Defendant and the 

trustee shall furnish any additional 

information requested within fifteen 

(15) calendar days of the receipt of the 

request, unless the parties shall 

otherwise agree. 

C. Within (a) thirty (30) calendar days 

after receipt of the notice or (b) twenty 

(20) calendar days after the United 

States has been provided the additional 

information requested from defendant, 

the proposed Acquirer, any third party, 

or the trustee, whichever is later, the 

United States shall provide written 

notice to defendant and the trustee, if 

there is one, stating whether or not it 

objects to the proposed divestiture. If 

the United States provides written 

notice that it does not object, the 

divestiture may be consummated, 

subject only to defendant’s limited right 

to object to the sale under Section V(C) 

of this Final Judgment. Absent written 

notice that the United States does not 

object to the proposed Acquirer or upon 

objection by the United States, a 

divestiture proposed under Section IV 

or Section V shall not be consummated. 

Upon objection by defendant under 

Section V(C), a divestiture proposed 

under Section V shall not be 

consummated unless approved by the 

Court. 

VII. Financing 

Defendant shall not finance all or any 

part of any purchase made pursuant to 

Section IV or V of this Final Judgment. 

VIII. Hold Separate 

Until the divestiture required by this 

Final Judgment has been accomplished 

defendant shall take all steps necessary 

to comply with the Hold Separate 

Stipulation and Order entered by this 

Court. Defendant shall take no action 

that would jeopardize the divestiture 

order by this Court. 


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IX. Affidavits 

A. Within twenty (20) calendar days 

of the filing of the Complaint in this 

matter, and every thirty (30) calendar 

days thereafter until the divestiture has 

been completed under Section IV or V, 

defendant shall deliver to the United 

States an affidavit as to the fact and 

manner of its compliance with Section 

IV or V of this Final Judgement. Each 

such affidavit shall include the name, 

address, and telephone number of each 

person who, during the preceding thirty 

days, made an offer to acquire, 

expressed an interest in acquiring, 

entered into negotiations to acquire, or 

was contacted or made an inquiry about 

acquiring, any interest in the Divested 

Business, and shall describe in detail 

each contact with any such person 

during that period. Each such affidavit 

shall also include a description of the 

efforts defendant has taken to solicit 

buyers for the Divested Business, and to 

provide required information to any 

prospective Acquirer, including the 

limitations, if any, on such information. 

Assuming the information set forth in 

the affidavit is true and complete, any 

objection by the United States to 

information provided by defendant, 

including limitations on the 

information, shall be made within 

fourteen (14) calendar days of receipt of 

such affidavit. 

B. Within twenty (20) calendar days 

of the filing of the Complaint in this 

matter, defendant shall deliver to the 

United States an affidavit that describes 

in reasonable detail all actions 

defendant has taken and all steps 

defendant has implemented on an 

ongoing basis to comply with Section 

VIII of this Final Judgment. Defendant 

shall deliver to the United States an 

affidavit describing any changes to the 

efforts and actions outlined in 

defendant’s earlier affidavits filed 

pursuant to this section within fifteen 

(15) calendar days after the change is 

implemented. 

C. Defendant shall keep all records of 

all efforts made to preserve and divest 

the Divested Business until one year 

after a divestiture has been completed. 

X. Compliance Inspection 

A. For purposes of determining or 

securing compliance with this Final 

Judgment, or of determining whether 

the Final Judgment should be modified 

or vacated, and subject to any legally 

recognized privilege, from time to time 

duly authorized representatives of the 

United States Department of Justice, 

including consultants and other persons 

retained by the United States, shall, 

upon written request of a duly 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, and on 

reasonable notice to defendant, be 

permitted: 

1. Access during defendant’s office 

hours to inspect and copy, or at 

plaintiff’s option, to require defendant 

to provide copies of, all books, ledgers, 

accounts, records and documents in the 

possession, custody, or control of 

defendant, relating to any matters 

contained in this Final Judgment; and 

2. To interview, either informally or 

on the record, defendant’s 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 

defendant. 

B. Upon the written request of a duly 

authorized representative of the 

Assistant Attorney General in charge of 

the Antitrust Division, defendant shall 

submit written reports, under oath if 

requested, relating to any of the matters 

contained in this Final Judgment as may 

be requested. 

C. No information or documents 

obtained by the means provided in this 

section shall be divulged by the United 

States to any person other than an 

authorized representative of the 

executive branch of the United States, 

except in the course of legal proceedings 

to which the United States is a party 

(including grand jury proceedings), or 

for the purpose of securing compliance 

with this Final Judgment, or as 

otherwise required by law. 

D. If, at the time information or 

documents are furnished by defendant 

to the United States, defendant 

represents and identifies in writing the 

material in any such information or 

documents to which a claim of 

protection may be asserted under Rule 

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

Procedure, and defendant mark each 

pertinent page of such material, 

‘‘Subject to claim of protection under 

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

Civil Procedure,’’ then the United States 

shall give defendant ten (10) calendar 

days notice prior to divulging such 

material in any legal proceeding (other 

than a grand jury proceeding). 

XI. No Reacquisition 

Defendant may not reacquire any part 

of any assets divested during the term 

of this Final Judgment, provided, 

however, that nothing in this decree 

shall prevent defendant from (1) 

reacquiring any of the assets of QCM, 

subject to the written consent of the 

United States in its sole discretion; or 

(2) increasing its interest in the DoSol 

Joint Venture to 50 percent. 

XII. Retention of Jurisdiction 

This Court retains jurisdiction to 

enable any party to this Final Judgment 

to apply to this Court at any time for 

further orders and directions as may be 

necessary or appropriate to carry out or 

construe this Final Judgment, to modify 

any of its provisions, to enforce 

compliance, and to punish violations of 

its provisions. 

XIII. Expiration of Final Judgment 

Unless this Court grants an extension, 

this Final Judgment shall expire ten 

years from the date of its entry. 

XIV. Public Interest Determination 

Entry of this Final Judgment is in the 

public interest. 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’ responses to 

comments. Based upon the record 

before the Court, which includes the 

Competitive Impact Statement and any 

comments and response to comments 

filed with the Court, entry of this Final 

Judgment is in the public interest. 

Date: llllllllllllllllll

Court approval subject to procedures of the 

Antitrust Procedures and Penalties Act, 15 

U.S.C. 16. 

lllllllllllllllllllll

United States District Judge 

United States District Court for the 

District of Columbia 

United States of America, Plaintiff, v. 

Mittal Steel Company N.V., Defendant 

Case No. 

JUDGE: 

DECK TYPE: Antitrust 

DATE STAMP: 

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 

The United States filed a civil 

antitrust Complaint on August 1, 2006, 

seeking to obtain equitable and other 

relief against defendant Mittal Steel 

Company N.V. (‘‘Mittal Steel’’) to 

prevent its proposed acquisition of 


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Arcelor S.A. (‘‘Arcelor’’). Mittal Steel 

and Arcelor, including its Canadian 

subsidiary Dofasco Inc. (‘‘Dofasco’’ or 

the ‘‘Dofasco Business’’), are two of only 

a limited number of suppliers to the 

portion of the United States east of the 

Rocky Mountains (the ‘‘Eastern United 

States’’) of finely rolled tin or chrome 

coated steel sheets (‘‘Tin Mill 

Products’’). Tin Mill Products are used 

in manufacturing steel cans for 

packaging a wide range of food 

products, such as soup, fruits, and 

vegetables, and non-food products, such 

as paints, aerosols, and shaving cream. 

The Complaint alleges that the likely 

effect of this acquisition would be to 

lessen competition substantially in the 

development, manufacture and sale of 

Tin Mill Products in the Eastern United 

States, in violation of Section 7 of the 

Clayton Act. This loss of competition 

would likely result in higher prices, 

lower quality, less innovation, and less 

favorable delivery terms to customers in 

the Eastern United States Tin Mill 

Products market. 

At the same time the Complaint was 

filed, the United States filed a Hold 

Separate Stipulation and Order and a 

proposed Final Judgment. These are 

designed to remedy the anticompetitive 

effects of the acquisition while 

permitting Mittal Steel to complete its 

acquisition of Arcelor. Under the 

proposed Final Judgment, which is 

explained more fully below, the 

defendants are required to divest certain 

assets including Arcelor’s Dofasco 

subsidiary to ThyssenKrupp AG 

(‘‘ThyssenKrupp’’), a German 

corporation with its headquarters in 

Dusseldorf, Germany, or, if defendant 

chooses, to another acquirer of the 

divested business (‘‘Acquirer’’) 

acceptable to the United States in its 

sole discretion. If the defendant is 

unable to sell the Dofasco Business to 

ThyssenKrupp or an alternative 

acceptable buyer, then the defendant is 

required to divest, at the United States’s 

option, either Mittal Steel’s Sparrows 

Point, Maryland, facility (‘‘Sparrows 

Point Business’’) or Mittal Steel’s 

Weirton, West Virginia, facility 

(‘‘Weirton Business’’) to an Acquirer 

acceptable to the United States in its 

sole discretion (with the business so 

selected referred to as the ‘‘Selected 

Business’’). The divestiture of either the 

Dofasco Business or the Selected 

Business is designed to enable the 

Acquirer to become a viable and active 

competitor in the Eastern United States 

Tin Mill Products market. 

The United States and defendant have 

stipulated that the proposed Final 

Judgment may be entered after 

compliance with the APPA. Entry of the 

proposed Final Judgment would 

terminate this action, except that the 

Court would retain jurisdiction to 

construe, modify, or enforce the 

provisions of the proposed Final 

Judgment and to punish violations 

thereof. 

II. Description of the Events Giving Rise 

to the Alleged Violation 

A. The Defendant and the Proposed 

Transaction 

Mittal Steel, a Netherlands 

corporation, has its corporate 

headquarters and principal place of 

business in Rotterdam, The 

Netherlands, and has operations in 

sixteen countries, located on four 

continents. As one of the largest steel 

producers in the world, Mittal Steel is 

primarily engaged in making a variety of 

steel products for all the major steel 

consuming sectors, including 

automotive, appliance, machinery, and 

construction. Among its many steel 

product lines is Tin Mill Products. In 

2005, Mittal Steel reported total 

worldwide revenues that exceeded $28 

billion and total annual steel production 

that exceeded 55 million tons. Mittal 

Steel maintains seventeen production 

facilities within the United States, and 

produces Tin Mill Products in Sparrows 

Point and Weirton. Mittal Steel operates 

in the United States through its whollyowned subsidiary Mittal Steel USA, 

located in Chicago, Illinois, which 

markets and sells in the United States 

Tin Mill Products and other products 

manufactured by Mittal Steel. Tin Mill 

Products manufactured at Mittal Steel’s 

U.S. tin mills are shipped primarily to 

customers in the United States. In 2005, 

Mittal Steel sold over 800,000 tons of 

Tin Mill Products in the Eastern United 

States. 

Arcelor, a Luxembourg corporation, 

has its corporate headquarters and 

principal place of business in the City 

of Luxembourg. Like Mittal Steel, 

Arcelor is one of the world’s largest 

steel producers and makes a variety of 

steel products for the automotive, 

appliance, packaging, and other 

industries. In 2005, Arcelor reported 

total worldwide revenues of 

approximately $41.5 billion and steel 

production of 46 million tons. In 

February 2006, Arcelor acquired 

Dofasco, a wholly-owned Canadian 

subsidiary with its principal place of 

business in Hamilton, Ontario, Canada. 

In 2005, Dofasco shipped 4.8 million 

tons and had $3.9 billion in revenues. 

Among Arcelor’s many steel product 

lines is Tin Mill Products, which it 

makes at mills in Europe and Brazil and 

at Dofasco’s Hamilton mill. In 2005, 

Arcelor, which shipped Tin Mill 

Products to the Eastern United States 

primarily from its European facilities, 

and Dofasco, which shipped Tin Mill 

Products to the Eastern United States 

from its Canadian facility, sold a 

combined 170,615 tons of Tin Mill 

Products in the Eastern United States. 

On January 27, 2006, Mittal Steel 

announced its intention to launch a 

hostile tender offer to acquire Arcelor 

for approximately $23 billion in cash 

and securities. Mittal Steel 

simultaneously announced an 

agreement to sell Dofasco for 

approximately $5 billion to 

ThyssenKrupp if Mittal Steel acquired 

Arcelor. Arcelor initially resisted the 

hostile takeover. One of the steps 

Arcelor’s Board of Directors took to 

resist the takeover was to transfer legal 

title to the shares of Dofasco to an 

independent Dutch foundation known 

as a ‘‘stichting.’’

Mittal Steel subsequently increased 

its tender offer to approximately $33 

billion in cash and securities and 

formally launched its tender offer on 

May 19, 2006. After Mittal Steel agreed 

to improve the financial, corporate 

governance, and other terms of its offer 

for Arcelor, the Arcelor Board agreed on 

June 25, 2006 to recommend Mittal 

Steel’s offer to Arcelor’s shareholders. 

The acceptance period for Mittal’s 

initial tender offer, during which 92.6 

percent of Arcelor’s shares were 

tendered, closed on July 13, 2006. Mittal 

Steel can take ownership of the shares 

beginning on August 1, 2006. 

Mittal Steel’s acquisition of Arcelor 

would, among other things, combine the 

operations of two significant providers 

of Tin Mill Products in the Eastern 

United States. The United States alleges 

in its Complaint that this proposed 

transaction would lessen competition 

substantially in the market for Tin Mill 

Products in the Eastern United States, in 

violation of Section 7 of the Clayton 

Act. 

B. The Competitive Effects of the 

Transaction on the Tin Mill Products 

Market 

1. Relevant Product Market: The 

Development, Manufacture and Sale of 

Tin Mill Products 

The Complaint alleges that the 

development, manufacture and sale of 

Tin Mill Products is a relevant product 

market within the meaning of Section 7 

of the Clayton Act. Tin Mill Products 

are finely rolled steel sheets, usually 

coated with a thin protective layer of tin 

or chrome. Tin Mill Products are 

manufactured using a sequence of 

processing steps in which steel is rolled 


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into successively thinner sheets, then 

hardened, and finally coated with either 

tin or chrome. Tin Mill products are 

comprised of three types of steel: black 

plate, electrolytic tin plate (‘‘ETP’’), and 

tin free steel (‘‘TFS’’). Black plate is a 

light-gauge cold-rolled bare steel sheet 

that serves as the substrate for 

production of both ETP and TFS and 

can be used bare for some applications 

such as pails or larger containers. Black 

plate is coated with tin to produce ETP 

and with chrome to produce TFS. ETP 

and TFS are both used in packaging, 

although each provides different 

advantages and disadvantages 

(including, inter alia, organic coating 

acceptance, strength, surface finish, and 

formability) that are considered by 

purchasers in making their purchase 

decisions. The majority of Tin Mill 

Products are used to produce sanitary 

cans, often referred to as food cans. 

Other uses include aerosol cans, general 

line cans, pails, larger containers, metal 

buildings, and oil and fuel filter sheets. 

For most Tin Mill Products 

purchasers, including downstream food 

can customers, there are no close 

substitutes for Tin Mill Products. 

Packaging alternatives, such as plastic 

containers, are generally not viewed by 

can customers as replacements for 

products normally packaged in cans 

because of cost differences and the 

performance advantages associated with 

cans. Some of the advantages of steel 

cans compared to alternative packaging 

include their longer shelf life and 

greater durability, familiarity, and 

security. Alternative packaging 

generally costs at least as much as a 

steel can and sometimes costs as much 

as eight times as much as a can, and 

significant additional capital 

investments are necessary to incorporate 

alternative packaging materials into a 

customer’s packaging process. 

The Complaint alleges that a small but 

significant increase in the price of Tin 

Mill Products would not cause can 

manufacturers or their downstream 

customers to substitute non-Tin Mill 

Products containers or otherwise to 

reduce their purchases of Tin Mill 

Products in sufficient quantities so as to 

make such a price increase unprofitable. 

The use of alternative packaging 

containers is driven primarily by capital 

equipment investment considerations 

and by marketing factors such as 

consumer convenience, rather than by 

small but significant changes in the 

prices of Tin Mill Products. For 

example, can customers often use 

alternative packaging in order to extend 

an existing product line, such as using 

alternative materials to package soup in 

portable microwavable containers, 

while continuing to package the bulk of 

their soup products in steel cans. 

Accordingly, the Complaint alleges that 

the development, manufacture, and sale 

of Tin Mill Products is a line of 

commerce and a relevant product 

market within the meaning of Section 7 

of the Clayton Act. 

2. Relevant Geographic Market: Eastern 

United States 

The Complaint also alleges that the 

Eastern United States is a geographically 

distinct market for the sale of Tin Mill 

Products. The only Tin Mill Products 

manufacturer in the United States west 

of the Rocky Mountains (the ‘‘Western 

United States’’) is located in California, 

and it does not have substantial sales in 

the Eastern United States due to its 

distance from can manufacturers in that 

part of the country, which tend to be 

located in proximity to agricultural 

regions. The California Tin Mill 

Products manufacturer, which is half 

owned by one of the two largest Tin 

Mill Products producers in the Eastern 

United States, accounts for more than 84 

percent of the Tin Mill Products sold in 

the Western United States but ships 

only small quantities to the Eastern 

United States. Similarly, Tin Mill 

Products producers in the Eastern 

United States generally do not sell 

significant quantities in the Western 

United States because their freight costs 

are higher than those of the single 

manufacturer located in the Western 

United States. 

Customers are reluctant to rely on 

offshore suppliers of Tin Mill Products 

for their general production 

requirements. More than 89 percent of 

Tin Mill Products sold in the Eastern 

United States are manufactured by firms 

located either in the Eastern United 

States or eastern Canada. Among the 

factors that tend to limit import 

penetration are the longer lead times 

required for offshore orders, higher 

shipping costs, the inability of some 

importers to provide the full range of 

product specifications required by some 

customers, anti-dumping duties 

currently in force against several 

Japanese producers, and voluntary selfrestraint by importers who are fearful of 

prompting additional scrutiny of and 

tariff protection against imports. 

Thus, a small but significant increase 

in the price of Tin Mill Products would 

not cause Tin Mill Products customers 

in the Eastern United States to 

substitute purchases from outside of the 

Eastern United States in sufficient 

quantities so as to make such a price 

increase unprofitable. Accordingly, the 

Eastern United States is a relevant 

geographic market in which to assess 

the competitive effects of Mittal Steel’s 

proposed acquisition of Arcelor on sales 

of Tin Mill Products. 

3. Anticompetitive Effects of the 

Acquisition 

The complaint alleges that, in this 

highly concentrated market for Tin Mill 

Products, a combination of Mittal Steel 

and Arcelor likely would: (i) 

Substantially lessen competition 

generally in the development, 

manufacture and sale of Tin Mill 

Products in the Eastern United States; 

(ii) eliminate actual and potential 

competition between Mittal Steel and 

Arcelor in the development, 

manufacture and sale of Tin Mill 

Products; and (iii) increase the prices for 

Tin Mill Products, lessen the quality of 

Tin Mill Products, lessen the innovation 

relating to Tin Mill Products, and 

adversely affect the delivery terms 

currently offered to the customers in the 

Tin Mill Products market. 

The market for Tin Mill products in 

the Eastern United States is highly 

concentrated and is dominated by two 

firms, Mittal Steel, an integrated 

steelmaker which accounted for 31 

percent of the tons sold in 2005, and 

another integrated steelmaker, which 

accounted for more than 44 percent of 

the tons sold in 2005. Luxembourgbased Arcelor is a significant 

competitor, which accounted for about 

two percent of tons sold in the Eastern 

United States in 2005. Dofasco, which 

Arcelor acquired in February 2006, 

accounts for about four percent of the 

tons sold in 2005 in the Eastern United 

States. Were Mittal Steel to acquire 

Arcelor, the largest two remaining firms 

would account for more than 81 percent 

of Tin Mill Products sales in the Eastern 

United States. In 2005, Mittal Steel and 

one other firm accounted for more than 

2.1 million tons of such sales. 

The acquisition of Arcelor by Mittal 

would thus substantially increase the 

concentration in the Eastern United 

States Tin Mill Products market. Using 

a measure of market concentration 

called the Herfindahl-Hirschman Index 

(‘‘HHI’’) (defined and explained in 

Appendix A), the proposed transaction 

will increase the HHI in the market for 

Tin Mill Products in the Eastern United 

States by approximately 412 points to a 

post-acquisition level of approximately 

3,522, well in excess of levels that raise 

significant antitrust concerns. 

Mittal Steel’s elimination of Arcelor 

as an independent competitor in the 

manufacture and sale of Tin Mill 

Products within the Eastern United 

States is likely to facilitate 

anticompetitive coordination among the 

two major Tin Mill Products 


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1Under the terms of the Hold Separate 

Stipulation and Order, Mittal Steel must maintain 

and preserve the Dofasco Business, the Sparrows 

Point Business, and the Weirton Business as 

ongoing, economically viable competitive 

businesses from the date of entry of the Hold 

Separate Stipulation and Order until the divestiture 

required by the proposed Final Judgment is 

accomplished. In addition, the Hold Separate 

Stipulation and Order requires that Mittal Steel 

ensure that Dofasco operates as an independent, 

economically viable, and ongoing competitive 

business concern, held separate and apart from 

Mittal Steel’s other operations, and that it will 

remain independent and uninfluenced by Mittal 

Steel while the divestiture of Dofasco is pending or 

until the United States selects either the Sparrows 

Point Business or the Weirton Business for 

divestiture. 

manufacturers by making such 

coordination more profitable and harder 

to defeat. If The two largest Tin Mill 

Products firms in the Eastern United 

States were to seek to raise prices or 

reduce output today, purchasers of Tin 

Mill Products could purchase Tin Mill 

Products from Arcelor and its subsidiary 

Dofasco. Arcelor has substantial excess 

and divertible capacity in Europe, and 

Arcelor’s Dofasco subsidiary has 

significant divertible capacity in 

Canada. Were Arcelor and Dofasco no 

longer available as independent 

suppliers, the remaining domestic and 

foreign fringe producers would likely 

not have sufficient capacity and/or 

incentives to increase sales in the 

Eastern United States enough to defeat 

an anti competitive price increase or 

output reduction by the two largest 

firms. In particular, the only other 

incumbent producer located in the 

Eastern United States lacks the ability to 

manufacture cold-rolled substrate, and 

its ability to obtain the additional 

substrate needed to increase its output 

is uncertain. 

De novo entry into the development, 

manufacture and sale of Tin Mill 

Products is difficult, time-consuming, 

and costly, and such entry would not be 

timely, likely, or sufficient to defeat 

coordination by the two largest Tin Mill 

Products firms in the Eastern United 

States post-merger. To produce Tin Mill 

Products, a firm needs a reliable source 

of cold-rolled substrate and a Tin Mill 

Products finishing facility. Entry by a 

firm that lacks the ability to 

manufacture cold-rolled substrate 

would be extremely difficult. A facility 

to finish cold-rolled substrate into Tin 

Mill Products would likely cost in the 

range of $60 to $100 million and take 

approximately two years to design and 

build. The cost of entry is largely 

‘‘sunk,’’ i.e., it cannot be recovered or 

converted to other uses, raising the risk 

to entry, and there is a very high risk 

that a new entrant may not receive any 

profits from its entry. 

Significant new foreign entry or 

expansion of shipments to the Eastern 

United States by existing foreign 

producers is unlikely due to longer 

delivery lead times occasioned by 

oceangoing transportation, additional 

shipping costs, trade barriers, the 

possibility of future import restrictions, 

and the reluctance of foreign Tin Mill 

Products manufacturers to abandon 

existing markets elsewhere in order to 

enter the Eastern United States market. 

Overseas shipping increases the time 

between order and delivery by up to 

four months, which is unacceptable for 

many customers because their demand 

requirements fluctuate with hard-topredict fruit and vegetable harvests. 

Capacity constraints also limit the 

ability of certain foreign producers from 

expanding their sales into the Eastern 

United States. Therefore, entry or 

expansion by any other firm into the 

Eastern United States Tin Mill Products 

market would not be timely, likely, or 

sufficient to deter post-acquisition 

coordination. 

III. Explanation of the Proposed Final 

Judgment 

The proposed Final Judgment will 

preserve competition in the market for 

Tin Mill Products in the Eastern United 

States by requiring the divestiture of one 

of the three North American tin mills 

that Mittal Steel will own following its 

acquisition of Arcelor: (1) The Dofasco 

mill, currently owned by Arcelor; (2) 

Mittal’s Sparrows Point facility; or (3) 

Mittal’s Weirton facility. The proposed 

Final Judgment provides for the 

divestiture of the entire steel mill and 

not simply the finishing lines for Tin 

Mill Products, and in the case of 

Dofasco requires divesting the entirety 

of Dofasco’s steel business. The 

proposed Final Judgment sets forth a 

procedure under which Mittal Steel is 

first required to use its best efforts to 

sell Dofasco to ThyssenKrupp or an 

alternative purchaser approved by the 

United States. If Mittal Steel is unable 

to sell Dofasco because it proves 

impossible to dissolve the stichting 

created by Arcelor to hold legal title to 

its Dofasco shares, then the Department 

of Justice can select either the Sparrows 

Point or Weirton facilities for 

divestiture. 

The required divestiture of Dofasco 

will remedy the anticompetitive effects 

of the acquisition alleged in the 

Complaint, and in the event such a 

divestiture is not possible, the alternate 

divestiture of either Sparrows Point or 

Weirton (as selected by the United 

States) would likewise be sufficient to 

remedy those effects. The divestiture of 

the Dofasco Business or a Selected 

Business would preserve an 

independent competitor with sufficient 

Tin Mill Products capacity to replace 

Arcelor/Dofasco as an impediment to 

profitable and successful coordination 

post-merger. In either case, the 

preserved competitor would have 

modern and efficient facilities located 

close enough to customers in the 

Eastern United States to compete 

effectively. 

The proposed Final Judgment 

provides that for any divestiture to be 

approved, it must be demonstrated to 

the satisfaction of the United States, in 

its sole discretion, that the Divested 

Business can and will be used by the 

Acquirer as a viable ongoing business 

that will remedy the competitive harm 

alleged in the Complaint. The 

divestiture must be made to an Acquirer 

that in the United States’s judgment has 

the intent and capability (including the 

necessary managerial, operational, 

technical, and financial capability) to 

compete effectively in the development, 

production and sale of Tin Mill 

Products; the divestiture also must be 

accomplished in a manner that satisfies 

the United States, in its sole discretion, 

that none of the terms of any agreement 

between an Acquirer and the defendant 

gives the defendant the ability 

unreasonably to raise the Acquirer’s 

costs, reduce the Acquirer’s efficiency, 

or otherwise interfere in the ability of 

the Acquirer to compete effectively in 

the development, production and sale of 

Tin Mill Products. Mittal Steel must 

take all reasonable steps necessary to 

accomplish the divestiture quickly and 

shall cooperate with prospective 

purchasers. 

The proposed Final Judgment requires 

Mittal Steel, within one hundred and 

twenty (120) days after the filing of the 

Complaint, or five (5) days after notice 

of the entry of the Final Judgment by the 

Court, whichever is later, to divest the 

Dofasco Business to ThyssenKrupp. The 

United States, in its sole discretion, may 

agree to one or more extensions of this 

time period, not to exceed in total sixty 

(60) calendar days, and shall notify the 

Court in each such circumstance. At its 

option, defendant may elect to sell the 

Dofasco Business to an alternative 

Acquirer acceptable to the United States 

in the sole discretion of the United 

States. Mittal Steel agrees to use its best 

efforts to divest expeditiously the 

Dofasco Business.1

In the event Mittal Steel is unable by 

virtue of the stichting to accomplish the 

divestiture of the Dofasco Business 

within the period prescribed by the 

proposed Final Judgment, then 

defendant shall divest, at the option of 

the United States, either the Sparrows 


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2 In 2004, Congress amended the APPA to ensure 

that courts take into account the above-quoted list 

of relevant factors when making a public interest 

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

15 U.S.C. 16(e)(l) (2006) (substituting ‘‘shall’’ for 

‘‘may’’ in directing relevant factors for court to 

consider and amending list of factors to focus on 

competitive considerations and to address 

potentially ambiguous judgment terms). On the 

points discussed herein, the 2004 amendments did 

not alter the substance of the Tunney Act, and the 

pre-2004 precedents cited below remain applicable. 

Point Business or the Weirton Business. 

In the event that defendant does not 

accomplish the divestiture of the 

Selected Business within 90 days or 

within an extension to this time period, 

not to exceed 60 calendar days, which 

may be granted by the United States in 

its sole discretion, the proposed Final 

Judgment provides that the Court will 

appoint a trustee selected by the United 

States to effect the divestiture of the 

Selected Business. 

In the event that a trustee is to be 

appointed, the proposed Final Judgment 

provides that the United States shall 

select a trustee to be approved by the 

Court. If a trustee is appointed, the 

proposed Final Judgment provides that 

defendant will pay all costs and 

expenses of the trustee. The trustee’s fee 

arrangement will be structured so as to 

provide an incentive for the trustee 

based on the price and terms of the 

divestiture and the speed with which 

the divestiture is accomplished. After 

his or her appointment becomes 

effective, the trustee will file monthly 

reports with the Court and the United 

States setting forth his or her efforts to 

accomplish the divestiture. At the end 

of six months after appointment of the 

trustee, if the divestiture has not been 

accomplished, the trustee and the 

United States will make 

recommendations to the Court, which 

shall enter such orders as appropriate, 

in order to carry out the purpose of the 

trust, including extending the trust or 

the term of the trustee’s appointment. 

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 Available for 

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 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 days of the 

date of publication of this Competitive 

Impact Statement in the Federal 

Register. All comments received during 

this period will be considered by the 

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, U.S. Department of 

Justice, Antitrust Division, 1401 H St., 

NW., Suite 3000, 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 proposed 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 defendant. The United States 

could have continued the litigation and 

sought preliminary and permanent 

injunctions against Mittal Steel’s 

acquisition of Arcelor. The United 

States is satisfied, however, that the 

divestitures described in the proposed 

Final Judgment will avoid the 

transaction’s anticompetitive effects in 

the provision of Tin Mill Products, and, 

thus, would achieve all or substantially 

all of the relief the government would 

have obtained through litigation, but 

without the time and expense of a trial. 

VII. Standard of Review Under the 

APPA for the Proposed Final Judgment 

The APPA requires that proposed 

consent judgments in antitrust cases 

brought by the United States be subject 

to a sixty (60) day comment period, after 

which the Court shall determine 

whether entry of the proposed Final 

Judgment ‘‘is in the public interest.’’ 15 

U.S.C. 16(e)(1). In making that 

determination, the Court shall 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) and (B).2 As the 

United States Court of Appeals for the 

District of Columbia Circuit 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 United States v. 

Microsoft Corp., 56 F.3d 1448, 1458–62 

(D.C. Cir. 1995). 

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. 

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 

deterrnine not whether a particular decree is 

the one that will best serve society, but 

whether the settlement is ‘‘within the reaches 

of the public interest.’’ More elaborate 


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Federal Register / Vol. 71, No. 164 / Thursday, August 24, 2006 / Notices 50097 

3Cf 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’ ’’). 

requirements might undermine the 

effectiveness of antitrust enforcement by 

consent decree. 

Bechtel, 648 F.2d at 666 (emphasis 

added) (citations omitted) 3 In making 

its public interest determination, a 

district court must accord due respect to 

the government’s 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. Archer-DanielsMidland Co., 272 F. Supp. 2d 1, 6 

(D.D.C. 2003). 

Court approval of a final judgment 

requires a standard more flexible and 

less strict than the standard required for 

a finding of liability. ‘‘[A] proposed 

decree must be approved even if it falls 

short of the remedy the court would 

impose on its own, as long as it falls 

within the range of acceptability or is 

‘within the reaches of public interest.’ ’’

United States v. 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). 

Moreover, the Court’s role under the 

APPA is limited to reviewing the 

remedy in relationship to the violations 

that the United States has alleged in its 

Complaint, and does not authorize the 

Court to ‘‘construct [its] own 

hypothetical case and then evaluate the 

decree against that case.’’ Microsoft, 56 

F.3d at 1459. Because the ‘‘court’s 

authority to review the decree depends 

entirely on the government’s exercising 

its prosecutorial discretion by bringing 

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

‘‘the court is only authorized to review 

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

redraft the complaint’’ to inquire into 

other matters that the United States did 

not pursue. Id. at 1459–60. 

In its 2004 amendments to the 

Tunney Act, Congress made clear its 

intent to preserve the practical benefits 

of utilizing consent decrees in antitrust 

enforcement, adding the unambiguous 

instruction ‘‘[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). This 

language codified the intent of the 

original 1974 statute, expressed by 

Senator Tunney in the legislative 

history: ‘‘[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: 

[a]bsent a showing of corrupt failure of the 

government to discharge its duty, the Court, 

in making its public interest finding, should 

* * * carefully consider the explanations of 

the government in the competitive impact 

statement and its responses to comments in 

order to determine whether those 

explanations are reasonable under the 

circumstances. 

United States v. Mid-America 

Dairymen, Inc., 1977–1 Trade Cas. 

(CCH) ¶ 61,508, at 71,980 (W.D. Mo. 

1977). 

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: August 1, 2006. 

Respectfully submitted, 

Kerrie Freeborn, 

John Greaney, 

Stephen Harris, 

Lowell Stern (DC Bar #440487), Attorneys, 

U.S. Department of Justice, Antitrust 

Division, Litigation II Section, 1401 H Street, 

NW., Suite 3000, Washington, DC 20530, 

(202) 307–0924. 

[FR Doc. 06–7090 Filed 8–24–06; 8:45 am] 

BILLING CODE 4410–11–M 

DEPARTMENT OF JUSTICE 

Drug Enforcement Administration 

Peter A. Ahles, M.D.; Revocation of 

Registration 

On August 15, 2005, I, the Deputy 

Administrator of the Drug Enforcement 

Administration, issued an Order to 

Show Cause and further ordered the 

immediate suspension of DEA 

Certificate of Registration, AA0092558, 

issued to Peter A. Ahles, M.D. 

(Respondent), of Anaheim, California. 

The Show Cause Order proposed to 

revoke Respondent’s registration as a 

practitioner and to deny any pending 

applications for renewal or modification 

of the registration, on the ground that 

Respondent’s continued registration 

would be inconsistent with the public 

interest. See 21 U.S.C. 823(f) and 

824(a)(4). The Show Cause Order also 

immediately suspended Respondent’s 

registration based on my preliminary 

finding that his continued registration 

‘‘would constitute an immediate danger 

to the public health and safety because 

of the substantial likelihood that [he 

would] continue to acquire large 

amounts of narcotic controlled 

substances and * * * illegally 

distribute these narcotic controlled 

substances to potential abusers and 

other unauthorized persons in exchange 

for cash.’’ Show Cause Order at 3. 

The Show Cause Order specifically 

alleged that based on a review of 

transaction reports filed by DEA 

registrants, Respondent, during the 

period March 2004 to March 2005, had 

received ‘‘nearly 570,000 tablets of 

Schedule III hydrocodone and codeine 

tablets, most of which were packaged in 

500 and 1000 count bottles.’’ Id. at 1–

2. The Show Cause Order alleged that 

‘‘[t]hese are excessive amounts of 

narcotics to be legitimately dispensed or 

administered from a single practitioner’s 

office in a one-year period.’’ Id. The 

Show Cause Order further alleged that 

in the thirteen month period ending in 

April 2005, Respondent ‘‘had purchased 

over one million dosage units of 

Schedule II through V controlled 

substances, [which were] predominately 

narcotic tablets.’’ Id. at 2. 

The Show Cause Order also alleged 

that on three occasions during May 

2005, a DEA Special Agent and a 

cooperating source (CS) had visited 

Respondent’s office and made 

undercover buys of hydrocodone, a 

Schedule III controlled substance. Id. 

The Show Cause Order alleged that on 

two occasions, the Special Agent 

observed the CS pay Respondent $500 

in cash and receive a plastic bag 

containing approximately 500 tablets of 

hydrocodone. Id. The Show Cause 

Order alleged that on the other occasion, 

the Special Agent observed the CS pay 

Respondent $600 and receive a plastic 

bag containing 500 tablets of Norco, 

another hydrocodone product. Id. The 

Show Cause Order further alleged that 

Respondent made each of the 

dispensings without asking the CS for 

his medical complaint, taking a medical 

history, or conducting a physical 

examination. The Show Cause Order 

thus alleged that the distributions were 

made ‘‘without any legitimate medical 

purpose and [were] not in the course of 

legitimate medical practice’’ and 

violated 21 U.S.C. 841(a)(1). Id. 

Finally, the Show Cause Order alleged 

that Respondent had, in submitting his 

DEA renewal application, answered 


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