__________________________________________ 

 

 

 

 

 

 

06 27 2012 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

) 

In the Matter of ) PUBLIC 

) 

McWANE, INC., ) DOCKET NO. 9351 

a corporation. ) 

__________________________________________) 

COMPLAINT COUNSEL’S MOTION TO COMPEL RESPONDENT 

MCWANE, INC.’S RESPONSES TO REQUESTS FOR ADMISSION 

Pursuant to Rule 3.38(a) of the Federal Trade Commission’s Rules of Practice for 

Adjudicative Proceedings, Complaint Counsel respectfully moves the Court to compel 

Respondent to provide complete and responsive answers to Request Nos. 1-12, 15, 17, 

18, 22, 33, 37, 38, 40, 42-43, and 48-50 of Complaint Counsel’s Requests for Admissions 

to Respondent McWane, Inc. (1-50), dated May 22, 2012 (“RFAs”), and to produce any 

evidence in its possession relating to its denial of RFAs 37 and 48-50. Respondent 

McWane, Inc.’s Objections and Responses to Complaint Counsel’s Requests for 

Admission, dated June 8, 2012 (“Responses”) are evasive and nonresponsive, and contain 

inappropriate and inapplicable objections. 

Complaint Counsel has met and conferred with counsel for Respondent regarding 

this motion, but counsel could not reach a resolution. See attached Meet and Confer 

Statement. 

I. Background 

Complaint Counsel’s RFAs address preliminary matters – such as market 

structure and characteristics, market participants, and certain well established business 

practices of Respondent and its competitors – that may need to be proven by Complaint 
PUBLIC

Counsel at trial in the absence of an admission. Holleran Decl., Exh. A (RFAs). 

Complaint Counsel’s RFAs are plainly worded, discrete, and direct statements on 

uncontroversial matters as to which Complaint Counsel is aware of no record evidence to 

the contrary. 

As such, the RFAs fit squarely within the long understood salutary purpose of this 

discovery device – to “expedite the trial and to relieve the parties of the costs of proving 

facts that will not be disputed at the trial, and the truth of which can be easily ascertained 

by reasonable inquiry.” In Re General Motors Corp., 1977 FTC Lexis 293, at *3 (1977). 

However, Respondent repeatedly failed to answer the specific question asked by an RFA, 

failed to conduct a reasonable investigation before asserting that it could not answer 

multiple RFAs, and for others, failed to provide responsive discovery in response to 

Complaint Counsel’s Requests for the Production of Documents to support its denials. 

See Holleran Decl., Exh. B (Responses). 

II. Argument 

Rule 3.32(b) governs RFA responses, and requires that where an RFA is not 

admitted, 

[any] denial shall fairly meet the substance of the requested 

admission, and when good faith requires that a party 

qualify its answer or deny only a part of the matter of 

which an admission is requested, the party shall specify so 

much of it as is true and qualify or deny the remainder. An 

answering party may not give lack of information or 

knowledge as a reason for failure to admit or deny unless 

the party states that it has made reasonable inquiry and that 

the information known to or readily obtainable by the party 

is insufficient to enable it to admit or deny. 

16 C.F.R. 3.32 (b). The Respondent may not reply “in an ambiguous or equivocal manner 

which evades the central point of the requested admission.” General Motors, 1977 FTC 

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Lexis 293, at *6. Rather, a response must be “clear, specific, direct and straightforward.” 

In Re Sterling Drug Inc., 1976 FTC Lexis 272, at *2-*3 (1976). 

Respondent has failed to comply with these requirements, providing 

nonresponsive and evasive answers and interposing improper objections. Part A below 

discusses the inappropriate objections raised by Respondent. Part B discusses certain 

Responses that fail to address the specific matter presented by the RFA. Part C discusses 

Responses that implausibly assert Respondent’s inability to admit or deny an RFA, 

despite clear indications that Respondent has access to the necessary information and has 

simply failed to conduct a reasonable inquiry into the matter. Finally, Part D discusses 

certain denials contained in the Responses that are unsupported by discovery produced to 

date. 

A.	 Respondent Raises Improper Objections That Do Not Relieve It of the 

Obligation to Provide Good Faith Responses (RFA Nos. 1-11, 15, 17, 

18, 22, 33, 37, and 42-43) 

As a preliminary matter, Respondent repeatedly raises various objections that an 

RFA either (1) requires speculation, (2) seeks information beyond Respondent’s custody 

and control, (3) is vague and ambiguous, (4) prematurely seeks expert opinion, or (5) 

seeks an improper legal conclusion. These objections are misplaced and do not justify 

Respondent’s failure to provide adequate Responses. 

The first two of these categories are not proper objections to a request for 

admission – if Respondent lacks sufficient information to admit or deny a matter, the 

proper response is to make a reasonable inquiry and then set forth detailed reasons why 

Respondent cannot truthfully admit or deny. Rule 3.32(b). 

Respondent’s vagueness objections are improper and evasive. The RFAs are 

plainly worded in language that is commonly used in Respondent’s business, and use 

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clearly defined terms. In any event, a vagueness objection does not relieve Respondent 

of the obligation to make a good faith effort to respond – if necessary, Respondent must 

qualify its admission or denial to explain how any supposedly vague term is being 

interpreted. See General Motors, 1977 FTC LEXIS 293, at *6-7 (“[R]eservations due to 

slight inaccuracies or for any other reason should be so stated as qualifications to a 

general admission.”); Vlasich v. Fishback, 2009 U.S. Dist. LEXIS 43098, at 12-13 (E.D. 

Cal. May 11, 2009) (in response to vague request, party should “frame an intelligent 

reply using wording clarifying what [it] believes is meant.”). 

For example, the Response to RFA 18 raises a vagueness objection on the ground 

that it is “unclear whether [the term used] is referring to a percentage of total jobs or the 

amount of discount on each job.” This “vagueness” may be remedied by simply 

specifying which meaning Respondent is adopting, and then proceeding to answer the 

RFA. Similarly, rather than invoking vagueness and offering no substantive response to 

RFAs 42 and 43, Respondent should have provided good faith Responses, qualified or 

otherwise, that fairly address the RFAs. 

Respondent also improperly invokes “expert opinion” and “legal conclusion” 

objections to avoid answering RFAs. For example, it provides no substantive answer to 

RFA 2, and instead asserts an objection that the RFA, which concerns the “Buy 

American” requirement of the American Recovery and Reinvestment Act (ARRA), seeks 

legal conclusions and premature expert opinion. Such objections should be overruled. 

The application of law to fact is an appropriate subject for a request for admission. See 

Rule 3.32(a) (RFA may relate to “application of law to fact”). For example, in Heartland 

Surgical Specialty Hosp., LLC v. Midwest Div., Inc., 2007 U.S. Dist. LEXIS 80182 (D. 

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Kan. Oct. 29, 2007), defendant requested that plaintiff admit that “no state law required 

an identified Defendant to contract with [the plaintiff].” The request was upheld because 

it “require[d] no more than the application of law to the facts of the case.” Id. at *17-18; 

see also Argus & Assocs. v. Prof’l Benefits Servs., 2008 U.S. Dist. LEXIS 105753, at *8­

9 (E.D. Mich. Dec. 31, 2008) (providing other examples of proper RFAs involving 

application of law to fact). Like the application of state law to the parties in Heartland, 

the application of the ARRA’s “Buy American” requirement to the businesses of 

Respondent and its competitors is a permissible RFA topic. 

Respondent’s objections that RFAs 1, 2, 4, 7, 15, and 17, which relate to the 

ARRA, prematurely seek expert opinion should also be overruled. Respondent has 

identified its only expert, an economist, not an expert on the ARRA. Respondent’s 

counsel conceded during the meet and confer that the matter would not constitute an 

expert opinion, but rather might be included in the industry background section of an 

expert report. Whether or not these facts are addressed in the background of an experts 

report is irrelevant. The RFAs relate to basic facts impacting Respondent’s business that 

are well known to Respondent and its employees and will not be the subject of expert 

“opinion.” These objections, as well as Respondent’s similar objection to RFA 22, 

should be overruled. 

B.	 Respondent Provides Nonresponsive and Evasive Responses (RFA 

Nos. 1, 3-6, 8, 10-12) 

Many of Respondent’s RFA Responses are nonresponsive by eluding the plain 

language of the RFAs. In General Motors, the Administrative Law Judge rejected a 

number of responses that – like Respondent’s here – evaded essential elements of the 

request. For example, complaint counsel in General Motors sought to have GM admit 

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that it “refuses to sell” certain products to certain parties, and GM replied in pertinent part 

that it “does not sell” the products to such parties. General Motors, 1977 FTC Lexis 293, 

at *10-11. The court determined that the response was inadequate and required a new 

one, stating that “[t]his request goes to the question of whether GM refuses to sell certain 

products and the essential point of that request may not be evaded by responding to a 

question which was not asked.” Id. at *11; see also id. at *15-16, & 23 (requiring new 

answers in other instances where responses did not address essential parts of requests). 

As described below, Respondent in this case has repeatedly offered just such evasive 

Responses:1 

 RFA 1 asks Respondent to admit that “[a]ll ARRA Waterworks Projects are 

subject to a Buy American requirement.” The Response admits to “waivers 

and exemptions” to the ARRA’s Buy American requirement, but fails to 

directly admit or deny the essential substance of the original request. 

	 RFAs 3, 5, and 6, ask whether Respondent can Identify any relevant sales. 

Respondent improperly admits { 

} rather than responding to the RFAs, which are not so limited and 

which ask what sales Respondent is able to Identify, which are not limited to 

{ }. 

	 RFAs 4 and 11 ask Respondent to admit that it “is unaware” of certain 

statements or plans of others, and the Responses mistakenly suggest that these 

RFAs seek admission or denial of the existence (as opposed to Respondent’s 

awareness) of such statements or plans. 

1

 In addition to providing nonresponsive answers to the RFAs, Respondent also raises 

various objections that should be overruled for the reasons discussed, supra, in Part A. 

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 The Response to RFA 8 addresses { 

} rather than the matter requested – whether 

Respondent was competing for relevant sales after February 2010. 

 The Response to RFA 10 addresses { 

} not what the Request asked – whether 

Respondent and Star are the only current manufacturers of such products. 

 Finally, the Response to RFA 12 addresses { 

} rather than whether 

Respondent was at the relevant time the only manufacturer of such fittings. 

Each of the above Responses impermissibly “evades the central point” of the 

RFA, id. at *6, and Respondent should be compelled to respond in a manner that “fairly 

meet[s] the substance of the requested admission.” See Rule 3.32(b). 

C.	 Respondent Improperly Claims Lack of Information To Admit or 

Deny RFAs Without Having First Conducted a Reasonable 

Investigation (RFA Nos. 9, 18, 22, 33) 

Some Responses assert a lack of sufficient knowledge to admit or deny a matter, 

even though the discovery record – in some cases depositions of Respondent’s own 

employees – contains the information required to admit or deny the matter.2 In light of 

the information available to Respondent, it should be compelled to admit or deny the 

straightforward proposition set forth in each of these RFAs, or “set forth in detail the 

reasons why [it] cannot truthfully admit or deny the matter.” Rule 3.32(b) (emphasis 

added); see also Louis v. Martinez, 2011 U.S. Dist. LEXIS 51744 (N.D. W. Va. May 13, 

2011) (RFA response not necessarily adequate “merely because it includes a statement 

2

 Indeed, in some cases (e.g. the Responses to RFAs 38 and 40) Respondent does not 

even claim to have conducted a reasonable inquiry. 

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that the party has made reasonable inquiry and that the information necessary to admit or 

deny the matter is not readily obtainable by him.”); Asea, Inc. v. Southern Pacific Transp. 

Co., 669 F.2d 1242, 1247 (9th Cir. 1981) (response that fails to admit or deny is 

inadequate if party “has not, in fact, made ‘reasonable inquiry,’” or if sufficient 

information is “‘readily obtainable’”). 

For example, the Response to RFA 9 contains the evasive and implausible 

suggestion that Respondent does not know what projects it is competing for today. 

Respondent provides no detailed explanation for its inability to admit or deny this matter, 

and { 

} 

Likewise, in its Response to RFA 18, Respondent implausibly states that it cannot 

ascertain its own historical pricing practices. As to RFA 22, Respondent claims a lack of 

sufficient information to admit or deny an assertion about the costs of Relevant Products, 

even though { 

} Finally, in responding to RFA 33, Respondent implausibly 

suggests that it does not know and cannot ascertain the basic business needs of its 

customers. 

Respondent should be compelled to admit or deny each of these matters, or 

provide a more detailed explanation of its investigation and its inability to do so. 

D.	 Respondent’s Denials Are Unsupported by the Record (RFA Nos. 37, 

48-50) 

Finally, in its Reponses to RFAs 48-50, Respondent has denied certain matters 

relating to the way it uses data obtained from the DIFRA Information Exchange. { 

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} Any evidence 

supporting the denial of these RFAs should have been produced during discovery, see 

Holleran Decl., Exh. D at 2 ¶¶ 6, 8 (Complaint Counsel’s First Requests for Production of 

Documents), and Respondent should therefore be compelled to produce such documents 

immediately. 

Relatedly, Complaint Counsel limited the scope of its discovery based on 

representations by counsel for Respondent, A. Stargard, that Respondent was not 

asserting a free-riding justification for its Exclusive Dealing Arrangements. In its 

Response to RFA 37, Respondent now denies that it is not asserting a free-riding 

justification. Accordingly, Respondent should be compelled to produce relevant 

discovery. 

III. Conclusion 

As discussed above, Respondent’s RFA Responses are inadequate. Accordingly, 

Complaint Counsel respectfully moves this Court for an order compelling Respondent to 

provide adequate and complete responses to RFAs 1-12, 15, 17, 18, 22, 33, 37, 38, 40, 

42-43, and 48-50, and to produce any evidence in its possession relating to its denial of 

RFAs 37 and 48-50. 

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Dated: June 27, 2012 Respectfully submitted, 

s/ Linda Hollera 

Edward Hassi, Esq. 

Linda Holleran, Esq. 

Joseph A. Baker, Esq. 

Thomas H. Brock, Esq. 

Michael J. Bloom, Esq. 

Jeanine K. Balbach, Esq. 

J. Alexander Ansaldo, Esq. 

Andrew K. Mann, Esq.

 Monica M. Castillo, Esq. 

Counsel Supporting the Complaint 

 Bureau of Competition

 Federal Trade Commission

 Washington, DC 20580 

 Telephone: (202) 326-2470 

 Facsimile: (202) 326-3496 

 Electronic Mail: ehassi@ftc.gov 

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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

PUBLIC

) 

In the Matter of ) 

) 

McWANE, INC., ) DOCKET NO. 9351 

a corporation. ) 

__________________________________________) 

PROPOSED ORDER 

On June 25, 2012, Complaint Counsel filed Complaint Counsel’s Motion to 

Compel Respondent McWane, Inc.’s Responses to Requests for Admission. Upon 

consideration of this motion, this Court grants Complaint Counsel’s motion. Respondent 

is ordered to answer Complaint Counsel’s Requests for Admissions Nos. 1-12, 15, 17, 18, 

22, 33, 37, 38, 40, 42-43, and 48-50, and to otherwise supplement discovery, in accord 

with this Court’s opinion. 

ORDERED: ___________________________ 

D. Michael Chappell 

Administrative Law Judge 

______________, 2012 
__________________________________________ 

 

 

 

 

 

 

 

 

 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

) 

In the Matter of ) PUBLIC 

) 

McWANE, INC., ) DOCKET NO. 9351 

a corporation. ) 

__________________________________________) 

COMPLAINT COUNSEL’S STATEMENT REGARDING MEET AND CONFER 

PURSUANT TO SCHEDULING ORDER 

Complaint Counsel has met and conferred with counsel for Respondent McWane, 

Inc., regarding Respondent McWane Inc.’s Responses and Objections to Complaint 

Counsel’s Requests for Admission (“Respondent’s Responses”). On or about June 20, 

2012, Complaint Counsel spoke with counsel for Respondent. Despite the good faith 

efforts of counsel, Complaint Counsel was unable to reach a resolution with respect to 

these RFAs, and we remain at an impasse related to the issues raised by the motion. 

 During initial meet and confer discussions regarding the scope of Complaint 

Counsel’s requests for production, counsel for Respondent, Andreas Stargard, stated that 

McWane was not asserting a free-riding justification for its exclusive dealing 

arrangements. Based on that representation, Complaint Counsel limited the scope of its 

document requests. 

Dated: June 25, 2012 Respectfully submitted, 

s/ Linda Holleran 

Linda Holleran, Esq. 

Counsel Supporting the Complaint 

 Bureau of Competition

 Federal Trade Commission

 Washington, DC 20580 
__________________________________________ 

 

 

 

 

 

 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

PUBLIC

) 

In the Matter of ) 

) 

McWANE, INC., ) DOCKET NO. 9351 

a corporation. ) 

__________________________________________) 

DECLARATION OF LINDA M. HOLLERAN 

Pursuant to 28 U.S.C. § 1746, I make the following statement: 

1.	 My name is Linda M. Holleran. I am making this statement in In the Matter of 

McWane, Inc., FTC Docket No. 9351. All statements in this Declaration are 

based on my personal knowledge as Attorney for the U.S. Federal Trade 

Commission, Bureau of Competition, or, if so-indicated, on information and 

belief. 

2.	 Attached as Exhibit A is a true and correct copy of Complaint Counsel’s Requests 

for Admissions to Respondent McWane, Inc. (1-50), dated May 22, 2012. 

3.	 Attached as Exhibit B is a true and correct copy of Respondent McWane, Inc.’s 

Objections and Responses to Complaint Counsel’s Requests for Admission, dated 

June 8, 2012. 

4.	 Attached as Exhibit C is a true and correct copy of excerpts of the Transcript of 

the May 9, 2012 deposition of Jerry Andrew Jansen in this matter. 

5.	 Attached as Exhibit D is a true and correct copy of Complaint Counsel’s First Set 

of Requests for Production of Documents to Respondent McWane, Inc. (Numbers 

1-23), dated February 21, 2012. 
 

 

 

 

PUBLIC

Pursuant to 28 U.S.C. § 1746, I declare, under the penalty of perjury, that the 

foregoing is true and correct to the best of my knowledge, information, and belief. 

Dated: June 27, 2012 Respectfully submitted, 

s/ Linda Hollera 

Linda Holleran, Esq. 

Counsel Supporting the Complaint 

 Bureau of Competition

 Federal Trade Commission

 Washington, DC 20580 
 

 

 

 

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CERTIFICATE OF SERVICE 

I hereby certify that on June 27, 2012, I filed the foregoing document 

electronically using the FTC’s E-Filing System, which will send notification of such 

filing to: 

Donald S. Clark 

Secretary 

 Federal Trade Commission 

 600 Pennsylvania Ave., NW, Rm. H-113 

 Washington, DC 20580 

 I also certify that I delivered via electronic mail and hand delivery a copy of the 

foregoing document to: 

The Honorable D. Michael Chappell 

 Administrative Law Judge 

 Federal Trade Commission 

 600 Pennsylvania Ave., NW, Rm. H-110 

 Washington, DC 20580 

 I further certify that I delivered via electronic mail a copy of the foregoing 

document to: 

Joseph A. Ostoyich 

William C. Lavery 

Baker Botts L.L.P. 

The Warner 

1299 Pennsylvania Ave., NW 

Washington, DC 20004 

(202) 639-7700 

joseph.ostoyich@bakerbotts.com 

william.lavery@bakerbotts.com 

J. Alan Truitt 

Thomas W. Thagard III 

Maynard Cooper and Gale PC 

1901 Sixth Avenue North 

2400 Regions Harbert Plaza 

Birmingham, AL 35203 

(205) 254-1000 

atruitt@maynardcooper.com 

tthagard@maynardcooper.com 

Counsel for Respondent McWane, Inc. 
 

 

PUBLIC

CERTIFICATE FOR ELECTRONIC FILING 

 I certify that the electronic copy sent to the Secretary of the Commission is a true 

and correct copy of the paper original and that I possess a paper original of the signed 

document that is available for review by the parties and the adjudicator. 

June 27, 2012 By: s/ Linda Holleran 

Attorney 
PUBLIC

Exhibit A 
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UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

OFFICE OF ADMINISTRATIVE LAW JUDGES
 

) PUBLIC 

In the Matter of ) 

) 

McWANE, INC., ) DOCKET NO. 9351 

a corporation, and )
 

) 

STAR PIPE PRODUCTS, LTD., )

 a limited partnership. )
 

__________________________________________) 

COMPLAINT COUNSEL’S REQUESTS FOR ADMISSIONS 

TO RESPONDENT MCWANE, INC. (1-50) 

Pursuant to the Federal Trade Commission’s Rules of Practice, 16 C.F.R. § 3.32, and the 

Definitions and Instructions set forth below, Complaint Counsel hereby requests that Respondent 

McWane, Inc. admit within ten (10) days the following: 

1.	 All ARRA Waterworks Projects are subject to a Buy American requirement. 

2.	 The Environmental Protection Agency (“EPA”) must grant or approve any and all 

waivers to the Buy American requirement of ARRA for any ARRA Waterworks Project. 

3.	 Respondent cannot Identify any sale of Imported Relevant Product for use in an ARRA 

Waterworks Projects pursuant to a Public Interest Waiver other than the three Public 

Interest Waivers set forth in Exhibit A. 

4.	 Respondent is unaware of any statement or opinion by the EPA that Imported Relevant 

Product is an “incidental component,” as described in 74 Federal Register No. 152 

(Monday, August 10, 2009) 39959-60. 

5.	 Respondent cannot Identify any sale of any Imported Relevant Product for use in any 

ARRA Waterworks Projects pursuant to the waiver for de minimus incidental 

components as described in 74 Federal Register No. 152 (Monday, August 10, 2009) 

39959-60. 

6.	 Respondent cannot Identify any sale of any Imported Relevant Product that was 

Manufactured in Mexico or Canada for use in any ARRA Waterworks Project. 

7.	 The ARRA increased the number of Waterworks Projects being built, repaired or
 

otherwise commissioned in the United States.
 

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8.	 Respondent competed for sales of Domestic Relevant Product for use in ARRA 

Waterworks Projects after February 2010. 

9.	 Respondent continues to compete for sales of Domestic Relevant Product for use in 

ARRA Waterworks Projects today. 

10. The only Persons that currently Manufacture a Full-Line of Domestic Relevant Product 

that is 24” in diameter or smaller are Respondent and Star. 

11. Respondent is unaware of any Person that has Plans to begin Manufacturing Domestic 

Relevant Product that is 24” in diameter or smaller within the next two years. 

12. Prior to Star’s entry in 2009 when it began Manufacturing Domestic Relevant Product, 

Respondent was the only Manufacturer of a Full-Line of Domestic Relevant Product that 

was 24” in diameter or smaller since at least 2007. 

13. At least 90% of all Relevant Products sold in the United States, as measured by revenue, 

are 24” in diameter or smaller. 

14. Any Relevant Product that meets AWWA standards and a particular specification is 

functionally interchangeable with any other Relevant Product that meets the same 

standards and specifications. 

15. Imported Relevant Products are not a substitute for Domestic Relevant Products when the 

specification for a Waterworks Project has a Buy American requirement. 

16. Certain municipalities, counties, and states in the United States have regulations, codes or 

statutes that require publicly funded Waterworks Projects to be built or repaired with 

Domestic Relevant Products. 

17. When a regulation, code or statute requires Domestic Relevant Products be used for 

publicly funded Waterworks Projects, Imported Relevant Products generally cannot be 

used for those projects. 

18. Respondent has historically offered less Job Pricing on its Domestic Relevant Product 

than its Imported Relevant Product. 

19. Respondent has lowered its price on sales of Domestic Relevant Product in response to 

competition from Star’s Domestic Relevant Product. 

20. Respondent’s share of sales of Domestic Relevant Products has been greater than 80% 

since at least 2007. 

21. Demand for the Relevant Product is Inelastic. 

22. The Relevant Product represents five percent (5%) or less of the cost of a typical 

Waterworks Project. 

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23. Respondent does not consider the price of any other type of fittings when it sets the price 

of the Relevant Product. 

24. No other product constrains the price of the Relevant Product. 

25. Respondent sells all, or nearly all, of its Relevant Product to distributors. 

26. Distributors are critical to the success of Respondent. 

27. Distributors sell Relevant Products in local geographic markets. 

28. Distributors typically sell to end users all of the products needed for a specific 

Waterworks Project (e.g., pipe, hydrants, valves, fittings, etc.). 

29. To begin selling Relevant Product in the United States, a new entrant must secure 

Manufacturing through one or more foundries. 

30. To begin selling Relevant Product in the United States, a new entrant must develop, 

purchase or otherwise obtain forms for casting numerous fittings in different shapes and 

sizes. 

31. To sell Relevant Product Successfully in the United States, a new entrant must develop a 

distribution network with a sufficient number of distributors that allows the entrant to sell 

a minimum amount of Relevant Product to be efficient. 

32. To sell Relevant Product Successfully in the United States, a new entrant must develop a 

reputation for quality and service with distributors and end users. 

33. Distributors need access to a Full-Line of Domestic Relevant Product that can be 

delivered in a timely fashion, i.e., generally less than 12 weeks. 

34. In 2009, Respondent perceived that Sigma had an incentive to begin Manufacturing 

Domestic Relevant Product. 

35. One factor that Respondent considered when deciding to enter into the Master 

Distribution Agreement (“MDA”) with Sigma was the likelihood of Sigma 

Manufacturing its own Domestic Relevant Product. 

36. On or about November 23, 2009, Respondent put all Hajoca orders for Domestic 

Relevant Product on hold. 

37. Respondent does not assert a free-riding justification for its Exclusive Dealing 

Arrangements. 

38. The MDA between Respondent and Sigma did not lower the price of Domestic Relevant 

Product. 

39. The MDA between Respondent and Sigma did not increase the output of Domestic 

Relevant Product. 

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40. Sigma, Star and Respondent together account for 90% or more of the sales in Imported 

Relevant Product in the United States. 

41. In the first half of 2008, the costs of the raw materials used to Manufacture Imported 

Relevant Product were increasing faster than the costs of the raw materials used to 

Manufacture Domestic Relevant Product. 

42. In 2008, Respondent, Sigma and Star sold Imported Relevant Product pursuant to nearly 

identical list prices. 

43. In 2008, Respondent, Sigma and Star sold Imported Relevant Product pursuant to nearly 

identical multiplier maps. 

44. In January 2008, Respondent announced its intention to reduce or eliminate the Job 

Pricing it offered to customers. 

45. Job Pricing is a form of competition among or between SIGMA, Star and Respondent. 

46. Job Pricing reduces the stability of pricing of Relevant Product. 

47. Job Pricing reduces the transparency of pricing of Relevant Product. 

48. Respondent did not use data obtained from the DIFRA Information Exchange to manage 

its inventory. 

49. Respondent did not use data obtained from the DIFRA Information Exchange to manage 

its production schedules. 

50. Respondent did not use data obtained from the DIFRA Information Exchange to reduce 

its costs. 

DEFINITIONS 

1.	 The terms “McWane,” “Company” or “Respondent” mean Respondent McWane, Inc., its 

directors, officers, trustees, employees, attorneys, agents, accountants, consultants, and 

representatives, its domestic and foreign parents, predecessors, divisions, subsidiaries, 

affiliates, partnerships and joint ventures, and the directors, officers, trustees, employees, 

attorneys, agents, consultants, and representatives of its domestic and foreign parents, 

predecessors, divisions, subsidiaries, affiliates, and partnerships and joint ventures. 

2.	 The terms “Agreement” or “Contract” mean any oral, written, or implied contract, 

arrangement, understanding, or Plan, whether formal or informal, between two or more 

Persons, together with all modifications or amendments thereto. 

3.	 The term “ARRA Waterworks Project” means any Waterworks Project that was funded, 

in whole or in part, by the American Recovery and Reinvestment Act of 2009. 

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4.	 “Buy American requirement” means any provision in a specification, contract, code, 

regulation, or statute that requires that the Relevant Product used in a waterworks project 

be Manufactured in the United States. 

5.	 The term “Communication” means any transmittal, exchange, transfer, or dissemination 

of information, regardless of the means by which it is accomplished, and includes all 

communications, whether written or oral, and all discussions, meetings, telephone 

communications, or email contacts. 

6.	 The term “Competitor” means each and every Person actually or potentially engaged in 

the Manufacture or importation of any Relevant Product for sale or resale within the 

United States, including without limitation, McWane, Star, Sigma, and Serampore 

Industries Private, Ltd. 

7.	 The term “Containing” means containing, describing, or interpreting in whole or in part. 

8.	 The term “DIFRA” means the Ductile Iron Fittings Research Association, its directors, 

officers, trustees, employees, attorneys, agents, accountants, consultants, and 

representatives. 

9.	 The term “DIFRA Information Exchange” means the submission, aggregation, 

transmittal and receipt of sales information Relating to any Relevant Products through 

DIFRA. 

10.	 The terms “Discuss” or “Discussing” mean in whole or in part constituting, Containing, 

describing, analyzing, explaining, or addressing the designated subject matter, regardless 

of the length of the treatment or detail of analysis of the subject matter, but not merely 

referring to the designated subject matter without elaboration. A document that 

“Discusses” another document includes the other document itself. 

11.	 The term “Domestic Relevant Product” means any ductile iron pipe fitting, of any size, 

shape or configuration, as well as accompanying accessories, lining and coating, that was 

Manufactured or otherwise produced within the United States. 

12.	 The term “Effect” means the actual, intended, forecast, desired, predicted, or 

contemplated consequence or result of an action or Plan. 

13.	 The term “Exclusive Dealing Arrangement” includes any proposed or actual Agreement, 

arrangement, policy, program, or practice of McWane or Sigma (i) that requires any 

customer to refrain from purchasing or to limit its purchases of any Relevant Products of 

any Competitor, (ii) that conditions the provision of any benefit to any customer on 

refraining from or limiting its purchases of any Relevant Products of any Competitor, 

(iii) that threatens the imposition of any adverse consequences for any customer that 

purchases or does not limit its purchases of any Relevant Products from any Competitor, 

or (iv) that extends a benefit to a customer for purchasing a certain dollar amount, 

quantity, or percentage of any Relevant Product from McWane or Sigma. 

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PUBLIC

14.	 The term “Full-Line of Domestic Relevant Product” refers to, at a minimum, the most 

commonly sold Domestic Relevant Products that represent at least 80% of all Domestic 

Relevant Products sold in the United States, commonly referred to as ‘A’ items. 

15.	 The term “Hajoca” means Hajoca Corporation, its directors, officers, trustees, employees, 

attorneys, agents, accountants, consultants, and representatives, its domestic and foreign 

parents, predecessors, divisions, subsidiaries, affiliates, partnerships and joint ventures, 

and the directors, officers, trustees, employees, attorneys, agents, consultants, and 

representatives of its domestic and foreign parents, predecessors, divisions, subsidiaries, 

affiliates, and partnerships and joint ventures. 

16.	 The term “Identify” means to state: 

a.	 in the case of a natural person, his or her name, employer, business address and 

telephone number, title or position, and dates the person held that position(s); 

b.	 in the case of a Person other than a natural person, its name and principal address, 

telephone number, and name of a contact person; 

c.	 in the case of a document, the title of the document, the author, the title or 

position of the author, the addressee, each recipient, the type of document, the 

subject matter, the date of preparation, and its number of pages; 

d.	 in the case of an event, the time and date of the event, the participants, and a 

description of the substance of the event; and 

e.	 in the case of a communication, the date of the communication, the parties to the 

communication, the method of communication (oral, written, etc.), and a 

description of the substance of the information exchanged during the 

communication. 

17.	 The term “Imported Relevant Product” means any ductile iron pipe fitting, of any size, 

shape or configuration, as well as accompanying accessories, lining and coating, that was 

Manufactured or otherwise produced outside of the United States. 

18.	 The term “Ineleastic” means that the demand for a product does not change significantly 

in response to an increase or decrease in price. 

19.	 The term “Job Pricing” means any Discounts that apply to a single, specified job or 

Waterworks Project. 

20.	 The terms “Manufacture” or “Manufacturer” means a Person’s use of their own 

productive assets as well as the productive assets of any other Person, including 

contracting for the use of those assets. 

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PUBLIC

21.	 The term “Person” includes the Company, and means any natural person, corporate 

entity, partnership, association, joint venture, governmental entity, trust, or any other 

organization or entity engaged in commerce. 

22.	 The terms “Plan” or “Plans” mean tentative and preliminary proposals, strategies, 

recommendations, analyses, reports, or considerations, whether or not precisely 

formulated, finalized, authorized, or adopted. 

23.	 The term “Public Interest Waiver” means, in the context of a waiver of the Buy American 

requirement of ARRA by the EPA, that: i) a Domestic Relevant Product was not 

produced in the United States in sufficient and reasonably available quantities and of a 

satisfactory quality; ii) use of a Domestic Relevant Product would increase the cost of the 

overall project by more than 25 percent; or that iii) applying the Buy American 

requirement of ARRA would be inconsistent with the public interest. 

24.	 The terms “Relate” or “Relating to” mean in whole or in part Discussing, constituting, 

commenting, Containing, concerning, embodying, summarizing, reflecting, explaining, 

describing, analyzing, identifying, stating, referring to, dealing with, or in any way 

pertaining to.The term “Relevant Product” means both Domestic Relevant Products and 

Imported Relevant Products, and either of these individually. In response to a 

Specification calling for the production of Documents concerning the Relevant Products, 

produce Documents that contain the specified information for either or both of the 

Relevant Products, stated separately as applicable. 

25.	 The term “Sigma” means Sigma Corporation, its directors, officers, trustees, employees, 

attorneys, agents, accountants, consultants, and representatives, its domestic and foreign 

parents, predecessors, divisions, subsidiaries, affiliates, partnerships and joint ventures, 

and the directors, officers, trustees, employees, attorneys, agents, consultants, and 

representatives of its domestic and foreign parents, predecessors, divisions, subsidiaries, 

affiliates, and partnerships and joint ventures. 

26.	 The term “Star” means Star Pipe Products, Ltd., its directors, officers, trustees, 

employees, attorneys, agents, accountants, consultants, and representatives, its domestic 

and foreign parents, predecessors, divisions, subsidiaries, affiliates, partnerships and joint 

ventures, and the directors, officers, trustees, employees, attorneys, agents, consultants, 

and representatives of its domestic and foreign parents, predecessors, divisions, 

subsidiaries, affiliates, and partnerships and joint ventures. 

27.	 The term “Successfully” means that a Person sells more than than $1 million dollars of a 

Relevant Product and has the opportunity to increase its sales. 

28.	 The term “Waterworks Projects” means the construction or repair of a water distribution 

system that uses Relevant Product. 

-7-
PUBLIC

INSTRUCTIONS 

1.	 Provide separate and complete sworn written responses for each Request for Admission 

(“Request”). 

2.	 Your answers to any Request must include all information within your possession, 

custody, or control, including information reasonably available to you and your agents, 

attorneys, or representatives. You may not give lack of information or knowledge as a 

reason for failure to admit or deny unless you state that you have made reasonable 

inquiry and that the information known or readily obtainable by you is insufficient to 

enable you to admit or deny the matter. 

3.	 A Request will be deemed admitted unless, within ten days of service of this request, you 

serve a sworn written answer to the Request. 

4.	 Your answer should specifically admit or deny the Request or set forth in detail 

the reasons why you cannot truthfully admit or deny it after exercising due diligence to 

secure the information necessary to make a full and complete answer, including a 

description of all efforts you made to obtain the information necessary to answer the 

Request fully. 

5.	 If you object to a portion or an aspect of any Request, state the grounds for your 

objection with specificity and respond to the remainder of the Request. 

6.	 When good faith requires that you qualify your answer or deny only a part of the matter 

of which an admission is requested, specify so much of it as is true and qualify or deny 

the remainder. 

7.	 If you consider that a matter of which an admission has been requested presents a 

genuine issue for trial, you may not, on that ground alone, object to the request; instead, 

you must deny the matter or set forth reasons why you cannot admit or deny it. 

8.	 Answer each Request fully and completely based on the information and knowledge 

currently available to you, regardless of whether you intend to supplement your response 

upon the completion of discovery. 

9.	 If in answering any Request you claim ambiguity in either the Request or any applicable 

definition or instruction, identify in your response the language you consider ambiguous 

and state the interpretation you are using in responding. 

10.	 Each Request is continuing in nature and requires prompt amendment of any prior 

response if you learn, after acquiring additional information or otherwise, that the 

response is in some material respect incomplete or incorrect. See 16 C.F.R. § 3.31(e). 

11.	 If you object to any Request or any portion of any Request on the ground that it requests 

information that is privileged (including the attorney-client privilege) or falls within the 

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 .

PUBLIC

attorney work product doctrine, state the nature of the privilege or doctrine you claim and 

provide all other information as required by 16 C.F.R. § 3.38A. 

12.	 Whenever a Request is stated in the conjunctive, it shall also be taken in the disjunctive, 

and vice versa. 

13.	 Whenever a Request is stated in the singular, it shall also be taken in the plural, and vice 

versa. 

14.	 Estimated dates should be given when, but only when, exact dates cannot be supplied. 

Any estimates should be identified as such. 

May 22, 2012 By: s/ Linda Holleran 

Edward Hassi, Esq. 

Linda M. Holleran, Esq. 

Michael J. Bloom, Esq. 

Geoffrey M. Green, Esq. 

J. Alexander Ansaldo, Esq. 

Jeanine K. Balbach, Esq. 

Michael J. Bloom, Esq. 

Thomas H. Brock, Esq. 

Monica Castillo, Esq. 

Andrew K. Mann, Esq 

Counsel Supporting the Complaint 

Bureau of Competition 

Federal Trade Commission 

Washington, DC 20580 

Telephone: (202) 326-2470 

Facsimile: (202) 326-3496 

Electronic mail: ehassi@ftc.gov 

-9-
 

 

 

 

PUBLIC

CERTIFICATE OF SERVICE 

I hereby certify that on May 22, 2012, I filed the foregoing document 

electronically using the FTC’s E-Filing System, which will send notification of such 

filing to: 

Donald S. Clark 

Secretary 

 Federal Trade Commission 

 600 Pennsylvania Ave., NW, Rm. H-113 

 Washington, DC 20580 

 I also certify that I delivered via electronic mail and hand delivery a copy of the 

foregoing document to: 

The Honorable D. Michael Chappell 

 Administrative Law Judge 

 Federal Trade Commission 

 600 Pennsylvania Ave., NW, Rm. H-110 

 Washington, DC 20580 

 I further certify that I delivered via electronic mail a copy of the foregoing 

document to: 

Joseph A. Ostoyich 

William C. Lavery 

Baker Botts L.L.P. 

The Warner 

1299 Pennsylvania Ave., NW 

Washington, DC 20004 

(202) 639-7700 

joseph.ostoyich@bakerbotts.com 

william.lavery@bakerbotts.com 

J. Alan Truitt 

Thomas W. Thagard III 

Maynard Cooper and Gale PC 

1901 Sixth Avenue North 

2400 Regions Harbert Plaza 

Birmingham, AL 35203 

(205) 254-1000 

atruitt@maynardcooper.com 

tthagard@maynardcooper.com 

Counsel for Respondent McWane, Inc. 
 

 

CERTIFICATE FOR ELECTRONIC FILING 

PUBLIC

 I certify that the electronic copy sent to the Secretary of the Commission is a true 

and correct copy of the paper original and that I possess a paper original of the signed 

document that is available for review by the parties and the adjudicator. 

May 22, 2012 By: s/ Linda Holleran 

Attorney 

2
 
PUBLIC

EXHIBIT A 

srobinson on DSKHWCL6B1PROD with NOTICES

PUBLIC

Federal Register / Vol. 75, No. 185 / Friday, September 24, 2010 / Notices 58379 

commercial and industrial (ICI) boilers, 


vapor recovery at gas stations, large 


above ground storage tanks, seaports, 


aftermarket catalysts, lightering, and 


non-road idling. 


DATES: The meeting will be held on 


November 10, 2010 starting at 9 a.m. 


and ending at 4 p.m. 


Location: Sheraton Boston, 39 Dalton 

Street, Boston, Massachusetts 02199; 

(617) 236–2000 or (888) 627–7054. 

FOR FURTHER INFORMATION CONTACT: For 

documents and press inquiries contact: 

Ozone Transport Commission, 444 

North Capitol Street, NW., Suite 638, 

Washington, DC 20001; (202) 508–3840; 

e-mail: ozone@otcair.org; Web site: 

http://www.otcair.org. 

SUPPLEMENTARY INFORMATION: The Clean 

Air Act Amendments of 1990 contain at 

Section 184 provisions for the Control of 

Interstate Ozone Air Pollution. Section 

184(a) establishes an Ozone Transport 

Region (OTR) comprised of the States of 

Connecticut, Delaware, Maine, 

Maryland, Massachusetts, New 

Hampshire, New Jersey, New York, 

Pennsylvania, Rhode Island, Vermont, 

parts of Virginia and the District of 

Columbia. The purpose of the OTC is to 

deal with ground-level ozone formation, 

transport, and control within the OTR. 

Type of meeting: Open. 

Agenda: Copies of the final agenda 

will be available from the OTC office 

(202) 508–3840; by e-mail: 

ozone@otcair.org or via the OTC Web 

site at http://www.otcair.org. 

Dated: September 7, 2010. 

W.C. Early, 

Acting Regional Administrator, Region III. 

[FR Doc. 2010–23994 Filed 9–23–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–9205–4] 

Notice of a Regional Project Waiver of 

Section 1605 (Buy American) of the 

American Recovery and Reinvestment 

Act of 2009 (ARRA) to the City of 

Lewiston, ME and the Auburn, Maine 

Water District 

AGENCY: Environmental Protection 


Agency (EPA). 


ACTION: Notice. 


SUMMARY: The EPA is hereby granting a 

waiver of the Buy American 

requirements of ARRA Section 1605 

under the authority of Section 

1605(b)(2) [manufactured goods are not 

produced in the United States in 

sufficient and reasonably available 

quantities and of a satisfactory quality] 

to the City of Lewiston, Maine and the 

Auburn, Maine Water District (‘‘AuburnLewiston’’) for the purchase of thirteen 

separate types of ductile iron pipe 

fittings (with various quantities for each 

individual fitting configuration totaling 

33 fittings) that are foreign 

manufactured as part of an upgrade 

project at the Auburn-Lewiston Water 

Treatment Facility. This is a project 

specific waiver and only applies to the 

use of the specified product for the 

ARRA project being proposed. Any 

other ARRA recipient that wishes to use 

the same product must apply for a 

separate waiver based on project 

specific circumstances. Based upon 

information submitted by AuburnLewiston, it has been determined that 

there are currently no domestically 

manufactured pipe fittings available to 

meet the Auburn-Lewiston’s project 

construction schedule. The Regional 

Administrator is making this 

determination based on the review and 

recommendations of the Municipal 

Assistance Unit. The Assistant 

Administrator of the Office of 

Administration and Resources 

Management has concurred on this 

decision to make an exception to 

Section 1605 of ARRA. This action 

permits the purchase of foreign 

manufactured pipe fittings by AuburnLewiston, as specified in its July 28, 

2010 request. 

DATES: Effective Date: September 15, 

2010. 

FOR FURTHER INFORMATION CONTACT: 

Katie Connors, Environmental Engineer, 

(617) 918–1658, or David Chin, 

Environmental Engineer, (617) 918– 

1764, Municipal Assistance Unit (CMU), 

Office of Ecosystem Protection (OEP), 

U.S. EPA, 5 Post Office Square, Suite 

100, Boston, MA 02109–3912. 

SUPPLEMENTARY INFORMATION: In 

accordance with ARRA Section 1605(c), 

the EPA hereby provides notice that it 

is granting a project waiver of the 

requirements of Section 1605(a) of 

Public Law 111–5, Buy American 

requirements, to the City of Lewiston, 

Maine and the Auburn, Maine Water 

District for the purchase of foreign 

manufactured pipe fittings as part of its 

water treatment facility upgrade project. 

The specific ductile iron fittings are not 

available from a domestic manufacturer 

to meet the project construction 

schedule. Section 1605 of the ARRA 

requires that none of the appropriated 

funds may be used for the construction, 

alteration, maintenance, or repair of a 

public building or a public works 

project unless all of the iron, steel, and 

manufactured goods used in the project 

is produced in the United States, or 

unless a waiver is provided to the 

recipient by the head of the appropriate 

agency, here the EPA. A waiver may be 

provided if EPA determines that (1) 

applying these requirements would be 

inconsistent with the public interest; (2) 

iron, steel, and the relevant 

manufactured goods are not produced in 

the United States in sufficient and 

reasonably available quantities and of a 

satisfactory quality; or (3) inclusion of 

iron, steel, and the relevant 

manufactured goods produced in the 

United States will increase the cost of 

the overall project by more than 25 

percent. 

Consistent with the direction of the 

OMB Guidance at 2 CFR 176.120, EPA 

will generally regard waiver requests 

with respect to components that were 

specified in the bid solicitation or in a 

general/primary construction contract as 

‘‘late’’ if submitted after the contract 

date. However, in this case EPA has 

determined that the Auburn-Lewiston’s 

request, though made after the date that 

the contract was signed on March 11, 

2010, can be evaluated as timely 

because the supplier informed the 

subcontractor of the recipient on July 

19, 2010 that the domestic manufacturer 

would not be able to deliver the 

required type and number of fittings to 

meet the project schedule/delivery date. 

The need for a waiver was not 

determined until after the subcontractor 

had been informed of the extended 

delivery delay and further research 

indicated that there were no domestic 

manufacturers that could provide the 

necessary pipe fittings to meet the 

required project delivery schedule. The 

recipient could not reasonably foresee 

the need for such a determination until 

it was informed that the specific 

domestic pipe fittings would not be 

available at the originally scheduled 

time frame. Accordingly, EPA will 

evaluate the request as if it were timely. 

Auburn-Lewiston is constructing a 

new Ultraviolet (UV) disinfection 

treatment facility in order to comply 

with the Long Term 2 Enhanced Surface 

Water Treatment Rule requirements of 

the Safe Drinking Water Act, and part of 

the work involves the installation of 

new pipe and pipe fittings. According to 

information provided by AuburnLewiston, there are 13 different fitting 

types of various sizes and connection 

types, resulting in a total of 33 

individual fittings. The fittings are also 

required to meet the following 

specifications: (1) Manufactured to 

conform with ANSI/AWWA A21.51/ 

C151; (2) inside bituminous coating; and 

(3) outside primer of TNEMEC 

Omnithane Series 1. 

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58380 Federal Register / Vol. 75, No. 185 / Friday, September 24, 2010 / Notices 

PUBLIC

According to Auburn-Lewiston, the 

subcontract to furnish and install the 

ductile iron pipe and pipe fittings was 

awarded on March 11, 2010 and none of 

the subcontractors raised any concerns 

about getting the pipe fittings delivered 

on time. A purchase order for the 

ductile iron piping and fittings was 

placed on April 29, 2010 with an agreed 

upon shipping date of July 19, 2010 to 

meet the project schedule. 

On July 19, 2010, the supplier 

received notification from the domestic 

foundries manufacturing the subject 

fittings that due to production order 

backlog, delivery of standard fittings 

would be delayed at least 4 weeks and 

delivery of the special, non-standard 

fittings (long radius bends and large 

diameter tees) could be delayed at least 

8 weeks. The project procurement 

manager reported that the estimated 4 

and 8 week delays were not guaranteed 

and that the delays could be longer. The 

possibility of delays was confirmed by 

EPA’s national contractor in 

conversation with the manufacturer. 

The project schedule called for 

delivery and installation of the ductile 

iron pipe fittings between July 16, 2010 

and August 12, 2010, so the testing of 

the lines could be initiated prior to 

September 1, 2010. In addition, the 

ultraviolet disinfection treatment system 

testing completion and operator training 

milestone date is December 8, 2010, 

with an overall project completion and 

transfer of facility to the owner date of 

January 5, 2011. If the delivery of the 

pipe fittings is delayed until midSeptember of 2010, it is estimated that 

final completion date will be pushed 

back to at least several weeks. There 

also has been no guarantee given by the 

manufacturer that the fittings will be 

delivered by mid-September, the revised 

delivery date. According to AuburnLewiston, delivery times for certain 

items are being quoted as long as six 

months for existing orders. 

The project procurement manager 

solicited quotations and committed 

delivery times for non-domestic 

manufactured ductile iron fittings from 

two local suppliers. Based on the 

information that was obtained, the nondomestic manufactured ductile iron 

pipe fittings necessary for the project, 

with the exception of one 24′′ x 4′′ tee, 

could be delivered within a time frame 

to meet the project schedule. The work 

could be coordinated to accommodate 

the later delivery of the 24′′ x 4′′ tee and 

preserve the December 8, 2010 overall 

system testing and operator training 

milestone date, as well as the January 5, 

2011 overall project completion date. 

Based on the review conducted by 

EPA’s national contractor, AuburnLewiston’s claim that the specific 

ductile iron fittings are not available 

from a domestic manufacturer to meet 

project schedule milestones is 

supported by the available evidence. At 

least eight additional potential domestic 

manufacturers of ductile iron pipe 

fittings were contacted and it was 

determined that none would be able to 

meet the required project delivery 

schedule. 

Furthermore, the purpose of the 

ARRA is to stimulate economic recovery 

by funding current infrastructure 

construction, not to delay projects that 

are ‘‘shovel ready’’ by requiring potential 

SRF eligible recipients, such as the 

Auburn-Lewiston to either revise their 

design standards and specifications, or 

in this situation significantly alter its 

construction schedule. The imposition 

of ARRA Buy American requirements in 

this case would result in an 

unreasonable delay for this project. To 

delay this construction would directly 

conflict with a fundamental economic 

purpose of ARRA, which is to create or 

retain jobs. 

The April 28, 2009 EPA HQ 

Memorandum, ‘‘Implementation of Buy 

American provisions of Pub. L. 111–5, 

the ‘American Recovery and 

Reinvestment Act of 2009’ ’’ 

(‘‘Memorandum’’), defines reasonably 

available quantity as ‘‘the quantity of 

iron, steel, or relevant manufactured 

good is available or will be available at 

the time needed and place needed, and 

in the proper form or specification as 

specified in the project plans and 

design.’’ The same Memorandum 

defines ‘‘satisfactory quality’’ as ‘‘the 

quality of steel, iron or manufactured 

good specified in the project plans and 

designs.’’ 

The Municipal Assistance Unit (CMU) 

has reviewed this waiver request and 

has determined that the supporting 

documentation provided by AuburnLewiston establishes both a proper basis 

to specify a particular manufactured 

good, and that the domestic 

manufactured good is currently not 

available to meet the construction 

schedule for the proposed project. The 

information provided is sufficient to 

meet the following criteria listed under 

Section 1605(b) of the ARRA and in the 

April 28, 2009 Memorandum: Iron, 

steel, and the manufactured goods are 

not produced in the United States in 

sufficient and reasonably available 

quantities and of a satisfactory quality. 

The March 31, 2009 Delegation of 

Authority Memorandum provided 

Regional Administrators with the 

temporary authority to issue exceptions 

to Section 1605 of the ARRA within the 

geographic boundaries of their 

respective regions and with respect to 

requests by individual grant recipients. 

Having established both a proper 

basis to specify the particular good 

required for this project and that this 

manufactured good was not available 

from a producer in the United States, 

the City of Lewiston, Maine and the 

Auburn, Maine Water District are 

hereby granted a waiver from the Buy 

American requirements of Section 

1605(a) of Public Law 111–5. This 

waiver permits use of ARRA funds for 

the purchase of non-domestic 

manufactured pipe fittings documented 

in Auburn-Lewiston’s waiver request 

submittal dated July 28, 2010. This 

supplementary information constitutes 

the detailed written justification 

required by Section 1605(c) for waivers 

based on a finding under subsection (b). 

Authority: Pub. L. 111–5, section 1605. 

Dated: September 15, 2010. 

Ira W. Leighton, 

Acting Regional Administrator, EPA Region 

1—New England. 

[FR Doc. 2010–23989 Filed 9–23–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–9206–3] 

Notice of a Regional Project Waiver of 

Section 1605 (Buy American) of the 

American Recovery and Reinvestment 

Act of 2009 (ARRA) to the Town of 

Bristol, RI 

AGENCY: Environmental Protection 


Agency (EPA). 


ACTION: Notice. 


SUMMARY: The EPA is hereby granting a 

waiver of the Buy American 

requirements of ARRA Section 1605 

under the authority of Section 

1605(b)(1) [inconsistent with the public 

interest] to the Town of Bristol, Rhode 

Island (Town) for the utilization and 

installation of two influent and two 

effluent sluice gates for the facility’s two 

final clarifiers as part of a larger overall 

wastewater treatment plant upgrade 

project. This is a project specific waiver 

and only applies to the use of the 

specified product for the ARRA project 

being proposed. Any other ARRA 

recipient that wishes to use the same 

product must apply for a separate 

waiver based on project specific 

circumstances. The Town had been 

assured by the manufacturer that the 

sluice gates would be made in a facility 

in Massachusetts. However, the 

manufacturer informed the Town of 

Bristol in writing on July 8, 2010 that 

srobinson on DSKHWCL6B1PROD with NOTICES

58382 Federal Register / Vol. 75, No. 185 / Friday, September 24, 2010 / Notices 

PUBLIC

manufacturer is aware of the scheduling 

implications and has offered to provide 

the sluice gates at no cost, other than for 

freight and field service charges. The 

Town, which could not reasonably 

foresee the need for a waiver to the Buy 

American provision of the ARRA, 

submitted a waiver request immediately 

(July 9th, 2010) after they were informed 

by the manufacturer of the delivery 

oversight. 

Re-ordering the gates and having them 

manufactured in the Massachusetts 

facility would delay the upgrade work 

to the final clarifiers by at least three 

months. Unfortunately, the existing 

final clarifier equipment has already 

failed, and since existing wastewater 

flows at the wastewater treatment plant 

are currently at seasonal lows, the most 

opportune time to install the new sluice 

gates would be during the July and 

August time frame. 

Furthermore, the purpose of the 

ARRA is to stimulate economic recovery 

by funding current infrastructure 

construction, not to delay or require the 

substantial redesign of projects that are 

‘‘shovel ready,’’ such as this project at 

the Bristol, Rhode Island Wastewater 

Treatment Plant. The implementation of 

the ARRA Buy American requirements 

in this case would result in additional 

cost for this project and unreasonable 

delay in its completion. Such delay 

would also directly conflict with a 

fundamental economic purpose of 

ARRA, which is to create or retain jobs. 

More importantly, the imposition of the 

Buy American requirement would result 

in additional risk to water quality 

protection. 

The Municipal Assistance Unit (CMU) 

has reviewed this waiver request and 

has determined that the supporting 

documentation provided by the Town’s 

design engineer established a proper 

basis to specify that using the domestic 

manufactured good would be 

inconsistent with the public interest of 

the Town of Bristol, Rhode Island. The 

information provided is sufficient to 

meet the following criteria listed under 

Section 1605(b)(1) of the ARRA and in 

the April 28, 2009 Memorandum: 

Applying these requirements would be 

inconsistent with the public interest. 

The March 31, 2009 Delegation of 

Authority Memorandum provided 

Regional Administrators with the 

temporary authority to issue exceptions 

to Section 1605 of the ARRA within the 

geographic boundaries of their 

respective regions and with respect to 

requests by individual grant recipients. 

Having established both a proper 

basis to specify the particular good 

required for this project and that using 

a domestically available alternative 

manufactured good would be 

inconsistent with the public interest, the 

Town of Bristol, Rhode Island is hereby 

granted a waiver from the Buy American 

requirements of Section 1605(a) of 

Public Law 111–5. This waiver permits 

use of ARRA funds for the installation 

and utilization of foreign manufactured 

influent and effluent sluice gates as 

documented in the Town’s waiver 

request submittal dated July 9, 2010. 

This supplementary information 

constitutes the detailed written 

justification required by Section 1605(c) 

for waivers based on a finding under 

subsection (b). 

Authority: Pub. L. 111–5, section 1605. 

Dated: September 15, 2010. 

Ira W. Leighton, 

Acting Regional Administrator, EPA Region 

1—New England. 

[FR Doc. 2010–23968 Filed 9–23–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–9206–3] 

Notice of a Regional Project Waiver of 

Section 1605 (Buy American) of the 

American Recovery and Reinvestment 

Act of 2009 (ARRA) to the City of 

Lowell, MA 

AGENCY: Environmental Protection 


Agency (EPA). 


ACTION: Notice. 


SUMMARY: The EPA is hereby granting a 

waiver of the Buy American 

requirements of ARRA Section 1605 

under the authority of Section 

1605(b)(1) [inconsistent with the public 

interest] to the City of Lowell, 

Massachusetts (City) for the purchase of 

a foreign manufactured 30-inch 

diameter pipe tee fitting for a finished 

water pipe at the Lowell Water 

Treatment Facility. This is a projectspecific waiver and only applies to the 

use of the specified product for the 

ARRA project being proposed. Any 

other ARRA recipient that wishes to use 

the same product must apply for a 

separate waiver based on projectspecific circumstances. The proposed 

work involved repairing an existing 30-

inch cement lined ductile iron fitting on 

a finished water line in the Lowell 

Water Treatment Facility. Based upon 

information submitted by the City’s 

consulting engineer, EPA has concluded 

that, under the given circumstances (i.e. 

emergency standby situation, the need 

to minimize disruption in water 

transmission service), requiring the 

installation of an alternative domestic 

manufactured pipe fitting would be 

inconsistent with the public interest, 

and that a waiver of the Buy American 

provisions is justified. The Regional 

Administrator is making this 

determination based on the review and 

recommendations of the Municipal 

Assistance Unit. The Assistant 

Administrator of the Office of 

Administration and Resources 

Management has concurred on this 

decision to make an exception to the 

requirements of Section 1605(a) of 

ARRA. This action allows the purchase 

and installation of the foreign 

manufactured 30-inch pipe fitting 

media, as specified in its June 18, 2010 

request. 

DATES: Effective Date: September 15, 

2010. 

FOR FURTHER INFORMATION CONTACT: 

Katie Connors, Environmental Engineer, 

(617) 918–1658, or, David Chin, 

Environmental Engineer, (617) 918– 

1764, Municipal Assistance Unit (CMU), 

Office of Ecosystem Protection (OEP), 

U.S. EPA, 5 Post Office Square, Suite 

100, Boston, MA 02109–3912. 

SUPPLEMENTARY INFORMATION: In 

accordance with ARRA Section 1605(c), 

the EPA hereby provides notice that it 

is granting a project waiver of the 

requirements of Section 1605(a) of 

Public Law 111–5, Buy American 

requirements, to the City of Lowell, 

Massachusetts for the purchase of a nondomestic 30-inch diameter pipe fitting 

for a finished water pipe at the Lowell 

Water Treatment Facility. EPA has 

evaluated the City’s basis for procuring 

a 30-inch diameter pipe fitting from 

China at a cost of $4,000. Based on the 

information provided by the City’s 

design engineer, EPA has determined 

that it is inconsistent with the public 

interest for the City to have pursued the 

purchase of a domestically 

manufactured 30-inch diameter pipe 

fitting under the specific circumstances 

encountered by the City. 

Section 1605 of the ARRA requires 

that none of the appropriated funds may 

be used for the construction, alteration, 

maintenance, or repair of a public 

building or a public works project 

unless all of the iron, steel, and 

manufactured goods used in the project 

is produced in the United States, or 

unless a waiver is provided to the 

recipient by the head of the appropriate 

agency, here the EPA. A waiver may be 

provided under Section 1605(b) if EPA 

determines that (1) applying these 

requirements would be inconsistent 

with the public interest; (2) iron, steel, 

and the relevant manufactured goods 

are not produced in the United States in 

sufficient and reasonably available 

srobinson on DSKHWCL6B1PROD with NOTICES

PUBLIC

Federal Register / Vol. 75, No. 185 / Friday, September 24, 2010 / Notices 58383 

quantities and of a satisfactory quality; 

or (3) inclusion of iron, steel, and the 

relevant manufactured goods produced 

in the United States will increase the 

cost of the overall project by more than 

25 percent. 

When a recipient or sub-recipient has 

used foreign iron, steel, and/or 

manufactured goods for an ARRA 

project without authorization, as is the 

case here, OMB’s regulation at 2 CFR 

176.130 directs EPA to take appropriate 

action, which may include processing a 

determination concerning the 

inapplicability of Section 1605 of ARRA 

in accordance with 2 CFR 176.120. 

Consistent with the direction of 2 CFR 

176.120, EPA will generally consider a 

waiver request made after obligating 

ARRA funds for a project to be a ‘‘late’’ 

request. However, in this case EPA has 

determined that the City’s request, 

though made after the date the contract 

was signed and after use of the foreign 

pipe fitting, can be evaluated as timely 

because the City could not reasonably 

have foreseen the need for such a 

determination until after initiating the 

work. Accordingly, EPA will evaluate 

the request as if it were timely. 

The City is requesting a waiver of the 

Buy American provision for a 30-inch 

diameter pipe fitting that was 

manufactured in China which replaced 

an existing 30-inch diameter cement 

lined ductile iron fitting on a finished 

water line at the Lowell Water 

Treatment facility. According to the 

City’s design engineer, the existing 30-

inch diameter pipe fitting had been 

leaking for some time at the threaded 

connection with a 2-inch air release 

valve. The original intent of the City 

was to remove the air release valve, 

clean the threads, perform the necessary 

repairs, and re-install the existing 30-

inch fitting. However, in the event of a 

possible break in the pipe delivery 

system or if the existing fitting failed 

during the repair work, a new 30-inch 

diameter pipe fitting had to be on-site 

on an emergency standby basis. As a 

result, the City explored having a 30-

inch diameter pipe fitting on-site before 

they could start any additional repair 

work. 

During the week of May 3rd, 2010, the 

City was informed by three suppliers/ 

vendors that a 30-inch diameter 

domestic pipe fitting would not be 

available on an emergency standby basis 

unless the City purchased it outright. 

Based on information provided by the 

City’s consulting engineer, due to the 

large size of the fitting, vendors would 

only make their imported 30-inch tee 

pipe fittings available on standby status, 

but not their domestic pipe fittings. As 

a result, no domestic-made fittings of 

that size were available for stand-by in 

an emergency situation that would meet 

technical specifications. The City could 

not find a supplier/vendor that would 

promise right of first refusal on a 

domestic manufactured pipe fitting 

without purchasing it in full. None of 

the available vendors would allow the 

City the opportunity to return a 30-inch 

diameter domestic pipe fitting, if the 

City had decided on not installing it. 

The City decided to order a 30-inch 

diameter foreign manufactured pipe 

fitting (made in China at a cost to the 

City of Lowell of $4,000) to have it 

available on an emergency standby basis 

to minimize plant shutdown and any 

disruption of water service delivery, in 

the event total replacement became 

necessary or if the pipe delivery system 

failed. The City had planned to repair 

and re-install the existing pipe fitting, 

but once the repair work had begun, it 

was determined that complete 

replacement was the proper approach to 

take. During the week of June 14th, the 

new foreign manufactured 30-inch 

diameter pipe fitting was installed. 

Fortunately, and more importantly, no 

disruption of water transmission service 

took place due to proper planning. The 

City then made the request to the EPA 

for a waiver on June 18, 2010, 

immediately after the emergency 

replacement work took place and it 

could not reasonably foresee the need 

for such a determination until after 

initiating the repair work and 

determining that a complete 

replacement of the pipe fitting was the 

proper course of action. 

Furthermore, the purpose of the 

ARRA is to stimulate economic recovery 

by funding current infrastructure 

construction, not to delay or require the 

substantial redesign of projects that are 

‘‘shovel ready,’’ such as this project at 

the Lowell Water Treatment Plant. The 

imposition of ARRA Buy American 

requirements in this case would have 

likely resulted in unreasonable 

additional cost for this project and delay 

in its completion. Such delay would 

also directly conflict with a 

fundamental economic purpose of 

ARRA, which is to create or retain jobs. 

More importantly, the imposition could 

have resulted in a risk to public health 

had water service been interrupted for 

any extended period of time. 

The Municipal Assistance Unit (CMU) 

has reviewed this waiver request and 

has determined that the supporting 

documentation provided by the City’s 

design engineer established a proper 

basis to specify that using the domestic 

manufactured good would be 

inconsistent with the public interest of 

the City of Lowell. The information 

provided is sufficient to meet the 

following criteria listed under Section 

1605(b)(1) of the ARRA and in the April 

28, 2009 Memorandum: Applying these 

requirements would be inconsistent 

with the public interest. 

The March 31, 2009 Delegation of 

Authority Memorandum provided 

Regional Administrators with the 

temporary authority to issue exceptions 

to Section 1605 of the ARRA within the 

geographic boundaries of their 

respective regions and with respect to 

requests by individual grant recipients. 

Having established both a proper 

basis to specify the particular good 

required for this project and that using 

a domestically available alternative 

manufactured good would be 

inconsistent with the public interest, the 

City of Lowell, Massachusetts is hereby 

granted a waiver from the Buy American 

requirements of Section 1605(a) of 

Public Law 111–5. This waiver permits 

use of ARRA funds for the purchase of 

a foreign manufactured 30-inch 

diameter pipe fitting documented in the 

City’s waiver request submittal dated 

June 18, 2010. This supplementary 

information constitutes the detailed 

written justification required by Section 

1605(c) for waivers based on a finding 

under subsection (b). 

Authority: Public Law 111–5, section 

1605. 

Dated: September 15, 2010. 

Ira W. Leighton, 

Acting Regional Administrator, EPA Region 

1—New England. 

[FR Doc. 2010–23988 Filed 9–23–10; 8:45 am] 

BILLING CODE 6560–50–P 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–9205–5] 

Science Advisory Board Staff Office 

Request for Nominations of Experts for 

the Review of Great Lakes Restoration 

Initiative Action Plan 

AGENCY: Environmental Protection 


Agency (EPA). 


ACTION: Notice. 


SUMMARY: The EPA Science Advisory 

Board (SAB) Staff Office is requesting 

public nominations for technical experts 

to form an SAB panel to review the 

interagency Great Lakes Restoration 

Initiative (GLRI) Action Plan which 

describes restoration priorities, goals, 

objectives, measurable ecological 

targets, and specific actions. 

DATES: Nominations should be 

submitted by October 15, 2010 per 

instructions below. 

emcdonald on DSK2BSOYB1PROD with NOTICES

32467 

PUBLIC

Federal Register / Vol. 75, No. 109 / Tuesday, June 8, 2010 / Notices 

ENVIRONMENTAL PROTECTION 

AGENCY 

[FRL–9159–7] 

Notice of a Regional Waiver of Section 

1605 (Buy American Requirement) of 

the American Recovery and 

Reinvestment Act of 2009 (ARRA) to 

the City of Richland (the City) 

Washington 

AGENCY: Environmental Protection 


Agency (EPA). 


ACTION: Notice. 


SUMMARY: The Regional Administrator 

of EPA Region 10 is hereby granting a 

late waiver request from the Buy 

American requirements of ARRA 

Section 1605(a) under the authority of 

Section 1605(b)(2) [manufactured goods 

are not produced in the United States in 

sufficient and reasonably available 

quantities and of a satisfactory quality] 

to the City for the purchase and use of 

a 42-inch by 24-inch AWWA C153 

cement lined mechanical joint reducer 

tee fitting, manufactured outside of the 

U.S. This is a project specific waiver 

and only applies to the use of the 

specified product for the ARRA project 

discussed in this notice. Any other 

ARRA recipient that wishes to use the 

same product must apply for a separate 

waiver based on project specific 

circumstances. The City’s waiver 

request included the project schedule 

and purchasing efforts attempting to 

meet Buy American compliance by the 

applicant, contractor and pipeline 

materials supplier. The domestic 

manufacturer notified the piping 

supplier that the shipment of the 

product would be delayed and it 

appears that the supplier on behalf of 

the City, the ARRA recipient, did an 

extensive, seemingly comprehensive, 

and ultimately unsuccessful search for a 

U.S. manufacturer who could meet the 

project specifications in accordance 

with the construction schedule. 

The Regional Administrator is making 

this determination based on the review 

and recommendations of the Grants & 

Strategic Planning Unit. The City has 

provided sufficient documentation to 

support their request. 

DATES: Effective Date: May 21, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Bryan Fiedorczyk, CWSRF ARRA 

Program Management Analyst, Grants 

and Strategic Planning Unit, Office of 

Water & Watersheds (OWW), (206) 553– 

0506, U.S. EPA Region 10 (OWW–137), 

1200 Sixth Avenue, Suite 900, Seattle, 

WA 98101. 

SUPPLEMENTARY INFORMATION: 

In accordance with ARRA Section 

1605(c) and OMB regulations at 2 CFR 

Part 176, Subpart B, the EPA hereby 

provides notice that it is granting a late 

project waiver request of the 

requirements of Section 1605(a) of 

Public Law 111–5, Buy American 

requirements, to the City for the 

purchase and use of a 42-inch by 24-

inch AWWA C153 cement lined 

mechanical joint reducer tee fitting, 

manufactured outside of the U.S. The 

AWWA C153 reducer fittings will be 

incorporated as part of a wastewater 

treatment system upgrade project that 

will replace an energy intensive 

inefficient aeration treatment process 

with a plug flow fine bubble aeration 

system. The improvements will reduce 

energy consumption by more than 70% 

and reduce the discharge of suspended 

solids, biochemical oxygen demand and 

nitrogen into the Columbia River. The 

City received $3,049,304 of ARRA 

funding through the Clean Water State 

Revolving Fund to complete this 

project. The City was unable to find a 

supplier that could provide American 

manufactured reducer fittings to meet 

the project specific requirements and 

the construction schedule agreed upon 

for the project. 

There are several noteworthy factors 

that impact this waiver analysis: (a) It is 

a late request because the waiver request 

came after the construction contract was 

signed; (b) under 2 CFR 176.130(c)(1) 

the applicable non-compliance 

provision regarding unauthorized use of 

foreign manufactured goods, EPA is 

authorized to process a waiver under 2 

CFR 176.120(a) if ‘‘the need for such 

determination otherwise was not 

reasonably foreseeable,’’ and EPA has 

further outlined this process in its April 

28, 2009 memorandum: Implementation 

of Buy American provisions of Public 

Law 111–5, the ‘‘American Recovery and 

Reinvestment Act of 2009’’ (the April 28 

memorandum); (c) EPA has determined 

that the applicant ordered domestically 

manufactured AWWA C153 reducer 

fittings, and due to the supplier’s 

inability to deliver one of the fittings on 

schedule, the applicant could not 

reasonably foresee they would need to 

request a waiver for a foreign made 

product. 

The project contractor’s piping 

supplier (H.D. Fowler) issued a 

purchase order to the manufacturer (Star 

Pipe Products) for the AWWA C153 

reducer fittings (2 each) on February 23, 

2010. One fitting is associated with the 

modification to the WWTF Aeration 

Basin 2 and the second fitting is 

associated with the modification to the 

WWTF Aeration Basin 1. The contract 

schedule requires that the subject 

product for Basin 2 be delivered to the 

project site by June 2, 2010, which will 

ensure the startup of Basin 2 by August 

5, 2010 and the commissioning of Basin 

2 by September 15, 2010. Work on the 

modification to Basin 1 is scheduled to 

commence immediately following the 

commissioning of Basin 2. The piping 

supplier placed the order with the 

manufacturer on the basis of an agreed 

ship date of May 24, 2010 [90 days from 

receipt of purchase order] for one of the 

two products and an agreed ship date of 

June 23, 2010 [120 days from receipt of 

purchase order] for the second of the 

two products. On March 30, 2010, the 

manufacturer notified the piping 

supplier that the shipment of the 

product would be delayed. The 

estimated time of arrival at the site 

would be June 26, 2010. The delay in 

shipment poses a negative impact to 

project construction costs, schedule, 

and employment. Late delivery would 

push the site piping installation into the 

same time frame as the diffuser 

installation in order to meet the 

project’s contractual completion 

schedule. Since the reducer fitting is a 

central part of the piping scheme, most 

pipe cannot be installed prior to this 

central node being completed. Delay of 

the piping installation would impose 

extra costs of installation equipment 

(excavator, dump truck, and loader) that 

would need to remain on site for an 

additional month. Additionally, the 

contractor would need to lay off two 

full-time equivalent (FTE) employees (of 

the three FTE positions assigned to the 

project) for approximately 18 work days 

(between June 2nd and June 26th, 2010). 

Based on the technical evaluation 

conducted by EPA’s consulting 

contractor (Cadmus), the available 

evidence supports the applicant’s claim 

that the AWWA C153 reducer fitting for 

Basin 2 is not available from a domestic 

manufacturer within a timeframe that 

meets the project’s schedule (i.e., 

delivery to the project site by June 2, 

2010). Further, the domestic 

manufacturer has advised the Grants 

and Strategic Planning Unit that it has 

a substantial back log of orders and will 

not be adversely affected if the City 

cancels the purchase order. 

Section 1605 of the ARRA requires 

that none of the appropriated funds may 

be used for the construction, alteration, 

maintenance, or repair of a public 

building or public work unless all of the 

iron, steel, and manufactured goods 

used in the project is produced in the 

United States unless a waiver is 

provided to the recipient by EPA. A 

waiver may be provided under Section 

1605(b) if EPA determines that, (1) 

emcdonald on DSK2BSOYB1PROD with NOTICES

32468 Federal Register / Vol. 75, No. 109 / Tuesday, June 8, 2010 / Notices 

PUBLIC

Applying these requirements would be 

inconsistent with public interest; (2) 

iron, steel, and the relevant 

manufactured goods are not produced in 

the United States in sufficient and 

reasonably available quantities and of a 

satisfactory quality; or (3) inclusion of 

iron, steel, and the relevant 

manufactured goods produced in the 

United States will increase the cost of 

the overall project by more than 25 

percent. 

The April 28 memorandum defines 

‘‘reasonably available quantity’’ as the 

quantity of iron, steel, or relevant 

manufactured good is available or will 

be available at the time needed and 

place needed, and in the proper form or 

specification as specified in the project 

plans and design. Based on additional 

research by EPA’s consulting contractor 

(Cadmus), and to the best of the 

Region’s knowledge at this time, the 

City attempted without success, to meet 

the Buy American requirements. 

Furthermore, the purpose of the ARRA 

provisions was to stimulate economic 

recovery by funding current 

infrastructure construction, not to delay 

projects that are already shovel ready by 

requiring entities, like the City, to halt 

construction pending manufacture of 

domestically produced goods. To 

further delay construction is in direct 

conflict with the most fundamental 

economic purposes of ARRA; to create 

or retain jobs. 

The Grants and Strategic Planning 

Unit has reviewed this waiver request 

and has determined that the supporting 

documentation provided by the City is 

sufficient to meet the following criteria 

listed under Section 1605(b) and in the 

April 28 memorandum: Iron, Steel, and 

manufactured goods are not produced in 

the United States in sufficient and 

reasonably available quantities and of a 

satisfactory quality. 

The basis for this project waiver is the 

authorization provided in Section 

1605(b)(2), due to the lack of U.S. 

production of a 42-inch by 24-inch 

AWWA C153 cement lined mechanical 

joint reducer tee fitting, in order to meet 

the City’s design schedule and 

specifications. The March 31, 2009, 

Delegation of Authority Memorandum 

provided Regional Administrators with 

the authority to issue exceptions to 

Section 1605 of ARRA within the 

geographic boundaries of their 

respective regions and with respect to 

requests by individual grant recipients. 

Having established both a proper basis 

to specify the particular good required 

for this project, and that this 

manufactured good was not available 

from a producer in the United States, 

the City is hereby granted a waiver from 

the Buy American requirements of 

Section 1605(a) of Public Law 111–5 for 

the purchase of a 42-inch by 24-inch 

AWWA C153 cement lined mechanical 

joint reducer tee fitting from a 

manufacturer outside of the U.S. This 

supplementary information constitutes 

the detailed written justification 

required by Section 1605(c) for waivers 

based on a finding under subsection (b). 

Authority: Pub. L. 111–5, section 1605 

Dated: May 21, 2010. 

Dennis J. McLerran, 

Regional Administrator EPA, Region 10. 

[FR Doc. 2010–13619 Filed 6–7–10; 8:45 am] 

BILLING CODE 6560–50–P 

FARM CREDIT SYSTEM INSURANCE 

CORPORATION 

Farm Credit System Insurance 

Corporation Board; Regular Meeting 

AGENCY: Farm Credit System Insurance 

Corporation. 

SUMMARY: Notice is hereby given of the 

regular meeting of the Farm Credit 

System Insurance Corporation Board 

(Board). 

DATES: The meeting of the Board will be 

held at the offices of the Farm Credit 

Administration in McLean, Virginia, on 

June 10, 2010, from 1 p.m. until such 

time as the Board concludes its 

business. 

FOR FURTHER INFORMATION CONTACT: 

Roland E. Smith, Secretary to the Farm 

Credit System Insurance Corporation 

Board, (703) 883–4009, TTY (703) 883– 

4056. 

ADDRESSES: Farm Credit System 

Insurance Corporation, 1501 Farm 

Credit Drive, McLean, Virginia 22102. 

SUPPLEMENTARY INFORMATION: Parts of 

this meeting of the Board will be open 

to the public (limited space available) 

and parts will be closed to the public. 

In order to increase the accessibility to 

Board meetings, persons requiring 

assistance should make arrangements in 

advance. The matters to be considered 

at the meeting are: 

Closed Session 

• FCSIC Report on System 

Performance 

Open Session 

A. Approval of Minutes 

• March 25, 2010 (Open and Closed) 

B. Business Reports 

• FCSIC Financial Report 

• Report on Insured Obligations 

• Quarterly Report on Annual 

Performance Plan 

C. New Business 

• Policy Statement Concerning 

Appraisals 

• Mid-Year Review of Insurance 

Premium Rates 

• FCSIC Strategic Plan FY 2010–2015 

Dated: June 2, 2010. 

Roland E. Smith, 

Secretary, Farm Credit System Insurance 

Corporation Board. 

[FR Doc. 2010–13605 Filed 6–7–10; 8:45 am] 

BILLING CODE 6710–01–P 

FEDERAL RESERVE SYSTEM 

Agency Information Collection 

Activities: Announcement of Board 

Approval Under Delegated Authority 

and Submission to OMB 

SUMMARY: Background. Notice is hereby 

given of the final approval of proposed 

information collections by the Board of 

Governors of the Federal Reserve 

System (Board) under OMB delegated 

authority, as per 5 CFR 1320.16 (OMB 

Regulations on Controlling Paperwork 

Burdens on the Public). Board-approved 

collections of information are 

incorporated into the official OMB 

inventory of currently approved 

collections of information. Copies of the 

Paperwork Reduction Act Submission, 

supporting statements and approved 

collection of information instrument(s) 

are placed into OMB’s public docket 

files. The Federal Reserve may not 

conduct or sponsor, and the respondent 

is not required to respond to, an 

information collection that has been 

extended, revised, or implemented on or 

after October 1, 1995, unless it displays 

a currently valid OMB control number. 

FOR FURTHER INFORMATION CONTACT: 

Federal Reserve Board Clearance 

Officer—Michelle Shore—Division of 

Research and Statistics, Board of 

Governors of the Federal Reserve 

System, Washington, DC 20551 (202– 

452–3829). 

OMB Desk Officer—Shagufta 

Ahmed—Office of Information and 

Regulatory Affairs, Office of 

Management and Budget, New 

Executive Office Building, Room 10235, 

Washington, DC 20503. 

Final approval under OMB delegated 

authority to discontinue the following 

report: 

Report title: Survey of Financial 

Management Behaviors of Military 

Personnel. 

Agency form number: FR 1375. 

OMB control number: 7100–0307. 

Frequency: Semi-annually. 

Reporters: Military personnel. 

Estimated annual reporting hours: 

2,640 hours. 
PUBLIC

Exhibit B 
































PUBLIC

Exhibit C 
PUBLIC

Exhibit D 
__________________________________________ 

 

 

 

 

 

 

UNITED STATES OF AMERICA 

BEFORE THE FEDERAL TRADE COMMISSION 

PUBLIC

) 

In the Matter of ) 

) 

McWANE, INC., ) DOCKET NO. 9351 

a corporation, and )
 

) 

STAR PIPE PRODUCTS, LTD., )

 a limited partnership. )
 

_________________________________________ ) 

COMPLAINT COUNSEL’S FIRST SET OF REQUESTS 

FOR PRODUCTION OF DOCUMENTS TO RESPONDENT
 

MCWANE, INC. (NUMBERS 1-23) 

REQUESTS FOR PRODUCTION 

Pursuant to the Federal Trade Commission’s Rules of Practice, 16 C.F.R. §3.37, and the 

Definitions and Instructions set forth below, Complaint Counsel hereby requests that Respondent 

McWane, Inc. produce within 30 days all documents, electronically stored information, and other 

things in its possession, custody, or control responsive to the following requests. 

1. All financial statements, budgets, and other financial reports regularly prepared by 

or for the Respondent as a whole or any part thereof, including but not limited to, operating 

statements, balance sheets, income statements, profit and loss statements, cost center reports, 

statements of earnings, operating performance objectives, and productivity reports that Relate to 

any Relevant Product. 

2. All Documents Relating to the Respondent’s or any other Person’s pricing Plans, 

pricing policies, pricing forecasts, pricing strategies, or any other pricing decisions Relating to 

any Relevant Product. 

3. All Documents Relating to the price catalogues, list prices, multipliers, discounts, 

allowances, rebates, bids, or output of Respondent or of any Competitor that Relate to the sale of 

any Relevant Product, including but not limited to, any request for special pricing, project 

pricing, or job pricing. 

4. All Documents Relating to the Respondent’s or any other Person=s Plans Relating 

to the sale or marketing of any Relevant Product, including but not limited to, business Plans, 

short term and long range strategies and objectives; budgets and financial projections; expansion 

-1-
PUBLIC

or retrenchment Plans; research and development efforts; and presentations to management 

committees, executive committees, and boards of directors. 

5. All Documents Relating to any Communications between Respondent and any 

other Competitor, or between and among any Competitors, Related to any Relevant Product, 

including but not limited to, letters, texts, e-mails, drafts, notes, diaries, calendars, appointment 

books, trip or travel logs, expense reports, receives, telephone logs, phone records, phone bills, 

and similar materials. 

6. All Documents Relating to any Communications between Respondent and any 

other Competitor, or between and among any Competitor, Related to DIFRA, including but not 

limited to, e-mails, drafts, notes, diaries, calendars, appointment books, trip or travel logs, 

expense reports, receives, telephone logs, phone records, phone bills, and similar materials. 

7. All Documents Sufficient to Show the title or position, last known home and work 

address, email address(es), and cellular and landline telephone number(s) for each current or 

former employee of Respondent. This request does not seek Documents or information Related 

to e-mail addresses or phone numbers that are solely for the personal use of the employee. 

8. All Documents Relating to DIFRA, including but not limited to, the DIFRA 

Information Exchange. 

9. All Documents since January 1, 2003, that Relate to any actual, potential, 

contemplated or proposed acquisition, joint venture, merger, or alliance by or among any 

Competitor. 

10. All Documents that Relate to any actual, potential, contemplated or proposed sale 

or distribution Agreement of any Domestic Relevant Product by Respondent to any Competitor. 

11. All Documents Relating to any actual, potential, contemplated, or 

proposed capital expenditures exceeding $5,000 that Relate to the development, Manufacture, or 

distribution of any Relevant Product, and all Documents Relating to actual, potential, 

contemplated, or proposed expenditures for patterns, molds, and Related equipment, irrespective 

of cost. 

12. All Documents that Relate to any compilation or publication by the United States 

Bureau of Labor Statistics (“BLS”) or by any other third party of data pertaining, in whole or in 

part, to any Relevant Product, including all submissions of any data Relating to any Relevant 

Product to BLS for or on behalf of Respondent. 

13. All Documents Relating to any Exclusive Dealing Arrangement, including but not 

limited to, Communication between Respondent and any other Competitor, or between 

Respondent and any distributor or customer. 

14. All Documents that Relate to any form of competition in the Manufacture, 

importation, distribution or sale of any Relevant Product. 

-2-
PUBLIC

15. All Documents Relating to the actual, potential, contemplated or proposed Plan of 

Respondent or of any Competitor to begin, resume, expand, reduce, or discontinue the 

Manufacture, importation, sale or resale of any Relevant Product. 

16. All Documents Relating to the ability of any Consumer to substitute any other 

product for any Relevant Product, including but not limited to, the impact that such substitution 

had or might have on any Competitor’s decisions regarding price and output for any Relevant 

Product. 

17. All Documents that Relate to the ability of any Consumer to substitute any 

Imported Relevant Product for any Domestic Relevant Product, including but not limited to, any 

waivers of any “Buy American” provisions, and any impact that such substitution had or might 

have on any Competitor’s decisions regarding price and output for any Relevant Product. 

18. All Documents that Relate to the Effect of any “Buy American” provision on 

Respondent’s or on any Competitor’s pricing, sale, output, profit, marketing, or cost of any 

Relevant Product. 

19. All Documents Relating to the distribution of any Relevant Product, including but 

not limited to, Documents Relating to: 

a.	 the methods, channels, strategies, means, or policies of distributing any Relevant 

Product to wholesale distributors, contractors, or end users; 

b.	 the utility, efficiencies, cost savings, advantages or disadvantages in selling any 

Relevant Product through wholesale distributors; 

c.	 the ability, availability, or likelihood of any wholesale distributor to sell or 

distribute any Relevant Product to other wholesale distributors; 

d.	 the feasibility, utility, efficiencies, cost savings, advantages or disadvantages in 

any Competitor selling any Relevant Product directly to contractors or end users; 

e.	 any alternative channels of distribution for any Relevant Product actually or 

potentially available to any Competitor; and 

f.	 any wholesale distributor that does not distribute the Company’s Relevant 

Products. 

20. All Documents Sufficient to Show the name and address of all distributors to 

whom the Company sells any Relevant Product, and the amount (in tons and in dollars) of 

Domestic Relevant Product and Imported Relevant Product sold to each distributor. 

21. All Documents that Relate to Respondent’s estimated and actual costs, at the 

production facility (plant) level, of producing or manufacturing each Relevant Product, including 

all fixed and variable cost inputs such as the quantity and unit cost of materials, direct labor 

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inputs, direct energy inputs, and any other cost of manufacturing incurred to produce a unit of 

any Relevant Product. For any allocated or shared costs, produce all Documents detailing the 

allocation and itemization of the costs so allocated or shared. 

22. All Documents that Relate to any allegation, investigation, lawsuit, or settlement 

Relating to any claim that any Competitor violated the Federal Trade Commission Act, or any 

federal, state, or foreign antitrust law, in connection with the Manufacture, sale, marketing, or 

provision of any Relevant Product. 

23. All Documents identified by the Company in its responses to Interrogatories in 

this litigation. 

DEFINITIONS 

1.	 The terms “McWane,” “Company” or “Respondent” mean Respondent McWane, Inc., its 

directors, officers, trustees, employees, attorneys, agents, accountants, consultants, and 

representatives, its domestic and foreign parents, predecessors, divisions, subsidiaries, 

affiliates, partnerships and joint ventures, and the directors, officers, trustees, employees, 

attorneys, agents, consultants, and representatives of its domestic and foreign parents, 

predecessors, divisions, subsidiaries, affiliates, and partnerships and joint ventures. 

2.	 The terms “Agreement” or “Contract” mean any oral, written, or implied contract, 

arrangement, understanding, or Plan, whether formal or informal, between two or more 

Persons, together with all modifications or amendments thereto. 

3.	 The terms “and” and “or” have both conjunctive and disjunctive meanings. 

4.	 The term “Communication” means any transmittal, exchange, transfer, or dissemination 

of information, regardless of the means by which it is accomplished, and includes all 

communications, whether written or oral, and all discussions, meetings, telephone 

communications, or email contacts. 

5.	 The term “Competitor” means each and every Person actually or potentially engaged in 

the Manufacture or importation of any Relevant Product for sale or resale within the 

United States, including without limitation, McWane, Star, Sigma, and Serampore 

Industries Private, Ltd. 

6.	 The term “Computer Files” includes information stored in, or accessible through, 

computer or other information retrieval systems. Thus, the Respondent should produce 

Documents that exist in machine-readable form, including Documents stored in personal 

computers, portable computers, workstations, minicomputers, mainframes, servers, 

backup disks and tapes, archive disks and tapes, and other forms of offline storage, 

whether on or off company premises. If the Respondent believes that the required search 

of backup disks and tapes and archive disks and tapes can be narrowed in any way that is 

consistent with the Commission’s need for Documents and information, you are 

encouraged to discuss a possible modification to this instruction with the Commission 

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representatives identified on the last page of this request. The Commission representative 

will consider modifying this instruction to: 

a.	 exclude the search and production of files from backup disks and tapes and 

archive disks and tapes unless it appears that files are missing from files that exist 

in personal computers, portable computers, workstations, minicomputers, 

mainframes, and servers searched by the Respondent; 

b.	 limit the portion of backup disks and tapes and archive disks and tapes that needs 

to be searched and produced to certain key individuals, or certain time periods or 

certain specifications identified by Commission representatives; or 

c.	 include other proposals consistent with Commission policy and the facts of the 

case. 

7.	 The term “Containing” means containing, describing, or interpreting in whole or in part. 

8.	 The term “DIFRA” means the Ductile Iron Fittings Research Association, its directors, 

officers, trustees, employees, attorneys, agents, accountants, consultants, and 

representatives. 

9.	 The term “DIFRA Information Exchange” means the submission, aggregation, 

transmittal and receipt of sales information Relating to any Relevant Products through 

DIFRA. 

10.	 The terms “Discuss” or “Discussing” mean in whole or in part constituting, Containing, 

describing, analyzing, explaining, or addressing the designated subject matter, regardless 

of the length of the treatment or detail of analysis of the subject matter, but not merely 

referring to the designated subject matter without elaboration. A document that 

“Discusses” another document includes the other document itself. 

11.	 The term “Documents” means all Computer Files and written, recorded, and graphic 

materials of every kind in the possession, custody, or control of the Respondent. The term 

“Documents” includes, without limitation: electronic mail messages; electronic 

correspondence and drafts of documents; metadata and other bibliographic or historical 

data describing or Relating to documents created, revised, or distributed on computer 

systems; copies of documents that are not identical duplicates of the originals in that 

Person’s files; and copies of documents the originals of which are not in the possession, 

custody, or control of the Respondent. 

Unless otherwise specified, the term “Documents” excludes (a) bills of lading, invoices, 

purchase orders, customs declarations, and other similar documents of a purely 

transactional nature; (b) architectural Plans and engineering blueprints; and (c) 

documents solely Relating to environmental, tax, human resources, OSHA, or ERISA 

issues. 

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12.	 The term “Documents Sufficient to Show” means both documents that are necessary and 

documents that are sufficient to provide the specified information. If summaries, 

compilations, lists, or synopses are available that provide the information being 

requested, these may be provided in lieu of the underlying documents. 

13.	 The term “Domestic Relevant Product” means any ductile iron pipe fitting, of any size, 

shape or configuration, as well as accompanying accessories, lining and coating, that was 

Manufactured or otherwise produced within the United States. 

14.	 The terms “each,” “any,” and “all” mean “each and every.” 

15.	 The term “Effect” means the actual, intended, forecast, desired, predicted, or 

contemplated consequence or result of an action or Plan. 

16.	 The term “Exclusive Dealing Arrangement” includes any proposed or actual Agreement, 

arrangement, policy, program, or practice of McWane or Sigma (i) that requires any 

customer to refrain from purchasing or to limit its purchases of any Relevant Products of 

any Competitor, (ii) that conditions the provision of any benefit to any customer on 

refraining from or limiting its purchases of any Relevant Products of any Competitor, 

(iii) that threatens the imposition of any adverse consequences for any customer that 

purchases or does not limit its purchases of any Relevant Products from any Competitor, 

or (iv) that extends a benefit to a customer for purchasing a certain dollar amount, 

quantity, or percentage of any Relevant Product from McWane or Sigma. 

17.	 The term “Imported Relevant Product” means any ductile iron pipe fitting, of any size, 

shape or configuration, as well as accompanying accessories, lining and coating, that was 

Manufactured or otherwise produced outside of the United States. 

18.	 The terms “Manufacture” or “Manufacturer” includes a Person’s use of their own 

productive assets as well as the productive assets of any other Person, including 

contracting for the use of those assets. 

19.	 The term “Person” includes the Company, and means any natural person, corporate 

entity, partnership, association, joint venture, governmental entity, trust, or any other 

organization or entity engaged in commerce. 

20.	 The terms “Plan” or “Plans” mean tentative and preliminary proposals, strategies, 

recommendations, analyses, reports, or considerations, whether or not precisely 

formulated, finalized, authorized, or adopted. 

21.	 The terms “Relate” or “Relating to” mean in whole or in part Discussing, constituting, 

commenting, Containing, concerning, embodying, summarizing, reflecting, explaining, 

describing, analyzing, identifying, stating, referring to, dealing with, or in any way 

pertaining to.The term “Relevant Product” means both Domestic Relevant Products and 

Imported Relevant Products, and either of these individually. In response to a 

Specification calling for the production of Documents concerning the Relevant Products, 

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produce Documents that contain the specified information for either or both of the 

Relevant Products, stated separately as applicable. 

22.	 The term “Sigma” means Sigma Corporation, its directors, officers, trustees, employees, 

attorneys, agents, accountants, consultants, and representatives, its domestic and foreign 

parents, predecessors, divisions, subsidiaries, affiliates, partnerships and joint ventures, 

and the directors, officers, trustees, employees, attorneys, agents, consultants, and 

representatives of its domestic and foreign parents, predecessors, divisions, subsidiaries, 

affiliates, and partnerships and joint ventures. 

23.	 The term “Star” means Star Pipe Products, Ltd., its directors, officers, trustees, 

employees, attorneys, agents, accountants, consultants, and representatives, its domestic 

and foreign parents, predecessors, divisions, subsidiaries, affiliates, partnerships and joint 

ventures, and the directors, officers, trustees, employees, attorneys, agents, consultants, 

and representatives of its domestic and foreign parents, predecessors, divisions, 

subsidiaries, affiliates, and partnerships and joint ventures. 

INSTRUCTIONS 

1.	 All references to year refer to calendar year. Unless otherwise specified, each of the 

specifications calls for documents and/or information for each of the years from January 

1, 2007, to the present. Where information is requested, provide it separately for each 

year. Where yearly data is not yet available, provide data for the calendar year to date. If 

calendar year information is not available, supply the Company’s fiscal year data 

indicating the twelve month period covered, and provide the Company’s best estimate of 

calendar year data. 

2.	 Respondent need not produce responsive documents that Respondent has previously 

produced to the Commission in relation to the prior investigation, FTC No. 101-0080. 

Respondent must produce all other responsive documents, including any otherwise 

responsive documents that may have been produced by Respondent to the 

Commission in relation to any other investigation conducted by the Commission. 

3.	 This request for documents shall be deemed continuing in nature so as to require 

production of all documents responsive to any specification included in this request 

produced or obtained by the Respondents up to forty-five (45) calendar days prior to the 

date of the Company’s full compliance with this request. 

4.	 Forms of Production: the Respondent shall submit documents as instructed below absent 

written consent signed by Complaint Counsel. 

(1) Documents stored in electronic or hard copy format in the ordinary course of 

business shall be submitted in electronic format provided that such copies are 

true, correct, and complete copies of the original documents: 

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(a) Submit Microsoft Access, Excel, and PowerPoint in native format with 

extracted text and metadata; 

(b) Submit all other documents other than those identified in subpart (1)(a) in 

image format with extracted text and metadata; and 

(c) Submit all hard copy documents in image format accompanied by OCR. 

(2) For each document submitted in electronic format, include the following metadata 

fields and information: 

(a) For loose documents stored in electronic format other than email: 

beginning Bates or document identification number, ending Bates or 

document identification number, page count, custodian, creation date and 

time, modification date and time, last accessed date and time, size, 

location or path file name, and MD5 or SHA Hash value; 

(b) For emails: beginning Bates or document identification number, ending 

Bates or document identification number, page count, custodian, to, from, 

CC, BCC, subject, date and time sent, Outlook Message ID (if applicable), 

child records (the beginning Bates or document identification number of 

attachments delimited by a semicolon); 

(c) For email attachments: beginning Bates or document identification 

number, ending Bates or document identification number, page count, 

custodian, creation date and time, modification date and time, last 

accessed date and time, size, location or path file name, parent record 

(beginning Bates or document identification number of parent email), and 

MD5 or SHA Hash value; and 

(d) For hard copy documents: beginning Bates or document identification 

number, ending Bates or document identification number, page count, and 

custodian. 

(3) If the Respondent intends to utilize any de-duplication or email threading 

software or services when collecting or reviewing information that is stored in the 

Company’s computer systems or electronic storage media in response to this 

request, or if the Company’s computer systems contain or utilize such software, 

the Respondent must contact a Commission representative to determine, with the 

assistance of the appropriate government technical officials, whether and in what 

manner the Respondent may use such software or services when producing 

materials in response to this request. 

(4) Submit electronic files and images as follows: 

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(a) For productions over 10 gigabytes, use IDE and EIDE hard disk drives, 

formatted in Microsoft Windows-compatible, uncompressed data in USB 

2.0 external enclosure; 

(b) For productions under 10 gigabytes, CD-R CD-ROM and DVD-ROM for 

Windows-compatible personal computers, and USB 2.0 Flash Drives are 

also acceptable storage formats; and 

(c) All documents produced in electronic format shall be scanned for and free 

of viruses. The Commission will return any infected media for 

replacement, which may affect the timing of the Company’s compliance 

with this request. 

(5) All documents responsive to this request, regardless of format or form and 

regardless of whether submitted in hard copy or electronic format: 

(a)	 Shall be produced in complete form, un-redacted unless privileged, and in 

the order in which they appear in the Company’s files and shall not be 

shuffled or otherwise rearranged. For example: 

i. If in their original condition hard copy documents were stapled, 

clipped or otherwise fastened together or maintained in file folders, 

binders, covers or containers, they shall be produced in such form, 

and any documents that must be removed from their original 

folders, binders, covers or containers in order to be produced shall 

be identified in a manner so as to clearly specify the folder, binder, 

cover or container from which such documents came; and 

ii.	 If in their original condition electronic documents were maintained 

in folders or otherwise organized, they shall be produced in such 

form and information shall be produced so as to clearly specify the 

folder or organization format; 

(b) If written in a language other than English, shall be translated into English, 

with the English translation attached to the foreign language document; 

(c)	 Shall be produced in color where necessary to interpret the document (if 

the coloring of any document communicates any substantive information, 

or if black-and-white photocopying or conversion to TIFF format of any 

document (e.g., a chart or graph), makes any substantive information 

contained in the document unintelligible, the Respondent must submit the 

original document, a like-colored photocopy, or a JPEG format image); 

(d) Shall be marked on each page with corporate identification and 

consecutive document control numbers; 

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(e) Shall be accompanied by an affidavit of an officer of the Respondent 

stating that the copies are true, correct and complete copies of the original 

documents; and 

(f) Shall be accompanied by an index that identifies: (i) the name of each 

Person from whom responsive documents are submitted; and (ii) the 

corresponding consecutive document control number(s) used to identify 

that Person’s documents, and if submitted in paper form, the box number 

Containing such documents. If the index exists as a computer file(s), 

provide the index both as a printed hard copy and in machine-readable 

form (provided that Commission representatives determine prior to 

submission that the machine-readable form would be in a format that 

allows the agency to use the computer files). The Commission 

representative will provide a sample index upon request. 

5.	 If any documents are withheld from production based on a claim of privilege, the 

Respondent shall provide, pursuant to 16 C.F.R. § 3.38A, a schedule which describes the 

nature of documents, communications, or tangible things not produced or disclosed, in a 

manner that will enable Complaint Counsel to assess the claim of privilege. 

6.	 If the Respondent is unable to answer any question fully, supply such information as is 

available. Explain why such answer is incomplete, the efforts made by the Respondent to 

obtain the information, and the source from which the complete answer may be obtained. 

If books and records that provide accurate answers are not available, enter best estimates 

and describe how the estimates were derived, including the sources or bases of such 

estimates. Estimated data should be followed by the notation “est.” If there is no 

reasonable way for the Respondent to make an estimate, provide an explanation. 

7.	 If documents responsive to a particular specification no longer exist for reasons other 

than the ordinary course of business or the implementation of the Company’s document 

retention policy but the Respondent has reason to believe have been in existence, state the 

circumstances under which they were lost or destroyed, describe the documents to the 

fullest extent possible, state the specification(s) to which they are responsive, and identify 

Persons having knowledge of the content of such documents. 

8.	 Any questions you have relating to the scope or meaning of anything in this request or 

suggestions for possible modifications thereto should be directed to Thomas H. Brock at 

(202) 326-2813. The response to the request shall be addressed to the attention of 

Thomas H. Brock, Federal Trade Commission, 601 New Jersey Avenue, N.W., 

Washington, D.C. 20001, and delivered between 8:30 a.m. and 5:00 p.m. on any business 

day to the Federal Trade Commission. 

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February 21,2012 By: 

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/~ ;il'(~ Edward Hassi, Esq. 

Geoffrey M. Green, Esq. 

Linda Holleran, Esq. 

Thomas H. Brock, Esq. 

Michael 1. Bloom, Esq. 

Jeanine K. Balbach, Esq. 

J. Alexander Ansaldo, Esq. 

Andrew K. Mann, Esq. 

Counsel Supporting the Complaint 

Bureau of Competition 

Federal Trade Commission 

Washington, D.C. 20580 

Telephone: (202) 326-2470 

Facsimile: (202) 326-3496 

Electronic mail: ehassi@ftc.gov 

PUBLIC
 

 

 

 

CERTIFICATE OF SERVICE
 

PUBLIC

This is to certify that on February 21, 2012, I served via electronic mail delivery a copy 

of the foregoing document to: 

Joseph A. Ostoyich 

Andreas Stargard 

Baker Botts L.L.P. 

The Warner 

1299 Pennsylvania Ave., N.W. 

Washington, D.C. 20004 

(202) 639-7700 

joseph.ostoyich@bakerbotts.com 

andreas.stargard@bakerbotts.com 

J. Alan Truitt 

Thomas W. Thagard III 

Maynard Cooper and Gale PC 

1901 Sixth Avenue North 

2400 Regions Harbert Plaza 

Birmingham, AL 35203 

(205) 254-1000 

atruitt@maynardcooper.com 

tthagard@maynardcooper.com 

Counsel for Respondent McWane, Inc. 

Gregory S.C. Huffman 

William Katz 

Nicole Williams 

Brian Stoltz 

Thompson and Knight LLP 

One Arts Plaza 

1722 Routh Street, Suite 1500 

Dallas, TX 75201 

(214) 969-1700 

Gregory.Huffman@tklaw.com 

William.Katz@tklaw.com 

Nicole.Williams@tklaw.com 

Brian.Stoltz@tklaw.com 

Counsel for Respondent Star Pipe Prodcuts, LTD 

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February 21,2012 By: 

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/~;{{t£~ Linda Holleran, Esq. 

Federal Trade Commission 

Bureau of Competition 

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