33408 Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 / Notices

15See United States v. BNS, Inc. 858 F.2d at 463;

United States v. National Broadcasting Co., 449 F.

Supp. 1127, 1143 (C.D. Cal. 1978); United States v.

Gillette Co., 406 F. Supp. at 716. See also United

States v. American Cyanamid Co., 719 F.2d 558,

565 (2d Cir. 1983).

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

see also Microsoft, 56 F.3d at 1460–62.

Precedent requires that

the balancing of competing social and

political interests affected by a proposed

antitrust consent decree must be left, in the

first instance, to the discretion of the

Attorney General. The court’s role in

protecting the public interest is one of

insuring that the government has not

breached its duty to the public in consenting

to the decree. The court is required to

determine not whether a particular decree is

the one that will best serve society, but

whether the settlement is ‘‘within the reaches

of the public interest.’’ More elaborate

requirements might undermine the

effectiveness of antitrust enforcement by

consent decree.

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

(citations omitted) (emphasis added.15

The proposed Final Judgment,

therefore, should not be reviewed under

a standard of whether it is certain to

eliminate every anticompetition effect of

a particular practice or whether it

mandates certainty of free competition

in the future. Court approval of a final

judgment requires a standard more

flexible and less strict than the standard

required for a finding of liability. ‘‘[A]

proposed decree must be approved even

if it falls short of the remedy the court

would impose on its own, as long as it

falls within the range of acceptability or

is ‘within the reaches of the public

interest.’ ’’ United States v. American

Tel. & Tel. Co., 552 F. Supp. 131, 150

(D.D.C. 1982) (citations omitted)

(quoting United States v. Gillette Co.,

406 F. Supp 713, 716 (D. Mass. 1975)),

aff’d sub nom, Maryland v. United

States, 460 U.S. 10Q1 (1983), United

States v. Alcan Aluminum. Ltd., 605 F.

Supp. 619, 622 (W.D. Ky. 1985).

VIII. Determinative Documents

There are no determinative materials

of documents within the meaning of the

APPA that were considered by the

United States in formatting the

proposed Final Judgment.

Dated: June 8, 1998.

Respectfully submitted,

Jade Alice Eaton*

Andrew K. Rosa

Trial Attorneys.

U.S. Department of Justice, Antitrust Division,

Transportation, Energy & Agriculture Section,

325 Seventh Street, N.W., Suite 500,

Washington, DC 20004, (202) 307–6316.

*Counsel of Record.

Certificate of Service

I hereby certify that I have caused a

copy of the foregoing Competitive

Impact Statement to be served on

counsel for defendant in this manner in

the manner set forth below:

By first class mail, postage prepaid:

Steven C. Sunshine,

Shearman & Sterling, 801 Pennsylvania

Avenue, N.W., Washington, DC 20004.

Jade Alice Eaton,

Antitrust Division, U.S. Department of Justice,

325 Seventh Street, N.W., Suite 500,

Washington, DC 20530, (202) 307–6456, (202)

616–2441(Fax).

[FR Doc. 98–16218 Filed 6–17–98; 8:45 am]

BILLING CODE 4410–11–M

DEPARTMENT OF JUSTICE

Antitrust Division

[Civil No. 96–2031]

Proposed Modified Final Judgment

and Memorandum In Support of

Modification

Notice is hereby given that a Modified

Final Judgment, Motion to Modify Final

Judgment, Memorandum in Support of

the Modification of the Final Judgment,

Stipulation and Order, and Hold

Separate Stipulation and Order have

been filed with the United States

District Court in the District of

Columbia, in United States et al v. USA

Waste Services, Inc., et al., Civil No. 96–

2031.

The existing Final Judgment stems

from a 1996 acquisition of Sanifill, Inc.,

by USA Waste. The Final Judgment was

entered to resolve competitive concerns

that the Antitrust Division had about the

impact of the acquisition in Houston,

Texas. Pursuant to the Final Judgment,

USA Waste divested Sanifill’s small

container commercial hauling assets

and a USA Waste disposal site in

Houston and sold 2,000,000 tons of air

space rights for ten years at two USA

Waste landfills in the Houston area. The

assets were purchased by

TransAmerican Waste Industries, Inc.

On January 26, 1998, TransAmerican

and USA Waste entered into an

agreement whereby TransAmerican

would be merged into USA Waste, and

the Houston assets TransAmerican

purchased from USA Waste would be

owned by USA Waste.

On May 5, 1998, the United States

filed a proposed Modified Final

Judgment to modify the Final Judgment

in this case. The United States

maintained that the proposed

acquisition of TransAmerican’s

commercial hauling and disposal assets

in the Houston area would violate the

original Final Judgment. The proposed

Modified Final Judgment requires USA

Waste to divest the TransAmerican

commercial small container and

disposal assets in the Houston area and

provide 2,000,000 tons of air space

rights for ten years at two USA Waste

landfills in the Houston area.

The Hold Separate Stipulation and

Order and the Stipulation and Order

ensure that the provisions of the

proposed Modified Final Judgment will

be observed and that the assets to be

divested will be held separate and

maintained as a viable competitive

entity until the divestiture takes place.

Public comments on the proposed

Modified Final Judgment should be

directed to J. Robert Kramer, Chief,

Litigation II Section, Antitrust Division,

United States Department of Justice,

1401 H Street, NW, Suite 3000,

Washington, DC 20530 (telephone: 202/

307–0924). Such comments and

responses thereto will be filed with the

Court.

Constance K. Robinson,

Director of Operations & Merger Enforcement.

Stipulation and Order

To further the objectives of the

Modified Final Judgment filed with the

Court in this matter, it is stipulated by

and between the United States of

America (‘‘United States’’), the State of

Texas (‘‘Texas’’), USA Waste Services,

Inc. (‘‘USA Waste’’), and TransAmerican

Waste Industries, Inc.

(‘‘TransAmerican’’), by their respective

attorneys, as follows:

1. The Court has jurisdiction over the

subject matter of this action and over

the United States, Texas, USA Waste,

and TransAmerican, and venue of this

action is proper in the United States

District Court for the District of

Columbia.

2. The parties stipulate that a

Modified Final Judgment in the form

hereto attached may be filed and

entered by the Court, upon the motion

of any party or upon the Court’s own

motion, at any time after completion of

the procedures specified in the United

States’ Explanation of Procedures filed

herewith without further notice to any

party or other proceedings, provided

that the United States and Texas have

not withdrawn their consent, which

they may do at any time before the entry

of the proposed Modified Final

Judgment by serving notice thereof on

USA Waste and TransAmerican and by

filing that notice with the Court.

3. USA Waste and TransAmerican

shall abide by and comply with the

provisions of the proposed Modified

Final Judgment pending entry of the
Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 / Notices 33409

proposed Modified Final Judgment, or

until expiration of time for all appeals

of any court ruling declining entry of

the proposed Modified Final Judgment,

and shall, from the date of the signing

of this Stipulation, comply with all the

terms and provisions of the proposed

Modified Final Judgment as though they

were in full force and effect as an order

of the Court.

4. This Stipulation shall apply with

equal force and effect to any amended

proposed Modified Final Judgment

agreed upon in writing by the parties

and submitted to the Court.

5. In the event (a) the United States

and Texas have withdrawn their

consent, as provided in paragraph 2

above, or (b) the proposed Modified

Final Judgment is not entered pursuant

to this Stipulation, the time has expired

for all appeals of any Court ruling

declining entry of the proposed

Modified Final Judgment, and the Court

has not otherwise ordered continued

compliance with the terms and

provisions of the proposed Modified

Final Judgment, then the United States,

Texas, USA Waste, and TransAmerican

are released from all further obligations

under this Stipulation, and the making

of this Stipulation shall be without

prejudice to any party in this or any

other proceeding.

6. USA Waste and TransAmerican

represent that the divestiture ordered in

the proposed Modified Final Judgment

can and will be made, and that USA

Waste and TransAmerican will later

raise no claim of hardship or difficulty

as grounds for asking the Court to

modify any of the divestiture provisions

contained therein.

Dated: May 5, 1998.

For the United States:

Frederick H. Parmenter

Virginia Bar No.: 18184, U.S. Department of

Justice, Antitrust Division, 1401 H Street,

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

(202) 307–0620.

For the State of Texas

Dan Morales

Texas Attorney General.

Mark Tobey

Assistant Attorney General, Chief, Antitrust

Section, Texas Bar No.: 20082960.

Kim Van Winkle

Assistant Attorney General, Texas Bar No.:

24003104.

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

Box 12548, Austin, Texas 78711–2546, (512)

463–2185.

For USA Waste Services, Inc.

James R. Weiss

District of Columbia Bar No.: 379798,

Preston, Gates, Ellis & Rouvelas Meeds, 1735

New York Avenue, N.W., Suite 500,

Washington, D.C. 20006–5209, (202) 662–

8425.

For TransAmerican Waste Industries, Inc.

J. David Green

Sr. Vice President & General Counsel,

TransAmerican Waste Industries, Inc., 10554

Tanner Road, Houston, Texas 77041, (713)

956–1212.

Order

It is So Ordered, this 6th day of May,

1998.

Gladys Kessler,

United States District Judge.

Modified Final Judgment

Whereas, the United States of

America (‘‘United States’’), the State of

Texas (‘‘Texas’’), and the

Commonwealth of Pennsylvania

(‘‘Pennsylvania’’) filed a Complaint in

this action on August 30, 1996 and a

Final Judgment was entered on

December 17, 1996.

And whereas, the United States,

Texas, USA Waste Services, Inc. (‘‘USA

Waste’’) and TransAmerican Waste

Industries, Inc. (‘‘TransAmerican’’), by

their respective attorneys have

consented to the entry of this Modified

Final Judgment without trial or

adjudication of any issue of fact or law

herein, and without this Modified Final

Judgment constituting any evidence

against or an admission by the United

States, Texas, USA Waste, or

TransAmerican with respect to any

issue of law or fact herein;

And whereas, USA Waste and

TransAmerican have agreed to be bound

by the provisions of this Modified Final

Judgment pending its approval by the

Court.

And whereas, prompt and certain

divestiture of the Houston Divestiture

Assets to assure that competition is not

substantially lessened in the Houston

Area is the essence of this agreement;

And whereas, USA Waste and

TransAmerican have represented to the

United States and Texas that the

divestiture required below can and will

be made and that they will later raise no

claims of hardship or difficulty as

grounds for asking the Court to modify

any of the divestiture provisions

contained below;

And whereas, the United States and

Texas believe that entry of this Modified

Final Judgment is in the Public Interest;

Now, therefore, it is hereby Ordered,

Adjudged, and Decreed that this

Modified Final Judgment, shall modify

the provisions in the Final Judgment

relating to the Houston Divestiture

Assets and the Houston area in the

following ways:

I. Definitions

As used in this Modified Final

Judgment:

A. Solid waste hauling means the

collection and transportation to a

disposal site of municipal solid waste

(but not construction and demolition

waste; medical waste; organic waste;

special waste, such as contaminated

soil; sludge; or recycled materials) from

residential, commercial and industrial

customers.

B. Solid waste disposal means the

disposal of Type 1 or 4 solid waste into

disposal sites approved by the Texas

Natural Resources Conservation

Commission for Type 1 or Type 4 waste.

Type 1 waste is municipal solid waste

and Type 4 waste is dry waste such as

construction and demolition waste.

C. USA Waste means USA Waste

Services, Inc., a Delaware corporation

with its headquarters in Houston. Texas,

and its successors and assigns, their

subsidiaries, affiliates, directors,

officers, managers, agents and

employees.

D. TransAmerican means

TransAmerican Waste Industries, Inc., A

Delaware corporation with its

headquarters in Houston, Texas and its

successors, and assigns, their

subsidiaries, affiliates, directors,

officers, managers, agents and

employees.

E. Houston Area means Harris

County, Texas; Chambers County,

Texas; Brazoria County, Texas; Fort

Bend County, Texas; Montgomery

County, Texas; Walker County, Texas;

and Galveston County, Texas.

F. Houston Hauling Assets means the

front load commercial business of

TransAmerican that provides solid

waste hauling services in the Houston

Area. These assets include all customer

lists, contracts and accounts, including
33410 Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 / Notices

all contracts for disposal of solid waste

at disposal facilities, all trucks,

containers, equipment, material, and

supplies associated with these assets,

and the garages, including all associated

equipment, located at 10554 Tanner

Road, Houston, Texas, 77041 and 999

Ashland, Channelview, Texas 77530.

G. Sunray Assets means the operating,

permitted Type 4 landfill (also known

as the North County Landfill) and other

related assets of TransAmerican with an

office at 2015 Wyoming in League City,

Texas. These assets include the current

permit Number 1849 and permit

application Number 1849A filed with

the Texas Natural Resources

Conservation Commission, all

customers lists, contracts and accounts,

including all equipment, material, and

supplies associated with these assets.

H. Airspace Assets means the right to

dispose, over a ten-year period of up to

a total of 2,000,000 tons of municipal

solid waste in amounts of up to a total

of 270,000 tons per year at the

Hazelwood Landfill located at 4971 TriCity Beach Road in Baytown, Texas and

the Brazoria County Landfill located at

10310 FM 523 in Angleton, Texas.

I. Houston Divestiture Assets refers to

the Houston Hauling assets, Sunray

Assets, and Airspace Assets.

J. Small Container means a 1 to 10

cubic yard container.

II. Jurisdiction

This Court has jurisdiction over the

subject matter of this action and over

the United States, Texas, USA Waste,

and TransAmerican and venue of this

action is proper in the United States

District Court for the District of

Columbia.

III. Applicability

A. The provisions of this Modified

Final Judgment apply to USA Waste and

TransAmerican, their successors and

assignees, their subsidiaries, affiliates,

directors, officers, managers, agents, and

employees, and all other persons in

active concert or participation with any

of them who shall have received actual

notice of this Modified Final Judgment

by personal service or otherwise.

B. USA Waste and TransAmerican

shall require, as a condition of the sale

or other disposition of all or

substantially all of the Houston

Divestiture Assets, that the acquiring

party or parties agree to be bound by the

provisions of this Modified Final

Judgment.

IV. Divestiture of Assets

A. USA Waste and TransAmerican

agree within 90 days from the filing of

this Modified Final Judgment to divest

the Houston Divestiture Assets, unless

the United States, after consultation

with Texas, consents that only some

portion of the Houston Divestiture

Assets need be divested. USA Waste

and TransAmerican further agree to

notify the United States and Texas in

writing immediately when they have

completed the divestitures.

B. Unless the United States, after

consultation with Texas, otherwise

consents, divestiture under Section

IV.A, or by the trustee appointed

pursuant to Section V, shall be

accomplished in such a way as to satisfy

the United States, in its sole

determination after consultation with

Texas, that the Houston Hauling Assets

can and will be operated by the

purchaser as a viable, ongoing business

engaged in solid waste hauling, and that

the Sunray Assets can and will be

operated by the purchases as a viable,

ongoing business engaged in solid waste

disposal in the Houston Area.

Divestiture under Section IV.A or by the

trustee, shall be made to a purchaser or

purchasers for whom it is demonstrated

to the satisfaction of the United States,

after consultation with Texas, that (1)

the purchase or purchases is or are for

the purpose of competing effectively in

solid waste hauling, dry waste disposal,

or both, and (2) the purchaser or

purchasers has or have the managerial,

operational, and financial capability to

compete effectively in solid waste

hauling and/or disposal.

C. In accomplishing the divestitures

ordered by this Modified Final

Judgment, USA Waste and

TransAmerican promptly shall make

known, by usual and customary means,

the availability of the Houston

Divestiture Assets described in this

Modified Final Judgment. USA Waste

and TransAmerican shall inform any

person making an inquiry regarding a

possible purchase that the sale is being

made pursuant to this Modified Final

Judgment and provide such person with

a copy of this Modified Final Judgment.

USA Waste and TransAmerican shall

also offer to furnish to all bona fide

prospective purchasers, subject to

customary confidentiality assurances,

all information regarding the Houston

Divestiture Assets customarily provided

in a due diligence process except such

information subject to attorney-client or

work-product privileges. USA Waste

and TransAmerican shall make

available such information to the United

States and Texas at the same time such

information is made available to any

other person. In giving notice of the

availability of the Houston Hauling

Assets, defendants shall not exclude any

persons bound by any non-compete

obligations to Sanifill, Inc., or

TransAmerican.

D. USA Waste and TransAmerican

shall not require of the purchaser or

purchasers, as a condition of sale, that

any current employee of the Houston

Divestiture Assets be offered or

guaranteed continued employment after

the divestiture.

E. USA Waste and TransAmerican

shall take all reasonable steps to

accomplish quickly the divestiture

contemplated by this Modified Final

Judgment.

F. As part of the sale of the Airspace

Assets, USA Waste and TransAmerican

will include an agreement to accept

waste from the purchaser or anyone

designated by the purchaser to dispose

of waste at the landfills. As agents of the

purchaser, USA Waste and

TransAmerican will operate the gate,

scale house, and disposal area under

terms and conditions no less favorable

than those provided to USA Waste’s and

TransAmerican’s vehicles or the

vehicles of any municipality in the

Houston Area, except as to price and

credit terms.

V. Appointment of Trustee

A. In the event that USA Waste and

TransAmerican have not divested all of

their assets required by Section IV.A by

the time set forth in Section IV.A, the

Court shall, on application of the United

States, after consultation with Texas,

appoint a trustee selected by the United

States to effect the divestiture required

by Section IV.A. After the appointment

of a trustee becomes effective, only the

trustee shall have the right to sell the

assets required to be divested pursuant

to Section IV.A. The trustee shall have

the power and authority to accomplish

the divestiture at the best price then

obtainable upon a reasonable effort by

the trustee, subject to the provisions of

Section VI of this Final Judgment, and

shall have such other powers as the

Court shall deem appropriate. USA

Waste and TransAmerican shall not

object to a sale by the trustee on any

grounds other than the trustee’s

malfeasance, or on the grounds that the

sale is contrary to the express terms of

this Modified Final Judgment. Any such

objections by USA Waste or

TransAmerican must be conveyed in

writing to the United States, Texas, and

the trustee within ten (10) days after the

trustee has provided the notice required

under Section VI.

B. The trustee shall serve the cost and

expense of USA Waste and

TransAmerican, on such terms and

conditions as the Court may prescribe,

and shall account for all monies derived

from the sale of the assets sold by the
Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 / Notices 33411

trustee and all costs and expenses so

incurred. After approval by the Court of

the trustee’s accounting, including fees

for its services, all remaining money

shall be paid to USA Waste and

TransAmerican and the trust shall then

be terminated. The compensation of

such trustee shall be reasonable and

based on a fee arrangement providing

the trustee with an incentive based on

the price and terms of the divestiture

and the speed with which it is

accomplished.

C. USA Waste and TransAmerican

shall use their best efforts to assist the

trustee in accomplishing the required

divestiture. The trustee and any

consultants, accountants, attorneys, and

other persons retained by the trustee

shall have full and complete access to

the personnel, books, records, and

facilities of the Houston Divestiture

Assets, and USA Waste and

TransAmerican shall develop financial

or other information relevant to such

assets as the trustee may reasonably

request, subject to reasonable protection

for trade secret or other confidential

research, development, or commercial

information. USA Waste and

TransAmerican shall take no action to

interfere with or to impede the trustee’s

accomplishment of the divestiture.

D. After its appointment, the trustee

shall file monthly reports with the

United States, Texas, USA Waste,

TransAmerican, and the Court setting

forth the trustee’s efforts to accomplish

the divestiture ordered under this

Modified Final Judgment. If the trustee

has not accomplished such divestiture

within six months after its appointment,

the trustee shall thereupon promptly file

with the Court a report setting forth (1)

the trustee’s efforts to accomplish the

required divestiture, (2) the reasons, in

the trustee’s judgment, why the required

divestiture has not been accomplished,

and (3) the trustee’s recommendations.

The trustee shall at the same time

furnish such report to the United States,

Texas, USA Waste, and TransAmerican,

who shall each have the right to be

heard and to make additional

recommendations consistent with the

purpose of the trust. The Court shall

thereafter enter such orders as it shall

deem appropriate in order to carry out

the purpose of the trust, which may, if

necessary, include extending the trust

and the term of the trustee’s

appointment by a period requested by

the United States, after consultation

with Texas.

E. USA Waste and TransAmerican

shall give 30 days notice to the United

States and Texas prior to acquiring any

interest that is not otherwise reportable

under the Hart-Scott-Rodino Act in any

assets, capital stock, or voting securities,

other than in the ordinary course of

business, of any person that, at any time

during the twelve months immediately

preceding the acquisition, was engaged

in the solid waste hauling industry in

the Houston Area where the person had

small container revenues in excess of

$500,000 per year or total revenues in

excess of $1 million per year. However,

nothing herein shall preclude USA

Waste or TransAmerican from acquiring

less than five (5) percent of the stock of

a publicly traded company.

F. USA Waste and TransAmerican

shall give 30 days notice to the United

States and Texas prior to acquiring any

interest that is not otherwise reportable

under the Hart-Scott-Rodino Act in any

assets, capital stock, or voting securities,

other than in the ordinary course of

business, of any person that, at any time

during the twelve months immediately

preceding the acquisition, was engaged

in the municipal solid waste or dry

waste disposal industry in the Houston

Area, where the revenues of that person,

when aggregated with the revenues of

any person or persons acquired in the

previous six months, exceed the

revenue limits of paragraph E above.

However, nothing herein shall preclude

USA Waste or TransAmerican from

acquiring less than five (5) percent of

the stock of a publicly traded company.

G. The purchaser or purchasers of the

Houston Divestiture Assets, or any of

them, shall not, without the prior

written consent of the United States,

after consultation with Texas, sell any of

those assets to, or combine any of those

assets with, those of USA Waste or

TransAmerican during the life of this

Modified Final Judgment. Furthermore,

the purchaser or purchasers of the

Houston Divestiture Assets, or any of

them, shall notify the United States and

Texas 45 days in advance of any

proposed sale of all or substantially all

of the assets, or change in control over

those assets, acquired pursuant to this

Modified Final Judgment.

VI. Notification

A. USA Waste, TransAmerican, or the

trustee, whichever is then responsible

for effecting the divestiture required

herein, shall notify the United States

and Texas of any proposed divestiture

required by Section IV or V of this

Modified Final Judgment. If the trustee

is responsible, it shall similarly notify

USA Waste and TransAmerican. The

notice shall set forth the details of the

proposed transaction and list the name,

address, and telephone number of each

person not previously identified who

offered or expressed an interest or desire

to acquire any ownership interest in the

Houston Divestiture Assets or any of

them, together with full details of the

same. Within fifteen (15) days after

receipt of the notice, the United States

and TransAmerican may request

additional information concerning the

proposed divestiture, the proposed

purchaser and any other potential

purchaser. USA Waste and

TransAmerican or the trustee shall

furnish the additional information

within fifteen (15) days of the receipt of

the request. Within thirty (30) days after

receipt of the notice or within fifteen

(15) days after receipt of the additional

information, whichever is later, the

United States, after consultation with

Texas, shall notify in writing USA

Waste and TransAmerican and the

trustee, if there is one, if it objects to the

proposed divestiture. If the United

States fails to object within the period

specified, or if the United States notifies

in writing USA Waste and

TransAmerican and the trustee, if there

is one, that it does not object, then the

divestiture may be consummated,

subject only to USA Waste’s and

TransAmerican’s limited right to object

to the sale under Section V.A. Upon

objection by the United States, after

consultation with Texas, or by USA

Waste and TransAmerican under

Section V.A, the proposed divestiture

shall not be accomplished unless

approved by the Court.

B. Thirty (30) days from the date

when USA Waste and TransAmerican

consummate the acquisition, but in no

event later than May 30, 1998, and every

thirty (30) days thereafter until the

divestiture has been completed, USA

Waste and TransAmerican shall deliver

to the United States and Texas a written

report as to the fact and manner of

compliance with Section IV of this

Modified Final Judgment. Each such

report shall include, for each person

who during the preceding thirty (30)

days made an offer, expressed an

interest or desire to acquire, entered into

negotiations to acquire, or made an

inquiry about acquiring any ownership

interest in the Houston Divestiture

Assets or any of them, the name,

address, and telephone number of that

person and a detailed description of

each contact with that person during

that period. USA Waste and

TransAmerican shall maintain full

records of all efforts made to divest the

Divestiture Assets or any of them.

VII. Financing

USA Waste and TransAmerican shall

not finance all or any part of any

purchase made pursuant to Section IV

or V of this Modified Final Judgment

without the prior written consent of the
33412 Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 / Notices

United States, after consultation with

Texas.

VIII. Preservation of Assets

Until the divestitures required by the

Modified Final Judgment have been

accomplished:

A. USA Waste and TransAmerican

shall take all steps necessary to ensure

that the Houston Hauling Assets will be

maintained and operated in the ordinary

course of business and consistent with

past practices, and shall (1) maintain all

insurance policies and all permits that

are required for the operation of the

assets, and (2) maintain books of

account and records in the usual,

regular, and ordinary manner and

consistent with past practices.

B. USA Waste and TransAmerican

shall take all steps necessary to ensure

that the Sunray Assets will be

maintained and operated as an

independent, ongoing, economically

viable and active competitor in the

provision of dry waste disposal services

in the Houston Area, with management

operations, books, records and

competitively-sensitive sales, marketing

and pricing information and decisionmaking kept separate and apart from,

and not influenced by, that of

TransAmerican’s solid waste hauling

and disposal business.

C. USA Waste and TransAmerican

shall use all reasonable efforts to

maintain and increase sales of solid

waste hauling and disposal services

provided by the Houston Divestiture

Assets, and they shall maintain at 1997

or previously approved levels,

whichever is higher, promotional,

advertising, sales, marketing and

merchandising support for such

services.

D. USA Waste and TransAmerican

shall take all steps necessary to ensure

that the Houston Divestiture Assets are

fully maintained in operable condition,

and shall maintain and adhere to

normal or previously approved repair,

improvement and maintenance

schedules for the Houston Divestiture

Assets.

E. USA Waste and TransAmerican

shall not, except as part of a divestiture

approved by the United States and

Texas, remove, sell or transfer any

Houston Divestiture Assets, other than

solid waste hauling and disposal

services provided in the ordinary course

of business.

F. USA Waste and TransAmerican

shall take no action that would

jeopardize the sale of the Houston

Divestiture Assets.

G. USA Waste and TransAmerican

shall appoint a person with oversight

responsibility for the Houston

Divestiture Assets to insure compliance

with this section of the Modified Final

Judgment.

IX. Compliance Inspection

For the purpose of determining or

securing compliance with this Modified

Final Judgment, and subject to any

legally recognized privilege, from time

to time.

A. Duly authorized representatives of

the United States and Texas including

consultants and other persons retained

by the plaintiffs, shall, upon the written

request of the Assistant Attorney

General in charge of the Antitrust

Division or the Attorney General of the

State of Texas, respectively, and on

reasonable notice to USA Waste and

TransAmerican made to its principal

offices, be permitted:

1. Access during office hours to

inspect and copy all books, ledgers,

accounts, correspondence, memoranda,

and other records and documents in the

possession or under the control of USA

Waste and TransAmerican, which have

counsel present, relating to any matters

contained in this Modified Final

Judgment; and

2. Subject to the reasonable

convenience of USA Waste and

TransAmerican and without restraint or

interference from them, to interview

their directors, officers, employees, and

agents who may have counsel present,

regarding any such matters.

B. Upon the written request of the

Assistant Attorney General in charge of

the Antitrust Division or the Attorney

General of the State of Texas,

respectively, made to USA Waste and

TransAmerican at their principal

offices, USA Waste and TransAmerican

shall submit such written reports, under

oath if requested, with respect to any of

the matters contained in this Modified

Final Judgment as may be requested.

C. No information nor any documents

obtained by the means provided in this

Section IX shall be divulged by any

representative of the United States or

the Office of the Attorney General of

Texas to any person other than a duly

authorized representative of the

Executive Branch of the United States or

of the Office of the Attorney General of

Texas, except in the course of legal

proceedings to which the United States

or Texas is a party (including grand jury

proceedings), or for the purpose of

securing compliance with this Modified

Final Judgment, or as otherwise

required by law.

D. If at the time information or

documents are furnished by USA Waste

and TransAmerican to the United States

and Texas, USA Waste and

TransAmerican represent and identify

in writing the material in any such

information or documents for which a

claim of protection may be asserted

under rule 26(c)(7) of the Federal Rules

of Civil Procedure, and USA Waste and

TransAmerican mark each pertinent

page of such material, ‘‘Subject to claim

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

Federal Rules of Civil Procedure,’’ then

the United States and Texas shall give

ten (10) days notice to USA Waste and

TransAmerican prior to divulging such

material in any legal proceeding (other

than a grand jury proceeding) to which

USA Waste or TransAmerican is not a

party.

X. Retention of Jurisdiction

Jurisdiction is retained by this Court

for the purpose of enabling any of the

parties to this Modified Final Judgment

to apply to this Court at any time for

such further orders and directions as

may be necessary or appropriate for the

construction, implementation, or

modification of any of the provisions of

this Modified Final Judgment, for the

enforcement of compliance herewith,

and for the punishment of any

violations hereof.

XI. Termination

This Modification Final Judgment

will expire on the tenth anniversary of

the date of its entry.

XII. Public Interest

Entry of this Modified Final Judgment

is in the public interest.

Dated: lllllllllllllllll

lllllllllllllllllllll

United States District Judge

Certificate of Service

I hereby certify that copies of the

Modified Final Judgment, Motion of the

United States and Texas for

Modification of the Final Judgment,

United States’ Explanation of

Procedures, Hold Separate Stipulation

and Order, Stipulation and Order, and

Memorandum of the United States in

Support of Modification of the Final

Judgment have been served upon USA

Waste Services, Inc., TransAmerican

Waste Industries, Inc., and the Office of

the Attorney General of Texas, by

placing copies of the foregoing

documents in the U.S. Mail, directed to

each of the foregoing parties at the

addresses given below, this 6th day of

May, 1998.

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

Weiss, Esq., Preston, Gates, Ellis &

Rouvelas Meeds, Suite 500, 1735 New

York Avenue, NW., Washington, DC

20006–5209.

TransAmerican Waste Industries, Inc., J.

David Green, Esq., Sr. Vice President
Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 / Notices 33413

and General Counsel, 10554 Tanner

Road, Houston, Texas 77041.

Mark Tobey, Assistant Attorney

General, Chief, Antitrust Section,

Office of the Attorney General of

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

78711–2546.

Frederick H. Parmenter,

U.S. Department of Justice, Antitrust Division,

1401 H Street, NW., Suite 3000, Washington,

DC 20530.

Memorandum of the United States and

Texas in Support of Modification of the

Final Judgment

The United States of America

(‘‘United States’’) and the State of Texas

(‘’Texas’’) submit this memorandum in

support of their motion to modify the

Final Judgment entered in the abovecaptioned matter. Filed with the

memorandum is a Stipulation and

Order, a Hold Separate Stipulation and

Order, a Motion for Modification of the

Final Judgment, an Explanation of

Procedures, and a proposed Modified

Final Judgment. In accordance with the

provisions of the Stipulation and Order,

USA Waste Services, Inc. (‘‘USA

Waste’’) and TransAmerican Waste

Industries, Inc. (‘‘TransAmerican’’) have

agreed to be bound by the Modified

Final Judgment following

consummation of the merge and

pending entry of the Modified Final

Judgment. Similarly, in accordance with

the Hold Separate Stipulation and

Order, USA Waste and TransAmerican

have agreed to hold the Houston

Divestiture Assets separate and

maintain them as competitively viable

entities after the consummation of the

merger and entry of the Modified Final

Judgment. The proposed Modified Final

Judgment only modifies the provisions

of the Final Judgment relating to the

Houston, Texas area. It does not have

any impact, and is not meant to have

any impact, on the provisions relating to

Johnstown, Pennsylvania. The

modifications are necessary to ensure

that the original intent of the Final

Judgment, to prevent competition from

being lessened in the Houston refuse

hauling and disposal markets, is

preserved. Consequently, the

modifications are in the public interest.

I. Background

On August 30, 1996, the United States

filed a civil antitrust Complaint in the

above-styled action alleging that the

proposed acquisition of the voting stock

of Sanifill, Inc. (‘‘Sanifill’’) by USA

Waste would violate Section 7 of the

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

Complaint alleged that the combination

of these competitors would lessen

competition substantially in the

provision of small containerized waste

hauling services and landfill disposal

services in the Houston, area, among

other geographic locations. The Houston

area encompasses Harris County, Texas;

Chambers County, Texas; Brazoria

County, Texas; Fort Bend Count, Texas;

Montgomery County, Texas; Walker

County, Texas; and Galveston County,

Texas, including the municipalities

located, in whole or in part, in those

counties (‘‘Houston market’’).

When the Complaint was filed, the

United States also filed a proposed

settlement that was set forth in a

proposed Final Judgment that permitted

USA Waste to complete its acquisition

of Sanifill, but required certain

divestitures that would preserve

competition in the Houston area. On

December 17, 1996 after the comment

period required by the Antitrust

Penalties & Procedures Act (‘‘APPA’’),

15 U.S.C. 16, had passed, the Court

entered the Final Judgment finding that

it was in the public interest. On January

31, 1997, various waste hauling and

disposal assets located in the Houston

area where purchased by

TransAmerican from USA Waste.

Section V.G. of the Final Judgment

required: (1) the purchaser of the

divested hauling and disposal assets

(e.g., Trans-American) to give the

United States and Texas 45 days notice

in advance of any sale of the assets, and

(2) the purchaser would not sell the

divested assets to be defendants (e.g.,

USA Waste) during the life of the

decree.

On February 26, 1998, TransAmerican

notified the United States and Texas, as

required by the Final Judgment, that

TransAmerican had undertake to merge

itself with USA Waste. The proposed

merger of TransAmerican with USA

Waste would permit USA Waste to

acquire the TransAmerican Houston

assets that TransAmerican was

prohibited from selling to USA Waste by

the Final Judgment. On April 9, 1998,

the United States sent a letter to USA

Waste and TransAmerican notifying

them that based on its investigation and

consultation with Texas, it could not

give its consent to USA Waste’s

proposed purchase of the Houston

assets. The United States and Texas

were concerned that the acquisition

would substantially lessen competition

in the provision of small containerized

waste hauling services and landfill

disposal services in the Houston area.

USA Waste and TransAmerican were

substantially informed that the United

States would undertake to enforce the

Final Judgment if concerns about small

containerized hauling and landfills in

the Houston market were not resolved.

The assets in the Houston area which

were of concern to the United States

that USA Waste would require through

the merger were: (1) the TransAmerican

frontload commercial assets (‘‘Houston

Hauling Assets‘‘). (2) a TransAmerican

Type 4 landfill and related assets (‘‘the

Sunray Assets’’), and (3) the rights

TransAmerican had acquire to dispose

of 2,000,000 tons of municipal solid

waster (‘‘MSW’’) for ten years at a

maximum rate of 270,000 tons a year at

the USA Waste Hazlewood Landfill

located at 4791 Tri-City Beach Road,

Baytown, Texas 77520 and the USA

Waste Brazoria County Landfill located

at 10310 FM 523, Angleton, Texas.

(‘‘Airspace Assets’’). Together the

Houston Hauling Assets, Sunray Assets,

and Airspace Assets are known as the

Houston Divestiture Assets.

To prevent competition from being

substantially lessened for small

containerized hauling and landfill

disposal in the Houston area, and to

permit USA Waste to complete

TransAmerican’s merger with USA

Waste, the United States has filed with

the Court a proposed settlement that

supplements the Final Judgment entered

by the Court on December 17, 1996. It

requires USA Waste to divest the

Houston Divestiture Assets.

The proposed Modified Final

Judgment orders USA Waste to divest

the Houston Divestiture Assets. In

addition, USA Waste must complete the

divestiture of the Houston Divestiture

Assets within ninety (90) days after the

date on which the proposed Modified

Final Judgment was filed (i.e., May 6,

1998), in accordance with the

procedures specified therein.

The Stipulation and Order, Hold

Separate Stipulation and Order, and

proposed Modified Final Judgment

require USA Waste to ensure that, until

the divestitures mandated by the

proposed Modified Final Judgment have

been accomplished, the Houston

Hauling Assets and the Sunray Assets

will be maintained and operated as an

independent, ongoing, economically

viable and active competitor. USA

Waste must preserve and maintain the

assets to be divested as salable, ongoing

concerns, with competitively sensitive

business information and decisionmaking divorced from that of USA

Waste. USA Waste will appoint a person

or persons to monitor and ensure its

compliance with these requirements of

the proposed Modified Final Judgment.

The United States, Texas, USA Waste,

and TransAmerican have stipulated that

the proposed Modified Final Judgment

may be entered after compliance with

the 60-day comment period provided for

in the United States’ Explanation of
33414 Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 / Notices

Procedures. Entry of the proposed

Modified Final Judgment would

terminate any need for action regarding

the proposed merger of TransAmerican

with USA Waste, except that the Court

would retain jurisdiction to construe,

modify, or enforce the provisions of the

proposed Modified Final Judgment and

to punish violations thereof.

II. Description of the Events Giving Rise

to the Proposed Modified Final

Judgment

USA Waste is a Delaware corporation

with its principal office in Houston,

Texas. USA Waste is engaged in

providing nonhazardous solid waste

hauling and/or disposal in 49 states and

the District of Columbia. In 1997, USA

Waste had total revenues of over $1.6

billion.

TransAmerican is a Delaware

corporation with its principal office in

Houston, Texas. TransAmerican is

engaged in providing nonhazardous

solid waste hauling and/or disposal in

five states. In 1996 TransAmerican had

total revenues of over $16 million.

On January 26, 1998, USA Waste

entered into an agreement and plan of

merger whereby TransAmerican’s stock

would be acquired for approximately

$125,470,000. This transaction is of

concern to the United States and Texas

because it would take place in the

highly concentrated Houston small

container hauling and landfill disposal

industries and violate the December 17,

1996 Final Judgment entered in this

action.

The Transaction’s Effects in the

Houston Market

A. The Solid Waste Hauling Industry

The United States asserts that small

containerized hauling services and

landfill disposal services constitute

lines of commerce, or relevant product

markets, for antitrust purposes, and that

the Houston area constitutes an

appropriate section of the country, or

relevant geographic market. The United

States maintains that the effect of USA

Waste’s acquisition may be to lessen

competition substantially in the

provision of small containerized hauling

services and landfill disposal services in

the Houston market. As a result, when

USA Waste undertook to acquire

TransAmerican, the United States took

the position that USA Waste could not

obtain the small containerized hauling

and landfill assets it divested to

TransAmerican 18 months ago to

resolve anticompetitive concerns that

arose in August 1996, when USA Waste

purchased Sanifill.

Solid waste hauling involves the

collection of paper, food, construction

material and other solid waste from

homes, businesses and industries, and

the transporting of that waste to a

landfill or other disposal site. These

services may be provided by private

haulers directly to residential,

commercial and industrial customers, or

indirectly through municipal contracts

and franchises.

Service to commercial customers

accounts for a large percentage of total

hauling revenues. Commercial

customers include restaurants, large

apartment complexes, retail and

wholesale stores, office buildings, and

industrial parks. These customers

typically generate a substantially larger

volume of waste than that generated by

residential customers. Waste generated

by commercial customers is generally

placed in metal containers of one to ten

cubic yards provided by their hauling

company. One to ten cubic yard

containers are called ‘‘small

containers.’’ Small containers are

collected primarily by front-end load

vehicles that lift the containers over the

front of the truck by means of a

hydraulic hoist and empty them into the

storage section of the vehicle, where the

waste is compacted. Specially-rigged

rear-end load vehicles can also be used

to service some small container

customers, but these trucks generally are

not as efficient as front-end load

vehicles and are limited in the size of

containers they can safely handle.

Front-end load vehicles can drive

directly up to a container and hoist the

container in a manner similar to a

forklift hoisting a pallet; the containers

do not need to be manually rolled into

position by a truck crew as with a rearend load vehicle. Service to commercial

customers that use small containers is

called ‘‘small containerized hauling

service.’’

Solid waste hauling firms also

provide service to residential and

industrial (or ‘‘roll-off’’) customers.

Residential customers, typically

households and small apartment

complexes that generate small amounts

of waste, use noncontainerized solid

waste hauling service, normally placing

their waste in plastic bags or trash cans

at curbside. Rear-end load vehicles are

generally used to collect waste from

residential customers and from those

commercial customers that generate

relatively small quantities of solid

waste, similar in amount and kind to

those generated by residential

customers. Generally, rear-end loaders

use a two or three person crew to

manually load the waste into the rear of

the vehicle.

Industrial or roll-off customers

include factories and construction sites.

These customers either generate noncompactible waste, such as concrete or

building debris, or very large quantities

of compactible waste. They deposit their

waste into very large containers (usually

20 to 40 cubic yards) that are loaded

onto a roll-off truck and transported

individually to the disposal site where

they are emptied before being returned

to the customer’s premises. Customers,

like shopping malls, use large, roll-off

containers with compactors. This type

of customer generally generates

compactible trash, like cardboard, in

very great quantities, it is more

economical for this type of customer to

use roll-off service with a compactor

than to use a number of small containers

picked up multiple times a week.

There are no practical substitutes for

small containerized hauling service.

Small containerized hauling service

customers will not generally switch to

noncontainerized service because it is

too impractical and costly for those

customers to bag and carry their trash to

the curb for hand pick-up. Small

containerized hauling service customers

also value the cleanliness and relative

freedom from scavengers afforded by

that service. Similarly, roll-off service is

much too costly and takes up too much

space for most small containerized

hauling service customers. Only

customers that generate the largest

volumes of solid waste can

economically consider roll-off service,

and for customers that do generate large

volumes of waste, roll-off service is

usually the only viable option.

Solid waste hauling services are

generally provided in very localized

areas. Route density (a large number of

customers that are close together) is

necessary for small containerized solid

waste hauling firms to be profitable. In

addition, it is not economically efficient

for trash hauling equipment to travel

long distances without collecting

significant amounts of waste. Thus, it is

not efficient for a hauler to serve major

metropolitan areas from a distant base.

Haulers, therefore, generally establish

garages and related facilities within

each major local area served.

The United States asserts that USA

Waste’s acquisition of TransAmerican

would substantially lessen competition

for the provisions of small containerized

hauling service in the Houston market.

Actual and potential competition

between USA Waste and

TransAmerican for the provision of

small containerized hauling service in

the Houston market will be eliminated.

USA Waste and TransAmerican are

two of the largest providers of small
Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 / Notices 33415

containerized hauling service in the

Houston market. In the Houston market,

USA Waste has 28 percent share and

TransAmerican has a 7 percent share.

The acquisition would give USA Waste

a 35 percent share of the market.

Solid waste hauling is an industry

highly susceptible to tacit or overt

collusion among competing firms. Overt

collusion has been documented in more

than a dozen criminal and civil antitrust

cases brought in the last decade and a

half. Such collusion typically involves

customer allocation and price fixing,

and where it has occurred, has been

shown to persist for many years.

The elimination of one of a small

number of significant competitors, such

as would occur as a result of the

proposed transaction in the alleged

market, significantly increases the

likelihood that consumers in these

markets are likely to face higher prices

or poorer quality service. A new entrant

cannot constrain the prices of larger

incumbents until it achieves minimum

efficient scale and operating efficiencies

comparable to the incumbent firms. In

small containerized hauling service,

achieving comparable operating

efficiencies requires achieving route

density comparable to existing firms,

which typically takes a substantial

period of time. A substantial barrier to

entry is created by the use of long-term

contracts coupled with selective pricing

reductions to specific customers to deter

new entrants into small containerized

hauling service and to hinder them in

winning enough customers to build

efficient routes. Further, even if a new

entrant endures and grows to a point

near minimum efficient scale, the

entrant will often be purchased by an

incumbent firm and will be removed as

a competitive threat.

B. Landfill Disposal Services

Most commercial solid waste is taken

by haulers to landfills for disposal.

Access to a suitable municipal solid

waste (‘‘MSW’’) landfill at a competitive

price is essential to a hauling company

performing commercial containerized

hauling service because disposal costs

account for approximately 30–50

percent of the revenues received for this

service. Suitable MSW landfills are

difficult and time consuming to obtain

because of the scarcity of appropriate

land, high capital cost, local resident

opposition, and government regulation.

Several years are required to process an

application, with no guarantee of

success.

In Texas, dry waste can be taken to

what is referred to as a dry waste (Type

4) landfill. Access to a suitable landfill

at a competitive price is essential to a

hauling company collecting dry waste

because disposal costs can account for

over 60% of the revenues for this

service. Dry waste landfills are difficult

and time consuming to obtain because

to permit and build a Type 4 landfill in

Texas, one must go through a process

similar to that for permitting a Type 1

landfill. Several years are required to

process an application, with no

guarantee of success.

TransAmerican’s merger with USA

Waste will substantially lessen

competition for landfill service in the

Houston market. Actual and potential

competition between USA Waste and

TransAmerican for the provision of

MSW and dry waste landfill service in

the Houston market will be eliminated.

USA Waste is the largest owner of dry

waste landfill services in the Houston

market. In the Houston area, there are 18

Type 4 landfills in the Houston area.

USA Waste has eleven dry waste

landfills (four operating) and

TransAmerican has one. Concerning

Type 1 MSW landfills, there are nine in

the Houston area that are owned by

three firms. Through the Final

Judgment, TransAmerican obtained

access to the USA Waste Type 1

landfills for a period of ten years

thereby assuring it disposal access for

the MSW it hauls.

As a result of the acquisition, the

concentration of dry waste landfill

services in the Houston market will be

substantially increased, which is likely

to result in price increases.

Furthermore, a small containerized

hauling competitor with guaranteed

access to Type 1 landfills will be

removed from the Houston area. In the

Houston market, there are no alternative

types of facilities available for the

disposal of either MSW waste or dry

waste. Although dry waste can be taken

to either a MSW or a dry waste landfill,

prices at the MSW landfill are

significantly higher than at the dry

waste landfill, so that MSW landfills are

not normally used for dry waste.

Accordingly, haulers are not likely to

switch to another disposal service

despite an increased concentration in

the ownership of MSW or dry landfills

and a likely price increase resulting

from the merger.

C. Harm to Competition as a

Consequence of the Acquisition

The United States asserts that the

transaction would have the following

effects, among others: competition for

the provision of small containerized

hauling service and landfill disposal

service in the Houston market will be

substantially lessened; actual and

potential competition between USA

Waste and TransAmerican in the

provision of small containerized hauling

service and landfill disposal service in

the Houston market will be eliminated;

and prices for small contianerized

hauling service and landfill disposal

service in the Houston market are likely

to increase above competitive levels.

III. Explanation of the Proposed

Modified Final Judgment

The provisions of the proposed

Modified Final Judgment are designed

to eliminate the anticompetitive effects

of the acquisition in small containerized

hauling services in the Houston market

by ensuring that the intent of the

provisions of the Final Judgment

relating to the Houston market and the

Houston Divestiture Assets entered by

the Court on December 17, 1996 are

enforced and a new, independent and

economically viable competitor is

established in the Houston market. The

proposed Modified Final Judgment

requires USA Waste and

TransAmerican, within 90 days of May

6, 1998, to divest, as viable ongoing

business, the Houston Hauling Assets,

Sunray Assets and the Airspace Assets.

The divestitures would include the

small containerized hauling service

assets, landfill disposal assets, and such

other assets as may be necessary to

ensure the viability of the small

container and landfill businesses. If

USA Waste and TransAmerican cannot

accomplish these divestitures within the

above-described period, the proposed

Modified Final Judgment provides that,

upon application (after consultation

with Texas) by the United States, the

Court will appoint a trustee to effect

divestiture.

The proposed Modified Final

Judgment provides that these assets

must be divested in such a way as to

satisfy the United States (after

consultation with Texas) that the

operations can and will be operated by

the purchaser or purchasers as viable,

ongoing businesses that can compete

effectively in the relevant market. USA

Waste and TransAmerican must take all

reasonable steps necessary to

accomplish the divestitures, shall

cooperate with bona fide prospective

purchasers and, if one is appointed,

with the trustee.

If a trustee is appointed, the proposed

Modified Final Judgment provides that

USA Waste and TransAmerican will pay

all costs and expenses of the trustee.

The trustee’s commission will be

structured so as to provide an incentive

for the trustee based on the price

obtained and the speed with which

divestiture is accomplished. After his or

her appointment becomes effective, the
33416 Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 / Notices

trustee will file monthly reports with

the United States, Texas, USA Waste,

TransAmerican and the Court, setting

forth the trustee’s efforts to accomplish

divestiture. At the end of six months, if

the divestiture has not been

accomplished, the trustee and the

United States, Texas, USA Waste, and

TransAmerican will make

recommendations to the Court which

shall enter such orders as appropriate in

order to carry out the purpose of the

trust, including extending the trust or

the term of the trustee’s appointment.

In addition, the proposed Modified

Final Judgment intends to eliminate the

anticompetitive effects of the

acquisition in the Houston Area market

for MSW disposal services by requiring

USA Waste and TransAmerican to sell

the rights to dispose of 2 million tons of

MSW waste over ten years at USA

Waste’s only two MSW landfills in the

area. The proposed Modified Final

Judgment limits the amount disposed of

in any one year to 270,000 tons and

requires that USA Waste will provide

the necessary services to dispose of the

waste to the purchaser or any agents

designated by the purchaser in a

nondiscriminatory manner. The

availability of this landfill capacity

helps to ensure the success of any entity

purchasing the Houston Hauling Assets

in competing with other haulers in the

Houston market.

Pursuant to its terms, the proposed

Modified Final Judgment mandates that

USA Waste and TransAmerican divest

TransAmerican’s sole dry waste (Type

4) landfill (the North County Landfill) in

the Houston area market. The

divestiture of the North County Landfill

will help moderate any possible

anticompetitive effect related to the

merger and its impact on dry waste

landfills in the Houston area market.

Finally, the requirement of the

proposed Modified Final Judgment that

USA Waste and TransAmerican provide

30 days written notice of any proposed

purchase of significant waste hauling or

disposal companies in the Houston

market ensures that the U.S. Department

of Justice and the State of Texas

General’s Office will be able to review,

consider and oppose if necessary any

future consolidation in the market for a

period of ten years.

IV. Modification is in the Public

Interest

Uncontested motions to modify the

Final Judgment are granted if the

proposed modification is within the

reaches of the public interest. See, e.g.,

United States v. Western Electric Co.,

993 F.2d 1572, 1576 (D.D.C. 1993)

(Citing United States v. Western Electric

Co., 900 F.2d 283, 307 (D.D.C. 1990)

(hereinafter Triennial Review)). In the

context of an uncontested motion to

modify an existing consent decree, the

‘‘public interest’’ standard ‘‘directs the

district court to approve an uncontested

modification so long as the resulting

array of rights and obligations is within

the zone of settlements consonant with

the public interest today.’’ United States

v Western Electric 1993 F.2d at 1576

(quoting Triennial Review, 900 F.2d at

307) (emphasis in original). Thus, ‘‘it is

not up to the court to reject an agreedon change simply because the proposal

diverged from its view of the public

interest. Rather, the court [is] bound to

accept any modification that the

Department (with the consent of third

parties, we repeat) reasonably regarded

as advancing the public interest.’’

United States v. Western Electric Co.,

993 F.2d at 1576. See also United States

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

62 (D.C. Cir. 1995); United States v.

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

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

United States v. BNS. Inc., 858 F.2d 456,

462 (9th Cir. 1988). Precedent requires

that the balancing of competing social

and political interests affected by a

proposed antitrust consent decree must

be left, in the first instance, to the

discretion of the Attorney General. The

court’s role in protecting the public

interest is one of insuring that the

government has not breached its duty to

the public in consenting to the decree.

The court is required to determine not

whether a particular decree is one that

will best serve society, but whether the

settlement is ‘within the reaches of the

public interest.’ More elaborate

requirements might undermine the

effectiveness of antitrust enforcement by

consent decree.

Bechtel, 648 F.2d at 666 (emphasis

added); See BNS, 858 F.2d at 463;

United States v. National Broadcasting

Co., 449 F. Supp. 1127, 1143 (C.D. Cal.

1978) See also Microsoft, 56 F.3d at

1461.

V. Conclusion

For all of the foregoing reasons, the

proposed modification is in the public

interest, and the motion to enter the

Modified Final Judgment should be

granted. Respectfully submitted.

Dated: May 5, 1998.

For the United States

Frederick H. Parmenter

Virginia Bar No.: 18184, Attorney, U.S.

Department of Justice, Antitrust Division,

1401 H Street, N.W., Washington, D.C. 20530,

(202) 307–0620.

For the States of Texas

Dan Morales,

Texas Attorney General.

Mark Tobey,

Assistant Attorney General, Chief, Antitrust

Section, Texas Bar No.: 20082960.

Kim Van Winkle,

Assistant Attorney General, Texas Bar No.:

24003104.

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

Box 12548, Austin, Texas 78711–2546, (512)

463–2185.

Motion of the United States and Texas

for Modification of The Final Judgment

The United States of America

(‘‘United States’’) and the State of Texas

(‘‘Texas’’) move this Court to modify the

Final Judgment in the above-captioned

matter as to the provisions relating to

the Houston Divestiture Assets and the

Houston area. This motion is based on

the following grounds:

I. Definitions

1. USA Waste means USA Waste

Services, Inc., a Delaware corporation

with its headquarters in Houston, Texas,

and its successors and assigns, their

subsidiaries, affiliates directors, officers,

managers, agents and employees.

2. Houston Area means Harris

County, Texas; Chambers County,

Texas; Brazoria County, Texas; Fort

Bend County, Texas; Montgomery

County, Texas; Walker County, Texas;

and Galveston County, Texas.

3. Houston Hauling Assets means the

frontload commercial business of

TransAmerican that provides solid

waste hauling services in the Houston

Area. These assets include all customer

lists, contracts and accounts, including

all contracts for disposal of solid waste

at disposal facilities, all trucks,

containers, equipment, material, and

supplies associated with these assets,

and the garages, including all associated

equipment, located at 10554 Tanner

Road, Houston, Texas 77041 and 999

Ashland, Channelview, Texas 77530.

4. Sunray Assets means the operating,

permitted Type 4 landfill (also known

as the North County Landfill) and other

related assets of TransAmerican with an

office at 2015 Wyoming in League City,

Texas. These assets include the current

permit Number 1849 and permit

application Number 1849A filed with

the Texas Natural Resource

Conservation Commission, all customer

lists, contracts and accounts, including
Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 / Notices 33417

all equipment, material, and supplies

associated with these assets.

5. Airspace Assets means the right to

dispose, over a ten-year period of up to

a total of 2,000,000 tons of municipal

solid waste in amounts of up to a total

of 270,000 tons per year at the

Hazlewood Landfill located at 4971 TriCity Beach Road in Baytown, Texas and

the Brazoria County Landfill located at

10310 FM 523 in Angleton, Texas.

6. Houston Divestiture Assets means

the Houston Hauling Assets, Sunray

Assets, and Airspace Assets.

II. Background and Objectives

1. On August 30, 1996, the United

Texas, and Pennsylvania filed a

complaint in the above-cationed case

alleging that USA Waste’s acquisition of

Sanifill, Inc. (‘‘Sanifill’’) violated

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

18. The complaint alleged that the

combination of USA Waste and Sanifill

would substantially lessen competition

in providing hauling and disposal

services in the Houston Area and

Johnstown, Pennsylvania.

2. On December 17, 1996, the Court

entered a Final Judgment which

directed the defendants to divest the

Houston Divestiture Assets and

undertake certain measure in Johnstown

to alleviate the competitive harm of the

acquisition.

3. The Houston Divestiture Assets

were purchased by TransAmerican on

January 31, 1997.

4. On January 26, 1998, USA Waste

entered into an agreement with

TransAmerican pursuant to which USA

Waste proposed to merge

TransAmerican with USA Waste. The

value of the proposed transaction is

approximately $125,470.000.

5. On February 26, 1998,

TransAmerican notified the United

States and Texas as required by the

Final Judgment that TransAmerican has

undertaken to merge itself with USA

Waste. Section V.G. of the Final

Judgment requires the purchaser of the

Houston Divestiture Assets (e.g.,

TransAmerican) to give the United

States and Texas 45 days notice in

advance of any sale of the Houston

Divestiture assets and that the purchaser

shall not sell the Houston Divestiture

Assets to the defendants (e.g., USA

Waste) during the life of the decree.

6. On April 9, 1998, the United States

sent a letter to USA Waste and

TransAmerican notifying them that

based on its investigation consultations

with Texas, it could not give its consent

to USA Waste’s proposed purchase of

the Houston assets.

7. USA Waste and TransAmerican

have agreed to the prompt and certain

divestiture of the Houston Divestiture

Assets as a viable business operation to

a third party or parties to assure that

competition is not substantially

lessened in the Houston Area.

8. For the purpose of accomplishing

the divestiture of the Houston

Divestiture Assets, USA Waste and

TransAmerican authorize the United

and Texas to state that they concur in

this motion.

9. The United States does not believe

that that proposed Modified Final

Judgment is subject to the Antitrust

Procedures and Penalties Act, 15 U.S.C.

16. However, the United States intends

to follow the comment procedures

outlined in the attached Explanation of

Procedures. After completion of the

procedures, the United States will file

another motion requesting that the

Court enter the attached Modified Final

Judgment.

Respectfully submitted.

Dated: May 5th, 1998

For the United States:

Frederick H. Parmenter,

Virginia Bar No.: 18184, U.S. Department of

Justice, Antitrust Division, 1401 H Street,

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

(202) 307–0620.

For The State of Texas

Dan Morales,

Texas Attorney General.

Mark Tobey,

Assistant Attorney General, Chief, Antitrust

Section, Texas Bar No.: 20082960.

Kim Van Winkle,

Assistant Attorney General, Texas Bar No.:

24003104.

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

Box 12548, Austin, Texas 78711–2546, (512)

463–2185.

Hold Separate Stipulation and Order

It is hereby stipulated and agreed by

and between the United States of

America, the State of Texas, USA Waste

Services, Inc., and TransAmerican

Waste Industries, Inc., subject to

approval and entry by the Court, that:

I. Definitions

As used in this Hold Separate

Stipulation and Order:

A. Solid waste hauling means the

collection and transportation to a

disposal site of municipal solid waste

(but not construction and demolition

waste; medical waste; organic waste;

special waste, such as contaminated

soil; sludge; or recycled materials) from

residential, commercial and industrial

customers.

B. USA Waste means USA Waste

Services, Inc., a Delaware corporation

with its headquarters in Houston, Texas,

and its successors and assigns, their

subsidiaries, affiliates, directors,

officers, managers, agents and

employees.

C. TransAmerican means

TransAmerican Waste Industries, Inc., a

Delaware corporation with its

headquarters in Houston, Texas and its

successors and assigns, their

subsidiaries, affiliates, directors,

officers, managers, agents and

employees.

F. Houston Area means Harris

County, Texas; Chambers County,

Texas; Brazoria County, Texas; Fort

Bend County, Texas; Montgomery

County, Texas; Walker County, Texas;

and Galveston County, Texas.

G. Houston Hauling Assets means the

frontload commercial business of

TransAmerican that provides solid

waste hauling services in the Houston

Area. These assets include all customer

lists, contracts and accounts, including

all contracts for disposal of solid waste

at disposal facilities, all trucks, and

containers, equipment, material, and

supplies associated with these assets,

and the garages, including all associated

equipment, located at 10554 Tanner

Road, Houston, Texas 77041 and 999

Ashland, Channelview, Texas 77530.

H. Sunray Assets means the operating,

permitted Type 4 landfill (also known

as the North County Landfill) and other

related assets of USA Waste with an

office at 2015 Wyoming in League City,

Texas. These assets include the current

permit Number 1849 and permit

application Number 1849A filed with

the Texas Natural Resource

Conservation Commission, all customer

lists, contracts and accounts, including

all equipment, material, and supplies

associated with these assets.

I. Airspace Assets means the right to

dispose, over a ten-year period of up to

a total of 2,000,000 tons of municipal

solid waste in amounts of up to a total

of 270,000 tons per year at the

Hazlewood Landfill located at 4971 TriCity Beach Road in Baytown, Texas and

the Brazoria County Landfill located at

10310 FM 523 in Angleton, Texas.

J. Houston Divestiture Assets means to

the Houston Hauling Assets, Sunray

Assets, and Airspace Assets.

II. Objectives

The Modified Final Judgment filed in

this case is meant to ensure USA

Waste’s prompt divestiture of the

Houston Divestiture Assets for the

purpose of maintaining a viable

competitor in the waste disposal and

hauling business in the Houston area to

remedy the effects that the United States

and Texas allege would otherwise result

from USA Waste’s proposed acquisition

of TransAmerican. This Hold Separate
33418 Federal Register / Vol. 63, No. 117 /Thursday, June 18, 1998 / Notices

Stipulation and Order ensures, prior to

such divestiture, that the Houston

Hauling Assets and the Sunray Assets

which are being divested be maintained

as independent, economically viable,

ongoing business concerns, and that

competition is maintained during the

pendency of the divestiture.

III. Hold Separate Provisions

Until the divestiture required by the

Modified Final Judgment has been

accomplished:

A. USA Waste shall preserve,

maintain, and operate the Houston

Hauling Assets and the Sunray Assets as

independent competitors with

management, sales, and operations held

entirely separate, distinct and apart

from those of USA Waste. USA Waste

shall not coordinate the marketing or

sale of its waste disposal and hauling

business with the waste disposal and

hauling business at the Houston Hauling

Assets and the Sunray Assets. Within

thirty (30) days of the entering of this

Order, USA Waste will inform the

United States and Texas of the steps

taken to comply with this provision.

B. USA Waste shall take all steps

necessary to ensure that the Houston

Hauling Assets and the Sunray Assets

will be maintained and operated as

independent, ongoing, economically

viable and active competitors in the

waste disposal and hauling business in

the Houston area; and that the

management of the Houston Hauling

Assets and the Sunray Assets will not be

influenced by USA Waste, and the

books, records, competitively sensitive

sales, marketing and pricing

information, and decision-making

associated with the Houston Hauling

Assets and the Sunray Assets will be

kept separate and apart from the

operations of USA Waste. USA Waste’s

influence over the Houston Hauling

Assets and the Sunray Assets shall be

limited to that necessary to carry out

USA Waste’s obligations under this

Order and the Modified Final Judgment.

C. USA Waste shall use all reasonable

efforts to maintain and increase waste

disposal and hauling sales at the

Houston Hauling Assets and the Sunray

Assets, and shall maintain at 1997 or

previously approved levels, whichever

are higher, promotional, advertising,

sales, technical assistance, marketing

and merchandising support for the

disposal and hauling of waste associated

with the Houston Hauling Assets and

the Sunray Assets.

D. USA Waste shall provide sufficient

working capital to maintain the Houston

Hauling Assets and the Sunray Assets as

economically viable, ongoing

businesses.

E. USA Waste shall take all steps

necessary to ensure that the Sunray

Assets are fully maintained in operable

condition at no lower than its current

rated capacity, and shall maintain and

adhere to normal repair and

maintenance schedules for the Houston

Hauling Assets and the Sunray Assets.

F. USA Waste shall not, except as part

of a divestiture approved by the United

States and Texas, remove, sell, lease,

assign, transfer, pledge or otherwise

dispose of any assets of the Houston

Hauling Assets and the Sunray Assets,

including intangible assets that relate to

the permits described in Section I of the

Modified Final Judgment.

G. USA Waste shall maintain, in

accordance with sound accounting

principles, separate, accurate and

complete financial ledgers, books and

records that report on a periodic basis,

such as the last business day of every

month, consistent with past practices,

the assets, liabilities, expenses, revenues

and income of the Houston Hauling

Assets and the Sunray Assets.

H. Except in the ordinary course of

business or as is otherwise consistent

with this Hold Separate Agreement,

USA Waste and TransAmerican shall

not hire and USA Waste and

TransAmerican shall not transfer or

terminate, or alter any current

employment or salary agreements for

any USA Waste or TransAmerican

employees who (I) on the date of the

signing of this Agreement, work at the

Houston Hauling Assets or the Sunray

Assets or (ii) are members of

management referenced in Section III(I)

of this Order.

I. Until such time as the Houston

Hauling Assets and the Sunray Assets

are divested, the Assets to be Divested

shall be managed by Ted Meyer of

TransAmerican. Ted Meyer shall have

complete managerial responsibility for

the Houston Hauling Assets and the

Sunray Assets, subject to the provisions

of this Order and the Modified Final

Judgment. In the event that Ted Meyer

is unable to perform his duties, USA

Waste shall appoint, subject to the

United States’ and Texas’ approval, a

replacement within ten (10) working

days. Should USA Waste fail to appoint

a replacement acceptable to the United

States and Texas within ten (10)

working days, the United States and

Texas shall appoint a replacement.

J. USA Waste shall take no action that

would interfere with the ability of any

trustee appointed pursuant to the

Modified Final Judgment to complete

the divestiture pursuant to the Modified

Final Judgment to a suitable purchaser.

K. this Hold Separate Stipulation and

Order shall remain in effect until

consummation of the divestiture

contemplated by the Modified Final

Judgment or until further Order of the

Court.

Dated: May 5, 1998.

For the United States:

Frederick H. Parmenter,

Virginia Bar No.: 18184, U.S. Department of

Justice, Antitrust Division, 1401 H Street,

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

(202) 307–0620.

For the State of Texas

Dan Morales,

Texas Attorney General.

Mark Tobey,

Assistant Attorney General, Chief, Antitrust

Section, Texas Bar No.: 20082960.

For USA Waste Services, Inc.

James R. Weiss,

District of Columbia Bar No.: 379798, Preston,

Gates, Ellis & Rouvelas Meeds, 1735 New

York Avenue, N.W., Suite 500, Washington,

D.C. 20006–5209, (202) 662–8425.

For TransAmerican Waste Industries, Inc.

J. David Green,

Sr. Vice President & General Counsel,

TransAmerican Waste Industries, Inc., 10554

Tanner Road, Houston, Texas 77041, (713)

956–1212.

Kim Van Winkle,

Assistant Attorney General, Texas Bar No.:

24003104, Office of the Attorney General of

Texas, P.O. Box 12548, Austin, Texas 78711–

2546, (512) 463–2185.

Order

It is so ordered, this 6th day of May,

1998.

Gladys Kessler,

United States District Judge.

[FR Doc. 98–16216 Filed 6–17–98; 8:45 am]

BILLING CODE 4410–11–M

DEPARTMENT OF JUSTICE

Antitrust Division

Notice Pursuant to the National

Cooperative Research and Production

Act of 1993—Enterprise Computer

Telephony Forum

Notice is hereby given that, on June

25, 1997, pursuant to Section 6(a) of the

National Cooperative Research and

Production Act of 1993, 15 U.S.C.

§ 4301 et seq. (‘‘the Act’’), the Enterprise

Computer Telephony Forum (‘‘ECTF’’)

has filed written notifications

simultaneously with the Attorney

General and the Federal Trade

Commission disclosing changes in

membership. The notifications were

filed for the purpose of extending the

Act’s provisions limiting the recovery of

antitrust plaintiffs to actual damages

under specified circumstances.