44138 Federal Register / Vol. 62, No. 160 / Tuesday, August 19, 1997 / Notices

public use, and park operations will be

managed over the next 10–15 years and

document agreements developed in

partnership with CDPR, SMMC, and

other land management entities.

Following publication of this Notice,

CDPR as a cooperating agency will issue

a Notice of Preparation to initiate a

complementary environmental process;

the official responsible is Donald W.

Murphy, Director, CDPR.

Santa Monica Mountains National

Recreation Area is composed of a

complex pattern of public and private

land ownership. Multiple political

jurisdictions cross important natural

features and wildlife and recreation

corridors throughout the park’s

boundary. Effective planning and

management require coordination and

cooperation among all of the entities

with responsibility for the lands and

waters both inside and immediately

outside of the park. Past NPS planning

efforts have given general guidance on

land protection, resource management

and visitor facilities. However,

pressures on the park from the number

of visitors, types of uses, and urban

encroachment combined with new fiscal

and political environments dictate that

past planning efforts be revisited.

In the proposed planning process, the

purpose of the park will be reaffirmed.

The desired future conditions of natural

and cultural resources will be

envisioned and appropriate types,

locations, and levels of activities in the

park will be determined. Of special

concern to park managers is the balance

between resource preservation and use

by the visiting and resident publics.

This balance will be considered and

established in a regional context in

concert with the other public agencies’

missions and mandates.

Specific outcomes of the planning

process and the subsequent GMP will

include:

(1) Articulation of a clear vision

among all partners for the future

conditions of natural and cultural

resources and activities on the lands

and waters in the legislated park

boundary;

(2) Enhanced connections to the

community through joint planning,

cooperative management, leadership in

stewardship, and the expression of the

cultural history of the region;

(3) Criteria for determining

appropriateness of current or future

activities including types, locations, and

levels of use. Appropriateness will be

based on park purpose, resource

concerns, and potential conflicts with

other uses;

(4) Strategies to serve a diverse park

visitor population, especially with

urban residents and nontraditional

visitors;

(5) A coordinated, seamless approach

to the provision of information and

recreation opportunities for visitors

among the various providers.

Comments

As the first phase of the planning and

EIS process, the NPS is beginning

project scoping activities. Interested

individuals, organizations, and agencies

are invited to provide comments or

suggestions on the planning process or

on specific issues that should be

addressed within the draft EIS (DEIS).

Written comments may be mailed to the

Superintendent, Santa Monica

Mountains National Recreation Area,

30401 Agoura Road, Suite 100, Agoura

Hills, CA 91301–2085. All comments

should be postmarked not later than 90

days from the date of the publication of

this notice. Public input will also be

solicited at major milestones throughout

the planning process, thus additional

opportunities to comment will be

provided in the future.

In addition, several public meetings

will be held, affording an additional

opportunity to voice issues and

concerns. These meetings are scheduled

during September 22–26, 1997 in

locations throughout the greater Los

Angeles area. The NPS will share the

purpose and significance of Santa

Monica Mountains National Recreation

Area and solicit input on managing park

resources. The dates and locations of

meetings are listed below. Additional

information may be obtained by

contacting the park at (818) 597–1036,

extension 201.

(1) Los Angeles—Sept. 22, UCLA

Ackerman Hall, 7–10 pm;

(2) Malibu—Sept. 23, Webster

Elementary, 6–9 pm;

(3) Santa Monica—Sept. 24, Santa

Monica Library, 2–5 pm;

(4) Ventura—Sept. 25, Ventura

County Building, 2–5 pm;

(5) Agoura—Sept. 26, Radisson Hotel,

3–6 pm.

General information about Santa

Monica Mountains National Recreation

Area is currently available on the

Internet at http://www.nps.gov/samo. In

the near future, information about the

planning process and EIS/GMP will be

available via the NPS planning page at

http://www.nps.gov/planning.

Decision Process

The subsequent availability of the

DEIS/GMP will be announced by formal

notice and in local and regional news

media. The DEIS/GMP is anticipated to

be completed and available for public

review during the summer of 1999. A

final EIS/GMP is anticipated to be

completed approximately one year later.

A Record of Decision will be published

in the Federal Register not sooner than

thirty (30) days after distribution of the

FEIS/GMP. The responsible official is

John J. Reynolds, Regional Director,

Pacific West Region, National Park

Service.

Dated: August 1, 1997.

Sondra S. Humphries,

Acting Regional Director, Pacific West.

[FR Doc. 97–21904 Filed 8–18–97; 8:45 am]

BILLING CODE 4310–70–P

DEPARTMENT OF JUSTICE

Antitrust Division

United States v. Allied Waste

Industries, Inc.; 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) through (h), that a

Complaint, Stipulation and Order and a

proposed Final Judgment, an Amended

Complaint, Notice of Filing an

Amended Complaint and proposed

Final Judgment, and a Competitive

Impact Statement have been filed with

the United States District Court for the

Northern District of Texas, Fort Worth

Division in United States and State of

Texas v. Allied Waste Industries, Inc.,

Civil Action No. 497–CV 564 E.

On July 14, 1997, the United States

and State of Texas filed a Complaint

naming Allied Waste Industries, Inc.

and USA Waste Services, Inc. as

defendants. On July 15, 1997, a

Stipulation and Order were filed and

entered along with a proposed Final

Judgment. Pursuant to the Stipulation

and Order, an Amended Complaint, and

an amended proposed Final Judgment

both of which dropped USA Waste

Service, Inc. as a defendant, were filed

on July 29, 1997. A Competitive Impact

Statement was also filed on July 29,

1997. The Complaint and Amended

Complaint alleged that the proposed

acquisition by Allied Waste Industries,

Inc. (‘‘Allied’’) of the Crow Landfill in

Tarrant County, Texas from USA Waste

Services, Inc. would violate Section 7 of

the Clayton Act, 15 U.S.C. § 18. The

amended proposed Final Judgment,

filed the same time as the Amended

Complaint, requires Allied to, among

other things, to divest more than 1.4

million cubic yards of landfill space

over a five-to-ten year period at the two

landfills Allied will own in the Tarrant

County area after the acquisition; to

accept waste at each of the two Allied
Federal Register / Vol. 62, No. 160 / Tuesday, August 19, 1997 / Notices 44139

landfills in the Tarrant County area from

haulers not affiliated with Allied on

non-price terms and conditions

identical to those provided to Allied;

and to sell additional landfill space in

the event that Allied expands its

capacity at the Crow Landfill or

develops a new landfill near the Crow

Landfill within the next ten years.

Public comment is invited within the

statutory 60-day comment period. Such

comments and response thereto will be

published in the Federal Register and

filed with the Court. Comments should

be directed to J. Robert Kramer, Chief,

Litigation II Section, Antitrust Division,

United States Department of Justice,

1401 H Street, NW, Suite 3000,

Washington, DC 20530 (telephone: 202–

307–0924).

Copies of the Complaint, Stipulation

and Order, Amended Complaint, Notice

of Filing Amended Complaint and

Proposed Final Judgment, the proposed

Final Judgment, and the Competitive

Impact Statement are available for

inspection in Room 215 of the U.S.

Department of Justice, Antitrust

Division, 325 7th Street, NW,

Washington, DC 20530, (202) 514–2841.

Copies for these materials may be

obtained upon request and payment of

a copying fee.

Constance K. Robinson,

Director of Operations.

United States District Court, Northern

District of Texas, Fort Worth Division

United States of America and State of

Texas, Plaintiffs, v. Allied Waste Industries,

Inc., and USA Waste Services, Inc.

Defendants. Civil Action No.: 497–CV–564 E.

Stipulation and Order

It is stipulated by and between the

undersigned parties, through their

respective attorneys, that:

1. The Court has jurisdiction over the

subject matter of this action and over

each of the parties hereto, and venue of

this action is proper in the Northern

District of Texas.

2. The parties consent that a Final

Judgment in the form hereto attached

may be filed and entered by the Court,

upon the motion of any party or upon

the Court’s own motion, at any time

after compliance with the requirements

of the Antitrust Procedures and

Penalties Act (15 U.S.C. § 16(b)–(h)),

and without further notice to any party

or other proceedings, provided that

plaintiff United States has not

withdrawn its consent, which it may do

at any time before the entry of the

proposed Final Judgment by serving

notice thereof on defendants and by

filing that notice with the Court.

3. The defendants shall abide by and

comply with the provisions of the

proposed Final Judgment pending entry

of the Final Judgment, or until

expiration of time for all appeals of any

court ruling declining entry of the

proposed Final Judgment and shall,

from the date of the signing of this

Stipulation, comply with all the terms

and provisions of the proposed Final

Judgment thereof as though the same

were in full force and effect as an order

of the Court.

4. This Stipulation shall apply with

equal force and effect to any amended

proposed Final Judgment agreed upon

in writing by the parties and submitted

to the Court. In the event that, as

contemplated by defendants, the assets

which are the subject of the Complaint

and proposed Final Judgment (‘‘the

Crow Landfill’’) are transferred by

defendant USA Waste Services, Inc.

(‘‘USA Waste’’) to defendant Allied

Waste Industries, Inc. (‘‘Allied’’)

subsequent to the Court entering this

Stipulation and prior to the entry of the

attached Final Judgment, than an

amended Complaint and amended

proposed Final Judgment which do not

name USA Waste as a defendant in

either pleading shall be filed herein and

submitted to the Court.

5. In the event plaintiff United States

withdraws its consent, as provided in

paragraph 2 above, or if the proposed

Final Judgment is not entered pursuant

to this Stipulation, the time has expired

for all appeals of any Court ruling

declining entry of the Final Judgment,

and if the Court has not otherwise

ordered continued compliance with the

terms and provisions of the Final

Judgment, then the parties are released

from all further obligations under this

Stipulation, and the making of this

Stipulation shall be without prejudice to

any party in this or any other

proceeding.

6. Allied represents that the

divestiture ordered in the proposed

Final Judgment can and will be made,

and that it will later raise no claims of

hardship or difficulty as grounds for

asking the court to modify any of the

divestiture provisions contained

therein.

7. The parties request that the Court

acknowledge the terms of this

Stipulation by entering the Order in this

pleading. Respectfully submitted.

For Plaintiff United States of America:

Joel I. Klien,

Acting Assistant Attorney General.

Donna E. Patterson,

Counselor to the Assistant Attorney General.

Charles E. Biggo,

Senior Counsel to the Assistant Attorney

General.

Constance K. Robinson,

Director of Operations.

J. Robert Kramer II,

PA Bar #23963.

Willie L. Hudgins,

DC Bar #37127.

David R. Bickel.

DC Bar #393409.

Michael K. Hammaker,

DC Bar #233684

Attorneys, Department of Justice, Antitrust

Division, 1401 H St., N.W., Suite 3000,

Washington, D.C. 20530, (202) 307–0924,

(202) 307–6283 (Facsimile)

Paul E. Coggins,

United States Attorney.

MARC W. BARTA,

TX Bar #01838200, Assistant U.S. Attorney,

Northern District of Texas, 801 Cherry Street,

Ste. 1700, Fort Worth, TX 76102–6897, (817)

978–3291, (817) 978–6351 (Facsimile)

Dated: July 14, 1997.

For Plaintiff State of Texas:

Dan Morales,

Attorney General of Texas.

Jorge Vega,

First Assistant Attorney General.

Laquita A. Hamilton,

Deputy Attorney General for Litigation.

Paul Elliott,

Chief Consumer Protection Division.

Mark Tobey,

Assistant Attorney General, Chief Antitrust

Section.

Amy R. Krasner,

Assistant Attorney General, TX Bar

#00791050.

Office of the Attorney General of Texas, P.O.

Box 12548, Austin, TX 78711–2548, (512)

463–2185, (512) 320–0975

Dated: July 14, 1997.

For Defendant USA Waste Services, Inc.:

James R. Weiss,

DC Bar #379798, Preston Gates Ellis &

Rouvelas Meeds LLP, Suite 500, 1735 New

York Avenue, NW., Washington, DC 20006–

5209, (202) 662–8400, (202) 789–0988

(Facsimile)

Attorneys for USA Waste Services, Inc.

Date: July 11, 1997.

James D. McCarthy,

TX Bar #13367700, Hughes & Luce, 1717 Main

Street, Suite 2800, Dallas, TX 75201, (214)

939–5441, (213) 939–6100 (Facsimile)

Local Counsel for USA Waste Services, Inc.

Date: July 14, 1997.
44140 Federal Register / Vol. 62, No. 160 / Tuesday, August 19, 1997 / Notices

For Defendant Allied Waste Industries,

Inc.:

Tom D. Smith,

DC Bar #221986, Jones, Day, Reavis & Pogue,

Metropolitan Square, 1450 G Street, NW.,

Washington, DC 20005–2088, (202) 879–3900,

(202) 737–2832 (Facsimile)

Attorneys for Allied Waste Industries, Inc.

Date: July 11, 1997.

Thomas R. Jackson,

TX Bar #10496700, Jones, Day, Reavis &

Pogue, 2300 Trammel Crow Center, 2001 Ross

Avenue, Dallas, TX 75202–2958, (214) 220–

3939, (214) 969–5100 (Facsimile)

Local Counsel For Allied Waste Industries,

Inc.

Date: July 11, 1997.

Upon Review of this Stipulation by

the parties, the Court acknowledges by

this Order that the parties have

consented to the terms specified in this

Stipulation and the entry of the Final

Judgment subject to the provisions of

the Antitrust Procedures and Penalties

Act (15 U.S.C. § 16 (b)—(h)).

So ordered on this 15th day of July,

1997.

Eldon B. Mahon,

United States District Court Judge.

Certification of Service

I hereby certify that a copy of the

foregoing has been served upon the

attorneys for USA Waste Services, Inc.,

the attorneys for Allied Waste

Industries, Inc, and the Office of the

Attorney General of the State of Texas,

by placing a copy in the U.S. Mail,

directed to each of the above-named

parties at the addresses given below,

this 14th day of July, 1997.

USA Waste Services, Inc., c/o James R.

Weiss, Preston, Gates, Suite 500, 1735

New York Ave., NW., Washington, DC

20006

USA Waste Services, Inc., c/o James D.

McCarthy, Hughes & Luce, 1717 Main

Street, Suite 2800, Dallas, TX 75201

Allied Waste Industries, Inc., c/o Tom

D. Smith, Jones, Day, Reavis, & Pogue,

Metropolitan Square, 1450 G Street,

NW., Washington, DC 20005–2088

Allied Waste Industries, Inc., c/o

Thomas R. Jackson, Jones, Day, Reavis

& Pogue, 2300 Trammel Crow Center,

2001 Ross Avenue, Dallas, TX 75202–

2598

State of Texas: Amy Krasner, Assistant

Attorney General, Antitrust Section,

Office of the Attorney General of

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

78711–2548

David R. Bickel,

Attorney, U.S. Department of Justice,

Antitrust Division, 1401 H Street, N.W., Suite

3000, Washington, D.C. 20530, (202) 307–

0924, (202) 307–6283 (Facsimile).

United States District Court, Northern

District of Texas, Forth Worth Division

United States of America and State of

Texas, Plaintiffs, v. Allied Waste Industries,

Inc. Defendant. Civil Action No.: 497–CV 564

E. Filed 7/29/97.

Final Judgment

Whereas, plaintiffs, United States of

America (‘‘United States’’) and the State

of Texas (‘‘Texas’’), having filed their

Complaint herein on July 11, 1997, and

Amended Complaint on July 29, 1997,

and plaintiffs and defendant Allied

Waste Industries, Inc. (‘‘Allied’’), by its

attorneys, having consented to the entry

of this Final Judgment without trial or

adjudication of any issue of fact or law

herein, and without this Final Judgment

constituting any evidence against or an

admission by any party with respect to

any issue of law or fact herein;

And Whereas, defendant Allied has

agreed to be bound by the provisions of

this Final Judgment pending its

approval by the Court;

And Whereas, prompt and certain

divestiture of certain assets to assure

that competition is not substantially

lessened is the essence of this

agreement;

And Whereas, the parties intend to

require Allied to divest Airspace Assets

as specified herein;

And Whereas, defendant has

represented to plaintiffs that the

divestiture required below can and will

be made and that Allied will later raise

no claims of hardship or difficulty as

grounds for asking the Court to modify

any of the terms contained below;

Now, Therefore, before the taking of

any testimony, and without trial or

adjudication of any issue of fact or law

herein, and upon consent of the parties

hereto, it is hereby Ordered, Adjudged,

and Decreed as follows:

I. Jurisdiction

This Court has jurisdiction over the

subject matter of this action and over

each of the parties hereto. The

Complaint states a claim upon which

relief may be granted against the

defendant under Section 7 of the

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

§ 18).

II. Definitions

As used in this Final Judgment:

A. ‘‘Allied’’ means defendant Allied

Waste Industries, Inc., a Delaware

corporation with its headquarters in

Phoenix, Arizona, and its successors

and assigns, their subsidiaries, affiliates,

directors, officers, managers, agents and

employees.

B. ‘‘USA Waste’’ means USA Waste

Services, Inc., a Delaware corporation

with its headquarters in Houston, Texas,

and its successors and assigns, their

subsidiaries, affiliates, directors,

officers, managers, agents and

employees.

C. ‘‘Tarrant County Area’’ means the

Texas counties of Tarrant, Johnson and

Denton.

D. ‘‘Crow Landfill’’ means that

landfill also known as the Fort Worth

Landfill and located in Tarrant County

at 7797 Confederate Park Road, Fort

Worth, Texas 76108.

E. ‘‘Turkey Creek Landfill’’ means that

landfill located in Johnson County at

Interstate 35 West and Exit 21, P.O.

Drawer 0, Alvarado, Texas 76009.

F. ‘‘Airspace Assets’’ means the assets

to be divested by Allied in this Final

Judgment. The term means the right to

dispose (1) over a five-year period,

beginning on the date of the divestiture,

or the life of the Crow Landfill,

whichever is longer, of up to a total of

880,000 cubic yards of waste, measured

at the gate house, at the Crow Landfill,

and (2) over a ten-year period, beginning

on the date of the divestiture, of up to

a total of 560,000 cubic yards of waste

at the Turkey Creek Landfill. The

disposal volumes specified at each

landfill shall be subject to modification

in accordance with the provisions of

Sections IV.D(3) and IV.D(4) herein. The

aggregate airspace rights at the Crow

Landfill and the Turkey Creek Landfill

may be divided and sold to separate

purchasers. In addition, the airspace

rights at each landfill may be sold to

more than one purchaser. In any single

year, the purchaser(s) of the airspace

rights may not dispose of more than the

Maximum Annual Disposal amount

specified in Section II.G.

G. ‘‘Maximum Annual Disposal’’

means the maximum amount the

purchaser of the airspace rights may

dispose of in one year at the Crow or

Turkey Creek Landfills under an

agreement to purchase Airspace Assets.

Based on the total cubic yards specified

in Section II.F, the ‘‘Maximum Annual

Disposal’’ is 275,000 cubic yards at the

Crow Landfill and 125,000 cubic yards

at the Turkey Creek Landfill, plus any

increases in the Airspace Assets due to

the inclusion of additional space as

required by Sections IV.B, IV.D(3) and

IV.D(4). If more than one company

purchases the Airspace Assets at the

Crow Landfill, the Maximum Annual

Disposal for each purchaser shall be
Federal Register / Vol. 62, No. 160 / Tuesday, August 19, 1997 / Notices 44141

specified in the respective purchase

agreement, and the collective total of all

purchasers’ Maximum Annual Disposals

at the Crow Landfill shall be no less

than 275,000 cubic yards. If more than

one company purchases the Airspace

Assets at the Turkey Creek Landfill, the

Maximum Annual Disposal for each

purchaser shall be specified in the

respective purchase agreement, and the

collective total of all purchasers’

Maximum Annual Disposals at the

Turkey Creek Landfill shall be no less

than 125,000 cubic yards.

H. ‘‘Independent Hauler’’ means any

private company (other than Waste

Management of North America, Inc.

(‘‘WMI’’), Waste Management,

Incorporated (‘‘WMX’’) or Allied) or

municipality that provides waste

hauling service in the Tarrant County

Area.

III. Applicability

A. The provisions of this Final

Judgment apply to the defendant Allied,

its successors and assignees, its

subsidiaries, affiliates, directors,

officers, managers, agents, and

employees, and all other persons in

active concert or participation with any

of them who shall have received actual

notice of this Final Judgment by

personal service or otherwise.

B. Allied shall require, as a condition

of the sale or other disposition of all or

substantially or all of its assets, or of a

business unit that includes Allied’s

disposal business in the Tarrant County

Area, that the acquiring party or parties

agree to be bound by the provisions of

this Final Judgment.

IV. Divestiture of Assets and Other

Terms

A. Allied is hereby ordered and

directed, within one hundred twenty

(120) days from the filing of the

Complaint in this matter, or within five

(5) days after notice of the entry of this

Final Judgment by the Court, whichever

is later, to divest the Airspace Assets as

specified in Section II.F to a firm which

is acceptable to the United States, in its

sole determination, after consultation

with Texas. Allied is further ordered

and directed to notify plaintiffs in

writing immediately when they have

completed the divestitures.

B. Following the date of divestiture,

Allied shall maintain detailed records,

subject to inspection by the United

States and Texas in accordance with the

provisions of Section IX.

C. If Allied closes the Crow Landfill

during the term of any agreement to

purchase Airspace Assets applicable to

the Crow Landfill, Allied shall meet its

obligations under each purchase

agreement for Airspace Assets by

providing equivalent space at the

Turkey Creek Landfill. The space at the

Turkey Creek Landfill shall be provided

under the same terms and conditions

which were previously available to the

purchaser(s) at the Crow Landfill, or, at

the purchaser’s option, under those

disposal terms and conditions

previously available to the purchasers of

the Airspace Assets at the Turkey Creek

Landfill.

D. Allied is hereby ordered and

directed to comply with the following

obligations:

(1) Assurance of Space Letters. Allied

will supply, in a timely manner, any

Independent Hauler with a letter

assuring a municipality that the hauler

can dispose of that municipality’s waste

in Allied’s Crow or Turkey Creek

Landfills.

(2) Nondiscrimination. Allied agrees

that (a) for any hauler or municipality

it has agreed to accept waste from at

either the Crow or Turkey Creek

Landfills, and (b) for each purchaser of

Airspace Assets or such persons

designated by the purchaser to dispose

of waste at the Crow or Turkey Creek

Landfills, it will operate that landfill,

gate, scale house, and disposal area

under terms and conditions no less

favorable than those provided to

Allied’s vehicles or to the vehicles of

any municipality in the Tarrant County

Area, except as to price and credit

terms.

(3) Additional Airspace Assets. If

Allied obtains a permit within ten years

to expand the Crow Landfill or to

develop a new landfill adjacent to the

Crow Landfill, it agrees to sell 20% of

the expanded capacity to the existing

Airspace Assets purchaser(s) at rates

agreed to in the original purchase

agreement for airspace assets. If the

purchaser(s) does not buy the

Additional Airspace Assets, Allied

agrees to offer those assets for sale in the

same manner it sold the original

Airspace Assets.

(4) Airspace Asset Minimums. The

amounts of waste to be divested under

the sale of the Airspace Assets are

minimums and are based on cubic yards

measured at the gate. If the actual

remaining capacity at the Crow Landfill

is greater than the original estimate of

4.4 million gate yards, Allied shall offer

to sell (a) at the Crow Landfill, 20% of

the remaining disposal capacity in

excess of 4.4 million gate yards, and (b)

at the Turkey Creek Landfill, 10% of the

remaining disposal capacity in excess of

4.4 million gate yards, to the

purchaser(s) of the Airspace Assets at

the rates and terms specified in each

purchase agreement for the Airspace

Assets.

(5) Approval. Allied will not repurchase any portion of the Airspace

Assets without approval from the

Department of Justice, in its sole

determination, after consultation with

Texas.

E. As part of the sale of the Airspace

Assets, Allied will include an agreement

to accept waste from each purchaser or

such persons designated by the

purchaser to dispose of waste at the

Crow Landfill or the Turkey Creek

Landfill.

F. Unless the United States, after

consultation with Texas, otherwise

consents in writing, divestiture under

Section IV.A, or by the trustee

appointed pursuant to Section V, shall

be accomplished in such a way as to

satisfy the United States, in its sole

determination after consultation with

Texas, that the Airspace Assets can and

will be used by the purchaser as part of

a viable, ongoing business engaged in

solid waste disposal in the Tarrant

County Area. The divestiture made by

Allied under Section IV.A or by the

trustee under Section V.A shall be made

(1) to a purchaser or purchasers that, in

the sole judgment of the United States,

has or have the capability and intent of

competing effectively in the Tarrant

County Area, and (2) has or have the

managerial, operational, and financial

capability to compete effectively in

solid waste disposal in the Tarrant

County Area.

G. In accomplishing the divestitures

ordered by this Final Judgment, Allied

promptly shall make known, by usual

and customary means, the availability of

the Airspace Assets described in this

Final Judgment. Allied shall inform any

person making an inquiry regarding a

possible purchase that the sale is being

made pursuant to this Final Judgment

and provide such person with a copy of

this Final Judgment. Allied shall also

offer to furnish to all bona fide

prospective purchasers, subject to

customary confidentiality assurances,

all information regarding the Airspace

Assets customarily provided in a due

diligence process except such

information subject to attorney-client or

work-product privileges. Allied shall

make available such information to

plaintiffs at the same time such

information is made available to any

other person. In giving notice of the

availability of the Airspace Assets,

Allied shall not exclude any persons

bound by any non-compete obligations

to Allied or USA Waste.

H. Allied shall waive any noncompete obligation that would prohibit
44142 Federal Register / Vol. 62, No. 160 / Tuesday, August 19, 1997 / Notices

any person from acquiring the Airspace

Assets.

I. Allied shall take all reasonable steps

to accomplish quickly the divestiture

contemplated by this Final Judgment.

J. Pursuant to its divestiture of the

Airspace Assets, Allied shall promptly

advise the United States and Texas of its

method for determining capacity at the

Crow Landfill and for informing

purchaser(s) expeditiously of any

increase in the Airspace Assets as

specified in Section IV.D(4). The

proposed method shall be subject to the

approval of the United States, in its sole

determination, after consultation with

Texas.

V. Appointment of Trustee

A. In the event that Allied has not

divested all of the assets required by

Section IV.A, within the applicable time

period specified, the Court shall

appoint, on application of the United

States, after consultation with Texas, a

trustee selected by the United States to

effect the divestiture required by

Section IV.A. After the appointment of

a trustee becomes effective, only the

trustee shall have the right to sell the

assets required to be divested pursuant

to Section IV.A. Subject to Sections V.B

and VI of this Final Judgment, the

trustee shall have the power and

authority to hire at the cost and expense

of Allied any investment banker,

attorneys or other agents reasonably

necessary in the judgment of the trustee

to assist in the divestiture, and such

professionals or agents shall be solely

accountable to the trustee. The trustee

shall have the power and authority to

accomplish the divestiture at the best

price then obtainable upon a reasonable

effort by the trustee, subject to the

provisions of Section VI of this Final

Judgment, and shall have such other

powers as the Court shall deem

appropriate. The trustee shall have the

power and authority to accomplish the

divestiture at the earliest possible time

to a purchaser acceptable to the United

States, in its sole judgment after

consultation with Texas. Allied shall

not object to a sale by the trustee on any

grounds other than the trustee’s

malfeasance. Any such objections by

Allied must be conveyed in writing to

plaintiffs and the trustee within ten (10)

days after the trustee has provided the

notice required under Section VI.

B. The trustee shall serve at the cost

and expense of Allied, on such terms

and conditions as the Court may

prescribe, and shall account for all

monies derived from the sale of the

assets sold by the trustee and all costs

and expenses so incurred. After

approval by the Court of the trustee’s

accounting, including fees for its

services, all remaining money shall be

paid to Allied and the trust shall then

be terminated. The compensation of

such trustee shall be reasonable 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.

C. Allied shall use its best efforts to

assist the trustee in accomplishing the

required divestiture. Subject to a

customary confidentiality agreement,

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 divestiture assets, and Allied

shall develop financial or other

information relevant to such assets as

the trustee may reasonably request.

Allied shall take no action to interfere

with or to impede the trustee’s

accomplishment of the divestiture.

D. After its appointment becomes

effective, the trustee shall file monthly

reports with the parties and the Court

setting forth the trustee’s efforts to

accomplish the divestiture ordered

under this Final Judgment, provided,

however, that 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 Airspace Assets, and shall

describe in detail each contact with any

person during that period. The trustee

shall maintain full records of all efforts

made to divest the Airspace Assets.

E. If the trustee has not accomplished

such divestiture within six months after

its appointment becomes effective, the

trustee shall thereupon 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,

provided however, that to the extent

such reports contain information that

the trustee deems confidential, such

reports shall not be filed in the public

docket of the Court. The trustee shall at

the same time furnish such report of the

parties, who shall each have the right to

be heard and to make additional

recommendations consistent with the

purpose of the Final Judgment. The

Court shall thereafter enter such orders

as it shall deem appropriate in order to

carry out the purpose of the Final

Judgment, which shall, if necessary,

include extending the trust and the term

of the trustee’s appointment.

VI. Notification

A. Within two (2) business days

following execution of a binding

agreement to divest, including all

contemplated ancillary agreements

required to effect any proposed

divestiture pursuant to Section IV or V

of the Final Judgment, Allied or the

trustee, whichever is then responsible

for effecting the divestiture required

herein, shall notify plaintiffs of the

proposed divestiture. If the trustee is

responsible, it shall similarly notify

Allied. The notice shall set forth the

details of the proposed transaction and

list the name, address, and telephone

number of each person not previously

identified who offered or expressed an

interest or desire to acquire any

ownership interest in the Airspace

Assets or any of them, together with full

details of the same. Within fifteen (15)

days after receipt of the notice, plaintiffs

may request from Allied, the proposed

purchasers, or the trustee, if applicable,

additional information concerning the

proposed divestiture, the proposed

purchaser or purchasers, and any other

potential purchaser. Allied or the

trustee shall furnish the additional

information within fifteen (15) days of

the receipt of the request. Within thirty

(30) days after receipt of the notice or

within fifteen (15) days after receipt of

the additional information, whichever is

later, the United States, after

consultation with Texas, shall notify in

writing Allied and the trustee, if there

is one, if it objects to the proposed

divestiture. If the United States fails to

object within the period specified, or if

the United States notifies in writing

Allied and the trustee, if there is one,

that it does not object, then the

divestiture may be consummated,

subject only to Allied’s limited right to

object to the sale under Section V.A.

Upon objection by Allied under Section

V.A., a divestiture proposed shall not be

consummated unless approved by the

Court.

B. Thirty (30) days from the date

when the sale of the Crow Landfill from

USA Waste to Allied is consummated,

but in no event later than August 30,

1997, and every thirty (30) days

thereafter until the divestiture has been

completed, Allied shall deliver to

plaintiffs an affidavit as to the fact and

manner of compliance with Sections IV

and V of this Final Judgment. Each such

report shall include, for each person

who during the preceding thirty (30)
Federal Register / Vol. 62, No. 160 / Tuesday, August 19, 1997 / Notices 44143

days made an offer, expressed an

interest or desire to acquire, entered into

negotiations to acquire, or made an

inquiry about acquiring any ownership

interest in the Airspace Assets or any of

them, the name, address, and telephone

number of that person and a detailed

description of each contact with that

person during that period. Allied shall

maintain full records of all efforts made

to divest the Airspace Assets or any of

them.

VII. Financing

Allied shall not finance all or any part

of any purchase made pursuant to

Sections IV or V of this Final Judgment

without the prior written consent of the

United States, after consultation with

Texas.

VIII. Preservation of Assets

Until the divestitures required by the

Final Judgment have been

accomplished, Allied shall take all steps

necessary to ensure that the Airspace

Assets are fully maintained in operable

condition, and shall maintain and

adhere to normal or previously

approved repair, improvement, and

maintenance schedules and comply

with all federal and state regulations

concerning landfills. Allied shall also

take no action that would jeopardize the

sale of the Airspace Assets. Allied shall

appoint a person with oversight

responsibility for the preservation of

assets to insure compliance with this

section of the Final Judgment.

IX. Compliance Inspection

For the purpose of determining or

securing compliance with this Final

Judgment, and subject to any legally

recognized privilege, from time to time:

A. Duly authorized representatives of

the United States or Texas, including

consultants and other persons retained

by the plaintiffs, shall, upon the written

request of the Assistant Attorney

General in charge of the Antitrust

Division or the Attorney General of the

State of Texas, and on reasonable notice

to Allied made to its principal offices,

be permitted:

1. Access during office hours to

inspect and copy all books, ledgers,

accounts, correspondence, memoranda,

and other records and documents in the

possession or under the control of

Allied, which may have counsel

present, relating to any matters

contained in this Final Judgment; and

2. Subject to the reasonable

convenience of Allied and without

restraint or interference from them, to

interview, either informally or on the

record, Allied’s directors, officers,

employees, and agents who may have

counsel present, regarding any such

matters.

B. Upon the written request of the

Assistant Attorney General in charge of

the Antitrust Division or the Attorney

General of the State of Texas made to

Allied and USA Waste at its principal

offices, defendant shall submit such

written reports, under oath if requested,

with respect to any of the matters

contained in this Final Judgment as may

be requested.

C. No information nor any documents

obtained by the means provided in this

Section IX shall be divulged by any

representative of the United States or

the Office of the Attorney General of

Texas to any person other than a duly

authorized representative of the

Executive Branch of the United States or

of the Office of the Attorney General of

Texas except in the course of legal

proceedings to which the United States

or Texas 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 Allied to

plaintiffs, Allied represents and

identifies in writing the material in any

such information or documents for

which a claim of protection may be

asserted under Rule 26(c)(7) of the

Federal Rules of Civil Procedure, and

defendant marks each pertinent page of

such material, ‘‘Subject to claim of

protection under Rule 26(c)(7) of the

Federal Rules of Civil Procedure,’’ then

plaintiffs shall give ten (10) days notice

to Allied prior to divulging such

material in any legal proceeding (other

than a grand jury proceeding) to which

Allied is not a party.

X. Retention of Jurisdiction

Jurisdiction is retained by this Court

for the purpose of enabling any of the

parties to this Final Judgment to apply

to this Court at any time for such further

orders and directions as may be

necessary or appropriate for the

construction, implementation, or

modification of any of the provisions of

this Final Judgment, for the enforcement

of compliance herewith, and for the

punishment of any violations hereof.

XI. Termination

Unless this Court grants an extension,

this Final Judgment will expire on the

tenth anniversary of the date of its entry.

XII. Public Interest

Entry of this Final Judgment is in the

public interest.

Dated: llllllllllllllll

Court approval subject to procedures of

Antitrust Procedures and Penalties Act, 15

U.S.C. § 16.

lllllllllllllllllllll

United States District Judge

United States District Court, Northern

District of Texas, Fort Worth Division

United States of America and State of

Texas, Plaintiffs, v. Allied Waste Industries,

Inc., Defendant.

Civil Action No.: 497–CV 564 E.

Competitive Impact Statement

The United States, pursuant to

Section 2(b) of the Antitrust Procedures

and Penalties Act (‘‘APPA’’), 15 U.S.C.

§ 16(b)–(h), files this Competitive

Impact Statement relating to the

proposed Final Judgment submitted for

entry in this civil antitrust proceeding.

I. Nature and Purpose of the Proceeding

On July 14, 1997, the United States

filed a civil antitrust Complaint alleging

that the proposed acquisition by Allied

Waste Industries, Inc. (‘‘Allied’’) of the

Crow Landfill in Tarrant County, Texas

from USA Waste Industries, Inc. (‘‘USA

Waste’’) would violate Section 7 of the

Clayton Act, 15 U.S.C. § 18. An

Amended Complaint was filed on July

29, 1997. The Complaint alleges that

Allied and USA Waste are two of only

four competitors in the greater Tarrant

County area that operate commercial

landfills for the disposals of municipal

solid waste (‘‘MSW’’) generated in

Tarrant County. If the acquisition were

consummated, there would be only

three operators competing to dispose of

MSW generated in Tarrant County, and

that loss of competition would likely

result in consumers paying higher

prices for waste disposal and hauling

and receiving fewer or lesser quality

services. MSW disposal is a service

which involves the receiving of waste at

landfills from haulers which have

collected paper, food, construction

material and other solid wastes from

homes, businesses and industries, and

transported that waste to a landfill. The

payer for relief in the Complaint seeks:

(1) a judgment that the proposed

acquisition would violate Section 7 of

the Clayton Act; and (2) a permanent

injunction preventing Allied from

acquiring the Crow Landfill from USA

Waste.

When the Complaint was filed, the

United States also filed a proposed

settlement that would permit Allied to

complete its acquisition of USA Waste’s

Crow Landfill, but require certain

divestitures of Airspace Assets and

other terms that will preserve

competition in the relevant market. This

settlement consists of a Stipulation and

Order and a proposed Final Judgment.
44144 Federal Register / Vol. 62, No. 160 / Tuesday, August 19, 1997 / Notices

The proposal Final Judgment requires

Allied to sell the right to dispose of

waste at the Crow Landfill being

acquired by Allied from USA Waste,

and at Allied’s Turkey Creek Landfill in

Johnson County. In particular, Allied is

ordered to (1) divest up to a total of

880,000 cubic yards of disposal space,

measured at the gate house, at the Crow

Landfill over a five year period or the

life of the Crow Landfill, whichever is

longer; and (2) divest up to a total of

560,000 cubic yards of disposal space at

the Turkey Creek Landfill over a ten

year period (together, ‘‘Airspace

Assets’’). The Airspace Assets may be

divided and sold to separate purchasers.

In any single year, the purchaser(s) of

the Airspace Assets may not dispose of

more than the Maximum Annual

Disposal amounts specified in the Final

Judgment, which is 275,000 cubic yards

at Crow and 125,000 cubic yards at

Turkey Creek.

Allied is also required to supply, in a

timely manner, any Independent Hauler

with a letter assuring the municipality

that the hauler can dispose of that

municipality’s waste in Allied’s Crow or

Turkey Creek Landfills. Allied has

agreed to nondiscrimination terms. It

will accept waste from haulers not

affiliated with Allied under conditions

no less favorable than those provided to

Allied’s vehicles. Further, if Allied

obtains a permit within ten years to

expand the Crow Landfill or to develop

a new landfill adjacent to the Crow

Landfill, it agrees to sell 20% of the

expanded capacity to the existing

Airspace Assets purchaser(s) at the rates

and terms specified in the original

Airspace Assets purchase agreement. If

the purchaser does not buy the assets,

Allied will offer it for sale in the same

manner it sold the original Airspace

Assets.

The amounts of disposal space to be

divested are minimums and are based

on cubic yards measured at the gate. If

the actual remaining capacity of the

Crow Landfill is greater than 4.4 million

cubic yards, Allied must offer for sale

20% of the additional capacity at the

Crow Landfill and 10% of the additional

capacity at the Turkey Creek Landfill at

the rates and terms specified in the

original Airspace Assets purchase

agreement(s). Allied will not repurchase any portion of the assets

without approval from the Department

of Justice after consultation with Texas.

The plaintiffs 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 the 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

Allied is among the ten largest solid

waste hauling and disposal companies

in the nation, and serves municipal,

commercial, industrial and residential

customers in 22 states. USA Waste is the

third largest in the nation, and serves

the same type of customers in 32 states.

In 1996, Allied had total revenues of

over $806 million and USA Waste had

total revenues of over $1 billion.

On March 7, 1997, Allied agreed to

acquire the Crow Landfill and other

assets from USA Waste. This

transaction, which would take place in

the highly concentrated MSW disposal

market at commercial landfills in the

greater Tarrant County area, precipitated

the government’s suit.

B. Product and Geographic Markets

The requirements imposed by Texas

law and regulations limit the means by

which MSW can be properly disposed.

Landfills that are open to the general

public, or ‘‘commercial landfills,’’

generally accept MSW from anyone or

anywhere. Disposal of MSW at these

commercial landfills is a line of

commerce and a relevant product

market. Landfills that accepts MSW

from only certain areas, such as

Arlington, Grand Prairie, and the City of

Fort Worth landfills or ‘‘captive

landfills,’’ are not viewed by most

haulers of MSW to be substitutes for

commercial landfills which includes

Tarrant County, northern Johnson

County, and southern Denton County.

One of the captive landfills, the City of

Fort Worth landfill, primarily accepts

waste hauled to it from private

individuals rather than commercial

haulers.

The cost of transporting MSW to a

landfill site can be a substantial

component of the cost of disposal. Total

disposal costs may account for as much

as 50 percent of the actual amount

charged by a hauler for its collection

services, hence limiting the areas where

MSW can be economically transported

and disposed of by haulers. The

geographic location of landfills and

associated transportation costs create

localized markets for the disposal of

MSW.

Due to the high costs of transporting

MSW, and the substantial travel time to

other landfills based on distance or

congested roadways, haulers of MSW

generated in Tarrant County are limited

to those commercial landfills located in

the greater Tarrant County area, which

includes Tarrant County, northern

Johnson County, and southern Denton

County. The four operators of

commercial landfills in the relevant

geographic market to which haulers of

MSW generated in Tarrant County turn

to dispose of MSW are USA Waste,

which owns the Crow Landfill; Allied,

which owns the Turkey Creek Landfill;

WMI, which owns both the Westside

Landfill and DFW Landfill; and the City

of Farmers Branch, which owns the

Camelot Landfill.

C. Harm to Competition as a

Consequence of the Acquisition

The Complaint alleges that the

transaction would have the following

effects, among others: that competition

generally in providing disposal at

commercial landfills to haulers of MSW

generated in Tarrant County would be

lessened substantially; that actual and

potential competition between Allied

and USA Waste in providing disposal at

commercial landfills to haulers of MSW

generated in Tarrant County will be

eliminated; and that competition for the

hauling of MSW generated in Tarrant

County may be substantially lessened.

Should Allied acquire the Crow

Landfill, there will be only three landfill

operators in the relevant market. The

elimination of one of such a small

number of significant competitors will

significantly increase the likelihood that

consumers will face higher prices and

poor quality service for the disposal of

MSW generated in Tarrant County.

Allied and USA Waste compete with

each other and with other companies to

provide MSW disposal services in the

greater Tarrant County area. That

competition has resulted in lower waste

disposal prices to haulers, which in turn

has permitted those haulers to compete

more effectively for business in Tarrant

County. The elimination of competition

resulting from the proposed acquisition

of the Crow Landfill by Allied will

likely result in price increases for the

disposal of MSW generated in Tarrant

County.

Using a measure of market

concentration called the HerfindahlHirschman Index (‘‘HHI’’), which is

defined and explained in Appendix A,

the post-acquisition HHI, based on the

amount of waste from Tarrant County

disposed of in 1996 at the five landfills

in the relevant geographic market,

would exceed 3500, with an increase in

the HHI of over 400. This number is

likely understated because the capacity

limitations on the Camelot Landfill limit
Federal Register / Vol. 62, No. 160 / Tuesday, August 19, 1997 / Notices 44145

its ability to provide a competitive

constraint. Thus, an acquisition by

Allied of the Crow Landfill would

substantially increase concentration in

the market.

Obtaining regulatory approval for

either a new landfill or the expansion of

an existing landfill in the greater Tarrant

County area is a costly and time

consuming process that can take several

years. Entry by a new landfill or through

the expansion of an existing one would

not be timely, likely or sufficient to

prevent harm to competition.

Allied is also engaged in the

collection and hauling of waste in the

relevant geographic market. Allied and

WMI are the dominant haulers in the

relevant geographic market and account

for roughly 80% of the hauling by

private firms in Tarrant County. Postacquisition, Allied would have an

increased incentive to raise disposal

prices to rival haulers in Tarrant

County, to create a substantial barrier

for entry to new haulers, or selectively

to raise prices to punish or impede

independent haulers who attempt to

compete with it in Tarrant County.

III. Explanation of the Proposed Final

Judgment

The provisions of the proposed Final

Judgment are designed to eliminate the

anticompetitive effects of the

acquisition of the Crow Landfill by

Allied from USA Waste.

The proposed Final Judgment requires

the Airspace Assets to be divested

within one hundred twenty (120) days

from the filing of the complaint, or

within five (5) days after notice of the

entry of the Final Judgment. The

Airspace Assets will be divested to a

purchaser, or purchasers, who

demonstrate to the sole satisfaction of

the United States (after consultation

with the State of Texas) that the assets

will be used as part of an ongoing

business engaged in solid waste

disposal. If allied fails to sell the

Airspace Assets, a trustee will be

appointed. The Final Judgment provides

that Allied will pay all costs and

expenses of the trustee. The trustee’s

commission will be structured so as to

provide an incentive for the trustee

based on the price obtained and the

speed with which divestiture is

accomplished. After his or her

appointment becomes effective, the

trustee will file monthly reports with

the parties and the Court, setting forth

the trustee’s efforts to accomplish

divestiture. If the trustee has not

accomplished the divestiture within six

months of its appointment, the trustee

and the parties 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.

The relief sought in the Complaint has

been tailored to insure that it will

protect consumers of hauling services

and MSW disposal services at

commercial landfills from the higher

prices and poorer quality service that

might otherwise result from the

acquisition.

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

consented that a 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 of a Final

Judgment upon the Court’s

determination that the proposed Final

Judgment is in the public interest. The

APPA provides a period of at least 60

days preceding the effective date of the

proposed Final Judgment within which

any person may submit to the United

States written comments regarding the

proposed Final Judgment. Any person

who wishes to comment should do so

within sixty (60) days of the date of

publication of this Competitive Impact

Statement in the Federal Register. The

United States will evaluate and respond

to the comments. All comments will be

given due consideration by the

Department of Justice, which remains

free to withdraw its consent to the

proposed Judgment at any time prior to

entry. 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: J. Robert Kramer II, Chief,

Litigation II Section, Antitrust Division,

United States Department of Justice,

1401 H Street, 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 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 Allied. The United

States could have brought suit and

sought preliminary and permanent

injunctions against Allied’s acquisition.

The United States is satisfied, however,

that the divestiture of the described

assets and the other terms specified in

Part I and in the proposed Final

Judgment will encourage viable MSW

disposal competitors in the greater

Tarrant County area. The United States

is satisfied that the proposed relief will

prevent the acquisition from having

anticompetitive effects in this market.

The divestiture of Airspace Assets

Space and the other proposed terms will

restore the market to a structure that

existed prior to the acquisition and will

preserve the existence of independent

hauling competitors in the area.

VII. Standard of Review Under the

APPA for Proposed Final Judgment

The APPA requires that proposed

consent judgments in antitrust cases

brought by the United States be subject

to a sixty-day comment period, after

which the Court shall determine

whether entry of the proposed Final

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

making that determination, the Court

may consider—

(1) The competitive impact of such

judgment, including termination of alleged

violations, provisions for enforcement and

modification, duration or relief sought,

anticipated effects of alternative remedies

actually considered, and any other

considerations bearing upon the adequacy of

such judgment;

(2) The impact of entry of such judgment

upon the public generally and individuals

alleging specific injury from the violations

set forth in the complaint including

consideration of the public benefit, if any, to

be derived from a determination of the issues

at trial.

15 U.S.C. § 16(e) (emphasis added). As

the Court of Appeals for the District of

Columbia Circuit recently held, the

APPA permits a Court to consider,

among other things, the relationship

between the remedy secured and the

specific allegations set forth in the

government’s complaint, whether the
44146 Federal Register / Vol. 62, No. 160 / Tuesday, August 19, 1997 / Notices

1 119 Cong. Rec. 24598 (1973). See, United States

v. Gillette Co., 406 F. Supp. 713, 715 (D.Mass.1975).

A ‘‘public interest’’ determination can be made

properly on the basis of the Competitive Impact

Statement and Response to Comments filed

pursuant to the APPA. Although the APPA

authorizes the use of additional procedures, 15

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

court need not invoke any of them unless it believes

that the comments have raised significant issues

and that further proceedings would aid the court in

resolving those issues. See, H.R. 93–1463, 93rd

Cong. 2d Sess. 8–9, reprinted in (1974) U.S. Code

Cong. & Ad. News 6535, 6538.

2United States v. Bechtel, 648 F.2d at 666

(citations omitted) (emphasis added); see United

States v. BNS, Inc., 858 F.2d at 463; United States

v. National Broadcasting Co., 449 F. Supp. 1127,

1143 (C.D. Cal. 1978); United States v. Gillette Co.,

406 F. Supp. at 716. See also United States v.

American Cyanamid Co., 719 F.2d at 565.

3United States v. American Tel. and Tel. Co., 552

F. Supp. 131, 150 (D.D.C. 1982), aff’d sub nom.

Maryland v. United States, 460 U.S. 1001 (1983)

quoting United States v. Gillette Co., supra, 406 F.

Supp. at 716; United States v. Alcan Aluminum,

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

decree is sufficiently clear, whether

enforcement mechanisms are sufficient,

and whether the decree may positively

harm third parties. See United States v.

Microsoft, 56 F.3d 1448 (D.C. Cir. 1995).

In conducting this inquiry, ‘‘the Court

is nowhere compelled to go to trial or

to enage in extended proceedings which

might have the effect of vitiating the

benefits of prompt and less costly

settlement through the consent decree

process.’’ 1 Rather,

absent a showing of corrupt failure of the

government to discharge its duty, the Court,

in making its public interest finding, should

. . . carefully consider the explanations of

the government in the competitive impact

statement and its responses to comments in

order to determine whether those

explanations are reasonable under the

circumstances.

United States v. Mid-America

Dairymen, Inc., 1977–1 Trade Cas.

¶ 61,508, at 71,980 (W.D. Mo. 1977).

Accordingly, 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) quoting United States v.

Bechtel Corp., 648 F.2d 660, 666 (9th

Cir.), cert. denied, 454 U.S. 1083 (1981);

see also, Microsoft, 56 F.3d 1448 (D.C.

Cir.1995). Precedent requires that

the balancing of competing social and

political interests affected by a proposed

antitrust consent decree must be left, in the

first instance, to the discretion of the

Attorney General. The court’s role in

protecting the public interest is one of

insuring that the government has not

breached its duty to the public in consenting

to the decree. The court is required to

determine not whether a particular decree is

the one that will best serve society, but

whether the settlement is ‘‘within the reaches

of the public interest.’’ More elaborate

requirements might undermine the

effectiveness of antitrust enforcement by

consent decree.2

The proposed Final Judgment,

therefore, should not be reviewed under

a standard of whether it is certain to

eliminate every anticompetitive effect of

a particular practice or whether it

mandates certainty of free competition

in the future. Court approval of a final

judgment requires a standard more

flexible and less strict than the standard

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.’

(citation omitted).’’ 3

VIII. Determinative Documents

There are no determinative materials

or documents within the meaning of the

APPA that were considered by the

United States in formulating the

proposed Final Judgment.

Respectfully submitted,

For Plaintiff United States of America:

J. Robert Kramer II,

PA Bar #23963.

Willie L. Hudgins,

DC Bar #37127.

Attorneys, U.S. Department of Justice,

Antitrust Division

David R. Bickel,

DC Bar #393409.

Michael K. Hammaker,

DC Bar #233684.

Attorneys, U.S. Department of Justice,

Antitrust Division, 1401 H St., N.W., Suite

3000, Washington, D.C. 20530, 202–307–

0924, 202–307–6283 (Facsimile)

Paul E. Coggins,

United States Attorney.

for

Marc. W. Barta,

TX Bar #01838200, Assistant U.S. Attorney,

Northern District of Texas, 801 Cherry Street,

Ste. 1700, Fort Worth, TX 76102–6897, 817–

978–3291, 817–978–6351 (Facsimile).

Dated: July 29, 1997.

Certification of Service

I hereby certify that a copy of the

foregoing has been served upon the

attorneys for USA Waste Service, Inc.,

the attorneys for Allied Waste

Industries, Inc, and the Office of the

Attorney General of the State of Texas,

by placing a copy in the U.S. Mail,

directed to each of the above-named

parties at the addresses give below, this

29th day of July, 1997.

USA Waste Services, Inc., c/o James R.

Weiss, Preston, Gates, Suite 500, 1735

New York Ave., NW., Washington, DC

20006

USA Waste Services, Inc., c/o James D.

McCarthy, Hughes & Luce, 1717 Main

Street, Suite 2800, Dallas, TX 75201

Allied Waste Industries, Inc., c/o Tom

D. Smith, Jones, Day, Reavis & Pogue,

Metropolitan Square, 1450 G Street,

NW., Washington, DC 20005–2088

Allied Waste Industries, Inc., c/o

Thomas R. Jackson, Jones, Day, Reavis

& Pogue, 2300 Trammel Crow Center,

2001 Ross Avenue, Dallas, TX 75202–

2598

State of Texas: Amy Krasner, Assistant

Attorney General, Antitrust Section,

Office of the Attorney General of

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

78711–2548

David R. Bickel,

Attorney, U.S. Department of Justice,

Antitrust Division, 1401 H Street, N.W., Suite

3000, Washington, D.C. 20530, (202) 307–

0924, (202) 307–6283 (Facsimile).

[FR Doc. 97–21855 Filed 8–18–97; 8:45 am]

BILLING CODE 4410–11–M

DEPARTMENT OF JUSTICE

Immigration and Naturalization Service

[INS No. 1851–97]

Change in Production of the Form I–

551, Alien Registration Receipt Card

AGENCY: Immigration and Naturalization

Service, Justice.

ACTION: Notice.

SUMMARY: In September 1997, the

Immigration and Naturalization Service

(INS or Service) will produce the Form

I–551, Alien Registration Receipt Card

(ARC) using an Integrated Card

Production System (ICPS). At that time,

the Service will transfer production of

the ARC from the Immigration Card

Facility (ICF) to the ICPS located at INS

service centers. These changes will

increase efficiency in producing the

ARCs, allow the Service to be more

responsive to inquires from applicants,

their representatives, and benefitgranting agencies, and will enhance the

Service’s ability to produce a more

secure ARC.

EFFECTIVE DATE: September 1, 1997.

FOR FURTHER INFORMATION CONTACT:

Geoff Verderosa, Immigration and

Naturalization Service, Benefits

Division, Residence and Status Services,

425 I Street, NW., Room 3214,

Washington, DC 20536, Telephone 202–

514–3156.